mm OlnrttfU Slam ^rl|nnl ICtbrarg iiaratiaU iEquttg fflnllettton (gift of 1. 3. MaraljaU. iCffi. 1. 1394 CORNELL UNIVERSITY LIBRARY 1924 084 263 304 \1 Cornell University 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/cu31924084263304 MANUAL OF EQUITY PLEADING AND PRACTICE As modified by The New Federal Equity Rules WITH FORMS By EUGENE A. JONES of the District of Columbia Bar WASHINGTON JOHN BYRNE AND COMPANY COPTEIGHT, 1916 BY Eugene A. Jones. PREFACE. Professor Boke in his careful selection of illustrative cases on equity jurisprudence^ observes the marked in- fluence that the right of discovery (that "great engine for the discovery of truth * « * by the examination of the parties on oath")^ has had upon modern legislation; and cites as examples the inquisitorial powers conferred by the acts creating the Interstate Commerce Commission, the various Public Utilities Commissions, etc. The writer shares his views and ventures to supplement them by point- ing to the same influence in matters relating to procedure, e. g., the provisions for the examination of parties for the discovery of assets under the Bankruptcy laws, the exam- inations in Supplementary Proceedings, and the provisions of the various Procedure Acts requiring affidavits of the parties in support of their pleadings. There is ample authority for the assertion that the ad- ministration of this right was the foundation of the broad jurisdiction acquired by the English Court of Chancery, and but little reflection compels the belief that the entire body of the rules governing the pleadings in equity are based upon it. The fact that so many cases in the old reports involve the consideration of demurrers and pleas to the discovery alone, invites belief that they were first introduced as a defense only to discovery, and that their use as a defense to the relief was, comparatively speaking, an innovation. The influence of discovery in shaping the forms of the pleadings is further shown by analysis of the decisions wherein a plea was required to be supported by an answer ; wherein the benefit of the plea was ordered saved to the defendant at the hearing ; wherein a plea was ordered to stand for an answer with liberty to the plaintiff to except to it as such. The cases wherein such orders were made each betray the anxiety of the Chancellor so to mould the pleadings and orders that no violence be (1) Oases in Equity, by George H. Boke (Exchange Professor, Yale, 1916). (2) Spence's Equitable Jurisdiction, p. 329. iii iV PREFACE. done to the plaintiff's right of discovery, nor any infringe- ment of the defendant's right to protection therefrom oc- cur. While the works of Mitford (Lord Eedesdale), Daniell, Story, Shipman and Van Zile are all pregnant with this idea, in none of them is attention forcibly drawn to it, and the writer has thought that a treatment of the subject from that angle might tend to lighten the labors of the student (for whom this treatise is primarily intended) and also interest the bar. These pages are the expression of that thought. Important changes in the pleadings and practice in equity have been effected by the new rules,^ but it has already been judicially declared that no right of discovery has been impaired thereby, nor any right of protection therefrom diminished;^ and that the new provisions are "substantially similar to the Code procedure prevailing in most of the States and are clearly intended to simplify pleadings and do away with many technicalities thereto- fore required."* In the arrangement of the text the author has endeav- ored to follow the style of the excellent modern works of Shipman and of Van Zile, and some of the forms of the older bills (revivor, etc.), have been taken from Daniell's Chancery Pleading and Practice. The Author would say to the student, that while the majority of the decisions quoted and cases cited are those of the Federal courts, this treatise is by no means intended to cover the subject of Federal Procedure; it is only in- tended to point out the fundamental differences between the pleadings in equity and those at law, and presupposes an acquaintance with the latter. As code pleading is a statutory fusion of the two, and varies materially in the several States, an exact knowledge of more than one code may prove useless as well as difficult to acquire. Certainly the young lawyer who is sound in his principles of common law and equity pleading may, with the provisions of his State code before him, be credited with ability to plead correctly. (1) See Appendix. (2) Speidel Co. y. Barstow, 232 Fed., 617. (3) Trieber, J., in U. S. v. United Shoe Machinery Co., (Dist. Ot., E. D., Mo.), opinion June Y, 1916. PREFACE. V Invaluable assistance in the preparation of the work has been rendered by Mr. Benjamin B. Pettus of the bar of the District of Columbia, appreciation for which is here sincerely expressed. Etjgbnb a. Jones. Washington, D. C, Sept. 1, 1916. TABLE OF CONTENTS. CHAPTER I. Origin and Jurisdiction of Courts of Equity. Section. Page. 1. Introduction, 1 2. Meaning of the phrase Plain, Adequate and Complete Eem- edy at Law, 7 3. Jurisdiction of Courts Generally, 11 CHAPTEE II. Pleadings In Equity Contrasted With Those at Common Law. 4. Definition of Pleading, 15 5. The Various Eorms of Pleadings in Equity, 16 6. Limitations upon the Eight of Discovery, 22 CHAPTEE III. Eequisites of the Bill. 7. The Bill, 29 8. Contents of the Bill, 31 9. Certainty 41 10. Further Particulars, 43 11. Tender, 43 12. Familiar Vices of Pleading, 43 13. Multifariousness, 45 14. Scandal and Impertinence, 50 CHAPTEE IV. Various Forms of Bills Defined. 15. Classification of BiUs, 54 16. Bills of Discovery, • • 56 17. Bills to Perpetuate Testimony, 57 18. Bills to Examine Witnesses De Bene Esse, 60 19. Bills of Certiorari, 61 20. Billsof Interpleader, 61 20a. Cross Bills, 64 20b. Amendments, 68 vii Vlll TABLE OF CONTENTS. CHAPTEE V. Parties, Process, Appearance and Default. Section. Page. 21. Parties, Y2 22. Process, Appearance and Default, 78 CHAPTEE VI. Various Forms of Defenses Defined. 23. Defenses in General, 84 24. The Demurrer, now known as the Motion to Dismiss, 92 25. Pleas, 97 26. The Answer, 107 27. Disclaimer, l 116 27a. Eeplication, 116 CHAPTEE Vn. Eeceivers, Injunction, Nb Exeat. 28. Interlocutory Applications and Proceedings, 119 29. Eeceivers, 120 30. Eeference to a Master, 121 31. Ne Exeat, 123 32. Injunctions, 125 CHAPTEE VIII. Evidence, Hearing, Decree and Execution. 33. Evidence and Hearing 132 34. Decree, 135 35. Execution, 138 CHAPTEE IX. Eehearing, Eeview and Appeal. 36. Eehearing, 145 37. Bills of Eeview, 146 38. Appeals, 148 APPENDIX. 1. Forms in Equity 152 2. New Equity Eules, 197 3. Index of Cases Cited, 4. General Index, 5. Index to Eules, TABLE OF CASES CITED. Adamson v. Shaler, HI Adler-Goldman Com. Co. v. Williams, 9Y Adriaans v. Lyon, . . 103, 104 Alabama v. Burr, 44 Alexander y. Fidelity Trust Co., 9Y American L. & T. Co. v. Cen- tral Vt. E. Co., 121 Ambler v. Choteau, 9, 41, 44 Angell V. Angell, 58 Appel, In re, 125 Atherton y. Atherton, 80 Austin V. Eiley, 146 Ayres v. Carver, 67, HI B. B. & O. E. E. V. Hostetter, . 80 Bank v. Finch, 83 Y. Sherman, 68 Bank of F. S. v. Eitchie, ... 148 Barney v. Baltimore, 73 Bassett v. Hutchinson 150 Beecher v. Marquette, Etc., Co., 148 Bessette v. W. B. Conkey Co., 141 Blakemore v. Glamorganshire Canal JSTav. Co 125 Bonaparte v. Camden, Etc., Ey. Co., 128 Borgalthous v. Farmers' Ins. Co., 150 Boyce v. Grundy, 8, 9 Boyd, Ex parte, 57 Boyd V. N. Y. & H. E. Co., . . 32, 97, 107 Bradford v. Tennessee, .... 65 Bradley, Ex parte, 141 Brandon Mfg. Co. v. Prime, 67 ix Broderick's Will, 8 Brown v. Guarantee Trust Co., 46 V. Swann, 57 Bryan v. Sanderson, 139 Buffalo Specialties Co. v. Van Oleef, Ill Burgess v. State, 57 Bumham v. Eempton, 125 Buzard v. Houston, 9 C. Cammack v. Carpenter, .... 42 Cardozo v. Baird, 129 Carlisle v. Stevenson, 125 Carr v. District Court, 131 Cartwright v. Sou. Pac. Co., 10 Case Plow Works v. Finks, . 121 Central Nat. Bank v. Conn. Mut. L. Ins. Co., 44,88 Central Trust Co. v. Grant, . 147 Chambers v. Chalmers, 44 Chicago Union Bank v. Kans. City Bank, 121 Clark V. People, 140 Clarke v. White, 115 Cole Silver Min. Co. v. Va., Etc., Water Co., 136 Coleman v. Coleman, 137 Colgate V. Telegraph Co., . . 57 Collins V. Bradley Co., 10 Comer v. Felton, 121 Conard v. Atlantic Ins. Co., 96 Connolly v. Belt, 31 Craig V. Smith, 147 Crane v. McDonald, 62 Cross V. Del Valle, Ill Cubbins v. Miss. Eiver Com., 10 CuUiford, Ex parte, 143 Culpepper v. Gorrell, 150 Curriden v. Middleton, .... 10 TABLE OF CASES CITED. D. Dalzell v. Manufacturing Co., 103 Daniels t. Teamey, 11 Darden v. Burns, 64 Davis V. Speiden, 147 Day Company v. Mountain, 134 Denton v. Denton, 124 Destructor Co. v. City of At- lanta, 97 DiUon V. Barnard, 94 Donaldson v. Wright, 94 Dows V. Chicago, 68, 111 Doyle V. San Diego Land Co., 74 Dravo v. Fabel, 116 Droop V. Eidenour, 88 E. Electric Boat Co. v. Lake Torpedo Boat Co., Ill Ellerbe, In re, 144 EUice V. Eoupell, 59 Ensminger v. Powers, 147 Erb V. Morasch 121 Erhardt v. Boaro, 125 F. Parley v. Kittson, 103 Farmers' Loan & Trust Co., petitioner, . . ; 136 Farmers' L. & T. Co. v. Lake, 29 Farrar v. United States, .... §1 First Nat. Bank v. Chehalis Co., 44 Fisher v. Munsey Trust Co., 79 Forquer v. Forquer 137 Foster v. Goddard, 31 French v. Eobrchard, 64 Friedrichsen t. Eenard 10 G. Garland v. Davis, 68 Giant Powder Co. v. Gal., Etc., Works., 145 Giesy v. Truman, 103 Gilbert v. Colt, 124 Gillespie v. Moon 39 Glass V. Hulbert, 39 Goldschmidt Thermit Co. v. Primos Chem. Co., 10 Gompers v. Buck's Stove & Eange Co., 126, 130, 143 Goodno V. Hotchkiss, 116, 118 Grant v. Phoenix L. Ins. Co., 88 Great Western Telegraph Co. V. Purdy, 56 Greeley v. Lowe, 7 Grether v. Wright 7, 8 Grosholz V. Newman, 31 H. Haddock v. Haddock, . 14, 80 Hall V. McPherson, 65 Hall V. Stout, 59 Hart V. Albany, 150 Hawthorn v. Kelly 124 Heartt v. Coming, 101 Hecksher v. Penna. Steel Co., 10 Heinze v. Butte & B. Consol. Min. Co., 143 Hendryx v. Fitzpatrick, 142 Hickey, Ex parte, 144 Hipp V. Babin 8 Hood V. Inman, 51 HoUins V. Brierfield, ...... 96 Hopper V. Hopper 91 Horton v. Baptist Church, . 63 Howard v. E. Co 139 Hughes V. Blake, 102 Hurst V. Saunders, 129 Hutchins v. Munn 129 Huysman v. Newspaper Co., 29 Hyams v. Old Dominion Co., 97 Gable v. Seiben 49 Gagnon v. TJ. S., 68 Gaines v. Chew, 45 Galveston t. Gonzales 96 Garland, Ex parte, 144 Illinois V. Eailroad Co., 137 Insley v. United States, 96 Iowa Washing Mach. Co. v. Montgomery 133 Isham V. Miller, 116 TABLE OF CASES CITED. XI Jackson v. Ashton, 31 Jaques v. Trustees, 150 Johnson v. Brown, 50 V. Curteis, 44 V. Eoberts, 43 Jonas H. French, The, 121 Jones V. Sampson, 124 K. Karrick v. Wetmore, 78 Kennedy v. Bank of Ga., . . . 147 V. Creswell, 103, 104 Killian v. Ebbinghaus, 8 Kimberly v. Arms, Kingsbury v. Buckner, . . 110, 147 Kirk V. Wilwaukee Dust Col- lector Mfg. Co., 141 Klauder-Weldon Co. v. Giles, 111 Lalance, Etc., Mfg. Co. v. Habermann Mfg. Co., .... 150 Lamon v. McKee, 31 Langdon v. Goddard, 51 Lawrence v. IngersoU, 125 Lee V. Braxton, 148 Lehman r. Tallassee Mfg. Co., 65 Lewis V. Cocks, 8 Litchfield v. Ballou 9 Lockhart v. Horn, 82 Luten V. Camp, 134 Mc. McCartney v. Fletcher, .. .26,46 McClaskey v. Barr, 65 McConihay v. Wright, 8 McFarland v. W. A. & Mt. V. Ey., 129 McGehee v. Polk, 124 McGowan v. Parish, 9 McLarren v. McLarren, .... 149 McLean v. Nixon, 148 McLeod, Ex parte, 141 McPherson v. Cox, 65, 110 M. Marconi Wireless Tel. Co. v. Nat. Elec. Co., 110,111 Mason, Adm'r., v. Hartford, Providence, Etc., Ey., 117 Mattocks y. Tremain, 125 Maxfield V. Freeman, 148 Mich. & Ohio Plaster Co. v. White, 63 Motion Picture Pat. Co. v. Eclair Film Co., m Munday v. Knight, 44 N. N. C. & St. L. Ey. V. United States, 150 Neale v. Neales, 31, 70, 118 Nelson v. Hill, 50 Neves v. Scott, 7 Nevitt, In re, 130, 143, 144 New England Bank v. Lewis, 44 New Orleans v. Steamship Co., 141 North V. Herrick, 133 Northwestern Mut. L. Ins. Co. V. Kidder, 62 O. Oelrichs v. Spain, 9 Owings' Case, 139 P. M. Co. V. Ajax Eail, Etc., Co., 134 Pacific E. Co. V. Ketchum, ... 74 Packard v. Stevens, 62 Parkersburg v. Brown, 9 Palmer v. Mure, 44 Parsons v. Bedford, 149 Patomi V. Campbell, 63 Paxton V. Douglas, 23 Payne v. Hook, 7 Pennoyer v. Neff, 13, 79 Pennsylvania v. Wheeling, . 7, 8 People V. Barton, 124 Xll TABLE OF CASES CITED. People V. Stratton 29 Phelps V. McDonald, 93 Phillips V. Seymour, 68 Pierce v. Brady, 148 Portland Wood Pipe Co. v. Slick, Ill Preston v. Smith, 57 Providence Rubber Co. v. Goodyear, 110, 111 E. . Ealston Steel Car Co. v. Nat. Dump Car Co., 9Y Reese, In re 141 Eeid v. McCollister, 115 Rex V. Edwards, 143 Riohter v. Jerome, 60 Ricker v. Powell, 147 Rindscopf v. Platto 57 Ritchie v. McMuUen 44 Riverside v. Menefee, 80 Robinson v. Campbell, 8 V. Guild 48 Rogers v. Rutter, 49 V. Tucker, 74 S. Saint Louis v. Knapp, 41 Salt's Textile Mfg. Co. v. Tingue Mfg. Co., 110 Sandifer v. Sandifer, 42 Scott V. Neely, 7, 8 Settlemeier v. Sullivan, .... 80 Shaw V. Bill 56 Shelton v. Piatt 44 V. Van Kleeck 147 Shields v. Barrow 48, 49, 67, 69, 73, 74 Slocum V. N. T. Life Ins. Co., 149 Smith V. Amer. Nat. Bank, . 7 V. East India Company, 27 V. Reynolds, 94 V. Swormstedt, 75 V. "Woolfolk, 56 Southard v. Russell, 148 Southern Pacific Co. v. Den- ton, 96 V. U. S., 117 Southwestern Surety Co. v. Wells, 97 Spencer v. Lapsley 96 V. Peek, 59 Speidel v. Barstow Co., .112,134 Star V. Brown, 65 State V. Houston, 129 V. Lenahan, 148 State, ex rel.. Van Orden v. Sauvinet 144 Stein V. Robertson, 48 Stephens v. Van Buren, .... 82 Story V. Livingston, 96 Sturges V. Portis Min. Co., . 10 Swift & Co. V. United States, 40 Swope V. Villard, 121 Sydney v. Mugford, Ill Tate V. Fields, 135 Taylor v. Benham, 116 Taylor v. Goodrich, 144 Terrell v. Allison, 139 Terry Steam Turbine Co. v. Sturtevant, Ill Thomas v. Brockenborough, 147 Thompson v. Allen County, . 9 V. Central Ohio E. Co., 6,8 V. McKim, 150 V. Maxwell, 148 V. Thompson 80 Thomson v. Wooster, 82 Tillinghast, Ex parte, 141 Tilton V. Cofield, 68 Tood V. Daniel, 150 Toof V. Foley, 79 Townsend v. Vanderwerker, 47 Townshend v. Stangroom, . . 39 Tufts V. Tufts, 145 Tyler, In re, 121 Tyler v. Ludlow, 97 V. Savage, 9 U. Union Bank v. Stafford 73 Union Bank of Georgetown V. Geary 116 TABLE OF CASES CITED. Xlll United States v. Amer. Bell Tel. Co., 44 V. Berry, 141 V. Howland, Y, 8 V. Lancaster, 144 V. McLaughlin, 57 Y. United Shoe Machin- ery Co., 41 V. Wilson, 144 U. S. Expansion Bolt Co. v. Kroncke Hardware Co., . . Ill V. Vacuum Cleaner Co. v. Amer. Eotary Valve Co., 110 Victor Talking Machine Co. V. Sonora, 133 W. "Walden v. Bodley, 71 Walden v. Skinner, 73 Waldo V. Wilson, 10, 29 Walker v. Jack, 113 Walker v. Sauvinet, 7 Wallace v. Degree, 12 Walsh V. Ehall 63 Washington L. Ins. Co. v. Gooding, 63 Watson V. Sutherland, 9 Watts V. Bank, 65 Wells V. Cruger, 83 Wells-Fargo v. Miner 62 Westervelt v. Library Bureau, 103, 104 Whitaker v. Middle States Co., 42 Whitchurch v. Hide, 125 Whitehead v. Shattuck, 8, 9 Whiting V. Bank of U. S., . . 147 Wilber V. WooUey 130 WiUiams v. Gardiner, 93 V. Kinsey, Ill V. Matthews, 64 Wilson V. American Ice Co., 97 v. Stolly, 116 Window Glass Mach. Co. v. Brookville, Etc., Glass Co., 27 Wood V. Dummer, 74, 79 Woodruff V. North Bloom- field, Etc., Min. Co., 141 Woodward v. Campbell, 49 Woolam V. Heam, 39 Wright V. Barnard, 11 Wylie V. Cox, 96 Y. Teaton v. Lenox, 47 CHAPTER I. ORIGIN AND JURISDICTION OF COURTS OF EQUITY. § 1. Introduction.— The principles of equity pleading are not the product of free invention, but the outgrowth of circumstance and necessity arising at the time the English Court of Chancery began to administer, as a separate sys- tem, the body of rules and principles now known as equity, as distinct from the customary and statutory law admin- istered generally in the various established judicial tri- bunals of the time, and known as the cammon law. Though the terms equity and chancery are constantly used synony- mously, they never signified the same thing. Chancery de- noted the court, and equity the principles of rights and remedies administered by it. The English Court of Chan- cery administered Equity Jurisprudence, but it had juris- diction in other matters also. It is not the purpose of this treatise to trace the source of equity as a branch of our jurisprudence,^ but some allu- sion to the court wherein the rules regulating the pro- cedure in equity were formulated is deemed necessary. It is to be remembered that the English Court of Chancery was not established for the purpose of determining con- troversies in equity, as our modern courts of equity; its possession of that jurisdiction was merely incidental to other and larger powers conferred upon the office of Chan- cellor from which its name is derived. In England the judicial power resides theoretically in the CrowTi, and in ancient times it was exercised by the (1) The origin, history and growth o£ Equity Jurisprudence has been a subject of much speculation; the inquiring student will find a considerable bibliography upon it, and no little diversity of opinion concerning it; but most authorities agree that the reason and neces- sity of its existence was the inability of the law courts to redress numerous grievances not falling under any of the writs necessary to set the machinery of the law courts in motion. Consult Spence's Equitable Jurisdiction, Campbell's Lives of the Chancellors. 1 1 2 OEIGIN AND JURISDICTION OF COUETS OF EQUITY. King in person. Growth of population and consequent liti- gation made this personal administration of justice im- possible and the King was obliged to delegate judicial powers to others. At first the persons so selected were not clothed with general judicial authority but acted in each case upon a specific order of the King prepared by his sec- retary, the Chancellor, bearing the Great Seal of the Eealm, of which the Chancellor was the official custodian. In course of time these Eegal orders issued by the Chancellor took the form of writs, their issuance became a matter of course, and the persons to whom these cases were referred for trial gained the dignity of Justices of the King's courts of Common Law, with judicial powers limited only by the language of the writs issuing out of Chancery. The remedies afforded by the Common Law courts under these writs from Chancery proved, however, altogether in- adequate to the needs of the people, and cases frequently arose in which it was apparent that a wrong had been done, but for which the Chancery had provided no appropriate writ. The suitor finding himself without a remedy in the established tribunals of his country, was again obliged to appeal to his Sovereign, who, as the source of all justice, the residuary of the undelegated judicial power, might by edict redress his wrongs. These personal appeals or peti- tions were also referred by the King to his Chancellor (who as the "Keeper of the King's Conscience" was nearest qual- ified to act as his proxy in such matters), with power, in case no adequate writ was to be found in the King's es- tablished courts (the courts of Common Law) , to give such relief as should be "consonant to honesty." As the popula- tion grew and the relations of individuals with regard to their property rights became more complex and the rigor of the common law and the poverty of its remedies became more sensibly felt, these references to the Chancellor in- creased, until from exercising only an occasional authority, delegated expressly in each case, he acquired an established and permanent jurisdiction, and as early as the reign of Edward Third, what at one time had been regarded as merely a department or bureau appurtenant to the office of Chancellor had become recognized as a distinct branch of the judiciary under the name of the Court of Chancery. In the thirteenth year of the reign of Edward First (A. ORIGIN AND JUEISDIOnON OF COURTS OF EQUITY. 3 D. 1285), Parliament enacted the statute, Westminster II, the language of which suggests the situation we have just described. It provided that — "Whensoever from henceforth it shall fortune in chancery that in one case a writ is found, and in like case (in ccmsimili casu) falling under like law and re- quiring like remedy is found none, the clerks of the chancery shall agree in making the writ ; or the plain- tiffs may adjourn it until the next parliament, and let the cases be written in which they cannot agree, and let them refer themselves until the next parliament (and) by consent of men learned in the law a writ shall be made, lest it might happen after that the court should long time fail to minister justice unto com- plainants."^ In other words, the statute authorized the clerks in Chan- cery to frame new writs suited to the circumstances of each case as it arose. As a result of this legislation, the clerks did devise the Common Law action of Trespass on the Case, but they still found it impossible to devise writs that would fit every situation, for there were too many cases arising in which no writ could be so framed as to raise an action which would terminate in a single judgment that would do complete justice among the parties. If the purpose of the Statute Westminster II was to en- large the jurisdiction of the law courts to include all cases, equitable as well as legal, that purpose failed, and the occa- sional authority exercised by the early Chancellors con- tinued to grow until there was evolved the English High Court of Chancery, with powers and jurisdiction which overshadowed in time its older contemporaries, the law courts. The English colonies in America were settled either just before or during the period when chancery was exerting its greatest influence upon the legal system of the mother country. In the case of the judiciary as in all other phases of civic life, the institutions which the colonists founded in their new homes were copies, often crude and imperfect (2) Translation from English Statutes at Large by Danby Pick- ering, quoted in Page on Contracts, p. 13. 4 ORIGIN AND JURISDICTION OF COURTS OP BQUITT. of those with which they had been most familiar in Eng- land. Accordingly the idea of a court of chancery, admin- istering a peculiar system of jurisprudence of its own, found lodgment and expression in the judicial framework of all the colonies. In most of them equity powers were conferred upon the royal governor, acting usually in con- junction with his council, but in Khode Island during most of the colonial period the assembly constituted the chan- cery court, and in some other colonies the legislative branch exercised the functions of a chancellor. But in all save one of the colonies equitable relief was administered by some tribunal distinct from the common law courts. The excep- tion was Pennsylvania, where until almost the middle of the nineteenth century, equity was administered during the greater portion of the period, not only by the ordinary courts, but in the forms and according to the procedure of the common law. The other commonwealths, in the course of their development, either established regular courts of equity, presided over by chancellors, or, as ia New England, conferred equity powers upon the ordinary courts, to be exercised in accordance with the forms and procedure of chancery.^ We find therefore that at the time of the separation of the American colonies from England, there were, both in the parent country and in the colonies, these two separate and distinct systems, with separate and distinct rules of pleading and practice; administering separate and dis- tinct remedies, and presided over by separate and distinct judicial officers. At the present day the states of the Union may be con- veniently divided into three groups or classes, with respect to Equity jurisdiction. The first embraces those states wherein distinct courts of chancery exist, and includes New Jersey, Delaware, Tennessee, Mississippi, Alabama and Vermont. The second class is composed of those states wherein chancery powers are exercised by judges of com- mon-law courts, but according to the course and practice of chancery. These states are Maine, New Hampshire Massachusetts, Khode Island, Pennsylvania, Maryland Virginia, West Virginia, Illinois, Florida, Michigan Ar- cs) See article contributed by Chas; S. Lobingier, Judge TT S Court for China, (H Am. & Eng. Encyc. Law, 153). ORIGIN AND JURISDICTION OF COURTS OF EQUITY. 5 kansas and Oregon. The District of Columbia and the federal courts are within this second class. The third class of states includes, it is believed, all those which have not been mentioned as falling within the other two classes. In these states the distinction between actions at law and suits in equity has been abolished ; but, as has been already stated, certain equitable remedies are still administered under the statutory form of the civil action.* This dual system of administering justice has been bit- terly assailed and vigorously defended by various students of our jurisprudence, and for more than a century, the fusion of Law and Equity, and reform in pleading and practice have been agitated. The views pro and con of the controversialists in this regard are stated in a note by the late Professor Tyler of the Columbian University, in his introduction to "Mitford's and Tyler's Pleadings and Prac- tice in Equity."^ (4) Bispham on Equity, sec. 15. (5) Professor Tyler says: "As there is an epidemic hostility against law and equity as separate systems, it is well to refer to what is said by Mr. Austin in 'The Province of Jurisprudence Determined' on the subject, as he is recognized as high authority for the fusion of law and equity into one system of jurisprudence. 'Having sketched (says he) an historical outline of jus praetorium (which is intimately connected with the jus gentium as this last was understood by the earlier Eoman lawyers), we shall briefly compare the equity dispensed by the Eoman praetors with the equity administered by the English Chancellors ; from which brief comparison, it will amply appear, that the distinction of positive law into law and equity (or jus civile and jus praetorium) arose in the Eoman, and also in the English nation from circumstances purely anomalous, or peculiar to that community ; and from which brief comparison it will also amply appear that the distinction is utterly senseless when tried by general principles, and is one prolific source of the needless and vicious complexness which disgraces the systeme of jurisprudence, wherein the distinction obtains". "This criticism (says Professor Tyler) by Mr. Austin is itself 'utterly senseless' when tried by the fact that the distinction between law and equity is one in a scheme of practical justice adapted to two different classes of causes of litigation, which differ, not in their relations to principles of justice, but in relation to the procedures that are best for applying those principles to the two different classes of causes. The principles of justice are the same at law and in equity, but are applied by different procedures, because of the dif- ferent practical exigencies of justice, which arise from the inherent and unalterable differences in suits at law and in equity." 6 OEIGIN AND JURISDICTION OP COURTS OF EQUITT. Perhaps if the matter were res Integra and it were left to the bench and bar of the country to evolve a ^stem of courts, pleading and practice, unhampered by precedent, or the constitutional guaranties of trial by jury, in cases where according to the course of the Common Law either party were entitled to it, some method of submitting a con- troversy to the courts applicable alike to legal and equit- able proceedings could be devised : but if it were uniform it would mean either the sacrifice of the jury system or the extension of that system to cases to which it does not be- long. There are many issues arising in equity that it were impracticable, if not impossible, to submit to a jury, and so long as the jury system remains a part of our jurispru- dence, the inherent differences in legal and equitable pro- ceedings and the different machinery for the operation of the courts when acting in the performance of their respec- tive functions must continue to exist. The propriety of this dual system was recognized by our laws at an early day, and our federal courts of equity were modeled after the English courts of chancery, the test of whose jurisdiction was the inadequacy of the remedy at law. This axiom of jurisdiction was embodied in the first Federal Judiciary Act (1789), which provides that "suits in equity shall not be sustained in either of the courts of the United States in any case where a plain, adequate and complete remedy may be had at law." Section five of the act of Congress, approved June 1, 1872, provides "that the practice, pleadings and form and modes of proceeding in other than equity and admiralty causes in the circuit and district courts of the United States shall conform as near as may be, to the practice, pleadings and forms and modes of proceeding, existing at the time in like causes in the courts of record of the State within which such circuit or district courts are held." Thus it is seen that whatever the controversialists may have to say upon the subject of our dual system it is firmly fixed in our jurisprudence.* (6) Numerous decisions have recognized and perpetuated this dual system. In Thompson v. KaOroad Companies (6 Wall., (TJ. S., 137) the court said: "The Constitution of the United States and the acts of Con- gress recogniiie and establish the distinction between law and ORIGIN AND JURISDICTION OF COURTS OF EQUITY. 7 § 2. Meaning of the Phrase, Plain, Adequate and Com- plete Remedy at Law. — The provision of the Federal Judi- ciary Act that suits in equity shall not be sustained iu either of the courts of the United States where a plain, adequate and complete remedy may be had at law,'' is mere- ly affirmative of the general doctrine of courts of equity with respect to the scope of their jurisdiction. It requires the Federal courts to adjudicate according to the rules of equity. The remedies in the courts of the United States are, at common law or in equity, not according to the practice of the State courts, but according to the principles of common law and equity, as distinguished and defined by that country from which we derive our knowledge of these principles." In Smith v. American National Banh (89 Fed. Eep., 839), the court said: "The courts of the United States are courts of limited juris- diction, which must be exercised in the mode pointed out by the Constitution and Acts of Congress. They are without power to do away with the distinction between law and equity, the forms used and the causes and reasons which distinguish the one from the other, even if they were so inclined." This jurisdiction is uniform in the federal courts and the practice therein is regulated by the rules adopted by themselves and by the Supreme Court of the United States. (Z7. S. v. Howland, 4 Wheat. (U. S.) 115; Neves v. Scott, 13 How., (U. S.) 272.) Their jurisdic- tion is that enjoyed by the High Court of Chancery in England {Payne v. HooTc, 7 Wall., (U. S.) 430), whose practices and usages may be said to be the common law of chancery. (Pennsylvania v. Wheeling, 13 How., 563.) Their jurisdiction cannot be afEected by state legislation, though it is within the province of state legisla- tures to create new remedies in equity, which will be enforced in the federal courts, provided they do not infringe upon the constitutional right of trial by jury; (Greeley v. Lowe, 155 U. S., 75; Grether v. Wright, 75 Fed., 749.) and statutes purporting to create new equitable remedies, which in fact amount to the blending of claims properly cognizable at law, with demands for equitable relief, will not be en- forced in the federal courts; such equitable relief in aid of legal action must in the federal courts be sought in separate proceedings — an action at law and a bill in equity — to the end that the right to a trial by jury may be preserved intact. (Scott v. Neely, 140 U. S., 109.) As the provision of the 7th Amendment of the Federal Consti- tution guaranteeing a trial by jury in suits at common law where the value in controversy exceeds $20 applies only to the Federal Courts, the states, unless prohibited by their own constitutions, may as to their own courts, abolish trial by jury altogether. (Walher v. Sauvinet, 92 U. S., 90). (7) Act Sept. 24, 1789, eh. 20. 8 ORIGIN AND JURISDICTION OF COURTS OF EQUITT. the English chancery courts as they were administered at the time of the adoption of our Constitution* without re- gard to what may be exercised by the courts of equity of the several states;^ although an enlargement of equitable rights by the statutes of the states may be administered by the Federal courts as well as by the courts of the states," provided the equitable remedy thus created does not im- pinge upon the right to trial by jury.^^ The provision is mandatory upon the courts, and hence, even though the objection be not urged, the court may of its own motion refuse to decree where a plain defect of jurisdiction appears.^^ The reference to the remedy at law means the remedy at common law as it existed at the date of the Judiciary Act, and does not refer to remedies which might be conferred by statute on the state courts," hence if a plain, and ade- quate remedy exists at law, a defendant's constitutional right to a trial by jury in the Federal courts cannot be im- paired by reason of the fact that a state statute has con- ferred a remedy upon its own courts of equity.^* The interpretation and application of this rule has been before the courts many times, and it has been held : First, that in all actions which seek to recover specific property, real or personal, or damages for its detention, or a money judgment for breach of a simple contract, or damages for injury to person or property ; in fact, in any case wherein the wrong complained of can be compensated by a pecuni- (8) Boyce v. Grundy, 3 Pet., U. S., 214. Penna. t. Wheeling, 18 How., U. S., 462. (9) U. S. V. Howland, 4 Wheat. U. S., 108. The state courts are entirely creatures of the state legislatures; and except in so far as these legislatures are limited by Constitutional provisions state or federal, they may confer on their own courts any jurisdiction that whim, caprice, or popular folly may suggest. (ID) Broderick's Will, 21 Wall, U. S., 503. Whitehead v. Shattuck, 138 TJ. S., 150, (11) Grether v. Wright, Y5 Fed., 749. (12) Thompson v. Central Ohio E. Co., 6 Wall., 134. (13) McConihay v. Wright, 121 TJ. S., 201, Eobinson v. Campbell, 3 Wheat. TJ. S., 212, (14) Hipp V. Babin, 19 How., TJ. S. 271. Lewis V. Cocks, 23 Wall., TJ. S., 466, Killian v. Ebbinghaus, 110 TJ. S., 568, Soott V. Neely, 140 TJ. S., 106, ORIGIN AND JUEISDICTION OF COURTS OF EQUITY. 9 ary sum, the remedy at law is plain, adequate and com- plete." Second, that if the remedy at law is adequate in theory, it deprives equity of jurisdiction, although practically it may be inadequate to secure the money sued for. Thus, where judgments had been obtained against a county in Kentucky, and executions had been issued thereon and re- turned "no property found," and thereupon writs of man- damus had issued directing the justices of the county court to levy a tax to raise money for the payment of the judg- ments, the fact that the writs of mandamus had proved in- effectual because no officers could be found to perform the duty of collecting the taxes levied under the writs, does not give equity jurisdiction.^® Third, that equity jurisdiction having been once proper- ly invoked, is not lost by reason of the fact that the deci- sion of the cause may involve the determination of an issue which could be tried at law ; "A court of equiti/ ought to do justice completely and not hy halves," and a cause once properly in a court of equity for any purpose will ordinar- ily be retained for all purposes, even though the court is thereby called upon to determine legal rights that other- wise would not be within the range of its authority.^'' Fo^irth, that it is not enough that there be a remedy at law ; it must be as plain and adequate, as practical and ef- ficient to the ends of justice, and its prompt administra- tion, as the remedy in equity.-'* (15) Parkersburg v. Brown, 106 TT. S., 500, Ambler v. Choteau, 107 IT. S., 586. Litchfield v. Ballou, 114 U. S., 190, Buzard v. Houston, 119 U. S., 352, Whitehead v. Shattuck, 138 U. S., 146. (16) Thompson v. Allen County, 115 U. S., 550, (17) "Ajfter the making of the consent decree and the deposit of the money in court, the situation of this case was substantially that of an interpleader suit after the making of a decree for interpleader and the dismissal of the stakeholder from the cause, with the issue as between the conflicting claimants limited by stipulation to the amount justly due, etc." McGowan v. Parish, 23Y U. S. 295. (18) Boyce v. Grundy, 3 Peters, U. S., 215, "Watson V. Sutherland, 5 "Wall., IJ. S., 74, Oelrichs v. Spain, 15 Wall., U. S., 211, Tyler v. Savage, 143 U. S., 79. 10 ORIGIN AND JURISDICTION OP COURTS OF EQUITY. Consequence of Suing in the Wrong Court. — Former- ly the consequence of mistaking the forum was a dismissal of the suit. But noAV by virtue of Rule 22 a suit may be transferred to the law side of the court, ^' there to be pro- ceeded with as if instituted there. It has been thought by some of the bar that by virtue of a recent act of Congress*" the like may be done with a proceeding erroneously com- menced on the law side which should have been commenced in equity. But the only reported case on that point tip to this time holds that the Act of Congress referred to does not authorize such transfer of a law suit to the equity side, but only permits an amendment to the pleadings.*"* In a case where a suit erroneously commenced in equity was transferred to the law side of the court, the question arose whether the statute of limitations was stayed as of the date of the institution of the proceedings, or the date of their transfer to the proper forum, and it was held that if the new petition or complaint filed on the law side after the transfer to that court states a new and different cause of action, it does not relate back to the filing of the original bill, so as to prevent the running of the statute of limita- tions. Thus, where a bill to rescind the sale of land for fraud and to recover incidental damages, was transferred to the law side because the plaintiff had put it out of his power to restore the vendor to his former position, an amended petition filed on the law side claiming damages for the fraud was held to set up a new cause of action and was barred by the statute of limitations, though the cause of actions thus set up was not barred at the time of the filing of the original suit.*"'' (19) Goldschmidt Thermit Co. v. Primes Chem. Co., 216 Fed., 382, Cartwright v. Southern Pac. Co., 206 Fed., 234, Collins V. Bradley, 22Y Fed., 199, Goldschmidt Thermit Co. v. Primes Chem. Co., 225 Fed. Y69. Curriden v. Middleton, 232 U. S., 635, Oubbins v. Mississippi Eiver Com., 204 Fed. 299, Hecksher v. Penna. Steel Co., 205 Fed., 37Y, Sturges V. Portis Mining Co., 206 Fed., 534, (20) Act of March 3, 1915, 38 Stat. L., 956, (20a) Waldo v. Wilson, 231 Fed., 654. (20b) Friedrichsen v. Renard, 231 Fed. 882. ORIGIN AND JURISDICTION OF COURTS OF EQUITY. 11 Eule 23 provides that if in a suit in equity, a matter or- dinarily determinable at law arises, such matter shall be determined in the equity cause without sending the case to the law side of the court. This is in harmony with the principle above stated, to wit, — that the jurisdiction of equity having been once properly invoked is not lost be- cause the decision of the cause may involve the determina- tion of an issue that could be tried at law. So in a recent case where a claim for balance of salary was coupled with claims of an equitable character, the court said in denying a motion for the transfer of the case to the law side, "the dominant factor in determining the question of jurisdiction is to be found in the general scope and nature of the case as made by the bill and a decision on the question of the balance of salary is but an incident of the suit."^"" § 3. Jurisdiction of Courts Generally. — Jurisdiction is defined to be "the right to hear and determine,"^^ and courts have jurisdiction over such controversies only as have been duly committed to them by law. In this country the char- acter and scope of a court's jurisdiction is ascertained by reference to the statutes creating it. In considering the question of jurisdiction the student should have in mind two distinct concepts of the subject : First, the territorial extent or operation of the process and judgments of a given court, the territorial limitations of its judicial power; Second, the character of controversies it is empowered by the statutes to adjudicate, the organic limi- tations upon its judicial power. A personal judgment or decree for the payment of money rendered by a court of the State of Maryland, based upon personal service of process on the defendant in Pennsylvania, where he resided; a judgment of a Maryland court for the recovery of lands, in ejectment, in Pennsylvania, even though based on personal service of process on the defendant within the State of Maryland ; a judgment of conviction of a crime committed in the State of Pennsylvania rendered by a court of Mary- land, would all be void, because in the first case the de- fendant was beyond the territorial reach of the court's process, and in the other cases the subject-matter of con- (20c) Wright v. Barnard, 233 Fed., 329. (21) Daniels v. Teamey, 102 U. S., 418, 12 ORIGIN AND JURISDICTION OP COURTS OF EQUITY. troversy is beyond the territorial operation of the court's judgments.^* A judgment in ejectment rendered by an admiralty court, or a judgment of conviction of a crime by a court sitting in equity would be obviously void even if the parties consented that the court take jurisdiction, because such cases are outside of the scope of judicial power conferred upon such courts by the laws of their creation, they are not within their organic limits. Thus where plaintiffs seized goods of the defendant under a writ of replevin issued by an inferior court alleging the value of the goods to be $300, which amount was the limit of the court's jurisdiction, and having had judgment against him there, appealed to a court of general jurisdiction where a jury found the value of the goods to be |800 and had judgment against him for that amount, again appealed, it was held by the appellate court that the judgment of $800 was void for lack of juris- diction in the inferior court wherein the action had orig- inated, though no objection had been made on that ground in either of the lower courts, and notwithstanding the fact that the jurisdiction of both the lower courts had been in- voked by the plaintiffs themselves.** Consent cannot give jurisdiction in such a case.** The record of a judgment or decree to be valid as such, carrying its own verity with it, impregnable to collateral attack, and entitled to full faith and credit wherever and whenever brought in question, must show on its face juris- diction over the subject-matter, and either jurisdiction over the person, in proceedings in personam, or jurisdiction over the res or property, in proceedings in rem.^ (22) While a decree in equity has no more extra-territorial opera- tion than a judgment at law; under the maxim "Equity acts in per- sonam" her courts may, if all the parties to the litigation are before it, decree as to property lying outside of its territorial jurisdic- tion by commanding the parties to make conveyances of the land as directed by the decree and enforcing obedience by contempt proceedings. (23) Wallace v. Degree, 38 App. D. C, 143. (24) If the court o quo has no jurisdiction, then a court ad quern gains none by appeal, although the latter court had original juris- diction of -the subject-matter and might have entertained the case in the first instance; the maxim is "that which is void in the iegin^ ning cannot he cured iy waiver, acquiescence or lapse of time." (25) Notwithstanding that the court have jurisdiction of the subject-matter, it cannot proceed to a valid judgment or decree. ORIGIN AND JUEISDICTION OF COITRTS OF EQUITY. 13 Without the union of the former, and one or the other of the latter, judgments and decrees and all proceedings had thereunder are absolutely void, — "where the foundation fails, all falls to the ground."*' It is as much the function of the pleadings to present these jurisdictional matters, as it is to present the issues to be tried.*'' Jurisdiction of the subject-matter cannot be conferred by consent of the parties : the public has an interest in the preservation of the integrity of the jurisdiction of its con- stituted tribunals, a concern that their jurisdiction be neither enlarged nor diminished from that embodied in the legislative grant. The maxim "Consent takes away error"^^ yields to the higher one, "The welfare of the public is the supreme law.""^ When the record of the pleadings and judgment or decree shows that the court had jurisdiction, the propriety of the decision, however grossly irregular or manifestly erroneous it may appear to be, may not be questioned, except in a di- rect proceeding to set it aside, taken either before the same court or in an appellate court.'" It may not be collaterally unless (if the proceeding be in personam) personal service of process within the jurisdiction be had upon the defendant, or unless (if the proceeding be in rem) the res or thing or property is itself within the territorial limits of the court's jurisdiction. These propositions are illustrated by the case of Pennoyer v. Neff, 95 TJ. S., 714. The question involved was the| validity of a judgment for a specific sum of money rendered by an Oregon court against a non-resident of Oregon who had not been personally served with process but had been proceeded against under a statute authoriz- ing service by publication in certain cases. The Federal Supreme Court held: That a personal judgment rendered in a State court in an action upon a money demand against a non-resident of the State, without personal service of process upon him within the State, or his appearance in the action upon service by publication, is without any validity, and no title to property passes by a sale under an execution issued upon such a judgment. (26) Debile fundamentum fallit opus. (27) The Law Ee-stated — ^Hughes. (28) Consensus tollit errorem. Wharton's Legal Maxims, p. 55. (29) Salus populi est suprema lex. Wharton's Legal Maxims, p. 193. (30) Am. and Eng. Encyc. Law, 2d Ed., Vol. 17, p. 1042. 14 PLEADINGS IN EQUITY CONTRASTED WITH COMMON LAW. attacked. The maxim is "All things are presumed to have been rightly, legally and regularly done."^^ The rule against the collateral attack of judgments, orders and decrees rendered by a court having jurisdiction of the subject-matter and the parties, has its foundation in sound considerations of public policy, and is intended to give permanency to all judicial transactions and to rights acquired thereunder. If judgments and decrees of courts of competent jurisdiction could be collaterally avoided, there would be no certainty, no security, in judicial ac- tions. No confidence could be reposed in titles acquired through judicial proceedings, for no protection would be afforded to innocent purchasers. If the validity of a judg- ment could be contested collaterally, a second judgment, avoiding the effect of the first, without a direct or express annulment of it, would be subject to a like attack, and there would be no termination of litigation by a final decision. The maxim is "It concerns the State that there he am, end of litigation."^^ (31) Omnia praesumuntur rite et solemniter acta. The Law Re- stated — Huglies, p. 201. See Haddock v. Haddock, 201 U. S. 562, -where in a collateral proceeding, the right to introduce evidence to show a lack of juris- diction of the res, was sustained. (32) Interest reipublica ut sit finis litium. CHAPTEE II. PLEADINGS IN EQUITY CONTRASTED WITH THOSE AT COMMON LAW. § 4. Definition of Pleading.— The pleadings in equity are the written statements filed in court by the parties to the suit, setting forth the facts upon which they base their claims to relief, or the facts upon which they rely as a basis of immunity from liability. Their function is to present clearly and concisely the cause of the controversy and the position of the vai'ious parties with respect thereto. These, together with the process issued in the cause, the motions and petitions filed therein, during the course of the suit, the testimony of the parties and their witnesses when filed, and the orders and decrees made by the court, con- stitute the record of a suit in equity.^ A rudimentary knowledge of the pleadings in equity is more easily acquired than a similar acquaintance with the pleadings at common law, — and for this reason, — at com- mon law the respective forms of action were indicated and identified by the use of particular words in the declaration. In Debt and Covenant the plaintiff declared that the de- fendant "owes to and unjustly detains" a sum of money ; in Assumpsit, that the defendant "promised" something; in Trespass, that the wrong was done "with force and arms"; in Trover, that the property was "converted to the defend- ant's use" etc. These words were descriptive of the gist of the action, and the presence of one or the other of these ex- pressions determined the character of the action and the nature of the plea appropriate thereto. The employment of particular words, or fixed forms of expression was never a requisite of good pleading in equity, and an adherence to formal precedents, though often wise, is not essential. There are no formal words or phrases common to all Bills for Specific Performance, or to Bills to Foreclose Mort- (1) A recent writer gives us the following definition: "Pleadings are the juridical means of investing a court with jurisdiction of a subject matter to adjudicate it." The Law Ee-stated — Hughes. 15 16 PLEADINGS IN EQUITY CONTRASTED WITH COMMON L^W. gages, or to any of the various forms of bills. The char- acter of the bill is determined by the nature of the griev- ance stated and the relief prayed, and not by the choice of words employed in its statement.'^ § 5. The Various Forms of Pleadings in Equity.— Prior to the promulgation by the Supreme Court of the United States, of the rules of practice for the Federal courts, which became effective Feb. 1, 1913 (see appendix), there were seven distinct forms of pleadings in equity, to wit, the Bill (or Information), the Demurrer, the Plea, the (2) A modem learned author Mr. Hughes, in his work, The Law Ke-stated, reduces the entire law of procedure to three major maxims: 1. De non apparentibus et non existentibus eadem est ratio: What is not juridically presented cannot be judicially considered, decided, or adjudged. 2. Frustra probatur quod proiatum non relevat: It is vain to prove what is not alleged. 3. Verba fortius accipiuntur contra proferentum: Every presump- tion is against a composer or pleader. He shows very convincingly that these major m^axims and certain minor maxims cognate to them, are the foundation stones upon which rest the rules requiring certainty in pleading the description of the court, the parties, the wrong or injury, and the damage; that upon them rest the rules against redundant and immaterial matter, de- parture, duplicity, and variance; that they are the true limitations of the rules regarding waiver or aider by pleading over, or by verdict; that they contain the rationale of the rule that the demurrer opens the entire record, and that the demurrer for matter of substance can never be waived. To the third of these major maxims he traces the doctrines of the burden of proof, and res adjudicata, and to the trilogy he traces the maxim quod ab initio non valet intractu temporis non convalescit: that which is void in the beginning cannot be cured by waiver, ac- quiescence or lapse of time. As a correlative of these he propounds as the most instructive maxim of pleading, the following : quis, quid, coram, quo, quo jure petatur et a quo : recte compositus quisque libel- lus habet: Every statement correctly drawn must state with certainty to what court application is made, who complains, of whom he com- plains, what wrong he did, and the amount of damages done. These five requirements, says he, "are jurisdictional requirements in all courts. There may be more, but in no cases are there less. They may be called the 'irreducible minimum.' The general demurrer and all of its correlatives would be stages whereat objections could be made to a statement wherein any of the above essentials was omitted, and at all of these stages the general demurrer would search the entire record and attach to the first fault." PLEADINGS IN EQUITY CONTRASTED WITH COMMON LAW. 17 Ansicer, the Cross Bill, the Disclaimer, and the Replica- tion. These rules abolish demurrers, pleas and the replication, requiring the former defense by way of demurrer to be made by motion to dismiss or relied upon in the answer, and the former defense by way of plea to be made by way of answer.^ As this innovation in the rules has not affected the sub- stantial rights of parties defendant in presenting their defenses, an acquaintance with the functions of the de- murrer and plea is still requisite, and will be discussed later. Fundamental Difference Between the Pleadings at Law and in Equity, Arising Out of the Plaintiffs Eight to Discovery. — The ordinary defenses to an action at law took form either of a demurrer or of a plea, general or special. A mere denial not under oath was sufflcient to entitle the defendant to a trial and put the plaintiff to the proof of the allegations of his declaration. The general issue was often resorted to merely for the purpose of delay. No means existed enabling the plaintiff to compel the de- fendant to disclose before the trial the real nature of his defense. "I regret to say," said Lord Brougham (A. D. 1828), speaking of pleading at common law, "that the last century and a half has witnessed great and prejudicial alterations in the original plan which governed the system of pleading, so that the record, in the great majority of cases instead of exhibiting a plain view of what each party is prepared to prove, contains an endless multitude of words, from which, if the real matter of dispute can be gathered at all, it is only by guess work or by communications out of the record relating to things of which it gives not even a hint. Generally speaking it may be said that if the plaintiff tells us nothing in his declaration, the defendant in return tells us little in his pleas."* In chancery this was never so. The process issuing upon the filing of the bill, termed a "subpoena,''^ required the de- (3) Eule 29, Appendix. (4) Spence's Equitable Jurisdiction, p. 252. (5) Said to be a novelty devised by the subtlety of Chancellor Waltham, Bishop of Salisbury, "against the form of law, whereby no 2 18 PLEADINGS IN EQUITY CONTRASTED WITH COMMON LAW. fendant to make answer under oath to the several allega- tions of the bill ; a mere general denial was never sufficient, and the rule enforced by the Chancellors was that a de- fendant submitting to answer "must answer each and every allegation of the hill, and give all the discovery called for by the bill." It is extremely probable that but for this right which the plaintiff in chancery had, and has, to '^search the con- science" of the defendant by exacting of him a statement under oath in response to the allegations of the bill, the forms of the defenses in equity would have followed those at law. The common law "demurrer," "special plea," or "general issue," would have been all-sufficient to produce the necessary issue of law or fact (without which judicial determination of a controversy cannot be had), and the chancery practitioners being well versed in the complex- ities of common law pleading, need not have devised a sep- arate and distinct system of pleading in equity. This right of discovery by the examination of the parties on oath, in the pleadings, "was never introduced into pro- ceedings at common law — a circumstance that has had a very material influence as regards the establishment of the jurisdiction of the Court of Chancery."® To the bill in equity the defendant is required not only to admit or deny or confess and avoid every averment of the bill, but he must swear to it, and in addition to that, he must disclose under oath, or discover, as the expression is, any fact, matter or thing relevant to the controversy, that the plaintiff may see fit in his bill to interrogate him about. To the declaration at law a defendant, having no meri- torious defense, might by simply filing a plea of the gen- eral issue, postpone judgment against him until such time as trial could be obtained before a jury, which often meant, where the business of the court was congested, the lapse of several years.' plea could be determined unless by examination on oath of tbe par- ties according to the law civil and law of holy church in subversion of the conmion law." 3 Blackstone, Sec. 52. This is hardly ac- curate as evidences of the writ are found as early as 3Y Edw. III. (6) Spence's Equitable Jurisd., Vol. I, p. 228. (7) Note — In actions at law ex contractu it is now generally pro- vided by statute, or rule of court, that if the plaintiff support his PLEADINGS IN EQUITY CONTRASTED WITH COMMON LAW. 19 Until comparatively recent times, persons pecuniarily interested in a litigation were not competent to testify on their own behalf therein, even though they were parties to the action. A plaintiff suing on a promissory note was not permitted to testify that he saw the defendant sign it, and unless at the trial he could produce other witnesses to prove the defendant's signature, he was driven to the necessity either of putting the defendant himself on the stand, thereby making the defendant a witness for him (the plaintiff) and becoming bound by his testimony (which might be perjured), or suffering a non-suit. While the rules of evidence were the same in chancery as at law, the rules of pleading in chancery have always per- mitted a plaintiff to examine the defendant as a witness under oath (which he does when he compels him to an- swer) without being bound by his testimony. The right thus to compel a full disclosure by the defend- ant by requiring of him an answer, a form of pleading not known on the law side of the court, is called the right to discovery, which is defined to be "THE DISCLOSUEE OF FACTS RESTING IN THE KNOWLEDGE OF THE DE- FENDANT, OR THE PRODUCTION OF DEEDS, WRITINGS, OR THINGS IN HIS POSSESSION OR POWER, IN ORDER TO MAINTAIN THE RIGHT OR TITLE OF THE PARTY ASKING IT."» The application of the rule requiring the defendant in chancery to make answer and give discovery, even to the extent of supplying evidence whereby to prove the plain- tiff's case, gave the plaintiff in chancery a distinct ad- vantage over the plaintiff at law, for through the operation of this rule, the defendant in chancery defending by an- swer, became in a sense a witness for the plaintiff ; in this way the plaintiff secured, before the trial, the benefit of the declaration (or complaint in code states), by an affidavit as to the truth of its contents, the defendanlj must accompany his plea (or answer in code states), with an affidavit setting forth the grounds of his defense. This is in a sense the equivalent of discovery. But in actions ex delicto it is still possible for a defendant wholly to con- ceal the facts of his defense until the trial, by interposing the general issue. (8) Bouvier's Law Dictionary. 20 PLEADINGS IN EQUITY CONTRASTED WITH COMMON LAW. defendant's own testimony, and secured it in writing and under oath, and without being bound by it in the manner he would be if upon a trial in open court in an action at law he had called the defendant and had him sworn as a witness on his (the plaintiff's) behalf.' In other words, though the plaintiff in chancery, by his bill, call for evidence under oath from the defendant where- by to prove the plaintiff's case, he retains the right to con- tradict it by himself and other witnesses, though to do so should result in impeaching the credibility of the defendant for whose testimony he calls. Hence, the object in calling for an answer from the de- fendant in chancery, is to serve the purposes of plaintiff as well as to give the defendant his day in court. If the aver- ments of the bill truthfully state the facts, and those facts constitute a wrong remediable in equity, and the defendant in his answer does not commit perjury, a decree for the plaintiff, on the pleadings, without other proof must fol- low as matter of course. Thus the answer in equity was something more than a mere defense as was the plea at law ; it was that and also a deposition by the defendant wherein he was required to set forth under oath, not only all the facts of the contro- versy material to his defense, but also any material facts called for in the bill which tended to prove the plaintiff's case. There can hardly be doubt that in the earliest period of the chancery court, the answer was the only form of de- fense; that the demurrer and plea were innovations, and that their introduction grew out of necessity. The necessity arose out of the disgraceful and exorbitant system of taxing costs that one time prevailed in the chan- cery courts, and the inconvenience and embarrassment con- sequent to a disclosure by answer of private matters, which upon a final hearing it might turn out the plaintiff had no right to inquire into. For example, A. sues B., alleging a partnership between them of ten years' standing; that A. contributed the cap- ital as a silent partner, and B. contributed the experience (9) One who calls a witness and has him sworn, vouches his credi- bility and is not permitted to discredit him unless taken by sur- prise. PLEADINGS IN EQUITY CONTRASTED WITH COMMON LAW. 21 and conducted the business; that B. has always repre- sented that there were no profits gained in the business and has divided none with the plaintiff, but the plaintiff has discovered recently that large profits have been made each year and that he has been deprived of his share, and by his bill he prays for an accounting and discovery of all of the transactions of the business during the period of the al- leged partnership to the end that a decree be made requir- ing B. to pay him his share. B. contends that A. never was a partner ; that the money alleged to have been contributed as capital, was advanced by way of loan ; that the interest on it had been regularly paid ; tiiat he was under no obliga- tion to open his books and make disclosure of his private business affairs to any one. Under the rule of chancery pleading that he who sub- mits to answer must answer fully and give the discovery required, the defendant would have been required to make disclosure of his private business affiairs though it turned out afterwards, upon the taking of proofs, that the plain- tiff was not a partner and not entitled to an accounting, and therefore not entitled to the discovery. To obviate therefore the necessity of giving this discovery, the plea was introduced which permitted the defendant to deny under oath the fact of the existence of the partnership, thus rais- ing an issue at once which, if decided in his favor, would bar the plaintiff's right both to the relief and to the dis- covery prayed in the bill. By this method of defending, a single issue was tendered, but it was based upon statements made by the defendant under oath. This brief survey of the situation of the defendant in chancery, as contrasted with that of the defendant at law, makes obvious the reason for the introduction by the older pleaders of the plea in chancery; for if the defendant might, by advancing some single defense, which if true, would strike at the root of the plaintiff's case, debar him from his right of discovery, and terminate a controversy involving many issues of law and fact by a consideration and decision of one only, it was distinctly in the interest of economy of time and expense that he do so. The plea in chancery was devised as an excuse or protec- tion to the defendant from answering. In the arena of the Court of Chancery it was a shield interposed by the de- 22 PLEADINGS IN EQUITY CONTEASTBD WITH COMMON LAW. fendaat against the discovery sought by the plaintiff's bill. If the student will bear in mind this feature of the func- tion of the plea many of the perplexities generally met with when we come to the discussion of the question as to when a plea need be supported by an answer, and to the consid- eration of the orders that may be made by the court after hearing argument as to the legal sufftciency of the plea (e. g., "that the benefit of the plea shall be saved to the de- fendant at the hearing" or ''that the plea stand for an an- swer with liberty to except"), will disappear. § 6. Limitations Upon the Right of Discovery." — Dis- covery being but a means for the production of evidence, is limited by certain of the general rules of evidence, and so a defendant called upon by bill to make disclosure of the facts concerning the litigated matter, may invoke those rules of evidence intended for the protection of a witness, and refuse to make discovery in the following instances : 1. That the discovery may subject the defendant to pains and penalties, or to some forfeiture, or something in the nature of forfeiture. 2. That, in conscience, the defendant's right is equal to the plaintiff's. 3. That the discovery sought is immaterial to the relief prayed. 4. That the discovery would be a breach of professional confidence. 5. That the discovery relates only to the defendant's case. 6. That the discovery might be injurious to public interests. 1. It is a general rule of evidence that no one is bound to testify so as to subject himself to punishment, in whatever manner that punishment may arise, or whatever may be the nature of that punishment. This rule is not confined to cases in which the testimony must necessarily subject the defendant to pains and penalties, but it extends to cases where it may do so. If, therefore, a bill alleges any thing which, if confessed by the answer, may subject the defend- ant to a criminal prosecution, or to any particular penal- ties, the defendant may object to the discovery. (10) The matter of this section is extracted from Ch. 14, Daniell's Ch. PI. & Pr., and follows it in part, verbatim. PLEADINGS IN EQUITY CONTRASTED WITH COMMON LAW. 23 It is not necessary to the validity of an objection of this nature that the facts inquired after should have an imme- diate tendency to criminate the defendant ; he may equally object to answering the circumstances, though they have not such an immediate tendency. This was very clearly laid down by Lord Eldon in the words, "In no stage of the proceedings in this Court can a party be compelled to an- swer any question, accusing himself, or any one in a series of questions that has a tendency to that effect; the rule in these cases being that he is at liberty to protect himself against answering, not only the direct question whether he did what was illegal, but also every question fairly ap- pearing to be put with the view of drawing from him an answer containing nothing to affect him, except as it is one link in a chain, of proof that is to affect him."^^ This rule does not protect a defendant from discovering facts indicating moral turpitude on his part unless they amount to a punishable offense ; and of course it does not protect him from disclosing facts that would subject him to the penalties provided by his own covenants or agree- ments. Thus where a lessee covenanted not to dig loam, with a proviso that if he did he should pay to the lessor 20s. a cart load, and he afterwards dug great quantities; upon a bill being filed by the lessor for a discovery of the quantities, he would be obliged to answer. Upon the same principle, where servants of a company bind themselves to pay a specified sum, in case of a breach of the regulations of their service, they cannot protect themselves from answering, as to breaches, because they would be subject to a penalty.^^ Upon the principle that the Court will not allow a man to contradict what he has, either by his actions or express words asserted, it has been held that a person who repre- sents himself to be a broker and is employed in that char- acter, cannot afterwards protect himself from discovery on the ground that he was not licensed to act as broker, and that, by answering, he may expose himself to penalties. Trustees who are liable to a criminal prosecution for the fraudulent misapplication of moneys intrusted to them, (11) Paxton vs. Douglas, (19 Ves. 227), cited Daniell's Ch. PI. & Pr., Vol. 1, Ch. 14. (12) Daniell's Ch. PI. & Pr., Vol. 1, Ch. 14. 24 PLEADINGS IN EQUITY CONTRASTED WITH COMMON LAW. are, nevertheless, bound to give discovery, in answer to a bill in equity. So, also, a person infringing a trade-mark, though liable to prosecution must give discovery in equity. If a party be liable to a penalty or forfeiture, provided he is sued within a limited time, and the suit is not commenced till after the limitation has expired, the defendant will be bound to answer fully, even though, by so doing, he may expose his character and conduct to reflection, and it seems, that the plaintiff is entitled to an answer, if the liability ceases after the defense has been put in, and before it is heard, even though there was a liability at the time of put- ting in his defense. A defendant cannot refuse to give discovery on the ground that it will expose him to penalties in a foreign country.^* The principle that a defendant is not bound to give dis- covery which will expose him to a forfeiture, applies equal- ly, whether the forfeiture is enforcable in equity or at law. A defendant, in order to protect himself from answering, on the ground that the discovery of the matters inquired after would expose, or tend to expose, him to penalties, must state upon oath his belief that such would be the case ; a submission of the question to the Court is not sufScient. 2. If a defendant has, in conscience, a right equal to that claimed by a person filing a bill against him, though not clothed with a perfect legal title, a Court of Equity will not compel him to make any discovery which may hazard his title. The most obvious case is that of a purchaser for a valuable consideration, without notice of the plaintiff's claim. The right to relief is based upon the strength of the plaintiff's title and not upon the weakness of the de- fendant's. The equities being equal the legal title prevails. 3. A defendant is not compellable to discover any thing immaterial to the relief prayed by the bill. Upon this ground, upon a bill filed by a mortgagor against a mort- gagee to redeem, and seeking a discovery whether the mort- gagee was a trustee, a demurrer to the discovery was al- lowed ; for, as there was no trust declared upon the mort- gage deed, it was immaterial to the plaintiff whether there was any trust reposed in the defendant or not. So where (13) Daniell's Ch. PI. & Pr., Vol. I, Chap. 14. PLEADINGS IN EQUITY CONTEASTED WITH COMMON LAW. 25 a bill was filed by the lord of a borough, praying a discov- ery whether a person applying to be admitted a tenant was a trustee or not, a demurrer was allowed. 4. We next consider those objections to discovery which are the consequence of the privilege resulting from pro- fessional confidence. The privilege conferred by this spe- cies of confidence applies, though in a different degree, to both the adviser and client. It extends to all confidential communications which have passed in the progress of the cause itself, and with reference to it before it was instituted, and also to letters written by a defendant to his solicitor, after a dispute be- tween him and the plaintiff had arisen, with the view to taking the opinion of counsel upon the matter in question and which afterwards became the subject of the suit. The rule has been adopted out of regard to the interests of justice, which cannot be upholden ; and to the adminis- tration of justice, which cannot go on without the aid of men skilled in jurisprudence, in the practice of the courts, and in those matters affecting rights and obligations which form the subject of all judicial proceedings. If the privi- lege did not exist at all, every one would be thrown upon his own legal resources, deprived of all professional assist- ance, a man would not venture to consult any skilled per- son or would only dare to tell his counsellor half his case. 5. It is necessary that the bill should show that a cer- tain degree of privity exists between the plaintiff and de- fendant, in order to entitle him to maintain his suit, par- amount titles, raise question to be tried at law, and it has been stated that the want of such privity will afford a ground for demurrer to the relief prayed. It may some- times, however, happen that a plaintiff may, by his bill, show that, supposing the facts he states are true, he has a right to the relief he prays, and yet may not show such a privity as will entitle him to the discovery which he asks for, for it is a rule of the Court that where the title of the defendant is not in privity, but inconsistent with the title made by the plaintiff, the defendant is not bound to dis- cover the evidence of the title under which he claims. Thus, where a bill was filed by a person claiming to be lord of a manor, against another person also claiming to be lord of the same manor, and praying, amongst other things, a 26 PLEADINGS IN EQUITY CONTRASTED WITH COMMON LAW. discovery how the defendant derived title to the manor, and the defendant demurred only to the discovery, the de- murrer was allowed ; and so, where a bill was filed by one claiming to be the heir ex parte materna, against another claiming to be heir, ex parte paterna, and the bill sought a discovery in what manner the claim ex parte paterna was made out and the particulars of the pedigree, a demurrer to that discovery was allowed. The principle upon which these cases proceed is: that the right of a plaintiff in equity to the benefit of a defend- ant's oath, is limited to a discovery of such material facts as relate to the plaintiff's case, and does not extend to a discovery of the manner in which, or of the evidence by means of which, the defendant's case is to be established. Under this rule the bill should not be so framed as to constitute what has been termed a "fishing bill." That is to say, it should not attempt to cover everything yet not refer to any one thing specifically and with certainty. An example of such a bill, framed only for the purpose of mak- ing an inquisitorial investigation of defendant's affairs, is McCartney v. Fletcher, 10 App. D. C. 572, where an ad- ministratrix (daughter of decedent by his first wife) filed a bill against decedent's widow (his second wife), seeking discovery and accounting from her of the personal estate that was supposed to have belonged to her late husband at the time of his death, and alleged to have been concealed and secreted from the administratrix of the deceased, by said widow. The inquiry, after the manner of a drag-net, covered all transactions of the husband during his married life, a period of over thirty years, the theory being that the wife was agent of her husband and therefore liable to ac- count as agent for all moneys and property that came into her hands during said period. The court held that the alle- gations and charges in the bill were too vague, general and indefinite, and extended to matters not properly the sub- ject of enforced discovery. That the facts of which dis- closure was sought must be of a certain and specific char- acter, and that the right of a complainant in equity to the benefit of defendant's oath is limited to such material facts as relate to the plaintiff's case. It was said that plaintiff must state in respect to what particular facts he desires discovery, and show how he is interested in those facts, and PLEADINGS IN EQUITY CONTRASTED WITH COMMON LAW. 27 their materiality and pertinency to the case at issue. The plaintiff is only entitled to discovery of what appertains to his own title and has no right to pry into the title of de- fendant." This rule will not extend to defeat the plaintiff of his right to discovery from the defendant, where he makes a case in his bill, which, if admitted, would disprove the truth of or otherwise invalidate the defense made to the bill ; in such cases, he is entitled to discovery from the de- fendant of all which may enable him to impeach the de- fendant's case; for the plaintiff does not rest on a mere negative of the defendant's case, but insists upon some positive ground entitling him to the assistance of the Court, such as fraud, or other circumstances of equitable cogni- zance, to a discovery of which no objection of this kind can be raised. If a plaintiff is entitled to a discovery of deeds or other documents for the purpose of establishing his own case, his right to such discovery will not be affected by the circum- stances that the same documents are evidence of the de- fendant's case also, and if a defendant, bound to keep dis- tinct accounts for another party, improperly mixes them with his own, so that they cannot be separated, he must discover the whole. 6. Communications which come within a certain class of official correspondence, are privileged, upon the ground that they could not be made the subject of discovery in a court of justice without injury to the public interest. In Smith V. The East India Company, 1 Phill. 50, Lord Lynd- hurst had to consider whether correspondence between the Court of Directors of the East India Company and the Board of Control came within the limits of this privilege, and he decided that it could not be subject to be communi- cated, without infringing the policy of the act of Parlia- ment and without injury to the public interests. The above are the principal grounds upon which a de- fendant may demur to the discovery sought by a bill, al- though the plaintiff may be entitled to the relief prayed, in case he could establish his right to it by other means (14) See Story Eq. PL, sees. 320-325; Window Glass Mach. Co. v. Brookville Glass etc. Co., 229' Ted. 837. 28 PLEADINGS IN EQUITY CONTEASTED WITH COMMON LAW. than discovery from the defendant on those points as to which the defendant is entitled to defend himself from making discovery. In all other cases, a plaintiff, if enti- tled to relief, is entitled to call upon the defendant to make a full discovery of all matters upon which his title to relief is founded. CHAPTEE III. REQUISITES OF THE BILL. § 7. The Bill. — Suits in equity are commenced" either by filing a Bill of Complaint, or an Information in the na- ture of a bill of Gompla int. The purpose of both is the same, viz : to state the facts constituting the plaintiff's grievance and inform the court what relief the plaintiff desires, and the only difference is that the hill is filed by a subject or cit- izen to redress some private gTievance, while the informa- tion is filed on behalf of the State, through its attorney gen- eral or other proper officer, to redress some injury to the public; for the establishment or regulation of a public charity; to enjoin a public nuisance, and sometimes on behalf of idiots and lunatics considering them as under the peculiar protection of the state." Except in its form and style, the information follows the nature of the bill in every respect.^' The bill filed by the ordinary suitor takes the form of a petition to the judicial branch of government — the subject petitions a sovereign power — when filed by the state, it is more decorous that it take the form of an information — the state informs the judiciary — the executive and judicial branches of government under our institutions being co- equals in the distribution of sovereign powers, the one does not petition the other, but causes it to be informed. The bill has a two-fold function. It is first a petition for (15) Under statutes in some jurisdictions a suit or action is deemed to be commenced, upon the mere filing of the bill or declara- tion, in others upon the issuance of process, and in still others not until the process has been served. Encyc. PI. & Pr., Vol. 1, pp. 119, et seq. Story Eq. PI. Sec. 7. Farmers' L. & T. Co. v. Lake, 117 U. S. 51. Waldo V. Wilson, 231 Fed. 654. Huysman vs. Newspaper Co., 12 App. D. C. 586. (16) Encyc. PI. & Pr., Vol. 10, p. 858. (17) People V. Stratton 25 Calif. 242. 29 30 EEQUISITES OF THE BILL. the redress of the plaintiff's grievances, and in that respect a mere pleading, similar to the declaration at law; and, secondly, it is an examination of the defendant to obtain discovery of facts on which to base a decree. Anciently the bill in equity consisted of nine parts, to wit: The Address, The Introduction, The Premises or Stating Part, The Confederating Part," The Charging Part,^' The Jurisdiction Clause,^" The Interrogating Part, The Prayer for Belief, and The Prayer for Process. The new rules having abolished the confederating part, the charging part and the jurisdictional clause,^^ leave the modern bill with six parts only, one of which, the interro- gating part is not always necessary. The Address or caption of the bill is that part wherein appears the designation of the court in which the suit is filed. All that is essential is that sufficient appear in the caption or titling of the suit to indicate in what court it is brought. The Introduction states the name, residence and citi- zenship of the parties, plaintiff and defendant, and the character in which they sue and are sued, and the disabili- ties (e. g., infancy), if any, of any of the parties. If the jurisdiction of the court depends upon the existence of (18) This is a general charge of confederacy or combination be- tween the defendant "and divers other persons as yet to the plaintifi unknown but whose names when discovered he prays may be inserted herein as defendants and parties to the suit * * * in order to oppress and injure, do absolutely refuse, etc." (19) The purpose of this clause was to anticipate and offset mat- ters of excuse or justification, technically called "pretenses," which it was expected the defendant would set up. It was in the nature of a special replication. Tinder former equity rules iit was optional with the complainant whether he would include this portion of the bill in the stating part or dispense with it altogether. In this clause were contained such further facts and allegations which could not be conveniently contained in the stating part, but which are material, either to induce admissions from the defendant or to obtain col- lateral relief or to anticipate defenses (Lube Eq. PI., Sec. 238). (20) This averment that the acts complained of are contrary to equity and that the plaintifi has no remedy or an incomplete rem- edy without the assistance of the court of equity, is superfluous. If the facts stated in the bill call for the exercise of equitable powers the court will act, even though the clause is omitted. And if not, the bill will be dismissed, notwithstanding such averment. (21) Eule 25, Appendix. REQUISITES OF THE BILL. 31 some particular fact, e. g., diverse citizenship, it should be alleged here. The Premises or Stating Part states the plaintiff's case. Here should be set forth clearly, concisely and distinctly all facts upon which he will rely as entitling him to relief prayed for. It is the plaintiff's narrative of his grievance, and must state a case remediable under some head of equity jurisdiction, and it has been held that relief will not be granted in respect to matter disclosed by the answer, to which the plaintiff might have been entitled, but which he failed to state in his bill,^* and that the admissions con- tained in an answer cannot be made the foundation for re- lief, unless the matter of the admissions be substantially set forth in the bill.^' In equity a party cannot succeed upon a case proved, but not alleged, any more than upon a case alleged but not proved.^* Here the analogy of the rule of the law courts forbid- ding a variance in allegata et probata is very strong, it being held that the plaintiff even under a prayer for gen- eral relief, is not entitled to a decree inconsistent with the case made by the bill ; that if he cannot support the bill upon the grounds assumed in it, his suit must be dismissed, though he might have suported it upon other grounds.^^ In such a situation the proper course for the plaintiff to pursue, would be to move for leave to amend,*® and it has been held not to be error to permit an amendment of the bill so as to conform to the relief prayed, even after the cause had been brought to a hearing.*' The Interrogating part of the bill and the Prayers for Relief and for Process are better illustrated than de- scribed, and appear in the bill drawn for that purpose in succeeding pages. § 8. Contents oi the Bill. — Federal Equity Rule twenty- five, provides as follows: "Hereafter it shall be sufficient (22) Lamon vs. McKee, 18 D. C. 446. (23) Jackson vs. Ashton, 11 Pet. 229. (24) Foster vs. Goddard, 1 Black. U. S. 506. Grosholz vs. Newman, 21 Wall., 481. (25) Connolly vs. Belt, 5 Cranch. C. 0. 405. (26) Daniell's Ch. PI. & Pr. p. 383. (27) Neale vs. Neale, 9 "Wallace U. S., p. 1. 32 REQUISITES OF THE BILL. that a hill m equity sJioM contain, in addition to the usual caption^^ First, the full name, when known, of each plain- tiff and defendant, and the citizenship am,d residence of each party. If any party he under disability, that fact shall be stated}^ Second, a short and plain statement of the grounds upon which the court's jurisdiction depends. Third, a short and simple statement of the ultimate facts upon which the plaintiff asks relief, omitting any mere statement of evidence.^" Fourth, if there are persons other than those named as defendants, who appear to he proper parties, the hill should state why they are not made parties — as that they are not within the jurisdiction of the court, or cannot he made parties without ousting the jurisdiction. Fifth, a statement of and prayer for any special relief pending the suit or on final hearing, which may be stated and sought in alternative forms."^^ If special relief pending the suit be desired, the bill should be verified by the oath of the plaintiff, or some one (28) The "caption" is the heading of the bill wherein is set forth the title of the court and the names of the parties. See form of bill, infra, p. 32. (29) See Appendix, Eule YO. The disabilities at common law were, infancy, lunacy and cover- ture. An infant sues by next friend, and defends by guardian ad litem; a lunatic sues by next friend, or by committee or guardian, and may be sued personally if no adjudication of the insanity has been had and no committee or guardian has been appointed for him. Coverture is not now generally a disability. The so-called "Married Womens' Acts" permitting them to sue and be sued as if they were femes sole. (30) This is the "premises" or "stating" part of the bill. See form of bill, infra, p. 32. (31) A bill may be framed "with a double aspect," or "in the al- ternative," without violating the rule against multifariousness. The term "alternative" as used in Eule 25, has been defined to mean "mutually exclusive," and a bill praying the cancellation of a railroad lease as obnoxious to the Sherman Anti-Trust Laws, and also praying the preservation of the status of the stock of the lessor company, which status depended on the lease sought to be annulled, was held not defective though the prayers were inconsistent. Boyd vs. N. T. & H. E. Co., 220 Fed. 174. REQUISITES OF THE BILL. 33 having knowledge of the facts upon which such relief is asked.'^ The following is a form of a modern bill in equity : IN THE SUPREME COURT OF THE DISTRICT OF COLUMBIA.*' Holding an Equity Court. Equity No. 47. JOHN RAND, PLAINTIFF, The, address VS. or caption ALBERT SIMPSON, WILLIAM ROB- ERTSON, JAMES WILSON, RICHARD JOHNSON, DEFENDANTS. Bill of Complaint. The plaintiff respectfully shows to the court as follows : 1. That he is a citizen of the United Introduction States and resident of the District of Co- lumbia, and brings this suit in his own right. That the defendants are also citizens of the United States and residents of the District of Columbia, and are used as hereinafter shown. (32) Applications for injunctions, restraining orders writs of ne exeat, sequestration, rules for contempt or for the appointment of a receiver, are made whilst the suit is pending and before a final hearing, and are, of course, not grantable unless the facts upon which the applicant bases his claim to the extraordinary interposition of the court in his behalf be supported by an oath. (33) The Supreme Court of the District of Columbia is a federal court in the sense that it is created by act of Congress, but unlike other federal courts its jurisdiction does not depend upon diversity of citizenship, the presence of a federal question, or any of the other matters necessary to be alleged in a bill of complaint in order to show federal jurisdiction. For jurisdictional allegations in suits in the federal courts, see Mr. Simpkins' "A Federal Equity Suit." 3 34 REQUISITES OF THE BILIi. Premises or Stating Part {par. 2-6) See note below I 34 2. That on the 10th day of January, 1914, the defendants, Albert Simpson, William Eobertson and James Wilson, being then and now seized as joint tenants in fee of a certain parcel of land known as lot num- bered one (1) in square numbered four hun- dred (400) in the city of Washington, Dis- trict of Columbia, entered into contract with the plaintiff, whereby they agreed to sell and convey the said lot to the plEjintiffi, free of all liens and incumbrances, for the sum of ten thousand (|10,000) ; and to convey to the plaintiff on or before the 20th day of January, 1914, a good, unincumbered and marketable title to said lot; and the plain- tiff agreed to purchase said lot upon the terms aforesaid and to pay the purchase money in cash upon the consummation of the sale, and did then, at the making of the said agreement, pay to said defendants as a deposit to be credited on account of said purchase money, the sum of five hundred dollars ($500) . That at the time of the mak- ing of said agreement and the payment of said five hundred dollars, no paper or writ- ing embodying the terms of said agreement was executed, but it was agreed between them that a formal written contract em- bodying the terms hereinabove set forth should be prepared by Simon Quirk, the at- torney representing the said defendants, and when thus prepared, executed by the parties to said agreement. That on the next day a paper prepared by said attorney and (34) The numbering of the paragraphs in the "stating part" of the bill is largely a matter of good taste in arrangement. It would be permissible to include all of the matter alleged by paragraphs 2 to 6 under paragraph 2, without violating Rule 25. As the answer is also paragraphed by numbers corresponding to those in the bill, it promotes clarity in the presentation of the issue if distinct and separate facts constituting the grievance are set forth in distinct and numbered paragraphs. EBQTJISITBS OF THE BILEi. 35 signed by the said defendants purporting to be a contract embodying the terms of the contract hereinabove set forth and which the plaintiff, relying upon the integi'ity and honesty of the said defendants and without any careful examination thereof, believed to be such contract, was exhibited to the plain- tiff for signature and was signed by the plaintiff and delivered to said attorney. That the paper so signed by him is in the words and figures following, to wit : "This agreement made this 10th day of January, 1914, by and between Albert Simp- son, William Robertson and James Wilson, parties of the first part, and John Eand, party of the second pai't. "Witnesseth, that in consideration of the sum of ten thousand dollars ($10,000), five hundred dollars (f500) of which has been paid and the balance to be paid upon the consummation of the sale, the parties of the first part have this day sold to the party of the second part, lot numbered one (1) in square numbered four hundred ( 400 ) in the city of Washington, D. C, and the said par- ties of the first part covenant that they will convey their title to said lot to said party of the second part, on or before the 20th day of January, 1914, and that they have done no act to incumber the same ; and the party of the second part covenants on his part to accept said conveyance and pay the pur- chase money in cash as above provided. "Witness the signatures and seals of the respective parties on the day and year first hereinbefore written. ALBERT SIMPSON. (SEAL) WILLIAM ROBERTSON. (SEAL) JAMES WILSON. (SEAL) JOHN RAND. (SEAL)" 36 EEQTJISrrpS of the BILIi. Plaintiff has recently discovered, upon a careful reading of said contract, that either through the mistake or inadvertence of the attorney who prepared said contract, or through the deliberate fraud of the said de- fendants, there has been omitted from said contract the provisions of the oral agree- ment securing to the complainant a good and marketable title, free of all liens and incumbrances, and he has also discovered that said property is heavily incumbered by tax liens and has been in fact sold for taxes, and that the holder of the tax lien certificate wUl be entitled to a deed for the property unless it is redeemed on or before the expira- tion of the next month, as will more fully appear in the allegations of the following paragraph of this bill. 3. That on the 17th day of January, 1914, plaintiff discovered by inquiry at the office of the Collector of Taxes, that in June, 1912, previous to the acquisition of title to said lot by said defendants, there had been levied and assessed against said lot certain taxes, general and special, amounting in the aggregate to the sum of |800, and that said sum being in arrears and unpaid, the said lot was, by the Collector of Taxes, in the month of June aforesaid, exposed for sale at public auction to satisfy said taxes and was purchased by the defendant, Eichard Johnson, for $850, being the amount of said arrears of taxes with interest, penalties and costs, and that thereupon there was issued by the said Collector of Taxes to the said Eichard Johnson a certificate in the form prescribed by law, entitling him to a lien on said lot for the amount expended by him together with interest at the rate of 12 per cent, per annum, and further entitling him to a deed for said lot unless within two years from the date of said certificate the owner REQUISITES OF THE BILL. 37 or owners of said lot redeem the same by the payment to the holder of said certificate of the sum expended by him with interest at 12 per cent, per annum. 4. That immediately upon the discovery of the existence of the lien for taxes set forth in the next preceding paragraph, plaintiff called upon the defendants Simpson, Eob- ertson and Wilson, and demanded that said lien be discharged ; that the tax lien certifi- cate be obtained from the defendant John- son and cancelled, and that the paper writ- ing set forth in paragraph two hereof be re- formed and corrected by inserting therein the provision for a good and marketable title free of all liens and incumbrances, so that said writing would express the true agree- ment entered into between the parties there- to, the plaintiff at the same time offer- ing to advance an amount sufficient to dis- charge said lien if permitted to deduct the same from the balance of the purchase money; but the defendants Simpson, Kob- ertson and Wilson refused and still do insist that the terms of the paper writing be car- ried out according to the letter thereof, and that plaintiff accept a conveyance and pay the entire balance of the purchase money and take title to said lot subject to said tax lien. 5. Plaintiff further avers that immediate- ly therafter he called upon the defendant, Eichard Johnson, and informed him of the facts hereinabove set forth, and demanded that he be permitted to redeem said lot from said tax sale, and tendered himself ready and willing to pay to the said Eichard John- son the sum of |850, with interest thereon at twelve per cent, per annum, and demand- ed the surrender and cancellation of said tax sale certificate, but the said Johnson re- fused to comply with these demands, assing- 38 EBQUISITES OF THE BILL.. ing as a reason that the plaintiff had no right to redeem from a tax sale property to which he had no title and asserting his in- tention of standing upon his right to a deed at the expiration of the two years, unless before that time the owners should redeem. 6. Plaintiff further avers that on the 20th day of January, 1914, he tendered to the de- fendants Simpson, Eobertson and WUson, |9,500, the balance of the purchase money and demanded a deed conveying said lot to him. with a good and marketable title free of all liens and incumbrances, which tender and demand was refused. And the plaintiff now tenders himself ready and willing to pay the balance of said purchase money un- der the order of the court whenever a mar- ketable and unincumbered title to said lot is made to him. Interrogat- 1. To the end, therefore, that the said de- ing Part fendants may, if they can, show why the plaintiff should not have the relief herein prayed, and may, upon oath, true, direct and perfect answer make to such of the several interrogatories hereinafter numbered and set forth, as by the note thereunder written they are respectively required to answer, the plaintiff prays : Prayer for 1. That the writ of subpcena issue, di- Process reeled to the defendants, Albert Simpson, William Eobertson, James Wilson and Richard Johnson, commandiag them and each of them to appear and make answer hereto. Prayers for 2. That a decree may be passed herein or- Specific dering and directing that said contract set Relief (2-4). forth ia paragraph two of this bill, stand corrected and reformed by inclusion therein of the clause securing to the defendant a good and marketable title to said lot free of all liens and incumbrances, and that said defendants Simpson, Eobertson and Wilson REQUISITES OF THE BILL. 39 be commanded and enjoined specifically to perform said contract as thus reformed.** 3. That said Simpson, Robertson and Wilson be commanded and enjoined to dis- charge said lien for taxes held by the de- fendant and redeem said lot from the opera- tion of said tax sale, or that, in lieu thereof, plaintiff be permitted to redeem the same and deduct the amount necessary for re- demption from the balance of the purchase money, and in the latter event that an order or decree be made commanding and enjoin- ing the defendant Johnson to surrender said tax sale certificate upon the payment to him of the amount of his said lien, with interest and lawful charges, which amount the plain- tiff now tenders himself ready and willing to pay. 5. And for such other and further relief Prayer for as the nature of the case may require and to General Re- the court may seem equitable and proper. lief. JOHN RAND, Plaintiff. WALTER SPENCER, Signature of Attorney for Plaintiff. Counsel. District of Columbia, ss : Verification. John Rand, being duly sworn, deposes and " says that he has read the foregoing bill by him subscribed and' knows the contents thereof; that the facts therein stated of his personal knowledge are true and those stated (35) Whether a bill will lie to reform a contract and for specific performance thereof as reformed is a doubtful question, and the final decree made in this supposed case {infra, p. ?) must not be ac- cepted as an authoritative solution of the questions raised. The principles involved are the parol evidence rule and the statute of frauds, and the leading cases are Woolam v. Heam, 2 Lead. Gas. Eq., 670; Townshend v. Stangroom, 6 Ves. 328; Gillespie v. Moon, 2 Johns. Ch. 585; and Glass v. Hulbert, 102 Mass. 24. The ques- tions are discussed in Bispham's Principles of Equity, sections 258, 381, 382, and 4Y0. 40 REQUISITES OF THE BILL,. on information and belief he believes to be true. JOHN EAND. Subscribed and sworn to before the un- dersigned notary public his 22d day of January, 1914. JOHN DOE, Notary Public. Interroga- 1. State whether or not it is a fact that tories. on the 10th day of January, 1914, an oral agreement was entered into between plain- tiff and the defendants, Simpson, Kobertson and Wilson, for the sale by them to the plaintiff of lot one ( 1 ) , square four hundred (400), for ten thousand dollars ($10,000), free of all liens and incumbrances? 2. State whether or not plaintiff made a deposit of five hundred dollars (|500) on account of the purchase price of said lot? 3. State whether or not the attorney for the defendants, Simpson, Robertson and Wilson, prepared the written contract set forth in paragrph two of the bill? 4. State whether or not it is a fact that said contract as written does not embody the terms of the oral contract entered into be- tween the same parties? 5. State whether or not the plaintiff has paid $500 on account of the purchase money for said lot, tendered the balance, $9,500, and demanded a deed for said lot conveying the title to him free of all liens and incum- brances and whether or not said tender and demand were refused? 6. State whether or not the plaintiff of- fered to redeem said lot and whether or not said offer was refused? Note. — The defendants, Albert Simpson, William Eobertson and James Wilson, are each required to answer the interrogatories numbered respectively 1, 2, 3, 4, and 5. The REQUISITES OF THE BILL. 41 defendant Eichard Johnson is required to answer interrogatory numbered 6. § 9. Certainty. — The bill must contain a sufficiently cer- tain, though general, statement of the ultimate facts upon which the complainant rests his claim for relief ; but gen- eral certainty is enough; the particularity of an indict- ment is by no means required.^^ In Swift & Co. V. United States, 196 U. S. 375, a pro- ceeding under the Sherman Anti-trust Act, Mr. Justice Holmes, delivering the unanimous opinion of the court, said: "Whatever may be thought concerning the proper construction of the statute (the anti-trust act), a bill in eqidty is not to be read and construed as an indictment would have been read and construed a hundred years ago, but it is to be taken to mean what it fairly conveys to a dispassionate reader by a fairly exact use of English speech." The trend of modern opinion on the subject of pleading is against the narrow views of the old pleaders of the time of Coke and Saunders, and in favor of a rational liberalism. This is indicated not only by the expressed views of leading members of the bar, by modern statutes and rules of court, but by judicial decision as well. In a case not yet reported^'' it was said that the old rule, "Every intendment is against the pleader and therefore the plead- ings must be strictly construed against him" no longer governs the courts at this day, "but on the contrary the courts now recognize the fact that it is of more importance to determine issues than pleadings, provided, of course, the facts alleged in the complaint entitle the plaintiff to the relief sought. The new equity rules, which in effect, are similar to the Code procedure prevailing in most of the states, are clearly intended to simplify pleadings and do away with many of the technicalities theretofore required," and further "that if the allegations in the complaint are not specific enough to enable them to prepare their de- fense" defendants' remedy is by motion for further par- (36) St. Louis vs. Knapp, 104 TJ. S. 658. Ambler vs. Ohoteau, 107 U. S. 586. (37) Trieber, J., in U. S. v. IJnited Shoe Machinery Co. (Dist. Court for Eastern Dist. of Mo.), opinion, June 7, 1916. 42 REQUISITES OF THE BILL. ticulars under rule 20^* and not by demurrer or motion to dismiss. Pleading Documents. — Where the plaintiff relies upon written instruments as part of his case, he may either plead them according to their legal effect, describing them sufficiently for identification, or he may file the originals or copies thereof as exhibits to his bill. It is not proper to set them out in haec verba in the bill.*^ Where instruments form a part of the recitals of an equity suit, or are mere matters of inducement, it is suffi- cient to describe them substantially in the bill, but when the case turns upon the construction to be given an instru- ment, the original or a copy should be filed as an exhibit.*" A mere reference in the bill to the place of record of a deed with the liber and folio where recorded, is not suffi- cient to make such deeds exhibits in the cause, and in a case where this occurred and the interpretation of the deed was essential to the determination of the cause the bill was held demurrable.*^ Allegations on Information and Belief. The rules requiring certainty in pleading, do not pro- hibit the making of an allegation on information. The plaintiff is not prohibited from alleging a fact essential to his right to relief, because he has no personal knowl- edge of it, he may be able to prove it by other evidence than his own testimony. But in framing an allegation based only on information, the belief of the plaintiff in the truth of the fact alleged, must also be averred. The form of the allegation in such a case is generally as follows: "And plaintiff says that he is informed, and believes^ and so be- lieving avers" that the deed hereinbefore described, and relied upon by the defendants, was never in fact actually delivered by the grantor therein, etc. An allegation made only on information and not accompanied by an averment of belief in its truth, is insufficient.*'' (38) See section following. (39) Van Zile Equity PI. & Pr., Sec. 35. (40) Whitaker vs. Middle States Co., 7 App. D. C. 203. (41) Cammack vs. Carpenter, 3 App. D. C, 219. (42) Sandifer vs. Sandifer, 229 111. 523. REQUISITES OF THE BILL. 43 § 10. Further Particulars. — When the allegations of any pleading in equity are so vague or uncertain as not sufficiently to apprise the opposite party of the grounds of the claim or defense, the court has the power to require the oifending party to set forth his claim or defense more specifically. Eule 20 provides as follows : "A further and better statement of the nature of the claim or defense, or further and better particulars of any matter stated in any pleading, may in any case be ordered, upon such terms, as to costs and otherwise, as may be just." In addition to the gi*anting or overruling of the motion the court may, in its discretion, impose the costs of the suit accrued up to the time of the order upon either of the parties, or require them to be borne by both. If the grounds of the motion be frivolous, the costs ought to be imposed upon the moving party. If the violation of the rules of certainty, definiteness and particularity be fla- grant, the party so pleading should have costs imposed upon him. § 11. Tender. — One of the maxims in equity is, "He who seeks equity must do equity-" therefore, whenever the case made in the bill shows that performance of some act or payment of money by the plaintiff, is an essential pre- requisite to the relief prayed by him, he must tender him- self ready and willing to perform, or pay, as the case may be, and his failure to do so i-enders the bill demurrable. Thus, a purchaser seeking specific performance must tender the purchase money, a plaintiff seeking relief against an excessive tax levy must tender what he admits to be due.*^ § 12. Familiar Vices of Pleading.— Care must be exer- cised by the pleader tO' avoid certain well-known vices of pleading, common not only to the bill, but to other plead- ings in equity. These are Conclusions of Law, Multifari- ousness, Scandal and Impertinence. Illustkations of the First of these Vices. — Pleading legal conclusions instead of the facts themselves, — are of- ten found in cases where fraud is alleged. Courts refrain from defining fraud, lest they be confronted by their own (43) Johnson vs. Eoberts, 102 111. 655. 44 REQUISITES OF THE BILL. definition, and it be found too broad or too narrow to cover cases that may subsequently arise. Each case therefore must depend upon its own facts and circumstances, and relief applied or denied as the court's sense of justice, in the light of well-known principles, dictates. This being so, it is obvious that a pleading merely alleging that a release or other instrument "was obtained by fraud" without al- leging the facts and circumstances under which it was ob- tained is insufficient. It is no more than a statement by the pleader of his own opinion or conclusion as to the legal effect of certain facts and circumstances known to him, but not disclosed on the record, — a mere conclusion of law. Good pleading requires the facts to be so clearly stated that the court may draw the inference, and a failure to do so renders the pleading objectionable.** The rule forbidding this sort of pleading is based upon another reason, viz : the defendant is entitled to have the charges made against him stated with such particularity as to enable him to prepare to meet them ; generalities will not do. Ambiguity and argumentativeness are as object- ionable in equity as at common law.*^ But it is not necessary in charging fraud or anything else that all the evidence which may be adduced to prove the charge should be recited. It is sufficient if the main facts or incidents which constitute the charge be fairly stated so as to apprise the defendant of what he has to meet.*® The allegation that plaintiffs are without adequate remedy at law,*' that a judgment is "an irregular and void judgment,"** that certain investments were "taxable capital" without describing their character,*^ are all alle- gations of mere conclusions of law. (44) Ambler vs. Choteau, 107 TJ. S. 586. (45) Alabama vs. Burr, 115 TT. S. 413. Central Nat. Bank vs. Conn. Mut., 104 F. S. 54. Palmer vs. Mure, 2 Dick. 489. Munday vs. Knight, 3 Hare, 49Y. Johnson vs. Curteis, 3 Bro. Ch., 26Y. New England Bank vs. Lewis, 8 Pick., 113, 119. Chambers vs. Chalmers, 4 Gill & J. (Md.), 420. (46) IJ. S. vs. Am. Bell Tel. Co., 128 U. S. 315. (47) Shelton vs. Piatt, 139 U. S. 591. (48) Eitchie vs. McMuUen, 159 U. S. 235. (49) First Nat. Bank vs. Chehalis Co., 166 IT. S., 440. REQUISITES OF THE BII^L. 45 What may be regarded as an exception to the general rule forbidding the allegation of mere conclusions of law is found in the rule with respect to pleading deeds, muni- ments of title and other like documents. By virtue of one of the general orders in Chancery, adopted at an early date^" it was provided that such documents should not be set out in hcec verba, but that their legal effect should be pleaded. This rule of course was held not to apply in any case where the construction or interpretation of the in- strument was in doubt, so that it might become the issue in the cause. Thus, if a suit were filed for the construc- tion of a will or the interpretation of trusts created by a deed or will, or the interpretation of a contract, which was ambiguous, it would be not only proper but necessary to set forth the terms of the instrument in hcec verba. § 13. Multif ariousness. — Multifariousness is the im- proper joinder of causes of action, or the improper joinder of parties. Judge Story defined it to be "the improperly joining in one bill, distinct and independent matters, and thereby confounding them, as, for example, the uniting in one bill of several matters perfectly distinct and uncon- nected against one defendant, or the demand of several matters of a distinct and independent nature against sev- eral defendants in the same bill. In the latter case the proceeding would be oppressive, because it would tend to load each defendant with an unnecessary burden of costs, by swelling the pleadings with the statement of the sev- eral claims of the other defendants with which he has no connection. In the former case 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 with each other, and great delays would be occasioned by waiting for the proofs respecting one of the matters, when the others might be fully ripe for hearing."^^ (50) 1 Daniell Ch. PI. & Pr., 363. (51) Story's Eq. PI., Sec. 271. Gaines vs. Chew, 2 How 619, and note. "To support the objection of multifariousness because a bill con- tains different causes of suit against the same person, two things must concur: (1) the grounds of suit must be different; (2) each 46 REQUISITES OF THE BILL. This definition has been in part modified by the new Rule 26: "The plaintiff may join in one bill as many causes of action, cognizable in equity, as he may have against the defendant. But when there is more than one plaintiff, the causes of action joined must be joint, and if there be more than one defendant the liability must be one asserted against all of the material defendants, or suffi- cient grounds must appear for uniting the causes of action in order to promote the convenient administration of jus- tice. If it appear that any such causes of action cannot be conveniently disposed of together, the court may order separate trials."^^ The effect of this rule is thought to be to permit the joinder of several and distinct matters in one bill by one plaintiff against one defendant,** by one plaintiff against two or more defendants asserting a joint liability with re- spect to the several matters claimed,** or by two or more plaintiffs claiming jointly several distinct things against one defendant,®* or by two or more plaintiffs claiming jointly several distinct things against two defendants, and asserting their joint liability with respect to the distinct . matters claimed.*® ground muaH be sufficient as stated to sustain a bill." Brown vs. Guarantee Trust Co., 128 U. S. 403. A bill filed by an administratrix to declare a trust in different parcels of property conveyed by the intestate to the defendants sep- arately, is multifarious in demanding several matters of different na- tures against different defendants. McCartney vs. Fletcher, 10 App. D. C. 5Y2. (52) See Appendix. (53) A. purchases from B. lot 1, pays part cash, secures the bal- ance by mortgage to B., payable in 90 days; at the same time he contracts to purchase from B. lot 2, and agrees to consummate his purchase within 90 days ; at the expiration of the 90 days he defaults in both undertakings. Under Story's definition two suits would be necessary to enforce B.'s rights, a suit to foreclose the mortgage on lot 1, and a suit for the specific performance of the contract to pur- chase lot 2. Under Eule 26 these two matters may be joined in one bill. (54) A. and B. give a mortgage to and make a contract with C. and then default under the circumstances of the illustration. (55) A. gives a mortgage to and makes a contract with B. and C, and defaults under the circumstances of the foregoing illustration. (56) A. and B. gives a mortgage to and make a contract with REQUISITES OF THE BILL. 47 It does not, however, permit the joinder of distinct mat- ters wherein the interests of the defendants are several and disconnected ; one having a quarrel with A. with respect to a party wall, and a quarrel with B. respecting the refor- mation of an instrument, may not have both his grievances settled in one suit, he will not be permitted to involve A. in a controversy concerning the reformation of the instru- ment, nor B. in one concerning the party wall. Such a suit would be altogether multifarious. Nor does it change the rule laid down in an early case*' forbidding the joinder of two or more complainants as- serting distinct and separate claims against one or more defendants; in the case last cited several plaintiffs joined in a bill claiming the return of moneys severally paid by them on distinct promissory notes and it was held that the bill must be dismissed. The application to cases of the principles underlying the rule of multifariousness, is often troublesome, the princi- ples themselves being based largely upon considerations of convenience. It is a common expression that "courts of equity delight to do justice not by halves,"®^ and that the object and aim of equity is to do full and complete justice, and that "if the court has obtained jurisdiction of the par- ties and the cause, it will completely settle the entire con- troversy" and award a decree, though it embraces also mat- ters not cognizable in equity, and so in many cases involv- ing the question of multifariousness, it will be found that the courts have balanced the convenience of the applica- tion of the strict rule against multifariousness, with these other rules of convenience, and held the bill to be multi- farious or not, as the greater convenience in the particular case dictated. The vice of multifariousness is not to be confounded with that class of cases illustrated by Bills Quia Timet C. and D. and then default under the circumstances of the illustra- tion. A hill to compel specific performance of a contract for the sale of lands, is not multifarious in seeking also to fix a lien on defendants' interests in the premises for moneys expended by plaintiff in perform- ance of the contract. Townsend vs. Vanderwerker, 160 TJ. S. 171. (5T) Teaton v. Lenox, 8 Pet. 123. (58) Van Zile Eq. PI. & Pr. Sec. 48. 48 REQUISITES OF THE BILL. which form a distinct head of equity jurisdiction, the jur- isdiction of equity to interfere in cases of repeated and continuous trespasses or other wrongs in order to prevent a multiplicity of suits or actions. Here the very nature of the relief sought may require the joinder of two or more defendants claiming under separate and distinct titles. Thus, where a person claiming the sole right to fish a river, filed his bill against several persons claiming several rights in the fishery as riparian owners, the bill was held not to be multifarious, for in this case the plaintiff did not claim several separate and distinct rights, in opposition to sev- eral and distinct rights claimed by the defendants, but claimed one general and entire right, which had been in- vaded by several persons under color of distinct titles.^® Nor should it be confounded with a case where the bill is said to be framed with a double aspect. For example, a plaintiff may claim the same right under different titles; thus, a widow, who is administratrix of her husband's es- tate, may maintain a suit to redeem real estate mortgaged by him and claim therein both as widow and as adminis- tratrix,^" but where the bill is framed with a double aspect, the alternative case stated must be the foundation for the same relief.®^ Or the plaintiff may be in doubt as to what kind of relief he will be entitled to upon all of the evidence and he may therefore pray for relief in the alternative. Thus, an infant complainant setting up a contract made with his father, was permitted to claim thereunder in his bill either a partnership interest in the subject matter of the contract, or a resulting trust on account of the invest- ment of his money.®'' The rules permitting a bill to be framed with a double aspect and permitting prayers for relief in the alternative do not justify a plaintiff in coming into court and assert- ing inconsistent facts as grounds for his relief. Thus, a party was held not to be entitled to allege in his original bill praying for the rescission of a contract of compromise that the compromise was procured by fraud and to allege (59) Daniell's Chancery PI. & Pr., 4tli Am. Ed., p. 341., (60) Eobinson v. Guild, 12 Met. 323. Daniell's Ch. PI. & Pr. 4th Am. Ed., p. 344, n. 3. (61) Shields vs. Barrow, 17 How. 130. (62) Stein vs. Eobertson, 30 Ala. 286. REQUISITES OF THE BILL. 49 by way of amendment that if the court should be of opinion that the compromise was valid it should be specifically en- forced. In condemning such a bill as amended the Federal Supreme Court said the bill presented not only two aspects but two diametrically opposite prayers for relief, resting upon necessarily inconsistent cases, one that the contract be rescinded for fraud and the other that it be specifically performed. While a bill may be originally framed with a double aspect or may be so amended as to become of that character, the alternative case stated must be the foun- dation for precisely the same relief.®* The fact that some of the defendauts may be concerned with only one phase of the relief prayed in the bill, does not necessarily render the bill multifarious. This is illustrated in the supposed case stated in the bill here shown.®* Here the purchaser at the tax sale cannot be said to have any interest in, or objection, to the relief sought against his co-defendants ; the lien acquired by vir- tue of the tax sale is a lien against the property irrespec- tive of who the owner may be. But the plaintiff vendee by virtue of his contract, should the same be held valid and enforceable, became in equity the owner of the prop- erty,®^ and as such owner became entitled to the right to redeem.®® True, he might have brought two suits, one against the parties to the contract and one against the tax sale purchaser, but as one decree could very well settle the entire controversy, and as equity abhors a multiplicity of suits, and as no real hardship would be suffered by try- ing all the issues in the one suit, the disposition of the burden of costs being always a matter in the discretion of the court, the letter of the rule against the joinder of distinct matters of controversy is well relaxed. No better statement of the rule against multifariousness has been found than that of Mr. Justice Story, who says, "numerous as are the cases on this subject, no principle can be extracted from them that can be safely adhered to (63) Shields ts. Barrow, 17 How. 130. (64) Supra, Sec. 8. (65) "Equity considers done that which is agreed to be done." (66) Gable vs. Seiben, 137 Ind., 155. Woodward vs. Campbell, 39 Ark. 580. Eogers vs. Eutter, 11 Gray (Mass.) 413. 4 50 REQUISITES OP THE BILL. as a general rule, but the courts must determine each case upon its own peculiar circumstances. While multiplicity of actions on the one hand ought to be avoided, we should be careful, on the other, to guard against complication and confusion in the investigation of rights, and the applica- tion of remedies, arising from the attempt to blend in one suit distinct and incongruous claims and liabilities. The interest and liability of defendants may be separate, and yet they can be joined in the same suit. But then their liability must flow from the same fountain ; their interests radiate from some common center, as if they have distinct portions of complainant's distributive share, or have pur- chased severally, and each for himself from complainant's testator separate portions of his trust property, and in such like cases."®'' Mr. Daniell quotes Lord Cottenham as saying that it is utterly impossible, upon the authorities to lay down any rule or abstract proposition as to what constitutes multi- fariousness, which can be made universally applicable. The cases upon the subject are extremely various, and the courts in deciding them seem to have considered what was convenient in particular cases, rather than to have at- tempted to lay down an absolute rule.®* Prior to the new rules the proper way to take advantage of the defect of multifariousness in a bill was by demurrer, and it was too late to make the objection for the first time, in the answer, or at the hearing.®* There was authority, however, upholding the right to make the objection in the answer, and it was regarded as well settled that the court itself of its own motion might raise the objection and dismiss the bill.''" The new rules having abolished demurrers, the objection is made either by motion or in the answer, or the court may still notice it at the hearing of its own motion, though not raised by the pleadings. § 14. Scandal and Impertinence.— Scandal consists in the allegation of anything which is unbecoming the dignity of the court to hear, or is contrary to decency or good man- (67) Johnson vs. Brown, 2 Humph. Tenn. 328. (68) Daniell's Oh. PI. & Pr., 4th Am. Ed. p. 334. (69) Nelson vs. Hill, 5 How. 127. (70) Daniell's Oh. PI. & Pr., 4th Ed., p. 346. BBQUISITBS OP THE BlUi. 51 ners, or which charges some person with a crime not nec- essary to be shown in the cause, to which may be added that any unnecessary allegation, bearing cruelly upon the moral character of an individual, is also scandalous.''^ The matter alleged, however, must be not only offensive, but also irrelevant to the cause, for however offensive it be, if it be pertinent and material to the cause the party has a right to plead it. It may often be necessary to charge false representations, fraud and immorality, and the pleading will not be open to the objection of scandal, if the facts justify the charge.''^ Impertinence is described by Lord Chief Baron Gilbert to exist "where the records of the court are stuffed with long recitals, or with long digressions of matter of fact, which are altogether unnecessary and totally immaterial to the matter in question.''^ It consists of allegations not material to the suit, or if material, which are not in issue, or which if both material and in issue, are set forth with great and unnecessary prolixity.'* Under this rule deeds should not be set out in hwc verba, but should be pleaded according to their legal effect.'^ Scandalous matter as a vice of pleading is always im- pertinent matter. Impertinence in pleading may or may not amount to scandal. At a very early date stringent measures were taken to prevent the introduction in the pleadings of scandalous and impertinent matter. Fines, costs and imprisonment were in the time of Elizabeth imposed upon the parties and their counsel as well.'® (71) Daniell's Ch. PI. & Pr., p. 347. (72) Id., p. 347 et seq. (73) Id., p. 349. (74) Shipman Eq. PI., p. 349, citing Langdon vs. Goddard, 3 Story, 13. (75) Hood vs. Inman, 4 Johns. Ch., 437. (76) The following order, passed in Chancery in A. D. 1596, is taken from Spence's Equitable Jurisd., Vol. 1, p. 376 : "Forasmuch as it now appeared to thi3| court by a report made by the now Lord Keeper, being then Master of the Eolls, upon con- sideration had of the plaintiff's Eeplication according to an order of the 7th day of May, of Anno 37 Eeginae, that the said Eeplica- tion doth amount to six score sheets of paper, and yet all the mat- 52 EBQUISITES OF THE BILL. The objection to this vice of pleading was formerly taken either by motion to expunge or by exceptions. It was not ground of demurrer, since the objection was not one of legal insufficiency, and the maxim "surplusage does not vitiate"'''' was held to apply.'" Eule 21 provides : "The right to except to bills, answers and other proceed- ings for scandal or impertinence, shall not obtain, but the court may, upon motion or its own initiative, order any redundant, impertinent or scandalous matter stricken out upon such terms as the court shall think fit." ter thereof which is pertinejit might have been well contriTed in sixteen sheets of paper, wherefore the plaintiff was appointed to be examined to find out who drew the same Eeplication, and by whose advice it was done, to the end that the offender might, for example's sake, not only be punished, but also be fined to her Majesty for that offence, and that the defendant might have his charges sus- tained thereby. (The execution of which order was, by a later order made by the late Lord Keeper the 26th of June, Anno 2Yth Reginae, suspended without any express cause, shewed thereof in that order, and was never since called upon until the matter came to be heard on Tuesday last, before the Lord Keeper, at which time some mention was again made of the same Eeplication), and for that it now ap- peared to his Lordship, by the confession of Eichard Mylward, alias Alexander, the plaintifi's son, that the said Eichard himself did both draw, devise, and engross the same Eeplication, and because his Lord- ship is of opinion that such an abuse is not in any sort to be toler- ated, proceeding of a malicious purpose to increase the defendant's charge, and being fraught with much impertinent matter not fit for the court: It is therefore ordered, that the warden of the Fleet shall take the said Eichard Mylward, alias Alexander, into custody, and shall bring him into Westminster Hall on Saturday next, about 10 of the clock in the forenoon, and then and there shall cut a hole in the midst of the same engrossed Eeplication which is delivered unto him for that purpose, and put the said Eichard's head through the same hole, and so let the same Eeplication hang aboift his shoulders with the written side outward, and then, the same so hanging, shall lead the said Eichard bareheaded and barefaced round about West- minster Hall, whilst the Courts are sitting and shall show him at the Bar of every of the three Courts within the Hall, and then shall take him back to the Fleet, and keep him prisoner imtil he shall have paid 10 £ to her majesty for a fine and 20 nobles to the defendant for his costs in respect of the aforesaid abuse, which fine and costs are now adjudged and imposed upon him by this court for the abuse afore- said." Eeg. Lib. A., 1596, fol. 672. Sir J. Puckering, Lord Keeper. (77) "Utile per inutile non vitiatur." (78) Daniell's Oh. PI. & Pr., p. 349. REQUISITES OF THE BILL. 53 And Eule 24 is as follows : "Every bill or other pleading shall be signed individ- ually by one or more solicitors of record, and such signa- tures shall be considered as a certificate by each solicitor that he has read the pleading so signed by him ; that upon the instructions laid before him regarding the case there is good ground for the same; that no scandalous matter is inserted in the pleading, and that it is not interposed for delay." CHAPTER IV. VARIOUS FORMS OF BILLS DEFINED. § 15. Classification of Bills. — Bills in equity are divided into two general classes: Original bills, i. e., those that initiate the litigation — the commencement of the proceed- ings, and Bills not Original, i. e., those filed for the purpose of carrying on or reviving some litigation already pending. The first class needs no illustration or further explanation ; the second class embraces Supplemental Bills, Bills of Re- vivor, Bills of Revivor and Supplement, Cross Bills, Bills of Review, Bills to Carry Decrees into execution, Bills to Suspend or Avoid the Operation of Decrees, and Bills to Impeach Decrees on the ground of Fraud, as to which some explanation is appropriate. If in the course of a suit after the original bill is filed, the death of a party plaintiff or defendant should occur, the suit becomes defective and rests in a state of suspen- sion or abatement until the heir-at-law, devisee or personal representatives of the deceased, are brought in and made parties. Or if after the filing of the suit, the plaintiff learns of some new aud material matter proper to be alleged in his bill, of which he was ignorant at the time he filed it, or which has transpired since the filing thereof; or some change has occurred in respect to the ownership of or title to the property involved in the suit, e. g., if after filing a creditors' bill, the debtor were adjudged bankrupt whereby the title to the property sought to be subjected to the payment of the debt becomes vested by operation of law in the trustee in bankruptcy, it would be proper to make matter of record in the proceeding already insti- tuted, the newly-discovered facts, or the facts subsequently transpiring, in order that the record might show the true situation when the case is brought to hearing. In the former case (abatement) the appropriate pro- ceeding was by bill or revivor, and in the latter case, a 54 VAEIOUS FORMS OF BILLS DEFINED. 5.J supplemental bill. If in the same suit there should occur a transfer of title, and death of a party (or other matter of abatement), as well, the pleading to be filed to place the facts on record would be a bill of revivor and supplement. In the bills of revivor, or supplement, the change in the title occurs by operation of law, the title is cast by the statutes of descent or distribution or by the bankruptcy act, and these are called pure bills of revivor or supple- ment. Where, however, the title passes, not by operation of law, but hj the deed or will of the party whose title has been transferred, these bills are called bills in the nature of a bill of revivor or supplement. As they introduce into the record a new muniment of title, the validity of which may be litigated by the parties to the suit, they are to the extent of the matter thus introduced original bills. Thus, if plaintiff suing to set aside a conveyance on the ground of fraud, die pending the suit, leaving a will de- vising the land to another, the devisee is entitled to carry on the litigation and have the advantage of what proceed- ings have already been had, but he does so, not by the pure bill of revivor, but by a bill in the nature of a bill of re- vivor, wherein he sets up the title derived by him through the will, which new title the defendant has the right to attack, and as to which new title the bill is regarded as an original bill. The pure bill of revivor is now obsolete, suits being revived by motion suggesting the death of the party and the name of the person or persons proper to be substituted in his place, followed by the order of the court (made after notice given) directing that the suit stand re- vived.^ The practice with regard to supplemental pleadings is also much modified, the motion and notice being substi- tuted for the more cumbersome procedure by supplemen- tal bill.^ These bills. Revivor and Supplement, conclude with a prayer for process against all parties as to whom process is necessary. However, as these bills like an amended bill, are mere adjuncts to the original proceeding, process is (1) Rule 45, Appendix. The character and object of the other forms of hills not original is indicated by their names, and forms of them appear in the appendix. (2) Rule 34, Appendix. 56 VARIOUS FORMS OF BILLS DEFINED. only necessary where new parties are brought in. Where the parties have already been served no further subpoena is required ; a mere rule or order to answer is sufficient* But it is not competent for one of the parties, without service of new process or appearance, to institute further proceedings on new issues and for new objects, although connected with the subject matter of the original litiga- tion, by merely giving the new proceedings the title of the original cause. If his bill begins a new litigation, the parties against whom he seeks relief are entitled to notice thereof, and without it they will not be bound.* Bills are further classified as Bills Praying Relief and Bills Not Praying Relief. The only bills falling in the latter category are Bills of Discovery, Bills to Perpetuate Testimony, and Bills to Examine Witnesses de bene esse, all other bills pray relief.* § 16. Bills of Discovery. — While every bill, except the bill of certiorari, seeks a discovery of facts relating to the plaintiff's case, the bill of discovery properly so-called is a bill brought by a party to a suit at common law, whether plaintiff or defendant, for the discovery of facts, deeds or writings within the knowledge or control of the defendant to the bill, who is a party in opposite interest to the action at law. The object of this bill is to enable the plaintiff to obtain information of material facts to prosecute or defend the action at law. The bill seeks no relief in con- sequence of the discovery, but it may ask the stay of pro- ceedings at law until the discovery is made.^ This form of bill, now practically obsolete, was formerly much used because of the inability of obtaining evidence by one party to a law suit from another party thereto, which inability has been in large part obviated as the re- sult of statutes removing the disability of witnesses on account of interest, and compelling the production of docu- (3) Shaw V. Bill, 95 F. S. 10. (4) Smith V. Woolfolk, 115 TJ. S. 143. Great Western Tel. Co. v. Purdy, 162 TJ. S. 329, 10 E. C. L. 504. (5) Some authors classify the Bill of Interpleader as a bill not praying relief but the logic of so doing is not apparent and the ques- tion is at all events academic. (6) Mitford & Tyler Eq. PI. VARIOUS FORMS OF BILLS DEFINED. 57 ments on motion or notice,'' and where such statutes pre- vail the pure bill of discovery "has fallen into a condition of innocuous desuetude.' It has been held, however, in a suit for discovery of facts relating to the infringement of a patent, where it seemed discovery was the only means of ascertaining the facts nec- essary to a prosecution of the case, that because a court of law now has power to extend relief is no reason for a court of equity to forego the exercise of an ancient and well-settled jurisdiction ; that it is a well-known principle that equity will not yield a jurisdiction once acquired, and such powers must remain until definitely abolished by the legislature.® In England it is held that discovery will not be granted in aid of proceedings before a foreign tribunal. The Amer- ican courts hold, however, that a bill of discovery is avail- able for the prosecution or defense of a civil suit in a sister state. ^° (For form of this bill see Appendix.) § 17. Bills to Perpetuate Testimony. — The purpose of such a bill is to preserve evidence for use in some future litigation; there being no suit pending in which deposi- tions might be taken at the time it is filed. It is filed by one who is threatened with suit at some future time, who is at the time of filing incapable of bringing suit ; and has material witnesses whose testimony he is liable to lose by death or departure from the jurisdiction, before a trial may be had.^^ The bill should state that the facts cannot (7) Shipman Eq. PI., page 287. Brown Y. Swann, 10 Pet. 497. Kindscopf v. Platto, 29 Fed. 130. Story Eq. PI., Sec. 555. (8) Preston v. Smith, 26 Fed. 884. Ex parte Boyd, 105 U. S. 657. U. S. V. McLaughlin, 24 Fed. 823 (9) Colgate V. Telegraph Company, 23 Fed. 82. Shipman Eq. PI., page 288. (ID) Burgess v. State, 2 Barh. Ch. 276. (11) "The jurisdiction which courts of equity exercise to perpetuate testimony is open to great objections ; first, it leads to a trial on writ- ten deposition, which is much less favorable to the cause of truth than the viva voce examination of witnesses. But what is still more im- portant, inasmuch as those written depositions can never be used until after the death of the witnesses, and are not, indeed, published till after the death of the witnesses, it follows, whatever perjury may 58 VARIOUS FORMS OF BILLS DEFINED. be immediately investigated in an action at law, and ac- cording to most text writers, that the evidence of material witnesses is likely to be lost by their death or departure from the jurisdiction before the investigation can take place.^^ have been committed in those depositions, must necessarily go un- punished. And this testimony has, therefore, this infirmity, that it is not given under the sanction of the penalties which the general policy of the law imposes upon the' crime of perjury. It is for these reasons that courts of equity do not entertain bills to perpetuate tes- timony generally for the purpose of being used upon future occasion, unless where it is absolutely necessary to prevent a failure of justice." Angell V. Angell, 1 Sim. & S. 83. (12) Story Eq. PI., Sec. 304. "If witnesses to a disputable fact are old and infirm, it is very usual to file a bill to perpetuate the testimony of those witnesses, although no suit is pending; for, it may be, a man's antagonist only waits for the death of some of them to begin his suit. This is most frequent when lands are devised by will away from the heir-at-law; and the devisee, in order to perpetuate the testimony of the witnesses to such will, exhibits a bill in chancery against the heir, and sets forth the wiU verbatim therein, suggesting that the heir is inclined to dispute its validity; and then the defendant having answered, they proceed to issue as in other cases, and examine the witnesses to the will; after which the cause is at an end, without proceeding to any decree, no relief being prayed by the will, but the heir is entitled to his costs, even though he contest the will. This is what is usually meant by proving a will in chancery." 3 Black. Com. 450. "The course which this court always adopts, in bills to perpetuate testimony, is very simple and straightforward. Where a person files such a bill raising an issue which can be tried at once at law, this court holds that it is not a proper case for a bill to perpetuate testi- mony; on the contrary, as the evidence when taken cannot be used if the witnesses are alive, and as the depositions are sealed up and can only be used when the case arises hereafter, it would be idle for this court, when the question might be tried at once, and the witnesses themselves might be examined, to perpetuate their testimony. If the case depends solely upon the testimony of one witness, or of witnesses who were very old, then the court allows that person to be examined de hene esse without the necessity of a bill to perpetuate testimony. But where a person in possession of an estate hears that another in- tends to impeach his title, upon the ground that the title deed by which he holds the estate is a forgery, then, as the person in posses- sion can take no step to establish his title, and as the person out of possession will not bring an ejectment against him until his witnesses are dead, it has always been held that the person in possession may file a bill to perpetuate the testimony of his own witnesses, in order to frustrate the design of the person who delays bringing forward his VARIOUS FORMS OF BILLS DEFINED. 59 There are, however, many well-considered cases holding that it is not essential to show that the witnesses are aged, infirm or likely to depart the jurisdiction ; that the danger of the loss of their testimony merely through lapse of time is sufficient to justify the court in entertaining the bill.^' The bill should state specifically the subject matter about which the evidence is to be given, giving the names of the witnesses to be examined ; the title or interest of the plain- tiff and defendant therein; the evidence to be preserved, and the necessity for perpetuating it, and pray leave to examine the witnesses to the end that their testimony may be preserved,^* and should be either sworn to, or ac- companied by an affidavit stating the circumstances under which the evidence is in danger of being lost.'^* It prays for process and for the perpetuation of the tes- timony, but for no relief.-'^ The evidence obtained by such a bill is not available to the party, if the witnesses whose depositions have been taken and filed are alive and within the jurisdiction of the court at the time the threatened suit or action is brought to trial. As such bills pray no relief they are never brought to a hearing, their object is accomplished when the order for the examination of the witnesses is entered, case until the witnesses who can speak to the truth of the defense are no longer in existence." Hall V. Stout, 4 Del. Oh. 269. Ellice V. Eoupell, 32 Beav. 299. (13) Encyc. PI. and Pr., Vol. 16, p. 355, and cases cited. (14) Story Eq. PI., Sees. 300-3. Mitf. & Tyler, Eq. PL, page 149. (15) Story Eq. PL, Sec. 305. (16) In many jurisdictions statutes authorize the taking of depo- sitions in perpetuam rei memoriam under a commission issued with- out the filing of a suit, and, consequently, such bills have fallen largely into disuse. Spencer v. Peek, L. E., 3 Eq. I., 415. Shipman Eq. PL 284. Section 1058, Code D. 0., provides for the taking depositions de hene esse in pending suits, and also provides that "In any case where the interests of justice may require, the Supreme Court of the Dis- trict of Columbia may grant a dedimus potestatem to take depositions according to common usage, and may, according to the usages of chancery, direct depositions to be taken in perpeiuam rei memoriam if they relate to any matters that might be cognizable in any court of the United States." 60 VARIOUS FOEMS OF BILLS DEFINED. the examination (at which counsel for both sides may be present and cross-examine) is had, and the depo^tions are filed in court. ( For form of this bill see Appendix. ) § 18. Bills to Examine Witnesses De Bene Esse. — Though similar in many respects to the bill to perpetuate testimony, this bill is distinguished by the fact that it can only be used in aid of an action already pending, to pre- serve testimony which might be otherwise lost, and like bills to perpetuate testimony it has fallen into disuse owing to statutory authority to take testimony in pending suits. It is of use only in the pcurtioular action for which sought and not in view of litigation which might afterward arise. It may be brought by the plaintiff or the defendant in an action at law.''' The object of the bill is to take the testimony of wit- nesses for the trial at law where it may otherwise be lost, owing to the fact that the witnesses are aged or infirm, or about to leave jurisdiction; that is to say, there must be averments that a suit at law is pending ; that the depo- sitions cannot be taken in the ordinary methods prescribed, and that the aid of a court of equity is necessary to per- petuate the testimony. The facts which the plaintiff ex- pects to prove must be set out, and the necessity for taking the testimony shown.^* An affidavit should accompany the bill stating positively the circumstances under which the evidence might be lost.^' If the witness can be produced at the trial he must testify on the witness stand ; if not the testimony de bene esse may be read as evidence. The necessity for resorting to such a bill is very gen- erally removed by statutes authorizing the taking of depo- sitions de bene esse.^" (17) Story Eq. PL, Sec. 307 and 308. (18) Story Eq. PL, Sec. 308. Eiciiter v. Jerome, 25 Eed. 679. (19) Shipman Eq. PL 287. (20) Section 1058, Code D. C, provides in part as follows : TESTIMONY DE BENE ESSE. The testimony of any witness may be taken in any civil cause depending in any court of the Dis- trict of Columbia, whether the cause be at issue or not, by deposition de bene esse, under any of the following conditions: First. Where the witness lives beyond the District of Columbia. VABIOUS FORMS OF BILLS DEFINED. 61 § 19. BiUs of Certiorari.— This is a bill filed to remove a suit from an inferior to a superior court of equity on the ground of alleged incompetency of the inferior court, or injustice in its proceedings, for the purpose of having the cause further proceeded with and decided in the su- perior court, to which process is returnable. The bill is of rare occurrence, both in England and America. Its object is simply to remove the suit, and not to insti- tute an independent proceeding calling for relief. The bUl merely states the proceedings in^^ inferior court, shows the alleged incompetency and suggests that the cause is out of its jurisdiction or that equal justice is not likely to be done.^** It does not pray that the defendant answer or even ap- pear to the bill, consequently it prays no writ of subpoena, but merely prays the writ of certiorari to remove the cause.^^ In case the cause is removed, the bill exhibited in the higher court is considered an original bill and is proceeded upon as such. § 20. Bills of Interpleader.— A bill of interpleader is one filed by a party against two or more persons who claim from him the payment of a debt or performance of a duty, praying the court to compel such persons to interplead and state their several claims, so that upon such statement the court may adjudge to whom such payment or performance belongs.^* Second. Where the witness is likely to go out of the United States or beyond the District and not return in time for the trial. Third. Where the witness is infirm or aged, or for any other rea- son the party desiring his testimony fears he may not he able to se- cure the same at the time of trial, whether said witness resides within the District or not. Fourth. If during the trial any witness is unable, by reason of sickness of other cause, to attend the trial, the deposition of such witness may, in the discretion of the court, be taken and read at the trial. This statute which is characteristic of those on the subject pre- scribes the procedure in such cases. (21) Story Eq. PI., Sec. 298. (22) Mitf. & Tyler PI. & Pr., 148. (23) Story Eq. PI., Sec. 298. (24) Story Eq. PL, Sec. 291. 62 VARIOUS FORMS OF BILLS DEFINED. The right to a decree of interpleader depends upon and requires the existence of the four following elements : 1. The same thing, debt or duty must be claimed by both or all the parties against whom the relief is demanded. 2. All their adverse titles or claims must be dependent or derived from a common source. 3. The person asking the relief— the plaintiff— must not have nor claim any interest in the subject matter. 4. He must have incurred no inde- pendent liability to either of the claimants; that is, he must stand perfectly indifferent between them, in the po- sition merely of a stakeholder.^® A vendee of property cannot interplead his vendor and a third person claiming to own the property by an inde- pendent antagonistic title, the claim of the third person must be derived under or through the vendor; as for in- stance, where the third person asserts that the vendor had assigned the purchase money to him and then repudiated the assignment. This is what is meant by "privity."^^ The bill is classified by some authors as being among those "not praying relief," and in fact prays nothing more than that the respondents set forth their several titles, and be required to interplead, and settle and adjust their de- mands between themselves.^'' So far as the plaintiff is concerned the proceeding as to him is at an end when the court makes an order permitting him to pay the money into court and requiring the defend- ants to interplead, and up to this point the plaintiff is en- titled to his costs. After the order of interpleader is en- tered the proceeding is carried on between the defendants to a final decree adjudicating their rights to the fund, and (25) Pomeroy, Eq. Jurisp., 2d Ed., Sec. 1322. (26) Id., Sec. 1324. Northwestern Mut. L. Ins. Co. v. Kidder, Ann. Cas., Vol. 1, p. 511, and note (162 Ind. 382). Crane v. McDonald, 118 N. T. 65Y. In England and in some jurisdictions in this country, partly by statute and partly by judicial decision, the rule requiring privity seems to have been abrogated. Note Ann. Cas. 1, p. 513. Wells-Fargo v. Miner, 25 Fed. 533. Packard v. Stevens, 58 N. J. Eq. 489. Crane v. McDonald, 118 N. T. 648. (27) Shipman Eq. PL, 281. VAEIOUS FORMS OF BILLS DEFINED. 63 the proceeding stands as between the defendants upon the same footing as if one of them had brought the bill against the other for the purpose of determining their rights with regard to the subject of controversy.** It is not sufficient that the bill allege merely that two or more are claiming the same thing from the plaintiff, it must set forth facts showing a reasonable basis for enter- taining an honest doubt as to which of the claimants is entitled, and that plaintiff would be in some jeopardy of being compelled to discharge the same obligation twice, or of being vexed with two or more suits concerning it, should he undertake to decide the conflicting claims him- self. Where it is evident from the facts set forth that the claim of one of the defendants (there being but two) is not such that it can be sustained, the bill will be dis- missed.*® Interpleader being a proceeding in personam and not in rem, a non-resident defendant cannot be brought in by serv- ice by publication.^" The court will not permit the proceeding to be used to give an advantage to either party, or in order that plaintiff may delay the payment of money due, by raising a doubt as to whom it is due ; it lies only in cases where complain- ant is in good faith and without collusion so placed that he cannot safely decide between the adverse claimants of a fund or right under his control ; therefore, all such bills must be accompanied by an affidavit of non-collusion, and the fund involved must be brought into court, or the bill must contain a tender to do so.'^ If the bill is filed by an officer of a corporation on its behalf, he must accompany it with an affidavit denying collusion on his part as well as that of the corporation.** (28) Horton v. Baptist Church, 34J Vt. 309. (29) Ann. Cas., 1913 0., 1196. (30) Walsh V. Ehall, 6 Kulp (Pa.) 483. Patomi V. Campbell, 12 Mees. & Wels. 277. Wash. L. Ins. Co. v. Gooding, 19 Tex. Civ. App. 490, 49 S. W. 123. (31) Mitford & Tyler Eq. PI. 148. Shipman Eq. PI. 278. Michigan and Ohio Plaster Co. v. White, 44 Mich. 25, 5 IST. W. 1086. (32) Story Eq. PL, Sec. 297. 64 VAEIOTJS FORMS OF BILLS DEFINED. If one of the claimants has instituted suit on his claim but no judgment has been entered, the plaintiff may ob- tain an injunction to restrain the proceeding against him in the same bill wherein he prays for interpleader ; but if judgment has been taken against him by one of the claim- ants, he cannot compel the judgment creditor and the other claimants to interplead.^' These bills are open to the same defenses as other bills ; demurrer or motion to dismiss, if the defect in form or sub- stance appear on the face of the bill, or by answer if the ob- jection is for matter de hors the record.'* While the strict bill of interpleader prays no other relief than the right to pay the fund into court and have the claimants thereof litigate their rights concerning it, a party may be placed in such a position as to require some- thing more than a mere order of intei*pleader. For ex- ample, a mortgagor desires to pay off the mortgage, but finds that the bond or obligation secured by the mortgage is claimed by some one other than the holder of the bond or obligation who also claims it. Here it would not be suflficient merely to pay the money into court and have the claimants interplead concerning it, because the mortgage itself would still remain unreleased of record, and consti- tute a cloud on his title. Therefore, he is entitled to have the mortgage released, and the obligation surrendered up and cancelled, in addition to having the claimants inter- plead, and such a bill is called a bill in the nature of an interpleader.'^ In such a bill no affidavit negativing collusion is re- quired, and it is not essential that there should be a legal doubt as to complainant's rights. § 20. (a) Cross Bills.— A Cross Bill is a bill filed by a defendant against a plaintiff, or against plaintiff and de- defendants, or by one defendant against another, touching the matter in question in the original bill and praying affirmative relief in favor of the defendant {cross plain- tiff) against the plaintiffs and defendants, either or (33) Story Eq. PI., Sec. 296. (34) Williams v. Matthews, 47 N. J. Eq. 196. French v. Eobrchard, 50 Vt. 43. (35) Darden v. Bums, 6 Ala. 362. Van Zile's Eq. Pleading. VARIOUS FORMS Or BILLS DEFINED. 65 both {cross defendants). Prior to the new rules a de- fendant in the federal courts (except in suits for an accounting,*^ for partition,''' for specific performance,*' for marshalling assets,*^ cases involving interfering pat- ents,*" and cases involving the rights of infant defend- ants,*^) could have no affirmative relief unless he filed a cross bill. Now, by virtue of Eule 30, affirmative relief may be had under the answer without cross bill, if the basis of the cross bill be a set-off or counter-claim. Affirmative relief in favor of a defendant must grow out of either some matter of set-off*^ or matter of counter- claim;*^ or some demand in favor of a defendant against other defendants. Prior to the new rules matter of set-off strictly could not be made the subject of a cross bill be- cause of the principle, well established in the federal courts, that the subject matter of the cross bill must be germane to the subject matter of the original bill.** Under the new rules set-off as well as counter-claim may be availed of in the answer. While the new rules do not in terms abolish the cross bill the necessity for resorting to it will not so often arise. Rule 31 recognizes the right of a defendant to have cross relief against his co-defendants as well as against the plain- tiff in cases where his right to relief against the plaintiff necessarily includes relief against co-defendants; the lan- guage of the rule in that respect being — "If the counter-demand is one which affects the rights of other defendants they or their solicitors shall (36) Hall V. McPherson, 3 Bland (Md.) 529. (37) McClaskey v. Barr, 48 Fed. 134. (38) Bradford v. Tenn., 13 How. (U. S.) 57. (39) Lehman v. Tallassee Mfg. Co., 64 Ala. 568; Watts v. Bank, 76 Ala. 473. (40) Kevised Statutes, Sec. 4918. (41) Star T. Brown, 101 111. 395. (42) Set-off is defined to be a counter-demand, generally of a liquidated debt growing out of an independent transaction for which an action might be maintained by the defendant against the plaintiff. Encyc. L., 2 Ed., vol. 25, p. 488. (43) Counter-claim is a broader term than set-off, including not only cross demands growing out of independent transactions but matters of recoupment as well, growing out of the transaction giving rise to the original litigation. (44) McPherson v. Cox, 96 U. S. 404. 5 66 VARIOUS FORMS OF BILLS DEFINED. be served with a copy of the same (the answer) within ten days from the filing thereof, and ten days shall be accorded to such defendants for filing a reply. In de- fault of a reply a decree pro confesso on the counter- claim may be entered as in default of an answer to the bill." The only case wherein a cross bill would still be neces- sary, it seems, is where a defendant is entitled to affirma- tive relief against a co-defendant or others, and not against a plaintiff. In other words where the defendant asserts a demand that is neither set-off nor counter-claim. Such a situation would arise in a bill to foreclose a mortgage ; B and C, the mortgagees, defendants in the bill, and joint obligors of A, the plaintiff, occupy in fact as between them- selves the relation of principal and surety ; B alone having received the avails of the mortgage and having covenanted to indemnify and save harmless his co-obligor C, from any loss by reason of his joining in the execution of the mort- gage. Here a decree of foreclosure in accordance with the prayer of the original bill would render complete justice to A, the mortgagee, but would leave unadjusted C's equity for exoneration as against B; and so in order that the court may, in one decree, grant to A the relief to which he is entitled as against both B and C, and to O the relief he is entitled to against B, C may file a cross bill. Frame of the Bill. — In modern practice the cross bill bears the same entitling or caption as the original bill ; is filed in the same court ; and is treated as a part of the same cause. In the stating part of the bill only so much of the original bill and the proceedings had thereunder need be stated as is necessary to apprise the court of the nature of the claim asserted and the situation of the parties with respect thereto. It prays for process, relief, and may pray for discovery. Parties to the Cross Bill. — All persons who will be af- fected by the decree sought in the cross bill must be made parties thereto and process must be served on them or their solicitors of record unless they voluntarily appear ;*® and on failure to appear and answer, a decree pro confesso (45) Encyc. PL & Pr., vol. 5, p. 658. VARIOUS FORMS OF BILLS DEFINED. 67 may be had on the cross bill under the same circumstances authorizing a decree pro confesso on the original bill. Adding New Parties. — The federal supreme court has said: "If the plaintiff desires to make new parties he amends his bill and makes them. If the interest of the defendant requires their presence he takes the ob- jection of non-joinder and the complainant is forced to amend or his bill is dismissed. If, at the hearing, the court finds that an indispensable party is not on the record it refuses to proceed. These remedies cover the whole subject and a cross bill to make new parties is not only improper and irregular but wholly unnec- essary."*® Many later decisions have declared this statement to be merely dictum.*'' And it has been expressly disapproved and distinguished in a well reasoned opinion in the United States Circuit Court wherein it was said : "An examination of his (Mr. Justice Curtis') rea- soning shows that he made the suggestion without much examination probably and his reasoning does not cover the whole ground as to all classes of cases. The modes of procedure suggested by him while ample in cases of cross bills brought for discovery in aid of a defense merely, would not be broad enough to cover cases wherein the defendant is entitled to an affirma- tive decree in his favor."** Hearing. — For most purposes the original bill and cross bill are considered as one suit and are heard together in order that a single decree may settle the entire contro- versy.*® Effect of Dismissal of Original Bill. — The general rule being that a cross bill is regarded merely as a depend- (46) Shields v. Barrow, lY How. (TJ. S.) 145. (47) Encye. PI. & Pr., vol. 5, p. 648. (48) Brandon Mfg. Co. v. Prime, 14 Blatchf. (TJ. S.) 375. (49) Ayres v. Carver, 17 How. 591. 68 VARIOUS FORMS OF BILLS DEFINED. encj of the original bill, dismissal of the original bill carries the cross bill with it.*° This must of course always be so where the matter of the cross bill is merely defensive, but when the cross bill makes a case entitling the defendant to afllrmative relief irrespective of whether or not the original bill is maintained, the dismissal of the original bill does not dispose of the cross bill and the latter remains for dis- position as if it had been filed as an original bill.^^ § 20. (b) Amendments. — ^An amendment is the correc- tion of an error or the supplying of an omission in the process or pleadings. An amended pleading differs from a supplemental pleading in that the true function of the latter is to spread upon the record matter material to the issue which has arisen subsequent to the filing of a plead- ing, while matter of amendment purely is matter that might well have heen pleaded at the time the pleading sought to be amended was filed, but which through error or inadvertence was omitted or misstated. It has been declared that the allowance of amendments is incidental to the exercise of all judicial power and is indispensable to the ends of justice.®* The exercise of the power is a matter resting in the sound discretion of the court, subject to such regulation as has been provided by statute or rule of court, and like all other matters resting in discretion is not reviewable on appeal, except in the case of a plain abuse of the power. In the federal courts power to permit amendments is expressly granted by section 954 of the Re- vised Statutes of the United States.*' This section which was the 32d section of the Judiciary Act of September 24, 1789, constitutes the statute of jeofails for the federal courts, and is in effect a re-declaration of the statute 32 Henry VIII.«* In a court of equity, which looks to the real and sub- stantial merits of a case, matters of form are never suffered to prejudice the rights of a party, and liberty of amend- (50) Dows V. Chicago, 11 Wall. 108. (51) Encyc. PI. & Pr., vol. 5, p. 663. (52) Tilton V. Oofield, 93 U. S. 163; Bank v. Sherman, 101 IT. S. 403. (53) Gagnon v. TJ. S., 193 U. S. 451. (54) Garland v. Davis, 4 How. 131; Phillips v. Seymour, 91 TJ S. 656, VARIOUS FORMS OF BILLS DEFINED. 69 ment in such particulars, in a greatei* or less degree, is al- lowed in all of the pleadings. Eule 19 provides : "The court may at any time, in furtherance of jus- tice, upon such terms as may be just, permit any proc- ess, proceedings, pleading or record to be amended, or material supplemental matter to be set forth in an amended or supplemental pleading. The court, at every stage of the proceeding must disregard any er- ror or defect in the proceeding which does not affect the substantial rights of the parties." Eule 28 permits the plaintiff to amend his bill without leave of court at any time before the defendant has filed his answer, but if the defendant has obtained a copy of the bill as originally filed the plaintiff must at his own ex- pense furnish defendant with a copy of the bill as amended. The bill may be amended after answer as well as before, but leave of court must then be obtained and in such case Rule 32 provides that the defendant must put in a new and supplemental answer within ten days, unless a longer time is ordered by the court. Eule 37 provides that any person may at any time be made a party to the proceeding if his presence is necessary or proper to the complete determination of the cause. This is done by way of an amended bill, if he should have been a party to the original bill. If, however, the title of the new party devolved upon him since the filing of the original bill the appropriate proceeding to bring him in would be by supplemental bill instead of amended bill. The Federal Supreme Court has held that the liberality which generally governs the courts in permitting amend- ments in equity has its limitations when the matter of amendment is matter of substance rather than matter of form. For instance, in a suit brought to rescind a con- tract of compromise on the ground of fraud it was held to be error to permit an amendment praying the specific per- formance of the contract; the court saying that a com- plainant is not at liberty to abandon the entire case made liy his bill and by allegations of amendment make a new and different case.'* (55) Shields v. Barrow, 17 How. 130 (1855). 70 VAEIOUS FORMS OF BILLS DEFINED. This limitation upon the liberality of the courts in the matter of amendments is in harmony with the common law doctrine that the proof must follow the allegations, and that every defendant when brought into court is entitled to be apprised of the precise nature of the claim asserted against him. Where, however, the object sought by the amendment is not to alter the substantial facts of the case stated in the bill but to accommodate the relief to the case actually proven, amendments have been permitted even after all the evidence has been adduced and the case has been heard and submitted. Thus in a suit filed to en- force a parol contract for the transfer of land, made in consideration that the plaintiffs would intermarry, the bill alleged that the respondent promised to give the land to one or the other of the complainants in consideration of their intermarriage, and that the complainants did inter- marry "partly in consideration of said promise." After all the evidence was in and the case had been heard and submitted, the court of its own motion, before rendering any decree, gave the plaintiffs leave to amend their bill, by alleging the promise to have been to give the land to one only of the plaintiffs and by omitting the clause which stated the marriage to have been made "partly in consid- eration of such promise." Upon the second hearing the court decreed in favor of one of the plaintiffs. This action of the court in permitting the amendment after hearing, was assigned among other things, as error on appeal to the Federal Supreme Court. That court in affirming the decree below said :*^ It would seem clear that the court of the original hearing was satisfied that the evidence made out of a case for relief but different from the case stated in the bill, and as the pleadings must correspond with the evidence it was necessary either to dismiss the bill without prejudice, or to give the leave to amend. The court adopted the latter alternative, doubtless with a view to save expense to the parties and because such a course could not by any possibility work any harm to the defendant; that to hold otherwise would deny to a court of equity the power to grant amendments in such a situation, no matter how manifest it was that the purposes of substantial jus- (56) Neale v. Neales, 9 Wall. 1. VARIOUS FORMS OF BILLS DEFINED. 71 tice required it, and would, if sanctioned, frequently em- barrass the court in its efforts to adjust the proper mode and measures of relief. To accomplish the object for which a court of equity was created, it has the power to adapt its proceedings to the exigency of each particular case, but this power would very often be ineffectual for the purpose, unless it also possessed the additional power, after a cause was heard and a case for relief made out, but not the case disclosed by the bill, to allow an alteration of the plead- ings on terms, that the party not in fault would have no reasonable ground to object to. When the amended bill has been filed the original and amended bills are for most purposes considered as one, and the amended bill relates back to the filing of the original ; and therefore if the matter set up in the amendment does not introduce a new cause of action the running of the statute of limitations is regarded as arrested as of the date of the filing of the original bill ; otherwise the statute may be pleaded as of the date when the amendment was filed. The effect of the filing of an amended bill, if the amend- ment be in matter of substance, is to vacate all defaults or orders pro confesso taken under the original bill, and to require new answers to be put in to the amended bill, unless the defendant elects to have his answer to the origi- nal bill stand as an answer to the amended bill and the plaintiff does not object. In the application for leave to amend, the proposed amendments should be set out and the amended bill should state so much of the original bill as is necessary to introduce the amendments and no more. The answer may be amended as well as the bill, but where the answer is under oath, as it generally is, the courts act with great caution in permitting any change in the statements of fact therein, other than matter by way of amplification of the defense already set up.*'' (57) Barton's Suit in Equity, 119; Walden v. Bodley, 14 Pet. (U. S.) 156. CHAPTEE V. PARTIES, PROCESS, APPEARANCE AND DEFAULT. § 21. Parties.— The parties to suits in equity were form- erly designated as complainants (or orators) and defend- ants (or respondents). In modern practice they are char- acterized in the same way as the parties to a law suit, viz., plaintiff and defendant. The rule as to parties, as stated by Story, was that all persons materially interested in the subject matter ought to be made parties, either as plaintiffs or defendants, how- ever numerous they may be, in order not only that com- plete justice may be done, but that multiplicity of suits may be prevented. It was further stated that all persons interested in the object of the suit ought to be made par- ties before it, and a third class whose interests in the sub- form principle, does not admit of being expounded as a test.^ Other writers have broadly stated the rule, thus : "Every person having any interest either in the sub- ject matter of the suit or in obtaining or resisting the object of the suit {the relief sought by the bill) should be made a party." The Federal Supreme Court has said that there are three classes of parties to suits in equity, viz., a class whose rela- tions to the suit are such that the court will take no ac- count of the omission to make them parties ; another class whose relations are such that the court before deciding the case will require them to be brought in if possible, and if not, will administer such relief as it may between the par- ties before it, and a third class whose interests in the sub- ject matter of the suit are so bound up with those of the other parties, that their legal presence as parties to the (1) Story Eq. PL, Sec. 76 (c). 72 PARTIES, PROCESS, APPEARANCE AND DEFAULT. 73 proceeding is an absolute necessity without wliich the court cannot proceed.' They are best classified as (a) Nommal or Formal par- ties; (b) Proper, hut not indispensable parties; (c) In- dispensable parties.^ The first class may be made parties or not at the option of the pleader; the second class should be made parties, unless they are beyond the reach of the court's process, or (in the federal courts) their presence as parties would operate to oust the court of jurisdiction ; and even in such cases their presence as parties will not be dispensed with unless their interests in the matter litigated are severable from those of the parties before the court, so that the court can decree without prejudice to them. The third class must be made parties or the court will refuse to adjudi- cate. Nominal parties are those, who having some interest in or title to the subject matter of the suit, will not be affected by a decree made therein, e. g., in a judgment creditor's bill to subject the debtor's equity of redemption in certain property to the payment of the judgment, the mortgagee need not be made a party, as the purpose of the proceeding is not to affect the mortgagee's title, but only the interest of the mortgagor, the judgment debtor; and in such a case if the mortgagee were made a party he would be regarded as merely a nominal party, and under Eule 40 need not appear or answer the bill. Of this character are persons with a naked legal title having no real interest in the controversy,* officers and agents of a corporation sued, no relief or discovery being (2) Barney v. Baltimore, 6 Wall. 280; Shields v. Barrow, 17 How. 130. (3) A number of authors have classified parties as (a) Nominal or Formal; (b) Proper or Necessary; (c) Indispensable; and the loose use of the words "necessary" and "indispensable" as definitive of distinct classes of parties has created enough confusion to justify the omission of the word "necessary" in the classification altogether. It certainly tends to clarity in the treatment of the subject. This carelessness of expression is repeated however in the present Eules 37 and 39. (4) Union Bank v. Stafford, 12 How. (U. S.) 341; Walden v. Skin- ner, 101 F. S. 577. 74 PARTIES, PROCESS, APPEARANCE AND DEFAULT. prayed against them,^ and trustees in suits by the cestui que trust as the real party in interest against third per- sons.® Proper but not imUspensable parties are those who may be indirectly affected by a decree, and who should be made parties if they can be reached, but whose interests are sep- arable from those of the parties before the court.'' Illustrations exist in proceedings brought by or against holders of a series of bonds, where by reason of the diver- sity of residence of the various holders, it is not possible in any court, Federal or otherwise, to obtain personal serv- ice of process upon all, and where a sufficient number of the class affected are brought in by personal service to en- able the court to obtain jurisdiction of the dispute, the court will decree with respect to those before it, saving the rights of absent parties. Other illustrations exist where one or more persons stand in a representative capacity to- wards others, e. g., trustees and their beneficiaries, execu- tors and administrators with respect to the heirs, devisees, legatees and next of kin. Where it is practicable to bring all interests before it, this will be done, but when imprac- ticable the court will content itself with disposing of the equities before it, leaving so far as it may, the rights of others unprejudiced.' Another illustration of proper but dispensable parties exists in cases where the parties are very numerous; — where the question involved in the case is one of interest to many persons constituting a class so numerous as to make it impracticable to bring them all before the court one or more may sue or defend for all, care being taken that the parties before the court fairly represent the rights and interests involved. In 1844 when differences arose among the membership of the Methodist Episcopal Church growing out of the slavery question, two separate Church organizations were created, one styling itself the Methodist Episcopal Church, North, and the other the Methodist Episcopal Church, (5) Doyle V. San Diego Land Co., 43 Fed. 349. (6) Eogers V. Tucker, 94 Mo. 346; Pac. K. Co. v. Ketehum, 101 U. S. 299. (7) Shields v. Barrow, 17 How. 130, 139. (8) Wood V. Dummer, 3 Mason (U. S.) 317. PARTIES, PROCESS, APPEARANCE AND DEFAULT. 75 South, neither was incorporated and the membership of each was very large; in a suit involving the division of the property of the parent organization it was held that a few members of one offspring body might sue a few mem- bers of the other, and that the court might properly treat the parties before it as representative of the entire congre- gations of the respective bodies.® It is an ancient rule of chancery that persons occupying a fiduciary relation, such as executors, administrators, trustees and others, might sue or be sued in their represen- tative capacity without joining their cestui que trustent; while the cestuis would be proper, they are dispensable parties. Further illustrations are found in suits to foreclose liens or mortgages wherein all prior and subsequent lienors are proper, but not indispensable parties; one entitled to an aliquot share of a fund in the hands of a trustee may have a decree for his share without making the owners of the other shares parties to the bill. They are proper but not indispensable parties.^" Indispensable parties are those without the presence of whom the court can make no valid decree. If A sought the specific performance of a contract made with B and C, it would be idle to file his bill against B alone, for the court could make no valid decree without the presence of both. Both B and C are indispensable parties. It is to be observed that the rule as to parties is to some extent one of convenience, subject only to the principle that any decree materially affecting private rights is in- operative as to the individual whose rights are affected un- less he has been brought before the court by personal serv- ice of process, if the decree is to be in personam; or by such other substituted service as may be prescribed, if the decree is to be in rem. If one having an interest in a pending litigation or rights therein deserving the court's protection has either pur- posely or inadvertently been omitted as a party, he may become a party by Petition of Intervention and order of court thereon. In a general way the practice as to parties, in the federal (9) Smith V. Swormstedt, 16 How. (U. S.) 288. (10) Encyc. PI. & Pr., vol. 15, p. 657. 76 PARTIES, PROCESS, APPEARANCE AND DEFAULT. courts, is regulated by the new rules and the foregoing mat- ter of this section may be summarized by quoting from them as follows : 37. Parties Generally — Intervention. Every action shall be persecuted in the name of the real party in interest, but an executor, administrator, guardian, trustee of an ex- press trust, a party with whom or in whose name a contract has been made for the benefit of another, or a part expressly authorized by statute, may sue in his own name without joining with him the party for whose benefit the action is brought. All persons having an in- terest in the subject of the action and in obtaining the relief de- manded may join as plaintiffs, and any person may be made a defend- ant who has or claims an interest adverse to the plaintiff. Any per- son may at any time be made a party if his presence is necessary or proper to a complete determination of the cause. Persons having a united interest must be joined on the same side as plaintiffs or de- fendants, but when any one refuses to join, he may for such reason be made a defendant. Any one claiming an interest in the litigation may at any time be permitted to assert his right by intervention, but the intervention shall be in subordination to, and in recognition of, the propriety of the main proceeding. 38. Representatives of Glass. When the question is one of common or general interest to many persons constituting a class so numerous as to make it impracticable to bring them all before the court, one or more may sue or defend for the whole. 39. Ahsence of Persons Who Would he Proper Parties. In all cases where it shall appear to the court that persons, who might otherwise be deemed proper parties to the suit, cannot be made parties by reason of their being out of the jurisdiction of the court, or incapable otherwise of being made parties, or because their joinder would oust the jurisdiction of the Court as to the parties before the court, and the court may, in its discretion, proceed in the cause with- out making such persons parties; and in such cases the decree shall be without prejudice to the rights of the absent parties. 40. Nominal Parties. Where no account, payment, conveyance, or other direct relief is sought against a party to the suit, not being an infant, the party, upon service of the subpcBna upon him, need not appear and answer the bill, unless the plaintiff specially requires him to do so by the prayer; but he may appear and answer at his option; and if he does PARTIES, PROCESS, APPEARANCE AND DEFAULT. 77 not appear and answer he shall he bound by all the proceedings in the cause. If the plaintifE shall require him to appear and answer he shall be entitled to the costs of all the proceedings against him, unless the court shall otherwise direct. 41. Suit io Execute Trusts of Will — Heir as Party. In suits to execute the trusts of a will, it shall not be necessary to make the heir at law a party; but the plaintiff shall be at liberty to make the heir at law a party where he desires to have the will estab- lished against him. 42. Joint and Several Demands. In all cases in which the plaintiff has a joint and several demand against several persons, either as principals or sureties, it shall not be necessary to bring before the court as parties to a suit concerning such demand all the persons li£\ble thereto ; but the plaintiff may proceed against one or more of the persons severally liable. 43. Defect of Parties — Resisting Oijeciion. Where the defendant shall by his answer suggest that the bill of complaint is defective for want of parties, the plaintiff may, within fourteen days after answer filed, set down the cause for argument as a motion upon that objection only; and where the plaintiff shall not so set down his cause, but shall proceed therewith to a hearing, not- withstanding an objection for want of parties taken by the answer, he shall not at the hearing of the cause, if the defendant's objection shall then be allowed, be entitled as of course to an order to amend his bill by adding parties ; but the court shall be at liberty to dismiss the bill, or to allow an amendment on such terms as justice may require. 44. Defect of Parties — Tardy Ohjeciion. If a defendant shall, at the hearing of a cause, object that a suit is defective for want of parties, not having by motion or answer taken the objection and therein specified by name or description the parties to whom the objection applies, the court shall be at liberty to make a decree saving the rights of the absent parties. 45. Death of Party— Beviv or. In the event of the death of either party the court may, in a proper case, upon motion, order the suit to be revived by the substitution of the proper parties. If the successors or representatives of the de- ceased party fail to make such application within a reasonable time, then any other party may, on motion, apply for such relief, and the court, upon any such motion may make the necessary orders for notice to the parties to be substituted and for the filing of such pleadings or amendments as may be necessary. 78 PAETIBS, PROCESS, APPEARANCE AND DEFATTI/T. § 22. Process Appearance and Default.— It has been said that "the right to be heard is a fundamental right of every litigant under every system of jurisprudence worthy of the name; and usually it is not denied even in the law- less codes of the most lawless savages; and in the right to be heard the first element is that of notice. The service of process, — in other words notice, — is the essential pre- requisite to the exercise of jurisdiction by any court. In- deed it may be said that strictly speaking, not a single step from the beginning to the end of a legal controversy can be taken without notice to the opposing party; although of necessity the notice in many instances is constructive rather than actual."^^ The process for subjecting the defendant in equity to the jurisdiction of the court is the writ of subpoena. It is is- sued only after the filing of the bill, and its object was originally to compel the appearance of the defendant. In former times if the defendant failed to appear an at- tachment was issued for his arrest ; if he absented himself or fled the country, a writ of sequestration issued to seize his personal property and the profits of his real estate, and detain the same subject to the order of the court. In mod- ern times no such coercion is resorted to, except where the bill calls for discovery from the defendant, and the dis- covery is necessary in order to enable the court to render a proper decree. No application for .the writ need be made to the court, the mere filing of the bill entitles the com- plainant to its issuance,^^ upon application to the clerk.''''* The writ of subpoena is called "mesne" or intermediate process to distinguish it from "final" process, the writ of execution. The original writ at an earlier date was the original or primary process, and any other writ or process issuing between the commencement of the action and the suing out of execution was termed "mesne process." As it stands to-day mesne would be understood in the sense of primary process, although such is not the meaning of the word. Personal service of process. — The subpoena is directed to the defendant, commanding him to appear personally in (11) Karrick v. "Wetmore, 25 App. D. 0. 422, affirmed in 205 U. S. 141. (12) Van Zile Eq. PI. & Pr., Sec. 74. (12a) Eule 12. PARTIES, PROCESS, APPEARANCE AND DEFAULT. 79 court, on a given day, under a penalty named, and answer the allegations of the bill, and is served by the marshal by the delivery of a copy of the subpoena to the defendant per- sonally, or by leaving a copy thereof at the dwelling house or usual place of abode of the defendant, with some adult person who is a member of or resident in the family." At the bottom of the subpoena is placed a memorandum that defendant is required to file his answer, or other de- fense, in the clerk's office on or before the twentieth day after service, excluding the day thereof, otherwise the bill may be taken pro confesso.^* The officer serving the subpoena must return it to the clerk's office, with his return entered thereon, showing whether the writ has been executed. The return must show the time, place and manner of service, or that the de- fendant is not to be found. Process is effective only within the jurisdiction of the court issuing it, and where a person residing in one state is induced by a party in interest, by fraud or false pretense to come into another, for the purpose of serving him with process, the service thus obtained is void, and will be va- cated.^* If the defendant be not served, the court can have no jurisdiction over his person, and any decree made requir ing the defendant to do any act or pay any money (in per sonam) not based upon personal service of process is void " le (13) Eule 13 (Appendix). Service of process upon a resident defendant by leaving a copy of the subpoena at his place of abode (when personal service cannot be had), was always regarded as valid service under the practice of the English Chancery Court in proceedings in personam as well as in rem. Daniel's Ch. PI. & Pr., p. 443. (14) Eule 13. (See Appendix.) (15) Toof V. Foley, 87 Iowa 8, and Fisher v. Munsey Trust Co., 43 W. L. E. 820. (16) Pennoyer v. Neff, 95 U. S. 629. While personal service is es- sential to a valid personal judgment against non-residents, it is not necessarily so with respect to resident citizens; each State has the authority to provide by law the means by which its own citizens may be brought before its courts, and the courts of other States may not disregard the means thus provided, so every judgment or decree obtained in a State against some of its citizens by virtue of a lawful though constructive service of process is just as obligatory upon such citizen in every other State as it is in the State whence it is taken. 80 PABTIBS, PHOCBSS, APPBABANOB AND DEFATJI/T. Constructive Service of Process. — In proceedings hav- ing for their object the establishment of some claim or lien against property (creditor's bills, mechanic's lien suits, etc.), or the determination of a legal status (di- vorce suits), proceedings in rem, so called; if personal service is not obtainable, constructive service, or service by publication, is permitted, and decrees made in this class of suits, based on constructive service, are as valid and enforceable as if based on personal service, it being only necessary that the res or thing sought to be affected by the decree, be within the jurisdiction (territorially and otherwise) of the court pronouncing the decree.^' This method of service is effected by the publication of a notice in one or more newspapers warning the defendant to appear within a fixed time, and that upon his failure to do so the cause will be proceeded with as in case of de- fault." Substituted Service. — ^Where a party is properly brought into court, he is there for all purposes, and so a defendant served with subpoena to the original bill need not be served again with subpoena upon the filing of an amended or sup- plemental bill, he is obliged to file his answer thereto with- out process for that purpose. A defendant filing a cross bill or other pleading of that nature, is required to serve process thereon, but where personal service cannot be had, he is permitted to serve it upon the attorney appearing in the cause for the party against whom the cross relief is prayed. This is known as substituted service. Nor is it destructive of the extra-territorial effect of a judgment based on constructive service that the defendant being a citizen of the State was temporarily absent therefrom. It is sufficient that he was at the time subject to the laws of the State. Freeman on Judgments, § 570. Settlemeier v. Sullivan, 97 TJ. S. 110. B. & O. E. E. Co. V. Hostetter, F. S. Adv. Ops., 1915, p. 475. Eiverside v. Menefee, 237 TJ. S. 189. (17) As to the situs of the matrimonial domicile to give jurisdic- tion in divorce cases, compare Atherton v. Atherton, 181 U. S. 455. Haddock v. Haddock, 201 U. S. 562. Thompson v. Thompson, 226 U. S. 551. (18) Tor the form of such an order, see Appendix. PARTIES, PROCESS, APPEARANCE AND DEFAULT. 81 Appearance.— The bill having been filed and the process served it becomes the duty of the defendant to appear and answer. Under the earlier system it was necessary for the defendant or his solicitor to file a writing with the clerk of the court requesting him to enter the defendant's appear- ance in the case. This is now optional, the advantage of doing so is that it gives the defendant more time in which to answer. If the defendant takes any part in the proceed- ings, such as filing au answer, moving to dismiss the bill or for a continuance, or otherwise shows an intention to con- test the case on the merits, he submits himself uncondi- tionally to the jurisdiction of the court, and there is no ne- cessity for the entry of a formal appearance. He may appear either in his own proper person or through counsel. He need not indeed wait for the service of the writ, but may enter his appearance at any time after the bill is filed. This is called "appearance gratis." The appearance of defendant by his solicitor is presumed to be properly authorized, but the presumption is not con- clusive, and the want of authority may be shown and de- fendant released. A general appearance waives all defects in the process or its service, but it does not cure a lack of jurisdiction of the court. -^^ The defendant may appear specially for the purpose of raising a question as to the validity of service, but such a right is lost if the defendant in the first instance appears generally or takes any part in the proceedings.^" Persons under disability, such as infants, idiots, luna- tics, etc., must appear by guardian or committee. If no guardian has been appointed, or the guardian is unfit to conduct the defense, a guardian ad litem, will be appointed by the court. The guardian being selected, he may appoint a solicitor who will enter appearance in the case.^^ Default in Appearance.— Upon default in appearance or filing an answer, the plaintiff is entitled to an interlocutory decree, in the nature of a judgment by default at law, called an order pro confesso. This is an order that the (19) Farrar v. IT. S., 3 Pet. (U. S.) 459. (20) Shipman Eq. PI., p. 17. (21) 1 Danl. Ch. PI. & Pr., 146. 6 82 PARTIES, iPROCESS, APPEARANCE AND DEFAULT. bill be taken and treated as if confessed or admitted by the defendant. If discovery is required, the complainant may compel an appearance on the part of the defendant, by means of a writ of attachment against his person, in order to secure the facts on which may be based a proper decree. In such a case the defendant is arrested and not discharged until he has purged himself of contempt, by filing the answer or otherwise complying with the orders of the court. If no discovery is required and the parties defendant are sui juris, the plaintiff, having taken his order pro oonfesso, becomes entitled, after a lapse of time prescribed by the rules to a final decree, and an order made to take a bill pro confesso not followed by a final decree, is of no effect.^* Where the allegations are in their natui^e so defective and vague that a precise decree cannot be made upon them, proof must necessarily be adduced. The decree cannot be based on anything not alleged in the bill. No decrees pro oonfesso can be taken against persons under disability, such as infants or idiots, as no admis- sions can be presumed by their failure to appear. The court will require proof of the allegations of the bUl in such cases. Neither will the non-appearance of the guardian ad litem be held to prejudice the infant's cause.**^ After an order pro oonfesso has been taken and entered, the defendant has thirty days given by the rules to apply to have the pro oonfesso vacated, and if this application is seasonably made it is grantable almost as of course, upon payment of the costs of the plaintiff up to that time, or such part as the court may deem reasonable. But after the time has elapsed the order pro oonfesso remaining in force, the court will then pass a final decree, adjudging for the plaintiff in accordance with the prayers of the bill.** To vacate an order pro confesso, the defendant proceeds by a petition or a motion accompanied by a sworn answer (22) Lockhart v. Horn, 3 Woods. 542. NOTE : The decree pro confesso is not a decree as of course, ac- cording to the prayers of the bill, nor merely what the plaintiff chooses to make it, but what the court determines, upon the statements of the bill, to be a proper decree upon the admitted facts. Thomson v. Wooster, 114 U. S. 104. (23) Stephens v. Van Buren, 1 Paige (N. T.) 479. (24) Eule 17. PARTIES, PROCESS, APPEARANCE AND DEFAULT. 83 offering excuse for allowing the default to be entered, and praying that the order pro confesso be set aside. Copies should be served on plaintiff's solicitor with notice of day fixed for the hearing. The court sometimes requires the defendant to exhibit along with his petition the sworn answer which he pro- poses to file, in order that the court may satisfy itself as to the nature and sufficiency of the answer prepared to be filed.'^^ If the bill is amended after decree pro confesso, such amendment has the effect of substituting a new bill, and operates of itself to vacate the pro confesso}^ (25) Wells V. Cruger, 5 Paige (N. Y.) 163. (26) Bank v. Pinch, 1 Barb. (N. Y.) Y5. CHAPTEE VI. VARIOUS FORMS OF DEFENSES DEFINED. § 23. Defenses — In General. — Prior to the promulgation of the new rules a defendant having appeared and obtained a copy of the bill might defend in one of four ways : a. By Demurrer. b. By Plea. c. By Answer. d. By Disclaimer. e. And where the defendant was entitled to affirmative relief in the same controversy, he might file a Cross Bill.^'' Defense hy Demurrer. a. The effect and purpose of the demurrer, was to attack the sufficiency in law of the allegations of the bill as en- titling the plaintiff to the relief or to the discovery prayed therein, and to relieve the defendant, if this mode of attack was successful, of the necessity of filing an answer and giving the discovery called for by the bill. If upon the face of the plaintiff's own pleading there appeared matter fatal to the rights claimed by him, it would be an idle waste of time and expense to prolong the litigation by filing an an- swer setting up his defense in detail, when a decree sus- taining the demurrer and dismissing the bill would end the matter. For instance, if in any bill it appeared by its own allegations, that the court wherein it was filed had no jurisdiction, or that the bill was multifarious, or there was a misjoinder or nonjoinder of parties, or the parties or some of them were not sui juris, or that the claim sued upon was barred by laches, or that the contract relied upon was within the statute of frauds and was not in writing, or that the contract was violative of some express statute or against public policy, or otherwise void or unenforce- able, it was the privilege of the defendant to do nothing more than express his willingness to abide the decision of (27) Van Zile Eq. PL & Pr., Sec. 107. 84 VAHIOUS FORMS OF DEFENSES DEFINED. 85 the court upon the weaknesses and defects contained in the plaintiff's own pleading, and this he did by demurring, as follows: Caption as in bill on p. 33 ante. Demurrer. The demurrer of Albert Simpson, William Eobertson, James Wilson and Richard Johnson to the bill of com- plaint of John Rand, the above-named plaintiff. These defendants by protestation, not confessing all or any of the matters and things in the plaintiff's bill of com- plaint contained to be true in such manner and form as the same is therein set forth and alleged, demur to said bill, and for cause of demurrer show : 1. It appears by the said bill, that the same is exhibited against the defendants for distinct matters and causes in several whereof as appears by the said bill certain of these defendants are not in any manner interested or concerned, and that the said bill is altogether multifarious. 2. That it appears by the said bill that the contract al- leged in said bill and of which the plaintiff seeks to have the benefit, was oral, and that the same was not reduced to writing and signed within the meaning of the statutes for the prevention of frauds and perjuries. 8. That it appears by the said bill that the plaintiff seeks to vary and supplement the terms of a written contract by extrinsic evidence resting in parole. 4. That the bill seeks the reformation of a contract and specific performance thereof as reformed. 5. That the bill does not state such a case as entitles the plaintiff to any relief against these defendants, or any of them, because he has a plain, adequate and complete rem- edy at law. Wherefore, and for other good causes of demurrer ap pearing in said bill, the defendants do demur thereto and humbly demand the judgment of the court whether they shall be compelled to make any further or other answer to said bill, and pray to be hence dismissed with their costs and charges in this behalf most wrongfully sustained. RICHARD ROE, Attorney for Albert Simpson, William Robertson, James Wilson and Richard Johnson. 86 VABIOUS FOEMS OF DEFENSES DEFINED. I hereby certify that in my opinion the foregoing de- murrer is well founded in point of law and proper to be filed. RICHARD ROE, Attorney. District of Columbia, ss : Personally appeared before me Albert Simpson, William Robertson and James Wilson and made oath that the fore- going demurrer is not interposed for delay. ALBERT SIMPSON. WILLIAM ROBERTSON. JAMES WILSON. Subscribed and sworn to before me this 3d January, 1914. DANIEL HALL, Notary Public."* This defense under the modern rules would take the form of a motion to dismiss, as follows : Caption as in bill on p. 32 ante. Motion to Dismiss. Come now the defendants, Albert Simpson, William Robertson, James Wilson and Richard Johnson, and move the court to dismiss the bill of complaint filed herein on the following grounds : ( Here insert the grounds specified in the demurrer on page 85 ante.) RICHARD ROE, Attorney for Albert Simpson, William Robertson, James Wilson and Richard Johnson. The motion to dismiss contains no protestation clause and does not conclude with any general assignment of other causes of dismissal, nor does it demand the judgment of the court as to whether the defendants shall be com- (28) Under the old chancery practice the demurrer need only be signed by counsel, but by the rules of practice in some courts a cer- tificate of counsel and oath of the defendants is required, as shown above. VARIOUS FORMS OF DEFENSES DEFINED. 87 pelled to make any further answer as did the old form of demurrer. The new rules do not seem to require the oath stating that the motion is not filed for the purpose of delay. But rule 24 provides that every pleading shall be signed by one or more solicitors of record and that such sig-nature shall be considered as a certificate that it is not interposed for delay. Defense by Plea. b. If, however, the bill were regular on its face, prop- erly setting forth a case remediable in equity, the defend- ant might still escape filing an answer and giving discov- ery, by filing a plea, instead of an answer. But the plea could only be used under certain circumstances. It was proper to be filed only where the allegation and proof by the defendant of some one main fact would destroy the en- tire case made by the bill. For instance, if the truth were (though the bill did not show it, and if it did it would be deumrrable) that the court had no jurisdiction, or that the subject matter of the suit had been released, or barred by laches or limitations, or any other single defense which would terminate the suit, the defendant might set it up by way of a plea, leaving much matter contained in the bill unanswered and in no wise pleaded to. The following plea is in proper form : Caption as in bill on p. 33 ante. Plea of the Defendant Albert Simpson.^^ This defendant, by protestation, not confessing or ac- knowledging the matters and things in the bill of complaint filed herein to be true in manner and form as therein set forth, for plea to the whole of said bill, says that he was at the several times mentioned in said bill of complaint, and still is, lawfully married to Mary Simpson, and that said Mary Simpson asserts and claims an inchoate right of dower in the land mentioned in said bill of complaint, and refuses to join in any deed conveying said property, and he pleads the same in bar to the whole of said bill, and prays the judgment of the court whether he shall be com- pelled to make further answer to the said bill, and prays to (29) The new rules abolish this form of defense. 88 VABIOUS FOEMS OF DEFENSES DEFINED. be hence dismissed with his costs in this behalf most wrong- fully sustained. EICHAED EOE, Attorney for Albert Simpson.^" Defense iy Answer. c. If the defendant were willing to meet all the issues tendered by the bill, to admit or deny or confess and avoid each allegation thereof, and give the discovery called for, instead of demurring or pleading to the bill, he would file an answer in the first instance, and, of course, if there were no defects in the bill rendering it demurrable, and no sin- gle defense upon which he could predicate a plea, he was obliged to do so. The answer has ever been the main de- fense in chancery — the form of defense most desired by the plaintiff, and most avoided, where possible, by the defend- ant. Upon the overruling of a demurrer or plea upon argu- ment, the defendant was still required to answer. The order of pleading these defenses was first the demurrer, then the plea and then the answer, and while it was per- missible in one pleading to join a demurrer, plea and an- swer, each form of defense must have been directed to a different part of the bill. If a demurrer filed to a bill be un- disposed of by the court at the time a plea of the same de- fendant to the same part of the bill was filed, the plea would of itself overrule the demurrer, and an answer under the same circumstances would overrule both plea and de- murrer.'^ (30) The rules required the plea to be sworn to and accompanied by a certificate of counsel as in the case of a demurrer. Central Nat. Bank v. Conn. Mutual L. Ins. Co., 104 U. S. 54. NOTE : The above plea would be overruled on argument because there is no dower in a joint tenancy; otherwise the facts stated therein would constitute a good defense. Ann. Cas., vol. 14, p. 671, and Ann. Cas., 1914 A, p. 207. (31) Grant v. Phoenix Life Ins. Co., 121 U. S. 105. Droop V. Ridenour, 9 App. D. C. 95. "It is a well-settled rule that a less favored mode of defense will yield to the more favored, i. e., a plea to an answer and a demurrer to a plea or an answer. When more than one mode of defense is resorted to, no two must overlap, as the least overlapping is fatal to the less favored defenses." Van Zile Eq. PI. & Pr., Sec. 133, and cases cited. VABIOUS FORMS OF DEFENSES DEFINED. 89 The following is a form of answer : r Caption as in bill on p. 33 ante. The Joint and Several Answers of the Defendants Wil- liam Robertson and James Wilson. These defendants, for answer to so much of the bill as they are advised is material for them to make answer unto, say as follows : 1. They admit the allegations of paragraph 1 of said bill. 2. They admit the ownership of the property described in the bill to be as therein alleged, but aver on information and belief that one Mary Simpson, alleging herself to be the wife of the defendant, Albert Simpson, claims an in- choate dower right in said property, which she refuses to release. They admit that they entered into a contract for the sale of said property to the plaintiff for the sum of 110,000, and that the plaintiff has paid on account of the purchase money the sum of |500. They admit that at the time the agreement between the parties was reached and the $500 paid, no written contract was prepared or exe- cuted, but they deny that during any of their conversations or negotiations was any mention made by any of the par- ties of the subject of liens or incumbrances, nor did these defendants or either of them undertake or promise to con- vey to the plaintiff a title free of all liens and incum- brances, nor to convey to the plaintiff a good unincumbered and marketable title to said lot, and these defendants aver the fact to be that the written contract prepared by the defendant's attorney and set forth in paragraph 2 of said bill, embraces precisely, distinctly and inclusively all the terms of the oral agreement between the parties reached at the time of the payment of the $500 aforesaid, and these de- fendants deny that the agreement as drawn and executed was drawn in the form complained of either through mis- take, inadvertence or fraud. These defendants admit that said property is incumbered by tax liens, as alleged in the bill, but aver that they were ignorant of it at the time of making the contract, and have but recently discovered it, and they aver that had they been aware of the existence of said liens, they would have insist- ed upon a provision in the contract requiring the purchaser 90 VAKIOUS FORMS OF DEFENSES DEFINED. to discharge them in addition to paying the $10,000 agreed to be paid, which latter sum they aver is less than the fair market value of said property. 3. These defendants admit on information and belief the allegations of paragraph 3. 4. These defendants admit the allegations of para- graph 4. 5. These defendants have no personal knowledge of the matters and things alleged in paragraph 5, and can, there- fore, neither admit nor deny the same, and if they be ma- terial, demand strict proof thereof. 6. These defendants admit the allegations of para- graph 6. And now for answer to the several interrogatories an- nexed to said bill and by these defendants required to be answered, say: 1. That they did not agree, orally or otherwise, to sell the property free of all liens and incumbrances. 2. That the plaintiff did deposit |500 on account of the purchase price of said lot. 3. In answer to interrogatory numbered 3 these defend- ants say yes. 4. In answer to interrogatory numbered 4 these defend- ants say no. 5. In answer to interrogatory numbered 5 these defend- ants say yes. Further answering said bill and by way of cross bill thereto, these defendants aver that they have offered to convey their title to the property to the plaintiff in exact accordance with the language and meaning of the contract executed by the plaintiff, and have demanded from him the balance of the purchase money and he has refused to comply, and they are advised that they are entitled to have specific performance of said contract as executed and they pray the same benefit hereof as if they had filed a cross bill herein. WILLIAM EOBERTSON. JAMES WILSON. RICHARD ROE, Attorney. District of Columbia, ss : William Robertson and James Wilson make oath that VAEIOUS POEMS OF DEFENSES DEFINED. 91 the statements contained in the foregoing answer, made as of their own knowledge, are true, and those made on in- formation they believe to be true. WILLIAM EOBERTSON. JAMES WILSON. Sworn to and subscribed before me this 24th day of Feb- ruary, 1914. DANIEL HALL, Notary Public. An answer under the old practice might set up as many defenses as the defendant might have, provided they were not inconsistent with one another.'^ Defense hy Disclaimer. d. If the defendant having no interest at all in the sub- ject matter of the suit, or only a nominal one, and no ob- jection to the granting of the relief prayed by the bill, de- sired to be relieved from any further connection with the matter and to be absolved from any costs that might be im- posed, he would file a disclaimer, a form of which is found in the Appendix. e. As a general rule the successful defendant in chan- cery was entitled to no more at the hands of the court than a decree dismissing the bill and allowing him his costs, but in many cases the mere dismissal of the bill was not suf- ficient; for instance, where the owner of an upper mill privilege filed a bill against the owner of a lower mill privi- lege to restrain him from maintaining his dam at too great a height thereby backing the water up on the plaintiff and preventing the operation of his mill, and the defendant proved the fact to be that the plaintiff was himself ob- structing the use of the defendant's mill, the defendant was held entitled not merely to a decree dismissing the bill, but to a decree restricting the plaintiff's use of the stream,^' but to entitle the defendant to such afSrmative relief it was necessary for him to file a cross 'bill. Merely to set up the facts by way of answer was not sufl&cient. (32) Hopper v. Hopper, 11 Paige (N. Y.) 46. New rule 30 provides that "the answer may state as many defenses, in the alternative, regardless of consistency, as the defendant deems essential to his defense." (33) Van Zile Eq. PI. & Pr., Sec. 212. 92 VARIOUS FOEMS OF DEFENSES DEFINED. By the 29th of the new rules demurrers and pleas are abolished, and by the 30th rule matter of counter claim need not be set up by cross bill, but may be availed of in the answer. Defenses formerly made by demurrer may be made by motion, or relied upon in the answer, and de- fenses formerly made by plea, either in bar or in abate- ment, are required to be made by answer. Where the mat- ter of a plea is set up in the answer, the court in its discre- tion may order a separate and preliminary hearing upon the matter thus set up in the same manner as if the matter had been set up by plea. In view of the fact that matter of demurrer may now be availed of by motion, and matter of plea by answer (with a preliminary hearing thereon in the discretion of the court before trial on the whole merits), it is not believed that Eule 29 has accomplished much more than the aboli- tion of two names, "demurrer" and "plea." The substan- tial right of a defendant to object to defects in the bill, or to rely upon a single defense, or shield himself from giving any discovery to which the plaintiff would not have been entitled under the old rules, is not impaired. As a knowledge of the functions of the demurrer is es- sential to the use of the motion which replaces it, and as matter of defense formerly relied upon by way of plea may still be availed of in the answer, it is deemed proper to treat them separately and under the old names. §24. The Demurrer— Now Known as the Motion to Dis- miss. — ^A demurrer is a pleading which rests the defense upon the complainant's bill and asks the court for judg- ment as to whether any further defense shall be required. It is derived from the Latin word demorari and signifies to abide, and so when the defendant interposes a demurrer he is said to abide in the law, demoratur in lege; that is to say, he will go no further until the court has decided whether the other party has shown sufficient matter in point of law to maintain his suit.^* It admits for the sake of the argument, the matters of (34) Van Zile Eq. PI. & Pr., Sec. 108. Story Eq. PL, Sec. 441. Coopers Eq. PL, 110. VARIOUS FORMS OF DEFENSES DEFINED. 93 fact stated in the bill to be true, and asserts that they are not sufficient to require the defendant to answer.^* This mode of defense now known as the Motion to Dis- miss, may be used only when the bill is defective on its face. It may be directed to the whole or to any distinct part,^^ and is similar to the demurrer at common law, except that in equity it was available only as a defense to the various forms of the bill, including the cross bill, and was not avail- able as an objection to the answer or plea. Objections to the sufficiency of the answer, e. g., if insufficient in point of discovery, were raised by exceptions filed thereto, ob- jections to the plea were raised by setting the plea down for argument. Questions of law only were raised by demurrer, and of course a violation of any of the rules of eqidty pleading would be ground for demurrer, where the fault was dis- closed upon the face of the bill.^' Demurrers were either general or special. The general demurrer assigned ordinarily no cause but want of equity, and raised only the question whether there was any equity in the bill. The special demurrer suggested particular de- fects of form or violations of the rules of pleading or prac- tice as grounds for objection, and specified the grounds upon which it was presented, and the distinct part of the bill to which directed.^' Its purpose being to raise a question of law only, it was defective and subject to be stricken out if it contained any allegation of fact, matters of fact being properly set up only by way of plea or answer.'' While the demurrer is said to admit the allegations of the bill, it does so only for the purposes of the argument thereon before the court, and even on such argument it (35) Mitf. & Tyler Eq. PL, 204. (36) Phelps V. McDonald, 99 U. S. 298. Williams v. Gardiner, 2 Mackey D. C. 93. (37) Shipman Eq. PI., 361. (38) Under the general demurrer it was customary to assign hut one ground of objection, to wit, "that the plaintiff had stated no case entitling him to any relief or discovery," but under this general as- signment other grounds might be relied upon at the argument, and this was called demurring "ore tenus." (39) A demurrer containing this kind of defect was called a "speaJcing demurrer.'' Daniell Ch. PL & Pr., 657. 94 VARIOUS FOKMS OP DEFENSES DEFINED. admits only sucli facts as are well pleaded. Mere conclu- sions of law contained in a bill are not admitted. There- fore allegations as to the legal effect of a devise or the con- struction of a deed or contract or a statute, or a mere gen- eral allegation of fraud unaccompanied by a statement of the facts relied upon to make out the fraud, would not be admitted by the demurrer.*" To attempt to enumerate the defenses that may be relied upon by way of general demurrer or motion to dismiss would be to catalogue all the defenses in equity, a task more properly performed in a work on equity jurisprudence than one of this character. It is sufficient to say that any matter appearing on the face of the bill which under the principles of equity jurisprudence prevent the granting of the relief or discovery prayed in the bill, may be availed of in defense by way of motion to dismiss; and any such mat- ter not appearing on the face of the bill, but in fact exist- ing, may be set up by answer only. Upon the filing of the demurrer or motion to dismiss either party might upon short notice to the other side (the new rules provide for five days' notice), set it down for argument, and the court, after a hearing, would pronounce its order or decree, either sustaining it, and dismissing the bill, or sustavrdng it with lecuve to the plaintiff to amend his bill, or overruling it and requiring the defendant to answer within a specified number of days.* The following is a form of such an order : Caption as in bill on p. 33 ante. Order Overruling Demurrers. This cause coming on to be heard upon the joint demur- rer of the defendants, Albert Simpson, William Eobertson, James Wilson and Richard Johnson, and having been ar- gued and considered, it is by the court this 15th day of February, 1914, ordered that the said demurrer be, and the same is hereby, overruled with leave to the said de- fendants to plead or answer within ten days from the date (40) Dillon T. Barnard, 31 Wall. 430. Donaldson v. Wright, 7 App. D. C. 45. Smith V. Eeynolds, 166 IT. S. 117. Van Zile Eq. PI. & Pr., Sec. 110. *NoTE. — ^It is within the sound discretion of the court upon argu- ment of the motion to dismiss, to decline to pass upon the questions VARIOUS FORMS OF DEFENSES DEFINED. 95 hereof, and it is further ordered that the temporary re- straining order heretofore passed herein be continued to the final hearing. WILLIAM JAY, Justice. This order under the new rules would take the follow- ing form: Caption as in bill on p. 33 ante. Order Overruling Motion to Dismiss. This cause coming on to be heard upon the joint motion of the defendants, Albert, Simpson, William Robertson, James Wilson and Richard Johnson, and having been ar- gued and considered, it is by the court this 15th day of February, 1914, ordered that the said motion be, and the same is hereby overruled, with leave to the said defendants to answer within ten days from the date hereof, and it is further ordered that the temporary restraining order here- tofore passed herein be continued to the final hearing. WILLIAM JAY, Justice. If the defendant having leave to plead or answer after demurrer overruled, failed to do so within the prescribed time, the plaintiff might take the bill pro confesso. Thus: Caption as in bill on p. 33 ante. Order Pro Confesso. It appearing to the court that the defendant, Richard Johnson, failed to file his answer within the time pre- scribed by the order passed herein on the 15th day of February, 1914, now on motion of plaintiff, by his attorney, it is by the court this 28th day of February, 1914, ordered that the bill be and the same hereby is taken as confessed as against the said defendant, Richard Johnson. WILLIAM JAY, Justice.*^ raised leaving them for consideration at the final hearing, and re- quiring the defendant in the meantime to file his answer. Wright v. Barnard, 233 Fed. 329. (41) All orders and decrees in equity are prepared by counsel and submitted to the court for its signature and are then enrolled by the 96 VARIOUS FORMS OF DEFENSES DEFINED. As a general rule it may be said that defects merely formal and technical in character, such as would ordinarily be raised by the special demurrer, are waived by a failure to demur; objections of misjoinder and matters of abate- ment may be taken in the plea or answer, but it is too late to urge them for the first time at the hearing,** but defects of substance may be taken advantage of at any time. The fundamental requirement of good pleading, that the initial pleading state a cause of action and that the court have jurisdiction, is founded upon rules of public policy as well as on canons of procedure, and it has been well said that "the general demurrer is never waived." That which was void in the beginning can not be validated by lapse of time or consent or waiver.*' The objection that the remedy is at law, cannot be waived, though there is obiter in some cases indicating the contrary.** The new rules have abolished the use of the name "de- murrer" in equity, substituting therefor the motion to dis- miss, and questions as to the effect of this change have been clerk in the minutes of the court and become part of the record in the cause. On the law side of the court, its orders and judgments are pronounced orally by the court and entered at once by the clerk in the minutes without the preparation of any written document and signature thereto by the judge. (43) Conard v. Atlantic Ins. Co., 1 Peters 386. Spencer v. Lapsley, 20 How. 364. Story V. Livingston, 13 Pet. 359. It seems, however, that the defect of multifariousness, though one of form, may be raised by the court of its own motion at any stage of the proceeding. Daniell Oh. PI. &. Ft., p. 346. (43) Galveston v. Gonzales, 151 IT. S. 496. Southern P. Co. v. Denton, 146 U. S. 202. See an interesting discussion of the maxims "quod ah initio non valet in contractu temporis non convalescit" and "consensibs tollit errorem," showing that the statutes of Amendments and Jeofails are but administrative of the latter maxim, and that when their provi- sions are sought to be applied to the former maxim they are generally held either void or inappliable. The Law Eestated — ^Hughes, p. 228, and cases. (44) Wylie v. Goxe, 15 How. 416. HoUins V. Brierfield, 150 U. S. 3Tl. Insley v. U. S., 150 U. S. 512. VARIOUS FORMS OF DEFENSES DEFINED. 97 several times before the courts,*^ and it has been held that the motion, like the demurrer, reaches only matters appear- ing upon the face of the bill, and therefore the proper way to set up the fact of "another suit pending" is by answer and not by motion;*® that the lack of an indispensable party apparent on the face of the bill, may be raised by mo- tion to dismiss ;*'' that defendant's defense to the granting of a preliminary injunction may take the form of a motion to dismiss;** that the motion, like the demurrer, admits for the purpose of the motion, everything alleged in the bill that is well pleaded ;*® and that the motion to dismiss raises only those questions that formerly might be raised by demurrer, therefore a bill not subject to demurrer under the old rules is not vulnerable to attack by motion under the new rules and the defendant must defend by answer.*" § 25. Pleas. — A plea in equity is defined to be "a plead- ing by which the defendant meets the case made by the bill of complaint by alleging some one fact, or several facts, which taken together, make out the one fact, and demand- ing the judgment of the court whether the special matter urged is not a complete defense to the action commenced by the bill."" "The principle of a defense by plea is that the defendant avers some one matter of avoidance, or denies some one al- legation of the bill, and contends that assuming the truth of all the allegations in the bill except that which is the (45) Adler Goldman Commission Co. v. Williams et al., 211 Fed. 530. Tyler v. Ludlow, 212 Fed. 156. Alexander r. Fidelity Trust Co., 214 Fed. 495. Hyams y. Old Dominion, 204 Fed. 681. Wilson V. Amer. Ice Co., 206 Fed. Y36. Southwestern Surety Co. v. Wells, 217 Fed. 294. Boyd et al. v. IST. Y. & H. E. Co., 220 Fed. 174. Destructor Co. v. City of Atlanta, 219 Fed. 996. Ealston Steel Car Co. v. Nat. Dump Car Co., 222 Fed. 590. (46) Adler Goldman Com. Co. v. Williams, 211 Fed. 530. (47) Hyams v. Old Dominion Co., 204 Fed. 681. (48) Southwestern Surety Co. v. Wells, 217 Fed. 294. (49) Destructor Co. v. City of Atlanta, 219 Fed. 996. (50) Ealston Steel Car Co. v. Nat. Dump Car Co., 222 Fed. 590. (51) Van Zile Eq. PI. & Pr., Sec. 133. 7 98 VARIOUS FOEMS OF DEFENSES DEFINED. subject of denial (in the plea) there is sufficient to defeat the plaintiff's claim."" It is in the nature of "a special answer," showing or rely- ing upon one defense.** More than one defense may not be set up by plea, for if two matters of defense may be thus offered, the same rea- son will justify any number, which would defeat the ends sought by the use of the plea, and intrench upon the of- fice of the more commodious form of defense, the answer. The use of the plea instead of the answer was to save time, expense and vexation. If one point will put an end to the whole case, it is important to the administration of justice that it should be pleaded; but if many matters are to be stated, the answer is the proper form in which to do it.^* While more than one defense was not permitted, this rule was not violated by the averment of several separate facts if they conduced to a single point of defense. Thus to a bill for an accounting, a plea of an "account stated" would alone be sufficient to bar the relief ( as the remedy for the recovery of the balance agreed upon would be at law), but the plea of the "account stated" would not be objectionable because it also averred that the defendant had discharged the balance found due on the statement of the account and held the plaintiff's release therefor; so a plea of two dif- ferent statutes of limitation is not double (21 Jac, 1, and 9 Geo. IV) for they are considered as jointly making but one law.®* Pleas in equity, as at law, were in abatement (to the jur- isdiction; to the parties, non- joinder or misjoinder), or in iar (by matter of statute; matter of record; matter in pais) ; and according to the character of their averments were classified as afirmatime or pure pleas, negative pleas, and anomalous pleas. The affirmative or pure plea was analogous to the plea of confession and avoidance at law ; it admitted the allega- tions of the bill and set up new affirmative matter to avoid it. The negative plea was based upon the denial of some (52) Adams Eq., p. 336. Van Zile Eq. PI. & Pr., Sec. 133. (53) Story Eq. PI., Sec. 649. (54) Van Zile Eq. PI. & Pr., Sec. 134. (55) Mitford's and Tyler's Eq. PI. & Pr., p. 384. VAEIOTJS FOEMS OF DEFENSES DEFINED. 99 single salient fact in the bill upon whicli tlie plaintiff's case rested. The anomalous plea was a combination of both, confession and avoidance as to some allegation of the bill and a denial of some other allegation ; as for example, where the plaintiff in his bill anticipates that the defendant will set up a release, and alleges in his bill that the release was obtained by fraud. In such case the defendant pleads affirmatively the release, and denies the fraud charged in obtaining it. The term anomalous was applicable to such a plea, be- cause it does not tender an independent issue, but sets up anew the impeached defense, with averments in denial of the impeaching equity.^® The use of such a plea may be illustrated by cases where- in the plaintiff in his bill has charged matter to avoid the particular defense he expects the defendant to rely upon, e. g., the executor of a deceased partner sues the surviving member of the partnership for an accounting of the part- nership affairs, and charges in his bill "'.hat the defendant pretends that he holds a release of all claim, executed and delivered by the testator in his lifetime, and further avers that if any such release was executed, it was obtained by the defendant by means of fraud and false representations practiced upon the testator ; or, in a bill to impeach a de- cree for fraud, the plaintiff may aver that the defendant in bar of the relief claimed by the bill will rely upon the decree sought to be impeached and the bill will then charge the matter of fraud in obtaining it, for the purpose of avoiding its effect; or in a bill against a purchaser the plaintiff may aver that the defendant pretends that he bought without notice and for value, and then further aver that the defendant in fact had notice. In each of these cases the plea of the defendant would have this anomalous character, — in the first case the defendant would set up the release affirmatively and deny the fraud in obtaining it ; in the second case he would set up the decree affirmatively and deny the fraud in obtaining it ; in the third case, he would set up his deed or contract of purchase, and the payment of a valuable consideration, and deny the notice charged (56) Adams Eq., p. 338. Van Zile Eq. PI. & Pr., Sec. 139. 100 VARIOUS FORMS OF DEFENSES DEFINED. in avoidance of it.^' But in none of these cases does the defendant completely escape giving discovery; he does so only partially. He was obliged to file with such a plea, an answer in support thereof, wherein he was required to state fully the circumstances under which the release was ob- tained, or the decree rendered, or the purchase entered into. The advantage then of defending by plea instead of answer under such circumstances was that in the case first put, the defendant escaped the necessity of discovery as to the affairs of the partnership business, giving discovery only as to the charge of fraud in obtaining the release ; in the second case he escapes the necessity of going into the merits of the controversy which terminated in the decree sought to be impeached, and gives discovery only as to the allegations of fraud concerning the rendition of the decree ; in the third case, he escapes the necessity of making any ad- missions or producing any documents to support the plain- tiff's title (leaving the plaintiff to prove it), and gives dis- covery only as to the circumstances charged for the pur- pose of affecting him vidth notice. There was distinct merit in this form of defense, in that it tended to the production of a single and material issue of law or fact. In the partnership case, why try the question of partnership vel non, the validity of the will and the regu- larity of the letters testamentary (all of which might be put in issue by an answer), if the release were valid? In the suit to impeach the decree, it were futile to inquire into the merits, if the allegations of fraud be untrue, and it would be equally useless to require proof of the title of the plaintiff in the third case put, if the defendant were in fact a bona fide purchaser for value without notice; and what is said here with respect to the anomalous plea ap- plies of course with equal force to the pure plea and the negative plea. Upon the filing of a plea the plaintiff might pursue either of three courses. He might attack its legal sufficiency, by setting it down for argument, in all respects the equivalent of demurring to it f^ or he might deny its truth by filing a (57) Daniell's Oh. PI. & Pr., 679. Mitford's & Tyler's PL & Pr., 331. (58) The demurrer in equity would lie only to the various forms of hills. The legal sufficiency of a plea was determined by the court upon VARIOUS FORMS OF DEFENSES DEFINED. 10\ replication to it, which was simply a general denial;^® or he might, if the plea set up new and affirmative matter, suf- ficient on its face to bar the relief prayed, amend his bill so as to charge matter to overcome the affirmative defense.®" Upon the hearing of the argument as to the legal suf- ficiency of the plea, the court might make one of four orders : 1. That the plea stand disallowed or overruled. 2. That the plea stand allowed or sustained. 3. That the benefit of the plea be saved to the final hearing. 4. That the plea stand for an answer. 1. Upon the overruling of a plea after argument as to its sufficiency the defendant was entitled to answer, and if he failed to do so within the time prescribed, the plaintiff was entitled to an order pro confesso. 2. Where the plea was sustained upon argument the bill was dismissed, unless leave were obtained to amend it. 3. Sometimes upon the argument of the sufficiency of a plea, it was necessary for the court in order that no injus- tice be done to either party, to take a middle course in dis- posing of the plea, i. e., neither to sustain it nor to over- rule it, but to save the benefit thereof to the defendant at the hearing after proofs taken.®^ The effect of such an order was to permit the plaintiff to file a replication to the plea, and go into the proof of his an order by the plaintifi to the clerk to set the cause down for argu- ment of the plea. Upon the argument the same questions would be presented as if the plea had been demurred to, viz, that assuming the facts alleged in the plea to be true, they did not in law constitute a defense to the bill. (59) The special replication in equity was abolished at a very early day. (60) E. g., Bl plea of release to a bill for an accounting, plaintiff amends his bill so as to charge that the release was obtained by fraud, defendant again pleads the release but must also answer in support of his plea and deny the fraud. Upon a replication to this plea the issue would be as to the fraud only. (61) Thus in Heartt v. Corning, 3 Paige 572, a plea of settled part- nership account was held to be well pleaded, but as facts might be disclosed in evidence upon proofs taken justifying an order to sur- charge and falsify, the order made upon argument of the plea was that the benefit of it be saved to the final hearing. To have ordered that the plea stand allowed or sustained would have made it a con- clusive bar. Daniell's Ch. PI. & Pr., Vol. 1, p. 699, n. 5. 102 VARIOUS FORMS OF DEFENSES DEFINED. case without thereby admitting that the facts alleged in the plea if proven constituted a legal defense.*^ Its effect, so far as the defendant was concerned, was to protect him from giving discovery as to so much of the bill as was covered by the plea.®* In brief the effect of such an order was to make the legal effect of the matter pleaded a trial question instead of a question of pleading, without disturbing either the plain- tiff's right to urge the legal insufficiency of the matter con- tained in the plea or the right of the defendant to the pro- tection against discovery afforded by his plea. 4. Where, upon the argument of a plea, the court was satisfied that the matter offered by way of plea might be a defense or part of a defense, but that it was informally pleaded; or that the answer in support of it (in cases where an answer in support was required), did not sufficiently support it ; instead of overruling it, the court might order that the plea stand for an answer, with liberty to the plain- tiff to except to it as such on the ground of insufficient dis- covery, but this right to except was often qualified so as to protect the defendant from any particular discovery which he ought not, under the facts pleaded, be required to make.^* The filing of a replication to a plea raised an issue of fact only, to be determined by the preponderance of the evi- dence. Prior to the new rules®* the testimony of the parties and their witnesses in equity was not adduced in open (62) Prior to 1822 the effect of filing a replication to a plea was to leave nothing at issue except the truth of the plea. A plaintiff after putting the defendant to the trouble and expense of proving the truth of his plea was not permitted to contend that the facts proven did not constitute a defense to his bill. A repleader (unless a bill of review for errors of law may be regarded as such) seems to have been un- known to chaiieery practice, and so even though the issue joined on the plea were an immaterial issue, if it were found for the defendant he was entitled to a dismissal of the bill. — ^Hughes v. Blake, 6 Wheat. 453, decided in 1821. In 1822 the Supreme Court of the United States promulgated new rules by one of which (Eule 19) it was provided "the plaintiff may set down the demurrer or plea to be argued, or he may take issue on the plea. If upon an issue, the facts stated in the plea be determined for the defendant, they shall avail him as far as in law and equity they ought to avail him." (63) Daniell's Ch. PL & Pr., Vol. 1, p. 699. (64) Daniell's Ch. PI. & Pr., Vol. 1, p. YOO. (65) Appendix, Rule 46. VARIOUS FORMS OF DEFENSES DEFINED. 103 court as in the trial of actions at law but was taten out- side of court before a master or examiner in chancery in the form of depositions, which were filed in the cause and read at the hearing. If the issue thus raised by a hearing on the bill, plea, replication and testimony were determined in favor of the defendant, he was entitled to have the bill dis- missed under the ancient practice; but since the rules of the Federal Supreme Court, adopted in 1822, it was re- garded as a defense to the relief prayed in the bill only so far as it did in law and equity, as well as in fact, constitute a defense. In other words, if the facts pleaded were imma- terial or insufficient in law, proof of them would not de- prive the plaintiff of relief, and the right of the plaintiff to urge the legal insufficiency of the facts as proven was not waived by joining issue on the plea.®® If the issue thus raised was determined in favor of the plaintiff he was enti- tled to a decree in accordance with the prayers of his bill, and if in order to enable the court to make a proper decree a discovery from the defendant was necessary, the latter could be compelled to answer and give discovery. After pleading a false plea, and the same being found false after proof taken, it was not the privilege of the defendant to answer over, but the right of the plamtiff to exact it if he needed discovery. A plea in equity always suggested a fact, and that fact was generally extraneous to the bill ; and the fact so sug- gested, in order to constitute a good plea, must have been true and sufficient in law to bar the relief sought by the complainant. If the plea was found to be false the defend- ant was not entitled to answer over.*'' (66) See note 12, ante 120. Farley v. Kittson, 120 U. S. 303. Giesy v. Truman, lY App. D. C. 449. (67) Adriaans v. Lyon, 8 App. D. C. 532. This statement may seem too positive in view of the dogmatic as- sertions of some writers that the only effect of a finding in favor of the plaintiff was that the defendant must be allowed to answer over. The leading cases on the subject are Kennedy v. Creswell, 101 U. S. 641; Farley v. Kittson, 120 U. S. 303; Dalzell v. Mfg. Co., 149 U. S. 314; Westervelt v. Library Bureau, 118 Fed. 824, and Adriaans v. Lyon, 8 App. D. 0. 532. In Farley v. Kittson and Dalzell v. Mfg. Co., the point is not discussed though the court in both cases ordered an answer to be filed after a plea found false upon the proofs, but in each 104 VARIOUS FORMS OF DEFENSES DEFINED. "Having put the plaintifif to the trouble and delay of an issue, the defendant cannot, after it is found against him, claim the right to file an answer, although if the complain- ant desires a discovery, which the plea sought to avoid, he may, undoubtedly, insist upon it; but that is the complain- ant's right, not the defendant's."^^ At an early date the use of the plea fell into disfavor, and the practice of making all defenses by answer (which was always the privilege of the defendant in chancery) was encouraged. Marshall and Story were both on the bench when the first rules of practice for the Federal equity courts were promulgated by the Supreme Court of the United States;®' the twenty-third of these rules provided that "the defendant instead of filing a formal demurrer or plea, may insist on any special matter in his answer and have the same benefit thereof as if he had pleaded the same of these cases an accounting was prayed and discovery was necessary to plaintiff's relief. The plaintiffs were exacting their right to dis- covery, the defendants were not contending for any right to answer over, and so these cases should not he regarded as authorities sustain- ing the right of a defendant to answer after his plea is found false, but rather as applications of the rule, that the plaintiff's right of dis- covery is not to be denied him by an issue found in his favor on a false plea, any more than it would be denied him because of the defendant's default in appearing or answering in obedience to the subpoena. The question was directly raised in Kennedy v. Oresswell, Adriaans v. Lyon, and Westervelt v. Library Bureau. In the former two cases the right to answer over after pleading a false plea was denied after full consideration of the point. In the latter case it was affirmed. But the learned justice who decided the case fell into error by assum- ing that Kennedy v. Creswell was not binding upon him "because it originated in the courts of the District of Columbia, to which the equity rules of the Supreme Court do not apply." He was right in asserting that the rules of the Supreme Court of the United States do not govern the practice in the courts of the District of Columbia, but he was wrong in failing to recognize the case as authority on the point, because the rules of the courts of the District of Columbia in this particular were then verbatim et ad literatum the rules of the Supreme Court of the United States. (68) Kennedy v. Creswell, 101 U. S. 641. Adriaans v. Lyons, 8 App. D. C. 532. (69) Feb. term A. D. 1822, printed in preface to 7 Wheaton (5 Co.- op. 3Y5). VAEIOtJS FOEMS OF DEFENSES DEFINED. 105 matter or had demurred to the bill,"''*' by the thirty-ninth rule it was provided as follows : "The rule that if a defendant submits to answer he shall answer fully to all the matters of the bill, shall no longer 3^PPlyj "1 cases where he might by plea protect himself from such answer and discovery, and the defendant shall be entitled in all cases by answer to insist upon all matters of defense (not being matters of abatement or to the char- acter of the parties, or matters of form ) in bar of or to the merits of the bill, of which he may be entitled to avail him- self by a plea in bar ; and in such answer he shall not be compellable to answer any other matters than he would be compellable to answer and discover upon filing a plea in bar, and an answer in support of such plea, touching the matters set forth in the bill to avoid or repel the bar of de- fense. Thus, for example, a bona fide purchaser, for a val- uable consideration, without notice, may set up that de- fense by way of answer instead of plea, and shall be entitled to the same protection, and shall not be compellable to make any further answer or discovery of his title than he would be in any answer in support of such plea." Either the bar generally did not fully appreciate the ef- fect of these rules as permitting a defendant the same pro- tection against discovery when he defended by answer as was afforded by the plea, or there is justification in the as- sertion that the use of the plea was abused, in that it was interposed merely for the purpose of delay. We prefer to believe that the former reason prompted its use, but con- cede the fact to be, that though employed in good faith, it operated in many cases merely to prolong the litigation by introducing into the record a preliminary issue which upon judicial investigation was found to be more properly a trial question than a question of pleading. At all events, on No- vember 4, 1912, the present rules governing the practice of the Federal courts of equity were promulgated, by the twenty-ninth of which it is provided that "demurrers and pleas are abolished. Every defense in point of law arising upon the face of the bill, whether for misjoinder, non- joinder or insufficiency of fact to constitute a valid cause of action in equity, which might heretofore have been made (70) Printed in preface to Vol. 1, Howard's Eeports. 106 VARIOUS FORMS OF DEFENSES DEFINED. by demurrer or plea, shall be made by motion to dismiss or in the answer; and every such point of law going to the whole or a material part of the cause or causes of action stated in the bill may be called up and disposed of before final hearing at the discretion of the court. Every defense heretofore presentable by plea in bar or in abatement shall be made in the answer and may be separately heard and disposed of before trial of the principal case in the discre- tion of the court. If the defendant move to dismiss the bill or any part thereof, the motion may be set down for hear- ing by either party upon five days' notice, and, if it be de- nied, answer shall be filed within five days thereafter or a decree pro confesso entered." It remains, therefore, to consider the effect of this rule upon the rights of the parties to a suit in equity. 1. Does it deprive a defendant of any defense either to the relief or to the discovery prayed in the bill that might have been formerly availed of by plea? So far as the reported cases inform us the interpretation and application of Eule 29 has not as yet been presented for judicial consideration, save in a few cases; and what now follows is stated with the hesitation which should accom- pany the expression of a legal opinion not wholly supported by precedent. 1. It was not the purpose of the framers of these rules to change any rule of evidence or affect any substantial rights (any mere rule of court drawn in language to that effect would be invalid), therefore the right to rely upon any matter of defense that might formerly have been availed of by plea is not destroyed, but it must be set up by way of answer and not by way of plea. 2. It changes the practice by making the judicial consid- eration of the matter in the answer, which might formerly have been set up by plea, prima facie a trial question rather than a mere question of pleading. Prior to the adoption of this rule it was the absolute right of the plaintiff to test the legal sufficiency of the plea (by setting it down for argu- ment) or to try its truth (by a replication to it) and have a preliminary decision thereon before going further into the controversy. In other words it was his right to insist upon a "piece meal" investigation of the controversy. The effect of the new rule is to limit the enjoyment of this right VARIOUS FOBMS OF DEFENSES DEFINED. 107 by making it a matter resting in the sound discretion of the court, the language of the rule in that particular being that defenses contained in the answer which were formerly pre- sentable by plea ''may be separately heard and disposed of before the trial of the principal case in the discretion of the court." And it has been held that a legal proposition, going to less than the whole case made by the bill, should not be decided in advance of final hearing, unless such decision will add to or eliminate from the case a clearly defined and easily stated mass of testimony, the presence or absence of which will not change or effect the method of presenting other aspects of the litigation.'"^ It is generally believed that the new rule twenty-nine, making mandatory that which under old rule thirty-nine was only optional with the pleader, viz : the making of all defenses by answer, tends to a speedier administration of justice. § 26. The Answer. — In treating the answer it is neces- sary, in many instances, to state principles and cite cases which governed it prior to the promulgation of the new rules. Their weight as precedents is modified to the extent that they bear upon the demurrer and plea considered as defenses separate from the answer, but are in full force and effect where the answer as a pleading or as giving discovery is considered. While the new rules abolish demurrers and pleas absolutely, there is substituted for these, the motion to dismiss in lieu of the demurrer, and a preliminary hear- ing in the discretion of the court of any special matter contained in the answer, which might formerly have been set up by way of plea. Before as well as since the new rules the answer was re- garded as the omnibus form of defense ; herein is stated all matters of a defensive character which the defendant in- tends to rely upon to defeat the plaintiff's case. Eule 30 provides that : "The defendant in his answer shall in short and simple terms set out his defense to each claim asserted by the bill, omitting any mere statement of evidence and avoiding any general denial of the averments of the bill, but specifically admitting or denying or ex- (71) Boyd V. N. T. & H. E. Co., 220 Fed. 174. 108 VARIOUS FORMS OF DEFENSES DEFINED. plaining the facts upon which the plaintiff relies, un- less the defendant is without knowledge, in which case he shall so state, such statement operating as a denial. Averments other than of value or amount of damage, if not denied, shall be deemed confessed, except as against an infant, lunatic or other person non compos and not under guardianship, but the answer may be amended, by leave of the court or judge, upon reason- able notice, so as to put any averment in issue, when justice requires it. The answer may state as many defenses, in the alternative, regardless of consistency, as the defendant deems essential to his defense. "The answer must state in short and simple form any counter-claim arising out of the transaction which is the subject matter of the suit, and may, without cross-bill, set out any set-off or counter-claim against the plaintiff which might be the subject of an inde- pendent suit in equity against him, and such set-off or counter-claim, so set up, shall have the same effect as a cross suit, so as to enable the court to pronounce a final judgment in the same suit both on the original and cross-claims." Prior to the adoption of this rule, allegations in the bill which were not covered by the answer were not deemed to be admitted as at present they are, but were treated as if denied, and the remedy of the plaintiff (unless he was con- tent to prove them) was to file exceptions to the answer for insufficiency; these exceptions were brought to a hearing before the court and either sustained or overruled. If sus- tained, the defendant was required to file a more complete answer. By Rule 30, exceptions for insufficiency are abol- ished, and now if the plaintiff is not satisfied with the im- plied admission arising out of the failure to admit or deny (e. g., if he wants discovery), he may either move to strike out the answer for failure to comply with Eule 30, or move for contempt process for failure to obey the mandate of the subpoena. The answer may contain three distinct elements : first, the matter of defense purely, wherein it resembles the plea at common law; second, matter of counter-claim and set- off, wherein it resembles the old crosB-bill, and the plea of VARIOUS FORMS OF DEFENSES DEFINED. 109 set-off at law ; third, matter of discovery, — statements and admissions aiding the proof of the plaintiff's case, — which is peculiar to the practice in chancery. In drafting the answer the elements of defense and discovery are not kept formally distinct and separate, but are combined into one consistent statement with the exception of the answers to specific interrogatories that may be appended to the bill, which are generally answered in a distinct and separate paragraph. Matter of set-off and counter-claim is stated separately and follows the other matter of the answer. All of it, however, is set forth in one document over the signa- ture and oath of the defendant and not by separate papers. The defendant need not in his answer disclose matter subjecting him to penalties and forfeitures, immaterial matter, matters involving professional confidence, or that would be injurious to the public interest, nor matters of evidence that relate only to the defendant's case,''^ and he must not set forth mere legal conclusions, nor matters of scandal and impertinence. The answer may contain both matter of traverse and in confession and avoidance, and is not limited to any num- ber of either; and like the bill is generally divided into numbered paragraphs, each paragraph of the answer being directed to the paragraph in the bill of corresponding num- ber. If the defendant has no knowledge of the truth of a particular matter he should so state, but the answer should not be merely evasive or non-committal. He should not aver lack of knowledge without stating his information and belief, on the point, if he has any ; for if he possesses any information it is his duty to tell what the information is. It is bad pleading to state that he "does not admit" the al- legations. The answer must be under oath, unless the oath is waived by the plaintiff ; and must be signed by the party in whose behalf it is filed. In the case of an infant or incompetent person, his guardian or committee must sign the answer. The answer of a corporation is authenticated by its seal, or if none, by the signatures of its principal officers. Besides this, every answer should be signed by the defendant's (72) See supra, Limitations Upon the Eight of Discovery, § 6. 110 VARIOUS FOBMS OF DEFENSES DEFINED. counsel, as a guaranty of its sufficiency and its freedom from impertinence and scandal. Generally the plaintiff is entitled to have a separate an- swer from each defendant, but two or more may file a joint and several answer if their interests or titles are similar. Amended and supplemental bills must be answered with- in ten days after filing, unless for cause shown the time is enlarged by the court. Set-off and Counter-claim. — Before the new rules be- came effective afflrmative relief in favor of the defendant could only be had in the federal courts by cross-bill,''' and the rules and decisions of the federal courts required that the matter of the cross-bill be germane to the matter of the original bill,''* i. e., the relief claimed in the cross-bill must have arisen out of the same subject-matter or controversy that was set out in the original bill. Since the promulgation of the new rules, introducing the word set-off as well as counter-claim, the question has arisen whether or not the defendant is now permitted to have by way of answer, affirmative relief of a broader character than he might have had under the old cross-bill. In other words whether or not it is still necessary that the subject- matter of the affirmative relief claimed need be limited to matters which are germane to the subject-matter of the bill. At first the courts were inclined to construe the rule in analogy to the old cross-bill and thus exclude matter of set- off purely (which may arise out of a controversy between plaintiff and defendant growing out of matters wholly un- connected with the controversy which is the subject of the original bill) but the weight of authority is now in favor of the right to set up any matter of eqwitaUe cognizance in favor of the defendant, thus modifying the old rule requir- ing such matter to be germane to the original bill. The cases are found in the note below.''* Of course the affirma- (73) McPherson v. Cox, 96 F. S. 404. (74) Providence Eubber Co. v. Goodyear/ 9 Wall. 807 ; Kingsbury V. Buckner, 134 U. S. 650. (75) The cases holding that set-ofF as well as counter-claim may be the subject of affirmative relief are: Marconi Wireless Tel. Co. v. Natl. Electric Co., 206 Fed. 295 ; Salt's Textile Mfg. Co. v. Tingue Mfg. Co., 208 Fed. 156; Vacuum Cleaner Co. v. American Eotary VAfilOUS FORMS OF DEFENSES DEFINED. Ill tive relief claimed must be of a matter cognizable in equity, whether the matter be strictly matter of counter-claim or of set-off.''^ It has been held that matter of counter-claim must be set up and if not, is deemed to be abandoned.'''' The old cross-bill was regarded as a mere auxiliary to the original suit, a graft and dependency upon it,''* and hence even though it were sustainable as an original bill, under the old rules it must be dismissed if the original bill to which it was an auxiliary be dismissed.''^ As the new rule 30 has broadened the defendant's right to affirmative relief so as to include any matter of "set-off or counter-claim against the plaintiff which might be the subject of an inde- pendent suit against him" and authorizes the court "to pronounce a final judgment in the same suit both on the origLual and cross claims" a decree may now be entered granting affirmative relief to the defendant though the plaintiff entirely fail to make out any case. Separate hearing of matter in the answer that might formerly have been set up hy plea. — Now that all defenses both in abatement and in bar are required to be made by answer, many cases will arise wherein the convenient ad- ministration of justice may require separate trials of the issues presented by the answer. To illustrate, X claiming as the assignee of a patent, sues Y charging him with in- fringement and praying a discovery and accounting. Y in his answer says first, that the assignment under which X claims is a forgery and that X has no title to the patent, legal or equitable ; second, that he has never infringed the patent. The trial of the issue as to the forgery would or- Valve Co., 208 Fed. 419; Electric Boat Co. v. Lake Torpedo Boat Co., 215 Fed. 377; U. S. Expansion Bolt Co. v. Kroncke Hardware Co., 216 Fed. 187; Buffalo Specialty Co. v. Van Cleef et al., 217 Fed. 91. Those contra are : Terry Steam Turbine Co. v. Sturtevant, 204 Fed. 103; Williams v. Kinsey, 205 Fed. 375; Adamson v. Shaler, 208 Fed. 566; Klauder-Weldon Co. v. Giles, 212 Fed. 452; Sydney v. Mug- ford, 214 Fed. 841. (76) Marconi Wireless Tel. Co. v. Natl. Electric Co., 206 Fed. 295 ; Motion Picture Patents Co. v. Eclair Film Co., 208 Fed. 416. (77) Portland Wood Pipe Co. v. Slick, 222 Fed. 528. (78) Providence Rubber Co. v. Goodyear, 9 Wall. 807; Ayres v. Carver, 17 How. 591. (79) Dows V. Chicago, 11 Wall. 108; Cross v. Del Valle, 1 Wall. 1. 112 VARIOUS FOEMS OF DEFENSES DEFINED. dinarily not be lengthy but the trial of the issue as to in- fringement might consume days, weeks or months. If X has no title there is an end of the matter : the issue as to the infringement need not be tried at all, the suit must be dismissed. , Formerly the issue as to the forgery might have been tendered by a plea, and it is to remedy the inconvenience that would arise in such cases out of the abolition of the plea, that Rule 29 provides that such defenses "may be separately heard and disposed of before the trial of the principal case, in the discretion of the court." This meth- od of trying the issues presented by the pleadings "piece- meal" will only be indulged where it is clear that the is- sues are distinct and certain, and that great economy of time and expense will be attained through victory on the part of the defendant as to the preliminary issue to be tried. Whether or not under the case put the defendant would be obliged to give discovery in his answer as to the charges of infringement, does not seem to have been decided since the adoption of the new rules, and the rules themselves are silent on the point. Old Eule 39 which permitted but did not com/pel a matter of defense that might properly be availed of by plea, to be set up by way of answer instead of plea, expressly provided that in such a case, the defend- ant should "not be compellable to answer any other mat- ters than he would be compellable to answer and discover upon filing a plea in bar and an answer in support of such plea." It is not believed to have been the purpose of the framers of the new rules to affect any substantial right of a litigant in equity*" (and protection against discovery is a substantial right), and so it is thought that except with respect to specific acts of infringements charged in the bill (which must be answered or deemed confessed under Rule 30), no other discovery is required. A practical ap- plication of the principle just stated would occur in case the bill charged certain acts of infringement, with time, place and circumstance, followed by a general charge of divers and sundry other acts at times and places unknown to the plaintiff, but as to which discovery is prayed ; here some answer as to the specific acts would be necessary or (80) Speidel Co. v. Barstow Co., 232 Fed. Eep. 617. VARIOUS FORMS OF DEFENSES DEFINED. 113 they would be taken as confessed, but no discovery as to other acts could be exacted except upon a reference to a master, after the title of the plaintiff to maintain his suit, the fact of infringement, and the right to an accounting had been established. Testing the Legal Sufficiency of the Answer. — ^A de- murrer to an answer is unknown to chancery practice,*^ the demurrer would lie only to the various forms of bills, and a decision as to the legal sufficiency of the other plead- ings in equity was obtained by "setting the cause for argu- ment" if a plea ; by "motion to strike" or by "setting the cause for hearing on bill and answer" if the pleading ob- jected to were an answer. Under the present rules the procedure is either by mo- tion or by hearing on bill and answer. By Motion. — The motion is the appropriate method in the following situations: (a) If the defendant instead of moving to dismiss has elected to challenge the sufftciency of the bill in whole or in part, in his answer as under Eule 29 he may do, either party may in the discretion of the court have the point of law thus raised heard and deter- mined as a question of pleading without waiting for a hearing on the merits and this he would do by way of a motion for a hearing on the points of law raised by the paragraphs of the answer (indicating them by number) wherein the objections to the sufficiency of the bill are set forth. This is really an indirect method of testing the sufficiency of the bill. Unless it appears obvious that a preliminary consideration of the questions thus raised will promote economy of time or expense in the final hearing of the case such preliminary hearings will not be granted, the questions will be treated as trial questions rather than questions of pleading and relegated for consideration to the final hearing, (b) If the answer contain matter that is immaterial, scandalous or impertinent, or averments of opinions or legal conclusion, or is frivolous or in any re- spect violates the rules of pleading or practice a motion will lie to strike it or the objectionable parts thereof from the files, (c) If the answer sets up an affirmative defense, (81) Walker v. Jack, 88 Fed. 576. 8 114 VARIOUS FORMS OF DEFENSES DEFINED. set-off or counter-claim, a motion to strike out lies to test the sufficiency thereof.*^ Hearing on Bill and Answer. — If the answer be suffi- cient in form and substance and its averments are true in fact, but in the opinion of the plaintiff the facts stated constitute no legal bar to the relief prayed, the plaintiff will have the cause heard on bill and answer. By submit- ting the cause for hearing on bill and answer the aver- ments of the answer so far as they are material and re- sponsive to the bill are admitted to be true and so this method of procedure is to all intents and purposes the equivalent of demurring to the answer. The hearing upon bill and answer is a final hearing, and is followed by a decree either dismissing the bill or granting the relief prayed according as the question of law may be determined by the court for the plaintiff or for the defendant. The Answer as Evidence. — For reasons very obvious the pleadings themselves both at law and in equity are inad- missible as evidence in favor of the party pleading. They are in the main self-serving declarations made by a party in interest free from the influence of cross-examination and often not under oath. The answer in equity is to some extent an exception to this rule. When under oath (oath not being waived by plaintiff) and in so far as it is responsive to the bill, it is evidence for the defendant and may be read at the hearing by him as a part of his proof. This rule seems to be based upon the same theory as that which applies to the produc- tion of witnesses. The complainant having seen fit to com- pel the defendant to file a sworn answer has substantially made him his witness, and so he cannot be heard to say that the answer thus required is entitled to no credit.*' The rule in this respect as stated by the older writers was that the answer, so far as it was responsive to the bUl, was evidence of so strong a character that "the plaintiff must overcome it by the counter-evidence of two witnesses, or of one witness and strong corroborating circumstances."'* Modern decisions do not state the rule so strongly, and the (82) Eule 33. (83) Van Zile Eq. PI. & Pr., Sec. 207; 2 Greenleaf on Ev., Sec. 285. (84) Story Eq. PI., Sec. 849 (a). VARIOUS FORMS OF DEFENSES DEFINED. 115 courts now treat the answer when sworn to and responsive to the bill merely as a deposition in the case which may- be rebutted by any evidence or circumstances which would convince the court of its untruthfulness.*^ By matter responsive to the hill is meant matter in af- firmation, denial, or explanation of the allegations of the bill and the interrogatories appended thereto. Matter in confession and avoidance is not responsive — at least the affirmative feature thereof is not, and cannot be read as evidence. "If the defendant by his answer admits a fact alleged in the bill, and then sets up another matter in avoidance thereof, this matter in avoidance is not respon- sive to the bill and his answer is not evidence of it."*® So of course matter of set-off or counter-claim would not be responsive, and the burden of proving it is upon the de- fendant.*'' Waiving the Oath. — It is within the power of the plain- tiff to deprive the answer of its evidentiary character by expressly stating in his bill (generally in the prayer for process) that an answer under oath is waived. The effect of this waiver is to make the answer a mere pleading with- out any other probative virtue than that possessed by other ex parte depositions or affidavits (which may be read in support of some preliminary or interlocutory application but cannot be offered in evidence at the trial or final hear- ing) , and so it has been held that where the oath has been (85) Van Zile Eq. PI. & Pr., Sec. 208. (86) Reid v. McCoUister, 49 Fed. 16; Clarke v. White, 12 Pet. (U. S.) 190. (87) Among the exceptions to the rule that an answer upon oath is evidence for the defendant, are the following : 1. Matters of avoidance or discharge. 2. Matters in respect to which the answer is absurd or contradic- tory. 3. Where the answer is not direct or positive in its explanations or denials. 4. When the answer is on information and belief. 5. Where from the answer it is apparent that although sworn to, it is actually on information and belief. 6. When the answer upon oath is discredited upon one point, its effect is impaired or destroyed upon others. Y. When the defendant in the answer upon oath professes ignorance of any or all the matters alleged in the bill. Story Eq. PL, Sec. 849 (a). 116 VARIOUS FORMS OF DEFENSES DEFINED. waived the answer has no force as evidence even though it be sworn to.'* In such a case the plaintiff having ex- pressly disavowed his intention of calling on the defend- ant for evidence, deprives the defendant of the right to reply upon the answer as a part of the proof of his defense. Of course the answer, whether sworn to or not, is evidence for the plaintiff in so far as it contains any admissions or statements favorable to the plaintiff's case, this being in harmony with the rule of evidence making declarations or admissions against interest evidence against the party making them. § 27. Disclaimer. — Where a party has neither interest nor liability with respect to the subject-matter of the suit, he may free himself from connection therewith by filing a disclaimer. This is a written statement by the defendant, similar in form to the answer, disavowing and renouncing interest or claim in the matters set forth in the bill.*^ If the disclaimer prevails the bill must be dismissed as to that particular defendant, and as a general rule he is en- titled to costs, to be paid by the complainant. If, however, the defendant attempts to disclaim in a case where his dis- claimer does not entitle him to a dismissal, he must, not- withstanding, still be retained as a party defendant.^" A form of disclaimer is found in the appendix. § 27a. Beplication. — Formerly, if the plea or answer set up facts sufficient, if true, to bar the relief prayed the plain- tiff filed a general replication, its language being: "The plaintiff joins issue on the defendant's (plea) answer," or words to that effect;®^ and the cause was not considered at (88) Dravo v. Fabel, 132 U. S. 487; Union Bank of Georgetown V. Geary, 5 Pet. (U. S.) 99. (89) Story Eq. PL, Sec. 838. (90) Isham v. Miller, 44 N. J. Eq. 61. (91) In Goodno v. Hotchkiss, 230 Fed. 514, the court said: "Prior to 1842 special replications in equity had fallen into disuse, and they were not permitted, save by leave of the court in extraordinary cases. It was always required that new matter, or matter in response to allegations in the answer, should be set up by amendments to the bill, and could not be supplied by averments in the replication. Taylor et al. V. Benham, 5 How. 233 ; Wilson v. Stolly, 4 McLean 272, Fed. Cas. No. 17,839; Story Eq. PL, Sec. 676, 679, 878; Mitford & Tyler PL & Pr. in Eq., 413. "In 1842 the Supreme Court promulgated equity rule 45, providing VARIOUS FORMS OF DEFENSES DEFINED. 117 issue and ready for the taking of proof until a replication was filed. Kule 31 provides that unless the answer assert a set-off or counter-claim no reply shall be required without special order of the court or judge, but the cause shall be deemed at issue upon the filing of the answer, and any new or affirmative matter therein shall be deemed denied by the plaintiff. The words "new or affirmative matter" are here used in the sense of matter in confession and avoidance, and not in the sense of matter of set-off or counter-claim, for the rule further provides that if the answer include a set-off or counter-claim, — (an answer in the nature of a cross-bill), — the party against whom it is asserted shall reply within ten days or suffer a decree pro confesso on the counter-claim as in case of default in answering the bill. This reply is not a replication technically ; it is more in the nature of an answer to a cross-bill and instead of joining issue on the matter of set-off or counter-claim may tender a new issue by way of matter in confession and avoidance. In a late case what were designated by the pleader as "special replications" to two separate answers were moved to be stricken from the files ; one of the answers contained matter only defensive to the bill, the other demanded af- firmative relief against the plaintiff; the court said that the effect of Rule 31 was to do away with all replications in equity and held that the replication to the answer contain- ing merely defensive matter must be stricken out, but that the replication to the answer demanding affirmative relief might stand (unless the answer were amended by omitting that 'no special replication to any answer shall be filed,' and that if any matter alleged in the answer shall make it necessary for the plaintiff to amend his bill he may have leave to amend the same, with or without the payment of costs, as the court or a judge thereof may in his discretion direct. This rule was construed by the Supreme Court as meaning that: 'A general replication is always sufficient to put in issue every material allegation of an answer or amended answer, un- less the rules of pleading imperatively require an amendment of the bill.' (Southern Pac. E. Co. v. F. S., 168 U. S. 1, 57.) "And in Mason, Adm'r, etc., v. Hartford, Providence and Fishkill E. Co., 10 Ped. 334, a special replication to a plea and demurrer was stricken from the files by Judge Colt in accordance with the rule." 118 VARIOUS FORMS OF DEFENSES DEFINED. the prayers for affirmative relief) and would be treated as an answer to a cross-bill was formerly treated.®^ When the C In Equity No. . Albert Brown, Defendant. Bill for Infringement of Patent. The plaintiff respectfully shows to the court as follows : 1. That he is a citizen of the United States, a resident of the State of New York, and brings this suit in his own right; that the defendant is also a citizen of the United States, is a resident of the State of Missouri and is sued as hereinafter shown. 2. That heretofore, to wit, on the 14th day of February, 1914, the plaintiff being the inventor of a new and useful improvement in sewing machines, having made due appli- cation, and having in all respects complied with all the re- quirements of law in that behalf, did obtain letters patent therefor issued to him by and in the name of the United States of America, whereby was granted and secured to the plaintiff for the term of seventeen years from said date, the exclusive right and liberty of making, constructing, using, and vending, the said improvement in sewing ma- chines therein specified and claimed, as by a certified copy of said letters patent filed herewith, marked "plaintiff's ex- hibit A," and prayed to be read as part hereof, will more fully appear. < 3. That on or about the 1st day of June, 1915, the de- fendant Albert Brown, trading under the name of the Bird Sewing Machine Company, began the manufacture and sale of a sewing machine under the name of the Bird Sew- 152 FOBMS OF BILLS ORIGINAL. 153 ing Machine ; and since said date has continued to manu- facture and sell under the name aforesaid a sewing ma- chine embodying mechanically the improvements covered by the patent granted to the plaintiff as aforesaid, that is to say (here state specifically the infringements) ; and that said defendant maintains a large factory at with salesrooms at and other places and has de- rived large profits from the sale of a great number of said machines, whereby he has infringed and will in the future continue to infringe upon the rights and privileges secured to the plaintiff by his letters patent aforesaid. Wherefore the plaintiff prays : 1. That the writ of subpoena be issued and served upon the defendant Albert Brown, commanding him to appear and make answer hereto. 2. That the defendant discover and set forth the time when and the place where he has made, used and vended to others to use any sewing machines embodying the speci- fications embraced within the letters patent described herein and what consideration he has received therefor and how many sewing machines of that character he has sold and in what respect, if at all, the sewing machines manu- factured or sold by him differ from the plaintiffs patent. 3. That the defendant be decreed to account for and pay over to the plaintiff all gains and profits realized from his unlawful making, using and vending of sewing machines embracing said improvements patented to and vested in the plaintiff as aforesaid. 4. That the defendant be restrained and enjoined tem- porarily and permanently from making, using or vending any sewing machines embracing said improvement or any substantial part thereof ; that the infringed machines now in the possession of or under the control of the defendant may be delivered up to be destroyed. 5. And for such other and further relief in the premises as the nature of the case may require. JAMBS JAEMAN, Plaintiff. WALTEK SPENCEK, Attorney. (Jurat.) 154 FORMS OF BILLS ORIGINAL. IN THE SUPREME COURT OF THE DISTRICT OF COLUMBIA. Phoenix Mutual Life Insurance Co., Plaintiff, vs. Arthur J. Clark, Administrator of the Estate of Mary Doe, and Lucius L. Mason, Administrator of the Estate of John Doe, De- fendants. >■ In Equity No. Bill of Interpleader. The plaintiff respectfully shows to the court as follows : 1. That it is a corporation duly organized and existing under the laws of the State of Massachusetts, and brings this suit in its own right. That the defendants are citizens of the United States and residents of the District of Col- umbia, and are sued as hereinafter shown. 2. That heretofore, to wit, on the 10th day of January, 1904, the plaintiff executed and delivered to John Doe its policy of insurance, numbered 27,015,654, a certified copy of said policy being filed herewith and marked plaintiff's exhibit A, whereby it insured the life of the said John Doe in the sum of $10,000, and whereby it agreed to pay to Mary Doe, the mother of John Doe, her executors, admin- istrators and assigns, the sum of |10,000 upon satisfactory proof of the death of said John Doe. 3. That said Mary Doe, the beneficiary named in said policy, died on the 15th day of January, 1910, she being then resident and domiciled in the District of Columbia, and letters of administration were duly granted on her estate, to the the defendant Arthur J. Clark, by the Su- preme Court of the District of Columbia, sitting as a pro- bate court; a certified copy of said letters of administra- tion being filed herewith and marked plaintiff's exhibit B. 4. That after the death of said Mary Doe, the said de- fendant Clark, administrator of her estate, at the request of the insured, the said John Doe, executed and delivered FORMS OF BILLS ORIGINAL. 155 to the insured a formal written assignment, whereby he transferred and conveyed to the assured all of the right, title and interest of the estate of the said Mary Doe to the insured, his executors, administrators and assigns, a duly authenticated copy of said assignment being at the same time forwarded to the plaintiff company to be filed among its archives ; that said copy was so filed and a copy thereof as filed is filed herewith, marked plaintiff's exhibit 0. 5. That before and after the death of the said Mary Doe, and at all times during the life of said policy, the insured John Doe paid all the premiums up to the time of his death, which occurred on the 15th day of January, 1916. 6. That said insured John Doe died resident and domi- ciled in the District of Columbia, intestate, and letters of administration on his estate have been granted by the Su- preme Court of the District of Columbia, holding a probate court, to the defendant Lucius L. Mason. 7. That each of said defendants claim the entire avails of said policy of insurance, which has become payable to whomsoever may be lawfully entitled thereto, by reason of the death of the said insured John Doe, the one claiming as the administrator of the estate of the said Mary Doe, the former beneficiary thereof, and the other as the ad- ministrator of the estate of the said insured, John Doe. That the administrator of the estate of the said Mary Doe notwithstanding the fact of making the assignment herein- before referred to, bases his claim to the proceeds of said policy under the provisions of Section 323 of the Code of Law for the District of Columbia, which provides as fol- lows : "Order for Sale. — No executor or administrator shall sell any property of his decedent without an or- der of the probate court authorizing such sale; and any such sale made without a previous order author- izing it shall be void and pass no title to the purchaser. If any executor or administrator shall sell, pledger, or dispose of any property without such previous or- der, his letters may be revoked and an administrator appointed, whose duty it shall be immediately to re- cover possession of said property, and such removed executor or administrator may be proceeded against 156 FOEMS OF BILLS ORIGINAL. by attachment; but where there are two or more ex- ecutors or administrators, and a sale, pledge or dis- position of property has been made without the con- sent of all, the revocation shall only extend to the per- son or persons so offending, and the remaining execu- tors or administrators shall have power to discharge the duties of their office and institute proceedings for the recovery of the property and attachment as afore- said," and says that the assignment was made without any order of court obtained and without any consid- eration and is therefore void. The defendant Mason, administrator of the estate of said assured, John Doe, claims not only by virtue of the assign- ment aforesaid, but also on the ground that the death of the beneficiary named in the policy before the policy be- came payable devested the interest therein of the bene- ficiary and vested the same in the insured. 8. The plaintiff further alleges that each of said defend- ants is threatening to bring a suit against the plaintiff for the sum payable under the policy aforesaid; that it has always been willing to pay the sum due under the policy aforesaid to such person or persons as are lawfully entitled to receive the same, and to whom the same may with safety be paid ; and it hereby offers to pay the same into the reg- istry of this court; and it further alleges that it does not in any respect collude with either of the said defendants, Clark and Mason, touching the matters in question in this case; that it has not exhibited this bill at the request of either of said defendants ; that it has not been indemnified by either of said defendants ; and that it files this bill of its own free will and accord to avoid being twice vexed molested or injured touching the matters in question. Wherefore it prays : 1. That process may issue and be served upon the de- fendants and each of them, requiring them to appear and make answer hereto. 2. That the defendants may be required to interplead and settle their rights to the said sum of money, and that the plaintiff may be permitted to pay the said sum into the registry of this court. FORMS OF BILLS ORIGINAL. 157 3. That the defendants and each of them be restrained and enjoined temporarily and permanently from institut- ing or prosecuting against the plaintiff any suit or action touching the sum of money aforesaid ; and that the plain- tiff upon the payment of said sum of money into the regis- try of this court, may have a decree requiring the said de- fendants to interplead according to the course of this court, discharging the plaintiff from all liability to either of the defendants arising out of the matters herein stated, and may have adjudged to it its costs in this behalf sus- tained. 4. And for such other and further relief as the nature of the case may require. PHGENIX MUTUAL LIFE INSUEANOE CO. By John Walter Fleming, its Secretary. JOHN DOE, Attorney. ( Jurat. ) IN THE SUPREME COURT OF THE STATE OF MARYLAND. State of Maryland, Plaintiff, vs. Albert Brown and David Marks, Defendants. ^ In Equity No. Information,* To the Judges of the Supreme Court, of the State of Maryland: Comes now John Davis, Attorney General of the State of Maryland, and informing, shows to the court as follows : 1. That there is situate, lying, and being within the town of , a certain public street, called V street, leading from a certain other public street, called B street, to a certain other public street, called G street, and communi- cating on the north side thereof with certain other public streets, called C street. Old B street and S avenue. (1) Adapted from Daniell's Chancery PI. & Pr., yoI. 3, p. 2076. 158 FORMS OF BILLS OEIGINAL. That at the east end of the said street called V street, there is a certain other public street, called S street, lead- ing from thence into a certain other public street, called P street, and that along the south side of said street, called V street, from S street to B street, there is, and for years past has been a common and public footpath, which has been from time to time paved with flagstones at the ex- pense of the inhabitants of the said town of , for the convenience of persons passing and repassing on foot; the said street, called V street, being a great public thor- oughfare for foot passengers from B street to S street, al- though there is not, nor ever has been, any thoroughfare for carriages along the said street from B street to S street, by reason of certain wooden posts, which are and ever since the making of the said street, called V street, have been placed across the said street a few feet to the eastward of S avenue. And the plaintiff on the relation aforesaid, shows that the said common and public footway from B street to S street, is and ever since the making of the same has been bounded on the south and for the most part by a certain ancient brick wall, which forms the northern fence and boundary of certain lands called M gardens and B gardens, and that there is not nor ever has been any public way or opening on the north side of the said footway, so that the people of the said town in passing and repassing on the same footway have at all times had the free and uninter- rupted use thereof without any hurt, hindrance or obstruc- tion whatsoever. That upwards of 10 years since, the defendants who were then and yet are owners of the said lands called M gardens and B gardens severally claimed a right to open a public street or .way from P street through their respec- tive lands into the said street called V street, and threat- ened to make a public street or streets accordingly, but such claim being resisted on the part of the proprietors and inhabitants of the said several streets, called V street, street. Old B street and S avenue, by reason of the dis- turbance and injury that would thereby be occasioned to the said several streets, the said owners of the said lands thought fit to abandon such claim, and after, by an act of the legislature of the State of Maryland, made and passed FORMS OF BILLS ORIGINAL. 159 on the day of , entitled "An Act to — it was provided that (quote material part of the act) which pi-ovision was inserted in the said act for the pur- pose of protecting the said streets called V street, S ave- nue, C street, and Old B street, from any thoroughfare for carriages from P street to the said street called V street, by way of S street, or by any other means than by the way of B street. 2. That said David Marks, proprietor of the said lands called M gardens, and Albert Brown, proprietor of B gar- dens, the defendants herein, are about to make a public street or way for horses, carts, and carriages, from P through the said lands called M gardens and the lands called B gardens and the public street called V street, over the aforesaid common and public footway on the south side of the said street; and in and towards the execution of such plan has actually made an opening in the said ancient boundary wall and has taken up a part of the flag pave- ment of the said footway. That such public street or way so intended to be made by the said defendants, if carried into execution will great- ly interrupt and obstruct the said common and public foot- way on the south side of the said street, called V street, and will be to the great damage and common nuisance of all the people of said town, passing and repassing by the said footway. That such intended work, if carried into execution, will be opposite to the end of S avenue, and westward of the said wooden posts, so as aforesaid placed across the said street called V street, and by making a direct thoroughfare for horses, caTts and other vehicles, from P street into the said street called V street, will actually defeat the provi- sion made as aforesaid in the said act for the protection of the said streets called V street, S avenue, street and Old B street, from any thoroughfare for carriages, and will therefore be contrary to the true intent, meaning and spirit of the said act. 1. (Prayer for process.) 2. That the said defendants, their agents, servants and workmen, may be restrained by the order and injunction of this honorable court from proceeding to make and open any public street or way from the said lands into the said In Equity No. 49. 160 FORMS OF BILLS NOT OEIGINAL. street called V street, over the said common and public footway ; and that the said defendants may be directed to replace the flagstones of the said footway so as aforesaid removed by him or by his order, and to put the same foot- way into the same state and condition as the same was in before his obstruction aforesaid. 3. And for such other and further relief as the nature of the case may require. JOHN DAVIS, Attorney General for the State of Maryland. ( Jurat. ) Forms of Bills Not Original. IN THE SUPREME COURT OF THE DISTRICT OF COLUMBIA, HOLDING AN EQUITY COURT. John Rand, Plaintiff, vs. Albert Brown, Defendant. Bill for Discovery. The plaintiff respectfully shows to the court as follows : 1. ( Same as in bill on Page — ante. ) 2. That the plaintiff is seized in fee simple of, and other- wise well entitled to, certain real estate situate in the city of Washington, District of Columbia, particularly de- scribed in certain deeds of conveyance of the same to the said plaintiff, from John Fairfax and Samuel Walker, dated December 17, 1894, recorded in the Registry of Deeds, liber , folio , copies of which deeds are hereunto annexed and made a part of this bill. That an action of ejectment has been filed against the plaintiff by one Albert Brown, the defendant herein, and that said action is pending and ready for trial at the next term of court. That the defendant has in possession cer- tain documents and muniments of title, to wit, a certain deed from Charles Douglas to Albert Brown, and a certain other deed from Albert Brown, to the plaintiff, necessary to be used by the plaintiff in the trial of the action, and further that defendant himself well knows that the plain- tiff has been in visible and undisturbed, continuous, unin- terrupted and notorious possession of the land in contro- FORMS OF BILLS NOT ORIGINAL. 161 versy, adverse to all the world for more than twelve years last past. Wherefore the plaintiff prays : 1. (Prayer for process as in bill ante.) 2. That the said defendant may set forth how he makes out his said claim, and when and up to what time he com- putes and alleges his possession, and that the said defend- ant may make a full and true discovery of all and every the matters aforesaid. 3. And for such other and further relief as the nature of the case may require. (Signed) JOHN EAND, Plaintiff. WALTEK SPENCEE, Attorney. (Jurat.) IN THE SUPREME COURT OF THE DISTRICT OF COLUMBIA, HOLDING AN EQUITY COURT. Equity No. 48. Everett Halifax, Plaintiff, vs. Mortimer Biggins, Defendant. Bill to Perpetuate Testimony. The plaintiff respectfully shows to the court as follows : 1. (State citizenship, residence and character in which they sue and are sued. ) 2. That heretofore, to wit, on the 10th day of January, 1915, John Halifax, the father of the plaintiff, died, domi- ciled in the District of Columbia,^ seized and possessed of a large amount of real and personal estate, consisting of stocks, bonds, securities and personal effects of the value in the aggregate of |50,000.00 or more, and real estate ly- ing in the District of Columbia, being original lots 1 and 2, in square 1,000, improved by an apartment house known as The Washington, leaving the plaintiff as his only heir- (1) The courts of the jurisdiction in which the decedent was domi- ciled, only, have jurisdiction over probate and administration pro- ceedings. 11 162 FORMS OF BILLS NOT ORIGINAL. at-law and next of kin, and leaving no debts so far as is known to the plaintiff.** 3. That said John Halifax left a paper writing purport- ing to be his last will and testament, executed by him three days before his death, attested by two witnesses, which paper writing purports to devise and bequeath to the de- fendant all of his estate, real, personal and mixed, and to appoint the defendant as the executor thereof. 4. That at the time of the execution of said paper writ- ing the said John Halifax was eighty-seven years of age, feeble in both mind and body, and completely under the influence, domination and control of the defendant, who for many years immediately prior to his death had resided in his house, first as his valet, then as his confidante and adviser, and the plaintiff is informed and believes, and so believing charges and avers, that said John Halifax was at the time of the execution of the paper writing aforesaid mentally incapable of making any valid deed or contract and incapable of making any valid disposition of his prop- erty by will or testament, and that the said paper writing was obtained by fraud and undue infiuence practiced upon him by the said defendant. 5. That said defendant has not propounded said paper writing for probate,' nor applied for letters testamentary thereunder, nor otherwise attempted to cloud the title of the plaintiff to the estae left by said decedent,* but retains the possession thereof and threatens to assert rights there- under in the future. 6. That the household of said John Halifax consisted of a butler, a maid, and a cook, in addition to the defendant, who in latter years styled himself secretary to the deced- ent. That the butler, by name of James Stokes, the maid Mary Wimple, and the cook Bridget O'Toole, will each testify in any trial as to the validity of said alleged will ; that the decedent was mentally incompetent at the time of its execution, and that he had been for some time prior (2) A creditor has the right to apply for letters of administration if the next of kin do not. (3) The laws of the District of Columbia do not prescribe any time within which a will must be offered for probate. (4) Until the will is propounded for probate a caveat which would develop the issues in the litigation herein threatened, would not lie. FORMS OF BILLS NOT ORIGINAL. 163 thereto under the undue influence of the defendant; but plaintiff says that the said James Stokes is 70 years of age and is physically infirm ; and he is informed and believes, and therefore avers, that said Mary Wimple and Bridget O'Toole have been employed by a family residing outside of the District of Columbia, and he fears that if said al- leged will be propounded for probate hereafter he may not be able to procure the testimony of any of them. Wherefore he prays: ( 1 ) ( Prayer for process as in bill, page ante. ) (2) That the plaintiff may be at liberty to examine the said several witnesses and that if necessary may have a commission for the examination thereof, to the end that their testimony may be preserved and perpetuated, and that the plaintiff may be at liberty to read and make use of the same on all future occasions as he shall be advised. (3) And for such other and further relief as the nature of the case may require. (Signed) EVEEBTT HALIFAX, Plaintiff.^ WALTER SPENCER, Attorney. ( Jurat. ) IN THE SUPREME COURT OF THE DISTRICT OF COLUMBIA. Joseph W. McClanahan, Plaintiff," vs. Alex. W. Wallace, Defendant. > In Equity No. Bill of Revivor.^ Comes now James A. Mills, administrator of the estate (1) A practical method of provoking an application by the devisee for the admission of the will to probate so that a caveat might be filed thereto, would be by applying for letters of administration, alleging that decedent died intestate. But even if letters were granted it would not preclude a subsequent application by the devisee for pro- bate of the will. ( 1 ) The necessity for bills of revivor was removed by the rules per- mitting revivor on suggestion and motion. 164 FORMS OF BILLS NOT ORIGINAL. of Joseph W. McClanahan, the above-named plaintiff/ and shows to the court as follows : 1. That heretofore, to wit, on the 1st day of June, 1915, the above-named plaintiff exhibited his original bill herein against the above-named defendant, wherein he prayed for the rescission of a certain written contract more fully set forth in said bill; and the defendant appeared and an- swered said bill, and the same is now at issue. 2. That on the 3d day of June, 1916, the plaintiff afore- said died intestate, domiciled in the District of Columbia, and letters of administration on his estate were duly grant- ed to the plaintiff, who has duly qualified by giving bond which has been approved by the court. And the plaintiff avers that said suit having become abated by the death of the original plaintiff he is entitled to have the same revived and put in the same plight and condition as it was pre- viously to the payment thereof. Wherefore he prays : 1. (For process.) 2. That the said suit and proceedings stand revived and be in the same state and condition as they were in at the time of the death of the said plaintiff. 3. And for such other and further relief as the nature of the case may require. JAMES A. MILLS, Plaintiff. WALTER SPENCER, Attorney. (Jurat.) IN THE SUPREME COURT OF THE DISTRICT OF COLUMBIA. Harry S. Barger, Plaintiff, "^ vs. John G. Kerlin, Defendant. Bill in the Nature of a Bill of Revivor. The plaintiff respectfully shows to the court as follows : 1. That heretofore, to wit, on the 1st day of June, 1915, (2) The bill of revivor may be maintained by a defendant as well as plaintiff. >•' In Equity No. FORMS OP BILLS NOT ORIGINAL. 165 he exhibited his bill of complaint herein against the above- named defendant, praying the specific performance of a contract entered into between the said plaintiff and the said defendant, whereby the said defendant agreed to con- vey to the plaintiff the tract of land mentioned therein. 2. That said defendant being served with process ap- peared to the said bill, but before he put in his answer thereto, he, the said defendant, died, leaving a last will and testament duly executed, so as to pass title to real estate, whereby he devised all of his estate to Eufus M. Weaver, his heirs and assigns, as by reference to said will which has been duly probated and a certified copy whereof is filed herewith, will more fully appear. Wherefore the plaintiff prays : 1. (For process.) 2. That he may have all such benefit against said Eufus M. Weaver, the said devisee, of the proceedings had in this suit as he would have had in case the original defendant had not died as aforesaid. 3. And for such other and further relief as the nature of the case may require. HAREY S. BARGEE, Plaintiff. WALTEE SPENCEE, Attorney. ( Jurat. ) IN THE SUPEEME COUET OF THE DISTEICT OF COLUMBIA. >■ In Equity No. E. Herman Stevens, Plaintiff, vs. John B. McCallum, Defendant. Supplemental Bill.^ The plaintiff respectfully shows to the court as follows : 1. That heretofore, to wit, on the 1st day of June, 1915, (1) Supplemental bills are not resorted to nowadays as frequently as they formerly were. The construction of modern courts of the statutes and rules of court allowing amendments have extended the right of amendment to supplemental matter as well as to matter omit- ted or misstated. 166 FOEMS OF BILLS NOT ORIGINAL. the plaintiff herein exhibited his original bill against the defendant above-named, alleging that said defendant had for a long time acted as the plaintiff's agent and factor in the distribution and sale of jewelry placed by the plaintiff in defendant's hands, and that the defendant had received from time to time large sums of money from the sale of said product, for which he was accountable to the plain- tiff, and said bill prayed for an accounting and for other ^relief, and the plaintiff further shows that the defendant appeared and answered the said bill. That an order was made referring the cause to a master in chancery, before whom much proof has been taken and the cause is now pending before the master on the order of reference afore- said. 2. And now by way of supplement to the original bill the plaintiff says that on the 1st day of May, 1916, the said defendant was duly adjudged bankrupt and that Albert N. Howard was duly elected as the trustee of his estate in bankruptcy and has duly qualified as such, by giving bond which has been approved by the court, whereby all the es- tate and effects of the said defendant have become vested, by operation of law in the said Albert N. Howard, trustee. The plaintiff being advised that he is entitled to the same relief against the said Howard, trustee, as he would have become entitled to against the above mentioned de- fendant had he not become bankrupt, prays : 1. (For process.) 2. That the plaintiff may have the full benefit of the suit and proceedings now pending in this cause and may have the same relief against the said Albert N. Howard, trustee, as he would have had against the said defendant had he not become bankrupt. 3. And for such other and further relief as the nature of the case may require. E. HEEMAN STEVENS, Plaintiff. WALTER SPENCER, Attorney. (Jurat.) FORMS OF BILLS NOT ORIGINAL. 167 IN THE SUPEEME COUET OF THE DISTEICT OF COLUMBIA, HOLDING AN EQUITY COUET. Henry Wallace, Plaintiff, vs. y Equity No. . Thomas Wood, Defendant. Bill of Revivor and Supplement.^ Comes now Eichard Wilson, executor of Henry Wallace, deceased, the above-named plaintiff, and shows to the court as follows : 1. That heretofore, to wit, on the 1st day of June, 1916, the above-named plaintiff exhibited his bill herein against the above-named defendant, Thomas Wood, since deceased, wherein he prayed that the said Thomas Wood might be decreed to come to a just and fair account with the said Henry Wallace for the principal and interest then due and owing to him on the mortgage security in the said bill mentioned, and might pay the same to the said Henry Wal- lace by a short day to be appointed by the court, together with his costs; and in default thereof, that the said Thomas Wood might stand absolutely barred and fore- closed* of and from all manner of benefit and advantage of redemption or claim in or to the residue of a term of five hundred years in the mortgaged premises in the said bill described.^ That said Thomas Wood being served with process, appeared to said bill and died on the 1st day of July, 1916, without having put in his answer thereto. And the plaintiff herein by way of supplement to the original bill, shows that said Thomas Wood died intestate, leaving his wife Elizabeth Wood, enceinte, with a child since born and named Amelia Wood, who is now the sole heiress-at- law of him the said Thomas Wood, and as such entitled to the reversion of the freehold part of said mortgaged prem- (1) The bill of revivor is obsolete. Rule 45 provides for reviving a suit by motion instead of bill. Supplemental bills and bills of re- vivor might be filed by a defendant as well as by a plaintiff. See a form in Daniell's Ch. PI. & Pr., vol. 3, p. 2060. (2) The original bill was for a strict foreclosure, unknown to mod- em practice. (3) The mortgagor instead of granting the fee, had pledged a term of years as security. 168 FOEMS OF BILLS NOT ORIGINAL. ises expectant upon the determination of said term of five hundred years. And the plaintiff herein further shows that on the 1st day of August, 1916, letters of administra- tion of the goods, chattels and effects of the said Thomas Wood, deceased, were duly granted to his widow, the said Elizabeth Wood. 2. And the plaintiff herein further shows that the orig- inal plaintiff, Henry Wallace, departed this life on July 31, 1916, having previously duly made his last will and testa- ment whereby he appointed the plaintiff herein his execu- tor ; and the plaintiff herein has proven said will and re- ceived letters testamentary from the probate branch of this court and duly qualified as the executor thereof. 3. And the plaintiff herein further shows that upon the death of the said Henry Wallace the term of five hundred years became vested absolutely at law in the plaintiff as his personal representative, subject nevertheless to re- demption on payment of the principal money and interest thereby secured. And he further shows that the said suit having become abated by the death of the parties thereto, he, as the personal representative of the said Henry Wal- lace, deceased, is entitled to have the same revived and re- stored as against the said Elizabeth Wood and Amelia Wood, as is prayed in the original bill.* Wherefore the plaintiff prays: 1. That process issue and be served upon the said Eliza- beth Wood and said Amelia Wood, commanding them to appear and make answer both to this bill and the original bill. 2. That a guardian ad litem be appointed for the infant defendant Amelia Wood. 3. That this suit stand and be revived against the said defendants and be in the same condition in which it was at the time of the decease of the said defendant Thomas Wood and that the plaintiff have the same relief against the said defendants as was prayed in the original bill. (4) The allegations of par. 3 are mere conclusions of law; need not have been alleged, and need not be answered. If the facts stated in the previous paragraphs are not sufficient to entitle the plaintiff to a revivor, the bill must be dismissed. FORMS OF BILLS NOT 0EI6INAL. 169 4. And for such other and further relief as the nature of the case may require. RICHARD WILSON, Executor, Plaintife. WALTER SPENCER, Attorney. (Jurat.) (Caption.) Bill of Review (Errors of Law). The plaintiff respectfully shows to the court as follows : 1. (Same as in bill on page ante.) 2. That on the day of , W. S., of , de- fendant herein named, filed his bill of complaint in this honorable court against the plaintiff, and thereby set forth that ( insert substance of the original bill ) . And the plain- tiff being served with the proper process for that purpose appeared and put in his answer to the said bill, to the effect following: (insert substance of answer). And the said W. S. replied to the said answer, and issue having been joined, and witnesses examined, and the proofs closed (or joined issued on the answer), the said cause was set down to be heard and was heard before this honorable court on the day of , when a decree was pronounced, which was afterwards passed and entered, in which it was set forth and recited, that it was at the hearing on the plaintiff's behalf, insisted that the plaintiff had, by his an- swer set forth that (insert the recital and decree). And the said decree has since, and on or about the day of , been duly signed and enrolled, which said decree the plaintiff insists is erroneous and ought to be reviewed, reversed and set aside for many apparent errors and im- perfections, inasmuch as it appears. (Insert Errors of Law.) And no proof being made thereof, no decree ought to have been made or grounded thereon, but the said bill ought to have been dismissed for the reasons aforesaid. Wherefore the plaintiff prays as follows : 1. (Prayer for process, as in bill .) 170 FORMS OF BILLS NOT OEIGINAL. 2. That for reasons and under the circumstances afore- said, the said decree may be reviewed, reversed, set aside, and no further proceedings taken thereon, and the plain- tiff permitted to remain in the undisturbed possession and enjoyment of the said property. 3. And for such other and further relief as the nature of the case may require. JOHN EAND, Plaintiff. WALTER SPENCER, Attorney. Jurat, as in case . (Caption.) Bill of Review (New Matter). The plaintiff respectfully shows to the court as follows : 1. ( Same as in bill on page ante. ) 2. (Same allegations as in bill of review on page 169 ante, with reference to original bill, answer, hearing and decree. Following with statement.) And the plaintiff showeth unto this honorable court, leave of court being first had and obtained for that purpose, by way of supple- ment, that since the signing of the said decree of reversal, the plaintiff has discovered, as the fact is, that the said E. F., was, in his lifetime, seized in his demesne as of fee, of and in the hereditaments and premises in question in the said cause, and that the said E. F., while so seized, and when of sound mind, duly made and published his last will and testament in writing, bearing date on the day of , which was executed by him, and attested according to law, and thereby gave and devised unto the said J. W., his heirs and assigns, forever, to and for his and their own absolute use and benefit, the said hereditaments and prem- ises in question in the said cause (to which the plaintiff claims to be entitled as purchaser thereof from the said J. W. ) . And the plaintiff further shows that since the said decree of reversal was so made, signed and enrolled, as aforesaid, and on or about the day of , the said C. D. departed this life, intestate, leaving G. H., of , the defendant herein named, his heir-at-law, who, as such, claims to be entitled to the said hereditaments and prem- ises, in exclusion of the plaintiff. And the plaintiff is ad- FORMS OF BILLS NOT ORIGINAL. 171 vised and insists that, in consequence of the discovery of such new matter as aforesaid, the decree ought to be re- viewed and reversed; and that the first decree declaring the plaintiff entitled to the said hereditaments and prem- ises should stand, and be established and confirmed; and for effectuating the same, the said several proceedings, which became abated by the death of the said C. D., should stand and be revived against the said G. H., as his heir- at-law. Wherefore the plaintiff prays : 1. (Prayer for process, as in bill ante.) 2. That the said suit may be revived against the said G. H., or that he may show good cause to the contrary, and that the said last decree, and all proceedings thereon, may be reviewed and reversed, and that the said first-mentioned decree may stand and be established and confirmed, and be added to, by the said will being declared a good and effec- tual devise of such hereditaments and premises as afore- said; and that the said G. H. may be decreed to put the plaintiff into possession of the said hereditaments and premises, and in the same situation, in every respect, as far as circumstances will now permit, as the plaintiff would have been in case such last decree had never been pro- nounced and executed. 3. And that the plaintiff may have such other and fur- ther relief as the nature of the case may warrant. JOHN BAND, Plaintiff. WALTER SPENCER, Attorney, Jurat, as in case . (Caption.) Bill to Impeach a Decree on Account of Fraud. The plaintiff respectfully shows to the court as follows : 1. (Same as in bill on page ante.) 2. That T. B., of , deceased, the plaintiff's late father, during his life, and on or about day of , was seized in his demesne as of fee of and in the real estate hereinafter particularly described, and by indenture of that date made between the said T. B., of the one part, and C. D., the defendant herein named, of the other part, the 172 FOEMS OF BILLS NOT ORIGINAL. said T. B., in consideration of |10,000, bargained, sold and conveyed unto the said T. B., his heirs and assigns, all (de- scribe the mortgaged premises), subject to redemption on payment of the said principal money and lawful interest, at the time therein mentioned and long since passed, as by the said indenture, reference thereto being had, will more fully appear. That the said T. B. departed this life on or about the day of , leaving the plaintiff his heir-at-law, and only child, then an infant under the age of 21 years, to wit, of the age of 7 years, or thereabouts, him surviving. That during the plaintiff's minority, on or about , the said C. D. filed his bill of complaint in this honorable court against the plaintiff for a foreclosure of the plain- tiffs right and equity of redemption in said mortgaged premises; that the plaintiff was not represented in such bill to be then an infantry; and the said C. D. caused and procured one L. M., since deceased, who acted in the man- agement of the affairs of the plaintiff's said father, to put in an answer in the name of the plaintiff, and without ever acquainting the plaintiff or any of his friends or relations therewith ; in which said answer a much greater sum was stated to be due from the plaintiff on the said mortgaged security to the said CD. than in fact was really owing to him, and for which it was untruly stated that the said mortgaged premises were not a sufficient security, and in consequence of such answer being put in, the said C. D. afterwards, in conjunction with the said L. M., on or about obtained an absolute decree of foreclosure against the plaintiff, which the plaintiff has only lately discovered, and of which the plaintiff had no notice, and in which said decree no day is given to the plaintiff, who was an infant when the same was pronounced, to show cause against it when he came of age, as by the said proceedings, reference thereto being had, will more fully show. That the plaintiff on the day of , last, having attained the age of 21 years, and having shortly thereafter discovered the transactions as aforesaid, represented the same to the said C. D., requested him to deliver up posses- sion of the said mortgaged premises to the plaintiff, on be- ing paid the principal money and interest, if any, actually and fairly due thereon, which the plaintiff offered and has FORMS OF BILLS NOT ORIGINAL. 173 at all times been ready to pay, and which would have been paid by the personal representatives of the said T. B., out of his personal assets during the plaintiff's minority, had any application been made for that purpose. Wherefore the plaintiff prays as follows : 1. ( Prayer for process. ) 2. That the said decree of foreclosure may for the rea- sons and under the circumstances aforesaid, be set aside, by this honorable court, and declared to be fraudulent and void ; and that an account may be taken of what, if any- thing, is now due to the said C. D., for principal and in- terest, on the said mortgage, and that an account may also be taken of the rents and profits of the said mortgaged premises, which have, or without his wilful default, might have been received by, or on behalf of the said C. D., and if the same shall appear to have been more than the prin- cipal and interest due on the said mortgage, then that the residue thereof may be paid over to the plaintiff, and that the plaintiff may be at liberty to redeem said mortgaged premises on payment of the principal and interest, if any remaining due on the said security, and that the said C. D. may be decreed on being paid such principal money and interest, to deliver up possession of the said mortgaged premises, free from all incumbrances, to the plaintiff, or as he shall appoint, and to deliver up all title deeds and writings relating thereto. 3. And for such other and further relief as the nature of the case may require. JOHN RAND, Plaintiff. WALTER SPENCER, Attorney, Jurat, as in case . (Caption.) Bill to Suspend a Decree. The plaintiff respectfully shows to the court as follows : 1. (Same as in bill on page ante.) 2. That the plaintiff on the day of , bor- rowed the sum of |1,000 from C. D., of , the defend- ant herein, and in order to secure to the said C. D., the repayment thereof, with legal interest, the plaintiff by an 174 FOEMS OF BILLS NOT ORIGINAL. indenture bearing date the day of (set out mortgage), bargained, sold and conveyed unto the said C. D., the real estate named and described in the said inden- ture, subject to redemption on payment by the plaintiff of the said sum of $1,000, and interest as therein mentioned, as by the said indenture, reference thereto being had, will more fully appear. That the said C. D., on or about , filed his bill of complaint before this honorable court against the plaintiff, for payment of what was then due to him for principal and interest, on the said security, or that plaintiff might be ab- solutely debarred and foreclosed from all right and equity of redemption in the said mortgaged premises, and the plaintiff, haying put in his answer thereto and submitted to pay what should appear to be due from him, the same cause came on to be heard before this honorable court on or about , and the plaintiff was ordered to pay the same on the day of , or to be absolutely fore- closed of all right and equity of redemption in the said mortgaged premises, as appears by the record in this cause. And the plaintiff further shows that he was duly pre- pared and ready to pay as decreed by the court, but that before said decree the plaintiff was sent on a diplomatic mission by order of the Secretary of State, on a matter which admitted of no delay, and the plaintiff was there- fore unable to make any provision for the payment of what should be so found due from as aforesaid. And the plaintiff further shows that according to the decree the sum of |1,060 was due to the said 0. D. for prin- cipal and interest from the plaintiff, but no further pro- ceedings have since been taken in the said cause. And the plaintiff, being ready and willing to pay the said sum of $1,060, to the said C. D., and all subsequent interest thereon, is advised that on payment thereof, he is entitled under the circumstances aforesaid to have so much of the said decree as relates to the foreclosure of the plaintiff's right and equity of redemption in the said mortgaged premises suspended and on payment thereof to have a re- conveyance of the said mortgaged premises from the said C. D. FORMS OF BILLS NOT ORIGINAL. 175 Wherefore he prays as follows : 1. (Prayer for process.) 2. That the subsequent interest on the said sum of $1,- 060, so reported to be due from the plaintiff as aforesaid, to the present time, may be computed by direction of this honorable court and that on the payment of the said sum of |1,060 and such interest as aforesaid, the said decree of foreclosure may be suspended and the said C. D. directed at the expense of the plaintiff to reconvey the said mort- gaged premises to the plaintiff, or as he shall appoint, freed and absolutely discharged from the said mortgage. 3. And for such other and further relief as the nature of the case may require. JOHN KAND, Plaintiff. WALTEE SPENCEE, Attorney, Jurat, as on page . ( Caption. ) Bill to Carry a Decree into Execution. The plaintiff respectfully shows to the court as follows : 1. ( Same as in bill on page ante. ) 2. That the plaintiff on or about , filed his bill of complaint in this honorable court against E. B., stating (set out substance of a bill of partition and prayer) . That due process having been served upon the said E. B., he appeared and put in his answer to said bill, to which an- swer a replication was filed, and said cause being duly at issue, the same came on to be heard and was heard, before this honorable court, on the day of , when an order and decree was made that a commission should issue to certain commissioners, to be therein named, to make partition of the estate in question, who were to take depo- sitions of witnesses to be examined by them, in writing, and return the same with the said commission; and that the said estate was to be divided and separated, and one- third part thereof set out in severalty and declared to be- long to the said E. B. and his heirs; and the remaining two-thirds thereof declared to belong absolutely to the plaintiff, to be held in severalty by him ; and the respective parties were decreed to convey their several shares to each 176 FORMS OF INTERLOCUTORY ORDERS AND DECREES. other, to hold in severalty according to their respective un- divided shares thereof; and that it should be referred to H. E., one of the masters of this court, to settle the con- veyances in case the parties differed about the same, as by said proceedings and decree now of record in this honor- able court, reference thereto being had, will more fully appear. The plaintiff further shows that the commission awarded by said decree never issued, on account of the said E. B. going abroad and being, until lately, out of the jurisdic- tion of this honorable court, but the said E. B. having since returned, and the inconvenience mentioned in the plain- tiff's former bill for partition still subsisting, the plaintiff is desirous of having the said decree forthwith carried into execution, but from the great length of time which has elapsed and the refusal of the said E. B. to concur therein, the plaintiff is advised the same cannot be done without the assistance of this honorable court. Wherefore the plaintiff prays : 1( Prayer for process.) 2. That the said decree may be directed to be forthwith carried specifically into execution, and the said E. B. or- dered to do and concur in all necessary acts for that pur- pose. 3. And for such other and further relief as the nature of the case may require. JOHN RAND, Plaintiff. WALTER SPENCER, Attorney, Jurat, etc., as on page . Forms of Interlocutory Orders and Decrees. IN THE SUPREME COURT OF THE DISTRICT OF COLUMBIA. Plaintiff,"^ vs. Y In Equity No. . Defendant. J Subpoena to Answer. THE PRESIDENT OF THE UNITED STATES, TO FORMS OF INTEBLOCUTOET ORDERS AND DECREES. 177 Defendant. You are hereby commanded to appear in this court on or before the 20th day, exclusive of Sundays and legal holi- days, after the day of the service of this SUBPCENA upon you and answer the exigency of the Bill, under pain of attachment and such other process of contempt as the court shall award; and if your appearance in this suit be not entered in the clerk's office within said time the bill may be taken for confessed. WITNESS, the Honorable J. Harry Covington, Chief Justice of said Court, the day of , A. D. 191 — . , Clerk By Assistant Clerk. , Attorney. (Caption.) Alias Writ of Subpoena. The President of the United States, To Defendant. You are hereby commanded, as you have heretofore been commanded to appear in this court on or before the 20th day, exclusive of Sundays and legal holidays, after the day of the service of this subpoena upon you and answer the exigency of the Bill, under pain of attachment and such other process of contempt as the court shall award ; and if your appearance in this suit be not entered in the clerk's office within said time the bill may be taken for confessed. WITNESS, the Honorable J. Harry Covington, Chief Justice of said Court, the day of , A. D. 19 — . JOHN K. YOUNG, Clerk. , Asst. Clerk. , Attorney. ( Caption. ) Order of Publication for Appearance of Non-Resident Defendant. The object of this suit is (here state it). On motion of the plaintiff, it is this day of , 191 — , ordered that the defendant cause — h — ap- 12 178 FORMS OF INTERLOCUTORY ORDERS AND DECREES. pearance to be entered herein on or before the fortieth day, exclusive of Sundays and legal holidays, occurring after the day of the first publication of this order; otherwise the cause will be proceeded with as in case of default. Pro- vided, a copy of this order be published once a week for three successive weeks in the Washington Law Eeporter, and the before said day. Justice. (Caption.) Order of Publication for Unknown Defendants. The object of this suit is (here state it). On motion of the complainant, — it is this day of , 190 — , ordered that the defendant cause — h — appearance to be entered herein on or before the first rule day occurring after the expiration of months from this date, otherwise the cause will be proceeded with as in case of default. Provided, a copy of this order be published a month for months in the Wash- ington Law Eeporter, and the before said day. J Justice. ( Caption. ) Subpoena for Witness. The President of the United States, to You are hereby commanded to appear as witness for the before , Examiner, at , on the day of , 19 — , at o'clock — M., and not depart without leave. WITNESS, the Honorable Harry M. Clabaugh, Chief Justice of said court, this day of , A. D. 19 — . , Clerk. By Asst. Clerk. . (Caption.) Subpoena Duces Tecum. The President of the United States, to Greeting : You are hereby commanded to appear as witness for the FOEMS OF INTERLOCUTORY ORDERS AND DECREES. 179 before , at , the day of , 191 — , at — o'clock — M., and bring with you and not depart without leave. Witness, the Honorable J. Harry Covington, Chief Jus- tice of said court, this day of , A. D. 191 — . ..., Clerk. By Asst. Clerk. ( Caption. ) Praecipe for Appearance. The clerk of said court will enter appearance for defendant Attorney. (Caption.) Commission for Appointment of Guardian Ad Litem. The President of the United States, to . , Greeting: Know ye that, because, by a special order of said court in the above-entitled case, you have been assigned to ap- point a guardian for the defendant alleged to be under the age of twenty-one years, and by said guardian to take the answer of said infant defendant : These, therefore are to empower you, or any two of you, to go to said defendant , if cannot conveniently come to you, and appoint a guardian for said infant and take the answer of said infant , by such guardian, upon his oath or affirmation, to be administered by you, or any two of you ; and having so done, you are to send the same, closed up under your seals, together with your certificate of your having appointed such guardian as aforesaid, to the said court without delay. Witness , Chief Justice. , Clerk. We, whose names are hereunto subscribed, in pursuance of the foregoing commission to us directed, did, on the 180 FOEMS OF INTERLOCTTTOEr ORDERS AND DECREES. day of , 18 — , cause the infant in the said commission named, to come before us at , in the county of , in the State of ; and we then and there assigned to be guardian to answer and defend this suit on behalf and the answer of the said , the said infant was taken and the said as guardian, was duly sworn to the truth thereof, at the time and place aforesaid and by virtue of the said commission. Before us Commissioners. (Caption.) Answer of Infant by Guardian Ad Litem. The answer of guardian ad litem for defendant to the bill of complaint of complaint, filed against he and others in the Supreme Court of the District of Columbia, No. Equity. The said defendant say that he infant under the age of twenty-one years, and that he claim such inter- est in the premises as he entitled to, and submit said interests to the protection of this honorable court, and pray to be hence dismissed with reasonable costs. Guardian. Subscribed and sworn before us the day of 18—. Commissioners. (Caption.) Commission to Take Depositions. THE PRESIDENT OF THE UNITED STATES, TO Greeting : You have been duly appointed and you are hereby au- thorized at a certain day and place, or certain days and FOKMS OF INTERLOCUTOEY OEDERS AND DECREES. 181 places, to be designated by you, to cause to come before you, and tlien and there examine on oath or affirmation, upon the interrogatories and cross- interrogatories annexed to this commission (or orally), as witness . . for the in the above-entitled cause ; to reduce testimony to writing and cause the same to be signed by said witness . . ; and annex said testimony hereto, close the same under your seal, and make return hereof unto this court with all convenient speed. WITNESS, the Honorable , Chief Justice of said court, the day of , A. D. 191... , Clerk. By , Asst. Clerk. Commissioner's Return. I, , the person named as Commissioner in the foregoing commission, upon oath de- pose and say that: "I shall, according to the best of my skill and knowledge, truly, faithfully and without parti- ality to any or either of the parties, take the ex- aminations and depositions of every witness pro- duced and examined by virtue of the commission hereunto annexed (orally) (upon the interrog- atories now, or which may hereafter, before the said commission is closed, be produced to and left with me, by either of the parties), so help me God." Subscribed and sworn to before me, a , in and for the County of , State of at , in said County ( SEAL) and State, on the day of , A. D. 19 . ., by the said the person named as commissioner in the aforegoing commission. 182 FOEMS OF INTEELOCUTOEY OEDEES AND DECREES. WITNESS MY HAND AND OFFICIAL SEAL. At the execution of the foregoing commission, I, , the commissioner therein named, first duly took the foregoing oath at the time and place and before the officer as above set forth. I then pro- ceeded on the day of , in the year of our Lord nineteen hundred and ( 19 . . ) , at the office of , in City (Town) of , and State of , at .... o'clock . . M., under the said commission, pursuant to no- tice (and in the presence of the counsel of the respective parties), to take the following deposition, that is to say: , a witness of lawful age, produced on behalf of the , being by me first duly sworn according to law, being examined (orally) on the following interrogatories to him (her) pro- pounded in that behalf, makes oath, deposes and says as follows, that is to say : (the counsel for the parties having first consented that the testimony taken under the said commission should be taken down stenographically and re- duced tp typewriting). I FUETHER CERTIFY That then and there at the times and places named, the testimony of each of the said witnesses was reduced to writing (as per agreement of counsel) and the testimony of each of the said witnesses was by .... read over and by signed in my presence, and that I have annexed to the said tes- timony the commission to me issued, and notice of the tak- ing of such testimony. AND I FURTHER CERTIFY That my fees for taking said testimony are $ , which have been paid by the , and that I am not of counsel for either party to this cause or interested in the event of the suit; and that I am now about to close the same with said com- mission under my seal, and being unable to personally re- turn the same to the Supreme Court of the District of Co- lumbia I shall now place the said deposition in a sealed en- velope directed to the clerk of the SUPREME COURT OF THE DISTRICT OF COLUMBIA, and deposit the same, with postage prepaid, in the United States mail. FOEMS OF INTBSLOCUTOEY ORDERS AND DECREES. 183 WITNESS my hand and seal this .... day of , A. D. 19... (SEAL) , Commissioner. (Caption.) Writ Appointing Commissioners in Partition. THE PRESIDENT OF THE UNITED STATES, TO You have been appointed, by said court, to adjudge and determine whether said estate will admit of being divided between said parties without injury and loss to all of them ; and if, in your opinion and judgment, said estate can be so divided, then to divide and make partition of the same fairly and equally in value, between all the parties inter- ested, according to their several just proportions; and if you, or a majority of you, determine that said estate can- not be divided without loss to all the parties, then, to make return to the court, of your said judgment, and the reasons upon which the same is founded, and the real value of the estate in current money : And, therefore, you are hereby authorized and com- manded to meet together at certain proper and convenient times and places, by you to be appointed, of which meeting or meetings you are to give reasonable notice to all parties concerned, before any proceeding be had, and having taken and subscribed the oath hereto annexed you are to go from the place of your meeting to, and enter upon, and walk over, the estate in question ; and if the estate to be divided consist of lands, and you, or a majority of you, determine that said land, and you, or a majority of you, determine that said lands can be divided without loss and injury to all of the parties, then you shall cause the same to be sur- veyed and laid out by the county surveyor, or such other person as you may think qualified, for the several parties, and allot them, respectively, their several shares of said lands, and if the estate consist of more tracts of land than one, then you shall make the division so as not to split the several tracts, if it can be done consistently with equality ; and if it cannot be exactly done in that mode, then you shall add so much of the larger or more valuable tracts to the less valuable as will make the portions equal in 184 FORMS OF INTBELOCUTOBY OEDEKS AND DBCEEES. value. And if the estate to be divided consist of houses, you shall make allotment and partition thereof as afore- said between the parties. And after having made allot- ment or partition in manner aforesaid, you are to return your proceedings to the said court at its next term to hap- pen thereafter. And if you, or a majority of you, deter- mine, that the estate cannot be divided without loss to all the parties, then you are to make return to said court, at said term, of your said judgment, and the reasons upon which the same is formed, and the real value of the estate in current money. And in ascertaining the value of the estate, whether you decide that it can or cannot be divided, you are to take into consideration any incumbrances on the land. If the estate be incumbered with a dower interest, you are to ascertain the same, and distinguish by metes and bounds distinctly set forth ; and if the estate can not be divided, and so returned, and the widow consents that the whole estate may be sold, you are to state the fact in your certificate hereinafter mentioned. And for the better making of such division, and to facili- tate the performance of your duty in the premises, you are empowered to cause all such witnesses as you shall see oc- casion for, to come before you, and examine each of them apart, upon his or her oath or affirmation, first taken be- fore you, upon such interrogatories, in writing, as you shall see occasion for, to discover and make out the truth of the premises, and to take the depositions of such witnesses in writing, plainly and fairly set forth, each deposition to be signed by the witness who makes it. And when you have done all these things, certify and return into said Supreme Court, without delay, the facts and proceedings in the premises by your certificate, fairly written, together with such examinations and interrogatories, and also this writ, closed up under your seals, or the seals of a majority of you. WITNESS, the Honorable Chief Justice of said court, the .... day of A. D., 19... , Clerk. By , Asst. Clerk. FORMS OF INTERLOCUTORY ORDERS AND DECREES. 185 Oommissioner's Oath. We swear, well and truly, and without favor, partiality, or prejudice, to adjudge and determine whether the estate within mentioned will admit of being divided without in- jury to all the parties entitled ; and that, if we so decide, we will then divide and make partition of the same fairly and equally in value between all the parties interested, ac- cording to their several just proportions; and if we de- termine that the estate cannot be so divided, then we will make return to the court of the reasons upon which our said judgment is formed, and of the real value of the es- tate in current money. Subscribed and sworn to before me this day of ,19... , Clerk. By , Asst. Clerk. (Caption.) Decree for Sale of Real Estate. This cause coming on to be heard at this term upon the pleadings and testimony, and having been submitted, and considered by the court, it is, this .... day , A. D. 19 . . , adjudged, ordered and decreed that the real estate mentioned and described in the bill of complaint, as follows be sold ; that be, and . . he hereby appointed trustee . . to make said sale, giving bond in the penalty of dollars ($ ) ; and that the advertisement of said sale be made in the newspaper. 186 FORMS OF INTEELOCUTOBY ORDERS AND DECREES. It is further ordered that the provisions of Equity Eule No. 72^ be in all respects complied with > Justice. (Caption.) Order of Ratification Nisi. and , trustees, having reported sale of sale of situate in the of Washington, District of Columbia, to for dollars and cents (f ) (2 ) it is this day of 19 . . , ordered that said sale be ratified and confirmed by the court, unless cause to the contrary be shown before the day of , 19 ... , provided a copy of this order be published in each of three successive issues of the Washington Law Reporter, and prior to the expiration of said period. , Justice. True Copy. Test: , Clerk. By , Asst. Clerk. (Caption.) Undertaking by Non-Resident for Security for Costs. The plaintiff, and ., his surety, appear, and, submitting to the jurisdiction of the court, hereby undertake for themselves and each of them, their and each of their heirs, executors, administrators, successors, and assigns, to make good all costs and charges that the defendant may be put to in case the plaintiff is (1) This refers to Eq. Kule 72 of Supreme Court of the District of Columbia. (Note. — The rules generally provide that no temporary restraining order or preliminary injunction shall be effective until the plaintiff files an undertaking with surety to be approved by the court, con- ditioned to save the defendant harmless from any loss suffered by rea- son of inequitably suing out the injunction.) FORMS OF INTEELOCUTORY ORDERS AND DECREES. 187 nonsuited, or judgment be given against him ; and they further agree that such judgment against the plain- tiff may be rendered against all the parties whose names are hereto afSxed. Approved, , 19 , , Justice. ( Caption. ) Injunction Undertaking. , the plaintiff, and sureties, hereby undertake to make good to the defendant all damages by him suffered or sustained by reason of wrongfully and in equitably suing out the injunction in the above-entitled cause and stipulate that the damages may be ascertained in such manner as the court shall direct, and that, on dis- solving the injunction the court may give judgment thereon against the principal and sureties for said damages in the decree dissolving the injunction, or in a further decree after ascertainment of the amount of said damages. Approved, 19 . . . , Justice. ( Caption. ) Writ of Ne Exeat. THE PEESIDENT OF THE UNITED STATES, TO THE UNITED STATES MARSHAL FOR THE DIS- TRICT OF COLUMBIA, Greeting: Whereas, it appears to the court that the defendant . . . has abandoned the complainant, his wife, and failed and refused to support her, and designs quickly to leave the District of Columbia and the jurisdic- tion of this court to go to the distant States, or into parts to said complainant unknown, for the purpose of avoiding the claim of said complainant, as appears by oath of the 188 FORMS OF INTEELOCUTOEY OEDEES AND DECEEBS. complainant made in her petition herein, which tends to the great prejudice and damage of the said complainant: THEREFOEE, in order to prevent this injustice YOU ARE HEREBY COMMANDED, without delay, to cause the said defendant to come personally before you and to give security in the sum of that the said will not go or attempt to go beyond or without the District of Columbia or the jurisdiction of this Court without leave therefrom ; and in case the said shall refuse or fail to give said security then you are to commit him, the said to the United States jail in said District, there to be kept until he shall do it of his own accord ; and when you shall have taken such security you will forthwith make return of this writ showing how you have executed the same. WITNESS, the Honorable J. Harry Covington, Chief Justice of said Court, this .... day of , 191 . . . John Bright, Plaintiff. "^ vs. y Equity No. . John W. Boyd, Defendant. Order Referring Cause to Master. This cause coming on to be heard, and having been ar- gued and submitted, it is by the court this 1st day of June, 1915, adjudged and declared, that the plaintiff is the pur- chaser for a valuable consideration, of a defective title to the land described in these proceedings, without notice of the defect therein, and it is further declared that improve- ments have been made to the land aforesaid by the plaintiff or his grantors under a mistake as to the title thereto and that the plaintiff is entitled to relief in equity to the extent of the value of said improvements ; it is therefore ordered that this cause be referred to Henry Williams, Master in Chancery, to ascertain and report the character and value of said improvements, by whom made, and at what time they were made ; that he ascertain and report the value of the rents and profits of the land on which said improve- ments are located, and state an account thereof; that he ascertain and report the present value of the said land FORMS OF INTERLOCUTORY ORDERS AND DECREES. 189 without the improvements and how far the value thereof is increased by said improvements, and that further orders decrees in the premises be reserved until the coming in of the report. WILLIAM JAY, Justice. John Bright, Plaintiff. vs. L In Equity No. . John W. Boyd, Defendant. Report of the Master. The Master to whom it was referred to ascertain the character and value of the improvements on the lot in con- troversy by whom made, and at what time they were made, and to ascertain and report upon the value of the rents and profits of the land on which said improvements are made, and state an account thereof, also, to ascertain and report the present value of the land without the improvements : reports that, as far as he has been able to ascertain, the improvements upon said lots were made by John E. Mar- shall; they consist of a double wooden tenement of two stories, which was built in the years 1894 and 1896, and completed in the early part of the summer of 1897; that the said improvements are worth two thousand five hun- dred dollars ; and that the land without the improvements would be worth at this time one thousand dollars; and that the land with the improvements is now worth three thousand five hundred dollars, so that the value of the land is increased by the improvements two thousand five hun- dred dollars; and that, in his opinion, there would have been no rents and profits from said land if no improve- ments had been made thereon. HENRY WILLIAMS. John Bright, Plaintiff. T vs. > In Equity No. . John W. Boyd, Defendant. J Exceptions to Master's Report. Comes now the defendant John W. Boyd, and exhibits 190 FORMS OF INTERLOCUTORY ORDERS AND DBCKBES. these his exceptions to the report of the Master filed herein on the 1st day of July, 1915. First Exception : For that the said Master excluded over the objection of this defendant the testimony of A, B and C, who were duly qualified as experienced in real estate values, and who would, if permitted, have testified in response to the questions appearing on page 40 of the record of the testimony taken before him, that, etc. (stating what was expected to be shown by the testimony excluded). Second Exception : For that said Master admitted over objection of this defendant the testimony of the wit- nesses D, E and F, appearing on pages 10 to 20, in- clusive, of the record of testimony, and whose testi- mony is incompetent, because (state reasons) and is irrelevant and immaterial because (state rea- sons). Third Exception : For that said Master erred in his find- ings of fact by declaiming, etc. (state the erroneous findings pointing the error specifically). Fourth Exception: For that said Master erred in his conclusions of law by holding, etc. ( state specifically the error of law). Wherefore, the said defendant excepts to said report and prays thereon the judgment of this court. WALTER SPENCER, Attorney for John W. Boyd. John Doe, "| vs. V- In Equity No. . Richard Roe. J Order for a Feigned Issue. This cause coming on to be heard and having been ar- gued, it is by the court this 1st day of June, 1916, ordered that a feigned issue be formed and tried between the par- ties, by a jury, at the next circuit term of this court, to be held on the 1st Tuesday in October next, to inquire and determine whether the deed mentioned in the pleadings in this cause, bearing date on the 1st day of May, 1913, and purporting to have been executed by John Smith, and his wife, to the plaintiff, was executed by the said John Smith FOBMS OF INTERLOCUTORY ORDERS AND DECREES. 191 and his wife ; and whether the same was delivered by the said grantors to the said grantee therein ; and it is further ordered that the attorney for the plaintiff herein frame the said issues and serve a copy thereof upon the defendant's attorney, and that unless the form of such issues shall be agreed upon by the attorneys for the respective parties within ten days after such service the same shall be re- ferred to one of the masters of this court to settle such is- sues and report the same. And it is further ordered that on the trial of the said feigned issues, either party is to be at liberty to examine any witnesses whose testimony so heard or read upon the hearing of this cause, or to read their depositions heretofore taken if they are dead or out of the jurisdiction of the court. And either party is to be at liberty to read the depositions of any witnesses of the opposite party which were read on the hearing of this cause. That the said issues be so framed that the plaintiff herein may hold the affirmative of the questions above stated, and be at liberty to open and close the argument on the trial. Either party is to be at liberty to set the cause for trial, and neither party is to be at lib- erty to put it off without sufficient cause shown and on the usual terms. And all further directions are reserved until after the trial of the said issues. WILLIAM JAY, Justice. Walter M. Ward, Plaintiff, 1 vs. > In Equity No. . John George Wilson, Defendant. J Temporary Restraining Order. The defendant is hereby restrained as prayed in the bill filed herein until the further order of the court to be made, if at all, after the hearing which is fixed for the 18th day of October, 1916. By the Court : WILLIAM JAY, Justice. 192 FORMS OF INTEELOCUTOEY OEDEES AND DBCEBBS. Walter M. Ward, Plaintiff, ^ vs. f -"^^ Equity No. . John George Wilson, Defendant. J Rule to Show Cause. Upon consideration of the bill of complaint filed herein, it is by the court, this 1st day of June, 1916, ordered that the defendant show cause on or before the 6th day of June, 1916, why he should not be restrained and enjoined as prayed in said bill, provided a copy of this order be served upon him at least two clear days before the day aforesaid. WILLIAM JAY, Justice. Walter M. Ward, Plaintiff, "^ vs. > In Equity No. . John George Wilson, Defendant. J Preliminary Injunction, or Injunction Pendente Lite. This cause coming on to be heard upon the bill of com- plaint and rule to show cause issued thereon, the answer filed thereto, and the affidavits on behalf of the respective parties filed herein, and having been duly argued and con- sidered, it is by the court ordered, adjudged and decreed that the defendant be and he hereby is restrained and en- joined as prayed in the bill until a final hearing of the cause. WILLIAM JAY, Justice. In Equity No. Phoenix Mutual Life Insurance Co., Plaintiff, vs. Arthur J. Clark, Administrator of the Estate of Mary Doe, dec'd, and Lucius L. Mason, Administrator of the Estate of John Doe, dec'd. Defendants. j Decree of Interpleader. This cause coming on to be heard on motion of the plain- tiff for leave to pay into court the money payable under FORMS OF INTERLOCUTORY ORDERS AND DECREES. 193 the policy, set forth in the bill, and it appearing to the court that the answers of both defendants have been filed and that the plaintiff holds the said moneys for the benefit of the true owner without having or claiming any interest therein, it is ordered, adjudged and decreed by the court this 1st day of June, 1916, that the plaintiff pay the said sum of money into the registry of the court, and that upon payment thereof, the plaintiff stand hence dismissed with his costs in this behalf sustained, including a reasonable attorneys fee, which is hereby fixed at the sum of $ . And it is further ordered, adjudged, and decreed that the defendants and each of them be, and they hereby are, re- strained and enjoined pendente lite and permanetly from instituting any proceedings or action against the plaintiff in respect of any money alleged to be due on the policy in the bill mentioned. And it is further ordered, adjudged and decreed that the defendants proceed as between themselves for the deter- mination of the dispute as to the ownership of the money due under said policy. And this cause is restrained for that purpose. WILLIAM JAY, Justice. John Bright, Plaintiff, ^ vs. y In Equity No. . John W. Boyd, Defendant. J Final Decree. This cause coming on to be heard upon the exceptions to the Masters report, and the same having been duly argued, it is by the court, this 1st day of October, 1915, adjudged, ordered and decreed as follows: 1. That said exceptions be and they hereby are over- ruled, and said Master's report is in all respects confirmed. 2. That the improvements mentioned on the lot in con- troversy to the value of |2,500.00 are hereby declared a lien upon the whole of the premises described in the bill, and that unless the same be discharged within thirty days from the date hereof, the whole of said premises shall be sold, the proceeds aplied to the discharge of said lien, and 13 194 FORMS OF INTERLOCUTORT ORDERS AND DECREES. the costs of this suit, and the balance thereof if any paid over to the defendant. And it is further ordered that all further orders and decrees in the premises be reserved until the further order of the court. WILLIAM JAY, Justice. (Caption.) Writ of Assistance. THE PKESIDENT OF THE UNITED STATES, TO THE MAESHAL FOE SAID DISTEICT, Greeting: The defendant , in this cause, having been, by decree or order of court here- in, pronounced on the .... day of , A. D. 19 . . , com- manded to deliver possession to the complainant , , of the premises in said de- cree or order described, to wit and proof having been made by affidavit of demand, and refusal by said defendant to obey said decree or order; NOW, THEEEFOEE, you are hereby commanded that, immediately after the reception of this writ, you enter into and upon the premises aforesaid, and thence eject and re- move all and every person or persons, holding possession of the same against the tenor of said decree or order, and that you put and establish the said complainant or .... assigns, in full and peaceful possession of said premises; and that you do, from time to time, as often as shall be necessary preserve and defend the said possession of said premises against all force and interruption whatsoever, ac- cording to the true intent and meaning of said decree or order. WITNESS, the Honorable J , Chief Justice of said Court, this .... day of , A. D. 19 . . . , Clerk. By , Asst. Clerk. ( Caption. ) Writ of Fieri Facias. The President of the United States, to the Marshal for said District, Greeting: FORMS OF INTERLOCUTOEY ORDERS AND DECREES. 195 You are hereby commanded, that of the goods and chat- tels, lands and tenements of the defendant, , you cause to be made | , which the plaintiff, on the day of , 1 , by the judgment of said Court, in the above-entitled cause, recovered against said defendant, for money found payable to said plaintiff, and f for costs and charges about said suit expended, as appears of record ; and return this writ into the clerk's office of said Court on or before the sixtieth day from the date hereof, so indorsed as to show when and how you have executed the same. WITNESS, the Honorable J. Harry Covington, Chief Justice of said Court, the day , A. D. 19 . . . , Clerk. By , Asst. Clerk. ( Caption. ) Citation on Appeal. THE PEESIDENT OF THE UNITED STATES, TO You are hereby cited and admonished to be and appear at a COUKT OF APPEALS of the DISTRICT OF CO- LUMBIA, upon the docketing the cause therein, under and as directed by the Rules of said Court, pursuant to an Ap- peal THE SUPREME COURT OF THE DISTRICT OF COLUMBIA, on the day of , 19. . ., wherein Appellant, and you are Appellee, to show cause, if any there be, why the Judgment-Decree rendered against the said Appellant, should not be corrected, and why speedy justice should not be done to the parties in that behalf. WITNESS, the Honorable J. Harry Covington, Chief Justice of the SUPREME COURT OF THE DISTRICT OF COLUMBIA, this day of , in the year of our Lord one thousand nine hundred and Clerk. 196 FORMS OF INTEELOCTJTORY OEDBES AND DBCEBES. Service of the above Citation accepted this day of ,19.... Attorney for Appellee. ( Caption. ) Bond on Appeal, Operating as a Supersedeas. KNOW ALL MEN BY THESE PEESENTS, That we, ) as Principal, and as suret . . are held and firmly bound unto the above-named in the full sum of dollars, to be paid to the said executors, administrators, successors or assigns. To which payment will and truly be made, we bind ourselves, and each of us, jointly and severally, and our and each of our heirs, executors, administrators, successors and assigns firmly by these presents. Sealed with our seals and dated day of , in the year of our Lord one thou- sand nine hundred and WHEREAS, the above-named ha . . prosecuted an appeal to the COURT OF APPEALS OF THE DISTRICT OF CO- LUMBIA, to reverse the Judgment-Decree rendered in the above suit by the said SUPREME COURT OF THE DIS- TRICT OF COLUMBIA: NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION IS SUCH That if the above-named , shall prosecute said appeal to effect, and answer all damages and costs if shall fail to make good plea, then this ob- ligation shall be void; otherwise, the same shall be and remain in full force and virtue. Sealed and delivered in the presence of: (SEAL) (SEAL) (SEAL) (SEAL) Approved the day of , 191 . . . Justice, S. C. D. C. NEW RULES. EULE 1. District Court Always Open for Certain Purposes — Orders at Chambers. The district courts, as courts of equity, shall be deemed always open for the purpose of filing any pleading, of issuing and returning mesne and final process, and of making and directing all interlocu- tory motions, orders, rules and other proceedings preparatory to the hearing, upon their merits, of all causes pending therein. Any district judge may, upon reasonable notice to the parties, make, direct, and award, at chambers or in the clerk's office, and in vacation as well as in term, all such process, commissions, orders, rules and other proceedings, whenever the same are not grantable of course, according to the rules and practice of the court. Clerk's Office Always Open, Except, Etc. The clerk's office shall be open during business hours on all days, except Sundays and legal holidays, and the clerk shall be in attend- ance for the purpose of receiving and disposing of all motions, rules, orders and other proceedings which are grantable of course. 3. Boohs Kept ly Clerk and Efntries Therein. The clerk shall keep a book known as "Equity Docket," in which he shall enter each suit, with a file number corresponding to the folio in the book. All papers and orders filed with the clerk in the suit, all process issued and returns made thereon, and all appearances shall be noted briefly and chronologically in this book on the folio assigned to the suit and shall be marked with its file number. The clerk shall also keep a book entitled "Order Book," in which shall be entered at length, in the order of their making, all orders made or passed by him as of course and also all orders made or passed by the judge in chambers. He shall also keep an "Equity Journal," in which shall be entered all orders, decrees and proceedings of the court in equity causes in term time. Separate and suitable indices of the Equity Docket, Order Book and Equity Journal shall be kept by the clerk under the direction of the court. 197 198 NEW EULES. 4. Notice of Orders. Neither the noting of an order in the Equity Docket nor its entry in the Order Book shall of itself be deemed notice to the parties or their solicitors; and when an order is made without prior notice to, and in the absence of, a party, the clerk, unless otherwise directed by the court or judge, shall forthwith send a copy thereof, by mail, to such party or his solicitor and a note of such mailing shall be made in the Equity Docket, which shall be taken as sufl3.cient proof of due notice of the order. 5. Motions GrantaMe of Course hy Cleric. All motions and applications in the clerk's office for the issuing of mesne process or final process to enforce and execute decrees; for taking bills pro confesso, and for other proceedings in the clerk's office which do not require any allowance or order of the court or of a judge, shall be deemed motions and applications grantable of course by the clerk ; but the same may be suspended, or altered, or rescinded by the judge upon special cause shown. 6. Motion Bay. Each direct court shall establish regular times and places, not less than once each month, when motions requiring notice and hearing may be made and disposed of; but the judge may at any time and place, and on such notice, if any, as he may consider reasonable, make and direct all interlocutory orders, rulings and proceedings for the advancement, conduct and hearing of causes. If the public interest permits, the senior circuit judge of the circuit court may dispense with the motion day during not to exceed two months in the year in any district. 7. Process, Mesne and Final. The process of subpoena shall constitute the proper mesne process in all suits in equity, in the first instance, to require the defendant to appear and answer the biU; and, unless otherwise provided in these rules or specially ordered by the court, a writ of attachment and, if the defendant cannot be found, a writ of sequestration, or a writ of assistance to enforce a delivery of possession, as the case may require, shall be the proper process to issue for the purpose of compelling obedience to any interlocutory or final order or decree of the court. 8. Enforcement of Final Decrees. Einal process to execute any decree may, if the decree be solely for the payment of money, be by a writ of execution, in the form used in NEW RULES. 199 the district court in suits at common law in actions of assumpsit. If the decree be for the performance of any specific act, as, for ex- ample, for the execution of a conveyance of land or the delivering up of deeds or other documents, the decree shall, in all cases, prescribe the time within which the act shall be done, of which the defendant shall be bound without further service, to take notice ; and upon affi- davit of the plaintiff, filed in the clerk's office, that the same has not been complied with within the prescribed time, the clerk shall issue a writ of attachment against the delinquent party, from which, if at- tached thereon, he shall not be discharged, unless upon a full com- pliance with the decree and the payment of all costs, or upon a spe- cial order of the court, or a judge thereof, upon motion and affidavit, enlarging the time for the performance thereof. If the delinquent party cannot be foimd a writ of sequestration shall issue against his estate, upon the return of non est inventus, to compel obedience to pliance with the decree and the payment of all costs, or upon a spe- cific performance of any act or contract be not complied with, the court or judge, besides, or instead of, proceedings against the dis- obedient party for a contempt or by sequestration, may by order direct that the act required to be done, be done, so far as practicable, by some other person appointed by the court or judge, at the cost of the disobedient party, and the act, when so done, shall have like effect as if done by him. Writ of Assistance. When any decree or order is for the delivery of possession, upon proof made by affidavit of a demand and refusal to obey the decree or order, the party prosecuting the same shall be entitled to a writ of assistance from the clerk of the court. 10. Decree for Deficiency in Foreclosures, Etc. In suits for the foreclosure of mortgages, or the enforcement of other liens, a decree may be rendered for any balance that may be found due to the plaintiff over and above the proceeds of the sale or sales, and execution may issue for the collection of the same, as is provided in Eule 8 when the decree is solely for the payment of money. 11. Process in Behalf of and Against Persons Not Parties. Every person, not being a party in any cause, who has obtained an order, or in whose favor an order shall have been made, may enforce obedience to such order by the same process as if he were a party; and every person, not being a party, against whom obedience to any order of the court may be enforced, shall be liable to the same process for enforcing obedience to such orders as if he were a party. 200 NEW RULES. 12. Issue of Subpoena — Time for Answer. Whenever a bill is filed, and not before, the clerk shall issue the process of subpoena thereon, as of course, upon the application of the plaintiff, which shall contain the names of the parties and be return- able into the clerk's office twenty days from the issuing thereof. At the bottom of the subpoena shall be placed a memorandum, that the defendant is required to file his answer or other defense in the clerk's office on or before the twentieth day after service, excluding the day thereof; otherwise the bill may be taken pro confesso. Where there are more than one defendant, a writ of subpoena may, at the election of the plaintiff, be sued out separately for each defendant, or a joint subpoena against all the defendants. 13. Manner of Serving Subpxna. The service of all subpoenas shall be by delivering a copy thereof to the defendant personally, or by leaving a copy thereof at the dwell- ing house or usual place of abode of each defendant, with some adult person who is a member of or resident in the family. 14. Alias Subpoena. Whenever any subpoena shall be returned not executed as to any defendant, the plaintiff shall be entitled to other subpoenas against such defendant, until due service is made. 15. Process, by Whom Served. The service of all process, mesne and final, shall be by the marshal of the district, or his deputy, or by some other person specially ap- pointed by the court or judge for that purpose, and not otherwise. In the latter case, the person serving the process shall make affidavit thereof. 16. Defendant to Answer — Default — Decree Pro Confesso. It shall be the duty of the defendant, unless the time shall be en- larged, for cause shown, by a judge of the court, to file his answer or other defense to the bill in the clerk's office within the time named in the subpoena as required by Eule 12. In default thereof the plaintiff may, at his election, take an order as of course that the bill be taken pro confesso; and thereupon the cause shall be proceeded in ex parte. 17. Decree Pro Confesso to be Followed by Final Decree — Setting Aside Default. When the bill is taken pro confesso the court may proceed to a final decree at any time after the expiration of thirty days after the entry NEW RULES. 201 of the order pro confesso, and such decree shall be deemed absolute, unless the court shall, at the same term, set aside the same, or enlarge the time for filing the answer, upon cause shown upon motion and affidavit. No such motion shall be granted, unless upon the payment of the costs of the plaintiff up to that time, or such part thereof as the court shall deem reasonable, and unless the defendant shall undertake to file his answer within such time as the court shall direct, and sub- mit to such other terms as the court shall direct, for the purpose of speeding the cause. 18. Pleadings — Technical Forms Abrogated. Unless otherwise prescribed by statute or these rules, the technical forms of pleadings in equity are abolished. 19. Amendments Generally. The court may at any time, in furtherance of justice, upon such terms as may be just, permit any process, proceedings, pleading or record to be amended, or material supplemental matter to be set forth in an amended or supplemental pleading. The court, at every stage of the proceeding, must disregard any error or defect in the proceed- ing which does not affect the substantial rights of the parties. 20. Further and Particular Statement in Pleading May he Required. A further and better statement of the nature of the claim or de- fense, or further and better particulars of any matter stated in any pleading, may in any case be ordered, upon such terms, as to costs and otherwise, as may be just. 21. Scandal and Impertinence. The right to except to bills, answers and other proceedings for scan- dal or impertinence shall not obtain but the court may, upon motion or its own initiative, order any redundant, impertinent or scandalous matter stricken out, upon such terms as the court shall think fit. 22. Action at Law Erroneously Begun as Suit in Equity Transfer. If at any time it appear that a suit commenced in equity should have been brought as an action on the law side of the court, it shall be forthwith transferred to the law side and be there proceeded with, with only such alteration in the pleadings as shall be essential. 202 NEW RULES. 23. Matters Ordinarily Determinable at Law, When Arising in Suit in Equity to he Disposed of Therein. If in a suit in equity a matter ordinarily determinable at law arises, such matter shall be determined in that suit according to the prin- ciples applicable, without sending the case or question to the law side of the court. 24. Signature of Counsel. Every bill or other pleading shall be signed individually by one or more solicitors of record, and such signatures shall be considered as a certificate by each solicitor that he has read the pleading so signed by him; that upon the instructions laid before him regarding the case there is good ground for the same; that no scandalous matter is in- serted in the pleading, and that it is not interposed for delay. 25. Bill of Complaint — Contents. Hereafter it shall be sufficient that a bill in equity shall contain, in addition to the usual caption : First, the full name, when known, of each plaintiff and defendant, and the citizenship and residence of each party. If any party be under any disability that fact shall be stated. Second, a short and plain statement of the grounds upon which the court's jurisdiction depends. Third, a short and simple statement of the ultimate facts upon which the plaintiff asks relief, omitting any mere statement of evi- dence. Fourth, if there are persons other than those named as defendants who appear to be proper parties, the hill should state why they are not made parties — as that they are not within the jurisdiction of the court, or cannot be made parties without ousting the jurisdiction. Fifth, a statement of and prayer for any special relief pending the suit or on final hearing, which may be stated and sought in alternative forms. If special relief pending the suit be desired the bill should be verified by the oath of the plaintiff, or some one having knowledge of the facts upon which such relief is asked. 26. Joinder of Causes of Action. The plaintiff may join in one bill as many causes of action, cog- nizable in equity, as he may have against the defendant. But when there is more than one plaintiff, the causes of action joined must be joint, and if there be more than one defendant the liability must be one asserted against all of the material defendants, or sufficient grounds must appear for uniting the causes of action in order to pro- mote the convenient administration of justice. If it appear that any NEW RULES. 203 such causes of action cannot be conveniently disposed of together, the court may order separate trials. 27. Stochholder's Bill. Every bill brought by one or more stockholders in a corporation against the corporation and other parties, founded on rights which may properly be asserted by the corporation, must be verified by oath, and must contain an allegation that the plaintiff was a shareholder at the time of the transaction of which he complains, or that his share had devolved on him since by operation of law, and that the suit is not a collusive one to confer on a court of the United States juris- diction of a case of which it would not otherwise have cognizance. It must also set forth with particularity the efforts of the plaintiff to secure such action as he desires on the part of the managing directors or trustees, and, if necessary, of the shareholders, and the causes of his failure to obtain such action, or the reasons for not making such effort. 28. Amendment of Bill as of Course. The plaintiff may, as of course, amend his bill before the defendant has responded thereto, but if such amendment be filed after any copy has issued from the clerk's office, the plaintiff at his own cost shall furnish to the solicitor of record of each opposing party a copy of the bill as amended, unless otherwise ordered by the court or judge. After pleading filed by any defendant, plaintiff may amend only by consent of the defendant or leave of the court or judge. 29. Defenses — How Presented. Demurrers and pleas are abolished. Every defense in point of law arising upon the face of the bill, whether for misjoinder, nonjoinder or insufficiency of fact to constitute a valid cause of action in equity, which might heretofore have been made by demurrer or plea, shall be made by motion to dismiss or in the answer; and every such point of law going to the whole or a material part of the cause or causes oi action stated in the bill may be called up and disposed of before final hearing at the discretion of the court. Every defense heretofore pre- sentable by plea in bar or abatement shall be made in the answer and may be separately heard and disposed of before the trial of the prin- cipal case in the discretion of the court. If the defendant move to dismiss the bill or any part thereof, the motion may be set down for hearing by either party upon five days' notice, and, if it be denied, answer shall be filed within five days thereafter or a decree pro con- fesso entered. 204 NEW EULBS. 30. Answer — Contents — Counter-Claim. The defendant in his answer shall in short and simple terms set out his defense to each claim asserted by the bill, omitting any mere statement of evidence and avoiding any general denial of the aver- ments of the bill, but specifically admitting or denying or explaining the facts upon 'which the plaintiff relies, unless the defendant is with- out knowledge, in which case he shall so state, such statement oper- ating as a denial. Averments other than of value or amount of dam- age, if not denied, shall be deemed confessed, except as against an in- fant, lunatic or other person non compos and not under guardianship, the answer may be amended, by leave of the court or judge, upon rea- sonable notice, so as to put any averment in issue, when justice re- quires it. The answer may state as many defenses, in the alternative, regardless of consistency, as the defendant deems essential to his de- fense. The answer must state in short and simple form any counter- claim arising out of the transaction which is the subject matter of the suit, and may, without cross bill, set out any set-off or counter-claim against the plaintiff which might be the subject of an independent suit in equity against him, and such set-off or counter-claim, so set up, shall have the same effect as a cross-suit, so as to enable the court to pronounce a final judgment in the same suit both on the original and cross-claims. 31. Reply — When Required — When Cause at Issue. Unless the answer assert a set-off ' or counter-claim, no reply shall be required without special order of the court or judge, but the cause shall be deemed at issue upon the filing of the answer, and any new or affirmative matter therein shall be deemed to be denied by the plaintiff. If the answer include a set-off or counter-claim, the party against whom it is asserted shall reply within ten days after the filing of the answer, unless a longer time be allowed by the court or judge. If the counter-claim is one which affects the rights of other defend- ants they or their solicitors shall be served with a copy of the same within ten days from the filing thereof, and ten days shall be acT corded to such defendants for filing a reply. In default of a reply, a decree pro confesso on the counter-claim may be entered as in default of an answer to the bill. 32. Answer to Amended Bill. In every case where an amendment to the bill shall be made after answer filed, the defendant shall put in a new or supplemental answer within ten days after that on which the amendment or amended bill is filed, unless the time is enlarged or otherwise ordered by a judge of NEW RULES. 205 the court; and upon his default, the like proceedings may be had as in case of an omission to put in answer. 33. Testing Sufficiency of Defense. Exceptions for insufficiency of an answer are abolished. But if an answer set up an affirmative defense, set-off or counter-claim, the plaintiff may, upon five days' notice, or such further time as the court may allow, test the sufficiency of the same by motion to strike out. If found insufficient but amendable the court may allow an amendment upon terms, or strike out the matter. 34. Supplemental Pleading. Upon application of either party the court or judge, may, upon reasonable notice and such terms as are just, permit him to file and serve a supplemental pleading, alleging material facts occurring after his former pleading, or of which he was ignorant when it was made, including the judgment or decree of a competent court rendered after the commencement of the suit determining the matters in controversy or a part thereof. 35. Bills of Revivor and Supplemental Bills — Form. It shall not be necessary in any bill of revivor or supplemental bill to set forth any of the statements in the original suit, unless the special circumstances of the case may require it. 36. Officers Before Whom Pleadings Verified. Every pleading which is required to be sworn to by statute, or these rules, may be verified before any justice or judge of any court of the United States, or of any State or Territory, or of the District of Co- lumbia, or any clerk of any court of the United States or of any Territory, or of the District of Columbia, or any notary public. 37. Parties Generally — Intervention. Every action shall be prosecuted in the name of the real party in interest, but an executor, administrator, guardian, trustee of an ex- press trust, a party with whom or in whose name a contract has been made for the benefit of another, or a part expressly authorized by statute, may sue in his own name without joining with him the party for whose benefit the action is brought. All persons having an interest in the subject of the action and in obtaining the relief demanded may join as plaintiffs, and any person may be made a defendant who has or claims an interest adverse to the plaintiff. Any person may at any 206 NEW BULBS. time be made a party if his presence is necessary or proper to a com- plete determination of the cause. Persons having a united interest must be joined on the same side as plaintiffs or defendants, but when any one refuses to join, he may for such reason be made a defendant. Any one claiming an interest in the litigation may at any time be permitted to assert his right by intervention, but the intervention shall be in subordination to, and in recognition of, the propriety of the main proceeding. 38. Representatives of Glass. When the question is one of common or general interest to many persons constituting a class so numerous as to make it impracticable to bring them all before the court, one or more may sue or defend for the whole. 39. Absence of Persons Who Would he Proper Parties. In all cases where it shall appear to the court that persons, who might otherwise be deemed proper parties to the suit, cannot be made parties by reason of their being out of the jurisdiction of the court, or incapable otherwise of being made parties, or because their joinder would oust the jurisdiction of the court as to the parties before the court, and the court may, in its discretion, proceed in the cause with- out making such persons parties; and in such cases the decree shall be without prejudice to the rights of the absent parties. 40. Nominal Parties. Where no account, payment, conveyance or other direct relief is sought against a party to a suit, not being an infant, the party, upon service of the subpoena upon him, need not appear and answer the bill, unless the plaintiff specially requires him to do so by the prayer; but he may appear and answer at his option; and if he does not appear and answer he shall be bound by all the proceedings in the cause. If the plaintiff shall require him to appear and answer he shall be entitled to the costs of all the proceedings against him, unless the court shall otherwise direct. 41. Suit to Execute Trusts of Will — Heir as Party. In suits to execute the trusts of a wiU, it shall not be necessary to make the heir at law a party; but the plaintiff shall be at liberty to make the heir at law a party where he desires to have the will estab- lished against him. 42. Joint and Several Demands. In all cases in which the plaintiff has a joint and several demand against several persons, either as principals or sureties, it shall not be NEW RULES. 207 necessary to bring before tbe court as parties to a suit concerning such deniand all the persons liable thereto; but the plaintiff may proceed against one or more of the persons severally liable. 43. Defect of Parties — Besisting Objection. Where the defendant shall by his answer suggest that the bill of complaint is defective for want of parties, the plaintiff may, within fourteen days after answer filed, set down the cause for argument as a motion upon that objection only; and where the plaintiff shall not so set down his cause, but shall proceed therewith to a hearing, not- vnthstanding an objection for want of parties taken by the answer, he shall not at the hearing of the cause, if the defendant's objection shall then be allowed, be entitled as of course to an order to amend his bill by adding parties; but the court shall be at liberty to dis- miss the bill, or to allow an amendment on such terms as justice may require. 44. Defect of Parties — Tardy Objection. If a defendant shall, at the hearing of a cause, object that a suit is defective for want of parties, not having by motion or answer taken the objection and therein specified by name or description the parties to whom the objection applies, the court shall be at liberty to make a decree saving the rights of the absent parties. 45. Death of Party — Revivor. In the event of the death of either party the court may, in a proper case, upon motion, order the suit to be revived by the substitution of the proper parties. If the successors or representatives of the deceased party fail to make such application within a reasonable time, then any other parly may, on motion, apply for such relief, and the court, upon any such motion, may make the necessary orders for notice to the parties to be substituted and for the filing of such pleadings or amendments as may be necessary. 46. Trial — Testimony Usually Taken in Open Court — Rulings on Objec- tions to Evidence. In all trials in equity the testimony of witnesses shall be taken orally in open court, except as otherwise provided by statute or these rules. The court shall pass upon the admissibility of all evidence of- fered as in actions at law. When evidence is offered and excluded, and the party against whom the ruling is made excepts thereto at the time, the court shall take and report so much thereof, or make such a statement respecting it, as will clearly show the character of the evi- dence, the form in which it was offered, the objection made, the ruling 208 NEW RULES. and the exception. If the appellate court shall be of opinion that the evidence should have been admitted, it shall not reverse the decree unless it be clearly of opinion that material prejudice will result from an affirmance, in which event it shall direct such further steps as justice may require. 47. Depositions — to he Taken in Exceptional Instances. The court, upon application of either party, when allowed by stat- ute, or for good and exceptional cause for departing from the general rule, to be shown by affidavit, may permit the deposition of named wit- nesses to be used before the court or upon a reference to a master, to be taken before an examiner or other named officer, upon the notice and terms specified in the order. All depositions taken under a statute or under any such order of the court, shall be taken and filed as fol- lows, unless otherwise ordered by the court or judge for good cause shown: Those of the plaintiff within sixty days from the time the cause is at issue, those of the defendant within thirty days from the expiration of the time for the filing of plaintiff's depositions ; and re- butting depositions by either party within twenty days after the time for taking original depositions expires. 48. Testimony of Expert Witnesses in Patent and Trade-Mark Cases. In a case involving the validity or scope of a patent or trade-mark, the district court may, upon petition, order that the testimony in chief of expert witnesses, whose testimony is directed to matters of opinion, be set forth in affidavits and filed as follows: Those of the plaintifi within forty days after the cause is at issue; those of the defendant within twenty days after plaintifi's time has expired; and rebutting affidavits within fifteen days after the expiration of the time for filing original affidavits. Should the opposite party desire the production of any affiant for cross-examination, the court or judge shall, on motion, direct that said cross-examination and any re-exam- ination take place before the court upon the trial, and unless the af- fiant is produced and submits to cross-examination in compliance with such direction, his affidavit shall not be used as evidence in the cause. 49. Evidence Taken Before Examiners, Etc. All evidence offered before an examiner or like officer, together with any objections, shall be saved and returned into the court. Deposi- tions, whether upon oral examination before an examiner or like of- ficer or otherwise, shall be taken upon questions and answers re- duced to writing, or in the form of narrative, and the witness shall be subject to cross and re-examination. NEW RULES. 209 50. Stenographer — Appointment — Fees. When deemed necessary by the court or officer taking testimony, a stenographer may be appointed who shall take down testimony in shorthand and, if required, transcribe the same. His fee shall be fixed by the court and taxed ultimately as costs. The expense of taking a deposition, or the cost of a transcript, shall be advanced by the party calling the witness or ordering the transcript. 51. Evidence Taken Before Examiners, Etc. Objections to the evidence, before an examiner or like officer, shall be in short form, stating the grounds of objection relied upon, but no transcript filed by such officer shall include argument or debate. The testimony of each witness, after being reduced to writing, shall be read over to or by him, and shall be signed by him in the presence of the officer; provided, that if the witness shall refuse to sign his deposition so taken, the officer shall sign the same, stating upon the record the reasons, if any, assigned by the witness for such refusal. Objection to any question or questions shall be noted by the officer upon the deposition, but he shall not have the power to decide on the competency or materiality or relevancy of the questions. The court shall have power, and it shall be its duty, to deal with the costs of in- competent and immaterial or irrelevant depositions, or parts of them, as may be just. . 52. Attendance of Witnesses Before Commissioner, Master or Examiner. Witnesses who live within the district, and whose testimony may be taken out of court by these rules, may be summoned to appear before a commissioner appointed to take testimony; or before a master or examiner appointed in any cause, by subpoena in the usual form, which may be issued by the clerk in blank and filled up by the party praying the same, or by the commissioner, master or examiner, re- quiring the attendance of the witnesses at the time and place specified, who shall be allowed for attendance the same compensation as for at- tendance in court; and if any witness shall refuse to appear or give evidence it shall be deemed a contempt of the court, which being cer- tified to the clerk's office by the commissioner, master or examiner, an attachment may issue thereupon by order of the court or of any judge thereof, in the same manner as if the contempt were for not attend- ing, or for refusing to give testimony in, the court. In case of refusal of witnesses to attend or be sworn or to answer any question put by the commissioner, master or examiner or by counsel or solicitor, the same practice shall be adopted as is now prac- ticed with respect to witnesses to be produced on examination before an examiner of said court on written interrogatories. 210 NEW BULBS. 53. Notice of Taking Testimony Before Examiner, Etc. Notice shall be given by the respective counsel or parties to the opposite counsel or parties of the time and place of examination before an examiner or like officer for such reasonable time as the court or officer may fix by order in each case. 54. Depositions Under Rev. Stat. Sections 86S, 865, 866, 867 — Gross- Examination. After a cause is at issue, depositions may be taken as provided by sections 863, 865, 866 and 867, Revised Statutes. But if in any case no notice has been given the opposite party of the time and place of taking the deposition, he shall, upon application and notice, be en- titled to have the witness examined orally before the court, or to a cross-examination before an examiner or like officer, or a new deposi- tion taken with notice, as the court or judge under all the circum- stances shall order. 55. Deposition Deemed Published When Filed. Upon the filing of any deposition or affidavit taken under these rules or any statute, it shall be deemed published, unless otherwise ordered by the court. 56. On Expiration of Time for Depositions, Case Goes on Trial Calendar. After the time has elapsed for taking and filing depositions under these rules, the case shall be placed on the trial calendar. Thereafter no further testimony by deposition shall be taken except for some strong reason shown by affidavit. In every such application the rea- son why the testimony of the witness cannot be had orally on the trial, and why his deposition has not been before taken, shall be set forth, together with the testimony which it is expected the witness will give. 57. Contimtances. After a cause shall be placed on the trial calendar it may be passed over to another day of the same term, by consent of counsel or order of the court, but shall not be continued beyond the term save in excep- tional eases by order of the court upon good cause shown by affidavit and upon such terms as the court shall in its discretion impose. Con- tinuances beyond the term by consent of the parties shall be allowed on condition only that a stipulation be signed by counsel for all the parties and that all costs incurred theretofore be paid. Thereupon an order shall be entered dropping the case from the trial calendar, subject to reinstatement within one year upon application to the NEW EULBS. 211 court by either party, in which event it shall be heard at the earliest convenient day. If not so reinstated within the year, the suit shall be dismissed without prejudice to a new one. 58. Discovery — Interrogatories — Inspection and Production of Documents — Admission of Execution or Genuineness. The plaintiff at any time after filing the bill and not later than twenty-one days after the joinder of issue, and the defendant at any time after filing his answer and not later than twenty-one days after the joinder of issue, and either party at any time thereafter by leave of the court or judge, may file interrogatories in writing for the dis- covery by the opposite party or parties of facts and documents material to the support or defense of the cause, with a note at the foot thereof stating which of the interrogatories each of the parties is required to answer. But no party shall file more than one set of interrogatories to the same party without leave of the court or judge. If any party to the cause is a public or private corporation, any op- posite party may apply to the court or judge for an order allowing him to file interrogatories to be answered by any officer of the corporation, and an order may be made accordingly for the examination of such officer as may appear to be proper upon such interrogatories as the court or judge shall think fit. Copies shall be filed for the use of the interrogated party and shall be sent by the clerk to the respective solicitors of record, or to the last known address of the opposite party if there be no record solic- itor. Interrogatories shall be answered, and the answers filed in the clerk's office, within fifteen days after they have been served, unless the time be enlarged by the court or judge. Each interrogatory shall be an- swered separately and fully and the answers shall be in writing, under oath, and signed by the party or corporate officer interrogated. Within ten days after the service of interrogatories, objections to them, or any of them, may be presented to the court or judge, with proof of notice of the purpose so to do, and answers shall be deferred until the objections are determined, which shall be at as early a time as is practicable. In so far as the objections are sustained, answers shall not be required. The court or judge, upon motion and reasonable notice, may make all such orders as may be appropriate to enforce answers to interroga- tories or to effect the inspection or production of documents in the possession of either party and containing evidence material to the cause of action or defense of his adversary. Any party failing or refusing to comply with such an order shall be liable to attachment, and shall also be liable, if a plaintiff, to have his bill dismissed, and, if a defendant, to have his answer stricken out and be placed in the same situation as if he had failed to answer. By a demand served ten days before the trial, either party may call on the other to admit in writing the execution or genuineness of any document, letter or other writing, saving all just exceptions; and if 212 NEW RULES. such admission be not made within fire days after such service, the costs of proving the document, letter or writing shall be paid by the party refusing or neglecting to make such admission, unless at the trial the court shall find that the refusal or neglect was reasonable. 69. Reference to Master — Exceptional, Not Usual. Save in matters of account, a reference to a master shall be the exception, not the rule, and shall be made only upon a showing that some exceptional condition requires it. When such a reference is made, the party at whose instance or for whose benefit it is made shall cause the order of reference to be presented to the master for a hear- ing within twenty days succeeding the time when the reference was made, unless a longer time be especially granted by the court or judge; if he shall omit to do so, the adverse party shall be at liberty forthwith to cause proceedings to be had before the master, at the costs of the party procuring the reference. 60. Proceedings Before Master. Upon every such reference, it shall be the duty of the master, as soon as he reasonably can after the same is brought before him, to assign a time and place for proceedings in the same, and to give due notice thereof to each of the parties, or their solicitors ; and if either party shall fail to appear at the time and place appointed, the master shall be at liberty to proceed ex parte, or, in his discretion, to adjourn the examination and proceedings to a future day, giving notice to the absent party or his solicitor of such adjournment; and it shall be the duty of the master to proceed with all reasonable diligence in every such reference, and with the least practicable delay, and either party shall be at liberty to apply to the court, or a judge thereof, for an' order to the master to speed the proceedings and to make his report, and to certify to the court or judge the reason for any delay. 61. Master's Report — Documents Identified But Not Set Forth. In the reports made by the master to the court no part of any state of facts, account, charge, affidavit, deposition, examination or answer brought in or used before him shall be stated or recited. But such state of facts, accounts, charge, affidavit, deposition, examination or answer shall be identified, and referred to, so as to inform the court what state of facts, account, charge, affidavit, deposition, examination or answer were so brought in or used. Powers of Master. The master shall regulate all the proceedings in every hearing be- fore him, upon every reference; and he shall have full authority to NEW BULBS. 213 examine the parties in the cause, upon oath, touching all matters con- tained in the reference; and also to require the production of all books, papers, writings, vouchers and other documents applicable thereto; and also to examine on oath, viva voce, all witnesses pro- duced by the parties before him, or by deposition, according to the acts of Congress or otherwise, as here provided; and also to direct the mode in which the matters requiring evidence shall be proved before him; and generally to do all other acts, and direct all other inquiries and proceedings in the matters before him, which he may deem neces- sary and proper to the justice and merits thereof and the rights of the parties. 63. Form of Accounts Before Master. All parties accounting before a master shall bring in their respective accounts in the form of debtor and creditor; and any of the other parties who shall not be satisfied with the accoimt so brought in shall be at liberty to examine the accounting party viva voce, or upon inter- rogatories, as the master shall direct. 64. Former Depositions, Etc., May he Used Before Master. All affidavits, depositions and documents which have been previously made, read or used in the court upon any proceeding in any cause or matter may be used before the master. 65. Claimants Before Master Examinable hy Him. The master shall be at liberty to examine any creditor or other person coming in to claim before him, either upon written interroga- tories or viva voce or in both modes, as the nature of the case may appear to him to require. The evidence upon such examinations shall be taken down by the master, or by some other person by his order and in his presence, if either party requires it, in order that the same may be used by the court if necessary. 66. Return of Master^s Report — Exceptions — Hearing. The master, as soon as his report is ready, shall return the same into the clerk's office and the day of the return shall be entered by the clerk in the Equity Docket. The parties shall have twenty days from the time of the filing of the report to file exceptions thereto, and if no exceptions are within that period filed by either party, the report shall stand confirmed. If exceptions are filed, they shall stand for hearing before the court, if then in session, or, if not, at the next sitting held thereafter, by adjournment or otherwise. 214 NEW BULBS. 67. Costs on Exceptions to Master s Beport. In order to prevent exceptions to reports from being filed for frivolous causes, or for mere delay, the party whose exceptions are overruled, shall, for every exception overruled, pay five dollars costs to the other party, and for every exception allowed shall be entitled to the same costs. 68. Appointment and Compensation of Masters. The district courts may appoint standing masters in chancery in their respective districts (a majority of all the judges thereof con- curring in the appointmelit), and they may also appoint a master pro hac vice in any particular case. The compensation to be allowed to every master shall be fixed by the district court, in its discretion, hav- ing regard to all the circumstances thereof, and the compensation shall be charged upon and borne by such of the parties in the cause as the court shall direct. The master shall not retain his report as security for his compensation, but when the compensation is allowed by the court, he shall be entitled to an attachment for the amount against the party who is ordered to pay the same, if, upon notice thereof, he does not pay within the time prescribed by the court. 69. Petition for Behearing. Every petition for a rehearing shall contain the special matter or cause on which such rehearing is applied for, shall be signed by coun- sel, and the facts therein stated, if not apparent on the record, shall be verified by the oath of the party or by some other person. No re- hearing 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 Circuit Court of Appeals or the Supreme Court. But if no appeal lies, the petition may be admitted at any time before the end of the next term of the court, in the discretion of the court. 10. Suits hy or Against Incompetents. Guardians ad litem to defend a suit may be appointed by the court, or by any judge thereof, for infants or other persons who are under guardianship, or otherwise incapable of suing for themselves. All infants and other persons so incapable may sue by their guardians, if any, or by their prochein ami; subject, however, to such orders as the court or judge may direct for the protection of infants and other persons. 71. Form of Decree. In drawing up decrees and orders, neither the bill, nor answer, nor other pleadings, nor any part thereof, nor the report of any master, NEW EULES. 215 nor any other prior proceeding, shall be recited or stated in the decree or order; but the decree and order shall begin, in substance, as fol- lows : "This cause came on to be heard (or to be further heard, as the ease may be) at this term, and was argued by counsel ; and there- upon, upon consideration thereof, it was ordered, adjudged and de- creed as follows, viz:" (Here insert the decree or order.) 72. Correction of Clerical Mistakes in Orders and Decrees. Clerical mistakes in decrees or decretal orders, or errors arising from any accidental slip or omission, may, at any time before the close of the term at which final decree is rendered, be corrected by order of the court or a judge thereof, upon petition, without the form or expense of a rehearing. 73. Preliminary Injunctions and Temporary Restraining Orders. No preliminary injunction shall be granted without notice to the opposite party. Nor shall £iny temporary restraining order be granted without notice to the opposite party, unless it shall clearly appear from specific facts, shown by affidavit or by the verified bill, that im- mediate and irreparable loss or damage will result to the applicant be- fore the matter can be heard on notice. In case a temporary restrain- ing order shall be granted without notice, in the contingency specified, the matter shall be made returnable at the earliest possible time, and in no event later than ten days from the date of the order, and shall take precedence of all matters, except older matters of the same char- acter. When the matter comes up for hearing the party who obtained the temporary restraining order shall proceed with his application for a preliminary injimction, and if he does not do so the court shall dis- solve his temporary restraining order. Upon two days' notice to the party obtaining such temporary restraining order, the opposite party may appear and move the dissolution or modification of the order, and in that event the court or judge shall proceed to hear and determine the motion as expeditiously as the ends of justice may require. Every temporary restraining order shall be forthwith filed in the clerk's office. 74. Injunction Pending Appeal. When an appeal from a final decree, in an equity suit, granting or dissolving an injunction, is allowed by a justice or a judge who took part in the decision of the cause, he may, in his discretion, at the time of such allowance, make an order suspending, modifying or restoring the injunction during the pendency of the appeal, upon such terms, as to bond or otherwise, as he may consider proper for the security of the rights of the opposite party. 216 NEW RULES. Y5. Record on Appeal — Beduction and Preparation. In case of appeal: (a) It shall be the duty of the appellant or his solicitor to file with the clerk of the court from which the appeal is prosecuted, to- gether with proof or acknowledgment of service of a copy on the ap- pellee or his solicitor, a prmcipe which shall indicate the portions of the record to be incorporated into the transcript on such appeal. Should the appellee or his solicitor desire additional portions of the record incorporated into the transcript, he shall file with the clerk of the court his prmcipe also within ten days thereafter, unless the time shall be enlarged by the court or a judge thereof, indicating such ad- ditional portions of the record desired by him. (b) The evidence to be included in the record shall not be set forth in full, but shall be stated in simple and condensed form, all parts not essential to the decision of the questions presented by the appeal being omitted and the testimony of witnesses being stated only in narrative form, save that if either party desires it, and the court or judge so directs, any part of the testimony shall be reproduced in the exact words of the witness. The duty of so condensing and stating the evidence shall rest primarily on the appellant, who shall prepare his statement thereof and lodge the same in the clerk's office for the ex- amination of the other parties at or before the time of filing his prmcipe under paragraph a of this rule. He shall also notify the other parties or their solicitors of such lodgment and shall name a time and place when he will ask the court or judge to approve the statement, the time so named to be at least ten days after such notice. At the expiration of the time named or such further time as the court or judge may allow, the statement, together' with any objections made or amendments proposed by any party, shall be presented to the court or the judge, and if the statement be true, complete and properly pre- pared, it shall be approved by the court or judge, and if it be not true, complete or properly prepared, it shall be made so under the direction of the court or judge and shall then be approved. When approved, it shall be filed in the clerk's office and become a part of the record for the purposes of the appeal. (c) If any difP^ence arise between the parties concerning direc- tions as to the general contents of the record to be prepared on the appeal, such difference shall be submitted to the court or judge in con- formity with the provisions of paragraph h of this rule and shall be covered by the directions which the court or judge may give on the subject. 1Q. Record on Appeal — Reduction and Preparation — Costs — Correction of Omissions. In preparing the transcript on an appeal, especial care shall be taken to avoid the inclusion of more than one copy of the same paper and to exclude the formal and immaterial parts of all exhibits, docu- NEW RULES. 217 ments and other papers included therein; and for any infraction of this or any kindred rule the appellate court may withhold or impose costs as the circumstances of the case and the discouragement of like infractions in the future may require. Costs for such an infraction may be imposed upon ofiending solicitors as well as parties. If, in the transcript, anything material to either party be omitted by accident or error, the appellate court, on a proper suggestion or its own motion, may direct that the omission be corrected by a supple- mental transcript. 77. Record on Appeal — Agreed Statement. When the questions presented by an appeal can be determined by the appellate court without an examination of all the pleadings and evidence the parties, with the approval of the district court or the judge thereof, may prepare and sign a statement of the case showing how the questions arose and were decided in the district court and setting forth so much only of the facts alleged and proved, or sought to be proved, as is essential to a decision of such questions by the appellate court. Such statement, when iiled in the office of the clerk of the district court, shall be treated as superseding, for the purposes of the appeal, aU parts of the record other than the decree from which the appeal is taken, and, together with such decree, shall be copied and certified to the appellate court as the record on appeal. 78. Affirmation in Lieu of Oath. Whenever under these rules an oath is or may be required to be taken, the party may, if conscientiously scrupulous of taking an oath, in lieu thereof make solemn affirmation to the truth of the facts stated by him. 79. Additional Rules hy District Court. With the concurrence of a majority of the circuit judges for the circuit, the district courts may make any other and further rules and regulations for the practice, proceedings and process, mesne and final, in their respective districts, not inconsistent with the rules hereby pre- scribed, and from time to time alter and amend the same. 80. Computation of Time — Sundays and Holidays. When the time prescribed by these rules for doing any act expires on a Sunday or legal holiday, such time shall extend to and include the next succeeding day that is not a Sunday or legal holiday. 81. These Rules Effective Felruary 1, 1913 — Old Rules Abrogated. These rules shall be in force on and after February 1, 1913, and shall govern all proceedings in cases then pending or thereafter 218 NEW EULES. brought, save that where in any then pending cause an order has been made or act done which cannot be changed without doing sub- stantial injustice, the court may give effect to such order or act to the extent necessary to avoid any such injustice. All rules theretofore prescribed by the Supreme Court, regulating the practice in suits in equity, shall be abrogated when these rules take effect. INDEX TO NEW EQUITY RULES. Eule. Abatement, defenses formerly presentable by, to be made in an- swer 29 Absence of persons wbo would be proper parties 39 Account, matters of, reference to master 59 to be identified but not stated in master's report 61 forms of, before master 63 Action, at law, erroneously begun as suit in equity, transfer . . 22 joinder of, causes of 26 to be prosecuted in name of real party in interest, .... 37 Additional rules, by district court Y9 Administrator as party 37 Admissibility of evidence offered to be passed on by court .... 46 Admission of execution, etc., of documents, etc 58 Advancement of causes, notice of interlocutory orders, etc 6 Affidavit, plaintiff's, of noncompliance with decree, attachment to issue 8 to be made of service of process by person appointed therefor 15 of expert witnesses in patent and trade-mark cases, provisions as to 48 required on application for continuance 57 to be identified but not stated in master's report .... 61 previously used in court, etc., may be used before master 64 on application for preliminary injunction 73 Affirmation in lieu of oath 78 Agreed statement, record on appeal 77 Alternative defenses may be stated in answer 30 Amended bill, answer to 32 Amendments generally 19 permitted of any process, pleading, record, etc. . . 19 of bill as of course 28 not after defendant's pleading filed, except, etc ; 28 on suggestion of defect of parties 43 of pleadings on substitution of parties 45 Answer, subpoena, proper process to compel 7 time for to be filed within time named in subpo3na 16 enlarging time for filing 1" 219 220 INDEX TO NEW EQUITY BULES. Eule. when to be filed, on motion to set aside decree pro con- fesso 17 exceptions to, for scandal and impertinence, shall not obtain 21 defenses to be presented in 29 to be filed if motion to dismiss denied 29 if not filed, decree pro confesso entered 29 defenses formerly presentable by plea in bar or abate- ment, to be made in 29 what to contain 30 amendment of, by leave, on reasonable notice 30 to omit statement of evidence 30 to avoid general denial of averments of bill 30 Answer, to specifically admit, or deny, or explain facts upon which plaintiff relies 30 contents, counter-claim, 30 to state counter-claims 30 may state defenses in alternative 30 cause at issue on filing of, unless, etc 31 to amended bill 32 Answer, new or supplemental, to be filed to amended bill 32 exceptions for insufficiency of, abolished 33 if insufficient, may be amended or matter stricken out 33 when defect of parties suggested, proceedings on ... . 43 may be stricken out for failure to answer interroga- tories or produce documents 58 to be identified but not stated in master's report 61 Appeal, injunction pending 74 record on, differences as to 75 reduction and preparation 75 costs — correction of omissions 76 agreed statement 77 Appearance, filed with clerk to be noted in equity docket 3 subpoena proper process to compel 7 Appellant, to notify opposing party or solicitors, etc 75 to file praecipe indicating portion of record on appeal 75 to condense evidence, etc 75 Appellate court not to reverse decree unless 46 court may direct further steps as justice may require 46 Appellee to file prmcipe indicating additional portions of record on appeal 75 Appointment and fees of stenographers 50 compensation of masters 68 Assistance, writ of, when to issue 7 on refusal to obey decree for delivery of pos- Bession 9 Attachment, provisions as to 7 INDEX TO NEW EQUITY RULES. 221 Eule. for noncompliance with decree 8 not to be discharged unless upon full compliance with decree, etc 8 may issue for failure to answer interrogatories or produce documents 58 Attendance of witnesses before commissioner, master, or ex- aminer 52 Averments of bill, if not denied, deemed confessed, except, etc. 30 Bill, subpoena proper mesne process to compel appearance and answer to Y when filed, clerk to issue subpoena 12 may be taken pro confesso if answer not filed, etc 12 exceptions to, for scandal and impertinence, shall not ob- tain 21 to be signed by solicitors 24 of complaint, contents 25 stockholder's 27 stockholder's, what to contain 27 amendment of, as of course 28 amended, answer to 32 Bill, supplemental, what necessary in 35 of revivor and supplemental bills, what necessary in 35 may be dismissed for failure to answer interrogatories or produce documents 58 verification of, on application for preliminary injunction, etc 73 Bond on order suspending, etc., injunction pending appeal .... 74 Books, clerk to keep equity docket, order book, equity journal . 3 papers, etc., production of, required by master 62 Calendar, trial, case goes on, when 56 Cause, speeding, provision as to, on motion to set aside decree pro confesso 17 Causes, advancement, conduct and hearing of, notice of inter- locutoiy orders for 6 of action, joinder of 26 frivolous, imposition of costs on exceptions to master's report _ ^' Certificate, signature of solicitor to pleading to be considered . 24 Chambers, awarding process, commissions, orders, rules, etc., by ■I judge at Charge to be identified but not stated in master s report 61 Circuit Court of Appeals, if appeal lies to, rehearing not granted after term '/'"/,.'"■ ^^ Circuit judge may dispense with motion day if public interest Citizenship, name and residence of each party to be stated in bill 25 Claim, further and better statement of nature of, may be ordered 20 Claimants before master, examinable by him 65 222 INDEX TO NEW EQUITY RULES. Eule. Class, representatives of, may sue or defend 38 Clerical mistakes in orders and decrees, correction of Y2 Clerk, duties of 2 to keep equity docket 3 order book 3 equity journal 3 motions grantable of course by 5 to grant as of course, motions and applications not re- quiring order of court or judge 5 to issue writ of assistance on refusal to obey decree for delivery of possession 9 to issue subpoena when bill filed, and not before 12 of court, verification of pleadings before 36 to send copies of interrogatories to solicitors of record . . 58 Clerk, office of, awarding of process, commissions, orders, rules, etc., by judge at 1 when open 2 master to return report into 66 temporary restraining orders to be filed in ... . 73 statement as to appeal to be filed in Y5 Commissioner, attendance of witnesses before 52 Commissions, award of, by judge at chambers, etc 1 Compensation and appointment of masters 68 of master to be fixed by court 68 Competency, etc., of questions asked before examiner not to be decided by him 51 Computation of time — Sundays and holidays 80 Conduct of causes, notice of interlocutory orders for 6 Contempt for noncompliance with mandatory order, etc 8 Continuances, provisions as to 57 Copy of prcecipe indicating portions of record on appeal 75 service of, indicating, etc 75 Corporate officer to sign interrogatories under oath 58 Corporation, when interrogatories to be answered by officer of . 58 stockholder's bill against 27 Correction of clerical mistakes in orders and decrees 72 omissions in transcript on appeal 76 Costs, payment of, and full compliance with decree before a dis- charge of attachment 8 of plaintiff to be paid before court will set aside decree pro confesso, etc 17 terms as to, when further and particular statement in pleading required 20 to nominal parties 40 stenographer's fees to be taxed as 50 of incompetent, etc., depositions to be dealt with by court 51 on continuances, provisions as to 57 proving execution or genuineness of documents, etc. . 58 INDEX TO NEW EQUITY RULES. 223 Eule. reference to master 59 exception to master's report 67 may be imposed upon offending solicitors 76 imposition of, for infraction of rule as to record on appeal 76 Counsel, signature of 24 to give notice of taking testimony before examiner, etc. 53 consent of, to continuances, provisions as to 57 to sign petition for rehearing 69 Counter-claim, to be stated in answer 30 Counter-claim, to be replied to 31 in default of reply to, decree pro confesso en- tered 31 Court, on motion or own initiative, may order redundant, im- pertinent or scandalous matter stricken out 21 testimony usually to be taken in, at trial 46 to deal with costs of incompetent, etc., depositions 51 contempt of, by witness refusing to appear before com- missioner, master or examiner 52 may appoint standing masters in chancery 68 provisions as to approval by, of appellant's statement, etc., on appeal 75 district, additional rules by 79 Creditor making claim before master examinable by him 65 Cross bill, — counter-claim to be stated in answer, and not by . 30 Cross-examination of expert witnesses in patent and trade-mark cases 48 witness where no notice of deposition given 54 Damage, averments in bill as to 30 to be shown on application for preliminary injunction 73 Death of party, revivor 45 Decree of court to be entered in equity journal 3 process to issue to compel obedience to 7 compelling obedience to, writ of sequestration 8 discharge of attachment upon compliance with 8 for specific performance, provision as to 8 for performance of specific act, attachment when 8 solely for payment of money, writ of execution on 8 final, enforcement of ° for delivery of possession, writ of assistance on refusal to obey ^ for deficiency in foreclosures, etc 10 pro confesso on default in answer 16 when may be set aside 1 ' to be followed by final decree 17 final, following decree pro confesso 17 pro confesso entered, if answer not filed, etc 29 in default of reply to conter-claim 31 224: INDEX TO NEW BQtTITY RTTLES. Eule. not to be reversed imless material prejudice would result 46 form of Yl shall not recite pleadings 71 correction of clerical mistakes in 72 final, appeals from in injunction suits 74 to be sent up with agreed statement on appeal 77 Deeds, etc., decree for delivering up, attachment in 8 Default to answer, bill taken pro confesso 16 of reply to counter-claim, decree pro confesso 31 in answer to amended bill, proceedings on 32 Defect, court to disregard in proceeding not affecting substantial rights 19 of parties resisting objection 43 tardy objection to 44 Defendant, subpoena proper propess to compel appearance and answer of 7 if not found, writ of sequestration proper process to issue, etc 7 to take notice of certain decrees 8 required to file answer on or before 20th day after service of subpoena 12 service of subpoena to be upon 13 to answer within time named in subpoena 16 person refusing to join as plaintiff or defendant may be made defendant 37 time within which to take deposition for 47 Defense, further and better statement of nature of, may be or- dered 20 how presented 29 what to be heard separately and disposed of before trial, etc 39 testing sufficiency of 33 Deficiency in foreclosures, etc., decree for 10 Delay, signature of solicitor to pleadings certificate that plead- ings not interposed for 24 master to certify reason for any to court 60 imposition of costs for, on exceptions to master's report 67 Delivery of possession, writ of assistance to enforce 7 Demands, joint and several 42 Demurrers abolished 29 Depositions to be taken in exceptional instances 47 time within which to be taken 47 taken before examiners, etc 49 expense of taking to be advanced by party calling witnesses 50 court to deal with costs of incompetent, etc 51 under E. S. 863, 865, 866, 867,— cross-examination 54 INDEX TO NEW EQUITY RULES. 225 Eule. deemed published when filed 55 on expiration of time for, case goes on trial calen- dar 56 to be identified but not set forth in master's report 61 may be taken by master 62 etc., former may be used before master 64 previously used in court may be used before master 64 Differences concerning directions as to contents of record on ap- peal, provisions as to Y5 Disability of any party to be stated in bill 25 Discovery, interrogatories for, when to be filed 58 Dismiss, motion to, setting down for hearing 29 Dismissal of causes continued, if not reinstated 5Y District courts, always open for certain purposes 1 to establish times and places when motions may be made and disposed of 6 additional rules by '^9 District judge may make, direct and award process, commis- sions, orders, rules, etc 1 Documents, inspection and production of 58 court may enforce inspection and production of . . . 58 interrogatories for discovery of, when to be filed . . 58 execution or genuineness of, call for admission of 58 identified but not set forth in master's report 61 production of, required by master 62 previously used in court may be used before master 64 Dwelling house, service of subpoena by leaving copy at 13 Equity Docket, clerk to keep ^ index of ^' noting of order in, not notice 4 day of return of master's report to be entered in 66 Equity Journal, clerk to keep ^ index of ^ Equity, suit in, action at law erroneously begun as— transfer . . 22 matters ordinarily determinable at law when arising in, to be disposed of therein 23 Error or defect in proceedings, court to disregard when not af- fecting substantial rights • • • • ^^ Evidence, mere statement of, to be omitted from bill ^& admissibility of, to be passed on by court 46 Evidence, offered and excluded, proceedings on ;■•■■■• affidavits of expert witnesses in patent and trade- mark cases, when not to be used as 48 taken before examiners to be returned to court 49 taken before examiners, provisions as to 51 objections to, taken before examiner, etc 61 court or judge may enforce answers to interrogatories and production of documents containing 58 15 226 INDEX TO NEW EQUITY RULES. Eule. master may direct mode of proving matters' before him 62 before master on examination to be taken down .... 65 bow to be stated in record 75 Ex parte, cause to be proceeded with after decree pro confesso . 16 Examination to be identified but not stated in master's report 61 Examiners, evidence taken before, to be returned to court .... 49 provisions as to 51 not to decide on competency, materiality or rele- vancy of questions 51 attendance of witnesses before 52 notice of taking testimony before, etc 53 cross-examination of witness before 54 Exceptions for insufEciency of answer abolished 33 to evidence offered and excluded, provisions as to. . 46 to masters report 66 costs on 67 Execution, writ of, provisions as to 8 admission of, of documents, etc 58 Executor as party 37 Expert witnesses, testimony of, in patent and trade-mark cases 48 Facts, ultimate statement of, upon whjch relief asked, to be stated in bill 25 insufficiency of, as defense, how presented 29 material, may be alleged in supplemental pleading .... 34 not to be stated in master's report 61 Fees, of stenographer 50 File number, each suit and all papers, process, etc., to be marked with, and noted on equity docket 3 Filing of deposition deemed publication 55 Final hearing, points of law may be disposed of before 29 Final process, issue and return of 1 to be served by marshal, deputy, etc 15 Foreclosure of mortgages, etc., decree for balance due 10 Form of accounts before master 63 decree 71 Former depositions, etc., may be used before master 64 Forms, technical, of pleadings abrogated 18 alternative — ^prayer for specific relief may be in 25 Genuineness of documents, admission of, etc 58 Guardian as party 37 may sue for infants 70 ad litem, may be appointed by court or judge, etc. . . 70 Hearing on merits — making and directing interlocutory mo- tions, orders, rules, etc., preparatory to 1 of causes, notice of interlocutory orders for 6 final, points of law may be disposed of before 29 on exceptions to report of master 66 INDEX TO NEW EQUITY RULES. 227 Eule. Heir as party to suits to execute trusts of will 41 Holidays, legal, clerk's office not open 2 computation of time 80 Impertinence, scandal, exceptions to bills, answers, etc., for, shall not obtain 21 Incompetents, suits by or against YO Indices of equity docket, order book and equity journal, clerk to keep 3 Infants, nothing to be taken against as confessed 30 nominal parties in suits not against 40 may sue by guardian or by prochein ami YO guardians ad litem may be appointed to defend suits against YO Injunction, for specific performance, provision as to 8 preliminary, and temporary restraining orders .... Y3 Injunction, pending appeal Y4 Insufficiency of fact, defense of, how presented 29 Interlocutory, motions, orders, rules, etc., making and directing 1 Interrogatories, written, practice as to, to be followed in case of refusal of witness before master, examiner, etc 52 when to be filed 58 when to be answered, etc 58 court may enforce answers to 58 to be answered separately and fully, in writing, under oath, and signed 58 objections to, provisions as to 58 copies to be sent by clerk to solicitors of record 58 examination of accounting party before master on 63 claimants before master examinable on 65 Intervention, when allowed 3Y Issue, of subpcena 12 cause at, upon filing of answer, except, etc 31 Joinder of causes of action 26 parties, provision as to • • ■ • 3Y Joint and several demands • • 42 Judge, district, may make, direct and award process, commis- sions, orders, rules, etc 1 in chambers, orders by, to be entered in order book 3 may suspend, alter or rescind motion granted as of course by clerk ^ on notice, if any, may make interlocutory orders, etc. . . 6 verification of pleadings before _. . ■ • 36 Jurisdiction, ground on which depends to be stated in bill 25 Justice, convenient administration of, joinder of causes of ac- tion to promote ^^ Land, decree for conveyance of, attachment m 8 228 INDEX TO NEW EQUITY RULES. Eule. Law, action erroneously begun as suit in equity — transfer .... 22 matters ordinarily determinable at, when arising in suit in equity, to be disposed of therein 23 points of, may be disposed of before final hearing 29 Letter, call for admission of genuineness of, etc 58 Loss, immediate and irreparable to be shown on application for temporary restraining order 73 Lunatic, nothing to be taken against as confessed 30 Marshal, deputy, etc., to serve all process, except 15 Master, attendance of witnesses before 52 reference to, exceptional not usual 59 proceedings before 60 duties of 60 may proceed ex parte when 60 may adjourn examination, etc., when 60 to proceed with reasonable diligence 60 reports of, — documents to be identified but not set forth 61 powers of 62 to regulate all proceedings before him 62 may require production of all books, papers, etc 62 form of accounts before 63 former depositions, etc., may be used before 64 claimants before, examinable by him 65 appointment and compensation of 68 entitled to attachment for his compensation, when .... 68 not to retain report as security for compensation 68 pro hoc vice, in particular cases, may be appointed by court 68 in chancery, standing, may be appointed by the court . 68 Master's report, return of — exceptions — hearing 66 costs on exception to 67 not to be recited in decree or order 71 Material supplemental matter may be set forth in amended pleadings 19 Materiality of questions not to be decided by examiner 51 Matter, further and better particulars of, in any pleading may be ordered 20 new or affirmative, in answer, deemed denied by plain- tiff 31 Matters or ordinarily determinable at law, when arising in suit in equity, to be disposed of therein 23 Merits, hearing on — ^making and directing interlocutory mo- tions, orders, rules, etc., preparatory to 1 Mesne process, issuing and returning 1 subpoena shall constitute proper 7 to be served by marshal, deputy, etc 15 Misjoinder, defense of, how presente'd 29 Mistakes, clerical, correction of, in orders and decrees 72 INDEX TO NEW EQUITY EULES. 229 Eule. Money, payment of, final process to execute decree for 8 Mortgages, foreclosure of, decree for balance due 10 Motions, interlocutory, making and directing 1 when may be made 1 etc., grantable of course, received and disposed of by clerk 2 grantable of course by clerk 5 for mesne process grantable of course by clerk 5 and applications not requiring order of court or judge grantable of course by clerk 5 Motions, grantable of course by clerk may be suspended, etc., by judge 5 requiring notice and hearing, times and places for . . 6 to enlarge time for filing answer lY will not be granted unless payment of costs, etc 17 to strike out, to test sufficiency of answer 33 Motion day 6 may be dispensed with by senior circuit judge .... 6 Motion to dismiss, defenses to be presented in 29 Names of plaintiff and defendant to be stated in bill 25 Nominal parties 40 Non est inventus, return of, issuance of writ of sequestration . 8 Nonjoinder, defense of, how presented 29 Notary public, verification of pleadings before 36 Notice, reasonable, to parties, of process, commissions, orders, rules, etc 1 of orders 4 order without prior, to be mailed by clerk to party, etc. 4 of interlocutory orders, etc 6 defendant to take of certain decrees 8 of motion to dismiss 29 reasonable, of amendment of answer, by leave, etc. ... 30 reasonable, of filing supplemental pleading 34 to be given to parties to be substituted 45 reasonable, of motion to enforce answers, etc 58 of taking testimony before examiner, etc 53 to parties or solicitors of proceedings before master . . 60 no preliminary injunction granted without Y3 Oath, may be made by plaintiff if special relief asked 25 stockholders' bill to be verified by 27 interrogatories to be signed under 58 petition for rehearing to be verified by 69 affirmation in lieu of 78 Objections, to defect of parties 43 tardy, to defect of parties 44 to evidence taken before examiner, provisions as to 51 to be noted by examiner, etc 51 Officers before whom pleadings verified 36 230 INDEX TO NEW EQUITY RULES. Eule. Old rules abrogated 81 Omissions, etc., in orders and decrees may be corrected without rehearing 72 Omissions, of portions of record on appeal Y5, 76 correction of, in record on appeal 76 Orders, when may be made 1 award of, by judge at chambers, etc 1 interlocutory, making and directing 1 grantable of course, received and disposed of by clerk . 2 filed with clerk to be noted in equity docket 3 of court to be entered in equity journal 3 made or passed by clerk, or judge in chambers, to be en- tered in order book 3 made without notice, to be mailed by clerk 4 Orders, noting of, in equity docket or entered in order book, not notice to parties 4 interlocutory, notice of 6 process to issue to compel obedience to 7 mandatory, for specific performance, provision as to . . 8 for delivery of possession, writ of assistance on refusal to obey 9 in favor person not party, how enforced 11 against person not party, how enforced 11 that bill be taken pro confesso on default ". . . 16 shall not recite pleadings 71 correction of clerical mistakes in 72 temporary restraining, and preliminary injunctions . . Y3 Justice or judge may make order suspending, etc., in- junction pending appeal 74 Order book, clerk to keep 3 to contain all orders made or passed by judge in chambers or by clerk .^ 3 index of, clerk to keep 3 entry of order in, not notice 4 Papers and orders filed with clerk, etc., to be noted in equity docket 3 production of, required by master 62 Parties, noting or entry of order not notice to 4 persons not made 25 generally — intervention 37 joinder of 37 proper, absence of persons who would be 39 nominal, appearance of 40 in cases of joint and several demands 42 defect of, resisting objection 43 defect of, tardy objection, proceedings on 4*4 to give notice of taking testimony before examiner, etc. 53 clerk to send copies of interrogatories to, if there be no record solicitor 58 INDEX TO NEW EQUITY KULES. 231 Eule. notice to, of proceedings before master 60 failing to appear before master 60 may be examined on oath by master 62 accounting before master, bow to bring in accounts . . 63 to examine accounting party viva voce or upon inter- rogatory 63 time for filing exceptions to master's report by 66 to verify petition for rehearing by oath 69 to be given notice of preliminary injunctions, etc Y3 Party, when order made in absence of, clerk to mail copy 4 heir as, to execute trusts of will 41 death of, revivor 45 procuring reference to master, payment of costs by ... . 59 Patent cases, testimony of expert witnesses in 48 Persons not parties, process on behalf of and against 11 Person appointed to serve process to make affidavit thereof .... 15 Persons not made parties to bill 25 Person, non compos, nothing to be taken against as confessed . 30 Persons joining as parties 37 who would be proper parties, absence of 39 Person msiking claim before master examinable by him 65 Petition for rehearing 69 Plaintiff entitled to subpoena as of course when bill filed 12 time within which to take deposition for 47 Plea in bar, defenses formerly presentable by to be made in an- swer • 29 Pleadings, filing of 1 technical forms abrogated 18 court may permit any to be amended 19 further and particular statement in, may be re- quired 20 further and better particulars of matter stated in any may be ordered 20 alternation in, on transfer of action at law erron- eously begun as suit in equity 22 to be signed by solicitors 24 when bill may be amended as of course 28 demurrers and pleas abolished 29 supplemental, permitted when 34 officers before whom verified _• ;• ■ 36 filing, or amendment of, on substitution of parties . 45 Pleas abolished ■ ^l Possession, delivery of, writ of assistance to enforce 7 on refusal to obey de- cree for 9 62 Powers of master Practice, additional rules for, by district court i^ PrcEcipe, filing indicating portions of record on appeal 75 232 INDEX TO NEW EQUITY HULES. Rule. Prayer for special relief to be stated in bill 25 Precedence giyen to hearing in cases of temporary restraining orders 73 Prejudice, unless material, will result appellate court not to re- verse decree 46 Preliminary injunctions and temporary restraining orders 73 Preparation and reduction of record on appeal 75 — costs — correc- tions of omis- sions 76 Pro confesso, taking bills, motion for, grantable of course by clerk 5 bill may be taken when answer not filed, etc. ... 12 decree on default in answer 16 to be followed by final decree 17 entered if answer not filed 29 Proceedings before master, speeding of 60 powers in 62 Process, Mesne and final, issuing and returning 1 award of, by judge at chambers, etc 1 issuing and return of 1 issued and returns thereon to be noted in equity docket 3 for taking bills pro confesso grantable of course by clerk 5 mesne or final, to enforce and execute decrees grantable of course by clerk 5 Process, mesne and final, defined 7 in behalf of and against persons not parties 11 by whom served 15 mesne and final to be served by marshal, deputy, etc. . 15 may be served by person appointed therefor 15 court may permit any process to be amended 19 additional rules as to, by district court 79 Prochein ami may sue for infants 70 Production of books, papers, etc., may be required by master . . 62 Publications of deposition, when filed 55 Questions, competency, materiality, or relevancy of, not to be decided by examiner 51 Record, court may permit any record to be amended 19 how evidence to be stated in 75 appellant's statement as to record on appeal to become part of — 75 on appeal indicating portions of 75 additional portions, how indicated 75 reduction and preparation 75 difference as to 75 reduction and preparation — costs — correction of omissions 76 agreed statement 77 INDEX TO NEW EQUITY EXILES. 233 Eule. Eeduction and preparation of record on appeal 75 costs — corrections of omissions . Y6 Keference to master — exceptional, not usual 59 Eehearing, petition for, provisions as to 69 correction of clerical mistakes in orders and decrees without 72 Eeinstatement of causes, continued 57 Eelevancy of questions not to be decided by examiner, etc 51 Eelief, special, prayer for, to be stated in bill 25 to be verified by oath of plaintiff, etc 25 Eeply — when required — when cause at issue 31 none required unless answer asserts set-off or counter- claim 31 Eeport, master's, to court 60 documents to be identified but not set forth . 61 of master, exceptions, hearing 66 costs on exceptions to 67 not to be recited in decree or order 71 Eepresentatives of class may sue or defend 38 Eesidence and citizenship of each party to be stated in bill .... 25 Eestraining orders, temporary, and preliminary injunctions . . 73 Eetums on process to be entered on equity docket 3 Eeturn of subpoena not executed 14 of master's report — exceptions — Shearing 66 Eevivor, bills of, what necessary in 35 on death of party 45 Eights, substantial, court to disregard error or defect in pro- ceedings which does not affect 19 Eules, when they may be awarded 1 interlocutory, making and directing 1 award of, by judge at chambers, etc 1 grantable of course, received and disposed of by clerk . . 2 additional, by district court T9 when effective 81 old, abrogated 81 Sale, amount due above proceeds of decree for 10 Scandal and impertinence 21 Scandalous matter, signature of solicitor, certificate that none inserted in pleading 24 Sequestration, writ of, proper process if defendant not found . 7 against estate of delinquent 8 person other than disobedient party to comply with mandatory order for spe- cific performance 8 Service of subpoena by delivery of copy, etc 13 Set-off to be stated in answer 30 replied to "l Signatures, pleadings to be signed by solicitors of record 24 234 INDEX TO NEW EQUITY RULES. Eule. Solicitors, noting or entry of order not notice to 4 of record to sign every pleading 24 to be furnished copy of amended bill .... 28 Solicitors, clerk to send copies of interrogatories to 58 notice to, of proceedings before master 60 offending, imposition of costs on Y6 to file praecipe indicating portions of record on ap- peal Y5 Specific performance, by some other person than disobedient party 8 Standing masters in chancery, courts may appoint 68 Statement, further and particular in pleading may be required 20 agreed, as to record on appeal 11 Stenographer — appointment — fees 50 Stockholder's bill 27 Subpoena shall constitute proper mesne process, etc 1 issue of, time for answer 12 to issue when bill filed and not before 12 to contain names of parties 12 when returnable 12 memorandum at bottom thereof 12 joint, against more than one defendant 12 separately, for each defendant when against more than one 12 manner of serving 13 not executed, provision as to 14 alias 14 Substitution of proper parties by revivor 45 Sufficiency of defense, how tested 33 Suits, papers filed, process issued, etc., to be noted on equity docket 3 to execute trusts of will — ^heir as party 41 by or against incompetents YO Supplemental pleadings, when may be filed 34 Supreme Court, if appeal lies to, rehearing not granted after term 69 Sundays, clerk's office not open 2 and holidays — computation of time 80 Temporary restraining orders and preliminary injunctions ... Y3 Term, awarding process, commissions, orders, rules, etc., by judge at chambers, etc., in 1 orders, decrees, etc., of court to he entered in equity journal 3 rehearing not granted after, if appeal lies 69 Testimony, usually to be taken in open court at trial 46 of expert witnesses in patent and trade-mark cases 48 may be taken down by stenographer 50 to be signed by witness 51 INDEX TO NEW EQUITY RULES. 235 Eule. of witnesses before examiner to be read to him 51 contempt of court for refusal of witness to give testimony before commissioner, examiner, etc. . . 52 notice of taking before master or examiner 53 no further, by deposition to be taken after case goes on trial calendar, except, etc 56 how stated in record on appeal 75 Testing sufficiency of defense 33 Time, enlargement of, for full compliance with decree 8 to file answer 16 on expiration of, for depositions, case on trial calendar . 56 computation of — Sundays and holidays 80 Trade-mark cases, testimony of expert witnesses in 48 Transcript, cost of, to be advanced by party ordering 50 of evidence before examiner not to include argu- ment 51 on appeal, indicating portions of Y5 supplemental, correction of, omissions by Y6 Transfer of action at law erroneously begun as suit in equity . 22 Trial, testimony usually taken in open court, rulings on objec- tions to evidence 46 calendar, on expiration of time for depositions case goes on 56 Trials, separate — court may order separate trials of joint ac tions 26 Trustee as party 37 Vacation, awarding process, commissions, orders, rules, etc., by judge at chambers in 1 Value, averments in bill other than of, if not denied, deemed confessed , . 30 Verification, bill to be verified by oath if special relief asked . . 25 of pleadings, officers before whom taken 36 petition for rehearing to be verified by oath, etc. . 69 Viva voce, master may examine persons before him 65 Vouchers, production of, required by master 62 WiU, execution of trusts of — heir as party 41 Witnesses, testimony usually to be taken in open court 46 depositions of, may be taken when 47 testimony of expert in patent and trade-mark cases 48 before examiners, etc., cross-examination of, etc. . . 49 testimony of, to be read to 51 to be signed by 51 Witnesses, refusing to sign testimony 50 expense of taking deposition of, to be advanced by party calling 50 attendance of, before commissioner, etc 52 refusing to appear before commissioner, master or examiner 52 236 INDEX TO NEW EQUITY EULES. Eule. compensation of, for attendance before commissioner, master or examiner 52 may be examined orally before court, or cross-exam- ined before examiner, etc., when no notice of depo- sition given 54 testimony of, by deposition, after case goes on trial calendar 56 may be examined on oath by master 02 testimony of, how stated in record on appeal 75 Writing, call for admission of execution or genuineness of . . . 58 Writings, production of, required by master 62 GENERAL INDEX. (References are to pages.) A. ABATEMENT, MATTER OF. Too late to urge for first time at hearing, 96 ACTIONS, Common law, inadequacy of, 2, 3 In personam, 12-13 In rem, 12-13 ADEQUATE AND COMPLETE REMEDY AT LAW, Y, 8, 9 AEEEDAVIT, SITPPORTING, In common law and code pleadings, Compared with discovery in Equity, 18, 19 AEFIRMATIVE OR PURE PLEA, what is, 98 ALLEGATIONS. See Bill. ALTERNATIVE, hiU framed in. Rule 25, 32 ALTERNATIVE DEFENSES, Rule 30, 91 AMENDMENTS, 68-YO Definition, 68 Effect of new rules, 69 In discretion of court, ■. 68 Limitation on 70-Yl {See also Bill.) ANOMALOUS PLEA, what is, 99 ANSWER, lOY-116 Affirmative relief by, Rule 30 110 As evidence, 20, 114 Averments of, 108, lOi Defendant submitting to, must answer each and every al- legation of bill, 18 Definition of, lOY Disclosure by, The foundation of other defenses in equity pleading, . 20 Elements of, 108-109 Exceptions abolished, Rules 21 and 33, 114 Form of, 89-91 Hearing on bill and, ■ 114 Matter of counterclaim, Rule 30, 110 237 238 GENERAL INDEX. Numbering of paragraphs, 34 Plea ordered to stand for, 102 Scope of, under early rules, 105 under new rules, lY Separate hearing of matter formerly raised by plea, 111-112 Set-off and counterclaim 110 Signature and verification, Eule 24, 109 Testing legal sufficiency of, 113 Upon overruling of plea, defendant entitled to, 101 Upon plea being found untrue, 103-104 Verification, 109 Waiving oath to, 109, 115 What it should contain, Eule 30, lOY, 108 When, used, 88 ANSWEE UNDEE oath, may be expressly waived, 109, 115 APPEAL 148-151 Differing from writ of error, 148 Lies only from final decrees, 149 Proceedings at law, 149 Supersedeas, 151 Time for taking, 150 APPEAEANCE, 81-83 Appearance gratis, 81 Duty of party served to appear and answer, 81 Default in, 81-83 General and special, 81 AEGUMENT, demurrer set down for, 93 plea set down for, 101 AUDITOE, duties of, in District of Columbia 119 AVEEMENTS OF ANSWEE. See Answer. B. BILL. Address of, 30 Allegations of. Admitted for purpose of argument in demurrer, 93 Immaterial, need not be answered, 109 Not covered by answer, deemed to be admitted, Eule 30, 108 Amendment of. Motion for, proper where there is a variance in allegata and probata 31 To overcome affirmative defense, 101 Certainty, 41 Classification of 54 Confederating and charging parts, and jurisdictional clause abolished, Eule 25, 30 Contents of, 31-32 For relief in alternative, 49 GENERAL INDEX. 239 Forms of, 33-41 Address or caption 33 Introduction, 33 Premises or stating part, 34-38 Interrogating part, 38 Prayer for process, 38 for specific relief, 38-39 for general relief, 39 Signature and verification, 39 Interrogatories, 40-41 Framed with double aspect, 48 Function of, 29 Interrogating part not always necessary, Eule 25, 30 Introduction, 30 Nine parts of, 30 Not strictly construed, 41 Numbering of paragraphs, 34 Premises or standing part, 31 Eequisites of, 29 BILL OF CEETIOEAEI, 61 BILL, CEOSS. See Cross Bill. BILL OF DISCOVEEY, 56-57 BILL TO EXAMINE WITNESSES DE BENE ESSE, .... 60-61 Affidavit should accompany, 60 Distinguished from bill to perpetuate testimony, 60 Object of, 60 BILL OF INTEEPEADEE, 61-64 Defenses to, 64 Definition of, 61 What must be alleged, 62-63 BILL IN NATUEE OF BILL OF INTEEPEADEE, 64 BILL TO PEEPETUATE TESTIMONY, 57-60 BILL OF EEVIEW, 146-148 For error or law or new matter, 148 Grounds for, 146 Eight to file, 147 Who may file, 148 BILL OF EEVIVOE, Eule 45, 54 BILL IN NATUEE OF BILL OF EEVIVOE, 55 BILL OF EEVIVOE AND SUP- PLEMENT, 55 BILLS, NOT OEIGINAL, examples of, 54 BILLS PEAYING EELIEF, 56 BILLS NOT PEAYING EELIEF, 56 240 GENERAL INDEX. C. CAUSES, Transfer of. See Transfer of Causes. When at issue, 118 CEETIOEAEI, BILL OF. See BiU of Certiorari. CHAlSrCELLOE, "Keeper of King's Conscience," 2 Powers and duties of, 2 CHANCEET, Defined, 1 Writs out of, 2 CHANCEET COUETS, Classes of, in the several States, 4, 5 CLASSIFICATION of bills in equity. See BILL. COLLATEEAL ATTACK, Upon judgments and decrees, 14 COLONIES, Englis|i, in America, Courts of Chancery in, 4 COMMENCEMENT OF SUITS IN EQUITY, 29 COMMON LAW ACTIONS. See Actions. COMMON LAW EEMEDIES, Inadequacy of, 2, 3 CONCLUSIONS OF LAW, 43-45 CONSCIENCE, Eight to search, — ^privilege of plaintiff in Chancery, 18 CONSENT OF THE PAETIES, Jurisdiction not conferred by, 12 CONTEMPT PEOCEEDINGS. See Execution. COUNTEECLAIM, Matter of to be set up in answer, Eule 30, 92 COUETS OF CHANCEET, American, — in colonial times, 4 English, — extension of power, 1, 2, 3 COUETS, EQUITY, U. S., Jurisdiction of, not affected by State legislation, 7 Jurisdiction of, once attaching, not lost because of issue triable at law 9 Eemedies in, 6, 12 COUETS, UNITED STATES, Eemedies in, 6, 12 Trial by jury, 7, 8, 9 CEOSS BILL, 64-68 Counter-demands, 64-65 Definition, 64 Frame of, 66 GENERAL INDEX. 241 Hearing, gY Dismissal, 67-68 Matter constituting generally to be set up in answer, 110 Parties, gg Eule 30, effect of, ............].. 65 Where necessary, gg^ 91-92 D. DE BENE ESSE, BILL TO EXAMINE WITNESSES. See BILL. DECISIONS, may not be collaterally attacked, 14 DECEEE, 135-138 Appeal lies only from final, 149 Definition of, 135 Drawn up by solicitor for successful party, 95-96, 137 Final and interlocutory, 136 Form of, 137-138 How framed, 137 In rem and in personam, 136 Modification (Eule 73), 137 Pro Confesso, what is, 81 DEEDS, Place of record, pleading, 4S DEFAULT IN APPEAEANCE, Upon, plaintiff entitled to decree pro confesso, 82 DEFECTS, Formal and technical. Waived by failure to demur, 96 DEFENSES, Clearly stated and defined in answer, 107-108 Formerly made by demurrer, now by motion to dismiss, . . 92 In bar and in abatement. Made by answer 92 In general, 84-92 List of, 84 When made, 84-92 Inconsistent, 91 Less favored yields to more favored 88 Must not overlap, 88 In alternative, 88 Made by answer under early practice, 105 To bill in equity, 18 DEMUEEEE, Abolished by new rules, Eule 29, 17, 92, 106 Classes, General or Special, 93 Foi-m of, 85 General, never waived, 96 16 242 GENERAL INDEX. Not earliest form of defense, 20 Now known as motion to dismiss, 92-97 Definition of, 92 Disposition of, 94 What it admits, 93 What it reaches, 96 When used, 93 Ore tenus, 93 Purpose and effect of, 84 Signature and verification, 86 Speaking, 93 DEPOSITIONS, DE BENE ESSE, Taking of, 60 DIEEEEENCE, Fundamental, Between pleadings at law and in equity, 17 DISABILITIES OF PAETY 32 DISCrAiMEE, 91, 116 DISCLOSUEE, By answer. Plea invented to obviate necessity for, 21 DISCOVEEY, Advantage of plaintiff in equity over plaintiff at law, 19 Bill of. When used, 56-57 Form. (jS^ee Appendix.) Defendant must give, in support of anomalous and negative pleas, 100 If required, plaintiff may compel appearance and answer by defendant, 82 Objections to: Fact immaterial to relief prayed, 22, 24 May subject defendant to penalties, 22, 23, 24 Necessity for privity, , 22, 25, 27 Official correspondence, 22, 27 Professional confidence 22, 25 Eight of defendant equal to that of plaintiff 22, 24 Plaintiff limited to facts material to his case, 26 Eight of, 19 Limitations upon, 22-28 Never introduced into proceedings at law, 18 Primary difference between pleadings at law and in equity, 17 DISMISSAL, of bill. Upon plea sustained, unless leave given to amend, 101 DOCUMENTS, Pleading of 42 DOUBLE ASPECT, Bill framed with, 32 GENERAL INDEX. 243 E. EDICTS, EOTAL, 2 EFFECT of abolition of demurrer and plea, Eule 29, 106-107 ENGLISH COURT OF CHANCERY. See COURT OF CHANCERY. EQUITY COURTS. See COURTS. Equity JURISDICTION, in America, 1, 5 EQUITY JURISPRUDENCE, 1 PLEADING. See PLEADING. RULES. See RULES. AND LAW. See LAW AND EQUITY. EVIDENCE, Of defendant under oath. Plaintiff in Equity not bound by, 19 EVIDENCE AND HEARING, 132-135 Depositions in exceptional cases, 133 Evidence taken in open court, 132 Feigned issues, 135 Testimony before examiner, 134 EXCEPTIONS, Abolished, Rules 21 and 33, 114 EXECUTION, 138-144 Bessette v. W. B. Conkey, 141-142 Classification of proceedings, 141 CONTEMPT proceedings, 140 Eiiforcement of decrees, 138 Further proceedings. Rules 8 and 9, 139 Pardoning power for contempt, 144 Punishment for contempt, 143 F. FEDERAL JUDICIARY ACT (1789), 6 FISHING BILL, example of, 26 FORMS,— Address or caption of bill, 33 Answer, 89-91 Bill of complaint, 33-41 Demurrer, 85-86 Example of various equitable. {See Appendix.) Interrogating part of bill, 38 Interrogatories, 41 Introduction to bill, 33 Motion to dismiss, 86 Of action at common law, 15 Of pleading in equity, 16 244 GENERAL INDEX. Order pro confesso, , 95 Order overruling demurrer, 94 motion to dismiss, 95 Plea, 87 Prayer for process, 38 for general relief, 89 for specific relief, 39 Premises or Stating part, 34 Verification of bill, 40 G. GEEAT SEAL OF THE EEALM, 4 H. HEAEING, Preliminary, Of matter which formerly was the subject of plea, held in discretion of court, 92 HEAEING. See, also, EVIDENCE AND HEAEING. I. IMPEETINENCE,— Early example of, 51-52 Defined, 51 Objection, how taken, Eules 21 and 24, 53 See, also, SCANDAL and IMPEETINENCE. INFOEMATION IN EQUITY, Function of, 29 INJUNCTION, 125-131 Definition, 125 Dissolution, 129 Grounds, 126 Interlocutory and perpetual, 126 Method of obtaining, 128-129 Temporary restraining orders, Eule Y3, 127 Violation of, 130 INSUFFICIENCY,— Tested by motion to strike out, 114 INTEELOCUTOEY APPLICATIONS AND PEOCEED- INGS 119-131 INTEEPLEADEE, BILL OF, 61-64 J. JUDICIAEY ACT, FEDEEAL, 6 JUEISDICTION, Concepts of, 11 Defined, 11 None, over person unless served, 80 See, also, COURTS, U. S. GENBBAL INDEX. 245 JUET, Trial by, Eight to only at law, 8, 9 K KENG OF ENGLAND, Source of judicial power, 1-2 L. LAW AND EQiriTY,— Dual system of administering justice, 5, 6 M. MASTER, EEFERENOES TO, 121-124 How appointed, Eule 68 121 Proceedings before, Eule 62, 123 Eeport of, and exceptions to, Eules 6Y and 68, 124 MATEEIAL FACTS, Discovery limited to, 27 MATTEE EESPONSIVE TO THE BILL, 115 MAXI MS; A court of equity ought to do justice completely and not by halves, , 9, 47 Consensus tollit errorem 13, 96 Debile fundamentum f allit opus, 13 De non apparentibus et non existentibus eadem est ratio, . 16 Equity considers that done which is agreed to be done, ... 49 Frustra probatur quod probatum non relevat, 16 He who seeks equity must do equity, 43 Interest reipublica ut sit finis litium, 14 Omnia praesumuntur rite et solemniter acta, 14 Quod ah initio non valet intractu temporis, non convalescit, 16, 96 Salus populi est suprema lex, 13 Suits in equity shall not be sustained where there i? a plain, adequate and complete remedy at law, 12 Utile per inutile non vitiatur, 52 Verba fortius accipiuntur contra proferentum, 16 MISTAKE, In remedies, MOTION TO DISMISS, 92-97 Equivalent to demurrer under old rules, 92 Form of, 86 Order overruling, 95 What may be raised by, 93, 97 MOTIONS, 120 MULTIFARIOUSNESS, 45,50 Concerned with only on phase of relief, 49 Defined - 45 Distinct titles but similar rights, 48 246 GENERAL INDEX. Joinder of distinct matters, 46, 47 May be raised by court on own motion, at any time 96 Objection of, how supported, 45 Proper way to raise objection, by parties, 50 Eule 26, 46 Statement of rule regarding, 49 N. NE EXEAT, Writ of, 123, 125 NEGATIVE PLEA, What is 98 O. OEDEES, PEO OONFESSO, 82, 83 OEDEES AND DECEEE'S IN EQUITY, Prepared by counsel, 95, 96 OEE TENUS, DEMUEEING, 93 O VEEEULING DEMUEEEE, Order for, 94 MOTION TO DISMISS, Order, 95 P. PAETIOULAE WOEDS, in forms of action at common law, . 15 PAETICULAEITT, in pleading, 44 PAETIES, Y2, 76 Bill should state why all, are not named, 32 Classification of, 73 Competent to testify, at law, 19 Indispensable, 75 New rules as afiecting, 76-77 Nominal, 73 Proper 74 Eule as to 72 PEEPETUATION OF TESTIMONY, Practice regarding, 58-59 See, also, BILLS TO PEEPETUATE TESTIMONY, and BILLS TO EXAMINE DE BENE ESSE. PETITIONS, 119 PLEADING, Allegations on information and belief, 42 Certainty and definiteness, 41-42 Equity, — Classification of, 16 Conclusions of law, 43-45 Defined, 15 Origin of, 1 Familiar vices of, 43 GENERAL INDEX. 247 Further particulars, (Eule 20), 43 Law and Equity, Fundamental differences, 15-17 Multifariousness, 45 50 Purchaser seeking specific performance must tender pur- chase-money, 43 Scandal and Impertinence, 50 PLEAS, ....97,10Y A single defense which will bar right to discovery, 21 Abolished, Eule 29 17-92, 105-106 Advantages of, 100 An excuse for not answering, 21 Benefit of, saved to defendant at hearing, 22, 101 Classification of, 98 Defenses raised by answer, under old rules, (Rule 39), 105 Definition, 97 Determination of, 101 Form of, 87 Illustrations of, 99, 100 Issues raised by, 103 Legal sufficiency of, how determined, 100 Must set up a single defense, 97 New rules make mandatory that which was optional under Eule 39 (old rules), 107 Not earliest form of defense, 20 Ordered to stand for an answer, with liberty to except, 22, 101, 102 Eeply of plaintiff to, 100, 101 Supported by an answer, 22 When used, 87 Whether defendant is entitled to answer over, 103-104 PEATEES, For special and general relief, 32 PErVTLEGED COMMUNICATIONS, 22, 25 PEO CONFESSO, Decree, Plaintiff entitled to, upon defendant's default, 82 Made final, Eule 17, 82 Vacating, 82 Order, Plaintiff to have, in event defendant fails to plead or answer, 95 Form of, 95 PROCESS, 78-83 Constructive service of, 80 Mesne and final, '8 Personal service of, 78-79 Substituted service of, 80 Writ of subpoena, '''8 Q. QUIA TIMET, Bill of, 48,49 248 GENERAL INDEX. E. EECEIVERS, 120-121 EECORD, In Equity cases, 15 EEFEEENCES, 121-123 EEFOEMATION OF CONTEACT, Bill for, whether will lie in supposed case, 39 EE-HEAEING, 146 Disposition of, 146 Ground of, Eules 69 and Y2, 146 Petition for 146 Time for, 146 EELIEF, Alternative, 48 Inconsistent with case made by bill 31 Predicated upon statement of ultimate facts 32 EEM, Proceedings in. May be had upon constructive service, 80 EEMEDT AT LAW, Waiver of objection. Contrary opinion regarding, 96 EEMEDIES, Adequate and complete, at law, 8, 9, 10 Mistake in choosing, transfer of cause, 10-11 EEPLEADEE, Unknown in chancery practice, except as bill of review, , . 102 EEPLIOATION, 116, 118 Abolished by new rules. Rule 31, 17 Filing, and effect of, 101 Issues raised by, 102 Special, abolished at an early date, 101 EES, Affected by decree, must be within jurisdiction of court, . 80 Jurisdiction over, in proceedings in rem, , 12 EBVIEW. See BILL OF EEVIEW. EIGHTS, SUBSTANTIAL, Of parties, not affected by new rules, 17 not impaired by abolition of plea and demurrer, 92 EOTAL EDICTS 2 EULES IN EQUITY. {See Appendix.) S. SCANDAL AND IMPEETINENOE, Defined 50-51 Objection taken, 52-53 GENERAL INDEX. 249 Eules 21 and 24 52-53 Tested by motion to strike out, 113 SEEVICE, CONSTRUCTIVE 80 SERVICE, PERSONAL, Sust be had to confer jurisdiction in actions in personam, 11, T9 SERVICE, SUBSTITUTED, Illustration of, 80 SET-OFF AND COUNTERCLAIM, Defined 05 Included in answer, 110 SPEAKING DEMURRER. See DEMURRER. SPECIFIC PERFORMANCE,— Bill for, whether will lie in supposed case, 39 STATUTE OF LIMITATIONS,— Running of, as to transfer of cause to proper forum, 10-11 STATUTE OF WESTMINISTER II, 3 SUBPCENA, What is called for, by, 18 SUBSTANCE, Defects of. May be raised at any time, 96 SUIT IN EQUITY, Commencement of, 29 SUPPLEMENTAL BILL, 55 Practice regarding, 55 When used, (Rule 34), 55 SUPREME COURT, District of Columbia, Jurisdiction, 33 T. TENDER, 43 TESTIMONY DE BENE ESSE, When may be taken, 60-61 TESTIMONY, Perpetuation of. Jurisdiction of Equity as to, 57 TRANSFERS, Causes wrongly commenced, from law to equity or vice versa, 10-11 TRIAL BY JURY, Right to, only at law, 8, 9 U. UNITED STATES COURT. See COURTS, U. S. V. VARIOUS FORMS OF BILLS DEFINED, 54 VERIFICATION OF BILL, 32-33 250 GBNEEAL INDEX. W. WESTMINSTER, STATUTE OF, 3 "WITNESS, Credibility of, impeachment of, 20 WRITS. See CHANCERY. WRITTEN INSTRUMENTS, How pleaded, 42