^ IS CI %oi\mi^'^ ^OFCAUFOff^ ^OFCAIIFOP^ '^''^Aaviifln^^ "^/^AHvaaiH^^ v^ 4^lUBRARYa^. 45jJ-UBRARY^x- .5MEUNIVEBS/A ^^OJIWDJO'^ v^lOSANCafj-;> ^OFCAUFOff^ ^OFCAUFOMi^^ # .5jlfONIVtl!f/A. •^frW-ViVW^ ^lOSANCEl^^ o > ■•^ '\UFO«^ ^OFCAllFOff^ j*>iu\/Hq>%-vN^ .vi^p.fJMn'Tr-r/ '3 1. V s.«W ■ ^IjOSAHCrifj-;* '-* ur.imiv/cpjy^ ^UKANCE^r^ '^<«ojnv3jo'^ ^OFCAllFOff^ T O A ^ G 41! ^UOKVSOl'^ % JFOP^ ^OFCAUFORjl^ >- ea =3 ^lOSANCEl^^ S 1 ir"^ 3 o "^/iaaMNiuw^ ^I-UBRARYOc. ^l-UBRARYQc, ,1MIIBRARY(?/ R UFO/?^ ^.OFCAllFOft^ ^WEUNIVERS/A ^lOSANCElEf^ o ^ •^i^UDNVSOl'^ «5i\ElNIVER% iaii# ^(JAMvaani'^ ^lOSANCEl^T;^ o 09 AND persevered in under his encouragement is affectionately inscribed by The Authors. CONTENTS. INTRODUCTIOX. Equity Pleading — Jurisdictional rules 1 C IT AFTER I. Jurisdiction of Equity Courts— Miscellaneous rules 4 CHAPTER II. The Bill, its form and requisites 55 CHAPTER III. Of the Parties 77 CHAPTER IV. Process — Issuance — Service lOG CHAPTER y. Default and Decree pro confesso 133 CIIAPTEIi VI. Appearance and proceedings on behalf of defendant 140 CHAPTER VII. Further proceedings on part of complainant 176 CHAPTER VIII. Hearing on bill and answer— Taking testimony on issue joined— Reference to Master and proceedings thereon — Witnesses -nn CHAPTER IX. Amendments— Supplemental and Rcviviil liills 273 CHAPTER X. Preparation for liearing — Submission of cause— Decree 2sy ( vii ) YlU CONTENTS. PAGE CHAPTER XL Prelim inary in j unctions and restrain] ng orders 297 CHAPTER XII. Cross Bills 334 CHAPTER XIII. Eehearings and Bills of Review 347 CHAPTER XIV. Appeals 361 CHAPTER XV. Enforcement of Process and Decree— Auxiliary Proceedings — Gen- eral Rules 370 Appendix— Ordinances of Lord Bacon 377 Index of Equity Rules 399 TABLE OF CASES. PAGE. Allis V. Sto\vell L'dO Atwill I'. Feirett Kll Bailey r. AV right IC!) Boxulereau v. Montgouieiy lil I Brandon Mfg. Co. v. Prime IGl Bronson v. Railroad oo4 Brooks t". Byani iso Brown i\ Pacific Mail S. S. Co '. .'IIG Caster u. Wood ilSl Chappedelaine v. Dechenaux 249 Clements »;. Moore .">' 2 Cole 8. M. Co. V. Virginia G. II. W. Co 3ii.5 Des Moines & M. Ey. v. Alley WJ Dexter v. Arnold {2 Snnmer, 108, 132) 229 Dexter t'. Arnold, (-5 Mason, 303, 329) 317 Elmendorf v. Taylor i)(5 Eslava v. Mazange 217 Ewing 1-. Blight : 297 Finley i-. Bank, U. S (58 Fitch V. Creigliton 42 Fitzpatrick et aL v. Domingo 2S1 Forgay v. Conrad 290 Gaines v. Xew Orleans 2-JG Gass r. Stinson 212 Grant Powder Co. v. Cal. Yig. P. Co 283 Gracie v. Palmer 124 Gray v. Larrimore 98 Graham, ex parte ; 118 Harrison v. Nixon o9 Hayes r. Dayton I'lG Ingle v. Jones ]()4 Jackson v. Ashton (8 Pet. 148) 72 Jackson v. Ashton (10 Pet. 48(i) 280 J<'nes V. Andrews G3 Kelsey r. Hobby 220 Langdon v. Goddard 14(1 ( ix ) X TABLE OF CASES. PAGE Lewis I'. Sluiinwald 16 Livingston v. Stoiy 148 Longworth v. Taylor 278 Lowenstiiie v. Glidewell 130 McCauley v. Kellogg 298 McMicken V. Periii 255 MmisIi v. Bennett 804 Marye v. Strouse 134 Melius V. Thompson 192 Morgan v. Morgan 94 Myers v. Dorr 185 Nat. Bank c. Ins. Co 191 O'Hara u. MacConnell 134 Parkhurst v. Kinsman 275 Parsons i-. Howard 125 Payne v. Hook 50 Peay v. Sclienk 344 Phoenix Mut. Ins. Co. v. Wulf 121 Pierce & McDonald.^. West's Ex 279 Poor V. Carlton 307 Poultney v. City of Lafayette 361 Railroad Co. v. Swasey 294 lloemer v. Simon 360 Scott w. Ilore 357 Story V. Livingston 233 Tobin I'. Walkinshaw 78 Toland v. Spiague 107 United States u. Gillespie 46 United States v. Parrott 28 Van Reinisdyk v. Kane 171 Vose V. Bronson 70 Ward V. Arredondo 365 Wilson V. Graham 72 Wood V. Mann 257 EQUITY PLEADING. The pleadings in equity are the written statements of tlie parties, setting out in conformity with certain established rules, the matters and facts relied upon by the respective parties to the suit, in order to maintain or defeat it, or to obtain or prevent the equitable interposition of the Court con- cerning the relief sought (Story). A suit in Equity is instituted by a bill, sometimes called a petition ; this is a statement of the grounds on which the complainant bases his right to equitable relief.* Bills are divided into : I. Bills Original, including all those in which the .same persons, having the same interests are first before the Court for determination of rights. Bills Original are : (a) Those praying relief, i. c, seeking for the adjudica- tion upon the merits of the identical suit before the Court to ascertain present existing rights and remedy present wa'ongs. Technically bills for re- lief must ask for a decree of Court. Bills praying relief may be 1. For specific performance, /. e., for the execution of a contract. 2. For Partition, i. c, for the severance of joint estates. 3. Bill of Peace, ?'. c, for tlie perpetuation of the gen- eral exclusive right in the complainant against numerous parties who dispute it or where the- right is claimed by numerous complainants against the defendant. (1) EQUITY PLEADING. 4. Bill Quia Timet, i. e., for relief against appre- hended inconvenience, danger or injury. 5. Bill for Foreclosure, i. e., to compel the sale of mortgaged premises and bar the right of re- demption. 6. Bill to Redeem, ?*. e., to compel the mortgagee to accept payment and reconvey. 7. Bill for Injunction, i. e., to restrain the defend- ant from committing an irreparable injury or to compel the performance of some act. (Each of the above bills prays a decree of the Court touching some right claimed by the complainant in opposition to the defendant. ) 8. Bill of Interpleader, i. e., to determine in whom is the right of possession of personal property. 9. Certiorari Bill, /. e., to remove a cause from a lower to a higher Court. (Seldom used.) (b) Those not praying relief, i. e., to prevent future apprehended injury or affecting suits in the courts of law. (The distinctions between these and bills praying relief is not a mere matter of form, but goes to the life of the bill.) Bills not praying re- lief are : 1. Bill to Perpetuate Testimony, i. e., to preserve evidence which is in danger of being lost be- fore the question now before the Court can be determined. 2. Bill De Bene Esse, i. c, to preserve evidence which is in danger of being lost before the controversy is made the subject of an action. 3. Bill for Discovery, i. e., to compel disclosure of facts of which the defendant has knowledge, information or belief or documents in the pos- session or control of the defendant. II. Bill not Original, including those in addition to or a continuance of, an original bill, or both, and relate to EQUITY I'LEADING. 3 some matter already in controversy between the same parties or their privies. Bills^not Original are : 1. Supplemental l)ill, i. c, for matter arising sub- sequently to the commencement of the suit ; the matter may give a new interest to a person not a party to the bill, or occasion a change of the interest, or the matter may entitle the com- plainant to more extensive relief than prayed for. 2. Bill of Revivor, ?'. c, in continuance of an orig- inal bill, when the suit would otherwise abate by reason of the death of one of the parties or by the marriage of a female complainant. 3. Bill of Revivor and Supplement, ?'. e., to revive the original suit and also to supply defects or set up new facts which have arisen subsequent to the filing of the original bill. III. Other Bills, those which are technically in the nature of original bills not praying relief and which cannot be classified as original bills and bills not original. Other Bills are : 1. Cross Bill, i. e., to secure to the defendant cross relief from the plaintiff or other parties to the suit. 2. Bill of Review, i. e., to correct errors apparent on the face of the decree ; also where new mat- ter has come to the knowledge of one of the parties after publication passed ; this by leave of Court and only by parties to the record or their privies. 3. Bill in the Nature of Bills of Review, i. e., to correct errors apparent on the face of the decree after it has been signed and enrolled ; this bill is brought by a person not bound by the decree. 4. Bill to Impeach a Decree on the Ground of EQUITY PLEADING. Fraud, /. c, to set aside a decree of the Court wliich has been rendered under a fraud or imposition. 5. Bill to Avoid or Suspend the Execution of a Decree, i. e., to stay the execution of a decree either ternporaril}^ or permanently. (*). Bill to Carry a Decree into Execution, i. e., to revive a dormant decree or add new parties after decree signed and enrolled, where the new parties have interests similar to the liti- gants, or are in privity with them. 7. Bill in the Nature of a Bill of Revivor, i. e., in continuance of an original bill where the suit has abated by the death of a party or for any other reason, and where the change of interest has taken place by the act of the parties. 8. Bill in the Nature of a Supplemental Bill, i. e., where the interest of a party wholly determines and the propert}^ becomes vested in another not claiming through him. The Parts of a bill are : 1. The Address, containing the title and style of the Court. 2. The Introductory part, containing the names, places of abode, and citizenship of the parties, and the right in which they sue and are sued. (In present practice the address and introductory parts are considered as one. ) 3. The Premises, or stating 2:)art, containing the complain- ant's case. 4. The Confederating Part, containing a statement of con- spiracy between the parties defendant and others un- known. (This clause is not generally used.) 5. The Charging Part, containing the pretenses which the complainant supposes the defendant will set up for ex- IXil ITY IM.KAniNC. cuse or jiistiiicalion and then cliai'«;int; otliei" matter to avoid them. (Unnecessary at the present time.) 6. The Jurisdictional Clause, containing an allegation that the acts complained of are contrary to Ivjuity. (Un- necessary at the present time, but the bill as an entirety must show sufficient equity to give the Court jurisdic- tion.) 7. The Interrogating Part, containing the particular facts concerning which the complainant requires an answer. (The requirements of the particular case must determine whether or not interrogatories shall be propounded.) 8. The Prayer for Relief, which may be special (praying for the particular relief to whicli the complainant thinks he is entitled), or general (praying for such other and further relief as the Court may think equitable). 9. The Prayer for Process, containing a request for the issuance of the writ of subpoena. 10. Signature of Solicitor as an evidence that the bill is a proper one. (And in Federal Courts the bill must be verified by oath or affirmation of complainant.) NATURE AND MODES OF DEFENSK. Defense is cither: 1, Peremptory, or J, Dilatory. The Modes of Defense are : 1. Disclaimer, wherein the defendant denies that lie has any right, title, or interest in the subject matter of the suit, or knowledge, information or belief concerning the same. 2. Demurrer, which is either general (going to the whole bill and assigning no particular cause) or sj)ecial (desig- nating the parts of the bill intended to be attacked). A demurrer lies for error apparent on the face of the bill and must be in writing, but causes other than those specified may be argued ore tenvs. A demurrer contends that the ca.se as shown in the bill, (admitting it for the EQUITY PLEADING. sake of argument to be correct) is not such as to demand an answer either because, as stated, it does not contain some essential element necessary to the right, or because the right is avoided by some fact contained in the bill itself, or because the bill is multifarious, scandalous or impertinent. (Scandal is any matter which it is not becoming the dignity of the Court to hear or which reflects on a party. Impertinence consists of needless prolixity, as setting forth deeds in haec verba. Afultifariousness is the allegation of matters entirely distinct and unconnected, or the introduc- tion of parties having no interest in tlie subject matter or decree.) 3. Plea, which is either (a) affirmative, in the nature of a special answer setting up and relying on one or more facts not alleged in the bill as a cause wliy the suit should be delayed, dismissed or barred ; (h) negative, denying one or more facts set up in the bill as a cause why the suit should be delayed, dismissed or barred ; and (c) anomalous, reasserting and relying upon some fact stated in the bill and which is therein impeached and denies the facts and charges relied on as a ground for impeachment. (A plea must be suppoi-ted by an answer when, (a) the complainant admits the existence of a legal bar, and alleges some equitable circumstances to avoid its effects and interrogates as to these circumstances and (b) when the complainant does not admit the existence of a legal bar and states some equitable circumstances which may be true, and to Avhich there may be a valid plea, together with other circumstances inconsistent with the substantial validity of the plea, and interrogates as to the latter cir- cumstances. ) 4. Answer, which is the response of the defendant to the interrogatories contained in the bill. Generally speak- ing, however, an answer is the pleading in which the defendant takes up the allegations of the bill, paragraph by paragraph, and replies thereto, either by way of plea, demurrer or disclaimer. X Exceptions to Answer is the method whereby a complain- JURISDICTIONAL KULKS. / ant objects to the sufficienc}' of the defendant's answer, eitlier in matters of form or substance. A decree is the sentence or judgment of the Court pro- nounced after the liearing or submission of the cause. De- crees are (a) interlocutory, pronounced for the purpose of ascertaining matters preparatory to final decree ; and (h) final, pronounced for the purpose of fully deciding and dis})osing of the whole merits of the cause and reserving no ciucstions or directions for the future judgment of the Court. A motion is an interlocutory application by or on behalf of a party to the suit. A }ietition may be preferred by one a party to the suit or not. These proceedings relate to the amendment of pleadings, appointment of receiver and other matters which may arise after the filing of the original bill, and independent thereof. • JURISDICTIONAL RULES. , I. EQUITY HAS NO JURISDICTION WHERE THE REMEDY AT LAW HAS ALWAYS BEEN PLAIN, ADEQUATE AND COMPLETE. (1) The foregoing rule lies at the foundation of the system of equity jurisprudence. Equity does not create rights which the common law denies. It had its origin as we have seen in the necessity for specific, and more effectual, remedies for wrongs and injuries where the law either gave no substantial redress, or, by reason of the special circumstances of the case, the redress given was inadequate and practically un- availing. (2) It is not enough that there is a remedy at law; in order to exclude equity, it must be " as practical and efficient to the ends of justice and its prompt administration as the remedy in equity." Boyce v. Grundy, 3 Pet, 210, 215 ; Tyler r. Savage, 143 U. S., 79, 95; Kilboum v. Sunderland, 130 U. S., 505, 514; Rich r. Braxton, 158 U. S., 375, 400. 8 K; Wliitclivad /■. Sliatliirk. l.'SS f. S., 14(); Gormley r. (lark, 134 V. S., 838; Lanjjdon r. SliLiwuiul. 124 I". S.. 74; Holland (>. Challen, 110 U. S., 15; \\Vhnn;in r. Conklin, Lm V. S..:!14; Buzard r. Houston. 119 V. S., :]47; I-ewis i: Cocks. 23 Wall.. 4(;(i; Tlionip- son V. R. K. Co., 6 Wall., 134; Hipp /•. Babin, 19 How., L>7!: Ho.vw r. Grundy, 3 Pet., 210; Russell ?■. Clark, 7 Crandi, (il», SO; Osborne r. M. l>. Ey. Co., 147 U. S., 24», 258; X. Y. (luaranly Co. r. Mt-nipliis Water ( c . 107 r. S., 205, 214. (b) Ordinarily, the want of jurisdiction in equity, when not apparent on the face of the bill, must be brought to the atten- tion of the court by plea or answer. (Wylie v. Cox, 15 How., 415, 420.) But the court may, of its own motion, dismiss a bill for want of jurisdiction when, from the allegations, or the proofs, it is plain that there is no proper case in equity. Lewis V. Cocks, 23 Wall., 46(5; Oelrichs v. Spain, 15 Wall.. 21 1 . 228; .MU-n V. Pullman Palace Car Co., 139 U. S., 658, 662. Where, however, the subject matter is one within the gen- eral scope of the jurisdiction in equity, the objection that there is a plain, adequate and complete remedy at law, in the par- ticular case, must be made in limine. Reynes v. Duniont, 130 U. vS., 354, 895; Hollins v. lUiarfield Coal A Iron Co., 150 U. S., 371, 380; Merwin Eq., H 104-109. A decree, therefore, in such cases, or in one where, the question being made, the court has erroneously determined that it had jurisdiction, is binding and cannot be impeached collaterally. Mellen r. Moline Iron Works, 131 U. S., 352, 367. II. EQUITABLE JUEISDKJTION IS, IN GENERAL, NOT OUSTED BY A SUBSEQUENT EXPANSION OF THE LE(;AL REMEDY. (1) Bispham says, upon excellent authority : " If a court of ec[uity has originally assumed jurisdiction over a particular class of cases, it will not, as a general rule, be ousted from that jurisdiction simply because, in the progress of common 10 EQUITY PLEADING. law improvement, redress comes to be subsequently attainable at law." Pr. of Equity, 5 ed. , p. 62; 1 Story Eq. Jur., Sec. 64, i; 1 Pomeroy Eq. Jur. , Sees. 182, 276, 277; Svreeny r. Williams, 36 N. J. Eq. , 627; Simmons Creek Coal Co. v. Doran, 142 U. S., 417, 449. (2) Nor will the jurisdiction be considered as ousted by a statute giving a remedy at law. The statutory remedy will be regarded as cumulative unless the contrary intention be expressed or shown by necessary implication. Darst V. Phillips, 41 Ohio St., 514; Phillips v. Kelly, 12 Or., 213; Sweeny V. Williams, 36 N, J. Eq., 627; Lee ij. Lee, 54 Ala., 590; 1 Story Eq. Jur., Sec. 80; 1 Pom. Eq. Jur., Sec 182. (3) An important exception to the general rule, is, that a court of equity will not now entertain a bill by the assignee of a strictly legal right merely because he cannot bring an action at law in his own name; for the reason that he has a plain and adequate remedy at law by an action in the name of his assignor, to his own use. Walker v. Brooks, 125 Mass., 241; Hay ward r. Andrews, 106 U. S., 672^ 677; N. Y. Guaranty Co. v. Memphis Water Co., 107 U. S., 205, 214; Glenn r. Marbury, 145 U. S., 499, 508; Notes to Ryall v. Rowles, 2 L. C. Eq., 4 ed., pp. 1567 and 1670. __ III. EQUITY JURISDICTION, HAVING ONCE ATTACHED TO A CASE, WILL BE MAINTAINED FOR THE PURPOSE OF COMPLETE RELIEF THROUGH THE FINAL ADJUDICATION OF ALL RIGHTS IN- VOLVED. (1) The prime object of this rule is the prevention of a multiplicity of suits, which is a favorite doctrine of equity. It means that when its jurisdiction has been invoked, in good faith, for a purpose clearly within its powers, a court of equity will proceed to administer complete and effectual relief though in so doing it may become necessary to determine some questions, ordinarily cognizable alone at law. For example : equity has no jurisdiction to award compensation JURISDICTIONAL RULES. 11 in damages when tluit is the remedy sought; but if tlie bill seeks other rehef, that can only be given in eciuity, and damages are incidental thereto it will proceed to award them. Merchants Ins. Co. v. Tayloe, 9 How., 390; Pha>ni.x Ins. Co. v. Kyltnul, 09 Md., 437; Lynch v. Metropolitan EI. Ry. Co., 129 N. Y., 274; McGean v. Met. El. Ry. Co., 133 N. Y., 9; Pom. Eq. Jur., 8ecs. 181, 231, 242; Tyler V. Savage, 143 U. S., 79, 97; Gormley v. Clark, 134 U. S., 338, 349; Milk- man V. Ordway. 106 Mass., 232; Combs v. Scott, 70 Wis., 002, 071; Virginia A. M. & M. Co. v. Hale, 93 Ala., 542; 3 Pom. Eq., Sec. 1410. (2) The doctrine has been extended to the granting of relief to the defendant, by way of cross-bill, in a subject matter which, if independently prosecuted, would be cognizable only at law. Sunflower Oil Co. v. Wilson, 142 U. S., 313, 325; Chicago, etc., Ry. Co. v. Chicago Bank, 134 U. S.. 276, 288. (3) The rule is subject to the qualification, that the mere allegation of a ground of equity jurisdiction, or of exclusive equitable relief, is not sufficient. So, w^here a cause of action cognizable at law is entertained in equity on the ground of some equitable relief sought by the bill, which it transpires can not, for defect of proof or for other reason, be granted, the court is without proper jurisdiction and should dismiss the bill without prejudice. Russell r. Clark, 7 Cranch, 69, 89; Dowell r. Mitchell, 105 U. S.,430; Rogers ?'. Durant, 100 U. S., 644; Buzard v. Houston, 119 U. S., 347. 354; Morss V. Elmendorf, 11 Paige Ch., 277; Dudley v. Congregation of St. Francis, 138 N. Y., 451, 458; Saner c. Ferris, 145 111., 115; Palmer v. Fleming. 1 App. D. C, p. 533; Kennedy v. Ilazleton, 128 U. 8., 007, 071; Merwin Eq., §398. IV. COURTS OF EQUITY HAVE NO INHERENT JURISDICTION IN EITHER OF THE FOLLOWING CASES: 1. TO PREVENT THE COMMISSION, OR INTERFERE WITH THE PROSECUTION, OF CRIMES. 2. OVER THE ELECTION OR APPOINTMENT AND REMOV.VL OF PUBLIC OFFICERS. (1) One of the earliest instances in which equity exerci-sed 12 EQUITY PLEADING. jurisdiction, in order to supply the deficiencies in remedies at law, was, where, in cases of assault and trespass and other outrages by violence, the petitioner for relief alleged that " he was»unable to obtain redress owing to the position or power- ful connections of his adversary." Out of this grew the writ of suppUcavit, which was granted upon the complaint of a suitor of the court that he had been abused and stands in danger of his life from another suitor, to take the offending party into custody and compel him to give bail for his good behavior. (Bispham Eq., Sec. 8 ; Adams Eq., Introduction, XXXI.) With the exception of the foregioing remedies, which them- selves were really founded upon an infringement of rights of property and which also soon fell into disuse, equity jurisdic- tion has, from the first, limited itself to the protection of civil rights, as distinguished from cases of criminal cognizance. Injury to property or rights of property, actual or pros- pective, is the ancient and sure foundation upon which the jurisdiction rests. In re Sawyer, 124 U. S., 200; Cope v. District Fair Association, 99 111., 489; Crighton c. Dahraer, 70 Miss.. 602; Atty. Gen. v. Tudor Ice Co., 104 Mass., 239; Atty. Gen. v. Utica Ins. Co., 2 Johns. Ch., 371; Sheridan v. Col- vin, 78 111., 237; Cochrane v. McLeary, 22 Iowa, 75; 1 Pomeroy Eq., Sec. 197; High on Injunctions, Sees. 20, 68, 272; Kerr v. Corp. of Preston, L. R., 6 Ch. Div., 163; Saull v. Browne, 10 Ch., 64. (2) Of late years there has been a disposition, in some of the States, to confer jurisdiction in equity for the prevention of offences that affect public morals and are therefore declared public nuisances ; for example, selling liquor, gambling, and keeping disorderly houses. It has been held that such legis- lation is not inconsistent with the constitutional guarantees of liberty and property and trial by jury. Mugler c. Kansas, 123 U. S.. 623, 670; Eilenbacker r. Plymouth Co., 134 U. S.,31. (3) The rule has this important (qualification : Equity will not refuse to restrain tlie doing of an act where serious and JURISDKTIOXAL KULKS. 13 irreparable, or incstiiuable danuige would result to ])rivate property, simply because it might also be jamislied as a crime. It will, therefore, enjoin. the commission oi' nuisances and con- tinued trespasses and destruction of property notwithstanding the acts may be offences against the criminal laws. In such cases the remedies are concurrent. The protection of property, or private rights, ought, how- ever, clearly to appear to be the real motive, and not the en- forcement of a criminal law. In re Debs, 158 U. S., 564; Arthur c. Cakes, 63 Fed. Rep., 310; Toledo, etc., R. Co. V. Penna. Ry. et al., 54 Fed. Rep.. 730; Cranford v. Tyrrell, 128 N. Y., 341; Marsan r. French, 61 Tex., 175; Mobile v. L. & N. R. R., 84 Ala., 115; Carlisle v. Cooper, 21 N. J., Eq., 576; Sherry v. Perkins, 147 Maas., 212. CHAPTER I. JURISDICTION OF EQUITY COURTS MISCELLANEOUS RULES, Rule 90. In all cases where the rules prescribed by this court or by the circuit court do not apply, the practice of the circuit court shall be regulated by the present practice of the high court of chancery in England, so far as the same may reasonably be applied consistently with the local circumstances and local conveniences of the district where the court is held, not as positive rules, but as furnishing just analogies to regulate the practice. Bale 1. The circuit courts, as courts of equity, shall be deemed always open for the purpose of filing bills, answers, and other pleadings ; for issuing and returning mesne and final pro- cess and commissions ; and for making and directing all interlocutory motions, orders, rules, and other proceedings, preparatory to hearing of all causes upon their merits. Bute 2. The clerk's oflEice shall be open, and the clerk shall be in attendance therein, on the first Monday of every month, for the purpose of receiving, entering, entertaining and disposing of all motions, rules, orders and other proceedings, which are grantable of course, and applied for, or had by the parties or their solicitors, in all causes pending in equity, in pursuance of the rules hereby prescribed. Bule 3. Any judge of the circuit court, as well in vacation as in (14) MISCELLANEOUS KULES. 15 term, may, at chambers, or on (lie ruk'-days at the clerk's office, make and direct all such interlocutory orders, rules, and other proceedings, preparatory to the hearing of all causes upon their merits in the same manner and with the same effect as the circuit court could make and dii-ect the same in term, reasonable notice of the application therefor l^eing first given to the adverse part}^ or his solicitor, to appear and show cause to the contrary, at the next rule-day thereafter, unless some other time is assigned by the judge for the hearing. Mule 4. All motions, rules, orders, and other proceedings, made and directed at chambers, or on rule-days at the clerk's office, whether special or of course, shall be entered by the clerk in an order-book, to be kept at the clerk's office, on the da}' when they are made and directed ; which book shall be open at all office hours to the free inspection of the parties in any suit in equity, and their solicitors. And, except in cases where per- sonal or other notice is specially rec^uired or directed, such entry in the order-book shall be deemed sufficient notice to the parties and their solicitors, without further service thereof, of all orders, rules, acts, notices, and other proceedings entered in such order-book, touching any and all the matters in the suits to and in which the}' are parties and solicitors. And notice to the solicitors shall be deemed notice to the parties for ^rhom they appear and whom they represent, in all cases where personal notice on the parties is not otherwise specially required. Where the solicitors for all the parties in a suit reside in or near the same town or city, the judges of the circuit court may, by rule, abridge the time for notice of rules, orders, or other proceedings not requiring personal service on the parties, in their discretion. liule 5. All motions and applications in the clerk's office for the issuing of mesne process and final process to enforce and 16 EQUITY PLEADING. execute decrees ; for filing bills, answers, pleas, demurrers, and other pleadings ; for making amendments to bills and answers; for taking bills jrro confesso ; for filing exceptions; and for other proceedings in the clerk's office which do not, by the rules hereinafter prescribed, require any allowance or order of the court or of any judge thereof, shall be deemed motions and applications grantable of course by the clerk of the court. But the same may be suspended, or altered, or rescinded by any judge of the court, upon special cause shown. Hide (i. All motions for rules or orders and other proceedings, which are not grantable of course or without notice, shall, unless a different time be assigned by a judge of the court, be made on a rule-day, and entered in the order-book, and shall be heard at the rule-day next after that on which the motion is made. And if the adverse party, or his solicitor, shall not then appear, or shall not show good cause against the same, the motion may be heard by any judge of the court ex parte, and granted, as if not objected to, or refused, in his discretion. LEWIS V. SHAINWALD. (Circuit Court for California : 7 Sawyer, 403-418. 1881.) Opinion by Sawyer, J. Statement of Facts. — This is a bill in equity, called by appellant's counsel a creditor's bill, based upon a prior pro- ceeding, in which a decree had been entered in the district court against the respondent, appellant here, for a large sum of money, and execution issued, upon which a return of nulla bona had been made. It is claimed by the respondent that, prior to the adoption of the Revised Statutes in the state of New York, no such thing as a creditor's bill, in the sense since used, was known ; that a creditor's bill of the character here set forth was un- known to the court of chancery ; and that, therefore, the case is not properly one of equity jurisdiction. Upon this propo- sition some decisions of the English courts are cited ; and it appears that some of the later decisions overrule some of the former ones upon certain points. LEWIS V. SIIAINWAI.D. 17 In this conncctUMi e(|uitv nilc '.)() is cited as Iiavintj; a Injur- ing upon the ease, as piescribing that the English chancery practice shall be adopted in cases where our ecpiity rules do not apply. That rule is as follows : " In all cases where the rules prescribed by this court or by the circuit court do not apply, the })raetice oi" the circuit court shall be regulated by the present practice of the high court of chancery of England, so far as the same may reasonably bo ajiplied consistently with the local circumstances and local convenience of the district where the court is held, not as positive rules, but as furnishing just analogies to regulate the practice." . In my judgment, that rule does not in any way affect the question. The jurisdiction of this court is derived from the Constitution and laws of the United States, and these rules are simply rules of practice, for regulating the mode of proceeding in the courts. They do not, and could not, properly, either limit or enlarge the jurisdiction of the court. The rule quoted simply regulates the practice in exercising the jurisdiction of the court in those respects wherein the rules adopted do not apply; but the practice of the high court of chancery is to be applied, not as controlling, but simply as furnishing just analogies to regulate the practice. I am satisfied tliat creditors' bills, of some kinds, whether of the precise character of that now under consideration or not, were entertained both by the English chancery courts and in the courts of chancery in the several states, particu- larly in the courts of New York, prior to the adoption of the Revised Statutes of the latter state. The creditors' bills which were recognized previous to that time were, perhaps, in different form from that then adopted ; but there undoubtedly were instances of bills maintained by creditors to subject the assets of del:)tors to the payment of their debts. The discus- sions upon the subject related mainly to the character of the assets and the circumstances of the particular case. In the case of Hadden v. Spader, 20 Johns., 554, before the court of errors, and in which the decision of Chancellor Kent sustaining a creditor's bill is affirmed, I think the rule is established that certain assets can be reached and appro- priated by a bill filed by a creditor ; and several prior cases.- recognized the same principle. In the subsequent case of Donovan v. Einn, llopk., 51), 2 18 EQUITY PLEADING. there was suggested some limitation. That case, however, did not overrule, or purport to overrule, as it could not, the •decision of the court of errors in the case last referred to. Indeed, the two decisions, as to the real point involved and decided, do not conflict. The latter case was one into which the element of fraud, either actual or constructive, did not enter. It was simpl}'^ a case where a legacy had been left to a debtor, which was in the hands of an executor, and a creditor's bill was filed to reach that legacy. There was no collusion or fraud, or voluntary conveyance, or other subject- matter of equity jurisdiction in the case. The debt was treated as an lionest debt; and tlie chancellor held that it could not properly be reached by a creditor's bill. He recognizes, however, the propriety of filing such bills in cases of fraud. Frauds and trusts are in themselves subjects of equity jurisdiction. Indeed, matters of fraud and trusts are among the most extensive heads of equity jurisdiction. Wherever there is fraud in a case which cannot be fully remedied at law, equity intervenes and uncovers the fraud; and the fact that a creditor is injured by a fraudulent con- cealment or withholding of propert}' brings him into such relations to the fraudulent transaction that he may, on that ground, invoke the equitable jurisdiction of a court of equity; have the fraud uncovered, and take hold of the funds or the property fraudulently concealed and withheld from him. He comes within the jurisdiction of the court, not merely because he is a creditor ; not because his bill is a creditor's bill; but because he presents a case in which he sets forth matters of fraud or trust; and equity entertains his bill simply because he stands in such a relation to the fraudulent transaction that he is entitled to have the fraud uncovered, or a trust declared and enforced. This principle is recognized in the case last referred to. I read from the decision as reported in 14 American Decisions, page 533. After stating that "it is apparent that this case does not belong to any general head of equitable jurisdiction, such as frauds, trusts, accidents, mistakes, accounts, or the specific performance of contracts;" that "there is neither fraud, nor trust, nor accident, nor any other ingredient of equitable jurisdiction," the chancellor proceeds to say: " The English cases cited proceeded, as I conceive, not upon the ground of subjecting the credits of the judgment debtor to LKWIS V. SlIAINWALI). li> the payment of his debts, but ui)on some ground of (.'(juitable jurisdiction, as fraud or trust, existing in each case. . . . The case of Bayard v. Hoffman, 4 Johns' Ch., 450, was not the case of a judgment creditor; but tlie object of the suit was to annul an assignment in trust, made by a debtor without con- sideration. The assignor was insolvent when the assignment was made; that ftict not being then known, no actual fraud was intended ; but the assignment had all tlie operation of fraud against the creditors of the insolvent debtor; and for these reasons the cause was of equitable jurisdiction. . . . " The case of Hadden v. Spader, 5 Johns. Ch., 280, and 20 id., 554, was also a case of an assignment by an insolve;it debtor of property upon various trusts. It was clearly a case of trust; the assignment was charged to have been made by fraud, and, though the answers denied that fraud was in- tended, the facts exhibited a case of fraud. The effect of the assignment, if it had prevailed, would have been to withdraw and screen from execution the property of the debtor ; the assignment was held to be void, and the judgment creditor had relief. These are the principal cases which have been adjudged in this court, and in all of them some acknowledged ground of equitable jurisdiction existed. In general they ■were suits to set aside conveyances, which prevented the seizure of property by the sheriff, and the conveyances have been considered frauds, either actual or constructive. . . . " In giving relief in such cases, this court does not proceed upon the idea of giving execution against a species of i^roperty which is exempt from execution at law; but it acts upon some of the most ancient grounds of its jurisdiction, whicii enable it to give relief in cases of fraud and trust, either to a judg- ment creditor or to any other person M'hose just rights may be destroyed or impeded by such a cause. . . . " I fully concur with Judge Piatt in his opinion given in the case of Hadden v. Spader, and in his view of the powers and jurisdiction of this court, in respect to the rights and remedies of creditors. The case now to be decided lias not one feature of equitable jurisdiction. In it there is neitlier fraud, nor trust, nor conveyance of property, nor any inter- ruption of the effect of an execution or the due course of jus- tice at law. . . . "But when equit}' has jurisdiction, by reason of some dis- position of the debtor's proj)erty, made in fraud of tlie 20 EQUITY TLEADING. creditor, and wJieii, in such a case, the slicriff of the county in which the property is situated returns upon the execution that no property is found, the return is important evidence to show that the fraudulent disposition has had effect by pre- venting the service of the execution. By the existing law, the property of a debtor consisting of things in action held by him without fraud is not subject to the effect of any execution issued against his property; and while a court of law does not reach these things by its execution, a court of equity does not reach them by its execution for the purpose of satisfying either judgments at law or decrees in equity. " All conveyances made to defraud creditors are void, both in law and equity. When a fraud api^ears to a court of law, the conveyance is there adjudged void. When such a fraud is presented to this court, it is of equitable jurisdiction ; and the property of the debtor fraudulently transferred is subject to the satisfaction of his debts, in favor of a creditor complain- ing of the fraud. Does an insolvent debtor transfer his prop- erty to another person in trust for himself, or in such a manner as to defeat the effect of a judgment and an execu- tion ? Tliis is the frecjuent case. It is a case of both fraud and trust, and it is of equitable jurisdiction. It was the case of iVIcDermut v. Strong, and of Hadden v. Spader. In all such cases this court vacates the fraud, sets aside the convey- ance in trust, and, acting both upon the debtor and his trustee, it does complete justice to the creditor. Thus the jui-isdiction of this court reaches, and reaches effectually, those cases of fraudulent conveyances and assignments in trust, which form the great and most vexatious impediment in the course of justice between creditor and debtor. Bills for discovery, where no relief is sought, also afford important aid to creditors against their debtors. But this court has no power to cause stocks, credits and rights of action, held by a debtor, without fraud, to be sold or converted into money, to be transferred to the creditor or to be applied to the payment of debts." Now this is the distinction between this case of Donovan v. Finn and the other cases referred to. In the latter case it is the element of fraud which brings them within the jurisdic- tion ; and a creditor, as well as any other party who is injured by the fraud, is able to maintain a bill to have the fraudulent act vacated, and to be relieved from the consequences of it. LEWIS V. SIIAINWAI.D. 21 In a note appended to the report of the ease hi.st eited it is said : " It is doubtful, where there lias been no legislation upon the subject, whether, in the absence of fraud or any other well-known ground for sui)poi'ting the exercise of its jurisdiction, equity will assist a creditor to reach those assets of his debtor which under no circumstances could have been subject to execution at law." A large number of eases are then cited ; and it is then added : " What stocks, choses in action, franchises and other property which was not subject to execution at common law, can now, in the absence of any statute on the subject, be reached by a creditor's bill, must still be regarded as unsettled. By such bills creditors have in several instances succeeded in obtaining satisfaction out of the interest of an heir or dis- tributee while still in the hands of an executor or adminis- trator." Then follows another citation of numerous authori- ties, which I have not examined, as I did not consider it necessary to this decision. In this case the charge of fraud is set up in the bill, in which it is alleged that the respondent has made fraudulent transfers of his property ; has converted portions of it into money, and secreted the proceeds ; that other property, to the amount of many thousands of dollars, has been concealed from the complainant in order to prevent him from securing it by execution issued under the decree of the court ; and that he is about to carry all his money and other property beyond the jurisdiction of the court ; the notorious and declared pur- pose of all these acts being to defraud the complainant, and render it im[)Ossible for him to realize any portion of the amount to which he is entitled under the decree, ^ly his demurrer the respondent admits these averments of the bill, and takes his stand upon the point that the court is without jurisdiction to entertain or determine a cause of the chai'acter of that which is set forth in the bill. The case of Mountford v. Taylor, G Ves. Jun., 787, which has been cited here, was a case similar to the one at bar. The bill stated that the judgments were obtained at a time when " the defendant was, ever since has been, and now is, seized for his own use of freehold estates foi- his life or some greater estate; that the plaintiffs sued out writs of clq/it uj)on these judgments; but neither of them has been able to dis- cover where the estates of the defendant are situate," and 22 EQUITY PLPJADING. does not know what they are or where they are. But the comphiinant charges that in or about the year 1795, some years before, the defendant, upon taking a seat in the house of com- mons, took the oath as to his having the requisite amount of property to qualify him to act as a member of that body, and that " he also delivered to the clerk of the house of commons, or some other officer of the house, a schedule, containing the particulars of the estate, whereby he made out his qualifica- tions ; and the plaintiffs are unable to obtain the said schedule." They also state that if, as he pretends, he has since conveyed the estates of which his cpialification was com- posed, " such conveyance was without consideration, and in trust for himself; " and the bill prayed for a discovery. The defendant demurred as to the main statements recited in the bill; Mr. Mansfield and Mr. Pemberton claiming, in his behalf, that the object of the bill was idle curiosity ; that no creditor had a right to make these inquiries. During the argument, the lord chancellor, throwing out suggestions, says : "It seems admitted that they have a right to come here for a discovery, where the property is, in order to make their judgments available. That certainly will not affect real property had before the judgment was obtained, if no longer under such circumstances that the creditor can follow it : but it does not follow that he cannot, merely because it does not remain in the ownership of the debtor; for there may be many cases in which he might. There is a material charge in this bill, that if there was any conveyance, it was without consideration." There is no positive averment in the l)ill that there was a conveyance made by the defendant; but it alleges that, if there was a conveyance, it was made without consideration ; and that, the lord chancellor says, is a material charge. He then proceeds to say : " First, in the common case will a bill for a discovery lie, with all this particularity, to know every estate he has sold and disposed of for three years? If so, he may go back forty years." He then remarks: "There is difficulty upon the objection, that this would extend to an estate parted with forty years ago, without consideration ; and I am not quite clear that such a bill must not allege that at a given time the defendant was seized of given lands (not simply suggesting, as a fishing bill, that at some time or other he had some land); and that he conveyed these lands away fraudu- lently, to put them out of the reach of his creditor." LEWIS V. SIIAIXWALI). 2d These remarks quoted were made by Lord I']ldoii during the argument ; and lie took the ease under eonsideration, and on the 20th of March he overruled, the demurrer, saying: " The bill is met b}^ a defense, admitting that it is a proper bill ; and the answer does not negative all that is material to be answered. With respect to the nature of the qualification, if he had said the property he gave into the house of commons was not liable to execution, tne court ought to be content with that, without requiring from him more particularity. IJut the bill charges that the defendant delivered dn a schedule of the particulars of the estates, whereby he made out his quali- fication, and that he has conveyed them without consideration, as evidence that he lias lands liable to execution ; as they may be unquestionably. Upon that I think he must answer." In this case of Mountford v. Taylor, then. Lord Chancellor Eldon held that the conveyance of his estate by the defend- ant without consideration was fraud ; and that a creditor, as well as anybody else, might avail himself of it. In their bill the complainants in the case declare that they do not know the character of defendant's estates, nor where they are situ- ated ; but that he had, upon taking his seat as a member of the house of commons, delivered to the clerk or other officer a verified schedule in which his estate was set forth, which schedule the plaintiffs are unable to obtain. All of the allega- tions of the bill with respect to the defendant's property are argumentative. The complainants further alleged, however, that the defendant had conveyed his estate, without con- sideration, and in trust for himself, and they were unable to find it. These allegations of this creditor's bill are as indefinite as could possibly be ; yet the lord chancellor sustains the bill; and his decision in that case, as well as the decisions in the cases of Spader v. Hadden and Donovan v. Finn, referred to, and numerous other cases cited in those decisions, sustain the ground that where the case presented is one of eciuitable juris- diction, a creditor, as well as anybody else, is entitled to the aid of and redress from the court. In the bill in the case at bar, it is alleged that the re- spondent has converted a certain portion of his proi)erty, to the amount of $20,000, into cash, which he has concealed, with the intention of carrying it out of the United States; that he lias other property, to the amount of §00,000, which 24 EqUITY ]'LKADIN(1. he hiis so arranged and concealed that lie will be enabled to take it out of the United States ; and that hi.s express and declared purpose in so concealing and arranging his prop- erty, and in carrying out his intention of taking it away with him, is to fraudulently evade this complainant's execution. This bill has been designated by the appellant's counsel a "fishing bill." What is meant by this term is indicated by Lord Eldon in tho cited case of Mountford v. Taylor, in the previously quoted language — " not simply suggesting as a fishing bill, thitt at some time or othei" he had some 'land," which was a remark thrown out during the argument. Such a bill is one in which there are no allegations of a definite or positive cluiracter as to the defendant's having at any time owned property which could have been subject to execution upon the plaintiff's claim ; or one asking for a discovery as to matters which cannot in any way affect the rights of the parties. It is evident, fi'om the way he uses the expression, that it is to cases of that class that Lord Eldon refers. In that case it is alleged in the bill that at a certain time the defendant did have some property, which property he had since conveyed, if conveyed at all, without consideration, in trust for himself; and, although the complainants are unable to state where the property of the defendant is, the lord chan- cellor does not consider the bill a fishing bill, but overrules the demurrer and compels the defendant to answer with refer- ence to that particular property. The nature of a fishing bill is defined by Chancellor Kent (then a judge of the court of errors of New York) in the case of Newkerk v. Willett, 2 N. Y. Cases in Error, 296, in which he says : " The bill does not state sufficient equity to entitle the appellants to a discovery. It states generally that the respondent had made a demand upon one of the appellants, as executrix of Peter Schuyler, deceased, and that, as he did not produce any voucher, she had refused to pay him. It states further that he proposed an arbitration, which she re- fused, and that finally he had brought a suit against the ap- pellants in the supreme court. The bill states further that the appellants know nothing of the demand of their own knowl- edge, but that they believe it unjust, because the res})ondent took no measures to liquidate and settle it in the life-time of IVter Schuyler, and does not now produce any vouchers, and has been inconsistent in what he has from time to time said as to the nature and extent of his demand. I,i:\\IS \-. SIIAINW.M.I). Z.) "This is the substance of the hill : it aniouiits to this: ihc respondent has sued us at hiw. and we (h) not know for what, and therefore we ask for a discoviTv ht'-foi'i-hanih ahiiout^h we have reason to conclude he has sued us u})()n some r., 1936; Durham v. Jackson, 1 Paige, 629; Gilbert v. Colt, 14 Am. Dec, 561, note. It is sufficient if the facts alleged in the bill, and established, show a proper case for the writ, and it may be granted in the decree under the prayer for general relief. Or the facts may be shown, and the ■writ applied for upon a petition {)resented in the case either before or after judgment or decree. The limitation of equity rule 21 onlv applies where the writ is asked for " pending the suit." '"And it is further ordered, adjudged, and decreed, that the writ of 7?c exeat repuhlka of the United States of America issue out of and under the seal of this court, to restrain the said Harris Lewis from departing out of the jurisdiction of this court." That is the form of that portion of the decree relat- ing to this matter. I think it would have been better, and it certaiidv would have avoided criticism, if to this had been added — " until the satisfaction of the decree, or the further order of the court." Respondent's counsel cites a case in 2 Wash., to show that 28 EQUITY l'LEADIN(;. a district court has no authority to issue a, writ of ne exeat. In that case, however, the writ was issued by the judge, and not by the court. That case arose at a time when the juris- diction of the district court was limited, and did not cover a case of the cliaracter of that now under consideration at alL There is a distinction between the judge and the court, a dis- tinction recognized in tlie Revised Statutes. Section 717 reads : " Writs of ne exeat may be granted by any justice of the supreme court, in cases where they might be granted by the supreme court; and by any circuit justice or circuit judge, in cases where they might be granted by the circuit court of which he is a judge. But no writ of ne exeat shall be granted unless . . . satisfactory proof is made to the court or judge granting the same, that the defendant designs quickly to depart from the United States." By the Revised Statutes, section 716, it is provided that " the supreme court and the circuit and district courts shall have power to issue writs of scire facias. They shall also have power to issue all writs not specifically provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the usages and prin- ciples of law." The wiit of iie e.reat is one of the writs necessary to the exercise of the present jurisdiction of the district court. The jurisdiction of that court has been enlarged since the adoption of these statutes, and since the date of the decision last referred to. In cases of the character of the one at bar, it has now concurrent jurisdiction with the circuit court. The authority of the district court to issue this writ is therefore unques- tionable. The decree of the district court must be affirmed, except that, if the appellant so elects, it may be modified in the respect indicated. UNITED STATES v. PARROTT. (Circuit Court for California: 1 McAllister, 447-4(36. 1859.) Opinion by McAllister, J. Statement of Facts. — In this case a bill was filed by the district attorney of the United States, in behalf of the govern- ment. Among other matters, it alleged that the title to the premises in dispute was in the United States; that defendants UNITED STATKS V. TAItKOTT. 29 had taken tortious possession ol'tlieni; that tliev eonsisted of a mine of great value; that del"en(hints had extracted minerals therefrom to the value of §8,0U0,0U(); that they were extract- ing therefrom minerals to the annual amount in value of $1,000,000, and threaten to continue the waste; that tiiey were unable to respond for the damages which had already accrued and which would still accrue; that the defendants, in the name of one Andres Castillero, had presented a petition to the " Board of Land Commissioners," under the act of con- gress approved March 3, ISol, which was pending on appeal from the decision of the connnissioners, before the district court of the United States for the northern district of the state of California, the object of which petition was to obtain from the United States a confirmation of the title which they pre- tended to hold from the INJexican government ; that the title under which they held possession was forged, ante-dated and fabricated in pursuance of a conspiracy to cheat and defraud the Unit(.'d States of their rights to the said pro[»erty. The bill concluded b}^ cliarging that defendants were destroying the substance of the mine, and prayed that an injunction might issue to stay the waste defendants were committing, and threatened to commit, until the determination of their alleged title by the tribunals to which the adjudication of it was confided, and that a receiver be a})pointed. To this bill an answer was filed, and on the bill and answer the motion for injunction was argued and decided. The charges in the bill specifically made, of forgery and ante-dating of the docu- mentary title under which defendants held, were not directly and fully denied; all that was averred was the ignorance of defendants of their existence, and their belief of the genuine- ness of the documents. In relation to the charge made in the bill of a conspiracy to cheat and defraud the United States, after admitting the genuineness of all the letters save one, appended to the bill, the answer, in response to the allegation of conspiracy, denies " that the said letters and communica- tions were written b}^ the said parties with intent to commit a fraud or in furtherance of a conspiracy to fabricate a title, as charged in said bill, except so far as the said intention ap- pears from said letters on the part of the said James Alex- ander Forbes." So far, then, as the intention of conspiracy appears from the letters, it was admitted that " Forbes," under whom two of the defendants claimed, may be guilty. Jn view 30 EQUITY PLEADING. of the insufficiency of the denials in the answer, the irrepar- ahlo character of the mischief comphiined of, and the j97-i7»a facie title of the complainants exhibited by the bill, answer and exhibits, the court granted the injunction and refused the appointment of a receiver. The well-settled rules of chancery require that full, direct and positive denials should have been given to the charges of fraud, forgery, ante-dating and conspiracy. This doctrine is enunciated by uniform decisions. Poor v. Carleton, 3 Sumn., 77; Clark v. Van Riemsdyk, 9 Cranch, 160; Everly v. Rice, 3 Green, Ch., 553 ; Roberts v. Anderson, 2 Johns. Ch., 202; Apthorpe v. Comstock, 1 Hopk., 143 ; Ward v. Van Bokkelen, 1 Paige, 100. Independently of authority, reason and com- mon sense affirm the propriety of the rule. The facts charged in the bill were forgery and ante-dating. These were not denied, but the ignorance of the defendants of their existence and their belief in the non-existence of them averred. In Roberts v. Anderson, 2 Johns. Ch., 202, Chancellor Kent has well said: "the defendants may have given all the denial in their power ; but the frand may exist notwithstanding, and consistently with their ignorance or the sincerity of their belief." It has been suggested that the allegations of the forgery and ante-dating not having been sworn to from personal knowledge, that circumstance should modif}^ the rule. No authority has, nor, it is believed, can be invoked to sustain a proposition so novel. The allegations of a bill properly made, which so clearly charge the fraud as to make it perfectly in- telligible to the defendants, entitle the complainant to such a denial as is prescribed by the rules of chancery. If such an one is not put in, the defendant cannot arrest the issue of an injunction on the ground that he has filed an answer denying the equity of the bill. Relax that rule, and what might not be the injurious results? There are many cases in which rights may be violated under circumstances which may warrant an honest belief that atro- cious fraud had been perpetrated ; but those circumstances may have transpired at a distance from the party, and he un- able to swear to them from personal knowledge. Can it be contended with any reason, that when the party comes into a court of equity, that tribunal will award to an answer whose denials of forgery and ante-dating are made "upon informa- lNITi;i> STATES V. TAKKOTT. 31 tion and belief," the cliai'aeter which tiie hiw aiuuwes to an answer whore the denial of" the iVaud is on jiersonal ivnowl- edge? The allegations of a bill are niwc pleacHngs ; the aver- ments in an answer responsive to them are regarded as evideneo eqnivalent to two disinterested Avitnesses, or one witness and strong corroborative circumstances. To consider that the denials of an answer on "information and belief" are to be deemed sutlicient because the allegations of the pleadings are not sworn to from personal kn(jwledge is simi)ly to confound the distinction wdiich exists between pleadings and evidence. So to modify the rule would exclude any ap})lication by the way of information, through its oiticer, b}^ a government. To every such application an answer on "information and belief" would be sufficient, for personal knowledge of facts is not to be expected from the government. Deeming the rule applicable to this, as it is to all similar cases, the court considered that the denials of the fraud, ante- dating and forgery were not such as ought to arrest the issue of an injunction ; that the case was one of irremediable mis- chief; and lastly, that the j^lcadings and exliil)its in the case showed a probable foundation to entitle the complainants to be protected against that irreparable mischief, until the deter- mination of the question of title in the tribunal in wdiich it was pending, — this court, without pausing to dwell upon tlie title set up by defendants, independently of any alleged forgery of it, directed the injunction to issue, but declined for the present the appointment of a receiver. The injunction exists; the issue of title is still })ending in the district court ; there is no suggestion of any fact that has arisen since the decision of the court to change the relative attitude of the parties from what it was at that time, nor to alter the jurisdiction of the court in an}' way over the case. That jurisdiction was distinctly enunciated to be confined to granting the prayer of the bill, the court disclaiming at the same time all power to decide upon title, either on a motion to dissolve an injunction, or on a final hearing. In this condition of things, an application is made to this court to designate commissioners to take testimony abroad. The facts expected to be proved go mostly to the establishment of the title of the defendants, and the genuineness of the documents by which they propose to sustain that title. The avowed object of invoking that testimony is " to offer it in 32 EQUITY PLEADING. evidence on the trial of this case, or on a motion to dissolve the injunction which has been granted against the defendants therein, or for any other purpose in said cause to which such evidence shall be applicable." The grounds taken in support of this motion are: 1st. That it is matter of right, grantable of course. 2d. That the materiaUty of the testimony invoked, whether there is to be any hearing at all in the case, whether the testimony would be hereafter admissible, are all matters to be considered when the evidence is offered, not by anticipation. If the first prop- osition be correct, the second follows as a corollary from it. The first ground which claims the action of this court as a matter of right, and the granting of the application as matter of course, presupposes the act of the court to be merely minis terial. If this be so, it has no right to investigate whether the testimony be material, or whether it can be used when obtained. All it has to do is to perform the mere ministerial duty which it is commanded to discharge, and the present ap- plication is needless. Whence the necessity of naming Avit- nesses, the facts they are expected to prove, and the purpose for which their testimony is invoked, if this motion is grant- able as a matter of course? Both these grounds will be dis- cussed together, for each is involved necessarily in the other ; for if the granting a '' dedimus potestatem^^ is matter of course, the court has nothing to do with the materiality of the testi- mony, the use to be made of it, or any other matter connected with it. If, on the contrary, the power of this court to grant this application depends upon the materiality of the testimony, and the purposes for which it is invoked, it is evident that neither ground can be tenable. To sustain the proposition that the granting of the present application is matter of right, reference is made to the sixty- seventh rule governing equity practice, as amended in 1854 by the supreme court of the United States, and to the fifth section of the act of congress of 22d August, 1843. By the sixty-seventh rule it is provided that, after a cause is at issue, commissions to take testimony may be taken out in vacation, as well as in term time, upon interrogatories filed by the party taking out the same in the clerk's office, ten days' notice being given to the adverse party to file cross- interrogatories before the issuing of the commission, etc. And the rule provides that, in all cases, the commissioners UMTKI) STA'IMIS V. I'AliltO'ir. 33 shall be iiainod by the court, oi' a Jiidm' llicicof. 'I'lic aiiiciKJ- nient to this rule, to bo Ibuiul in 17 Howard, |». vii, declares tliat the presiding judge of any court -exercising jurisdiction, either in term time or vacation, may vest in the clerk of said court general power to name commissioners to take testimony in like manner that the court or judge can now do i>y the sixty-seventh rule. The presiding judge of this court has never vested in the clerk any such power. We must look, therefore, to the former rule, the construction of which will necessarily determine the extent of any power which the judge could have delegated to the clerk ; for the judge could not have delegated any power which he did not himself possess, and which, by the requisi- tions of the amended rule, was to be exercised by the clerk in the same manner as it could be by the judge. The fifth sec- tion of the act of 22d August, 1843 (5 Statutes at Largo, 517), provides that the district courts as courts of admiralty, and the circuit courts as courts of equity, shall be deemed always o[)en for certain purposes, and that it will be competent for any judge at chambers, and in vacation as well as in term time, to award all such process, commissions, rules and pro- ceedings, etc., ivlienever the same are not yrantahle of course, according to the rules and j)ractice of the court. It is evident, then, from the act, that all commissions are not granted of course. Looking through the equity rules, it will be found that a distinction is j^reserved between special motions and those grantable of course. What constitutes a motion grantable of course, and a special one, is to be inferred from the llfth rule of equity. The distinction is, that a motion which requires an allowan(!e from the judge, or a notice to the opposite party, is a special one ; all others are grantable of course. This motion asks for tlie interposition of the judge to nominate commi.ssioners, and requires that previous notice of ten days should be given. In addition to foregoing rules and act of congress, reference has been made to Daniel's Ch. Practice, 1099, where that author discusses the question what facts are necessary to be inserted in the affidavit on which the application for a com- mission is founded, and shows it is, ii-om the authorities, un- certain whether the names of the witnesses, or a statement of the points to which it is intended to examine them, are neces- sarily to be given in the affidavit. In relation to the iu\mes of 3 34 EQUITY PLEADING. witnesses, he states that, according to the books of practice, all that need be stated in the afjidavit is that the testimony of ■some of the witnesses whom it is proposed to examine is material, and that the party cannot proceed to trial safely without their testimony. He further states, when the appli- cation is made in an early stage of the case, the court seldom denies the application for a commission ; it will, however, exercise a discretion upon this subject, and he gives various instances wh.ere such applications were refused. As to the necessity of stating the facts to be proved, or the names of the witnesses in the affidavit, the conclusion to which he comes, after a review of the authorities, is that, in order to ■dispense with the necessity of stating them in the affidavit, the names of the witnesses, and the object to which their testi- mony is required, and the necessity for examining witnesses abroad, must be evident from iha pleadings, if not made so by the affidavit; and he distinctly states, that the reason why Lord Eldon, in the case of Montizibel v. Machada, did not require those matters to be stated in the affidavit, was, that his lordshij) had looked into the case, as made by the plead- ings, in order to see whether there were facts to which it was proper to examine the witnesses. The same author tells us, that it must appear that the focts relied on as to which evi- dence is sought are such as can be made use of, either in sup- port of the action or in defense of it. Daniel's Ch. Practice, 1096. The foregoing authorities (all that have been cited by counsel) do not sustain the })roposition asserted. There are but two sources of power to which this court can look for its action to obtain the testimony of absent witnesses. The first is by the issue of letters rogatory. There is no instance on record of these having been issued as a matter of course, nor is the present an ap[)lication for such. The second source is statutory ; nor can this court receive any aid, save by implica- tion, from that source. The two acts of congress upon this subject are those of 24th September, 1789, and 24th January, 1827. The former, after describing minutely the mode of taking depositions de bene esse, limits the execution of commissions to an American magistrate. The latter act (1827) is limited in its terms to the execution of commissions within the limits of the United States and their territories. It would be a strange state of UNITED STATES V. I'AKROTT. 35 things, that, without any exj)rcss legislation as to the mode and manner of issuing connnissions, parties wouhl have the right to consider the issue of a commission to take testimony abroad grantable of course, and the nomination of commis- sioners a mere ministerial act by the judge. The only source of power to which this court can look is the thirtieth section of the judiciary act of 1789 (1 Statutes U. S., 90) ; and from it derive that power by implication. That section provides " that nothing herein contained shall be construed to prevent any court of the United States from granting a dcdinius pofefi- tateni to take depositions according to connnon usage when it may be necessary to prevent a failure or delay of justice." This act, like all laws made in derogation of the common law, should be strictly construed. No commission should be issued under it, unless necessary to prevent a failure or delay of justice, or in accordance with common usage. What is meant by common usage, when an application is made to a court of equity for a dedimus potestatem to authorize the taking of testimou}' abroad? It has been contended, on this motion, that by the terms " common usage" in tlie statute of 1789, congress must have meant the practice of the courts of the states ; and the case of Buddicum V. Kirk, 3 Cranch, 293, has been cited to sustain this propo- sition. It is true that Conkling, in his treatise (p. 421), states that the above case enunciates a proposition which he embodies in these words : " The circumstances under which a commission will be issued, and the mode of obtaining, executing and re- turning it, in the several districts, depend upon the practice and laws of the respective states, and the rules of the several courts of the United States." If this text-writer intended to say that the rules of chancery, in relation to taking testimony abroad, were to be in accordance with the practice and laws of the different states, he asserts a doctrine totally indefensible. If such was his intention, his ingenuity has detected in that case what has escaped the sagacity of Mr. Justice Curtis ; for the latter, in his head-notes (1 Curtis, 584), has failed to })er- ceive, for he does not notice, any such doctrine. The case of Buddicum v. Kii-k was a common law case, and the question arose whether service of a notice to take a deposition upon an attorney at law was equivalent to one upon an attorney in fact? As the law of Virginia required the notice to be made 3f) EQUITY TLEADING. on the attorney in fact, the court, very properly, under the thirty-fourth section of the judiciary act, adopted the law of the state in a common law case. That case is no authority to sustain the proposition that the practice of this court, acting as a court of equity, is to be controlled b}' the practice of the state courts, whatever that may be. It would make the chancery jurisdiction and practice of the federal courts sub- servient to the practice of the courts of every state in which the federal court might sit ; whereas, it must be uniform in all the states. In Gaines v. Relf, 15 Pet., 9, this question is fully discussed, and even in Louisiana, where there is no equity state court, it was decided that chancery practice pre- vails in the circuit court of that state, and must prevail in accordance with the rules prescribed by the supreme court, and where they are silent, according to the practice of the high court of chancery. The question then arises, whether an application to a court of equity to take testimony abroad is grantable of course, and all considei'ations of the materiality of the testimony invoked, and the purposes for which it is sought, ai'e to be postponed until the testimony is offered as evidence. Authorities have been cited to sustain the position that a party has a right to move to dissolve an injunction, and even to renew such motion. This is doubtless true ; but the right to make any number of such motions does not alter the nature of the evidence proposed to be offered to sustain them, or fix the propriety of granting the application to take testimony abroad. These are to be controlled by the usages and rules of a court of chancery. The proviso to the thirtieth section of the judiciary act of 1789 (1 Statutes U. S., 90) gives the power to issue a dedimus potestatem according to "common usage." When an applica- tion for such process is made to a court of equity, that com- mon usage is to be ascertained by reference to the usages of chancery. One of the fundamental principles which controls that court is, that as its object in compelling a discovery, or granting an application for a commission to take testimony abroad, is to enable itself, or some other court, to decide on a matter in dispute between the parties, the discovery or testi- mony sought must be material to the relief prayed for, or material to be used in some other suit actually instituted or proved to be capable of being instituted in another forum. UNITED STATES V. I'AltKoTT. 15/ If, therefore, the party does not sliow the testimony he seeks is material to enahle him to siiji])ort or defend a suit, he shows no title to what he seeks; and, eonseijUently, if he seeks it by bill a demurrer will lie; if he seeks it by motion, he is not entitled to it. 8uch is the doetrine enunciated by Lord Redesdale (Mitford's Ch. PL, 102). It is illu-strated by decided cases. Daniel, in his treatise, cites from the case of iShedden v. Baring, 3 Anst., JSSO, to sustain the proposition that a bill for discovery or a commis- sion to take testimony abroad must not only show that the action has been brought, but it must show that the facts relied on as to which evidence is sought are such as can be made use of, either in su])port of the action or in defense of it ; otherwise, the bill will not lie. In England, the usualmode is to apply b}' a bill for a discovery and a commission to take testimony abroad, or to take testimony abroad only. " A bill of this kind [says Daniel], for the mere purpose of examining witnesses abroad, is subject to nearly the same rules as bills for discovery in aid of an action at law." Daniel, 1096. There can be no stronger proof that an api)lication to take testimony abroad is not matter of course, but is an ap})lication to the judical discretion, than the fact that the ordinar}'' course in England is to apply by bill in equity to obtain it. In Lousada v. Templar, 2 Russ., 561-564, Lord Eldon says, " that though the circumstances were such that, even if the jdaintiff at law had obtained a verdict, he could not allow him to receive the money until it was ascertained what had been done in Peru, yet lie would not grant commissions in aid of a defense to an action when he was not satisfied that tlie facts alleged as a defense would constitute a legal defense to the legal de- mand." The court (he added) " ought never to grant a com- mission without examining strictly what is the state of the pleadings." It is evident, from this statement of the loid chancellor, that when after his retirement from office he gave an opinion, as stated by Daniel, that the witnesses' names need not be inserted in the affidavit, he did not intimate they and the other facts were not necessarily made to aj)i)ear in the pleadings and by other means. In the case of Martin v. Nicholls, 3 Simons, 458, there is a strong illustration of this doctrine. Tlu- principle a.-^serted is that a bill lor discovery against a defendant, and a prayer for a commission to take the examination of witnesses, is dernvr- 38 EQUITY I'LEADING. rahle. The facts in the case were that a bill was filed, alleg- ing that a judgment had been obtained against complainant in Antigua, on which an action was pending in England against the complainant. It set forth certain facts to show the foreign judgment was void, prayed a discovery against the defendant, and stated that without proof of such facts the complainant could make no defense at law ; it prayed, also, that a commission might issue to take the testimony of witnesses at Antigua and other j)laces beyond the sea. A demvrrcr was filed. The court, after deciding (correctly or not is not the inquiry) that to the foreign judgment the facts, if proved, could not constitute a defense, for that reason sus- tained the demurrer. The chancellor said, " If I were to allow this bill to stand, I should be in effect saying that the judg- ment obtained in ' Antigua' may be overruled in the court of common pleas." In the language of the chancellor in that case, this court may say that if they allow the present applica- tion, so far as the evidence as to title goes, that it is in effect to say it has the right to try title. Lord Eldon has said, as we have seen in Lousada v. Templar, 2 Russ., 501, the court ought never to grant a commission without strictly examining the i)leadings. This is for the purpose of ascertaining the issue to be tried by the court, and the materiality of the testimony to try it. When we look at the pleadings in this case, we find the relief prayed for is the issue of an injunction to arrest the destruction of property until an adjudication of it has been made by the tribunals to which it has been confided by law. The whole structure of the bill assumes the ground, and upon it asks the relief j)rayed, that the district court has sole jurisdiction between the par- ties on the question of title, and that all the power of this court is limited to granting an injunction, and thus extending a relief not within the sphere of the district court. In the answer a demurrer is incorporated, which assigns as one of its grounds, that it appears from the bill itself that no other than the district court can entertain jurisdiction of said claim. It has been contended throughout, by the defendants, that this court could not adjudicate upon title, it being within the sole jurisdiction of the district court, and that circumstance assigned as a reason why this court could not entertain juris- diction of this bill, which asks for the issue of an injunction. The court, by decreeing the relief phiyed for, asserted jurisdic- UNITED STATES V. PAUKOTT. '6\) tion over the injunction, i>ltlK)U<;li it (lisd.iiincd all power to decide title. They did so upon the ground that a court of equity would provide for the safety of i)roi)erty in dispute, pending a litigation, arid sustained the position by reference to the action of the English chancer}' in relation to the preser- vation of property in dispute in the ecclesiastical courts. Now, the })leadings in this case are not changed ; the issue is the same; title is no more now in issue in tliis court than it was; the jurisdiction of this court over this case is in no ways altered, increased, or diminished. Under these circumstances, application is made to obtain testimony from abroad whicli relates to the title of defendants, to be used on the trial of this cause, or upon a motion to dis- solve the injunction which has been granted. It is the ordinary practice of a court of chancery to dissolve an injunc- tion already issued, after answer tiled; and there is no objec- tion to the renewal of such motion upon new and material testimony which would be admissible as evidence on the issue pending between the parties. Indeed, such motion may arise on any new matter which may have arisen since the issuing of the injunction. For instance, the injunction issued in this case has been granted to preserve property, the title of w'hich is pending in another .court. This tribunal will watch the conduct of the parties, and continue or dissolve the injunction, as the justice of the case may demand. If the conduct of the complainants be such as to intimate a desire to delay or post- pone the trial of the title, this court would, upon motion, dis- solve the injunction and dismiss the bill. If, on the other hand, the conduct of the complainant be such as evinces a desire to go to prompt trial of the title, the injunction would be continued until the determination of the title by the courts to which it was confided by law. If that determination be in favor of defendants, a dissolution of the injunction would be decreed, and the bill dismissed. If in favor of complainants, it is unnecessary to prejudge the action of the court. Hut the result must be, in one event, to decree a per})etual injunction; and in another, to dissolve the injunction, restoring the parties to their former relative })osition and respective rights, the court having accomplished its ol)ject — the preservation of the property pending the dispute. Whether a ))erj)etual injunction be granted or the bill dismissed, the decree will be final on the onl}^ issue of which this court has jurisdiction. ■40 EQUITY PLEADING. U[)()ii the ground, then, tliat the court has no jurisdiction to try title, and that it would be the assertion on its ])art of the right to do so if this application were granted; that the evidence as to title cannot be used in this court, — this tribunal, in the exercise of the discretion re[)0sed in it, as con- trolled by the usages and principles of a court of chancery, is constrained to deny the present motion. But there is another aspect in which tliis case must be viewed, and which must also control the discretion of the court. Whatever may be the legal effect of the adjudications of the tribunals to whoni the question of title is confided by law, u])on the rights of third [)arties, who luive conflicting claims to the property disputed, and who were not parties to the })roceedings in those tribunals, there can be little doubt, that, as between the claimants under the act of March 3, 1851 (9 Statutes U. S., 631), and the government of the United States, the provisions of that law cannot be disregarded by this court. By that act, congress prescribed the agencies, manner, and conditions on which the government consented to be sued, and through which, in which, and upon which, they would surrender the legal title which had become vested in them l)y the treaty of Guadalupe Hidalgo, to such as estab- lished a better title, in accordance with the provisions of that law. By it that body delegated to certain special tribunals the adjudication of title, and limited the manner in which they were enabled to act, taking every precaution by the provisions of the law to guard against fraud and imposture. The power of this court, as one of chancery, to grant injunction, and the application by the United States for such [)rocess, gives no additional jurisdiction to this court, nor confers power, beyond that which it has exercised as a court of equity, to preserve the substance of tlie property. To grant this application would (to use the language of the chancellor in Nicolls v. Martin, 3 Simons, 455, as we have seen) be in effect saying, that this court has jurisdiction to try title, and, consequently, to give relief if decided in favor of the defendants. Was it within the }^ower of congress to pass the act of 3d March, 1851, or is it in conflict with any clause in the con- stitution of the United States? In the case of West /'. Coch- r;m, 17 How., 415, the supreme court of the United States enunciate the following principles: " It was also competent for UXITKI) STATKS V. I'AltKoTT. il congress to provide that, helore a litlc .-liould he liivcii In any one, the exact limits of" his possession, and thi- title which the United States was to give, should he 'ddineth ami thai this should he done hy such agencies, and in such manner, as might he fixed by congress. This is in entire accordance with the provisions of the treaty, which guarantees to the inhabitants the rights of projierly secured to them; but it was not intended to provide for the particular modes and instru- mentalities by which such rights should be ascertained and enforced, — these being left to the nation to whose powers they were confided; so that tlie question is: What has congress deemed expedient ? Now, to ascertain what has been done in this case, we must look to the act of congress passed March 3, 1851 (9 Statutes at Large, 631), entitled "An act to ascertain and settle the private land claims in the state of California." By it, they have confined exclusively to certain tribunals the adjudication of title, with specially delegated powers, and which, not being courts of general jurisdiction, can exercise none not expressly granted, or directly and necessarily derived by implication. So far from conferring authority upon them to send process to a foreign country to procure testimony, a power exercised by courts of general equity powers, as we have seen, with great caution, congress have excluded a conclusion that any sucli power can exist, by enacting that " no deposition taken by or in behalf of any such claimant shall l)e received in any case, whether before the commissioners, or before the district or supreme court of the United States, unless notice of the time and i)lace of tak- ing the same shall have been given in writing to said agent, or to the district attorney of the proper district, so long before the time of taking the deposition as to enable him to be present at the time and place of taking the same; and like notice shall be given of the time and ])lace of taking any ■deposition of the part of the United States." The introduc- tion of this clause into the act is a clear expression of the determination of congress, when they gave their consent that the government should be sued, that her rights were not to be affected by any de{)osition or testimony in writing, save such as had been taken in the presence of their agent, or of the district attorney of the proper district. Now, that clause in the law may have been " gross injus- 42 EQUITY PLEADING. tice " or " oppression," and a refusal on the part of the present administration to amend the huv mas' be an " iniquitous attempt to suppress the means of truth," as zealously urged by one of the solicitors of those who are making this applica- tion. Congress may, however, have been impelled by what they deemed legitimate and prudent precaution to shield the rights of the government from the dangei's of testimony taken in a foreign country, among a people who had just ceased to be avowed enemies of this country, without the checks and sanctions thrown around the proceedings by the presence of the agent of this government, and by the execution of the commission before an American functionary. The present administration may have been actuated by the same motives in refusing to amend the said act as has been urged. The general rule is, however, " that if the motive and design of an act may be traced to an honest and legitimate source, equally as to a corrupt one, the former ought to be preferred." Arredondo's Case, 6 Pet., 716. But with the motives of the govei-nment which passed the law, or the present administration, which, it is urged, has declined to aid in its repeal, this court has nothing to do. Such legislation, if it be as represented, does not conflict with the constitution of the United States ; and the highest tribunal in our country has decided that it is competent for congress to regulate the manner and agencies by which the title of claimants to lands shall be ascertained, and that such legislation does not violate any rights intended to be secured by the treaty. The conclu- sions to which the court has come are : 1st. That an application for the appointment of commis- sioners to take testimony abroad is not grantable of course ; but it is addressed to the judicial discretion which is controlled by the usages and rules of chancery practice, in accordance with which the present motion cannot be granted. 2d. The act of Sd- March, 1851 (0 Statutes, c. 31), cannot be disregarded ; and this court ought not to violate the spirit and policy of that act by granting its process to take testimony abroad, to be used in the trial of title in this cause. The motion, therefore, must be denied. FITCH V. CEEIGHTON. (24 Howard, 159-164. 1860.) Opinion by Mr. Justice McLean. Statement of P^acts. — This is an appeal from the circuit FITCH V. CHKIGHTON. 1.'^ court of tlie ruitcd States for llu> northern district of Ohio. The bill was filed by luhvard C'reier pi-o- cecding, to come in and share in the benefit of the litigation. West i'. Randall, 2 Mason, ISl ; \\'ood v. Dummer, '-l Mason, 317; Story's Ecp PL, supra. The next objection which we have to eonsider is, that the sureties of the administrator are not proi)er parties to this suit. Their liability on the bond in an action at law is not denied, but it is insisted they cannot be sued in e(iuity. If this doctrine were to prevail, a court of cliancery, in the exercise of its power to compel an administrator to account for the property of his intestate, would be unable to do com- plete justice, for if, on settlement of the accounts, a balance should be found due the estate, the "parties in interest, in case the administrator should fail to pay, would be turned over to a court of law, to renew the litigation with his sureties. A court of equity does not act in this way. It disposes of a case so as to end litigation, not to foster it ; to diminish suits, not to multiplv them. Having power to determine the liability of the administrator for his tnisconduct, it necessarily has an equal power, in order to meet the })ossible exigency oi the ad- ministrator's inability to satisfy the decree, to settle the amount which the sureties on tlie bond, in that event, would have to pay. Besides, it is for the interest of the sureties that they should be joined in the suit with their princijial, as it enal)les them to see that the accounts are correctly settled, and the administra- tor's liability fixed on a ])roper basis. If they were not })arties, considering the nature and extent of their obligati(jn, they would have just cause of (;om]»laint. It is said the bill is multifarious, but we eaniiot see any ground for sucli an objection. A bill cannot be said to 1)0 multifarious unless it embraces di.stinct matters which do not affect all the defendants alike. This case involves but a single matter, and that is the true condition of the estate of Fielding Curtis, which, when ascertained, will determine the rights of the next of kin. In this investigation all the defendants are jointly interested. It is true the bill seeks to oj>en the settle- ments with the probate court as fraudulent, and to cancel the 54 EQUITY I'LEADING. receipt and transfer from the complainant to the administra- tor because obtained by false representation ; but the deter- mination of these questions is necessary to arrive at the proper value of the estate, and in their determination the sureties are concerned, for the very object of the bond which the}'' gave was to protect the estate against frauds which the administra- tor might commit to its prejudice. The decree of the circuit court for the district of Missouri is reversed, and this cause is remanded to that court with instruc- tions to proceed in conformity with this opinion. CHAPTER U. THE BILL, ITS FORM AND REQUISITES. Rufe t>0. Every bill, in the introductory part thereof, shall contain the names, places of abode, and citizensliip of all the parties, plaintiffs and defendants, by and against whom the bill is brought. The form, in substance, shall be as follows : "To the judges of the circuit court of the United States for the district of : A. B., of , and a citizen of the State of , , brings this his bill against C. D., of , and a citizen of the State of , and E. F., of , and a citizen of the State of . And thereupon your orator coni})lains and says that," &c. liule 21. The plaintiff, in his bill, shall be at liberty to omit, at his option, the part which is usually called the common confed- eracy clause of the bill, averring a confederacy between the defendants to injure or defraud the plaintiff'; also what is commonly called the charging part of the bill, setting forth the matters or excuses which the defendant is sui)posed to intend to set up by way of defense to the bill ; also what is commonly called the jurisdiction clause of the bill, that the acts complained of are contrary to equity, and that the de- fendant is without any remedy at law, and the bill shall not be demurrable therefor. And the plaintiff' may, in the narra- tive or stating part of his bill, state and avoid, by counter- averments, at his option, any matter or thing wliich lie sup- poses will be insisted uj^on by the defendant by way of defense or excuse to the case made by the plaintiff foi" i-elicf The (55) 56 KQLITY PLEADING. prayer of the bill shall ask the special relief to which the plaintiff supposes himself entitled, and also shall contain a pruyer for general relief; and if an injunction, or a writ of ne exeat regno, or any other special order, pending the suit, is required, it shall also be specially asked for. Hide 22. If any persons, other than those named as defendants in the bill, shall appear to be necessar}' or proper parties ^lereto, the bill shall aver the reason why they are not made parties, by showing them to be without the jurisdiction of the court, or that they cannot be joined without ousting the jurisdiction of the court as to the other })arties. And as to persons who are without the jurisdiction and may properly be made parties, the bill ma}^ pray that process may issue to make them parties to the bill if they should come within the jurisdiction. Huh' 43. 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 following : "To the end, therefore, that the said defendants may, if they can, show why your orator should not have the relief hereby prayed, and may, upon their several and respective corporal oaths, and according to the best and utmost of their several and respective knowledge, remembrance, information, and belief, full, true, direct, and perfect answers make to such of the several interrogatories hereinafter numbered and set forth, as by the note hereunder M^ritten they are respectively required to answer ; that is to say — " 1. Whether, &c. " 2. Whether, &c." Hide 94. Ever}^ bill brought by one or more stockholders in a corpo- ralion against the corporation and other parties, founded on TIIK I'.II.I. ITS I'oKM AM) I; lii^ I I>1TKS. ■>/ rights wliicli may j)i'(»]i(.'i-ly bo assorted l»y llio ('(irpnialion, must 1)0 voiilio(i by oath, and must oontaiu an allouation that the plaintitl' was a sbai'cboldor at tbo timo of ibo tfansaction of which he complains, or that his shaio had dovolvod on liim since by O])eration of law, and that the suit is not a collusive one to confoi- on a court of the I'nitod States jurisdiction of a case of which it would not otherwise have cognizance. It must also set forth with particularity the eilbrts of the plainti^ to secure such action as he desires on the j)art of the managing directors or trustees, and, if necessary, of the share- holders, and the causes of his fjiilure to obtain sucli action. The follou'ing provisions relating to equity practice are to be found in the Act of 1st of June, 1872 : Sec. 7. That whenever notice is given of a motion for an injunction out of a circuit or district court of the b iiited States, the court or judge thereof may, if there appear to be danger of irreparable injury from delay, grant an order re- straining the act sought to be enjoined until the decision upon the motion. Such order may be granted with or without security, in the discretion of the court or judge: Provided, That no justice of the Supreme Court shall hear or allow any application for an injunction or restraining order except within the circuit to which he is allotted, and in causes pending in the circuit to which he is allotted, or in such causes at such place outside of the circuit as the ]»arties may in writing sti])- ulate, except in causes where such a]>})lication cannot 1)0 heard by the circuit judge of the circuit, or the disti'ict judge of the district. Sj:c. V-\. That when in any suit in equity, commenced in any court in the United States, to enforce any legal or equit- able lien or claim against real or personal ])roperty within Ihi' di.sti'ict wIkmo such suit is brought, one oi- niorc^ of tlu^ di'lend- ants therein shall not be an inhabitant of or found within the said disli-ict, oi- shall not voluntarily aji]>ear therc^to, it shall 58 EQUITY PLEADING. be lawful for the court to make an order directing such absent defendant to appear, plead, answer, or demur to the complain- ant's bill at a certain day therein to be designated, which order shall be served on such absent defendant, if practicable, wherever found ; or where such personal service is not prac- ticable, such order shall be published in such manner as t!ie court shall direct ; and in case such absent defendant shall not appear, plead, answer, or demur within the time so limited, or within some further time to be allowed by the court, in its discretion, and upon proof of the service or publication of said order, and of the performance of the directions contained in the same, it shall be lawful for the court to entertain jurisdic- tion, and proceed to the hearing and adjudication of such suit in the same manner as if such absent defendant had been served with process within the said district; but such adjudi- cation shall, as regards such absent defendant without appear- ance, affect his property within such district only. Hide 23. The prayer for process of subpoena in the bill shall contain the names of all the defendants named in the introductory part of the bill, and if any of them are known to be infants under age, or otherwise under guardianship, shall state the fact, so that the court may take order thereon, as justice may require upon the return of the process. If an injunction, or a writ of ne exeat re(/no, or any other special order, pending the suit, is asked for in the prayer for relief, that shall be sufficient, without repeating the same in the prayer for process. Biilc 42. The note at tlie foot of the bill, specifying the interroga- tories which each defendant is required to answer, shall be considered and treated as 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 bill is filed, shall be considered and treated as an amendment of the bill. HARRISON V. NIXON. o!) Whenever, under these rules, an oal^h is or may be required to be taken, the party may, if eonscientiously scrupulous of taking an oath, in lieu thereof make solemn affirmation to the truth of the facts stated by him. liule *4. Every bill shall contain the signature of counsel aimexed to it, which shall be considered as an affirmation on his j)art that, upon the instructions given to him and the case laid before him, there is good ground for the suit, in the manner in which it is framed. HA RKISOX r. NIXON. (9 Peters, 483-540. 1835.) Opinion by Mr. Justice Story. Statement of Facts. — This is the case of an appeal from a decree of the circuit court of the district of Pennsylvania in a suit in equity. The bill was filed by Samuel Packer, and asserts that one Matthias Aspden, a citizen of Pennsylvania, made his will, dated in Philadelphia on the 6th of December, 1791; and thereby bequeathed all his estate, real and personal, to his heir at law, and afterwards died in August, 1824 ; and his will was proved and letters testamentary were taken out in Pennsylvania by the appellee, under which he has received large sums of money ; and the bill then asks for a decree in favor of Packer, who asserts himself to be the true and only heir at law of Matthias Aspden, and that he is solely entitled under the bequest. The answer of the executor states, fi'om information and belief, that the testator was born in Pliihi- delphia, which was the residence of his parents, about 1750; that he continued to reside there, doing business as a mer- chant with some* success, before he was twenty-one years of age; that before the breaking out of the war between Great Britain and America in 177G, being still a minor, he went to England, with wliat view the executor is notj from his own knowledge, able to say, but he believes that he went with an impression that the power of Great liritain must soon prevail in putting down resistance in America; that the testator sub- sequently came several times to the United Sfntos, and in- 60 EQUITY I'Li:ADIN(i. vested large sums in goveiiuiieiit stocks and other securities; but whether after so returning to the United States the testator ■went back to England as his home, or only for the purpose of superintending his property, and whether the testator did in fact change his domicile, the executor (save and except as ap- pears from the facts) doth not know, and is unable to answer; but he believes that the testator, when in England, considered hnnself as an alien, etc.; and he died in King street, Holborn, London. The answ^er also states that the executor proved the will and took out letters testamentary in England; and states certain proceedings had upon a bill in chancery in England by one John Aspden there, claiming to be the heir at law of the testator ; and annexes to his answer a copy of the bill. He also alleges that several other persons have made claims to the same property as next of kin of the testator, of whose names, etc., he annexes a schedule. Various proceedings were had in the circuit court of Penn- sylvania, and a reference was made to a master to examine and state who were all the heirs and next of kin of the tes- tator. The master made a report, which was afterwards con- firmed, and thereupon a final decree was made by the court in favor of John Aspden, of Lancashire, in England, one of the persons who made claim before the master, as entitled as heir at law to the personal estate in the hands of the executor, and the claims of the other persons claiming as heirs at law were dismissed ; and the present appeal has been taken by several of these claimants. The cause having come before this court for argument upon the merits, a question occurred whether the frame of the bill, taken by itself, or taken in con- nection with the answer, contained sufficient matter upon which the court could proceed to dispose of the merits of the cause and make a final decision. The bill contains no averment of the actual domicile of the testator at the time of the making of his will, or at the time of his death, or at any intermediate period. Nor does the answer contain any averments of domicile which suppl}' these defects in the bill, even if it could .so do, as we are of opinion, in point of law, it could not. Every l)ill iiuist contain in it.self sufficient matters of fact, per sc, to maintain the case of the iJaintiff, so that the same may be put in issue by ihe answer and established by the ])roofs. The ])roofs must be according to the allegations of the jKii'ties, and if the proofs HAKIMSON \-. NIXON. (\] go to matters iidt witliiii llir allcuatioiis the court cannot judicially act u[)on them as a iiround lor its decision, fur I lie pleadings do not put them in contestirtioii. The alUynfa and the probata must reciprocally meet and conform to each other. The case cited at the bar of Matthew v. Ilanbury, 2 Vern., 187, does not in any manner contradict this doctrine. The proofs there offered were founded upon allegations in the bill, and went directly to overthrow the ccmsideration of the bonds set uj) in the answer, in opposition to the allegations of the bill, the latter having asserted that the bonds were obtained by threats and undue means, and not for any real debt or other good consideration. Is, then, any averment of the actual domicile of the testator, under the circumstances of the present case, proper and necessary to be made in the bill, in order to enable the court to come to a final decision upon the merits? AVe think that it is, for the reasons which will be presently stated. The point was never brought before the circuit court for consideration, and, consequently, was not acted on by that court. It did not attract attention (at least, as far as we know), on either side, in the argument there made, and it was probably passed over (as we all know matters of a similar nature are everywhere else) from the mutual understanding that the merits were to be tried, and without any minute inquiry whether the merits were fully spread upon the record. It is undoubtedly an inconvenience that the mistake has occurred ; but we do not see how the court can on this ac- count dispense with what in their judgment the law will otherwise require. The present is the case of a will, and, so far at least as the matter of the bill is concerned, is exclusively confined to per- sonalty bequeathed by that will. And the court ai'e called upon to give a construction to the terms of a will, and in an especial manner to ascertain who is meant l)y the words " heir at law " in the leading bequest in the will. The language of wills is not of universal interpretation, having the same i)re- cise import in all countries and under all circumstances. They are supposed to speak the sense of the testator according to the received laws or u.sages of the country where he is domiciled, by a sort of tacit reference, unless there is some- thing in the language which repels or controls such a con- clusion. In regard to })crsonalty in an especial manner, the 62 EQUITY PLEADING. law of the place of the testator's domicile governs in the dis- tribution thereof, and will govern in the interpretation of wills thereof, unless it is manifest that the testator had the laws of some other countr}'' in his own view. No one can doubt if a testator, born and domiciled in Eng- land during his whole life, should by his will give his per- sonal estate to his heir at law, that the descriptio jjersonaz would have reference to and be governed by the import of the terms in the sense of the laws of England. The import of them might be very different if the testator were born and domiciled in France, in Louisiana, in Pennsylvania or in Massachusetts. In short, a will of personalty speaks according to the laws of the testator's domicile, where there are no other circumstances to control their application ; and to raise the question what the testator means, v.'e must first ascertain what was his domi- cile, and whether he had reference to the laws of that place or to the laws of any foreign country. Now the very gist of the present controversy turns upon the point who were the person or persons intended to be designated by the testator under the appellation of " heir at law." If, at the time of making his will and at his death, he was domiciled in England and had a reference to its laws, the designation might indicate a very different person or persons from what might be the case (we do not say what is the case) if, at the time of making his will and of his death, he was domiciled in Penns3'lvania. In order to raise the question of the true interpretation and designation, it seems to us indispensable that the country by whose laws his will is to be interpreted should be first ascer- tained, and then the inquiry is naturally presented what the provisions of those laws are. If this be the true posture of the present case, then the bill should allege all the material facts upon which the plaintiff's title depends ; and the final judgment of the court must be given so as to put them in contestation in a proper and regular manner. And we do not perceive how the court can dispose of this cause without ascertaining where the testator's domicile was at the time of his making his will and at the time of his death ; and if so, then there ought to be suitable averments in the bill to put these matters in issue. In order to avoid any misconception, it is proper to state that we do not mean in this stage of the cause to express any opinion what would be the effect upon the interpretation of jONKs V. ANi)i;i;\\s. ' 03 t]ie will it' \\\o domicik' of llic testator was in one country at the time of his making his will, and in another country at the time of his death. 'J'his j)oint may wv^ll he left open for future consideration. But being- of opinion that an averment of the testator's domicile is indis[)ensab]e in the bill, we think the case ouglit to be remanded to the circuit court for the j)urji()se of having suitable amendments ma(h> in this ])articular; and that it will be jjroper to aver the domicile at the time of mak- ing the will and at the time of the death of the testator, and during the intermediate period (if there be any change), so that the elements of a full decision may be finally brought l)efore the court. The petitions of the claimants should contain similar averments. It appears from the motions wliicli have been made to this court, as well as from certain ])roceedings in the court below, which have been laid before us in support thereof, that there are certain claimants of this becjuest, asserting themselves to be heirs at law, whose claims have not been adjiidicated upon in the court below on account of their having been presented at" too late a period. As the cause is to go back again for further proceedings, and must be again opened there tor new allega- tions and proofs, these claimants will have a full opportunity of presenting and proving their claims in the cause ; and we are of opinion they ought to be let into the cause for this pur- pose. In drawing u|) the decree remanding the cau.se, leave will be given to them accordingly. The decree of the circuit court is therefore reversed, and the cause is remanded to the circuit court for further proceedings in conformity to this opinion. Mr. Justice Baldwin dissented. JONES r. ANDREWS. ( 10 Wallace, 327-334. 1 870. ) xA.ppEAL from U. S. Circuit Court, Western District of Ten- nessee. Statement of Facts. — Andrews leased a hotel in Mem- phis to Reed & Bryson, taking their notes for the rent. These sublet to Jones, taking his notes for the rent. The rent not being paid, Andrews, in the absence of Jones, took ])Osse.ssion of the hotel, and recovered judgment in the court below against Reed & Bryson on their notes, and garnished tlie notes of Jones. Jones then filed a bill in the same court for an 64 EQUITY PLEADING. injunction, describing the citizenship of the parties in the caption and in the })rayer, averring Andrews to be a citizen of New York and Reed & Bryson to be residents of Tennessee. Andrews was not served with process, but came in and moved that the bill be dismissed for want of jurisdiction and for want of equity. Opinion by Mr. Justice Bradley. On the question of jurisdiction over the parties, the appel- lees contend : 1st. That the citizenship of the parties was not sufficiently alleged in the bill. 2d. That, if suflficiently alleged, the court had no jurisdiction over Andrews, the prin- cipal defendant, who was a citizen of New York, and not a citizen of Tennessee, where the suit was brought. Although the allegation of citizenship is not made in pre- cise and technical form, we consider it sufficiently explicit to sustain the jurisdiction of the court, if the citizenship disclosed by the allegation does not displace that jurisdiction. It is more explicit than the allegation in the case of Express Com- pany V. Kountze, 8 Wall., 342, which was sustained by the court. All that is necessary is, that it fairly appear by the bill of what states the respective parties are citizens. In this case the form of the allegations leaves no room for reasonable doubt. The other exce})tion, that Andrews, the principal defendant, was not a citizen of the state where the suit was brought, is entitled to more weight. Though the constitution declares that the judicial power of the federal government shall extend to controversies between citizens of different states, which would embrace the case before us (the plaintiff being a citizen of Georgia, and Andrews a citizen of New York), yet congress has not established any court, except the circuit court, to take cognizance of such cases ; and, by the judiciar}^ act of 1789, which establishes that court, congress only invested it with jurisdiction of cases where the suit is between a citizen of the state where the suit is brought, and a citizen of another state (section 11), and moreover declared that no civil suit should be brought before said court against an inhabitant of the United States, by any original process, in any other district than that whereof he is an inhabitant, or in which he shall be found at the time of serving the writ. The case is certainly not within the purview of this statute. The suit is brought in west Tennessee, and neither .Jones, the complainant, nor JONKS V. ANDKKWS. 05 Andrews, the deieiulaiit, is a eitizeii of (hat state. I)i'si(h's, the suit is brought against An(h\'\vs in a (Hstriet of which he is not an inhabitant, and in wliieh h6 was not Ibiind at iho time of serving the writ. Under the act of 178*J, and tlie ruhng of the early cases, the court woukl, prima facie, be without jurisdiction. According to those cases tlie phiintitr, or each of the plaintiffs, if more than one, must be able to sue each of the defendants, if more than one. But the act of February 28, 1831), by imi)lication, confers jurisdiction over non-residents of the district where the suit is brought, if they voluntarily appear therein. The suit can proceed against them if they voluntarily appear, or without them if they are not necessary parties. If, however, they are necessary parties, and do not voluntarily appear, thedifKcuUy remains the same as before the act of 1839 was passed. Tobin V. Walkinshaw, 1 jNIcAL, 2(). In this case Andrews ivas a necessary party, and he was not a resident of the district, and was not served with process, but he did voluntarily appear. It is true that as soon as he appeared, he moved a dismissal of the bill on two grounds: (1) That it did not show such facts in regard to the citizenship or residence of the defendants as to give the court jurisdiction. (2) That it contained no equity. Whether, if he had made the motion on the first ground alone, he would have waived his personal exemption, it is not necessary to decide. His moving to dismiss for want of equity was clearly a waiver; and he was proi)erly required to answer the bill. After this the question of jurisdiction over the person was at an end, and the decree of the circuit court, dismissing the bill for want of jurisdiction, must be reversed. But the ease is stronger than this. The jurisdiction of the court did not depend on the residence or citizcnshij) of the parties. The suit is, in its nature, not an original but a defensive or supplementary suit, like a cross-bill, or a bill filed to enjoin a judgment of the same court. The bill is filed for an injunction against the garnishment proceedings under the suit at law for the delivery up of the com})lainant's notes, and for the establishment of his set-off against Andrews. This is, in substance, its character, and if the facts charged furnish a sufficient ground of equity for the relief asked, as to which the court refrains from expressing any opinion, the complainant had a right to file it against the defendants, and 5 66 EQUITY PLEADING. the court had a right to take cognizance of it as a defensive or supplementary proceeding, growing out of and having direct reference to the proceedings of the defendants in the same court against him. The case, in this respect, as before said, is analogous to that of a cross-bill or bill of review, or a bill for injunction against a judgment at law in the same court, of which the court has jurisdiction irrespective of the residence of the parties. Logan v. Patrick, 5 Cranch, 288 ; Simms v. Guthrie, 9 id., 25 ; Clarke v. Mathewson, 12 Pet., 164; Dunlap I'. Stetson, 4 Mason, 349. As to bills for injunction against judgments at law rendered in the same court. Justice Story, in Dunlap v. Stetson, says : "I believe the general, if not universal, practice has been to consider bills of injunction upon judgments in the circuit courts of the United States, not as original, but as auxiliary and dependent suits, and properly sustainable in that court which gave the original judgment, and has it completely under its control. The court itself possesses a power over its own judgments by sta3'ing execution thereon; and it would be very inconvenient if it did not possess the means of rendering such further redress as equity and good conscience required." Let the decree of the circuit court be reversed, and the cause remitted for further proceedings, each party to pay his own costs on this appeal. Decree accordingly. DES MOINES & MINNEAPOLIS KAILEOAD COMPANY v. ALLEY. (Circuit Court for Iowa : 3 McCrary' 589-591. 1882.) Opinion by McCrary, J. Statement of Facts. — This is a suit brought to set aside a deed executed by the complainant to the respondent, John B. Alley, on the 23d of May, 1879, conveying two thousand three hundred and sixty-two acres of land. The amended bill charges that, at the time of said conveyance, the respondent, John B. Alley, was the owner of the majority of the stock of the corporation, and by reason of that ownership exercised a controlling influence over the officers and directors of the com- plainant corporation, whereby he induced the board of direc- tors and the president of the corporation to consent to the said conveyance, and to execute a deed good and sufficient in form. It is further alleged that the said respondent, John B. Alley, fraudulently procured and caused said conversance to be I DES MOINES & MINNEAPOLIS KAILKOAD CO. V. ALLEY. 67 executed. With respect to the coiisidcTation j)ai(l hy tlie said Alley for said conveyance, there are two allegations in the amended bill as follo\v.s : It is first alleged " That, in truth and in fact, the said defendant did not })aY anything whatever for said lands; that the books of said company were then under his charge and control, and that he caused to be cliarged to himself, on account of said lands and said conveyance, the sum of $4,600, and over against said charge on said book he caused to be credited certain fraudulent entries." If the allegation stojjped here, it would amount to a charge that the conveyance was without any consideration wliatever, and would be entirely sufficient. But the bill further avers as follows: " That if, in truth and fact, it shall be made to ap})ear that any portion or all of said $4,600 was in any manner paid by the said Alley, by just and proper credits, then the said sum or price of said lands was, and is, grossly inadequate to its true value ; and the said defendant, by reason of his relationship to the said company plaintiff, and such inadequacy of price, is bound to surrender said lands to the plaintiff. That said lands were then worth, as. plaintiff is informed and believes, $10,000 and more, and have been since then steadily increas- ing in value ; and defendant well knew that said lands were worth much more than the sum of $4,600, and that they would greatly increase in value from that time forward." It is necessary that the several allegations of the amended bill should be harmonious and consistent with each other. The amended bill would be sufficient if it distinctly alleged either of three things, to wit: 1. That the conveyance was wholly without consideration ; or 2. That it was fraudulent, and there was a consideration, which the complainant has offered to return to the respondent John B. Alley ; or 3. That complainant is not informed, and has no means of ascertaining, whether there was a consideration, or what the value of the consideration was, if there was any, and that these facts are peculiarly within the knowledge of the defendant, John B. Alley. If the case is placed upon the latter ground, then the amended bill should pray a discovery of the facts, and should offer to return any consideration actually paid, to the respond- ent John B. Alley, as soon as the same is ascertained and determined by the court. It will be seen that it is necessary to amend the bill in order to conform to the.se suggestions. 68 EQUITY PLEADING. The allegation concerning the value of the land should also be made specific. It is not sufficient to state fiiat the com- plainant believes the land to be worth $10,000. In these respects, and to this extent, the demurrer is sustained, and the complainant has leave to amend by the February rules, and will serve a copy of his amendment upon the counsel for respondent. FINLEY V. BANK OF THE UNITED STATES. (11 Wheaton, 304-308. 1826.) Opinion by Marshall, C. J. Statement of Facts. — This is a bill in chancery, brought by the Bank of the United States against James Finley to obtain a decree for tlie sale of property mortgaged for the security of a debt due the bank. The mortgage deed was executed on the 28th of September, 1822, and contains a recital of debts due to the bank to the amount of |6,240, on account of which a note was executed on that day to the bank for that sum, payable sixty days after date. At the November term of the circuit court of the United States for the district of Kentucky the bill was filed, stating the consent of the mortgagor to an immediate sale of the mortgaged property, although the day of payment was not arrived ; and on the same day an answer was filed consenting to a decree for the sale. A decree was immediately entered by consent of parties directing the marshal to sell the prop- erij. The court then proceeds to direct the marshal, after deducting the expenses of sale, his commission and the costs, to pay the bank the sum of $6,240, with interest from the date of the note. The sale was made in pursuance of the decree, and the report thereof was returned to the court by the marshal. At the succeeding term William Coleman filed his petition, stating, among other things, that he held a prior mortgage on the same lands, and praying that he might be made a party defendant to the suit. His petition was rejected, and he prayed an appeal to this court, which has been dismissed as irregularly granted. After dismissing this petition the circuit court pronounced a decree afiiirming the sale made by the marshal, and directing the credit to which Finley should be entitled for the money paid out of its proceeds to the bank. This decree also considers the debt due to the bank as amount- ing to $6,240, with interest from date of the note. FINLEY V. HANK OF THE UNITED STATES. 09 The mortgage to Coleman is tiled, and ap[)ears to be dated three days anterior to that made to the bank. A suit to obtain a sale of the premises was instituted in the state court in March, 1823, and was depending when the final decree was pronounced at the suit of the bank. After the linal decree had been pronounced, Finley filed a petition praying that the sale and decree might be set aside ; alleging, among other reasons therefor, that Coleman, the prior mortgagee, had not been made a l)arty, althongli the existence of his mortgage was known to the bank. The prayer of the petition was rejected, and Finley has appealed to this court. The counsel for the plaintiff in error insists that this decree ought to be reversed, because it was pronounced in a case in which proper parties were not before the court. It cannot be doubted that Coleman ought regularly to have been a party defendant, and that, had the existence of his mortgage been known to the court, no decree ought to have been })ronounced in the cause until he was iiitroduced into it. But this fact was kept out of view until the decree was pro- nounced, the sale made, the money paid to the creditor, and the rei)ort of his proceedings returned by the marshal. If the manner in which the sale was made and tlie money dii'ccted to be paid be unusual and exceptionable, it was done by con- sent, and the error is not imputable to the court. The only question presented to the judges by this j)etiti()n was whether a decree, completely executed by a sale of the property and payment of the purchase money, sliould be set aside and the suit reinstated, for the purpose of introducing a party who ought regularly to have been an original defendant, but who was not shown, by any proceedings in the cause, con- cerned in interest until the decree was made and executed. There would, certainly, be great inconvenience in such a practice; and, if it be admissible in any case, on wliich the court gives no opinion, it must be where the mi.schief resultiug from a rejection of the petition would be iri'eniediable. This is not shown to be a case of that description. Coleman's mortgage cannot be affected by this decree. II is rights can- not be extinguished by it. His suit in the state court will proceed as if this decree had never been pronounced. The purchasers under the decree of tlie circuit court take the land suijject to prior incumbrances, and have, ])i'oba]>ly, taken this 70 EQUITY PLEADING. incumbrance into consideration in the price given for the land. But, be this as it may, they do not complain or object to their purchase in consequence of the cloud hanging over the title. Coleman's rights cannot be affected ; and if Finley has suffered by selling his land subject to a lien, it is an injury which he has knowingly brought upon himself. This is not, then, a case for such an extraordinary measure as opening a decree made by consent, after it has been carried into execution, on the petition of the party who has given that consent. We do not think the decree is erroneous because the prior mortgagee was not made a defendant, that fact not having appeared to the court until the decree was completely executed. But in the disposition of the money produced by the sale a small mistake a})pears to have been made. There were some previous debts due from Finley to the bank, amounting to $6,240, which appear to have been absorbed in the note given for that sum, on the 28th of September, 1822, payable sixty days after date, to secure the payment of which the mortgage deed was executed. If this note carried interest from its date, that fact does not appear, and cannot be presumed. The mortgage deed does not purport to secure the payment of such interest. Yet the decree of the circuit court subjects the mort- gaged property to its payment. This error ought to be cor- rected, and may yet be corrected in the circuit court. It does not affect the sale. In all other respects the decree is to be affirmed. VOSE V. BRONSON. (6 Wallace, 452-456. 1867. ) Appeal from U. S. Circuit Court, District of Wisconsin. Statement of Facts. — The La Crosse & Milwaukee Rail- road Company issued bonds to the amount of $4,000,000, and gave a mortgage which was foreclosed. The bonds having been sold at heavy discounts were scaled down, and no more being allowed to the bondholders than the company received for them, a margin remained. Vose, who had sold material to the company and taken bonds at eighty cents on the dollar, with an understanding that if bonds should be sold at a lower rate he should have the benefit of the reduction, intervened by a bill in equity, claiming the benefit of that agreement and to have his demand satisfied out of the margin. The bill was dismissed. VOSK V. BKONSOX. 71 Opinion by Mk. Justick Davis. The question presented by this record is of easy sokition. If Vose had brought suit against the La Crosse & Milwaukee Railroad Company for a breach of tlieir contract, the inter- pretation of it would have been a })roper subject of in([uiry, but the decision of this case does not de})end on the disposi- tion of that question. The appellant places his claim for relief on his right to have an outstanding equity with the La Crosse Company adjusted in the foreclosure suit, and his demand attached to the foot of the mortgage. To do this there must be a power somewhere to eidarge the mortgage, and where is it lodged? Certainly not with the trustees, for their duty is to see that the security lield by them for their cestui que trusts is enforced according to the terms of the deed. They could neither enlarge the mortgage nor consent to its enlargement. The court could not do it, nor the La Crosse . ... A Company, as it had covenanted with the trustees, in behalf of the bondholders, tiiat it would only issue $4,000,000 in bonds. The rights of the bondholders were fixed by the terms of the mortgage. The value of the bonds as an investment de- pended in a great measure on the number to be issued, and doubtless each purchaser, before he bought, had inibrmation of the character of the security on which he relied. The property might be very well a safe security for $4,000,000, and very unsafe for any additional amount. The doctrine contended for would utterly destroy the "marketable value of all corporate securities. No prudent man would ever buy a b®nd in the market, if the |)rovisions made for its ultimate redemption could be altered without his consent. But it is said, as the court rendered a decrees for less than the face of the bonds, equity will stej) in and allow the appellant to apply the vacuum of principal .secured by the mortgage to liquidate his claim. The answer to this is, that it does not concern the ap})ellant whether the court rightfully or otherwise reduced a portion of the bonds. The bond- holders, whose bonds were thus reduced, are the only parties in interest who could have any just cause of complaint against the action of the court, and if- they did not feel aggrieved no other person has any right to com])lain. The securit}' of the mortgage extended to four millions of bonds onl}', and what- ever amount the court should ascertain was due on those four millions was the amount secured, and no more. 72 EQUITY PLEADING. If Vose had been made a party defendant to the foreclosure suit, the decree would have been the same. But he was not a necessary party to tliat suit. The trustees, as the representa- tives of all the bondholders, acted for him as well as the others. It would be impracticable to make the bondholders parties in a suit to foreclose a railroad mortgage, and there is no rule in equity which requires it to be done. Decree affirmed. JACKSON V. ASHTON. (8 Peters, 148-149. 1834.) AppExVI. from U. S. Circuit Court, District of Pennsylvania. • Statement of Facts. — In the caption of the l)ill in this case the complainants were described as citizens of Virginia, and the defendant as a citizen of Pennsylvania. In the bill it was alleged that the complainants were citizens of Virginia, but the defendant was described as " William E. Ashton, of the city of Philadelphia." Opinion by Marshall, C. J. The title or caption of the bill is no part of the bill, and does not remove the objection to the defects in the pleadings. The bill and proceeding should state the citizenship of the parties, to give the court jurisdiction of the case. The only difficulty which could arise to the dismissal of the bill presents itself upon the statement " that the defendant is of Philadelphia." This, it might be answered, shows that he is a citizen of Pennsylvania. U this were a new question, the court might decide otherwise ; but the decision of the court, in cases which have heretofore been before it, has been express upon the i)oint ; and the bill must be dismissed for want of jurisdiction. WILSON V. GRAHAM. (Circuit Court for Pennsylvania : 4 Washington, 53-59. 1821.) Statement of Facts. — This was a libel to enforce against Graham a decree rendered in Rhode Island against a box of silk, etc., condemned as prize, which, it was asserted, had come to the hands of Graham. Graham i)leaded that he had never been summoned to appear in the Rhode Island court ; that he was not a citizen of that state, nor had he been found within it. Plaintiff demurred to this plea. The libel was filed in the district court and aj)penled from Si pro forma decree. WILSON V. (IKAIIA.M. 73 Opinion by Washington, J. This case turns exclusively upon the (picstion wiielher the circuit court for the disti-ict of Rhode, Island had jurisdiction in the case wherein tiie decree which this libel seeks to enforce was made? If it had, then it is clearly conclusive uj)on this couit, and it must be carried'into efl'ect against (Jraham. If there was a def{>ct of juristliction in that case, it is admitted by the appellant's counsel that the decree ought not to bo en- forced by this court. In the case Ex parte Graham [4 Wash., 211], which termi- nated in the discharge of the appellee from arrest, under the process of attachment issued by the circuit court of Khode Island in this very case, the following points were resolved : 1. That the federal circuit and district courts of one state have no authority to issue process into aii}^ other state to compel an appearance in those courts, whether in a matter at common law, in equity, or of prize or no prize. 2. That the jurisdic- tion of those courts, though sitting in prize causes, is limited in point of locality by the bounds of their respective districts, except in a few cases particularly provided by law. 3. That it is essential to the jurisdiction of those courts that the person or tiling, against which the proceedings are directed, should be within their local jurisdiction ; except in the latter case, when the thing is considered as being constructively within their jurisdiction ; as where it is in possession of the captors, though in a neutral country. 4. That if a prize proceeding be in- stituted against the person, the jurisdiction is excluded, unless it be in a court of the district whereof the person is an inhabi- tant, or in which he is found at the time of serving the process. If these principles be correct (and after an attentive recon- sideration of them we think they are), it follows that the cir- cuit court of Rhode Island had no original jurisdiction over the person of Peter Graham, because the process of that court ■could not legally issue into this district, and be here served upon him; nor was it served upon him in that district; he was not bound to appear and to make himself a party to the suit. Can he, then, be personally bound by a sentence given in a suit in which he was not a party, nor was heard, or could be heard, in his defense? Such a doctrine cannot, we think, be maintained. It is repugnant to the immutable dictates of justice as well as to the express provisions of the eleventh ^section of the judicial act, whirli pi'ovides " that no 74 EQUITY PLEADING. civil suit sluill be brouglit before either of the said courts against an inhabitant of tlie United States by any original process in any other district than that whereof he is an in- habitant or in which he shall be found at the time of serving the writ." For. if the court can exercise jurisdiction in a case and over a person who has not and could not be legally served witli its process, the above provision was quite nuga- tory, and afibrded no protection to those for wlioni it was designed. We liave no doubt but that the learned judge who passed that decree, jjresuming tliat, in respect to the process, all had been rightfully done (for Graham had no person to represent him in court and to j)l!ice that matter in its true light), had no reason to question his jurisdiction. I admit that that court had unquestionable jurisdiction over the box of merchandise alleged to be in the possession of Graham, and as to that or its proceeds the sentence of that court is conclusive, not only as to its correctness, but as to everything which it professes to decide. And this court would not hesitate to execute that decree against the appellee were a proper application made for that purpose, and if it appeared in proof that he had or has the thing or its proceeds in his pos- session. As to the thing, Graham and all other persons claim- ing an interest in it, either on the ground of property or of possession, were parties to that suit, and were reju'esented in court by the thing which was the subject of the court's juris- diction, although they were never served with process nor had even heard of the suit. It is upon this ground that the res or its proceeds may be followed by the decree of this court into the hands of any person who may have the same in his pos- session, and who is personally within its jurisdiction. But whether the appellee has, or ever had, in his possession the merchandise mentioned in the decree, or its proceeds, is a fact which this court cannot consider as established by the decree of the circuit court of Rhode Island, inasmuch as the appellee was no part}'^ to that suit. It is contended that the decree against Graham was not founded on original process, but was merely an incident to the original suit, in which the box of merchandise was condemned to the captors. This is not quite correct, since the sentence against Graham was not for the thing condemned or its pro- ceeds, but for a gross sum. But were it otherwise, still the suit against Graham was an original one, in which the ques- WILSON V. GliAHAM. /5 tion to lie decided was not whetlur the goods were legjilly condemned to the captors, but whether they had come to tlie hands of the person against whom the suit was prosecuted. And this is the very question which, for (he reasons before mentioned, that court was incompetent to decide. At every turn that this case is presented to our view, it is met by the objection that the circuit court of Rhode Island had not cogni- zance of the matter upon wliich its sentence was founded. Again, it is said that, as tlie libel in this ca.se setting forth the sentence of condemnation, as well as the decree in jier- sonani against Ciraham, and the plea, by avoiding the chaige of possession, and merely alleging matter in bar of the relief prayed, admits the fact that the appellee was so possessed, there can be no solid rea.son why tlie court should not now execute that decree. The conclusion of the counsel is clearly drawn from mistaken premises. The libel sets forth no pait of the proceedings of the Rhode Island court but the com- plaint of Wilson, supported by proof that the box of merchan- dise imported in the Francis, and condemned as lawful prize to the captors, was delivered by mistake to Stewart, the pro- ceedings against him, the suggestion and proof that the said merchandise, or the proceeds thereof, came to the hands of Graham, and the process against him, followed up by the decree to pay $2,000 into the registry of that court, and the execution founded thereon returned unsatisfied. The prayer of the libel is that the said decree against P. Graham may be carried into execution by a decree of this court. It is mani- fest, therefore, that, although the sentence of condemnation is mentioned, it is merely by way of recital in the complaint of Wilson against Stewart ; that the only decrees set forth in this libel are those against Stewart and Graham ; and that the latter is the only one which the libel prays the aid of this court to execute. Now it is perfectly clear that, according to the practice of the court, where a specific relief is asked for, even although there be a prayer for general relief (which there is not in this case), the court cannot grant a relief which is inconsistent with or entirely different from that which is asked for. Much less can the court, in a case where the libel seeks execution of a decree which is specially set forth, execute a different decree, which is not even stated in the libel as an existing and final decree. If the practice were otherwise, it would be not only 76 EQUITY PLEADING. unnecessary to state the relief which is desired, but it would be mischievous to do so, as it could only serve to deceive the other side. Neither is it correct to say that the plea, by not denying possession of the merchandise, admits it. In the first place, that fact is not charged in the libel, nor is it proved by the decree, for tlie reasons before mentioned. And even if it were charged, still it must have been upon the conclusive effect of the decree, from which the respondent could, in no other way, have extricated himself but by showing that the court which pronounced it had not jurisdiction in the case. I will not say that the respondent in the district court might not have stated all the matter of the plea in an answer, and also have denied the fact of possession. But then the latter part of his defense would have been merely gratuitous, and not being responsive to the libel in that respect, it could not have availed him. It is, after all, to be remarked that the respondent is never bound to reserve to the final hearing any matter which amounts to a bar to -the relief prayed, but may by a plea demand the judgment of the court upon such matter, so as to save the expense of a general examination. The decree of the district court must be affirmed, with costs. CHAPTER III. OF THE PARTIES. liiile 48. Where the parties on either side are very numerous, and cannot, without manifest inconvenience and oppressive delays in the suit, be all brought before it, the court in its discretion ma}' dispense with making all of them parties, and may pro- ceed in the suit, liaving sufficient parties before it to represent all the adverse interest of the plaintiffs and the defendants in the suit properly before it. But, in such cases, the decree shall be without [)rejudice to the rights and claims of all the absent parties. Rule 49. In all suits concerning real estate wliich is vested in trustees by devise, and such trustees are competent to sell and give discharges for the proceeds of the sale, and for the rents and profits of the estate, such trustees shall represent the persons beneficially interested in the estate, or the proceeds, or tlie rents and profits, in the same manner and to the same extent as the executors or administrators in suits concerning personal estate represent the persons beneficially interested in such per- sonal estate ; and in such cases it shall not be necessary to make the persons beneficially interested in such real estates, or rents and profits, })arties to the suit ; but the court may, u|)on con- sideration of the matter on the hearing, if it shall so think tit, order such persons to be made parties. liufe .^O. 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 plaintiffs shall (77) 78 EQUITY PLEADING. be at liberty to make the heir at law a party where he desires to have the will established against him. Bule 51. In all cases in which the plaintiff has a joint and several demand against several persons, either as principals or sure- ties, it shall not be necessary to bring before the court as par- ties to a suit concerning such demand all the persons liable thereto; but the plaintiff may proceed against one or more of the persons severally liable. Bnle 54. Where no account, payment, conveyance, or other direct relief is sought against a party to a suit, not being an infant, the party, upon service of the subpoena upon him, need not appear and answer the bill, unless the plaintiff specially requires him so to do by the prayer of his bill; but he may appear and answer at his option; and if he does not appear and answer he shall be bound by all the proceedings in the cause. If the plaintiff shall require him to appear and answer he shall be entitled to the costs of all the proceedings against him unless the court shall otherwise direct. Ittde S7. Guardians ad litem to defend a suit may be appointed by the court, or by any judge thereof, for infants or other persons who are under guardianship, or otherwise incapable to sue for themselves. All infants and other persons so incapable may sue by their guardians, if any, or by their prochein ami ; sub- ject, however, to such orders as the court maj direct for the protection of infants and other persons. TOBIN V. WALKINSriAW. (Circuit Court for California : 1 McAllister, 26-47. 1855.) Opinion by McAllister, J. StatExMent of Facts. — Among the numerous questions which have been submitted during the argument of this TOBIN V. WALKINSIIAW. 79 motion there is one wliicli arrests attention in limine, and, in the view 1 have taken ot" the case, will preclude a decision on any other. That question is one of jurisdiction. In advance of any discassion on this point I desire to advert to a question which was argued incidentally by the solicitors for the respect- ive parties. 1 allude to the question, "How far is matter of avoidance in tui answer to be treated as evidence by the court?" An examination of the authorities has conducted me to the conclusion that the rule is that upon the hearini:;, after the answer is put in issue, new matter set up by way of avoidance must be proved by defendant; but that on a motion for or on a motion to dissolve an injunction such new matter in the answer responsive to the bill is to be deemed evidence in favor of defendant, as his afllidavit or sworn state- ment. As this opinion is necessarily very extended on what I deem the principal point in the decision of this motion, my reasons for the conclusion to which I have come in relation to the question of new matter in the answer will be reserved for some future case or occasion. In regard to the want of parties in this case, which gives rise to the question of jurisdiction, it has been urged by complainants that it is too late for defendants to object a want of parties, and that this was matter only for a plea in abatement. Now, a plea for want of parties is not matter for abatement. It is a plea in bar and goes to the whole bill, as well to the discovery as to the relief prayed. 1 Daniell's Ch. Pr., 337. Again, the rule is that if want of parties is apparent on the face of the bill, the defect may be taken advantage of by de- murrer. If such defect be vital, it may be insisted on at the hearing, and if the court proceed to a decree, such decree may be reversed. If the defect is not apparent on the bill, it may be propounded by way of a plea, or it may be relied on in a general answer. Story's Eq. PI., § 236. In Van Epps v. Van Deusen, 4 Paige's Ch., 75, it is said defendant is not bound to demur or plead. Pie may make the objection in his answer, and may liave the same benefit of the objection at the hearing as if it had been taken l)v {>lea or demurrer. The thirty-ninth rule of equity expressly gives the right to defendant to avail in his answer of anything which would 80 EQUITY PLEADING. be good ill the form of a plea in bar ; and the fifty-second rule provides that where defendant by his answer suggests the want of parties, plaintiff shall be at liberty, within fourteen days after answer filed, to set down the cause for argument upon that objection alone. These rules evidently authorize a party to avail himself of a defect for want of parties as effect- ually in his answer as by plea in bar. Had defendants availed themselves of the right to j)lead in bar much time and discussion would have been saved. But they have the right to bring forward their objection in the form of an answer. Having done so, I am called on to decide if there are such parties before the court as will authorize it to adjudicate upon this cause, whether this court be deemed a court of general equity jurisprudence or whether the peculiar structure of the limited jurisdiction of this court under the constitution and laws of the United States be considered. In (Aameron v. McRoberts, 3 Wheat., 591, where the citizen- ship of the other defendants than Cameron did not appear on the record, the supreme court of the United States certified : " If a joint interest vested in Cameron and the other defend- ants, the court had no jurisdiction over the cause. If a dis- tinct interest vested in Cameron, so tliat substantial justice (so far as he was interested) could be done without affecting the other defendants, the jurisdiction of the court might be exer- cised as to him alone." In Mallow v. Hinde, 12 Wheat., 194, the principle is affirmed that, thougli the rules as to parties in equity are somewhat flexible, yet, where the court can make no decree between the parties before it upon their own rights which are independent of the rights of those not before it, it will not act. The court say : AVe do not put it " on the ground of jurisdiction, but upon a much broader ground, which must equally appl}' to all courts of equity, whatever be their structure as to jurisdiction." In Russell v. Clarke's Executors, 7 Cranch, 98, the court say that merely formal parties might be dispensed with ; but where parties are essential to the merits of the question, and may be much affected by the decree, such parties are indis- pensable. The principle enunciated by the supreme court in the foregoing cases is a reiteration of one universally recog- nized in equity jurisprudence. Story's Ecp PI., § 137. The rule in equity differs from the rule of law, both in the necessity of joining all interested parties in the suit and in the TOBIN V. W .\I.KINS]I.\\V. 81 option (»!' jdiiiiiijj,' tlunii ;is plaiiiliU's (ir (Iclc'iidaiits. At law a disputed issue is alone contested, the innnediatc disputants are alone l)Ound by the decision, and they'alone aii- })atti('s to the a'^ition. In equity a decree is asked, and not a decision only ; and it is therefore requisite that all persons should In- hel'ore the court whose interests may be aflected by the pi'ojxiscd decree or whose concurrence is necessary to a complete arrangement. Adams' Equity, 099, 703, 704. The act of congress of February 28, 1839 (5 Laws U. S., 321), and the forty-seventh equity rule of this court, have been cited by complainant's solicitors and relied on to sustain the jurisdiction in this case. They have also adduced the case of Dorenius and Nixon v. Bennett and others, 4 McLean, 224, as to the interpretation of the act of congress. That was a case at law. Now it is true that by their provisions the circuit courts of the United States are authorized, in certain cases, to proceed against one or more defendants in the ab- sence of others, where such others are not inhabitants of or found in the district when and where the suit is brought. But both the act of congress and the forty-seventh rule have been elaborately considered and the construction of them tixed by the supreme court of the United States in the recent case of Shields v. Barrow, 17 Howard, 130. In that case it is settled that neither the act of congress nor the rule impinges on the general doctrine, and that if the citizenship of })arties be such that their joinder would defeat the jui'isdiction of the court, such fact will not supersede the necessity of making them parties ; so far as the said act and rule ap[)ly to suits in equity, it is to be understood they are no more than the legislative affirmance of the rule previously established b}^ the adjudications of the supreme court of the United States. The act of congi'css removed any difficulty as to jurisdiction be- tween parties who are competent under the general rule of equity jurisprudence ; and the fort3'-seventh rule of practice is only a declaration, for the government of practitioners and courts, of the effect of the act of congress and the previous decisions of the supreme court. " It remains," say the court, that a circuit court "can make no decree between the parties before it, which so far involves or depends upon tlu^ rights of an absent person that complete and final justice cannot be done between the parties to the suit without affecting those rights." 17 Howard,- 141. 6 S2 EQUITY PLEADING. The general rule as to the parties to a bill is not, then, altered by the act of congress and the equity rule cited by the solicitors for complainants ; nor is that rule affected by the limited jurisdiction of the courts of the United States. The fact that a person is without the reach of the process of the court will not dispense with the necessity of making such per- son a party, provided he be an indispensable one. Parties to bills are divided into three classes (17 How., 139) : 1. Nominal. 2. Necessary. 3. Indispensable. If a nominal party be beyond the reach of the process of the court, being a party having no interest to be affected by the proposed decree, that fact cannot defeat the jurisdiction of the court. An in- stance of this class of parties is where one is joined as a party for sake of conformity in the bill, having no interest, legal or •equitable, to be affected by the decree. The second class, known as necessary parties, are such as have an interest in the controversy, and ought to be made parties to enable the court to do complete justice by adjusting all tlie rights involved ; still, if their interests are separable from those before the court, they are not indispensable parties. Mr. Justice Curtis has referred, as an instance of a necessary part}--, to the case of Osborn v. The Bank of the United States, 9 Wheat., 738. This case has been cited by the solicitors for complainants as the strongest case ; and in their written brief upon the point under consideration, they say : " This [case] seems to us conclusive as to the rule in a case of trespass." It is due to the able counsel and the importance of the question that proper con- sideration be paid to this case. We shall give it that consid- eration hereafter. The third class of cases enumerated by Mr. Justice Curtis are the indispensable, who have such an interest in the con- troversy that a decree cannot be made without affecting that interest; and the inquiry is, Do the pleadings in this case dis- close the fact that there are absent persons whose interests make them indispensable parties? The rule we are consider- ing laid down generally is that, where the rights of an absent person will be much affected by the decree asked for, the ■court cannot proceed to a decree. This general rule is to be applied to the circumstances of each case as they shall arise. By ascertaining how this rule has been applied in precedent >cases, we will understand how to apply it to the case at bar. In Mallow v. Hinde, 12 Wheat., 194, the complaint set up TOBIN V. WALKINSHAW. S3 a claim to a tract oi' land iiiider a survev, No. ool , in the name of John Camphell, who, by hi.s will, devised and be- queathed this, among other munimeiits of title, to Richard 'J'aylor and others, executors, in trust for the children of his sister. Taylor alone qualified and took upon himself the execution of the trust. He never assigned or conveyed to the cestui que trusts, but permitted them to take the management of the claim into their own hands. Subsequently, when these last had arrived at full age, they entered into contracts with one Elias Langham, Avhereby he became entitled to survey No. 537 and he subsequently conveyed the land to complain- ants. Thus stood the case when the defendant Hinde, with full knowledge of the rights of complainant, procured from Taylor a military warrant belonging to him (Taylor) in his own right, made an entry thereof in his (Hinde's) right, and, having caused a survey to be made thereupon covering survey No. 537, obtained a patent for the land. Having thus got the legal title he instituted actions of ejectment against the com- plainants, and obtained judgments of eviction against them. A bill setting forth the whole transaction, charging notice of complainants' rights, and gross fraud against defendant, was filed, which prayed for an injunction to enjoin defendant from proceeding on his judgments, and for general relief Here was as tortious an act and as great fraud as could be per- petrated under the forms of law, charged upon defendant. The defendant denied all fraud, set np the bona fides of the transaction, neither admitted nor denied the contracts between the cestui que trusts and Langham, and insisted if there were any such they were fraudulent. Neither Taylor nor the cestui que trusts were made parties, being out of the jurisdiction of the court. An objection for want of parties arose, and it was insisted that both Taylor and the cestui que trusts were indis- pensable parties. The court so decided. They .say : " The complainants claim through certain contracts made between Langham and the cestui que triists. How can a court of equity decide that such contracts ought to be decreed specifically without having the parties before them? Such a proceeding would be contrary to all rules which govern a court of equity, and against the principles of natural justice.'' In respect to Taylor it was urged that he had ))arted with his " incidental right ;" but the court determined that he and the cestui que trusts were indis- 84 EQUITY PLEADING. pensable parties. " If," says the supreme court, " the United States courts were courts of general jurisdiction, it could not be doubted that the absent persons would be indispensable pai'ties." But it is urged that the rule which ])revails in courts of equity generally, that all the parties in interest shall be brought before the court, etc., ought not to be adopted by the courts of the United States, because, from the peculiar structure of their limited jurisdiction over persons, the ap[)li- cation of the rule in its full extent would often oust the court of its acknowledged jurisdiction over the persons and subject before it. In answer to such argument the court proceeds to show that no modification of the rule to an extent by which the riglits of an absent person may be materially affected is admissible, and concludes by saying : " We put this case on the ground that no court of ecpiity can adjudicate directly upon a person's rights without the party being actually or constructively before the court;" and the bill was found de- fective for want of parties. In Brookes v. Burt, 1 Beav., 106 ; 17 Eng. Ch. Rep., 106, a bill was brought by one tenant in common against defendant, who, it was alleged, had wrongfully, and in defiance of com- plainants' title, entered into possession and received the rents and profits of the property ; it was further alleged that com- plainants had commenced an action of ejectment for the premises, which defendant defended ; that before the trial of such ejectment plaintiffs discovered that the property was subject to an ■ outstanding term which was vested in one Mr. Worsley, which defendant threatened to set up to defeat the action at law ; and lastly, the bill alleged that James Wavel, the co-tenant in common with plaintiffe, was at the time re- siding out of the jurisdiction of the court. (It should be observed here that tlie objection was that the co-tenant in common was not made a party complainant.) There was a general demurrer for want of equity, on the ground that Wavel, the co-tenant, and Worsley, in whom the outstanding term was vested, were indispensable parties to the bill. The court decided that the holder of the outstanding term was not, but that the co-tenant was. On the argument it was urged, in relation to Wavel, that he was part owner of the property ; that among other things prayed for was a declaration of right, the delivery of the title deeds of the property, and for an account of the rents and profits, matters in which the TOBIN V. WALKINSIIAW. 85 absent party was interested, and that therefore the suit which sought to deal witli the inheritance was defective I'or want of parties. To this com})hunants replied tliat the proposition embodied in the objection was that if there be twenty tenants in common, and a stranger gets possession, one of the tenants in common cannot recover the possession of the rents and profits from the stranger without making the other nineteen persons with whom he had no dispute parties to the suit ; that this was an ejectment bill and must be governed by the same rules as an ejectment at law ; that Wavel, the co-tenant, was out of the jurisdiction of the court. Lastly it was urged that the complainants were entitled to some i:)ortion of the relief prayed for, and, at the time of the hearing, they might waive part of the relief sought and obtain the rest ; that the de- murrer, therefore, covered too much and must be overruled. Such were the arguments by complainants in that case, and they are similar to those urged in this case by complainants' solicitors. To all the master of the rolls replied : " It appears to me this demurrer must be allowed. . . . Where the de- murrer is for want of parties, it is not sutKcient ibr tlie plain- tiffs to say that there is some part of the relief which can be abandoned at the hearing. . . . The bill prays for accounts and the delivery up of title deeds. ... 1 conceive Wavel is a necessary party. . . . The demurrer must be allowed." 1 Beavan, 111. In Turner v. Hill, 11 Simons, 1, a bill was filed to compel defendant to ti'ansfer her share in a mine to complainant, which it was alleged .she had obtained by fraudulent means, and to account for and pay to plaintiff the protits thereof, and that a receiver might be appointed of the })rofits of the mines. It was objected that the other adventurers in the mine were indispensable parties, inasmuch as an account was called for ; and the vice-chancellor decided against the objection on the sole ground that the bill did not call for an account of the mine, but for that of the specific share sued for. He says, " Thai passiige in the prayer of the bill which asks for a re- ceiver of the profits of the whole mines is clearly a mistake, for the plaintiff is seeking, by his bill, to recover no more than a hundredtli share of the mines ; and therefore, in connnon fairness of construction, that passage ought to be referred to the profits of that share." Con.sidering .such to Ik; the fair con.struction of the bill, he decided it was unneces.sary lo make the othei' shareholders })arties. 86 EQUITY PLEADING. A similar decision, for the same reasons, was made in the case of Turner v. Borlase, 11 Simons, 17, and appeal was carried to the lord chancellor (11 Simons, 18), and the decision in it confirmed, the distinction drawn between a prayer for the profits of the mine and those of the particular share sued for being carefully sustained. In giving his decision on the appeal the chancellor said, " It was, however, observed that the bill prayed a receiver of the profits arising from the said mines; and if that must necessarily be intended to mean the general profits of the mines, it would be asking for that which could not be granted, in the absence of all the other adventur- ers ; but I do not understand the expression to have that meaning. All the case made and all the relief asked relate to the particular shares," etc., " and I must understand the profits as to which the receiver is asked to be the profits spoken of, which makes the whole consistent, and for winch purpose the other adventurers would not be necessary parties." 11 Simons, 20. The decision of the court below was therefore affirmed, and the demurrer overruled; but the chancellor, in conclusion, declared that his judgment on the demurrer was on the facts admitted by it ; but if the facts at the hearing so admitted were not sustained, the opinion he had just delivered could have no bearing on the case. The principles deducible from foregoing authorities are: 1. That the general rule in equity is that all persons whose interest may be materially affected by a decree must be before the court to enable it to act. 2. That this rule may be relaxed so as to dispense with formal, and, under special circumstances, with necessary parties. 3. That the rule which has been announced by the deci- sions of the supreme court of the United States is but a reitera- tion of the doctrine of a court of equity in the application of its chancer}^ jurisdiction. 4. That the act of congress of February 28, 1839, and the forty-seventh rule of equit}^, which allow one or more defend- ants to be sued in the absence of others without the jurisdic- tion of the court, apply onl}' to competent parties, are simply an affirmance of previous decisions of the supreme court of the United States, and do not vary the rule as to indispensable parties. 17 How., 141. TOBIN V. WALKIXSIIAW. 87 5. That the peculiar structure of the limited jurisdiction of the courts of the United States does not abolish or modify the rule as to indispensable parties ; and 'the fact that such are without the jurisdiction will not enable the court to proceed against the parties before it. G. That it has been decided by the supreme court of the United States (12 Wheaton, 194) that where complainant seeks to set aside a frnudulent purchase of land by defendant, and to enjoin his proceeding on a judgment he had obtained in an ejectment at law against comphunant, the party through whom the latter claimed his equitable title was an indispen- sable party. 7. That it has been decided in the English chancery (1 Beavan, 106) that one tenant in common cannot, without joining with him his co-tenant, sustain a bill in equity against the trespasser in possession, and enjoin him from setting up an outstanding term, inasmuch as the bill prayed for the delivery of title deeds and account of the rents, these being^ matters in which the absent person was interested, and was therefore an indispensable party ; that where a question arises as to parties, it is not for the complainant to say the court must proceed to a hearing when he (complainant) may dis- claim a part of the relief and obtain the balance ; and lastly, that the fact that the absent party resided out of the jurisdic- tion of the court made no difference in the application of the rule. These last principles are deducible from the case of Brookes v. Burt, 1 Beavan, 106. It is to be again noted that this was a case brought by one tenant in common to assert a right against a wrong-doer ; and the absent tenant in common was deemed an indispensable party. How much stronger is the case at bar, where it sought to injuriously affect the rights of part owners who are absent! If, in the former case, the person is deemed an indispensable party, a fortiori he must be so deemed in the latter. 8. That it has been decided that where a bill is filled to compel defendant to transfer to comj^lainant a share in a mine fraudulently obtained by him, and to account for the profits thereof, jurisdiction will be sustained on the ground that the bill seeks only a specific share in the profits thereof; but it is expressly affirmed that if the bill had sought for a delivery of title papers, which touches the inheritance, or for an account of the mines, these being matters in which the other iu^ven- 88 EQUITY PLEADING. tureis ill the mine were interested, the court could not proceed, such other adventurers being indispensable parties. Let us apply these principles to the case at bar. The com- plainants in their bill allege title to certain premises situated in this state; that defendants have wrongfully entered into possession thereof, and are committing a trespass thereon by cutting down timber and excavating mines or minerals there- from, and that they (the complainants) have instituted an action of ejectment against the defendants for the purpose of evicting thein therefrom. The bill prays against defendants: 1. That an account be taken for the year preceding the fil- ing of the bill of the amount of timber cut and destroyed on the premises, and a similar account of the quicksilver so taken. 2. That injunction may issue to restrain defendants from further trespass. 3. That a receiver be appointed to take charge of the mine and the reducing establishment connected therewith, and all the products thereof, now within the jurisdiction of this court. 4. That on the final hearing the conveyances made, under which defendants claim title, may be ordered to be delivered up and canceled, the 'injunction made perpetual, and for gen- eral relief An answer has been filed, and the facts necessary to be looked to in connection to the question as to parties are found in pages 43, 44 and 45. The facts disclosed are that there are proprietors of the mine and land other than defendants. That of them, four in number, viz., Eustaquio Barron, Eustachio M. Barron, Mai-tin La Piedra and Maria Oritz, are without the jurisdiction of this court; that John Parrott and .James K. Bolton are also co-owners of the premises, and that they are within the reach of the process of the court. It is further averred that long before the institution of the action of eject- ment at law, and before the exhibiting of the bill, a contract was entered into by the owners of the mine with certain per- sons for the working of them ; and it is contended that both the proprietors and contractors should be made parties. Upon the authority of the cases cited above I cannot doubt tliat the owners are indispensable parties in this case. In tlie opinion of the court the authority of cases is hardly ih'cded. What is the character of this bill? It does not seek the TOni.N V. W Al.K INSIIAW. t>5) intei'pDsition of (his court to recover the sj)eeitie shar<'s of the mine or land and the jjrofits thei-euf, proi)erty of the defend- ants. If it (hd it would come within iho authorities and the limits of natural justice. I>ut the hill asks that an account of profits belonging toother people, and title deeds to i)roperiy in which those other and absent iiei.son.s are as much interested and to a larger extent than the defendants thom.selves, shall be canceled. It furtljer asks that the profits of all the owners should be wrested from them and paid into the hands of a receiver. Now, can this court call for an account of the profits of the mine or arrest such profits, or direct a cancellation and delivery of the title deeds, in the absence of parties both within and without the reach of its process who are interested in those profits and those title deeds ? Were the court to do any one of these things would not the rights of the absent owners be materially alfected ? It is urged that the court can entertain jurisdiction of this case, issue the injunction and wait until the hearing, when the complainant may wai.ve a portion of the relief j)rayed for, and the court can decree so much of that relief as they may be entitled to. This course M'ould be con- trar}'^ to authority, and in violation of the reason of the thing. We have seen that the lord chancellor has said in Brookes v. Burt that when the question of parties arises it is not sufficient for the complainant to say "that there is some part of the relief which can be abandoned at the hearing." Again, apart from authority, on what ground of justice or reason can this court arrest, by injunction, the profits of the mine from absent persons until tlie hearing, for the purjiose of ultimately getting an account from the defendants of their s[)ecific interests? Would the arrest of these profits " affect " the interest of the absent owners? If so, should a court of equity proceed in their absence? "Audi alteram partem'' is alike a dictate of natural justice and a i)rece|)t of nHinici|)al law. I liave searched in vain for a pi'ecedent that would justify tliis course. The able counsel for complainants would have found such if any existed. The case of Osborn v. The Bank of the I'nited States has been adduced as the authority which seems to them conclusive in favor of such jurisdiction ; and it has l)een intimated to me })y one of the counsel that it has been exhibited to several of his professional brethren, who concur in tlie opinion that it is conclusive on the ]')oint. That case, therefore, claims attention. 90 EQUITY PLKADIXG. The opinion in tliat case occujncs scvent,y-six pages of the Reporter. To show what were the points decided, by travel- ing through it, would be time misspent. But there is a short method of" doing tliis, and one, j)ei'haps, which will conduct to a more correct conclusion than any this court could pursue. By reference to the j^rospectus, published by Mr. Justice Curtis in 17 Howard, it will be found that liis {)lan in giving his new edition of the Supreme Court Reports was to endeavor ta give, in tlie head-notes, tlie substance of each decision. They are designed, he says, to show the points decided by the court, not the dicta or reasonings of the court. Now, upon reference to his headnotes to Osborn v. The Bank of the United States, we find that the only points which, in his o})inion, were de- cided in that case which touch the c^uestion under considera- tion are: 1. A court of equity may restrain, by injunction, a public officer of a state from acting under a void law of a state to destroy a franchise. 2. As the state cannot be joined as a defendant, its agent may be sued alone ; and if he has specific moneys or notes wrongful!}^ taken in his possession, they may be ordered to be returned. So far as any decision in this case goes, it does not touch the case at bar. But reference has been had to certain observa- tions made by Chief Justice Marsliall, while delivering the opinion of the court, and citations from the opinion have been inserted in the brief of solicitors for complainants, which are deemed directly ai)[)licable to the case at bar. The first cita- tion is from 9 Wheaton, page 842, and is as follows: "The single act of levying the tax in the first instance is the cause of an action at law ; but that affords a remedy only for the single act, and is not equal to the remedy in chancery, which prevents the repetition and protects the privilege. The same conservative principle which induces the court to interpose its authority for the protection of exclusive privileges, to prevent the commission of waste, even in some cases of trespass, and many cases of destruction, will, we think, a])ply in this. In- deed, trespass is destruction where there is no privity of estate. If the state of Ohio could have been made a party defendant, it can scarcely be denied that this would l)e a strong case for an injunction. The objection is that, as the real party cannot be brought before the court, a suit cannot be maintained against the agents of that })arty ; and cases have been cited to show that a court of chancery will not make a decree unless TOBIN V. WALKINSIIAW. 91 all those who aiv substantially interested l)e made parties to the suit. This is certainly true where it is in tiie power of the plaintiff to make them parties; but if tlie person who is the real principal, the person who is the true source of the mis- chief, by whose power and for whose advantage it is done, be himself above the law, be exempt from all judicial i)rocess, it would be subversive of the best-established principles to say that the la\vs could not afford the same remedy ngainst the agent employed in doing the wrong which they would alford against liiin could his principal be joined in the suit. It is admitted that the privilege of the principal is not communi- cated to the agent ; for the appellants acknowledge that an action at law- would lie against the agent, in which 'full com- pen.sation ought to be made for the injury. It being admitted, then, that the agent is not privileged by his connection with his principal, that he is responsible for his own act to the full extent of the injury, why should not the preventive power of the court also be applied to him ? Why may it not restrain him from the commission of a wrong which it would punish him for committing? " The propositions asserted in the above observations are : 1. That though the single act of an illegal tax is the subject of an action at law, its repetition makes it a continuing tres- pass, which a court of ecpiity may enjoin. 2. That where the principle is exempt from all judicial pro- cess, being a sovereign state, the privilege which belongs to such princijial is not communicated to the agent who does the wrong. 3. That under such circumstances the court, acting on the principle, " Lex non cogit ad impossibilia," will, at instance of complainant, issue an injunction to restrain the agent from committing the tortious act. These propositions cannot control this axse : 1. Because there is no question of princijtnl luid jigcnt in this case. 2. The necessity of dispensing with a necessary party who was exem})t from judicial process does not exist in this case. (On page 846, C J. Marshall says, " Had it been in the power of complainant to make it [the state] a party, perhaps no de- cree ought to have been pronounced.") 3. Because the attempt in this case is to make defendants liable as principals in a tort, and asks the court to ai'rest the 92 EQUITY PLEADING. profits of absent parties for the purpose of making defendants responsible for the consequences of their own tortious act. There are two other citations from the opinions of the court. The first is a continuation of the first above quoted and is in these words : " We put out of view the character of the prin- cipal as a sovereign state, because that is made a distinct point, and consider the question singly as respects the want of parties." Here this second citation ceases, and another is taken from the succeeding page (844), as follows : "In the regular course of things the agent would pay over the. money immediately to his principal, and would thus place it beyond the reach of the injured part}^ since his principal is not amenable 'to the law. The remedy for the injury would be against the agent only, and what agent could make compen- sation for such an injury? The remedy would \iave nothing real in it. It would be a remedy in name only, not in sub- stance. This alone would, in our opinion, be a sufficient reason for a court of equity. The injury would in fact be irreparable ; and the cases are innumerable in wliich injunc- tions are awarded on this ground." Now, this latter citation establishes this proposition, viz.: That the agent would pay over to the principal, who was exempt from all judicial pro- cess, and, being unable to respond to the damages, the injury would be irreparable, and therefore is ground for injunction. To this extent it goes ; but the whole is dependent for its application upon the fact wiiether defendant is responsible upon an implied contract solely for the amount in his hands. This is evident, as the court puts the hypothesis. " Now, if the party before the court would be responsible for the whole injury," etc. To prove why the court considers the defendant liable, it is necessary to cite the remarks which intervene between the two quotations cited above : " Now, if the party," say the court, " would be responsible for the whole injury, why ma}'' he not be restrained, etc. The ai)pellants found their distinction on the legal principle that all trespasses are several as well as joint, without inquiring into the validity of this reason, if it be true. We ask if it be true? Will it be said that the ac- tion of trespass is the only remedy given for this injury ? Can it be denied that an action on the case for money had and received to the plaintiff's use might be maintained? We think it cannot ; and if such an action might be maintained, TOBIX \'. WAI.KINSMAW. :».■) no plausible ivasoii suggests itself to us tor llic (i|>iiii()ii tliat an injunction may not be awarded to restrain tlie agent witli as nuicli propriety as it miglit Ije aVv'arded to restrain tlie principal, could the principal be made a party." It was on the ground, then, that the equitable action for money had and received could be nudntained against the agent — lor money in his hands and received by him in legal consideration to the use of plaintiff — that C. J. Marshall uses the observations quoted to sustain the proposition that injunction might issue to restrain the payment over by the agent to his })rincipal. Can this apply to the case at bar? No one pretends that such action could lie against defendants in this case. Jn- dependently of all other views, there is one which covers this whole case and ])recludes the idea that it can control the one at bar. It has been shown that the absent parties are indis- pensable in this case. Such was not the fact in the case relied on. The state of Ohio was but a necessary party, and there was a discretion in the court to dispense with such party. True, the interest of the state, in (juantity, extended to the whole amount in controversy ; but what was the nature of that interest? It was not a vested nor an equitable interest. It was never in the possession of the absent i)arty, nor had the state an equitable right to it, for the court never could recog- nize, the po.ssession of a fund, or an equitable right to posses- sion in the principal, wdiere that fund has been raised in fraudem legis by the agent. The object of the bill was to arrest the fund in its transit from the agent to the princij)al. Hence the nature of the interest held by the state was, to use the language of Mr. Clay in his argument, " a collatei'al and contingent interest," which will not make a party who must be joined. Hence, again. Mi". Justice Curtis, in 1855, in the case of Shields v. Barrow, 17 How., 130, in his classification of parties, enumerates several instances of the diflerent kinds of parties, excluding the case of Osborn v. The Hank of the United States from the class of indispensable and including it among that of necessary parties, wdiich latter, as we have seen, may, under peculiar circumstances, be dispensed with. It is by attention to the distinction between necessary and indispensable parties that the numerous decisions of the courts, made in the application of the general rule, ma}' be harmon- ized. Cases have been referred to in which jjcrsons who are witli- 94 EQUITY PLEADING. out the reach of the process of the court have been dispensed with ; but in all such it will be found that the absent persons were either formal or necessar}^ parties, but not deemed indis- pensable. In this case I am satisfied that the owners of the mines are parties whose interests must necessarily be affected by any decree which can be made in conformity with the prayer of this bill. Cases are also cited to show that the courts of the United States will consider the rule as to parties flexible where the absent persons who should be made parties are out of the reach of the process of the court ; but in each of them it will be found that the utmost extent to which a relaxation has been carried has been to dispense with a necessary party onl3^ But there is one feature in this case which distin- guishes it from all others. It is that two of the absent per- sons whose interest would be affected by a decree are residents of this city and within the reach of the process of this court. The only reason for their omission as parties is the fact that their introduction would oust the jurisdiction of this court. But if bringing them before the court this case would be beyond its jurisdiction, can the court by indirection adjudi- cate upon their rights and thus do indirectly what it could not, rightfully, directl}' do? I think not. The present motion is therefore denied, and it is ordered accordingly. MORGAN V. MORGAN. (2 Wheaton. 290-302. 1817.) Appeal from U. S. Circuit Court, District of Kentucky. Opinion by Marshall, C. J. In this case two questions respecting the formal proceedings of the circuit court have been made by the counsel for the appellant. The first is, that one of the complainants in the original suit having settled in the state of Kentucky after this bill was filed, that court could no longer entertain jurisdiction of the cause and ought to have dismissed the bill. We are all of opinion that the jurisdiction having once vested was not divested by the change of residence of either of the parties. 2d. It appearing from the will that at its date the testator had a child who is not a party in this suit, the bill ought to be dismissed, or the decree opened and the cause sent back to ELMKNDOKF V. TAYI.OU. 05 make proper jmrties. It is unqiiesti()iial)lc (hat all the co-heii's of the deceased oiii;ht to be parties to this suit, either plaintitl' or defendant ; and a specific performance ought not to be decreed until they shall be all before the court. It wouhl, perhaps, be not enough to say that the child named in tlie will and not made a party is most ])robably (U'ad. In such a case as this, the fact of his death ought to be proved, not presumed. But as the opinion of the court on the merits of the cause will render it unnecessary to decide this question, it is thought best for the interest of all })arties to proceed to the consideration of another point which will finally tei'minate the contest, so far as it is to be determined in a court of equity. [Note. — Only so much of this case is reported as relates to Equity Pleading and Practice.] ELMEXDORF v. TAYLOR. (10 Wheaton, 152-177. 1825.) Appeal from U. S. Circuit Court, District of Kentucky. Opinion by Marshall, C. J. Statement of Facts. — This suit was brought by the ap- pellant, Elmendorf, in the court for the seventh circuit and district of Kentucky, to obtain a conveyance of lands held by the defendants under a prior grant, and under entries which are also older than the entry of the ])laintiff. As the defend- ants do not adduce their entries, and rely entirely on their patent, the case depends on the validity of the plaintiff's entry. That was made in April, 1784, and was afterwards, in July of the same year, explained, or amended, so as to read as follows : " Walker Daniel enters eight thousand acres, beginning at the most southwestwardly corner of Duncan Rose's survey of eight thousand acres between Floyd's Fork and Bull Skin ; thence along his westwardly line to the corner ; thence the same course with James Kem})'.^ line, north two degrees west, nine hundred and sixt3'-four poles to a survey of John Lewis for twenty-two thousand acres ; thence with Lewis' line, and from the beginning south seven degrees west, till a line parallel with the first line will include the quantity." As this entry begins at " the most southwestwardly corner of Duncan Rose's survey of eight thou.sand acres between Floyd's Fork and Bull Skin," the first inquiry is, whether this survey was at the time an object of sufficient notoriety to 96 EQUITY PLEADING. give validity to an entry calling for one of its corners as a beginning. It is not pretended that the survey itself had acquired this notoriety; but the plaintifi' contends that it had become a matter of record, and that subsequent purchasers were, on that account, bound to know its position, in like manner as they are bound to know the position of entries. The land law prescribes that surveys shall be returned to the office, and recorded in a record book, to be kept for that pur- pose by the principal surveyor, within three months from the time of their being made. They are to be returned to the land office in twelve months from their date, during which time the surveyor is forbidden to give a copy to any person other than the owner. It is contended by the defendants that this prohibition to give a copy of the plot and certificate of survey excludes the idea of that notoriety which is ascribed to a record. Though inserted for preservation in a book which is denominated a book of record, it does not become, in fact, a record until it shall partake of that characteristic quality of a record, on which the obligation to notice it is founded, being accessible to all the world. Were even an inspection of the book demandable as a matter of right, which the defendants deny, that inspection would, they say, from the nature of the thing, be of no avail, unless a copy was also attainable. They insist, therefore, that the notoriety of these surveys is not to be implied from the fact that the three months had expired during which they were directed by law to be recorded. The plaintiff contends that the book of surveys has every characteristic of a record except tliat the surveyor is restrained from granting copies until the time limited by law for the return of surveys to the land office shall have expired, and denies that the notoriety attached to a record is dependent entirely on the right to demand a copy of it. He maintains the right to inspect it, and insists that this right has been considered by the legislature as giving sufficient notice to all persons interested in the property to enter a caveat against the issuing of a patent, from which he implies that it is intended as a record to give notice, although a copy of it cannot be obtained. Were this question now for the first time to be decided, a considerable contrariety of opinion respecting it would prevail in the court; but it will be unnecessary to dis- cuss it. if the point shall appear to be settled in Kentucky. I i:r,Mi:Ni)()]{i' v. tavi.ih;. ;•/ Tliiy coui't lias uniformly jiroroscd its (lisptisilioii, in i-ascs de})c'nly with any of the particulars stated will be fatal unless cured by the voluntary appearance of the party. The doctrine of equity, when some of the parties are out of the jurisdiction of the court, is well stated by Mr. Justice Story in his Equity Pleadings, sees. 81, 82 and 83. After comment- ing upon the general rule that all persons legally or benefici- all}' interested in the subject-matter of a suit in equity should be made [)arties, and stating an exception with reference to persons without the jurisdiction, who cannot consequently be reached by the process of the court, the learned justice says : " It is an important qualification ingrafted on this particular exception that persons who are out of the jurisdiction, and are ordinarily proper and necessary parties, can be dispensed with only when their interests will not be prejudiced by the decree, and when they are not indispensable to the just ascertainment of the merits of the case before the court. The doctrine ordi- narily laid down on this point is that when the persons who are out of the jurisdiction are merely passive objects of the judgment of the court, or their rights are merely incidental to tliose of the parties before the court, then, inasmuch as a com- plete decree ma}' bo obtained without them, they may be dis- pensed with. But if such absent persons are to be active in the performance or execution of the decree, or if they have rights wholly distinct from those of the other parties, or if the decree ought to be pursued against them, then the court can- not pro])erly proceed to a determination of the whole cause with- out their being made parties. And under such circumstances, their being out of the jurisdiction constitutes no ground for proceeding to any decree against them or their rights or inter- ests ; but the suit, so far at least as their rights and interests are concerned, should be stayed ; for to this extent it is un- avoidably defective. In many instances the objection will be fa1:al to the whole suit." The case of a bill brought by one partner against several other copartners, one of whom was out of the jurisdiction. OKAY V. LAKKIMOKE. Kll praying for an account and dissolution of the coiiartncrsldp, is given by Story in illustration of this last position, that the objection will sometimes be fatal to'the whole suit, for "the absent partner," says the justice, "would have a distinct and independent interest, and would seem to be an indispensable party, since the decree must affect that interest, and, indeeil, would pervade the entire operations of the partnership." The case of Browne v. Blount, 2 Russ. & Mylne, 83, is also referred to as illustrating the same position. In that case a judgment creditor of one Blount had sued out a writ of elegit upon his judgment, and had filed his bill to reach certain real estates which were vested in trustees upon certain trusts, under which Blount was entitled to the rents and profits during his life. The trustees and certain parties interested under the trusts, and others having a charge upon the trust estates, were made parties, but Blount was abroad, and had been for years previ- ous to the institution of the suit, and was not, therefore, made a party. The court held that " Blount being the person whose interests were sought to be affected by the decree, the suit could not proceed in his absence." See in further illustration of the doctrine stated: Midford's Chan. PL, 31, 32; Inchiquin v. French, 1 Ambler, 33 ; Fell v. Brown, 2 Brown's Chan. Cas., 276; Beaumont v. Meredith, 3 Ves. & Beames, 180; Evans r. Stokes, 1 Keen, 32; Russell v. Clark's Executors, 7 Cranch, 98; Mallow V. Hinde, 12 Wheat., 194; Fuller v. Benjamin, 23 Me., 255; Sparr v. Scoville, 3 Cush., 578. In Evans v. Stokes the bill was filed to have the affairs of a joint-stock company, which was a co-partnership, wound up and settled under the decree of the court, and accounts of the partnership taken, and a sale of some portion of the property made by the directors set aside, and it was held that all the members of the company, however numerous, must be made parties. " It is perfectly obvious," said the master of the rolls, " that a suit, where all the accounts of the partnership are to be taken, and the rights of all the pai'ties are to be de- termined, as between themselves, and under the various cir- cumstances in which the}' stand in relation to each other, some of them, for instance, having paid their calls, and others having omitted to do so, cannot be i)rosecuteil in the ai)sence of any of those parties." The case of Fuller v. Benjamin is equally })ointed. In that case four persons had been co-partners, two of whom had be- 102 EQUITY PLEADING. come insolvent, and were out of the state; the suit was brought by one of the partners against the solvent member. On demurrer for want of parties the court said: " In cases of partnership it must be difficult, if not impracticable, to pro- ceed in equity without the presence of all the co-partners or their legal representatives. Each must be expected to have claims, either for services rendered or advances made, without the adjustment of which it will be impossible to ascertain what may be due from or to the joint concern by each; or what just claim any one or more of them may have against any one or more of the others. Until such an ascertainment shall have been made it will be impossible to pass a decree, which shall be founded upon the principles of justice, as to their several rights." And again : " The plaintiff' in this case would seem to be without remedy, either at law or in equity. In Story on Equity Pleadings, sections 82, rionar Gill & J., 4 ; 8 Pet., 528. We have examined with care the proofs in the record of the comj)lainant's demand as set forth in the bill, and are satisfied with the amount found by the decree. It could be productive of no good to vindicate this view of the subject by entering into an analytical examination of the testimony. We are not unmindful of the length of time through wdiich the complainant has been pursuing his remedy, nor of the verdicts which have been rendered in the trials at law. They were the results of vigorously contested litigation, after the most elaborate preparation of the case. Nor are we unmind- ful that the court below, in the case before us, came substan- tially to the same conclusion. Our judgment, however, has been formed upon grounds wholly apart from these considera- tions. If the question were res iniegra in this case, and now for the first time to be passed upon, we should have no difficulty in sustaining the decree. We think the full amount found by the court is justly due. [Note. — Only so much of this case is reported as rehites to Equity Pleading and Practice. ] CHAPTER IV. PfiOCESS ISSUANCE SERVICE. Rule 11. No process of subpoena shall issue from the clerk's office in any suit in equity until the bill is filed in the office. liule 12. Whenever a bill is filed, the clerk shall issue the process of subpoena thereon, as of course, upon the application of the plaintiff, which shall be returnable into the clerk's oflBce the next rule-day, or the next rule-day but one, at the election of the plaintiff, occurring after twenty days from the time of the issuing thereof. At the bottom of the subpoena shall be placed a memorandum, that the defendant is to enter his appearance in the suit in the clerk's office on or before the day at which the writ is returnable ; otherwise the bill may be taken f)ro confesso. Where there are more than one defendant, a writ of subpoena may, at the election of the plaintiff, be sued out separately for each defendant, except in the case of husband and wife defendants, or a joint subpoena against all the de- fendants. Rule 7. The process of subpoena shall constitute the proper mesne process in all suits in ecjuity, in the first instance, to require the defendant to appear and answer the exigency of the bill ; and, unless otherwise provided in these rules, or specially or- dered by the circuit court, a writ of attachment, and, if the defendant can not be found, a writ of sequestration, or a writ of assistance to enforce a delivery of possession, as the case may require, shall be the proper process to issue for the pur- ( 106 ) TOLAXD V. SI'KA(irK. 107 pose of compelling obedience to any inteilocutorv or tinal order or decree of the court. Hnlc ir>. The service of all process, mesne and final, shall be by tlie marshal of the district, or his deputy, or by some other per- son specially a])pointed by the court for that purpose, and not otherwise. Jn the latter case, the person serving the process shall make affidavit thereof. liule 13. The service of all subpoenas shall be by a delivery of a copy thereof by the officer serving the same to the defendant per- sonally, or by leaving a copy thereof at the dwelling-house or usual place of abode of each defendant, with some adult j)er- son who is a member or resident in the family. Rule 14. Whenever an}^ subpoena shall be returned not executed as to any defendant, the plaintiff shall be entitled to another subpcena, toties quoties, against such defendant, if he shall re- quire it, until due service is made. IU(/e Id. Upon the return of the subpcena as served and executed upon any defendant, the clerk shall enter the suit upon his docket as pending in the court, and shall state the time of the entry. TOLAND V. SPRAGUE. (12 Petei-s, 300-338. 1838.) Opinion by Mr. Justice Barbour. Statement of Facts. — This is a writ of error to a judgment of the circuit court of the United States for the district of Penn- sylvania. The suit was commenced by the plaintiff in error against the defendant in error, by a process known in Penn- sylvania by the name of a foreign attachment ; by which, ac- cording to the laws of tbat state, a debtor who is not an in- habitant of the commonwealth is liable to be attached by liis 108 EQUITY PLEADING. property found tlierein, to a})pear and answer a suit brought against him by a creditor. It appears upon the record that the plaintifi' is a citizen of Pennsylvania, and the defendant a citizen of Massachusetts, but domiciled at the time of the institution of the suit, and for many years before, without the limits of the United States, to wit, at Gibraltar ; and when the attachment was levied upon his property, not being found within the district of Penn- S3dvania. Upon the return of the attachment executed on certain gar- nishees holding property of or being indebted to the defend- ant, he, by his attorney, obtained a rule to show cause why the attachment should not be quashed, which rule was after- wards discharged by the court ; after which the defendant ap- peared and pleaded. Issues were made up between the parties, on which they went to trial, when a verdict and judgment were rendered in favor of the defendant. At the trial a bill of exceptions was taken by the plaintiff, stating the evidence at large, and the charge given by the court to the jury, which will hereafter be particularly noticed when we come to con- sider the merits of the case. But before we do so there are some preliminary questions arising in the case which it is proper for us to dispose of. And the first is, whether the process of foreign attachment can be properly used by the circuit courts of the United States, in cases where the defendant is domiciled abroad, and not found within tlie district in which the process issues, so that it can be served upon him ? The answer to this question must be found in the construc- tion of the eleventh section of the judiciary act of 1789 (1 Stat, at Large, 78), as influenced by the true principles of in- terpretation, and by the course of legislation on the subject. That section, as far as relates to this question, gives to the circuit courts original cognizance, concurrent with the courts of the several states, of all suits of a civil nature, at common law or in equity, where the matter in dispute exceeds, exclu- sive of costs, the sum or value of $500, and an alien is a party ; or the suit is between a citizen of the state where the suit is brought and a citizen of another state. It then provides that no person shall be arrested in one district for trial in another, in any civil action before a circuit or district court ; and, more- over, that no civil suit shall be brought before either of said TOLAM) V. SI'i:A(ii:K. 109 courts nuainsl an inlialiitanl of tlir I'liitcd JStates, l>y any original {)roceHs, in any other district than tiiat whereof ho is an inhabitant or in which he shall be found at the time of serving the writ. As it r-espects persons who are inlial)itants or who are found in a })articuhir district, the language is too ex})licit to admit of doubt. The difficulty is in giving a con- struction to the section in relation to those who are not inhab- itants and not found in the district. This question was elaborately argued by the circuit court of Massachusetts in the case of Picquet v. Swan, re- ported in 5 Mason, 35. Referring to the reasoning in that case generally as having great force, we shall content our- selves with stating the substance of it in a conden.sed form hi which we concur. Although the i)roccss acts of 1780 (1 Stats, at Large, 1)3) and 1702 (Id., 275) have adopted the forms of writs and modes of process in the several states, they can have no effect where they contravene the legislation of congress. The state laws can confer no authority on this court in the exercise of its jurisdiction, by the use of state process, to reach either persons or property, which it could not reach within the meaning of the law creating it. The judiciary act has divided the United States into judicial districts. Within these districts a circuit court is required to be holden. The circuit court of each district sits within and for that disti'ict and is bounded by its local limits. Whatever may be the extent of their jurisdiction over the subject. matter of suits in respect to persons and property, it can only be exercised within the limits of the district. Congress might have autho- rized civil process from any circuit court to have run into any state of the Union. It has not done so. It has not in terms authorized any original civil process to run into any other district ; with the single exception of subpa;nas for witnesses, within a limited distance. In regard to final process there are two cases, and two only, in which writs of execution can now by law be served in any other district than that in which the judgment was rendered ; one in favor of })rivate jiersons, in another district of the same state ; and the other in favor of the United States, in any j)art of the United States. We think that the opinion of the legislature is thus manifested to be that the })rocess of a circuit court cannot be served without the district in which it is established, without the s])ccial authoritv of law therefor. 110 EQUITY PLEADING. If such be the inference from the course of legislation, the same interpretation is alike sustained by considerations of reason and justice. Nothing can be more unjust than that a person should have his rights passed upon and finally decided by a tribunal, without some process being served upon him by which he will have notice which will enable him to appear and defend himself This principle is strongly laid down in Buchanan v. Rucker, 9 East, 192. Now it is not even con- tended that the circuit courts could proceed to judgment against a person who was domiciled without the United States and not found within the judicial district so as to be served with process, where the party had no property within such district. We would ask what difference there is, in reason, between the cases in which he has and has not such property? In the one case, as in the other, the court renders judgment against a person who has no notice of the proceeding. In the one case, as in the other, they are acting on the rights of a person who is beyond the limits of their jurisdiction and upon whom they have no power to cause process to be personally served. If there be such a difference we are unable to per- ceive it. In examining the two restraining clauses of the eleventh section we find that the process of capias is in terms limited to the district within which it is issued. Then follows the clause which declares that no civil suit shall be brought before either of the said courts against an inhabitant of the United States, by any original process, in any other district than that whereof he is an inhabitant or in which he shall be found at the time of serving the writ. We think that the true con- struction of this clause is that it did not mean to distinguish between those who are inhabitants of or found within the dis- trict, and persons domiciled abroad, so as to protect the first and leave the others not within the protection ; but that, even in regard to those who were within the United States, they should not be liable to the process of the circuit courts, unless in one or the other predicament stated in the clause ; and that as to all those who are not within the United States it was not in the contemplation of congress that they would be at all subject, as defendants, to the process of the circuit courts, which, by reason of their being in a foreign jurisdiction, could not be served upon them ; and, therefore, there was no pro- vision whatsoever made in relation to them. TOLAXD V. Sl'KAGUE. Ill If, indeed, it be assumed tluu congress acted under the idea that the process of the circuit courts could reach })ersons in a foreign jurisdiction, then tlie restriction might be construed as operating only in favor of the inhabitants of the United States, in contradistinction to those who were not inhabitants ; but, upon the ])rinciple which we have stated, that congress had not those in contemplation at all, who w^ere in a foreign jurisdiction, it is easy to perceive wliy the restriction in regard to the process was confined to inhabitants of the United States. Plainly, because it would not have been necessary or pro})er to apply the restriction to those whom the legislature did not contemplate as being within the reach of the process of the courts, either with or w'ithout restrictions. With these views, we have arrived at the same conclusions as the circuit court of Massachusetts, as announced in the fol- lowing propositions, namely : 1. That by the general pro- visions of the laws of the United States, the circuit courts can issue no process beyond the limits of their districts. 2. That independently of positive legislation, the process can only be served upon persons wdthin tlie same districts. 8. That the acts of congress adopting the state process, adopt the form and modes of service only so far as the persons are rightfully within the reach of such process, and did not intend to en- large the sphere of the jurisdiction of the circuit courts. 4. That the right to attach property, to compel the appearance of persons, can properly be used only in cases in which such persons are amenable to the process of the court, in personam ; that is, where they are inhabitants or found within the United States ; and not where they are aliens, or citizens resident abroad, at the commencement of the suit, and have no inhab- itancy here ; and we add, that even in case of a person being amenable to process in "personam., an attachment against his property cannot be issvied against him, except as part of or to- gether with process to be served upon his person. The next inquiry is whether, the process of attachment having issued improperly, there has anything been done which has cured the error? And we think that there is enough apparent on the record to produce that effect. It appears that the party appeared, and pleaded to issue. Now, if the case were one of a want of jurisdiction in the court, it would not, according to well-established principles, be com- petent for the parties, by any act of theirs, to give it. But 112 EQUITY PLEADING. that is not the case. The court had jurisdiction over the parties and the matter in dispute ; the objection was, that tlie party defendant, not being an inhabitant of Pennsylvania, nor found therein, personal process could not reach him ; and that the process of attachment could only be properly issued against a party under circumstanc.es which subjected him to process in personam. Now this was a j)ersonal privilege or exemption, which it was competent for the part}' to waive. The cases of Pollard V. Dwight, 4 Cranch, 421, and Barry v. Foyles, 1 Pet., 311, are decisive to show that, after appearance and plea, the case stands as if the suit were brought in the usual manner. And the first of these cases proves that exemption from lia- bility to process, and that in case of foreign attachment, too, is a personal privilege, which may be waived ; and that appearing and pleading will produce that waiver. It has, however, been contended, that although this is true as a general proposition, yet the party can avail himself of the objection to the process in this case, because it appears from the record that a rule was obtained by him to quash the at- tachment, which rule was afterwards discharged ; thus show- ing that the party sought to avail himself of the objection be- low, which the court refused. In the first place, it does not appear upon the record what was the ground of the rule ; but if it did, we could not look into it here, unless the party had placed the objection upon the record in a regular plea ; upon which, had the court given judgment against him, that judg- ment would have been examinable here. But in the form in which it was presented in the court below, we cannot act upon it in a court of error. The judiciary act authorizes this court to issue writs of error to bring up a final judgment or decree in a civil action, or suit in equity, etc. The decision of the court upon a rule or motion is not of that character. This point, which is clear U})on the words of the law, has been often adjudged in this court ; without going further, it will be sufficient to refer to 6 Pet., 648 ; 9 Pet., 4. In the first of these cases the question is elaborately argued by the court, with a review of authorities ; and they come to this conclusion that they consider all motions of this sort,. that is, to quash executions, as addressed to the sound discretion of the court ; and as a summary relief, which the court is not compellable to allow. That the refusal to quash is not, in the sense of the common law, a judgment ; TOI.AM) \. Sl'KACUK. 113 much less is it a liiial juduiiiciit. It is a mere iiiterloeiiloiT order. Even at cohiiikiii law, eiTor diilv lies IVom a liiial judoment ; and by the express provisions ot" the judiciary act, a writ of error lies to this court only in cases of linal judj^- ments. Having now gotten rid of these })r( liniinary (questions, wo come, in the order of argument, to the merits of the case. To understand these, it will be necessary to look into the ])lead- ings, the evidence, and chai-ge of the court, as embodied in the exceptions. The declaration is in assninpsif, and originally contained thiee counts, namely, the first, a count charging the delivery of certain goods to the defendant, upon a promise to account and pay over the proceeds, or sale thereof, by the defendant ; and a breach of promise, in not accounting, or paying the pro- ceeds of the sale. Secondly, a count in indebitatus assuinpsit ; and thirdly, a count upon an account stated. A rule having been granted to amend the declaration, by striking out this last count, and that rule having been made absolute, we shall consider the declaration as containing only the first two counts. To this declaration the defendant pleaded the general issue, which was joined by the plaintiff', and also the act of limitations ; to this second plea, the plaintiff replied, relying on the exception in the statute in favor of such accounts as concern the trade of merchandise between merchant and mer- chant, their factors or servants ; averring that the money in the several ])romises in the declaration became due and pay- able on trade had between the plaintiff and defendant, as merchant, and merchant and factor, and wholly concerned the trade of merchandise between the plaintiff as a merchant, and the defendant as a merchant and factor of the plaintiff; and averring, also, that no account whatever of the said money, goods and merchandises, in the declaration mentioned, or any part thereof, was ever stated, or settled between them. The defendant rejoined that he was not the factor of the plaintiff; and that the money in the several promises in the declaration mentioned did not become due and payable in trade had be- tween the plaintiff and defendant as merchant, and merchant and factor; and on this, issue was joined. On the trial of these issues there were sundry' letters between the parties, and accounts given in evidence, which are set forth at large in a bill of exceptions, in relation to wdiich the court gave a chaige .1 14 EQUITY PLEADING. to the jury ; the jury having found a verdict lor the defendant, and the court having rendered a judgment in his favor, the case is brought by the pkiintiffs into this court by writ of error. And the question is, whether there is any error in the charge of the court, as applied to the facts of the case stated in the exception. The court, after going at large into the facts of the case, and the principles of law applying to it, concluded with this instruction to the jury : That there was no evidence in the cause which could justify them in finding that the ac- count in evidence was such a mutual, open one, as could bring the case within the exception of the act of limitations. In deciding upon the correctness of this instruction, it is necessary to inquire \vhat is the principle of law b}^ which to test the question whether a case does or does not come within the exception of the statute in favor of accounts between mer- chant and merchant, their factors or servants. No principle is better settled than that, to bring a case within the excep- tion, it must be an account ; and that, an account 0[)en or current. See 2 Wms. Saund., 127 d, e, note 7. In 2 Johns., 200, the court say that the exception must be confined to actions on open or current accounts ; that it must be a direct concern of trade ; that liquidated demands, or bills and notes which are only traced up to the trade or merchandise, are too remote to come within this description. But tlie case of Spring v. Gray, 6 Pet., 151, takes so full and accurate a review of the doctrine and cases as to render it unnecessary to refer to other authorities. It distinctly asserts the principle that the account, to come within the exception, must be open or current. This construction, so well settled on authority, grows out of the very purpose for which the exception was enacted. Tiiat pur])ose was to pre- vent the injustice and injury which would result to merchants having trade with each other, or dealing with factors, and living at a distance, if the act of limitations were to run, where their accounts were open and unsettled ; where, there- fore, the balance was unascertained, and where, too, the state of the accounts might be constantly fluctuating, by continuing dealings between the parties. But when the account is stated between the parties, or when anything shall have been done by them which, by their im- plied admission, is equivalent to a settlement, it has then be- come an ascertained debt. In the language of the court of TOLAND V. SPKAGUE. 115 a])peals of Virginia (4 T^oigli, 240), "all iiitricac}' of account, or doubt as to which side the balance ifiay fall, is at an end ; " and thus the case is neither within the letter nor the spirit ot the exception. In short, when there is a settled account, that becomes the cause of action, and not the original account, although it grew out of an account between merchant and merchant, their factors or servants. Let us now inquire how tar this principle applies to the facts of' this case. It appears by the bill of exceptions that the facts are these : In the year 1824 the plaintiff consigned a quantity of mer- chandise, by the ship William Penn, bound for Gibraltar, to a certain Charles Pettit, accompanied with instructions as to the disposition of it. Pettit, after arriving at Gibraltar, and remaining there a short time, placed all the merchandise be- longing to the plaintiff, which remained unsold, in the hands of the defendant, to be disposed of by him for plaintiff's ac- count. The plaintiff produced on the trial an account of the sales of the aforesaid merchandise, dated June 30, 1825, signed by the defendant, as having been made by him, amounting in net proceeds to $2,579.13 ; and showing that balance. In September, 1825, the plaintiff wrote to the defendant, requesting him to remit to him the net proceeds of this mer- chandise, amounting to $2,579.13 ; after deducting therefrom a bill of exchange of $1,000, which had been drawn by de- fendant in favor of Charles Pettit, on a house in New^ York. Pettit being indebted to the defendant, as alleged by him, in a large sum of money, for advances and otherwise, the de- fendant refused to pay the i)laintifF the amount of the sales of the mci'chandise ; and denied his liability to account to him therefor. In addition to the demand before stated, by plaintiff on the defendant, for the balance of the account of sales by letter, on the trial of the cause, the counsel for the })laintiff, in opening the case, claimed the balance of an account between Sprague, the defendant, and Charles Pettit; being the precise amount of the balance of the account of sales, after deducting the bill of exchange for $1,000. It a})pears that the plaintiff was in possession of the account of sales as early as September, 1825. U]>on this state of facts a)i{)earing in the record, the ques- tion is, whether the cause of action in this case is an open or current account between the ])laintifl" and defendant, as mer- 116 EQUITY PLEADING. chant and factor, concerning merchandise ; or whether it is an ascertained bahmce, a hquidated sum, which, althougli it grew out of a trade of merchandise, is in legal effect, under the circumstances, a stated account? We think it is the latter. In the language of the court wlio gave the charge, we tliink that " the chiim is for a precise balance, which was demanded by the })laintiff from the defendant in 1825." From the nature of the account and the conduct of the parties there was from the time tlie account of sales was received by the plaintiff showing the balance, and demanded by the plaintiff of defend- ant, no unsettled open account between them as merchant and mercliant, or merchant and factor. We agree in opinion with the circuit court tliat there was a matter of controversy brought to a single point between them ; that is, which of them had, by law, a riglit to a sum of money, ascertained by consent to amount to |1,579. That the nature of the account is not changed by there being a controversy as to a balance stated, which the defendant does not ask to diminish, or the plaintiff to increase ; and as neither party asks to open the account, and both admit the same balance, there can be no pretense for saying that it is still open. As the circuit court say, tiie question between them is not about the account, or any item in it ; but as to the right of the defendant to retain the admitted balance, to repay the advances made to Pettit. We agree with the court that the mere rendering an account does not make it a stated one ; but that if the other party re- ceives the account, admits the correctness of the items, claims the balance, or offers to pay it, as it may be in his favor or against him, then it becomes a stated account. Nor do we think it at all important that the account was not made out as between the plaintiff and defendant ; the plaintiff having re- ceived it, having made no complaint as to the items or the balance, but on the contrary having claimed that balance, thereby adopted it ; and by his own act treated it as a stated account. We think, therefore, that the act of limitations be- gan to run from the 3'ear 1825, when that demand was made ; and consequently that the instruction of the court was correct in saying that it was not within the exception. It has, however, been argued, that whatever might be the conclusion of the court, as resulting from the evidence, that the defendant had admitted u})on the record that the account TOLAXI) V. SrUAfiUK. 1 1 ( was an open one. It is said thai the })laintill' having aveni'd in his replication that there was no account stated or settled between him and the defendant, and the defendant not hav- ing traversed that averment in his rejoinder, the matter con- tained in that averment is admitted. It is a rule in pleading, that where in the pleading of one party there is a material averment, which is traversable, but which is not traversed by the other party, it is admitted. We think that the rule does not api)ly to this case, because the negative averment in the replication, that no account had been stated between the parties, was not a necessary part of the })laintiff's rejdication, to bring him within the exception of the statute in relation to merchants' accounts. Inasnuich, then, as the replication with- out that averment would be sufficient, we do not consider it as one of those material averments, the omission to traverse which is an admission of its truth, within the rule before stated. But in another aspect of this case the statute of limitations would apply to and bar the plaintiff's claim, if the account of sales were regarded as having no operation in the case. The plaintiff, standing in the relation which he did to the defend- ant, as it respects this merchandise, had a right to call upon him to account; he did make tliat demand, and the defendant refused to render one, holding himself liable to account to Pettit only. From the moment of that demand and refusal the statute of limitations began to run. See 1 Taunton, 572. It was argued that the question whether there was a stated account or not was a question of fact for the jury ; and that therefore the court erred in taking that (juestion from them, and telling them that this was a stated account. The answer is that there was no dispute about the facts ; and that the plaintiff claimed the balance of the account as being the pre- cise sum due him. It was therefoie competent to the court to instruct the jury that it was a stated account. Upon the whole, we think there is no error in the judgment ; it is there- fore affirmed, with costs. Taney, C. J., and Justicks Baldwix and W'ayxk, dissented from that part of the opinion which decides that the circuit courts have not the power to issue the process of attachment against the pro])erty of a debtor who is not a resident of the United States ; but contending that the jtoint was not projierly before the court. 118 EQUITY PLEADING. EX PAETE GRAHAM. (Circuit Court for Pennsylvania: 3 Washington, 456-464. 1818.) Opinion by Washington, J. The question turns upon the authority of the district or cir- cuit court of one district to issue its process into any other district to compel the appearance of a person residing or found within the latter jurisdiction before the court from which the process issued ; or to stand committed for any alleged con- tempt of that court. It is admitted that these courts, in the exercise of their com- mon law and equity jurisdiction, have no authority, generally, to issue process into another district, except in cases where such authority has been specially bestowed by some law of the United States. The absence of such a power would seem nec- essarily to result from the organization of the courts of the United States, by which two courts are allotted to each of the districts into which the United States are divided ; the one denominated a district, the other a circuit court. This division and appointment of particular courts for each district necessarily confines, the jurisdiction of the local tribu- nals within the bounds of the respective districts within which they are directed to be holden. Were it otherwise, and the court of one district could send compulsor^^ process into any other, so as to draw to itself a jurisdiction over persons or things without the limits of the district, there would result a clashing of jurisdiction between those courts whicli could not easily be adjusted, and an oppression upon suitors too intoler- able to be endured. But the legislature of the United States, from abundant caution as it would seem, has not left this subject to implica- tion. After conferring upon those courts respectively the portion of jurisdiction which congress intended they should exercise, the eleventh section of the act of 24th September, 1789, chapter 20, declares " that no person shall be arrested in one district, for trial in another, in any civil action before a circuit or district court ; nor can a civil suit be brought be- fore either of those courts against an inhabitant of the United States, by any original process, in any other district than that whereof he is an inhabitant or in which he shall be found at the time of serving the writ." These provisions appear manifestly to circumscribe the juris- KX TAUTK til; A 11A.M. 1 19 diction of those courts as to the person of the tlolbiulant by tlio limits of the district where the suit is brought; and that tlie process of those courts was considered by the legishiturc to be bounded by the same limits is obvious from tlie subsequent acts passed; the one on the 2d of March, 1793, chapter 22, section 6, authorizing sub[)(cnas for witnesses to attend tlie courts of one district to run into aii}^ other district, not exceed- ing, in civil cases, one hundred miles from the ])lace of hold- ing the court; and the other, on the od of March, 17'.>7, chapter 74, section G, which authorizes writs of execution upon judgments obtained at the suit of the United States in any of their courts in one state to run and be executed in an}' other state or territory. It would seem that these provisions were made, not because they were supposed by congress to be necessary, in conse- quence of the eleventh section of the judicial law, but because the jurisdiction of the courts was essentially confined by their organization within the limits of their respective districts; for it is to be observed that that section applies exclusively to original suits, and to the pa7iies in those suits; and therefore imposed no restraint, in respect to writs of execution and sub- poenas for witnesses, which could render the above provisions at all necessary. But it has been argued that tliese restraints are incompati- ble with the essential jurisdiction of an admiralty court, more es])ecially in prize causes. That the laws of the United States authorize the distinction which is contended for between the courts of common law and equity, and the admiralty jurisdiction has not, and it is confi- dently believed cannot, be shown. It is true that the ninth section of the judiciary act gives to the district courts exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction without limita- tion ; and it is not less true that the eleventh section gives to the circuit courts original cognizance of all suits of a civil na- ture, at common law and in equity, where an alien is a party or the suit is between a citizen of the state where the suit is brought and a citizen of another state, equally unlimited, ex- cept as to the amount. But the jurisdiction of these courts, though unlimited as to the suhject-maiter of which they have cognizance, by any express declaration of the legislature, is nevertheless limited in point of localitij, as well by the gen- 120 i:qL'1TY i'lkading. eral j)iinciples of law wliicli our courts acknowledge as rules of decision, as b}' the ex])ress provisions of the eleventh sec- tion of the judiciary law before mentioned. As to the first, it will be acknowledged that there is no law of congress which limits the jurisdiction of the courts by ihe nature of the suits of which they have cognizance. By what law, then, is it that actions of ejectment, dower and trespass, in relation to real proj)erty, can be brought only in the district where the land lies? If the defendant be served with process in the district where the suit is brought, neither the eleventh st'ction nor any other provision in the act of congress has restrained tlie jurisdiction of the court in the supposed cases. The only answer to the question is that the want of jurisdiction is the result of certain general principles of law acting upon the particular subject. In like manner the jurisdiction of these courts, when sitting in admiralty or prize cause, is limited by those general prin- ciples which apply to courts of admiralty in England and the United States as well as in other countries. Though bounded only by the nature of the causes over which they are to decide, and not in any respect by j)lace, it is nevertheless essential to the exercise of this jurisdiction by any particular court that the person or thing against whom or which the court proceeds should be within the local jurisdiction of such court. Such was the jurisdiction of the several vice-admiralty courts of Great Britain, in America and the West Indies, until the statute of the forty-first of George III., which, whether sitting as instance or prize courts, were confined to breaches of the revenue laws committed within their local jurisdictions, and to cases of ves- sels, etc., brought within their local jurisdiction. The only exception to the general rule above stated, applicable to the court of admiralty in prize causes, is that of a vessel lying in the port of a neutral country, most unwillingly assented to by Sir W. Scott under the sanction of })recedents, but powerfully opposed by the reasons urged against it by that distinguished judge. But even in that case it was never pretended that the process of the court could go into the neutral country to com- pel an appearance or enforce the execution of a sentence. But secondly, the jurisdiction of these courts in prize causes is limited as to persons by the express |)rovisions of tlie eleventh section of the judiciary law before referred to Prize proceeding against an inhabitant of the United States PHOENIX MUTUAL LIFK INS. CO. V. BKJvTlIA WULF, KT Al,. 121 is unqucslionably a civil suit ; and if it bc^ against tlio pt-rson instead of the thing, the jurisdiction is ex(dnded, unless it 1)0 instituted in the court of the district whereof he is an iidiah- itant or is found at the lime of serving the process. The manifest [)olicy of the judicial system of the United states was to render the administration of justice as littl(> oj)pressive to suitoi's and others as possible ; and it corresponds entirely with that construction which confines the process of the courts within the limits of the district in which the court sits and from which it issued. In the exercise of a jurisdiction over persons not inhabitants of or found within the district where the suit is brought, there are difficulties which, in the opinion of the court, nothing but an act of congress can remove. In what manner, for instance, is the marshal to dis})Ose of the person? He has no author- ity to conduct him beyond the limits of his district, nor to de- liver him over to the marshal of an adjoining district for that purpose. Can he commit him to the gaol of the district where the arrest was made? If he can, the case would present a very extraordinary novelty in jurisprudence — that of a defendant imprisoned in one district to answer to a suit depending against him in another, how great soever the distance of the one place might be from the other. In criminal cases, where the offender is arrested in one dis- trict for trial in another, the thirty-third section of the judicial law has provided, not only for the removal of the offender and witnesses, but also for the transmission of the process and recognizance taken in the case to the proper court. In like manner, should it be the will of congress to vest in the courts of the United States an extra-territorial jurisdiction in j>rize causes over persons and things found in a district other than that from which the process issued, it would, seem to be proper, if not absolutely necessary, at the same time to j)rescribe the mode of executing the process. Ui)on the whole we are of opinion that the petitioner ought to be discharged. PHOENIX MUTUAL LIFE INS. CO. v. BERTHA WULF, ct nl. (9 Bissel 285, 1880). Gresham, J. The defendant, Bertha Wulf, owned certain real estate in Indianapolis, which she conveyed, her husband joining, to a tliii'd ])orson, who conve\'od it liack to her hu.s- 122 EQUITY PLEADING. band, Henry Wulf. The husband, the wife joining, then mortgaged the same property to the Phtt'nix Mutual J^ife In- surance Company to secure a loan. The mortgage showed upon its face that it was to secure a loan to the husband. The loan was not paid at maturity, and afterward the mortgage was foreclosed in this court. Bertha Wulf subsequently brought suit in this court to set aside her deed to the third party, his deed to her husband, and the mortgage of herself and husband to the insurance company on the sole ground that she was a minor when she executed those instruments. The service in the foreclosure suit was after Bertha Wulf had attained her majority, and the decree against her was by default. The marshal's return shows that the subpa;na in the fore- closure suit was properly served on Henry Wulf in compliance with equity rule 13. As to the wife, the return reads thus: " I served Bertha Wulf by leaving a copy for her with her husband." Sometime after the wife commenced her suit, as already stated, the marshal appeared and asked leave tQ amend his return, so as to show that he had served the sub- poena on her by leaving a copy for her with her husband, at her dwelling-house or usual place of abode. The defendant, Henry Wulf, occupied a building at the corner of Virginia avenue and Coburn street, in Indianapolis, both as a dwelling and a family grocery. In the lower story there were two rooms, the main one being occupied as a gro- cery, and the back smaller one for storage purposes. These two rooms were separated l)y a hall which was entered by a door from Coburn street, and also from Virginia avenue through the grocer^^ A stairway led from the hall to the second story, where the family dwelt, eating and sleeping. The hall and stairway were accessible in both ways. The deputy marshal found the husband in the grocery and there served the subpoena on him and then inquired for his wife, and was informed that it was early in the morning and she was upstairs in bed where the family lived. The officer, then, in the grocery, handed to the husband a copy of the subpoena for his wife. Upon these facts was there a valid service on the wife under the 13th Equity Rule, which declares that the service of all subpoenas shall be by a delivery of a copy thereof, by the officer serving the same to the defendant personally, or by PHOENIX Ml'TUAL LIFE INS. CO. V. 15KKTII A WULF, ET AL. 1 '2o leaving a copy thereof at the dwelhiig-liouse or usual j»lace of abode of each defeiulant with some adult person who is a member or resident in the faniily? It is urged by counsel that the odicer handed to tlie husb;iiid a co{)y of the subpoena when he was not at the "dwelling- house or usual place of abode" — that the groeery room was as distinct from the residence in tlie upper story, as if the two had been in separate buiUlings miles apart, 'i'hat construc- tion of the I'ule is narrow and uni-easonable. It is conceded that if the oflficers had handed the copy to the husband in the hall the service would have been good, because the upper story was approached only tlu^ough the hall, and it was there- fore connected with the dwelling. There were but two ways of ingress to the residence or upper story — one from Virginia avenue, through the grocery, and the other through the door opening from Coburn street. The family passed in and out as best suited their convenience. A copy was left with one who understood its contents and was likely to deliver it to tlie person for whom it was intended. The case of Kibbe v. Benson, 17 Wallace, 625, is cited against the sufficienc}' of the service. That was an action of ejectment in the circuit court of the United States for the Northern District of IlHnois, which had adopted the statute of that state relating to actions of ejectment. After judgment was entered for the plaintiff by default, the defendant filed a bill in equity to set aside the judgment on the ground that he had no notice or knowledge of the pendency of the suit and for fraud. The Illinois statute required that in actions of ejectment, where the premises were actually occu])ied, the declaration should be served by delivering a copy to the de- fendant named therein, who should be in the occupancy of the premises, or if absent, by leaving the. same with a tvliite person of the family of the age of ten years or u|)wards " at the dwelling-house of such defendant." On the trial of the equity suit, one Turner swore that when he called at Benson's house to serve upon him the declaration, he was informed by Benson's father that Benson was not at home, and that while the father was standing near the south- east corner of the yard, adjoining the dwelling-house, and in- side the 3'ard, and not over 125 feet from the dwelling-house, he handed him a copy of the declaration, explaining its nature, and requesting him to hand it to his son, after which the 124 EQUITY PLEADING. father threw tlio co[)y upon the ground, muttering some angry words. There was a conflict in the testimony, but the circuit court decided that even if the copy was handed to the father, as tes- tified to by Turner, the service was not sufficient, and set aside the judgment which had been entered by default, and the decree was affirmed on appeah In deciding the case the Supreme Court say : "It is not unreasonable to require that it (copy of the declaration) should be delivered on the steps, or on a portico, or in some out-house adjoining to or immediately connected with the family mansion, where, if dropped or left, it would likely reach its destination. A distance of 125 feet, and in a corner of the yard, is not a com])liance with the re- quirement." Rule 13 should receive a literal construction. It does not require the copy of the subpoena to be left with a person in the dwelling-house ; it is sufficient if the person who receives the copy is at the dwelling-house. The rule is satisfied by a service outside the dwelling-house at the door, just as well as inside the house. I think Bertha Wulf was in court when the decree of foreclosure was entered. This is not a motion to correct the pleadings, judgment or process. Courts have the power to permit officers to amend their re- turns to both mesne and final process, and the power is exer- cised liberally in the interest of justice, especially when the rights of third parties are not to be affected by the amend- ment. In the exercise of sound discretion they have allowed officers to amend their returns according to the real facts after the lapse of several years, and when there is no doubt about the facts, such amendments have been allowed after the offi- cer's term has expired. I think justice requires that the amendment should be allowed in this case. GKACIE, et al., v. PALMER, et al. (8 Wheaton 699, 1823. ) Mr. Webster moved to dismiss the writ of error in this case, for want of jurisdiction. He stated that the phiintifts below, Palmer and others, were described to be aliens, and subjects of the King of Great Britain, and the defendants, Gracie and others, to be citizens of the State of New York, and the suit was brought in the circuit court of Pennsylvania. I'AKSONS V. IK (WARD. 1 '25 It did not api)ear that the defendants were inhabitant.s of, or found in the district of Pennsylvania at the time of serving the writ; and he therefore contended, under the 11th section of the Judiciary Act of 1789 c. 20, that no civil suit could be brought against them by original process in that district. Mr. Chief Justice Marshall stated, that the uniform con- struction, under the clause of the act referred to, had been, that it was not necessary to aver, on the record, that the de- fendant was an inhabitant of the district or found therein. That it was sufficient if the court appeared to have jurisdic- tion by the citizenship or alienage of the parties. The ex- emption from arrest in a district in which the defendant was not an inhabitant, or in which he was not found at the time of serving the process, was the privilege of the defendant, which he might waive by a voluntary appearance. That if the process was returned by the marshal as served upon him within the district, it was sufficient ; and that where the defendant voluntarily appeared in the court below, with- out taking the exception, it was an admission of the service, and a waiver of any further inquiry into the matter. Motion denied. PARSONS V. HOWARD. (Circuit Court for Louisiana : 2 Woods, 1-7. 1873. ) Statement of Facts. — This is a bill in equity by com- plainants, who state that they, defendants and certain other persons were })artners in the lottery business, and one of their articles of agreement was that if any associate should acquire any lottery privilege it should be transferred to the company as part of the common stock. It charged that defendants had acquired such privileges in Louisiana and excluded complain- ants from participation. The prayer was for an injunction, sale, etc. Parsons having died, a bill of revivor was filed. There was a demurrer to the original bill and a plea to the bill of revivor. Further facts appear in the opinion of the court. Opinion by Ijradley, J. The plea to the bill of revivoi' in this case is good, if true, and if the suit proceeds farther the comi)lainants must reply to it, and proceed to proofs. I observe that the only allegation in the bill of revivor is that the com})lainants therein have obtained letters of exccutorsliip on the estate of Rculxii Par- 126 EQUITY PLEADING. sons, deceased, without specifying any last will, any state or place, or court, in which the letters were issued. This is ex- tremely informal. All these particulars should have been stated, so tliat the court could see that the com])lainants were fully entitled to be substituted in the i)lace of Parsons. Let- ters testamentary, issued in New York, have no efficacy in Louisiana, unless the laws of the latter state make provision to that effect. The demurrer to the original bill states, as causes of objec- tion, want of parties, multifariousness, immorality of the transactions on which the prayer for relief is founded, and general want of equity. The substantive charge of the bill is that the defendants, together with Zachariah E. Simmons and John A. Morris, are carrying on a lucrative lottery business in New Orleans, and in the state of Louisiana, and appropri- ating the profits to their own use, whilst in equity the com- plainants and certain other persons are entitled to a share of. said business, of which the defendants, together with Simmons and Morris, unjustly deprive them; and the relief sought is an account of the profits of the said business, a declaration that the defendants are trustees for the complainants, and the other parties really interested, and a sale of the whole property and business and division of the proceeds. The ground on which this claim is based is that Murray, one of the defendants, and Simmons and Morris, were for- merly associated in the lottery business with the complainants and other persons, jointly as partners in a firm, whose style was generally C. H. Murray & Co., under an arrangement which commenced September 1, 1803, to last for ten years, by which the parties to the arrangement, having transferred all their interest in the lottery business, and grants to trustees (Simmons, Murray and Davis), for the purpose of being car- ried on b}' them for the mutual benefit of the proprietors, agreed to do the same with any other lottery grants, or inter- ests therein, which they might severally acquire, under pen- alty of forfeiting the interest they already possessed in the joint business — the object of the assignments and trust being declared to be the avoiding of conflict of interest between the parties and the advantages of a consolidation and joint con- trol of the whole business. The complainants were not orig- inally parties to this arrangement ; but in December, 1867, they became parties thereto, by purchase, with others, of cer- PARSONS V. HoWAin). 1 "-'T tain of the shares, and in .laiuiary, 18GS, they l)ecanie I'urtlier interested by consolidating certain lottery interests of them- selves and others with tlie said lottery' bnsiness of tlie associ- ates. The whole concern tiien consisted of one hundred and fif- teen shares, of which the complainants owned two and a half shares. The defendant Howard was not an as.sociate, but was agent of the concern in New Orleans. The gravamen of complaint is that in the summer of 1808, whilst the business was thus carried on jointly, the defend- ants, Howard and Murray, with Zachariah E. Simmons, John A. ^lorris and other parties concerned and interested in the said bu.siness, procured from tiie legislature of Louisiana an exclusive lottery grant in the shape of a legislative act, under which a corporation called the Louisiana State Lottery Com- pany was organized by them, and a contract made with that corporation for carrying on the lottery business in Louisiana, and that the funds of the joint concern of C. 11. Murray & Co. were used by them in procuring said grant and establish- ing said business, and that by this contrivance they have mo)iopolized the lottery business in that state and excluded the complainants and their other associates from all partici- pation therein. This is the business which the complainants claim as in equity belonging to the joint concern of C. H. Murray & Co., and for the proceeds of which they seek an account and settlement. The bill states that Morris, Simmons, Wm. F. Simmons, Wm. C. France, Benj. Wood and Henry Cotton are not made parties because they are citizens of the same state with the complainants. Conceding, as 1 am inclined to do, that if the facts stated in the bill are true, the claim is well founded and free from the taint of immorality, and that there is no ground for the charge of multifariousness, a question of much gravity still remains in reference to the alleged want of proper parties. I do not perceive any reason for making the Louisiana State Lottery Company a party. Nothing is demanded of it, and no charges of misconduct are made again.st it. It is no concern of the cor})oration that its stockholders are responsible to third i)arties for dividends and profits received. It has 128 EQUITY PLEADING. nothing to do with their controversies, unless in some way involved therein as a corporate body. Much less is the cor- poration concerned in the responsibility under which its con- tractors or agents may have brought themselves in reference to third parties. As to yimmons and Morris, regarded as jointly guilty with the defendants, it is sufficient to sa}' that a breach of trust or an act of bad faith, like a tort at common law, renders the parties, severally as well as jointly, liable as tort-feasors or breakers of trust ; therefore they are not necessary parties. There is more force iu the objection that the other associates and co-partners of the complainants, interested in the same manner as they, are not made parties. If this were the case of an ordinary bill for the settlement of partnership accounts it is clear that all the partners would be necessary parties, be- cause each has not only an interest in the general balance according to his share in the concern, but has an equitable lien for all advances made by him in its behalf, and is liable in equity as a partner for the advances made by the others ; so that no settlement could be made without the actual or constructive presence of all. Hence all must be made parties ; and if any of them are non-residents process must nevertheless be issued ; and in the old English practice certain forms had to be observed (terminating in the commission of rebellion) before the case could be heard. See Daniell's Ch. Pr., 1253. In this country constructive service by publication is gen- erally prescribed and allowed ; but as it has been held that the federal courts have no means of effecting constructive ser- vice, such cases cannot be brought in them unless the non- resident defendants voluntarily appear ; and not even then if they are citizens of the same state with the complainants. The present case, it is true, is not that of the settlement of a partnership concern. The. bill seeks to make the defendants account for property in their hands, alleged to be partnership projDcrty, and make them trustees for the copartnership in re- spect thereof The suit is brought, therefore, for the equal benefit of all the copartners who are not implicated in the transactions complained of The fact that some of the defend- ants are copartners does not divest it of the character of a joint partnership demand. If the firm had held a mortgage on the lands of some of the partners for money lent, the com- plainants could as well have filed a bill to foreclose that PARSONS V. HOWAKI). lliO mortgage, without making the otlicr {larliicrs ]);irti('s, as to file this bill. They do not even allege that ihrv lile it on be- half of themselves and the other partners, whieb, perha|).s, they might do if the number were so great as to render it im- praeticable that all should be joined. It is simply the case of one or two partners suing alone for a partnership demand without joining the other }»artners. To this the defendants have a right to object ; for if these complainants can main- tain this suit, the other partners similarly interested might maintain similar suits in other courts for the recovery of the same demand. The excuse given, that to make the othei's parties Avould oust the court of jurisdiction, is not sufficient. That consequence cannot make it regular to proceed without them. That only proves that this court is not the proper tribunal to settle the controversy. If it be once settled that the other partners are not merely proper but necessary })arties, the complainants cannot set up the limited jurisdiction of the court for not making them such. If, like legatees and distributees of a deceased person's es- tate, they were entitled to an aliquot share of the moneys sought to be recovered, irrespective of the shares and accounts of their co-legatees or co-successors ; or, in the language of the common law. if they were tenants in common as contradistin- guished from joint tenants, or if t-heir titles were both joint and several, they might with more reason be entitled to sue alone for their aliquot share, although an accounting might be necessary to ascertain the amount due. But the moneys sought to be recovered in this case are con- fessedly partnership moneys, and the complainants pray that they may be accounted for as such, and paid into the common partnership fund. In this state of things it is evident that all the other partners are equally interested in the suit with the complainants themselves, and are virtually parties to it, whether made such or not ; and as no sufficient excuse is alleged for not joining therein, the bill is necessarily de- fective. The case is essentially different from that of a suit brought ac/atnst partners. In that case, as all are jointly liable in solido, or according to the civil law, each is liable oidy for his virile share, a suit could probably be sustained against some of the partners, though tlie others could not be found within this jurisdiction. The demurrer must be allowed, with costs. 9 loO EQUITY PLEADING. LOWENSTEIN v. GLIDEWELL. (Circuit Court for ArkaiiHas, 5 Dillon, 325-329 ; S. C, 6 Eep'r, 454; 7 Cent. L. J., 1()7. 1878.) Statement OF Facts. — Plaintiff filed bill to foreclose deed of trust. Partee and wife were made defendants upon allef^a- tion of interest. Partee and wife answered, and also filed cross-bills praying cancellation of deed of trust, etc. No i)r()- cess was issued on cross-bill, and plaintiffs in orginal bill did not enter appearance. Plaintiff in original bill moved to dis- continue. Partee and AS'ife objected and moved for decree ^/ro confcHHo on cross-bill. Opinion by Caldwell, J. The plaintiffs in the original bill have the right, as a mat- ter of course, at any time before decree, to dismiss their bill at their own costs. 1 Barb. Ch. Prac, 225, 228 ; 1 Daniell's Cli. Prac, 792. The cause is not at issue on the original bill — no rci>lication to the answer having been filed — and the de- fendants in that bill, under rule 6G, might liave obtained an order, as of course, for a dismissal of the suit for this reason. The motion of plaintiffs to dismiss their bill is granted, and the same will be dismissed at their costs. The motion of plaintiffs in the cross-bill for a decree pro confesso thereon against the defendants therein named is denied. If the de- fendants in the cross-bill bad been served with })rocess, or had voluntarily entered their a})pearance in the cross-bill, the plaintiff's therein would have been entitled to a decree 7)ro con- fesso after the lapse of the time allowed defendants by the rules to answer. The bill and cross-bill in equity do not necessarily consti- tute one suit, and, according to the established practice in equity, the service of a subpoena on the defendants in the cross-bill, although the_y are parties in tlie original bill, and in court for all the purposes of the original bill, is necessary to bring them into court on the cross-bill, unless they volun- tarily enter their appearance thereto, wliieli is the usual prac- tice. And the general chancery rule is that service of the subpcena in chancery to answer a cross-bill cainiot be made upon the solicitor of the plaintiff in the oi'iginal bill. 1 Iloif. Ch. Prac, 355, and note 4. In the chancery practice of the circuit courts of the United States there are two exceptions to this rule — (1) in case of in- junctions to stay proceedings at law, and (2) in cross-suits in LOWENSTEIN V. GLIDKWELL. lol equity where the plaintiff at law in the first and the jilaintiir in equity in the second case reside heyond the jurisdietion of the court. In these cases, to })revent a failure of justice, the court will order service of the suhpoena to be made upon the attorney of the ])laintiff in the suit at law in the one case, and upon his solicitor in the suit in equity in the other. Eckert V. Bauert, 4 Wash., 370 ; Ward v. iSebring, id., 472 ; Dunn v. Clark, 8 Pet., 1. And for application of analogous i)rinciples to parties to cross-bills, see Schenck v. Peay, 1 Woolw., 175. It not unfrequently occurs that the facts constituting de- fendant's defenses to an action or judgment at law are of a character solely cognizable in equity, and in suits in equity it often happens that; the defendant can only avail himself fully and successfully of his defense to the action through the medium of a cross-bill. In suits in these courts the plaintiff is usuall}^ a citizen of another state, and hence beyond the jurisdiction of the court, and in such cases defendants who desire to enjoin proceedings at law, and defendants in equity cases who desire to defend by means of a cross-bill, would, but for this rule of practice, be practically cut off from their de- fenses by reason of their inability to make service on the plaintiff in the action. It would be in the highest degree un- just and oppressive to permit a non-resident plaintiff to invoke the jurisdiction of the court in his f\ivor, and obtain and retain, as the fruits of that jurisdiction, a judgment or decree to which he was not in equity entitled by remaining beyond the jurisdiction of the court whose jurisdiction on the very subject- matter, and against the very party, he had himself fir.'^t in- voked. The reason of the rule would seem to limit it in equity cases to cross-bills either wholly or partially defensive in their character, and to deny its application to cross-bills set- ting u\) facts not alleged in the original bill, and which new facts, though they relate as they must to the subject-matter of the original bill, are made the basis of the afhrmative relief asked. The cross-bill in this case is of this latter character, and without deciding tiiat this fact alone would preclude the court from directing service of the subpoena on the solicitors of the plaintiffs in the original bill, such an order will not be made after plaintiffs have filed their motion to dismiss their bill — a motion grantable as of cour.se. Whether the dismissal of the original bill carries with it the cross-bill depends on tlie character of the lalUi'. If the 132 EQUITY PLEADING. cross-bill sets up matters purely defensive to the original bill and prays for no affirmative relief, the dismissal of the latter necessarily disposes of the former. But where the cross-bill sets up, as it may, additional facts not alleged in the original bill relating to the subject-matter, and prays for affirmative relief against the plaintiffs in the original bill in the case thus made, the dismissal of the original bill does not dispose of the cross-bill, but it remains for disposition in the same manner as if it had been filed as an original bill. Warrell v. Wade, 17 la., 96 ; 2 Daniel's Ch. Prac, 1556. The cross-bill in this case is of this character and it will re- main on the docket, and the plaintiffs therein can take such action in relation thereto as they may be advised, but no steps can be taken in the case until defendants are brought into court. Ordered a ccording ly . CHAPTER V. DEFAULT AND DECREE PKO CONFESSO. llule IS. It shall be the duty of the defendant, unless the time shall be otherwise enlarged, for cause shown, by a judge of the court, upon motion for that purpose, to file his plea, demurrer, or answer to the bill, in the clerk's office, on the rule-day next succeeding that of entering his appearance. In default thereof, the plaintiff may, at his election, enter an order (as of course) in the order-book, that the bill be taken pro confc.^so ; and thereupon the cause shall be proceeded in ex parte, and the matter of the bill may be decreed by the court at any time after the expiration of thirty days from and after the entry of said order, if the same can be done without an answer, and is proper to be decreed ; or the plaintiff, if he requiies any dis- covery or answer to enable him to obtain a pi'oper decree, shall be entitled to process of attachment against the defend- ant to compel an answer, and the defendant shall not, when arrested upon such process, be discharged therefrom, unless upon filing his answer, or otherwise complying with such order as the court or a judge thereof may direct as to pleading to or fully answering the bill, within a period to be fixed ])y the court or judge, and undertaking to si)eed the cause. liHle 10. When the bill is taken pro conj'csso ilic court may proceed to a decree at any time after the ex])iration of thirty days from and after the entry of the order to take \\\v bill pro confesso, and such decree rendered shall be deemed absolute, unless the court shall, at the same term, set asid(> the same, or enlarge (133) 134 EQUITY PLEADING. the time for filing the answer, upon cause sliown upon motion and affidavit of the defendant. And no such motion shall be granted, unless upon tlie payment of the cost of the plaintiff in the suit up to that time, or such part thereof as tlie court shall deem reasonable, and unless the defendant shall under- take to file his answer within such time as the court shall direct, and submit to such other terms as the court sliall dii'cct for the purpose of speeding of the cause. MAR YE V. STROUSE. ( Circuit Court of Nevada. 6 Sawyer, 204-220. 1880. ) Opinion by Hillyer, J. The motion for a new trial came up first regularly for hear- ing on the first Monday of March, and at that time the plaintiff appeared, and, without any objection to the notice, consented to a continuance. Admitting, what is doubtless correct, that the notice was insufficient, I still am of the opinion that this general appearance on the part of plaintiff must be considered a waiver of the want of due notice. In its nature it resembles the summons issued at the commencement of the suit, and a general appearance is a waiver of all irregu- larities in the service of a summons. [Note. — Only so much of this case is reported as relates to Equity Pleading and Practice.] O'HARA et al. v. MacCONNELL et al.. Assignees (93 U.S., 150. 187(3.) Appeal from the circuit court of the United States for the Western District of Pennsylvania. The facts are stated in the opinion of the court. Mr. Justice Miller delivered the opinion of the court. Michael O'Hara was adjudged a bankrupt December 9, 1867, and the appellee duly appointed assignees, to whom an assignment of his effects was made in due form. As such assignees they filed in the circuit court for the Western Dis- trict of Pennsylvania the bill in chancery on which the decree was rendered from which the present appeal is taken. The bill alleges that a conveyance of certain real estate made by said O'Hara and his wife Frances, on the tenth day of July, 1866, to William Harrison and G. L. B. Fetterman, in trust o'lIAKA ET AL. V. MAC L'UXXELl. KT A I,.. ASS K ;N !• I S. 1 ll") for the use of the wife, Avns a fraiul upon (.'ivditui's, niul [Tays that the deed be dechued void, and that O'llara, his wife, and Bail", her guardiau, bt^ decreed to convey the hnid to com- })huuants, that they may sell it for the benefit of O'Hara's creditors, free from the embarassnient created by said deed of trust. The bill also alleges that Mrs. O'llara is a miuoi\ and that A. jM. Barr is her legal guardian. A subpania was issued on the fifth day of April, 18(55), and served on the seventh on O'Hara, for himself and wife, and on Ban*; and on the seventh day of May following, without appearance and without answer by any defendant, the bill was amended, was taken as confessed, and a final decree rendered. This decree enjoined the defendants from setting up any claim to the land, and ordered all of them to convey and release the same to assignees; and in default of such conveyance \vithin thirty days, Henr}' Sproul was a])pointed commissioner to do it in tlieir name. A copy of this decree was served on the defendants May 10th ; on the 14th of June the order was complied with by a deed made by O'llara, his wife and Barr, which on its face pur{)orts to be in execution of the order, and for the consideration of one dollar. It will thus be seen that within less than five weeks from the filing of the bill, and without any actual service of the writ or other notice on her, a decree was entered against a woman who was both a minor and a feme covert, without the appointment of a guai-dian ad litem, without any appearance by her or for her, dejjriving her of fourteen acres of land now^ within the limits of the city of Pittsburg. It is from this decree that she appeals. By the thirteenth rule of ])ractice of the courts of equity of the United States, as it stood when the subpama in this case was served, a delivery of a copy to the husband was good, where husband and wife w^ere sued together ; but the rule was amended in this court in 1874, so as to require a ])ersonal service on each defendant, or by leaving a copy for each at his or her u.sual place of abode, with some adult member of the family. The service in the present case would not now be good, though it must be held to have been so at the time it was made. It would be very strange if a decree obtained under such circumstances could stand the test of a critical examination. Wq ;:re of the opinion that there are several errors suflicient to ju.stify its reversal. 136 EQUITY PLEADING. 1. It was tlie.dut}^ of the court, where the bill on its face showed that the party whose interest was the principal one to be affected by the decree was both a minor and a feme covert, and that no one appeared for her in any manner to protect her interests, to have appointed a guardian ad litem for that pur- pose. If neither her husband nor he who is styled her guar- dian in the bill appeared to defend her interest, it was the more imperative that the court should have appointed some one to do it. There is no evidence in the record except the statement in the bill that Dr. Barr was her guardian. If he was not, then tliere was no one served with notice whose legal duty it was to defend her. If he was her guardian there is no evidence of the precise nature of his duties or power, as there are several classes of guardians. As to the particular property now in contest, she had a trustee, in whom the title was vested for her use, and whose duty it would have been to protect her interest in it ; but, strangely enough, he was not made a party. It was therefore error in the court to proceed to a decree without appointing a guardian ad litem. 1 Daniell's Ch. Pr., 100, c. 4, sec. 9 ; Coughlin's Heirs v. Brent, 1 McLean, 175 ; Lessee of Nelson v. Moore, 3, id., 321. 2. If Mrs. O'Hara had been under no disability, it was error to have entered a final decree for want of appearance on the return day of the writ, or during that term. "According to the practice of the English chancery court," says Mr. Justice Washington, in Pendleton v. Evans' Ex'r., 4 Wash. C. C, 337, " a bill cannot be taken j^ro confesso after service of subpoena, and even after appearance, until all the processes of contempt to sequestration have been exhausted ; after which the bill is taken 2'>ro co)}fesso, and a decree passes which is abso- lute in the fii'st instance." He then comments on the prac- tice of the New York chancery court, which, instead of a pro- ceeding in contempt, required a rule to answer to be served on the defendant, and if this was not obeyed the bill might be then taken jrro confesso. He then adds : " The principle which governs the practice in both these courts is, that the defendant shall not be taken by surprise, but shall have sufficient warn- ing before a decree is entered against him by default." He then states the rules adojjted by the supreme court for the federal courts, as follows: "If the answer, the subpoena being returned executed, be not filed within three months after the day of appearance and bill filed, then defendant is o'lIARA liT AL. V. M AC CONNKLL KT AL., ASSIGNKKS. 137 to be ruled to answer, and, failing to do so, the bill may be taken for confessed, and the matter thereof decreed immeili- ately ; but this decree is only nisi, to be made absolute at the term succeeding that to which service of a coj)y of the decree shall be returned executed, uidess cause to the contrary bo shown." And in the case of Read v. Consequa, 4 Wash. C C. 180. where a bill on which an injunction had been allowed had remained unanswered, and without appearance of defendant, who had been duly served five years before, he refused to grant an order taking the bill pro covfcsw because it would be irreg- ular. What a contra.st to the speed with which the decree was entered in the case before us. Rules 18 and 19 of the equity practice as now exi.sting have modified those which are mentioned by Judge Washington, and, unless the defendant demur, jdead or answer, on or before the rule day next succeeding his appearance, the plaintiff may enter an order in the order book that the bill be taken pro confesso, and the matter thereof decreed at the next succeeding term. But in the case before us the final decree was entered on the day fixed for appearance, or, at most, at the same term. The standing rule now requires defendant to plead by the next rule day after appearance, which is the same as if a special rule were taken on him to do so. It is therefore clear that final decree could not be made even under the })resent rules, until the term of court next suc- ceeding the day of default. The remarks of Mr. Justice Washington show that these rules are not merely technical and arbitrary, but are made to prevent a defendant from losing his rights by surprise. 3. The legal title to the pro{)erty in question was held by Fetterman, in trust for Mrs. O'Hara. The trust was not a naked or dry trust; for he was empowered with her consent to sell it, and rcinve-st the |)roceeds on the same trusts, or to mortgage it, and with the money so raised purchase other real estate. How the decree can clear the property of this trust witliout having the trustee before the court is difficult to see. This was the object of the suit ; but how can it be made effectual for tliat pnr|.)ose in the absence of the person in whom the title is vested? W'e think, tlutl in a <-;isi> like this, where a woman 138 EQUITY PLEADING. under the double disability of coverture and infancy, has a trustee in whom the title of the controvei'sy is vested for her use, the court should luive I'cfuscd a decree until he was made a |)arty. It is said, that, after making the deed that the court ordered, the appellant is bound by it, and cannot now prosecute this aj^peal. The principle is unsound. The deed recites on its face that it is made under the order of the court. The parties must have either obeyed the order of the court, or taken ap- peal and given a supersedeas liond in a sum so large that they were probably unable to do it. " In no instance within our knowledge," says the court, in Erwin v. Lowry, 7 How. 184, " has an appeal or writ of error been dismissed on the assump- tion that a release of errors was implied from the fact that money or property had changed hands by force of the judg- ment or decree." If the judgment is reversed, it is the duty of the court to restore the parties to their rights. That was a case where the appellant received the money which by the decree he re- covered of the appellant, and is, therefoi'e, a stronger case than the present, as his action would seem to ratify the decree. About three years after this decree, appellants filed a peti- tion in the Circuit Court in the nature of a bill of review to set it aside. To this petition the appellees filed an answer, in which, among other matters, they set out a copy of another deed made by OTIara and wife the day after (as they allege) Mrs. O'Hara became of age, and they rely on that deed here as a bar to the appeal. It is sufficient now to say, as to that deed, that it is long subsequent to the decree, and apart from it. Its validity and force must stand or fall on its ow^i merits, wherever and whenever they may be tried, in any issue made on them. It has nothing to do with the appeal which regards the errors of the decree, and which the appellant has a right to have re- versed. When this is done, and slie is placed where she ought to be in that regard, the effect of the deed now under consideration may, perhaps, be decided on a supplemental bill, setting it up as a matter occurring since the commence- ment of the suit, or by the appellees dismissing their present suit and relying on the title acquired by that deed. Another equally conclusive reason why we cannot consider any other matters arising under the petition and answer is, o'hara et al. v. macconnkll kt al., assignees. 130 that there is no order, decree or other action of the court on tliein. The record closes with the bill and answer, the latter filed Mav 2o, 1S74. and the present appeal allowed August 4, 1874. We, therefore, take no notice of this subsequent pleading, but reverse the original decree, and remand the case to the Circuit Court for such further proceeding as to right and jus- tice may appertain. Decree reversed. CHAPTER VI. APPEARANCE AND PROCEEDINGS ON BEHALF OP DEFENDANT. Rule 17. The appearance-day of the defendant shall be the rule-day to which the subpoena is made returnable, provided he has been served with the process twenty days before that day ; otherwise his appearance-day shall be the next rule-day suc- ceeding the rule-day when the process is returnable. The appearance of the defendant, eitlier personally or by his solicitor, shall be entered in the order-book on the day thereof by the clerk. Rule 18. It shall be the duty of the defendant, unless the time shall be otherwise enlarged, for cause shown, by a judge of the court, upon motion for that pur{)ose, to file his plea, demurrer, or answer to tlie bill, in the clerk's office, on the rule-day next succeeding that of entering his appearance. In default thereof, the pluintitf ma}^ at his election, enter an order (as of course) in the order-book, that the bill be taken jpro confesso; and thereupon the cause shall be proceeded in ex parte, and the matter of the bill may be decreed by the court at any time after the expiration of thirty days from and after the entry of said order, if the same can be done without an answer, and is proper to be decreed ; or the plaintifif', if he re- quires any discovery or answer to enable him to obtain a proper decree, shall be entitled to {)rocess of attachment against the defendant to compel an answer, and the defendant shall not, when arrested upon such process, be discharged (140) EQUITY PLKADINO. 141 therefrom, unless ui)on lilini;- his aiiswei", or otherwise com- plying with such order as the court or a judge thereof m-.iy direct as to pleading to or fully answc^'ring the hill, within a period to he fixed hy the court or judge, and undertaking to speed the cause. liiile 40. A defendant shall not be bound to answer any statement or charge in the bill, unless specially and particularly interro- gated thereto ; and a defendant shall not be bound to answer any interrogatory in the hill except those interrogatories which such defendant is required to answer; and where a de- fendant shall answer any statement or charge in the bill to which he is not interrogated, only by stating his ignorance of the matter so stated or charged, such answer shall be deemed impertinent. December Term, 1850. Ordered, That the fortieth rule, heretofore adoi)ted and pro- mulgated by this court as one of the rules of practice in suits in equity in the circuit courts, be, and the same is hereby, re- pealed and annulled. And it shall not hereafter be necessary to interrogate a defendant specially and particularly upon any statement in the bill, unless the com})lainant desires to do so, to obtain a discovery. liule 44. A defendant shall be at liberty, by answer, to decline an- swering any interrogatory, or part of an interrogatory, from answering which he might have protected himself by demur- rer ; 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. liule 40. In every case where an amendment shall he made after an- swer filed, the defendant shall put in a new or sup})leniental 142 EQUITY PLEADING. answer on or before the next succeeding rule-day after that on which the amendment or amended bill is filed, unless the time is enlarged or otherwise ordered b}' a judge of the court ; and upon his defiiult, the like 2:»roceedings may be had as in cases of an omission to put in an answer. Utile 25. In order to prevent unnecessary costs and expenses, and to promote brevity, succinctness, and directness in the allegations of bills and answers, the regular taxable costs for every bill and answer shall in no case exceed the sum which is allowed in the State court of chancery in the district, if any there be ; but if tliere be none, then it shall not exceed the sum of three dollars for every bill or answer. Rule 20. Every bill sliall be expressed in as brief and succinct terms as it reasonably can be, and shall contain no unnecessary re- cital of deeds, documents, contracts, or other instruments, in h3£C verba, or any other impertinent matter, or any scandalous matter not relevant to the suit. If it does, it may, on excep- tions, be referred to a master, by any judge of the court, for impertinence or scandal ; and if so found by him, the matter shall be expunged at the expense of the plaintiff, and he shall pay to the defendant all his costs in the suit up to that time, unless the court or a judge thereof shall otherwise order. If the master shall report that the bill is not scandalous or im- pertinent, the plaintiff shall be entitled to all costs occasioned by the reference. Ittile 27. No order shall be made by any judge for referring any bill, answer, or pleading, or other matter or pi-oceeding, depending before the court, for scandal or impeitinence, unless excep- tions are taken in writing and signed by counsel, describing the particular passages which are considered to be scandalous or impertinent ; nor unless the exceptions shall be filed on or KQUITY rr, HADING. 143 before tlic next riilc-dny after tlie process on tlie l)ill shall Ito returnable, or alter the answer or pleading isliled. And such order, when obtained, shall be eon-sidered as aband(ine(l, unless the party obtaining the order shall, without any un- necessary delay, procure the nuister to examine and report for the same on or before the next succeeding rule-day, or the master shall certify that further time is necessary for him to complete the examination. Rale :i2. The defendant may at any time before the l>ill is taken fart of the bill shall be divided as conveniently as may be from each other and numbered consecutively 1, 2, 3, etc.; and the in- terrogatories which each defendant is required to answer shall be specified in a note at the foot of the bill, in the form or to the effect following, that is to say : " The defendant (A. B.) is required to answer the interrogatories numbered respectively 1, 2, 3," etc.; and the office copy of the bill taken by each defendant shall not contain any interrogatories except those which such defendant is so required to answer, unless such defendant shall require to be furnished with a copy of the whole bill. December Term, 1871. Amendment to 41s^ Equity Rule. If the complainant, in his bill, shall waive an answer under oath, or shall only require an answer under oath with regard to certain specified interrogatories, the answer of the defendant, though under oath, except such part thereof as shall be directly responsive to such interrogatories, shall not be evi- dence in his favor, unless the cause be set down for hearing on bill and answer only ; but may nevertheless be used as an affidavit, with the same effect as heretofore, on a motion to grant or dissolve an injunction, or on any other incidental motion in the cause ; but this shall not prevent a defendant from becoming a witness in his own behalf under section 3 of the act of Congress of July 2, 1864. Bule 30. No demurrer or plea shall be held bad and overruled upon argument, only because such demurrer or plea shall not cover so much of the bill as it might by law have extended to. 10 14 J EQUITY PLEADING. Mule 37. ^0 demurrer or plea shall be held bad and overruled upon -argument, only because the answer of the defendant may ex- tend to some part of the same matter as may be covered by such demurrer or plea. Hale 31. No demurrer or plea shall be allowed to be filed to any bill, unless upon a certificate of counsel, that in his opinion it is well founded in j^oint of law, and supported by the affidavit of the defendant ; that it is not interposed for delay ; and, if ^ plea, that it is true in point of fact. LANGDON V. GODDARD. (Circuit Court for New Hampshire : 3 Story, 13-25. 1843. ) Statement of Facts. — This cause was heard upon excep- tions to the answer of defendant Goddard to complainants' bill. The first exception was that a certain allegation on the ninth page of the answer was impertinent, and should be stricken out. The allegation in question was to the effect that the testatrix, Elizabeth Sewall, executed a codicil to her will on August 21, 1838, being moved thereto by the importunities of conn)lainants, and charging the complainants with, in ef- fect, dictating the codicil. The will and codicil in question had, prior to the filing of the answer, been duly admitted to probate by the proper court. The second exception was to a statement that he, defendant, had sought to procure Mr. Emer- son to effect a settlement of the disputes between him and complainants, and that he and Emerson had agreed upon terms, to which, however, com|)lainants would not afterwards adhere. This statement, it was insisted, was impertinent. The third exception was that defendant had not, to the best of his knowledge and belief, answered a certain interrogatory of plaintiffs. Opinion by Story, J. I am of opinion that all the exceptions to the answer are well taken, and ought to be allowed. The first exception turns \\\)o\\ the allegations in the answer therein referred to, by which an attempt is made by a side wind to impeach the LANGDON V. GODDAKD. 147 bona fides aiul due execution ol" the codicil to the will of Mrs. Sewall, and by implication to insinuate that it was procured by fraud and imposition. Now, it is well known that the courts of probate have a full and exclusive jurisdiction, as well in New llam[)shire as in Maine, over the probate of wills, and that their decree, attirming the validity of a will or codicil, and allowing the same, is conclusive u])on the subject-matter, and is not re-exam inable elsewhere. The present codicil has been duly admitted and allowed by the probate courts of both states. The allegation of the answer here excepted to is, therefore, at once impertinent and immaterial, and endeavors to cast a shade upon the transaction, which is not justifiable or excusable. It is not a matter which can be filed in contro- versy in the present suit, or admitted to proof. The second exception is to the allegation in the answer set- ting up an attempted settlement and arrangement, of the na- ture and terms of which no account is given, by the defendant with the plaintiifs, through the means of a professional friend, which was not accepted or adhered to by the ])laintitrs, and therefore failed of its purpose. What is this but to stuff the answer with immaterial and impertinent suggestions for tha purpose of giving a false gloss and coloring to the controversy? Besides, as the nature and terms of the proffered settlement and arrangement are nowhere stated, it is impossible for the court to see what possible bearing it could properly have upon the cause. The third exception is the insufficiency of the answer to the eighth interrogatory propounded In' the bill, and states the very words of that interrogatory. Tiiat interrogatory un- doubtedly was intended to refer to the tbllowing allegation in the bill, viz.: '' Your orators further say that thereafterwards the said Elizabeth frequently called u[)on the said Goddard to refund to her the amount of the said notes so sold by her to him, or retui-n the same, and that tlu^ said Goddard repeat- edly promised so to do. That on the 20th day of August, 1S3S, the said William (Joddard ])ropai'cd with his own hand an instrument purporting to be a codicil to the will of .said Elizabeth, and ]»rocured the said Elizabeth to sign the same, therein and thereby bequeathing to him the aforesaid notes of Floyd and Harris, and also all sums of money due from him to the said lillizabeth, which codicil was so signed by the said Elizabeth by inducement of the said Goddard, and by leason 148 EQUITY PLEADING. of the confidence subsisting between the said Elizabeth and the said Goddard, and was thereafterward revoked b}' the said Elizabeth, which codicil was, after its execution, carried awa}'- by the said William, and is now in his possession." It is cer- tainly not as pointed, full and precise as it ought to be to meet all the stress of the allegations of the bill. It does not inter- rogate as to the present possession by the defendant of that codicil, or as to what has become of it, and when he last saw it, and what were the exact purport and words thereof; nor does it call upon the defendant to produce it. Still, however, it is sufficient to call upon the defendant for a fair and full an- swer to the plain import and objects thereof. I cannot but consider the answer put in to this point as inexplicit and eva- sive, if it does not deserve the stronger imputation of being disingenuous. I shall therefore direct that the defendant put in a more full and direct answer to the interrogatory and alle- gation in the bill, applicable thereto, so that the justice of the case may on this point be fully presented to the court. I shall also give leave to the plaintiff to put additional interrogatories to the defendant applicable to this same allegation, so as to compel a direct and positive disclosure of the facts appertain- ing thereto. The defendant is to pay the costs of the hearing uj)on and allowance of these exceptions, which I shall direct to be taxed at $10. LIVINGSTON V. STOEY. (9 Peters, 632-662. 18.35.) Opinion by Mr. Justice Thompson. Statement of Facts. — The appellant, Edward Livingston, filed his bill of complaint in the district court of the United States for the eastern district of Louisiana, against the appellee, Benjamin Story, to set aside a conveyance made b}' him of certain lots of land in the city of New Orleans, and to be re- stored to the possession of said lots, alleging that the deed was given on a contract for the loan of money. Although in the form of a sale, it was in reality a pledge for the repayment of the money loaned, and calling for an account of the rents and profits of the property. To this bill the defendant demurred, and the court sustained the demurrer and dismissed the complainant's bill, and the cause comes into this court on appeal. It will be enough, for LIVINGSTON V. STORY. Ml) the purpose of disposing of the ([uestioiis which have heeu made in this case, to state only some of the leading I'aets which are set forth and stated in the YnW. The bill alleges that on or about the 25th of July, 1S;J2, the defendant and John A. Fort loaned to him, the complain- ant, the sum of $22,9o(), to secure the payment of which, with interest at the rate of eighteen per cent, per annum, he con- veyed to them a lot of ground in New Orleans with the build- ings and improvements thereon. That a counter letter or in- strument was, at the same time, executed by the other parties, by which they stipulated to reconvey the property on certain conditions. That the lot was covered with fifteen stores in an untinished state, and the object of the loan w'as to complete them. The property is stated to have been worth at that time $60,000, and is now worth double that sum. That the complainant, soon after the said transaction, left New Orleans, where he then resided, on a visit to the state of New York, expecting that during his absence some of the stores would have been finished, or in a state to let. That, on his return, he found that Story and Fort had paid $8,000 to a contractor, who had failed to finish the buildings, the rent of each of the three smallest of which would be the interest of $10,000 a year, when finished. A further time was requested for the payment of the money, which Story and Fort would not agree to, but upon condition that the property should be advertised for sale on a certain day named ; that the sum due should l)e increased from $25,000 to $27,000, which sum was made up by adding to the $25,000 the following sums : $1,500 for in- terest for the delay of four months, at eighteen per cent., $800 for auctioneer's commissions, $50 for advertising, and $200 arl)itrarily added without any designation ; and that he, the complainant, should annul the counter letter given to liim by Story and I'\)rt. That the com[)laiiuint, being entirely at the mercy of the said Story and Fort, consented to these terms, in ho|)es of being able to relieve himself before the da}^ fixed for the sale of his property ; but being disa})j)ointed, he was on that day, in order to obtain a delay of sixty days, forced to consent to sign a pjjpcr, by which it was agreed that the debt should be augmented to the sum of $27,830, and that if the same was not paid at the expiration of the sixty days, the property should belong to the said Fort and Story without any sale. The bill contains some other allegations of hardship 150 EQUITY PLEADING. and oppression, and alleges that the rents and profits of the propei'ty received by Fort and Story in the lifetime of Fort, and by Story since the death of Fort, amount, at least, to $60,000. The bill then prays that the said Benjamin Story may be cited to appear to the bill of complaint, and answer the interrogatories therein propounded. The defendant in the court below demurs to the whole bill, and for cause shows that the complainant has not by his said bill made such a case as entitles him, in a court of equity in this state, to any discovery from this defendant, touching the matters contained in the said bill, or any or either of such matters, nor to entitle the said complainant to any relief in this court, touching any of the matters therein complained of. The want of proper parties is also assigned for cause of demurrer. The court below did not notice the want of parties, but sustained the demurrer on the other causes assigned. The argument addressed to this court has been confined principally to the general question whether the district court of the United States, in Louisiana, lias equity powers ; and, if so, what are the modes of proceeding in the exercise of such powers. The great earnestness with which this power has been denied at the bar to the district court may make it proper briefly to state the origin of the district court of that state, and the jurisdiction conferred upon it bv the laws of the United States. When the constitution was adopted, and the courts of the Union organized, and their jurisdiction dis- tributed, Louisiana formed no part of this Union. It is not reasonable, therefore, to conclude that any phraseology has been adopted with a view to the peculiar local system of laws in that state. She was admitted into the Union in the year 1812; and, b}' the act of congress (2 Stats, at Large, 701), passed for that purpose (4 Laws U. S., 402), it is declared that there shall be established a district court, to consist of one judge, to be called the district judge, who shall, in all things, have and exercise the same jurisdiction and powers, which, by the act, the title whereof is in this section recited, were given to the district judge of the territory of Orleans. By the act here referred to for the jurisdiction and powers of the court (2 Stats, at Large, 283 ; 3 Laws U. S., 606), a district court is established to consist of one judge; and it declares that he shall, in all things, have and exercise the same jurisdiction LIVINGSTON V. STOKV. 151 and powers which avu by law gh'cn to, or may be excrci.scd by the judge of the Kentucky district. And, by tlie judiciary act of 1789 (1 Stats, at Largx^ 73 ; 2 Laws' U. S.,'G0), it is declared that tlie district court in Kentucky sliall, besides the juris- diction given to other district courts, have jurisdiction of all other cau.ses, except of appeals and writs of error, hereinafter made cognizable in a circuit court, and shall proceed theiein in the same manner as a circuit court. And such manner of proceeding is pointed out by the process act of 1702 (1 JStats. at Large, 275 ; 2 Laws LT. S., 299), which declares that the modes of proceeding in suits of common law shall be the same as are now used in the snid courts respectively, in jjursuance of the act entitled "An act to regulate process in the courts of the L'nited States ; " namely, the same as are now used and allowed in the supreme courts of the respective states (2 Laws L'. S., 72 ; 1 Stats, at Large, 93), and in suits of c([uity, and those of admiralty and maritime jurisdiction, according to the principles, rules and usages which belong to courts of equity and courts of admiralty respectively, as contradistinguished from courts of common law ; subject to such alteration by the- courts as may be thought expedient, etc. From this view of the acts of Congress it will be seen that, prior to the act of 1824, which will be noticed hereafter, Louisiana, when she came into the LTnion, had organized therein a district court of the United States, having the same jurisdiction, except as to appeals and writs of error, as the circuit courts of the United States in the other states. And that, in the modes of proceeding, that court was recjuired to proceed according to the principles, rules and usages which belong to courts of equity, as contradistinguished from courts of common law. And whether there were or not, in the sev- eral states, courts of equity proceeding according to such prin- ciples and usages made no difference, according to the con- struction uniformly adojitcd by this couiU In the case of Robinson r. Cam})bell, 3 Wlieat., 222, it is said that, in some states in the Union, no court of chancery exists to administer equitable relief. In .some of the.sc states courts of law recognize and enforce, in suits at law, all equitable claims and rights which a court of equity would recognize and enforce; and in others all relief is denied, and such equit- able claims and rights are to be considered as mere nullities at law ; and a construction, therefore, that Wduld aduj»t the 152 EQUITY I'LEADING. state practice in all its extent would at once extinguish in such states the exercise of equitable jurisdiction. That the acts of congress have distinguished between remedies at com- mon law and in equity, and that, to effectuate the purposes of the legislature, the remedies in the courts of the United States are to be at common law or in equity, not according to the practice of the state courts, but according to the principles of common law and equity, as distinguished and defined in that country from which we derive our knowledge of those ])rin- cijiles. So, also, in the case of the United States v. Howland, 4 Wheat., 114, the bill was filed on the equity side of the cir- cuit court of the United States in Massacliusetts, in which state there was no court of chancery ; and, in answer to this objection, the court says : " As the courts of the Union have a chancery jurisdiction in every state, and the judiciary act confers the same chancery powers on all, and gives the same rule of decision, its jurisdiction in Massachusetts must be the same as in other states." That congress has the power to establish circuit and district courts in any and all the states, and confer on them equitable jurisdiction in cases coming within the constitution, cannot admit of a doubt. It falls within the express words of the constitution : " The judicial power of the United States shall be vested in one supreme court, and in such inferior courts as the congress may, from time to time, ordain and establish." Article 3. And that the power to ordain and establish carries with it the power to prescribe and regulate the modes of proceeding in such courts admits of as little doubt. And, indeed, upon no other ground can the appellee in this case claim the benefit of the act of 1824. Session Laws, 56. The very title of that act is to regulate the mode of practice in the courts of the United States in the district of Louisiana ; and it professes no more than to regulate the ])ractice. It declares that the mode of proceeding in civil causes in the courts of the United States that now are or hereafter may be established in the state of Louisiana shall be conformable to the laws directing the mode of proceeding in the district courts of said state. And power is given to the judge of the United States court to make, by rule, such provisions as are necessary to adapt the laws of pro- cedure in the state court to the organization of the courts of the United States, so as to avoid any discrepancy, if any such LIVIX(iST()N W S'l()i;V. 1").'} should exist, bt'tweeii such staU; hiws ;iiul the l;i\\< ol' ihc United States. The desci'iptive terms hnc used, civil actions, are broad enough to embrace cases at law and in e(|uity ; and ma}' very fairly be construed as used in contradistinction to criminal causes. There are no nstrictive or cx|ilanatory words employed, limiting the terms to actions at law. They ap})ly equally to cases in equity; and il' there are any laws in Louisiana directing the mode of procedure in eijuity causes, they are adopted by the act of 1824, and will goyern the prac- tice in the courts of the United States. But tlie question arises. What is to be done if there are no equity state courts, nor any laws regulating the practice in equity causes? This question would seem to be answered by the cases already re- ferred to, of Robinson v. Campbell, 3 Wheat., 222, and The United States v. Howland, 4 Wheat., 114. And also by the case of Parsons v. Bedford, 3 Pet., 444. In the latter ca.se the court sa}' : " That the course of proceeding, under the state law of Louisiana, could not, of itself, have any intrinsic force or obligation in the courts of the United States organized in that state, except so far as the act of 1824 adopted the state practice ; that no absolute repeal was intended of the antece- dent modes of proceeding authorized in the courts of the United States under the former acts of congress." If, then, as has been as.serted at the bar, there are no equita- ble claims or rights I'ecognized in that state, nor any courts of equity, nor state laws r guJating the practice in equity causes, the law of 1824 does not apply to the case now before this court ; and the district court was bound to adopt the antece- dent mode of proceediiig authorized under the former acts of congress ; otherwise, as is said in the case of Robinson v. Campbell, the exercise of equitable jurisdictidii would be ex- tinguished in that state, because no equitable claims or rights which a court of equity would enforce are there recognized. And there being no court of equity in that state, does not pre- vent the exercise of equity jurisdiction in the courts of the United States, according to the doctrine of this court in the ca.se of The United States v. Howland, which aro.se in the state of Massachusetts, where there are no equity state courts. "\\'e have not been referred to any state law of Louisiana, es- tablishing any state practice in equity cases, nor to any rules ado])ted by the district judge in relation to .such ])ractice ; and we have some i-eason to conclude that no such rules exist. 154 EQUITY PLEADING. For, in a record now before us from that court, in the case of Hiriart v. Ballon, *.* Pot., loG, we find a set of rules purport- ing to have been adopted by the couil on the 14th of Decem- ber, 1(820, with the following caption : " (ieiieral rules for the government of the United States court in the eastern district of Louisiana in civil cases or suits at law as contradistin- guished from admi]-alty and equity cases, and criminal prose- cutions ; made in pursuance of the seventeenth section of the judiciary act of 1789, and of the first section of the act of con- gress of the 2()th of May, 1824, entitled, ' An act to regulate the mode of practice in the courts of the United States tor the district of Louisiana.' " And all other rules are annulled ; and these rules relate to suits at law and in admiralty only, and not to suits in equity. From which it is reasonable to infer that the district judge did not consider the act of 1824 as extending to suits in equity; and if so, it is very certain that the demurrer ought to have been overruled. For, according to the ordinary mode of proceeding in courts of equity, the matters stated in the bill are abundantly sufficient to entitle the complainant both to a discovery and relief; and by the demurrer, everything well set forth, and which was necessary to support the demand in the bill, must be taken to be true. 1 Ves. Sen., 42(1 ; 1 Ves. Jr., 289. And if any part of the bill is good, and entitles the com- plainant either to relief or discovery, a demurrer to the whole bill cannot be sustained. It is an established and universal rule of pleading in chancery, that a defendant may meet a complainant's bill by several modes of defense. He may de- mur, answer, and plead to different parts of a bill. So that if a bill for discovery and relief contains pro])er matter for the one, and not for the other, the defendant should answer the proper and demur to the improper matter. But if he demurs to the whole bill, the demurrer must be overruled. 5 Johns. Ch., 186 ; 1 Johns. Cas., 433. But if we test this bill by any law of Louisiana which has been shown at the bar, or that has fallen under our observa- tion, the demurrer cannot be sustained. The objection founded on the alleged want of proper parties, because the heir and residuary legatee of John A. Fort is not made a party, is not well founded. The bill states that in the year 1828, after the death of Fort, the defendant, Benjamin Story, took the whole of the property, by some arrangement with the l.niNCSTON V. STORY. lo5 licirs of Fort ; aiul that he over .since ha.s been, and is now, in the sole }>ossession thereof, and has received tlie iTnts ;ind profits of the same. This fact the deniui'rer admits. W'lierehy Benjamin Story became the sole party in interest. The causes of denuiiier assigned are general ; that the com- plainant has not, by his bill, made .such a case as entitles him, in a court of equity in that .state, either to a discovery or relief. In the argument at the bar there has l)een no nttempt to j)oint out in wliat resjiect the bill is defective, either in form or sub- stance, as to the discovery, if it is to be govei'iicd by the ordinai'v rules of pleading in a court of chancery. And if the objection rests upon the want of the right in the complainant to call upon the defendant for any di.scovery at all, the objec- tion is not sustained even by the laws of Louisiana. But on the contrary, it is expressly provided by a law of that state, that when any plaintiff shall wish to obtain a discovery from the defendant, on oath, .such plaintiff may insert in his peti- tion pertinent interrogatories, and may call upon the defend- ant to answer them on oath; and that the defendant shall distinctly answer to such interrogatories, provided they do not tend to charge him with any crime or offense against any penal law, neither of which has been pretended in this case. 2 Martin's Dig., 158. Nor has it been attempted to point out in what respect the bill of complaint is defective, either in form or substance, as to the matters of relief prayed. In this respect also, the bill, according to the ordinary course of proceeding in a court of chancery, is unobjectionable ; and indeed would l)e amply sufficient in the state courts, under the law of Louisiana ; which declares that all suits in the .supreme court shall be commenced by petition, addressed to the court, which shall state the names of the parties, their j)laces of residence, and the cause of action, with the necessary circumstances of places and dates ; and shall conclude with a prayer for relief adapted to the circumstances of the case. 2 IMartin's Dig., 148. These ar(> the essential requisites in an ordinary bill in chancery. It can cei'tainly not be pretended that it is any objection in the ca.se before us that the bill filed is called a bill of complaint, instead of a petition. The sufficiency of the objections, therefore, nnist turn upon the general question whether the distiict court of r>ouisiana has, by the constitution and laws of the United States, the 156 EQUITY I'J.IOADINO. same e([uity [juwci-s as a circuit couit of the United States has in t\u) other states of the Union ; and we think it has been alread}' shown that it has ; but that, according to the pro- visions of the act of 1824, the mode of proceeding in the exer- cise of such powers must be conformably to the laws directing the mode of practice in the district courts of that state, if any such exist ; and according to such rules as may be established by the judge of the district court, under the authority of the act of 1824. And if no such laws and rules ap[)licable to the case exist in the state of Louisiana, then such equity powers must be exercised according to the principles, rules and usages of the circuit courts of the United States, as regulated and prescribed for the circuit courts in the other states of the Union. The decree of the district court must accordingly be reversed, and the cause sent back for further proceedings. HAYES V. DAYTON. (Circuit Court for New York : 18 Blatchford, 420-426. 1880.) Opinion by Blatchford, J. Statement of Facts. — The bill in this case states that the plaintiff invented certain " improvements in ventilators, sky- lights, skylight turrets, conservatories and other glazed struc- tures and ventilating louvres," described in " several letters patent and re-issues thereof." It then avers that he obtained six several patents, Nos. 94,203 and 100,143, and 106,157, and 112,594, and 143,149, and 143,153 ; tliat he obtained re-issues of all of them, the re-issues being six in number, one of each (though it does not appear of which original any particular re-issue is the re-issue), the re-issues being number 8,597 and 8,674, and 8,675, and 8,676, and 8,688, and 8,689 ; and that, since the re-issues, the defendant has, without authority, in- fringed said several re-issues, and made, used and sold said in- ventions. The bill interrogates the defendant as to whether he has made and sold " ventilators, skylights, skylight turrets, conservatories and other glazed structures and ventilating louvres, and embraced within any or either" of tlie said "sev- eral letters patent and re-issued letters patent ; " also, in four several questions, as to whether lie lias made, sold or used what is claimed in each one of the four claims in re-issue No. 8,597, quoting it ; and the like as to each one of fifteen claims in re-issue No. 8,674, and of seven claims in re-issue No. 8,675, IIAYKS V. DAYTON. l')? and of two claims in re-issue No. S,(»7(), and of .'^even claims in re-issue No. 8,GS8, and of three claims in rc-issue No. 8,089, there being thirty-eight several claims thus inquired about. The bill prays for a recovery of the profits and damages from the said unlawful making, using and selling, by the defend- ants, of the said " im[)rovements in ventilators, skylights, sky- light turrets, conservatories and other glazed structures and ventilating louvres.'" The defendant denuirs to the whole bill, and in the demur- rer shows, for cause of demurrer, "that it a|)pears by the said bill that it is exhibited against this defendant for several and distinct matters and causes, in many whereof, as appears by said bill, the defendant is not in any manner interested or con- cerned, and which said several matters and causes are distinct and separate one from the other, and are not alleged in said bill to be conjointly infringed by said defendant. . . . By reason of the distinct matters therein contained, the complain- ant's bill is drav.n out to considerable length, and the defend- ant is compelled to take a copy of the whole thereof, and, by joining distinct matters together, which do not depend on each other, in the said bill, the pleadings, orders and proceed- ings will, in the progress of the said suit, be intricate and pro- lix, and the defendant be put to unnecessary charges in taking copies of the same." The defen(hint, " not waiving his said demurrer, but relying thereon," has put in, simultaneously, an answer to the whole bill. This demurrer does not use the word " multifarious." A bill is multifarious when it improperly unites in one bill, against one defendant, several matters perfectly distinct and unconnected, or when it demands several matters of a distinct and independent nature against several defendants in the same bill. The reason for the first case is that the defendant would be compelled to unite, in his answer and defense, different mat- ters, wholly unconnected with each other, and thus the proofs applicable to each would be apt to be confounded with each other, and delays would be occasioned by waiting for the pi-oofs respecting one of the matters, when the others might be fully ripe for hearing. The reason of the second case is, that each de- fendant would have an unnecessary burden of costs by the statement in the pleadings of the several claims of the other defendants, with which he has no connection. Story's Eq. PL, § 271. The demurrer in this case is intended to be a demur- 158 EQUITY PLEADING. rer for misjoining causes of suit against one defendant. Yet much of it is inapplicable to such a case, and is taken from a form which applies only to the case of a demurrer by one of two or more defendants who has no concern with causes of ac- tion stated against the other defendants, such a demurrer being really a demurrer for a misjoinder of parties. Story's Eq. PL, § 530, and note 3, where is to be found the form improperly used in this case. Yet there seems to be enough left, after re- jecting as surplusage the improper and unnecessary part, to raise the point intended. The demurrer, in regard to mis- joining causes of suit against the defendant, substantially avers that the bill is brought for several matters and causes which are separate and distinct one from the other, and are not alleged to be conjointly infringed by the defendant. This means that tlie patents sued on are distinct one from the other, and that they are not alleged to be conjointly infringed in any one article which the defendant has made or used or sold. This averment of the demurrer is true. Where there is a joinder of distinct claims between the same parties, it has never been held, as a general proposition, that they cannot be united, and that the bill is, of course, de- murrable for that cause alone. Nor is there any positive, in- flexil)le rule as to what, in the sense of courts of equity, constitutes a fatal multifariousness on demurrer. A sound discretion is always exercised in determining whether the subject-matters of the suit are properly joined or not. It is not very easy, a priori, to say exactly what is or what ought to be the true line regulating the course of pleading on this point. All that can be done in each particular case as it arises is to consider whether it comes nearer to the class of decisions where the objection is held to be fatal, or to the other class where it is held not to be fatal. In new cases the court is governed by those analogies which seem best founded in gen- eral convenience, and will best promote the due administra- tion of justice, without multiplying unnecessary litigation on the one hand, or drawing suitors into needless and oppressive expenses on the other. Story's Eq. PI., §§ 531, 539 ; Horman Patent Mfg. Co. v. Brooklyn'City R. li. Co., 15 Blatch., 444. We are not without cases on this subject, in suits on patents in this country. In Nourse v. Allen, 4 Blatch., 376, in 1859, before Mr. Justice Nelson, a bill on four patents was held good on demurrer, where it alleged that the machine used contained IIAYKS V. DAYTON. Ifj!) all the inii)rc)veinoiits in all the palt'iits. 'I'iio coui-t tlioii^lit that the convenience of both })arties as well as a saving- oi" ex- pense in the litigation seemed to l)e con^^ulted in embracing all the patents in one suit in such a case ; and that, although the defenses as respected the several improvements might be different and unconnected, yet the i)atents wcrr connected with each other in each infringing machine. In Nellis v. McLanahan, (i Fish. Pat. Cas., 28(). in isTo, before Judge McKennan, it was held that where a suit in ecjuity is brought for the infringement of .several ])atents for different imj)rovements, not necessarily embodied in the con- struction and operation of any one machine, the Ijill nnist contain an explicit averment that the infrniging machines contain all the improvements embraced in the several patents, or it will be held bad for multifariousness on demurrer. In Gillespie r. Cummings, o.Saw., 250, in J 874, before Judge Sawyer, the bill was founded on two patents for the manu- fticture of brooms. There was a demurrer on the ground of the joinder of two separate and distinct cau.ses of action. It a})pearing by the bill that the defendant's broom, in inii-ing- ing, nuist be an infringement of both of the patents, and that there was, therefore, a common })oiiit to be litigated, and much of the testimony must, from the nature of things, be a])pHcable to both of the })atents, the bill was held good. In Horman Patent Mfg. Co. v. P>rookiyn City R. R. Co., 15 Blatch., 444, in 1879, before Judge Benedict, a bill in equity on two patents alleged that the defendant was using machines containing in one and the same apparatus the inventions .se- cured by each of the two patents. It was demurred to oil the ground that it did not allege that the devices were u.sed con- jointly or connected together in any one a]>paratus, but the demurrer was overruled. The court held tlial, as the bill did not show the controversy to be of such a chai-acter that prejudice to the defendant would result from the joinder in one action of the cau.ses of action joined, the bill must be sustained. The court was of opinion that, in the absence of any other fact, the circumstance that the two transactions complained of were the use, in a single machine, of two ])atented devices connected with the mechanism of the machine, warrant ed the inference that no prejudice would result to the defendant from the joinder of the two transaction.s. The decisions above cited all tend in one direction. The 160 EQUITY PLEADING. decision in Case v. Redfield, 4 McLean, 526, if limited, as it apparently ought to be, to the case of an original patent, and of another patent granted in terms as an improvement on the original patent, is not like the present case as shown by the bill. It is a case difficult to understand, and if it were like the present case in its facts, whatever there is in the decision of it tending to sustain the bill in this case is opposed to all the other cases on the subject. The present case appears to be a suit on thirty-eight claims in six different patents. There is nothing to show that any two or more of the patents are in fact, or are capable of being, used in making a single structure, much less that the defend- ant has so used them. So far as the bill shows, the causes of action are as distinct as the patents. The patents are not shown to be connected with each other in any infringing machine, or to be used at the same time in any infringing machine. The controversy in this suit appears, from the bill, to be of such a character that prejudice will result to the de- fendant from being called upon to defend in one suit against thirty-eight claims in six different patents, no two of which claims, so far as the bill shows to the contrary, are employed in any one machine. On this ground the bill must be held bad. The plaintiff contends that the putting in of an answer to the whole bill is a waiver of the demurrer. Rule 32 in equity permits a demurrer to a part of a bill, a plea to a part, and an answer as to the residue. If, impliedly, that rule forbids a demurrer to the whole bill, and at the same time an answer to the whole bill, the plaintiff's remedy is by moving to strike out either the answer or the demurrer, or to compel the de- fendant to elect which he will abide by. By going to argu- ment on the demurrer the plaintiff waives the benefit of the objection now taken, if otherwise he would have it. More- over, rule 37 in equity provides that " no demurrer or 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 demurrer or plea." This rule was first made in March, 1842, to take effect August 1, 1842. 17 Pet., Ixvii. There was no such rule in the prior rules of March, 1822 (7 Wheat., v), although rule 18 in such prior rules was the same as the above present rule 32. Under the rules of 1822, not only had it been held (Ferguson v. ATWii.i. V. ki;i;i;ktt. l(il O'llai'i'a, IVt. (". ("., 4t);5) that, wliort' tlicic was a jilca ,i;<>iii^ to the whole hill anosition were procured by another, and also an equitable title in one person to the labors of another when the relations of the parties are such that the former is entitled to an assign- ment ol' tlie [)roduction. But, to constitute one an author, he must, by Ids own intellectual labor applied to the materials of his composition, produce an arrangement or compilation new in itself Gray v. Russell, 1 Story, 11. And the rules of the common law and of equity are the same upon this subject. Gary v. Longman, 1 East, 358 ; Say re v. Moore, id., 301, note ; Jeremy's Eq., 322. The title to road-books, maps, etc., rests upon this principle (2 Story's Eq. Jur., § 940) ; and the cases cited bv the plaintiff's counsel have relation to new produc- tions ai'ranged or conjpiled from materials before known or obtained by others for the author, and not to the appro]:)ria- tion by copyright of those materials in the same state in which they are furnished. If, therefore, the plaintif1''s title rested only upon the alle- gation referred to, we should hold the bill to be defective on general demurrer. But we find repeated averments in the bill to the effect that " he made many alterations of and additions to the said music " — that " he added new matters of his own, not in the original opera" — that he affixed a copy of the record on the title-page "• of each piece of nnisic composed, arranged and adapted by him for publication" — and that a copyright was taken out for sucli pieces " as arranged, ada])ted and published by the plaintiff, with the new titles and orig- inal matter introduced therein by him," whereby he became entitled to vend the music " as arranged and adapted by him, and to the original matter introduced by him therein ; " and the bill charges the defendants with having sold such music " printed from and in exact imitation of the music so arranged and adapted and published by the plaintiff, with the original matter introduced tlierein by him, and witli his titles to some ATwiLi, V. ki:ki{i:tt. KJo of such pieces of nuisie." 'I'hese alleiiiitions aiiiouiit (o an assertion of authorship in terms sufficiently explicit and full to constitute a pei'fect title at law, /and, the facts beinu' ad- mitted by the demurrer, we must hold the right of the j»laintill established upon these averments, notwithstanding tlieir de- fectiveness and their inconsistency with t)thers contained in the bill. Mitford's PI., 212. Such imperfect pleading is matter of form and can be taken advantage of only by special demurrer. 'J'he general demurrer in this behalf, must, there- fore, be overruled. Veri)lank r. ("aines, 1 Johns. Ch., 57 ; Higinbotham v. Ikirnet, 5 id., 184 ; Kuypers v. The Reformed Dutch Church, 6 Paige, 570. 2. The discovery prayed for is to aid the plaintiff in his suit at law prosecuted against the defendant Galusha, and the aver- ment in the bill is that he has commenced an action oi' (respafts against that defendant for the violation of his co})yright. The demurrer raises the question whether the bill alleges such a suit at law as will aflbrd foundation for the discovery sought, no relief consequent on the discovery being prayed for. It is clear that the plaintiff has adopted a form of action at law which cannot be supported. The English statute of 54 George 3, section 2, gives specifically an action on the case as the rem- edy for the violation of a co})yright. Our act (4 IT. 8. Stat, at Large, 438) only indicates the form of action wlien a maiui- script is published without the consent of the author (§ U), or when a suit is brought to recover the pecuniary penalty given b}' the sixth section. On general principles of law, however, it is clear that trespass cannot be brought for an injury merely consequential in its character, unaccom})anied by force as against tlie person or property, or by wi'ongful intermeddling with the possession of pro}>erty. 1 Chitty's PI., ^'2(^. 127. The act of 8 Anne, chaj)ter 19, did not designate the form of action, yet no doubt was ever expressed that case was the appropriate one. lieckford i\ Hood. 7 T. R., ()1() ; Oary v. Longman, 1 P]ast, 358; Roworth r. Wilkes, 1 Campb., *,)4. To obtain a discovery in aid of a suit at law thi' bill must show it to be necessary for the plaintiff, and that, when made, it can be used to his advantage. Jeremy's Kq., IGI ; Story's Eq. PI., §§ 3P.», 321. It necessarily follows, from these prin- ciples, that a discovery will not be decreed in aid of an action at law, where it is manifest that the plaintiff cannot avail himself of it in the suit he is attemj)ting to prosecute. It is. 166 EQUITY PLEADING. perhaps, also to be regarded as a substantive defect in the bill that it seeks a discovery from three defendants to aid a suit instituted against one alone. In so fer, then, as the mainte- nance of the bill depends upon the plaintiff's right to a dis- covery, we think it defective in substance, and bad on general demurrer. This bill, however, prays for an injunction, and, making title on its face in the plaintiff to the copyright set forth, and showing a wrongful and wilful violation of the copyright by the defendants, and serious injuries inflicted by and appre- hended from such violation, it is sufficient in substance and form to entitle the plaintiff to an injunction. This relief is not dependent upon the discovery prayed, but rests on the equities set forth in the bill, and may be refused or granted ir- respective of the discovery. A general demurrer to the whole bill takes exception, therefore, to this branch of it, and the principle of equity pleading is universal that a general denmrrer to the whole bill must be overruled if any indepen- dent part of the bill is sufficient. Higinbotham v. Burnet, 5 Johns. Ch. R., 184 ; Kuypers v. The Reformed Dutch Church, 6 Paige, 570 ; Story's Eq. PL, § 443. The formal protestation accompanying the demurrer is of no avail to protect it against this defect, as it cannot serve the purpose of a plea or answer, or form an excuse for not putting in the one or the other. Story's Eq. PI., §§452, 457, 458. We think, therefore, that the general demurrer must be overruled on both points. As faults in pleading have occurred on both sides, each party may amend without paying costs to the other. BRANDON MANUFACTURING COMPANY v. PRIME. (Circuit Court for New York : 14 Blatchford, 371-375. 1878.) Opinion by Wheeler, J. Statement of Facts. — This cause has been heard on the several demurrer of defendant Strong, and joint demurrer of defendants Prime, Meacham and Luce to the cross-bill. The causes of demurrer assigned are the same in each. They are, in substance, that this court has not jurisdiction, because the court of chancery of the state had acquired prior jurisdic- tion on a bill brought by the orator in the cross-bill, there, for the same relief; that some of the relief prayed is not cogniz- able in equity ; that some of the subjects of the cross-bill are BRANDON MANUFACTURING COMPANY V. IMUMK. 1 G7 not the same as those of the original hill ; and that Strong and another, made parties to the cross-bill, were not parties to the original bill. Jiotli are demurrers to the whole bill. The orators in the original bill commenced the litigation involved in this court, and compelled the oraior in the cross- bill to come here and join in it. Having brought it here, they have no right to say that the whole or any part of it bo- longs anywhere else. If the cross-bill is appropriate to the original, it must relate to the subjects of it and embrace a part, at least, of the litigation introduced by it, so that by filing the cross-bill the orator in that has merely met those in the original where called upon by them to meet them. For this reason a plea of jurisdiction in another court is not a good plea to a cross-bill. 2 Dan. Ch. Vv. (4th Am. ed.), 636 ; Wel- ford's Eq. PI., 229 ; Ld. Newburg /;. Wren, 1 Vern., 220. And for the same reason it is not necessary to show, in a proper cross-bill, that the relief sought Ijy it is cognizable in equity. Story's Eq. PI., § 399. It has not been claimed in argument, and could not suc- cessfully be claimed, but that this cross-bill relates to the sub- ject of the original in some respects, nor but that some of the relief prayed in the cro.ss-bill is properly prayed. And it follows that some of it is proper to be answered, in some form, by some of the parties ; and that some of it may not be is no good! reason for not answering what should be answered. As the demurrers are to the whole, and a part clearly should be ans- wered, and the demurrers must be overruled or sustained as. a whole, as to the causes relating to jurisdiction and relief, they must be overruled. So far as the defendants Prime, Meacham and Luce are con- cerned, it would be sufficient to say, as to the other causes of demurrer, that, because other parties are improperly called upon to answer the cross-bill in this form, it is no good reason why they, who are proj)erly called upon to answer it, should not do so. But if the others are properly called upon to answer it, a fortiori, they are and should answer it. The question hereupon is merely whether the cross-bill should be answered at- all or not by these other ])arties. That depends, of course, u})on whether the subjects of it are so pre- sented here by it that they are properly called upon to answer it in the form in which they are presented. The original bill sets forth, in substance, that the orators in that have a patent 1G8 EQUITY PLEADING. that the orator in tlie c-ross-bill is iiifringiiio-, and prays ajDpro- priate relief. The cross-bill sets forth that the defendant Strong had the record title to the patent, and the orator the equitable title to it, and that the orators in the original bill acquired Strong's title with notice of the outstanding equity, and were endeavoring to assert it against the equitable title, and [)rays restraint and a conveyance. It is unquestionably the proper office of a cross-bill to afford relief in such a case if the case is made out. Story, Eq. PI.. § 301 ; Calverley v. Wil- liams, 1 Ves. Jr., 210. A cross-bill is like an original bill, except that it must rest on what is necessary to the defense of an original l)ill. In an original bill, brought by the orator in the cross-bill for the same relief, there could be no fair question but that these new parties, of whom Strong is one, would be proper parties. In this original bill, as it is framed, these do not appear to be necessary parties, but when the facts set up in the cros.s-bill appear they become so. Following the ordinary rule, when the orator in the cross-bill resorts to it for defense and relief, and makes it appear that they are not only proper but necessary parties to the litigation, that orator not only might, but ought, to make them parties. If there were no authorities and was no practice on the subject, on principle that would seem to be the proper course. That the practice in this state, which professes to follow the English chancery practice, the same that is followed in this court would warrant making him a party, is well known and aj)pears in the state reports. Blodgett v. Hobart, 18 Yt., 414. It does not appear expressly from such English reports or text-books as have been examined what the actual practice in such cases there has been. In this country, in Curd v. Lewis, 1 Dana, 351. a. decree was reversed for the reason that an assignor of the sub- ject of litigation in an original and cross-bill was not a ])arty to either, and should have been made a party to the cross-bill, and that he might be made such a party. Wickliffe v. Cla}^, id., 585, was heard by consent only, without making a party, that by the cross-bill appeared necessary, a new party by the cross-bill. In Sharp v. Pike, 5 B. Mon., 155, a new party was added by cross-bill against his own express objection. In Walker v. Brungard, 13 S. & M., 723, new parties were added and new matters brought in by cross-bill and heard without objection. In dispo.sing of the case, the chancellor, delivering the opinion of the court, .said that, if they had been objected BAII.KY V. WIMdIIT. 1 (")'.> to, the iK'W niatk'i's would all have Ik-cii kcjit out, witliDUt say- ing that the now {)artio.s uoiikl hav(> hern. In Colters r. Hank of Georgia, 24 Ala., 37, it was ('N])ressJy hchl that new jjartics should be added hy ei'dss-hill, when so intercslcd in the litiga- tion involved by it as to l)e proper i)arties to it. Opposed to all this, there is the remark ol" Mr. .lustiei^ Cur- tis in Shields /'. Harrow, 17 How., 130, and tlir reasons given by him in support of it, to the effect that new parties cannot in any case properly be added by cross-bill, without citing any anthority for it. and books and cases that have followed that remark without citing any other authority. That i)reci.se ut in controversies alTecting citizens of other states, and in no degree arising from local regulations, as for instance foreign contracts of a commercial nature, I think that it can hardly be maintained that the laws of a state to which they have no reference, however narrow, injudicious and inconve- nient they may be, are to be the exclusive guides for judicial decision. Such a construction would defeat nearly all the ob- jects for wliich the constitution has pi-ovided a national court. But it is contended that whether the dischai'gc of Monroe, Snow & Monroe be or be not a complete bai', they and their assignees ought to have been made parties to the j^resent suit. Let us consider tliis point. It is a general rule, that every person interested in the subject-matter should be made a partv to the bill. Mitf. ri. Ch., 145; Coop. PI. Ch., 33. Therefore, where there is a joint, or joint and several contract, it is laid down that the plaintiff must bring each of the debtors before the court. The reasons assigned for the rule are, that the debtors are entitled to the assistance of each other in taking the account, and to mutual conti'ibution upon excess of pay- ment beyond their respective shares. J>ut where the reasons cease, the rule ceases also, and therefore, if the demand be ad- mitted, and there can be no effectual contribution from the other ])arties, it is not allowed to prevail (Madox v. Jackson, 3 Atk., 40C)) ; and in cases of joint and several contracts, the rule itself has not stood without conti-adiction. Collins v. Griffith, 2 P. Will., 313 ; S. C, 2 Eq. Abr., LS8, pi. 2. The rule has been relaxed where the })arties before the court were the only solvent j^ersons, and admitted the debt (3 Atk., 400; 2 Dick., 738) ; where the absent party was beyond the process of the court (Pre. Ch., 83 ; Darwent V. Walton, 2 Atk., 510) ; and where he stood in the situation of a mere surety (3 Atk., 40G) ; though it njigiit be otherwi.se, if he wei'e a co-surety. Angerstein v. Clark, 2 Dickens, 738. It is also a general rule, operating by way of exception on the former, that no one need be made a party, against whom, if brouglit to a hearing, the jjlaintiff can have no decree. Therefore, on a bill by creditors or jiurcha.sers against tlie assignees of a bankru})t, it seeii}«! now settled that the bank- 174 EQUITY PLEADING. rupt himself need not be made a party, though it was formerly otherwise. 2 Vern., 32 ; 3 P. Will, 311, note I; Collet v. Wollaston, 3 Bro. Rep., 228. Let us now apply these rules to the present case. The bill is brought to charge the executors of a deceased partner, hav- ing assets, with a joint debt, which at law survived against the firm of Monroe, Snow & Monroe. The ground of equitable interference is, that the surviving partners are certificated insolvents ; and whatever may have been the doubts as to this branch of chancery jurisdiction in former times, it has been gradually settled, and is now placed beyond all con- troversy. Lane v. William.?, 2 Vern., 242 ; Heath v. Perceval, 1 P. W., 682 ; Simpson v. Vaughan, 2 Atk., 31 ; Bishop v. Church, 2 Ves., 101, 371; Daniel v. Cross, 3 Ves. Jr., 277; Thomas v. Frazer, 3 Ves. Jr., 399; Burn v. Burn, 3 Ves. Jr., 573 ; Stephenson v. Chi.swell. 3 Ves. Jr., 566. In cases where a suit is brought against executors on other grounds, it seems clear that the rule that all surviving co- obligors should be parties in general prevails. 2 Vent., 348 ; 3 Atk., 406. Shall it be permitted to prevail, where no relief can be given against the co-obligors? Shall a cer- tificated bankrupt, who is a surviving partner, be joined with the executors, although no remedy can be effectually had in the suit against him? No authority has been adduced exactly in point. The case of Ashurst v. Eyre, in 2 Atk., 51, was supposed at first to support the affirmative ; but it is very clear, upon a further examination of that case, as corrected in 3 Atk., 341, that no such question could have occurred, as the parties appear all to have been solvent. There is obviously a mistake in what is imputed to Lord Hardwicke in speaking of this case in 3 Atk., 406. In no case where relief has been sought against the repre- sentatives of a deceased partner, on the ground of bankruptcy of the surviving partner, have I been able to discover that the bankrupt liimself or his assignees have been made parties. On the contrary, if the reports can be relied on as evidence, the bill has been uniformly against the representatives alone. This very silence, in cases so strenuously and ably argued, affords a strong presumption of the practice and the law of the court. There seems, indeed, good reason why they should not be made parties, because the bankrupt may plead his cer- tificate in bar without further answer, and the assignees are VAN HKl.MSDYK V. KANK. 175 bound to ap{)ly the j)ropcrty in their hand.^, accoi. When the same solicitor is employed for two or more de- fendants, and separate answers shall be filed, or other pro- ceedings had, by two or more of the defendants separately, costs shall not be allowed for such separate answers, or other proceedings, unless a master, upon reference to him, shall certify that such separate answers and other proceedings were necessary or proper, and ought not to have been joined together. Mule 35. If, upon the hearing, any demurrer or plea shall be al- lowed, the defendant shall be entitled to his costs. But the court may, in its discretion, upon motion of the plaintiff, allow him to amend his bill, upon such terms as it shall deem reasonable. Bute ,34. If, upon the liearing, any demurrer or plea is overrcled, the plaintiff' shall be entitled to his costs in the cause up to 12 178 EQUITY PLEADING. that period, unless the court shall be satisfied that the de- fendant has good ground, in point of law or fact, to inter- pose the same, and it was not interposed vexatiously or for delay. And, upon the overruling of any plea or demurrer, the defendant shall be assigned to answer the bill, or so much thereof as is covered by the plea or demurrer, the next suc- ceeding rule-day, or at such other period as, consistently with justice and the rights of the defendant, the same can, in the judgment of the court, be reasonably done ; in default whereof, the bill shall be taken against him p'o confesso, and the matter thereof proceeded in and decreed accordingly. Mule 3S. Tf the plaintiff shall not reply to any plea, or set down any plea or demurrer for argument on the rule-day when the same is filed, or on the next succeeding rule-day, he shall be deemed to admit the truth and sufi^iciency thereof, and his bill shall be dismissed as of course, unless a judge of the court shall allow him further time for that jiurpose. Rule 0,3. Where exceptions shall be filed to the answer for insuffi- ciency, within the period prescribed by these rules, if the de- fendant shall not submit to the same and file an amended answer on the next succeeding rule-day, the plaintiff shall forthwith set them down for a hearing on the next succeeding rule-day thereafter, before a judge of the court, and shall enter, as of course, in the order-book, an order for that pur- pose ; and if he shall not so set down the same for a hearing, the exceptions shall be deemed abandoned, and the answer shall be deemed sufficient; ])rovided, however, that the court, or any judge thereof, may, for good cause shown, enlarge the time for filing exceptions, or for answering the same, in his discretion, upon such terms as he may deem reasonable. EQUITY PLEADING. 170 liule 06. Whenever the answer .of the defc^ndant sliall not be ex- cepted to, or shall be adjudged or deemed .sufficient, the plaintiff shall file the general replication thereto on or before the next succeeding rule-day thereafter; and in all cases where the general replication is filed, the cause shall be deemed, to all intents and purposes, at issue, without any re- joinder or other [Jeading on either side. Tf the plaintiff shall omit or refuse to file such rej^lication within the prescribed period, the defendant shall be entitled to an order, as of course, for a dismissal of the suit ; and the suit shall there- upon stand dismissed, unless the court, or a judge thereof, shall, upon motion, for cause shown, allow a replication to be filed nunc pro tunc, the plaintifi' submitting to speed the cause, and to such other terms as may be directed. liule 47. In all cases where it shall appear to the court that persons, who might otherwise be deemed necessary or proper parties to the suit, can not be made parties by reason of their being out of the jurisdiction of the court, or incapable otherwise of being made parties, or because their joinder would oust the jurisdiction of the court as to the parties before the court, the court may, in their discretion, proceed in the cause without making such persons parties ; and in such cases the decree shall be without prejudice to the rights of the absent jiarties. liule 64. If, at the hearing, the exceptions shall be allowed, the de- fendant shall be iMund to j)ut in a full and comjdotc answer thereto on the next succeeding rule-day ; otherwise the plaintiff shall, as of course, be entitled to take the bill, so far as the matter of such exceptions is concerned, as confessed, or, at his election, he may have a writ of attachment to compel the de- fendant to make a better answer to the matter of llic cxccp- 180 EQUITY PLEADING. tions ; and the defendant, when he is in custody upon such writ, shall not be discharged therefrom but by an order of the court, or of a judge thereof, upon his putting in such answer, and complying with such other terms as the court or judge may direct. BROOKS V. BYAM. (Circuit Court for Massachusetts : 1 Story, 296-307. 1840. ) Statement of Facts. — Bill in equity for an injunction against the further prosecution of a suit at law brought by present defendants against present plaintiff. Plaintiff excepts to the answer of one of the defendants. Opinion by Story, J. The question arising in this case is upon the exception taken by the plaintiff in equity to the answer of Prentiss Whitney, one of the defendants, " because, in stating in his answer what he has been informed of by Byam (another de- fendant), he does not say whether he actually believes the same to be true." Ceitainly this exception is taken in a form and manner entirely too general to be upheld by the court. The exception should have stated the charges in the bill, and the interrogatory applicable thereto to which the answer is ad- dressed, and then have stated the terms of the answer verba- tim, so that the court without searching the bill and answer throughout, might at once have perceived the ground of the exception and ascertained its sufficiency. It is very properly observed by the vice-chancellor, Sir John Leach, in Hodgson V. Butterfield, 2 Sim. & Stu., 236, that, "if the plaintiff com- plains that a particular interrogatory of the bill is not an- swered, he must state the interrogatory in the very terms of it, and cannot impose upon the court the trouble of first deter- mining whether the varied expressions of the interrogatory and the exception are to be reconciled." See, also, Gressley on Evid., 21. To which it may be added, that the same rule applies in respect to the necessity of stating the charge or fact in the bill on which the interrogatory is founded ; for, if the interrogatory be irrelevant to the matters charged in the bill, the defendant need not answer the interrogatory at all. Mit- ford, Eq. PI. by Jeremy, 45 ; Cooper, Eq. PL, 12 ; Gilb. For. Roman, 91, 218 ; Story on Equity Plead., § 36 ; Gresley on Evid., 17 to 20, Am. edit., 1837; Story on Equity Plead, § BROOKS V. in'AM. ISI 853; Harrison, Vh. Pract. by Newlaiid, eh. ol, }). IM. The court ought, therelbre, without search iiij^ through the whole bill, from the form of the exception, to luive the nuiteriuls fully before it by which to ascertain at once its comj)etency and propriety. In this respect the exception is in itself insuf- ficient and exceptionable. The objection, however, has not been insisted upon at the bar. Nothing is more clear in principle than the rule that, in the case of an interrogatory pertin.ent to a charge in the bill, requiring the defendant to answer it " as to his knowledge, re- membrance, information and belief" (which is the usual foi'ui- ulary), it is not sufficient for the defendant to answer as to his knowledge; but he must answer also as to his information and belief The plain reason is that the admission may be of use to the plaintiti' as proof if the defendant should answe?" as to his belief in the affirmative without qualification, Thus, although a defendant should state that he has no knowledge of the fact charged, if he should also state that he has been in- formed and believes it to be true, or simpl}' that he believes it to be true, without adding any qualification thereto, such as that he does not know it of his own knowledge to be so, and therefore he does not admit the same, it would be taken by the court as a fact admitted or proved ; for the rule in equity gen- erally (although not universally) is that what the defendant believes the court will believe. 2 Daniell, Chan. Prac, 257; id., 402; Gresley on Evid., 19, 20; Potter v. Potter, 1 Yes., 274 ; Garth v. jrickson. Ves., 37, 38 ; Htory on Eq. Plead., § 854. The rule might, perhaps, be more exactly stated as to its real foundation by saying that wliatever allegation of fact the defendant does not choose directly to deny, but states his be- lief tiiereof, amounts to an admission on his part of its truth, or that he does not mean to put it in issue as a matter of contro- versy in the cause. But a mere statement by the defendant, in his answer, that he has no knowledge that the fact is as stated, without any answer as to his belief concerning it, will not be such an admission as can be received as evidence of the fact. 2 Daniell, Ch. Pr. 257; id., 402; Coop. Eq. PI., 814; Harris, Ch. Pract. by Newl., ch. 31, p. 181. Such an answer is insufficient ; and, therefore, the defect proj^erly constitutes a matter of exception thereto, since it deprives the plaintiff of the benefit of an admission to which he is justly entitled. Ibid. However, courts of equity do not, in this respect, act 182 EQUITY PLEADING. with rigid and technical exactness as to the manner in which the defendant states his belief or disbelief; if it can be fairly- gathered from the whole of tliat part of the answer what is, according to the intention of the defendant, the fair result of its allegations. 2 Daniell, Ch. Pr., 257 ; Am hurst v. King, 2 Sim. & Stu., 183. It is obvious that, in answers as to the information and be- lief of the defendant, there may be, and, indeed, ordinarily will be, partial admissions and partial denials of every shade and character, some of which may be delivered in terms of great ambiguity and uncertainty, and some mixed up with various qualifications and attendant circumstances. Gresley on Evid., 2d edit., 1837. No general rule, therefore, can be laid down which will govern all the different classes of cases which may thus arise as to the sufficiency or insufficiency of an answer in this respect. A man may have an undoubting belief of a fact, or he may disbelieve its existence, or he may believe it highly probable, or merely probable, or the contrary, or he may have no belief whatsoever as to it. In each of these cases he is bound to answer conscientiously as to the state of his mind in the matter of his belief; and if he does, that is all which a court of equity will require of him. If a man truly states that he cannot form any belief at all respecting the truth of the fact or information, that is sufficient, and it puts the plaintiff upon proof of it. If, on the other hand, the defendant should state (as in the present case the defendant does in effect state) that he " has no knowledge, information or belief that the fact or information inquired about is not true," or if he states (as in the present case) that he has been informed by a party and verily believes, that such party did not possess any knowledge, information or belief of the fact w^hich the interrogatory points out, — in each of these cases it seems to me that the answer, if expressive of the true state of mind of the defendant, might, at least for some purposes, be held sufficient. But then, if such language were unaccom- panied by any other qualifications or explanations, I should understand that the defendant did mean to assert his belief of the truth of the information or statement of fact, because, if he had no knowledge, information or belief that it is not true, he must be presumed to give credit to it ; and if he did not intend so to be understood, it would be his duty to say in express terms that he had no belief about the matter; and BROOKS V. BY AM. 183 he ought not to bo allowed to shelter himself behind equiv- ocal or evasive or doubtful terms, and thereby to mislead the plaintiff to his injury. And this leads me to remark, and it is the real and only point of difficulty which 1 have felt upon the exception, whether, although the plaintiff may agree to take and accept such an admission, interpreting it as affirmative of the de- fendant's belief, if in that sense it would be beneficial to him- self, he is positively bound to receive it, when it is clearly susceptible of a diflerent, or even of an opposite, interpretation, which may affect the nature and extent of his proofs at the hearing of the cause. Upon full reflection, I think that he is not positively bound to receive it, although certainly I should interpret it as an affirmative, if it would be favorable for the plaintiff; but he has a right to require that the defendant should state in direct terms, or, at least, in unequivocal terms, either that he does believe, or that he does not believe, the matter inquired of, or that he cannot form any belief, or has not any belief concerning the matter ; and according as the answer shall be the one way or the other, that he calls upon the plaintiff for proof thereof, or hie admits it, or he waives 'any controversy about it. Upon this ground my opinion is that the exception is welP founded, at least, as to some of the allegations in the answer. It may, perhaps, be sufficient for the court merely in this gen- eral manner to intimate its present opinion upon the case ; and it will be easy for the counsel to make its application to the various parts of the answer complained of. But to make myself more clearly understood, I wish to give an illustration of the principle, drawn from the present bill and answer, especially as the nature of the objection may thereby be seen- in a more strong and exact light. The object of the bill is to obtain, among other thingvS, a perpetual injunction to a suit now pending on the law side of this court, brought by the defendants in the bill (Byam and others) against the plaintiff (Brooks), for a violation of a patent, which they claim title to as assignees of the patentee; and, among other charges, the bill for this purpose alleges that the original patentee (Alonzo D. Phillips) had before his assignment to these parties assigned a limited right therein to one John Brown, under whom the defendant claims a still more limited title, as a sub-purchaser, p-o ianto, and insisted 184 EQUITY PLEADING. that his acts done in supposed viohition of the patent are rightfully done under this sub-title; The patent is alleged to bear date on the 24th of October, 1837 ; the assignment to Brown on the 2d of January, J 837 ; the assignment to Brooks on the 18th of September, 1837 ; but it was not recorded until the 15th of July, 1839 ; and the assignment to Byam on the 28th day of July, 1838, under whom tlie other defendants (Whitney and others) derive title, which only was recorded within the time prescribed by law, whereas the assignment to Brown was not. Under these circumstances the bill chai'ges that Byam, at the time of the assignment to him, and the other defendants (and among them W'hitney). at the time of the assignment to them by Byanj, had knowledge and in- formation and good cause of belief of the prior assignment to Brown. And in the interrogatory part of the bill the defend- ants are required " full, true, direct, particular and perfect answer and discovery to make, and that not only according to the best of their knowledge, but to the best of their re- spective information, hearsay and belief, to all and singular the matters and allegations and charges aforesaid.'' Now, the answer of the defendant Whitney (which is ex- cepted -to) states that he (the defendant) does not of his own knowledge know whether, at the time of the assignment to Byam, he (Byam) had any information or knowledge, or had any cause to believe, that Phillips had previously made any conveyance to Brown, or Brown to the plaintiff (Brooks), as alleged in the bill ; but this defendant has been informed by said Byam that, at the time when the said Phillips conveyed and assigned to him all his right and interest in and to the patent-right, the said Byam had no knowledge, information or cause to believe that the said Phillips had made any convey- ance to the said Brown, or that the said Brown had made any conveyance to the com[)lainant ; and this defendant has no knoiv ledge, information or belief that the information so derived from, the said Byam is not true." Now, it is to the matter and form of this last clause (and a like allegation is to be found in other parts of the answer) that the objection is taken by the exception. The argument is that the clause is ambiguous ; that it does not assert, in direct terms, that the defendant be- lieved or disbelieved the statement of Byam ; or that the de- fendant had no belief, or was unable to form any belief, about the matter, and, therefore, required the plaintiff to prove the MYKKS V. Doin:. 185 knowledge, inforniation or helici' of I>yani at tlic time ol' the assignment to him. So that, in fact, tlie defendant, by the form of his aHegation, does not positively }»ut the assei'ted fact in controversy, as to the knowledge, information or belief of Byani, by athrming his own belief of IJyam's statement; neither does he dispense with the {)roof thereof by ellod to come in as a party. And, once more, it is claimed to be es.sential to the rights of the com- plainant, and to the protection of the business now in the hands of the receiver, and its successful j)rosecution, that the complainant should have the relief against the Marble Com- pany sought by the supplemental bill. A short answer might be given to this. The complainant or the receiver must seek that relief in a court having jurisdiction of the party against whom it is sought. The circumstance that such relief would be beneficial to the parties, and prevent incidental loss to them, pending the prosecution of the original bill, will not warrant or create any extension of the power of the court. We forl)ear to remark upon the extraordinary character of the whole case now before us, in which a complainant who has commenced a suit to dissolve a copartnership and adjust its affairs witli his partner, seeks, by what he calls a supple- mental bill, to compel a third party, who has no interest in the copartnership, specifically to perform an agreement made MYKRS V. DOUR. 189 with the firm ; and that is just what is sought a How., 58; Hill r. Tucker, 13 How., 407. But I'eliance is placed upon the case of Clark v. Mathewson, 12 Pet., 170, as asserting a different doctrine. On a careful examination of the facts of that case, it does not api)ear to warrant any such conclusion. It was a bill in equity, brought by a citizen of the state of Connecticut against a citizen of the state of llhode Island, for an account of certain transactions set forth in the bill, with a pray en- for general relief. After the cause was at issue, it was by the agreement of the parties ordered by the court to be referred to a master to take an account, and ])cnd- ing the proceedings before the master the conij»lainant died. Admini.stration upon Ins estate was taken out by one John II. Clark, in the state of Rhode Island. By the laws of the state, no person not a resident thereof can take out lettei's of administration ; and such adniinisti'a- tion is indispensable to the prosecution or defen.'^e of any suit in the state, in right of tlie estate of the intestate. Clark filed a bill of revivor in the circuit court of Rhode Islanath of his testator or intestate. He has no official existence in such other state, and possesses no })ower there which he can exercise in his official character. Decided cases have established the doctrine that thcnntlior- it}' gi'anted to him is strictly confined to the limits of the state from which it was derived ; and if so. then it would seem to follow that any other person might be made a party defendant to the bill of revivor with equal propriety, and for the reason that, while here, in a jurisdiction where his authority is not acknowledged, he is not in any legal sense the representative of the estate of his testator. lie cannot be liable de bonis propriis and as there are no assets in this jurisdiction there can be nothing on which a judgment would operate. Relief is prayed, not only for the payment of money, but that con- veyances of real estate situated in California may be set aside, and that the same real estate may be conveyed to the com- plainant. Whether executors, as such, have authority, under the laws of California, to convey real estate does not appear, and is at least very doubtful. But if it were less so, it is diffi- cult to see by what warrant this court can recognize the respondent as the executor of the last will and testament of the decedent, while it appears that he is not such by the local law of the district in which the suit is pending, and that there are no assets of the estate within this jurisdiction. Counsel would hardly contend that a bill of revivor could be main- tained against an executor or administrator appointed in Eng- land, wnthout new probate of the letters testamentary, or new letters of administration, in the state tribunals of the district where the original suit was brought. Nothing is better settled than the rule that a person claim- ing under a will proved in one state cannot intermeddle with or sue for the effects of a testator in another state, unless the will be first proved in that other state, or unless he be })cr- mitted so to do by some law of that state authorizing such a proceeding. He cannot sue for the personal estate of the tes- tator out of the jurisdiction of the power by which the letters of administration were granted, and upon the same princi})le and for the same reason he cannot be sued or com[)(>lled to de- fend a suit in any jurisdiction to which his authority as exccu- 2U0 EQUITY PLKADING. tor docs not extend. Doe v. McFarlaiid, 9 Craiich, 151 ; Kerr V. Moon, 9 Wheat., 571. Devisees or heirs would not be bound by the decree, if one were made, so far as the real estate is con- cerned, for the reason that they are not made parties to the bill of revivor, and have had no notice of the proceeding. It is obvious, therefore, if the court should render a decree that the complainant is entitled to the relief prayed for, the respon- dent in the bill of revivor would have no authority to comply with the order of the court, and the court would have no power to enforce its mandate. In view of all the circum- stances disclosed in the case, I am of the opinion that the i)lea to the jurisdiction of the court is sufKcient, and that the demurrer must be overruled. chaptp:k VIII. HEARING OX BILL AM) ANSWER TAKING TESTIMONY ON ISSUE JOINED REFERENCE TO MASTER AND PROCEED- INGS THEREON WITNESSES. liule a 7' After the cause is at issue, commissions to take testimony may be taken out in vacation as well as in term, jointly ])v l^oth parties, or severally by either party, upon interrogatories filed by tlie party taking out the same in the clerk's office, ten clays' notice thereof being given to the adverse party to file cross- interrogatories before the issuing of the commission ; and if no cross-interrogatories are filed at the expiration of the time the commission may issue ex parte. In all cases the commissioner or commissioners may l)e named by the court or l)yajudge thereof; and the presiding judge of the court exercising juris- diction may, either in term time or in vacation, vest in the clerk of the court general power to name commissioners to take testimony. Either party may give notice to the other that he desires the evidence to be adduced in the cause to be taken orall}', and thereupon all the witnesses to be examined shall be exam- ined before one of the examiners of the court, or before an examiner to be specially appointed by the court. The exam- iner, if he so request, shall be furnished with a copy of the pleadings. Such examination shall take place in the presence of the parties or their agents, by their counsel or solicitors, and the witnesses shall be subject to cross-examination and re-exami- nation, all of which shall be conducted as near as may be in the mode now used in common- law courts. ( 201 ) 202 • EQUITY PLEADING. The depositions talceii upon such oral examination shall be reduced to writing by the examiner, in the form of question put and answer given ; provided, that, l.)y consent of parties, the examiner may take down the testimony of any witness in the form of narrative. At the request of either party, with reasonable notice, the deposition of any witness shall, under the direction of the examiner, be taken down either by a skillful stenographer or by a skillful typewriter, as the examiner may elect, and when taken stenographically shall be put into typewriting or other writing ; provided, that such stenographer or typewriter has been appointed by the court, or is approved by both parties. The testimony of each witness, after such reduction to writ- ing, shall be read over to him and signed by him in the- presence of the examiner and of such of the parties or coun- sel as may attend ; provided, that if the witness shall refuse to sign his deposition so taken, then the examiner shall sign the same, stating upon the record the reasons, if any, assigned by the witness for such refusal. The examiner may, upon all examinations, state any special matters to the court as he shall think fit ; and any question or questions which may be objected to shall be noted by the examiner upon the deposition, but he shall not have power to decide on the competency, materiality, or relevancy of the questions ; and the court shall have power to deal with the costs of incompetent, immaterial, or irrelevant depositions, or parts of them, as may be just. In case of refusal of witnesses to attend, to be sworn, or to answer any question put by the examiner, or by counsel or solicitor, the same practice shall be adopted as is now prac- ticed with respect to witnesses to be produced on examination before an examiner of said court on written interrogatories. Notice shall be given by the respective counsel or solicitors to the opposite counsel or solicitors, or parties, of the time and place of the examination, for such reasonable time as the examiner may fix by order in each cause. EQUITY PLKADING. 203 When the examination of witnesses before the examiner is concluded, the original depositions, authenticated by the signature of the exaniiui'r. shall be transmitted by iiini to the clerk of the court, to be tliere tiled of record, in tiie same mode as prescribed in section 805 of the Kevised Statutes. Testimony may be taken on commission in the usual way, by written interrogatories and cross-interrogatories, on motion to the court in term time, or to a judge in vacation, for special reasons, satisfactory to the court or judge. Where the evidence to be adduced in a cause is to be taken orall}^ as before provided, the court may, on motion of either party, assign a time within which the complainant shall take his evidence in support of the bill, and a time thereafter within which the defendant shall take his evidence in de- fense, and a time thereafter within which tlie complainant shall take his evidence in reply ; and no further evidence shall be taken in the cause, unless by agreement of the parties or by leave of court first obtained, on motion for cause shown. The expense of the taking down of depositions by a sten- ographer and of putting them into typewriting or other writ- ing shall be })aid in the first instance by the party calling the witness, and shall be im})osed by the court, as part of the costs, upon such party as the court shall adjudge should ulti- mately bear them. Upon due notice given as })rescribed by previous order, the court may, at its discretion, permit the whole, or any specific part, of the evidence to be adduced orally in open court on final hearing. Itule 71. The last interrogatory in the written interrogatories to take testimony now commonly in use shall in the future be altered, and stated in substance thus: " Do you know, or can you set forth, any other matter or thing which may be a benefit or advantage to the parties at issue in this cause, or either of them, or that may be material to the subject of this your ex- 204 EQUITY PLEADING. aniiiiation, or the matters in (question in this cause? If yea, set forth tlie same fully and at large in your answer." Hide as. Testimony may also be taken in tlie cause, after it is at issue, by deposition, according to the act of Congress. But in such case, if no notice is given to the adverse party of the time and place of taking the deposition, he shall, upon motion and affidavit of the fact, be entitled to a cross-examination of the witness, either under a commission or by a new deposition taken under the acts of Congress, if a court or judge thereof shall, under all the circumstances, deem it reasonable. Bule (iU. Three months, and no more, shall be allowed for the taking of testimony after the cause is at issue, unless the court, or a judge thereof, shall, upon special cause shown by either party, enlarge the time ; and no testimony taken after such period shall be allowed to be read in evidence at the hearing. Im- mediately upon the return of tlie commissions and depositions containing the testimony into the clerk's oflice, publication thereof may be ordered in the clerk's office, by any judge of the court, upon due notice to the parties, or it may be en- larged, as he may deem reasonable, under all the circum- stances; but, by consent of the parties, publication of the testimony may at ' any time pass into the clerk's office, such consent being in writing, and a copy thereof entered in the order-books, or indorsed upon the deposition or testimony. Rule 70. After any bill filed and before the defendant hath answered the same, upon affidavit made that any of the plaintiff's wit- nesses are aged and infirm, or going out of the country, or that any one of them is a single witness to a material fact, the clerk of the court shall, as of course, upon the application of the plaintiff, issue a commission to such commissioner or com- EQUITY I'l.KAIHNC. 205 missioiid'H as a judge of tlie court may direct, to take the ex- amination of such witness or witnesses de bene esse, upon giving due notice to the adverse inirty of the time and j)hiee of taking his testimony. RiUe 74. Whenever any reference of an}' matter is made to a master to examine and report thereon, the party at whose instance or for wliose benefit the reference is made shall cause the same to be presented to the master for a hearing on or before the next rule-day succeeding the time when the reference was made; if he shall omit to do so, the adverse party shall be at liberty forthwith to cause proceedings to be had before the master, at the costs of the party ])rocuring the reference. Mide 75. Upon ever}" such reference, it shall be the duty of the mas- ter, as soon as he reasonably can after the same is brought be- fore him, to assign a time and }»lace for proceedings in the same, and to give due notice thereof to each of the parties, or their solicitors ; and if either party shall fail to appear at the time and place appointed, the master shall be at liberty to proceed ex parte, or, in his discretion, to adjourn the examina- tion and proceedings to a future day, giving notice to the ab- sent party or his solicitor of such adjoui-nment ; and it shall be the duty of the master to proceed with all reasonable dili- gence in every such reference, and with the least i)racticable delay, and either party shall be at libei'ty to apply to the court, or a judge thereof, for an order to the master to speed the |)ro- ceedings and to make his re})ort, and to certify to the court or judge the reason for any delay. Itule 70. In the reports made by the master to the court, no part of any state of facts, charge, afiidavit, deposition, examination, or answer Ijrought in or used before them shall be stated or 206 EQUITY PLEADING. recited. But such state of facts, charge, affidavit, deposition, examination or answer shall be identified, specified, and re- ferred to, so as to inform the court what state of facts, charge, affidavit, deposition, examination, or answer were so brought in or used. Rule 77. The master shall regulate all tlie proceedings in every hear- ing before him, upon every such reference ; and he shall have full authority to examine the parties in the cause, upon oath, touching all matters contained in the reference ; and also to require the production of all books, })a|)ers, writings, vouchers, and other documents applicable thereto; and also to examine on oath, viva voce, all witnesses produced by the parties before him, and to order the examination of other witnesses to be taken, under a commission to be issued upon his certificate from the clerk's office or by deposition, according to the act of Congress, or otherwise, as hereinafter provided ; and also to direct the mode in which the matters requiring evidence shall be proved before him ; and generally to do all other acts, and direct all other inquiries and proceedings in the matters be- fore him, which he may deem necessary and proper to the justice and merits thereof and the rights of the. parties. liule 78. Witnesses who live within the district may, upon due no- tice to the opposite party, be summoned to appear before the commissioner appointed to take testimony, or before a master or examiner appointed in any cause, by subpoena in the usual form, which may be issued by the clerk in blank, and filled up by the party praying the same, or by the commissioner, master, or examiner, requiring the attendance of the wit- nesses at the time and place specified, who shall be allowed for attendance the same compensation as for attendance in court ; and if any witness shall refuse to appear or give evidence it shall be deemed a contempt of' court, which being certified to I'XJUITY PLKADINO. 207 the clerk's oftice by tlu' coiiiiiiissioiKT, iiinster, or exaniinor, an attaehment may issue thereupon by order of the court or of any judge thereof, in the same manner as if the contempt were for not attending, or for refusing to give testimony in the court. But notliing herein contained sliall prevent the exam- ination of witnesses rivn voce when })ro(hiced in open court, if the court shall, in its discretion, deem it advisable. liitle 7V. All parties accounting before a master shall bring in I heir respective accounts in the form of debtor and creditor ; and any of the other parties who shall not be satisfied with the account so brought in shall be at liberty to examine the ac- counting party viva voce, or upon interrogatories, in the mas- ter's office, or by deposition, as the master shall direct. Bale SO. All afhdavits, depositions and documents which have been previously made, read, or used in the court upon any proceed- ing in any cause or matter ma}' be used before the master. Rule 81. The master shall be at libert}'^ to examine any creditor or other person coming in to claim before him, either U})on written interrogatories or viva voce, or in both modes, as the nature of the case may apj^ear to him to require. The evi- dence upon such examinations shall be taken down by tlie master, or by some other person by his order and in his pres- ence, if either i)arty requires it, in order that the same may be used by the court if necessary. liule 82. The circuit courts may api)oint standing masters in chancery in their respective districts, (a majority of all tlie judges thereof, including the justice of the Supreme Court, the circuit judges, and the district judge for the district, concurring in the 208 EQUITY PLEADING. appointment,) and they may also appoint a master pro Jiac vire in any particular case. The compensation to be allowed to ever}^ master in chancery for his services in any particular case shall be fixed by the circuit court, in its discretion, hav- ing regard to all the circumstances thereof, and the compen- sation shall be charged upon and borne by such of the parties in the cause as the court shall direct. The master shall not retain his report as security for his compensation ; but when the compensation is allowed by the court, he shall be entitled to an attachment for the amount against the party who is ordered to pay the same, if, upon notice thereof, he does not pay it within the time prescribed by the court. Riile 83. The master, as soon as his report is ready, shall return the same into the clerk's office, and the day of the return shall be entered by the clerk in the order book. The parties shall have one month from the time of filing the report to file ex- ceptions thereto ; and, if no exceptions are within that period filed by either party, the report shall stand confirmed on the next rule-day after the month is expired. If exceptions are filed, they shall stand for hearing before the court, if the court is then in session ; or, if not, then at the next sitting of the court which shall be held thereafter, by adjournment or otherwise. Bule S4. And, in order to prevent exceptions to reports from being filed for frivolous causes, or for mere delay, the party whose exceptions are overruled shall, for every exception overruled, pay costs to the other party, and for every exception allow^ed shall be entitled to costs : the cost to be fixed in each case by the court, by a standing rule of the circuit court. ALUS V. STOWKI.L. 209 ALUS V. HTcnVKLL. (Circuit ('(.iirt tVir Wisconsin: ') Fetlcnil Kcporler, ■J()3-'20(). 1SS(( ) Opinion by Dykk, J. . ' Statement of Facts. — This is u bill to restrain the in- fringement of two patents for saw-mill dogs, known as the Selden and Beckwith j»atents. On a previous hearing uj)on bill, answer and proof's, a decree was entered in favor of ct>m- plainants, sustaining the validity of both patents. Subse- quently the defendant moved that the cause be opened for a rehearing on the ground of newly-discovered evidence. The court granted a rehearing as to the Selden patent, but denied it as to the Beckwith patent, and it was ordered that the de- fendant have leave to amend his answer as prayed in said petition for a rehearing. By this order it was intended and understood tliat the controversy between the parties should be reopened, but only to let in the newly-discovered matter, and to the extent only that the Selden patent might be thereby affected. The defendant filed an amended answer, which set up the new matter relied on to defeat the Selden patent, and also embraced all the original defenses to both patents. The complainant then filed a motion to strike the answer from the files for the rea.son that it v/as not limited in form and sub- stance to the new matter, and therefore was not, as it is claimed, such an answer as the order for a rehearing author- ized. The defendant then moved to dismiss the suit, under the sixty-sixth rule in equity, for the reason that no replication had been filed to the amended answer, and this is the motion now to be decided. It is claimed b}'^ counsel for defendant that if the complain- ant desired to raise an}^ question as to the regularity or sufiic- iency of the amended answer, he should have excepted to it ; that a motion to strike from the files is irregular and cannot be entertained ; and that as the answer was not excejited to, and a replication was not filed, he is entitled to have the suit dismissed, under the rule. It is not intended now to pass upon the merits of the motion to strike the amended answer from the files. The only (pies- tion to be presently determined is. Is the defendant entitled, in the face of that motion, to have the suit dismissed for want of a replication? In other words, is the complainant in such default as to entitle the defendant to such action by the court as he invokes? 14 210 EQUITY PLEADING. It must be presumed that the motion to strike the amended •answer from the files was made in good faith, and an inspec- tion of the answer shows that it contains all the defenses wliich appeared in the original answer, in addition to those embraced in the new matter, on account of which a rehearing was granted. Whether this form of ])leading, in the present atti- tude of the case, be regular or not, I do not, as before remarked, now decide. But it seems very clear that the court cannot treat the motion to strike the amended motion frotn the files as such an act of non-conformity to correct practice as leaves the complainant in default, and as entitles the defendant to a dismissal of the suit for want of a re[)lieation. Rule 66 pro- vides that " whenever the answer of the defendant shall not be excepted to, or shall he adjudged or deemed sufficient, the plaintiff shall file the general rephcation thereto on or before the next succeeding rule day thereafter. ... If the plaintiff shall omit or refuse to file such replication within the pre- scribed period, the defendant shall be entitled to an order, as of course for a dismissal of the suit." So it appears that if the answer shall be excepted to, or shall be adjudged or deemed insufficient, a replication is not to be filed. And I do not think that the only method that may be pursued to test the sufficiency or regularity of an answer is that of filing exceptions. Where a question is presented like that here involved, I am of the opinion that it may be raised by motion to strike the answer from the files, and the rule does not necessarily exclude such a course of procedure. Whether or not in a given case exceptions should be filed, or a motion should be made to strike the pleading from the files, may depend upon the character of the objections which are made to the pleading. Authority upon the correct course of practice is meager, but in Strange v. Collins, 2 Yes. & B., 162, it was held by Lord Eldon that wliere a supplemental answer contained not onl}' the new matter which the part}' had obtained leave to allege, but also other matter which was contained in a former answer, the supj^lemental answer could be ordered off the file, on motion. In the case at bar, the pleading involved is an amended and not a supplemental answer, but that ought not to make any difference in the api)lication of a rule of practice. It is understood to be true, as claimed by counsel for defend- ant, that exception^ to this answer could not, in the present BOUDEREAU V. MONTGOMKKY. li 1 1 aspect of the cnse, be tiled without K'ave. Barnes r. Tweddle, 10 Sim., 481. But 1 hardly think that leave of the eouit was a necessary prere([uisite to a motion/ to strike the ])k'a])car when and where the de|>o- sitions were taken. As to the de])Ositions taken at Iberville by P., not only out of his district but within the district of an- other commissioner, it is impossible that th(>y can be supported, any more than if they had been taken by a person not author- ized by the court to take them. And having thus fui'nished 212 EQUITY PLEADING. the court with evidence of his total disregard of the authority given to him in those instances, I am well warranted in doubt- ing, at least, whether he has been more attentive to it in others where he is silent as to the place at which the commission was executed. Depositions were offered by plaintiffs taken in an ejectment suit in Baltimore, brought by some of their number against the administrators. They were objected to as res inter alios acta. Ol)inion by Washington, J. As depositions, the evidence is inadmissible, inasmuch as it was taken in a cause between different parties from those who are now before this court, though in relation to the same ques- tion. Were the plaintiffs tlie same, I think the objection would not hold, on the ground that Mr. Cross was not a party to the suit in which the depositions were taken, since Mont- gomery was, and as representing his co-administrator, as well as the estate of the intestate, he had every opportunity of cross-examining the witnesses. Note.- — Only so mucli of this case is reported as relates to Equity Pleading and Practice. ] GASS V. STINSON. (Circuit Court of Massachusetts: 2 Sumner. 605-()12. 1H37.) Statement of Facts. — This cause was before the master upon an interlocutory order, and an application was made to examine witnesses impeaching the competency of Noah James, a witness whose testinjony had been before the court upon the hearing. There was an order made by the judge at chamb- ers to take the depositions de bene esse, and the cause came up on a motion to supersede that order. Opinion by Story, J. As the original application to the master was made orally, the precise grounds on wbicli it was made do not appear, ex- cept from the master's certificate. This was a great irregular- ity ; and the application should have been by petition in writing, verified (if not ordinarily, at least in a case of this sort) by affidavit. See Troup v. Sherwood, 3 John. Ch., 558, 56(3. The irregularity, however, was not then brought to my notice. The interrogatories proposed to be |)ut to the witnesses were, however, filed in writing before the master ; and an ex- ception has now been taken to their purport and character. I shall presently have occasion to comment on them. GASS V. STINSON. 'i 1 .'J 'riu' apjilication to supersede the (»r(k'i' rclifH iijxni varidiis grounds. The first one is that the application was loundetl upon a suggestion Avhieh is wliollv/ incorreet, to wit, that James had not received a plenary jjardon ; wliei'eas in fact he had received such a ])ardon, as appears by a coj»y of the in- strument of pardon, 'i'his removes at once the whole of the original ground of the a})plication, and undoubtedly entitles the plaintifi" to have the order for taking the de])Ositions su[)er- seded, since the witness was clearl}- competent. But an attempt has been made to sustain the order upon the ground that the facts to be stated by the witnesses would go to atFect the credibility of James. Upoji looking into the interrogatories filed, it is impossible that they can be sustained for this or any other purpose applicable to the cause. The first three interrogatories are merely introductory, and point solely to the identification of James ; and, in other resi)ects, are immaterial and irrelevant. All the other interrogatories seek to establish, by the parol evidence of witnesses, that there was an indictment, trial, conviction and sentence of James for larceny; facts which should be proved by a. production of the record itself, and which are not, in their character, proper to be established by tlie mere oral statements of witnesses. There is no ground upon which a party can be ])ermitted to testify orally to the contents or purport of an indictment, or verdict, or judgment ; for the best evidence is the original })aper, or a certified copy. So that, if the interrogatories had been origin- ally examined, they must have been su})pressed, whether they applied to competency or to credibility. But it is proper to say a few words as to the time and man- ner of presenting objections to the competency or credibility of witnesses in courts of equity. The general course of ]>ractice is that, after publication has passed of the dej)ositions (though it may be befoi-e), if either party would ol)ject to the comjie- tency or crcdi])ilily of the witnesses whose depositions are in- troduced on the other side, he must make a special apj)lieation by ])etition to the court lor lilxM'ty to exhibit articles, staling the facts and objections to the witnesses, and ]iriiying leave to examine other witnes.^^es to establish the truth ol' the allegations in the articles bv suitable proofs. 1 Harris, ("h. J'r. (bv New- land), pp. 282, 283; Ilinde's P.Ch., 074,37.'); ] Newl. Ch. Pr., 289, 200; Cilb. For. iJoman., 1-17,1-^8. Without such special order, no such examination can take place; and this 214 EQUITY PLEADING. has been the settled rule ever since Lord Bacon j^romul^atecl it in his Ordinances. Ord. 72 ; Beanies' Ordin. in Ch., })p. 32, 187; Mill V. Mill, 12 Yes., 400. Upon such a petition to file articles, leave is ordinarily granted by the court, as of cjourse, unless there are special circumstances to prevent it. There is a difference, however, between objections taken to the compe- tency and those taken to the credibility of witnesses, ^\'llere the objection is to competency, the court will not grant the application after publication of the testimony, if the incompe- tency of the witness was known before the conimission to take his deposition was issued ; for an interrogatory might then have been put to him directly on the jioint. But, if the ob- jection was not then known, the court will grant the applica- tion. 1 Harris. Ch. Pr. (bv Newland), 282, 283 ; 1 Newl. Ch. Pr., 289. 290, 291 ; Hinde's Ch. Pr., 374, 375; Purcell v. Mc- Naraara, 8 Ves., 324 ; Vaughan v. Worrall, 2 Madd. Ch. Pr., 322 ; S. C, 2 Swanst., 400. This was the doctrine asserted by Lord Hardwicke in Callaghan v. Rochfort, 3 Atk., (543, and it has Ijeen constantlv adhered to ever since. See Purcell v. McNamara, 8 Ves.^ 324; Vaughan v. Worrall, 2 Madd. Ch. Pr., 322. The proper mode, indeed, of making the application in such case seems to have been thought by the same great judge to be, not by exhibiting articles, but by motion for leave to examine the matter, upon the foundation of ignorance at the time of the examination. Id. But U})on principle there does not seem to be any objection to either course; though the exhibition of articles would seem to be more formal, and per- haps, after all, more convenient and certain in its results. But where the objection is to credibility, articles will ordi- narily be allowed to be filed by the court upon petition, with- out affidavit, after publication. Watmore v. Dickinson, 2 Ves. & Beam., 267. The reason for the difference is said by Lord Hardwicke (in Callaghan v. Rochfort, 3 Atk., 643) to be, be- cause tlie matters examined into in such cases are not matei'ial to the merits of the cause, but only relative to the character of the witnesses. And, indeed, until after publication has passed, it cannot be known what matters the witnesses have testified to ; and, therefore, whether there was any necessity of examin- ing any witnesses to their credit. Russel v. Atkinson, 2 Dick., 532. This latter is the stronger ground ; and it is confirmed by what fell from the court in Purcell v. McNamara, 8 Ves., 324. GASS V. STINSON. 2lo When the examination is allowed (o eredibility only, the interrogatories are confined to general interrogatories as to credit, or to such particular focts only as are not material to what is already in issue in the cause. The qualification in the latter case (which case seems allowed only to inij)U case (Mazange being dead), and that the wife could not be a witness for her husband. The complainant's counsel, neverthele.ss, after this, j)i'oceeded to file and sei've 218 EQUITY PLEADING. inteiTogatories witli u view to examine tlie complainant and his wife on commission. The defendants tiled cross-interroga- tories under pi'otest. The examination having been taken and the de[)ositions returned, the defendants at the hist term moved to suppress the same. The motion, not being disposed of, is now repeated. One ground of the motion is, that the- compkiinant and his wife are not competent witnesses in the- case. In general, the comjietency of witnesses in the United States- courts in civil cases is governed l)y the law of the state in which tlie court is held. Such was the rule enacted by the statute of July G, ]8(i2 (12 Stat., 588). Jhit congress has specially regulated the sul)ject now before the court. By the act of July 2, 18G4 (13 Stat., 351), it was declared, amongst other things, that there should be no exclusion of any witnesS' in the federal courts because he was a party to, or interested in, the issue tried. This act was modified by that of March 3, 1865 (13 Stat., 533), by which it was enacted that in actions by or against executors, administrators or guardians, neither party should be alhnved to testify against the other as to any transaction with, or statement by, the testator, intestate or ward, unless called to testify thereto by the op{)osite i)art3', or required to testify thereto by the court. This act is a recogni- tion of the glaring injustice it would involve, to permit one party to propound himself as a witness in his own behalf as to a transaction between him and a deceased jjcrson, who can no longer give his version of the affair. If the law were to- allow a man to wait until his antagonist were dead, and then to sue his heirs, and ])ut himself upon the witness-stand and give his version of the affair, with no one to contradict or qualify his testimony, it would be as gross a prostitution of the forms of law, as to allow a man to be judge in his own cause. Every honest mind revolts against it. There may be special cases, it is true, in which the court can see that no injustice would be done by calling on a party to testify, even though his adversary be deceased. But it is useless to attempt to an- ticipate such cases. When they arise it will be for the court, and not the party himself, to suggest that he be called. Or, if he make the suggestion, the other i)arty ought at least to be heard u])on it. It is claimed in this case that the court has made an order ESLAVA V. MAZAXGE. 210 to take tlio testimony. lUit liow was it iiuule? It was an ex parte order taken before the defendants were subpoenaed to appear in the cause, \yiien the statute authorizes sudi testi- mony to be taken if " lecjuired by the court," it does not refer to such a requirement or order as that which was maaiil and dis- obaroed, and a sullieiciit sum colU'c-ted out ol" Ibc dt'l)t8 now- due to the said liini, $o,oO(), and in Bridge bills whenever he shall demand them, $1,130. And the said A. M. Hobby, for said consideration of the above sums of money to be j)aid, and the furthei- sum of .$i to him in hand paid, the receipt whereof is hereby acknowledged, hath relinquished, and by these pres- ents doth transfer, to the said parties of the second part, all his interest or claims of whatever nature he has, or may have, as partner in the said firm. It is also stipulated and agreed, that the said A. M. Hobby of the lir.st part, in consideration as above specified, is to protect the said parties of the second part from a certain judgment obtained against said firm by the branch of the United States Bank, in this city, and to hold them harmless from any balance, should there Ije any due, after the conclusion of the settlement between John M'Kinnie and Thomas Gardner, respecting the said judgment. And for the faithful discharge of this agreement, we bind ourselves, our heirs, executors, administrators or assigns." At the time this agreement was executed, an inventory was taken of the a.ssets and debts of the firm, by which it appeared that the goods and property on hand, together with the debts due to the partnership, were estimated at $38,1 64. 9G ; and that the debts due from it amounted to $20, 057. 91, und that this schedule formed the basis of the agreement. In November, 1829, Hobby filed his bill against Kelsey and M'Intyre, charg- ing that there was a surplus of partnership effects, after pay- ing all the debts, sufficient to satisfy the $5,500 mentioned in the contract, as well as the Bridge bills, and praying an ac- count. These Bridge bills were notes issued by a company who had built a bridge in the state of Georgia ; and these notes circulated as mone}^ but at a heavy discount. On the 7th of February, 1830, M'Intyre put in his separate answer, in which he denies that the assets of the partnershij) produced the surplus charged by the ('om|)lainant ; and exhib- ited an account according to which the funds of the partner- ship realized only $29,580.83, the debts paid amounted to $28,874.06 ; and he insisted that large sums were also paid b}'- them for interest on the debts of the firm, and heavy exjienses incurred, which were not introduced into this account, but for which Kelsey and M'Intyre ought to be allowed credit ; and that when these sums were added, they would amount lo con- 222 EQUITY PLEADING. siderably more than had been collected, and that, in addition to this, they are entitled to an allowance of two and a half per cent, on all sums collected and paid by them. He also averred that Hobby did not perform his part of the agreement, and that an execution was afterwards issued by the branch of the United States Bank, and the goods of'Kelse}^ and M'Intyre seized for the debt against which Hobbj^ had covenanted to save them harmless ; and that, by reason of that execution and seizure, they were put to great expense, and were seriously injured in their credit and embarrassed in their business as merchants ; and insisted that they were absolved from their agreement by the failure of Hobby to perform his part. The answer further stated that although Kelsey and M'Intyre de- nied the right of the complainant to the Bridge bills he claimed, yet they were willing to give him an order for them on the attorney in whose hands they had been placed for suit, and who had jn-osecuted the claim to judgment. That the re- spondent had always been ready to account with the complain- ant, Hobby, and to deliver him these bills, but that no demand was made until this suit was about to be instituted. Kelsey, the other respondent, had removed to New York, a short time before the bill was filed, and his answer was not put in until January 10, 1838. This answer is in substance the same with that of M'Intyre, to which it refers. There was a general replication to tliese answers, and the accounts referred to a master, by order of the court ; when liis report came in, many exceptions were filed to it on both sides ; and upon hearing, the court set aside the report, and returned it again to the master, with directions as to the principles on which it was to be stated. A good deal of testimony was taken on both sides, and the master made a second report at April term, 1839, according to which the respondents had paid $2,031.05, beyond the assets which came to their hands. Many exceptions were again filed on both sides to this report, and it was by order of the court again returned to the master, with directions to take further proof as to one of the items in controversy. In the latter end of August, 1839, while the accounts were pending before tlie master, as hereinl)efore mentioned. Hobby went to New York, where Kelsey resided and was carrying on business; and a few days after he arrived there, he was arrested at the suit of Kelsey and M'Intyre, upon a claim for KELSKY V. IIOBI'.V. 223 $4,000 as (laniao(>s for not lia\iii^ saved tliciii liannless against the debt due the Hrancli l)ank of the I'nited Slates, according to his covenant in the agreement hereinbefore mentioned. It seems that Kelsey was advised by his counsel in New York that this chiim couhl not be alhiwed Iiim in tlie chancery suit, because the damages were nnli(ivii(lated. Heing a stranger in the city, he found diHicuhy in procuring special bail. But an acquaintance whom he had occasionally met in society, and to whom he api)lied, entered into a bail bond to the slu'i'ill, -conditioned that he would appear to the? suit and put in special bail within twenty days after the 4th of 8e[)tember then next ensuing; Hobby assuring him that he exjiected some of his southern friends to be in New York in a ftnv days, and that he would then lie able to relieve liim. The party who thus became his security informed Hobby, in the presence of the ofhcer in whose custody he was, that he could not justify as special bail ; and he was not, therefore, accepted as security in the bond until the officer consulted Kelsey's counsel and received his consent. The southern friends of whom Hobby spoke, when they arrived, offered to become his s]')ecial bail, but not living in the state of New York, they could not be taken without the consent of Kelsey. And Hobby remained in New York, un- able to procure special bail until the (ith of September, when he signed an admission of the correctness of an account con- cerning the whole controversy in the cii'cuit court, which had been prepared some time before by one of Kelsey's clerks. According to this account, Kelsey and MTntyre had paid $15,859.73, under the agreement with Hobby, beyond the amount of the partnership funds that came to their hands. And at the same time that he signed the account he executed the following release : Account of C. Kelsey and Company ivitlt the old Concern of C. Kelsey and Company. Vnltcd IStafes, SoidJi Carolina Disfrict. Being Sidli District, United States. A. M. Hobby and Thomas C. Bond ^ >,. ,. ■, ^ ^ ^ I Now pcndnig before Charles Kelsey and Charles iM'Jntyre, j In Chancery. In this case, the parties, Alfred M. Hobby and Charles Kel- 224 EQUITY PLEADING. sey, have come together, and examined the subject-matter in dispute, and they find the within account correct, and it is hereby admitted to be correct, and every entry in it. And they do not deem it just or equitable that said suit should be farther prosecuted. And in consideration of the premises, and $1 paid, the parties in said suit hereby discharge eacdi other from all demand in the same. And each party releases and discharges the other from all demand of ever}' name and nature, and agree that the said suit should be discontinued. As witness our hands and seals, this Gth day of September, 1839. A. M. Hobby, [l. s.] C. Kelsey. [l. s.] Witness to the signatures and seals of A. M. Plobby and C. Kelsey : Gko. H. Kelsey, B. A. Hegemon. This release was attached to the account settled at the same time ; and a letter written by Hobby to his counsel, and shown to Kelsey, stating that they had come to a settlement, and directing the suit in chancery to be discontinued ; and Hobby was thereupon discharged from the arrest, and shortly afterwards left New York. On the Sth of January, 1840, the release and settlement above mentioned were produced in court by the solicitors for the respondents, and a motion thereupon made to disuiiss the bill. This motion was resisted on the part of the complain- ant, but the juirticular grounds upon which it was objected to are not set forth. The order of the court merely states that the release was impeached by the complainant's counsel, and authorizes both parties to take testimony in regard to the settlement and release. Under this order, sundry depositions were taken and returned on the i)art of the complainant, to show that the settlement and release were without consider- ation, and that they were extorted from him by the arrest under which he was detained in New Yoi'k ; his southern friends and acquaintances being refused as bail, because they did not reside in the state, and he being unable to leave the city until the temporary bail he had procured was discharged. And sundry depositions were also taken and returned on the part of Kelsey, to show that there was no harshness or oppres- sion on his part, and no undue advantage taken of Hobby ; KELSEY V. 1I()I!1;Y. 2'J;> and tliat the scUleniont and release were freely and \(ilnnlaiily made. The ease came on tor linal heariii<;- im the oOtli oi" May, 1840, uj)()n the report of the master, and the exceptions liled to it on both sides. The report, which stated, as bel'ore, a bal- ance of $2, 031. 95, in favor of Kelsey and M'lntyre, for pay- ments and allowances made to them, over and above the sums realized by them from the partnership etf'ects, was set aside by the court ; and upon the testimony in the cause, tlie court proceeded to pass a decree in favor of the comi)lainant for $5,500, with interest, and for the Bridge bills mentioned in the agreement, and allowing to the respondents a .set-off of $300, for the damages sustained by reason of the execution issued against them by the Branch Bank of the United States, as hereinbefore stated. P^rom this decree the respondents appealed to this court. This statement of the facts in the case may appear to be tedious ; but from the nature of the proceed- ings it is necessary, in order to show how the points arose which were made in the argument in this court. The appellants contend that the court of chancery had no jurisdiction beyond that of compelling a discovery of the amount which Kelsey and M'lntyre had received under the agreement ; and that if anything was found due from them to Hobby, he was bound to resort to his action at law on the covenant in order to recover it. But the court think it was a very clear case for relief, as well as discovery in chancery. It is true he had ceased to be a partner, but the appellants had received the assets of the partnershij) upon a trust that they would collect them and pay the debts, for which Hobby was liable as well as themselves ; and would pay over to him the sum before mentioned as soon as tliey collected enougli for that purpose after the payment of debts. He was, therefore, entitled to an account ; and if upon that account anything was found due to him, he was, Ufmn well-settled chancery princi|)les, entitled to relief also. Neither can the objection be sustained as to the mode in which the amount due was ascertained. It is true, tliat ac- cording to the ordinary mode of proceeding in courts of equity, instead of setting aside tlie report of the ma.ster, the court should have passed its judgment upon each of tlie exceptions, or have remanded the account to the auditor, with additional' directions as to the principles upon which it was to be stated. 15 "226 EQUITY PLEADING. And if it had been necessary to ascertain precisely the amount which the appellants had collected over and above the debts they had paid, the proceeding adopted by the court would have been liable to the objections urged against it. For the decree could not in that case have been reviewed in the ap})el- late court, and the exact balance ascertained, unless the record showed what items were allowed and what disallowed in the inferior court. But this is not a case of that desci'iption. If the appellants had received the sum claimed by Hobby be- yond the amount of debts paid, it mattered not how nnich more they had received ; and the case did not require a state- ment of the exact amount. And as the evidence, and ac- counts, and exceptions, are all in the record, this court can determine whether the sum mentioned is proved to have been collected or not. And if it appears to have been received, the decree must be affirmed, even although it may happen that items allowed by the circuit court are disallowed here ; or items disallowed l)y that court are determined here to be correct and properly chargeable. And, as all the testimony is before us, and the exceptions show all of the disputed items, neither party can be taken by surprise. It would extend this opinion to a most unreasonable length, if the court were to enter upon a particular and detailed ex- amination of the various disputed items, and of the testimony and calculations relied on by the parties to support their res|)ective claims. Fourteen exceptions were taken to the auditor's report by the complainant*;, and six by the defend- ants ; and the evidence upon which they depend is volumi- nous. Four of them require a particular examination and comparison of different accounts, in order to arrive at a just conclusion. We have looked into tiie whole testimony very carefully, and unless the release and settlenient in New York is to 1)0 regarded as conclusive, we are satisfied that Kelse}^ and M'Intyre have received from the partnership assets beyond the amount paid for debts, a larger sum tlian that decreed against them by the circuit court. This brings us to examine the release, and the account stated at the time it was given. Some objections have been made as to the manner in wliich the release was introduced into the proceedings. It was filed in the cause, and a motion thereupon made to dismiss the bill ; and it is said that being executed while the suit was pending KELSKY V. llOliliY. 22/ aiul after (lie answers were in, and the aeeounts before the mas- ter, it should have been brought before the court by a cross-bill or supi)leniental answer, and could Hot in that stage of the pi'oceeclings be noticed b}' the court in any other way. It is a sufficient answer to this exception to say that it was admitted in evidence without exce[)tion, and both parties treated it as properly in the cause; and the complainant proceeded to take testimony to show that it was obtained from him by dui'css, and the defendants to show that it was freely and voluntarily given. It had the same effect that it would have had upon a cross-bill or supplemental answer, and the com})lainant had the same opportunity of impeaching it. And there is no pro- priety in requiring technical and formal proceedings, when they tend to embarrass and delay the administration of jus- tice, unless they are required by some fixed princi])les of equity, law, or practice, which the court would not be at liberty to disregard. The release and account being therefore regularly before the court, we j)roceed to inquire into their legal effect, and the de- gree of weight to which they are entitled. The effect of a re- lease, executed in consideration of the settlement of accounts between the parties, is clearly stated in Story's Equity Plead- ings, 529, § 685. If the account is impeached, the release will not prevent the court from looking into the settlement ; and the release in such a case is entitled to no greater force in a court of equity than the settlement of the account upon which it was given. In the case before us, the settlement of the account was the only consideration for the release. The com[)lainant, who resides in Georgia, and who had gone to New York uj)on Inisiness, was unexjiectedly arrested for a claim which was then jiending between the same parties in the circuit court of the United States for the district of South Carolina. The suit was brought for damages alleged to have been sustained by the failure of Plobby to indemnify the appellants against the claims of the Branch Hank of (he United States hereinbefore mentioned. It is true that the plaintifl's in the suit were advised by counsel that they could not be allowed for these damages in the proceeding in efjuity, because they were unliquidated; and they ought not there- fore be held accountal)h' for that error. Yet it is very clear that the suit should not have been brought; bc^cause these damages formed one of the items in conti'oversy between the 228 EQUITY PLEADING. parties in the suit in chancery, which had been so long pend- ing between them. And that court had not only jurisdiction over the subject, but it was bound to ascertain and allow them before it could adjust the account and grant the relief to which the complainant was entitled. The mode by which a court of chancery ascertains the amount in cases of that description, is either by a reference to the master or by send- ing an issue of quantum damnificatus to be tried by a jury. The cases upon this subject are collected and arranged in 2 Story's Commentaries on Equity, c. 19, p. 104. And the damages in question were in fact ascertained by the court, and deducted from the amount due to Hobby in the decree now under examination. But, nevertheless, as Kelsey in this respect acted by the advice of his counsel, if the settlement which afterwards took place had been confined to the claim he was seeking to enforce, the agreement between the parties to fix the damages at any particular amount would have bound Hobby, unless it was evidently unreasonable and exorbitant, or he could prove it was obtained by improper means. The mere circumstance of his being detained in New York, by reason of the process issued to recover the amount claimed, would be no objection to the validity of the agreement. But while Hobby was detained in the manner before stated, and unable to procure special bail, Kelsey obtained from him a release of matters not embraced in this suit, and much more imj)ortant in amount, and which Hobby had been insisting on for years, and for which he was prosecuting a suit in the circuit court. Neither the circumstances under which the release was taken and the account connected with it settled, nor the contents of these papers, can entitle them to weight in a court of equitv. There is no evidence of any negotiations between the parties respecting this arrangement previous to the interview at which these papers were signed. Upon that occasion one of the clerks of Kelsey was present. He is one of the witnesses to the release. He does not say who proposed a settlement, but he states that the account admitted by Hobby had been prepared a long time before by one of Mr. Kelsey's clerks; that the examination of the account did not take more than ten minutes. And the interview at which it was acknowledged and signed, and the release executed, and a letter written by Hobby to his counsel in South Carolina to discontinue the suit against Kelse}'' and M'Intyre, did not last more than an hour. DEXTER V. ARNOLD. 229 This is the testimony of the witness. No hooks or papers appear to have heen produced, or to have been in tlie city of New York at the time, in tiie |)Osse.ssion of eitlier Jiarty, ex- cept the account produced by Kelsey and signed by him and Hobby. And yet the release states that the ])arties had " come together and examined the subject-nnitter in dispute," and found that account correct, and thereby "admitted it to be correct and every entry in it." And the account, too, which is thus admitted, contains items for "exchange })aid," " loss by discount on money received in collection of the partnership debts," " rent for counting-room," traveling ex- penses, postage, clerk hire, incidental expenses, and sundry others which would have required much time to examine, and the production of many vouchers before Ilobb}^ could have known whether they were correct or not. The account in important particulars differs from the one on wliich Kelsey and M'Intyre had themselves relied in the circuit court of South Carolina; and is more unfavorable to Ilobby by about $20,000, than the one which Hobby had been so long insist- ing on in his suit. Such an account and release, executed under such circumstances, are not entitled to the considera- tion and weight which belong to instruments freely executed, and with opportunities of knowledge and examination. So far from strengthening the claims of the appellants, they, in the judgment of the court, are calculated rather to bring sus- picion upon them. They certainly cannot outw(Mgh the testi- mony taken in the chancery proceedings, and the decree of the circuit court is therefore affirmed. DEXTER V. ARNOLD. (Circuit Court for Rhode Island: 2 Sumner, 108-132. 1834.) Statement of Facts. — Bill in equity to redeem a mort- gaged estate. The case came on to be heard on the report of the master, to whom the cause was referred for an account. The report of the master is very long, and there were numerous exceptions to it, filed by both parties. The general facts in the case appear in 1 Sumner, 101), to which inference is made. The exceptions of the plaintilTs ai'c : (1) That the master stated that there was due on the mortgage -SI ,o()('».3(), whereas there was nothing due. (2) That the mastei' should have in- quired into the original consideration of the mortgage, which 230 EQUITY PLEADING. he declined to do. (3) That the master allowed to defendants the full amount of the sui)posed consideration, which he should not have done. (4) That the master allowed a deduction to the mortgagee from the rent of the premises, because they be- came dilapidated while in his hands, whereas he should have charged the full annual value, deducting a proper sum for repairs. (5) That the master charged nothing to the mort- gagee for the dilapidation of the buildings while in his posses- sion. (6) That the master charged nothing to the mortgagee on account of a note" for £100, which it is alleged was twice paid to the mortgagee. (7) That the master refused to allow plaintiffs $192, paid by mistake to the mortgagee for insurance on the schooner Fame," no such sum being due for insurance. (8) That the master refused to charge the defendants with $573.87, paid to the mortgagee to take up Rogers' note against the mortgagor, and to receive evidence on that subject. (9 and 10) Other sums which the master refused to allow. (11) That the master made improper charges of interest. (12) That the master did not require of defendants the production of tiie cash books of the mortgagee. (13) That the master refused to permit j)laintiffs to examine such books as he did recjuire defendants to produce. (14) Unimportant. (15) That the master refused to receive evidence impeaching the account of 1801. (1(3) Unimportant. Tlie defendants' exceptions to the report, cited by the court in the opinion : (1) That the complainants were allowed one- third of the amount received for the Fox Point lots. (2) That the master has charged the estate of Tliomas Arnokl with rents that were never received by him. (3) That the master allowed a larger amount of rents tlian are contained in the accounts of the administratrix. The other exceptions of the defendants were unimportant. Opinion by Story, J. The exceptions have been argued by the learned counsel at large, but our opinion will be briefly stated upon all of them, as we do not think that they involve any serious difficulty. We shall first consider the exceptions of the plaintiffs. 1. The first exception is utterly unmaintainable. It is too loose and general in its terms and points to no particulars. It comes to nothing, unless specific errors are shown in the re])ort, and those errors, if they exist, should have been brought directly to the view of the court in the form of the DEXTER V. Ar.XOLI). 201 exception itself. At present it amounts only to a "eneral assi^innKnit of errors, and the argument on this exception has shown none. 2 and 3. The second and third exce})tions ap})l_v to tlie refusal of the inaster to incjuiix' into tlie oi'ioinal consideration of the mortgage. Under tho circumstances the master was perfectly right. In the tirst place, in the account settled be- tween the original parties, on 31st of INIarch, 1801, the nioi't- gage was treated as a good subsisting mortgage for the full amount of the debt stated therein. In the next place the bill does not chai'ge tliat the consideration of the mortgage was nominal, or less than the amount stated therein ; or that there is any error or mistake therein ; neither does it ask for any examination or overhauling of the original considei'ation upon any alleged error or mistake. It was clearly, therefore, a matter not properly in issue before the master. See Cham- bers V. Gohlwin, 9 Ves. Jr., 265, 206. 5. The remarks dis})0se also of the fifth exception, which is founded upon the supposed dilapidations of the buildings while in possession of the mortgagee. There is no proof what- eyer that these were caused by his wilful default or gross neg- ligence ; but they were the silent eflects of waste and decaj^ from time. 6, 7, 8, 10. The sixth, seyenth, eighth and tenth exceptions are disposed of by two simjjle considerations. (1) They all relate to matter whicli had been already disposed of in a former suit (Dexter v. Arnold, 5 Mason, 304). (2) If Thomas Arnold (the intestate) was accountable at all for any of these matters, he was so in a suit brought against him as agent or administrator of Jonathan Arnold, and not in this suit, which is merely a bill to redeem a mortgage. 11. The eleventh exception proceeds upon the objection that the master has allowed interest where none was due. This exception proceeds u})on tlie supposition that the second and third excejjtions were well founded. AVe haye already decided that the master was right in holding the consideration stated in the mortgage deed to be the true sum due, as ascer- tained in the account settled in 1801. 12. The twelfth exception is, because the books of Thomas Arnold were not produced before the master, or recpiired by him to be produced. This is founded in a clear mistake, for the affidavits of Anna Arnold and James Arnold establish the fact that they were ]^roduced. 232 EQUITY PLEADING. 13. The thirteenth exception is to the supposed denial to the phiintitfs of the right of examining the books of Thomas Arnold, produced under notice before the master. This ex- ception has no facts on which to rest it in the master's report. The plaintiffs had no right to examine those books generall}' ; but only such parts as related to entries, charges and accounts relative to the matters in controversy in the suit. If we pass aside from the master's rej)ort, it appears by the affidavits already alluded to that a full examination as to these matters was allowed, so far as any of the books contained entries, charges or accounts relative thereto. 14. The fourteenth exception is, that the report states no reason for the refusal of Samuel G. Arnold to join in making repairs on the premises. That was not necessary. It was mere matter of evidence for the consideration of the master, in examining the point, whether there was any wilful default or gross negligence of the mortgagee in not making repairs upon the premises. 3. The third exception is, that the master has allowed a much larger amount of rents than is contained in the accounts of the administratrix of the mortgagee and admitted to have been received by him. We are of opinion tliat the master was right, for the reasons stated by him. The mortgagee kept no regular accounts ; and the master has, therefore, been com- pelled to exercise a sound discretion upon the whole evidence as to the amount with which he should be charged for rents and profits. The doctrine contained in Hughes v. Williams, 12 Ves. Jr., 493, and in Williams v. Price, 1 Powell on Mort., by Coventry & Rand, 949 (a), note; S. C, 1 Sim. & Stu., 581, and Anonymous, 1 Vern., 45, shows the true grounds on which courts of equity proceed in cases of this nature. 4. The fourth exception insists that the master should not have estimated the rents for which the mortgagee is charged upon his general judgment: but should have charged only such a rent as might have been obtained by a letting at pub- lic auction. W^e think otherwise. The master was bound to charge the mortgagee with a reasonable rent. What, under all the circumstances, was a reasonable rent was matter for the exercise of a sound discretion, upon all the circumstances of the ca.se. An auction rent would not in many cases aflbrd either a just or a satisfactory standard of the real value for wdticli the premises might be let, or at which the mortgagee should he entitled to occupy them. STORY V. r,iviN(;.sr<)N. 238 5. The fifth oxception is that the inastiT has reported that Thomas Arnold kept no regular accounts, which is an incor- rect statement. We see no proof of th^at. The master was the proper judge of that fact upon examining the books and the other evidence in the case. There is no evidence before us that establishes in the slightest degree that his conclusion was incorrect. 6. The sixth exception is founded on the supposed incor- rectness of the charge of cellar rent. But there is not any evidence whatsoever upon the face of the report which shows any such error of the ma.ster ; and, therefore, the report must stand. We cannot presume errors, or go into evidence in support of them which was not laid before the master, or brought by him to the notice of the court. Exceptions must be made to matters apparent upon the face of the report, or upon the accom})anying documents and proofs laid before the court upon the allegations and objections of the parties. 7. 8, 9, 10, 11. All the other exceptions are founded in ob- jections to the master's estimate and allowance of rents charged against the mortgagee. We are of opinion that, upon the cir- cumstances stated in his report, that estimate was })erfectly just and reasonable. It was a matter for his judgment ; and there are no facts in the case which impugn the ])ropriety or soundness of his conclusions. Upon the whole, our judgment is that all the exceptions on both sides ought to be overruled and the report ought to .stand confirmed. Decree accordingly. Note. — Only so much of this case is reported as rohites to Juiuity l'le;idin,i; and Practice. ] STORY V. LIVINGSTON. (13 Peters, 359-377. 1839.) Ojiinion by Mr. Justice Waynk. Statement of Facts. — This cause having been before this court at its term in 1837, it was then decreed that the decree of the district court, dismissing the bill of the complainant, should be reversed ; that the cause should be sent back for further proceedings in the court below, with directions that it should be referred to a master, to take an account between the parties. The mandate then recites the principles upon which the account was to be made; provides the time within which 234 EQUITY PLEADING. any sum that may be found to bc3 duo to either of tlie parties should be paid after the entry of a final decree in the court below ; directs, if a sum shall be found due to the complain- ant, a suri'ender and reconveyance of the property from the defendant to the complainant, or to such person or [)ersons as shall be shown entitled to the same ; and further orders, in the event of a sum being found to be due to the defendant, if it shall not be j'jiid within six months after a final decree of the district court upon the roaster's report, that the })ro}ierty shall be sold by order of the district court, at such time and notice as the court shall direct, and that the proceeds be first applied to the payment of the balance due the defendant, and that the residue thereof be paid to the complainant. In pursuance of the mandate, tlie district court ap))ointed Duncan N. liennen master, to examine into and report u})on tlie account according to the rules and principles established in the judgment of this court. The master was sworn in open court, faithfully to pei'form the duties of his a])pointment. On the same day the master ordered a meeting to be held on the 6th of March, which was adjourned to the 8tli ; when he commenced the i-eference by taking testimony in behalf of the complainant, and it was adjourned to the next day. ITie meeting was then adjourned to the 24th March, when other testimony was taken ; was then adjourned to the 1st April ; thence, on the application of tliC defendant, was adjourned to the 15th April, and the reference was closed the day after. All the meetings were attended by the parties ; the complain- ant being represented by counsel, and the defendant having been, personally present, aided by counsel. After these pro- ceedings were had, the defendant's counsel, in November fol- lowing, obtained an order from the court upon the complain- ant, to show cause why the "suit should not be stricken from the docket, the bill of the comj)lainant dismissed, or the suit abated;" which rule was returnable on the Jst December. The grounds relied upon to sustain this motion were : 1. That Edward Livingston, the former complainant, departed this life on day of , and before the hearing of the cause in this court at the spring term thereof in 1836. 2. The said Livingston departed this life before the making or enrollment of the decree at the spring term of the year 1836; conseciuently the court could not then entertain any jurisdiction of the cause. STORY V. LlVINciSTON. Z.U) 3. This cause lias never been regularly revived in the iiaiiio of the j)resent complainant; nor coukl it be so revived by the laws and usa<;es of chaiiceiy jtractice, ^Ji's. Ijvinoston claitn- inji; as a devisee. This rule was continued from time to time under sundry orders of the court, until the iSth of Deei'mbei', when the court rejected and overruled the motion. This motion we have noticed, not oidy because it was a sinii;ular attempt to oust the jui'isdielion of the conrt over the cause after it had been decided on its merits in the supreme court, and the court below was actinsj; under its mandate, but because from the time when it was made, and when the rule was granted, the defendant having not before objected to the reference to the master, and having joined in all the proceed- ings under that reference, it cannot be viewed in any other light than an attempt to prevent the master's report from being returned to the court, instead of contesting its conclu- sion, and the master's proceedings under the mandate, by regular exceptions. It presents an anomaly without any parallel in the history of chancery proceedings; placing an inferior tribunal, acting under the nnuidate of a superior, in the attitude of reversing the judgment of the latter; calling upon it to disregard the mandate altogether; to revoke its own proceedings under such mandate; and, in effect, to act in con- tradiction to the sole authority by which the di.strict court was in possession of the cau.se. But the motion being over- ruled, on the same day the master presented his rejwrt to the court, which was read and filed. The following exceptions were then made to the report of the master by the defendant: 1. That chancery practice has been abolished by a rule of the court, and such proceeding is unknown to the ])i'actice of the court. 2. The master has erred in not allowing to the defendant the $1,000, with interest, paid to Morse, or some part thereof. 3. The master's rei)ort does not show that it reports all the evidence taken before the master. 4. The master, in making his estinuites and calculations, has not pursued the mandate of the court. 5. It appears, from the master's re])ort, that the stores were rented from November to November; and he erred in assum- ing the 1st of April as the period of payment of annual rent. 6. A rea.sonable allowance should have been made to Story for the costs and risks of collecting rents. 236 PJQUITY PLEADING. 7. The master erred in all his charges against the defend- ant ; and failed to allow the defendant his proper credits. All of these exceptions, except the third, are irregularly taken, and might be disposed of by us without any examina- tion of them in connection with the master's report. They are too general ; indicate nothing but dissatisfaction with the entire report; and furnish no specific grounds, as they should have done, wherein the defendant has suffered any wrong, or as to which of his rights have been disregarded. Strictly, in chancery practice, though it is different in some of our states, no exceptions to a master's report can be made which were not taken before the master; the object being to save time and to give him an opportunity to correct his errors or reconsider his opinion. Dick., 103. A party neglecting to bring in objections cannot afterwards except to the report (Harr. Ch., 479), unless the court, on motion, see reason to be dissatisfied with the report, and refer it to the master to review his report, with liberty to the party to take objection to it. 1 Dick., 290; Madd., 340, 555. But without restricting excep- tions to this course, we must observe that exceptions to a report of a master must state, article by article, those parts of the report which are intended to be excepted to. Exceptions to reports of masters in chancery are in the nature of a special demurrer; and the party objecting must point out the error, otherwise the part not excepted to will be taken as admitted. Wilkes V. Rogers, 6 Johns., 566. The court directed the master to amend his report, so as to state that it contained all the evidence given under the reference, which the master did b}^ his certificate; and this disposes of the defendant's third exception. To that certificate the defendant's counsel did not object. In the subsequent proceedings in the court, upon the report, it was treated by both parties as conclusive of the fact that all the evidence had been disclosed in the report as it was originally made. The report was then before the court upon exceptions by the defendant, which were argued by the counsel of the respective parties; and the court overruled the exceptions on the 15th of January, and decreed the defendant to pay to the complainant, within six months from that day, $32,958.18, the sum found by the master to be due by the defendant to the complainant; and further " decreed that the master's report be in all other respects confirmed, and that the defendant conform to the STOllY V. LIVINGSTON. 237 decree of the supreme, court in tlic case." After this decree was made, the defendant tiled a {)etition for a re-hearin<;. The grounds taken in the petition are reasons against the confirmation of the report on account of the court's proceed- ings ujion it, by which the defendant alk^ged he had been deprived of an opportunity to exce})t to the report as it had been amended. Tliat the cause upon the report had not been docketed regularly for trial, on account of the master's having taken testimony viva voce, when it should have been by depo- sitions upon interrogatories ; that the court in its decree had not disposed of the question of costs ; and that the court, in its gen- eral direction to the defendant to do all things directed by the mandate of the supreme court, had left it uncertain to whom the defendant was to surrender and to convey the ])roperty. The court, after this petition had been answered by the com- plainant, heard an argument upon the motion. The judge finally overruled the application for a rehearing, and decreed that the defendant should surrender and reconvey the property described in the bill of complaint, to Louisa Livingston, widow and executi'ix. and devisee of Edward Livingston, deceased, and to Cora Barton, daughter and forced heir of said Edward Livingston, in conformity to the decree of the supreme court of the United States, and to the decree heretolbre made, in pursuance thereof, by this court. This decree was made on the 0th of February, 1837. The cause is now regularly before this court, on an appeal from the decree of the district court, overruling the defendant's exceptions to the master's report, and confirming the same. But before we consider the exceptions, we think it }>r()per to notice the petition for a rehearing. Upon any matters in that petition, not directly touching the master's report, but assum- ing what this court did or did not decide or direct to be done by its mandate, it is only necessary to repeat what this court said in Ex parte Story, 12 Pet., 343. "The merits of the con- troversy w^ere finally decided by the court, and its mandate to the district court requii-ed only the execution of its decree." As to the objection that the defendant had not an opportunity to except to the master's report as it was xnnended — it is founded upon a misconception of the fact; for the defendant's third exception, that the report did not show that it reports the evidence — the court sim])ly allowed the master to certify that it did. If this certificate had not been allowed by the 238 EQUITY PLEADING. court, the exception could not have i)revaile(l, unless the several allegations, that the evidence did not appear in the report, had been accompanied by a specification of the })artic- ulars in which it was deficient. On such an exception, sup])orted by the oath of the party making it, or without oath if the opj)Osite party joins in the exception without requiring the exce))tion to be verified by affidavit, the court would call upon the master to report the evidence. We have noticed this exception as a point of practice. The truth of the exceptions not appearing on the face of the proceedings, and not being su|>ported by affidavit or otherwise, the court cannot notice the exceptions. Thompson V. O'Daniel, 2 Hawk., 307. The next objection in the petition for a rehearing, that the master, under the order of the court, did not possess the power to take testimony, and that, if he did possess such power, then it was irregularly exercised, because it should have been by depositions upon interrogatories, we notice also, as points of practice, not now to be settled, but which have been long since determined. In a reference to a master for any purpose, the order need not particularly empower him to take testimony, if the subject-matter is only to be ascertained by evidence. And in taking evidence, though the better plan is to take the answers in writing, upon written interrogatories, he may examine witnesses viva voce, the parties to the suit being present, personally or by counsel, not objecting to such a course (as was the case in this instance), and joining in the examination. Such is the general rule in chancery. In many, if not in most, of the states in this Union, however, it is the practice for the master to examine witnesses viva voce, and to take down their answers in writing. But the objection in both its parts is answered and overruled by the twenty- eighth rule of practice for the courts of equity of the United States. That rule provides for bringing witnesses before the master, for their compensation, for an attachment for a con- tempt, when a witness refuses to appear upon subprona ; and the last clause of it, allowing the examination of witnesses viva voce, when produced in open court. We think the same reasons which allow it to be done in open court permit it to be done by a master. But it is said the decree of the district court does not pro- vide for the payment of costs. This, too, is a point of practice STOHY V. I.IVIXCSTON. 2'AO Avhicli, we rcMimrk. iilhhI not he a part ot" the decree or jiidi;-- iiieiit, thouiih it often is so; as the j)aynient ol" them in most cases depends ujion rules, and when miles do not ii})iily, upon the court's order, in diiecting the taxation of costs. We now proceed to examine the exceptions taken Ijy the defendant to the master's report. The first : "That chanceiy ])ractice has heeii abolished by a rule of the district court of Louisiana, and that sueli proceeding is unknown to the prac- tice of the court," is not an exception to the repoi't, but a denial of the propriety of the reference to the master ; also of the court's authority to make such a reference under the mandate, and involves the assertion that the rule, if any such exist, may control the mandate and set it aside as a nullity. No such rule appears in the record. If any such exist, it cer- tainly was disregarded in this instance (as it sliould be in every other by the court), or was not deemed a])i)licable to a case like the one before it We think the occasion, however, a proper one for this court to remark, if any such rule has been made by the district court in Louisiana, that it is in violation of those rules which the supreme court of the United States has passed to regulate the practice in the courts of equity of the United States. They are as obligatory ui)on the courts of the United States in Loni.siana as they are upon all other United States courts; and the only modifications or additions which can be made in them by the circuit or district courts are such as shall not be inconsistent with the rules pi'cscribcd. Where the rules prescribed by the supreme court to the circuit courts do not ap})ly, the [)ractice of the circuit and district courts shall be regulated by the practice of the high court of chancery in England. The parties to suits in Louisiana have a right to the benefit of them ; nor can they be denied by any rule or order without causing delays, producing unnecessary and oppressive ex|)enses, and, in the greater number of instances, an entire denial of (>fjuitable rights. The court has said upon more than one occasion, after ma- ture deliberation upon able arguments of distinguished coun- sel against it, that the courts of the United States in Louisiana possess equity powei's under the constitution and laws of the United States; that if there are any laws in Louisiana direct- ing the mode of )»rocedui'e in equity causes, they are adopted by the act of the 2r)th of May, LS24 (4 Stats, at Large. 02), and will govern the practice in the courts of the United States. 9 240 EQUITY PLEADING. Pet., 657. But if there are no laws regulating the practice in equit}^ causes, we repeat what was said at the last term of this court in Ex parte Poultney v. City of La Fayette, 12 Pet., 474 : " That the rules of chancery practice in Louisiana mean the rules prescribed by this court for the government of courts of the United States, under the act of congress of May 8, 1792, chapter 137, section 2 (4 Stats, at Large, 275). These rules recognize the appointment of a master. The court below, in making this reference, acted under them and the mandate, and it could not therefore sustain the exception to the master's re- port. On the second exception we need only remark that the master apprehended rightly the decision and mandate of the court. The payment to Morse by the defendant was not con- sidered an expenditure on account of the property nor on ac- count of Livingston. It was intended to be excluded from the credits to which the defendant was entitled. The third exception has been already disposed of. It was only a permission to the master to certify that his report con- tained all the evidence taken under the reference. The fourth and seventh exceptions, on account of their gen- erality and indefiniteness, may be considered in connection. The first of them is that the master, in making his estimates and calculations, has not pursued the mandate of the court ; and the seventh is that the master erred in all his charges against the defendant and failed to allow the defendant his proper credits. In what particular the mandate has not been pursued is not stated. It is a general objection to the whole report, imputing to the master a misconception of the princi- ples upon which the account was to be taken, and amounts to this, that, if the court shall see, upon the face of the report and the master's proceedings, error against the defendant, it will correct it, though no exception has been filed. In this view of it the defendant shall be protected, if the court shall detect error in the report. As to error in charges, and a de- nial of proper credits to the defendant, we remark that, with- out some specification of erroneous charge, and of disallowed credit, it is impossible to determine what the defendant objects to as a charge or claims as a credit. Was any credit refused which was claimed except that of the |1,000 to Morse? That we have said, was rightly refused. Was he not allowed all other credits on the general account of expenditures? Did the defendant, whilst the reference was in progress, or after the STORY \'. I.1VIN(;ST<)N. '2 \\ report U])oii it was made, elaiin any credit hy the cxliiljitioii of" any account ? Did lie ask to introduce any evidence to the master in sup{)()rt of" any credit? Did he chiim any other credit than such as are to be found in the account, «;iviiij>; on his own oath a statement of his expenditures, and of the rents of tlie property f"rom 10th August, 1822, to the 2()tli January, 1829? Nothing of the kind appears. On the contrary, there is in the report a statement by the master which is conchisive of the fact, as it has not been de- nied, that the def"en(huit, though repeatedly called upon, and after liaving repeatedly promised to give an account, and hav- ing had five weeks to furnish it, refused to give an}- account. The parties were summoned to the reference, by the master, on the ()th of March. On the 8th, the defendant Story ap- peared in person, accompanied b}' counsel. Upon his sugges- tion, however, that one of his counsel was absent from the city, and that he had been so much occupied as not to have had leisure to complete his account, with his request that the hearing should be postponed, though it was opposed by the complainant's counsel, the master adjourned the reference to give the defendant time to furnish his account, and to sur- charge the account of the expenditures and rents up to the last of .January, 1829. The right to correct any^ errors in that ac- count was conceded to him ; the account was given in evi- dence subject to such concession. Two witnesses were then sworn on the part of the complainant without objection and were examined by both parties. The meeting was then ad- journed to the next day, the parties again attended, but the witnesses who had been summoned not being present, the de- fendant again suggested the propriet}' of adjourning for a few days, when he should be ready to present his account, which he had almost ready. It was assented to. The meeting was adjourned to the 24th of March. On that day the ])arties ap- peared before the master, a witness was examined on the part of the complainant, and the defendant again declared he had been prevented by important business from completing his ac- count, and he requested a little more time to make it complete.. Tlie complainant's counsel consented to an adjournment to the • 5th of April. On that day the defendant again requested fur- ther time; the case was continued to the 15th of April, and! then defendant said he did not intend to furnish any account ;; but urged that, as the account of expenditures and rents up to> 16 ■'242 EQUITY PLEADING. the last of January, 1829, had been received as evidence, it must be considered as conclusive of the expenditures which had been made on account of the property. This was allowed to be correct. We have then the refusal of the defendant to fuiMiish an account, and ])roof that he did not claim any other credits than those in that account. With what propriety can a denial of credits be urged as an exception to the report? The defendant was the only j)erson who could furnish an account of the credits to which he supposed himself to be entitled. He refused to do so. To allow him to say that there is error in the report, in this respect, would permit him to take advan- tage of his own wrong, and to defeat tlie complainant's rights by artifice. Nor is the account of exjienditures and receipts iip to the last of January, 1829, now examinable (except as to mere errors in computation), either as regards the principal or interest ; the defendant being concluded by his admission of it, when he claimed the expenditures as a set-off against his own statement of the rents. What has been said of the fourth and seventh exceptions applies to the fifth, wdiich is, that a reasonable allowance should have been made to the defendant for the costs and risk of collecting the rents. If under the mandate any such al- lowance could be made, the claim for it should have been pre- sented to the muster, su]>poi'ted by evidence of what was the eustomaiT compensation for suc^h services, if the service is not compensated by a law of Louisiana. A mere claim for a rea- sonable allowance cannot give a right to any, and of course is no valid exception to the repoit. It is the case of a party be- fore a master, who merely claims for general expenses, without stating particulars. Under such a claim he will be allowed nothing. Methodist Ejdsc. C'h. v. Jaques, 3 Johns. Ch., 81. Six of the exceptions having been disposed of, the seventh only remains to lie considered. It is, '• that it appears from the master's repoit that the stores were rented from November to Noveml)er, and he eri'cd in assuming the 1st April as the ]»eriod of i)ayment of annual rent." It was said in argument, that computing the ])ayn)ent of anmial rent in extinguishment of the defendant's debt, on the 1st April, is in effect to deprive him of intei'cst for a ]);iit of the ye;ii\ as iho aggregate of the rent was not in fact received ; that it is to allow interest n))()n rents and ])r()fits, contrary to the mandate and established decisions. This would certainly be so if the rent had only STORY V. LIVINal. why should the whole debt continue to draw interest? Surely, to allow this would be to vary the obligations of these parties to t'aeh other, dillerently from what would be their resjiective ri.uhts in any other case of a debt drawino- interest, upon which a ])ayment has been made, which paid the interest and a i)art of the |ii-iiieij)al. Is there any diilerence in the efVect of a payment, whether made in person by the debtor or if it aiises from the income of his property ? The correct rule in general is, that the creditor shall calcu- late interest whenever a payment is made, 'i'o this interest the payment is first to be api»lied ; and if it exceed the interest due, the balance is to be apjilied to diminish the principal. If the payment fall short of tlie interest, the balance of inter- est is not to be added to the principal so as to produce inter- est. This rule is equally applicable whether the debt be one which expressly draws interest or on which interest is given in the name of damages. Smith v. Shaw, 2 Wash., lOT ; 3 Cow., note a, 87. This, then, being the rule, if the fact is probable in this case that the income of the propei-ty received at any time in the course of the year did })ay interest and a part of the principal, the defendant cainiot complain ; he being the receiver of the money, and i-efusing to give any ac- count of the aggregate or its parts when received, if the master has taken a date for the computation of the aggregate rent as payment, which places the parties upon an e(iualily. Tx^sides, the mandate does not restrict the right of the complainant to a credit for the aggregate of tlie rent at the end of the year. It does not allow interest upon the I'ent, but directs the ri-nts to be a[)j)lied to the payment of the sums incurred in building and re{)airing; secondly, to the interest on the sums which have been advanced on the loan, or in tlie im])rovenient of the lot; and thirdly, to the dischai-ge of the princii)al of the loan. The fair inference from the silence of tbe mandate, as to the time when the rents are to be civdited, is, that they are to be so when they are received, if the interest and ])art of the piin- ci})al are paid. This is the general rule for the api)lication of payments, and is the rule of e(iuity which does substantial 244 EQUITY PLEADING. justice. What, then, is the case of the defendant in this par- ticuhir? He has a debt drawing five per centum interest, yielding annuall}' $1,135.55, and is in possession of the pro- perty of the compLninant, giving a rent annually, after deduct- ing $700 for repairs and taxes, of $8,000. But, it may be asked, by what means or evidence did the master ascertain the amount of rents, and that they were paid at such times and in such amounts as to justify the computation of the annual aggregate as a payment before the expiration of the 3'ear? First, he must have known that leases of houses are not made, either in Louisiana or elsewhere, for the payment of the entire rent at the end of the year ; next he had an ac- count made by the defendant, verified by his oath, showing that foi' seven years the rents of this property were received by him, principally in monthly payments ; in the year 1828 alto- gether so ; and then at intervals of two, three or four months in sums over $1,700 up to $3,000. The rents received in January and February, 1828, exceeded the amount of interest upon the principal debt or loan by $600. The rent in that account received on the 26tli January, 1829, was $950, and the account states $1,000 as due on the 1st of February, 1829. The amount of the annual rent the master ascertained from the tenants, who were witnesses before him, not to be less than $8,000. Let it be remembered that the question now is, not whether the defendant shall pay interest upon rents and profits, but the time when he shall credit a payment upon the debt which discharges the interest and a part of the principal. His debt was carrying interest, and therefore his receiving the rents of the property at any time, in a sum sufficient to pay the interest and a part of the principal, should be applied at the date when it was received. The defendant could not claim an exemption from the operation of this general rule, in virtue of any relation between himself and the complainant, as trustee, bailiff, attorney or agent of the latter, who was always ready to pay wdien called upon, who had not mingled the rents with his own money, and not used it as his own, or that it had been kept on hand to abide the decree of the court. If he had been in either of these attitudes, especially the latter, his own oath, if not controlled by other testimony and the cir- cumstances of the case, would have entitled him to a continued accumulation of interest upon the debt, without any credit of the rent, until the final decree had directed a sum to be paid STOKY V. LIVINGSTON, '2\o to the c'oni{)l;iinant. Under the cireiimstaiu'es oi" tliis ease, the defendant i-et'using to give any aeeount, yet admitting that he had reeeived the rents at intervals in the year ; wiien we consider such to be the usual way of renting liouses, he having agreed that the certificates of the tenants should be received as evidence of the amount of i-ents respectively paid l)y them, the tenants having proved the amount of tlie annual rent of the premises, we conclude that the master did right in assuming an intermediate point in the year for the computation of the annual amount of rent, in the absence of all ])roofs when its parts were paid ; and that it was the fairest way of carrying out the substantial intention of the mandate of this court. But suppose, as was urged in argument, that the mandate had directed an annual ap})lication of the rent of the premises to the payment of the debt of the defendant, without specifying that the interest was to be calculated to a date contempor- aneous with the last payment of the rent, and the debt was one carrying interest de die in diem. The mandate could onlj' be executed according to the general rule in the case of such a debt by making every receipt for rent in discharge first of the interest, then of the princi})al. liaphael v. Jjoehm, 11 Ves., 92. The mandate is to be interpreted according to the sub- ject-matter to whicli it has been ai)plicd, and not in a manner to cause injustice. This is not like the case of a decree directing annual rents, with the view of compounding interest. The (juestion now under consideration has been ruled as it is now decided, in Bennington 1\ Harwood, 1 Turn. & Kuss., Cli. Hep., 477, a case upon a master's report of an account, under a decree that the master sliould set an annual value by way of rent ui)onthe premises, the mortgagee being in pos.session ; the master of the rolls decided that a mortgagee can never receive more than his principal and interest, and says : " Now if in the early part of the year a payment is made to him, exceeding the interest which is then due, and he is nevertheless allowed interest on the whole of his principal down to the end of the year, what is the profit which he derives IVoiii his moi'tgage, in the inteival between the date of that payment inid the date of the animal rent? It is clear that a part of his j)rincipal lias been ic- paid to him, and yet he receives interest upon the whole of it; in other words, he gets more than five percent, on the sum for which he is actually a creditor. Supi)Ose that the sum jiaid 24G EQUITY PLEADING. to Eadon on tlie 2d February had been equal to the whole of the £500, with the arrears of interest calculated to that day, would he have been entitled to interest Uj) to the 5th of July? Is it i>ossible that such should be the effect of a direction to make annual rents? The sums which a mortgagee in posses- sion receives in respect of the mortgaged premises, at times intermediate between the dates of the annual rents, must be applied, when they exceed interest, to the reduction of the principal; and in the present case that course is clearly pre- scribed by the very words of the decree." Now, what was the decree in Bennington v. Harvvood, 1 Turn. & Russ., 477? It was the usual decree against a mortgagee in possession, con- taining the coinnion directions that the master should tax him the costs of suit, and so set an annual value by way of rent U[)on the premises, with further directions that the sums received in February, 1805, vvere to be applied forthwith, first to the discharge of the then existing arrear of interest, and next to the diminution of tlie principal. The master made the rest on the 5th July, instead of doing so in February; and the counsel contended in that case, as counsel have done in this, that a direction for annual rests excludes all rests which are not annual. But that position was not sustained by the master of tlie rolls, on general princii)les, though he concludes by saying in the [)resent case, " that course is clearly pre- scribed by the words of the decree." The defendant here is substantially a mortgagee in po.«session, having a debt due to him, carrying interest de die in diem, and must abide the general rule for the a{)[)li('ati(>n of payments to it. This, then, is not a case in which the defendant has been deprived of a day's interest by the master's report, nor one in wiiich the interest has been allowed upon rents and profits; but a case in which the application of a sum received by the creditor is made to prevent his whole debt from drawing interest after a part of it was probably paid. Of this there is a violent presum])tion. The general principal is, as it was ruled in Breckenridge v. Brooks, 2 A. K. Marsh, 341, that a mortgagee in possession is not to pay interest upon rents; but as the chief justice said in that case : " We will not say there may not be special circumstances which would justif}' allow- ing interest upon rents received by a mortgagee. We say in this, that whenever a mortgagee in possession, having a debt due to him, carrying interest de die in diem, shall collect an STORY V. LIVINGSTON. 'Zn / amount of rent which will extinguish the inteivst and a part of the principal, that he is bound so to apply it." In Fen wick V. INIacey, 1 Dana, 28(), rents received by a mortgagee were directed to be applied as they accrued, to kee}) down the interest. In Reed v. Lansdale, Hard., 7, it was ruled that the equitable rule in redeeming, when the mortgagee is in posses- sion, is to charge the profits of the mortgaged property against the principal and interest. Having thus disposed of the exceptions to the reiiort, and considered the principal argument of counsel against its con- firmation, we remark that there is nothing on the face of the report adverse from the defendant's rights which should cause it to be set aside. Even with the comj)Utation of the rents as a credit on the 1st April, he is still a gainer ; for the ditlerence between the calculation so made, and what would have been the amount he would have received if the rents had been credited on the 1st November, is more than compensated by the use of large sums of money received by him as rent, after the total extinguishment of his debt. The complainant, how- ever, took no exception to the report, and it must stand good against her. We notice in conclusion an objection to the rej^rt urged in the defendant's petition for a re-hearing, and in the argument of the case. It is, that the decree of the court below is incon- clusive as to whom the property is to be reconveyed. This is not an objection which the defendant can be permitted to urge. When he shall obey the decree in reconveying and surrendering the property, his responsibility will be at an end. As to the defendant, the decree of the court is conclusive against all persons who may legally claim from him any in- terest on the property as devisee or heir of Edward Living- ston. As to those, the law of Louisiana fixes their I'cspective rights, and upon those rights this court has not, nor does it intend to adjudicate in this cause. The general rule certainly is, that all persons materially interested in a suit ought to be parties to it, either as plaintiffs or defendants, that a comjdete decree mav be made between those parties. Caldwell v. Taggart, 4 Pet., 190. But there are exce])tions to this rule, and one of these i.s, where a decree in relation to the subject-matter of litigation can be made without a person Avho has an interest having that interest in any way concluded by the decree. Bailey v. 248 EQUITY PLEADING. Inglee, 2 Paige, 278. See, also, Joy r. Wirtz., 1 Wash., 577, where the rule is comprehensively expressed in respect to active and passive parties; and where a party is not amenable to the process of the court, or where no beneficial purpose is to be effected by making him a party, such interest must be a right in the subject of controversy, which may be affected by a decree in the suit. Such is the case as to Cora Barton in this cause. The subject-matter is to obtain from the defend- ant money decreed to be due to Edward Livingston, and the surrender and reconveyance of property forming a part of the real estate of Edward Livingston. After his death his widow, as executrix, was made a patty to the bill; and the decree in that suit cannot in any way determine the rights of Cora Barton in her father's estate. Besides, if there was any force in the objection it comes too late; for where a complainant omits to bring before the court j)ersons who are necessarily parties, but the objection does not appear upon the face of the bill, the proper mode to take ad- vantage of it is by plea or answer. If the objection appears on the face of the bill tlie defendant may demur. Mitchell v. Lenox, 2 Paige, 280. The objection of a misjoinder of com- plainants should betaken either by demurrers or in the answer of the defendants ; it is too late to urge a formal objection of this kind for the first time at the hearing. Trustees of Water- town V. Cowen, 4 Paige, 510. So, also, it was ruled in 3 Paige, 222. We might crowd this opinion with decisions to the same point from the English and American chancery reports. But further the objection cannot prevail, for it does not show that the process of the court could reach Cora Barton. In Mallow V. Hinde, 12 Wheat., 193, it was ruled that wherever the case may be completely decided as between the litigant parties, an interest existing in some other person whom the process of the court cannot reach, as if such person be a resi- dent of another state, will not prevent a decree upon the merits. And in the same case it was decided, where an equity cause, ma}' be finally decided as between tiie parties litigant without bringing others before the court, who w'ould, generally speak- ing, be necessary })arti6s, such parties may be dispensed with in the circuit court, if its process cannot reach them, as if they are citizens of another state. But when the rights of those not be- fore the court are inseparably connected with the claim of the parties in the suit, the peculiar constitution of the circuit court CriAPPEDKI.AINK V. DllClI KN AUX. 211) is no ground for (Uspciising- with such parties. 12 Wheat., 194. In whateviT point of view, therefore, the ohjection is considered, whetlier as to the interest of Cora liarton in the suit, the time when the objection has been made, or the man- ner in wlneii it is made, in not showin<2: that the jtrocess of the court could have reached her, is of no moment in this ease. This court, in regard to her, only directs her name to be inserted in the re-conveyance, it having been ascertained by the master that she is a forced heir of Edward Livingston, and tliat fact being admitted by the defendant, and the admission of its correctness being the foundation of his objection. The decree of the court below afiirming the master's report, and directing a reconveyance of the property, is affirmed. CHAPPEDELAINE v. DECHENAUX. ( 4 Cranch , 306-:^! G. 1 808. ) Error to U. S. Circuit Court, District of Coorgia. Opinion by Marshall, C. J. Statement of Facts. — The bill in this case is brought to set aside a stated account whicli was signed by Dumoussay and Chappedelaine in July, 1792, on the suggestion of fraud on the part of Dumoussaj' ; or, if it be not set aside, to correct its errors, and to obtain a settlement of transactions subse- quent to that account. The stated account is pleaded in bar ■of so much of the bill as rec|uircs that the subject should again be opened ; and the })articular errors assigned, with the excep- tion of one in the addition, are denied in the answer. That the plea in bar must be sustained, except so far as it may be in the power of the representatives of Chappedelaine to show clearly tliat erroi-s have been committed, is a ))roposi- tion about wliich no member of the court has doubted for an instant. No practice could be more dangerous than that of opening accounts which the parties themselves have adjusted, on suggestion supj>orted by doubtful or by only probable testimony. 15ut if palpable errors be shown, errors which camiot be misunderstood, the settlement must so far be con- sidei'ed as made upon absolute mistake or imposition, and ought not to be obligatory on the injured party or his re[)re- sentatives, because such items cannot be supj)0sed to have re- ceived his assent. The whole labor of proof lies uj)on the party oljjc.'cting to the account, and errors which he does not plainly establish caniK^t be suj)j)Ose(l to exist. Uj)on this 250 EQUITY PLEADING. principle, the ivpoi't of the auditors in this case, and the ex- ceptions to that report, so far as respects the stated account^ are to be consicU'i'cd. The first exception rehites only to the manner in which the auditors understood the order referring the accounts to them, and need not be considered, since the sole iiHjuiry will be, whether they have in fact made any de- duction IVoin the stated account wdiich was not warranted by the interlocutory order, an order made on the principles which this court has already declared to be correct. 'J'he second ex- ception refers to the particular deductions made by the audi- tors. The first is, that the item in the stated account of (304Z. 6s. 5(/. is rodueed to 333^. Os. 8(/. The stated account betw'een the ])ai'ties, marked in the proceedings as the exhibit A, con- tains this item, and states it to be one-tiftlT of the expenses for disbursements on the island of tSapelo, which was the joint property of a cfunpany consisting of five, of which Dumoussay and Chai)pedelaine were partners. The items wliich composed this general account are all contained in exhibit F, stated by Dumoussiiy on the 3d of May. J 792, and assented to by Chap])e(lelaine on the 23d of July, 1792, when the stated account w;is s'gned. The total of those disbursements is 4,224^. 3.S. .SlW..^lnd the balance upon the account is 3,021/. 12s. Ur/., the fifth of which is 004/. G.s. 5c/. In their ex]il;inatorv report the auditoi's say that they took as the basis of this reduction an account settled by auditors in a suit decided in the circuit court of Georgia, which was instituted by IJoisfeillet, one of the absent partners, against Dechenaux, who was executor both of .Dumoussay and Chap- pedelaine. TIk^ auditors in that case were examined, and they de[)Ose tlnit their corrections were made on the proof of double cnti'ies, false charges, omissions acknowledged l)y the executor of Dumoussay, and charges not [)roper to be made against Boisfcillct. 'I'his testimony would of itself be sufficient to convince the court that injustice was done in the settlement of July, 1792, l)ut would not show explicitly the amount of that injustice, and enable them to say wdiat deductions from that settlement ought to be allowed, because, as was well observed by the counsel for Dechenaux, items might be prop- erly chargeable to C!happedelaine of which Boisfeillet ought not to bear ;i pnrt. The court, therefore, sought, in the docu- ments connected with the report, for that more explicit in- formation. Upon looking into the exhibit F, there are, upon CHAPPIiDKLAINE V. DECliENAlX. 251 the face of the paper, obvious errors, whicli (leiiiuiisti'ate the incorrectness of that statement, and the excessive inattention of Chappedelaine. Tlie first item on 'the debit side of tliis exhibit is the sum of 3,571/. 3s. 8^d. disbursed for Sajjclo. The funds for tliis disbursement were in part in the hands of Diimoussay, as the remnant of advances previously made by the partners. To this remnant he states himself to have added 2,368/. 12.s. OJd from his private funds. On this advance made by himself in Georgia, he charges the com|)any fifteen per cent., amounting to 354/., on account of the dillV'r- ence of exchange between money in France and in Georgia, or, as he expresses it, for exchange, freight and insurance. This charge has been rejected in the accounts of all the part- ners, for many obvious reasons. It is sufficient to observe that as this money was advanced in Georgia by Dumoussay, and repaid to him in Georgia by the partners, there was as much reason for making these charges on the repayment as on the original advance ; and with respect to Cha{)pedelaine, it is still more inadmissible, because he had previously advanced his portion of this money to Dumoussay, and had allowed him fifteen per cent, for these charges, in a deduction from that advance, so that this charge, with respect to Chappedelaine, is double. The third item in this exhibit is a charge of 200/. as one 3' ear's interest on 2,368/. 12s. O^d. This is more than double the real amount of interest. There is also in the credit side of the account an error of 100/. in the addition. The errors apparent on the face of the exhibit F amount to 611/., and these errors are of such a descri))tion as strongly to characterize the stated account of July, 1702. In the account stated by the auditors, there are omissions of moneys received by Du- moussay, and admitted to be chargeable to him in this account with the company, amounting to 180/. 10.?: 10c/. The account containing these incontestable errors was sub- mitted to auditors and still further reduced by them. Several of the small errors which they have detected are perceived, but the whole cannot be traced by this court without engaging in the laborious task of auditors, which is incompatible with their duties. To that account the executor of l)umoussay, who was also the executor of Chappedelaine, was a party, and had a right, with respect to Boi.sfeillet, to rely upon the stated account of July, 1702, signed by Chappedelaine, because Chaj)- 252 EQUITY PLEADING. pedelaine was the attorney in fact of Boisfeillet, and because Boisfeillet had sanctioned that settlement, and had assumed the payment of liis part. Yet in that case the deductions from that account were made which the auditors in this case have taken as the basis of their settlement, and those deduc- tions were made in consequence .of double entries, false charges, and charges not admissible against Boisfeillet. The great difficulty in admitting such an account, under such cir- cumstances, consists in the uncertainty of the amount of those charges which were rejected as being inapplicable to Boisfeillet. This difficulty is removed, in a great measure, by inspecting the report in the present case. In that report the auditors take up the items which were rejected on this principle, and charge them to Chappedelaine ; so that, in truth, the altera- tions made in this item are all founded on eri'ors which the auditors have corrected. The second item of this exception is that the auditors reduced the sum of 336/. 16.s. 8d., admitted in the stated account as being one-fourth of the purchase and expense of Jekyll, to 311/. 9s. Gd., making a difference of 251. 7s. 2d. This item in the exhibit A, which is the stated account, is the result of exhibit G, which is the account of Jekyll, as settled between Dumoussay and Chappedelaine. There is an obvious error of 4/. Ids. lOd. in the division of 3/. lO.s. in the hire of negroes, and the residue of the sum deducted is on account of the same charges on the moneys advanced for Jekyll, which were made on the moneys advanced for Sapelo, and which are rejected for the same reasons which were assigned for their rejection in that item of the account. 'The auditors also reduced the sum of 990/. 3s. Id., assumed by Chappedelaine for Boisfeillet, to the sum of 410/., making a difference of 580/. 3.s. Id. Nothing can be more obvious than the propriety of this reduction. Dumou.ssay charges Cliappedelaine with the debt of Boisfeillet, amounting, as he says, to 990/. 3.s. Id., which Chappedelaine assumes as the attorney of Boisfeillet. In a suit to which the executor of Dumoussay is a party, this debt a})[)ears to have been only 410/. No man can hesitate to admit that Chappedelaine must have credit with Dumoussay for the difference between the sum alleged to be due and the sum actually due from Boisfeillet. The auditors also struck out of the stated account the sum of 554/. 96'. 4c/., assumed by Chappedelaine for one of CHAPPKDELAIXK V. DRCIIEN'AUX. 253 the absent jiartnei's, that hi'in^ consicU'rcd hy mistake as the share of that absent partner in the expenses of 8a|)chj. The sum aetually due by that partner was afterwards paid by himself to the executor of Dumoussay. The court is satisfied, from the evidence, that this payment was made to Declienaux as the executor of Dumoussay. 'J'he assumpsit of Cha])pede- laine was essentially as security for the absent partner, who still remained a debtor, and when the j)rincipal did himself pay what he owed to the original creditor, the assumpsit of ('haj)]U'delaine was of no further obligation. Although this was not an error in the account when settled, exce])t so far as this charge exceeded the sum with which the absent partner was really chargeable, yet it becomes an item which can no longer be retained as a charge against Cha})pedelaine, and in reforming their accounts it nuist be excluded from them. There is also added to the credits of Chappedelaine the sum of 26^. 18.S., which the auditors state to be the difference between the amount of a receipt given by Dumous.say and the sum actually debited to him in the accounts between the parties. These several errors make up the sum of 1,457/. S^'. Ad., from which is to be deducted the sum of 6(57/. lO.s. lf(i., admitted on the stated account to be due from Chappedelaine to Du- moussay. The balance standing to the credit of Chappede- laine would be. on the 30th of April, 1792, 789/. 18s. 2|f/. The auditors state this balance at 1,346/. lO.s. Id. But from this balance, reported by the auditors, is to be taken the sum of 305/. 13s., allowed by Chappedelaine on the repayment in Georgia of money lent by him to Dumoussay in France. This sum has been disallowed by the auditors, but was allowed by the circuit court, and is allowed by this court. This would re- duce the report of the auditors to 1,030/. 17s. 7d., exceeding the balance which is here supposed by the sum of 240/. 19s. 4|c/. The greatest part of this excess is produced by one-third of merchandise sold and not entered in the account, and by a credit for continuing interest up to the 30th of April, 1792, on Chappedelaine's money in the hands of Dumoussay, which credits had been omitted in the stated account without any api)arent reason, and must therefore have been among the nu- merous inaccuracies of that account. The residue of this ex- cess is said by the auditors to be produced by numerous minute errors detected by a laborious investigation of all the accounts between the parties. This court cannot ]»ursue them in that 254 EQUITY PLEADING. investigation. Bnt in a case so replete with errors, which mark excessive negligence on the one side, and which can scarcely be ascribed to mistake on the other, the court is of opinion that the report of the auditors stating that these corrections were made on the inspection of the vouchers and entries which were laid before them, ought to be received, unless the person tak- ing the exception had himself required the testimony on any particular point to which he objected to be submitted to the court, or had required a special statement from the auditors, exhibiting the reasons for their opinion on the particular point. The balance due to Chappedelaine on the 30th of April, 1792, is so much of the loan made by him to Dumoussay, in France, which remains un[)aid. By the contract between the parties, that loan was to carry an interest of six per cent, per annum until i)aid. The court, therefore, cannot consider it as a claim on an unsettled account, or as carrying interest at the rate established in Georgia. It is still governed by the law of the contract, and must carry interest at the rate of six per cent, per annum. To the report, so far as it respects the ac- counts subsequent to the 30th of April, 1792, a general excep- tion is taken, which is sufficiently repelled by the answer of the auditors. They say, if, in the opinion of the defendant below, the auditors admitted any charge against Dumoussay, which was not sufficiently supported by testimony, he ought to have obtained a special statement from the auditors, or have made a special exception whicli would bring the testimony on the pat ticular point befitre the court. The only objection which the court can notice is the allegation in the exception that the auditors have j)roceeded on accounts rendered by Dechenaux, without allowing him a credit which he claimed in those ac- counts. That credit is the balance appearing to be due to Dumoussay by the stated account of July, 1792. But that balance was entirely changed. The item was fully disproved by the testimony laid before the auditors. Dechenaux did not then withdi-aw liis account, and require the plaintiff below to su})i)()rt his claims by other vouchers. It was clearly in the powa^' of the {)hiintiff" to have done this, for he might have forced Dechenau.x to produce the entries and vouchers from which he had made out the account exhibited by himself. By leaving tliis account with the auditors without objection, he acquiesced in their considering as correct the items it admitted. MCMICKEX V. PKPvIX. 255 This bill was brought to correct the stated nccduiit of .hily, 1792, and to settle the accounts between the jtartics sul)sequent to that period. The delendant exhibits the nccounts subse- quent to that period, but claims to set against tlu'iii the Iml- anoe due to his testator under the settlement of IT'.fJ. On those subsequent accounts that balance has no iiilhn'ncc. Hy introducing it into an account he was compellnhlr to render, he cannot ilestroy the eflect of that account. Had lu! intended to rely on this circumstance, he ought to have made the ])oint before the auditors, and thus have enabled the plaintill'to take other measures to substantiate his claim. 'l\\v auditors say they " admitted the account })resented by the deU'ndant ; " but this must be understood with the exception of the balance which he claimed under the settlement of July, 171)2. It does not appear from their re])ort that the claims of the ])laintiff below rested on that account so far as it went ; but it is j)rol)- able that further research was deemed unnecessary. The court cannot say that in this the auditors erred. The decree of the circuit court is affirmed, so far as it accords with this opinion, and is reversed as to the residue. McMlCKEX V. PERIN. ( 1 8 Howard, 507-5 1 1 . 1855. ) Appeal from U. S. Circuit Court, Eastern District of Louisiana. Opinion by Mr. Justice ('.\mpbell. The appellant further objects that his debt was not accu- rately ascertained by the master uj)on the decree of reference. In 8tory v. Livingston, 13 Pet., 359, this court decided that no objections to a master's report can be made which were not taken before the master; the ol)ject being to save time, and to give him an opportunity to coi-rect his errors and reconsider his opinion. And, in Heyn v. Jleyn,. Jacob., -li), it was decided that, after a decree pro confesso, the defend.-nit is not at libert}' to go before the master without a special order, but the accounts are to be taken ex parte. This court will not revicnv a master's report upon objections taken here for the first time. Our conclusion is, there is no error in the finnl decree ren- dered in the circuit court. At a subsequent term, the ap{)ellant filed a petition in the circuit court, alleging that he had been deceived 1)v the appellee in reference to the prosecution of tlie bill, and had 256 EQUITY PLEADING. consequently failed to make any appearance or answer, and that he had a meritorious defense. He prayed the court to set aside the decree, and to allow him to file an answer to the bill. This petition was dismissed. We concur in the judg- ment of the circuit court as to the propriety of this course. This court, in Brockett v. Brockett, 2 How., 238, determined that an appeal would not lie from the refusal of a court to open a former decree, though the petition in that case was filed during the term at which the decree was entered. In Cameron v. McRoberts, 3 Wheat., 591, it decided that the" circuit courts have no power to set aside their decrees in equity, on motion, after the term at which they were ren- dered. These decisions are conclusive of the questions raised upon the order dismissing the petition. The decrees of the circuit court are affirmed, with costs. [Note. — Only so much of this case is reported as relates to Equity Pleading and Practice.] GAINES V. NEW ORLEANS. (Circuit Court for Louisiana : 1 Woods, 104-112. 1871. ) Opinion by Bradley, J. Statement of Facts. — In these cases the defendants except to the master's report. It does not appear, by the report of the master's minutes, that the exceptions were taken before him. The rule of practice is that no exceptions will be heard by the court which have not been made before the master, so as to give him an opportunity of considering the same and cor- recting his report. But as counsel on both sides have evi- dently acted under a misapprehension of the rule, I will not overrule the exceptions on that ground, especially as some of them are of great importance to the rights of the parties. But it is desirable that the rule should be observed, and here- after, in the absence of very special circumstances, the court will feel bound to enforce it. It was declared by the supreme court of the United States in McMicken v. Perin, 18 How., 507, and in other cases there referred to. The principal exceptions are : 1. That the defendants did not realize the rents and profits which the master has charged them with. As this is a matter of fact arising from the evi- dence, the court will not undertake to re-examine and re-try the whole case ; but will allow the report to stand, unless W(Mil) \'. MANN. 257 some particular matter is pointed out in wliicli tlu' master has committeil an error, or unless it be shown that he has adojited some erroneous principle on which his account or calculation is based. [NoTK. — Only so iinicli of tliis c:ise is reported as relates to Kquity I'leading and Practice.] WOOD V. MANN. (Circuit Court for Massachusetts: 2 Sunnier, 31 (',-330. 183(5.) Petition to take additional testimony after publication. The facts appear in the opinion. Opinion by Stoky, J. Of the materiality of the testimony now proposed to be taken no doubt can be entertained. It goes to establish many of the leading points of fact in controversy between the parties; and if not vital in the cause, it is on all sides admitted to have a most stringent force and pressure. It is under circumstances so rare and so novel that this court is called upon to decide one«of the most important and delicate questions of practice; than which, indeed, few, if any, can be presented better deserving of deliberate consideration and striking deeper into the foundations of equity jurisprudence. It is upon this account that I have taken time to examine the whole subject with all the aids which could be derived IVom the labors of counsel and my own auxiliary researches, feel- ing, as I do, an anxious desire to perform on the present occa- sion exactly what, upon the most careful survey of principles and authorities, it is my duty judicially to perforin. The general rule in equity proceedings is, that, after publi- cation of the testimony, no new witnesses can be examined and no new evidence can be taken. This rule is at least a^ old as the time of Lord Bacon, among whose ordinances in- chancery we find the following: " No witnesses shall be ex- amined after publication, except by consent or by special order ad informandum conscientiam judicis; and then to be^ brought close sealed up to the court to peruse or publish as. the court shall think good." The true exposition of the latter qualification of this rule would seem to be that the new evidence to inform the conscience of the judge should not be- taken but upon or after the hearing, when the judge himself entertains a doubt, or when some additional fact or inquiry is indispensable to enable him to make a satisfactory decree. 17 258 EQUITY PLEADING. So was the doctrine held in Newland v. Hoiieinan, 2 Ch. Cas., 74; and it is strongly fortified by what fell from Lord Man- ners, in Savage v. Carroll, 2 Ball & Beatt., 444, and by the master of the rolls in Parken v. Whitby, 1 Turn. & llass., 306. Except for such purposes and under some special order of the court itself at or after the hearing, no such testimony, taken after publication, is now deemed admissible, at least unless under extraordinary circumstances, under the rules. The practice of taking such testimony before the hearing, and keeping it sealed up to be used by the court at the heai'ing, if it should be deemed meet, is said by the text-writers to have fallen into disuse, and not to have been in practice for more than a century. Hinde's Practice, 316 ; Beames' Orders in Chanc, 33, notes 117 and 118; Dalby v. Mace, Toth ill, 191 ; Carey's R., 83 ; Wyatt, Tract. Register, 354, 355 ; Willan V. Willan, 19 Ves., 592. There is an old case reported in Carey's Rep., 83, which sViows what the old practice was ; and I quote it in the very words of the report. " Upon affidavit made by the plaintiff, that since publication granted he had divers witnesses (setting down their names) come to his knowledge ; therefore oi'dered he may examine them before the examiner ad injorwaiiduni couscientiantjndicis.'^ No other circumstances are stated ; and therefore it is impossible to know what the facts were, or whether the other testimony taken had been actually seen by the plaintiff. The general rule is founded in the obvious public })olicy of suppressing perjury, and the fabrication of evidence, to meet the exigencies of the cause, after the full bearing and weight of the testimony are understood by all the parties. If, under such circumstiinces, the parties were permitted to supply the actual deficiencies of the evidence from time to time, as they should be found out, there would be strong temptations to corrupt and insidious practices to obtain new evidence; and there would be a premium held out for delays and omissions of diligence in taking the evidence, until the whole strengtli of the adversary's cause was disclosed. Courts of equity, from considerations of this sort, have always been disposed to up- hold the rule with a firm and rigid exactness. .Lord Eldon, in Whitelocke v. Baker, 13 Ves., 511, said: "This court will not enlarge publication, without a very special case made. The party's want of knowledge of the WOOD V. MANX. 259 rules of ])roceeilin^', an 1 Ves. & Beam., 153 : and it was recognized and acted upon by Mr. Chancellor Kent in Troup v. Sherwood, 3 John. Ch., 558, where he critically examined the leading authorities. But, what is most important in its bearing on the present case, is tlie absolute I'efusal of the court in these cases to allow the witness to be contradicted as to any fact which he had sworn, touching the merits of the matters in issue between the par- ties. " If (said Lord Eldon in Purcell v. McNamara), for in- stance, the fact is material to the merits of the case, and the witness has sworn to it, tliere is great danger of bringing other witnesses, under color of discrediting that witness, to prove or disprove such fact." See Gilb. For. Rom., 147 ; Smith v. Turner, 3 P. Will., 413. Another class of exceptions is where the application is made to enlarge the time for publication, or more frequently to en- large the time for taking the testimony after publication has been, in form, though not in fact, made, according to the rules of the court. To such a|)plications, whenever they will cau.se any dehiy in the cause, the court does not listen without some good cause shown upon affidavit ; such as surprise, acci- dent, or other circumstances which repel anv imputation of laches. See Gilb. For. Rom., 124 ;" 1 Harris. Ch. Pr. by New- land, ch. 43, pp. 285, 287 ; see, also, Watmore v. Dickinson, 2 Ves. & B., 267, 268 ; Cutler v. Cremer, 6 Madd., 254. And in all cases of this sort before the application is allowed, the party and iiis clerk in court, and solicitor are required to make oath "that they have neither seen, heard, read, nor been informed of any of the contents of the deposition taken in that cause; nor will they see, hear, read or be informed of the same till publication is dulv passed in the cause." Gilb. For. Rom., 146 ; see, also. Anon., 1 Vern., 253 ; llinde's Prac, 384, 385. And this affidavit is so important, that the court will never disi)ense with it except in a case of fraud practiced by the other party to evade the rule ; as was the case in a memorable instance in Lord Somers' time, stated by Ch. Baron Gilbert (Gilb. For. Rom., 146). Lord Eldon, in commenting on the affidavit, and the strict- ness of the rule requiring it, said : " That it is founded upon WOOD V. MANN. 2()1 this: that no more (Inngorous mode of proceeding can take jtlace than })erniitting parties to make ont evidence by piecemeal, and to make u[) the deficiency of original dejio.sitions by other evidence.'' Whitclocke v. Baker, 13 Ves. R., oil!. In the same case, where a motion was made, the effect of which was to introduce new evidence to be taken after the cause had been set down for a hearing, he added : " The ne.xt ground for this motion is the materiality of the farther evidence, which it is supposed can be given. If that could be represented as most highly material, I dare not trust myself with laying down a precedent that would authorize attempts to bring forward an application in every ca.se, where, even after a cause had been set down, the party might see that it would not be convenient to hear the cause upon the evidence on which he originally in- tended to put it. The danger from that would be enormous." Whitelocke v. Baker, 13 A"es. Iv., 512. The only material abatement of the force of this language, as applied to the present case, is that it was s])oken in a case not of newly dis- covered evidence, but of known evidence alleged to have been improperly and irregularly taken. Mr. Chancellor Kent, in Hamersly v. Lambert, 2 John. Ch. R., 432, reviewed the au- thorities, and sustained the doctrine, as above stated, witli all the weight of his own great opinion. Another class of exceptions is the proof of exhibits in the cause after publication, and even viva voce at the hearing, where there has l)een an omission of the pi'oof in due season, and they are applicable to the merits, (iilbert, in his l"\)rum Romanum, page 183, takes notice of this })racticc, and says: " Upon this rehearing any exhibit may be |)roved viva voce, as upon the original hearing. ]3ut no proof can be offered of any new matter without special leave of the court, which is seldom granted." The like doctrine is fully suj)ported in manv cases. See Wight v. Pilling, Free, ("h., 41)(j ; Dashwood V. Lord Bulkelev, 10 Ves. R., 238; Buckmaster r. llarroj), 13 Ves., 458 ; White r. Fussell, 1 Ves. & B., 153 ; lliagins v. Mills, 5 Russ. R., 287; Wyld r. Ward, Younge ct Jer., 384; \\'il- liams u Goodchild, 2 Russ. R., 91 ; Dale r. Roscbelt, (5 John. Ch. R., 25f). Another class of excei)tions is wht're depositions have been sujipressed, from the interi'ogatories being leading, or for ir- regularity, or where it has been discovered that a i)i-oper I'c- lea.se has not been given to make a witness competent ; in 262 KQUITY PLEADING. every such case, from the obvious necessity and in further- ance of justice, fresh interrogatories and a re-examination have been permitted. Lord Arundel v. Pitt, Ambl. R., 585 ; Perry V. Silve.ster, 1 Jacob R., 83; Curre i'. Bowyer, 3 Swanst. R., 357 ; Sandford v. Paul, 3 J3ro. Ch. R., 370 ] S. C, 1 Ves. Jr., 398 ; 2 Dick. R., 750 ; Spence v. Allen, Prec. Ch., 493 ; Shaw V. Lindsey, 15 Ves. R., 380 : Cox v. Allingham, 1 Jacob R., 337, 341, 343 ; Callow v. Mince, 2 Vern. R., 472. In the case of Sandford v. Paul, 2 Dick. R., 750 ; S. C, 3 Bro. Ch. R., 370 ; and 1 Ves. Jr. R., 398, it appeal's from J\Ir. Dickons' Reports that the suliject was a good deal examined, and many author- ities are cited by the reporter to show that the strictness of the rule had been relaxed in special cases of this nature. All these classes of exceptions stand upon peculiar grounds and steer wide from any of the just objections which have been urged against the introduction of new evidence, after the press- ure of the evidence, as taken, is fully known to both parties. The qualifications and limitations accompanying tliesc excep- tions demonstrate, in the most full and satisfactory manner, that the design of upholding the policy of the general rule constitutes the main ingredient in the view of the court in acceding to or refusing every application. If the existence of the evidence is fulh' known at the time of the taking of the depositions, and if it is not purely the case of written evidence, it will be difficult to find any uniform relaxation of the gen- eral rule, that, after publication passed, and the depositions have been seen, no new evidence shall be admitted. The question, then, is reduced to this : whether new evi- dence by witnesses, which has been discovered since publica- tion has passed, and the contents of the depositions been made known, can, consistently with the general objects and purposes of the rule, be allowed? Now, this is partly a matter of authority, and partly of principle. And I fully agree tliat if, upon a rehearing, or upon a bill of review, or upon a bill in the nature of a bill of review, the evidence of new witnesses ought to be let in, then it ought now to be allowed, to avoid circuity of remedy and increased expenses in litigation. If, on the other hand, it would not, under such circumstances, be allowed ; and if, in analogous cases, it has been rejected ; and if no direct authority can be shown in favor of the motion, then, since it must be a case of not infrequent occurrence in practice, each of these considerations will fui'nish strong objections against the motion. WOOD V. MANN. 2Co I have said that if", upon a rchcai-inn; or a bill of review, tlio plaintitt' would be entitled to the benetit of this te.stiiixiny, lie ought now to be entitled to it ; and, as it is applicable to points ah'eady in issue, there is no need of a suj)j)lementary bill. In this view of the subject T feel myself strongly fortified by the language of Lord Eldon in Milner v. Lord liai'ewood, 17 Ves. R., 148. " There is," said he, "no recollection of a sup[)lemental bill of this kind ; and if a new practice is to be settled, the strong inclination of my oj)ini()n is, that when the particular case arises, where either conversation or admission of the defendant becomes material after answer or replication ; or, as in this instance, after examination of witnesses in the original cause ; or if a new fact happens after publication, which it is material to have before the court in evidence, when the original cause is heard, it is much better, if the examina- tion of witnesses, if required, should be obtained uj)on a special application for the opportunity of examining, and that the depositions may be read at the hearing ; or if discovery is required, that tlie part}' should file a bill for that purpose merely ; and if relief is required, that the answer comprehend- ing the discover}' should be read at the hearing of the original cause." This language would certainly seem to show that there were cases in which new testimony might be taken after publication, at least as to facts and conversations occurring after the original cause is at issue, and publication passed. Here, how- ever, the application is to admit newly discovered evidence of confessions before the bill was filed. In W'illan v. Willan, 1^ Ves. R., 591 ; S. C. Cooper Eq. R., 291, the same great judge said: "It is perfectly established that after publication, pre- vious to a decree, and the depositions have been seen, you can- not examine witnesses farther without leave of the court, which is not obtained without great difiiculty; and the examination is generally confined to some particular facts. At the hearing of the cause the court sees all the evidence ; and if, instead of deciding upon inference, it directs inquiries, the decree direct- ing these inquiries is, in truth, the leave of the court given for farther exaniiiuition of witnesses upon the very j)oint." It is diflicult to ascertain the precise limitations which ought to be applied to language so general ; and whether the learned judge meant merely to advance the suggestion that the court might, to satisfy its own conscience, direct new evidence to be 2G4 EQUITY PLEADING. taken at or after the bearing ; or whether he meant to state, generally, that new testimony might be taken, upon a case made to the court, at any time after jtublication and before the hearing. Unfortunately, the case did not call for a more explicit declaration of opinion. But my impression is, that the former was all that was intended by the language. In Smith v. Turner, 3 P. Will. R., 413, the cause was heard, and there appearing to the court some reason to suspect that the defendant had a deed in his custod}^ it was oi'dered that he should be examined on interrogatories touching the deed. Upon the examination he denied his having the deed and all the circumstances relating thei'eto. The master certi- fied, notwitlistanding that he thought it reasonable, that the ])laintitl', who prayed a commission to examine witnesses to falsify the defendant's examination, should have one. But tlie court refused it, saying : "At this rate three or four causes might spring out of one, and though there could be no mis- chief in examining the part}' himself, yet the examining witnesses, after publication j)assed, especially where it may relate to the matter in issue, is against the rule of the court, and may be greatly inconvenient and make causes endless." This ca.se ceitainly affords a strong illustration of the real purport of the general rule, and would make one hesitate in supposing that Lord Ehlon meant, in the cases above stated, to maintain a broader doctrine. In Ward v. Kyles, Moseley R., 377, the court would not allow a party in a cross-bill to examine witnesses, after pul>li- cation {)assed and the depositions seen, to the matters in issue in the oiiginal cause. On that occasion, tlie lord chancellor said : " '^I'here is no rule in this court more sacred than that witnesses shall not be examined in another cause to matters in issue in a former." Yet. certainly, in a cross-bill, the i)arty would be entitled to more favor than u})on a mere appHcation in the original cause. In The Mayor of London v. Dorset, 1 Ch. Cas., 228, where a trial of an issue was directed at law, an application was made for a commission to examine a witness eight}' years old who was not discovered until that time and Avas unable to travel. If she was able to travel she would be examinable at the trial, though publication had pas.sed. The court granted the com- mission, aj)parently, as it would seem, upon the ground that otlierwisc^ the testimony would be lost; and yet the witness niiglit, if living, be examinal)le at the trial at law. WOOD V. MANN. 205 In Banks r. Faniiiliarson, Anibl. II., l-io ; S. C, 1 I)ick. K., 67, where a hearing wa."^ adjourned over and it was moved for liberty to examine a witness to jirove the handwriting of a witness to a deed, material in the cause, tlie motion was granted by Lord Ilardwicke. ISo, in Abrams v. Winshup, 1 Russ. K., 52(), where the evidence proved the execution of the will ; but the witnesses had not been examined as to tlie sanity of the testator ; the cause was adjourned at the hearing and liberty given to exhibit an interrogatory to prove liis sanity. In each of these cases the object was sj)ecial to establish the verity of a necessary document in the cause. In Blake v. Foster, 2 Ball & Beatt. R., 457, an application was made upon the hearing for libert}^ to adduce newly- discovered evidence, partly oral and })artly documentary. It was rejected, not upon any ground of the natui-e of the evi- dence, but because it was not in reality newly discovered. The case, therefore, decides nothing to our present purpose. In Clark v. Jennings, ] Anst. R., 173, 174, a motion was made after publication for leave to exhibit interrogatories to authenticate an old paper writing material in the cause, and for a commission to prove the same. The motion was opposed as being too late and that exhibits only can be proved after publication. The court of exchequer thought, that though not an exhibit, it was in the nature of one, and granted the rule, so as that it did not delaj' the hearing of the cause. It is proper to remark that the application was confined to a mere written document. In "Williamson v. Hutton, 9 Price R., 194, after a tithe cause had been set down for a re-hearing, a motion was made on behalf of the plaintiff for the examination of one or more witnesses, to prove certain accounts or rentals, and a terrier or memorandum, made by a former vicar, and to read the depo- sitions at the re-hearing, upon the ground of their having been discovered since the original hearing and were belbre unknown to the plaintiff. The court granted the motion, and it was added, " If these papers had been found at the hearing we should have ordered the cause to stand over for the ])ur- pose of giving the plaintiff an opi)ortunity of exhibiting an interrogatory." This, too, was the case of a written docu- ment. In Cox V. Allingham, Jacol) R., 337, permission was given at the hearing to exliibit an interrogatory as to the loss of a 26G EQUITY PLEADING. deed, omitted by mistake to be proved in the i)roper manner. Sir Thomas Plumer, in delivering lii.s opinion on tliis occa- sion, stated his strong impression of the dangers that would arise if in ever}- instance a jtarty, whose case broke down at the hearing, were at liberty to go into i'arther evidence. At the same time he admitted that it was too late to argue that there could be no case of exception to the general rule, after it had been departed from in some instances and by great avithorities. He also took notice of the circumstance that the evidence proposed to be given related oidy to the proof of a document. In Ord V. Noel, G Madd. 11., 127, an ap[)lication was made to file a supplemental bill, in the nature of a bill of review, on account of the discovery of some deeds and facts connected therewith since the decree. The vice-chancellor refused the petition; and the only remarks, material to our present pur- pose, wliich he made on that occasion, are: that if the ])laintiff had applied, after he had discovered the contents of these deeds, and before the cause was finally heard, to have the benefit of this discover}' at the hearing, the court would have found the means to render him that justice; and that the new matter for a bill of the nature proposed must be .such as, if unanswered, would clearly entitle the })laintitf to a decree, or would raise a question of so much nicety and difficulty as ta be a fit subject of judgment in a cause. Brigham v. Dawson, Jacob R., 243, was a similar application and shared a .similar fate. Coley V. Coley, 2 Younge & Jerv. R., 44, was an application, after publication passed, and tlie cause set down for a hearing,, for liberty to examine two further witnesses, one only having been examined, to prove the execution of a will in the plead- ings mentioned. The court granted it, saying that if, u})on the hearing of the cause, the plaintiff had been unable to- prove the execution of the will, the case would have been allowed to stand over for the purpose of su})plying that proofs U[)on payment of the costs of the clay. Then came Wyld v. Ward, 2 Younge & Jer. R., 881, where,, upon a re-hearing, a motion was made to exhibit an interroga- tory to prove certain facts, upon the ground that they were' newly discovered since the original hearing. Upon this occa- sion there was an elaborate argument by counsel. But the court granted the motion, saying that it had a discretion to WOOD V. MANN. 207 grant or refuse it, according; to the circumi^taiiccs of tlu- j)ar- ticular case. In Williams v. Goodchild, 2 lluss. ,R., 01, an application was made upon an appeal from a decree of the vice-chancellor to the lord chancellor, for })erniission to use, on the hearinnicnt, caeli of these objections has peals of Kentucky, at that time adorned by minds of uncommon ability, that the discovery of new witnesses to prove a matter of fact in issue in the original cause is not a j2:round for a bill of review. The reasoning of the court is so very full and clear on the j)oint, that I would gladly transfer it to this ojjinion, if it would not occupy too large a space. Upon that occasion the court said that, after the most careful search, they could not find one case reported in which a bill of review had been allowed on the discovery of new witnesses, to prove a fact which had Ix'Ibre been in issue; idthougli there were many, where bills of leview have been sustained on the discovery of records and other writings relat- ing to the title geueralhj \)\\i in issue. The same doctrine has been since repeatedly affirmed by the same court ; and partic- ularly in Bowles?'. South, Hardin R., 451, and Head v. Head, 3 jNIarsb. R., 121. It was also adopted and acted on by the court of appeals of ^'irginia in Randolph's Ex'rs v. Randolph's Ex'rs, 1 Hen. & Munf. R., 180. I am not able to .satisfy myself that this objection to the evi deuce is not well founded. On the conlraiy, the more 1 re- flect, the more I feel the difliculty of the admissibility of merely cumulative and corroborative testimony, though newly discovered, to the facts in issue. If I were to decide in favor of its admissibility, I should, as far as I know, l)e the first judge who ever acted upon so broad a doctrine. 1 am not bold enough to adventuie ujmn such a course. On the contrary, if I were called upon to frame a rule, it would be to exclude all testimony of newly-discovered witnesses to any facts in issue, unless connected with some newly-discovei'cd documents. There is no authority in favor of the petition. There is au- thority against it. No book of practice .'^tales anything which leads to the conclusion that evidence, like that now pro|)osed, has ever been admitted to the original hearing, or u])on a re- 272 EQUITY PLEADING. hearing, or upon any bill in the nature of a bill of review. So far as the books of practice speak, they lead in the opposite di- rection. My judgment, therefore, is, under all the circum- stances, that the motion ought not to be granted. CHAPTER IX. AMENDMENTS SUPPLEMENTAL AND REVIVAL 15II.LS. Itu'e 2S. The plaintiff shall be at libei'ty, as a matter of course, and without payment of costs, to amend his bill, in any matters whatsoever, before any copy has been taken out of the clerk's ofhce, and in any small matters afterwards, such as tiling blanks, correcting errors of dates, misnomer of ])arties, misde- scription of premises, clerical errors, and generally in matters of form. But if he amend in a matei'ial point (as he may do of course) after a copy has been so taken, before any answer or plea or demurrer to the bill, he shall |>ay to the defendant the costs occasioned thereby, and shall, without delay, furnish him a fair coj)y thereof, free of expense, with suitable refei'ences to the j)laces where the same are to be inserted. And if the amendments are numerous, he shall furnish, in like manner, to the defendant, a cop}' of the whole bill as amended ; and if there be more than one defendant, a copy shall be furnished to each defendant affected thereby. Bu'e 20. After an answer, or ])lea, or demurix'r is ])ut in, and before replication, the plaintiff may, upon motion or ])etition, with- out notice, obtain an order from any judge of the court lo amend his bill on or before the next succeeding rule-day. upon payment of costs or without payment of costs, as the coui-t or a judge thereof may in his disci-etion direct. But after re|il;- cation filed, the plaintiff shall not be permittetition l"or a rehearing. The case was elaborately argued at the circuit, counsel occu- pying several days in the presentation of their views. Their arguments were taken down by a short-hand writer, and printed, thus enabling me to read what 1 had patiently listened to in the oral discussion. The question Ijcfore the court was the validity of the re- issued patent to the complainant. The main ol)jection urged to its validity was that it was for a different invention from that described in the original patent. And upon that point the argument Avas full, elaborate and able. It is difhcult to see how the position of the complainant in supi)ort of the patent could have been more cogently pi'csented. The original patent was for a conn)ound of nitro-glycerine with an inexplosive porous absorbent, which Avould take up the nitro-glycerine, and render it safe for trans})ortation, stor- age and use without loss of its explosive jjowcr. The re-issued patent is for a com[)ound of niti'O-glycerine with any jiorous ab- sorbent, explosive or inex])]osive, which will be ((|uallysafe for trans|)ortation, storage and use without loss of cxplo.^ivt' pow'er. in other words, the i-e-issued })attnit (lro}»s the limita- tion of the original, and seeks to cover all compounds in which niti'o-glycei-ine is used in coiniection with a ])orous absorbent, in the production of blasting ])Owder, thus |)ractically securing to the patentee a mono])oly of niti-o-glycerine in the manuiac- ture of that powder. The court held that the re-i.KAI)IX.G. appeared ii[)Oii a comparison of the two patents, the I'c-issued patent differing from the original only in the extent of its claim: and that, therefore, the connnissioner exceeded liis jnrisdiction in granting a re-issne at all, as well as on the ground that the re-issued patent was for a different invention. This latter position was not, it is true, discussed in the oral argument, but it is raised by the ])leadings, and the attention of complainant's counsel at 8an Francisco was called to it, and a note of autljorities on the ])oint was received fVom him, em- bracing the greater part of those mentioned in the i)etition for rehearing. Whether the position be well taken or not cannot affect the decision of the case, if the re-issued patent cover a different invention from that described in the original patent. But the petition cannot now be considered by me at Wash- ington. It is not an e.c parte proceeding ; it can only be ))re- sented on notice, and can only be considered after the other side has had an opportunity to answer it. The ex parte pres- entation by counsel has evidently been made from a failure to distinguish between an ap[)lication fVir rehearing after the de- cision of an appellate tribunal, and an application for a re- hearing in a court of original jurisdiction after entry of a final decree. The distinction between aj)plications for rehearing in the two cases is pointed out by Chief Justice Taney in Brown V. Aspden, 14 How., 26: "By the established rules of chan- cery practice," said the chief justice, '' a rehearing, in the same sense in Avhich that terra is used in proceedings in equity, cannot be allowed after the decree is enrolled. If the party desires it, it must be applied for before the enrollment. l\ut no appeal will lie to the proper appellate tribunal until after it is enrolled, either actually or by construction of law ; and, consequently, the time for a rehearing must have gone by be- fore an appeal could be taken. In the house of lords in Eng- land, to which the appealTies from the court of chancery, a re- hearing is altogether unknown. A i-e-argument, indeed, may be ordered if the house desires it for its own satisfaction. But the chancery rules in relation to rehearings. in the technical sense of the word, are altogether inapj)licable to the proceed- ings on the appeal. " Undoubtedly this court may and would call for a re-argu- ment where doubts are entertained which it is supposed may be removed by further discussion at the bar. And this may be done after judgment is entered, piovided the order for re- GIANT I'OWDKR CO. V. CALl F( )1;N I A VKIOKIT r()\VI)i:K Co. 'JS5 argunieiit i.s entered at the .'^nine tei'ni. lUit tlie rule dt" tlio court i.s this: tliat no re-ai'guiiieiit will be henid in any case after judgment is entered, unle.'^.s some mcmhci- of tlie court who concurred in the judgment afterwards douhts the correct- ness of his ojnnion and desires a further argument on the sub- ject. And when that hapjiens, the court will, of its own ac- cord, apj)rise tlie coun.'^el of its wishes and designate the points on which it desires to bear them. " According to the practice in the supreme court, if the court does not, of its own motion, desire a reheai'ing of»a case (de- cided, counsel are at liberty to submit without argument a brief petition or suggestion of the points upon which a lehear- ing is desired. If, then, any judge who concurred in the deci- sion thinks proj)er to move for a rehearing, the motion is con- sidered bv the court; otherwise the petition is denied of coui\se." Public Schools r. Wallace, 9 Wall., (')04. A similar coui'se of procedure would be apj)ropriiite in any appellate tribunal. To allow an argument upon such a ])eti- tion would lead in a majority of cases to a mere repetition, with more or less fullness, of the points pi-esented on the orig- inal hearing, and cause infinite delays to the prejudice of other suitors before the court. There is another observation to be made U])on rehearings in equity after a final decree in courts of original jui-isdiction. The practice in this country and that which formerly prevailed in England are essentially different. According to the prac- tice in the English courts, a rehearing ])revious to tlu' eni'oll- ment of the decree, when the petition was approved by the certificate of two counsel, was gi-anted almost as a matter of course. Repeated rehearings in the same cause were not un- common, and the consequent delays and expense from this practice were so great as to lead to the interposition of ]);irlia- ment for its correction. The subject is mentioned Ijy Chief Ju.stice Taney in his oj)inion in the case of Howard. There, when a case was decided, memoianda for the decree were en- tered in the minutes of the court ; in some instances the final decree was thus entered ; but the decree was not considered as strictly a record until it was engros.sed, signed and entered at length in the rolls of the court. IJetween the time of the decision and the entry of the memoranda of the decree, and the time the decree took a definitive shape by enrollment, it was open to modification and correction, and even to entire 28t) EQUITY PLEADING. change. But when once enrolled the decree was not subject to change excei)t in the house of lords, or by a bill of review. 2 Daniell's Chancery Practice, 1018. In this country there is not, except, perhaps, in one or two states where the old forms of equity practice are retained, any such proceeding as the formal enrollment of decrees. Here, when a case in equity is decided, a decree is drawn up and signed b}' the judge, and entered on the records of the court, with about the same formality as a judgment in a case at law. And rehearings are then granted, excej)t when the judge acts of his own motion, only upon such grounds as would author- ize a new trial in an action in law ; that is, for newly-discov- ered evidence or errors of law apparent upon the record. A.11 the limitations which control courts in actions at law, in con- sidering allegations of newly-discovered evidence and of errors at law, apply to applications for rehearing in such cases. Bentley v. Phelps, 3 Woodb. & M., 403. See, also, Dogget v. Emerson, 1 Woodb. & M., 1 ; Emerson v. Daniels, id., 21 ; Tufts V. Tufts, 3 Woodb. & M., 420 ; and also Clapp v. Thax- ter, 7 Gray, 380. The course of procedure for the complainant, therefore, is to file its petition with the clerk of the circuit court at San Fran- cisco, and obtain from the court or circuit judge an order upon tlie defendants to show cause on the following rule day, or some other day mentioned, why its prayer should not be granted. The defendants can then answer the petition, and upon the petition and answer the application can be heard. A rehearing should not be granted for newly-discovered evi- dence where the evidence could have been obtained by reason- able diligence on the first hearing, nor when it is merely cumulative to that previously received, nor when, if presented, it would not have changed the result. And as to errors of law, they should be such as are clearly shown by considera- tions not previously presented. A new hearing should not be had simply to allow a rehash of old arguments. The proper remedy for errors of the court on points argued in the first hearing is to be sought by a])peal, when the decree is one whicli can be reviewed by an appellate tribunal. See Tufts v. Tufts, supra. The petition, therefore, cannot be heard by me ex parte at AVashington. The complainant must pursue the regular course of procedure, and give notice to the opposite party. If GIANT roWDKR CO. V. TA 1,1 1'( >1{N 1 A NKioUII' !'( »\Vl)i:i; I'O. I'S? the |>c'titi()n \)c filrd duiiiiii,' tlir (niii, the t'nurt will retain jurisdiction over the case, and may suhseiiuently decide u]ton the application. The eiglity-eighth rule in equity a])i)liesonly where no petition is presented during the tern). As the circuit court in San Franci.'^co will he held h}' the circuit judge in my absence, he will direct its clerk to forward the petition and answer to me at Washington, accompanied with sucli briefs as counsel may lile within a reasonable time to be allowed by the court. The application will then be taken up and disposed of, and my judgment sent to the circuit court and there entered. Where cases have been heai'd by the circuit judge sitting alone, I do not myself hear applica- tions in them for a rehearing, or motions for a new trial, ex- cept by his request. This consideration to the different judges composing the court is essential to the harmonious adminis- tration of justice therein. As observed by me in a case re- ported in 1 Sawyer: "The circuit judge possesses equal authority with myself on the circuit, and it would lead to unseemly confiicts if the rulings of one judge, u])on a question of law, should be disregarded or l)e open to revicnv by the other judge in the same case." The petition contains what purports to be a co})y of my opinion but it is a copy of the opinion before it was revised. The opinion should not have been published until it had re- ceived my revision, as counsel very well know. In any peti- tion hereafter filed it is expected that a correct cojiy will ap- pear, if any one is given. If the present petition is used the opinion must be corrected in accordance with the revised copy. Before concluding it may not be amiss to invite the atten- tion of complainant's counsel to the language of Judge Stor}^, in the case of Jenkins v. Eldredge, with resj)ect to the earnest- ness with with which counsel, in apjilying for rehearings, sometimes assevei'ate their convictions of the errors of the court ; and to re})eat what is there said, "■ that if any judge should be so unstable in his views or so feeble in his judgment as to yield to them, he would not only surrender his independence but betray his duty. However humble may be his own tal- ents, he is compelled to treat every oj)inion of counsel, how- ever exalted, which is not founded in the law and the facts of the case, to be voiceless and valueless." 3 Story, 803. Noth- ing can be gained by strong language expressed by counsel in 288 EQUITY PLEADING. presenting the petition as to the su[)posed errors of tlie court, nor by the statement as to what may have been said of the decision by other counsel, who have neither examined, studied nor understood the case. CHAPTER X. PREPARATION FOR IIEARIN(i SUBMISSION OF CAUSE DECREE. llnle S(i. In drawiiio- up decrees and orders, neither tlie bill, nor an- swer, nor other pleadings, nor any part thereof, nor the report of any master, nor any other prior proceeding, shall be recited or stated in the decree or order ; but the decree and order shall begin, in substance, as follows : " This cause came on to be heard (or to be further heard, as the case may be) at this term, and was argued by counsel ; and thereupon, upon con- sideration thereof, it was ordered, adjudged and decreed as follows, viz.: " [Here insert the decree or order.] liufe i)2. Ordered, That in suits in equity for the foreclosure of mort- gages in the circuit courts of the United States, or in any court of the Territories having jurisdiction of the same, a de- cree may be rendered for any balance that may be found due to the coinplainant over and above the j)roceeds of the sale or sales, and execution may issue for the collection of the same, as is provided in the eighth rule of this court regulating the equity practice, where the decree is solely for the payment of money. Biile 75. Every decree for an account of the personal estate of a tes- tator or intestate shall contain a direction to the master to whom it is referred to take the same to in(|uiro and state to the court what parts, if any, of such })ersonal estate are out- standing or undisposed of, unless the court shall otherwise direct. 19 ( 289 ) 200 EQUITY PLEADING. Rule 85. Clerical mistakes in decrees or decretal orders, or errors aris- ing from any accidental slip or omission, may, at any time before an actual enrollment thereof, be corrected by order of the court or a judge thereof, upon petition, without the form •or expense of a rehearing. FOKGAY V. CONRAD. (6 Howard, 201-206. 1847.) Opinion by Taney, C. J. Statement of Facts. — A motion has been made to dismiss this appeal on the ground that the decree in the circuit court is not a final decree within the meaning of the acts of congress of 1789 and 1803. The bill was filed by the appellee, as the assignee in bank- ruptcy of a certain Thomas Banks, in the circuit court of the United States for the district of Louisiana, against the appel- lants, and Banks, the bankrupt, and three other defendants. The object of the bill was to set aside sundry deeds made by Banks for lands and slaves, which the complainant charged to be fraudulent, and for an account of the rents and profits of the property so conveyed ; and also for an account of sundry sums of money which he alleged had been received by one or more of the defendants, as specifically charged in the bill, which belonged to the bankrupt's estate at the time of his bankruptcy. The case was proceeded in until it came on for hearing, when the court passed a decree declaring sundry deeds therein mentioned to be fraudulent and void, and directing the lands and slaves therein mentioned to be de- livered up to the complainant, and also directing one of the defendants named in the decree to pay him $11,000, received from tlie bankrupt in fraud of his creditors, and " that the complainant do have execution for the several matters afore- said in conformity with law and the practice prescribed by the rules of the supreme court of the United States." The decree then directs that the master take an account of the profits of the lands and slaves ordered to be delivered up, from the time of the filing the bill until the property was delivered, or to the date of the master's report, and also an account of the money and notes received by one of the defendants (who FORGAY V. CONRAD. 291 has not apj)calcd) in fVaiul of (lie creditors of the haiikriij)t, and concludes in the followintv words: "And so much of the said bill as contains or relates to matters hereby I'eferrcd to the master for a report is retained Ibi- lurther decree in the premises ; and so much of the said bill as is not now nor has been heretofore adjudged and decreed upon, and which is not above retained for the })Ui"{)Oses aforesaid, be dismissed without prejudice, and that the said defenchmts do pay the costs." Among the deeds set aside as fraudulent is one from the bankrui)t to Ann Fogarty, otherwise called Ann Wells, for two lots in the city of New Orleans, and sunth'y slaves, which she afterwards conveyed to Forgay, the other appellant. IJotli of these deeds are dechired null and void, and the lots, with the improvements thereon, and the negroes, directed to be delivered to the complainant for the benefit of the bankrupt's creditors. This ])art of the decree is one of the matters of which the complainant was to have execution. But the ac- count of the rents and profits 6f this property i.s, like other similar accounts, referred to the master and reserved for fur- ther decree. The appeal is taken by Samuel L. Forgay and Ann Fo- garty, otherwise called Ann Wells; and they alone are inter- ested in that portion of the decree last above mentioned. The bankrupt and the three other defendants have not ap- pealed. These three defendants claimed other property, whi(di had been conveyed to them at different times, and by sei)arate conveyances, as mentioned in the proceedings. And it was not, therefore, necessarv, that thev should join in this a})peal. Todd V. Daniel, IG Pet";, 523. The question upon the motion to dismiss is whether this is a final decree within the meaning of the acts of congress. Undoubtedly it is not final in the strict, technical sense of that term. But this court has not heretofore understood the words "final deci'ee " in this strict and technical sense, but has given to them a more liberal, and, as w'e think, a more reasonable construction, and one more consonant to the inten- tion of the legislature. In the case of Whiting u The Bank of the United States, 13 Pet., 15, it was held that a decree of foreclosure and sale of mortgaged premises was a final decree, and the defendant entitled to his appeal without waiting for the return and confirmation of the sale by a decretal order. And this decision is placed by the court u{)on the ground that 292 EQUITY PLEADING. the decree of foreclosure and sale was final upon the merits, and the ulterior proceedings but a mode of executing the original decree. Tlie same rule of construction was acted on in the case of Michoud and others v. Girod and others, 4 How., 503. The case before us is a stronger one for an appeal than the case last mentioned. For here the decree not only decides the title to the property in dispute, and annuls the deeds under which the defendants claim, but also directs the property in dispute to be delivered to the complainant and awards execu- tion. And according to the last paragraph in the decree, the bill is retained merely for the purpose of adjusting the accounts referred to the master. In all other respects, the whole of the matters brought into controversy by the bill are finally disposed of as to all of the defendants, and the bill as to tliem is no longer pending before the court, and the decree which it passed could not liave been afterwards reconsidered or modified in relation to the matters decided, except upon a petition for a rehearing, within the time prescribed b}'- the rules of this court regulating proceedings in equity in the cir- cuit courts. If these appellants, therefore, must wait until the accounts are reported by the master and confirmed by the court, they will be subjected to irreparable injury. For the lands and slaves which they claim will be taken out of their posse.ssion and sold, and the proceeds distributed among the creditors of the bankrupt, before they can have an opportunity of being heard in this court in defense of their rights. We think, upon sound principles of construction, as well as upon the authority of the cases referred to, that such is not the meaning of the acts of congress. And when the decree decides the right to the property in contest, and directs it to be deliv- ered up by the defendant to the complainant, or directs it to be sold, or directs the defendant to pay a certain sum of money to the complainant, and the com|»lainant is entitled to have such decree carried immediately into execution, the decree must be regarded as a final one to that extent, and authorizes an appeal to this court, although so much of the bill is retained in the circuit court as is necessary for the pur- pose of adjusting by a furtlier decree the accounts between the parties pursuant to the decree passed. This rule, of course, does not extend to cases where money is directed to be paid into court, or property to be delivered to a receiver, or property held in trust to be delivered to a new FOKCiAY V. CONKAI). li'.l.'5 trustee appointed by tho court, or to cases of a like description. Orders of that kind are lre(|uently and necessarily made in the progress of a cause. Ikit they are interlocutory only, and in- tended to preserve the subject matter in dispute from waste or dila})idation, and to keep it within the control of (he court until the rights of the parties concerned can be adjudicated by a final decree. The case before us, however, comes within the rule above stated, and the motion to dismiss is therefore over- ruled. We, however, feel it our duty to say that we cannot approve of the manner in which this case has l)een dis{)osed of by the decree. In limiting the right of ajipcnil to final decrees, it was obviously the object of the law to save the unnecesary expense and delay of repeated appeals in the same suit, and to have the whole case and every matter in controversy in it de- cided in a single appeal. In this respect the practice of the United States chancery courts diilers from the English prac- tice. For appeals to the house of lords may be taken from an interlocutor}' order of the chancellor, which decides a right of property in dispute; and therefore there is no irre[)arable injury to the party by ordering his deed to be canceled, or the property he holds to be delivered up, because he may imme- diately appeal; and the execution of the order is suspended until the decision of the appellate court. But the case is otherwise in the courts of the United States, where the right to ai)peal is b}^ law limited to final decrees. And if, by an interlocutory order or decree, he is required to deliver up prop- erty which he claims, or to pay money which he denies to be due, and the order immediately carried into execution by the circuit court, his right of ap})eal is of very little value to him, and he may be ruined before he is permitted to avail himself of the right. It is exceedingly important, therefore, that the circuit courts of the United States, in framing their interlocu- tory orders, and in carrying them into execution, should kce|'. in view the difference l)etween the right of a[)})eal as ])racticfd in the English chancery jurisdiction, and as restricted by the act of congress, and abstain from changing unnecessarily the possession of property or compelling the payment of money by an interlocutoiy order. ('a.ses, no doubt, sometimes arise wlici'c the jxii'jxiscs of jus- tice require that the property in controversy should be placed in the hands of a receiver, or a trustee be changed, or money be paid into court. But orders of this description stand upon 294 EQUITY PLEADING. very different princif)les from the interlocutory orders of which we are speaking. In the case before us, ifbr example, it would certainly have been proper, and entirely consistent with chancery practice, for the circuit court to have an- nounced, in an interlocutory order or decree, the opinion it had formed as to the rights of the parties, and the decree it would finally pronounce upon the titles and conveyances in contest. But there could be no necessity for passing immediately a final decree, annulling the conveyances, and ordering the property to be delivered to the assignee of the bankrupt. The decree upon these matters might and ought to have awaited the master's report ; and when the accounts were before the court, then every matter in dispute might have been adjudi- cated in one final decree ; and if either party thought himself aggiieved, the whole matter would be brought here, and decided in one appeal, and the object and policy of the acts of congi'ess upon this subject carried into effect. These remarks are not made for the purpose of censuring the learned judge by whom this decree was pronounced, but in order to call the attention of the circuit courts to an inconvenient practice into which some of them have sometimes fallen, and which is regarded by this court as altogether inconsistent with the object and policy of the acts of congress in relation to appeals, and at the same time needlessly burdensome and expensive to the parties concerned, and calculated, by successive appeals, to produce great and unreasonable delays in suits in chancer}'. For it may well hap|)en that, when the accounts are taken and reported by the master, this case may again come here upon exceptions to his report, allowed or disallowed by the circuit court, and thus two appeals made necessary, when the matters in dispute could more conveniently and speedily, and with less expense, have been decided in one. EAILKOAD COMPANY v. SWASEY. (23 Wallace, 405-411. 1874.) Appeal from U. S. Circuit Court, Eastern District of North Carolina. Statement of Facts. — The decree in this case was to the effect that certain shares of stock in the North Carolina Rail- road Company belonging to the state of North Carolina, were pledged as security for certain certificates of debt, and that the RAILROAD COMPANY V. SWASKY. '^lo plaintiff and those he represented were cntitlod to have the stock sold to pay past-due cou])oiis. It also ordered that the commissioner take an account as to interest due and to be- come due, the proportion of stock ap])lied to the payment of interest, and that unless the state shall have made |)i'ovision for the payment of such interest by a certain day, the stock be sold. Opinion by Waitk, C. J. An appeal may be taken from a decree of foreclosure and sale when the rights of the parties have all been settled and nothing remains to be done by the court but to make the sale and pay out the proceeds. This has long been settled. Ray v. Law, 3 Cranch, 179 ; Whiting v. Bank of the United States, 13 Pet., 15. The sale in such a case is the execution of the de- cree. By means of it the rights of the parties are settled and enforced. But to justify such a sale without consent, the amount due upon the debt must be determined and the prop- erty to be sold ascertained and defined. Until this is done the rights of the parties are not all settled. Final process for the collection of money cannot issue until the amount to be paid or collected by the process, if not paid, has been adjudged. So, too, process for the sale of specific property cannot issue until the property to be sold has been judicially identified. Such adjudications require the action of the court. A refer- ence to a master to ascertain and report the facts is not suffi- cient. A master's report settles no rights. Its office is to pre- sent the case to the court in such a manner that intelligent action may be there had, and it is this action by the court, not the report, that finally determines the rights of the parties. With these well-settled principles as our guide, it is easy to see that the decree here appealed from is not final. The amount of the debt wliicli the state must pa}^ in order to stop the sale has not been determined, neitlier has it been deter- mined what amount of stock may be sold if the debt is not paid. In each of these questions the state has a direct inter- est, and through its representatives in court has the I'ight to be heard. They must be settled before the litigation can be said to be at an end. Tiie amount of the debt and the pro- portion of stock applicable to its payment are, therefore, still open for future adjudication between the parties. Thus far the court has done no more than declare that for the security of the payment of so much as is due, the plaintilf and those 296 EQUITY PLEADING. he represents have a lieu upon their eciuitable proportion of the stock, and that the lien may be enforced by sale, if pay- ment of the debt is not made. It has also declared its de- termination to order a sale, if payment of the debt is not made or satisfactorily provided for by April 1, 1875. In order that proper action may be had when this time arrives, the master has been directed to state the account of the indebtedness to the i)laintitf and those he represents, and of their proportion of securities pledged by the state. In this, as it seems to us, the court has acted upon the sugges- tion in Forgay v. Conrad, and by an interlocutory order an- nounced the opinion it had formed as to the rights of the parties and the principles of the decree it would finally ren- der, leaving the entry of the final decree in form to be made when the amount due has been ascertained and an apportion- ment of the stock made. In this way the rights of all i)arties can be protected and no injustice done. In this connection it may not be improper to call the atten- tion of the circuit courts to wliat was said by Chief Justice Taney in Forgay v. Conrad, as to tlie care which ought to be exercised in the preparation of decrees of this character. Much time of this court and expense of litigants will be saved if more attention is given to the form of decrees when entered. CHAPTEK XI. PRELIMINARY INJUNCTIONS AND RESTRAINING ORDERS. liule r>5. Whenever an injunction is asked for by the bill to stay pi'o- -ceedings at law, if the defendant do not enter his ai)pearanoe and plead, demur, or answer to the same within the time pre- scribed therefor by these rules, the plaintiff shall be entitled as of course, upon motion, without notice, to such injunction. But special injunctions shall be grantable only u})on due notice to the other party by the court in term, or by a judge thereof in vacation, after a hearing, which may be ex parte, if the adverse party does not appear at the time and i»lace ordered. In every case where an injunction — either the com- mon injunction or a special injunction — is awarded in vaca- tion, it shall, unless previously dissolved by the judge granting the same, continue until the next term of the court, or until it is dissolved by some other order of tlie court. p:wing v. blight. (Circuit Court for Pennsylvania : 3 AVallace. Jr., 139, 140. 188o. ) Statement of Facts. — During the pendency of a ])lea to the jurisdiction an application was made for an injunction and a receiver. Opinion by (Jkikr, .J. I'he ])endency of a plea to the jurisdiction of the court necessarily precludes all further action of the court till it is decided. This rule of practice is founded on reason as well as fortified by authority. i:i Yes., 104. While the jurisdiction oi' the court or the ecjuily of the bill is in doubt by the i)en(lency of a plea or denuirrer, it would be highly improper for the court to interfere by the exercise of such high powers over men's property. ( 297 ) 298 EQUITY PLKADING. The court have it nlways in their power to guard against the abuse of dilatory pleas. If irremediable mischief should impend, which it is absolutely necessary to meet with prompt- ness, or if there be any just suspicion that the plea or demur- rer is merely intended for delay, the court will order an immediate hearing or trial of the plea. If an issue be desired to try the plea of jurisdiction in this case it will be ordered, or any other rule which com{)lainant may desire, for the purpose of expediting the final hearing in case the jurisdiction should be found to exist. McCAULEY r. KELLOG(i. (Circuit Court for Louisiana: 2 Woods, lo-23, 1873.) Statement of Facts. — IJill in equity heard on motion for preliminary injunction. The bill states that the complainant is the holderof a num- ber of bonds of the state of Louisiana. The prayer of the bill is that the defendants, w'ho are the governor and other state officers, be restrained from obeying the so-called funding bill, an act passed and approved January 24, 1874, the effect of which, it is alleged, would be to repudiate the contracts made by the state with complainant and other creditors, and that they be decreed to specifically perform the contracts made by the state with the complainant. Further facts appear in the opinion of the court. Opinion by Woods, J. It is obvious to remark that there are insuperable obections to so much of the prayer for relief as asks that the defendants may be decreed to comply with and specifically perform the contracts of the state by estimating and collecting the interest and .sinking fund tax, and api)lying it to the payment of the principal and interest of the bonds. The objection is that if there is a remedy at all it is a remedy at law, namely, by the issuance of the writ of mandamus. If this suit were brought against a municipal corporation and its officers to compel the collection of a tax to pay the interest on its bonds, the plain, adecjuate and complete remedy would be the legal writ of mandamus. It is true that before the writ could issue the bondholders must have recovered a judgment at law on their bonds. Bath County v. Amy, 13 Wall., 247 ; Graham v. Nor- ton, 15 id., 427. MCCAULEY V. KELLOGG. 299 It may be replied to this that the bondholders cannot lay the necessary foundatit)n for the writ of viandaDinti in the United States courts, because tiiey are 'prohibited from suinj]^ the state by the eleventh amendment to the constitution of the United States. But this fact may prove that there is no remedy for the complainants in the United States courts. It certaiidy does not follow that because there are obstacles to the adoi)tion of the plain legal remedy therefore the remedy is in equity. It might as well be claimed th^t becau.se the bondholder could not go into a coui't of law and secure a judgment against the state upon his bonds he might therefore go into equity and seek a decree against the othcers of the state for the amount due on his bonds. When the eleventh amendment to the constitution declares " that the judicial power of the United States shall not be construed to extend to any suit at law or in ecjuity com- menced or prosecuted against one of the United States by citizens of another state, or subjects of any foreign state," the purpose is clear to exempt states from suits upon their con- tracts, either at law or in equity ; and the fact that this amendment interposes an obstacle to a suit at law against a state does not give a court of equity jurisdiction to enforce the same contract on the pretext that there is no remedy at law. Suits in both forums against a state are prohibited. It is evident, therefore, that should this bill come on for final hearing the decree prayed for could not be granted. We may, however, consider the bill as one for injunction only, and the (question now presented is. Can and ought the court to allow the injunction to go as prayed for? It is claimed by the bill and conceded by counsel for de- fendants that the bonds of the state of Louisiana held by the complainants are contracts, that the laws under which these bonds were issued, and which provide for the levy and collection of taxes to pay the interest and reduce the ])rincipal, and which declared that the same should be annually con- tinued until the principal and interest of said bonds were fully paid, — that these provisions of law entered into and formed a part of the contract between the .state and the bondholder just as completely as if the terms themselves were inserted in the body of the bonds. The state has, therefore, contracted that, at a certain date named in the bonds, she will pay the principal ; that in the meantime she will pay the interest semi- 300 EQUITY PLEADING. annually to the holder of the bonds, and, as an assurance that this part of her contract will be performed, she promises fur- ther that she will levy and collect an annual tax to make these payments, and that the revenue raised by this tax shall be set apart for the purpose of paying said interest and principal. It is conceded that the state has made this contract with the complainant in this case. Now, to what end is the injunc- tion sought in this case? Is it to compel the officers of the state to execute the contracts of the state by estimating, levy- ing, collecting and applying to the payment of the bonds the tax originally provided by law for the payment of the interest and the redemption of the principal ? It is true the prayer for injunction is that the officers of the state may be restrained from hindering or delaying the estimate, levy and collection of that tax, etc. But as the defendants are the officers whose duty it is to estimate, levy and collect, it is clear that such an injunction from this court would be mandatory and compel the performance of the affirmative acts. The first question presented by the prayer for injunction is : Can the officers of the state be compelled by an injunction to do an affirmative act? The complainant claims that the fund- ing bill and the act of March 14, 1874, which in effect prohibit the collection of taxes for the payment of the principal and interest of the outstanding bonds of the state, are unconstitu- tional, and therefore void. If this be conceded, then the case is in the same plight as if the acts just named had never been passed, and us if the officers of the state, without pretense of warrant of law, were refusing to levy and collect the taxes whicli the state had agreed should be levied and collected and applied to the payment of these bonds. Has this court the power to compel them by mandatory injunction to do an affirmative act? The authorities are adverse. The case of Walkley v. City of Muscatine, Wall., 483, was a bill in equity to compel the au- thorities of the city of Muscatine to levy a tax upon the prop- erty of the inhabitants for the purpose of paying the interest on certain bonds issued by the city. It appeared that a judg- ment had been recovered in the same court against the city for $7,666, interest due on the bonds held by plaintiff; that exe- cution had been issued and returned unsatisfied, no property being found liable to execution ; that the mayor and aldermen had been requested to levy a tax to pay the judgment, but had MCCAULKY V. Ki:i.L()(iG. 301 refused ; that tln' c-ity autluiritics jxisscssed the [)()\vcr uikIit their charter to levy a tax t)l' one pci- cent, on the valuation of" the city property, and had made a levy, annually, hut had aj)- propriated the proceeds to other purposes, and liad wholly ne- glected to j)ay the interest upon the bonds. The hill prayed that the mayor and aldermen might be decreed to levy the tax and appropriate so much of the [)roceeds as might he suilicient to pay the judgment, interest and costs. Upon this case the supreme court says : " We are of opinion that com])lainant has mistaken the ap])ropi-iate remedy in the case, which was l)v writ of vicuKhtimis from the circuit court." We have been furnished with no authority for the substitu- tion of a bill in equity and injunction for the writ of riKin- damus. An injunction is genei'ally a preventive writ, not an affirmative remedy. It is sometimes used in the latter char- actei', but this is in cases when it is used by the court to carry into effect its own decrees, as in putting the purchaser under a decree of foreclosure of a mortgage into possession of the prem- ises. Even the exercise of this power was doubted till the case of Kershaw v. Thompson, 4 Johns. Ch., ()09, in which the learned chancellor, after an examination of the cases in Eng- land on the subject, came to the conclusion he possessed it, not, however, by the writ of injunction, but by the writ of assistance. In Rogers Locomotive Works v. Erie liailway Co., 20 N. J. Eq., 379, the court after a learned review of all the cases, both English and American, bearing upon the subject, announced the conclusion that a mandatory injunction will not be ordered upon a preliminary or interlocutory motion, but only upon final hearing, and then only to execute the decree or judgment of the court. It is only in cases of obstruction to easements or rights of like nature, that maintaining a structure as a means of preventing their enjoyment will be restrained, and the structure ordei'cd to be removed as part of the means of restraining the defendant from interrupting the enjoyment of the right. To the same effect is the case of Audenreid /'. Railroad Co., 08 Penn. St., 370. It is clear to my mind that the injunction asked for falls within the category of mandatory injunctions and cannot, therefore, be granted on motion. But the fatal objection to the motion of c()m])lainant is found in the character of his l>ill. It is eitlu^r a suit in effect 302 EQUITY PLEADING. against the state of Louisiana, or, if not, the parties defendant are mere nominal })arties, having no real interest in the con- troversy. In either case no decree can be made in the cause. This case is clearl}' distinguishable from the cases of Osborn v. The Bank of The United States, 9 Wheat., 738, and Davis v. Gray, 16 Wall., 203, and other cases cited by complainant. In the case of Osborn v. The Bank, the bill was filed by the bank to restrain Osborn, who was auditor of the state of Ohio, from acting under a void law of a state in the collection of a tax levied upon the bank, and for a decree against Curry, the late treasurer, and Sullivan, the incumbent treasurer, and Osborn, the auditor, for money illegally collected by them from the bank. It was alleged in the bill that neither Curry nor Sullivan held the money as officers, but individuals. The court in this case held that the suit was well brouglit, because the state was not nominally a party to the i-ecord, and the parties made de- fendant had a real interest in the cause, since their personal responsibility was acknowledged, and, if denied, could be demonstrated. In the case of Davis v. Gray, Davis, who was defendant in the court below, and who was named upon the record as gov- ernor of Texas, was sought to be enjoined from casting a cloud upon the title of complainant to certain lands in Texas by locating warrants thereon in pursuance of a void and uncon- stitutional enactment of the state. Although he profes.sed to act as governor, he was impairing the rights of complainant without the authority of any valid law; he was acting in his own wrong and upon his own responsibility, and was person- ally liable. In both these cases the object was to restrain individuals holding public offices from doing acts to the injury of com- plainant, for which there was no legal warrant, and by the doing of which they incurred a personal liability. How dif- ferent is the case under consideration. Here is an attempt to compel the public officers of a state to do positive and affirma- tive acts as such, to compel them to carry out what the com- plainant conceives to be the law of the state, not in accordance with their own sense of duty and their own interpretation of the law. In the case of Kentucky v. Dennison, Governor, 24 How., 109, it was held that neither the congress nor the courts of the United States could coerce a state officer, as such, to MCCAULKY V. KKLI.OGG. 803 perform any duty iiiiposc'd upon liini by act of congress. Does it not Ibllow, a fortiori, that a couit of the United States can- not compel the governor of a state to pxecute a hnv j)assed hv the state? In Osborn v. The Bank, and Davis v. (iray, it was hehl that £i United States circuit court might, in a proper case of e(juity, «njoin a state officer from executing a state law in conflict with the constitution or a statute of the United States, when such execution would violate the rights of complainanl. JUit no case has yet decided that a circuit court of the United States can compel the executive and ad.ninistrative officers of a state to execute the laws of the state. The dilemma is this : If the suit is against the defendants in their official character, and the claims made uj)on them are in their oflicial character, the state may be considered a party to the recoi'd. Madrazo v. Governor of Georgia, 1 Pet., 110. If the suit is against the officers as individuals merely, and the offices the}' hold are given merely to describe their persons, they have no interest in the subject-matter, and no decree should go against them. In the view I have taken of the case, I have conceded what complainants claim, that the funding bill and the act of March 14, 1S74, are both unconstitutional and void, and have re- garded the bill just as if those acts had never been passe(';ii';mcc, l»y < ). llawkins, their solicitor, oii [\\c 1 Itli day of .Inly. lS4(i. On tlic :!lsl of" August foUowinii,-, tlusclclciulant, Hill, lik-d his se}»ai'ate an- swer to the hill of complaint, and on the 2Uth of Octoher, 1840, his second separate answer. 'IduMitlier defendants nevci- have answered. 4'hese several acts nj)()n the part of the def(;ndant Hill, and the api)earance ol the other dcf(Midants, supply the want of proof of the reasonahle notice required hy the statute for the protection of the I'ights of defendants. But the defendant Hill, in order to sustain this motion, fur- ther relies upon tlie ec[uities exhibited in his answer, which chiefly sets forth an assignment to him, by Henry D. Bennett, on the lOtli day of January, 184<), of all the goods, chattels, book accounts, claims and demands, and personal estate of every kind, of the late firm of Bennett & Ford, then (by the previous dissolution of the said firm) the property of the said Bennett, for the purpose expressed in the transfer to him, and including therein a note of the defendant, George W. Gilbert, for |o,125, with interest from the 15th of January, 1840. This assignment to Hill is on certain conditions, and for cer- tain uses and purposes, and upon certain tru.sts theivin expressed. The assignor first provides for the payment of certain do- mestic creditors, in the order in which they are named in the first class absolutely, and to the whole amount of their respec- tive claims. And after the full payment of these creditors, provision is then made for the pro rata distribution, among the foreign creditors of the firm of B. & F , from the residue of the fund assigned ; providing, and expressly declaring that the assignee or trustee "shall first apjoropriate all the proceeds of the trust to the payment, in the order previously prescribed and set forth, of all the creditors therein jjrovided for, who shall not, at the time of making any payment or dividend, have made by themselves or attorneys, any costs or expenses upon their claims ; and that the claim or claims of any cred- itor or creditors of the said firm who shall, at the time of mak- ing any payment or dividend, have made or occasioned any cost or expense upon their claims, by any resort to any pro- ceeding having a tendency to interfere in any manner with or prevent or obstruct the easy and economical execution of the trust, shall be postponed, and no })avment whatever thereafter be made thereupon, until all the other creditors shall have. 20 •306 EQUITY TLEADING. 'been paid in full ; after which the remaining proceeds shall be first applied towards the payment, jrro rata, of all such claims upon which costs have been made, in proportion to the present amount of said claims, exclusive of costs, so far as the same may be sufhcient or necessar}'^ to satisfy such claims." The •answers disclose the material facts of the case. On the 1st day of January, 1846, the firm of Bennett & Ford, being largely indebted to certain New York merchants for mercliandise purchased during the previous summer and fall, and also indebted to certain persons residing in their vicin- age, dissolved their copartnership ; Ford, the retiring partner, on the same day, assigning and selling to Bennett all his inter- est in the stock of goods, hooks of account, etc., the property of the said copartnership, " for the purpose of paying off" the creditors of the said firm, and closing the concern. On the 15th of the same month the said Bennett sold and delivered to George W. Gilbert the stock of merchandise in the store lately owned by the said copartners for the sum of $3,125, and took his note of the same date for that sum, payable in one year. On the 19th of January, but a few days after the dissolution of the partnership, and the sale to Gilbert (all within three weeks), Bennett makes the a.ssignment to the defendant Hill, as set forth in his answer, with the preferences, and limitations, and trusts, therein contained. No period is fixed in the assignment when the trust is to be closed. It comprehends the co})artnership estate of the firm of B. & F., viz., " the claims, demands and personal estate of every kind, which recently were the property of the said co- partners, and then the property of said Bennett." The assignor Bennett divides the creditors of Bennett & Ford into two classes, and designates a preference for tlie first class in payment. Annexed to the assignment, and forming a part of the same, is the schedule of property assigned, esti- mated by the assignor at $4,749.19, inclusive of Gilbert's note for $3,125 given expressly for the stock of goods which had been, " during the previous summer and fall," purchased on credit by B. & F. from the foreign creditors composing the second class. The first class of creditors are those who reside in Ann Ar- bor and its vicinity, and are directed to be paid first the full • amount of their claims in the order in wliich they are named. ."Their claims are stated at $849.19, which amount with the POOR V. CARLKTON. 307 claims of the other creclitor.s nut eiiuiiifratcd by name, but designated generally as " residing in neighboring towns," to- gether with the expenses of the trust, 'will, at a reasonable esti- mate, bring the first })aymcnt to at least $1,200 ; leaving, for pro rata distribution among the second class of creditors (chiefly — yea, with one exception — merchants residing in the city of New York, who had, "the previous summer and fall," fuinished the firm of B. & F. with their stock of goods on credit), the sum of $3,549.19. The amount stated to be due, in schedule 3, to these foreign creditors is $6,205.84 ; to meet which the above balance of $3,549.19 (if it ever could reach even that amount) was de- signed for pro rata distribution, but with the express provi- sion by the assignor Bennett, tluit, if any of this last list of creditors should commence, or have commenced, any legal proceedings for the recover}^ of their claims, such creditors should be postponed from any payment out of the trust fund until all the other creditors, domestic and foreign, should have been paid in full, which from the character of the assignment and the amount appropriated for distribution, would, of course, be forever ; or, in other language, such of the creditors who might bring suit, unless they all did so in second class, are excluded from the fund. [Note. — Only so much of this cat-e is reported as relates to Equity Pleading and Practice.] POOR V. CARLETON. (Circuit Court for Massachusetts: 3 Sumner, 70-83. 1837.) Bill to enjoin the sale or transfer of certain certificates of stock. Opinion by Story, J. Statement of Facts. — The motion to dissolve the injunc- tion granted, in this case, has been made and argued by the counsel for the defendants upon the general ground tliat, by the rules of courts of equity, after the answers have come in, denying the whole equity of the bill, the defendants are en- titled to have the injunction dissolved. On the other hand, the plaintiff insists that the motion ought not to be granted, upon the ground of irreparable mischief; and in support of the argument he has offered and read certain depositions to establish that one of the princi[)al defendants is insolvent, and another is of low character, indigent and irresponsible, and 308 EQUITY PLEADING. that the third is a minor ; and if the certificates of stock stated in the hill are transferred, or payment of the sums due and recoverahle on them is received by the defendants, there will, in the event of the suit being sustained, be an irreparable loss of the whole property to the plaintiff. The defendants insist, in reply to this statement, that the affidavits are not, in this stage of the cause, admissible for the purposes alleged ; and that if they are, the case made by them of insolvency, and low and irresponsible character, will not justify the court in the extraordin^iry step of continuing the present injunction, after such a full denial by the answer of the whole equity of the bill. In the first place, let us consider the ground of the defend- ants, as to the right to have the injunction dissolved, upon the coming in of the answer. This, it is to be observed, is not the case of the common injunction issued against the defendants for not a})pearing, or for not answering the bill at the time prescribed by the practice of the court. In such cases, which usually occur in bills to stay proceedings at law, it is of course to dissolve such an injunction, if the answer denies the whole merits; and the plaintiff will not be permitted to read affidavits in contradiction to the answer, upon the motion to dissolve the injunction. This is sufficiently apparent from the statements made by Mr. Eden, in his valuable book on in- junctions. Eden on Injunct., 88, 108, 109, 118, 326. But tlie })resent case is one of a special injunction granted to restrain the negotiation of the certificates, and the receipts of payment thereon, until the further tive woi'ds, "in the few excepted cases," clearly import. I confess that I should be sorry to find that any such ])i'actii'e had been established, as tliat a s|){'cial injunction should, at all e\ents, be dissolved 310 EQUITY PLKADING. Upon the mere denial by the answer of the whole merits of the bill. There are many cases in which such a practice would be most mischievous; nay, might be the cause of irreparable mischief The true rule seems to me to be, that the question of dissolution of special injunction is one wliicli, after the answer comes in, is addressed to the sound discretion of the court. In ordinary circumstances the dissolution ought to be ordered, because the defendant has prima facie repelled the whole merits of the claim asserted in the bill. But extra- ordinary circumstances may exi.st, which will not onh^ justify, but demand, the continuation of the special injunction. This, upon the principles of courts of equity, which always act so as to prevent irre|)arable mischiefs and general inconvenience in the administration of public justice, ought to be the practical doctrine; and I am not satisfied that the authorities, properly considered, do establish a contrary doctrine. If they did, I should hesitate to follow them in a mere matter of practice, subversive of the very ends of justice. Indeed, there are numerous cases which show the gradual meliorations or changes, often silent and almost unperceived, which have been introduced into the practice of the courts of equity, to obviate the inconveniences which experience has demonstrated, and to adapt the remedial justice of these courts to the new exigencies of society. Thus, for example, thirty years ago. it seems to have been thought by Lord Ehkm, that an injunction to restrain the negotiation of a negotiable instru- ment was an extraordinary interference of the court, and that, upon the coming in of the answer, the case stood exactly as if the case had been upon the common injunction to stay pro- ceedings at law. Berkley v. Brymer, S) Ves., 355, 35(1 And the case was then thought distinguishable from that of an in- junction granted to stay waste, in which the court would interfere, on account of the danger of irreparable mischief, and continue the injunction to the hearing. But this doctrine lias been since completely abandoned; and in Plood v. Astor, 1 Russ., 412, Lord Eldon himself, adverting to the supposed practice not to interfere in cases of negotiable securities to pre- vent their negotiation, said: " I do not recollect such a doc- trine to have been at any time in my experience the law of this court. It is true that applications for injunctions of the sort now moved for have become much more frequent than they were in former days. But the reason is that, in the POOR V. CAKLKTON. 311 present state and form of" tlio transactions ol' iiiankiiid, (here is an increased necessity for them; a necessity, too, wliich is not likely to become less." This last, doctrine has been in the fullest manner recognized and acted ujx)n by the supreme court of the United States. Osborn v. liank of United States, 9 Wheat., 738, 845. But su[)posing the doctrine were as conijirehen.sive, as to the dissolving of a special injunction on the coming in of the answer, as the counsel for the defendants has contended; the question occurs whether it is applicable to all kinds of an- swers w}iich deny the whole merits of the bill, or whether it is applicable to such answers only as contain statements and de- nials by defendants conusant of the facts, and denying the allegations upon their own personal knowledge. It seems to me very clear, upon principle, that it can apply to the latter only. The ground of the practice of dissolving an injunction upon a full denial, by the answer of the material facts, is that, in such case, the court gives entire credit to the answer, upon the common rule in equity that it is to prevail, if responsive to the charges of the bill, until it is overcome by the testimony of tvv'o witnesses, or of one and other stringent corroborative circumstances But it would certainly be an evasion of the principle of the rule if we were to say that a mere naked denial by a party who had no personal knowledge of any of the material facts were to receive the same credit as if the denial were by a party having an actual knowledge of them. In the latter case the conscience of the defendant is not at all sifted; and his denials must be founded upon his ignorance of the facts, and merely to put them in a train for contestation and due proof to be made by the other side. This distinction is alluded to and relied on b}'^ the supreme court in Clarke v. Van Reimsdyk, 9 Cranch, 160, 161. See, also Hughes -?;. Gar- ner, 1 Younge & Coll., 328. The sole ground upon which the defendants are entitled to a dissolution of an injunction ui)on an answer is that the answer in effect disproves the case made by the bill by the very evidence extracted from the conscience of the defendant, upon the interrogation and discovery sought by the plaintiff to establish it. But what sort of evidence can that be which consists in the mere negation of knowledge by the party ap- pealed to? Such negation affords no presumption against the plaintiff's claims, but merely establishes that the defendant 312 EQUITY PLEADING. has no persojial knowledge to aid it or to disprove it. It is upon this ground that it has been held, and, in my judgment, very properly held, that if the answer does not positively deny the material facts, or the denial is merely from information and belief, it furnishes no ground for an application to dis- solve a special injunction. The cases of Roberts v. Anderson, 2 Johns. Ch., 202, 204; Ward v. Van Bokkelen, 1 Paige, 100; The l^'ulton Bank v. New Yoi'k & Sharon Canal Co., 1 Paige, 311; Rodgers v. Rodgers, 1 Paige, 426, are fully in point. The importance of this distinction is manifest in the present case. Here the defendants are merely the heirs and represen- tatives of the original party (Isaac Carleton) deceased;' and the original transactions detailed in the bill, and under which the plaintiff asserts his title to relief, took place from twenty-eight to thirty years ago; and there is no pretense to say that any of these defendants have any personal knowledge of these transactions. This is sufficiently apparent from their answers. But by a certificate of the births of the defendants, which is very properly in the case for the present purpose, it appears that the principal defendants, Richard Carleton and Isaac Carleton (the other defendant being yet a minor), were, at the time of the transactions, so young as to demonstrate that they could have no personal knowledge, Richard being then only nine or ten years old, and Isaac only two or three years old. For the purpose, then, of dissolving the injunction, their an- swers cannot be treated as com[)etent evidence to repel the allegations of the hill, or to disprove the transactions on which it is founded. In I'egard to the admission of the alKdavits, there are other considerations which require attention. All the affidavits, ex- cept that of Josiah Barker, are simply to the jjoint of the insolvency and indigence of the defendant Isaac Carleton, and of the low character, intem{)erance and indigence of the de- fendant Richard Carleton. They satisfactorily, to my mind, establish the facts, if they are admissible in evidence; and that they are so admissible I cannot doubt, for they are merely to collateral matters, not touched by or contradictory to the answers. Taggart n. Hewlett, 1 Meriv., 499, and Morgan v. Goode, 3 Meriv., 10 and other cases cited by Mr. Swanston in his note to Smj'the i'. Smythe, 1 Swanst., 254, sufficiently establish fliis position. See, also, Eden on Injunctions, 109. Without doulit the defendants are at liberty to repel such atlidavits by I'ooi; V. CAltl.K'lON. olo countiM- aHidavits to \\\v sniiic |)()iii1s: for (itlici'wisc tlicy iiiii;lit be coinproinitted by stati-iiu'iits wiiirb tlicy cDuld have iio dp- portunity to answer. , In retiard to the affidavit of IJarker, that is of a very diilei-- eiit eliaracter, and ^-oes to thi' [)roof of the ori^i;inal t i-ansaetions stated in the bill, and is in direet contradietion to the negative allei[j;ations in the answers. It was not tiled when the injnne- tion was obtained; but it has been tiled since the answers have come in. Under these circumstances the question arises, whether it is admissible to be read on the present motion. In cases of the common injunction, it has been already stated that, after an answer denying the whole facts and merits, affidavits cannot be read to contradict the answer, on the motion to dissolve. The language of Lord Eldon, in Clapham v. White, 8 Ves., 35, 36, already cited, is full to this purpose. But in cases of special injunctions, affidavits filed in support of the original injunction may \)c I'ead. upon the motion to dissolve, in contradiction to the answei-, in special cases, that is to say, in cases of irreparable mischief, such, for example, as of waste. See Eden on Injunctions, 320 ; Peacock V. Peacock, 16 Ves., 49, 50; Smyihe r. Smythe, 1 Swanst., 253, and cases cited in note (b) : Norway ''. Kowe, ID \'es., 144 ; Charlton v. Panther, 19 Yes., 149, note (c). Put it has been held by Lord Eldon, that even in cases of waste such affidavits are not admissible to found a motion for an injunc- tion after the answer (none having been previoush^ granted) ; because, if the affidavits are filed before the an.swer, the defendant po.ssesses an opportunity of explaining or denying the facts stated in these affidavits ; but if the plaintiff reserves his affidavits until after the answer is tiled, he does not deal fairly Avith the defendant, who is entitled, before answer, to be apprised of the |)oints on which the plaintiff rests his case. Smythe ?'. Smythe, 1 Swanst., 253. I confess myself not so strongly impressed with the force of the reas')ning as the learned judge seems to have been. And it would be very ea.sy to obviate the objection, by allowing the defendant, by his own as well as other counter affidavits, to repel the statement, which he has not, by his answer, had an o])por( unity to meet and explain or deny. Theie is another (lualitication of the doctrine in cases of irreparable mischief, and that is, that, though the original affidavits mav Ix' read as to other facts contradict(>d 1)\- the 314 KQUITY PLKADING. answer, they cannot be read in suppv)rt of the title of the plaintiff which is contradicted by the answer. The ground of this exception seems to be that the court ought not collaterally to decide upon the title. So the doctrine was established in Norway v. Kowe, 19 Ves., 144, 157. Whether that doctrine stands upon a satisfactory foundation is quite a different ques- tion. Upon general principles, I cannot well see why the court, to prevent irreparable mischief, may not, upon an appli- cation to continue an injunction, look to affidavits in affirm- ance of the plaintiff's title, not so much with a view to establish that title, but to see whether it has such a probable foundation in the present stage of the cause as to entitle the plaintiff to be protected against irreparable mischief, if ufMrn the hearing it should turn out to be well founded. In cases of irreparable mischief — and I think the present case properly falls under that head, or stands upon the same analogy — it seems to me that the more fit course for the due administration of public justice is to follow out the sugges- tions of Lord Eldon himself, in the case of Peacock v. Pea- cock, 16 Ves., 51. His lordship in that case, which was u[)on a motion respecting an injunction in a case of partnership, said : " With regard to the point of practice as to reading affi- davits, this court has interfered in these cases of partnership upon principles not the same, but analogous to those on which it interposes in the case of waste. In that instance, if the lact can be maintained, the objection is proved with very little effect, that the parties may proceed, vying with each other by affidavits without end. The court does permit affidavits, tak- ing care to prescribe limits according to the circumstances of each case." This, it appears to me, is the true view of the matter. The admission of the affidavits, whether filed before or after the answer, whether they are to the title of the plain- tiff or to the acts of the defendant, although they are contra- dictory to the answer, ought to rest in the sound discretion of the court, according to the circumstances of each particular case, without the court's binding itself by any fixed and un- alterable rules as to the exercise of that discretion. This seems- to have been the course which commended itself to the mind of that great equitv judge, Mr. Chancellor Kent. See Koberts V. Anderson. 2 Jolin. Ch., 202, 205. But see Eastham v. Kirk, 1 John. Ch., 444. I have looked into the earlier practice of the court of chan- roOK V. CAKl.KTON. 315 eery, in order to yatisly niyscir wlictlier. in all cjises ol" irre- parable niiseliief", the court had positively limited its own dis- cretion, under all circumstances, in the manner supposed by the modern authorities. ' Mr. Dickens, wliose great experience in the practice of the court has been tliought by Lord Eldon to entitle his oi)inion to great weight in such matters (Xoi'way V. Ivowe, 19 Ves., 154), in reporting the case of Strath more v. Bowes, 1 Dick., 673 ; 8. C, 1 Cox, 2(13 ; 2 Bro. Ch., 88, has, it is true, given us his view of the practice in the following terms: "On application to continue or dissolve an injunction, either of course or special, 1 have always understood it to be the rule that, though afiidavits are not to be read to sup})ort the plaintiff's equity, that is, his right to come into the court, wdien denied b}' the defendant's answer, yet in injunctions to stay waste, or in the nature of waste, when the waste sworn to and upon which the injunction is grounded is denied, the court will admit proof by affidavit in suj)port of the facts." This passage seems certainly corroborative of what has been supposed to be the later general practice. Yet it is difficult, notwithstanding Mr. Dickens' subsc(][uent explanations of the grounds of this practice, to perceive what solid distinction there is, or ought to be, between admitting affidavits as to title and affidavits as to the facts of waste ; for each of them are equally in opposition to the answer in relation to the material points of relief Mr. Dickens at that time also thought, that affidavits b}' the defendant, in support of his answer, were not admis- sible. But Lord Eldon considers the present practice to be, or at least that it ought to be, upon principle, otherwise. However, Lord Eldon does not understand Mr. Dickens to mean to assert, what the pa.ssage above cited may seem at first sight to import ; for he says, in Norway r. Ivowe, 19 Ves., 104, "Mr. Dickens, however, did not mean, that if there is, b}' the answer, a total denial of the plaintiff's title to stay waste, the plaintiff could not V)y affidavit as.sert his title, conti'adicting the answer in that respect ; " a concession, if well founded, which removes the statement of Mr. Dickens out of the present case. See, also, Eden on Injunctions, p. 328. The truth seems to be, that, in cases of this sort, the prac- tice has been shifting, from time to time, to meet the new exigencies of society and the pressure of peculiar circum- stances ; and the court has never suffered itself to be entrapped by its own rules, so as to interfere with the purposes of sub- 316 EQUITY PLEADING. stantial justice. The practice in America has, I beheve, on this subject, become more liberal than it is in England ; and if it were necessary, I should not hesitate to admit affidavits to contradict the answer, for the purpose of continuing or even of granting a special injunction, where I perceived that, without it, irreparable mischiefs would arise. In the present case, there are circumstances wliich might free me from the necessity of asserting so broad a doctrine. But I wish rather to dispose of the case upon the general ground that the grant- ing and dissolving injunctions in cases of irreparable mischief rest in the sound discretion of the court, whether applied for before or after answer ; and that affidavits may after answer be read by the plaintiff to support the injunction, as well as by the defendant to repel it, although the answer contradicts the substantial facts of tlie bill, and the affidavits of the plaintiff are in contradiction of the answer. The motion to dissolve the injunction is accordingly refused. BROWN V. THE PACIFIC MAIL STEAMSHIP COMPANY. (Circuit Court for New York : 5 Blatchford, 525-537. 1867. ) Statement of Facts. — The plaintiffs in this case are sub- jects of Great Britain. The defendants are the Pacific Mail Steamship Company, the Atlantic Mail Steamship Company, and certain individuals, all of whom, except one Butterfield, were residents of New York. The two com])anies were incor- porated under the laws of New York. Opinion by Blatchford, J. This case, except as to the defendant Butterfield, is one where the court clearly has jurisdiction of the parties. The plaintiffs set out that they are the owners of three thousand five hundred shares of the capital stock of the Pacific Mail Steamship Company. This company, it appears, has a capital now of 120,000,000, divided into two hundred thou.sand shares of $100 each. The bill then alleges that the firm of Brown Brothers & Co., of the city of New York, have standing in their names seventy-seven thousand eight hundred and thirty-nine shares of the capital stock of this company. It tlien .sets out the character of the Pacific Mail Company, its progress, and the development of its business, and alleges certain reasons which existed at the time for making a certain contract, which was made in October, 1804, with Brown Brothers & Co. BROWN V. Tin: rAciFic mail sii;A.Msim' comi-any. .!]( These reasons were, in substaiui'. tlic rrt-ation of a pfi-niaiK'nt share-lioldiiig l)ody, not liable to the ehanges and Huetuations of the stock market. By this agreement it aj)pears that some ten persons associated themselves together and bought ten thou- sand shares of stock, which at that time was one-f{uarter of the entire capital, and that they made Brown Brothers A: Co. trustees of that stock. The written agreement in regard to this stock, which is set out in the bill, sliows that the arrangement was to continue in force until the 1st of December, 1808. The jn-ovisions of the agreement substantially are, that the paities to it are not to sell their stock without having first offered to sell it to the rest of their associates, at a price not above the then current mar- ket value, and, in case of their declining to take it, without next offering it to Brown Brothers ct Co.; but any one of the parties is to be at liberty to withdraw on those terms at any time. The agreement also takes the shape of an irrevocable power of attorney to Brown Brothers & Co. to vote upon the .stock ; and all increase of such shares of stock, by stock divi- dends, until the 1st of December, 1868, is to come under the same agreement. In this respect the agreement seems to dif- fer very little from a mere power of attorney, or proxy to Brown Brothers & Co., to vote upon these shares, with the ad- dition that the power is irrevocable, and that there are certain privileges reserved to the owners of the stock in regard to the manner of dealing in it, and withdrawing from the arrange- ment. I am unable to perceive anything in this agreement contrary to public policy, or anywise open to objection ; and there is no affidavit produced here, on the part of any one con- cerned in this arrangement — any one who is a piincipal of these agents or trustees, complaining of anything wrong in re- gard to the administration of the tru.st. ov that there is any prejudice by having the stock in the }»osition in which it is placed. Then there is a .second agreement set out, whereby, as the bill alleges, the Atlantic Mail Steam.'^hi}) Company became stockholders in the Pacific Mail Company to a certain amount of stock, and made Brown Brothers & Co. their trustees under an agreement running for the same length of time, namely, until December 1, 1868, with an irrevocable power of attorney to Brown Brothers & Co. to vote u])on such stock, and a pro- vision that the stock was not to be sold unless it was oU'ered to 318 EQUITY PLEADING, be sold first to the Pacific ]\Iail Company. For all the sub- stantial purposes of this motion, this agreement is, in substance and effect, the same as the first one. The bill then sets out the further development of the Paci- fic Mail Company on the Atlantic side, and the extension of its operations by a line to China and Japan, consisting of large steam vessels, and the further increase of its capital stocky in November, 18GG, to $15,000,000, and in January, 1867, to $20,- 000,000. It also states, what is quite apparent, that this in- crease of stock diminished the proportion which the stock standing in the names of Brown Brothers & Co. bore to the entire stock. It then sets out that the number of shares under the first agreement has by the increase of it, through stock dividends, increased to twenty -six thousand six hundred and sixt^^-six shares, which number of shares is held by Brown Brothers & Co. in trust under that agreement. It also states that the number of shares held by Brown Brothers & Co. under the second agreement is twenty-six thousand six hundred and sixty-six. It then sets out the fticts connected with a third lot of shares standing in the name of Brown Brothers & Co., to the number of twenty-four thousand three hundred and fifteen shares, of which twenty-four thousand and seventy-two shares were issued at one time to Leonard W. Jerome, and were by him transferred to Allan JNIcLane, trustee, and w^ere by him transferred to Brown Brothers & Co. • But I do not perceive that any relief is asked in regard to this third lot of shares. The bill then sets out that tliere is an election for directors of the Pacific Mail Company coming on to-day at 12 o'clock ; that four of the defendants, Hartson, Joslyn, Green and But- terfield have been engaged in soliciting proxies for the purpose of voting on shares of stock at such election, based upon state- ments such as appear in a circular signed by them, of which a copy is annexed to the bill ; and that Mr. Hartson has threat- ened to have the directors of the company changed ; it then avers that the defendants Lockwood and Davenport have asso- ciated themselves with the defendants Hartson, Green, Joslyn and Butterfield for the purpose of changing the directors of the company. It then avers specifically that the charges con- tained in this publication by Hartson, Green, Joslyn and But- terfield are unfounded. Those charges relate generally to breaches of trust and unfaithful administration on the part of the trustees, Brown Brothers & Co. No averment is made by BKOWN V. THE TACIFK; MAII, STHAMSHI I' COMPANY. :')1!> the defend an t.><, in any niannrr whatever, that tlirse eharjjjes are well founded. On the contrary, the allegation in thr Kill that the charge.s are unfounded is virtually admitted i)y not being denied. No averment is made, on the part of the de- fendants, that the trusts have been im^)roperly discharged by the trustees. The bill then sets out that, at every election that has taken place since the trusts were reposed in Brown Ihoihers & Co., the election has always been made by votes other than those cast by Brown Brothers & Co. In other words, as 1 un- derstand, that the elections have always been unanimous, and have not been controlled by the votes cast by Brown Brotliers rothers t^ Co. from voting upon the shares held by them ; (2) To obtain such injunction upon the pretense that Brown Brothers & Co. have improperly acquired, or are about to im])roperly make use of, the shares held by them, or upon otlier inaccurate, ill- 320 EQUITY PLEADING. founded or partial statements; (3) That such jjretenses will be erroneous, unjust and wholly unfounded ; (4) That the in- junction will not be obtained, or, if obtained, will not be served until immediately upon such election ; (5) That the effect will be to exclude Brown Brothers & Co. from voting on the fifty-three thousand three hundred and thirty-two shares held by them, whereby a minority of stockholders will succeed in choosing a board of directors, against the wishes of the majority and of the plaintiffs. No one of these averments is denied or controverted. On the contrary, by the making of the affidavit which has been made by four of the defendants upon one point, every intendment must be taken most strongly against the i)arties as an admission of all the matters stated in the bill which the affidavit does not controvert, although the statement in the bill of these allegations, and the absence of any denial of them, would be sufficient of itself. The bill then sets out, as a ground of apprehension that these things may be done, that Hartson and his associates did substantially the same things, in reference to an election of directors in another company, quite recently. Tliat is not denied. It then sets out that Hartson is the president of the Atlantic Mail Steamship Company, and that he and Green, Meigs, Joslyn, Butterfield, Seward and Dimock are directors of the Atlantic Mail Steamship Company, and control the same, and hold the great mass of the capital stock thereof. It then avers that the consequences of this meditated transaction will be disastrous to the Pacific Mail Company, and to the common interests of all the shareholders. That is not de- nied. The bill then points out in what manner it will be so disastrous, with considerable detail and particularity. These averments are not denied. The details are then given in the bill of what Hartson, Green, Joslyn and their associates intend to do to the injury of the plaintiffs and of other stockholders; and this averment is not denied. The bill then sets out that Hartson and his associates are a combination of stock opera- tors and stock speculators, who are designing and intending, in this way, to control a company to whose true prosperity, and to the interests of whose shareholders, their other interests are adverse. This averment is not denied. Certainly, if there ever was a case for relief of some kind by injunction, this case is one of that kind, to prevent the com- mission of so great and admitted a wrong, wholly undefended. HI.'OWN V. Till-: l'A(II-|c MAIL S Tl'lA MSI 1 1 1' (■(»Mi•A^■^•. .'Vil It is a c"isi' ill which there would he lui adecill.ile leiiiedv at law ; because ihe hiw, as settled by the supreme eourt of the United iStates, in ie<;ard to the jurisdiction in suits in eciuity of the courts of the United States, in view of the statute, which declares that there shall be no remedy in equity wiun-e there is a plain, adequate and complete remedy at law, is, that the remedy at law must be as efficient to the ends of justice, and its complete and jirompt administration, as the remedy in equity. Now, in the present case, the election, taking place under these circumstances, which it is thus admitti-d will be the circumstances of the case, would be perfectly legal, although accomplished in this way by a minority of the votes. There would be no ground, so far as I am able to perceive, for setting aside the election, because an injunction, obtained from a proper court having jurisdiction, had excluded certain per- sons from voting. In this case, no want of time to meet the charges of the bill has i)een set up ; no application to postpone the motion has been made ; the parties have been represented by able coun- sel, in a hearing of some six hours, while the allegation in the bill is admitted, that the defendants intend to |)rocure an injunction of the description alleged in the bill, without giving the plaintiffs or Brown Brothers & Co. any opportunity of being heard. As I before remarked, four of the defendants have made an affidavit upon one minor point, and have denied nothing else. They must, therefore, be held to admit everything which they do not deny. Under these circum- stances, it certainly would be a rei)roach to the administration of justice, if these foreigners could have their })roperty invaded in this way, by measures admitted to be wholly without any ground to support them, without any means of relief As to the character of the injunction asked for, it is laid! down, in Judge Redfield's Treatise on the Law of Railways; (vol. 2, § 2'21), that " it has been common to i)roduce a posi- tive efif'ect, through an injunction out of chancery, by means-; of a prohibitory order," and that a mandatory order is, in courts of equity, seldom denied, unless the remedy at law is.- perfectly ade(|uate. And this ca.se presents a case eminently of equity juiisdiction — a case of irreparable injury to the plaintiffs, and a case where no such injury can be produced to the defendants. Indeed, under the averment of the bill, that these transactions of the defendants will produce great. 21 322 EQUITY PLEADING. injury to the interests of all the stockholders, and the ad- mission, or absence of denial, of such averment, it is clear that there can be no injury to the proper interests of such of the defendants as are existing shareiiolders in the Pacific Mail Com|)any, by granting an injunction ; whereas it is manifest from the statements of the bill that there is a clear case of probable irreparable injury to the plaintiffs. I have, after a careful examination of the five prayers for injunction in the bill, come to the conclusion that the first, second and third must be substantially granted ; but as to the fourth and fifth, I do not see any ground for granting an in- junction in regard to them. The}' stand on very different grounds fi-om the first three. As to the first prayer for in- junction, I grant it substantially as prayed for, except as to the defendant Butterfield, who is not a citizen of the state of New York. I do not think the court has any .jurisdiction whatever of him, under any aspect of the case. Lock wood and Davenport have been served. Hartson and Joslyn are directors of the Atlantic Mail Compan}', and process was served upon the company at its office. Under the statute, which requires reasonable previous notice of an application for an injunction to be given to the adverse party, I think, so far as any one of the defendants who is a director of the Atlantic Mail Company and has not been served is concerned, that he has had reasonable notice, by the service on the company at its office. Hartson, Joslyn, Green and Charlick, however, come in under another aspect of the case. They have made an affidavit in this suit, which has been used to oppose this motion, and, under the circumstances, I think they are con- cluded from setting up a want of sufficient notice. As to the second prayer for injunction, Butterfield must be excluded from that, of course ; and I cannot grant that, as concerns the other shareholders generally of the Pacific Mail Steamship Company, and the words " and all others the shareholders of the Pacific Mail Company," which are in the prayer of the bill, must be stricken out from the injunction. I do not think I can enjoin the other shareholders without notice, or that service upon the Pacific Mail Company is to be •considered, for the purpose of this second prayer, as service on such other shareholders. The third prayer for injunction is, I think, a proper one as to the defendants served, Butterfield being, of course, excepted, BROWN V. THE PACIFIC MAIL STEAMSIIIl' COMPANY. .'52.S if he has been served. It is also proper as to Ilartsoii, Joslyn, Green and Charlick, some of whom have been served, and some of whom, 1 believe, have not be^en served. But all four of them come in, und-er the j>revious remarks, because of the affidavit which they have made. As to the defendants Meigs and Seward, and many others not before mentioned, so far as they are directors of the Atlantic Mail Company, I think that they have substantially had notice. Therefore, under the third prayer, all the directors of the Atlantic Mail Com{)any may be included in the injunction. The fourth and fifth prayers do not, I think, fall at all within the princi})lcs u})on which the first, second and third are granted; and, without expressing at length my views in regard to them, I decline to grant the injunction })rayed for in them. In regard to so much of the second prayer for injunction as seeks to extend the injunction, to forbid the defendants from voting, as proxies, for such stockholders, who are not parties and are not themselves enjoined, as have given their proxies to some of the defendants who are enjoined, the gravamen of the bill is, that the defendants have combined to conduct their intended operations by means of proxies obtained from share- holders; and that averment is not denied. The defendants deny that they have bought proxies, but they do not deny that they have arranged to control such proxies. I think that the court, having its hand upon Ilartson and his associates in these transactions, has a right to restrain them from doing anything in that regard, either individually or as proxies ; especially as the bill sets out, and it is admitted, that the means by which he is seeking to carry on this scheme is by procuring [»roxies. I do not mean to restrain the })arties giv- ing the proxies, because they are not parties to the suit, but I think that Hartson and his associates, no matter in wliat capacity they act, whether individually or as agents or attor- neys, must be restrained by the court ; otherwise, the whole injunction might be utterly inefTective. By the allegations of the bill, Hartson and his associates are engaged in these trans- actions, which the court decides are improper ones, and they, therefore, ought to be restrained in every ca])acity. In regard to the petition ])resented by Wheeler, asking to be made a co-plaintitf in the bill, I think the point is if obedieiu'c to it .•^lutulil ix't|uii'c liiin to do I lie siiiiplc nlliniia- tive act of clo.sing his gates. 'l\\v ikmsou uIkisc licMs were in- undated and whose crops were distiuyed, in the ease su|)|M)scd, would find poor satisfaction in being told that he nni.'^t wait until final decree before any ])rocess could issue to compel tho shutting of the gates, and he must sct'k compensation for the injuries his propei'ty may sutler in the meantime in an action at law. There is no species of property re(juiring more fre(|uently for its protection and enjoyment the aid of a court of e([uity, and particularly of its preventive process of injunction, than rights to water. For purposes of mining as well as for ordi- nary consumption, water is carried in the mining regions of Nevada and California over the hills and along the mountains for great distances, by means of canals and Humes and a(iue- ducts, con.structed with vast labor and enormous expenditures of money. Whole communities dejH'ud for the successful prosecution of their mining labors upon the supply thus fur- nished ; and it is not extravagant to say that nuich of the securit}^ and conseciuent vaku of this species of property is found in the ready and ample protection which courts of equity afford by their remedial processes of injunctions, an- ticipating threatened invasions upon the property, restraining the continuance of an invasion when once made, and ])re- serving the j)roperty in its condition of usefulness until the conflicting rights of contesting claimants can be considered and determined. The limitation of the process to cases calling for no affirmative action on the party enjoined would strip the process in a multitude of cases of much of its pi'actical l)enefit. I am aware that there are adjudications of tril)unals of the highest character denying the authority of a court of equity, on a preliminary ai)plication, to issue an injunction, even in a restrictive form, when its obedience would I'cquire the j)er- formance of a substantive act. Such is the case of Audenreid v. The Philadeli)hia & Ifead- ing IJailroad Company, recently decided in the supreme court of Pennsylvania, to wliich my attention has been called by the defendants' counsel (since reported in 68 Penn. St., 370). Tiic opinion in that case was delivered by Judge Sharswood, who is a jurist of national reputation, and anything which falls from him is justly entitled to great consideration. lie states that the authorities both in England and in this country are 330 KCiUITV I'L FADING. very clear that an interlocutory or preliminary injunction cannot be mandatory. By this he means, I suppose, that the authorities show that such an injunction cannot be mandatory in form, for he refers to the case of Lane v. Newdigate, 10 Ves., 193, when Lord Eldon ordered an injunction to l)e drawn so that, although restrictive on its face, it compelled, the defendants to do certain specific things. Of that case the learned judge observes that it is not a precedent which ought to be followed in any court, and that a tribunal which finds itself unable directly to decree a thing, ought never to attempt to accomplish it by indirection. Notwithstanding the great respect I entertain for the opin- ions of Judge Sharswood, and for the decisions of the supreme court of Penns^'lvania, I am not prepared to assent to the view of the authorities stated in the case cited, nor to the con- clusion there expressed that the cases in England ought not to be followed in any instance. Certain it is that the jurisdiction of the court of chancery in England to decree in special cases upon motion the issue oi injunctions which, though restrictive in form, may still require for then* obedience the performance of substantive acts, has been uniformly maintained since the time of Thurlovv. In Robinson v. Byron, 1 Brown's Ch. Cas., 588, a motion was made for injunction upon affidavits, stating that since April 4, 1785, the defendant who had large pieces of water in his park, suj)plied by a stream which flowed to the mill of the plaintiff had at one time stopj)ed the water, and at another time let in the water in such quantities as to endanger the mill. The lord chancellor, Thurlow, ordered an injunction to restrain the defendant " from maintaining or using his shuttles, floodgates, erections and other devices, so as to prevent the water flowing to tlie mill in such regular quantities as it had ordinarily done before the 4th of April, 1785." The defend- ant was, therefore, compelled by this injunction, to remove such floodgates and other erections as he had constructed if they impeded the regular flow of the water as it had existed before the date designated. In Lane v. Newdigate, 10 Ves., 192, already mentioned as referred to by Judge Sliarswood, the plaintiff was assignee of lease granted by the defendant for the purpose of erecting mills and other buildings, with covenants for the supply of water from canals and reservoirs on the defendant's estates.. COLE SILVER MIN. CO. V. VIllCINIA (iOLD HILL W ATKU CO. oSl reserving to the defendant the liglit of iLsing the water lor his own eollieries. The bill prayed generally that the defend- ant might be decreed to, use and nianag-'e the waters of the oanal so as not to injure the })laintifl in the occupation of his manu- factory, but i)articu]arly that the defendant might be I'c- strained from using certain locks, and thereby drawing off the water which would otherwise run to and supply the manufac- tory, and be decreed to restore a particular cut ibr carrying away the waste waters, and a certain stop-gate, and to restore the banks of the canal to their former lieight, and also to repair, such stop-gates, bridges, canals and towing-paths as existed previous to the lease, and to remove certain locks since made. Upon motion for an injunction, the lord chancellor, Eldon, expressed a doubt whether it was according to the practice of the court to decree repairs to be done, but finally made an order restraining the defendant from impeding the ])laintiff in the use and enjoyment of the demised premises and the mills erected thereon, and the privileges granted by the lea.se, by continuing to keep the canals, or the banks, gates, locks or works, out of repair; and from preventing such use and enjoy- ment by diverting the water or the u.se of any locks erected by the defendants, or by continuing the removal of the stoj)- gate, the chancellor observing at the same time that the injunction would create the necessity of restoring the stop- gate. In Ivankin v. Huskisson, 4 Sim.. 18, the defendants were restrained, on motion, by A'ice-Chancellor Shadwell from con- tinuing the erection of stables on certain premises agreed to be laid out as an ornamental garden, adjoining a club house, and from preventing such part of the building as was already erected from remaining thereon. They were therefore com- pelled to remove the building already commenced. In Hepburn v. Lordon, 2 Hemm. & Mill., 345, the defend- ants were restrained, upon motion, by Vice-Chancellor \\' ood from allowing inflammable damp jute dej)Osited on premises adjoining those of the plaintiff, to remain there, and from bringing any more in such quantities as to occasion danger to the plaintiff's property. Other ca.scs to the same purport might be cited, but the.se are sufficient. I think, to .show that a court of equity has juris- diction to i.ssue, U})on an interlocutory apj)lication, an injunc- tion which will operate to compel the defendants, in order to 332 EQUITY I'LIiADING. obey it, to do substantive acts. It is a jurisdiction which should only be exercised in a case where irreparable injury would follow from a neglect to do the acts required. Some of the adjudged cases evince a disposition on the part of the court to restrict rather than enlarge this jurisdiction. Blakemore v. Glamorganshire Canal Co., 1 Mylne & K., 154. Undoubtedly the general purpose of a temporary injunction is to preserve the property in controversy from waste or destruction or dis- turbance until the rights and equities of the contesting parties can bo fully considered and determined. Usually this can be effected by restraining any interference with it ; but in some cases the continuance of the injury, the commencement of which has induced the invocation of the authority of a court of equity, would lead to the waste and destruction of the prop- erty. Jt is just here where the special jurisdiction of the court is needed — to restore the property to that condition in which it existed immediately preceding the commencement of the injury, so that it may be preserved until final decree. III. It only remains to consider whether the equities of the bill are so fully denied by the answer as to justify the dissolu- tion of the injunction. The material allegations of the bill are that the complainant, in running certain tunnels into its mining claims, discovered and appropriated the water in con- trover.sy; and that the defendants subsequently, by means of the Nevada Tunnel, struck the water, and diverted it from the complainant. These allegations are not positively denied by the answer. The construction of the tunnels of the complainant, and the diversion of the water by the defendants through the Nevada Tunnel, are admitted. The discovery and prior appropriation of the water by the complainant are only denied upon infor- mation and belief; and every denial which relates to the title of the water is made in a similar manner. Denials in that form may be sufficient to raise an issue for trial, but they amount, for the purposes of the motion, to no more than hear- say evidence. They will not justify the dissolution of the injunction. ''The sole ground," says Mr. Justice Story, "upon which the defendants are entitled to a dissolution of an injunction upon an answer is that the answer in effect disj)roves the case made by the bill, by the very evidence extracted from the con- science of the defendant, upon the interrogation and discovery COLE SII.VKI; MIN. (^O. V. VIKGIMA (iol O IIIII, WATER CO. 383 sought l)y the i>l;iiiitiir (o cstalilisli it. I»iit wliat sort <»f" evi- dence can t!;at be, which consists in the mere negation ef knowledge bv the party appealed to? Sucli negation atlVu'ds no ])resuni})tion against the plaintiff's claims; but merely es- tablishes that the defendant has no personal knowledge to aid it or dis{)rove it. It is upon this ground that it has been held, and in my judgment very properly held, that if the answer does not positively deny the material facts, or the denial is merely from information and belief, it furnishes no ground for an application to dissolve a special injunction." Poor v. Carlton, 3 8umn. 78 ; see also, Roberts v. Anderson, 2 Johns. Ch., 202; Ward v. Van Bokkelen, 1 Paige, 100; United States V. Parrott, 1 McAl., 300. The same objection applies to the allegations respecting the new matter relied upon to establish prior rights in the two Schiels, with whom the defendants claim to be in privity. Upon insjjection of the answer, it appears that all which is stated in relation to the origin, working, continuance and transfer to the defendants of the claims of t^hese parties is founded upon information and belief. The statement does not purport to be made ui)on any j)er- sonal knowledge possessed by the defendants, but only " ac- cording to their information and belief." Allegations resting upon this ibundation furnish no ground for disturbing the in- junction. For all the purpo.ses of this motion the case stands precisely as though these allegations were omitted from tlie answer. The questions suggested by the learned counsel of the de- fendants — whether the water exists in such state or condition as to render its diversion, under thc^ circumstances, remediable, or anything more than daminnn ah^^que injuria; and whether the injunction is consistent with the policy and license of the general government to miners upon public lands — can be bet- ter considered and more justly determined on the hearing after the entire facts of tlie case are developed l)y the evi- dence. Upon the case as presented, I am of opinion that the injunc- tion should be continued until the hearing. The motion to dissolve the injunction is therefore denied. CHAPTER XII. CllOSS-BILLS. Bttle 72. Where a defendant in equity files a cross-bill for discovery only against the plaintitf in the original bill, the defendant to the original bill shall first answer thereto before the original plaintiff shall be compellable to answer the cross-bill. The answer of the original plaintiff to such cross-bill may be read and used by the party filing the cross-bill at the hearing, in the same manner and under the same restrictions as the answer praying relief may now be read and used. BRONSON V. LA CROSSE & MILWAUKEE RAILROAD COMPANY. (2 Wallace, 283-312. 1863.) Statpjment OF Facts. — This was a suit by Bronson and Soutter in the circuit court for the district of Wisconsin, to foreclose a mortgage given to secure the bonds of the company to the amount of $1,000,000. The Milwaukee & Minnesota Railroad Company, which had previously'' purchased the equity of redemption of this road at a sale under a tliird mort- gage, was made a party defendant, but made no defense. Two of the stockholders of this company, Rockwell and Fleming, asked and obtained leave to file their answers for the company, upon the ground that the president of the com- pany declined to make any defense. The defendants, Rock- well and Fleming, who claimed under the third mortgage, alleged that the bonds secured by the prior mortgage had been conveyed to complainants without consideration; also that the foreclosure was collusive as between the railroad company and its lessee. Chamberlain, who fraudulently and collusively refused to apply the earnings of the road to the payment of interest on the bonds. Certain judgment creditors ( 334 ) BRONSON V. L\ CKOSSK ^t Ml I.W AUK KH ItAH.KOAI) CO. ;>35 were also inado ilet'eiulauts, their jiulgnients havin*; been ob- tained since the execution of the inortiia^'e. Opinion by Mr. Justice Nklso.n. As the two stockhoUlers (IJockwell and Flcininany; and he will also be permitted to appear on behalf of other stock- holders who may desire to join him in the defense. But tliis defense is independent of the company and of its directors, and the stockholder becomes a real and substantial party to the extent of his own interests and of those who may join him, and against whom any proceeding, order or decree of the 336 EQUITY PLEADING. court in the cause is binding, and may bo enforced. It is true, the remedy is an extreme one, and should be admitted by the court with hesitation and caution ; but it grows out of the necessity of the case and for the sake of justice, and may be the only remedy to prevent a flagrant wrong. A com- plainant, if he chooses, may compel a corporation to appear and answer by a writ oi distringas ; or he may join with the corporation, a director or officer, if he desires a discovery under oath. But we are not aware of any other except a complainant who can compel an appearance or answer. Now, although the appearance and answers of the stockholders (Rockwell and Fleming) were irregularly allowed by the court, as each was permitted to appear and answer in the name of the company, yet, as the defense set up is doubtless the same as that which they would have relied on if they had been admitted simply as stockholders, we are inclined to regard the answers the same as if put in by them in that character, in the further views we shall take of the case. Each one swore to the truth of his answer in the usual way. Before we enter upon an examination of the merits of the case, it will be proper to dispose of the cross-bill filed by Flem- ing against the complainant. This bill was filed in the name of the company alone, signed by their solicitors and counsel. The name of Fleming does not appear. And in addition to this, it appears that Fleming, in his petition for leave to ap- pear £ind answer the bill in the name of the company, also asked leave to file a cross-bill. Leave was granted to put in the answer, but not to file the bill. The filing of it subse- quently, therefore, was an irregularity for which the court below very properly afterwards set it aside. The cross-bill, so much spoken of in the argument, is thus out of the case. In this connection we may as well refer to the answers of the judgment creditors, who were made parties defendant to the bill of complaint. Sebre Howard recovered a judgment in the United States district court, on the 28th November, 1859, against the La Crosse & Milwaukee Railroad Company, for the sum of $16,379.86 ; and Graham & Scott, a judgment in a state court of Wisconsin, on the 25th November, 1858, against the same company for the sum of $29,820.71; and another judgment in the same court on the 21st September, 1858, for the sum of $11,181.15 ; and also a judgment against the same company imoNSOX V. LA CROSSE & MILWArKKK ItAII.ItoAD CO. 387 in the United .States distriel eourt, on the 1 1 th Jannary, ISIH), for the sum of $44,413.18. This hittei' judninenl appears from the answer, as we understand it, to luive l)i'en loiiiKhMl on the two ))revious judgments in the state court. Now. it a]tj)i'ars that each of these judo-ments were recovered after the aartition thereof, as against Bliss. Tiie title which he asks to have quieted and confirmed is derived from a sale for taxes levied upon the real estate mentioned in the bill, under the act of congress of IStil, and the amenda- tory act of 1862, pas.sed to enforce the collection of the tax in the insurrectionary districts. The defendant Peay files his answer and crossbill wlien the proceedings under which the plaintift" claims were had, in which he states that he was, and still is, the true owner of the lots in controversy ; that for several reasons detailed in the answer and cross-bill, the proceedings were void and conferred no title on Bliss, the ])urchaser at the tax sale; and that the plaintiff, who purchased from Bliss, is therefore without title. I'KAY V. SCIIKNCK. 345 He makes Bliss, as well as the plaiiitill', a (lefeiulaiit to this cross-bill, and |)ra_vs that the tax sale may bo declared void, and his title ciuieted, and the possessioi'i of the property, wliieh had been delivered to Bliss by the tax coniniissioner, restored to him. He also ])rays for the appointment of a receiver pending the litigation, and for other relief. The plaintilf and Bliss filed a denmrrer to this cross-bill, based on the proposi- tion, that the bill cannot be entertained in this court, because Peay and Bliss are both citizens of the state of Arkansas. If this were an original bill brought by the plaintiff therein, as an independent measure of relief, it could not be sustained. Bliss was the sole purchaser, at the tax sale, of the property in dispute, and the certificates of sale are in his name, and Schenck, \vho alleges a right in himself to only an undivided fourth part, derived his claim by purchase from Bliss. It is clear, therefore, that as between Peay as plaintiff, and Bliss as defendant, both being citizens of Arkansas, no original and indej)endent suit of tliis character can be maintained in the federal courts. On the other hand, it is insisted that Schenck, who is a citizen of Ohio, and the plaintiff in the original bill, asks, as against Bliss, merely a partition of the premises, and that Peay has no interest in this branch of the case; that the princi|)al relief sought by him is a decree quieting his title as against Peay ; and that in this branch of the case, Bliss' interests consist with the ])laintiff 's, and that it thence appears that the interests of Schenck and Bliss are equally adverse to Pea^^'s. It is also said that the matter of the cross-bill is strictly defensive, and necessary to be presented in order to bring before the court fully the defenses of the plaintiH' therein to the original bill. If this be true, the demurrer must be overruled, for it is th(^ established doctrine of this court, that where a party defend- ant finds it necessary for his defense, and to })revent an in- justice resulting to him from the position in which the ca.se stands, he is at liberty to file a cross-bill, if the case is j)ending in chancery, or an original bill, if the case is one at law. although the })arties defendant to said bill, or some of them, may Ix^ citizens- of the same state with himself The only limitations to this princijtal are, that the bill nuist be neces- sary to the dcirnsc ol the party filing the bill, and it must be filed against i)arlics already before the court, and subject to its jurisdiction, cither as plaintiil's or .di'fendants in the oi'iginal 34G EQUITY PLEADING. suit. Dunn v. Clarke, 8 Pet., 1 ; Clai'ke r. Matliewson, 12 Pet.; 164 ; Cross v. De Valle, 1 Wall., 1. And in deterniining- whether a hill is original and inde- pendent, or is ancillary and auxiliary to a matter already before the court, we are not confineeatty, 457, 4()0. This dis- tinction between a bill of I'eview and a bill in the nature of a bill f)f review, though important in l^ngland, is not felt in the practice of the courts of the United States, and perhajis rarely in any of the state courts of equity in the Union. I take it to be clear that in the courts of the United States all decrees as well as judgments are matters of record, and are deemed to be enrolled as of the term in whieli theA'^are passed. So that the apj^'opriate remedy is by a bill of review. In regard to errors of law, apparent upon the face of the 350 EQUITY PLEADING. decree, the established doctrine is tlmt you cannot look into the evidence in the case in order to show the decree to be erroneous in its statement of the facts, ^riiat is the proper office of tlie court u[)on an ap})eal. But taking the facts to be as they are stated to be on the face of the decree, you must show that the court have erred in point of law. Mellish v. Williams, 1 Vern., 166 ; Cranborne v. Delahav, 2 Freem., 169 ; Combs v. Prowd, 1 Ch. Cas., 54; S. C, 2 Freem., 181 ; 3 Rep. Ch., 18; Hard., 174; Perry v. Plielips, 17 Ves., 173; O'Brien v. Conner, 2 B & Beatt., 146, 154. If, thereibre, the the decree do not contain a statement of the material facts on which the deciee proceeds, it is plain that there can be no relief by a bill of review, but only by an appeal to some superior ti-ibunal. It is on this account that in England decrees are usuall}' drawn up with a sj)ecial statement of, or reference to, the material grounds of fact for the decree. Combs V. Prowd, 1 Ch. Cas., 54 \ Brend v. Brend, 1 Vern., 214 ; S. C, 2 Ch. Cas., Kil ; Bonham v. Newcomb, 1 Vern., 216 ; O'Brien V. Conner, 2 B. & Beatt., 146, 154. In the courts of the United States the decrees are usually general. In England the decree embodies the substance of the bill, pleadings and answers ; in the courts of the United States the decree usually contains a mere reference to the antecedent proceedings with- out embodying them. But for the j)urpose of examining all errors of law, the bill, answers and other proceedings ai-e, in our practice, as much a part of the record before the court as the decree itself; for it is only by a comparison with the for- mer that the correctness of the latter can be ascertained. In regard to new matter there are several considerations deserving attention. In the first place the new matter must be relevant and material, and such as, if known, might prob- ably have produced a different determination. Beiuiett v. Lee, 2 Atk., 520 ; O'Brien v. Conner, 2 B. & Beatt., 155 ; Portsmouth v. Effingham, 1 Ves., 429. In other words, it must be new matter to prove what was before in issue, and not to prove a title not before in issue (Coop. Eq. PI., 91 ; Pat- terson V. Slaughter, Amb., 292 ; Young v. Keigl)ley, 16 Ves., 848; Blake u Foster, 2 B. & Beatt., 457, 462); not to make a new case, but to establish the old one. In the next place the new matter must have come to the knowledge of the party since the period in which it could have been used in the cause at the original hearing. Lord Bacon's ordinance says i)i:xTi;i; v. Aitxoi.D. ',]')! ill one i);irt it must ho " al'tci- tlic decivr ;" hut that seems cor- rected hv the suhseqvu'iit words, "and couhl not possihiy have been used at tlie tiuu' when the deerev' ]»assed," which |)oint to the period of })ul)licatioii. Lord Mai-twicke is rept»rte(l to have said that the words oC I>ord IJacon ai'c (hirk ; hut tliat the construction lias l)een that the lU'W matter nnist Iiave come to the knowh'de Neve, 3 Atk., 25, 34, and has lieeii con- stantly adhered to since. A qualiHcation of the rule ([uite as important and instructive is that the matter must not only be new, but that it must be such as that the party, by the use of reasonahle diligence, could not have known ; for if ihei'e be any laches or negligence in this respect that destroys the title to the relief. That doctrine was exj)Ounded and adhered to by Lord Eldon in Young v. Keighley, 1(5 Yes., 348, and was acted ui)on hv Lord Abinners in Barrington v. O'Brien, 2 B. & Beatt., 140, and Blake v Foster, 2 B. & Beatt., 457, 461. It was fully recognized by Mr. Chancellor Kent, and received the sanction of his high authority in Wiser v. Blachly, 2 .hihns. Ch.,488, and Bari'ow v. Jihinelander, 3 Johns. C'h., 120. .\nd in the very recent case of l>ingham v. Dawson, 3 Jac. ct Walk., 243, Lord Eldon infused into it additional vigor. L^pon another point, perhaps there is not a uniformity of opinion in the authorities. I allude to the distinction taken in an anonymous case in 2 Freeman, 31, where the chancellor said that, " where a matter of fact was particnlai'ly in issue before the former hearing, though you have nctv proof of that matter, upon that you shall never have a bill of review. I Jut where a vew fad is alleged that was not at a former liearing, there may he a ground lor a hill of review." Now, assuming that under certain circumstances new niattei- not evidence, that is, not in issue, in the original cause, hut clearly demon- strating error in the decree, may support a bill of review, if it is the only mode of obtaining relief (see Norris v. Le Neve, 3 Atk., 33, 35 ; Roberts v. Kingsley, 1 Ves., 238 ; Earl of Ports- mouth V. Lord Eflingham, 1 Ves., 429 ; liedesdale, E(|. PL, 67, etc. (last edition) ; 1 Montag. PL Eq., 332, 333 ; Wilson v. Webb, 2 Cox, 3; Standish v. Kadley, 2 Atk., 177. See al.-o, Lord Kedesdale's Observations in his third edition of his Equity Pleadings, p. 67), still it must be admitted that the general rule is that tht; new matter must be such as is I'ele- 352 EQUITY PLEADING. vant to the original case in issue. Lord Hardwicke, in Norris V. Le Neve, 3 Atk., 33, 35, is reported to have admitted that a bill of review might be founded upon new matter not at all in issue in the former cause, which seems contrary to his opinion in Patterson v. Slaughter, Amb., 293 (see also, Young v. Keighley, 16 A'es., 348, 354; Blake v. Foster, 2 B. & Beatt., 457, 462), or upon matter which was in issue, but discovered since the hearing. But the very point in 2 Freeman, 31, if I rightly understand it, is that a newly-discovered fact is ground for a bill ; but not newly-discovered evidence in proof of any fact already in issue. This seems to me at variance with Lord Bacon's ordinance, for it is said that there may be a review upon " new matter, which hath arisen in time after the decree," and, also, " upon new proof that has come to light after the decree made, and could not possibly have been used at the time when the decree passed." It is also contrary to what Lord Hardwicke held in the cases cited from 3 Atk., 33, and Amb., 293. Lord Eldon, in Young v. Keighley, 16 Ves., 348, 350, said : " The ground (of a bill of review) is error apparent on the face of the decree, or new evidence of a fact materially pressing upon the decree, and discovered at least after publi- cation in the cause. If the fact had been known l)efore publi- cation, though some contradiction appears in the cases, there is no authority that new evidence would not be sufiicient ground." That was also the opinion of Lord Manners in Blake v. Foster, 2 B. & Beatt, 457. Mr. Chancellor Kent, in Livingston v. Hubbs, 3 Johns. Ch., 124, adopted the like con- clusion ; and he seemed to think that such new evidence must not be a mere accumulation of witnesses to the same fact, but some stringent written evidence or newly-discovered papers. Gilbert, in his Forum Romanum, chapter 10, page 186, leans to the same limitation, for he says that in bills of review " they can examine to nothing that was in the original cause, unless it be matter happening subsequent which was not before in issue, or upon matter of record or writing not known before, for if the court should give them leave to enter into proofs upon the same points that were in issue, that would be under the same mischief as the examination of witnesses after publication, and an inlet into manifest perjury." See, also. Barton, Eq., 216 ; Tovers v. Young, Free. Ch., 193 ; Taylor v. Sharp, 3 P. Will., 371 ; Standish v. Radley, 2 Atk., 177 ; Chambers v. Greenhill, 2 Chan., 66 ; Thomas v. Harvie's DK\Ti:i; V. AKNdl.I). .).•).) Heirs, 10 \\ licat., 1 KJ. TIktc is niufli ^ood seu^c in such a distinction opei'ating- U{)on the discretion of the c'ouit in refus- ing a bill of revieu', and I shouhl be /i>lad to know that it has always i)een adhered to. It is certain that cumulative evi- dence has been admitted, and even written evidence, to contra- dict the testimony of a witness. That was the case of Attor- ney-General V. Turner, And).. 587. W'illan /'. W'illan, IG Ves., 72, 88, sui)poses that new testimony of witnesses may Ijo admissible. If it be admissible (upon which 1 an) not called to decide), it ought to be received with extreme caution, and only when it is of such nature as ought to be decisive proof. There is so much of just reasoning in the opinion of the court appeals of Kentucky on this subject that I should hesitate long before I should act against it. See Respass v. McClana- han, Hardin (Ky.), 342; Head v. Head, SMarsh. (Kv.), 121 ; Randolph v. Raiidoli)h, 1 H. tfe M., 180. In the next place it is most material to state that the grant- ing of such a bill of review is not a matter of right, but of sound discretion in the court. Sheffield v. Duchess of Ikick- ingham, 1 West., 082 ; Norris v. Le Neve, 3 Atk., 33 : Ciould V. Tancred, 2 Atk., 533. It may be refused, therefore, although the facts, if admitted, would change the decree where the court, looking to all the circumstances, deems it productive of mischief to iimiocent parties, or for any other cause unadvisable. Bennet v. Lee, 2 Atk., 528 ; Wilson v. Webb, 2 Cox, 3 ; and Young v. Keighley, 16 Ves., 348, are strong exemplifications of the principle. These are the principal considerations which appear to me useful to be brought into y\qw upon the present occasion. Let us now advert to the grounds upon which the petition is framed and sec how far an}' are ap[)licable to them. The original bill was brought against Thomas Arnold (whose administrator is now before the court), for an account and settlement of his brother Jonathan Arnold's estate, upon which he had administered. The case is reported in the third volume of Mr. Mason's Reports, page 284, and I refer to that for a summary of the proceedings and final decree. In |)referring tlie present petition the proper cour.se of pro- ceeding has been entirely mistaken. The present counsel for the {)etitioner is not responsible for those proceedings, they having taken place before he came into the cause. A petition for leave to file a bill of review for newly-discovered matters 23 354 EQUITY PLEADING. 'sliould contain in itself an abstract of the former proceedings, the bill, answers, decree, etc., and should then specihcully state what the newly-discovered matter is and when it first •came to the party's knowledge, and how it bears on the decree, that the court may see its relevancy and the pro})riety of allowing it. Cooi). Eq. PI., 92. The present petition, in its original form, contained nothing of this sort, but referred to an accompanying bill of review as the one which it asked leave to file, and then simply affirmed the facts stated in it to he true. This was sufficienth^ irregular. But ujjon looking into this bill of review the grounds of error are stated in a very loose manner, and in so general a form as to be quite in- .admissiblo. The first error assigned is in matter of law, and it is that Thomas Arnold, tlie administrator, ought to have been charged with interest upon all sums of money which he had received as administrator, because the said sums were used by him. The master, in his report, had declined to allow interest; and, upon an exception taken, the court confirmed his report on this point. I see no reason for changing the decree on this point, for the reasons stated in the cause in 3 Mason, 288, 290; and there is no pretense to say that there is any such ])roof of the use of the money in the report of the master as justifies a different conclusion. There is no error in this respect ap- parent on the face of the master's report or the decree. The allowance or disallowance of interest rests very much upon cir- cumstances, and slight errors in this respect are not always held fatal. See Gould v. Tancred, 2 Atk., 533. There is no error apparent, therefore, on which a review ought to be granted. The next ground assigned is that Thomas Arnold did receive large sums of money and other proj^erty, which he has not accounted for before the master, and for which he ought to account ; and that since the decree the petitioner hath discov- ered new and further evidence in relation thereto, which would have materially changed the report of the master and the decree. The petition does not state what the new evidence is, nor when discovered, and it is quite too vague for any order of the court. The bill then proceeds, very irregularly, to re- quire, that the administrator of Thomas Arnold should answer certain interrogatories as to the cargoes of the ship Friendship. It then states that Thomas Arnold received six shares in the Tennessee Land Company, and that he received DEXTKR V. AKNOLI). 3i)') $8,000 on a policy of insurance on the brig Fricndslii]), and that he received large consignments of property IVoin \' lucent Gray in Cuba in bills of exchange,' etc., belonging to Jona- than's estate ; and finally, that he received divers other large sums of money as agent of Jonathan. Now it must be mani- fest that upon allegations so general and distinct no bill of review would lie. Here is no assertion of newly-discovered evidence to maintain one. Such a bill, so framed, ought never to be allowed by a court acting upon the correct j)i'in- ciples of chancery jurisdiction. Afterwards an amendment of this bill to review was tiled, containing more distinct specifications of new matter, most of which, however, as I shall have occasion to notice hereafter, are open to the same objections as those already stated. But the radical objection to both bills is that they are im- properly introduced into the cause at all. A bill of review can only be filed after it is allowed by the court, and upon the very grounds allowed by the court. The prelim- inary application by petition to file it sliould state the new matter shortly, distinctly and exactly, so that the court may see how it presses on the original cause ; and it is not {)ermis- •sible to load it with charges and allegations as in an original seeking bill in equity. In the sense of a court of chanceiy there is not before this court any sufficient petition upon which it can act. But as the proceeding is a novelty in this circuit, much in- dulgence ought to be allowed to the original counsel in the cause (for the present counsel is not at all chargeable) for irregularities of this nature upon the first presentation of the practice. I advert to the posture of the cause, therefore, not so much with an intention to subject it to close criticism, as for the purj)Ose of declaring that, even if I could gather from the papers that there is matter upon which a bill of review would lie, it is not before the court in such a shape that the court could judicially ])ass an order of allowance. The case has, however, been argued, and with great ability, upon its merits; and waiving for the present any further reference to the form of the proceedings, 1 will proceed to the consideration of the points made at the bar. The first point is one made b}'' the defendant, and, being preliminary in its nature, must be disposed of before the plain- tiff can be further lieard. It is said to be a rule in e(|uity, 356 EQUITY PLEADING. that, where a party has less decreed to him than lie thinks himself entitled to, he cannot bring a bill of review ; for that lies only in favor of a party against whom there is a decree. For this is the opinion of elementar^^ writers (2 Madd. Pr., 412 ; 1 Harris. Pr., 86), and the case of Glover v. Partington, 2 Freem., 183; S. C, 2 Eq. Abrid., 174, is cited. The case, as here reported, certainly supports the doctrine. But it a])pear to me that, if the doctrine is correct, it is so only in cases where there is no error apparent on the face of the decree, and no newly- discovered matter to support a bill of review, for then the proper remedy is by appeal. If there is no such remedy by appeal, but only by bill of review, it w^ould be strange if a material error could not be redressed upon such a bill by the party to whom it had been injurious ; that if a man had §10,000 due him, and had a decree for $100, he was conclu- sively bound by an error of the court. The decision, reported in 2 Freeman, 182, was made by the master of the rolls, who allowed the demurrer ; but from the report of the same case in 1 Ch. Cas., 51, it appears that it was afterwards reheard before the Lord Chancellor and Baron Rainsford, and the demurrer was overruled. See S. C, cited Com. Dig., Chancery, G, to the same effect. So that the final decision was against the doctiine for which it is now cited. And Lord Nottingham, a few years afterwards, in Vandebende v. Levingston, 3 Swanst., 625, resolved that the [)laintiff may have a bill of review to review a decree made for himself, if it be less beneficial to him than in truth it ought to have been. We may then dis- miss this objection. We may now advance to the examination of the points made by the petitioner, in support of his petition for a review, assuming that the amended bill of review is to be received, pro hac vice, as such a petition. I have already stated that it is utterly defective in the essential ingredients of such a peti- tion, in not stating with exactness the nature of the new evi- dence, and when it was first discovered. It is not sutiicient to say that the petitioner expects to prove error in this or that respect ; or that he has discovered evidence which he hopes will establish this or that fact. But he must state the exact nature and form of the evidence itself, and when discovered. If written evidence, it must be stated, and its direct bearing sliown. If of witnesses, what facts the witnesses will prove, and when the party first knew the nature of their testimony. SCOTT V. IIOKK. of)? It is impossible otlicrwise for the coui-t to judiie wlicllirr t-vi- dcnce is decisive or is merely })rfbiimptive or cumuhitive; whether it goes vitally to the ease, {(ml disproves it, oi' only lets ill some new matter, contirmatory oi- explanatory of the transactions in the former decree. The party must go further, and establish that he could not, by reasonable diligence bel'ore the decree, have })r{)cured the evidence. Now, in eveiy one of these particulars, tlie amended bill, qnas! a jx-tition, is ex- tremely deficient. I have looked it over carefully, and can- not find that it points out a single written paper which di.s- proves the original case, or names a single witness whose tes- timony, if admitted, would overturn it. It deals altogether in general allegations that certain things are expected to be proved ; and, like an original bill, proceeds to ask a discovery from the defendant of letters and papers in her po.s.se.ssion as administrator, relative thereto. There are indeed, in the ac- companying afhdavits, some papers produced and relied on ; but they cannot supply the defects of the original petition. The remainder of the ca.se, being merely a discussion of facts, is omitted. Petition dismissed. SCOTT V. HOEE. (Circuit Court for Virginia : 1 Ilughes, I60-I68. 1875. ) Motion for rehearing on the ground of the negligence of defendant's counsel. Opinion by Hughks, J. I am to decide whether this motion foi- a rehearing of the cause can be granted, and whether the decree of this court, entered on the 9th of April, 1874, can be set aside on such motion. I think it is now settled law in Virginia, notwith- standing the remarks of the court in 9 Leigh, 289, on the case of Patterson v. Campbell, never reported, that a judgment or decree rendered by default cannot be opened on the ground of the negligence of counsel. In Hill v. ]>owyer, 18 Graft., o82-(), the court of appeals says : " A defendant upon whom ])rocess has been servesed since filing of the same." The rule refei-red to is: "If the ])laintiir sliall not reply to, or set for hearing any i)lea or demurrer before the second term of the court after tiling the same, the \n\\ may be dis- missed, with costs." No })lea had been filed in the case, and the denmrrer filed had been overruled, so tiiat the rule did not apply to the case as it .stood at the time of the dismissal. The mle can only ai)i)ly to deinun\'i's and pleas technically .so called. And tliere is no oIIum- rule of proceeding which authorized the deci'ee of the couit. The comi»lainant may, if (^(), remainin*;- (hu- upon the contract) as he (Thomas) miii lor the removal must be made on entering the aj)pearance in the state court ; antl when the defendants arc numci'ous they may in suits, both at hiw and in equity, be brought into the state court at different times ; and that court cannot cause the ap- pearance then to be entered )iunc pro tunc, so as to entertain the motion to remove the caitse after all the defendants are brought into court. Gibson v. Johnson, 1 Pet., 44. But if all the defendants should not petition to have the cause re- moved into this court, so as to enable it to proceed, the cause may be remanded to the state court, so as to give it pos- session of the whole case. 4 Cranch, 421. An original ap- pearance of some of the defendants cannot be entered in this court. The cause having been regularly commenced in the state court cannot be removed therefrom except in the mode prescribed by the act of congress ; the appearance must first be entered in the state court, and the security then given to enter the appearance in this court ; and then the state court is prohibited from proceeding any further in the cause. But until then it may proceed, and the effect might be in some cases that proceedings would be going on at the same time, in the same cause, in both courts. And this court is not author- ized to take cognizance of the cause, unless removed in the manner pointed out by the act. 24 CHAPTER XV. ENFORCEMENT OF PROCESS AND DECREE AUXILIARY PRO- CEEDINGS. Rule 8. Final process to execute any decree may, if tlie decree be solely for the payment of money, be by a writ of execution, in the form used in the circuit court in suits at common law in actions of assumpsit. If the decree be for the performance of any specific act, as, for example, for the execution of a con- veyance of land or the delivering up of deeds or other docu- ments, the decree shall, in all cases, prescribe the time within wliich the act shall be done, of which the defendant shall be bound, without further service, to take notice ; and upon affi- davit of the plaintiff, filed in the clerk's office, that the same has not been complied with within the prescribed time, the clerk sliall issue a writ of attachment against the delinquent party, from which, if attached thereon, he shall not be dis- charged, unless upon a full compliance with the decree and the payment of all costs, or upon a special order of the court, or of a judge thereof, upon motion and affidavit, enhirging the time for the performance thereof. If the delinquent party can not be found, a writ of sequestration sliall issue against his estate upon the return of no7i est inventus, to com- pel obedience to the decree. Rule 10. Every person, not being a party in any cause, who has ob- tained an order, or in whose favor an order shall have been made, shall be enabled to enforce obedience to such order by the same process as if he were a party to the cause ; and every (370) EQUITY PLEADING. 371 person, not being a party in any cause, against whom obe- dience to any order of the court may be enforced, shall be liable to the same process for enforcing obedience to such orders as if he were a party in the cause. Bide 89. The circuit courts (a majority of all the judges thereof, in- cluding the justice of the Suj)r(Mne Court, the circuit judges, and the district judge for the district, concurring therein) may make any other and fuither rules and regulations for the practice, proceedings, and j)rocess, mesne and tinal, in their respective districts, not inconsistent with the rules hereby pre- scribed, in their discretion, and from time to time alter and amend the same. Bulc f). When any decree or order is for the delivery or possession, upon proof made by aflidavit of a demand and refusal to obey the decree or order, the party prosecuting the same shall be entitled to a writ of assistance fiom the clerk of the court. Mule 81. No demurrer or plea shall he allowed to be filed to any bill, unless uj)on a certificate of counsel, that in his opinion it is well ibunded in point of law, and supported by the affidavit of the defendant; that it is not interposed for delay ; and, if a pica, that it is true in point of fact. EQUITY PRACTICE IS ALSO AFFECTED BY THE FOLLOWING GENERAL RULES OF PRACTICE OF THE SUPREME COURT; Mule 3. ENGLISH PRECEDENTS. This court consider the practice of the Court of the King's (Queen's) Bench and of Chancery, in England, as affording outhnes for the practice of this court ; and they will, from time to time, make such alterations therein as circumstances may render necessary. Rule 5. PROCESS. (1.) Style. All process in this court shall be in the name of the Presi- dent of the United States. (2.) Service on State. When process at common law or in equity shall issue against a state, the same shall be served on the governor, or chief ex- ecutive magistrate, and attorney-general of such state. (3.) When Served. Process of subpoena issuing out of the court in any suit in equity, shall be served on the defendant sixty days before the (372) EQUITY PLEADING. 373 return day of said process; and if the defendant, on such service of the subj^ooia, shall not api)earat the return day con- tained therein, the comj-jlainant phall be at liberty to proceed ex parte. linle 12. EVIDENCE. In all cases where furtlier jtroof is ordered by the court, the depositions which shall be taken shall be by a commission to be issued from the court, or from any Circuit Court of the United States. Rule l.i. OBJECTION TO EVIDENCE. In all cases of equity and admiralty jurisdiction heard in this court, no objection shall hereafter be allowed to be taken to the admissibility of any deposition, deed, grant or other exhibit found in the record, as evidence, unless objection was taken thereto in the court below, and entered of record ; but the same shall otherwise be deemed to have been admitted by consent. ADDENDA. iiircmc Court of tlje llniicb ^tatfs. October Term, 1900. It is ordered by the Court, That Section 1 of Rule 5 of this court be, and the same is hereby, amended so as to read as follows : 1. All processes of this court shall be in the name of the President of the United States, and shall contain the Christian names, as well as the surnames, of the parties. (Promulgated December 17, 1900.) It is ordered by the Court, That the first sentence of Rule 12 of the Rules of Practice in Equity be, and the same is hereby, amended so as to read as follows : Whenever a bill is filed, the clerk shall issue the process of subpoena thereon, as of course, upon the application of the plaintiff, which shall contain the Christian names as well as the surnames of the parties, and shall be returnable into the clerk's office the next rule day, or the next rule day but one, at the election of the plaintiff, occurring after twenty days from the time of the issuing thereof. (Promulgated December 17, 1900.) (374) APPENDIX. ORDIl^ANCEH MADE BY THE LORD CHANCELLOK BACON. '> For the better and more regular administration of justice in the Chancerv, to be daily observed, saving the prerogative of the court. 1. Bill of Review. No decree shall be reversed, altered, or ex})lained, being once under the gi'eal seal, but upon bill of review ; and no bill of review shall be admitted except it contain either error in law, appearing in the body of the decree, without further examination of matters in fact, or some new matter which hath risen in time after the decree, and not any new proof which miglit liave been used when the decree was made : nevertheless, upon new proof, that is come to light after the decree made, and could not possibly have been used at the time when the decree passed, a bill of review may be grounded by the special license of the court, and not otherwise. 2. Clerical Error. In case of miscasting, being a matter demonstrative, a de- cree may be explained, and reconciled by an order, without a bill of review ; not understanding by miscasting, any pre- tended misrating or misvaluing, but only error in the audit- ing or numbering. 3. Decree to he Performed. No bill of review shall be admitted, or au}^ other new bill, to change matter decreed, except the decree be first obeyed and performed : as, if it be for land, that the possession be (377) Olb EQUITY I'LKADING. yielded ; if it be for money, that the money be i)aid ; if it be for evidence, that tlie evidences be bi'onglit in; and so in other cases whicli stand upon the strength of the decree alone. 4. Big Jit Saved. But if any act be decreed to be done which extinguisheth the parties' right at the common law, as making of assurance or release, acknowledging satislaction, cancelling of bonds or evidences, and the like, tliose |)arts of the decree are to be spared until the bill of review be determined ; but such spar- ing is to be warranted by public order made in court. 5. Surefjj. No bill of review sliall be put in, except the party that pre- fers it enters into recognizance with sureties for satisfying of costs and damages for the delay, if it be found against him. 0. Statute, Chanr/c of Construction. No decrees shall be made, upon pretense of equity, against the express provision of an act of Parliament ; nevertheless, if the construction of such act of Parliament hath for a time gone one way in general opinion and reputation, and after, by a later judgment, hath been controlled, then relief may be given upon matter of equity, for cases arising before the said judgment, because the subject was in no default. 7. Contempt — Strait Custodij. Imprisonment for breach of a decree is in nature of an exe- cution, and therefore the custody ought to be strait, and the party not to have any liberty to go abroad, but by special license of the Lord Chancellor; but no close imprisonment is to be, but by express order for willful and extraordinary con- tempts and disobedience, as hath been used. 8. Penalties. In case of enormous and obstinate disobedience in breach of a decree, an injunction is to be granted " subpcena" of a ORDIXAN'CKS. o70 sum ; niul ii]>on aflidavit, or other snfiicient |)roof, or persist- ing in conteiii})t, fines arc to be pi'onounccd l)y tlie Lord Chancellor in open court, and the same to be estreated down into the hana})er, if cause be by a special order. 9. Process for Lands. In case of a decree made for the possession of land, a writ of execution goes forth : and if that be disobeyed, then process of contem[)t according to the coui'se of the court against the person, unto a commission of rebellion ; and then a sergeant- at-arms b}' special warrant ; and in case the sergeant-at-arms can not find him, or be resisted; or upon the coming in of the party, and his commitment, if he persist in disobedience, an injunction is to be granted for the possession ; and in case that also be disobeyed, then a commission to the sheriff to })ut him into possession. 10. Contemner Enlarged. Where a party is committed for the breach of a decree, he is not to be enlarged until the decree be fully performed in all things which are to be done presentl}'. But if there be other parts of the decree to be performed at days, at times to come, then he may be enlarged b}^ order of the court upon recogni- zance, with sureties to be put in for the performance thereof *' f/e/M^wro," otherwise not. 11. Decree, Binds Whom. Where causes come to a hearing in court, no decree bindeth any person who was not served with process "ac? avdieiidi(m judicium,'^ according to the covirse of the court, or did appear "gratis,'^ in person in the court. 12. Privies. No decree bindeth any that cometh in " bona fide,'' by con- veyance from the defendant before the bill exhibited, and is made no party, neither by bill nor the order ; but where he comes in " j)endente liie," and while the suit is in full prose- 380 J<:(iUITY PLEADING. cutioii, and without any color of allowance or privity of the court, there regularly the decree bindeth ; but if there were any iutermission of suit, or the court made acquainted with the conveyance, the court is to give order upon the special matter according to justice. 13. lies Judicata. Where causes are dismissed upon full hearing, and the dis- mission signed by the Lord Chancellor, such causes shall not be retained again, nor new bill exhibited, except it be upon new matter, like to the case of the bill of review. 14. Former Judgment. In case of all other dismissions, which are not upon hearing of the cause, if any new bill be brought, the dismis- sion is to be pleaded, and after reference and rei:)ort of the contents of both suits, and consideration taken of the former orders and dismission, the court shall rule the retaining and dismissing of the new bill, according to justice and nature of the case. 15. Suits on Void Contracts. All suits grounded upon wills nuncupative, leases parol, or upon long leases that tend to the defeating of the king's ten- ures, or for the establishment of perpetuities, or grounded upon remainders put into the crown to defeat purchasers; or for brokage or rewards to make marriages ; or for bargains at play or wages ; or for bargains for offices contrary to the statute of 5 and 6 Ed. VI., or for contracts upon usury or simony, are regularly to be dismissed upon motion, if they be the sole effect of the bill ; and if there be no special circumstances to move the court to allow their proceedings, and all suits under the value of ten pounds are regularly to be dismissed. V. postea, sees, 58, GO. 10. Dismissions. Dismissions are properly to be prayed, and had either upon the hearing or upon j^lea unto the bill, when the cause comes OKDINAXC'KS. 381 first ill court ; but dismissions are not to he pi-ayed alU-r tl»e parties have been at cliarge of examination, excejjt it be u})on special cause. 17. Dlsrotifliiiiaiicr. Jf tlie plaintiff di-scontinue the prosecution, after all the defendants have answered, above the space of one whole term, the cause is to be dismissed of course without any motion ; but after replication j)ut in no cause is to be dismissed without motion and order of tlie court. 18. Election. Double vexation is not to be admitted ; but if the party sue for the same cause at the common law and in chancery, he is to have a day given to make his election where he will proceed, and in default of making- such election to be dis- missed. 19. Certiorari. Where causes are removed by special " certiorari,^' upon a bill containing a matter of equity, the plaintiff is, upon receipt of his writ, to put in bond to prove his suggestions within fourteen days after the receipt ; which, if he does not prove, then upon certificate from either of the examiners, presented to the Lord Chancellor, the cause shall be dismis.sed with costs, and a "procedendo" to be granted. 20. No Injunction. E.c Parte. No injunction of an}' nature shall be granted, revived, dis- solved or stayed u|)on any private petition. 21. Injunction to Stay Action. No injunction to .stay suits at common law shall l)e granted upon priority of suit only, or upon surmise of the ])laintilf' s bill only ; but u])on matter confes.sed in the defendant's answer, or matter of record, or writing ])lainly appearing, or when the defendant is in contempt for not answering, or that the debt 382 EQUITY PLEADING. desired to be stayed appeareth to be old, and hath slept long, or the creditor or the debtor hath been dead some good time before the suit brought. 22. Temporary Injunction. Where the defendant appears not, but sits an attachment ; or when he doth appear and departs without answer, and is under attachment for not answering; or when he takes oath he can not answer without sight of evidences within the country ; or where, after answer, he sues at common law by attorney, and absents himself beyond seas ; in these cases an injunction is to be granted for the stay of all suits at common law until the party answer or appear in person in court, and the court give further order; but, nevertheless, upon answer put in, if there be no motion made the same term, or the next general seal after the term, to continue the injunction in regard of the insufficiency of the answer put in, or in regard of matter confessed in the answer, then the injunction to die and dis- solve without any special order. 23. Stay in Lieu of Injunction. In the case aforesaid, where an injunction is to be awarded for stay of suits at the common law, if like suits bo in the chancery, either by '' scire facias,'^ or privilege, or English bill, then the suit is to be stayed by order of the court, as it is in other courts by injunction, for that the court cannot enjoin itself. 24. Delay Dissolves. Where an injunction hath been obtained for staying of suits, and no prosecution is had for the space of three terms, the in- junction is to fall of itself without further motion. 25. Injunction After Arrest. Where a bill comes in after an arrest at the common law for debt, no injunction sliall be granted without Iji'inging the principal money into court, except there appear in tlie defend- oltDINANCKS. 383 ant's niLSWcr, or by siolit oi' wriliiius, jilaiii ninttcr lcn ])rollts of land, there a sequestration of the same lands, being in the delendant's hands, may be granted. 384 EQUITY PLEADING. 31. Ancillary Bill. Where the decrees of the provincial council, or of the court of requests, or the Queen's Court, are by contumacy of other means interrupted, there the Court of Chancery, upon a bill preferred for corroborations, of tlie same jurisdictions, decrees, and sentences shall give remedy. 32. Evidence, Order of. Where any cause comes to a hearing, that hath been formerly decreed in any other of the King's Courts at Westminster, such decree shall be first read, and then to proceed to the rest of the evidence on both sides. 33. Suits After Judgment. Suits after judgment may be admitted aocording to the an- cient custom of the chancery, and the late royal decision of his majesty, of record, after solemn and great deliberation; but in such suits it is ordered, that bond be put in with good sureties to prove the suggestions of the bill. 34. Same, Decree in. Decrees upon suits brought after judgment shall contain no words to make void or weaken the judgment, but shall only correct the corrupt conscience of the party, and rule him to make restitution, or perform other acts, according to the equity of the cause. 35. Megisters. The registers are to be sworn, as has been lately ordered. 36. Former Orders to be Shown by. If any order shall be made, and the court not informed of the last material order formerly made, no benefit shall be taken by such order, as granted by abuse and surrcption, and to that end the registers ought duly to mention the former order in the latter. ORDINANCES, 385 37. ()r(h ra to Ir Kniercd hi/. No order shall bcM'Xj.laiiKd u})oii any [nivalc pctitidii l»ut ill court as they are made, and the re»;islor is to set down the orders as they are pronounced by the court, truly at his peril without troubling the Lord Chancellor by any private attend- ing of him, to ex})lain his meaning; and il" any exjilanation be desired, it is to be done by public motion, where the other party may be heard. 38. Orders, Copy of. No draught of any order shall be delivered by the register to either party, without keeping a copy by him, to the end that if the order be not entered, nevertheless the court may be in- formed what was formerly done, and not put to new trouble and hearing ; and to the end also that knowledge of orders be not kept back too long from either party, but may presently appear at the office. 3 P. Order of Reference. Where a cause hath been debated upon hearing of both parties, and opinion liath been delivered by tlie court, and, nevertheless, the cause referred to treaty, the registers are not to admit the opinion of the court, in drawing of the order of reference, except the court doth especially declare that it be entered without any opinion either way; in which case, never- theless, the registers are out of their short note to draw up some more full remembrance of that passed in court, to inform the court if the cause come back and cannot be agreed. 40. Suggestions of Counsel. The registers, upon sending of their draught unto the coun- sel of the parties, are not to respect the interlineations or al- terations of the said counsel, be the said counsel ever so great, farther than to put them in remembrance of that wliich was truly delivered in court, and so to conceive the order upon their oath and duty, without any further res[)ect. 25 386 EQUITY PLEADING. 41. Decrees to be Read. The registers are to be careful in the penning and drawing up of decrees, and of special matters of difHculty and weight; and, therefore, when they present the same to the Lord Chan- cellor, they ought to give him understanding which are such decrees of weight, that they may be read and reviewed before his lordship sign them. 42. Decrees at Rolls. The decrees granted at the rolls are to be presented to his lordship, with the orders whereupon they are drawn within two or three days after every term. 43. Order for Injunction. Injunctions for possession or for stay of suits after verdict, are to be presented to his lordship, together with the orders whereupon they go forth, that his lordship may take consider- ation of the order before he sign them. 44. Order Against Rules. Where any order upon the special nature of the case shall be made against any of these general rules, there the register shall plainly and expressly set down the particulars, reasons and grounds moving the court to vary from the general use. 45. Chancellor to Rule on Jurisdiction. No reference upon demurrer or question touching the juris- diction of the court shall be made to the masters of the chan- cery ; but such demurrers shall be heard and ruled in court, or by the Lord Chancellor himself. 46. Report, Time to Object to. No order shall be made for the confirming or ratifying of any report without day first given, by the space of a seven- ight at the least, to speak to it in court. 01{DIXAXCES. 387 47. N'o Rejercnve After ExamiiKillmi. No reference shall be made to any masters of the court, or any other commissioners, to hear and determine, where tljo cause is gone so far as to examination of witnesses, except it be in special causes of parties near in blood, or of extreme poverty, or by consent and general rcrcreiicu ol" the cause, ex- "cept it be by consent of the parties to be sparingly nranted. 48. Report, Beyond Order. No report shall be respected in court which exceedeth the warrant of the order of reference. 49. blaster, Duty of. The masters of the court are required not to certify the state of any cause, as if they would make breviate of the evi- dence on both sides, which doth little ease the court, but with some opinion ; or, otherwise, in case they think it too doubt- ful to give opinion, and therefore make such special certificate, the cause is to go on to a judicial hearing without respect had to the same. 50. Account — Reference — Directions. Matters of account, unless it be in very weighty causes, are not fit for the court, but to be pre])ared by reference, with this difference, nevertheless, that the cause comes first to a heariiig ; and upon the entrance into a hearing, they may receive some direction, and be turned over to have the accounts considered, except both parties, before a hearing, do consent to a reference of the examination of the accounts, to make it more ready for a hearing. 51. Court-Rolls — Same. The like course to be taken for the examination of court- rolls upon customs an<3 copies, which shall not be referred to any one master, but to two masters at tlie least. 388 EQUITY PLEADING. 52. Ansiver, Exception to. No reference to be made of the insufficiency of an answer without showing of some particular point of tlie defect, and not upon surmise of the insufficiency in general. 53. Same, Trust Confessed. Where a trust is confessed by the defendant's answer, there- needeth no further hearing of the cause, but a reference presently to be made upon the account, and so to go on to hearing of the accounts. 54. Costs on Frivolous Suit. In all suits where it shall appear, upon the hearing of the cause, that the plaintiff had not " probabilem causam litigandi," he shall [)ay unto the defendant his utmost costs, to be assessed by the court. 55. Fine for Prolix Pleading. If any bill, answer, replication, or rejoinder shall be found of an immoderate length, both the party and the counsel under whose hand it passeth shall be fined. 56. Scandal and Impertinence. If there be contained in any bill, answer or other pleadings, or interrogatory, any matter libellous or slanderous against any that is not a party \o tlie suit, or against such as are parties to the suit, upon matters impertinent, or in derogation of the settled authorities of any of his majesty's court, such bills, answers, pleadings or interrogatories, shall be taken off the file and suppressed, and the parties severally punished by commitment or ignominy as shall be thought fit for the abuse of the court ; and the counselors at law, who have set their hands, shall likewise receive reproof or punishment if cause be. 57. Demurrers and Pleas, Heard When. Demurrers and pleas which tend to discharge the suit shall be heard first upon every day of orders, that the subject may know whether he shall need further attendance or no. OIJ 1)1 NANCES. 389 58. >Sa Die — DcJiiiKion . A demurrer is i)roper]y upnii iiiadei' defective, contained in the bill itself, and no foreign matter ; but a }»lea is of ibreign matter to discharge or stay the suit, as that the cause hath been formerly dismissed, or that the iilaintilf is outlawed, or excommunicated ; or there is another bill depending tor the same cause, or tlie like ; and such plea may be put in without oath, in case where the matter of the plea ai)})ear upon record ; but if it be anything that does not a}»j)ear upim record the plea must be upon oath. 59. Certain Fleas. No plea of outlawry shall be allowed without i)leading the record "sub pcde sigiUi;" nor plea of excommunication, without the seal of the ordinary. 60. Demurrer to Suit^i on Void Contracts. Where any suit appeareth upon the bill to be of tlie natures which are regularly to be dismissed according to the fifteenth ordinance, such matter is to be set forth by wa}' of demurrer 61. Ansiver Insufficient, Costs on. Where an answer shall be certified insufficient, the defend- ant is to pay costs ; and if a second answer be returned insuf- ficient, in the points before certified insufficient, then double costs, and u})on the third, treble costs, and upon the fourth. quadru})le costs, and then to be committed also until lie hath made a perfect answer, and to be examined upon interroga- tories touching the points defective in his answer; but if any answer be certified sufficient, the plaiiitilf is to })ay costs. 62. Same — Waiver of. No insufficient answer can be taken hold of after replication I)ut in, because it is admitted sufiicient by the replication. 390 EQUITY PLEADING. 63. Denials i)i Ansivc7\ An answer to a matter charged as the defendant's ow,n fact must be direct, without saying it is to his remembrance, or as he beheveth, if it be laid down within seven years before ; and if the defendant deny the fact, he must traverse it directl}'^, and not by way of negative pregnant ; as if a fact be laid to be done with divers circumstances, the defendant may not traverse it literally as it is laid in the bill, but must traverse the point of substance ; so if he be charged Avith the recei})t of one hundred pounds, he must traverse that he hath not received a hundred pounds, or any part thereof; and if he have received part, he must set forth what part. 64. Hearing on Bill and Ansiuer. If a hearing be prayed upon bill and answer, the answer must be admitted to be true in all points, and a decree ought not to be made, but upon hearing the answer read in court. 65. No Counsel — Answer Read. AVhere no counsel appears for the defendant at the hearing, and the process appears to have been served, the answer of such defendant is to be read in court. Q(^. Replication. No new matter is to be contained in any replication, except it be to avoid matter set forth in the defendant's answer. 67. Copies. All copies in chancery shall contain fifteen lines in every sheet thereof, written orderly and unwastefully, unto which shall be subscribed the name of the principal clerk of the of- fice where it is written, or his deputy for whom he will answer, for which only subscription no fee at all shall be taken. 6 8 . Commission s — Dep ositions. All commissions for examinations of witnesses shall be "super interr. inclusis" only, and no return of depositions into ORDINANCES. .' '• ' 1 the court shall be received but such only as shall be either compromised in one roll subscribed with the name of tho commissioners, or else in divers roll.<<, whereof each one shall be so subscribed. 60. Same — Joiuder in. If both parties join in commission, and upon warning given the defendant bring his commissioners, but produceth no wit- nesses, nor ministerelh interrogatories, but after seek a new commission, the same shall not be granted ; but, nevertheless, upon some extraordinary excuse of the defendant's default, he ma}'^ have liberty granted by s})ecial order to examine his wit- nesses in court upon the former interrogatories, giving the plaintiff' or his attorney notice that he may examine also if he will. 70. Examination of Defendant. The defendant is not to be examined upon interrogatories, except it be in very special cases, by express order of the court, to sift out some fraud or practice pregnantl}'' appearing to the court, or otherwise upon offer of the plaintiff to be concluded by the answer of the defendant without any liberty to dis- prove such answer, or to impeach him after a perjury. 71. Record of Other Causes. Decrees in other courts may be read upon hearing without the warrant of any special order ; but no depositions taken in any other court are to be read but by special order ; and regu- larly the court granteth no order for reading of depositions, except it be between the same parties, and upon the same title and cause of suit. 72. hnpcaehing M'iinesx. No examination is to be had of the credit of any witness but by special ordei", which is sparingly to be granted. 302 EQUITY PLEADING. 73. Evidence in Perpetuam. Witnesses shall not be examined " in perpetuam rei mcmor- iam," except it be on the ground of a bill first put in, an answer thereunto made, and the defendant or his attorney made ac- quainted with the names of the witnesses that the plaintiff would have examined, and so publication to be of such wit- nesses ; and this restraint nevei'theless that no benefit shall be taken of the depositions of such witnesses, in case they may be brought "viva voce" upon the trial, but only to be used in case of death before the trial, or age, or impotency, or absence out of the realm at the trial. 74. No Testimony After Publication. No witnesses shall be examined after publication, except it be by consent or by special order, " ad informandum con- scientiam judiciis," and then to be brought close sealed, up to the court to peruse or publish, as the court shall think good. 7~). Afjidavit not Evidence. No affidavit shall be taken or admitted by any master of the chancery tending to the i)roof or disproof of the title or matter in question, or touching the merits of the cause ; neither shall any such matter be colorably inserted in any affidavit for serving of process. 76. Coimter Affidavit. No affidavit shall be taken against affidavit, as far as the masters of chancer}^ can have knowledge ; and if any such be taken, the latter affidavit shall not be used nor read in court. 77. Contempts^ Proceeding in. In case of contcm])t grounded u})on force or ill words upon serving of process, or upon words of scandal of the court ] proved by affidavit, the party is forthwith to stand committed ; but , for other contempts against the orders or decrees of the court, an ailachmont goes forth : first ujion an affidavit made, OKDINANCKS. 393 and then the party is to be exaiiiiiicd u[m)1i iiitrri'<» 143-141 as to contents of provisions as to answer of dnfendant where complainant waives answer under oath . . to certain interrogatories in bill effect of defendant declining to answer inter- rogatories provisions as to supi)lemental ... ■ ■ before whom verified how and when amended general i)rovision as to excei)tions to Gl-(i5 177 time for tiling exceptions to . (d 177 l)rovisions for costs where separate answers are tiled by same solicitor ()2 177 hearing exceptions to answer for insutliciency . 03 178 ( 399 ) 52 144 60 274 1 14 25 -\C> 143-141 --10 143-141 40 40 44 46 50 60 274 93 361 ]7 140 7 lOG 8 370 54 78 82 207 1 14 400 EQUITY PLEADING. Rule. Page. Answers, proceedings wlien exceptions to answer are al- lowed on hearing 64 179 proceedings when exceptions to answer are overruled 65 177 wliere answer to original bill shall be made be- fore original plaintiff can be compelled to answer cross bill 72 334 Appeals, provisions as to suspending or modifying injunc- tions duting the pendenc}' of an appeal Appearance, when defendant must appear Argument. (Sfe Hearing.) Attachment, provisions as to writ of attachment after final decree . . . when writ of attachment to issue to compel defendant to make a better answer to the matter of exceptions by master for his compensation Bills, filing of when bills may be taken pro confesso against the de- fendant, and proceeding thereon 18 133 decree may be entered when bill is taken pro coiifcsso general frame of 20-25 commencement and ending of provisions as to contents of respecting necessary or proper parties . . . prayer in how signed by counsel taxable costs for several provisions as to scandal and impertinence in 26-27 general provisions as to amendment to 28-30 provisions as to interrogatories in the interrogating part of 41-43 145-56 amendment of, by leave of court when matter alleged in answer makes amendment necessary . 45 176 general provisions as to parties to 47-53 179-144 nominal parties to ... . 54 78 brongiit by stockholders in a corporation against the corporation and other parties; how verified, and what allegations must be contained therein . 94 56 ]5ills of revivor, general provisions as to same 06-08 275- contents of 58 275 Certificate of counsel to accompany demurrers and pleas 31 371 19 133 -25 55-142 20 55 21 55 22 56 23 58 23 58 25 142 -27 142 ■30 273 274 Hiilc. rnjrp. 1 U 89 :571 •) U 4 1.) 5 ].> o 14 07 201 7S 2(M} 1 U G7 201 INDKX TO EQUITY KILKS. 401 Circuit courts alAvnys to be open for certiiiii purposes provisions as to tlie makiiiu: ol' rules liy judges tiiereof Clerk, duties of same to enter motions, rules, orders, etc., in order book certain motions and applications .urantable of course by clerk Clerk's otlice, provisions as to same Commissioners for taking testimony, how to be named . bow witnesses may be compelled to apjiear before them and testify Commissions, issuing and return of when and how to Issue . . provisions as to publication and opening same in clerk's office. G9 204 Corporations, bills brought by stockholders in a corpora- tion against the corporation and other parties, how veri- fied and what allegations must be contained therein . 94 56 Costs, where separate answers are tiled and the same .solic- itor is employed for two or more del'endants . . 62 17 7 provisions for payment of, when exceptions for frivolous causes or delay are filed to master's report 84 200 Counsel, signature of, to be affixed to bill, provisions as to same Cross bill, provisions as to same Death, iiow suits niav be revived on death of eitiier party Delieneesse examination, when and how same may betaken Decree, provisions as to entry of decree when bill is fjvo con/esso against the defendant 18-19 !.".:$ for an account of the personal estate of a testator or intestate on reference to master, etc ... corrections of clerical mi.stakes in contents of • • what the decree in a suit for foreclosure of a mortgage may provide for Default of defendant, jjroceedings tiiat may be taken thereon when decree may be entered and bill taken pro coiifesso Defendant, when he must appear ... .... bills may be taken pro coji/csso against defendant, and jjrocecdings thereon . decree may beentered and bill taken ])ro confesso against the del'cndant . . . 26 24 55) 72 :j:j4 5(> 27.J 70 204 73 289 85 290 86 289 92 289 18 i:]:i 19 133 17 140 18 133 19 133 31 371 32 143 33 170 402 EQUITY PLEADING. Rule. Page. Demurrers, SPiieral provisions as to 31-38 371-146/ to be acconipjiuied by certificate of counsel, etc., ]irovi.si()iis respecting t to wluit defendant may den)ur proceedings by plaintiff on demurrer .... provisions as to case wliere demurrer is over- ruled 34 177 provisions as to case where demurrer is al- lowed 35 177 where demurrer will not be overruled . . . 36-37 145-146 -effect of not setting down demurrer for aj'gu- ment at certain time £8 14C time wlien demurrer is to be set down for argument 38 146 Depositions, how taken when evidence is to be taken orally 67 201 testimony is to be taken by deposition according to act of Congress ... 68 204 provisions as to publication and opiening of same in clerk's office 69 204 Discovery, provision as to the filing of a cross bill for . . 72 334 Dismissal, Miien bill shall be dismissed 38 i4S / ?^ court may dismiss a bill where plaintiff pro- ceeds to a liearing, notwithstanding objec- tion for want of i)arties, taken by answer 55 144 of suit for failure to file replication '. . 66 175) Evidence, how taken down before master in certain cases. 81 207 Examinatitm, how to take and return depositions of wit- nesses examined orally 67 201 Examiner, how witnesses may be compelled to appear before him and testify 78 200 Exceptions, piovisjons as to exceptions to bills for scan- . dal and impertinence 26-27 142 hearing exceptions to-answer for insufficiency -63 178 proceedings when exceptions to answers are allowed on hearing ... 64 179 "to report of master, time of filing excei)tions thereto, and confirmation of report if no exceptions are filed .... 83 209 provisions to prevent the filing of exceptions to reports f(jr frivolous causes or delay Execution, writ of, provision as to same ....... Piling of pleadings, etc .... Foreclosure, what the decree in a suit for foreclosure of a mortgage may lu'ovide for Guardians «tZ Z(7f»i, how appointed 84 209 8 370 7 100 92 2^9 87 78 INDEX TO KC^ITY RILES. 4Uu Rule. I'lifie. Ileaiiiif?, case wlien dcieiulant, by answer, suggests tliat bill is defective for want of parlies 5-' 144 proceedings for. hearing where exceptions are filed to answer G3 IIH of reference before master, when to be brought on 74 2(>.'> Impertinence in bills not permitted; will be struck out on exception 12(1 142 general provisions as to eliminatiuu of im- pertinence in bills i!(>-li7 142 Infants, how they may sue 87 78 Injunctions, provisions as to the granting of injunctions when asked for by bill to stay proceedings at law . 55 207 susi)ending or amending injunctions during the pendency of an appeal . Interrogatories, provisions as to the interrogating part of bills 41- form of last of the written interrogatories to take testimony ... Issue, suit v.hen deemed at issue Judges, provisions as to granting orders, etc., by judges of circuit court in vacation and term Marshal, provisions as to service of process by Master, general ])rovisions as to reference to and proceed- ings before them 73- reference to, if any decree for account of personal estate of a testator or intestate . when to be brought on f(;r hearing proceedings on reference before what report of master, on reference before him shall contain pow'er of same on reference ... how witnesses may be compelled to appear before him and testify on reference 78 2<)(> form in which accounts shall be produced before him what paper may be used before him on a reference persons whom master is at liberty to examine on reference in chancery, how' appointed provisions as to the filing of master's report and the filing of exceptions thereto Mistakes in decree, etc., how corrected 9;; 361 43 U5-o(; 71 2(>:J UG 175) 3 U 15 107 -82 28t) 207 73 2s«> 74 20.> 75 205 7() 2(K> 77 LOG 79 207 80 207 81 207 82 207 S3 205) 85 200 404 EQUITY PLEADING. Rule. Motions, when tliey may be made in courts of equity . 1 14 Avhat are to be deemed motions and applications g'rantable of course ■ 5 15 \Yliatare not grantable of course, how and wlien heard 6 16 Notice, provisions for notice of application for certain orders what to be deemed notice in certain cases to be given for examination of witnesses .... provisions as to notice for de hene esse examina tion of witnesses Oath {See Aflfirmalion) Orders, when tliey may be made in courts of equity . . Parties, court n)ay make a decree saving riglitsof absent parlies at trial where defendant suggests a defect .... provisions as to nominal parties to bill .... to bills, wlien court may proceed witliout u)ak- ing certain persons iiarties parties may be dispensed with when very numerous, etc . . not neces-sary to make cestuis que trust parties to suit in suits to execute trust in a will . • in cases of a joint and several demand either as principals or sureties . . provisions for the hearing of a case when defendant by answer suggests that bill is defective for want of parties . . . Petitions for rehearing, wlien they can l)e applied for Pleadings, filing of Pleas, to be accompanied by certificate of counsel, etc, provisions respecting same to what defendant may plead proceedings by plaintiff Practice, how" regulated when the rules of the United States Supreme Coiu-t or tlie circuit courts do not apply Process, issuing and return of final process defined . mesne process defined when writ of assistance to issue provisions as to same in cases where a person not a party to a cause is served service of same 11-10 y, 14 4 15 67 201 70 204 91 59 1 14 53 144 54 78 47 179 48 77 49 77 50 77 51 78 52 144 88 347 1 14 31 371 32 143 33 176 90 14 1 14 7 106 7 106 9 371 10 370 40 106-107 INDEX TO KQl'ITY KULKS. 405 Knl. . PaRe. Process, by wlioui served, :ui(l eiilry of i)roof of .-ci \ ice re(niired 1.", 107 Pi'oc/fe/n «H(/f.s, provisions as to the siiine' si 78 Reference, general i)rovisions as to reference to and ino- ceedings before masters 7."-8ii 289-207 to master of any decree for account of per- sonal estate of a testator or intestate . . 7.'5 289 when reference to master is to be brought on for hearing 74 205 before master, proceedings on 7-5 205 wliat reports of master on reference before him shall contain 7() 20.') power of master on 77 20 406 EQUITY PLEADING. Page Enle 18 307 Rule U 107 Rule 15 107 Rule IG 107 Rule 17 140 Rule 18 lo3 Rule 19 133 Rule 20 55 Rule 21 55 Rule 22 50 Rule 23 58 Rule 24 5!) Rule 25 142 Rule 26 ' 142 Rule 27 142, 17<5 Rule 28 273 Rule 29 273 Rule 80- 274 Rule 31 371 Rule 82 143 Rule 33 176 Rule 34 177 Rule 35 177 Rule 36 145 Rule 37 146 Rule 38 146, 178 Rule 39 143 Rule 40 141 Rule 41 145 Rule 42 58 Rule 43 56 Rule 44 141 Rule 45 '. 176 Rule 46 141 Rule 47 179 Rule 48 77 Rule 49 77 Rule 50 77 Rule 51 78 Rule 52 144 Rule 53 144 Rule 54 78 Rule 55 297 Rule 56 275 Rule 57 274 INDEX TO KqllTY RULES. 407 Rule 58 -"o Rule 59 ; 1-14 Rule GO -"4 RuleGl 1" Rule (52 1" Rule 03 I"'^ Rule(U !"'• RuleBo ... * 1"" Rule G() 1"'' Rule()7 -t'l Rule 68 -<^»4 Rule 09 -04 Rule 70 -04 Rule 71 -03 Rule 72 334 Rule 73 289 Rule 74 -05 Rule 75 -05 Rule 70 • -05 Rule 77 -00 Rule 78 • • -06 Rule 79 207 Rule 80 207 Rule 81 207 Rule 82 207 Rule 83 209 Rule 84 209 Rule 85 290 Rule 86 289 Rule 87 '» Rule 88 f547 Rule 89 <""! Rule 90 1-1 Rule 91 -59 Rule 92 280 Rule 93 301 Rule 94 50 Rules, Supreme Court: Rule 3 372 Rule 5 372 Rule 12 ■•'•"> Rule 13 373 Scaudul, neiiPnil provisions as to cliiiiiiiation of scandal in bills 20-27 • 142 in bills not permitted. Will le struck out on exception 20 142 408 * EQUITY PLEADING. Rule. Page. Service, provisions as to service of process 11-16 106-107 Stocklioldcrs, bills brout'lit by stockholders in corpora- tion against the corporation and other parties, how ver- ified, and wliat allegations must be contained therein . 94 56 Subpoena, provisions respecting 7 106 wlien to issue .... 11 106 Avho to issue same, when it may be issued, and how returnable 12 106 general provisions as to same, how served . . 13 107 when and how issued 14 107 by whom served, proof of service required . 15 107 l)roceedings on return of, served 16 107 Supplemental answers, provisions as to same 46 141 bills, when granted, and provisions re- s])ecting same 57 274 contents of 58 275 Testimony, when taken by commission 67 201 orally 67 201 time for various parties to take testimony where evidence is to be taken orally ... 67 201 liow to be qaken by deposition according to act of Congress • 68 204 general provisions as to time of taking ... 69 204 when and how same may be taken de hene esse 70 204 form of hist interrogatory 71 20B Time may be abridged in certain cases 4 15 when subpffina is returnable 12 106 for appearance of defendant 17 140 when bill may be taken jjro confesso against de- fendant 18 133 for entry of decree when bill is jj7-oco»/esso . ... 19 133 provisions relating generally to time in which bills may be amended, etc 28-30 273-274 for filing new or su{)plemental answer 46 141 to have case set down for argument wlien defend- ant by answer suggests defective bill for want of parties 52 144 when suits will stand revived as of course ... 56 275 for pleading to supplemental bill 57 274 filing exceptions to answer for insufficiency . . 61 177 paities to suits to take testimony when evi- dence is to be taken orally 67 201 general provisions respecting time of taking testi- mony 69 204 for filing exceptions to report of master 83 209 INDKX TO KQUITY RUF-KS. lOK Kule. I'aijc. Verification, bills bnniglit by stockliolders affainsl tlic corporation and otlior parties, how verified and wliat allegations must be contained therein ;t4 .'»«'» Witnesses, how examined when evidence is to be taken ' orally G7 201 compelled to attend . . .... Cu 201 when and how some may be examined de bene esse 70 2()4 before commissioner or master or examiner. how compelled to ai)pear and testify when same may be examined in open court Writ of assistance, provisions as to same ... when to issue sequestration, provisions as to same when tn issue . . ■,s 2(K{ 'S 20<5 ( 10(t 9 :{7l 7 100 8 870 CO en lYO/ >". 0%^ ,:;V..OF(AlllF0ff^ fia § 1 :lOSANCEU:r;> A.OFCAIIFO;?^;, aofc ^TiUDNVso]^ %aaAiNfljy\v >&Aiivaaii-^'^ ^o\\i\ m/^ ^immor^ % iajAlj'il!-Jt\> ■''uUiUi?J-JO"^ vANCEli^^ \INlHk\^' ^(^Aavaasi'ii- ■'■0/:^^ .^' A;OFCAIIFO/?^ '6^AiiViian-'i^^^ >^-iosANCFi;:rA .^WE•UNrVERi•/A iJ.lOS- Ui?JJO^ ^^OJIIVDJO^ ^HDNVSOl^ ^^MEUNIVER5;/^ '^mwm^ ^^OJITVJJO^ #■' S «-3 ^OFCAllFOMj^ ^OFC ^^Ad^ BRARYQr^ -^ME«WVER% AjvlOSi "^J^DW-SOl^ ^^MEUNIVEW/^ ■S-; en fio *-7^Vii ivl- ^lOSMHfx^ "^iJiJONVso^^ "^/sajAiNrt-awv o ^losANcntr^ o "^/^aiAiNft-awv ^ AA i)0()*)if'./i() '. o^VUBHARYO/ ^MIBRARYO/;^ 5 i ^OFCAIIFO% \^myi^ 5jrtFUNIVn?r/A ^lOSANCnCT/ ^f^ONVsm^ "^aaAiNn-jttV^ ^OFCAllFOff^ ^^WFUNIVFRJ/^ ^lOSANCHCr^ '^Sa3AINn-3WV ^JJUONVSOl^ ^•lOSANCElft)* "^/saiAiNnawv ^t-UBRAJfVQr 1 ^ ^OFCAIIFOM)^ ^OFCAUFOR^ !^ ^(^AHvaan-^ ^lllBRARYO/^ .^lUBRARYQr^ ^