^ ^.^1 1.^5 
 
 ^=tV)I I 
 
 ^ ' Nii*< ^ 
 
 i>i^ >t?Aavaflnii^ ^JJudnvsoi^ 
 
 ,^l IKrri II 
 
 
 
 i&AMvaa 
 
 
 
 ^VUVANLH^^ 
 
 ^^^tllBRARYt;/^ AjStUBRAfiYO^ 
 
 B 5 
 
 ^ "^/sMAiNii-aftV** '^AOJiivjjo'f^ "^^Sfojnvjvjo^^ 
 
 ^\«cNlvt^fV/^ 
 
 '^mmw'^ 
 
 1^ 
 
 
 >/4 ^lOSANCnfX>. 
 
 T O 
 
 i 3 
 
 o u. 
 
 .4..0FCAIIFOR'^ ^.OFCAIIFO% 
 
 .^MEUNIVFR% 
 
 ^lOSANC 
 
 %a3AINf 
 
 
 AMFUN(VER5/a 
 
 o 
 <f?133NVS01^ 
 
 ^•VOSANCElfXv^ 
 
 %a3AINn3V\V' 
 
 ^>NMIBRARY(?^ 
 ^ 1 ir^ ^ 
 
 ^5^t•llBRAI 
 
 5 
 
 ^<yOJ|]V3JO'^ 
 
 %ojnv: 
 
 ?^ ^0FCAlIF0R5i^ 
 
 .^MEUNIVER5/A 
 
 i"^ ^<?Aiivaan# ^jjuonv-soi^ 
 
 ^•lOSANCElfj-^ 
 
 "^^/smmi^ 
 
 ^.OFCAIIFOP^ 
 ^ 11 ./La A S 
 
 ^OFCAlll 
 
 ^^Aavjiaii# ^^Aavaa 
 
 '■/A ^10SANCEI/J> 
 
 *P o 
 
 2 = 
 
 so 
 
 -< 
 
 )i 
 
 ?3 C> 
 
 ^^^l•llBRARY•(7^ 4,>NlllBRARYc/^ ^^M^UNIVtlfi/;5 
 
 ^ %a3AINfl-3WV^ %Om>i^^ '^<!/0JllV0-3O^ <^130NVS01^ 
 
 >//^ 
 
 ^lOSANCElfj^ 
 
 ^i i 
 
 ^ %a3AINn-3WV^ 
 
 v^ ^.If. .::^ 
 
 ^OFCAIIFOJ?^ ^OFCAIIFOI?^ 
 
 "^OAavMiH^ ^CAava8n#' 
 
 ^^ME•UNIVER% 
 
 '^J3133NVS0\^ 
 
 '%a3AINfl 
 
 ■%a3AiNn 
 
 0^, a,\NHIBRARY(?a, 
 
 % ^OFCAlIFOS'/i^ 
 
 IS Si:? ^TTT** 1 S 
 
 i^^ 
 
 >&Aavaani^ 
 
 .^\\E•UNIVER5•/A 
 
 ^^lOSANCElfJ^ 
 
 aMEUNIVERJ/a 
 
 '^/miNn-3Viv^ 
 
 <Ql33flVS01^ 
 
 %IUAINA-3WV^ 
 
 f^lUBRARYQr 
 
 ^EllBRAI 
 
 ^i^OJnVDJO^ 
 
 ^.nojnv] 
 
 ^lOSANCEl^^ ^OFCAlIFORj^ ^OFCAlIf 
 
 ^oAHvaani^ 
 
 ^omu
 
 
 liirti 
 
 
 
 ? 1 ii-^ ^ 
 
 
 vnioNivtk'V/. 
 
 
 
 ^.OFCAllFOff^ 
 
 ^^^OFCAllFOff^ 
 
 >t?Aava8ni^'^ 
 
 
 ^^AHvaani^ <i5i3DHVS(n^ 
 
 CO 
 
 ^.OFCAllFORj^ 
 
 ^ .— .'f I- ^ 
 
 \^t UNIVtlfV/i 
 
 vKlOSANCn^ 
 
 
 ■^/^JlBAINn-JWV 
 
 ^lOSANCnfj^ 
 
 o 
 
 '^J'ilDNVSOl^^ %a3AJNrt-3WV 
 
 S 1 tr^ ^ 
 
 ^imKmo/: 
 
 
 ^<sojnvDjo'^ 
 
 ^OF'CAlIFOSJi^ ^OFCAIIFOB'^ 
 
 
 ^(?Aavaan-3^ 
 
 9 
 
 o 
 "^J5133NVS01^ 
 
 .^ME•UNIV!Ry/A 
 
 o 
 <ril3DNVS01^ 
 
 
 NMMINrV!l?y/,ji. ^lOSANCfl^y^ 
 
 A;OFCAlIFOM^ ^.OFCAIIFOM^ 
 
 
 I 
 
 "^i^lJONVSOl^ 
 
 ^•losAvcner^ 
 
 %a3AIN(l3WV 
 
 A^jStllBRAffYQ^^ 
 
 WnvDjo"^ \oimiQ'^ "^^JiJDNVsoi^ "^/jaaAiNnjwv^ ^^ojiwdjo^ 
 
 ^OFCAllFORfe, 
 
 >&Aavnani^ 
 
 
 Aj<lOSANCnfj>. 
 
 1 
 
 ^W!•UNIVFR5'//. 
 
 
 4^llIBRAirVeK 
 
 5 1 ir" ^ 
 
 ^«JOJI1V3JO^ 
 
 A^^-UBRABY(7/^ 
 
 ^mivDio'^ 
 
 ^lOSANCarjv. ^OFCAllFOff^ ^OFCAIIFOR^ 
 
 f 
 
 <ril33NVS01^ 
 
 "^aMINftJWV^ 
 
 >&AHVHani^ 
 
 ^<?Aava8n# 
 
 .^MFCNIVTRS//;, 
 
 "^JJHONVSm^ 
 
 ^t^ruMivTOj^. 
 
 2'
 
 btnio 
 
 >4<^^Y'^
 
 A 
 
 TREATISE 
 
 PLEADINGS 
 
 IN SUITS IN 
 
 THE COURT OF CHANCERY, 
 
 BY ENGLISH BILL. 
 
 BY JOHN MITFORD, ESQ., 
 
 (THE LATE LORD REDESDALE.) 
 
 "1 
 
 ♦ 
 
 COMPRISING THE NOTES OF 
 
 GEORGE JEREMY, ESQ., OF LINCOLN'S INN, BARRISTER AT LAW, 
 CHARLES EDWARDS, ESQ., COUNSELLOR AT LAW, NEW-YORK, 
 
 AND A LARGE BODY OF 
 
 ADDITIONAL NOTES, 
 BY JOSIAH W. -SMITH, B. C. L., 
 
 Of Lincoln's Inn, Barrister at Law, Editor of Fearne on Remainders, and author of a 
 Treatise on Executory Interest. 
 
 SIXTH AMERICAN, FROM THE FIFTH LONDON EDITION, 
 
 WITH COPIOUS AMERICAN NOTES, 
 BY JOSEPH W. MOULTON, ESQ., 
 
 COUNSELLOR AT LAW, NEW-YORK. 
 
 N E W - Y R K : 
 
 JOHN S. VOORHIES, LAW BOOKSELLER AND PUBLISHER. 
 
 PHILADELPHIA: 
 
 T. & J. W. JOHNSON. 
 
 1849.
 
 T 
 \$A9 
 
 Entered according to Act of Congress, in the year 1849, 
 BY JOHN S. VOORHIES, 
 
 In the Clerk's Office of the District Court of the United States for the 
 Southern District of New- York. 
 
 NEW-TORK: 
 
 PRINTED BY WILLIAM OSBORN, 
 
 TKIBtJNE BUILDINGS.
 
 3f 
 
 u. 
 
 tl 
 
 AMERICAN EDITOR S PREFACE. 
 
 Fifteen years have elapsed, since the last 
 American edition of this treatise appeared, under 
 the supervision of Charles Edwards, Esquire. 
 The editor of this edition has looked into subse- 
 quent American authorities, and preserved, in 
 brackets, Mr. Edwards' notes in the form in which 
 they appeared, excepting, where an occasional 
 omission, transposition or slight alteration would 
 have been deemed admissible by him. 
 
 The editor has adopted a mode of noting, which 
 may be acceptable to the student and practising 
 solicitor. Reporters' head notes are sometimes 
 very inaccurate or deficient ; he has therefore exa- 
 mined the body of the opinions of the court, and 
 thence deduced the rule, and given in the language 
 of the court, or in a condensed form, the principle 
 and reason. In this way he has, so far as the 
 time allowed for preparing the edition permitted, 
 endeavored to follow, in some measure, the spirit 
 in which the original work was conceived and 
 
 77G790
 
 IV AMERICAN EDITORS PREFACE. 
 
 executed ; and to save to the solicitor or counsel 
 the necessity of groping through a long case or 
 opinion to discover the precise point referred to, he 
 has noted the page w^here it may be seen, and not 
 merely the page of the case. 
 
 The London editor confines his notes to actual 
 decision, as "mere dicta and opinions he thinks 
 tend to mislead," (Pref. ix.) The American edi- 
 tor has not implicitly follow^ed his course. In this 
 country our system of equity pleading and pro- 
 cedure, are more varied and fluctuating than ir^ 
 England. Each state has its own system, and the 
 United States' Courts theirs ; but all are, in many 
 respects, upon the English model. Nevertheless 
 points are constantly arising, and the spirit of pro- 
 gress that demonstrates the presence and vigor of 
 the democratic principle of our institutions, by no 
 means diminishes the number of vexed questions 
 that spring from the collision of free opinion, and 
 the conflicts of our practical jurisprudence. ' Mere 
 dicta and opinions,' therefore, of our chancellors 
 and judges, are regarded as valuable directions to 
 the practitioner. Indeed, our courts, not unfre- 
 quently, volunteer direction or suggestions irrele- 
 vant to the exact issue or merits of the case, for 
 the sole purpose of preventing useless litigation 
 and expense. And if] as may be but rarely, such
 
 AMERICAN EDITOR S PREFACE. V 
 
 direction mislead the whole power of the court 
 over amendment and costs, is of course, benefi- 
 cially exerted to remedy the mischief 
 
 In truth, no inconsiderable portion of Lord 
 Redesdale's Treatise is made up of opinion, rest- 
 ing on no settled basis of approved decision, and 
 leaning for support, amid the conflicts of law on 
 an intricate science, solely upon his own sound and 
 discriminating judgment. Nevertheless, and as 
 remarked by the chancellor, in Bogardus v. Tri- 
 nity Church, 4 Paiges R. 195, "His opinion 
 upon a case of equity pleadings, is always es- 
 teemed the highest authority." 
 
 This allusion to the high authority of Lord 
 Redesdale, is not singular. In England, his treatise 
 is " received by the whole profession, as an autho- 
 ritative standard and guide." It was regarded on 
 its appearance, and characterized by one of the 
 most scrupulously hesitating, yet able chancellors 
 of England, as " a wonderful effort." (See Pref 
 to the present London ed., vii., viii.) 
 
 In the United States, it has been esteemed, by 
 the courts and profession, ever since its introduc- 
 tion, a standard authority, so far as its principles 
 applied to our peculiar judicial organizations. 
 "Lord Redesdale, in his excellent Treatise on 
 Equity Pleadings," is the usual mode of quotation
 
 Vi AMERICAN EDITOR's PREFACE. 
 
 by our most distinguished chancellors and judges. 
 Like Blackstone, Mitford has become a legal 
 classic. A strict analysis of both these eminent 
 authors, would, most unquestionably, disclose some 
 defects of arrangement. Very few writers, not ex- 
 cepting those who have attempted to remedy the 
 presumed defects of Blackstone and Mitford, could 
 bear a strict scrutiny into their own substitutions : 
 and, notwithstanding Sergeant Stephens has at- 
 tempted to remodel the former, and Justice Story 
 has incorporated, under a new arrangement, the 
 greater part of the latter, yet, the admirers of legal 
 genius will still seek the identical Blackstone and 
 Mitford, in their original arrangement. 
 
 In New- York, a radical re-construction of the 
 judiciary system, has recently taken place, and a 
 code of procedure adopted. The formal parts 
 of Equity Pleading are abrogated. But the prin- 
 ciples of Equity Pleading, interwoven as they are 
 with every lucid development of the merits of a 
 complaint or defence, are unaffected by those re- 
 forms, and must remain as an essential part of a 
 skilful practitioner's knowledge, in presenting a 
 concise and correct statement of the premises, on 
 which relief is asked, or of the defence by which 
 such relief is resisted. J. W. M. 
 
 New- York, May, 1849.
 
 PREFACE 
 
 TO THE 
 
 FIFTH LONDON EDITION, 
 
 By JOSIAH W. SMITH, Esq. 
 
 The fourth edition of this admirable Treatise was 
 pubHshed in the year 1827. The long interval 
 which elapsed before it became out of print is 
 partly to be attributed to the fact that the demand 
 for a work on equity pleadings is almost entirely 
 limited to the Chancery Bar, and partly to be as- 
 cribed to the publication of other works on the 
 subject, which had the advantage of containing 
 many cases reported since the publication of the 
 fourth edition of this Treatise. The interval above 
 alluded to had no connexion with the existence of 
 any unfavourable opinion of this work, either 
 when viewed by itself, or when compared with 
 any more recent production ; for, as the work was 
 originally characterized by Lord Eldon as " a 
 wonderful effort to collect what is to be deduced
 
 Vlll PREFACE TO THE FIFTH EDITION. 
 
 from authorities, speaking so little what is clear ;"* 
 so, it was truly remarked by Sir Thomas Plumer, 
 that this book " has ever since been received by 
 the whole profession as an authoritative standard 
 and guide ;"t and the same remark is equally ap- 
 plicable to it at the present time. 
 
 This edition is reprinted verbatim from the 
 fourth edition, including the references and notes 
 added thereto by George Jeremy, Esq., of Lin- 
 coln's Inn, which are printed in double columns 
 under the text. The additions by the present 
 editor consist of a Marginal Analysis^ of Notes 
 printed across the page, under Mr. Jeremy's notes, 
 and of a long Note on Parties, for which the end 
 of the volume was considered the more conve- 
 nient place. 
 
 The present editor's notes comprise the enact- 
 ments and orders, relating to the subject of equity 
 pleading, which have been made within the period 
 extending from the beginning of the year 1826, 
 which was shortly before the publication of the 
 fourth edition, down to the present time with the 
 decisions reported within the same period, whether 
 in the octavo Reports, the Law Journal, or the 
 Jurist, to the number of about six hundred. 
 
 * 9 Ves. 54. t 2 Jac. & W. 152.
 
 PREFACE TO THE FIFTH EDITION. IX 
 
 The endeavour of the editor has been, to divest 
 the cases of those particulars which are of no use 
 to the student, and have no essential relevancy to 
 the matters with reference to which such cases are 
 consulted by the practitioner, and to accomplish 
 the difficult task of moulding the essential parts of 
 the cases, and the reasons of the decisions, where 
 any are expressed, into succinct yet clearly ex- 
 pressed propositions, placita, or rules, in such a 
 way as to exhibit the points and principles of 
 pleading which the decisions in those cases serve 
 to establish. 
 
 He hopes that the notes he has added will be 
 found to consist of a precise and perspicuous enun- 
 ciation of what may be relied on as matter of 
 actual decision. Mere dicta and opinions he has 
 passed by, as too often tending to mislead. He 
 has also for the most part abstained from stating 
 general propositions founded on a small number 
 of particular cases, as liable to the same objection. 
 And while he has avoided giving the cases in the 
 narrative or statement form, comprising names, 
 dates, and other unnecessary particulars, he has 
 still endeavoured to preserve, in the terms of the 
 placita, the essential, specific features of each case, 
 because, if he had not, such placita would not ac- 
 quaint the practitioner with the degree of resem-
 
 X PREFACE TO THE FIFTH EDITION. 
 
 blance or material difference between the cases 
 from which they are derived and the cases occur- 
 ring in practice with reference to which they may 
 be consulted. The following quotations may suf- 
 fice as illustrations of the propriety of the course 
 thus pursued : " That case, so far as it applies to 
 the present, was a mere dictum. The decision it- 
 self is not applicable!* — " The words attributed 
 to me were not necessary for the purpose of the 
 decision : and nothing except the decision is 
 authority which binds."^ — " It is true that the 
 dictum of Lord Cottenham is more generally ex- 
 pressed ; but all dicta should be consti'ued ac- 
 cording to the circumstances of the case in which 
 they are found. "J — " It is very difficult to say that 
 these particular cases could have been decided 
 otherwise than they were ; but the marginal notes 
 go much further than the judgments!' § 
 
 At the time when the following Treatise was 
 written, the books on equity jurisprudence or juris- 
 diction and on equity practice were of a very 
 meagre kind ; and on this account there are parts 
 
 * See Sloman v. Kelli/, 4 Y. & C. Eq. Ex. 172. 
 
 t See James v. Herrioi, 5 Law J. (N. S.) Ch. R., 133 ; and com- 
 pare Bedford v. Gates, i Y. & C. Eq, Ex. 21, with Kimher v. 
 Ensworth, 1 Hare, 293. 
 
 I Alderson, B , in Daviesv. Qiiarterman, 4 Y. & C. Eq. Ex. 722, 
 
 § Wigrara, V. C. in Malcolm v. Scott, 3 Hare, 63. And see 
 Sharpe v, Taylor, 11 Sim. 50 ; and Barnard v. Laing, 6 Jur. 1050.
 
 PREFACE TO THE FIFTH EDITION. xi 
 
 of this work which relate to jurisprudence or j u- 
 risdiction and practice, rather than to pleading. 
 Of course the notes of the present editor are al- 
 most exclusively confined to pleading, as that is 
 the proper subject of the book, and as the other 
 subjects now occupy a vast space, and have been 
 separately and ably discussed by other writers. 
 
 In extenuation of any inaccuracies and defects 
 which may exist notwithstanding the great care 
 which has been bestowed by him, he must plead a 
 pressure of professional business towards the close 
 of his editorial labors, which rendered it an ex- 
 tremely arduous and exhausting effort finally to 
 complete his notes, and to superintend the print- 
 ing of the volume. 
 
 J. W. S. 
 
 8, Old Square, Lincoln's Inn.
 
 PREFACE 
 
 TO THE 
 
 FOURTH LONDON EDITION, 
 
 BY GEORGE JEREMY, Esq. 
 
 Lord Redesdale having honoured me with that 
 confidence which was necessary to my superin- 
 tending a new edition of the following highly valu- 
 able work, I proposed to examine the authorities 
 cited in the last edition of it, and to add the refe- 
 rences to such new cases as might appear to me 
 to elucidate the subject, a plan in which his Lord- 
 ship was pleased to concur. In the additions ac- 
 cordingly made by way of note, I have endeav- 
 oured, for the most part, to confine myself to the 
 mere citation of authorities, generally selecting 
 those of the latest date ; although I have in some 
 instances, where the decisions did not directly 
 sustain or precisely apply to his Lordship's pro- 
 positions, but where, nevertheless, notice of them 
 seemed material, made such remarks as were ne- 
 cessary to their introduction. In these respects I 
 have been led into greater detail than was origi- 
 nally intended ; but it is hoped that the practical
 
 XIV PRFACE TO THE FOURTH EDITION. 
 
 utility of the present publication will be thereby 
 increased. In referring to the authorities, I have 
 made the distinction, which it is now usual to 
 adopt, between decisions and dicta, by citing the 
 name of the case in the one instance, and the page 
 of the report in the other. I have also deemed it 
 expedient to render the index more copious and 
 precise. His Lordship has made some few addi- 
 tions and alterations in tl^e text, but I have not 
 been instrumental in withdrawing from the Pro- 
 fession any part of the work itself And here I 
 may be permitted to remark that it has been a 
 subject of great interest to me, in the course of my 
 inquiries, to perceive that this work, which in its 
 outline and substance was the original treatise 
 upon equity pleading, has from the time of its first 
 pubhcation been so far the guide to subsequent 
 decisions as to have rendered any material cor- 
 rection, or even qualification of the general prin- 
 ciples explained in it, wholly unnecessary. 
 
 G. J. 
 
 1, New Square, Lincoln's Inn.
 
 LORD REDESDALE'S PREFACE 
 
 THE THIRD EDITION. 
 
 The materials from which the first edition of this 
 Treatise was compiled were not very ample or 
 satisfactory ; consisting, principally, either of mere 
 books of practice, or of reports of cases, generally 
 short, and in some instances manifestly incorrect 
 and inconsistent ; and the author had had little 
 experience to enable him to supply the deficien- 
 cies of those materials. The communication of 
 information, and the assistance of experience, 
 were earnestly solicited by the preface to that edi- 
 tion, but with little effect. Four-and-thirty years 
 have since elapsed ; and when, at the distance of 
 seven years from the first publication, the second 
 edition was prepared for the press, such observa- 
 tions as had occurred to the author in practice, 
 and such notes as he had collected, were the 
 principal means of improvement which he posses- 
 sed ; and he was then too much engaged in busi- 
 ness to give that attention to the subject which it 
 required. Nearly eight-and-twenty years have
 
 XVI PREFACE TO THE THIRD EDITION. 
 
 since passed ; and many volumes of reports have 
 been published, and some treatises have appeared 
 (particularly those by Mr. Fonblanque and Mr. 
 Cooper), from which much assistance might have 
 been derived. During the greater part of this pe- 
 riod the author was not only unwilling to engage 
 in the labor of preparing a new edition, but disa- 
 bled, by various avocations, from attempting to 
 make any important additions. Long absence 
 from the bar, the consequent want of the habits of 
 practice, age, the enjoyment of repose, and the in- 
 dolence which that enjoyment too often produces, 
 have increased his unwillingness to undertake a 
 work of labor ; and that which is now offered is 
 little more than a republication of the second edi- 
 tion, with references to some cases since reported ; 
 a few additional notes of cases not reported ; some 
 corrections of apparent errors ; and some exten- 
 sion of parts which appeared to have been most 
 imperfectly treated in the former editions. It is 
 therefore far from satisfactory to himself; and 
 would not have been now given, if he had not been 
 assured that even a republication of the last edi- 
 tion, with all its imperfections, was desired by the 
 Profession.
 
 CONTENTS. 
 
 •),* The pages here referred to are those in the margin within brackets. 
 
 INTRODUCTION. 
 
 Of the extraordinary jurisdiction of the court of Chancery, and of the manner in which suits to that 
 jurisdiction are instituted, defended, aud brought to a decision ...... 1 
 
 r 
 
 1. Of Bills. Chap. 1. 
 
 f Chap. I. 
 Sect. I. 
 
 by whom, and< 
 against wiiom, 
 a bill may be 
 exhibited . 21 
 
 1. by 
 « whom 
 
 21. 
 
 1. On behalf of the" 
 crown and of those who 
 partake of its preroga- 
 tive or claim its parti- 
 cular protection 21 
 
 -{ 2. On behalf of bodies') 
 politic and corporate, 
 and persons who do not 
 partake of the preroga- - 
 tive of the crown, and 
 have no claim to its par- 
 ^ticular protection . 24, 
 
 by the king's attor- 
 ney-general or other 
 officer ... 21 
 
 1. alone < 
 
 by them- „ , 
 selves ^2. "nder 
 the pro- 
 tection 
 .of others 
 
 f Bodies politic and corpo- 
 
 Irate, and all persons of full 
 age, not being married wo- 
 men, idiots, or lunatics, 24 
 
 fl. Infants .... 25 
 
 ■| 2. Married women, . 28 
 
 3. Idiots and lunatics 29 
 
 1. Where the rights' 
 
 of the crown, or of those 
 
 who partake of its pre- 
 
 2. against J rogative, or claim its 
 
 whom. I particular protection,are 
 
 I concerned. 
 
 t 2. In all other cases 
 
 against the king's attorney-general, 
 or other proper officer . . 30 
 
 fl. Origi- 
 nal bills, 
 33, 34, 
 36, 51. 
 
 Chap. I. 
 Sect. II. 
 
 Of the several \ II. 
 kinds and dis- 
 tinctions of 
 bills . . 33 
 
 '1. Praying relief, 34, 37 
 
 2. Not praying relief. 
 34, 5 r 
 
 against all bodies politic and corporate, and all per- 
 sous, married women with their husbands, and 
 idiots and lunatics with their committees . 30 
 
 1. A bill praying the decree of the court touching 
 I some right claimed by the plaintiff in opposi- 
 
 ■l tion to the defendant 34, 37 
 
 I 2. A bill of interpleader 34, 48 
 
 1^3. A certiorari bill ... ... 
 
 1. A bill to perpetuate the testimony of 
 witnesses 
 
 2. A bill for discoverv 
 
 34, 50 
 
 34, 51 
 34, 53 
 
 Bills not original 
 
 33,34,551 -• 
 
 A supplemental bill 34, Gl, 75 
 
 A bill of revivor 35, G9, 76 
 
 A bill of revivor and supplement 35, 70, 80 
 
 A cross bill 35, 80 
 
 A bill of review 35, 83 
 
 fl- 
 2. 
 3. A bill in nature of a bill of review 
 
 35, 92 
 
 III. Bills in the nature of original 
 bills 33, 35, 80 
 
 4. A bill to impeach a decree on the ) oc go 
 
 ground of fraud ) ' " 
 
 \ 
 
 A bill to suspend or avoid the execu- 
 tion of a decree 
 
 6. A bill to carry a decree into execution 
 
 7. A bill in tlio nature of a bill of revivor 36, 71, 79 
 
 8. A bill in nature of a supplomen- 
 V\\ bill 
 
 35, 94 
 
 35, 95 
 
 71, 79 
 
 36, 72, 93
 
 XVllI 
 
 CONTENTS. 
 
 I. Of Bills. Chap. I. — continued. 
 
 i Chap. I. 
 i Sec. III. 
 Of the frame 
 and end of the 
 ■ several kinds of 
 I bills, and of in- 
 \^ formations . 36 
 
 I. 
 
 Origi- 
 
 nal 
 
 bills,- 
 
 
 36 
 
 1. Praying relief. 37 
 
 '1. A bill praying the decree of the court touching 
 some right claimed by the plaintiff in opposi- 
 tion to the defendant • . . 37 
 
 2. A bill of interpleader 48 
 
 .3. A certiorari bill 50 
 
 n -KT . ,. r( 1. A bill to perpetuate the testimony of witnesses, 51 
 
 2. Not praymg relief 1 ^ ^ ' 
 
 ^^ i 2. A bill for discovery 53 
 
 II. Bills not original 
 
 III. Bills in the nature of 
 original bills . . . 
 
 \IV. Informations 
 
 fl. A supplemental bill 61, 75 
 
 55 J 2. A bill of revivor 69,76 
 
 1.3. A bill of revivor and supplement 
 
 70, 80 
 
 80 
 
 f 1. Cross bill 80 
 
 2. Bill of review • ... 83 
 
 3. Bill in nature of a bill of review .... 92 
 
 4. Bill to impeach a decree on the ground of 
 
 fraud 
 
 ' 5. Bill to suspend or avoid the execution of a 
 
 decree 
 
 92 
 
 94 
 
 6. Bill to carry a decree into execution . . 95 
 
 7. Bill in the nature of a bill of revivor . 71, 97 
 . . 90 1. 8. Bill in nature of a supplemental bill . 72, 98 
 
 Chap. II. 
 Of defence to 
 bille . .102 
 
 1. On behalf of^ 
 the crown, or of 
 
 those who partake 
 
 By whom a I , .. 
 ' < of itsprerogative,or 
 
 are under its parti- 
 
 cularprotection, 1 02 
 
 Chap. II 
 Sec. I. 
 
 suit may be 
 defended, 102 
 
 By the king's attorney-general, or 
 other proper officer . . . 102 
 
 J 
 
 2. On behalf of 
 bodies politic and 
 corporate, and of 
 persons who do not 
 partakeof the prero- ■{ 
 gative of the crown, 
 aud have no claim 
 to its particular pro- 
 tection . . 103 
 
 j- Bodies politic and corporate, 
 
 1. By themselves, I and all persons of full age, 
 
 103 I not being married women, 
 
 I. idiots or lunatics . 103 
 
 fl. Infants .... 103 
 2. Under protection [ 
 
 of, or jointly with, -^ 2. Idiots and lunatics . 103 
 
 others . . 103 
 
 ts. Married women . 104
 
 CONTENTS. 
 
 XIX 
 
 I. Of Bills. Chap. 11.— continued. 
 
 / 
 
 Chap. II. 
 
 Sect. II 
 
 Of the 
 
 nature of the 
 
 various 
 
 modes of 
 
 defence to a 
 
 f Chap. II. 
 Sect. II. 
 Part I. 
 Demurrers, 
 106, 107 
 
 bill 
 
 106 
 
 I. to 
 
 original 
 bills, 
 109 
 
 I. to re- 
 lief, 110 
 
 
 
 I. That the 
 subject is not 
 
 witiiin the 
 jurisdiction ■< 
 of a court of 
 equity .110 
 
 lo *' 
 
 II. That some 
 other court of equity 
 has the proper juris- 
 diction . 110, 151 
 
 III. That the 
 plaintiff is not en- 
 titled to sue by 
 reason of some per- 
 sonal disability, 
 
 110,153 
 
 IV. That he has 
 no interest in the 
 subject, or no title 
 to institute a suit 
 concerning it, 
 
 110,154 
 
 V. That he has 
 no right to call on 
 the defendant con- 
 cerning the subject, 
 
 110,158 
 
 VI. That the de- 
 fendant has not 
 that interest in the 
 subject which can 
 make him liable to 
 the claims of the 
 plaintiff . 110,160 
 
 VII. That for 
 some reason, found- 
 ed on the substance 
 of the case, the 
 plaintiff is not en- 
 titled to relief, 
 
 110,163 
 
 1. Where the 
 principles of law 
 by which the or- 
 dinary courts are 
 guided give a 
 right, but the 
 powers of those 
 courts are not 
 sufficient to af- 
 ford a complete 
 remedy, 111,112 
 
 1 . Where no 
 remedy, or 
 no complete 
 remedy, 
 
 112 
 
 2. Where 
 remedy at- 
 tempted is 
 defeated by 
 fraud or ac- 
 cident, 127 
 
 2. Where the courts of ordi- 
 nary jurisdiction are made 
 instruments of injustice, 
 
 111, 131 
 
 3. Where the principles of 
 law by which the ordinary 
 courts are guided give no 
 right, but upon the princi- 
 ciples of universal justice 
 the interference of the ju- 
 dicial power is necessary 
 to prevent a wrong, and the 
 positive law is silent, 
 
 111, 133 
 
 4. To remove impediments to 
 the fair decision of a ques- 
 tion in other courts, 
 
 111, 134 
 
 5. To provide for the safety of 
 property in dispute pending 
 a litigation . . Ill, 135 
 
 6. To prevent assertion of 
 doubtful rights in a manner 
 productive of irreparable in- 
 jury Ill, 137 
 
 7. To prevent injury to a third 
 person by the doubtful title 
 of others . . . 112, 141 
 
 8. To put a bound to vexatious 
 and oppressive litigation, 
 
 112, 143 
 
 9. To compel a discovery, 
 
 112, 148 
 
 10. To preserve testimony, 
 
 112, 148
 
 XX 
 
 CONTENTS. 
 
 I. Of Bills. Chap. 11.— continued. 
 
 VIII. That the 
 bill is doficieut to 
 answer the purposes 
 of complete justice, 
 
 110, 163 
 
 IX. That distinct 
 objects Jire con- 
 founded in the same 
 
 bill 
 
 110, 181 
 
 II. to 
 
 dis- 
 covery, 
 V^109, 185 
 
 II. to 
 every 
 other 
 
 kind of 
 bill, 
 
 201, 206 
 
 I. That the case made by the bill is not such 
 wherein a court of equity assumes a jurisdiction 
 to compel a discovery .... 185 
 
 II. That the plaintiff has no interest in the 
 subject, or no interest which entitled him to call 
 on the defendant for a discovery . 185, 187 
 
 III. That the defendant has no interest in the 
 subject to entitle the plaintiff to institute a suit 
 against him, even for the purpose of discovery, 
 
 185, 188 
 
 IV. That there is no privity of title between 
 the plaintiff and defendant, which can give the 
 plaintiff a right to the discovery . 185, 189 
 
 V. That the discovery, if obtained, cannot be 
 material 185, 191 
 
 VI. That the situation of the defendant renders 
 it improper for a court of equity to compel a 
 discovery 185, 193 
 
 1. Bills of revivor and supplemental bills . . 201 
 
 2. Crossbills 203 
 
 3. Bills of review, and bill in nature of bills of review, 
 and bills to impeach a decree, or suspend or avoid its 
 execution 203 
 
 4. Bills to carry a decree into execution . 206 
 
 5. Bills in the nature of bills of revivor, or of bills of 
 supplement 206 
 
 III. Of the frame of demurrers, and of the manner in which their 
 validity may be determined 208
 
 CONTENTS. 
 
 XXI 
 
 L Of Bill*. Chap. 11.— continued. 
 
 Chap. II. 
 Sect. II. 
 Part. II. 
 
 Pleas, 
 106, 218 
 
 1. to 
 
 original 
 bills, 220 
 
 /^ 1. to 
 relief, 
 220 
 
 fl. That the subject 
 
 is not within the 
 
 jurisdiction of a 
 
 court of equity, 
 
 222 
 
 2. That some other 
 court of equity, 
 has the proper 
 jurisdiction . 223 
 
 1. That the plaintiff is out- 
 lawed . 226 
 
 2. Excommunicated, 
 
 3. A popish recusant, 
 
 3. That the plaintiff 
 
 is not entitled to 
 
 sue by reason of/ 
 
 somepersonaldis- 1 4. Attainted 
 
 ability . . 226 , . 
 
 5. An alien 
 
 227 
 228 
 228 
 229 
 
 6. Incapable of instituting a 
 \ suit alone . 229 
 
 4. That the plaintiff is not the person he pretends 
 to be, or does not sustain the character he 
 assumes 230 
 
 5. That the plaintiff has no interest in the subject, 
 or no right to institute a suit concerning it, 231 
 
 6. That he has no right to call on the defendant 
 concerning it 234 
 
 7. That the defendant is not the person he is 
 alleged to be, or does not sustain the character 
 he is alleged to bear .... 234 
 
 8. That the defendant has not that interest in the 
 subject which can make him liable to the de- 
 mands of the plaintiff . . . 235 
 
 9. That for 
 some reason 
 founded on the 
 substance of the 
 case, the plain- 
 tiff is not en- 
 titled to relief, 
 236 
 
 1. Matters of 
 record, or as 
 of record in 
 a court of 
 Equity, 236 
 
 2. Matters of 
 record, or as 
 of record in 
 some court 
 not a court of 
 
 \, equity, 250 
 
 '1. A decree or 
 order, 237 
 
 2. Another suit 
 depending, 
 
 246 
 
 1. A fine, 250 
 
 2. A recovery, 
 253 
 
 3. A judgment 
 ,orBeutence,253
 
 XXII 
 
 I. Of Bills. Chap. II.— continued. 
 
 CONTENTS. 
 
 3. Mat- 
 ters in 
 pais, 
 258 
 
 ^1. A stated account . 259 
 
 2. An award . . . .260 
 
 3. A release .... 261 
 
 4. A will or convey ance,263 
 
 5. Circumstances bringing a 
 case within the protection 
 
 I, of a statute . . . 265 
 
 10. That supposing the plaintiff entitled to the 
 
 assistance of the court to assert a right, the 
 defendant is equally entitled to the protection 
 of the court to defend his possession . 974 
 
 11. That the bill is deficient to answer the pur- 
 of complete justice 280 
 
 1. That the plaintiff's case isnotsuch 
 as entitles a court of equity to as- 
 sume a jurisdiction to compel a 
 discovery in his favor . . _ 282 
 
 2. That the plaintiff has no interest in 
 the subject, or no interest which 
 entitles him to call on the defen- 
 dant for a discovery . . 282 
 
 3. That the defendant has no interest 
 in the subject to entitle the plain- 
 tiff to institute a suit against him, 
 even for the purpose of discovery 
 
 283 
 
 2. to discovery, 281 ( 
 
 4.Thatthesitua. 
 tion of the de- 
 fendant renders 
 it improper for^ 
 a court of equity 
 to compel a dis- 
 covery . 284 
 
 \ 
 
 1. Because the dis- 
 covery may sub- 
 ject the defen- 
 dant to pains and 
 penalties . 284 
 
 2. Because it will 
 subject him to a 
 forfeiture . 286 
 
 3. Because it would 
 betray the trust 
 reposed in a 
 counsel, attorney, 
 or arbitrator, 288 
 
 4. Because be is a 
 purchaser for a 
 valuable consi- 
 deration, without 
 notice of the 
 plaintiff's title, 
 
 288
 
 CONTENTS. 
 
 XXlll 
 
 1. Of Bills. Chap. II. — continued. 
 
 •2. to bills I 
 
 not ori- > 1 . To bills of revivor and supplemental bills 289 
 
 ginal, 288 I 
 
 ,' 1. Cross bills 290 
 
 3. to bills 
 
 in the 
 
 nature of 
 
 original 
 
 bills, 290 
 
 2. Bills of review, and bills in nature of bills of review, 
 and bills to impeach a decree, or suspend or avoid 
 its execution ...... 291 
 
 3. Bills to carry decrees into execution 
 
 293 
 
 4. Bills in tlie nature of bills of revivor, or of supple- 
 mental bills 293 
 
 1. The nature of pleas in gener£il 
 
 2. Their form 
 
 294 
 300 
 
 3. The manuer in which they are offered to the 
 
 court 301 
 
 4. The manner in which their validity is decided, 301 
 
 Chap. II. 
 Sect. II. 
 Part. III. 
 
 and dis- 
 claimers, 
 106, 306 
 
 1. The general nature of answers 
 
 2. The form of an answer 
 
 306 
 313 
 
 1. Answers/ 3 The manner in which the sufficiency of answers is decided 
 
 upon, and their deficiency supplied . 
 4. The nature and form of disclaimers . 
 
 315 
 
 318 
 
 Chap. III. 
 Of replications and their 
 consequences . 321 
 
 Chap. IV. 
 Of incidents to pleadings 
 in general . . 324 
 
 2. Demurrers, pleas, answers, and disclaimers, or any two or more of thena 
 jointly 319 
 
 1. Of general replications 321 
 
 2. Of special replications, and the subsequent pleadings anciently used, 321 
 
 3. Of subpoeua to rejoin, and rejoinder . .... 323
 
 INTRODUCTION. 
 
 Of the extraordinary jurisdiction of the Court of 
 Chancery ; and of the manner iii which suits to 
 that jurisdiction are instituted, defended, and 
 brought to a decision. 
 
 The Chancery of England has various offices and ordinary and 
 
 . T . * mi • • • ]• i* • extraordinary 
 
 lurisdictions. The most important lurisdiction is jurisdictions of 
 
 " i- " the court of 
 
 that which it exercises as a court of equity, usually chancery. 
 styled its extraordinary jurisdiction, to distinguish 
 it frjom those which are termed its ordinary juris- 
 dictions, and are chiefly incident to its ministerial 
 offices, and the privileges of its officers. 
 
 The exercise of this extraordinary jurisdiction by ^^^^^^^^ .^^_ 
 courts distinct from those usually styled courts of ci^^ed°by'distVnct 
 
 , I'll !• ^ • • ^ ^' /.courts is pecu- 
 
 common law, to which the ordinary administration oi liartothiscoim- 
 justice in civil suits is intrusted, seems to be, in a 
 great degree, a peculiarity in the jurisprudence of the 
 country, but pervading the whole system of its judi- 
 cial polity. ' The origin of these courts is involved in onjnnandjtirij- 
 great obscurity (1) ; their authority has been formerly cS °^ ^^^'^ 
 
 (1) On this subject, see Mr. Spence's very learned work on " The 
 Eq.iitablo Jurisdiction of the Court of Chancery." 
 
 The iiislory. jurisdiction, organization and practice of Equity Courts, 
 in England and in the United States, are tlie subjects of numerous 
 volumes, since Mitford'a treatise was written. " At the time it was
 
 2 EXTRAORDINARY JURISDICTION 
 
 questioned, and the subjects and limits of their juris- 
 [2] diction were then but imperfectly ascertained. Time 
 
 written, the books on equity jurisprudence or jurisdiction, and on 
 equity practice, were of a very meagre kind," and to this account the 
 English editor ascribes parts of this work which are foreign from its 
 proper subject — pleading ; and to this he has of course, almost ex- 
 clusively confined his notes. (Pref. vii.) 
 
 So far as the quest ioH of jurisdiction over parties and matters in 
 controversy, is connected with the pleadings, it necessarily forms an 
 appropriate subject of attention, as will appear in the sequel. The 
 undefined character of equity power in many of the State Courts in 
 the United States, often gives rise to that question. Indeed these 
 courts are so varied in the nature and extent of their equity jurisdic- 
 tion, as to have been classified under four heads. 1. Those in which 
 equity is administered in a court entirely distinct from the common law 
 courts, as in New Jersey, Delaware, South Carolina and Mississippi ;. 
 2. Partially so, as lately in the court of chancery of New York, and 
 by the circuit judges acting as vice chancellors ; and in Maryland, Vir- 
 ginia, Missouri ; 3. Where the jurisdiction at common law and the 
 general powers of equity are vested in one tribunal, as in New York, 
 since its chancery court was abolished, and in Vermont, Connecticut, 
 North Carolina, Georgia, Ohio, Indiana, Illinois, Kentucky, Tennessee, 
 Alabama ; 4. Where no general chancery powers are exercised by any 
 of the state courts, as in Massachusetts, Maine, New Hampshire, 
 Rhode Island, Louisiana and Pennsylvania. (See Intro, to Barbour cj- 
 Harrington^ s Equity Digest.) This classification, which may in a 
 few instances, by the recent adoption of new state constitutions, be 
 susceptible of some modification, shows at least the diversity of equity 
 jurisdiction in this country. 
 
 Under the last class in Massachusetts, certain equity powers have, 
 from time to time, been conferred upon the supreme judicial court of 
 that state. Here, as in similar courts of like limited powers, the ques- 
 tion of jurisdiction has not unfrequently arisen on statutory interpreta- 
 tion, and the construction of incidental powers. Though it is now 
 well established in that state, that the court will not take cognizsnce- 
 of any subject matter or case in equity, unless they are, authorized ex- 
 pressly so to do by statute ; yet it is equally well established that when 
 the court has jurisdiction of any subject matter or case in equity, it i& 
 clothed with full and ample power, and generally, will proceed in the 
 same manner as courts of similar jurisdiction do in England. ( Wash- 
 burn V. Goodman, 17 Pickering's Rep. 529. 519.") But where it has 
 no original jurisdiction of the matter or case, it assumes none by vir- 
 tue of any general equity power. Hence it has been decided, that it 
 has no jurisdiction over an equitable mortgage : as where a deed was
 
 OF THE COURT OF CHANCERY. 
 
 has iriven them fall establishment, and their powers 
 and duties have become fixed and acknowledged. 
 
 given and a written promise, not under seal, delivered back, to recon- 
 vey on repayment of the consideration money. (Eaton v. Green, 22 
 Pick. Rep. 526. 529, et seq.) Nor has it jurisdiction in equity over a 
 direct charge of fraud. When on other grounds it has jurisdiction of 
 the cause, and a fraud is brought in question as incidental, the court 
 must inquire into and decide it, as any other question which might be 
 incidentally put in issue in the progress of such a cause. {Flske v. 
 Slack, 21 Pick. Rep. 366. 361. Hvllavd v. Criift, 20 id. 321.) Nor 
 has the general power of reforming contracts, as a distinct branch of 
 equity jurisdiction been conferred on that court. {Babcock v. Smith 
 etal, 21 Pick. Rep. 61.) 
 
 The courts of the United States, like the state courts under the- 
 third head of the above classification, exercise a jurisdiction of mixed 
 equity and law, not regulated by state legislation nor practice. The 
 general rule is, that remedies in respect of real estate accord to the 
 law of the place. The lex loci rei sitce may be satisfied by construing- 
 local statutes so as to give validity to title, leaving the lex fori to regu- 
 late the remedies to enforce such title. But the remedies in the United 
 States courts are, by interpretation of thejudiciary act, conformed to the 
 English principles of equity and common law, not to the peculiar prac- 
 tice of the state courts. Their equity jurisdiction and jurisprudence 
 are coincident and coextensive with the English, and are not regulated 
 by the municipal jurisprudence of the state where the court sits ; and 
 their practice is based on that of the court of chancery in England, 
 not the court of exchequer. (Roberson v. Campbell, 3 Wheal. 212. 
 4 Cond. Rep. 238-9. 235, and note p. 240. Vid. U. S. v. Hnicland, 4 
 Wheat. 108. 4 Cond. Rep. 404. 408, n. Fletcher et al. v. Morey, 2 
 Story's Rep. 567. 553. Smith v. Burnham, 2 Sumner's Rep. 626.) 
 Hence, as tlieir general equity jurisdiction is not controlled nor limited 
 by state legislation, it is no objection that there is a remedy by the 
 latter. {Gordon v. Hobart, 2 Sumner's Rep. 403. 401.) (See further 
 on the equity jurisdiction of the United States and state court;-, origi- 
 nal, appellate, concurrent and assistant ; and the manner in which suits 
 are instituted, defended, and conducted to a decision here: Kent's 
 Commentaries. Story's Com. on the Constitution and on Eqtiity Juris. 
 Conklln's Treatise. Barbour's Practice. Graham on Jurisdiction. 
 Note of Amer. editor to 5 Amer. ed. of Mitford, p. 19, n. (1).) 
 
 The. principles, rules and usages of the high court of chancery of 
 England, have supplied the model also, of equitable procedure in the 
 state courts, of which some, as New York and Massachusetts, have 
 by rule, adopted the English, as the outlines of their practice, bo far as
 
 3 EXTRAORDINARY JURISDICTION 
 
 If any doubt on the extent of their duties has occurred 
 of late years, it has principally arisen from the li- 
 
 it is not repugnant to state constitution, laws, and rules of court. 
 (See in Massachusetts, 24 Pick. Rep. 419. 34.) But these have intro- 
 duced in some instances, (such as in suits for foreclosure and sale, par- 
 tition, divorce cases, judgment creditor suits, and some ot!"'ers,) modes 
 of equitable remedy and procedure, either entirely unknown or mate- 
 rially variant from the English chancery system. " The most general 
 "description of a court of equity is, that it has jurisdiction in cases 
 .^ " where a plain, adequate and complete remedy cannot be had at law — 
 
 " that is, in the common law courts. The remedy must be plain ; for 
 "if it be doubtful and obscure at law, equity will assert a jurisdiction. 
 " So, it must be adequate at law ; for if it fall short of what the party 
 "is entitled to, that founds a jurisdiction in equity. And it must be 
 "complete — that is, it must attain its full end at law ; it must reach 
 " the whole mischief, and secure the whole right of the party, now 
 " and for the future ; otherwise equity will interpose and give relief. 
 " The jurisdiction of a court of equity is sometimes concurrent with 
 ." that of courts of law ; and sometimes it is exclusive. It exercises 
 "concurrent jurisdiction in cases where the rights are purely of a legal 
 "nature, but where other and more efficient aid is required than a 
 " court of law can aflord, to meet the difficulties of the case and insure 
 " full redress. In some of these cases, courts of law formerly refused 
 " all redress, but now will grant it. But the jurisdiction having been 
 " once justly acquired, at a time when there was no such redress at 
 "least it is not now relinquished." (See the article from which the 
 above is extracted, in Encyclopedia Americana, and approved by Profes- 
 sor Amos in his lecture upon " What are Courts of Equity ?" and edi- 
 tor's note to 6 Amer. ed. p. 25, n. (1).) 
 
 But the court of chancery will not refuse jurisdiction of a case 
 merely on the ground that complainant has a perfect remedy at law, if 
 the parties have submitted themselves to the jurisdiction of the chan- 
 cellor without objection. In such case when the parties expressly 
 stipulate to waive the objection and submit the case, the court will 
 apply the maxim, modus et conveniio vincunt legem, even to a question 
 of jurisdiction. (Bank of Utica v. City of Ulica, 4 Paige Rep. 400-1.) 
 
 Mr. Story, however, says, (Equity PI. c. 2, § 10, 4 ed. p. 9,) that 
 " consent cannot confer a jurisdiction not vested by law." This would 
 perhaps be more particularly applicable to courts, such as the supreme 
 judicial court of Massachusetts, whose equity powers have been dealt 
 out to the court from time to time by statute. Beyond the limits thus 
 prescribed, it may be that " every excess would amount to a usurpa- 
 tion which would make its decretal orders a nullity, or infest them
 
 OF THE COURT OF CHANCERY. 
 
 berality with which the courts of common law have 
 noticed and adopted principles of decision estab- 
 lish in courts of equity; a liberality generally con- 
 ducive to the great ends of justice, but which may 
 lead to great inconvenience, if the whole system of 
 the administration of justice, by courts of equity, 
 the extent of their powers and means of proceeding, 
 the subservience of their principles of decision to 
 the principles of the common law, the preference 
 which they have allowed to common-law rights 
 where in conscience the parties have stood on equal 
 grounds, and the defect in the powers of the court 
 of common law arising from their mode of proceed- 
 ing, should not be fully considered, in all their con- 
 sequences (a). 
 
 (a) See Lord Hardwicke's judgment in Wortley and Birkhead, 2 
 Ves. 573, 574. And see 6 Ves. 39. 
 
 with a ruinous infirmity." (lb.) But where courts of equity have 
 long existed, or are created with the usual general powers of such 
 courts, it might not be easy, in all cases, to define with exact precision 
 what jurisdiction the law has conferred; and it might readily be con- 
 ceived that consent to waive any ■ objection on that ground, might 
 sometimes be recognized on the principle of the maxim in the above 
 case. The court will not in first instance assume jurisdiction where it 
 is clear that it has none. Such, at least, is the doctrine of the present 
 day; notwithstanding the history of the English courts, whence our 
 own shows a long series of conflicts of jurisdiction, and reciprocal 
 " usurpations," until the concurrent and assistant jurisdiction of chan- 
 cery, and the equity of the law courts, have, through the aid of the 
 semi-legislation of the judiciary, very much confounded the original 
 boundaries of their respective jurisdictions ; and in New York, by re- 
 cent constitution and enactment, the jurisdictions are at last blended, 
 and an uniform mode of procedure established. But where such is 
 not the case, the court will not become the instrument of fraud, or 
 lend its aid so as to enable a party to defeat his own deliberate act, or 
 take advantage of his own wrong, who has expressly stipulated to 
 waive objection and submit his case where a question of jurifdiction 
 might have otherwise been raised, if interposed in due time and form. 
 
 2
 
 2 EXTRAORDINARY JURISDICTION 
 
 SSpaUaw.""" I" the construction of every system of laws, the 
 principles of natural justice have been first con- 
 sidered ; and the great objects of municipal laws 
 have been, to enforce the observance of those prin- 
 ciples, and to provide a positive rule where some 
 rule has been deemed necessary or expedient and 
 natural justice has prescribed none. It has also 
 been an object of municipal law to establish modes 
 of administering justice. 
 
 3 [3] The wisdom of legislators in framing positive 
 SJ'ction bi!^ Isms to answer all the purposes of justice has ever 
 law'^^requity, bccu fouud uucqual to the subject ; and therefore, 
 
 in all countries, those to whom the administration 
 of the laws has been entrusted, have been compel- 
 ied to have recourse to natural principles, to assist 
 them in the interpretation and application of posi- 
 tive law, and to supply its defects ; and this resort 
 to natural principles has been termed judging ac- 
 cording to equity. Hence a distinction has arisen 
 in jurisprudence between positive law and equity ; 
 but the administration of both has in most countries 
 been left, at least in their superior courts to the same 
 
 and of the dis- ., ,_ ...^ ^ ,. 
 
 cretion to vary tribuual. lu prcscribmo^. lorms oi proceedms in 
 
 or add forms. . / . 
 
 courts of justice human foresight has also been 
 defective ; and therefore it has been commonly sub- 
 mitted to the discretion of the courts themselves, to 
 vary or add to established forms, as occasion and the 
 appearance of new cases have required. 
 d^Id°anuge*°of ^^^ Euglaud 0. policy somewhat different has pre- 
 teecommo^iaw vailcd. Thc courts established for the ordinary ad- 
 ministration of justice, usually styled courts of com- 
 mon law, have, as in other countries, recourse to 
 principles of equity in the interpretation and appli-
 
 OF THE COURT OF CHANCERY. 3 
 
 cation of tlie positive law : but they are bound to 
 establish forms of proceeding ; are in some degree 
 hmited in the objects of their jurisdiction ; have 
 been embarrassed by a rigid adherence to rules of 
 decision, originally framed, and in general retained, 
 for wise purposes, yet, in their application, some- 
 times incompatible with the principles of natural 
 and universal justice, or not equal to the full appli- 
 cation of those principles ; and the modes of pro- [4] 
 ceeding in those courts, though admirably calculated 4 
 
 for the ordinary purposes of justice, are not in all 
 cases adapted to the full investigation and decision 
 of all the intricate and complicated subjects of liti- 
 gation, which are the result of increase of com- 
 merce, of riches, and of luxury, and the consequent 
 variety in the necessities, the ingenuity, and the 
 craft of mankind. Their simplicity, clearness and 
 precision, are highly advantageous in the ordinary 
 administration of justice ; and to alter them mate- 
 rially would probably produce infinite mischief: but 
 some change would have been unavoidable if the 
 courts of common law had been the only courts of 
 judicature. 
 
 Early therefore in the history of our jurispru- [|ono7Jh^ejuru! 
 
 deuce the administration of justice by the ordinary ^j.';t'°"°f*^o«i'w 
 
 ; juri*' 
 f equity, 
 
 courts appears to have been incomplete, and to sup- 
 ply the defect the courts of equity have exerted 
 their jurisdiction : assuming the power of enfor- 
 cing the principles upon which the ordinary courts 
 -also decide, when the powers of those courts, or 
 their modes of proceeding, are insufficient for the 
 purpose ; of preventing those principles, when en- 
 forced by the ordinary courts, from becoming (con-
 
 EXTRAORDINARY JURISDICTION 
 
 trary to the purpose of their original establishment)^ 
 instruments of injustice ; and of deciding on princi- 
 ples of universal justice, where the interference of 
 a court of judicature is necessary to prevent a 
 wrong, and the positive law, as in the case of trusts^ 
 [5] is silent (b). The courts of equity also adminis- 
 ter to the ends of justice, by removing impediments 
 to the fair decision of a question in other courts ; 
 by providing for the safety of property in dispute 
 pending a litigation; by preserving property in 
 danger of being dissipated or destroyed by those 
 to whose care it is by law intrusted, or by persons 
 having immediate but partial interests ; by restrain- 
 ing the assertion of doubtful rights in a maimer 
 productive of irreparable damage ; by preventing 
 injury to a third person from the doubtful title of 
 others ; and by putting a bound to vexatious and 
 oppressive litigation, and preventing unnecessary 
 multiplicity of suits : and, without pronouncing any 
 judgment on the subject, by compelling a disco- 
 very, or procuring evidence, which may enable other 
 courts to give their judgment ; and by preserving 
 testimony when in danger of being lost before the 
 matter to which it relates can be made the subject 
 of judicial investigation (c). 
 
 (6) Principlesof decision thus adop- 152. Pluraqiie quae usu fori compro- 
 
 ted by the courts of equity, when bata, denique juris script! auctorita- 
 
 fully established and made the tern propter vetustatein obtinueruut 
 
 grounds of successive decisions, are Cic. de invent, lib. 2, c. 22. Hienecc. 
 
 considered by those courts as rules de edict, preet. lib. 1, c. 6, p. 129. 
 to be observed with as much strict- (c) It is not a very easy task ac- 
 
 ness as positive law. See the judg- curately to describe the jurisdiction 
 
 ment of Sir Joseph Jekyll, quoted by of our courts of equity(l). This- 
 
 Sir Thomas Clarke, in Blackst. Rep. general description, though imper- 
 
 (1) As to the nature of equity jurisprudence and the extent of equity 
 jurisdiction, see Smitii's Manual of Equity, Introd, sect. J.
 
 OF THE COURT OF CHANCERY. 
 
 This establishment, as before obsen^ed, has ob- 
 tained throughout the system of our judicial polity; 
 most of the branches of that system having their g 
 
 peculiar courts of equity {d), and the court of chan- [6] 
 eery assuming a general jurisdiction, which extends 
 to cases not within the bounds or beyond the po- 
 wers of other jurisdictions (e). 
 
 The existence of this extraordinary jurisdiction, fet™^adm** 
 
 T . /» 1 -1 • 11 istration of equi- 
 
 entirely distmct from the ordinary courts, though ty. 
 frequently considered as an enormity requiring re- 
 dress, has perhaps produced a purity in the admi- 
 nistration' of justice which could not have been «. 
 effected by other means ; and it is in truth, in a causes of it. 
 
 feet, and in some respects inaccurate, 
 is offered only for the purpose of elu- 
 cidating the following treatise, in the 
 course of which the subject must be 
 in many points more fully considered. 
 
 {d) Thus the court of exchequer, 
 established for the particular purpose 
 of enforcing the payment of debts 
 due to the king, and incidentally ad- 
 ministering justice to the debtors and 
 accountants to the Crown, has its 
 ownpeculiar court of equity(l). The 
 courts of Wales, of the Counties 
 Palatine(2), of London, of the Cinque 
 Forts, and other particular jurisdic- 
 tions, have also their peculiar courts 
 of equity. 
 
 (e) The court of equity in the ex- 
 chequer chamber is also frequently 
 considered as a court of general ju- 
 risdiction, and in eSect it is so, in a 
 great degree, though in principle it 
 
 is not. For its jurisdiction is in strict- 
 ness confined to suits of the crown, 
 and of debtors and accountants to 
 the crown ; and a suggestion, the 
 truth of which the court will not per- 
 mit to be disputed, " that its suitor 
 " is a debtor and accountant to the 
 " crown," is still used to give it more 
 extensive jurisdiction. This practice, 
 as well as a similar fiction used to 
 give general jurisdiction to the com- 
 mon law court in the exchequer, and 
 the fiction used to give jurisdiction to 
 the court of king's bench in a variety 
 of civil suits of which it has not 
 strictly cognizance, may appear the 
 objects of censure ; but they have 
 probably had the effect of preventing 
 that abuse of power which is too of- 
 ten the consequence of the single ju- 
 risdiction of one supreme court. 
 
 (1) By the stat. 5 Vict. c. 5, s. 1, the equitable jurisdiction of "the 
 court of exchequer is transferred to the court of chancery. 
 
 (2) The courts of the county pilatine of Chester and the Princi- 
 pality of Wales have been abolished by Uie Btat. 11 Geo. IV. and 1, 
 Will. IV. c. 70, s. 14.
 
 7 EXTRAORDINARY JURISDICTION 
 
 great degree, a consequence of that jealous anxiety 
 with which the principles and forms established by 
 the common law have been preserved in the ordi- 
 [7] nary courts as the bulwarks of freedom, and of the 
 absolute necessity of preventing the strict adherence 
 to those principles and forms from becoming intol- 
 erable. 
 inent"oTa%uit A suit to thc oxtraordiuary juHsdictiou of the 
 court of chancery, on behalf of a subject merely, is 
 commenced by preferring a bill, in the nature of a 
 petition (/), to the lord chancellor, lord keeper, or 
 lords commissioners for the custody of the great 
 seal (g) ; or to the king himself in his court of 
 chancery, in case the person holding the seal is a 
 party (h), or the seal is in the kind's hands (i). 
 
 Commence- t> r< 
 
 ment of suit by But if the suit is instituted on behalf of the Crown 
 
 inionuation. 
 
 (k), or of those who partake of its prerogative (J), 
 or whose rights are under its particular protection, 
 as the objects of a public charity (m), the matter 
 of complaint is offered to the court by way of in- 
 ,§ formation, given by the proper officer and not by 
 
 [8] way of petition (n). Except in some instances (o), 
 
 (/) 9 Edw. IV. 41; Prac. Reg. p. R. 182; 2 Prax. Aim. Cur. Cane. 
 
 57, Wyatt's edit. This book, and 463 ; Ld. Chan. JefFeries against 
 
 other books of practice, are only cited Wilherly. 
 
 where no other authority occurred, (i) 1 West. Symb. Cha. 194, b. 
 
 or where they might lead the reader {k) 1 Roll. Ab. 373 ; Alt. Gen. v. 
 
 to further information on the subject. Vernon, 1 Vern. 277, 370. 
 
 The Practical Register is mentioned (/) As to idiots and lunatics, see 
 
 by Lord Hardwicke, 2 Alk. 22, as a chap. 1, sect. 1. 
 
 book, though not of authority, yet (m) I C. in Cha. 158 ; Anon. 3 
 
 better collected than jnost of the Atk. 276. See 1 Swanst. 292. 
 
 kind. (n) On the subject of informations, 
 
 (g) As to the authority of a lord see Chap. 1, sect. 3. 
 
 keeper, see 5 EHz. c. 18; and as to (o) There are some bills in early 
 
 that of lords commissioners, see 1 time in the French language. See 
 
 W. & M. c. 21. Calendars of Proceed, in Chan, prin- 
 
 (A) 4 Vin. Ab. 385 ; L. Leg. Jud. ted under authority of Commiss. on 
 
 JnCh. 44,255,258; Jud. Auth. M. Public Records, 1827.
 
 OF THE COURT OF CHANCERY. 8 
 
 bill* and informations have been always in the En- fn^Sio^n" °' 
 
 glish language ; and a suit preferred in this man- English bm* ^ 
 
 ner in the court of chancery has been therefore 
 
 commonly termed a suit by English bill, by way 
 
 of distinction from the proceedings in suits within 
 
 the ordinary jurisdiction of the court as a court of 
 
 common law, which, till the statute of the 4 Geo. 
 
 II. c. 26, were entered and enrolled, more anciently 
 
 in the French or Norman tongue, and afterwards 
 
 in the Latin, in the same manner as the pleadings 
 
 in the other courts of common law. 
 
 Every bill must have for its object one or more Objects for 
 
 J •• which bills are 
 
 of the grounds upon which the jurisdiction of the *^'^'^= 
 court is founded ; and as that jurisdiction some- 
 times extends to decide on the subject, and in some 
 cases is only ancillary to the decision of another 
 court, or a future suit, the bill may either complain '^°'^' 
 of some injury which the person exhibiting it suf- 
 
 •> •' * '^ discovery, 
 
 fers, and pray relief according to the injury ; or, 
 without praying relief, may seek a discovery of 
 matter necessary to support or defend another suit ; "'J^^'ti""- 
 (1) or, although no actual injury is suffered, it may [9] 9 
 complain of a threatened wrong, and stating a pro- 
 bable ground of possible injury, may pray the as- 
 sistance of the court to enable the plaintiff', or per- 
 son exhibilinor the bill, to defend himself against 
 the injury whenever it shall be attempted to be 
 committed. As the court of chancery ^as general 
 
 (1) It is not allowab'e in effect to unite in one bill, a bill for relief, |^^|} ^"f,.^®"**^ 
 and a bill for discovery on a matter which is quite distinct from that distinct from 
 relief, alt! oiigh both be connected witli the same circnmstances. So 
 that in a bill for a receiver, pendinjf a litigation as to probate, a plain- 
 tiff cannot have a discovery in reference to the merits on that litiga- 
 tion. Wood V. Hitchings, 3 Beav. 504.
 
 9 EXTRAORDINARY JURISDICTION 
 
 [9] jurisdiction in matters of equity not within^ the 
 bounds or beyond the powers of inferior jurisdictons 
 
 Writ of certio- (^p^^ \i assumcs a control over those jurisdictions, 
 by removing from them suits which they are incom- 
 petent to determine. To effect this, it requires the 
 party injured to institute a suit in the court of chan- 
 cery, the sole object of which is the removal of the 
 former suit by means of a writ called a writ of cer- 
 tiorari ; and the prayer of the bill used for this pur- 
 pose is confined to that object. 
 
 Answer on oath. 'pj^g j^^j]^ cxccpt it merely prays the writ of cer- 
 tiorari, generally requires the answer of the defen- 
 
 objects thereof, ^q^j^^^ qj. party complaiucd of, upon oath. An 
 
 answer is thus required, in the case of a bill seeking 
 the decree of the court on the subject of the com- 
 plaint, with a view to obtain an admission of the 
 case made by the bill, either in aid of proof, or to 
 supply the want of it ; a discovery of the points in 
 the plaintiff's case controverted by the defendant, 
 and of the grounds on which they are controverted ; 
 and a discovery of the case on which the defendant 
 relies, and of the manner in w^hich he means to 
 support it. If the bill seeks only the assistance of 
 the court to protect the plaintiff against a future 
 
 10 injury, the answer of the defendant upon oath may 
 be required to obtain an admission of the plaintiff's 
 title, and a discovery of the claims of the defendant 
 and of the grounds on which those claims are in- 
 tended to be supported. When the sole object of 
 
 [[10] a bill is a discovery of matter necessary to support 
 or defend another suit, the oath of the defendant,- 
 
 {p) The court of equity in the exchequer chamber, though a particular^ 
 IS not an inferior, jurisdiction.
 
 OF THE COURT OF CHANCERY. ' 10 
 
 IS re.qnired to compel that discovery. The plain- adbw" '^'•^o'^t 
 tiff may, if he thinks proper, dispense with this 
 ceremony, by consenting to or obtaining an order 
 of the court for the purpose ; and this is frequently 
 done for the convenience of parties where a dis- 
 covery on oath happens not to be necessary (1). 
 
 (1) In some of the States, as New-York and Massachusetts, pro- 
 visions by statute and rule of court exist authorizing a waiver of an- 
 swer on oath. 2 R. S. N. Y. 175, 5 44. 24 Pick. Rep. (Mass.) rule 
 411. The statute has introduced a new principle in pleading. But 
 the waiver must be of the whole bill. Complainant cannot, after an- 
 swer on oath, amend liis bill and introduce as one of his amendments 
 such waiver. Defendant having answered the original, cannot be de- 
 prived of the benefit under oath, of answering the amendments. In 
 such case the complainant, to obtain the benefit of a waiver, should 
 dismiss his bill and commence anew. Burras v. Looker, 4 Paige Rep. 
 227. No special order of court is heVe required, but the waiver is 
 stated in the bill, and then the answer, if under oath, has no more 
 •weight as evidence than the bill. The waiver may be safely resorted 
 to where complainant has ample testimony to sustain liis case, inde- 
 pendently of the effect of defendant's oath, unless by such a disclosure 
 of his case he defeats the equitable jurisdiction which he invokes. 
 Thus on a bill for discovery and relief, in Massachusetts, where an as- 
 signee of an insolvent filed the bill to set aside a mortgage given by 
 the insolvent debtor, as a preference and in contravention of the sta- 
 tute law in that state, and the bill waived all claim for discovery and 
 answer on oath, the plaintiff asking no aid of defendant by way of 
 discovery, but depending on proofs in his own power, it was held, that 
 liie same proofs that would support the bill would sustain a real ac- 
 tion ; and the plaintiff having a plain, adequate and complete remedy 
 at law, the court held that it had no jurisdiction and dismissed the bill. 
 Thayer v. Smith, 9 Metcalf Rep. 469. 
 
 But it is an important provision for a complainant, who has no con- 
 fidence in the veracity of a defendant, and has but one witness to es- 
 tablish his case. For it is a rule in equity, that a party is not to be 
 charged upon any fact stated in the bill against his own denial, in his 
 answer under oath, of the existence of such fact, if the proof of the 
 fact is only by one witness; upon the equitable principle that if he is 
 put on his oath by his adversary, credit shall be given to his own de- 
 claration, unless it is contradicted by at least two witnesses, or by 
 written documents. But then the answer must be direct, positive and 
 unequivocal. Farnam v. Brooks, 9 Pick. Rep. 249, and cases cited.
 
 10 EXTRAORDINARY JURISDICTION 
 
 And where the defendant is entitled to privilege of 
 
 The rule as laid down in Gould et al. v. Gould et al., 3. Story's Rep. 
 540. 516, is, that an answer responsive is positive evidence for defen- 
 dant, and to be taken as true, unless disproved by two credible wit- 
 nesses, or by one credible vi^itness, and facts entirely equivalent to, and 
 as corroborative as another witness. 
 
 The general rule, it seems, requires complainant to produce "not 
 only as much, but as much again evidence to establish his allegation, 
 as if he had not made a witness of the defendant." Per Tracy, sena- 
 tor, in the court of errors, New-York, on reversal upon appeal from 
 chancery, .in Jacksonet al. v. Hart, 11 Wend. Rep. 354. But in dalle's 
 Ex'rsv. Van Riemsdyk,9 Crsinch Rep. 153—164 ; 3 Cond.Rep. 350-1. 
 346. See also, 2 Cond. Rep. 293, n. Green v. Tanner, 8 Metcalf 
 Rep. 422. Where the weight of an answer on oath, or how far an- 
 swers are evidence, and what are the effects of an answer on the alle- 
 gations in the bill, and what countervailing testimony is required, had 
 been fully discussed, it was held, that an answer, though positive in 
 assertion, may be outweighed by circumstances, especially of a fact 
 which in the nature of things could not be personally known by de- 
 fendant. The general rule is admitted by the court, that two wit- 
 nesses or one with " probable circumstances," must be produced to 
 outweigh an answer asserting a fact responsive to tlie bill. The rea- 
 son on which the rule stands is — the plaintiff calls on defendant to 
 answer, admits it to be evidence. " If testimony, it is equal to that of 
 one witness; and as plaintiff cannot prevail if the balance of proof 
 be not in his favor, he must have circumstances in addition to his 
 single witness to turn the balance. But there may be evidence from 
 circumstances stronger than that of a single witness." The weight of 
 the answer must also from the nature of evidence, depend in some de- 
 gree on the fact stated. If defendant assert a fact which cannot be 
 within his own knowledge, the nature of the testimony cannot be 
 changed by the positiveness of his assertion. Ibid. 
 
 In Green v. Tanner, 8 Metcalf Rep. 422. 411, tiie answer was held 
 to be evidence for defendants, as to fads within their ownknowledge, and 
 to be taken as true, unless contradicted by two witnesses, or one 
 '• with probable and corroborative circumstances." So in Chance v, 
 Teeple, 3 Green Ch. Rep. 173, it was held that the principle, that two 
 witnesses are necessary to overcome answer on oath, (as laid down ia 
 Neville Y. Demeritl, 1 Id. 335. 321,) is not universally true. One with 
 corroborative circumstances is enough. 
 
 The answer ia entitled to the full weight of the testimony of one 
 credible and unimpeached witness, because the complainant by vol- 
 untarily appealing to the defendant's oath, makes him a competent wit- 
 ness for hio), the complainant, against himself the defendant, and by
 
 OF THE COURT OF CHANCERY. 10 
 
 peerage, or as a lord of parliament, or is a corpo- 
 ration aggregate, the answer, in the first case, is 
 
 calling him is precIudeJ from impeaching' his testimony. But it has 
 such weight, so far only as it is " re-ponsive to the call in the bill for 
 discovery, or connecieJ necessarily with the responsive matter, or ex- 
 planatory of it." So held in Methodist Church v. Wood, 5 Ohio 
 Rep. 176, 174 ; condens*" d from 5 Hammond; in which new matter 
 in answer to a bill of diicovery, not so responsive, could not be read 
 on trial, or used in evidence by the party. lb. 
 
 So to tlie like eff'Ct only is the answer to bills for relief; new mat- 
 ter or statement of facts not inquired of in the bill, or allegations not 
 responsive are not evidence of sui h facts, and will be disregarded by 
 the court unless proved by defendant. (See Neio Eng. Bxnkv, Lewis, 
 8 Pick. Rep. 113. Neville v. Demeritt, 1 Green Ch. Kep. 335. Dickey 
 V. AHen, Idem. 42, 43. 40. Brown v. Cutler, 8 Ohio Rep. 143.) 
 
 The answer must also be positive and unequivocal, (9 Pick. 249, 
 ante,) direct and specific, (19 Pick. Rep. 234, pos/,) and its denial in- 
 volve a fact whicli in its nature may be within defendant's knowledge, 
 (9 Cranch Kep. 153, et s^q. ante,) and in a matter necessary for his 
 defence, (11 VVeid. Rep. 354, ante.) 
 
 Although where the bill charged specific acts of fraud, the defendant, 
 to have the full benefit of his answer, so far as to require more than 
 one wi-tness to control it, it mu-t be direct and specific, as to the mat- 
 ter charged ; yet where the answer denies fraud generally, the charges 
 are not to be taken as true, and the defendant estopped to' disprove 
 them; but the phintiff should except to his answer for insufficiency. 
 Parkman v. Welch et al , 19 I'ick. Rep. 234. 231. 
 
 In Massachusetts where plaintiff may waive answer on oath, and 
 then it has no more force as evidence than the bill ; and where avail- 
 ing him>elf of that rule, she so framed her bill as to deprive the de- 
 fendant of the usual privilege of answering underoath, and the hearing 
 came upon the proofs, the court h Id that the burden rests entirely 
 upon the piaintifi"; and as she d''prived the defendant of some of the 
 means of defence usual in suits in chancery, it would seem but rea- 
 Bonnble that she should be required strictly to sustain it. Babcock v. 
 Smith et at., 22 Pick. Rep. 66. 61. In that case a new question, natu- 
 rally growing out of the practice under the above rule was made; 
 the depositions of two of the defend.mts were taken and offered in evi- 
 dence. They contended thnt, according to the principles and practice 
 in chancery, they were entitled to the benefit of their statements under 
 oath, and that if the plaintiff m.iy shut out their sworn answers, still 
 they should iiave the benefit of them in the form of testimony. But 
 whether tlje depositions of defendants may be adniitted in any case, 
 and if so under what circumstances they may be received, were ques-
 
 10 EXTRAORDINARY JURISDICTION 
 
 required upon the honor of the defendant {q), and 
 in the latter, under the common seal (r) (1). 
 
 (7) Ord. in Cha. Ed. Bea. 105, 479 ; and 8o it appears does a Mora- 
 
 261 ; 18 Ves. 470 ; 1 Ves. 470 ; 1 vian, see 22 Geo. II. c. 30. And ia- 
 
 Ves. & B. 187 ; 1 Jac. & W. 526. fidels are permitted to swear accord- 
 
 And see Robinson v. Lord Rokehy, \ng to the forms of the religion which 
 
 8 Ves. 601, as to Irish peers. they profess, provided such forms 
 
 (r) It may be observed, that al- constitute an appeal to the Supreme 
 
 though in ordinary cases the answer Being; see the well known cases of 
 
 is required upon oath, other sane- Omychund v. Barker, 1 Atk. 21 ; iS. 
 
 tions are in certain instances allowed C. 2 Eq. Ca. Abr. 397, and Ramkis- 
 
 in practice: a Quaker puts in his an- senseat v. Barker, 1 Atk. 51 ; a Jew 
 
 swer upon his solemn affirmation and makes oath upon the pentateuch, 
 
 declaration, see 7 W. & M. c. 34 ; 8 Robeley v. Langston, 2 Keble, 314 ; 
 
 Geo. I. 0. 6. Ord. in Cha. Ed. Bea. Anon. 1 Vern. 263 ; and a Mahome- 
 
 247; Wood v. Story, 1 P. Wms. tau upon the Koran, Stra. 1104. 
 781; Marsh v. Robinson, 2 Anstr. 
 
 tions which the court waived, not having had time to consider, and 
 not deeming the testimony offered essential to the decision. Ibid. 
 
 Although answer on oath be waived, yet defendant may put it in on 
 oath. As where he wishes to move to dissolve an injunction on bill 
 and answer denying the equity of the bill, the answer must be sworn 
 to. Dougrey v. Topping, 4 Paige Rep. 95. 94. And whether the bill 
 ' is sworn to by one or more complainants, the answer is entitled to the 
 same credit as the bill, and when it denies the whole equity, the in- 
 junction will be dissolved, unless the allegations in the bill be sus- 
 tained by the affidavit of a credible and disinterested witness, as re- 
 quired in New York by the 37 rule of the late court of chancery. 
 Manchester v. Day, 6 Paige Rep. 296, 295. 
 
 See further as to weight and effect of sworn answer as between 
 immediate parties or co-defendants, post, and next note (1). 
 
 (1) It is a principle of equity, that the plaintiff shall have a full 
 discovery of material facts under the sanction of an oath of the party 
 interested ; and as a corporation answer under seal, he may adopt the 
 course of an examination of a corporator as a party. This, as it ob- 
 viates any cross-examination, whereby he might do away with his an- 
 swer as a witness, is obviously much more beneficial than an exam- 
 ination of him as a witness. Therefore, on a bill for discovery and 
 relief, any members of a corporation, whether officers, or simply cor- 
 porators, and although it is not alleged that they have information more 
 than any other corporator, may, so far as relates to discovery, be made 
 party defendants and compelled to answer. Wright v. Dame et al, 1 
 Metcalf Rep. (Mass.) 237. 239. See as to proper form of prayer in 
 the bill against a corporation and its officers, 1 Edw. V. C. R. 47 n.
 
 OF THE COURT OF CHANCERY. 11 
 
 To the bill thus preferred, unless the sole object ^u^^or °neciJ- 
 of it is to remove a cause from an inferior court of '^^ 
 
 [It is a usual practice to make such of the individual members of a 
 corporation parties as are supposed to know any thintr of the matters 
 inquired after in tlie bill. This is allowed by statute and sanctioned- 
 by cases. 2 R. S. New-York, 464, ^ 43 ; lb. 465, ^ 52 ; Anonymous, 
 1 Vern. 117; Brumley v. Westchester Manuf. Co. 1 J. C. Rep. 366; 
 Fulton Bank v. Sharon Canal Co. 1 Paige's C. R. 218 ; Dummer v. 
 Cor-p. of Chippenham, 14 Ves. Jr. 245. Indeed, it has been said, a 
 •discovery cannot be compelled in a suit against a corporation, except 
 through the medium of their agents and officers, by making them par- 
 ties defendants. And where tlieir is an injunction, it would be desira- 
 ble that an officer or other person acquainted with the facts in the an- 
 swer should swear to it ; for the injunction cannot be dissolved upon 
 liie general answer of the corporation, where the seal alone is eworn 
 to, Fulton Bank v. Sharon Canal Co., supra.] 
 
 When the officers are made defendants, for the purpose of discovery 
 merely, no relief should be prayed against them. Mclntijre v. Trustees 
 of Union College and E. Nott, 6 Paige Rep. 242-3. 239. If the offi- 
 cers answering, are not the same who were in office at the time of 
 the transaction inquired about, they ought to go not only to the records, 
 books and'files for information, but to the former officers if living, and 
 ascertain, as near as may he the truth of the matters about which they< 
 are interrogated. Kiltredge v: The Clarcmont Bank et ah, 1 Wood- 
 bury & Minot Rep. 247. 244. 
 
 No decree can be founded on their answer, either as against them or 
 the corporation, but they may be eworn as witnesses. But the infor- 
 mation may be deemed of importance to the complainant in the pro- 
 gress of his cause, and he has a right to the discovery. The object 
 in making the agent a party, is for discovery to enable complainant to 
 understand his rights, and direct his inquiries by amendment of his 
 bill, or e.xamination of witness. The corporation, therefore, may an- 
 swer in tiie usual way, and the agent by separate answer. Vermilyea 
 V. Fulton Bank, 1 Paige Rep. 37, 33. Wright v. Dame et al., 1 Met- 
 calf, 237. 239, et seq. 
 
 In Haight v. The Proprietors of the Morris Aqueduct, 4 Wash. C. 
 C. Rep. 601, Judge Washington decided that the answer of a corpora- 
 tion under seal, was sufficient to prevent the granting, or if granted, 
 for the dissolution of injunction ; and intimated that it would avail the 
 corporation as evidence at hearing — same as if by individual on oath. 
 -The contrary was decided in The Fulton Bank v. The New- York and 
 Sharon Canal Co. 1 Paige Rep. 111. So in The Union Bank of 
 Georgetown v. Geary, 6 Peters' Rep. Ill, the court by Thompson, J., 
 
 2
 
 11 EXTRAORDINARY JURISDICTION 
 
 equity, it is necessary for the person complained 
 of eitlier to make defence, or to disclaim all right 
 to the matters in question by the bill(l). As the 
 
 says : " Although the reason of the rule which requires two witnesses 
 or circumstances to corroborate the testimony of one, to outweigh the 
 answer, may be founded in a great measure upon the consideration 
 that the complainant makes the answer evidence, by calling for it, yet 
 this is in reference to the ordinary practice of the court requiring the 
 answer on oath. But the weight of such answer is very much les- 
 sened, if not actually destroyed, as a matter of evidence, when unac- 
 companied by an oath. And indeed, we are inclined to adopt it as a 
 general rule, that an answer not under oath, is to be considered merely 
 as a denial of the allegations in the bill, analogous to the general issue 
 at law, so as to put complainant to the proof of such allegations." In 
 the more recent case of Lovetl v. The Steam Saw Mill Assoc. 6 Paige 
 Rep. 59. 54, the chancellor, after quoting the above cases, and the opin- 
 ion of the United States Court by JusticeThompson,says : " This is un- 
 doubtedly the correct view of the matter. The answer of a corpora- 
 tion without oath, where complainant does not require it to be sworn 
 to, or supported by the sworn answers of the officers of the corpora- 
 tion, cannot be said to answer the double purpose of a pleading to put 
 the material matters of the bill in issue, and of an examination of the 
 defendant for the purpose of obtaining his evidence in support of the 
 complainant's allegations : and it is for the latter purpose alone, that 
 the complainant makes a witness of his adversary in the cause." 
 of'thebiitunTer (1) ^y ^^^ ^Sd order of August, 1841, " where no account, pay- 
 the 23d order of ment, Conveyance, or other direct relief is sought against a party to a 
 suit, it shall not be necessary for the plaintiff to require such party, 
 not being an infant, to appear to and answer the bill. But the plain- 
 tiff shall be at liberty to serve such party, not being an infant, with a 
 copy of the bill, whether the same be an original, or amended, or sup- 
 plemental bill, omitting the interrogating part thereof; and such bill, 
 as against such party, shall not pray a subpoena to appear and answer, 
 ■ but shall pray that such party, upon being served with a copy of the 
 bill, may be bound by all the proceedings in the cause. But this order 
 is not to prevent the plaintiff from requiring a party against whom no 
 account, payment, conveyance, or other direct relief is sought, to ap- 
 pear to and answer the bill, or from prosecuting the suit against such 
 party in the ordinary way, if he shall think fit." And by the 29th 
 order " where no account, payment, conveyance or other relief is 
 sought against a party, but the plaintiff shall require such party to ap- 
 pear to and answer the bill, the costs occasioned by the plaintiff having 
 required such party so to appear and answer the bill, and the costs of ,
 
 OF THE COURT OF CHANCERY. 11 
 
 bill calls upon the defendant to answer the several [11] 
 charges contained in it, he must do so, unless he ^TvTeK*'*"' 
 can dispute the right of the plaintiff' to compel such 
 'an answer, either from some impropriety in requir- 
 ing the discovery sought by the bill, or from some 
 objection to the proceeding,to which the discovery 
 is proposed to be assistant ; or unless by disclaim- 
 ing all right to the matters in question by the bill 
 he shows a further answer from him to be unne- 
 cessary (s). 
 
 A defendant to a bill may have an interest to Formal answe«. 
 support the plaintiflf's case^ or his interest may not 
 be adverse to that claim ; he may be a mere trus- 
 tee, or brought before the court in some character 
 necessary to substantiate the suit, that there may 
 
 (s) In some cases a defendant may tion. See Cha^. II. sect. 2, part 1, 
 be compelled to answer, though he p. 105. 
 has no interest in the matters in ques- 
 
 all proceedings consequential thereon, shall be paid by the plaintiff", 
 unless the court shall otherwise direct." 
 
 According to the decision in Lloyd v. Lloyd, in a creditor's suit for 
 administering the estate of a testator who has devised his real estate, 
 subject to a power of sale for the payment of such part of his debts as 
 his personal estate might be insufficient to pay, the devisees may be 
 served with a copy of the bill under the 23d order. 1 Y. & C. Ch. 
 C. 181. 
 
 But according to the decision in Barkley v. Lord Reay, where a suit 
 is instituted for the raising of a legacy by a sale or mortgage of en- 
 tailed real estate against the trustees thereof, who have the legal fee 
 and full power to sell or mortgage and give receipts, it is not sufficient 
 to serve the equitable tenant in tail with a copy of the bill. 2 Hare, 306. 
 
 The 23d order does not apply to the Attorney General. Christopher 
 V. Cleghorn, 8 Beav. 314. As to other persons not within this order, 
 see JMarke v. Turner, 7 Jur. 1102. 
 
 The prayer that a party who is not required to appear and answer 
 may be bound by all the proceedings in tiie cause, ought to be inserted 
 in that part of the bill in which process is prayed against the other de- 
 fendants. Gibson V. Ilaynes, 6 Jur, 203, L. C.
 
 11 EXTRAORDINARY JURISDICTION 
 
 12 
 
 [12] 
 
 be proper parties to it(l). In such cases, his an- 
 swer may often be mere matter of form (2), sub- 
 mitting the subject of the suit to the judgment of 
 the court ; and, if any act should be required to be * 
 done by him, desiring only to be indemnified by 
 the decree of the court. 
 Grounds of de- The ofrounds on which defence may be rnade 
 
 fence. ~ •' 
 
 to a bill either by answer, or by disputing the right 
 of the plaintiff to compel the answer which the 
 bill requires, are various. The subject of the suit 
 may not be within the jurisdiction of a court of 
 equity : or some other court of equity may have 
 the proper jurisdiction : the plaintiff may not be 
 entitled to sue by reason of some personal disa- 
 bility: if he has no such disability he may not be 
 the person he pretends to be : he may have no in- 
 terest in the subject : or if he has an interest, he 
 may have no right to call upon the defendant con- 
 cerning it : the defendant may not be the person he 
 is alleged to be by the bill : or he may not have 
 that interest in the subject which can make him 
 liable to the claims of the plaintiff: and finally, if 
 the matter is such as a court of equity ought to in- 
 terfere in, and no other court of equity has the pro- 
 per jurisdiction, if the plaintift' is under no per- 
 sonal disability, if he is the person he pretends to 
 he, and has a claim of interest in the subject, and 
 a right to call upon the defendant concerning it : if . 
 the defendant is the person he is alleged to be, 
 and also claims an interest in the subject which 
 may make him liable to the demands of the plain- 
 
 (1) [Bailey v. Inglee, 2 Paige Rep. 278.] 
 
 (2) See an/e p. 11, n. (1).
 
 OF THE COURT OF CHANCERY. 
 
 13 
 
 tiff, still the plaintiff may not be entitled, in the 
 whole or in part, to the relief or assistance he 
 prays : or if he is so entitled, the defendant may 
 also have rights in the subject which may require 
 the attention of the court, and call for its inter- 
 ference to adjust the rights of all parties ; the ef- 
 fecting complete justice, and finally determining, 
 as far as possible, all questions concerning the 
 subject, being the constant aim of courts of equity. 
 Some of these grounds may extend only to entitle 
 the defendant to dispute the plaintiff's claim to the 
 relief prayed by the bill, and may not be sufficient 
 to protect him from making the discovery sought ^^ 
 
 by it ; and where there is no ground for disputing 
 the right of the plaintiff to the relief prayed, or if 
 no relief is prayed, yet if there is any impropriety 
 in requiring the discoveiy sought by the bill, or if the 
 discovery can answer no purpose, the impropriety ^ 
 
 or immaterial it}'' of the discovery may protect the 
 defendant from making it. 
 
 The defence which may be made on these seve- ^,f oTmatteMt 
 ral grounds may be founded on matter apparent on a'^defeit the °e°n^ 
 the bill, or on a defect either in its frame or in the 
 case made by it; and may on the foundation of the 
 bill itself demand the judgment of the court whether 
 the defendant shall be compelled to make any an- 
 swer to the bill, and consequently whether the suit 
 shall proceed ; or it mav be founded on matter not eawhofiyoTlfBr' 
 
 , 1 ... , " 1 • 1 1 . 1 tially on ninttcr 
 
 apparent on the bill, but stated m the detence, and "'V.-l','' '^'^^ 
 
 * *■ ' 'of the bjU. 
 
 may on the matter so offered demand the judgment 
 of the court, whether the defendant shall be com- 
 pelled to make any other answer to the bill, and 
 consequently whether the suit shall proceed, except 
 to try the truth of the matter so offered ; or it may
 
 14 
 
 EXTRAORDINARY JURISDICTION 
 
 15 
 
 Plea, 
 
 [14] 
 
 be founded on matter in the bill, or on further mat- 
 ter offered, or on both, and submit to the judgment 
 of the court on the whole case made on both sides ; 
 and it may be more complex, and apply several 
 defences differently founded to distinct parts of the 
 bill. 
 
 The form of making defence varies according to 
 the foundation on vv^hich it is made, and the extent 
 in which* it submits to the judgment of the court. 
 If it rests on the bill, and On the foundation of mat- 
 ter there apparent demands the judgment of the 
 court whether the suit shall proceed at all, it is 
 termed a demurrer ; if on the foundation of new 
 matter offered, it demands the judgment of the 
 court whether the defendant shall be compelled to 
 answer further, it assumes a different form, and is 
 termed a plea; if it submits to answer generally 
 the charges in the bill, demanding the judgment 
 of the court on the whole case made on both sides, 
 it is offered in a shape still different, and is simply 
 called an answer. If the defendant disclaims all 
 'interest in the matters in question by the bill, his 
 answer to the complaint made is again varied in 
 Several forms of foriTi, aud is tcrmcd a disclaimer. And all these 
 
 defence to seve- 
 ral^ parts of the several forms of defence, and disclaimer, or any of 
 
 them, may be used together, if applying to separate 
 and distinct parts of the bill. 
 
 A demurrer, being founded on the bill itself, ne- 
 cessarily admits the truth of the facts contained in 
 the bill, or in the part of the bill to which it extends; 
 and therefore, as no fact can be in question between 
 the parties, the court may immediately proceed to 
 pronounce its definitive judgment on the demurrer, 
 which if favourable to the defendant, puts an end to 
 
 Answer. 
 
 Disclaimer. 
 
 Proceedings on 
 a denhirrer.
 
 OF THE COURT OF CHANCERY. 15 
 
 SO much of the suit as the demnrrer extends to. A 
 demurrer (1), if allowed, consequently prevents any p^^^^^^^^^^ ^ 
 further proceeding (t). A plea is also intended to p'^^ 
 prevent further proceeding at large, by resting on 16 
 
 some point founded on matter stated in the plea; 
 and as it rests on that point merely, it admits, for the 
 pui-poses of the plea, the truth of the facts contained [15] 
 in the bill, so far as they are not controverted by 
 facts stated in the plea. Upon the sufficiency of 
 this defence the court will also give immediate 
 judgment, supposing the facts stated in it to be true; 
 but the judgment, if favourable to the defendant, is 
 not definitive ; for the truth of the plea may be 
 denied by the plaintiff by a replication, and the par- 
 ties may then proceed to examine witnesses, the 
 one to prove and the other to disprove the facts 
 stated in the plea. The replication in this case 
 concludes the pleadings (u) ; though if the truth of 
 the plea shall not be supported, further proceedings 
 may be had, which will be noticed in a subsequent 
 page (x). An answer generally controverts the an°^^8w?r^* °° 
 facts stated in the bill, or some of them, and states 
 other facts to show the riofhts of the defendant in 
 
 (t) An amendment of a bill lias moved by amendment, to make a 
 
 been permitted by a court of equity special order, adapted to the circum- 
 
 after a demurrer to the whqle bill bad stances of the case. See Chap. H. 
 
 been allowed ; but this seems not to sect. 2, part 1. [p. 106]. 
 
 have been strictly regular ; 2 P. Wms. (u) See Chap. HI. [p. 321]. 
 
 300 (2) ; and it seems most proper, if (x) See Chap. II. sect. 2, part 2. 
 
 the ground of demurrer may be re- (p. 218]. 
 
 (1) That is, a demurrer to the whole bill. If a partial demurrer is 
 ;allowed, the bill is still in court. And on allowing a demurrer for 
 want of parties, the court generally gives leave to amend the bill. See 
 A Headlam's Daniell's Ch. Pr. 552—555. 
 
 (2) [See note to tJiis case in Cox's edition of P. Wms.]
 
 16 EXTRAORDINARY JURISDICTION 
 
 the subject of the suit; but sometimes it admits 
 th§ truth of the case made by the bill, and, either 
 with or without stating additional facts, submits the 
 question arising upon the case thus made to the 
 judgment of the court. If an answer admits the 
 facts stated in the bill, or such as are material to 
 the plaintiff's case, and states no new facts, or 
 such only as the plaintiff is willing to admit, no fur- 
 
 17 ther pleading is necessary ; the answer is considered 
 as true, and the court will decide upon it. But if 
 the answer does not admit all the facts in the bill 
 material to the plaintiff's case, or states any fact 
 which the plaintiff is not disposed to admit, the truth 
 of the answer, or of any part of it, may be denied , and 
 
 [16] the sufficiency of the bill to ground the plaintiff's 
 title to the relief he prays may be asserted, by a 
 replication, which in this case also concludes the 
 pleadings according to the present (t/) practice 
 New defence, of the couit. If a dcmurrcr or plea is overruled 
 upon argument the defendant must make a new 
 defence (1). This he cannot do by a second 
 demurrer of the same extent after one demurrer 
 has been overruled ; for altliough by a standing 
 order of the court a cause of demurrer must be 
 set forth in the pleading, yet if that is overruled any 
 other cause appearing on the bill may be offered on 
 argument of the demurrer, and, if valid, will be al- 
 lowed ; the rule of the court affecting only the costs. 
 But after a demuiTcr has been overruled a new de- 
 fence may be made by a demurrer less extended, 
 
 (y) See Chap. III. [p. 321.] • 
 
 (1) [See Goodrich V. Pendleton, 4 Johns. Ch. Rep. 651 ; Murray, v. 
 Coster, 4 Cow. Rep. 617 ; Townsendv. Toicnsend, 2 Paige Rep. 413.].
 
 OF THE COURT OF CHANCERY. 17 
 
 or by plea, or answer ; and after a plea has been 
 overuled, defence may be made by demurrer, by a 
 new plea, or by an answer : and the proceedings 
 upon the new defence will be the same as if it had 
 been orifrinally made (z). A disclaimer, neither Proceedings in 
 
 ~ •' ^ ■' . _ the case of a dis- 
 
 assertirtg any fact, or denying any right sought by '^laimer. 
 the bill, admits of no further pleading (a). If the rSSor. 
 sole object of a -suit is to obtain a discovery, there ribui.'""''^"""' 
 can be no proceeding beyond an answer by which ■'-" 
 
 the discovery is obtained. A suit which only seeks 
 to remove a cause from an inferior court of equity 
 does not require any defence, and consequently 
 there can be no pleading beyond the bill. 
 
 Suits thus instituted are sometimes imperfect in [17] 
 their frame, or become so by accident before their 
 end has been obtained ; and the interests in the pro- 
 perty in litigation maybe changed pending the suit puitsthatarenot 
 in various ways. To supply the defects arising °^'^""^"^^'- 
 from any such circumstances, new suits may be- 
 come necessary, to add to, or continue, or obtain 
 the benefit of, the original suit. A litigation com- 
 menced by one party sometimes renders a litigation 
 by another party necessary, to operate as a defence, 
 or to obtain a full decision on the rights of all par- 
 ties. Where the court has given judgment on a 
 suit, it will in some cases permit that judgment to 
 be controverted, suspended, or avoided by a second 
 suit ; and sometimes a second suit becomes neces- 
 sary to carry into execution a judgment of the court. 
 Suits instituted tor any of these purposes are also 
 commenced by bill ; and hence arises a variety of 
 
 (z) See Cliap. II. sect. 2, part 1. (a) See Chap. II. sect. 2, part 3. 
 [106]. [306].
 
 [18] 
 
 18 EXTRAORDINARY JURISDICTION 
 
 distinctions of the kinds of bills necessary to an- 
 swer the several purposes of instituting an original 
 suit, of adding to, continuing, or obtaining, the be- 
 nefit of a suit thus instituted, of instituting a cross- 
 suit, and of impugning the judgment of the court 
 on a suit brought to a decision, or of carrying a 
 judgment into execution ; and on all the different 
 kinds of bills there may be the same pleadings, as 
 on a bill used for instituting an original suit. 
 X9 It frequently happens that, pending a suit, the 
 
 pi?adiS^°* °^ parties discover some error or defect in some of the 
 pleadings ; and if this can be rectified by amend- 
 ment of the pleading, the court will in many cases 
 permit it. This indulgence is most extensive in 
 the case of bills ; which being often framed upon 
 an inaourate state of the case, it was formerly the 
 practice to supply their deficiences, and avoid the 
 consequences of errors, by special replications. 
 But this tending to long and intricate pleading, the 
 special replication requiring a rejoinder, in which 
 the defendant might in like manner supply defects 
 in his answer, and to which the plaintiff might sur- 
 rejoin, the special replication is now disused for 
 this purpose, and the court will, in general, permit 
 a plaintiff to rectify any error, or supply any defect 
 in his bill, either by amendment, or by a supple- 
 mental bill ; and will also permit in some cases, 
 a defendant to rectify an error or supply a defect 
 in his answer, either by amendment, or by a further 
 answer. (1) 
 
 (1) Dupote V. Massey, Coxe's Dig. 147. The reason why the prac- 
 tice of special replications, and the accumulation of specialties upon
 
 20 
 
 OF THE COURT OF CHANCERY. 19 
 
 Summary jurisdiction has been given by autho- diS^JL^peti; 
 rity of parliament to courts of equity in certain 
 €ases arising incidentally from the provisions of acts 
 of parliament, both public and private, without re- 
 quiring the ordinary proceeding by bill or informa- 
 tion and substituting a simple petition to the court; 
 the assistance of the .court being required only to 
 provide for the due execution of the provisions of 
 such acts. 
 
 But by an act of the 52 of Geo. III. c. 101, a m the caso ot 
 
 .... . . charities. 
 
 summary jurisdiction, on petition only, has been 
 ffiven in the case of abuses of trusts created for 
 charitable purposes, which were the subjects of in- 
 formation by the king's attorney-general, to which [19] 
 the persons of whom complaint was made might 
 make defence, according to the nature of the case 
 stated in the information, by demurrer, plea or an- 
 swer, -so that the court might have before it the 
 whole case on which its judgment might be required, 
 and to which evidence to be produced in support of 
 or in answier to the complaint made might be pro- 
 perly applied. 
 
 them, is not allowed in equity, may be this : the great object of special 
 pleading at common law is to keep the law and fact distinct, they 
 being to be tried by separate tribunals ; but, in equity, the whole ques- 
 tion comes before the court for its decision both on the pleadings and 
 the proofs. Lube, 371. 
 
 Special replications, however, may be filed by leave of court on 
 cause shown, but not otherwise : by the practice of some of the 
 States, as in New York and Massachusetts, (24 Pick. 413, Rule 14.) 
 In the United States courts, the act regulating processes therein, hav- 
 ing in reference to proceedings in equity, been generally understood 
 to adopt the principles, rules and usages of the court of ciiancery of 
 England, arite, p. 1, n. (1), complainants cannot make a new case by 
 their replication, but should amend their bill. {Valtier v. Hinde,! 
 Peters, 274.)
 
 20 EXTRAORDINARY JURISDICTION, &C. 
 
 The loose mode of proceeding authorized by this 
 act was probably intended to save expense in in- 
 vestigating abuses of charities : but in practice it 
 unavoidably led to great inconvenience ; the court 
 not having before it any distinct record to which its 
 judgment might be properly applied, and especially 
 with respect to those against whom complaint 
 might be made, or those against whom no such 
 complaint could be made, but whose interests might 
 be effected by the judgment of the court. This 
 inconvenience became apparent in a case which 
 was made the subject of appeal to the House 
 of Lords, who filially determined, that a jurisdic- 
 tion, so summary, and in which the proceedings 
 were so loose, ought, in just construction of the act, 
 to be confined to the simple case of abuse of a clear 
 trust, not involving any question beyond the ques- 
 tion of such abuse, and particularly not involving 
 
 ^^ the interests of persons to whom such abuse of trust 
 
 Order in which could iiot be iuiputed (h) (1). 
 
 pleadings are — . . . , ^ , , , 
 
 considered. In au mquuy mto the nature ot the several plea- 
 
 dings thus used, it seems most convenient to con- 
 r2Q-| sider them in the order in which they, have their 
 effect, and consequently to treat, 1, of bills ; 2, of 
 the defence to bills, and therein of demurrers, pleas, 
 answers and disclaimers ; 3, of replications ; and 4^ 
 to notice matters incidental to pleadings in general, 
 and particularly the cases in w^iich amendments of 
 inaccurate or erroneous pleadings are permitted. 
 
 (6) Corp. o( Ladlow V. Greenhouse, D. Proc. Feb. 1827. 
 (1) On this subject, see 2 Headlam's Daniell's Ch. Pr. 1113, et seq.
 
 22 
 
 CHAPTER THE FIRST. [2i] 
 
 OF BILLS. 
 
 Section I. 
 
 Sy whom, and against ichom, a Bill may he ex- 
 hibited. 
 
 In treatino^ of bills, it will be proper to consider, order in whkh 
 
 ^ ^ , ^ _ bills are treated 
 
 I. The several persons who are capable of exhi- °^- 
 biting a bill, by themselves, or under the protection, 
 or in the name of others ; and against whom a bill 
 may be exhibited : II. The several kinds and dis- 
 tmctions of bills: and III. The frame and end of 
 the several kinds of bills. An information ditfer- 
 ing from a bill in a little more than in name and 
 form, its nature will be principally considered under 
 the general head of bills, and its peculiarities will 
 be afterwards noticed. 
 
 It has been already observed that suits on behalf |;;|;°™'„*^°^ ^^ 
 of the crown and of those who partake of its prero- rai! 
 gative or claim its peculiar protection, are insti- 
 tuted by officers to whom that duty is attributed («). 
 These are, in the case of the crown, and of those 
 whose rights are objects of its particular attention, 
 
 (a) See above, p. 7. 
 
 solicitor-cene-
 
 23 BY WHOM A BILL [ChaP. I. 
 
 [22] the king's attorney (h) or solicitor-general (c); smd 
 as these officers act merely officially, the bill they 
 exhibit is by way, not of petition or complaint, but 
 of information to the court of the eights which the 
 crown claims on behalf of itself or others, and of 
 the invasion or detention of those rights for which the 
 at the relation of gyit is institutcd. If tlic suit docs not immediately 
 
 another person. •' 
 
 concern the rights of the crown, its officers depend 
 on the relation of some person, whose name is in- 
 serted in the information, and who is termed the 
 relator ; and as the suit is carried on under his di- 
 rection, he is considered as answerable to the court 
 and to the parties for the propriety of the suit and 
 Information and the couduct of it (cl). It somctimcs happens that 
 this person has an interest in the matter in dispute, 
 
 24 [23] of the injury to which interest he has a right to 
 
 complain. In this case his personal complaint be- 
 ing joined to, and incorporated with, the informa- 
 
 (6) See 1 Swanst. 290, 291, 294, chamber, in the British Museum, 
 
 and Rex v. Austen, 8 Pri. Exch. R. Harl. MSS. vol. i. No. 1226, menti- 
 
 142. And the crown may be repre- oned in 4 Bl. Com. 267. 
 
 seBted as plaintifF by the attorney- (J) 1 Russ. R. 236. It appears, as 
 
 general, and as defendant by the so- intimated in the text, that it is not ab- 
 
 licitor-general, in the same suit, where solutely necessary, even in the In^ 
 
 there are conflicting claims between stances the^e alluded to, that a relator 
 
 the king and persons partaking of his should be named, 2 Swanst. 520 ; 4 
 
 prerogative, or under his peculiar pro- Dow. P. C. 8, although the practice 
 
 tectioa. See Ait. Gen. v. Mayor of of naming one seems to have beeu 
 
 Bristol, 3 Madd. 319; S. C. 2 Jac. universally adopted, 1 Ves. J. 247; 4 
 
 & W. 294; Att. Gen. v. Vivian, 1 Dow. P. C. 8 ; 1 Sm. & Stu. 396, 
 
 Russ. R. 226. But it may be remarked that the le' 
 
 (c) See, as- to the solicitor-general, gislature, in certain special cases in 
 
 Wilkes's Case, 4 Burr. 2527 ; Sol. which the right may be doubtful, has 
 
 Gen. V. Z>or?/, 6 May, 1735, anil iSoZ. empowered the attorney-general to 
 
 Gen. V. Warden and Fellowship of institute a suit, by information, with- 
 
 iSutton Coldfield, Mich. 1763, in out requiring that a relator should be 
 
 Chancery. This subject is partlcu- "named. See 59 Geo. HI. c. 91, and 
 
 larly considered in part iii. sect. 4, of see 1 Sim. &- Stu. 396. 
 a manuscript treatise on the Star-
 
 S. I.] 
 
 MAY BE EXHIBITED. 
 
 24 
 
 thout a rel^ 
 tor. 
 
 tion given to the court by the officer of the crown, 
 they form together an information and bill, and are J^fo""«t*o°" 
 so termed (e) (1). But if the suit immediately 
 concerns thfe rights of the crown, the information is 
 generally exhibited without a relator (/) ; and 
 where a relator has been named, it has been done 
 through the tenderness of the officers of the crown 
 towards the defendant, that the court might award 
 costs against the relator, if the suit should appear 
 to have been improperly instituted, or in any stage 
 of it improperly conducted {g). The queen-con- 
 sort, partaking of the prerogative of the crown, 
 may also inform by her attorney (k). 
 
 Suits on behalf of bodies pohtic and corporate, 
 
 [24] 25 
 
 (e) See as iiiBtances, Alt. Gen. v. 
 Oglender, 1 Ve^. J. 247 : Att. Gen. v. 
 Brown, 1 Swanst. 265 ; Alt. Gen. v. 
 Master and Fell, of Caih. Hall, 1 
 Jac. R. 381 ; Att. Gev. y. Heelis, 2 
 Sim. & Stu. 67, and Att. Gen. v. 
 Vivian, 1 Russ. R. 226. If the rela- 
 tor should not be entitled to the equi- 
 table relief which he seeks for himself, 
 the suit may nevertheless be supported 
 on behalf of the crown, 1 Swanst. 305; 
 and upon an information and bill, the 
 bill alone may be dismissed, see Att. 
 Gen. V. Vivian, 1 Russ. R. 226. And 
 see Att. Gen. v. Moses, 2 Madd. 294, 
 a case of information and bill, in which 
 the king having had no interest, the 
 attorney-general was an unnecessary 
 party. 
 
 (/) Att. Gen. v. Vernon, 1 Vern. 
 
 277, 370 ; Att. Gen. v. Crofts, 4 Bro- 
 P. C. 136, Tomi. Ed. 
 
 (g) The propriety of naming a re- 
 lator for this purpose, and the oppres- 
 ion ari.sing from a contrary practice 
 were particularly n<^iced by Baron 
 Perrot, in a cause ifflhe exchequer. 
 Att. Gen. v. For. In that cause no 
 relator was named : and though the 
 defendants finally prevailed, they 
 were put to an -expense almost 5qual 
 to the value of the property in dispute. 
 See 2 Swaust. 530; 1 Sim. &, Stu. 
 397 ; 1 Russ. R. 236. If the relator 
 should die, this court would appoint 
 another. Att. Gen. v. Powel, Dick. 
 355. 
 
 (A) 10 Edw. III. 179; Collins, 131; 
 2 RgI. Ab. 213. 
 
 (1) An iiiformalion and bill is improper, where tlie persons named information and 
 
 as plaintiffs as well as relators have no individual Interest; as where ^j". ^I?'^'"? '^^ 
 
 . - 1 1 .11 • r.1 T I *• plnintins have 
 
 an intormation and bill is filed by three of the court of assistants of a "o individual in- 
 
 coinpany in respect of a chanty, and by two of the obj 'cts of the ^"^^^ ' 
 
 charity. Allorney Gen. v. East India Company, 1 1 Sim. 380.
 
 25 
 
 BY WHOM A BILL 
 
 [Chap. I. 
 
 TunTTh'em"" ^"^ of pcrsons who do not partake of the preroga- 
 aeivea alone. ^|^^ ofthc crowii, aiid havc HO claini to its particular 
 protection, are instituted by themselves, either alone 
 or under the protection of others (1). Bodies po- 
 litic £uid corporate («), and all persons of full age, 
 not being feme-covert, idiot or lunatic, may by them- 
 selves alone exhibit a bill. A feme-covert, if her 
 husband is banished (k) or has abjured the realm (Z), 
 may do so likewise ; for she then may act in all 
 respects as a feme-sole (m). Those, therefore, 
 who are incapable of exhibiting a bill by themselves 
 alone, are, 1, infants ; 2, married women, except 
 the wife of an exile, or of one who has abjured the 
 realm; 3, idiots and lunatics (??) (2). 
 
 Persons who 
 cnnnot sue Ijjr 
 themselves 
 alone. 
 
 (7) 3 Swanst. 138. As examples 
 of suits by such bodies, see the Cha- 
 ritable Corporation V. Sutton, 2 Atk. 
 406 ; Universities of Oxford and 
 Cambridge v. Riehardson, 6 Ves. 
 689; Mayor, ^-Ci of London v. Levy, 
 8 Ves. 398 ; City of London v. Mit- 
 ford, 14 Ves. 41 ; Bank of England 
 V. Lunn, 15 Ves. 569 ; Mayor of Col- 
 chester V. Laiotoit, 1 Ves: & B. 226 ; 
 Dean and Chapter of Christ church 
 V. Simonds, 2 Meriv. 467; East 
 India Comp. v. Keighley, 4 Madd. 
 10; Vauxhall Bridge Company v. 
 Earl Spencer, 1 Jac. R. 64; Presi- 
 dent, cj-c, of Magdalen College v. 
 Sibthorp, 1 Russ. R. 154. 
 
 (A) 1 Hen. IV. 1 ; Sybell Belknap's 
 
 case, 2 Hen. IV. 7, a ; 11 Hen. IV- 
 
 1, a. b. 
 
 (l) Thomas of Weyland's case, 19 
 Edw. I. ; 1 Inst. 133, a. 
 
 (?«) See Newsome v. Bowyer, 3 P- 
 Wnis. 37. 
 
 («) It may seem, tliat the disabi- 
 lities arising from outlawry, excom- 
 munication, conviction of popish re- 
 cusancy, attainder, and alienage, and 
 those which formerly arose from vil- 
 lenage and profession, ought to bo 
 here noticed. Such of them as sub- 
 sist do not, and the others did not, 
 absolutely disable the person suffering 
 under them from exhibiting a bill- 
 Outlawry, excommunication (3) and 
 conviction of popish recusancy (4) 
 
 (1) A corporation can only sue in the name and style given to it. 
 Porter v. Nediervis, 4 Randolph's (Virginia) Rep. 359. As to suits 
 by foreign state, see [31] n. 2, post. 
 
 (2) See p. [30,] n. (1). 
 
 (3) This disability is removed by the statute 53 Geo. III. c. 127, s 3. 
 
 (4) This disability is removed by the statute 31 Geo. III. c. 32,
 
 S. I.] MAY BE EXHIBITED. 26 
 
 1. An infant is incapable hy himself of exhibi- [25] 
 
 ,.,, I, . ^•\ • 1 i.1- Infants who 
 
 tinff a bill, as well on account oi his supposed want sue by their next 
 
 • • 111!/' J iricnd.. 
 
 of discretion, as his inability to bind himself, and to 
 make himself liable to the costs of the suit {o). 
 When, therefore, an infant claims a right, or suffers 
 an injury, on account of which it is necessary to 
 resort to the extraordinary jurisdiction of the court 
 of chancery, his nearest relation is supposed to be 
 the person who will take him under his protection, 
 and institute a suit to assert his rights or to vindi- 
 cate his wrongs ; and the person who institutes a 
 suit on behalf of an infant is therefore termed his 
 next friend (1). But as it frequently happens that 
 the nearest relation of the infant himself withholds 
 the right, or does the injury, or at least neglects to 
 give that protection to the infant which his consan- 
 guinity or affinity calls upon him to give, the court, 
 in favor of infants, Will permit any person to insti- 27 
 
 tute suits on their behalf (;?) (2) ; and whoever acts [26] 
 
 are not in some cases any disability; him of the property which may be 
 
 and where they are a disability, if it the object of the suit. Villenage and 
 
 is removed by reversal of the outlawry, profession were in the same predica- 
 
 by purchase of letters of absolution in ment. See Chap. II. sect. 2, part 2. 
 
 the case of excommunication, or by (o) Turner v. Turner, Strau. 708. 
 
 conformity in the case of a popish re- [Bradwell v. Weeks, 1 Johns. C. R. 
 
 cusant, a bill exhibited under the disa- 325]. 
 
 bility may be proceeded upon. Attain- (p) Andrews v. Cradock, Prec. in 
 
 der and alienage no otherwise disable Chali. 376 ; Anon. 1 Atk. 570 ; 2 P. 
 
 a person to sue than as they deprive Wms. 120 ; 1 Ves. Jr. 195. 
 
 (1) The first we hear of a procliein amy is in the statute of West- 
 minster, 2 C. 15. Infants' Lawyer. In matters relating to infantSf 
 the court often gives extra-judicial directions, and hears a person as 
 amicus curicc. Diet, per cur., in Earl of Pomfret v. Lord Windhamt 
 2 Ves. 484. The filing of a bill on behalf of an infant makes him a 
 ward of court. Atnbl. 303. Lord Raymond's case, Forr. 60. 
 
 (2) Where a bill is filed by an annuitant, whose annuity is charged Misjoinder of 
 on residuary personal estate, and by infants who are tlie devisees of ** *"* ' *" 
 
 3
 
 27 BY WHOM A BILL [ChAP. I. 
 
 thus the part wliich the nearest relation ought to 
 take, is also styled the next friend of the infant, and 
 His responeibiii- as such is named in the bill {q). The next friend 
 is liable to the costs of the suit (r), and to the cen- 
 sure of the court, if the suit is wantonly or impro- 
 
 {q) 2 Eq. Cas. Abr. 239 ; 1 Ves. Jr. contrary appears' to be the fact, on an 
 
 195 [J. J. Marshall's Rep. 49.] application by the defendant before 
 
 (r) 4 Madd. 461 ; and see Turner answer, he will be compelled to give 
 
 V. Turner, 2 P. Wins. 297, 5'. C. on security for costs, or another person 
 
 appeal, 2 Eq. Ca. Ab. 238 ; and will be appointed to sue in his stead. 
 
 Strange, 708. It is hence, of course, Wale v. Salter. Mosely, 47 ; Anon, 
 
 important to the defendant that the Mosely, 86 ; Anon. 1 Ves. Jr. 409 ; and 
 
 prochein amy, or next friend of the see Pennington v. Alvin, 1 Sim. &. 
 
 infant, be a person of substance. Stu. 264 (1). 
 Anon. 1 Atk. 507 ; and where the 
 
 leaseholds, by the annuitant as their next friend, seeking payment of 
 the annuity and the renewal of tiie leases for the infants ; this is a 
 misjoinder ; for in this case one plaintiff seeks relief in which the 
 other is not interested. Besides, if the annuitant were to die, the suit 
 would abate, though as to that portion of it which she instituted as 
 next friend, it would not abate but for the misjoinder. Again, sup- 
 posing the court to decide the one portion of the suit in favor of the 
 annuitant, and the other branch of it against the infants, they could 
 procure no redress in case the annuitant, as their next friend, refused 
 to take any further steps; or if the reverse were to take place, the 
 infants might be delayed. in the redress awarded to them by an appeal 
 interposed by the annuitant on his own behalf. Anderson V. Wallis, 
 4 Y. & C. Eq. Ex. 336 ; 1 Phil. 202. 
 • (t) As to this point, see 1 Headlam's Daniell's Ch. Pr. 80, contra. 
 
 [In New York, the next friend must be a competent and responsible 
 person ; and if required by the officer appointing him^ must give bond 
 with sureties to account to infant for moneys that may be recovered 
 in the suit. See R. S. 446, f 2. 5. Id. 144. 
 
 Perhaps, in a proper case, on an application to the court, an infant 
 who had no m?ans to indemnify a responsible person for costs, might 
 be permitted to sue by his next friend in for)na pauperis. Fulton v. 
 Roseielt, 1 Paige's C. R. 180. Chancellor Walworth, in saying 
 this, adds, " I see no objection to such a proceeding, though Lord El- 
 " don intimated it could not be done. But in such a case the court 
 " would, in the first placp, see that there Was probable cause for the 
 " proceeding, and appoint a proper person to prosecute the suit as 
 "prochein amy:' And see the case in 1 Ves. Jr. 409.]
 
 S. I.] MAY BE EXHIBITED. 27 
 
 perly instituted (s) : but if the infant attains twenty- 
 one, and afterwards thinks proper to proceed in the 28 
 cause, he is Hable to the whole costs (t) (1). If 
 the person who thus acts as a friend of an infant L J 
 does not lav his case properly before the court, bv c^nusion, ne- 
 
 " I I J ' V trlect or mistake 
 
 collusion, neglect or mistake, a new bill may be '^jJ^'*" 
 brought on belialf of the infant; and if a defect Defectinthebm. 
 appears on hearing of the cause, the court may 
 order it to stand over, with liberty to amend the 
 bill (u). 
 
 The next friend of an infant plaintiff is consi- Examination of 
 
 1 a uext foend. 
 
 dered as so far interested in the event of the suit 
 
 (») An if the next friend of an in- that, upon a bill filed in the name of 
 
 fant do not proceed in the cause, this an infant who attained twenty-one, 
 
 court, if it be desirable, will supersede the plaintiff was liable to the costs, 
 
 h'lm. Ward V. Ward, 3 Meriv. 706; though he did not proceed after he 
 
 1 Jac. & W. 483 ; but the next friend attained that age : but upon a rehear- 
 
 of an infant cannot procure the sub- ing he changed his opinion, and dis- 
 
 stitution of another person to act in missed the bill without costs, thte pro- 
 
 his place, without submitting to an chein amy being dead. See 5". C- 
 
 investigation into his past conduct by Strange, 708, and 2 Eq.Ca. Ab. 238. 
 
 the court, Mel/ing v. Mellirig, 4 It now seems, that if no misconduct 
 
 Madd.2Gl. If the next friend should (Pearce v. Pearce, 9 Ves. 548;) be 
 
 die, the court will take upon itself to proved against the next friend, either 
 
 appoint another. Z/«ncas/er v. Thorn- in the institution or progress of the 
 
 ton, Ambl. 398. [1 Dick. 346, S. C] suit, the late infant, although he 
 
 Bracey v. Sundiford, 3 Madd. 468. should not adopt it, will be liable to 
 
 [See mode of applying, ibid: and 1 the costs. Anon. 4 Madd. 461. 
 
 Grant's Prac. 341.] (u) Serle v. St. Eloy, 1 P. Wms. 
 
 (0 Turner and.rM>-«cr, 2 P. Wms. 386. Pritchard v. Quiitchant, Amhl 
 
 297, Lord King was first of opinion 147. 
 
 (1) The only exception to this rule must be, the case that some- 
 times occurs, where a decree has been made during his infancy, by 
 which the infant's rights are bound. There the suit cannot be aban- 
 doned, although it is not brought in good faith and is against the in- 
 terest of the infant. In such a case, if the infant applies in time, the 
 court might compel the next friend to reiTnunerate him for the costs 
 and cxponses. to which his estate has been improperly subjected, al- 
 though he was compelled to proceed under the decree. Waring v. 
 Crane, 2 Paige's C. R. 82.
 
 28 BY WHOM A BILL [ChAP. I. 
 
 that he or his wife (x) cannot be examined as a 
 witness (1). If their examination is necessary for 
 the purposes of justice, his name must be struck 
 
 29 out of the bill, and that of another responsible per- 
 son substituted, which the court, upon application, 
 
 Eu^s^bcnefil!'' will permit to be done (y). As some check upon 
 the general license to institute a suit on behalf of 
 an infant, if it is represented to the court that a suit 
 preferred in his name is not for his benefit, an in- 
 quiry into the fact will be directed to be made by 
 one of the masters ; and if he reports that the suit 
 is not for the benefit of the infant, the court will 
 
 btot'sni!^^ stay the proceedings (z). And if two suits for the 
 same purpose are instituted in the name of an in- 
 fant, by different persons acting as his next friend, 
 the court will direct an inquiry to be made in the 
 same manner, which suit is most for his benefit ; 
 
 (x) Head v. Head, 3 Atk. 511. (z) Da Costa v. Da Costa, 3 P. 
 
 (y) Strange, 708. As a general Wms. 140 ; Strange^ 709 ; 2 Eq. Ca. 
 
 rule, it may be stated that this is Ab. 239 ; [Garr v. Drake, 2 Johns, 
 
 done upon the next friend giving se- Ch. Rep. 542.] Such an inquiry will 
 
 curity for the costs incurred in his not be directed upon the application 
 
 time. Witts v. Campbell, 12 Ves. of the next friend himself. Jones v. 
 
 493 ; Davenportv. Davenport, 1 Sim. Powell, 2 MerLv. 141. 
 *& Stu. 101. 
 
 (1) This disability would seem to be removed by tlie statute 6 & 7 
 Vict. c. 85. 
 
 [In a case at law, Denniston v. Spurling, 1 Stra, 506, where an in- 
 fant brought the action, the wife of the next friend was called, and the 
 court allowed her to be a good witness; while in Head v. Head, re- 
 ferred to, above, in the notes, the depositions of the wife of a next 
 friend were not allowed to be read for the plaintiff, he being liable for 
 costs. Lord Redesdale's rule is no doubt correct. It is confirmed by 
 the common practice of applying for substitution, where the present 
 next friend is wanted as a witness; as in Wills v. Campbell; Daveri' 
 port V. Davenport, supra.]
 
 S.I.] 
 
 MAY BE EXHIBITED. 29 
 
 and when that point is ascertained will stay pro- [28] 
 ceeding in the other suit {a). 
 
 2. A married woman beinop under the protection 2. Mamed wo- 
 
 ~ '^ men who sue 
 
 of her husband, a suit respecting her rights is CsbS'^'or^bJ 
 
 usually instituted by them jointly (b). But it some- 
 
 (a) 1 Ves. 545 ; Owen v. Owen, generally, after a decree in one of 
 
 Dick. 310(1); Sullivan v. Sullivan, the suits. 1 Jac. R. 528. 
 
 2 Meriv. 40; Mortimer v. West, 1 (It) Smith v. Myers, 3 Madd. 474; 
 
 Swanst. 358 ; but it seems an appli- Farrer v. Wtjatt, 5 Madd. 449 ; 
 
 cation for this purpose should not be Hughes v. Evans, 1 Sim. &, Stu. 
 
 made except in a strong case, Ste- 185 (2). 
 vens V. Stevens, 6 Madd. 97 ; nor 
 
 (1) [This case of Owen v. Owen does not bear the author out in his 
 saying that proceedings will be stayed. The court was pressed to re- 
 strain the plaintiff in the second suit from prosecuting that suit ; but 
 Sir Thomas Clark, M. R., refused to do so, as such proceeding would 
 be at his peril ; and on searching by order of his honor, precedents 
 could not be found, the parties generally resting on the report. And 
 in Taylor v. Oldham, 1 Jacob's Rep. 527, the court rightly felt the 
 difficulty of staying the second suit ; for there might never be a decree 
 in the first cause. Bonnet, in his late work on the Duties of Masters, 
 says, it will be referred to the master to see which is most for the in- 
 fant's profit ; and upon these references tlie master is at liberty to sug- 
 gest any improvement in the frame of the suit, and to report any spe- 
 cial circumstances that in his opinion may be for the infant's benefit, 
 p. 45] 
 
 (2) [Schuyler v. Hoyle, 6 Johns. Ch. Rep. 196. As a general rule, 
 no temporary absence of a husband or separate maintenance, or living 
 apart, will enable a wife to sue or be sued, alone. But if he is an 
 alien who has never resided within the jurisdiction, she can. Robin- 
 son V. Reynolds, 1 Aiken's (Vermont) Rep. 174.] 
 
 So in Massacliusetts, it has been held, that the wife may sue as a 
 feme sole, where the husband abandoned her abroad, or there com- 
 pelled her to leave him, and she has come hither, and maintained her- 
 self as a feme sole. (16 Mass. Rep. 31. 6 Pick. Rep. 89.) But 
 these cases conflict, it seems, with recent English decisions. (See 
 the cases cited. Story's Eq. PI. c. 3, § 61, n. 1.) 
 
 In New York, by the Code of Procedure, the rule is now laid down 
 generally, that " when a married woman is a party, her husband must 
 be joined with her, except that, 1. When the action concerns her sep- 
 arate property, she may sue alone ; 2. When the action is between 
 herself and her husband, she may sue or be sued alone." (Code, \ 94.) 
 
 theirnextfriend.
 
 29' BY WHOM A BILL [ChAP. I. 
 
 times happens that a married woman claims some 
 right in opposition to rights claimed by her hiis- 
 30 band ; and then the husband being the person, or 
 
 one of the persons, to be complained of, the com- 
 plaint cannot be made by him. In such case, 
 therefore, as the wife being under the disability of 
 coverture cannot sue alone, and yet cannot sue 
 under the protection of her husband, she must seek 
 other protection, and the bill must be exhibited in 
 her name by her next friend (c), who is also named 
 in the bill in the same manner as in the case of 
 an infant (d) (1). But a bill cannot in the case of 
 
 (c) Griffith V. Hood, 2 Ves. 452 ; of a feme covert is not always, in 
 Lady Elibank v. Montolieu, 5 Ves. the first instance, liable to the costs. 
 737 ; Pennington v. Alvin, 1 Sim. Strange, 709 ; 2 Eq. Ca. Ab. 239 j 
 & Stu. 264. Barlee v. Barlee, 1 Sim. & Stu. 100. 
 
 (d) But, it seems, the next friend 
 
 Her disqualification as well as privilege, as thus defined, extends to 
 
 actions whether of legal or equitable nature ; whereas formerly she 
 
 might sue her husband in equity, but not at law. (See Story's Eq. 
 
 Juris. § 1368. Story's Eq. PI. ^ 61—3.) 
 
 Suits respecting (]) Husband and wife ought not to join as plaintiffs in a suit rela- 
 separate estate. 
 
 ting to the wife s separate property, but the bill ought to be filed by the 
 
 wife alone, by her next friend, and her husband ought to be made a de- 
 fendant : first, because the husband may have filed the bill in his wife's 
 name, without her knowledge or consent, and may by collusion with 
 the other parties have the accounts improperly taken : and secondly, 
 because the wife being, as to her separate estate, entitled to prosecute 
 a suit by her own authority, independently of her husband, a suit by 
 her and her husband, which is considered as the suit of the husband 
 alone, would not prevent her from instituting another suit; so that the 
 defendant might be annoyed by two suits instead of one. If the ob- 
 jection is taken by demurrer, the court will give leave to amend, by 
 striking out the name of the husband as plaintiff", and as next friend of 
 his infant children, where he is named as such, and making him a de- 
 fendant, and by inserting the name of another person as next friend. 
 
 Wakev. Parker, 1 Keen, 59 ; England v. Downs, 1 Beav. 96 ; Oicden 
 V. Campbell, 8 Sim. 551 ; Sigel v. Phelps, 7 Sim. 239 ; Thorp v. 
 
 Yeales, 1 Y. & C. Ch. C. 438 ; Daiis v. Prout,! Beav. 288. 
 In "Bowers v. Smith, 10 Paige Rep. 201. 194, it was held also by
 
 S. I.] MAY BE EXHIBITED. 31 
 
 a feme-covert be filed without lier consent (e). 
 
 (e) Andrews v. Cradock, Prec. in 1 Sim. & Stu. 2G5 ; [Fullonv.Rose- 
 Ch. 376 ; S.C.I Eq. Cas. Abr. 72 ; velt, 1 Paige Oh. Rep. 178.] 
 
 the Chancellor, that a suit to settle any question as to the separate es- 
 tate of a wife in personal property, bequeathed to her separate use, 
 free from (he control of her husband, is not properly, to be brought in 
 their joint names. But that if defendant answer the bill without ob- 
 jection, he probably waives the objection that the husband is not the 
 proper party to file the bill for wife's separate estate. 
 
 In Dyftt and wife v. North Amer. Coal Co. 20 Wend. Rep. 570 — 5. 
 On affirmance of S. C. 7 Paige Rep. 9, &t seq., in relation to the effect 
 of admissions as against her in a joint answer touching her separate 
 estate. Justice Cowen, on whose opinion the court of errors unani- 
 mously affirmed the decision below, says : when her separate estate is 
 completely distinct,, and as here independent of her husband, she seems 
 to be regarded in equity, as to her power to dispose or charge it, to 
 all intents and purposes as S, feme sole, excepting so far as her power 
 is limited by the instrument under which she takes her interest. 
 Hence she may sue or be sued by her husband, or become a substan- 
 tial party against, or at suit of others. As to form of proceeding, she 
 must sue by her prochein amy, or her husband may by her consent be 
 joined with her against a third person. So he must be made party de- 
 fendant when she is sued, but he is then merely a formal party. Ad- 
 missions, however, in their joint and several answer bind her. See 
 farther. Id. 
 
 [In a court of equity, although not at law, baron and feme are con- suits by wife 
 sidered as two different persons ; and, therefore, it is that a wife by her ^|nj** ' 
 
 prochein amy may sue her own husband. Siurgis v. Corp, 13 Ves. 
 190; 3 P. Wms. 38, note A; Kirk v. Clark, Prec.'in Ch. 275.] 
 
 [In Tennessee, a bill has been allowed to be brought by a feme co- 
 vert, for separate maintenance without a next friend, where security for 
 costs was given. Knight v. Knight, 1 Overton's Rep. 120.] 
 
 In New Jersey, a wife may in her own name, apply for divorce for 
 any cause. Awos v. A?nos, 3 Green's Cli. Rep. 171. As to the rule in 
 New York, under the new code, see n. (2), p. 29, supra. 
 
 [By the Revised Statutes of the State of New York, Vol. ii. p. 144, 
 \ 39, a bill for a divorce dissolving the marriage contract, may be exhibi- 
 ted by a wife in her own name, as well as by her husband. A bill to 
 annul a marriage on the ground that one of the parties was under the 
 age of legal consent, may be brought by tlie parent or guardian enti- 
 tled to the custody of such minor, or by the next friend of such minor, 
 lb. 142, } 21. If, on the ground of idiotcy or lunacy, any relative of 
 :6uch idiot interested to avoid the marriage may file a bill. lb. \ 24, 26.
 
 31 BY WHOM A BILL [ClIAP. I.^ 
 
 The consent' of an infant to a bill filed in his name 
 is not necessary (/). 
 [29] 3. The care and commitment of the custody of. 
 
 Licsr""'*^'' the persons and estates of idiots and lunatics are 
 the prerogative of the crown, and are always in- 
 trusted to the person holding the great seal, by the 
 
 (/) Andrews v. Cradock, Free, in Ch. 376 ; [2 Paige Ch. Rep. 178.] 
 
 And where the marriage of an idiot or lunatic is sought to be annulled 
 during tlie life-time of both the parties to the marriage, and no suit 
 shall be prosecuted by any relative, a bill may be filed on tlie applica- 
 tion of any person admitted by the court to prosecute as the next friend 
 of such idiot or lunatic. lb. 143, ^ 26. After a restoration of reason, 
 the party who has returned to sanity may file such bill. Ih. g 27. If 
 on account of force or fraud, on the application of the wronged party;, 
 or of the parent or guardian of such party. lb. J 30. If on the ground 
 of physical incapacity, by the injured party against the party whose 
 incapacity is alleged, suits to annul a marriage are directed to be by 
 bill. lb. 144, 5 35. A separation from bed and board for ever, or for 
 a limited time, may be decreed by the court of chancery on the com- 
 plaint of a married woman. ^ 50. 
 
 But no bill is to be filed in the name of a feme covert to obtain a 
 sentence of nullity declaring void her marriage contract, or to obtain a. 
 decree for a separation or limited divorce, unless the suit is prosecuted, 
 by a responsible person, as the next friend of the complainant, who is 
 to be responsible to the defendant for such costs as may be awarded by 
 the court, if it appear the suit was commenced without any reasonable 
 or justifiable cause. Lawrence v. Lawrence, 3 Paige's Ch. Rep. 267 ; - 
 163 Rule of N. Y. Chancery. The validity of this rule was tested 
 and supported in Wood v. Wood, 2 Paige's Ch. Rep. 464; S. C. on 
 appeal, 8 Wend. 357. It will be seen th;it this rule does not touch a 
 case of adultery; there, a bill may be filed by the wife without a next 
 friend : and see Kirby v. Kirby, 2 Paige's Ch. Rep. 261. See the his- 
 tory of the law of divorce in the State of New York, in Burtis v. 
 Burtis, 1 Hopk. 557.] The New York statutes on divorce are original 
 regulations, and do not adopt the English law, which is chiefly eccle- 
 siastical. See Johnson v. Johnson, 14 Wend, in Err. 637. 648. Bur- 
 tis V.' Burlis, 1 Hopk. 557. [Where a married woman is a complainant 
 and her prochein amy dies, she must naine a new next friend in due 
 time afterwards, or her bill will be dismissed. Vice-chancellor Leach, 
 ordered it to be done within two months. Barlee v. Barl e, 1 S. & 
 S. 100.]
 
 S. I.] MAY BE EXHIBITED. 31 
 
 royal sign-manual (1). By virtue of tiiis authority, 
 upon an inquisition finding any person an idiot or 
 lunatic, grants of the custody of the person and 
 estate of the idiot or lunatic are made to such per- 
 sons as the lord chancellor, or lord keeper, or lords 
 commissioners for the custody of the great seal for 
 the time being, think proper (g). Idiots and luna- rommmeee^^'or'' 
 tics, therefore, sue by the committees or their es- general. 
 tates (h) (2). Sometimes, indeed, informations 
 
 (g) 3 F.Wma. 106, 107; Ex parte (h) 1 Ca. in Ch. 19; Ridler v. 
 Pickard, 3 Ves. & Bea. 127. Ridler, 1 Eq. Ca. Ab. 279 ; Prac. 
 
 Reg. 272, Wy. Ed. 
 
 (1) [By the statutes of the State of Ne\V .York, the chancellor had 
 (prior to the abolition of the court, and transfer of its powers to the law 
 courts,) the exclusive care and custody of all idiots, lunatics, persons of 
 unsound mind, and those who are incapable of conducting their own af- 
 fairs in consequence of habitual drunkenness. 2 R. S. 62, § 1 ; 
 UAmoureax, commiltee, v. Crosby, 2 Paige's Ch. Rep. 422.] In some 
 other States, as Massachusetts, guardians are appointed by courts of 
 probate, with similar powers. See Story's Eq. PI. ^ 64 — 6. 70, and notes. 
 
 (2) [The court of chancery has no jurisdiction in the matter of luna- 
 tics, unless they are found to be .so under a commission of lunacy, or 
 they are parties in the cause in court. In re Scott, 3 Legal Obs. 164. 
 
 In the consistorial court of London, a father, not being committee, 
 instituted a suit to annul the marriage of an insane son, and the suit 
 was dismissed. A suit was' afterwards brought by the son who had 
 become of age and sane, and it was sustained. 
 
 A bill of complaint may be taken off the files of the court, if filed 
 in the name of a plaintiff who was in a state of mental incapacity. 
 Wartnahy v. Wartnaby, 1 Jao. R. 377. 
 
 In the appointment of a committee, relations, unless there is some 
 specific objections, are preferred to strangers. Ex parte Cockayne, 7 
 Ves. 591 ; Ex parte Le Heup, 18 lb. 222 ; Mat'er of Lirrngston, 1 
 J. C. R. 436. The s ame person may be committee of the person and 
 of the estate; and he may likewise be appointed guardian in a suit- 
 Ex parte Bruomfield.. 3 B. C. C. 510 ; Ex parte Ludlow, 2 P. W. 635; 
 Westcombv. Sarne, Dick. 233. The committee ought to be resident 
 within the jurisdiction of the court ; and if he goes out of it, he ought 
 not to be continued in the character of committee. In such a case, 
 it is his duty to give up his office. Ex parte Ord. 1 Jacob's R. 94.
 
 31 * BY WHOM A BILL [ChAP. I. 
 
 have been exhibited by the attonley-general on be- 
 half both of idiots and lunatics, considering them 
 as under the peculiar protection of the crown (^), 
 
 (i) Att. Gen. V. Parkhurst, 1 Ca. 1 Ca. in Ch. 153 ; 3 Bro. P. C. 633. 
 in Ch. 112 ; Att. Gen. v.- Woolrich, Toml. Ed. 
 
 Committees must give security, and be also otherwise proper and 
 responsible persons so as to be sufficient to bear costs, &c. In re 
 Frank, 2 Russ. Rep. 450; 2 Eden, supra. And, in the State of New 
 York, additional security may be required for the faithful application 
 and accounting for tlie proceeds ari.sing from a sale, lease or mortgage. 
 2R.S. 54,5 14. 
 
 Where no one can be procured to act as committee of the estate, 
 or where the committee resides at a considerable distance from the 
 estate, a receiver may be appointed, with a salary, upon giving such 
 security as a committee ^oes. Ex parte Warren, 10 Ves. 612; and 
 see Ambl. 104. 
 
 A committee will sometimes be appointed without a reference, where 
 the property is small. In re Adams, 1 Rus. & M. 112. 
 
 The committee can make himself a party to a petition, without a 
 bill filed, and thereby obtain an order to restrain waste on the real es- 
 tate of the lunatic. Matter of Hallock, 7 J. C. R. 24. 
 
 Where a committee of a lunatic sues for anything in the right of 
 the lunatic, in such case the cpmmittee as well as the lunatic, are 
 made parties. It is as needful to make the lunatic a party as an infant, 
 where a suit is on his behalf. But in the case of an idiot, it must be 
 otherwise. Fuller v. Lance, 1 C. C. 18 n; Attorney General v. Wool- 
 rich, lb. 153. 
 
 A lunatic is not a necessa^-y party plaintiff with his committee on a 
 bill to set aside an act done by the lunatic, under mental imbecility, and 
 although it is the general practice to join them, it is only a matter of 
 form. Orlley v. Mef^sere, 7 J. C. R. 139.] 
 
 The general rule as to parties now established in New York by the 
 Code of Procedure, (tit. 3, \ 91, et seq.,) is, that every action must be 
 prosecuted in the name of the real party in interest, excepting in cer- 
 tain specified cases. But the reason of the rule is to produce uni- 
 formity in the prosecution of legal or equitable demands ; formerly, 
 assignees of certain choses in action must have sued at law in name 
 of assignor, not so now. (See the title of the code, supra.) It does 
 not apply, it seems, to persons under mental disability, in whose names, 
 the committee of their persons and estate, prosecute as usual, it is 
 presumed, with or without joining the name of the individuals who are 
 of non-sane understanding.
 
 S. I.] MAY BE EXHIBITED. 
 
 31 
 
 and particularly if the interests of the committee 
 have clashed with those of the lunatic (/>•). But 
 in such cases, a proper relator ought to be named (I); 
 and where a person found a lunatic has had no 32 
 
 committee, such an information has been filed, and L^ -1 
 the court has proceeded to give directions for the . 
 care of the property of the lunatic, and for proper 
 proceedings to obtain the appointment of a com- 
 mittee (m). 
 
 Persons incapable of acting for themselves °„*|'g^J"g°°"-^°'^- 
 though not idiots or lunatics, or infants, have been 
 permitted to sue by their next friend, without the 
 intervention of the attorney-general (n) (1), 
 
 (h) See Att. Gen. v. Panther, (m) Ait. Gen. on behalf of Maria 
 
 Dick. 748. Lepine, a lunatic, at the relation of 
 
 (Z) Att. Gen. at relation of Griffith John Fox ; and also Maria Lepine 
 
 Vaughan, a lunatic, against Tyler against Earl and Countess Howe 
 
 and others, 11 July, 1764. On mo- and others. 26 Marcli, 1793— 3 
 
 tion, ordered that a proper relator April 1794. 
 
 should be appointed, who might be (n) Eliz. Liney, a person deaf 
 
 responsible to the defendants for the and dumb, by her next friend, agamst 
 
 costs of the suit. See Dick. 378 ; 2 Thomas Witherly and others. In 
 
 Eden. 230. And see Att. Gen. v. chancery — Decree, 1 Dec. 1760. 
 
 Plumptree, 5 Madd. 452, though the Decree on supplemental bill, 4 March, 
 
 case of a charity information. 1779. See Wartnaby v. Wartnaby, 
 
 IJac. Rep. 377. 
 
 (1) [Chancellor Thurlow has said, he was not against the practice 
 of finding a man lunatic who was, by the infirmities of age, unequal 
 to the management of his affairs. But the more usual course in the 
 English court is to appoint him a guardian, or some person to act for 
 him, in the receiving and managing his property. Cur. Can. 468; 
 Wyatt's P. R. 272; Sackvill v. Ayleicorth, 1 Vern. 106,. and cases 
 there ; Attorney General v. Tyler, 2 Eden. 230 ; Highra. on Lun. 4. 
 In the matter of Barker, 2 J. C. R. 232, a commission was issued 
 against a party who, from age, had become incapacitated.] 
 
 [In Malin v. Mnlin, 2 Johns. Ch. Rep. 238, one Jemima Wilkinson, 
 who was a necessary party plaintiff, had religious scruples from be- 
 coming a party to any suit. Chancellor Kent said, " if Jemima W. 
 " has religious scruples which cannot be surmounted, and this shall be
 
 32 BY WHOM A BILL [ChAP. L 
 
 Defendants ^ ^j^jj ^^^ ^^ exhibited against all bodies politic 
 
 and corporate, and all persons, as well as infants, 
 married women, idiots and lunatics, as those who 
 are not under the same disability, excepting only 
 
 rmai^iod"wS'* the king and queen (o). But to a bill filed against 
 
 man, idiot, or lu- . , i i i i i i 
 
 natic. a married woman her husband must also be a party ,^ 
 
 unless he is an exile, or has abjured the realm (1); 
 and the committee of the estate of an idiot or lu- 
 natic must be made defendant with the person 
 whose property is under his care (2). Where the 
 
 • (o) .See Chap. II. sect. 1, p. [102.] 
 
 " made to appear, either by affidavit or the report of a master, perhaps 
 " she may be permitted to become plaintiff by he prochein amy. A 
 " person incompetent to protect himself from age or weakness of mind, 
 " or from some religious delusion or fanaticism, quern urget fanaticus 
 " error, vel inacunda Diana, ought to come under the protection of the 
 . "court."] 
 
 d) \^Pain V. , Gary, 92 ; Same book, 55 ; Clark v. Lord, An- 
 gler, 1 C. C. 41 ; Pierce v. Thorvly, 2 Sim. 167. This is not invaria- 
 bly the case, for she may, possibly, claim in opposition to her husband. 
 Wyhourn v. Blount, 1 Dick. 155 ; Newsome v. Bowyer, 3 P. Wms. 38, 
 note a ; Ferine v. Sivaine, 1 J. C. R. 24 ; Ferguson v. Smith, 2 lb.. 
 139; and see Carey v. Whiitipgham, 1 S. & S. 163. Or, she may- 
 have been sued by her husband. Ex parte Strangeways, 3 Atk. 478. 
 Perhaps they may be living separate. Barry v. Cane, 3 Mad. Rep. 
 472 ; and see Chambers v. Bull, 1 Anst. 269 ; Leiihly v. Taylor, Dick. 
 372; lb. 138. 143. 155; Plomer v. Plomer, 1 C. R. 68 ; Ormsby v. 
 White, 1 Hogan's C. R. 254. Or she or he may be lunatic ; or she 
 may be deserted ; or the husband may be necessarily abroad. 1 Grant^s 
 Pract. (^2d edit.) ; Glover v. Young, Bunb. 167; Carter v. Carter, I 
 Paige's Ch. Rep. 463 ; Bushell v. Bushell, 1 S. & S. 164. Or, she 
 may be under age. 1 Vent. Rep. 185 ; Moore v. Greenville, Totti. 95.. 
 If a plea or demurrer is necessary, they must, in ordinary cases, both 
 join. Pain v. , supra ; Spicer v. Pakine, Gary, 39.] 
 
 (2) [Sackcill v. Ayleuorth, 1 Vern. 105; note 13, at p. Ill of 3 P- 
 Wms. The soundness of the observation here made, as to joining the 
 lunatic with his committee as a defendant, may well be doubted ; see 
 what Chancellor Kent says in The Executors of Brasher v. Van Cort- 
 landt, 2 J. C. R. 242, and cases there referred to; but aho see Harri-
 
 S. I.] MAY BE EXHIBITED. 32 
 
 rights of the crown are concerned, if they extend Hg^htfof^'the 
 only to the superintendence of a pubhc trust, as in cerae°d."^ *'°°' 
 the case already mentioned of charity, the king's 
 attorney-general may be made a party to sustain 
 those rights ; and in other cases, where the crown 
 is not in possession, a title vested in it is not im- 
 peached, and its rights are only incidently concerned? 
 it has generally considered that the king's attorney- 
 general may be a party in respect of those rights, [31] 33 
 and the practice has been accordingly (j^). But 
 where the crown is in possession, or any title is. 
 vested in it which the suit seeks to divest or affect, 
 
 , (p) See Balch v. Wastall, 1 P. Wms. 445 ; Bolder v. Bank of Eng- 
 land, 10 Ves. 352. 
 
 son V. Rowan, Coxe's Digest, pi. 229. A person in the -condition of a 
 lunatic or idiot has been allowed to answer by guardian. Westcomb 
 V. Westcomb, Dick. 233 ; Gason v. Garnier, lb. 286; and see Lee v. 
 Ryder, Geld. & Mad. 292 ; Anonymous, cited in note B. 3 P. Wms. 
 Ill ; Eyre v. Wake, 4 Ves. Jr. 795 ; Wilson v. Grace, 14 Ves. Jr. 171. 
 Where the amount of property has been small, a guardian has been 
 appjinted. Ex parte Picard, 3 V. & B. 127. In Howled v. Wilbra- 
 Jiam, 5 Mad. 423, on motion of the complainant, a guardian was ap- 
 pointed to defend for a lunatic defendant. 
 
 If the committee happens to be a defendant in his own right, the 
 -complainant should proceed against the lunatic, (this, by the by, would 
 seem to show the latter ought to be a party,) and if the committee re- 
 fuses to answer for him, anew committee will be appointed. Lloyd v. 
 
 , 2 Dick. 460. See a case where the committee was one of the 
 
 complainants. Snell v. Hyatt, Dick. 281. 
 
 It is doubtful how far the insolvency of a committee will be a suffi- 
 cient cause for removing him as a party. In one case it was done ; 
 but in a later case, it was not. See Ex parte Mildmay, 3 Ves. Jr. 2 ; 
 Ex parte Proclor, 1 Swanst. G. R. 532 ; Ex parte Livingston, 1 J. C. 
 R. 436. 
 
 Where, after a decree in a suit, in which a lunatic and his committee 
 are defendants, and the committee dies and a new one is appointed; a 
 motion should be made for an order that the latter be named as the 
 ■committee in all the future proceedings in the cause. Lyon v. Mercer, 
 1 Sim. & S. 356.]
 
 33 BY WHOM A BILL [Chap. L 
 
 or its rights are the immediate and sole object of 
 the suit, the application must be to the king by pe- 
 tition of right {q), upon which, however, the crown 
 may refer it to the chancellor to do right, and may 
 dn-ect that the attorney-general shall be made a 
 party to a suit for that purpose; or a suit may be 
 instituted in the court of exchequer, as a court of 
 revenue, and general auditor for the king, and re- 
 lief there obtained, the attorney general being 
 made a party (r) (1). The queen has also the 
 same prerogative (s). 
 partie^s^^fJfthe A sult uiay affect the rights of persona out of the 
 Aiien8,''&cr' jurisdiction of the court, and consequently not com- 
 pellable to appear in it (2). If they cannot be pre- 
 
 (j) See legal jurlc. in Chanc. chancery, 24 Oct. 1746 ; Pawlett v^ 
 
 stated p. 18. Reeve against Att. Att. Gen. in Excheq. Hardres, 465 ; 
 
 Gen. mentioned in Pen?) against Zior(Z Poole v. Att. Gen. Excheq. Parker, 
 
 Baltimore, 1 Ves. 445, 446. The 272 ; Wilkes's case, Exch. Lane, 54. 
 
 bill was dismissed 27 Nov. 1741, by . (s) 2 Roll. Ab. 213. But see 
 
 Lord Hardwicke. Staunf. Prffier. 75—6. 9 Hen. VL 53. 
 
 (r) Lord Hardwicke, in Huggins Writ of annuity against Joan qneeu 
 
 and York-buildings Company, in dowager of Henry IV. 
 
 (1) See note (1) page 6. . - 
 
 Suit by a foreign (2) A foreign sovereign may sue in equity. Hullettv. The King 
 sovereign. ^j. g-^^j^^ g Bligh. 31, (N. S.) ; and in the courts of the United States, 
 
 (Stery's Eq. PI. \ 65, n. 3. See also, Id. \ 69, 69 a, 4th ed.) . But 
 alien-spverei^-ns, and their jepresentatives of the sovereignty of the 
 respective nations abroad, are exempted from civil prosecutions. The 
 law of nations sanctions their inviolability. By the constitution of 
 the United States, (Art. 3, sec. 2,) tlue supreme court of the United 
 States has original jurisdiction in all cases affecting ambassadors, 
 other public ministers and consuls, and those in which a State is a 
 party. The judicial power of the United States also extends to con* 
 troversies to which the United States is a party, or between two or 
 more states, between a state and citizen of tinother state ; (but not to 
 any suit commenced or pro?ecHted against one of the United States 
 Itj citizens of another state, or by citizens or subjects of any foreign 
 state. Art 11 of Amendments,) between citizens of different states,
 
 S. I.] 
 
 MAY BE EXHIBITED. 34 
 
 vailed upon to make defence to the bill, yet, if there 
 are other parties, the court will in some cases pro- 
 ceed against those parties (t) ; and- if the absent 
 parties are merely passive objects of the judgment 
 of the court, or their rights are incidental to those [321 
 of parties before the court, a complete determination 
 may be obtained (u) ; but if the absent parties are 
 
 (t) Williams v. Whinyaies, 2 Br. that the decree was contrary to the 
 
 C. C. 399 ; 1 Sch. & Lefr. 240; 16 will, and that the University of Glae- 
 
 Ves. 326. gow had not been made party to the 
 
 («) In Att. Gen. at relation of suit ; Lord Hardwicke ovorruled the 
 
 University of Glasgow against Ba- latter objection, as the university of 
 
 liol College and others, in chancery Glasgow was a corporation out of 
 
 Dec. llth* 1741, which was an in- the reach of the process of the court, 
 
 formation filed, impeaching a decree which warranted the proceeding 
 
 made in 1699, on an inforiiiation by without making that body party to 
 
 the attorney-general against the the suit. See Walley v. W/ialley, 
 
 trustees of a testator, his heirs at 1 Vern.- 487 ; Rogers v. Linton, 
 
 law, and others, to establish a will, Bunb. 200 ; Quintine v. Yard, 1 Eq. 
 
 and a charity created by it, alleging Ca. Abr. 74. 
 
 between citizens of the same state claimiixg lands under grants of dif- 
 ferent states ; and between a state, or the citizens thereof, and foreign 
 stales, citizens, or subjects, in which cases the feupreme court of Uni- 
 ted States has appellate jurisdiction, both as to law and facts, with such 
 exceptions and under such. regulations as congress shall make. Const, 
 ib. art. 3, ^ 2. 
 
 In a suit against a sovereign prince, who is also a British suhject, the g„it against afo- 
 bill ought, upon the face of it, to show that the subject matter of it ''e'sn sovereign, 
 constitutes a case on which a sovereign prince is liable to be sued as 
 a subject. The Duke of Brunswick v. The King of Hanover, 6 Beav. 
 1. (See this case as quoted in Story's ilq. I'l. \ 69 a, 4th ed., and see 
 Id. 5 69.) 
 
 A foreign state may sue in equity. But it must sue in the names .^uitbyn foreign 
 of some public officers whaare entitled to represent its interests, and 
 upon whom process can be served on the part of the defendants, and 
 who can be called upon to answer the cross bill" of the defendants. 
 And, therefore, wiiere a bill was filed by "the government of the state 
 of Columbia, and* Don- M. J. Hiirtado, a citizen of that state, and min- 
 ister plenipotentiary from tiie same," &.C., a general demurrer to the 
 whole bill was ailmved. 7 he Columbiam Government v. Rathschild, 
 1 Sim. 94.
 
 34 BY WHOM A BILL [ChAP. I. 
 
 to be active in the performance of a decree, or if 
 they have rights vi^hoUy distinct from those of the 
 other parties, the court cannot proceed to a deter- 
 mination against them (x) (1). 
 
 (x) See Fell v. Brown, 2 Bro. C. an absolute defect of justice, which 
 C. 276; [Bifield V. Taylor, 1 Beatty, seems to require the interposition of 
 91.] Hence there sometimes arises the legislature. 
 
 (1) The doctrine of the text is, that a.suit may affect the rights of 
 persons out of the jurisdiction, and therefore not compellable to ap- 
 pear, who cannot be prevailed on to make defence, who are merely pas- 
 sive under the judgment, not active in the decree; or whose rights are 
 not wholly distinct but incidental from those of the parties before the 
 court : otherwise the court cannot proceed to a determination against 
 them, and by consequence there is in England, sometimes a' failure of 
 justice that seems to require legislative interposition ; note (x), ut sup. 
 
 The practice in England is, where there are necessary parties, to 
 state in the bill that they are without the jurisdiction, and to pray pro- 
 cess whenever they come within the jurisdiction. See post, 399. 
 Smith V. Hibernian Mine Co. 1 Scho. & Lef. 240. 2 lb. 548. Ed- 
 wards on Parties, 3, 4. They are thus made parties, [for none are 
 parties as defendants, though named in the bill, against whom process 
 is not prayed. Fmvkes v. Pratt, 1 P. Wms. 693 ; Windsor v. Wind- 
 sor, 2 Dick. 707; Coop. Eq. 16; Beames' Elem. Pleas, 148.] They 
 have then a right to appear as such. But if they obstinately refuse, 
 there may be, as suggested, a failure of justice — where their rights 
 are primary in' the suit, or not merely incidental. For the principle 
 applies to all courts of equity, that no court can adjudicate directly 
 upon a person's right, without the party being actually or construc- 
 tively before the court. Mallow v. Hinde, 12 Wheat. 193; 6 Cond. 
 Rep. 516, et seq. And the general rule founded on that principle, as to 
 parties, (and which with its qualifications is treated in the sequel, p. 
 43. 190. 325. 397, et seq.,) requires that all, materially interested in 
 the subject and objecfof the suit, must be brought in as parties. But 
 the rule was made by the court to promote justice, and may be modi- 
 fied for the like purpose. •Elmendorffv. Taylor, 10 Wheat. 152. It 
 is one of convenience and discretion, and is held by the courts of the 
 United States, as not universally applicable to cases in those courts. lb. 
 Accordingly the rule is bent to prevent as far as possible, a failure of 
 justice. " It IS the settled practice of those courts, that if the case 
 can be decided on its merits, between those regularly before them, to 
 decree as between them. The circumstance that* others, not within 
 their jurisdiction, may be collaterally or incidentally concerned, who
 
 S. I.] MAY BE EXHIBITED. 34 
 
 must have been made parties had they been amenable to its process, 
 shall not expel other suitors who have a constitutional and legal rij^ht 
 to submit tleir case to a court of the United States, provided the de- 
 cree may be made without affecting' those interests." The court, per 
 Ch. J. Marshall, Vaitier v. Hinde, 7 Peters, 263—4. 252. The court 
 will require the plaintiff to do all in his power to bring in every person 
 concerned in interest. But if the case may be completely decided as 
 between the litigants, the circumstance of an interest in some one 
 •whom the process cannot reach, as if he be resident of another state, 
 will not* prevent a decree on merits. So where the right of the party 
 before the court do not depend on that of the party not before the 
 court. But even then, if practicable, they all should be brought in on 
 the general principle to avoid multiplicity of suits, and have the whole 
 matter settled. But where the complainants have no rights separable 
 from and independent of the rights of persons not parties, or whose 
 rights lie at tlie very foundation of the claim of right by the plaintiffs, 
 and a final decree cannot be made between the parties litigant without 
 directly affecting and prejudicing the rights of others not made parties, 
 these must be brought in or the bill be dismissed ; but the court, in lay- 
 ing down this doctrine, would still retain the cause, (which was an 
 injunction bill,) where parties required it, as between the parties, until 
 the plaintiffs have opportunity of litigating with the other parties in a 
 competent tribunal, and if it finally appear they are equitably entitled 
 to the interest claimed by the other parties, may proceed to a final de- 
 cree on the merits. Mallow v. Hinde, 12 Wheat. 193; 6 Cond. Rep. 
 616 — 519, 520. So in an earlier case, where it was held that the inca- 
 pacity of the circuit courts of the United States to proceed against any 
 person residing within the United States, but not within the district 
 for which the court may be liolden, justifies them in dispensing with 
 parties merely formal ; and so where the real merits may be determined 
 •without essentially affecting the interests of absentees, it may be the 
 duty of the court to decree as between the parties before them ; but 
 where absentees are essential parties to the merits of the question, and 
 would be much affected by the decree, the court will not proceed to a 
 final decision until they are made parties, even though some of them 
 are not within the jurisdiction of the court. Nevertheless the court 
 suggested that it was possible the essential parties — who were as- 
 signees of insolvents — might consent to make themselves parties, and 
 the court would, instead of dismissing the bill brought to hearing for 
 want of proper parties, give leave to make new parties. Russell v. 
 Clark's Ex'rs., 7 Cranch, 69—97; 2 Cond. Rep. 426—7. See also 
 Harrison v. Vrann, 1. Story's Rep.^ 66. 64. 
 
 The extra-territorial effect of a judgment or decree in personam, 
 against a non-resident, and not served with process, within the jurisdic- 
 tion of the court, or who docs not appear voluntarily, is regarded by 
 
 4
 
 94 BY WHOM A BILL MAY BE EXHIBITED. 
 
 the state courts as inoperative out of thp state, or purely local. By 
 the lex loci rei sitcc, property of such person may be made subject to 
 the jurisdiction, so as to render the judgment or decree binding, as a 
 proceeding in rem; but it will not be allowed to operate in personam 
 in the courts of any other state. The question has been decided the 
 same way in nearly half the states of the union, and probably no 
 courts of any state have held such a proceeding conclusive upon the 
 rights of a party proceeded against, who has not appeared or other- 
 wise submitted his rights to the decision of the court in which such 
 • proceedings were instituted. 'Bales v. Delavan, 5 Paige Ch. Rep. 
 
 305 — 6, and cases cited. But in New York and some other states, (24 
 Pick. 412, Rule 8 in Chancery,) provision by legislation and rule of 
 court, authorising, in lieu of actual service of process on parties be- 
 yond its jurisdiction, publication or personal service of an order, to 
 appear and answer, and in default, that the bill be taken as confessed, 
 [and as s,o to unknown persons having an interest in the subject matter, 
 see laws of New York, 1831, p. 243, rules 174, et seq. Hudsonv, 
 TwiniiTg, 1 Taral. 315; Ely v. Broughton,2 Sim. &. S. 188,] obviates 
 the difficulty of making them parties, and renders an omission so to do, 
 less excusable than where for want of such legislation, the non-joinder 
 of parties having rights, has been a source of grievance and fraud. 
 [Lord Redesdale, Giff'ord v. Hart, 1 Sch. & Lef. 386.] 
 
 Where such provision prevails, the English rule, so far as charging 
 the fact of defendants being beyond the jurisdiction, is not adopted. 
 Otherwise the fact is stated, and then the court proceeds against the 
 parties, and if the disposition of the property is in the power of the 
 other party, the court may act upon it. Cruger v. Daniel el al., 1 
 McMullan Eq. C, S. Carolina, 190. 157.
 
 35 
 
 CHAPTER I. 
 
 [33] • 
 
 Section II. 
 
 Of the several kinds and distinctions of Bills. 
 
 It has been mentioned in the introduction that 
 different kinds of bills are used to answer the se- 
 veral purposes of instituting an original suit, of ad- 
 ding to, continuing, or obtaining the benefit of a 
 suit thus instituted, of instituting a cross-suit, of im- 
 pugning the judgment of the court on a suit brought* 
 to a decision, and of carrying a judgment into exe- 
 cution. The several kinds of bills have been usu- 
 ally considered as capable of being arranged under 
 three general heads : I. Original bills, which re- 
 late to some matter not before litigated in the court 
 by the same persons standing in the same interests. 
 
 II. Bills not original, which are either an addition 
 to, or a continuance of, an original bill, or both. 
 
 III. Bills, which, though occasioned by or seeking 
 the benefit of a former bill, or of a decision made 
 upon it, or attempting to obtain a reversal of a de- 
 cision, are not considered as a continuance of the 
 former bill, but in the nature of original bills. And 
 though this arrangement is not perhaps the most 
 perfect, yet, as it is nearly just, and has been very 
 generally adopted in argument, and in the books of 
 reports and of practice, it will be convenient to treat 36 
 of the different kinds of bills with reference to it.
 
 36 THE SEVERAL KINDS [ChAP I. 
 
 [34] I. A bill may pray relief against an injury suf- 
 
 ngmai bi s. ^^^^^^ ^j. Qj^jy ggek the assistaiicc of the' court to 
 enable the plaintiff to defend himself against a pos- 
 sible future injury, or to support or defend a suit in 
 Those which a court of ordinary jurisdiction. Original bills have 
 
 pray rehei, aie, J J O 
 
 therefore been again divided into bills praying relief, 
 and bills not praying relief. An original bill pray- 
 
 "Ifbiu/ °"^' "^S relief may be, 1. A bill praying the decree or 
 order of the court touching some right claimed by 
 the person exhibiting the bill, in opposition to some 
 right claimed by the person against whom the bill 
 
 Misofinterpiea. jg exhibited. 2. A bill of interpleader, where the 
 person exhibiting the bill claims no right in oppo- 
 sition to the rights claimed by the persons against 
 . whom the bill is exhibited, but prays the decree of 
 the court touching the rights of those persons, for 
 the safety of the persons exhibiting the bill (1).. 
 
 certiorari bills. ^ A bill praying the writ of certiorari to remove a 
 
 Those which do cause from an inferior court of equity. An original 
 
 not pray relief i • /» t * i mi 
 
 *etuate'testimo ^^^^ ^^^ P^^J^^S relief may be, 1. A bill to perpe- 
 duco"" °^ tuate the testimony of witnesses. 2. A bill for dis- 
 covery of facts resting within the knowledge of the 
 person against whom the bill is exhibited, or of 
 deeds, writings, or other things in his custody or 
 power. 
 n. Bills not on- II. A suit iiupcrfcct in its frame, or become so 
 
 ginal. Such are . i i /» • i i i i • i 
 
 by accident before its end has been obtained, may, 
 
 in many cases, be rendered perfect by an new bill, 
 
 ^ which is not considered as an original bill, but 
 
 merely as an addition to or continuance of the 
 
 Supplemental former bill, or .botli. A bill of this kind maybe, 
 
 (1) [Bedell v. Hoffman, 2 Paige's Rep. 199.]
 
 S. II.] OF BILLS. 36 
 
 1. A supplemental bill, which is merely an addition 37 
 
 to the original. 2. A bill of revivor, which is a [^5] 
 continuance of the original bill, when by death some ' ^ ° '■e^i^or. 
 party to it has become incapable of prosecuting oi* 
 defending a suit, or a female plaintiff has by mar- 
 
 ■ ^11 i/» /» • 1 rt bills of revivor 
 
 riage nicapacitatcd herseli irom sunig alone. S. and supplement. 
 A bill both of revivor and supplement, which con- 
 tinues a suit upon an abatement, and supplies de- 
 fects arisen from some event subsequent to the 
 institution of the .suit (1). 
 
 III. Bills for the purposes of cross litigation of J^"^^^'^"' /" rigf. 
 matters already depending before the court, of con- ^l ""'"*■ ^'"'^ 
 troverting, suspending, avoiding or carrying into exe- 
 cution a judgment of the court, or of obtaining the 
 benefit of a suit which the plaintiff is not entitled to 
 add to or continue for the purpose of supplying any 
 defects in it, have been generally considered under 
 the head of bills in the nature of original bills, 
 though occasioned by or seeking the benefit of 
 former bills : and maybe, 1. A cross-bill, exhibited crossbiiu, 
 by the defendant in a former bill, against the plain- 
 tiff in the same bill, touching some matter in litigation 
 in the first bill. A bill of review, to examine and biiu of review, 
 reverse a decree made upon a former bill, and 
 signed by the person holding the great seal, and 
 enrolled, whereby it has become a record of the court bins in the na- 
 (2). 3. A bill in the nature of a bill of review, brouofht revtw. 
 
 ^ ' . o ijjiig tg impeach 
 
 by a person not bound by the former decree. 4. A {,^^^"''° ""^ 
 bill to impeach a decree upon the ground of fraud. 5. or"avoid"l''d?- 
 A bill to suspend the operation of a decree on special 
 circumstances, or to avoid it on the ground of mat- 
 
 (1) [WestcoHv. Cady, 5 Johns. Ch. Rep. 337.] 
 
 (2) [ Wiser v. Blachley and o'.hers, 2 lb. 488.]
 
 37 FRAME AND END OF THE [ChaP. I. 
 
 dlcreeVto^xe* ^^^ ariseii subseqiicnt to it. 6. A bill to carry a 
 S8° rsn ^^^^^^ made in a former suit into execution. 7. A 
 bills in the na- bill iu the naturB of a bill of revivor, to obtain the 
 
 ture of bills °^ ■, ^ ^ ^ i 
 
 revivor. benefit of a suit after abatement m certam cases 
 
 which do not admit of a continuance of the original 
 
 Si ^f ^s^upjie- bill. 8. A bill in the nature of a supplemental bill, 
 to obtain the benefit of a suit, either after abatement 
 in other cases which do not admit of a continuance 
 of the original bill, or after the suit is become de- 
 fective, without abatement in cases which do not 
 admit of a supplemental bill to supply that defect. 
 
 CHAPTER I. 
 
 Section III. 
 
 Of the frame and end of the several kinds of Bills^ 
 and of Informations, 
 
 ^ree classes of The scvcral kiuds of bills have been already con- 
 sidered as divided into three classes. In the first 
 class have been ranked original bills ; in the second, 
 bills not original ; in the third, bills in the nature 
 of original bills, though occasioned by former bills. 
 The frame and end of the several kinds of bills will 
 be treated with reference to this distribution, and 
 the peculiarities of informations will be considered 
 under a fourth head. 
 
 I. origiaai bill*. I. Original bills have been mentioned as again 
 
 divisible into bills praying relief, and bills not pray- 
 ing relief.
 
 S. III.] SEVERAL KINDS OF BILLS. 38 
 
 Original bills praying relief have been ranked [37] 
 under three heads. — 1. Orio^inal bills praving the ^9 
 
 ~ 1 w o Division of origi- 
 
 decree of the court touching some right claimed bv "'^.l^'"* praying 
 
 o O « relief. 
 
 the person exhibiting the bill, in opposition to rights 
 claimed by the person against whom the bill is 
 exhibited. 2. Bills of interpleader. And, 3. Cer- 
 tiorari bills. — Bills of the first kind are the bills 
 most usually exhibited in the court ; and as the 
 several other kinds of bills are either consequences 
 of this, or very similar to it in many respects, the 
 consideration of bills of this kind will in a great 
 measure involve the consideration of bills in general. 
 
 1. An original bill, praying the decree of^ the ginai wiu.'^ °"* 
 court touching rights claimed by the person exhi- j'Jjf",^^;*^^^ ^^^^^ 
 biting the bill, in opposition to rights claimed by co!i^t^*=* *'*^ ^''^ 
 the person against whom the bill is exhibited, must 
 show the rights of the plaintiff, or person exhibiting 
 the bill ; by whom, and in what manner, he is in- 
 jured ; or in what he wants the assistance of the 
 court ; and that he is without remedy, except in a 
 court of equity, or at least is properly relievable, or 
 can be most effectually relieved there. Having thus 
 shown the plaintiff's title to the assistance of the 
 court, the bill may pray, that the defendant, or per- 
 sons against whom the bill is exhibited, may an- 
 swer upon oath (1), the matters charged against 
 him ; and it may also pray the relief or assistance and pray Buitabie 
 of the court which the plaintiff's case entitles him 
 to. For these purposes the bill must pray, that a 
 writ, called a writ of subpcena, may issue under the pan"^*"^ *^'*'" 
 
 (1) Unless the answer on oath be waived, as it may be in England 
 by special order, or consent, and in some of the United States, by legis- 
 lative provision and general rules of courts. See p. 10, note.
 
 39 FRAME AND END OF THE [ChAP. I. 
 
 great seal, which is the seal of the court, to require 
 
 the defendant's appearance, and answer to the bill, 
 
 [^8] unless the defendant has privilege of peerage, or is 
 
 40 a lord of parliament, or is made a defendant as an 
 OT a e or mis- ^ji^^,^^. of tlic crowu (1). lu thc casc of a peer or 
 
 peeress, or lord of parliament, the bill must first 
 pray the letter of the person holding the great seal, 
 called a letter missive, requesting the defendant to 
 appear to and answer the bill (a) ; and the writ of 
 subpcena only in default of compliance with that 
 findan* fn fhe ^'^qucst. And if thc attorney-general is made a 
 torney-genlral' dcfcndaut as au officcr of the crown, the bill must 
 Se?!'^*'^ ^ pray, instead of the writ of subpoena (h), that he, 
 being attended with a copy, may appear and put in 
 rif reu/r ^^'^^" SiU auswor. It is usual to add to the prayer of the 
 bill a general prayer of that relief which the cir- 
 cumstances of the case may require ; that if the 
 plaintiff mistakes the relief to which he is entitled, 
 the court may yet afford him that relief to which he 
 has a right (<?), (2). Indeed it has been said, that 
 
 (a) This mark of courtesy . is in not members of the House of Com- 
 
 respect of peerage generally, see mens, see Aet of Union with Ireland, 
 
 Lord Milsington v. Earl of Port- 39 and 40 Geo. III. c. 67, art. 4, and 
 
 more, 1 Ves. &. B. 419 ; and is to be Robinson v. Lord Rokeby, 8 Ves. 601. 
 observed towards Scotch peers, see (h) See Barclay v. Russell, Dick 
 
 Act of Union with Scotland, 5 and 6 729 ; S. C. 3 Ves. 424. 
 Anne, c. 8, .art. 23, and Irish peers (c) Mollis v. Carr,2 Mod. 86. 
 
 Set off. 
 
 (1) See note (1), p. 11. 
 Frame of prayer. (2) Where a bill prays that an account may be taken of the deal- 
 ings and transactions between the plaintiff and the defendant, who has 
 brought an action against the plaintiff, and that the defendant may be 
 decreed to pay to the plaintiff what shall appear to be due to. him upon 
 taking such account, the plaintiff being ready and willing to pay what, 
 if any thing, shall appear to be due from him to the defendant, the court 
 will not decree a set-off; because with such relief the relief prayed 
 for is totally inconsistent j for in the case of a set-off, the defendant
 
 S. III.] SEVERAL KINDS OF BILLS. 41 
 
 a prayer of general relief, without a special prayer 
 
 of the particular relief to which the plaintiff thinks 
 
 himself entitled, is sufficient {d) \ and that the 
 
 particular relief which the case requires may, at 
 
 the hearing, be prayed at the bar (e). But this [39] 
 
 relief must be agreeable to the case made by the nfSe"a^eet 
 
 bill (/) (1), and not diffi3rent from it (^) (2); and made by the mil 
 
 {d) See Cooh v. Martyn, 2 Atk. 3. Sch. & Lefr. 10. 729 ; 3 Swanst. 
 
 The report of this case is app;uent!y 208, note. {English v. Foxall, 2 
 
 very inaccurate. See 1 Eden. R. Peters, 595.) 
 
 26 ; 11 Ves. 574. [See Johnson v. {g) 2 Atk, 141 ; 3 Atk. 132; 1 
 
 Johnson, 1 Munf. 549.] Ves. Jr. 426; 2 Ves. 299; Birch v- 
 
 (e) See Wilkinson v. Beal, 4 Coriin, 9 Dec. 1784, in Chan., 1 Ves. 
 
 Madd. 408. Jr. 426 ; Lord Walpole v. Lord Or- 
 
 (/) Beaumont v. Boultbee, 5 Ves. ford, 3 Ves. 402 ; Palk v. Lord Clin- 
 
 485 ; Hiern v. Mill, 13 Ves. 114 ; 2 ion, 12 Ves. 48. 
 
 would not be ordered to pay the plaintiff the balance, but the balance 
 would be directed to be applied in satisfaction of the damages, if any 
 which the defendant would otherwise be entitled to receive. Rawson 
 Samuel, Cr. &. Phil. 161. 
 
 (1) The plaintiff may have such relief, under the prayer for general Relief under tha 
 relief, as the statement of his case entitles him to ask. 'j'^'t'i^Mwi v. ^ai^Jg^gf"' ^®°*' 
 Columbine, Taml. 135; Meller v. Minel, lb. 487. 
 
 But after stating certain grounds for relief in the bill, he cannot 
 have relief upon other grounds not pointed out in the bill ; because 
 that would be a surprise upon the defendant. And hence where an 
 equitable mortgagee seeks relief against elegits on the ground of fraud, 
 no relief can be given on the general ground, real or supposed, that an 
 equitable mortgage has priority over a title by elegit under a judgment 
 subsequent to tlie mortgage, where no case is made by tiie bill for re- 
 lief on that ground ; although, indeed, there is a charge that the plain- 
 tiff is entitled to priority in respect of the equitable mortgage over the 
 elegits, and a prayer corresponding to such charge, but such charge 
 does not clearly point out the general ground above mentioned as a 
 ground for relief, distinct from that of fraud, so as to entitle the plain- 
 tiff at the hearing to ask relief upon that general ground. Whitworth 
 V. Gaug'iin, Cr. &. Phil. 325. 
 
 (2) The prayer may be for general, specific and alternative relief. 
 
 Under the general prayer, particular relief may be had, but the re- 
 lief is only as the case stated and proofs sustaining it justify. (Hob- 
 son V. M'Arlkur, 16 Peters, 182. 195. English v. Foxall, 2 Id. 695.) 
 The allegata dind probata must meet, or agree with reasonable certain-
 
 41 FRAME AND END OF THE [ChAP. I. 
 
 the court will not in all cases be so indulgent as to 
 
 ty. (See 46, note. Smith v. Axtell et at, Saxton's Ch. Rep. New 
 Jersey, 497 — 8, et seq.A^A.) But the same strictness of pleading and 
 proof does not obtain in equity as at law, especially where defenda^it 
 is not surprised. (See p. 45, note, infra : Hatcher v. Hatcher.) 
 
 So under the general prayer, though a prayer for specific relief be 
 added, as is usual, yet relief inconsistant with the relief specially 
 prayed, if consistent with the case and proofs may be granted, provided 
 the defendant be not surprised or prejudiced. And so the constitution- 
 ality of legislative acts may be brought in question, and relief granted, 
 under the general prayer, if the bill be properly framed for such pur- 
 pose. (Smith V. The Trenton Delaware Falls Co. ,3 Green's Ch. Rep. 
 New Jersey, 510, 511, 605.) [Wilkin v. Wi7/ctn, 1 J. C. Rep. 111. 
 Cook V. Mancius, 6 lb. .89 ; Allen v. Coffman, 1 Bibb. 459 ; and see 
 Sheppard's Ex'rs v. Starke, 3 Munf. 29 ; and note to 1 Munf. 564 j 
 Bailey v. Burton, 8 Wendell's Rep. 339.] 
 
 Bat when the general prayer and for further relief is in the coryunc- 
 tiw, for example : " that the assignment may be declared void, and 
 complainants be paid out of the assigned property, and for further re- 
 lief as the nature of the case requires." Any thing in addition to the 
 specific relief prayed, consistent with it and warranted by the case 
 made, may be decreed ; but not any relief inconsistent with the specific 
 relief prayed for can be had. To obtain other relief, which, though in- 
 consistent with the specific relief prayed, would be justified by the 
 equity of the case made, the prayer should be in the disjunctive, or, 
 thus : " and that your orator may have such additional relief, or such 
 other or further relief as the equity of the case may require, and this 
 court may adjudge proper." [The leading case on this technical 
 point was Colton v. Ross-, 2 Paige's Ch. Rep. 396 — 8 ; sanctioned and 
 followed by cases in 2 Edw. V. C. R. 201. 281. Dowdall v. Lenoxy 
 Pleasants v. Glasscock, 1 Smedes & Marshall's C. Rep. Mississippi} 
 24, 25. 18. Foster v. Cooke, 1 Hawk. Rep. 509. 
 
 [Where three kinds of relief are prayed for in the bill, and the com- 
 plainant is entitled to one of them, the defendant cannot demur. Wes- 
 tern Ins. Co. of Buffalo v. Eagle Fire Ins. Co., 1 Paige's C. Rep. 284. 
 
 It has been said, that the court will not grant relief which is without 
 the scope of the complainant's bill, and not prayed for specifically. 
 Jarmon's case, 3 Monroe's Rep. 119; S. P. Withers v. Thompson, lb. 
 333. But this observation, it is presumed, proves nothing : for no re- 
 lief can be granted beyond the scope of the bill, nor can the prayer go 
 further than such scope.] 
 
 The same technical distinction, in the form of the prayer, is applied 
 to the prayer for alternative relief. See ne.xt note.
 
 S. III.] SEVERAL KINDS OF 42 
 
 permit a bill framed for one purpose to answer 
 another, especially if the defendant may be sur- 
 prised or prejudiced. If, therefore, the plaintiff Bi^'ji'^^a do«. 
 doubts his title to the relief he wishes to pray, the 
 bill maybe framed with a double aspect ; that if the 
 court determines against him in one view of the 
 case, it may yet afford him assistance in another 
 (/«) (1). Upon an information by the attorney-ge- Prayer in an m- 
 neral on behalf of a charity, the court will give the *■ 
 
 (A) 2 Atk. 325 ; and see Perry v. Philips, 17 Ves. 173. 
 
 (1") Where a bill is filed against certain members of a club, for the Prayer for pay- 
 recovery of money belonging to the club, and it prays that the money ™„°* ',^ay*^. 
 may be paid to the plaintiff, " or otherwise as the court may direct ;" rect." 
 in such case, if it ought not to be paid to the plaintiff, the court will 
 take care that it is paid to the persons who ought to have the manage- 
 ment of it. Richardson v. Hastings, 7 Beav. 323. 
 
 If a bill prays relief contingently against one defendant, only in the Pray" for relief 
 event of the court not giving relief against another defendant, it is de- 
 murrable. Seddon v. Connell, 10 Sim. 79. 
 
 If a bill by the directors of an insurance company prays that a policy Want of offer to 
 
 may be delivered up to be cancelled, or that the compaay may other- miums. 
 
 wise be relieved therefrom in such manner as the court may think fit ; 
 
 this is a submission to the judgment of the court as to the terms on 
 
 which the relief is to be granted ; and therefore it is not necessary that 
 
 the plaintiffs should expressly offer to pay back the premiums received 
 
 on the policy. Barker v. Wallers, 8 Beav. 92. 
 
 Where a person conveys an estate, in trust, out of the rents, or by Want of offer to 
 "^ •' ■' rci^oem priorm- 
 
 a sale or mortgage thereof, to pay a debt, and afterwards mortgages it> cumbrance. 
 
 and the mortgagee files a bill, praying an execution of the trusts of the 
 
 prior deed, and payment of the prior debt in the first place, and then of 
 
 the mortgage debt due to himself; the bill is demurrable for want of an 
 
 offer to redeem the prior incumbrant^er, or to pay him any deficiency 
 
 there may be, in case the sum realized by the sale of the estate should 
 
 be less than the prior debt. Caie v. Foulks, 6 Law J. Ch. Rep. (N, S.) 
 
 206, M. R. 
 
 Where the bill is for specific execution of contract, providing only 
 for valuation of land, not for sale or payment of money : if the facta 
 justify prayer of any such relief, the bill should be framed with a double 
 aspect. For we have seen (p. 41, note,) that under tlie general 
 prayer, the court gives such relief only as the case stated and proofs 
 sustaining it justify. (Holison v. M' Arthur, 16 Peters, 182. 195. 
 
 But where vendor of goods recovered judgment against vendee, be-
 
 43 FRAME AND END OF THE [ChAP. I. 
 
 proper directions as to the charity, without regard- 
 ing the propriety or impropriety of the prayer of the 
 information (i). 
 ^^Mtiee'^^^'^^ ^^' persons interested in the subject of the suit 
 ought generally to be parties (k) (1), if within the 
 
 (t) Att. Gen. v. Jeanes, 1 Atk. (A) This proposition, although ua- 
 
 355 ; 1 Ves. 43. 72. 418 ; Att. Gen. doubtedly correct in relation to suits 
 
 V. Breton, 2 Ves. 426, 427 j 11 Ves. for relief, Pawlet v. Bishop of Lon- 
 
 247. 367 ; 2 Jac. & W. 370 ; and it don, 2 Atk. 296 ; Poore v. Clarke, 
 
 seems that a similar observation would 2 Atk. 515; 1 Ves. Jr. 39; 7 Ves. 
 
 in some instances apply upon a bill 563 ; 1 Meriv. 262 ; 3 Meriv. 512, 
 
 filed on behalf of an infant, iS^a^fZ^on has been said, but lipon somewhat 
 
 v. Stapilton,! Atk. 2 ; and see £>«- doubtful authority, not to apply 
 
 rant V. Durant, 1 Cox, 58, in which, where discovery alone is sought. 
 
 on reference to the record, it appears Sangosa v. E. I. Camp. 1 Eq. Ca. 
 
 that the daughter was an infant. Reg, Ab. 170. 
 Lib. 1783, p. 192. 
 
 fore he has notice of a fraud in the purchase, and on return of execu- 
 tion unsatisfied, files a judgment creditor's bill under the law and prac- 
 tice of the State of New-York, he cannot therein pursue the goods or 
 its proceeds in the hands of a third person, on ground that the sale was 
 fraudulent and void. Nor is it the proper subject of a bill with a 
 double aspect. Lloyd v. Brewster et al, 4 Paige's Rep. 540 — 1. 537. 
 
 A proper case for a bill with a double aspect is, where the complain- 
 ant is in doubt whether he is entitled to one kind of relief or another, 
 upon the facts of his case as stated in his bill. He may then frame his 
 prayer in the alternative ; so as if the court decide that one kind of 
 relief is not proper, he may still be entitled to obtain any other relief 
 to which he is entitled under the other part of the alternative prayer. 
 (Ibid. See also, CoUonv. Ross, 2 Id. 396—8 ; 1 Johns. Ch. Rep. Ill ; 
 14 Johns. Rep. 627 ; 1 Id. 529.) [Foster v. Cooke, 1 Hawks. Rep. 509.] 
 But his prayer concluding for general relief, should be in the di^^junc- 
 tive, or (Ibid, and mite, p. 41, note.) 
 
 So where complainant is entitled to some kind of relief, on the gene- 
 ral facts stated in his bill, if the nature of the relief he is entitled to 
 depends from the existence or non-existence of a particular fact or cir- 
 cumstance which is not within his knowledge, he may allege his igno- 
 rance of such fact, and call for a discovery thereof. And in such case 
 he may also frame his prayer in the alternative, so as to obtain the 
 proper relief according as the fact may appear at the hearing of the 
 cause. (Lloyd v. Brewster et al., 4 Paige's Rep. 540-1. 537 ) 
 
 (1) See the general rule more fully stated and illustrated, p. 190. 
 Note on Parties, p. 397 ; and p. 34, note.
 
 S. III.] SEVERAL KINDS OF BILLS. 43 
 
 jurisdiction of the court (Z) (1). Who are the ne- [40] 
 cessary parties to a suit will be considered in the 
 next chapter, in treating of demurrers (2) ; but if 
 any necessary parties are omitted, or unnecessary 
 parties are inserted, the court, upon application, will 
 in general permit the proper alterations to be made. 
 The cases in which this permission is usually 
 granted, and the terms upon which it may be ob- 
 tained, will be more particularly the subject of con- 
 sideration in th^ fourth chapter. 
 ^ It is the practice to insert in a bill a general ch^gl of^com* 
 
 , , , . -, . . 1-1 biuation. 
 
 charge, tliat the parties named m it combined to- 
 gether, and with several other persons unknown to 
 the plaintiff, whose names, when discovered, the 
 plaintiff prays he may be at liberty to insert in the ^^ 
 
 bill. This practice is said to have arisen from an 
 idea that without such a charge parties could not 
 be added to the bill by amendment ; and in some 
 cases perhaps the charge has been inserted with a 
 view to give the court jurisdiction (3). It has been 
 
 (I) As to mode of framing the bill, Wilki7)Son v. Beal, 4 Madd. 408. 
 ■where a defendant is out of the ju- But see ante, p. 32, note, 
 risdiction, see 1 Sch. &. Lefr. 240 ; 
 
 (1) Ante, p. 33, 34, and note post, p. 190. 399. 
 
 (2) Page 177, et seq., 190, ei seq. 
 
 (3J [Barton, in his " Suit in Equity," thus remarks upon this sen- 
 tence : " It becomesmetobow to that gentleman's" (Lord Redesdale's) 
 " more extensive practical knowledge ; but I confess myself unable to 
 *' apprehend what species of cases it can be to which he alludes. All 
 " cases of confederacy and combination, considered simply as such, ap- 
 "pcar to be equally cognizable in a court of law ; and it is extremely 
 "evident that a mere allogiition of confederacy or combination in a 
 " bill, without other equitable matter to support it, could never autlior- 
 " ize a court of equity to exercise its extraordinary jurisdiction. And 
 " in the case of a peer (which further rebuts the idea of its being re-
 
 44 FRAME AND END OF THE [ChAP. I. 
 
 probably for this reason generally considered, that 
 a defendant demurring to a bill comprising persons 
 whose interests are so distinct that they ought not 
 to be made parties to the same bill, ought to answer 
 the bill so far as to deny the charge of combina- 
 tion. The denial of combination usually inserted 
 as words of course at the close of an answer, is a 
 [411 denial of unlawful combination ; and it has been 
 determined that a general charge of combination 
 need not be answered (in). An answer to a charge 
 of unlawful combination cannot be compelled ; and 
 a charge of lawful combination ought to be speci- 
 fic to render it material (1). For where persons 
 have a common right tbey may join together in a 
 peaceable manner to defend that right : and though 
 some of them only may be sued, the rest may 
 contribute to the defence, at their common charge 
 (n) : and if on the ground of such a combination 
 the jurisdiction of a court of equity is attempted to 
 be sustained, where the jurisdiction is properly at 
 the common law, the combination ought to be spe- 
 cially charged, that it may appear to warrant the 
 assumption of jurisdiction by a court of equity. 
 From whatever cause the practice of charging com- 
 bination has arisen, it is still adhered to, except in 
 
 45 the case of a peer, who was never charged with 
 
 (m) See Oliver v. Haywood, 1 (n) See Lord Howard v. Bell, 
 Anstr. Exch. Rep. 82. Hob. 91. 
 
 " quisite to give jurisdiction) the charge of combination is omitted." — 
 P. 33. 
 
 [The charge of combination is often omitted in amicable suits. Wy- 
 att's P. R. 63.] 
 
 (1) [Where a particular combination is charged, a particular answer 
 must be given to it. Barii. 263.]
 
 S. III.] SEVERAL KINDS OF BILLS. 45 
 
 combining with others to deprive the plaintiff of 
 his right, either from respect to the peerage, or 
 perhaps from apprehension that such a charge 
 might be construed a breach of privilege (1). 
 
 The riffhts of the several parties, the iniurv com- Necessary con- 
 plained or, and every other necessary circumstance, 
 as time, place, manner, or other incidents, ought to 
 be plainly yet succinctly alleijed. Whatever is Mode of aiiega- 
 essential to the rights of the plaintiff, and is neces- 
 sarily within his knowledge, ought to be alleged 
 positively (n), and with precision (o) (2) ; but the [42] 
 
 (ra) It has been determined, upon 3 Ves. 343 ; Mayor of London v. 
 
 demurrer, that, it is not a sufficient Levy, 8 Ves. 398; Carew \. John- 
 
 allegation of fact in a bill, to state ston, 2 Sch. & Lefr. 280 ; Albretcht 
 
 that the plaintiff is so informed. Lord v. Sussman, 2 Ves. & Bea. 323; 
 
 Uxbridge v. Staveland, 1 Ves. 56. [Harding v. Hardy, 11 Wheat. 103 ; 
 
 (0) See E. I. Comp. v. Henchman,' Newkirk v. Willett, 2 J. C. 413, S. 
 1 Ves. Jr. 287 ; Cressett v. Mytton, C. 2 C.C. E. 296.] 
 
 3 Bro. C. C. 481; Ryves v. Ryves, 
 
 (1) It is wholly unnecessary, and it is therefore the practice of some 
 draftsmen to omit it. See page 50, infra. 
 
 (2) Ttie essential statements constitutintr the case for equitable re- Necessary alle- 
 lief, have their foundation in what is denominated the stating pari, in chargeV^ 
 the formal division of the bill ; (49, infra,) which is to sustain also the 
 
 charging part, (p. 50,) and both to justify the Interrogatory part and 
 prayer; (p. 51 — 6,) each being consecutively dependant. Neverthe- 
 less, if the material facts are specifically averred, there appears no 
 positive rule that they must be in the stating part, and formally precede 
 the charging part. They will naturally, however, fall into the former 
 part. See authorities, p. 49, note. Story's Eq. PI. } 32 a. (4th ed.,) 
 and n. (1). But see Id. ^ 32, 33. 36, and n. (3). 
 
 [The complainant's equity must appear in the stating part of the 
 bill. Flint v. Rives, 3 Ves. Jr. 343 ; Norburyv. Meade, 3 Bligh. 211 ; 
 Macnamara v. Sweeiman, 1 Hogan, 29. The substance of a. bill must 
 contain ground for relief; and there must be equity in the case, when 
 fully stated and correctly applied to the proper parties, sufficient to 
 warrant a decree. Lyon v. Tallmadge, 1 J. C. R. 184 ; and see Shep- 
 herd v. Shepherd, 6 Day's Rep. 37 ; and Harding v. Hardy, 11 Wheat. 
 103 ; Hagthorp v. Hoolx, 1 Gill & Johns. 270.] 
 
 Every bill must contain sufficient matters of fact, per se, to maintain
 
 46 FRAME AND END OF THE [ChaP. I. 
 
 claims of the defendant may be stated in general 
 
 the case, so as the same may be put in issue by the answer, and estab- 
 lisiied by the proof?. Tiie proofs must be according to the allegations 
 of the parties ; and if the proofs go to matters not within the allega- 
 tions, the court cannot judicially act upon them as a ground for its de- 
 cision : for the pleadings do not put them in contestation. The allegata 
 and probata must reciprocally meet to conform to each other. (The 
 court, per Story, Justice : Harrison et ah v. Nixon, 9 Peters, 502, [503.} 
 483. Boone v. Chiles, 10 Id. 177.) 
 
 But the bill is not only a pleading for the purpose of bringing before 
 the court and putting in issue the material allegations and charges 
 upon which the complainant's right to relief rests, as in a declaration 
 in a suit at law ; but it is, also, in most cases, an examination of the 
 defendant upon oath, for the purpose of obtaining evidence to establish 
 the complainant's case, or to counter-prove or destroy the defence which 
 may be set up by such defendant in his answer. The complainant 
 may therefore state any matter of evidence in the bill or any collateral 
 fact, the admission of which by the defendant may be material in es- 
 tablishing the general allegations of the bill as a pleading, or in as- 
 certaining or determining the nature and extent, or the kind of relief 
 to which the complainant may be entitled, consistently with the case 
 made by the bill ; or which may legally influence the court in deter- 
 mining the question of costs. {Hawley et al. v. Wolverton, 5 Paige's 
 Rep. 523, 522. 3 Id. 606.) 
 
 [So far as the bill acts the part of an examination, it must state all 
 such matters of inducement, and such collateral circumstances as may 
 tend to extract a discovery, or which may raise a presumption of the 
 truth of the principal statement, even if denied by the defendant. 
 Lube, 241. If it appears, upon the complainant's own case, that he is 
 not entitled to the relief prayed, the court will not assist him. Stanley 
 V. Robinson, 1 Russ. & M. 527.J 
 
 It should be framed to meet the case. The cause must be ultimately 
 decided secundum allegata et probata. Proof is not enough without a 
 suitable allegation to allow its introduction, as allegation would not be 
 enough without proof. (Barque Chusan, 2 Story's Rep. 469. 456.) 
 Thus, where the bill set up title under a will, hut relied on title under 
 codicils not alluded to : the bill, it has been held, was fatally defective. 
 {Langdon v. Godard, 2 Story's Rep. 267.) True, the allegata and pro- 
 bata must meet with reasonable certainty, and it may be as important 
 that this rule be adhered to substantially as in a court of law : accord- 
 ingly where complainant set out an agreement in hccc verba, without 
 alleging a loss, and introduced parol evidence of the contents and a 
 purported copy of the original before the Master, the rule was held to
 
 S. III.] SEVERAL KINDS OF BILLS. 46 
 
 terms ; and if a matter essential to the determina- 
 
 apply ; but nevertheless, the court would not reject the testimony and 
 turn the party out of court, but would permit amendment of pleadings 
 if necessary, especially as it was understood that the object of the 
 parties was to get at the merits; and as " even if the proof were ad- 
 missible," the copy could not be introduced as secondary evidence, 
 without first showing the loss of the original, which was not done, the 
 court recommended the parties to consent to take further testimony as 
 to the loss. (Smith, AdftCx, v. AxLell el al., Saxton C. Rep. New 
 Jersey, 497 — 8, el seq. 494.) The true principle for courts of equity 
 should be that which secures specific relief under a prayer for general 
 relief, provided the defcndanl is not surprised or prejudiced, (see p. 41, 
 note, p. 42.) The same strictness of pleading and proof does not ob- 
 tain in equity as at law. On bills containing often a variety of com- 
 plicated detail, it happens almost daily, that a case is made out differ- 
 ent in some degree from that stated. The only rule which can be laid 
 down is, that the court will see that defendant is not surprised by a 
 case which he could not be prepared to meet. In general, when evi- 
 dence is introduced to make out a different case from that stated, it 
 should be objected to, if not at the moment when offered, in the pro- 
 gress of the cause ; otherwise it will be deemed waived, and the court 
 will proceed to give relief, if t!ie evidence makes a case for relief. 
 {Hatcher el al. v. Hatcher el al., 1 McMuUan's Eq. Cas. South Carolina, 
 317. 311. And see also, Bank of the U. S. v. Beverly el al., 1 Howard's 
 Rep. 151.) 
 
 [By the case of Edwards v. Masspy,\ Hawks' North Carolina Re- 
 ports, 359, it would appear, that, although a bill which is deficient in 
 matter,, cannot be aided by the defendant's answer, or by proofs in the 
 cause, yet when sufficient matter is stated, but insufficiently verified, 
 the want of sufficient verification may be suj)plied by proofs or admis- 
 sions. The title to the assistance of a court must be exposed by the 
 pleadings. But the style and character of pleading in equity, lias al- 
 ways been of a more liberal cast than that of other courts; as 
 mispleading in matter of form there has never been held to prejudice 
 -a party, provided the case made is right in substance and supported by 
 .proper evidence. Williamson v. Carnan, 1 Gill &. Johns. (Maryland) 
 Rep. 184.] 
 
 So it seems the allegations and admissions which are a species of 
 proof, must agree. Tlie bill must lay the foundation for any specific 
 relief. Thus, where the answer is broader than the a!leg:itions in the 
 bill, and although such parts of the answer as are not responsive to the 
 bill, are not evidence for.the defendant ; yet where counsel on both 
 .sides have considered the facts disclosed as beloni^ing to the case, and 
 
 5
 
 47 FRAME AND END OF THE [ChAP. I- 
 
 tion of the plaintiff's claims is charged to rest 
 
 if the facts in the answer not responsive to the bill, are relied on by- 
 complainant's counsel as admissioiis by the defendant; he is entitled 
 thus far, to their full benefit. 
 
 But no admissions in an answer can under any circumstances, lay 
 the foundation for relief, under any specific head of equity, unless it be 
 substantially set forth in the bill. (Jackson v. Ashion, 11 Peters, 248, 
 229.) Nor can complainant make a new case or departure from his 
 allegations by special replication. He should amend his bill. (7 Id. 
 274. 252.) 
 
 The allegations need not set out all the facts in detail, which are to 
 be proved ; but if they do not, they must contain allegations broad 
 enough to cover any evidence offered before it be admissible. After 
 that, confessions or declarations, or documents, or cumulative facts are 
 admissible to support any general allegations to which they apply, and 
 Buch general allegations are alone often sufficient to render the intro- 
 duction of such evidence proper. (Nesmilh v. Caheri, 1 Woodbury & 
 Minot Rep. 44. 34.) So in Smith v. Burnham, 2 Sumner's Rep. 614,. 
 et seq., 622, et seq., 612, it is held that defendant's confessions, conver- 
 sations and admissions need not be expressly charged, to entitle plain- 
 tiff to use them in proof of facts charged and in issue. But see Aus- 
 tinv. Chambers, a.ndEarIe v. Pickin, in the notes of the English edition,. 
 added to the present note. 
 
 [It has been said, that facts charged in a bill, and which are within 
 * the defendant's knowledge, are to be taken as admitted if not denied. 
 
 Mitchell V. Maupiny 3 Monroe's (Kentucky) Rep. 185 ; Ward v. Lewis, 
 4 Pickering's Rep. 218; Gil/sonv. Cre'.iore, 5 lb. 151. This would 
 seem not to, be the practice in the State of New-York. Brockway v. 
 Copp, 3 Paige's Ch. Rep. 539. The complainant must establish them 
 by evidence. lb. And the practice in Virginia is the same as in New- 
 York. Coleman v. Lynes's Ex'r, 4 Randolph's Rep. 454.] But see- 
 Dyelt and Wife v. Norlh American Coal Co., 20 Wend. Rep; in Err. 
 670 — 5. An'e, p. 3), note, and p. 10, note. 
 
 So it is said, that in general a bill is not evidence against the plaintiff,. 
 the statements being attributed to the counsel, not to the party. But 
 Chancellor Johnston (South Carolina) said he was in the habit of ruling 
 that any paper S7gnf£^ by- a party, much more one sioornta by him, 
 is good as his statement. (Coojer v. Day in Err. 1 Richardson's Eq. 
 Rep. 34. 26. And see ante, p. 10, note, p. 30, note.) 
 
 The bill should set forth the plaintitf 's equitable interest, and defen- 
 dant's equitable liability, with so much clearness, certainty and par- 
 ticularity, as to inform the defendant of what he is to meet, and upon 
 what facts as alleged he may take, issue. Though th6 bill should be 
 full and unambiguous as to every material fact, yet it must avoid.
 
 S. III.] SEVJERIL KINDS OF BILLS. 47 
 
 in the knewledge of the defendant, or must of 
 
 needless prolixity and repetition, impertinent, scamialous and niultifa- 
 rious matter; as to all which, see pp. 49, 50, 57 n., 58 n., 208. These 
 and the further requisites of a j;ood bill, as decided on demurrer, will 
 appear under that liead in the text, p. j31, et seq. Their appropriate 
 place mig-ht have been under the head of bills, and such seems to have 
 been the view of Mr. Story, who has transferred them accordingly in 
 his Treatise on Equity Pleading. 
 
 It may be here remarked, that every claim to equitable relief, must 
 rest upon some existing right, not only to the thing demanded, but to 
 the immediate institution of a suit to enforce it: a suit in chancery 
 be^jTg the equitaWo demand of one's right. This constitutes the plain- 
 tiff's equitable interest, or title to sue for relief. The existence of 
 such right, interest or title, presupposes a relationship or privity on 
 the part of the person sued — which must also be shown — for if defen- 
 dant has no interest, the plaintiff at least as to him, has no right or 
 title. 
 
 In setting forth such right and title, the governing principle is, that 
 so much certainty must pervade the statement as to prevent the de- 
 fendant from being taken by surprise. He must be permitted to know 
 explicitly what the co.nplaint against him is — and not be compelled to 
 guess it, under the form of a general charge. There must be such a* 
 specitication as will enable him to meet the alleged fact by a direct 
 issue, and thereby countervail the general charge, whether it be of 
 fraud, mistake, accident or trust. But after alleging such specific act 
 or fact, the plaintiff need not set forth minor circumstances, merely 
 going to make out or corroborate such specification. Some English 
 cases have gone the length, however, of requirinir minute particulars 
 time, place and wiinesses' names; where plaintiff's claim rests on de- 
 fendant's confession or declaraiioiis. Bat this was under the peculiar 
 secrecy of the old English mode of examination by interrogatories- 
 which before publication, the defendant had no opportunity of coun- 
 teracting, and hence it accorded with the principle of preventing sur- 
 prise as stated. But the doctrine nor the reason does not prevail in 
 j^his country. Here the received jieneral rule is, that matters consti- 
 tuting the evidence of the specific fact, need not be stated, though it 
 maybe sometimes important* to elicit an examination of defendant on 
 oath, to set out-and interrogate him on circumstantial points essential 
 to sustain the main fact. 
 
 The statement of the facts, if necesparily known by plaintiff, must, 
 as a {leneral rule, be p'siiive and prtcise. But in New- York, under 
 the old rhancery rogiuK^, ficts mijj;ht be set forth positively or on in- 
 formation or belief, and the jurat corresponded. But now by the Code 
 of Procedure, (and see infra, 49, note,) they are to be stated in con- 
 cise, ordinary and plainly intelligible language, and sworn to en belief
 
 47 
 
 FRAME AND END OF THE [ClIAP. I. 
 
 Allegation to 
 Bhow that the 
 statute of limi- 
 tations had not 
 run against an 
 equity of re- 
 demptiou. 
 
 Statement or 
 charge in a bill 
 to obtain an in- 
 terest accruing 
 on an intestacy. 
 
 Allegation of a 
 title by descent. 
 
 Allegation that 
 a defendant is a 
 representative 
 of a firm. 
 
 Allegation as to 
 » foreign instru- 
 ment being v oid. 
 
 Statement or 
 charge of ad- 
 missions, by a 
 defendant. 
 
 necessity be witliin his knowledge, and is conse- 
 
 By that Code, 5 134. neither presumptions of law, nor matters of which 
 judicial notice is taken, need be stated in a pleading. But this enact- 
 ment is merely declaratory of the pre-existing law on the subject. 
 (See Story's Eq. PI. c. 2, h 24. Gresly, Greenleaf and Phillips, on Evid.) 
 
 I. With respect to a tvant of svjficienl farlicularity — 
 
 Where a mortgage debt has been due for more than twenty years, 
 a general allegation that all interest has been paid, is not sufficient to 
 support a proof that interest was paid from time to time, during the 
 twenty years, so as to prevent tlie statute of limitations from opera- 
 ting ; for, consistently with the trutli of this allegation, the interest 
 might have been paid in a lump. Gregson v. Hindley, 10 Jur. 383. — 
 V. C. E. 
 
 Where the bill is brought after great lapse of time, it. should state 
 the reasons why it was not brought before, so as to repel the presump- 
 tion of latches or improper delay. If the case turns upon fraud, mis- 
 take, concealment or misrepresentation, the charges thereof must be 
 reasonable, definite and certain as to time, occasion and subject matter, 
 and especially when, how and what the discovery of the fraud, &c. la, 
 so as the court may see, if by ordinary diligence the discovery might 
 have been made before, for if so, the bill lies not on account of latches. 
 (^Stearns v. Page, 1 Story's Rep. 214—215. 204.) 
 
 If a bill prays that the trustee of leasehold property may be declared 
 to be a trustee for the plaintiff, as claiming through a person to whom 
 it accrued by an intestacy, the bill must state or charge that the intes. 
 tate did not dispose of or incumber the property, and that it was not 
 applied in or required for the payment of his debts. See Stephens v. 
 Frost, 2 Y. & C. Eq. Ex. 297. 
 
 In stating a title by descent in the plaintiff, it is necessary that all 
 the links which constitute the chain of descent should be stated. Baker 
 V. Harwood, 7 Sim. 373. 
 
 An allegation that a defendant is the representative of a firm is not 
 sufficient to admit proof of circumstances which might have made that 
 party not only a representative, but actually the party carrying'on th6 
 business. Schneider v. Lizardi, l5Law J. (N. S.) 435, M. R. 
 
 Where a foreign instrument is intended to operate according to a 
 law which is not known in England, and which, as foreign law, is to be 
 proved as a fact to the cause, an allegation. that such instrument is 
 void is too vague. The Duke of Brunswick v. The King of Hanover, 
 6 Beav. 59. 
 
 Where a plaintiff means to rely on an adm,issic)n made to a person 
 whom he intends to examine as a witness, it is necessary that he should 
 state or charge, not merely that such an admission was made, but that 
 it was made to that person, in order to give the defendant an oppor- 
 tunity of cross-examining such person, or of otherwise meeting the
 
 S. III.] SEVERAL KINDS OF BILLS. 48 
 
 quently the subject of a part of the discovery- 
 case made upon the evidence. Austin v. Chambers, 6 CI. & Fin. 38.. 
 And where a plaintiff proceeds against a defer dant upon the ground of 
 admissions made by the defendant of his having had notice, he ought 
 to mention in the bill the date of such admissions, and the names of 
 the persons to whom they were made, in order to give the defendant 
 an opportunity of meeting the case. Earle v. Pickhi, 1 Russ. & 
 M. 547. 
 
 Letters proved in the cause, but not referred to in the pleadings, are Letters and con- 
 inadmissible in evidence, even on the question of costs. IVhitleyv. put in issue. 
 Martin, 3 Beav. 226. 
 
 Conversations not put in issue cannot be used in evidence. But 
 
 when communications are stated in the answer, the plaintiff' has a 
 
 right to show the real nature of those communications, although th?y 
 
 are not referred to in the bill. Graham v. Oliv r, 3 Beav. 124. But 
 
 see Hvghes v. Garner, 2 Y. «fe C. Eq. Ex. 328. 
 
 Where a bill seeks to restrain a defendant from prosecuting an ac- Aiie^tion of ac- 
 quiescence in a 
 tion for a damage caused by a nuisance, and, as a ground for such re- nuisance. 
 
 lief, it alleges that he acquiesced in and encouraged the erection caus- 
 ing the nuisance, such an allegation is sufficient to let in evidence of 
 Buch particular acts of encouragement as would amount to an equity 
 against the defendant ; and a demurrer for want of equity, on account 
 of the generality of the allegation, will not lie, although it may turn 
 out that there is not evidence of such an encouragement as will con. 
 Btitute an equity. Williams v. Earl of Jersey, Cr. & Phil. 9L 
 
 Where a bill charges generally that there are errors in an account, 
 II. . . r . . • .1 1 • Chareing error* 
 
 and that they appear in a certam report oi an accountant m the plain, generally, and 
 
 tiff's possession, which the bill calls upon the defendant to inspect, acco"n"t^in° th^ 
 but it does not specificallv point out the errors ; neitlier that report nor plaintiff's poa- 
 
 1 J 1 1 L L session. 
 
 evidence of the errors pointed out in it can be recorded, although the 
 
 report is stated, and the alleged errors in the account are explained in 
 
 a cross bill by the defendant. Shejiherd v. Morris, 4 Beav. 252. 
 
 Where a bill impeaching a voluntary settlement on the ground of ^ , 
 _, r ti J , r 1. Reference to & 
 
 the indebtment of the settlor, does not state the particulars of the schedule in tlie 
 
 debts, but refers to a schedule' of debts in the Insolvent Debtors' Court, 
 
 in aid of the suit; the existence of the debts is not sufficiently put in 
 
 issue, as against an infant or a married woman, but an inquiry will be 
 
 directed on the point. Toumsend v. Westacott, 2 BL»av. 340. 
 
 W. ,\Vith respect to the mod: of putting a specific allegation — 
 
 A statement that " the defendant alleges, and the plaintiff believe Allegation of be- 
 the fact to be," is not a sufficient allegation of a material fact. Egre- lief. 
 mont v. Coivell, 5 Beav. 620. 
 
 A charjje that the contrary of a pretence is the truth, is equivalent charge of the 
 
 . r , ■ r . r t 1 , wT ■ Contrary ol a 
 
 to an allegation of the negative of the fact pretended, {ilarrison v. pretence. 
 Willshire, 4 Law J. Ch. Rep. (N. S.) 260. (Lord Commissioner Shad-
 
 48 FRAME AND END OF THE [ChAP. I. 
 
 sought by the bill, a precise allegation is not 
 required (^;) (1). 
 
 {p) See Baring v. Nash, 1 Ves. & Bea. 551. (See p. 42, note,) 4 Paige's 
 Rep. 540— 1.) 
 
 weH.) So that a bill, by charging the contrary of a pretence that a 
 right has not been established at law, sufficiently avers the establish- 
 ment of the right at law. The Mayor, Aldermen, and Burgesses of 
 Rochester v. Lee, 15 Law J. Ch. Rep. (N. S.) 97. 
 Stating a tit'e to 11" a bill insists that a will was a good execution of a power at law, 
 be either at law ^^jjj^ jf j^qj^ j^ equity ; and then prays that the defect, if any, may be 
 '"^ ' supplied against the defendant, the bill is demurrable: for the court 
 
 cannot act upon an hypothetical bill, desiring relief either at law or in 
 e«f»iity, according to the result of the argument. Edwards v. Edwards, 
 Jac. 335. 
 
 III. With respect to the rule of construction — 
 
 Allegations are to be taken most strongly against the party making 
 
 them. Benson v. Hadfield, 5 Beav. 546. 
 
 Allegation of a And hence, in order to charge a party with a breach of trust, it is 
 
 breach of trust, ^jg^ggg^^y ^jjj^j jj^g g^se made against him by the bill should be siich 
 
 as to be incapable of being construed otherwise than as a case of a 
 
 breach of trust Attorney General v. The Mayor of Norivich, 2 My. 
 
 & C. 406. 
 
 Alternative alle- Where a party makes alternative allegations, the opposite party is 
 
 gations. entitled to adopt whichever of the alternative allegations he pleases. 
 
 Williams v. Flight, 5 Beav. 41. 
 Aileeatiop thata Where a bill of discovery is filed In aid of an action of covenant 
 
 lessor was" seis- ^hjcfi could not be sustained unless the person granting the lease con- 
 ed or otherwise "^ i i • -i 
 •well entitled." taining the covenant had the legal estate, and the bill states that such 
 
 person was " seised or otherwise well entitled," and there are no other 
 
 expressions showing that he had the legal estate, the defendant has a 
 
 right to take the statement most against the pleader, and as meaning 
 
 that tho, lessor was " otherwi -e entitled," or had an equitable title only. 
 
 Balls V. Musgrare, 3 Beav. 284. * 
 
 Construction of Allliougli it is a rule that an allegation is to be taken most strongly 
 
 oTword™*^'"^ asainst the pleader, yet where a word may per se be understood in two 
 
 'different senses with equal fairnes.-^, and if understood in the one sense 
 
 the bill would be demurrable, whereas if understood in the other sense» 
 
 the bill would be correctly framed, the former construction will be 
 
 adopted : as where a bill for tithes is filed by a lessee thereof and by 
 
 the vicar, and the bill states" that the vicar " demised" the tithes to the 
 
 lessee, and the vicar would be improperly made a co-plaLiitiff, if the 
 
 demise were by deed, but not if it were by parol. Foot v. Bessanl, 3 Y. 
 
 & C. Eq. Ex. 320. 
 
 (1) If a bill for relief is so vague that it does not state any certain
 
 S. III.] SEVERAL KINDS OF BILLS. 49 
 
 As .a bill must be sufficient in substance, so it 
 mustwliave convenient form {q). The form of an Pa-rta "f * ^iu. 
 original bill commonly used consists of nine parts ; 
 — (1). The first part is the address of the bill to Adareas. 
 the person holding the great seal, the terms of 
 which are always prescribed by the court upon 
 every change of the custody of the seal, or altera- 
 tion in the style of the person to whom it is com- jf^n^e, ^^3 ^g. 
 mitted (2). In the second place are contained the piZtlar "^ '''^ 
 
 iq) 9 Edw. IV. 41. Prac. Reg. 57 Wy. Ed. 
 
 case upon whith a. court of equity will grant relief, it will be demurra- pj^j demurrable 
 
 b!e for want of equitv? althoufjh the plaintiff alleges his inability to for vaguenea* 
 ■^ ° and uncertainty, 
 
 state circumstances more definitely, and prays a discovery. Wurmald 
 
 V. De Lisle, 3 Beav. 18. 
 
 Allegations that an heir was brought up in poverty and without edu- 
 cation, and kept in ignorance of his rights, and supplied with email 
 sums of money, are too vajue alienations of fraud to support a bill of 
 discovery. A bill so framed is designated a fishing bill. Munday v. 
 Knight, 3 Hare, 497. 
 
 (1) [This division of a bill into nine parts is considered by Lube as 
 "illogical and incorrect." He makes only four, tiius: 1. The circum- 
 stantial statement of the relation, including the inducement or introduc- 
 tory part. 2. The incidents which produce the grievance complained 
 of, including the requests made to the defendant, and his refusal. 3, 
 The statement of such collateral circumstances, if necessary, by way 
 of charge, as may compel the defendant to acknowledge the grievance, 
 or which -may anticipate and controvert his defence. 4. And lastly, 
 by reason of the foregoing complaint, and of the want of adequate 
 remedy at common law, it concludes with a petition for the subpoena, 
 to the end that the defendant may answer the premises and the court 
 decree relief. — P. 242,] 
 
 (2) Ttie forms of thij commencement as well as every other parts 
 of bills may be seen in Willis's Eijuity Pleidings, Van Hey Ihuy teen's 
 Equity Draftsman, Barton's Suits in Equity, Barbour^s and other 
 American Books of Equity Practice. Story, in referring to the forms 
 of address, (Eq. PI. } 25, n. 2,) is not correct in saying that in New- 
 York the address would be " To the Honorable J. K." &c. By express 
 rules of the court of chancery, it would have simply been " To the 
 Chancellor of the State of New-York," without name or addition. 
 But since the abolition of that court, no address appears necessary'. 
 On the amalgamation in that state of legal and equitable forms of
 
 49 FRAME AND END OF THE [ClIAP. T. 
 
 names of the parties complainants, and their de- 
 
 . — ■ — ' — -, — K 
 
 remedy, pleadings are reduced to complaint, demurrer, answer and. 
 replication. (Code of Procedure, { 132.) The complaint is to con- 
 tain : 1. " The title of the cause, speci/ying the name of the court in 
 " which the action is brought, the name of the county in which the 
 " plaintiff desires the trial to be had, and the names of the parties to 
 "the action, plaintiff" and defendant. 2. A statement of facts constitu- 
 "ting the cause of action, in ordinary and concise language, without 
 " repetition, and in such manner as to enable a person of common un- 
 " derstanding to know what is intended. 3. A demand of the relief, to 
 " which the plaintiff supposes himself entitled. If the recovery of 
 " money be demanded, the amount thereof shall be stated." Code of 
 Procedure, {120. 
 
 Under this sweeping reform in New- York, the necessity of adhering 
 to the ni7ie formal divisions of Mitford, or the /our of Lube, obviously 
 disappears. But the principles of pleading, both at law and in equity, 
 are in many instances intimately blended with the very foundation of 
 the right, the enforcement of which, and the redress of an invasion of 
 which, "is the very object of the complaint." "No rule of law by 
 which rights and wrongs are measured," say the Commissioners in 
 their report, (p. 146,) are touched " the change being only the removal 
 of old obstructions, in the way of enforcing the rights and redressing, 
 the wrongs." Nevertheless, in the determination of what is right and 
 wrong, or of equitable interests and liabilities, as well as for a concise 
 and plainly intelligible statement of facts, it may be conceived, that a 
 knowledge of the principles that have governed equity pleading, and 
 the substantial portions of many of its forms, would still be useful, if 
 not indispensable to the successful framing of the "complaint." Many 
 of those principles evolve a practical exposition of relative rights, and 
 matiy of the fonns point out with admirable precision, the b^st mode 
 of presenting those rights, and their invasion, to the judgment of the 
 proper tribunal. But mere formal outlines of a bill of complaint, 
 or of a petition, are demolished; and the structure reduced to the 
 simplicity of an ancient bill, (of which see a precedent note, p. 
 60, infra ;) combining but little more than a clear and concise state- 
 ment of facts. Even the charging part, which might have been an 
 important part, to anticipate the defendant's defence and put him to an 
 examination on oath, in respects of the facts charged, may now be 
 rendered perhaps entirely unnecessary, or be supplied by a special 
 replication to the answer, (Code of Procedure, c. 4, J 131 ;, heretofore 
 inadmissible, but by leave ; and by the power of either party to exam- 
 ine the other as a witness ; {Id. Tit. 12, c. 6, { 343, et seq.,) or any 
 other person interested in the event of the suit. (Id. c. 7, 5 351, &.c.)
 
 S. III.] SEVERAL KINDS OF BILLS. 49 
 
 scriptions (r) (1), in which their abode is particu- 
 larly required to be set forth, that the court, and 
 the parties defendants to the bill, may know where 
 to resort to compel obedience to any order or pro- [43] 
 cess of the court, and particularly for payment of 
 any costs which may be awarded against the plain- 
 tiffs, or to punish any improper conduct in the 
 course of the suit (2). The third part contains the stating part. 
 case of the plaintiffs (3), and is commonly called the 
 
 (r) It seems, however, that the the truth thereof, see Alhretcht v. 
 description, so given, of. a plaintiff, is Suss7nan, 2 Ves. & Bea. 323. 
 not considered to be an allegation of 
 
 The relief is granted as demanded, if no answer ; otherwise the 
 court will grant any relief, though different from that asked, consistent 
 with the case made by the plaintiff and embraced within the issue. 
 (Id. 5 231.) 
 
 (1) [See the different forms of introduction, names and descriptions 
 in Chapter I. of Willis's Equity Pleadings, and Equity Draftsman, 
 Chap. L 
 
 (2) By the ancient practice defendant might demur, or if the resi- 
 dence was untruly stated, plead. But the modern practice is to apply 
 for order for security for costs. But whether a demurrer lies, the court 
 expressed no opinion, though 1 Daniel Ch. Pr. 463, is cited as a recent 
 work of much merit, in favor of a demurrer. (Howe v. Harvey, 8 
 Paige's Rep. 73 — 75.) It seems that Lord Redesdale, in his first edi- 
 tion of this Treatise, said, a demurrer would hold for omitting to make 
 the proper description of the parties as to abode, &c., but having left 
 it out in after editions, it is inferred that he had " changed his opinion." 
 Story's Eq. PI. c. 2, J 26, n. 1, on authority of Montague's Eq. PI. 
 "If," says Story, " a special demurrer would not be proper, perhaps a 
 plea, in the nature of a plea in abatement, might be the proper mode 
 to enforce the objection." (lb.) In New-York, by the recent Code 
 of Procedure, no such description of the residence of parties, seems 
 to be required. See note, supra. 
 
 In the United States courts, where the jurisdiction depends on the 
 citizenship of the parties being of different states, the fact of the com- 
 plainant being a citizen of a certain state and the defendant of another, 
 must be alleged in the bill. See Story's Eq. PI. c. 2, { 26, and authori- 
 ties there cited. 
 
 (1) There is no rule that a fact on which the plaintiff's title to re-
 
 50 FRAME AND END OF THE [ChAP. I. 
 
 Charge of con- statlng-part of the bill (.s) (2). In the fourth place 
 is the general charge of confederacy against the 
 persons complained of, which has been already 
 mentioned as commonly inserted, though it seoms 
 
 charging-part. unuecessary. Fifthly, if the plaintiffs are aware 
 of a defence which may be made, and have any 
 matter to allege which may avoid it, the general 
 
 (s) See 11 V^s. 574. 
 
 Introduction of lief depends, if introduced by way of charge, is not as well pleaded 
 charging part, as if it were introduced in the shape of what is technically called a 
 statement, where sueh charge is a specific averment of the fact. 
 Houghton V. Reynolds, 2 Hare, 264 ; and see Harrison v. Wiltshire, 4 
 Law J. (N. S.) 260. and The Mayor of Rochester v. Lee, 15 Law Ch. 
 R. J. (N. S.) 97, supra, p. 47, n. and p. 45, note. 
 
 (1) It has been held that the rules of pleading require that every 
 mateiial averment tiiat is necessary to entitle the plaintiff to the relief 
 prayed for, must be contained in the staling pari of the bill ; that this 
 is a useful rule for the preservation of form and ordet in the pleadings ; 
 that this pirt of the bill mu^t contain the plaintiff's case and his title 
 to relief; and every necessary fact must be distinctly and expressly 
 averred, and not in' a loose and indeterminate manner, to be explained 
 by inference, or by reference toother parts of the bill, and that the 
 defendants are not bound to answer any averment not contained in the 
 stating part of the bill. Thus, where the plaintiff sought to hold the 
 purchaser of land accountable for the application of the purchase money, 
 and the stating part of the bill alleged that a deed of the land was 
 placed in" t'le hands of D. on the express trust and condition that he 
 should nut deliver it to the purchaser but upon payment of one-half 
 of the purchar^e money, which D. had contracted to pay over to the 
 plaintiff, and that the deed was delivered to D. the purchaser having 
 knowledge of the trust, but omitted to state whether the purchaser 
 did or <lid not pay to D. one-half of the money, the bill was hek) to be 
 deftctive, because if the purchaser did pay one-half of the money, he 
 was not bound to see to its application. (^Wright v. Dime et ah, 23 
 Piik. Rep. (Mass.) 59. 55.) 
 
 The foundation for subsequent parts of tlie bill should doubtless be 
 more properly laid in the stating part ; but that no substantive aver- 
 ment in any other part need be made or answered, is in conflict with 
 other adjudications. See English editor's note, p. 49. See charg- 
 ing part, note, infra. And ante p. 45, note.
 
 S. III.] SEVERAL KINDS OF BILLS. 50 
 
 charge of confederacy is usually followed by an al- 
 legation that the defendants pretend or set up the 
 matter of their defence, and by a charge of the 
 matter which may be used to avoid it. This is 
 commonly called the charging-part of the bill, and 
 is sometimes also used for the purpose of obtaining 
 a discovery of the nature of the defendant's case, 
 or to put in issue some matter which it is not for 
 the interest of the plaintiffs to admit : for which 
 purpose the charge of pretence of the defendant is 
 held to be sufficient (f). Thus if a bill is filed on 
 any equitable ground by an heir, who apprehends 
 his ajicestor has made a will, he may state his title 
 as heU* ; and alleging the will by way of pretence 
 of the defendant's claiming under it, make it a 
 part of the case without admitting it (1). The 
 
 (0 3 Atk. 626 ; 11 Ves. 575. See also Flint v. Field, 2 Atistr. 543. 
 
 (1) To examine defendant on oath for the purpose of discovery, 
 (which is the principal object of exceptions to an answer for insuffi- 
 ciency, where any material allegation, charge or interrogatory is not 
 fully answered,) the complainant may even anticipate the defence of 
 defendant and obtain a discovery of matters connected with such de- 
 fence, which are in no wise responsive to the main charges in the bill, 
 upon which the complainant's equity is supposed to rest. The proper 
 method of obtaining such discovery, however, is not by exceptions for 
 insufficiency founded upon the answer alone, but by framing the bill 
 in such a manner as to call for all the particulars of the defence, 
 which it is supposed the defendant will set up. This is effected byQ? 
 what is usually called the charging part of the bill, in which the an- 
 ticipated defence is stated as a pretence of the defendant, supported 
 by proper charges and interrogatories founded upon such alleged pre- 
 tence. In tliis way complainant is not only enabled to anticipate the 
 defence itself, by putting other matters in issue which will have the 
 effect to displace the (quity thereof, but he is also enabled to examine 
 the defendant on interrogatories in relation to all the particulars of 
 such defence. (Stafford v. Brown, 4 Paige's Rep. 90—1. 88.) The 
 charging part is as necessary to be answered as the stating part ; so 
 far as the charges are material to anticipate and defeat a defence
 
 50 FRAME AND END OF THE [ChAP. I. 
 
 Allegation of ju- sixtli part of tliG bill is intended to give jurisdiction 
 
 riediction. n i • i i i i 
 
 of the suit to the court by a general averment that 
 
 which may be set up, they may be considered in the nature of a special 
 replication. But complainant has the same right to defendant's an- 
 swer to the charging part of the bill, to prove the truth of his special 
 replication, as he has to answer to the stating part to prove the truth 
 of that. If he do not waive answer on oath, he makes defendant a 
 witness in favor of complainant against himself, and interrogates him 
 to every statement and charge in the bill. His answer, therefore^ 
 which is responsive to any such statement or charge in whatever part 
 of the bill it is contained, is evidence in his own favor, as well as in 
 favor of the complainant. (Smith v. Clark, A Paige's Rep. 373. 368.) 
 But if not responsive it is not evidence. (Stafford v. Broivn, Id. 91 ; 
 see on this point, ante. p. 10, note.) The charging part has been 
 thought by many to be mere form, and that they might put in any 
 thing by way of charge, even in a sworn bill. It is frequently, how- 
 ever, as material a part of the bill as the stating part, and the decision 
 frequently turns on the issue formed by the denial of some averment 
 in the charging part. It is therefore perjury for complainant to make 
 a false charge or averment in the charging part of a sworn bill,- as it 
 would to make a false statement in the stating part. (Smith v. Clark^ 
 supra.) 
 
 [See a precedent of such an allegation, (as the one suggested in 
 the text,) 1 Equity Dra'tsman, (2d edit.) 321. The charging part of 
 a bill, says Willis, p. 19, is often omitted. Until a comparatively 
 modern period, a bill contained little more than the stating part, with a 
 simple prayer, that the defendant might answer the matters contained 
 in it, and for relief; and it is certain that the late Lord Kenyon in the 
 bills he drew when at the bar, never put in the charging part ; which 
 does little more than unfold and enlarge the statement. See Partridge 
 V. Haycraft,\\ Ves. 574 — 5. 
 
 It may not be amiss to give here the form of an ancient bill. We 
 copy it from the proceedings of the Record Commissfon. It was filed 
 in the reign of Henry V., to compel a defendant to surrender a mes- 
 suage which was the inheritance of tlie plaintiff Katharine. The 
 reader will perceive in how small a compass the whole is contained ; 
 and yet how completely it takes in the equity of the case : 
 
 " To the reverend father in God, the Bishop of Winchester, Chancel- 
 
 " lor of England : 
 
 " Beseecheth humbly your poor orator, John Bell of Calis, soldier, 
 
 "and Katharine, his wife, that whereas William atte Woode, otherwise 
 
 " called William atte Doune of Rochester, father to the said Katha- 

 
 S. III.] SEVERAL KINDS OF BILLS. 50 
 
 the acts complained of are contrary to equity, and 
 tend to the injury of the complainants, and that they [44] 
 have no remedy or not a complete remedy, without 
 the assistance of the court ; but this averment must 
 be supported by the case shown in the bill, from 
 which it must be apparent that the court has ju- 51 
 
 risdiction (1). The bill having shown the title of ^^eri^^' ^ 
 the persons complaining to relief, and that the 
 court has the proper jurisdiction for that purpose, 
 in the seventh place prays, that the parties com- 
 plained of may answer all the matters contained 
 in the former part of the bill, not only according to 
 
 .. . -^ : 
 
 " rine, since dead, heretofore was seised in his demesne as of fee of 
 "one messu;ige with the apjiurtenances in Rochester, s^ituated in the 
 " churchyard there, the whicli, William, in the feast of St. Michael, in 
 " the twenty-second year of the reign of King Richard the Second, 
 " since the conquest, let to farm to one Simond Stelhard of Gillinghara, 
 •' the same messuage with the appurtenance for term of seven years 
 " then next ensuing, for a certain sum to him annually to be paid ; 
 " the which Simon witiiin the first two years was ousted by the execu- 
 " tors of the said William, because he would not attorn to them in the 
 " payment of the rent of the same messuage, the which messuage 
 " since ll)€n was several times alienated to divers persons, and now so 
 " it is, very gracious lord, that one Piers Savage, now occupier of the 
 " same messuage, for the which messuage he hath not paid more than 
 "one mark, hath oftentimes been required to deliver to the same John 
 " and Katharine, this same messuage as tlie heritage of the same 
 " Katiiarine, and he hath not delivered it to them nor yet will, but de- 
 " tains it in destruction of their poor estate and perpetual disherison of 
 "the same Katharine, if they should not obtain remedy by your gra- 
 " cious aid in this behalf, and the which John and Katharine are so 
 " poor, and the said John so ill, that they cannot pursue the common 
 "law. Please your very gracious lordship to consider the premises, 
 " and thereupon to grant a writ directed to the said Piers, to aj)pear, 
 " before you at a certain day upon a certain pain by you to be limited, 
 "for to answer of the matter aforesaid, and to do rigiit as good con- 
 " science demandoth it, and tiiis for love of God, and in work of 
 " ciiarity."J 
 
 (1) The remark already made as to the charge of combination 
 (note to pajre 45') is also applicable to the jurisdiction clause.
 
 51 FRAME AND END OF THE [ChAP. L 
 
 their positive knowledge of the facts stated, but al- 
 so according to their remembrance, to the informa- 
 tion they may have received, and the belief they 
 are unable to form on the subject (1). A princi- 
 pal end of an answer upon the oath of the defen- 
 dants, is to supply proof of the matters necessaiy 
 to support the case of the plaintiffs ; and it is there- 
 fore required of the defendants, either to admit or 
 deny all the facts set forth in the bill, with their at- 
 tending circumstances, or to deny having any 
 knowledge or information on the subject, or any 
 recollection of it, and also to declare themselves 
 
 SgSingp'aS: unable to form any belief concerning it (2). But 
 as experience has proved that the substance of the 
 matters stated and charged in a bill may fre- 
 quently be evaded by answering according to the 
 letter only, it has become a practice to add to the 
 general requisition that the defendants should an- 
 .swer the contents of the bill, a repetition, by way 
 of interrogatory, of the matters most essential to be 
 answered, adding to the inquiry after each fact an 
 
 52 inquiry of the several circumstances which may be 
 
 r451 attendant upon it, and variations to which it may 
 
 be subject, with a view to prevent evasion, and 
 
 compel a full answer (3). This is commonly 
 
 (1) The 19th. order of Aug. 1841, prescribes the form of this part 
 of the bill. See infra, page 52, note. 
 
 (2) Where the bill requires answer to pertinent interrogatories, ac- 
 cording to knowledge, information and belief, defendant must respond 
 not merely to his knowledge, but information, if any, derived from 
 others, and his belief which all of his knowledge and information have 
 produced. (Kitiredge v. Claremont Banketal., 1 Woodbury &. Minot 
 Rep. Ct. Court of U. S., 246—7. 244.) 
 
 Object of partic- (3) Another object for which particular interrogatories are put is to 
 ^ries."^''^"*^^''" C'^11 ^^^e matters of whi<;h discovery is sought to the remembrance of the
 
 S. III.] SEVERAL KINDS OF BILLS. 52 
 
 termed the interrogating-part of the bill (1)'; and 
 
 defendant, where he might otherwise inadvertently and not through 
 ■wilful evasion, state that he was unalile to afford information. 
 
 The usuil way of interrogating as to a document in a bill, is, to ask Tnteiropatories 
 generally, whether it was not Tn the words and figures, or to the pur- *^ t" liocumeiits. 
 port and effect thereinbefore in that behalf mentioned and set forth, or 
 in some other and what words and figures, or to some other and what 
 purport and effect ? But if the defendant says he is unable to set forth 
 whether it was to the purport and effect stated, or to what other pur- 
 port or effect ; and yet it is «. document to which he himself was a 
 party, or of the purport or effect of which it is probible that he has 
 some knowledge, it may often be expedient to amend the bill by in- 
 terrogating him step by step as to particulars expressed in the docu- 
 ment, in order to direct his attention to each point, and suggest to his 
 mind some points which he may remember when thus particularly in- 
 terrogated as to them. In Nelson v. P«n ford, A Be-dV.y Lord Larjg- 
 dale, M. R. observed, " It is probable that tlie defendant knows more 
 than is stated in the answer. He has not, however, been interrogaledj 
 step by step, as to the rent and the other particulars of the agree- 
 ment It is possible he may be able to answer some of the par- 
 ticulars in detail, if put to him by amendment. " Although the al'ei^nta 
 and probata must agree, and the premi.-es or case made in the stating 
 and charging parts, form the basis of the interrogatories and of relief, 
 (see p. 45, note,) yet if an interrogatory not growing out of \hii 
 matter stated or charged be answered, and the answer replied to, it 
 cures the informality and puts the matter in issue ; " for a matter may , 
 be put in issue by the answer, as well as by the bill, and if replied to, 
 eitiier party m^y examine to it." (See authorities quoted by Story, 
 Eq. PI. '(: 3(3 and n. 3, supra, p. 45, note.) 
 
 (1) By the 16th order of August, 1841, " A defendant shall not be Orders of An?> 
 
 , , , .,,.,,, . •,, 1841. as to inter- 
 
 bound to answer any statement or charge in the bill, unless specially rogatories and 
 
 and particularly interrogated thereto ; and a defendant shall not be lilwerThem! *^ 
 bound to answer any interrogatory in the bill, except those interroga- 
 tories which such defendant is req lired to answer ; and wliere a de- 
 fendant shall answer any statement or charge in the bill, to which he 
 is not in;errogated, only by stating his ignorance of the matter so 
 stated or charged, such answer shall be deemed impertinent." 
 
 By the 17th order, " The interrogatories contained in the interroga- 
 ting pait of the bill shall be divided as conveniently as may be from 
 each other, and numbered cunsecntively 1, 2, 3, &c., and the interroga- 
 tories which each defendant is required to answer, shall l.e speciti>d in 
 a note at tiie foot of the bill, in the form or to the ellect following ; that 
 is to say — ' The defendant (A. B.) is required to answer the iulerroga-
 
 53 FRAME AND END OF THE [ClIAP. I. 
 
 as it was originally used only to compel a full an- 
 swer to the matters contained in the former part of 
 
 54 the bill, it must be founded on those matters (u). 
 
 (u) 1 Ves. 538 ; 6 Ves. 62 ; Faulder v. Stuart, 11 Ves. 29G ; Bullock v. 
 Richardson, 11 Ves. 373 ; 11 Ves. 574. 
 
 tories numbered respectively 1, 2, 3, &c., and the office copy of the 
 bill taken by each defendant shall not contain any interrogatories ex- 
 cept those which such defendant is so required to answer, unless such 
 defendant shall require to be furnished with a copy of the whole bill." 
 
 By the 18th order, " The note at the foot of the bill specifying the 
 interrogatories which each defendant is required to answer, shall be 
 considered and treated as a part of the bill, and the addition of any 
 such note to the bill, or any alteration in or addition to such note after 
 the billis filed, shall be considered and treated as an amendment of 
 the bill." 
 
 By the 19th order, " Instead of the words of the bill now in use 
 preceding the interrogating part thereof, and beginning with the words 
 • To the end therefore,' there shall hereafter be used words in the form 
 or to the effect foUmving : To the end, therefore — That the said defen- 
 dants may, if they can, show why your orator should not have the re- 
 lief hereby prayed, and may, upon their several and respective corporal 
 oaths, and according to the best and utmost of their several and re- 
 spective knowledge, remembrance, information and belief, full, true, 
 direct and perfect answer make to such of the several interrogatories 
 hereinafter numbered and set forth, as by the note hereunder written, 
 they are respectively required to answer ; that is to say — 
 
 1. Whether, &c. 
 
 2. Whether, «fcc." 
 
 The 17th order of August, 1841, was intended to apply to cases in 
 which there were several defendants answering separately. Bate v. 
 Bate, 7 Beav. 528. 
 
 And this order does not require a number to be prefixed to each in- 
 terrogatory, but merely that the various portions of the interrogating 
 part should be divided and distinguished from each other by numbers, 
 as conveniently as may be, in order clearly to point out to each defen- 
 dant what part of the bill he is required to answer. 
 
 And where a defendant is required to answer to an interrogatory of 
 a specified number, he must answer not only the question to which the 
 number is immediately prefixed, but all others, if any, that may come 
 under that number, or ia any other words, all others, if any, that inter- 
 vene between that question and the next number. Boutcher v. Brans- 
 combe, 6 Beav. 541.
 
 S. III. SEVERAL KINDS OF BILLS. 54 
 
 Therefore, if there is nothing in the prior part of 
 the bill to warrant an interrogatory the defendant 
 is not compellable to answer it : a practice neces- 
 sary for the preservation of form and order in the 
 pleadings, and particularly to keep the answer to 
 the matters put in issue by the bill. But a variety 
 of questions may be founded on a single charge, 
 if they are relevant to it (?/) (1). Thus, if a bill is 
 filed against an executor for an account of the per- 
 sonal estate of his testator upon the single charge 
 that he has proved the will may be founded every 
 inquiry which may be necessary to ascertain the 
 
 (y) 1 Ves. 318; 11 Ves.30L 
 
 (1) [And see notes to Jerrard v. Sanders, 4 Bro. C. C. 322. (Eden's 
 edit.) At first view the repetition of the whole bill, by way of inter- 
 rogation, would appear a very useless prolixity. But experience has 
 proved the utility of this practice, beyond cavil : for the contrary 
 method would not fail to produce still greater expense and delay to 
 the parties, by occasioning frequent and numerous excepMons and 
 amendments. Tjie statement must, of necessity, be direct and posi- 
 tive ; and if the defendant thought it his interest to do so, he might 
 content himself with answering it according to the letter. The great 
 object of the interrogating part of a bill is, to preclude evasiveness in 
 the answer; and the whole attention of the draftsman must be turned 
 to this single point of putting the question in every variety of form, 
 to elicit a full and definite reply, and to prevent the defendant's having 
 any loop-hole to escape upon a negative pregnant. In fact, this part 
 of the bill is altogether subservient to the office which the bill performs, 
 of an examination ; and should, therefore, omit nothing essential to 
 the proof and elucidation of the statement. Lube, 271 — 2. 
 
 A defendant is not bound to answer interrogatories asking a disclo- 
 sure of matter no way connected with or material to the case. Hag- 
 thorp v. Hook, 1 Gil! &. Johns. 270.] 
 
 In Massachusetts by rule of cliancery, the bill concludes with a 
 general interrofjatory. But complainant may, when his case requires 
 it, propose specific interrogatories; and may allege by way of charge 
 any particular fact, for the purpose of putting it in issue. Tiie com- 
 mon charge of fraud and comb nation are omitted, excepting when 
 intended to be charged specifically. (Rule 4 ; 24 Pick. Rep. 411.) 
 
 6
 
 ^ FRAME AND END OF THE [ChAP. I. 
 
 amount of the estate, its value, the disposition made 
 of it, the situation of any part remaining undisposed 
 of, the debts of the testator, and any other circum- 
 stance leading to the account required (1). The 
 
 Prayer for relief, prayer of relief is the next and eighth part of the 
 bill, and is varied according to the case made, con- 
 cluding always with a prayer of general relief, at 
 
 Prayer for pro- tlic discrction of the court (x) (2). To attain all 
 the ends of the bill, it, ninthly and lastly, prays that 
 
 55 process may issue (y) requiring the defendants to 
 
 {x) Vide sup. p. 40. Fawkes v. Pratt, 1 P. Wms. 593;^ 
 
 (y) They alone are defendants and Windsor v. Windsor, Dick, 
 against whom process is prayed. See 707. (3) 
 
 (1) [See precedent, Willis, 186. Story's Eq. PJ. J 37, n. 4, 4th 
 edit., thinks the proposition in the text " is stated too broadly, and that 
 there should be a charge not only that the executor had proved the 
 will, but that he had received assets, in order to found the interroga- 
 tories."] 
 
 (2) [If a party is made a defendant, and no relief is prayed against 
 him, the bill will, as to him, be dismissed. JPalierson v. Same, 1 
 Hayw. 167.] 
 
 (3) [A person does not become a party merely because his name is 
 mentioned in it. By the English practice, the plaintiff may complain 
 and tell stories of whom he plea-es, but they only are defendants against 
 whom process is prayed, issued and served. And see Elmendorf v. 
 Delancey, Hopk. 555 ; Ex/^cutors of Brasher v. Van Corllmd', 2 J. C. 
 R. 244; Bond v. Hendricks, 1 Marsh. 5J4 ; Windsor v. Wi'dsor,2 
 Dick. 707; Neve v. Wesfon, 3 Atk. 547 ; Peach v. Venlner, 1 CW. R. 
 262 ; Verplanck v. Mercantile Ins. Co., 2 Paige, 438 ; Lyie v. Brad- 
 ford, 7 Monroe, 113. In the state of New- York, the writ of subpoena 
 
 is issued of course ; and, therefore, a formal prayer in the bill is not 
 necessary to entitle the compl linant to the process of the court. But 
 Btill it is necessary that every bill should clearly display the persons 
 who are impleaded as defendants. Elmenlorf v. Delancey, supra. 
 Thus, where there was no prayer of process against a corporation by- 
 its corporate name, but only against the offic rs thereof, and the cor- 
 poration was not described in the bill as being a party thereto, it waa 
 held, that the corporation was not before the ^iourt as a party to the 
 Buit. Verplanck \. Mercantile Ins. Co. suirfl.^
 
 S. IIL] SEVERAL KINDS OF BILLS. 55 
 
 appear to and answer the bill, and abide the deter- [46] 
 mination of the court on the subject ;. adding, in 
 case any defendant has privilege of peerage, or is 
 a lord of parliament, a prayer for a letter missive 
 before the prayer of process ; and in case the at- 
 torney-general, as an officer of the crown, is made 
 a 'defendant, the bill, as before observed, instead 
 of praying process against him, prays that he 
 may answer it uponbehig attended with a copy (1). 
 For the purpose of preserving property in dispute fuSn^oV^' 
 pending a suit, or to prevent evasion of justice, the 7egno°^ ",* **** 
 court either makes a special order on the subject, 
 or issues a provisional writ ; as the writ of injunc- 
 tion, to restrain the defendant from proceeding at 
 the common law against the plaintiff, or from com- 
 mitting waste, or doing any injurious act (z) ; the 
 writ of ne exeat regno to restrain the defendant 
 from avoiding the plaintiff's demands by quitting 
 the kingdom (a) ; and other writs of a similar na- 
 
 (z) It is a general rule, that the Casaviajor v. Strode, 1 Sim. & Stu. 
 
 writ of injunction will not be granted 381 ; Atnory v. Brodrick, 1 Jac. Rep. 
 
 unless prajed for by a bill which is 530. 
 
 already filed, Savory v. Dyer, Ambl. (a) It seems requisite tha£ the 
 
 70, or under special circumstances, writ of ne exeat regno should bo 
 
 which the party applying undertakes prayed for by bill. Anon. 6 Madd- 
 
 to file forthwith. M' Namara v. j4r- 276 ; unless the application be made 
 
 thur, 2 Ball & B. 349 ; but there are in a cause depending. Collinson v. 
 
 exceptions to this general rule, see , 18Ves.353; Moore v. Hudson, 
 
 Wrightv. Atkyns, I Wea-ScB. 313; 6 Madd. 218; see further ou the 
 
 In a late case in 9 Paige's Rep. the English rule is adhered to, that 
 a person against whom process of subpcena is not prayed, although 
 named in the bill, is not a defendant to the suit. 
 
 (1) Se6 note to page 11, supra. [See forms of prayer, Willis, 1; 
 Equity Draftman» 2d edit, 6, 7.] Suhpcena between state and state, 
 is directed to and must be severally served on the Governor and Attor- 
 ney Generil of the defendant sta'e. (The. S'ale of New Jersey v. The 
 FcQple of the Slate of New- York, 3 Peters, 46 1 . Forms, 467—8, n. (a).)
 
 56 FRAME AND END OF THE [ChAP. I. 
 
 [47] ture. When a bill seeks to obtain the special order 
 of the court, or a provisional writ, for any of these 
 purposes, it is usual to insert, immediately before 
 the prayer of process a prayer for the order or 
 particular writ which the case requires ; and the 
 bill is then commonly named from the writ so pray- 
 ed, as an injunction-bill, or a bill for a writ of ne 
 exeat regno (1). Sometimes the writ of injunction 
 
 subject of this writ, Hyde v. Whit- 605 ; Graves v. Griffith, 1 Jac. & 
 
 field, 19 Ves. 342 ; Raynes v. Wyse, W. 646 ; Blaydes v. Calvert, 2 Jac. 
 
 2 Meriv. 472 ; Flack \. Holm, IJ&c. & W. 211; Pannell v. Taylor, 1 
 
 & W. 405, and the cases therein Tarn. Rep. 96. [Grant v. Grant, 3 
 
 cited, Leake v. Leake, 1 Jac. & W. Russ. 598.] 
 
 JVe exBot not 
 
 (1) A ne exeat will not be gcanted, unless prayed for by the bill, at 
 granted unless least where it appears that the plaintiff at the time of filing the bill 
 knew that the defendant intended to leave the kingdom. Sharp v. 
 Taylor, 11 Sim. 50. But in New- York and elsewhere, it has been re- 
 garded as not indispensable, that this process should be prayed for in 
 the bill. It might be granted on cause, or petition or motion after bill 
 filed. And more particularly where plaintifT had, at the com- 
 mencing of his suit, no reason to suppose defendant meant to depart. 
 (See the cases infra, and those cited by Story Eq. PI. J 44, n. 2, 4th 
 edit.) The writ is abolished in New-York, a simple order from a judge 
 substituted. See Code of Procedure, tit. 1, 1. 
 
 [The object of the writ of ne exeat is to obtain equitable bail, and may 
 be applied for in any stage of the suit. In Stewart v. Sleicart, 1 B. & 
 B. 73, a ne exeat was granted against a complainant who was about to 
 leave the country before the decree for costs could be made effect ual 
 against him. Dunham v. Jackson, 1 Paige's Ch. Rep. 629 ; Mitchell 
 V. Bunce, 2 lb. 606. The debt for which the writ issues must be 
 equitable, (save in a matter of account), must be due, and must be 
 such a debt that the snm to be marked upon the writ can be ascertained. 
 Boehm v. Wood, 1 Turn. & R. 332 ; Seymmr v. Hazard, 1 J. C. R. 
 1; Porter v. Spencer, 2 lb. 169; Smedburg v. Mark, 6 lb. 138; 
 Mitchell V. Bunce, supra. To sustain the application for a writ of ne 
 exeat, sufficient equity must appear on the face of the bill. Woodward 
 V. Shatzell, 3 J. C. R. 412. 
 
 It seems that a writ of Tie exeat is not granted on petition and motion 
 only, without a bill being previously fi'ed. Mattocks v. Tremain, lb. 75. 
 In the state of New-York, the writ of ne e-xeat is not a prerogative writ 
 In a proper case this writ is of right, and not discretionary. Gilbert 
 y. Colt, Hopk. Rep. 496.]
 
 S. III.] SEVERAL KINDS OF BILLS. 56 
 
 is sought, not as a provisional remedy merely, but 
 as a continued protection to the rights of the 
 plaintiff; and the prayer of the bill must then be 
 framed accordingly. 
 
 These are the formal parts of an original bill as Remarks on the 
 
 . insertion of the 
 
 usually framed. Some of them are not essential, several forego- 
 
 •J ing parts. 
 
 and particularly it is hi the discretion of the person 
 who prepares the bill, to allege any pretence of the 
 defendant, in opposition to the plaintiff's claims, 
 or to interrogate the defendant specially. The in- 
 discriminate use of these parts of a bill in all cases 
 has given rise to a common reproach to practisers 
 in this line, that every bill contains the same story 
 three times told(l). In the hurry of business it 
 may be difficult to avoid giving ground for the re- 
 proach ; but in a bill prepared w\\h attention the 
 parts will be found to be perfectly distinct, and to gy 
 
 have their separate and necessary operation. 
 
 The form of every kind of bill bears a resem- Formofbrnsnot 
 
 J beine; ordinary 
 
 blance to that of an original bill ; but there are ne- °"8inaibiiii. 
 cessarily some variations, either arising from the 
 
 (1) [See Macnamara v. Sweelman, 1 Hogan, 29.] 
 [The framing of bills is usually the province of the junior counsel; 
 it is of great importance, and requires much knowledge and judgment. 
 In no other science is so much expected from the younger members. 
 In all perplexed and diflicult questions, it is prudent to have the opin- 
 ion of some senior counsel upon the fitness of the bill for its intended 
 purpose ; it may ultimately save much expense and disappointment. 
 1 have heard Lord Eldon jocosely observe, that Lord Tliurlow thought 
 a machine might be inventeil for the drawing of bills. But in this sar- 
 casm, that great judge too mucli underrated the knowledge, judgment 
 and exp°rience, requisite in the framing of bills in matters of impor- 
 tance. With more truth it has been remarked, " fliat the mere form 
 " of bringing a question before a court, is of iiself a science, an art 
 " less understood and more difficult to learn, than the construction and 
 " use of the most complicated machine, or even the motions of the 
 "heavenly bodies." Maddock, vol. ii. p. 167.]
 
 57 FRAME AND END OF THE [ChAP. I. 
 
 purposes for which the bill is framed, or the cir- 
 cumstances under which it is exhibited ; and those 
 variations will be noticed, together with the pecu- 
 liarities attending each kind of bill. 
 [48] Every bill must be signed by counsel {a) ; and 
 
 ture- it it contains matter criminal, impertinent (1), or 
 
 Bcandal and im- ■'■ ■' 
 
 pertinence. 
 
 (a) Dillon \, Francis, Dick. G8 ; garded as a security, that, judging 
 
 French v. Dear, 5 Ves. 547 ; 2 Ves. from written instructions laid before 
 
 & B. 358 ; Kirkley v. Burton, 5 him of the case of the defendant as 
 
 Madd. 378, note; Webster y. Tlirel- well as of the plaintiff, there appeared 
 
 fall, 1 Sim. & Stu. 135 ; Pitt v. to him, at the time of framing it, good 
 
 Macklew, 1 Sim. & Stu. 136, note, ground of suit. 3d June, 1826, MSS* 
 
 Lord Eldou declared that the signa- And see 3 Ves. 501. 
 ture of counsel to a bill is to be re- 
 
 ProliKity. (1) The setting forth important documents verbatim is not imperti- 
 
 nence, but if unnecessary, it may be visited in costs. Lowe v. Wil- 
 liams, 2 S. & S. 674. 
 Impertinence. Although it is not necessary, in an information that relators 
 
 Statement show. g}^Qy|(j j^ave anv interest in the subject of the suit, yet a statement 
 
 mg the interest •' ... 
 
 of relators. showing the nature of their interest is not impertinent, but is conve- 
 
 nient, as, in the event of the infoimation failing, the court is thereby 
 enabled to make the parties pay the costs who are parties beneficially 
 interested in the property. Richards v. The AUuniey General, 12 CI. 
 & Fin, 30. 
 Unnecessary I" Woods v. Woods, 10 Sim. 215, the bill slated that a will in which 
 
 words. there were several words mis-spelt, was " in the words and figures 
 
 hereunder set forth, the inditing and spelling thereof being set forth 
 with the greatest accuracy ; and Sir L. Shadwell, V. C, held that this 
 preface was impertinent ; and that it would have been sufficient to al- 
 lege that the testator made his will " as follows :" — 
 
 For other cases on this subject, see note to original page [313], 
 infra. 
 
 " The word impertinent by the ancient jurisconsults, or law coun- 
 " sellors, who gave their opinions on cases, was used merely in oppo- 
 " sition to pertinent — ratio pertinens is a pertinent reason, that is, a 
 " reason pertaining to the cause in question ; ajid a ratio impertinenst 
 " an impertinent reason, is an argument not pertaining to the subject." 
 D'Israeli's 2d series Curiosities of Lit. vol. ii. p. 22. 
 
 Impertinences are matters not pertinent or relative to points, which, 
 in the particular stage of the proceedings in which the cause is, can 
 properly come before the court for decision. ( Wood v. Mann, 1 Sumner's 
 R. 588, 678.)
 
 S. III.] SEVERAL KINDS OF BILLS. 5S 
 
 scandalous, such matter may be expunged, and 
 the counsel ordered to pay costs to the party ag- 
 grieved (h). But nothing relevant is considered as 
 scandalous (c) (1). 
 
 (fe) Ord. ill Ch. Ed. Bea. 165. 1D4 ; 6 Madd. 252. 
 Emerson v. Dallison, 1 Ch. Rep. (c) 2 Yes. 24; 15 Yes. 477. 
 
 In Hawhy v. Wolcerlon 5 Paige R. 523, 522. On hearing upon 
 exceptions to masier's report on exce[)tions to bill for impertinence, the 
 chancellor held — that in determining whether the allegation or state- 
 ment in a bill is relevant or pertinent, the bill must be viewed not only 
 as a p'eading but as an examination of defendant on oath ; (of which 
 see further p. 45. n ite,) and where any allegation or statement may be 
 material in establisiiing the general allegations of the bill as pleading or 
 in ascertaining or determining the nature, extent, or kind of relief to 
 which complainant is entitled; or which may legally influence the 
 court on the question of costs, such allegation or statement if admitted 
 by defendant or established by proof, is relevant and cannot be excepted 
 to as impertinent. 
 
 A few unnecessary words in a bill do not render it impertinent ; as, 
 where the allegation is one which, from its nature cannot be put in issue 
 and proved, as where the separate allegation of one of Complainants 
 was, that if he had owned the premises in his own right, he would not 
 have had certain ornamental trees cut down for $500. In such a case 
 it is not exceptionable unless the irrelevant passage would lead to the 
 introduction of improper evidence by putting facts in issue which are 
 foreign to the cause ; or where the irrelevant matter would embarrass 
 the defendant in answering the bill. (Idem. 625, 522.) 
 
 (1) Monlriou v. Carrick\ 6 Jur. 97, V. C. W, 
 
 In a bill impeaching the validity of a will on the ground of undue Scandal and im' 
 influence over the testator, exercised by a female who takes under such ?«"=»"*"*'='• 
 will an allegation that prior to the date of the will she engaged in a 
 criminal connexion with him, and openly cohabited with him as if she 
 had been his wife, is nut scandalous or impertinent. Anonymous, I 
 Wy. &, C. 78. 
 
 So, if in a bill for setting aside a will on the ground of fraud and un- 
 due influence practised oif the testator by a female, there are allega- 
 tions and interrogatories founded thereon, relating to her cohabitation 
 with the testator, though a married man, they are not scandalous or 
 impertinent, as they relata to that which may be most material in the 
 chain of evidence of undue influence. Evans v. Oicen, 5 Law J. Ch. 
 Rep. (N. S.) 74, M. R. 
 
 In a bill against an executor, praying for a receiver and an injunc-
 
 58 FRAME AND END OF THE [ChAP. I. 
 
 2. Where two or more {d) persons claim (^) the 
 same thing (2) by different or separate interests (/), 
 
 59 and another person, not knowing to which of the 
 claimants he ought of right to render a debt or 
 duty (^g), or to deliver property in his custody (/i), 
 
 (d) Angel V. Iladden, 15 Ves. 244. Paris v. Gilham, Coop. R. 5G ; Mar- 
 
 (e) See 2 Ves. Jr. 107; 15 Ves. iinius v. //eZmuiA, 2 Ves. & B. 412 ; 
 245; Stevenson V. Anderson, 2 Yes. (2d edit.); Morgan v. Marsack, 2 
 & B. 407; Morgan v. Marsack, 2 Meriv. 107. 
 
 Meriv. 107. (g) 1 Eq. Ca. Abr. 80 ; 2 Ves. Jr. 
 
 (/) And this may be where the 310 ; and see Farebrother v. Prat- 
 
 claim of one is by virtue of an al- tent, 1 Dan. Exch. R. 64 ; Fare- 
 
 leged legal, and that of the other Irother v. Harris, ibid. 68. 
 
 upon an alleged equitable right, (A) This will not extend to cases 
 
 tion against the receipt of the assets by the execntor, on account of 
 
 his misconduct, it is not scanddlous nor impertinent to enter into mi- 
 nute details in order to prove that the executor is a parson of drunken, 
 violent, and disorderly habits, and of great poverty : for these details 
 as evidence of conduct, are material to the decree asked ; and the court 
 will not limit the number of instances which the plaintifFmay adduce 
 for the purpose of strengthing his case. Eieret v. Pryiherych, 6 Jur. 
 3. V. C. B. 
 
 In the late court for the correction of errors in New-York, on affir- 
 ming chancellor's order conforming master's report, allowing exceptions 
 for scandal and in)pertinence, to a petition of stockholders for dissolu- 
 tion of a company, the petition having charged a fraudulent combina- 
 tion between a stock subscriber and the company, implicating a third' 
 person and one of the commissioners of stock subscription, it was held 
 that as the act charged in the petition would not work a forfeiture of 
 the corporation, the matter was impertinent, as well as scandalous, 
 and was ordered to be expunged. The court say that the names of 
 individuals not parties to the proceedings in the case, ought not to be 
 introduced in an offensive and discreditable manner in the petition or 
 pleading, unless the matters with which tliey are thus connected are 
 material and pertinent to the relief prayed for ; as they have no oppor- 
 tunity for explanation or vindication from the%.spersions cast upon their 
 characters. Ordinarily, even where the matter set forth involving the 
 acts and proceedings of persons not parties to the record, are relevant, 
 it is unnecessary to designate their names, all that can be material or 
 important to spread before the court are the facts. (King d^ Prim& 
 V. Sea Insurance Co. 26 Wendell Rep. 64, 62, et seq.) 
 
 (1) Glyn V. Duesbury, 11 Sim. 139.
 
 S. III.] SEVERAL KINDS OF BILLS. 59 
 
 fears he maybe hurt by some of them (i), he may [49] 
 exhibk a bill of interpleader against them (/t) (L). of!°^"* 
 
 of bailment where the parties maybe (i) 1 Eq Ca. Ab. 80. [Morris v. 
 
 compelled to interplead at law. See Barc/ay, 2 J. J. Marsliall, 375 ] 
 
 Langstin v. Boylston, 2Ves. Jr. lOl ; (k) 2 Eq. Ca. Ab. 173 ; Cooper v. 
 
 I Meriv. 405. It may be observed ChUty, 1 Burr. 20, and see ib. 37; 
 that he must not himself claim any Prac. Reg. 78 ; Wy. Ed. [Bednllv. 
 interest in the property ; Mitchell v. Hoffman, 2 Paige's Ch. Rep. 199.] 
 Hayne, 2 Sim. & Stu. 63. 
 
 (1) It is essential to the character of a plaintiff to a bill of inter- want of interest 
 pleader, that he should have no personal interest. Moore v. Usher, ^^i]i'o]^^^rplot 
 7 Sim. 383. der. 
 
 A bill is not sustainable as a bill of interpleader, where it raises a. Bill of intcrplea- 
 question between the plaintiff and one of the defendants : as where it question be- 
 alleges that interest on a sum secured by a policy is not due from the *"'?'^? F "d"^ l 
 insurance company by whom the bill is filed. Bignold v. Audland, 
 
 II Sim. 24. 
 
 The complainant must show that he is in the situation of a mere 
 stakeholder, having no personal interest in the controversy betweea 
 the defendants, and that their respective claims Hf^ainst liim are of the 
 name nature or character. He cannot sustain the s^uit if he is obliged 
 to put his case upon this — that as to some of the defendants he is a 
 wrongdoer. Hence a sheriff wlio levies on property claimed by a 
 third person, cannot file a bill to ccnpel the judgment creditor and the 
 owner to interplead, instead of bringing the question at law against 
 the sheriff as the wrongdoer. (Shaw v. Coster, 8 Paige's Rep. 
 344_6. 339.) 
 
 Complainant must show he is ignorant of the rights of the respec- 
 tive parties who are called on by him to interplead, or at least that. 
 there is some doubt in point of fa:l to which claimant, the debt or duty 
 belongs, so as he cannot safely pay or render it to one without ri?k of 
 being made liable for the same debt or duty to tlie other. (Ib. 347 — 8.) 
 [The mere suggestion of a doubt as to who is entitled to money due 
 by the pjaintiff is not sufficient. Tabin v. Wilson, 3 J. J. Maisljall's 
 Rep. 67.] But the party filing not being a claimant, cannot be supposed 
 to be able to set out the claims as accurately as the claimants them- 
 selves might. It is enough to satisfy the court there are opposing 
 claims against which he in equity is entitled to protection, until they 
 are settled so as he can pay with safety. The court is liberal to 
 Btakelinlders or agents, h:tving no inerest in the property — on the- 
 principle that they lave right to prntection, not from being compelled 
 to pay, but from the vexation att-nding all the suits tliat may possibly 
 be instituted against them. The bill lies, though the claim of one de-
 
 59 FRAME AND END OF THE [ClIAP. I. 
 
 In this bill he must state his own rights, and their 
 
 fendant is at law, and the other of equitable cognizance. {Executors 
 of Lozier v. Adm'rs of Van Sarin, 2 Green's Ch. Rep. New Jersey, 
 329, 330. 325 ) S. P. [Richards v. Sailer, ti Johns. Ch. Rep. 4i5 ; 
 bat see Barclay v. Curlis, 9 F^rice, 661.] 
 
 Tiie principle adopted in Bedell v. Jliffman, 2 Paige's R'^p. 199, is 
 that the bill Bhould not be filed, where complainant in any other way 
 can be protected from an unjust litigation in which he has no interest. 
 But the Chancellor in the above case of the executors of Lozier, said, 
 the rule he thought, will be found to be too broad, and that the bill 
 has been sustained in many cases on other grounds than those of ab- 
 solute necessity. To executors (and such are the comp'ainants in 
 this case) the court has always been liberal in extending to them when 
 acting in good faith, counsel, indemnity and protection. [If the 
 complainant has paid over money to one defendant under a claim to 
 which he was bound to submit, this will not exclude him from filing 
 such a bill. Kash v. Smith, 6 Conn. Rep. 421.] 
 
 A person taxed in two towns for the same property, which is taxa- 
 ble in one only, but the right as to each town is doubtful, may file bill 
 of interpleader to compel the collectors to settle the right between 
 themselves. (Mohawk and Hudson Rail Road Co. v. Clute, 4 Paige's 
 Rep. 385.) So against two collectors of two counties, in both which 
 complainant had been assessed for the same personal property. 
 (Thompson v. Ebbetts and Welch, 1 Hopk. Ch. Kep. 272.) But com- 
 plainant in his bill must offer to bring the fund, and it seems in case of 
 tax, the larger tax, into court, and must show he is ignorant of the 
 rights of the claimants, or at least, that there is some doubt which is 
 entitled to the fund, so as he cannot safely pay it to either. '• The 
 only ground upon what the court assumes jurisdiction in a simple bill 
 of interpleader, is the danger of injury to the complainant from the 
 doubtful rights and conflicting claims of the several defendants, as 
 between themselves." For this reason he must state his own situa- 
 tion, in reference to the fund in question, or the duty to be performed, 
 and the nature of the claims of the several defendants to the same : 
 and where it appears on the bill that one of them is clearly entitled to 
 the debt or duty claimed, the bill is not sustainable. Where complain- 
 ant is entitled to equitable relief against the legal owner of the pro- 
 perty, if the legal title to it is in dispute between two or more, so as 
 he cannot ascertain to which it belongs, he may file a bill in the nature 
 of a bill of interpleader and for relief, against both of the comp'ain- 
 ants. An offer to pay to the respective collectors such amount as is 
 properly chargeable to the complainants on .account of tlieir real 
 estate, or as the court may direct, would be a very proper ofl'er in a 
 bill for relief, in the nature of a bill of interpleader ; but it is not what
 
 S. III.] SEVERAL KINDS OF BILLS. 59 
 
 several claims ; and pray that they may interplead, 
 so that the court may adjudge to whom the thing 
 belongs, and he may be indemnified. If any suits 
 at law are brought against him, he may also pray 
 that the claimants may be restrained from proceed- 
 ing till the right is determined (/). 
 
 As the sole ground on which the jurisdiction of ^JJ""* '^ ^^ 
 the court in this case is supported is the danger of 
 injury to the plaintiff from the doubtful titles of the 60 
 
 defendants, the court will not permit the proceed- 
 ing to be used collusively to give an advantage to 
 either party, nor will it permit the plaintiff to delay 
 the payment of money due from him, by sugges- 
 ting a doubt to whom it is due ; therefore, to a 
 bill of interpleader the plaintiff must annex an affi- 
 davit that there is no collusion between him and 
 any of the parties (m) ; and if any money is due 
 from him he must bring it into court, or at least 
 offer so to do by his bill (?i) (1). 
 
 (I) Prac. Reg. 78; Wy. Ed.; E. B. 410; 1 Jac. R. 205; (8 Paige's 
 
 J. Comp. V. Edwards, 18 Ves. 376 ; Ch. Rep. 345.) 
 
 Croggon V. Si/mons, 3 Madd. 130 ; (n) Prac. Reg. 79, Wy. Ed. ; Earl 
 
 See 1 Jac. R. 205. of Thanet v. Palteson, 3 Barnard, 
 
 (wi) 2 Eq. Ca. Ab. 173 ; Errington 247 ; 2 Ves. Jr. 109 ; Burnett v. An- 
 
 V. Att. Gen. Butnb. 303 ; 2 Ves. & derson, I Meriv. 405 ; Warington v. 
 
 is required in a bill filed for the simple purpose of asking the defen- 
 dants to litigate and settle their conflicting claims between themselves. 
 For these reasons the bill was deemed defective in M Jiaiok and Hud- 
 son R. li Co. V. Clute, 4 Taifie's Rep. supra, 391—3. 385. 
 
 (1) (8 Paige's Ch. Rep. 345. 4 id. 392. 385, see p. 59, note.) [In 
 general, on a bill of interpleader, the plaintiffs will be allowed their 
 costs out of the fund, but if the money has not been brought into 
 court, they must pay interest upon it. Spring v. S. C. Ins. Co., 8 
 Wheat. '268.1 For further information on this fubject, see infra, origi- 
 nal pp. [141—143.] [For form of bill, see Willis on Eq. PI. 303 ; 
 Eq. Draft. 248. 2d edit.
 
 60 FRAME AND END OF THE [ChAP. L 
 
 [50] 3. When an equitable right is sued for in an in- "^ 
 
 of Mrtiorarr"* fcHor court of cquity, and by means of the Hmited 
 jurisdiction of the court the defendant cannot have 
 complete justice, or the cause is without the juris- 
 diction of the inferior court , the defendant (o) may- 
 file a bill in chancery, praying a special writ, called 
 a writ of certiorari, to remove the cause into the court 
 
 61 of chancery ( 7?) . This species of bill, having no 
 
 Contents there- , , • i r • /• 
 
 of- Other object than to remove a cause irom an mie- 
 
 rior court of equity, merely states the proceedings 
 in the inferior court, shows the incompetency of 
 that court, and prays the writ of certiorari. It 
 does not pray that the defendant may answer, or 
 even appear to the bill, and consequently it prays 
 
 Proceedin^a i j i j 
 
 thereon. " no Writ of subpoBua (q). The proceedings upon 
 the bill are peculiar, and are particularly mentioned 
 in the books which treat of the practice of the 
 court (r). It may seem improper to consider cer- 
 [51] tiorari bills under the heads of bills praying relief; 
 but as they always allege some incompetency of the 
 
 Wheatstone, 1 Jac. Rep. 202 ; E. I. pay in the money may be grounded 
 
 Comp. V. Edwards, 18 Ves. 376 ; on the bill only, 1 Sim. 385.] 
 and see Staiham v. Hall, 1 Turn. R. (o) Sowton v. Cutler, 2 Chan. 
 
 30. In some Instances it seems, Rep. 108. 
 
 that if an injunction should have {p) Prac. Reg- 41 ; Boh. Priv. 
 
 been prayed it would not be granted, Lond. 291 ; Hilton v. Lawson, Gary's 
 
 unless the money should have been Rep. 48 ; 1 Vern. 178. 
 actually paid into court, Dungey v. (5) There are cases mentioned ia 
 
 Angove, 3 Bro. C. C. 36. [See 1 the books apparently to the contrary; 
 
 Hogan, 118 ; 1 Sim. 15.] And it but they seem not to have been cases 
 
 may be observed, that where the of bills praying merely the writ of 
 
 whole subject matter of the suit is certiorari. See 1 Ca. in Ch. 31. 
 money, and the same has been paid (r) Prac. Reg. 82, Wy. Ed. ; Ste- 
 
 into court, and the cause heard, the phenson v. Houlditch, 2 Vern. 491 ; 
 
 suit is at an end, so far as the plain- Woodcraft v. Kinaston, 2 Atk. 317 ; 
 
 tiff is concerned. See Anon. 1 Vern. Pierce v. Thomas, 1 Jac. R. 54; 
 
 351 ; 3 Barnard, 250. [A motion to Edwards v. Bowen, 2 Sim. &. Stu. 
 
 514.
 
 S. III.] SEVERAL KINDS OF BILLS. 61 
 
 inferior court, or injustice in its proceedings (s), 
 and seek relief against that incompetency or in- 
 justice, they seem more properly to come into con- 
 sideration under this head than under any other. 
 In case the court of chancery removes the cause 
 from the inferior court, the bill exhibited in that 
 court is considered as an original bill in the court 
 of chancery, and is proceeded upon as such. 
 
 Original bills not praying relief have been al- praying rcuef. 
 ready mentioned to be of two kinds : 1, bills to per- 
 petuate the testimony of witnesses ; and 2, bills of 
 discovery. 
 
 1. A bill to perpetuate the testimony of witnesses i- ,^>"« ^ ,.pc- 
 must state the matter touching which the plaintiff contents ther©. 
 is desirous of giving evidence, and must show that ? ' 
 he has some interest in the subject (t), and pray 
 leave to examine witnesses touching the matter so 
 stated, to the end that their testimony may be pre- 
 served and perpetuated (u) (1). 
 
 (s) 1 Vern. 442. testimony of witnesses, Dalton v. 
 
 (J.) Mason v. Ooodburne, Rep. Thomson, Dick. 97. [Jerome v. 
 
 Temp. Finch. 391; Smith v. Att. Same, 5 Conu. Rep. 352 ; Miller v. 
 
 Gen. Mich. 1777, in Chaac. As to Sharp, 3 Randolpii's Rep. 41]; the 
 
 the nature of tiie interest which is suit is terminated by their examina- 
 
 Bufficient whereupon to institute such tion ; and of course, therefore, is not 
 
 a suit, see 6 Ves. 260, 261; Lord brouglit to a hearing, //aW v. //ocideff- 
 
 Dursleyv.Fiizhardinge,6Ve9.23l; don, 2 P. Wms. 162 ; 2 Ves. 497 ; 
 
 Alliin V. Allan, 15 Ves. 130. Anon. Ambl. 237 ; Vaughan v. Fitz- 
 
 («) Rose V. Gannel, 3 Atk. 439 ; gerald, 1 Sch. &, Lefr. 316 ; Morri- 
 
 1 Sch. & Lefr. 316. As rehef ia not son v. Arnold, 19 Ves. 670. 
 prayed by a bill to perpetuate the 
 
 (1) [Jeremy's Eq. Jur. 273; Jerome v. Same, 2 Conn. Rep. 352; 
 May V. Armslrong, 3 J. J. Marshall's Rep. 201. Such a bill must be 
 sworn to. Laight v. Morgan, 1 J. C. 429 ; S. C. 2 C. C. E. 344. 
 For a form of tills affidavit, 2 Madd. Ch. Rep. 252, see a precedent of 
 such a bill in Willis on Pleading, p. 310; and observe the notes and 
 xasea there ; also a precedent in the Equity Drafts. (2d edit.) p. 466.]
 
 62 FRAME AND END OF THE [ChAP. !► 
 
 [52] The bill ought also to show that the facts to 
 
 which the testimony of the witnesses proposed to 
 be examined is conceived to relate cannot be im- 
 mediately investigated in a court of law, as in the 
 case of a person in possession without distur- 
 bance (x) ; or that before the facts can be investi- 
 gated in a court of law the evidence of a material 
 witness is likely to be lost, by his death, or depar- 
 ture from the realm (y) (1). To avoid objection 
 
 (x) See Duke of Dorset v. Gird- could only be what is technically 
 
 ler, Free, in Ch. 531 ; 1 Sim. & termed an examination de bene esse, 
 
 Stu. 88. upon the ground of his having only 
 
 (y) According to the latter part of one witness to a matter on which 
 
 this proposition, the right of action his claim depends, or, \f ho have 
 
 may be either in the plaintiff er de- more, oil the gfound of their being 
 
 fendant in equity. With reference aged, or too ill or infirm to' attend iu 
 
 to the defendant the time of bringing a court of law, and that he is tliere- 
 
 the action depending upon his will, fore likely to lose their testimony be- 
 
 the situation of the plaintiff would fore the time of trial, 1 Sim. & Stu. 
 
 be similar to that intimated in the for- 90, iu which case it seems that it 
 
 mer part of the proposition in the ought to be stated in the bill that th© 
 
 text, 1 Sim. & Stu. 89 ; and with re- action was brought before the same 
 
 spect to the plaintiff, it must be un- was filed. Angellv. Angell, 1 Sim. 
 
 derstood to relate to the case of his & Stu. 83. On the general subject 
 
 not being able at present to sustain seethe cases cited, I Sim. & Stu. 93, 
 
 an action. Cox v. Colley, Dick. 55 ; note, and Teale v. Teale, 1 Sim. & 
 
 1 Sim. &. Stu. 1 14 ; for, if he should Stu. 385. 
 have such present right, his object 
 
 (1) [Or that such witness is beyond sea; or that the facts ta 
 be examined are of great importance, or no other but a single wit- 
 ness, although neither aged nor infirm. (Shirley v. Earl Ferrers, 3 P. 
 Wms. 77 ; Pearson v. Ward, 1 Cox, 1 77 ; Hankin v. Middledilch, 2 
 Brn. C. C. 640 ;) or, only two witnesses {Lard Ch/Jmondeley v. Lord 
 Orford, 4 Bro. C. C. 15S,) to be examined, is or are privy lo such facts 
 whereby the complainant is in danger of losing his or their testimony.] 
 
 Bills to perpetuate testimony seem divisible into two kinds ; namely, 
 bills to perpetuate testimony, specifically so called, and bills to take 
 testimony de bene esse. For some points as to these, not decided within 
 the period compri.-ed in the present editor's field of labor, the reader 
 is referred to Story '.s Eq. PI. J) 299—310. 
 
 The distinction between the two bills according to Mr. Story is.
 
 S. III.] SEVERAL KINDS OF BILLS. 63 
 
 to a bill framed on the latter grronnd it seems pro- Affidaritin rap. 
 
 O 1 port. 
 
 per to annex to it an affidavit of the circumstances 
 by which the evidence intended to be perpetuated 
 is in danger of being lost (z) ; a practice adopted [53] 
 in other cases of bills which have a tendency to 
 change the jurisdiction of a subject from a court 
 of law to a court of equity, and which will be af- 
 terwards more particularly noticed. It seems ano- Additional ayer- 
 
 r •' ment. 
 
 ther requisite to a bill of this kind that it should 
 state that the defendant has, or that he pretends 
 
 to have, or that he claims, an interest to contest _. 
 
 o4 
 the title of the plaintiff in the subject of the pro- 
 posed testimony (a). 
 
 4. Every bill is in reality a bill of discoveiy ; but ^Joy^j"y °^ ^^ 
 the species of bill usually distinguished by that 
 title is a bill for discovery of facts resting in the 
 knowledge of the defendant, or of deeds or writings, 
 or other things in his custody or power, and seek- 
 ing no relief in consequence of the discovery (1), 
 
 (r) Earl of Suffolk v. Green, 1 see Philips v. Carew, 1 P. Wms. 
 
 Atk. 450. All affidavit of like cir- 117; Shirley v. Earl Ferrers, 3 P. 
 
 cunistances is also requisite, where Wms. 77. 
 
 the object is merely the examination (a) See Lord Dursley v. Fitz- 
 
 of the witness de bene esse. Angell hardinge, 6 Ves. 251. 
 V. Angell, 1 Sin^. &. Slu. 83 ; and 
 
 that the former lies where no present suit can be brought at law by the 
 ■ party seeking the aid of the court to try his right ; the latter in aid of 
 a suit pending. Story's Eq. PI. \ 303. 307. In New-York, provision 
 by statute exi.-ts for taking testimony de bene esse before certain officers, 
 without filing a bill. 
 
 (1) The rule to be applied to a bill seeking discovery from an in- xhebill. 
 terested party, is, that the compkinant shall cliarge in his bill tliut iho 
 facts are known to the defendant, and ought to be di.*c'o?ed by him ; 
 and thai the complaiimni. is unable to prove them by ot',er testimony. 
 And wlipn the facts are desired to assist a court of law in the progress 
 of a cause, it should be affirmatively stated in tlie bill, that they are
 
 <64 FRAME AND END OF THE [ChAP. I. 
 
 though it may pray the stay of proceedings at law 
 
 wanted for such purpose. (Brown v. Swann, 10 Peters, 502.497. 
 But see note, infra.) 
 
 [In order to give jurisdiction, on account of the defect of proof, the 
 fact sought to be discovered must rest exclusively in the defendant's 
 knowledge, and be susceptible of no other proof; and must be so al- 
 leged. Emerson V. Stalnn, 3 Monroe's (Kentucky) Rep. 117.] 
 
 If certain facts essential to the merits of a claim purely legal, be 
 exclusively within the knowledge of a party against whom that claim 
 is asserted, he may be required to disclose those facts; and the court 
 being thus in possession of the cause, will proceed to determine the 
 whole matter in controversy. But this rule cannot be abused by being 
 employed as a mere pretext for bringing causes proper for a court of 
 law, into a court of equity. If the answer of defendant discloses 
 nothing, and plaintiff supports his claim by evidence in his own posses- 
 sion, unaided by the confessions of the defendant, the established rules 
 limiting the jurisdiction of courts require that he should be dismissed 
 from the court of chancery, and permitted to assert his rights in a 
 court of law. {Russell v. Clark's Ex'rs., 7 Cranch Rep. 69 — 97 ; 2 
 Cond. Rep. 422. 417.) 
 
 In the late court of chancery in New-York it was settled, notwith- 
 standing the English decisions, infra, that if a bill contains no prayer 
 in the usual form, either for specific or general relief, it may be con- 
 sidered a bill of discovery merely, although the word decree is erro- 
 neously in>e;ted -n the prayer for process of subpoena instead of, or 
 after, the word direction; which latter word instead of the former 
 should be inserted in the prayer of process upon a bill of discovery. 
 {Schroeppel v. Redfield, 5 Paige's Ch. Rep. 245; Mclntyre v. Trus. 
 ties of Union College and E. Noll, 6 !d. 242—3. 239.) The prayer 
 for relief usually precedes that for process ; and no relief can be granted 
 upon the ordinary conclusion fortlie prayer for subpcena. It is nothing 
 more than a prayer for such process, and there is very little difference 
 in the effect of the expressions " to abide the further order and direc' 
 tion of the court," or the further order and decree of the court. If 
 the bill, although for discovery, contains a prayer for relief, it is con- 
 verted into a bill for relief, bit the prayer for process does not have 
 that effect. (Id. 5 Pa^ge, 245—8. 1 Edw. V. C. R. 271.) 
 Bill of discovery A bill which specifically prays a discovery only, but concludes with 
 pra^V"for g^ene- * prayer for general relief, is a bill for relief. But liberty will be given 
 rai relief. to amend by striking out the prayer for general relief. Angell v. 
 
 We^tcombs, 6 Sim. 30. 
 
 If, in the praytr of process, a bill prays that the defendant may 
 abide such order and decree as the court may think proper to make,
 
 S. III.] SEVERAL KINDS OF BILLS. 64 
 
 till the discovery should be made. This bill is For what they 
 
 ■' are commonly 
 
 commonly used in aid of the jurisdiction of some "'*"*• 
 other court, as to enable the plaintiff to prosecute 
 or defend an action at law (b) (1), a proceeding 
 
 (b) 5 Madd. 18. ; 
 
 the bill is a bill for relief; and if, without such words, the bill would inaertion of 
 be a mere bill of discovery, it will be demurrable as a bill for relief, birto a^bn'i'*^for 
 
 Ambury v. Jones, 1 Younge, 199 ; James v. Herrintt, 6 Sim. 428. relief in the 
 
 _, prayer of pro- 
 
 But the words " abide such order therein," without the word " de- ceea. 
 
 cree," will not have this effect ; because the word "order" must be 
 considered as meaning such an order as is consistent with the general 
 scope of the case made by the bill, as a mere bill of discovery. Ba- 
 ker V. Bramah, 7 Sim. 17. 
 
 A bill which, besides pravinsf a discovery, prays for a commission Bill for a eom- 
 
 • • , . ■ ., r , , ■ ■ r-, , r mlSSlon tO CX- 
 
 to examine witnesses abroad m aid of the plaintin s defence to an ac- amine witnesses 
 tion, and for an injunction to restrain proceedings in the mean time, is junction.*" '** 
 not a bill for relief. And therefore a demurrer in b'lr of relief to such 
 a bill, without mentioning discovery, is bad. MUls v. Campbell, 2 Y. 
 & C. Eq. Ex. 389. 
 
 (1) A defendant at law may file a bill of discovery, whether the Bill of discovery 
 object of it is to sustain a defence to an action, or rebut the evidence to rcijut cvi- 
 
 • <• 1 • mi I «". /- dence in support 
 
 m support of the action. Glascoll v. The Governor and Company of of enaction. 
 the Copper Miners of England, 11 Sim. 305. 
 
 [A bill of discovery for matters material to the defence of the plain- 
 tiff in a suit at law against him, must state the nature of that defence. 
 It ought to state enough to enable the court to see that the ends of 
 justice require its interposition ; and the facts sought to be discovered 
 should be so far stated as to show their j ertinency and relevancy. 
 M'Intyre v. Mancius, 3 J. C. R. 46 : S. C. on appeal, 16 J. R. 692 ; 
 Gelston v. Hoijt, 1 J, C. R. 543 ; Leggeit v. Postley, 2 Paige's Ch. 
 Rep. 699.] 
 
 In a late case in New-York it was held, that the bill lies, as a ge- 
 neral rule, where discovery is shown to be material in aid of a defence 
 in a suit at law, and it need not aver that complainant cannot other- 
 wise establish his defence at law. The head note of the case of 
 Legget V. Postley, 2 Paige's Rep. 699, contra, is not warranted by the 
 opinion of the court in that respect. It is only necessary to show 
 that the discovery is material to his defence at law, not that it is ab- 
 solutely necessary ; but where he seeks to give jurisdiction to the 
 court of chancery to grant relief upon the ground that a discovery 
 was necessary, and that this court having gained jurisdiction of the 
 
 7
 
 65 FRAME AND END OF THE [ChAP. I. 
 
 before the king in council (c), or any other legal 
 
 (c) 1 Ves. 205. 
 
 cause for that purpose, will retain it for the purpose of doing complete 
 justice between the parties, he must not only show that the discovery 
 is material to his defence at law, but must also allege affirmatively 
 that he cannot establish such defence without the aid of the discovery, 
 and in such case if the bill does not show a discovery is necessary as 
 •well as material and convenient, defendant may demur to the relief 
 sought by such bill. The defendant must answer and make the dis- 
 covery, (even in case of libel suit, where it will not criminate himself 
 or subject him to penalty or forfeiture ; for if so, it would violate the 
 spirit of the constitution, declaring that no one shall be compelled in 
 any criminal case, to be a witness against himself,) although he de- 
 murs to the relief. A similar averment of (he necessity of a discovery 
 in aid of his defence, and sworn to, is necessary, where he asks for 
 injunction to stay proceedings there until answer to the bill. He must 
 in a bill of discovery charge, either on information and belief, or 
 otherwise, that the matters of which he seeks a discovery are true in 
 point of fact, but the omission may be supplied by amendment. 
 (March v. Davhon, 9 Paige's Ch. Rep. 683—6, &c. 680. See Broun 
 V. Swan, 10 Peters, 602, supra, note. Also, Russell v. Clark^s Ex^rs, 
 7 Cranch, same note; and Story's Eq. PI. 4th edit., 5 319, n. 2.) 
 
 After a verdict at law, a party comes too late with a bill for dis- 
 covery. There must be a clear case of accident, surprise or fraud, 
 before equity will interfere. (Id. 504, Brown v. Swan.) 
 
 A mere bill for discovery in aid of a defence of a suit at law, does 
 not concern property, and therefore the amount required (in New- 
 York by statute) to sustain the jurisdiction or " dignity" of the court, 
 (viz. $100) is immaterial. But by introducing a prayer for relief, 
 complainant makes it a suit " concerning property" within the pro- 
 visions of the statute, and if the value is less than $100, the bill must 
 be dismissed with costs. \Idem. 5 Paige, 245 — 8. Goldey v. Becker, 
 1 Edw. V. C. R. 271.) 
 
 As to the right to file a bill of discovery against a partner of a firm 
 after its dissolution, and the effect of his answer on oath as evidence in 
 aid of a defence to a suit at law, the chancellor, in Woods v. Norton, 
 B Paige's Rep. 249, on motion to dissolve injunction, held that such 
 answer would not be evidence ; but Mr. Justice Bronson, in the only 
 opinion given on appeal, Norton v. Woods, 22 Wendell Rep. 524, af- 
 firming the decision of the chancellor, expresses his dissent from the 
 chancellor, no question being taken however thereon, except the ge- 
 neral question of reversal or affirmance of the decree, the point dis- 
 cussed by Judge Bronson as to the right to file a bill of discovery and 
 the effect of such answer, is to be regarded as an open question. (See 
 ibid. 22 Wend. 625. n. 520.) See further, note, infra.
 
 S. III.] SEVERAL KINDS OF BILLS. 65 
 
 proceeding of a nature merely civil (d) before a 
 jurisdiction which cannot compel a discovery on 
 oath (6') ; except that the court has in some instances 
 refused to give this aid to the jurisdiction of in- 
 ferior courts (/) (1). Any person in possession of p.j^^ ^ 
 an estate, as tenant or otherwise, may file a bill '°„"„ '".alnsra 
 against a stranger bringing an ejectment, to dis- p|^'^"j';"^"'^J^<='' 
 cover the title under which the ejectment may be 
 brought (g), though the plaintiff may not claim 
 any title beyond that of a mere tenant or occu- 
 pant (2). A bill of this nature must state the mat- contents there- 
 
 . (d) 2 Ves. 398. (/) 1 Ves. 205. 
 
 (e) Du7m V. Coates, 1 Atk. 288 ; (g) 1 Ves. 249 ; sed qu. note. 
 1 Ves. 205 ; Anon. 2 Ves. 451. 
 
 (1) It has never been decided that a discovery will be enforced by . ., 
 
 , ^, ...riip DiscoTcry m aid 
 
 the court of chancery in aid o; the defence to a suit in a foreign court, of proceedings 
 
 But, at all events, it will not bo enforced where the bill does not state court ""^^'^"^ 
 
 that the plaintiff cannot have a discovery in the foreign court. Bent 
 
 V. Young, 9 Sim. 180. 
 
 (2) The case of Metcalfv. Harvey, 1 Ves. sen. 249, (cited above,) 
 where Lord Ilardwicke appears to have decided that a person in pos- 
 session of an estate, against whom another had brought ejectment, 
 might bring a bill against the plaintiff in that suit, to compel him to 
 discover his title under which he claimed to oust complainant of the 
 premises, has not been followed in England, and is in conflict with de- 
 cisions here, and with Adderley v. Sparrow, cited by Lord Redesdale, 
 (225, [190], infra); Chancellor Kent, in Kimherley v. Sells, 3 Johns. 
 Ch. Rep. 467, decided on the special circumstances without intending 
 to endorse Lord Hardwicke. A party to a suit at law cannot be com- 
 pelled to discover the grounds of his claim therein. The other party 
 ■must resort to his right at law, for a bill of particulars. But com- 
 plainant in a bill of discovery must state a case which shows that the 
 discovery sought is material to the prosecution or defence of the suit 
 at law, whicli he wishes to establisli by the defendant's confessions in 
 answer to his bill ; otherwise the bill will bo regarded as a mere fish- 
 ing bill. It is not sufficient for complainant to allege that the matters 
 as to which discovery is sought are material to the defence in the suit 
 at law, but he must state his case in such a manner in his bill, that 
 the court can see how they may be material. Hence, where complain-
 
 66 FRAME AND END OF THE [ClIAP. L 
 
 ter touching which a discovery is sought, the inte- 
 
 ant filed bill for discovery in aid of a prosecution at law, or rather to 
 aid him to resist a set-off which defendant in a notice to his plea of 
 • general issue had set up, and claiming a discovery of the grounds or 
 particulars of such set-off, without stating a case agreeably to the 
 foregoing principles, that entitle him to the discovery ; a demurrer 
 was sustained on appeal : the court holding, that although in a proper 
 case, a discovery in aid of a prosecution, will be compelled in the 
 same manner and extent as if for defence, yet the bill was defective in 
 not stating a case which shows that the discovery sought is material 
 to resist an illegal or inequitable claim of set-off. {Lane v. Stebbins, 9 
 Paige's Rep. 624—6. 622 ; citing also 3 Johns. Ch. Rep. 47 ; 2 Id. 413.) 
 The court will not aid a landlord to compel discovery from his 
 tenant as to the existence of covenants or conditions in a lease, where- 
 by lessee's estate may have become forfeited. Therefore, where a bill 
 was filed for the purpose of ascertaining whether there might not be 
 something in the original lease, (under which complainant for forty- 
 two years had received a certain rent, but the original lease he had 
 never seen, but without alleging that he ever believed that a greater 
 rent was reserved or stipulated to be paid,) which would entitle com- 
 plainant to claim other or greater rights, in relation to the lot, than 
 those he had been exercising for nearly half a century, it was pro- 
 nounced a fishing bill, and demurrable. (Lansing v. Pine, 4 Paige's 
 Rep. 639.) 
 
 If the facts sought to be discovered, could not, if disclosed, be so 
 used as to support or sustain any title or interest of the complainant, 
 or enable him to sustain any action for any vested interest, the bill 
 cannot be sustained. As where, in Massachusetts, the bill charged a 
 fraud on part of defendant acting as deputy sheriff, and in his own 
 natural capacity ; but the plaintiff did not show sufficient direct in- 
 terest in the subject matter to entitle him to discovery, the court held 
 that over a direct charge of fraud they had no jurisdiction in equity, 
 and that though a fraud incidentally drawn in question, the court hav- 
 ing otherwise jurisdiction would inquire and decide, yet the bill as a 
 bill of discovery, was not sustainable for the reasons given. (Fiske 
 V. Slack, 21 Pick. Rep. 366. 361 ; Holland v. Crufi, 20 Id. 321.) 
 Bill of discove- -^ bill of discovery in aid of a defence to an action cannot be sus- 
 ry agamst a per- tained against a person who is not a party to the record at law, al- 
 
 son not a party e r r J J 
 
 to the record, in though the plaintiff at law is only the agent of such person, and has 
 an action at law. , , ^ . , • , , ,r 
 
 brought the action on his beiialf. 
 
 And hence, where an action is brought by the agent of a foreign 
 
 sovereign on bills of exchange, the acceptors thereof cannot make the 
 
 sovereign a party to a bill of discovery in aid of their defence to such.
 
 S. III.] SEVERAL KINDS OF BILLS. 66 
 
 rest of the plaintiff and defendant in the subject, 
 
 action. The Queen of Portugal v. Glyn, 7 CI. &Fin. 466. And upon 
 the same principle where an action is brought again-t underwriters on 
 a policy of insurance, they cannot make a person not a party to the 
 record at law, a party to a bill of discovery against the plaintiff at 
 law; though they allege that the policy was effected by the plaintiff 
 at law as agent for such other person. Such a practice migiit be 
 made an engine for the oppression of persons alleged to be interested, 
 but in reality not interested in the action ; and where such persons are 
 also out of the jurisdiction, it might also be made a means of delaying 
 and defeating the plaintiff at law. Kerr v. Rew, 9 Law J. (N. S.) 
 148, L. C. 
 
 A bill of discovery cannot be filed against one who is apparently a Discovery not 
 mere witness, and not a real party in interest. For such discovery party^*^ nonuna 
 could not be evidence for another in a suit at law. But under the Usury. 
 New- York usury act, May, 1837, a remedy ait law is given, as the real 
 as well as nominal plaintiff in record may be examined. Where, 
 however, defendants at law had been tricked out of their defence, a 
 bill for discovery and relief is sustainable on ground that they were 
 deceived and defrauded out of such defence. (Post and another v. 
 Board)nan, 10 Paige's Rep. 580.) 
 
 Where two are sued at law on a joint contract, on a demand said to 
 be usurious, but within the knowledge of one of the defendants, the 
 other cannot file a bill for relief to make his co-defendant a witness 
 merely to establish the usury. But where the defence is personal as 
 to one, and can only be established by the testimony of his co-defen- 
 dant, lie may file a bill for relief to obtain his testimony. (Saiage v. 
 Todd, 9 Paige's Rep. 518.) 
 
 Formerly by the usury law in New- York, the usurious contract was 
 absolutely void. If the borrower could prove the usury, it was a com- 
 plete defence at law. If he could not, and was compelled to invoke 
 the aid of equity, by a bill of discovery against the lender, calling on 
 him to admit or deny the usury, he was met by the cardinal maxim of 
 that court, that " he who asks for equity must do equity," and there- 
 fore neither discovery nor relief could be obtained, without a repay- 
 ment of the sum actually lent with lawful interest, and an offer to 
 that effect must have been made in the bill, or it was demurrable. The 
 court guarded that principle, where the bill was for discovery merely, 
 by the additional principle that equity will not coinpei a defendant to 
 answer on oath, and thus become a witness for his adversary against 
 himself, where his answer may subject him to a criminal proceeding, 
 penalty, forfeiture, or loss in the nature of forfeiture. In such case 
 therefore, the borrower was bound to waive the forfeiture and pay the 
 actual loan, not only because it was just and equitable, but to guard
 
 66 FRAME AND END OF THE [ChAP. I^ 
 
 and the right of the first to require the discovery 
 from the other (h). 
 Bills of discove- A bill seeking a discovery of deeds or writings 
 
 ry of documents . T/'/^ii iii 
 
 prayinj; relief somotimes Dravs a reliei, lounded on the deeds or 
 
 jouiided on i. •/ 
 
 them. writings of which the discovery is sought. If the 
 
 relief so prayed be such as might be obtained at 
 law, if the deeds or writings were in the custody 
 
 (Ji) Car dale V. WatUns, 5 Madd. Dick. 652 -,8.0.1 Bro. C. C. 468. . 
 18 ; and see Moodaly v. Moreton, [Jeremy's Eq. Juris. 257.] 
 
 against the possibility of defendants answer being the means oi sub- 
 jecting him to a forfeiture. In some cases, such as bonds with war- 
 rants to confess judgment, and mortgages with power to foreclose by 
 advertisement at law, the holder, from the nature of his security, need 
 not go tt) a court of law or equity to enforce them. The borrower in 
 such cases, (although he could prove the usury without resorting to 
 the oath of the lender,) had no opportunity of setting it up, or availing 
 himself of it at law, and therefore, in such case also, where he was 
 compelled to file his bill and ask relief in equity, although he required 
 no discovery, the court would not relieve him from the usurious excess, 
 excepting on the equitable condition of repaying the sum actually 
 loaned. The Revised iStatutes (New-York) changed the law and 
 circumscribed the original power and authority of the court to impose 
 the above terms as condition of discovery or relief, or both, by exempt- 
 ing a bona fide holder from the operation of the act : by dispensing 
 with the necessity on part of borrower on bill of discovery of paying 
 or offering to pay any interest uhatever on the sum or thing loaned; 
 and by a judicial interpretation of the act in the court of errors, that 
 in the cases above enumerated, wliere the security was of such na- 
 ture as to preclude the borrower from recourse in the first instance to 
 law or equity, as on bond and warrant, or mortgage as mentioned, even 
 where he could prove the usury, and where relief only is asked with- 
 out any discovery from the lender, it shall be granted without requiring 
 the payment of the money loaned. It was but abrogating a particular 
 rule of the court, to give effect to and defeating any evasion of the law 
 for the prevention of usury. By consequence on bill for discovery, 
 the court still requires payment or offer in the bill to pay the principal 
 sum (without interest) ; so also on bill for discovery and relief ; but 
 on bill for relief only, in such cases as those suggested, tlie statute 
 operates in full vigor. {Livingston v. Harris, in error, 11 Wend. 329, 
 on affirmance of S. C. 3 Paige's Rep. 628.)
 
 S. III.] SEVERAL KINDS OF BILLS. 66 
 
 of the plaintiff, he must annex to his bill an affida- 
 vit that they are not in his custody or power, and 
 that he knows not where they are, unless they are 
 in the hands of the defendant (i) ; but a bill for 
 a discovery merely, or which only prays the deli- 
 very ofdeedsorwritings, or equitable relief grounded 
 upon them, does not require such an affidavit (k) (1). 
 
 If the title to the possession of the deeds and ^7° action 'at 
 
 /. J • 1 ,1 1 • .•rr ' J law is necessary. 
 
 writmgs ot which the plamtiii prays possession de- 
 pends on the validity of his title to the property to 
 which they relate, and he is not in possession of 67 
 
 that property, and the evidence of his title to it is 
 in his own power, or does not depend on the pro- 
 duction of the deeds or writings of which he prays ^ ^ 
 the delivery, he must establish his title to the pro- 
 perty at law before he can come into a. court of 
 equity for delivery of the deeds or writings (I). 
 
 II. Bills not original are either an addition to n- Buig not ori 
 
 O ginal. 
 
 or a continuance of an original bill, or both. An 
 
 (t) 1 Ves. 344 ; Hook v. Dorman, 247 ; Whithurch v. Golding, 2 P. 
 
 1 Sim. & Stu. 227. [Executors of Wms. 541 ; 1 Ves. 344; 3 Atk. 132. 
 
 Livingston v. Livingston, 4 Johns. But see Aston v. Lard Exeter, 6 
 
 Ch. Rep. 294. See form of affidavit, Ves. 288. 
 
 1 Grant's Pr. 2d edit. 13.] [See form (Z) See Jones v. Jones, 3 Meriv. 
 
 of bill, Willis, 13. 27; and further on 161; 1 Madd. Rep. 193 ; Crow v. 
 
 this species of bill, p. 185, /)os<.] ' Tyrrell, 3 Madd. 179; Field y. 
 
 (k) Godfrey v. Turner, 1 Vern. Beaumont, 1 Swanst. 204. 
 
 (1) The reason of this distinction is, that in the first mentioned 
 case wliere an affidavit is required, the plaintiff seeks to change the 
 tribuniil, by substituting the proceedings of a court of equity for the 
 less tedious and less expensive procedure of a court of law. 
 
 It seems a party has no right to the production of deeds which re- 
 late alone to the adversary's title. He shall have discovery of so much 
 as reUites to his own, but not pry into that of defendant. But when 
 defendant complies with the prayer for inspection of the deed, without 
 opposition, no difficulty exists on that part of the case. {Thompson 
 V. Eagle et al., 3 Green's Ch. Rep. (N. J.) 275—6. 271.)
 
 67 FRAME AND .END OF THE [ChaP. I. 
 
 whcnnn^cnd- imperfection in the frame of a bill may generally 
 
 mentis not per- i ^ o ^ 
 
 Si9o"'ca8ion be remedied by amendment ; but the imperfection 
 kid.*"" °' *'"* may remain undiscovered whilst the proceedings 
 are in such a state that an amendment can be per- 
 mitted according to the practice of the court (1). 
 
 (1) [Amendments are granted only where there is some defect as to 
 parties, or some omission or mistake of a fact or circumstance connected 
 with the substance of the case, bat not forming the substance itself, 
 or where there is some defect in the prayer for relief. Lyon v. Tall- 
 mage, 1 J. C. R. 184 ; Verplanck v. Mercantile Ins. Co. of N. Y.,l 
 Edwards^ V. C. Reports, 46. See when amendments are allowed in 
 the court of chancery of the State of New- York, Rules 43, 44, 45« 
 60; 2 R. S. 184; Hunt v. Holland, 3 Paige's C. R. 78. But the 
 ordinary rules do not apply to sworn bills. Parker v. Grant, 1 J. C. 
 R. 434 ; Rodgers v. Rodgers, 1 Paige's C. R. 424 ; Whitmarsh v. 
 Campbell, 2 lb. 67 ; and see Beekman v. Waters, 3 J. C. R. 410 ; and 
 Renwick v. Wilson, 6 lb. 81. When a complainant wants to amend 
 a sworn bill, he must state the proposed amendments distinctly, so that 
 the court can see that they are merely in addition to the original bill, 
 and not inconsistent therewith. He must also swear to the truth of the 
 several matters proposed to be inserted as amendments, and render a 
 valid excuse for not incorporating them in the original bill ; and the 
 application to amend must be made as soon as the necessity of such 
 amendment is discovered. Rodgers v. Rodgers, supra ; Whitmarsh v- 
 Campbell, supra ; Verplanck v. Mercantile Ins. Co. of N. Y. supra. 
 Amendments to a bill are always considered as forming part of the 
 original bill. They refer to the time of filing the bill ; and the defend- 
 ant cannot be required to answer any thing which has arisen since that 
 time. Hart v. Everett, 1 Paige's C. R. 124. Consequently, an origi- 
 nal bill cannot be amended by incorporating therein any thing which 
 arose subsequent to the commencement of the suit. This should be 
 stated in a supplemental bill. Stafford v. Howlett, lb. 200. If the 
 cause has progressed so far that an amendment cannot be made, the 
 court will give the complainant leave to file a supplemental bill. And 
 where such leave is given, the court will permit other matters to be in- 
 troduced in the supplemental bill, which might have been incorporated 
 in the original bill by way of amendment. lb. 
 
 After replication, the plaintiff will not be allowed to amend his bill 
 until after he has obtained leave to withdraw his replication ; and the 
 materiality of the amendment, and the reason why it was not stated be- 
 fore, must be satisfactorily shown to the court. [See cases attached to 
 the text.] But if a witness has been examined, the pleadings cannot
 
 S. III.] SEVERAL KINDS OF BILLS. 67 
 
 This is particularly the case where, after the court 
 has decided upon the suit as framed, it appears 
 necessaiy to bring some other matter before the 
 court to obtain the full effect of the decision ; or, 
 before a decision has been obtained, but after the 
 parties are at issue upon the points in the original 
 bill, and witnesses have been examined (in which 
 case, the practice of the court will not generally 
 permit an amendment of the original bill) (in), 
 
 • 
 
 (?n) See Chap. 4. An amend- Sim. &Stu. 40; or to correct a mere 
 
 ment for the purpose of adding par- clerical error, Att. Gen. v. Newcomhe, 
 
 ties, Anon. 2 Atk. 15; 3 Atk. 111. 14 Ves. 1, will be allowed at the 
 
 371, and Palk v. Lord Clinton, 12 hearing of the cause. In the case 
 
 Ves. 48 ; Daws v. Benn, 1 Jac. & of an infant complainant, this liberty 
 
 W. 513 ; Wellheloved v. Jones, 1 it seems would be granted without 
 
 be altered or amended, unless under very special circumstances, or in 
 consequence of some subsequent event except, for the purpose merely 
 of adding parties. Thorn v. Germond, 4 J. C. R. 363. After publica- 
 tion passed, and the case is set down for hearing, the plaintiff will not be 
 allowed to amend his bill, by adding new charges ; but he may file a 
 supplemental bill on payment of costs. Shepherd v. Merrill, 3 J. C. R. 
 423 ; and see page 62, ante, and notes there. A second amendment to 
 a bill was refused, after an answer by one defendant, and a plea by ano- 
 ther, who was surety, and the plea allowed and the bill as to him dis- 
 missed, and a motion for rehearing granted, after eighteen months had 
 elapsed from the first amendment, and no new evidence since acquired ; 
 and the second amendment being substantially the same as the firsti 
 though more directly charging the defendants with fraud. Kirby v. 
 Thompson, 6 J. C. R. 79. 
 
 Amendments by merely adding parties have been allowed at almost 
 every stage of a cause. See amendments of a formal part allowed 
 after a demurrer. M'llvaine v. Willis, 3 Paige's C. R. 605. 
 
 A complainant cannot, as of course, amend his answer by leaving out 
 the name of defendant. Chase v. Dunham, 1 Paige's C. R. 572. Nor 
 can one defendant be struck out on motion of another, without notice. 
 Livingston v. Ogden, 4 J. C. R. 94. 
 
 As to office practice and service upon amendments, see Luce v. Gra- 
 ham, 4 J. C. R. 170 ; Beekman v. Waters, 3 lb. 410 ; Renwick v. WiU 
 son, 6 lb. 81 ; Bennington Iron Co. v. Campbell, 2 Paige's C. R. 159 ; 
 Hunt V. Holland, supra. ; Rules 43, 44, 45. 60, of New- York Chancery.]
 
 68 FRAME AND END OF THE [ChAP. L 
 
 [56] some other point appears necessary to be made, 
 or some additional discovery is found requisite (n). 
 And though a suit is perfect in its institution, it 
 may by some event subsequent, to the fihng of the 
 original bill become defective, so that no proceed- 
 ing can be had, either as to the whole, or as to some 
 part, with effect ; or it may become abated, so that 
 there can be no proceeding at all, either as to the 
 whole, or as to a part of the bill. The first in the 
 case when, althougli the parties to the suit may 
 remain bef(5re the court, some event subsequent to 
 the institution of the suit has either made such a 
 change in the interests of those parties, or given to 
 some other person such an interest in the matters 
 in litigation that the proceedings, as they stand, 
 cannot have their full effect. The other is the case 
 when, by some subsequent fivent, there is no per- 
 son before the court by whom, or against whom, 
 the suit, in the whole or in part, can be prosecuted. 
 It is not very accurately ascertained in the books 
 ^9 - of practice, or in the reports, in what cases a suit 
 
 L*^'J becomes defective without being absolutely abated; 
 and in what case it abates as well as becomes de- 
 restriction, if for his benefit, Pritch- proposed alteration, but also that he 
 ard V. Qwinchnnt, Ambl. 147 ; and was not in a condition to have made 
 even in ordinary cases great indiil- it earlier. See Longman v. Calli- 
 gence has in this respect been shown, ford, 3 Anstr. 807; Forrest, Exch- 
 See Filkin v. Hill, 4 Bro. P. C. 640 ; Rep. 13 ; Lord Kilcourcy v. Ley, 4 
 Toml. Ed. ; Palk v- Lord Clinton, Ma.dd.212; Dean of Christchurch v. 
 .12 Ves. 48 ; Woollands v. Crowcher, Simonds, 2 Meriv. 467 ; Wright v. 
 12 Ygs. 114; Hamilton V.Houghton, Howard, 6 Madd. 106 ; M' Neill v. 
 2 Bligh. P. C. 169. And with regard Cahill, 2 Bligh, P. C. 228. See Bar- 
 to the practice before the hearing, it nett v. Noble, 1 Jac. & W. 227. 
 . may be observed, that after the cause (w) See Jones v. Jones, 3 Atk» 
 
 is. at issue this court will not give the 110; Goodwin v. Goodwin, 3 Atk^ 
 plaintiff leave to amend, unless he 370. 
 shows not only the materiality of the
 
 S. III.] SEVERAL KINDS OF BILLS. 69 
 
 fective. But upon the whole it may be collect- 
 ed (o), that if by any means any interest of a party hi^s^KmTdt 
 
 . . , .,..., J fective by a 
 
 to the suit m the matter m litigation becomes vested transfer of an 
 
 '^ _ interest. 
 
 in another, the proceedings are rendered defective 
 in proportion as that interest effects the suit ; so 
 that although the parties to the suit may remain 
 as before, yet the end of the suit cannot be obtain- 
 ed (7?) (1). And if such a change of interest is cI^Tabate'd^^y 
 
 , , . , r» 1 1 1 *'"' death- or 
 
 occasioned by, or is the consequence or, the death mania^c of tho 
 
 of a party whose interest is not determined by his 
 death, or the marriage of a female plaintiff, the pro- 
 ceedmgs become likewise abated or discontinued, 
 either in part or in the whole (2). For as far as 
 
 (o) It is impossible to give authori- cases it will be found, that, in gene- 
 ties for every thing asserted upon this ral, the grounds of the decisions war- 
 head. The books, in words, almost rant the conclusions iiere drawn. . 
 as frequently contradict as support (p) As an example, see Mole v 
 these assertions.* But it is conceived, Smith, 1 Jac. & W. 665. 
 that from an attentive perusal of the 
 
 (1) Where the interests of new parties intervene pendente lite, hav* 
 ing derivative titles under plaintijjf, the suit may abate or become de- 
 fective, though it would or might be different in case of derivative 
 titles under the defendant pendente lite. But the nature of an abate- 
 ment in equity, is not necessarily a destruction of the suit as at law, 
 where judgment quod cassetur is entered, but merely an interruption 
 of the suit, suspending proceedings until the new parties are brought 
 in, and if not done in proper time, the court will dismiss the suit. 
 But in any case of a purchase or tranf=fer of interest, pendente life, the 
 proper parties may be. brought before the court, and the cause be per- 
 mitted to stand over, to allow a supplemental bill to be filed by or 
 against the purchasers. The general rule is that all persons in in- 
 terest must be made parties. But the omission is not necessary cause 
 of abatement of the suit. Ti>at can arise only from matters subse- 
 quent to the bill. It may be ground at hearing for a dismission of the 
 bill without prejudice, for want of proper parties, or for an order that 
 bill stand over to make new parties, with leave to file a supplemental 
 bill. Huxie v. Carrel al, 1 tSumncr's Rep. 177—9. 173. 
 
 (2) [Where a party who has not been served with a subpoena, nor 
 appeared, dies, his death is no abatement of the suit, and, consequently.
 
 69 FRAME AND END OF THE [ChaP. I. 
 
 the interest of a party dying extends, there is no 
 longer any person before the court Ijy whom or 
 against whom the suit can be prosecuted ; ancl a 
 married woman is incapable by herself of prosecu- 
 ting a suit. As the interest of a plaintiff generally 
 extends to the whole suit, therefore, in general, 
 upon the death of a plaintiff, or marriage of a fe- 
 male plaintiff, all proceedings become abated (^)(1). 
 
 (g) 1 Eq. Ca. Ab. 1, margin ; Dick. 8 ; Adamson v. Hull, 1 Sim. & Stu. 249- 
 
 there can be no revivor. Nor can a plaintiff have the benefit of the 
 proceedings in the suit against the executor or administrator of the 
 deceased ; for the intestate was never an effective party to the suit, nor 
 bound by the proceedings. A bill, under these circumstances, is, 
 strictly speaking, original as to the executor or administrator, though 
 supplemental as to the other parties, and would require the representa- 
 tive of the deceased to answer the original bill as well as the supple- 
 mental matter, and pray the distinct relief to which the plaintiff con- 
 sidered himself to be entitled against ^uch executor or administrator. 
 Such a bill would fail, if a general demurrer were put in by the repre- 
 sentative : upon the ground that the plaintiff wq,s not entitled to revive 
 the suit, nor to have any benefit of the proceedings against him. Asbee 
 V. Shipley, Geldart & Madd. 296.] 
 
 The suit abates even after decree, by marriage of a female com- 
 plainant, and must be revived in favor of, or against her husband, before 
 futther proceedings can be had, except to set aside the irregular pro- 
 ceedings had, interim, in master's office. But decree of court of er- 
 rors affirming decree of chancery, after marriage of female complain- 
 ant, must be carried into effect here, after the proper parties are brought 
 in. But the marriage of a female defendant, pending suit, does not 
 abate it. There an order is all that is necessary, that the suit proceed 
 • against her, by her new name in connexion with that of her husband. 
 (See pp. 83, note, 84, note, infra.) When suit continues in name of 
 female complainant after marriage, without her husband being made 
 party, she will not be bound by the decision in the cause, if adverse to 
 her interest: although defendant would be bound by a decree in her 
 favor, and could not after, urge the objection that the suit had abated 
 by her marriage. {Quackenhush v. Leonard, 10 Paige's Ch. Rep. 
 133—4. 131.) 
 
 (1) [But an injunction is neither inoperative nor abated by the 
 abatement of a suit. But the rule is, that if the suit abates by the
 
 S. III.] SEVERAL KINDS OF BILLS. 69 
 
 Upon the death of a defendant, likewise, all pro- „' a defend^f" 
 ceedinffs abate as to that defendant. But upon the [P^j '^ 
 
 ^ ^ _ Where they do 
 
 marriage of a female defendant the proceedings ^ot abate; 
 do not abate (r), though her husband ought to be 
 named m the subsequent proceedings (s) (1). If teMs/^^te/-"*' 
 the interest ot a party dyuig so determmes that it 
 can no longer affect the suit, and no person be- 
 comes entitled thereupon to the same interest, 
 
 (r) 4 Vin. Ab. 147 ; PI. 20 ; 1 withstanding, proceeded in a suit as 
 
 Vern. 318. a feme sole, the mere want of a bill 
 
 (s) 1 Vee. 182. The reason of the of revivor is not error for which a 
 
 difference between the cases of a fe- decree can be reversed upon a bill of 
 
 male plaintitF and defendant seems review brought by the defendant. 
 
 to be, that a plaintiff seeking to ob- Lady Cramborne v. Dalmahoij, 1' 
 
 tain a right, the defendant may be Chau. Rep. 231 ; Nels. Rep. 86. 
 
 injured by answering to one who is " And at law, if a woman sues or be 
 
 not entitled to sue for it; but a de- sued as sole, and judgment is against 
 
 fendant merely justifying a posses- her as such, though she was covert, 
 
 sion, the plaintiff cannot be injured she shall be estopped, and the sheriff 
 
 by a decree against the person hold- shall take advantage of the estop- 
 
 ing that possession. And it has been pel." 1 Salk. 310 ; 1 Rol. Ab. 869, 
 
 determined, that where a female 1. 50. 
 plaintiff has married, and has, not- 
 
 death of either of the complainant or defendant, the party against 
 whom the injunction issued, or his representatives, may have an order 
 requiring the complainant or liis representatives to revive within a 
 stated time, or that the injunction be dissolved. Where a suit abates 
 by the death of the complainant, those who succeed to his rights may 
 apply to the court to punish a breach of an injunction which has taken 
 place either before or after his death, as soon as they have taken the 
 preliminary steps to revive the suit either by filing a bill of revivor or 
 otherwise ; and it is not necessary for them to wait until a decree of 
 revivor is actually obtained. liawley and others. Trustees, <^c. v. Ben- 
 netl, Paige's Ch. Rep. 163.] 
 
 If on death of husband of a female plaintiff suing in her right, the 
 widow do not choose to proceed, the bill abates, and she is not liable 
 for costs. See on this, Story Eq. Pi. ^ 361, n, 1 ; the comment on this 
 subject in Cooper Eq. PI. 66 — 67, there quoted, and GraiU v. Van 
 Schoonhnien, 9 Paige'a Rep. 255. 
 
 (1) [And if she lias answered, the husband is bound by it. 1 Harr. 
 Prac. 296, (6th edit.) ; and see Gary, 81.]
 
 70 FRAME AND END OF THE [ChAP. I. 
 
 which happens in the case of a tenant for life, or a 
 person having a temporary or contingent interest, 
 or an interest defeasible upon a contingency, the 
 suit does not so abate as to require any proceeding 
 to warrant the prosecution of the suit against the 
 remaining parties ; but if the party dying be the 
 only plaintiff, or only defendant, there may be ne- 
 
 or where it siir- ., i/'i • i- /»!•• 
 
 vives as In the cessarilv au end of the suit, no sub ect oi liticration 
 
 case of the death J 'J O ^ 
 
 or co-'ex*e™uto''r! remaining. If the whole interest of a party dying 
 bandof a'^femafe survivos to auothcr party, so that no claim can be 
 
 plaintiff, or of ■■ , . , . /» i . 
 
 persona suing on madc bv or asfauist thc representatives oi the party 
 
 behalf of them- -. "^ ° J- . ^ V 
 
 Behes and oth- dyiug, as, if a bill is filed by or against trustees or 
 [59] executors, and one dies not having possessed any 
 
 71 of the property in question, or done any act rela- 
 ting to it which may be questioned in the suit, or 
 by or against husband and wife, in right of the 
 wife, and the husband dies under circumstances 
 which admit of no demand by or against his repre- 
 sentatives (f), the proceedings dp not abate. So 
 if a surviving party can sustain the suit, as in the 
 
 ^ case (u) of several creditors (3), plaintiffs on be- 
 
 {t) Dr.. Parry v. Juxon, 3 Chan. (m) As another example of the 
 
 Rep. 40 ; 2 Freem. 133 ; Shelberry proposition in the text, the c^se of a 
 
 V. Briggs, 2 Vern. 249 ; Anon. 3 suit by joint-tenants generally, may 
 
 * Atkyns, 726. &e4 Humphreys v. he mentioned. (2) See 11 Ves. 309 ; 
 
 Hollis, 1 Jac. R. 73. (1) 1 Meriv. 364. 
 
 (1) [M'Dowl V. Charles, 6 J. C. R. 132 ; and see 2 R. S. 184, 185 ; 
 
 Vaughan v. Wilson, 4 Hen. & Munf. 453 ; Coppin v. , 2 P. 
 
 Wms. 496; Bond v. Simmons, 3 Atk. 21. But if she dies, it will' 
 abate. The death of the wife, when they sue for what they have a 
 joint right to, shall not abate the suit ; for the whole interest survives 
 to the hushand. Piers v. Kawse, Gary, 88. 169 ; Shelberry v. Briggs, 
 2 Vern. 249 ; and see Doidin v. M'Dougall, 1 S. & S. 367.] 
 
 (2) [If two joint tenants exhibit their bill and one releases, this will 
 not abate the suit as to the other. 2 Freem. 6.] 
 
 (3) [And see Edwards on Parties, 169, pi. 75. A creditor who has 
 been permitted to come in, may revive in cases where the suit abates. 
 Pitt V. Creditors of D. of Richmond, 1 Eq. Ca. Abr. pi, 7.]
 
 S. III.] SEVERAL KINDS OF BILLS. 71 
 
 half of themselves and other creditors (x). For 
 the persons remaining before the court, in all these 
 cases, either have in them the whole interest in the 
 matter in litigation, or at least are competent to 
 call upon the court for its decree. If, indeed, 
 upon the death of a husband of a female plaintiff 
 suing in iier right, the widovi^ does not proceed in 
 the cause, the bill is considered as abated, and she 
 is not liable to the costs (3/). But if she thinks 
 proper to proceed with the caiLse, she may do so 
 without a bill of revivor ; for she alone has the 
 whole interest, and the husband was a party in 
 her right, and therefore the whole advantage of the 
 proceedings survives to her ; so that if any judg- 
 ment has been obtained, even for costs, she w ill be 
 entitled to the benefit of it (z). But if she takes [^] 
 any step in the suit after her husband's death she 
 makes herself liable to the costs from the.beoinninof. 
 If a female plaintiff marries pending a suit, and 72 
 
 afterwards, before revivor, her husband dies (a), a 
 bill of revivor becomes unnecessary, her incapacity 
 to prosecute the suit being removed ; but the sub- 
 sequent proceedings ought to be in the name and 
 with the description which she has acquired by the 
 marriage. A decree on a bill of interpleader may or ^^ere the 
 
 ^ A . •' plaintiflin an in- 
 
 terminate the suit as to the plaintiff, though the ^"^1^^*^= ''^* 
 Htigation may continue between the defendants by 
 interpleader (h) ; and in that case the cause may 
 
 (x) 1 Meriv. 364 ; Burney v. Mor- (z) Coppin v. , 2 P. Wnis. 
 
 gan, 1 Sim. & Stu. 358 ; 1 Sim. & 496. 
 
 Stu. 494, 495. (a) Godkin and others v. Earl 
 
 (y) Treat, on Star Chamb. p. 3, Ferrers, 1772. 
 sect. 3 ; Harl. MSS. (t) See above, p. 60, note (n).
 
 75 FRAME AND END OF THE [ChAP. I» 
 
 proceed without revivor (c), notwithstanding the 
 death of the plaintiff (^Z) (1). 
 
 There is the same want of accuracy in the books 
 in ascertaining the manner in which the benefit of 
 a suit may be obtained after it has become defec- 
 tive, or abated by an event subsequent to its insti- 
 [61] tution, as there is in the distinction between the 
 
 (c) Anon. 1 Vern. 351. see Blackburn v. Jepson, 17 Ves. 
 
 (rf) Wliere on a bill filed by a 473 ; S. C. 3 Swanst. 132. But 
 corporation aggregate, suing in their where a bill is filed by a corporation 
 corporate capacity only, the names sole, having a personal interest, the 
 of the persons forming the same had suit necessarily abates by his death, 
 been inadvertently and unnecessarily so far as it affects his personal inter- 
 inserted, the members of the corpora- est, and to that extent may be ra- 
 tion having had individually no inter- vived by his personal representative ; 
 est in the subject, the death of a and if the suit affect the rights of his 
 person so improperly named in the - successor, such successor may obtain 
 bill was not considered as operating the benefit of it in a different form, 
 to abate the suit, 3 Swanst. 138 : and 
 
 " (1) [If a mortgagor brings a bill to redeem, after an account is de- 
 creed, report made, and divers proceedings are had in the cause, and 
 the plaintiff is ordered to pay costs and deliver possession, and also 
 afterwards the defendant, a mortgagee, dies, his executors may revive 
 the suit and have the benefit of the order for costs. This vv^as de- 
 cided in Slowell v. Cole, 2 Vern. 396. But see the particulars ff the 
 case, for they were, in some respects, special. The heir of a party 
 may revive. 1 Harr. P. 299, (6th edit.) Although by the death of 
 the cestui que trust the suit abates as to him, yet, if there be a decree 
 against him and his trustees to convey, &c., the trustees are obliged 
 to convey, for the death of either party makes an abatement only quoad 
 himself. lb. 297. Where there is a decree for an account, and then 
 the cause abates by the defendant's death, the general practice allows 
 the representative to revive, as well as the plaintiff, both being in the 
 nature of plaintiffs. Kent v. Kent, Prec. in Ch. 197. 
 
 When the contest relates to real estate and is between joint heirs, 
 and one dies without issue or will, leaving the others his heirs, no re- 
 vivor is necessary. It is otherwise in cases of personalty, which passes 
 to representatives. Shields v. Craig's Ex'rs, 6 Monroe's Rep. 743.] 
 
 Bill for discovery merely cannot be revived after answer and dis- 
 covery. The object is obtained and plaintiff has no motive for reviving 
 it. Hosburgh v. Baker, 1 Peters, 236.
 
 S. III.] SEVERAL KINDS OF BILLS. 72 
 
 cases where a suit becomes defective merely, and 
 where it hkewise abates. It seems, however, clear, 
 
 "TO 
 
 that if any property, or right in litigation, vested in 
 a plaintiff, is transmitted to another, the person to 
 whom it is transmitted is entitled to supply the 
 defects of the suit, if become defective merely, and 
 to continue it or at least to have the benefit of it, if 
 abated (1). It seems also clear, that if any pro- ll^^'l;^'^^^^^^, 
 perty or right, before vested in a defendant, be- ^^,'^^^^f ^^ 
 comes transmitted to another, the plaintiff is en- 
 titled to render the suit perfect, if become defec- 
 tive, or to continue it, if abated against the person 
 to whom that property or right is transmitted. 
 
 The means of supplying the defects of a suit, Bywhatbuia. 
 continuing it if abated, or obtaining the benefit of 
 it, are, 1, by supplemental bill ; 2, by bill of revivor ; 
 S, by bill of revivor and supplement ; 4, by original 
 bill in the nature of a bill of revivor ; and 5, by ori- 
 ginal bill in the nature of supplemental bill. The 
 distinctions between the cases in which a suit may 
 be added to, or continued, or the benefit of it ob- 
 tained, by these several means, seem to be the fol- 
 lowing : 
 
 1. Where the imperfection of a suit arises from supplemental 
 a defect in the original bill (2), or in some of the 
 
 (1) {Deas V. Thome, 3 Johns. Rep. 643.] 
 
 (2) A defect in a suit for a specific performance of a purchase con- ^applying ade- 
 tract is not supplied by a supplemental bill in a subsequent suit, in- nal suit. 
 Blituted before a decree in such subsequent suit, by a person claiming 
 
 to be entitled to the purchase money. Call'll v. Corrall, 1 Hare, 216. 
 
 If ci . i_ 11 • ■ ■ jcc t I . • . B'll inconsistent 
 
 If a person files two bills in succession, in dinerent characters, against with a prior bill, 
 the same party, and the statements in the subsequent bill are inconsis- cess^ry'^tis'toTe 
 tent with the statements in the prior bill, they will be both dismissed considi<red sup- 
 
 , . ploiuental. 
 
 although in the subsequent bill the principal inconsistent statement in 
 the prior bill is alleged to be erroneous, and although there is a prayer, 
 
 8.
 
 74 
 
 FRAME AND END OF THE [CnAP. I. 
 
 M^d''tfme^b7°^' proceedings upon it, and not from any event sub- 
 
 fiiinaiiicsame. g(3qu^nt ^o tlio institution of the suit (1), it nnay be 
 
 added to by a supplemental bill merely (<?) (2). 
 
 (c) As a general rule, it has been laid 
 down, thai events which have happen- 
 ed eubspquently to the filing of the 
 original bill ought not to be made the 
 subject of amendment, but tiiat they 
 should be brought before the court by 
 a^ supplemental bill. Humphreys v. 
 Humphreys, 3 P. Wms. 349 ; Brown 
 V. Higden, 1 Atk. 291 ; 3 Atk. 217 ; 
 
 Pilldvgton V. Wigvell, 2 Madd. R. 
 240 ; Ushorne v. Baker, 2 Madd. R. 
 379. (2) See a very peculiar case on 
 this subject, in which the plaintiff, 
 npon facts stated in the answer of 
 the defendant, amended his bill in 
 order to meet the defence vchich 
 arose therefrom. Knight v. Matthews, 
 1 Madd. R. 566. -^ 
 
 Supplemental ' 
 bill in respect of 
 matters occur- 
 red since the 
 filing of the ori- 
 ginal bill. 
 
 Snpplemental 
 bill iig:ainst the 
 persfjnal repre- 
 sentative of a de- 
 fendant who 
 died without ha- 
 Ting appeared. 
 
 Snpplemental 
 bill. 
 
 that such subsequent bill nriRy, if neces.?ary, be considered supplemen- 
 tal to the prior suit. Blackburn v. Staniland, 9 Jur. 1027. 
 
 (1) Where there is a trmsfer of interest pending suit, a supple- 
 mental bill may be filed against the purchaser. (Hoxie v. Car el al., 1 
 Sumner's Rep. 178. 173. See further, p. 69, note, supra.) 
 
 Where an original bill is filed for a dissolution of a partnership on 
 the ground of misconduct, other acts of misconduct occurred subse- 
 quently to the filing of the original bill should ha made the subject of 
 a supplemental bill. And where new matter which occurred subse- 
 quently to the filing of the original bill is introduced by amendment, 
 this objection may be taken by the defendant even in his answer, if 
 he insists on the same advantage as if he had demurred or pleaded 
 thereto. Wray v. Hutchinson, 2 M. & K. 235. 
 
 When one of the defendants to an original bill dies without having 
 appeared to it, the proper course is to bring his personal representative 
 before the court by a supplemental bill ; and if there are no new facts, 
 except the fact of his dtath, to be brought before the court, and his 
 death does not alter the interest of any of the other defendants, it is 
 not necessary to make them parties to such bill. Collins v. Collins, 6 
 Jur. 49, V. C. E. 
 
 (2) [Sanders v. Frost,' 5 Pick. Rep. 275; Barjieldv. Kelly, 4 Russ. 
 355 ; King v. Sullock, 2 Sim. 469 ; Candler v. Pettit, 1 Paige's Ch. 
 Rep. 168.] ,^ 
 
 A strictly supplemental bill is always founded on facts that occur since 
 the filing of the bill. These may be necessary to aid complainant in 
 obtaining the relief sought, or new or additional relief. It is laid down 
 as a rule in Candler v. Pettit, 1 Paige's Ch. Rep. 169, if the original 
 bill entitles complainant to one kind of relief, and the facts subse- 
 quently occur to entitle him to other or more extensive relief, he may 
 have such relief by setting out the new matter in the form of a^sup-
 
 S. III.] SEVERAL KINDS OF BILLS. 74 
 
 Thus a supplemental bill may be filed to obtain a [62] 
 
 pli^menUl bill. It may be, this principle is stated too broadly. But 
 the court will not permit a party tn tile two original bills, and carry on 
 two suits for the sane debt; {Eager w. Price, 2 Paige's Rep. 333.) 
 The pxp'^nse of an o iginal is rnucti gieater than a supplemental bill, 
 and tl.« latter "shuuld be used when it can equally subserve the purposes 
 of j istlL-e. Hence a mortgagee,, who filed an injunction bill to stay 
 waste, may by supplemental bill, after debt falls due, pray the addi- 
 tional relief of a foreclosure and sale of the mortgaged premises. 
 {Allen V. Taylor el al, 2 Green's Ch. Rep. (New Jersey,) 436—7, 435.) 
 
 Jf a bill be entirely defective, a suppleinental bill founded on subse- 
 quent facts, cannot aid it. But if ihere is any ground to sustain it 
 ev^n for temporary relief, the court having possession of the cause 
 may retain it for the more general and important" purposes of the bill, 
 and allow a supplementnl bilJ to be fi ed. {Edgar v. Clevergtr, 2 
 Green's (New Jersey) Ch. Rep. 2'il — 2. 238.) And see cases supra, 
 1 Paige's Rep. 200. IKS, and p. 76, nnte, infra. 
 
 [VViicre much expense has been incurred in the suit, and it appears 
 defective in the form at the hearing, the court will direct the cause to 
 stand over, with liberty to file a supplemental bill to correct the 
 form. .Mutter v. Chauiel, 5 Russ. 42] 
 
 So, if on hearing, it appear that tlie proper parties are not in, com- 
 plainant may be permitted to file a supplem.ntal bill to bring before 
 the court the iit'ce>sary parties ; as, on bill by heirs at law against 
 exicut rs, for account and distribution, to ascertain, contribute, and 
 pay legacies, &c., complainants may have the proper parties before 
 • the court to enable them to have an account of all the legacies which 
 are still a charge on the real estate, and will be pennitlltd to file such 
 bill ; or, they may take a reference to take such account on procuring . 
 the written agreeim nt or consent of the per.-onal representatives of 
 the deceased egatees to come in be ore the master and litigate their 
 claims, and to be bound by such decree as may be made in the cause, 
 in the same manner as if t'ey were originally made parties. {Jznkins 
 V. Freyer, 4 I'aige's Rep. 62. 47.; tSee turiher to parties, note, infra. 
 
 A supplemental bill cannot be filed to an original bill, on which no 
 Bubpoenas have been terved. {Steuari v. Nichols, Tamlyn, 307.) 
 
 It IS filed on leave. But the irregularity of filing it without, will 
 be deemed waived; it has been held, by voluntary app 'arance and 
 demurrer. {AUtnv. Taylor, 2 Green's Ch. Rep. (New Jersey) 437. 435.) 
 
 But in Pedrick v. While elai, 1 Metcalf's Rep. (Mass.) 76—9, on 
 demurrer to su, plemental bill filed of cour>e, alter issue, proofs and 
 publication, the court say, that it must be filed by leave of the court 
 on Eutficient tause shown; that the fil ng it alter cause at issue 
 and publication of evidence passed, mi^ht lead to great delay and
 
 74 FRAME AND END OF THE [ChAP. I. 
 
 further discovery (/) from a defendant, to put a 
 new matter in issue, or to add parties, where the 
 proceedings are in such a state that the original bill 
 
 75 cannot be amended for the purpose (g) (1). And 
 
 (f)Boeve v. Skipwith, 2 Ch. Rep. (g) Goodwin v. Goodwin, 3 Atk. 
 142; Usborne v. Baker, 2 Madd. R. 370. There is the form of a bill of 
 379. this nature in 1 Pres. Prac. of X^han. 
 
 146. 
 
 abuse, and operate as a means of evading many of the salutary 
 rules, requiring parties to set forth their full grounds, and procure all 
 the evidence they respectively rely upon be'^ore publication. In order 
 to lay the foundatioti for filing it, it ought to be shown to the satisfac- 
 tion ef the court, either, 1. That the matter relied on as supplemental, 
 lias arisen since the commencement of the original suit; or 2. That 
 the facts relied on have first come to plaintiff's knowledge, or have 
 been made known to him in such a manner that he could avail him- 
 self of them, since the cause has passed the stage in which he 
 might have had leave to amend ; or 3. That the plaintiff has been 
 prevented, through inadvertence, misapprehension on the part of him- 
 self, or his agents or counsel, or by some other cause satisfactorily 
 shown, from availing himself of the matter proposed to be introduced 
 by his supplemental bill, at an earlier stage of the cause. The bill 
 must be confined to such matter and be verified by affidavit, or other 
 satisfactory proof. Whether the objection to a bill filed without leave, 
 should be by demurrer or motion to dismiss, was a question not de- 
 cided in this case, because the plaintiff moved for leave to file such 
 '^ bill, and the court considered it not too late, if sufficient cause were 
 shown, to sustain it. lb. 
 
 [A supplemental bill ought to be filed as soon as the new matter 
 sought to be inserted therein is discovered. And if the party proceeds 
 to a decree after the discovery of the facts upon which the new claim 
 is founded, he will not be permitted afterwards to file a supplemental 
 bill in the nature of a bill of review founded on such facts. Pendle- 
 ton v. Fay, 3 Paige's Ch. Rep. 204.] 
 
 So, where complainant at the coming in of defendant's answer 
 is apprized of a stranger's interest in the subject of the suit, and awaits 
 until decree, he will not be permitted to bring him before the court by 
 supplemental bill. Quackenbush v. Leonard, 10 Paige's Rep. 133 — 4. 
 131. 
 Supplemental 0) ^^ ^ plaintiff, when his cause is in such a state that he cannot 
 
 bill to put in ia- amend his bill, discovers new matter which may tend to show that he 
 
 •ue matters 
 
 which it ia too is entitled to the relief prayed by his bill, he may file a supplemental
 
 S. III.] SEVERAL KINDS OF BILLS. 75 
 
 this may be done as well after as before a decree ; 
 
 bill for the purpose of puttlnff the new matter in issue. Crompton v. Jateto introduce 
 
 ■^ "^ ° by amendment. 
 
 Womhwell, 4 Sim. 628, 
 
 But a supp'emental bill cannot be filed to put in issue matter which, Supplemental 
 
 11 1 1. 1 .11 /. 1 . • 1 .. • bill to put in is- 
 
 although not discovered till after the orig;inal cause, was at issue, g^g matter 
 might have been introduced into the original bill by amendment, by ^^^'e hee"n 'ntro- 
 leave of the court. Colchmgh v. Evans, 4 Sim. 76. Dias v. Merle, ducedbyamend- 
 4 Paige, 263. If so filed, defendant should ohject by demurrer, plea, 
 or answer. (Fullon Bank v. Ni^w- York and Sharon Canal Co. 4 
 Paige's Ch. Rep. 131. 127.) Videirifra. 
 
 But after an ori^'inal cause is at issue, the complainant may some- 
 limes file a supplemental bill, in the nature of a bill of discovery, to 
 obtain evidence in support of the matters put in issue in the original 
 suit, of which evidence he was not apprized at the time of filing his 
 replication. But that is strictly a bill of discovery in aid of the origi- 
 nal suit, and should not pray relief. Tlie complainant obtaining the 
 discovery on such a bill, pays defendant's costs as in other bills for dis- 
 covery merely. The bill in such cases is in the nature of a supple- 
 mental suit for a discovery, rather than a supplemental bill in the 
 original suit. Where, however, no occurrence has taken place to 
 change the rights of parties tince the original suit was commenced, 
 the rule in 4 Sim. 76, el supra, prevails. Complainant cannot after issue 
 file the bill to put in issue new facts that might have been, introduced 
 by amendment, although he allege they were unknown. The proper 
 course where proofs have not been taken, is to app'y for leave to with- 
 draw his replication and to amend his bill. Dias v. Merle, Id. 262 — 3. 
 259. 
 
 Where by inadvertence a necessary party has not been brought be- Supplemental 
 fore the court, and the suit is in that stage that the plaintiff cannot purty. 
 amend iiis bill, he may file a supplemental bill for the purpose of sup- 
 plying the defect. Semple v. Price, 10 Sim. 238. 
 
 And where liberty is given at the hearing to amend a bill by adding 
 a new party, the plaintiff may bring such new party before the court 
 by a supplemental bill, instead of by amendment. And such supple- 
 mental bill may be filed against the new party alone ; for as both suits 
 will come on for hearing together, a decree may be made between the 
 defendants to the two suits, although they are not parties to the same 
 record. Greenwoodv. Atkinson, 5 Sim. 419. 
 
 And the plaintiff may incorporate in such bill any other matter 
 which might, independently of the order to amend, be the subject of a 
 suppl mental bill. Wood v. Wood, 4 Y. &. C. Eq. Ex. 135. See 
 note, supra. 
 
 [Where a. complainant amends his bill by a supplemental one, in
 
 75 FRAME AND END OF THE [ChAP. I. 
 
 and the bill may be cither in aid of the decree, that it 
 
 76 may be carried fully into execution (h), or that pro- 
 per directions may be given tipon some matter 
 omitted in the original bill (?) (1), or not put in is- 
 
 (h) Woodward v. Woodward, cree. See Giffard v. Hort, 2 Sch. & 
 . Dick. 33. Or it may be filed for the Lefr. 386. 
 purpose of appealing against the de- (i) 3 Atk. 133. 
 
 order'to brinor other parties before the court, he need not make the de- . 
 
 fendants in ttie original bill parties to the supplement 1 one. Enswnrih 
 
 V. Lambert, 4 J. C. R. t05 ; iWKown v. Yerks, 6 lb. 450 ; and see 
 
 •page 76, fost. Still, if any of the original defendants have an interest 
 
 in the supplemental matter, and justice requires they should be at liberty 
 
 to join issue with the plaintitf upon the fupplemont 1 pirts, then it is 
 
 fit they should be made defendants. Bijvall v. Atkins, 6 Madd. 369.-] 
 
 A mere formal party to the original is not a necess iry party to a 
 
 supplemental bill, where the ne.v matter does not affect his ngh's or 
 
 interests. (Allen v. Taylor, 2 Green's Ch. Rsp. 435 437, N. J ) 
 
 Supplemental If a supplemental bill is fi ed by the assignees of a bankrupt, stating 
 
 bill to supply the , . , „,. r .i ■ ■ '• i i -.i ^i i i ■ • i , 
 
 title to file the that since tiie filing of the original biJ they had obtamed the necessary 
 
 original bilL consent to the in.stituticn of the 3uit, which they had not obtained be- 
 fore, such supplemental bill is demurrable ; for it is not the ofB '.e of a 
 - Buppleuiental bill to supply the title to file the original bill. King v. 
 Tullock, 2 Sim. 469. 
 Supplemental Wiiere a suit is instituted, on the ground of fraud, to restrain an ac- 
 
 ferenT'^reTief ' ^''^" Commenced on- a bill of exchange, and pending the suit the plain- 
 
 from thatsoxight [[ff j^ ^jjg action recovers payment, the plaintiff in equity m v fie a- 
 by the original , '^ ■' '^ , , 
 
 bill. supplemental bill, praying a repayment of the amount recovered and 
 
 the costs of the action. Pinkus v. Pe'ers, 5 Beav. 253. 
 
 Supplemental /j ^ Accordinorly, where residuary legra'ees file a bill aorainst an 
 
 bill to supply a^^ ^ ■> ^ Jo o 
 
 defect in an ori- executor, praying that the usual accounts muy be taken ; and the 
 
 " executor, by his answer alleges that there is a balance due to him 
 
 from the testator's estate, in respect of partnership transactions be- 
 tween them ; but the decree does nut direct the ma?iter to investigate 
 the partnership accounts, but only to take the common accounts; the 
 legatees may file a supplemental bill praying for the taking of the 
 partnership accounts, in order that the balance du' from the executor 
 may be ascertained ; for such a bill is a hill filed to supply a defect in 
 the former bill, and in aid of the decree in the former suit. Cropper 
 V. Knapman, 2 Y. & C. Eq. Ex. 338. 
 
 But where a creditor of a testator files a bill against the executor, 
 praying that the usual accounts may betaken, and the executor by his 
 answer claims to be a creditor of the testator, by payments maJe on
 
 S. III.] SEVERAL KINDS OF BILLS. 77 
 
 sue by it, or by the defence made by it (k) ; or to 
 bring formal parties before the court (I) : or it may 
 be used as a ground to impeach the decree, which 
 is the peculiar case of a supplemental bill in the 
 nature of a bill of review, of which it will be neces- 
 sary to treat more at large in another place. But 
 wherever the same end may be obtained by amend- 
 ment, the court will not permit a supplemental bill 
 to be filed (m) (1). 
 
 When any event happens subsequent to the time L^^J 
 
 •' ' ^ * _ Where a new 
 
 of filing an original bill {n), which gives a new in- J^'f/J^^"' "■ "• 
 
 terest in the matter in dispute to any person not a 
 
 party to the bill, as the birth of a tenant in tail, or 
 
 a new interest to a party, as the happening of some 
 
 other contingency, the defect may be supplied by * 
 
 {k) Jones V. Jones, 3 Atk. 110. Atk. 817 ; see p. 74, note (e). 
 
 (i) Ibid. 217. (n) 1 Atk. 291 ; 3 Atk. 217 ; see 
 
 (to) See Baldwin v. Mackown, 3 above, p. 74, note (e). 
 
 his account to more than the amount of the assets, and the decree does 
 not direct the master to report, and he does not report as to tliis claim ; 
 and the creditor files a supplemental bill, stating that the payments 
 made by the executor were payments made on account of partnership 
 tran.sactions between the testator and the executor, and therefore were 
 made partly for the executor himself, and praying that the partnership 
 accounts may be taken, so that it may be ascertained what is due from 
 the executor to the testator for the payment of the, debt due to the 
 creditor; such supplemental bill, according to the decision in Grant v. 
 Grant, 6 Law J. Ch. Rep. (O. S.) 145, is demurrable, as an attempt 
 to begin a new suit after having failed in a former suit for the same 
 matter. This decitiion seems directly opposed to that in Cropper v. 
 Knapman, for there does not appear tt) be any substantial distinction 
 between the two cases. The editor conceives that the decision in 
 Grant v. Grant is wrong. 
 
 (1) See Parser V. Constable, 15 Law J., C. R. (N. S.) 16, and 
 Blackhurnw, Slaniland, 9 Jur. 1027. And see Colclough v. Evans, 4 
 Sim. 76 ; Gr.enwuol v. Atkinson, 5 Sim. 419 ; Wood v. Wood, 4 Y. & 
 C Eq. Ex. 135, supra, p. 75, note.
 
 77 FRAME AND END OF THE [CnAP. I. 
 
 a bill which is usually called a supplemental bill («?), 
 and is in fact merely so with respect to the rest of 
 the suit, though with respect to its immediate ob- 
 ject, and against any new party, it has in some 
 ' ^ degree the effect of an ori(]cinal bill. If any event 
 
 Where a partial ^ n j 
 
 rSi^e^s'^ I'aceT ^appcus which occasious any alteration in the in- 
 terest of any of the parties to a suit, and does not 
 deprive a plaintiff suing in his own right of his 
 whole interest in the subject, as in the case of a 
 
 Jwntfff u^de- mortgage or other partial change of interest ; or if 
 
 terlau °^ ''" ™* & plaintiff suing in his own right is entirely deprived 
 of his interest, but he is not the sole plaintiff, the 
 defect arising from this event may be supplied by 
 a bill of the same kind, which is likewise commonly 
 • termed, and is, in some respects, a supplemental 
 
 bill merely, though in other respects, and especially 
 against any new party, it has also in some degree 
 the effect of an original bill (1). In all these cases 
 the parties to suit are able to proceed in it to a cer- 
 [64] tain extent, though from the defect arising from the 
 event subsequent to the filing of the original bill 
 the proceedings are not sufficient to attain their 
 full object. 
 
 t^!tVapi!dn- If the interest of a plaintiff suing in autre droit 
 
 tiff emng in autre .• i i • i i i i • i 
 
 droir determines, eutu'cly Qetermmes by death or otherwise, and 
 some other person thereupon becomes entitled to 
 
 (o) It may here be remarked, that Adams v. Dowding, 2 Madd. R. 53. 
 
 such subsequent event must not only [In this case it is said to be seldom 
 
 be relevant, but material, see Milnef necessary to file a supplemental bill 
 
 Y. Lord Harewood, 17 Ves. 144, and where the original one is for an ac- 
 
 of such a nature, that the relief count.] Mole v. Smith, 1 Jac. & 
 
 sought in respect thereof cannot be W. 665. 
 obtained under the original bill. 
 
 (1) [Bignallv. Atkins, 6 Madd. 369.]
 
 S. HI.] SEVERAL KINDS OF BILLS. 7S 
 
 the same property under the same title, as in the 
 case of new assignees under a commission of bank- 
 rupt, upon the death or removal of former assig- 
 nees {p), or in the case of an executor or admin- 
 istrator, upon the determination of an administration 
 aurante viinori estate (q), or pendente lite, the suit 
 may be likewise added to and continued by sup- 
 plemental bill (r-) (1). For in these cases there is 
 
 (p) Anon. 1 Atk. 88 ; S. C.l Atk. (r) lu the case of an administra- 
 571 ; Brownv. Martin, 3 Atk. 218. tiou determined by death, a bill of 
 
 (q) See Jones v. Basset, IVec. in revivor by a subsequent administrator 
 Ch. 174; Gary's Rep. 22 ; Stubbsv. has been admitted. Owen\. Curzon, 
 Leigh, 1 Cox R. 133. 2 Vern. 237 ; Muggins v. York 
 
 Build. Comp. 2 Eq. Ca. Ab. 3. 
 
 (1) Mr. Story, in Eq. PI. n. 2, to 5 340, thinks there is no well 
 founded distinction taken by Lord Redesdale, between the cases of a 
 determination of the interests of a plaintiff suing in autre droil, and 
 in his own right, and cites Coop. Eq. PI. 76, who insists there is no 
 such distinction. Story, ibid, and n. 1, to ) 349. " In each case it 
 would seem the bill should be an original bi I, in the nature of a sup- 
 plemental bill, for it brings forward new interests by new parties." 
 Ibid. And see the distinction laid do<vn in Sedgwick v. Cleaveland, 7 
 Paige's Rep. 287. 290 ; Mills v. Hoag, Id. 18. And yet such a bill is 
 founded on formal technical principles, rather than on any substantial 
 difft-rence from the former ; the prominent distinction beinyr it seems 
 this, that the latter lies when ihe same parties or interests are before 
 the court ; the former, when new parties with new interests arise from 
 events since the suit was instituted. Story, Jd. { 396, el seq., citing 
 Cooper Eq. PI. 75, 76. Mitf. Eq. PI. 63, and Sir Th. Plumer Com- 
 mentary, in Adams v. D>wding, 2 Madd. Rep. 63, or Mil ford, 63, 64. 
 72. 98, where it is lield that a supplemental bill lies when any event 
 happens after the filing of the original, which gives a new interest in 
 the matter in dispu'e to any person not a party to the bill. But iiere, 
 though usually called a supplemental bill, and is so, with respect to 
 the rest of the suit, yet as to its immediate object, and a;:ainst any 
 new party, it has in degree the effect of an original. The bill is in 
 nature of a supplemental, because it is original as to the new parties 
 and interests ; and in some sort supplemental also as being an appen- 
 dage to the former bill as to old parties and interests. Id. } 3l6, and 
 see 7 Paige, supra.
 
 79 FRAME AND END OP THE [ChaP. I. 
 
 no c?iange of interest which can effect the ques- 
 tions between parties, but only a change of the 
 person in whose name the si^itmustbe prosecuted ; ■ 
 and if there has been no decree, the suit may pro- 
 ceed, after the supplemental bill has been filed, in 
 the same manner as if the original plaintiff had 
 continued such, except that the defendants must 
 answer the supplemental bill, and -either admit or 
 put in issue the title of the new plaintiff. But if a 
 decree has been obtained before the event on which 
 such a supplemental bill becomes necessary, though 
 the decree be only a decree nisi, there must be a 
 £65] decree on the supplemental bill, declaring that the 
 plaintiff in thfit bill is entided to stand in the place 
 of the plaintiff in the original bill, and to have the 
 benefit of the proceedings upon it, and to prosecute 
 the decree, and take the steps necessary to render 
 it effectual .(s). 
 piaintfff-sufng^n \^ d solc j^ldintiff suing Ifi his own right \s de- 
 
 his own risht is-i/^i-ii- -i '• 
 
 deprived ot his privcd 01 his wuole mterest m the matters m ques- 
 
 whole interest, * _ _ ■* 
 
 r bankrupt' o°^ tion by an event subsequent to the institution of a 
 msoivent debt- ^^^-^^ ^^ j^^ ^^^ cELSc of a bankrupt or insolvent deb- 
 tor, whose whole property is transferred to assig- 
 nees, or in case such a plaintiff assigns his whole 
 interest to another, the plaintiff being no longer 
 able. to prosecute for want of interest (t), and his 
 
 (s) Brown v. Martin, 3 Atk. 218. and Porter v. Cox, 5 Madd. 80, ia 
 
 (t) Upon the question whetlier the which revivor seems to have been 
 
 baukriiptny of a sole plaintiff is, or thought necessary. But as it cannot 
 
 ought to be considered an abatement be stated a priori, that there will not 
 
 of a suit, some difference of opinion be any surplus of the bankrupt's es- 
 
 has prevailed. See Sellas v. Dnw- tate after satisfaclion of the credi- 
 
 son, rep. 1 Atk., Sand. Ed. 263 ; tors, who may prove under the com- 
 
 note, 4 Madd. 171, and the cases of mission, it seems impossible to insist, 
 
 Randall v. Mumjord, 18 Ves. 424, even where a plaintiff suing in his
 
 S. III.] SEVERAL KINDS OF BILLS. 80 
 
 assignees claiming by a title which maybe litigated, 
 the benefit of the proceedings cannot be obtained 
 by a supplemental bill, but must be sought by an 
 original bill (u) in the nature of a supplemental bill, 
 which will be the subject of discussion in a subse- 
 quent page. 
 
 If a commission of bankrupt issues against any 
 nartv to a suit, or he is discharged as an insolvent [6^] 
 
 ■I « ' '-' Where a bill Is 
 
 debtor, his interest in the subject is, unless he is a ^l^^^^'j; ^^7= "' 
 mere trustee, generally transferred to his assig- SeThVc'JSt. 
 nces (x) (1); and to bring them before the court 
 a supplemental bill isnecessaiy, to which the bank- 
 rupt or insolvent debtor is not usually required to 
 
 own right becomes a bankrupt, that, (x) 9 Ves. 86; 1 Ves. & B. 547 ; 
 
 as a general rule, the suit abates, and see, as to the exceptions, Cope- 
 
 And the truth of the proposition will man v* Gallant, 1 P. Wms. 314; 2 
 
 be more apparent from what is fur- P. Wms. 318 ; Ex parte Ellis, 1 
 
 ther stated in the next page of the Atk. 101 ; 1 Atk. 159. 234; 6 Ves. 
 
 text. 496 ; Joij v. Campbell, 1 Sch. & 
 
 (m) See'Harrison v. Ridley, Com. Lefr. 328; Ex parte Martin, 19 Vea. 
 
 Rep. 589. 491 ; S. C. 2 Rose, B. C. 331 ; Ex 
 
 parte Gillett, 3 Madd. 28. 
 
 (1) [Moran v. Hnys, 1 J.'C. R. 339. Every argument which goes 
 to sliow an insolvent to be a proper party before his discharge, applies 
 with equal force, to prove that his assignees, after that event, arp 
 equally so. They stand, in relation to his property, precisely in the 
 place of the insolvent. The assignees succeed to all the riglits of the 
 iii:^olvent, which, in behalf of the creditor;!, they are bound to protect 
 and defend. They have the same interest in the final issue of the 
 cause ; and, in the chiiracter of assignees, they are entitled to be 
 heard. Deasv. Thnrne, 3 J. R. 651. In Osjrood v. Franklin, 2 J. C. 
 R. 16, two of the plaintiffs had been discharged under an insolvent act, 
 and another had died. The course taken was by a bill of revivor and 
 siipplement, whereby the assignees of the insolvents were made defen- 
 dants, as well as the executors of the deceased party. It was ob- 
 jectrd, that they (the assignees) ought to have been plaintiffs ; but the 
 court determined the assignees could not be compelled to be plaintiffs. 
 It was sufficient for the merit of the case that they were before the 
 court.]
 
 80 
 
 FRAME AND END OF THE [ClIAP. I. 
 
 81 
 
 Where a bank- 
 rupt plaintiff 
 may proceed 
 himself in the 
 suit. 
 
 [67] 
 
 be a party (1), although a bankrupt may dispute 
 the validity of the commission issued against him(?/). 
 But, if plaintiff, a bankrupt may proceed himself in 
 the suit, if he disputes the validity of the commis- 
 sion, or a bankrupt or insolvent may proceed if the 
 suit is necessary for his protection (z), or if his as- 
 signees do not think fit to prosecute the suit, and 
 he conceives that it is for his advantage to prose- 
 Under those circumstances, however, 
 
 When it is, and ^ 't. / \ 
 
 when it is not CUtC it {(I) 
 
 necessary for i • i • i /» i i 
 
 him to bring his he must Drmcr the assignees beiore the court by 
 
 assignees before . . 
 
 the court. supplemental bill, as any benefit which may be 
 derived from the suit must be subject to the de- 
 
 (y) The commission, however, 
 cannot be actually impeached by him 
 in the suit ; his proper mode of dis- 
 puting its validity is by an actiijn at 
 law, or by a petition to supersede the 
 same. See Hammond v. Attwood, 
 
 3 Madd. 158 ; and see Bryant v. 
 Withers, 2 Maule &, Seiw. 123 ; 15 
 Ves. 468; Ex parte M'Gennis, 18 
 Ves. 289 ; 5. C, 1 Rose, B. C. 60 ; 
 Ex parte Bryant, 2 Rose, B. C. 1 ; 
 Ex pprte Northam, 2 Ves. & B. 124 ; 
 S. C, 2 Rose, B.C. 140 ; Ex parte 
 Price, 3 Madd. 228 ; Ex parte Ran- 
 ken, 3 Madd. 371 ; Ex parte Bass, 
 
 4 Madd. 270 ; Bayley v. Vincent, 5 
 Madd. 48 ; Ex parte Gale, 1 Glyn 
 ScJ. 43. 
 
 (z) Anon. 1 Atk. 263 ; 1 Madd. 
 R. 425. And this seems lobe another 
 reason, why it cannot be a general 
 rule that the bankruptcy of the plain- 
 tiff causes an abatement, even where 
 he sues in his own right (2). 
 
 (a) Loiondes v. Taylor, 1 Madd. 
 R. 423 ; S. C, 2 Rose, B. C. 365. 
 432. If an uncertificated bankrupt 
 should be desirous that a suit in re- 
 spect of the property should be com- 
 menced or prosecuted, and his as- 
 signees should refuse to adopt that 
 course, it seems, that to attain his* 
 object, he must petition for leave to 
 use their names for the purpose of 
 proceeding, he indemnifying them. 
 5 Ves. 587. 590 ; Benfield v. Solo- 
 mons, 9 Ves. 77 ; 3 Madd. 158. 
 
 <1) [In Collins V. Shirley, 1 Russ. & M. 638, a bill of foreclosnre 
 was filed against Shirley. He had taken the benefit of the insolvent 
 act ; and yet he was made a party with his assignees. The M. R. de- 
 cided that Shirley had been made a party improperly, and ought, there- 
 fore to have his costs.] 
 
 (2) [A bankrupt cannot file a bill of redemption in respect of his 
 right to the surplus. But where he has a clear interest, and the as- 
 signees refuse, the court, upon petition and an offer of indemnity, will 
 compel them to let him use their names. Spragg v. Binkes, 5 Ves. 690.]
 
 S. III.] SEVERAL KINDS OF BILLS. 81 
 
 mands of the assignees {b), unless he seeks his 
 personal protection only against a demand which 
 cannot be proved, or which the person making the ^^^ 
 
 demand may not think fit to prove, under the com- 
 mission issued against the bankrupt, or fi'om which 
 the insolvent debtor may not be discharged (c). 
 
 And if by any event the whole interest of a de- who^efntefestof 
 
 _- . -11 • 1 1^1 • ^ ^ defendant is 
 
 fendant is entu'ely determmed, and the same inte- determined, and 
 
 •^ •' 1 1 • 1 1 vested in anoth- 
 
 rest is become vested m another by a title not de- erbya tiue not 
 
 •' dfnvedlromthe 
 
 rived from the former party, as in the case of sue- f"™" party, 
 cession to a bishopric or benefice, or of the deter- 
 mination of an estate-tail, and the vesting of a sub- 
 sequent remainder in possession, the benefit of the [68] 
 suit against the person becoming entitled by the 
 event described naust also be obtained by original 
 bill in the nature of a supplemental bill : though if 
 the defendant whose interest has 'thus determined 
 is not the sole defendant, the new bill is supple- 
 mental as to the rest of the suit, and is so termed 
 and considered. But if the interest of a defendant is determine" wt 
 not determined, and only becomes vested in another another. 
 by an event subsequent to the institution of a suit, 
 as in the case of alienation by deed or devise, or 
 
 (b) Although, it seems, the bank- parties thereto by supplemental bill 
 
 ruptcy of a plaintiff, suing even iu within a limited time (1). Williams 
 
 his own right, does not, at least as a v. Kinder, 4 Ves. 387 ; Randall v. 
 
 general rule, abate the suit, it un- Mumford, 18 Ves. 424 ; Wheeler v. 
 
 questionably renders it defective, 18 JlfaZ/ns, 4 Madd. 171 ; Porter -v. Cox, 
 
 Ves. 427 ; and this court upon a spe- 5 Madd. 80 ; S. C, 1 Buck, B. C. 
 
 cial application will dismiss the bill, 4C9 ; Sharp v. Hullett, 2 Sim. &Stu. 
 
 (but, as it seems, without costs,) un- 496. 
 
 less the plaintiff make his assignees, (c) See p. 81, note (a). 
 or upon notice they make themselves 
 
 (1) [Query — Whether the insolvent might not, instead of proceed- 
 ing by supplemental bill, petition the court to let liiin use their names 
 in the suit, upon being indemnified ? Spragg v. Binkes, 6 Ves. 690.]
 
 82 FRAME AND END OF THE [ClIAP. L 
 
 by bankruptcy or insolvency, the defect in the suit 
 may be supplied by supplemental bill, whether the 
 suit is become defective merely, or abated as well 
 as become defective (d) (1). For in these cases 
 
 83 the new party comes before the court exactly in the 
 same plight and condition as the former party, is 
 bound by his acts, and 7nay be subject to all the 
 costs of the proceedings from the beginning of the 
 suit (e). 
 
 Where, in these ijj all thcsc cascs, if the suit has become abated 
 
 cases, the suit ; ' 
 
 ted.^'arweu^rs as well as defective, the bill is commonly termed a 
 defective. supplemental bill in the nature of bill of revivor,^ 
 
 as it has the effect of a bill of revivor in continuing 
 
 the suit (2). 
 
 (<f) See Rutherford v. Miller, 2 might be dismissed, was allowed to 
 
 Anstr. 458 ; Russell -v. Sharp, 1 Ves. be proper under the circumstances ; 
 
 & B. 500 ; Whitcomb^ v. Minchin, which affords a ground, besides the 
 
 5 Madd. 91 ; Foster v. Deacon, 6 reasons already intimated in relation 
 
 Madd. 59 ; Turner v. Robinson, 1 to the plaintiff becoming bankrupt, 
 
 Sim. &Stu.3. In the cases of JVfo«- so far as they apply, for presuming 
 
 teith V. Taylor, 9 Ves. 615, and that the bankruptcy of the defendant 
 
 Rhode V. Spear, 4 Madd. 51, a mo- does not abate the suit, but merely 
 
 tion on the part of the defendant, renders it defective, 
 
 after his bankruptcy, that the bill (e) 1 Atk. 89. 
 
 . (1) An assignee of an insolvent defendant should not bring him- 
 
 bill by an as- self before the court by supplemental bill, until he has applied to the 
 fendMit" * ^ plaintiff to file a supplemental bill for the purpose of bringing him 
 (the as&ignee) before the court, and the plaintiff has declined or neg- 
 lected to do so. Phillipps v. Clark, 7 Sim. 231. 
 
 It was gaid in Slack v. Walcott, 3 Mason, 608, that a devisee may- 
 maintain an original bill in the nature of a bill of revivor, and thus 
 obtain the benefit of the original proceedings, as well before as after 
 there has been a decree in the original suit.] 
 (2) [Westcott V. Cady, 6 Johns. Ch. R'-p. 334.] 
 A bill by A. and B, was filed against C. to obtain conveyance of 
 realty ; and after a replication to C.'s answer, A. purchased B.'s in- 
 terest in the subject, and died : his heirs at law filed a supplemental 
 bill in the nature of a bill of revivor and supplement, to continue the 
 proceedings in their names, as substituted complainants, entitled to
 
 exi^ciitor or u4» 
 ministratur. 
 
 S. III.] SEVERAL KINDS OF BILLS. 83 
 
 2. Wherever a suit abates by death, and the in- IJ'''" °^ "'^- 
 terest of the person whose death has caused the abates by d..nth, 
 abatement is transfnitted to that representative o« th.- deceHsid 
 
 * pas8<!St<)hi8 heir, 
 
 which the law gives or ascertains, as an heir at law, 
 executor or administrator, so that the title cannot 
 be disputed, at least in the court of chancery, but 
 the person in whom the title is vested is alone to 
 be ascertained, the suit may be continued by bill 
 of revivor merely (1). If a suit abates by marriage 
 
 the whole subject matter ; to which bill C. answered, without oath, 
 admitting the fihng the original b II, but by a gf-neral traverse denying 
 that any orher allegations we e true to his knowlidg'e or belief. On 
 application by complainants in the su| plemental brll to revive and 
 continue proceedings, it was held that under the 23(1 Rule of the court, 
 that as the facts in tl«e suppleinema! bill, as to conip'aiiiants' in'erest 
 in the subject matter were put in it^sue by the answer, the heirs should 
 file a replication to such answer, and take proof of the matter put in 
 issue in connection with the proofs of the matters upon the original 
 bill ; leaving the question as to the rijht of compUinants to have the 
 benefit of the orijiiual bill, and of t' e subject m itti r of the dame to be 
 finally decided at the hearing upon the pniofa in the cms •. And un- 
 less the facts put in issue by t'le answer to the suj)pk mental bill, were 
 proved by the complainants in the usual way, suih bill should be d a- 
 missed at the hearing, if such fac's were proved, as well as the 
 matters put in issue upon the original bill, the new complainants would 
 be entitled to tlie same relief tliat the coinp!ainants in the original bill 
 would have b en entitled to, if they had boih lived, and had continued 
 to retain their interest in the suhj ct matter of the litigation as it was 
 at the commencement of the suit. (Duy v. Puller, 9 Paige's Rep. 
 646, el seq. 645.) 
 
 (1) Where a bill, cmss bill, and bill in nature of a eupplemental bill 
 of revivor, between the same parties and on the same subject, all abate 
 by death of one of the parties in a pirtition suit, the whole proceed- 
 ings may be revived by one bill of revivor, and, therefore, costs of 
 two or more bills will not be allowed. ( Wi^de v. Jenkins el al., 4 
 Pai' e's R^p. 600. 481.) 
 
 On bill for account and distribution of an estate, if a distributor 
 die, the suit mu-t be revived against tiis personal representatives not 
 next of kin. (Jenkins v. Freijer, Id. 51. 47.) 
 
 On bill of revivor, the competency of the parties and correctness of 
 the frame of the bill, are the only questions before the court. General
 
 ^ FRAME AND END OF THE [ChAP. I. 
 
 of a female plaintiff, and no act is done to affect 
 
 objections to the original bill, to show th« case not of equitable cogni- 
 zance should be rei^erved until after the revivor. Administrator and 
 infant son and sole heir of a deceased defendant, are proper parties to 
 tliis bill ; for they are both proper parties to meet the exigency of the 
 original. So also is one having a subsisting interest in the estate, as 
 the immediate mortgagor from whom plaintiff derives title as mort- 
 gagee, and having an equal interest with plaintiff, to litigate the va- 
 lidity of an attachment, made by intestate. So held in^assachusetts, 
 on demurrer to injunctinn bill to quiet title. {Bettesii. Dana, 2 Sum- 
 ner's Rep. 385—6. 383.) 
 
 Upon the question of proper parties to bill to revive or continue the 
 proceedings on the death or change of parties to an original bill, there 
 has been conflict of opinion amon^ practitioners, observes.the chancellor 
 in Farmers' Loan and Trust Co. v. Seymour, 9 Paige's Rep. 642 ; but 
 having examined the subject to ascertain the true rule, he says: — 
 " Where the abatement of a suit is caused by the death of one of 
 sever.il defendants, and the suit is revived by T:he complainant in the 
 original suit, it appears to be only necessary, in a simple bill of revi- 
 vor, to bring the representatives of the decedent before the court, 
 without making the surviving defendants parties to such bill. So in 
 the case of the death of one of several complainants, if the survivors 
 are in a situa'ion to entitle them to revive and continue the suit against 
 his representatives, by making them defendants in a bill of revivor, 
 Smith, (in 1 Smith's Practice, 394,} says it is not usual to make the 
 other defendants, parties to such bill. In this last case, however, 
 Daniel) (3 Dan. Ch. Pr. 211.) appears to suppose that the original de- 
 fendants in the suif, as well as the representatives of one of the com- 
 plainants, as to whom the suit has abated, should be parties to the bill 
 of revivor, filed by the surviving complainants. 
 
 "Without stepping to inq lire wbich is right in the particular case 
 supposed, it appears to be perfectly well setrled, that when a bill of 
 revivor, or a bill in the nature of a bill of revivor, is filed by any one 
 who was not a party to the original suit, either as the representative of 
 a deceased | arty, or otherwise, ail the other parties to such original 
 suit, who have any interest in the further proceedings therein, should 
 be made parties to such bill, either as complainants or defendants. 
 The tieneral rule which applies to a simple bill of revivor against the 
 representatives of one of several defendants, appears to hold in the 
 case of a supplemental bill in the nature of a bill of revivor, to bring 
 the devisee or assign-^e of the original defendants before the court." 
 If a supplemental bill is only lo bring in a new party on a given case, 
 or in respect of antecedent facts on the record, he only need be party
 
 S. III.] SEVERAL KINDS OF BILLS. 84 
 
 the rights of the party but the marriage, no title nlate^by^mw* 
 
 riage, and no 
 ■ other act is done 
 
 defendant. But if it is to bring new facts before the cour*, all the old rights of the par- 
 defend;tnts in the original bill should be parties to the supplemental '*^*- 
 bill. //). 
 
 [The Revised Statutes of the State of New- York contain provisions 
 which do away with a bill of revivor in many instances, and simplify, 
 in other respects, the practice in case of death. 
 
 No suit in chancery is to abate by the death of one or more of the 
 complainants or defendants when the cause of action survives, but, 
 upon satisfactory suggestion of such death, the suit is to proceed for 
 or against the surviving parties. 2 R. S. 184, ^ 107. The cases in- 
 tended to be embraced by this section, are those where the right of the 
 deceased party vests in some one of the survivors ; so that a perfect 
 decree may be made as to every part of the subject of litigation, with- 
 out any alteration of the proceedings or bringing any new parties be- 
 fore the court. Such is the case of a suit brouglit by or against two 
 or more executors, trustees or joint tenants, where, on the death of one, 
 the whole right of action or ground of relief survives in favor of or 
 against the other. In such cases, there is, in fact, no abatement as to 
 the survivors ; and upon a proper application by either party, on affi- 
 davit, showing the fact of the death, and that the cause of action has 
 survived, the court will order the suit to proceed. Leggelt v. Dubois, 
 2 Paige's Ch. Rep. 212; and see Brown v. Story, lb. 694. 
 
 No bill of revivor is necessary to revive a suit against the represen- 
 tatives of a deceased defendant ; but the court upon a petition, may 
 order it to stand revived. 2 R. S. 184, } 108. This section provides 
 for another class of cases where some of the parties survive, and the 
 rights of the parties dying do not survive to them, but some other per- 
 sons become vested with the rights and interests, or are subject to the 
 liabilities of those who are dead. In such cases, tTie complainants 
 may proceed without making those persons parties, provided a decree 
 can be made between ti)e surviving parties without bringing such per- 
 sons before the court. The decree, in that case, will not affect those 
 in whom the rights of the deceased parties have become vested. Leg' 
 gelt V. Dubois, supra. 
 
 In cases where a complainant dies, and the cause of action does not 
 survive, his representatives may, on affidavit of such death, and on mo- 
 tion in open court, be made complainants and be permitted to amend 
 the bill. 2 R. S. 184,5116; While v. BuIoid,2 Paige's Ch. Rep. 
 475. When the representatives do not cause themselves to be made ' 
 
 complainants within eighty days after such death, the surviving com- 
 plainant may proceed to make them defendants, as in cases where the 
 representatives of a deceased defendant arc made parties. 2 R. S. 
 
 9
 
 8i FRAME AND END OF THE [ClIAP. !► 
 
 can be disputed ; the person of the husband is the 
 
 5 117; Wilkinson V. Parish, 3 Paige's Ch. Rep. 653. If there be no 
 surviving complainant, or such an one neglects or refuses to proceed 
 against such representatives, the court, upon petition of the original 
 defendant, may order such representatives to shovs? cause why the suit 
 should not stand revived in their names or the bill be dismissed, so far 
 as the interest of such representatives is concerned. ^ 118, 119. If 
 a defendant dies where the cause of action does not survive, and the 
 complainant neglects or refuses to procure an order for the revival of 
 the suit, the court may order it to stand revived upon the petition of a 
 siirviving defendant against the representatives of the deceased party. 
 { 120, 121. 
 
 These provisions of the statute, authorizing the revival of a suit on 
 motion or petition, extend only to those cases where, by the former 
 practice of the court, the proceedings could be revived and continued 
 by a simple bill of revivor. Douglass v. Sherman, 2 Paige's C. R. 358. 
 Under the above provisions a suit in chancery may be revived by a 
 surviving complainant against the infant representatives of a deceased 
 complainant. Wilkinson v. Parish, supra. If the parties against 
 whom a suit is sought to be revived are beyond the jurisdiction of tlie 
 court, or cannot be found lo be served with the order, a formal bill of 
 revivor must be filed, and the like proceedings had to obtain their ap- 
 pearance as are required in the case of absent, concealed or non-resident 
 debtors. lb. Partition suits are embraced by these sections. lb. 
 
 As to office practice and service under these provisions, see the 
 sections themselves and all the cases above referred to ; and see Pru- 
 en V. Lunn, 5 Russ. 3. 
 
 It may be necessary to revive a suit against the personal representa- 
 tives of a deceased defendant, who has disclaimed, and against whom 
 the complainant waives all relief. Glassington v. Thwaites, 2 Russ. 
 458. 
 
 As to reviving on a conditional decree against a defendant, in case 
 one of the complainants dies, see Ex^rs of M'Gough v. Ex'rs of Han- 
 ningion, 1 Hogan, 23, 
 
 In a case more recently decided in the late court of chancery of the 
 State of New-York than those above quoted, the chancellor draws the 
 following distinctions : If a suit abate by death of all the defeudantsj 
 the general rule is strict that before a decree or decretal order, by 
 wiiich a defendant becomes entitled to an interest in the further con- 
 tinuance of the suit, neither he nor his representatives can sustain a 
 bill of revivor. But after a decree the suit may be revived at the in- 
 stance of a defendant or his representatives, if complainants or those 
 who represent them, neglect to revive it. " The New- York revised
 
 S. III.] SEVERAL KINDS OF BILLS. 84 
 
 sole fact to be ascertained, and therefore the suit 
 
 - 
 
 statutes, 2 R. !S. 185, have given some rights to defendants and to 
 the survivor of several defendants in the revival of suits which they 
 did not before possess ;" but its provisions do not extend to abatement 
 by death of a sole defendant or of all the defendants, before they have 
 obtained an interest by decree as mentioned. Where personal repre- 
 sentatives of a deceased party are only entitled to relief against ad- 
 verse party upon a conveyance to him of real estate descended to heirs 
 at law of decedent, the lieirs are necessary parties to a bill of revivor 
 filed by them. (Souillard et al v. Dias, 9 Paige's R. 394—5, 393.) 
 
 As to statute and practice in New-Jersey to save necessity of filing 
 bills of revivor, see Ross v. Hatfield et al. 1 Green's C. R. 363, 364. 
 
 If a defendant, who has been served with a copy of the bill under Revivor on the 
 the 23d order of August, 1841, dies, without having appeared, his dant without ha- 
 persoual representative must be brought before the court; and for that '"^S appeared, 
 purpose, an original bill, and not a bill of revivor, is necessary. Har- 
 dy v. Hull, 14 Sim. 21. 
 
 And in other cases where a person named as a defendant dies before 
 appearance, an original bill, and not a mere bill of revivor, ought to 
 be filed ai^ainst his representative. Crowfoot v. Mzndtr, 9 Sim. 396. 
 See further as to bill of revivor. [Nicoll v. Roosevelt, 3 J. C. R. 60 ; 
 Feomstcr v. Markham, 2 J. J. Marshall's R. 303. Where the cause 
 of action against a deceased party does not survive, but some tliird 
 person becomes vested with his interest or subject to his liabilities, the 
 complainant may elect to proceed without reviving the suit against 
 the representatives of the deceased party, provided a perfect decree 
 can be made between the survivors without bringing such representa- 
 tives before the court, Leggett v. Dubois, 2 Paige's C. R. 211. 
 
 If two bring a suit to redeem and one dies, the surriving plaintiff 
 and heir of the deceased party cannot file an original bill; but should 
 proceed by bill of revivor. Saunders v. Frost, 5 Pickering's R. 275. 
 
 See more as to bills of revivor, p. 76, 77, post, and notes there. 
 
 A bill of revivor, when necessary, may be filed of course without 
 any order of the court granting permission to file such bill. Lewis v. 
 Bridi^man, 2 Sim. R. 465 ; Pendleton r. Fay, 3 Paige's C. R. 206. 
 
 As to the practice upon bills of revivor in Tennessee, see Lewis r. 
 Outlaw, 1 Overton's R. 140. 
 
 Upon a bill of revivor in Kentucky, a subpoena is served. Stout v. 
 Higbee's executors, 4 Monroe, 145] 
 
 [Where one complainant files a bill of revivor, another cannot take 
 the same course. A second bill would be stricken off the files. And 
 even a defect of parties in the first bill affords no reason for keeping 
 the second on file. Livesey v. Livesey, 1 R. & M. 10.]
 
 [70] 
 
 84 FRAME AND END OF THE [ChAP. I. 
 
 may be continued in this case likewise by bill of 
 revivor merely (1). 
 Ancient practice Whcu a suit bccame abated after a decree 
 
 where a suit a- . n i / /-s • • i ^i 
 
 bated after a de- signed and cnrolled ( f), it was anciently the prac- 
 
 creo signed and 3 v^ / i 
 
 enroued. ^j^^g ^q rcvivc tho dccrcc by subpcBna in the nature 
 of a scire facias (g) (1), upon the return of which 
 the party to whom it was directed might show 
 • cause against the reviving of the decree (h), by in- 
 sisting that he was not bound by the decree (i), or 
 that for some other reason it ought not to be en- 
 forced against him, or that the person suing the 
 subpoena was not entitled to the benefit of the de- 
 cree. If the opinion of the court was in his favor 
 he was dismissed with costs. If it was against 
 him (j), oYJf he did not oppose the reviving of 
 the decree, interrogatories were exhibited for his 
 
 (/) 1 Ves. 182. 184. (»') Brown v. Vermuden, 1 Ca. ia 
 
 (g) 11 Ves. 311. Ch. 272. 
 
 (A) See 1 Vern. 426 ; Sayer v. (j) 1 Ca. in Ch. 273. 
 Sayer, Dick. 42. 
 
 [A purchaser under a suit cannot revive. Backhouse v. Middleton. 
 Freem. 132.] 
 
 (1) As noted in reference to the doctrine of abatement by marriage, 
 (ante, p. 69, note, the first abates even after decree by marriage of female 
 complainant, but not of female defendant (see further ib. ;) and it must 
 be revived by bill, not petition ; as the statute authorizing summary ap- 
 plication by petition does not apply to such abatement. Where defen- 
 dant as well as complainant may revive, the court will direct, that if 
 complainant do not revive in a given time (say 60 days,) defendant shall 
 be at liberty to file a bill of revivor. {Quackenbush v. Leonard, 10 
 Paige's R. 133-4, 131.) 
 
 (2) [And this appears to be still the practice in the Irish court of 
 chancery. Cox v. IW Namara, 1 Hogan, 12.] 
 
 In Ohio, it is settled, that a bill of revivor, or petition in nature of, 
 is the appropriate method to revive a decree against heirs of deceased 
 respondent, and not scire facias, which is a more legal remedy and 
 procedure. Curtis v. The Heirs of Haion, 14 Ohio R. (Gnswold's) 
 186-7, 185.
 
 S. III.] SEVERAL KINDS OF BILLS. 84 
 
 examination touching any matter necessary to the 
 proceedings (k). If he opposed the reviving of the 
 de.cree on the ground of facts which were disputed, 
 he was also to be examined upon interrogatories, 
 to which he might answer or plead ; and issue 
 being joined, and witnesses examined, the matter 
 was finally heard and determined by the court. 
 But if there had been any proceeding subsequent 
 to the decree this process was ineffectual (/), as "^ 
 
 it revived the decree only, and the subsequent pro- 
 ceedings could not be revived but by bill ; and the 
 enrolment of decrees being now much disused, it 
 is become the practice to revive in all cases, indis- Modem practice. 
 criminately, by bill (^m). 
 
 3. If the suit becomes abated, and by any act ^^d"]uppj;me'n°L 
 beside the event by which the abatement happens 
 the rights of the parties are affected, as by a set- 
 tlement (u), or a devise (o) under certain circum- 
 stances, though a bill of revivor merely may con- 
 tinue the suit so as to enable the parties to prose- 
 cute it, yet to bring before the court the whole mat- 
 ter necessary for its consideration, the parties must, 
 by supplemental bill, added to and made part of 
 the bill of revivor, show the settlement, or devise, \J^\ 
 or other act by which their rights are aflfected (1). 
 
 (k) Anon. 2 Freem. 128. 426 ; Pract. Reg. 90, Wy. Ed. 
 
 (0 Crosier v. Wister, 2 Ch. Rep. (n) See Merrywether r. Mellish, 
 
 67; Thorn V. Pitt, Sel. Ca. in Ch. 13 Ves. 161. 
 54 ; S. C, 2 Eq. Ca. Ab. 180. (o) See Rylands v. Latouche, 2 
 
 (m) See Dunn y. Allen, 1 Vern. Bligh, P. C. 566. 
 
 (1) Ross V. Hatfield et al. 1 Green's C. R. 365, 363. [See form of 
 Buch bill, Willis, 352 ] 
 
 Mr. Story in Eq. PI. note 1 to } 387, seems to think that an original 
 bill in nature of bill of revivor and supplement (as new interests are 
 brou<;ht forward) might be more proper, than a bill of revivor and 
 supplement under which Lord Redesdale has put his illustration in 
 the text.
 
 85 FRAME AND END OF THE [ChAP. I. 
 
 And, in the same manner, if any other event which 
 occasions an abatement is accompanied or follow- 
 ed by any matter necessary to be stated to the 
 conrty either to show the rights of the parties, or to 
 obtain the full benefit of the suit, beyond what is 
 merely necessary to show by or against whom the 
 cause is to be revived, that matter must be set forth 
 by way of supplemental bill, added to the bill of 
 revivor (^?) (1). 
 
 86 4. If the death of a party, whose interest is not 
 nature o'f bfiis determined by his death, is attended with such a 
 
 of revivor. 
 
 transmission of his interest that the title to it, as 
 well as the person entitled, may be litigated in the 
 court of chancery, as in the case of a devise of a 
 real estate (^), the suit is not permitted to be con- 
 tinued by a bill of revivor. An original bill, upon 
 which the title may be litigated (?*), niust be filed ; 
 and this bill will have so far the effect of a bill of 
 revivor, that if the title of the representative substi- 
 tuted by the act the deceased party is established, 
 the same benefit may be had of the proceedings 
 upon the former bill as if the suit had been contin- 
 ued by a bill of revivor (s). 
 
 (p) See Russell v. Sharp, 1 Ves. Huet v. Lord Say and Sele, Sel. Ca. 
 
 &, Bea. 500. in Ch. 53. 
 
 (q) Backhouse Y. Middleton, 1 (s) CZare v. TVorJeZZ, 2 Vern. 548 ; 
 
 Ca. in Ch. 173; S. C, 3 Cli. Rep. 1 Eq. Ca. Ab. 83 ; Minshull v. Lord 
 
 39, and 2 Freem. 132; Mosely, 44. Mohun, 2 Vern. 672 ; 6 Bro. P. C. 
 
 (r) 1 Eq. Ca. Ab. 2, pi. 2 & 7 ; 36, Toml. Ed. (2) 
 
 (1) *'Ifapt^rson interested under a will files a bill for an account 
 against the executors, not seeking to charge them for wilful default, 
 and dies pending the suit, his personal representative cannot charge 
 them by bill of revivor and supplement, if the acts complained of were 
 known to the deceased plaintiff." Garrett v. Noble, 6 Sim. 604. 
 
 (2) [It hae been said, in Kentucky, that where a cause survives
 
 S. III.] SEVERAL KINDS OF BILLS. 86?' 
 
 5. If the interest of a plaintiff or defendant, suing [72] 
 
 ir»i- •!• •!, 1111. • 5. Bills in then a- 
 
 or deiendinff ni his own ri<i^ht, wholly determines, ture of euppie- 
 
 ° O ' J ' mental biU». 
 
 and the same property becomes vested in another 
 person not claiming under him, as in the case of 
 an ecclesiastical person succeeding to a benefice, 
 or a remainder-man in a settlement becoming en- 
 
 against the reprr-sentativea of a defendant who dies before a decree, 
 either a bill of revivor or original bill may be maintained. Lijle v. 
 Bradfordil Monroe's R. 115.] 
 
 In New- York, where bill was filed against defendant as executrix 
 of her deceased husband to reach property she had received as execu- 
 trix, but which in equity was complainant's, and she died after decree 
 in their favor, it was held that the surviving executor of the husband, 
 who had not been made party, could be brought in only by an original 
 bill in nature of bill of revivor and supplement ; and the filing of a 
 mere bill of revivor against him was improper. Ecertson v, Ogden, 
 8 Paige R. 276-7, 275. 
 
 So an original bill in nature of bill of revivor and supplereient is the 
 proper bill where complainant assigns all liis interest in the suit in the 
 premi.«es in controver.-^y, and dies; his grantee cannot revive and con- 
 tinue by a simple bill of revivor. So where defendant in such original 
 suit is entitled to revive, he must do so by a similar bill, as he cannot 
 file a simple bill of revivor against the grantee of the complainant in 
 that suit. A defendant in a suit can in no case file a bill to revive 
 when adverse party neglects to revive, unless he shows he has an 
 interest in the revival of the suit. A defendant may revive in all cases 
 after a decree where he can have benefit from further proceedings, in 
 case adverse party will not revive, as defendaht must revive before he 
 can appeal from a decree against him. When suit abates before .bring- 
 ing appeal, it follows he has an interest to revive wherever appeal lies, 
 and where he would be absolutely without remedy excepting by a re- 
 vival and an appeal. (Anderson v. White et al. 10 Paige's R. 578-9, 
 675.) See p. 86-8, infra. 
 
 In New-York, if by death of a party to an appeal to the chancellor 
 (from decision of a surrogate, circuit judge or vice-chancellor under 
 the late organization of that court,) his intere^^t is not cast upon his 
 heirs or personal representatives, the proceedings must be revived 
 upon a petition in the nature of a bill of revivor and supplement. 
 The proper mode to compel the new parties to answer such petition 
 and the petition of appeal is to serve a subpcsna as in the case of a bill 
 of revivor and supplement, or if absentees, by ad\'€rtising the usual 
 order. Jauncey etal. v. Rutherford, 9 Paige's R. 279, 275, el. teq. 273.
 
 86 FRAME AND END OF THE [ChAP. I. 
 
 titled upon the death of a prior tenant under tlie 
 same settlement(^), the suit cannot be continued 
 
 87 by bill of revivor, nor can its defects be supplied by 
 a supplemental bill. For though the successor in 
 the first case, and the remainder-man in the second, 
 have the same property which the predecessor, or 
 prior tenant, enjoyed, yet they are not in many cases 
 bound by his acts, nor have they in some cases 
 precisely the same rights. But, in general, by an 
 original bill in the nature of a supplemental bill (1) 
 the benefit of the former proceedings may be ob- ' 
 tained(z^). If the party whose interest is thus deter- 
 mined was not the sole plaintiff or defendant, or if 
 the property which occasions a bill of this nature 
 affects only a part of the suit, the bill, as to the other 
 parties and the rest of the suit, is, as has been be- 
 
 Distinction be- forc obscrvcd Supplemental merely. — There seems 
 two bills as re- to bo tliis difference between an orio^inal bill in the 
 
 garda their ei- ~ 
 
 ^^"*- nature of a bill of revivor, and an original bill in the 
 
 nature of a supplement bill. Upon the first the 
 benefit of Ahe former proceedings is absolutely 
 obtained, so that the pleadings in the first cause, 
 and the depositions of witnesses, if any have been 
 r731 taken, may be used in the same manner as if filed 
 or taken in the second caiise(a:) ; and if any decree 
 has been made in the first cause, the same decree 
 shall be made in the secondly). But in the other- 
 
 (t) 2 Eq. Ca. Ab. 3, in marg; Os- (x) See Houlditch v. Marquis of 
 
 home V. Usher, 6 Bro. P. C. 20, Toml., Donegall, 1 Sim. & Stu. 491. 
 
 ed.; 1 Bro. P. C. 205; Lloyd v. (y) CZore v. lVor<Ze«, 2 Vern. 548 ; , 
 
 Johnes, 9 Ves. 37. Minshull v. Lord Mohun, 2 Vern . 
 
 («) 9 Ves. 54, 55. 672 ; 1 Eq. Ca. Ab. 83 ; 1 Atk. 89. 
 
 (1) See Woods v. Woods, note to p. 119.
 
 S. III.] SEVERAL KINDS OF BILLS. 87 
 
 case a new defence may be made ; the pleadings 
 
 and depositions(z) cannot be used in the same man- S8 
 
 ner as if filed or taken in the same cause ; and the 
 
 decree, if any has been obtained, is no otherwise 
 
 of advantage than as it may be an inducement to 
 
 the court to make a similar decree (a). 
 
 The voluntary alienation of property pending a ^^^''\ninuiiu. 
 suit by any party to it, is not permitted to affect 
 the rights of the other parties if the suit proceeds 
 with out disclosure of the fact, except as the alienation 
 may disable the party from performing the decree of 
 the court (b). Thus, if pending a suit by a mort- 
 gagee to foreclose the equity of redemption, the 
 mortgagor makes a second mortgage, or assigns the 
 equity of redemption an absolute decree of fore- 
 closure against the mortgagor will bind the second 
 mortgagee, or assignee of the equity of redemption, 
 who can only have the benefit of a title so gained 
 by filing a bill for that purpose (c). But upon a 
 bill by a mortgagor to redeem, if the mortgagee 
 assigns pendente lite, the assignee must be brought [74] 
 before the court by the mortgagor, who cannot 
 otherwise have a re-conveyance of the mortgaged 
 property (d). The bill necessary in the last case is 
 merely supplementary ; but in the former, the bill 
 
 (z) Earl of Peterhoroughy. Duck- the text; quoted in Story's Eq. PI. 
 
 ess of Norfolk, Prec. iii Chan. 212; n. 1 to § 350, p. 402, 4th ed. 
 see also Coke v. Fountain, 1 Vern. (h) 2 Ves. & B. 205, 20G ; 4 Dow. 
 
 413, aiiid City of London V. Perkins, P. C. 435. [Cook v. Mancisso, 5. 
 
 3 Bro. P. C. 602, Toml. ed., as to Jolins.C. R.89. Bat Bee L' Estrange 
 
 reading in one cause depositions taken v. Robinsott, 1 Hogan, 202.] 
 iu another. (c) 2 Atk. 175; 11 Ves. 199. 
 
 (a) See Lloyd v.Johnes,9\es. Jr. (rZ) 11 Ves. 199 ; and see Wether- 
 
 37. And the commentary of Ld. ell v. Collins, 3 Madd. 2'».'). [Also 
 
 Eldon, Id, 54, 55, on the passage in Metcalfe v. Pulcertoft, 2 V. &. B. 
 
 200.]
 
 -^ FRAME AND END OF THE [ChAP. I. 
 
 must be an original bill in the nature of a cross bill, 
 to redeem the mortgaged property. If the party 
 89 aliening be plaintiff in the suit, and the alienation 
 
 does not extend to his whole interest, he may also 
 bring the alienee before the court by a bill, which, 
 though in the nature of an original bill against the 
 alienee, will be supplemental against the parties to 
 the original suit, and they will be necessary parties 
 to the supplemental suit only so far as their inter- 
 ests may be affected by the alienation (c). Gene- 
 rally, in cases of aWensition 2yendente lite the alienee 
 is bound by the proceedings in the suit after the 
 alienation, and before the alienee becomes a party 
 to it(d); and depositions of witnesses taken after 
 the alienation, before the alienee became a party 
 to the suit, may be used by the other parties against 
 the alienee as they might have been used against 
 the party under whom he claims (^). 
 
 Having considered generally the distinctions be- ^ 
 [75] tween the several kinds of bills -by which a suit 
 becomes defective or abated may be added to or con- 
 tinued, or by which the benefit of the suit may be 
 obtained, it remains in this place to consider more 
 particularly the frame of the first three of those 
 
 (c) There is an instance, in which (d) It may be observed, however, 
 
 the court, in a case of this kind, al- that the alienee may by supplemen- 
 
 lowed an alienee of a plaintiff to par- tal bill, in the nature of an original 
 
 ticipate in certain interlocutory pro- bill, make himself a party to the suit 
 
 ceedings, without previously requiring (1). Foster v. Deacon 6 Madd. 59 • 
 
 a supplemental bill to be filed for the and see Sinks v. Binks, reported 2 
 
 purpose of making him a party to the Bligh, P. C. 593, note, 
 
 suit. Toosey v. Burchell, 1 Jac. R. (e) See Garth v. Ward, 2 Atk. 174. 
 159. 
 
 « 
 
 (1) See' note to p. 82.
 
 S. III.] SEVERAL KINDS OF BILLS. 89 
 
 90 
 
 Frame of snp- 
 
 kinds. The other two will form part of the subject 
 to be considered under the next head. 
 
 1. A supplemental bill must state the original ^ 
 bill (1), and the proceedings thereon ; and if the &TproS 
 supjJlemental bill is occasioned by an event subse- 
 quent to the original bill, it must state that event, 
 and the consequent alteration with respect to the 
 parties ; and, in general, the supplemental bill must 
 pray, that all the defendants may appear and answer 
 to the charges it contains. For if the supplemental 
 bill is not for a discovery merely, the cause must be 
 heard upon the supplemental bill at the same time 
 that it is heard upon the original bill, if it has not 
 been before heard ; and if the cause has been before 
 heard, it must be further heard upon the supple- 
 
 (1) The 49th order of Aug. 1841, declares, that "it shall not be Contents of « 
 necessary in any supplemental bill to set forth any of the statements bin?'^™*^° 
 in the pleadings in the original suit, unless the special circumstances 
 of the case may require it." 
 
 "Ail that is required" in a supplemental bill "is, that the plaintiff 
 should state so much of the case as shpws that there was an equity." 
 And in a case where he states that an injunction has been granted 
 against the interference of certain directors with the funds of a com- 
 pany, he states sufficient to show that there was an equity for restrain- 
 ing a director subsequently elected from joining in interfering with 
 those funds. Vigers v. Lord Audley, 9 Sim. 72. 
 
 [Seethe form of a "supplemental bill to obtain further discovery 
 from a defendant, to put new matter in issue and add parties, where 
 the proceedings are in such a state that the original bill cannot be 
 amended fur that purpose." Willis, 326. and observe the notes there. 
 Also, for other forms of supplemental bills, see Equity Drafts. ('Jd 
 edit.) 619,622, 523, 525, 526, 527, 528. Also a supplemental bill in 
 aid of a decree. Willis, 340.] 
 
 The practice in New-Jersey is not to reiterate substantially the 
 charges of the original bill, but set them ont by way of reference and 
 charge the new and additional facts by way ot supplement. Edgar v. 
 Clevenger, 2 Green's C. R. (N. J.) 465, 464.
 
 90 FRAME AND END OF THE [ClIAP. I. 
 
 mental matter (/). If indeed the alteration or 
 acquisition of interest happens to a defendant, or a 
 person necessary to be made a defendent, the sup- 
 plemental bill may be exhibited by the plantifF in 
 the original suit against such person alone, and 
 may pray a decree upon the particular supplemental 
 matter alleged against that person only (g) ; un- 
 less, which is frequently the case, the interests of 
 
 91 the other defendants may be affected by that decree. 
 [76] Where a supplemental bill is merely for the pur- 
 pose of bringing formal parties before the court as 
 defendants, the parties defendants to the original 
 bill need not in general be made parties to the sup- 
 plemental (h) (1). 
 
 (/) 2 Madd. R. 60. (h) See Brown t. Martin, 3 Atk. 
 
 (g) See Brown v. Martin, 3 Atk. 217. (See pp. 74, 75 and notes, supra. 
 217. 
 
 Parties to • iup- 
 
 (1) Where a bill is filed by one of two next of kin against the exe- 
 plemental bill, cutors of a testator, and in consequence of an objection taken by the 
 answer of the executors for want of parties, a supplemental bill is 
 afterwards filed to bring another next of kin before the court, the 
 executors must be parties to the supplemental bill, in order that they 
 may have an opportunity of stating upon the pleadings any case they 
 may have as against such other next of kin. Jones v. Howells, and 
 Jones V. Godsall, 2 Hare, 342. 
 
 Where one of several co-plaintiffs in an original suit mortgages his 
 interest and becomes insolvent, defendants in such original suit who 
 are trustees for the plaintiffs are necessary parties to a supplemental 
 bill filed by the other co-plaintiffs against the mortgagee and provisional 
 assignee ; for otherwise the accounting parties, the trustees, might 
 not know till the hearing to whom they were to account. , Fearij v. 
 Stephenson, 1 Beav. 42. 
 
 In order to determine a question as to parties to a supplemental bill 
 depending on facts alleged in the original bill, the court is bound 
 to look at the allegations in the original bill. Pinkus v. Peters, 5 
 Beav. 253. 
 
 On this subject see also Greenwood v. Atkinson, note to p. 75, supra^ 
 and Collins v. Collins, note to p. 74, supra.
 
 S. III.] SEVERAL KINDS OF BILLS. 91 
 
 2. A bill of revivor must state the original bill (1), ~f ^revT^rf^'Jid 
 and the several proceedinfrs thereon, and the abate- thereoT''^ 
 ment ; it must show a title to revive (i), and charge, 
 that the cause ought to be revived, and stand in 
 the same condition with respect to the parties in 
 the bill of revivor (1) as it was in with respect to 
 the parties to the original bill at the time the abate- 
 ment happened ; and it must pray that the suit may 
 be revived accordingly. It may be likewise neces- 
 sary to pray that the defendant may answer the bill 
 of revivor, as in the case of a requisite admission of 
 assets by the representative of a deceased party (A-). 
 
 (i) Com. Rep. 590. such a bill, Willis, 345.] Prac. Reg. 
 
 (*) [Douglat V. Sherman, 2 90, Wy. Ed. 
 Paige's C. R. 358. See the form of 
 
 (1) The 49th order of Aug. 1841, declares, that "it shall not be Contentt of • 
 necessary in any bill of revivor to set forth any of the statements in 
 the pleadings in the original suit, unless the special circumstances of 
 the case may require it." 
 
 Prior to this order, it was necessary that a bill of revivor against Kecesiity for 
 new parties should set forth so much of the orijiinal bill as shows the to°r^T^Te. 
 plaintiff's title to revive : otherwise it was demurrable. Phelps v. 
 Sprowle, 4 Sim. 318. 
 
 And even now it is necessary for a plaintiff in a bill of revivor to 
 state enough to show his title to revive the original suit against the 
 defendant to the bill of revivor, and the precise character in which the 
 defendant is brought before the court. For the statements of the bill 
 of revivor cannot be explained by importing into it the statements of 
 the original bill : for if that were allowed, the defendant to the bill of 
 revivor could not safely demur until he had taken a copy of the origi- 
 nal bill. Grijfuhs v. Rickitis, 3 Hare, 484. 
 
 (1) If a defendant dies, having appointed two executors, and only Executor who 
 
 one of them proves, it is sufficient for the plaintiff to revive the suit ^"^ °°' Pi'o^e"* 
 ' '^ not a neceisary 
 
 against that executor. Strickland v. Sirickland, 12 Sim. 463. party. 
 
 When the suit has abated by tiie de^th of a co-plaintiff, whose right where the par- 
 devolves to his representatives, it can only be revived by a bill, to ^^' l'^i^l°J^^'. 
 
 which these representatives, the other plaintiff:^, and all the defendants ceasary parties 
 
 to a bill of revi' 
 
 to the original bill are parties. Cave v Cork, 12 Law J. (N. S.) 166, vor. 
 V. C. B.
 
 [77] 
 
 92 FRAME AND END OP THE [ChAP. L 
 
 In this case, if the defendant does admit assets, the 
 cause may proceed against him upon an order of 
 revivor merely ; but if he does not make that ad- 
 mission, the cause must be heard for the pui-pose of 
 obtaining the necessary accounts of the estate of 
 
 93 the deceased party to answer the demands made 
 against it by the suit ; and the prayer of the bill, 
 therefore, in such case usually is, not only that the 
 suit may be revived, but also, that in case the de- 
 fendant shall not. admit assets to answer the pur- 
 poses of the suit, those accounts may be taken, and 
 so far the bill is in the nature of an original bill. 
 If a defendant to an original bill dies before putting 
 in an answer, or after an answer to which exceptions 
 have been taken, or after an amendment of the bill 
 to which no answer has been given, the bill of re- 
 vivor, though requiring in itself no answer, must 
 pray that the person against whom it seeks to revive 
 the suit may answer the original bill, or so much of 
 it as the exceptions taken to the answer of the 
 former defendant extend to, or the amendment 
 remaining unanswered. 
 
 Upon a bill of revivor the defendants must answer 
 in eight days after appearance, and submit that the 
 suit shall be revived, or show cause to the contrary ; 
 and in default, unless the defendant has obtained an 
 order for further time to answer, the suit may be re- 
 vived without answer, by an order made upon motion 
 as a matter of course (^)(1). The ground for this 
 
 (I) See Harris v. Pollard, 3 P. Wms. 348» 
 
 (l) By the 61st order of May, 1845, "the plaintiff in a bill of re- 
 vivor, or of revivor and supplement, is entitled as of course, upon 
 motion or petition, to the common order to revive, if a defendant, hav-
 
 S. III.] SEVERAL KINDS OF BILLS. 94 
 
 is an allegation that the time allowed the defendant 
 to answer by the course of the court is expired, and 
 that no answer is put in ; it is therefore presumed 
 that the defendant can show no cause against revi- 
 ing the suit in the manner prayed by the bill (in). 
 An order to revive may also be obtained in like 
 manner if the defendant puts in an answer submitting 
 to the revivor, or even without that submission, if 
 he shows no cause against the revivor. Though the 
 suit is revived of course in default of the defend- [78] 
 ant's answer within eight days, he must yet put in 
 an answer if the bill requires it : as, if the bill seeks 
 an admission of assets, or calls for an answer to the 
 original bill, the end of the order of revivor being 
 only to put the suit and proceedings in the situation 
 in which they stood at the time of the abatement, 
 and to enable the plaintiff to proceed accordingly. 
 And notwithstanding an order for revivor has been 
 thus obtained, yet if the defendant conceives that 
 the plaintiti' is not entitled to revive the suit against 
 him, he may take those steps which are necessary 
 to prevent the further proceeding on the bill, and 
 
 (m) The court, after abatement of Roundell v. Currer, 6 Ves. 250, ex- 
 a suit, has acted witliout revivor in cept proceedings to compel reviver, 
 some instances, where the rights of or to prevent injury to the surviving 
 the parties have been fully ascer- parties, if the persons entitled to re- 
 tained by decree, or by subsequent vive neglect to do so. [See Leggett 
 proceedings; but iu general revivor -v. Dubois, 2 Paige C. R. 213; and 
 is necessary to warrant any proceed- ante p. 69, note.] 
 ing after abatement, 1 Ves. 186; 
 
 ing appeared in person or by his own solicitor, does not within eipht 
 days after such appearance plead or demur to the whole bill, or to so 
 much thereof as prays the revivor." And by the G2d order, where 
 an appearance has been entered for the defendant by the plaintiff, and 
 the defendant does not plead or demur within eight days afterwards, 
 the court may make an order to revive, on motion upon notice. 
 
 95
 
 94 V FRAME AND END OF THE [ChAP. I. 
 
 which will be noticed in treatinor of the different 
 modes of defence to bills of revivor ; and though 
 ^*^ these steps should not be taken, yet if the plaintiff 
 
 does not show a title to revive he cannot finally have 
 the benefit of the suit when the determination of the 
 court is called for on the subject {n), 
 
 If a decree be obtained against an executor for 
 payment of a debt of his testator, and costs, out of 
 the assets, and the executor dies, and his represen- 
 tative does not become the representative of the 
 testator, the suit may be revived against the repre- 
 sentative of the testator, and the assets of the tes- 
 tator may be pursued in his hands, without reviving 
 against the representative of the original defend- 
 ant (^). 
 
 After a cause is revived, if the person reviving 
 finds the original bill to require amendment, and 
 the pleadings are in such a state that amendment 
 [79] of the bill would be permitted if the deceased party 
 were living, the bill may be amended notwithstand- 
 ing the death of that party, and matters may be 
 inserted which existed before the original bill was 
 filed, and stated as if the deceased party had been 
 living {p). 
 
 After a decree a defendant may file a bill of re- 
 vivor, if the plaintiffs, or those standing in their 
 right, neglect to do it {q) (1). For then the rights 
 
 (n) 3 P. Wms. 348. defendant or his representative, if 
 
 (0) 3 Atk. 773 ; and see Johnson he or they have an interest in the 
 V. Peck, 2 Ves. 465. further prosecution of the suit, may 
 
 (p) Kelips v. Paine, 15 March, revive, if the plaintiffs, or those stand- 
 
 1745 ; Philips v. Derhie, Dick. 98. ing in their right, neglect so to do, 
 
 (g) The general proposition, that a seems to be now fully established. 
 
 (1) Where a suit has become abated after a decree for an account,
 
 S. III.] SEVERAL KINDS OF BILLS. 95 
 
 of the parties are ascertained, and plaintiffs and de- 
 fendants are equally entitled to the benefit of the ^^ 
 decree, and equally have a right to prosecute it (r). 
 The bill of revivor in this case, therefore, merely 
 substantiates the suit, and brings before the court 
 the parties necessary to see to the execution of the 
 decree, and to be the object of its operations, rather 
 than to litigate the claims made by the several par- 
 tics in the original pleadings (s), except so far as 
 they remain undecided. In the case of a bill by 
 creditors on behalf of themselves and other cre- 
 ditors, any creditor is entitled to revive (t). A suit 
 become entirely abated may be revived as to part [80] 
 only of the matter in litigation, or as to part by one 
 bill, and as to the other part by another. Thus, if 
 the rights of a plaintiff in a suit upon his death 
 become vested, part in his real, and part in his per- 
 sonal representatives, the real representative may 
 revive the suit so far as concerns his tide, and the 
 personal so far as his demand extends (u). 
 
 See Kent v. Kent, Prec. in Chan. 1 Eq. Ca. Ab. 2. 
 
 197; 1 Eq. Ca. Ab. 2 ; 2 Vern. 219, (<) That is, of course, after he hath 
 
 297 ; Williamii v. Cooke, 10 Ves. proved his debt. See Pitt and the 
 
 406 ; Horwood v. Schmedes, 12 Ves. creditors of the Duke of Richmond, 
 
 311. And see Gordon v. Bertram, 1 Eq. Ca. Ab. 3 ; and see Dixon v. 
 
 1 Meriv. 154; Adamson v. Hall, 1 Wyatt, 4 Madd. 392 ; 1 Sim. &. Stu. 
 
 Turn. R. 258; Bolton v. Bolton, 2 494. And, in such a suit, the per- 
 
 Sim. &. Stu. 371. sonal representative of one of the 
 
 (»■) See, however, Anon. 3 Atk. plaintiffs deceased may revive. Bur- 
 
 691, and Lord Stowell v. Cole, 2 ney v. Morgan, 1 Sim. & Stu. 358. 
 
 Vern. 296. (u) Ferrers v. Cherry, 1 Eq. Ca. 
 
 («) See Finch v. Lord Winchelse ', Ab. 3, 4. 
 
 and the plaintiff neglects to revive the suit, a defendant who is in- Bill of revivor 
 terestpd in the account may file a bill to revive it an I prosecute the ^'jift*'^ * ^''^^'^' 
 decree, aUliough he culd not have filed tho original bill. Demynes v. 
 Morris, 1 M. & C. 213. 
 
 10
 
 97 FRAME AND END OF THE [ChAP. L 
 
 o/re^ivof ''and 3. A bill of revivof and supplement is merely a 
 supplement. compound of those two species of bills, and. in its 
 
 separate parts must be framed and proceeded upon 
 
 in the same manner (1). 
 III. Bills in the III. Bills in the nature of original bills, though 
 
 nature of ongi- ^ ' - o 
 
 Tho'ir'diflerent occasiouod by former bills, are of eight kinds : 
 "* ^" 1. Cross-bills. 2. Bills of review, to examine and 
 
 reverse decrees signed and enrolled. 3. Bills in the 
 nature of bills of review, to examine and reverse 
 decrees either signed and enrolled, or not, brought 
 by persons not bound by the decrees. 4. Bills 
 impeaching decrees upon the ground of fraud. 5. 
 Bills to suspend the operation of decrees on special 
 circumstances, or to avoid them on the ground of 
 matter subsequent. 6. Bills to carry decrees into 
 execution. 7. Bills in the nature of bills of revivor, 
 And 8. Bills in the nature of supplemental bills. 
 
 1. Cross-bills, 1. A cross-bill is a bill brought by a defendant 
 
 ■when proper, . i • • rr^ / \ i • • n 
 
 andhowtramed. agamst a plamtiii (x), or other parties m a lormer 
 L J bill depending, touching the matter in question in 
 
 (x) It has been decided, that a Glegg v. Legh, 4 MAdd. 193; Parker 
 cross-bill may be filed in Chancery to v. Leigh, 6 Madd. 115. 
 an original bill in the Exchequer (2). 
 
 Revivor and sup- 0) Where a suit abates after a general demurrer for want of, equity 
 plement. has been filed, but before it has been heard, the plaintiff, or a person 
 
 claiming in the same right, is at liberty to file a bill of revivor and 
 supplement, alleging such supplemental matter as may be necessary 
 to show by and against whom an ord t to revive may properly be ob- 
 tained ; but he is not at liberty to claim the same or additional relief 
 by adding supplemental matter in corroboration of the original claim, 
 and not required for the purpose of showing by and against whom an 
 order to revive may pn perly be obtained. Bampion v. Birchall, 5 
 Beav. 330. See as to original bill in nature of revivor and supple- 
 ment, p. 86, note. 
 
 (2) See note to p. 6, supra.
 
 S. III.] SEVERAL KINDS OF BILLS. 98 
 
 that bill («/) (1). A bill of this kind is usually- 
 
 (y) For an example of the sense Ves. J. 284, and see Piggott v. Wil- 
 in which this proposition is to be un- Hams, 6 Madd. 95. [Galatian v. 
 derslood, see Hillon v. Barrow, 1 Erwin, 1 Hopk. R. 58.] 
 
 (1) Cross-bills, as well as many other branches of modern pleading origin and use* 
 and procedure, have been traced by analogy to the Roman civil law. ® cross-bin 
 (See 2 Bro. Civ. &. Ad n. Law, c. 8; Gilbert's Forum Romanum, c. 
 2-4 : quoted by Story, Eq. PI. c. 2, } 14, note 3, J 402.) " The practice," 
 (the late chancellor of New-York observed, in White v. Buloiil, 2 
 Paige's R. 164,) " in relation to cross-bills, does not appear to be well 
 "settled either in this state or in the English Court of Chancery. It 
 " may, therefore, be necessary to look into the origin of the practice 
 " and notice the changes it has undergone, for the purpose of apply- 
 "ing its principles to the present practice of this court under the new 
 "mode of taking proofs openly, or in open court before the circuit 
 "judges, as was done in the late equity courts. The bill and cross- 
 " bill were derived from the civil law; and they answer to the conien' 
 " /to and rec'.nveniio in ihe Roman tribunal, li t\ie reconi entio came 
 " in before the litis contesla io or joining of the issue in the suit, it was 
 " in time, and bo'h causes went on pari passu. The same probatory 
 " term was a.ssigned to both ; and the same time was given for publi- 
 " cation. It is from this we find in the old books of practice, that the 
 " cross-bill should be filed before or at the time of answering the 
 " original bill, which generally answered to the litis conteslatio .oi the 
 " Roman law. If it did not come in before that time, the causes could 
 "not proceed together, as the original cause was then gone from the 
 *^ prcctoriam forum to the Judices. (2 Bro. C. & A.L. 348. How. Eq. 
 " side, 287.) Where the reconvenlio or cross-bill came in after the « 
 
 " lilis contestatio or joining of issue, it did not stop the complainant in 
 " the examination of his witnesses, unless the defendant in the recon- 
 " ventio was in contempt for not answering. If it came in even after 
 "publication, it was not too late, but the party must go to a hearing 
 "on the testimony taken in the original suit, and on the answer of the 
 "defendant in the cross-suit; because, after publication passed, no 
 "witnesses could be examined to the same matter as to which proofs 
 •* had already been taken and published. (Cur. Cane. 337. Gilb. For. 
 "Rom. 47. Ward v. Eyles, Mosel, 382.) The English practice at 
 " the present day appears to be, to grant an order of course to stay 
 " puljlication until a fortnight after the answer to the cross-bill has 
 "conie in, where the cross-bill has been filed in time, that is, before 
 "the issue has been joined in the original cause. (Hinde, 54. 1 Atk. 
 "Rep. 21) But, wher." the cross-bill is not filed until the original 
 " cause has been proceeded in,, the motion to enlarge publication must
 
 98 FRAME AND END OF THE [CuAP. I. 
 
 brought to obtain either a necessary discovery, or 
 
 "be special, and upon notice to the adverse party, that the court may 
 "judge of it on the circumstances. (Ayleil v. Easy, 2 Ves. sen. 336.) 
 "In no case is the complainant in the original suit compelled to stay 
 " proceedings therein without a special order for that purpose. Noel 
 " V. King, 2 Mad. Rep. 392.) After both causes are at issue, or in a 
 «' situation to be heard, the complainant in the cross-suit may, on mo- 
 " tion, have an order that both causes be heard together ; a copy of 
 " which is to be served on the solicitor for the complainant in the 
 "original cause. But, notwithstanding this order, the delay of the 
 *' complainant in the cross-suit will not be perinitted to delay the hear- 
 "ingof the original cause. (How. Eq. side 289.) The practice on 
 "this subject in the Irish court of chancery is undoubtedly more con- 
 "ducive to the ends of justice, and is best adapted to our system of 
 "taking testimony orally. There, the crosi=!-biil must be filed on oath, 
 " and the certificate of counsel that it is not intended for delay and 
 "that it is necessary for the attainment of justice in the cause; and 
 "the proceedings in the original cause are not to be delayed in any 
 "case, unless upon the special order of the court, founded upon notice 
 "of the application to the complainant therein." [And see Rule 42 of 
 (late) N. Y. Chancery; and the Irish practice, above alluded to in 
 Ellioft V. Milieu, and Millett v. EllioU, 1 Hogan's C. R. 125; and the 
 order from O'Keefe's Rules there given. By rule of the Irish court 
 of chancery, cross-bill will be taken off the file, if put on without a 
 certificate of counsel. If the certificate of counsel has been subjoined, 
 but the complainant has not filed the necessary affidavit, no subpoena 
 to answer can issue. Elliot v. Millet, 1 Hogan's R. 125.] 
 
 Persons not party defendant to the original cannot file a cross-bill, 
 but if so, and it is answered, it will not be dismissed on motion before 
 final hearing. It might have been demurred to. Whether a decree 
 can be made thereon, was a question reserved for the hearing, m Payne 
 V. Cowan, and Naylor v. Payne et al. 1 Smedes & Marshall's C. R., 
 Mississippi, 85, 26. 
 
 [By the English practice, if a bill and cross-bill are filed, the com- 
 plainant in the original bill has a right to the first answer and may move 
 to stay proceedings in the cross-cause till the original bill is answered, 
 although the complainant in the cross-bill may be in a situation to 
 enforce an answer first. Harris v. Harris, 1 Turn. &. R. 165.] 
 
 So in Massachusetts by rule of chancery or equity side of Supreme 
 Judicial Court, defendant in the cross-bill cannot be compelled to 
 answer it until complainant therein has answered the original. (24 
 Pick. R. 413, R. 13.) 
 
 In New-York it is held that the proper time of filing cross-bill where
 
 S. HI.] SEVERAL KINDS OF BILLS. 98 
 
 fall relief to all parties. It frequently happens, and 
 
 such bill is necessary, is at the time of putting in the answer and 
 before issue by replication thereto, and as the matters of defence upon 
 which a cross-bill is founded must be stated in the answer to the origi- 
 nal suit as well as in the cross-bill, it can be seldom necessary to delay 
 the latter until after the cause is at issue. And if not filed until after 
 issue, defendant is not entitled to order to slay proceedings until an- 
 swer is made to his cross-bill, without showing some excuse for his 
 neglect. {Ining v. De Kay, 10 Paige's R. 322 et seq. 319.) 
 
 And to entitle to stay proceedings in the original until answer to 
 cross-bill, all the complainanrs in the cross-bill must join in the appli- 
 cation ; and the matters in the cross-bill must not be stated on infor- 
 mation and belief, but must be sworn to by some one knowing the facts. 
 The affidavit of such person should be obtained by complainant to 
 corroborate their statement of information and belief. (Talmage v. 
 Pell et al. 9 Paige's R. 412, 413, 410.) 
 
 In Massachusetts it is held, that as a general rule, it should be filed 
 before publication of the evidence in the original suit, unless plaintiff 
 in the cross-bill will go to a hearing on the proofs already published. 
 But the court, if justice and equity of the case require, will, on motion, 
 allow a cross-bill to be filed after the publication, and even after hear- 
 ing of the cause, if it should thereupon appear that a cross-bill is 
 necessary to a complete and equitable decree in the original suit: 
 But otherwise a cross-bill filed after hearing and without leave of 
 court cannot be sustained. A cross-bill, if filed in season, may, in 
 Massachusetts, be sustained to obtain an equitable set-off, and gene- 
 rally, it should be filed before issue joined, (see p. 99, note, infra.) 
 But the court say that though a cross-bill may, if justice require, be 
 filed after issue, and even hearing, the proceeding in the original] cause 
 will not be delayed in any case without special order on notice of 
 application to the adverse party ; and in the above case where great 
 latches were imputable to defendants if they intended to avail of a 
 set-off, the original cause having been pending five or six years, before 
 cross-bill filed, and that bill also pending for a year since, the court 
 refused to subjet^the plaintiff in the original to further delay and dis- 
 missed the cross-bill. (Cartwright and another v. Clark, 4 Metcalf 
 R. 109, 104.) 
 
 [In Field v. Schieffelin, 7 J. C. R. 260, it is said, that the court may, 
 at a hearing, direct a cross-bill to be filed, when it appears that the 
 first suit is insufficieiit to bring before the court the rights of the 
 parties, and the matters necessary to a full and just determination of 
 the cause. But see Sterry v. Servant, 1 lb. 62, and \\ hiie v. Buloid, 
 2 Paige's C.R. 164.]
 
 98 FRAME AND END OF THE [ChAP. I. 
 
 particularly if any question arises between two de- 
 
 [By the English practice, substituted service of a subpoena in a 
 cross-cause is enough. Gardiner v. Mason, 4 B. C. C. 478. Query — 
 Whether it would be allowed by the practice of the State of New- 
 York? See Sawyer v. Saicyer, 3 Paige's C. R. 263. 
 
 Service of process is made, upon the filing of a cross-bill. Ander' 
 son V. Ward, 5 Monroe's R. 420.] 
 
 See further pp. 99, 100 and notes, 
 n. In vrhat cases A cross-bill is filed to bring more fully before the court a subject 
 *'^tb''^5dbit'(i '^^t^^'" connected with the case made in the bill and which is necessary . 
 to a determination of the controversy. The necessity of a cross-bill 
 may arise as well between two defendants as between one or more 
 defendants and the complainant {Hubbard v. Turner and others, 2 
 Mc Lean's R. 539, 640, 519.) 
 
 [A defendant cannot move for or obtain cross relief against the com- 
 plainant, unless he files a cross-bill. Hore v. Collins, 1 Hogan, 193. 
 And one defendant, it has been said, in Kentucky, cannot have a decree 
 against another without a cross-bill. Talbot v. M^Gee, 4 Monroe's 
 R. 378. But this may be questioned. Elliot v. Pell, 1 Paige's C. R. 
 263. Such a bill cannot contradict the assertions contained in the 
 original answer. Hudson v. Hudson's executors, I Randolph's R. 117. 
 A bill which does not pray that the cause may be heard at the same 
 time with another cause, and one decree be had in both, is not, in form, 
 a cross-bill. Wright v. Taylor, 1 Edwards' V. C. 226.] 
 
 [ft seems, that a cross-bill may set up additional facts not alleged in 
 the original bill where they constitute part of the same defence, rela- 
 tive to the same subject matter. Underhill v. Van Cortland/, 2 J. C. R. 
 339, 355. But it must be confined to the subject matter of the bill. 
 May V. Armstrong, 3 J. J. Marshall's R. 262.] 
 
 So, in Fletcher v. Wilson et al. 1 Smedes &. Marshall, C. R., Missis- 
 sippi, 391, 376, it was held that defendant cannot introduce new and 
 distinct subjects of litigation from those in original suit. But if he 
 have any claim upon the property he may assert it affirmatively in 
 cross-bill. 
 
 In Talmage v. Pell et al 9 Paige's R. 412, 413, 410, (on application 
 to stay proceedings of original bill until answer be made to a cross- 
 bill,) it was held, that where new matters of defence are discovered 
 after answer, but existed before, defendant should apply for leave to 
 file a supplemental answer instead of resorting to a cross-bill only. 
 
 In Kentucky and some other states, answers in nature of cross-bills, 
 are allowed. But it is not the estab ished English practice. The 
 benefit of a cross-bill has been given in England to an answer ; but it 
 is regarded as a departure from the general rule. And the Supreme
 
 S. III.] SEVERAL KINDS OF BILLS. 98 
 
 fendants to a bill, that the court cannot make a 
 complete decree without a cross-bill or cross-bills to 
 
 and Circuit Courts of the United States are governed in chancery 
 (not by the local state practice, see ante p. 1, note, but) by the English 
 practice. (Hubbard v. Turner et al 2 Mc Lean's R. 639, 540, 519.) 
 
 But a cross-bill is now unnecessary in some cases where it was for- 
 merly required ; as in bill for specific performance defendant sets up a 
 different agreement and offers to perform it; the old course would have 
 required a cross-bill, but now the court will decree specific perform- 
 ance of agreement actually set up and established by the defence. 
 
 But where no off r is thus made, it seems tlie plaintiff cannot have 
 a specific performance, as it is not the case stated in his bill ; but 
 should on coming in of defendant's answer amend or move to dismiss 
 without prejudice. (Story Eq. PI. J 394, note, and authorities there 
 cited.) 
 
 The cross-bill is derived from the Common Law — see Story Eq. PI. 
 { 402. 
 
 If the original bill be to set aside agreement or conveyance, or an 
 award based thereon, defendant should file a cross-bill in order to 
 establish the conveyance, in the event of a refusal to sot it aside. 
 (Carnochan v. Christie, 11 Wheaton R. 446; 6 Cond. R. 382, 394.) 
 
 To a suit institutf'd to obtain the benefit of an executed contract, Crossbill as a 
 
 J- /-ii -.1 1 <-!• . deifnce to a suit 
 
 a defence tounded on a mistake as to the quantity of tlie interest in- for the benefit of 
 tended to pass, or on inadequacy of consideration, or on the substitu- contract'^''^'^ 
 tion of another contract, cannot be made by answer, but must be made 
 by a cross-bill. Richards v. Bayley, 1 Jones & Latouche, 120; Nash 
 V. Flyn, id. 162. 
 
 To a bill for a specific performance of a partnersliip, a defendant cross-biii as a 
 cannot make the misconduct of another partner available as a defence defence to a bill 
 
 ^,. T. ^°'" " specific 
 
 except by means of a cross-bill. Lnglind v. Curling, 8 Beav. 129. performance of 
 
 Where a suit is instituted by the lessees of an ecclesiastical corpo- cross-'bilf ofdis- 
 ration for an account and payment of the value of tithes, to which '•o^'cry against a 
 
 '^ ■' ' lessor of tithes. 
 
 fiuit the corporation are not parties, the occupiers, who are the defen- 
 dants thereto, cannot file a cross-bill against the corporation, as well 
 as aj^ainst the lessees, for a discovery and production of documents. 
 For such a suit is regarded as a mere possessory suit, and not as 
 establishing the riglit to tithe ; and therefore the corporation has no 
 interest in the suit. And it would be extremely mischievous if a 
 tenant in fee, whenever a dispute arises between his lessee and others, 
 were to be compelled to produce his title deeds at the request bf those 
 other persons, and for the purpose of destroying his own title. Tooth 
 V. Dean and Chapter of Canterbury, 3 Sim. 49. See further p. 99 
 -and notes.
 
 98 FRAME AND END OF THE [CnAP. I.. 
 
 bring every matter in dispute (y) completely before 
 the court, litigated by the proper parties, and upon 
 proper proofs. In this case it becomes necessary 
 for some or one of the defendants to the original 
 bill to file a bill against the plaintitf and other de- 
 
 99 fendants in that bill, or some of them, and bring the 
 litigated point properly before the court (z). A 
 cross-bill should state the original bill, and proceed- 
 ings thereon, and the rights of the party exhibiting 
 the bill which are necessary to be made the subject 
 of cross litigation, or the ground on which he resists 
 the claims of the plaintiff in the original bill, if that 
 is the object of the new bill. But a cross-bill being 
 generally considered as a defence (a) (1), orasapro- 
 
 (y) [Rogers v. M'Machan, J. J. ance, and he proves an agreement 
 
 Marshall's R. 37, Troop v. Height, 1 different from that insisted on by the 
 
 Hopk. C. R. 239.] plaintiff, and submits to perform the 
 
 (z) There is an instance, however, same, for, in such a case, if the court 
 
 in which this court will, it seems, decide in favor of that stated by the 
 
 contrary to the old practice, give the defendant, it will decree the same to 
 
 benefit of a cross-bill to a defendant be executed. Fife v. Clayton, 13 
 
 Bpon his answer, namely, where the Ves. 546 ; 15 Ves. 525. 
 
 original bill is for specific perform- (a) 3 Atk. 812. 
 
 (1) [Galatian v. Erwin, 1 Hopk. 58.] 
 
 Defendant in partition suit in chancery, in New- York, may set up 
 in answer as a defence to the suit, the fact that he is in equity entitled 
 to the whole premises of which partition is sought by the bill. Defen- 
 dant must proceed by cross-bill, if, in addition to the denial of a decree 
 for partition and a dismissal of the bill, he seeks full and affirmative 
 relief on his part by a decree for a transfer to himself of the legal title ■ 
 to the whole premises, or if a discovery is necessary to establish his 
 equitable defence. And where the new facts stated in the cross-bill - 
 constitute tlie grounds for an equitable defence to the original suit, as 
 well as for further affirmative relief against the defendants in the cross- 
 bill, it is proper to state such facts in the answer to the original bill, 
 if the same are known to the defendant at the time of putting in such 
 answer. {German v. Machin, 6 Paige's R. 290-1, 288.) 
 
 In Massachusetts, a cross-bill, if filed in season, (of which see note-
 
 S. III.] SEVERAL KINDS OF BILLS. 99 
 
 ceeding to procure a complete determination of a [82] 
 matter already in litigation in the court, the plaintiff 
 is not, at least as against the plaintiff in the original 
 bill, obliged to show any ground of equity to support 
 the jurisdiction of the court (/>). 
 
 A cross-bill may be filed to answer the purpose of a 
 plea^wis darrein continuance QX\hQCO\w\x\on\Q.\y(V). 
 
 {Ii) Dohle V. Potman, Hardr. 160. mentioned by Blackstone, in I Bl. 
 And see Sir John Warden's case, Rep. 132. 
 
 p. 98,) may be sustained to obtain an equitable set-off; and in such 
 ca.se, it is not necessary rhat plaintiff show any ground of equity as 
 against the plaintiff in the ori^'inaj bill to support tlie jurisdiction ; a 
 cross-bill being considered as a defence in the original su:t. To obtain 
 the benefit of such a defence the cross-bill must generally be filed 
 before the publication of the evidence and before issue joined ; and if 
 defendant has a counter demand against the [laintiff, he should regu- 
 larly insist on it in his answer. But a cross-bill may, if j;istice require, 
 be tiled a'ter issue and e^en hearing. {^Carlwright v. Clark, 4 Met- 
 calf'.s R. 109, 104.) 
 
 In Nevv-York, a cross-bill to let in a set-off which by the 2 Revised 
 Statutes 174, }40, may now be made in chancery as at law, is not ne- 
 cessary nor proper. It should be set forth in answer, in analogy to a 
 pjea of set-off and proved up m the hearing in support of the answer. 
 And no such set-off can be allowed in a foreclosure suit under the 
 Revised Statutes which cou'd not be allowed as a proper subject of 
 set-off in an analogous case at law for recovery of the mortgage debt. 
 Where defendant has not such le^al right of set-off, his cross-bill must 
 not only show the existence of a debt due from the complainants in 
 the foreclosure suit, but also that they are insolvent; so that injustice 
 would be done if such set-off be not allowed and defendant left to his 
 remedy against them by an independent suit. Or defendant must state 
 some other ground of equity in his cross-bill which would have been 
 sufRcient to sustain an original bill in this court for a set-off. {Irving 
 v. DeKny, 10 Paige's C. R. 322-3, 319.) 
 
 (1 ) It is of course to permit a defendant, who is discharged after 
 the bill is taken as confessed, or after answer, to put in an answer in 
 the nature of a plea puis darrein setting up that defence, unless com- 
 plainant stipulate to take no personal decree against the biinkrupt, or 
 his subsequently acquired property, or consent to dismiss his bill with- 
 out costs; or unless there was an allegation that the discharge was 
 obtained by fraud. But where compldinant as in this case, in opposi-
 
 ;99 FRAME AND END OF THE [ChAP. I. 
 
 Thus, where pending a snit, and after replication 
 and issue joined, the defendant having obtained a 
 release, attempted to prove it viva voce at the hear- 
 in f?, it was determined that the release not beinfr in 
 issue in the cause, the court could not tiy the fact, 
 or direct a trial at law for that purpose, and that a 
 new bill must be filed to put the release in issue. 
 100 In the case before the court, indeed, the bill directed 
 
 to be filed seems to have been intended to impeach 
 the release on the ground of fraud or surprise, and 
 therefore to have been a proceeding on the part of 
 the plaintiff in the original bill. But it was clearly 
 determined that without being put in issue in the 
 
 tion to the motion, made affidavit of his belief that the discharge was 
 |_ooJ fraudulent, and that he intended to contest its validity on that ground, 
 the proper course is to authorize defendant to bring forward such 
 defence by a cross-bill. ( Scoll v. Grant, 10 Paige, C. R. 485.) 
 
 In Smith v. Smith, 4 Paige 432, what was a bill for divorce a vinculo, 
 cf-c, the court held that complaiaaut's adultery, though after bill filed, 
 is a bar to his suit. If after answer, the defendant, through mistake 
 or inadvertence had neglected to set it up in her answer, she will be 
 permitted, if she apply the first opportunity for leave, to amend her 
 answer ; (or, even after trial of feigned issue, it seems, it is not too 
 late to set up the defence, if excuse be shown;) or, to file a supple- 
 mental answer to put that fact in issue, or a cross-bill in nature of a 
 pleap/as darrien continuance. The adultery of complainant, though 
 committed after suit brought and feigned issue awarded, would be as 
 effectual to bar the suit, if discovered in time, as if it had occurred 
 previously to the adultery of the wife. Upon a proper application, 
 therefore, even after trial of the feigned issue, and at any time before 
 the final decree, if such application be m ide immeliately after dis- 
 covery of the fact, the court will permit defendant to put in su h sup- 
 plenental answtT, or cross-bill in nature of plea fuis, 4'C.,for the pur- 
 pose of setting up this new defence. Whether such defence may be 
 by crdss-bill in nature of a bill of review, where the fact is not discov- 
 ered by defendant until after a final decree, is a question that seems 
 not decided. {Idem. p. 434-5, 438.) 
 
 For form of cross-bill, see [Willis, 364.]
 
 S. III.] SEVERAL KINDS OF BILLS. 100 
 
 cause by a new bill it could not be used in proof (c). 
 
 Upon hearing a cause it sometimes appears that 
 the suit already instituted is insufficient to bring 
 before the court all matters necessary to enable it 
 fully to decide upon the rights of all the parties. 
 This most commonly happens where persons in 
 opposite interests are co-defendants, so that the 
 court cannot determine their opposite interests upon [83] 
 the bill already filed, and the determination of their 
 interests is yet necessary to a complete decree upon 
 the subject-matter of the suit. In such a case, if 
 upon hearing the cause the difficulty appears, and a 
 cross-bill has not been exhibited to remove the 
 difficulty, the court will direct a bill to be filed, in 
 order to bring all the rights of all the parties fully 
 and properly for its decision ; and will reserve the 
 directions or declarations which it maybe necessary 
 to give or make touching the matter not fully in 
 litigation by the former bill, until this new bill is 
 brought to a hearing (d), 
 
 2. The obiect of a bill of review is to procure an 101 
 
 examination and reversal of a decree (^) made upon view: 
 a former bill, and signed by the person holding 
 
 (c) Hayne v. Hayne, 3 Ch. Rep. it by a cross-bill. Litouche v. Lord 
 19 ; 3 Swanst. 472, 474. See as to Duasany, 1 Sch. &l Lefr. 137. 
 filing a supplemental bill where a (e) There can be no bill of review 
 matter has not been properly put in upon a decree of the court on e.xcep- 
 issue, Jones v. Jones, 3 Atk. 110 ; 1 tions to a decree of commissioners of 
 Jac. & W. 339. charitable uses, under the statute. 
 
 (d) (See p. 98, note, supra.) If a See Windsor v. InhahUants of Farn- 
 creditor who hath come in under a Aam, Cro. Car. 40 ; Saul v. Wilson, 
 decree against his debtor require re- 2 Vern. 118. Nor, upon a decree of 
 lief for the purpose of assisting the this court confirming a judgment of 
 investigations before the master, the lord mayor, respecting tithes ia 
 which cannot be obtained by a re- London, under the statute 37 Hen. 
 hearing of the original cause he may, VIII. c. 12; Pridgeon's Case, Cro. 
 without direction of the court, seek Car. 351. 
 
 2. Bills of re-
 
 101 FRAME AND END OF THE [ChaP. L 
 
 the great seal, and enrolled (/). It may be brought 
 
 npon error of law appearing (g) in the body of the 
 
 L""*] decree itself (A), or upon discovery of new matter 
 
 for error of law. (ij (±y In tho first casc the decree can only be 
 
 (/) Tothill,47; Boh. Curs. Cane. (g) 1 Roll. Ab. 382. Venahlesv. 
 353; Taylor v. Sharp, 3 P. Wms. Foyle, 1 Ca. in Cha 4; Tottiill, 41. 
 371. [Gelstorfv. Codwise,! J. C. R. (A) Grice v. Goodwin, Prec. m 
 195; Wiser v. Blackly, 2 lb. 488; Chau. 2G0 ; 3 P. Wms. 371. 
 Furman v. Coe, on appeal, 1 C. C. E. (i) Le Neve v. Norris, 2 Bro. P. C. 
 96; Lansing v. Albany Insurance 73, Toml. ed. ; and see 17 Ves. 178. 
 Company, 1 Hopk. 102; Elliott v. This term includes new evidence of 
 Pell, 1 Paige's C. R. 263 ; Litt. Sell, facts put in issue, which would ma- 
 Ca. 125 ; Garner's administrator v. teriaily affect the judgment of the 
 Strode, 5 Litt. 315 ; .M'Cracken's court, 16 Ves. 350. See Or d v. Noel, 
 heirs, 1 Bibb, 455; Kenan's execu- 6 Madd. 127, which, although a case 
 tors V. Williamson, 1 Hay w. 350 ; relating to a sujjpletnental bill iu the 
 Bowyer V. Lewis, 1 Hen. &. Munf. nature of a bill of review, seems to 
 558; Ellsley v. Lane's executors, 2 show that the matter must be mate- 
 lb. 589 ; Anon, 2 Law Recorder rial, and such at the least as will 
 (Irish) 462.] raise a fit subject for judgment in the 
 
 cause. 
 
 Bill of review 0) "The mere propriety of a former decree cannot be questioned 
 
 qneetioniiig the by bill of review : it is only where there is error on the face of it that 
 
 of a former de- such a bill can be sustained." Haig v. Homnn, 8 CI. &- F. 321. 
 
 "*^ [A bill of revievw for error apparent must be for an error in law, 
 
 arising out of the facts admitted by the pleadings, or recited in the 
 
 decree itself as settled, declared or allowed by the court. It cannot 
 
 be sustained upon the ground that ths court has decided wrong upon 
 
 a question of fact. Webb v. Pell, 3 Paige's C. R. 368 ; and see 
 
 Dougherty v. Morgan'' s executors, 6 Monroe's R. 505.] 
 
 So in WMling el al. v. the Bank of the United Stales, 13 Peters, 14, 
 6 ; it being objected that no bill of review lies for errors of law, except- 
 ing where they appear on the face of the decree, the court by Justice 
 Story, said : That is true in the sense in wiiich the language is used 
 in the English practice. In England, the decree recite.s the substance 
 of the bill, pleadings and fatts on which the court founds its decree. 
 This is not ordinarily done in America. But the bill, answer and 
 other pleadings, with the decree, are properly considered the record. 
 Therefore the rule is the same in legal effect, although expressed in 
 different languaire, viz.: that the bill of review must be founded on 
 8ome error apparent upon the bill, answer, and other pleadings, and 
 decree; and that evidence at large cannot be gone into to establish
 
 S. III.] SEVERAL KINDS OF BILLS. 101 
 
 reversed upon the ground of the apparent error (k) ; 
 
 '(k) Lady Cramhorne v. Dalma- Prac. Reg. 94, Wy. Ed.; 4 Vin. Ab. 
 hoy, 1 CI). Rep. 231 ; Nela. Rep. 86; 414. 
 
 an objection to the decree, founded on the supposed mistake of the 
 court in its own d ductions from the evidence. 
 
 In Ohio, in Steien^i v. Hay el al., 15 Ohio R. 317-19, 313, it is held, 
 that if the comt was mi.^t.iken ns to matter of fact, it would seem to 
 be the more Correct cour-e to corrert the mistake on a rehearing there- 
 by reviewed; that it is not, it is believed, the practice of the English 
 court of chancery on the hearing of a petition of review to examine 
 the proofs in the case. But in that country the facts are found by the 
 court in first instance and if those facts sustain or are a proper foun- 
 dation for the decree, tlie bill of review must be dismi.-^sed. The facts 
 tiius found are conclusive in the CHse. In Ohio the bill, answers and 
 decree, const tuting what they call the record, is what coLiies before 
 the reviewing court. In that state, however, it has been held ^7 Id. 
 372j that the original bill, answers', exhibits, and depositions are open 
 for examination, the court examines the whole case and decides as if 
 the m:itter was open before ihem in the same situaiion as it was when 
 the decree was pronounced. If this course were not pursued where 
 the decree contiiins no statement of facts found or principles decided, 
 the b 11 for error in law would be useless. The difference between the 
 Ohio practice in drawing up and entering decrees and the practice in 
 En;iland and New-\ ork, it is said, accounts for the departure in Ohio 
 from what is elsewhere an established rule of proceeding. (^Ludlow's 
 heirs v. Kidd's heirs, 2 Id^ 405-6 ; Slradtr v. Heirs of Byrd et al. 7 
 Id. 332.) But where the facts t>re expressly found and stated in the 
 decree, there seems no reason why the English practice should be 
 departed from. (Sleiens v. Hay, supra.) 
 
 In Missis-ippi, if the chsc when decided was ready for final hearing 
 and the c<.urt erred in rendering tlie decree only, the whole case is not 
 re-opened ; hut the error in decree will be corrected so as to conform 
 to the law. Bict if it was not ready for final hearing the whole is 
 open for exannnaiion. (^Mercer, adminislratur, v. Stark, 1 Smedes & 
 Marshall C. R. 479.) 
 
 I In case of miscasting and miscounting, wl ere the matter demon- 
 stmtively appears from the decree itself to be mistaken, it may be 
 explained and leconciled by order. Seton on Decrees, 399, and cases 
 there.] 
 
 The original decree will bo reversed, because the testimony of an 
 incompetent wi ness who was off.red hy the prevailing party was 
 received in the original suit. {Ddle et al. \. Woods et al., \ 4 Ohio 
 Rep. (Gribwold'e) 125, 122.)
 
 101 FRAME AND END OF THE [ChAP. L 
 
 as if an absolute decree be made against a person^ 
 
 — — 1 ST ■ •- 
 
 So when the bill alleges title in several and the decree pursues its 
 allegations, but tlie proof shows title to recover in part of complain- 
 ants only. The probata and the allegata must correspond. (.Idem. 
 126, 122.) 
 
 Again, in Ohio, on bill of review in chancery to review the decree 
 of a county supreme court of that state, it was held too late to object 
 that the appeal from the common pleas was not regular {Brown v, 
 Haines et al. 12 Ohio R. 1.) The finding of the court below upon the 
 facts will be treated as a rule of practice, with not less respect than 
 the finding of a jury on question of fact, fairly submitted to them ; and 
 that finding will not be reversed on mere difference of opinion as to 
 the weight of evidence. If the party thought the facts of the case 
 wrongly determined, say in court, he should have asked a rehearing 
 rather than pursue a bill in the nature of a writ of error. (Buckley v. 
 Gilmore cj- Hifkins, 12 Ohio R. 75, 63.) 
 
 It does not lie on a decree in a petition for divorce in Ohio. It was 
 contended under the statute of that state declaring that all proceedings 
 under the acts concerning marriages and divorces shall be in chancery, 
 that all the incidents of a suit in chancery attach to these proceedings, 
 and among others the right of review. Such, say the court, could not 
 have been the intention of the legislature. Where a divorce is granted, 
 upon which one of the parties contracts new relations and a third 
 party acquires rights, it cannot be that a process could be had to re- 
 verse a decree, the consequence of which would be a severance of all 
 those new relations. Such anomalous mischief cannot be engrafted 
 on the practice of our courts except by clear and explicit legishitive 
 enactment. (Bascom v. Bascom, 7 Ohio R. 465, condensed from 7 
 Hammond R. 125, 2d part.) 
 
 Persons interested in the subject, though not parties to the original 
 bill, may become such to the bill of review ; and where, on overruling 
 demurrer, the decree is reversed, the bill of review, as to such new 
 parties, will be retained as a supplemental bill and stand for plea or 
 answer, and the cause be proceeded in upon original and supplemen- 
 tal bills. {Ludlow's heirs v. Kidd's heirs, 2 Ohio R. 405-6 ; condensed 
 from 2 Hammond 372.) In Bank of U. S.v. White et al, 8 Peters 
 268, 262, it was held that all the parties to the original decree ought 
 to join in the bill of review. But parties who cannot be benefitted by 
 a modification or reversal of t!ie decree should n t file the bill. 
 [Webb v. Pell, 3 Paige's C. R. 368.] If not aggrieved by the decree 
 no party to it can by the general principles of equity, claini a reversal, 
 whatever may have been his right to insist on the error at the original 
 hearing or on an appeal. {Whiting et al. v. The Bank of the United 
 States, 13 Peters 14, 6.)
 
 S. III.] SEVERAL KINDS OF BILLS. 101 
 
 who upon the face of it appears to have been at 
 the time an infant (/). A bill of this nature may be 102 
 
 brought without the leave of the court previously 
 given (?Ai)(l). But if it is sought to reverse a de- 
 cree signed and enrolled, upon discovery of some 
 new matter (n), the leave of the court must be first 
 obtained (o) ; and this will not be granted but upon 
 allegation upon oath that the new matter (j?) could 
 not be produced, or used (q) by the party claiming 
 the benefit of it at the time when the decree was 
 made (r). If the court is satisfied that the new 
 matter is relevant and material, and such as might 
 probably have occasioned a different determination r^^i 
 (s) it will permit a bill of review to be filed (t)(2). 
 
 (I) Prac. Reg. 225, Wy. Ed. 17 [Livingston v. Huhhs, 3 3. C.R. 124; 
 
 Ves. 178. Respass v.- M'Clenahan, 2 Marsh. 
 
 (m) 2 Atk. 534; Houghton v. 578; Winston v. Executor of John- 
 West, 2 Bro. P. C. 88, Toml. Ed. son, 2 Muiif. .305.] 
 
 (n) 2 Ves. 576 ; 3 P. Wms. 372 ; (s) Lord Portsmouth v. Lord Ef- 
 
 Nele. Rep. 52. fivgham, 1 Ves. 430; Bennetv. Lee, 
 
 (o) Tothill, 42; 2 Alk 534; 17 2 Atk. 529 ; and see Willanv.Wil- 
 
 Ves. 177. [See cases, note (1.)] Ian, 16 Ves. 86. 
 
 (/>) See O'Brien v. O'Connor, 2 (t) Lord Portsmouth v. Lord Ef- 
 
 Ball &. B. 146. Jingham, 1 Ves. 4.30 ; Young v. 
 
 (9) See 1 Ves. 434; Pa<'erso«an(i Keighly, 16 Ves. 348. But leave 
 
 Slaughter, Ambl. 292, and 16 Ves. to file a bill of review is matter of 
 
 350. discretion with the court. See Wil- 
 
 (r) 2 Bro. P. C. 71. Toml. Ed.; son v. Webb, 2 Cox, R. 3. 
 Pract Reg. 95, Wy. Ed. ; Ambl. 293. 
 
 [For the form of a bill of review for error or law apparent in the • 
 
 decree, see Willis. 368.] 
 
 As to bill of review on discovery of new matter, see next page and 
 nolep. 
 
 ( 1 ) [ Wehh V. Pell, 1 Paijre's C. R. 564 ; Edmonson v. Mosehy's heirs, 
 4 J. J. Marshall's R. 500 ; Bleight v. iWllcoy, 4 Monroe's R. 145 ] 
 
 A person who was not a pary to a suit for the construction of a Bill to re-drtor- 
 witl, may file a bill, after a decree enrolled in that suit, to have the ™'Tonemi'<u'on 
 conslruclitin uf the will re-considered and re delermined, without leave alter decree, 
 of the court. Urijuhart v. Uriuharl, 13 Sim. 623. 
 
 (2; [Wiser v. BUchly, 2 J. C. R. 488; Furman v. Coe, on appeal,
 
 102 FRAME AND END OF THE [ClIAP. I. 
 
 Error in matter of form only, though apparent on 
 
 1 C. C. E. 96. New matter, it hns been said, is no ground for a bill 
 of review, unless it was discovered after the decree -was pronounced. 
 • Winston v. Executors of Johnson, 2 Munf. 305; but this is not so, it 
 is sufficient if it did not come to liis knnwled^e till after publication, 
 or when, by the rules of the court, the party could not make use of it. 
 If it came to the know'edge of the party's attorney, solicitor, or agent, 
 before the cause was heard, it is considered as notice to the party. 
 Morris v. Le Neve, 3 Atk. 35 ; and see Standish v. Radley, 2 Aik. 
 199 ; Lord Portsmouth v. Lord Effingham, 1 Ves. sen. 43-1. 
 
 And it has been said, in Kentucky, that the complainant must allege 
 new matter not necessarily in issue upon the original bill. Tilman v. 
 Tilman, 4 J. J. Marshall's R. 119. 
 
 A bill of review will not b^ sustained on the ground that the chan- 
 cellor who made the decree was interested in the stock of the com- 
 plainants, a corporation, if the decree was by consent or merely formal, 
 so that the chancellor did not personally exercise his judgment in it. 
 Nor will it be sustained fiT newly discovered matter of error in the 
 proceedings, which, with ordinary diligence, the party might have dis- 
 covered before. Nor unless the complainant shows himself aggrieved 
 by the decree. Lansing v. Albany Ins. Co., Hopk. 102. 
 
 And additional circumstances, which mi-rely confirm facts proved in 
 the original cau.-e, do not furnish sufficient j^rounds for a bill of review. 
 Randolph's executors v. Randolph''s executor, 1 Hen. &l Munf. 180. 
 Newly discovered evidence, which goes to impeach the character of 
 witnesses examined in the origin il suit, or of cumulative evidence to a 
 litigated fact, is not sufficient. The matter of fact newly discovered 
 must be relevant, and materially aff^^cting the ground of the decree. 
 Livingston v. Hubhs, 3 J. C. R. 1 J4 ] 
 
 Ti e rule as laid down in Ohio is this : If the application for revers- 
 ing the decree be for newly discovered evidence, it should not be of 
 such as was before the court on former hearing or merely cumulative. 
 If a rule should be adopted of rever.-ing a decree merely to let in cu- 
 • mu'ative evidence, it is difficult to see where a case could be ended. 
 
 As often as a new witness is discovered, there must then be a review, 
 and nothing short of statute of limitations would put an end to the 
 litigation. The matter must not only be new, but such as the party 
 could not by reasonable diligence have known ; for if there were any 
 negligence or laches in this respect it destroys the title to relief. 
 {Stevens v. Hay >t al, 6 Ohio R. (Griswold's) 317-319, 313; also 
 Kelly V. Stanl»ry. 13 Id. 410-41 1, arg.) 
 
 [.'^nd it has been said, in the chancery of Kentucky, that a bill of 
 review will not be granted upon a fact which was formerly in issue in
 
 evi- 
 dence of matter 
 
 S. III.] SEVERAL KINDS OF BILLS. 102 
 
 the face of a decree, seems not to have been con- 
 
 siderd as sufficient ground for reversinfr the decree 
 
 (s) ; and matter of abatement has also been treated 103 
 
 ^s not capable of being shown for error to reverse abatei^nt^' ''^ 
 
 a decree(^). 
 
 It has been questioned whether the discovery of npcegg'^^y'th't 
 
 „ . , , • • • ,1 • I • 1 the new matter 
 
 new matter not m issue ui the cause m which a should be 
 decree has been made, could be the ground of a musue. 
 bill of review (ti) ; and whether the new matter on 
 which bills of review have been founded has not 
 always been new matter to be used as evidence to 
 prove matter in issue, in some manner, in the origi- 
 nal bill (x). A case, indeed, can rarely happen in 
 which new matter discovered would not be, in some 
 degree, evidence of matter in issue in the original 
 cause, if the pleadings were properly framed. 
 Thus, if after a decree, founded on a revocable 
 deed, a deed of revocation and new limitation were 
 discovered ; as it would be a necessary allegation 
 of title under the revocable deed that it had not [8^] 
 been revoked, the question of revocation would 
 
 (s) Jones V. Kenrick, 5 Bro. P. C. (/) Slingsby v.Hale, 1 Ca.inCha. 
 
 244, Toml.Ed.; but the cause was 122; S. C. 1 Eq. Ca. Ab. 164. 
 
 compromised. Hartwell v. Town- («) See 16 Vee. 354. 
 
 send, 2 Bro. P. C. 107, Toml. Ed. (x) Ambl. 293. 
 
 the same cause or evidence newly discovered, unless the evidence be 
 in writing or of record. Head v. Had's administrator, 3 A. K. Mar- 
 shall's K. 121. Also, that where, upon a bill of review, the decree is 
 reviewed or impeached, the defendants, provided the decree was ob- 
 tained by default, should be prrmitted to file answers or to plead, so 
 that the matter of the original bill may be litigated between the parties. 
 Maypsbick v. Founlleroi/, 3 J. J. Marshall's R. 536.] 
 
 If the facts in petition for the bill, verified by oath, l;iy a sufficient 
 foundation for the bill, the court will not inquire if he can prove the 
 fact?. The merits cannot be tried on the petition. (Quick v. Lilly, 2 
 Green C. R. 258, 255.) 
 
 11
 
 103 FRAME AND END OF THE [ChAP. I. 
 
 have been in issue in the original cause, if the 
 pleadings had been properly framed. So if after 
 a decree founded on a supposed title of a person 
 claiming as heir, a settlement or will were discovered 
 which destroyed or qualified that title, it would be 
 a necessary allegation of the title, of the person 
 claiming as heir, that the ancestor died seised in 
 fee-simple, and intestate. But if a case were to 
 arise in which the new matter discovered could not 
 ^n.A be evidence of any matter in issue in the original 
 
 cause, and yet clearly demonstrated error in the 
 decree, it should seem that it might be used as 
 ground for a bill of review, if relief could not other- 
 wise be obtained {x) (1). It is scarcely possible, 
 however, that such a case should arise which might 
 not be deemed in some degree a case of fraud, and 
 the decree impeachable on that ground. In the 
 case where the doubt before mentioned appears to 
 have been stated, the new matter discovered, and 
 alleged as ground for a bill of review, was a pur- 
 chase for valuable consideration, without notice of 
 the plaintiff's title ; this could only be used as a 
 
 {x) This court refused its leave to Ord v. Noel, 6 Madd. 127, and Bing- 
 
 file a bill of review, where it would ham v. Dawson, IJac.R. 243, which, 
 
 have been the means of introducing although cases relating to supplemen- 
 
 an entirely new case, of the matter tal bills in the nature of bills of re- 
 
 of which the plaintiff was sufficiently view, illustrate this principle. See 
 
 well apprized to have been able, with also Ludlow v. Lord Macartney, 2 
 
 the exertion of reasonable diligence, Bro. C. C. 67, Tornl. Ed.; Le Neve 
 
 to have brought the same at first v. Norris, 2 Bro. P. C. 73, Toml. Ed. ; 
 
 completely belore the court. Young McNeill v. Cahill, 2 Bligh, P. C. 228. 
 v. Keighly, 16 Ves. 348. And see 
 
 (1) See Partridge v. Osborne, note to page 108, infra., and note, p. 
 102, supra.
 
 S. III.] SEVERAL KINDS OF BILLS. 104 
 
 defence ; and it seems to have been thought that 
 ahhough it might have been proper, under the 
 circumstances, if the new matter had been dis- 
 covered before the decree, to have allowed the de- 
 fendant to amend his answer and put it in issue, 
 yet it could not be made the subject of a bill of re- 
 view : because it created no title paramount to the 
 title of the plaintiff, but merely a ground to induce a 
 courtof equity not to interfere. And where a settle- 1^^ 
 
 ment had been made on a marriage in pursuance 
 of articles, and the settlement following the words 
 of the articles had made the husband tenant for 
 life, with remainder to the heirs -male of his body, 
 and the husband claiming as tenant in tail under 
 the settlement had levied a fine, and devised to 
 trustees, principally for the benefit of his son, and 
 the trustees had obtained a decree to carry the trusts 
 of the will into execution against the son, the son 
 afterwards, on discovery of the articles, brought a 
 bill to have the settlement rectified accordrng- to 
 the articles, and a decree was made accordingly. 
 
 In this case the new matter does not appear to 
 have been evidence of matter in issue in the first 
 cause, but created a title adverse to that on which 
 the first decree was mad 0(2/). 
 
 A bill of review upon new matter discovered has [88] 
 been permitted even after an aflfirmance of the de- ^lllrm 
 cree in parliament (z) ; but it may be doubted parurme'^nt' 
 whether a bill of review upon error in the decree 
 
 (y) Robertsv. KingdyjlVea.^SS. directed as to the fact of the dis- 
 
 If this case is accurately reported, covery of the articles. See Young 
 
 the bill seems to have been filed with- v. Keighly, 16 Ves. 348. 
 
 out the previous leave of the court; (z) Barlion v. Searle, 1 Vern. 416; 
 
 and on the hearing an inquiry was and see 16 Ves. 89. 
 
 Bill ior review 
 rmance 
 of the decree in
 
 105 FRAME AND END OF THE [ChAP. L 
 
 itself can be brought after affirmance in parliament 
 Second bill of (a). If uDon a bill of review a decree has been 
 
 review. v y r 
 
 reversed, another bill of review may be brought 
 Bin of review upon tho decrco of reversal (b) (1). But when 
 
 must he brought * -^ ^ . 
 
 "^cnrs" ^'"^''^ twenty years have elapsed (2) from the time or 
 
 106 pronouncing a decree, which has been signed and 
 enrolled, (3) a bill of review cannot be brought (c) ; 
 
 (a) 1 Vern. 418. 1 Bro. P. C. 453, Toml. Ed. ; Ed- 
 
 {!)) 2 Chan. Pract. 633 ; and see wards v. Carroll, 2 Bro. P. C. 98,. 
 
 Ncal V. Robinson, Dick. 15 ; but see Toml. Ed. ; Lytton v. Lytton,4 Bro. 
 
 1 Vera. 417. C. C. 441. [See Thomas v.Harvie, 
 
 (c) Sherrington v. Smith, 2 Bro. 10 Wheat. 106.] 
 
 P, C. 62, Toml. Ed. ; Smythe v. Clay, 
 
 (1) From an examination of authorities to ascertain the usages of 
 courts of equity, which by" statute in Ohio were to guide the court in 
 their mode of proceeding, the following rule was deduced : When a 
 demurrer to a bill of review has been sustained or allowed — in other 
 words, where according to our practice the bill has been dismissed' 
 and the original decree thereby atfirmed — no subsequent bill of review- 
 will lie ; but where the original decree has been reversed, this decree 
 of reversal may be reviewed. The rule is based on sound reason. 
 Where tliere have been two concurrent decrees, as in the case of the 
 demurrer allowed, it is time that the litigation should be ended ; but 
 where the original decree has been reversed, there the matter of equity 
 may still be considered as doubtful. SiraJer v. Heirs of Byrd el al.y 
 7 Ohio R. 331, 330, (condensed from 7 Hammond R. 184.) 
 
 (2) Twenty years is the English rule, and here five, in analogy to- 
 the time of bringing writs of error for matters apparent. Story Eq. 
 PI. 5 410. [Although bills of review are not strictly within the statutes 
 of limitation, yet a court of equity, in analogy to the provisions of 
 the judiciary act concerning appeals, will not allow a bill of review to 
 be filed after five years. Thomas v. Hircie, 10 Wheat. 146. Yet see 
 Edwards v. Carroll, 5 B. P. C. 466 ; 6 B. C. C. 395 ; SmUh v. Clay, 
 Ambl. 645, but more full, 3 B. C. C. 639. And, ^uer^— whether a bill 
 of review on the ground of newly discovered evidence, will be governed 
 by such limitation ? In such case it would seem to be discretionary 
 with the court. lb.] 
 
 When the saving clause of statute of limitations gives right to re- 
 view decree to one of the parties, and the right is entire, the rijht of 
 reversal enures to benefit of all. (Massie^s heirs v. Matthew's executors 
 and Wallace, 12 Ohio R. 353, 351.) 
 
 (3) It is said, enrolments in England are but little known or prac-
 
 ^. III.] SEVERAL KINDS OF BILLS. 106 
 
 and after a demurrer to a bill of review has been 
 allowed, a new bill of review on the same ground 
 cannot be brought (d). It is a rule of the court, n"tTrevent''the 
 
 f ■. f . . I'll /» • 111 executon of the 
 
 that the brmgmg a bill or review shall not prevent former decree. 
 the execution of the decree impeached ; and if 
 money is directed to be paid, it ought regularly to 
 be paid before the bill of review is filed, though it 
 may afterwards be ordered to be refunded (e) (1). 
 
 (d) Dunnyv. Filmore, I Vern. 135. 
 
 (e) Ord. in Cha. Ed. Bea. 3; 2 Brown P. C. 65, Toml. Ed. note. 
 
 ticed, and therefore bills of review rarely brought. But in America 
 decrees are matters of record and deemed enrolled as of tlie preceding 
 term so as such bill here is the proper and ordinary proceeding. (Story 
 Eq. PI. !j 403.) 
 
 An criginil decree is to be deemed recorded and enrolled, by the 
 practice of the United States courts in chancery, as if the term in 
 which the final decree was passed. A bill exhibi ied' afterwards to 
 revise errors for want of parties, or want of proper proceedings after 
 the decree against his heirs, after death of a party, is a bill of review 
 in contradistinction to a bill in the nature of a bill of review ; which 
 lies only where there has been no enrolment of the decree, the former 
 being by the original parties and their privies in representation is also 
 properly a bill of review in contradistinction to an original bill in the 
 nature of a bill of review which brings forward the interests affected 
 by the decree, other than those founded in privity of representation. 
 {Whiting et al. v. The Bank of the Uniled Slates, 13 Peters, 13, 6.) 
 
 CI) By the third and fourth of Lord Bacon's orders, "No bill of Pre-requieito of 
 
 .„,,•, , . •„ I filin?nbillofre- 
 
 review shall be admitted, or any other new bill to cliange matter view, or a bill of 
 decreed, except the decree be first obeyed and performed." The true * *'''*'^'"®- 
 interpretation of these words is this — that before a party can file a bill 
 of review, or a bill of the nature of a bill of review, even by leave, he 
 must perforin so much of the decree as he is bound to perform at that 
 time. But he may file a bill of review, or a bill of the nature of a bill 
 of review at any time after leave is obtained, even before he has per- 
 formed the decree, as regards those things which by the decree he 
 was not bound to perform till a period subsequent to the time when 
 such leave is obtained. Partridge v. Usborne, 5 Russ. 195. 
 
 [See Wiser v. Blachhj, 2 J. C. R. 488. Nothing will excuse the 
 .party from paying the money and costs, but evidence of his inability 
 <to perform it. There is wisdom in the establishment of such a pro-
 
 106 FRAME AND END OF THE [ClIAP. I^^ 
 
 Frame thereof. In a bill of tliis naturc it is necessary to state (/*) 
 
 the former bill, and the proceedings thereon ; the 
 
 decree, and the point in which the party exhibiting 
 
 the bill of review conceives himself aggrieved by 
 
 [89] it (g) ; and the ground of law, or new matter dis- 
 
 1^7 covered, upon which he seeks to impeach it ; and if 
 
 the decree is impeached on the latter ground, it 
 seems necessary to state in the bill the leave ob- 
 tained to file it (h), and the fact of the discovery (i). 
 It has been doubted whether after leave given to 
 file the bill, that fact is traversable; but this doubt 
 may be questioned if the defendant to the bill of 
 review can offer evidence that the matter alleged 
 in the bill of review was within the knowledge of 
 the party who might have taken the benefit of it in 
 the original cause {k). The bill may pray simply 
 
 (f ) 2 Prax. Aim. Cur. Cau. 520 ; upon a supplemental bill in nature of 
 2 Chan. Prac. 629. a bill of review, the court seemed to 
 
 (g) 4 Vin. Ab. 414, PI. 5. be of opinion that the fact of the 
 (A) See 1 Vern. 292; Boh. Curs, discovery was traversable; and not 
 
 Ganc. 396, 397. being admitted by the defendant, 
 
 (i) Hanhury v. Stevens, Trin. ought to have been proved by the 
 
 1784, in Chancery. plaintiff to entitle him to proceed to 
 
 (k) In the above mentioned case the hearing of the cause. 
 
 of Hanbury and Stevens, which was 
 
 vision and it ought to be duly enforced. Its object Is to prevent abuse 
 in the administration of justice, by filing bills of reviews for delay and 
 vexation, or otherwise protracting the litigation to the discouraoement 
 and distress of the adverse party. lb. , Livingston v. Hubbs, 3 J- C. R. 
 124. It has been said, in North Carolina, that placing the amount of 
 a decree in the hands of tiie master, in bank notes, is such a substan- 
 tial compliance with the order of the court as will save the party from 
 an imputed neglect or contempt, and authorize the filing ot a bill of 
 review. Taylor v. Person, 2 Hawks' R. 293.] 
 
 [As to deposit on filing a bill of review, see Wehh v. Pell^ 1 Paige's 
 C. R. 564; and 173, Rule of N. Y. Chancery. 
 
 As to the practice in Virginia upon a bill of review, see note to 
 Ellzley V. Lane's executors, 2 Hen. & Munf. 589 ; Quarrier v. Carter^ s 
 representatiies, 4 Hen. &- Munf. 242.]
 
 S. III.] SEVERAL KINDS OF BILLS. 107 
 
 that the decree may be reviewed, and reversed in 
 the point complained of, if it has not been carried 
 into execution (Z). If it has been carried into execu- 
 tion, the bill may also pray the further decree of the 
 court, to put the party complaining of the former 
 decree into the situation in which he would have 
 been if that decree had not been executed. If the 
 bill is brought to review the reversal of a former 
 decree, it may pray that the original decree may 
 stand (m). The bill may also, if the original suit 
 has become abated, be at the same time a bill of 
 revivor (n) (1). A supplemental bill may likewise 
 be added if any event has happened which requires mQ-i 
 it (o)(2); and particularly if any person not a party 108 
 
 to the original suit becomes interested in the sub- 
 ject, he must be made a party to the bill of review 
 by way of supplement (p). 
 
 To render a bill of review necessary the decree Supplemental 
 
 •' bill in the nature 
 
 sought to be impeached must have been signed and "Lw!"" "^ ^^' 
 enrolled. If, therefore, this has not been done, a 
 decree may be examined and reversed upon a spe- 
 cies of supplemental bill, in the nature of a bill of 
 review where any new matter has been discovered 
 
 (l) 17 Ves. 177. (p) Sands -v. Thorowgood, Hardr. 
 
 (m) 2 Chan. Prac. 634. 104. See supra, p. 106, note, and 
 
 (n) 2 Prax. Aim. Cur. Cane. 522. 101, note. 
 
 (0) Price v. Keyte, 1 Vern. 135. 
 
 (1) Such a bill must be founded upon an affidavit of tlie discovery 
 of new matter, and cannot be filed witliout the special leave of the 
 court. Neither can it be filed wittioiit maldiig the deposit, or giving 
 the security required upon a bill of review. Wilkinson v. Parish, 3 
 Paige's C. R. 653.] 
 
 (2) Thus the bill may partake of the compound character of a bill 
 of review, of revivor and of supplement ; and be maintainable if it 
 present facts that go to the merits of the original decree. Wliiting et 
 al. V. The Bank of the United Stales, 13 Peters, 13, 6.
 
 108 
 
 FRAME AND END OF THE [ChAP. I. 
 
 109 
 
 [91] 
 
 since the decree {q) (1) . As a decree not signed and 
 enrolled may be altered upon arehearing without the 
 assistance of a bill of review, if there is sufficient mat- 
 ter to reverse it appearing upon the former proceed- 
 ings (r) (2) the investigation of the decree must be 
 
 {q) 2 Atk. 40, 178; 3 Atk. 811; 
 Gartside v. Isherwood, Dick. 612 ; 
 17 Ves- 177; or, at the least, the 
 new matter should have been discov- 
 ered after the time when it could 
 liave been introduced into the original 
 cause. Ord v. JSoel, 6 Madd. 127 ; 
 
 and see Barrington v. O'Brien, 2 
 Ball & B. 140. See p. 106, note, 
 supra ; [ Wiser v. Blackly, 2 J. C. R. 
 488 ; Lawrence v. Cornell, 4 J. C. R. 
 542.] 
 
 (r) The rehearing, which is thus 
 far alluded to, not being sought in 
 
 Supplemental 
 bill in the nature 
 of a bill of re- 
 Tiew, and to 
 bring forward 
 new matter. 
 
 Petition of re- 
 hearing dis- 
 missed became 
 grounded oa 
 Hew facta. 
 
 (1) A plaintiff, or a defendant against whom a decree is made, may 
 obtain leave to file a supplemental bill in the nature of a bill of review, 
 to bring forward matter discovered after such decree, although such 
 matter is not capable of being used as evidence of anything previously 
 put in issue, but constitutes an entirely new issue. Partridge v. Us- 
 borne, 5 Russ. 195 ; Barnes v. Ojfer, 6 Russ. 225, note.) Thus, where 
 a person who is afterwards decreed to perform a contract for the pur- 
 chase of a timber estate, applies to the auctioneer for, atjd obtains a 
 written statement of the quantity of timber by a surveyor, before he 
 bids for the estate ; and after being decreed to perform his contract, 
 he discovers that the quantity of timber is much less than is repre- 
 sented in such statement ; the court will give him leave to file a sup- 
 plemental bill in the nature of a bill of review, and to apply to have 
 the original cause set down to be reheard, and to come on at the same 
 time, although his answer to the original bill does not raise any objec- 
 tion as to the quantity of timber. Partridge v. Usborne, 5 Russ. 195. 
 In this case, the purchaser adduced evidence of the auctioneer and 
 others to show that the auctioneer warranted the quantity of timber, 
 and stated that the admeasurement exhibited by him to the purchaser 
 agreed, with another admeasurement by another eminent surveyor, 
 although in reality the two materially differed. But the fact of the 
 warranty was controverted by the evidence of a greater number of 
 persons: and neither that fact nor the other circumstance above men- 
 tioned were adverted to in the judgment of the lord chancellor, Lord 
 Lyndhurst. 
 
 (2) Where in a suit for the administration of a testator's personal 
 estate, part of which is undisposed of, the bill sets forth the will of the 
 testator, made some years before his death, in which he is described as 
 of a certain colony, where the effects of intestates are not distributed
 
 S. III.] SEVERAL KL\DS OF BILLS. 
 
 110 
 
 brought on by a petition of re-hearing (s) (2) : and 
 
 respect of any new matter, is ob- 
 tained upon certificate of counsel, 18 
 Ves. '323, by a petition merely, which 
 states the case as brought before the 
 court when the decree was made, 
 Wood V. Griffiths, 1 Meriv. 35 ; and 
 the grounds on which the re-hearing 
 is prayed, 1 Sch. & Lefr. 398. And 
 here it may not be improper to notice, 
 that the court will not, without con- 
 cent, 3 Swanst. 234, vary a decree 
 after it has been passed and entered, 
 «xcept as to mere clerical errors, Lane 
 V. Hobbs, 12 Ves. 458, Weston v. Hag- 
 gersion, Coop. R. 134; Hawker v. 
 Buncombe, 2 Madd. R. 391 ; 3 
 Swanst. 234 ; Tomlins v. Palk, 1 
 Russ. R. 475 ; or, matters of course, 7 
 Ves. 293 ; Pickard v. Mattheson, 7 
 Ves. 293 ; Newhouse v. Mitford, 12 
 Ves. 456, unless upon a petition of re- 
 hearing, or upon a bill of review, or 
 
 bill in the nature of a bill of review, 4 
 Madd. 32 ; Grey v. Dickenson, 4 
 Madd. 464 ; Brackenbury v. Brack, 
 enhury, 2 Jac. &, W. 391 ; Willis v. 
 Parkinson, 3 Swanst. 233; Brookjield 
 v. Bradley, 2 Sim. & Stu. 64, accord- 
 ing as the decree has or has not been 
 signed and enrolled ; and as it is sought 
 to have the case re-heard as originally 
 brought before the court, or accompa- 
 nied with new matter. See Text. 
 
 (s) Taylor v. Sharpe, 3 P. Wms- 
 371 ; 2 Ves. 598 ; Gore v. Pardon, 
 1 Sch. & Lefr. 234 ; 2 Jac. & W. 
 393. It must be remarked that 
 where there is new matter, a petition 
 to re-hear the original cause must be 
 presented, and be brought before the 
 court at the same time as the supple- 
 mental bill, in the nature of a bill of 
 review. Moore v. Moore, Dick. 66 ; 
 17 Ves. 178. 
 
 according to the English statute of distributions; but the bi'l prays 
 that the property undisposed of may be distributed according to that 
 statute ; and there is no allegation that the testator was domiciled in 
 the colony, or that the law of England is not applicable to the distri- 
 bution of his property, either in the bill, or in the answers, or in the 
 master's report, or in the evidence, or at the hearing ; and the property 
 is orderi'd to be distributed according to the statute ; but afterwards a 
 petition for a re-hearing is presented, in which those facts are alleged 
 as a ground for a re-hearing ; such petition will be dismissed. Neiin- 
 son v. Slables, 4 Russ. 210. 
 
 (2) [A petition of rehearing will be dismissed, if it suggests, as the 
 ground of ro-hearing, facts not alleged in the pleadings. Neiinson v. 
 Stables, A Russ. 210. See 112, 113, 114, and 115, Rules of N. Y. 
 Chanrery. A re-hearing is not a matter of course, except in the cases 
 provided for by rule. Travis v. Waters, 1 J. C. R. 48 ; Eastbiirn v. 
 fKirk, 2 lb. 317; Land v. Wickham, 1 Paige's C. R. 256; Wiser v. 
 Blachly,' supra. Where a decree has been entered by consent, there 
 can be no re-hearing. Monell v. Lawrence, 12 J. R. 521. Nor will it 
 be granted after a decree to account, exceptions to a master's report 
 taken and disallowed, acquiescence of the party therein, and a final 
 report made up and confirmed. Ridg. Lap. & Scho. 602.] 
 
 See form of such a petition, 2 Harr. Chan. (ed. 1790) 32. The peti-
 
 110 FRAME AND END OF THE [ChAP. L 
 
 the office of the supplemental bill in'nature of abill of 
 review, is to supply the defect which occasioned the 
 decree upon the former bill (t) (1). It is necessary to 
 
 (0 Standish v. Radley, 2 Atk. 177. 
 
 tion, it seems, should be presented previously to filing the supplemen- 
 tal bill. 
 
 Rehearings rest in sound discretion of the court, not of right. Ap- 
 plication for rehearing on ground of newly discovered evidence is 
 mainly govorned by some considerations as apply vi^here leave is asked 
 to file supplemental bill after publication of proofs and before hearing, 
 in order to bring up newly discovered evidence ; or where leave is asked 
 after decree to file bill of review, or bill in the nature of a bill of review, 
 on ground of newly discovered evidence. {Daniel v. Mitchell, 1 Story's 
 R. 200, 198.) 
 
 Rehearings have been exceedingly rare in the circuit courts of the 
 United States ; and ought to be, unless some plain, obvious, palpable 
 error, omission or mistake in something material to the decree is brought 
 to the notice of the court, which had before escaped its attention. 
 The Supreme Court of the United States habitually refused rehearings 
 after it has pronounced its judgment. The English practice has 
 guards that do not exist here, where counsel and client are brought 
 into immediate and constant contact. But such as is the practice in 
 England it is the source of almost interminable delays and inconve- 
 niences. When a cause is once fully argued and an appeal lies from 
 the decree, there is ordinarily no reason for a rehearing here on the 
 original evidence. The application to be maintainable the petition 
 should pray leave to file supplemental bill, to bring forward new evi- 
 dence and for a rehearing of the cause at the time when the supple- 
 mental bill should also be ready for a hearing. 
 
 To bring forward new evidence unless it be an exhibit or some doc- 
 umentary proof omitted by slip, to be read or proved on final hearing, 
 must be by supplemental bill. The new evidence to found such bill 
 should be such, as, if unanswered, would require a reversal of the 
 decree. New oral testimony to corroborate evidence on one side or 
 contradict it on the other on points in issue, is insufficient ; and if the 
 evidence was such as the party might by due diligence have originally 
 introduced, or where he had full means of knowledge in his reach, the 
 bill will not be admitted after an interlocutory decree. Jenkins v. 
 
 Eldredge, 3 Story's R. 304-7, 310, 311, 314, et seq. 299. 
 
 (1) [See the form of such a bill, Willis, 376. Such a bill cannot 
 
 be filed, where a party could have filed an ordinary supplemental bill, 
 
 but waits doing so until after a decree. Pendleton v. Fay, 3 Paige's 
 
 C. R. 204.]
 
 S. III.] SEVERAL KINDS OF BILLS. 110 
 
 obtain the leave of the court to bring a supplemental 
 bill of this nature (ti), and the same affidavit is re- 
 quired for this purpose as is necessary to obtain 
 leave to bring a bill of review on discovery of new 
 matter (x) (1). The bill in its frame nearly resembles 
 
 (m) Order, 17 Oct. 1741, Ord. in adopted by tlie court in relation to 
 
 Cha. Ed. Bea. 366 ; 2 Atk. 1.39, note ; bills of tliis kind, see Ord v. Noel, 6 
 
 3Atk.811; 2Ves. 597, 598; Bridge Madd. 127; Bingham v. Dawson, 1 
 
 V. Johnson, 17 Dec. 1737. Jac. R. 243; Wilkinson v. Parish, 
 
 {x) As to the general principles 3 Paige R. 653. 
 
 (I) Where a decree is made against executors, not charging them 
 with what they might have received, but for their wilful default, but 
 afterwards a bill is filed^ which seeks so to charge them, it is a sup- 
 plemental bill in the nature of a bill of review, and must not be 
 filed without the leave of the court. Hudson v. Ball, 11 Sim. '456; 1 
 Phil. 177. 
 
 And where a vendor contracts to sell leasehold premises for the re- 
 mainder of a term granted by a certain lessor, and the specific per- 
 formance of the contract is decreed, the purchaser may not, without 
 the leave of the court, file a supplemental bill, slating the fact that the 
 premises called by the name by which they are designated in the con- 
 tract partly consist of premises comprised in a lease granted by another 
 lessor, and praying a declaration that tiie premises comprised in both 
 leases are comprised in the contract, and that the contract may be spe- 
 cifically performed accordingly. For where a supplemental bill is 
 brought to supply a defect in the pleadings and decree in the original 
 cause, and the decree upon it can only be obtained on a rehearing of 
 the decree in the original cause; such bill is a supplemental bill in 
 the nature of a bill of review, which ought not to be filed without the 
 leave of the court. Davis v. Black, 6 Beav. 393. 
 
 Where a supplemental bill seeks a species of relief which may be 
 inconsistent with the relief afforded by the decree in the original suit, 
 though it be only in one respect, and that in re;:ard to the transactions 
 of a few days, the bill is irregular, if filed without leave of the court ; 
 and the defendants are not precluded from insisting on the irregular- 
 ity, by having answered the bill ; because, although the defendants 
 should waive the objection arising from the want of leave to file the 
 bill, yet the court itself would be concerned to prevent inconsistent 
 decrees from being made. Such an irregularity may, however, be 
 corrected by a stay of the proceedings, without prejudice to the plain- 
 tiff's right to file anew bill, or to apply for leave of the court to file a 
 bill of review.
 
 ture of a bill of 
 review 
 
 HI FRAME AND END OF THE [CuAP. I. 
 
 a bill of review, except that instead of praying that 
 the former decree maybe reviewed and reversed, it 
 prays that the cause may be heard with respect to 
 the new matter made the subject of the supple- 
 mental bill, at the same time that it is re-heard upon 
 
 112 the original bill, and that the plaintiff may have such 
 
 [92] relief as the nature of the case made by the supple- 
 mental bill requires (y). 
 
 3. Bills in the na. g jf j^ dccrcc is made ao^ainst a person who had 
 
 ture of a bill of n , r 
 
 no interest at all in the matter in dispute, or had not 
 such an interest as was sufficient to render the de- 
 cree against him binding upon some person claiming 
 the same or a similar interest (z), relief may be ob- 
 tained against error in the decree by a bill in the 
 nature of a bill of review (a) (1). Thus, if a decree 
 is made against a tenant for life only, a remainder- 
 man in tail or in fee cannot defeat the proceedings 
 against the tenant for life, but by a bill showing the 
 error in the decree, the incompetency in the tenant 
 for life to sustain the suit, and the accruer of his 
 
 (y) See 17 Ves. 177, 178. See (z) Brown v. Vermuden, 1 Ca. in 
 note, p. 110, supra. Cha. 272. 
 
 (a) See 17 Ves. 178. 
 
 This point arose in a case where the plaintiffs would have been en- 
 titled, in the original suit, to interest on the amount due to the estate 
 of a deceased partner whom they represented ; but by a supplemental 
 bill they sought for a declaration that they were entitled, at their optimi, 
 either to participate in the profits made by the defendant, the surviving 
 partner after the death of the deceased partner, or to be allowed interest 
 upon the balance due to the deceased partner's estate. Toulmin v. 
 Copland, 4 Hare, 41. 
 
 (1) See form of bill. [Willis, 378.] 
 
 It lies only after final decree, not where the subject is still before the 
 court in Jieri upon master's report in pursuance, and of an interlocutory- 
 decree. (Jenkins v. Eldridge, 3 Story's R. 302, i.99. See p. 106, 
 note, supra.)
 
 S. III.] SEVERAL KINDS OF BILLS. 112 
 
 own interest, and thereupon praying that the pro- 
 ceedings in the original cause maybe reviewed, and 
 for that purpose that the other party may appear 
 to and answer this new bill, and the rights of the 
 parties may be properly ascertained (1). A bill of 
 this nature, as it does not seek to alter a decree 
 made against the plaintiff himself, or against any 
 person under whom he claims, may be filed without 
 the leave of the court (b) (2). 
 
 4. If a decree has been obtained by fraud it may ^ Biiis to im. 
 
 J J peach decreea 
 
 be impeached by original bill (c) without the leave *'"'*'^*'"^:^-.rt 
 of the court (d)\ the fraud used in obtaining the de- mg-j 
 cree being the principal point in issue, and neces- 
 sary to be established by proof before the propriety 
 of the decree can be investigated. (3). And where 
 
 (b) Osborne v. Usher, 6 Bro. P.C. 4 Tb. 97.] In 3 P. Wms. 1 Jl, it is 
 20, Tom!. Ed. said that a decree in such case may 
 
 (c) 1 p. Williams, 7.3G; Loyd v. be set aside on petition ; but this was 
 Mansell, 2 P. Wms. 7.3 ; 3 P. Wma. prob.ibly meant to extend only to the 
 111 ; Wichalse v. Short,3 Bro P. C. case of a decree not signed and eri- 
 558,Toml. Ed. ; and see Kcmiecli/ v. rolled, and wliere the fact of fraud 
 Daly, 1 Sch. & Lefr. 355; and could not be controverled. See Mus- 
 Giffurd V. Hort, 1 Sch. &. Lefr. 3S6. sel v. Morgan, 3 Bro. C. C. 74 ; 2 
 [Davoue v. Fanning, 4 J. C. R. 199 ; Sch. & Lefr. 574. 
 
 Murray v. Murray, 5 lb. 60; Wil- (d) 3 Alk. 811 ; 1 Ves. 120; Ca. 
 Hams V. Fowler, 2 J. J. Marshall's Temp. Talbot, 201. 
 R. 405 ; Edmonson v. Mosly's heirs, 
 
 (1) [And it would seem, where a bill by a vendor of land, seeking a 
 specific performance of the contract, is dismissed on account of a de- 
 fect in the title, and he can afterwards make title, that he may come 
 in again by an original bill in the nature of a bill of review. Hepburn 
 V. Dunlop, 1 Wheat. 179, 195.] 
 
 (2) In Quick V. Lilly, ^ Gnen'sC. R. Ncw-Jereey, 257-8, 255, it was 
 held on a petition for leave to file such bill, that to justify it, on gronnd 
 of newly discovered matter, the evidence discovered must be new, and 
 material. The new matter must be such as, if unanswered in point 
 of fact, would clearly entitle party to a decree, or raise a case of so 
 much nicety and difficulty as to be a fit subject of judgment in a cause. 
 
 (3) See form of bill, [Willis, 381.] 
 
 The bill to impeach or sut aside judgment or decree for fraud, must
 
 113 FRAME AND END OF THE [ChAP. I. 
 
 a decree has been so obtained the court will restore 
 the parties to their former situation, whatever 
 their rights may be {e). Beside cases of direct 
 fraud in obtaining a decree, it seems to have been 
 considered, that where a decree has been made 
 against a trustee, the cestui que trust not being be- 
 fore the court, and the trust not discovered, or 
 against a person who has made some conveyance 
 or encumbrance not discovered, or where a decree 
 has been made in favor of or against an heir, 
 when the ancestor has in fact disposed by will of 
 the subject-matter of the suit, the concealment of 
 the trust, or subsequent conveyance, or encum- 
 brance, or will, in these several cases, ought to be 
 treated as a fraud (f). It has been also said that 
 
 114 where an improper deCree has been made against 
 an infant, without actual fraud, it ought to be irn- 
 
 [94] peached by original bill (g)(1). When a decree 
 
 (e) Birne v. Hartpole, 5 Bro. P. C. other it will be vacated. Stevens v. 
 
 197, Toml. Ed. ; and see Powell v. Guppy, 1 Turn. R. 178. 
 Martin, 1 Jac. & W. 292. And it (/) See Style v. Martin, 1 Ca. 
 
 may be remarked, that where the Cha. 150; Earle of Carlisle v. Goble, 
 
 enrolment of the decree by the one 3 Cha. Rep. 94. 
 party is a fraud or surprise upon the (g) I P. Wras. 737 ; 2 Ves. 232. 
 
 set forth precisely the particular circumstances of fraud. (Pendleton 
 V. Galloivay et al. 9 Ohio R. 178.) 
 
 In a suit in Ohio, on a judgment in Virginia, and upon plea that it was 
 obtained by fraud, it was held that it could only be directly impeached 
 in chancery. The general doctrine of the books is that fraud avoids 
 all judicial acts. But even as to foreign judgments the inclination 
 now is to hold them conclusive. {Martin v. Nicolls, 3 Simon R. 458.) 
 A fortiori a judgment of a sister state which has all the force and va- 
 lidity of a domestic judgment cannot be impeached collaterally. (An- 
 derson.v. Anderson, 8 Ohio R. 108, et seq.) 
 
 (1) A fortiori where there was fraud; a decree against minor de- 
 fendants, rendered upon the answer of their guardian ad litem, may 
 be thus impeached and reversed. Massie v. Matthew's executors and 
 Wallace, 12 Ohio R, 351.
 
 S. III.] SEVERAL KINDS OF BILLS. 114 
 
 has been made by consent and the consent has 
 been fraudulently obtained, the party grieved can 
 only be relieved by original bill (h). 
 
 A bill to set aside a decree for fraud must state 
 the decree, and the proceedings which led to it, with 
 the circumstances of fraud on which it is impeached 
 The prayer must necessarily be varied according to 
 the nature of the fraud used, and the extent of its 
 operation in obtaining an improper decision of the 
 court. 
 
 5. The operation of a decree signed and enrolled pcnd^or^avord" 
 has been suspended on special circumstances, or '^''*''"^'''- 
 avoided by matter subsequent to the decree, upon a 
 new bill for that purpose. Thus during the troubles 
 after the death of Charles the First, upon a decree 
 for a foreclosure in case of non-payment of principal, 
 interest and costs due on a mortgage, the mort- 
 gagor at the time of payment being forced to leave 
 the kingdom to avoid the consequences of his en- 
 gagements with the royal party, and having re- 
 quested the mortgagee to sell the estate to the best 
 advantage and pay himself, which the mortgagee 
 appeared to have acquiesced in ; the court, upon a 
 new bill, enlarged the time for performance of the 
 decree, upon the ground of the inevitable necessity 
 which prevented the mortgagor from complying 
 with the strict terms of it, and also made a new 
 decree on the ground of the matter subsequent to 
 the former decree (i). 
 
 (h) Ambl. 229. [And see Monell Whorewood, 1 Ca. in Cha. 250 ; 
 
 V. Lawrence, on appea], 12 Johns. R. Wakelin v. Walthal, 2 Ca. in Cha. 8. 
 
 .521.] The embarrassments occasioned by 
 
 (») Cocker v. Bevis, 1 Ca. in Cha. the civil war in the reign of Charles 
 
 61. See also Vcnahles v. Foyle, 1 I., and the stale of affairs after his 
 
 Ca. in Cha. 3 ; and Whorewood v. deatii, before the restoration of
 
 115 FRAME AND END OF THE [ChAP. L 
 
 [95] 6. Sometimes, from the neglect of parties, or 
 
 ;iii8 t 
 reea 
 ecution. 
 
 6. Bills to carry , . ■. . ., . 
 
 decrees into ex somc otiior cdiise, it Decomes impossible to carry a 
 
 decree into execution without the further decree of 
 the court (k). This happens, generally, in cases 
 where the parties having neglected to proceed upon 
 the decree, their rights under it become so em- 
 barrassed by a variety of subsequent events, that it 
 is necessary to have the decree of the court to settle 
 and ascertain them. Sometimes such a bill is ex- 
 hibited by a person who was not a party, nor claims 
 under any party, to the original decree, but claims 
 in a similar interest, or is unable to obtain the de- 
 termination of his own rights till the decree is car- 
 ried into execution (I). Or it may be brought by or 
 against a person claiming r.s assignee of a party to 
 the decree (m). The court in these cases m gene- 
 ral only enforces, and does not vary, the decree ; 
 but on circumstances it has sometimes considered 
 116 the directions, and varied them in case of a mistake 
 
 [96] (n) (1); and it has even on circumstances refused 
 
 Charles II. occasioned many extra- (k) 2 Chan. Rep. 128 ; 2 Vern. 
 
 ordinary applications to the court of 409. 
 
 chancery for rehef, and perhaps in- (Z) See peculiar case of Rylands 
 
 duced the court to go far in extend- v. Latouche, 2 Bligh, P. C. 566. 
 
 ing rehef ; but there were many cases (m) Organ v. Gardiner, 1 Ca. in 
 
 of extreme hardship in which it was Cha. 231 ; Lord Carteret v. Paschal, 
 
 deemed impossible, consistently with 3 P. Wms. 197; S. C. on appeal, 2 
 
 established principles, to give relief; Bro. P. C. 10, Toml. Ed.; Buiks v^ 
 
 and all cases determined soou after Sinks, rep. 2 Bligh, P. C. 593, note, 
 
 the restoration, upon circumstances (n) See for example Hamilton v. 
 
 connected with the prior disturbed Houghton, 2 Bligh, P. C. 164; and 
 
 state of the country, ought to be con- see Sel. Ca. in Cha. 13. 
 sidered with much caution. 
 
 (1) The general rule is, that the court will not, unless under special 
 circumstances, examine the justice of the decision or the law of the 
 decree ; but, if the case be proper for their interference, will specifically
 
 S. III.] SEVERAL KINDS OF BILLS. 116 
 
 to enforce the decree (o); though in other cases the 
 court, and the House of Lords, upon an appeal, 
 seem to have considered that the law of the decree 
 ought not to be examined on a bill to carry it into 
 execution (p). Such a bill may also be brought to 
 carry into execution the judgment of an inferior 
 court of equity (q), if the jurisdiction of that court 
 is not equal to the purpose ; as in the case of a 
 decree in Wales which the defendant avoided by 
 flying into England (r) : but in this case the court 
 thought itself entitled to examine the justice of the myi ny 
 decision, though affirmed in the House of Lords (s). 
 A bill for this purpose is, generally, partly an 
 original bill, and partly a bill in the nature of an 
 
 (o) Att. Gen. v. Day, 1 Ves. 218 ; made, the bill of foreclosure insisting 
 
 1 Ves. 245 ; Johnson v. Northey, on an encumbrance not noticed in 
 Prec. in Ch. 134; -S. C.2 Vern. 407. the former cause, the latter was on 
 In the last case the lord keeper (1700) hearing ordered to stand over, that 
 seemed to think that a bill by credit- the question might be brought on by 
 ors to carry into execution a decree rehearing of the former cause, or by 
 in favor of their debtor had opened bill of review. 
 
 that decree. In the case of Sir John (p) 2 Ves. 232 ; Smythe v. Clay, 1 
 
 Worden v. Gerard, in Ch. 1718, the Bro. P. C. 453, Toml. Ed. ; see also 
 
 interests of an infant party being Minshull v. Lord Mohun, 2 Vern. 
 
 affected by the decree, the court re- 672, and S. C. on appeal, 6 Bro. P. C. 
 
 fused to carry it into execution upon 32, Toml. Ed. 
 
 a bill for that purpose, and made a (q) 1 Roll. Ab. 373. 
 
 decree according to the rights of the (r) Morgan v. , 1 Atk. 408. 
 
 parties. See Lechmere v. Brasier, The case referred to of a decree in 
 
 2 Jac. & W. 287. But in Shephard Wales seems to have been a case of 
 V. Titley, 2 Atk. 348, on a bill to Halford v. Morgan. 
 
 foreclose a mortgage, after a bill to (s) See Dougleis, 6. 
 redeem, on which a decree had been 
 
 execute the decree. There are cases where the rule has been relaxed 
 and the decree varied, if, upon examining the proofs taken in the 
 cause wherein the decree was made, or tlie directions given, a mistake 
 has been discovered. Este el al. v. Strong el al., 2 Ohio R, 419, 418, 
 condeuBed from 2 Hammond, 401. 
 
 12
 
 117 FRAME AND END OF THE [CnAP. I. 
 
 original bill, though not strictly original (t) ; and 
 sometimes it is likewise a bill of revivor, or a supple- 
 mental bill, or both. The frame of the bill is varied 
 accordingly. 
 
 7. Original bills 7. It has been already mentioned (u), that when 
 
 in the nature ol , . . . , 
 
 bills of revivor. ^^9 mtcrcst of a party dying is transmitted to another 
 in such a manner that the transmission may be liti- 
 gated in this court, as in the case of a devise, the 
 suit cannot be revived by or against the person to 
 whom the interest is so transmitted; but that such 
 person,if he succeeds to the interest of a plaintiff, is 
 entitled to the benefit of the former suit; and if he 
 succeeds to the interest of a defendant, the plaintiff 
 is entitled to the benefit of the former suit against 
 him ; and that this benefit is to be obtained by an ori- 
 ginal bill in nature of a bill of revivor (1). A bill for 
 this purpose must state the original bill, the proceed- 
 in gs upon it, the abatement, and the manner in which 
 the interest of the party dead has been transmitted ; 
 and it must charge the validity of the transmission, 
 and state the rights which have accrued by it. The 
 bill is said to be original merely for want of that 
 privity of title between the party to the former and 
 the party to the latter bill, though claiming the 
 [98] same interest, as would have permitted the con- 
 
 118 tinuance of the suit by a bill of revivor. Therefore, 
 when the validity of the alle£:ed transmission of in- 
 terest is established, the party to the new bill shall 
 
 (0 la case of Pott v. Gallini, a extended upon an original bill. 1 
 decree in a former suit was, iii effect, Sim. & Stu. 206. 
 
 (u) See above, p. 86. 
 
 (1) [See form of such bill, W^illis, 394 ;] and the doctrine and prac- 
 tice in New-York, on abatement and revivor, pp.69 and note, 83, note.
 
 S. III.] SEVERAL KINDS OF BILLS. 118 
 
 be equally bound by or have advantage of the pro- 
 ceedings on the original bill, as it" there had been 
 such a privity between him and the party to the 
 original bill claiming the same interest (x) ; and the 
 suit is considered as pending from the filing of the 
 original bill, so as to save the statute of limitations, 
 to have the advantage of compelling the defendant 
 to answer before an answer can be compelled to a 
 cross-bill, and every other advantage which would 
 have attended the institution of the suit by the ori- 
 ginal bill if it could have been continued by bill of 
 revivor merely (y) . 
 
 8. It has been also mentioned (z), that if the in- biifs'''in'Xe°na! 
 terest of a plaintiff or defendant, suing or defen- ^113.°'°"'^""^ 
 ding in his own right, wholly determines, and the 
 same property becomes vested in another person 
 not claiming under him, the suit cannot be con- 
 tinued by a bill of revivor, and its defects cannot be 
 supplied by a supplemental bill ; but that by an ori- 
 ginal bill in the nature of a supplemental bill the 
 benefit of the former proceedings maybe obtained 
 (a). A bill for this purpose must state the original 
 bill, the proceedh)gs upon it, the event which has 
 determined the interest of the party by Or against 
 whom the former bill was exhibited, and the man- 119 
 
 ner in which the property has vested in the person 
 become entitled. It must then show the ground 
 upon which the court ought to grant the benefit of 
 
 (x) Clare v. Wordell, 2 Vern. 548 ; Stu. 495. 
 1 Eq. Ca. Ab. 83 ; Min>iliull v. Lord (y) Child v. Frederick, 1 P. Wms. 
 
 Mohun, 2 Vern. 672; Mordaunt v. 266. 
 Minshull, 6 Bro. P. C. 32, Toml. Ed.; {z) See above p. 86. 
 Johnson v. Northey, Prec. in Cha. (a) See Hnulditch v. Marquis of 
 
 134; 5. C. 2 Vern. 407; 1 Sim. & Donegall, 1 Sim. &, Stu. 491.
 
 119 FRAME AND END OF THE [CnAP. L 
 
 the former suit to or against the person so become 
 entitled; and pray the decree of the court adapted 
 to the case of the plaintiff in the new bill (b). 
 This bill, though partaking of the nature of a sup- 
 plemental bill, is not an addition to the original bill, 
 but another original bill, which in its consequences 
 may draw to itself the advantage of the proceedings 
 on the former bill (c) (1). 
 Sn?*^""""' IV' Informations (d) in every respect follow the 
 
 120 nature of bills, except in their style. When they 
 concern only the rights of the crown, or of those 
 whose rights the crown takes under its particular 
 protection, they are exhibited in the name of the 
 king's attorney or solicitor-general as the informant; 
 and, as before observed, in the latter case always, 
 
 (b) 6 Bro. P. C. 24, Toml. Ed. 88. [See form of such a bill, Willis^ 
 
 (c) See 9 Ves. 55, above, pp. 87, 396.] 
 
 {d) See above, pp. 21-24. 
 
 (1) Where a defendant dies, after putting in his answer, and devi- 
 sing his estate, which the bill seeks to affect, to persons who are not 
 parties to the bill, the plaintiff may, in another bill against such defen- 
 dant, his devisees and executors, and a surviving party to the first bill, 
 state the allegations contained in the first bill, and may introduce vari- 
 ous passages of the answer, by way of pretence or otherwise, and 
 meet such passages by charges, without rendering the second bill im- 
 pertinent. For, as to the repetition of the statements contained in the 
 first bill, that is necessary in order to enable the fresh parties to under- 
 stand the nature of the case made by the first bill, of the contents of 
 ■which it must be assumed that they are ignorant. And as to tiie in- 
 sertion of passages from the answer and charges to meet them, the 
 plaintiff is entitled to the same advantage against the devisees and 
 executors as if they had been parties to the original bill, in which case 
 he might have amended the original bill by stating the defendant's 
 answer by way of pretence, and inserting charges to meet it. The 
 second bill above mentioned may be termed an original bill in the 
 nature of a supplemental bill, it being original as to the fresh jiarties, 
 but supplemental as regards the former bill. Woods v. Woods, 10 
 Sim. 193.
 
 S. III.] SEVERAL KINDS OF BILLS. 120 
 
 and in the former sometimes, a relator is named, 
 who in reahty sustains and directs the suit. It may 
 happen that this person has an interest in the matter 
 in dispute, and sustains the character of plaintiff as 
 well as of relator ; and in this case the pleading is 
 styled an information and bill. An information 
 concerning the rights of the queen is exhibited also 
 in the name of her attorney-general. The proceed- [100] 
 ings upon an information can only abate by the 
 death or determination of interest, of the defendant. 
 
 If there are several relators, the death of any of 
 them, while there survives one, will not in any de- 
 gree affect the suit; but if all the relators die, or if 
 there is but one, and that relator dies, the court 
 will not permit any further proceeding till an order 
 has been obtained for liberty to insert the name of 
 a new relator, and such name is inserted accor- 
 dingly (e), otherwise there would be no person liable 
 to pay the costs (/) of the suit in case the infor- 
 mation should be deemed improper, or for any other 
 reason should be dismissed. 
 
 The difference in form between an information i^X 
 
 and a bill consists merely in offering the subject 
 matter as the information of the officer in whose 
 name it is exhibited, at the relation of the person 
 who suggests the suit in those cases where a relator 
 is named, and in stating the acts of the defendant 
 to be injurious to the crown, or to those whose rights 
 the crown thus endeavors to protect. When the 
 pleading is at the same time an information and 
 
 (ej Att. Gen. v. Powell, Dick. 355. Sim. &. Stu. 40 ; and see Anon. Sel, 
 
 And the application must be made Ca. in Clia. G9 ; Att. Gen. v. Fellows, 
 
 by the attorney-general, or with liia 1 Jac. & W. 254. 
 
 consent. Att. Gen. v. Plumptree, 5 (/) 1 Ves. 72 ; Att. Gen. v. Mid- 
 
 Madd. 452 ; Wellbeloved v. Jones, 1 dUton, 2 \^. 327.
 
 121 
 
 FRAME AND END OF BILLS. [ChAP. L. 
 
 bill it is a compound of the forms used for each 
 when separately exhibited (g). 
 122 [101] III this investigatioir of the frame and end of the 
 several kinds of bills the matters requisite to the 
 sufficiency of each kind have been generally con- 
 sidered; but they will in some degree be more par- 
 ticularly noticed in the following chapter, in treating 
 of the defence which may be made to the several 
 kinds of bills, and consequently of the advantages 
 which may be taken of their hisufficiency both in 
 form and substance. 
 
 (g) It may here be observed, with 
 resppct to informations on behalf of 
 public charities, that the practice of 
 this court has been to control the 
 governors or other directors of them, 
 in those cases only in which tliey have 
 had the disposition of its revenues ; 
 and that this limited authority has 
 been exerted under its general juris- 
 diction in relation to trusts : although 
 it has gone beyond the ordinary cases 
 on that subject by regulating the ex- 
 ercise of their discretion. 2 Ves. 89 
 2 Ves. 328 ; Att. Gen. v. Foundling 
 Hospital, 2 Ves. Jr. 42 ; S. C. 4 Bro. 
 C. C. 165 ; Att. Gen. v. Dixie, 13 
 Ves. 519 ; Att. Gen. v. Earl of Cla- 
 rendon, 17 Ves. 491 ; 3 Ves. & Bea. 
 154; Att. Gen. v. Brown, 1 Swanst. 
 2G5 ; Att. Gen. v. Mayor of Bristol, 3 
 Madd. 319 ; S.C.2 Jac. & W. 294 ; 
 Foley V. Wontner, 2 Jac. & W. 245 ; 
 Att. Gen. v. Buller, 1 Jac. R. 407 ; 
 Att. Gen. v. Heelis, 2 Sim. & Stu. 
 67 ; Att. Gen. v. Mayor of Stamford, 
 reported 2 Swanst. 591 ; Att. Gen. v. 
 
 Vivian, I Russ. R. 226. It has al- 
 ready been observed in the text, p. 
 19, that this court is empowered by 
 the 52 Geo. III. c. 101, to interfere 
 in such cases as relate only to the 
 plain breach of trusts created for 
 charitable purposes, on what is tech- 
 nically termed a petition in a sum- 
 mary, way. As to which, see also £x 
 parte Berkkampstead School, 2 Ves. 
 & Bea. 134 ; Ex parte Rees, 3 Ves* 
 «& Bea. 10 ; Ex parte Brown, Coop. 
 R. 295 ; Ex parte Skinner, 2 Meriv. 
 453 ; S. C.l Wiis. R. 14 ; Ex parte 
 Greenhouse, 1 Swanst. 60; iS. C. 1 
 Wils. R. 18 ; In re Slewings Charity, 
 3 Meriv. 707 ; Att. Gen. v. Green, 
 1 Jac. & W. 303; In re Bedford 
 Charity, 2 Swanst. 470 ; in the mat- 
 ter of St. Wenn's Charity, 2 Sim. 
 & Stu.. 66^ and see 2 Swanst. 518j 
 525. And it may here be added, 
 that it is also authorized to decide in 
 certain other cases relating to the 
 property of charities, upon a petition, . 
 by the 59 Geo. III. c. 91.
 
 123 
 
 CHAPTER THE SECOND. 
 
 OF THE DEFENCE TO BILLS. 
 
 [102] 
 
 Section I. 
 Bij whom a Suit may he defended. 
 
 In treating of the defence which may be made to 
 a bill it will be proper to consider, I. By whom 
 a suit may be defended. II. The nature of the va- 
 rious modes of defence ; under which head will be 
 considered, 1, demurrers ; 2, pleas ; 3, answers and 
 disclaimers, or any two or more of them jointly, 
 each referring to a separate and distinct part of the 
 bill. 
 
 When the interest of the crown, or of those The sovereign 
 
 ' by the nttorney 
 
 whose rights are under its particular protection, is °j:j°'""*°'-s«'»- 
 cmicerned in the defence of a suit, the king's at- 
 torney-general, or during the vacancy of that office 
 the solicitor-general, becomes a necessary party to 
 support that interest (a) ; but it has been already 
 observed, that a suit in the court of chancery is not 
 the proper remedy where the crown is in possession, 
 or any title vested in it is sought to be divested, or 
 affected (b), or its rights are the immediate and 
 sole object of the suit. The queen's attorney or 
 solicitor seems to be the party necessary to defend flOS"! 
 her rights (c). 
 
 (a) Balch V. Waxtall, 1 P. Wms. (c) See 2 Roll. Ab. 213. But a 
 
 445 ; 2 Sch. & Lefr. 617. queen dowager has been sued as & 
 
 (6) See above, p. 33. common person. 9 Hen. VI. 53.
 
 124 BY WHOM A WRIT [Chap. II. 
 
 Tliose who are 
 able to defend a 
 •uit aloae. 
 
 Infanta 
 
 All other bodies politic and corporate (1), and 
 persons who do not partake of the prerogative of 
 the crown, and have no claim to its particular pro- 
 tection, defend a suit either by themselves, or un- 
 der the protection of or iointlv with others (1). 
 
 Those who arc ^ ' /. ^ n 
 
 ■nabie. Jiodics politic and corporate, and persons or luU 
 
 age, not being married women, or idiots or lunatics, 
 defend a suit by themselves ; but infants, idiots 
 and lunatics, are incapable by themselves of de- 
 fending as they are of instituting a suit ; and mar- 
 ried women can only defend jointly with their hus- 
 bands, except under particular circumstances, un- 
 less a special order is obtained to authorize or 
 compel their defending separately. 
 
 Infants institute a suit by their next friend ; but 
 
 to defend a suit the court appoints them guardians, 
 
 who are usually their nearest relations, not con- 
 
 and peraoBg in a cemcd iu poiut of iutcrcst iu the matter in question(^ 
 
 hood! '^^^ ' (2). If a person is by age or infirmities, reduced to a 
 
 Writ of annuity against Joan, queen 51. On the subject of appointing 
 
 dowager of Henry IV. guardians ad litem for infant defend- 
 
 (d) Offley V. Jenney, 3 Ch. Rep. ants, see Brassington v. Brassing- 
 
 (1) See p. 10, note: It there appears that where an officer of a cor- 
 poration is made defendant for the purpose of discovery merely, no 
 relief should be prayed against him ; none general nor special ; and the 
 prayer of the bill shjjuld be so framed that it will distinctly appear that 
 all the relief sought is intended to be confined to the other defendants 
 and that none will be asked against such officer at the hearing, even 
 as to costs. If there is a general or special prayer for relief which is 
 applicable to the officer of the corporation as well as to other defen- 
 dants, he is entitled to put in an answer containing a full defence ; 
 otherwise he might be surprised at the hearing by an application for 
 costs or for some other relief against himself or his property upon 
 grounds which he might have fully obviated by his answer. Mc Iniyre 
 V. Trustees of Union College and E. Nott, 6 Paige's R. 242-3, 239. 
 
 (2) [3 Bibb, 625: BedelVs heirs v. Lewis's heirs, 4 J. J. Marshall's 
 R. 567 ; 2 Revised Statutes, N. Y. 186, J 122, 123, 124 ; lb. 317, J 4 ;
 
 S. I.] MAY BE DEFENDED. 124 
 
 second infancy, he may also defend by guar- 
 dian (e). 
 
 Idiots and lunatics defend by their committees (/) Jfj°*' ""* '"**• 
 who are by order of the court appointed guardians [104] 
 
 ton, 3 Anstr. 369 ; Eyles v. Le Gros, (e) Leving v. Caverly, Prec. in 
 
 9 Ves. 12; Jong-s»na V. PAe/, 9 Ves. Chan. 229 ; 1 Eq. Ca. Ab. 281; 
 
 357; Williams v. Wi/7m, 10 Vea. Wilson v Grace, 14 Ves. 172; and 
 
 159; //(//v. Smf<A,l Madd. R. 290; see Att. Gen. v. Waddington, 1 
 
 Lushington v. Seicell, 6 Madd. 28, Madd. R. 321. 
 
 iedvide Tappen v. Norman, 11 Ves. (/) 1 Vern. 106; Lyon v. Mercer, 
 
 563. 1 Sim. & Stu. 356. 
 
 Rules N. Y. Chancery, 143, 145, 146, 147, 148, 149; Knickerhacker 
 V. De Freest, 2 Paige's C. R. 304. As to partition cases, see 2 R. S. 
 329, 5 80, 81 ; Larkin v. Mann, 2 Paige's C. R. 27; Wilkinson v. 
 PamTi, 3 lb. 663. 
 
 It is error to enter a decree against infant defendants, without as- 
 signing them a guardian ad litem. Curtis^s heirs v. Ellis, 3 A. K. 
 Marshall's R. 77; Iron's executors v. Crist, lb. 143; Jones v. Lacey, 
 3 J. J. Marshall, 644 ; Roberts v. Stanton, 2 Munf 129. And although 
 the infancy does not appear in the original proceedings, yet if it be 
 alleged in a petition for a rehearing (the decree being interlocutory) 
 a guardian ad litem must be appointed. Roberts v. Stanton, supra. 
 
 Jt is presumed that, if an infant defendant were to appear and defend 
 by solicitor, a complainant might compel an appearance and defence 
 by guardian. This has been done at common law. ■ Hindmarsh v. 
 Chandler, 7 Taunt. 488. Infants cannot be made parties to a bill for 
 the sake of discovery merely, as they do not answer on their oaths. 
 Leggetl V. Sellon, 3 Paige's C. R. 84. No decree or order of revival 
 can be made against an infant, by default, under the provisions of the 
 New-York Revised Statutes. But if the infant neglects to appear 
 and procure the appointment of a guardian, the same steps for the 
 appointment of a guardian ad litem must be taken as in other cases 
 where the infant neglects to appear. Wilkinson v. Parish, 3 Paige's 
 C. R. 653. In a controversy between the superseded and substituted 
 guardian as to the effects of the ward, such ward must be a party. 
 Campbell v. Williams, 3 Monroe's R. 125. 
 
 It has never been the course and practice of the court to appoint a 
 guardian to an infant feme covert. Matter of Whittaker, 4 J. C. R. 
 379, and cases there cited; Roach v. Garxan, 1 Ves. sen. 157. 
 
 A suit does not abate by the infant's coming of age. No cliange is 
 necessary in the proceedings. Cur. Can. 464 ; Cary 22.]
 
 125 BY WHOM A WRIT [ClIAP. II. 
 
 for that purpose as a matter of course (g) ; and if 
 it happens that an idiot or a lunatic has no com- 
 mittee (A), or the committee has an interest opposite 
 to that of the person whose property is intrusted to 
 his care (i), an order maybe obtained for appointing 
 anotlier person as guardian for the purpose of de- 
 fending a suit (Ic). So if a person who is in the 
 condition of an idiot or a lunatic, though not found 
 such by inquisition, is made a defendant, the court 
 upon information of his incapacity will direct a 
 guardian to be appointed (/) (1). 
 
 (g) Westcomb v. Westcomh, Dick. Lloyd v. , Dick. 460. 
 
 233. • (k) Howlett v. Wilbraham, 5 
 
 (A) Hoiolett V. Wilbraham, 5 Madd. 423. 
 
 Madd. 423. (I) Anon. 3 P. Wms. Ill, note ; see 
 
 (i) Snell V. Hyat Dick. 287 ; see Wilson v. Grace, 14 Ves. 172. 
 
 (1) [And see Howlett v. Wilbraham, 6 Ves. Jr. 423, where on a 
 motion of a complainant, a lunatic defendant had a guardian appointed 
 to put in an answer. And see Carter v. Carter, 1 Paige's C. R. 463. 
 
 It is an almost universal rule, that the lunatic need not be made a 
 party defendant with his comtnittee. The suit should be against the 
 latter as committee. Executors of Brasher v. Van Cortlandt, 2 X C, 
 R. 242 ; 7 eal v. Woodworth, 3 Paige's C. R. 470 ; and see in the mat- 
 ter of Heller, lb. 199. Althougii a person has been found a lunatic 
 abroad, yet upon his leaving his country for another, a commission 
 would have to issue within the latter country, before he could be 
 brought before the court as in ordinary cases. Matter of Housloun, 1 
 Russ. C. R. 312. 
 
 A committee must be appointed for a non-resident lunatic, to enable 
 such committee to obtain the control ot property within the jurisdiction 
 of the court. Matter of Pettit, 2 Paige's C. R. 174 ; Ex parte Baker, 
 Coop. C. C. 205. 
 
 It is doubtful how far the insolvency of a committee will be a suffi- 
 cient cause for removing him as a party and actor. Ex parte Mild- 
 may, 3 Ves. Jr. 2 ; Ex parte Proctor, 1 Svvanst. 532 ; Ex parte Liv' 
 ingston, 1 J. C. R. 434. 
 
 It would seem, that where there is a joint appointment of two as 
 committee, and one dies, a fresh appointment must take place. Ca. 
 Temp. Talbot, 143; but see Ex parte Picard, 3 V. &. B. 127; £x 
 parte Lyne, Forrest, 143.
 
 126 
 
 S. I.] MAY BE DEFENDED. 12S 
 
 A married woman, though she cannot by herself ^'^'^^•^^°"^°- 
 institute a suit, and if her husband is not joined with 
 her must seek the protection of some other person 
 as her next friend, may yet, by leave of the court, 
 defend a. suit separately from her husband without 
 the protection of another (?/i). Thus, if she claims 
 in opposition to any claims of her husband, or if she 
 lives separate from him (n), or disapproves the de- 
 fence he wishes her to make (p), she may obtain an 
 order for liberty to defend the suit separately (/?), 
 and her answer maybe read against her (q). If a 
 husband is plaintiff in a suit, and makes his wife ^ ^ 
 a defendant, he treats her as a feme sole, and she 
 
 (?n) 4 Via. Ab. 147, Baron and in by a married woman without an 
 
 Feme, I. a. 20 ; 1 Sim. & Stu. 1G3. order for the purpose may be sup- 
 
 [Barry v. Cane, 3 Madd. R. 472 ; pressed as irregularly filed. But if 
 
 Ormshy v. White, 1 Hogau's C. R. filed with her approbation, and ac- 
 
 254.] cepted by the plaintiff, it will not be 
 
 (n) Portman v. Popham, Tothill, deemed irregular upon objection 
 
 75 ; Jackson v. Haworih, 1 Sim. & taken by her merely for want of 
 
 Stu. 161. the order for leave to file it separate- 
 
 (o) Ex parte Halsam. 2 Atk. 50 ; ly ; and she will be bound by an offer 
 
 2 Eq. Ca. Ab. 66, contained in it. See Duke of C/tan- 
 
 (p) Powell V. Prentice, Ca. t. das v. Talbot, 2 Y.Wms. 311 ; S. C. 
 
 Hardw. 258 ; Wybourn v. Blunt, Sel. Ca. in. Cha. 24. 
 Dick. 155. A separate answer put (g) Travers v. Buckly, I \es.383. 
 
 Where the property is small, a party in the situation of a lunatic 
 has been allowed to answer by guardian, without the appointment of a 
 committee. Ex parte Picard, supra; Anonymous, cited in [B.] 3 P. 
 Wms. Ill ; Eyre v. Wake, 4 Ves. Jr. 795; Wilson v. Grace, 14 Ves. 
 Jr. 171. 
 
 Where, after a decree in a suit, in which a lunatic and his commit- 
 tee are defendants and the committee dies and a new one is appointed, 
 a motion should be made for an order that the latter be named as the 
 committee in all the future proceedings in the cause. Lyon v. Mercer, 
 1 Sim, & Stu. 356. 
 
 The committee of a lunatic, who has voluntarily accepted the ap- 
 pointment, cannot be discharged without showing some valid excuse 
 for resigning his trust. In the matter of Lylle, 3 Paige's C. R. 251.]
 
 126 BY WHOM A WRIT [ChAP. II. 
 
 may answer separately without an order of the 
 court for the purpose (r), The wife of an exile, or 
 of one who has abjured the realm, may defend as 
 she may sue alone (s) ; and if a husband is out of 
 the jurisdiction of the court (t), though not an exile, 
 or if he cannot be found {u), his wife may be com- 
 pelled to answer separately (1). If a married 
 
 (r) Ex parte Strangeways, 3 b. 133, a.; and 2 Vern. 105. 
 Atk. 478 ; Brooks v. Brooks, Free. (0 Carlton v. M'Enzie, 10 Ves. 
 
 in Chan. 3^4; Ainslie v. Medlicott, 442; Bunyan v. Mortimer, 6 Madd. 
 
 13 Vee. 266. 278. 
 
 («) See page 24, 19 Co. Litt. 132, (m) Bell v. Hyde, Free, in Cli. 328. 
 
 (1) [An order must be obtained for a wife to answer separately 
 before she can do so. A husband may obtain this order where he 
 cannot influence his wife to answer ; and where the husband is abroad 
 and not amenable to the jurisdiction, the complainant may obtain the 
 order. And it is doubtful whether, in either case, the husband can 
 answer separately before there is an order that the wife shall put in a 
 separate answer. The practice, however, seems to be to receive his 
 answer. And yet, if it were not a case in which an order might be 
 obtained for the wife to answer separately, she must answer jointly ; 
 and then his answer, if on file, must be taken off, in order that she may 
 join it. Garey v. Whiltingham, supra. The wife becomes a substan- 
 tial party to a suit, only from the time of the order that she should 
 answer separately. Jackson v. Haworth, supra. 
 
 It is not a ground for the wife's answering alone that her husband 
 , is in prison. Anonymous, 2 Ves. Jr. 332 ; and see Duke of Chandos 
 V. Talboi, 2 P. Wms. 371. 
 
 If a female defendant marry and neglect or refuse to disclose the 
 fact, so that her husband might be regularly brought before the court, 
 the cause may proceed without regard to marriage. Harily v. O' Fla- 
 herty, 1 Mol. 5 ; and see Thorold v. Hay, Dick. 410. 
 
 If a married woman be of unsound mind and deserted by her hus- 
 band, and she is a defendant in a suit, an order must be obtained, which 
 of course for her putting in her answer separate from her husband, 
 having had a guardian appointed her. 1 Grant's Pr. 354. 
 
 Where a woman was abandoned by her husband, and could get no 
 person to be her guardian, she was allowed to file her answer without 
 ■one. Glover v. Young, Bunb. 167. 
 
 Where a feme sole answers, and afterwards, pendente lite, marries, 
 the plaintiff may proceed against her without reviving, and the bus-
 
 S. 1.] 
 
 MAY BE DEFENDED. 
 
 126 
 
 woman obstinately refuses to join in defence with 
 her husband, she may also be compelled to make 
 a separate defence ; and for that purpose an order 
 may be obtained that process may issue against 
 her separately (x). Except under such circum- 
 stances a married woman can only defend jointly 
 with her husband (y). 
 
 (x) Pain V. , 1 Ca. in Cha. 
 
 296; 1 Sim. & Stu. 163. 
 
 (y) As to the answer of a married 
 woman, see further, Plomer v. Plo- 
 mer, 1 Ch. Rep. 68 ; Wrottesley v. 
 Bendisk, 3 P. Wms. 235 ; Penne v. 
 Peacock, Ca. t. Talb. 41 ; Murriett 
 V. Lyon, Bunbury, 175; Ex parte 
 
 Halsam, 2 Atk. 50 ; Traverse v. 
 Buckley, 1 Wils. R. 264 ; Barry v. 
 Cane, 3 Madd. 472 ; Jackson v. Ha- 
 worth, 1 Sim. &. Stu. 161 ; Garey v. 
 Whittingham, 1 Sim. &. Stu. 163 j 
 Bushell V. Bushell, 1 Sim. & Stu. 
 164. 
 
 band shall be bound by the answer she made while sole. 
 296, (6th edit.;) and see Gary, 81.] 
 
 1 Harr. Pr.
 
 127 
 
 [106] CHAPTER II. 
 
 Section II. — Part I. 
 
 Of the Nature of the various Modes of Defence (1) 
 to a Bill ; and first of Demurrers. 
 
 Four modes of It lias beGii mentioned (a) that the person against 
 
 dafence. i m • i i • 11 i 
 
 whom a bill is exhibited, being called upon to 
 answer the complaint made against him, may de- 
 fend himself, 1. Bydemurrer, by which he demands 
 the judgment of the court whether he shall be 
 compelled to answer the bill or not (h). 2. By plea, 
 whereby he shows some cause why the suit should 
 be dismissed, delayed, or barred (c). 3. By an- 
 swer, which controverting the case stated by the 
 plaintiff, confesses and avoids, or traverses and de- 
 
 («) Pages 14, 15, 16, 17. (c) Ibid. 324, Wy. Ed. 
 
 (6) Pract. Reg. 162, Wy. Ed. 
 
 (1 ) [See a neat synopsis of the different modes of defence in equity 
 opposite to page 319, in Lube on Pjeading.] 
 
 The rules of pleading are founded in good sense, and are more sim- 
 ple than the rules of special pleading in an action at law. But the 
 forms and rules of p'eading both in suits at law and in courts of 
 equity, are lo be strictly observed, otherwise great laxity of pleading 
 may follow and the object of the rules would be defeated. But as the 
 most learned and careful pleader in the hurry of business may make 
 mistakes in mere matt.-rs of form, amendments are allowed with great 
 liberality, and without costs, unless the opposing par'y is thereby pre- 
 judiced; and thus any hardship which a party might otherwise suffer 
 by mistakes in matters of form which have no bearing on the merits 
 of the cise may be avoided. ( Wright v. Dame, 22 Pick. R. 58, 55.) 
 
 But in pleading matters of substance in equity, it was held in Bur- 
 din V. Grew, 8 Id. HI, 108, that the same strictness is required as at 
 law. 
 
 But see p. [295] note, infra.
 
 S. II. p. I.] DEMURRERS. 127 
 
 nies, the several parts of the bill (d) ; or, admitting 
 the case made by the bill, submits to the judgment 
 of the court upon it, or upon a new case made by 
 the answer, or both ; or by disclaimer, which at 
 once terminates the suit, the defendant disclaiming 
 all right in the matter sought by the bill (e). And 
 all or any of these modes of defence may be joined, 
 provided each relates to a separate and distinct part 
 ofthebill (1). 
 
 It has also been observed that the grounds on various ^ounda 
 
 " of defence. 
 
 which defence may be made to a bill, either by an- rio?] 
 swer, or by disputing the right of the plaintiff to 128 
 
 compel the answer which the bill requires, are va- i^ifferci>t 
 
 r T ' grounds ot oe- 
 
 rious both in their nature and in their effect. Some game bm.*''^ 
 of them, though a complete defence as to any relief, 
 are not so as to a discovery ; and when there is no 
 
 {d) 2 West. Symb. Chan. 194; (e) Pract. Reg. 175, Wy. Ed. 
 Pract. Reg. 11, Wy. Ed. 
 
 (2) If any part of the bill is good and entitle plaintifF to relief or 
 discovery a demurrer to the whole cannot be sustained. It is an es- 
 tablished and universal rule of pleading in chancery that a defendant 
 may meet a complainant's bill by several modes of defence. He may 
 demur, answer and plead to different parts of the bill ; so that if a bill 
 for a discovery contain proper matter for the one and not for the other, 
 •defendant should answer the proper and demur to the improper matter; 
 and if he demur to the whole bill the demurrer must be overruled. 
 Livingston v. Story, 9 Peters 657. [658,] 632. But the several de- 
 fences must each refer to and profess in terms to be put in "as a defence 
 to separate and di.stinct parts of the bill. {Leacraft v. Demprey, 4 
 Paige R. 125, 124.) Defendant cannot plead and demur, answer and 
 demur to the whole or some part of the bill. [Clark v. Phelps, 6 
 Johns. C. R. 214; Beauchamp v. Gibhs, 1 Bibb, 481.] i^ee infra 
 [212,] [300]. 
 
 In Massachusetts the subject is regulated by express rules. R. 21, 
 28, see 24 Pick. 417, 415. 
 
 In New- York the pleadings on part of defendant are now limited to 
 two, demurrer and answer. See code of procedure.
 
 128 DEMURRERS. [ChAP. IL 
 
 ground for disputing the right of the plaintiff to the 
 relief prayed, or if the bill seeks only a discovery, yet 
 if there is any impropriety in requiring the discovery, 
 or if it can ansvv^er no purpose for which a court of 
 equity ought to compel it, the impropriety of com- 
 pelling the discovery, or the immateriality of the dis- 
 covery if made, may be used as a ground to protect 
 the defendant from making it. Different grounds of 
 defence therefore maybe applicable to different 
 parts of a bill ; and every species of a bill requiring 
 its own peculiar ground to support it, and its own 
 peculiar form to give it effect, a deficiency in either 
 of these points is a ground of defence to it. 
 
 Natnre and gene- -.iti ^ r' i f 
 
 rai causes of a Whcnevcr auv ffround oi deience is apparent on 
 the bill itself (1), either from matter contained in it^ 
 
 demurrer. 
 
 grJSn^ed^on an (1) Allowing that a demurrer, founded on the Ship Registry Acts, 
 allegation which would hold to a bill respecting a ship, if the bill alleged that the ship 
 pressiy allege was British built ; an allegation that the ship was built by a builder 
 which Ae'de- described to be of a particular place in this country, is not a sufficient 
 ^"'■'■^J" ^ allegation to ground upon it such a demurrer ; because the ship may 
 
 have been built by that builder in some other part of the world. Smith 
 
 V. Small, 14 Sim. 119. 
 inconeutent g^t where two inconsistent statements are made in a bill, a defend- 
 
 ttatemenU. i , i ■ i • 
 
 ant is entitled, upon demurrer, to adopt that which is most against the 
 
 plaintiff's interest. So that where tlie plaintiff would have no right 
 to institute the suit, as issue in tail, and the bill sets forth the limita- 
 tions of a settlement in such a manner as to show that the plaintiff's 
 father is tenant for life, with remainder to the plaintiff as tenant in 
 tail, but subsequent parts of the bill speak of the father as tenant in 
 tail, and of the plaintiff as heir in tail ; the defendant is entitled, on 
 demurrer, to treat the bill as stating that the plaintiff is issue in tail, 
 and not as tenant in tail. Vernon v. Vernon, 2 My. &. C. 145. As 
 to an inference on demurrer, see same case. 
 False allegation And when a plaintiff founds his case upon the allegation that a 
 of recognition of foreign country is recognised by the English government as an inde- 
 pendent state, and that allegation is false, the judge is bound to know 
 judicially that it is false, and to allow a demurrer depending on its fal- 
 sity. For it is the duty of the judge in every court to take notice of
 
 S. II. p. I.] DEMURRERS. 128 
 
 or from defect in its frame, or in the case made by it, 
 
 the proper mode of defence is by demurrer. (1) 129 
 
 A demurrer is an allegation of a defendant, which, 
 
 admitting the matters of fact (/) alleged by the bill 
 
 to be true (2), shows that as they are therein set 
 
 (/) A demurrer confesses matter 2 Ves. & B. 95 ; 3 Meriv. 503 ; Cuih- 
 of fact only, and not matter of law. hert v. Creasy, G Madd. 189. [Pry- 
 Lord Raym. 18; 1 Ves. Jr. 78, 289 ; or v. Adams, Call's R. 391.] 
 
 public matters which affect the government of the country ; and the 
 courts of the sovereign should act in unison with the government of 
 the sovereign. Taylor v. Barclay, 2 Sim. 213. 
 
 (1) [Harris v. Thomas, 1 Hen. & Munf. 18; Alderson v. Riggars, 
 4 lb. 472.] 
 
 (Ti See note to original page [211], infra. [A demurrer to a bill 
 must be founded on some dry point of law, which goes to the absolute 
 denial of the relief sought; and not on circumstances in which a mi- 
 nute variation may incline the court either to grant, or modify, or 
 refuse the application. Verplanck v. Caines, 1 J. C. R. 67.] It admits 
 all material allegations on every cliar^e or fact, well pleaded, not every 
 thing slated. Smith v. Allen et al., Saxton C. R. N. J. 52, 43 ; Goble 
 V, Andriiss et al., I Green C. R. 76, 66, 71 Arg. 
 
 Its office is to bring before the court the right to maintain the bill 
 upon the admission pro hac vice of the entire truth of all its allegations, 
 and the court cannot look aliunle, to search out or conj 'cture what 
 other facts might or did exist to defeat it; tor this is the office of a plea 
 or answer. Ocean Insurance Co. v. Fields, 2 Story Rep. 77, 59. 
 
 [A demurrer is the negation of the rule of law laid down in the first 
 proposition of the bill, namely, that the right to discovery and relief 
 results from the relation assumed; or, rather since the causes of de- 
 murrer must be assigned, (Ueamcs' Ord. Chan. 77, 173,) it is a negative 
 proposition, that from- the complainants oicn showing, he has not the 
 right to discovery and relief, either, because the relation stated by him 
 is not adequate, or, because there are some of the objections to answer- 
 ing apparent on the face of the bill. Thus, an issue in law is joined, 
 not in the first instance on the complainant's right, but on the validity 
 of the causes assigned; and if any of those causes be allowed on ar- 
 gument, the right is necessarily gone. The statement of tiie causes 
 of demurrer, tiierefore, will be nothing more than a reference to the 
 bill and an enumeration of the objections appearing on the face of it 
 
 on which the defendant means to rely. Hence arises two questions : 
 
 Whether the objection, as stated, really exists? and whether such ob- 
 
 13
 
 Ends of a do 
 murrer. 
 
 129 DEMURRERS. [ChAP. II. 
 
 forth they are insufficient for the plaintiff to proceed 
 upon or to obHge the defendant to answer (g) ; or 
 that for some reason apparent on the face of the 
 [108] bill (Ji), or because of the omission of some matter, 
 which ought to be contained therein, or for want of 
 some circumstance which ought to be attendant 
 thereon, the defendant ought not to be compelled 
 to answer. It therefore demands the judgment of 
 the court whether the defendant shall be compelled 
 to make answer to the plaintiff's bill, or to some 
 
 130 certain part thereof (?'). The causes of demurrer 
 are merely upon matter in the bill {k), or upon the 
 omission (Z) of matter which ought to be therein 
 or attendant thereon ; and not upon any foreign 
 matter alleged by the defendant (jn). The prin- 
 cipal ends of a demurrer are, to avoid a discovery 
 which may be prejudicial to the defendant, to cover 
 a defective title, or to prevent unnecessary ex- 
 pense. If no one of these ends is obtained, there is 
 little use in a demurrer. (1) For, in general, if a de- 
 murrer would hold to a bill, the court, though the 
 defendant answers, will not grant relief upon hear- 
 ing the cause. There have been, however, cases 
 
 (g) Prac. Reg. 162, Wy. Ed. (t) 2 Ves. 247. 
 
 (A) Ord. in Cha. 26, Ed. Bea. (/) 3 P. Wms. 395. 
 
 (t) 3 P. Wms. 80 ; Prac. Reg. 162, (m) Ord. in Cha. 26, Ed. Bea. 
 Wy. Ed. ; see 2 Sch. & Lefr. 206. 
 
 jection is valid ? The first is, generally, a question of the adequate- 
 ness of the relation stated by the bill ; the latter is a question on the 
 rule of law: and the defendant should, in assigning the causes of de- 
 murrer, clearly point out the nature of the o!>jection which he takes,_ 
 and how it appears on the adverse pleading. Lube, 338, 339, 340.] 
 
 (1) [Therefore, a bill praying for a receiver is not, on that account, 
 demurrable, as the appointment of one rests in the sound discretion of 
 the court. Verplanck v. Caines, 1 J. C. R. 67.
 
 S. II. p. I.] DEMURRERS. 130 
 
 in which the court has given rehef upon hearing, 
 though a demurrer to the rehef would probably have 
 been allowed (w). But the cases are rare. [1^9] 
 
 Bills have been already considered under three ing of demur- 
 
 . . . '■6'™' 
 
 general heads; 1, original bills; 2, bills not origi- 
 nal ; and, 3, bills in the nature of original bills. 
 The several kinds of bills ranged under the second 
 and third heads being consequences of bills treated 
 of under the first head, the defence which may be 
 made to original bills in its variety comprehends the 
 several defences which may be made to every other 
 kind of bill, except such as arise from the peculiar 
 form and object of each kind. In treating there- 
 fore of demurrers it will be convenient first to con- 
 sider demurrers to original bills, under which head 131 
 the nature of demurrers in general, and tlie principal 
 grounds of demurrer to every kind of bill, will be 
 necessarily noticed : the distinct causes of demurrer 
 peculiar to the several other kindsof bills will be then 
 
 (n) 3 P. Wms. 150 ; 12 Mod. 171, or confessed, a decree would then be 
 
 (1). It seems that the court, upon made. See 2 Ves. Jr. 97 ; Brook v. 
 
 tlje argument of a demurrer, decides Hewitt, 3 Ves. 253 ; 6 Ves. CSC ; 7 
 
 upon the facts as stated in the bill, Ves. 245 ; 2 Sch. &, Lefr. 638 ; 6 
 
 whether if the cause were to proceed Madd. 95 (2). 
 to a hearing, and they were proved 
 
 (1) Aiifi see Ludlow v. Simond, on appeal, 2 C. C. E. I. 
 
 (2) In Underlnll v. Van Cortlandt, 2 J. C. R. 339, an objection was 
 made at the liearinir, after answer, that the remedy was at law. The 
 court said — " At any rate, by answering in chief, instead of demurring, 
 " the defendants submitted the cause to the coj^nizauce of this court, 
 " and they come too late, at the hearing on the merits, to raise the ob- 
 "jection. It would be an abuse of justice, if the defendants were to 
 "be permitted to protract a litigation to this extent, and with the ex- 
 «' pense that has attended tiiis suit, and then, at the fmal hearing, inte- 
 '' po>e this preliminary objection." And see Grnndin v. Lnoy 2 
 Paige's C. R. 509 ; U. S. v. Sturges, 1 Paine's C. C. R. 526 ; and 
 Uawtey v. Cramer, 4 Cowen, 717.]
 
 131 DEMURRERS. [ChAP. !!► 
 
 mentioned ; and in the third place will be con- 
 sidered the frame of demurrers in general, and the 
 manner in which their validity is determined. 
 
 In treating of original bills they have been divided 
 into bills praying relief, and bills not praying relief; 
 and it has been mentioned that both require a dis- 
 covery from the party against whom the bill is exhi- 
 bited. Demurrers to original bills may therefore be 
 considered under two heads : first, demurrers to re- 
 lief, which frequently include a demurrer to dis- 
 covery ; and secondly, demurrers to discovery only, 
 which sometimes consequentially affect the relief. 
 Under these heads will necessarily be considered 
 the causes of demurrer, as well to bills which 
 seek a discovery only as to such as likewise pray 
 relief. 
 [110] From what has been observed in a preceding 
 
 of dRmuSerto* P^gG it may be collected tliat the principal grounds 
 of objection to the rehef sought by an original bill,, 
 which can appear on the bill itself, and may there- 
 fore be taken advantage of by demurrer, are these 
 (o) ; I. that the subject of the suit is not within the 
 
 (0) It has been said that a defend- bill may be dismissed. Anon. Mosely, 
 ant may demur to a bill if it appears 47, 356; Anon. Dunbury, 17 ; Owens 
 upon the face of it to be brought for v. Smith, Cotnyn, 715; Brace v. 
 a very small sum ; but it is most Taylor, 2 Atk. 253. (1) 
 
 usual to apply to the court that the 
 
 (1) [And see 2 R. S. 173 ; Moore v. Ly'tle, 4 J, C. R. 183 ; Fuller- 
 inn V. Jackson, 5 Jb. 276 ; Douw v. Sheldon, 2 Paige's C. R. 303 ; Vre- 
 denburgh v. Johnson, 1 Hopk. 112; Milchellv. Tighe, lb. 119; Hamil-^ 
 ton V. Joh'iSoTi, Vern. & Scriv. 394. 
 
 It is said, that the value of the mat'er in demand which determines 
 the jurisdiction of the court, is to be ascertained hy the chiim made by 
 the complainant in his bill, and not by the finding; of tiie court. Skin-- 
 ner v. Bailey, 7 Day's R. 496 ; Judd v. Bushnell, lb. 205. A justice's; 
 judgment; where the amount is $100 and upwards, is as well entitled
 
 S. TI. P. I.] DEMURRERS. 131 
 
 jurisdiction of a court of equity ; II. that some other 
 court of equity has the proper jurisdiction ; III. that 
 the plaintiff is not entitled to sue by reason of some ^'^^ 
 
 personal disability ; IV. that he has no interest in 
 the subject, or no title to institute a suit concerning 
 it ; V. that he has no right to call on the defendant 
 concerning the subject of the suit ; VI. that the de- 
 fendant has not that interest in the subject which 
 can make him liable to the claims of the plaintiff; 
 VII. that for some reason founded on the substance 
 of the case, the plaintiff is not entitled to the relief 
 he prays. To these may be added, VIII. the de- 
 ficiency of the bill to answer the purpose of complete 
 justice : and IX. the impropriety of confounding 
 distinct subjects in the same bill, or of unnecessarily 
 multiplying suits. When the discovery sought by when demurrer 
 
 ,.,, ,, . , T/» -.to the relief will 
 
 a bill can only be assistant to the rehei prayed, a extend to the 
 ground of demurrer to the relief will also extend to 
 the discovery ; but if the discovery may have a fur- 
 ther purpose, the plaintiff may be entitled to it 
 
 to the aid of a court of equity as the jiidtrnient of a court of record. 
 Bailetj V. Burton, 8 Wendell's H. 339. Several judgment creditors, 
 the joint amount of whose juduinents is $100 or upwards, may unite in 
 a bill for discovery and to remove impediments at law created by the 
 fraud of their common debtor. lb. A bill of discovery to aid a suit 
 at law, although the sum in controversy is under $100, will be sus- 
 tained in the court of chancery of the State of New-York. Golder v. 
 Becker, 1 Edwards' V. C. R. 271.] Schroeppel v. Redjield, 5 Paige 
 R. 246, 245. Before the abolition of that court in New-York, defend- 
 ant might demur or move to dismiss with costs, if it appoared on the 
 bill that the subject in controversy was beneath the jurisdiction. If 
 it dill not appear he must, to avail of the objection, bring it up by his 
 plendings. The proper averment of the bill would be in the language 
 of the statute, "that the value of the defendants equitable intere.-ts, 
 &c., exceeds, or is more than $100." Bradl v. Kirkpatrick, 7 Paige's 
 R. 62-4; Smels v. Williams, 4 Id. 365, 364. 
 
 discovery.
 
 132 DEMURRERS. [ChAP. II^ 
 
 [111] tliongh he has no title to relief. In considering, 
 therefore, these several grounds of demurrer to re- 
 lief, such as may, and such as cannot, extend to 
 discovery likewise, will be distinguished. 
 
 dicuon."*"'""" I. The general objects of the jurisdiction of a 
 court of equity. (1) have been noticed in a former 
 page {p) ; and from thence it may be collected, that 
 
 Where the ju- the jurisdictiou, when it assumes a power of de- 
 
 risdiction is ex- . . . ■ • i /-i \ i , i • • i 
 
 ercised. cisiou, IS to DG excrciscd, (1), whcro the prmciples 
 
 ^'^^ of law, by w^hich the ordinary courts are guided, 
 
 give a right, but the powers of those courts are not 
 sufficient to afford a complete remedy, or their 
 modes of proceeding are inadequate to the purpose ; 
 2, where the courts of ordinary jurisdiction are made 
 instruments of injustice; 3, where the principles 
 of law by w^hich the ordinary courts are guided give 
 no right, but upon the principles of universal justice, 
 the interference of the judicial power is necessary 
 to prevent a wrong, and the positive law is silent: 
 and it may also be collected that courts of equity" 
 without deciding upon the rights of the parties, 
 administer to the ends of justice by assuming a 
 jurisdiction ; 4, to remove impediments to the fair 
 decision of a question in other courts ; 5, to provide 
 for the safety of property in dispute pending a 
 litigation, and to preserve property in danger of 
 being dissipated or destroyed by those to whose 
 care it is by law intrusted, or by persons having 
 
 (/)) Pages 4, 5. 
 
 (1) The reader is referred generally to the Treatises- on the subject 
 of Equity Jurisprudence or Jurisdiction, as to this part of Lord Redes- 
 dale's Treatise, extending from tliis page to page [151], inasmuch as 
 it belongs to that subject rather than to the subject of Equity Plead- 
 ings, and embraces a very wide field.
 
 S, II. p. I.] DEMURRERS. 133 
 
 immediate but partial interests ; 6, to restrain the 
 assertion of doubtful rights in a manner productive 
 of irreparable damage ; 7, to prevent injury to a [112] 
 third person by the doubtful title of others : and 
 8, to put a bound to vexatious and oppressive liti- 
 gation, and to prevent multiplicity of suits : and 
 further, that courts of equity, without pronouncing 
 any judgment which may affect the rights of parties, 
 extend their jurisdiction ; 9, to compel a discovery, 
 or obtain evidence which may assist the decision of 
 other courts ; and 10, to preseiTe testimony when 
 in danger of being lost before the matter to which 
 it relates can be made the subject of judicial in- "1.34 
 
 vestigation. 
 
 1. Cases frequently occur in which the principles compie'te^reLe*- 
 (f/) by which the ordinary courts are guided in their f ^Jgarright,' Si 
 admmistration ot justice give a right, but trom ac- 
 cident or fraud, or defect in their mode of proceed- 
 ing, those courts can afford no remedy, or cannot 
 give the most complete remedy ; and sometimes the rUS] 
 effect of a remedy attempted to be given by a court 
 
 (q) The existence of courts of ceedings of the ordinary courts have 
 equity in England distinct from the not admitted of the application. And 
 courts of ordinary jurisdiction, has from time to time the courts of com- 
 sugsjested an idea that the ordinary men law have also been induced to 
 courts, and especially the courts of admit, as grounds of their decision, 
 common law, have not in their ad- rules established in the courts of 
 ministration of justice any recourse equity, which they had before reject- 
 to such principles of decision as are ed as clashing with established rules 
 merely rules of equity. But in fact of the common law; and for some 
 those principles have been as cou- purposes they have also noticed prin- 
 stautly applied by the ordinary courts ciples of decision established in the 
 as by the courts of equity (1), except courts of equity, which the forms of 
 where they have clashed with estab- proceeding iu the courts of common 
 lished rules of the common law, and law have not enabled them directly 
 where the forms observed in the pro- to enforce. 
 
 (1) See Smith's " Manual of Equity Jurisprudence," Introd. Sect. I.
 
 loit bonds, 
 
 134 DEMURRERS. [ChAP. IL 
 
 of ordinary jurisdiction is defeated by fraud or ac- 
 cident. In such cases courts of equity will inter- 
 pose to give those remedies which the ordinary 
 courts would give if their powers were equal to the 
 purpose, or their mode of administering justice 
 185 could reach the evil ; and also to enforce remedies 
 
 attempted to be given by those courts when their 
 effect is so defeated. 
 
 Thus where an instrument on which a title is 
 founded, as a bond, is lost, a court of equity will 
 interfere to supply the defect occasioned by the ac- 
 cident, and will give the same remedy which a 
 court of common law would have given if the ac- 
 cident had not happened (r) (1). If an instru- 
 
 (r) 1 Ca. in Cha. 11; 1 Eq. Ca. Company v. Boddam, 9 Vea. 464; 
 
 Ab. 92 ; 1 Atk. 287 ; Anon. 2 Atk. Seagrave v. Seagrave, 13 Ves. 439 ; 
 
 61 ; Anon. 3 Atk. 17 ; 1 Ves. 344; Smith v. Bicknell, 3 Ves. & B. 51j n. 
 
 5 Ves. 238 ; 7 Ves. 19 ; East India Stokoe v. Rohson, 3 Ves. &.. B. 51. 
 
 (1) [See the form of a bill for relief where a bond is lost, Willis, 13. 
 A bill will lie by the last endorsee of a lost bill of exchange to recover 
 the amount from the acceptor; and prior endorsees need not be made 
 parties to the suit. Macartney v . Graham, 2 Sim. 28; and see Davies 
 V. Dodd, 4 Price, 176.) So the court has jurisdiction of bill to recover 
 against endorsers of a lost note. The foundation of chancery juris- 
 diction in such cases, is, it seems, the power to compel indemnity. In- 
 demnity against the re-appearance of the note must be offered in the 
 bill, and forms part of the decree. It need not be tendered before bill 
 filed. Affidavit of the loss accompanies the bill. Smith et al. v. 
 Walker et al., 1 Smed;>s & Marshall (Miss.) Ch. R. 43 J; see Soaks' 
 Administrator v. Friend's Administrator,^ Ohio R. 78. 
 
 If bill founded on loss of deed or instrument be not sustained by affida- 
 vit, it is demurrable. If party failed to demur, but answer over to the 
 bill, or allowed it to be taken as confessed, it seems the absence of the 
 affidavit is not sufficient for reversal of the decree. Findley et al. v. 
 Hinde and wife, 1 Peters 244. 
 
 See the reasons why an affidavit is required in England or in equity 
 courts of general jurisdiction ; and why the rule does not apply in 
 Massachusetts. Campbell v. Sheldon, 13 Pick. R. 19, 20, 8.
 
 S. II. p. I.] DEMURRERS. 135 
 
 merit has been destroyed, or is fraudulently sup- i"tro7eT°8up'^°* 
 pressed, or withheld from the party claiming under ^mT '*"^^' 
 it, courts of equity will also give relief (s) (1) ; 
 as they will generally lend their aid whenever by 
 fraud or accident a person is prevented from effec- 
 tually asserting in the courts of ordinary jurisdic- 
 tion rights founded on principles acknowledged by 
 those courts (2). 
 
 In some instances courts of law have acted on 
 the supposed destruction or suppression of an in- [114] 
 strument, where formerly those courts conceived 
 they could not act for want of the instrument, es- 
 pecially in the particular mode of proceeding. 
 Thus in the case* of a supposed suppression or 
 destruction of a lease for lives under a [)ower in a 
 settlement, the supposed lessee was permitted to 136 
 
 obtain on parol testimony a verdict and judgment 
 in ejectment, upon a feigned demise, the form of 
 the proceeding not requiring the lease in question 
 to be in any manner stated in the pleadings, so that 
 it could not appear upon the record under what 
 title the recovery was had, or what specific lands 
 were in the supposed lease, what were the lives 
 for which it was granted, what the rent reserved, 
 or what covenants bound either party; or whether 
 the lease was or was not according to the powers 
 
 (.s) See Lord Hunsdon's case, lioh. Wms. 720; Atkins v. Farr, 1 Atk. 
 
 109 ; Eyton v. Eyton, 2 Vern. 380 ; 287 ; Tucker v. Phipps,3 Atk. 359 ; 
 
 Sanson v. Rumsey, 2 Vern. 561 ; 1 Ves. 392 ; Saltern v. Melhuish, 
 
 Dalston V. Coatsworth, 1 P. Wms. Ambl. 249 ; Bowles v. Stewart, 1 
 
 731 ; Coteper v. Earl Cowper, 2 P. Sch. & Lefr. 209. 
 
 (1) [See the form of a bill where an instrument has been fraudu- 
 lently witliheld from tlie party claiming it. Willis, 27.] 
 
 (2) See note to p. 132.
 
 136 DEMURRERS. [ChaP. IL 
 
 under which it was alleged to have been made. 
 The consequence necessarily was a suit in equity 
 to have all those facts ascertained, and to restrain 
 the execution of the judgment in ejectment in the 
 mean time (1). 
 waste, In restraining waste (1), by persons having limi- 
 
 ted interests in property, the courts of equity have 
 generally proceeded on the ground of the common- 
 law rights of the parties, and the difficulty of obtain- 
 ing immediate preservation of property from de- 
 struction or irreparable injury by the process of the 
 common law {t) but upon this subjectthe jurisdic- 
 tion has been extended to cases in which the reme- 
 [115] dies provided in those courts could not be made to 
 apply (u). 
 
 137 Where an act of parliament has expressly given 
 
 (t) See Field v. Jackson, Dick, ble, see 19 Ves. 151, 155 ; and as to 
 
 599; Davis v. Leo, 6 Ves. 784; those where the injury is not acknow- 
 
 Smith V. Collyer, 8 Ves. 89 ; 9 Ves. ledged at law, which are cases of 
 
 356; 19 Ves. 154. (2) equitable waste, see Chamherly ne v. 
 
 (u) As to the instances where the Dtimmer, 1 Bro. C. C. 166; S. C. 
 
 title is legal, and the courts of law Dick. 600 ; Marquis of Downshire 
 
 admit the existence' of an injury, but v. Sandys, 6 Ves. 107; Lord Tam- 
 
 do not afford a remedy, see 2 Freem. worth, v. Lord Ferrers, 6 Ves. 419 ; 
 
 54; Perrot v. Perrot, 3 Atk. 94; 3 T/illiams v. M'Namara, 8 Ves. 70; 
 
 Atk. 210 ; Farrant v. Lovell, 3 Atk. Barges v. Lamb, 16 Ves. 174 ; Day 
 
 723 ; 3 Atk. 755, 756 ; MoUineux v. v. Merry, 16 Ves. 375 ; Marchioness. 
 
 Powell, 3 P. Wms. 268, n. ; 3 Bro. of Ormonde v. Kynersley, 5 Madd. 
 
 C. C. 544; Onslow V. , 16 Ves. 369; Lu^^hington v. Boldero, 6 
 
 163; Pratt v. Brett, 2 Madd. R. 62; Madd. 149 ; Coffin v. Coffin, 1 Jac. 
 
 Brydges v. Stephens, 6 Madd. 279 ; R. 70 (3). 
 ae to those where the title is equita- 
 
 (1) See note to p. 132. 
 
 [See the form of a bill to restrain waste by persons having limited 
 interests in property. Willis, 39; Equity Draft. 458. (2d edit.) 
 
 (2) [Brashear v. Macey, 3 J. J. Marshall's R. 93. This bill is the 
 only remedy which a complainant has, when he is entitled to a con- 
 tingent interest which may never vest. lb. ; and see note (u) above.} 
 
 (3) [See the cases on waste amplified in Jeremy's Eq. Jur. 327.]
 
 S. II. p. I.] DEMURRERS. 137 
 
 a right, the courts of ordinary jurisdiction have 
 been found incompetent to give, in all cases, a full 
 and complete remedy, and the courts of equity 
 have therefore interposed (1). Thus in the case j,-;^oi-ent debt- 
 of a person who had been discharged under an 
 act for relief of insolvent debtors, by which his fu- 
 ture effects were made liable to the demand of his 
 creditors, but his person was protected ; the court 
 of chancery, exercising its extraordinary jurisdic- 
 tion, enforced a judgment of a court of common 
 law against his effects, which were so circum- 
 stanced as not to be liable to execution at the 
 common law. (.c) (2). 
 
 (x) Edgell V. Haywood, 3 Atk. 352. See 1 Jac. & W. 371. (3) 
 
 (1) See note to p. 132. 
 
 (2) See the form - f a bill, Willis, 45.] 
 
 (3j [2 K. S. 173; Williams v. Brotvu, 4 J. C. R. 687; BrivkerlioJjT 
 V. Broun, lb. b71 ; Hidden v. Spader, on appeal, -20 .1. R. 554 ; S. C, 
 6 J. C. R. 280 : WDerrnuti v. Strong, 4 J. C. 687; Beck v Burden, 
 i Pair's C. R. 306; Candler v. Pei.ii, lb. 168; Edmeslon v. Lijde, lb. 
 637; Slillwdl v. Vtn Eps, Fb. 615; Eiger v. Price, 2 ib. 334; U. 8. 
 V. Slurges, 1 Paine's C. C. R. 525 ; M' Elwain v. Willis, on appeal. 
 9 Wendell's R. 54S ; Le Hoy v. lingers, 3 Paige's C. R. 234; Prac- 
 tice in Ohio Chancery, Ads of 1831, vol. 29, p. 84, ^ 16. A judg- 
 ment in the court of the United States is not sufficient to ground a 
 bill for reaching property of a debtor not subject to execution. It 
 stands upon no other ground than tho judgments of courts of sister 
 stales. Tarbell v. Griggs, 3 Paige's C. R. 207. A creditor's bill 
 cannot be filed until after the return day of the execution is gone by; 
 and its issuing and return must be set forth. Cassidy v. Meacham, 3 
 Pai;:e's C. K. 311. Creditors by judgment and decree may join in such 
 a bill. Clarksonv. De Peyslr, Ib. 320. An omission of the averments 
 required in a creditir's bill, by the 189ih ruleof the court of chancery of 
 the State of New-York, is good ground of demurrer. M^Elwain v. 
 Willis, lb. 505. 
 
 Pvery species of property belonging to a debtor may be reached and 
 applied to the satisfaction of his debts. Edmeslon v. Lyde, lb. 637.
 
 137 DEMURRERS. [ClIAP. 11. 
 
 Where parties by contract have given a right, 
 but have not provided a sufficient remedy, the 
 
 rent, courts of equity have also interfered (1). Thus 
 
 where a rent was settled upon a woman by way 
 
 [116] of jointure, but she had no power of distress, pr 
 
 The judgment is prima facie evidence against the debtor or mere 
 strangers. Garland v. Rives, 4 Randolph's R. 282.] 
 
 Independent of statute in New-York, the court of Errors in HadJen 
 V. Spader, 20 Johns R. held that a judgment creditor whose execution 
 was returned unsatisfied, might come into chancery to reach an in- 
 terest of debtor in property which could not be sold under execution 
 at law. Farnham v. Campbell, 10 Paige R. 601, 598. And the object 
 of that statute was to establish and declare the great principle decided 
 in that case. Gleason v. Gage, 1 Id. 123. 
 
 The bill may be filed on execution unsatisfied, although complainant 
 has brought a suit on that judgment and recovered a new judgment 
 thereon in another state. Bates v. Lyons, 7 Paige's R. 85, 86; contra, 
 Mitchell v. Biince, 2 Id. 606, overruled. The opinion that the second 
 extinguished or merged the first judgment, as intimated in Mitchell v. 
 Bunce, was wrong. 
 
 If the judgment on which execution is unsatisfied is assigned, the 
 assignee may file the bill, without taking out new execution. He need 
 not state in the bill the particulars of the consideration of the assign- 
 ment which, being under seal, imports consideration. Gleason v. 
 Gage, 7 Paige's R. 123-4, 121; contra, Wakeman v. Russell, 1 Edw. 
 C. R. 509, which was a misapprehension of the statute on creditors' 
 bills. 
 
 When an insolvent debtor assigns his property to de'raud his credi- 
 tor, or fraudulently releases a debt, a judgment creditor who has ex- 
 hausted his remedy at law, may, notwithstanding such voluntary 
 assignment file his bill to reach the property in the hands of the frau- 
 dulent vendee or recover the debt so released. And the voluntary as- 
 signee of tlie insolvent debtor, acquired no right to recover the debt 
 which had been so fraudulently assigned. Brownell v. Curtis, 10 
 Paige's R. 218, 219, 217, 210, 211 : contra, Bayard v. Hoffman, 4 Johns. 
 -C. R. 450, in which case it is supposed that the chancellor overlooked 
 the distinction between a voluntary assignment by the fraudulent 
 grantor and one by operation of law under the bankrupt acts. 
 
 In New- York by the code of procedure, a judgment creditor has now 
 •a simpler method of reaching his debtor's property, than by filing a 
 sbill, after execution returned .unsatisfied. Code \ 247, et seq. 
 
 (1) See note top. 132.
 
 S. IT. P. I.] DEMURRERS. 137 
 
 Other remedy at law, the payment, according to the 
 intent of the conveyance, was decreed in equi- 
 ty {if). So where parties, meaning to create a l^mS!"' 
 perfect title, have used an imperfect instrument, * 138 
 as a feoffment without livery of seisin (z) (1), a 
 bargain and sale without enrolment (a) ; a surren- 
 der of copyhold not presented according to the 
 custom" of the manor (h) ; courts of equity have 
 considered the imperfect instrument as evidence 
 of a contract for making a perfect instrument, and 
 have remedied the defect even against judgment 
 creditors (c) who had gained a lien in the land in 
 question, though when the consideration has been 
 inadequate, relief has not been extended so far {d). 
 Where the legislature has declared that an instru- 
 ment wanting in a particular form should be null 
 and void to all intents and purposes, and it was 
 manifestly the design of the legislature that those 
 words should operate to the fullest extent, relief 
 has been refused. Thus a bill of sale of a ship 
 wanting a formality required by the Register Act 
 was not made good in equity against assignees of 
 the vendor become bankrupt {e). 
 
 Relief has also been s^iven where a remedy at law [H ' J 
 
 ^ '' confusion of 
 
 was originally provided, but by subsequent accident boundaries, 
 
 {y) Plunket v. Brereton, 1 Ch. {c) See IP. Wms. 279. 
 
 Rep. 5 ; and see Duke of Leeds v. {d) Finch v. Earl of Winchelsea, 
 
 Powell, 1 Ves. 171. 1 P. Wms. 277, 28.3. 
 
 {z) Burgh V. Francis, cited 1 P. (c) Hihbert v. Rolleston, 3 Bro. 
 
 Wms. 279; Burgh \. Burgh, Rep. t. C. C. 571; 6 Ves. 745; Spcldt v. 
 
 Find), 28. Lechmere, 13 Ves. 588 ; Thompson 
 
 (a) 6 Ves. 745. v. Leake, 1 Madd. R. 31). 
 
 (6) Taylor v.Whecler, 2 Vern. 5G4. 
 
 (1) [See the form of a bill to remedy a defective deed, Willis 55.j
 
 138 DEMURRERS. [ChAP. II. 
 
 could not be enforced; as where by confusion of 
 boundaries of lands, remedy by distress for rent was 
 defeated (/) (1). So if the remedy afforded by the 
 
 139 ordinary courts is incomplete, a court of equity will 
 lend its aid to give a complete remedy (g) (1). 
 
 chattels of pecu- tt i- i i*ii i-^^i/* 
 
 uar value, Upon this grouud a bill was admitted tor recovery 
 of an ancient silver altar claimed by the plaintiff as 
 treasure trove within his manor : for though he 
 miffht have recovered at law the value in an action 
 of trover, or the thing itself, if it could be found, in 
 an action of detinue^yet as the defendant might 
 deface it, and thereby depreciate the value, it was 
 determined that the defect of the law in that par- 
 ticular ought to be supplied in equity (/«). And 
 . where an estate was held by a horn, and a bill was 
 brought by the owner of the estate to have the honi 
 delivered to him, a demurrer was overruled (J). 
 
 deeds and wri- XJpou thc samc principle (k) the jurisdiction of the 
 
 court is supported in the very common case of a bill for 
 
 delivery of deeds or writings (/) (1), suggesting thrt 
 
 [118] they are in the custody or power of the defendant; 
 
 though in early times it seems to have been consi- 
 
 (/) 1 Ves. 172. See North v. Read, 3 Ves. 71 ; Lowther v. [jord 
 
 Earl and Countess of Sirafford, 3 Lowther, 13 Ves. 95. 
 
 p. Wins. 148 ; Bouverie v. Prentice, (i) Pusey v. Pusey, 1 Vern. 273 ; 
 
 1 Bro. C. C. 200, and Duke of Leeds and see Earl of Micclesjield v. Da- 
 
 V. Corporation of New Radnor, 2 vis, 3 Ves. &. Bea. 16. 
 
 Bro. C. C. 338; S. C. ib. 518, and C^-) See 2 Atk. 3U6. 
 
 the cases there cited. (/) The court of chancery has long 
 
 {g) See 9 Ves. 33. exercised its extraordinary jurisdic- 
 
 (A) Duke of Somerset V. Coolson, tion in this case See 9 Edvv. IV. 
 
 3 P. Wms. 390; and see Fells v. 41 B. and Stat. 32 Hen. VIII. c. 36. 
 
 (1) See note to p. 132. 
 
 [See the form of a bill in such a case, Willis 69.]
 
 S. II. p. I.] DEMURRERS. 140 
 
 dered that the jurisdiction did not extend to cases 
 where an action of detinue would he (m). 
 
 In the case of contracts or agreements this prin- C^cer' 
 ciple is carried to the extent (1). Tlie principles by 
 which the courts of common law direct their deci- 
 sions on the subject acknowledge the mutual right 
 of the contracting parties to specific performance of 
 the agreements they have made ; but the mode of 
 proceeding in those courts enables them only to 
 attempt to compel performance by giving damages 
 for non-performance. Here therefore the courts of 
 equity interfere to give that remedy which the ordi- 
 nary courts w^ould give if their mode of administer- 
 ing justice would reach the evil, by decreeing, ac- 
 cording to the principles of the common law as well 
 as of natural justice, specific performance of the 
 agreement (/i) (2). This however extends only to 
 contracts of which a specific performance is essen- 
 tial to justice (/y); for if damages for non-perfor- [119] 
 mance are all that justice requires, as in the case of 
 
 8. 9: and see on tliis subject Brown no action would lie at the comnfion 
 
 V. Brown, Dick. 62; 1 Madd. R., law for non -performance ; and on 
 
 192 ; Crow v. Tyrrell, 3 Madd. 179 ; this head great complaints have been 
 
 Knye V. Moore, 1 Sim. & Stu. 61 ; made, the justice of which it ia be- 
 
 Balch V. Symes, 1 Turn. 87. yond tl>e purpose of this treatise to 
 
 (m) 9 Edw. IV. 41 B. ; see also coivsider. See 1 Foubl. Treat, of Eq. 
 
 39 Hen. VI. 26; Brooke Prter. 45; 151, n. (c),and 2 Sch. &. Lefr. 347, 
 
 which seems to have been in effect a and Williams v. Steward, 3 Meriv. 
 
 bill for discovery and account. 472. As to tlie propriety of extend- 
 
 (n) 13 Ves. 76, 228; 2 Sch. & ing- the applicatiou of the doctrine of 
 
 Lefr. 556; 1 Jac & W. 370. The part performance, see 3 Ves. 712, 713 ; 
 
 courts of equity decree performance 6 Ves. 32, 37 ; 2 Sch. Sl Lefr. 5. 
 of agreement in many cases where (o) See 3 Bro. C. C. 543 ; 8 Ves. 
 
 (1) See note to p. 132. 
 
 (2) [See bills to compel the specific performance of an agreement, 
 Willis, 83 ; Equity Draft. 9, 11, et. seq.]
 
 140 DEMURRERS. [ChAP. IL 
 
 a contract for stock in the public funds, a court of 
 
 141 equity will not interfere {p). In other cases where 
 compelling a specific act is the only complete remedy 
 for an injury, and the ordinary courts can attempt to 
 give this remedy only by giving damages, the courts of 
 equity will interfere to give the specific remedy, 
 especially if the right has been established by the 
 determination of the ordinary courts (jf). 
 
 In some cases, as in matters of account (^) (2)^ 
 
 163 ; 2 Sch. & Lefr. 347. (1) 1, 244; S. C. 1 Wils. Ch. R. 4G0; 
 
 {p) Cud V. Rutter, 1 P. Wms. Walker v. Barnes, 3 Madd. 247; 
 
 570 ; 10 Ves. 161 ; 13 Ves. 37. Hudson v. Bartram, 3 Madd. 440 ; 
 
 {q) It is difficult to reconcile all Franklyn v. Tuton, 5 Madd. 469 ; 
 
 the cases in which the courts of Dawson v. Ellis, 1 Jac. & W. 524 ; 
 
 equity have compelled the perform- Baxter v. Conollij, 1 Jac. & W. 576, 
 
 ance of agreements, or refused to do Martin v. Mitchell, 2 Jac. & W. 
 
 so, with each other; and in some 413; Beaumont v. Dukes, 1 Jac. R. 
 
 cases -where performance has been 422; Gordon v. Smart, 1 Sim. &, 
 
 decreed, it is difficult to reconcile the Stu. 66 ; Bryson v. Whitehead, 1 
 
 decisions with the principles of equal Sim. & Stu. 74; Doloret v. Roths- 
 
 jiistice. The cases and their varie- child, 1 Sim. &. Stu. 590 ; Lingenv. 
 
 ties are numerous, and have been Snn^son, 1 Sim. & Stu. 600 ; /I o^a?- v. 
 
 ably collected in 1 Fonbl. Treat, of Maclew,l Sim. & Stu. 418 ; Hasker 
 
 Equity. Of the later cases on the v. Sutton, 2 Sim. & Stu. 513; Le- 
 
 subject, see Morphett v. Jones, 1 win v. Guest, 1 Russ. R. 325 ; Att- 
 
 Swanst. 172; S. C. 1 Wils. Ch. R. woodv. , 1 Russ. R. 353. 
 
 100; Garrard v.Grinling, 2 Swenist. (r) See 2 Ves. 388 ; Corporation 
 
 (1) [Cathcart v. Robinson, 5 Peters, 264. In Hepburn v. Dunlap, 
 1 Wheat. 179, it is said, that, generally speaking, a court of law is 
 competent to afford an adequate remedy to either party to a breach of 
 contract, from whatever cause it may have proceeded ; and th^t when- 
 ever this is the case, a resort to a court of equity is improper.] 
 
 So, after considerable lapse of time, unless upon very special cir- 
 cumstances. Even where time is not of the essence of the contract, 
 courts of equity will not interfere, where there have been long delay 
 and latches, on the part of the party seeking a specific performance. 
 And especially, will they not, where there have been a great change 
 of circumstances, and new interests intervened. Holt v. Rogers, 8 
 Peters, 433, 420, 
 
 (2) See note to p. 132. [Hawley v. Cramer, 4 J. C. R. 717.]
 
 B, II. P. I.] DEMURRERS. 141 
 
 partition of estates between tenants in common (s), ^on?Md Isl^- 
 and assignment of dower {t) (2), a court of equity ™Tx2()T*' 
 will entertain jurisdiction of a suit, though a remedy 142 
 
 might perhaps be had in the courts of common 
 law (3), The ground upon which the courts of 
 equity first interfered in these cases seems to have 
 been the difficulty of proceeding to the full extent of 
 justice in the courts of common law (ti). Thus 
 though accounts may be taken before auditors in an 
 action of account in the courts of common law, yet 
 a court of equity by its mode of proceeding is en- 
 abled to investigate more effectually long and intri- 
 cate accounts in an adverse way, and to compel 
 payment of the balance whichever way it turns (4). 
 
 of Carlisle v. Wilson, 13 Ves. 276 C. C. 620; 2 Ves. Jr. 129; 17 Ves. 
 
 1 Sch. & Lefr. 309. 552. [Powell v. The Monson and 
 
 (s) See 2 Freem. 26 ; 2 Ves. J. Brimfield Manufacturing Co., 3 
 
 570 ; Turner v. Morgan, 8 Ves. 143 ; Mason, 378.] 
 
 17 Ves. 552; IVes. &B.555; Mil- (u) 2 Ves. 388; 13 Ves. 279. 
 
 lev V. Warmington, 1 Jac. & W. Perhaps in some of these cases the 
 
 484 (1). • jurisdiction was first assumed to pre- 
 
 (t) See Curtis v. Curtis, 2 Bro. vent multiplicity of suits. 
 
 (1) [Jeremy's Eq. Juris. 303. Equity has concurrent power in par- 
 tition. Farmers v. Respass, 5 Munroe, 564; Wisely v. Findlay, 3 
 Randolph, 361 ; 2 Revised Statutes N. Y. 329 to 332 ; Harwood v. 
 Kirbyri Paige's C. R. 469 ; Jenkins v. Van Schaick, 3 lb. 242. Chan- 
 cery is the proper tribunal for tenants in common of personal estate : 
 for they can have no partition of it at common law. Smith v. Smith, 
 4 Randolph's (Virginia) R. 95. Partition suits in the court of chan- 
 cery of the State of New-York mny be commenced by bill or partition. 
 Larkin v. Mann, 2 Paige's C. R. 27. For a slight history of the 
 English and New- York Statutes relating to partition, see Gallalian v. 
 Cunningham, 8 Cowen's R. 362.] 
 
 (2) [See the form of a bill for dower. Willis, 110; Equity Draft. 
 212, (2d edit.)] 
 
 (3) {Moses V. Loicis, 12 Price, 509.] 
 
 (4) A bill for an account is not demurrable merely because the plain- Oraission of an 
 tiff does not offer to account at all, or does not offer to account for as "fler to account. 
 
 14
 
 142 DEMURRERS. [ClIAP. IL 
 
 In the case of partition of an estate (1), if the 
 titles of the parties are in any degree compHcated, 
 the difficulties which have occurred in proceeding at 
 the common law have led to applications to courts 
 of equity for partitions, which are effected by first 
 ascertaining the rights of the several persons inte- 
 ^^'^ rested, and then issuing a commiision to make the 
 
 partition required, and upon return of the commis- 
 sion, and confirmation of that return by the court, the 
 partition is finally completed by mutual conveyances 
 of the allotments made to the several parties (x). 
 But if the infancy of any of the parties, or other 
 circumstances, prevent such mutual conveyances, 
 the decree can only extend to make the partition, 
 [121] give possession, and order enjoyment accordingly 
 
 (x) Cartwright v.Pultney,2 Atk. 380; 2 Sch. & Lefr. 372; 1 Jac. & 
 W. 493. (1) 
 
 much as he ought to account for; for he may be made to account to 
 the full extent of what is just, -although he does not even admit him- 
 self to be an accounting party. Clark v. Tipping, 4 Beav, 588. 
 Offer in a bill for If a bill is filed for an account of the rents and profits received by 
 
 an acconnt of ^i . /• ■. i_ • f -^ i_ • • 
 
 rents received '"^ grantee 01 an annuity, who, in consequence ot its bemg in arrear, 
 
 by an annuitant, jg ]jj posfesslon of the premises demised to secure the annuity, the bill 
 
 must contain an offer either to redeem on the terms of the annuity 
 
 deed, or to ri^-purchase up n equitable terms to be settled, by the court. 
 
 Knebell v. White, 2 Y. & C. Eq. Ex. 15. 
 
 (1) See note to p. 132. 
 
 (2) [See Warfield v. Gamhrill, 1 Gill & Johns. 503. If the title 
 of the complainant in a particular suit is denied or it depends upon 
 doubtful facts or questions of law, a court of equity will either dismiss 
 the bill or retain it until the right is decided at law. Sfranghan v. 
 Wright, 4 Randolph's (Virginia) R. 493 ; iS. P. in cases of dower, 
 Wells V. Beall, 2 Gill & Johns. 468 ; Wilkin v. Wilkin, 1 J. C. R. 
 Ill ; Phelps V. Green, 3 lb. 302; Cox v. S7nilh, 4 lb. 271. A mere 
 reversioner without the concurrence of all the owners, cannot have a 
 partition. Striker v. Mott, 2 Paige's C. It. 387.]
 
 S. II. p. I.] DEMURRERS. 143 
 
 until effectual conveyances can be made (1). If the 
 defect arise from infancy, the infant must have a 
 day to show cause against the decree after attaining 
 twenty-one ; and if no cause should be shown, or 
 cause shown should not be allowed, the decree may 
 then be extended to compel mutual conveyances {if). 
 If a contingent remainder, not capable of being 
 barred or destroyed, should have been limited to a 
 person not in being, the conveyance must be delayed 
 until such person shall come into being, or until the 
 contingency shall be determined ; in eitherof which 
 cases a supplemental bill will be necessary to carry 
 the decree into execution. An executory devise 
 may occasion a similar embarrassment {%). 
 
 In the case of dower (3) the widow is often much 
 embarrassed in proceeding upon a writ of dower at 
 the common law, to discover the titles of her de- 
 ceased husband to the estates out of which she 144 
 claims her dower, to ascertain their comparative 
 value, and obtain a fair assignment of a third. How 
 far the courts of equity will assist a widow in the 
 assignment of dower has been at different times a 
 subject of much question ; but the result of various 
 decisions seems to have settled, that where there is 
 no ground of equity, as a purchase for valuable con- 
 sideration (a), to prevent their interference, the 
 courts will proceed to set out dower; though if the 
 
 (y) See Ait. Gen. v. Hamilton, 1 G Ves. 498. (2) 
 Madd. R. 214. (a) Williams v. Kamhe, 3 Bro. C. 
 
 (2) See the case of Wills v. Slade, C. 264. 
 
 (1) [And see Sears v. Hijer, 1 Paige's C. R. 483.] 
 
 (2) Also, Striker v. Molt, 2 Paige's C. R. 3?i7; Cheesemm v. Thome, 
 1 Edwards' V. C. R. 629. 
 
 (3) See note to p. 132.
 
 144 DEMURRERS. [ChAP. II. 
 
 [122] title to dower be disputed, it must be first established 
 at law (/>). 
 
 In all these cases the courts of equity will lend 
 their aid ; but they have generally considered them- 
 selves in so doing as proceeding merely on rights 
 which may be asserted in a court of common law, 
 and therefore in the two cases of partition, and 
 assignment of dower, as no costs can be given in 
 a court of common law upon a writ of partition or 
 a writ of dower, no costs have been commonly given 
 in a court of equity upon bills brought for the same 
 
 145 purposes (c); and as arrears of dower can be reco- 
 vered at common law only from demand, the same 
 rule was adopted in the courts of equity, unless par- 
 ticular circumstances had occurred to warrant a de- 
 parture from the course of the common law, found- 
 
 [1231 ®^ ^" the terms of a statute {d). The courts of 
 
 (J) Curtis V. Curtis, 2 Bro. C. C Curtis, 15 May, 1778 ; finally re- 
 
 620; Mundy V. Mundy, 2 Ves. Jr. ported in 2 Bro. C. C. 620. See also 
 
 122. The last case was upon a de- the case of D'Arcy v. Blake, 2 Sch. 
 
 murrer, which after much consider- & Lefr. 387. 
 
 atiou was overruled. Lord Talbot (c) Lucas v. Calcraft, Dick. 594. 
 
 had overruled a demurrer under With respect to costs in cases of 
 
 similar circumstances in Moor v. partition, see Calmady v. Calmady. 
 
 Blake, 26 July, 1735, reported Ca. 2 Ves. Jr. 568 ; Agar v. Fairfax, 17 
 
 Temp. Talb. 126, by the name of Ves. 533; 1 Ves. & Bea. 554; (1) 
 
 Moore and Black. And a like decision and in cases of dower, see Lucas v. 
 
 was made in Meggott v. Meggott, Calcraft, 1 Bro. C. C. 134, and S. C. 
 
 in Cha. 15 Oct. 1743. But in Read 1 Ves. &, Bea. 20, note ; 2 Ves. 128 ; 
 
 V. Read, 15 Dec. 1744, the court re- Worgan. v. Ryder, 1 Ves. & Bea. 
 
 tained the bill, and ordered the deeds 20 (2). 
 
 to be produced, with liberty to the {d) lathe case o? Curtis v. Curtis, 
 
 plaintiff to bring a writ of dower, 2 Bro. C. C. 620, this rule was not 
 
 which was also done in Curtis v. observed. 
 
 (1) [2 Revised Statutes of N. Y. 327, J 62 ; lb. 329, J 79; Phelps 
 V. Green, 3 J. C. R. 302 ; Matter of Heniiup, 3 Paige's C. R 305.] 
 
 (2 [Willis' Eq. PI. 110, note (a) ; Tahele v. Tabele, 1 J. C. R. 45 ; 
 Hazen v. Thurbur, 4 lb. 604; Russell v. Austin, 1 Paige's C. R. 192; 
 Johnson v. 'Ihomas, 2 lb. 377.]
 
 S. II. p. I.] DEMURRERS. 145 
 
 equity having gone the length of assuming 
 jurisdiction in a variety of compUcated cases of 
 account, of partition, and of assignment of dower, 
 seem by degrees to have been considered as having 
 on these subjects a concurrent jurisdiction (/I) with 
 the courts of common law in cases where no diffi- 
 culty would have attended the proceedings in those 
 courts. 
 
 But except in these instances, and in some cases fo^°ri^di^^on^ 
 noticed in a subsequent page, the courts of equity 
 will not assume jurisdiction where the powers of 
 the ordinary courts are sufficient for the purposes 
 of justice ; and therefore, in general, where a plaintiff 
 can have as effectual and complete remedy in a 
 court of law as in a court of equity, and that remedy 
 is clear and certain (e), a demurrer, which is in 
 truth a demurrer to the jurisdiction of the court, 146 
 
 will hold (/) (2), 
 
 (J) 13 Ves. 279 ; 1 Sch & Lefr. all right to decide upon the validity 
 
 309 ; 1 Ves. & Bea. 555. of wills, whether of real or of per- 
 
 (e) Parry v. Owen, 3 Atk. 740 ; sonal estate, a demurrer to a bill, 
 
 Ghettoff V. Land. Assur. Comp. 4 whereby such a determination is 
 
 Bro. P. C. 436, Toml. Ed. ; 1 Eq. Ca. sought, will hold. See Jones v. 
 
 Ab. 131 ; Bensley v. Burdon, 9 Sim. Jones, 3 Meriv. 161 ; Jones \. Frost, 
 
 & Stu. 519. 3 Madd. 1; S.C.I Jac. R. 466 (1). 
 
 (/) As courts of equity disclaim 
 
 (1) [Segrave V. Kirwan, 1 Beatty'sR. 163. The duty of chancery 
 is merely to construe the elfect of a will. lb. It is not competent for 
 a court of chancery to i-et aside a will or codicil as to real estate on 
 tlie ground of fmud or incompetency of the testator. The question 
 should be determined in a court of law on an issue from chancery of 
 devisavit vel nan. It is otherwise as to a will of personal estate. Ro- 
 gersv. Rogers, on appeal, 3 Wendell's R. 503 ; and see Cullon v. Ross, 
 2 Paige's C. R. 369, where it is said, that the court of chancery has 
 no oriijinal jurisdiction to try the validity of wills of personal estate. 
 The jurisdiction of the court existing only in case of an appeal from 
 the decision of the surrogate. 
 
 The court of chancery of the state of New-York is authorized to 
 take proof of wills lost. 2 R. S. 67.] 
 
 (2) See Smith's Manual of Equity Jurisprudence, Introd. sec. 1.
 
 146 DEMURRERS. [ChAP. II. 
 
 Sy^in^Bu'lfport If an accident is made a gronnd to give juris- 
 
 of a bir 
 on a lo 
 Mient, 
 
 on^a lost'^nstru- diction to the court in a matter otherwise clearly 
 
 cognizable in a court of common law, as the loss 
 
 [A demurrer to a bill for cause that the complainant has a leual re- 
 medy, will not be entertained, unless that remedy appears clear and 
 not doubtful or difficult. O'lirien v. Irwin, l^'dg. Lap. & Scho. 361 ; 
 and see Reed v. Bank of Newburgh, 1 Paige, 215. 
 
 Legal rights are to be asserted by legal means; and in such cases, 
 courts of equity never lend their aid when equity and justice do not 
 imperiously demand it. Bo^ley v. M^Kinn, 7 Harris & Johns. R. 160. 
 Although chancery will not reverse a judgment at law, nor decide 
 over again a point decided by a court of law, yet it will hear the same 
 subject of controversy, upon grounds not litigated in the court of law, 
 either for want of legal testimony, (which, in chancery, may be sup- 
 plied by the oath of the party,) or because it was a subject of equity 
 jurisdiction and not admissible at law, or perhaps for other causes > 
 and perpetually enjoin a judgmei.t. And this too, although the grounds, 
 at the time of an injunction, may be considered cognizable at law, if 
 if they were not so considered when the judgment was rendered and 
 the bill brought. Dana v. Nelson, 1 Aiken's (Vermont) R. 252. Af- 
 ter a cause has been fully heard and decided at law, there can be no 
 relief in equity. Terrel v. Dick, 1 Ca'l's (Virginia) R. 191 ; and see 
 Moses V. Lewis, 12 Price's R. 502. Not even though the judge may 
 have misapprehended the law. Brickell v. Jones, 2 Hayward's (North 
 Carolina) R. 367 ; Marine Ins. Co. of Alexandria v. Hodgson, 7 
 Cranch, 332. 
 
 It seems, that relief will be given against a mistake of the attorney 
 in pleading a plea which dues not cover the defence. MNeish v. 
 Stewart, 7 Cowen's (New- York) R. 474. But, query this — see Gra- 
 ham V. Siagg, 2 Paige's C. R. 321. 
 
 A party who had a judgment against him at law, without having 
 had notice of the proceeding which led to it, reimbursed upon his hav- 
 ing been compelled to pay too much. Taylor v. Wood^s executors, 2 
 Hayw. 332. Excessive damages at law are no grounds, in an ordinary 
 case, for relief in equity. Reed v. Clark, 4 Monroe's (Kentucky) R. 
 19. The neglecting a defence at law, gives the party no right in 
 equity. Drewry v. Barnes, 3 Russ. 94 ; More v. Bagley, 1 Breese's 
 (Illinois) R. 60; Beaugenonv. Turcotte, lb. 126; Hubbard v. Hobson, 
 lb. 147; Greenup v. Brown, lb. 193; Loud v. Sergeant, 1 Edwards' 
 V. C. R. 164. 
 
 Where a cause has been argued in a court of law, on a case settled 
 and judgment rendered, chancery will not interfere to have the case
 
 S. II. p. I.] DEMURRERS. 146 
 
 or want of an instrument on which the plaintiff's title 
 
 is founded, the court will not permit a bare sugges- [124] 
 
 tion in a bill to support its jurisdiction ; but require 
 
 a degree of proof of the truth of the circumstance on 
 
 which it is sought to transfer the jurisdiction from 
 
 a court of common law to a court of equity (g), 
 
 ig) Whitchurch V. Golding, 2 P. Wms. 541 ; 3 Atk. 132. 
 
 amended and re-argued. Holmes v. Remsen, 7 J. C. R. 286. A judg- 
 ment cannot be impeached, except for fraud or accident (unmixed with 
 any fault or negligence in the complainant or his agent) ; nor can its 
 consideration be inquired into. French v. Sholwell, 6 J. C. R. 235; 
 Marine Ins. Co. of Alexandria v. Hodgson, 7 Cranch, 332. It will 
 never interfere with the judgment on the ground of irregularity. The 
 record of the judgment and execution and title under them are a con- 
 clusive bar in equity. Sholienkirk v. Wheeler, 3 J. C. R. 275. S. P. 
 De Rfiimer v. Caniillon, 4 lb. 85 ; Hau-ley v. Mancius, 7 lb. 174. 
 
 A bill cannot be filed to recover the amount of a total loss on a 
 policy of insurance on the ground that the policy had been assigned to 
 the complainants by the assured, and that the assurers refused to pay. 
 A demurrer would hold. Carter v. United Insurance Co., 1 J. C. R. 
 463.] 
 
 After defendant has answered and submitted to the jurisdiction it is 
 too late to object to the jurisdiction on ground of adequate and com- 
 plete remedy at law. If the court has jurisdiction of the subject mat- 
 ter in dispute, any other objection to the jurisdiction should be made 
 without delay and at the earliest opportunity. First Congregational 
 Society in Raynham et al. v. The Trustees of the Fund, cf-c. in Rayn- 
 ham, 23 Pickering R. Mass. 153, 148, citing Ludlow v. Simond, 2 
 Caines' Cas. 46. 
 
 An objection to the jurisdiction on ground that complainant has a 
 perfect remedy at law should be by demurrer or in tlie answer. If im- 
 proper and untrue allegations are insertpd in a bill for the purpose of 
 preventing a demurrer and to give apparent jurisdiction to a court of 
 equity, the defendant may by his answer deny these allegations and 
 insist that as to the other matters, the complainant has a remedy at 
 law, although such objection in the answer will not save the necessity 
 of a full discovery as to all the matters charged in the bill, it will at 
 the hearing bo sufficient to prevent complainant from obtaining his 
 relief. Where objection is made in answer, complainant proceeds at 
 peril of costs if objection is sustained at hearing. Fulton Bank v. 
 New- York cf- Sharon Canal Co., 4 Paige R. 131-2, 127.
 
 146 DEMURRERS. [ChAP. IL 
 
 })y an affidavit of the plaintiff annexed to and filed 
 - with the bill. Thus if a bill is brought to obtain 
 the benefit of an instrument upon which an action 
 at law would lie, alleging that it is lost, and that 
 the plaintiff cannot therefore have remedy at law, 
 an affidavit of the loss must be annexed to the bill, or 
 a demurrer will hold (/t). 
 or a bill for a So iu the case of a bill for discovery of any in- 
 
 discovery of an .,..., i 
 
 instrument. strumcut, suggcstmg that It IS m the custody or 
 power of the defendant, and praying any relief 
 which might be had at law if the instrument was 
 
 147 in the hands of the plaintiff, an affidavit must be 
 annexed to the bill that the instrument is not in his 
 custody or power, and that he knows not where it 
 is, unless it is in the hands of the defendant (2). 
 But if the relief sought extends merely to the de- 
 livery of the instrument, or is otherwise such as 
 
 (h) See Walmsley v. Child, 1 Ves. 342 ; Hook v. Dorman, 1 Sim. & 
 Stu. 227(J). 
 
 (1) As where the bill was for discovery of the contents of a lease 
 and for partition, no affidavit was annexed that complainant had not 
 the lease or counterpart in his custody or power, it was held that de- 
 fendant is bound only to look to the copy of bill served on his solicitor 
 and if it do not contain the requisite affidavit or verification to give 
 the court jurisdiction, he may demur on that ground. Lansing v. 
 Pine, 4 Paige's R. 641, 639. 
 
 [See the form of such a deinurrer, Willis, 431. And see, as to the 
 principle, Livingston v. Livingston, 4 J. C. R. 294 ; and see Laight v, 
 Morgan, on appeal, I J. C. 419; S. C. 2 C- C. E. 344; Lynch v. Wil- 
 lard, 6 J. C. R. 342, 346; and, as to the sufficiency of such an affida- 
 vit, Ls Roy v. Veeder, on appeal, 1 J. C. 417 ; S. C. 2 C. C. E. 175. 
 
 When a bill is filed for a discovery and also for. relief, the bill being 
 good for the former purpose, without affidavit, but not for the latter, it 
 will be retained as for the sound part; and the defendant ought to 
 answer the part which is good, and demur, if he thinks proper, to the- 
 other. Laight v. Morgan, 2 Caiues' Ca. 344; S. -C. 1 J. C. 429.] 
 
 (2) [Laighl V. Morgan, 1 C. C. E. 345; S. C. 1 J. C. R^ 9.]
 
 S. II. p. L] DEMURRERS. 147 
 
 can only be given in a court of equity, such an affi- 
 davit is not necessary (i). It is also unnecessary 
 in the case of a bill for discovery of a cancelled in- 
 strument, and to have another deed executed (k) ; 
 for if the plaintiff had the cancelled instrument in 
 his hands, he could make no use of it at law, and 
 indeed the relief prayed is such as a court of equi- [125] 
 ty only can give. 
 
 A suggestion that the evidence of the plaintiff's 
 demand is not in his power is essential to a bill 
 under these circumstances ; and if it is defective 
 in this point, the defendant may by demurrer al- 
 lege that there is no such charge in the bill (I). 
 
 Where a right of action at law was in a trustee, ^^^lere a tnutce 
 
 o refuses to allow 
 
 and the person beneficially entitled filed a bill for ^ZX^^Xgen 
 
 relief, suggesting a refusal by the trustee to suffer name" '" 
 
 an action to be brought in his name, a demurrer 
 
 has been allowed (m) ; and if a mere suggestion 
 
 to this effect would support a bill, the jurisdiction 
 
 in many cases might improperly be transferred 
 
 from a court of law to a court of equity. 
 
 By demurring to a bill because the plaintiflTmay 
 have remedy at law, the defendant will not be de- 
 barred of relief in equity upon another bill, if the j^4g 
 plaintiflf in the first bill should proceed at law and 
 recover (n). 
 
 (i) Whitwortk v. Guiding, Mos. (m) Ghettoff v. Land. Axuur. 
 
 192; NelB. Rep. 78; Jnon. 3 Atk. 17. Chmp. 4 Brown, P. C. 436, Toml. 
 
 (A-) King V. King, Mos. 192. Ed. And see 1 Atk. 547 (2). 
 
 ■ (/) 3 P. Wins. 395 (1). (n) Humphreys v. Humphreys, 3 
 
 P. Wms. 395. 
 
 (1) I See the form of such a demurrer, Willis, 433.] 
 
 (2) [b'ee the form of such a demurrer, Wiliii?, 434; and note (g) 
 there.]
 
 148 DEMURRERS. [ChAP. II. 
 
 Mm"o"therc^o'urt Thls objcction to a bill is not confined to cases 
 
 than a court of 'ii* a f i t/^ i 
 
 common law haa coffnizable in couits oi common law. It any other 
 
 iurisdiction. ..■,.. ., 
 
 court of ordinary jurisdiction, as an ecclesiasti- 
 cal court, court of admiralty, or court of prize, is 
 competent to decide upon the subject, a demuiTer 
 will equally hold (1) ; except that the courts of 
 equity have in the case of tithes, and in the dispo- 
 sition of the effects of persons dying testate or in- 
 [126] testate, assumed a concurrent jurisdiction with the 
 ecclesiastical courts, as far as the jurisdiction of 
 those courts extends ; and indeed the courts of 
 equity in many of these cases can give more com- 
 plete remedy than can be afforded in the ecclesi- 
 astical courts, and in some cases the only effectual 
 remedy. 
 rt!e judgment? Courts of cquity will also lend their aid to en- 
 dL^y'^'/uriadk- force the judgments of courts of ordinary jurisdic- 
 diction (2) ; and therefore a bill may be brought to 
 obtain the execution or the benefit of an elegit (o), 
 or di fieri facias {p), when defeated by a prior title, 
 either fraudulent, or not extending to the whole in- 
 terest of the debtor in the property upon which the 
 judgment is proposed to be executed. In some 
 cases, where courts of equity formerly lent their 
 
 149 aid, the legislature has by express statute provided 
 
 (0) Lewkener v. Freeman, Pr. in (/?) Smithier v. Lewis, 1 Vern. 
 Cha. 105 ; Higgins v. York Build. 399 ; Balch v. Wastall, 1 P. Wixw. 
 Comp. 2 Atk. 107 ; Stilemav v. Ash- 445. 
 
 down, 2 Atk. 608. 
 
 (1) [See the form of such a demurrer, Willis, 467; and note (a) 
 there.] 
 
 (2) See note to p. 132. Infra p. [187]. [The court' of Chancery 
 of the state of New-York may enforce contribution between owners 
 of lands subject to judgment. 2 Revised Statutes, 376.]
 
 S. II. p. I.] DEMURREUS. 149 
 
 for the relief of creditors in the courts of common 
 law ; and consequently rendered the exertion of 
 this jurisdiction in such cases unnecessary. In 
 any case to procure relief in equity, the creditor 
 must show by his bill that he has proceeded at law 
 to the extent necessary to give him a complete 
 title. Thus in the cases alkided of an elegit and 
 fieri facias he must shoWthat he has sued out the 
 writs the execution of which is avoided, or the de- 
 fendant may demur {q) ; but it is not necessaiy for 
 the plaintiff to procure returns to those writs (r). 
 
 The judgments of the ecclesiastical courts giv- [127] 
 ing civil rights will receive the same aid from a menteoftVeo- 
 
 . clesiaetical 
 
 court of equity as those of the courts of common '"''^'^^ 
 law (3) ; and therefore where a person against 
 whom there was a sentence in an ecclesiastical 
 court at the suit of his wife for alimony, intended 
 to avoid the execution of the sentence by leaving 
 the kingdom, the court of chancery entertained a 
 bill for a writ of ne exeat regno, to restrain him 
 from leaving the kingdom until he had given se- 
 curity to pay the maintenance decreed (s). 
 
 (^) (1) Angell V. Draper, 1 Vern. But see Bnlch v. Wastall, 1 P. Wms. 
 
 338 ; Shirley v. Walts, 3 Atk. 200 445. 
 
 (2). (s) Read v. Read, 1 Ca. in Cha. 
 
 (r) Manningham \. Lord Baling- 115; Sir Jeroin. Smithson's case, 2 
 
 iroAre, Elegit, Easter, 1777, in Chan.; Ventr. 345; Anon. 2 Atk. 210; 
 
 Kennard v. Moore, in Clian. June 23, Ambl. 76 ; Shaftoe v. Shajtoe, 7 
 
 1756; 2 Eq. Ca. Ab. 251; Kin<r v. Ves. 171; Dawson v. Dawson, ib. 
 
 M«risW, 3 Atk. 192 ; -S. C. ib. 200. 173; Oldham v. Oldham, ib. 410; 
 
 Haffey v. Haffey, 14 Ves. 261. 
 
 (1) [See the form of such a demurrer, Willis, 470; and also note 
 (b) thorp, and notes to pige 115, antp.'\ 
 
 (2") [t/. >S. V. Stnrges, 1 Paine's C. C. R. 525 ; and see note to page 
 115, anteSl 
 
 (3) [A creditor by decree in chancery, upon the return of his exe-
 
 149 DEMURRERS. [ChAP. IL 
 
 2. Sometimes a party, by fraud, or accident, 
 
 150 or otherwise, has an advantage in proceeding in a 
 
 2. To prevent the ^ . . ,. . i • , 
 
 other courts court 01 orduiaiy jurisdiction which must necessa- 
 
 Irom being mane •' •* 
 
 ^justice r^"'"^ rily make that court an instrument of injustice ; 
 and it is therefore against conscience that he 
 should use the advantage (1). In such cases, to 
 prevent a manifest wrong, courts of equity have 
 interposed, by restraining the party whose con- 
 science is thus bound from using the advantage he 
 has improperly gained; and upon these principles 
 [128] bills to restrain proceedings in courts of ordinary 
 jurisdiction are still frequent, though the courts of 
 common law have been enabled, by the assistance, 
 of the legislature, as well as by a more liberal ex- 
 ertion of their inherent powers, to render applica- 
 tions of this nature to a court of equity unneces- 
 sary in many cases where formerly no other reme- 
 M in cases of dy was providcd. Thus if a deed is fraudulently 
 accwent,andop. obtained without consideration, or for an inade- 
 quate consideration, or if by fraud, accident or 
 mistake (2), a deed is framed contrary to the in- 
 
 cution unsatisfied, is entitled to the same relief against the equitable 
 interests and property of his debtor as a creditor by a judgment at law. 
 Clarkson v. De Peyster, 3 Paige's C. R. 320. J 
 
 (1) See note to p. 132. 
 
 (2) [ Yellnn v. Hau-kms, 1 J. J. Marshall's R. 2 ; Parcels v. Gohegan, 
 lb. 133 ; Burdett v. Simons, 3 lb. 192; Hyne's Representatives v. Camp- 
 bell, 6 Monroe's R. 287 ; Baugh v. Ramsey, 4 lb. 157, 158 ; Barrett v, 
 Floyd, 3 Call'ri R. 4' 5 ; Roserelt v. Fulton, 2 Cow en's R. 129; Lyon 
 V. Richmond, 2 J. C. R, 51 ; Gillespie v. Moon, lb. 585. But if a de- 
 fence has been mad6 at law and the consideration investigated, equity 
 will not interfere. Yelton v. Nankins, sitpra. It cannot interfere 
 further than to correct a mistake in the amount of a judgment obtained 
 without fraud. lb. If a note is, by mistake, executed for loo large a sum, 
 it is a ground for relief in equity. Money paid by mistake,and as ex- 
 cessive interest, may be recovered back by bill. Ashbrook v. WatkinSi, 
 
 presaion.
 
 S. II. p. I.] DEMURRERS. 150 
 
 tention of the parties in their contract on the sub- 
 
 3 Monroe's R. 82. A judgment which has been obtained through mis- 
 take of the defendant at law will not be relieved against, if proper steps 
 could have been taken. Farmers^ Bank v. Vanmelir, 4 Randolph's R. 
 553 ; Inhabitants of Essex v. Berry, 2 Vermont R. 161. Equity 
 allows bills where defence was not known to party until after judg' 
 -ment. Hubbard v. Hobson, 1 Breese's (Illinois) R. 147 ; Foster v. 
 Wood, 6 J. C. R. 87; but see Fish v. Lane, 2 Hayw. 342. If by 
 mistake or the un^kilfulness of the drawer, a bond be' not drawn accord- 
 ing to the understanding of the parties, the surety of the obligee shall 
 be subjected in equity as far as he understood himself to be subject. 
 Hason's administrators v. Pitman, lb. 331. If, through mistake, a seal 
 is not put to a bond, chancery will supply the defect. Montville v. 
 Haughton, 7 Day's R. 543. Where the intention is manifest, chan- 
 cery will always relieve against mistakes in all agreements. Wiser 
 V. Blichly, 1 J. C. R. 607, It must have clear and satisfactory proof 
 of the mistake and of the real ageement between the parties. Lyman 
 V. U. S. Ins. Co., 2 J. C. R. 630; S. C. on appeal, 17 J. R. 373; Ex. 
 ecutors of Gelman v. Beardsley, 2 J. C. R. 274. Harrison v. Jameson, 
 3 lb. 232. When a seal or the signature of a person has, without 
 competent authority, been affixed to a deed, equity may grant the party 
 relief against the deed, on the ground either of fraud or quia timet. 
 Cummins v. Kennedy, 4 lb. 64. Where an aged man conveys his 
 properly to relatives on consideration of living with him and they 
 abandon him, the deed will be set aside. Jenkins v. Jenkins, 3 Mon- 
 roe, 329. Bond of drunken man set aside. King's ExWs v. Bryant's 
 Ex'rs, 2 Hayw. 394. A judgment or decree obtained by fraud may 
 be set aside in equity. Williams v. Fowler, 2 J. J. Marshall's R. 405. 
 A forged deed will be ordered to be delivered up and cancelled, Leigh 
 V. Everharts' Ex'rs, 4 lb. 380. Has general power to order a deed 
 to be given up. Ex'rs of Ward v. Ward, 1 Hayw. R. 226. Jf it is 
 too uncertain as to the estate granted, the court can set it aside. Pearse 
 V. Owens,VQ. 234. Tne general principal of a court of equity is, that 
 a bill in equity may be filed for the delivering up of an instrument 
 which cannot be enf )rced at law, in order that the complainant may 
 not be harassed by vexatious proceedings at law. Grover v. Hugell, 
 3 Russ. 434.] 
 
 As to mistakes under an ignorance of law, and the power of the 
 court to relieve, Ignoranlia legis neminem excusal is the general rule 
 in equity as at law. It has e.xceptions but it seems not well settled. 
 American cases adhere to it from danger of opening a door for so com- 
 mon a pretence. The courts do not relieve parties from acts and deeds 
 fairly done on a full knowledge of facts though under mistake of law.
 
 150 DEMURRERS. [ClIAP. II. 
 
 ject, the forms of proceeding in the courts of com- 
 mon law will not &^dmit of such an investigation 
 of the matter in those courts as will enable them 
 to do justice. The parties claiming under the 
 deed have therefore an advantage in proceeding in 
 a court of common law which it is against con- 
 science that they should use ; and a court of equi- 
 ty will on this ground interfere to restrain pro- 
 ceedings at law until the matter has been properly 
 
 Many of the cases where exceptions to the rule have been admitted, 
 are, mistake of facts as well as law or some suppression of the truth, 
 fraud, or contrivance in the party. Garwood v. Administrators of El- 
 dridge, 1 Green's C. R. 150, 145. 
 
 If this court can relieve against a mistake in law in any case where 
 the defendant has been guilty of no fraud or unfair practice, which at 
 least is very doubtful, it must be a case in which the defendant has in 
 reality lost nothing whatever by the mistake and where the parties can 
 be restored to the same situation, substantially, in which they were at 
 the time the mistake happened. Crosier v. Acer, 7 Paige's R. 143, 137. 
 
 In Ohio, it was held on a bill of review to reverse a judgment of the 
 supreme court of Fairfield county, that mistake of law will be cor- 
 rected in equity, as where an instrument, by a clear mistake of parlies 
 — an error of opinion — as to the legal effect of the words used, fails 
 to carry out their intention. Though such case is a mistake of law, 
 complainant has a remedy in equity on the broad principle, that in 
 this peculiar class of cases, such mistakes are relievable. A sheer 
 mistake of law, where an instrument fails, to carry out the intention 
 of the parties by reason of a mistake in the effect of the terms em- 
 ployed by the draftsman, equity will relieve. Etanis v. Strode''s Ad' 
 minisiralor ,11 Ohio R. 487, 480. 
 
 In Massachusetts the power of a court of equity to reform or rectify 
 contracts, however important and useful it may be in the administra- 
 tion of justice, is there held clearly not within the limited jurisdiction 
 of their court. Hence where plaintiffs offered parol evidence explana- 
 tory of the true meaning of, and to show that the written agreement 
 was erroneously drafted by mistake of the attorney who drew it, if its 
 true construction be such as contended for by defendant, the evidence 
 was deemed inadmissible and was rejected. Leach v. Leach, 18 Pick. 
 R. (Mass.) 73, 68; and Dwight v. Pomeroy et al., 17 Mass. R. 303: 
 Gould V. Gould, 5 Metcalf R. 276, 274, 528.
 
 S. II. p. I.] DEMURRERS. 150 
 
 investigated, and if it finally appears that the deed 
 
 has been improperly obtained, or that it is contrary 
 
 to the intention of the parties in their conti'act, 151 
 
 will in the first case compel the delivery and 
 
 cancellation of the deed, or order it to be deposited 
 
 with an officer of the court ; and will compel a 
 
 re-conveyance of property if any has been so 
 
 conveyed that a re-conveyance may be necessary 
 
 (t) ; and in the second case will either rectify the 
 
 deed according to the intention of the parties, or [129] 
 
 will restrain the use of it in the points in which it 
 
 has been framed contrary to, or in which it has 
 
 gone beyond, their intention in their original 
 
 contract (i^). The instances of the exercise of the 
 
 jm'isdiction of courts of equity in these cases, and 
 
 especially in the case of a deed fraudulently 
 
 obtained, are numerous X^cc). On the ground of 
 
 (t) See on this subject, Bishop of v. Royal Exchange Assur. Camp. 1 
 
 Winchester v Fournier, 2 Ves. 445 ; Ves. 317 ; Rogers v. Earl, Dick. 294; 
 
 Ba<es V. Grfffes, 2 Ves. Jr. 287; Prfn- Marquis of Townshend .v. Stan- 
 
 gle V. Hodgson, 3 Ves. 617 ; Wright groom, 6 Ves. 328; Clowes v. Hig- 
 
 V. Proud, 13 Ves. 136; Ware v. ginson, 1 Ves. & Bea. 524; Bcau- 
 
 Horwood, 14 Ves. 28 ; Hug.venin v. mont v. Bramley, 1 Turn. R. 41 ; 
 
 Baseley, 14 Ves. 273; Willan v. Ball. v. Slorie, 1 Sim. & Stu. 210 ; 
 
 Willan, 16 Ves. 72; Murray v. 2 Sim. & Stu. 178. 
 
 Palmer, 2 Sch. & Lefr. 474 ; Walk- (x) It has been sometimes doubted 
 
 er\. Symonds, 3 Swaust 1; Gordon whether the court ought to compel 
 
 V. Gordon, 3 Svvanst. 400 ; Wood v. the delivery and cancellation of an 
 
 Abrey, 3 Madd. 417; Tweddell v. instrument which ought not to be en- 
 
 Tweddell, 1 Turn. R. 1 (1). forced, and whether the more proper 
 
 (w) See 2 Atk. 33, 203 ; Henhle course would not be to order a per- 
 
 (1) [And see the singular case of Nnrtonv. Reilly, in the l?t vol. of 
 the Collectanea Juridica, and the bold npinion of Chancellor Nurthing- 
 ton — an opinion which did honor to his head and heart. There, a bill 
 was filed for relief against a deed obtained under circumstances of 
 fanatical delusion. Also, Apthorpe v. Comstock, 1 Hopk. 143 ; 8 Cow. 
 386; 2 Paige, 482; Thompson v. Graham, 1 Paige^ 384.]
 
 152 DEMURRERS. [ChAP. II. 
 
 mistake the courts of equity have also frequently 
 interfered in a variety of instances, and particularly 
 [130] in the cases of defective securities for money {y), 
 and of marriage settlements founded on previous 
 articles, where the settlement has been contrary to 
 the evident intention of the parties in the articles (z). 
 The courts of equity will interfere upon the same 
 grounds to relieve against instruments which 
 destroy, as well as against instruments which 
 create, rights; and therefore will prevent a release 
 which has been fraudulently or improperly obtain- 
 ed from being made a defence in an action at 
 law. And where a fine and non-claim were set up 
 as a bar to an ejectment by an heir at law, who 
 
 petual injunction to restrain the use ment the court ought to take the cus- 
 
 of the instrument. See 1 Ves. Jr. tody ; and in such a case the instru- 
 
 284 ; Ryan v. Mackmath, 3 Bro. C. ment has been generally ordered to 
 
 C. 15, and the cases there cited, and be deposited with an officer of the 
 
 Mason v. Gardiner, 4 Bro. C. C. 436. court. Bishop of WiiiAester v. 
 
 But if the instrument ought not to i^owrnier, 2 Ves. 445, and cases there 
 
 be used, it is against conscience for cited (1). 
 
 the party holding it to retain it, as he (y) Sims v. Urry, 2 Ca. in Chan, 
 
 can only retain it for some sinister 225 ; <S. C. Rep. temp. Finch, 413, 
 
 purpose; and in the case of a nego- and 2 Freem. 16; Burgh v. Fran- 
 
 tiable instrument it may be used for cis, 1 Eq. Ca. Ah. 320 ; Taylor v. 
 
 a fraudulent purpose, to the injury of Wheeler, 2 Vern. 564; Jennings v. 
 
 a third person. See Bromley v. Hoi- Moore, 2 Vern. 609 ; Bothomly v. 
 
 land. Coop. R. 9 ; 11 Ves. 535; 17 Lord Fairfax, 1 P. Wms. 334 (2>. 
 Ves. 112; 1 Ves. & Bea. 244; Wynne (z) On this subject, see Randall 
 
 V. Callandar, 1 Russ. R. 293 ; and v. Willis, 5 Ves. 262 ; Taggart v. 
 
 see 2 Swanst. 157, note, where the Taggart, ISch. Sc heir. S4; Black- 
 
 leading authorities on this subject hum v. Stables, 2 Ves. & Bea. 367 ; 
 
 ,are collected. Of a forged instru- 1 Turn. R. 52. 
 
 .(1) And see Apihorp v. Comstock, 2 Paige's C. R. 482. 
 (2) Phdnix Fire Ins. Co. v. Gurn'e, 1 Paige's C. R. 273. Or, es. 
 pecially where the mistake arose from confiding in the representations 
 of the adverse party. Rhode Island v. Massachusetts, 15 Peters 271, 
 233.
 
 S. II. p. I] DE3VIURRERS. 152 
 
 had filed a bill in equity before the time had run 
 
 on the fine, for discovery of title deeds, and for 
 
 other purposes, with a view to try his title at law, 
 
 the house of lords upon an appeal restrained the 
 
 netting up the fine («). In many cases of accident, 
 
 as lapse of time, the courts of equity will also 153 
 
 relieve against the consequences of the accident 
 
 in a court of law. Upon this ground they proceed 
 
 in the common case of a mortgage, where the title 
 
 of the mortgagee has become absolute at law upon 
 
 default of payment of the mortgage-money at the 
 
 time stipulated for payment {d). 
 
 As the courts of equity will prevent the unfair use [131] 
 of an advantage in proceeding in a court of ordinary 
 jurisdiction gained by fraud or accident, they will 
 also, if the consequences of the advantage have 
 been actually obtained, restore the injured party to 
 his rights. Upon this ground there are many 
 instances of bills to prevent the effect of a judgment 
 at law, and to obtain relief in equity where it was 
 impossible.by any means to have the matter proper- 
 ly investigated in a court of law ; or where the matter 
 might be so investigated, to bring it again into a 
 course of trial (r).(l). 
 
 Bills of the latter description or (as they are 
 
 (a) PincU V. Thornycrofl, 1 Bro. Gyles, 2 Vern. 232 ; Tilly v. Wkar- 
 
 C. C. 289. ton, 2 Vern. 378 ; S. C. ib. 419 ; 1 
 
 (h) See 7 Ves.273 ; 2 Sch. &-Lefr. Eq. Ca. Ab. 377, 378 ; Countess of 
 
 685. Gainsborough v. Gifford, 2 V. Wms. 
 
 (c) Curtess v. Smalridge, 1 Ca. 424 ; Hankey v. Vernoji, 2 Cox's R. 
 
 in Clia. 43 ; 3 C. Uep. 17 ; Robin- 12 ; 2 Ves. Jr. 135 (1). 
 son V. Bell, 2 Vern. 14G ; Thomas v. • 
 
 (1) [See the form of a bill, Willis, 118.] 
 
 (2) {Saunders v. Jennings, J. J. Marshall's R. 613.] 
 
 15
 
 153 DEMURRERS. [ClIAP. II. 
 
 usually called) bills for a new trial, have not been 
 of late years much countenanced (1). In general, 
 it has beeen considered that the ground for a bill 
 to obtain a new trial after judgment in an action at 
 law must be such as would be ground for a bill 
 of review of a decree in a court of equity upon 
 discovery of new matter (d); and therefore where 
 
 154 judgment has been obtained against one underwriter 
 on a policy of insurance, a point of law being 
 
 . adjudged on a case reserved in favour of the 
 plaintiff at law ; and afterwards in other actions on 
 the same policy, against other underwriters, 
 judgment was given for the defendants on the same 
 point, the first judgment being deemed to have 
 [132] been clearly erroneous ; a demurrer was allowed to 
 a bill brought by the defendant in the first action 
 for a new trial (2). No new matter of fact had been 
 discovered ; and if this bill hrd been sustained, a 
 similar bill might have been filed, whenever a 
 court of law had pronounced an erroneous 
 judgment which could not be reversed by a writ 
 of error (e). So if the defendant in an action at 
 law submits to go to trial without filing a bill in 
 equity for a discovery of evidence, and after verdict 
 against him attempts to obtain that discovery as 
 a ground for a new trial, the court of equity will 
 not countenance such a proceeding when there is 
 
 (d) 1 Ca. in Cha. 43. (e) Gibson v. Bell, on demurrer, 
 
 30 July, 1800, in Chan. 
 
 (1) [See the form of a bill for a new trial, Willis, 167.] 
 
 (2) [See the form of a demurrer, Willis, 436, page 186, post, and 
 notes there.]
 
 S. II. p. I.] DEMURRERS. 154 
 
 no fraud in the conduct of the plaintiff at law(/) (1). 
 
 Cases of oppression, where a man has taken ad- 
 vantage of the situation of another to obtain from 
 him an unreasonable contract, have been the sub- 
 jects of relief on the same ground (g) (2) ; and in 1^5 
 some cases the courts of equity have rescinded 
 improper contracts on the grounds of general poli- 
 cy, and to prevent a public inconvenience, as in the 
 case of securities given for marriage-brokage (Ii), 
 or for the obtaining of public offices, or employ- 
 ments (i) (3). 
 
 If a bill for any of these purposes does not show [133] 
 a'sufficient ground for a court of equity to inter- 
 fere, the defendant may demur for want of matter 
 of- equity in the plaintiff's case to support the ju- 
 
 (/) Richards v. Symes, 2 Atk. 18 Ves. 12; 6 Madd. 109. 
 
 319 ; Williams v. Lee, 3 Atk. 223 ; (h) Smith v. Bruning, 2 Vern. 
 
 Manning v. Mestaer, in Chan. 9 Dec. 392 ; 3 P. Wms. 394 ; Williamson v. 
 
 1786, on cause shown against dis- Gihon, 2 Sch. & Lefr. 357. 
 
 solving injunction. See Field v. (j) Laio v. Law, 3 P. Wms. 391 ; 
 
 Beavmont, 2 Swanst. 204. Whittingham v. Bourgoyne, 3 Anstr. 
 
 (g) Bosanquett v. Dashwood, Ca. 900 ; Hannington v. Du Chatel, 1 
 
 t. Talb. 38; Osmond v. Fitzroy, 3 Bro.C.C. 124; S. C. 2 Swanst. 159, 
 
 P. Wms. 131 ; Cooke v. Clayworth, note. 
 
 (1) A bill to set aside a verdict is not sustainable, where the facts on 
 which the bill is founded, though discovered since the trial, might 
 have been established at tiie trial, upon cross-e-nminatioD. Taylor v. 
 Sheppard, 1 Y. & C. Eq. Ex. Ca. 271. 
 
 (2) [See the form of a bill in such a case, Willis, l7l.] 
 
 (3) [See tiie form of a demurrer to meet this sort of case, Willis, 
 437 ; and also the form of a bill. lb. 180. And a reference is there 
 given to 1 Chilly on PL 2 18, in connexion with the following remark: 
 In pleadings at law, public statutes and the facts which they ascertain, 
 must be noticed by the courts, without their being stated in pleading ; 
 and it is only necessary to state facts, which will appear to the court 
 to be affected by the statute, concluding in general with an express 
 reference to the statute, as by the words " contrary to the form of the 
 statute."]
 
 155 DEMURRERS. [ChAP. II. 
 
 risdictioii of the court. And the courts of equity 
 will thus restrain and relieve against the effect of 
 proceedings in other courts in such cases only as 
 concern mere civil rights ; and therefore if a bill is 
 brought for relief against a proceeding at law upon 
 a criminal prosecution, as an indictment, or infor- 
 mation, or a mandatory writ, as a writ of prohibition, 
 a mandamus, or any writ which is mandatory and 
 not remedial, the defendant may demur (k) (1). 
 3. To enforce 3. Thc pHnciplcs of law which guide the decisions 
 Bcience, though of tlic courts of ordiuarv jurisdiction, and especially 
 
 not legal rights •' *» • • n /• j 
 
 ^2>- the courts of common law, were prmcipally formed 
 
 in times when the necessities of men were few, and 
 
 155 their ingenuity was little exercised to supply their 
 
 wants. Hence it has happened that, according to 
 the principles of natural and universal justice, there 
 are many rights for injuries to which the law, as 
 administered by those courts, has provided no 
 remedy. This is particularly the case in matters 
 of trust and confidence, of which the ordinary 
 courts, taking in a variety of instances no cogni- 
 zance, and the positive law being silent on the sub- 
 ject, the courts of equity, considering the conscience 
 of the party entrusted as bound to perform the trust, 
 iiave interfered to compel the performance (2). And 
 it lias long been settled, that where trustees are de- 
 ri34] sirous of acting under the direction and protec- 
 
 (k) Lord Montague v. Dudman, 2 Ves. 396; 1 Eq. Ca. Ab. 131 ; and 
 see 18 Ves. 22a. 
 
 (1) [See the form of a demurrer, Willis, 133.] 
 
 (2) See note, page 232. 
 
 (3) [See the form of a bill for relief in matters of trust, Willis, 
 186.]
 
 S. II. p. I.] DEMURRERS. 156 
 
 tion of a court of equity, they may file a bill for 
 those purposes against the persons interested in 
 the trust property (/) (1). And in many other 
 cases where the positive law has been silent, and 
 there are rights in conscience for injuries to which 
 the ordinary courts afford no remedy, the courts 
 of equity have also interfered ; enforcing the prin- 
 ciples of universal justice upon the ground of obli- 
 gation on the conscience of the party against whom 
 they are enforced (in). To support a bill in any of 
 these cases, it is necessary for the plaintiff to show 
 that the subject of the suit is such upon which a 
 court of equity will assume jurisdiction ; and if he 
 fails to do so, the defendant may demur. 
 
 4. Courts of equity in many cases will act as an- 4. to remove im- 
 
 ^ _ •' •'_ _ pediments to the 
 
 ciliary to the administration of justice in other courts, ques'tion!'"""^* 
 by removing impediments to the fair decision of a 157 
 
 question. Thus, if an ejectment is brought to try 
 a right to land in a court of common law, a court 
 of equity will restrain the party in possession from 
 setting up any title which may prevent the fair trial 
 of the right (2) ; as a term for years, or other in- 
 terest in a trustee, lessee, or mortgagee (n) (2). 
 
 (Z) Leech v. Leech, 1 Ca. in Cha. and M. c. 14, courts of equity made ' 
 
 249. And see Fielden v. Fielden, 1 an heir responsible to creditors for 
 
 Sim. & Stu. 255. the value of assets which he had 
 
 (ot) It is said, 1 P. Wms. 777, that aliened, 
 before the statute of the 3 & 4 W. (n) 6 Ves.89 ; 1 Sch. & Lefr.429; 
 
 (1) [Mr. Willis, in giving the form of such a bill, refers to the case 
 of Brown v. Yeall, referred to in a note to 7 Ves. 59, and observes, that 
 the bill in this case appeared to have been signed by Lord Redesdale 
 when at the bar, and, as it seems, to illustrate the theory of his lord- 
 ship's treatise; and therefore he (Mr. Willis) had adopted it, p. 201.] 
 
 (2) [See the form of such a bill, Willis, 210.] 
 
 (3") If a bill to prevent tlie setting up of outstanding terms of years
 
 157 
 
 DEMURRERS. 
 
 [Chap. II. 
 
 But this will not be done in every case ; for as the 
 court proceeds upon the principle that the party in 
 possession ought not in conscience to use an acci- 
 [135] dental advantage to protect his possession against a 
 real right in his adversary, if there is any circum- 
 stance which meets the reasoning upon this princi- 
 ple, the court will not interfere. Therefore, if the 
 possessor.is a purchaser for a valuable consideration 
 without notice of the title of the claimant, this is a 
 title in conscience equal to that of the claimant, and 
 the court will not restrain the possessor from using 
 any advantage he may be able to gain to defend his 
 possession (o). It can hardly appear upon the face 
 of abill that the defendant is in such a situation, and 
 therefore the benefit of this defence must generally 
 be taken by plea •» but if the case should be so 
 stated, the defendant might demur; because the 
 
 and see 13 Ves. 298; Armitage v. (o) See 2 Ves. Jun. 457, 458; 
 
 Wadsworth, 1 Madd. R. 189 ; Bar- Maundrell v. Maundrell, 7 Ves. 567 ; 
 
 ney v. Luckett, 1 Sim. & Stu. 419 ; S. C. 10 Ves. 246. 
 Northey v. Pearce, ib. 420. 
 
 Allegation that 
 a defendant 
 threatens to set 
 up some out- 
 standing terms. 
 
 does not state that there are such terms, but merely alleges that the 
 defendant threatens to set up some outstanding satisfied terms of years, 
 or some other legal estate or interest in the premises, it is demurrable. 
 For an outstanding legal estate may be such as to make it impossible 
 for the plaintiff to recover in ejectment : as if the legal fee was not 
 vested in the testator, where the plaintiff claims by devise. Stansbury 
 V. Arkwright, 6 Sim. 481. But if the bill alleges that there are some 
 outstanding terms, which, if set up by way of defence, would defeat 
 the ejectment, and that the defendant threatens to set up those terms, 
 such an allegation is sufficient. Baker v. Harwood, 7 Sim. 373. 
 In a bill to restrain the setting up of outstanding terms in ejectment 
 *°if^,'.°' *^*lf ^ a positive averment of an absolute and indefeasible title in the plain- 
 
 a bill to restrain ' _ '^ 
 
 the Betting up of tiff, as a devisee, is sufficient, notwithstanding the bill only alleges 
 termi. that the devisor " being or claiming to be seised or otherwise well 
 
 entitled," devised the estate to the plaintiff Houghton v. Reynolds, 2 
 
 Hare, 264. 
 
 Positive aver-
 
 S. II. p. I.] DEMURRERS. 158 
 
 case stated would appear to be such in which a 
 court of equity ought not to assume jurisdiction. If 
 the matter suggested in a bill as an impediment to 
 the determination of a question in a court of ordinary 
 jurisdiction in fact is not so, the defendant may also 
 demur ; for then there is no pretence for the inter- 
 ference of a court of equity. 
 
 5. Pending a litigation the property in dispute is pro?erty^pl^d® 
 often in danger of being lost or injured, and in such "" ' ''" °°" 
 cases a court of equity will interpose to preserve it, 
 if the powers of "the court in which the litigation is 
 depending are insufficient for thepui-pose (1). Thus 
 during a suit in an ecclesiastical court for admi- 
 nistration of the effi3Cts of a person dead, a court of 
 equity will entertain a suit for the mere preservation 
 of the property of the deceased till the litigation is [136] 
 determined, although the ecclesiastical court, by 
 granting an administration penr^ew^e Zii^e, will provide 
 for the collection of the effects (p) (2). And, pend- 
 ing an ejectment in a court of common law, a court 1^9 
 of equity will restrain the tenant in possession from 
 committing waste, by felling timber, ploughing an- 
 cient meadow, or otherwise (q). Against this in- 
 convenience a remedy at the common law was in 
 many cases provided during the pendency of a real 
 
 (p) King v.- King, 6 Ves. 172 ; Jones v. Frost, 3 Madd. I ; S. C. I 
 
 Richards v. Chave, 12 Ves. 462 ; Ed- Jac. R. 46G ; 6 Madd. 49, 105. 
 
 munds \. Bird, I Ves. & Bea. 542; (q) Pulteney v. Shelton, 5 Ves. 
 
 Atkinson v. Henshnw, 2 Ves. & B. 260, note; Lathropp v. Marsh, 5 
 
 85 ; Ball v. Oliver, 2 Ves. & B. 96 ; Ves. 259 ; and see Onslow v. , 
 
 Rutherford v. Douglas, rep. 1 Sim. 16 Ves. 173. 
 & Stu. Ill, 11.; 3 Meriv. 174; 
 
 (1) See note, page 132. 
 
 (2) [See llie form of such a bill, Willis, 215.]
 
 159 DEMURRERS. [ChAP. II. 
 
 action by thef writ of estrcpcment (r) ; and when the 
 proceeding by ejectment became the usual mode of 
 trying a title to land, as the writ of estrepement did 
 not apply to the case, the courts of equity, proceed- 
 ing on the same principles, supplied the defect. 
 
 But, in general, if the court in which the suit is 
 depending can itself provide for the safety of the 
 property, a demurrer will hold. The interference 
 to preserve the effects of a person dead pending a 
 litigation in the ecclesiastical court, touching the 
 administration of those effects, scarcely forms an ex- 
 ception to this rule ; for the protection afforded by an 
 adimnistrsition pendente lite has been often a very 
 insufficient protection ; and in the administration of 
 personal effects the courts of equity have assumed' 
 a concurrent jurisdiction with the ecclesiastical 
 courts, and for many purposes have a much more 
 [137] effectual jurisdiction, particularly for payment of 
 creditors, and concluding all parties by the judgment 
 of the court in the distribution of the effects, and 
 
 160 preserving* the surplus for the benefit of those 
 who may finally appear to be entitled to it (1). 
 
 the^ksISiTo^f* 6- Doubts have been suggested how far a court 
 f/a°mannlrpro- of cqulty ought to interfere to prevent injury arising 
 
 ductire of irre- 1 . • n i t ' 
 
 parable damage to property pending a suit founded on trespass. 
 This doubt, it should seem, ought to be confined 
 to cases of mere trespass, and where the injury done 
 
 (r) F. N. B. 60. 
 
 (1) [See the form of a bill by simple contract creditors for payment 
 of debt and marshalling assets, Willis, 220.] 
 
 (2) See note, page 1 32.
 
 «S. II. p. I.] DEMURRERS. 160- 
 
 is not probably irreparable (s) (1). But when a 
 doubtful right has been asserted in a manner pro- 
 ductive of irreparable injury, the courts have inter- 
 fered. Therefore, where the tenants of a manor, ^ »° «="" °* 
 
 ' • ' waste, and m- 
 
 claiming a right of estovers, cut down a great cop^n'^huan^d 
 quantity of growing timber of great value, their p^'*"**" 
 title being doubtful, the court of chancery en- 
 tertained a bill at the suit of the lord of the manor 
 to restrain this assertion of it (t) ; and indeed the 
 commission of waste of every kind, as the cutting 
 of timber, pulling down of houses, ploughing of 
 ancient pasture, working of mines, and the like, is a 
 very frequent ground for the exercise of the juris- 
 diction of courts of equity, by restraining the waste 
 till the rights' of the parties are determined. The 
 courts of equity have also extended their relief to 
 restrain the owner of a mine from workinsf minerals 
 in the adjoining land of another, though a mere tres- 
 pass under the cover of a right (u). [138] 161 
 
 The courts of equity seem to have proceeded 
 upon a similar principle in the very cammon cases 
 of persons claiming copy- right of printed books (2), 
 
 («) Hanson v. Gardiner, 7 Ves. and Stonor v. Whiting, Hil. 1768, 
 
 305 ; 10 Ves. 291 ; 17 Ves. 110, 281 ; in Chan. 1 Sch. & Lefr. 8. 
 1 Swanst. 208, 210. See above, (u) Mitchell v. Dors, 6 Ves. 147 ; 
 
 136, note (u). 7 Ves. 308 ; Thomas v. Oakley, 18 
 
 (0 Stonor V. Strange, M\ch. 1767, Ves. 184. 
 
 (1) [See the form of a bill for an account and mjunction where a 
 trespass has been committed, Willis, 228] 
 
 (2) Where a person seeks to restrain an infrtngempnt of his copy- N°* ncccBiary 
 ... . .... to specify pira- 
 
 right, it is not necessary for him to ^^p'>cif3', either in his bill or in his ted passages. 
 
 affidavit, the parts of the defendant's work which have been taken 
 from his wol-k ; but it is sufficient to allege generally, that parts of the 
 defendant's work have been pirated from the plaintiff's work. For the 
 pirated passages are pointed out by counsel when the injunction is 
 moved for. Sweet v. Maugham, 11 Sim. 51.
 
 161 DEMURRERS. [ChAP. II. * 
 
 and of patentees of alleged inventions (1), in re- 
 straining the publication of the book at the suit of 
 the owner of the copy, and the use of the sui)posod 
 invention at the suit of the patentees (2). But in 
 both these cases the bill usually seeks an account; 
 in one, of the books printed, and in the other, of the 
 profit arisen from the use of the invention ; and in 
 all the cases alluded to it is frequently, if not con- 
 stantly, made a part of the prayer of the bill that 
 the right, if disputed, and capable of trial in a court 
 of common law, may be there tried and determined 
 under the direction of the court of equity ; the final 
 object of the bill being a perpetual injunction to 
 restrain the infringement of the right claimed by 
 the plaintiff (a:). 
 
 162 In all cases of waste committed on lands or tene- 
 
 (x) On the subject of copyright, 2 Ves. & Bea. 19 ; Gee v. Pritck- 
 
 see Hogg v. Kirby, 8 Ves. 215; ard, 2 Swanst. 402; Rundell v. 
 
 Longman v. Winchester, 16 Ves. Murray, 1 Jac. R. 311 ; Lawrence v. 
 
 269; Wilkinsv. Aikin,\l Nes.A'22; Smith, 1 Jac. R. 471; Barfield v. 
 
 Southey v. Sherwood, 2 Meriv. 435; Nicholson, 2 Sim. & Stu. 1 (3) ; oa 
 
 Lord and Lady Percival v. Phipps, that of patents, see Harmer v. Plane, 
 
 Allegations in a (1) In a bill to restrain the infringement of a patent, it is not ne- 
 
 infringement^of cessary to set forth a full statement of the specification enrolled in 
 
 apatent. respect of the letters patent. If the plaintiff by his bill refers to the 
 
 specification, and alleges tliat he has done all that was required of him, 
 
 the court on demurrer will give credit to the allegation. Westhead v. 
 
 Keene, 8 Law J. (N. S.) Ch. Rep. 89. 
 
 (2) [See the form of such a bill as to copyright, Willis, 233, and 
 notes there. And as to a patent, lb. 246.] 
 
 (3) [Also, Mawman v. Tegg, 2 Russ. 385; Baily v. Taylor, 1 
 Russ. &. M. 73. As to restoring a bill relating to copyright. Bar- 
 field V. Nicholson, I Sim. 494. The act of congress of May 31, 1790, 
 ch. 42, (2 Bior. 104,) refers the party injured in a case of copyright to 
 any court of record of the United States wherein the same is cogniza- 
 ble ; but no jurisdiction is given to either the circuit or district courts. 
 Binns v. Woodruff, Coxe's Digest, 197.]
 
 S. II. p. I.] DEMURRERS. 162 
 
 ments, the courts of equity originally proceeded by 
 analogy to the provisions of the old common law, 
 by which tenant by the courtesy and in dower an- 
 swered only for the value of the waste done, and a 
 custos was assigned to prevent further waste. The 
 statute of Marlebridge, 52 H. III. c. 23, added a 
 fine for the offence to full damage for the injury 
 done ; and afterwards the statute of Gloucester, [1^9] 
 6 Edw. I. c. 5, gave treble damages, and the for- 
 feiture of the place wasted by tenant by the courtesy, 
 for life, or for years. The forfeiture by waste, and 
 all penalties, ought to be waived in a bill for re- 
 straining waste(?/), the courts of equity declining to 
 compel a discovery which may subject a defendant 
 to any penalty or forfeiture, and confining the relief 
 given to compensation for the damage done, and 
 restraining future injury (2). So at law the person 
 entitled to the benefit of forfeiture for waste might 
 waive the action for waste, and maintain an action 
 of trover for trees felled by a tenant impeachable 
 for waste (z). 
 
 With respect to copyholds, the courts appear, in 
 some instances, to have refused to restrain waste, 
 and left the lord to his legal remedy by forfeiture (a). 
 
 14 Ves. 130 ; Canham v. Jones, 2 (a) Dench v. Bampton, 4 Ves. 700. 
 
 Ves. & Bea. 248 ; Hill v. Thompson, In a cause, however, of Richards v. 
 
 3 Meriv. 622 (1). Noble, before Lord Erskine, when 
 
 (y) 1 Atk. 451. Chancellor, now reported in 3 Meriv. 
 
 (z) Berry v. Heard, Cro. Car. 242. 673, this decision was overruled. 
 
 (1) [Sheriff v. Coates, 1 Russ. & M. 159; Burrall v. Jewett, 2 
 Pai^re'sC. R. 134.] 
 
 (•2) See the forms of bills to restrain waste, Willis, 39, 254 ; and 
 prayer for injunction to restrain, lb. 9. And see notes at p. 254, of 
 the same book.]
 
 163 DEMURRERS. [ChAP. IL 
 
 The rights of the lord and ten ant- of copyholds de- 
 pending on the custom of each manor, it has per- 
 haps been thought that the lord is not entitled to 
 that protection which is given to rights ascertained 
 by the common law of the land, and that he has 
 generally the remedy in his own hands. Upon a 
 lease of land in Ireland for lives, renewable for ever, 
 the courts of equity there have declined restraining 
 waste not specially provided for by the terms of 
 the lease (h). 
 [140] But in the case of waste the courts of equity have 
 
 in many instances given remedies where the com- 
 mon law has provided none. Thus in the case of 
 coparceners (c) and tenants in common (d), the 
 court has interfered to prevent the destruction of the 
 property by one coparcener, or one tenant in com- 
 mon, to the injury of the rest (e). So where tenant 
 for life not impeachable for waste has proceeded to 
 destruction of a mansion-house (/), or to cut down 
 ornamental trees, or trees necessary for the protec- 
 tion of a mansion, or young saplings (g). In these 
 cases it should seem that the courts have proceeded 
 on the ground that the acts done were an uncon- 
 scientious use of the powers given to the particular 
 tenant, and in some instances perhaps partaking of 
 ][g4 the nature of mere malicious mischief (/i). It has 
 
 (6) Calvert v. Gason, 2 Sch. & (/) Vane v. Lord Barnard, 2 
 
 Lefr. 561. Vera. 758. 
 
 (c) Beaumont and Sharp, May 9, {g) Abraham v. Buhh, 2 Freera. 
 1751. 53; Chamberlynev. Dummer,lBTO. 
 
 (d) Hole V. Thojnas, TVes. 589; C. C. 166, and cases there cited; 
 Twort V. Twort, 16 Ves. 128. and see above, p. 137, note (u). 
 
 (e) 7 Ves. 590 ; 16 Ves. 131. (A) 2 Freem. 278 ; Bishop of fjon- 
 
 don V. Web, 1 P. Wms. 527.
 
 S. II. p. I.] DEMURRERS. 164 
 
 been much doubted whether in some instances this 
 rehef has not been carried to an extent which may 
 be found productive of great inconvenience, and per- 
 haps injustice, if the decisions should be imphcitly 
 followed (^). 
 
 Where persons were bound by covenant to keep 
 the banks of a river in repair, and by their acts in 
 contravention of the covenant great injury was likely 
 to arise, a court of equity has interfered by in- [141] 
 junction (k). 
 
 In all the cases in which the interference of a 
 court of equity is thus sought, if the bill should not 
 clearly show the title of the plaintiff, or his right to 
 demand the assistance of the court in his favour, or 
 that the case is one to which the court will apply 
 the remedy sought, the defendant may demur. 
 
 7. It has been mentioned (/) that where two or t.to compel 
 
 , . , , . 1 T rv • 1 two claimantato 
 
 more persons clami the same thmg by diiie rent titles, interplead. 
 and another person is in danger of injury from igno- 
 rance of the real title to the subject in dispute, 
 courts of equity will assume a jurisdiction to pro- 
 tect him ; and that the bill exhibited for this pur- 
 pose is termed a bill of interpleader, the object of it 
 being to compel the claimants to interplead, so that 
 the court may adjudge to whom the property be- 
 longs, and the plaintiff may be indemnified (1). 
 
 (i) See 16 Ves. 185. cited 2 Brown, C. C. 65. 
 
 (k) Lord Kilmorey v. Thackeray, (0 See above, p. 58. 
 
 (1) See note to p. 132, and p. 59, note. 
 
 [8ee the form of such a bill, Willis, 30.3, and notes there. Also, p. 
 49, 50. ante, and the notes. 
 
 In The Mohawk and Hudson Rail R. Co. v. Clute, 4 Paige, 385, 
 where the substance of an interpleader bill is given, the bill prayed 
 that the defendants may interplead and adjust their respective claims
 
 165 DEMURRERS. [ClIAP. IL 
 
 The principles upon which the courts of equity pro- 
 ceed in these cases are similar to those by which 
 the courts of law are guided m the case of bail- 
 ment ; the courts of law compelling interpleader be- 
 tween persons claiming property, forth6 indemnity 
 of a third person in whose hands the property is, 
 in certain cases only ; as where the property has 
 been bailed to the third person by both claimants, 
 or by those under whom both make title ; or where 
 the property came to the hands of the third person 
 by accident ; and the courts of equity extending the 
 remedy to all cases to which in conscience it ought 
 
 between themselves, and that the just or proper sums might be paid to 
 such of the defendants as should appear to be entitled to the same. 
 Also, a prayer for general relief and for a preliminary injunction. 
 The bill was, it was held, defective in form as a simple bill of inter- 
 pleader : 
 
 1. An offer to pay so much as is properly chargeable, or as the court 
 may direct would be a very proper offer in a bill for relief in the na- 
 ture of a bill of interpleader ; but as the complainant in a simple bill 
 of interpleader which is filed for the simple purpose of asking the de- 
 fendants to litigate and settle their conflicting claims between them- 
 selves, cannot litigate any part of the claim of either defendant, the 
 complainant should, it seems, pay into court the largest sum claimed, 
 (where, for instance, two several taxes in different places are assessed 
 on the same property and it is doubtful to which it belongs) or pay to 
 the one party the balance over what was claimed by the other; or, at 
 least, offer to bring into court the greater or less amount assessed. 
 
 2. Complainant must show that he is ignorant of the rights of de- 
 fendants, or that there is some doubt at least, to which of such defen- 
 dants the debt or duty belongs. So that he cannot safely pay or ren- 
 der it to one without some risk of being made liable for the same to 
 the other. For the only ground upon which the court assumes juris- 
 diction in a simple bill of interpleader, is the danger of injury to the 
 complainant from the doubtful rights and conflicting claims of the seve- 
 ral defendants as between themselves. For this reason he must state 
 his own situation in reference to the fund in question or the duty to 
 be performed and the nature of the claims of the several defendants 
 to the same. Idem 391 — 2 — 3.
 
 S. II. p. I.] DEMURRERS. 165 
 
 to extend, whether any suit has been commenced [142] 
 by any claimant, or only a claim made (?/i). 
 
 This remedy has been applied to the case of 
 tenants of lands charged with annuities, and liable 
 to distress by their landlord, and the claimants of 
 annuities (n), and to other cases of disputed titles (o), 
 in which the tenants have been permitted to pay 
 their rents into court ( J!?). 
 
 If a bill of interpleader does not show that each of 166 
 
 the defendants whom it seeks to compel to inter- 
 plead claims a right, both the defendants may de- 
 mur ; one, because the bill shows no claim of right 
 in him ; the other, because the bill, showing no claim 
 of right in the co-defendant, shows no cause of in- 
 terpleader {q) (2). Or if the plaintiff shows no 
 
 (m) It may here be noticed, that if Angell v. Hadden, 15 Ves. 244 ; S. 
 
 at the hearing the question between C. 16 Ves. 202. 
 
 the defendiints be ripe for decision, (o) Wood v. Kay and Wife and 
 
 this court will make a decree ; and others, 19 Dec. 1786; 2 Ves. Jr. 312 ; 
 
 that if such be not the case, it will 16 Ves. 203,204. 
 
 direct an action, an issue or a refe- (p) It is however observable, that 
 
 rence to a master, in order to bring in such cases the court interferes on 
 
 the matter to a determination. See the ground of privity having been 
 
 Duke of Bolton v. Williams, 2 Ves. created by the act of the landlord be- 
 
 Jr. 138 ; >S. C. 4 Bro. C. C. 297; tween his tenant and the other claim- 
 
 Angell v. Hadden, 16 Ves. 202. ant. See Cowtan v. Williains, 9 
 
 (n) Surry and others, tenants of Ves. 107 ; Clarke v. Byne, 12 Ves. 
 
 Lord Waltham, against Vaux and 383 ; E. I. Cump. v. Edwards, 18 
 
 others, 28 Feb. 1785; Aldridge v. Ves. 376. 
 
 Thom])son,2 Bro. C. C. 150 ; Lord (q) 1 Ves. 249 (1). 
 Thomond's Case, cited 9 Vea. 107 ; 
 
 (1) See the forms of such demurrers, Willis 440, 441. And look at 
 the case of Bedell v. Hoffman, 2 Paige's C. R. 199.] 
 
 (2) The one may demur upon tiie ground that complainant has a 
 perfect defence at law, against his claim ; and the other that t\w com- 
 plainant has neither a legal or an equitable defence to his claim, and 
 has therefore no right to call on him to interplead with a third person
 
 166 DEMURRERS. [ChAP. II. 
 
 right to compel the defendants to interplead, what- 
 ever rights they may claim, each defendant may 
 [143] demur (r). A bill of this nature is also liable to a 
 
 (r) As, for example, if a tenant 304 ; 2 Anstr. 532 ; JoAnson v. vl/A-in- 
 
 were to file such a bill against his son, 3 Anstr. 798 ; or, an agent against 
 
 landlord, and a person with whom he his principal and a third person, 
 
 himself has no privity, but who claims Nicholson v. Knowles, 5 Madd. 
 
 ty a title adverse to that of the land- 47 (1) ; a debtor against his creditor 
 
 lord. Dungey v. Angove, 2 Ves. Jr. become a bankrupt, and the ae- 
 
 who has no right. Where it appeared on the bill it was not a proper 
 case for interpleader, and the defendants, instead of demurring, put in 
 answers, and went to a hearing on pleadings and proofs, inserting in 
 their answers, however, that the bill was improperly filed, the chtn- 
 cellor, on dismissing the bill said, it should be dismissed without pre- 
 judice to the rights of complainants on any future litigatiun with 
 either defendant; so as not to preclude him upon the merits of their 
 respective claims, which could not be legally adjudicated in this form 
 of proceeding; and allowed the defendants costs nn'y, which they 
 would have had if they demurred, and the bill had been dismissed 
 thereon. Shaw v. Coster, 8 Paige's R. 339, et seq. 
 
 [And see Randolph's ackninislralrix v. Kinney, 3 Randolph's R. 394. 
 A bill of interpleader may be filed, though the party has not been sued at 
 law, or has been sued by one only of the conflicting claimants, or 
 though the claim of one of the defendants is actionable at law and 
 that of the other inequity. Richards v. Sailer, 6 J. C. R. 445. And 
 see also, Langston v. Boyleslon, 2 Ves. Jr. 107 ; Angell v. Hadu'en, 
 supra ; Morgan v. Monsack, 2 Meriv. 107 ; Stephenson v. Anderson, 
 2 V. & B. 407.] 
 
 Where a bill of interpleader is filed by the officer of a company on 
 behalf of a company, the affidavit annexed ought to state, not that the 
 secretary, who is the mere nominal plaintitF, does not colluile, but that 
 to the best of his knowledge and bs^lief, the society, who are tlie real 
 plaintifl^s, do not collude with the defendants. Bignold v. Amland, 
 11 Sim. 23. 
 
 (1) [But see the case of Pearson v. Cardon, 4 Simon's R. 220. The 
 facts of which case were these: B. & Co. deposited gnods with the 
 complainants (warehousemen) to await their directions ; and they af- 
 terwards directed that the goods should be trani^ferred to and held for 
 T., which was done accordingly. The goods were subsequently 
 claimed by C. as having been deposited by him with B. &. Co., as his 
 agents for the purpose of sale : Held, that although the complainants
 
 S. II. p. I.] DEMURRERS. 166 
 
 peculiar cause of demurrer ; for as the court will not 
 permit such a bill to be brought in collusion with 
 either claimant, the plaintiff, as has been already 
 mentioned, is required to annex to hisbill an affidavit 
 that it is not exhibited in collusion with any of the 
 parties, to induce the court to entertain jurisdiction 
 of the suit ; and the want of that affidavit is there- 
 fore a ground of demurrer (s) (1). A bill of this 167 
 nature generally prays an injunction to restrain the 
 proceedings of the claimants in some other court; 
 and as this may be used to delay the payment of 
 money by the plaintiff, if any is due from him, he 
 ought by this bill to offer to pay the money due into 
 court (t) (2). If he does not do so, it is perhaps in 
 strictness a ground of demurrer (3). 
 
 signees of the latter, Harlow v. (s) Metcalf v. Hari-'cy, 1 Ve8. 
 
 Crowley, 1 Buck, B. C. 273, and 248 ; and see 2 Ves. &. Bea. 410. 
 
 Lowndes v. Cornford, 18 Ves. 299 ; (0 Lord Thanat v. Patterson, 3 
 
 S. C. 1 Rose, B. C. 180. Barnard, 247 ; 2 Ves. Jun. 108, 109. 
 
 were the agents of B, & Co., yet that C. claimed under a paramount 
 title ; and. thereforp, that it was a case ot interpleader.] 
 
 (Ij [Tobin V. Wilson, 3 J. J. Marshall's R. 67; Manks v. Holroyd, Affidavit as to 
 1 Co wen's R. 691. In Connecticut, there is no occasion for this affi- collusion, 
 davit. Nash v. Smith, 6 Day's R. 421. Nor is the non-offer of bring- 
 ing the money into court any ground for demurrer. lb. See the 
 form of a demurrer for want of such an affidavit, Willis, 442; Eq. 
 Draft. 77, (2d edit.) The form of the affidavit in Harrison's Pract. is 
 eaid to go too far. Stevenson v. Anderson, 2 Ves. (fc B. 410. In 
 Prax. Aim. Cur. Can. part 2, p. 80, there is the form of one which 
 does not seem liable to the same objection. It runs thus: "The 
 " plaintiff A. B. maketh oath and saith, tbat this bill is exhibited by 
 "him voluntarily, and on his ovvn account, and at hi.s own co.'^ts; and 
 "not at tlie desire or by the persuasion, or at the costs of any of the 
 " parties defendants thereto."] 
 
 (2) Where a bill of interpleader is filed respecting a sum of money offer to pay 
 on which interest is payable at law, under the stat. 3 &. 4 W. IV. c. '°*<=''^^"^- 
 
 42, s. 8, (as in the case of a sum insured,) the plaintiff ought to offer 
 by his bill to pay the interest. Bignold v, Au-llanil, 11 Sim. 23. 
 
 (3) A bill of interpleader is not demurrable on account of its not 
 
 16
 
 167 
 
 DEMURRERS. 
 
 [Chap. II. 
 
 8. To put a 
 bound to litiga- 
 tion; 
 
 [144] 
 
 as in the case of 
 actions of eject- 
 ment. 
 
 168 
 
 Nuisances. 
 
 Offer to pay 
 money into 
 court. 
 
 8. In many cases the courts of ordinary jurisdic- 
 tion admit, at least for a certain time, of repeated 
 attempts to litigate the same question. To put an 
 end to the oppression occasioned by the abuse of this 
 privilege, the courts of equity have assumed a juris- 
 diction (?/) (1). Thus, actions of ejectment having 
 become the usual mode of trying titles at the com- 
 mon law, and judgments in those actions not being 
 in any degree conclusive, the courts of equity have 
 interfered ; and, after repeated trials, and satisfac- 
 tory determinations of questions, have granted per- 
 petual injunctions to restrain further litigation (x), 
 and thus have in some degree put that restraint upon 
 litigation which is the policy of the common law in 
 the case of real actions (?/) (2). 
 
 Upon the same principle (z) the courts of equity 
 seem to have interfered in cases as well of private 
 as of public nuisance (3) ; in the first, at the suit of 
 the party injured («) ; in the second at the suit of 
 the attorney-general (b) (4) : restraining the exer- 
 
 It seems that there might be a case 
 in which a demurrer would be pre- 
 vented by the money being brought 
 into court. See 19 Ves. 323. 
 
 (m) 2 Sch. & Lefr. 211. 
 
 (x) Earl of Bath v. Sherwin, 
 Free, in Chan. 2fil ; S. C. 4 Brown, 
 P. C. 373, Toml. Ed. Leighf.on v. 
 Leighton, 1 P, Wms. 671 ; 5". C. 
 4 Bro. P. C. 378, Toml. Ed. And 
 see Anon. Gilb. Eq. R. 183 ; -S._ C. 
 
 2 Eq. Abr. 172; Barefoot v. Pry, 
 Bunb. 158 ; 2 Sch. & Lefr. 211. 
 
 (y) Strange, 404. 
 
 (2) See Dick. 464 ; 16 Ves. 342 ; 
 19 Ves. 622. 
 
 (a) See Ryder v. Bentham, 1 Ves.- 
 543 ; Att. Gen. v. Nicholl, 16 Ves. 
 338 ; S.C.3 Mer. 687. 
 
 (b) See Anon. 3 Atk. 750 ; S. C. 
 named Baines v. Baker, Ambl. 158 ; 
 Att. Gen. v. Cleaver, 18 Ves. 211. 
 
 offering to pay the money claimed into court. But it is said that the 
 plaintiff must bring it in before he takes any step in the cause. Meux 
 V. Bell, 6 Sim. 175. But see supra, pp. 164, note, 166, note. 
 
 (1) See note top. 132. 
 
 (2) [The Revised Statutes of New- York have fixed the number of 
 new trials at two, in cases of ejectment. 2 R. S. 309.] 
 
 (3) See note to p. 1 32, supra. 
 
 (4) But the jurisdiction of the court in behalf of private persons
 
 S. 11. p. r.] DEiMURRERS, 168 
 
 cise of the nuisance where the proceedings at law 
 are ineffectual for the purpose, and preventing; the 
 creation of a nuisance where irreparable injury to 
 individuals, or great public injury would en- 
 sue (c) (1). In the case of a private nuisance it 
 seems necessary that a judgment at law, ascertain- 
 ing the rights of the parties, should have been pre- [145] 
 viously obtained (d) (2). On informations by the 
 attorney-general on behalf of the crown the court 
 of exchequer has proceeded to the abatement of 
 
 (c) 16 Ves. 342. 3 Meriv. 688 ; Wynstanley v. Lee, 
 
 {d) 19 Ves. 622 ; Chalk v. Wyatt, 2 Swanst. 333. 
 
 has been sustained in those cases where there is imminent dan- » 
 
 ger of irreparable mischief before the tardiness of law could reach it. 
 The "court pursuing the analogy of the law, that a party may maintain 
 a private action for special damage, even in case of a public nuisance, 
 will now take such jurisdiction at the instance of a private person, 
 where he is in imminent danger of suffering a special injury for which, 
 under the circumstances of the case, the law would not afford an 
 adequate remedy. The principle is, that in case of a public nuisance, 
 where a bill is filed by a private person, asking for relief by means of 
 prevention, the plaintiff cannot maintain a stand in a court of equity, 
 unless he avers and proves some special injury. City of Georgetown 
 v. The Alexandria Canal Co., <^c., 12 Peters 98, 91. 
 
 To sustain a general demurrer to the bill, in Massachusetts, it must 
 appear that no substantial and essential part of the complaint is within 
 the provisions of the statute conferring equity. The statute author- 
 izes the court to hear and determine in equity any matter touching 
 waste or nuisance in which there is not a plain adequate and complete 
 remedy at law. See Boston Water Power Co. v. Boston and Wor- 
 cester Rail Road Corporation, 16 Pick. R. 521, 512. 
 
 (1") [Van Bergen v. Van Bergen, 2 J. C. R. 272; Gardiner v. Trus- 
 tees of Newhurgh, lb. 162; Hart v. Mayor, cfc, of Albany, 3 Paij^e's 
 C. R. 213. There must be a case of strong and imperious necessity, or 
 the right must have been previously established at law, before tho court 
 
 will lend its aid in restraining the exercise of a nuisance. Corning v. 
 
 Lowerie, 6 lb. 439.] 
 
 (2) See the form of a demurrer, in such a case, Willis 443, and note 
 
 {h) there.
 
 168 DEMURRERS. [ChAP. II. 
 
 nuisances injurious to the royal prerogative, such as 
 nuisances in harbors, or even trespasses on the 
 public rights of the crown without any nuisance (e). 
 If a trespass is made on the soil of the crown, 
 
 169 whether reserved for the private use of the sovereign, 
 or for public purposes, and the trespass does not 
 produce a public injury, the jurisdiction may be 
 founded on the right of the crown to have the land 
 arrented, and the profit accounted for as part of the 
 royal revenue, in the nature of an assart ; and if the 
 trespass produces, or may in its consequences pro- 
 duce, public injury, the crown is entitled to the most 
 effectual means of preventing the injury (/). 
 
 Courts of equity will also prevent multiphcity of 
 
 suits ; and the cases in which it is attempted, and the 
 
 General rigbts mcaus uscd for that purpose, are various (1). With 
 
 several persons, this vlcw, whcrc OHO gcucral legal right is claimed 
 
 against several distinct persons, a bill may be brought 
 
 to establish the right (^) (2). Thus where aright 
 
 of fishery was claimed by a corporation throughout 
 
 the course of a considerable river, and was opposed 
 
 by the lords of manors and owners of land adjoin- 
 
 [146] ing, a bill was entertained to establish the right 
 
 (e) Att. Gen. V. Forbes, Ex. Tr'm. (g) 2 Atk. 484; 11 Ves. 444; 
 
 1795; Hale de Jure Maris, p. l,c. 4. Corporation of Carlisle v. Wilson, 
 
 p. 13 ; Churchman v. Tunstal, 13 Ves. 276 ; Duke of Norfolk v. 
 
 Hardr. 162; Att. Gen. v. Richards, Myers, 4 Madd. 83; 1 Jac. & W. 
 
 Anstr. 603. 369. 
 
 (/) 18 Ves. 218. 
 
 It has been said, in Maryland, that chancery will restrain a public 
 nuisance, pending- any judicial proceedings before those tribunals by 
 which the authority to do the act or its lawfulness is to be determined. 
 Williamson v. Carnan, 1 Gill &. Johns. 184.] 
 
 (1) See note to p. 132, sup?-a. 
 
 (2) [See the form of such a bill, Willis, 277.]
 
 S. II. p. I.] DEMURRERS. 169 
 
 against the several opponents, and a demurrer was 
 overruled (h).^ 
 
 As the object of such bills is to prevent multipli- 
 city of suits by determining the rights of the parties 
 upon issues directed by the court, if necessary for 
 its information, instead of suffering the parties to be 
 harassed by a number of separate suits, in which 
 each suit would only determine the particular right 170 
 
 in question 'between the plaintiff and the defendant 
 in it, such a bill can scarcely be sustained where a 
 right is disputed between two persons only, until 
 the right has been tried and decided upon at law (i). 
 Indeed in most cases it is held that the plaintiff 
 ought to establish his right by a determination of 
 a court of law in his favor before he files his bill 
 in equity (k) ; and if he has not so done, and the 
 right he claims has not the sanction of long posses- 
 sion (I), and he has any means of trying the matter 
 at law (m), a demurrer will hold (1). If he has not 
 been actually interrupted or dispossessed, so that he 
 has had no opportunity of trying his right, he may 
 bring a bill to establish it, though he has not pre- 
 viously recovered in affirmance of it at law, and in 
 such a case a demurrer has been overruled (n). 
 
 It is not necessary to establish a right at law be- [147] 
 
 (A) Mayor of York v. Pilkington, (m) Whitchurch v. Hyde, 2 Atk. 
 
 1 Atk. 282. 391; Wells v. Smeaton, in Chan, 
 (i) Lord Teynham v. Herbert, 27 May, 1784. 
 
 2 Atk. 48.3. (n) 1 Atk. 284. And see Duke 
 (k) 1 Atk. 284 ; Anon. 2 Ves. of Dorset v. Girdler, Free, in Chan. 
 
 414; 2 Sch. &. Lefr. 208; 11 Ves. 5.31. But see Welby v. Duke of 
 
 444 ; 1 Jac. & W. 369. Rutland, 2 Bro. P. C. 39, Toinl. Ed. ; 
 
 (Z) Bush V. Western, Prec. in 2 Sch. & Lefr. 209. 
 Chan. 530. 
 
 (1) [See tlie form of a demurrer, relating to a nuisance, which will 
 answer in this case, Willis, 443.]
 
 170 DEMURRERS. [ChAP. II. 
 
 fore filing a bill where the right appears on record, 
 as under letters patent for a new invention, in which 
 case a demurrer to abill for an injunction to restrain 
 an infringement of the patent right has been over- 
 ruled (o). So in the casesofl/iUsbroughtby authors, 
 or their assignees,to restrain thesale of books where 
 
 171 the right which is the foundation of the bill is 
 grounded on an act of parliament (p). And where 
 a right appeared on record by a former decree of 
 the court, it was determined that it was not neces- 
 sary to establish it at law before filing a bill (q). 
 Where a right prima facie and of common right is 
 vested in the crown, it will receive the same pro- 
 tection (r), and this principle maybe applied to some 
 of the cases mentioned in a preceding page. 
 
 A court of equity will thus protect private rights, 
 or rights of those who may be comprehended under 
 one common capacity, as the inhabitants of a parish, 
 or the tenants of a manor, which has been frequent- 
 ly done in bills to establish parochial customs of 
 tithing disputed by the tithe-owner, and more rarely 
 in bills to establish the customs of manors disputed 
 by the lord (s) ; but will not establish or decree a 
 [148] perpetual injunction for the enjoyment of a right in 
 contradiction to a public right, as a right to a high- 
 way, or a common navigable river, for that would 
 
 (o) Horton and Maltby, in Chan. (s) New Elme Hospital v. Ando- 
 
 23 July, 1783 ; 3 Meriv. 624. (1). ver, 1 Vera. 266 ; Bul<er v. Rogers, 
 
 (p) 1 Ves. 476. Sel. Ca. in Cha. 74 ; Cowper v. 
 
 (q) Ibid. Clerk, 3 P. Wms. 155 ; 2 Eq. Ca. 
 
 (r) See 6 Ves. 713 ; Grierson v. Ab. 172. 
 Eyre, 9 Ves. 341 ; 13 Ves. 508. 
 
 (1) [And See Mawman v. Teggt 2 Russ. 285.]
 
 S. II. p. I.] DEMURRERS. 171 
 
 be to enjoin all the people of England (^), although 
 it will restrain a public nuisance at the suit of the 
 attorney-general. 
 
 A court of equity will also prevent injury in some nmjuiatimet. 
 cases by interposing before any actual injury has 
 been suffered ; by a bill which has been sometimes 
 called a bill quia timet (1), in analogy to proceed- 3^72 
 
 ings at the common law, where in some cases a 
 writ may be maintained before any molestation, dis- 
 tress, or impleading (u). Thus a surety may file 
 a bill to compel the debtor on a bond in which he 
 has joined to pay the debt when due, whether the 
 surety has been actually sued for it Or not ; and 
 upon a covenant to save harmless, a bill may be 
 filed to relieve the covenantee under similar cir- 
 cumstances (x) (2). 
 , 9. To administer to the ends of justice without 9. to compel a 
 
 1 1 • 1 ly discovery in aid 
 
 pronouncmg any judgment which may aiiect any of other courto. 
 
 (t) Lord Hardwicke, in Lord {x) Lord Ranelagh v. Hayes, 
 Fauconberg and Pierse, 11th of 1 Vern. 189, 190, and on the general 
 May, 1753 ; 2 Eq Ca. Ab. 171 ; subject, see also 1 Ves. 283 ; Flight 
 Ambl. 210. V. Cook, 2 Ves. 619 ; Green v. Pigot, 
 
 («) Co. Litt. 100, a. 1 Bro. C. C. 103 ; Brown v. Dud- 
 
 hridge, 2 Bro. C. C 321. 
 
 (1) See rote to p. 132. 
 
 [A bill quia timet will not lie, unless the complainant uiay be sub- 
 jected to loss by the neglect, inadvertence or culpability of another. 
 Randolph's administrator v. Kinney, 3 Randolph's II. 394. 
 
 The j)revpntive relief which which this species of bill aff)rds being 
 requisite in those cases only where the property is o^ a perishable na- 
 ture, it cannot, of cour,*e, be necessary in respect of the inheritance 
 of real estate. Jeremy's Kq. Jur. 350. 
 
 A plea of a former recovery to a bill quia timet must show that the 
 eame subject matter and the right to the same land was before decided 
 upon. " Cates v. Lofius' heirs, 4 Monroe's R. 441.] 
 
 2) [Seethe form of a bill in such a case, Willis, 298.]
 
 172 DEMURRERS. [ChAP. II. 
 
 rights, the courts of equity in many cases compel a 
 discovery which may enable other courts to decide 
 on the subject. The cases in which this jurisdic- 
 tion is exercised will be considered in treating of 
 demurrers to discovery only. 
 teatooSy^*"'"' 10 Wlien the testimony of witnesses is in dan- 
 ger of being lost before the matter to which it re- 
 [149] lates can be made the subject of judicial investiga- 
 tion, a court of equity will lend its aid to preserve 
 and perpetuate the testimony (t/) (1) ; and as the 
 courts of common law cannot generally examine 
 witnesses except viva voce upon the trial of an ac- 
 tion, the courts of equity will supply this defect by 
 taking and preserving the testimony of witnesses 
 gonig abroad, or resident out of the kingdom (z), 
 
 173 which may be afterwards used in a court of com- 
 mon law. As the object of this jurisdiction is to 
 assist other courts, and by preserving evidence to 
 prevent future litigation, there aje few cases in 
 which the court will decline to exercise it. A de- 
 murrer to a bill seeking the benefit of it will there- 
 fore seldom lie {a) (1) ; and in a case where the 
 court was of opinion that the defendant might de- 
 mur both to the discovery sought and the relief 
 
 (jy) See above, 62, note {y). dizabel v. Machado, 2 Sim. & Stii. 
 
 (z) As to the examination of wit- 483. 
 
 nesses resident abroad, see Cock v. (a) 1 Atk. 451^571 ; 1 P. Wms. 
 
 Donovan,^ Ves. & Bea. 76 ; Bowden 117 ; Tirrell v. Co., 1 Rol. Ab. 383 ; 
 
 V. Hodge,2 Swdnst.25S: Cheminant Mendez v. Barnard, 16 May, 1735, 
 
 V. De La Cour, 1 Madd. 203 ; Devis on demurrer ; Lnd Dursley v. Fitz- 
 
 V. Turnbull, 6 Madd. 232 ; Baskett hardinge, 6 Ves. jun. 251 to 266. 
 
 V. Toosey, 5 Madd. 261 ; Angell See however, The Earl of Belfast v. 
 
 V. Angell, 1 Sim. & Stu. 83 ; Men- Chichester, 2 Jac. & W. 439. 
 
 (1) [A bill to perpetuate testimony, to lands of which the complain- 
 ants were out of possession, has been dismissed on demurrer. Smith- 
 Ballard, 2 Hayward's (North Carolina) R. 289.]
 
 S. II. p. I.] DEMURRERS. 173 
 
 prayed by a bill, it was held that to so much of the 
 bill as sought to pei-petuate the testimony of wit- 
 nesses the defendant could not demur (h). But if 
 the case made by the bill appears to be such on 
 which the jurisdiction of the court does not arise, 
 as if the matter t'o which the required testimony is [150] 
 alleged to relate can be immediately investigated 
 in a court of law, and the witnesses are resident in 
 England, a demurrer will hold (c) (1). Still, how- 
 ever, where from circumstances, as the age or in- 
 firmity of witnesses, or their intention of leaving the 
 kingdom, it has been probable that the plaintiff 
 would lose the benefit of their testimony, though 
 he should proceed with due diligence at law, the 
 courts has sustained a bill for their examination (d); 174 
 
 and to avoid a demurrer in this case it seems neces- 
 sary to annex to the bill an affidavit of the circum- 
 stance by means of which the testimony may pro- 
 bably be lost (e). A bill for the examination of a 
 single witness has been permitted where his evi- 
 dence was of the utmost importance, and he was 
 the only witness to the point, apparently upon the 
 
 (b) Earl of Suffolk v. Green, rers, 3 P. Wms. 77 ; Palmer v. Lord 
 1 Atk. 450. See Thorpe v. Macau- Aylesbury, 15 Ves. 176; Andrews v. 
 lay, 5 Madd. 218; S/iakell v. Ma- Palmer, 1 Ves. & B. 91 ; Corbett v. 
 caulay, 2 Sim. & Stu. 79. Corbett, 1 Ves. & B. 335 ; Atkins v. 
 
 (c) Lord North v. Lord Gray, Palmer,5 Ma6d. Id ; Dew v. Clarke, 
 Dick. 14 ; 1 Sim. & Stu. 89. 1 Sim. &- Stu. 108. 
 
 (d) As to the examination of wit- (e) Phillips v. Carew, 1 P. Wms. 
 nesses under such circumstances, de 117 ; 1 Ves. & B. 23 (2). 
 
 bene esse, see Shirliy v. Earl Per- 
 
 il) [See thefcrmof such a demurrer, Willis, 445. Also the form of 
 a bill to perpetuate testimony, lb. 311. And the affidavit, Harrison's 
 Pract. (Newl. ed.) 407. Look also at page 51, antp.] 
 
 (2) Laight v. Morgan, 2 C. C. E. 344 ; S. C. 1 J. C. 429.
 
 174 DEMURRERS. [CuAP. II. 
 
 single ground, that as he was the only witness there 
 was danger of losing all evidence of the matter be- 
 fore it could be given in a court of law : but in this 
 case an affidavit of the witness was annexed to the 
 bill (/). The principle on which it is required in 
 these cases to annex to the bill an affidavit of the 
 circumstances which render the examination of 
 [151] witnesses proper in a court of equity, though the 
 matter is capable of being made immediately the 
 subject of a suit at law, seems to be the same as 
 that on which the practice of annexing an affidavit 
 of the loss or want of an instrument to a ])!ll seeking 
 to obtain in a court of equity the mere legal effect 
 of the instrument is founded, namely, that the bill 
 tends to alter the ordinary course of the admin- 
 istration of justice, which ought not to be permit- 
 ted upon the bare allegation of a plaintiff in his 
 bill (1). 
 
 175 II. It has been before noticed, that the establish- 
 other court"" ^ ment of courts of equity has obtained throughout 
 ^rjjper jurisdic- tlic wliolc systcm of our judicial polity ; and that 
 
 most of the inferior branches of that system have 
 their peculiar courts of equity, the court of chancery 
 assuming a general jurisdiction in cases not within 
 the bounds, or beyond the powers of inferior jurisdic- 
 tions. The principal of the inferior jurisdictions in 
 England are those of the counties palatine of Chester, " 
 Lancaster, and Durham, the courts of great session 
 in Wales, the courts of the two universities of Oxford 
 
 (/) Shirley v Earl Ferrers, 4th N. ; 3 P. Wms. 77 ; M. 1730, 8 Vea- 
 Seal after Trin. Term, 1730. MS. 32. See above, p. 63, note (z). 
 
 (1) Laight V. Morgan, 2 C. C. E. 344.
 
 S. II. p. I.] DEMURRERS. 175 
 
 and Cambridge, the courts of the city of London and 
 of the cinqiie-ports (g) (1). These are necessarily 
 bounded by the locahty either of the subject of the 
 suit or of the residence of the parties litigant. 
 Where those circumstances occur which give them 
 jurisdiction they have exclusive jurisdiction in mat- 
 ters of equity as well as matters of law ; and they 
 have their own peculiar courts of appeal, the court [152] 
 of chancery assuming no jurisdiction of that nature, 
 though it will in some cases remove a suit before 
 the decision into the chancery by writ of certiorari. 
 When therefore it appears on the face of a bill that 
 another court of equity has the proper jurisdiction, 
 either immediately, or by way of appeal, the defend- 
 ant may demur to the jurisdiction of the court of 
 chancery. Thus to a bill of appeal and review of 
 a decree in the court of the county palatine of Lan- 
 caster the defendant demurred, because on the face 176 
 of the bill it was apparent that the court of chancery 
 had no jurisdiction ; and the demurrer was allowed 
 (A). But demurrers of this kind are very rare ; for 
 the want of jurisdiction can hardly appear upon the 
 face of the bill, at least so conclusively as is neces- 
 sary {i) to deprive the chancery, a court of general 
 jurisdiction, of cognizance of the suit ; and a de- 
 murrer for want of jurisdiction founded on locality 
 of the subject of the suit, which alone can exclude 
 the jurisdiction of the chancery in a matter cog- 
 
 (g) The court of exchequer, as a (h) Jennet v. Bishopp, 1 Vern. 
 
 court of equity, does not seem to give 184. 
 
 to any person the privilege of beiug (i) See 1 Ves. 203,204. 
 sued there. 
 
 (1) See notes, p. 6.
 
 176 DEMURRERS. [ChAP. IL 
 
 nizable in a court of equity, has even been treated 
 as informal and improper (k). This, however, can 
 only be considered as referring to cases where 
 circumstances may give the chancery jurisdiction, 
 and not to cases where no circumstance can have 
 that effect. Thus the .counties palatine having 
 their peculiar and exclusive courts of equity under 
 certain circumstances, which will be more fully 
 [153] considered in another place (/), the court of chan- 
 cery will not interfere when all those circumstances 
 attend the case, and they are shown to the court ; 
 though if those circumstances are not shown, or if 
 they are not shown in proper time, and the defen- 
 dant, instead of resting upon them and declining 
 the jurisdiction, enters into the defence at large, the 
 court, having general jurisdiction, will exercise it. 
 But where no circumstance can give the chancery 
 jurisdiction, as in the case alluded to of a bill of 
 
 1 ' ' appeal and review of a decree in a county palatine, 
 
 it will not entertain the suit, even though the defend- 
 ant does not object to its deciding on the subject. 
 
 m. Disability of HI. If a plaintiff" is not entitled to sue by reason 
 
 the plamtiff. ^ •' 
 
 of any personal disability (m), which is apparent in 
 the bill, the defendant may demur. Therefore, if 
 an infant, or a married woman, an idiot or a lunatic, 
 exhibiting a bill, appear upon the face of it to be 
 thus incapable of instituting a suit alone, and no 
 next friend or committee is named in the bill, the 
 defendant may demur (1) ; but if the incapacity does 
 
 (k) See Roberdeau v. Rous, 1 the court of chancery. 
 Atk. 543. (m) See Wartnaby v. Wartnaby, 
 
 (J) See pleas to the jurisdiction of 1 Jac. R. 377. 
 
 (1) [See the form of a demurrer, Willis, 449.]
 
 S. II. p. I.] DEMURRERS. 177 
 
 not appear upon the face of the bill, the defendant 
 must take advantage of it by plea. This objection 
 extends to the whole bill, and advantage may be 
 taken of it as well in the case of a bill for discovery 
 merely as in the case of a bill for relief. For the 
 defendant in a bill for a discovery merely, being 
 always entitled to costs after a full answer as a 
 matter of course, would be materially itnjured by 
 being compelled to answer a bill exhibited by per- 
 sons whose property is not in their own disposal, [154"] 
 and who are therefore incapable of paying the 
 costs. 
 
 IV. Interest in the subject of the suit (1), or a riffht i^' ^^ant of in- 
 
 J \ J' O terest or a title 
 to sue. 
 
 (1) If one or some of the co- plaintiffs be not interested in the sub- co-piaintiffs not 
 
 ject of the suit, the bill is demurrable : {Pa-ev. Townsend, 5 Sim. 395 ; a"'aragent!°°^ 
 Delondre v. Shaw, 2 Sim. 237,) as in the case of a mere agent con- 
 cerned with the subject matter of the suit, ( The King of Spain v. j\Ia- 
 
 chado, 4 Russ. 225;) or a trustee under a deed which never had any ^^^ a™vo1d^'- 
 
 operation as a valid instrument. Cuff v. Platel, 4 Russ. 242. stnunerit; 
 
 So where an indorsee of a bill of exchange brings an action against or a person for 
 
 the acceptor (a banker) who accepted the bill as agent for another (a ^ce™ed°a'bm 
 
 customer.) and refuses to pay on the ground that the indorsee is not of exchnnf^e, a 
 
 , .... ^ , , co-plaintift' with 
 
 the person authorized to receive tlie money by the party to whose or- such acceptor, 
 der it was made payable, and the acceptor files a bill of discovery in cQ^eryin°aid of 
 aid of his defence ; such a bill is demurrable, if the party for whom he ^^^ defence to 
 
 ' r J j,„ action agamst 
 
 accepted the bill is joined with him as a co-plaintifF: because there is the acceptor. 
 no contract between the indorsee and the party for whom the acceptor 
 has accepted the bill: the indorsee has nothing whatever to do with 
 that party, although he, and not the acceptor, is the person substan- 
 tially interested in the result of the action. 
 
 And if, in such a suit, the party to whose order the money was paya- 
 ble, is an officer of the government of a foreign country, and the 
 money forms part of a loan negotiated by the government of that coun- 
 try, and the government is changed, no question can be mised respect- 
 ing the right of a new government, or any one claiming through it, to 
 receive the money negotiated by the former government: for, in such 
 a suit, the question, who is beneficially entitled to the money, cannot 
 be discussed. G/yn v. Scares, 3 M. &K. 456. In this case tiie trea- 
 surer of the royal treasury of Portugal was the officer to whose order
 
 178 DEMURRERS. [ChAP. IL 
 
 in the thing demanded, and proper title to institute 
 
 179 a suit, concerning it (1), are essentially necessary to 
 
 the money was payable, as part of a loan negotiated by Don Miguel, 
 who was shortly afterwards succeeded by Donna Maria. 
 Reasons against Great evil might be occasioned if persons having no interest were 
 pTa^iufflfe^per- allowed to be made co-plaintiffd with others hiving an interest in 
 BODS having no the subject of the suit, ^ar instance, by an artful selection of co- 
 plaintiffs having no interest, a co-plainlifT having an interest might 
 thereby in-ure such a series of abatements, by a succession of deaths 
 and marriages, as would enable him to oppress the defendants, and 
 prevent the suit from ever reaching a stage in which the expense might 
 be made to recoil upon himself. And if a defendant had occasion to 
 file a cross-bill, he would be obliged to make the other co-plaintifts 
 defendants thereto. Again, a plaintiff out of the jurisdiction of the 
 court might escape from giving security for costs, by joining, as a co- 
 plaiiiliff, a person having no interest, but residing within the jurisdic- 
 tion. And all the plaintiffs who have an interest in the suit might 
 die and leave those who have no interest to carry on tlie suit. Arg. of 
 counsel in The King of Spain v. Machado, 4 Russ, 225. 
 Exception in the Where a bill is filed against a trustee for a breach of trust, but two 
 pufntiffs ^Md** °^ ^^^ co-plaintiffs induced the trustee to commit such breach of trust, 
 others. and gave him an indemnity in respect thereof, still, if the other co- 
 
 plaintiffs are infants, and the objection is not taken until the hearing, 
 it will be overruled, Wilkinson v. Parry, 4 Russ. 272. 
 Bill by an uncer- (0 An uncertificated bankrupt cannot call on his assignees for a 
 tificated bank- general account of all their transactions, which he might have by ap» 
 
 nipt against his ° ' & j r 
 
 assignees. p'y'"g to the court of bankruptcy. Tarleion v. Hornby, 1 Y. & C. Eq. 
 
 Ex. 172. 
 Bill by a bank- ' But if the assignees of a bankrupt fraudulently and collusively sell 
 assign^T'and a ^is estate while he is proceeding to get his commission superseded, he 
 ^rchaser from may file a bill against them and the purchaser, to set aside thesale, on 
 the ground of fraud and collusion, if the purchaser has not come in un- 
 der the' commission, so that the court of review has no jurisdiction over 
 him, and if the bankrupt has settled with all his creditors, and they 
 have consented to the commission being superseded. Lau'oiir v. Hol- 
 combe, 8 Sim. 76. 
 Bill by an in- And a bill by an insolvent to set aside an assignment by his as- 
 solvent, signee of his interest under a will, on the ground of a special case of 
 collusion between his assignees and the executors, is not demurrable. 
 Burton V. Jayne,! Sim. 24:. The counsel for the insolvent, in this 
 case, urged that the collusion, and the fact that the Insolvent Debtors' 
 Court had no power to set aside deeds, were Sufficient to maintain thje 
 bill.
 
 S. II. p. I.] DEMURRERS. 17^ 
 
 sustainabill; and if they are not fully shown by the 
 bill itselfthe defendant may demur (w) (1). There- 
 fore, where a protestant next of kin claimed a rent- 
 charge settled on a papist on her marriage, a de- 
 murrer was allowed (/?), for the plaintiff had evi- 
 dently no right to the thing which he demanded by 
 his bill, the papist being incapable of taking by 
 purchase (2), and the grant of the rent-charge being 180 
 
 therefore utterly void. And where a plaintiff claim- 
 ed under a will, and it was apparent upon the con- 
 struction of the will that he had no title, a demurrer 
 was allowed (o) (3). But in this case it was said, 
 that if upon arguing the demurrer the court had 
 not been satisfied, and had been therefore desirous 
 that the matter should be more fully debated at a 
 deliberate hearing (j?), the demurrer would have 
 
 (m) See 2 Sell. & Lefr. 638 ; Dar- Free, in Chan. 589 ; Parker v. 
 
 thez V. Winter, 2 Sim. & Stu. 536; Fearnley,2 Sim. & Stu. 592. 
 
 (n) See Michaux v. Grove, 2 Alk. {p) Perhaps this declaratien fell 
 
 210. from the court rather incautiously ; 
 
 (o) Brownsword v. Edwards, 2 as a dry question upon the construc- 
 
 Ves. 2 13. See also Beech v. Crull, tion of a will may be as deliberately 
 
 (1) [if, of several complainants, some have an interet^t in the matter 
 of tlie ^uit, and others hrtve no interest in it, but are merely the agents 
 of their co-plain! iffn, a general demurrer to tl:e whole bill is a good de- 
 fence. King of Spain V . Machado, 4 Russ. 224; and see Cuff v.-Pla^ 
 tell, lb. 242 ; Clarkson v. De Peyster, 3 Paige's C. R. 339.] 
 
 (2) This disability was abolished by the stat. 10 Geo. IV. c. 7, s. 23. 
 
 (3) [See the form of a demurrer, Willis, 154.] 
 
 On bill by claimant under a decree of real property, filed for disco- 
 very relative thereto and for account, the principle vva.s recognized on 
 demurrer that to entitle himself to a discovery, he must ?how a perfect 
 prima facie title, before he can call on the party in possession to dis- 
 close his. Van Kleeic v. The Reformed Du'ch Church, on ajjirmance of 
 S. C. ; The Reformed Dutch Church, V. C, 6 Paige R. 606^ et seq. 
 In Error, 20 Wend. R. 458. 507.
 
 180 DEMURRERS. [ChAP. II. 
 
 been overruled without prejudice to the defend- 
 ant's insisting on the same matter by way of answer 
 [155] (^), which indeed it should seem may in all cases 
 be done without the special declaration of the court, 
 that the overruling of the demurrer shall be with- 
 out prejudice. 
 
 Though the plaintiff in a bill may have an interest 
 in the subject, yet if he has not a proper title to in- 
 stitute a suit concerning it, a demurrer will hold (?•) 
 
 181 (!)• Therefore, where persons who had obtained 
 letters of administration of the estate of an intestate 
 in a foreign court, on that ground filed a bill seeking 
 an account of the estate, a demurrer was allowed 
 
 determined upon argument of a de- (r) It seems the plaintiiF must dis- 
 
 murier as at the hearing of a cause tinctly show a title iu equity ; for, 
 
 in the ordinary course ; and the dif- where one stated a title either at 
 
 ference in expense to the parties may law or in equity, a demurrer was al- 
 
 be considerable. See above, p. 130, lowed. Edwards v. Edwards, 1 
 
 note (n). Jac. R. 335. 
 (9) 2 Ves. 247. 
 
 Consent of cred- (1) See note, p. 179. The clause in the Insolvent Debtors' Act, 
 assi^ees ^of ' ^ ^ ^^^- ^^' ^' 119, s. 11, requiring the consentof the major part in value 
 insolvent of the creditors to the institution of a suit, was inserted for the benefit 
 
 of the creditors alone; so that the want of such consent cannot be 
 or bankrupt urged as an objection by a defendant in a suit by th/e assignees. Piercy 
 
 V. Roberts, 1 M. & K. 4. And the same is the case with regard to 
 
 suits by the assignees of bankrupts. Gerothwohl v. Cochrane, 5 Law 
 
 J. (N. S.) 47, M. R. 
 Necessity for Where a person files a bill against the directors of an unincorpo- 
 
 plaintiff's show- rated ioint-stock company, in respect of a fraud committed by them on 
 ing his title. f J v j 
 
 the shareholders; and by the rules of the company, as stated in the 
 
 bill itself, no transfer of shares is to be valid, unless the purchaser shall 
 have been approved of by a board of directors, and shall have executed 
 a proper instrument binding himself to the observance of the regula- 
 tions of the company ; and the plaintiff in such bill alleges that he pur- 
 chased and is the holder of shares, but he does not set forth his title as 
 purchaser, or state that he had complied with the condition precedent 
 above mentioned ; the bill is demurrable on that account. Walburn 
 V. Ingilby, 1 M. & K. 61.
 
 S. II. p. I.] DEMURRERS. ' 181 
 
 ;(s), because the plaintiffs did not show by their bill 
 a complete title to institute a suit concerning the 
 subject ; for though they might have a right to ad- 
 ministration in the proper ecclesiastical court in 
 England, and might therefore really have an interest 
 in the thing demanded by their bill, yet, not showing 
 that they had obtained such administration, they 
 did not show a complete title to institute their suit 
 (1). And where an executor does not appear by his 
 bill to have proved the will of his testator, or ap- 
 pears to have proved it in an improper (t) or insuf- 
 ficient (u) court, as he does not show a complete 
 title to sue as executor, a demurrer will hold (2). 
 
 Want of interest in the subject of a suit, or of a 
 title to institute it, are objections to a bill seeking 
 any kind of relief, or filed for the purpose of dis- 
 covery merely. Thus, though there are few cases 
 in which a man is not entitled to perpetuate the 
 testimony of witnesses, yet if upon the face of the 
 bill the plaintiff" appears to have no certain right to 
 or interest in the matter to which he craves leave 
 to examine, in present or in future (x), a demurrer 
 
 (s) Tourton v. Flower, 3 P. Wms. 76G. 
 
 369. (x) Smith v. Alt. Gen. in Chan. 
 
 (0 3 P. Wms. 37k Mich. 1777 ; 6 Ves. 260; Allan v. 
 
 (u) Comber's Case, 1 P. Wms. ^//an, 15 Ves. 130. 
 
 (1) Although a prerogative administration must be obtained before 
 
 money can be paid out of court, and in Young v. Elworihy, 1 M. &. K. ro^aUvo ndmin- 
 215, !Sir Jolin Leach held that it was nece.-sary to produce a prerocra- '"''."''RZ? ^° '^° 
 
 • J r r b plaintiff. 
 
 tive administration before tlie decree tan be drawn up; yet a suit may 
 be commenced without such an admini-ii ration, and cannot be stopped 
 by demurrer on account of that circumstance. Melcalfe v. Metcalfe, 
 1 Keen, 74. 
 
 (2) [2 Hayward, 157. S. P. as to an administrator. Macnamara v. 
 Sweetman, 1 Hogan, 29. And see the form of a demurrer in such a 
 case, Equity Draft. 84.] 
 
 17 
 
 [156]
 
 182 DEMURRERS. [ChAP. II. 
 
 will liold. Therefore, where a person claiming as 
 devisee in the will of a person living, but a lunatic, 
 brought a bill to perpetuate the testimony of wit- 
 nesses to the will against the presumptive heir at 
 law {y) ; and where persons who would have been 
 entitled to the personal estate of a lunatic if he had 
 been then dead intestate, as his next of kin, sup- 
 posing him, legitimate, brought a bill, in the life-time 
 of the lunatic, to perpetuate the testimony of wit- 
 nesses to his legitimacy, against the attorney-gen- 
 eral as supporting the rights of the crown (z), de- 
 murrers were allowed. For the parties in these 
 cases had no interest which could be the subject 
 of a suit ; they sustained no character under which 
 ]^g3 they could afterwards use the depositions (a), and 
 
 therefore the depositions, if taken, would have 
 been wholly nugatory. 
 
 So in every case where the plaintiff in a bill 
 shows only the probability of a future title upon an 
 event which may never happen he has no right to 
 [157] institute any suit concerning it ; and a demurrer 
 will hold to any kind of bill on that ground which 
 will extend to any discovery as well as to relief (&). 
 
 If the claim of the plaintiff is of a matter in it- 
 self unlawful, as of money promised to a counsellor 
 
 (y) Sackvillv. Ayleworth, I Yera. Ves. 133, 136. 
 
 105 ; 1 Eq. Cd. Ab. 234 ; Smit/i v. (a) See 2 Prax. Aim. Cur. Can. 
 
 Watson, \n Chain. 20 June, 1760 ; 2 501 ; and see The Earl of Belfast 
 
 Prax. Aim. Cur. Cane. 500, where v. Chichester, 2 Jac. & W. 4S9. 
 
 there is the form of a demurrer. (1). (i) Sackvill v. Aylewortk, Vein. 
 
 (z) Smith V. Att. Gen. in Chan. 105 ; 1 Eq. Ca. Ab. 234 ; Smith v, 
 
 Mich. 1777; 6 Ves. 256,260; 15 .4«. Gen. Mich. 1777. 
 
 (1) [See a better form, note (i), Willis, 452. Also a precedeut, in 
 Equity Draft. 85.]
 
 S. II. p. I.] DEMURRERS. 183 
 
 at law for advice and pains in carrying on a suit (r) ; 
 or of money bequeathed by a will to purchase a 
 dukedom (d) ; the defendant may demur to the bill, 
 for the plaintiff not having a lawful claim has no 
 title to sue in a court of justice. 
 
 There are grounds of demurrer to a bill for a dis- 
 covery merely as well as to a bill for relief But 
 if a plaintiff shows a complete title, though a liti- 
 gated one, or one that may be litigated, as that of 
 an administration, where a suit is depending to 
 revoke the administration (e) ; or of an administrator 
 where there may be another personal represent- 
 ative (/); a demurrer will not hold, at least to dis- 
 covery. For in the first case, till the litigation is 
 determined the plaintiff's title is good, and in the 184 
 
 second case, the court will not consider the eccle- 
 siastical court as haviuij done wrono^. And where 
 a doubtful title only is shown it is necessarily suffi- 
 cient to support a bill seeking the assistance of the 
 court to preserve property in dispute pending a liti- 
 gation. Therefore where a suit was pending in [158] 
 an ecclesiastical court touching the representation 
 to a person deceased, a demurrer of one of the 
 parties to that suit, who had possessed the personal 
 estate of the deceased, to a bill for an account filed 
 by the other party was overruled (g). The ground 
 of this decision seems to have been the deficient 
 powers of the ecclesiastical court for securing the ef- 
 
 (c) Penrice \. Parker, Rep. Temp. {g) Phipps v. Steward, 1 Atk. 
 
 Finch. 75 ; and see Moor v. Rowe, 28G. And see Andreics v. Powys, 
 
 1 Rep. in Cha. 38 ; 2 Atk. 332. 2 Brown, P. C. 504, Toml. Ed. See 
 
 (rf) Earl of Kingston v. Lady also Wills v. Rich, 2 Atk. 285 ; and 
 
 Pierepont, 1 "Vera. 5. Morgan v. Harris, 31 Oct. 1786- 
 
 (e) Wright V. Blicke, Ibid. lOG. Demurrer overruled, 2 Bro. C. C. 
 
 (/) 3 P. Wms. 370. 121.
 
 184 DEMURRERS. [ChAP. II. 
 
 fects whilst the suit there was depending; and the 
 doubt as to the title of the parties was the very 
 ground of the application to the court. 
 vit7i^etween"' ^- ^ pkiutiff may have an interest in the sub- 
 defeildmt. """^ ject of liis suit, and a right to institute a suit con- 
 cerning it, and yet may liave no right to call on a 
 defendant to answer his demand. This may be 
 for want of privity between the plaintiff and defen- 
 dant. Thus, though an unsatisfied legatee has 
 an interest in the estate of his testator, and a riorht 
 to have it applied to answer his demands in a due 
 course of administration, yet he has no right to in- 
 stitute a suit against the debtors to his testator's 
 estate for the purpose of compelling them to pay 
 their debts in satisfaction of his legacy (h) (1). 
 ]^g5 For there is no privity between the legatee and the 
 
 debtors, who are answerable only to the personal 
 representative of the testator ; unless by collusion 
 between the representative and the debtors, or other 
 [159] collateral circumstance, a distinct ground is given 
 for a bill for the legatee against the debtors (h). 
 So a bill fil6d by the creditors of a person who was 
 one of the residuary legatees of a testator, against 
 the executors of the testator, the other residuary 
 legatees, and the executrix of their debtor, was 
 dismissed (i) (2). 
 
 (rt) Bickly v. Dorrington, 10 Rowley, 6 Ves. 748 ; and ihe cases 
 
 March, 1736, Rolls, 12 Nov. 1737 ; there cited and referred to. 9 Ves. 
 
 Lord Chan, on Appeal, cited Bar- 86. 
 
 nard, 32 ; and 6 Ves. 749 ; Mo7ik v. (A) 3 Madd. 159. 
 
 Pomfret, cited ibid. ; Alsager v. (i) Elmsley v. M'Aulay, 3 Bro. 
 
 (1) [See the form of a demurrer in such a case, Willis, 456 ; and 
 note (a) there.] 
 
 (2) W'here one of two executors was a partner with the testator, the
 
 S. TI. P. I.] DEMURRERS. ' 185 
 
 But where an agent has been employed, his prin- 
 cipal has in many cases a right to a discovery of 
 his transactions, and to demand the property with 
 which he has been intrusted, or the value of it, 
 against those with whom the agent has had deal- 
 ings ; and therefore, where a merchant who had em- 
 ployed a factor to sell his goods filed a bill against 
 the persons to whom the goods had been sold, for 
 an account, and to be paid the money for which the 
 goods had been sold, and which had not been paid 
 to the factor, a demurrer was overruled {k). So -*-°^ 
 
 where a merchant acting upon a commission del 
 credere became bankrupt, having sold goods of. his 
 principals for which he had not paid them, and 
 shortly before his bankruptcy drew bills on the ven- 
 dees, which he delivered to some of his creditors to 
 discharge their demands, they knowing his insol- 
 vency, a suit by the principals was maintained against 
 the persons who had received the bills for an account 
 and payment of the produce. But the book-keeper [l^^] 
 of the bankrupt having been made a party, as one 
 of the persons to whom bills had been so delivered, 
 and having denied that fact by his answer, he was 
 not compelled to answer to the rest of the bill, 
 which, independent of that fact, was, as to him, a 
 mere bill for discovery of evidence (/). 
 
 C. C. 624. And see Utlcrson v. {k) Lisset \. Reave, 2 Alk. 39i. 
 
 Mair, Vernon and others, on demur- (/) Neuman v. Godfrey, 2 Uro. C 
 
 rer, 10 April, 1793, 2 Ves. Jun. 05 ; C. 332 ; 2 Ves. Jun. 457. See Att. 
 
 S. C. 4 Bro. C. C. 270. Gen. v. Skinner's Comp. 5 Madd. 
 
 residuary legatees may sustain a bill against the executors for an ac- Biiibya reiidu- 
 count of the partnership transactions, although collusion between them against" a co ex- 
 is neither charged nor proved ; for the rule that the legatee cannot sue «^^'°''^* "*''■ 
 a debtor to the estate does not apply to a co-executor who is a debtor 
 to the estate. Cropper v. Knapman,2 Y. & C. Eq. Ex. 338.
 
 186 DEMURRERS. [ChAP. II. 
 
 yi. Want of in VI. The plaintiff iTiust by his bill show some claim 
 
 tereatin the de- £ J 
 
 fondant. ^^ interest in the defendant in the subject of the 
 
 snit (m) (1), which can make him liable to the plain- 
 tiff' s demands, or the defendant may demur (n). 
 
 187 Therefore, if a bill is filed to have the benefit of, or 
 to impeach an award, and the arbitrators are made 
 parties, they may demur to the whole bill, as well 
 to discovery as relief (o) (1) ; for the plaintiff can have 
 
 [161] no decree against them, nor can he read their answer 
 against the other defendants. Indeed, where an 
 award has been impeached on the ground of gross 
 misconduct in the arbitrators, and they have been 
 made parties to the suit, the court has gone so far 
 as to order them to pay the costs {p) ; and probably, 
 
 173, particularly at p. 194. But see Bowles v. Stewart, 1 Sch. & Lefr. 
 
 Cookson V. Ellison, 2 Bro. C. C. 209 ; ib. 227 ; 1 Meriv. 123. And 
 
 252, and the other subsequent cases this observation of course applies 
 
 on the necessity of answering fully, more strongly where the parties may 
 
 See below, Chap. 2, sect. 2, part 3. be interested, but cannot otherwise 
 
 (m) See Dowlin \. Macdougnll, be made defendants for want of pri- 
 
 1 Sim. & Stu. 367. vity. See 3 Barnard, 32 ; Doran v. 
 
 (n) 2Eq. Ca. Ab. 78. There are, Simpson, 4 Ves. 651 ; 6 Ves. 750 ; 
 however, instances in which persons 9 Ves. 86 ; Salvidge v. Hyde, 5 
 not interested in the subject of dis- Madd. 138; S. C. 1 Jac. R. 151. 
 pute, may by their conduct so involve (o) Steward v. E- I. Comp. 2 
 themselves in the transaction relating Vern. 380. See 14 Ves. 254 ; Good- 
 to it, that they may be held liable to 7nan v. Sayers, 2 Jac. & W. 249. 
 costs ; and under such circumstances (p) Lingood v. Croucher, 2 Atk* 
 it seems they cannot demur to the 395; Chicot v. Lequesne, 2 Ves. 
 bill, if the fraudulent or improper con- 315 ; and the case of Ward v. Pert- 
 duct b' charged, and the costs be «m, cited ib. 316; 1 Turn. R. 131, 
 prayed against them. See 7 Ves. 288 ; . note ; Lord Lonsdale v. Littledale, 
 14 Ves. 252 ; Le Texier v. Mar- 2 Ves. Jun. 451 ; 14 Ves. 252. 
 gravine of Anspach, 15 Ves. 159 ; 
 
 d) A mere alleeation tPiat a defendant "claims an interest" in the 
 
 Allegation of ^ ' " , ■ i • . r 
 
 elaiming an in- subject-matter, without showing how or why he so claims, is not suf- 
 
 '^* ' ficient to avoid a demurrer on the ground of a want of interest. Plumbe 
 
 V. Plumbe, 4 Y. & C. 345. 
 
 (2) [See the form of such a demurrer, Willis, 458.]
 
 S. II. p. I.] DEMURRERS. 187 
 
 therefore, in such a case a demurrer to the bill would 
 not have been allowed. A bankrupt made party to 
 a bill against his assignees touching his estate may 
 demur to the relief, all his interest being transferred 
 to his assignees (</) ; but it seems to have been 
 generally understood, that if any discovery is sought 188 
 
 of his acts before he became a bankrupt, he must 
 answer to that part of the bill for the sake ,of disco- 
 very and to assist the plaintiff in obtaining proof, 
 thouofh his answer cannot be read acrainst his as- 
 signees ; and otherwise the bankruptcy might en- 
 tirely defeat justice (r). Upon the same principle 
 it seems also to have been considered, that where 
 a person having had an interest in the subject of 
 a bill has assigned that interest, he may yet be 
 compelle'd to answer with respect to his own acts 
 before the assignment. 
 
 It is difficult to draw a precise line between the 
 cases in which a person having no interest may be L-'^^iJ 
 called upon to answer for his own acts, and those in 
 which he may demur, because he has no interest 
 in the question. Thus, where a creditor who had 
 obtained execution against the effects of his debtor 
 filed a bill against the debtor, against whom a com- 
 mission of bankrupt had issued, and the persons 
 claiming: as assignees under the commission char- 
 
 {q) Whitworth v. Davis, 1 Ves. against liim, he could not demur, ib. 
 
 & Bea. 545; S. C. 2 Rose, B. C. and 15 Ves. 164. See also King v. 
 
 116 ; Bailey v. Vincent, 5 Madd. 48 ; Martin, 2 Ves. Jun. 641. 
 
 Lloyd y. Lander, 5 Madd. 282 ; (1) (?) Upon this paswage see I Vea. 
 
 but, it seems, that if fraud were & Bea. 548, 549, 550. 
 charged and costs were prayed 
 
 < 
 
 (1) [And see Willis on Pleading, note (b), p. 458.]
 
 188 DEMURRERS. [ChAP. II. 
 
 <Tinff that the commission was a contrivance to de- 
 feat the plaintiff's execution, and that the debtor 
 having by permission of the plaintiff possessed part 
 of the goods taken in execution for the purpose of 
 sale, and instead of paying the produce to the plain- 
 tiff had paid it to his assignees, a demurrer by the 
 alleged bankrupt, because he had no interests, and 
 might be examined as a witness, was overruled, 
 and the decision affirmed on rehearing (s). A dif- 
 
 189 ference has also been taken where a person con- 
 cerned in a transaction impeached on the ground 
 of fraud has been made party to a bill for discovery 
 merely (t) ; or as having the custody of an instru- 
 ment for the mutual benefit of others (ii). 
 
 To prevent a demurrer a bill must in many cases 
 not only show that the defendant has an interest in 
 the subject, but that he is liable to the plaintiff's 
 demands {x). As where a bill was brought upon a 
 [163] ground of equity by the obligee in a bond against 
 the heir of the obligor, alleging that the heir having 
 assets by descent ought to satisfy the bond ; because 
 the bill did not expressly allege that the heir was 
 bound in the bond, although it did allege that the 
 heir ought to pay the debt, a demurrer was allowed 
 (y) (1). So where a bill was brought by a lessor 
 against an assignee touching a breach of covenant 
 
 (^s) King V. Martin and others, as particeps critrtinis, m suitport o{ a 
 
 25 July 1795, rep. 2 Ves. Juii. 641. transaction impeached as I'raudulent. 
 
 (t) Cotionw. [jutir ell, Tnn. 1738; («) 3 Atk. 701. 
 
 Benvet v. Vade, 2 Atk. 324 ; See (x) See Ryves v. Ryves, 3 Ves. 
 
 above, p. 186, note (n). See "also 343. 
 
 B/'irfg-znan V. Green, 2 Ves. 627, 629, (y) Crosseing v. Honor, I Vern. 
 
 as to the evidence of a person charged 180. 
 
 (1) [See the form of such a demurrer, Willis, 460.]
 
 S. II. p. I.] DEMURRERS. 189 
 
 in a lease, and the coven^^nt, as stated in the bill, 
 appeared to be collateral, and not running with the 
 land, did not therefore bind assigns, and was not 
 stated by the bill expressly to bind assigns, the 
 assignee demurred, and the demurrer was al- 
 lowed (z). 
 
 VII. If for any reason founded on the substance J[^i. Want oj^ti^ 
 
 of the case as stated in the bill, the plaintiff is not p"^^^^*^' 
 entitled to the relief he prays, the defendant may 
 demur. Many of the grounds of demurrer already 190 
 
 mentioned are perhaps referable to this head ; and 
 in every instance, if the case stated is such that ad- 
 mitting the whole bill to bettrue the court ought^not 
 to give the plaintiff the relief or assistance he re- 
 quires in the whole or in part, the defect thus 
 appearing on the face of the bill is sufficient ground 
 of demurrer (^i) (1). 
 
 VIII. It is the constant aim of a court of equity viil want of 
 to do complete justice by deciding upon and settling 
 
 the rights of all persons interested in the subject of [164] 
 
 the suit, to make the performance of the order of 
 
 the court perfectly safe to those who are compelled 
 
 to obey it, and to prevent future litigation (b). For General ruie &• 
 
 this purpose all persons materially interested in the '°p"^^'' 
 
 (z) Lord Uxhridge v. Staveland, (h) See Knight v. Knight, 3 P. 
 
 1 Vee. 56. Wme. 331. But see also Cullen v. 
 
 (a) 1 Ves. 245 ; 2 Sch. &. Lefr. Duke of Queensberry, 1 Bro. C. C. 
 
 638 ; 6 M^dd. 95. 101. 
 
 (1) [A demurrer for want of equity cann't be snstainod, unless the 
 court is satisfied that no discovery or proof properly called for by, or 
 founded upon the allegations in the bill, can make the subject matter of 
 the suit a proper case for equitable cognizance. Bleeker v. Bingham, 
 3 Paige's C. R., 246. See the form of a general demurrer for want of 
 equity, Willis, 461.]
 
 190 DEMURRERS. [ChAP. II. 
 
 subject ought generally to be parties to the suit, 
 plaintiffs or defendants, however numerous they 
 may be, so that the court may be enabled to do com- 
 plete justice by deciding upon and settling the rights 
 of all persons interested, and that the orders of the 
 court may be safely executed by those who are com- 
 pelled to obey them, and future litigations may be 
 prevented (c) (1). 
 theSdktlon*^ This general rule, however, admits of many quali- 
 fications (2). When a person who ought to be a party 
 
 191 is out of the jurisdiction of the court (3), tliat fact be- 
 ing stated in the bill, and admitted by the defend- 
 ants, or proved at the hearing, is in most cases a suffi- 
 cient reason for not bringing him before the court; 
 
 (c) 3 P. Wms. 333, 334 ; 2 Atk. 3 Ves. &, Bea. 182 ; 1 Sch. & Lefr. 
 • 51 ; 7 Ves. 563 ; 12 Ves. 53 ; 1 298. 
 Meriv. 262 ; Beaumont v. Meredith, 
 
 (1) See note on Parties, at the end of the bonk. 
 
 (2) [ Wendell v. Van Rensselaer, 1 J. C. R. 349 ; Wilson v. Hamil- 
 toHyOii appeal, 9 J. R. 442 ; Haines v. Beach, 3 J. C. R. 459; Ens- 
 worth. V. Lambert, 4 lb. 605 ; Trescott v. Smith, 1 M'Cord's Cha:i. R. 
 301 ; Johnson v. Rankin, 2 Bibb, 184 ; Newman v. Kendal, 2 Marsh. 
 234; Popev. Malone, lb. 240; Hoy v. MMurdy, 1 LiU. 370; Whe- 
 Ian V. Whelan, 3 Cowen, 537 ; Fellows v. Fellows, 4 lb. 682 ; Colt v. 
 Lasnier, 9 lb. 320 ; Edwards tm Parties, 1, 2, 3. 
 
 Although all persons interested must be made parlies to bills for re- 
 lief, yet this is not necessary as to bills for discovery. Trescott v. 
 Smith, 1 M'Cord's Chan. R. 301. But see Plunket v. Penson, 2 
 Atk. 51.] 
 
 One exception to the general rule, that all materially interested must 
 be parties, is, when a decree in relation to the subject matter in litiga- 
 tion can be made, without a person who has that interest, having that 
 interest iti any way concluded by the decree. Where the party is not 
 amenable to the process of the court, or wiiere no beneficial purpose is 
 to be effected by making him a party, such interest mu-t be a riglit in 
 the subject of controversy which may be affected by a decree in the 
 suit. Story v. Livingston, 1 3 Peters, 375, 6. 359. 
 
 (3 . See note on Parties at the end of the book.
 
 S. II. p. I.] DExHURRERS. 191 
 
 and the court will proceed without him against the 
 other parties, as far as circumstances will permit 
 {d). It is usual, however, to add the name of a 
 person out of the jurisdiction of the court as a party 
 to the bill, so far as may be necessary to connect 
 his case with that of the other parties ; and the bill 
 may also pray process against him in case he should [165] 
 become amenable to such process ; and if in fact 
 he should become so amenable pending the suit, 
 he ought to be brought before the court either by 
 issuing process against him, if process should have 
 been prayed against him, and if not, by amending 
 the bill for that purpose, if the state of the proceed- 
 ings will admit of such amendment, or by supple- 
 mental bill if they will not {e) (2). If a person so 
 out of the power of the court is required to be an 
 active party in the execution of its decree, as where 
 a conveyance by him is necessary, or if the decree 192 
 
 ought to be pursued against him, as the foreclosure 
 of a mortgage against the original mortgagor, or 
 his representative or assign, the proceedings will un- 
 avoidably be to this extent defective (/). A foreign 
 
 (d) 1 Ves. 385; and see Cowslad parties, the court, it seems, will act 
 
 V. Celij, Prec. in Chan. 83 ; Dar- upon it ; 1 Sch. & Lefr. 240. 
 
 wentv. Walton, 2 Atk. 510; Wil- (e) See Haddock v. Thomlinson, 
 
 Hams V. Whinyates, 2 Bro. C. C. 2 Sim. & Stu. 219. 
 
 399 (1) ; and, if the disposition of the (/) Fell v. Brown, 2 Bro. C. C. 
 
 property be in the power of the other 277 ; see above, p. 34. 
 
 (1) [Milligan v. Millelge, 3 Grand), 220 ; Laviharl v. Reilly, 3 De- 
 sau, 590.] 
 
 (2) Where a defendant is out of the jurisdiction, it is usual and ex- frajcrofpro- 
 pedientto pray that process may issue against him when he shall come 
 within tlie jurisdiction, but the omission of his namf in tlie prayer of 
 process does not render the record defective. Haddock v. Thomlinson, 
 2 S. & S. 219. 
 
 ceis.
 
 192 DEMURRERS. [ChaP. II. 
 
 corporation not amenable to the jurisdiction of the 
 court falls within this description, and a corporation 
 in Scotland is considered for this purpose as a 
 foreign corporation (g). 
 General rule as Whcu thc objcct of a sult is to charn^e the per- 
 
 to parties to a •' . 
 
 the pers'o^nar soual propcrty of a deceased person with a demand, 
 deceased par^, it IS generally sufficient to biing before the court 
 
 or a suit on be- ■. • i i i i 
 
 half of many tlic pcrsou constitutCQ bv law to represent that pro- 
 persons in the * ^ i i 
 
 same interest, pcrty, aud to auswcr all demands upon it (1) ; and 
 the difficulty of bringing before the court, in some 
 cases, all the persons interested in the subject of a 
 [166] suit, has also induced the court to depart from the 
 general rule (/i), where the suit is on behalf of many 
 in the same interest, and all the persons answering 
 that description cannot easily be discovered or as- 
 
 dTtor^es^t^ "^' certained (1). Thus a few creditors may substanti- 
 ate asuiton behalf of themselvesandtheothercredi- 
 tors (1) of their deceased debtor, for an account 
 
 (g) Att. Gen. v. BaUol Coll. in Ves. 321 ; Beaumont v. Meredith, 3 
 
 Ch. 10 Dec. 1744 ; Lord Hardicicke, Ves. & Bea. 180 ; Meux v. Maliby, 
 
 as to the University of Glasgow. 2 Swanst. 277, and cases there cited ; 
 
 (h) Free, in Chau. 592 ; Pearson and see below, 196, notes («) and 
 
 V. Belchier, 4 Ves. 627 ; Lloyd v. (x) ; Ellison v. Bignold, 2 Jac. &. 
 
 Louring, % Ves. 773 ; 11 Ves. 367 ; W. 503; Manning v. Thesiger, 1 
 
 Adair v. New River Camp. 11 Ves. Sim. & Stu. 106 ; Gray v. Chaplin, 
 
 429; Cockburn v. Thompson, 16 2 Sim. & Stu. 267. 
 
 (1) See note on Parties at the end of the book. 
 
 [Wiser v. Bla-Jily, 1 J. C. R. 437; Brown v. Rickeits, 3 lb. 553 ; 
 Coll V. Lasnier, 9 Cowen's R. 320.] 
 
 Where complainants are regularly and properly united in seeking 
 satisfaction from subj ^cts against which as creditors of the defendants, 
 they can properly claim, the bill is a creditor's bill. It is not irregular 
 for two sets of creditors, two mercantile firms, to unite as complainants 
 in equity, in a creditor's bill ; and where some of the members of tiiose 
 firms were common to both, the bill was not multifarious when filed 
 against the personal representatives of two of the deceased partners of 
 the two firms; and a'so against the surviving partner of one of the 
 firms. The creditor of a partnership may at his option proceed
 
 S. II. p. I.] DEMURRERS. 193 
 
 and application of his assets, real as well as per- 
 sonal, in payment of their demands (1) (/) ; and the 
 decree being in that case applied to all the creditors, 
 the other creditors may come in under it and obtain 
 satisfaction of their demands equally with the plain- 
 tiffs in the suit ; and if they decline to do so, they will 
 be excluded the benefit of the decree, and will yet be 
 considered as bound by acts done under its authori- 
 ty (k). As a single creditor may sue for his demand 
 
 (i) 2 Ves. 313 ; Law v. Rigby, 4 (i) See Good v. Blewitt, 19 Ves. 
 Bro. C. C. 60 (1). 336, and Angell v. Haddon, 1 Madd. 
 
 R. 529 (3). 
 
 at lnw aizainst the surviving partner, or jro in the first instance into 
 equity against the representatives of deceased partner. It is not neces- 
 sary for him to exhaust his remedy at law against tlie surviving part- 
 ner before proceeding in equity agiinst the estate of the deceased. Nel- 
 son et al. V. Hill et alb Howard R. 127. 131. 133, 4. 
 
 (1) But in this as in all other cases where some persons may come 
 into court as plaintiffs for themselves, and others having similar inte- 
 rests, those who by name bring the suit and constitute the parties on 
 record must have themselves an interest in the subject matter which 
 enables them to sue, and the others are treated as a kind of co-plain- 
 tiffs, though not named ; but whereas in case of a public corporation 
 filing a bill on behalf of themselves and the citizens of the place, 
 alleging a public nuisance and a&king an injunction, it was held, the 
 corporation not havinij shown that they were Ihe owners of the pro- 
 perty liable to be afiected by the nuisance and were so affected, so 
 as that they had suffered a special damage, and not merely as a corpo- 
 rate autliority to take care of and protect the interests of the citizens, 
 had no such interest as enabled them to sue in their own name. Cil]] 
 of Georgetown v. Alexandria Canal Comjany, <SfC., 12 Peters, 91. 
 
 (2) [Hendricks v. Robinson, 2 J. C. R. 283 ; Brown v. Ricketls, 3 lb. 
 553; Brinkerhojf \ . Brown, 6 lb. 139; see the last case considered in 
 Felloios V. Fellows, 4 Cowen's R. i:82; and see Fish v. Howland, 1 
 Page's C. R. 20; Egberts v. Wood, 3 Paige's C. R. 617; Burney v. 
 Morgan, I S. & S. 358.] 
 
 (3) [And see Neve v. Weslon, 3 Atk. 557; Young v. Everest, 1 
 Russ. & M. 426 ; Shubrick v. Shubrick, 1 M'Cord's C. R. 407. To 
 enable a creditor to come in under a decree and prove a claim which 
 is not stated or referred to in the ph.adings or proofs in the cause, he
 
 193 DEMURRERS. [ClIAP. IL 
 
 out of personal assets, it is rather matter of conveni- 
 enccthan of indulgence topermitsuch a suitbyafew 
 • on behalf of all the creditors ; and it tends to pre- 
 vent several suits by several creditors, which might 
 be highly inconvenient in the administration of 
 assets, as well as burthensome on the fund to be 
 [167] administered ; for if a bill be brought by a single 
 creditor for his own debt, he may as at law gain a 
 preference by the judgment in his favour over other 
 creditors in the same degree, who may not have 
 used equal diligence (I). 
 
 But some of a number of creditors, parties to a 
 trust-deed for payment of debts, have been per- 
 mited to sue on behalf of themselves and the other 
 194 creditors named in the deed for execution of the 
 
 trust (??^), although one of those creditors could not 
 in that case have sued for his single demand without 
 bringing the other creditors before the court. This 
 seems to have been permitted purely to save ex- 
 
 (I) See Att. Gen. v. Cornthwaite, (m) Carry v. Trist, 1 Dec. 1766 ; 
 
 2 Cox, R. 44 ; an instance of a bill Routh v. Kinder, 3 Swanst. 144, 
 
 by a single creditor (1). And see n. ; Boddy v. Kent, 1 Meriv. 301 ; 
 
 Haycock v. Haycock, 2 Ca. in Cha. Weld v. Bonham, 2 Sim. & Stu. 
 
 124; Bedford v. Leigh, Dick. 707 ; 91 ; Handford v. Slorie, 2 Sim. & 
 
 Hall V. Binney, 6 Ves. 738. Stu. 196. 
 
 should present the particulars of liis claim to the master, accompanied 
 by his affidavit in support thereof. In this affidavit, the claimant must 
 swear either positively or according to his information and belief, that 
 the amount claimed is justly due as set forth in the particular of his 
 claim, and that neither the claimant, nor any person by his order or to his 
 knowledge or belief for his use hath received the amount thus claimed 
 or any part thereof or any security or satisfaction whatsoever for the 
 same or any part thereof, Morris v. Mowatt, 4 Paige C. R. 142, and 
 see Rule 105, N. Y. Chancery.] 
 
 (1) [And see Hendricks v. Robinson, 2 J. C. R. 283; Corning v. 
 White, 1 Paige's C. R. 567.]
 
 S. II. p. I.] DEMURRERS. 194' 
 
 peiise and delay. If a great number of creditors, 
 thus specially provided for by a deed of trust, were 
 to be made plaintiffs, the suit would be liable to 
 the hazard of frequent abatements; and if many 
 were made defendants, the same inconvenience 
 might happen, aud additional expense would un- 
 avoidably be incurred. 
 
 By analogy to the case of creditors, a legatee is b "legatees.' *'** 
 permitted to Sue on behalf of himself and other lega- 
 tees (1) ; and as he might sue for his own legacy only, 
 a suit by one on behalf of all the legatees has the 
 same tendency to prevent inconvenience and expense 
 as a suit by one creditor on. behalf of all creditors of . 
 the same fund (n) ; but in a suit by a single legatee 
 for his own legacy, unless the personal representative [looj 
 of the testator, by admitting assets for payment of 
 the legacy,warrants an immediate personal decree 
 against hnnself, by which he /ilone will be bound (<?), 
 the court will direct a generrl accountof all the lega- 
 cies of the same testator, and payment of the legacy 
 claim ratably only with the other legacies, no pre- 
 ference being allowed amongst legatees in the ad- 
 ministration of assets ( p) . 
 
 («) 6 Ves. 779 ; and see Morse v. the residuary legatees, (see 1 Vern. 
 
 Sadler, 1 Cox, R. 352 (2). 261 ; Wainwright v. Waterman, 1 
 
 (o) See Boys v. Ford, 4 Madd. 40. Ves. Juii. 311 ; 1 Madd. R. 448,) nor 
 
 (p) To a bill by a specific or pecu- generally, (see 2 Ca. in Cha. 124 (3) ; 
 
 niary legatee for payment, neither and see Morse v. Sadler, 1 Cox, R. 
 
 (1) See note on Parties at the end of the book. 
 
 (2) [Brown v. Ricketts, 3 J. C. R. 563 ; Fish v. llowland, 1 Paige's 
 C. R. 20 ; Priichard v. Hicks, lb. 270 ; Ross v. Crary, lb. 416 ; IlaileU 
 V. Hallelt, 3 lb. 15.] 
 
 (1) Also lb. 228 ; West v. Randall, 2 Mason's R. 181 ; Fritchard v. 
 Hicks, 1 Paige's C. R. 270.
 
 195 
 
 DEMURRERS. 
 
 [Chap. II. 
 
 When the court has pronounced a decree for an 
 account and payment of debts or legacies under 
 which all creditors or legatees may claim, it will re- 
 strain subsequent proceedings by a separate creditor 
 or legatee, either at law or in equity, as the just ad- 
 ministration of the assets would be greatly embar- 
 rassed by such proceedings {p). 
 
 by^pariswone?!! Whorc all tho inhabitants of a parish had rights 
 of common under a trust, a suit by one on behalf of 
 [169] himself and the other inhabitants was admitted (</). 
 It has been doubted whether the attorney-general 
 ought not to have been a party to that suit (r), and 
 accordingly, on a bill filed by some of the sufferers by 
 a fire against the trustees of a collection made for 
 the sufferers generally, it was objected at the hearing, 
 that the attorney-general ought to have been a party, 
 and that otherwise the decree would not be con- 
 clusive : and the cause was accordingly ordered to 
 
 196 stand over for the purpose of bringing the attorney- 
 
 general before the court (s). But where a bill was 
 brought for distribution of private contributions the 
 
 352), any other of the legatees, need 
 be made parties ; but on such a bill 
 by one of several residuary legatees, 
 he must in general bring before the 
 court all the other persons interested 
 in the residue, after satisfaction of 
 the creditors and the specific and 
 pecuniary legatees. 2 Ca. in Cha. 
 124 ; Parsons v. Neville, 3 Bro. C. C. 
 365; 16 Ves. 328. And see 1 Sim. 
 & Stu. 106. 
 
 (p) 1 Sch. &- Lefr. 299, and cases 
 cited there, in note .(6) ; and see 
 Douglas V. Clay, Dick. 393 ; Brooks 
 V Reynolds, Dick. 603 ; S.C.I Bro. 
 C. C. 183 ; Rush v. Higgs, 4 Ves. 
 
 638 ; Paxton v. Douglas, 8 Ves. 520 ; 
 Terrewest v. Featherhy, 2 Meriv. 
 480 ; Ciirrie v. Bowyer, 3 Madd. 456 ; 
 Parrel v. Smith, 2 Ball & B. 337 ; 
 1 Jac. R. 122; Lord v. Wortnleigh- 
 ton, 1 Jac. R. 148. 
 
 iq) 1 Ca. in Cha. 269. Blackham 
 V. the Warden and Society of Sut- 
 ton Coldfield. See Att. Gen. v. 
 Heelis, 2 Sim. & Stu. 67. 
 
 (r) See Att. Gen. v. Moses, 2 
 Madd. R. 294. 
 
 (s) Overall v. Peacock, 6 Dec. 
 1737. See Wellbeloved v. Jones, 
 1 Sim. & Stu. 40.
 
 S. II. p. I.] DEMURRERS. 196 
 
 objection that the attorney-general was not a party 
 was overruled (t) (1). 
 
 For the application of personal estate amongst b'l'n'ex°ofto 
 next of kin, or amongst persons claiming under a oth^era^ciafS 
 general description, as the relations of a testator or deBcription!"^'* 
 other persons, where it may be uncertain who are 
 all the persons answering that description, a bill 
 has been admitted by one claimant on behalf of 
 himself and the other persons equally entitled (u) (1), 
 and the necessity of the case has induced the court, 
 especially of late years, frequently to depart from 
 the general rule, where a strict adherence to it ["1701 
 would probably amount to a denial of justice ; and 
 to allow a few persons to sue on behalf of great 
 numbers haying the same interest (x) (1). 
 
 (<) Lee V. Carter, 17 Nov. 1740, 312; Pearson v. Belchier, 4 Ves. 
 
 MS. N. reported 2 Atk. 84; but this 627 ; Lloyd v. Loaring, 6 Ves. 773 ; 
 
 point is not noticed by Atkyus. Nutt Good -v. Blewitt, 13 Yes. 39T; Cock- 
 
 V. Brown, 20 July 1745 ; Anon. 3 burn v. Thompson, 16 Ves. 321 ; 3 
 
 Atk. 227 ; 1 Sim. & Stu. 43. The Meriv. 510 ; Manning v. Thesiger, 
 
 attorney or sohcitor-general is usually 1 Sim. & Stu. 106 ; Baldwin v. Law- 
 
 a necessary party to suits relating to rence, 2 Sim. & Stu. 18 ; Gray v. 
 
 charity funds. See Wellbeloved v. CAop/Jn, 2 Sim. &, Stu. 267 (3) ; but 
 
 Jones, 1 Sim. & Stu. 40; and above, it seems that except, perhaps, in the 
 
 pp. 23, 120. common cases of this kind, it is 
 
 (u) See Ambl. 710 ; 1 Russ. R. necessary to allege that the parties 
 
 166 (2). are too numerous to be individually 
 
 (x) Chancey v. May, Free, in named. Weld v. Bonkam, 2 Sim. & 
 
 Chan. 592 (Finch Ed.) ; Gilb. 230 ; Stu. 91 ; see, however. Van Sandau 
 
 1 Atk. 284; Leigh v. Thomas, 2 Ves. v. Moore, 1 Russ. R. 441 (4). 
 
 (1) See note on Parties at the end of the book. 
 
 (2) [But for the practice in ordinary cases, see note (o), on the last 
 page. 
 
 (3) [S. C. on appeal, 2 Russ. 126; Hallelt v. Hallelt, 2 Paige's 
 C. R. 16.] 
 
 (4) [Also Hitchens v. Congreie, 1 Sim. 600 ; S. C. on appeal, 4 
 Rubs. 662 ; Wendell v. Van Rensselaer, 1 J. C. R. 349. And such 
 
 18
 
 196 DEMURRERS. [ChAP, II^ 
 
 There are also other cases in which the interests 
 
 197 of persons not parties to a suit may be in some- 
 degree affected, and yet the suit has been permitted 
 to proceed without them, as a bill brought by a 
 lord of a manor against some of the tenants, or by 
 some of the tenants against the lord, on a question 
 of common ; or by a parson for tithes against some 
 of the parishioners, or by some of the parishioners 
 against the parson, to establish a general parochial 
 modus {x). 
 
 Persons conse- In mauy cases the expression that all persons in- 
 
 quentially inte- J i ^ ^ 
 
 rested; tercstcd iu the subject must be parties to a suit, is 
 
 not to be understood as extending to all persons who 
 
 [1711 '^^y ^^ consequentially interested. Thus, in the 
 
 as creditors, ^ase of a bill which may be brought by a single 
 creditor for satisfaction of his single demand out 
 of the assets of a deceased debtor, as before no- 
 ticed (1), although the interest of every other un- 
 
 (jp) 1 Atk. 283 ; 3 Atk. 247 ; C//ay- representing a numerous class, as 
 
 tor V. Trin, Coll. Anst. 841; 11 Ves. against churchwardens representing 
 
 444 ; and see Adair v. New River the parishioners in respect of a 
 
 Comp. 11 Ves. 429 ; 16 Ves. 328; 1 church-rate, it must be alleged that 
 
 jac. & W. 369 ; 2Swanst. 282; but the suit is brought against tliem in 
 
 it appears that where it is attempted such representative character. 5 
 
 to proceed against some individuals Madd. 13. 
 
 bill may be filed by some, even though the illegal acts complained of 
 may be sanctioned by the majority. Bromley v. Smith, 1 Sim. 8. 
 
 Some of the members of a partnership cannot file a hill, on behalf 
 of themselves and the others for a dissolution of the parti.ership; but 
 all the member?, however numerous, must be parties to the suit. Lrmg 
 V. Yunge, 2 Sim. 369 ; and see Macmdhon v. Upton, lb. 473. As where 
 one of several partnei's received a mortgage in his own name for a 
 partnership debt, and afterwards brought a bill in his separate capacity 
 to foreclose the equity of redemption : — i/eZJ, on demurrer, that the. 
 other partners ought to have joined. Noyes v. Sawyer, 3 Vermont R. 
 160.] 
 
 (1) [At page 166.]
 
 S. II. p. I.] DEMURRERS. 197 
 
 satisfied creditor may be consequentially affected 
 
 by the suit, yet that interest is not deemed such as 
 
 to require that the other creditors should be parties ; 
 
 notwithstanding, the decree if fairly obtained \yill 
 
 compel them to admit the demand ascertained under 19s 
 
 its authority as a just demand, to the extent allowed 
 
 by the court in the administration of assets; but 
 
 they will not be bound by any account of the assets 
 
 taken under such a decree. So in all cases of bills terested after 
 
 payment of 
 
 by creditors or legatees, the persons^entitled to the ^^^^ ^""^ ^^s*- 
 personal assets of a deceased debtor or testator, 
 after payment of the debts or legacies, are not 
 deemed necessary parties, though interested to 
 contest the demands of the creditors and legatees : 
 and if the suits be fairly conducted, they will be 
 bound to allow the demands admitted in those suits 
 by the court, though they will not be bound by any 
 account of the property taken in their absence (//). 
 
 To a bill to carry into execution the trusts of a to*^arry Sito?:^ 
 will disposing of real estate by sale or charge of trusts or » wm. 
 the estate, the heir at law of the testator is deemed 
 a necessary party, that the title may be quieted 
 against his demand (1) ; for which purpose the bill 
 usually prays that the will may be established against [172] 
 him by the decree of the court ; but if the testator 
 has made a prior will containing a different disposi- 
 tion of the same property, and which remains un- 
 cancelled, and has not been revoked except by the 
 
 (y) See the case q{ Bedford v. wrig?U\. Waterman, I Vea. Jx3\3 ; 
 Leigh, Dick. 707. And see Lawson Brown v. Dowf'waite, 1 Madd. R. 
 V. Barker, 1 Bro. C C. 303 ; Wain- 448. 
 
 (1) See note on Parties at the end of the book.
 
 igQ DEMURRERS. [ChAP. II. 
 
 subsequent will, it has not been deemed necessary 
 to make the persons claiming under the prior will 
 parties ; though if the subsequent will be not valid, 
 those persons may disturb the title under it as well 
 199 as the heir of the testator. If, however, the prior 
 
 will is insisted upon as an effective instrument not- 
 withstanding the subsequent will, the persons claim- 
 ing under it maybe brought before the court, to quiet 
 the title, and protect those who may act under the 
 orders of the court in executing the latter instru- 
 ment (z). 
 
 If no heir at law can be found, the king's attorney- 
 general is usually made a party to a bill for carrying 
 the trusts of a devise of real estate into execution, 
 supposing the escheat to be to the crown, if the will 
 set up by the bill should be subject to impeach- 
 ment («). But if any person should claim the 
 escheat against the crown, that person may be a 
 necessary party. 
 
 If the heir at law of a testator who has devised a 
 real estate on trusts should be out of the jurisdiction 
 [173] of the court, and that fact should be charged and 
 proved, the court will proceed to direct the execution 
 of the trusts upon full proof of the due execution of 
 the will and sanity of the testator ; though that evi- 
 dence cannot be read against the heir if he should 
 afterwards dispute the will, and the court therefore 
 
 (z) See OQ the general subject, (a) See the case of Att. Gen. v. 
 
 Harris v. Ingledew, 3 P. Wms. 91 ; Mayor of Bristol, 3 Madd. 319 ; /S. C. 
 
 Lewis V. Naugle, 2 Ves. 431 ; 1 Ves. 2 Jac. & W. 294. 
 Jun. 29 (1). 
 
 (1) [Also Jackson v. Radford, 4i Price, 274; Fordham v. Rolfe, 1 
 Tamlyns, C. R. 1 ; Wiser v. BlacJdy, 1 J. C. R. 437.]
 
 S. II. p. I.] DEMURRERS. 199 
 
 cannot establish the will against him, or in any man- 
 ner ensure the title under it against his claims (b) (1). 
 
 Where real property in question is subject to an 200 
 
 entail, it is ffenerally sufficient to make the first the property u 
 
 - . , . subject to sue- 
 
 person in being, in whom an estate of mheritance cesaive estates. 
 is vested, a party with those claiming prior interests, 
 omitting those who may claim in remainder or re- 
 version after such vested estate of inheritance (c) ; 
 and a decree against the person having that estate of 
 inheritance will bind those in remainder or rever- 
 sion, though by failure of all the previous estates the 
 estates then in remainder or reversion may after- 
 wards vest in possession (d). It has therefore been 
 determined that a person so entitled in remainder? 
 and afterwards becoming entitled in possession, may 
 appeal from a decree made against a person having 
 a prior estate of mheritance, and cannot avoid the 
 effect of the decree by a new bill (e). 
 
 Contingent limitations and executory devises to 
 persons not in being may in like manner be bound 
 by a decree against a person claiming a vested estate [174] 
 of inheritance ; but a person in being claiming under 
 a limitation by way of executory devise, not subject 
 to any preceding vested estate of inheritance by 
 
 (h) See Williams v. Whinyates, 2 518 ; S. C. 3 Bro. P. C. 204, Toml. Ed. 
 
 Bro. 0. C. 399 ; and see French v. (d) See Lloyd v. Johnes, 9 Ves. 
 
 Baron, 2 Atk. 120 ; S. C. Dick, 138. 37 ; 16 Vea. 326. 
 
 (c) 2 Sch. & Lefr. 210 ; and see (e) Giffard v. Hort, 1 Sch. & Lefr. 
 
 Anon. 2 Eq. Ca. Ab. 166; 2 Ves. 386, ib. 411. 
 492 ; Pelham v. Gregory, 1 Eden, R. 
 
 (1) A decree for establishing a will and executing the trusts thereof, gj^ ^ heirlm. 
 may be impeached by an original bill by the heir at law in case ho was peaching a de- 
 
 1-1 1 111 1 r 1 1 cree establighing 
 
 not served with a subpoena, though named as a party detendant to the a win. 
 bill in the cause in which such decree was made. He need not file a 
 supplemental bill in that cause. Walertoii v. Croft, 6 Sim. 431.
 
 200 DEMURRERS. ^ [ChAP. II. 
 
 which it may be defeated, must be made a party to 
 a bill affecting his rights (/) (1). 
 *01 If a person entitled to an interest prior in limita- 
 
 tion to any estate of inheritance before the court, 
 should be born pending the suit, that person must 
 be brought before the court by a supplementary pro- 
 ceeding. And if by the determination of any con- 
 tingency a new interest should be acquired, not 
 subject to destruction by a prior vested estate of 
 inheritance, the person having that interest must be 
 brought before the court in like manner. And if 
 by the death of the person having, when the suit 
 was instituted, the first estate of inheritance, that es- 
 tate should be determined, the person having the next 
 estate of inheritance, and all the persons having prior 
 interests, must be so brought before the court (g). 
 Jspe^L^re^ Trustccs of real estate for payment of debts or 
 ^\h payment of logacics may sustain a suit, either as plaintiffs or de- 
 fendants, without bringing before the court the cre- 
 ditors or legatees for whom they are trustees, which 
 in many cases would be almost impossible ; and the 
 rights of the creditors or legatees will be bound by 
 the decision of the court against the trustees (k) (1). 
 
 (/) See Handcockv. Shaen,. CoW. (h) See Franco v. Franco, 3 Yea. 
 
 P. C. 122; and Anon. 2 Eq. Ca. Ab. 75; and see Curteis v. Candler, 6 
 
 166; Sherrit v. Birch, 3 Bro. C. C. Madd. 123. [Bifield v. Taylor, 1 
 
 229. Beatty's R. 91.] 
 
 (jg) See 2 Sch. & Lefr. 210. 
 
 (1) See note on Parties at the end of the book. 
 
 (1) In Harrison v. Stewardson, Sir James Wigram, V. C, observed, 
 " It is impossible to say that the practice of the court is in conformity 
 with this passage ; for almost the universal rule is to make legatees 
 parties where legacies are charged on real estate." 2 Hare, 532. 
 And see note on Parties at the end of the book.
 
 .S. II. p. I.] DEMURRERS. 201 
 
 Tenants. 
 
 The interests of persons claiming under the pos- 
 session of a party whose title to real property is dis- r2^75i 202 
 pnted, as his occupying tenants (1), under leases, 
 are not deemed necessary parties ^, though if he had 
 a legal title, the title which they may have gained 
 from him cannot be prejudiced by any decision on 
 his rights in a court of equity in their absence ; and 
 though if his title was equitable merely, they may 
 be affected by a decision against that title (1). Some- 
 times, if the existence of such'rights is suggested at 
 the hearing, the decree is expressly made without 
 prejudice to those rights, or otherwise qualified 
 according to circumstances. If therefore it is in- 
 tended to conclude such rights by the same suit, the 
 persons claiming them must be made parties to it ; ^"•''^'"^ancera. 
 and where the right is of a higher nature, as a 
 mortgage, the person claiming it is usually made a 
 party {i) (2). 
 
 T,. , • /» 1 • Persons enhtled 
 
 o a suit lor the execution or a trust, by or against to prior charges, 
 
 ~ or to a surplus 
 
 those claiming the ultimate benefit of the trust, after afterpayment of 
 
 o ' prior charges. 
 
 the satisfaction of prior charges, it is not necessary 
 to bring before the court the persons claiming the 
 benefit of such prior charges ; and therefore, to a bill 
 for the application of a surplus paid after payment 
 of debts and legacies, or other prior incumbrance, the 
 
 (/) See 2 Ves. 450. [Also Capis v. Middleton, 2 Madd. R. 410.] 
 
 (1) [Where a receiver is appointed, the ordinary direction is that 
 the tenant attorn. Jf application be made to persons to attorn, and 
 thoy refuse, the course is not to maiie tliem parties: but to move that 
 they should attorn; and then such persons must come in and inform 
 the court whether they are tenants or not. lieid v. Middleton, 1 Turn. 
 A R. 455.] 
 
 (2) See note on Parties at the end of the book.
 
 202 DEMURRERS. [ChAP. II. 
 
 creditors, legatees, or other prior incumbrancers, 
 need not be made parties (k) (1). And persons 
 having demands prior to the creation of such a trust 
 may enforce those demands against the trustees 
 without bringing before the court the persons in- 
 
 203 terested under the trust, if the absolute disposition 
 of the property is vested in the trustees (1). But 
 
 L17dJ if ^}|e trustees have no such power of disposition, as 
 
 in the case of trustees to convey to certain uses, the 
 
 persons claiming the benefit of the trust must also 
 
 Persons having \)q partics (2). Pcrsous having specific charges on 
 
 specific charges i \ / o i o 
 
 entrust proper- ^^ trust-propcrty iu mauy cases are also necessary 
 parties ; but this will not extend to a general trust 
 for creditors or others whose demands are not dis- 
 tinctly specified in the creation of the trust, as 
 their number, as well as the difficulty of ascertain- 
 ing who may answer a general description, nlight 
 greatly embarrass a prior claim against a trust- 
 property (Z). 
 Parties to a suit If a debt by a covenant or obligation binding the 
 sets of a debtor, heir of thedcbtoris demanded against his real assets 
 
 {k) See Anon. 3 Atk. 572. [Also 2 Sim & Stu. 184 (3). It may here 
 
 Calverley v- Phelp, 6 Madd. 228; be observed, that if the trust-property 
 
 James v. Biou, 2 S. & S. 600 ; Wal- be personal, and its amount be ascer- 
 
 lace V. S7nith, 1 Beatty, 385.] taiued, one entitled to an aliquot part 
 
 (P As to cestui que trusts being thereof may sue the trustees for the 
 
 parties, see Kirk v. Clark, Free, in same, without making the persons 
 
 Chan. 275 ; Adams v. St. Leger, 1 claiming the other shares thereof 
 
 Ball & B. 181 ; Calverly v. Phelp, parties to the suit. Smith v. Snow, 
 
 6 Madd. 229 ; Douglas v. Horsfall, 3 Madd. 10 (1). 
 
 (1) See note on Parties at the end of the book. 
 
 (2) [Fish V. Howland, 1 Paige's C. R. 20.] 
 
 (3) Malin v. Malin, 2 J. C. R. 238 ; Hickock v. Srribner, 3 J. C. 
 311 ; Johnson v. Hart, lb. 322; Elliotts executor v. Drayton, 3 Desau^ 
 C. R. 29; Taylor v. Mayrant, 4 lb. 505; Marshall v. Beverly, &■ 
 Wheaton, 313.]
 
 S.II. p. I.] DEMURRERS. 203 
 
 in the hands of a devisee under the statute 3 & 4 
 
 W. & M. c. 14, the heir must always be a party (?n) ; 
 
 and if any assets have descended to the heir they 
 
 are first applicable, unless the assets devised are 
 
 charged with debts in exoneration of the heir. The 
 
 personal representative of the deceased debtor is 204 
 
 also generally a necessary party (??-), as a court of 
 
 equity will first apply the personal, in exoneration 
 
 of the real assets (2). When there has been no [177] 
 
 . Limited admin- 
 
 ffeneral personal representative, a special repre- istrator.andper- 
 
 C3 1 I '11 Bonal represen- 
 
 sentative by an administration limited to the subject ^^l]^ En°giMi* 
 of the suit has been required. In other cases where 
 a demand is made against a fund entitled to ex- 
 oneration by general personal assets, if there are 
 any such, a like limited administrator is frequently 
 required to be brought before the court. This 
 seems to be required rather to satisfy the court that 
 there are no such assets to satisfy the demand : for 
 although the limited administrator can collect no 
 such assets by the authority under which he must 
 act, yet as the person entitled to general admini- 
 stration must be cited in the ecclesiastical court be- 
 fore such limited administration can be obtained, 
 and as the limited administration would be deter- 
 mined by a subsequent grant of general administra- 
 tion, it must be presumed that there are no snch 
 
 (m) Gawler v. Wade, 1 P. Wms. (n) Knight v. Knight, 3 P. Wms. 
 100 ; Warren v. Stawell, 2 Atk. 331 ; 3 P. Wms. 350 ; 3 Atk. 406 ; 
 125 (1). 1 Eq. Ca. Ab. 73 ; Doice v. Farlie, 
 
 2 Madd. R. 101 ; 2 Sim. &, Stu. 292. 
 
 (1) See the Revised Statutes of the State of N. Y., as to suits by 
 creditors against heirs. 2d vol. p. 464, J 42, et seq.] 
 
 (2) See note on Parties at the end of the book.
 
 S04 DEMURRERS. [ChAP. II. 
 
 assets to be collected, or a general administration 
 would be obtained (o) (3). 
 205 The personal representative thus brought before 
 
 the court must be a representative constituted in 
 England ; and although there may be personal as- 
 sets in another country, and a personal representa- 
 tive constituted there, yet as he may not be amen- 
 able to the process of the court, and those assets 
 must be subject to administration according to the 
 [178] laws of that country, such a representative is not 
 deemed a necessary party to substantiate a demand 
 against the real assets in England (p) (3). 
 
 Where a claim on property in dispute would vest 
 in the personal representative of a deceased person, 
 and there is no general personal representative of 
 that person, an administration limited to the subject 
 of the suit may be necessary to enable the court to 
 proceed to a decision on the claim ; and when a 
 right is clearly vested, as a trust-term which is re- 
 quired to be assigned, an administration of the 
 effects of the deceased trustee limited to the trust- 
 
 (0) See the case of Glass v. Oxen- cution, by virtue of stat. 38 Geo. III. 
 Jiam, 2 Atk. 121 (1). Where probate c. S7. Rainsford v. Taynton, 7 Ves. 
 has been granted, and the executor 460 (2). 
 
 has subsequently departed out of the (p) See Jauncy v. Sealey, 1 Vern. 
 
 realm, a special administration may, 397 ; and Lowe v. Farlie, 2 Madd. R. 
 
 after twelve months from the decease 101 ; Logan v. Farlie, 2 Sim. & Stu. 
 
 of the testator, be obtained to defend 284. 
 a suit, or to carry a decree into exe- 
 
 (1) See also Colt v. Lasnier, 9 Cowen's R. 320.] 
 
 (2) [Provision is made by the Revised Statutes of the Stite of New- 
 York for the appointment of an administrator with the will annexed 
 upon the departure or incompetency of an executor. 2d vol. 72, J 18, 
 19, 20, 21, 22.] 
 
 (3) See note on Parties at the end of the book.
 
 S. II. p. I.] DEMURRERS. 205 
 
 term is necessary to warrant the decree of the court 
 for assignment of the term. 
 
 In some cases, when it has appeared at the hear- fteT^^onJl-S 
 mg or a cause, that the personal representative or a a party to a mh. 
 deceased person, not a party to the suit, ought to 
 be privy to the proceedings under a decree, but 
 that no question could arise as to the rights of such 
 representative on the hearing, the court has made a 
 decree directing proceedings before one of the 206 
 
 masters of the court, without requiring the repre- 
 sentative to be made a party by amendment or other- 
 wise ; and has given leave to the parties in the suit 
 to bring a representative before the master on taking 
 the accounts or other proceedings dii'ected by the 
 decree, which may concern the rights of such re- 
 presentative ; and a representative thus brought be- [179] 
 fore the master is considered as a party to the cause 
 in the subsequent proceedings {p). 
 
 In most cases the person having the legal title in Legal owner. 
 the subject must be a party, though he has no bene- 
 ficial interest, that the legal right may be bound by 
 the decree of the court {q) (1). Thus if a bond or A8«ignor. 
 judgment be assigned, the assignor as well as the 
 assignee must be a party, for the legal right of ac- 
 tion remains in the assignor (r). 
 
 (p) See Fletcher v. Ashhurner, 1 (r) See Cathcart v. Leicis, 1 Ves. 
 
 Bro. C. C. 497 ; I Ves. Jun. 69. Jun. 463 ; but see Brace v. Harring- 
 
 (7) As to the case of a trustee, see ton, 2 Atk. 235 ; and Blake v. Jones, 
 
 Prec in Chan. 275 ; 3 Barnard, 325 ; 3 Anstr. 651. See also Ryan v. An- 
 
 Burt V. Dennet, 2 Bro. C. C. 225 ; 7 derson, 3 Madd. 1 74 ; Edney v. Jew- 
 
 Ves. 11; Cholmondeley \. Clinton, ell, 6 Madd. 165; 2 Sim. & Stu. 
 
 2 Meriv. 71. 253 (2). 
 
 (1 ) See note on Parlies at the end of the book. 
 
 (2) [Also Edmestnn v. Lyde, I Paige's C. R. 637; Saunders v. 
 Macey, 4 Bibb's R. 458, 643 ; Allen v. Crockett, lb. 240 ; and see Ed- 
 wards on Parties, 81.]
 
 206 DEMURRERS. [ChAP. IL 
 
 teSewhoare In some casGS, however, it may still remain a 
 neceesary par- g^gg^-j^jj of Considerable difficulty who are necessary 
 
 parties to a suit. It may indeed be doubtful until 
 the decision of the cause what interests may be 
 affected by that decision ; and sometimes parties 
 must be brought before the court to litigate a ques- 
 tion, who had, according to the decision, no inter- 
 
 207 est in the subject ; and as to whom therefore, 
 whether plaintiffs ordefendant, the bill maybe finally 
 dismissed, though the court may make a decree on 
 the subject as between other parties, which will be 
 conclusive on the persons as to whom the bill may 
 be so dismissed, but which the court would not 
 pronounce in their absence, if amenable to its juris- 
 diction. " 
 
 sid't'lth^b'^"' Sometimes, too, a plaintiff, by waiving a parti- 
 waivingaciaim. (.yj^j. c]aijjj^ jj^^y avoid tho ucccssity of making 
 
 parties who might be effected by it, though that 
 [180] claim might be an evident consequence of the rights 
 asserted by the bill against other parties. This 
 however, cannot be done to the prejudice of 
 others (1). 
 want^^f"JStie8 Wheucver a want of parties appears on the face 
 of a bill, the want of proper parties is a cause of 
 
 (1) [The examples given by Lord Redesdale, as to parties, amount 
 to merely a tithe part of the reported cases, and embrace only some 
 of the leadiiig principles in relation to them. The subject is a wide 
 and most important one ; and has been attempted to be reduced to prac- 
 tical use by Charles Edwards, Esq., On Parties to Bills and other Plead- 
 ings in Chancery. For a collection of English and American cases, 
 see note on Parties at the end of the book. See also Calvert on Par- 
 ties to Bills in Ciiancery, a valuable English treatise on that subject 
 v?hich has recently passed to a second edition.
 
 S. II. p. I.] DEMURRERS. 207 
 
 demurrer (s) (2). But if a sufficient reason for not 
 bringing a necessary party before the court is 
 suggested by the bill (3) ; as if a personal repre- 208 
 
 sentative is a necessary party, and the representa- 
 tions charged to be in litigation in the ecclesias- 
 tical court (t) ; or if the bill seeks a discovery of 
 the parties interested in the matter in question for 
 the purpose of making them parties, and charging 
 that they are unknown to the plaintiff; a demur- 
 rer for want of the necessary parties will not 
 hold (u). 
 
 (s) Clark V. Lord Angier, 1 Ca. in (1). Qwrere, whether a demurrer for 
 
 Chan. 41 ; Nels. R. 78, 93 ; Astleyv. want of parties should be to the whole 
 
 Fountaine, Finch, R. 4; Weston v. bill. See E. I. Company v. Coles, 
 
 Keighley, Finch, R. 82 ; Atwood v. reported 3 Swanst. 142, note ; and 
 
 Hawkins, Finch, R. 113; Galle v. see the cases of ^<«)oo J v. i/aicA'in^, 
 
 Greenhill, Finch, R. 202 ; 3 P. Wms. Finch, R. 113 ; Astley v. Fountaine, 
 
 311, note; Knight v. Knight, 3 P. Finch, R. 4; and Bressenden v. De- 
 
 Wms. 331 ; 2 Atk. 570; 1 Eq. Ca. creets, 2 Ca. in Chan. 197, cited 3 
 
 Ab. 72 ; 2 Eq. Ca. Ab. 165 ; Cock- Swanst. 144, note. 
 
 hurnv. Thompson, 16 Ves. 321; Cook (t) 2 Atkyns, 51; and see Jones 
 
 V. Butt, 6 Madd. 53 ; Weld v. Bon- v. Frost, 3 Madd. 1. 
 
 Jiam, 2 Sim. & Stu. 91; Gray v. (u) Bowyer v. Covert, lYera. 95; 
 
 Chaplin, 2 Sim. & Stu. 267 ; Maule Heath v. Percival, 1 P. Wms. 682, 
 
 V. Duke of Beaufort, 1 Russ. R. 349 684. 
 
 (1) Crane v. Deming, 7 Day, 387; Mitchell v. Lenox, 2 Paige's C. 
 R. 280 ; Robinson v. Smith, 3 lb. 222.] 
 
 (2) Elmendorf V. Taylor, 10 Wheat. 152. See the form of a de- 
 murrer for want of parties, Willis, 462, and note (b) there.] 
 
 But if the objection do not appear on the face of the bill, the proper 
 mode to take advantage of it is by plea or answer. If a misjoinder of 
 complainants by demurrer or answer, it is too late to urge a formal 
 objection of this kind at hearing. Story v. Livingston, 13 Peters, 375, 
 360. 
 
 (3) In order to dispense with making a person a defendant, it is not Allocation as to 
 
 sufficient to allege that he absconded a year before the bill was filed ; P"8o° , hoving 
 
 "= •' ' absconded. 
 
 for he might have returned before the filing of the bill. Pen/old v. 
 
 JNunn, 5 Sim. 405.
 
 nousnesB. 
 
 208 DEMURRERS. [ChAP. II. 
 
 ref^oug^t^T"^' -A- demurrer for want of parties must show who 
 ?e VoplTr par- arc the proper parties : not indeed by name, for 
 [1811 that might be impossible ; but in such manner as 
 to point out to the plaintiff the objection to his bill, 
 and enable him to amend by adding the proper 
 parties (x) (1). In case of a demurrer for want of 
 parties, the court has permitted the plaintiff to 
 amend, when the demurrer has been held good 
 upon argument {y) (3). 
 IX. Muitifa- IX. The court will not permit a plaintiff to de- 
 mand, by one bill, several matters of different na- 
 tures against several defendants (z) ; for this would 
 tend to load each defendant with an unnecessary 
 burthen of costs, by swelling the pleadings with 
 the state of the several claims of the other defend- 
 ants, with which he has no connection. A defend- 
 ant may therefore demur, because the plaintiff 
 
 (x) Upon this subject see 6 Ves. (y) Bressenden v. Decreets, 2 Ch. 
 781; 11 Ves. 369; 16 Ves. 325; 3 Ca. 197. 
 Madd. 62. ' (z) See 5 Madd. 146 (3). 
 
 (1) Lund V. Blanshard, 4 Hare, 23. 
 
 (2) See the form of a demurrer for want of parties. Equity Draft. 
 81 ; Edwards on Parlies, 275.] 
 
 (3) Garlick v. Sirong, 3 Paii:e's C. R. 440. It was said, in Gibbs 
 V. Cldgett, 2 Gill &. Johns. 14, that the ground of multifariousness 
 should be raised by a demurrer, before answer ; and that filing an 
 answer and going into testimony was a waiver of the objection. S. P. 
 Ward V. Cooke, 5 Madd. 122. 
 
 [A party in a divorce cause, cannot set up cruelty and adultery, and 
 pray for a separation from bed and board for ever, and also for a decree 
 dissolving the marriage contract. A demurrer would hold to such a 
 bill, on the ground of multifariousness. This has been distinctly de- 
 cided by Chancellor Walworth, in Smith v. Smith, 4 Paige 92. And 
 the bill was ordered to be dismissed, with costs, to be paid by the next 
 friend. The same rule had been laid down by V. C. M'Coun, in Mulock 
 V. Mulock, 1 Edwards' V. C. Rep. 14.]
 
 S. II. p. I.] DEMURRERS. 20^ 
 
 demands several matters of different natures of 
 several defendants by the same bill {a) (4). But 
 
 (a) Berke v. Harris, Hardr. 337 94 ; Exeter Coll. v. Rowland, 6 
 
 (1). And, as late instances of de- Madd. 94 ; Kaye v. Moore, 1 Siin. & 
 
 inurrers for multifariousness, see VVartZ Stu. 61; Deu> v. Clarke, 1 Sim. &> 
 
 V. Cooke, 5 Madd. 122; Salvidge v. Stu. 108; Turner v. Robinson, 1 Sim. 
 
 Hyde, 5 Madd. 138 ; S. C. 1 Jac. R. & Stu. 313 (2), and Skackell v. Ma- 
 
 153 ; Turner v. Doubleday, 6 Madd. caulay, 2 Sim. & Stu. 79 (3). 
 
 (1) [Fellows V. Fellows, 4 Cowen's R. 682. The rule that multifa- 
 rious matters shall not be joined in the same suit, is a rule of conve- 
 nience, lb. See in connection with this case, Brinkerhoff \. Brown, 
 6 J. C. R. 139. 
 
 To a demurrer for charging several and distinct matters against 
 several defendants, a party demurring must join a denial of combina- 
 tion, although the bill charges it only formally. Roih v. Butler, Ver- 
 non &L Scriven's (Irish) R. 85; Paul v. Forbes, lb. 376. If a bill be 
 liable to be dismissed for multifariousness, it ought to be dismissed in 
 iota, and not be made the foundation of partial relief. Gibbs v. Clagett, 
 supra-l 
 
 (li) [Vice-Chancellor Shadwell, in Marcos v. Pebrer, 3 Sim. 466, 
 said, he could not coincide with the decision in this case of Turner v. 
 Robinson, (S. C. 6 Madd. 94 ;) as he could not see how, consistently 
 with the rules of the court, tiie personal estate of A. could be joined in 
 the same suit with the personal estate of B. ; that there might be ques- 
 tions respecting the personal estate of B. with which the parties in- 
 tere.~ted in the personal estate of A. were not at all concerned ; and 
 that, therefore, he did not think he was bound to adopt the principle of 
 Turner v. Robinson.] 
 
 (3) [Dunn v. Dunn, 2 Sim. 329 ; Wynne v. Callender, 1 Russ. 293, 
 297 ] 
 
 (4; See the form of a demurrer for multifariousness, Willis, 464; 
 Equity Draft, 422 ; Sim. &- Stu. 79- 
 
 JNo rule can be laid down as to what constitutes multifariousness as 
 an abstract proposition ; eacb case must depend on its own circum- 
 stances and the cuurt must exercise a sound discretion where the in- 
 terests of the companies were so mixed up in all the transactions, that 
 entire justice could scarcely be done, at least not conveniently done, 
 witlmut a union of the proprietors of both companies ; and if they had 
 not been joined the bill would have been open to the opposite objection, 
 that all the proper parties ueie not before the court so as to enable it 
 to make a final and conclusive decree touching all their interest several 
 as well as joint, it was held that the bill was in no just sense multifa-
 
 209 DEMURRERS. [ChAP. II. 
 
 as the defendants may combine together to de- 
 
 rious. Thus, a party cannot in the same bill seek a divorce for extreme 
 cruelty and adultery. The decree is very different in the' two cases. 
 In one case the parties are only separated, the other the marriage is 
 dissolved and the parties at liberty to remarry. Defendant might be 
 surprised by a bill framed with these two aspects and left in uncer- 
 tainty as to what ground the complainant meant ultimately to rest on. 
 The case in Saxton 474, shows that the Chancellor only tolerated a 
 bill thus framed because no exception was taken, and the reasoning in 
 6 Johns. Ch. 163, is as applicable under the New-Jersey statute as un- 
 der that of New-York, so blending with the application for decree a 
 prayer for independent relief grounded on charges that require answer 
 on oath is improper. The answer to a bill for divorce by New-Jersey 
 statute cannot be under oath, while in all other cases it must. This 
 on a bill framed as above would require two answers to one bill, one 
 with and the other without oath. But in a bill for divorce a prayer 
 for alimony may be inserted and any charges, made in it respecting 
 property which might affect that question, would be proper. Decamp 
 V. Decamp, 1 Green, 296-7, 294. • 
 
 But to render the bill multifarious the matters must be not only sepa- 
 rate and distinct, but each of a character entitling complainant to sepa- 
 rate equitable relief. It is not multifarious if it set up one sufficient 
 ground for relief and state another on which no relief can be had. 
 Then defendant should demur to the defective part and answer the ' 
 other, or object to the former on hearing. If a bill be multifarious it 
 cannot be demurred to on that account, unless the prayer be also mul- 
 tifareous. Pleasants <^ Co. v. Glasscock et al, 1 Smedes & Marshall, 
 Ch. R. Miss. 24, 17, on authority of Varick v. Smith, 5 Paige R. 
 137 ; Dick v. Dick, 1 Hogan, 290. 
 
 Where two give mortgages on their separate property to secure a 
 joint note, blending the foreclosures, was held on demurrer, not multi- 
 farious, and that decree to foreclose both could be rend' red. Wilcox 
 et al. v. Mills et al.. Id. 87, 86. The mortgages were made to secure 
 the same debt and are but incident tQ the debt. Defendant could have 
 compelled the union of the two, and complainant would not be permit- 
 ted to coerce payment by two foreclosures when one would answer. 
 Ibid. But if the objection was tenable it cannot be insisted on by the 
 parties at the hearing. The objection of multifariousness cannot as a 
 matter of right be taken by the parties except by demurrer, or plea, or 
 answer, and if not so taken, it is deemed to be waived. But it may 
 at any time be taken by the court sua sponte, whenever it is deemed by 
 the court to be necessary or proper to assist it in the due administra- 
 tion of justice. Oliver et al. v. Piatt, 3 How. 411, 412, 383. Gaines
 
 S. II. p. I.] DEMURRERS. 209 
 
 fraud the plaintiff of his rights, and such a com- 
 bination is usually charged by a bill, it has been 
 held that the defendant must so far answer the 
 bill as to deny combination (h). In this however, [182] 
 the defendant must be cautious; for if the answer 
 goes farther than merely to deny combination, it 
 will overrule the demurrer (c) (1). A demurrer of 
 this kind will hold only where the plaintiff claims 
 several matters of different natures (2) ; but when 
 
 (6) Powell V. Arderne, 1 Vern. Lord Whitworth, 1 Made). R. 86; 
 
 416. As to the interpretation to be Salvidge v. Hyde, 5 Madd. 138. 
 
 put upon this passage, see 8 Ves. 527; And the ultimate decision in the lat- 
 
 and as to general charge of combi- ter case upon appeal, reversing the 
 
 nalion,seesup. pp. 43, 44. The pro- former, does not appear to have had 
 
 position in the text, however, bo far as any reference to that proposition ; 
 
 it may applj' to the usual general S. C. 1 Jac. 151. 
 
 charge of combination, seems now (c) Hester y. Weston, I Vera. 463. 
 to have been overruled. Brooks v. 
 
 el ux. V. Chew el aL,2 Id. 619 ; McLean, assignee, v. Bank of Lafayette, 
 3 Mc Lean's R. 418, et seq.- (where the authorities are reviewed,) 415. 
 Interests wholly distinct and separate cannot be united. The reason 
 is that individuals ought not to be subjected to expense and delay of 
 investigating matters in which they have no common interest. That 
 the pleading in chancery should rather conform to the simplicity of 
 pleadings at law. But there is no absolute rule, as above mentioned. 
 McLean, &.c. ib. 
 
 So a hill filed by the executors of an estate, and all those who pur- 
 chased from the m, is not upon that account alone, multifarious. Gaines 
 V. Chew, 2 How. 619. 
 
 But where one sues as administrator and mixes up his own claim 
 with that in his representative capacity, it is demurrable. Two bills 
 would be necessary. Carter v. Treadwell, 3 Story Rep. 513. 
 
 So, if a joint claim, against two or more defendants is improperly 
 joined in the same bill with a separate chtim against one of those de- 
 fendants only, in which the other defendants have no interest, and 
 which is wholly unconnected with the claim against them, all or either 
 of the defendants may demur to the whole hill for multifariousness. 
 Swift V. Eclford, executor, cf-c, et al, 6 Paige R. 28, 22. 
 
 (1) See note, pige 248. 
 
 (2) fThuB, an infant heir and only son of an intestate joined with 
 
 19
 
 209 DEMURRERS. [ChAP. IL 
 
 one general right is claimed by the bill, though 
 the defendants have separate and distinct rights, 
 a demurrer will not hold (d). As where a person 
 
 210 claiming a general right to the sole fishery of a 
 river, filed a bill against several persons claiming 
 several rights in the fishery, as lords of manors, 
 occupiers of lands, or otherwise (e). For in this 
 case the plaintiff did not claim several separate 
 and distinct rights, in opposition to several sepa- 
 rate and distinct rights claimed by the defendants; 
 but he claimed one general and entire right, though 
 set in opposition to a variety of distinct rights claimed 
 by the several defendants. So where a lord of a 
 manor filed a bill against more than thirty tenants 
 of the manor, freeholders, copyholders, and lease- 
 holders, who owed rents to the lord, but had con- 
 fused the boundaries of their several tenements, 
 praying a commission to ascertain the boundaries : 
 and it was objected at the hearing that the suit 
 
 ri831 ^^^ improper, as it brought before the court many 
 parties having distinct interests ; it was answered, 
 that the lord claimed one general right, for the 
 assertion of which it was necessary to ascertain 
 the several tenements, and a decree was made ac- 
 cordingly (/) (1). 
 
 ((f) See the cases cited above, pp. (e) Mayor of York v. Pilkington, 
 
 169, 170. And see Buccle v. Atleo, 1 Atk. 282. 
 
 2*Vern.37. As to cases of infringe- (/) Magdalen Coll. v. Alhilland 
 
 ment of copyrights and puteuts, see others, at the Rolls, 2G Nov. 1753. 
 DiUy V. Doig, 2 Ves. Jun. 486. See the distinctions taken iu Berke 
 
 V. Harris, Hardres, 337. 
 
 his sisters in a bill a.ainst their mother, the administratrix, for an ac- 
 count of ihe intestate's real and personal estate: demurrer for multi- 
 fariousness allowed. Dunn v. Dunn, 2 Sim. 329. Similar error, 
 Maud V. Acklom, lb. 331.] See note supra. 
 
 (1) Cases where a bill is multifarious. — It is not allowable to unite
 
 S. II. p. I.] DEMURRERS. 211 
 
 As the court will not permit the plaintiff to de- eauals""^ "^ 
 mand by one bill several matters of different natures 
 
 in the same information an application as to abuses in a school with Trusts both of a 
 an application as to abuses in a college, though the 1 itter are abuses \lgg° ^ °*'° ' 
 in relation to estates given to the college for the benefit of five scholars 
 from the school ; for the school and the college are distinct foundations, 
 and one defence cannot be made.as to the abuses in both. Atlorney- 
 General v. St. John's College, 7 Sim. 241. 
 Two or more distinct matters cannot be included in the same suit, Jpi"in? distinct 
 
 chanties m the 
 
 where it does not clearly appear that they are homogeneous, with the information 
 
 exception of minute differences, even in the case of a sole pkintifi' company?^"*** 
 
 and a sole defendant. So that where an information, after stating a 
 
 will by which property was gi\en to a city company, for the purpose 
 
 of making loans to young men free of the company, to assist them in 
 
 trade and otherwise, alleges that divers other donations and bequests 
 
 have been made to the company for the purpose of making loans to 
 
 young men (generally and without restriction) for their advancement 
 
 in business and life, and it prays relief in respect of the first-mentioned 
 
 and such other gifts and bequests, it is multifarious. Altoriuy-General 
 
 V. The Goldsmilhs' Company, 5 Siin. 670. 
 
 If a person, who is the personal representative both Of a testator Account both of 
 and of the testator's residuary devisee and legatee, files a bill against alestate.^^""'* 
 an agent for an account of the rents of the real estate and of the per- 
 sonal estate, received by such agent since the testator's death, the bill 
 is multifarious. Weeks v. Pill, 10 Law J. (N. S.) Ch. Rep. 6. 
 
 And so where the heir, who is also one of the next of kin, of an 
 intestate, joins with the other next of kin in a bill against the adminis- 
 tratrix, who has entered into possession of the real estate, as well us 
 the personalty, for an account of the intestate's real and personal 
 estates, the bill is demurrable for multifariousness. Dunn v. Dunn, 2 
 Sim. 329; see also Maud v. Aclom, ib. 331. 
 
 The union of an equitable ejectment bill against one person, and a EqnitRbte eject- 
 bill, to redeem against another person, is multifarious. Plumbe v. JJi^L"o"n* ^'^' 
 Plumbc, 4 Y. & C. Eq. Ex. 345. 
 
 A bill for a discovery and a commission or commissions to examine niscovpry »nd 
 witnesses in aid of the defence to two separate actions for two sepa- auTlTf^the" de- 
 rate libels, is multifarious and demurrable. For if the same coinmis- '^"'=''1:'' '''°"n' 
 
 tiiins for twoU- 
 
 sion or commissions were to furnish the defence for both actions.the bela. 
 plaintitf at law would be delayed from proceeding in either of the ac- 
 tions until the defendants were prepared for their defence in both. 
 Shackiil v. Macaulay, 2 S. & S. 79. 
 If a vendor files a bill against a purcha-er for a specific performance pppVinp, in a 
 
 of the purchase contract, and in the same bill prays that another defen- *"'' ''^ " ^t-ndor 
 
 '^ ' lor speciiic per-
 
 212 DEMURRERS. [ChAP. II. 
 
 against several defendants, so it will not permit a 
 bill to be brought for part of a matter only ; but 
 
 formance, n fui- (lant who has agreed with the vendor to execute a release, in order to 
 another agree- perfect the title, may be decreed to execute such release, the bill is mul- 
 tbiTd person to '^•'^*'''0"s • f""" ^^6 purchaser ought not to be harassed with a distinct 
 enable the ven- agreement between the vendor and a third person, althougfh such acree- 
 
 dor to perfect ^ ,•,,,- , r r , , 
 
 the title. ment was designed to be subservient to the performance of the purchase 
 
 contract. Reynolds v. Johnston, 7 Law J. (O. S.) Ch. Rep. 45. 
 Bill for an ac- ^ bill for an account of a testator's e tate, and also to set aside sales 
 
 count and lor 
 
 avoiding sales, made by the e.Necutor and trustee to himself and another person, is 
 
 multifarious. Salvidge v. Hijde, Jac. 151. 
 Md^edemptfon'! ^ ^"^^ ^^^^ ^^^ "^® administration of general personal estate and for 
 
 the redemption of a mortgage is multifarious. Pearse v. Hewitt, 7 
 
 Sim. 471. 
 Bill of revivor o{ jf (q a foreclosure suit, a third person, who has some interest in the 
 
 a toreclosure ' r ' 
 
 suit introducing equity of redemption, is made a party ; and in a bill of revivor siipple- 
 
 B question lis to ^ , ,^ • • » i i • i r . i- i ■ i . 
 
 a lien claimed niental matter is introduced, with reference to a lien claimed by the 
 
 by a mortgagor- mortgagor on land in the mortgagee's possession which was allotted 
 
 to the mortgagor in respect of the mortgaged premises, such a bill is 
 
 multifarious as regards such third person. Lloyd v. Douglas, 4 Y. & 
 
 C. Eq. Ex. 448. 
 
 Mixing up dis- Where a bill is not sustainable as a bill of interpleader, and it mixes 
 tinct claims. ... ,. ^im iri ., 
 
 up drstinct claims of dinereiit defendants, although connected with 
 
 the same subject-matter, it is multifarious. Bignold v. Audland, 11 
 
 Sim. 24. 
 
 debti"d^^e^t'''^d°/ ^ '^''^ praying for a declaration that a person to whose nominee two 
 
 feient persona, debts due to different creditors have been assigned may be declared a 
 
 trustee of such debts for another party, and may be restrained from 
 
 proceeding at law upon judgments obtained for them, is demurrable 
 
 for multifariousness. Miller v. Walker, 9 Jur. 107. 
 
 Account of two A bill for an account of agencies with two different firms, though 
 
 agencies. carrying on the same concern, and only different by reason of a chanse 
 
 of some of the partners, is multifarious, if the allegations of the bill 
 are such, that, when taken most strongly against the plaintiff, they 
 show that the dealings with the two firms were separate transactions. 
 Benson v. Haljield, 5 Beav. 546. 
 
 Account of Where a person makes a shipment of goods on account of another, 
 
 transactions be- , , , . , , , r i . 
 
 jween two per- and advances money to him upon the goods, and afterwards the same 
 with an'account P^fson and his partner make other shipments of goods on account of 
 oi tr»nsactions such other party and his partner, and advance money to them upon 
 and their respec- those goods ; and the proceeds of all the shipments are remitted to 
 another firm ; and the surviving partners of that firm file a bill of in- 
 terpleader against the assignees of the person who made the first ship-
 
 S. II. p. I.] DEMURRERS. 213 
 
 to prevent the splitting of causes, and consequent 
 
 ment, and his partner, and the assi^mees of the person on whose ac- 
 count the first shipment was made and his partner, and pay the balance 
 of all the remiltancf s into court, as one balance ; and the assiijjnees of 
 the person who made the first shipment and his partner file a bill 
 against the surviving partners of the firm to whom the remittances 
 were made, and against the assignees of the person on whose account 
 the first shipment was made and his partner, for an account of what is 
 due to the person by whom the first shipment is made, and also of what 
 is diio to him and his partner, on account of their advances ; the suit 
 is multifarious ; because the first transaction between two persons, 
 when alone, ought not to be mixed up with the transactions between 
 the same persons, after each had entered into partnership with another 
 person. Miller v. Crawford, 9 Law J. (O. S.) Ch. R. 193, L. C. 
 
 Cases where a bill is not multifarious. — It does not follow, as a neces- Muitifariousnes* 
 
 , . . , . , 1 . 1 1 • I ■ /• ■ as to one defen- 
 
 sary consequence, that in every case in which a bill is multifarious as dant. 
 to one defendant, it is multifarious as to the rest. Alt. Gen. v. Cradock, 
 8 Sim. 4.7. 
 
 Where a case is an entire case as against one defendant, the court Where one de- 
 
 1 1 • • 1 1 <• 1 • fendant is only 
 
 Will not attach weight to the objection that another defendant is con- connected with 
 nected only with some portion of the whole case: for, in order to obvi- J'aTe°a8^°a"a?n^ 
 ate this objection, it would be necessary to split an entire case. And ^no^^^^'" defend- 
 hence where a bond is improperly given to a person by a corporation, 
 and a rate is imposed to provide a fund to meet the demand upon the 
 bond, an information seeking protection against both the bond and the 
 rate is not multifarious: for as the illegality of the bond creates an 
 illegality in the rate, there is an entire case as against the corporation ; 
 and though the obligee has nothing to do with the rate, but only with 
 the bond, yet the information is not multifarious as to him. Alt. Gen. 
 V. Parr, 8 CI. &l Fin. 409. 
 Several charitable trusts, especially if the property is small, may be Comprising »er- 
 
 . . "^ -^ 1 'J eral charitable 
 
 comprised in one inlormation, where one and the same party is pro- trusts in oneia- 
 ceeded against (such as a city company,) and where the several trusts, °"^^ '°°' 
 though created by different persons, and at different times, have all a 
 common suliject-matter (such as monies given in trust to be lent,) and 
 where the persons beneficially interested in the trusts belong to the 
 same body, (as for instance, to the company proceeded against), al- 
 though very different descriptions of persons among that body are 
 respectively the objects of the respective charities. Alt. Gen. v. .Uer- 
 chant Tailors^ Company, 1 M. & K. 189. 
 
 Where an information is filed against the trustees of certain chari- Seeking tho gen 
 
 , . , . . crnl ndiuinistra- 
 
 ties, antl against a person who, in concert with one of the tnif^tees, tion ot b charity 
 has eflfected an exchange of property in which they were jointly inter- ^^"respe^t'^of**
 
 213 DEMURRERS. [ChAP. II. 
 
 multiplicity of suits, will allow a demurrer upon 
 this ground (^). 
 
 (g) 1 Vern. 29; Edgworth v. See above, pp. 169, 170. [See the 
 Swift, 4 Bro. P. C. 654, Toml. Ed. form of such a demurrer, Willis 466. 
 
 fraud 88 to a • psted for a portion of the charity estate, and such information alleges 
 partbyonetruB. ^]^^^ suc\i exclianofe is fraudulent, and that the charity estate has been 
 
 tee and a third ° •' 
 
 person. improperly managed by the trustees, and prays a general account, and a 
 
 scheme, and that the exchange may be set aside ; a demurrer for mul- 
 tifariousness put in by the party who had colluded with the trustee in 
 the exchange will be overruled. Alt. Gen. v. Cradock, 3 My. &. C. 85. 
 
 Account of both Where executors have possessed themselves of the rents and profits 
 
 real and perBon- of real estate and personal estate devised and bequeathed to diiferent 
 al estate- 
 parties, and have blended both together, so that they cannot be dis- 
 tinguished, a bill filed against the executors and the per-ons interested 
 in the personal estate and the rents and profits of the real estate, for 
 an account of both, is not demurrable for multifariousness or misjoin- 
 der. Sanders v. Kelsey, 10 Jur. 833. 
 Administration The administration of the real and personal estates of two deceased 
 partaers^in o^e partners, towards the payment of their joint and separate debts, may 
 *"*'• be comprised in one suit; for the rule is, that the joint estate must 
 
 first be applied in payment of the joint debts, and then the surplus of 
 the separate estate of each partner which may remain after payment 
 of the separate debts of that partner is contributable to supply the 
 deficiency of the joint estate to pay the joint debts. And those who 
 are interested in the surplus of the separate estate of one partner, 
 ought to be present to a suit instituted for the purpose of ascertaining 
 what is the surplus of the separate estate of another partner. Brown 
 V. Douglas, 11 Sim. 283; Brown v. Weaiherby, 12 Sim. 6. 
 Account of the Where an action is brought by an administrator of an intestate 
 de^e^ased*^ per" against the executors of the widow of the intestate, who had possessed 
 •<">8. assets without having taken out administration, for monies alleged to 
 
 be due to the intestate's estate ; and the executors of the widow and 
 the children of the intestate file a bill against his administrator, for an 
 account both of the estate of the intestate and of the estate of the 
 widow, and of what is due from the firmer estate to the latter, and for 
 an injunction to restrain the action, the bi.'l is not multifarious; for in 
 such case the court cannot administer relief without taking the ac- 
 counts of both estates. Leiois v. Edmund, 6 Sim. 251. 
 Bill by different Where a policy of insurance is underwritten by Lloyd's under- 
 wrUers°^in°^e" writers, and another policy is eflTected by the same party with the cor- 
 ■pect of distinct poration of the London Assurance, these bodies of underwriters may 
 
 policies. '
 
 S. II. p. I.] DEMURRERS. 214 
 
 A discovery being compelled upon a bill praying murror t" "ho"' 
 
 ■''=>'■ * * ^ relief extends to 
 the discovery. 
 
 join in one bill against the assured. Mills v. Campbell, 2 Y. & C. 
 Eq. Ex. 391. 
 
 Where a bill i.s filed by the drawer and acceptor of four bi'ls of ex- Suit in respect 
 chancre, against a pi^rson to whom they had b^en delivered for the exchange, 
 purpose of being discounted, and against his indorsee^, and against 
 subseq'ient indorsees who are the holders of the bills, praying' for a 
 delivery up of the bills on the ground of a fraud to which all the 
 defend ints were privy, such a bill is not multifarious. Lord Foley v. 
 Carlon, 1 Younge, 373. 
 
 If a bill is filed by two executors for an account of assets received Bill for a set-off, 
 
 r a> c '^"'^ '" rcatram 
 
 by an agent, and for the performance of an agreement for a set-on ot actions on pro- 
 such assets against monies lent by him to them individually on their [^nxecutora!*^ 
 respective separate accounts, and for an injunction to restrain an 
 action brought after riotice of such agreement, by indorsees of pro- 
 missory notes given by them for the monies so lent ; the bill is not 
 mu'tifarious, nor is there a misjoinder of plaintiffs. Davis v. Cripps, 
 2 Y. & C. Ch. Ca. 430. 
 
 Where the executors of a testator refuse to file a bill to have a tes- Bill to have aa 
 tator's estate recouped out of a fund in court, in respect of a debt paid ^^'^ mort-age 
 out of that estate, which oun^ht to have been paid out of such fund, and a"'' judgment 
 there are no assets of the testator remaming tor payment ot ajudgment sum recouped, 
 creditor and of a morttragee, Ahose mortgage debt has priority over th? 
 judgment debt ; the judgment creditor may, without any objection on 
 the ground of multifariousness, file a bill to have the testator's estate 
 recouped, and the rnortgago and judgment debts paid out of the sum 
 as to which the estate of the testator is sought to be so recouped ; and 
 for that purpose the mortgagee and the party interested in the fund 
 above mentioned, as well as the executors, are proper parties. Lan- 
 castor V. Eoors,A Beav. 158. 
 
 A bill to restrain commissioners under an act of parliament from Rill to reatrai* 
 
 , , . . , r 1 1 r 1 differpnt acts of 
 paving one part and draming anot'ier part ot ttie same plot ot groiin 1, the same per- 
 is not multifarious. Birley v. The Conslablet, <^c. of CharUon-upon - *"°*' 
 Med/ock, 3 Beav. 499. 
 
 Where by a deed executed br^fore marriage, a husband vests a fund Bi" >" ""fispoct »' 
 
 -' " property com- 
 
 in two trustees, upon trust for his wife for life, and, after her decease, prised in two 
 for the benefit of the chi'dren of the marriage, with a proviso that the 
 persons to be appointed guardians by his will, with the trustees, shall, 
 after the decease of his wife, have authority to apply the interest and 
 part of the capital for the maintenance and advancement of the chil- 
 dren; and by another deed, after marriige, he vests another fund in 
 two other trustees, upon similar trusts, with a similar proviso ; and by 
 his will, after some specific bequests to his wife, he bequeaths his pro-
 
 215 DEMURRERS. [ChAP. IL 
 
 relief, for the purpose of enabling the plaintiff to 
 
 , ! f ■ 
 
 perty to tliree of the trustees of the dt?ed3, upon cortdin trusts for the 
 benefit of his cljildron, and appoints them executors and guyrdians of 
 his infant children ; and the wife and ciiildren file a bill ag^ainst the 
 four trustees for a performance of the trusts of the deeds, and for an 
 account of the personal estate and debts, and an administration of the 
 property ; a demurrer by the three trustees appointed guardians, put 
 in on the ground of multifiriousness, will be overruled ; for there is a 
 common interest in all the plaintiffs under all the instruments ; and all 
 the defendants are accounting parties, though they are not all parlies 
 to all the instruments; and the three demurring defendants have all 
 an interest, nut only ander the will, but also under the deeds, by force 
 of the provisos, therein contained. Campbell v. Mackay, 1 My. & C. 
 602. 
 Seeking relief Where third parties have been implicated in what they know to be 
 
 against fraud, .... ,., /-./-• • i i i 
 
 and also a gene- a misapplication ol the lunds 01 a joint-stock company, they may be 
 
 tTon" ™™'*''^*' made defendants to a bill by soir.e of the shareholders of the company, 
 
 although the bill, besides seeking relief against such third parties 
 
 prays also for the general administration of the assets of the company. 
 
 Lund V. Blanshard, 4 Hare, 9. In the case in which this point arose, 
 
 the company was a banking company, and the third party was another 
 
 banking company. 
 
 Payment of a If a cestui que trust of a sum of money covenanted to be settled 
 
 peachmentof a seeks payment thereof out of the assets of the covenantor, and for a 
 
 another'^credi"^ general administration of his personal estate for that purpose, if assets 
 
 toT. be not admitted, and also seeks to impeach a prior security claimed 
 
 over the whole of the covenantor's property by one of the trustees of 
 
 the settlement ; a demurrer by him for multifariousness in the usual 
 
 form is bad, because all the matters may come into consideration ip the 
 
 course of taking the account, and therefore are not "distinct," and the 
 
 defendant trustee is " interested" in the account as trustee. Addison 
 
 V. Walker, 4 Y. & C. Eq. Ex. 442. 
 
 Distinct reme- ^ \)[[\ jg jjpt multifarious because it seeks to enforce one remedy 
 
 dies against dif- -' 
 
 ferent defend- against one defendant, and another remedy, in addition to that remedy, 
 against another defendant. Manners v. Rowley, 10 Sim. 470. 
 
 Right mode of taking the objection of multifariousness. — In a case 
 where defendant demurred to a bill for multifariousness, and it was 
 then amended so as to preclude a demurrer on that ground, but he in- 
 sisted on the same objection in his answer to the amended bill, Sir J. 
 Wigram, V. C. said, " It would certainly be most unjust if a plainliflT 
 could compel a defendant to continue a party to a multifarious record, 
 merely by inserting false alleg itions in the bill. A plea that a bill is 
 multifarious is a defence I have never seen, though I know such a plea 
 
 ants.
 
 S. II. p. I.] DEMURRERS. ^ 216 
 
 obtain that relief, the discovery is in general inciden- 
 tal to the relief (/i), and a demurrer to the reliefcon- 217 
 sequently extends to the discovery likewise (i) (1). 218 
 
 (h) 1 Sim. & Stu. 93. the plaintiff is entitled, in wliich case 
 
 (t) See Baker V. Mellish 10 Vee. a general demurrer would perhaps be 
 
 544 ; 3 Meriv. 502. It may happen, overruled. See Brandon v. Smids, 
 
 however, that the relief sought may 2 Ves. Jun. 514; Brandon v. Johnson, 
 
 be consequential to discovery to which ib. 517. 
 
 has, whether successfully or not, been attempted. ... In what form 
 this objection may be successfully taken or resisIeJ, according to the 
 Btrict mode of pleading, I need not now inquire." But the learned 
 judge added, "The objection of multifariousness is one which should 
 be taken in limine. . . . The defendant may be subjected to the ex- 
 pense of taking copies of papers relating to matters with which he 
 has no conci rn, and be kept before the court on the discussion of 
 points in which he is net interested. If the defendant does not take 
 the objection in limine, the court, considering the mischief as already 
 incurred, does not, except in a special case, allow it to prevail at the 
 hearing. All that the court, in this case, can do, is to protect the defen- 
 dant from the costs incurred, if it should hereafter appear lie has been 
 improperly subjected to costs." Benson v. Hadfuld, 4 Hare, 39, 40. 
 
 (1) A demurrer to the specific relief prayed will not extend to the whero a do- 
 discovery sought, where the bill states a clear case for other relief, dop« not extend 
 which can be given under the prayer for general relief, and to which tod'^covery. 
 the discovery sought may be ancillary. Deare v. Attorney General, 1 
 Y. &. C. Eq. E.V. 197. 
 
 If a bill solely maintainable for discovery, prays relief, it would in 
 England, but not in America, be open to demurrer to the whole bill. 
 The rule in England was formerly, that if a bill fr discovery and relief 
 was good for discovery only, a general demurrer to the whole was bad^ 
 for though the ])arty was not entitled to relief, he was not to be preju- 
 diced for asking too much. Story Eq. PI. {312, and note 2, citing 
 Mitf. 183-4 and other authorities. The proper course in New-York, 
 ie held to be to demur to relief and answer to discovery. Brownell v. 
 Curtis, 10 Paige 210 ; Higginhntliam v. Burnet, 5 Johns C. R. 184; 
 so in Supremo Ci urt U. S., Livingston v. Story, 9 Peters R. 632, 658 ; 
 Whitbeck v. Edgar, 2 Barb. Cli. I{. 106. 
 
 Defendant may answer and make di.-covery sought by a bill for dis- 
 covery and relief, and demur as to the relief only. In cases where 
 complainant is entitled to the relief, but not to the discovery <if tlie facts 
 upon which the claim to relief depend?, because the discovery might 
 criminate defendant to subject him to a forfeiture, or would be a breach
 
 218 DEMURRERS. [ChAP. II. 
 
 But as the court entertains a jurisdiction in certain 
 cases for the mere purpose of compelling a disco- 
 very, without administering any relief, it was for- 
 merly conceived that though a plaintiff prayed by 
 his bill relief to which he was not entitled, he might 
 [184] yet show a title to a discovery; and therefore, though 
 a demurrer might hold to the relief, the defendant 
 might notwithstanding be compellable to answer to 
 the discovery, the bill being then considered as in 
 effect a bill for a discovery merely {k). This, how- 
 ever, has since been determined otherwise (I) ; and 
 where a plaintiff entitled to a discovery added to 
 his bill a prayer for relief (m), a demurrer has been 
 
 (k) See Fry v. Penn, 2 Bro. C. C. against the interference of the court, 
 
 280 (1). it must appear from the manner in 
 
 {I) See Price v. James, 2 Bro. C. which the plaintiff states his case 
 
 C. 319. that he seeks the discovery as inci- 
 
 (m) It is presumed, that in order dental to the relief. See cases in the 
 
 to the defendant being t'lus able by next note, 
 demurrer wholly to protect himself 
 
 of confidence which some principle of public policy wl!l not permit, 
 defendant may answer as to the relief and demur as to the discovery. 
 But where the same principle upon which the demurrer to the discovery 
 of the truth of the allegations contained in the bill is attempted to be 
 sustained; is equally applicable as a defence to the relief souglit by 
 the bill, the defendant cannot demur to the discovery only and answer 
 ae to the relief. Brownell v. Curtis et. al, 10 Paige R. 210. 
 
 Where the bill seeks relief which the court has no power to grant, 
 as for redemption of land sold for taxes, and also a discovery as to the 
 facts connected with the sale, and as to an evasion of a tender, so as 
 to prevent redemption within two years, a demurrer to the whole may 
 not be too broad, there being no itverment that any suit at law was 
 pending or about to be brought, in which a discovery may be material, 
 the demurrer is proper for that cause. The bill was dismissed without 
 prejudice to an action at law. Mitchell et al. v. Green et al, 10 Met- 
 calf R. Mass. 101, 108. 
 
 (1) [Also Higginboiham v. Burnet, 6 J. C. R. 184; Laight v. Mor* 
 gan, 1 J. C, 429; S. C. 2 C. C. E. 344.]
 
 S. II. p. I.] DEMURRERS. 219 
 
 allowed (n). And where a defendant had demur- duw""^ a°nd' 
 red to the discovery sought by a bill,/^>'r want ^^°°»'°^«"^e*- 
 title in the jylaintiff to require the discovery, but 
 had omitted to demur to rehef prayed (I), to which 
 that discovery was merely incidental, it was con- 
 ceived the demurrer must, in point of form, be over- 
 ruled ; for the demurrer, applying to the discovery 
 only, admitted the title to relief, and consequently 
 admitted the title to the discovery, which was only 
 incidental to the relief (^). But though a plaintiff [185] 
 may be entitled to the relief he prays, there may 
 yet be reasons to induce a court of equity to forbear 
 compelling a discovery {p). 
 
 It remains therefore to consider the objections to Grounds of de. 
 
 "' murrer to oia- 
 
 a bill which are causes of demurrer to discovery covery. 
 
 (n) Collisv. Swayne,4 Bro. C. C. tice, and possibly a greater incouve- 
 
 480 ; Laker v. Rolle, 3 Ves. 4 ; Rijves nience (2). 
 
 V. Ryvps, 3 Ves. 343; 6 Ves. C3 ; 6 (o) Morgan v. Harris, in Ch. 31 
 
 Ves. (J8G ; 8 Ves. 3 ; Gordon v. Simp- Oct. 178G, reported 2 Bro. C. C. 121 ; 
 
 kinson, 11 Ves. 509; 17 Ves. 216; Waring v. Mnckrcth, Forres^i, ]2D. 
 
 1 Ves. & Bea. 539 ; 2 Ves. & Bea. (p) A plaintiff may be entitled to 
 328; Jones v. Jones, 3 Meriv. 161 ; relief in equity, independently of the 
 3 Meriv. 502. This may probably discovery, 1 Swanst. 294. And there 
 have the effect of compelling a plain- may be instances in which a defend- 
 tifF in a doubtful case to frame his ant, although he should ihink proper 
 bill for a discovery only in the first to give the discovery, may yet de- 
 instance ; and, having obtained it, by mur to the relief. 2 Atk. 157; 
 amending his bill to try the question Ilodgkin v. Longden, 8 Ves. 2; 
 whether he is also entitled to relief; Todd v. Gee, 17 Ves. 273. 
 
 which was formerly a frequent prac- 
 
 (1) The 36th order of August, 1841, does not enable a defendant 
 to demur to discovery without demurring to the relief. Dell v. Hale, 
 
 2 Y. & C. Ch. C. 1. 
 
 (2) {S.nAse^ Bullerworlh \. Bailey, \5 We?.. 361; Crowv. Tyrell, 
 2 Mad. C. R. 409; Lousada v. Templer, 2 Russ. 661 ; M'DongiU v. 
 Miln, 2 Paige's C. R. 326; al-o page 201, post; Allen v. OrpelanJ, 
 7 Price's R. 622 ; Melish v. Richardson, 1 1 Price, 630 ; Jackson v. 
 Strong, 13 Price, 494,]
 
 220 DEMURRERS. [CuAP. II. 
 
 only. These are, I. That the case made by the 
 bill is not such in which a court of equity assumes 
 a jurisdiction to compel a discovery : II. That the 
 plaintiff has no interest in the subject, or no inte- 
 rest which entitles him to call on the defendant for 
 a discovery : III. That the defendant has no inter- 
 est in the subject to entitle the plaintiff to institute 
 a suit against him even for the purpose of disco- 
 very ; IV. Although both plaintiff and defendant 
 may have an interest in the subject, yet that there 
 is not that privity of title between them which gives 
 the plaintiff a right to the discovery required by his 
 bill : V. That the discovery if obtained cannot be 
 material : and, VI. That the situation of the de- 
 fendant renders it improper for a court of equity 
 to compel a discovery (1). 
 J.wantofjuriB. 1. Where a bill prays relief, the discovery, if 
 material to the relief, being incidental to it, a plain- 
 tiff showing a title to relief also shows a case in 
 which a court of equity will compel a discovery, 
 unless some circumstance in the situation of the 
 [186] defendant renders it improper. But where the bill 
 is a bill of discovery merely, it is necessary for the 
 plaintiff to show by his bill a case in which a court 
 of equity will assume a jurisdiction for the mere 
 
 221 purpose of compelling a discovery. This jurisdic- 
 
 Demurrer on (1) To a bill by legatees, whose legacies are charged on real estate, 
 the dUcovery* charging that the testator was tenant in fee simple, and not tenant in 
 fendMt^stirt'^^' ^^''' °^ ^"^^ ^^^^ estate, as alleged by the defendant, or that only a 
 small portion thereof was entailed, and seek ng for a discovery and pro- 
 duction of the deed of entail, a demurrer on the ground that it relates 
 to the defendant's title will be allowed. Wilson v. Forster, 1 Younge, 
 281. 
 
 On the subject of discovery, the reader is referred to the learned 
 works of Sir James VVigram and Mr. Hare.
 
 S. II. p. I.] DEMURRERS. 221 
 
 tioij is exercised to assist the administration of jus- 
 tice in the prosecution or defence of some other 
 suit, either in the court itself or in some other 
 court (q). Where the object of a bill is to obtain a 
 discovery to aid the prosecution or defence of a suit 
 in the court itself, as the court hr.s already jurisdic- 
 tion of the subject, to state the suit depending is 
 sufficient to give the court jurisdiction upon the bill 
 of discovery (2). But if a bill is brought to aid, by 
 
 (q) See Moodaly v. Moreton, Dick. A discovery has been compelled to 
 
 652 ; S. C. I Bro. C. C.469 ; Bishop aid the juiisdictiou of a foreifrii court. 
 
 of London v. Fytche, 1 Bro. C. C. 96 ; Crowe and othersv. Del Risand Val- 
 
 Caidule v. Watkins, 5 Madd. 18. Zeg-o, in Chan. 11th July, 1769 (1). 
 
 (1) [See the form of such a bill, Willis, 316. It is well established, 
 that whether the action, in aid of which a discovery is sought, be 
 founded on contract or in tort, if the plaintiff has an equitable right, a 
 discovery will be enforced. Skinner v. Judson, 6 Day N. S. 528, and 
 cases there referred to; Northrop v. Hatch, 6 Conn. R. 361. After 
 a verdict at law, the party conies too late with a bill for discovery. 
 Duncan v. Lyon, 351.] 
 
 Jn Bent v. Young, 9 Sim. 191, 19-', Sir L. Sliadwell, V. C, observed, 
 that the demurrer in this case was a speaking demurrer; and that ^he 
 Lord Chancellor may very probably have overruled the demurrer on 
 that ground, without at all entering info the consideration of the ques- 
 tion, whether the court will enforce discovery in aid of proceedings in 
 a foreign court. 
 
 The authorities, says Story, are contradictory as to a bill in aid of 
 prosecution or defence of a foreign suit. In Bent v. Young, 9 Sim. 
 R. 180, the V. C. held it would not be in aid of a defence, and that Crowe 
 v. Del Ris, cited in Mitford, 186, n. (q), do not support the doctrine. 
 But in Mitchell v. Smith, 1 Paige's C. R. 287, it was held that sucii bill 
 would lie. Story's Eq. PI. § 311. 
 
 [A foreign judgment cannot bo questioned in the courts in this county. 
 Therefore, a bill for a discovery and commission to examine witnesses 
 abmad, in aid of the complainant's defence to an action brought in this 
 country on a foreign judgment, is demurrable. Martin v. Nicols, 3 
 Sim. 458.] 
 
 (2) [It ought to state enough to enable the court to see that the 
 ends of justice require its interposition ; and tiie facts sought to be dis-
 
 221 DEMURRERS. [ClIAP. 11. 
 
 a discovery, the prosecution or defence of any pro- 
 ceeding not merely civil in any other court, as an 
 indictment or information, a court of equity will not 
 exercise its jurisdiction to compel a discovery, and 
 the defendant may demur (r). And in the case 
 of suits merely civil in a court of ordinary jurisdic- 
 tion, if that court can itself compel the discovery 
 required, a court of equity will not interfere (s). 
 Therefore, where a bill was filed for a discovery of 
 the value of the respective real and personal estates 
 
 (r) 2 Ves. 398 ; and see Thorpe v. (s) 1 Atk. 288 ; 1 Ves. 205 ; Anon. 
 Macauley, 5 Madd. 218 ; Shackell 2 Ves. 451. 
 V. Macaulay, 2 Sim. & Stu. 73 (1). 
 
 covered should be so far stated as to show their pertinency and rele- 
 vancy. AVIntyrev. Mancius, 3 J. C, R. 46; S. Con appeal, 16 J. R. 
 592 ; and see Askam v, Thompson, 4 Price, 330. If the facts depend 
 on the testimony of witnesses, and the court of law can compel their at- 
 tendance, chancery will not interefere. Gelston v. HoyI, 1 J. C. R. 
 643 ; and see Seymour v. Seymour, 4 lb. 409. A bill of discovery must 
 be for matters which lie only within the defendant's knowledge. 
 Bullock V. Boyd, 2 Marsh. 323. A bill of discovery will be sustained 
 to aid the prusecution or defence of a civil suit in a foreign tribunal, 
 Mitchell V. Smith, 1 Paige's C. R. 287. Vance v, Andrews, 2 Barb. Ch. 
 Rep. 370. [And see pages 200, 201, pos'.] There is no limitation, in 
 point of time, within which a bill for discovery in aid of an action at law 
 must be filed. Munt v. Scott, 3 Price, 477. 
 
 Chancellor Walworth, in the case of Diasv. Merle, A Paige C.R. 259, 
 fecognises another species of discovery-bill where no relief is prayed : 
 namely, a bill of discovery in aid of the original (chancery) suit. See 
 an extract, from his opinion at page 62, ante, in note.] 
 
 (1) [Patterson v. Patterson, 1 Hay ward's R. 167 ; M^lntyrev. Man- 
 cius, on appeal, 16 J. R. 276 ; Skinner v. Judson, 8 Day, 628. But it 
 is said, that if the forfeiture or penalty is waived by those who are enti- 
 tled to it, or is barred by the stntute of limitations, it no longer shields 
 .the party from a discovery. Skinner v. Judson, supra. See the form of 
 a demurrer where a discovery would subject the defendant to pains and 
 penalties and forfeitures. Willis, 477 ; and observe note (a) there. 
 Also page 19i, post.]
 
 S. II. p. I.] DEMURRERS. 222 
 
 of the inhabitants of a parish in which a church rate 
 had been assessed, and of the application of the [187] 
 money collected, a demurrer was allowed ; because 
 the ecclesiastical court, to which the ordinary juris- 
 diction belonged, was capable of compelling the 
 discovery (t). 
 
 II. A bill must show an interest in the plaintiff n. wnntonn- 
 in the subject to which the required discovery re- i;|;;-"lif^"n"on* 
 lates (u), and such an interest as entitles him to call for a'^dSvTiV- 
 on the defendant for the discovery. Therefore 
 where a plaintiff filed a bill for a discovery merely, 
 to support an action which he alleged by his bill he 
 intended to commence in a court of common law, 
 although by this allegation he brought his case with- 
 in the jurisdiction of a court of equity to compel a 
 discovery, yet the court being of opinion that the 
 case stated by the bill was not such as would sup- 
 port an action, a demurrer was allowed (x) ; for un- 
 less the plaintiff had a title to recover in an action 
 at law, supposing his case to be true, he had no title 
 to the assistance of a court of equity to obtain from 
 the confession of the defendant evidence of the truth 
 of the case (y). And upon a bill filed by a credi- 
 tor, alleging that he had obtained judgment against 
 his debtor, and that the defendant, to deprive him of 
 thebenefit of his judgment, had got into his hands 
 goods of the debtor under pretence of a debt due 223 
 
 (t) Dunn V. Coalcs, 1 Atk. 288. (x) Dehbieg and Lord Howe, in 
 
 (u) Ramere v. Rawlins, Rep. Chan. Hil. 1782 ; cited 3 Bro. C. C. 
 
 Temp. Finch 36; Newman v. Hold- 155; Wallis v Duke of Portland, 
 
 er, ib. 44 ; and see 2 Ves. 247 ; 3 Ves. 494 ; Lord Kensingto'h v. 
 
 Northleigh v. Luscomhe, Anil)l. 612; Mansell, 13 Ves. jun. 240. 
 
 and Wright v. Pluintree, 3 Madd. (y) See The Mayor of London v. 
 
 481. Levy, 8 Ves. 398.
 
 223 DEMURRERS. [ChAP. II. 
 
 [188] to himself, and praying a discovery of the goods ; 
 the defendant demurred, because the plaintiff had 
 not alleged that he had sued out execution, and be- 
 cause until he had so done the goods were not 
 bound by the judgment, and consequently the plain- 
 tiff had no title to the discovery ; and the demurrer 
 was allowed (?/). 
 m. Want of in. HI- Unlcss a defendant has some interest in the 
 
 lerest in the de« i • i i •' i •. J 
 
 fendant. suoject, hc may be examined as a witness, and 
 
 therefore cannot in general be compelled to answer 
 a bill for a discovery (z) (1) ; for such a bill can only 
 be to gain evidence, and the answer of the de- 
 fendant cannot be read against any other person, 
 not even against another defendant to the same 
 bill {a) (2). But if the bill states that the defend- 
 ant has or claims an interest, a demurrer, which 
 admits the bill to be true, of course will not hold (V), 
 though the defendant has no interest ; and he can 
 then only avoid answering the bill by plea or dis- 
 claimer. There seems to be an exception to the 
 
 (y) Angell v. Draper, 1 Vern. 399. 426 ; 1 Yes. Jun. 294, uote (e). Fen- 
 
 But see Taylor v. Hill, 1 Eq. Ca. ton v. Hughes, 7 Ves. 287 ; 14 Ves. 
 
 Ab. 132. 252 ; How v. Best, 5 Madd. 19. 
 
 («) Steward v. E. I. Camp. 2 (a) 2 Vern. 380 ; 3 P. Wms. 311, 
 
 Vern. 380 ; Dineley v. Dineley, 2 and ib. note (A). 
 
 Atk. 394 ; Plummer v. May, 1 Ves. (6) 1 Ves. 426, 
 
 (1) Jones V. Mauni, 3 Y. & C. Eq. Ex. 347. Payne v. Cowan el al. 
 1 Smedes & Marsh. C. R. Miss. 27. 
 
 [See the form of such a demurrer, Willis, 470.] 
 [Hampton v. Hampton, Yen). «St Scriv. 614; Crane v. Deming,! 
 Day's R. 387.] 
 
 (2) [And if a bill be filed against two, and one has no interest, a 
 dersurrer will hold. Thus, a bill was filed against husband and wife 
 showing an interest in the husband, but none in the wife. Both joined 
 in a general demurrer; and it was sustained as to her. Crane v. 
 Deming, supra. See a demurrer to a bill where the defendant cou!d 
 be examined as a witness, Willis, 472] Wooden v. Morris, 2 Green's 
 C. R. 65.
 
 S. II. p. I.] DEMURRERS. 223 
 
 rule in the case of a corporation ; for as a corpora- 
 tion can answer no otherwise than under their com- 
 mon seal, and therefore, though they answer falsely, 
 there is no remedy against them for perjury, it has 224 
 
 been usual, where a discovery of entries in the 
 l)ooks of the corporation, or of any act done by 
 the corporation, has been necessary to make their 
 secretary or book-keeper or other officer a party (c) ; [189] 
 and a demurrer because the bill showed no claim 
 of interest in the defendant has been in such case 
 overruled {d). So where bills have been filed to 
 impeach deeds on the ground of fraud, attornies 
 who have prepared the deeds, and other persons 
 concerned in obtaining them, have been frequently 
 made defendants, as parties to the fraud com- 
 plained of, for the purpose of obtaining a full dis- 
 covery ; and no case appears in the books of a de- 
 murrer by such a party because he had no claim 
 of interest in the matter in question by the bill. 
 Indeed an attorney under such circumstances, being 
 brought as a party to the suit to a hearing, has 
 been ordered to pay costs (e) ; apparently on the 
 same ground as costs were awarded againt arbi- 
 trators in the cases of their misconduct before 
 noticed (/). 
 
 (c) Anon. 1 Vern. 117 (1). (e) Bennet v. Vade,2 Atk. 324; 
 
 {(1) Wychv. Meal, 3 P. Wm3.3m; 1 Sch. & Lefr. 227; Fenwick v. 
 
 7 Ves. Juii. 289 ; 14 Ves. 252, et seq.; Reed, 1 Meriv. 11. 
 Gibbons V. Waterloo Bridge Comp. (/) Vid. sup. p. 187. 
 5 Pri. Ex. R. 491. 
 
 (1) [And see Vermilyea v. The Fullon Bank, 1 Paige's C. R. 37; 
 President, 4-c. nf Fulton Bank v. Sharon Canal Co., lb. 219; 2 Re- 
 vised Statutes of N. Y. 465, \ 52 ; also p. 103, note, ante.'] 
 
 20
 
 224 DEMURRERS. [ChAP. II. 
 
 lV^be°tween" I^- Although both plaintiff and defendant may 
 dlTfendi^t^ ""'' have an interest in the subject to which the disco- 
 very required is supposed to relate, yet there may 
 not be that privity of title between them which can 
 give the plaintiff a right to the discovery. Thus 
 where a bill was filed by a person claiming to be 
 
 225 lord of a manor against another person, also claim- 
 ing to be lord of the same manor, and praying, 
 amongst other things, a discovery in what manner 
 the defendant derived title to the manor, the de- 
 
 [190] fendant demurred, because the plaintiff had shown 
 no right to the discovery, and the demurrer was 
 allowed (g). 
 
 So where a bill was filed by a person claiming 
 under a grant from the duchy of Lancaster, to be 
 bailiff of a liberty within the duchy, with a right 
 to all waifs, estrays, and other casualties within the 
 .liberty, and all fees and perquisities respecting the 
 same, against the owner of an inn in the liberty, and 
 his tenants, alleging that the inn-yard had been 
 used as a common pound within the liberty for all 
 waifs and strays and casualties : and that the tenant, 
 under demise from the owner, had seized and taken 
 all waifs and strays and other casualties ; and re- 
 ceived the fees and perquisites thereon ; and re- 
 quired the owner to discover how he derived title 
 thereto, and what leases or demises he had made 
 thereof; ademurrertothediscovery was allowed (^). 
 
 (g-) Adderley and Sparrow, in Adderlei/, Hungerfordv. Goreing, 2 
 
 Chan. Hil. 1779. Vern. 38; Stapleton v. Sherrard, 1 
 
 (A) Ritson V. Sir, John Danvers, Verii. 212; Sherbone v. Clerk, 1 
 
 in Duchy C. of Lancaster, 28 Oct. Vern. 273, and Welby and D. of Rut- 
 
 1787, by the Chancellor, assisted by land, 2 Brown P. C. 39, Toml. Ed. 
 
 Lord Loughborough and Mr. Justice were cited ; and Lord Loughborough 
 
 Wilson. The cases of Sparrow v. mentioned a case of Sir William
 
 S. II. p. I.] DEMURRERS. 226 
 
 In general, where the title of the defendant is .not 
 in privity, but inconsistent with the title made by 
 the plaintiff, the defendant is not bound to discover [191] 
 the evidence of the title under which he claims (i). 
 And therefore, on a bill filed by an heir ex parte *• 
 
 materna against a general devisee and executor, 
 who had completed by conveyance to himself a pur- 
 chase of a real estate contracted for by the testator 
 after the date of his will, alleging that there was no 
 heir ex parte paterna, bat that the devisee set up 
 a title under a release from his father as heir ex 
 parte paterna of the testator, and praying a con- 
 veyance to the plaintiff, and seeking a discovery 
 in what manner the father claimed to be heir ex 
 parte paterna, and the particulars of the pedigree 
 under which he claimed, a demurrer to that dis- 
 covery was allowed {k). 
 
 V. As the object of the court in compelling a dis- t^ J^thSS- 
 covery is either to enable itself or some other court '^"^^ 
 to decide on matters in dispute between the parties, 
 the discovery sought must be material, either to the 
 relief prayed by the bill, or to some other suit ac- 
 tually instituted, or capable of being instituted (1). 
 
 Wake and Conyers before Lord J. and Thomson, B. assisting. 
 Northington. See also Corporation {i) Stroud v. Deacon, 1 Ves. 37 ; 
 of Dartmouth v. Scale in Chan. 18 Buden v. Dore, 2 Ves. 445; Samp- 
 Doc. 1717, rep. 1 Cox, R. 416. See son v. Swetteiikam, 5 Madd. 16 ; Ty- 
 a.\80 Ritson V. Sir John Danvers,24 ler v. Draylon, 2 Sim. & Slu. 309, 
 Nov. 1790, on demurrer to an amend- and the cases therein cited ; and see 
 ed bill. Baron Thomson assisting the Chamberlain v. Knapp, 1 Alk. 52. 
 Chancellor ; and Ati. Gen. v. Sir (k) Ivy v. Kekcwich, in Ch. 27th 
 John Danvera, 25 Jan. 1792; Grose, July, 1795, rep. 2 Ves. Juu. 679. 
 
 (1) A bill may be sustained for a discovery in aid of an action at Binofdiscoyerf 
 law, and for an injunction to restrain the delendanta at law in the IcKoS!'"'"'^ ** 
 mean time "from proceeding to apply for judgment as in the case of
 
 227 DEMURRERS. [ChAP. TI. 
 
 If therefore the plaintiff does not show by his bill 
 such a case as renders the discovery which he seeks 
 material to the relief, if he prays relief or does not 
 show a title to sue the defendant in some other 
 • court (I), or that he is actually involved in litigation 
 
 [192] with the defendant, or liable to be so, and does not 
 also show that the discovery which he prays is ma- 
 terial to enable him to support or defend a suit, he 
 shows no title to the discovery, and consequently 
 a demurrer will hold (7)1) (1). Therefore where a 
 bill filed by a mortgagor against a mortgagee to re- 
 deem sought a discovery, whether the mortgagee 
 was a trustee, a demurrer to the discovery was al- 
 
 228 lowed. For as there was no trust declared upon 
 the mortgage, it was not material to the relief pray- 
 ed whether there was any trust reposed in the de- 
 
 (T) Debbieg and Lord Hoice, in Ch. (m) See cases cited supra, note (l) ; 
 
 Hil. 1782; cited 3 Bro. C. C. 155 ; and see 1 Ves. 249 ; 1 Bro. C. C. 97 ; 
 
 Wallis V. Duke of Portland, 3 Ves. and Askam v. Thompson, 4 Pri. 
 
 494 ; The Mayor of London v. Levy, Exch. R. 330 ; Cardale v. Watkins, 5 
 
 8 Ves. 398 ; Lord Kensington v. Madd. 19. 
 Mansell, 13 Ves. Jun. 240. 
 
 nonsuit, or from taking the cause to trial by proviso," although it is 
 
 not clear that the action can be maintained, but yet there is considera- 
 ble ground for argument in support of the action in a court of law. 
 Thomas v. Tyler, 3 Y. & C. Eq. Ex. 255. 
 Bill for a disco- ^ colonial or foreign judgment cannot be questioned in the courts of 
 very and com- this Country: and therefore a bill for a discovery and a commission, 
 
 mission m aid of . ' . . ■, c i i • •m? 
 
 a defence to an to examine Witnesses abroad, in aid oi the plaintiff s defence to an 
 ef'Ti'^judgment! action brought in this country on a colonial or foreign judgment, is 
 demurrable. Martin v. Nichols, 3 Sim. 458. 
 Bill for a com- n) Where a bill is filed for a commission to examine witnesses, 
 
 mission to exa- . • i r i r i • ^ i-i i . 
 
 mine witnesses, and for a discovery in aid of a deience at law tor ah action for libel, it 
 very^tn aid of °a is necessary that the case sought to be made out in equity should con- 
 defence to an ac- stitute a defence at law. 
 
 tion lor libel. 
 
 Reference to It is sufficient, however, to refer to the pleas at law by the words, 
 '-"as by the said plea?, reference being thereunto had, will appear:" 
 for that will enable the court to call for the pleadings at law. Macau- 
 lay V. Shackell, 1 Bligh, 96, (N. S.)
 
 S. II. p. I.] DEMURRERS. 228 
 
 fendant or not (n). So where a bill was filed by a 
 lord of a borough, praying amongst other things, a 
 discovery, whether a person applying to be admit- 
 ted tenant was a trustee, the defendant demurred 
 (o), it being wholly immaterial to the plaintiffs 
 case whether the defendant was a trustee or not. 
 And where a bill was brought for a real estate, and 
 sought discovery of proceedings in the ecclesiasti- 
 cal court' upon a grant of administration, the de- 
 fendant demurred to that discovery, the proceedings 
 in the ecclesiastical court beincr immaterial to the 
 plaintiff's case (p). Again, where a bill, to estab- 
 lish an agreement for a separate maintenance for 
 the defendant's wife prayed a discovery of ill treat- 
 ment of the wife, to make her recede from the 
 agreement, the defendant demurred to the dis- 
 covery (q) which could not be material to the case [19^] 
 made by the bill. But in general, if it can be sup- 
 posed that the discovery may in any way be ma- 
 terial to the plaintiff in the support or defence of 
 any suit, the defendant will be compelled to make 
 it (r) (1) . Thus where a bishop filed a bill ag ainst the 
 
 (n) Harvey v. Morris, Rep. Tern. (q) Hincks v. Nelthrope, 1 Vern. 
 
 Finch, 214. 204. 
 
 (0) Lord Montague v. Dudman, (r) 1 Ves. 205 ; and see Richards 
 2 Ves. 396. v. Jackson, 18 Ves. 472 ; 1 Madd. 
 
 (/)) 2 Atk. 388. (2) R. 192 ; Att. Gen, v. Berkeley, 2 Jac. 
 
 &, W. 291. 
 
 (1) The Court of Chancery compels a discovery in aid of the prose- 
 cution of a suit at law, upon the same principle, and to the same ex- 
 tent that it compels a discovery in aid of the defence of a suit. Lane 
 V. Stebbins, 9 Paige, Cli. R. 62;}. As a general rule, the complainant, 
 who is sued at law and has a legal defence to such suit, and who only 
 needs the aid of the Court of Chancery to obtain a discovory to enable 
 him to establish such defence, must come into the Court of Cliancery, 
 for his discovery before the trial at law. Pa terson v. Bangs, 9 Paige, 
 Ch. R. 627. 
 
 (2) [And see the form of such a demurrer, Willis, 476.]
 
 tie 
 
 229 DEMURRERS. [ChAP. II. 
 
 patron of a living and a clerk presented by him, to 
 
 discover whether the clerk had given a bond of re- 
 
 229 signation, and the patron demurred, because the 
 
 discovery either was such as might subject him to 
 
 penalties and forfeitures, or it was immaterial to the 
 
 plaintiff, the demurrer was overruled ; the court 
 
 declaring a clear opinion that the bond was not 
 
 simoniacal, but conceiving that the discovery might 
 
 be material to support a defence to a quare impeditf 
 
 upon this ground, " that the bond put the clerk 
 
 under the power of tbe patron, in derogation of 
 
 the rights of the ordinary (s)." 
 
 ttedfscote^t°o ^^' Thc situatiou of a defendant may render it 
 
 fendant to%uni impropcr for a court of equity to compel a disco- 
 
 iehment, penal- • i i i i • i • 1 
 
 ties, forfeiture, vorv, cithcr bccausc the discovery may subject the 
 
 or hazard of ti- -^ _ J J J 
 
 n Qdi defendant to pains or penalties, or to some forfei- 
 ^ ture ; or something in the nature of a forfeiture ; 
 or it may hazard his title in a case where in con- 
 science he has at least an equal right with the per- 
 son requiring the discovery, though that right may 
 not be clothed with a perfect legal title (t) (1). 
 
 (5) Bishop of London v. Ffytche, equity have proceeded in the cases 
 
 in Chan. Trin. 1781. In conse- considered under the next head. See 
 
 quence of this decision an answer the cases reported in 1 Bro. C. C. 96^ 
 
 was put in admitting the bond ; and and Cunningham's Law of Simony, 
 
 a quare impedit being brought, it See also Grey v. Hesketh, Ambl. 268. 
 
 was finally determined in the house (t) See Ivy v. Kekewich, 2 Ves. 
 
 of lords against the patron, and he Jun. 679 ; Lord Shaftesbury v. Ar^ 
 
 consequently lost his presentation, rowsmith, 4 Ves. 66; 13 Ves. 251; 
 
 Perhaps, therefore, the overruling 15 Ves. 378 ; Wrightv. Plumtree,3 
 
 the demurrer was in contradiction to Madd. 481 ; Glegg v. Legh, 4 Madd. 
 
 the principles on which courts of 193. 
 
 (1) A defendant is not bound to answer or disclose any facts show- 
 ing that he has been guilty of any act for which he is liable to an in- 
 dictment, or which can subject him to a penalty or forfeiture. Taylor 
 V. Bruen,2 Barb. Ch. R. 301.
 
 S. II. p. I.] DEMURRERS. 229 
 
 It is a general rule, that no one is bound to an- 
 swer so as to subject himself to punishment, in 
 whatever manner that punishment may arise, or 230 
 
 whatever may be the nature of the punishment (u). 
 If therefore a bill requires an answer which may (x) 
 subject the defendant to any pains or penalties, he 
 may demur to so much of the bill (y). As if a bill 
 charges any thing which, if confessed by the an- 
 swer, would subject the defendant to any criminal 
 prosecution (z) (2), or to any particular penalties, as 
 
 (u) 2 Ves. 245, and the authorities guarded as any admission of the truth 
 
 referred to in note. 1 Eq. Ca. Ab. of the charge ; 16 Ves. 69. 
 
 131 ; II Ves. 525 ; 2 Swanst. 214. (z) East India Company v. Camp- 
 
 (x) 1 Atk. 539 ; 1 Swanst. 305. bel, 1 Ves. 246 ; Ckelwynd v. Lin- 
 
 (y) See Billing v. Flight, 1 Madd. rfo«,2 Ves.451 ; Cartiorigfitv. Green, 
 
 R.230(l). And it may be observed, 8 Ves. 405 ; 14 Ves. 65. 
 
 that such a demurrer will not be re- 
 
 (1) [Patterson v. Patterson, 1 Hay ward's (>Jorth Carolina) R. 167; 
 Fleming V. St. John. 2 ISim. 181 ; Wolf v. Wolffs executor, 2 Harris 
 & Gill, 382 ; Livingston v. Tompkins, 4 J. C. R. 415; Lambert v. Peo- 
 ple, 9 Cowen, 578; Northrop v. Hatch, 6 Day's R. 361 ; Leggetl v. 
 Poslleij, 2 Paige's C. R. 699. But the Revised Statutes of the State 
 of New- York, and a statute since passed, have provisions which compel 
 a defendant to make a discovery in many cases where criminal prose- 
 cution and penalties can take place and be exacted. Thus, a defend- 
 ant must answer to a earning transaction at the suit of the loser or any 
 other person. 1 R. S.'664, § 19. As to moneys illegally received for 
 brokerage, /i. 709, J 4. As to moneys and things taken usuriously. 
 lb. 772,^6. And, also, in all cases where the defendant is charged 
 with being a party to a fraudulent conveyance. Laws of 1833, p. 17. 
 See the form of a demurrer where a discovery would subject tiie de- 
 fendant to pains, penalties and forfeitures, Willis, 477. And see page 
 186, a/;/e.] 
 
 (2) A bill of discovery is demurrable where the whole object of it is 
 to obtain a discovery of an illegal assault and imprisonment, with the 
 view of subjecting the defendant to penal consequences. Glynn v. 
 Houston,! Keen, 329. And it would seem that a bill of discovery 
 cannot be sustained in aid of an action for a mere personal tort. 
 lb. 337.
 
 230 DEMURRERS. [ChAP. II^ 
 
 an usurious contract (a), maintenance (h), cham- 
 
 231 perty(6), simony (ri). And in such cases, if the de- 
 fendant is not obhged to answer the facts, he need 
 
 [195] not answer the circumstances, though they have 
 not such an immediate tendency to criminate (<?) 
 
 If the plaintiff is alone entitled to the penalties, 
 and expressly waives them by his bill, the defend- 
 
 (o) Fenton v. Blomer, Tothill, 135 ; Wms. 375 ; Wallis v. Duke of Port- 
 Earl of Suffolk V. Green, 1 Atkyns, land, 3 Ves. 494. 
 450; 2 Atk. 393 ; 22 Vin. Ab. Usury. (c) See 2 Sim. & Stu. 252. 
 Q. 4 ; Whitniore v. Francis, 8 Pri. Ex. ((/) Att. Gen. v. Sudell, Free, in Ch. 
 R. 616. 214 ; 1 Meriv. 401. But see p. 22^, 
 
 (b) Penrice v. Parker, Rep. Temp, note (s). 
 
 Finch. 75; Sharp v. Carter, 3 P. (e) 1 Ves. 247,248; 19 Ves. 227, 
 
 228. 
 
 The court will not compel a defendant to answer allegations, 
 where there is a reasonable probability that by so doing he would 
 subject himself to an indictment for a fraud. Maccallum v. Turton, 
 2 Y. & J. IBS. 
 
 Where a bill seeks a discovery of transactions which would subject 
 the defendant to a criminal prosecution under a statute, the defendant 
 need not plead the statute, but may demur to the bill. Fleming v. Si. 
 John, 2 Sim. 181. 
 
 ■ (1) [In a demurrer on this ground, it is necessary to state in it the 
 why and wherefore a forfeiture would be the consequence of the dis- 
 covery. Sharp V. Sharp, 3 J. C. R. 407 ; and see Le Roy v. Vedder, 
 on appeal, 1 J. R. 417 ; Le Roy v. Servis, 1 C- C. E. 1 ; S. C. 2 lb. 
 175 ; Wolf V. Wolfs executor, 2 Harris &, Gill, 382. In TaJbnt v. 
 Smith, Ridg. Lap. 2 Scho. (Irish) R. 306, a defendant demurred to a 
 bill seeking discovery which would have made him liable to a penalty 
 under the statute of usury. But it appearing that the statute of limi- 
 tations had barred the penal action, it was held that there was no 
 ground for a demurrer. The contrary appears to have been held ia 
 Connecticut. See the case of Northrop v. Hitch, 6 Day's R. 361 ; 
 also Lambert v. The People, 9 Cowen's R. 678. See as to officers of 
 a corporation objecting to answer on the ground that it may subject 
 the company to a forfeiture of its charter. Robinson v. Sjnith, 3 
 Paige's C. R. 222.]
 
 S. II. p. I.] DEMURRERS. 231 
 
 ant shall be compelled to make the discovery ; for 
 it can no longer subject him to a penalty (e). As 
 if a rector, or impropriator or vicar files a bill for 
 tithes, he may w^aive the penalty of the treble 
 value (/) to which he is entitled by the statute of 
 2 & 3 Edward VI., and thus become entitled to a 
 discovery of the tithes subtracted. And though a 
 discovery may subject a defendant to penalties to 
 which the plaintiff is not entitled, and which he con- 
 sequently cannot waive, yet if the defendant has ex- 
 pressly covenanted not to plead or demur to the. 
 discovery sought, which is the common case with 
 respect to servants of the East India company, he 
 shall be compelled to answer (g) (1). Where, 232 
 
 too, a person by his own agreement subjects him- 
 self to a payment in the nature of a penalty if he 
 does a particular act, a demurrer to discovery of 
 that act will not hold (A). Thus where a lessee 
 
 (c) Lord Uxbridgev. Staveland, 1 Atkins, 2 Vee. 108 ; and see Paxton 
 
 Ves. 56 ; and see 1 Vern. 129 ; Bui- v. Douglas, 16 Vea. 239. 
 
 lock V. Richardson, II Vea. 313. {h) See Morse v. BucJctoorth, 2 
 
 (/) Anon. 1 Vera. 60. Vern. 443 ; E. I. Comp. v. Neave, 5 
 
 (g) South Sea Comp. v. Bumsted, Ves. 173. 
 1 Eq. Ca. Ab. 77 ; JB. I. Comp. v. 
 
 (1) A person who has been duly admitted a broker or agent by the 
 mayor and aldermen of the city of London, must answer a bill of discovery 
 in aid of an action for misconduct, drought aL;ainst him by his em- 
 ployer, althougli the discovery will subject him to penalties and to an 
 indictment for perjury : for otherwise the bond given, and the oath 
 taken by such persons on their admission, instead of securing their 
 honesty, wouM only serve as a screen to them in the comnission of 
 the grossest fraud.-;. 
 
 And a person who has not been admitted a broker or agent, but 
 acts as one, must answer, although he may thereby eulject himself to 
 a penalty for acting wiliioul having been admitted. Green v. Weaver, • 
 
 1 Sim. 404.
 
 232 DEMURRERS. [ChAP. II. 
 
 covenanted not to dig loam, clay, sand or gravel, 
 except for the purpose of building on the land de- 
 mised, with a proviso that if he should dig any of 
 [196] those articles for any other purpose, he should pay 
 to the lessor twenty shillings a cart-load, and he 
 afterwards dug great quantities of each article ; 
 upon a bill for discovery of the quantities, waiving 
 any advantage of possible forfeiture of the term; a 
 demurrer of the lessee, because the discovery might 
 subject him to a payment by way of penalty, was 
 overruled (g). 
 
 And a party shall not protect himself against re- 
 lief in a court of equity, by alleging that if he an- 
 swers the bill filed against him, he must subject 
 himself to the consequences of a supposed crime, 
 though the court will not force him by his own oath 
 to subject himself to punishment ; and therefore, in 
 the case of a bill to inquire into the validity of deeds 
 upon a suggestion of forgery, the court has enter- 
 
 233 tained jurisdiction of the cause ; and though it has 
 not obliged the party to a discovery of any fact 
 which might tend to show him guilty of the crime, 
 has directed an issue to try whether the deeds 
 where forged (/j). 
 
 It should seem that a demurrer will also hold to 
 any discovery which may tend to show the defend- 
 ant guilty of any moral turpitude, as the birth of a 
 child out of wedlock (i). But a mother has been 
 compelled to discover where her child was born, 
 though it might tend to show the child to be an 
 
 ig) Richards v. Cole, or Brod- Ab. 131, p. 11 ; Att. Gen.v. Sudell, 
 repp V. Cole, in Chan. Hil. Vaca- Prec. in Chan. 214. 
 tion, 1779. (t) Parker, 163 ;2Ves.451 ; Franco 
 
 (A) 2 Ves. 246. See also 1 Eq. Ca. v. Bolton, 3 Ves. 368 ; King v. Burr, 
 
 3 Meriv. 698.
 
 S. II. p. I.] DEMURRERS. 233 
 
 alien (k) ; for that was not a discovery of any ille- 
 gal act, or of any act which could affect the charac- [197] 
 ter of the defendant (/). 
 
 A demurrer will likewise hold to a bill requiring 
 any a discovery which may subject the defendant to 
 forfeiture (m) (1) of interest: as if a bill is brought 
 to discover whether a lease has been assigned 
 without license (n) ; or whether a defendant, enti- 
 tled during widowhood (o), or liable to forfeiture of 
 a^legacy in case of marriage without consent (p)^ 
 is married ; or to discover any matter which may 
 subject a defendant entitled to any office or fran- 
 chise to a quo warranto (</). But if the plaintiff 
 is alone entitled to the benefit of the forfeiture, and 
 expressly waives (r) it by the bill, as in the case of 
 a bill for discovery of waste (s), a demurrer will 234 
 
 not hold ; for the waiver gives the court a ground 
 of equity to award an injunction, if the plaintiff 
 sues for the forfeiture {{). If the discovery sought 
 is of a matter which would show the defendant in- 
 capable of having any interest or title ; as whether 
 a person claiming a real estate under a devise was 
 an alien, and consequently incapable of taking by 
 
 {k) An. Gen. v. Duplessis, 2 Ves. Atk. 392 ; Chancey v. Fenhoulet, 2 , 
 
 287, ib. 494. Ves. 265. 
 
 (Z) 1 Meriv. 400. (q) 1 Eq. Ca. Ab. 131, q. 10. 
 
 (m> Tothill, 69. (r) 1 Ves, 56 ; see above, p. 231, 
 
 (n) Lord Uxhridge v. Siaveland, note (e). 
 
 I Ves. 56. (s) 2 Atk. 393 ; Att. Gen. v. Vin- 
 
 (0) Monnins v. Monnins, 2 Chan, cent, 2 Eq. Ca. Ab. 378 ; -S. C. cited 
 Rep. 68. Com. R. 664, (2). 
 
 (/j) Chauncey v. Tahourden, 2 (t) 1 Ves. 56. 
 
 (1) A defendant can never be compelled to criminate himself, or to 
 make disclosures which will subject him to forfeiture. Salmon v. 
 ClageU.3 Bland's Ch. R. 125. 
 
 (2) [See the form of a demurrer in a case where such forfeiture is, 
 not waived. Equity Draft. 82.]
 
 ^^^ DEMURRERS. [ChAP. II, 
 
 purchase (u) ; a demurrer will not hold. And 
 where a devise over of an estate in case of marriage 
 [198] was considered as a conditional limitation, and not 
 as a forfeiture, a demurrer to a bill for a discovery 
 of marriage was overruled (x). 
 
 A defendant may in the same manner demur to 
 a discovery which may subject him to any thing in 
 the nature of a forfeiture (y) ; as where a discovery 
 was sought, whether the defendant was educated 
 in the popish religion, by which he might have in- 
 curred the incapacities in the statute 11 «fe 12 
 Will. III. (z) ; or whether a clergyman was present- 
 ed to a second living, which avoided the first (a). 
 
 But where a person against whom a commission, 
 of bankrupt had issued, had brought actions against 
 235 ^^^ assignees under the commission, disputing its 
 
 validity, and particularly insisting that he had not 
 been a trader within the meaning of the bankrupt 
 laws, and in those actions the validity of the com- 
 mission had been established ; and the assignees 
 filed a bill against him, stating these facts, and that 
 being harassed by these actions, and threatened 
 with other actions, they were not able to distribute 
 the eflfects under the commission, and therefore 
 praying a perpetual injunction to restrain further 
 
 (u) Att. Gen. v. Duplessis, Parker, The 18 Geo. III. c. 60, the 31 Geo, 
 
 144. III. c. 32, and the 43 Geo. III. c. 39. 
 
 {x) 2 Aik. 393 ', Lucas y. Evans, 3 do not entirely remove these incapa- 
 
 Atk. 260 ; 2 Ves. 265. cities. Rut they are removed by the 
 
 (y) 3 Atk. 457. (1). 10 Geo. IV. c. 7, s. 23. 
 
 (z) Jones V. Meredith, Com. 661 ; (a) Boieler v. Allington, 3 Atk. 
 
 and see ib. 664 ; Smith v. Read, 3 453. 
 Bac. Ab. 800 ; 1 Atk. 527 ; 2 Ves. 394. 
 
 (1) [Lambert v. The People,9 Cowen's R. 678; and see pages 194, 
 196, ante.]
 
 S. II. p. I.] DEMURRERS. 235 
 
 actions, and requiring a discovery, amongst other 
 things, of acts of trading, a demurrer to that dis- 
 covery was overruled (h). 
 
 If a defendant has in conscience a right equal to [199] 
 that claimed by a person filing a bill against him, 
 though not clothed with a perfect legal title, this 
 circumstance in the situation of the defendant ren- 
 ders it improper for a court of equity to compel him 
 to make any discovery which may hazard his title ; 
 and if the matter appears clearly on the face of the 
 bill, a demurrer will hold (c). The most obvious 
 case is that of a purchaser for a valuable consider- 
 ation without notice of the plaintiff's claim (d). 
 Upon the same principle a jointress may in many 
 cases demur to a bill filed ajjainst her for a disco- 
 very of her jointure deed, if the plaintiff is not ca- 
 pable of confirming, or the bill does not offer to 
 confirm, the jointure, and the facts appear suffi- 
 ciently on the face of the bill ; though ordinarily 236 
 advantage is taken of this defence by way of 
 plea (c). 
 
 This arises from that singularity in the jurispru- 
 dence of this country, produced by the establish- 
 ment of the extraordinary jurisdiction of courts of 
 equity distinct from the ordinary jurisdictions no- 
 ticed in a former page, and necessarily creating a 
 
 {h) Chambers v. Thomson, 1 Nov. (c) See Glegg v. Legh, 4 Madd. 
 
 1793, rep. 4 Bio. C. C. 434, affir.Ded, 193(1). 
 
 on rehearing, March, 1 794. See Pro- (d) 2 Ves. Jr. 458 ; Steeet v. South- 
 
 lector and Lord Lumley, Mardres, cole, 2 Bro. C. C. 66. 
 
 22. See also Selby v. Crew, I Anst. (c) Chamherliiin v. Kuapp, I Alk. 
 
 •504. 52 ; 2 Ves. 450 ; 2 Ves. 662. 
 
 (1) [Hartley v. O'Flaherly, 1 Beatty'a R. 77. And see the form of 
 such a demurrer, Willie, 479.]
 
 236 DEMURRERS. [ChAP. II. 
 
 distinction between legal and equitable rights (/). 
 Where the courts of equity are called upon to ad- 
 minister justice upon grounds of equity against a 
 legal title, they allow a superior strength to the legal 
 title when the rights of the parties are in conscience 
 equal ; and where a legal title may be enforced in 
 [200] a court of ordinary jurisdiction to the prejudice of 
 an equitable title, the courts of equity will refuse 
 assistance to the legal against the equitable title 
 where the rights in conscience are equal. 
 of^^nordemuT If the grouuds on which a defendant might de- 
 '"^" mur to a particular discovery appear clearly on the 
 
 face of the bill, and the defendant does not demur 
 to the discovery, but, answering the rest of the bill, 
 declines answering to so much, the court will not 
 compel him to make the discovery (g). But in 
 general, unless it appears clearly by the bill that 
 the plaintiff is not entitled to the discovery he re- 
 quires, or that the defendant ought not to be com- 
 pelled to make it, a demuiTer to the discovery will 
 237 not hold ; and the defendant, unless he can protect 
 
 himself by plea, must answer. 
 Demurrer to a Where thc solc objcct of a bill is to obtain a dis- 
 
 bill of discovery 
 
 for want of par- covcry, some grounds of demurrer, which if the bill 
 
 ties, or for want J ' o ' 
 
 cLTt*h4 bans prayed relief would extend to discovery as well as 
 ofpartofTmlt^ to the relief, will not hold. Thus a demurrer to 
 
 ter, or for mul- i • 1 1 r> i • 
 
 tifariousness. Q, bill for a discovcry merely will not hold for want 
 of parties, for the plaintiff seeks no decree ; nor, in 
 general, for want of equity in the plaintiff's case for 
 the same reason ; nor because the bill is brought 
 for the discovery of part of a matter, for that is 
 
 (/) 2 Vee. 573, 574. P. Wms. 235 ; 1 Meriv. 401. See be- 
 
 (g) See Wroitesley v. Bendish, 3 low, Chap. II. sect. 2, Fart 3.
 
 S. II. p. I.] DEMURRERS. 237 
 
 merely a demurrer because the discovery would be 
 insufficient. But it should seem a demurrer would 
 hold to abill for discovery of several distinct matters 
 against several distinct defendants(l). For though of ducoTry.^'" 
 a defendant is always eventually paid his costs up- 
 on a bill of discovery (2) if both parties live, and [201] 
 theplaintiffbyamendment of hisbill doesnotextend 
 it to pray relief, yet the court ought not to permit 
 the defendant to be put to any unnecessary ex- 
 pense, as either the plaintiff or defendant may die 
 pending the suit (^). 
 
 After an answer to a bill of 'discovery, when time 
 for excepting to it as insufficient is expired, the de- 
 fendant may apply for costs as a matter of course 
 (A), imless the plaintiff shall in the mean time have 
 obtained an order to amend his bill ; which maybe 238 
 
 done either to obtain a fuller discovery, or, if the 
 case appearing on the answer will warrant the pro- 
 ceeding, by adding to the bill a prayer for relief (i). 
 
 Demurrers to 
 ,,r, , ,x,... 1 ,, bills not original 
 
 (§•) See next page and notes (p) and cial circumstances, been extended, or bills in the 
 
 (q) page 239. See Baring v. Prinsep, 1 Madd. R. ^^'"1,^8°^ °^^' 
 
 (A) See 4 Ves. 746 ; Hewart v. 526 (3). 
 
 Semple, 5 Ves. 86 ; Nohle v. Garland, (i) On this subject see Butterworth 
 
 1 Madd. 344. But, it seems that the v. Bailey, 15 Ves. 358. [AlsoMDou- 
 
 time witliin which the exceptions g'a// v. Mi/n, 2 Paige's C. R. 201.J 
 
 must be filed has latterly, under spe- 
 
 (1) A bill may be filed against several persons relative to matters 
 of the same nature, formii g a connected .-^eries of acts, nil intended to 
 defraud and injure the p'ainiifrs, and in which all the defendants were, 
 more or lei=s, concerned, though not jointly in each act. Brinkerhoff v. 
 Brown, 6 Johns. Ch. R. 139. 
 
 (2) By the 41st order of Aug. 1841, "Where a defendant in equity 
 fileis a cross-bill against the plaintiff in equity for discovery only, the 
 costs of such bill, and of the answer thereto, shall be in the discretion 
 of the court at the hearing of the original cause. 
 
 (3) Only six weeks are allowed by the ISthorderof May,1846,art. 22.
 
 238 DEMURRERS. [ChAP. II. 
 
 Demurrers have hitherto been noticed with refe- 
 
 bnuTf"revivor° Tcnce oiily to Original bills. As every other kind of 
 
 bill is a consequence of an original bill, many of the 
 
 causes of demurrer which will apply to an original 
 
 Demurrer toa bill will also apply to cvcry other kind ; but the pe- 
 
 forwant ofpor- cuHar form and object of each kind afford distinct 
 
 ties. •' 
 
 causes of demurrer to each. Thus if a bill of re- 
 vivor (1) does not show a sufficient ground for re- 
 
 (1) Where a bill is filed by a husband and wife, and the cause is 
 heard on farther directions, after the death of the wife, in the absence 
 of her personal representative, and afterwards her husband dies, and 
 thereupon a bill of revivor is filed against his personal representative, 
 a demurrer Co such a bill on the ground that the personal representa- 
 tive of the wife is not before the court, will be overruled ; for the plain- 
 tiff in the bill of revivor is entitled to have the suit placed in the same 
 plight and condition in which it was at the time of the abatement in 
 respect of which the revivor is sought; and if the proceedings were 
 then imperfect, it is not the office of a demurrer to a bill of revivor to 
 correct the imperfection. Metcalfe v. Metcalfe, 1 Keen, 74. 
 
 When bill was filed against de endant as executrix of her deceased 
 husband, to reach property she had received as executrix, but vviiich in 
 equity was complainant's, and she died after decree in their favor, the 
 surviving executor of the husband who had not been made parly, could 
 be brought in only by an original bill in nature of a bill of revivor and 
 supplement; and the filing of a mere bill of revivor against him was 
 improper. When bill of revivor filed against a defendant shows no 
 title in complainant to revive as against him, he should demur to the 
 bill, and not put in a plea, where no new fact is brought forward which 
 in itself constitutes a bar to the revivor. And in this court a plea 
 cannot be substituted in place of demurrer. Such a plea was over- 
 ruled with liberty to defendant to demur, unless complainants thought 
 proper to amend their bill by making it an original bill in the nature of 
 a bill of revivor and supplement and brin^'ing all proper parties before 
 the court. Evertson v. Ogden, 8 Paige's R. 276-7, 275. 
 
 When, after a bill was filed to set aside a transfer of complainant's 
 real estate, for fraud, complainant died, leaving six children heirs at 
 law, one of which was wife of a defendant in the original suit; and 
 the other five filed a bill of revivor and supplement making their co- 
 heir defendant with iier husband, and the other defendants in the original 
 bill; whereon the latter demurred on ground that she should have been
 
 S. II. p. I.] DEMURRERS. 238 
 
 viving the suit (k), or any part of it (I), either by 
 or against {7n) the person by or against whom it is [202] 
 brought, the defendant may by demurrer show 239 
 
 cause against the revival (n) (1). Indeed though 
 the defendant does not demur, yet if the plaintiff 
 does not show a title to revive, he will take nothing 
 by his suit at the hearing {o) (2). A demurrer will 
 also in many cases hold to a bill of revivor brought 
 singly for costs (p) : the court in general not per- 
 mitting a suit to be revived for that purpose only, 
 except where the costs have been actually taxed 
 before the abatement happened (/j) (3). 
 
 (A) Humphreys v. Incledon,D\ck. (/?) 2 Eq. Ca. Ab. 3 ; 2 Ves. juu. 
 
 38 ; Harris v. Pollard, 3 P. Wms. 315 ; 10 Ves. 572 ; Jwpp v. Geering, 
 
 348. 5 Madd. 375. 
 
 (Z) 1 Eq. Ca. Ab. 3, 4. (?) Hall v. Smith, 1 Bro. C. C. 438 : 
 
 (m) University College v. Foxcroft, Morgan v. Scudamore, 2 Ves. Jun. 
 
 2 Ch. Rep. 244. 313 ; S. C. 3 Ves. 195 ; Lowten v. 
 
 (n) 3 P. Wme. 348. Mayor and Commonalty of Colches- 
 
 (0) 3 P. Wms. 348 ter, 2 Meriv. 113 ; 3 Madd. 377. 
 
 made complainant, and that the supplemental matter in the bill waa 
 improper, held on appeal from Vire-Chancellor, allowing the demurrer, 
 that as wife could not join the suit against her hu.sbarid, except by her 
 next friend, and that even then the suit could not be brought in her 
 name without her consent; and that under the circumstances, it was 
 not necessary to aver that she refused to join the otiier heirs in the bill 
 of revivor ; and that if supplemental matter was improperly added to the 
 i)iil, it furnished no reason to demur to the whole bill, but should have 
 been to the supplemental matter only, tlie decision of the Vice-Chan- 
 celior was reversed and the cause directed to stand revived. Rati' 
 d/)lph V. Dickerson et al., 5 Paiye's R. 517. 
 
 (1) [ Thornton v. Pellatt, 1 1 Price, 733. See the form of a demurrer, 
 Willis, 481.] 
 
 (2) [It is said in Lewis v. Bridgman, 2 Sim. 465, that to prevent a 
 suit from being revived, either a plea or demurrer must be put in to it; 
 and that answer insisting upon tlie plaintiff's having no right is not 
 sufficient.] 
 
 (3) A bill of revivor cannot be filed merely for costs by the personal Bm of reriTor 
 representative of a defendant to a bill which lias been dismissed with forco***- 
 costs. Andrews v. Lockicood, 15 Law J. 285, V. C. E. 
 
 21
 
 239 DEMURRERS. [ChAP. II. 
 
 miSilStar" If a supplemental bill is brought upon matter 
 ^"'*" arising before the filing of the original bill, where 
 
 the suit is in that stage of proceeding that the bill 
 may be amended, the defendant may demur (r). If 
 a bill is brought as a supplemental bill upon mat- 
 ter arising subsequent to the time of filing the 
 original bill against a person who claims no interest 
 arising out of the matters in litigation by the former 
 bill, the defendant to the bill thus brought as a 
 240 supplemental bill may also demur ; especially if 
 
 the bill prays that he may answer the .matters 
 charged in the former bill. These, however, are 
 r2031 grounds of demurrer arising rather from the plain- 
 tiff's having mistaken his remedy, than from his 
 being without remedy. 
 Demurrers to A cross-bill haviuff nothiuff in its nature difl"erent 
 
 cros8-bill«. " "^ 
 
 from an original bill, with respect to which de- 
 murrers in general have been considered, except 
 that it is occasioned by a former bill, there seems 
 no cause of demurrer to such a bill which will not 
 equally hold to an original bill. And a demurrer 
 for want of equity will not hold to a cross- bill filed 
 by a defendant in a suit against the plaintiff" in the 
 same suit touching the same matter. For being 
 drawn into the court by the plaintiff" in the original 
 bill, he may avail himself of the assistance of the 
 court, without being put to show a ground of equity 
 
 (r) Baldwin v. Macknown, 3 Atk. Lord Harewood,\1Vi^s 144 \ Adams 
 
 817 ; 2 Madd. R. 387 (1) ; or, if v. Z)oM!(/i/(o-,2 Madd. R.5:3 ; Ibid. 388. 
 
 the matter should have arisen subse- [Swan v. Swan, 7 Price 518. And see 
 
 quently, but be immaterial, the defeu- Buwi/erv. Bright, 13 Price, 31 G.] 
 dant may also demur. See Milner v. 
 
 (1) [Slafford V. Howlelt, 1 Paige's C. R. 200. See the form of a 
 demurrer, Willi?, 482.]
 
 S. II. p. I.] DEMURRERS. 240 
 
 to support its jarisdiction (s), a cross-bill being 
 generally considered as a defence (t) (1). 
 
 A bill filed by the direction of the court for the bnfsX'dby'th^ 
 
 /,,^...j ^ ,. ^ direction ot the 
 
 purpose ot obtaining its decree touching some mat- coun. 
 ter not in issue by a former bill, or not in issue 
 between the proper parties, does not seem liable 
 to any peculiar cause of demurrer. Indeed, being 
 exhibited by order of the court upon hearing of 241 
 
 another cause, there is little probability that such \ 
 a bill should be liable, in substance, to any de- 
 murrer. 
 
 The constant defence to a bill of review for error i,nh^^''^y"w 
 apparent upon a decree has been said to be by ui'^biHrlfTh* 
 
 , ^ , , II . . same nature. 
 
 plea of the decree, and demurrer against opening 
 the enrolment (u). There seems, however no ne- 
 cessity for pleading the decree, if fairly stated in 
 the bill (3) : the books of practice contain the [204] 
 forms of a demurrer only to such a bill, and there 
 are cases accordingly (x) (4). 
 
 {s)Doblev. Potman, Elardres, 160; O'Brien v. O'Cuunor, 2 Ball. &,- B. 
 
 1 Eden, R. 190. 146. (2) 
 
 (0 3 Atkyiis, 812. (x) Slingsby v. Hale, 1 Ca. in Clia. 
 
 (u) Dancer V. Ecett, 1 Vern. 392 ; 122 ; 1 P. Wms. 139 ; and eee Jones 
 
 Smith V. Turner, 1 Vern. 273 ; 2 Atk; v. Kenrick, 5 Dro. P. C. 244 ; and ib. 
 
 534. See also 3 Alkyns, 627 ; 248 ; iu which case the defendant ap- 
 
 (1) By the 42(1 order of Angust, 1841, "Where a defendant inequity 
 files a cross-bill for discovery only against the plaintiif in equity, the 
 answer to such cross-bill may be rcail and used by the party filing such 
 cross-bill, in the saii.e manner, and undi r the same restrictions, as the 
 answer to a bill praying relief may now be read and used." 
 
 (2) [And see Webb v. Pell, 3 Paige's C. R. 368. For the form of 
 a demurrer to a bill of review, see Willis 483; 2 Equity Draftsman, 
 92, (2d edition.)] 
 
 (3) [Webb V. Pell, 3 Paige's C. R. 368.] 
 
 (4) [L<:)rd Chanc-l'or Liffi)id is reported to have ^id, in Lindsay v. 
 Bell, Finlay's (Irish) Index, thai a case can hardly arise in which a 
 demurrer can be put in to a bill of review.]
 
 241 DEMURRERS. [ChAP. II. 
 
 On argument of a demurrer to a bill of review 
 where several errors in the decree have been as- 
 signed, if the plaintiff should prevail only in one, 
 the demurrer must be overruled, as one error will 
 be sufficient to open the enrolment ; and on argu- 
 ment of a demurrer to a bill of review for error ap- 
 parent in the decree, the court has ordered the 
 defendant to answer, saving the benefit of the de- 
 murrer to the hearing and on the hearing has finally 
 allowed the demurrer (?/). 
 242 Where the decree has been pronounced above 
 
 twenty years, the length of time is good cause of 
 demurrer (z). 
 
 Where any matter beyond the decree is to be of- 
 fered against opening the enrolment, that matter mtfst 
 be pleaded (a) ; and it has been said that length of 
 [205] time must be pleaded to a bill of review, and that 
 otherwise the plaintiff will not have the benefit 
 of exceptions, as infancy, coverture, or the like (b). 
 
 pears to have pleaded the decree en- (b) Gregor v. Molesworth, 2 Ves. 
 rolled in bar of the firBt bill, which did 109. See, however, Sherrington v 
 not state the decree, but to have da- Smith, 2 Bro. P. P. 62, Toml. Ed. : 
 murred alone to the bill of review. Garman v. M'Cullock, 5 Bro. P. C. 
 And in Helbut and Philpot, in the, 597, Toml. Ed. ; see 3 P. Wms. 287, 
 House of Lords, 11 March, 1725, the note B, and post, p. 251, as to a de- 
 defendant demurred alone to a bill of murrer on the ground of length of 
 review,and the demurrer was allowed; time ; and it should seem that if the 
 and the order affirmed by the Lords ; plaintiff can allege any exception to a 
 and see Denny v. Filmore, 1 Vera positive rule, he ought to do so by his 
 135 ; S. C.2 Freeman, 172. bill. Li Lytton v. Lytton, 4 Bro. C. 
 
 (y) Denny v. Filmer, 2 Freeman, C. 441, the exception was stated in 
 
 172. the bill, and admitted by the answer. 
 
 (z) Edwards V. Carroll, 2 Bro. P. If length of time must be pleaded, yet 
 
 C. 88, Tond. Ed.; and see Sinythev. the plaintiff can have no benefit of ex- 
 
 Clay, 4 Bro. C. C. 539, n. ; S. C. 1 ception not stated in the bill, unless it 
 
 Bro. P. C. 453, Toml. Ed.; <S. C. should be required that the plea should 
 
 Ambl. 615. be supported by averments negativing 
 
 (a) See Hartwell v. Townsend, 2 erery possible exception, to which 
 
 Bro. P. C. 107, Toml. Ed. there seem to be great odjectious.
 
 S. II. p. I.] DEMURRERS. 242 
 
 A bill of review upon the discovery of new matter, 
 
 and a supplemental bill of the same nature, being 
 
 exhibited only by leave of the court (1), the ground 
 
 of the bill is generally well considered before it is 
 
 brought ; and therefore in point of substance it 
 
 can rarely be liable to a demurrer. But if brought 
 
 upon new matter, and the defendant should think 
 
 that matter not relevant, probably he might take 
 
 advantage of it by way of demurrer, although the 243 
 
 relevancy ought to be considered at the time leave 
 
 is given to bring the bill (b). Bills in the nature of 
 
 bills of review do not appear subject to any peculiar 
 
 cause of demurrer, unless the decree sought to be 
 
 reversed does not affect the interest of the person 
 
 filing the bill. If upon argument of a demurrer to 
 
 a bill of review the demurrer is allowed, the order 
 
 allowing it, being enrolled, is an effectual bar to [206] 
 
 another bill of review (c). 
 
 If upon the face of a bill to carry a decree into biiu*tTcI^y*d^- 
 execution the plaintiff appears to have no right to cutfon.'"'^ ^"' 
 the benefit of the decree the defendant may demur. 
 
 Bills in the nature of bills of revivor and supple- buu^lS'iht^nv 
 ment are liable to objections of the same sort as revivor and anp 
 
 ** _ plement. 
 
 may be made to the kinds of bills of whose nature 
 they partake. 
 
 In addition to the several particular causes of de- 1^^^^^/**' 
 murrer applicable to particular kinds of bills, it 
 may be observed that any irregularity in the frame 
 
 (6)2Atk. 40. See what is stated (c) See Denny v. Filmer, 2 Ca. in 
 
 in regard to a mere supplemental bill, Cha. 133 ; S. C. I Vern. 135, and ib. 
 
 17 Ves. 148, 149 ; 2 Madd. R. 61 ; 417 ; Pitt\. Earlof Arglass, ib 441 ; 
 
 and see above, 239, note (r). Woota v. Tucker, 2 Vern. 120. 
 
 (1) See note, p. 243.
 
 243 DEMURRERS. [ChAP. II. 
 
 of a bill of any sort may be taken advantage of by 
 demurrer. Thus if a bill is brought contrary to 
 the usual course of the court, a demurrer will 
 
 244 hold (d) (1). As where, after a decree directing 
 incumbrances to be paid according to priority, the 
 plaintiff, a creditor, obtained an assignment of an 
 old mortgage, and filed a bill to have the advan- 
 tage it would give him by way of priority over the 
 demands of some of the defendants (e). This was 
 a bill to vary a decree (2), and yet was neither a 
 
 (d) See Worthy v. Birkhend, 3 3 ; Ogilvie v. Heme, 13 Ves. 563 ; 
 
 Atk.809 ; S. C. 2 Ves. 571 ; Lady Maule v. Duke of Beaufort, 1 Russ. 
 
 Chranmlle v. Ramsden, Bunb. 56 ; R. 349. 
 Earl of Darlington v. Pulteney, 3 (e) 3 Atk. 811. 
 Ves. 386 ; Fletcher v. Tollett, 5 Ves. 
 
 (1) For an instance of a demurrer to a bill on the ground of Us having 
 
 been filed without leave of the court, see Bainbrigge v. Baddeley, 
 
 lOJur. 765. 
 
 Bupplemental (2) Where a bill is filed acfainst executors and the supposed repre- 
 Ml seeking to ^ . , , , ^ . , , . .^ . / , 
 
 7turj a decree, sentative of a deceased executor, praying for an administration of the 
 
 testator's estate, and impeaching an account alleged to have been frau- 
 dulently settled between the surviving executors and the deceased exe- 
 cutor ; but it appears, at the hearing, that the representative of the de- 
 ceased executor is not a party to the suit; and the decree therefore 
 directs that the account settled with the deceased executor shall not be 
 disturbed ; and then a bill, purporting to be a supplement bill, is filed, 
 bringing before the court the personal representative of the deceased 
 executor and the assignees of a bankrupt executor, a demurrer to go 
 much of the bill as seeks for an account of the receipts of the deceased 
 executor, even though put in by the assignees of the bankrupt exe- 
 cutor, will be allowed ; because, to that extent, the bill is not supple- 
 mental, but is an original bill seeking to vary the former decree. 
 Wilson V. Todd, 1 My. & C. 42. 
 
 But where a testator directs his estate to be converted, and invested 
 for certain persons for life, with remainder over, and the executors, in- 
 stead of converting, permit the successive tenants for life to enjoy the 
 leasehold part of his estate until the expiration of the terms ; and the 
 remaindermen file a bill against the representative of the executors 
 after the death of the tenants for life for an account and distribution '■< 
 but in consequence of representations made by the representatives of
 
 S. II. p. I.] DEMURRERS. 245 
 
 bill of review, nor a bill in nature of review, which 
 are the only kinds of bills which can be brought to 
 affect or alter a decree (/), unless the decree has 
 been obtairted by fraud (g). So if a supplemental [207] 
 bill is brought against a person not a party to the 
 original bill, praying that he may answer the origi- 
 nal bill, and no reason is suggested why he could 
 not be made a party to the original bill by amend- 
 ment, he may demur (k). If an irregularity arises 
 in any alteration of a bill by way of amendment, it 
 may also be taken advantage of by demurrer. As 
 if a plaintiff amends his bill, and states a matter 
 arisen subsequent to the filing of the bill (i), which 
 consequently ought to be the subject of a supple- 
 mental bill, or bill of revivor. But if a matter ari- 
 sen subsequent to the filing of the bill, and properly 
 the subject of a supplemental bill, is stated by 
 amendment, and the defendant answers the amend- 
 
 (/) Arg'ioa Atk. 811 ; Read v. v. Moleaworth, 1 Eden. R. 25 ; 13 
 Hambey, 1 Ca. in Cha. 44 ; S. C. 2 Ves, 564. 
 Freein. 179 ; 13 Ves. 564. (A) Baldwin v. Mackown, 3 Atk. 
 
 (g) Argd» 3 Atk. 811 ; Galley v. 817. 
 Baker, Cdi.T. Talb. 199 ; Manaton (t) 1 Atkyns, 291 ; Filhington v. 
 
 Wignall, 2 Madd. 240 (1). 
 
 the executors in ignorance of the circumstances, the remaindernien 
 waive an account, and a decree is made for distributing the residue ; 
 and afterwards the remaindermen discover the breach of trust in re- 
 spect of the leaseholds, and file a supplemental bill for relief, the court» 
 notwithstanding tiie former decree, will order the representatives of 
 the executors to pay what was the value of the lease at the time o^ 
 the testator's death. And this will be tlie case, even though the title 
 to the lease was bad, if no advantage was taken of the badness of the 
 title by the owners of tho property. Mehrlens v. Andrews, 3 Beav. 72. 
 (1) [There is the form of a demurrer in such a case in Equity 
 Draft. 91, (2d edit.) ; and a note added wliereby it appears that the 
 form there given was drawn according to a precedent of a similar de- 
 m urrer made out by Lord Redesdale when at the bar.]
 
 245 DEMURRERS. [ClIAP. IL 
 
 ed bill, it is too late to object to the irregularity at 
 the hearing (^). For as the practice of introduc- 
 ing by supplemental bill matter arisen subsequent 
 
 246 to the institution of a suit has been established 
 merely to preserve order in the pleadings, the rea- 
 son on which it is founded ceases when all the 
 proceedings to obtain the judgment of the court 
 have been had without any inconvenience arismg 
 from the irregularity (k). 
 
 [208] Having thus considered the several grounds of 
 demurrer, it may be proper to observe some par- 
 ticulars with respect to the frame of demurrers, the 
 manner in which they are offered to the court, and 
 the manner in which their validity may be deter- 
 mined, or their consequences avoided. 
 connili'**"'^ °^ ^ demurrer must be signed by counsel (/) ; but 
 Oath. -g p^^^ jj^ without oath, as it asserts no fact, and re- 
 
 lies merely upon matter apparent upon the face of 
 der'for ttoe°to thc bill (m). It is therefore considered, that the de- 
 ovTi^S'g ade° fendant may by advice of counsel, upon the sight 
 ewer or plea, of the bill ouly, bc cuablcd to demur thereto (n) ; 
 and for this reason it is always made the speciaF 
 condition of an order giving the defendant time to 
 demur, plead, or answer to the plaintiff's bill, that 
 he shall not demur alone. Whenever, therefore, 
 the defendant has obtained an order for time, and 
 *is afterwards advised to demur, he must also plead 
 to or answer some part of the bill (p). It has been 
 
 (i) Belchier against Pearson, at for time to answer generally, it would 
 
 the Rolls, 13 July, 1782. be presumed that his case does not 
 
 (k) See above, p. 239. require the usual indulgence to the 
 
 (Z) See Ord. in Cha. 172, Ed. Bea. extent mentioned in the text; and the 
 
 (m) 2 Ves. 247 ; 1 Madd. R. 236. order would be drawn up accordingly, 
 
 (w) Ord in Cha. 172, Ed. Bea. see 10 Ves. 448 : 1 Ves. &. B. 186 ; 
 
 (0) If the defendant should apply and he would be bound to answer, 10
 
 S. II. p. I.] DEMURRERS. 247 
 
 held, that answering to some fact immaterial to [209} 
 the cause, and denying combination (o), do not 
 amount to a compliance with the terms ot* such an 
 order ; and therefore, upon motion, a demurrer ac- 
 companied by such an answer has been discharged 
 {p). This rule has been probably established un- 
 der a notion that time is not necessary to determine 
 whether a defendant may demur to a bill or not, 
 and a supposition that a demurrer may be filed 
 merely for delay. But whether a bill may be de- 
 murred to is sometimes a subject of serious and 
 anxious consideration : and the preparation of a 
 demurrer may require great attention^ as if it ex- 
 tends in any point too far it must be overruled. 
 Great inconvenience therefore may arise from a 
 strict adherence to this rule. For it often happens 
 
 Ves. 44G ; but a plea would be con- Allen, 1 Madd. R. 556 ; Sherwood v. 
 
 sidered within the meaning of this Clark, 9 Pri. Ex. R. 259 (1). 
 
 term. See Roberts v. Hartley, 1 Bro. (o) As to the necessity of denying 
 
 C. C. 56 ; De Minkuitz v. Udney, a general charge of combination, see 
 
 16 Ves. 355 ; Barber v. Crawahaw, supra, p. 44. The charge of combi- 
 
 6 Madd. 284, unless, perhaps, it were nation, in order to be material, with 
 
 of a description not required to be put the view of preventing a demurrer 
 
 in upon oath, see Phillips v. Gibbons, for want of equity by parties not inter- 
 
 2 Ves. &B. 184 ; and see Anon, 2. P. ested, must be specific. Smith v- 
 
 Wms. 464 ; 3 P. Wms. 81 ; but the Snow, 3 Madd. 10. 
 
 defendant would not be allowed to (p) Stephenton v. Gardiner, 2 P. 
 
 demur alone. Kenrick v . Clayton,'^ Wms. 286 ; 4 Viu. Abr. 442 ; Lee v. 
 
 Bro. C. C. 214; «. C. Dick. 685 ; or Pascoe, 1 Bro. C. C. 78 ; and see 
 
 even to answer and demur. Taylor v. Kenrick v. Clayton, 2 Bro. C. C. 214; . 
 
 Milner, 10 Ves. 444 ; Mann v. King, S. C. Dick. 685 ; Lansdown v. Elder- 
 
 18 Ves. 297, except under peculiar ton, 8 Ves. 526; Tompkin v. Letli- 
 
 circumstances, and upon leave grant- bridge, 9 Ves. 178 ; 10 Ves. 446, 447, 
 
 ed by the court, on a special applica- 448 ; 2 Ves. & B. 123. 
 tion for that purpose. See Bruce v. 
 
 (1) [By the New- York practice, after a general order for further 
 time to answer, (under tl)e rJ5tii rule,) the defendant cutinot put in a 
 demurrer, except on special leave of the court. Burrall v. Raineleatix, 
 2 Paige's C. R. 331.]
 
 248 DEMURRERS. [ChAP. 11. 
 
 that a defendant cannot answer any material part 
 of the bill without overruling his demurrer ; it being 
 held that if a defendant answers to any part of a 
 bill to which he has demurred, he waives the benefit 
 of the demurrer {q) (1) ; or if he pleads to any part 
 [210] of a bill before demurred to, the plea will overrule 
 the demurrer (r). For the plaintiff may reply to a 
 plea or answer, and thereupon examine witnesses, 
 and hear the cause ; but the proper conclusion of a 
 demurrer is to demand the judgment of the court 
 whether the defendant ought to answer to so much 
 of the bill as the demurrer extends to, or not (s). 
 The condition, that the defendant shall not demur 
 alone, ought therefore, perhaps, to be considered 
 hberally; and it has been formerly said, that the 
 court will not incline to discharge a demurrer if the 
 defendant denies combination only where he can- 
 not answer further without overruling his demur- 
 
 (g) See Hester v. Weston, 1 Ves. (r) Dormer v. Fortescue, 2 Atk. 
 
 463 ; Jones v. Earl of Strafford, 3 282. 
 P. Wms. 79 ; Abraham v. Dodgson, {») 3 P. Wms. 80. 
 2 Atk. 157. 
 
 (1) Where answer covers part of the discovery to which demurrer 
 is interposed, it overrules the demurrer. As where the answer set up 
 a defence as purchai^er without notice, and which; if true, would be a 
 defence to the equitable right claimed, under a will ; and its concluding 
 allegation denied all knowledge as to any of the matters of the bill 
 other than those which defendant had answered : and closed with the 
 general traverse of the answer ; and thereby put in issue and answered 
 all the matters attempted to be covered by the demurrer ; held, that 
 the demurrer which was to all the discovery and relief sought in rela- 
 tion to the will, was overruled by such pan of the answer. Spofford 
 et al V. Manning, 6 Paige's R. 387, 388. 383. By the 37th order of 
 August, 1841, "no demurrer or plea shall be held bad and overruled 
 upon argument because the answer of the defendant may extend to 
 some part of the same matter as may be covered by sucli demurrer or 
 plea."
 
 S. II. p. I.] DEMURRERS. 
 
 248 
 
 rer (s). Indeed any material answer must in many 
 cases overrule the demurrer ; so that giving a de- 
 fendant time to demur, plead, or answer, not demur- 
 ring alone, is oftenin effect giving leave todoathing, 
 but clogging the permission with a condition which 
 makes it nugatory : and though the rule was first 
 adopted upon a reasonable ground to prevent un- 249 
 
 necessary delay, it may, if strictly observed, con- 
 tradict the maxim, that a court of equity ought not, 
 for form sake, to do a great injustice (t). However 
 the modern practice is according to the original 
 strictness of the rule (u) ; and it may be better, 
 where the case requires it, to relax the rule upon 
 special application to the court (x) than to permit [211] 
 it to be evaded (i/). Indeed in some cases an an- 
 swer to any part of the bill may overrule the de- 
 murrer ; for if the ground of demurrer applies to the 
 whole bill, the answering to any part is inconsis- 
 tent (z) ; and therefore, when the ground of demur- 
 rer was the general impropriety of the bill, and that 
 the defendant ought not therefore to be compelled 
 to answer it, his answer to an immaterial part, in 
 compliance with the order for time which he had 
 obtained, overruled his demurrer (a). 
 
 (»"» See Done v. Peacock, 3 Atk. the court will do. See above, p. 246, 
 
 726 ; see above, p. 209, note (6). note (o). 
 
 (0 1 Ves. 247. (y) It eeeme that very httle by 
 
 (u) Attorney Gen. v. Jenner, in way of answer will satisfy the terms 
 Ch. 9 Nov. 1738; Sir John Dyne- of the order; but that the court con- 
 fey Goodere v. Dean and Chap- eiders the |>ractice in this respect to be 
 ter of Worcester, in Exchequer, 1777. guarded by the honor of the counsel. 
 Lee V. Pascoe, in Chan. East. See Tompkin v. Lethbridge, 9 Ves. 
 1780 ; 1 Bro. C. C 77 ; 8 Ves 527; 178 ; 11 Ves. 73. 
 10 Voa. 447. See above, pp. 246, 247, (z) Tidd v. Clare, Dick. 712. 
 and notes (o), {p), and (9). (a) Ruspini v. Vickery, iu Chan. 
 
 (z) And this upon a special ground, 16 Jan. 1793.
 
 249 DEMURRERS. [ChAP. II. 
 
 dem^^rcrofthe ^^ a deiTiurrer relies merely upon matter appa- 
 
 statemenu of Teiit oo the face of the bill, so much of the bill as 
 
 the demurrer extends to is taken for true (b) (1) ; 
 
 250 thus if a demurrer is to the whole bill, the whole 
 (c) is taken for true ; if it is to any particular dis- 
 
 (6) 2 Ves. & Bea. 95 ; 1 Madd. that is, facte which are well and ma- 
 
 R. 565. [Pryor v. Adams, Call's R. terially alleged. Lord Hardwicke in 
 
 39].] Butler v. Royal Exchange Ass^ur- 
 
 (c) That is, every thing necessary ance, in Chan. 22 Nov. 1749 ; 1 Vea. 
 
 to support the plaintiff's case which Jun. 78, 289 ; 3 Meriv. 503 ; 1 Madd. 
 
 .is well charged in the bill. 1 Ves. 565. [Braband v. HoskinSy3 Price, 
 
 426,427; 1 Ves. Jun. 289. Facts 31.] 
 on a demurrer are taken to be true ; 
 
 Asagainetwhom (1) A party demurrinff admits the truth of the allesratioiis in the 
 
 allegationa are ,.,, "^ ... ,., , . , 
 
 admitted by a Dill not only as against hims^elf but alfo as against another person, 
 emurrer. • g^ ^^j^^^^ jj- ^ |^jjj alleges that a person has ceased to have interest, a 
 party demurring admits that fact, and cannot object to the suit on ac- 
 count of such person not having been made a party to the record. 
 Earle v. Halt, 9 Jur. 773, V. C. W. But see Penfold v. Nunn. 6 Sim. 
 405. ^ 
 
 Demurrer as- Where a bill states the purport of a deed in the possession of the 
 
 eumes correct- r r r 
 
 ness of a state- defendant, the court, upon deinurrer, must assume such statement to be 
 port of a deed. Correct ; so that the demurring party is not at liberty to read the deed 
 itself, for the purpose of disproving such statement, even though the 
 bill, for greater certainty, refers to the deed. For, to ho'd otherwise, 
 would be to give the defendant an advantage depending upon the acci- 
 dent of his having the custody of the deed, and might in effect be to 
 decide the question raised by the demurrer upon matter dehors the 
 record. Camphell v. Mackay, 1 My. & C. 613. 
 
 Demurrer only Where a defendant demurs to a bill for want of equity, he is not to 
 admits for the 
 
 purpose of the be taken to have confessed the truth of the statements and charges. 
 
 argument jj^ ^^^j^ admits them for the purpose of showing the want of equity 
 
 even upon the assumption that the statements and charges in the bill 
 are true. All that he says by a demurrer is this : "even admitting 
 (just for the sake of arguing upon your own (^rounds, as to the exist- 
 ence of the equity which you assert) that all you say is true, still you 
 have no equity. Without putting myself to the trouble, expense, and 
 delay of disproving your allegations, but taking you on your own 
 grounds, I can show that you have no equity against me." See the 
 Lord Chancellor's remarks in Thompson v. Barclay, 9 Law J. (Q. S.) 
 216,217.
 
 made by demur- 
 rer. 
 
 S. II. p. I.] DEMURRERS. 250 
 
 covery, the matter sought to be discovered, and to 
 
 which the demurrer extends, is taken to be as 251 
 
 stated in the bill ; and if the defendant demurs to 
 
 relief only, the whole case made by the bill to 
 
 ground the relief prayed is considered as true. A 
 
 demurrer is therefore always preceded by a pro- [212] 
 
 testation against the truth of the matters contained 
 
 in the bill ; a practice borrowed from the common 
 
 law, and probably intended to avoid conclusion in 
 
 another suit. 
 
 The admission by a demurrer of the truth of the ^vhetherade- 
 
 •' fence founded 
 
 facts stated in the bill has been considered as one timi^wn^f 
 reason why a defence founded on length of time, 
 though apparent on the face of the bill, without any 
 circumstance stated to avoid its effect, cannot gene- 
 rally be made by demurrer (r) (1). Upon a de- 
 murrer to a bill brought to impeach transactions 
 which had passed twenty-eight years before the 
 bill was filed, on the ground of fraud, without any 
 sufficient cause shown for not instituting the suit 
 sooner, it was said by the court that the party who 
 
 (c) But, if the plaintiff's case be by the mortgagee of more than 
 
 80 stated iu the bill as to show that twenty years, (see Aggas v. Picker- 
 
 his claim is barred by lapse of time, ell, 3 Atk. 225 ; and see 2 Ves. Jun. 
 
 and no ground of exception, as infan- 84,) the defendant may demur. Beck- 
 
 cy, or the like, be alleged therein, it ford v. Close, cited 3 Bro. C. C. 644 ; 
 
 seems that, contrary to the opinion of 4 Ves. 476, ib. 479 ; Foster v. Hodg- 
 
 Lord Hardwicke, expressed in a case son, 19 Ves. 180. [See 2 Revised 
 
 in which the suit was for redemption Statutes N. Y. 301.] 
 of a mortgage, after quiet possession 
 
 (1) A defendant may avail himself of the statute of limitations by 
 demurrer, when the application of the statute to the suit appears on 
 the face of the bill. Hoire v. Peck, 6 Sim. 51. 3 Bro. C. C. Iv. Per- 
 kins Ed. ,6:53. 6-16, notes; Fre.ike v. Cran/dd/,Z My. &. Cr. 499; 
 Tyson V. Pole,3 Vounge & Col. 266 ; McDnwl v. Charles, Gi. C. 
 R. 132 ; Coslar v. Murray, 5 J. C. R. 52 1 ; Ilianb rl v. Rector, tj-c. 
 Trinity Church,! Paige C. R. 196; Van Hook v. \Vhitl(:ck,1 I'aige 
 C. R. 373 ; S. C. 24 Wend. R. 687 ; Waller v. Deminl, 1 Dana, 92.
 
 251 DEMURRERS. [ChAP. II. 
 
 demurs admits every thing well pleaded, in manner 
 and form as pleaded ; and a demurrer ought there- 
 fore in a court of law to bring before the court a ques- 
 
 252 tion of law merely; and in a court of equity, a question 
 of law or equity merely. The demurrer therefore 
 mustbe taken to admit the whole caseof fraud made 
 by the bill; and the argument to support it mustbe, 
 not that a positive limitation of time has barred the 
 suit, for that would be a pure question of law,butthat 
 
 [213] from long acquiescence it should be presumed that 
 , the fraud charged did not exist, or that it should 
 
 be intended that the plaintiff had confirmed the 
 transaction, or had released or submitted upon 
 such consideration as to bar himself from the 
 general equity stated in the bill. This mustbe an 
 inference of fact, and not an inference of law ; and 
 the demurrer must be overruled, because the de- 
 fendant has no right to avail himself by demurrer 
 of an inference of fact upon matter on which a jury 
 in a court of law would collect matter of fact to de- 
 cide their verdict, if submitted to them, or a court 
 would proceed in the same manner in equity. What 
 limitation of time will bar a suit where there is no 
 positive limitation, or under what circumstances the 
 lapse of time ought to have that effect, must depend 
 on the fficts of the particular case, and the conclu- 
 sion must be an inference of fact and not an infer- 
 ence of law(c?), and therefore cannot be made on a 
 demurrrer (e). 
 
 (</) See Cuthbert v. Creasy, 6 v. Beckford, on appeal from Jamaica 
 
 Madd. 189. 26 July, 1784, a demurrer to a bill to 
 
 (e) Ld. Deloraine v. Browne, in redeem on account of length of time 
 
 Chan. 13 &. 14 June, 1792 ; 3 Bro. was allowed by the council — present 
 
 C. C. 633. But see p. 241, as to de- Kenyan, M. R. — after consideration, 
 murrers to bills of review. In Tobin
 
 S. II. p. I.] DEMURRERS. 253 
 
 A demurrer must express the several causes (/) thecE'ofd^ 
 
 /»! / \ /■-! \ 3 • ill murrer, and the 
 
 of demurrer (£') (1); and m case the demurrer pans to wwch 
 
 ^oy \ ^ ^ ij applies. 
 
 doe snot go to the whole bill, it must clearly express [214] 
 the particular parts of the bill demurred to (h). If J.f^lf ^^H" 
 a demurrer is general to the whole bill, and there °"'"'®'' 
 is any part, either as to the relief or the discovery, 
 to which the defendant ought to put in an answer, 
 it was generally considered that the demurrer 
 being entire must be overruled (i) (2). But there 
 
 (/) See 3 Madd. 8 ; 1 Jac. R. the bill, but by positivo definition of 
 
 467; and see Harrison v. Hogg, 2 the parts to which he thereby seeks 
 
 Ves. Jun. 323. to avoid answering. See Robinson 
 
 (g) Peachie v. Twycrosse, Cary v. Thowpson, 2 Ves. &- Bea. 118; 
 
 Rep. 113; Ord. in Ciian. Ed. Be.a. 77, Wcalherhead v. Blackburn, 2 Ves. 
 
 173. & Bea. 121; sed vide Hicks v. Rain- 
 
 (A) Cketwynd v. Lindon, 2 Ves. cock, 1 Cox R. 40. 
 
 451; Devonsherv. Newenham, 2 Sch. (i) 1 Ves. 248 ; Earl of Suffolk v. 
 
 & Lefr. 199. And this must be done, Green, 1 Atk. 450 ; Todd v. Gee, 17 
 
 not by way of exception, as by de- Ves. 273; 1 Swanst. 304; 1 Jac. R* 
 
 murring to all. except certain parts of - _ 
 
 (1) [Nash V. Smith,6 Day's R 421 ; 6th Rule of South Carolina 
 Prac. 1 Desseau, 57. It must not be a speaking demurrer. A speak- 
 ing demurrer is, wii^re a fact is iiitri)duced which is necessary to sup- 
 port the demurrer. Davis v. Williams, 1 Sim. 7. It is a general rule, 
 that a speaking demurrer is bad ; i. e. when it contains argument in 
 the body of it; if, for instance, the demurrer says, "in or about the 
 year 1110, which is upwirds of twenty years before the bill filed.''' (2 
 Ves. Jr. 83.) A demurrer, aK-so, to any thing but what appears on the 
 face of the bill, is considered as a speaking demurrer. (2 Ves. 245.) 
 Lube, 340. And as to other cases upon speaking demurrers, see Caw- 
 thorn V. Charlie, 2 Sim. & Stu 129 ; Duiis v. Williams, 1 Sim. 8.] 
 
 A speaking demurrer is one which introduces some new fact or 
 averment, which is necessary to support the demurrer, and which does 
 not appear distim ily upon the face of the bill. Where defendant put in 
 a general demurrer to the bill, and st^ited as grounds of demurrer, 
 several matters appearing on the fac," of the bill, an objection that it 
 was a speaking demurrer, was held in)t well taken. Brooks v. Gib- 
 bons el al., 4 Paige R. 375, 374. See also Kui/pers v. Reformed Dutch 
 
 Church, 6 Paige 670 ; Pendi bury v. Walker, 4 Younge &- Coll. 434 ; 
 
 McComh V. Arinslrang, 2 .Mulloy's Ch. R. ^ Irish,) 295. 
 
 (2) Demurrer bad in part is bad in Into. 5 Johns. C. R. 186 ; 1 Id. 51. 
 Contra, 2 Bibb, 48-1.) Where liie bill is charged a " fraudulent conceal-
 
 25S DEMURRERS. [ChAP. II. 
 
 are instances {K) of allowing a demurrer in part (/) ; 
 
 and a defendant may put in separate demurrers 
 
 254 to separate and distinct parts of a bill for separate 
 
 467 (1). But though a demurrer can- 2 Bro. P. C. 5l4, Toml. Ed. 
 not be good in part and bad in part (/) Although this is not now the 
 
 (8 Ves. 403; 11 Ves. 70; 17 Ves. practice, tlie court will in some in- 
 
 280), (2) it appears that where such stances, on the argument of ademur- 
 
 a mode of defence has been resorted rer, grant leave, upon overruling it, 
 
 to by Several defendants jointly, it to the defendant to put in another less 
 
 it may be good as to some of them, extended. {Thorpe v. Miicauley , 5 
 
 and bad as to the others ; see 8 Ves. Madd. 218)> and will, even after it 
 
 403, 404. has been overruled, sometimes be in- 
 
 (Je) Rolt V. Lord Soinenrille, 2 "Eq. duced to grant a similar indulgence. 
 
 Ca. Ab. 759 ; RadcUffe v. Fursman, Baker v. Mellish, 1 1 Ves. 68. (3) 
 
 ment of title, while complainant Was making improvements," a general 
 demurrer to the whole bill to such a charge of fraud is bad. The 
 charge of fraud direst and positive, must be met otherwise than by a 
 demurrer. Carter v. Longworth, el al., 4 Ohio R. 836, condensed from 
 4 Hammond, 384; see also Higgins v. Burnet, 5 Johns. C. R. 184. 
 
 Held, on a joint demurrer of husband and wife, that it may be sus- 
 tained in her favor and overruled as against her husband. As on bill 
 for specific performance of contract for sale of her realty, demurred to 
 by them on the ground that her acknowledgment on private examina- 
 tion was not taken. Demurrer was held well taken by her but as 
 there was an equitable claim against husband for the fulfilment of the 
 contract and therefore he should answer, the demurrer was oven uled 
 as to him. Wooden et al., v. Morris <^ Wife, 2 Green, C. R. (N. J.) 
 67. 66. 
 
 (1) {And see Verplanck v. Caines,! J. C. R. 67; Le Roy v. Vee- 
 der, on appeal, 1 J. C. 417 ; Laight v. Morgan, on appeal, 1 J. C. 429 ; 
 S. C. 2 C. C. E. 344 ; Kimberly v. Sells, 3 J. C. R. 497 ; Livingston 
 V. Livingston, 4 lb. 294; Le Roy v. Seriis, 1 C. C. E. 1 ; Higginbo- 
 tham V. Barnel, 6 lb. 184 ; Briam v. Briam, Vernon & JScriven's 
 (Irish) R. 84 ; Graves v. Downey, 3 MoniH)e's R. 125 : Caslleman v. 
 Veitch, 3 Randolph's R. 598 ; Cheetham v. Crook, 1 M'Cleland & Y. 
 307.] 
 
 (2) [But see Verplanck v. Caines, supra. It has been said, in Ken- 
 tucky, that a demurrer to a bill may be overruled in part and sustained 
 in part. Pope v. Stanslmry, 2 Bibb, 484.] 
 
 (6) [This is not allowed in the New-York chancery. 49th Rule. 
 See Rawley v. Eccles, 1 Sim. & Stu. 611.]
 
 S. II. p. I.] DEMURRERS. 254 
 
 and distinct causes (?ti). For the same ground of 
 demurrer frequently will not apply to different parts 
 of a bill, though the whole may be liable to de- 
 murrer ; and in this case one demurrer may be over- [215] 
 ruled upon argument, and another allowed (w) (1). 
 
 If the plaintiff conceives that there is not suffi- ll^Hf^^^^^F' 
 cient cause apparent on the bill to support a demur- Ser!°' ^^^' 
 rer put in to it, or that the demurrer is too exten- 
 sive, or othenvise improper, he may take the judg- 
 ment of the court upon it (2) ; and if he conceives that 
 by amending his bill he can remove the ground of 
 demurrer, he may do so before the demurrer is 
 argued, on payment of costs, which vary according 
 to the state of the proceedings {o). But after a 
 de murrer to the whole of a bill has been argued 
 and allowed, the bill is out of court, and therefore 
 cannot be regularly amended (^?). To avoid this 
 
 (m) 3 P. Wms. 149 ; Roherdeau v. Cane. 565 ; 1 Harrison, Chan. Pract. 
 
 Rous, 1 Atk. 544. ^ 39. 
 
 (n) North V. Earl and Countess of (p) See above, p. 15,note (0;i'Or<f 
 
 Strafford, 3 P. Wms. 148 (1). Coningsby v. Sir Jos. Jekyll, 2 P. W. 
 
 (o) Anon. Mosely, 301 ; 1 Ves. Jun. 300, and note, and Watkins v. Bush, 
 
 448 ; Anon. 9 Ves. 221 ; 1 Aim. Cur. Dick, 701. (3) 
 
 (1) [Same principle recognised in Little v. Archer, 1 Hogan, 55.] 
 
 (2) [Where the defendant files a faulty and informal demurrer to 
 a bill in chancery, the complainant is not entitled to have it dismissed, 
 but must set it down for argument. Hurst v. Hurst, C. C. U. S. Penn. 
 Apr. 1806. MS. Coxe's Dig. p. 145. 
 
 There should be no joinder in demurrer. The cause is to be set down 
 for argument of the demurrer. Beauchamp v. Gibhs, 1 Bibb'd (Ken- 
 tucky) R. 481. By the practice of the State of New- York, either 
 party may notice a demurrer for argument. 47tli Rule. 
 
 On the argument, the complainant is bound by the case stated in the 
 bill in relation to the discovery sought, and will not be allowed to 
 maintain his right to discovery upon a suggestion ore tenus at the bar 
 not consistent with the case made in the bill. Little v. Archer, sujira.] 
 
 (3) [Also Lyon v. TallmaJge, 1 J. C. R. 184.] 
 
 22
 
 254 * DEMURRERS. [ClIAP. IL 
 
 consequence the court has sometimes, instead of 
 deciding upon the demurrer, given the plaintiff 
 Uberty to amend his bill, paying the costs incurred 
 by the defendant; and this has been frequently done 
 in the case of a demurrer for want of parties ((/). 
 
 255 Where a demurrer leaves any part of a bill un- 
 touched, the whole may be amended notwithstand- 
 ing the allowance of the demurrer ; for the suit in 
 
 [216] that case continues in court, tlie want of which 
 circumstance seems to be the reason of the con- 
 trary practice where a demurrer to the whole of a 
 bill has been allowed. A demurrer being frequent- 
 ly on matter of form is not in general a bar to a 
 new bill ; but if the court upon a demurrer has 
 clearly decided upon the merits of the question 
 between the parties, the decision may be pleaded 
 in bar of another suit (r). 
 ^eeeuiiyfoT a \ dcmurrcr being always upon matter apparent 
 upon the face of the bill, and not upon any matter 
 alleged by the defendant, it sometimes happens 
 
 (q) And the court upon allowing a duced, under some circumstances, to 
 
 demurrer, will sometimes give the set the Ciiuse ou foot again, and to 
 
 plaintiff leave to amend ; see Mayor, authorize an amendment to the bill. 
 
 ^c. of London v. Levy, 8 Yes. 398 ; See 11 Ves. 72 (1). 
 
 Edwards v. Edwards, 6 Madd. 255 ; (r; See the cases upon demurrers 
 
 and it seems probable that, even after to blls of review cited above, p. 242, 
 
 allowance, the court might be in- note (a). 
 
 (1) [Also Marshall v. Lovelass, Cameron & Norwood's { North Caro- 
 lina) R. 239, 264 ; Brouthin v. Lovelass, lb. 520 ; Rose v. K'm.^, 4 Hen. 
 & Munf. 157; Lyon v. Tallmadge, supra; MilUgan v. MilUdge, S 
 Cranch, 220. It eeems, that in Kentucky a bill will be dismissed for 
 want of parties ; although it will be done without prejudice. Barry v. 
 Rrgers, 3 Bibb, 314; Foster v. Hunt, lb. 33 ; Caldwell v. Hawkins, 1 
 Litt. 214. If a demurrer is overruled, the complainant may, within ten 
 days ihereaf er, amend his bill of course and without costs. 43 Rule 
 N. Y. Chancery.]
 
 S. II. p. I.] DEMURRERS. 255 
 
 that a bill, which, if all the parts of the case were 
 disclosed, would be open to a demurrer, is so art- 
 fully drawn as to avoid showing upon the face of it 
 any cause of demurrer. In this case the defendant 
 is compelled to resort to a plea, by which he may 
 allege matter which, if it appeared on the face of the 
 bill, would be good cause of demurrer. For in 
 many cases what is a good defence by way of plea 
 is also good as a demurrer, if the facts appear suffi- 
 ciently by the bill (s). And if a demurrer should rieaafterade- 
 be overruled on argument because the facts do not 
 sufficiently appear on the face of the bill, defence 
 may be made by plea, stating the facts necessary to 
 bring the case truly before the court, though it has 
 been said that the court would not permit two dila- 256 
 
 tories (^). And after a plea overruled, it is said [217] 
 that a demurrer was allowed, brinofincp before the apiea. 
 court the same question in substance as was agitated 
 in arguing the plea (m). But after a demurrer has ^second demnr- 
 been overruled, a second demurrer will not be al- 
 lowed {x) ; for it would be in effect to rehear the 
 
 (s) See Hetley, 139. But see 3 491,492. 
 Atk. 22G. 'x) .«ee 2 Bro. C. C. 66 ; and see 
 
 (t) Hudson V. Hudson, in Chdu. above,p. 253, note (O- Where, how- 
 
 23 April, 1734. Reported 1 Sim. & ever, a demurrer was informal in its 
 
 Stu. 512, note; Rowley v. Eccles, 1 frame, but good in Pukstance, it was 
 
 Sim. &. Stu. 511. overruled, with liberty to the defen- 
 
 («) E. India Company v. Camp- dant to file another, iiee Devonsherv. 
 
 bell, I Ves. 246. But it may be iVe«i(?;(/(a7/»,2 Sch. &, Lefr. 199. And, 
 
 doubted whether this case has not inconsequenceof the modern doctrine, 
 
 been mistaken by the reporter, and that a defendant who submits to an- 
 
 whether the question was not on ex- swermust in general answer fully (1), 
 
 ceptions to an answer. See 2 Ves. see below, ch. 2, sect. 2, part 3 [page 
 
 (1) By the 38ih order of August, 1841, " a defendant shall be at 
 liberty by answer to decline answering any interrogatory or part of an 
 interrogatory, from answering which he might have protected himself 
 
 rer.
 
 256 PLEAS. [Chap. II. 
 
 case on the first demurrer ; as on argument of a 
 demurrer any cause of demurrer, though not shown 
 in the demurreras filed, may be alleged at the bar, 
 and if good will support the demurrer {y). 
 
 257 CHAPTER II. 
 
 [218] 
 
 Section II. — Part II. 
 
 Of Pleas. 
 
 S?of piea^^*' I^ treating of pleas the same order may be conve- 
 niently pursued as has been already used in treat- 
 ing of demurrers. Pleas to original bills will there- 
 fore be first considered, and under that head the 
 nature of pleas in general, and the principal grounds 
 
 306], this court in some instances, (y) As to demurrers ore tenus, see 
 
 onoverruiinga demurrer to discovery, Pyle v. Price, 6 Ves. 779; 8 Ves. 
 
 instead of giving the defendant lib- 408 ; Dummer v. Corporation of 
 
 erty to insist by answer that he is not Chippenham, 14 Ves. 245; 17 Ves. 
 
 bound to make the disclosure required, 216; Att. Gen. v. Moses, 2 Madd. 
 
 will give him liberty to file another 294 ; 1 Swanst. 288 ; Knye v. Moore, 
 
 less extensive. See Thorpe v. Ma- 1 Sim. & Stu. 61 ; Hook v. Dorman, 
 
 cauley, 5 Madd. 218. 1 Sim. & Stu. 227 (2). 
 
 by demurrer ; and that he shall be at liberty so to decline, notwith- 
 standing he shall answer other parts of the bill from which he might 
 have protected himself by demurrer." 
 
 (2) Garlick v. Strong, ? Paige's C. R. 440. 
 
 Under a general demurrer for want of equity, a demurrer o'-e tenus 
 may be n.ade for want of parties. Stillwell v. McNeelsy, 1 Green's 
 C R. 305; 2 Mylne & Craig. 145. A demurrer for want of parties 
 must show who are the proper parties ; not indeed by name, for that 
 might be impossible ; but in such a manner as to point out to the plain- 
 tiff the objection to his bill, and enable him to amend by adding the 
 proper parties. '4 Mylne &, Craig. 17.
 
 S. II. p. II.] PLEAS. 257 
 
 of plea to every kind of bill, will necessarily be 
 noticed : the distinct pleas applicable peculiarly 
 to the several other kinds of bill will be next men- 
 tioned ; and in the third place the frame of pleas 
 in general, and the manner in which their validity 
 may be determined, will be considered. Pleas to 
 original bills will also be considered under the two 
 heads of pleas to relief and pleas to discovery only, 
 and these will necessarily involve the consideration 
 of pleas to bills of discovery merely. 
 
 A demurrer has been mentioned to be the proper ^^^V^^^""' 
 
 I V answer ib ne- 
 
 mode of defence to a bill when any objection to *=^«"'"y- 
 it is apparent on the bill itself, either from matter 
 contained in it, or from defect in its frame, or in the 
 case made by it. When an objection to a bill is 
 not apparent on the bill itself (z), if the defendant 
 means to take advantage of it, he ought to show to ["2191 
 the court the matter which creates the objection, 258 
 
 either by answer, or by plea which has been descri- 
 bed as a special answer, showing or relying upon 
 one or more things as a cause why the suit should 
 be either dismissed, delayed or barred (ci) (1). 
 The defence proper for a plea is such as reduces 
 the cause, or some part of it, to a single point (h), 
 
 («) See Billing v. Flight, 1 Madd. (a) Prao. Reg. 324 ; Wy. Ed. 2 
 R. 230. Sch. & Lefr. 725 ; 1 Madd. R. 194. 
 
 (6) lAtk.54; 15 Ve8.82,377 (2). 
 
 (1) [The correctness of this definition of a plea recognized and illus- 
 trated by Lube, p. 238 ; and see Lord Drogheda v. Malone., Finlay'a 
 Digest, 449. Carroll v. Warivg, 3 Gill & JohiK«. 491. As a demurrer 
 collects the negative rule of law from the com|ilainant's own statement, 
 BO the plea, on the other hand, deduces the same conclusion from a new 
 etatement by the defendant. Lube, 341.] 
 
 (2) [Goodrich v. Pendleton, 3 J. C. R. 384. It must be perfect in 
 itself, so that, if true in fact, it will put an end to the cause. Allen v.
 
 258 PLEAS. [Chap. II. 
 
 and from thence creates a bar to the suit, or to the 
 part to which the plea apphes (r) (1). It lias been 
 observed, that the end of a plea is to save to the 
 parties the expense of an examination of witnesses 
 at large ; and that therefore it is not every good de- 
 fence in equity that is good as a plea : for that 
 where the defence consists of a variety of circum- 
 stances, there is no use of a plea, as the examina- 
 tion must still be at large ; and the effect of allow- 
 ing a plea would be, that the court would give 
 judgment on the circumstances of the case before 
 they were made out by proof (d), 
 of S"*^*^*" Pleas have been generally considered as of three 
 sorts : to the jurisdiction of the court ; to the per- 
 son of the plaintff or defendant ; and in bar of the 
 suit (2). As they have been usually arranged un- 
 der these heads, it may be convenient to consider 
 them in some degree with reference to that ar- 
 
 (c) 2 Bligh, P. C. 614. 54; S. C, 1 Harr. Chan. Prac. 356 ; 
 
 (d) Chapman v. Turner, 1 Atk. 2 Bligh, P. C. 614. 
 
 . \ 
 
 Randolph, 4 lb. 693 ; Lord Drogheda v. Malone, supra. Where a de- 
 fence consists of a'variety of distinct facts and circumstances, there 
 can be no saving by plea. Laud v. Sergeant, 1 Edwards' V. C. Re- 
 ports, 164. 
 
 A plea will be overruled if it does not set forth any new matter, 
 although the objection raised by it would have been valid if it had been 
 urged by way of demurrer. Cozine v. Graham, 2 Paige's C. R. 177.] 
 
 (1) Ihe plea must be of some fact which if proved will be a bar to 
 the entire suit, or at least to an entire substantive part of the suit, and 
 in the latter case if it does not go to the whole suit, the defendant must 
 answer or demur to the residue. A defendant may plead to part, an- 
 swer to part, and demur to part, where his case requires it ; but in 
 some form he may meet the whole substance of the bill. Newton v. 
 Thayer, 17 Pick. R. 132, 129. 
 
 (2) [Mr. Beames, however, very properly adds a fourth class, which 
 he terms to the bill. Willis, 486, note (a).]
 
 S. 11. p. II.] PLEAS. 258 
 
 rangment ; but the order before observed in treating 
 
 of demurrers may be at the same time pursued ; 
 
 and pleas may be considered with reference to the [220] 
 
 several grounds already mentioned on which de- "^9 
 
 fence may be made to a bill. 
 
 The objections to the relief sought by an original P|«a« *« o^sinai 
 bill which can be taken advantage of by way of 
 plea, are nearly the same as those which may be 
 the subject of demurrer ; but they are rather more 
 numerous, because a demurrer can extend to such 
 only as may appear on the bill itself, whereas a plea 
 proceeds on other matter. The principal are, 
 I. That the subject of the suit is not within the 
 jurisdiction of a court of equity ; IT. That some 
 other court of equity has the proper jurisdiction ; 
 III. That the plaintiff is not entitled to sue by rea- 
 son of some personal disability ; IV. That the 
 plaintiff is not the person he pretends to be, or does 
 not sustain the character he assumes ; V, That the 
 plaintiff has no interest in the subject, or no right 
 to institute a suit concerning it ; VI. That he has 
 no right to call on the defendant concerning it ; 
 VII. That the defendant is not the person he is 
 alleged to be, or does not sustain the character he 
 is alleged to bear ; VIII. That the defendant has 
 not that interest in the subject which can make him 
 liable to the demands of the plaintiff ; IX. That for 
 some reason, founded on the substance of the case, 
 the plaintiff is not entitled to the relief he prays ; 
 [X. That the defendant has an equal claim to the 
 protection of a court of equity to defend his posses- 
 sion, as the plaintiff has to the assistance of the
 
 260 PLEAS. [Chap. IL 
 
 court to assert his right] (1). Of these, the second 
 is the plea generally termed a plea to the jurisdic- 
 tion of the court ; and the third, the fourth, and the 
 seventh, are treated as pleas to the person of the 
 [221] plaintiff and defendant ; the others are considered 
 as pleas in bar of the suit. XI. The deficiency 
 of a bill to answer the purposes of complete justice 
 may also be shown by plea, which may be consid- 
 ered as in bar of the suit, though perhaps a tem- 
 porary bar only. XII. The impropriety of un- 
 necessarily multiplying suits may be the subject of 
 plea, which is also in bar of the suit : but the in- 
 convenience which may arise from confounding 
 distinct matters in the saitie bill, as it must be ap- 
 parent on the bill itself, unless very artfully framed, 
 can in general only be alleged by demurrer. 
 
 riXtion''^ ^" Those pleas which are commonly termed pleas 
 to the jurisdiction of the court, do not dispute the 
 rights of the plaintiff in the subject of the suit, or 
 that they are fit objects of the cognizance of a court 
 of equity, but simply assert that the court of chan- 
 cery is not the proper court to take cognizance of 
 
 pieM to the per- thoso rights. Plcas to the person of the plaintiff 
 also do not dispute the validity of the rights which 
 are made the subject of the suit, but object to the 
 plaintiff that he is by law disabled to sue in a court 
 of justice, or cannot institute a suit alone ; or that 
 he is not the person he pretends to be, or does not 
 sustain the character he assumes. Pleas in bar 
 
 Pleas in bar. ^j-g commouly described as allegations of foreign 
 
 (1) The passage within the brackets is inserted, and the following 
 numerals are altered from X. and XI. to XI. and XII., in order to make 
 this part agree with what occurs at original pnges [274^ and [280].
 
 S. II. p. II.] PLEAS. • 26a 
 
 matter, whereby, supposing the bill, so far as it is 
 not contradicted by the plea (e) to be true, yet 261 
 
 the suit, or the part of it to which the plea ex- 
 tends, is barred (/). But this description per- 
 haps does not comprise every kind of plea, or does 
 not mark the distinctions between the different [222] 
 kinds with sufficient accuracy. 
 
 I. The general objects of the jurisdiction of a rigdlS."^ ^"' 
 court of equity, and the manner in which a want of 
 jurisdiction may be alleged by demurrer, when a 
 bill does not propose to attain any of those objects, 
 or it is apparent on the face of it that none can be 
 attained by it, have been already mentioned. A 
 case which is not really such as will give a court 
 of equity jurisdiction cannot easily be so disguised 
 in a bill as to avoid a demurrer ; but there may be 
 instances to the contrary ; and in such cases it 
 
 (e) 2 Atk. 51. (/) Prac. Reg. 327, VVy. Ed ; 1 
 
 Madd. R. 194(l)i 
 
 (1) [The rules which have been adopted in England in relation to 
 pleas in bar to bills in equity, when resorted to by defendants, are con- 
 sidered as applicable in the equity courts of Maryland. Chase v. M Don- 
 ald, 1 Harris &, Johnson, 160. A plea in bar to a bill in equity, deny- 
 ing part of the material facts stated in the bill, is not good. A mere 
 denial of facts is proper for an answer, but not for a plea. Milligan v. 
 Milledge, 3 Cranch, 220.] 
 
 The genera'l rule of the court of chancery is: matters in abatement 
 and to the jurisdiction, being preliminary in their nature, mu?t be taken 
 advantage of by plea; and cannot in a general answer which necessa- 
 rily admits the right and capacity of the party to sue. Livingston v. 
 Story, 11 Peters, 393, 351. 
 
 A plea to the jurisdiction, as the allegement of plaintiff, is a plea in 
 abatement for a gen ral answer, admits the competency of the court to 
 entertain the suit, bat if the objection is apparent on the record the 
 court will dismiss it whether parties will consent or not. It is a great 
 mistake to suppose if parties do not object to a matter, the court are 
 bound to entertain cognizance of it and decide it. Wood v. Mann, 1 
 Sumner R. 580, et seq. 678.
 
 261 PLEAS. [Chap. II. 
 
 should seem a plea of the matter necessary to show 
 that the court has not jurisdiction of the subject, 
 though perhaps unavoidably in some degree a ne- 
 gative plea, would hold (g). Thus, if the jurisdic- 
 tion was attempted to be founded on the loss of an 
 instrument, where, if the defect arising from the 
 supposed accident had not happened, the courts of 
 ordinary jurisdiction could completely decide upon 
 the subject, perhaps a plea, showing the existence 
 of the instrument, and that it was in the power of 
 the plaintiff to obtain a production of it, ought to 
 be allowed, though instances of this sort of plea 
 may not occur in practice. For it seems highly 
 unreasonable that a plaintiff, by alleging a falsehood 
 
 262 in his bill, should be permitted to involve a defend- 
 ant in the expense of a suit in equity, though the 
 bill may finally be dismissed at the hearing of the 
 
 [223] cause, if the defendant answers the case made by 
 it, and enters into his defence at large. No 
 authority, however, occurs to support such a plea 
 (/*) ; and as there is little disposition in the courts 
 of equity to countenance those defences which 
 tend to prevent the progress of a suit to a hearing 
 in the ordinary way, whatever the expense of the 
 proceeding may be, it would hardly be prudent to 
 endeavor thus to put a stop to an attempt to transfer 
 the jurisdiction of a suit from the ordinary courts 
 to a court of equity ;. and indeed the guard put upon 
 cases of this kind, by requiring the affidavit of the 
 plaintiff of the truth of the matter which he alleges 
 by his bill to support the jurisdiction of the court, 
 is likely to prevent any abuse upon this head. 
 
 ig) See Armitagev. Wadaworth, (A) See 1 Madd. R. 195. 
 1 Madd. R 189.
 
 S. II. p. II.] PLEAS. 262 
 
 II. Though the subject of a suit may be 'within i'^o^^^f* 
 the jurisdiction of a court of equity, yet if the court p?^p'i'r j^dic- 
 of chancery is not the proper jurisdiction, the de- 
 fendant may plead the matter which deprives the 
 court of jurisdiction, and show to what court the 
 jurisdiction belongs (i), and upon this ground may 
 demand the judgment of the court whether he shall 
 be compelled to answer the bill (k) (1). Pleas of 
 this nature arise principally where the suit is for 
 land within a county palatine (/) (2), or where the 
 defendant claims the privileges of an university (m), 263 
 
 or other particular jurisdiction {n). [224] 
 
 The court of chancery being a superior court of 
 general jurisdiction, nothing shall be intended to 
 be out of its jurisdiction which is not shown to be 
 so (o) (3). It is requisite, therefore, in a plea to the 
 jurisdiction of the court, to allege that the court 
 
 (t) Earl of Derby v. Duke of in the same, and for lands there, and 
 
 Athol, 1 Yes. 202; Nabob of the matters local. Nels. Rep.37, 66. Sea 
 
 Carnatic v. E. I. Camp., 1 Ves. Jun. also Willoughby v. Brearton, Gary's 
 
 371 ; S. C. S'Bro. C.C. 292. Rep. 60 ; Gerrard v. Stanley, 1 Cha. 
 
 (i) Ch. Prac. 417, 420; 3 Atk. Rep. 278. 
 
 264. (/n) Temple v. Foster, Gary Rep. 
 
 (J) Gom. Dig. Gtian. Plea 1.1 65 ; Cotlan v. Maneriug, Gary Rep. 
 
 Chan. Prac. 420 ; Edgworth v. Da- 73 ; Drapers. Crowther, 2 Vent. 362 ; 
 
 vies, 1 Ga. inGha. 40. Reported, upon Stephens v. Berry 1 Veni.212. 
 
 view of precedents, that the jurisdic- («) See Cunningham v. Wegg, 2 
 
 tion of the counties palatine was al- Bro. G. G. 241. 
 
 lowed, between parties dwelling with- (o) 1 Ves. 204 ; 2 Ves. 357. 
 
 (1) As to plea to jurtsdlction of a state court by foreign consul or 
 public minister, and the doctrine of their exemption fro:n suit in state 
 courts, see Davis v. Packard and others, (on mandate from the Su- 
 preme Court of the United States upon revertsal of a decision of the 
 Court of Errors of New-York,) 10 Wend. R. 53, et seq 74, 60. 
 
 (2) See note, page 6. 
 
 (3) Tiie mere fact that a case is in conformity with the principles of 
 natural equity and justice, is not sufficifnt to bring it within the juris- 
 diction of a court of equity. There are many principles of natural 
 equity and justice which are not attempted to be enforced therein. 
 Howe V. ^heppard, 2 Sumner's C. C. R. 409.
 
 263 PLEAS. [Chap. IL 
 
 has nol jurisdiction of the subject, and to show by 
 what means it is deprived of jurisdiction (^;). It 
 is hkewise necessary to show what court has ju- 
 risdiction (q). If the plea does not properly set 
 forth these particulars (r) it is bad in point of 
 form (s). In point of substance it is necessary, to 
 entitle the particular jurisdiction to exclusive cog- 
 nizance of the suit, that it should be able to give 
 complete remedy (t). A plea, therefore, of privi- 
 lege of the university of Oxford, to a bill for a 
 specific performance of an agreement touching 
 
 264 . lands in Middlesex, was overruled ; for the univer- 
 
 sity court could not give complete relief (i^). And 
 [225] if a suit is instituted against different persons, some 
 of whom have privilege, and some not (x) ; or if 
 one defendant is not amenable to the particular 
 jurisdiction («/), a plea will not hold. If, likewise, 
 there is a particular jurisdiction, and yet the parties 
 to litigate any question are both resident within 
 the jurisdiction of the court of chancery ; as upon 
 a bill concerning a mortgage of the island of Sarke, 
 both mortgagor and mortgagee residing in Eng- 
 land, the court of chancery will hold jurisdiction of 
 the cause : for a court of equity agit in per so- 
 
 (p) See 3 Bro. C. C 301 ; 1 Ves. (t) Newdigaie v. Johnson, 2 Ca- 
 
 Jun. 388. in Cha. 170 ; Wilkins v. Chalcroft, 
 
 (q) Strode y. Little, 1 Vern. 59 ; 22 Vin. Abr.lO ; Green v. Ruther- 
 
 Earl of Derby v. Duke of Athol, 1 forth, 1 Ves. 463. 
 
 Ves. 202 ; S". C. Dick. 129. - (m) Draper v. Crowther, 2 Ventr. 
 
 (r) See Moor v. Somerset, Nels. 362; Siepherisv. Berry, \ Vein. 212. 
 
 Rep. 51 ; and see 9 Mod. R. 95. (x) Lowgher v. Lowgher, Gary's 
 
 (s) Foster v. Vassall, 3 Atk. 587. Rep. 55 ; S". C. 22 Vin. Abr. 9 ; Fan- 
 
 And see Nabob of Arcot v. East Ind. shaw v. Fanshaw, 1 Vern. 246. 
 
 Comp. 3 Bro. C. C. 292 ; S. C. 1 Ves. (y) Grigg's case, Hutton, 59 ; and 
 
 Jun. 371. see 4 Inst. 213 ; Hilton v. Lawsoriy 
 
 Gary's R. 48.
 
 B. 11. P. II.] PLEAS. 264 
 
 n(iin(z). So where the court may not have juris- 
 diction to give relief, it may yet entertain a bill for 
 a discovery in aid of the court which can give 
 relief, if the same discovery cannot be there ob- 
 tained ; as if the jurisdiction be in the king in coun- 
 cil, where the defendant cannot be compelled to 
 answer upon oath (a). 
 
 Similar to a plea to the jurisdiction is the case of 
 a plea to an information charging an undue election 
 of a fellow of a college in one of the universities, 
 " that by the statutes the visitor of the college ought 
 *' to determine all controversies concerning elec- 
 " tions of fellows, and that such controversies ought 
 " not to be determined elsewhere (^)." But the 
 extent of the visitor's authority must be averred, 265 
 
 and it must also be averred that he is able to do 
 complete justice (r). And where there is a trust 
 created, the visitor having no power to compel per- [226] 
 formance of the trust, relief must be had in the 
 king's courts of general jurisdiction (d). 
 
 III. In respect to the person of the plaintiff, it m. Dieabiiity of 
 
 ^ . * , ^ the plaintifl". 
 
 may be shown that he is disabled to sue, as being, 
 1, outlawed ; or 2, excommunicated ; or 3, a popish 
 recusant convict ; or 4, attainted in a premunire, or 
 of treason or felony ; or 5, an alien ; or it may be 
 shown, 6, that the plaintiff is incapable of insti- 
 tuting a suit alone. A plea of this kind is in the 
 nature of a plea in abatement of the suit. 
 
 (2) Toller V. Carteret, 2 Vern. 494 ; (c) 1 Ves. 474. 
 
 1 Ves. 204 ; 3 Ves. 182 ; 5 Madd. 307. (d) Green v. Riitherforth, 1 Ves. 
 
 (a) 1 Ves. 20S. 462 ; and see 4 Bro. C. C. 167 ; 2 Ves. 
 
 (6) Att. Gen. v. Talbot, 3 Atk. Jun. 47 ; 13 Ves. 533 ; Ex parte 
 
 662 ; S. C.l Vee. 78. And see 1 V^s. Berkhamstead Srhool, 2 Ves. &. B. 
 
 472, 474, 475 ; 2 Ves. 328. 134.
 
 265 PLEAS. [Chap. 11. 
 
 1. Oatlawry. 
 
 1. A person outlawed is disabled from suing in 
 a court of justice, and if a bill is filed in his name 
 the defendant may plead the outlawry, which, 
 whilst it remains in force, will delay the proceed- 
 ing (e). The record of the outlawry, or the capias 
 thereupon, must be pleaded sub ijede sigilli, and 
 is usually annexed to the plea (/) (1). A plea of 
 266 outlawry, in a suit for the same duty or thing for 
 
 [227] which relief is sought by the bill, is insufficient ac- 
 cording to the rule of law, and shall be disallowed 
 of course, as put in for delay (^). Otherwise a 
 plea of outlawry is always a good plea, so long as 
 the outlawry remains in force (A); but if that shall 
 be reversed, the plaintiff, upon payment of costs, 
 may sue out fresh process against the defendant, 
 and compel him to answer the bill (^). Outlawry 
 in a plaintiff, executor or administrator, cannot be 
 pleaded ; for he sues in auter droit (k). It is 
 
 {e) A plea of outlawry may be filed alluded to had been omitted, by mis- 
 
 without oath, 1 Ca. in Cha. 258 ; takeof the clerk of the outlawries, the 
 
 Took V. Took, 2 Vern. 198 ; Anon.'i plea was allowed to be amended, by 
 
 Freem. 143, Hovend, Ed.: but see annexingtoit an office-copy of the ex- 
 
 Parrotv. Bowden, ib. 37, the main igent, or record of the outlawry.' Wa- 
 
 fact appearing upon record, Ord. in ters v. Mayhew, I Sim. & Stu. 220. 
 Cha. Ed. Bea. 23 ; 2 Ves. & Bea. 357 ; (g) See Philips v. Gibbons, 1 Ves. 
 
 and a mere averment of identity being & Bea. 184 ; Ord. in Cha. Ed. Bea. 
 
 considered sufficient, 2 Vern, 199 ; 175. 
 
 and see 19 Ves. 83. And such a (h) Or. in Cha. Ed. Bea. 175 ; 3 
 
 plea may be filed by a defendant who Bac. Abr. 761, Outlawry (3). 
 isincontempt. Waters v. Chambers, (t) Ord. in Cha. Ed. Bea. 175 ; and 
 
 I Sim. & Stu. 225. see Peyton v. Agliffe, 2 Vern. 312. 
 
 (/) TothiU, 54 ; Prac. Reg. 327, (k) Killigrew v. Killigrew, 1 Vern. 
 
 Wy. Ed. ; Ord. in Cha. Ed. Bea. 27. 184 ; Pxac. Reg. 326, Wy. Ed. 
 And in a case in which the formality 
 
 (1) [See the form of Each a plea, Willis, 503. Outlawry can take 
 place in the State of New-York only upon a conviction fur treason. 2 
 Revised Statutes, 653, 745.]
 
 S. II. p. II.] PLEAS. 266 
 
 equally insufficient if alleged in disability of a per- 
 son named in a bill as the next friend of an infant 
 plaintiff (Z), or in an information as a relator (w). 
 
 2. The defendant may plead tliat the plaintiff is ^ Excommuni. 
 
 J r I cation. 
 
 excommunicated (?^) (1), which must be certified 
 by the ordinary, either by letters patent containing 267 
 
 a positive affirmation that the plaintiff stands ex- 
 communicated, and for what ; or by letters testi- 
 monial, reciting, "quod scrutatis registeriis inveni- 
 tur,^^ &c. Either of these certificates must be sub 
 sigillo, and so pleaded (o). Excommunication is [2283 
 a good plea to an executor or administrator, though 
 they sue in aiiter droit (p), hut not to the next 
 friend of an infant (q). This, like the plea of out- 
 lawry, ceases to be a bar when the disability is re- 
 moved ; and therefore the plaintiff, purchasing let- 
 ters of absolution, may, as at law, sue out fresh 
 process, and compel the defendant to answer the 
 bill (r). 
 
 3. By statute 3 Ja. I. c. 5, s. 11, every popish 3 p^p^t 
 
 (Z) Prac. Reg, 327, Wy. Ed. appear upon record. Ord. in Cha. 
 
 (m) There is a case, Att. Gen. v. Ed. Bea. 26, and 2 Ves. & Bea. 327. 
 Heath, Prec. in Cha. 13, where a (o) Ord. in Cha. Ed. Bea. 27 ; Prac. 
 
 plea of outlawry, in disability of the Reg. 327, Wy. Ed. Totliill, 54. 
 person of a relator, is said to have (p) Co. Litt. 134, a. ; 2 Bac. Abr. 
 
 been allowed in the duchy-court of 319 ; Exconi. (D). 
 Lancaster. But the relator seems to (q) Prac. Reg. 278. 
 have sustained the cliaracter of plain- {r) Amers v. Legg, Choice Ca. in 
 
 tiff as well as of relator. See 3 Bac. Cha, 164 ; Prac. Reg. 327, Wy. Ed. 
 
 Abr. 762, OiUlavvry (3) ; and see also It should here be mentioned, that by 
 
 Waller v. Hanger, 2 Bulstr. 134 ; stat. 53 Geo. III. c. 127, e.xcommuni- 
 
 Palmer's case, And. 30. cation is discontinued, except in cer- 
 
 (n) And this plea may be put in tain cases therein specified, 
 without oath, if the e.\comnuiuication 
 
 (1) This disability lias been removed by the stat. 53 Geo. III. c. 
 127, 8. 3.
 
 267 PLEAS. [Chap. II. 
 
 recusant convict is in many cases disabled to sue (1), 
 in the same manner as a person excommunicated. 
 The instances of a plea of conviction of recusancy 
 have probably been rare, as no traces of any occur in 
 the books of reports, nor does the form of the plea 
 appear in the books of practice. If advantage 
 should be attempted to be taken of this statute, the 
 court would probably require the same averments to 
 support the plea as are necessary to a plea of the 
 
 ggg same nature at law (s). This plea also ceases to 
 
 be a bar if the plaintiff by conforming removes the 
 disability (t). 
 
 '*' ^oSm ^' ^ plea, that the plaintiff is disabled from suing 
 
 being attainted, is equally rare (2^). It would pro- 
 bably be likewise judged with the same strictness 
 as if it was a plea at law (x). 
 
 5. Alienage. 5. Thcrc is little more to be found in the books 
 
 upon the subject of a plea that the plaintiff is an 
 alien (?/) (2). An alien, who is not an alien enemy, 
 
 (s) 3 Bac. Abr. 780. Papists, (1). can be proved by the record alone. 
 
 See Lord Petre v. Univ. of Cam- v. Danes, 19 Ves. 81 ; 2 Ves. 
 
 bridge, Lutwyclie, 1100. & Bea. 327. 
 
 (t) See Stat. 31 Geo. III. c. 32, s. (y) Burk v. Brown, 2 Atk. 397; 
 
 3, and valuable note to Co. Litt. p. 2 Vin. Abr. 274, Alien (1) ; 1 Bac. 
 
 391, a. note (2). Hargr. & Butl. Ed. Abr. 83, Alien (D^ ; Prac. Reg. 327, 
 
 j,u) See V. Dames, 19 Ves. Wy. Ed.; Rast. Entr. 252 ; Bolt v. Att. 
 
 81; and see Ex •parte Bullock, 14 Gen. 1 Bro. P. C. 421, Toml. Ed. ; 
 
 Ves. 452. And case on Irish statutes, Albretcht v. Sussman,^ Ves. & Bea. 
 
 Kennedy v. Daly, 1 Sch. & Lefr. 323 ; and see Ex parte Lee, 13 Ves. 
 
 355. 64 ; and Ex parte Boussmaker, 13 
 
 (x) 2 Atk. 399. This kind of plea Ves. 71. 
 is not to be supported by oath, but 
 
 (1) This disability has been removed by the stat. 31 Geo. III. c. 32. 
 
 (2} [See the form of a plea that the complainant is an alien enemy. 
 Willis, 513; 2 Equity Draft 94, (2d edit.); and the form of the one which 
 was used in Albretcht v. Sussman, (sujir.ii.) Jieames on Pleas, 329.]
 
 S. II. p. II.] PLEAS. 268 
 
 is under no disability of suing for any personal de- 
 mand («/) ; and an alien enemy may sue under some 
 circumstances (z). A plea has been put in to a 
 bill filed by an alien infidel not of the Christian 
 faith, and was attempted to be supported upon the 
 ground that the plaintiff was upon a cross-bill in- 269 
 
 capable of being examined upon oath. The plea 
 was overruled without argument (a). 
 
 6. If a bill is filed in the name of any person in- rertJ^eStey, 
 capable alone of instituting a suit, as an infant (1), r^SO] 
 a married woman (2), or an idiot or lunatic (3), so 
 found by inquisition, the defendant may plead the 
 infancy, the coverture (h), or the inquisition of 
 idiotcy or lunacy (c), in abatement of the suit. 
 
 IV. A plea that the plaintiff is not the person plaintiff^?* not 
 
 , II ■. -11 '^^ person he 
 
 he pretends to be, or does not sustam the character pretends to be, 
 
 '■ _ or doee not 8u«- 
 
 he assumes, and therefore is not entitled to sue as ^'v^e ^^"}f" 
 
 ' ter he asaumei. 
 
 such {d)y though a negative plea, is good in abate- 
 
 (y) Ramkissenseat v. Barker, 1 &nd Fisher, in Doug, note 1, p. 626. 
 
 Atk. 51. As to the incapacities of But the latter case was afterwards 
 
 aliens to take and to hold certain pro- reversed in the Exchequer Chamber, 
 
 perty, see Co. Litt. 2, b., and notes in 16th Nov. 1784. And see Evana v. 
 
 Ilargr. & Bull. Ed. In such cases, Richardson, 3 Meriv. 469. 
 
 it is presumed that a plea of mere (a) Ramkissenseat v. Barker, I 
 
 alienage, if properly framed, would Atk. 51. 
 
 be a sufficient defence. See Co. Litt. (b) Prac. Reg. 326, Wy. Ed. 
 
 129 (6) ; and Burk v. Brown, 2 Atk. (c) See case of the plaintiff being 
 
 397. in a state of mere mental incapacity, 
 
 (z) 3 Burr. 1741 ; 1 Bac. Ab. 84, Wartnaby v. Wartnaby, 1 Jac. H. 
 
 Alien (D) ; Doug. 619; Cornu and 377. 
 
 Blackburne, and the case of Anthon {d) Prac. Reg. 326, Wy. Ed. 
 
 (1) [See the form of a pica of infai.cy to a bill exhibited without a 
 next friend, Willis, 614.] 
 
 {2) [See the form of a plea of coverture of the complainant, Wiliia, 
 615.] 
 
 (3) [See the form of a plea of lunacy, Willis, 616.] 
 
 23
 
 ^9 PLEAS. [Chap. II. 
 
 ment of the suit ; as where a plaintiff entitled him- 
 self as administrator, (1) and the defendant plead- 
 ed that he was not administrator (e). And where a 
 plaintift* entitled himself as administrator of an in- 
 testate, and the defendant pleaded that the sup- 
 posed intestate was living (/), the plea was allow- 
 ed (2). It has been made a question how far a 
 negative plea can be good (g). To a bill by a 
 person claiming as heir to a person dead, the de- 
 fendant pleaded that another person was heir, and 
 that the plaintiff was not heir to the deceased, and 
 the plea was overruled (k), but this decision was 
 
 {e)Winn v. Fletcher, 1 Vera. 473 ; in the next page (3). 
 
 hut Bee Felly. Lutwidge, 2 Mk. 120; Ui) Newman v. Wallis, 2 Bro. 
 
 3 Barnard, 320. C. C. 142 ; and see Gunn v. Prior, 
 
 (/) Ord V. Huddleston, Dick. Dick. 657; S. C. 1 Cox, R. 197 ; 
 
 510 ; S. C. cited Cox, R. 198. Forrest, Ex. R. 88, n. Kinnersly v. 
 
 {g) But that question has been set Simpson, Forrest, 85. See also Earl 
 
 at rest. 11 Ves. 302,305. See in- of Strathmore v. Countess of Strath- 
 
 etances of negative pleas referred to more, 2 Jac. & W. 541. 
 
 (1) Plea that plaintiff is not administrator, he not having taken out 
 letters in the state where he filed his bill, (though he had in another 
 state where he was a citizen,) was held good on general principles. If 
 in former case he take out letters, he might file his bill in tl e Circuit 
 Court of the United States as a citizen of the latter state in his cha- 
 racter as administrator. Carter v. Treadwell, 3 Story R. 42, 60, 25. 
 
 [If a complainant sues as executrix, and has not obtained probate, 
 the defendant may raise the objection by plea. Bourke v. Kelly, 1 Ho- 
 gan, 172; Simons v. Milman, 2 Sim. 241. 
 
 The truth of a plea that the complainant is not the executrix of her 
 testator, must be tried under a reference and not a replication. Bourke 
 V. Kelhj, supra. 
 
 As to swearing to a plea in disability of the person, see Woods v. 
 Creagh, 1 Hogan, 221.] ' 
 
 (2) [See the form of such a plea, Willis, 617, For the form of a 
 plea by several defendants, that the complainants are not next of kin, 
 and averring that only one of the defendants sustains that character. 
 Equity Drait. 104,] 
 
 (3; [Also Beames on Pleas, 120 to 129; Warrington v. Molhersiil^ 
 7 Price, 666,]
 
 S. II. p. II.] PLEAS. • 270 
 
 afterwards doubted by the learned judge himself (i), 
 when pressed by the necessary consequence, that [231] 
 any person falsely alleging a title in himself might 
 compel any other person to make any discovery 
 which that title, if true, would enable him to re- 
 quire, however injurious to the person thus impro- 
 perly brought into court ; so that any person might, 
 by alleging a title, however false, sustain a bill in 
 equity against any person for any thing so far as 
 to compel an answer ; and thus the title to every 
 estate, the transactions of every commercial house, 
 and even the private transactions of every family, 
 might be exposed ; and this might be done in the 
 name of a pauper, at the instigation of others, and 
 for the worst purposes (k) (2). To avoid this in- 
 
 (t) 3 Bro. C. C. 489 ; 1 Mudd. R. Hhowing who is lieir, would be good, 
 
 194. And it seems to have been for that the defendant might not be 
 
 established, that in Buch a case a plea able to prove. IG Ves. 264, 265 (1). 
 
 that the plaintiff is not heir, without (k) As further examples of uega- 
 
 (1) [And Bee Beames on Pleas, 123, 1-24, ei seq. and notes there.] 
 
 (2) Saeh a negative as above mentioned is a good plea. And where Necesjity for an 
 a plea is in subs' ance a negativj plea, tliougli in form it is an affirmative p'^yin'^a'pleTol 
 plea, it must be accompanied by an answer as to allegations which, it true, ^° '»'•«• 
 vi'oukl disprove the plea. Thus where the plaintiff claims as heir ea: parte 
 
 materna, and the defendant pleads that another person is heir ex y:arle 
 faterna, in such case the p!ea is in substance a plea of no title as heir, 
 an I must be accompanied by the answer as to admissions of the plain- 
 tiff's title alleged to have been made by the defendant. Harland v. 
 Emerson, 8 Bligh, (N. S.) 62. 
 
 A plea which negatives to plaintiff's titlo, does not protect the defen- 
 dant from answer and discovery as to such matters as are specially 
 charged " as evidence," of the plaintiff's title. Sanders v. King, 2 
 Sim. & Stu. 277. But it does protect him from answer and discovery 
 generally as to the enbject of the suit; and indeed as to all matters 
 which the plaintifT does not distinctly inform the defendant are the cir- 
 cumstances by which the plaintiff's title is lo be established. Sandrs 
 V. Kivg, 2 Sim. & Stu. 277; Thring v. Edgar, 2 Sim. &.Stu. 274. 
 
 Admissions of title, however, form an exception to this. For, in order
 
 271 • PLEAS. [Chap. II. 
 
 convenience, a defendant has in some cases been 
 permitted to negative the plaintiff's title by answer, 
 and thus to protect himself against the required 
 discovery ; but in other cases this has not been al- 
 lowed, and the subject seems still to require further 
 consideration (/). 
 
 live pleas, see Drew v. Drew, (0 See 11 Ves. 283, 296 and 303, 
 
 2 Ves. & Bea. 159 ; Sanders v. King, and the several cases tliere cited, with 
 
 6 Madd. 61 ; and Yorke v. Fry, ibid, the discordant opinions of several 
 
 65 ; that plaintifFis not a partner (1) : judges. In the case of Gethin v. 
 
 and Thring v. Edgar, 2 Sim. &. Stn. Gale, cited in Ambl. 354, the Master 
 
 274 (2), and particularly at p. 280, of the Rolls sitting for the Chancel- 
 
 that he is not a creditor. lor, 29 Oct. 1739, said, it was one 
 
 thing to deny a title la the plaintiff, 
 
 to obtain an answer as to adiuissions of title, when in effect a plea of 
 no title is put in, it is hot necessary that the plaintiff should allege 
 such admissions "as evidence" of his right or title, or should by any 
 other terms point oat that he req^iires a discovery of tliem as evidence 
 of his title; because their very nature renders this superfluous. Har- 
 Innd V. Emerson, 8 Bligh, (N. S.) 62. 
 Plea of title in Where a plaintiff claims estates, either as heir to the person last 
 the defendant, seised, or as a remainderman under the limitations of a settlement in 
 
 without travers- 
 
 ingthepJaintiflPs the possession of the defendant, under which, as he charges, the person 
 last seised took only a life estate, or under t.he limitations of some 
 prior seltlt ment in the possession of the defendant, which, as he charges, 
 the person last seised had no power to defeat ; and the defendant pleads 
 that the person last seised had an estate tail, and suffered a recovery to 
 the use of himself in fee, and then devised the estates to the defendant, 
 but takes no notice of the settlement particularly mentioned in the bill 
 or of any other settlement, the plea will be overruled ; because the de- 
 fendant ought in such case to traverse the grounds of the plaintiff's 
 titie, or some substantial part of it — to deny the existence of such set- 
 tlement, or at least to deny the fact of his possession or knowledge of 
 the contents thereof. Hungate v.- Gascoigrie, 1 Russ. & M. 698. 
 
 (1) [To a bill filed by persons claiming title to an estate as the co- 
 heirs of A. ex parte materna, the defendants pleaded that another per- 
 son was the heir of A. ex parte patcrna, but did not set forth the pedi- 
 gree of that person. Semble, that such a plea is good. Emerson v. 
 Harland, 3 Simon's R. 490.] 
 ,(2) Warrington v. Mothersill, 7 Price, 666.]
 
 S. II. p. II-l PLEAS. 272 
 
 V. Interest in the subject of the suit, or a right 
 to the thing demanded, and proper title to institute [232] 
 
 . . . , . ^ ^ . J V. \VaIltofinte- 
 
 a suit concerning it, have been mentioned as essen- reet in the piam- 
 
 O ' titt", or of right 
 
 tially necessary to sustain a bill ; and it has been '"""^ 
 observed, that if they are not fully shown by the 
 bill itself, the defendant may demur. But a title 
 apparently good may be stated in a bill, and yet 
 the plaintifFmaynot really have the title he states (1), 
 
 and another to show a title in one's cited in the last note, and in the notes 
 
 self; and that the former had never to the next page and below, Chap. II. 
 
 been allowed as a good plea. — Mr. sect. 2, part 3. [P. 307.] 
 Cappet's note. See the authorities 
 
 (1) If a party having no interest be joined as co-plaintiff with a per- piea that a co- 
 son havintran interest, and that fact does not appear on the face of tlie certificated""" 
 bill, but is brought forward by a plea, such a plea is a good defence to bankrupt, 
 the suit. An instance of this kind occurs where an uncertificated banlv- 
 rupt is made a co plaintiff. Makepeace v. Haythonie, 4 Russ. 24 1. 
 
 If to a bill filed by the assignee of an insolvent debtor, the defendant ^'<''* °' ^^""^ °^ 
 pleads that the consent ot the creditors and of the Insolvent Debtors sent to a suit by 
 Court to the institution of the suit had not been obtained, the plea will [^gofvent "leb^ 
 be overruled ; because the provision made in tho statute as to such con- '"''' 
 sent is made for the benefit of the creditors alone. Casborne v. Bar- 
 sham, 6 Sim. 317. See also note, p. 180, supra. 
 
 AccordinL' to the case of Ockleston v. Benson, to a bill by the as.-siguees, or of nbankmpt. 
 of a bankrupt against a debtor, the latter may plead that the suit was 
 not instituted with the consent of the major part in value of thf' credi- 
 tors, at a meeting pursuant to the Act of Parliament. 2 S. & S. 265. 
 Butsee precedino paragraph and note, p. 180, supra. 
 
 A plea of no interest will be allowed, where a suit is instituted by Plea of uo inte- 
 two persons on behalf of themselves and all other shareholders in a of aphuntfttwho 
 company, but one of the two has sold and assigned his shares before the ^'^ nssignod. 
 institution of the suit. Doyle v. Muntz, 10 Jur. 914, V. C. W. 
 
 To a bill for dower, a plea of ne unqnes accoupk, that is, a plea that pieaof ;u i/«yw« 
 the plaintiff and the person whose widow siie claims to be were never "''''""I'''- 
 lawfully married, is a good plea. Poole v. Poole, 1 Coll. Eq. Ex. 331. 
 
 Where administration is granted under the impression that the de- pie^ ^f „<) pro. 
 ceased died intestate, and then the executor files a bill to recover part bajfimvingbeen 
 
 f^ granted. 
 
 of the assets, alleging that he has proved the will, a plea of no probate 
 having been granted will be allowed. For until probate is obtained, 
 it is not certain but that the administration is valid. Suiwn v. Mil- 
 man, 2 Sim. 241.
 
 273 PLEAS. [Chap. II. 
 
 either because he misrepresents himself, which has 
 been considered under the last head, or because 
 he suppresses some circumstances respecting hrs 
 title, which if disclosed would show either that 
 nothing was ever vested in him, or that the title 
 which he had has been transferred to another ; and 
 this the defendant may show by plea in bar of the 
 suit. As if a plaintiff claims as a purchaser of a 
 real estate, and the defendant pleads that he was a 
 papist, and incapable of taking by purchase (m) (1) ; 
 or a plaintiff claims property under a title accrued 
 previous to conviction of himself, or of a person un- 
 der whom he claims, of some offence which occa- 
 sioned a forfeiture (n), or previous to a bankruptcy 
 (o) (2), or any other defect in the title (p) of the 
 
 274 plaintiff to the matter claimed by the bill. A plea 
 [233] of conviction of any offence which occasions for- 
 feiture, as manslaughter, must be pleaded with 
 equal strictness as a plea of the same nature at 
 
 (m) See, however, 18 Geo. III. c. instance of a plea that the plaintiff 
 
 60, 8. 2; and the 43 Geo. III. c. 30, had taken the benefit of an act for 
 
 by which this incapacity is condition- the relief of insolvent debtors, De 
 
 ally removed. Minckwitz v. Udney, 16 Ves. 466. 
 
 (n) 2 Atk. 399; v. Davies, (p) Quilter v. Mussendine, G'llb. 
 
 19 Ves. 81. Oa. in Eq. 228 ; Hitchins v. Lander, 
 
 (0) Carleton v. Leighton, 3 Meriv. Coop. R. 34 ; Gait v. Osbaldeston, 1 
 667. See Lowndes v. Taylor, 1 Russ. R. 158, ju which the decision in 
 Madd. R. 423 ; S.C.2 Rose R. 365, S. C. reported 5 Madd. 428, was over- 
 432. It seems a plea of the plain- ruled; a.v\d see Ocklestone v. Benson, 
 tiff's bankruptcy must be upon oath. 2 Sim. & Stu. 265. 
 
 ^ Joseph V. Tvckey, 2 Cox R. 44- See 
 
 (1) This incapacity has been abolished by the stat. 10 Geo. IV. c. 
 7, s. 23. 
 
 (2) [See the form of a plea of bankruptcy of the complainant, Wil- 
 lis, 519. A plea that the complainant has taken the benefit of an act 
 for the relief of insolvent debtors, is to be found in De Minckwilt v. 
 Vdney, 16 Ves. 467.]
 
 S. II. p. II.] PLEAS. 874 
 
 common law (q). "But if a plea goes to show that 
 no title was ever vested in the plaintiff, though for 
 that purpose it states an offence committed, con- 
 viction of the offence is not essential to the plea, 
 and the same strictness is not required as in a case 
 of forfeiture. Thus, in the exchequer, to a bill seek- 
 ing a discovery of the owners of a ship captured* 
 and payment of ransom, the defendants pleaded 
 that the captor was a natural-born subject, and 
 the capture an act of piracy. Though- the barons 
 at first thought that the plea could not be support- 
 ed unless the plaintiff had been convicted of piracy, 
 and the record of the conviction had been annexed 
 to the plea, they were finally of opinion that as the 
 plea showed that the capture was not legal, and 
 that therefore no title had ever been in the plaintiff, 
 the plea was good, and they allowed it according- 
 ly (r). Pleas of want of title generally extend to 
 discovery as well as to relief (s). 
 
 It cannot often be necessary to make defence 
 on this ground by way of plea ; for if facts are not 
 stated in the bill from which the court will infer a 
 title in the plaintiff, though the bill does contain an 
 assertion that the plaintiff has a title, the defendant 
 may demur ; the averment of title in the bill being 275 
 
 not of a fact, but of the consequence of facts. 
 Thus, where a plaintiff stated an incumbrance on 
 a real estate, of which he was devisee, and averred [234] 
 that it was the debt of the testator, and prayed 
 that it might be paid out of the testator's personal 
 estate in case of the real estate devised, the de- 
 
 (q) 2 Atk. 399. (») Gilb. 229. 
 
 . (r) Fallv. , iBt May, 1782.
 
 275 PLEAS, [Chap. II, 
 
 fendant having pleaded that the testator had done 
 no act by which he made it his own debt, the plea 
 was overruled, because, whether it was his debt or 
 not was matter of inference from the facts stated 
 <» in the bill, and therefore the proper defence was 
 
 by demurrer (t). Accordingly the defendant af- 
 terwards denmrred, and the demurrer was al- 
 lowed (u). 
 yi.wantofpri- VI. lu treatiuff of demurrers notice has been 
 
 Tity betweenthe o 
 
 fendi^t*"*^ ^^' taken that though a plaintiff has an interest in the 
 subject of a suit, and a right to institute a suit con- 
 cerning it, yet he may have no right to call upon 
 the defendant to answer his demands ; and it has 
 been observed, that this happens where there is a 
 want of privity of title between the plaintiff and 
 defendant (a:). It would probably be difficult to 
 frame a bilt which was really liable to objection on 
 this head so artfully as to avoid a demurrer. But 
 if such a bill could be framed it should seem that 
 defence might be made by plea. 
 fend^^fifnot" VII. A plea that the defendant is not the person 
 aife|edtobe?OT hc is allcgcd to be, or does not sustain the charac- 
 
 doesnot sustain i-ii'ii i i- • i 
 
 the character tcr whicli lic IS alleDfed to bear, is mentioned as a 
 
 which he is al- " 
 
 ^ged to bear. p|g^ wliich may bc supported (t/). It seems to have 
 been considered as more convenient for a defend- 
 ant under these circumstances to put in an answer 
 alleging the mistake in the bill, and praying the 
 judgment of the court whether he should be com- 
 
 (0 Tweddell v. Tveddell, 25th Carroll \.M'aring,'i Gill &, John- 
 May, 1784, in Chattcery. son, 491.] 
 
 (u) Sam© cause, 18th July, 1786. (y) Prac. Reg. 326; Wy. Ed. 
 
 (x) See above, p. 184. [And see And see Griffith v. Baiema iiiFinck 
 
 R.334. 
 
 [235]
 
 S. II. p. II.] PLEAS. 276 
 
 pelled further to answer the bill (y), but this in fact 
 amounts to a plea, thougii it may not bear the title; 
 and a plea has been considered as the proper de- 
 fence (z) (1). 
 
 VIII. If a defendant has not that interest in the vm. wam of 
 
 interest in the 
 
 subject of a suit which can make him liable to the defeudant. 
 demands of the plaintift' (2), and the bill alleging 
 that he has or claims an interest avoids a demur- 
 rer, he may plead the matter necessary to show 
 that he has no interest {a), if the case is not such 
 that by a general disclaimer he can satisfy the 
 suit(i). Thus, where a witness to a will was 277 
 
 made a defendant to a bill brought by the heir at 
 law to discover the circumstances attending the 
 execution, and the bill contained a charge of pre- 
 tence of interest by the defendant, though a de- 
 murrer for want of interest was overruled because 
 it admitted the truth of the charge to the contrary 
 in the bill, yet the court declared an opinion that a 
 defence might have been made by a plea (6-). 
 
 IX. Though the subject of a suit may be within 
 
 (y) Gary Rep. 61 ; Prac. Reg. 327, p. 294, note. 
 
 Wy. Ed ; Att. Gen. v. Lord Hotham, (a) Plummer v. May, 1 VeB. 426. 
 
 1 Turn. R. 209. See below, Chap. (6) See the case of Turner v. 
 
 II. sect. 2, part 3. Robinson, 1 Sim. & Stu. 3. 
 
 (z) 1 Ves. Jun. 292, and see ibid. (c) Plummer v. May, 1 Ves. 426. 
 
 (1) Where a creditor of a testator files a bill stating that the defen- piea that the de- 
 dant is the executor, and had proved the will, and that he sets up a vol- ex°ciUor. *** 
 untary assignment made by the testator to him ; and charging that 
 
 whether he has proved the will or n;'t, he has taken possession of the 
 personal estate, and is accountable fnr the same ; and praying that the 
 deed may be declared to be void, and that an account may be taken of 
 the personal estate come to the handpi of the defendant; a plea that 
 the defendant is not executor is a goid plea to the whole bill, llill v. 
 Neale, 6 Law J. (O. S.) 144, V. C. 
 
 (2) A plea of a defective title by a vendor to a bill filed" by a pur- uo^by Vvondo'r 
 chaser fur a Fpecific performauce is bad. Thomas v, Derin>r, 4 Law J- 
 
 (N. S.) 149, ^]. U.
 
 277 PLEAS. [Chap. II. 
 [236] the jurisdiction of a court of equity, and the court 
 
 IX. Want ol title r i i .1 ••!•.• 
 
 to the relief 01 chanccry may have the proper jurisdiction ; 
 though the plaintiff may be under no personal dis- 
 ability, and may be the person he pretends to be, 
 and have a claim of interest in the subject, and a 
 right to call on the defendant concerning it, and 
 the defendant maybe the person he is stated to be, 
 and may claim an interest in the subject which 
 may make him liable to the plaintiff's demands, 
 with respect to which circumstances pleas have 
 been already considered, still the plaintiff, by reason 
 of some additional circumstance, may not be enti- 
 tled in the whole or in part to the relief or assist- 
 ance which he prays by his bill. The objections 
 which may be made to the whole or any part of a 
 suit, though liable to none of the objections before 
 considered, are principally the subject of those 
 kinds of pleas which are commonly termed pleas 
 
 Division of pleas in bar; and which are usually ranked under the 
 
 278 heads of pleas of matter recorded, or as of record, 
 in the court itself, or some other court of equity; 
 pleas of matters of record, or matters in the nature 
 of matters of record, in some court not a court of 
 equity : and pleas of matters in pais. 
 
 Pleas of matters Plcas in bar of matters recorded, or as of record, 
 
 recorded or as . , • 1 r» i n • 
 
 of record in the m tlic court itscli, Or somo other court oi equity, 
 
 court itself, or in . 
 
 'o^ of Equity, "^^y ^®' ^' ^ decree or order of the court by which 
 the rights of the parties have been determined (d) (1), 
 
 This must h&ve been a negative plea. 550 ; Turner v. Robinson, 1 Sim. 3c- 
 
 And see Cartwright v. Hately, 3 Stu. 3. 
 
 Bro. C. C. 238 ; S. C. 1 Ves. Jun. {d) 3 Atk. 626. 
 
 292 ; 7 Ves. 289, 290 ; 1 Ves. & Bea. 
 
 (1) [See the form of a plea of a decree, Willis, 629.] The settled 
 law of all courts is, that as a general rule, a fact that has been directly 
 tried and decided by a court of competent jurisdiction cannot be con- 
 tested again between the same parties in the same or any other court.
 
 S. II. p. II.] PLEAS. 278 
 
 or another bill for the same cause dismissed (e) (1) ; 
 
 2. Another suit depending in the court, or in some 
 
 other court of equity, between the same parties for [237] 
 the same cause ( f ) (3). Pleas of this nature 
 
 (e) Pritman v. Pritman, 1 Veru. (/) Foster v. Vassall,Z Atk. 587. 
 310; 1 Atk. 571. 
 
 Hence a verdict or judgment of a rourt of record or a decree in chan- 
 cery, although not binding on strangers, puts an end to all further con- 
 troversy concerning the points thus decided, between the parties to 
 such suit. In this there is and ought to be no difference between a 
 verdict and judgment in a court of common law and decree in equity. 
 They both stand on the same footing. Bank of U. S. v. Beverley, 1 
 Howard's R. 148-9, 134. A prior decree must be pleaded or relied on 
 and set forth in answer, showing the same points in issue, or that the 
 rights now set up have been conclusively determined, and hence in 
 support of a plea of former decree it is necessary to set forth so much 
 of the fir^t bill and answer as will show the same point was then in 
 iseue. Lockwood et al. v. Wildman et al„ 13 Ohio R. 450-1, 430. 
 
 The doctrine in Aspden v. Nixon, 4 Howard, 467, 4'j7, is, that the 
 decree or judgment must have been, 1. by a court of competent juris- 
 diction upon the same subject matter ; 2. between the same parties ; 
 
 3. for the same purpose. 
 
 In Matthews v. Roberts, 1 Green's C. R. 340-1, 338, held, that a for- 
 mer decree need not appear as between the same parties if for the 
 same subject matter. But if not for the same subject matter one can 
 be no bar to the other. But if the defendant has a substantial defence, 
 which cannot avail him from the inaccurate manner in which his plea 
 is drawn, he may claim the full benefit of it by an^iwer, and on overru- 
 ling the plea with costs, time will be allowfed to answer. Ibid. 
 
 (1) The judicial power is incompetent to revise the evidence on 
 which tire decree [of dismission] was rendered, on any ground other 
 than that set up in the answer, or apparent on the present record, and 
 they must be taken to be (as now set up in answer, or apparent on the 
 present record) beyond all controversy in this or any future case between 
 the parties. Bank of U. S. v. Beverly, 1 Howard's R. 148-9, 134. 
 
 (2) [Saunders v. Frost, 5 Pickering's R. 276, See the form of such 
 a plea, Willis, 634.] See p. 287, ni/ra. 
 
 But if the judgment of a court of competent jurisdiction is reversed, 
 the party is not precluded from a new action. The mere reversal of a 
 decree has not the legal efficacy of a subsisting decree on the merits. 
 A reversal with few exceptions affirms nothing but its own correctness. 
 It simply nullifies the former judgment or decree. It decides nothing 
 upon the rights of parties, but confines itself to the adjudication that 
 what has been done shall have no legal effect. Thus where the decree
 
 278 PLEAS. [Chap. IL 
 
 generally go both to the discovery sought and the 
 relief prayed by the bill. 
 ereJ^Bi^edand A decree (1), determining the rights of the par- 
 ties, and signed and enrolled, may be pleaded to 
 a new bill for the same matter ( g), and this even 
 if the party bringing the new bill was an infant at 
 the time of the former decree (A) : for a decree en- 
 rolled can only be altered upon a bill of review (i). 
 But the decree must be in its nature final, or after- 
 
 279 wards made so by order, or it will not be a 
 bar (k) (2). Therefore a decree for an account of 
 principal and interest due on a mortgage, and for 
 a foreclosure in case of non-payment, cannot b^ 
 pleaded to a bill to redeem unless there is a final 
 order of foreclosure (I) ; nor can a decree which has 
 
 (g-) Rutland v. Brett, Finch R. (,f) 3 Atk. 627. See above, p. 
 
 124; Mallock v. Gallon, Dick. 65. 101, et seq. 
 
 (A) 1 Alk. 631; Gregory v. Moles- (k) See page 280, notes (o) and 
 
 worth, 3 Atk. 626-; 3 Ves. 317. (p). 
 
 f (l) Senkouae V. Earl, 2 Wes. 450. 
 
 of the Supreme Court of pobate in Maeeachusetts reversed that of 
 the inferior court decreeing distribution, such reversal was held no bar 
 to a subsequent suit by the parties claiming as heirs or legal represf^n- 
 tatives. A fortiori, it was no bar to a bill in equity. Harvey v. Rich- 
 ards, 2 Gall. 216, 229, 230. 
 Plea of a former (^) ^ P^®^ *^ * creditor's bill, of a decree obtained by other creditors 
 •■it in a former suit will oe overruled, where that decree is less beneficial 
 
 to the plaintiffs in the" second suit than the decree they might obtain in 
 Buch second suit. Pickford v. Hunter, 6 Sim. 122. 
 
 *(2) [Although a decree cannot be pleaded in bar if it is not enrolled, 
 yet, in such a case, it may be insisted on by way of answer. Ddvoue 
 V. Fanning, 4 J. C. R. 199. It will not ha allowed on the hearing, 
 unless set up in the answer, or (if enrolled) pleaded. Lyon v. Tall' 
 madge, on appeal, 14 J. R. 601.] In New-York the enrolled decree 
 must be signed by tie chancellor or vice-chancell r, and also by the 
 register or clerk, before it can be filed so as to authorize the issuing of 
 an execution thereon ; and it i^ irregular to file it without such bigna- 
 tures. Bank of Rochester v. Emerson, 10 Paige's Ch, R. 359. 
 
 Where the decree gives all t' e consequential directions, so as finally 
 to dispose of the whole case upon the coming in and confirmation of the
 
 S. II. p. II.] PLEAS. 279 
 
 been made upon default of the defendant in not 
 appearing at the hearing be pleaded without an 
 order making the decree absolute ; the terms of 
 such a decree being always that it shall be binding 
 on the defendant, unless, on being served with a 
 writ of subpoena for the purpose, he shall show 
 cause to the contrary (?//). Upon a plea of this 
 nature so much of the former bill and answer must 
 be set forth as is necessary to show that the same [238] 
 point was then in issue (n). A decree of order dis- 
 missing a former bill for the same matter may be 
 pleaded in bar to a new bill (o) (1) if the dismis- 
 sion was upon hearing, and was not in terms direct- 
 ed to be without prejudice (/?). But an order of 
 dismission is a bar only where the court determined 280 
 
 that the plaintiff had no title to the relief sought 
 by his bill; and therefore an order dismissing a 
 bill for want of prosecution is not a bar to another 
 bill (q). And a decree cannot be pleaded in bar 
 
 (»/)) Ord. in Clia. 198; Ed. Bea. Peterborough v. Germaiiie, 6 Bro. 
 
 And see Halsey v. Stnith.Moa. 186 ; P. C. 1, Toml. Ed. 
 Venemore v. Venemore, Dick. 93. (p) Seymour v. Nositorthy, 1 Ca. 
 
 (n) ^hild V. Gibson, 2 Atk. 603. in Cha. 155 ; Toth. 50. [S. P. Pe- 
 
 But see 1 Vern. 310. rine v. Dunn, 4 J. C. R. 140 ; Holmes 
 
 (o) Prilman v. Pritmnn, 1 Vern. v. Remsen, 7 lb. 286.] 
 310; Madge v. Brett, Finch. R. 46; (q) Brandlyn v. Ord, 1 Atk. 571; 
 
 Conneil v. Warren, rb. 239 ; Earl of 14 Ves. 232. 
 
 master's report, by a common order in the register's office, without the 
 neces.sity of bringing the case again before the court for any further 
 decree or direction, it is a final and not an interlocutory decree ; 
 although further proceedings must be had in the master's office to carry 
 tlie decree of the court into effect. Quackenbush v. Leonard, 10 
 Paige's Ch. R. 131. 
 
 [Lijon V. Tallmadge, on appeal, 14 J. R. 601.] 
 
 (1 j Where a demurrer by one of tlie assignees of a bankrupt to a pica by one a»- 
 bill a-:ainst the assignees for a general account of their dealings under f's^*^" "^ V'^j*'' 
 the bankruptcy has been allowed, it may be pleaded by the other assig- murrer by ano- 
 nee in bar of the suit. Tarleton v. Hornby, 1 Y. &. C. Eq. Ex. 333. 
 
 [It must be an absolute decision upon the same point or matter, and
 
 [239] 
 
 280 PLEAS. [Chap. IL 
 
 of a new bill unless it is conclusive (o) of rights of 
 the plaintiffs in that bill, or of those under whom 
 they claim ( p). Therefore a decree against a mort- 
 gagor, and order of foreclosure enrolled, were not 
 deemed a bar to a bill by intervening incumbrancers 
 to redeem, although the mortgagee had no notice 
 of those incumbrances; and the mortgagee having 
 been long in possession, the account taken in the 
 former cause was not deemed conclusive against 
 the plaintiffs in the new bill, though under the cir- 
 cumstances the court, on overruling the plea and 
 ordering the defendant to answer, limited the order 
 by directing that the defendant should answer to 
 charges of errors or omissions, but that the plain- 
 tiffs should not unravel the account at large before 
 the hearing (q)- . 
 
 A decree must be signed and enrolled, or it can- 
 not be pleaded in bar of a suit (r), though it may 
 be insisted upon by way of answer (s). But though 
 go-i it cannot be pleaded directly in bar of the suit for 
 
 want of enrolment, it may perhaps be pleaded, to 
 show that the bill was exhibited contrary to the 
 usual course of the court, and ought not therefore 
 to be proceeded upon (t). For if the decree ap- 
 
 (o) See Coysgarne V. Jones, Amh\. 1710, in Ch. reported 2 Vern. 663. 
 
 613; Collins v.Gough,-iGw\\n.C. (r) Anon. 3 Atk. 809; Kinsey v. 
 
 1294. Kinsey, 2 Vee. 577. 4 J. C. R. 199. 
 
 (/)) See Doyly v. Smith, 2 Ca. (s) 2 Ves. 577. And see Charles v. 
 
 in Ch. 119 ; Godfrey v. Chadwell, 2 Rowley, 2 Bro. P. C. 485, Toml. Ed. 
 
 Vern. 601; Atkinson v. Turner, 3 Lyon v. Talmadge, 14 John. R. 501. 
 
 Barnard, 74. (0 See 2 Ves. 577, note ; Chan> 
 
 (5) Morrett v. Western, 15 July, Pleas, 89. 
 
 the new bill must be brought by the same complainant who filed the 
 original bill or his representatives, against the same defendant and his 
 representatives. If the defendant in the original suit, having since 
 acquired a legal estate or legal advantage, files his bill against the for- 
 mer complainant, the cause is open on its merits. Neajie v. Neajie, 7 
 J,C. R. 1]
 
 S. II. p. II.] PLEAS. 281 
 
 peared upon the face of the bill, the defendant 
 might demur (u), a decree not signed and enrol- 
 led being to be altered only upon a re-hearing (x), 
 as a decree signed and enrolled can be altered , ^vhctherm. 
 
 O plea to a bill to 
 
 only upon a bill of review (?/). '^^rt l.ti. 
 
 If a bill is brought to impeach a decree on the ativi"gThefr°au^d 
 ground of fraud used in obtaining it, which, as has 
 been observed (z), may be done without the pre- 
 vious leave of the court, the decree may be pleaded 
 in bar of the suit, with averments, negativing the 
 charges of fraud, supported by an answer fully de- [240] 
 nying them (a). Whether averments negativing 
 the charges of fraud are necessary to a plea of this 
 description appears to have been a question much 
 agitated in recent cases (&) ; upon which it may be 
 observed, that without such averments, if the decree 
 
 (u) Worthy v. Birkhead, 3 Atk. the cases of Sidney v. Perry, Park- 
 
 809 ; S. C. 2 Ves. 571 ; Lady Gran- inson v. Lecrds, Meadows v. Duch- 
 
 ville V. Ramaden, Bunbury, 56. ess of Kingston, and Deciev. Ckes- 
 
 (x) 2 Ves. 598. See above, pp. fer, mentioned in pages 289, 297, 300, 
 
 108, 109. 306, 321. And see 6 Ves. 59(; ; 2 Scli. 
 
 (y) Read v. Hambey, 1 €a. in Cha. &- Lefr. 727 ; 5 Madd. 330 ; 6 Madd. 
 
 44 ; S. C. 2 Fieem. 179. See above, 64 (I). 
 p. 278 note (A)- (6) Pope v. Bish, 1 Anstr. Exch. 
 
 (2) Pages 112, 113. R. 69; Edmundson v. Hartley, ib. 
 
 (a) Wzc/iuise V. SAorf, 3 Bro. P. C(. 97. And see Bayley v. Adams, 6 
 
 558, Toml. Ed. ; S. C. 2 Eq. Ca. Ves. Jun. 586. In the cases in the 
 
 Abr. 177, and 7 Vin. Abr. 398, pi. court of exchequer it seems to have 
 
 15 ; 3 P. Wms. 95 ; Gilb. For. Rom. been supposed that the answer in sup- 
 
 58 ; Treatise on Frauds, c. 18, p. port of the plea overruled the plea. 
 
 220 ; J?w<c/(frv. Co/e, at the Rolls, 26 But an answer can only overrule a 
 
 June, 1786, cited 1 Anstr. 99. See plea where it applies to matter which 
 
 (1) [Allen V. Randolph, 4 J. C. R. 693, Where a bill -charped mis- 
 representation, Coercion and fraud in procuring the release of a debt, 
 and the defendant put in a plea and answer; and in Jiia plea insisted 
 on the release in bar, without noticini; the allegation of fraud, though 
 in the answer it was fully met and denied : — Held, that the plea was 
 bad. Allen V. Randolph, sujra.]
 
 282 PLEAS. [Chap. II. 
 
 were admitted by the bill, nothing would be put 
 in issue by the plea. The question in the cause 
 must be, not whether, such a decree had been 
 made, but whether, such a decree having been 
 made, it ought to operate to bar the plaintiff's 
 demand. To avoid its operation the bill must al- 
 lege fraud in obtaining it ; and to sustain it as a 
 bar the fact of fraud must be denied and put in 
 issue by the plea. For upon the question, whether 
 the decree ought to operate as a bar, the fact of 
 fraud is the only point upon which issue can be 
 joined between the parties ; and unless the plea 
 covers the fact of fraud, it does not meet the case 
 made by the bill ; and on argument of the plea, the 
 charge of fraud, not being denied by the plea, must 
 be taken to be true. If the bill states the decree 
 [241] only as a pretence of the defendant, which it avoids 
 by stating, that if any such decree had been made 
 * it had been obtained by fraud, the decree must be 
 
 pleaded, because the fact of the decree is not ad- 
 
 the defendant by his plea declines to ought to be compelled to answer so 
 
 answer (1); demanding the judg- much of the bill. Sae Arnold's case, 
 
 ment of the court, whether by reason Gilb. For. Rom. 59 (2). 
 of the matter stated in the plea he 
 
 (1) By the 37th order of Aug. 1841, " No plea shall be held bad and 
 overruled upon argument only because the answer of the defendant 
 may extend to some part of the same matter as may be covered by 
 such plea." 
 
 (2) \_BoUon V. Gardner, 3 Paige's C. R. 273. The only exception 
 to tliis rule, is the case where the answer is necessary to support the 
 plea, as where the bill charges circumstances calculated to avoid the 
 anticipated bar of the defendant. There, it is proper, not only that the 
 plea should contain all necessary averments to remove those circum- 
 stances out of the way, but the defendant must support the plea by 
 an answer also denying the circumstances. Ferguson v. O^IIara, I 
 Peters' C. C. R. 493.]
 
 283 
 
 S. II. P. II.] PLEAS. 282 
 
 mitted by the bill ; and the charge of fraud must 
 also be denied by the plea for the reasons before 
 stated. If the bill states the decree absolutely, but 
 charges fraud to impeach it, yet the decree must 
 be pleaded, because the decree if not avoidable is 
 alone the bar to the suit ; and the fraud by which 
 the bar is sought to be avoided must be met by 
 negative averments in the plea, because without 
 such averments the plea would admit the decree 
 to have been obtained by fraud, and would there- 
 fore admit that it formed no bar. When issue is 
 joined upon such a plea, if the decree is admitted 
 by the bill, the only subject upon which evidence 
 can be given is the fact of fraud. If that should 
 be proved, it would open the plea on the hearing 
 of the cause ; and the defendant would then be put 
 to answer generally, and to make defence to the bill 
 as if no such decree had been made. The object 
 of the plea is to prevent the necessity of entering 
 into that defence by trying first the validity of the 
 decree. If the evidence of fraud should fail, the 
 decree, operating as a bar, would determine the 
 suit as far as the operation of the decree would 
 extend. 
 
 It has also been objected, that a plea of the de- 
 cree is a plea of the matter impeached by the bill ; 
 but the frame of a bill in equity necessarily produ- 
 ces, in various instances, this mode of pleading (c). [242] 
 If the bill stated the title under which/hc plaintiff 
 claimed, without stating the decree by which it had 
 
 (c) See 3 P. Wins. 317, where objected to this mode of pleading, 
 Lord Chancellor Talbot is stated to observing that it was every day's 
 have interrupted the counse], who practice. 
 
 24
 
 888 PLEAS. [Chap. 11. 
 
 been affected, the defendant might have pleaded 
 the decree alone in bar. If the bill stated the 
 284 plaintiff's title, and also stated the decree, and al- 
 
 leged no fact to impeach it, and yet sought relief 
 founded on the title concluded by it, the defendant 
 might demur ; because upon the face of the bill 
 the title of the plaintiff would appear to be so con- 
 cluded. But as in" the form of pleading in equity 
 the bill may state the title of the plaintiff, and at 
 the same time state the decree by which, if not im- 
 peached, that title would be concluded, and then 
 avoid the operation 6C the decree by alleging that 
 it had been obtained by fraud ; if the defendant 
 could not take the judgment of the court upon the 
 conclusiveness of the decree by plea upon which 
 the matter by which that decree was impeached 
 would alone be in issue, he must enter into the same 
 defence (by evidence as well as by answer) as if 
 no decree had been made ; and would be involved 
 in all the expense and vexation of a second litiga- 
 tion on the subject of a former suit, which the de- 
 cree, if unimpeached, had concluded. It is there- 
 fore permitted to him to avoid entering into the 
 general question of the plaintiff's title as not affected 
 by the decree, by meeting the case made by the 
 [243] plaintiff, which can alone give him a right to call 
 for that defence, namely, the fact of fraud in ob- 
 taining the decree. This has been permitted to be 
 done in the only way in which it can be done, by 
 pleading the decree with averments denying the 
 fraud alleged ; and those averments being the only 
 matter in issue, they are necessarily of the very 
 substance of the plea. The decree if obtained by 
 fraud would be no bar ; and nothing can be in issue
 
 S. 11. p. II.] PLEAS. 284 
 
 on a plea but that which is contained in the plea ; 285 
 
 and every charge in the bill not negatived by the 
 plea is taken to be true on argument of the plea. 
 If therefore the decree merely were pleaded, on 
 argument of the plea, the charge of fraud must be 
 taken to be true, and the plea ought therefore to 
 be overruled ; but if on argument the plea were al- 
 lowed, or if the plaintiff, without arguing, replied 
 to the plea, no evidence could be given on the 
 charges of fraud to avoid the plea, and the defend- 
 ant proving his plea (d), that is, proving the decree 
 and nothing more, would be entitled to have the 
 bill dismissed at the hearing (e). 
 
 As the averments negativing the charges of fraud [244] 
 are used merely to put the fact of fraud, as alleged Kve^e^^ti!* 
 by the bill, in issue on the plea, they may be ex- 
 pressed in the most general terms, provided they 
 are sufficient to put the charges of fraud contained 
 in the bill fully in issue. And as the plaintiff is en- "^^Tof'the uS! 
 titled to have the answer of the defendant upon ^'^ 
 oath to any matter in dispute between them, in aid 
 
 (d) Sir Joseph Jekyll, M. R. 3 P. decree ; if the defendant pleaded a 
 Wms. 95. decree binding the right, the plaintiff 
 
 (e) Perhaps all the difficulties might liave rephed, that the decree 
 which have arisen upon this subject had been obtained by fraud, by which 
 have proceeded from want of atten- the plaintiff would have admitted 
 tion to the form of pleadings in courts that the decree was a bar, if not ca- 
 of equity, especially since the disuse pable of impeachment on the ground 
 of special replications, rejoinders, sur- of fraud ; the defendant by rejoinder 
 rejoinders, &c. When those plead- would have avoided the charge of 
 ings were allowed, the plaintiff might fraud, and sustained Iho decree ; and 
 have stated his case, without suggest- then the issue would havo been sim- 
 ing that it had been affected by any ply on the fact of fraud. 
 
 (1) When complainant states a variety of matters wliich, if admit- 
 ted as true, would be evidence to counterprove the allegations in the 
 plea, (as in this case allegations of an adverse entry under claim of 
 title and of an adverse holding} it becomes necessary to negative those
 
 285 PLEAS. [Chap. II. 
 
 of proof of the case made by the bill, the defend- 
 ant must answer to the facts of fraud alleged in the 
 
 286 bill so fully as to leave no doubt in the mind of the 
 court that upon that answer, if not controverted by 
 evidence on the part of the plaintiff, the fact of 
 fraud could not be established (/). If the answer 
 should not be full in all material points, the court 
 may presume that the fact of fraud may be capable 
 of proof in the point not fully answered, and may 
 therefore not deem the answer sufficient to sup- 
 port the V plea as conclusive, and therefore may 
 overrule the plea absolutely, or only as an imme- 
 diate bar, saving the benefit of it to the hearing of 
 the cause. But though the answer may be deemed 
 sufficient to support the plea upon argument, the 
 plaintiff may except to the answer, if he conceives 
 it not to be so full to all the charges as to be free 
 
 [245] from exception; or by amending his bill may re- 
 quire an answer to any -matter which may not have 
 been so extensively stated or interrogated to as 
 
 (/) It seems to have been ima- part of the defence, but that evidence 
 
 gined that there was something incon- which the plaintiff has a right to re- 
 
 gruous in a plea, and answer in sup- quire, and to use to invalidate the 
 
 port of the plea, 6 Ves. 597. But defence made by the plea, upon argu- 
 
 this objection seems to have arisen ment of the plea, before other evi- 
 
 from a supposition that the answer deuce can be given, 
 formed part of the defence. It is no 
 
 matters by general averments in the plea, and to support the plea by 
 answer as to such matters. The plea is not then double, (see hifra 
 p. 245, note.) Bogardus v. Trinity Church, 4 Paige's R. 195, 178. 
 
 The only way to test the sufficiency of an answer in support of a 
 plea where it is objected that the plea is not sufficiently supported, ia 
 to consider every allegation in the bill as true which is not sufficiently 
 denied by the answer; and then to inquire whether those facts being 
 admitted, the plea Is a sufficient bar to the claim of the complainant 
 for relief. Such objection therefore necessarily connects itself with 
 the merits of the defence set up in the plea and must be examined in 
 that connection. Zdewi 197, 178.
 
 S. II. p. II.] PLEAS. 286 
 
 the case would warrant, or to which he may appre- 
 hend that the answer, though full in terms, may 
 have been in effect evasive. 
 
 As the bill must be founded on the supposition ,Jff"» °f *« 
 that the plaintiff's title is not concluded by the 
 decree, and the plea on the contrary supposition, 
 the effect of the plea is, to conclude the whole case 
 made by the bill, so far as it may be concluded by 
 the decree, except the question of fraud ; and con- 287 
 
 sequently all the questions which might have been 
 raised, if the decree had not been made, are put 
 by the plea, if allowed, wholly out of the cause, 
 unless the plea should be shown to be false in fact 
 by evidence given on the issue taken upon it, and 
 the matter of the plea thus opened upon the hear- 
 ing. It is therefore a mistake to suppose that the 
 plea, if sustained, would not shorten the cause, or 
 lessen expense (g) (1). 
 
 As the ground of this defence by plea of a de- Decree of my 
 
 11 1 11111 peculiar court of 
 
 cree is that the matter has been already decided, <^i"'»y 
 a decree of any court of equity, in its nature final 
 or made so by subsequent order, may be pleaded 
 in bar of a new siiit (h). 
 
 (g) The argument wliich is con- tablegrounds, with reference to which 
 
 tained in the few preceding pages of they have been respectively deter- 
 
 the text, and the notes theretot has mined. See, however, here, 2 Ves. 
 
 been adopted and established by de- «fc B. 364 ; 6 Madd. 64, and 2 Sim. 
 
 cided cases ; but these not relating to & Stu. 279. 
 
 decrees, they will be adduced hero- {^h) Geale v. Wyntnur, Buub. 211 ; 
 
 after in illustration of the doctriues Wing\. Wing, 10 Mod. 102; Anon. 
 
 relating to the several pleas or legal Mos. 268 ; Pritmnn v. Piitmnn, 1 
 
 bars sought to be set eiside upon eqni- Veru. 310; Fitzgerald v. Fitzger- 
 
 (1) A former decree pleaded in bar need not appear to have been 
 between precisely the same parties with the one to which it is pleaded, • 
 but it must always appear to have been for the same subjfct matter. 
 Mathews v. Roberts, 1 Green's Ch. R. 338.
 
 287 PLEAS. [Chap. II. 
 
 [246] 2. Another suit depending in the same or another 
 
 Plea of another j c • , f .i / •\ /t \ ' J. 
 
 euit depending, court oi cquity lor the same cause (z) (1) is a gooa 
 plea (k) (2) ; except, perhaps, in the case of a suit 
 
 aid, 5 Bro. P. C. 567, Toml. Ed.; (i) Ord. in Cha. Ed. Bea.26, 176; 
 but, as to the authority of this par- Cro/<s v. W^ortZey, 1 Ca. in Cha. 241 ; 
 ticiilar case, except in principle, see Foster v. Vassall, 3 Atk. 587 ; Bell 
 Stat. 2.3 Geo. III. c. 28, and stat. 39 v. Read, ibid. 590 ; Murray v. Shad- 
 Si, 40 Geo. III. c. 67, art. 8. See well, 17 Vee. 353. 
 aiso Pitcher v. Righy, 9 Pri. Ex. R. (k) It seems, that the pendency of 
 ^ 79. another suK for the same cause, in a 
 
 (1) [The mere pendency of a suit in a foreign court, or in a court 
 of the United States, cannot be pleaded in abatement or in bar to a 
 suit for the same cause in a state court. Mitchell \, Bunce, 2 Paige's 
 C. R. 606.} The court in Colt v. Pariridge,1 MetchU R. (Massa- 
 chusetts,) 574-6. 570, say that whether a plea in abatement, that 
 another action between the same parties and the same cause is pend- 
 ing in another state is good, is not decided m that state. In New- 
 York such plea has been held bad. Bowne v. Joy, 9 Johns. 221 ; 
 Walsh V. Durkin, 12 Johns. 99. The pendency of another action in 
 another state will not be a good plea, unless the judgment in such 
 action will be a bar to this. Newell v. Newton, 10 Pick. 470. The 
 plea in Colt v. Partridge, stated no case of an action by the present 
 plaintiff against the present defendant pending in the court of chan- 
 cery in the state of "Vermont. ' It seems to the court that if such plea 
 can be sustained when the parties stand in different relations, it can 
 only be so when the first suit affords a full, plain and adequate remedy 
 to the defendant in such suit, and opens all the grounds set up as the 
 foundation of the second suit. But further, the suit in Vermont was 
 by bill and the present at common law. The pendency of a bill in 
 equity has not usually been considered as a sufficient ground for sus- 
 taining a plea, in abatement to an action at law. When both suits 
 were by the same parly it furnishes occasion for motion, that party 
 elect which he will first proceed in. In these respects the plea in 
 abatement was regarded as insufficient and the demurrer sustained. 
 Ibid. Colt V. Partridge. 
 
 (2) [See the form of such a plea, Willis, 534 ; Beames on Pleas, 330 ; 
 Equity Draft. 117.] It is a rule of justice, applicable to all legal 
 proceedings, that no one shall be twice vexed for the same cause.' 
 The reason why a second suit cannot be commenced for the same 
 cause, pending a former is that it is unnecessary, inasmuch as the 
 party prosecuting may have the same remedy under the first, which 
 he could obtain by prosecuting another. Such was the doctrine in
 
 S. II. p. II.] PLEAS. 288 
 
 depending in an inferior court of equity, the effect 
 
 court of concurrent equity jurisdic- fact, as to the validity of the plea, 
 
 tion, cannot, before a decree has been and consequently a determination of 
 
 made in such other suit, be pleaded the question whether the plaintiff 
 
 in bar. See Houlditch v. Marquis of should or should not be allowed to 
 
 Donegall, 1 Sim. & Stu. 491 ; but, proceed in the suit in which the plea 
 
 that where the parties in both courts has been filed. Barnard, 85. And 
 
 are the same, it may be pleaded for see on this subject generally, Urlin 
 
 the purpose of obtaininor a reference v. , 1 Vern. 332; 1 Ves. 545; 
 
 to a master, to inquire whether the Daniel v. Mitchell, 3 Bro. C. C. 544 ; 
 
 suits are for the same matter, [and Anon. 1 Ves. Jun. 484; 2 Ves. & B. 
 
 see 14 J. R. 501,] see Murray v. 110; Jacksm v. Leaf, 1 Jac. & W. 
 
 Shadwell. 17 Ves. 353, and of get- 229. 
 ting a decision, upon his report of the 
 
 Massachusetts, on a libel filed by a husband for divorce, a mensa, &c., 
 for desertion under statute of that commonwealth. And pending that 
 libel, another statute authoriz ^d, for such cause, a libel for divorce a vin- 
 culo, &c. The pendency of the former suit was pleaded in abatement, 
 and on demurrer to that plea, the court deciding that the same right 
 did not exist in the two suits and therefore that the plea could not 
 prevaiL Stevens v. Stevens, 1 Metcalf R. 279. 
 
 A suit instituted by husband and wife agiinst the trustees of her riea of a former 
 separate property in respect of a fraud, cannot be pleaded in bar to a *'"'' 
 subsequent suit by her and her next friend against her trustees and 
 her husband and another person as parties to the fraud, although the 
 relief prayed in both suits is the same, for the first suit is considered as 
 the suit of the husband alone. Reeve v. Dalby, 2 S. &. S. 464. 
 
 In the" case of a plea of a former suit depending, where the former 
 suit is for relief in respect of legal and equitable waste, but no evidence 
 lias been entered into with regard to the equitable, waste, and tiie de- 
 cree makes no decision respecting it, and the latter suit is exclusively 
 for relief in respect of equitable waste, a plea of the former suit de- 
 pending is bad: for the purpose sought to be attained by tlie latter suit 
 cannot be attained by the former. Newdigate v. Newdigale^ 8 Law J. 
 (O. S.) Ch. R. 35. Complainant may dismiss his bill at any time be- 
 fore decree, upon payment of costs, and the court will upon proper ap- 
 plication grant the order to dismiss on costs, as of course. But the 
 cause is not out of court until the costs are actually paid or tendered > 
 and if a new bill be filed with )ut paying the costs pursuant to the con- 
 ditional order to dismiss upon payment of costs, defendant may plead 
 the pendency of the first suit as a bar to tiie commencement of the 
 second before the order to discontinue had become absolute, by the 
 payment of costs, on the pendency of former suit may be set up by 
 plea or answer. Simpson v. Brewster, 9 Paige's R. 24&-7. 245.
 
 288 PLEAS. [Chap. II. 
 
 of which the defendant has avoided by going out of 
 the jurisdiction of that court (/). The plea must 
 
 * aver that the second suit is for the same matter as 
 the first; and therefore a plea which did not ex- 
 pressly aver this, though it stated matter tending to 
 
 289 show it, was considered as bad in point of form, and 
 overruled upon argument (m). The plea must 
 also aver that there have been proceedings in the 
 
 [247] suit, as appearance, or process requiring appear- 
 ance at the least (n). It seems likewise regular to 
 aver that the suit is still depending (o) ; though as 
 a plea of this nature is not usually argued, but being 
 clearly a good plea if true, is referred to the exami- 
 nation and inquiry of one of the masters of the 
 court as to the fact (p), it has been held tliat a 
 positive averment that the former suit is depending 
 is not necessary (q) (1). And if the plaintiff sets 
 down the plea to be argued, he admits the truth of 
 the plea that a former suit for the same matter is 
 depending, and the plea must therefore be al- 
 lowed (r) unless it is defective in form (s). As the 
 
 (Z) See Morgan v. , 1 Atk. (o) 3 Atk. 589. 
 
 408. See also Foster v. Vassall, 3 (p) Ord. in Ch. Ed. Bea. 176, 177; 
 
 Atk. 587, and Lord Dillon v. Alva- 2 Ves. & Bea. 110. 
 
 res, 4 Ves. 357. (q) Urlin v. — -, 1 Vern. 332. 
 
 (m) Devie v. Lord Brownlow, in (r) 1 Vera. 332; Anon, 1 Ves. 
 
 Chan. 23d July, 1783, rep. Dick. 611. Jun. 484 ; Daniel v. Mitchell, 3 Bro. 
 
 {n)Anon.l Vern. 318: Mo»r v. O. C. 544. 
 
 Welsh Copper Comp. 1 Eq. Ca. Ab. (s) This is founded on a general 
 
 39. order of the court, that the plaintiff 
 
 Plea of proceed- (0 A plea of proceedings in another court must show not only that 
 
 '"mi"' ™°*''®'^ the subject-matter is the same, and the issue the same, but also that 
 
 the object is the same ; and that the court is a court of competent 
 
 * jurisdi6tion ; and that the result of the proceedings therein would be 
 conclusive, so as to bind every other court. Behrens v. Sievekiiig, 2 
 M. & C. 602. See supra p. 278 n.
 
 S. II. p. II.] PLEAS. 290 
 
 pendency of the former suit, unless admitted by the 
 plaintiff, is made the immediate subject of inquiry 
 by one of the masters, a plea of this kind is not 
 put in upon oath (^). 
 
 It is not necessary to the sufficiency of the plea [248] 
 that the former suit should be precisely between 
 the same parties as the latter. For if a man insti- 
 tutes a suit, and afterwards sells part of the pro- 
 perty in question to another, who files an original 
 bill touching the part so purchased by him, a plea 
 of the former suit depending touching the whole 
 property will hold (u). So where one part-owner 
 of a ship filed a bill against the husband for an 
 account, and afterwards the same part-owner and 
 the rest of the owners filed a bill for the same pur- 
 pose, the pendency of the first suit was held a good 
 plea to the last (x) ; for though the first bill was in- 
 sufficient for want of parties, yet by the second bill 
 the defendant was doubly vexed for the same cause. 
 The course which the court has taken where the se- 
 cond bill has appeared to embrace the whole subject 
 in dispute more completely than the first, has been 
 to dismiss the first bill with costs, and to direct the 
 
 shall not be put to argue such a plea, defects in the form of such a plea. 
 
 but may obtain, in the first instance, (t) 1 Vern. 332. This however 
 
 an order of reference to a master to can scarcely be deemed to extend to 
 
 inquire into the truth of it. Ord. in a case of a suit depending in a foreign 
 
 Cha. Ed. Bea. 176, 177; Baker v. court. And see Forster v. Vassall , 
 
 Bird, 2 Ves. Jun. 672 ; Murray v. 3 Atk. 587. 
 
 Shadwell, 17 Ves. 353 ; 2 Ves. &. (u) Moor v. Welsh Copper Comp. 
 
 Bea. 110; Carwick v. Young, 2 1 Eq. Ca. Ab. 39. 
 
 Swanst. 239 ; Carrick v. Young, 4 (x) Durand v. Hutchinson, Mich- 
 
 Madd. 437. See 3 Atk. 589, as to 1771, in Chan. (1)' 
 
 (1) [See form of the plea which was used in this case, in Beamea' 
 Pleas, 336.]
 
 291 
 
 ^290 PLEAS. [Chap. II. 
 
 defendant in the second cause to answer upon 
 being paid the costs of a plea allowed {y), which 
 puts the case on the second bill in the same situa- 
 tion as it would have been in if the first bill had 
 been dismissed before fiHng the second. Where 
 a second bill is brought by the same person for the 
 same purpose, but in a different right, as where 
 the executor of an administrator brought a bill, 
 conceiving himself to be the personal representative 
 of the intestate, and afterwards procured admin- 
 [249] istration de bonis non, and brought another bill (z), 
 the pendency of the former bill is not a good plea. 
 The reason of this determination seems to have 
 been, that the first bill being wholly irregular the 
 plaintiff could have no benefit from it, and it might 
 have been dismissed upon demurrer. Where a 
 decree is made upon a bill brought by a creditor 
 on behalf of himself and all other creditors of the 
 same person, and another creditor comes in before 
 the master to take the benefit of the decree, and 
 proves his debt, and then files a bill on behalf of 
 himself and the other creditors, the defendants 
 may plead the pendency of the former suit ; for 
 a man coming under a decree is quasi a party (a). 
 The proper way for a creditor in such a situation 
 to proceed, if the plaintiff in the original suit is 
 dilatory, is by application to the court for liberty to 
 conduct the cause (b). 
 
 (y) Crofts V. Wortley, 1 Ca. in (a) Neve v. Weston, 3 Atk. 557 ; 
 
 Cha. 241. 1 Sim. & Stu.36 1.(1) 
 
 {z) Muggins V.York Build. Comp. (jb) See Powell v. Walicorth, 2 
 
 2 Atk. 44. Madd. R. 183 ; Sims v. Ridge, 3 
 
 (1) [Also Edmunds v. Acland, 5 Mad. 31]
 
 S. II. p. II.] 
 
 PLEAS. 
 
 291 
 
 If a plaintiff suies a defendant at the same time ia1^a1fdto?q,5! 
 for the same cause at common law and in equity, ^' 
 the defendant after answer put in (c) may apply to 
 the court that the plaintiff may make his election (2) 292 
 
 where he will proceed (d), but cannot plead the 
 pendency of the suit at common law in bar of the 
 suit in equity (c), though the practice was formerly 
 otherwise (/). If the plaintiff shall elect to proceed [250] 
 in equity, the court will restrain his proceedings at 
 law by injunction, and if he shall elect to proceed 
 
 Meriv. 458 ; Edmunds v. Acland, 5 
 Madd. 31; Fleming v. Prior, 5 
 Madd. 42?; Handford v. .Stone, 2 
 Sim & Stu. 196. (1) 
 
 (c) 3 P. Wms. 90 ; 1 Ball & B. 
 119, 319; Fisher v. Mee, 3 Meriv. 
 45 ; HoguA V. Curtis, 1 Jac & W. 
 449 ; Browne v. Poyntz, 3 Madd. 
 24 ; Coupland v. Bradock, 5 Madd. 
 14. 
 
 (d) 3 P. Wms. 90 ; Anon. 1 Ves. 
 Jun. 91 ; 1 Bail & B. 320; Pieters 
 V. Thompson, Coop. R. 294 (3). But 
 there is a distinction iu the practice 
 where tiie court is unable at once to 
 see that it is a case of election. See 
 Boyd V. Heinzelman,' 1 Ves. & B. 
 381 ; 2 Ves. & B. 110; Millsy. Fry, 
 
 3 Ves. &B. 9, (1814); -^ — v. , 
 
 2 Madd. R. 395 ; Amory v. Brodrick, 
 I Jac. R. 530, and the cases therein 
 cited. In tlie instance of a mortga- 
 
 gee taking the usual bond for re-pay- 
 ment of the mortgage-money, he is 
 not bound to elect, but may proceed, 
 under certain restrictions, upon his 
 separate securities at law and iu 
 equity. Schoole v. Sail, 1 Sch. &. 
 Lefr. 176. But where the plaintiff 
 sues in both jurisdictions in an indi- 
 vidual character, and can have in 
 the former only a part of the relief 
 which he can obtain in the latter ; by 
 instituting the suit in this court, he 
 concludes himself from proceeding at 
 law, and therefore of course is not 
 entitled to the privilege of election. 
 Mills V. Fry, 19 Ves. 277, (1815). 
 
 (c) 3 P. Wms. 90. And it should 
 seem the pendency of a suit in an 
 ecclesiastical court, for payment of 
 a legacy, could not be pleaded to a 
 bill for similar relief here. Howell 
 V. Waldron, 1 Ca. in Cha. 85. 
 
 (/) Ord. in Cha. Ed. Bea. 177. 
 
 (1) [And as to cases of creditors coming in under such a suit, see, 
 amongst others, Codwise v. Gelston, on appeal, 10 J. R. 507 ; M'Der- 
 mutt V. Strong, 4 J. C. R. 687 ; Wilder v. Keeler, 3 Paige'd C. R. 
 164.] 
 
 (1) On this subject, see 1 Headlam's Daniell's Ch. Pr. 791, et seq. 
 
 (2) [Livingston v. Kane, 3 J. C. R. 224 ; Sanger r. Wood, lb. 416 ; 
 Rogers v. Vosburgh, 4 ib. 84 ; Gibbs v. Perkinson, 4 Hen. &l Munf. 
 415.]
 
 PLEAS. [Chap. II. 
 
 at law the bill will be dismissed (g) (1). But if 
 S93 he should fail at law, this dismission of his bill will 
 
 be no bar to his bringing a new bill (A). 
 mlttetB o'f're-* Ploas iu bar of matters of record, or of matters 
 ters i*n the"na- lu the uaturo ofmattcrs of record, in some court not 
 
 tnre of matters . ^ • . ^ -i n n 
 
 «omTw^t'°of '^^^^S ^ court 01 equity, may be — 1, a fine ; 2, a re- 
 i»w. covery ; 3, a judgment at law, or sentence of some 
 
 other court. 
 wdiTorckim"^ 1- A plea of a fine and non-claim, (2) though a 
 [251] legal bar, yet is equally good in equity (i) (3), pro- 
 vided it is pleaded with proper averments (A;). 
 
 (i^) 3 P. VVms. 90, note ; Mousley Wa thins v. Stone, 2 Sim. & Stu. 560. 
 
 V. Basnett, 1 Ves. & B. 382, note ; (k) Story v. Lord Windsor, 2 Atk. 
 
 Fitzgerald v. Sutomb, 2 Atk. 85. 630 ; Hildyard v. Cressy, 3 Atk. 
 
 (h) Countess of Plymouth v. 303 ; Page v. Lever, 2 Ves. Jun. 
 
 Bladon, 2 Vera. 32. 450 ; Butler v. Every, 1 Ves. Jun. 
 
 (i) Thynne v. Townsend, W. 136 ; S.C.Z Bro. C. C. 80 ; Dohson 
 
 Jones, 416 ; Salisbury v. Baggot, 1 v. Leadbeater, 13 Ves. 230. The 
 
 Ca. in Cha. 278; 2 Swanst. 610; object of the averments is of course 
 
 (1) [Livingston v. Kane, 3 J. C. R. 224 ; Rogers v. Vosburgh, 4 ib. 
 84. Where the remedies at law and in equity are inconsistent, any 
 decisive act of the party, with knowledge of his rights and of the facts, 
 determines his election. Sanger v. Wood, 3 ib. 416.] Where a com- 
 plainant is proceeding in a suit in equity, and in an action at law for 
 the same subject matter, the defendant is not entitled to an order to 
 compel him to elect in which suit he will proceed, until such defend- 
 ant has fully answered the complainant's bill. Soule v. Corning, 11 
 Paige's Ch. R. 412. 
 
 (2) [See the form of a plea of a fine and non-claim, Willis, 537.] 
 
 aon-ciaim, in a (3) A fine and non-claim cannot be pleaded to a bill to prevent the 
 
 enit to prevent getting up of an outstandlnsf term. For the person in whom the legal 
 setting upofan=''^ = "^ ° 
 
 outstanding estate in a satisfied term is vested is a trustee for the real owner of 
 ""■ the estate ; and a court of equity will prevent the termor from setting 
 
 up the term, so as to prevent the trial at law of the question who is 
 the real owner of the estate. It will not take upon itself to decide that 
 question by deciding upon the operation of the fine and non-claim ; be- 
 cause if it should decide against the title by fine and non-claim, that 
 title might be again tired at law. Leigh v. Leigh, 1 Sim. 349. 
 Plea to a disco- And to a bill by a plaintiff claiming as heir-at-law, and seeking a 
 ^*H^" ^^^^ ^ discovery, and an injunction to restrain the setting up of an outstand- 
 ing term, a plea of a fine and conveyance in favor of the person under 
 whom the defendant claims is a good defence both to the discovery and 
 to the relief. Gait v. Osbaldeslon, 1 Russ. 168.
 
 S. II. p. II.] PLEAS. 295 
 
 Where a title is merely legal, though the defect is 
 apparent upon the face of the deeds, yet the fine 
 will be a bar in equity ; and a purchaser will not ^^^ 
 
 be affected with notice so as to make him a trustee 
 for the person who had the right. For a defect 
 upon the face of title-deeds is often the occasion 
 of a fine being levied (Q. And even a fine levied 
 upon bare possession, with non-claim, may be a bar 
 in equity, if a- legal bar, though with notice at the 
 time the fine was levied (m). But with respect to 
 equitable titles there is a distinction. For where 
 the equity charges the land only, the fine bars (w), 
 but where it charges the person only in respect of 
 the land (o), the fine does not bar (p). Therefore 
 if a man purchases from a trustee, and levies a fine, 
 he stands in the place of the seller, and is as much 
 a trustee as the seller was (r), provided he has 
 notice of the trust, or is a purchaser without con- 
 sideration (s). So if the' grantee of a mortgagee [252] 
 levies a fine, that will not discharge the equity of 
 redemption (t). But there are cases of equitable 
 as well as of* legal titles, in which a fine and non- 
 claim will bar, notwithstanding notice at the time 
 of levying the fines (u) It has been determined, 
 
 to show that it was an eQectual fine, (r) 2 Atk. 631 ; Kennedy v. Daly, 
 
 13 Ves. 233. ^ 1 Sch. & Lefr. 355. 
 
 (0 2 Atk. 631. ' (s) Gilb. For. Kom. 62; liovy v. 
 
 (7h) Brereton v. Gamul, 2 Atk. Sinith, 2 Ca. in Cha. 124; «■. C. 1 
 
 240. Vern. 60, and 1 Vern. 84 ; on rohear- 
 
 (n) Gifford v. Phillips, cited 2 ing see 1 Vern. 144, the decree was 
 
 Swanst. 612. reversed: but see 1 Sch. & Lefr. 379, 
 
 (o) Earl Kenoul v. Grevil, cited 380. 
 
 2 Swanst. 611 ; S. C. I Ca. in Cha. (t) 2 Atk. 631 ; Contra, 2 Freem. 
 
 295. 21, 69 ; but see 1 Sch. & Lefr. 378, 
 
 (p) 1 Ca. in Cha. 278; 2 Swanst. 380. 
 
 611 ; and see 2 Atk. 390; 1 Sch. & («) 2 Atk. 361 ; Hildyardv. Cres- 
 
 Lefr. 381. sey, 3 Atk. 303 ; Shields v. AtkitUi 
 
 3 Atk. 560.
 
 295 PLEAS. [Chap. IL 
 
 however, that if a fine is levied where the legal 
 estate is in trustees for an infant, and the trustees 
 neglect to claim, the infant, claiming by bill within 
 five years after he attains twenty-one, shall not be 
 barred (x). But perhaps this should be understood 
 as referring to the case of a fine levied with notice 
 of the title of the infant (?/). Where a title to lands 
 is merely equitable, as in the case of an agree- 
 ment to settle lands to particular uses^ claim to avoid 
 the fine must be hy suhpcena (z). The pendency 
 of a suit in equity will therefore in equity prevent 
 in many cases the running of a fine {a). Upon the 
 whole, wherever a person comes in by a title oppo- 
 site to the title to a trust estate (U), or comes in un- 
 der the title to the trust estate, for a valuable con- 
 sideration, without fraud, or notice of fraud or of 
 [253] the trust (c), a fine and non-claim may be set up as 
 a bar to the claim of a trust (d). When a fine and 
 non-claim are set up as a bar to a claim of a trust, 
 by a person claiming under the same title, it is not 
 suflScient to aver that at the time the fine was levied 
 the seller of the estate being seised, er pretending 
 to be seised, conveyed ; but it is necessary to aver 
 that the seller was actually seised. It is not, in- 
 deed, requisite to aver, that the seller was seised in 
 fee ; an averment that he was seised ut de lihero 
 tenemento, and being so seised a fine was levied, 
 
 (x) Allen V. Sayer, 2 Vern. 368. (a) 2 Atk. 389, 390 ; Pincke v. 
 
 (y) Wych v. E. I. Comp. 3 P. Thornycroft, 1 Bro. C. C. 289 ; S. C. 
 
 Wms. 309 ; Earl v. Countess of 4 Bro. P. C. 92, Toml. Ed. ; 1 Sch. 
 
 Huntington, ibid. 310, note G. & Lefr. 432. 
 
 (z) Salisbury v. Baggott, I Ca. (6) Stoughton v. OnsloiOj cited 2 
 
 in Cha. 278 ; S.C.2 Freem. 21, aud Swanst. 615 ; and 1 Freem. 311. 
 
 more accurately reported, from Lord (c) I Sch. & Lefr. 3S0. 
 
 Nottingham'sTWSS. 2 Swanst. 603. {d) Gilb. For. Rom. 63.
 
 3. Plea of • re- 
 covery. 
 
 S. II. p. II.] PLEAS. 296 
 
 will be sufficient (e). A fine and non-claim may 
 be pleaded in bar to a bill of review (/). 
 
 2. To a claim under an entail, a recovery duly 
 suffered, with the deed to lead the uses of that re- 
 covery, may be pleaded, if the estate limited to 
 the plaintiff, or under which he claims, is thereby 
 destroyed (g) (1). 
 
 3. If the judgment of a court of ordinary juris- judgi^en' of a 
 diction has finally determined the rights of the par- ry junfldTcaM*' 
 ties, the judgment may in general be pleaded in bar 
 
 of a bill in equity (/«). Thus where a bill was 
 brought by a person claiming to be son and heir ggy 
 
 of Joscelin, Earl of Leicester^ and alleged that the [254] 
 earl, being tenant in tail of estates, had suffered a 
 recovery, and had declared the use to himself and 
 a trustee in fee, and that the plaintiff had brought 
 
 ^(c) 2 Atk. 630 ; 2 Sch. & Lefr. 99. Tract published at end of 1 Rep. in 
 
 And see the cases cited above, p. 293, Cha. on Jurisd. of the Court of Cha. ; 
 
 note {k). Hunby v. Johnson, 1 Rep. in Cha. 
 
 (■/) Lingard v. Griffin, 2 Vern. 243; Bluck v. Elliot, Finch R. 13; 
 
 189. Pitt V.Hill, Finch R. 70; Temple 
 
 (g) Att. Gen. V.Sutton, I P.Wms. v. i5aZ«i7/g-/ass, Finch R. 275 ; Cor- 
 754 ; Salkeld v. Salkeld, 1763, be- nell v Ward, Finch R. 239 ; Wilcox 
 fore Lord Northington ; Brown v. v. Sturt, 1 Vern. 77; Bisscll v. Ax- 
 Williamson, Trin. 1772, before Lord tell, 2 Vern. 47 ; Penvill v. Lus- 
 Bathurst. combe, (1728), rep. 2 Jac. &, \V. 201 ; 
 
 {h) See Throckmorton v. Finch, 4 3 Bro. C. C. 72 ; 1 Scli. & Lefr. 204 ; 
 
 Co. Inst. 86 ; S. C. cited also in a Ord. in Cha. 19, Ed. Bea. 
 
 (1) Where a plaintiff claims as heir at law of a person who devised „, , , 
 ^ ' I . *^ Plea of a rcco- 
 
 estates tail, reserving the ultimate reversion to her own right heirs, very. 
 
 and the bill alleges that no valid recovery was suffered, or if it were, 
 
 thattlie property was so stilled that the plaintiff is entitled as heir oftlie 
 
 testator ; a plea which' sets forth the substance of the recovery and of 
 
 tlie deeds making the tenant to the prrocipe and le'idin;r ti.e uses of 
 
 the recovery, showing that a recovery was sutlered by the tenant for 
 
 life and the ultimate remainderman in tail, to the use of another person 
 
 in fee, is a good defence, altliougli not supported by any answer. 
 
 PlunkeU v. Cavendih, 1 Rues. & My. 713.
 
 297 PLEAS. [Chap. II. 
 
 a writ of right to recover the lands, but the defend- 
 ant had possession of the title-deeds, and intended 
 to set up the legal estate which was vested in the 
 trustee, and prayed a discovery of the deeds, and 
 that the defendant might be restrained from setting 
 up the estate in the trustee, the defendant pleaded, 
 as to the discovery of the deeds and relief, judg- 
 ment in her favor in the writ of right ; and aver- 
 red that the title in the trustee, which the bill sought 
 to have removed, had not been given m evidence : 
 and the plea was allowed (i). In this case the bill 
 was brought before the trial in the writ of right, 
 and the plaintiff had proceeded to trial without the 
 discovery and relief sought by his bill for the pur- 
 poses of the trial. The plea was subsequent to the 
 judgment. It may be doubted therefore whether 
 the averment that the title in the trustee had not 
 been given in evidence on the trial of the writ of 
 right was necessary, as the judgment was a bar, as 
 a release subsequent to the filing of the bill would 
 [2551 have been ; and if the plaintiff could have avoided 
 the effect of the judgment because the title in the 
 trustee had been given in evidence, it should seem 
 ^° thai that fact, together with the fact of the judgment, 
 
 ought to have been brought before the court by an- 
 other bill in the nature of a bill for a new trial, 
 either as a supplemental bill, or as an original bill, 
 the former bill being dismissed (Jc). 
 
 (i) Sidney, styling himself Earl ther a court of equity could give relief 
 
 of Leicester v. Perry, ia Chan. 23d after a judgment at law, see 3 lilackst. 
 
 July, 1783. Comm. p. 54 ; Gilb. For. Rom. 56 ; 
 
 (/:) Respecting the dispute in the and the Tract on the Jurisdiction of 
 
 time of Lord Ellesmere, raised by the Court of Chancery, comprising 
 
 Lord Coke, upon the question whe- the order of the king (James I.), ou
 
 S. II. p. II.] PLEAS. 298 
 
 To a bill to set aside a judgment, as obtained against 
 conscience (I), the defendant has been permitted to 
 plead the verdict and judgment in bar (m) (2) ; 
 but it may be doubted whether in this case the de- 
 fendant might not have demurred to the bill, as there 
 does not appear to have been any charge in the bill 
 requiring averment to support the plea. A sen- 
 tence of any (n) (3), even a foreign court (o), may 
 be a proper defence by way of plea ; but the court [256] 
 pronouncing the sentence must at least have had 
 
 tlie subject published.at the end of 1 bugg, Finch R. 171 ; Anon. 3 Rep. 
 
 Rep. in Cha. Ed. 1715 (1), and that in Cha. 25. 
 
 order at end of Gary's Reports, Ed. (n) See the cases referred to, page 
 
 1650. 296, note (A). 
 (I) 2 Ves. Jun. 135. (o) See Newland v. Horseman, 1 
 
 (m) Williams v. Lee, 3 Atk. 223. Vern. 21 ; S. C. 2 Ca. in Cha. 74; 
 
 And see Sewel v. Freeston, 1 Ca. in Burrows ■</. Jemineau,Se\.C&.'\aC\\&. 
 
 Cha. 65 ; Shuter v. Gilliard, 2 Ca. 69 ; 5". C. Mos. 1 Dick. 48 ; Gage v. 
 
 in Cha, 250; Armstead v. Parker, Bulkeley, 3 Atk. 215; S. C. 2 Ves. 
 
 Finch R. 171 ; Huddlestone v. As- 556 ; White v. Hall, 12 Ves. 320. 
 
 (1) [See a more correct copy of this tract in the Collectanea Juridica, 
 vol. 1. p. 23 : and also see Hallam's Const. Hist vol. i. p. 370, (English 
 edit.)]. 
 
 (2) See the form of such a plea, Willis, 648 ; and also the form of 
 the plea used in Williams v. Lee, supra.] 
 
 (3) A decision of an ecclesiastical council may be pleaded ; thus 
 where tlie minister and his parish in Massachusetts, submit a contro- 
 versy to an ecclesiastical council, its decision, not impeached for good 
 cause, is a justification of the party conforming to it, though it does 
 not, ea; prcyprio vigore, operate as a judgment. It has been viewed in 
 the light of an arbitration and award ; but it is not conclusive in all 
 respects. The minister having conformed to it, sued for his salary, 
 and on bill filed by the parish for discovery, alleging he had forfeited 
 his office on ground, which was the very subject submitted and praying 
 he might answer on oath touching the same ; a plea in bar of the de- 
 cision and his conformation thereto, was allowed, and the court held 
 that he was not compelled to make the discovery sought, because the de- 
 cision precluded the parish from any evidence in sup[)ort of the ground 
 so alleged for forfeiture by way of defence to said action. Proprietors 
 of Mollis Street Meeting-House v. Pierponl,! Metcalf R. (Mass.) 496. 
 
 25
 
 299 PLEAS. [Chap. IL 
 
 full jurisdiction to determine the rights of the par- 
 ties {p) (4). If there is any charge of fraud, or 
 other circumstance shown as a ground for relief, 
 the judgment or sentence cannot be pleaded ((/), 
 unless the fraud, or other circumstance, the ground 
 upon which the judgment or sentence is sought to 
 be impeached, be denied, and thus put in issue by 
 the plea, and the plea supported by a full answer to 
 the charge in the bill (r). Upon this principle the 
 court of exchequer determined upon a bill brought 
 by insurers of part of the property taken on board 
 the Spanish ships at Omoa. The bill charged that 
 the navy, on whose behalf, as captors, the defend- 
 ants had insured, where not the real captors, or not 
 the only captors ; that the Spanish ship struck to 
 the land-forces ; and that although the court of ad- 
 miralty had condemned the ship taken as prizes 
 to the navy, yet that condemnation had been ob- 
 tained in consequence of the king's procurator- 
 general having withdrawn a claim made on behalf 
 of the crown at the instance of the land-forces, 
 and of an agreement between the sea and land- 
 forces to make a division of the treasure ; and 
 that the sentence was therefore, as against the 
 
 (p) Gage V. Bulkeley, 2 Atk. 215. and of Gary's Rep. ; and see 2 Ves. 
 
 [And see Van Wyck v. Seward, 1 Jun. 135. 
 
 Edwards V. C. Reports, 327.] (r) 6 Ves. 596. As to the neces- 
 
 (q) See 2 Ca. in Cha. 251 ; and sity of these averments in the plea, 
 
 see the tract and order referred to in and the support of the plea by an- 
 
 last page at the end of 1 Rep. in Cha. swer, see p. 281, et seq. 
 
 Plea of a foreign d) A plea of a foreign judgment must show that the general fact 
 judgment. which is stated by the plaintiff" as the ground of equity was decided by 
 
 a foreign court of competent jurisdiction not to be a ground of equity. 
 
 Garcias v. Ricardo, 14 Sim. 265.
 
 S. II. p. II.] PLEAS. 299 
 
 plaintiffs the insurers, not conclusive. The de- 
 fendants pleaded the sentence of the admiralty, 
 both to discovery of the fact stated in the bill, and 
 to the relief prayed. The plea was in many re- [257] 
 spects informal, but the court was of opinion that ^^^ 
 
 the sentence thus impeached could not be pleaded 
 in bar to the discovery sought by the bill, and that 
 as a bar to relief, it ought to have been supported 
 by averments negativing the grounds on which it 
 was impeached by the bill (s) (1). 
 
 A will, and probate even in the common form, in 
 the proper ecclesiastical court, which is in the na- 
 ture of a sentence (t), is a good plea to a bill by 
 persons claiming as next of kin to a person sup- 
 posed to have died intestate (w). And if fraud in 
 obtaining the will is charged, that is not a sufficient 
 equitable ground to impeach the probate ; for the 
 parties may resort to the ecclesiastical court, which 
 is competent to determine upon the question of 
 fraud (x). But where the fraud practised has not 
 gone to the whole will, but only to some particular 
 clause, or if fraud has been practised to obtain the 
 consent of next of kin to the probate (?/), the courts 
 of equity have laid hold of these circumstances to 
 
 (s) Parkinson v. Lecras, 23d Feb. v. Branshy, 7 Bro. P. C. 437, Toml. L"^°J 
 
 1781. Ed.; Meadows y. Duchess of King- 
 
 (<) See 1 Atk. 516. ton, Mich. 1777, reported Ambl. 756 ; 
 
 (u) Jauncy v. Sealey, 1 Vern. 397. 5 Ves. 647 ; Griffiths v. Hamilton, 
 
 (x) Archer v. Mosse, 2 Vern. 8; 12 Ves. 298 (1). 
 
 Nelson V. Oldfield, 2 Vern. 76; Att. (y) As to the kind of relief which 
 
 Gen. V. Ryder, 2 Ca. in Cha. 178; may be given where a probate lias 
 
 Plume V. Beale, 1 P. Wms. 388 ; 2 been obtained by fraud, see Barnesly 
 
 P. Wras. 287 ; 2 Atk. 324 ; Kerrick v. Powel, 1 Ves. 284. 
 
 (1) [And see notes at page 123, ante ; also Jones r. Jones, 7 Price, 
 663.]
 
 301 PLEAS. [Chap. II. 
 
 declare the executor a trustee for the next of kin (y). 
 Where there are no such circumstances the pro- 
 bate of the. will is a clear bar to a demand of per- 
 sonal estate (z) ; and where a testator died in a 
 foreign country, and left no goods in any other 
 country, probate of his will according to the law of 
 that country was determined to be sufficient against 
 an administration obtained in England (<?). 
 pieasin bar of pieas iu bar of matters in pais only sometimes 
 
 matters in pais. ± J 
 
 go both to the discovery sought, and to the relief 
 prayed by the bill, or by some part of it ; some- 
 times only to the discovery, or part of the disco- 
 very ; and sometimes only to the relief, or part of 
 th« relief. 
 
 Pleas of this nature (which may go both to the 
 discovery and relief sought by the bill, or by some 
 patt thereof, but which sometimes extend no further 
 than the relief) are principally : 1 . A plea of a stat- 
 ed account (1) ; 2. Of an award ; 3. A release (2) ; 
 
 ixj] Marriot v. Marriot, iu Exch. Ambl; 762, 763. 
 1 Stra. 666, and argument of Ld. Ch. (z) 12 Ves. 307. 
 Baron Gilbert, Gilb. Ca. in Cha. 203. (a) Jauncy v. Sealey, 1 Vern. 397. 
 
 (1) [Tt is a strong rule of equity that a general release shall be con- 
 fined to what was under consideration at the time of giving it. 
 M'Intyre v. Clarke, 1 Edwards' V. C. Reports, 34.] , 
 
 (2) [In setting ap a defence under a public statute, it is not necessa- 
 ry, either in this court or in a court of law, that the pleader should set 
 forth the statute in his plea, or that he should allege the existence of 
 a statute of which the court is judicially bound to take notice. It is 
 sufficient for him to state the facts which are necessary to bring the 
 case within the operation of the statute ; and to insist that upon these 
 facts the plaintiff's right or remedy is at an end. The court will then 
 judicially take notice of the existence of the statute and declare its 
 legal effect upon the case as made by the pleadings. Per Chancellor 
 Walworth, in Bogardus v. Rector, <^c., of Trinity Church, 4 Paige's 
 C. R. 197-8. 178, supra, p. 318. Indeed, it seems more appropriate in
 
 S. II. p. IT.] PLEAS. 301 
 
 4. Of a will or conveyance, or some instrument . 
 controlling or affecting the rights of the parties ; 
 
 5. A plea of any statute which may create a bar 
 to the plaintiff's demand, as the statute for pre- 
 vention of frauds and perjuries, or the statutes for 
 limitation of actions, which may be considered as 
 a plea of matter in pais ; for though the statute it- 
 self is usually set forth in the plea, yet that perhaps 
 is unnecessary, and the substance of the plea con- 
 sists in the averment of matter necessary to bring [259] 
 the case within*the particular statute ; and there- ^^'^ 
 fore if those matters appeared on the face of the 
 
 bill itself it may be presumed a demurrer would 
 hold, though this has been doubted. 
 
 1. A plea of a stated account is a good bar to a tedlccJ^xLl '^' 
 bill for an account (h). It must show that the ac- 
 count'was in writing, or at least it must set forth the 
 balance (c). If the bill charges that the plaintiff 
 
 (b) Anon. 2 Freem. 62; 1 Vern. & W. 201 ; Irvine v. Youug, 1 Sim' 
 
 180; Dawson v. Dawson, 1 Atk. 1 ; &. Stu. 333. 
 Sumner v. Thorpe, 2 Atk. 1 ; Pen- (c) 2 Atk. 399. (1) 
 vil V. Luscombe, (1728), rep. 2 Jac. 
 
 this court to plead the facts merely which bring the case within the 
 operation of the principle of the statute, than to plead the statute, in 
 terms, as a bar. lb. But see Sailers v. Tobias, 3 Paige's C. R. 338.] 
 
 (1) [Hodderv. Wa^/s, 4 Price, 8 ; Bogardus v Rector, dj-c, of Trinity 
 Church, 4 Paige's R. 178. Where a plea of a stated account 
 speaks of the balance which was admitted upon it, and avers the ac- 
 count to be just and true, it must, nevertheless, be supported by an 
 answer denying the receipt of any part of the money for which the 
 defendant is called to account subsequently to the time when the 
 account stated was adjusted. Daiiels v. 'TaggarCs adminisLrator, 1 
 Gill & Johns. 311.] 
 
 A plea of an account stated and settled should state that the com- 
 plainant and defendant made up stated and settled an account in wri- 
 ting, and that the complainant after examination approved of said ac- 
 count. These allegations are in all the precedents and are important.
 
 802 PLEAS. [Chap. II. 
 
 has no counterpart of the account, the account 
 should be annexed by way of schedule to the an- 
 swer, that if there are any errors upon the face of 
 it the plaintiff may have an opportunity of pointing 
 [260] them out- {d). If error (e) or fraud (/) is charg- 
 
 (rf) Hankey v. Simpson, 3 Atk. 1 Barnard, 272 ; Roberts v. Kuffin, 
 
 303 (2). 2 Atk. 112 ; Pit v. Cholmondeley, 2 
 
 (e) On the subject of this court's 2 Ves. 565 ; Johnson v. Curtis, 3 Bro. 
 
 mterference, where there is error in a C. C. 266 ; Gray v. Minnethorpe, 3 
 
 settled account, see Anon. 2 Freem. Ves. 103 ; Lord Hardwicke v. Ver- 
 
 62; ProMrfv.Comfies, 2 Freem. 183; non, 4 Ves^ 411 ; 5 Ves. 837; Kina- 
 
 S. C. 3 Rep. in Cha. 18 ; 1 Ca. in man v. Barker, 14 Ves. 262 (3). 
 
 Cha. 55 ; 2 Freem. 183 ; Nela. 100 ; (/) As to its interference where 
 
 and 1 Eq. Ca. Ab. 12; Wright v. the settlement of an account has 
 
 Coxon, 1 Ca. in Cha. 262; Bedell v. been accompanied with fraud, see Fer- 
 
 Bedell, Finch R. 5 ; Dawson v. Daw- nonv.Vawdry,^ Atk. 119 ; Nevoman 
 
 son, 1 Atk. 1 ; Bourke v. Bridgeman, v. Payne, 2 Ves. Jun. 199 ; Wharton 
 
 When all the allegations of the plea being taken as true do not make 
 out a full defence, the plea cannot be sustained. But where the court 
 believed that the omission of the necessary allegations was accidental 
 and could readily be supported, the court would allow defendant to 
 amend it in these particulars, and in default thereof the plea was 
 ordered to stand for answer, with leave to complainant to except to it. 
 The answer in support of the plea, though not stated to be so, was de- 
 cidedly so, and was also allowed to be amended in a formal omission 
 of stating it to be in support of the plea. Meeker v. Marsh, Ex^r, ^c, 
 Saxton (N. J.) Ch. R. 203-4. 198. 
 
 tSuch is the peculiar nature of this kind of pleading in equity tliat a 
 court should always be careful to see that it sets forth plainly and ex- 
 plicitly every matter necessary to constitute a complete defence and 
 bar to the complainant's claim. ^ For if the plea be allowed by the 
 court a.-5 correctly pleaded, and is afterwards proved, the cause is at an 
 end. The allowance of a plea, says Lord Redesdale, is as complete a 
 judgment against the claims of plaintiff, as can be given on the most 
 solemn and deliberate hearing of the cause on the pleadings and 
 proofs, provided the truth of the plea be established by evidence. 2 
 Scho. & Lef. 725, Roche V. Morgall, quoted in Meeker v. Marsh, 
 Saxton C. R. 203-4. 198. 
 
 (2) [Blfickledge v. Simpson, 1 Hay ward's R. 259. Weed v .Small, 
 7 Paige's Ch. R. 573.] 
 
 (3) [Chappedelaine v. Decheneauz, 4, Cranch, 306.]
 
 S. II. p. II.] PLEAS. 302 
 
 ed {g) it must be denied by the plea as well as by 
 
 way of answer {h) (1) ; and if neither error nor 303 
 
 fraud is charged, the defendant must by the plea 
 
 aver that the stated account is just and true to the 
 
 best of his knowledge and belief (^). The delivery 
 
 up of vouchers at the time the account was stated 
 
 seems to be a proper averment in a plea of this 
 
 nature {k), if the fact was such (/) (2). 
 
 2. An award may be pleaded to a bill to set aside awari" **' ** 
 
 V. May, 5 Ves. 27 ; Beaumont v. And see above, p. 280, e.t seq. 
 
 Boultbee, 5 Ves. 485 ; S. C. 1 Ves. (i) 3 Atk. 70 ; 1 Eq. Ca. Ab. 39 ; 
 
 599; 11 Ves. 358; Langstaffe \. 2 Sch. & Lefr. 727. And see J»fa«- 
 
 Taylor, 14 Ves. 2G2 ; Drew v. Power, thews v. Walwyn, 4 Ves. 118; Mid- 
 
 1 Sch. & Lefr. 182. dleditch v. Sharland, 5 Ves. 87 ; 
 
 {g) 9 Ves. 265, 266. [Bogardus v. Rector, ^c. Trinity 
 
 (h) Gilb. For. Rom. 56 ; 1 Ca. in Church, 4 Paige's R. 178.] 
 
 Cha. 299 ; 2 Freem. 62 ; 6 Ves. 5!)6 ; (k) Gilb. For. Rom. 57 ; Walker v. 
 
 Clarke v. Earl of Ormonde, 1 Jac. Consett, Forrest's Exch. R. 157 ; 
 
 R. 116. And, it seems, if the plain- Hodder v. Watts, 4 Pri. E.\ch. R. 8- 
 
 tifF allege that he has no counterpart And see Wharton v. May, 5 Ves. 27. 
 
 of the stated account, the defendant {I) 2 Atk. 252. See the ceise of 
 
 must annex a copy thereof to his plea, Clarke ■v. Earl of Ormonde, 1 Jac. 
 
 Oankey v. Simpson, 3 Atk. 303. R. 116. 
 
 (1) A plea of a leg^al bar (such as a full, true, and settled account, Neceasity that 
 and a release, ) is defective if it does not explicitly negative, so as to bar^g^oufd nf*? 
 ffive the plaintiff an issue on the plea to try, circumstances which are ative circum- 
 
 . , . 1 1 11 X 1 r I J 11 • J 1 • 1 T . stances aflecting 
 
 charged by the bill (such as Iraud and collusion), and which, it true, the bar. 
 
 would render the legal bar insufficient. And this is the case even 
 though such matters are positively denied by an answer in support of 
 the plea. Phelps v. Sprowle, 1 My. & K. 231, decided by Lord Broug- 
 ham, C, overruling the decision of the Vice-Chancellor. 
 
 (2) A plea, by a trustee, of a settled account and release, to inquiries ;|'^g'ou V *^d"*e* 
 as to the execution of a trust, is bad, if it does nut aver that the matters iea»e. 
 inquired after appear from the account. And a plea of a settled ac- 
 count and release to a bill by a cestui que trust against a trustee will 
 
 not protect the trustee from a discovery of vouchers. Clarke v. The 
 Earl of Ormonde, Jac. 116. 
 
 [Seethe form of a plea of a stated account, Willis, 550 ; and observe 
 the notes there.]
 
 304 PLEAS. [Chap. II. 
 
 the award and open the account (m) ; and it is not 
 only good to the merits of the case, but Hkewise to 
 the discovery sought by the bill (n). But if fraud 
 or partiality is charged against the arbitrators (/?), 
 [261] the charge must not only be denied by way of 
 averment in the plea, but the plea must be support- 
 ed by an answer showing the arbitrators to have 
 been incorrupt and impartial (q) ; and any other 
 matter stated in the bill as a ground for impeach- 
 ing the award must be denied in the same man- 
 ner (2). 
 ^^pieacfare. g j^ ^j^^ plaintiff, or a person under Avhom he 
 claims, has released the subject ofhis demand, the de- 
 fendant may plead the release in bar of the bill (r) (3), 
 
 (m) Lingood v. CroucJier, 2 Atk. S. C. reported 1 'J'urn. R. 131, note , 
 
 395 ; Lingood v. Fade, S. C. 2 Atk. Chicot v. Lequesne, 2 Ves. 315; 2 
 
 501; Burton v. Ellington, 3 Bro. Ves. Jun. 135 ; ReynellY.Luscombe, 
 
 C. C. 196 (1). 1 Turn. R. 135, n. ; Goodman v. 
 
 (^n) Tittensonv.Peat,3 Aik.529; Sayers, 2 Jac. &l\V. 249 ; Auriol v. 
 
 Anon. 3 Atk. 644. As to a plea of Smith, 1 Turn. R. 121 ; Dawson v. 
 
 an award under an agreement to refer Sadler, 1 Sim. &. Stu. 537. 
 
 the matters in dispute to arbitration, (q) 2 Atk. 396; 6 Ves. 594, 596; 
 
 entered into after bill filed, see Dry- 2 Ves. & B. 364 ; and see Allardes 
 
 den V. Robinson, 2 Sim. &, Stu. 529; v. Campbell, rep. 1 Turn. 133, note ; 
 
 and see Rowe v. Wood, 1 Jac. & W. -S. C. Bunb. 265 ; Rybott v. Barrell, 
 
 348 ; S. C.2 Bligh, P. C. 595. 2 Eden R. 131. 
 
 (0) As instances, see W^artZ V. Pe- (r) Bower v. Swadlin,! Atk. 294; 
 riam, cited 2 Atk. 396; 2 Ves. 316 ; Taunton v. Pepler, 6 Madd. 166; 
 
 (1) [As to applications to enforce awards, see the case of Webster, 1 
 Russ. & M. 496, and note (a) there. For the form of a plea of an 
 award, see Willis, 553.] 
 
 (2) [And see Henriclj r. Blair, 1 J. C. R. IGl ; Shepard v. Merrill, 
 
 2 lb. 276 ; Underbill r. Van Cortlandt, 2 lb. 339 ; Bouck v. Wilber, 
 4 lb. 405 ; Toppan v. Heath, 1 Paige's C. R. 293 ; Campbell c. Western, 
 
 3 lb. 124 ; Fitzpatrick v. Smith, 1 Desau, 245 ; Atwyn v. Perkins, 3 
 lb. 297 ; Shermer v. Beale, 1 Wash. 11 ; Pleasants v. Ross, lb. 156 ; 
 Morris v. Russ, 2 Hen. & Munf. 408 ; Davy's Executors r. Shaw, 7 
 Cranch, 171.] 
 
 (3) To a bill by a husband and wife for property limited to the sepa-
 
 8. II. P. II.] PLEAS. 305 
 
 and this will apply to a bill praying that the release 
 may be set aside (s). In a plea of a release the 
 defendant must set out the consideration upon 
 which the release was made (t). A plea of a re- 
 lease therefore cannot extend to a discovery of the 
 consideration ; and if that is impeached by the bill, 
 the plea must be assisted by averments covering [262] 
 the grounds on which the consideration is so im- 
 peached (2). Thus, to a bill stating various tran- 
 sactions between the defendant and the testator of 
 the plaintiff, and imputing to those transactions 
 fraud and unfair dealing on the part of the defend- 
 ant, and impeaching accounts of the transactions 
 delivered by the defendant to the testator on the 
 ground of errors, omissions, and unfair and false 
 charges, and also impeaching a purchase of an 
 estate conveyed by the testator to the defendant in 
 consider.'.tion of part of the defendant's alleged 
 
 Clarke v. Earle of Ormonde, 1 Jac. by ai> answer to the same effect, 
 
 R. 116. And see Roche v. Morgell, Lloyd v. Smith, 1 Anstr. Exch. R. 
 
 2 Sch. &, Lefr. 721. 258; Freeland v. Johnson, 1 Anetr. 
 
 (s) Pusey V. Desbouverie, 3 P. Exch. R. 276 ; Walter v. Glanville, 
 
 Wins. 315. And with regard to this 5 Bro. P. C. 555, Toinl. Ed.; 2 Sch. 
 
 Iatterpropo8ition,it may be remarked, &, Lefr. 727; 6 Mad. 64; 2 Sim. & 
 
 that it is in like manner necessary Stu. 279 (1). 
 
 that the defendant should deny the (t) Gilb. For. Rom. 57 ; Griffith v. 
 
 equitable circumstances charged for Jtf««ser, Hardr. 168 ; 2 Sch. &. Lefr. 
 
 the purpose of impeaching the re- 728; and see Walter v- Glanville, 5 
 
 lease, by averments in his plea, and Bro. P. C. 555, Toml. Ed. 
 
 rate use of the wife, a pica of a release by the husliand is a good plea. Pics of relaM* 
 Stooke V. Vincent, 1 Coll. 5:27. hfg'wifo'i pro- 
 
 (1) See also Parker v. Alcock, 1 Y. & J. 432. P"'y 
 [See the form of such a plea, Willis, 656.] 
 
 (2) [And see Allen v. Randolph,-^ J. C. R. 693 ; Bolton v. Gardner, 
 3 Paige's C. R. 273; also (but which wa.s the case of an answer,) 
 Bavies v. Spurling, 1 Tainlyn's R. 199.]
 
 §05 PLEAS. [Chap. IT. 
 
 demands, and praying a general account, and that 
 , the purchase of the estate might be set aside as 
 fraudulently obtained, and the conveyance might 
 stand as a security only for what was justly due 
 from the testator's estate to the defendant ; a plea 
 306 of a deed of mutual release, extending to so much 
 
 of the bill as sought a discovery, and prayed an ac- 
 count of dealings and transactions prior to and upon 
 the day of the date of the deed of release, and all 
 relief and discovery grounded thereupon, and sta- 
 ting the deed to have been founded on a gene- 
 ral settlement of accounts on that day, and to have 
 accepted securities then given to the defendant for 
 the balance of those accounts which was in his fa- 
 vour, and averring only that the deed had been pre- 
 pared and executed without any fraud or undue 
 practice on the part of the defendant, was overruled. 
 The consideration for the instrument was the gene- 
 ral settlement of accounts ; and if those accounts 
 were liable to the imputations cast upon them by 
 [263] the bill (u), the release was not a fair transaction 
 and ought not to preclude the court from decree- 
 ing a new account. The plea therefore could not 
 be allowed to cover a discovery tending to impeach 
 those accounts, and the fairness of the settled ac- 
 counts was not put in issue by the plea, or support- 
 ed by an answer denying the imputations charged 
 in the bill (1). . The plea indeed was defective in 
 
 (m) Though an account be stated relieve. See the cases cited above > 
 under hand and seal, yet if there ap- 302, note (e). 
 pear any mistake in it, the court will 
 
 (1) In an answer in support of a plea, the defendant must answer 
 all those matters in a Bill, whicl>, if true, would dis|lace the plea,
 
 S. 11. p. II.] PLEAS. 306 
 
 many other particulars, necessary to support it 
 
 against the charges in the bill ; and to some parts 
 
 of the case made by the bill the release did not ex- 307 
 
 tend (x). A release pleaded to a bill for an account 
 
 must be under seal (?/) ; a release not under seal 
 
 must be pleaded as a stated account only (z) (2). 
 
 4. To a bill brouo^ht upon a around of equity by conveyMc'e, or 
 
 n f ^ o IJJ Qfjjg^ instru- 
 
 an heir at law against a devisee, to turn the devisee ™«»*- 
 out of possession, the devisee may plead the will, 
 and that it was duly executed (a) (3). But in cases 
 of this kind where the bill has also prayed a re- 
 ceiver, a plea extending to that part of the bill has 
 been so far overruled, as it might be necessary for 
 the court in the progress of the cause to appoint a 
 receiver (b). Upon a bill filed by an heir against 
 a person claiming under a conveyance from the an- 
 cestor, the defendant may plead the conveyance in [264] 
 bar of the suit. To a bill by one partner in trade 
 against his copartner for discovery and relief relative 
 to the partnership transactions, a plea of the arti- 
 
 (ar) Roche v. Morgcll, 2 Sch. & Dotnsing, c\ted2\e8.36l ; Meadows 
 
 Lefr. 721 (D. v. Dnck. of Kingston, Mich. 1777, 
 
 (y) But it need not be signed, reported Ambl. 756 ; .3 IVIeriv. 171. 
 Taunton v. Pepler, G Madd. 166. (6) Anon. 2 Atk. 17, and Meadows 
 
 r^ (z) Gilb. For. Rom. 57. v. Duch. of Kingston. But see 2 
 
 («) Anon. 3 Atk. 17 ; Anstis v. Ves. 362, 363. 
 
 whether the bill does or does not expressly charge those matters to be 
 evidence of the facts to uliich the plea relates. Chadivick v. Broad- 
 wood, 3 Beav. 630. 
 
 (1) [And see BoUon v. Gardner, 3 Paige's C. R. 273.] 
 
 (2) The correct mode of pleading a release in bar of an account la 
 to state it as being under seal ; but it would seem that this is not in- 
 dispen.-^ahlo. Phdps v. Sprowlr, 1 My. &. K. 231. 
 
 (3) [See the form of such a plea, Willis, 65i) ; and ob-serve the latter 
 part of note (6) there. For another forni of this species of plea, see 
 Equity Draft. 118.]
 
 307 PLEAS. [Chap. II. 
 
 cles of partnership, by which it was agreed that all 
 differences which might arise between the partners 
 should be referred to arbitration, and that no suit 
 should be instituted in law or equity until an offer 
 should have been made ta leave the matter in dif- 
 
 308 ference to arbitration, and that offer had been refus- 
 ed, has been allowed (c). This case has been much 
 questioned ; and it now seems to be determined 
 that such an agreement cannot be pleaded in a 
 bar of suit (d), nor will the court compel a specific 
 performance of the agreement (e). Indeed it 
 seems impossible to maintain that such a contract 
 should be specifically performed, or bar a suit, un- 
 less the parties had first agreed upon the previous 
 question, what were the matters in difference, and 
 upon the powers to be given to the arbitrators, 
 amongst which the same means of obtaining disco- 
 very upon oath, and production of books and papers, 
 as can be given by a court of equity might be es- 
 sential to justice. The nomination of arbitrators 
 
 [265] also must be a subject on which the parties must 
 previously agree ; for if either party objected to the 
 person nominated by the other, it would be unjust 
 to compel him to submit to the decision of the per- 
 son so objected to as a judge chosen by himself. 
 It must also be determined that all the subjects of 
 difference, whether ascertained or not, must be fit 
 subjects for the determination of arbitrators, which, 
 
 (c) Hal/hide v. Penning, 2 Bro. St.rept v. Righy, 6 Ves. Jiin. 815 ; 
 
 C. C. 336; Contra, Wellington v. 14 Ves. 270; Waters v. Taylor, 15 
 
 Mackintosh, 2 Atk. 569. Ves. 10. 
 
 (rf) Satterly v. Robinson, Exch. (e) 6 Ves. Jun. 818; Aftines v. Gcry, 
 
 17 Dec. 1791 ; Michell v. Harris, 4 14 Ves. 400. 
 Bro. C. C. 311 ; S. G. 2 Ves. Jun. 129 ;
 
 S. II. p. II.] PLEAS. 308 
 
 if any of them involved important matter of law, 
 they might not be deemed to be. 
 
 5. The statute for prevention of frauds and per- 5. piea of ti>« 
 juries (/) (1) may be pleaded in bar of a suit to 
 which the provisions of that act apply (g) (3). 309 
 
 This form of pleading generally requires negative 
 averments to support the defence (h). Thus, to a 
 bill for discovery and execution of a trust, the sta- 
 
 (/) 29 Car. 11. c. 3. Edwards, 4 Ves. 23 ; Bowers v. Ca- 
 
 {g) Gilb. For. Rom. 61 ; Bawdes tor, 4 Ves. 91 ; 2 Vee. &, B. 364. 
 
 V. Amhurst, Prec. in Cha. 402 ; And where there are not equitable 
 
 O'Reilli/ V. Thompson, 2 Cox, R. circumstancesstated in the bill, which 
 
 C71 ; Gunter \. Halsey, Ambl. 586 ; migiit operate to prevent the relief 
 
 Jordan v. Sawkins, 3 Bro. C. C. 388 ; sought by the plaintiff being barred 
 
 S. C. 1 Ves. Jun. 402 ; (2) Main v. by the statute, but tlie agreement is 
 
 Melhourn, 4 Ves. 720. As. to the alleged to have been in writing, and 
 
 equitable grounds upon which a case facts are charged in evidence thereof, 
 
 may be exempted from the operation negative averments are also requisite 
 
 of the Statute of Frattds, see 3 Ves. to the defence. Evans v. Harris, 1 
 
 38, note (a) . Vee. & B. 361 ; and see Jones v. Da- 
 
 (h) Stewart v. Careless, cited 2 vis, 16 Ves. 262. 
 Bro. C. C. 565 ; Dick. 42 ; Moore v. 
 
 (1) And see 2 Revised States of New- York, 134, 135, 301. For the 
 form of a plea of the statute of frauds, to a bill for specific performance, 
 see Equity Draft. 1T)7, (2d edit.) ; but observe the note there, 
 whereby it appears that this plea was overruled and directed to stand 
 for an answer ; and see the text at page 267, post. There is another 
 precedent, being in bar to so much of a bill as sought to compel the 
 specific performance of a parol agreement for a lease. 2 Equity 
 Draft, 112, (2d edit.)]. 
 
 (2) [Harris V. Knickerbocker, on appeal, 5 Wendell's R. 638; <S. C. 
 1 Paige's C. R. 209.] 
 
 A party to avail himself of the statute of frauds, must plead it or 
 rely on it in some form. Thornton v. Henry, 2 Scammon's III. Rep. 
 219. 
 
 When a plea of the statute of frauds is overruled, if the defendant 
 then files his answer, he waives and withdraw.s his plea; and has no 
 longer any right to insist on the statute as a defence. Keatts v. Rec- 
 tor, 1 Arkansas Rep. 391. 
 
 (3) [But see page 267, pos/.]
 
 809 PLEAS. [Chap. II. 
 
 tute, with an averment that there was no declara- 
 tion of trust in writing, may be pleaded (^), though 
 in the case cited the plea was overruled by an an- 
 
 [266] swer, admitting, in effect, the trust. To a bill for 
 a specific performance of agreements, the same 
 statute, with an averment that there was no agree- 
 ment in writing signed by the parties, has been also 
 pleaded (k). It has been understood that this plea 
 extended to the discovery of a parol agreement, as 
 well as to the performance of it, except where the 
 agreement had been so far performed that it might 
 be deemed a fraud on the party seeking the bene- 
 310 fit of it, unless it was completely carried into ex- 
 
 ecution (I), and cases have been determined ac- 
 cordingly (m). This has of late been the subject 
 of much discussion, and some contrariety of deci- 
 sion. In one case (n) the court appeared to have 
 conceived that the courts of equity in determining 
 cases arising upon this statute had laid down two 
 propositions founded on rules of equity, and had 
 given a construction to the act accordingly, which 
 amounted to this, that the act was to be construed 
 ^ as if there had been an express exception to the 
 
 r2671 extent of those rules in favour of courts of equity, 
 and that no action was to be sustained except upon 
 
 (t) Cottington v. Fletcher, 2 Atk. Morphett v. Jones, 1 Svvanst. 172, 
 
 156. and the authorities therein referred to. 
 
 (k) Mussell V. Cooke, Free, in (m) Mollis v. Whiteing, 1 Vern. 
 
 Chan. 533 ; Child v. Godolphin, cited 151 ; Whaley v. Bagnal, 1 Bro. P. C. 
 
 2 Bro. C. C. 566 ; «■. C. Dick, 39 ; 345, Toml. Ed. ; and see Whitbread 
 
 Child V. Comber, 3 Swanst. 423, n. ; v. Brockhurst, 1 Bro.C C.404 ; S. C. 
 
 Hawkins V. Holmes, 1 P. Wms. 770; 2 Ves. &. Bea. 153, u. ; Whitchurch 
 
 Clerk V. Wright, 1 Alk. 12. v. Bevis, 2 Bro. C C. 559. 
 
 (l) That this is the construction (n) Whitchurch v. Bevis, in Chan, 
 
 put upon acts of part performance, 8 Feb. 1786, reported 2 Bro. C. C 
 
 see 1 Sch. & Lefr. 41 ; 3 Meriv. 246 ; 559.
 
 S. II. p. II.] PLEAS. 310 
 
 an agreement in writing, signed according to the 
 requisition of the .statute, and except upon bills in 
 equity, where the party to be charged confessed 
 the agreement by answer, or there was a part per- 
 formance of the agreement. It was therefore de- 
 termined that to the fact of the agreement the de- 
 fendant must answer. But the court, afterwards 
 upon a rehearing, allowed the plea (o). In sub- 
 sequent cases this subject was much discussed, 
 and the question was particularly considered, whe- 
 ther, if the defendant admitted by answer the fact 311 
 of a parol agreement, but insisted on the protec- 
 tion of the statute, a decree could be pronounced 
 for performance of the agreement without any 
 other ground than the fact of the parol agree- 
 ment thus confessed. At length it seems to have 
 been decided, that though a parol agreement be 
 confessed by the defendant's answer, yet if he in- 
 sists on the protection of the statute no decree 
 can be made merely on the ground of that con- 
 fession (p) ; and it may now apparently be con- 
 
 (0) Whitchurch v. Bevis, on re- (p) 1 Bro. C. C. 416 ; Whitchurch 
 hearing, Hil. vac. 178D, principally v. Bevis, 2 Bro. C. C. 559 ; 4 Vea. 
 on the authority of Whaley v. Bag. Jun. 23, 24 ; 6 Ws. 37 ; 12 Ves. 471 ; 
 nal, 1 Bro. P. C. 345, Toml. Ed. 15 Ves. 375 (1). 
 
 (1) [In a suit for a specific performance of a contract in relation to 
 land, if the bill states that an airreement .was made, on demurrer to the 
 bill, the contract will be presumed to have been reduced to writing and 
 signed by the parties or their agents, unless the contrary appears. If 
 the agreement, however, appears in the bill to have been a parol 
 agreement and no facts are alleged to take the case out of the statute, 
 the defendant may demur to the bill. Cozine v. Graham, 2 Pa'ge's 
 C. R. 177; 2 Revised Statutes of N. Y. 134, 135. And for ca^e-s of 
 parol agreements and part performance, see among others, Welmore v. 
 White, 2 C. C. E. 87, (sed vide, Jackson, ex dem Smith v. Pierce, 2 J. 
 R. 221); Phillips v. Thompson,! J. C. R. 131 ; Parhhurst v. Van
 
 311 PLEAS. [Chap. II. 
 
 eluded that a plea of the statute cannot in any 
 case be a bar to a discovery of the fact of an 
 agreement ; and that as the benefit of the statute 
 may be had if insisted on by answer, there can be 
 r2681 ^^ "®^ ^^ pleading it in bar of relief. Whether 
 the same rule would be applied to a confession of 
 a trust by an answer, which may be considered as 
 a, declaration of the trust in writing, signed by the 
 party, as indeed the confession of a parol agree- 
 ment by answer might also be deemed, seems to 
 be an important question, not agitated in the cases 
 decided with respect to other agreements, and up- 
 on which it may be very difficult to make a satis- 
 factory distinction. In the cases in which it was 
 formerly considered that a plea of this statute was 
 the proper defence, it was conceived that any mat- 
 ter charged by the bill which might avoid the bar 
 created by the statute must be denied, generally, 
 by way of averment in the plea, and particularly 
 and precisely by way of answer to support the plea. 
 gj^g But according to one case (q), if any such matter 
 
 were charged in the bill it became impossible to 
 plead the statute in bar ; the court having deter- 
 mined that denial of the matter so charged made 
 the plea double (r), and therefore informal ; and 
 it may now be doubtful whether a plea of the sta- 
 tute ought in any case (except perhaps the case of 
 a trust) to extend to any discovery sought by the 
 
 (q) Whithread v. Brockhurst, 1 (r) On the subject of double pleas, 
 Bro. C. C. 404 ; S. C. 2 Ves. & B. see hereafter, pp. 343, 344. 
 153, note. 
 
 Cortlandjih. 273; and also note of cases at page 119, an^e; and Eng- 
 lish cases well collected in Blunt's Ambler, p. 585, note (2). .
 
 S. II. p. II.] PLEAS. 312 
 
 biil, and indeed whether it ought not to be deem- 
 ed a needless and vexations proceeding if con- 
 fined to relief («). 
 
 The statute for hmitation of actions (t) is like- [269] - 
 wise a good plea (u) (1). But if the bill charges futeonl^tt" 
 
 tiona. 
 (j) As to the effect of iusistiug on' (i) 21 Jac. I. c. 16. 
 the statute by answer, or by plea, and (u) Gilb. For. Rom. Gl ; Wye ft v. 
 wiiether necessary, see Newton ^. East India Comp., 3 P. Wms. 309 ; 
 Preston, Free, in Chan. 103. See ^acojj 'v. Lacon, 2 Atk. 395 ; Earl of 
 also Kirk and. Webb, Free, in Chan. Strafford v. Blakeway, 6 Bro. F. C. 
 84. And"see Rowev. Teed, 15 Ves. G30, Toml. Ed.; Barber v. Barber, 
 372; 18 V6S. 182; Morphettv.Jones, -18 Ves. 286, and" the cases therein 
 
 1 Swanst., 172. \Cozine v. Bleaker,, cited. 
 
 2 Paige's C. R. 177.] 
 
 ' (1) A new statute of limitafions (3^&'4 W.IV. c. 27) has been 
 parsed ; but it Jnly applies to real property, and to money charged 
 ujion or payable out bf real estate, and to legacies. Tliia statute ex- 
 pressly extends to suits in equity. (See sect. 24.) It has befen 
 amended by stat. 7 WflV: and 1 Vict. c. 28. 
 
 The statute ofiimitations may be pleaded in bar to a bill to prevent 
 the selling up of an outstanding terin. Jermy v. B''.st, 1 Sim. 373. 
 
 [S(?e the form, of such a plea, Willis,. 562. ' And observe the note at 
 page 273, fost. For other forms, see Equity Draft. 113, 114; Beames 
 on Pleas, .161.] ■ 
 
 The rule is well settled in England and in this country that effect 
 will be given ta the statute of limitations in equity, the same as at 
 law. The principle is well established and generally sanctioned in 
 courts of equity, that by analogy the statute of limitations is a bar to 
 an equitable right when at law it would operate against a grant. At 
 law, it operates where conflicting titles are adverse in their origin and 
 no reason is perceived -against giving the statute the same effect in 
 equity. Miller v. Mclnlire,6 Peters, 65—67, 61. 
 
 •Held in Kane v. BlooJgood,! Johns. Cli. R, 90; that the statute 
 applies to legacy, since a remedy at law was given by statute to re- 
 cover legacies and distributive shares. But such is not the Jaw in 
 England. Chancellor Kent went further than had been adventured 
 and overturned a number of his previous decisions. King v. Execu- 
 tors of Perry, 2 Green C. R. 64; 
 
 The plea of the statute of limitations is a defence not to be favored. 
 As a general rule it is inequitable, not favored, and the court will lend 
 its aid to effect a trial on the merit.s when it will set at least passive, 
 while a defendant asks its assistance to close the door against Bucb 
 
 26
 
 312 PLEAS. [Chap. IL 
 
 a fraud, and that the fraud was not discovered (x) 
 till within six years before filing the bill, the sta- 
 
 313 tute is not a good plea, unless the defendant de- 
 nies the fraud (y), or avers that the fraud, if any, 
 was not discovered within six years before filing 
 the bill (z). And though the statute of limitations 
 is a bar to the claim of a debt, it was formerly de- 
 termined not to be a bar to a discovery when the 
 debt became due ; for if that had been set forth, 
 it would appear to the court whether the time limi- 
 ted by the statute was elapsed (a), but later deci- 
 sions have been to the contrary (/>). These de- 
 
 (a:) See 2 Seh. &, Lefr. 631 and Brockhurst, 1 Bro. C. C. 404 ; and 2 
 
 633, and following pages, and the Ves. & B. 153, n. ; this should be 
 
 cases therein cited, and 2 Ball & B. considered a doutle plea. 
 
 118. (a) Mackworth V. Clifton, 2 Wk. 
 
 (y) Bicknell^-v. Gough, 3 Atk. 51 ; 2 Sch. &. Lefr. 635. 
 
 558. (1). (by Sutton v. Earl of Scar- 
 
 (z) South Sea Comp. v. Wy- borough, 9 Ves. Juu. 71, and other 
 
 iw^rndsell, 3 P. Wms. 143 ; Sutton authorities there cited. And see 
 
 V. Earl of Scarboroi gh, 9 Ves. 71. Baillie v. Sibbald, 15 Ves. 185 ; 
 
 But according to Whitbread v. Cork v. Wilcock, 5 Madd. 328. 
 
 inquiry and to avail himself of his own laches in not paying the debt 
 by the bar imposed by the statute unless he avail himself oLsuch plea 
 within the rule day. Ibid. 
 
 The p'.ea must in itself, if true, contain a complete bar. It should 
 not be a naked plea of the statute of limitations, but should contain 
 averments negativing the special matters setup in the bill which if 
 true would avoid the operation of the statute ; and the answer in sup- 
 port of the plea should also contain a full discovery of the matters so 
 set up in avoidance of the bar. It is not sufficient for the answer 
 alone to negative such matters ; for it is mere matter of discovery ; but 
 the plea should in itself, if true, contain a complete bar. This is stated 
 at large by Lord Redesdale, in his excellent work on Equity Pleading. 
 Stearns v. Page, 1 Story R. 212. After issue made up, or if defendant 
 be in default, he is not al'owed to put in the plea, unless under peculiar 
 circumstances. Streets v. Baldicin's Adminslrator, 12 Ohio R. 131. 120 
 
 (1) [Goodrich v. Pendleton, 3 J. C. R. 3&4 ; and see Mihes \. 
 Cowley, 4 Price, 103.]
 
 S.II. p. II.] PLEAS. 313 
 
 cisions are stated to have been founded on a rule 
 adopted of late years, that where a demurrer to 
 rehef would be good, the same ground of demur- 
 rer would extend to the discovery on which the re- 
 lief prayed was founded; and applying this rule, 
 originally confined to demurrers, to pleas also (r). [270] 
 It may be doubted whether in this extension of 
 the rule to pleas, the difference between a plea and 
 demurrer has been sufficiently considered. A de- 
 murrer founds itself on the bill, and asserts no 
 matter of fact the truth of which can be disputed. 
 A plea, on the contrary, asserts a fact the truth of 
 which is put in issue by the plea. When, there- 
 fore the statute of limitations is pleaded to a de- 
 mand, and the question to be tried on the issue 314 
 joined upon the plea is, whether the debt became 
 due within six years before the filing of the bill, 
 it is denying the plaintifl" the benefit of that disco- 
 very in aid of proof which is allowed in all other 
 cases, to hold that a plea of the statute of limita- 
 tions, with an averment that the cause of action, 
 if any, occurred six years before the filing of the 
 bill will be a bar t ) a discovery of the truth of that 
 averment (d). In the case of money received by 
 the defendant for the use of the plaintiff, and 
 where the sums received, as well as the times 
 when they were respectively received, may rest in 
 the knowledge of the defendant only, it may 
 amount to a complete denial of justice to hold that 
 a plea of the statute of liiiiitations, with such an 
 
 (c) See the distinction taken on (d) This argument is supported 
 the subject, in James v. Sadgruve, by Cork v. Wilcock, 5 Madd. 328 ; 
 1 Sim. & Stu. 4. and 1 Sim. &l Stu. 6.
 
 314 PLEAS. [Chap. II. 
 
 averment, is a bar to any discovery as to the sums 
 received, and when received, and of whom, and as 
 to entries in books, and other papers, which the 
 discovery might enable the plaintiff to prove the 
 [271] falsehood of the plea by witnesses and production 
 of papers, as well as by the defendant's answer. 
 Where a particular special promise is charged to 
 avoid the operation of the statute. (rZ), the plain- 
 tiff -must deny the pron^ise charged by averment 
 in the plea {e), as well as by answ^er to support 
 the pica (f). .Where the demand is of any thing 
 
 315 executory, as a note for payment of an annuity, or 
 of money at a distant period, or by instalments, 
 the defendant must aver that the cause of ac- 
 tion {g) hath not accrued within six years, because 
 the statute bars only as to what was actually due 
 six years before the action brought (Ji) (2). Up- 
 on a bill for discovery of a title, charging fraud, 
 and praying possession, the statute of limitations 
 
 {(l) See Andrews V. Broicn, Free. {g) 2 Strange, 1291.- 
 iaCiia. 385. ' ■' (A) 3 Atk.71. See above.p. 3J3, 
 
 (e) Anon. 3 Atk. 70. But this, note («). And see the case of ifony 
 
 according to Whithrcad v. Brock- v. Hony, 1 Sim. & Stu. 568, in 
 
 hurst, 1 Bro. C C. 404, would be a which the fact of ati intermediate 
 
 double plea. (1.) acknowledgment of the plaintiff's 
 
 (/) See on this subject, Bayley right having been made, defeated 
 
 V. Adams, G Ves. 586 ; 5 Madd. 330 ; the j^ea. 
 and 1 Si(n. & Stu. 6. . , 
 
 (1) [See Kane v. Blwdgood, '7 J. C. R. 90.] But see p. 312, n. 
 
 (2) Where a suit for an account of rents and profits has abated 
 before decree by the death of the plaintiff, and a bill of revivor is 
 not filed till a lapse of more than six years from the time of the 
 abatement, a plea of the statute of limitations,! Jac. l,c. 16, will be 
 overruled, if it does not state that six years have elapsed since repre- 
 sentation was taken out to the plaintiff. Perry v. Jenkins, 1 My. & 
 C. 118.
 
 .^ 
 
 S. II. p. II.] PLEAS. 315 
 
 alone is not a good plea to the discovery, so far as 
 the charge of fraud extends, for the defendant 
 must answer to the charge of fraud (i), and the 
 plea must put the fraud in issue (1). The statute 
 of limitations may be pleaded to a bill to redeem 
 a mortgage (k) (2) if the mortgagee has been in 316 
 
 possession twenty years (/) ; and indeed a demur- i"'^] 
 rer has been allowed in this case (m) where the 
 possession has appeared upon the face of the 
 bill (n), though some cases seem to be to the con- 
 trary (o) (4). To a bill, on an equitable title to 
 
 (t) Bicknell v. Gough, 3 Atk. ITVes. »7,99; 19Ve8. 184; 2 Jac. 
 
 558 ; 2 Sch. &- Lefr. 635. & W. 145, 187 ; and Bee Blewit v. 
 
 (k) On the question whether the Thomas, 2 Wes. Jan. Q69. 
 
 statute itself applies to a case of this (/) Aggas v. Pickerell, 3 Atk. 
 
 kind,.or whether the rule that twenty 225 ; 2 Ves. Jun. 280 (3). 
 
 years' posseBsion by the mortgagee, (m) 3 P. Wins. 287, note. See 
 
 subject to the usual exceptions of also 1 Vern. 418, and Beckford v. 
 
 infancy, Sec., without his doing any Tobin,&h. p. 213, n. ; 2 Sch. & Lefr. 
 
 act which is to be regarded as an 638. And see Hodl e v. Henley, 1 
 
 acknowledgment that the relation of Ves. & B. 536, and the cases therein 
 
 debtor and creditor still subsists, has cited. 
 
 been adopted iu courts of equity, in (n) Edaell v. Buchanan, 4 Bro. 
 
 conformity with the provisions of the C. C. 254. 
 
 statute, see 1 Cox, R. 149 ; 2 Sch. & (o) 3 Atk. 225, 226, and the au- 
 
 Lefr. 630, 632 ; 1 Ball &, B. 167 ; thorities there cited- 
 
 (1) [And see the decision of Chancellor Walworth, in Bogardus v. 
 Rector, <$-c., of Trinity Ch. 4 Paige's C. R. 178, There is no limi- 
 tation iu point of time, within which a bill for discovery in aid of 
 an action at law must be filed. Muni v. Scott, 3 Price, 477.] 
 
 (2) As a foreclosure suit is in substance a suit for the recovery 
 of the money secured by the mortfraje, the statute of limitations, 
 27 Will. IV. c. 27, 8. 40, may be pleaded to the bill. Dmrman v. 
 
 Wyche, 9 Sim. 570. 
 
 (3) [And see Elmendorf \. Taylor, 10 Wheat. 152.] 
 
 (4) It was formerly doubted, but now seems to be settled, that de- 
 fendant may demur on ground of lapsf* of timp, where it appears on 
 the bill, and need not set up that defence by plea. On bill for rents 
 and profits, where it appears on bill the premises have been held ad- 
 versely by defendant for over 20 years, defendant may demur : To
 
 316 PLEAS. [Chap. II. 
 
 presentation to a living, seeking to compel the de- 
 fendant to resign, plenarty for six months before 
 the bill was filed may be pleaded in bar, the sta- 
 tute of Westminster the second (2?) being consid- 
 ered for this purpose as a statute of limitation, in 
 bar of an equitable as well as of a legal right (q). 
 But if a quare imjjedit is brought before the six 
 months are expired, though the bill is filed after,, it 
 may be in some cases a ground for the court to in- 
 terfere (r), and consequently plenarty would not 
 in such cases be pleadable in bar. The statute of 
 limitations may also be pleaded to a bill of revivor, 
 if the proper representative does not proceed with- 
 in six years after abatement of a suit, provided 
 [273] there has been no decree (s) (1), for a decree being 
 ^17 in the nature of a judgment the statute of limitations 
 
 cannot be applied to it {t). But where the conse- 
 quence of reviving proceedings to carry a decree 
 into execution would have been to call on repre- 
 sentatives to account for assets after a sjreat length 
 of time, and under peculiar circumstances of laches, 
 
 (j)) 13 Edw. I. c. 5. (s) Hollingshead's case, 1 P. 
 
 (q) Gardiner v. Griffith, 2 P. Wms- 742 ; Combers case, 1 P. 
 
 Wms. 404 ; 3 Atk. 459 ; Boteler v. Wms. 766 ; 2 Sch. & Lefr. 633 ; 1 
 
 Allington, 3 Atk. 453. And see Ball & B. 531. 
 
 Mutler t. Cham-ell, 1 Meriv. 475. (0 1 P. Wms, 744 ; 2 Sch. <fe 
 
 (r) 2 P. Wilis. 405. Lefr. 633. 
 
 avoid which, if complainant come within any of the exceptions in the 
 statute of limitations, he must state the facts in his bill. Where concur- 
 rent remedy exists at law and in equity, time is as absolute a bar to 
 discovery or relief in equity as it would be in a suit at law, in analogy, 
 to the statute of limitations. Humbert et al v. Rector, dfC. of Trinity 
 Church, 7 Paiae's R. 198, 197, 195. And see Rhode Island v. Massa- 
 chusetts, 15 Peters, 21-2. 233. 
 (1) See note, p. 315.
 
 S. II. p. II.] PLEAS. 317 
 
 a bill of revivor and supplement for those purposes 
 was dismissed (w). Although suits in equity are 
 not within the words of the statute, the courts of 
 equity generally adopt it as a positive rule, and 
 apply it by parity of reason to cases not within 
 it (x) (1). In general they also hold that unless 
 
 («) Hercy v. Dinwoody, 4 Bro. C. Atk. 611 ; 3 Bro. C. C. 340, no'e ; 1 
 C. 257. Sch. & Lefr. 428. (2). ' 
 
 (x) Lofd Mansf. 2 Burr. 961 ; 2 
 
 (1) See Baldwin v. Peach, 1 Y. & C. Eq. Ex. 453, and note, p. 
 312. 
 
 A plea that the title of the plaintiff or of the person through whom riea of adverse 
 he claims accrued at a particular time, and that the possession of the specify the cir- 
 property and the receipts of the rents and profits thereof have been gtlulti'^'^sucb" 
 adverse to him, and the person tlirough whom he claims ever since possession, and 
 
 ° . deny possession 
 
 that time, will be overruled, if it does not set forth the circumstances of documento 
 constituting such adverse possession ; because adverse possession may same."^^"'^ 
 consist in various things ; and if none of these are specified, the plain- 
 tiflf may have no precise knowledge of the defence which he is to 
 meet. .And if a defendant puts in a plea of adverse possession, and 
 the bill specifically charges that the defendant has documents^in his 
 possession which prove certain facts, and such facts, if proved, 
 would tend to negative such adverse possession, the defendant 
 must, deny tlie possession .of those documents ; and if the bill 
 •contains any other statement or charge tending to negative |he plea 
 of adverse possession, such statement. or charge must.be denied. 
 Hardmanw. Ellames, 2 M. «fc K. 732. 
 
 But a plea of the statute of limitations need not negative the rioaofsutute 
 
 , ... . J of limitations 
 
 usual seneral allecration tiiat the deiendint has m Ins custody docu- need not nesa- 
 
 ments relating to the matters containel in the bill. Forbes v. Sk-Ilon, ie!,ation"as"to" 
 
 8 Srm.'a25. . • aorumcnt*. 
 
 ' Where a bill contain an allegation of matter which would remove Necessity of an 
 
 the h'gal bar of tlie statute of limitations, if the defendant pleads the o7a'^^eaof''ui'c' 
 
 legal bar, without fully nofrativing that aFegation by an answer, the statute of limita 
 
 plea will be nvprruled. Foley v. Ilill, 3 My. & C. 475. 
 
 (2) [The principles of the statute of limitations, as applied to suit.s 
 in equity, are recognised by the Revised t^tatutes of the State of New- 
 York. Before such express recognition, tliey received the same con- 
 struction and application. Kane v. Bloodgood, 7 J. C. R. 90 ; Stafford 
 V. Bryan, 1 Paige's C. R. 239 ; Berlins v. Varian, 1 Edwards' V. C.
 
 318 PLEAS. [Chap. IL 
 
 the defendant claims the benefit of the statute by 
 plea or answer he cannot insist upon it in bar of 
 
 Rep. 343 ; . Bogardus v. Trinity Church, 4 Paige's C. R. 178. Now, 
 it is expressly enacted that bills of relief from fraud are to be 
 brought within six years from the discovery. All other bills for relief, 
 of which law has not cognizance, within ten years after the cause has 
 accrued. There is a sweeping exception of cases connected with 
 disability ; and the provisions are qualified so as not to extend to suits 
 over the subject-matter of which a court of equity has peculiar and ex- 
 clusive jurisdiction, and which is not cogn-zable at law. 2 R. S. 301 ; 
 and see the case of Van Hook v. Whitlock, 3 Paige's C. R. 409. 
 
 In Kentucky, the construction of the statute of limitations to personal 
 actions in England is not recognised. Patterson v. Brown, 6 Monroe's 
 R. 10 ; but see the three next cases. The statute of limitations is a 
 bar in equity. M-Dowell \. Heath's executors, 3 A. K. Marshall's 
 (Kentucky) R. 223 ; Brackenridge v. Churchill, 3 J. J. Marshall's R. 
 16. It does not apply totidem verbis in equity, but has been adopted as 
 reasonable and consistent. Crain v. Prather, 4 lb. 77. This statute 
 operates as a bar to a suit in equity by its own force, and not by the 
 discretion or courtesy of the court. Farnam v. Brook?, 8 Pickering's 
 (Massachusetts) R. 212. It does not apply to direct trusts resulting- 
 from partnerships, agencies and the like. Actual fraud discovered, or 
 which the complainant had means of discovering, more than six years 
 before the commencement of the suit, will not take the case out of the 
 statute. lb. The statute of limitations receives the same construc- 
 tion, in analogous cases, in equity as at law. Lindsay v. Bell, Fin- 
 lay's (Irish) Index, 368. And it is a good plea in bar, in equity as 
 well as at law. lb. When a delay has been such as to.be a bar at 
 law, it will be so in equity. Banks v. Judah, 8 Day's (Connecticut) 
 R. 145 ; and see McLaren v. Pennington, 1 Paige's C. R. 100. Same 
 principle in the United States courts. Elmendorf v. Taylor, 10 
 Wheat. 152; Miller v. M'Intyre, 6 Peters, 61. If equity were to 
 adopt as a general rule, that no lapse of time would preclude its inter- 
 ference, it would introduce a principle that must work infinite mischief 
 to the peace and safety of families. Stratford v. Lord Aldborough, 1 
 Beatty's (Irish) R. 236. Yet see Ellis v. Deane'l lb. 21. A bill 
 filed by one creditor on behalf of himself and the others, will prevent 
 the statute of limitations from running against any of the creditors 
 who come in under the decree. Slerndale v. Hankinson, 1 Sim. 363. 
 
 The statute of limitations, notwithstanding it is a defence at law, 
 may be pleaded to a bill of discovery in aid of an action brought, pro- 
 vided it has been pleaded to the declaration. If the action was com- 
 menced before ti.e bill was filed, the plea mu>t aver that the cause of
 
 9. II. P. II.] PLEAS. 318 
 
 the plaintiff's demand (y) ; but notwithstanding, 
 the courts will, in cases which will allow of the 
 exercise of discretion, use the statute as a rule 
 to guide that discretion (z) ; and will also 
 
 (y) 1 Atk. 494. (1). but, in respect of equitable titlea and 
 
 (z) 1 Atk. 494. Courts of equity, demands, are only influenced iii their 
 
 it seems, in respect of legal titles and determination by analogy to it. 1 
 
 demands, are bound by the statute, Sch. & Lefr. 428 ; 2 Sch. «fc. Lefr. 
 
 a Sch. &. Lefr. 630, 631 ; and see 632 ; 10 Ves. 466 ; 15 Ves. 496 ; 17 
 
 Hony V. Hony, 1 Sim. & Stu. 568 ; Ves. 97; 1 Ball & B. 119, 166; 2 
 
 action did not accrue within six years before the action was brought. 
 Macgregnr v. The E. I. Company, 2 Sim. 452. Jt is a settled prin- 
 ciple that equity follow tiie law ; and acting in obedience to the 
 statute of limitations, the plea thereof is as available in equity as at 
 law, in relatioti to tiie same subject-matter. Watkins v. H'incond,2 
 Gill & Johns. 307 ; Corroll v. Waring, 3 lb. 491. That is, where, as 
 between individuals at law, it would have been a bar ; and if the fact 
 is on the bill, and no c ircumstances stated to take it out of the opera- 
 tion of the act, defendant is not bound to plead or an-wer, but may de- 
 mur. Rhode Island v. Massachusetts, 15 Peters, 272, 233 ; Coulson v. 
 Watson, 9 Id. 62. 
 
 The law of courts of equity, or rule adopted independently of any 
 positive legislative limitations, is, tliat it will not entertain stale de- 
 mands. Piaft V. Fa/^ier, 9 Peters, 415, 416. 'J'he rule on this subject 
 must be considered as settled in that case, and nothing can call a 
 court of chancery into activity, but conscience, go id faith and reasona- 
 ble diligence. McKnight V. Taylor, I Howard, R. 161. 167-8; Bow- 
 man V. Wathen, Id. 189. 193-4. 
 
 Every new right of action in equity, that accrues to a party, what* 
 ever it maybe, must be acted upon at the utmost within 20 years. 
 Ibid. This is kid down by Lord Redesdale, 2 Sch. &. Lef. 636) ; ae 
 the common law of courts of equity. Ibid. 1 How. 193-4. 189. The 
 etatute of limitations may be interposed against legacies, if not 
 charged upon tiie land, as well in equity as at law. Souzer v. De 
 Meyer, 2 Paige's C. R. 574. 
 
 If a sufficient lapse of time to create a bar appnars upon the bill, 
 there is no occasion to support such a plea with an answer. Carroll 
 V. Wari'g, 3 Gill Si Johns. (Maryland) R. 491. The statiife of limi- 
 tations may be a bar to a suit in equity by one partner against another 
 for an account and settlement of the joint concern. Atwaler v. Fowler, 
 I Edwards' V. C. R. 417.] 
 
 (1) [Dey v. Dunnam,2i. C. R. 191 ; 3 J. J. Marshall's R. 186.]
 
 318 PLEAS. [Chap. II. 
 
 sornotimes resort to the policy of the ancient 
 ["'^J law, which in many cases limited the de- 
 mand of accruing profits to the commencement of 
 the suit (a). 
 
 Plea of some , ,. i • i i i 
 
 other statute, Any othcr public Statute which may be a bar to 
 
 whethergeneral j i j 
 
 or particular. ^^ demands of the plaintiff may be pleaded, with 
 the averments necessary to bring the case of the 
 defendant 'within .the statute, and to avoid any 
 equity which may be set up against the bar created 
 by the statute (Z»). 
 
 A particular statute may also be pleaded in the 
 same manner. Thus, to a bill impeaching a sale 
 of lands in the fens by the conser\^ators under the 
 statutes for draining the fens, the defendant plead- 
 ed the statutes, and that the sale was made by 
 virtue of and according to those statutes, and the 
 plea was allowed (c). 
 
 equal rfght"in° X. Supposiug a plaiutiff to haVe a full title to the 
 
 the defendant to,.^, iiiVl 
 
 theprotectionof relief he prays, and the defendant can setup no 
 
 ■she court ; - \. J ' * 
 
 defence in bar of that title, yet if the defendant has 
 an equal claim to the protection of a court of equity 
 to defend his possession, as the plaintiff has to the 
 assistance of the court to assert his right, the court 
 will not interpose on either side (^). This is par- 
 
 Jac. & W. 163, and following pages, & Bea. 354; and another example 
 
 particularly p. 175, and 2 Jac. & W. of the proposition in the text, Ockle- 
 
 192. stone v. Benson, 2 Sim. & Stu. 265. 
 
 (o) On this subject see Pulteney, And see De Tastet v. Sbarpe, 3 
 
 V. Warren, 6 Ves. 73 ; Pettiward v. Madd. 51. 
 Prescott, 7 Ves. 541. (c) Brown v. Hamond, 2 Ch- 
 
 (h) See instances of a plea of the Ca. 249. 
 statute of maintenance, 32 Hen. (rf) (1) See 2 Ves. Jun. 457,458, 
 
 Vni. c. 9, s. 3, Hitchins v. Lander, and the authorities there referred to ; 
 Coop R. 34; Wall v. Stubbs,^ Ves. 
 
 (1) See the form of such a plea, Willis, 566.]
 
 S. II. p. II.] PLEAS. 319 
 
 ticularly the case where the defendant claims under f ^r^hasr'of 
 a purchase or mortiraffe for valuable consideration "a^ulbirconlid. 
 
 ^ oration, without 
 
 without notice of the plaintiff s title, which he may °°ti'=«- 
 plead in bar of the suit (e) (1). Such a plea must [275] 
 aver that the person who conveyed or mortgaged 
 to the defendant was seised in fee, or pretended to 320 
 
 be seised (/) (3), and was in possession (g), if the 
 
 and SCM-. the case of Gait v. Osbal- 7f)3 ; Sfrode v. lilackliourne, 3 Yes. 
 
 destoTi,3 Midd. 428; S. C. 1 Russ. 222; Wallwyn v Lre,-^ Ves. 24; 
 
 R. 158. Cue exception has however 1 Ball & B. 171; 2 Ball & B. 
 
 been made in £avor. of a dowress, see 303. (2). 
 
 Williams v. Lambe, 3 Bro. C. C. (/) 3 P. Wms. 281 ; Stoty v. 
 
 264 ; Payne v. Compion, 2 Younge Lord Windsor, 2 Atk. 630 ; 17 Ves. 
 
 «fe Coll. 4S7; Wood v. Mann, 2 250., ^ 
 
 Sumuer C G. Rep. 507, 508. (g) Trevanian v. Mosse, I Vera, 
 
 (e) Fitzgerald v. Bark, 2 Atk. 246 ; 3 Vea. 226 ; 9 Ves. 32 ; 16 
 
 397 ; Story v. Lord Windsor, 2 Ves. 252. 
 Atk. 630 ; Bullock v. Sadler, Ambl. 
 
 (1) It is not Bufficieiit for a defendant claiming to be a hi ^na fide pur- 
 chaser for valuable consideration without notice, to Heny personal know- 
 ledge of the hiatters charged, without denying notice, before his contract. 
 He must deny notice, even though it be not charged ; and he must deny 
 it po-sitively, and not evasively ; he mu.<t even deny it fully, and, in the 
 most precipe terms, every circumstance from wliich notice could be 
 inferred. Wilson v. HiUyer and Dunn, Saxton's (\. J.) Ch. II. 63. 
 Gordon v. Rockafellow. • Opinion of Ch. VVilliamBon, see Ilalsted's 
 Dig., %\ Ed. vol. 1, p. 226." 
 
 (2) The consideration of marriage will support a plea of purchase 
 for valuable consideration, without notice, equal 'y with a price paid in 
 money. Jackson v. Rowe, 2 S. & S. 472. 
 
 A plea of a purchase for valuable consideration, without notice, is 
 no protection against an adverse title which would h ive become known 
 to the purchaser, if he had used reasonable diligence in the investiga- 
 tion of the title. lb. 
 
 (3) A plea of a purchase for valuable consideration without notice 
 must show that if the vendor or settlor had not a good title, the party 
 purchasing was iinpospd on at the time of iiis purchase. And hence 
 if a plef. of this kind is put in by the heir at law of one who became a 
 purchaser of his wife's estate for a valuable consideration or under a 
 prenuptial settlement, the plea naust aver that the wife was seieed, or
 
 320 PLEAS. [Chap. II. 
 
 conveyance purported an immediate transfer of the 
 possession at the time when he executed the pur- 
 chase or mortgage-deed (h). It must aver a con- 
 veyance, and not articles merely (i) ; for if there 
 are articles only, and the defendant is injured, he 
 may sue at law upon the covenants in the arti- 
 cles (k). It must aver the consideration (Z) and 
 actual payment of it ; a consideration secured to 
 be paid is not sufficient (m). The plea must also 
 deny notice (n) of the plaintiff's title or claim (o), 
 [276] previous to the execution of the deeds and payment 
 "^I- of the consideration (p) ; and the notice so denied 
 
 must be notice of the existence of the plaintiff's 
 title, and hot merely notice of the existence of a 
 
 (A) 3 P. Wme. 281. As to the Atk. 814. 
 
 case where the purchase is of a re- (n) Ou the subject of notice, ac- 
 
 version, see i/wg-^es V. Gar/ A, Ambl. tual and constructive, see Sugden's 
 
 421 ; S.C.2 Eden R. 168. Ven. & Purch. 6th ed. 710. 
 
 (t), Fitzgerald v. Lord Falcon- (o) Lady Bodmin v. Vandebendy, 
 
 bridge, Fitzg. 207 ; 1 Atk. 571 ; 3 1 Vern. 179 : Jones v. Thomas, 3 
 
 Atk. 377. P. Wms. 243 ; Kelsall v. Bennet, 1 
 
 (i) 1 Atk. 571. Atk. 522. 
 
 (I) 1 Ca. in Cha. 34; Millard's (/)) Jtfore v. Jtfay^oir, 1 Ca.inCha. 
 
 Caae, 2 Freem. 43 ; Brereton v. 34; S. C. 2 Freem. 175 ; 1 Eq. Ca. 
 
 Gamnl, 2 Atk. 240. Ab. 38, 334 ; Tourville v. Naish, 3 
 
 (m) Hardinghum v. Nicholls, 3 P. Wms. 307 ; 1 Atk. 384 ; 2 Atk. 
 
 Atk. 304; Maitland v. Wilson, 3 63 1 ; 3 Atk. 304.. 
 
 pretended to be seised, not only before, but af the respective times of 
 the execution of the marriage .'>etllement and of the marriage. Jack - 
 son V. Rowe, 4 Russ. 514. In this case, however, where the words 
 '' and at" were omitted after the word " before," by a mere slip, Lord 
 Lyndhurst, C, allowed the plea to be amended by inserting them, 
 Bubject to the making of an affidavit of that fact, if required by the 
 plaintiff. As to the plea of purchase for valuable consideration with- 
 • out notice, see further JeweU v. Palmer, 7 J. C. R. 65 ; High v. Battle, 
 10 Yerger's (TenYi.) R. 385; 1 Hoff. Ch. R. 153, \63:Flagg v. Mann, 
 2 Sumner's C. C R. 557 ; Donnell v. King, 7 Leigh's (Va.; Rep. 393 ; 
 Snelgroie v. Snelgrove, 4 Desaus. Eq. R. (So. Ca.) 287.
 
 S. II. p. II.] PLEAS. 3^1 
 
 person who conid claim under that title (q). If 
 particular instances of notice, or circumstances of 
 fraud are charged, they must be denied as specially 
 and particularly as charged in the bill (r). The 
 special and particular denial of notice or fraud must 
 be by way of answer, that the plaintiff may be at 
 liberty to except to its sufficiency (s) ; but notice 
 and fraud must also.be denied generally by way of 
 averment in the plea, otherwise the fact of notice 322 
 
 or of fraud will not be in issue (t). Notice or fraud [277] 
 thus putin issue, if proved, will effi:^ctually open 
 the plea on the hearing of the cause. 
 
 iq) 1 Alk. 5:22. And it must not (s) ^non. 2 Ca. in Cha» 161 ; Price 
 
 appear that the defendant, though he v. Price, I Vera. 125; 6 V'es. 596; 
 
 should c]aini as purchaser under a 14 Ves. GG. It has been lately de- 
 
 settleraent executed at the time of clared, that it is not the office of the 
 
 his marriage, might have had notice plea to denyparlicular facts of notice; 
 
 of tl>e plaintiff's tille by using due but that .it is sufficient, where sudi 
 
 diligence ia the investigation of his facts are alleged, to make a general 
 
 own; Jackson V. Rnwe, 2 ti\n}.&Stu. denial wjiich will include construct- 
 
 472; and see Hamilton v. Royse, 2 ive as well as actual notice: yet that 
 
 Schr & Lefr. 315 ; 13 Ves. 120 ; 14 if circumstances be specially charged 
 
 Ves. 433; 6 Dow. P. C. 223, 224; 6 as evidence-of notice, they must be 
 
 Madd. 59. denied by averments in the plea, and 
 
 (r) Radford v. Wilson, 3 Atk. by an answer accompanying the 
 
 815; 2 Ves. 450; Jarrard v. Saun- same. P9itnington v. Beechy, 2 Sim. 
 
 ders, 2 Ves. Jun. 18.7; S. C. 4 Bro. & Stu. 282 (1). 
 
 C. C. 322. . (t) Harris v. Ingledevs, 3 P. Wms. 
 
 (1) Mr. Justice Story in the third edition of his Equity Pleading, p. 
 -804, makes the following remark in reference to this note of Mr. Jere- 
 my : " 1 do not understand the vice-chancellor in that ca*e to have held, 
 tl^at the special matters, charged as evidence, should be specially denied 
 by averments in the plea as well as in the answer ; but only that to re- 
 quire an answer to accompany the plea, the matters should be specially 
 charged in the bill ; and should also be specially charged as evidence of 
 notice of the title of the plaintiff. 8ee on this last point, the remarks 
 of Mr. VVigram, in his points of discovery, 169-181, 1st Kd. IJ. 14'2- 
 171. Id. 185, 186, 2d Ed. See also Phelps v. Sjiroule, 1 Myl. &. Keen, 
 231 ; Cork v. Wilcock, 5 Madd. R. 328, on the same point."
 
 828 
 
 PLEAS. 
 
 [Chap. IL 
 
 [278] A purchaser with notice, of a purchaser without 
 
 94 ; 3 P. Wms. 244, note. Gilb. For. 
 Rom. 58 ; Treat, of Frauds, c. 18, p. 
 220. In the case of Meadows v. 
 Duck, of Kingston, Mich. 1777, 
 {S. C. reported Ambl. 756,) the Chan- 
 cellor" seemed to be of opinion, that 
 notice and fraud were to be denied by 
 way of averment in the plea, in cases 
 only where the denial made part of 
 an equitable defence ; as in a plea of 
 purchase for valuable consideration, 
 the denial of notice must be by way 
 of averment in the plea, because the 
 want of notice creates the equitable 
 bar. But in Devie and Chester, in 
 Chan. March 10th, 1780, a decree 
 establishing a modus having ' been 
 pleaded to a bill for tithes, in which 
 the plaintifF stated that the defen- 
 dants set up the decree as a bar to 
 his claim, and to avoid the effect of 
 the decree charged that it had been 
 obtained by collusion, and stated facts 
 tending to show collusion ; the Chan- 
 cellor was of opinion, that the defen- 
 dants not having by averments in the 
 plea denied the collusion, although 
 they had done so by answer in sup- 
 port of the plea, the plea was bad in 
 form, and he overruled it accordingly. 
 And in Hoare and Parker, in Ch 
 17th and 19th of Jan. 1785, (reported 
 1 Bro. C. C. 578 ; S. C. 1 Cox, R. 
 244,) the plaintiffi having brought 
 their bilf as trustees, claiming quanti- 
 ties of plate described in a schedule 
 annexed to the bill, of which the use 
 
 had been given by the will of Admi- 
 ral Stewart to his widow for her life, 
 and after her death to his son and 
 his issue ; against the defendant, a 
 pawnbroker, with whom the plate, or 
 part of it, was alleged to have been 
 pledged by the widow ; and the bill 
 having sought a discovery of the par- 
 ticular pieces of plate pawned, in 
 order to found an action of trover, 
 the defendant pleaded to so much of 
 the bill as sought a discovery of the 
 plate .pawned, as after mentioned in 
 the plea, and of the plate specified in 
 the schedule annexed to the bill, that 
 Mrs. Stewart had pledged divers arti- 
 cles of plate at several times stated in 
 the plea, for sums of money specified 
 in the plea, which sums the defendant 
 averred were paid to Mrs. Stewart; 
 and he also averred that he had no 
 notice of the will of Admiral Stewart 
 till after the death of Mrs. Stewart; 
 but he did not aver by his plea that 
 he had no plate pawned with him by 
 Mrs. Stewart besides the pieces 
 pawned at the particular times men- 
 tioned in the plea, although he did by 
 his answer deny that he had any 
 other. The chancellor was of opin- 
 ion that th^ plea was therefore defec- 
 tive in point of form, as it extended 
 to all the plate mentioned in the 
 schedule of which a discovery was 
 sought by the bill. See 6 Ves. 595, 
 597; and see p. 280, et seq. (1) 
 
 (1) [Smzer v. De Meyer, 2 Paige's C. R. 574. Lord Chancellor 
 LifFord, (in Lord Drogheda v. Malone, Finlay's Digest, 449) has thus 
 illustrated a plea of valuable consideration ; "with re?pect to purcha- 
 •'sers for valuable consideration, the early cases were crude and not 
 " sufficiently guarded, but it is now established, that such a purchaser, 
 " without notice, shall protect himself from relief and discovery by this
 
 S. II. p. II.] PLEAS. 388 
 
 notice, may shelter himself under the first purcha- 
 ser {t). But notice to an agent is notice to the 
 principal (u) ; and where a person having notice 
 purchased in the name of another who had no no- 
 tice, and knew nothing of the purchase, but after- 
 wards approved it, and without notice paid the pur- 
 
 (<) Brnndlyn v. Ord, 1 Atk. 571 ; 329 ; Jackson v. McChesney, 7 Cow- 
 
 Lowther v. Carlton, 2 Atk. 1^9 ; eji-'s K. 360. 
 
 -S. C. 2 Atk. 242 ; Ca. t. Thlb. 187 ; (a) Brotherton v. Halt, 2 Vern. 
 
 2 Eq. Ca. Ab. 685 ; Sweet v. South- 574 ; Le Neve v. Le Neve, 3 Atk. 
 
 cote, 2 Bro. C C. 66 ; Ambl. 313 ; 646 ; 1 Ves. 62 ; 2 Vcs 62, 370 ; 13 
 
 11 Yes. 478; 13 Ves. 120; and see Ves. 120; Mounlford v. Scott, 3 
 
 Harrison v. Forth, Free, in Cha. 51 ; Madd. 34. 
 Varick v. Briggs, 6 Paige's Cli. Rep. 
 
 " sort of plea ; and upon this principle, that all men who stand on equal 
 " ground shall have eqnal equity, because the court cannot do anything 
 "for one, without injuring the other. No title can be better Uian tlie 
 "title of such a purchaser: particularly where the consideration is 
 " marriage. If he has a legal title, the court cannot interpose. Several 
 ".circumstances are now required to substantiate this si rt ot plea, 
 " which, at first, were not attended to. I. That the party with whom 
 " such purchaser has dealt, should be seised, or pretended to be seised, in 
 " fee and this must be averred. 1 Vern. 246. If. That he is the visible 
 •* and reputed owner. HI. That the purchaser shall purchase for valu- 
 " able consideration. There are two sorts of valuable considera'ion : 1. 
 "Money; 2. Marriage. With respect to monpy — it ougiit to be paid 
 "at the time. With respect to marriage — it is certainly a valuable 
 " consideration, and the moment the marriage is celebrate I, the con- 
 " sideration is paid. IV. That there shall be no notice e.xp-ess or im- 
 " plied of any fraud committed by the person with whom the purcliaser 
 "deals.. He must show that he has been dilgent, and tlien he will 
 "appear innocent and may protect himself. The great end of equity 
 "and all institutions of justice is to make property eafo and to render 
 '' it secure. If a purchaser has notice, he throws away his money 
 •' wilfully. 1 Atk. He acts contrary to good conscience, for he ought 
 " not to interfere with any man's right : these circumstances should all 
 "concur. As to pleas in general: 1. A plea must be such as not to 
 " cover too much, and this sort of plea particularly should niit cover 
 •'more than the purchase for valuable consideration cover*. With 
 " respect to all such overplus it is bad : it cannot cover any fraud in 
 "the purchaser himself, &c., &r."]
 
 828 PLEAS. [Chap. II. 
 
 chase-money, and procured a conveyance, the 
 person first contracting was considered from the 
 beginning as the agent of the actual purchaser, who 
 was therefore held affected with notice (x). A 
 settlemeht in consideration of marriage is equiva- 
 lent to a purchase for a. valuable consideration («/), 
 and may be pleaded in the same manner (z). If a 
 [279] settlement- is made after marriage in pursuance of 
 324 an agreement before marriage, the agreement as 
 
 well as. the settlement must be shown (z). A wi- 
 dow, defendant to a suit brought by any person 
 claiftiing under her husband, to discover her title to 
 lands of which she is in possession as ber jointure, 
 may plead her 'settlement in bar Jo any discovery, 
 unless the plaintifT offers^, and is able, to confirm 
 her jointure. But a plea of this nature* must set 
 forth the settlement, and: the lands comprised in it, 
 .with' sufficient certainty (a). A plea of purchase 
 for a valuable consideration protects a defendant 
 from giving any answer. to a title set up by the plain- 
 tiflf, but a plea of bare title only, vv'^ithout. setting 
 forth, any consideration, is not sufficient for that 
 purpose (h). Upon a plea of purchase for a valu- 
 able consideration to a discovery of deeds and wri- 
 tings, the purchase-deed must be excepted, for it 
 is pleaded (c). 
 
 (x) Jennings V.Moore, 2 Vem. 609; (z) Lord Keeper v. Wyld, 1 Vern. 
 
 S. C. on appeal under title Blenkarne 139. 
 
 V. Jennens, 2 Bro. C. C 278, Toml. (a) Petre v. Pelre, 3 Atk. 511 ; 3 
 
 Ed.; Cootev. Mammon, 5 Bto.F.C. Atk. 571; 2 Ves- 450; Leech v. 
 
 355, Toml. Ed. , Trollop, 2 Ves. 662. As to the case 
 
 (y) 1 Atk. 190; 6 Ves. 659; 18 of a dowress plaintiff, see above, p 
 
 Ves. 92 ; 6 Dow P. C. 209 ; 2 Sim. & 319, note (d). 1 Ves. Jim. 76. 
 
 Stu. 475. (6) 2 Atk. 241. 
 
 (z) Harding v. Hardrett, Finch, (c) S Ves. 107. 
 R. 9.
 
 S. II. p. II.] PLEAS. 324 
 
 A plea of purchase for a valuable consideration 
 without notice of the plaintiff's title to a bill to 
 perpetuate the testimony of witnesses, has been al- 
 lowed, though there are few cases in which the 
 court will not give that assistance to the furtherance 
 of justice. Thus, to a bill to perpetuate the testi- 
 mony of witnesses to a will the defendant pleaded [280] 
 purchase for a valuable consideration, without no- 
 tice of the will, and the plea was allowed (r) (1). 
 But in this case, as reported, there appears to have 
 been nothing to impede the plaintiff's proceeding 325 
 
 at law to assert his title undef the will, ajjainst the 
 defendant's possession, and there was apparently 
 therefore no equity to support the bill (^). 
 
 XI. Though a plaintiff may be fully entitled to ll^l^^.^*^"- 
 the relief he prays, and the defendant may have 
 no claim to the protection of the court which ought 
 to prevent its interference, yet the defendant may 
 object to the bill if it is deficient to answer the 
 purposes of complete justice. This is usually 
 for want of proper parties ; and if the defect is 
 not apparent on the face of the bill (e), the defen- 
 dant may plead the matter necessary to show it 
 
 (c) Bechiiial v. Arnold, 1 Vern. P. C. 362, Toral. Ed. ; 2 Ves. Jun. 
 354. 458. 
 
 {(l) See also Ross v. Close, 5 Bro. (e) 16 Vee. 325. "^ 
 
 (1) The question sometimes arises as to who is to be treated as a 
 bond fide purchaser in the sense of the rule ; and it has been held that 
 a judgment creditor by elegit is not entitled to be deemed such ; but he 
 takes only such rights in the premises as the judgment debtor right- 
 fully possessed. Thus, for e.\ imple, a judgment creditor cannot hold 
 an estate subject to an equitable mortgage, by an elegit executed on 
 the estate of the debtor mortgagor, except subject to such equitable 
 mortgage, although he had no notice of the mortgage at the time of 
 the elegit. 3 Hare's Rep. 416 ; 2 Story's Eq. Juris. {. 1603. 
 
 27
 
 326 PLEAS. [Chap. 11. 
 
 (/) (1). A plea of want of parties goes both to 
 discovery and relief where rehef is prayed {g), 
 though the want of parties is no objection to a bill 
 
 (/) Hanne v. Stevens, 1 Vern. (g) 2 Alk. ol,\n Pluiiket v. Pen- 
 110; Ashurst v. Eyre, 2 Atk. 51 ; son, wherein this plea is termed a 
 -S. C. 3 Atk. 341. plea in bar ; but see 6 Ves. 594 ; 16 
 
 Ves. 325. 
 
 (1) [Mitchell v. Lenox, 2 I'aige'd C. 11. 289; M'Kinley v. Combe, 
 1 Mon. 107; We^t v. Saunders, \ Marsh. 110; Seethe form of a 
 plea for want of parties, Willis, 571, and see note there ; Edwards on 
 Parties, 292. J 
 
 A plea for want of parties must be to the entire bill. Parke v. 
 Black, 1 Hogan, 70 ; and see tha cases, which appeared to make the 
 practice doubtful, there reviewed.] 
 
 Where a plea is put in fur want of parties, on the ground that cer- 
 tain persons not named parties claimed adversely, such persons alle- 
 ging certain facts as the ground of their claim ; and the p'ea does not 
 state that those facts are true, but, by admitting the statements in the 
 bill, admits indeed that those facts are falsely alleged, it cannot be sus- 
 tained. Birch V. GougJi, 3 Jur. 769, V. C. E. 
 
 Where a 1 ill is tiled in respect of a legacy given' to a class of chil- 
 dren, to vest at twenty-one or marriage, a plea that the representative 
 of a deceased child is a necessary party, will be overruled, if it does not 
 show that such child had attained a vested interest. Oierlon v. 
 Banister, 4 Beav. 205. 
 
 A plea that an equitable mortgagee by deposit of title deeds is not 
 a party, will be overruled, if it does not state with whom they were 
 deposited, but only leads to an inference that they were deposited 
 with a certain person ; for if this person were made a party, the de- 
 fendant might again object that some other person in whose hands 
 the deeds then were, is a necessary party. Henley v. Stone, 4 Beav. 
 389. 
 
 A second plea for want of parties is allowable, where by an amend- 
 ment of the bill subsequent to the first plea, the plaintiff brings for- 
 ward additional matter which shows that the persons mentioned in the 
 second plea are necessary parties, in addition to those mentioned in 
 the first plea. Henley v. Stone, 4 Beav. 389. 
 
 Where a bill seeks a discovery whether there are any incum- 
 brancers, and who they are, the very nature of the bill precludes 
 the defendant from pleading to the bill, on account of those incum- 
 rancers not being made parties. Rawlins v. Daltvn, 3 Y. &, C. Eq^. 
 Ex. 447.
 
 S. II. p. II.] PLEAS. 326 
 
 for a discovery merely {h). Where a sufficient 
 reason to excuse the defect is suggested by the bill, 
 as where a personal representative is a necessary 
 party, and the bill states that the representation is 
 in contest in the ecclesiastical court (i), or where [2811 
 the party is resident out of the jurisdiction of the 
 court (k), and the bill charges that fact, or where a 
 bill seeks a discovery of the necessary parties (/), 
 an objection for want of parties will not be allowed, 
 unless, perhaps, the defendant should controvert 
 the excuse made by the bill by pleading matter to 
 show it false (1). Thus, in the first instance, if 
 before the filing of the bill the contest in the ec- 
 clesiastical court was determined, and administra- 
 tion granted, and the defendant showed this by 327 
 plea, perhaps the objection for want of parties 
 would be in strictness goo3. Upon arguing a plea 
 of this kind, the court, instead of allowing it, has 
 given the plaintiff leave to amend the bill upon 
 payment of costs {tn) (3) ; a liberty which he may 
 
 (A) Sangona v. E. I. Comp. 2 Eq. (m) Stafford v. City of London, - 
 
 Ca. Ab. 170. 1 P. Wm8. 428 ; and where the plea 
 
 (i) See 2 Atk. 51, in Plunket v. was defective in point of form, in not 
 
 Penson. stating that additional parties were 
 
 (k) Cowslad. v. Cely, Prec. in necessary, and naming them, leave 
 
 Cha. 83 ; and see Haddock v. Thoni- was given to amend the plea. Mer- 
 
 /t'/ison, 2 Sim. & Stu. 219, and above, rewether v. Mellish, 13 Vee. 435. 
 
 p. 191, note. See 11 Ves. 369 ; 16 Ves. 323 (2). 
 (I) See Bowyerv. Covert, 1 Vern.95. 
 
 (1) [Milligan v. Milledge, 3 Cranch,220.] 
 
 (2j [It seems, that leave will not be given to amend a plea, unless 
 the court is eatiefied the defect, which ti;e amendment ie intended to 
 remedy, arose from an accidental slip. And even in such a case an 
 aflSdavit will be required, provided the opposite party require it. Jack- 
 son V. Rowe, 4 Ruse. 614.] 
 
 (3) [Cook V. Mancius,^]. C. R. 427.]
 
 Tery. 
 
 828 
 
 327 PLEAS. [Chap. II. 
 
 also obtain after allowance of a plea, according to 
 the common course of the court ; for the suit is 
 not determined by allowance of a plea as it is by 
 allowance of a demurrer to the whole of a bill (ii). 
 Pleas to disco Haviug thus considered all the objections to a 
 bill which have occurred, as extending to relief, and 
 w^hich likewise extend to discovery (1) wherever it 
 is merely sought for the purpose of obtaining re- 
 [282] lief, and can have no other end, it remains to treat 
 of such objections as are grounds of plea to dis- 
 covery only. These are nearly the same as those 
 v^^hich have been already mentioned as causes of 
 demurrer to discovery. They may be, I. That the 
 plaintiff's case is not such as entitles a court of 
 equity to assume a jurisdiction to compel a disco- 
 very in his favor ; II. That the plaintiff has no 
 interest in the subject, of no interest which entitles 
 him to call on the defendant for a discovery ; III. 
 That the defendant has no interest in the subject 
 to entitle the plaintiff to institute a suit against 
 him even for the purpose of discovery only ; IV. 
 That the situation of the defendant renders it im- 
 proper for a court of equity to compel a disco- 
 very (2). 
 
 (n) See below, original page [304]. 
 
 Plea to disco- (1) Where a bill alleges the plaintiff's title to an estate, and prays 
 reUef. ^ *^ *" account of the rents and a discovery of documents, and the 
 defendant pleads, in bar to the relief, that he is the party entitled, 
 and pleads to so much of the discovery as r&qnires an account of the 
 rents and a discovery of documents relating to the rents, and in his 
 answer sets forth a list of all documents except such as relate exclu- 
 sively to the rents, his plea will be overruled : for such documents 
 may contain information which may go to prove the plaintiff's title. 
 Rigby V. Rigty, 10 Jur. 126, V. C. E. 
 
 (1) The statute of limitations may be pleaded to a bill of dis-
 
 S. II. r. II.] PLEAS. 329 
 
 I. If the plaintiff's case is not such as entitles oVKdictkl^* 
 a court of equity to assume a jurisdiction to com- 
 pel a discovery in his favour, though he falsely 
 states a difToreut case by his bill, so that it is not 
 liable to a demurrer, the defendant may by plea 
 state the matter necessary to show the truth to the 
 court (n) (1). 
 
 (n) But if a plaintiff who is bauk- payment of tiie balance to him, it 
 
 rupt, in a bill filed by him to obtain would overrule a plea of that fact so 
 
 discovery in aid of his defence to an far as to give him the discovery, and 
 
 action, and Icr an account, and au even to have the accounts taken, 
 
 injunction in the mean time, should Lowndes v. Taylor, 1 Madd. R. 423 ; 
 
 avoid stating his bankruptcy, al- S. C. 2 Rose, 365. See above, p. 81, 
 
 though this court, it seems, would note, 
 not afford him relief by decreeing the 
 
 covery in aid of an action of assumpsit, provided it has been Plea of etamte 
 pleaded to the action. Macgregor v. East India Company, 2 Sim. a bill of diacoT- 
 
 'aM ery in aid of ao 
 
 action of aa- 
 And such a plea need 'not deny the usual allegation as to books sumpsit, 
 
 and papers in the possession or power of the defendant, from which 
 
 the truth of the matters in the bill would appear, unless there is an 
 
 allegation or charge that there has been a promise or acknowledgment 
 
 evidenced by a writing within six years. lb. 
 
 The statute of limitations may also be pleaded to a bill of discovery or ejectment, 
 in aid of an action of ejectment. Scott v. Bradwood, 2 Coll. 447. 
 
 Where a bill of discovery is filed in aid of a plea to an action for PJeato " bill of 
 
 ■' •^ discovery in aid 
 
 libel, pending a demurrer at law to that plea, and the defendant in of a plea to an 
 , 11-,, • 1 I r 1 1 action for libel, 
 
 equity puts in a plea to the bill, stating the pendency ol such demurrer 
 
 at law, and averring the invalidity of such plea at law ; the plea to the 
 
 bill will be allowed, notwithstanding the possibility that the court of 
 
 law may allow the plea at law to be amended ; for, in such case, there 
 
 is no actual proceeding at law in which the discovery, if obtained, can 
 
 be used. Stewart v. Lord Nugent, 1 Keen, 201. 
 
 A plea that an action for libel has been discontinued and is at an piea of the di«- 
 
 end, is no defence to a bill for a discovery and commission in aid of a a°°ac"i^^^f, la 
 
 plea of iustification to the action, inasmuch as the defendant in equity ofthedefenceto 
 
 r •> * •' which bill of 
 
 might commence another action. But upon the defendant afterwards discovery i» filed 
 undertaking not tu bring any other action, and to pay the costs of the 
 suit, all further proceedings will be stayed. Wilmot v. Muccabe, 4 
 Sim. 1:63. 
 
 (1) [For the form of a plea to the jurisdiction, where a discovery 
 is sought in a.d of another court of competent jurisdiction, see Willis, 
 574.]
 
 329 PLEAS. [Chap. II. 
 
 [283] II. If a plaintiff by his bill states himself to have 
 of ^iereeu^tho ati intcrcst which entitles him to call on the defend- 
 right to su/. ° ant for a discovery, though in truth he has no such 
 interest, the defendant may by plea protect himself 
 from making the discovery, which may involve 
 him in difficulty and expense, and perhaps may be 
 prejudicial to him in other cases (1). Thus, if a 
 plaintiff states himself to be heir or administrator 
 of a person dead intestate, and in that character 
 seeks a discovery from a person in possession of 
 property which did belong to the deceased, of his 
 title thereto, or of the particulars of which it con- 
 sists, the defendant may plead that another person 
 is heir or personal representative, or that the per- 
 
 330 son alleged to be dead is living (o) (2). 
 III. It has been already observed, that if a claim 
 
 of interest is alleged by a bill against a person who 
 
 (o) Ordv.Willianison,TT'm. mS; see Gait v. Osbaldeston, 1 Rusa. 
 Old V. Huddlestone, Dick. 510. And 158 ; S. C. 5 Madd. 428. 
 
 (ll Mendizahel v. Machado, I Sim. 68. [But, to a bill by several 
 tenants in common- of an estate within the Island of Jamaica against 
 their co-tenant, for an account of the profits, &c. — it was held as not 
 sufficient for the defendant to plead that the title to the estate might 
 be brought in question and suggesting that he had an exclusive title to 
 the whole and ought not, therefore, to be sued in chancery. He ought 
 to have set forth his title affirmatively, that the court might have de- 
 termined whether the suit ought to have been stayed until the title 
 was established. Lhingslon v. Liiingston, 3 J. C. R. 51.] 
 Bill making offi- The rule that officers of a corporation may be made co-defendants 
 
 cers of a corpo- ., , ,. i. l-h i- j- n i-i, 
 
 ration co-defen- With the corporation, applies to a bi.l oi discovery as well as to a bill 
 ^^*^' for relief. GlascoU v. The Governor and Company of the Cop/er 
 
 Miners of England, 11 Sim. 305. 
 
 (2) [If a party having an interest, join?, as a co-plaintiff, a party 
 having no interest, a plea will be a good defence to the suit, if the fact 
 does not appear on the face of the bill (and if it does appear, a demur- 
 rer will hold.) Makepeace v. Haythorne, 4 Rnss. 244.] 
 
 III. Plea of want 
 of interest in the 
 defendant.
 
 S. 11. p. II.] PLEAS. 330 
 
 has.no interest in the subject, he cannot by demur- 
 rer "protect himself from a discovery, and must re- 
 sort either to a plea or disclaimer ( /?) (1) ; by either 
 of which means it should seem he may protect 
 himself from making by answer that discovery 
 which he may properly be required to make if call- 
 ed upon as a witness (//). In some cases however 
 the court has allowed a defendant to protect him- 
 self by answer, denying the charge of interest, 
 from answering to matters to which he may be af- 
 terwards called upon to answer in the character of 
 a witness ; and perhaps, in justice to those against [284] 
 whom he may afterwards be called upon to give 
 evidence as a witness, he ought not to be previous- 
 ly examined to the same matters upon a bill, under 
 the pretence of an interest which he has not. 
 
 IV. The situation of a defendant may render it dLolTr^woSS 
 improper for a court of equity to compel a disco- ^""p"^"?^'- 
 very, 1, because the discovery may subject him to 
 pains and penalties ; 2, because it will subject him 
 to a forfeiture, or something in the nature of a fpr- ^^l 
 
 feiture ; 3, because it would betray the confidence 
 reposed in him as a counsel, attorney, or arbitra- 
 
 (p) Page 223. And see 1 Ves. settled that a bankrupt could by plea 
 426. protect himself from discovery. See 
 
 (q) But it does not appear to be 1 Ves. & B. 550 (2). 
 
 (1) [By the practice of the State of New-York, a party who die. 
 claims in a mortgaoe case will have to pay costs. Rule 133.] 
 
 (2) See supra, pp. 187, 188. But see Cfriffm v. Archer, li Anst. 
 478. 
 
 To a bill fiT the delivery up of bills of exchant'e wliich the plain- Pi<^" of bwik- 
 tiff had been fraudulently induced by the drawer to accept without a dnat. in suit for 
 consideration, the drawer cannot plead that he has bxome bankrupt biiu 'o7 ex^ 
 since the filin<r of the bill. Mackworth v. Marshall, 3 Sim. 368 ; [and '=''»°«« 
 see Willis on Eq. Plead. 266, and note (a) there.]
 
 331 PLEAS. [Chap. IL 
 
 tor ; 4, because he is a purchaser for a valuable 
 
 consideration without notice of the plaintiff 's title. 
 
 disc^overj'wouw I • It has bccu already observed, that no person 
 
 fenS to^pun- is bound to answer so as to subject himself to pun- 
 ishment, or any . . . , . , 
 
 thing in the na- ishmeut, lu whatevcr manner that punishment 
 
 ture of punish- _ ^ \ 
 
 ™*"^- arises, or whatever is the nature of the punish- 
 
 ment (/•). If therefore a bill requires an answer 
 which may subject the defendant to any pains and 
 penalties (1), or tends to accuse him of any crime, 
 and this is not so apparent upon the face of the bill 
 that the defendant can demur, he may by plea set 
 forth by what means he may be liable to punish- 
 ment, and insist he is not bound to answer the bill, 
 or so much thereof as the plea will cover (.s) (2). 
 Thus to a bill brought for discovery of a marriage, 
 
 (r) Page 229. See 2 Ves. 245 ; 109 ; Claridge v. Hoare, 14 Ves. 59; 
 
 2 Swanst. 214, 216; Bird v. Hard- Maccullum \. Turton,2 Younge & 
 
 wicke, 1 Vern. 109 ; 11 Ves. 525. Jervis, 183, 186 ; Hare ou Discovery, 
 
 (s) Bird V. Hardwicke, 1 Vern. 131-156. 
 
 Pleaof expo- C-^) If the interval between the filing and the arguing of a plea that 
 mire to a penal- the discovery sought vv^ould expose the defendant to a penalty, the period 
 elapses within which the penalty can be sued for, the plea will be over- 
 ruled. The Corporation of Trinity House Strand v. Burge, 7 Law J. 
 (O. S.) 44, V. C. 
 
 Where a tenant undertakes to pay an additional rent, in case he 
 shall do or not do certain acts, though such additional rent be in some 
 passages of the lease designated a penalty, it is not considered as a 
 penalty so as to protect the tenant from answering to a bill of discovery 
 as to such acts. Jones v. Green, 3 Y. & J. 290. 
 
 (2) [But if, between the filing and the hearing of the plea, the time 
 for suinii for the penalties expires, the plea will be overruled. Corpo- 
 ration of Trinity Church, v. Buge, 2 Sim. 411. See the furra of a 
 plea that the discovery will subject the defendant to pains and penal- 
 ties, Willis, 677; also the form of the plea used in Claridge v. Hoare, 
 supra.] Beames' Pleas in Equity, Appendix 333-6, being tlie actual 
 plea in Hutchins v. Laridar, Cooper's Eq. PI, 34, allowed by Lord 
 Eldon.
 
 S. II. p. II.] PLEAS. 331 
 
 where the fact, if true, would have subjected the [285] 
 party to punishment in the ecclesiastical court for ^32 
 
 incest, the defendant pleaded matter to show that 
 the marriage, if real, was incestuous, and would 
 subject the parties to pains and penalties (f). And 
 where a bill was brought against a woman claim- 
 ing as widow of a person dead, alleging that before 
 her marriage with the deceased she was married 
 to another person, who was living at the time of 
 her marriage with the deceased, the defendant 
 pleaded that marriage to the discovery of the sup- 
 posed first marriage, and insisted that she was not 
 compellable to answer to the fact of the first mar- 
 riage, as it would tend to show her guilty of 
 bigamy (w). So to a bill for a discovery whether 
 the defendant had become a purchaser of an estate 
 of which the supposed seller was not in possession, 
 the defendant pleaded the statute against selling 
 or contracting for any pretended rights or titles (.t). 
 And to a bill brought by insurers for a discovery 
 of what goods had been shipped on board a vessel, 
 the defendant pleaded the statutes which made it 
 penal to export wool. He was, however, directed 
 to answer so far as to discover what goods were 
 on board the vessel besides wool (//). But where 
 the discovery sought was not of a fact which could 
 subject the defendant to any penalty, though con- 
 nected with another fact which might, as, where 
 the question was whether the defendant had a le- 
 gitimate son, the defendant was compelled to answer. [286] 
 
 (/) Brownsword v. Edwards, 2 (x) Sharp v. Carter, 3 V Wms. 
 VeB. 243 ; 14 Ves. 65. 375. 
 
 (u) 5 Bro. P. C. 102, Toml. Ed. (y) Duncalf v. Blake, 1 Alk. 52.
 
 333 PLEAS. [Chap. II. 
 
 For the discovery of that fact would not subject him 
 to a penalty, though the discovery of his marriage 
 with the mother of the son might, and therefore he 
 was not compelled to discover the marriage (z). 
 liBclfvery woiJid 2' ^t has beeu also {a) observed, that no person is 
 fendant to^a for- bouud to auswer so as to subject himself to any 
 forfeiture, or to any thing iq the nature of a forfeit- 
 ure (^). If this is not apparent on the bill, the de- 
 fence must be made by way of plea. Thus where 
 a bill was brought to discover whether the defend- 
 ant had assigned a lease, he pleaded to the disco- 
 very a proviso in the lease, making it void in case 
 of assignment (c). And to a bill seeking a dis- 
 covery whether a person under whom the defend- 
 ant claimed was a papist, the defendant pleaded his 
 title, and the statute of 11 & 12 Will. III. disa- 
 bling papists (d) (1). But such a plea will only bar 
 the discovery of the fact which would occasion a 
 forfeiture. Therefore, where a tenant for life plead- 
 ed to a bill for discovery whether he was tenant 
 for life or not, that he had made a lease for the life 
 of another, which, if he was tenant for his own life 
 only, might occasion a forfeiture, the plea was 
 overruled (c). So upon a bill charging thedefend- 
 ^34 ant to be .tenant for life, and that he had commit- 
 
 [287] ted waste, it was determined that he might plead 
 
 (s) Finch V. Finch, 2 Ves. 491. 3 Atk. 457 ; Jones v. Meredith, Cora. 
 
 (a) Page 233. • R. 661 ; S. C. Bunb. 346 ; Harrison 
 
 {b) 1 Atk. 527. And see Park- v. Southcote, 528 •,S.C.2 Ves. 389. 
 
 hurst V. Lowten,! Meriv. 391. (e) Weaver v. Earl of Meath, 2 
 
 (c) Fane v. Atlee, 1 Eq. Ca. Ab. 77. Ves. 108. 
 
 (d) Smith V. Read, 1 Atk. 536 ; 
 
 (I) Thexlisabilities of papists from holding property are removed by 
 the Stat 10 Geo. IV. c. 7, s. 23.
 
 S. II. p. II.] PLEAS. * 334 
 
 to the discovery of the act whicli would occasion 
 the forfeiture, the waste, but that he could not plead 
 to the discovery whether he was tenant for life or 
 not (/). Upon an information by the attorney- 
 general on behalf of the crown, to discover whether 
 the defendant was an alien, and whether her child 
 was an alien, and where born, it was held the de- 
 fendant was bound to discover whether she was 
 herself an alien, the legal disabihty of an alien not 
 being a penalty or forfeiture ; and that she was 
 also bound to discover whether her child was an 
 alien, and where born, as she had a chattel inte- 
 rest in thepropertyin question in trust, eventually, 
 for the crown, if her child was an alien (g). In 
 all cases of forfeiture, if the plaintiff is entitled 
 alone to the benefit of the forfeiture (//), and waives 
 it by his bill, the defendant will be compelled to 
 make the discovery required. And though the 
 plaintiff is not entitled to the benefit of the forfeit- 
 ure, yet if the defendant has by his own agreement 
 bound himself not to insist on being protected from 
 making the discovery, the court will compel him 
 to make it (i). In some cases the legislature has 
 expressly provided that the parties to transactions 
 made illegal by statute shall be compellable to an- 
 swer bills in equity for discovery of such transac- [288] 
 tions ; and in such cases a defendant cannot pro- 335 
 
 tect himself from making the discovery thus re- 
 quired by pleading the statute which may subject 
 
 (/) 2 Ves. 109. stead, Mosely, 75 ; S. C. I Eq. Ca- 
 
 (g) Alt. Gen. v. Duplessis, Parker, Ab. 77. 
 144; 5". C. 1 Bro. P. C. 415; Dau- («) Mosoly, 77, and llie cases Ihero 
 
 bigny V. Davallon, Auatr. 462. cited; African Comp. v. Parish, 2 
 
 (A) ISouth Sea Comp. v. Bump- Vern. 244.
 
 335 PLEAS. [Chap. II. 
 
 him to penalties in consequence of the discovery 
 
 defend'am''8' ^^^ 3. If d bill sccks a discovery of a fact from one 
 derived afcJ^n* whoso knowledffc of tho fact was derived from the 
 
 8cl, attorney, or 
 
 arbitrator. confidcnce rcposod in him as counsel, attorney, or 
 arbitrator, he may plead in bar of the discovery that 
 his knowledge of the fact was so obtained (Z) (1). 
 
 4. Plea of pur- 4. If a defendant is a purchaser for a valuable 
 
 chase for a valu- * 
 
 tion/°°^''^^'^*' consideration without notice of the plaintiff's title, 
 a court of equity will not in general compel him to 
 make any discovery which may affect his own 
 title (m) (2). Thus if a bill is filed for discovery 
 
 (i) Bancroft v. Wentworth, 3 Bro. 189 ; Wright v. Mayer, 6 Ves. 280 ; 
 
 C. C. 11. See, however, Bullock Richards v. Jackson, 18 Yes. 472; 
 
 V. Richardson, 1 1 Ves. Jun. 373 ; 1 Sch. & Lefr. 226 ; Lowten v. Park- 
 
 Billing V. Flight, 1 Madd. R. 230. hurst, 2 Swanst. 194 ; aud Harvey 
 
 il) Bulstrode v. Lechmore, 1 Ca. v. Clayton, and other cases reported. 
 
 in Cha. 277 ; S. C. 2 Freem. 5 ; and 2 Swanst. 221, note, 
 see Legard v. Foot, Finch R. 82 ; (m) 2 Ves. Jun. 458 ; and see 
 
 Sandford v. Remington, 2 Ves. Jun. above, 319, et seq. ; 3 Atk. 302. 
 
 (1) As to this subject, see the present editor's note to original page 
 [307], infra. 
 
 Mr. Greenleaf, in his valuable work on evidence, has clearly ex- 
 pounded tills rule, and presented the cases in which the attorney may 
 be examined, and wiiich are therefore sometimes mentioned as excep- 
 tions to the rule. See 1 Greenleaf on Ev., sec. 244, 246, and the fol- 
 lowing cases there cited. 
 
 Grenoiigh v. Gaskell, 1 My. & K. 1 04 ; Desborough v. Rawlins, 3 
 My. & Craig, 521, 522 ; Lord Walsingham v. Goodrich, 3 Hare's Ch. 
 R. 122; Story's Eq. PI. sec. 601, 602; Boultonv. Corporation of Liu- 
 erjiool, I My. & K. 88 ; Annesley v. E. of Anglesea, 17 Howell's St. 
 Trials, 1239, 1244; Gillard v. Bates, 6 M. & W. 647; Rex v. Brew- 
 er, 6 C. & P. S63. 
 
 . (2) In Rowe v. Teed, 15 Ves. 378, Lord Eldon apparently considers a 
 purchaser for value without notice in the same privileged situation as 
 a party to whom questions are addressed, the answers to which would 
 criminate him. He classes the two together as parties not subject to 
 the ordinary rules, which oblige a defendant, who answers a bili, to 
 au6wer " throughout."
 
 S. II. p. II.] PLEAS. 385 
 
 of goods purchased of a bankrupt, the defendant 
 may plead that he purchased them bond fide for a 
 valuable consideration, paid before the commission 
 of bankrupt was sued out, and before he had any 
 notice of the bankruptcy {n). 
 
 Pleas have been hitherto considered with refer- 336 
 
 ence only to original bills, and of these a certiorari [289] 
 bill, from the nature of the proceedings upon it, will oneinRi.or buu 
 
 * o |- ' in the nature of 
 
 not in general admit of a plea (o). But the same ""g^"^! ^"i«- 
 grounds of plea will hold in many cases to the seve- 
 ral other kinds of bills according to their respective 
 natures ; and some of them, as already observed, 
 admit of ^ peculiar defence which may be urged 
 by way of plea. 
 
 Thus if a bill of revivor is brought without suf- Pieasto biiia of 
 
 ~ revivor. 
 
 ficient cause to revive the suit against the defend- 
 ant, and this is not apparent on the bill, the defend- 
 ant may plead the matter necessary to show that 
 the plaintiff is not entitled to revive the suit against 
 him (p) (1). Or if the plaintiff' is not entitled to 
 
 (n) Perrat v. Ballard, 2 Ca. in 348 ; S. C. 2 Eq. Ca. Ab. 2 ; Hug. 
 
 Cha. 72 ; Heyman v. Gomeldon, gins v. York Building Comp. 2 Eq. 
 
 Fiuch R. 34 ; Ahery v. Williams, 1 Ca. Ab. 3. A persoa made a defen- 
 
 Verii. 27. dant by a bill of revivor, cannot sup- 
 
 (0) See, however, Cooiv. Delehere, port, as a defence, a plea previously 
 3 Ch. Rep. 66, where a plea to a set up by the original defendant, and 
 certiorari bill, of a decree in the in- overruled. Samuda v. Furtado, 3 
 ferior court, is mentioned. Bro. C. C. 70. 
 
 {p) Harris v. Pollard, 3 P. Wms. 
 
 (1) [See the form of a plea to a bill of revivor, Willis, 583.] 
 When complainant in a suit assigns all interest therein to a third per- 
 son and then dies, his grantee cannot revive and continue the proceedings 
 by a simple bill of revivor. It can only be done, in such case, by an origi- 
 nal bill in the nature of a bill of revivor and supplement. And where a 
 defendant in such original .'*uit is entitled to revive the proceedings there- 
 in, he must do it by a similar bill. To entitle a defendant to file a bill of 
 revivor where the adverse party neglects to revive, such defendant
 
 836 PLEAS. [Chap. II. 
 
 revive the suit at all, though a title is stated in the 
 bill, so that the defendant cannot demur, the ob- 
 jection to the plaintiff's title may also be taken by 
 way of plea. Indeed it seems to have been thought 
 that a defendant could only object to revivor by 
 way of plea or demurrer (/j), and there may be 
 great convenience in thus making the objection. 
 For if the defendant objects by answer merely, the 
 point can only be determined by bringing the cause 
 regularly to a hearing (1) ; but if the objection is 
 taken by plea or demurrer, it may in general be 
 [290] immediately determined in a summary way. How- 
 337 ever, if a defendant objects by answer only (2), or 
 
 does not object at all, yet if it appears to the court 
 that the plaintiff has no title to revive the suit against 
 the defendant, he can take no benefit from it (r) 
 (3). If a person entitled to revive a suit does not 
 
 (jt) Harris v. Pollard, 3 P. Wnis. (r) Harris v. Pollard, 3 P. Wms. 
 
 348. 348. 
 
 t 
 
 must show that he has an interest in the revival of the suit. A defen- 
 dant may revive in all cases after decree, upon neglect of the adverse 
 party to do so, where he can be benefited by further proceedings in the 
 suit. Anderson v. White, 10 Paige's Ch. R. 675. 
 
 (1) A defendant in a biH of revivor, cannot by answer prevent a 
 revival of the suit, although he denies the right to revive. But al- 
 though the defendant cannot by answer prevent an order for the revival 
 of the suit, yet if the facts upon which the title to revive rests, are 
 denied by the answer, the complainant must establish the right to 
 revive at the hearing, or he will eventually fail in the suit. Day v. 
 Potter, 9 Paige's Ch. R. 645. 
 
 (2) To prevent a suit from being revived, either a plea or a de- 
 RcTiTor, how murrer must be put in to the bill of revivor. An answer insisting that 
 
 preren e . ^^^^ plaintiff has no right to revive is not sufficient : on the contrary, 
 
 the putting in of an answer is submitting to the revivor. Lewis v. 
 Bridgman, 2 Sim. 465. See form of a plea to supplemental bill, 
 Willis, 685. 
 
 (3) W^here a complainant files a supplemental bill for the purpose of 
 bringing forward new matters which might have been introduced into
 
 S. II. p. II.] PLEAS. 337 
 
 proceed in due time he may be barred by the sta- 
 tute for limitation of actions, which may be pleaded 
 to a bill of revivor afterwards filed (.s). If a sup- SJ°bZ^'" 
 plementalbill is brought upon matter which arose 
 before the original bill was filed, and this is not ap- 
 parent on the bill, the defendant may plead that 
 fact {t). And if a bill is amended by stating a 
 matter arisen subsequent to the filing of the bill, 
 and which consequently ought to have been the 
 subject of a supplemental bill, advantage may be 
 taken of the irregularity by way of plea, if it does 
 not sufficiently appear on the bill to found a de- 
 murrer (u) ; but if the defendant answers, he waives 
 the objection to the irregularity, and cannot make 
 it at the hearing {x) (4). 
 
 A cross-bill differing in nothing from the first 338 
 
 species of bills, with respect to which pleas in gen- \>S». 
 
 («) Hollingshead's case, 1 P. Wms. Atk. 40 ; Baldwin v. Mackoion, 3 
 
 742 ; and see 2 Sch. &. Lefr. 632, et Atk. 817. 
 
 scq., and the casee cited; and Earl (m) See BroM)/j v. Higden, 1 Atk. 
 
 of Egremont v. Hamilton, 1 Ball & 291 ; Jones v. Jones, 3 Atk. 217. 
 
 B. 516. (r) Belchier v. Pearson, at the 
 
 (<) See Lewellen v. Macwortk, 2 Rolls, 13th July, 1782. 
 
 Cleas to crow- 
 
 the original bill by way of amendment, the defendant sl.ould make his 
 objection thrreto by demurrer, or by plea, or in his an>vver to the sup- 
 plemental bill. And it is too late to make such objectidn, for the first 
 time, at the hearing. Fulton Barik v. N. Y. <Sf Sharon Canal Co., 4 
 Paige's C. R. 127. 
 
 (1) A plea tiiat a plaintiff in a supplemental bill, as well as in an pu-a of nointc- 
 original bi!}, has disposed of his share and interest in a company on [f,j'in",' aJjipie- 
 behalf of the members of which the original and supplemental bills mental bill. 
 were filed, and that at the time of filing the bill, he had no interest 
 whatever in any of the proceedings, is not a good plea to such .«upi)le- 
 mental bill, where the relief souglit by it is only a nuidificaliun or al- 
 teration of the relief in the original suit, and where llie original and 
 supplemental bills ought therefore to be considered as one bill. iSviall 
 V. Aitwood,\ y. & C. Ex. 39.
 
 review. 
 
 338 PLEAS. [Chap. II. 
 
 eral have been considered, except that it is always 
 occasioned by a former bill, it is not liable to any 
 plea which will not hold to the first species of 
 [2911 bills. And a cross-bill in general is not liable ta 
 some pleas which will hold to the first species of 
 bills ; as pleas to the jurisdiction of the court, and 
 pleas to the person of the plaintiff, the sufficiency 
 of which seem both affirmed by the original bill ; 
 unless the cross-bill is exhibited in the name of 
 some person alone, who is alone incapable of in- 
 stituting a suit, as an infant, a ferae covert, an 
 idiot, or a lunatic (ti). 
 Pleas to bills of It has bccn already mentioned (x) that a part of 
 the constant defence to a bill of review, for error 
 apparent on a decree, has been said to be by a plea 
 of the decree («/) ; but that a demurrer seemed to 
 be the proper defence, and that the books of prac- 
 tice gave the form of a demurrer only to such a 
 bill (z) (1). Where any matter beyond the de- 
 cree, as length of time (a), a purchase for a valu- 
 able consideration, or any other matter, is to be 
 oflfered against opening of the enrolment, that mat- 
 
 (u> See above, p. 240, note (»). (r) And see Needier v. Kendall, 
 
 (z) Page 241. Finch R. 468. 
 
 (y) Dancer \.Evett, 1 Vern. 392 ; (a) Gregor v. Moleswortk, 2 Ves. 
 
 Carlish v. Gover, Nels. Rep. 52. 109 ; but see above, p. 242. 
 
 (1) It is not necessary to plead the former decree, if such decree ia 
 fully and fairly stated in the bill of review. Webb v. Pell, 3 Paige's 
 C. R. 368. The error must appear on the decree and pleadings ; for 
 the evidence in the case at large cannot be examined to ascertain 
 whether the court misstated or misunderstood the fact. Dexter v. Ar- 
 ?iold, 5 Mason's C. C. R. 309.
 
 S. II. p. II.] PLEAS. 339 
 
 ter must be pleaded (b). And if a demurrer to a 
 bill of review has been allowed, and the order al- 
 lowing it is enrolled, it is an effectual bar to a new 
 bill of review (c) on the same grounds, and maybe [292] 
 pleaded accordingly. To a bill of review of a de- 
 cree for payment of money, it has been objected 
 by plea that according to the rule of the court (d) 
 the money decreed ought to have been first paid ; 
 but the rule appears to have been dispensed with 
 on security given (e) ; and as the bill of review 
 would not stay process for compelling payment of 
 the money, it may be doubted whether the objec- 
 tion was properly so made. A bill of review, upon 
 
 (b) Hartwell v. Townsend, 2 Bro. Amb. 229 (2). 
 P. C. 107, Toml. Ed. (1), and see (c) Z>cnny v. F»7mer, 2 Ca. in Cha. 
 
 Gorman V. M'Cullock, 5 Bro. P. C. 133; S. C. 1 Vern. 135; 1 Vern. 
 
 597, Toml. Ed. As instances in 417; Pitt v. Earl of Arglass, 1 
 
 which the error alleged was not in Vern. 441 ; Woots v. Tucker, 2 Vern. 
 
 the body of the decree, see Cran- 120. 
 
 borne v. Dalmahoy, 1 Ch- Rep. 231 ; ((/) Ord. in Ch- Ed. Bea. 3. 
 Smilh V. Turner, 1 Vern. 273 ; and («) Savile v. Darcy, 2 Freem- 
 
 eee 2 Ves. 488 \. and Bradish v. Gee, 172 ; S. C. 1 Ca. in Cka. 42. 
 
 (1) Mr. Beames, in his Pleas in Equity, page 313, Am. ed. eaya, 
 *'The case of Hurlwell v. Townsend, 2 Bro. P. C. 107, contains an im- 
 portant distinction with respect to this subject, that though the plain- 
 tiff in a bill of review, is confined to errors upon the face of the record, 
 and cannot go out of it, yet the defendant is at liberty to allege every 
 matter relevant to his defence, whether in or out of the record, by way 
 of a plea, as a release, &c., to prevent disturbing the decree, nor has 
 he any other method of introdiicing it, and when pleaded tlie court is 
 to judge, whether tlie matter alleged is sufficient to preclude the plain- 
 tiff from the review he seeks. That case also decides, that whilst 
 neither an assignee nor devisee can have relief by a bill of review, all 
 the parties to the original bill must be made parties to the bill of re- 
 view, on that principle of justice, that a party is not to be condemned 
 without being heard." 
 
 (2) [And see cases collected in Blunt's edition of Ambler, same 
 page, note (1). 3 Paige, 368. Story's Equity Pleading, 2d edition, 
 \ 833, page 639.] 
 
 28
 
 839 PLEAS. [Chap. U. 
 
 the discovery of new matter, seems liable to any 
 plea which would have avoided the effect of that 
 matter if charged in the original bill. It seems to 
 have been doubted whether the fact of the discove- 
 ry of the matter thus alleged to support a bill of 
 review, can be traversed by plea after the court 
 upon evidence of the fact has given leave to bring 
 the bill, even if the defendant could traverse the 
 fact by positive assertion of some fact which would 
 demonstrate that the matter was within the know- 
 ledge of the party, so that he might have had the 
 benefit of it in the original suit. But if the fact of 
 340 the discovery is in issue in the cause, it ought to be 
 
 proved to entitle the plaintiff to demand the judgment 
 of the court on the matter alleged, as ground for re- 
 [293] viewing the decree (/) ; and it may consequently be 
 disproved by evidence on the part of the defendant. 
 Sentai" Wfn Upon a supplcmcutal bill in the nature of a bill of 
 £u« "of "review, rcvicw of a decree not signed and enrolled, upon 
 the alleged discovery of new matter, it has been 
 said, that if the defendant can show that the al- 
 legation is false, he must do so by plea, and that 
 it is too late to insist upon it by answer (g) ; but as 
 the bill must allege the fact of discovery, and that 
 fact must be the ground of the proceeding, it should 
 
 (/) See p. 107. principally on the ground, that length 
 (g) 2 Alk. 40. The accuracy of of time, with collateral eircum- 
 this report seems very questionable, stances, ought to operate as a bar to 
 The supplemental bill was brought on the plaintiff's title under the old set- 
 discovery of an old settlement, found tlement, which was dated in 1G55; 
 after a decree made in 1733. The the defendants claiming under a sub- 
 cause came on upon the supplemen- sequent settlement made in 1694, 
 tal bill, and a rehearing of the decree which had been constantly acted up- 
 complained of, 7 July, 1740. The on by the family. MS. N., S. C. 2 
 decree was affirmed, and the supple- Eq. Ca. Ab. 579. 
 meutal bill dismissed without costs.
 
 S. II. p. II.] PLEAS. 340 
 
 seem that it is equally liable to traverse by answer, 
 and by evidence, as any other fact stated in a bill. 
 If a decree is souffht to be impeached on the ground piea* to bnu to 
 
 or D impeach decreet 
 
 of fraud, the proper defence seems to be a plea of *^°'" '^"''"* 
 the decree accompanied by a denial of the fraud 
 charged (A). 
 
 If a plaintiff filing a bill to carry a decree into Tarry'decre'es^ 
 execution has no right to the benefit of the decree, '"'^ <=^'=<="^°|j^ 
 the defendant may plead the fact, if it is not so ap- 
 parent on the bill as to admit of a demurrer. Bills 
 in the nature of bills of revivor, or of supplemental 
 bills, are liable to the same pleas as the bills of [294] 
 whose nature they partake. 
 
 Having thus considered some of the principal 
 grounds upon which pleas to the several kinds of 
 bills may be supported, it will be proper to observe 
 some particulars with respect to, 1, the nature of 
 pleas in general ; 2, their form ; 3, the manner in 
 which they are offered to the court ; and 4, the 
 manner in which their validity is decided. 
 
 1. In pleadinor there must in general be the same ' The n»turo 
 
 , , . '"'*i requiiite* ox 
 
 Strictness in equity as at law (i) ; at least in matter p^*""- 
 of substance (2). A plea in bar must follow the bill, 
 
 (h) Wichalse V. Short, 3 Bro. P. see p. 281, et seq. 
 
 C. 558, Toml. Ed.; S.C. 7 Vin.Ab. (t) 1 Vern. 114; 2 Atk. G32 ; 13 
 
 398, pi. 15; 2 Eq. Ca. Ab. 177; Ves. 233 (1). 
 Loyd V. Mansell, 2 P. Wms. 73 ; and 
 
 (1) [Burdin V. Grew, 8 Pickering's R.. 108; Beames' Pleas, pre- 
 face ; Willis on Pleading, 486 ; 1 Montague on Pleadinnf, 26. ] See 
 
 Marselisw The Morris Canal i\- B. Co., Saxton's C. R. (N. J.) 31. 
 
 (2) Where an information agitiust a company, after statinjj several riea bad in form 
 charities in \vhic!i that company alone are interested, CDntains an alle- ""'i •"''»'*"<:"'• 
 gation as to another charity in wliicii that and another company are 
 
 jointly interested; and that al'egation is afterwards struck out by 
 amendment, in order to save making such other company partiea; and
 
 842 PLEAS. [Chap. II. 
 
 and not evade it, or mistake the subject of it (A;). 
 If a plea does not go to the whole bill, it must ex- 
 
 (Jt) Asgill V. Dawson, Bunb. 70 ; Child v. Gibson, 2 Atk. 603. 
 
 in place of such allegation another is substituted, that there are other 
 funds vested in the former company upon "the like or corresponding 
 trusts ;" in such case, a plea of the will of the person who created the 
 charitable trust struck out of the information, and tliat the other com- 
 pany above nlentioned are not parties, is bad in point of form ; because 
 it is in fact an answer as to that of which it means to protect the de- 
 fendant from making discovery ; and it is also bad in substance, be- 
 cause comparing the amended information with the original, " the like 
 or corresponding trusts" mean trusts for the exclusive benefit of the 
 company interested in the other trusts. Attorney Gen. v. Merchant 
 Taylors^ Company, 5 Sim. 323. 
 If, to all the relief and discovery of a bill, except so much as seeks a 
 
 Negative plea, 
 
 denying that discovery of an alleged promise which constitutes the whole equity, a 
 
 ted out'^of ^he^ defendant pleads, in bar, that no such promise was made, and, by an 
 
 bill by tte plea, j^j^g^gj acompanying the plea, again denies the premise, the plea is 
 
 bad ; because the plea is to the bill, taking away that which alone 
 
 constitutes the equity; so that if issue were taken on it there would 
 
 be in the issue no affirmative, but only a negative of that which nobody 
 
 affirms. Denys v. Shuclburgh, 6 Law J. (N. S.) 330, L. C. 
 
 Plea coupled If a plea is coupled with an averment which raises an issue not 
 
 ei8tent^aver-^°° raised by the bill, and which, instead of supporting the plea, is in fact in- 
 
 ™^*- consistent with the plea, the plea will be overruled. Emmotl v. 
 
 Mitchell,Q3ur.ni,y.C.E. 
 Plea to the relief If a p'ea purports to be a plea to the relief only, but yet concludes 
 withderf^in^g'^a ^^^^ a demand of the judgment of the court whether the defendant 
 discovery. ought to be compelled to make any other answer, such a plea is in- 
 
 formal : for if the plea is to the relief only, the defendant professes that 
 that he will give the discovery. King v. Heming, 9 Sim. 59. 
 Plea of the law A plea that by the laws of a foreign country an agreement is void, 
 
 of a foreign . —.,■,•■ • i • o . , • , i i . . 
 
 etate. 18 sufficiently definite, without specifying the particular law which 
 
 renders the agreement void. Heriz v. Riera, 11 Sim. 318. 
 
 Plea to a bill of If a bill of discovery is filed in aid of an action, and the right of 
 
 of an action. action IS founded upon a variety of circumstances put together, a plea 
 which attempts to show that the action cannot be maintained by con- 
 
 ' fessing and avoiding some of the circumstances and denying the rest, 
 
 is not good ; because it reduces the plaintiff to the necessity of 
 proving, in a court of equity, without a discovery, that he has a right 
 to support that action. Robertson v. Lubbock, 4 Simons C. R. 161.
 
 S. II. p. II.] PLEAS. 342 
 
 press to what part of the bill the defendant pleads, 
 
 and therefore a plea to such parts of the bill as are 
 
 not answered must be overruled as too general (/) (1). 
 
 So if the parts of the bill to which the plea extends 
 
 are not clearly and precisely expressed ; as if the 343 
 
 plea is general, with an exception of matters after 
 
 mentionedj and is accompanied by an answer, the 
 
 plea is bad. For the court cannot judge what the 
 
 plea covers, without looking into the answer, and 
 
 determininfj whether it is sufficient or not, before 
 
 the validity of the plea can be considered (m) (2). 
 
 It is generally conceived that a plea ought not to [295] 
 contain more defences than one ; and though a plea 
 may be bad in part and not in the whole (n), and 
 may accordingly be allowed in part and overruled 
 in part (3) yet there does not appear any case in 
 
 (Z) Anon. 3 Atk. 70; Broom v. (n) 1 Atk. 53, 451, 539; 2 Alk. 
 
 Horsley, Mosely, 40. 44, 284 ; 1 Ves. 205 ; Welby v. Duke 
 
 (m) Salkeld v. Science, 2 Ves. of Portland, 2 Bro. P. C. 39, Toml. 
 
 107; Howe v. Duppa, 1 Ves. & B. Ed.; 1 Jac. R. 466. 
 511. 
 
 (1) When a plea does not go to the whole bill, it must distinctly 
 Bet out the part of the discovery or relief intended to be covered by it, 
 either in the words of the bill or by such a description that the court 
 will not be obliged to look into the whole bill to at^certain the part 
 thereof which is covered by the plea. But where a plea is overruled 
 upon this ground, the defect being merely formal, it will be overruled 
 without prejudice to the defendant's right to insist upon the same 
 matters in his answer, as a defence to the suit pro /an^o. Janis v. 
 Palmer, 11 Paige's Ch. R. 650. 
 
 (2) [And see case of Leaycrafl v. Dempsey, in note at p. 300, post.J 
 
 (3) [French V. Shotwell,5}. C. R. 655; JS. C. on appeal, 120 J. R. 
 242 ; Lord Drogheda v. Malone, Finlay'e Digest, 449.] 
 
 Such is the determined discretionary control of the court over the 
 technicalities of pleading, that a sacrifice of the merits of the case to 
 form is not permitted. VViiile the defendant will have the benefit of 
 his defence, the proceedings by amendinenl or others^ise, will be bo 
 ehaped as to secure to the complainant also a full hearing on the whole
 
 343 PLEAS. [Chap. II. 
 
 which two defences offered by a plea have been 
 separated, and one allowed as a bar. Thus if a 
 defendant pleads a fine and non-claim, which is a 
 legal bar, and a purchase for a valuable considera- 
 tion without notice of the plaintiff's claim, which 
 is an equitable bar ; if either should appear not to 
 be a bar, if the defendant by answer should admit 
 facts amounting to notice ; or if the plea in respect 
 to either part should be informal ; there seems to 
 
 of his case. Hence, as observed, in the text, thounh the general rule 
 is that but one defence and facts only conducive to a single point, are al- 
 low^ed in a plea; yet double pleas are allowable, and a plea may be allowed 
 in part, its benefit left to the hearing, or ordered to stand for an answer, or 
 otherwise as may best subserve the purposes of justice. The Supreme 
 Court of the United States, have adopted this rule for its Equity Courts, 
 the English Chancery practice, recently took an enlarged view of the 
 above principle in The State of Rhode Island v. Slate of Massachusetts, 
 14 Peters, 210, and held that in ordinary cases between individuals, 
 Chancery has always exercised an equitable discretion in relation to the 
 rules of pleading, when necessary to do so for the purposes of justice. 
 But where two states were contesting a boundary the court would mould 
 the rules of Chancery practice and pleading on the most liberal princi- 
 ples, so as both parties might present their respective claims in their full 
 strength, and the case be bruuoht to a final hearing on its merits. 
 
 A defendant in a suit in Chancery cannot put in several distinct de- 
 fences, by plea, to the whole of the complainant's bill, or the same part of 
 the bill without the special leave of the court. Nor can he set up two 
 distinct defences in the same plea without rendering such plea bad for 
 duplicity. Where great inconvenience will result to the defendant in a 
 suit in Chancery by compelling him to answer the complainant's bill, 
 the court upon special application may give him permission to plead 
 two separate pleas in bar. The cases in which the court allows the 
 defendant to make several defences by pleas to the complainant's bill) 
 are those in which the making the defences by answer would render it 
 necessary for the defendant to set out very long accounts, or where 
 the discovery sought by the bill would be productive of injury to the 
 defendant in his business or otherwise. Didier v. D^xvison, 10 Paige, 
 515. A defendant in a suit in Chancery may in his answer set up as 
 many defences as he thinks proper, although he cannot do so by plea. 
 But in a sworn answer he cannot set up two distinct matters, which 
 are so inconsistent with each other, that it is impossible that both of 
 them can be true. Hopper v. Hopper, 11 Paige's Ch. Rep. 46.
 
 S. II. p. II.] PLEAS. 343 
 
 be no case in which the court has separated the 
 two matters pleaded, and allowed one as a bar 
 and disallowed the other. And as the end of 
 a plea is to reduce the cause, or the part of it 
 covered by a plea, to a single point (o), in order to 
 save expense to the parties, or to protect the de- 
 fendant from a discovery which he ought not to be 
 compelled to make ; and the court to that end in- 344 
 
 stantly decides on the validity of the defence, 
 taking the plea, and the bill so far as it is not con- 
 tradicted by the plea, to be true ; a double plea is 
 generally considered as informal and improper {p). 
 
 (0) 1 Atk. 54; 1 Bro. C. C. 417; B. 150; 3 Madd. 8; 4 Madd. 245. 
 15 Ves. 82; 1 Ves. & B. 153, note, Bat it has been determined, that 
 156-7; 1 Madd. R. 194. where great inconvenience would re- 
 
 (p) Whitbread v. Brockhurst, 1 suit from obedience to this rule, tlie 
 
 Bro. C. C. 404; S. C. 2 Ves. & B. court on a previous special applica- 
 
 153, note. Nobkissen v. Hastings, tion will give to the defendant leave 
 
 4 Bro. C. C. 252 ; S. C. 2 Ves. Juu. to plead double (1). Gibson v. 
 
 84; Wood V. Strickland, 2 Ves. & Whitehead, 4 Madd. 241 (2). 
 
 (1) In Sallusand Sallus v. Tobias and Seaman,! Johns. C. R. 214, 
 Mr. Chancellor Kent seems to admit that on special application a de- 
 fendant might be allowed to plead double. The defendants there 
 pleaded, tlie statute of limitations and a discharge of one of the defen- 
 dants under an insolvent act ; ami tliey were ordered to elect by whicli 
 plea they would abide. Tlie Chancellor there says: "The reason 
 why this court does not admit such pleas, ccntaining different and 
 distinct points, is, that^ou may put all the different circumstances to- 
 gether in your answer, which you cannot do at common law. Tiiereis 
 therefore, not the same reason in equity, as at law, fur pleading double. 
 The use of a plea here is to save lime, expense and vexation. If one 
 point will put an end to the whole cause, it is important to the admi- 
 nistration of justice, that it should be pleaded; but if you are to state 
 many matters, tlie answer is the more commodious form to do it in. 
 If the defendant might be permitted to bring two points, on which the 
 causL^ depends, to issue, by his plea, ho might bring three or twenty, 
 and so on until all the matters in the bill are brought to issue by the 
 plea." See also Verchild v. Paul, 1 Kf'cn's Ch. It. 87, 90. Robert- 
 son V. Lubbock, 4 Simons' C. R. 161. Dogardus v. lyinity Church, 4 
 Paige's Ch. R. 178. 
 
 {Ji) Leave will be given to put in a double plea where extraordinary
 
 344 PLEAS. [Chap. II . 
 
 [296] For if two matters of defence may \)e thus offered. 
 
 Leave to plead inconvenience might arise if a double plea were not allowed. Thus, 
 
 double. jjj a guit as to an invention, where the defendant is required to set forth 
 
 accounts of extraordinary length, at a great expense, and at the risk 
 
 of making an inconvenient exposure of his ifTairs, leajfe, will be given 
 
 to plead, first, that where the invention 13 new, it .is>not. ttseful ; and 
 
 secondly, that where it is useful, it is not jiewi: ,£^ :/, J\fqphall, 1 
 
 Keen, 190. In this case Lord Langdale allo\ve3 two ple4s to Oe filed 
 
 and states his reasons as follows : — " Upon the subject of double pleas 
 
 there has been considerable argument at the bar. ■ It has been said that 
 
 a double plea is only allowed in cases where there li a sort of double 
 
 or alternative claim in the bill. In the case cited for the purpose of 
 
 supporting that proposition there is such an alternative claim, hut there 
 
 is nothing to show that this is the principle, still less the only principle 
 
 upon which the couYt proceeds in allowing double pleas. It appears 
 
 to me that the principle upon which the court proceeds, depends very 
 
 much upon the extraordinary inconvenience that might arise, if the 
 
 defendant were not allowed in many cases to ptead double. How far 
 
 and in what cases a defendant may if he answer protect himself against 
 
 answering fully has been a subject much controverted and upon which 
 
 judges have differed. A defendant denying the principal fact upon 
 
 which the plaintiff rests his claim to discovery is entitled to protect 
 
 himself by plea against answering, and if his plea be accompanied by 
 
 an answer the answer must be so framed as to support but not to 
 
 overrule the plea. Lord Thurlow's objection to bringing two points 
 
 in issue by plea has been adverted to in the argument. Why, says 
 
 Lord Thurlow, it may be asked, should not the defendant be permitted 
 
 to bring two points on which the cause depends to issue by his plea ? 
 
 The answer is, because if two he may as well bring three points to 
 
 issue, and so on till all the matters in the bill are brought into issue ' 
 
 upon the plea. This objection is not applicable to the modern practice 
 
 of allowing double pleas, because, though a defendant may file a single 
 
 plea without an application to the court, he cannot put in a double 
 
 plea without such an application, and the liberty if sought to be abused 
 
 is easily restrained. The general rule that if the defendant answers 
 
 he must answer fully, however established, is no doubt a rule that in 
 
 many cases occasions great hardship to the defendant. The only de* 
 
 ence is a demurrer or a plea. A demiirrer is not a convenient mode 
 
 of defence, by ^reason of the admission wiiich it involves if the case 
 
 made by the bill, and the rules as to pleas in this court ar6 of such 
 
 exceeding nicety and difficulty, that it is almost impossible for parties 
 
 who have a right to plead, to take full advantage of their right. The 
 
 only way of saving defendants from the hardship to which in many
 
 S. II. p. II.] PLEAS. 344 
 
 the same reason will justify the making any number 
 of defences in the same way, by which tlic ends 
 intended by a plea would not be obtained ; and the 
 court would be compelled to give instant judgment 
 
 cases they would be subjected by making a full discovery, is by afford- 
 ing to them such facilities as can, by the rules of the court, be af- 
 forded with respect to pleas. I do not think a great ii.dulcencc is 
 sought from the court, where by obtaining it the defendant will obtain 
 only that which the court tiiinks right. With respect to this particu- 
 lar case, if it be a matter of indulgence, I think the defendants under 
 all the circumstances are entitled to it. The defendants are required 
 by the bill to set forth accounts of extraordinary length at a great ex- 
 pense, and at the risk (though this does not appear) of making an incon- 
 venient exposure of their affairs. This application therefore, must be 
 granted, but according to the course of the court upon the condition of 
 the defendant's paying the costs." 
 
 And when it will be no disadvantage to the plaintiff, and a great 
 convenience to the defendant that the defences should be put in the 
 form of pleas, in order that their validity may be considered before a 
 discovery is enforced, leave will be given to plead to an ejectment 
 bill ; first, that a party is not heir ; and, secondly, that even if he 
 were heir, the plaintiff's rigiit is barred by the statu'.e of limitations. 
 Bampton v. Birchell, 4 Beav. 558. 
 
 [The court may permit a defendant to plead double, under special 
 circumstances ; as where he could not make his defence by answer 
 without setting out a long account, which would be unnecessary, if the 
 defence sought to be made hy plea was valid. Vari Iloi.k v. Whiilock,, 
 3 Paige's C. R. 409. The case of Gibson v. Whitehead, sujira, which 
 is doubted by Mr. Willis, is upheld by Chancellor Walworth in the 
 above case of Van Hook v. Whitlock; and see Lube, 348.] 
 
 A plea of the statute of limitations, setting up two matters, either of 
 which establishes that defence, is not for that cause a double plea. 2 
 Sandford's Ch. R. 61. 
 
 The court will not allow the defendant to plead double, upon an af- 
 fidavit merely, showing that he has several defences, of which he 
 might avail himself by plea, if permitted to do so. The general rule 
 of the Court of Chancery is, that if a defendant wishes to set up n)ore 
 than one defence to the complainant's bill, he must do it by answer; 
 and to justify the court in departing from this general rule the defend- 
 ant must make out a very special case of hardship and inconvenience 
 to him if he slmuld be required to make his several defences by answer. 
 Didierv. Davisan, 10 Paige, Ch. K. 515.
 
 344 PLEAS. [Chap. II. 
 
 on a variety of defences, with all their circumstan- 
 ces, as alleged by the plea, before they are made 
 845 out in proof; and consequently would decide upon 
 
 a complicated case which might not exist. This 
 reasoning perhaps does not in its extent apply 
 with equal force to the case of two several bars 
 pleaded as several pleas, though to the same 
 matter : and it may be said that such pleading is 
 admitted at law, and ought therefore to be equally 
 so in equity. But it should be considered that a 
 plea is not the only mode of defence in equity, and 
 that therefore there is not the same necessity as 
 at law for admitting this kind of pleading. But 
 though a defence offered by way of plea consist of 
 a great variety of circumstances, yet if they all tend 
 to one point the plea may be good (1) (o). Thus a 
 
 (o) Cann v. Cann, 1 P. Wms. 725 ; Ashurst v. Eyres, 3 Atk. 341 ; 15 
 
 . . (1) See p. 285, n. A distinct plea may be put in to distinct parts 
 
 distinct parte of of the relief sought by the same bill. Emmotlw 3Iilchell,9 Jur. 171, 
 *^"'- V. C. E. 
 
 But each " plea in order to be good, must be an allegation or denial 
 of some leading fact, or of some matters which, taken collectively, 
 make out some general fact." Robertson v. Lubbock, 4 Sim. 179. 
 Multifarious or Heiice, inasmuch as the fact of a party being heir is consistent 
 double pleas. ^yjj.jj jj-jg j-^gj Qf jhere being no descent; and as there may have been 
 a descent without a seisin ; a plea of not heir, no descent, and no 
 seisin, is a plea of several matters and multifarious. Chadwick v. 
 Broadwood, 3 Beav. 530. 
 
 A plea that a person had not intermeddled with a testator's estate, 
 and that he had renounced probate, is not a double plea to a bill alleg- 
 ing that he had possessed certain of the testator's effects, and was the 
 personal representative of the testator ; for both the averments ia the 
 plea only amount to this, that the character of executor never was in 
 him. Sirickla7id\. Strickland, 12 Sim. 253. 
 
 A plea that the plaintiff had not obtained his certificate imder a 
 commission of bankruptcy, and that no dividend, or a dividend or di- 
 vidends less than fifteen shillings in the pound had been paid, and
 
 S. 11. p. II.] PLEAS. 346 
 
 plea of title deduced from the person under whom 
 
 Ves. 82, 377 ; Leonard v. Leonard, of diBtiiict propositions, and a single 
 
 1 Bail, & B. 323 (I). And see 2 plea consisting of one connected 
 
 Blackst. 1028, as to the distinction proposition formed from multifarioiu 
 
 between a double plea, consisting circumstances. (2) 
 
 that the assignee was a necessary party, is not a double plea, because 
 the facts as to the certificate and dividend lead but to one point, name- 
 ly, the necessity of the assignee being a party. Kirkman v. Andrews, 
 4 Beav. 554. 
 
 A plea of a stated account, and of a release, or receipt of the bal- 
 ance, is not a double plea. And such account, if not impeached by 
 the bill, need not be annexed to the plea. Holland v. Sprowle, 6 
 Sim. 23. 
 
 So a plea of the statutes of limitation, 21 Jac. 1, and 9 Geo. IV., is 
 not a double plea ; for they ought to be considered as jointly making 
 but one law. Forbes v. Sk'^lton, 8 Sim. 335. 
 
 But a plea, which is in effect a plea of the statute of limitations, and 
 of no liability ever incurred, is a double and inconsistent plea, and bad. 
 Emmoil v. Mitchell, 9 Jur. 171, V. C. E. 
 
 And a plea averring that a fine was levied of an estate claimed by 
 the bill, and that such estate is the only part of the property claimed 
 in which the defendant has any interest, will be overruled as a double 
 plea. Waikins v. Stone, 2 Sim. 49. 
 
 (1) Goodrich v. Pendleton, 3 J. C. R. 384. 
 
 (2) [See the case of Wilkins v. Stone, 2 Sim. 49, where a disclaimer 
 was added to a plea and the plea overruled. It was looked upon as a 
 double plea. 
 
 It is the pleading of a double bar which constitutes duplicity.in a 
 plea. But a plea is not rendered double by t!ie mere mention of aver- 
 ments therein which are necessary to exclude conclusions arising from 
 allegations in the bill intended to anticipate and defeat the bar which 
 might be set up by the plea. Chancellor Walworth, in Bogardus v. 
 Rector, dfC. of Trinity Church,{A. Paige's R. 178, 196.) His honor proves 
 the propriety of inserting such averments, thus : " if the defendant 
 was not bound, by averments in his plea, to negative the allegations 
 in the bill inserted for the purpose of anticipating and displacing the 
 bar, the complainant would frequently be compelled to rely upon the 
 defendant's oath alone for the evidence of the truth of such allega- 
 tions: and he would have no opportunity to contradict that oath, un- 
 der the issue joined upon the plea. If that course of pleading were 
 adopted, the whole plea might be true, although the answer in sup- 
 port of such plea were absolutely false and could be proved to be so, 
 if an opportunity were offered to the complainant for that pur- 
 pose." lb.]
 
 346 PLEAS. [Chap. II. 
 
 [297] the plaintiff claims may be a good pl<}a though con- 
 sisting of a great variety of circumstances (j^) ; for 
 the title is a single point, to which the cause is 
 reduced by the plea (q). It therefore seems that a 
 plea can be allowed in part only with respect to its 
 extent, the quantity of the bill covered by it ; and 
 847 that if any part of the defence made by the plea is 
 
 bad, the whole must be overruled (r). 
 
 A plea must aver facts to which the plaintiff 
 may reply (s), and not in the nature of a demur- 
 rer, rest on facts in the bill (t). The averments 
 ought in general to be positive (u). In some cases, 
 indeed, a defendant has been permitted to aver ac- 
 cording to the best of his knowledge and belief; 
 as that an account is just and true (x) ; and in all 
 
 [298] cases of negative averments (i/), and of averments 
 of facts not within the immediate knowledge of 
 the defendant (z), it may seem improper to require 
 
 (p) Martin and Martin, House of (s) 15 Ves. 377. 
 Lords, 6th March, 1724-5; and (t) Bicknell v. Gough,3 Atk. 558; 
 
 Else V. Doughty, 1 P. Wms. 387, 2 Ves. 296; Roberts v. Hartley, 1 
 
 note, Mr. Cox's Ed. ; Howe v. Duppa, Bro. C. C. 56 ; 6 Ves. 594 ; Billing 
 
 1 Ves. & B. 511 ; Gait v. Osbaldis- v. Flight, 1 Madd. R. 230; Steff v. 
 
 ton, 1 Russ. 158 ; S.C.5 Madd. 428. Andrews. 2 Madd. R. 6. The pro- 
 
 (7) See Doble v. Cridland, 2 Bro. miiient distinction between a plea and 
 
 C. C. 274. a demurrer, (Ord. in Ch. 26 Ed. Bea.) 
 
 (r) As instances of a plea not be- here noticed, is strictly true, even of 
 ing a complete defence to the bill, or that description of plea which is 
 to 60 much thereof as it purports to termed negative, (above, p. 269,) for 
 cover, see Moore v. Hart, 1 Vern. it is the affirmative of the proposition 
 110 ; Salkeldv. Science, 2 Ves. 107 ; which is stated in the bill. 
 Potter V. Davy, 3 Vin. Ab. 135 ; (m) 3 Atk. 590. 
 Hoare v. Parker, above p. 322, note ; (z) 3 Atk. 70 ; Burgony v. Ma- 
 Jones V. Davis, 16 Ves. 262 ; Cham- chell, Tothill, 70. 
 berlain v. Agar, 2 Ves. &. B. 259 ; {y) See Drew v. Drew, 2 Ves. & B. 
 Spottiswood V. Stockdale, Coop. R. 159. 
 102 ; Barker v. Ray, 5 Madd. 64. (2) 2 Vee. & B. 162.
 
 S. II. p. II.] PLEAS. 347 
 
 a positive assertion (1). Unless, however, the 
 averment is positive, the matter in issue appears to 348 
 
 be, not the fact itself, but the defendant's bcHef of 
 it : and the conscience of the defendant is saved 
 by the nature of the oath administered ; which is, 
 that so much of the plea as relates to his own acts 
 is true, and that so much as relates to the acts of 
 others he believes to be true. All the facts neces- 
 sary to render the plea a complete equitable bar to 
 the case made by the bill, so far as the plea ex- 
 tends, that the plaintiff may take issue upon it (a), 
 must be clearly and distinctly averred (2). Aver- 
 
 (a) Gilb. For. Rom. 58; 2 Ves. 296; and see Carleton v. Leighton, 
 3 Meriv. 667. 
 
 (1) According to the case of Kirkmanv. Andrew, a plea that the piea of infoma- 
 defendant is infortiied and believes that the plaintifT became bankrupt, tio"^^"! belief of 
 is a sufficient plea of bankruptcy ; inasmuch as the facts stated in an 
 answer upon the information and belief of the defendant are held to 
 be sufficiently put m issue ; and as the allegations in a plea, if they 
 relate to the acts of others, however positively made in the plea 
 itself, are sworn to only upon tlie belief of the defendant. 4 Beav. 
 654. 
 
 But according to the case of Small v. Atlwood, a plea that the de- 
 fendant has been informed and believes that the plainlifF has no inter- 
 est in the suit is bad ; because, in this case, the onus piubandi being 
 on the defendant, since he undertakes to show that the plaintitT has no 
 interest, he must be as capable of stating his facts positively as of 
 proving them ; and if upon issue being taken upon the plea, he were 
 to prove his information and belief, that would not be an answer to the 
 bill. 1 Y. & C. Eq. Ex. 39. 
 
 (2) In a plea it is unnecessary to negative facts which would defeat Negativing facu 
 the plea, if they are not stated in the bill. But if the plea does con- "lii.* "" 
 tain averments neijiativing such facts, such averments are merely 
 superfluous; they do not vitiate the plea. Forbes v. Skelton, 8 Sim. 
 326. 
 
 " Where a bill alleges a fact, and alleges other circumstances calcu- pcnini of allega- 
 lated and tending to prove that fact, the defendant cannot plead the tions tending to 
 
 ° * r prove a fact de- 
 
 jiegative of the fact, without denying the statements and allegations in nicd by the pic*.
 
 S49 
 
 Answer as to 
 documents in 
 snpport of a ne- 
 f ative plea. 
 
 Plea of non-pay- 
 ment of pur- 
 chase money. 
 
 Plea of an agree- 
 ment to waive 
 an account. 
 
 Plea not traTcrs- 
 ing the material 
 fact. 
 
 PLEAS. [Chap. II. 
 
 merits are likewise necessary to exclude intend- 
 
 the bill which have a tendrncy to prove it." Denys v. Shuckburg, 6 
 Law J. (N. S.) 330, L. C. 
 
 If a defendant puts in a negative plea (such as a plea of no tith- 
 able things to a bill for tithes,) and there is a charge in the bill as to 
 documents from which the plaintiff's right to relief would appear, the 
 defendant must deny such charge by an answer in support of the 
 plea. Clayton v. The Earl of Winchester, 3 Y. & C. Eq. Ex. 426, 683. 
 See also note to p. 270. 
 
 If a defendant puts in a p^ea denying a partnership in a business, 
 and by his answer admits that lie is in possession of documents rela- 
 ting to the said biisiness, but, " save as aforesaid," denies that he has 
 any documents whereby the truth of the alleged matters would appear, 
 he admits that the truth of the contrary of the plea would appear by 
 evidence in his possession, and this renders the plea bad, although in 
 his answer he goes on to insist, that inasmuch as the documents in his 
 possession relate exclusively to his own title, and do not in any way 
 tend to support the plaintiff's claim, he is not bound to produce them. 
 Harris v. Harris, 3 Hare, 450. 
 
 A plea to a bill for discovery in aid of an ejectment, that the pur- 
 chase money contracted to be paid for the estate has not been paid or 
 released, is defective in not averring that the money is due, where, 
 from the circumstances of the case, it is probable that it was not the 
 intention of the parties that it should be paid: as where the convey- 
 ance was made by a father to his son, and although containing a re- 
 cital of an agreement for a sale to the son, was yet expressed to 
 be made in consideration of natural affection. Drake v. Drake, 3 
 Hare, 523. 
 
 If to a bill for an account of partnership transactions, by the ex- 
 ecutors of a deceased partner, the defendant pleads that for a certain 
 consideration a parol agreement was entered into between the de- 
 ceased partner and the defendant, that all accounts between the^Ti, and 
 all claims of the former in respect of the effects of the partnership and 
 the debts due to and from the same, should be waived ; such agree- 
 ment will be construed to be an agreement that the defendant should 
 take upon himself the discharge of such partnership liabilities (if any) 
 as remained to be satisfied ; and the plea will be overruled, if it does 
 not aver that no such liabilities still remained undischarged. Browny. 
 Perkins, 1 Hare, 564. 
 
 Where a bill is filed to establish a will of real estate, of which it 
 alleges several copies were executed, a plea that the will proved in 
 the ecclesiastical court, did not contain certain passages is bad, be- 
 cause it does not negative the fact that the will was as stated in the
 
 S. II. p. II.] PLEAS. 849 
 
 ments (1) which would otherwise be made against 
 the pleader ; and the averments must be sufficient 
 to support the plea (b). 
 
 If there is any charge in the bill, which is an 350 
 
 equitable circumstance in favor of the plaintiff's 
 case against the matter pleaded ; as fraud, or no- 
 tice of tide ; that charge must be denied by way of 
 answer, as well as by averment in the plea (c). In 
 this case the answer must be full and clear, or it 
 will not be effectual to support the plea (d) ; for the 
 court will intend the matters so charged against the rggm 
 pleader, unless they are fully and clearly denied 
 (e). But if they are in substance fully and clearly 
 
 (b) 2 Ves. 245: 2 Sch. & Lefr. (d) 3 Atk. 304 ; Radford v. Wil- 
 727 ; 18 Ves. 182. son, 3 Atk. 815 ; 3 P. Wms. 145 ; 5 
 
 (c) See the judgment in Bayley v. Bro. P. C. 561, Toml. Ed. 
 Adams, 6 Ves. 594 ; 2 Sch. &, Lefr. (e) 2 Atk. 241 ; Gilb. Ca. in Eq. 
 727; 2 Ves. &B. 364; 5 Madd.330; 185. As an example, see Hony v. 
 6 Madd. 64 ; 2 Sim. & Stu. 279 ; and Hony, 1 Sim. & Stu. 568. 
 
 see above, p. 281, et seq., and p. 299. 
 
 bill, but traverses the fact of the copy proved in the ecclesiastical 
 court being to the effect stated in the bill, which is quite immaterial 
 in regard to a question of real estate, as the ecclesiaetical court has 
 no jurisdiction in cases of real estate. Strickland v. Slrickland, 3 
 Beav. 224. 
 
 Where a defendant, in his answer to a bill for tithes of a mill, says pleading exemp- 
 that it is an ancient mill, built before living memory ; that no tithes *'°° ^''°™ "'i^es. 
 have ever been paid for it ; and that it has been always considered ex- 
 empt from tithes ; the exemption is well pleaded. Townley v. Cole- 
 gate, 2 Sim. 297. 
 
 " A negative plea, as to belief, of no mortgage, not going to material Negative plea u 
 collateral charges tending to that point, is too loose and general." to belief. 
 Arnold V. Ileafield, 1 M'Cleland & You. 330. 
 
 (1) [The meaning of an intendment is, that allowing an averment 
 to be true, but that at the same time a case may be supposed consist- 
 ent with it, which would render the averment inoperative as a full de- 
 fence, such case shall be presumed, unless specifically excluded by 
 particular averment ; as where a proposition in the disjunctive is not 
 denied in both its par's, or a proposition in the conjunctive affirmed in 
 both its parts. Lube, 343.]
 
 350 PLEAS. [Chap. II. 
 
 denied, it may be sufficient to support the plea, al- 
 though all the circumstances charged in the bill 
 
 351 may not be precisely answered (/) (1). Though 
 the court upon argument of the plea, may hold 
 these charges sufficiently denied by the answer to 
 exclude intendments against the pleader, yet if the 
 plaintiff thinks the answer to any of them is eva- 
 sive, he may except to the sufficiency of the answer 
 in those points. A defendant may also support his 
 plea by an answer touching any thing not charged 
 by the bill, as notice of a tide, or fraud ; for by such 
 an answer nothing is put in issue covered by the 
 plea from being put in issue ( g), and the answer 
 can only be used to support or disprove the plea 
 (Ji). But if a plea is coupled with an answer to 
 any part of the bill covered by the plea, and which 
 consequently the defendant by the plea declines to 
 answer, the plea will upon argument be overruled 
 
 (i) (2)- 
 
 Where facts appeared upon an answer to an ori- 
 ginal bill, which would operate to avoid the de- 
 
 (/) 5 Bro. P. C. 561, Toml. Ed. (i) Cottington v. Fletcher, 2 Atk. 
 
 (g-) Gilb. For. Rom. 58, 59. 155; GKlb. For, Rom. 58. 
 
 <A) See 3 Atk. 303. 
 
 (1) [The only way of testing the sufficiency of an answer in sup- 
 port of a plea is, to consider every allegation in the bill which is not 
 sufficiently denied by the answer as true ; and then to inquire, whe- 
 ther, these facts being admitted, the plea is a sufficient bar to the claim 
 of the complainant for relief. Chancellor Walworth, in Bogardus v. 
 Rector, tf-c. oj Trinity Church, (4 Paige's R. 178.)] 
 
 (2) [Souzer v. De Meyer, 2 Paige's C. R. 674 ; Bogardus v. Rector 
 iSfC. of Trinity Church, 4 Id. 178.] Watkins v. Stone, 2 S. & S. 560. 
 By the 37th order of Aug. 1841, " no plea shall be held bad and over- 
 ruled upon argument, only because the answer of the defendant may 
 extend to scftne part of the same matter as may be covered by such de- 
 murrer or plea."
 
 S. II. p. II.] PLEAS. * 351 
 
 fence made by plea to an amended bill, the answer 
 to the original bill was read on the argument of the 
 plea, to counterplead the plea (k) ; so it should 
 seem if the answer to an original bill would dis- 
 prove an averment in a plea to an amended bill, 
 the court might permit it to be read for that pur- [-300] 
 pose (Z). 
 
 2. A plea, like a demurrer, is introduced by a 352 
 
 protestation against the confession of the truth of - formofpieM. 
 any matter contained in the bill. For the purpose 
 of determining the validity of the plea, the bill, 
 so far as it is not contradicted by the plea (m), is 
 taken for true ; and the protestation has probably 
 been used to prevent the same conclusion for 
 other purposes. The extent of the plea, that is, 
 whether it is intended to cover the whole bill, or a 
 part of it only, and what part in particular, is usually 
 stated in the next place : and this, as before obser- 
 ved (n), must be clearly and distinctly shown (1). 
 
 ik) Hyliard v. White, in Cha. 15th (m) See Plunlet v. Penson, 2 Atk. 
 
 March, 1745. 51 ; 15 Ves. 377. 
 
 (I) See the case of Hildyard v. (n) Page 343. 
 Cressy, 3 Atk: 303. 
 
 (1) [In the case of Leaijcrafl v. Dertifsey, 4 Paige's Ch. R. 124, 125, 
 Cliancellor VValwortli has properly sliovvn how he will notice a want 
 of form in ple'iding. The error had not been found out by the oppo- 
 sing counsel. An answer and plea were put in. The plea went upon 
 a stated account up to a certain time, and the answer took up the 
 matter from such period. The answer preceded the plea; and the 
 pleading commenced by a statement of its being, " The answer and 
 ■plea of J. D., defendant, to the bill of complaint, &c." It then went 
 on wit!) the usual saving and reservation of errors ; and " for answer 
 thereto, or to so much tiiereof us this defendant is advised, it is material 
 or necessary for her to make answer unto, answering, says, «S:c." And 
 ended, witli a denial of combination, and the general traverse. The 
 answer was limited as to discovery to the extent intended. And in 
 
 29
 
 352 PLEAS. [Chap. II. 
 
 The matter relied upon as an objection to the ju- 
 
 coming to the plea, the usual commencement occurred. " And as to 
 60 much and such parts of the said bill as seeks an account of the 
 said one equal third part of a net moiety of the rents and profits of the 
 said leasehold premises prioc to the first day of February, one thousand 
 eight hundred and thirty-one, and including the quarters' rents due 
 that day, this defendant for plea thereto, sailh, &c." The folbwing 
 is the chancellor's opinion : " The plea in this case is a sufficient de- 
 fence to so much of the bill as seeks an account and satisfaction of the 
 rents and profits of the premises in the bill mentioned up to and inclu- 
 ding the 1st of February, 1831. But it is defective in a point of form, 
 as being overruled by the answer. It is not necessary to decide the 
 question, whether any of the facts stated in the answer do, in fact, 
 cover the part of the bill intended to be covered by the plea. I am 
 inclined to think, however, they do not. But, by referrinii to the com- 
 mencement of the answer, it will be seen, that it purports to be an 
 answer to the whole of the bill, without excepting those parts to which 
 the defendant has pleaded in bar both to the discovery and relief. 
 The defendant may plead, answer and demur to the same bill ; but 
 each of these defences must refer to and profess, in terms, to be put 
 in as a defence to separate and distinct parts of the bill. Thus, if an 
 answer commence as an answer to the whole bill, it will overrule a 
 plea or demurrer to any particular part of the bill, although the defen- 
 dant does not, in fact,' answer that part of the bill which is covered by 
 the plea or demurrer. Lord RedesJale says, if the plea is to part of 
 the bill only, and there is an answer to the rest, it is expressed to be 
 an answer to so much of the bill as is not before pleaded to, and is 
 preceded by a protestation against tlie waiver of the plei. (Mitf. PI. 4 
 Lond. ed. 300.) In practice, the plea or demurrer usually precedes 
 the answer, which in that case commences thus : ' And as to the re- 
 sidue of the said bill, this defendant, not waving his said plea but re- 
 lying thereon, and saving and reserving to himself, &c., for answer 
 theretOjOr to so much thereof as he is advised is material, &c.' Lube's 
 Eq. PI. 352. I see no objection, except as to the convenience, of re- 
 ference, in permitting the answer to precede the plea, as has been 
 done in the presfent case, but then the pleader must, hy a reference to 
 the part of the bill, which is subsequently covered by the plea, or 
 otherwise show that it is an answer, to the residue of the bill only. 
 As the answer in this case commences and-concludes as an answer 
 to the whole bill, in the same manner as if it was not intended to be 
 followed by a plea as to part, in point of form the plea is overruled by 
 the answer, and cannot, therefore, be allowed. 
 
 As this plea, however, is a full defence to' so much of the bill as it
 
 S. II. p. II.] PLEAS. * 352 
 
 risdiction of the court, to the person of the plaintiff 
 or defendant, or in bar of the suit, generally fol- 
 lows, accompanied by such averments as are ne- 
 cessary to support it. The plea commonly con- 
 cludes with a repetition that the matters so offered 
 are relied upon as an objection or bar to the suit, 
 or so much of it as the plea extends to ; and prays 
 the judgment of the court, whether the defendant 
 ought to be compelled further to answer the bill, or 
 such part as is thus pleaded to. If the plea is ac- 
 companied by an answer merely to support it, the 
 answer is stated to be made for that purpose, not 
 waiving the plea. If the plea is to part of a bill 
 only, and there is an answer to the rest, it is ex- 
 pressed to be an answer to so much of the bill as [301] 
 is not before pleaded to, and is preceded by the 
 same protestation against waiver of the plea. 
 
 3. A plea (o) is filed hke a demurrer in the pro- pu^^T^^^""* 
 
 (o) A plea must be signed by couu- below, p. 376, as to the taking of an 
 sel, unless taken by commissioners, answer. 
 Simes v. Smitfi, 4 Madd, 366. See 
 
 professes to cover and is merely informal, m consequence of the In- 
 advertence of tlie solicitor in not excepting that part of the bill in the 
 commencement of his answer, it would be a matter almost of coiyse to 
 permit him to amend on payment of costs. As the cause must go to 
 a hearing upon tlie other part of the bill, it will be equally beneficial 
 to the defendant if'I permit the plea to s^tand for an answer. 1 shall, 
 therefore, direct it to stand fur an answer, declaring it as a goid de- 
 fence if established by proof, to s^o much of the bill as seeks for an ac- 
 count and satisfaction of the roiits and profits up to and incUiding the 
 1st February, 1831 ; and that the complainant is not, by exceptions, 
 to be permitted to .call for an account for those rents and profits, or 
 any furtlier answer as to that part of tlie bill. Thig, however, will not 
 preclude the comp'ainant from excepting to the answer to the other 
 jparts of the bill, if it is insufficient. {Coke v. Wilcox, Mos. Rep. 74.) 
 And the defendant must pay the costs of the argument of the plea."]
 
 on them 
 
 353 PLEAS. [Chap. II. 
 
 per office ; and pleas in bar of matters in pais (o), 
 must be upon oath of the defendant ; but pleas to 
 the jurisdiction of the court, or in disabihty of the 
 person of the plaintiff (^), or pleas in bar of any 
 matter of record, or of matters recorded, or as of 
 record in the court itself (q), or any other court (r), 
 need not be upon oath (1). 
 4-^Pr^ceeding8 4. If fj^Q plaintiff conceivcs a plea to he defective 
 in point of form or substance, he may take the 
 judgment of the court upon its sufficiency. And 
 if the defendant is anxious to have the point de- 
 termined, he may also take the same proceeding (2). 
 Upon argument of a plea it may either be allowed 
 simply, or the benefit of it may be saved to the 
 hearing, or it may be ordered to stand for an an- 
 swer. In the first case the plea is determined to 
 be a full bar to so much of the bill as it covers, if 
 the matter pleaded, with the averments necessary 
 to support it, be true. If, therefore, a plea is al- 
 
 (o) Prac. Reg. 325, Wy. Ed. corded be accompanied with aver- 
 
 (p) Ord. Ch. 27, 172, Ed. Bea. meiits of matters in pais, it must be 
 
 (9) Prac. Reg. 324, Wy. Ed. upon oath. Wall v. Stubbs, 2 Ves. 
 
 (r) But if a plea of matters re- & Bea. 354 ; see above, pp. 265-268. 
 
 (J.) [Carroll v. Waring., 3 Gill. &l Johns. 491. Leave to withdraw 
 a plea will not be given. Kirby v. Taylor, 6 J. C. R. 242. There 
 can be no demurrer to a plea., If supposed insulBcient, it may be set 
 down for argument. Thomas's Trustees v. Brashea. 4 Monroe's R. 
 67.] 
 
 (2) [See above. By the practice of the State of New York, the 
 complainant has ten days to file a replication to the plea or to amend 
 his bill; and if he does not take issue on the plea or amend his bill 
 within that time, either party may notice the plea for argument at the 
 next or any subsequent term. If the plea is allowed, the complainant 
 may, within ten days after notice of such allowance, take issue on the 
 plea upon payment of the hearing therein. 47th Rule. As to a de- 
 fendant pleading matter of record, see 48th Rule.]
 
 S. II. p. II.] PLEAS. 353 
 
 lowed upon argument, or the plaintiff without a;r- 
 gument thinks it, though good in form and sub- 
 stance, not true in point of fact, he may take issue 
 upon it, and proceed to disprove the facts upon [302] 
 which it is endeavoured to be supported (s). For 
 if the plea is upon argument held to be good, or 
 the plaintiff admits it to be so by replying to it (t), 
 the truth of the plea is the only subject of question 354 
 
 remaining, so far as the plea extends ; and nothing 
 but the matters contained in the plea, as to so much 
 of the bill as the plea covers, is in issue between 
 the parties (ti). If therefore issue is thus taken 
 upon the plea, the defendant must prove the facts 
 it suggests (x). If he fails in this proof, so that, at 
 the hearing of the cause, the plea is held to be no 
 bar, and the plea extends to discovery sought by 
 the bill, the plaintiff is not to lose the benefit of that 
 discovery, but the court will order the defendant to 
 be examined on interrogatories, to supply the de- 
 fect (?/). But if the defendant proves the truth of 
 
 (s) Prac. Reg. 330, Wy. Ed. (1). (x) Mos. 73 ; 2 Ves. 24; ; Ord v. - 
 
 (0 1 Vera. 72, Prec. iu Ch. 58 (2). Huddleston, Dick, 510. 
 
 (u) 3 P. Wms. 95; Parker v. (y) Nels. Rep. 119; Astley v. 
 
 Blythmore, Prec. iu Chan. 58. See Fountaine, Rep. Tem. Finch, 4; 2 
 
 Cooper V. Tragonnel, 1 Ch. Rep. Ves. 247 ; 6 Madd. 63 ; 2 Sim. & 
 
 174 (3). Stu. 278 (4). 
 
 (1) [i^ee 47th Rule of N. Y. Chancery. In Bogardus v. Hector, 
 <^c. of Trinity Church, 4 Paige's R. 178, Chancellor Walworth al- 
 lowed a plei, and ordered the bill to be dismissed with costs: unless, 
 within twenty days, the complainant should pay the costs of the argu- 
 ment of the plea and file a replication to the answer. 
 
 (2) [Hughes V. Blake, 6 Wheat. 472 ; Doivs v. M'Michael, 2 Paige's 
 C. R.345.] 
 
 (3) [The issue, as to the truth of the plea, is to be referred to tl.e 
 state of the facts at the time of filing the pica. Cook v. Mancius, 4 
 J. C. R. 166.] 
 
 (4) [Snuzerv. De Meyer, 2 Paige's C. R. 574. A plea which sets
 
 854 PLEAS. [Chap. II. 
 
 the matter pleaded, the suit, so far as the plea ex- 
 tends, is barred (z), even though the plea is not good 
 either in point of form or substance. Therefore, 
 where a defendant pleaded a purchase for a valu- 
 able consideration, and omitted to deny notice of 
 the plaintiff's title, and the plaintiff ^'replied, it was 
 [303] determined that the plea, though irregular, had 
 been admitted by the replication to be §ood, and 
 that the fact of notice not being in issue, the de- 
 fendant, proving what he had pleaded, was enti- 
 tled to have the bill dismissed (a). 
 
 If upon argument the benefit of a plea is sav^d 
 to the hearing, it is considered that. so far as ap- 
 pears to the court it may be a defence ; but that 
 there may be matter disclosed in evidence which 
 355 would avoid it supposing the matter pleaded to be 
 
 strictly true ; and the court therefore will not pre- 
 clude the question (2). 
 
 When a plea is ordered to stand for an answer, 
 it is merely determined that it contains matter which 
 may be a defence, or part of a defence ; but that 
 it is not>a full defence, or it has been informally of- 
 fered by way of plea, or it has not been properly 
 supported by answer, so that the truth of it is doubt- 
 ful. For if a plea requires an answer to support it, 
 upon argument of the plea the answer ma'y be read 
 
 (z) See WicAaZse V. iSAor^, 3 Bro. (a) HanisY.Ingledew,^Y.Wtas. 
 P. C. 558 (1). 94, 95. 
 
 up no valid defence to any part of tlie matter it professes to cover, 
 should be overruled absolutely, and will not be permitted to stand for 
 an answer. Orcutl v. Orms, 3 ib. 459.] 
 
 (1) [Hughes V. Blake, supra; Dowsv. JSV Michael swpra.'] 
 
 (2) [By the practice of the State of New York, there cannot be a 
 plea after one has been overruled. 49th Rule ; and see Rowley v. 
 Eccles, 1 Sim. & S. 611.]
 
 [304] 
 
 S. II. P. II.] PLEAS. 355 
 
 to countcrprove the plea ; and if the defendant ap- 
 pears not to have sufficiently supported his plea by 
 his answer the plea must be overruled, or ordered to 
 stand for an answer only (b). A plea is usually 
 ordered to stand for an answer, where it states 
 matter which may be a defence to the bill, though 
 perhaps not proper for a plea, or informally plead- 
 ed (c). .But if a plea states nothing which can be 
 a defence it is merely overruled (3). If a plea is 
 ordered to stand for an answer, it is allowed to be 
 a sufficient answer to so much of the bill as it cov- 
 ers (d), unless by the order Jiberty is given to ex- 
 cept (e). But that liberty may be qualified, so as 
 to protect the defendant from any particular discov- 
 ery which he ought not to be compelled to make (/). 
 
 (6) See Hildi/ardv. Cressy, 3 Alk. (e) Sellon v. Lewen, 3 P. Wms. 
 
 304 (1). 239 ; Maitland v.. Wilson, 3 Atk. 
 
 (c) As examples, see Moore v. 814. Sco Dryden v. Robinson, 2 
 
 Hartal Vern. 110; S. C. ibid. 201 ; Sim. & Stu. .529 (4). 
 
 Kemp V. Kelsey, I'rec. \n Cha. 544; (/) See Alardes v. Campbell, 
 
 S<ilkeld V. Science, 2 Ves. 107 ; Bunb. 265 ; S. C. 1 Turn. R. 133, 
 
 WUithread v. Brockhurst, 1 Bio. C. note ; Herbert v. Montagu, Finch. 
 
 C. 404; (2) S. C. 2 Ves. & B. 153, R. 117; Brereion v. Gamut, 2 Atk. 
 
 note; Wkitcharch v. Beois, 2 Bro. 240; Pusey v. Desbnuvric, 3 P. 
 
 C. C. 559; Wood v. Strickland, 2 Wms. 315; King v. Holcombe, 4 
 
 Ves. & B. 150. Bro. C. C. 439; Bayley v. Adams, 
 
 {d) Coke V. Wilcocks, Mos. 73 ; 6 Ves. 586. 
 3 P. Wms. 240 ; 3 Atk. 815. 
 
 (l; [Also Kirbyv. Taylor, 6 J. C. R. 242.] 
 
 (2) yOrcuU V. Orms, 3 Paige's C. R. 459. And see Souz-r v. De 
 Meyer, 2 Paige's C. R. 574. Where a plea has been overruled on the 
 meritS; the same matter cannot be set up in the answer as a bar to 
 the suit, without the special permission of the court. Townsend v. 
 Tuwnsend, 3 lb. 413.J 
 
 (3) [Orcull V. Orms, 3 Paige's C. R. 459.] 
 
 (4) [Kirhy v. Taylor, 6 J. C. R. 242 ; OrcuU v. Orms, snpra. In 
 this" case {OrcuH v. Orms,) Chancellor Walworth has said, that the 
 answer will be considered as a full answer, though not necessarily a 
 perfect defence.]
 
 356 PLEAS. [Chap. II. 
 
 And if a plea is accompanied by an answer, and 
 is ordered to stand for an answer, without liberty 
 to except, the plaintiff may yet except to the answer, 
 as insufficient to the parts of the bill not covered 
 by the plea (/). If a plea accompanied by an an- 
 swer is allowed, the answer maybe read' at the 
 hearing of the cause tocounterprove the plea («•) (1). 
 There are some pleas which are pleaded with 
 such circumstances that their truth cannot be dis- 
 puted ; and others being pleas of matter of fact, the 
 truth of which may be immediately ascertained by 
 [S05] mere inquiry, it is usually referred to one of the 
 masters of the court to make the inquiry. These 
 pleas, therefore, are not usually argued (h). Thus 
 pleas of outlawry or excommunication (3), being 
 always pleaded sub sigillo, the truth of the fact 
 pleaded is ascertained by the form of pleading, and 
 the suit is consequently delayed until the disability 
 shall be removed, unless the plaintiff can show that 
 the plea is defective in form, or that it does not ap- 
 ply to the particular case, and for these purposes he 
 may. have the plea argued. Pleas of a former 
 
 357 decree (i), or of another suit depending (k), are 
 
 (/) Cock V. Wilcocks, Mos. 73. been allowed, Taylor v. Shaw, 2 
 (g-) 3 Atk. 304. But the plaintiff Sim. & Stu. 12. (2) 
 
 may not amend his bill as of course (h) Ord. in Ch. 17.5, Ed. Bea. 
 
 after a plea to part of the bill has (i) Morgan v. Morgan, 1 Atk. 53. 
 
 {k) Ord. in Ch. 98, ed. 1739. 
 
 (1) [After a plea has been overruled, the same defence may be in- 
 sisted on by way of answer. Goodrich v. Pendleton, 4 J. C. R. 549. 
 But this is not so, upon a plea of the statute of limitations. Carter 
 \. Murray,lJ. C. R. 167.] 
 
 (2) [If a plea be overruled, the complainant may, within ten days 
 thereafter, amend his hill of course and without costs. 45ih Rule of 
 N. Y. Chancery.] 
 
 (3) This disability is removed by the stat. 53 Geo. IK. c. 127, J 3.
 
 S. II. r. III.] ANSWERS. 357 
 
 generally referred to a master to inquire into the 
 fact ; and if the master reports the fact true, the bill 
 stands instantly dismissed, unless the court other- 
 wise orders (Z). But the plaintiff may except to 
 the master's report and bring on the matter to be 
 argued before the court (m) ; and if he conceives 
 the plea to be defective, in point of form or otlier- 
 wise, independent of the mere truth of the fact 
 pleaded, he may set down the plea to be argued 
 as in the case of pleas in general (n). 
 
 CHAPTER II. 
 Section II. — Part III. 
 
 Of Answers and Disclaimers ; and of Demurrers, xP^^l 
 Pleas, Answers, and Disclaimers, or any two 
 or more of them, jointly. 
 
 If a plea is overruled, the defendant may insist 
 on the same matter by way of answer (a). And 
 whatever part of the bill is not covered by demur- 
 
 (l) See Crofts v. Worthy, 1 Ca. See Urlin v. - — , 1 Vern. 332 ; and 
 
 in Ch.241. See above, pp. 278, 288. Foster v. Vassall, 3 Atk. 587. 
 
 {m) Durrandv. Hutchinson, Mich. (a) 2Ves. 492; Earl of Suffolk v. 
 
 1771, on Exceptions. Green, 1 Atk. 450 ; 1 Cox, R. 228 (1). 
 
 («) Old. in Ch. 176, Ed. Bea. 
 
 (1) [S.P. Goodrich \. Pendleton, 4 J. C. R. 549. But see Carter 
 V. Murray, 7 ib. 167 ; and particularly the observations of Suther- 
 land, J., in (S. C.) Murray v. Custer, 4 Cow. 620. It is said, in 
 Townsend v. Townsend, 2 Paige's C. R. 413, that svhcre a plea has 
 been overruled on the merits, t^iasame matter cannot be set up in the 
 answer as a bar to the suit, witiiout the special permission of the 
 court.] 
 
 If the defendant has a eubstantial defence wliich cannot avail iiim 
 under his plea, from inaccuracy in pleading, he may claim the full 
 benefit of such defence by his answer. 1 Green's Ch. R. 338.
 
 357 ANSWERS. [Chap. II. 
 
 rer or plea, must be defended by answer (b), un- 
 less the defendant disclaims (1). In treating of 
 
 358 answers and disclaimers will be considered — 1. 
 The general nature of answers ; 2. Their form ; 3. 
 The manner in which their sufficiency is decided 
 upon, and deficiency supplied ; and 4. The nature 
 and form of disclaimers. 
 
 Sverin*/w"ti8 !• It hjas been already (c) mentioned, that eveiy 
 ™*^"" plaintiff is entitled to a discovery from the defend- 
 
 ant of the matters charged in the bill (d) (2), pro- 
 [307] vided they are necessary to ascertain facts mate- 
 rial to the merits of his case, and to enable him to 
 obtain a decree (3). The plaintiff may require this 
 
 (b) Prac. Reg. Wy. Ed. they should have but one common 
 
 (c) Page 9. defence. Van Saudau v. Moore, 1 
 
 (d) Where the defendants are nu- Russ. R. 441, on appeal. See S.G.2 
 merous, each, it seems, is entitled to Sim. & Stu. 509. [But see 1 Head- 
 put in a separate answer, although lam's Dan. C P. 695.] 
 
 (1) See note to p. 380. 
 
 (2) See note to p. 52, 
 
 An^^^erofasole The 17th, 18th, and 19th orders of August 1841, do not apply to 
 the case of a sole defendant. Lynch v. Lecesne, 12 Law J. (N.'S.) 
 127, V. C. W, 
 
 Necessity of put- If a bill requires a defendant to answer, but he is not required to 
 swer,'tho°i^hnot a^swer any of the interrogatories by a note at the foot of the bill ; in 
 required to an- gugh case he need not answer any of the interrogatories, but he must 
 
 8wer any inter- j o ' 
 
 rogatory. put in some answer: for he is only exempted from giving a discovery 
 
 of facts, and not from stating his line of defence. Wilson v. Jones ^ 
 7 Jur. 1102, V. C. E. 
 
 (3) See Jansonw. Solarte, 2 Y. & C. Ex. 132. 
 
 Answer as to ir- The rule that where a defendant submits to answer, he must answer 
 relevant matter. ^ ,, , , . , , ,. , r . i- 
 
 fully, does not apply in such a way as to oblige a deiendant to discover 
 that which would be altogether immaterial to the relief sought by the 
 bill. ( Wood V. Hitchings, 3 Beav. 504 ; Codrington v. Codringfon, 3 
 Sim. 519.) For he need not answer &.t all as to such irrelevant mat- 
 ter ; or, if it is desirable for his own interest, he may answer only as 
 to a part of it. Wood v. Hitchings, 3 Beav. 504. 
 
 Where an information, after alleging a misapplication of certain
 
 S. II. p. III.] ANSWERS. 359 
 
 discovery, either because he cannot prove the facts, 
 or in aid of proof, and to avoid expense (e). He 
 is also entitled to a discovery of matters necessairy 
 to substantiate the proceedings, and make them re- 
 gular and effectual in a court of equity (/). How- 
 ever, if the discovery sought by a bill is matter of 
 scandal (1), or will subject the defendant to any 
 pain, penalty, or forfeiture (2), he is not bound to 
 
 (e) 2 Alk. 241. (/) 2 Yes, 492; G Ves. 37, 38, 
 
 Coop. 6.214. 
 
 funds vested in the defendants upon certain trusts, alleges that there 
 are certain other funds vested in lije de'endant< upon the like trusts, 
 but it does not charge any misapplication of such other funds, or any 
 thing whirh can show that the interference of the court is necessary 
 with respect to them, the allegation as to the last-mentioned funds is 
 irrelevant, and therefore need not to be answered. Allorneij Gen. v. 
 Merchant Tailor's Company, 5 Sim. 328. 
 
 (1) Where new matter which occurred" subsequently to the filing da™u7'^atter*" 
 of an original bill is improperly introduced by amendment, instead of by originally inta-o- 
 1 1 , 11 ' 1 1 • 11- . duced byamend- 
 
 asupp'enieiitAl bill, and that matter contains ?candalou.- imputations on ment. 
 
 the character of the defendant, the defendant may answer that matter 
 
 in order to clear his charac'er, without preventing the bill from being 
 
 dismissed with costs on the ground of the irregularity of introducing 
 
 the new matter by amendment. Wray v. Hukhinso?i, 2 M. &, K. 
 
 235. 
 
 (2). A defendant is not only not bound to answer any question Exemption 
 
 which has a direct tendency to criminate iiim, but he is not bound to q'il'c^tions^tend- 
 
 answer any question the answer to which may form a link in the o°Ao°ex"ose"?he 
 
 chain of evidence. Souihall v. , 2 Coll. Ex. Eq. 308. defendant to a 
 
 .,„,.,,., i-i,- forfeiture. 
 
 A defendant is not obliged to answer so as to expose himself to a 
 
 forfeiture. So that an heir at law is not obliged to answer interroga- 
 tories as to the testator's sanity, where there is a clause in the will re- 
 voking an annuity in the event of tiie heir disputing his will or his com- 
 petency to make it. And he may avail iiimself of this exemption al- 
 though he answers in part, and in so doing he may have made admis- 
 sions which subject him to the operation of the revocation clause. 
 Cooke V. Turner, 14 Sim. 218. 
 
 And so a husband who obtained his inarria;:e license by falsely 
 swearing that the 4)arent's consent to the marriage was given, nviy by 
 answer decline answering questions relating to the minority of the
 
 360 ANSWERS, [ClIAP. II. 
 
 make it (g) ; and if he does not think proper to de- 
 fend himself from the discovery by demurrer or plea, 
 according to the circumstances of the case, he has 
 been permitted by answer to insist that he is not 
 obliged to make the discovery {h). In this case 
 
 (g) 15 Ves. 378 ; and see authori- 2 Ves. Jun. 454 ; S. C. 4 Bro. C. C. 
 
 ties cited above, p. 228 (1). 322 ; 15 Ves. 378 ; 1 Ball & B. 325 ; 
 
 (A) 3 P. Wms. 238 ; Finch v. and see Lord Radcliffe v. Parkyns, 
 
 Finch, 2 Ves. 491; Honeywood v. 6 Dow P. C. 230; but see Ovey v. 
 
 Selwin, 3 Atk. 276; Paxton v. Leighton, 2 Sim. & Stu. 234). 
 
 Douglas, 19 Ves. 225 ; Parkhurst v. It seems that in every other ease, 
 
 Lowten, 1 Meriv. 391; 1 Svvanst. even in that of a mere witness being 
 
 192, 305 (2). It has also been held, made a defendant (see Cookson v. 
 
 that a purchaser for a valuable con- Ellison, 2 Bro. C. C. 252: Cart- 
 
 sideration, without notice, may by wright v. Hately, 3 Bro. C. C. 238 ; 
 
 answer protect himself from making Shepherd v. Roberts, 3 Bro. C. C. 
 
 discovery of facts which might defeat 239; 7 Ves. 288; 11 Ves. 42; but 
 
 his enjoyment. {Jerrard v. Sanders, see Newman v. Godfrey, 2 Bro. C. C 
 
 lady, and the non-consent of her parent, in an information under the 
 Marriage Act, 4 Geo. IV. c. 76, s. 23, praying for a declaration that 
 he has forfeited his interest in his wife's property : for such a case is 
 within the general rule as to forfeiture. Attorney Gen. v. Lucas, 2 
 Hare, 666. 
 
 But a party cannot protect himself from discovering whether the con- 
 sideration of a security on which he has brought an action against 
 the plaintiff in equity was money lent at play, although the stat. 9 
 Anne, c. 14, s. 1, makes securities for money so lent void ; for such a 
 discovery does not subject the defendant in equity to a penalty or for- 
 feiture, but merely prevents him from succeeding in his action. Slo- 
 
 man v. K'dley, 4 Y. & C, Eq. Ex. 169. 
 Answer to inter- ^ ^ 
 
 rogatories in Where the interrogatories of a bill relate to matters as to which 
 
 towliich the de- 'he plaintiffis entitled to a discovery, and also to other matters an ad- 
 owfeed to "an- ^'.ss'on of wHich would subject the defendant to an indictment or pen- 
 ewer are mixed alties, and which do not form the foundation of any part of the relief 
 up with others. , . , . i , ^ , • .,.,,. 
 
 which is prayed, and the two subjects are so mixed in the interroga- 
 tories that the defendant cannot separate thoin in his answer, the plain- 
 tiff cannot insist upon an answer to any part of the interrogatories, 
 Earl of Lichfield v. Bond, 12 Law J. (N. S.) 329, M. R. 
 
 (1) [And also page 195, ante; Liiingston v. Harris, 3 Paige's C. 
 R. 628. 
 
 (2) [And see Cnlyer v. Bogert, 3 Paige's C. R. 186.]
 
 S. II. p. III.] ANSWERS. 361 
 
 the plaintiff may except to the defendant's answer [308] 
 
 332), unless perhaps he be a profes- to answer all the facts stated in the 
 sional person, and the discovery he bill, from which he does not distinctly 
 sought of matters confidentially com- protect himself from answering by 
 municated to him (1). Stratford v. either of the other modes of defence 
 Hogan,2 Ball & B. 164; if a person " (2). See Doliler v. Lord Hunting- 
 answers at ali, he may be required field, 11 Ves. 283, in which the ear- 
 
 (1) As the cases respecting privileged communications and docu- 
 ments, and respecting matters relating to the defendant's title, which 
 have been specially noticed by Lord Redesdale, and those upon the 
 same subject which have been adjudged during the period to which 
 the editor's labors are confined, embrace only a portion of that subject; 
 and as that subject is of considerable extent, and involved in much 
 controversy and difficulty, and comprises many cases which are more 
 properly practice cases than cases on pleading, the editor deems it 
 advisable to refer the reader to the learned works on Discovery by Sir 
 James VVigram and Mr. Hare, and to Mr. Daniell's valuable Treatise 
 on Chancery Practice, in which (as the editor believes) a complete 
 view of the points referred to in this note may be obta ned. A state- 
 ment of some decisions only might tend to mislead. Of the cases on 
 privileged communications and documents, within the last twenty 
 years, the following may, however, be named: Flight v. Rvbinson, 8 
 Beav. 22 ; Holmes v. Baddeley, 6 Beav. 521 ; Steele v. Stewart, 13 Sim. 
 633, and 1 Phil. 471 ; Mayor and Corporation of Dartmouth v. Holds- 
 worth, 10 Sim. 476; Garland \. Scott, 3 Sim. 396; Mad nv. Veeiers, 7 
 Beav. 489 ; Hughes v. Garnons, 6 Beav. 352 ; Desborough v. Raiolins, 
 3My. & C. 515; Greauleafv. King, 1 Beav. 137; Woodsv. Woods,4. 
 Hare, 83 ; Preston v. Carr, 1 Y. & J. ; Greenough v. Gaskell, 1 M. & 
 K. 100; Earl of Glengall v. Frazer, 2 Hare, 99, 105; Alt. Gen. v. 
 Lucas, 2 Hare, 566; ClngeU v. Phillips, 2 Y. & C. Ch. C. 82; Her- 
 ring V. Cloberry, 1 Phil. 91,93; Lord Walsim^ham v. Goodriche, 3 
 Hare, 122 ; Bolton v. Corporation of Liverpool, 1 M. »fe K. 95 ; Hughes 
 v. Biddulph,4 Russ. 190. 
 
 (2) By the 38th order of Aug. 1 841 ," a defendant shall be at liberty 
 by answer to dec'ine answering any interrogatory or part of an inter- 
 rogatory, from answering which he might have protected himself by 
 demurrer; and he shall be at liberty so to decline, notwithstanding he 
 shall answer other parts of the bill from which he might have protected 
 himself by demurrer. 
 
 Where a bill seeks to set aside an agreement for the purchase of a Discovery of a 
 secret, on the ground of fraud and of the defendant possessing no such swcrto abiUfor 
 secret, the defendant cannot demur to such of the interrogatories as p';"c"fa8'^'^he^Q* 
 seek a discovery of the nature of the secret, although by the agree- of.
 
 861 ANSWERS. [Chap. II. 
 
 as insufficient ; and upon that exception it will be 
 
 ier caaeaaTe Cited. Faulderv. Stuart, 6. See, however, the distinction 
 
 11 Ves. 29G; Shaw v. Ching, 11 taken below, pp. 3C9, 370, 312, be- 
 
 Ves. 303 ; Rowe v. Teed, 15 Ves. tween the cases in whicli the defen- 
 
 372 ; Somerville v. Mackaij, IG Ves. dant by answer denies the title of the 
 
 382 ; Leonard w. Leonard, 1 Ball. & plaintiff, in respect of which the dia- 
 
 B. 323 ; 3 Madd. 70 ; v. Harri- covery is sought, and those in which 
 
 son, 4 Madd. 252, ani 1 Sim. & Stu. he thereby denies the validity of the 
 
 ment, as stated in the bill, both parties covenant that they will not di- 
 vulge or make known the secret ; and although the defendant, in his 
 answer to the remainder of the bill, denies all fraud, and insists on the 
 efficacy of the secret process, and that he had communicated the 
 secret to the plaintiff. For the defendant is bound to discover the na- 
 ture of the secret, because a disclosure is necessary even for the trial 
 of the case ; inasmuch as the only mode in which such fraud can 
 be established, is, by comparing that .which the defendant alleges to 
 be his secret with that which was commonly or previously known to 
 other persons. Carter v. Goetze, 2 Keen, 581. 
 
 Prior to the 38th order of August, 1841, it was a rule that he who 
 answered at all must answer fully, so that a defendant who did not 
 Necessity for protect himself from answering by plea, on the ground that he was a 
 ^ ^" purchaser for valuable consideration without notice, but submitted to 
 answer in part, could not protect himself, on the ground of his purchase, 
 from answering fully. Otey v. Leighlon, 2 S. & S. 234. And if a 
 defendant was interrogated as to whether he had purchased certain 
 judgments, and if so, for what considerations, and he did not demur or 
 plead, but admitted by answer that he purchased such incumbrances ; 
 he 6ould not refuse to discover what he gave for them, although he 
 said that he was a purchaser for valuable consideration, without no- 
 tice of the plaintiff's f quity. Lancaster v. Eicrs, 1 Phil. 349. 
 
 By the 38th order of Aug. 1841, " a defendant shall be at liberty by 
 answer to decline answering any interrogatory or part of an interroga- 
 tory, from answering which he might have protected himself by de- 
 murrer; and he shall be at liberty so to decline, notwithstanding he 
 shall answer other parts of the bill from which he might have pro- 
 tected himself by demurrer." 
 
 According to some decisions, this order applies where the bill is gene- 
 rally demurrable, as well as to a case where a demurrer would lie to 
 a particular question. Fairihorne v. Weston^ 3 Hare, 393. So that a 
 defendant, having answered part of a bill, may protect himself from 
 answering another part comprising any number of interrogatories he 
 pleases, on the ground tliiit he might have protected himself from an- 
 swering that otler part by demurrer to the whole bill. Masonw Wake- 
 man, 10 Jur. 628; Drale v. Drake, 2 Ilaie, 647.
 
 S. II. p. III.] ANSWERS. 362 
 
 determined whether the defendant is or is notobU- 
 ged to make the discovery (i) (2). If the defence 
 
 ground upon which that title is al- (t) 2 Ves. Jun. 87 ; and see 1 Ves. 
 leged by the plaintiff to be fouaded ; Jun. 294, note, 
 and see below, p. 377, note (g) (1). 
 
 But accrding to the case of Baddeley v. Curwen, this order does 
 not extend to the case of interrogatories objectionable only on the 
 ground that a demurrer to the whole bill, if filed in time, would have 
 been sustainable: for, if it did, it would throw on the master the obli- 
 gation of deciding whether a bill is or is not open to a general demur- 
 rer — an obligation that seems not to have belonged to his office. 2 
 Coll. 151. 
 
 The 38th order applies even where the only ground of demurrer is that 
 the suit is defective for want of parties. Kaye v. Wall, 4 Hare, 127. 
 
 If specific relief is prayed, in addition to discovery in aid of a de- 
 fence to an action at law, the defendant is not bound to give any dis- 
 covery which is not incidental to the relief sought by the bill, and which 
 can only be used at' law ; because the discovery would be obtained 
 without paying that price for it, namely, the costs of the suit, which, 
 in the case of a pure bill of discovery, the plaintifi" is required to pay. 
 Desborough v. Curlewis, 3 Y. & C Eq. Ex. 175 ; Jones v. Maund, 3 
 Y. & C. Eq. Ex. 367. 
 
 One set of defendants are not bound to answer questions upon the 
 casps of other defendants, Tornlinson v. Swinnerton, 2 Jiir. 393, 
 V. C. E. 
 
 A partner resident in England of a foreign firm is not bound to set 
 forth a schedule of books, die., relating to the business of euch firm, 
 and in theircustody ; because their production could not be enforced. 
 Martineau v. Cox, 2 Y. & C. 638. 
 
 Where one of the assignees of a bankrupt, states by ^ay of answer 
 to a bill, that he only acted as assignee in some trifling particulars not 
 connected with the matters in the bill mentipned, and that he is wholly 
 ignorant of the matters set forth in the bill, and cannot make any other 
 answer thereto as to his knowledge, belief, or otherwise, this answer 
 is sufficient. Jones v. Wiggins, 2.Y. & J. 385. 
 
 (1) [Also Desplaces v. Goris, 1 Edwards' V. C. Rep. 350 ; Whitney 
 V. Belden, ib. 386 ; and see all the cases on this "Subject well digested 
 fn note (1) to Sweet v. Young, in 1 vol. Blum's edition of Ambler.] 
 
 (2) [By the 38th Rule of the N. Y. Chancery, exceptions to answer 
 in an injunction cause must be filed within ten days after the defen- 
 dant has answered: otlierwise, it will not st;iy a motion to dissolve 
 the injunction. But this rule, it has been decided by Chuncellor Wal-
 
 362 ANSWERS. [Chap. II. 
 
 Sybeb^yTn^ wliich Can be made to a bill consists of a variety 
 of circumstances, so that it is not proper to be 
 
 363 offered by way of plea (k) ; or if it is doubtful 
 whether as a plea it will hold ; the defendant may 
 set forth the whole by way of answer, and pray the 
 
 364 same benefit of so much as goes in bar, as if it had 
 been pleaded to the bill (Z). Or if the defendant 
 can offer a matter of plea which would be a com- 
 plete bar, but has no occasion to protect himself 
 from any discovery sought by the bill, end can offer 
 circumstances which he conceives to be favourable 
 to his case, and which he could not offer together 
 with a plea, he may set forth the whole matter in 
 
 [309] the same manner. Thus, if a purchaser for a va- 
 luable consideration, clear of all charges of fraud 
 or notice, can offer additional circumstances in his 
 favour, which he cannot set forth by way of plea, 
 865 or of answer to support a plea, as the expending a 
 
 considerable sum of money in improvements, with 
 the knowledge of the plaintiff, it maybe more pru- 
 dent to set out the whole by way of answer than to 
 rely on the single defence by way of plea, unless it 
 is material to prevent disclosure of any circum- 
 stance attending his title. For, a defence ^Yhich, 
 if insisted on by a plea, would protect the defend- 
 ant from a discovery, will not in general do so if 
 
 {k) Chapman v. Turner, 1 Atk. (/) See Norton v. Turvill, 2 P. 
 54. Wms. 144. 
 
 worth, does not apply where a complainant has waived the oath to the 
 answer. Livingston v. Livingston, 4 Paige's Ch. R. Ill ; and see Rule 
 40. Besides these rules, there are many of the same court relating to 
 exceptions. As to filing and submitting, Rule 50 : referenof R. 51, 52, 
 63, 125, 126; master's report, R. 55, 56, 57, 60, 62; scandal and im- 
 pertinence, R. 53, 57, 106 ; further time to answer, R. 55, 58, 59 ; ex- 
 ceptions to report, R. 62; costs, R. 58, 69, 60, 63.]
 
 S.II. p. III.] ANSWERS. 365 
 
 offered by way of answer (Z). To so much of the Mode of answer 
 bill as it is necessary and material for the defend- 
 ant to answer (m) he must speak directly (1), and 
 
 (l) 2 Eq. Ca. Ab. 67 ; Richardson much only of the bill aa applies to 
 V. Mitchell, Sel. Ca. in Cha. 51 ; him. (1) Coop. R. 215. And fur- 
 above, p. 360, note (A.) ther, with respect to materiality of 
 
 (m) It seems, a mere trustee, in- answer see below, 377, note (q.) 
 cuftibrancer, or heir, need answer so 
 
 (1) There is no rule that a man must either admit or deny his own 
 
 . « 1 • r- I 11- Averment of ig- 
 
 recent facts, bo that if he states that he is unable to set forth as to norance as to the 
 
 his knowledge, remembrance, information, and belief, respecting the recent facta.°'^ 
 
 contents or purport of an agreement entered into by him about six 
 
 years before tlie filing of the bill, and destroyed by him some months 
 
 before that time, his answer will not be deemed insufficient. Nelson 
 
 V. Ponsford, 4 Beav. 41, 
 
 If a defendant says he is an utter stranger to a matter, and cannot Answering aa to 
 , 1 1- r -1 1 . ^ information, 
 
 form any belief concerning the same, he answers, in effect, as to his 
 
 information as well as belief, Amhurst v, Khig, 2 S. & S. 183. 
 
 In the absence of a particular exemption, if a defendant can give Obligation of a 
 the discovery, he must give it ; and if he cannot, he must show that procure"\he 
 he has done his best to procure the means of giving it. Taylor v, ??ean3 of givinjr 
 Rundell, Cr. &. Phil. 104. See also Sluart v. Lord Bute, 11 Sim, 
 442, 
 
 Hence he is bound to inspect, and answer as to the contents of, all 
 documents that are in his power; and all documents which a defend- 
 ant has a right to inspect, provided he can enforce that right, are 
 deemed to be in his "power;" and if they are wrongfully withheld 
 from his inspection, he is bound to resort to legal proceedings to en- 
 force his right to inspect them ; and the court will allow him time for 
 that purpose, Taylor v. Rundell, 1 Phil. 222, See also Attorney 
 Gen. v. Bailiff's, ^c. of East Bedford, 2 M, &. K.-35. 
 
 And if a bitt states a fact not denied by the answer, by which it 
 appears that the defendant has the means of making an inquiry as to 
 a point upon which he is inten-ogated, he muot set forth as to his 
 knowledge, information, remembrance, or belief, with regard to that 
 point. Neate V. Duke nf Marlborough, 2 Y, & C. Eq. Ex. 3, So 
 that if a defendant, who acted in a transaction by his solicitor simply, 
 is interrogated as to communications between such solicitor and tlie 
 plaintiff and as to entries made by such solicitor, it is not sufficient 
 for him to say he does not know, and is unable to answer as to his 
 information, beliof, or otherwise he must say that he has endeavored 
 to obtain the information from such solicitor, even though the latter 
 
 30 
 
 discovery.
 
 366 ANSWERS. [Chap. II. 
 
 without evasion, and must not merely answer the 
 
 has long ■ceased to be his solicitor. For the acts of the agent bind the 
 principal ; and although the plaintiff might himself make inquiries of 
 the solicitor, and might call him as a witness, yet he is entitled to such 
 an admission of facts from the defendant, to relieve himself from the 
 necessity of adducing proof from other sources. Earl of Glengall v. 
 Fraser, 2 Hare, 99. If a bill charge notice of particular fact, the answer 
 must be to it without special interrogatory. But defendant need not 
 answer interrogatories not warranted by some matter contained in a 
 former part of the bill. The Mechanics^ Bank of Alexandria v. Lynn, 1 
 Peters, 383, where a bill requires answer to pertinent interrogatories, 
 according to knowledge, information, and belief, defendant must respond 
 not merely to his knowledge, but information if any derived from others 
 and his belief which all of his knowledge and information have produced. 
 Kittredge v. Claremoni Banket al., 7 Woodbury and Minot's Rep. 1st 
 C. U. S. 246, 247, 244. 
 
 If the interrogatory, pertinent to the charge in the bill, require de- 
 fondant to answer to his belief, as well as to his knowledge, remem- 
 brance, and information, and he do not, it is not sufficient that he an- 
 swer to his knowledge, but must to his information and belief, if not it 
 is exceptionable ; for the general rule is that what the defendant be- 
 lieves the court will believe. The plaintiff contended that where the 
 answer is on information, he was entitled to know the precise degree of 
 credit defendant gives to such information. Defendant is bound to an- 
 swer conscientiously as to the state of his mind, whether he believes 
 the fact or believes it highly or merely probable, or has no belief what- 
 ever as to it. The exception shows that the charges, the interroga- 
 ting applicable thereto, to which the answer is responsive, the terms 
 of the answer, verbatim, so as the court, without scrutinizing the bill 
 and answer, may judge if it be or not insufficient. 
 
 In the case the answer was " no knowledge, information and belief, 
 that it was not true," but defendant did not as he should state whether 
 lie believed it to be true. When defendant does not deny, but states his 
 belief, he admits it true; or that he does not mean to controvert it^ But 
 stating h&has no knowledge that the fact is as stated, without any an- 
 swer as to his belief concerning it, is not such an admission as is evi- 
 dence of the fact. Defendant should answer in direct and unequivocal 
 terms as to the state of his mind, as to every fact stated in the bill to 
 which he is interrogated, either that he does believe the matter inquired 
 of, or cannot form any belief, or has none concerning it;. and according 
 as the answer may be, he must state that he calls on complainant for 
 proof, or that he admits the particular fact, or that he wants all contro-
 
 S. II. p. III.] ANSWERS. 366 
 
 several charges literally, but he must confess or tra- 
 
 versy concerning it. Brooks v. Byam et al, 1 Story R. 299, 300, 304, 
 296. 
 
 So in Tradesman's Bank v. Hyatt, 2 Edwards' V. C. R. 195, it was 
 held, that the defendant must answer to the best of his knowledge, re- 
 membrance, information and belief. " That he has no knowledge or in- 
 formation whatever excepting what is derived from the bill," or " that he 
 is utterly and entirely ignorant excepting from the information of the 
 bill," would be sufficient ; but that he has no knowledge vvhatever ex- 
 cepting what is derived from the allegations in the bill, is not a suffi- 
 cient answer. 
 
 In Norton v. Wood, 5 Paige's R. 261, 262, 260, on exceptions to 
 master's report on exceptions to answer, the court decided that, if a 
 fact is derived from information of another, and believed, it may be 
 stated in that form. As where a defendant says he sent his clerk for 
 payment, who returned and informed him the complainant promised to 
 pay in a short time, which information, the defendant believes to be 
 true. Tiiis was an averment of a promise to pay or may be charged 
 in this form, as defendant could not swear to it as a fact in his own 
 knowledge. 
 
 Where defendant expressly denies that to his recollection and be- 
 lief he did then and there, or ever make or enter into any agreement 
 with, &c., that the premises should be redeemable, «&c., as stated 
 in the bill : Held, that those matters being therein directly and 
 expressly charged on defendant, and so recent, it is not sufficient 
 for him to deny the facts according to his recollection or be- 
 lief. To such allegations under such circumstances, he was bound to 
 make a positive and direct denial. His denial, according to his recol- 
 lection or belief, must, under the circumstances, be treated in a court 
 of equity as a mere evasion. So, where he adopts like modes of de- 
 nial to other facts which rest on his own knowledge, or whether he re- 
 ceived notice or not, appear a matter of inadvertence or mistake, but 
 in the whole structure of the answer there is a studied choice of phra- 
 seology to escape from any direct answer to. the allegations, the court 
 will regard it as insufficient. Taylor et ux. v. Luther, 2 Sumner's 
 C. C. Rep. 231, 228. 
 
 The rule usually laid down is, that the defendant is bound to an- 
 swer every part of the substance of the statement and charges in the 
 bill, and that every particular interrogatory, founded upon an express 
 allegation in the body of the bill, must be answered precisely, in all its 
 bearings and circumstances. The case of Smith v. Clark, 4 Paige, 
 is full to the point that the charging part of the bill is not to be treat- 
 ed as mere surplusage, but that it must be answered. If the answer 
 Bets up ajirmatiie matter by way of avoidance, and ia not reponsive
 
 < 
 
 366 ANSWERS. [Chap. II. 
 
 verse the substance of each charge (n) (1). And 
 
 (n) Ord. in Ch. 28, 179, Ed. Bea. ; Anstr. 64 ; 2 Ves. &, B. 1C2 ; aud see 
 Hind V. Dods, Barnard, 258 ; S. C. Hall v. Bodily, 1 Vern. 470. 
 2 Eq. Ca. Ab. 69 ; Deane v- Rastron, 
 
 to the bill, upon a traverse of the answer, all the authorities agree that 
 the answer is not proof of such matters. But if, however, the affirma- 
 iiie matter in the answer is responsive to the bill, it cannot be dis- 
 guised that there is considerable discrepancy in the authorities, whe- 
 ther upon a traverse, the answer should be received as proof or as mere 
 pleadintr, to be sustained by ordinary proof like a special plea. Allen, 
 adm. v. Mower, 17 Vermont Rep. 67. 
 
 Where the matters charged in the bill are alleged to have occurred 
 with divers circumstances, it is not sufficient for the defendant to an- 
 swer such matters, literally denying the same upon his information or 
 knowledge with the attendant circumstances ; but he must admit or 
 answer the substance of each charge. King v. Ray, II Paige Ch. 
 Rep. 235. 
 Eraelve answer. (0 When a defendant answers conjunctiiely, that he is unable to an- 
 swer several tilings, his answer is evasive, unless he adds that he can- 
 not answer any of them ; as when he says that he cannot set forth when 
 he parted with papers and wliat has become of them. Tipping v. 
 Clark, 2 Hare, 390. 
 
 And where an information prays an account, and payment of arrears 
 of rent out of land, and that for that purpose the lands may be ascer- 
 tained and distinguished, and it charges that the defendant has in his 
 possession deeds relating to the land and to the rent, whereby the truth 
 of the allegations in the information would appear, and the answer 
 denies the defendant's possession of any deeds relating to the land and 
 the rent, or whereby the truth of the matters mentioned in the infor- 
 mation would appear, the answer is insufficient: for the defendant is 
 bound to state whether or not he has any deeds relating even to the 
 land alone, for the purpose of enabling the plaintiff to identify the land, 
 which is one link in the plaintiff's title. Attorney General v. Lord 
 Dinorben, 2 Jur. 129, Ex. Eq. See further, [ Woods v. Morrell, 1 J. C. R. 
 103; 3Iorris v. Parker, 3 lb. 297; Smith v. Lasher, 5 l\). 247; Pettit 
 V. Candler, on appeal, 3 Wendell's R. 618. If a defendant submit to 
 answer at all, he must answer fully and particularly; not merely limit- 
 ing his responses to the interrogations of the bill. Hogthorp v. Hook, 
 1 Gill & Johns. 270; Methodist Episcopal Church v. Jacques, 1 J. C. R. 
 65; and see Phillips v. Provoosl, 4 J. C. R. 205 ; Frost v. Beekman, 1 lb. 
 288; Cuyler v. Bogert, 3 Paige's C. R. 186; Utica Insurance Co. v. 
 Lynch, ib. 2 10; Warsjiel.i v. Gambril, 1 Gill &, Johns. 503. The com- 
 plainant is entitled to answer to every fact charged in the bill, the admis-
 
 S. II. r. III.] ANSWERS. 366 
 
 wherever there are particular precise charges (o), 
 they must be answered particularly and precisely, 367 
 
 and not in a general manner, though the general 
 answer may amount to a full denial of the charges 
 
 (o) These, however, it seems, to King v, Marissal, 3 Atk. 192, Du^ 
 the end mentioned in the text, must rant v. Durant, 1 Cox R. 58. 
 be specially interrogated to (1). See 
 
 eion or proof of which is material to the relief sought, or necessary to 
 substantiate his proceeding and make ti.em re^^ular. As a general 
 rule, if the charge in the bill embraces several particulars, the answer 
 should be in the disjunctive, denying each particular or admitting some 
 and denying the others, according to the fact. Davis v. Mapes, 2 
 Paige's C. R. 105; Ulica Ins. Co. v. Lynch, supra; King v. Ray, 11 
 Paige's C. R. 235. 
 
 A defendant must give a full, frank and explicit disclosure of all 
 matters material or necessary to be answered, whether resting within 
 his own knowlege or upon his information and belief. Baggot v. Henry, 
 
 1 Edwards' V. C. R. 7. 
 
 Where suspicious circumstances, gross fraud and collusion are 
 charged in a bill, a defendant will be held to a strict rule in answering. 
 Not only his motives, but his secret designs, his " unuttered thoughts" 
 must be exposed. Mechanics' Bank v. Levy, ib. 316. 
 
 It is improper to incorporate in an answer to an amended bill, the 
 whole matter of the former answer. Bennington Iron Co. v. Campbell, 
 
 2 Paige's C. R. 160. No particular form of words is necessary in an 
 answer. It is sufficient if it be not evasive, and if the substance is 
 preserved. Uticd Ins, Co. v. Lynch, .supra. 
 
 The true tests as to whether questions in a bill are to be answered 
 or not, are: 1st, Whether the answers might lead to the crimination of. 
 the defendant; and, 2dly, Whether they are relevant and may be mate- 
 rial to the case of the complainant. Mant v. Scott, 3 Price, 477.] 
 
 What the complainant is bound to state in his bill, must be admitted 
 or denied by the answer. Thus when a bill for partition, not on'y the 
 rights of the parties but the rights of the defendants as between them- 
 selves, are stated as required by the 174th Rule of New- York, and by 
 the Revised Statutes, which require that the rights of all parties be 
 set forth as far as they are known. A defendant in his answer must 
 answer as to such rights either by a general admission tliat the rights 
 of the several parties are as stated or in some other manner. Van 
 Cortland v. Beekman et ah, 6 Paige's R. 496-6, 492. 
 
 (1) See note to p. 92, supra.
 
 867 ANSWERS. [Chap. II. 
 
 [310] {p) (1). Thus where a bill required a general ac- 
 
 (p) 2 Eq. Ca. Ab. 67 ; Paxton's 792 ; Wharton v. Wharton, 1 Sim. 
 case, Sel. Ca. in Ch. 53 ; Prout v. & Stu. 235 ; aud see Amhurst v. 
 Underwood, 2 Cox, R. 135 • 6 Ves. King, 2 Sim & Stu. 183. . 
 
 (1) [Wood&r. Morrell, 1 J. C. R. 103, A defendant is not bound 
 to answer interrogatories asking a disclosure of matter no way con- 
 nected with or material to the case. Hagihorp v. Hook, 1 Gill & Johns. 
 270; and see Mechanics^ Bank v. Levy, 3 Paige's C. R. 656. J 
 
 The charge or fact must be stated in the bill on which the interroga- 
 tory is founded, for if it be irrelevant to the matters charged, the de- 
 fendant need not answer the interrogatories. Brooks v. Byam et al.t 
 360-1. 1 Story's C. C. R. 296. The defendant must answer the charg- 
 ing as well as stating part, and his answer will be equally evidence in 
 his favor if oath is not waived. Smith v. Clark and Smith, 4 Paige's 
 R. 373, 368. 
 
 Where answer on oath is waived it is not evidence for defendant; 
 but as a pleading complainant may avail of admissions and allegations 
 therein, which establish the case made by his bill. The answer is not 
 to be taken together as evidence even where it is on oath. Complain- 
 ant may avail admissions in one part without being also bound by the 
 statements and allegations in the other parts of same answer. Bart- 
 ,' lett v. Gale el al, 4 Paige's R. 607, 503. 
 
 Where defendant in his answer " expressly charges " certain f^cts 
 to be, &c., on which he intends to rely for defence, and swears to the 
 answer, he swears to the truth of the facts, not to the fact of the charge, 
 and if the facts stated or charged are material and not true, perjury 
 may be assigned upon it. Quackenbush v. Van Riper, Saxton's Ch. 
 R. 485-6, 476. 
 
 Answer of one defendant is not evidence against a co-defendant, for 
 the plaintiff may so frame his bill and interpogatories as to elicit evi- 
 dence from one defendant to charge another, and to exclude such mat- 
 ters as might discharge him. To admit the answer of the one to be 
 evidence against the other under euch circumstances, and when cross- 
 interrogatories could not be admitted, would give to the plaintiff an 
 undue advantage against the manifest principles of impartial justice. 
 But where the answer is unfavorable to the plaintiff and consequently 
 operates favorably for a co-defendant, this reason is not applicable. 
 Where plaintiffs call on defendant for discovery, requiring leave to 
 answer under oath fully to all the matters charged in the bill, they can- 
 not be allowed to say that his answer is not testimony. The answer of 
 a defendant responsive to the bill is evidence for co-defendant, more 
 especially when such co-defendant being a depository of papers, and 
 became such at request of both parties, has no interest in the question
 
 S. II. p. III.] ANSWERS. , 368 
 
 count, and at the same time called upon the de- 
 fendant to set forth whether he had received par- 
 ticular sums of money specified in the bill, with 
 many circumstances respecting the times when, 
 and of whom, and on what accounts such sums 
 had been received, it was determined, that setting 
 forth a general account by way of schedule to the 
 answer, and referring to it as containing a full ac- 
 count of all sums of money received by the defend- 
 ant, was not sufficient, and the plaintiff having ex- 
 cepted to the answer on this ground, the exception 
 was allowed ; the court being of opinion that the 
 
 and defends himself under the title of the other defendant. Mills v. 
 Gore el al, 20 Pick. R. (Mass.) 34-35, 28. 
 
 It is evidence against his co-defendant where latter claims through him, 
 or wherever the confession of a party would be good evidence against 
 another, the answer in such case, a fortiori, may be read against the 
 latter. It is evidence against plaintifT, even if it be doubtful whether 
 a decree can be made against defendant. The plaintiffs cannot avail 
 themselves of the answer of a defendant who is substantially a plain- 
 tiff. It is not evidence against a co-defendant. Field et al. v. Holland 
 et al, 6 Cranch's R. 8-29, 2 Condens. R. 285. 
 
 W^lth regard to the sufficiency of an answer. Sir J. Wigram, V. C, SufBcienojof 
 observed, in Tipping v. Clarke: "If the defendant will simply answer 
 in the terms of the bill, he avoids all difficulty on the subject. But if, 
 instead of doing so, he gives an answer which is not precise with re- 
 ference to all the matters on which he is interrogated, and then endea- 
 vors to shelter liimself under a general denial, coupled with the words 
 ' except as aforesaid,' or similar expressions, he makes it often diffi- 
 cult to decide whether the answer is sufficient or not. The rule, since 
 I have known the practice of the court, has been, that wherever the 
 defendant denies the bill to be true, ' except as aforesaid,' or ' except aa 
 appears by the otlier parts of the answer,' if there be not found on the 
 answer a clear and sufficient statement wiiich to a reasonable extent 
 meets the whole case, the answer is deemed to be evasive." 2 Hare, 
 383. 
 
 The court never requires a plaintiff to be satisfied with a mere 
 general denial in answer to a specific charge. Tipping v. Clarke, 2 
 Hare, 389. 
 
 answer.
 
 368 ANSWERS. [Chap. II. 
 
 defendant was bound to answer specifically to the 
 specific charges in the bill, and that it was not suf- 
 ficient for him to say generally, that he had in the 
 schedule set forth an account of all sums received 
 by him {q) (1). 
 
 369 Although the defendant by his answer denies the 
 
 Necessity of dis- •■ -t n t ^ • • rr» • i i 
 
 covery, where titlc 01 thc plamtiiT, yct m many cases he must make 
 
 the defendant r ' ^ J 
 
 tiff''8^^\'itie.'"or ^ discovery prayed by the bill, though not material 
 rtf matedamy to tho plaintiff^'s titlc, and though the plaintiff, if 
 ry dependL °'^'" he has no title, can have no benefit from the disco- 
 
 iq) Hepburn v. Durand, 20th Bro. C. C. 503 ; but see White t. 
 Nov, 1779, in Cha. ; S. C. rep. 1 Williains,8Yos. 193. (1) 
 
 Setting forth a (1) A defendant is not bound to set forth a settled account, if the 
 bill charges that if there was any settled account, the same was fraudu- 
 lent and collusive, and merely prays a discovery in respect of such 
 pretended settled account. Davies v. Davies, 1 Keen, 534. 
 Answer setting A defendant is not bound to set forth accounts where they are of 
 count8^°and^nu- ^^''y great length : it is sufficient in such a case to refer to the books 
 merous docu- jjj which they are to be found. Nor is it necessary to specify all the 
 documents relating to the subject, where that would occupy a schedule 
 of an oppressive length: it is sufBcient to specify the most important; 
 and then to say that there are others contained in boxes or bundles, 
 marked A, B, &c. Christian v. Taylor, 11 Sim. 401. 
 Answer setting Where a banker is required to set forth the particulars of the con- 
 account!"*''^"^ sideration given by him for a bill of exchange, and he answers that 
 the consideration consisted of cash, bills, and notes, drawn out of his 
 banking house from time to time, in the regular course of dealing be- 
 tween a banker and his customers, this is a sufficient answer, without 
 setting out the banking account. Webster v. Threlfall, 2 S. & S. 190. 
 Setting out ac- A defendant may set out accounts at length, and copies' of promis- 
 pies of promis- sory notes, undertakings, acknowledgments, and cheques, where ^the 
 cheques'&c interrogatories in the bill appear, in effect, though not literally, to re- 
 quire it, and where it appears necessary to refer to them, in order 
 duly to qualify the defendant's statements as to his knowledge of the 
 cash transactions to which the interrogatories relate. Davis v. Cripps, 
 2 Y. «& C. Ch. 435. 
 Setting forth in- Where it is necessary for the sake of perspicuity, a defendant may 
 
 formation in r i i ■ <- • • i • ■ i i i i ^ 
 
 eolumuB. set forth the information required in a schedule with columns. Gom- 
 
 pertz V. Best, 1 Y. & C. Eq. Ex. 114.
 
 S. II. p. III.] ANSWERS. 369 
 
 very. As if a bill is filed for tithes, praying a dis- 
 covery of the quantity of land in the defendant's 
 possession, and of the value of the tithes, though 
 the defendant insists upon a modus, or upon an ex- 
 emption from payment of tithes, or absolutely 
 denies the plaintiff's title (r), he must yet answer to [^H] 
 the quantity of land and value of the tithes (s). 
 Or if a bill is filed against an executor by a creditor 
 of the testator, the executor must admit assets, or 
 set forth an account, though he denies the debt (t) (1) . 
 
 But where the defendant sets up a title in him- 370 
 
 self, apparently good, and which the plaintiff must 
 remove to found his own title, the defendant is not . 
 generally compelled to make any discovery not ma- 
 terial to the trial of the question of title. Thus, 
 where a testator devised his real estate to his ne- 
 phew for life, with remainder to his first and other 
 sons in tail, with reversion to his right heirs, and 
 made his nephew executor and residuary legatee 
 of his will, and on the death of the nephew his son 
 entered as tenant in tail under the will ; upon a bill 
 filed by the heir at law of the testator, insisting that 
 the son was illegitimate, tliat the limitations in the 
 will were therefore spent, and that the plaintiff be- 
 came entitled as heir to the real estate, and praying 
 
 (r) See,however, Gilb. Ca. in Cha. (t) Randal v. /fead, Hardr, 188. 
 
 229. See Sweet v. Young, Ambl. 353 ; 
 
 (s) Langham v. — ■, Hardr. 11 Ves. 304. 
 
 130. 
 
 ,(1) If a* bill is filed by persons claiming to be next of kin, against Nccegsity for 
 the administrator, praying the usual accounts, he must set tliem forth', ^"'[h"ugh*pilun. 
 althoutrh by his answer he denies that the plaintiffs are next of kin, tt^'a title be de- 
 and he himself claims to be one of the next of kin. Dott v. Hayes, 10 
 Jur. 628.
 
 870 ANSWERS. [Chap. II. 
 
 an account of the personal estate, and application 
 thereof in discharge of debts and incumbrances on 
 the real estate, the defendants against whom the 
 account was sought insisted on the title of the son 
 as tenant in tail under the will, and that they were 
 not bound to discover the personal estate until the 
 [312] plaintiff had established his title. Exceptions 
 having been taken to the answer, and allowed by 
 the master, on exception to his report, the exceptions' 
 to the answer were overruled ; the court distin- 
 guishing this case, which showed a prima facie 
 title in the defendant, the son of the nephew, from 
 a mere denial of the plaintiff's title (u). 
 
 871 So when a bill claimed the tithe of rabbits on an 
 alleged custom, and the defendant denied the cus- 
 tom, it was determined that the defendant was not 
 bound to set forth an account of the rabbits alleged 
 to be tithable (x) ; and a like determination was 
 made upon a claim of wharfage, against common 
 right, the title not having been established at law (t/). 
 
 But where a discovery is in any degree con- 
 nected with the title, it should seem that a defen- 
 dant cannot protect himself by answer from making 
 the discovery ; and in the case of an account re- 
 quired, wholly independent of the title, the court 
 has declined laying down any general rule (z), de- 
 ciding ordinarily upon the circumstances of the 
 particular case. Thus, to a bill stating a partner- 
 
 (m) Gethin v. GaZe, 29th Oct. (x) Randal v. Head, Hardr. 188; 
 
 1739, in Chan. M. R. ; Ainbl. 354, -S. C. Eq. Ca. Ab. 35. 
 
 cited in Sioeet v. Young. See also (y) Northleigk v. Luscombe, 
 
 Gunn V. Prior, cited 11 Ves. Jan. Ambl. 612. 
 
 291; S. C. Dick. 657; 1 Cox R. («) Hall v. Noyes, Ld. Chan. 
 
 197. 13th March, 1792.
 
 S. II. p. III.] ANSWERS. 871 
 
 ship, and seeking an account of transactions of the 
 alleged partnership, the defendant by his answer 
 denied the partnership, and dochned setting forth 
 the account required, insisting that the plaintiff 
 was only his servant ; and the court, conceiving 
 the account sought not to be material to the title, [313] 
 overruled exceptions to the answer, for not setting 
 forth the account {a). And where a plea has been 
 ordered to stand for an answer, with liberty to ex- 
 cept to it as an insufficient answer, the court has 
 sometimes limited the power of excepting, so as to 372 
 
 protect the defendant from setting forth accounts 
 not material to the plaintiff's title, where that title 
 has been very doubtful (Jb). 
 
 If an answer goes out of the bill to state some pentafn^^ ^' 
 matter not material to the defendant's case, it will 
 be deemed impertinent (2), and the matter upon 
 
 (a) Jacobs v. Goodman, in Exch. Threlfall, 2 Sim. & Stu- 190 ; but 
 
 16th Nov. 1791 ; S. C. rep. 3 Bro. C. see v. Harrison, 4 Madd. 
 
 C. 487, note ; and 2 Cox R. 282. 252. (1) 
 
 See f/aH V. iVoyes, 3 Bro. C. C. 483 ; (6) Earl of Strafford v. Blake- 
 Marquis of Donegal v. Steivart, 3 way, G Bro. P. C. 630, Toml. Ed 5 
 Ves. 446 ; Phelips v. Caney, 4 Ves. King v. Holcombe, 4 Bro. C. C. 439; 
 107; 11 Ves. 42, 293 ; Webster y. Bayley v. Adarns, 6 Yes. 586. 
 
 (1) [The principle, that a defendant who denies some siihstantial 
 leading fact, wliich, if admitted, would entitle tlie complainant to r^Jief, 
 and who cannot be compelled to answer further until the trutii of the 
 fact is disposed of, applies only to a case of an account of partner-^hip 
 transactions. And even there, a general denial of the partnership will 
 not avail, if the bill charges that it would appear by a discovery from 
 the defendant. Desplacesv. Goris, 1 Edwards' V. C. R. 350; and see 
 notes at pp. 308, 309, arile.] 
 
 (2) Any matter in an answer is impertinent, except that which is . 
 
 ^ ■' J r ' r Impertinence, 
 
 called for by the bill, or would be material to the defence with refer- 
 ence to the order or decree which may be grounded on the bill to which 
 answer is made. 
 
 Hence, if an answer to a mere bill of revivor contains long state-
 
 878 ANSWERS. [Chap. II. 
 
 application to the court, will be expunged (c). So 
 
 (c) Alsager v. Johnson, 4 Ves. 217 ; Norway v. Howe, 1 Meriv. 
 
 merits introduced for the purpose of showing that the proceedings of 
 the plaintiff have been irregular and oppressive, such statements are 
 impertinent; because the defendant can have no advantage from them 
 with reference to the order to revive, and his proper way of objecting 
 to irregularity and oppression is by way of motion or petition. Wag- 
 staff \. Bryan, 1 Russ. & My. 28. 
 
 And the answer to a bill of revivor, filed after a decree, must not go 
 into the merits of the original cause, whether the matter he introduces 
 existed at the time of the decree, or has arisen since. Such matter, 
 if stated, is impertinent. Devaynesv. Morris, 1 My. & C, 213. 
 • • But a defendant to a bill, filed to revive a suit on the occasion of an 
 
 abatement caused by the death or marriage of a plaintiff, may, without 
 impertinence, state that he, the defendant, has become bankrupt, and 
 object that the plaintiff is not entitled to the same decree as if the de- 
 fendant had not become bankrupt, although such statements do not 
 tend to show that the plaintiff is not entitled to revive the suit. Lang- 
 ley \. Fisher, 10 Sim. 345. 
 liere unneces- As a general rule, words are not impertinent because unnecessary 
 parages.' *" where they are not irrelevant. Marshall v. Mellerish, 6 Beav. 558. 
 And where a defendant is called upon to set forth a schedule of deeds 
 in the ordinary form, and without any limitation being required or sug- 
 gested by the plaintiffs, it is not impertinent to set forth the names of 
 the parties, in addition to the date of the deed and the estate or sub- 
 ject to which it relates. Tench v. Cheese, 1 Beav. 571. 
 
 But when a defendant refers to a book in the plaintiff's possession, 
 as containing the information required of him, and thereby makes that 
 book a part of his answer, if he afterwards gives that information, it is 
 impertinence. Marshall v. Mellerish, 6 Beav. 658. 
 Prolixity. And if a bill is filed for an account of real estates, and a schedule 
 to the answer sets forth tie particulars of such estates with undue 
 prolixity, after the manner of the description of the parcels in a deed, 
 it is impertinent. And although there are a few passages intermixed, 
 which are not unduly prolix, yet notwithstanding the eleventh order 
 of 1828, a general exception for impertinence will be allowed, if a 
 very great number of exceptions would be required in order to specify 
 the objectionable passages. Byde v. Masterman, Ci. &, Phil. 265. 
 Exceptions for Each exception for impertinerice must be supported in Mo, or must 
 fail altogether; so that if any part of the matter complained of as im- 
 pertinent is not so, the whole exception fails, though some part of the 
 matter complained of is impertinent. Tench v. Cheese, 1 Beav. 571. 
 
 On this subject, see also note, p. 57, supra.
 
 S. II. p. III.] ANSWERS. 373 
 
 in an answer, as in a bill, if any thing scandalous is 
 
 347; French v. JacAro, ibid. 357, Madd. 51 ; Parier v. FaiV/cc, 1 Sim. 
 note; Beaumont v. Beaumont, 5 & Stu. 295 ; 2 Sim. & Stu. 193 (1). 
 
 If an exception for impertinence embraces matters of the answer 
 which are responsive to allegations in the complainant's bill as well as 
 matters which are impertinent, the whole exception must be disallowed. 
 Curies v. Mas^en, 11 Paige's Ch. Rep. 13. When an exception to 
 an answer for impertinence embraces matters which are proper and 
 material to the defendant's defence, the exception will be overruled. 
 An exception for impertinence cannot be allowed in part only. Bal- 
 com V New- York Life Insurance Company, 11 Paige's Ch. R. 454. 
 
 (1) Wagslaffv. Bryant, 1 Russ. &l M. 28. Impertinence in plead- 
 ing consists in setting forth what is not necessary to be set forth : as 
 stuffing the pleadings with useless recitals and long digressions about 
 immaterial matters. Hood v. Inman, 4 J. C. R. 437. It was said by 
 Chancellor Kent, in Woods v. Morrell, 1 J. C. R. 103, that perhaps the 
 best rule to ascertain whether matter be impertinent, is to see whether 
 the subject of the allegation could be put in issue or be given in evi- 
 dence between the parties. But this definition is, perhaps, hardly bread 
 enough — for there are by-matters affecting the costs, &c., which might 
 not be legitimately put in issue, or be made proof of as to the direct 
 matter in controversy. 
 
 Chancellor Walworth has more clearly and fully defined what may be 
 impertinent by showing what is not so. " If the matter of an answer 
 is relevant, that is if it can have any influence whatever in the deci- 
 sion of the suit either as to the suhject-maHer of the controversy, the par- 
 ticular relief lo be given, or as to the costs, it is not impertinent." Van 
 Rensselaer v. Brice, 4 Paine's C. R. 174. 
 
 Long recitals, stories, conversations and insinuations tending to 
 scandal are impertinent. Woods v. Morrell, supra. Counsel are to 
 take care that a pleading " be not stuffed with repetition of deeds, wri- 
 tings or records, in hccc verba, but the effect and substance of so much 
 of them only as is pertinent and material to be set down ; and that in 
 brief terms, without long and needless traverses of points not traversa- 
 ble, tautologies, multiplication of words or other impertinences occa- 
 sioning needless prolixity." Lord Coventry's order, Beames, 165; 
 Slack v. Evans, 7 Price, 278. And see cases of impertinence given 
 and illustrated, 1 Montague on Pleading, 200. An amended bill is not 
 prolix, if it is a complete record, and contains all the char^ies in the 
 original bill. Fitzpalrick v. Power, 1 Hogan's R. 24. The case of 
 TVz7//s V. Evans, 2 Ball &. Realty, 225, is not to be followed. Ib^ A 
 short sentence is not impertinent, although it contains no fact or mate-
 
 gyj ANSWERS. [Chap. II. 
 
 inserted, the scandal will be expunged by order of 
 
 rial matter, and may be only inserted in an answer from abundant cau- 
 tion. A statement in an answer introduced to siiow the temper with 
 which a bill is filed, and the oppressive course pursued by a complain- 
 ant, is not impertinent : it may have an effect upon the costs. What- 
 ever is called for by the bill or will be material to the defence, with re- 
 ference to tbe order or decree which may be made, is proper to be re- 
 tained in an answer. Desplaces v. Goris, 1 Edward's V. C. R. 350 ; 
 Monroy v. Monroy, ib. 383. Bally v. Williams, 1 M'Cleland & 
 Young, 334. If a bill against executors calls specifically and par- 
 ticularly for accounts in all their various details, a very voluminous 
 schedule, containing a copy from the books of account, specifying 
 each item of debit and credit, will not be impertinent. It seems, it 
 would have been impertinent, if the bill had not thus called for it. 
 Scudder v. Bogart, 1 Edwards' V. C. R. 372. And see the King v. 
 Teak, 7 Price, 278. Copies of receipts taken by the defendants, for 
 moneys paid and charged in account, and making an immense sche- 
 dule to an answer, are impertinent. Scudder v. Bogert, supra. An 
 exception for impertinence must be supported in toto, and if it include 
 any passage which is not impertinent, it must fail altogether. Wag- 
 staff v. Bryan, 1 Russ. & M. 30 j recognised by Chancellor Walworth, 
 in Van Rensselaer v. Brice, 4 Paige's C. R. 174.] 
 
 If the matter of the answer is relevant, that it yet can have any in- 
 fluence in the decision of the suit, either as to the subject matter of the 
 controversy, the particular relief to be given, or as to costs, it is not 
 impertinent. Van Reiisselaer v. Brice, 4 Paige's R. 174. 
 
 If matters in a joint answer furnish no valid defence as to the defen- 
 dants against whom relief is prayed in the bill and can have no influ- 
 ence upon the decision of the court upon the question of costs, or as 
 to the relief, if any, which might be given in the suit, they should be 
 excepted to in the usual form as impertinent ; so that the whole of 
 each clause or allegation may be stricken out of the joint answer of 
 both defendants. Mclntyre v. Trustees of Union College, and E. Nott, 
 6 Paige's R. 242, 243, 239, 240. 
 
 Held, on exception to report of master on exceptions to answer, that 
 where a statement on the answer, as to the situation, relationship and 
 means of living of a person, evidently for the purpose of discrediting him 
 as a witness for complainant, and which was not responsive to the bill 
 or material to. the defence, the matter was deemed irrelevant and imper- 
 tinent. In a suit for relief against judgment at law, the facts on trial 
 should be directly stated in the answer and left to be esfablished by 
 proof in the usual way. The judge's notes or case settled therefrom 
 are not conclusive of the facts on the trial, and ought not to be refer-
 
 S. II. p. III.] ANSWERS. 378 
 
 the court (d). But, as in a bill, nothing relevant 
 will be deemed scandalous (e) (1). 
 
 2. An answer usually begins (2) by a reservation 374 
 
 to the defendant of all advantage which may be fw™ °^^'^ 
 taken by exception to the bill, a form which has C^^fl 
 probably been intended to prevent a conclusion that 
 the defendant, having submitted to answer the bill, 
 admitted every thing which by his answer he did 
 not expressly controvert, and especially such mat- 
 ters as he might have objected to by demurrer or 
 plea. The answers to the several matters con- 
 tained in the bill, together with such additional 
 matter as may be necessary for the defendant to 
 show to the court, either to qualify or add to the 
 case made by the bill, or to state anew case on his 
 own behalf, next follow (3), with a general denial 
 
 (d) Peck V. Peck, Mos. 45 ; Barnes v. Saxby, 3 Swanst. 232, n. 
 Smii?i V. Reynolds, Mos. 69 ; Ord. (e) Moeely, 70 ; 1 Ball & B. 61 ; 
 
 in Cha. 25, Ed. Bea. ; Corbett v. and see Lord St. John v. Lady St. 
 
 Tottenham, 1 Ball & Bea. 61; JoAn. 11 Ves. 526. 
 
 red to and made part of the answer. Repetitions of the same matters 
 in the answer, render repetitions impertinent and exceptionable; Where 
 the same exception embraces matter which is pertinent and matter im- 
 pertinent, as tlie whole cannot be sustained, the exception must be 
 overruled. When part of the answer contains a part not material to 
 defendant's defence, but therein states a fact which might be material 
 if put in proper furm, but is so mixed up with irrelevant and imperti- 
 nent matters which ought not to have been stated that it is impossible 
 to separate it tlierefrom, the whole exception must be allowed. Nor- 
 tonv.Wood and another, 5 Paige's R. 260, 264. 
 
 (1) See note to p. 58, supra. 
 
 (2) If a plaintiff dies before an answer is put in, and the defendant Title of an an- 
 
 intitules his answer, "The answer of to tiie original bill of piltiuiff^s io-'^^ 
 
 since deceased," it will be ordered to be taken oft' the file for irregularity •^*'^<'- 
 
 in the title. Upton v. Lou-ten, 10 Law J. (N. S.) 222, V. C. E. 
 
 (3) An answer must not set up two alternative inconsistent defences. Setting up in- 
 Jesus College, Oxford v. Gibbs, 4 Law J. (N. S.) Ex. 42. fences*
 
 875 ANSWERS. [Chap. II. 
 
 of that combination which is usually charged in a 
 bill (/). It is the universal practice to add by 
 way of conclusion a general traverse or denial of 
 all the matters in the bill. This is said (g) to 
 have obtained when the practice was for the defen- 
 dant merely to set forth his case, without answer- 
 ing every clause in the bill. Though, perhaps, 
 rather impertinent if the bill is otherwise fully an- 
 swered, and it has been determined to be in that 
 
 (/) See above, p. 43 (1). (g) 2 P. Wms. 87. 
 
 Answer of a Where a mere stakeholder, in his answer, submits that the plaintiff 
 a a e o er. j^. ^^^ entitled to the relief prayed, and that the bill ought to be dis- 
 missed with costs, he thereby interferes more than is necessary ; and, 
 therefore, if the plaintiff gets a decree in his favor against the princi- 
 pal defendant, there will be a decree as to the shareholder, with costs. 
 Whereas, if he only submits in his answer that the bill ought to be 
 dismissed as against himself merely, with costs, no costs will l»e given 
 as against him. Osbnldiston v. Simpson, 13 Sim. 513. 
 Answer of new Where new trustees of a charity, appointed after the old trustees 
 cree against the have put in their answer to an information, but before the decree, are 
 old trustees. j^^j, jjj^jg parlies to the cause ; and after the decree, a supplemental 
 information is filed against such new trustees, they are not so bound 
 by the decree as to be precluded from making a case by way of de- 
 fence to the suit, for they come in under the founder, and not under the 
 trustees for whom they were substituted, and they could have made a 
 separate defence, had they been made parties to the suit, as they ought 
 to have been, before the decree. Atl. Gen. v. Foster, 2 Hare, 81. 
 Answer to an ^ "^^ master and usher of a school are not so bound by a decree 
 original infor- against their predecessors, as to be precluded from stating new matters 
 nature of a sup- in auswer to an original information in the nature of a supplemental one, 
 against a new' to show that the decree ought not to be carried into effect against them ; 
 ^^of*a sclfooi^'^' ^'°'' '•'^^y ^° "°* come in by any sort of privity with their predecessors ; and 
 although the decree in the original cause may be right with reference 
 to the things alleged and proved in that cause, yet there may be cir- 
 cumstances showing that it would not be right to prosecute it against 
 the new officers. Att. Gen. v. Foster, 13 Sim. 282. 
 
 (i) [A defendant cannot avail himself of matter of defence which 
 appears only upon his evidence and was not stated in his answer. 
 Stanly v. Robinson, 1 Russ. & M. 627.]
 
 S. II. p. III.] ANSWERS. 375 
 
 case unnecessary (Ji), it is still continued in prac- 
 tice (1). In the case of an infant (2) the answer 
 is expressed to be made by his guardian {g) ; and 376 
 
 the general saving at the beginning, together with 
 the denial of combination, and the traverse at the 
 conclusion, common to all other answers, are omit- 
 ted. For an infant is entitled to the benefit of every 
 exception which can be taken to a bill, without ex- 
 pressly making it; he is considered as incapable [^15] 
 of the combination charged in the bill ; and his 
 answer cannot be excepted to for insufficiency (Ji). 
 The answer of an idiot or lunatic is expressed to 
 be made by his committee as his guardian, or by 
 the person appointed his guardian by the court to 
 defend the suit (i). An answer must be signed 
 by counsel (k), unless taken by commissioners in 
 the country under the authority of a commission 
 issued for the purpose ; in which case the signature 
 
 (Ji) 2 P. Wms. 87. the attorney-general cannot be ex- 
 
 {g) See above, p. 124. cepted to. Davison v. Att. Gen. Ex- 
 
 (h) Copeland v. Wheeler, 4 Bro. chequer, 30 June, 1813. 
 
 C. C. 256 ; Lucas v. Lucas, 13 Ves. (i) See above, p. 124. 
 
 274 ; 1 Ball & B. 553. It has been {k) 2 Ves. & B. 358. 
 
 determined also, that the answer of 
 
 (1) The general traverse is constantly omitted by some draftsmen 
 of the present day. [The general denial of all the matters of the bill 
 not before answered, with which an answer usually concludes, is suffi- 
 cient as a pleading to put the several matters of the bill in issue. 
 Chancellor Walworth, in Stafford v. Broton, 4 Paige's G. R. 88 ; and 
 see Storms v. Storms, 1 Edwards' V. C. R. 358. 
 
 (2) In order to enable an infant defendant to enter into evidence in infant's answer, 
 support of facts, he should state them in his answer, instead of putting 
 
 in the common answer of an infant, if those facts would not otherwise 
 be in issue in the cause. But whatever admissions he may make, or 
 whatever points may be tendered in issue in his answer, tiie plaintiff is 
 not in any degree exonerated from proving, as against the infant, the 
 whole case upon which he relies. Holden v. Hearn, 1 Beav. 445. 
 
 31
 
 376 ANSWERS. [Chap. II. 
 
 by counsel is not required (I), the commissioners 
 being responsible for the propriety of its contents, 
 as it is supposed to be taken by them from the 
 mouth of the defendant, which in fact was formerly 
 done (in), 
 ^^wer^'"'^ °^ ^- If ^ plaintiff conceives an answer to be insuf- 
 ficient to the charges contained in the bill he may 
 take exceptions to it, stating such parts of the bill 
 as he conceives are not answered, and praying 
 that the defendant may in such respects put in a 
 full answer to the bill (n) (1). These exceptions 
 
 (Z) 3 Atk. 440. 437, and the cases there referred to, 
 
 (m) See Broicnv.Brwce, 2 Meriv.l. in note; Hodgson v. Butterfield, 2 
 (n) See Marsh v. Hunter, 3 Madd. Sim. & Stu. 236. 
 
 (1) [Exceptions to an answer cannot be sustained, unless there is 
 some material allegation, charge or interrogatory contained in the bill, 
 which has not been fully answered. And where new matter, not re- 
 sponsive to the bill, is stated in the answer, if such new matter is 
 wholly irrelevant, and forms no sufficient ground of defence, the com- 
 plainant may except to the answer for impertinence, or may raise the 
 objection at the hearing. This extract is taken from the opinion of 
 Chancellor VS'^alworth, in the case of Stafford vf^Brown, 4 Paige's R. 
 88 ; and his honor, in that opinion, still further shows, by referring to 
 Mitford, 315, Cooper's PI. 319, 1 Newland's P. 269, and Lube's Equity 
 PI. 87, how the exception must have reference to some part of the bill. 
 Although it may not be necessary, in the exceptions, to state the 
 precise words of the allegation, chai'ge or interrogatory in the bill which 
 is not fully answered, yet the substance, at least, must be stated: so 
 that, by reference to the bill alone, in connection with the exception the 
 court may see that the particular matters as to which a further answer 
 is sought are stated in the bill, or that such answer is called for by the 
 interrogatories. Per Ch. Walworth, in the same case, referring to 
 Hodgson V. Butterfield. 2 Sim. & Stu. 236. Material and necessary 
 matter must be explicitly met in an answer: but exceptions, founded 
 upon verbal criticism, slight defect and omission of immaterial matter, 
 will be invariably disallowed and treated as vexatious. Bogart v. 
 Henry, 1 Edwards' V. C. R. 7. See a reference to the New- York 
 Rules which relate exceptions, in note at page 308, ante.'] 
 
 Exceptions to report wiil be overruled with costs, if any of the
 
 S. 11. p. III.] ANSWERS. 877 
 
 must be signed by counsel (n), and are then deli- 
 vered to the proper officer, which must be done 
 
 (n) Candler v. Partington, 6 Madd. 102 ; Fa<c.9 v. //arrfy, 1 Jac 
 R. 223 
 
 exceptions allowed by the master were well taken. But where excep- 
 tions for impertinenre would mutilate the an.-^wer by breaking up sen- 
 tences or clauses, which ought to stand or fall together, or where the 
 allowance of an exception to part of a clause or sentence, would 
 wholly change the meaning of what remains or make it unintelligible, 
 the exceptions are to be disallowed. Franklin v. Keeler, 4 Paige's R. 
 382, 383. 
 
 Where a further answer is called for by exceptions, if defendant 
 find he has neglected to answer any thing that he was called upon 
 by the bill to discover, he may in answering the exceptions make his 
 answer perfect; although the exceptions do not cover the whole 
 ground upon whicji the original answer might have been objected to 
 for insufficiency. It seems also that he may in such further answer 
 set up any new matter of defence, although not responsive to the bill, 
 which has arisen since the filing of the original answer. Alderman v. 
 Potter, 6 Paige's R. 660. 558. 
 
 Liberty to except to an answer for insufficiency, is never granted, 
 where an answer on oath is waived by the complainant's bill. McCor- 
 mick V. Chamberlain, 1 1 Paige's Ch. R. 543. 
 
 An exception to an answer for insufficiency should state the charges 
 in the bill, the inteM»gatory applicable thereto, to which the answer 
 is responsive, and the terms of the answer, verbatim, so that the court 
 may see whether it is sufficient or not. Brooks v. Byam, 1 Story's C. 
 C. R. 296. 
 
 A defendant cannot in his answer to the bill excuse himself from 
 making a full discovery by merely denying the complainant's title to 
 discovery and relief ; as the complainant is entitled to a discovery of 
 all matters which will be essential to the relief claimed, in case he 
 should succeed in showing that the particular defence set up in the 
 answer is false or unfounded. It is a general rule of pleading in 
 chancery, that the defendant cannot by answer excuse himself from 
 answ-ering ; and tiiat if he attempts to make his defence by answer, 
 instead of by plea or demurrer, he must answer the whole of tlie state- 
 ments and charges contained in the bill, and all the interrogatories 
 properly founded upon them, so far as they are necessary to enable the 
 complainant to have a complete decree in case he suceeeds in the 
 suit. To this general rule there are a few well established exceptions. 
 Bank of Utica v. Messereau,! Paige's Ch. R. 517.
 
 377 ANSWERS. [Chap. II. 
 
 within a limited time, according to the course of 
 [316] the court (o), though upon appUcation further time 
 is allowed for the purpose, within certain restric- 
 tions {2^)' If the defendant conceives his answer 
 to be sufficient, or for any other reason does not 
 submit to answer the matters contained in the ex- 
 ceptions, one of the masters of the court is direct- 
 ed to look into the bill, the answer and the excep- 
 tions, and to certify whether the answer is sufficient 
 in the points excepted to or not {q). If the mas- 
 ter reports the answer insufficient in any of the 
 points excepted to, the defendant must answer 
 again to thosfe parts of the bill in which the mas- 
 ter conceives the answer to be insufficient; unless by 
 excepting to the master's report he brings the mat- 
 ter before the court, and there obtains a different 
 judgment (r) (1). But if the defendant has insis- 
 ted on any matter as a reason for not answering, 
 though he does not except to the master's report, 
 yet he is not absolutely precluded from insisting on 
 [317] the same matter in a second answer (s), and ta- 
 
 (0) 3Atk. 19; Thomas v.Llewel- Coop. R. 212; Hirst v. Pierce, 4 
 
 lyn, 6 Ves. 823. Pri. Ex. R. 339 ; Scott v. Mackintosh, 
 
 (p) Anon. 3 Atk. 19 ; 14 Ves. 536 ; 1 Ves. & B. 503 ; Amhurst v. King, 
 
 Baring v. Prinsep, 1 Madd. 526. 2 Sim. & Stii. 183. 
 
 (5) Ord. in Cha. 53, Ed. Bea. ; (r) Anon. 3 Atk. 235 ; Hornby y. 
 
 Partridge V. Haycraft, 1\ Ves. 510; Pemberton, Mos. 57; Worthington 
 
 11 Ves. 577 ; 1 Ves. & B. 333. As v. Foxhall, 3 Barnard, 261 ; Finch v. 
 
 to the right of the masters to exercise Finch, 2 Ves. 491 ; 11 Ves. 577. 
 a discretion with regard to the mate- (s) Finch v. Finch, 2 Ves. 491. 
 
 riahty of interrogatories not answered. See Orey v. Leighton, 2 Sim. & Stii. 
 
 see Agar v. RegenVs Canal Camp. 236. 
 
 (1) As to the conditions, character and form of exceptions to mas- 
 ter's report, on reference for any purpose, and as regarded by the Su- 
 preme Court of U. S.jSee Story v. Livingston, 13 Peters, 359.
 
 S. II. p. III.] ANSWERS. 378 
 
 king the opinion of the court whether he ought to 
 be compelled to answer further to that point or 
 not (t). ^ 
 
 Where a defendant pleads or demurs to any part 
 of the discovery sought by a bill, and answers like- 
 wise, if the plaintiff takes exceptions to the answer 
 before the plea or demurrer has been argued, he ad- 
 mits the plea (u) or demurrer (x) to be good ; for 
 unless he admits it to be good it is impossible to 
 determine whether the answer is sufficient or not. 
 But if the plea or demurrer is only to the relief 
 prayed by the bill, and not to any part of the dis- 
 eovery, the plaintiff may take exceptions to the 
 answer before the plea or demurrer is argued (y). 
 If a plea or demurrer is accompanied by an answer 
 to any part of the bill, even a denial of combination 
 merely, and the plea or demurrer is overruled, 
 the plaintiff must except to the answer as insuffi- 
 cient (z) (2). But if a plea or demurrer is filed 
 without any answer, and is overruled, the plaintiff 
 
 (<) As to the practice in case the (u) See Darnell v. Reyny, 1 Vern. 
 defendant should put in successively 344. 
 
 as many as four insufficient answers, {x) See Boyd v. Mills, 13 Ves. 85, 
 see Farquharson v. Balfour, 1 Turn. (y) 3 P. Wms. 327, note S. See 
 R. 184 (1). however 2 Atk. 390. 
 
 (2) Cotes V. Turner, Bunb. 123. 
 
 (1) When the court have once ordered the respondents to answer 
 more fully on such matters, and exceptions are taken and sustained 
 again to omissions or evasions, the court will not allow the answers to 
 be amended without cost, to be followed by harsher measures, if the 
 omissions are repeated. Kitlridge v. Claremoni Bank, 1 Minot and 
 Wood, C. C. R. 244. 
 
 (2) Where demurrer is accompanied by answer, althougli such answer 
 denies combination and the demurrer is overruled, if complainant wants 
 a further answer, he must e.xcept to the answer for insufficiency. 
 Many v. Beekman Iron Co., 9 Paige's R. 196, 188.
 
 378 ANSWERS. [Chap. II. 
 
 need not take exceptions, and the defendant must 
 answer the whole bill as if no defence had been 
 md!de to it {a). 
 
 379 A further answer is in every respect similar to, 
 [318] and indeed is considered as forming part of, the 
 
 Further answers ^ ^ c^ . l l i 'ii • 
 
 and answers to iirst auswcr. feo au auswcr to an amended bill is 
 
 amended bills. 
 
 considered as part of the answer to^'the original 
 bill (1)). Therefore if the defendant in a further 
 answer, or an answer to an amended bill, repeats 
 anything contained in a former answer (c), the re- 
 petition, unless it varies the defence in point of sub- 
 stance, or is otherwise necessary or expedient, will 
 be considered as impertinent (d) ; and if upon re- 
 ference to a master such parts of the answer are 
 reported to be impertinent, they will be struck out 
 as such, with costs, which in strictness are to be 
 paid by the counsel who signed the answer (e). 
 Dieciaimers. 4. A defendant may disclaim all right or title ta 
 
 the matter in demand by the plaintiff's bill, or by 
 any part of it (/). But a disclaimer cannot often 
 be put in alone. For if the defendant has been 
 made a party. by mistake, having at the time no 
 interest in the matter in question, yet as he may 
 have had an interest which he may have parted 
 
 {a) Ibid. As to the practice with see Ovey v. Leighton, 2 Sim. & Stu. 
 
 reference to the obtaining of time to 234. 
 
 answer in such a case, see Trim v. (c) S7nith v. Serle, 14 Ves. 415. 
 Baker, 1 Sim. &, Stu. 469 ; S. C. on {d) 3 Atk. 303 (I). 
 appeal, 1 Turn. R. 253, in accordance (e) Ord. in Cha. 167, Ed. Bea. ; 
 
 with Jones v. Saxhy, mentioned 1 16 Ves. 234. 
 
 Swanst. 194, note (a), and overruling (/) See Archhold v. Borrold, 
 
 Griffith V. Wood, 1 Ves. & Bea. 541. Gary R. 69 ; Seton v. Slade, 7 Ves. 
 
 (6) 3 Atk. 303 ; Dick. 583 ; S^ur- 265. 
 rier v. Fitzgerald, 6 Ves. 548 ; and 
 
 (1) [Bennington Iron Co. v. Campbell, 2 Paige's C. K. 160.]
 
 380 
 
 S. II. P. III.] ANSWERS. 379 
 
 with, the plaintiff may require an answer sufficient 
 to ascertain whether that is the fact or not ; and, 
 if the defendant has had an interest which he has [319] 
 parted with, an answer may be also necessary to 
 enable the plaintiff to make the proper party, in- 
 stead of the defendant disclaiming (1). The form 
 of a disclaimer alone seems to be simply an asser- 
 tion that the defendant disclaims all right and title 
 to the matter in demand, and in some instances, 
 
 (1) A defendant cannot shelter himself from the necessity of put- Necessity of a 
 ting in a full answer, by disclaimer of all interest in the matters in the accompanied by 
 
 suit, where, although he may have no interest but may have assigned 
 all his interest, yet he is accountable to the plaintiff or to a co-defen- 
 dant : for a man cannot disclaim his liability. Glassinglon v. Thwaites 
 2 Russ. 458. [And a defendant cannot gi t rid of the effect of his 
 disclaimer, except upon a distinct application, supported by affidavits 
 establishing special ground. Sidden v. Lediard. \ Russ. &. M. 111.] 
 
 On application by complainant to take defendant's disclaimer and 
 answer off the files, it was held that defendant by disclaimer cannot 
 deprive complainant of the right of a full answer, unless it is evident 
 defendant ou^^ht not after such disclaimer to be continued a party. 
 When complainant is entitled to answer, and defendant puts in a simple 
 disclaimer, the only remedy is to move to take the disclaimer off the 
 files, exceptions cannot be filed to it. But where the disclaimer is ac- 
 companied by an insufficient answer, the proper course appears to be 
 to except to the answer on the ground of iis insufficiency. If a corpo- 
 ration is made a party to a suit in which it has no interest and ought 
 not to have been made a party, an officer of the corporation who has 
 no personal interest, and is not charged with any fraud or misconduct, 
 cannot be compelled to answer matters as to which he is a mere wit- 
 ness. Ellsworth V. Curds el al., 10 Paige's R. 107-8, 105. 
 
 And where a bill seeks to compel trustees to pay a fund to the plain- 
 tiff, and prays that the costs of the suit may be paid by other defen- 
 dants, on the ground that they had rendered the suit necessary by set- 
 ting up a claim to the fund, and the bill contains divers allegations in 
 support of that fact; it is not sufficient for them to put in what they 
 call an answer and disclaimer, merely stating that they do not claim, 
 and never claimed, any interest in the fund ; for they must answer 
 every allegation which goes to show that a claim was set up. Gru' 
 ham V. Coape, 3 My. &. C. 638. 
 
 an answer.
 
 380 ANSWERS. [Chap. II. 
 
 from the nature of the case, this may perhaps be 
 sufficient ; but the forms given in the books of 
 practice are all of an answer and disclaimer (1). 
 
 If the defendant disclaims, the court will in gene- 
 ral dismiss the bill as against him with costs. But 
 it has been said, that if the plaintiff shows a proba- 
 ble cause for exhibiting the bill, he may pray a de- 
 cree against the defendant, upon the ground of the 
 disclaimer (h). Where the defendant disclaims, 
 the plaintiff ought not to reply (?'). 
 
 381 A defendant may demur to one part of a bill, 
 
 Making different , , , , i t i • 
 
 defences to the plead to anothcr, answer to another, and disclaim as 
 
 same bill. ■•■ 
 
 to another. But all these defences must clearly 
 refer to separate and distinct parts of the bill. For 
 the defendant cannot plead to that part to which 
 he has already demurred ; neither can he answer 
 to any part to which he has either demurred or 
 pleaded (k) (2) ; the demurrer demanding the 
 judgment of the court whether he shall make any 
 answer, and the plea whether he shall make any 
 other answer than what is contained in the plea. 
 [320] Nor can the defendant by answer claim what by 
 
 (h) Prac. Reg. 175, Wy. Ed. Atk. 562. 
 
 (i) Prac. Reg. 176, Wy. Ed.; 3 {k) 2 Bro. Pari. Ca. 20, 21. 
 
 (1) [Though a disclaimer is in substance distinct from an answer, 
 yet it generally adopts in most respects the formal parts of an answer 
 the words of course preceding and concluding an answer being used in 
 a disclaimer. Cooper, 311.] 
 * (2) See note, page 248, supra. 
 
 \Clark.v. Phelps, 6 J. C. R. 214. In mortgage cases, within the 
 court of chancery of the State of New-York, where a defendant has 
 written notice of the suit and appears and disclaims, he shall not re- 
 cover costs, but shall pay costs to the complainant. 133d Rule ; and 
 in connection, see Rule 132.]
 
 S. II. p. III.] 
 
 ANSWERS. 
 
 381 
 
 disclaimer he has declared he has no right to (J). 
 A plea (m) or answer (n) will therefore overrule a 
 demurrer, and an answer (o) a plea (2) ; and if a 
 disclaimer and answer are inconsistent, the matter 
 will be taken most strongly against the defendant 
 upon the disclaimer. 
 
 (I) See the case of Seton v. Slade, 
 7 Ves. 265. 
 
 (m) Dormer v. Fortescue, 2 Atk. 
 282; 3 P. Wms. 80, 81; Arnold's 
 case, Gilb. For. Rom. 59. 
 
 («) Abraham v. Dodgson, 2 Atk. 
 157; 3 P. Wms. 81; Sherwood v. 
 Clack, 9 Pri. Ex. R. 259 (1). 
 
 (o) Pierce v. Johns, Bunb. 11; 
 Cottington v. Fletcher, 2 Atk. 155 ; 
 3 P. Wms. 81 ; Dobbyn v. Barker, 
 5 Bro. P. C. 573, Toml. Ed. ; Earl 
 of Clanrickard v. Bourke, 6 Bro. 
 P. C. 4 Toml. Ed. ; 1 Sim. & Stu. 
 6; Watkins v. Stone, 2 Sim. & Stu. 
 560. 
 
 (1) [Bolton V. Gardner, 3 Paige's C R. 273.] 
 
 (2) See note, p. 248, supra.
 
 382 
 
 [321] 
 
 CHAPTER THE THIRD. 
 
 OF REPLICATIONS AND THEIR CONSEQUENCES. 
 
 A REPLICATION is the plaintiff's answer or reply to 
 the defendant's plea or answer. Formerly, if the 
 defendant by his plea or answer offered new mat- 
 ter the plaintiff replied specially (a) ; otherwise the 
 replication was merely a general denial of the truth 
 of the plea or answer, and of the sufficiency of the 
 matter alleged in it to bar the plaintiff's suit, and 
 an assertion of the truth and sufficiency of the bill. 
 The consequence of a special replication was a re- 
 joinder, by which the defendant asserted the truth 
 and sufficiency of his answer, and traversed every 
 material part of the replication (b). If the parties 
 were not then at issue. by reason of some new mat- 
 ter disclosed in the rejoinder which required an- 
 swer, the plaintiff might surrejoin to the rejoinder, 
 and the defendant might in like manner ad-surre- 
 join, or rebut, to the surrejoinder (c). The incon- 
 venience, delay, and unnecessary length of plead- 
 [322] ing, arising from these various allegations on each 
 side (d) occasioned an alteration in the prac- 
 tice. Special replications, with all their conse- 
 
 (a) Ord. in Ch. 70, Ed. Bea. (c) West. Symb. Cha. 195, a.; 
 
 (6) 2 West. Sym. Chan. 195, a. Prac. Reg. 371, Wy. Ed. 
 232, b. 246, b. (d) See Ord. in Cha. 70, Ed. Bea.
 
 Chap. III.] replications. 383 
 
 quences, are now out of use (e), and the plaintiff 
 is to be relieved according to the form of the bill, 
 whatever new matters may have been introduced 
 by the defendant's plea or answer (/). But if 
 the plaintiff conceives, from any matter offered by 
 the defendant's plea or answer, that his bill is not 
 properly adapted to his case, he may obtain leave {g) 
 to amend the bill (A), and suit it to his case, as he 
 
 (e) Prac. Reg. 372, Wy. Ed. (1) (/) Prac Reg. 372, Wy. Ed. 
 Indeed if a plaintiff is disposed to (g-) See 1 Ves. 448. 
 controvert a part of a case made by (h) And this will be permitted after 
 
 the defendant's answer, and to admit replication ; and leave will be granted 
 
 the rest, he may still put in a replica- to the plaintiff to withdraw the repli- 
 
 tion so far special, that it is confined cation and amend the bill (2). See 
 
 to the particular matter controverted, Pott v. Reynolds, 3 Atk. 565 ; Pitt 
 
 instead of being a general denial of v. Watts, 16 Ves. 126; Cowdell v. 
 
 the truth of the whole answer ; and Tatlack, 3 Ves. & B. 19 ; Lord Kil- 
 
 then the defendant is put only to courcy v. Ley, 4 Madd. 212. 
 proof of the matter replied to. 
 
 -^ 
 
 (1) [Storms V. Storms, Edwards' V. C. Rep. 358. No special re- 
 plication allowed to be filed in the court of chancery of the State of 
 New-York without leave of the court on cause shown. 65th Rule.] 
 So by rule in Massachusetts, 24 Pick. R. 413, and in U. S. Courts, 
 Vaitier v. Hinde, 7 Peters' R. 274, 252. 
 
 A general replication to a ploa and an answer in support of it, ad- 
 mits the sufficiency of the plea as much as if it had been set down for 
 argument and allowed ; and if the facts relied on by the plea be proved, 
 the bill will on hearing be dismissed, of course. If a replication be 
 filed inadvertently the court will permit it to be withdrawn, Hughes v. 
 Blake, 6 Wheat. 453, 5 Cond. Rep. 140, 136. 
 
 On replication no statement in the answer not responsive to the bill 
 's available for defendant on hearinif, unless established by proof. 
 Wakeman v. Grover et al, 4 Paige's R. 33, 23. Affirmed, 11 Wend. 
 R. 187. 
 
 To enable either party to take proofs on the fjupstion of usury, the 
 answer should aver the transaction to be usurious. An alleiration of 
 defendant, that he is informed and believes it is tainted with usury, is 
 not sufficient to render it necessary to file a replication to that answer. 
 Suydam v. Bartle, 10 Paige R. 97, 94. 
 
 (2) [But it will not be permitted, unless the complainant shows the 
 materiality of the amendments, and why the matter proposed as an 
 amendment was not before stated in the bill. Brown v. Rickets, 2 
 J. C. R. 425.]
 
 383 REPLICATIONS. [Chap. III. 
 
 shall be advised (i). To this amended bill the de- 
 [323] fendant may make such defence as he shall think 
 proper, whether required by the plaintiff to answer 
 it or not (A:). 
 
 384 According to the present course of the court, al- 
 though rejoinders are disused, yet the plaintiff, af- 
 ter replication, must serve upon the defendant a 
 subpoena requiring him to appear to rejoin, unless 
 he will appear gratis (I) (3). The effect of this 
 process is merely to put the cause completely at 
 issue between the parties. For now, immediately 
 after the defendant has appeared to rejoin gratis, 
 or after the return of a subpoena to rejoin served 
 on the defendant, and which by order obtained of 
 course is now usually made returnable immediate- 
 ly, and served on the defendant's clerk in court, 
 
 (i) As to the extent to which this allowed, without leave of the court, 
 
 liberty may be carried, see 2 Sch. Si, Taylor v. Shaw, 2 Sim. & Stu. 12. 
 Lefr. 9 ; Seeley v. Boehm, 2 Madd. (k) The original bill is rendered 
 
 R. 176; Mazzaredo v. Maitland, 3 nugatory by amendment, 3 Madd. 
 
 Madd. 66 (1). As to the couse- 429 ; and if the alteration be so con- 
 
 quence of making an entirely new siderable as, according to the prac- 
 
 case by the amendment, see Mavor tice of the court, to make it necessa- 
 
 V. Dry, 2 Sim. & Stu. 113 (2). And ry that a new ingrossment should be 
 
 as to the adding or striking out a filed as of record, counsel's signature 
 
 prayer for relief, see Butterworih v. must be afiixed thereto. Kirkley v. 
 
 Bailey, 15 Ves. 358 ; Earl of Choi- Burton, 5 Madd. 278 ; Webster v 
 
 mondeley v. Lord Clinton, 2 Ves. & Threlfall, 1 Sim. '&. Stu. 135 ; Pitt 
 
 B. 113. But it may be observed that v. Macklew, 1 Sim. & Stu. 136, n. 
 the plaintiff may not amend his bill (Z) Anon. Mos. 123, 296; Flower 
 
 after plea to part thereof has been v. Herbert, Dick, 349. 
 
 (1) [Lyon V. Tallmadge, 1 J. C. R. 184; Livingston v. Gibbons, 4 
 ib. 94; Thorn v. Germond, ib. 363; Beekman v. Waters, 3 ib. 410; 
 Shepherd v. Merrill, ib. 423; Remoick v. Wilson, 6 ib. 81.] 
 
 (2) [Also Pratt v. Bacon, 10 Pickering's R. 123.] 
 
 (3) By the 93d order of May, 1845, no subpoena to rejoin is to be 
 issued, but upon the filing. of the replication therein prescribed, the 
 cause is to be completely at issue.
 
 S. II. p. III.] REPLICATIONS. 884 
 
 the parties may proceed to the examination of wit- 
 nesses to support the facts alleged by the pleadings 
 on each side (m). Where by mistake a replication 
 has not been filed, and yet witnesses have been 
 examined, the court has permitted the replication 
 to be filed nunc pro tunc {li). 
 
 (jn) Mosely, 296; Prac. Reg.371, novo. See Berks v. Wigan, 1 Ves. 
 
 Wy. Ed. It may be noticed that &, B. 221 ; Brickwood y. Miller, 1 
 
 leave will in some instances be given Meriy. 4. 
 
 to withdraw a rejoinder and rejoin de (n) Rodney v. Hare, Mosely, 296.
 
 385 
 
 [324] CHAPTER THE FOURTH. 
 
 OF INCIDENTS TO PLEADINGS IN GENERAL. 
 
 Amendment of 
 bill before the 
 hearing. 
 
 In the preceding chapters have been consider- 
 ed the nature of the pleadings used in the equita- 
 ble jurisdiction of the court of chancery, and the 
 manner in which they are brought to a termination. 
 Before the proceedings arrive at that point the 
 court will frequently permit the pleadings filed to 
 be altered, as the purposes of parties may re- 
 quire («) (1), except in the case of answers put in 
 
 (a) As to the amendment of bills, v. Leadbeater, 13 Ves, 230; Merre- 
 
 see above, pp. 67, 383 ; of demurrers, wether v. Mellish, 13 Ves. 435 ; 
 
 Gleggv.Legh, 4 M&dd. 208; Thorpe Wood v. Strickland, 2 Ves. & B. 
 
 V. Macaulay, 5 Madd. 218; and 150 ; Thompson v. Wild, 5 M&dd. 82. 
 
 above, p. 253 ; and of pleeis, Dobson [Jackson v. Rowe, 4 Russ. 588.] 
 
 Q) Th^ principle of the New-York Revised Statutes directing that 
 mistakes of day, month and year in pleading or record, which could 
 be amended by the court after verdict, shall be disregarded on trial, 
 unless it surprise or mislead the adverse party, and prevent his prepa- 
 ration for a full answer on the merits and which it has been decided, 
 applies to a mistake in setting out the deed or instrument which is the 
 foundation of the suit, applies to a court of chancery, though it is not 
 in terms extended to this court. Therefore, if the party could not 
 Jiave been misled by a mistake in the date, the bill should not be dis- 
 missed, or defence rejected bj reason of a mere clerical rriistake of this 
 kind, where -«pon the face of the record, the variance will not render 
 complainant's claim to relief, or defendant's defence bad in substance. 
 It was so held on appeal from a vice-chancellor, from a decree of fore- 
 closure, that if the party (appellant) apprehend danger of liability a
 
 Chap. IV.] incidents to pleadings. 385 
 
 upon oath, in which the court, for obvious reasons, 
 
 will not easily suffer any change to be made (h). 386 
 
 (b) A special application is neces- Wharton, Dick. 84 ; Patterson v. 
 
 sary for the purpose, 4 Madd. 27, and Slaughter, Ambl. 292; and cases 
 
 the court will not as formerly, (see 3 cited, 1 Ves. & B. 150, note (a); 
 
 Barn. 51 ; 2 Eq. Ca. Ab. 60 ; Whar- 10 Ves. 285, 401); give leave to ■ 
 
 ton V. Wharton, 2 Atk. 294; Dagley amend the answer itself (1), except 
 
 V. Crump, Dick. 35; Bedford v. in the case of an infant defendant. 
 
 second time for the note or mortgage, he may have the original bill on 
 file \vhich is to constitute a part of the enrolled decree amended so as 
 to conform to the true date, if it is not already right in this respect. 
 And that would have been allowed by the vice-chancellor, as a matter 
 of coufs-e at the hearing, if defendant or counsel had asked for it. It 
 therefo:e forms no ground for reversal upon the appeal, for the answer 
 shows that defendant could not have be'en misled by the clerical mis- 
 take in substituting, in this case, April for August. Ontario Bank v. 
 Schermerhorn, 10 Paige's R. 111-112, 109. 
 
 Where a plaintiff amends his bill, after answer, in such a manner Amended bill in- 
 that the case made or the relief asked by the bill is totally inconsistent the original bill, 
 with the case made or the relief asked by the original bill, the bill is 
 demurrable : as where the original bill prays that a bond may be de- 
 livered up to be cancelled, on the ground of its having been satisfied, 
 while the amended bill prays that an account may be taken of what is 
 due upon the bond. Cresy v. Beavan, 13 Sim. 354. 
 
 (1) The practice of amending the answer of a defendant, which 
 prevailed previously to the time of Lord Thurlow, has been discontinued 
 in this country as well as in England. The modern practice is, on a 
 proper case, to permit defendant to file a supplemental answer, thus 
 giving complainant the benefit of the original answer with the expla- 
 nations or denials in the supplemental answer. Where such permission 
 is given after proofs, it is proper to allow the te.-'timony taken to be used 
 at hearing witiiout re-examination to save facts ; giving parties op- 
 portunity for further proof as to the new matters put in i.-^sue by the 
 supplemental answer. A defendant who is allowed a supplemental 
 answer to correct a mistake in his original — should pay the extra costs 
 of adverse party consequent from his neglect to put in a proper answer. 
 Where defendant by mistake or under misapprehension of his rights, 
 or of the facts in the case makps an admission in his answer incon- 
 sistent with the truth, the court will permit him to file supplemental 
 answer, correcting the niistake, to enable him to produce proofs to show 
 that the fact is otherwise than so admitted by him. But the court will 
 not permit such supplemental answer to be filed unless it is evident
 
 387 INCIDENTS TO PLEADINGS. [ChAP. IV. 
 
 [325] After the examination of witnesses no part of 
 
 Savage v. Carroll, 1 Ball & B. clerical error (1), {Griffiths v. Woody 
 548,) and except in cases of mere 11 Ves. 62; Peacock v. Duke of 
 
 there has been a mistake in the original- answer, and that the general 
 justice and equity of the case require a supplemental answer. Hughes 
 V. Bloomer, 9 Paige's R. 371,269. 
 
 (1) Courts of equity are very indulgent in allowing amendments of 
 answers in matters of form, mistake of dates, or verbal inaccuracies. 
 But for amendments in material facts, or to change essentially the 
 grounds taken in tlie original answer, the court are exceedingly re- 
 luctant, and require very cogent circumstances, and such as repel the 
 r notion of any attempt of the party to evade the justice of the case, or 
 
 to set up new and ingeniously contrived defeuces or subterfuges. 
 When the object is to introduce new facts wholly dependent on parol, 
 the reluctance of the court is greatly increased, as it encourages care- 
 lessness, and leaves room for manufactured evidence. Not so where 
 documents are omitted by mistake or accident. These cannot speak 
 a different language. It rests in discretion, and the court may grant 
 leave to file an amended answer when the purposes of substantial jus- 
 tice require it. But it should appear that the facts to be added are 
 highly probable, material, that party has not been guilty of gross neg- 
 ligence, and that the mistakes and facts have been discovered since 
 the original answer was sworn to. Smith v. Babcock, 3 Sumner's R. 
 (Mass.) 585-6, 583. 
 
 Where new matters of defence are discovered after answer, but ex- 
 isted before, defendant should apply for leave to file a supplemental an- 
 swer, instead of resorting to a cross bill only. Such matters, it seems, 
 cannot be set up in the cross bill. Talmage v. Pell et al., 9 Paige's 
 R. 412, 413, 410. 
 
 Leave will be given to file a supplemental answer to correct a plain 
 answer to cor- mistake in the original answer. White v. Sayer, 5 Sim. 566. 
 
 And a supplemental answer will be allowed to be filed to state that 
 a passage was hastily inserted by mistake in the answer after it was 
 engrossed, where the application is supported by an afiidavit as to the 
 mistake, and not opposed by a counter affidavit. Swallow v. Day, 2 
 Coll. Ch. 133. 
 
 And leave will be given to file a supplemental answer, even after 
 the cause is in the paper for hearing, in order to correct a date, where 
 the defendant states that he was obliged to insert the date in the 
 former answer from memory, and the correction will have the effect of 
 creating a good defence to the bill. Fulton v. Gilmour or Gilmore, 8 
 Beav. 154 ; 1 Phil. 522. See also Bell v. Dunwore, 7 Beav. 283. 
 
 Leave will also be given to file a supplemental answer to correct a 
 
 rect a mistake.
 
 Chap. IV.] incidents to pleadings. 387 
 
 the pleadings (c), can be altered or added to, but 
 
 Bedford, 1 Ves. & B. 18C ; White v. lege, 8 Vee. 79 ; 10 Ves. 285 ; 19 Ves. 
 
 Godhold, 1 Ma.dd.R.269; Faircloth 584; Curling v. Marquis Towns- 
 
 V. Webb, 5 Madd. 73, but see Ridley hend, 19 Ves. G28 ; Strange v. Col- 
 
 V. Obee, Wightw. 32.) but, upon its lins, 2 Ves. &, B. 163 ; Edwards v. 
 
 conscience being satisfied that the M'Leay, 2 Ves. & B. 256 ; 4 Madd. 
 
 defendant ought not to be concluded 407,) as a mode by which justice may 
 
 by the answer as upon record, (10 be more surely administered, 19 Ves- 
 
 Ves. 401 ; 4 Madd. 27 ; and see Ten- 631. 
 
 nant v. Wilsmore, 2 Anstr. 362,) if (c) As to bills, see Wright v. 
 
 the matter already brougiit forward Howard, 6 Madd. 106, and above, p. 
 
 be ambiguously stated, and it appear 67. Where no witness has been ex- 
 
 that the defendant meant to swear amined, an amendment has been 
 
 to it in the sense which he seeks permitted after publication passed- 
 
 upon hia application to put upon it, Hastings v. Gregory, in the Excheq 
 
 (i/cese^/ V. TVfZson, 1 Ves. & B. 149,) 19th Nov. 1782; 1 Fowl. Excheq] 
 
 or if it be desired to introduce new Pr. 127 ; Sanderson v. Thwaites, in 
 
 matter (1), and it appear that the de- Chan. Trin. 1782. With respect to 
 
 fendant, at the time of putting in the answers, see Chute v. Lady Dacres, 
 
 original answer, was not aware there- 2 Freem. 172; Mullins v. Sim- 
 
 of, {Wells V. Wood, 10 Ves. 401,) it monds, Bunb. 186; Kingscote v. 
 
 will permit a supplemental answer Bainsby, Dick. 485 ; Tennant v. 
 
 to be filed, {Jennings v. Merton Col- Wilsmore, Anstr. 362. 
 
 mistake upon a particular point, where the defendant, in his answer, 
 has spoken as to his belief only, with regard to the point, and where 
 the application for leave is supported by an affidavit that he has since 
 been more correctly informed. Frankland v. Overend, 9 Sim. 365. 
 
 And where a defendant by his answer pleads a modus for all tithes, 
 and afterwards moves to file a supplemental answer stating that he 
 had since discovered that the modus covered part only of the tithes, 
 the court will order the cause to proceed as if the modus had been 
 laid in the manner proposed. Podmore v. Skipiviih, 2 Sim. 565. 
 
 But where a bill is filed against a solicitor for negligence in re- 
 spect to a deed, and by his answer he admits that the firm to which 
 lie belonged were paid for drawing the deed, and that the bill of 
 cos's is in his possession; lie will not be allowed to file a supple- 
 mental answer, denying those admissions, and stating that he had 
 since discovered, on examining his books, that the deed was drawn 
 by his deceased partner gratuitously. Greenwool v. Atkinson, 4 
 Sim. 54. 
 
 (1) Leave will be oiven to a defendant, before publication has 
 passed, to file a supplemental answer to state information he has answer to intro- 
 received subsequently to the filing of his original answer. Farmer ter. 
 V. Farmer, 6 Jur. 72, V. C. E. 
 
 32
 
 388 INCIDENTS TO PLEADINGS. [ChAP. IV. 
 
 under very special circumstances (1), or in conse- 
 quence of some subsequent event, except, that if 
 the plaintiff at any time discovers that he has not 
 made proper parties to his bill, he may obtain leave 
 to amend his bill for the special purpose of adding 
 the necessary piarties (d) (2) ; and leave has also 
 
 {d) Anon. 2 Atk.l5; Goodwin v. Cur. Cane. 546; see above, pp. 67, 
 Goodwin, 3 Atk. 370 ; 1 Prax. Aim. 383. 
 
 So leave will be given, after replication, to file a supplemental 
 answer to a bill for dower, in order to state a fine and non-claim 
 which have been omitted to be stated in the original answer, through, 
 ignorance of the levying of the fine. Jackson v. Parish, 1 Sim. 505. 
 
 And where a plaintiff" claims a share of an intestate's estate un- 
 der the statute of distributions, and tlie defendant, after filing his 
 answer, discovers that the intestate was domiciled in a foreign coun- 
 try, leave will be given to file a supplemental answer for the purpose 
 of stating that fiat. Tidswell v. Boyer, 7 Sim. 64. 
 
 But after a decree nisi in a tithe suit, the defendant will not be 
 allowed to file a supplemental answer, setting up a modus founded 
 on evidence with which the defendant has subsequently become ac- 
 quainted, even though the defendant offers to indemnify the plaintifi' 
 as to any extra costs occasioned by setting up a new defence ; for, 
 in such case, it is impossible to put the plaintiff in the same situation 
 as he would have been in if this defence had been stated on the 
 record in due time. M^Dougal v. Furrier, 4 Russ. 486. 
 
 (1) See supra, pp. 74 and 75, and notes. 
 
 Where at the time of amending his bill, a plaintiff" has changed 
 his residence, it should be stated by amendment ; for the rule that 
 subsequent facts are the proper subject of a suppfemental bill, and 
 not of amendment, does not apply to a mere change of residence. 
 Kerr v. Gilkspie, 7 Beav. 269, 
 
 By answering an amended bill a defendant does not preclude him- 
 self from the right of objecting at the hearing to matter originally 
 introduced into the bill by amendment, where he takes the objection 
 by his answer, and reserves to himself the same benefit of it as if he 
 had pleaded it in bar. Milligdn v. Mitchell, 1 My. &- C. 433. 
 
 (2) An order to amend as the plaintiffs may be advised, dues not au- 
 thorize the striking out of the names of co-plaintiffs. Sloggpll v. 
 Collins, 13 Sim. 456. [But an amendment by adding a party com- 
 plainant is not a matter of course. Lucton School v. Scarlet, \S- 
 Price5l.]
 
 Chap. IV.] incidents to pleadings. 388 
 
 been given to amend the prayer under particular 
 circumstances (<?). If any event happens which 
 ahers the interest of any party, or gives any new 
 interest to any person not a party, the plaintiff may \. 
 file a supplemental bill, or bill of revivor, as the 
 occasion may require. And if the plaintiff thinks 
 some discovery from the defendant, which he has 
 not obtained, is necessary to support his case, he 
 may file a supplemental bill to obtain that disco- 
 very ( f ). He may also file a supplemental bill to 
 put in issue any matter necessary to his case when 
 he cannot obtain permission to alter his original 
 bill by amendment (1) ; but he cannot upon such a 
 supplemental bill examine witnesses to any matter 
 in issue by the original bill {g). 
 
 If upon hearing the cause the plaintiff appears 
 entitled to relief, but the case made by the bill is 
 insufficient to ground a complete decree, the court 
 will sometimes give the plaintiff leave to file a sup- 
 plemental bill, to bring the necessary matter, in ad- 
 
 (c) Cook V. Martin, 2 Atk. 2; Atk.371; Usborne v. Baker, 2 Madd. 
 
 Harding v. Cox, 3 Alk. 583 ; Palk R. 379. 
 V. Lord Clinton, \2 Ves. Jun. 48. (g) Bagenal v. Bagenal, G Bro. 
 
 (/) Boeve \. Skipworth, 2 Ch. P. C. 81, Toml. Ed. 
 Rep. 142 ; Goodwin v. Goodwin, 3 
 
 389 
 [326] 
 
 Supplemental 
 bill or bill of re- 
 ivor. 
 
 (1) See supra, p. 74 & 75, and notes. But where pending suit 
 and after answor, and pending accounts before master, a release was 
 given — and introduced in proof without exception, one party contend- 
 ing it was by duress, the otlier that it was voluntary ; it was held that 
 no cross-bill or supplemental answer was necessary to bring it before 
 the court. There is no propriety in requiring technical and formal 
 proceedings, when they tend to embarrass and delay the administra- 
 tion of ju.stice ; unless they arc reriuired by eome fixed principles of 
 equity, law or practice, which the court would nvl be at libLrty to disr 
 regard. Kelsey cj- M'lnlyre v. Hobby i\- Bond, 16 l\teit, 277-8, 
 269.
 
 389 INCIDENTS TO PLEADINGS. [ChaP. IV. 
 
 dition to the case made by the original bill, before 
 he"rij''°* °" the court (h). If the addition of parties only is 
 wanted (i), an order is usually made for the cause 
 to stand over, with liberty to amend the bill by ad- 
 ding the proper parties (1) ; and in some cases 
 890 where a matter has not been put in issue by a bill 
 
 [327] with sufficient precision,. the court has, upon hear- 
 ing the cause, given the plaintiff liberty to amend 
 the bill for the purpose of making the necessary 
 alteration (k) (2). 
 
 Amendment inrni ^ •!• • r ^ --ii 
 
 the case of an 1 hc court cousidemig miants as particularly 
 under its protection will not permit an infant plain- 
 tiff to be injured by the manner in which his bill 
 has been framed. Therefore, where a bill filed on 
 behalf of an infant submitted to pay off a mortgage, 
 and upon hearing the cause the court was of opin- 
 ion that the infant was not bound to pay the mort- 
 
 (h) 3 Atk. 133. of neglect to amend within a reason- 
 
 (i) See above, pp. 67, 383. able time, see Cax v. Allingham,3 
 
 {k) Filkin v. Hill, 4 Bro. P. C. 640, Madd. 393. (3) 
 Toml. Ed. As to the practice in case 
 
 infant. 
 
 (1) Under an order made on the hearing, that the cause should 
 biii™by addins stand over, and that the plaintiff-; should be at liberty to amend their 
 co-^lamtiffs and biH for the purpose of adding parties, as the\f might be advised, or of 
 the hearing. showing why they Were unable to bring all proper parties before the 
 
 court, the plaintiffs are not entitled to add parties as co-plaintiffs, and 
 introduce new matter explaining the interests of such new co-plaintiffs ; 
 because the plaintiffs would thereby be substituting a new record ; so 
 that if the witnesses swore falsely, and their depositions were read, they 
 could not be indicted for perjury, because they would be depositions in a 
 cause of which the record no longer existed. . Milligan v. Mitchell, 1 
 My. &Cr. 433. 
 
 (2) [Where there is a clear mistake in an answer, which is proper to 
 be corrected, the practice is to permit the defendant to file an additional 
 or supplemental answer. But this is allowed with great caution ; and 
 only where there is a mistake, properly speaking, in a matter of fact. 
 Bowen v. Cross, 4 J. C. R. 375.] See supra, pp. 385-7, notes. 
 
 (2) [Also Franklin v. Beamish, 1 Hogan 72.]
 
 Chap. IV.] incidents to pleadings. 390 
 
 gage, it was ordered that the bill should be amend- 
 ed by striking out the submission (/). And where 
 a matter has not been put by the bill properly in 
 issue, to the prejudice of the infant, the court has 
 generally ordered the bill to be amended (m). 
 
 A like indulgence has been granted to a defen- jigwers™^"' °^ 
 dant when upon hearing a cause it has appeared 
 that he has not put in issue by his answer facts 391 
 
 which he ought to have put in issue, and which 
 must necessarily be in issue to enable the court to 
 determine the merits of the case, the defendant 
 being permitted to amend his answer by stating 
 those facts. This has formerly been done in the 
 exchequer, where a modus has been set up as a 
 defence to a bill for tithes ; and it appeared from 
 the evidence in the cause that there was probably 
 a good ground for opposing the plaintiff's claim, 
 though the defendant had mistaken it, and the 
 court permitted him to amend his answer {n) ; but [328] 
 this has been refused in other cases. Where an 
 answer has been prejudical to a defendant from a 
 mere mistake, upon evidence of the mistake an 
 amendment has been permitted (o). This indul- 
 gence has been extended, after much consideration, 
 beyond mere mistake, where by the answer an 
 important fact was imperfectly put in issue, and no 
 witness had been examined, the cause being heard 
 
 (/) 1 p. Wms. 428. (1) chequer, Easter, 1779. See also 
 
 (m) See p. 38; Napier v. Lady Filkin v. Hill, 4 Bro. P. C. 640, 
 
 Effingham, 3 P. Wm8. 401,403. Toinl. Ed. ; 2 Anstr. 443. 
 
 And see Bennet v. Lee, 2 Atk. 529. (o) Countess of Gainsborough v. 
 
 (n) Phillips V. Gwynne, Ex- Gifford, 2 P. Wms. 424. 
 
 (3) Franklin v. Beamish, supra.
 
 391 INCIDENTS TO PLEADINGS. [ChAP. IV. 
 
 on bill and answer {p)- In general, however, this 
 indulgence is confined to mere mistake or sur- 
 prise ((j) (1). A distinction has also been made 
 
 392 between the admission of a fact, and the admis- 
 
 {j)) Powell V. Hill, in Chan. The was affirmed, 19th March, 1735, 
 
 cause came first before the Master of MS. n. ; Countess of Gainsborough 
 
 the Rolls, who made an order, giving v. Gifford, (since reported 2 P. Wms. 
 
 liberty to the plaintiff to amend the 424,) cited as determined on several 
 
 bill, and to the defendant to amend precedents. But see Sorrell v. Car- 
 
 the answer, to which the plaintiff penter, 2 P. Wms. 482. 
 
 might reply and go to issue. On (q) 2 Bro. C. C. 619. See Chute 
 
 appeal to the Chancellor the order v. Lady Dacres, 2 Freem. 173- 
 
 (1) [Amendments will not be granted to enable a party to set up 
 the defence of usury or of the statute of limitations, if he has not 
 availed himself of the opportunity to interpose such defence in the first 
 instance. It seema, however, that where such defences are defectively 
 set forth, an amendment will be allowed to give the party the benefit of 
 the defence which he intended to present, but he will not be permitted 
 to put in a new or additional plea or answer. Beach v. Fulton Bank 
 on appeal, 3 Wendell's R. 573 ; S. C. 1 Paige's C. R. 429.] See pp. 
 385, 386, supra. 
 
 In matters of form or mistakes of dates, or verbal inaccuracies, 
 courts of equity are very indulgent in allowing amendments of answers. 
 But they are slow to allow amendments in material facts, or to change 
 essentially the grounds taken in the original answer. The whole 
 matter is in the discretion of. the court; but before the amendments to 
 the answer are allowed, the court should be satisfied that the reasons 
 assigned for the application are cogent and satisfactory ; that the mis- 
 takes to be corrected or the facts to be added, are made highly proba- 
 ble, if not certain ; that they are material to the merits of the case in 
 controversy ; that the party has not been guilty of gross negligence ; 
 and that the mistakes have been ascertained, and the new facts 
 have come to the knowledge of the party, since the original answer 
 was put in and sworn to. Wiggin v. Dorr, 3 Sumner's C. C. R. 410. 
 
 Where a party, by a slip, has lost the opportunity to set up a mere 
 technical or unconscientious defence, and comes to the court for a favor, 
 which it is necessary should be granted to enable him to set up such a 
 defence, the court of chancery will require him to do equity, as a con- 
 dition of granting the favor asked. Hartson v. Davenport, 2 Barb. Ch. 
 Reps. 77.
 
 Chap. IV.] incidents to pleadings. 392 
 
 sion of a consequence in law or in equity (r). 
 Where a defendant after putting in an answer dis- 
 covered a ground of defence to a bill of which he 
 was not before informed, a purchase by the person 
 under whom he claimed without notice of the 
 plaintiff's tide, which could only be used by way 
 of .defence, and could not be the ground of a bill 
 of review, the court allowed the answer to be taken [329] 
 off the file, and the new matter to be added, and 
 the answer re-sworn (s). Where a fact which 
 may be of advantage to a defendant has happened 
 subsequent to his answer, it cannot with propriety 
 be put in issue by amending his answer. If this 
 appears to the court on the hearing, the proper way 
 seems to be to order the cause to stand over till a 
 new bill in which the fact can be put in issue be 
 brought to a hearing with the original suit (t) ; and 
 a bill for this purpose seems to be in the nature of 
 a plea puis darrein continuance at the common 
 law (1). 
 
 Sometimes, upon hearing of a cause, it has ap- r^„^ti^;t"r"aL'd 
 peared that a matter properly in issue, or at least ?ion^afte7fc 
 stated in the proceedings, has not been proved '"° 
 against parties who have admitted it by their an- 
 swers, although not competent so to do for the 
 purpose of enabling the court to pronounce a de- 
 cree. In these cases the court has permitted the 393 
 proper steps to be taken to obtain the necessary 
 
 (r) See Pearce v. Grove, 3 Atk. and filing a supplemental answer 
 
 522 ; and jS. C. Ambl. 65, but very instead of amending and reswearing 
 
 differently stated. the original answer, see abov;», p 
 
 (s) Patterson v. Slaughter, Ambl. 386, note (ft). 
 292. As to amending an answer, («) i/aynev. Hayne.SCh. Rep. 19. , 
 
 (1) See supra, pp. 99, n., 75, n.
 
 393 INCIDENTS TO PLEADINGS. [CnAP. IV. 
 
 proof; and for this purpose has suffered interroga- 
 tories to be exhibited (u) ; and where the plaintiff 
 has neglected to file a necessary replication, has 
 allowed him to supply the defect (x). Thus, where 
 a bill was filed on behalf of creditors, for satisfac- 
 [330] tion out of real and personal estates devised to 
 trustees for that purpose, and, subject to that charge, 
 in strict settlement, and the answers of the tenant 
 for life, and of the first remainder-man in tail, who 
 was an infant, were not replied to, the court, on 
 hearing, directed that the plaintiff should be at 
 liberty to reply to those answers, and exhibit inter- 
 rogatories, r.nd prove their debts against those de- 
 fendants, as they had before proved them against 
 the trustees ; and reserved the consideration of the 
 directions necessary to be given upon such new 
 proof (2/).. 
 
 In most of these cases the indulgence given by 
 the court is allowed to the mistakes of parties, and 
 with a view to save expense. But when injury 
 may arise to others the indulgence has been more 
 rarely granted ; and so far as the pendency of a 
 suit can affect either the parties to it, or strangers, 
 matter brought into a bill by amendment will not 
 have relation to the time of filing the original bill, 
 but the suit will so far be considered as pendent 
 
 394 only from the time of the amendment (z), except 
 that where a bill seeks a discovery from a defen- 
 dant, and having obtained that discovery, the bill is 
 
 (m) See 2 P. Wms. 463; and see De Bernales,lRuss.R.30l ; Abrams 
 3 P..Wms. 289 ; Smith v. Althus, 11 v. Winshup, 1 Russ. R. 526. 
 Ves. 564; Willan v. Willan, 19 Ves. (ar) See above, p. 384. 
 * 590; 5'. C. Coop. R. 291 ; Swinford (y) Lambert v. Ashcroft, at the 
 
 V. Home, 5 Madd. 379; Moons v. Rolls, 18th Feb. 1779. 
 
 (z) 2 Atk. 218. 
 
 Relation of mat- 
 ters introduced 
 by amendment.
 
 Chap. IV.] incidents to pleadings. 394 
 
 amended by stating the result, it should seem that 
 the suit may, according to circumstances, be con- 
 sidered as pendent from the filing of the original bill 
 at least as to that defendant, and perhaps to the 
 other parties, if any, and to strangers also, so far 
 as the original bill may have stated matter which 
 might include in general terms the subject of the [331] 
 amendment. 
 
 Though in general with respect to the original [^J'ameic^el" 
 parties, and their interests, no amendment will be 
 permitted after the cause is at issue, and witnesses 
 have been examined, and publication passed {y) ; 
 yet a plaintiff has been permitted under such cir- 
 cumstances, to amend his bill by adding a prayer Exceptions. 
 omitted by mistake (z) (1). Even upon the hear- 
 ing, as already noticed {a), the court having the 
 whole case before it, and being embarrassed in its 
 decision by defects in the pleadings, has permitted 895 
 
 amendments both of bills {h) and answers (c), un- 
 
 (y) J/jon. Barn. 222 ; 2Anstr. 362. be remarked, that an amendment of 
 And see above, pp. 386, 387, and the bill will be permitted after a de- 
 note. It may be observed, that in murrer or a plea has been filed, but 
 such a case the plaintiff must gene- generally not after it has been set 
 rally apply to the court for liberty to down to be argued. Anon. Mos. 301 ; 
 withdraw his replication, as well as Vernon v. Cue, Dick. 358 ; 1 Ves. 
 to amend his bill. 1 Atk. 51 ; Mot- Jun. 448; Carleton v. L' Estrange, 1 
 teux V. Mackreth, 1 Ves. Jun. 142 ; Turn. R. 23. 
 
 1 Turn. R. 24 ; see above, cases cited, (6) See above pp. 67, 389, 390. 
 p. 67, note ; and p. 383, notes (j) and (c) See Countess of Gainsborough 
 
 (k). V. Gifford, 2 P. Wms. 424 ; 1 Cox R. 
 
 (z) Harding v. Cox, 3 Atk. 583. 159. See above, p. 390. (2) 
 
 (a) Pp. 389-391. And here it may 
 
 (1) The court may, for the purpose of avoiding unnecessary delays, 
 entertain a motion to amend a bill in equity, at the same time that excep- 
 tions thereto are filed, and may require the defendants to answer the 
 amended matter and the exceptions together. Kellridge v. The 
 ClaremorU Bank, 3 Story's C. C. Reps. 59. 
 
 (2) VViien a fact occurs during the pendency of a suit in chancery.
 
 895 INCIDENTS TO PLEADINGS. [ChAP. IV. 
 
 frZte?o'rbm der very special circumstances. Where new mat- 
 bii/of"that°na- tcr has been discovered by either plaintiff or de- 
 a defect. fcttdant beforc a decree has been pronounced de- 
 
 ciding on the rights of the parties, a supplemental 
 or cross-bill has been permitted, to bring such mat- 
 ter before the court to answer the purposes of jus- 
 tice, instead of allowing an amendment of a bill 
 [332] or answer, where the nature of the matter discov- 
 ered would admit of its being so brought before 
 the court ; and after a decree, upon a similar dis- 
 covery, a bill of review, or a bill in nature of a bill 
 of review, has been allowed for the same purpose, 
 both those forms of proceeding being in their na- 
 ture similar to amendnients of bills or answers, cal- 
 culated for the same purposes, and generally ad- 
 
 mit^neVmau^r mittod uudcr similar restrictions (1). It may how- 
 to be put in is- , i i -i • i i • 
 
 a«e. ever happen that by the mistake, or negligence, or 
 
 ignorance of parties, their rights may be so preju- 
 
 which it is deemed material to have considered in deciding the case, 
 leave must be obtained by the complainant, if it be on his part, to with- 
 draw his traverse, and amend his bill, or file a supplemental bill ; or by 
 the defendant, if on his part, to file a cross bill, in order to bring the new 
 matter within the issue, that testimony may be taken on both sides if 
 desired. Blaisdell v. Stevens et al, 16 Vermont Rep. 186. 
 
 A complainant will not be allowed to amend his bill so as to make a 
 new case, after the proofs in the cause have been taken and closed 
 Dodd V. Astor, 2 Barb. Cii. R. 395. 
 
 Where no occurrence has taken place to change the rights of the 
 parties subsequent to the commencement of the suit, the complainant 
 cannot, after the cause is at issue, file a supplemental bill for the mere 
 purpose of putting in issue new matters which might have been intro- 
 » duced into the original bill by way of amendment, although the new 
 
 facts were not known to the complainant until after the causi was at 
 issue on the original bill. The proper course for the comp'ainarit, 
 where the proofs have not yet been taken, is to apply for leave to with- 
 draw his replication and amend. Diasv. Merle, 4 Paige's Ch. R. 269. 
 
 (1) See supra, pp. 99, n., 75, n., 389, n.
 
 Chap. IV.] incidents to pleadings. 395 
 
 diced by their pleadings that the court cannot per- 
 mit important matter to be put in issue by any new 
 proceeding without so much hazard of inconveni- 
 ence, that it may be better that the individual 
 should suffer an injury than that the administration 
 of justice should be endangered by allowing such 
 proceeding.
 
 397 
 
 NOTE ON PARTIES * 
 
 COMPRISING THE DECISIONS FROM THE BEGINNING OF THE 
 YEAR 1826. 
 
 The decisions on the subject of Parties which have been 
 reported from the beginning of the year 1826 down to the 
 present time are very numerous. The editor conceives that 
 be shall most consult the convenience of the profession, by ar- 
 ranging them into classes and subdivisions under the following 
 titlest : — 
 
 I. Of Parties generally. 
 II. Of Parties out of the Jurisdiction. 
 
 III. Of Misjoinder of Parties as Co-plaintiffs. 
 
 IV. Of Parties to Suits of a Public Nature. 
 
 V. Of Parties to Suits for an Account and to Admi- 
 nistration Suits. 
 VI. Of Parties to Suits pertaining to the relation 
 
 of Assignor and Assignee. 
 VII. Of Parties to Suits affecting Persons hating a 
 
 Community of Interest. 
 VIII. Of Parties to CopyrigJit Suits. 
 IX. Of Parties to Suits pertaining to the relation 
 
 OF Debtor and Creditor. 
 X. Of Parties to Suits in respect of Actual or Con- 
 structive Fraud. 
 XI. Of Parties to Suits pertaining to the relation 
 
 of Husband and Wife. 
 XII. Of Parties to Suits for Legacies. 
 
 XIII. Of Parties to Suits pertaining to the relation 
 
 of Mortgagor and Mortgagee. 
 
 XIV. Of Parties to Partnership Suits. 
 
 * The text on Parties occurs supra, pp. 190 — 208, and 325 — 327. (S«e 
 also Calvert on Parties in Equity ; Edwards on do. ; Story's Eq. Pi. C. IV. 
 
 + The titles, after the first four, are arranged in the alphabetical order of 
 the leading words therein.
 
 397 NOTE ON PARTIES. [S. I. 
 
 XV. Of Parties to Suits by or against Tenants in Com- 
 mon OP Real or Personal Estate. 
 XVI. Of Parties to TitJie Slits. 
 XVII. Of Parties to Suits pertaining to the relation 
 of Trustee and Cestui Que Trust. 
 XVIII. Of Parties to Suits between Vendor and Purchaser. 
 
 oqo I. Parties, generally*(1). 
 
 L Pabtiks, 
 oKNER^i^ ^ " A bill may be demurred to for want of parties, if any part 
 
 of the relief prayed is such that it cannot be granted in the 
 
 absence of a person who is not made a part to the bill." 
 
 Ledbetter v. Long, 4 My. & C. 286. 
 
 * As to making a decree, saving the rights of absent parties, see the 49th 
 order of August, 1841, and practice cases thereon stated in Miller's Orders, 
 p. 159. 
 
 (1) General rule. It has been found difficult, and it may be imprac- 
 ticable, to adopt one concise general rule comprehending every case. 
 Perhaps the nearest approach to it, might be this : Those nominally, in 
 law interested ia the subject and object of the suit, may, those mate- 
 rially, should, and those essential to a decree, must, be made parties. 
 
 Though the first class, may, they ought not when the real parties in 
 interest can be brought before the court ; those who should, need not, 
 when they cannot from absence, number or other inconvenience, be 
 brought in, and a decree can be made without them ; but those, without 
 whom no decree can be made as between the parties before the court, 
 are indetpensable. 
 
 1. Those who may. The multiplication of parties having no interest 
 at stake, should be avoided as tending to expense and embarrassment. 
 There may be proper but not necessary parties, — such as assignor abso- 
 lute of a judgment, {Bruen v. Crane et al. 1 Greenes C. R. 348 347 ;) 
 mortgagor who has parted with liis equity of redemption, or all interest 
 inthe hnd, (Vreeland V. Loubat. /Jem, 104, 348. Chester v. King. Id. 
 405). But legatees who have assigned their interest, need not and 
 ought not to be made parties to bill by assignee for the legacies ; their 
 whole interest having vested by the assignment. The ground for making 
 assignor of a common law right or chose in action party, is that he has a 
 distinct right that cannot be assigned and cannot be extinguished but 
 by a decree. But where the reason does not apply, the rule ceases. 
 {King V. Berry's Executors, 2 Green's C. R., N. J., 51—54, 44.) 
 
 In New-York the suit is brought in name of real parties in interest^
 
 S. I.] NOTE ON PARTIES. 398 
 
 Where a suit is instituted to set aside a decree in a prior General admia- 
 
 r istrator, laasult 
 
 as the assignee of a chose in action is not permitted to file a bill in the 
 name of a mere nominal party. (Rogers et al. v. The Tradesmen's 
 Ins. Co. el al, 6 Paige's R. 598, 683 ; Field v. Maghee, 5 Paige's R. 
 539.) The real persons in interest must be parties, except in certain 
 cases where complainant represents the rights of those for whom the 
 suit is brought both legally and equitably, as executors, trustees, or as- 
 signees under insolvent acts ; and where complainant after suit brought 
 assigns his interest under the insolvent laws, the suit abates or becomes 
 so defective that the suit cannot proceed against defendant if he object' 
 or if complainant has so assigned his property and obtained a discharge 
 under the act, the assignee must be party before the suit can proceed. 
 If defendant's interest in the subject of the suit becomes vested in others 
 pendente lite, without an actual abatement of the suit, complainant is 
 not bound to, but may, make the assignee a party. For the assignee 
 being a mere voluntary purcliaser pendente lite, cannot defeat or delay 
 complainant ; if he could the suit by successive assignmemts would be 
 interminable. But where the assignment is by operation of laws as un- 
 der the bankrupt or insolvent laws, he has a right to be heard and must 
 be mwde a party. (See further Sedgwick v. Cleveland, 7 Paige's R. 
 289, 290-1, 287, and Mills v. Hoag, Idem, 21, 20, 18.) 
 
 No one wed be (1 Gall. 382-3,) nor, in general, shouldhe, (2 Green's 
 C. R. 122-3, 120,) a party against whom if brought to a hearing, no 
 decree can be had. This, it has been said, is a general rule operating 
 as an exception to the general rule that all interested should be par- 
 ties. Therefore on a bill by creditors or purchasers against the as- 
 signee of a bankrupt, it seems now settled that the bankrupt himself 
 need not be made a party, though it was formerly otherwise. There- 
 fore when bill is brought to charge executors of deceased partner having 
 assets with a joint debt which, at law, survived against surviving part- 
 ners who were certificated insolvents, these need not be made parties. 
 In cases where suit is against executors on other grounds, it seems 
 clear that the rule that all surviving co-obligors should be parties, in 
 general, prevails. Shall it be permitted to prevail where no relief can 
 be given against the co-obligors ? Shall a certificated bankrupt, who 
 is a surviving partner, be joined with the executors, although no remedy 
 can be effectually had in the suit against him? No case is discovered 
 (say the court) where relief has been sought against the representa- 
 tives of ^ deceased partner on the ground of bankruptcy of the sur- 
 viving partner, that the bankrupt himself or his assignees have been 
 made parties. The bill, if the reports are to be relied on, has been 
 uniformly against the representativee alone. {Reimsdyk v. Kane et al. 
 1 Gallison's R. 383-4, 371.) So, on bill for surplus or residuum after 
 payment of debts, legacies and prior incumbrances, those claimants
 
 398 NOTE ON PARTIES. [S. I. 
 
 to set aside a de- suit a peison who took a benefit under such prior suit is not 
 
 cree in a prior ' r 
 
 suit. 
 
 need not be parties ; but all interested even remotely in the residuum, 
 must. (Vanderpool v. DevenporCs Ex^r, 2 Green's C. R. 122-3, 120.) 
 
 2. Those who should. The rule as stated and illustrated in King v. 
 Berry's Ex^rs, 2 Green's C. R. 52, 53, 44, is, that all persons legally 
 or beneficially interested in the subject m;^tter and result of a suit 
 must be parlies. And in other cases, the. rule is stated that all mate- 
 rially interested, must be parties; (Caldwell v. Taggarl et al., 4 
 Peters, 190 ; The Mechanics^ Bank of Alexandria v. Selon, 1 Id. 306.;) 
 and until brought in, no final decree, (Marshall v. Beverley. 5 Wheat. 
 313, 4 Cond. R. 660 ;) nor interlocutory which in great measure decides 
 the merits, can pass. (Conn v. Penn, 5 Wheat. 424 ; 4 Cond, R. 716.) 
 In Williams v. Russell, 19 Pick. R. (Mass.) 165, 162, the court say, 
 the rule as well settled is, that all persons interested in the subject 
 matter of a suit are to be made parties, but to this rule, as Lord Redes- 
 dale observes, there are many exceptions. In Wiser v. Blackly, 1 
 Johns. C. R. 438, Chancellor Kent observed ; " the general rule is, 
 you must have before the court all whose interests the decree may 
 touch because they are concerned to resist the demand and to prevent 
 the fund from being exhausted by collusion." This is sustained by 
 English authority and accords with the rule of Calvert on Parties in 
 Equity, 11 : " All persons having an interest in the object of the suit 
 ought to be made parties." (Smith v. The Trenton Delaivare Falls Co., 
 3 Green's C. R. 508, 505 ;) another rule is that no person is necessa- 
 rily to be made a party unless his interest may be affected by the decree. 
 To reconcile the rules we must construe the first, as extending only 
 to persons interested in the event of the suit, and not to persons inte- 
 rested only in the question involved in the issue. There is, however, 
 another rule, that where a defendant is interested in having another 
 made a party defendant, the plaintiff is obliged to make him a party, so 
 that the principal defendant, may have his assistance in the defence. 
 This rule is an exception to the second rule mentioned, and must be 
 understood with this limitation, that a defendant is not entitled to the 
 assistance of a mere witness, for if one be made a party against whom 
 the plaintiff can have no decree, but who may be examined as a wit- 
 ness, the defendant may demur. A party to entitle himself to the 
 assistance of a third party witliin the meaning of the rule, must make 
 it appear that he has a right to claim through or rely on the equitable 
 title of the third party. (Ibid., 19 Pick. R. 165, 162.) 
 
 The general rule therefore is, that all are necessary parties having 
 an interest in the subject matter which may be affected by the decree. 
 The rule is founded in the great principle of preventing future litiga- 
 tion and taking away multiplicity of suits by adjudicating upon 
 the rights of all such parties upon whom a decree may or ought to
 
 S. I.] NOTE ON PARTIES. 398 
 
 sufficiently represented by an administrator limited to the pur- ' Pasties oen- 
 poses of the subsequent suit. Davis v. Chanter, 14 Sim. ^12. 
 
 operate. (See Hodges v. Saunders, 17 Pick. R. 473, 470 ; Vanderpool 
 V, Davenport's Ex'rs, 2 Green's C. R. 122-3, 120 ; Dehart v. Dehart, 
 Idem. 472-3, 471 ; Mandecille v. Riggs, 2 Peters, 487-8, 482.) Hence, 
 all interested, in the residuum, as former observed. ( Vanderpool v. Da- 
 venport'' s ExWs, supra,) ^.s wl)ere a resi'Juary legatee sues for settle- 
 ment and distribution, all the residuary legatees or their representatives 
 must be parties. It grows out of the great principle above slated, a 
 principle of great convenience in the administration of justice, still as 
 applicable to general cases it is not inflexible. It may be dispensed 
 where impracticable or very inconvenient to enforce it. But when 
 complainant seeks a final settlement and distribution of the estate, it is 
 important that one investigation should conclude all who have an inte- 
 rest, and as those not parties are not bound by the decree, there should 
 be no dispensation of the rule except for necessary cause. Hence 
 though one of the residuary legatees died insolvent, and no administra- 
 tion taken, yet the court held there was no necessity of dispensing the 
 rule. {Dehart v. Dehart, supra.) So, all liable to contribution should 
 when practicable be brought in, so as tiieir equities and the rights of 
 plaintiff may be adjusted. There are exceptions, it is true, to the rule, 
 but they are founded in special considerations ; as where a decree of 
 contribution would be useless or the proceeding defeat the jurisdiction 
 of the court, and the parties are not indispensable to a decree, or where 
 the convenient administration of justice forbids it in the particuLir case. 
 (MaridecUle v. Riggs, supra.) But according to the general rule, that 
 ail interested in the subject matter of a suit in equity, whether directly 
 and immediately, or incidentally and remotely, are to be made parties 
 so that complete justice may be done between all parties interested in 
 one suit. {Crease et al. v. Babcock et al., 10 Metcalf 's R. (Mass.) 
 631-2.) Where there is a joint or joint and general contract, each of 
 the debtors must be brought before the court. The reasons assigned 
 are that the debtors are entitled to the assistance of each other in taking 
 the account and to mutual contribution upon excess of payment beyond 
 their respective shares. But where the reasons cease, the rule 
 ceases, alW therefore if the demand be admitted, and there can be no 
 effectual contribution from the other parties, it is not allowed to pre- 
 vail ; and in cases of joint and several contracts, the rule itself has not 
 stood without contradiction. The rule has been relaxed where the 
 parties before the court were the only solvent persons and admitted 
 the debt ; where tlie absent party was beyond the process of the court, 
 and where he stood in tlie situation of a mere surety, though it might 
 be otherwise if he were a co-surety. (Reimsdyk v. Kane, 1 Gall. R. 
 
 33
 
 398 NOTE ON PARTIES. [S. I. 
 
 I. Parties gen- A residuary legatee is a necessary party to a suit by the 
 V.i^S?~^-^ personal representative of the surviving executor of a testator, 
 tee^n^aTui't'by instituted for the purposB of recovering a part of the assets 
 the rcpresenta- aHerred to have been possessed by the executor who died first. 
 
 tive of one cxe- t> r J 
 
 cutornpninsttho AduTUs v. Barry, 2 Coll. 285. 
 
 representative "^ 
 
 of another exe- • — ■ — ■ — 
 
 cutor. 
 
 383-4, 371.), But the rule that all in interest must be before the court 
 is rather a rule of convenience, and will not be followed when llie legal 
 right is so entirely technical and unimportant as to warrant the court 
 • in passing it by where its observance would be attended with great in- 
 
 convenience and answer no single beneficial purpose. Hence, a mort- 
 gagor who has assigned his interest, but not under seal, and retains the 
 legal interest, need not be a party to bill of foreclosure by assignee. But 
 assignor of judgments and bonds must be parties, they having a legal 
 right which no assignment can transfer. Where choses in action are 
 strictly of legal character the propriety of the rule is obvious ; but 
 even in such cases is not strictly enforced where the legal ri;iht is so 
 entirely technical and unimportant as above mentioned. Packer v. 
 Stevens, 2 Green's C. R. 58, 69, 56. But see in New-York cases 
 quoted under the first branch of the rule, sttpra.) 
 
 There is a current of authority adopting more or less a general prin- 
 ciple of exception, by which the rule that all interested must be parties, 
 vields when justice requires it in the instance of either of plaintiffs or 
 defendants. {Stevenson el al. and Peril et al. v. Austin el al. 3 Metcalf^s 
 R. 474, 480 et seq.) The rule is subject to the discretion of the 
 court. It was made and may be modified to promote justice. (^Elmen- 
 dorff v. Taylor,, 10 Wheat. 152.) The rule though general is not uni- 
 versal, but has its exceptions in cases of creditors, or legatees of per- 
 sonal estate, whose interest is supposed to be defended by the personal 
 representative, or where parties are so numerous as would cause great 
 inconvenience, in bringing them in, or where one tiles a bill on behalf 
 of himself and others. In applying the general rule, if one of several 
 joint mortgagees dies, his representatives being interested in the object 
 of the suit, must be parties. The right to sue or defend does not rest 
 alone in the surviving obligee. (Smith v. The Trenton and Delaware 
 Falls Co., 3 Green's C. R. 508, 505.) The rule is not universally 
 applicable to cases, in the courtsof the United States. (See Elmendorff 
 V. Taylor, supra, Russell v. Clarke's Ex^rs, 7 Cranch, 69-97, and Vat- 
 tier v. Hinde, 7 Peters, 263-4, 252, ante p. 34 n.) Hence, the Circuit 
 Court of United States will dispense with the joinder of a non-citizen, if 
 without prejudice to his rights the court can decide the merits as be- 
 tween those present. (Ibid, and Harrison v. Urann, 1 Story's R. 66, 
 64.) 
 
 The rule is modified or partially dispensed as justice and the exi->
 
 8. 1.] 
 
 NOTE ON PARTIES. 398 
 
 A tenant for life cannot sustain a suit for a commission to '• Parties qen- 
 
 ER*LLV. 
 
 ascertain boundaries, without making the remaindermen par- V^X'^z-^^ta/ 
 ties to the suit ; for in such case all who are interested in the taTsuit^TM- 
 property must be before the court. Ragley v. Best, 1 Russ. JF^'*'"^ bounda- 
 & My. 659. 
 
 gency of the case requires. As where they are numerous and great 
 delay and expense would result from attempting ta make all parties, 
 and the court can d''cide between those before them. Thus where 100 
 partners each executed a mortgage to secure the partnership debts a 
 foreclosure of each without making the others parties was allowed. It 
 is a proceeding in rem upon a separate mortgage made on a separate , 
 
 liability. (Boisgerardetal.v. Wall, \ Sme!es and Marshalls,M\ss. C. 
 R., 426-7, 404. So where the creditors of an insolvent were nume- 
 rous, some residing out of the commonwealth, and residence of others 
 unknown, it was held sufficient to make parties to bill concerning the 
 assets, the assignees of the insolvent who had assigned his property for 
 the payments of debts, the assignees alone having a right to claim the 
 property, having the legal title, and who represent the interests of all 
 the creditors interested. Stevenson et al. and Peril elal. v. Austin et 
 al., 3 Metcalf R. 474, 480, et seq. In this case the assignees and 
 assignor were made parlies defendant by certain claimants of an equi- 
 table fund assigned, and it was held sufficient. Ibid.) So, a few credi- 
 tors of a deceased debtor may sne his representatives for account of 
 assets and payment of the demands of the creditors. So where nume- 
 rous persons have a common interest in a particular fund, one or more 
 may sue for the benelit of the whole, for the purpose of obtaining adis- , 
 
 Iribution of the" fund. In such cases all the persons interested may 
 come in and prove their claims before the Master, and entitle themselves 
 to share in the benefit of the decree. Indeed these are really and sub- 
 stantially, thonyh not nominally parties. Crease et al. v. Babcock 
 et al., Hi Metcalf Rep. Mass. 531-2. This doctrine was fully con- 
 sidered and the reason of the rule regarded as peculiarly applicable to 
 that case. It was there held that under the Revised Statutes of Mass. 
 which makes stockiiolders of a bank liable in their individual capaci- 
 ties in proportion to the stock they may respectively hold at tlie disso- 
 lution of the charter, that the bill-holders cannot severally maintain a 
 bill in equity against the stockholders to compel payment and redemp- 
 tion of the unpaid bills held by them respectively, but that all of them 
 must join in one bill, or one or more of them file a bill for the benefit of 
 all against all the stockholders. Ibid. All who are entitled to claim must 
 Bue as plaintiSs, or be allowed to com? in and prove tlreir claims before 
 the m.tstor on a suit brought by some for the benefit of themselves and 
 others ; because, though their claims are several the fund liable for
 
 398 NOTE ON PARTIES., [S. I. 
 
 I, Parties gen- Wliere a suit is instituted for the sale of real property, in 
 
 EBALLY. _ .* 
 
 V^^^V'^w/ which there is an estate in fee defeasible by an executory de- 
 ^see^'irr^a suit "^^^^» ^^^ inheritance is not sufficiently represented by the per- 
 foraeale. son who has such defeasible estate, but the persons claiming 
 
 under the executory devise must also be parties. Goodess v. 
 
 Williams, 2 Y. & C. Ch. C. 595. 
 
 them is limited and may be insufficient to pay the whole ; and then 
 they must divide the fund in propartion to the amount of their respec- 
 tive claims as holders of bill.^, having an equal and common right 
 to the fund. And so in like m-inner the court thought, all who are liable 
 must be made defendants, for although they are severally liable and in 
 different proportions it is a liability to contribute to a common fund for 
 the payment of certain claims of the plaintiffs, and if the whole amount 
 for which all the stockholders are liable is not required to satisfy the 
 full claims of the bill-holders, the defendants will be liable to contribute 
 to the common fund such proportion of the amounts for which they 
 may be held liable as will be sufficient to satisfy the claims of bill-hol- 
 ders as actually established by the result of the suit. In no other way can 
 the just proportion be established which the plaintiffs are respectively 
 to recover if the fund is insufficient to satisfy tliem, or the proportion 
 which the defendants are to contribute, in case the fund is more than 
 sufficient to satisfy the claims upon it. Crense et aJ.v. Babcock et al., 
 10 Metcalf R. 632, et spq. 525-recognised and re-affirmed in Grew v. 
 Breed et al. Id. bib, 569. 
 
 See further exceptions to the* general rule, 1 Cond. R. 607 n. and the 
 case of West v. Randall et al. 2 Mason R. 181, in which the exceptions 
 are stated : as where a person is without the jurisdiction, or personal 
 representative is necessary, but right of representation in dispute where 
 discovery of necessary parties is sought, the court will if possible decree 
 between the parties before it ; or where parties are numerous, the ques- 
 tion is of general interest, and a few may sue for the whole ; or the par- 
 ties form part of a voluntary association, and may be fairly supposed to 
 represent the rights and interests of the whole. Here ii the bill purports 
 for plaintiffs and all others interested, the plea for want of parties will 
 be repelled. But the court will permit the others to come in. In this 
 class are suits by part of a crew of a privateer against prize agents for 
 account and proportion of prize. The bill, if for themselves and in 
 behalf of all the rest of the crew, will be sustained. (Ibid.) 
 
 Under the operation of the general rule, the real persons in interest 
 should be the parties. (See under the first branch of the general rule 
 as defined, supra.) So the parties should be interested ; hence a mere 
 witness is not a proper pariy. But making officers and agents of a cor- 
 poration parties defendants is an exception to the general rulci that a
 
 S. I.] 
 
 NOTE ON PARTIES. 398 
 
 The cou-rt will not declare a powei- of appointment well ^- ^^rIHy.*'^'' 
 executed in the absence of the party interested in default of V.X'V"^-^ 
 appointment. Grace v. Torrington, 1 Coll. Ch. C. 3. ed in'de'fauitf of 
 
 appoiDtiuent. 
 
 mere witness, having no personal interest in the subject of the suit, can- 
 not be made a party. But it is the settled law in this country andEng- 
 land, that in a bill against a corporation for relief, its officers and a|2:ent8 
 who are cognizant of the facts to which it relates, may be made defen- 
 dants for the purpose of obtaining an answer on oath, which cannot be 
 obtained in any other way ; but where the wliole relief claimed is 
 against others, and not the corporation, and tlieir officers are made par- 
 ties, for instance, to ascertain when certain stocks had been transferred 
 by that corporation, here, being merely witnesses, they do not come 
 within the exception to the general rule. But in cases that come 
 within such exception, the bill need not aver that the discovery sought 
 is confined tp such as are so made parties. It is sufficient if it appear 
 the facts charged are material to the relief sought against the corpora- 
 tion, and are known to the officer or agent, especially where the disco- 
 very relates to transactions with such officer or agent. {Many v. The 
 Beekman Iron Co. et al.,9 Paige's R. 193-4, 188.) 
 
 All interested should be parties, but all as we have seen, are not in- 
 dispensable, where a decree on merits can be made as between those 
 before the court. It is not essential, as at law, that parties litigant 
 should be on opposite sides. A decree may be made, as between co- 
 defendants where they setup conflicting rights. {Piatt v. Oliver and 
 Williams, 3 McLean's R. 31-2, 27. 
 
 4. Those who must be made parties. All who should, must be, as 
 we have above seen, if they conveniently can be, and justice does not 
 require a dispensation of them as parties. For although if a decree on 
 the merits can be made as between those present, it will be where others 
 are out of reach of process, numerous, or within the peculiar circum- 
 stances qualifying the general rule, yet otherwise they must be brought 
 jHjfor then the principle of ending litigation demands it. A fortiori, if no 
 decree can be made without them, they must be made parties. The 
 proper course where there is a want of necessary parties, is to order 
 the cause to stand over to enable complainant to bring the necessary 
 parties before the court; or the bill should be dismis.«ed without preju- 
 dice, and that his right to bring a new suit, making all proper persons 
 parties, will not be barred by tlie decree. (Miller v. McCan, 7 Paige 
 R. 457, 451 ; Van Epps v. Van Deusen, 4 Paige, 64.) 
 
 A bill may be dismisR-ed if plaintiff when called on to make proper 
 parties refuses or unreasonably delays : but it must be on demurrer, plea 
 or answer pointing out the persons whom defendant insists ought to be 
 parties. (Greenleafv. Queen, 1 Peters, 149.) 
 
 To remove impediments or prevent failure in the ordinary adminis-
 
 398 NOTE ON PARTIES. [S. I. 
 
 ^ ^'eb»u!y.*"''*" '^^ ^^'^' claiming an estate, an alleged tenant by the cour- 
 tesy is a necessary party. Parker v. Carter, 4 Hare, 406. 
 
 Tenant by tho 
 courtesy. 
 
 tration of justice in favor of the constitutional right of redress of those 
 within its jurisdiction, legislatures of some of our States, have author- 
 ized, in cases of absentees or unknown owners, who are indispensable 
 or necessary parties, publication of an order for them to appear, and on 
 default allowed the bill to be taken as confessed against them, and a decree 
 to pass under certain safeguards for the protection of their rights and 
 interests. In England without similar legislation, such absentees as are 
 known aie named as parties in the bill, and may come in ; absence is 
 charged in the bill, and the court proceeds against them, and disposes 
 the property if it is in t'le power of the other parties. (See p. 34 n. and 
 authorities.) In New-York, besides such publication as in ordinary 
 cases, in case of absence, the bill in partition must state the rights and 
 interests of all parties in the premises, so far as known to complainant 
 and if not fully known, then according to his information and belief. 
 And if the share or interest of any party is uncertain or contingent, or 
 if the ownership of the inheritance depends upon an executory devise, or 
 the remainder is contingent, so that the parties who may be ultimately 
 entitled to the same cannot be named: the complainant should set forth 
 the nature of such contingent interest, so that the court may ascertain 
 and protect the rights of such unknown or contingent owners. And 
 whatever complainant is bound to state in his bill, the defendants may 
 be required to admit or deny by their answers. (See further. Van 
 Cortland v. Beekman et al, 6 Paige R. 495-6, 492.) 
 
 In Ohio, partition proceediniis are considered as analogous to those 
 in rem, and the publication of notice by advertisement as required by 
 statute, is sufficient to apprize and to bind defendant's interest. (PillS' 
 bury et al v. Dvgan etal, 9 Ohio R. 117, 120. 
 
 Our judiciary has struggled to bend the rule of parties to a principle 
 of justice, which, as above mentioned, has grown into a principle of 
 exception to the rigid exception of the rule, according to Grisuold v. 
 Jackson, 2 Edw. C. R. 461 ; affirmed in erro'r, 4 Hill's R. 622, there 
 are many cases where a person, though not a nominal party, is con- 
 cluded by the decree, because he has in fact taken the management of 
 the cause, or when he has notice of its pending and a chance to litigate 
 but neglects to do so. As where party holds the mere equitable in- 
 terest — an assignee or ccs/i.j qne irws/, or v\ 1 ere he is a guarantor or 
 indemnitor of the party against the consequences of the suit. Id. 530, 
 et seq. But a mere surety is not bound by decree between his prin- 
 cipal and the creditor, though the suit was conducted exclusively by 
 the surety as agent of the principal. Secus, if surety voluntarily came 
 in, and litigated as such in the name of his principal, with assent of 
 the creditor. Id. 622.
 
 DICTION. 
 
 S. I. II.] NOTE ON PARTIES. 398 
 
 Where tlie object of a bill is to restrain proceedings against '• ^^"^1^°""* 
 the sheriff, it is not improper to make him a party. Farquhar- ^^-•'V^fc->' 
 
 ._„ T>', 7 n T> 1 Sheriff, in a suit 
 
 SOnv. Flicker, 2 KuSS. 81. to restrain pro- 
 
 If a person who is not a party to an action is made a party ^ee^ mgs againet 
 to a bill of discovery in aid of the defence to the action, he jyto?n"cUon"o 
 may demur, although the bill shows that he may have a bene- '^^ich^I'^bm ^ 
 fit from the action. Irving v. Thompson, 9 Sim. 17; Kerr v discovery is filed. 
 Rew, decided by the L. C. 10 Sim. '370. 
 
 Where a bill is filed by a landlord to restrain an ejectment, the ^'^"restrain *an 
 tenant must be made a party, unless the landlord has been ad- ejectment, 
 mitted to defend the action. Pool, v. MarsJi, 8 Sim. 528. 
 
 If there are two plaintiffs in an action of ejectment, it is ne- ^^^ ^l^ P]gJ,°; 
 cessary or proper that both of them be plaintiffs to a bill to pre- |^''a\iiMo"^re' 
 
 vent the settinfj up of outstandino: terms ; because, if one of vent the setting 
 o t a ' ' up of a term. 
 
 them is made a defendant, the power of the court overthe ac- 
 tion is thereby abridged. BaJcer v. Harwood, 7 Sim. 373. . 
 
 II. Parties out of the Jurisdiction (1). ii. Parties ottt 
 
 OF THE JdKIS- 
 
 It is not enough to state that persons, who in respect of in- 
 
 The general rule, however, requires the actual or cnnstructive pre- 
 sence of all interested, as the condition of a decree affecting their in- 
 terests, as stated in note, p. 34, supra. The principle applies to all 
 courts of equity, that no court can, without sucii presence, adjudicate 
 directly upon a person's right. (See case of Mallow v. Hitide, 12 
 Wheat. 193, in note, p. 34.) The principle is founded on natural jus- 
 tice, and is fortified directly or in analogy by declarations of rights and 
 constitutional guarantees. No man can be condemned unheard, nor 
 deprived of life, liberty, or property, without due process of law. Even 
 the right of eminent domain cannot be enforced without such process 
 and just compensation. 
 
 (1) See notes to pp. 398, 34. 
 
 In partnership cases where bill is filed for recovery of a debt out of 
 deceased partner's estate, the surviving partner's are necessary and 
 proper parties, for they have an interest in taking the accounts- 
 Vose v. Philbronk, 3 Story R. 346-7. But if the otl)er partners are 
 out of the jurisdiction, it is in the sound discretion of the court to 
 dispense or to insist on tiieir being parties, so as to prevent injustice to 
 the absent partners. Ibid. 
 
 The court (Circuit Court of the United States,) must have jurisdic- 
 tion between each of the plaintiffs and defendants, and if one of the 
 defendants do not live in the ttate whore the suit is brought, the com-
 
 399 NOTE ON PARTIES. [S. II. IIL 
 
 "V^THrjuR^r ^^^^^^ ^'■^ necessary parties, are out of the jurisdiction : the 
 bill mus't go on to pray process against them when they shall 
 come within the jurisdiction. The reason for this is, that they 
 may have an opportunity of appearing and of taking what, 
 course they may deem most for their advantage. Munoz v. 
 De Tastet, 1 Beav. 109, note. Brooks y. Burt, 1 Beav. 106. 
 
 •entativl '^^^'^*" Where a bill is filed for the general administration of a tes- 
 tator's estate, it is necessary to have a personal representative 
 of the testator before the court ; that is, one who is not only 
 made a party to the bill, but is also within the jurisdiction of 
 the court ; and, therefore, where the executor is out of the 
 jurisdiction, administration must be taken out for the purpose 
 of the suit, although the person. who so takes out administra- 
 tion is a mere nominee of the plaintiff. Lowry v. Fulton^ 9 
 Sim. 104. 
 
 Ctttuisqice trust. Where a trust fund is to be administered under the direction 
 of the court, the general rule requiring the cesluis que trust to 
 be parties is applicable to foreign trustees and cestuis que trust 
 residing out of the jurisdiction, unless a special case of diffi- 
 culty or inconvenience in the application of the rule be shown 
 Weatherhy v. St. Giorgio, 2 Hare, 624. 
 
 in. MiSJOINDEB TTT -HT -n >-i -n. /,\ 
 
 OF Parties as lU. MISJOINDER OP r ARTIES AS Co-PlAINTIPFS (1). 
 
 CO-PtAINTlFFS. 
 
 If co-plaintiffs actually have or may have conflicting interests 
 
 plainants being citizens of another state, such defendant may, by volun- 
 tary answer, disclaim any interest, and the bill as to him may be dis- 
 missed. Where the reason for not making a party is want of jurisdic- 
 tion, the court will retain the case and decree as between parties before 
 them, if they can do so without ailecting the interests of those who 
 are without the jurisdiction, i'lie bill should slate the citizenship of 
 those in another state, and therefore not within the jurisdiction as a 
 reason for not making them parties, and the court will decree as above. 
 Hinde et al. v. Vattier el al. 1 McLean's R. 114, 115, 110 ; Vattier v 
 Hinde, 7 Peters 263-4, 262 ; see also Russell v. Clark^s Executors, 7 
 Cranch's R. 69-97; 2 Cond. R. 426-7. Harrison v. Urann, 1 Story's 
 R. 66, 64. 
 
 (1) Where two of tlie coin plainants wholly failed to show any right 
 to join other complainants in filing the bill, this upon demurrer to the 
 whole bill, was held a fatal objection, and on appeal the decretal order 
 overruling the demurrer was reversed with costs, and demurrer allowed 
 with leave to plaintiff to amend by striking out the objectionable
 
 S. III. ] NOTE ON PARTIES. 39^ 
 
 in regard to the object of the suit, or if any or either of them "J^ p^RxTElTf 
 have no interest in the subject-matter of the suit, there is a mis- co-PtAiNTiFPi 
 joinder. But to be free from the objection of misjoinder, it is 
 not necessary that co-plaintiffs should have an iflentity of in- 
 terest. 
 
 names, &c. Bias et al. v. Bouchard, Ex., and U. S., 10 Paige R. 
 464-5, 445. 
 
 Misjoinder of parties complainant must be objected to by demurrer 
 or in the answer. It is too late to uroe formal objection of this kind 
 for the first time at the hearing. The Trustees of Water/own v. Cowen, 
 4 Paige R. 515, 510. 
 
 Individuals having no commiwity of interest cannot prosecute their 
 several rights in one bill; as where they merely held In several parcels 
 land derived from the same source and charged with a separate tax 
 under similar circumstances. Armstrong et al. v. Treasurer of Athens 
 Co., 10 Ohio R. 236, 235 ; State rf Ohio et al. v. Ellis et al., Id. 456. 
 
 Two or more creditors having judgments on which executions are 
 returned unsatisfied against some debtor, may join in one bill, provided 
 it seems the aggregate sum of their judgments exceeds $100. Dix 
 et al. V. Briggs, 9 fai^ie R. 696, 595. If the execution returned un- 
 satisfied was on personalty, as where it issued on a justice's judgment 
 not docketed in clerk's office so as to affect realty, the bill cannot be 
 filed. Ihid. 
 
 An administratrix cannot be made co-complainant withput assent 
 and if she claim adversely to the prayer of the bill, she has a right to set 
 up her claim, and her name, on motion, will be inserted as a defendant. 
 Dare' s Administrators v. Allen's Executors, 1 Green's Ch. R., 288. 
 
 On bills implicating the conduct of an acting administrator, brought 
 by his co-administrators, to set aside a sale, on allegation that it was 
 improperly conducted and sold below its value, or on bills of this de- 
 scription, all the executors and administrators of testator or intestate 
 must be parties. In this court, if one of the executors or administra- 
 tors, who is a necessary party, refuses to join in the suit as a co-com- 
 plainant, the proper course is to make him a party defendant, stating in 
 the bill the fact that he would not consent to be a ctiu.plainant in the 
 suit. Where a bill of the above description was filed by two adminis- 
 trators, in the name of all, and one of them swore, im motion by defend- 
 ant, to take bill off the files and dissolve injunction, that he was the acting 
 administrator, was 6atisfie<i the sale was fair, and that the bill was filed 
 without his consent, the rourt allowed complainant to amend by making 
 the non-assenting administrator j)arty defendant, and by inserting his 
 refusal in the bill, retaining the injunction, but suspending the counter 
 motion of complainant, for a review until bill should bo so amended.
 
 399 NOTE ON PARTIES. [S. III. 
 
 oJ' pIkt"es^1s Thus, a churchwarden who has filed a bill to restrain a par- 
 Co-PrAiN|nFP3^ son from pulling down the church-yard wall, Aay, after his 
 Churchwardens y<^^r of office has ceascd.jnin as a co-plaintiff with one of his 
 etraln^tiiepiruinl^ succcssors in a sup[)lemental bill for the purpose of stating 
 yra'wan':^"''''^ facts which have occurred since the filing of the original bill. 
 
 400 Marriott v. Tarpleij, 9 Sim. 279. 
 
 Consignees. And where the separate property of several consignees has 
 
 become mixed and confounded together so as to be incapable 
 of being distinguished, they thereby become tenants in com- 
 • mon thereof, and, as such, may join in one bill for an account 
 
 and equitable set off against the owner of a ship in which such 
 property was shipped, and for an injunction to restrain several 
 actions brought by him against them for freight and average- 
 Jones V. Moore, 4 Y. & C. Eq. Ex. 351. 
 Executor of de- And in a Suit for an account of the assets of a deceased 
 eentativr^a'^'^co. debtor, the executorof the person who was the origiual admin- 
 M^eTole'exiJtins '^trator de hows non, and personal representative of such debtor, 
 representative, is properly joined as a co-defendant with the person to whom, 
 on the death of such original administrator, afresh administra- 
 tion de bonis non was granted, and who thereby became the 
 sole existing personal representative of such debtor. Holland 
 V. Prior, 1 M. & K. 237, (decided by Lord Brougham, C, 
 overruling the decision of the Vice-Chancellor.) 
 Legatees co- A^ain a bill is not demurrable on the srround of the ioinder 
 
 plaintiffs with an „° ,..„., '^ . .^ 
 
 executor. oi legatees as co-plaintms with an executor, m a suit tor a 
 
 debt due to the testator's estate. Rhodes v. Warhurton, 6 Sim. 
 617. 
 Mort^ajree aco- But if a mortgagee of the interest of a Settler under a set- 
 settlor. ^' " tlement joins with such settler as a co-plaintiff in a bill to set 
 aside the settlement, the mortgagee can obtain no relief by a 
 suit so constituted. Bill v. Cureton, 2 M. & K. 503. 
 Occupiers co- And the respective occupiers of several houses cannot join 
 junction^ bill To in a bill for an injunction to restrain a nuisance; for that 
 ance.^'° ^ °"*^ which is an answer to one may not be an answer to another. 
 
 Hudson V. Maddison, iSi Sim. 416. 
 Joinder of re- In a bill against a former partner in respect of a private ad- 
 continuing'part- Vantage clandestinely obtained by him, a partner who retired 
 
 ners, as co-plain- 
 
 (fiffa. ■ 
 
 But if such amendment were not made in a time fixed, the motion to 
 take the bill from files and^issolve injunction should prevail. Tooker 
 et al v. Oakley. 10 Paige Ch. R. 289, 288.
 
 S. III.] NOTE ON PARTIES. 400 
 
 before the transactions was discovered, and other persons who ^y'^^'^^^^lf 
 subsequentlybecame partners, and the continuing partner, may Co-plainti^s. 
 be all joined as co-plaintiffs. Faucet v. WhiteJiouse, 1 Russ. & 
 My. 132. 
 
 But where a bill is filed by some of the shareholders of a ^ ° *"" 
 joint-stock company, on behalf of themselves and all the other 
 shareholders, except the defendants, seeking, among other 
 things, to be protected from a judgment against the company 
 certain other shareholders who had been released from pro- 
 ceedings under the judgment on payment of a call of a certain .^- 
 amount, are necessary parties to the suit: but they ought not 
 be co-plaintiffs ; and, inasmuch as such persons, if not named 
 as defendants, must be regarded as plaintiffs under the gene- 
 ral description of other shareholders, the bill is demurrable on 
 the ground of misjoinder, if it does not name them as defen- 
 dants. Lund V. Blanshard, 4 Hare, 9. But see Apperley v. 
 Page, infra, p. 415. 
 
 And if a personal representative of a trustee by whose nag- fgn^^ve ^^^\ 
 lect an opportunity of committinfT a breach of trust had been trustee, with a 
 
 I I J o person seeking 
 
 afforded, is joined as a co-plaintiff with parties seekin? relief relief in respect 
 
 'J I I ° of a breach of 
 
 in respect of such breach of trust, and it may be necessary to trust, 
 resort to the trustee's assets for the purpose of making good 
 the loss, the bill will be dismissed, because the interests of the 
 co-plaintiffs might ultimately become conflicting. Jacob v. 
 Lucas, 1 Beav. 436. 
 
 Where a bill is filed by a lessee of tithes, and by the vicar vicar a co-pialn- 
 for the recovery of tithes, if the lease of the tithes was by pa- oft^heV^^'^* 
 rol, the vicar is properly joined as a co-plaintiff with the les- 
 see of the tithes ; but if the lease was by deed, there is a mis- 
 joinder. Foot V. Bcssant, 3 Y. & C. Eq. Ex. 320. 
 
 A bill broufjht for an account and for an injunction to re- Joinder in abiii 
 
 ■~ •' to restrain pro- 
 
 Strain proceedings at law, cannot be demurred to on the ground cccdim^s nt law, 
 
 '^ . . . . of a plnintift' in 
 
 , that the plaintiffs in equity are notall defendants at law, where equity who is 
 
 !••/¥>• -i- i/>i "°'' ^ defendant 
 
 the plaintm in equity who is not a defendant at law has an utiaw. 
 equal interest with those who are defendants at law. Darthcz 
 v." Lee, 2 Y. & C. Eq. Ex. 12. 
 
 The joinder of a person as a co-plaintiff who is not entitled Joinder of a per- 
 
 ,.«., ,,.. !•! !• i> *°" having no 
 
 to any relief, though he is interested in the subject-matter oi right to reiW. 
 the suit, is a ground for dismissing the bill with costs against 
 all the plaiiltiffs, even though the objection be only taken by
 
 402 NOTE ON PARTIES. [S. IV. 
 
 answer, and not by demurrer or plea. So that where a fund 
 is lost in consequence of the tenant for hfe insisting on a trus- 
 tee placing it in the hands of another person, and the tenant 
 for life, who, of course, is entitled to no relief, joins with the 
 persons interested in remainder, in a bill against the trustee 
 to make him liable for the loss, the bill will be dismissed, even 
 though the objection be not taken except by the answer. 
 Goodyear v. Robinson, 4 Law J. (N. S.) 174, M. R. 
 
 For other cases connected with the question of misjoinder, 
 see supra, note, p. 27, and note, p. 30, and note, p. 177, and 
 note, p. 272. See also Mocatta v. Ingilby, and Taylor v. 
 Salmon, infra, p. 414. 
 
 ^^- VV^^^,r IV- Parties to Suits of a Public Nature* ( 1 ). 
 
 Suits of a pub- > ' 
 
 hc nature. 
 
 ^^-^^^^^-^ The attorney-general may be made a defendant to a bill of 
 ^au^lecretfry discovery relating to matters not within his private or official 
 tielto'a^bm'of knowledge or cognizance, and other public officers (thesecre- 
 discovery. ^.^x^ of war, for instance,) may be made defendants to a bill in 
 
 their public character. Deare v. Attorney-General, 1 Y. & C. 
 
 Eq. Ex. 197. 
 
 * See Section VII., on " Parties to Suits affecting persons having a com- 
 munity of interest." 
 
 (1) The superintendents of the poor cannot file a bill against a hus- 
 band for county expenses in support of his wife as a lunatic or pauper 
 until they exhaust their remedy at law by judgment and execution re- 
 turned unsatisfied. The superintendents arc by statute a corporation, 
 and where it is proper to bring a suit in their ofiicial capacity it ought to 
 be in the corporate name given to them by statute, not as in this case, 
 in their individual names with their official description. But these 
 are matters of form which may be obviated by amendment. Pomeroy 
 V. We/Zs, 8 Paige R. 40y, 411, 406. 
 
 Where a state statute authorizes suit against a county as against 
 an individual, as in Michigan, (but in Massachusetts, on a judgment 
 against a town or county, the property of any citizen is liable. 6 Met- 
 calf, 552, cited ut supra, p. 582.) A creditor's bilFmay be filed against 
 a county, to subject equities belonging to the county, such as bonds, 
 mortgages, &c., which could not be reached by execution, on judg- 
 ment recovered at law, and nulla bona returned, and this, notwith- 
 standing a mandamus might have issued to compel public officers to 
 do their duty, and in Michigan to compel the supervisors agreeably to
 
 S. IV.] NOTE ON PARTIES. 40^ 
 
 Where a suit is instituted respecting money given for super- su„3 o"'/po^° 
 stitious uses, and it is doubtful whether it will be for the i-ic natukk. 
 queen, under her sign manual, to direct the application of the Attorney-gene- 
 money to other charities not superstitious, or whether the mo- f^> >" " suit as 
 
 •' i to money set- 
 
 nev will revert to the settlor by virtue of a condition invested tied tosupersti- 
 
 "' •' _ tious uses. 
 
 in the deed for that purpose, the attorney-general is a neces- 
 sary party. De Themines v. De Bonneval, 7 Law J. (O. S") 
 35. 
 
 ■statute to levy a tax to pay the judgment. Lyell v. the Board of Su- 
 pervisors of St. Clair Co., 3 McLean, 580. 
 
 In New-York, tlie chancellor decided that a bill in nature of a judg- 
 ment creditor's bill, lies by board of supervisors of a county to collect a 
 tax from equitable assets, on return of collector that no visible property 
 of debtor can be found, out of wliich the tax can be levied. Superd- 
 sors, <f-c. V. Durant, 9 Paige R. 185-137, 182. But the decision was 
 reversed in error 10 to 8, 2(5 Wend. 66. 
 
 The grantee of a lot adjoining a public square having a special co- 
 venant from owner that it shall be kept open, may restrain him from 
 violating the covenant and join the corporation as a party. Trustees 
 of Watertown v. Coweru, 4 Paige R. 514, 515, 510. See Id. 513, 
 et seq. as to the doctrine of dedication of lands in a city or village to 
 be used as a public common, open square, or public walk, a square or 
 " place," dedicated generally to the use of the inhabitants of a town or 
 village, and not conveyed directly to a corporation for corporate pur- 
 poses, authorizes one or more inhabitants who have property adjoining 
 it, and which is affected in its value by the square, may enforce the ex- 
 ecution of the trust, to enjoin the corporation from diverting it to a 
 different public use. It was valuable property appurtenant to the 
 estates of the lot holders, a vested right which the legislature could 
 not authorize the corporation to chanpe in its character. Le Clerq et 
 al. V. Town of Gallipolis, 7 Ohio R. 354, condensed from 7 Hammond 
 R., 1st part, 217. 
 
 Bill in nature of a creditor's bill for satisfaction of a tax, a right 
 without a remedy. The decision of the chancellor in The Supervi- 
 sors of Albany v. Durant, 9 Paige 186-7, 182, tliat the jurisdiction of 
 the court extends to a bill in nature of a creditor's bill on return of 
 collectors of a tax unsatisfied, to reach choses in action of bond and 
 mortgage or equitable assets which could not be levied on and the tax 
 collected, that such relief was within the appropriate powers of the 
 court where the remedy at law was inad. quale, that it was sustainable 
 in allowing to the statutory remedy in favor of a judgment creditor on 
 return of execution unsatisfied and was within tho equity of that
 
 402 NOTE ON PARTIES. [S. IV. 
 
 IV. Parties to The attornev-ffeneral is a necessary party to a bill filed by 
 
 Suits op a pub- _ . . . J r j J 
 
 Lie NATURE, ail incorpoiated charitable institution, for a legacy, where it is 
 
 Attorney-ffene- ^° remain invested in stock, and the dividends are to be ap- 
 
 rai, in n suit by p]ie(j for purposes not correspondinof with the trusts upon 
 
 an incorporated .• r o \ 
 
 charitable iusti- which tlic fjeneral funds of the institution are invested. Cor- 
 poration of the Sons of Clergy v. Mose, 9 Sim. 610. 
 
 statute, but that the statute was merely declaratory of the pre-existing 
 power of the court, as proclaimed in the case of Hadden v. Spader, 20 
 Johns. Reports, was reversed ten to eight in the Court for the Ccrrec- 
 tion of Errors;, 26 Wend. Rep. 66. 
 
 It was there held by Senator Koot and the President of the Senate 
 in an elaborate opinion, in which the majority concurred in opposition 
 to the expressed opinions of Justice Cowen and Senators Verplanck 
 and Humpiirey, that the opinions given in Hadden and Spader, that the 
 chancery power extended to reach equitable assets, simply in aid of an 
 execution at law, was not called for by the case, that in that as well 
 as all cases, some known ground of equitable jurisdiction, such as 
 fraud, trust, &c. was coupled with the relief sought and indispensable 
 to such relief, in cases not within the statute authorizing judgment 
 creditor's bills, and that the statute was not declaratory but gave a new 
 remedy previously unknown to the powers of this court, both here and 
 in England, where no such power had existed or was claimed by the 
 Hig:h Court of Chancery. 
 
 Therefore that a bill in the nature of a creditor's bill to reach equita- 
 ble assets not within the reach of a tax warrant, does not lie at the 
 suit of a county to enforce the payment of county taxes, where the 
 warrant for collection has been returned to the county treasurer un- 
 satisfied for want of such property as could be levied on, and that by 
 consequence, a right even in the public might exist until provided for 
 by the legislature without a remedy to enforce it at law ur in equity. 
 Durant v. Supervisors of Albany Co., 26 Wend. 66. 
 
 The President of the Senate says, idem. p. 91-92, "that it may be 
 objected that these rules," (meaning chancery powers which he had 
 quoted,) " leave the case of a statute right and an imperfect statute 
 remedy without effectual relief, and that the famihar saying, that 
 ' every right has a remedy,' would therefore become the mere doctrine 
 of a beautiful theory, rather than an operative principle and useful 
 reality. To this I would answer in the language of Chancellor San- 
 ford [whose decision in Donovan v. Finn, Hopk. R. 69, repudiated the 
 assumption of such a jurisdiction prior to the Revised Statutes,] ia 
 which he has well said, that ' the maxim that every right has a remedy, 
 and that where the law does not give redress, equity will afford relief,
 
 S. IV.] NOTE ON PARTIES. 402 
 
 Where a specific injury is done by nuisance to individuals su'iTroF^fpo^D*'. 
 resident or having property in the locality of the nuisance, yJ^^^J!^^!^^^ 
 any of them may file a bill for relief, without making the attor- Mtomej-penc- 
 ney-general a party, although such nuisance is a nuisance to jfs'trTin' a "gen^ 
 the public generally, as well as to those individuals, ^f^cra- "i nuisance. 
 cer v. London and Birmingham Railwai/ Co77i'pany, 8 Sim. 192, 7 
 Law J. (N. S.) 281. See also Semple v. Birminghavi Railway 
 Company, 9 Sim. 212. And where an individual sustains spe- ^^^ 
 cial damage from a nuisance (as where the goods in his shop rai, in a suit to 
 
 ° ^ . " _' abate a local niu- 
 
 are injured by the smoke of a steam engine), he may file a bill sance. 
 to restrain it, without making the attorney-general a party; 
 although, in the bill he alleges that the nuisance is a nuisance 
 to the neighborhood, and sets tbrtli a letter written by his so- 
 licitor to the defendants on behalf of several persons in the , 
 
 r Lessor and as- 
 
 neighbourhood. Sampson v. Smith, 8 Sim. 272. And to a bill si^eesof aper- 
 
 ° , , . 6on injured by a 
 
 by a lessee to restrain a nuisance, the lessor is not a necessary nuisance. 
 party. Nor are the assignees of the plaintiff", where he is 
 an uncertificated bankrupt ; for an uncertificated bankrupt has 
 a right against all the world, except his assignees. Sc77iplew. 
 London a7id Birmingham Railway Company, 9 Sim. 212. 403 
 
 foreign government is a necessary party to a suit instituted ment, in a suit 
 by alleged agents thereof, for the possession of property be- againstTformer 
 longing thereto, against other persons who were the agents "sent. 
 thereof, but whose agency is alleged to have been determined. 
 S:hneider v. Lizardi, 15 Law J. (N. S.) 435, M. R. 
 
 To an information against churchwardens to establish a ^n**[nfo*rm'a't'io° 
 charity, the vestry clerk may be made a defendant, when he '? f.^tabiish a 
 refuses to allow the relator to examine the vestry book. At- 
 torney-general v. The Churchwardens of St. Wlargaret's, West- 
 minster, 1 Law J. (N. S.) 127, V. C. 
 
 however just in theory, is subordinate to positive institutions, and can- 
 not be applied either to subvert establi.shed rules of law, or to give to 
 this court a jurisdiction hitherto unknown.' To this I will merely add, 
 that in many cases the legislature and not the courts can alone fur- 
 nish to existing rights effectual remedies.
 
 Suits. 
 
 403 NOTE ON PARTIES. [S. V. 
 
 X; Pa*"" ■'o V. Parties to Suits for an Account, and to Adminis- 
 
 SaiTS FOR AN • ' 
 
 AcconNTANDTO TRATION SuiTS* (1). 
 
 Administration 
 
 J. Assignee. See Legatees. 
 
 2. Heir. — The 31st order of August, 1841, declares, " That 
 in suits to execute the trusts of a will, it shall not be neces- 
 sary 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 established against him." (See Marriott v. 
 Marriott, 15 Law J. 422, V. C. B.) 
 
 * See Sections IX., XII., XIII., and XIV. 
 
 (1) Under the 2 R. 8. 191, § 154, which authorizes complainant to 
 make any person besides mortgagor party, who secures the debt, as- 
 signee of a mortgagor, guaranteed by the mortgagee who assigned it, 
 may make him a party to the foreclosure, to have a decree against him 
 for any deficiency in the sale of the mortgaged premises in case the 
 amount should not be collected from mortgagor, who would be prima- 
 rily liable for such deficiency ; and if dead, his personal representatives 
 may, it seems, be made parties for recovering such deficiency, to be 
 paid in due course of administration. But no decree can be against 
 them so as to be executed, until an account of assets is taken, or they 
 admit in answer their sufficiency, and where they are unnecessarily 
 made parties and put to the trouble of an account, the court may refuse 
 complainant his extra costs of taking the account subsequent to the 
 decree of foreclosure. The heirs of mortgagor or guarantor cannot 
 be made parties to reach the realty for a contemplated deficiency. To 
 do that complainant must show the personalty exhausted. Leonard v. 
 Morris et al, 9 Paige R. 91-3, 90. 
 
 In a. suit against personal representatives of a deceased debtor to re- 
 ■cover a debt due from his estate, it is only necessary for complainant 
 to file bill in his behalf, and all other creditors standing in the same 
 situation, where it appears on the face of bill that there will be a defi- 
 ciency ki the fund, and that there are other creditors who are entitled 
 to a ratable proportion with the complainants, such an allegation is 
 unnecessary to enable the court to make a general decree for the bene- 
 fit of all the creditors, where the answer of the defendant shows that 
 the estate is insolvent, and that there are other creditors who have an 
 interest in the fund. But that principle applies only to a bill filed by a 
 single creditor, or by several creditors, for a debt due to them all. For 
 several creditors having distinct debts against the estate, cannot file a 
 bill for their respective debts without making all other creditors having 
 a common interest with them parties, or stating in the bill that it is
 
 S. v.] NOTE ON PARTIES. - 403 
 
 3. Legatees and their assignees and personal Representatives. ^- parties to 
 — Where one of several residuary devisees and legatees files Account and to 
 
 . . . •' ° Administration 
 
 a bill tor the administration of the estate, the other residuary ^mrs. 
 legatees may be served with a copy of the bill under the 23rd ^^^^^^ j 
 order, where they and the plaintiff' have a common interest, tees. 
 and they have no other interest. Davis v. Davis, 4 Hare, 38S. 
 
 filed in behalf of themselves and of the other creditors who have a 
 common interest with them. Where a special claim is made against 
 the personal estate of decedent, adverse to the rights and interests of 
 his general creditors the personal representative need only be party, and 
 his duty is to defend against the claim. A person may be a necessary 
 party within the rule requiring all persons interested to be made parties, 
 although the proper decree may be made as to the subject matter of 
 litigation in his absence if defendant makes no objection. And in 
 such case if defendant neglects to make the objection by plea, answer, 
 or demurrer, of want of parties who are only necessary to protect him 
 from further litigation, the court in its discretion may refuse to sustain 
 the objection at the hearing, or to require the cause to stand over to add 
 new parties in that stage of the suit. Upon a general demurrer to 
 bill by several, for want of equity, the demurrer must be allowed unless 
 it appear that all the complainants have an interest in the subject mat- 
 ter of the litigation. Deas et at. v. Bouchard Ex. and U. S., 10 Paige 
 R. 445, 447-449. 
 
 In a bill tiled by a creditor of decedent against heirs or devisees for 
 his debt out of lands descended or devised, if complainant cannot as- 
 certain and specify those lands he may specify tlie fact in his bill and 
 call on the heirs and devisees to discover the lands devised or descended 
 to them respectively and the encumbrances thereon, to enable him to 
 reach those lands. 
 
 After the Revised Statutes of New-York went into operation and 
 before July, 1837, the only remedy of a creditor at large was to file his 
 bill against the heirs and devisees. The statutes appear to contemplate 
 that each creditor bring a separate suit for his own debt only, against all 
 the heirs or devisees. It is not therefore necessary for complainant 
 who files a bill under the statutes to make any otlier creditors parties. 
 Parsons v. Bawue, 7 Paige R. 354. 
 
 Where a judgment or incumbrance has been paid but is fraudulently 
 kept on foot by a third person to deprive a creditor of tlie decedent of 
 his remedy against the statute in lands of heirs or devisees, and by sale 
 of the property for its full value, it seems sucii third person is a proper 
 and necessary party to a suit against the heirs or devisees. But such 
 incumbrancer is not a necessary party, and therefore defendants cannot 
 demur. Parsons v. Bowiie cl al., 7 Paige R. 361, 354. 
 
 34
 
 403 - NOTE ON PARTIES. [S. V- 
 
 V. Parties to But " a person to whom a legacy or an annuity is given, to 
 Account AND TO be paid out of the residue, after the death of the legatee foi 
 
 Administration ,.^ ^ , . , . _ 
 
 Suits. life 01 sucli residue, IS not a necessary party to a suit for an 
 . , administration of the estate brought by leeatees of aliquot 
 
 Legatee or an- a j i3 1 
 
 nuitant who ia shares of the ultimate residue." Fisk v. Norton, 1 Hare, 3S1. 
 
 to be paid out of 
 
 a residue. 
 
 A bill by creditor against heirs or devisees of real estate to obtain sat- 
 isfaction ofa debt against decedent under Revised Statutes of New- York, 
 which cannot be filed till three years after administration taken, if it ap- 
 pear the bill has been prematurely filed, the defendant may demur or 
 object in his answer, and the bill will be dismissed, and if it do not so ap- 
 pear, defendant may bring up the fact by answer or plea, and which the 
 statute contemplates must be filed by each creditor, not by one in behalf 
 of himself and all others; he must allege in his bill that the personal 
 estate of decedent was not sufficient to pay his debts, or that after due 
 proceedings before the surrogate and at law, he has not been able to 
 fcollect his debt out of such personal estate, he cannot consistently 
 with the statute now file a bill against the heirs and personal represen- 
 tatives to obtain his debt. The misjoinder makes the bill multifarious. 
 • Bulls V. Genung, 5 Paige R. 254, 258-9. 
 
 A bill against representatives of deceased partner for satisfaction of a 
 partnership debt out of decedent's estate, the joinder of the surviving 
 partner with them as a defendant, does not make it multifarious or de- 
 murrable by such representatives. It seems questionable whether it was 
 absolutely necessary to m^ke him a party, but he, not they, should make 
 the objection. He is at least not an improper party as to them so as to 
 make the bill multifarious on that account. If no decree can be made 
 against him, for complainants or co-defendants, he alone can make the 
 objection, and if any decree could be against him, it v.ould be for bene- 
 fit of his co-defendants to relieve the estate or some part from the 
 debt, in nature of a decree for contribution. Bulls v. Genung, 5 
 Paige R. 265, 254. 
 
 It is a privilege given complainant in chancery, to go beyond the 
 party legally bound, to search assets in the hands of others out of which 
 his debt ought to be paid. But if they have no assets, and there is no 
 other special ground assigned, they are not proper parties. Gobel v. 
 Andruss et al. 1 Green's Ch. R. 74, 66. 
 
 A complainant in a suit for mere purpose of recovering a legacy, is 
 not bound to make the representatives of a deceased co-executor parties 
 when he expressly charges that all the assets are in the hands of the 
 surviving executor. Secus, if the co-executor is charged with assets or 
 when fraud or cijllusion is charged between the executors or insol- 
 vency ; and upon the same principle debtors to the testator may be 
 made parties to reach assets in their hands. Ibid, 73, 66.
 
 s. v.] 
 
 NOTE ON PARTIES. 403 
 
 If in an administratioh suit, instituted by the next of kin of ^- p*»ties to 
 
 •' bUITS FOR AN 
 
 a testator at his death, the question is, whether the testatorby Account andto 
 the words " my next of kin," meant his next of kin at his 
 death, or at a future period, the person or persons who may 
 by possibility be the next of kin at that future period, ought to ^^^^ ^ ''^=^" 
 be made a defendant or defendants, as well as the executor. 
 TJrquhart v. Urquhart, 13 Sim. 613. 
 So where a limitation is for the next of kin or personal re- claimants under 
 
 "• . . . a will, distnbu- 
 
 presentatives of a settlor, in a due course of administration, tees under a for- 
 
 T r -\ • Till mersuit. 
 
 according to the statute of distributions, and such settlor leaves 404 
 
 a wife surviving, and a sole next of kin, and the next of kin 
 
 files a bill for the property ; the wife of the settlor or her next 
 
 of kin are necessary parties or a necessary party ; and so also 
 
 are persons to whom the property has been paid over in a 
 
 former suit. Kilner v. LeacJi, 7 Beav. 202. 
 
 The assignee of a legatee is a necessary party to a suit by Assi^ee of a 
 such legatee for the administration of the testator's estate, ^^atee. 
 where the assignment took place before the institution cf the 
 suit. Campbell v. Dickens, 4 Y. & C. Eq. Ex. 17. 
 
 And where a residuary legatee assigns his share after the * 
 
 institution of a suit for administering the testator's estate, but 
 before such legatee is served with a snhjyoena, the assignee is 
 a necessary party. Humble v. Shore, 3 Hare, 119. 
 
 Where a bill is filed for the purpose of having the residue Personal repre- 
 
 t> 1 •ii^ii--i- t- • sentative of a 
 
 01 a testator s estate ascertamed, and tor the distribution oi it legatee, 
 among the parties entitled, the suit will be defective for want 
 of parlies, if there is nopersonal representative of one of them 
 constituted by the proper ecclesiastical court in England, al- 
 though the bill states that a person has proved the will of such 
 person in a diocesan cf»urt not in England. Loicryv. Fulton, 
 9 Sim. 104. 
 
 4. Partners. — A surviving partner of a testator may be {'(."'j^for hfae^uu 
 joined as a co-defendant with an executor to a bill filed for an fof."" nccount 
 
 J against his exe- 
 
 account by the residuary legatees, and may be thereby re- futor. 
 quired to account to them in respect of the assets in his hands 
 as a partner. Brotosher v, Watkins, 1 Russ. & M. 277 ; Da. 
 vies V. Davies, 1 Keen, 534. 
 
 5. Personal representatives of the person whose assets are the mfnisfr"^"' nn*!! 
 subject matter of the suit. — In a suit for a general account and "°' "° "'I'liinis- 
 
 •' •' O Crator ad lUtm. 
 
 administration, the estate must be represented by a general
 
 404 NOTE ON PARTIES. [S. V. 
 
 V. partiks to administrator, and not by a mere administrator ad litem. 
 
 Suits for an 
 Account ANDTo Qroft V. Waterton, 13 Sim. 653. 
 
 Administration "^ • 
 
 Suits. An executor who has not proved or acted is not anecessai'y 
 
 , party, even tboucfh he has not renounced. And it is not neces- 
 
 Executor wlio r .' ' o 
 
 has not proved, gary to allege thatone of two or more executors has not proved, 
 in order to exempt the plaintiff from making him a party. It 
 is sufficient if the bill alleges that those who are made parties 
 have proved, and are^the personal representatives of the tes- 
 tator. For the fact of the other person not having proved may 
 be easily established by the production of the probate. Dyson 
 v. Morris, 1 Hare, 413 ; Daviesv. Williams^ 1 Sim. 5. 
 
 405 Where a suit is instituted for the purpose of securing a re- 
 L^ntativl c'oMtt- sidue remitted by an executor constituted in India, to an agent 
 in a fuH: as tours'? ^" ^'^'^ country for distribution amongst the parties entitled, 
 sets originally jj- jg tiecessarv that an administrator should be constituted in 
 
 or actually out •' 
 
 of the jurisdic- Entjland, and made a partv to the suit. Loffan v. Fairlie, 2 
 tion- & ' , *■ .... 1 
 
 Sim. & Stu. 292. And even where a suit is instituted re- 
 specting an unadministered part of a testator's estate which has 
 been remitted from India, and is in the hands of an executor re- 
 siding here, but constituted in India, a personal representative 
 constituted in England is a necessary party. Bond v. Graham, 
 1 Hare, 482. And a bill seeking account of the assets of an 
 intestate who died in India, which have been possessed by a 
 personal representative constituted by the proper court there, 
 cannot be sustained in the absence of a personal representa- 
 tive of the intestate constituted in England, although it does 
 not appear that the intestate had any assets in England and 
 consequently no letters of administration have been taken 
 out in this country. Tyler v. Bell, 2 My. & C, 89. And in 
 like manner to a suit instituted for an account of assets of a 
 testator possessed by an executor in Honduras, an executor 
 constituted in this country is a necessary party. Lewis v. Gen- 
 tle, 1 Lavi' J. (O. S.) 43, Ch. R. Where, however, a clear 
 ascertained fund is remitted from abroad by an executor to a 
 person in England, to apply it for the benefit of the legatees 
 thereof, the court will determine the respective rights of the 
 several legatees, without having a legal personal representa- 
 tive of the testator before the court, if the consignee is a par- 
 ty to the suit ; at least if no objection be made by the defend- 
 ants on the ground of the personal representative not being 
 made a parly. Arthur v. Hughes, 4 Beav. 506,
 
 s. v.] 
 
 NOTE ON PARTIES. • 405 
 
 6. Personal representative and assignees of a personal repre- ^^^^I'^l ^ 
 sentative of the individual whose assets are the subject matter of adm°n"tbI?xon 
 the suit. — Where a bill is filed against executors who proved y^l^^^V^^^y 
 their testator's will and possessed his assets in India, and the personal repre- 
 bill seeks to charge them with a loss, and one of theno dies in * |"nd'o7 In ^n- 
 India, and his executor, who proved his will ^nd possessed his aian executor, 
 assets there, and afterwards came to England, is made a party 
 
 to the suit, it is not necessary that a personal representative 
 in England of the deceased executor should also be before \\e 
 court. Anderson v. Counter, 2 M. & K. 763.. 
 
 In an administration suit against a surviving executor, it is pet8olS*^rep?e^- 
 not necessary to bring before the court the assignees or per- ^g°e*a'^ed^ bank* 
 sonal representatives of a deceased bankrupt executor, all of rupt executor, 
 whose estate has been administered under the commission. 406 
 
 Masters v, Barnes, 2 Y. & C. Ch. C. 616. 
 
 Where an aofent is employed by two executors, the survivor Personal repre- 
 
 o r J J ' 8entative8 of a 
 
 of them may file a bill against such agent for an account, with- deceased execu- 
 
 '' ° ° tor, in a suit by 
 
 out making the personal representatives of the deceased exe- » surviving ex- 
 
 , , ecutor against 
 
 cutor parties to the suit. Slater v. IVheler, 9 Sim. 156. an agent. 
 
 7. Pur clMsers.— Where a bill is filed by the next of kin of r,i\t'byTexi°of 
 an intestate against his administrator and others, praying that ^a°e°*who '°hld 
 an account may be taken of the rents and profits received by contracted to 
 the administrator of estates contracted by the intestate to be 
 
 sold to different purchasers, and agreed by the heir-at-law to 
 
 be given up to the next of kin in case the purchase contracts 
 
 should be set aside, and also praying that the balance after 
 
 deducting the administrator's disbursements may be invested 
 
 and secured for the plaintiffs and the other persons entitled 
 
 thereto, and that a receiver may be appointed ; in such case 
 
 the purchasers are necessary parties. Fii'st, because other- • 
 
 wise the administrator would be obliged to render the same 
 
 account twice — once to the next of kin (admitting them to be 
 
 entitled to what they seek,) on the ground that the plaintiffs 
 
 may not be able to recover the purchase monies, unless the 
 
 rents are properly accounted for and applied — and once to 
 
 the purcliascrs, to whom, if the contracts are valid, the rents 
 
 and profits belong. Secondly, because the purchasers would 
 
 not be bound by the acts of the receiver without being ]»arties 
 
 to the cause. And thirdly, because the court does not take 
 
 possession of a fund, without having the owners of it parties 
 
 to the suit. Lumsden v. Eraser, 1 My. & C. 589.
 
 406 • NOTE ON PARTIES. [S. VI. 
 
 V. Parties to Other Parties. — Although upon a bill for a general account 
 
 Suits for an ore 
 
 Account AND TO between two persons, a question arises whether certain items 
 
 Ad.ministhation . • 1 • 1 
 
 Suits. ought to be charged against one of them or against a third 
 Partv to a bill pe'Son with whom they had mutual dealings it does not fol- 
 for an account ]o^ tij^t such third person is a necessary party. Darthez v. 
 
 Clements, 6 Beav^ 165. 
 Co-plaintiff hav- ,In a suit for an account, a person may be made a co-plain- 
 muelntere^t™' tiff, if he has an interest in the taking the account, however 
 
 mi^iute such interest may be. Smith v. Farr, 8 Law J. (N. S.) 
 
 Ex. Rep 46. 
 Plaintiff in a suit The administrator ought not to be sole plaintiff in a bill 
 Sg rearassets!^ f"'' administering an intestate's real assets, under the"statute 
 
 3 & 4 W. IV. c. 104. Tubly v. Tuhhy, 2 Coll. Ch. C. 136. 
 A person who ^ pei'son who has improperly obtained a part of the assets 
 
 has possession of ' . . n y ' 
 
 partofanothers from executors, by setting up a deed of assignment of the pro- 
 perty to himself, may be made a party to a bill against the 
 executors for the administration of the estate, even without 
 any charge of collusion or insolvency. Consett w. Bell, 1 Y. 
 & C. Ch. C. 569. 
 
 407 
 
 Parties in a suit ' If two individuals are entitled to rents, the one up to a cer- 
 
 for an account .. -i i ^ p- ^ ^ i i 
 
 of rents. tain time, and the other aiterwards, the latter alone cannot 
 
 file a bill for an account of the rents accrued during the whole 
 period, without making the former a party, although he may 
 allege that he has satisfied the demands of the former. Att. 
 Gen. V. Pearson, 7 Sim. 290. 
 
 VI. PiETiEs TO VI. Parties to Suits pertaining to the relation 
 
 Suits pertain- , * / \ * 
 
 iNG to the re- of Assignor and Assignee* (1). 
 
 LATioN OP As- 
 signor AND As- . c • 1 I'll! 
 
 siGxVEE. The assignor of a judgment, as having the legal estate, is a 
 
 » 7^^ r necessary party to a suit by the assignee respecting it, although 
 
 Assignor of a .;r.' .' o ro' o 
 
 judgment in a g, power of attorney to sue is contained in the assignment. Par- 
 suit by the as- ^ •' ° 
 
 signee. tington V. Bailey, 6 Law J. (N. S.) 179 ; M. R. 
 
 * See note to p. 398. 
 
 (1) Assignee of the right of dower may state the assignment and sue 
 in her own name, but the right to be perfected is still assignor's, and be- 
 ing legal not equitable, is subject to the incidents which the law at- 
 taches, and among them the legal rule for applying the statute. The 
 case is as if thedowress was plaintiff. Wilson et ux. v. McLenaghan, 
 1 McMiillan Eq. Cases, S. Carolina, 39, 35. 
 
 Parties' demur- C. &. H., insolvent, assigned all their property to an assignee in 
 rer.
 
 S. VI.] NOTE ON PARTIES. 407 
 
 If a person entitled to purchase money or compensation g^'j^f^p^^" ^° 
 money to be ascertained by the award of a commissioner un- i^" '^o the kk- 
 
 •^ _ • •' LATION OF AS- 
 
 der an inclosure act, assigns away his interest before the signor and As- 
 
 ^ •' _ SIGNEE. 
 
 award, he is not a necessary party to a suit by the assignee V.-^'V^^fci^ 
 for the recovery of the money ; because before the award, he peSon^'^or"' 
 had only an equitable right to it, and after the assignment of purchase money 
 that, no interest remained, to him. Cator v. The Croydon Ca- 
 nal Company, 4 Y. & C. Eq. Ex. 405. 
 
 trust, to pay debts, and re-assign surplus if any, or hold it on such 
 trusts as they appointed ; the assignors, or their representatives, are 
 necessary parties to a suit of the creditors of C. & H. ajiainst the 
 executor of the assignee for an account, as they had a coinmoi or 
 connected interest with the complainants in taking the account of the 
 application of the assigned property; but \vh"re defendants had not 
 taken the objection that the assignors liad not been made parties, either 
 by his demurrer upon the record or ore lenus at the hearing, it could 
 not be taken upon an appeal from the order overruling the demurrer. 
 Dias el al. v. Bouchard, Executor, <^c. and U. S., 10 Paige R. 445. But 
 if the objection for the nonjoinder was not taken or pointed out by the 
 demurrer put in, nor ore lenus at the hearing it cotild not on appeal 
 from the order overruling the demurrer. Dlts elal. v. Bouchard, Exe- 
 cutor, cj-c, and the United Slates, 10 Paige Ch. R. 446, 458-9. 
 
 When there is an assignment to pay debts and re-assign surplus, the 
 creditors of assignor on bill for account against the assignees, should 
 join the assignors as parties, as tiiey had a common or connected interest 
 with complainants in taking account of the npplication of the assigned 
 property, but demurrer for want of parties should point out the neces- ' 
 sary parties either by name or msuch manner as to point out to com- 
 plainant the objection to his bill, and thus enable him to amend ; cites 
 Mitford 180,4th London edition. The rule thus given by Lord Redes- 
 dale has been doubted, 4 Myl. &. Craig. 32, sed vid. 1 Dan. Ch. Pr. 
 386. But in adherence to the spirit of the rule as laid down hy Lord 
 R., the demurrer must point out the necessary parties by name in refe- 
 rence to some statement of their names in the bill, or by their charac- 
 ters as the heirs, devisees, personal representatives, assignees, creditors, 
 &c., of some of the persons named or referred to in the bill. Ibid. 
 447, 454, 465. 
 
 The complainants in this court must be the real parties in interest 
 where a case in action is absolutely assigned. Tlie assignee of a judg- 
 ment or chose in action cannot file a bill in name of assignor who has 
 parted with all his interest in the subject, and is a mere nominal com- 
 plainant. Field v. Maghee, 6 Paige R. 640, 639.
 
 407 NOTE ON PARTIES. [S. VL 
 
 SDm^p^ERTAiN" ^^ ^ ^^ instituted to compel the raising of portions, for 
 iNG TO THE RE- wlucli a tcrm had been created under a settlement, the person. 
 
 LATION OF As- ' , i 
 
 8IGN0R AND As- to whom such term has been assigned in trust for a mortgagee 
 
 SIGNF.E. . _ ^ ^ O O 
 
 V^^'V^^^ with notice of the trusts of the settlement, is a proper party 
 teraf°a^nd term^ ^"'' ^^® Original termor is not a necessary party. Young v 
 or, in a suit to j^ofd Waterpurk, 8 Law J. (N. S.) 214, V. C. 
 
 raise portions. -» ' \ / ' 
 
 Though at law an assignment might be valid to transfer the value 
 of the property, or right, if no fraud, but where an assignee seeks the 
 aid of the court of equity to enforce his claim, the court will examine 
 into the consideration of the assignment, nature and value of the fund, 
 or estate assigned, and the relation of the parties, for the purpose of 
 doing that equity which the circQmstances may require and will get, 
 and an assignment as improvidently obtained where an undue advan- 
 tage has been taken of a person ignorant of his rights and unapprized 
 of the nature of his claim, and especially will the court examine into 
 the character of the transaction when the parties stand in the relation 
 of guardian and ward, or parent and child. Hence, a bill by a father 
 to obtain a fund held in trust by will, of his son, who on going to sea 
 assigned it for apparently valuable consideration, it was held that the 
 son and his minor child should be parties, and that complainant must 
 prove the consideration, the court regarding the assignment in equity 
 good only for the amount advanced. Haskell v. Codman, 8 Metcalf 
 Mass. R. 543-4, 536. 
 
 A creditor to carry into effect an assignment of debtors' property, 
 and to obtain his share, the other creditors provided for in tlie assign- 
 ment should be parties or the bill be filed in behalf of complainant, 
 and all others who may choose to come in under the decree, p. 33. But 
 if a judgment creditor is acting in hostility to the assignment, and is 
 seeking to set it aside, on ground that assignee is endeavoring to re- 
 tain the property of debtor under an assignment fraudulent and illegal, 
 in such case, the creditor cannot file bill in behalf of himself and those 
 whose claims he is opposing, p. 33. It is not necessary for him to 
 make the creditors so provided for in the assignment, parties. In suit 
 to set aside an assignment as fraudulent, it is sufficient to make the 
 fraudulent assignors and assignees parties, p. 34. 
 
 Assignees in trust for creditors are considered so far entitled to re- 
 present the interest of all the creditors provided for in the assignment, 
 as to be permitted to file a bill in their own names relative to the trust 
 estate without making those creditors parties, p. 34. Wakeman v. 
 Glover et al, 3 Paige R. 33, 34, 23. Affirmed on appeal from Ch. 
 11 Wend. R. 187. 
 
 So far as to property, on which no creditors has a lien by judgment 
 or execution, a creditor may file bill for his own benefit, without other 
 creditors standing in same situation as parties. Ibid. 33.*-
 
 S. VI.] NOTE ON PARTIES. 407 
 
 TO 
 PERTAIM- 
 
 Where a defendant assigns the subject-matter of a suit after p/Zits'^^'^t 
 the bill is filed, but before the subpoena is served, the assifjnee ''"^ '^° "'^ "* 
 
 t ■ r> LATION OF As 
 
 is a necessary party. Powell v. Wright, 7 Beav. 444. sio.nor and As- 
 
 •'■'•'_ . SIGNER. 
 
 Where a partner in two distinct firms assigns his share to a V^^'^V^^^ 
 co-partner in those firms, who undqrtakes to indemnify the as- defendant "be-* 
 signor against the liabilities of those firms, a suit may be insti- ^'^V ^^''^'"'^^ °*^ 
 
 '^ o ' •' subpoena. 
 
 tuted by the assifjnor affainst the executors of the assignee for f.arti'er and de- 
 
 * _•' ° a a visees of real 
 
 a specific performance of the agreement, and for an account estote. 
 and payment of what is due to the assignor in respect of the 
 unpaid consideration, and of a sum to which one of the firms 
 was indebted to the assignor, and of the debts paid by him 
 against which he was to be indemnified by the assignee : and 
 in such case a partner in the firm who was so indebted to the 
 assignor is not a necessary party ; nor are the devisees of the 
 real estate of the assignee, where the bill charges that his per- 
 sonal assets are sufficient for payment of his debts, although he 
 charges his real estate with payment of his debts ; for his per- 
 sonal estate is primarily liable. Morrallv. Pritchard, 6 Jur. 408 
 966, V. C. W. 
 
 VII, Parties to Suits affecting Persons having a vii. parties to 
 
 .Suits AFFECTING 
 
 Community of Interest* (1). Pbrsons having 
 
 ^ ' A Community OK 
 
 Interest. 
 
 1. Statutory mode of suing. — Some of the shareholders of v-^'V^^*-' 
 
 . . , ^ t M^ p 1 ■, 1 R'" of some of 
 
 a joint-stock company may sue on belialt oi themselves and the sharchoiacrs 
 
 1 1 1 1 1 1 . /■ I f ii- I ot'acom])any,on 
 
 the Other shareholders, tor the purpose or compelling the bohaif of thom- 
 chairman and directors of the company to refund monies im- ers^'nga^nst "the 
 properly drawn by them from the company and applied to di'rettors' ^^ 
 their own use, notwithstanding an act of parliament passed for 
 the regulation of the company provides that all proceedings 
 
 * See Sec. XIV., XY. See note to p. 398. . 
 
 (1) A subscriber to a joint-stock corporation who complains of an Bill, parties, 
 inequitable distribution of the stock, and seeks to reach stock im- 
 properly assigned or apportioned to others, should file his bill in 
 behalf of himself, and all other Pubscribcrs standing in the same 
 situation, unless the bill shows they have relinquished their rights. 
 After distribution of stock, the commis.'-ioncrs of apportionment are 
 not the trustees of, and do not represent the interests of, other persons 
 to Vi^hoin the stock is distributed. It seems the storkholders them-
 
 ^^^ NOTE ON PARTIES. [S. VII. 
 
 Suits AFFECTING ^V ^^ ^^ behalf of the company, against any person or per- 
 !commun;Vvof ^ons, whether a member or members of the company or not, 
 y^^^^^^^;^^ shall be carried on in the name of the chairman or of one of 
 the directors : for such an enactment does not apply to such a 
 case as that above mentioned, where the chairman and direct- 
 ors are themselves the parties amenable to the proceedings. 
 Hichens v. Congreve, 4 Russ. 562. 
 
 selves, so far as known, should be parties to suit which is to affect 
 their rights, prior to the orgECnization of the company by the election 
 of directors. Ibid. Walker v. Devereaux, 4 Paige R. 246-7, 229, cites 
 Egberts v. Wood, 3 Paige R. 520. 
 
 Parties on single bill to stay proceedings at law, all the defendants 
 at law, if the defence was common to all, or went to the whole cause 
 of action against any of defendants, are necessary parties. Paterson 
 V. Bangs, 9 Paige R. 634, 627. 
 Certainty, relief, A more liberal cast is allowable in pleadings in equity than at law. 
 shouW^not be And though it has been held that tlie like certainty should proceed in 
 surprised. both, (see Alitford, 285,) yet in general, certainty to a common interest, 
 
 a reasonable certainty suflScient to prevent the adversfe party from 
 being taken by surprise, is all that equity requires. In setting out the 
 title on which the case rests, defendant should be distinctly informed 
 of the nature of the case which he is to meet. Although setting forth 
 the title in alternatives may not be sufficient, yet where the title to re- 
 lief will be precisely the same in each case, the bill may be brought 
 with a double aspect, and the plaintiff may aver facts of a different 
 nature which will equally support his application. Story Eq. R, 
 5 254 ; Story Eq. PI, 5 240 to 255, 258, and note ; 1 Chitty on Plead, 
 as to the doctrine of certainty. 
 
 Every fact essential to his title to maintain his bill and obtain relief, 
 must be stated in the bill, for no facts are properly in issue unless 
 charged in the bill, and of course no proof can be generally offered of 
 ^ facts not in the bill, nor relief granted for matters not charged, though 
 
 ^ they appear from other parts of the pleadings and evidence, for the 
 
 court decrees secundum allegata et probata. The reason is, that the 
 defendant may be apprized by the bill what the suggestions and al- 
 legations are against which he is to prepare his defence. Story Eq. 
 PI. \ 257. 
 
 So in England a judgment creditor's bill, seeking to enforce his se- 
 curity against defendant's equitable interest in freehold, must allege 
 an elegit sued out, or a bill alleging defendants had goods of the debtor 
 and praying discovery, must aver execution sued out on the judgment,
 
 S. VII.] NOTE ON PARTIES. 408 
 
 And wher^an act of parliament for forminfj a ioint-stock ^"- Partieb to 
 
 r O J SUITS AFFECTINO 
 
 company authorizes all suits on behalf of the company against Febsons having 
 
 ^ *' I •' ^ aCommunittof 
 
 any person to be prosecuted in the name of the chairman ; Intrrest. 
 and in all proceedings in which it would have been necessary gin ^^ ^ ^^^^^^ 
 to state the names of the shareholders, it is made sufficient to ^a^y "a^nsTa 
 state the name of the chairman only ; the act does not autho- member. 
 rize suits by the chairman against a member of the company, 
 but only against a stranger, without making the other mem- 
 bers parties. Macmahoti v. Upton, 2 Sim. 473. :• 
 
 for until then the goods were not bound by the judgment, and conse- 
 quently he would have no title to the discovery. Story Eq. PI. 257, 
 4th ed. Though plaintiff has an interest in the subject, yet if not 
 a property title to sue, demurrer lies. Want of interest in the subject 
 of suit, or of fllle to institute it, are objections to bill, to any kind of re- 
 lief, or for discovery merely. Mitf. 156-7, cited Story's Eq. PI. } 260-1. 
 There must also be sufficient averments to show that defendant also 
 has an interest in the subject matter, and is liable to answer to plaintiff 
 therefor. Milf. 160. For plaintiff may have interest in the subject 
 and right to sue, yet have no right to call on d -fendant. This may be 
 for want of privity between them. Story, J 262. 
 
 So if the right is founded on defendant having notice, it musf be 
 charged directly, else it is not matter in issue on which the court can 
 act, and if the notice is to be proved by confessions to witnesses, it 
 seems proper, and as decided in England, indispensable to give on 
 the bill dates of same and names of witnesses. Id. ^263, and see 
 264. The rule is now established in England, that if bill relies on 
 confessions, conversations or admissions, written or oral, as proof of 
 facts charged, as for example fraud, what such confessions, &c., must 
 be, must be expressly charged, and to whom made, else the proof is 
 inadmissible. The ground is, that otherwise defendant may be taken 
 by surprise and entrapped, since he cannot know that any such evi- 
 dence is intended, as the interrogatories put by plaintiff to witnesses 
 are not made known to him. But the doctrine is denied in Smith v. 
 Burnham, 2 Sumner's R. 612, and held that it is the generally received 
 impression in America, that it is only necessary as to the facts to be put 
 in issue to charge the facts in the bill, but not to state all the materials 
 of proof and testimony by means of which those facts are to be sup- 
 ported. The authority of Hallv. Mallhij, is not of sufficient authority 
 for the doctrine. And the cases of Whetley v. Martin, 3 Beavan's R. 
 226, and Graham v. Cluse, Id. 124, are very much qualified by V. C. 
 Wigram in Malcolm v. Scott, 3 Hare R. 39, 63. Story, { 265, a. 
 
 This is the principle on which the insufficiency of ambiguous state-
 
 408 NOTE ON PARTIES. [S. VIL 
 
 Mi'iTs^AFPECTiNG Where the majority of the proprietors of a company incor- 
 Pbrbons HAVING Doratedbyact of parliament, at a special general meeting 
 
 A Community OF ^ •' * ' i o o 
 
 Interest. assembled, are empowei'ed by the act to institute proceedings, 
 Biiioftwomem- ^^^ ^^ them Cannot file a bill on behalf of themselves and 
 porated"°om°ai "^^'^^^^ against the directors, impeaching transactions which 
 ny, on behalf of may possibly be regarded by theot her proprietors as benefi- 
 others. cial to the company. Foss \.HarboUle, 2 Hare, 461. 
 
 ments has been put. The title must be stated with sufficient particu- 
 larity and detail to enable defendant to meet the case upon some 
 definite issue. lb. 
 
 So general certainty is sufficient in equity pleadings, though general 
 charges in a bill, unaccompanied by specific acts of fraud error or ac- 
 count, &c., is insufficient, yet it does not follow that plaintiff mu&t set 
 forth all the minute facts ; the general statement of a precise fact is 
 often sufficient and the circumstances to confirm or establish it need 
 not be, but often are, charged, for they more properly constitute matters 
 of evidence than of allegation. Chitty on PI. J 261-3-4. 
 
 It is a general rule, that what is essential to plaintiff's rights, and 
 necessarily within his knowledge, must be alleged positively and with 
 precision. Story Eq. PI. 5 255. 
 
 Even when the fact rests within the knowledge of the defendant, if 
 it constitute a material allegation in the bill, and is the foundation of 
 the suit, it must be clearly stated. Id. § 256. 
 
 But by the rule of the late court of chancery in New- York, facts 
 might be alleged positively, or on information and belief, and the statute 
 was framed to meet such mode of allegation, that is, that the bill was 
 true of his own knowledge except such matters as were stated on in- 
 formation or belief, and of those that he believed them to be true. By 
 the new code of procedure, the plaintiff states his case in his com- 
 plaint in plain language, without any other guide as to the nature 
 of his averments in point of positiveness. All he has to swear to is 
 his belief. Code, tit. 12. 
 
 The bill should not be what is technically termed multifarious. Mitf^ 
 181. Story, J 271, That which appears in Mitford under demurrer is 
 transferred by Story under bills. 
 
 Several judgment creditors may unite in one bill against their com- 
 mon debtor and his grantee to remove impedi.ments, for the fraud in 
 such case affects all and they may j ^intly sue, and all the defendants 
 are implicated in degrees and proportions and may be jointly sued. 
 Brinkerhoff v. Brown, 6 Johns. C. R. 130 ; Ch. Kent, id. 157, says, " the 
 principle to be deduced from these cases, is that a bill against several 
 must relate to matters of same nature, and having- a connection with
 
 S. VII.] NOTE ON PARTIES. 408 
 
 2. Persons suing and being sued on behalf of themselves and ^J'ts affe'^Jg 
 others, where there is no statutory mode of suing or defending. — ^c"oMMUNi*/y uf 
 " It is the duty of the court to adapt its practice and course of ij^ii^^i^i/ 
 proceeding, as far as possible, to the existing state of society, Duty of meeting 
 and to apply its jurisdiction to all those new cases, which ^^ the^lftere^d 
 from the progress daily making in the affairs of men, must con- "'"^ °' society, 
 tinually arise ; and not, from too strict an adherence to form 
 and rules established under very different circumstances, de- 
 clineto administer justice, and to enforce rights for which *' 
 
 there is no other remedy." Lord Cottenham, C, in Taylor v, 
 Salmon, 4 My. & C 142. 
 
 each other, and in which all the defendants are more or less concerned, 
 tlioiigh their rights in respect to the general subject of tiie case may 
 be distinct." So in Fellows v. Fellows, 4 Cow. R. 682 ; S. T. 9 Paige, 
 595, 60 ; see also 5 Id. 65 ; 1 Sandford, 366. Story Eq. PI. 5 286, n. 2, 
 says, without meaning to question the doctrine in 6 Johns. C. R. and 
 4 Cow. R., it may be doubted whether there are any English authori- 
 ties that fully carry out the proposition or are easily reconcilable. 
 
 If one of two having common interest in the relief sought against 
 a joint contract (as where one was a surety and the other a principal to 
 an usurious note, and the bill was filed by the surety against the holder 
 for usury to restrain him from proceeding at law on the note, and the 
 principal or maker of the note being made also defendant, to which 
 the holder put in a special demurrer, on ground that the maker of the 
 note was made defendant instead of complainant) the court held that 
 if one of two having a common interest, refuses to join in filing a bill, 
 the other may make him a defendant alleging in the bill as an excuse 
 for doing so that he would not consent to join as a complainant, or 
 stating some other excuse for making him defendant instead of com- 
 plainant. If the bill does not state such excuse the other defendants 
 may demur, but as it is an objection of form, the bill may, of course, be 
 amended on the usual terms. Morse v. Hovey and another, 9 Paige R. 
 198, 197. 
 
 A bill in Massachusetts under Revised Statutes, c. 44, by a creditor 
 against an insolvent bank, is substantially a bill for the benefit of all 
 creditors, and plaintiff" has no power to discontinue it. ^llas Bank v. 
 Ts'ahanl Bank, 23 Pick. 480. 
 
 Where separate judgments and unsatisfied executions were against 
 drawer and endorser of a note, it seems, one creditor's bill, may without 
 the risk of demurrer for multifariousncst;, as both judgments are for 
 same debt, even where some costs were in each judgmept for uhicii
 
 409 NOTE ON PAJITIES. [S. VII. 
 
 vii. Parties TO i« The court in conformity with the principles of equity has 
 
 SUITS AFFECTING *" . „ 
 
 PERSONS HAVING adoptcd 3 pencral rule, not to dispose of any matter, not to 
 
 ACoMMUNITyOF TO , T i • r > 
 
 Interest. bind any man's interest, or make any declaration or any man s 
 ^-^V*^^"^ right in his absence. The complication of human affairs has, 
 
 Doctrine of re- o ^ _ 
 
 presentation. howevcr, become such, that it is impossible always to act 
 strictly on this general rule. Cases arise in which if you hold 
 
 the defendants in the other were not liable, be filed against both (show- 
 ing to excuse costs that the endorser has assets over $100.) but 
 the judgment creditor is not bound to file his bill against them jointly. 
 If, however, he unnecessarily pursues the endorser separately, when 
 he knows or has reason to believe the maker has ample means to pay, 
 and that his property might be reached by a joint bill against both, he 
 will not, it seems, be allowed his costs of the separate bill, Austen et 
 al. V. Figueira, 1 Paige R. 56, 58-9. 
 
 A bill to enforce a trust created, as it. may be for the benefit of 
 Parties. Credi- . . ,,,..,,. ■ , , , 
 
 tors. General tbird persons, they being certain schedulfed creditors, it was held 
 praicip e,a par- ^^^^ ^jj ^^^^ ^^.^^ ^^ jj. ^^^ ^^^^^ ^^ brought by one, it be f t the benefit 
 
 of all. 
 
 It is true that a creditor whose remedy at law has been exhausted, 
 may in certain cases, file a bill for his own benefit only, and without 
 making other creditors standing in the same situation parties. But 
 when he seeks to carry into eflcct an assignment in trust for the 
 benefit of creditors, and to obtain his proportion of the trust fund, he 
 is bound to make all the creditors parties; or some of tliC creditors 
 may sue in behalf of themselves, and the other creditors who may come 
 in and obtain satisfaction of their demands equally with the plaintiffs 
 in the suit. And if they decline to close they will be excluded from 
 Jhe benefit of the decree, and will neverthele.-s be bound by the acts 
 done under its authority, (citing Mitford PI. 135; Edmenston v. Lyde, 
 1 Paige, 637, and other authorities.) The form of proceeding, while it 
 prevents delay and the multiplicity of suits which are never to be en- 
 \ couraged, furnishes the court at once with the means of administering 
 
 equal justice to all parties interested. Bryant v. Russel, 23 Pick. R. 
 Mass. 522-3, 508. 
 
 A bill for injunction and relief against judgment at law; a plea of 
 judgment in law supported by answer if not replied to, will be consid- 
 ered as true on argument. • Cammann v. Ex'r of Trapiagan, Saxton 
 Ch. R. (N. J.) 30, 28. 
 
 While care must be taken to bring all proper parties before the 
 
 rioueness. court, equal care should be taken that none are brought there whose 
 
 rights are not to be in some way bound by the decree that may be made.
 
 S. VII.] NOTE ON PARTIES. 409 
 
 it necessary to brine before the court every person having an ^"- P^iTiee to 
 
 •/ O J tr O SUITS AFFECTING 
 
 interest in the question, the suit could never be brought to a persons having 
 
 '■ . ° A Community or 
 
 conclusion. The consequence would bo that if the court ad- 
 hered to the strict rule there would in many cases be a denial 
 of justice. This has induced the courts to sanction a ralaxa- 
 
 So too, while the court will, for sake of avoiding multiplicity of actions, 
 take cognizance of suits in which many rights having reference to one 
 subject matter are united, it must be careful not to admit several plain- 
 tiffs to demand by one bill, several matters perfectly distinct and un- 
 connected. The rules of pleading in a court of equity are not so 
 technical and precise as in the courts of law. The general powers 
 of this court and its peculiar modes of administering relief, authorize 
 and require a greater degree of liberality than would be expedient in 
 the courts of common law. Still when principles have, by repeated 
 adjudications, become setihd, and especially when, they are founded in 
 justice and the fitness of things, it is qui e as important that those prin- 
 ciples should be preserved in this as in any other court. Marselis et 
 al.v. The Morris Canal tf- Bankinu: Co., Saxton Ch. R. (N. J.) 35, 31. 
 When a number of persons claim one right in one subject, one bill 
 may be sustained to put an end to suits and litigation. Idem. 36. 
 
 The cases w here unconnected parties may join, are where there is 
 one common interest in them all centering in the point in issue. Id. 36. 
 Lord Redesdale, in Whaley v. Dawson, 2 Sch. & Lef. 367, held this 
 principle, where there was a general right claimed by the bill covering 
 the whole case, the bill would be good though defendants had separate 
 and distinct rights ; but if the subjects of the suits were in themselves 
 perfectly distinct, a demurrer would be sustained. Id. 36, 37. 
 
 In Coop. Eq. Pi. 182, the rule is, the court will not permit several 
 plaintiffs to demand by one bill several matters perfectly distinct and 
 unconnected against one defendant, nor one plaintiff to demand several 
 matters of distinct natures against several defendants. Id. 37. The 
 principle there laid down in Cooper is the correct one. Id. 38. 
 
 A bill by sureties of custom-house bond paid by them to be substi- 
 tuted for the obligees in e.ich bond, and to settle their rights to priority 
 out of the principal debtor's esta'e, all perrons standing in like situa- 
 tion with complainants should be parlies, or the bill should be filed in 
 behalf of complainants and all others who were sureties on bonds 
 given by the debtor for duties and paid them, so as to be entitled to be sub- 
 rogated to the ri-hts and remedies of the United States against the as- 
 signed fund. Dias ei al. v. Bouchard Ex'r and U. S., 10 Paige R. 
 447, 456-6.
 
 409 NOTE ON PARTIES. [S. VII. 
 
 VII. Parties to jJ(,jj ^f jj^g rule. And accordingly they have said, if we can 
 
 SUITS AFFECTING b J J 
 
 Pebbons HAVING be Satisfied that we have before the court persons whose inter- 
 
 aCommunityof _ '■ 
 
 Interest. ests are the Same as the interests of those who are absent, we 
 will be content to hear the cause upon the argunnent of such 
 persons. And if we are then satisfied that the case has been 
 fairly and honestly pi'esented, we will order the distribution 
 of the fund on the representation of the persons present," but 
 without binding the absent parties, so far as to cut them off 
 from all chance of correcting any error which in consequence 
 of their absence may have been made to their prejudice. 
 Lord Langdale, M. R., in Powell v. Wright, 7 Beav. 449, 450. 
 See also his Lordship's remarks in Richardson v. Hastings, 7 
 Beav. 323. 
 
 The adjudication in the absence of some of the persons in 
 these instances does not depend upon the fact of there being 
 any actual representation of the absent persons. For they 
 may be perfectly ignorant of the proceedings : and in case 
 those who are brought before the court are defendants, they 
 are selected by the plaintiff, and not by the absent persons. 
 " It is a rule of necessity or convenience ; and nothing is more 
 vague : for the court is under the necessity of considering the 
 circumstances of each case and the degree of difficulty in the 
 proceeding." — The fact would seem to be, that there is no ac- 
 tual representative existing as a ground for the adjudication in 
 the absence of persorfe interested ; but that there is a virtual 
 and constructive representation for the purposeof the adjudica- 
 tion, as the result of considerations of necessity or convenience 
 and community of interest. Necessity or convenience, com- 
 bined with community of interest, and not representation, is 
 the criterion for deciding whether such adjudication shall take 
 place. See Powell v. Wright, 7 Beav. 446, 447, 450, and 
 Smart v. Bradstock, 7 Beav. 501. 
 Mode of treat- Since the rule as to dispensing with the presence of per- 
 ]ect.° ^^ *" sons as actual parties on the record is so " vague," and the 
 " court is under the necessity of considering the circumstan- 
 ces of each case," it will obviously be highly desirable for the 
 safe guidance and the convenience of the practitioner, to in- 
 corporate the material circumstances of each case into specific 
 placita, rather than to state propositions couched in more 
 general terms. This remark, indeed, applies with more or
 
 S. VII.] NOTE ON PARTIES. 410 
 
 less force to the whole subject of equity pleadings ; but it is yj.',/*"jt!.j° 
 peculiarly applicable to the subject of parties, and perhaps i'ersons hamno 
 
 * . .. .. A COMMlMTy O? 
 
 most especially to that part which is comprised in the present Intkuist. 
 section. 
 
 Where there are numerous appointees (thirty-seven for in- Appointees re- 
 
 ^ , f. T . presenttd. 
 
 Stance) they may be represented as defendants to a suit by 
 some on behalf of all. Milbank v. Collier, 1 Coll. 237. 
 
 A bill may be maintained by a mortgagee on behalf of him- g/nted?'^"^^^'^^ 
 self and all other creditors of a deceased mortgagor. Skeij v. 
 Bennett, 2 Y. & C. Ch. C. 405. In like manner the assignee of 
 a specialty creditor may file a bill on behalf of himself and all 
 other creditors for the execution of the trusts of an act of par- 
 liament providing for the payment of debts out of real estates. 
 Batten v. Barfitt, 2 Y. & C. Ch. C 34'3. And a bill to carry 
 into execution the trusts of a deed of trust for the payment of 
 joint and separate debts, may be filed by a separate creditor 
 of one debtor, on behalf of himself and all other the joint and 
 separate creditors, where it appears from tlie deed that they 
 are very numerous, without making them personally parties, 
 although they have all executed the deed. Wdd v. Bonham, 
 2 S. & S. 91. 
 
 Where trustees of an estate for the improvement of a town inhabitant* of a 
 
 ^ town repreient- 
 
 are empowered by act of parliament to levy a rate in case the b'^- 
 rents of such estate prove deficient for that purpose, an infor- 
 mation and bill may be filed by some of the inhabitants on 
 behalf of themselves and the others, against the trustees, for 
 an account and for an injunction against the rate. Att. Gen. 
 V. Heelis, 2 S. & S. 67. 
 
 Again, where two members of a club have possessed lliem- Meniber* of » 
 
 11- ^ • ■ r '^^^^ repreient- 
 
 seives 01 property belongmg to the club, and it is ffjr the com- ed. 
 mon intei'est of the club that this property should be brought 
 within the control of the governing body ; a bill may be filed 
 by one member on behalf of himself and all others, except the 
 defendants, for that purpose alone, without determining any 
 thing respecting the distribution thereof when brought within 41X 
 
 the control of the governing body; but leaving it open to fu- 
 ture litigation in that respect ; and this will be the case, even 
 where the club has been dissolved, but its affairs have not 
 been wound up. Richardson v. Hastings, 7 Beav. 323. And 
 where funiituro belonging to a club is vested in a trustee, up- 
 
 35
 
 411 
 
 NOTE ON PARTIES. 
 
 [S. VII. 
 
 vii. e^rties to 
 suit^Rtecti.vg 
 Persons having 
 aCommunitv of 
 Interest. 
 
 Newspaper pro- 
 prietors repre- 
 sented. 
 
 Next of kin re- 
 presented. 
 
 Pew holders re- 
 presented. 
 
 412 
 
 on trust to sell, and to repay the amount subscribed by certain 
 members, parties to the deed, and borrowed of other persons, 
 also parties to the deed, for the purchase of the furniture 
 and to pay the surplus to the committee for the benefit of the 
 club, a bill may be filed against certain members of the com. 
 mittee who have improperly sold the furniture and retained 
 the proceeds, by one of the subscribing members on behalf of 
 himself and all the other members of the club, other than the 
 defendants, instead of making the parties to the deed or the 
 other members of the club actual parlies to the suit. Rich- 
 ardson V. Hastings, 7 Beav. 301. 
 
 But where twelve out of thirty-eight proprietors of a news- 
 paper file a bill on behalf of themselves and all other proprie- 
 tors, except the defendant, and it is not perfectly clear that the 
 suit is for the benefit of all the proprietors, and the defendant 
 insists, in his answer, that the other proprietors should be made 
 parties, and alleges that the suit had been commenced without 
 their sanction, and contrary to the wishes of several of them, 
 the court will order the cause to stand over, with liberty to 
 amend by adding parties. Bainbridgev. Burton,2'Bea,v.539. 
 When the object of a suit is to determine the question of 
 the right to a residue as between the next of kin as a class 
 and a person claiming under a will, and not to distribute a re- 
 sidue, it is sufficient if some only of the next of kin are par- 
 ties. Caldecott v. Caldecott, Cr. & P. 183. And in cases 
 where next of kin are very numerous, and the property is 
 small, and the questions are such that no reasonable doubt can 
 be entertained respecting them, the court will make a decree 
 adversely td them, though but one of them, having the same 
 interest as the rest, is a party to the suit. Bunnct v. Foster^ 7 
 Beav. 540. And so where the next of kin and their repre- 
 sentatives are numerous, and there are no representatives of 
 some of them who have died, and the greater portion (five- 
 ninths, for instance) of the interest of the next of kin is repre- 
 sented in the suit, the presence of the others will be dispensed 
 with. Harvey v. Harvey, 4 Beav. 215. 
 
 Again, a bill may be filed by two persons on behalf of them- 
 selves and all other persons (except the defendants) who at 
 the time of an alleged breach of the trust upcni which a church 
 is held, were, or at the time of the filing of the bill are, or are
 
 S. VII.] NOTE ON PARTIES. 412 
 
 entitled to be, holders of seats or pews in a church, or voters ^'"- Partjes to 
 
 ^ BniT8 AFFECTING 
 
 at the election of a minister, where the object of such bill is to Persons having 
 
 , . '' Ti^. • A Community OF 
 
 obtain relief in respect of such breach of trust, milligan v. interilst. 
 Mitchell, 3 My. & C. 72. * V.-^^V^^^ 
 
 One of a numerous class of residuary legatees twen tysix Residuary lega- 
 
 /•• \.iii 1 -T iiif>r>i- tees represent- 
 
 lor instance) will be also permitted to sue on behalf of hun- ed. 
 self and all others entitled as residuary legatees. Harvey v. 
 Harvey, 4 Beav. 215. 
 
 So a bill may be filed, even during the existence of the part- shareholders re- 
 
 * . presented. 
 
 nership, by some of the shareholders of a numerous company, 
 on behalf of themselves an 1 the others, except the defendant, 
 for the realization of their common assets, and for the appli- 
 cation thereof to their legitimate purpose. Wahcorth v. Hott, 
 4 M. &C. 619. 
 
 Indeed, a bill may be filed by an individual shareholder in 
 a numerous company, on behalf of himself and the majority 
 of the shareholders, against the company and a certain num- 
 ber of the shareholders and directors thereof. Preskm v. 
 Guyon, 5 Jur. 146, V. C. E. 
 
 And one of the shareholders of a canal is entitled to file a 
 bill, on behalf of himself and the other shareholders, against 
 the commissioners appointed for putting into execution the 
 Act under which the canal was made, to set aside an agree- 
 ment entered into by them contrary to the provisions of thp 
 Act : for a bill to enforce the due exercise of the powers ves- 
 ted in the commissioners by the Act, and to avoid a breach of 
 trust, must be intended to be in its nature beneficial to every 
 shareholder. Gray v. Chaplin, 2 S. & S. 267. 
 
 So where a few of the partners in a numerous dissolved 
 company have been appointed trustees to wind up its affairs, 
 they may sue on behalf of the company to recover a debt. 
 Gordon v.Py?n, 3 Hare, 223. 
 
 And a bill to set aside a policy may be filed by the direct- 
 ors of an insurance company who signed the policy, on behalf 
 of themselves and all other shareholders without making the 
 Other members of the board of directors, by whom the affairs 
 of the company are managed, parties to the bill. Bather v. 
 Walters, 8 Beav. 92. And a bill may also be filed by the trus- 
 tees who are also some of the directors of an insurance com- 
 pany, against the other directors, who are also shareholders
 
 413 NOTE ON PARTIES. [S. VIL 
 
 VII. Partiksto of the company, and against the trustees of another company, 
 
 SUITS AFFECTING .^' ,. °, ,, ,, -li n 
 
 PERSONS HAVING to Set asule a policy effected by tlie latter with the nist-men- 
 
 aCommunitvof . , . , 1 U ..1, 
 
 Interest. tioned company : and it is not necessary to make the other 
 members of the respective companies parties, where they are 
 very numerous, and where the bill states that their names 
 and places of abode are unknown to the plaintiffs. Fenn v. 
 Craig, 3 Y. & C. 216. 
 
 If a person files a bill against a railway company, it is suffi- 
 cient to make the provisional committee and directors parties 
 to the suit, if they all oppose the claim of the plaintiff iw toio, 
 and the plaintiff alleges that the number of the shareholders 
 is so great, and the shares so fluctuating, that he cannot make 
 them parties to the suit. Parsons v. Spooner, 15 Law J. 155, 
 
 V. c. w. 
 
 And if the managing committee of a railway company, hav- 
 ing monies in their hands applicable to the discharge of liabili- 
 ties of the company, pay off the whole or a part of a debt, 
 due from the company, and then the person to whom such 
 debt is due brings an action, as a trustee for the company, 
 against a shareholder for the amount of such deht, the court 
 of chancery will restrain the creditor and the committee from 
 prosecuting such action or any other action against such 
 shareholder, and from disposing of the assets except in pay- 
 ment of the liabilities of the company; and the rest of the 
 shareholders need' not be parties, where the bill alleges that 
 they are very numerous, and that their interests are identical 
 with those of the committee. Levns v. Billing, 10 Jur. 851, 
 V. C. E. 
 
 Where a bill is filed by a few shareholders of a very nu- 
 merous unincorporated company, on behalf of themselves and 
 all other shareholders, except the defendants, seeking to be 
 relieved from the payment of certain calls which are alleged 
 to have been fraudulently made, but have been paid up by 
 the other shareholders, and for an account and dissolution of 
 the company, it is not sufficient to make^ the directors, trus- 
 tees, and secretary, defendants ; for they are bound to have 
 an equal mind towards the plaintiffs as well as the other 
 shareholders, and. cannot properly be considered as represen- 
 tino- an opposition. It is necessary that a suffic ent number 
 of the oher shareholders should be made defendants, in or-
 
 S. VII.] NOTE ON PARTIES. 413 
 
 der to discuss the questions freely and unrestrainedly. Rich- ^Vtb^ajfe'ctinq 
 ardson v. Larpent, 2 Y. & C, 507. J'ebsons having 
 
 And a suit cannot be instituted against the committee by Intf.rkst. 
 three of the partners in a numerous trading company alone, 
 and not on behalf of themselves and the other partners, upon 
 a point in which all the partners are materially interested ; 
 ^s, for example, for the liberty of inspecting the documents 414 
 
 of the company, which might be prejudicial to the company, 
 by disclosing its affairs to partneis connected with a rival 
 company, Baldwin y. Lawrence, 2 Sim. & Slu. 18. 
 
 Where a suit is instituted for the payment of a sum of mo- 
 ney, in the nature of a debt, due to the whole body of the 
 shareholders, of a company, the suit may be instituted by one 
 of the shareholders on behalf of himself and all the other share- 
 holders. And in such case, although the payment be claim- 
 ed from the directors, who are made defendants for that pur- 
 pose, it is correct not to except them out of the number of the 
 shareholders on whose behalf the bill is expressed to be filed; 
 because they are not sued as shareholders, but as directors ; 
 and, in their character of shareholders, they would be entitled 
 to participate in the fruits of the suit. Mocatta v. Ingilhy, 
 5 Law J. (N. S.) 145, M. R. 
 
 And in like manner where two or more shareholders in a 
 numerous joint-stock company sue on behalf of themselves 
 and all other shareholders, and one of the shareholders has 
 acted as agent of the company, the plaintiffs may sue on his 
 behalf in his character as shareholder, although they also 
 make him a defendant in his character of agent. Taylor v. 
 Salmon 4 My. & C. 134 ; Robinson v. Smith, 3 Paige's Ch. 
 R. 33 :i ; Walker v. Deveraux, 4 Paige's Ch. R. 229. 
 
 The court will not restrain the registration of a deed of as- 
 signment of shares in a railway company, on a bill filed by 
 a shareholder on behalf of himself and the other shareholders 
 without the shareholders whose shares are assigned being 
 made parties to the suit ; for as the suit tends to prolong 
 their liabilities, they ought to be parties. Grcathead v. The 
 London and South-Western Railway Company, 10 Jur. 343. 
 
 It will have appeared from the preceding cases, that " in notneccwwyto 
 order to entitle a plaintiff to sue on behalf of himself and all repreBenuUon. 
 others who stand in the same relation with him to the subject
 
 414 NOTE ON PARTIES. [S. VIL 
 
 vii. Pahties to of the suit, it must appear that the relief sought by him is in 
 
 SUITS AFFECTING . I r> • O ^ 
 
 Persons HAVING its nature beneficial to all those whom he undertakes to re- 
 
 A Community OF , ^ ^ ■ ,~i /-<t t ^ ci o c^ 
 
 Interest. present. (bu" J ohn Leach, in uray \. L/iaphn, 2 b. & o. 
 272.) But so long as the relief must be beneficial to all, it is 
 not necessary that all should approve of the suit; on the con- 
 trary, in that case it would seem that in general it will not be 
 a valid objection to a suit so constituted, even if the majority 
 disapprove of the suit; for if all could not be personally made 
 parties on account of their number, it would amount to a de- 
 nial of justice to those who were desirous of suing, if the dis- 
 approbation of the others were an effectual obstacle to a suit 
 
 415 °" their behalf. And indeed it might open a door to a fraud- 
 ulent connivance on the part of some parties interested and 
 transactions which are injurious to the rest. 
 
 Hence, where acts are necessarily injurious to the common 
 interest of a large number of persons, a few of them may in- 
 stitute a suit for relief on behalf of themselves and the rest, 
 although the majority approve of those acts, and disapprove of 
 the institution of the suit. And in this case, as distinguished 
 from the case of the whole body concurring in an abuse, the 
 attorney-general need not be a party to the suit. Bro7nley v. 
 Smith, 1 Sim. 8. 
 
 Indeed a bill may be filed by a member of a numerous in- 
 corporated company, on behalf of himself and all other 
 members of the company, except the defendants, to impeach 
 a transaction, although it was the act of a unanimous meeting 
 of the company, some of whom are not defendants, and are 
 consequently included in the number of those on whose behalf 
 the bill is filed. For the expression of suing on behalf of all 
 the other members is merely a mode of expressing that the 
 plaintiff sues in a general right. Preston v. The Grand Col- 
 lier Dock Company, 11 Sim. 327. 
 
 And where a bill is filed by some of the shareholders in a 
 rejected and abandoned railway scheme, on behalf of them- 
 selves and all other shareholders, except the defendants, who 
 were the provisional committee, and it alleges that the interests 
 of the shareholders, except the defendants, were identical with 
 those of the plaintiffs, and that none of them, except the de- 
 fendants, had interests adverse to or differing from those of 
 the plaintiffs, it is not demurrable for want of parties or for
 
 S. VII.] NOTE ON PARTIES. 415 
 
 misioinder, althouorh it prays for an account, and that certain Y"" "'-^"'f'^s ^o 
 
 •t ' o r J ' Suits AFFECTING 
 
 expenses improperly incurred may be paid by the defendants, Persons having 
 and not out of the deposits, and that the surplus of the depo- Interest. 
 sits, after payment of expenses properly incurred, may be ra- 
 tably distributed among the subscribers ; and although it states 
 that the majority of the shareholders sanctioned the improper 
 expenditure ; and that some of the shareholdei s, whose names 
 were unknown to the plaintiffs, had not paid any deposits. 
 Apperley v. Page, 10 Jur. 998, V. C B. But see Lund v. 
 Blanshard, supra, pp. 400, 401. 
 
 3. Suits in which there is no statutory mode of suing or defend- shareholders 
 ing, but all persons having a community of interest need not he '^P^"**^ ^" • 
 made parties, eiilier personally or hy representation. — Some of 
 the shareholders in a joint-stock company may file a bill for 
 there-payment of the deposits on their shares, on the ground 
 of fraud, without making the other shareholders parties, if 
 they allege that they are ignorant of the names of such other 
 shareholders. Blainv. Agar, 2 Sim. 289. 
 
 And to a bill filed against a director of a banking company A1.Q 
 
 by a purchaser of shares allotted to that director, praying that 
 the sale maybe set aside on the ground of fraudulent repre- 
 sentation made by the directors and their agents, the other 
 partners were not necessary parties. Stainbank v. Fcrnley, 
 9 Sim. 556. 
 
 And to a bill for the recovery of shares in a company, the 
 owners of the other shares, if not interested in the shares sought 
 to be recovered, are not proper parties. Turner v. Hdl, Tur- 
 ner V. Tyacke, and Turner v. Borlase, 11 Sim. 1, 16, 17. 
 
 Where a lessee of a mine, after selling shares thei-ein to 
 several persons as a mining company, subsequently sells the 
 entire interest therein to certain persons as trustees for a new 
 mining company to be formed, he receiving part of the consi- 
 deration in shares in such new company, and the sale is made 
 by him without the knowledge of a person who is one of the 
 shareholders in the original mining company, but afterwards 
 accounting to all the others ; that person may file a bill against 
 him, without making the trustees, or the other shareholders 
 in the original company, or the shareholders in the new com- 
 pany, parties to the suit, if the contest does not affect those 
 individuals or the corpus of the property, but only the lessee
 
 416 NOTE ON PARTIES. [S. VII. 
 
 SDiT.fju'F"cTiNG ^"^ ^^^ particular interest ; the shares being transferable by a 
 ^^n^^Jlr '"\''''' delivery of the certificates, and the bill seeking: a share of the 
 
 A Community OF •' ' . o 
 
 I^moRK8^^^ profits and purchase money received by the defendant from 
 the new company, or a transfer of a number of the shares 
 therein belonging to the defendant equivalent to the amount 
 of the plainliff's interest in the original company. Mare v. 
 Malachy, 1 My. & C. 559. 
 ed^iii°profit7dis- Where under an agreement a person is entitled to a share 
 pensed with. of the clear profits of a company, but the directors of the com- 
 pany are to have the exclusive management of its affairs, he 
 is not a necessary party to a suit respecting dealings between 
 the directors and a third party. For although he has an in- 
 terest in the ultimate profits of the concern, he has no interest 
 in any particular transactions, otherwise than as they affect 
 the general account on which the ultimate profits are shown. 
 Benson v. Hadfield, 5 Beav. 546. 
 Suit by trustees ^ guit cannot be instituted by trustees of a company alone, 
 and not on behalf of themselves and the other members for a 
 specific performance of an agreement for a lease to them, al- 
 though the agreement did not state that they were members 
 of the company. Douglas v. Horsfall, 2 S. & S. 184. 
 
 a community^ of ^' ^^^^^ ^'"' w'/i^c^ «^^ ^^0 belong to a Company OT class must he 
 interest person- personally made parties. — Some members of a numerous com- 
 
 ally made par- -^ -^ -^ 
 
 ties. pany or class may, as we have seen, institute a suit, on behalf 
 
 ^■*- ' of themselves and all other members, to have the accounts 
 
 taken in which they are jointly interested. 
 
 In the case of a But twenty creditors is not SO great a number that the in- 
 few creditors. "^ , , 
 
 convenience of making them parties should lead the court to 
 
 allow the interests of all to be represented by some of them 
 
 Harrison v. Stewardson, 2 Hare, 530. 
 Assignors of de- Again, the assignees of deposits on the shares in a joint 
 posisons ares. g^Q(.j. (.Qf^p^ny cannot sue on behalf of themselves and their 
 
 assignors ; but the latter, however numerous, must be parties 
 
 to the suit. Blain v. Agar, 1 Sim. 37. 
 All the share- ^^d where a bill is filed to have the company dissolved, 
 
 holders of a r j > 
 
 company, in a even thouffh its business may have ceased, or to have its affairs 
 
 Buit for a disso- ° •' 
 
 lution or for wouud Up, even though it had been previously dissolved ; it is 
 
 winding up their ^ =" , . . , 
 
 aflfairs. necessai'y that all the shareholder3,-if possible, should be per- 
 
 sonally made parties, however numerous they are, if their in- 
 terests may be conflicted. Decks v. Stanhope, 14 Sira. 57 ;
 
 S. VIII.] NOTE ON PARTIES. 417 
 
 Harvey v. Bignold, S Beav. 343 ; Evans v. Stokes. 1 Keen, vii. Parties to 
 
 _.„.,, TT • ^ rt ^r a'ti 1 Suits AFFECTINO 
 
 >i4 ; Kichardsonw Hastings. 7 iJeav. 301. And hence where PEBbo.ss having 
 a bill is filed by a shareholder in a company, praying for an intkrks 
 account and payment of his share, all the other shareholders 
 are necessary parties, because the bill in effect seeks a dis- 
 solution of the company. Ahrahamv. Hannay. 'IZ '6\m. 5^\. 
 
 A suit cannot be instituted by some of the members of an 
 insurance company, on behalf of themselves and the other 
 members, for winding up the affairs of the company, although 
 the members are so numerous that it would be utterly im- 
 possible to make them all personally parties to the suit. For 
 the object of the suit is to deprive persons of a right who are 
 not parties by cancelling their policies, which cannot be done 
 in their absence. Long v. Yonge, 2 Sim. 369. 
 
 5. Suits by an incorporated company, by its corporate name. 
 — Where a bill is filed, by an incorporated company agains' 
 the projectors of it tt) oblige them to account for the value of 
 shares appropriated to themselves without having paid the 
 full consideration, the individual shareholders are not neces- 
 sary parties ; for tlie transaction impeached is a transaction 
 between the projectors and the corporation, and not a tran- 
 saction between the projectors, as the owners of shares, and 
 the persons who purchased from them. The Society for the 
 Illustration, of Practical Sciences v. Abbott, 2 Beav. 571. 
 
 418 
 VIII. Parties to Copyright Suits. ,„„ „ 
 
 VIII. Parties TO 
 Copy BIGHT 
 
 The author of a work is a necessary party to a suit by the 
 publisher to restrain an invasion of the copyright, where no Author, 
 actual assignment has been made of the copyright, but only 
 an agreement to assign or dispose of it, and where, conse- 
 quently, the legal title to the copyright remains in the author. 
 Colburn v. Duncombe, 9 Sim. 151.
 
 418 NOTE ON PARTIES. [S. IX. 
 
 IX. Parties to IX. PARTIES TO SuiTS PERTAINING TO THE RELATION 
 
 bUITS PERTAIN- 
 ING TO THE RB- OF Debtor and Creditor.* (1) 
 
 lation of ^ ' 
 
 Debtor and 
 
 ^^^^S^^^:^«|^ 1. Annuitant. See Legatee. 
 
 Bank, in a suit ^' Assignee. See Debtor. 
 
 a°fha%e^^o"° 3. Bank of England.— \n consequence of the statute 39 & 
 
 stock. 
 
 See Sect. XIII. See note to p. 398. 
 
 (1) The meaning of the statutory provision as to judgment creditor 
 bills in New-York, and which was merely declaratory of a principle pre- 
 viously established in chancery, is that the judgment creditor must 
 make a bona fide attempt to collect the judgment debt on his execution. 
 And when the judgment is against several, the remedy by execution 
 against all, must be exhausted before bill filed ; except, perhaps, where 
 one of the defendants is a mere surety. But even in that case the 
 fact of suretyship, and an averment that the suit here was instituted 
 for the benefit of the surety and with his assent, should be stated in 
 the bill. As the judgment creditor may take out several executions 
 at the same time, the fact that defendants reside and have property in 
 different counties, need not delay him in the commencement of pro- 
 ceedings here. 
 
 If the j udgment debtor has a known and fixed residence in some county 
 in the state and property there, and if the judgment is in a court whence 
 execution may issue into such county, it must be done, and if not, the 
 neglect will be a good defence to the bill. Child v. Brace, 4 Paige 
 R. 315, 316, 309. 
 
 There are two classes of cases where a plaintiff is allowed to come 
 into this court for relief. In the one the issues of the execution gives 
 the plaintiff a lien upon the property, but he is compelled to come here 
 for the purpose of removing some obstruction, fraudulently or inequi- 
 tably interposed to prevent a sale upon the execution. In the other to 
 obtain satisfaction of his debt out of property of the defendant which 
 cannot be reached by execution at law. Back v. Burdett, 1 Paige R. 
 308, (quoted by V. C. in Child v. Brace et al, 4 Paige, 310.) 
 
 Where the bill has a mere general allegation as to the value of de- 
 fendant's property, and the result shows he had none, the bill will be 
 dismissed with costs. Sinets v. Williams, 4 Paige R. 364. 
 
 The judgment creditor m^ file a bill to remove a fraudulent or in- 
 equitable obstruction or embarrassment interposed to the lien of his 
 judgment and satisfaction of his execution. But the bill must allege 
 distinctly and specifically that there is land within the jurisdiction of 
 the court of law where his judgment was obtained, and that it is a lien 
 at law on the land, or if the property is personal, show execution issued 
 in the county where the property is and a specific lien thereon by ac-
 
 S. IX.] NOTE ON PARTIES. 418 
 
 40 Geo. IV. c. 36, the Bank of England ought not to be a ix. Parties to 
 
 o o Suits pertain- 
 
 party to a suit for the purpose of giving effect to a charge up- ing to the ek- 
 
 on stock. PerJcins v. Bradley, 1 Hare, 219. Debtor and 
 
 tual or constructive levy of the sheriff, and that the relief sought, if 
 granted, will be effectual, that is to enable him to pursue and obtain satis- 
 faction by means of the legal rights and remedies he is already entitled to. 
 Of course he need not show by return of execution unsatisfied, that he 
 has exhausted his remedy, for that execution may be the very instrument 
 of satisfaction after the court removes the impediment to its opera- 
 tion. And a judgment •creditor may file a bill in respect to his lien 
 on freehold estates without proceeding to execution, but not on lease- 
 hold and other personal property, for that exists only from the time 
 execution is lodged in sheriff's hands, p. 567-8. (Cites 1 Atk. on 
 Convey. 513.) 
 
 To entitle a judgment creditor to file a bill for the aid of creditor to 
 obtain satisfaction out of property not liable to be levied upon by rxe- 
 cution, he must show such execution returned unsatisfied. No state 
 of facts will now excuse it, since the statute requires such issue and 
 return. McElwain v. Willis ei al., in error on affirmation of chancery 
 decree. 9 Wend. 548,564, 567, 568, 659. Senator Tracy, in his opi- 
 nion on evidence of affirmance with which the court was unanimous, 
 {idem. 565,) traces the creditors remedy, and says that equity aids not a 
 creditor to a lien, for he trusts the debtor on his general credit, and 
 equity secures equality of distribution, not restriction. Therefore, the 
 mere fact of an assignment, fraudulent and collusive against creditors, 
 does not in itself entitle a siuL^le creditor to seek relief. Perhaps a bill 
 filed in behalf of himself and all the other creditors might be sustained, 
 (18 Ves. 82 ; 2 Johns. Ch. R. 296, cited.) But the present is not such a 
 bill. It is only after a creditor has obtained an execution at law, he 
 acquires a legal preference to the assistance of Chancery, for none but 
 execution creditors at law are so entitled. McDermutt v. S&ong, 4 
 Johns. Ch. R. 691. It is where a creditor has obtained an advantage 
 in legal diligence, and obtained judgment and execution unsatisfied that 
 he may ask the aid of chancery. There seems two classes of cases of 
 this kind: — 1. Where the debtor has property on which judgment or 
 execution is a specific lien, but which owing to fraudulent transfer, or 
 some other embarrassment wrongfully created, cannot be made opera- 
 tive, p. 565, 567. 2. Where the property is removed before the lien 
 obtained, or consists in choses of action or interest not liable to execu- 
 tion. In the latter class of cases there seems some doubt how far 
 English chancery interferes to assist a jiidifment creditor; tlie exist- 
 ence of the bankrupt law in that country rendering such interference 
 generally unnecessary, some early causes there show the exercise 
 of the power, although Edghill v. Ilayuiood, 3 Atk. often quoted in
 
 418 NOTE ON PARTIES. [S. IX. 
 
 Suits* p"rta7n° ^" ^'^*'^^** ?"^ ^'■"*^- — ^o a Supplemental bill for the lepay- 
 iNOT^o THE RE- ment of a sum of money improperly recovered on a bill of 
 Debtor and exchange, the person for whom, according to the allegations 
 V^^'V^^-^ of the original bill, the individual who recovered is a trustee, 
 fbiu 'of 'ex'-'°^ is a necessary party, and that, notwithstanding the 32d or- 
 change. der of August, 1841. Tinhus v. Peters, 5 Beav 253. 
 
 support of it, arose under peculiar circumstances, and later cases are 
 the other way, p. 565. But in New-York the principle was established 
 in chancery. Spader v. Davis, and Brinkerhoff v. Brown, 4 Johns Ch. 
 R., and it was confirmed by court of errors. Hadden v. Spader, 20 
 Johns. R. 554. 
 
 But it was settled by those cases that equity aid to enforce payment 
 from people on which the judgment creditor had no lien, or from its 
 nature could not have a specific lien, was not afforded until after exe- 
 cution unsatisfied. Whether actual return of execution hud been 
 required by the English courts, seems somewhat doubtful. The case 
 of Manningham v. Bolingbroke, cited in JVIitford Eq. PI. 115, and in 
 Cooper, 149. states, that though an execution be necessary, tl-e return, 
 of it nulla bona need not be shown; and in 3 Atk. 351, ante, the bill 
 seems to have been filed as soon as execution was put into sheriff's 
 hands. But here the cases were before the statute showed that such 
 return was necessary, on the principle that the right to come here for 
 relief, depended on the fact of the judgment creditor having exhausted 
 his legal remedies, (4 Johns. Ch. R. 671 ; 2 McCord's Ch. R. 416; 1 
 Paige R. 308,) and these cases show that before the statute, the cre- 
 ditor, to enforce satisfaction from property on which he had no specific 
 lien, must show in his bill that an execution on his judgment was re- 
 turned unsatisfied. And the statute requiring that the execution " shall 
 have been returned unsatisfied in whole or in part, to enable iiim to 
 file his bill, is only declaratory of an existing rule. Consequently if 
 the statute remedy be cumulative, the creditor, if relying on pre-exist- 
 ing power of the court, must still show execution returned unsatisfied. 
 
 By a demurrer, a respondent admits the allegations of the bill, but 
 he admits nothing more, for a demurrer confesses matter of fact only, 
 not matter of law, 1 Lord Raym. 18. He does not admit inferences or 
 deductions that do not follow necessarily from facts distinctly alleged, 
 and whatever is necessary to entitle the plaintiff to relief, must be al- 
 leged positively and with precision. Mitford Eq. PL, 41. See Senator 
 Tracy, in McElwain v. Willis, 9 Wend. R. 568. 
 
 A party seeking aid must show distinctly and unambiguously all 
 the facts necessary to entitle him to that aid. Shepard v. Shepard, 6 
 Conn. R. 37, cited ibid. In ordinary cases where complainant has
 
 S. IX.] NOTE ON PARTIES. 418 
 
 Where an estate is devised to trustees, upon trust for the ^^- pieties to 
 testator's widow for life, with power to sell the estate, if a «no to the us- 
 
 ' _ LATION OF 
 
 sale should be necessary for the payment of his debts ; the Debtor and 
 
 . If C'RKDITOE. 
 
 case is one in which the court, under the concluding words of V^^'V^*/ 
 the 30th order of August, 1841, will order the widow to be P*'"' ?^, .'"",'' 
 
 o » _' _ ma creditor's 
 
 made a party to a suit by a creditor. Hill v. Leclhrook, 6 Jur. suit. 
 1078. V. C. B. 
 
 a plain and adequate remedy at law, chancery will not interfere ; for 
 the jurisdiction it exercises as to lei,'al demand is merely auxiliary to 
 that of courts of law. It is in this character it sustains a bill of disco- 
 very to aid plaintiff in prosecution of his suit, or defendant in his de- 
 fence, prevent setting up an inequitable defence as an outstanding 
 term attendant upon tlie inheritance; and upon the same principle, 
 after a judgment which is a lien uptn land, the court will aid plaintiff 
 by removing a fraudulent assi;j;nnient, which is a cloud on the title and 
 prevents the plaintiff from entbrcing the lien of his judgment, or to 
 redeem a mortgage which prevents the sale of the property, as where 
 mortgagee is in possession, or the amount due on the mortgage not 
 being ascertained it prevents a fair sale upon the jui'gment. But in 
 cases of this kind the complainant must show distinctly in his bill that 
 the land is within the jurisdiction of the court of law where his judg- 
 ment was obtained, and that it is a lien at law on the laud. The like prin- 
 ciple is applied to personal property, and as lien on that is not by judg- 
 ment, plttintiff must show execution issued where the property is and 
 a specific lien by levy. As in both cases the aid is sought to enforce 
 a lien, it must appear by bill that the lien exists. Idem, 568, 9. 
 
 The owners of a short term of years in land, although they may 
 have the right to tile a bill to prevent the commission of future waste, 
 might not be the proper persons to claim compensation for that already 
 committed. Hawley et al. v. WoherUin, 5 Paige R. 524,622. 
 
 It is unnecessary to make an insolvent judgment debtor party in judg- 
 ment creditor's bill for satisfaction of the joint debt out of the equitable 
 interest, property and choses of the oti er joint debtor's defendants, pro- 
 yided it distinctly appear in the bill. If he is wholly destitute of pro- 
 perty the fact should be distinctly averred in the bill, positively or on 
 information and belief, so that defendant mny take issue thereon if he 
 please, in his plea or answer, and if complainant cannot make such 
 averment and sustain it by defendant's answer or proof, he should 
 make the oiher joint debtor party, if in the jurisdiction of the court. 
 If it do not so appear, or a sufficient excuse be shown for not making 
 him party, the other debtor may demur for want of parties. All the 
 judgment debtors may be parties, if eitlier or all collectively have to ex-
 
 418 NOTE ON PARTIES. [S. IX. 
 
 suiTr^rERTAiN^ ^" ^^^^*^^''*- — -A. creditor by mortgage and collateral bond 
 iNo TO THE RE- caHnot sue both as mortgagee and as bond creditor. And a 
 
 LATION OF • es O 
 
 Debtor and bond creditor cannot sue alone : he must sue on behalf of 
 
 Creditoii. 
 
 K^^''y^s>^ himself and all other bond creditors. White v. Hillacre, 3 Y. 
 fZMllfZl: & C. Eg. Ex. 597. 
 
 ceed $100, which could not be reached by execution at law ; and one of 
 them who is entirely destitute of property will Hot be entitled tests, un- 
 less he was unnecessarily compelled to answer, instead of taking the 
 bill as confessed against him. If one of the judgment debtors had not 
 been served with process in the suit at law, so that a decree here could 
 not reach his separate property, it may still be proper to make him a 
 party to the creditor's bill, so as the other defendants may claim contri- 
 bution against him, if they are compelled to pay the whole debt. Van 
 Cleefv. Sickles, 5 Paige R. 506-8, 505. 
 
 On a bill against directors of an iiitiependent New-Jersey bank, filed 
 by a judgment creditor on judgment had in New-Jersey to reach pro- 
 perty fraudulently converted by the directors, and alleging that said 
 bank had not property in New- Jersey or here, whereby the judgment 
 recovered against the bank, and certain of its directors, could be satis- 
 fied, it was held on demurrer, that the judgment, as appeared by the bill 
 itself, was unauthorized by the New-Jersey statute, the requirements 
 of which had not been followed in the service of process on some of 
 the individual directors against whom the judgment had been rendered, 
 and which as to them was absolutely void. Cunningham v. Pell el ah, 
 5 Paige C. R. 610-13, 607. 
 
 Apart from the defective form of the bill, complainant would be enti- 
 tled to relief on the ground that the directors of a corporation are lia- 
 ble to the parties injured for a fraudulent breach of trust. A joint 
 creditor on judgment against the corporation, or even a creditor at large, 
 is entitled to protection against fraudulent acts depriving him of the 
 means of collecting his. debt in the usual way against the corporation 
 itself. It is not necessary to make all the fraudulent directors parties 
 to a bill for satisfaction for a fraudulent breach of trust. This is an 
 exception to the general rule, that in a proceeding against trustees* all 
 must be made parties. If complainant seeks to change any of the 
 directors on ground of personal liability for the debts of the company, 
 pursuant to the act of incorporation, all the other directors liable to 
 the same extent, should be made parties so that a proper decree for 
 contribution may be made. In that case the corporation also, if in 
 existence and not entirely destitute of property, should also be a party, 
 so that -its funds may be fairly applied to the payment of complainant's 
 demand. 
 
 When, as in the above case, the personal representatives of one of
 
 S. IX.] NOTE ON PARTIES. 418 
 
 To a bill filed for carrying: the trusts of a creditors' deed 'X. Pakties to 
 
 . » , . Suits pebtain- 
 
 into execution, the scheduled creditors who have not execu- i'"*" to the re- 
 ted the deed need not be parties, Prosser v. Edmonds, 1 Y. Debtor asd 
 & C. 481. And creditors whose names are scheduled in a V^<V^^#/ 
 creditors' deed, but are not parties thereto, are not necessary Scheduled cred- 
 parties to a suit by a subsequent incumbrance, to have the 
 monies, out of which it was intended to pay such creditors, 
 
 the directors, were joined in the bill with the trustees under a marriage 
 settlement of such director, the bill was not objectionable for multifari- 
 ousness, the first tliat the account for the moneys, &c. of the bank fraud- 
 ulently abstracted by their testator, and the last that they may be com- 
 pelled to restore the funds of the bank that came into their hands as 
 trustees under such marriage settlement. But the corporation must 
 also be a party, whether the suit be by creditors or stockholders, the 
 principle is the same. If creditor could compel account for abstracted 
 funds, the corporation not a party, might after compel account. Though 
 the corporation is in another state, it may be proceeded against as an 
 absent defendan t. 
 
 If there are other creditors than complainant, they also should be 
 parties or the bill should be filed by cogiplainaflt in behalf of himself, 
 and all others standing in the same situation, to enable them to come 
 in under the decree, and to relieve defendants from the necessity of 
 accounting again to other creditors. 
 
 Where the judgment was joint on a joint debt and some of the de- 
 fendants were served with process, still the bill must be filed against 
 all, unless it aver that those not served, were mere sureties, or not 
 legally or equitably liable to contribute towards the debt, or insolvent, 
 or out of the jurisdiction. Commercial Bank of Lake Erie v. Meach, 
 7 Paige R. 448 ; see further creditors' bill against joint debtor, Austin 
 V. Figueira, id. 66; Commercial Bank of Lake Erie v. Meach, id. 448. 
 
 Judgment creditor's bill, whether it lies against lunatic, was a ques- 
 tion suggested in Copous v. Kauffman ei at., 8 Paige R. 588, 583, and 
 the chancellor was not prepared, he said, to say that a bill might not 
 be "framed so asto_reach property of a lunatic, which is actually under 
 control of his wife, so that complainant otherwise would be entirely 
 without remedy, unless he could obtain decree against him for the de- 
 livery of the property. 
 
 Plea in bar to judgmont creditor's bill, is good that defendant had 
 prgperty which might have been levied on, but was not by the othcer 
 who had the execution by consequence of collusion between them and 
 complainant in procuring execution to be returned unsatisfied. ,Thorn 
 V. Badger el al, 8 Paige, 130.
 
 419 NOTE ON PARTIES. [S. IX. 
 
 Suits ^"rtain" raised ; at least where they are very numerous, and the trus- 
 
 '""JtioTV' tees of the deed are parties to the suit. Powell v. Wright, ^ 
 Beav. 444. But in a case where a bill is filed by a creditor 
 against a debtor and the trustees for certain of his creditors 
 named in a schedule, and it prays payment of the plaintiff's 
 debt out of the estate vested in the trustees,- or out of the pro- 
 ceeds after payment of the debts of the scheduled creditors ; 
 and that an account may be taken of the trust estates and of 
 the receipts and payments of the trustees ; all the scheduled 
 creditors are necessary parties. Cocker v. Lord Egmont, 6 
 Sim. 311. 
 
 other creditors. ^^^ official assignee may recover from the representatives 
 of a former assignee, monies in his hands consisting of divi- 
 dends declared but unclaimed, without making any creditor 
 party to the suit; for the order for a dividend is not an appro- 
 priation of any particular part of the bankrupt's estate to any 
 particular creditor, but an order to pay a proportion of the 
 debts out of the bankrupt's estate. Green v. Weston, 7 Law 
 J. (N. S.) 67, L. C. 
 Author of a 6. Debtors and their sureties and personal representatives 
 
 ment ot debts, and assignees. — To a suit for the execution of a trust to sell 
 and to pay scheduled creditors out of the proceeds of sale, and 
 to pay over the surplus to the author of the trust, he is a ne- 
 cessary party, [Bedford v. Gates, 4 Y. & C. Eq. 21,) notwith- 
 
 All the judgment debtors it seems must be parties, but the objection 
 should be by demurrer or inserted in answer of the defendants. If 
 not, it affords no sufficient ground for dismissing bill at the hearing. 
 The only effect of an objection at the hearing would hi to order the 
 cause to stand over with liberty to complainant to file a supplementa 
 bill to bring the necessary parties before the court. Child v. Brace 
 et dl., 4 Paige R. 314, 309. 
 
 All the co-judgment debtors, defendants in the suit below, shouM be 
 made parties to the bill ; but if the objection be not raised by demurrer, 
 or insisted on in the answer, it uffords no sufficient ground to dismiss 
 the bill at the hearing. Child v. Brace et al, 4 Paige 314, 309. 
 
 A judgment against a foreign corporation, upon an attachment under 
 Naw-York Revised Statutes, is a proceeding in rem, and not suqii a 
 judgment as on which a creditor's bill lies on return of execution un. 
 satii-fied. The execution goes against that property only. Thomas 
 el al. v. The Mechanics' Bank, 9 Paige, 218, 216.
 
 S. IX.] NOTE ON PARTIES. 419 
 
 standing the 40th order, although the defendants sav that the ^^- parties to 
 
 . , , •' Suits pejiTain- 
 
 trust fund is insufficient for the payment of the creditors, and '■'•° i" t'i^ be- 
 
 LATIOX OF 
 
 therefore there will be no surplus for the author of the trust. Deuiob and 
 For if the trust fund should be distributed under the decree V^x'^v^^ 
 of the court, in the absence of the author of the trust, he or his 
 representatives might in another suit obtain a degree against 
 the trustees for an account, and the effect of ihe former decree 
 might be to give him or them the personal security of the 
 trustees, in substitution for the security of a fund in court. 
 Kimber w.-Ensworth, 1 Hare, 293. 
 
 By the 32nd order of Aug. 1841, " In all cases in which the Persons againet 
 
 ,..,„, .. I , -, I . , whom there is a 
 
 plaintiii has a jomt and several demand agaitist several per- joint demand 
 sons, 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 liable thereto; but tlie plaintiff may 
 proceed against one or moi'e of the persons severally liable." 
 
 This order does not apply to cases where there is only one 
 principal and one surety. Where several persons are liable 
 in diflerent characters, some as principals, and the rest as 
 sureties, then the order applies in such a way as to render it 
 sufficient to make one individual of each class a party. Lloyd 
 V, Smith, 13 Sim. 457. 
 
 To a suit by a surety against the obligee of a bond, for the 420 
 
 cancelling of a bond, and for an account of monies received Principal and co- 
 
 _ , surety, in a suit 
 
 in respect thereof, the principal and co-surety are necessary ty a surety for 
 
 • TT 7 7 t-. 1 the cancelling of 
 
 parties. Allan v. Hoidaen, 6 beav. 148. And to a suit against a bond and an 
 
 , . . , , 1 r» ,• 1 1 1 account. 
 
 trustees, seeking to set aside, on the ground ot fraud, a bond co-obiiu'or in a 
 
 /.., . ^1 1 ,, 111- .• bond, in a suit to 
 
 oi indemnity, and a release to them executed by their cestui set the same 
 que trust, a co-obligor in the bond, who was their solicitor, is 
 a necessary party. Colby v. Hawkins, 6 .lur. 1G2, V. C. B. 
 And to a bill praying payment of a debt by a surety, tlie prin- Principal debtor 
 cipal debtor, in resfjcct of a possible liability to contribute j", " surety. ^''°** 
 something to the surety, is a necessary paity although the bill 
 states that he had been released by the plaintift", with the con- 
 sent of the surety. Brooks v. Stuart, 1 Beav. 512. And in Peraonai rcprt- 
 
 •' _ ' ^ scntativo of • 
 
 like manner, in a suit by an obligee of a bond, it is necessary principal coob- 
 
 . » . . . ligor. inasuilby 
 
 that a personal representative of one of the principal obligors au obligee, 
 should be before the court, even where the bill slates that let. 
 ters of administration of his estate have not been taken out, 
 and that there are no assets out of which any j'art of the [)lain- 
 
 36
 
 420 NOTE ON PARTIES. [S. IX. 
 
 IX. Parties to tiff's demand can be satisfied. Musgrave v. Vick, 5 Law J. 
 
 Suits pertain- ° 
 
 ING TO THE RK- ( Q. S.) 150, V. C. 
 LATIO.N OF ^ _ 
 
 Debtosi and The assignee of an insolvent debtor is a necessary party to 
 V-^'^v'^Xk^ a bill by the insolvent for the delivering up of a bill of ex- 
 Assicrneo of an chango drawn by him prior to his insolvency, because it is 
 
 insolvent debtor _ ° .' -l _ •' 
 
 in a suit by the mimd facie the property of the assignee. Balls v. Strut, 1 
 
 insolvent. i-r -of-, i -, , 
 
 Assi-mes of an Hare, 146. But where an insolvent vendor, and another per- 
 
 insolvent ven- ... . r i 
 
 dor, in a suit to son, as his surcty, join m a promissory note tor the repayment 
 
 restrain an ac- „ _ , , . i • i 
 
 tion against his oi- a part oi the purchase money in case a good title cannot 
 ^ - ' be made, and where the surety files a bill to restrain an action 
 
 on the note, the assignees of the vendor are not necessary 
 parties, if the title is found good, or objections to it have been 
 waived or could be properly compensated. Musgrave v. New- 
 ton, 4 Law J. (N. S.) 223, V. C. and Lord Commissioner 
 Pepys. 
 
 7. Drawer of a hill of exchange. — The drawer of an accom- 
 modation bill is a necessary party to a suit by the acceptor 
 against the holder to have the bill delivered up to be cancelled. 
 Tenfold V. Nunn, 5 Sim. 405. 
 
 But the drawer of a bill of exchange, who has indorsed it 
 oyer for value, is not a necessary party to a suit by the ac- 
 ceptor against the drawer's indorsee, for relief against a fraudu- 
 lent indorsement by such indorsee, after payment of the bill 
 by the acceptor. Earle v. Holt, 9 Jur. 773, V. C. W. 
 Heir in a suit 8. Heir. — The heir of a deceased debtor is a necessary 
 Will. IV. C.104. party to a suit under the stat. 3 & 4 Will. IV. c. 104, for the 
 
 421 payment of his debts, by a sale of real estate devised by him. 
 Broivnv. Weatherhy,\Q^'iva.\25; overruling JVeeks-v. EvaTis, 
 
 Heir and person- 7 Sim. 546. And where a testator directs his debts to be 
 
 al representa- 
 tive, in a credi- paid out of his personal estate, and the deficiency to be made 
 
 up out of his real estate, and the executors will not prove, be- 
 cause there is no personal estate ; in such case, if a creditor's 
 bill is filed, administration and cum testamento annexo must be 
 taken out, and the administrator and heir at law, though an 
 infant, must be parties. Fordham v. Rolfe, Talm. 1. 
 Heir and devisee By the Stat. 9 Geo. IV. c. 33, s. 1, the real estate of British 
 
 of real estate iu/ .^t- • t -i -x c 
 
 India. subjects in India is assets in the hands or executors for the 
 
 payment of debts ; and hence the devisee and heir at law of 
 a debtor in India are not proper parties to a creditors' suit.
 
 S. IX.] NOTE ON PARTIES. 421 
 
 Story V. Fry, 1 Y. & C. Ch. Ca. 603; 11 Law J. (N. S.) >x. Pabt.e. to 
 
 "^ "^ ' ^ ' .Suits pertain- 
 
 373, V. C. B. ING TO THE BK- 
 
 T 7 »r< • • • /» lation of 
 
 9. Indorsee. — lo a suit by the last indorsee of a lost bill of Debtor and 
 
 , , r ^ 1 • Crf.ditob. 
 
 exchange, to recover the amount irom the acceptor, the pri- Vs^^'V'^^ 
 or indorsees need not be made parties. Macartney v. Gra- Prior indorsees 
 
 ^ '^ of a lost bill of 
 
 ham, 2 Sim. 28"), exchange, in a 
 
 . . . suit by the last 
 
 10. Legatees. — Where a person dies seised of real estate indorsee. 
 
 1-1 1 • 1 1 • 1. 1-1 • • 11 Legatees and an- 
 
 which was devised to him charged with annuities and lega- nuitants when 
 
 , . - . , , . prior encura- 
 
 cies, the annuitants and legatees ought not to be parties to a brancea. 
 suit for payment of his debts out of such real estate ; because 
 they are merely persons having incumbrances prior to his in- 
 terest. JParher v. Fuller, 1 Russ. & My. G56. 
 
 11. Partners. — Where an executor is a partner in a firm cxecu^tor,°in"'a 
 who claim to be entitled to retain assets in their hands in sat- to^! ^^ " "*' ' 
 isfaction of a debt which they allege to be due to them from 
 
 the testator, a creditor of the testator may sue all the partners, 
 wbere he charges that they all claim to retain the assets, be- 
 cause that amounts lo collusion between the executor and the 
 other jiartners, as it shows that they are all acting in concert. 
 Gedgev. Traill, 1 Russ. & My. 281. 
 
 12. Sureties. — When a bill is filed by a person claiming an Sureties named 
 
 . in a covenant to 
 
 annuity, against a person who has covenanted to pay it, and pay an annuity 
 to create a term in certain estates for securing the same, and 
 against a person who has obtained a decree in another suit, 
 on behalf of himself and other creditors named in a creditor's 
 deed whereby the estates were vested in trustees for the credi- 
 tors who should execute the deed, and against such trustees, 
 praying for an account, and a declaration of the priorities of 
 himself and the other incumbrancers, and a redemption of 
 such as were prior to his own, and liberty to go in under the 
 decree for what he should not be entitled to recover in prio- 
 rity to the trust deed; all the creditors, though numerous 422 
 (for instance thirty), that have executed the deed, are neces- 
 sary parties; but persons who have joined as sureties in the 
 covenant to pay the annuity arc not necessary parties. New- 
 ton V. Earl of Egmonl, 4 Sim. 574 ; 5 Sim. 13!). 
 
 Nor is a creditor, in enforcing a subsequent security, oblig- Surety in a bond. 
 ed to. make a person who executed a prior bond, as surety, a 
 party to the bill. Adams v. Thomjison, 6 Law J. (N. S.) 109, 
 JM. R.
 
 422 NOTE ON PARTIES. [S. X- 
 
 X. Parties to ^ PaRTIES TO SuiTS IN KESPECT OF AcTUAL OR CoN- 
 
 faUlTs IN RE- 
 
 SPECT OF Ac STRtCTIVE FrACD. (1) 
 
 TUAL OR ^ ' 
 
 Constbuctive 
 
 V.X'^Y'-is^ Where, through the negligence of a solicitor, a person is 
 Assignee of a enabled to commit and does commit a fraud, and afterwards 
 
 bankrupt who ... 
 
 committed a becomcs bankrupt, his assignee is a necessary party to a suit 
 
 against the solicitor. Greenwood v. Atkinson, 4 Sim. 419. 
 Limited admin- The, estate of a deceased executor is sufficiently represent- 
 
 istrator, in a suit . . . . t i l 
 
 charging a de- ed in a suit by an administrator appointed to attend, supply, 
 
 ceased execu- , . ■> r- i t i ..i i • .. 
 
 tor's estate with substantiate and confirm the proceedings, where the object 
 of the suit is only to charge such executor's estate with a loss 
 occasioned by him. ElUce v. Goodson, 2 Coll. Ch. 4. 
 Representative jhe representatives of a person who ioined in a fraud, but 
 
 of an insolvent ^ '■ '' _ 
 
 who joined in a jjed insolvent, without leaving any assets, is not a necessary 
 
 fraud. o- 
 
 party. Seddon v. Connell, 10 Sim. 79. 
 Representatives -p g jj seekinof to affect the personal assets of a testator, 
 
 of a deceased CO- o r 
 
 executor. j^jjg representatives of one of his executors who possessed 
 
 part of his assets and died before answer, are necessary par- 
 ties. Brydges v. Branjil, 11 Law J. (N. S.) 249, V. C. E. 
 Representative The personal representative of a mortgagor is not a neces- 
 
 of a mortgagor, ^ ' • i i o o 
 
 in a suit to set sary party to a suit by an equitable mortgagee ti set aside a 
 
 aside a volunta- J ir •> • i • i • 
 
 ry settlement, prior voluntary settlement or the property comprised in his 
 
 mortgage. Bo-stock v. S/iaw, 15 Law J. (N. S.) 257, V. C. E. 
 
 Executor of a To a suit against the devisee of a lease, to set it aside, the 
 
 devisor of a ° i i j • 
 
 lease, in a suit to executois (H the testator, who have assented to the devise, are 
 not necessary parties in respect of a sum alleged to be due 
 from the plaintiffs in respect of money expended by the devi- 
 sor in improvements. Mulpas v. Acklatid, 3 Russ. 273. 
 Heir, in a suit to Where a fraudulent conveyance has been obtained, a bill 
 ufent'convey'^'^' may be filed by the devisee of the grantor to set aside the 
 ^°"^®- conveyance, without making his heir at law aparty." Tipping- 
 
 ton V. Bullen, 2 Drury & War. 184. 
 Solicitor in a j„ order that he may make a discovery and may be made 
 
 suit to FGCtitV 3 •/ •' 
 
 deed fraudulent- liable for the costs, a solicitor who has irauduleiitly altered a 
 490'^'^ draft may be made a party to a suit instituted for the purpose 
 
 ofrectifving the deed. Beadles v. Bunii, 10 Sim. 332 ; 9 
 
 Law J. (N. S.) 57. 
 
 (1) A bill to set aside conveyance to trustees for fraud need not make 
 cesluis que (rust parties defendant. The interests of all may be bound 
 by the decree without such parties. Campbell et al v. Watson el aL^ 
 8 Ohio il. 500, 493.
 
 S. XL] NOTE ON PARTIES. 423 
 
 XI. Parties to Suits pertaining to the Relation op ^'- Parties .to 
 
 ^CITS PERTAIN- 
 
 HUSBAND AND WiFE. (1) ing to the rk- 
 
 *- ' LATION OF 
 
 Husband f"^ 
 
 The husband of a deceased woman is not a necessary par- Wikc. 
 ty to a suit instituted in respect of her chose in action, by H„gi,and 
 persons who have taken out administration to her with the 
 consent and as the nominees of the husband. Collins v. Col- 
 lins, 6 Jur. 49, V. C. E. 
 
 (1) In Massachusetta where an action tn foreclose is statutory, on 
 foreclosing a mortgage given by husb ind and wife of realty in her own 
 riglit, she was properly joined as pirty defendant. Swan v. Wiswall, 
 15 Pick. R. 1-26. 
 
 VVIien an unmarried womnn should bo party to a bill but ia not, and 
 pending it marri^^s, her husband must be party and they should be 
 made such not by amendment but supplemental bill. But if she had 
 been served wi-h process and then marry, the suit does not abate, nor 
 is it necessary to file such bill to bring her husband before tlie court. 
 It is only necessary in such case to mafke a suggestion of the marriage 
 and obtain an onler that hu.-band and wife be named as parties in sub- 
 sequent proceedings. (Mitfcrd, 58.) The supplemental bill in the 
 former case, which was for foreclosure of several mortgages on bills 
 filed by executors of an executor of mortgagee and tettator, must state, 
 by way of amendment, the interests of all such parties as should have 
 been made defendants to the original bill, and by way of supplement 
 may state such new interests as have occurred by marriage or other- 
 wise, and may thus bring all the necessary parties who are interested 
 in the premises before the court. The original bill may also be an- 
 nexed by striking out the names of all defendants who had no interest 
 in the premises when it was filed, together with the allegations as to 
 their interests. The suit is not abated or this amendment could not 
 now be alloued. The coming of age of an infant defendant or com- 
 plainant does not abate the suit, nor does it render a supplemental bill 
 necessary, unless his interest in the subject is changed by that event, 
 nor does the suit abate technically by the operation of the 2d Revised 
 Statutes, 448, that executor of exncufor has no authority to bring 
 suit relative to estate of testator. Campbell et al. Executors, v. Dawne 
 et al. 5 Paige 36, 34. This case came up on a petition to revive, and 
 for leave to file a supplomontal bill and to amend the original bill, by 
 striking out some and adding other parties rendered necessary by death 
 or marriage, and upon arrival at age of infants, &c. The court decided 
 tiiat the suit continue in name of pctiti >ner as the person who suc- 
 ceeded to the rights of tlie executors of the acting ex'^cutors in the 
 prosecution of the suit. But as it is necessary for petitioner to file an
 
 423 NOTE ON PARTIES. [S. XL- 
 
 Snirr'^p^'RTAiN° Where difeme covert is a necessary party, her husband must 
 iNG TO THE RE- a]go \)q g party, allhough she has lived and still lives apart 
 
 lation of r ./ ' o t 
 
 Husband and from him, and althoufjh he has had nothing to do with the 
 
 Wife. _ ^ o o 
 
 \-^'V^^*>' transaction in respect of which she is made a party. M'Ktn- 
 na V. Everitt, 1 Beav. 134. 
 
 Where a testator makes the wife of another man his execu- 
 trix, supposing her to be his (the testator's) own lawful wife, 
 and she afterwards marries a third person in the lifetime of 
 her real husband, and such third person possesses part of the 
 assets; her real husband is a necessary party to a bill against 
 her by the next of kin, but he cannot insist on their making 
 such third person a party, although they might follow the as- 
 sets into.his hands if they chose. M'Kenna v. Everitt, 1 Beav. 
 134. 
 
 ^f?o a blffby Where a bill is filed to give effect to a deed whereby a mar- 
 
 her husband, ■. 
 
 original bill in the nature of a supplemental bill, for the purpose of 
 bringing some new parties befote the court as defendants, the proper 
 course is that he tile the bill in his character of administrator de bonis 
 non, to have the benefit of the former proceedings in the suit, and in 
 the same bill to set out the necessary facts either as amendatory or as 
 supplemental matters to bring in all now having interest in the pre- 
 mises. In such bill he may make the whole proceeding rectus in curia 
 without amendment of original, stating the mistakes as to parties in the 
 • original, change of interest of other parties by lapse of time or other- 
 
 wise, as reasons for not making persons parties to the supplemental 
 bill who never had any interest in the subject of the suit, or whose in- 
 terest no longer exists. Such bill will be in the nature of an original 
 as to those who should have been parties in the tirst place ; and will 
 be a supplemental bill as to those who were served with process in the 
 original, or who subsequently derived title through or under them. 
 The rights of the new parties would be the same upon amendment of 
 the first bill, as the court cannot by amendment deprive those made 
 parties by such amendment of any defence they had under the statute 
 of limitations or otherwise, when they were actually made parties tc 
 the suit. Ibid. 37, 38. 
 
 A petition for partition is an adversary suit, and where there can be 
 no adversary a partition would be unavailing, as when the petition 
 was by husband and wife for partition of real estate devised to her, 
 one third in fee and residue for her life, remainder to her issue, and if 
 she die without, then over to certain persons named. There were no 
 adversary between plaintiffs and those having the contingent remain- 
 der. Hodgkinson et ux. Petitioners, ^c, 12 Pick. 374.
 
 S. XL] NOTE ON PARTIES. 423 
 
 ried woman assigns her separate property in favour of her s^i^s^PERT k° 
 husband.she ousrht not to be a co-plaintiff with her husband, '?"' to me ki- 
 
 ' o r L ATI O.N or 
 
 but she ought to be a defendant, in order that she may ad- Hisband amj 
 
 ° . . WlFK. 
 
 mit by her answer that the deed was fairly obtained, and was V^^^'V"'^*^ 
 executed by her with a full knowledge of her rights in the 
 property assigned. Hanrot v. Cadwallader, 2 Russ. & My. 
 545. 
 For other cases relating to this title, see supra, n. p. 30. 
 
 -v-TT -n o T /n\ ^"- Parties to 
 
 XII. Parties TO Suits for Legacies. (2) Suits fok leoa- 
 
 CIEP. 
 
 To a bill for raising legacies charged on real estate, annui- Annuitants, in a 
 tants who have a priority over the legacies, are necessary legacies out^'of 
 parties. Garrett v. Hayter, 9 Law J. (O. S.) 197, M. R. rcaieetato. 
 
 Where an executor hands over property to the residuary Personal repre- 
 
 , scntatives ot the 
 
 legatee, without setting apart a sufficient sum to answer a testator. 
 particular legacy, for which a bond is given by the residuary 
 legatee, and the executor states to the particular legatee that 
 the amount of such legacy is less than it really is, the particu- 
 lar legatee may maintain a suit for the difference against 
 the residuary legatee and the representatives of the executor A2A 
 
 personally, without making the representatives of the testator 
 parties to the suit. Bcaslcjj v. Kenyon, 3 Beav. 544. See also 
 Hudson v. Twining, Taml. 315. 
 
 A person to whom a legatee of stock has bequeathed the 
 same may file a bill against the trustees of the stock, for a 
 transfer thereof, without making the executors, either of the 
 original testator or of his legatee, parties to the suit, where 
 the bill alleges that they have respectively assented to the be- 
 quests of the stock by their respective testators. Smith v. 
 Broohsbank, 3 Law J. (N. S.) 226, V. C. 
 
 XTII. Parties to Suits pertaining to the Relation of xiii. Partif.sto 
 
 Suits i'f.rtain* 
 
 Mortgagor and Mortgagee. (1) i.no to the be- 
 
 lation of Mort- 
 
 (iAROK AND 
 
 1. Mortgagors and t/ieir representatives and assignees. — The ^i^^^n^AciKE. 
 mortgagor or his heir is a necessary party to a bill by a second Mort^'n:;or, in « 
 
 suit by a socond 
 
 — ' ~~ " mortgagee to 
 
 /■••\ o i nno reJrcm and 
 
 (1) bee n. to p. 398. lonclose. 
 
 (2) It is a general rule that besides the parties to a mortgage those 
 only are proper parties to a suit for the foreclosure thereof who have, sub-
 
 424 NOTE ON PARTIES. [S. XIII. 
 
 Sn"3^*PERTltN" mortgagee to redeem the first mortgage and foreclose the 
 Nation of"mort- equity of redemption. And the court will not make a de- 
 MoitrGA'^GlE. ^^®^ '" '^^^ absence, although he be out of the jurisdiction, 
 and his residence unknown. Farmer v. Curtis. 2 Sim. 466. 
 
 sequent to the date of the mortgage, acquired rights or interests under 
 the mortgagor or mortgagee. Per Harris, J., Holcomb v. Holcomb, 2 
 Barb. Sup. C. R. 20. Tiie plaintiff may also make prior incumbran- 
 cers parties to the bill, for the purpose of having the amount of such 
 incumbrances liquidated and paid out of the proceeds of the sale; or 
 he may at his election, have the premises sold subject to such prior in- 
 cumbrances. Per Harris, J. Ibid. 
 
 A mortgagee, in filing a bill of foreclosure, has no right to make a 
 person who claims adversely to the title of mortgagor, and prior to the 
 mortgage a defendant in the suit, for the purpose of contesting the 
 validity of such adverse claim of title. Ibid. 
 
 Though in general executor may properly be made party to a bill 
 for enforcing mortgage against heir, yet if brought against heir alone, 
 and he did not raise the objection, the court would not refuse to decree 
 on account of want of parties, and if heir thought proper to admit the 
 claim, executor would not be permitted to volunteer for the purpose 
 of defending it. Criiger v, Daniel, 1 McMullen Eq. Cas. S. Caro. 
 188,9, 157. 
 
 Mortgagee of personalty need not make mortgagor party to bill 
 against underwriters to recover on policy insuring the property mort- 
 gaged on account of whoever it concerns. The mortgagee is the owner 
 after the condition is forfeited. In this there is a difference between 
 a mortgage of real and personal property. Rogers et al. v. The Tra- 
 ders' Insurance Co. et al, 6 Paige R. 586, 7, 594, 583. 
 
 On death of mortgagee the fee technically descends to the heir, but 
 he is a bare trustee for the personal representatives. The mortgage 
 interest before foreclosure is a chattel interest. It is personal assets 
 and goes to executor wiio may assign it. It is not necessary that the 
 heir should. The executor before assignment, or assignee after, may 
 foreclose, and as a general rule the heir need not be a party to bill filed 
 by the executor for that purpose. It is a proceeding by the personal 
 representative for recovery of the debt, and the premises are under his 
 control, so far as to make the money. There are some English cases 
 which appear to hold the principle that the heir is a necessary party to 
 a bill of foreclosure filed by the executor. One of them is the late 
 case of Scott v. Nicoll, 3 Russ., 476, but the reason assigned is, that 
 if mortgagor redeem there will be no one before the court from whom 
 a conveyance of the legal estate can be taken shows that it is appli-
 
 S. XIII.] NOTE ON PARTIES. 424 
 
 A mortgagor who has taken the benefit of the Insolvent xiri. Parties to 
 
 A 1-1 t . /. /. 1 . 1 ^"I'TB PERTAIN- 
 
 Act ought not to be made a party to a suit for foreclosing the ing to the re- 
 
 _,-,. t~,, • T t-. o-»r LATIONOF MOIIT- 
 
 mortgage. LoUms v. Shirley, 1 Russ. <y My. 633. gagor and 
 
 Mortgagee. 
 
 cable only to cases of strict foreclosure, not of foreclosure and sale un- g°g°or ^°' "°^ 
 der our laws and practice. Kinna v. Smith. 2 Green's Ch. R. 16, 17, 15. 
 
 A mortgagee who lias assigned without seal and in whom the legal 
 title remains, is not a necessary party to bill by assignee. Parker v. 
 Stevens, id. 56. 
 
 Foreclosure is a proceeding in rem, not a person;il action, and defen- 
 dant cannot set off a demand, nothing but payment operates as a release 
 of the incumbrance pro tanto. White's Administrators v. Williams, 
 2 Green's Ch. R. (N. J.) 376. 
 
 A statute foreclosure as to the rights of a subsequent mortgagee to 
 redeem is wholly inoperative. The effect of such foreclosure is merely 
 to transfer to the purchaser the right of mortgagee to the extent of 
 his claim or interest in the premises for the security of his debt, and 
 so much of the equity of redemption as was not bound by the lien 
 of a junior mortgage or judgments. The purchaser is only entitled to 
 the amount due on the n^ortgage, and the subsequent incumbrancer 
 coming to redeem is exempt from the costs of the statute foreclosure 
 which as to his rights was wholly inoperative. Vroom v. Dit>7ias et 
 aZ., 4 Paige R. 531, 526. 
 
 But he obtains the whole legal and equitable interest of mortgagor 
 and all claimants under him, subject to the equitable right of the judg- 
 ment creditors to redeem, by piying the whole mortgage debt without 
 costs of the statute foreclosure, but paying the costs of the bill to re- 
 deem, and also for improvements made by the purchaser under an ad- 
 mitted ignorance of the existence of such incumbrances. Benedict v. 
 Oilman, 4 Paige R. 61, 62, 58. 
 
 A purchaser under a statute foreclosure may file bill against a judg- 
 ment creditor or subsequent mortgagee, to foreclose tlieir equity of 
 redemption and need not make mortgagor, or any other whose equitable 
 claim is already barred, a party. In such suit the subsequent incum- 
 brancer is entitled to redeem upon the usual terms of paying amouut 
 due upon the mortgage and the costs of the suit, unless the complain- 
 ant has an equitable' claim as in this case, to a further allowance for 
 improvements, «Sz,c. In such cases the court may order a release of the 
 premises under the direction of a master, or may decree a strict fore- 
 closure against the subsequent iucuinbrancer if he neglect to redeem, 
 as will best promote the ends of justice. Ibid 62-3, 58. 
 
 The owner of the equity of redemption is a necessary party although 
 the mortgagor is still liable on his bond for the deficiency, and if 
 mortgagor has assigned it, the grantor must be made a party also, for
 
 424 NOTE ON PARTIES. [S. XIIL 
 
 Suit8^p"rtLn- ^° ^ mortgagor who has become bankrupt is not a neces- 
 iA?ioNOp"MoK?- ^^^y P^^^y ^° ^ ^"i^ ^0^' 3, sale of the mortgaged estate, as the 
 
 GAGOR AND 
 MOBTGAOEE. 
 
 Bankrupt mort- 
 gagor in a suit 
 for sale. 
 
 whole of his property, and consequently his right to redeem, 
 is vested in his assignees. Kerrick v. Saffery, 7 Sim. 317. 
 
 otherwise the master's deed would convey no title to the purchaser 
 as against such owner, and if not, and it so appear on the bill, defen- 
 dant may demur, or the objection for the nonjoinder of the grantee may 
 be taken in the answer. 
 
 Before the Legislative act of May, 1840, (New- York,) which allows a 
 judgment creditor who was not a party, or any one claiming any right 
 or equity of redemption under a judgment to apply to be made a party, 
 (the object of which statute was to protect creditors by judgment or de- 
 cree subsequent to the mortgagee and claimants under them, who must 
 have been parties prior to that act in order to bar their rights of redemp- 
 tion,) before that act purchasers,penden;e lite from a defendant in the suit 
 after the filing notice of lis 'pendens, and creditors by judgment or de- 
 cree against such defendant who had obtained their liens on the mort- 
 gaged premises pending the foreclosure were bound by the decree 
 though not actual parties, and if they wished to interpose a defence 
 they could only do it in name of defendant, or if he colluded with 
 complainant or refused to permit those who acquired interests under 
 him after suit brought, to be made a proper defence in his name, their 
 only remedy was to make themselves parties by filing a bill to protect 
 their rigl.ts. Peoples' Bank v. Hamilton Manufacturing Co., 10 Paige 
 Ch. R. 484, 481 ; Mitford's PI. 73. 
 
 A judgment creditor of mortgagor who seeks to be made party and 
 applies after decree for leave to come in and defend under the act of 
 1840, must show upon oath that he has a defence, and state what the 
 defence is, and if it is on information, the affidavit of the informant 
 must be annexed. Ibid. 
 
 On bill to foreclose a mortgage, the mortgagee cannot make a prior 
 claimant of the legal title adverse to both mortgagor and mortgagee 
 party, to test and settle by decree the validity of his title. Nor in bill 
 for specific performance can vendee make claimant of title adverse to 
 vendor, party for like purpose. So far as mere ^egal rights are con- 
 cerned upon bill of foreclosure, the only proper parties are mortgagor 
 and mortgagee and those who have acquired rights or interests under 
 them subsequent to the mortgage. Eagle Fire Co. v. Lent, 6 Paige, 
 637-8, 635. 
 
 On bill for specific performance, and on report of trustee on title, the 
 court held that where there is a contest in chancery in relation to real 
 estate, or where mortgagee seeks foreclosure, and there are several
 
 S. XIII.] NOTE ON PARTIES. 424 
 
 Nor is the assignee of an insolvent morttracror a necessaJV o^''- P^i^^'ESTo 
 
 ° So 'yj Suits pebtain- 
 
 party to a foreclosure suit. Steele v. Maunder. 1 Coll. 535. i^o to the he- 
 
 _, . LATIONOF MOKT- 
 
 lo a bill to redeem which allecjes that the mortgasee has gagob and 
 
 1 . 1 , , . n , Mortgagee. 
 
 been over-paid, the personal representative of the mortgagor V^^'^v^'V-/ 
 is a necessary party. Baker v. Weston or Wetton, 9 Jur. 98, Assignee of an 
 
 <i ^ •/ ' ' insolvent mort- 
 
 V. C. E. gngor, in a tore- 
 
 . , . closure suit. 
 
 The surviving partners of a firm, one of whom deposited Personal reprc- 
 
 • iij.i,« .p , sentativc ot 
 
 title deeds with the firm as a secunty for money borrowed by mortgagor in a 
 
 1 • J 1 1 ^, 1 . 1 -,1 ... suit to redeem. 
 
 nim and by another person, cannot file their bill against his Personal repre- 
 
 h/> iri I'li-iii 1 sentative ot a 
 
 eir tor a sale ot the estate to which the title deeds relate, mortMgor, in a 
 
 without making his personal representative a party: for if ^"' 
 
 the heir suggests thtit the debt has been satisfied (which, in 
 
 the given, case, it might be by a balanee, being left in the 
 
 hands of the partners sufficient to pay the debt), that must be 
 
 investigated ; and it cannot be investigated in the absence of 
 
 the personal representative. Scholejield v. Heajield, 7 Sim. 
 
 667. 
 
 2. Mortgagees and their representatives. — Where the trustees other mortga- 
 gees of tolls in 
 
 : a suit by one 
 
 mortgagee, 
 future and contingent interests in the equity of redemption, it is not 
 necessary to make every person having or claiming such interest, 
 party, in order to bar his right or claim by decree. It is sufficient if 
 the person who has the first vested estate of inheritance, and all other 
 persons having or claiming prior rights or interests in the premise.-, 
 are brougiit before the court. The person having the first estate of 
 inheritance, and who is in esse, appears a necessary party to a bill of 
 foreclosure to make the decree a bar either to his right or to the right 
 of any contingent remainderman, who is not made a party to the suit 
 to make the foreclosure valid against all claimants, not only he who 
 has the first estate of inheritance must be brought before the court, 
 but even the intermediate remaindermen, for life, ought to be brougiit 
 before tiie court to give them an opportunity to pay off the mortgage 
 if they thought fit. Nodine v. Greenfield el al., 7 Paige R. 548, 544. 
 
 Where mortgagee in possession gives an absolute lease reserving 
 rent, he or his assigns must be parties to a bill for redemption against 
 lessee, so that lessee may be discharged from his covenants for pay- 
 ment of rent, and also have a decree for his proportion of the redemp- 
 tion money, to the extent of the value of his term over and above the 
 rent reserved. Dias v. Mtrle, 4 Paige R. 1259. 
 
 On a bill filed by the assignees of a tenant for life for a partition, 
 the creditors of the tenant for life are not necessary parties. Van 
 Arsdale v. Drake, 2 Barbour's S. C. Rep. 599.
 
 424 NOTE ON PARTIES. [S. XIII. 
 
 Suits^^pertIin'- "^^ turnpike road assign to a mortgagee such proportion of 
 iNG TO THE BE- tlic tolls as thc sum advanced by him bfiars to the whole prin- 
 
 1.ATI0N OPMort- •' '■ 
 
 OAOORAND cipal money advanced on the credit of the tolls, the other 
 
 MORTGAOKE. r 
 
 V^X'-V^^^ mortgagees of the tolls are necessary parties to a suit by him 
 
 425 against the trustees to obtain payment of arrears of interest 
 out of the tolls. McllisTi v. BrooJis, 3 Beav. 22. 
 
 gagee°jn\'fore- " "^'^^ ^'®'^ "^^ ^ mortgagee to whom the legal estate in the 
 
 closure suit. mortgaged premises has descended, is a necessary party to a 
 
 . bill of foreclosure filed by the executor of the mortgagee." 
 
 Scott V. Nicholl, and Hampson v. Nicholl, 3 ituss. 476. 
 
 Representatives Where a mortgage was made to several persons iointly, 
 
 of deceased . , ^ ^ , . n ^ ,- 
 
 mortgagees. whether as trustees or not, the representatives of such of them 
 as are dead are necessary parties to a bill for foreclosure of 
 redemption ; because, although at law the whole debt and se- 
 curity vests in the survivor, yet in equity the mortgqgees are 
 tenants in common. Vickers v. Coieell, 1 Beav. 529. 
 
 First mortgagee A second mortgagee may sustain a bill of foreclosure 
 
 in a suit by a se- . , i i i • i 
 
 cond. agamst the mortgagor and the subsequent mortgagees, with- 
 
 out making the first mortgagee a party. Richards v. Cooper, 
 5 Beav. 304 ; Rose v. Page, 2 Sim. 471. . 
 Prior incum- Where a receiver appointed in a suit instituted by incum- 
 
 suiTby^^a judg- brancers has been ordered to keep down the incumbrances 
 ment creator. ^^^ ^^ ^^^ rents, and to pay the residue to the owner of the 
 estate, a subsequent judgment creditor may file a bill against 
 the owner and receiver, without making the other incumbran- 
 cers parties, to have his debt satisfied out of the surplus rents, 
 after keeping down their incumbrances. Lewis v. Lord 
 ZoucJic, 2 Sim. 388. 
 Creditors named 3^ trustees and cestuis que trust. — To a bill to redeem mort- 
 
 as cestui!^ que j. 
 
 trust of proper- orasjed property which has been assigned (subiect to the mort- 
 
 ty m mortgage oorr^ o\j 
 
 in a suit to re- gage) to trustees for scheduled creditors, the creditors are not 
 
 deem. & & / ' 
 
 sufficiently represented by the trustees, where at least, no rea- 
 son is given in the bill for not making the creditors parties. 
 And the defect is not supplied by bringing a few of the credi- 
 tors before the court by a supplemental bill, without making 
 the trustees parties thereto. For, if the court, for the sake of 
 convenience, is to dispense with the presence of any of them 
 as parties to a bill, the trustees ought to be parties to that bill, 
 in order that they at least may be able to inform the court 
 whether it is sufficiently framed with reference to the inter-
 
 S. XIII.] NOTE ON PARTIES. 425 
 
 ests of all the cestuis que trust. Holland v. Baker, 3 Hare, 70. ^'"- Partiesto 
 Accordinof to tlie case of Oshorn v. Fallows, to a suit for the '"^^ to thl ke- 
 
 . ^ _ LATION OF MoRT- 
 
 rederaption of a raortgaere terra, which the morteragee has de- oagok and 
 
 . J . „ ° ° ° ° MORrCAOHE. 
 
 vised in trust for several persons, all those persons are neces- v^^^y^x*^ 
 sary parlies ; although they are numerous and the property ^"^''^o'^t'^"""" 
 small ; and although the mortgagee's will directs that the re- ^'■™ ^^^" a 
 
 ° o o mortgagee's will 
 
 ceipt of the trustees shall be a sufficient discharge to purcha- '" " suit to rc- 
 
 ^ o 1 deem. 
 
 seis. 1 Russ. & My. 741. But see the 30th order of August, 
 1841. 
 
 To a suit for a foreclosure or a sale, persons beneficially Cfstuis que im.-t 
 interested under a settlement of the equity of redemption ment of an equi- 
 made by the mortgagor, and standing prior to him in the limi- [foj,° j^''^ f"re- 
 tations of such settlement, and having consequently a prior •^'°^"'''-' *""• 
 right to redeem, are necessary parties. Anderson v. Stathcr, 
 9 Jur. S06, V. C. B. 
 
 A person cannot maintain a suit for a redemption, without Trustees of 
 making the trustees of a charge on the estate anterior to the ^•>8'"ee. in a suit 
 
 ° _ _ ° for rcdemptioD. 
 
 interest claimed by him, and also (where not exempted by the 
 30th order of August, 1S41,) the persons beneficially entitled 
 to that charge, parlies to the suit. Henley v. Stone, 3 Beav. 
 356. 
 
 To a bill of foreclosure, a trustee of the mortgage monies n .• ^ _, . 
 
 o o itetirra trustee 
 
 who has retired, but has not been freed from the trust bv the °' rao^e^ec 
 
 « monies, in a 
 
 substitution of a new trustee in his room, is a necessary party, foreclosure suit. 
 
 although a memorandum is indorsed on the deed by which he 
 
 was appointed, expressive of the assent of the cestuis que trust 
 
 to his discharge, and purporting to assign and yield up the 
 
 trust monies and authorities to the co-trustees. Adams v. 
 
 Paynter, 1 Coll. 592. 
 
 Trustees appointed by the mortgagor of a reversionary in- Trustees in a ^ 
 
 , . ,, , t rr- foreclosure suit. 
 
 terest in stock, in trust to sell the same, and pay off the mort- 
 gage debt, and to hold the surplus for the mortgagor, are not 
 proper parties to a bill of foreclosure.- Slade v. R'gg, 3 Hare, 
 35. 
 
 4. Parties to mortgage suits generally. — Where the owner p„rchasrr of an 
 of two estates comprised in the same mortgage, afterwards gB';!',!''in'nsii'i't7i!^r 
 mortgages one of them to another person, and sells the other ^"'".■•■■osur.- of 
 to a third person, and then the first mortgagee files a bill of """i'""'' '"""* 
 
 ' _ o o same mortgage. 
 
 foreclosure of the estate twice mortgaged, the purchaser of
 
 426 NOTE ON PARTIES. [S. XIII. 
 
 s'iTs''rMT''iN° ^^^^ Other estate is a necessary party. Payne v. Compion and 
 iNG TO THE RE- Comvton V. Payne, 2 Y. & C. 4')7. 
 
 NATION OF MORT- *^ 
 
 GAGOK AND WHerc a tenant for life and a tenant in tail ioin in a mort- 
 
 MORTGAGEE. , •' 
 
 V^^'V''^^ g^S^f and afterwards in a sale of the estate, and the mortga- 
 Representntivoa gree files a bill of forcclosuie after the death of the tenant for 
 
 of a tenant lor ~ 
 
 life, in a fore- \[£q tjjg representatives of the tenant for life must be parties 
 
 closure suit. '^ •» 
 
 to the bill, because they are entitled to some part of the pur- 
 chase money. Chalie v. Gwynne, 6 Law J. (N. S.) 274, 
 
 427 M. R. 
 
 torsf°in° a'^fore- The 23rd oi'der of Aug. 1841, does not make it sufficient 
 
 « osureauit. ^^^ ^ mortgagee in a foreclosure suit to serve a copy of the 
 
 bill upon judgment creditors whose judgments were entered 
 
 up subsequently to his mortgage. Adams v. Paynter, 1 Coll. 
 
 530. 
 
 XIV. Parties TO XW . PARTIES TO PARTNERSHIP SoiTS.* (1) 
 
 Partnership 
 
 ll^'J:^^ A suit for the dissolution of a partnership cannot be main- 
 Partners in a tained by some of the pailners on behalf of themselves and the 
 lution?'^ ^ '^'*^° ^^^^' ^^^ ^^^ partners must be parties by name. Wilson v. 
 
 Chester, 1 Law J. (N. S.) 126, V. C. See also cases supra^ 
 
 Sec. VIL, p. 417. 
 
 * See Sec. 7. See note to p. 398. 
 
 (1) Partner against partner cannot blend private with partnership 
 claims. If he is in advance for more than his partnership liabilities, he 
 becomes a debtor to the firm to which he must look first, and lastly to the 
 individual efforts of partner, and there is no allegation that the partner's 
 effects are not adequate to indemnity. The advance for individual 
 indebtedness of defendant, creates only the ordinary relation of debtor 
 and creditor, to adjust which, a court of law is adequate. A creditor 
 at large is not allowed to come info this court upon a purely legal 
 claim, and enjoin his debtor from disposing of his efl^ects. This is only 
 when he has reduced his claim to a judgment. Freeman v. Fennall 
 el al, 1 Smedes & Marshall, (Miss.) Ch. R. 626-7, 624. 
 
 In the case of Coe v. Whiibeck, 1 1 Paige's Chancery Reports, 42, 
 44, Chancellor Walworth remarks, that " where a debt is due to a co- 
 partnership at the lime of the bankruptcy of one of the individual 
 members of the firm, an action at law to recover the debt must be 
 brought in the. joint names of the solvent copartners, and of the as- 
 signee of the bankrupt; as the legal title to the debt is vested in them 
 jointly by operation of law, (2 Waif, on Parties, 299.) But the sol- 
 vent partners have the right to bring the action in the names of them-
 
 S. XIV.] NOTE ON PARTIES. 427 
 
 Where several persons enter into a speculation, by which xiv. Parties to 
 
 ' ^ r ' .' Pabtnersuip 
 
 a loss is sustained, a bill by one of them against another for Suits. 
 his proportion of the loss, without making the others parties, partnere in a 
 is defective for want of those parties, although the plaintiff them''i'''a?Mt "'^ 
 allege and prove that they have settled with him, and that "no'^er for hu 
 
 o \r J ' proportion ol a 
 
 nothing is due from or to them, to or from the defendant. '*>"• 
 .Hills V. Nash, Phil. 594. 
 
 To a bill filed for the purpose of obtaining relief against surviving part- 
 the assets of a deceased partner, the surviving partners must against the "ex- 
 be made parties, though no decree is sought against them ; cease" p'aroier* 
 because they are necessarily interested in taking the account 
 of the amount of the joint debt, Thorpe v. Jackson, 2 Y. & 
 C. Eq. Ex. 553. 
 
 A creditor of a partnership firm may file a bill on behalf of 
 himself and all other creditors for payment of the partnership 
 debt out of the estate of a deceased partner in the first 
 instance, although there be no proof that the surviving part- 
 ner is insolvent. In such a suit, however, the surviving part- 
 ner is properly made a co-defendant, as being interested to 
 contest the demands of the creditors, although the remedy 
 against the surviving partner, is altogether at law. Wilkinson 
 V. Henderson, 1 M. & K. -582. 
 
 The residuary legatees of a deceased partner, even without surviving part- 
 ner and cicecu- 
 
 charging or proving collusion, may maintain a suit for an tor of a deceased 
 
 selves and the assignees of the bankrupt, without the consent of such 
 assignees, upon giving them an indemnity against the costs (Brown 
 on Parties, 65; Whitehead v. Hughes, 2 Cromp. & Meeson, 318.) 
 And in this court I think the assignee of the bankrupt co-partner is a 
 necessary party to a suit brought to recover a debt due to the firm at 
 the time of tlie bankruptcy; where such assignee takes a beneficial 
 interest in the partnership effects, as a trustee for the separate credi- 
 tors of the bankrupt co-partner under tiie proceedings in bankruptcy. 
 But where the bankrupt is discharged from iiis debts, and it distinctly 
 appears that tne co-partnership is insolvent, so that the assignee in 
 bankruptcy has no interest in the effects of the firm, but tlie solvent 
 partners must necessarily apply the whole of the co-partnership pro- 
 perty to the payment of the debts of the firm and make up the defi- 
 ciency of those debts out of their individual properly, and where that 
 fact is distinctly stated in the bill, I can see no good reason for making 
 the assignee of the bankrupt partner, a party to a suit in this court to 
 obtain payment of a debt due to the firm."
 
 427 NOTE ON PARTIES. [S. "XIV. 
 
 ^plkT^ERBmT° account of his personal estate against his executors, and 
 V ^^^'^^ J against a surviving partner and the executors of another de- 
 partner in a suit ceased partner, vvrhere the latter have purchased the share of 
 per8onai°"estart> ^^^ ^^'^^ mentioned deceased partner from his executors, but 
 ceased^partner*^ ^^^^ partnership accounts were inaccurately taken. Law v. 
 
 Law. 2 Coll. Ch. C. 41. 
 Representatives ^q ^ sult in which a firm to whom remittances have been 
 partner, in a suit made will have to account, the representatives of a deceased 
 
 m which the ^ 
 
 partnership have partner are necessary parties. Miller v. Crawford, 9 Law J. 
 
 to account. '■ *' ^ -' ' 
 
 (N. S.) 193, L. C. 
 
 Insolvent co- Oiie partner may file a simple bill for a contribution in re- 
 partners, in a *. 11- 
 bill for contrihu- spect or an over payment by him, and not for an account 
 
 against some of his co-partners, without making insolvent 
 
 partners parties to the suit. Jones v. Morgan, 10 Jur. 238. 
 
 XV. Parties to Suits by or against Tenants in Common 
 
 XV. Parties to t) t-> ■n' * 
 
 Suits by or CF K.EAL OR It'ERSONAL INSTATE.* 
 
 AGAINST Ten- 
 
 OF Real OR Per- Where one of two tenants in common files a bill for the 
 
 SONAL Estate. pi-i • ^ it. t • 
 
 y^^^->^<^^^ recovery or his share against a person who threatens and in- 
 Tenant in com- tends to Set up an outstanding term so as to prevent him from 
 
 mon and trustee ,.. . n • tii-i 
 
 of outstanding Succeeding in an action of ejectment commenced by him, the 
 
 term, in eject- , . . • r , i '^^ 
 
 mentbiiibyano- Other tenant in common is a necessary party, it the bill prays 
 
 tenant in com- .^i .^ i i f i -i f> • 
 
 mon. that an account may be taken oi the rents and pronts receiv- 
 
 ed by the defendant, and that the defendant may de'iver up 
 the title deeds ; but the trustee of the term need not be a 
 party. Brookes v. Burt, 1 Beav. 106. 
 
 Person entitled A bill may be filed for the moiety of a le2:acy by one of two 
 
 to a share of a / . •' o .; ./ 
 
 legacy or fund, pei'sons entitled to the legacy, without making the other lega- 
 
 in a suit by ano- ^^ y~.7 rr t/xtci\t-it» 
 
 ther person for tees a party. Hughson v. Cookson, S Law J. (N. o.) Lx. K. 
 
 another share, „^ 
 where there is Oo. 
 
 trust Where a sole surviving executrix, who is beneficially inter- 
 
 ested in a moiety of her testatrix's estate, files a bill against 
 a person who has received part of that estaSfe abroad, the 
 representatives of the person beneficially interested in the 
 other moiety must be befoi'e the court. But it will be consid- 
 ered sufficient (at least, if not objected to until the hearing) if 
 such sole surviving executrix takes out administration in the 
 prerogative court to the party interested in such other moiety 
 
 * See Sec. 7. See note to pp. 398, 399.
 
 S. XV.] NOTE ON PARTIES. 428 
 
 akhouerh that party left a will which has been proved in a ^^- ''a«tie8 to 
 
 ^ "^ , ' Suits bv ob 
 
 forei.srn country. Price v. Dewliurst, 6 Law J. (N. S.) 226, against Ten- 
 
 J7 ^ ' ANT8 IN Common 
 
 V . C. OF Keai, or 1'e»- 
 
 _ _ 60NAI. ESTATK 
 
 In Hutchinson v. Townsend, Lord Langdale, M. R., on the V-^'VX^ 
 authority of Smith v. Snow, 3 Mad. 10, held tliat a person en- 
 titled to one-fourth of an ascertained and appropriated fund, 
 vested in a trustee, may sue for his one-fourth share without 
 making the parties entitled to the other three fourths parties 
 to the suit ; although his lordship said it would be very incon- 
 venient to encourage suits of this description. To deal with 
 a fund in parts would occasion a multiplicity of suits. 1 
 Keen, 675, 
 
 According to the case of Alexander v. Mullins, where an J'^"°'>? entitled 
 
 ° . for a share qf a 
 
 executor neglects to make an mvestment to answer a legacy trust fund, in a 
 
 , ,. f 1 1 o .' suit for abroach 
 
 to certam persons, and dies, one ot the legatees cannot pro- of truBt, insti- 
 ceed against his assets for his own share, without suing on er person* en ti- 
 behalf of himself and the other legatees, or making the other 8h£'" '^°'^^' 
 legatees parties ; for a person having an interest only in a 429 
 
 portion of a debt, cannot maintain a bill for the recovery of 
 his share, without suing in that way. 2 Russ. & My. 56S. 
 And according to the case of French v. Cockerell, one of two 
 persons who are entitled in moieties to a trust fand, cannot 
 file a bill for a misfeasance as to the whole fund, without mak- 
 ing the other a party ; for otherwise the defendants would be 
 subject to a second suit. 8 Sim. 219. But according to the 
 case oisj^erry v. Knott, a suit may be maintained for a breach 
 of trust in respect of an ascertained fund, by a party entitled 
 to a moiety thereof, without making the person entitled to 
 the other moiety thereof a party, 5 Beav. 203. 
 
 Where a testator bequeaths certain sums to two persons, 
 upon trust to appropriate and apply the same, in two equal 
 parts or shares to be divided, for their children respectively, 
 the fund is so divided into distinct parts, as to make it unne- 
 cessary for a plaintiff filing a bill in respect of a breach of 
 trust as to one part only to bring the parties interested in the 
 other before the couit, Oheston v. Banister, 4 Beav, 205. 
 
 37
 
 429 NOTE ON PARTIES. [S. XVIL 
 
 XVI. Parties TO XVI. PARTIES TO TlTHE SuiTS. (1) 
 
 Tithe Suits. 
 
 Crews of oys- To a bill for the tithes of oysters customarily paid by the 
 ter boats. propi'ietors or occupiers of oyster-boats, the crews of the 
 
 boats are not necessary parties, although they ai-e paid a cer- 
 tain sum for a given number of oysters taken : for it is not con- 
 sidered that they have any interest in the fish themselves, 
 but that they are paid w^ages proportional to the number of 
 fish they take. Perrott v. Bryant, 2 Y. & C. Eq. Ex. 61. 
 To a bill for tithes by a vicar as;ainst the occupiers, the im- 
 
 Impropnator, in ^ ■' ° i i i • i n 
 
 a suit by the propriator ought not to be a party, although the bill alleges 
 that the tithes in question have always been received by the 
 impropriator. Cook v. Blunt, 2 Sim. 417. 
 
 Landowner. Where in a bill for tithes it is charged that the landowner 
 
 has documents in his possession which would support the 
 plaintifi^s case, the plaintiff may make him a party to it, for 
 the purpose of discovering from him such documents. But 
 the plaintiff in a suit which does not seek the establishment 
 of a right to take tithe need not make the landowner, as well 
 as the occupier, a party, unless he chooses ; and if he does 
 choose to make the landowner a party, he does it at the haz- 
 ard either of not receiving his costs, although he should get a 
 decree against the occupier, or of paying them, according to 
 the circumstances of the case. Day v. Drake, 3 Sim. 64, 72. 
 
 Vicar, in a suit In a suit by an impropriate rector for an account of tithes, 
 
 by an impropri- , , ,. , , , i • i i ^i j r- 
 
 ate rector. and not to establish a right to take litnes, when the aeience is 
 
 430 that the tithe in question is vicarial, and the vicar, who is a 
 defendant, dies during the suit, it is not necessary to make the 
 new vicar, as well as the executor of the former vicar, a par- 
 ty, if the plaintiff will waive the account subsequent to his in- 
 duction. Daws V. Bean, Jac. 95. 
 
 XVII. Parties to Suits pertaining to the Relation 
 OF Trustees and Cestui que trust. * {'2) 
 
 1. Author of a trust and Jus representatives. — To a bill for 
 
 XVII.Pabtiesto , . /. 1 ^ • i? .1 1 
 
 Suits pertain- the executiou ot a trust, the representatives oi the aonor are 
 
 ING TO THE re- 
 lation OF Trus- 
 tee AND Cestui * See note to p. 398. 
 
 QUE TRUST. 
 
 [}) The wife of a husband, tenant in common, is not a necesssry 
 
 party to a suit for partition. Malhews v. Mathews, 1 Edw. Ch. R. 565. 
 
 (2) In the case of Christie v. Herrick, 1 Barb. Ch. R. 2C0, Chancel-
 
 S. XVII.] NOTE ON PARTIES. 430 
 
 not necessary parties, although on the face of the bill it an- xviMabtiksto 
 
 , ' .Suits peiitaix- 
 
 pears somewhat doubtful whether a valid trust was created. «no to thk «e- 
 Reed V. O'Brien, 7 Beav. 32. Tklstie and 
 
 CebtVI qvt 
 
 _^_____ Tii--i. 
 
 lor Walworth remarks, that "the general rule unquestionably is, that or^be^autho/'iff 
 all persons materially interested in the subject matter of the suit ought » trust, in asnit 
 
 . , , -111 . ,, , ° for tlie pxccu- 
 
 to be made parties ; and tliat the cestui que trust, as well as the trustees, tion thereof. 
 should be brought before the court, so as to make the pcrformunce of 
 the decree safe to those who are compelled to obey it, and to prevent 
 the necessity of the defendants litigating the same question again with 
 other parties. But the case of assignees, or other trustees of a fund 
 for the benefit of creditors, who are suing for the protecti(;n of the 
 fund, or to collect moneys due to tlie fund from third persons, appears 
 to be an exception to the general rule, that the cestui que trust must be 
 made a party to a suit brought by a trustee. Lord Redesdale says, 
 trustees of real estate for the payment of debts or legacies, may sus- 
 tain a suit either as plaintiffs or defendants, without bringing the cre- 
 ditors or legatees before the court, which in many cases would be 
 almost impossible ; and the rights of the creditors or legatees will be 
 bound by the decision of the court against the trustees, (see supra.) 
 And in Franco v. Franco, 3 Ves. Jr. R. 76, where one trustee filed a 
 bill against another, to compel him to replace st ick, belonging to the 
 trust fund, which he had improperly sold. Lord Rosslyn overruled a 
 demurrer, which had been filed by the defendant, upon the ground that 
 the cestui que trust, to whom the proceeds of the trust fund were ulti- 
 mately to be paid, were not made parties. So in the case of Bifield 
 V. Taylor, 1 Molloy's Ch. R. 193 ; Beatty's Ch. R. 91, S. C, where a 
 bill was filed by the trustee to raise the arrears of an annuity which 
 had been granted to him in trust for himself and four other persons, 
 Lord Chancellor Hart overruled the objection of the defendant that the 
 cestui que trust were not made parties to the suit ; it appearing to have 
 been the intention of the parties creating the trust, to give to the trus- 
 tee the power to collect and receive the amounts for himself and the 
 other parties interested therein with him, without the necessity of 
 their interference." 
 
 It is not necessary in all cases, tl at the cestuis que trust, or parties 
 beneficially interested should be parties to a bill in equity. Executors 
 and administrators, (for instance) who mny be sued or who may sue, 
 in many cases sufBciently represent creditc rs, legatees or distributees 
 for whom they are trustee?. Lucas v. McDlair, 12 Ilarr. & John«. 
 (Maryland.) R. 1. 
 
 It is the constant aim of a court of equity to do com[iIete justice, by
 
 430 NOTE ON PARTIES. [S. XVII. 
 
 XVII.PABTIE3T0 And to a suit for an account asrainst a person who has mana- 
 
 tOITS PERTAIN- ° ^ 
 
 iNG TO THE RE- ged ti'ust propcity for a trustee, the personal representative 
 Trusiee and of the testator who created the trust is not a necessary party. 
 
 Cestui que r, t ■, -r-rr-, ^ -i- -..-t^ rfr^ 
 
 Trvbt. Bradstock v. Whatley, 7 Jus. 409, M. R. 
 
 Personal repre- ■ — ■ — — 
 
 seutative of the 
 
 author of a trust deciding upon and settling the rights of all parties interested in the subject 
 trurtee^' against matter of the suit, but this may be obtained by having the necessary 
 his agent. parties before the court, at any time before the final decree is passed. 
 
 If all persons interested are not made parties, the court many times, 
 upon hearing, will not for want of parties, proceed to a decree. Ibid, 
 If a trustee employs an agent to bid for him at his own sale, and he 
 does bid, and the property is struck oflT and conveyed to him, and then 
 re-conveyed to the trustee in pursuance of the previous agreement 
 between the agent and the trustee, in a bill in equity to set aside both 
 of those deeds, it is unnecessary to make the agent or his representa- 
 tive a party. Davis v. Simpwn, 5 Harr. & John. R. 147. 
 
 All the devisees are necessary parties to a suit against the executors 
 respecting real estate which was devised to them in trust to sell, and 
 was inequitably purchased by one of them. Campbell v. Johnston, 1 
 Sand. Ch. R. 148. 
 
 Where no trustee of a wife is appointed in an ante-nuptial marriage 
 settlement, a court of equity will treat the husband as trustee. Blanch- 
 ard V. Blood, 2 Barb. S. C. Rep. 352. 
 
 Where a trustee prosecutes a claim for the benefit of the cestui que 
 trust the latter must be made a party. Fish v. Howland, <^c., 1 Paige's 
 Ch. R. 20. Where the complainant claims in opposition to a deed of 
 trusf, and seeks to set it aside on the ground of fraud, he may proceed 
 against the fraudulent trustee alone, without making the cestuis que 
 trust, parties. It is otherwise where the complainant is endeavoring 
 to enforce a claim adverse to the interests of the cestui que trust, but 
 which is founded upon the supposed validity of the trust deed. Rogers 
 v. Rogers, 3 Paige's Ch. R. 379. 
 
 A proceeding against trustees for a fraudulent breach of trust, is an 
 exception to the rule, that in a suit against trustees, all of the trustees 
 must be made parties. Cunningham v. Pell, 5 1 aige's Ch. R. 607. 
 When real estate is conveyed by a trust deed to secure the cestui que 
 trust, he may proceed in. equity to foreclose the trust, and other credi- 
 tors who have levied their executions on the trust estate are entitled to 
 redeem, and therefore are proper parties defendants to the bill of fore- 
 closure. Marriott v. Geven, 8 Alabama R. 680. In a bill for the spe- 
 cific performance of a trust deed, all persons who claim the specific 
 fund in the same right, may properly be made parties. Partee v. McAl- 
 lister, 6 Humphreys' Tenn. R. 408.
 
 S. XVII.] NOTE ON PARTIES. 430 
 
 When the maker of a promissory note places the money xvn. parties to 
 
 1 J r </^ bUITS PERTAIN- 
 
 thereby secured in settlement upon another person, the cestui "-c to the re- 
 
 ' '■ _ LATIOS OF 
 
 que trust may sustain a suit against the trustee, seeking to af- TBrsxEE and 
 feet him with a breach of trust in improperly allowing the mo- Trvst 
 ney to remain outstandine:, and to compel him to pay the mo- „ 
 ney, without seeking to recover the money from the represen- °f '^e maktr of 
 
 •"^ ° •' * a note, m a suit 
 
 tatives of the maker of the note, or makingr them parties, against a truBt.-e 
 
 ^ „ » o 1 thereof. 
 
 Platel V. Oradock, C. P. Cooper. 481, V. C. E. 
 
 Where the legal title to trust property is in the trustees, so that a 
 decree directing a sale of the property either by the trustees or by a 
 receiver, will give a good and valid title to a purchaser, if the cestuis 
 que trust are numerous, or if some of them are unknown, it is not 
 necessary to make them all parties to a bill to compel the execution of 
 the trust, and for an account and distribution; but a part may sue in 
 behalf of themselves and others. And the court will see that the 
 rights of all to their distributive shares of the trust fund are protected 
 by the decree in the cause. Mann v. Butler, 2 Barb. Ch. R. 3G2. 
 
 The general rule is that a nominal trader must join the beneficiaries. 
 But where the cestuis que trust are numerous, and greit inconvenience 
 or necessary expense would accrue to complainant to bring them in, the 
 court will in its discretion dispense with the general rule. Willink v. 
 Morris Canal and Banking Co , 3 Green Ch. R. 377. 
 
 Cestuis que trust having a vested interest though no riglit of present 
 enjoyment, may file a bill to have the trusts declared and the defendant 
 removed from his trust if he has misbehaved. Cooper v. Day, in Error, 
 1 Richardson Eq. Rep., (S. Caro.,) 38, 26. 
 
 In general a bill is not evidence against the plaintiff, the statement 
 being attributed to the counsel, not to the party. But Chan. Johnston 
 (S. Caro.) said he was in the habit of ruling, that any paper signed 
 by a party, much more sworn to by him, is good as his statement. 
 Cooper V. Day, in Error, 1 Richardson Eq. Rep. 34, 26. 
 
 Where the bill seeks the title in behalf of persons having the equity 
 to land against the trustee, all interested in the equity should be par- 
 ties, and if not, those not parties are not alFected by the doctrine of lis 
 pendens so as to prevent them from perfecting their equitable right by 
 the acquisition of the legal title. Lessee of Trimble v. Boothby et al., 
 14 (Griswold's) Ohio Rep. 109; Gibler et al. v. Trimble, id. 323. 
 
 In bill against trustees of an incorporated religious society to re- 
 strain them from ejecting a clergyman from the parsonage and deprive 
 him of the right to preach, the chancellor was induced to think that the 
 corporation should be parly. Lowyee v. Cipperly, 7 Paige R. 282, 281.
 
 430 NOTE ON PARTIES. [S. XVII. 
 
 xvii. FAiiTiESTo 2, Trustees and their representatives, — A person who has ac- 
 
 feuiTS PCaTAIN- -' I 
 
 jNG TO THE BK- ccpted a trust merely by executing a deed appointing him a 
 'jjRusTKE AND nBw tfustee, but has never acted, is not a necessary party to a 
 TiiusT. suit against trustees fur a breach of trust. Wilkinson v. Par- 
 ^^^^!^2C^.. rj/, 4 Russ. 274. 
 iiotacted. Where two out of three trustees of a lease belonging to a 
 
 A trustee, in a _ _ _ _ o o 
 
 suit against CO- club impronerlv sell it, the third is not a necessary party to a 
 
 trustees who . S. I J ' j i j 
 
 have improperly suit fof an account of the purchase money and for winding 
 property. up the affairs of the club. Richardson v. Hastings, 7 Beav. 
 
 301. 
 
 8ettie'meat°i * Where a funi is lost in consequence of not being transfer- 
 suit by their j.q^ from the trustecs of one settlement to the trustees of a 
 
 cestuis qtie trust 
 
 against the trus- subsequent settlement, the cestuis gue trust under the second 
 
 tees 01 a lormer . , 
 
 settlement. settlement may file a bill in respect of the loss, without mak- 
 ing the trustees of that settlement parties, because the cestuis 
 que trust represent the trustees. Munch v. Cockerell, 8 Sim. 
 219. 
 
 teTm'^and * jor "^^ ^ ^^^^ ^^^ ^^^ appointment of new trustees for presei"ving 
 
 tionists, in a suit contingent remainders, the trustees of a terra for raisin? por- 
 ter the appomt- ..... ... 
 
 ment of new tions which is prior in point of limitation to the estates of the 
 
 trustees. . . , 
 
 trustees to preserve contingent remainders, are necessary par- 
 ^o-i ties ; but the portionists are not indispensable parties. Elli- 
 
 son V. Cookson, 2 Coll. 52. 
 
 Personal repre- Where a bill is filed for an account of personal estate re- 
 
 trusteejn a°suit ceived by trustees, a person who has obtained administration 
 
 rStro°fTru°s^ of the estate of one of them "for thepurpose only to attend, 
 
 *'^®®- supply, substantiate, and confirm the proceedings in the suit," 
 
 is not sufficient to represent the deceased trustee : a person 
 
 who represents his personal estate generally must be brought 
 
 before the court. Clough v. Dixon, 10 Sim. 564. 
 
 Personal repre- To a suit for the recovciy of property deposited with trus- 
 
 sentatives of a . , . , . , i i i /• 
 
 deceased co- tees as an indemnity to them against a supposed breach oi 
 
 for^a^*^rL°overy trust, the representative of a deceased trustee is a necessary 
 
 6tu^u'tm'"m^'in- P^^^y* because if it is the case that a breach of trust was com- 
 
 demnity to the n;,itted, the estates of both the trustees are liable, and there- 
 trustees. ' 
 
 fore the representative of the deceased trustee is interested in 
 upholding the indemnity. Meinertzhagen v. Davis, 7 Jur. 
 1103, V. C. B. 
 Trustees, in the gy the 32nd Order of August, 1841, " in all cases in which 
 
 case of a joint •' _ . . 
 
 demand on the plaintiff has a joint and several demand against several
 
 S. XVII.] NOTE ON PARTIES. 431 
 
 persons, either as principals or sureties, it shall not be neces- xvii. Parties to 
 sary to bring: before the court, as parties to a suit concerninaf '"''' "^^ '^"^ '^■ 
 
 JO '1 O LATiqN OF 
 
 such demand, all the persons liable thereto ; but the plaintiff t,.istek and 
 
 ' ' Cestui qvR 
 
 may proceed against one or more of the persons severally Tkcst. 
 liable." », „, „. 
 
 thi-m. The 321. 
 
 This order renders it unnecessary in a suit fur a breach '>^ jll'f'' °^ *"* 
 trust to bring all tlie parlies to the breach of trust before the 
 court. (The Att. Gen. v. The Corporation of Leicester, 7 
 Beav. 176 :) and indeed, a suit may be instituted against one 
 of them alone. Kellawny v. Johnson, 5 Beav. 319. On this 
 subject, see also Att. Gen. v. Wilson, Cr. & Phil. 1 ; and 
 Seddon v. Connell, 10 Sim. 79. 
 
 The 32nd*order extends to the simple case of a demand on 
 executors jointly implicated in a breach of trust. Perry v. 
 Knott, 4 Beav. 179 : 5 Beav. 293. But it does not apply to an 
 administration suit. So that where executors commit a breach 
 of trust, and one dies before any suit is instituted, his per- 
 sonal representatives are necessary parties to a suit institut- 
 ed for an administration of the testator's estate, and for relief 
 in respect- of such breach of trust. Hall v. Austin, 10 Jur. 
 452. See also Biggs v. Penn, 4 Hare, 439 ; and observations 
 thereon, 4 Hare, 624. 
 
 And where real property is left to trustees upon trust for 482 
 
 one of them for life, subject to charges incident thereto, and 
 that party is suffered by the others to receive the rents and 
 profits, without satisfying such charges in the manner direct- 
 ed, a suit cannot be instituted for the breach of trust against 
 such others of them alone, notwithstanding the 32nd order. 
 Shijiton V, Raivlins, 4 Hare, 619. 
 
 2. Tenant for life. — And where executors transfer a stock Tenant for ii& 
 into the joint names of one of them and of the tenant for life '^^° breach"oJ 
 of the stock, and, on the death of that executor, the tenant for *^*'- 
 life sells out the stock, and applies it to his own use ; in such 
 case, although under the 32nd order a bill may bo filed against 
 any one of the executors singly in respect of the first breach 
 of trust in transferring the stock ; yet the tenant for life, or 
 his representative, is a necessary party, inasmuch as ho is the 
 party, or the representative of the party, by whom the first 
 breach of trust was made an occasion of actual loss to the oth- 
 er parties beneficially interested. — Perry v. Knott, 5 Beav- 
 293.
 
 432 NOTE ON PARTIES. [S. XVII. 
 
 •^^1=^'^''^'^^^° 4. Cestuis que trust. — A trustee may file a bill against his 
 UIT8 PERTAIN- -» JO 
 
 iNG TO THE BE- co-trustec, to recover the trust fund, without makinor the ces- 
 
 LATION OF ' ' O 
 
 Trustee and tuis que trust parties. May v. Selhy, 1 Y. ds C. Ch. C. 235. 
 
 Cestui que ■'■ ... 
 
 Trust. And to a suit instituted by the representatives of a deceased 
 Cestuis que trust ^I'^stoe against surviving cotrustees for a contribution to- 
 rn a suit by a wards makinff erood a loss occasioned by a breach of trust, the 
 
 trustee against '"so J ' 
 
 his co-trustee, ccsiuis que trust are not necessary parties. Hohinson v. Evans, 
 
 Cestuis que trust, . • • i i 
 
 in a suit by the 7 Jur. 738, V. C. W. And a suit may be maintained by a 
 
 representatives . ^ , . , 
 
 of a trustee trustee agamst one or several cestuis que trust, to recover the 
 
 against survi- .. ., ,., , . 
 
 vingco-trnstees. trust Securities, without making the other cestuis que trust par- 
 ina 6uft"*to'^re- ties. Bridget v. Hames, 1 Call. 72. 
 
 securities! *'^"^* Where a suit is instituted by creditors to set aside an assign- 
 in^T'^irto^set n^ent made by a father to a trustee for his children, they must 
 ment ^ ^®"'°' be defendants, although they were not parties to the assign- 
 ment. Tenchard v. Finch, 4 Law J. (N. S.) 177, M. R. 
 Cestuuque trust' To a bill by a trustee of a sum secured by a policy of as- 
 
 01 a sum secu- •' j r J 
 
 red by a policy, surance, to compel the person on whose life the policy was 
 eifected, and who had fraudulently surrendered it, to pay 
 the amount assured, the cestuis que trust are necessary parties, 
 in a case where, if they were dead, the person, so surrender- 
 ing the policy would have been entitled to the benefit of the 
 policy. Fortescue v. Barnett, 2 Law J. (N. S.) 98, V. C. 
 whom^is'cesitt^ Where property is bequeathed in favour of a person for 
 grue trust, pro- ]jfg ^jj^j after his death to such persons as shall then be the 
 
 perty IS limited. -r 
 
 433 next of kin of the testator, and a bill is filed for the appoint- 
 
 ment of new trustees, the next of kin of the testator at the 
 time of filing the bill are necessary parties. Wardell v. Clax- 
 ton. 1 Y. & C. Ch.C. 265. 
 
 (As to cestuis que trust of a prior term, see Ellison v. Cookson, 
 supra, p. 431.) 
 
 Cestuis que trust By the 30th Order of August, 1841, (1) " in all suits concern- 
 represented un- . , ,.,. ,. 1-I- Ti 
 derthe 3uth or- mg leal estate which is vested m trustees by devise, and such 
 
 °' ■ trustees are competent to sell and give discharges for the pro- 
 ceeds of the sale, and for the rents and profits of the estate, 
 such trustees shall represent the persons beneficially inter- 
 ested in the estate or the proceeds, or the rents and profits, in 
 
 (1) This rule has been adopted by the Supreme Court of the United 
 States. See 49th of the Equity Rules Sup. Ct. U. S., Jan. T., 1842.
 
 S. XVII.] NOTE ON PARTIES. 43S 
 
 the same manner, and to the same extent, as the executors or lf^,T3^pKVTiiN^ 
 administrators in suits concerning personal estate represent ''"°7tion"of" 
 the persons beneficially interested in such personal estate ; Trustee *nd 
 and in such cases it shall not be necessary to make the per- Tkcbt. 
 sons beneficially interested in such real estate, or rents and 
 profits, parties to the suit. But the court may upon conside- 
 ration of the matter on the hearing, if it shall so think fit, 
 order such persons to be made parties." 
 
 Trustees may represent the persons beneficially interested, 
 in the proceeds of an estate under this order, although there 
 is no clause in the will empowering the trustees to give dis- 
 charges. Savory v. Barber, 4 Hare, 125. And they may do 
 this even where the suit is by some of the persons beneficially 
 interested, and where their conduct is impeached in several 
 particulars. Osborne v. Foreman, 2 Hare, 656. 
 
 But this order does not apply to a case in which the equit- 
 able interest only is vested in trustees by demise, although they 
 are empowered to give discharges for the proceeds. Turner 
 v. Hind, 12 Sim. 414. 
 
 The order applies to those cases in which trustees have 
 a present absolute power to sell real estate, and not to cases 
 where they have no power to sell, except with the consent of 
 another person. Lloyd v. Smith, 13 Sim. 457. 
 
 Nor does it apply where the bill asks that the whole of the 
 testator's real and personal estate may be administered. Mil- 
 ler V. Huddleston, 13 Sim. 467. 
 
 4. Other Parties. — Where a trustee of personal property Person joining 
 belonging to a club improperly sells it, and another member price of propo°- 
 of the club joins in the receipt for the money, but does not re- eoidbya'trustoe. 
 ceive any part of it, he (the latter) is not a necessary party to 
 a suit against such trustee in respect of the sale. Richardson 
 V. Hasting, 7 Beav. 301. 
 
 Where some of the plaintiffs in a suit for carrying the trusts 434 
 
 of a will into execution mortgage their equitable interests pen- '^'^r^^g?.*" "Jj^. 
 ding the suit, the mortgagee is a necessary party. Solomon v. •■""• 
 Solomon, 13 Sim. 516.
 
 434 NOTE ON PARTIES. [S. XVIII. 
 
 tJ'suim'^b"'^^ XVIII. Parties to Suits between Vendor and Pur- 
 
 TWEKN Vendor ^ ^ , , 
 
 AND PUJICHASER. CnASER.'^(lj 
 
 1. General rule. — To a common bill for a specific perform- 
 ance the parties to the contract are in general the only 
 proper parties. Wood v. White, 4 M. & C. 46 J. 
 
 * See Sec. VI. 
 
 (1) Although a person purchases premises subject to a mortgage, and 
 assumes (as between the seller who originally gave the mortj^age and 
 himself) the payment of tlie mortgage debt, as a part of the purchase 
 money, and afterwards conveys the premises to another in like manner 
 subject to the mortgage, he is not a proper party to a bill of foreclosure, 
 there is no sufficient covenant or privity of contract between him and 
 the holder of the mortgage to make him liable for any deficiency upon 
 the sale. Lockwood v. Benedict, 3 Edwards' Ch. K. 472. 
 
 No decree can be had against a purchaser without notice of a lien, 
 unless his vendor, who was a purchaser with notice, be made a party. 
 Singleton v. GayJe, 8 Porter's Ala. R. 271. 
 
 On a bill filed by vendee for rescission of a contract for the purchase 
 of a tract of land, if it appear that vendee has aliened and delivered 
 possession of the land to another, such alienee mnst be made a party 
 before any decree for rescission can be pronounced. Yoder v. Swear- 
 ingen, 6 J. J. Marsh, Ky. R. 619. 
 
 A bill either to rescind or to enforce the specific execution of a con- 
 tract for the sale of land, cannot be sustained against one who had 
 guaranteed the contract, without making the principal vendor or his 
 representative a party. Oliver v. Dix, 1 Dev. &. Battle, N. C. R. 
 (Eq.) 168. 
 
 Where it is sought to vacate a sale of real estate, the purchaser, or 
 in case of his death his heirs, ought regularly to be parties to the 
 cause. Buchanan v. Torrance, 11 Gill & John. (Maryland) R. 342. 
 
 The heirs of the vendee are necessary parties after his death, in a 
 bill filed by his assignee against the vendor, for a specific performance. 
 Lord V. Underdunck, 1 Sand. Ch. R. 46. 
 
 The vendor of land must be made a party to a bill in chancery en- 
 joining the purchase money for a defect of title, not withstanding; the 
 sale was made by an agent, the agent took the bond for the purchase 
 money payable to himself, and is made a party. SweeCs heirst ^c. v. 
 Briggs, 6 Littell's Ky. R. 18. 
 
 A purchaser under contract, who enters into actual possession of 
 lands, in pursuance of the terms of agreement, makes improvements, 
 &-C., should be made a party to a bill in equity filed to avoid the title 
 of his vendor, so that the court may make such order in the premises 
 as will be just and equitable in reference to the rights of all concerned.
 
 S. XVIII.] NOTE ON PARTIES. 434 
 
 RTCXS 
 
 TO Suits be- 
 
 2. Purchaser and his trustees and representatives, !^v. — Where ^^'"g ''■* 
 two houses, held under one lease, are sold in separate lots ; tween Vkndo« 
 
 . . ' _ AND I'f KCHASKR. 
 
 and It IS stipulated that the purchasers shall be parties to each "^^y^^""^^ 
 other's assignment, the purchaser of the one lot; if ready to one"io't*^?n'^R'^8^'t 
 concur in the assiornment of the other lot, is not a necessary f""" a epccific 
 
 ° _ •' pertoriuiince of 
 
 party to a suit fijr the specific performance of the purchase of 'lie purchnse of 
 that lot. Faterson v. Long, 5 Beav. 186. 
 
 But to a bill by a purchaser for a specific performance of onc^ot,ina''Buit 
 a contract for sale of one lot, the purchaser of another lot, ^other''*""^ °^ 
 which at the time of the sale was agreed to be augmented 
 with a part of the former lot, is a necessary party ; because, 
 it would be improper to leave tlie vendor exposed to anothei 
 suit by the purchaser of the lot agreed to be augmented, 3Ia- 
 son V. Franklin, 1 Y. & C. Ch. C. 243. 
 
 Where trustees for sale of leaseholds file a bill against the Purchiiser, in • 
 
 Till 11-1- • i-i- 1 • r ^"'' ^" oblige ■ 
 
 Jnalord to oblige him to give his hcense to the assignment oi landlord to give 
 the premises to a person to whom they have been sold, the sign.^ 
 purchaser is a necessary party ; because, if he were not made 
 a party, the landlord might be harassed with another suit for 
 the same purpose by the purchaser. Maule v. The Duke of 
 Beaufort, 1 lluss. 349. 
 
 " The original vendee of an estate is not a necessary party °r,^n''rTu1t' 
 to a bill against his assignee for a specific performance of an "f '"Vor 'a « **- 
 
 If he is not made such party, and a dicree is obtained avoiding tlic 
 title of his vendor on a bill filed by a creditor of the grantor of the ven- 
 dor and such creditor becomes a purchaser of the legal estate of his 
 debtor, at a sheriff's sale, under an execution on the judgment in his 
 favor, and brings ejf^ctmont for the recovery of the land, he is not en- 
 titled to recover. Park v. Jackson, 1 1 Wendell's R. 44'2. 
 
 Where the vendor is dead all his 1 eirs at law should be parlies to a 
 bill to set aside the sale on the ground of fraud upon the part of the 
 vendee. Livingston v. The Peru Iron Co, and others, 2 Paigc'si Ch' 
 R. 390. 
 
 If the vendor makes a subsequent conveyance, while the frauddlent 
 vendee is in actual possession, claiming the land under his prior pur- 
 chase, the subsequent conveyance is inoperative, and a suit to set aside 
 the first sale must be brought in the name of the vendor, or Lis legal 
 representatives if he is dead. I hid. 
 
 The plaintiff who seeks a legal title from one who had notice of \w 
 equity, must make the person a party from whom his equity is derived 
 and who might be affected by the decree. Smith v. Shane 4" Meigt, 
 1 McLean R. 22, 31. 
 
 ciSc perform- 
 ance
 
 434 NOTE ON PARTIES. [S. XVIIL 
 
 ^To'sufw""" agreement to purchase." Hall v. Lever, 3 Y. & C. Eq. Ex. 
 
 TWBEN Vendor Q^ 191. 
 
 AND I'CRCHASER. 
 
 V-^'V^^ Where a bill for a specific performance is filed by a vendor 
 
 whom a'^°pur- agaiiist a person who disclosed to the vendor that he made 
 
 chase was made, jj^g purchase for his trustee, the trustee must be a party to the 
 
 suit. Wynniat v. Lindo, Taml. 512. 
 
 Cestuis gue trusi To a bill bv a trustee of property against the vendor there- 
 claiming under • n i 
 a purchaser, in a of for a conveyance, the persons in trust for whom it was litn- 
 
 8uit for a con- .-1,1,, 
 
 veyance from ited to such trustee by the purchaser are necessary parties. 
 AQK Josting V. Karr, 3 Beav. 694. 
 
 Where a bill is filed to set aside a conveyance made to the 
 Heir and person- defendant, and the defendant makes a conveyance and lease 
 
 al representa- ' '' 
 
 tive of a pur- pendente lite, his heir is a proper party to a supplemental bill 
 
 chaser who has •* _ ' tr r c J rr 
 
 resold pending a against the purchaser and lessee; because his heir ouffht to 
 
 suit lor setting . . , ^ . ° , . 
 
 aside the pur- join in the reconveyance ; and his personal representative is 
 also a proper party, because the plaintiff is entitled to an ac- 
 count of the rents which the defendant might have received, 
 if the lands had not been sold or leased. Trevelyan v. White, 
 1 Beav. 588. 
 
 Heir of a ven- 3. Other parties to suits between vendor and purchaser. — 
 
 dor, in a suit by ^ , 
 
 his administra- The heir at law of the vendor of real estate is a necessary 
 
 tor for specific .ii i.. 
 
 performance. party to a suit by the administrator of the vendor against the 
 purchaser for specific performance of the contract, even 
 though the legal estate is outstanding in a trustee. Roberts^ 
 V. Marchant, 1 Hare, 547. 
 
 to rescind a con- Where a husband, who is seised of an estate in right of his 
 
 tract for a sale of -r- ^ . ^ n-.. 'C'^ i* ji-* T 
 
 her estate by her wiie, contracts to sell it, as II it wcre his own; and his wiie, 
 '^^ ^ ■ even if after his decease she could adopt the contract and en- 
 
 force a specific performance thereof, does not attempt to do 
 so, she is not a necessary party to a bill of revivor filed by 
 the purchaser against the husband's executor to rescind the 
 contract on the ground of fraud. Humphreys v. Hollis, 1 
 Jac. 73. 
 tenwft^fonife^n Where a bill for a specific performance is filed by a per- 
 a suit for speci- gQ^ ^yho has Contracted to purchase the absolute legal and 
 
 fie performance. _ _ ^ ° 
 
 equitable interest in a mortgaged estate from a person who 
 claims to be entitled to the equity of redemption, the mort- 
 gagee, who has not joined in the contract, must not be made 
 a defendant ; because he has no interest in the specific per- 
 formance of the contract: the performance of it cannot affect
 
 S. XVIII.] NOTE ON PARTIES. 435 
 
 his security or interfere with his remedies :, the purchaser is ^^"' Partim 
 
 , ' TO SuiTd BE- 
 
 not entitled to redeem until the completion of the contract, twke.v vexdob 
 and then the mortgagee is not at liberty to dispute hia title, V.^^-v^^-^ 
 or to withhold the estate on repayment of the mortgage 
 money. Nor in such case can a person who claims a life es- 
 tate in the equity of redemption, but has not joined in the 
 contract, be made a defendant, though the mortgagee is not 
 willing to convey to the purchaser without having competent 
 authority for so doing : for, as we have seen, the general rule 
 is, that to a bill for specific performance, the parties to the 
 contract are the only proper parties ; and there is no ground 
 for departure from the general rule in this case. Tasker v- 
 Small, 3 My. & C. 63. See also Hall v. Lever, 3 Y. & C. Eq. 
 Ex. 191, and White v. Wood, 4 My. & C. 460. 
 If a purchaser of a copyhold estate re-sells it before it is Mort.^asoc of » 
 
 ] 1 ^ 1 • 1 ^1 ^\ c ^ 1 . purchnaer not a 
 
 surrendered to him, and thereupon the nrst vendor agrees to noccasary party 
 surrender it to the second vendee ; and then the second ven- purchaae/ '"*^ 
 dee borrows money and agrees to surrender the copyhold to "samstaTcndor. 
 the lender by way of mortgage, who gives notice of such 
 agreement to the first vendor, and requires the surrender to 
 be made to him (the mortgagee), the latter is not a necessary 
 party to a bill filed by the second vendee against the first 
 vendor, praying a surrender to be made to him, the second 
 
 vendee. v. TFoZ/b/J, 4 Russ. 372. 
 
 In a suit for the specific performance of a covenant to pay Payp. in,« ««ut 
 
 *• * . . '°'' "Pacific pcr- 
 
 a sum of money to a person for the use of the plaintiff, and to fomiHuce of • 
 
 . ■, ■, 1 , covcnout to pay. 
 
 secure an annuity by a charge on real estate, tlie person to incuuibranccri. 
 
 , , . It'll- I ins suit for spe- 
 
 whom the money is covenanted to be paid, and incumbrancers cific pirfonn- 
 on the real estate whose incumbrances are alleged to have nant to socu^re an 
 been created in fraud of the plaintiff, are necessary parties, ""tau-'^ '*° 
 Paterson v. Wcllesleij, 6 Law J. (N. S.) 190, V. C. 
 
 A man who after going through the marriage ceremony fn^*'i"°"c'h2r™ 
 with a woman, joins with her as her husband in assigning her '"'' °^ I'usi'imJ 
 interest in a trust fund, but was at that time married to ano. 
 ther woman, is not a necessary party to a suit for the bene- 
 fit of such assignment. Sturgcv. Star, 2 M. & K. 19«). 
 
 A person is not a necessary party merely because one ob- Tfnant m a »iiit 
 
 ' • • • 1 o I'pocitic per- 
 
 iect of the bill is to restrain an act by which he is aflocted. So lonnancc and to 
 
 1 /. •!• I' ri'»triunlrc«paM 
 
 that where a bill is filed by a vendor for a specihc pertormanco 
 and to restrain a trespass by the purchaser in the mean time.
 
 436 NOTE ON PARTIES. [S. XVIIL 
 
 xviii. Parties i]^q tenant, not beinsf a party to the purchase contract, is not 
 
 TO SniTS BE- O r J r717 ^t 
 
 TWEEN Vendor a necessarv party to the suit. Robertson v. The Great Western 
 
 AND PuaCIUSER. ^ CI • 
 
 ^.^^^V"^^ Railway Company, 10 Sim. 314. 
 
 Third party to Accordinfj to the case of Greathed v. The London and South- 
 
 an agreement. ° 
 
 Western Raihoay Company, the court will not by way of in- 
 junction enforce a distinct subsidiary part of an agreement 
 between two parties in the absence of a third party to the 
 agreement, and without giving relief in respect of the whole of 
 such agreement. 10 Jur. 343.
 
 INDEX 
 
 A. 
 
 ABATEMENT, 68—72, 83, 120. 
 
 by what circumstances occasioned, 68, et sea. 
 how suit restored, 83. 
 See Death. 
 Marriage. 
 ACCIDENT, 134, 146, 149, 150, 153. 
 ACCOUNT, 141, 142, 145. 
 
 may be limited to the time of filing the bill, 318. 
 stated, see Plea. 
 
 where there is error or fraud in, 302, 30fi, note (a). 
 See Answer. 
 
 ACKNOWLEDGMENT, 
 
 with reference to the statute of limitations, 314, 315, 
 ADDRESS, see Bill. 
 
 ADMINISTRATION, 
 
 limited to subject of suit, 204, 205. 
 See Parties. (Administrator.) 
 ADMINISTRATOR, see Parties. 
 
 Plea negative. 
 AFFIDAVIT, see De bene esse. 
 Delivery. 
 
 Discovery of Deeds of Writings. 
 Execution. 
 Interpleader. 
 
 Perpetuation op Testimony. 
 Relief upon Deeds or Writings. 
 Review, Bill of. 
 Supplemental Bill in nature of Bill op.
 
 438 INDEX. 
 
 AGENT, 
 
 principal, in niany cases, has aright to discovery from, 185. 
 privity between his vendee and principal, ih. 
 notice to, his notice to principal, 323. 
 See Interpleader. 
 AGREEMENT, 
 
 specific performance of 140, 141. 
 
 , effect of part performance, 309. 
 by parol \ as to confession of, in answer to bill for specific per- 
 
 ( formance, 310, 311. 
 to refer to arbitration, see Plea. 
 
 not specifically performed, 308. 
 ALIEN, see Discovery. 
 Persons. 
 Plea. 
 ALIENATION, pendentelite . 
 
 effect of, where compulsory, 78, et seq, 
 where voluntary, 88, et seq. 
 ALLEGATION, 
 
 as to frame and sufficiency of, 45 — 49. 
 See Demurrer. 
 AMENDMENT of pleadings generally, 19. 
 See Answer. 
 Bill, 
 
 Demurrer. 
 Infant. 
 Plea. 
 ANSWER, 15, 16, 123, 127, 35 7. 
 principal end of requiring, 51. 
 general nature of, 357. 
 form of, 374. 
 
 where the proper mode of defence, 362. 
 what must be answered or not, 52, note, 358 — 372. 
 ansvi^er of a sole defendant, 358, note, 
 necessity of putting in some answer, though not required to 
 
 answer any interrogatories, 358, note, 
 must not be evasive, but must meet substance of each charge, 
 
 366. 
 must be particular to particular charges, 366 — 368. 
 manner in which sufficiency of determined, and deficiency 
 supplied, 376—378.
 
 INDEX. 489 
 
 ANSWE R — continued- 
 
 as to materiality of, 365. 
 
 as to scandalous matter, 359, note. 
 
 scandal or impertinence in, 372, 373, 379. 
 
 where it must be signed by counsel, 376. 
 
 of a Quaker; or of a Moravian ; or of an infidel, as a Jew or 
 
 a Mahometan, 10, note. 
 
 of a trustee, incumbrancer, or heir, 365, note (/«). 
 
 of new trustees, 374, note. 
 
 of a new master of a school, 375, note. 
 
 of a stakeholder, 374 note. 
 
 of an infant, 375. 
 
 of an idiot or lunatic, 376. 
 
 of a feme covert, see Married Woman, 
 
 of attorney-general, 376, note. 
 
 as to accounts, 368, 369, 
 
 , ( demurrer, 381. 
 overrules < i „ orr, qq, 
 ( plea. 351, 3Sl. 
 
 where defendant may thereby protect himself from making full 
 discovery, 2o6. 
 
 discovery enforced by, if connected with plaintiff's title, 370, 
 371. 
 
 discovery enf)rced by, abhough plaintiff's title denied, 369 — 
 371. 
 
 discovery not enforced by. if ground of plaintiff's title be de- 
 nied, 371. 
 
 discovery not enforced by, if counter title be set up, .370. 
 
 as to discovery independent of plaititiff's title being compelled, 
 371. 
 
 where defendant sets up modus ; denies plaintiff's claim with- 
 out admitting assets ; denies custom ; or denies partnership 
 and privity ; and declines to set forth account 369, 371. 
 
 . „ , ( when, 38'), 390—392. 
 amendment of, allowed, < . „„ , „,-^ 
 
 ( at hearmg, 39J, 395. 
 
 supplemental, 336, S87. . 
 
 in support of plea, see Plf,.\, and see, 270, note vISO, et teq., 
 I'Si, 2S6, 347, 34«". 
 
 may be excepted to, 351. 
 accompanying plea or domurrvir, if the latter deft'iii c U.- uvei - 
 
 ruled, must bo excepted to. 378. 
 read to counterplead plea, 3J1, 356. 
 38
 
 440 INDEX. 
 
 ANS WE R^-continued. 
 
 after plea or demurrer overruled, 17, 357. 
 further to original bill, 19, 379. 
 
 insisting on same matter as first after exceptions thereto 
 allowed, 377, 378. 
 to amended bill, 379, 383. 
 
 as to right of each defendant to file separate, 358, note {d). 
 objecting to bill of revivor, 336, 337. 
 as to reading answ^er to a cross-bill, 240, note. 
 • as to such mode of defence to a bill of review, 340. 
 and disclaimer, 380. 
 See Agreement. 
 Combination. 
 Dependant. 
 Demurrer. 
 Exceptions. 
 Infant. 
 
 Interrogatories. 
 Plea. 
 
 Statute or Frauds. 
 Time. 
 Trust. 
 APPEAL, see Remainder. 
 APPEARANCE, 
 ■ to original bill. 55. 
 to bill of revivor, 93. 
 
 ARBITRATOR, see Agreement. 
 Demurrer. 
 Plea. 
 
 ASSETS, 148, 158. 
 
 See Answer. 
 ASSIGNMENT without license, see Demurrer to Discovert. 
 ASSIGNOR, see Parties. 
 ASSIGNEE, 
 
 of party to a decree, bill by, 115. 
 See Demurrer. 
 Parties. 
 ATTAINDER, see Persons. 
 Plea.
 
 INDEX. 441 
 
 ATTORNEY, *ee Parties. 
 
 Plea to Discovery. 
 ATTORNEY-GENERAL, 23, 120, 123, 195, 196. 
 See Answer. 
 Crown. 
 Defendant. 
 Parties. 
 
 AVERMENTS, see Bill. 
 AVERMENTS IN PLEA, 
 
 necessary, 347. 
 
 object of, 348. 
 
 must be sufficient to support it, 348. 
 
 should in general be positive, 347. 
 
 may be negative, 347, 348. 
 
 instances, 309, 313, 322, 340. 
 See Plea. 
 AWARD, see Plea. 
 
 B. 
 
 BANKRUPT. 
 
 bill by, not stating his bankruptcy, 329, note (n). 
 as to discovery by, 330, notes. 
 
 how to act where his assignees refuse to institute or to prose- 
 cute a suit, 81. 
 
 See Defendant. 
 Demurrer. 
 Plaintiff. 
 Plea. 
 BANKRUPTCY, 
 
 does not abate a suit, but merely renders it defective, 79 — 93, 
 commission how to be disputed, 80, note. 
 BARGAIN AND SALE, 
 
 without enrolment, 138. 
 BILL IN CHANCERY, 
 what proper object of, 8. 
 what generally sought by, 8, 9. 
 by whom it may be exliibited, see Persons, PLAiNTirr, 22, 
 
 et seq. 
 against whom it may be exhibited, see Defendant, Persons, 
 and 32, et seq.
 
 442 INDEX. 
 
 BILL IN CRAl^CERY— continued. 
 must be signed by counsel, 57. 
 
 serving a copy of bill under 23d order of Aug. 1841, 11, note, 
 whence arises variety of, 18. 
 the several kinds and distinctions of, 35, loO. 
 the frame and end of the several kinds of, 38. 
 original, 35, 39. 
 not original, 35, 67. 
 in nature of original, 37. 
 original, form of, 49. 
 
 usually consists ef nine parts, 49. 
 
 1. Address, 7, 99. 
 
 2. Names and descriptions of plaintiff's, 49. 
 
 3. Stating part, 39, 45, 49. 
 
 4. Allegation of confederacy and combination, 43 — 45, SO. 
 
 5. Charging part, 50, 5Q. 
 
 6. Averment as to defect of remedy elsewhere, 50. 
 
 7. Interrogating pait, 51 — 54, 56. 
 
 8. Prayer for relief, and discovery, 51, 54. 
 
 9. Prayer for process, 39, 40, 54, 55. 
 Necessary contents of, 45. 
 
 . Mode of allegation, ib. 
 
 want of sufficient particularity, 45, note, 
 mode of putting a specific allegation, 47, note. 
 
 rule of construction, 48, note. 
 
 demurrable for vagueness and uncertainty, 48, note. 
 
 original, praying relief, 36, 39. 
 not praying relief, 36, 61. 
 
 praying relief and discovery distinct from each other, 8, note. 
 
 praying general decree, 36, 39. 
 
 of interpleader, see Interpleader, and 36, 39, 58, 164. 
 
 praying writ of certiorari, see Certiorari, and 9, 36, 39, 60. 
 
 to perpetuate testimony, see Perpetuation, Plea, and 36, 62, 
 172. 
 
 for discovery, see Costs, Defds, Discovery, and 36, 64, 172. 
 
 of supplement, *ee Decree, Demurrer, Supplement, and 19, 
 36, 73, 78, 90, 389. 
 
 of revivor, see Costs, Creditors, Decree, Demurrer, Re- 
 vivor, and 37, 83, 91, 389. 
 
 of revivor and supplement, «fe Demurrer, Hearing, and 37, 
 85, 97.
 
 INDEX. 444 
 
 • 
 BILL IN CKAl^CERY— continued. 
 
 cross, *ee Cross-bill, Hearing, and 37, 97. 
 
 of review, see Answer, Demurrer, Hearing, Plea, Review, 
 
 and 37, 97, 101. 
 
 in nature of bill of review, see Di murrer, Hearing, Review, 
 
 and 37, 97,112. 
 
 to impeach a decree on the ground of fraud, see Decree, Plka, 
 
 and 37,97, 112—114. 
 
 to suspend the operation of a decree, 37, 97, 114. 
 
 to carry a decree into execution, see Demurrer, Plea, and 37, 
 
 97,115. 
 
 in nature of bill of revivor, see Distinction, and 38,86, 97, 117. 
 
 in nature of bill of supplement, *ee Distinction, Supplement, 
 
 and 38, 80, 86, 97, 118. 
 
 supplemental in nature of bill of, revivor, 82. 
 
 supplemental in nature of bill of review, see Supplemental, 
 
 and 108. 
 
 amendment of, 
 
 generally, 67, 245, 237, 385—388. 
 
 as to prayer, 3'^3, 394. 
 
 as to parties, 388, 389. 
 
 as to extent to which liberty may be carried, 383, 388, 389, 
 
 effect in relation to original bill, 383. 
 
 after plea or demurrer filed, 394, note (a). 
 
 upon hearing of demurrer, 254, 255. 
 
 after allowance of demurrer for want of parties, 208. 
 
 after allowance of plea to part thereof, not of course. 383, 
 
 note (e). 
 
 after liberty to make, given at hearing, 3-9, 390, 394. 
 
 neglect of, practice, in case of, 39i>, nute {k). 
 
 where counsel's signature required to. 384, note. 
 
 See Assignee. 
 
 Customs. 
 
 De bene esse. 
 
 Decree. 
 
 Deliverv. 
 
 Examination. 
 
 Execution. 
 
 New Trial. 
 
 Persons. 
 
 Quia timet.
 
 444 INDEX. 
 
 BONDS, 
 
 lost, 135. 
 BOUNDARIES, 
 
 obliterated, 138. 
 
 C. 
 
 CANCELLATION OF INSTRUMENTS, 150, 151 
 CERTIORARI, 
 
 proceedings upon a bill praying writ of, 60. 
 See Bill. 
 Defence. 
 Plea. 
 
 CESTUI QUE TRUSTS, see Parties. 
 CHAMPERTY, see Demurrer to Discovert. 
 
 CHANCERY, see Bill. 
 
 Jurisdiction. 
 CHANCELLOR, 7. 
 
 CHATTELS, SPECIFIC, 
 
 detention of, 139. 
 CHARITY, 
 
 suit on behalf of, 7. 
 
 indulgence of Court upon, 42, 43. 
 See Information. 
 Petition. 
 
 CHOSE IN ACTION, 
 
 See Parties. 
 COMBINATION, 
 
 charge of, answer to, 44. 
 
 as to denial of, by answer, upon a demurrer, for multifarious- 
 ness, 209. 
 as to denial of, by answer, after usual order for time, 247, 249. 
 
 COMMISSIONERS, LORDS, 7. 
 
 COMMITTEES, 
 
 of idiots or lunatics, 31.
 
 INDEX. 445 
 
 COMMITTEES— continued. 
 
 defend suits brought against them, 32, 124. 
 See Parties. 
 
 COMMON LAW, *ce Courts. 
 
 CONTRACTS, see Agreements. 
 
 CONVEYANCE, see Plea. 
 
 'copyhold, 
 
 as to restraining waste by tenant of, 162. 
 
 COPYRIGHT, 
 
 as to restraining infringement of, 161, 170. 
 
 there must be a separate bill against each invader, 210, note. 
 
 CORPORATIONS, 
 
 suits by, 25. 
 
 defence of suits by, 124. 
 
 aggregate, see Defendant. 
 
 officers of, made defendants, .329, note. 
 
 COSTS, 
 
 where awarded against next friend of infant, 27, 28. 
 where infant on attaining age becomes liable to, 28. 
 whereawarded against next friend of married woman, 30, n. (d). 
 
 against relator, 24, 31. note (I), 120. 
 where bill of revivor for, allowed, 239, 
 on bill of discovery, 237. 
 See Impertinence. 
 Scandal. 
 
 COUNCIL, see Discovery. 
 
 CONFIDENCE, jfe Plea to Discovery. 
 
 COUNSEL, as to signature of, see Answer. 
 
 Bill. 
 • Demurrer. 
 
 Exceptions. 
 Plea. 
 bill by, to recover fee, demurrer to allowed, 183. 
 as to discovery sought from, «ee Plea to Discovert. 
 as to costs by, see Impertinence. 
 Scandal.
 
 446 INDEX. 
 
 COURTS OF COMMON LAW, 
 
 limited character of jurisdiction, 3. 
 
 of equity supply defect in administration of justice by the courts 
 
 of common law, 4. 
 of inferior jurisdiction, 175. 
 
 CREDITORS, 
 
 suit by or on behalf of, 192, 193, 197. 
 revivor in a suit on behalf of creditors, 96. 
 decree in such suit, 193. 
 cross-bill by creditor, 100. 
 
 of a deceased person, have no privity with the debtors to his 
 estate, 185. 
 See Parties. 
 Plea. 
 CRIMINAL PROSECUTIONS, 
 
 not relieved against, 135. 
 CROSS-BILL, 
 
 where necessary, 97, 100. 
 frame of, 99. 
 
 of discovery against a lessor of tithes, 9S, note. 
 considered as a defence, admitting jurisdiction, 99. 
 where now dispensed with, although formerly necessary, 99, n. 
 in chancery to original bill in the exchequer, 97, note (x). 
 See Bill. 
 
 Creditors. 
 Demurrer. 
 Plea. 
 CROWN, 
 
 suits on behalf of, 7, 22. 
 
 where the attorney-general to be made a defendant on behalf 
 
 of, 32, 12.3, 199. 
 remedy on behalf of, in cases of nuisance and trespass, 169. 
 (See Suits. * 
 
 CUSTOM OR RIGHT, 
 
 bill to establish, 169, et seq. 
 See Answer. 
 
 D. 
 
 DEATH, 
 
 of party, where abatement caused by, 69, et seq.
 
 INDEX. 447 
 
 DE BENE ESSE, 
 
 bill for examination of witnesses, 62, 172, 173, 174. 
 affidavit in support of, 174. 
 See Demurrer. 
 DEBTOR, see Creditor. 
 
 Interpleader. 
 Parties. 
 DECREE, 
 
 as to review, reversal, and alteration of, 101, ct seq. 
 as to correction of formal error in, 109, note (r). 
 obtained by fraud, 112, 113. 
 bill to set aside, see Bill. 
 
 frame of bill fur that pupose, 114. 
 when altered on rehearing, and when on bill of review, 278,281 . 
 instance in which extended upon original bill, 117, note, 
 against person hiving a prior estate of inheiitance ; as to its 
 
 binding those in remainder, 200, 201. 
 bill of revivor subsequently to, 84. 
 
 See Assignee. , 
 
 Bill. 
 Creditor. 
 Demurrer. 
 Infant. 
 Plea. 
 
 Statute of Limitatkjns. 
 Supplement. 
 DEEDS, 
 
 rectified, or effect of controlled, 161. 
 See Cancellation. 
 Delivery. 
 Discovery. 
 Execution. 
 Plea. 
 DEFECT IN SUIT, 
 
 by what circumstances occasioned, 68, et seq , "^l, note,'82. 
 how supplied, 73, 8J. 
 DEFENCE TO A BILL, 9, 10, 123. 
 
 with regard to the jurisdiction of the court and the rights and 
 interests of the parties, 12, l.'l, 123. 
 39
 
 448 INDEX. 
 
 DEFENCE TO A BILL— continued. 
 
 on what it may be founded with reference to the bill, 14. 
 
 form of, 14, 15, 
 
 may be different to different parts of the bill, 15, 128. 
 
 none required to a bill of certiorari, 17. 
 DEFENDANT, 
 
 how change of interest in relation to, affects a suit, 69, et seq. 
 
 effect of his death or bankruptcy, 69, et seq. 82, 83. 
 
 peculiarity in prayer, where a peer or peeress, or lord of par- 
 liament, or the attorney-general, is, 40. 
 
 in what manner a commoner, a peer, or lord of parliament, or 
 a corporation aggregate, to answer, 10. 
 
 how and to what extent required to answer, 51, 54. 
 
 See Committees. 
 
 Corporations. 
 
 Idiots. 
 
 Infants. 
 
 Interrogatories. 
 
 Jurisdiction. 
 
 King. 
 
 Lunatics. 
 
 Married Woman. 
 
 Queen. 
 DELIVERY, 
 
 of deeds and writings, 150. 
 
 bill seeking such relief only need not be accompanied by affi- 
 davit, 147. 
 DEMURRER, 14, 123, 127. 
 
 causes and purposes of, 128. 
 
 effect of, 15, 128, 254, 255. 
 
 is upon matter apparent on bill, 128, 129. 
 
 truth of matters properly charged by bill admitted thereby, 249, 
 
 250. 
 form of, 248, 2'n. 
 
 must express the several causes of, 253. 
 must define to what it extends, ib. 
 in relation to substance or frame of bill, 243. 
 on ground of defective allegations in bill, 147, 189. 
 must be signed by counsel, 246. 
 where put in without oath, 246.
 
 INDEX. 449 
 
 DEMURRER— cow^mwei. 
 
 is overruled by answer or by plea, 24S, 249. 
 course of practice upon, 15, 2o4. 
 what is decided upon, 129, 130, 180. 
 
 effect off "^'"^^"°'^'^,- 
 ( overruling, 17. 
 
 may in some instances be allowed in part, 253. 
 
 effect of allowing, on matter of form, and on the merits, with 
 
 regard to a new bill, 255. 
 not generallypermitted after demurrer overruled, 253, n. (Z), 256. 
 upon overruling, leave in some instances given to put in ano- 
 ther less extended, 2.33, note [1). 
 ore tentts, 256. 
 
 division of the subject of demurrers, 130. 
 for want of equity, 145, 189. 
 to the jurisdiction, 132, et seq., 145, 148, 261. 
 on ground that another court has the proper jurisdiction, 14S, 
 
 17o, 176, et seq. 
 by one under personal disability, as an infant, a married wo. 
 
 man, an idiot, or a lunatic, 177. 
 for want of interest or title in plaintiff, 177 — 184. 
 on ground that plaintiff 's title is in litigation, 1S3. 
 for want of privity between plaintiff and defendant, sec Credi- 
 tor, and see 184 — 186. 
 for want of interest in the defendant, 186. 
 for want of interest in the case of 
 arbitrator, 187. 
 
 assignee without title, 187. 189. 
 
 bankrupt, 1S7, 188, • 
 
 heir not alluged to be bound, 189, 
 witness, 223, 
 for want of parties, *ce Parties, 2U7. 
 for multifariousness, 208 — 210. 
 
 to bill for part of a matter only to avoid multiplicity of suits, 211. 
 to a bill of interpleader, 166, 167. 
 
 to perpetuate testimony, 172, 18'2. 
 to examine witness dchenc esse, J 73, 174. 
 to discovery, causes of, 219, et seq. 
 for want of jurisdiction, 220. 
 
 . -. . ( plaintiff, 220, 222. 
 
 for want c.t m'erest in < '. „ , ,„^ „ ., 
 
 ) defendant, 220. 22S. 
 
 forw^" ybetweenplaintiffand defendant, 220,224
 
 450 INDEX. 
 
 DE MU RR E R— continued. 
 to discovery 
 
 for want of materiality in the discovery, 220, 226 — 229. 
 on ground that discovery might suhject defendant to penal- 
 ties, as in respect of usury, maintenance, champerty^ 
 
 simony, 229 — 231. 
 on ground that it might subject defendant to forfeiture of 
 
 interest, as upon assignment of lease, without lease, &c., 
 
 229, 233. 
 on ground that it might subject defendant to something in 
 
 nature of forfeiture, as in regard to profession of popery : 
 
 exception in regard to acts of trading by one declared 
 
 bankrupt, 225. 
 on ground that it might subject defendant to punishment, 
 
 as upon a criminal prosecution, 229, 230. 
 on ground that it might subject defendant to consequences 
 
 of a supposed crime, as in respect of forged deeds, 232. 
 on ground that it might subject defendant to imputation of 
 
 moral turpitude, 233. 
 effect of waiver by plaintiff of penalty or forfeiture, and of 
 
 agreement to make discovery, in preventing demurrer, 
 
 231,233. 
 on ground that defendant has in conscience a right equal to 
 
 that claimed by plaintiff, as in case of a purchaser for a 
 
 valuable consideration without notice, or jointress, 235. 
 on the ground that the discovery relates to the defendant's 
 
 title, 220, note, 
 for want of parties, for want of equity, or because a bill is 
 • brought for discovery of part of a mattei*, will nothold^ 
 
 although it seems a demurrer for multifariousness would 
 
 lie, 237. 
 to bill of supplement, 239. 
 
 on gi'ound that the bill might have been amended, or that 
 
 the new matter is immaterial, 239, 245. 
 to bill of revivor, 233, 239, 336. 
 to bill of revivor and supplement, 243. 
 to cross-bill, 240. 
 
 for want of equity, or to the jurisdiction, will not lie, 240. 
 to a bill of review, 241, 242, 338. 
 
 against opening the enrolment accompanying plea of 
 
 decree, 241 . 
 on ground of lapse of time, 242.
 
 INDEX. 451 
 
 DEMURRER— cow^mae^. 
 
 to a bill in nature of bill of review, 242. 
 to a supplemental bill in nature of a bill of review, 242. 
 to bill to carry a decree into execution, 243. 
 to amended bill, on ground that the new matter has arisen sub- 
 sequently to the filing of the original bill, 245. 
 to relief, where it extends to discovery, 214 — 218. 
 to discovery, and not to relief; consequence thereof, 219. 
 to relief, giving the discovery, 219, note (/»). 
 may fail as to relief, yet protect from the discovery, 219. 
 ■ amendment of, SSri, note (a). 
 See Answer . 
 Bill. / 
 
 Counsel. 
 Distinction. 
 Plea. 
 Time. 
 DEVISEE, see Parties. 
 DISCLAIMER, 15, 123, 127, 330, 357, 379. 
 form of, 380. 
 eifect of, 17, 380. 
 
 no replication should be filed to, 380. 
 as to decree upon, 380. 
 where inconsistent with answer, 381. 
 necessity of being accompanied by an answer, 38i), note. 
 See Answer. 
 DISCOVERY, R, 9, 13, 172. 
 bill for, see Bill. 
 
 objects of, 64, 65. 
 form of, 64 — 66. 
 
 no proceedings upon, after a sufficient answer, 17. 
 of deeds and writings, bill for, 66. 
 
 affidavit in support of unnecessary, 66, 146. 
 right to, and grounds of, 9, 357, 358. 
 
 when and when not enforced, see Demurrer, and 219, et teq. 
 of matter of scandal not enforced, 359. 
 in aid of the jurisdiction of this and other courts, 219, 220. 
 
 of the king in council, 264. 
 of defendant's title, not enforced, 220, 224, 225, 226. 
 whether of alienage enforced, 233, 234, 334.
 
 i 
 
 452 INDEX. 
 
 DISCOVERY— continued. 
 
 defence in respect of, although not of relief, 128, 132. 
 
 as to necessity of disclosing that an agreement or a trust was by 
 
 parol, with reference to the Statute of Frauds, 310, 311. 
 as to necessity of disclosing the time when the plaintiff's right 
 existed, with reference to the Statute of Limitations, 312, 
 et seq. 
 in support of an action or in aid of the defence thereto, 226, 227. 
 See Answer. 
 Bankrupt. 
 Costs. 
 Demurrer. 
 Plea. 
 Witness. 
 DISMISSION, 
 
 of bill, decree or order of, pleaded, 279. 
 DISTINCTION, 
 
 between demurier and plea, 347. 
 
 as to consequences, between an original bill, in the nature of a 
 bill of revivor, and an original bill in the nature of a supple- 
 mental bill, 86, 87. 
 DISTRESS, 
 
 defeated by accident, 138. 
 DOWER, 141, 143—145. 
 DOWRESS, 
 
 plaintiff, favour shown to, 319, note. 
 
 E. 
 
 ECCLESIASTICAL COURT, 292, note, 300. 
 
 ELECTION, 
 
 application that plaintiff may elect to proceed either at law or 
 
 in equity, 292. 
 course of practice upon election being made, ib. 
 
 ENGLISH BILL, 8. 
 EQUITY, 
 
 distinguished from positive law, 3.
 
 INDEX. 453 
 
 'ECiVlTY— continued. 
 
 want of, see Demurrer. 
 
 See Courts. , 
 
 Demurrer. 
 Plea. 
 Remedies. 
 EXAMINATION OF WII NESSES, 384. 
 
 abroad, bill for, 172, 227, notes. 
 EJECTMENT, 
 
 instances of relief afforded upon, 159, 167. 
 EXCEPTIONS,* 
 
 to answer, 361, 376. 
 
 form and practice upon, 376, 377. 
 
 accompanying demurrer, or plea, where, they constitute 
 admission of validity of the latter, and where not, 378 
 must be signed by counsel, 376. 
 of infant or attorney-general not allowed, 376. 
 reference of to a master, 377. 
 to master's report, ib. 
 
 upon a plea referred, 356, 357. 
 See Master. 
 
 EXCHEQUER AND EXCHEQUER CHAMBER, 
 
 Courts of, 6, notes. 
 EXCOMMUNICATION, *ee Persons, Plea. 
 EXECUTION, 
 
 of another deed upon discovery of contents of one cancelled, 
 bill for, 147. 
 
 affidavit not required to beannexed thereto, ib. 
 
 FEME COVERTE, see Married Woman. 
 Parties. 
 Persons. 
 FEOFFMENT, 
 
 without livery of seisin, 138. 
 FINE, see Plea. 
 
 effect of in various instances of legal and of equitable title 
 293—295.
 
 454 INDEX. 
 
 FOREIGN COURT, 290, note, 298. 
 FORFEITURE, see Demurrer to Discovery. 
 . Discovery. 
 
 Plea to Discovery. 
 Waste. 
 FORGERY, see Demurrer to Discovery. 
 FRAUD, see Bill to impeach Decree. Decree, 149, et seq. 
 
 negatived by averments in plea and answer, see Plea. 
 FRAUDS, Statute of, see Statute. 
 
 G. 
 
 GUARDIAN, ad litem. 
 for an infant, 124. 
 for an idiot or lunatic, 124. 
 for a person imbecile in mind, 125. 
 
 H. 
 
 HEARING, 
 
 relief not generally given at, if demurrer would have held, 130. 
 leave given at, to file 
 
 a cross-bill, 100, 395. 
 a bill of review, 395. 
 a bill in nature of bill of review, 395. 
 a bill of supplement, 389, 395, 
 See Amendment. 
 Infant. 
 
 Interrogatories. 
 HEIR, see Answer. 
 
 Demurrer. 
 
 Parties. 
 
 Plea. 
 
 HUSBAND, *6e Parties. 
 
 I. 
 
 IDIOTS AND LUNATICS, 
 suit on behalf of, 7. 
 
 by whom instituted, 31.
 
 INDEX. 455 
 
 IDIOTS AND L\JN AT ICS—continued. 
 defence on behalf of, to suit, 124. 
 See Answer. 
 Committees. 
 Demurrer. 
 Information. 
 Persons. 
 Plea. 
 
 IMBECILITY, see Plaintiff. 
 
 IMMATERIALITY, *ee Demurrer. 
 
 IMPERTINENCE, 57, note, 
 in bill, 57. 
 in answer, 372, 379. 
 costs, in strictness to be paid by the counsel, 58, 379. 
 
 INCUMBRANCER, see Answer. 
 
 INFANT, 
 
 suit on behalf of, 26. 
 
 by whom exhibited, 26. 
 where stayed, 29. 
 defence on behalf of, to a suit, 124, 
 
 his consent to institution of suit on his behalf unnecessary, 31. 
 indulgence granted tn, 
 
 in suits on behalf of, 28, 43, note (i), 67, note (w). 
 by allowing amendmrnt at hearing, 390. 
 where decree improperly affects, 114, 116, note. 
 See Answer. 
 Costs, 
 Demurrer. 
 Next Friend. 
 Persons. 
 Plea. 
 Suits. 
 
 INFORMATION, 7, 22, 24, 119. 
 
 on behalf of idiots and lunatics, 31. 
 
 charities, 121, note, 
 frame of, 121. 
 and bill, 24, 120. 
 frame of, 121,
 
 456 INDEX. 
 
 INHERITANCE. 
 
 See Decreb. 
 Parties. 
 INJUNCTION, 55, 157, et seq. 
 
 see the various subjects in this index upon which interposition 
 by, may be required. 
 INSOLVENCY, 
 
 See Defendant. 
 Plaintiff. 
 Plea. 
 INSTRUMENTS lost, see Bonds, and 146. 
 destroyed or suppressed, 135. 
 See Cancellation. 
 Deeds. 
 Delivery. 
 Execution. 
 INTERPLEADER, 164. 
 form of bill of, 59, 166. 
 bill of, by agent, 166, note (r). 
 by debtor, ib. 
 by tenant, ib. 
 as to affidavit and payment of money into court, and injunction 
 in case of, 59, 60, 166, 167. 
 See Bill. 
 
 Demurrer. • 
 
 Plea. 
 INTEROGATORIES, 
 
 object of particular interrogatories, 51, 52. 
 
 as to documents, 52, note. 
 
 orders of Aug. 1841, as to, 52, note. 
 
 in bill must, in order that answer to them may be enforced, be 
 
 founded on particular charges, 366, note, 
 for examination of w^itnesses, leave given at hearing to file, 392, 
 
 393. 
 defendant examined upon, after his plea oveiTuled, 354. 
 
 JEW, see Answbr.
 
 INDEX. 457 
 
 JURISDICTION OF CHANCERY, 
 ordinary and extraordinary, 1. 
 general, 6, 8, 175. 
 
 in relation to particular and inferior jurisdictions, 6, 9- 
 general objects of, 4, 5, 132. 
 where to be exercised, 132. 
 
 frame of prayer of bill where defendant out of, 43, note {(). 
 when court will proceed in the absence of parties whose rights 
 may be affected by the suit, 34. 
 See Cnoss-BiLL. 
 Demurrer. 
 Judgments. 
 ^ Plea. 
 
 JOINTURE, 
 
 without power of distress, 137. 
 
 JOINTRESS, 
 
 favor shown to, 324. 
 
 See Demurrer to Discovery. 
 JUDGMENTS 
 
 of the Common Law and Ecclesiastical Courts enforced in 
 Equity, 148, 149. 
 See Plea. 
 
 K. 
 
 KING, 
 
 suit on behalf of, 7, 22. 
 suit may not be instituted against, 33, 123. 
 where to be applied to by petition of right, 33, 123. 
 See Crown. 
 Suits. 
 KEEPER, LORD, 7. 
 
 L. 
 
 LAW, MUNICIPAL, 
 objects of, 2. 
 
 LEGATEES, 
 
 suit by or on behalf of, 194, 197. 
 decree in, 194.
 
 458 INDEX. 
 
 LEG AT EES^continued. 
 
 of deceased person, no privity with debtor to his estate, 185. 
 See Parties. 
 
 LETTER, MISSIVE, 40. 
 
 LIMITATIONS, *ee Statute. 
 
 LITIGATION, see Repeated. 
 
 LIS PENDENS, see Plea. 
 
 LORD OF PARLIAMENT, see Dependants. 
 
 LUNATICS, 
 
 by whom suit instituted on behalf of, 31. 
 defence on behalf of, to a suit, 124. 
 See Ans wer. 
 Demurrer. 
 Idiots. 
 Persons. 
 Plea. 
 
 M. 
 
 MAHOMETAN, see Answer. 
 MAINTENANCE, see Demurrer to Discovery. 
 
 MARRIAGE 
 
 of female plaintiff causes abatement of suit, 69. 
 brokage securities rescinded, 155. 
 
 MARRIED WOMAN, 
 
 where she sues jointly with her husband, 29. 
 
 separately by next friend, 25, 30. 
 her consent to the filing of a bill on her behalf, separately from 
 
 her husband, necessary, 30. 
 defence by, to a suit, 125, 126. 
 where she must, and where she need not, obtain an order to 
 
 answer separately, 125, 126. 
 where she may be compelled to put in a separate defence, 126. 
 See Demurrer. 
 Next Friend. 
 Plea.
 
 INDEX. 459 
 
 MASTER, 
 
 as to his discretion in considering exceptions with reference to 
 materiality of the interrogatories, 377, note. 
 See Exceptions. 
 Plea. 
 MATERIALITY, see Demurrer. 
 
 Master. 
 MISJOINDER 
 
 of an annuitant and of infants by such annuitant as their next 
 
 friend, 27, note, 
 of husband and wife, 30, note. 
 
 See Note on Parties, 399 — 401. 
 MISTAKE, 1.50, 151. 
 MODUS, see Answer. 
 
 MONEY, payment of into court, see Interpleadbr. 
 MORAVIAN, see Answer. 
 MORTGAGE, 153. 
 
 MULTIFARIOUSNESS, see Combinatio!*. 
 
 Demurrer. 
 
 Demurrer-to Discovbrt. 
 MULTIPLICITY OF SUITS prevented, 169. 211. 
 See Demurrer. 
 
 N. 
 
 NE EXEAT REGNO, 55, 56. 
 
 NEXT FRIEND 
 of infant, 26, 27. 
 
 how far interested in event of suit, 28. 
 of married woman, 30 
 See Costs. 
 NEW TRIAL, 
 
 bill for, 153. 
 NON-CLAIM, 
 
 See Plea of Fine.
 
 460 INDEX. 
 
 NOTICE, 320—324, 350, 354. 
 
 See Agent. 
 
 Demurrer. 
 Plea. 
 NUISANCE, 168. 
 
 O. 
 
 OATH, 9. 10. 
 
 OFFICES, PUBLIC, 
 
 securities for obtaining, rescinded, 155. 
 
 OPPRESSION, 154. 
 ORDER FOR TIME, 
 
 what amounts to compliance with, 246, note (o), 247. 
 See Time. 
 
 OUTLAWRY, 
 
 See Persons. 
 Plea. 
 
 P. 
 
 PAINS. 
 
 See Demurrer to Discovery. 
 Plea to Discovery. 
 PAPISTS, 234, 333. 
 
 See Demurrer. 
 Persons. 
 Plea. 
 PARLIAMENT, LORD OF, 
 
 See Defendant. 
 PARTIES, 
 
 general rule as to, 190. 
 I. Parties as arranged under the following General 
 Titles : — 
 
 1. O^VarUe^ generally, 186, 190, 197, 198, 200—202, 206- 
 208, 393. 
 
 2. Of Parties out of the Jurisdiction, 190, 191, 199, 399. 
 
 3. Oi Misjoinder of Parties as Co-plaintifFs, 399.
 
 INDEX. 461 
 
 PART IE ^—continued. 
 
 4. Of Parties to Suits of a Public Nature, 402. 
 
 5. Of Parties to Suits for an Account, and to Administration 
 - Suits, 192, 201, 203—206, 403. 
 
 6. Of Parties to Suits pertaining to the relation of Assignor 
 
 and Assignee, 206, 407. 
 
 7. Of Parties to Suits affectin g Persons having a Community 
 
 of Interest, 192, 194-197. 
 
 8. Of Parties to Copyright Suits, 418. 
 
 9. Of Parties to Suits pertaining to the Relation of Debtor and 
 . Creditor, 192, 197, 410, 418. 
 
 10. Of Parties to Suits in respect of Actual or Constructive 
 
 Fraud, 422. 
 
 11. Of Parties to Suits pertaining to the relation of Husband 
 
 and Wife, 423. 
 
 12. Of Parties to Suits for Legacies, 194, 412, 423. 
 
 13. Of Parties to Suits pertaining to the Relation of il/or^^a^or 
 •' and Mortgagee, 424. 
 
 14. Of Parties to Partnership Suits, 427. 
 
 15. Of Parties to Suits by or against Tenants in Common of 
 
 Real or Personal Estate, 428. 
 
 16. Of Parties to Tithe Suits, 429. 
 
 17. Of Parties to Suits pertaining to the Relation of Trustee 
 
 and Cestui que Trust, 198, 199, 201, 202, 203, 430. 
 
 18. Of Parties to Suits between Vendor and Purchaser, 434. 
 II. Parties as arranged in the Alphabetical Order of 
 
 THEIR Specific Designations of 
 administrator (limited), 204, 205, 422. 
 administrator (general), 398, 404. 
 
 ought not to be sole plaintiff to a bill for an account, 406. 
 See Personal Representative, 
 annuitants, 403, 421, 423. 
 appointees, 410. 
 assignee of a term, 407. 
 
 of a legacy, 404. 
 
 of a defendant before service of subpoena, 407. 
 
 of a bankrupt, 402, 422. 
 
 of an insolvent debtor, 420, 424. 
 assignor of a bond, 206. 
 
 of a judgment, 407. 
 
 of compensation or purchase-money, 407.
 
 462 INDEX. 
 
 PARTIES — continued. 
 
 assignor of deposits on shares, 417. 
 
 attorney or solicitor general, 32, 123, 196, 199, 402. 
 
 attorney, 422. 
 
 author, 418. 
 
 bank, ib. 
 
 book-keeper, 186. 
 
 cestuis que trust, 202, 203, 399, 4l«, 425, 426, 432, 433, 434. 
 
 church wardens, 399. 
 
 committee of an idiot or lunatic, 32. 
 
 consignees, 401). ' 
 
 co-plaintiff in ejectment, 399. 
 
 creditors, 192, 193, 197, 201, 410, 417, 418, 419, 425, 427. 
 
 crews of oyster boats, 439. 
 
 debtors, 4! 9, 420. 
 
 devisees, 407. , 
 
 distributees, 198, 403. 
 
 executor of a deceased personal representative, 400. 
 
 who has not proved, 404, see Personal Representative, 
 executory devisee, 200, 393. 
 foreign government, 403. 
 government officer, 402. 
 heir, 198, 199, -203, 420, 421, 422, 425, 435. 
 husband, 32, 423. 
 
 person assuming the character of, 436. 
 impropriator, 429. 
 
 incumbrancer, 202, 4 35, 436, see Mortgagee, 
 indorsees of a bill of exchange, 421. 
 inhabitants, 193, 410. 
 landowner, 439. 
 legal owner, 206. 
 
 legatee, (residuary,) 398, 403, 412. 
 legatees, 194, 201, 400, 403, 421, 428, 429. 
 lessor, 402. 
 
 members of a club, 410. 
 mortgagee, 400, 424, 425, 434, 435. 
 mortgagor, 424. 
 newspaper proprietors^ 411. 
 next of kin, 196, 411. 
 occupiers, 400. 
 parishioners, 195,410.
 
 INDEX. 463 
 
 F ARTIES— continued. 
 
 partners, joinder of retired, new and continuing, 400. 
 partner, 404, 407, 421, 427. 
 payee, 435. 
 
 personal representative, 204, 205, 399, 401, 404, 405, 406, 420, 
 421, 422, 423, 425, 426, 427, 430, 431, 435, aee Executors, 
 Administrators, 
 pewholders, 411. 
 purchasers, 406, 426, 434, 435. 
 remainder- man, 200, 201, 398. 
 reversioner, 200. 
 secretary at war, 402. 
 shareholders, 400, 408, 412—416, 417. 
 sheriff, 39S. 
 solicitor, 422. 
 sureties, 421, 422. 
 tenants of a manor, 197. 
 tenant in common, 428. 
 tenant for life, 426, 432, 435. 
 tenant by the curtesy, 398. 
 tenant, 202, 398, 436, 
 termor, 407. 
 
 trustees, 426, 428, 430, 431. 
 vestry clerk, 403. 
 vicar, 401, 429. 
 widow, 435. 
 wife, 423. 
 
 III. Parties having no Specific Designations. 
 
 person interested in default of appointment, 398. 
 
 person not a party to an action, 398, 401. 
 
 person having no right to relief, 401. 
 
 party to a bill for an account, 406, 407. 
 
 person having a very minute interest in an account, 406. 
 
 person who has possessed part of another's assets, ih. 
 
 persons against whom there is a joint demand, 419. 
 
 person joining in a receipt for price of property improperly 
 
 sold by a trustee, 433. 
 third party to an agreement, 436. 
 claimants under a will, 198, 403. 
 
 40
 
 464 INDEX. 
 
 PARTIES— continued. 
 
 person entitled to a prior estate of inheritance, 201. 
 person acquiring a new interest, 201. 
 persons having specific charges, 203. 
 person entitled to an escheat, 199. 
 objection for want of parties by demurrer, 190 — 208. 
 
 by plea, 325—327. 
 dispensed with by waiving a claim, 207. 
 demurrer for want of parties avoided, ib. 
 such a demurrer ought to show who are proper parties, 20S. 
 doctrine of representation 409, 414. 
 See Amendment. 
 Crown. 
 Demurrer. 
 Plea. 
 PARTITION, 141—145. 
 PARTNERSHIP, 
 
 See Answer. 
 Plea. 
 PATENT, 
 
 as to restraining infringement of, 161, 170. 
 there must be a separate bill against each invader, 210, note. 
 PEER OR PEERESS. 
 
 See Defendant. 
 PENALTIES, 
 
 See Demurrer to Discovery. 
 Plea to Discovery. 
 Waste. 
 
 PERPETUATION OF TESTIMONY, 
 bill for, form of, 62. 
 
 must be accompanied with affidavit, 63, 174. 
 See Bill. 
 
 Demurrer. 
 Plea. 
 PERSONS, 
 
 incapable of exhibiting a bill by themselves alone, are infants, 
 
 married women, idiots and lunatics, 2~\ 
 if incapable of acting for themselves, although not bearing 
 either of these characters, by whom a suit may be instituted 
 on behalf of, 32. 
 by whom a suit against such persons may be defended, 124, 125.
 
 INDEX. 465 
 
 VERSO'NS— continued. 
 
 outlawed, excommunicated, convicted of popish recusancy, nt- 
 tainted, and aliens, not incapable of exhibitinqa bill, JG, noit s. 
 PETITION, 
 
 of right may be referred to the chancellor, 33. 
 in a summary way on abuses of trusts for charitable purposes, 
 authorized by stat. 52 Geo. III. c. 101, 19, 1 M2, note. 
 
 relief upon, confined to cases of tbe abuse of cle;u 
 trusts, 20, 12-2, note, 
 in relation to charities by the 59 Geo. III. c. 91, 122, note. 
 See Rehearino. 
 
 PLAINTIFF, 
 
 how a change of interest in relation to, affects a suit, <9,ciseq. 
 suing in his own right, eifjct of his death, b mkruptcy, iVc. on 
 
 the suit, G9, et seq. 79. 
 suing in auter droit, cfffcl of his death, bankruptcy, &(.•• on the 
 
 suit, 78, 8J. 
 instance of imbecility of mind in, 269, note. 
 Sec Corporations. 
 
 TulOTS. 
 
 Infants. 
 
 King, 
 
 Lunatics. 
 
 Married Women. 
 
 Queen. 
 
 Partihs. 
 PLEA, 15, 123, 127. 
 
 when the proper mode of defence, 2<j7. 
 
 where necessary ratherthan demurrer,5fe Di3TiN:;TioN,and 258. 
 
 bill taken to be true so far as not contradicted by, 352. 
 
 nature of, 253, 341. 
 
 object of, 258. 
 
 effect (if, 15. 
 
 form of, 342, 352. 
 
 must define precisely to what part of bill it extends, 3J"2, 352. 
 
 must contain otdy one dcfjiice, 343. 
 
 must reduce so much of cause as it covers to u point, ib. 
 
 may consist of variety of circumt-tanccs, 345, 
 
 must bring t!ic matter wh'ch it covers to issue, 348.
 
 466 INDEX. 
 
 P LS A — continued. 
 
 as to this mode of defence in case of setting up two several 
 
 bars to same matter, 345. 
 distinct pleas to distinct parts, 345, note, 
 multifarious or double, 312, 318, note {z), 343, 344, 345. 
 leave in some instances given to plead double, 344. 
 instances of plea not being a complete defence, 341, note, 
 
 347—350. 
 may be good in part, and bad in part, 343. 
 overrules demurrer, 381. 
 where overruled by answer, 281, note, 381. 
 to amended bill maj be disproved by answer to the original 
 
 bill, 351, 
 
 after demurrer overruled, 255. 
 
 where to be signed by counsel, 352, note. 
 
 to be filed, 352. 
 
 in what cases to be put in upon oath, 353. 
 
 admitted to be true by filing replication, ib. 
 
 where referred at once to a master, 356. 
 
 proceedings on, 15, 341, 353. 
 
 of setting down to be argued, 353, 357. 
 
 modes of disposing of, by the court, 353. 
 
 „ ( of allowing, IG, 353. 
 
 effect < ™ 1° ,« 
 
 ( oi overi'ulmg, 17. 
 
 issue may be taken upon, an evidence produced upon facts 
 
 pleaded, 16, 354. 
 consequence of defendant succeeding or failing in the proof of 
 
 facts pleaded, 354. 
 
 I saving benefit of to the hearing, ib. 
 \ ordering to stand foj" answer, 355, 356. 
 with liberty to except, 355. 
 ordered to stand for answer with liberty to except; qualified so as 
 
 to protect defendant from part of discovery sought, 355, 371, 
 
 37:2. 
 overruled cannot be set up by a person made party by bill of 
 
 revivor, 336, note, 
 amendment of, 327, 385, note {a). 
 division of subject, 25*, 259. 
 to jurisdiction, 25*^, 259, 262, et seq. 
 to person, 2o8, 259, 265, 269, 275. 
 in bar, 258, 259, 261, 272, 275—277, 319, 325. 
 requisite allegations in, where founded on jurisdiction of an 
 
 inferior court, 263.
 
 INDEX. 467 
 
 FLEA — continued. 
 
 to information, that jurisdiction in visitor, 264. 
 of outlawry of pkinliff, 265, 356. 
 
 rules respecting, 265, 266. 
 of excommunication of plainiiff, 266. 356. 
 
 rules respecting, 266, 267. 
 of plaintiff being papist recusant convict, 267, 273. 
 
 rules respecting, ib. 
 of attainder and conviction of plaintiff, 268, 273. 
 
 rules respecting, 26-*. 
 of alienage of plaintiff, ih. 
 
 rules respecting, ib. 
 of plaintiff being an infant, a married woman, an idiot or a 
 
 lunatic, 269. 
 negative, in denial of plaintiff's title, as that lie is not heir or 
 
 administrator as alleged by him, 269, 270, 272, 273. 
 of title in the defendant without traversing tlie plaintiff's title, 
 
 27, n. 
 of plaintiff's bankruptcy or insolvency, 273. 
 of want of privity between plainiiff and defendant, 275. 
 that defendant is not the person, &c. alleged, ib. 
 negative, that defendant not interested, 276. 
 of defendant's bankruptcy, 330. 
 
 that defendant not liable to demands of plaintiff, 276. 
 of matters recorded, or as of record, 278. 
 of decree, 278—287, 35(). 
 
 when it may be in bar of a new suit, 279, et seq. 
 See Dismission. 
 of another suit depending, 278, 2S7, ct seq. 
 necessary averments in, 289. 
 
 effect of plaintiffs setting same down to be argued, ih. 
 reference to a master upon, 288, note, 269. 
 not put in upon oath, 290. 
 course of proceeding u[)on, 288, note, 290. 
 may be good, although suits not between same parties, 290. 
 may not be good where plaintiff sues in different rights, 291. 
 in a creditor's suit, ih. 
 
 at common law, or in ecclesiastical court, it seems, not 
 good, 292. 
 of a fine and non-claim, 29'<. 
 
 where the title is legal, and where equitable, 293 — 29.'>. 
 necessary averments therein, ih.
 
 468 INDEX. 
 
 P LEA — continued. 
 
 to a bill of review, 296. 
 
 of a recovery, 296. 
 
 of a judgment, 296 — 300. 
 
 upon a bill in respect of i ights determined thereby, 297. 
 upon a bill to set it aside, 298. 
 of will and probate, 300. 
 of matters in pais, 278, 301. 
 of a stated account, 301, 302, 306. 
 form of, 302, 303. 
 . of an award, 301, 303. 
 of a release, 301, 304. 
 form of, 305, 306. 
 of a legal instrument controlling or aifecting the rights of the 
 parties, 301, 307, et seq. 
 will, 307. 
 conveyance, ib. 
 articles of partnership, ib. 
 an agreement to I'efer to arbitration, ib. 
 of a statute, creating a bar to the plaintiff's demand, 301, 308* 
 et seq. 
 
 the statute of frauds, 301, 308. 
 form of, 309, et seq. 
 in case of alleged trust, 309. 
 in cases of agreements, 310. 
 the statute of limitations, 301, 312. 
 form of, 313, et seq. 
 to claim of debt, 313, 314. 
 
 to claim of money received to plaintiff's use, 314. 
 to claim of things executory, 314, 315. 
 to claim of title, 315. 
 to a bill to redeem a mortgage, ib. 
 to a bill of revivor, 316. 
 of plenarly, ib. 
 
 of public, or general, or of a local or particular statute, 318. 
 of purchase, &c. for valuable consideration without notice, 319, 
 et seq. 
 
 proper averments in such a plea, .319, et seq., 347, 348. 
 to a bill to perpetuate testimony, 324. 
 
 for discovery of deeds, ib. 
 for want of parties, 325 — 327. 
 
 particular cases in which this plea may be avoided, 326.
 
 INDEX. 469 
 
 PLEA — continued. 
 
 containing negative averments supported by answer, as in in- 
 stance of plea containing averments ill denial of equitable 
 circumstances charged and accompanied by answer in aup- 
 port thereof, 281, et seq. 303, note, 322, note, 340. 
 effect of such a plea so framed and so supported, 256. 
 effect of a plea 
 
 of judgment so framed and so supported, '-^^9. 
 of stated account so framed and so supported, :-?02, 303. 
 of an award so framed and sg supported, 303. 
 of a release so framed and so supported, 3t)4. 
 of statute of frauds so framed and so supported, 311, :J12. 
 of statute of limitations so framed and so supported, 314. 
 to discovery, 327, et seq. 
 
 where plaintiff states a false case, 329. 
 where plaintiff not interested, ib. 
 where defendant not interested, 330. 
 ■where discovery sought improper, ih. 
 
 that it might subject defendant to pains, penalties or for- 
 feitures, 331. et seq. 
 effect of waiver, ci34. 
 that it would betray confidence reposed in defendant, as 
 
 counsel, attorney or arbitrator, 331, 335. 
 that defendant a purchaser for a valuable consideration 
 
 without notice, ib. 
 of statute of limitations, 32S, note, 
 in aid of a plea to an action for libel, ib. 
 of the discontinuance of an action, z'i. 
 as to such a defence to the relief extending to the discovery, 
 
 313,314. 
 to a bill for writ of certiorari, 336. 
 to a bill of revivor, 236, 237. 
 to a bill of supplement, 237. 
 to a cross-bill, 338. 
 to a bill of review, ib, 
 
 on ground of matter extrinsic to the decree, as lapse of 
 time, 242. 
 to a supplemental bill in nature of a bill of review, 340, 
 to a bill impeaching a decree, 281, .340. 
 to a bill to carry a decree into execution, 341. 
 to an amended bill, that the new matter was subsequent, 337'
 
 470 INDEX. 
 
 PLEA — continued. 
 
 See Amendment. 
 Answer. 
 Averments. 
 Demurrer. 
 Distinction. 
 Interrogatories. 
 Time. 
 PLEADING, 
 
 former practice as to course of, 19, 382. 
 PLEADINGS, 
 
 order in which treated of, 21. 
 PLENARTY, see Plea. 
 PRAYER, 
 
 for particular and for general relief, 39 — 43, 54. 
 for special order or provisional writ, 55, 56. 
 See Bill. 
 
 Jurisdiction. 
 PREROGATIVE, see Suit. 
 PRESERVATION 
 
 of property pendente lite by this court, 158. 
 PRIVITY, 
 
 See Agent. 
 Creditors. 
 Demurrer. 
 Legatees. 
 Parties. 
 Plea. 
 PROBATE 
 
 of will obtained by fraud, 300. 
 of will in a foreign court, 301. 
 See Plea. 
 PUBLIC POLICY, 155, 319, et seq. 
 PURCHASER, see Demurrer. 
 Parties. 
 Plea. 
 
 Q. 
 
 QUAKER, see Answer.
 
 INDEX. 471 
 
 QUEEN, see King. 
 
 QUEEN CONSORT, 24, 120, 123. 
 
 a bill may not be exhibited against her, 32. 
 
 where to be applied to by petition, 33. 
 QUIA TIMET BILL, 171, 
 
 R. 
 RECORD, 
 
 where right appears by, not necessary to establish same at 
 law, 171. 
 RECOVERY, *ee Plea. 
 REFERENCE TO MASTER, see Master. 
 
 Plea. 
 Suits. 
 REGISTER ACT (Ship), 
 
 observance offormality required by, neglected, 138. 
 REHEARING, 
 
 petition of, 109, 111. 
 See Decree. 
 REJOINDER, 384. 
 
 special, disused, ib. 
 
 leave given to withdraw and to rejoin denovo, 394, note (m). 
 
 subpoena to rejoin, abolished, 384, note. 
 
 RELATOR. 
 
 as to nomination of, and as to liability when named, 23, 24, 31, 
 
 180, 121. 
 death of, how suit affected by, 120. 
 See Costs. 
 
 RELIEF, 8, 9, 13. 
 
 defence in respect of, though not of discovery, 12?, 132. 
 where legal and founded upon discovery of deeds sought by 
 bill, affidavit to be annexed thereto, 66, 146, 147. 
 <Sec Demurrer. 
 Plea. 
 
 RELEASE, see Plea. 
 
 pleaded, must be upon good consideration. 305. 
 pleaded, as to execution of, 30G, 307.
 
 472 INDEX. 
 
 REMAINDER, 
 
 tenant in remainder may appeal from a decree against one 
 having a prior estate of inheritance, 200. 
 See Decree. 
 REMEDIES 
 
 afforded in equity with reference to such as are attainable in 
 courts of law, 134, et seq. 
 REPEATED LITIGATION 
 
 restrained, 167. 
 REPLICATION, 382. 
 
 special, now almost disused, 19, 383. 
 
 liberty given to withdraw, and to amend bill, 383, note (h), 394, 
 
 note (y). 
 where allowed to be filed nunc pro tunc, 384, 392, 393, 394. 
 See Disclaimer. • 
 
 Plea. 
 
 REPRESENTATIVE, PERSONAL, see Parties. 
 
 Plea Negative. 
 REVIEW, BILL OF, 
 
 under what circumstances such a bill can and cannot be sus- 
 tained, 101—106. 
 where such a bill may and may not be filed without leave of 
 
 the court, 102. 
 where such leave will and will not be granted, 103. 
 rules in relation to, as to proceedings and as to time, 105, 106. 
 frame of, 106. 
 
 affidavit necessary upon application for leave to file, 102. 
 See Bill. 
 Decree. 
 Plea. 
 
 Supplemental Bill. 
 REVIEW, BILL IN NATURE OF BILL OF, 
 
 where the proper course of proceeding is by, 108 — 112. 
 may be filed without leave of the court, 1 12. 
 frame of, ih. 
 See Bill. 
 REVIVOR, BILL OF, 83, 84. 
 parties to, 92.
 
 INDEX. 478 
 
 REVIVOR, BILL OF— continued. 
 frame and contents of, 91, 92, 93. 
 course of proceeding upon, 92, 93. 
 practice in relation to, 93. 
 instances in which not necessary, 70, et seq. 
 instances in which court has acted without, 94, note (w»). 
 where plaintiff has no title to revive, 336. i 
 
 barred by statute of limitations, 337. 
 See Answer. 
 Bill. 
 
 Demurrer. 
 Plea. 
 REVIVOR AND 3UPPLEMENT, BILL OF, 85, 97. 
 REVIVOR BILL IN NATURE OF BILL OF. 
 
 where rhe course of proceedit)g ia by, S3, note, 86, 117. 
 frame of, 117. 
 See Bill. 
 Costs. 
 Decree. 
 RIGHT, see Custom. 
 
 Record. 
 
 S. 
 
 SCANDAL, 58, note. 
 
 in bill, 58. 
 
 in answer, 372. 
 
 nothing relevant considered as, 373. 
 
 costs in strictness to be paid by counsel, 58, 379. 
 SCIRE FACIAS, 
 
 subpoena in nature of, 84. 
 SENTENCE, 
 
 See Judgment. 
 
 SETOFF. 
 
 frame of prayer for a sot-off, 40. 
 SETTLEMENTS, 323, 324. 
 
 SIMONY, 
 
 See Demurrer to Discovery. 
 SOLICITOR-GENERAL, 23, 120, 123. 
 
 See Parties.
 
 474 INDEX. 
 
 SPECIFIC PERFORMANCE, 
 
 See Agreement. 
 STATING PART, 
 
 See Bill. 
 STATUTE, 
 
 See Plea. 
 STATUTE OF FRAUDS, 
 
 as to effect of insisting on, by plea or by answer, 312. 
 See Agreement. 
 
 Discovery. ' 
 
 Trust. 
 STATUTE OF LIMITATIONS, 
 
 where it applies, and where the court is influenced by analogy 
 
 to it, 312, 316, 317, 318. 
 as to its application to a suit in equity, or to a decree, 317. 
 allegation to show that the statute of limitations had not run 
 
 against an equity of redemption, 45, note, 
 may be the ground of a demurrer, 251, note. 
 See Acknowledgment. 
 Demurrer. 
 Discovery. 
 Plea. 
 Revivor. 
 SUBPOENA, 39. 
 to rejoin, 384. 
 SUITS, 
 
 instituted on behalf of the Crown, of those wiio partake of its 
 prerogative and of those whose rights are under its particu- 
 lar protection, 7. 
 
 by whom severally instituted, 22. 
 one on behalf of infant referred to a master to ascertain whe- 
 ther for infant's benefit, 29. 
 two on behalf of infant, referred to inquire which most for 
 
 infant's benefit, ib. 
 new, how they become necessary, 18. 
 Sec Statute of Limitations. 
 
 SUPPLEMENT, BILL OF, 
 
 cases in which filed, 73 — 82, 100, note, 199, note.
 
 INDEX. 475 
 
 SUPPLEMENT, BILL OF— continued. 
 objects of, 74, et seq., 242, note, 
 parties to, 9! . 
 
 frame and contents of, 90, 91. 
 course of proceeding upon, 90. 
 
 instance in which court proceeded without, 89, note (c). 
 after decree, 79. 
 See Bill. 
 Plea. 
 SUPPLEMENT, BILL IN NATURE OF BILL OF, 
 where course of proceeding is by, 118, 119. 
 frame and contents of, ib. 
 See Bill. 
 
 SUPPLEMENTAL BILL, IN NATURE OF BILL OF RE- 
 VIEW, 
 where course of proceeding is by, lOS — 112. 
 affidavit necessary upon application for leave to file, 110. 
 frame of, 110—112. 
 See Bill. 
 
 Demurrer. 
 Plea. 
 SURRENDER of copyhold defective, 138. 
 
 TENANT, see Copyhold. 
 
 Interpleader. 
 Parties. 
 TENANT IN TAIL, see Decree. 
 Parties. 
 TERMS, OUTSTANDING, 
 
 bill to restrain the setting up of, 157. 
 TESTIMONY, sec Bill. 
 
 Perpetuation. 
 TIME, 
 
 lapse of, as to demurrer founded on, see Bill op Review, 2.51. 
 to plead, answer or demur, rules in relation to, 246, 247. 
 lapse of, to answer, after plea or demurrer overruled, 378. 
 See Discovery. 
 
 Statute ok Limitations.
 
 476 INDEX. 
 
 TITHES, 148. 
 
 See other Titles. 
 TITLE OF PLAINTIFF, 
 
 instances in which to be established at law before equity will 
 
 interfere, G6. 
 as to this court's consideration of the legal or equitable, 235, 
 236. 
 
 See Answer. 
 Demurrer. 
 Plea. 
 Record. 
 TRADINGr, ACTS OP, see DaMURRER to Djscovery. 
 TRESPASS, 160. 
 
 See Crown. 
 TRIAL, see Bill. 
 New. 
 TRUST, 
 
 as to necessity and effect of confessing in an answer with re- 
 ference to the setting up of the statute of frauds. 310, 311. 
 TRUST-FUND, see Parties. 
 TRUSTEES, see Answer. 
 Parties. 
 TRUSTS, 1.56. 
 
 U. 
 
 USURY, see Demurrer to Discovery. 
 
 V. 
 
 VERDICT, 
 
 where bill to set aside, not sustainable, 154, note. 
 See Judgment. 
 
 W. 
 
 WAIVER, 
 
 of forfeiture, 334. 
 
 of penalty, 231. 
 WASTE, 
 
 legal, 136, 159—164.
 
 INDEX. 477 
 
 WASTE — continued. 
 
 equitable, 136, note, 163, 194. 
 
 pendente lite, 158 — 161. 
 
 penalty and forfeiture in case of, 162. 
 
 ought to be waived in bill seeking to restrain, 162. 
 WILL, 
 
 obtained by fraud, 300. 
 See Plea. 
 
 WILLS, 
 
 courts of equity will not decide upon their validity, 146, note. 
 WITNESS, 
 
 made defendant, discovery by, not compelled, 330. 
 -See Demurrer. 
 Examination^ 
 Plea. 
 
 WRITINGS, 
 
 See Deeds. 
 Delivery.
 
 \ 
 
 -t 
 
 \f
 
 2 3 V H^*^"""* so 
 
 >» V f f S > 
 
 ^(?Aflviai># "^(^AflVHarnv^ 
 
 ^5MEUNIVn?% 
 
 •^ 
 
 <f^3NVS(n=<" 
 
 
 i^ 
 
 AWEUNlVERy/A 
 9 
 
 
 YDJO'^ '^^OJITVDJO^ %HONVS(n=^ '^/Sa3AINft-3Vt^' 
 
 •53 i ir^ ^ i? 
 
 \mm'i^ %o 
 
 lIFOff^^ ^OFCAllFORi^ 
 
 
 
 < 
 
 ^lOSANCFUr^ 
 
 ^OFCAllFO^'.ij^ 
 
 <<^3NVS01=<^ "^AlUAINfl-aHV 
 
 
 <kOF- 
 
 
 O 
 
 -^tllBHAKtC/r 
 
 -•^fllBKAKfCjr 
 
 .\WUNIVtKVA 
 
 4^'" 
 
 %a3MNn-3V<^ %0JnV3JO=^ ^OJIIVJJO'^ <ril33NYS01^ 
 
 IVER% 
 
 ^lOSANCflfx^ 
 
 o 
 
 .^,0FCAIIF0% .M^OFCAllFOffx^ 
 
 .\MfUNIVn?5-/A 
 
 ^10 
 
 vsoi^ "^iHAiNfl-atti^ "^(^AHVHan-i^ "^(^Aman^ ^f^owsoi^ 
 
 
 (AKVt^ 
 IIFO^,^ 
 
 4^^lilBKAK1•C/•^ 
 
 AWfUNlVtW/^ 
 
 ^.OFCAllFOfiJ^ 
 
 5 
 
 Han# 
 
 >'<?AJivJian# 
 
 
 ^JOAINIliV^^ 
 
 ^lOSANCFlfj"^ 
 
 3 ^'•'^S—krr' 
 
 -^J^yDNVsm^ 
 
 
 ^5^t•UBKAHt•c'/. ^J^tl 
 
 - - - ^ ^ i3 - 
 
 ^.OFCAIIFOI?^ ^OF- 
 
 Vt^'V/;^ ^lU^ANlitlfJ^ 
 
 ;S -=J V >L ■ '■'■I* S 
 
 <AtUBRARTO/^ 
 
 A^tUBHAKTLJr 
 
 ^aOJIWDJO"^ %)jnVDJO^ 
 
 ..VOtONIVtKJ//, 
 
 
 ■^Aa; 
 
 ^ 
 
 IVER% ^lOSANCnfJv. 
 
 53 CP. 
 
 ^ 
 
 ^OFCAUFOff^ ^OFCAllFOff^ 
 
 I' 
 
 2 •*-.-.(
 
 FCAllFO/iV^ ^OFCAIIFO^^ 
 
 
 
 EUNIVERT/^ A^lOS-ANCflCf^ 
 
 i i 
 
 
 
 UC SOUTHFRN RrCIONAl UBRARY FACtllTY 
 
 ^J^irwvsoi^ 
 
 
 vV 
 
 AA 000 918 719 6 
 
 -n 
 
 fV^t-UBRARY-6t', 
 
 ^OFCAllFOft^ 
 
 
 ^OfCAlIFW^ 
 
 55 ,<^ 11-5 
 
 %)jnV3J0'^ <m30KYS0\^ 
 
 ^^FUNfVF1f&'4 
 
 <>5iDi<vsm'<^ 
 
 ^^ 
 
 s 
 
 5 1 1^-^ ^ 
 
 ^tfOJITVOJO^ 
 
 ^OFCAIIFO/?^^^ 
 
 >&AMva8n-j^ 
 
 <»5UDNVS0# 
 
 xiz 
 
 '<^3 
 
 .5JflFUNIVEFJ/A 
 
 
 I 
 
 
 ^awnvDjo^ 
 
 
 ^t^AHVWn-l^^ 
 
 g 
 
 
 f 
 
 
 _vjclOSANCFUr> 
 
 o 
 
 
 ^ttlBKAKIt^ 
 
 ^ "^aaAiNnav^^ ^^ojnvDjo'*^ 
 
 ^.OFCAllFC%, 
 >&AHVl!afH^ 
 
 ^OFCAUFW^ 
 
 >t7AJHVHan-i^ 
 
 
 %i}wv«n^ 
 
 s 
 
 ^vv- ito«^^n ' If/ 
 
 ^OFCAllFORi^^ 
 
 
 'MFUNIVFR% 
 
 "^/saaAiNnii^ 
 
 4^' 
 
 5 
 
 f^FCAllFW^