UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY fUAaoAsle-j -3oUv\ Frees**-** - Mt+frrd. A TREATISE ON THE PLEADINGS IN SUITS IN THE COURT OF CHANCERY, BY ENGLISH BILL. BY JOHN MITFORD, ESQ., (THE LATE LORD REDESDALE.) THE FIFTH EDITION, COMPRISING & Hargc 230^ of gltfoitional Notes JOSTAH W. SMITH, B.C. L., OF LINCOLN'S- INN, ESQ.., B ARRISTEU-AT-LA.W, LONDON: V. & R. STEVENS AND G. S. NORTON, 3Lato 33aa&&lln'g airtr iJuilteljcr^, (Successors to the late J. 8f W. T. CLARKE, of Portugal Street,) 26, BELL YARD, LINCOLN'S INN, AND 194, FLEET STREET. MDCCCXLVII. T I. O N HON: 11 N ri R, BILL YARD, LI HI OLIl'fl 1 Ml. THE EDITOR'S PREFACE TO THE PRESENT EDITION. The fourth edition of this admirable Treatise was published in the year 18$7. The long in- terval which elapsed before it became out of print is partly to be attributed to the fact that the de- mand for a work on equity pleadings is almost entirely limited to the Chancery Bar, and partly to be ascribed to the publication of other works on the subject, which had the advantage of con- taining many cases reported since the publication of the fourth edition of this Treatise. The in- terval above alluded to had no connexion with the existence of any unfavourable opinion of this work, either when viewed by itself, or when compared with any more recent production ; for, as the work was originally characterized by Lord Eldon as " a wonderful effort to collect what is to be deduced from authorities, speaking so little iv PREFACE TO THE PRESENT EDITION. what is clear;"* so, it was truly remarked by Sir Thomas Plumer, that this book "has ever since been received by the whole profession as an autho- ritative standard and guide ;"-f- and the same remark is equally applicable to it at the present time. This edition is reprinted verbatim from the fourth edition, including the references and notes added thereto by George Jeremy, Esq., of Lincoln's Inn, which are printed in double columns under the text. The additions by the present editor consist of a Table of Cases, of a Marginal Analysis, of Notes printed across the page, under Mr. Jeremy's notes, and of a long Note on Parties, for which the end of the volume was considered the more convenient place. The present editor's notes comprise the enact- ments and orders, relating to the subject of equity pleading, which have been made within the pe- riod extending from the beginning of the year 1826, which was shortly before the publication of the fourth edition, down to the end of the year Is id, will, the decisions reported within the same period, whether in the octavo Reports, the Law 9 Ves. 51. t 2 Jac. & W. 152. PREFACE TO THE PRESENT EDITION. V Journal, or the Jurist, to the number of about six hundred. The endeavour of the editor has been, to divest the cases of those particulars which are of no use to the student, and have no essential rele- vancy to the matters with reference to which such cases are consulted by the practitioner, and to accomplish the difficult task of moulding the essential parts of the cases, and the reasons of the decisions, where any are expressed, into suc- cinct yet clearly expressed propositions, placita, or rules, in such a way as to exhibit the points and principles of pleading which the decisions in those cases serve to establish. He hopes that the notes he has added will be found to consist of a precise and perspicuous enunciation of what may be relied on as matter of actual decision. Mere dicta and opinions he has passed by, as too often tending to mis- lead. He has also for the most part abstained from stating general propositions founded on a small number of particular cases, as liable to the same objection. And while he has avoided giving the cases in the narrative or statement form, comprising names, dates, and other un- VI PREFACE TO THE PRESENT EDITION. necessary particulars, he has still endeavoured to preserve, in the terms of the placita, the es- sential, specific features of each case, because, if he had not, such placita would not acquaint the practitioner with the degree of resemblance or material difference between ^he cases from which they are derived and the cases occurring in prac- tice with reference to which they may be con- sulted. The following quotations may suffice as illustrations of the propriety of the course thus pursued : " That case, so far as it applies to the present, was a mere dictum. The decision itself is not applicable"* — " The words attri- buted to me were not necessary for the purpose of the decision : and nothing except the decision is authority which binds." f — " It is true that the dictum of Lord Cottenham is more gene- rally expressed; but all dicta should be con- strued according to the circumstances of the case in which they are found." * — " It is very difficult to say that these particular cases could * See Sloman v. Kelly, 4 Y; & C. Eq. Ex. 172. t See James v. Herriot, 5 Law J. (N. S.) Ch. R., 133; and com- pare Bedford v. Gates, 4 Y. & C. Eq. Ex. 21, with Kimber v. Ensworth, 1 Hare, 2!)3. X Aklerson, 13., in Davies v. Quarterman, 4 Y. & C. Eq. Ex. 722. PREFACE TO THE PRESENT EDITION. Vll have been decided otherwise than they were ; but the marginal notes go much further than the judgments!' * At the time when the following Treatise was written, the books on equity jurisprudence or jurisdiction and on equity practice were of a very meagre kind ; and on this account there are parts of this work which relate to jurisprudence or jurisdiction and practice, rather than to pleading. Of course the notes of the present editor are almost exclusively confined to pleading, as that is the pro- per subject of the book, and as the other subjects now occupy a vast space, and have been sepa- rately and ably discussed by other writers. In extenuation of any inaccuracies and defects which may exist notwithstanding the great care which has been bestowed by him, he must plead a pressure of professional business towards the close of his editorial labours, which rendered it an ex- tremely arduous and exhausting effort finally to complete his notes, and to superintend the print- ing of the volume. J. W. S. S, Old Square, Lincoln's Inn. * Wigram, V. C. in Malcolm v. Scott, 3 Hare, 63. And see Sharpe v. Taylor, 11 Sim 50 ; and Barnard v. Laing, 6 Jur, 1050. PREFACE TO THE FOURTH EDITION, BY GEORGE JEREMY, Esq. Lord Redesdale having honoured me with that confidence which was necessary to my su- perintending a new edition of the following highly valuable work, I proposed to examine the autho- rities cited in the last edition of it, and to add the references to such new cases as might appear to me to elucidate the subject, a plan in which his Lordship was pleased to concur. In the ad- ditions accordingly made by way of note, I have endeavoured, for the most part, to confine my- self to the mere citation of authorities, generally selecting those of the latest date ; although I have in some instances, where the decisions did not directly sustain or precisely apply to his Lord- ship's propositions, but where, nevertheless, notice of them seemed material, made, such remarks as were necessary to their introduction. In these respects I have been led into greater detail than was originally intended ; but it is hoped that the X PREFACE TO THE FOURTH EDITION. practical utility of the present publication will be thereby increased. In referring to the authori- ties, I have made the distinction, which it is now usual to adopt, between decisions and dicta, by citing the name of the case in the one instance, and the page of the report in the other. I have also deemed it expedient to render the index more copious and precise. His Lordship has made some few additions and alterations in the text, but I have not been instrumental in with- drawing from the Profession any part of the work itself. And here I may be permitted to remark that it has been a subject of great interest to me, in the course of my inquiries, to perceive that this work, which in its outline and substance was the original treatise upon equity pleading, has, from the time of its first publication been so far the guide to subsequent decisions as to have ren- dered any material correction, or even qualifica- tion of the general principles explained in it, wholly unnecessary. G.J. 1, New Square, Lincoln's Inn. LORD REDESDALE'S PREFACE TO THE THIRD EDITION. The materials from which the first edition of this Treatise was compiled were not very ample or satisfactory ; consisting, principally, either of mere books of practice, or of reports of cases, generally short, and in some instances manifestly incorrect and inconsistent ; and the author had had little experience to enable him to supply the deficiencies of those materials. The communication of infor- mation, and the assistance of experience, were earnestly solicited by the preface to that edition, but with little effect. Four-and-thirty years have since elapsed; and when, at the distance of seven years from the first publication, the second edition was prepared for the press, such observations as had occurred to the author in practice, and such notes as he had collected, were the principal means of improvement which he possessed ; and he was then too much engaged in business to give that attention to the subject which it required. Nearly eight-and-twenty years have since passed ; Xll PREFACE TO THE THIRD EDITION. and many volumes of reports have been published, and some treatises have appeared (particularly those by Mr. Fonblanque and Mr. Cooper), from which much assistance might have been derived. During the greater part of this period the author was not only unwilling to engage in the labour of preparing a new edition, but disabled, by various avocations, from attempting to make any im- portant additions. Long absence from the bar, the consequent want of the habits of practice, age, the enjoyment of repose, and the indolence which that enjoyment too often produces, have increased his unwillingness to undertake a work of labour ; and that which is now offered is little more than a republication of the second edition, with refer- ences to some cases since reported ; a few addi- tional notes of cases not reported ; some correc- tions of apparent errors ; and some extension of parts which appeared to have been most imperfectly treated in the former editions. It is therefore far from satisfactory to himself; and would not have been now given, if he had not been assured that even a republication of the last edition, with all its imperfections, was desired by the Profession. Xlll CONTENTS. The pages here referred to are the pages of the Fourth Edition, printed in the margin of this edition. INTRODUCTION. Of the extraordinary jurisdiction of the court of Chancery, and of the manner in which suits to that jurisdiction are instituted, defended, and brought to a decision ....... 1 'I. Of Bills. Chap. 1. . . 21. 1. by whom 1. On behalf of the"| crown and of those who by the king's attor partake of its preroga- }■ tive or claim its parti- | officer cular protection . 2 y ney-general or other . . 21 f Chap. I. Sect. I. by whom, and. A certiorari bill 34, 50 2. Not praying relief, 34,51 A bill to perpetuate the testimony of 1 », ,. Of the several: II. Bills not original . 33,34,55 kinds and dis- tinctions of bills 33 witnesses 2. A bill for discovery 34, 53 1. A supplemental bill .... 34, 61, 75 2. A bill of revivor 35, 65), 76 3. A bill of revivor and supplement 35, 70, 80 III. Bills in the nature of original > - bills 33,35. 80 s ' A cross bill 35, 80 A bill of review 35, 83 A bill in nature of a bill of review . 35, 92 A bill to impeach a decree on the "1 „= q 2 ground of fraud J ' A bill to suspend or avoid the exe- "1 „, q< cution of a decree J ' 6. A bill to carry a decree into execution 35, 95 7. Abilliuthenatureof a bill of revivor 36, 71, 79 8. A bill in nature of a supplemen- "I „ fi „„ „„ tal bill J ' ' XIV CONTENTS. I. Of Bills. Chap. 1.— continued. Chap. I. Sec. III. Of the frame and end of the I several kinds of bills, and of in- 1. Praying relief . 37 « I. Origi nal hills, - 36 "1. A hill praying the decree of the court touching some right claimed by the plaintiff in opposi- tion to the defendant 37 2. A hill of interpleader 48 3. A certiorari bill 50 „ , T , . ,. » fl. A hill to perpetuate the testimony of witnesses, 51 2. Not praying relief, J r r ' L 511 „ . i_m«_J! II. Bills not original 2. A hill for discovery 53 1. A supplemental bill 61,75 55 -{ 2. A bill of revivor 69,76 P l_3. A bill of revivor and supplement 70,80 formations . 36 III. Bills in the nature of original hills . . . BO IV. Informations . 90 1. Cross bill 2. Bill of review 3. Bill in nature of a bill of review .... 4. Bill to impeach a decree on the ground of" fraud 5. Bill to suspend or avoid the execution of a ■ decree 80 83 92 ■92 ■94 6. Bill to carry a decree into execution . . 95 7. Bill in the nature of a bill of revivor . 71, 97 8. Bill in nature of a supplemental bill . 72, 98 Chap. II. Of defence to bills . . 102 r Chap. II. Sec. I. 1. On behalf oQ the crown, or of those who partake By whom a' [depending,246 stance of the fl. A tine 250 case, the plain- 2 - Mattersofre- tiff is not en- cor<1 > or as of | 2 " A recovei J' titled to relief, J record in some •{ 236 j court, not a I 3. A judgment court of equity, | or se nteuce, 250 L 253 h XV111 I. Of Bills. Chap. II. — continued. CONTENTS. 3. Mat- ters in pais, 258 L f 1. A stated account . . 259 2. An award .... 260 3. A release .... 261 "i 4. A will or conveyance 263 5. Circumstances bringing a case within the protection I of a statute . . . 265 10. That supposing the plaintiff entitled to the assistance of the court to assert a right, the defendant is equally entitled to the protection of the court to defend his possession . 274 11. That the hill is deficient to answer the pur- poses of complete justice 280 1. That the plaintiff's case is not such as entitles a court of ecmity to as- sume a jurisdiction to compel a discovery in his favour . . 282 2. That the plaintiff has no interest in the subject, or no interest which entitles him to call on the defendant for a discovery 282 3. That the defendant has no interest in the subject to entitle the plaintiff to institute a suit against him, even for the purpose of discovery . 283 to discovery, 281 { 4. That the situa- tion of the de- fendant renders it improper for a court of equity to compel a dis- covery . . 284 1. Because the dis- covery may sub- ject the defendant to pains and pe- nalties . . 284 2. Because it will subject him to a forfeiture . 286 3. Because it would betray the tnist reposed in a counsel, attorney, or arbitrator 288 4. Because he is a purchaser for a valuable consider- ation, without no- tice of the plain- tiff's title . 288 CONTENTS. XIX I. Of Bills. Chap. II. — continued. 2. to bills-) not ori- j, 1. To bills of revivor and supplemental bills . 289 ginal, 288 j f 1. Cross bills 290 3. to bills in the nature of « original bills, 290 2. Bills of review, and bills in nature of bills of review, and bills to impeach a decree, or suspend or avoid its execution ..... 291 3. Bills to carry decrees into execution 293 4. Bills in the nature of bills of revivor, or of sup- plemental bills 293 4. of mat- ters rela- tive to pleas in general, V. 290 1. The nature of pleas in general 2. Their form 294 300 3. The manner in which they are offered to the court 301 4. The manner in which their validity is decided 301 Chap. II. f L The genera i na t ur e f answers 306 Sect. II. Part III 2. The form of an answer . . . . . .313 1. Answers «{ 3 The manner in which the sufficiency of answers is decided upon, and their deficiency supplied and dis- claimers, 106 306 I *' ^ ne na ^ ure anc * form of disclaimers 315 318 Chap. III. Of replications and their, consecpiences . .321 Chap. IV. Of incidents to pleadings in general . . . 324 2. Demurrers, pleas, answers, and disclaimers, or any two or more of them jointly 319 "1. Of general replications 321 2. Of special replications, and the subsequent pleadings anciently used . 321 3. Of subpoena to rejoin, and rejoinder 323 b 2 TABLE OF CASES. Abbott, Society for the Illustration of Practical Science v. Abery v. Williams Abraham v. Bubb ■ v. Dodgson v. Hanuay 417 335 . 163 248, 381 . 417 393 151 291 . 422 211 192, 197 398 Abrams v. Winshup Abrey, Wood v. Acland, Edmunds v. Ackland, Malpas v. Aclom, Maud v. Adair v. New River Company Adams v. Barry , Bayley v. 281, 314, 350, 356, 372 v. Dowding . . 77, 239 v. Paynter . . 426, 427 v. St. Leger . . .203 v. Thompson . . 422 Adamson v. Hall . . .96 v. Hull . . 69 Adderley v. Sparrow . . 225 Addison v. Walker . . 217 African Company v. Parish . 334 Agar, Blain v. . 415, 417 Chamberlain v. v. Fairfax v. Macklew v. Regent's Canal Company Aggas v. Pickerell Aikin, Wilkins v. Ainslie v. Medlicott Alardes v. Campbell Albrecht v. Sussraan Alcock, Parker v. . Aldridge v. Thompson . Alexander v. Mullins Allan v. Allan v. Houlden Allardes v. Campbell Allen, Bruce v. , Dunn v. . v. Sayer Allingham, Cox v. . Allington, Boteler v. Alsager v. Johnson . v. Rowley . Althus, Smith v. 251, 347 145 141 377 316 . 161 126 . 356 45, 49, 268 . 305 165 . 428 . 62, 182 . 420 304 . 247 85 . 295 390 234, 316 . 373 185 . 393 Alvares, Lord Dillon v. Alvin, Pennington v. Ambury v. Jones . Amers v. Legg . Amherst, Bawdes v. Amhurst v. King . 365, Amory v. Brodrick Anderson, Burnett v. v. Caunter , Ryan v. v. Stather , Stevenson v. v. Wallis Andover, New Elme Hospital v Andrew, Kirkman v. Andrews v. Brown v. Cradock , Kirkman v. v. Lockwood , Mehrtens v. v. Palmer v. Powys . , Steff v. Angel v. Hadden Angell v. Angell v. Draper . v. Hadden . v. Haddon r. Westcombe Angier (Lord), Clark r. Angove, Dungey v. Anon. Ambl. 237 . 1 Atk. 1 Atk. 1 Atk. 2 Atk. 2 Atk. 2 Atk. 3 Atk. 3 Atk. 3 Atk. 3 Atk. 3 Atk. 3 Atk. 276 3 Atk. 572 3 Atk. 644 • 3 Atk. 691 88 263 570 15 61 210 17 19 70 227 235 135 PAGE . 288 27, 30 64 267 . 309 367, 377 55, 292 60 . 405 206 . 426 . 58 27 . 171 347 . 314 27,31 . 346 239 245 174 . 184 347 193 63, 173 149, 223 . 165 58 64 . 207 60, 166 62 78 81 27 67, 388 135 . 149 , 147,307 . 377 314,342 . 196 377 7 202 . 304 96 XX11 TABLE OF CASES. 254, PAGE Anon. 3 Atk. 726 . . . 71 3 Atk. 750 . . 168 3 Atk. 809 . . . 280 Bam. 222 . . 394 Bunbury, 17 . . 131 2 Cas. in Ch. 161 . 321 2 Eq. Ca. Ab. 166 . 200, 201 2 Freem. 62 . . 302 2 Freem. 128 2 Freem. 143 6 Madd. 276 Mos. 47, 356 Mos. 123, 296 Mos. 268 Mos. 301 . 1 My. & C. 78 3 P. Wnu. Ill 3 Rep. in Cha. 25 Sel. Ca. in Cha. 69 1 Vern. 60 . 1 Vern. 117 1 Vern. 263 1 Vern. 318 1 Vern. 351 1 Ves. Jun. 91 1 Ves. Jun. 484 2 Ves. 414 2 Ves. 451 9 Ves. 221 . Anspach (Margravine of), Le Texierv. 187 Anstis v. Dowsing . . 307 Anthon v. Fisher . . . 268 Apperley v. Page . . 401, 415 Archbold v. Borrold . .379 Archer, Griffin v. . . 330 . v. Mosse . . .300 Arcot (Nabob of) v. East India Comp. 263 84 265 55 131 384 287 394 58 . 125 298 . 120 231 . 224 10 289 . 60, 72 . 292 288, 289 170 65, 221 . 254 Arderne, Powell v. Arglass (Earl of), Pitt v. Arkwright, Stansbury v. Armitage v. Wadsworth Armsted v. Parker . Arnold's Case . Arnold, Bechinall v. v. Heafield — , Morrison v. Arrowsmith, Lord Shaftesbury v. Arthur v. Hughes . — — , M'Namara v. Asbugg, Huddlestone v. Asgill v. Dawson Ashburner, Fletcher v. Ashcroft, Lambert v. Ashdown, Stileman v. Ashurst v. Eyre v. Eyres Askam v. Thompson Astley v. Fountaine Aston v. Lord Exeter Athill, Magdalen College v. 209 243, 339 . 157 157, 261 . 298 282, 381 . 324 350 62 229 . 405 55 . 298 342 . 206 393 . 148 325 . 345 227 207, 354 66 . 210 Athol (Duke of), Earl of Derby v. 262, 263 Atkins, East India Comp. v. . 231 v. Farr . . . 135 i v. Palmer . . . 174 , Shields v. . . 294 Atkinson, Greenwood v. 75, 77, 91, 387, 422 v. Henshaw ■ — , Johnson v. ■ — v. Turner Atkyns, Wright v. Atlee, Fane v. Atleo, Buccle v. Att.-Gen. v. Baliol College . v. Berkeley , Bolttt. . v. Breton v. Mayor of Bristol 23, 121, 199 w.Brown . . 24,121 159 166 280 55 333 209 34, 192 . 228 268 43 Buller Master 121 and Fellows of Catherine Hall . . 24 v. Earl of Clarendon . 121 v. Cleaver . . 1 6S v. Cornthwaite . .193 v. Cradock . . 213,214 v. Crofts . . 24 v. Sir John Danvers . 226 , Davison v. . . 376 v. Day . . 116 , Deare v. . 218, 102 v. Dinorben (Lord) . 3(37 v. Dixie . . E2I v. Duplessis . 233, 234, 334 v. East India Company 24 v. Bailiffs, &c. of East Ret- ford . . . .366 60 120 168 375 121 24 211 121 143 266 , Errington v. v. Fellows v. Forbes v. Foster v. Foundling Hospital v. Fox v. Goldsmiths' Company v. Green . v. Hamilton v. Heath — — v. Heelis . 24,121,195,410 v. Lord Hotham . 276 v. Jeanes . • 43 ■ v. Jenner . . 249 v. Corporation of Leicester 431 v. Lucas . 360, 362 v. Merchant Tailors' Com- pany . . 214,341,359 Middleton — v. Moses — v. Newcombe — v. Nicholl 120 24, 195, 256 67 168 v. Mayor of Norwich 48 TABLE OF CASES. XX111 Att.-Gen. v. Oglender v. Panther v. Parkhurst v. Parr , Pawlet v. — ■ — — — v. Pearson v. Plumptree , Poole v. v. Powel v. Powell » — , Reeve v. , Richards v. i\ Richards v. Ryder St. John's College PAGE 24 31 31 . 214 33 . 407 31, 120 33 25 120 33 57 169 . 300 210 v. Churchwardens of St. Mar- garet's, Westminster . 403 v. Skinners' Company . 186 , Smith v. . 62, 182, 183 v. Mayor of Stamford . 121 v. Sudell . 231, 233 v. Sutton . . 296 v. Talbot . . 264 v. Tyler . . 31 v. Vernon v. Vincent v. Vivian ■ v. Waddington v. Wilson v. Woolrich Attwood v. -, Hammond v. , Small v. Atwood v. Hawkins . Audland, Bignold v. Audley (Lord), Vigers v. Auriol v. Smith Austen, Rex v. . Austin v. Chambers . , Hall?;. . Axtell, Bissell v. Aylesbury (Lord), Palmer v Ayleworth, Sackvill v. Ayliffe, Peyton v. Backhouse v. Middleton Baddeley v. Curwen , Holmes v. Bagenal v. Bagenal Baggot, Salisbury v. Bagnal, Whaley v. Bailey, Butterworth v. , Partington v. v. Vincent Baillie v. Sibbald Bainbridge v. Burton Bainbrigge v. Baddeley Baines v. Baker Bainsby, Kingscote v. . Baker, Baines v. 7,24 . 234 23,24, 121 . 124 431 . 31 141 . 80 338 . 207 59, 167, 212 90 . 304 23 . 46 431 . 297 174 . 183 266 86 363 . 361 389 293, 295 310 238,283 407 . 187 313 . 411 243 . 168 388 . 168 Baker v. Bird v. Bramah , Galley v. v. Harwood , Holland v. v. Mellish v. Rogers , Trim v. , Usborne v , Weston v. Wetton Balch v. Symes v. Wastall Baldwin v. Lawrence v. Mackown v. Peach Balfour, Farquharson t Baliol College, Att.-Gen Ball, Hodson v. v. Oliver . v. Storie Ballard, Perrat v. Balls v. Musgrave . v. Strut Baltimore (Lord), Penn Baltinglass, Temple v. Bampton v. Birchall v. Birchell , Dench v. Bancroft v. Wentworth Banister, Obeston v. — , Overton v. Barber v. Barber v. Crawshaw , Savory v. . Barbon v. Searle Barclay v. Russell , Taylor v. , Thompson v Barefoot v. Fry Barfield v. NicLolson Baring v. Nash . v. Prinsep Barker, Dobbyn v ■ " , Kinsman v. , Lawson v. , Omychund v. , Ramkissenseat v. Ray v. Walters Barkley v. Lord Reay Barlee v. Barlee Barnard, Mendez v. (Lord), Vane v Barnes, Masters v. . v. Offer v . Saxby , Walker v. Barnesly v. Powel Barnett, Fortescue v. 33 PAGE 289 C4 245 46,157,399 425 218, 253 171 . 378 74, 389 . 424 424 139 123, 148, 149 . 196, 414 239, 245, 337 . 317 378 34, 192 . Ill 159 . 151 335 48 420 33 296 97 344 . 162 335 . 429 325 . 312 247 . 433 105 40 129 . 250 168 . 162 4S 238, 377 381 . 302 198 10 10, 26S . 347 42,412 12 30 . 173 163 . 405 108 . 373 141 . 300 432 XXIV TABLE OF CASES. Barnett v. Noble Barney V. Luckett Baron, French v. ' . Barrell, Rybott v. Barrington r. O'Brien Barrow, Hilton v. Barry, Adams v. v. Cane Barsham, Casborne v. Bartram, Hudson v. Baseley, Huguenin v. Baskett ». Toosey , Basnett, Mousley v. Bass, ex parte Basset, Jones v. Bate v. Bate Eateman, Griffith v. Bates v. Graves Bath (Earl of) v. Sherwin Batten v. Parfitt Bawdes v. Amhurst Baxter v. Conolly . Bayley v. Adams 281, 314 — v. Vincent PAGE 68 157 199 304 108 98 398 126 272 141 151 173 292 81 78 53 276 151 168 410 309 141 , 350, 356,372 Bayly, Richards v. Beadles v. Burch Beal, Wilkinson v. Beale, Plume v. Bean, Daws v. . Beasley v. Kenyon . Beaufort (Duke of), Maule i Beaumont v. Beaumont v. Boultbee v. Bramley v. Dukes , Field v. . v. Meredith . v. Sharp Beavan, Creasy v. Bechinall v. Arnold Beck ford v. Close , Tobin v. . Bedell v. Bedell Bedford Charity, in re Bedford v. Gates v. Leigh (Duke of), Peacock v. v. Wharton Beech v. Crull . Beechey, Pennington v Behrens v. Sieveking Belchier, Pearson v. Belfast (Earl of ) v. Chichester Bell, Consett v. . v. Dunmore , Gibson v. , Lord Howard v. v. Hyde , Meux v. 81 98 423 41,43 300 430 424 207, 244, 434 373 . 41,302 . 151 141 67, 154 190, 192 163 385 . 324 251 252, 316 302 . 121 419 193, 198 386 . 386 180 . 321 289 192, 196, 245, 337 173, 183 406 . 386 154 44 126 . 167 Bell v. Read , Robinson v. . , Tyler v. . Bendish, Wrottesley v. Benfield v. Solomons Benn, Daws v. Bennet, Kelsall v. v. Lee . v. Vade Bennett, Skey v. Bensley v. Burdon Benson v. Hadfield , Ocklestone v. Bent v. Young . Bentham, Ryder v. Berke v. Harris Berkeley, Att.-Gen. v. Berkhampstead School, Berks v. Wigan Berry v. Heard . , Stephens v. Bertram, Gordon v. . Bessant, Foot v. Best, Gompertz v. , How v. , Jermy v. . , Ragley v. Bevis, Cocker v. , Whitchurch v. Bickly v. Dorrington Bicknell v. Gough -, Smith v. . Biddulph, Hughes v. Biggs v. Penn Bignold v. Audland , Ellison v. . , Harvey v. Bill v. Cureton Billing v. Flight . , Lewis v. Bingham v. Dawson ! Binks v. Binks Binney, Hall v. . Birch v. Corbin ■ v. Gough , Sherrit v. Birchall, Bampton v. Birchell, Bampton v. Bird, Baker v. . , Edmunds v. . v. Hardwicke Birkhead, Wortley v. Birley v. Constables &c upon-Medlock Birne v. Hartpole Bish, Pope v. Bishopp, Jennet v, Bissell v. Axtell Black, Davis v. , Moore v. PAGE 287 . 153 405 126, 236 81 67 320 . 102, 390 189, 224 410 . 145 46, 212, 218, 416 . 272, 274, 318 . 65, 221 . 168 . 209, 210 . 228 ex parte 121, 265 . 384 162 263, 264 96 . 48,401 . 369 . 223 312 . 398 114 310,311,355 184 313,315,347 135 362 . 431 59, 167, 212 . 192 417 . 400 257, 335, 347 413 104, 110 89, 115 193 41 325 . 201 97 . 344 289 159 331 2, 243, 281 Charlton- . 216 113 . 281 176 . 297 111 . 144 230, of TABLE OF CASES. XXV Blackbourne, Strode v. . Blackburn v. Jepson v. Stables ». Staniland - — , Weatherhead v. Blackburne, Cornu v. Blackham v. Warden and Society of PAGE 319 72 152 73, 77 253 26S Sutton Coldfield Bladon, Countess of Plymouth v. Blain v. Agar Blake, D'Arcy v. , Duncalf v. v. Jones . , Moor, v. Blakeway, Earl of Strafford v. Blanshard, Lund v. Blaydes v. Calvert . Blenkarne v. Jennens Blewit v. Thomas . Blewitt, Good v. BHcke, Wright v. Blomer, Fenton v. . Bluck v. Elliot . Blunt, Cook v. Wybourn v, 195 293 415, 417 144 332 . 206 144 312, 372 Blythmore, Parker v. Boddam, East India Company v. Boddy v. Kent Bodily, Hall v. Bodmin (Lady) v. Vandebendy Boehm, Seeley v. Boeve v. Skipwith . Boldero, Lushington v. Bolingbroke (Lord), Manningham v Bolt v. Att.-Gen. Bolton v. Bolton , Franco v. v. Corp. of Liverpool (Duke of) v. Williams . 208, 217, 401, 415 56 323 315 193, 196 183 . 230 296 429 125 354 135 193 366 . 320 383 74, 389 137 149 268 96 233 362 165 405 360 Bond v. Graham , Earl of Lichfield v Bonham, Weld v. . 193,197,207,410 Borlase, Turner v. . . . 416 Borrold, Archbold v. Bosanquett v. Dashwood Bostock v. Shaw Boteler v. Allington Bothomly v. Lord Fairfax Boultbee, Beaumont v. Bourgoyne, Whittingham v. Bourke v. Bridgeman v. Earl of Clanrickard 234 Boussmaker, ex parte Boutcher v. Branscombe Bouverie v. Prentice Bovy v. Smith Bowden v. Hodge ■ , Parrot v. . Bowen, Edwards v. Bower v. Swadlin . 379 155 422 316 152 41, 302 155 302 381 268, 269 54 138 . 294 173 . 265 61 . 304 PAGE Bowers v. Cator . . 309 Bowles v. Stewart . . 135, 187 Bowyer v. Covert . . 208, 326 , Curre v. . .195 , Newsome v. . . 25 , Tidswell v. . . 387 Boyd v. Heinzelman . . 292 v. Mills . . .378 Boylston, Langston v. . . 59 Boy* v. Ford . . .194 Brace v. Harrington . . 206 v. Taylor . . .131 Bracey v. Sandiford . . 28 Brackenbury v. Brackenbury . 110 Bradish v. Gee . . . 339 Bradley, Brookfield v. . .110 , Perkins v. . 418 Bradock, Coupland v. . . 292 Bradstock, Smart v. . . 410 v. Whatley . . 430 Bramah, Baker v. 64 Bramley, Beaumont v. . . 151 Brandlyn v. Ord . .• 280, 323 Brandon v. Johnson . . 218 v. Sands . . 218 Branfil, Brydges v. . . 422 Bransby, Kerrick v. . . 300 Branscombe, Boucher v. . . 54 Brasier, Lechmere v. . . 116 Brassington v. Brassington . 124 Brearton, Willoughby v. . 263 Brereton v. Gamul * . 294,320,356 , Plunket v. . . 137 Bressenden v. Decreets . 207,208 Breton, Att.-Gen. v. . . 43 Brett, Madge v. . . 279 , Pratt v. 136 , Rusland v. . . 278 Brickwood v. Miller . . 384 Bridge v. Johnson . . 110 Bridgeman, Bourke v. . . 302 Bridget v. Hames . . 432 Bridgman v. Green . .189 , Lewis v. . . 337 Briggs, Shelberry v. . .71 Bristol (Mayor of), Att.-Gen. v. 23, 121, 199 Broadwood, Chadwick v. . 306, 345 , Scott v. . . 328 Brockhurst, Whitbread v. . 310,312,313, 314, 344, 355 Brodrepp v. Cole . . 232 Brodrick, Amory v. . 55, 292 Bromley v. Holland . . 152 v. Smith . . .415 Brook v. Hewitt . . 130 Brookes v. Burt . . . 428 Brookfield v. Bradley . . 110 Brooks v. Brooks . . .126 v. Burt ... 399 XXVI TABLE OF CASES. Brooks, Mellish v. . ■ v. Reynolds v. Stuart v. Lord Whitworth Brooksbank, Smith v. Broom v. Horsley Brotherton v. Hatt . Brown, ex parte , Andrews v. , Att.-Gen. v. V. Brown v. Bruce , Burk v. ■ «. Douglas iv Dowthwaite v. Dudbridge •., Fell v. v. Hamond v. Higden v. Martin , Nutt v. v. Perkins . v. Vermuden . v. Weatherby p. Williamson PAGE 425 195 420 209 424 342 323 121 314 24, 121 139 376 263 215 198 172 34, 192 319 74,337 , 79, 90, 91 196 . 349 . 84, 112 215,421 296 . 252 292 . 289 404 180, 332 . 247 376 155 Browne, Lord Deloraine v. v. Poyntz Brownlow (Lord), Devie v. Browsher v. Watkins Brownsword v. Edwards Bruce v. Allen , Brown v. Bruning, Smith v. . Brunswick (Duke of) v. The King of Han over . . • 33, 46 Bryan, Wagstaff v. . . 372 Bryant, ex parte . . 80 — ■ , Perrottv. . . .429 v. Withers . . 80 Brydges v. Branfil . . .422 v. Stephens . . 137 Bryson v. Whitehead . .141 Bubb, Abraham v. . . 163 Buccle v. Atleo . . .209 Buchanan, Edsell v. . . 316 Buckley, Travers v. . . 126 -, Traverse v. . .126 Buckworth, Morse v. . . 232 Buden v. Dore . • 226 Bulkeley, Gage v. . . 298 Bullen, Uppington v. . • 422 Buller, Att.-Gen. v. . . 121 Bullock, ex parte . . • 268 v. Richardson . 54, 231, 235 v. Sadler . . .319 Bulstrode v. Lecbmore . . 335 Bumpstead, South Sea Company!). 334 Butnsted, South Sea Company v. . 231 Buuiiet v. Foster . • 411 Bunyan v, Mortimer . • 126 PAGE Burch, Beadles v. . . 423 Burchell, Toosey v. . .89 Burdon, Bensley v. . . 145 Burge, Corporation of Trinity House, Strondv. . . .331 Burges v. Lamb . . 137 Burgh v. Burgh . . . • 138 V.Francis . . 138,152 Burgony v. Machell . k 347 Burk v. Brown - . . 268 , Fitzgerald v. . . 319 Burnett v. Anderson . . 60 Burney v. Morgan . . 71,96 Burr, King v. . . . 233 Burrows v. Jemineau . . 298 Burt, Brookes v. . . 428 , Brooks v. . . . 399 v. Dennet . . 206 Burton, Bainbridge v. . .411 v. Ellington . . 304 V. Jayne . . .179 ,Kirkley». . . 57,384 Bush, Watkins v. . . . 254 v. Western . . 170 Bushella. Bushell . . .126 Butcher v. Cole . . 281 Bute (Lord), Stuarts. . . 365 Butler v. Every . . 293 Royal Exchange Assurance Company Butt, Cook v. Butterfield, Hodgson v. Butterworth v. Bailey Byde v. Masterman Byne, Clarke v. 250 207 . 377 238, 283 . 373 166 Cadwallader, Hanrot v. . 423 Cabill, M'Neill v. . . 68, 104 Calcraft, Lucas v. . . 145 Caldecott v. Caldecott . . 411 Callandar, Wynne v. . . 152 Calliford, Longman v. .68 Calmady v. Calmady . . 145 Calverly v. Phelp . . .203 Calvert, Blaydes v. . . 56 v. Gason . . 163 Cambridge (Univ. of), Lord Petre v. 267 Campbell, Allardes v. . . 304,356 ■ — v. Dickens . . 404 , East India Comp. v. 230, 256 , Joyv. . . 80 v. Mackay . 216, 250 , Mills v. . . 64, 215 , Owden v. . . 30 1 Witts, v. . 29 Candler, Curteis v. . . 201 — — — v. Partington . . 377 Cane, Barry v. . . . 126 Caney, Phelips v. . . . 371 TABLE OF CASES. XXV11 PAGE Canham v. Jones • . 162 Cann v. Cann . . . 345 Canterbury (Dean and Chapter of), Tooth v. Cdrdale v. Watkins Careless, Stewart v. Carew v. Johnston -, Philips v . Carleton v. Leighton v. L'Estrange v. M'Enzie Carlish v. Gover Carlisle (Earl of) v. Goble (Corporation of) v. Carlon, Lord Foley v. . Carlton, Lowther v. Carnatic (Nabob of the) v C^npany . Carpenter, Sorrell v. Carr, Hollis v. . , Preston v. Carrick, Montriou v. — — — v. Young . Carroll, Edwards v. , Savage v. . Carter v. Goetze , Lee v. ———, Parker v. , Sharp v. Carteret (Lord) v. Paschal , Toller v. . Cartwright v. Green v. Hately ; — v. Pultney Carwick v. Young . Casamajor v. Strode Casborne v. Barsham Cathcart v. Lewis Catherine Hall (Master and Fellows of), Att.-Gen. v. Cator, Bowers v. . . v. Croydon Canal Company Cattell v. Corrall Caunter, Anderson v. Cave v. Cork v. Foulks Cavendish, Plunkett v. , Caverly, Leving v. . Cely, Cowslad v. Chadwell, Godfrey v. Chadwick v. Broadwood Chalcroft, Wilkins v. Chalie v. Gwynne Chalk v. Wyatt Chamberlain v. Agar v. Knapp Chamberlyne v. Dummer Chambers, Austin v. v. Thomson - — , Waters v. 98 66,221, 227 . 309 45 63, 174 273 394 126 338 . 113 Wilson, 141, 169 215 323 East India 262 . 391 40 . 361 58 . 290 106, 242 . 386 363 . 196 398 230, 332 115 . 264 230 277, 361 143 290 55 272 206 24 309 407 73 . 405 92 42 296 124 191, 326 . 280 306, 345 . 263 426 168 347 226, 236 137, 163 46 235 . 265 I'AGE Chancey v. Fenhoulet . . 233 v. May . . . 196 Chandos (Duke of) v. Talbot . 126 Chanter, Davis v. . . 398 Chan viell, Mutter v. . . 316 Chaplin, Gray v. 192, 196. 207, 412, 414 Chapman v. Turner . 258, 363 Charitable Corporation v. Sutton . 25 Charles v. Rowley . . 280 Charlton-upon-Medlock (Constables, &c. of), Birley v. Chauncey v. Tahourden Chave, Richards v. Chaytor v. Trinity College . Cheese, Tench v. Cheminant v. De la Cour Cherry, Ferrers v. Chester, Devie v. : — , Wilson v. . . 216 233 159 197 373 . 173 96 281, 322 . 427 230, 253 173, 183 187, 304 . 309 118 279, 342 309 146 362 Chetwynd v. Lindon Chichester, Earl of Belfast v. Chicot v. Lequesne . Child v. Comber v . Frederick v. Gibson v. Godolphin , Walmsley v. . Ching, Shaw v. Chippenham (Corporat. of), Dummer v. 256 Chitty, Cooper v. 59 Cholmondeley (Earl of) v. Lord Clinton . . 206, 383 , Pit v. . 302 Christchurch (Dean & Chapter of) v. Simonds . . 25,68 Christian v. Taylor . . 368 Churchman v. Tunstal . .169 Chute v. Lady Dacres . . 388, 392 Clack, Sherwood v. . .381 Clagett v. Phillips . . 362 Clanrickard (Earl of), v. Bourke . 381 Clare, Tidd v. . . 249 v. Wordell . . 86,87,118 Clarendon (Earl of), Att.-Gen. v. 121 Claridge v. Hoare . Clark v. Lord Angier , Kirk v. , Phillipps v. , Sherwood v. . Clarke v. Byne , Dew v. v. Earl of Ormonde , Poore v. , Tipping v. . v. Tipping Claxton, Wardell v. Clay, Douglas v. , Smythe v. Clayton, Fife v. , Harvey v. 331 207 . 203 82 . 247 166 174, 209 303, 304 43 . 367 142 . 433 195 106, 116, 242 99 335 XXV111 TABLE OF CASES. Clayton, Kenrick v. v. Earl of Winchester PAGE I 247 i 348 155 168 12 : 406 171 225 ! 309 313 i Clayworth, Cooke v. Cleaver, Att-Gen. v. Cleghorn, Christopher v Clements, Darthez v. Clerk, Cowper v. , Sherborne v. v. Wright Clifton, Mackworth v. Clinton (Lord), Earl of Cholmondeley v. 206, 383 (Lord), Palk v. 41, 67, 68, 389 Cloberry, Herring v. Close, Beckford v. , Ross v. Clough v. Dixon Clowes v. Higginson Co, Tirrell v. . Coape, Graham v. Coates, Dunn v. Coats worth, Dalston v. Cochrane, Gerothwohl v. Cock v. Donovan Cockburn v. Thompson Cocker v. Bevis Lord Egmont Combes, Proud v. Compton, Payne v. Congreve, Hichens v Coningsby (Lord) v. Sir Jos Connell, Seddon v. v. Warren Conolly, Baxter v. Consett v. Bell Walker v. Cockerell, French v. , Munch v. Codrington v. Codrington Coffin v. Coffin Coke v. Fountain v. Wilcocks Colburn v. Duncombe Colby v. Hawkins Colchester (Mayor of) V (Mayor and of), Lowten v. Colclough v. Evans Cole, Brodrepp v. , Butcher v. , Richards v. , Lord Stowell v. Coles, East India Comp Colegate, Townley v. Colley, Cox Collier, Millbank v. Collins v. Collins v. Gough v. Shirley , Sloggett v. , Strange v. , Wetherell v. 251 325 431 151 173 . 380 65, 222 135 . 181 173 192, 196, 207 114 419 429 . 430 358 . 137 88 . 355, 356 418 420 Lawton . 25 Commonalty 239 75, 77 232 . 281 232 96 207 . 350 63 . 410 74, 91, 423 . 280 424 . 388 387 Collinson v. Collis v. Swayne . . .219 Collyer, Smith v. . . 136 Columbian Government v. Rothschild 34 Columbine, Topham v. . . 41 Comber's Case . . 182, 316 Comber, Child v. . . 309 Constable, Parker v. Conyers, Sir Wm. Wake v Cook v. Blunt v. Butt . v. Delebere . , Flight v. . v. Martin v. Martyn Cooke v. Clayworth , Mussell v. v. Turner , Ward v. . , Williams v. . Cookson v. Ellison , Hughson v. , Duke of Somerset v. Cooper v. Chitty , Richards v. v. Tragonnel Coote v. Mammon . Copeland v. Wheeler Copeman ». Gallant Copland, Toulmin v. Copper Miners of England (Gov. and Comp. of), Glascott v Coppin v PAGE 302 426 408 . Jekyll 254 , 422, 431 . 279 141 . 406 303 77 225 . 429 207 . 336 172 . 389 41 . 155 309 . 360 209 96 , 431,433 428 186, 361 Corbett v. Corbett v. Tottenham Corbin, Birch v. Cork, Cave v. v. Wilcock Cornell v. Ward Cornford, Lowndes v. . Cornthwaite, Att.-Gen. v. Cornu v. Blackburne Corp. of Trinity House, Strond v Corrall, Cattell v. Corry v. Trist Cotes v. Turner Cottington v. Fletcher Cotton v. Luttrell v. Manering Coupland v. Bradock Covert, Bowyer v. Cowdell v. Tatlock Cowell, Egremont v. , Vickers v. Cowper i\ Clerk v. Earl Cowper Cowslad v. Cely Cowtan v. Williams 139 59 425 354 323 376 80 112 65, 330 71 174 . 373 41 92 313, 314 . 297 166 . 193 268 Burge 331 73 . 193 378 309, 351, 381 189 . 263 292 208, 306 383 47 425 . 171 135 191,326 166 TABLE OF CASES. XXIX PAGE Cox v. Allingham . . . 390 v. Colley ... 63 , Harding v. . . 389, 394 , Martineau v. . . 364 , Porter v. . . 80, 81 Coxon, Wright v. . . 302 Coysgarne v. Jones . . 280 Cradock, Andrews v. . . 27, 31 , Att.-Gen. v. . 213, 214 , Platel v. . . 430 Craig, Fenn v. . . .413 Cramborne (Lady) v. Dalmahoy 70, 101 Cranborne v. Dalmahoy . . 339 Crawford, Miller v. . . 213,427 Crawshaw, Barber v. . .247 Creasy, Cuthbert v. . . 129,252 Cressett v. Mytton . . .45 Cressy, Hildyard v. 293, 294, 351, 355 Cresy v. Beavan . . 385 Crew, Selby v. 235 Cridland, Doble v. . . 346 Cripps, Davis v. . . 215, 369 Cristopher v. Cleghorn . . 12 Croft, Waterton v. . 200, 404 Crofts, Att.-Gen. v. 24 „. Wortley . . 287, 290, 357 Croggon v. Symons . . 59 Crompton v. Wombwell . . 75 Cropper v. Knapman . 76, 185 Crosseing v. Honor . . 189 Croster v. Wister . . .85 Croucher, Lingood v. . . 187, 304 Crow v. Tyrrell . . 67, 139 Crowcher, Woollands v. . 68 Crowe v. Del Ris and Vallego . 221 Crowfoot v. Mander . . 84 Crowley, Harlow v. . . 166 Crowther, Draper v. . . 263, 264 Crull, Beech v. . . .180 Crump, Dagly v. . . 386 Croydon Canal Comp., Cator v. 407 Cud v. Rutter . . 141 Cue, Vernon v. . . 394 Cuff v. Platel . . .177 Cullen v. Duke of Queensberry . 190 Cunningham v. Wegg . . 263 Cureton, Bill v. . . 400 Curlewis, Desborough v. . . 364 Curling, England v. . . 98 v. Marquis Townshend . 387 Curre v. Bowyer . . 195 Currer, Roundell v. . . 94 Curteis v. Candler . . 201 Curtess v. Smalridge . . 153 Curtis v. Curtis . 141, 144, 145 , Farmer v. . . .424 , Hogue v. . . 292 , Johnson v. . . . 302 Curwen, Baddeley v. . . 363 Curzon, Owen v. . . 79 Cuthbert v. Creasy Cutler, Sowton v. . Da Costa v. Da Costa Dacres (Lady), Chute v. . Dagly v. Crump Dalby, Reeve v. Dallison, Emerson v. Dalmahoy, Lady Cramborne v , Cranborne v. PAGE 129, 252 60 Dalston v. Coatsworth Dalton, Rawlins v. v. Thomson Daly, Kennedy v. Dancer v. Evett Daniel v. Mitchell . Danvers (Sir Jno.), Att.-Gen. Ritson v. . 29 388, 392 . 386 288 58 70,101 339 . 135 326 62 113, 268, 294 241, 338 288, 289 . v. . 226 225 D'Arcy v. Blake . . 144 Darcy, Savile v. . . 339 Darlington (Earl of) v. Pulteney . 243 Darnell v. Reyny . . 378 Darthez v. Clements . . 406 v. Lee . . 401 Winter . .179 Dartmouth (Mayor and Corporation of) v. Holdsworth - (Corporation of) v. Seale Darwent v. Walton Dashwood, Bosanquett v. Daubigny v. Davallon Davallon, Daubigny v. Davenport v. Davenport . Davies, v. • v. Davies , Edgworth v. v. Williams Davis v. Black v. Chanter v. Cripps , Jones v. . v. Leo , Earl of Macclesfield v , Meinertzhagen v. v. Prout , Whitworth v. Davison v. Att.-Gen. Davy, Potter v. Daws v. Bean v. Benn . Dawson, Asgill v. , Bingham ?>. . v . Dawson v. Ellis v. Sadler ■ , Sellas v. Day, Att.-Gen. v. . v. Drake . v. Merry . , Swallow v. 361 225 . 191 155 . 334 334 29 268, 273 . 368, 404 . 262 404 . Ill 398 215, 369 309,347,403 . 136 . . 139 . 431 30 . 187 376 347 . 430 67 . 342 . 104, 110 149, 302 141 . 304 79 . 116 429 . 137 386 XXX TABLE OF CASES. Deacon, Foster v. . . . , Stroud v. Deane v. Rastron • Dear, French v. Deare v. Att-Gen. . Dearman v. Wyche Debbieg v. Lord Howe De Bernales, Moons v. . De Bonneval, De Themines v. Decreets, Bressenden v. Deeks v. Stanhope . De la Cour, Cheminant v. Delebere, Cook v. . De Lisle, Wormald v. . Dell v. Hale Delondre v. Shaw Deloraine (Lord) v. Browne Del Ris and Vallego, Crowe v De Minckwitz v. Udney Dench v. Bampton Dennet, Burt v. Denny v. Filmer . 241 v. Filmore . Denys v. Shuckburgh Derbie, Philips v. Derby (Earl of) v. Duke of Athol Dering, Thomas v. Desborough v. Curlewis v. Rawlins Desbouverie, Pusey v. . De Tastet, Munoz v. . v. Sharpe De Themines v. De Bonneval Devaynes v. Morris Devie v. Lord Brownlow v. Chester Devis v. Turnbull . Devonsher v. Newenham Dew v. Clarke Dewhurst, Price v. . Dickens, Campbell v. Dickenson, Grey v. Dillon (Lord) v. Alvares v. Francis Dilly v. Doig Dinely v. Dinely Dinorben (Lord), Att.-Gen. v. Dinwoody, Hercy v. Dixie, Att.-Gen. v. Dixon, Clough v. v. Wyatt Dobbyn v. Barker Doble v. Cridland . v. Potman Dobson v. Leadbeater Dods, Hind v. . Dodgson, Abraham v. Doig, Dilly v. . Dolder v. Bank of England v. Lord Huntingfield PAGE 82, 89 22G . 366 57 218, 402 316 222, 227 393 . 402 207, 208 . 417 173 . 336 48 . 219 177 252 221 247, 273 162 . 206 243, 339 241 342 95 262, 263 276 364 361 305, 356 . 399 318 . 402 95, 372 . 289 281, 322 . 173 253, 256 174, 209 428 404 110 288 57 210 . 223 367 317 121 431 96 381 . 346 99, 240 293, 385 366 248, 381 210 33 362 PAGE Doloret v. Rothschild . . 141 Done v. Peacock . . . 248 Donegall (Marquis of), Houlditch v. 87, 118,288 v. Stewart 371 Donovan, Cock v. . . 173 Doran v. Simpson . . . 187 Dore, Buden v. . . 226 Dorman, Hook v. . . 66, 146, 256 Dormer v. Fortescue Dorrington, Bickly v. Dors, Mitchell v. Dorset (Duke of) v. Girdler Dory, Sol. -Gen. v. Dott v. Hayes Doubleday, Turner v. Doughty, Else v. Douglas, Browne. v. Clay v. Horsfall , Lloyd v. , Paxton v. , Rutherford v. Dowding, Adams v. Dowe v. Farlie . Dowlin v. Macdougall Downs, England v. Downshire (Marquis of) v. Sandys Dowsing, Anstis v. Dowthwaite, Brown v. Doyle v. Muntz Doyly v. Smith Drake, Day v. v. Drake 248, 381 . 184 160 . 62, 170 23 . 370 209 . 346 215 . 195 . 203, 416 . 212 195, 231, 360 159 77, 239 Draper, Angell v. v. Crowther Drayton, Tyler v. Drew v. Drew v. Power . Dry, Mavor v. Diyden v. Robinson Du Chatel, Hannington v. . Dudbridge, Brown v. Dudman, Lord Montague v. Duesbury, Glyn t. Dukes, Beaumont v. Dummer, Chamberlyne v. 204 186 30 137 307 . 198 273 . 280 429 349, 363 149, 223 263, 264 226 270, 347 302 . 383 304, 355 155 172 155, 228 58 141 137,163 v. Corporation of Chippen- ham Duncalf v. Blake Duncombe, Colburn v. — , Hawker v. Dungey v. Angove Dunraore, Bell v. Dunn v. Allen v. Coates . v. Dunn Dunny v. Filmore Dunsany (Lord), Latouche v Duplessis, Att.-Gen. v. 256 332 . 418 110 60, 166 386 85 65, 222 . 211 106 . 101 2:53, 234, 334 TABLE OF CASES. XXXI Duppa, Howe v. Durand, Hepburn v. » v. Hutchinson PAGE 343, 346 368 290, 357 43, 366 Durant v. Durant Dursley (Lord) v. Fitzhardinge, 62,63, 173 Dyer, Savory v. . .55 Dyson v. Morris . . 404 Eade, Lingood v. . . . 304 Earl, Senhouse v. . .279 , Rogers v. . . 151 Earle v. Holt . . . 250, 420 — v. Pickin . .46 East India Co., Nabob of Arcot v. 263 v. Atkins . 231 v. Boddam . . 135 v. Campbel . 230, 256 , Nabob of theCarnatic v. 262 v. Coles . . 207 v. Edwards . 59,60,166 . v. Henchman . 45 — v. Keighley . 25 , Macgregor v. . 328 v. Neave . 232 — — , Sangosa v. . 43, 326 , Steward v. . 187, 223 , Wych v. . 295, 312 East Retford, Bailiffs &c. of, Att.- Gen. v. 366 Eccles, Rowley v. . . 256 Edgar, Thring v. . . 270,271 Edgell v. Haywood . . 137 Edgworth v. Davies . .262 w.Swift . . 213 Edmonds, Prosser v. . . 418 Edmund, Lewis v. . . 215 Edmunds v. Acland . .291 v. Bird . . 159 Edmundson v. Hartley . .281 Edney w. Jewell . . 206 Edsell v. Buchanan . .316 Edwards v. Bowen . . 61 , Brownsword v. . 180, 322 v. Carroll . . 106, 242 , East India Comp. v. 59, 60, 166 v. Edwards . 47, 180, 254 v. M'Leay . . 387 , Moore v. . . 309 Effingham (Lady), Napier v. . 390 (Lord), Lord Portsmouth t>. 102 Egmont (Lord), Cocker v. . . 419 (Earl of), Newton v. . 422 Egremont v. Cowell . • 47 (Earl of) v. Hamilton 337 Elderton, Lansdown v. . .247 Elibank (Lady) v. Montolieu . 30 Ellames, Hardman v. . • 317 Ellice v. Goodson . . 422 Ellington, Burton v. . . 304 Elliot, Bluck v. . .296 Ellis, ex parte . , Dawson, v. Ellison v. Bignold , Cookson v. Elmsley v. M'Aulay Else v. Doughty Elworthy, Young v. Emerson v. Dallison -, Harland v. 186,361, Emmott v. Mitchell England v. Curling (Bank of), Dolder v. v. Downs (Bank of) v. Lunn Ensworth, Kimber v. Errington v. Att.-Gen. Evans, Colclough v. v. Harris , Hughes v. , Lucas v. v. Owen v. Richardson , Robinson v. v. Stokes , Weeks v. Everet v. Prytherych Everitt, M'Kenna v. Every, Butler v. Evett, Dancer v. Evors, Lancaster v. Exeter (Lord), Aston v. College v. Rowland Eyles v. Le Gros Eyre, Asliurst v. • , Grierson v. Eyres, Ashurst v. Eyton v. Eyton Faircloth v. Webb . Fairfax, Agar v. (Lord), Bothomly v. Fairlie, Logan v. Parker v 342, Fairthoroe v. Weston Falconbridge (Lord), Fitzgerald v. YMv. Fallows, Osborn v. . Fane v. Atlee Fanshaw v. Fanshaw Farebrother v. Harris . v. Prattent Farlie, Dowe v. , Logan v. , Lowe v. . Farmer v. Curtis ■ v. Farmer Farnham (Inhabitants of), Windsor Farquharson v. Balfour . v. Pitcher . Farr, Atkins v. PAGE 80 111 . 192 131, 433 185 346 . 181 58 270,271 345, 346 98 33 30 25 419 60 », 77 309 29 234 58 268 432 417 421 58 423 293 241,338 216, 363 C>6 209 124 325 171 345 135 387 145 152 405 373 363 320 274 425 333 264 59 59 204 205 205 424 387 101 378 398 135 xxxn TABLE OF CASES. Farr, Smith «. . Farrant v. Lovel Farrell v. Smith Farrer V. Wyatt Faucet v. Whitehouse Fauconberg (Lord) v. Pierse Faulder v. Stewart . r. Stuart Fawkes v. Pratt Fearnley, Parker v. . , Stainbank r. Feary v. Stephenson Featherby, Ferrewest v. Fell v. Brown . v. Lutwidge Fellows, Att.-Gen. v. Fells v. Read Fenhoulet, Chancery v. Fenn v. Craig Fenning, Halfhide v. Fenton v. Blomer . ■ v. Hughes Fenwick v. Reed Ferrers v. Cherry (Earl), Godkin v. . (Earl), Shirley v. (Lord), Lord Tamworth Ffytche, Bishop of London v. Field v. Beaumont , Flint v. . v. Jackson Fife v. Clayton Filkin v. Hill Filmer, Denny v. Filmore, Dunny v. Finch v. Finch , Tenchard v. , Throckmorton V. v. Lord Winchilsea Fisher, Anthon v. . , Langley v. v. Mee Fisk v. Norton . Fitzgerald v. Burk ■ v. Lord Falconbridge v. Fitzgerald , Spurrier v. . r. Sucomb , Vaughan v. Filzhardinge, Lord Dursley v. 62 Fitzroy, Osmond v. Flack v. Holm Fleming v. Prior v. St. John Fletcher r. Ashburner . , Cottington v. . 309, v. Tollett , Winn v. . 68, 241, 333,360, Flight, Billing v. v. Cook 230, 257, PAGE 406 136 195 29 400 171 54 362 55 180 416 91 195 34, 192 269 120 139 233 413 308 230 223 224 96 72 63, 174 137 229 67, 154 50 . 136 99 390, 391 243, 339 106, 241 377, 378 432 296 96, 138 . 268 372 . 292 403 . 319 320 . 287 379 . 292 62 , 63, 173 155 56 291 . 230 206 351. 381 244 . 269 335, 347 . 172 Flight v. Robinson ■ •, Williams v. Flint v. Field . Flower v. Herbert . , Tourton v. Flyn, Nash v. Foley (Lord) v. Carlon . v. Hill iK Wontner . Foot v. Bessant , Legard v. Forbes, Att.-Gen. v. v. Skelton Ford, Boys v. Fordham v. Rolfe Foreman, Osborne v. Forster v. Vassall , Wilson v. . Fortescue v. Barnett , Dormer v. Forth, Harrison v. Foss v. Harbottle . Foster, Att.-Gen. v. , Bunnet v. . v. Deacon v. Hodgson , Temple v. v. Vassall 263, 278, 287 Foulks, Cave v. Foundling Hospital, Att.-Gen. v Fountain, Coke v. Fountaine, Astley v. Fournier, Bishop of Winchester i Fox, Att.-Gen. v. Foxcroft, University College t Foxhall, Worthington v. Foyle, Venables v. Francis, Burgh v. , Dillon v. . , Whitmore v. Franco v. Bolton v. Franco Frankland v. Overend Franklin, Mason v. Frankly n v. Tuton . Fraser, Lumsden v. Frazer, Earl of Glengall v. Frederick, Child v. . Freeland v. Johnson Freeman, Lewkener v. Freeston, Sewel v. French v. Baron v. Cockerell v. Dear v . Jacko Frost, Jones v. , Stephens v. Fry, Barefoot v. , Mills v. . v. Penn 1 1 TAGE 361 48 50 . 384 181 98 215 . 318 121 48, 401 335 . 168 317, 346 194 421 . 433 290 . 220 432 248, 381 323 . 408 375 . 411 82, 89 251 263 ,288,357 42 . 121 88 207,354 ). 151,152 24 . 238 377 101, 115 138, 152 57 230 . 233 201 . 386 434 . 141 . 406 361, 366 . 118 305 . 148 298 . 199 429 57 373 159, 208 45 168 292 . 218 TABLE OF CASES. XXX111 Fry, Story V. . , Yorke v. Fuller, Parker v. Fulton, Gilmore v. . v. Gilmour , Lowry v. . Fursman, RadclifFe v. . Furtado, Samuda v. Fytclie, Bishop of London v. Gage v. Bulkeley Gainsborough (Countess of) v. Giffoid 153,301, Gait fl.Osbaldeston, 274, 293, 319, 329, Gale, e.v parte Gethin v. Gallant?'. Copeman Galle v. Greenhill . Galley v. Baker Gallini, Pott v. Galton, Mallock v. Gamul, Brereton v. Gannel, Rose v. Garcias v. Ricardo . Gardiner v. Griffith , Hanson v. , Mason v. , Organ v. , Stephenton v. 294, 3 Garey v. Whittingham Garland, Noble v. Garland v. Scott Garner, Hughes v. Garnons, Hughes v. Garrard v. Grinling Garrett v. Hayter v. Noble Garth, Hughes v. r. Ward . Gartside v. Isherwood Gascoigne, Hungate v. Gaskell, Greenough v. Gason, Calvert v. Gates, Bedford v. Gaugain, Whitworth v. Gawler v. Wade Geale v. Wintour Gedge v. Traill Gee, Bradish v. v. Pritchard , Todd v. . . 219, Geering, Jupp v. Gentle, Lewis v. Gerard, Sir John Worden v. Germaine, Earl of Peterborough v. Gerothwohl v. Cochrane Gerrard v. Stanley Gery, Milnes v. Gethin v. Gale . . 272, Ghettoffr. London Assurance Co. 145, PAGE 421 . 270 421 . 386 38G 399, 404 253 . 336 - 221 272, 20, 298 :i95 346 81 370 80 207 245 117 278 356 62 299 316 160 151 115 247 126 237 361 46 361 141 423 86 320 89 108 271 361 163 419 41 203 287 421 339 161 253 239 405 116 279 181 263 308 370 147 PAGE Gibbons, Philips v. . ■ . 266 , Phillips v. . . 247 v. Waterloo Bridge Co. 224 Gibbs, Jesus College, Oxford v. . 374 Gibson v. Bell ... 154 , Child v. . . 279, 342 v. Haynes . . 12 v. Whitehead . • 344 Giffard v. Hort . 76, 113, 200 Gilford, Countess of Gainsborough v. 153, 391, 395 v. Phillips . . .294 Gihon, Williamson v. . . 155 Gilham, Paris v. . .58 Gillespie, Kerr v. . . 388 Gillett, ex parte . . .80 Gilliard, Shuter v. . . 298 Gilmore, Fulton v. . . . 386 Gilmour, Fulton v. . . 386 Girdler, Duke of Dorset v. . 62,170 Glanville, Walter v. . . 305 Glascott v. Co. of Copper Miners of England . . . 65, 330 Glass v. Oxenham . . . 204 Glassington v. Thwaites . 380 Glegg v. Legh . 97, 229, 235, 385 Glengall (Earl of) v. Frazer 361, 366 Glyn v. Duesbury . . 58 , The Queen of Portugal v. . 65 v. Soares . . . 178 Glynn v. Houston . . . 230 Goble, Earl of Carlisle v. . 113 Godbold, White v. . . . 387 Godfrey v. Chadwell . . 280 , Newman v. . 186, 361 v. Turner . . 66 Godkin v. Earl Ferrers . . 72 Godolphin, Child v. . . 309 Godsall, Jones v. . . . 91 Goetze, Carter v. . . 363 Golding, Whitchurch ;•. . 66, 146 , Whitworth v. . . 147 Goldsmiths' Co., Att.-Gen. v. . 211 Gomeldon, Heyman v. . . 335 Gompertz v. Best . . . 369 Good v. Blewitt . . 193, 196 Goodburne, Mason v. . . 62 Goodere (Sir John D.) v. Dean and Chapter of Worcester . Goodess v. Williams Goodman, Jacobs v. r. Sayers . 187, Goodriche, Lord Walsiagham v. Goodson, Ellice v. . Goodwin v. Goodwin , Grice v. Goodyear v. Robinson Gordon v. Bertram v. Gordon v. Pym 249 398 371 304 362 422 68, 75, 388, 389 101 . 401 96 151 . 412 XXXIV TABLE OF CASES. PAGE Gordon v Simpkinson . . 219 v. Smart . . . 141 Gore v. Purdon . . 110 Goreing, Uungerford v. . . 225 Gorman ». McCullock . 242, 339 Gough, Bicknell v. . 313, 315, 347 , Birch v. . . 325 , Collins v. . . . 280 Gover, Carlish v. . . 338 Grace v. Torrington . . 398 , Wilson v. . . 124, 125 Graham , Bond v. . . . 405 v. Coape . . 380 , Macartney v. . . 421 v. Oliver . . 46 Grand Collier Dock Co., Preston v. . . . . 415 Grant v. Grant . . .76, 77 Granville (Lady) v. Ramsden 243, 281 Graves, Bates v. . . 151 v. Griffith ... 56 Gray v. Chaplin 192, 196, 207, 412, 414 v. Minnethorpe . . 302 (Lord), Lord North v. 173 Great Western Railway Co., Robert- son v. ... 436 Greathed v, London & South-Western Railway Co. . . 414,436 Green, Att.-Gen. v. . . 121 — — , Bridgman v. . . 189 , Cartwright v. . . 230 , Jones v. . . 331 v. Pigot . . 172 v. Rutherforth . 263, 265 , Earl of Suffolk e. 63, 173, 230, 253, 357 v. Weaver . . 232 ii. Weston . . . 419 Greenhill, Galle v. . . 207 Greenhouse, ex parte . . 121 , Corporation of Ludlow »..'-. . .20 361 . 361 75, 77, 91,387, 422 242, 338 388 278 200 45 294 110 229 101 171 330 296 276 316 Griffith, Graves v. v. Hood v. Manser v. Wood Greenleaf v. King Greenough v. Gaskell Greenwood v. Atkinson Gregor r. Molesworth Gregory, Hastings v. v. Molesworth , Pelham v. Gregson v. Hindley Grevil, Earl Kenoul v. Grey v. Dickenson . ?'. Hesketh Grice v. Goodwin Grierson v. Eyre Griffin v. Archer , Lingard v. Griffith v. Bateman , Gardiner v. Griffiths v. Hamilton 1\ Rickitts , Wood v. . Grigg's case Grinling, Garrard v. Grove, Michaux v. , Pearce v. Guest, Lewin v. Gunn v. Prior Gunter v. Halsey Guppy, Stevens v. . Guyon, Preston v. Gwynne, Chalie v. . , Phillips v. Gyles, Thomas v. Hadden, Angell v. Haddock v. Thomlinson Haddon, Angel v. , Angell v. Hadfield, Benson v. . 48 Haffey v. Haffey Haggerston, Weston Haig v. Homan Hale, Dell v. . , Slingsby v. Halfhide v. Fenning Halford v. Morgan Hall, Adamson v. v. Austin v. Binney v. Bodily v. Hoddesdon v. Lever v. Noyes . v. Smith , Statham v. , White v. Halsam, ex parte Halsey, Gunter v. v. Smith Hambey, Read v. Hames, Bridget v. Hamilton, Att.-Gen , Earl of Egremont , Griffiths v. v. Houghton v. Royse Hammond ?>. Attwood Hamond, Brown v. Hampsou v. Nicholl Hanbury v. Stevens Handcock r. Shaen . Hand ford r. Storie Hanger, Waller v. Hankey v. Simpson . PAGE 56 30 . 305 379 . 300 92 109, 386 264 . 141 179 . 392 141 269, 370 309 . 113 412 . 426 391 . 153 165 191,326 58 . 193 212, 218, 416 . 149 109 . 101 219 103, 241 308 . 116 96 . 431 193 . 366 62 434, 435 371 . 239 60 . 298 125, 126 . 309 279 245, 281 432 . 143 . 337 300 68, 116 321 80 319 . 425 107 . 200 193,291 . 266 302, 303 TABLE OF CASES. XXXV PAGE Hankey v. Vernon . . . 153 Hannay, Abrahams v. . . 417 Hanne v. Stevens . . . 325 Hannington v. Du Chatel . 155 Hanover (The King of), Duke of Brunswick v. Hanrot v. Cadwallader . Hanson v. Gardiner Harbottle, Foss v. Harding v. Cox v. Hardrett Hardingham v. Nicholls Hardman v. Ellames Hardrett, Harding v. Hardwicke, Bird v. — (Lord) v. Vernon Hardy v. Hull , Yates v. Hare, Rodney v. Hare wood (Lord), Milner v. Harland v. Emerson Harlow v. Crowley Harmer v. Plane Harrington, Brace v. Harris, Berke v. , Evans v. , Farebrother v. v. Harris v. Ingledew , Michell v. , Morgan v. v. PoJlard Harrison, v. Harrison v. Forth Harrison v. Hogg . v. Ridley v. Southcote v. Stewardson v. Wiltshire . Hart, Moore v. Hartley, Edmundson v. Roberts v. Hartpole, Birt r. Hartwell v. Townsend Harvey v. Bignold v. Clayton . v. Harvey , Metcalf v. v. Morris Harwood, Baker v. Hasker v. Sutton Hastings v. Gregory , Nobkissen v. , Richardson v. Hately, Cartwright v. Hatt, Brotherton v. Hawker v. Duncombe Hawkins, Atwood v. Hawkins, Colby v. . 33, 46 423 . 160 408 389, 394 323 . 320 317 . 323 331 . 302 83 . 377 384 77, 239 270, 271 166 162 206 209, 210 309 59 349 . 199, 322, 354 308 184, 219 93, 238, 336", 337 362, 371 323 253 80 . 333 1, 41720 47,49 347, 355 . 281 . 245, 347 113 103, 242, 339 417 . 335 . 411,412 . 166 228 . 46, 157, 399 141 . 388 344 42, 409, 411, 417, 430, 433 277, 361 323 110 207 . 420 Hawkins v. Holmes Haworth, Jackson v. i Haycock v. Haycock Hay craft, Partridge v. Hayes, Dott v. Hayes, Lord Ranelagh v. Hayne v. Hayne , Mitchell v. Haynes, Gibson v. . Hayter, Garrett v. Haythorne, Makepeace v. Haywood, Edgell v. , Oliver v. Head v. Head . Head, Randal v. Heafield, Arnold v. , Scholefield v. Healey, Hodle v. Heard, Berry v. Hearn, Holden v. Heath, Att.-Gen. v. v. Percival Heelis, Att.-Gen. v. 24 Heinzelman, Boyd v. Helbut v. Philpot Helmuth, Martinius v. i Heming, King v. Henchman, East India Co. Henderson, Wilkinson v. Henkle v. Royal Exchange Co. . Henley v. Stone Henshaw, Atkinson v. Hepburn v. Durand Herbert, Flower v. v. Montagu , Lord Teynham v. Hercy v. Dinwoody Heriz v. Riera Heme, Ogilvie v. Herring v. Cloberry Herriott, James v. Hesketh, Grey v. Hester v. Weston Hewart v. Semple . . Hewitt, Brook v. ■, Pearse v Heyman v. Gomeldon . Hibbert v. Rolleston Hichens v. Congreve Hicks v. Raincock Hide, Whitchurch v. Hiern v. Mill Higden, Brown v. . Higgins v. York Build. Co. Higginson, Clowes v. Higgs, Rush v. . Hildyard v. Cressy 293, Hill, Filkin v. , Foley v. . PAGE 309 125, 126 193 . 377 370 . 172 100, 392 59 12 423 . 272 137 43 28 369, 371 350 424 316 162 375 . 266 208 , 121, 195, 410 . 292 241 59 342 v. . 45 427 Assurance . 151 . 326, 426 159 368 384 . 356 170 317 . 342 244 . 362 64 . 229 . 209, 248 . 237 130 . 212 . 335 138 . 408 253 . 170 41 74, 337 148 . 151 . 195 294, 351, 355 68, 390, 391 318 c2 XXXVI TABLE OF CASES. Hill v. Ledbrook . v. Neale . , Pitt v. , Powell v. v. Smith , Taylor v. v. Thompson , Turner v. . Hillacre, White v. . Hills r. Nash . Hilton v. Barrow v. Lawson Hincks v. Nelthrope Hind v. Dods . , Foreman v. Hindley, Gregson v. Hitchings, Wood v. Hitchins v. Lander Hirst v. Pierce Hoare, Claridge v. V. Parker V. Peck Hobbs, Lane v. . Hodder v. Watts Hoddesdon, Hall i\ Hodge, Bowden v. Hodgkin v. Longden Hodgson v. Butterfield , Foster v. . , Pringle v. Hodle v. Healey Hodson v. Ball . Hogan, Stratford v. Hogg, Harrison v. v. Kirby Hogue v. Curtis Holcombe, King r. , Lautour v. Holden r. Hearn Holder, Newman v. Holdsworth, Mayor & f. Dartmouth v. . Hole v. Thomas Holland v. Baker , Bromley v. V. Prior ■ v. Sprowle Hollingshead's case Hollis ?•. Carr , Humphreys v. v. Whiteing Holm, Flack v. Holmes v. Baddeley ■ , Hawkins v. Holt, Earle v. Homan, Haig v. Honeywood v. Selwin Honor, Crosseing r. Houy v. Hony '. Hood, Griffith v. 522 PAGK . 418 276 29G 391 124 223 1G2 416 . 418 427 98 61, 264 . 228 366 . 433 45 . 8, 358 274, 318 . 377 331 347 251 109 303 62 173 219 377 251 151 316 111 361 253 161 292 372 179 375 222 orporation of . 361 163 . 425 15'2 4C0 346 316, 337 40 71, 435 310 56 361 309 . 250, 420 101 360 . 189 315, 318, 350 30 356 Hook v. Dorman Hornby r. Pemberton , Tarleton v. Home, Swinford v. Horseman, Newland r. Horsfall, Douglas v. Horsley, Broom t*. Hort, Giffard v. Horton v. Maltby . Horwood v. Schmedes — , Wright v. Hotham (Lord), Att.-Gen. Hott, Walworth v. , Houghton, Hamilton, v. v. Reynolds v. West PAGE 66, 146, 256 377 179, 279 393 . 298 . 203, 416 342 76, 113, 200 . 170 96 151 276 412 . 68, 116 49, 157 102 420 Houlden, Allan v Houlditch v. Marquis of Donegall, 87, 118, 288 , Stephenson v. Houston, Glynn v. How v. Best Howard (Lord) v. Bell , Wright v. Howe (Lord), Debbieg v. v. Duppa 61 230 . 223 44 68, 387 222, 227 343, 346 (Earl and Countess of), Lepine v. 32 Howell v. Waldron Howells, Jones v. Howlett v. Wilbraham Huddleston, Miller v. , Ord v. Huddlestone v. Asbugg Hudson v. Bartram ■ v. Hudson V. Maddison , Moore v. v. Twining Huet v. Lord Say and Sele Huggins v. York Build. Co Hughes, Arthur v. v. Biddulph v. Evans , Fenton v. v. Garner r. Garnons V. Garth Hughson v. Cookson Huguenin v. Baseley Hull, Adamson v. , Hardy v. . Hullett, Sharp ». v. The King of Spain Humble r. Shore Humphreys v. Hollis v. Humphreys — v. Incledon Hunby v. Johnson Hungate v. Gascoigne 292 91 . 125 433 269, 329,354 298 . 141 256 . 400 55 . 424 86 . 33,79, 291, 336 405 . 362 29 . 223 46 . 361 320 . 428 151 69 83 81 33 404 71,435 74, 148 . 238 296 . 271 TABLE OF CASES. XXXV11 Hungerford v. Goreing . Hunsdon's (Lord) Case Hunter, Marsh v. , Pickford v. Huntingdon (Earl of) v. Countess of Huntingfield (Lord), Holder v. Hutchinson, Durand v. v. Townshend , Wray v. Hyat, Snell v. Hyde, Bell v. . , Salvidge v. v. Whitfield Hyliard v. White Incledon, Humphreys v. Ingilby, Mocatta v. , Walburn v. Ingledew, Harris v. Irvine r. Young Irving v. Thompson Isherwood, Gartside v. . Ivy v. Kekewich PAGE 225 135 376 278 295 362 290, 357 428 74, 359 125 126 187, 209, 212 50 .351 238 401, 414 181 199, 322, 354 302 398 108 226, 229 125, 228, 320, Jacko, French v. Jackson, Field v. v. Haworth v. Leaf v. Parish , Richards v. v. Rowe . 319, , Thorpe v. Jacob v. Lucas Jacobs v. Goodman James v. Herriott , Price v. v. Sadgrove Janson v. Solarte Jarrard v. Saunders Jauncy v. Sealey . . 205, 300, Jayne, Burton v. Jeanes, Att.-Gen. v. Jefferies Ld. Chan. ?'. Witherly Jekyll (Sir Jos.), Lord Coningsby v. Jemineau, Burrows v. Jenkins, Perry v. Jennens, Blenkarne v. Jenner, Att.-Gen. v. Jennet v. Bishopp . Jenney, Offley v. Jennings v. Merton College v. Moore . Jepson, Blackburn v. Jermy v. Best . Jerrard v. Sanders . Jersey (Earl of), Williams v. Jesus College, Oxford, v. Gibbs Jewell, Edney v. Johnes, Lloyd v. . . 87, 88, Johns, Pierce v. 152, 373 136 126 288 387 335 321 427 401 371 64 218 313 358 321 301 179 43 7 254 298 315 323 249 176 124 387 323 72 312 361 47 374 206 200 381 Johnson, Alsager v. v. Atkinson , Brandon v. , Bridge v. v. Curtis . , Freeland v. , Hunby v. , Kellawny v. , Newdigate v. v, Northey v. Peck . Johnston, Carew v. , Reynolds v. Jones, Ambury v. v. Basset , Blake v. , Canham v. . . Coysgarne v. v. Davis v. Frost . r. Godsall v. Green V. Howells . v. Jones v. Kenrick - v. Maund v. Meredith v. Moore v. Morgan , Morphett v. v. Powell v. Saxby . r. Earl of Strafford v. Thomas , Wellbeloved v. v. Wiggins , Wilson v. Jongsma v. Pfiel Jordan r. Sawkins Joseph v. Tuckey Jostling v. Karr Joy v. Campbell Jupp v. Geering Juxon, Dr. Pary v. . Kambe, Williams v. Karr, Jostling v. Kay v. Marshall , Wood c. Kaye v. Moore . v. Wall Keene, Westhead v. Keighley, Weston v. Keighly, Young v. Kekewich, Ivy v. Kelips v. Paine Kellawny v. Johnson Kelly, Sloman v. Kelsall v. Bennet . PAGE . 373 166 . 218 110 . 302 305 . 296 431 . 263 116,118 95 45 . 212 64 78 206 . 162 280 309, 347 146, 159, 208 91 331 91 67,68, 77, 100, 146, 219, 337 103, 241 . 223, 364 234, 333 400 . 428 141, 310, 312 29 379 . 248 320 7, 120, 196 . 365 358 . 124 309 . 273 434 80 239 71 144 . 434 344 . 165 209 . 364 161 . 207 102, 104, 105 . 229 95 . 431 360 . 320 XXXV111 TABLE OF CASES. Kelsey, Kemp v. , Sanders v. Kemp v. Kelsey Kendall, Needier v. Kennard v. Moore . Kennedy v. Daly Kenoul (Earl) v. Grevil Kenrick v. Clayton , Jones v. . Kensington (Lord) v. Mansell Kent, Boddy v. v. Kent Kenyon, Beasley v. . Kerr v. Gillespie v. Rew Kerrick v. Bransby v. Saffery Kevte, Price v. Kilcourcy (Lord) v. Ley Killigrew v. Killigrew . Kilmorey (Lord) v. Thackeray Kilner v. Leach Kimber v. Ensworth Kinaston, Woodcraft v. Kinder, Routh v. , Williams v. King, Amhurst v. v. Burr , Greenleaf v. v. Heming v. Holcombe v. King v. Marissal v. Martin . , Maun v. , Sanders v. v. Tullock Kingscote v. Bainsby Kingsly, Roberts v. Kingston (Duchess of), Meadows v. 281, 300,307, 322 (Earl of) v. Lady Pierepont 183 PAGE 355 . 214 355 . 338 . 149 113, 268, 294 . 294 247 103, 241 222, 227 193 96 . 424 388 66, 398 300 . 424 108 68, 383 266 . 164 404 419 61 193 81 365, 367, 377 233 . 361 342 356. 372 . 147, 158 149, 366 . 187, 188 . 247 . 270, 271 75 388 105 Kinnersley v. Simpson Kinsey v. Kinsey . Kinsman v. Barker Kirby, Hogg v. Kirk v. Clark . v. Webb Kirkley v. Burton Kirkman v. Andrews Knapman, Cropper v. Knapp, Chamberlain v. Knebell v. White Knight v. Knight v. Matthews , Munday v. Knott, Perry v. Knowles, Nicholson v. Knye v. Moore Kuffin, Roberts v. 270 280 302 161 203 . 312 57, 384 346, 347 . 76, 185 . 236 142 190, 204, 207 74 49 429, 431, 432 166 139, 256 302 Kynersley, Marchioness of Ormonde v. 137 Lncon v. Lacon 312 Lamb, Burges v. 137 Lambe, Williams v. 319 Lambert v. Ashcroft 393 Lancaster v. Evors 216, 363 ... T 1 1-. n w «*■*-. r\ 28 V, X I1UI 11LU11 ■ Lander, Hitchins v. 274, 318 , Lloyd v. 187 Lane v. Hobbs 109 369 Langley v. Fisher 372 Langstaffe i\ Taylor 302 Langston v. Boylston 59 , Robeley v. 10 Lansdown v. Elderton . 247 Larpent, Richardson v. 413 Lathropp v. Marsh 159 Latouche v. Lord Dunsany 101 85 115 Lautour v. Holcombe 179 Law v. Law 155 427 v. Rigby 193 Lawrence, Baldwin v. . 196 414 . C-viifV» 162 Lawson v. Barker 198 , Hilton v. . 61 264 Lawton, Mayor of Colchester v. 25 Leach, Kilner v. 404 Leadbeater, Dobson v. 293 ,385 Leaf, Jackson v. 288 Leake v. Leake 56 , Thompson v. 138 Lecesne, Lynch v. 358 Lechmere v. Brasier 116 138 Lechmore, Bulstrode ». 335 Lecras, Parkinson v. 281 300 Ledbetter v. Long 398 Ledbrook, Hill v. 418 Lee, ex parte . 268 , Bennet v. 102 ,390 v. Carter . 196 . Darthez v. 401 v. Pascoe . 247 249 , Mayor &c. of Rochester v. 4 7, 49 , Wallwyn v. 319 , Williams v. 154 ,298 , Wynstanley v. 168 Leech v. Leech 156 v. Trollop 324 Leeds (Duke of) v. Corporation of New Radnor 139 137 335 Lsgard v. Foot . Legg, Amers v. 267 Legh, Clegg v. 97 , Glegg v. . . 229 235 385 Le Gros, Eyles v. 124 TABLE OF CASES. XXXIX PAGE Leicester (Corporation of), Att.-Gen. v. 431 (Earl of) v. Perry . 297 Leigh, Bedford v. . . 193, 198 v. Leigh , Parker v. , Stubbs v. v. Thomas Leighton, Carleton v. — v. Leighton -, Ovey v. 361 Le Neve v. Le Neve V. Norris Leo, Davis v. Leonard v. Leonard Lepine v. Earl and Countess Lequesne, Chicot v. L'Estrange, Carleton v. Le Texier v. Margravine of Lethbridge, Tomkin v. Lever, Hall v. , Page v. Leving v. Caverly Levy, Mayor &c. of Londo Lewellen v. Mackworth Lewen, Sellon v. Lewin v. Guest Lewis v. Billing v. Bridgman . , Cathcart v. v. Edmund . v. Gentle v. Naugle , Smithier v. v. Lord Zouche Lewkener v. Freeman . Ley, Lord Kilcourcy v. Lichfield (Earl of) v. Bond Lindo, Wynniat v. . Lindon, Chetwynd v. Liney v. Witherly . Lingard v. Griffin Lingen v. Simpson . Lingood v. Croucher — v. Eade Linton, Rogers v. Lisset v. Reave Little, Strode v. Littledale, Lord Lonsdale v Liverpool (Corporation of), Livesey v. Wilson Lizardi, Schneider v. Llewellyn, Thomas v. . Lloyd v 363,378, 101, 345, Howe 187, Anspach 247, 434, v. . 25, 222, 227, 68, 230, 187, v. Douglas — v. Johnes — v. Lander — v. Lloyd — v. Loaring — v. Smith Bolton v. 46, 87, 88, . 192, 305,419, 293 97 78 196 273 168 379 323 104 136 362 32 304 394 187 249 J 435 293 ! 124 45, 254 I 337 355 141 | 413 I 337 ! 206 215 405 199 j 148 j 425 148 383 360 434 253 32 296 141 304 304 34 186 263 187 362 387 403 377 125 212 200 187 12 196 433 Loaring, Lloyd v. . Lockwood, Andrews, v. Logan v. Farlie Loker v. Rolle London (Bishop of) v. Fytche , Pawlet v. v. Web (City of) v. Mitford v. Perkins , Stafford v. PAGE 192, 196 239 205, 405 219 221,229 43 164 25 88 . 327 — (Mayor &c. of) v. Levy 25,45,222, 227, 254 London Assur. Co., Ghettoff v. 145, 147 London andBirm.R. Co., Semple v. 402, 403 , Spencer o. 402 London and S. Western R. Co., Greathed v. . . 414, 436 Long, Ledbetter v. . . 398 , Paterson v. . . 434 v. Yonge . . .417 Longden, Hodgkin v. . 219 Longman v. Calliford . . 68 v. Winchester . 161 Lonsdale (Lord) v. Littledale . 187 Lord v. Wormleighton • .195 Lord Keeper v. Wyld . 324 Lovel, Farrant v. . . 136 Lowe v. Farlie . . . 205 v. Williams . . 57 Lowgher v. Lowgher . . 264 Lowndes v. Cornford . . 166 w.Taylor . 81,273,329 Lowry v. Fulton . . 399, 404 Lowten v. Mayor and Commonalty of Colchester . . .239 , Parkhurst v. 333, 335, 360 , Upton v. . Lowther v. Carlton v. Lord Lowther . Loyd v. Mansell Lubbock, Robertson v. Lucas, Att.-Gen. v. v. Calcraft v. Evans , Jacob v. . — v. Lucas . 374 323 139 113,340 342, 345 . 360, 362 . 145 234 . 401 376 Luckett, Barney v. . . 157 Ludlow (Corporation of) v. Greenhouse 20 v. Lord Macartney . 104 Lumley (Lord), Protector v. . 235 Lumsden v. Fraser . . . 406 Lund v. Blanshard 208, 217, 401, 415 Lunn, Bank of England v. . 25 Luscombe, Northleigh v. . 222, 371 , Penvill v. . 297, 302 , Reynell v. . . 304 Lushingtou v. Boldero . . 137 v. Sewell . . 124 Luttrell, Cotton v. . . . 189 Lutwidge, Fell ». . . 269 xl TABLE OF CASES. Lynch v. Lecesne . Lyon i\ Mercer , Murriet v. Lytton v. Lytton Macallum v. Turton Macartney v. Graham . (Lord), Ludlow v. M'Aulay, Elmsley v. Macaulay, Shackell v. 209, 21 , Thorpe v. Macauley, Shakell v. , Thorpe v. . 22 Maccabe, Wilmot v. Macclesfield (Earl of) v. Davis M'Cullock, Gorman v. M'Dougal v. Purrier Macdougall, Dowlin v. M'Enzie, Carleton v. M'Gennis, ex parte Macgregor v. East India Comp. Machado, Mendizabel v. ■ — , The King of Spain v Machell, Burgony v. Mackay, Cam])bell v. , Somerville v. M'Kenna v. Everitt Mackintosh, Scott v. , "Wellington v. Macklew, Agar v. . , Pitt v. Mackmath, Ryan v. Mackown, Baldwin v. 77. 239 Mackreth, Motteux v. — — — — — , Waring v. Mackworth r. Clifton , Lewellen v. v. Marshall M'Leay, Edwards v. Macmahon v. Upton M'Namara v. Arthur Macnamara, Williams v. M'Neill v. Cahiil Maddison, Hudson v. Maden v. Veevers Madge V. Brett Magdalen College v. Athill — — (President, &c Sibthorp Main v. Melbourn . Mair, Utterson v. Maitland, Mazzaredo v. — v. Wilson Makepeace v. Haythorne Malachy, Mare v. Malins, Wheeler v. Mallock r. Galton Malpas v. Ackland Maltby, Horton v. , Meux v. PAGE 358 124 126 106, 242 230 421 104 185 227 385 173 256 328 139 339 388 186 126 80 328 329 178 34 7 250 362 423 377 308 141 384 151 337 394 219 313 337 330 387 408 55 137 104 400 361 279 210 , 221, 173, , 253, 242, 173, 177, 216, 57, , 245, G8. of) v. 320, 25 309 185 383 355 272 416 81 278 422 170 192 PAGE Mammon, Coote v. . . 323 Manaton v. Molesworth . . 245 ; Mander, Crowfoot v. . 84 Manering, Cotton v. . . 263 Manners v. Rowley . . 217 1 Manning v. Mestaer . . 154 v. Thesiger . . 192, 196 | M;inningham o. Lord Bolingbroke 149 Mansell, Lord Kensington v. . 222, 227 | , Loyd v. . . 113, 340 1 Manser, Griffith v. . . 305 I Marchant, Roberts v. . . 435 . Mare v. Malachy . . 416 Marissal, King v. . . 149, 366 Marke v. Turner . . 12 | Marlborough (Duke of), Neate v. . 366 I Marriot v. Marriot . . 301 | Marriott ». Marriott . . 403 I v. Tarpley . . . 400 ' Marsack, Morgan v. . . 58, 59 • Marsh v. Hunter . . 376 ! , Lathropp v. . . 159 , Pool v. . . 399 v. Robinson . . 10 Marshall, Kay v. . . 344 , Mackworth . . 330 v. Mellersh . . 372, 373 Martin, ex parte . . .80 , Brown v. . 78, 79, 90, 91 , Cook v . . . 389 , Kingfl. . . 187,188 v. Martin . . .346 v. Mitchell . . 141 v. Nichols . . .227 , Powell v. . . 113 , Style v. . . 113 , Whitley v. . . 46 Martineau v. Cox . . . 364 Martinius v. Helmuth . . 59 Martyn, Cook v. . .41 Mason v. Franklin . . 434 r. Gardiner . . 151 v. Goodburne . . 62 v. Wakeman . . 363 Masterman, Byde v. . . 373 Masters v. Barnes . . . 405 Mattheson, Pickard v. . . 110 Matthews, Knight v. . . 74 0. Walwyn . . 303 Maud v. Aclom . . .211 Maugham, Sweet v. . . 161 Maule v. Duke of Beaufort 207, 244, 434 Maun v. King . . . 247 Mannd, Jones v. . . 223, 364 Maunder, Steele v. . . 424 Maundrell v. Maundrell . . 158 Mavor v. Dry ... 383 Mav, Chancey r. . . .196 -, Plummerr. . 223,276,277 v. Selby . . .432 TABLE OF CASES. xli May, Wharton v. Mayer, Wright v. Mayhew, Waters v. Mayhow, More v. Mazzaredo v. Maitland Meadows v. Duchess of K Meal, Wych v. Meath (Earl of), Weaver Medlicott, Ainslie v. Mee, Fisher v. Meggott v. Meggott Mehrtens v. Andrews Meinertzhagen r. Davis Melbourn, Main v. Melhuish, Saltern v. Meller v. Minet Mellersh, Marshall v. . Melling v. Melling . Mellish, Baker v. v. Brooks . , Merrewether v. , Merrywether v. Mendez v. Barnard Mendizabel v. Machado Mercer, Lyon v. Merchant Tailors' Comp., Meredith, Beaumont v. , Jones v. Merrewether v. Mellish Merry, Day v. . Merrywether v. Mellish Merton College, Jennings Mestaer, Manning v. Metcalf v. Harvey . . Metcalfe v. Metcalfe Meux v. Bell v. Maltby Michaux v. Grove . Michell v. Harris Middleditch v. Sharland Middleton, Att.-Gen. v. , Backhouse v. Milbank v. Collier Mill, Hiern v. Millard's Case Miller, Brickwood v. v. Crawford v. Huddleston , Rutherford v. v. Walker v. Warmington Milligan v. Mitchell Mills, Boyd v. . v. Campbell v. Fry Milman, Simon v. . Milner v. Lord Harewood , Taylor v. PAGE 302, 303 335 206 . 321 383 ingston, 281,300, 307, 322 224 . 333 126 292 144 . 245 431 . 309 135 41 372, 373 28 218, 253 425 327, 385 85 173 173, 329 124 Att.-Gen. v. 214, 341, 359 190, 192 234, 333 327, 385 137 85 387 154 166 181,238 . 167 192 179 308 . 303 . 120 86 410 41 320 . 384 213, 427 . 433 82 . 212 141 8, 390, 412 378 61, 215 292 . 273 77, 239 247 38 Milnes v. Gery . Milsington (Lord) v. Portmore Minchin, Whitcombe v. Minet, Meller v. Minnethorpe, Gray v. Minshull i\ Lord Mohun, 86, 87, , Mordaunt v. . Mitchell, Daniel v. . v. Dors . , Emmott v. 342, v. Hayne , Martin v. . , Milligan v. . 388, , Richardson v. Mitford, City of London v. , Newhouse v. Mocatta v. Ingilby Mohun (Lord), Minshull v. S6,87 Mole v. Smith . Molesworth, Gregor v. , Gregory v. , Manaton v. Mollineux v. Powell Monk v. Porafret . Monnins v. Monnins Montagu, Herbert v. Montague (Lord) v. Dudman Monteith v. Taylor . Montolieu, Lady Elibank v. Montriou v. Carrick Moodaly v. Moreton Moons v. De Bernales Moor v. Blake . i'. Rowe v. Somerset v. Welsh Copper Co. Moore v. Black v. Edwards . v. Hart . v. Hudson . , Jennings v. , Jones v. , Kaye v. , Kennard v. , Knye v. r. Moore v. Usher , Van Sandau v. Mordaunt v. Minshull More v. Mayhow Moreton, Moodaly r. Morgan v. -, Burney v. . , Halford V. v. Harris , Jones v. v. Marsack , Mussel v. . v. Morgan v. Scudamore PAGE 308 40 82 41 302 116, 118 118 288, 289 160 345, 346 59 . 141 390, 412 305 25 . 110 401, 414 ,110,118 69, 77 242, 338 278 . 245 136 185 233 . 356 155, 228 83 30 58 66, 221 . 393 144 183 263 289,290 144 . 309 347, 355 55 152,323 400 209 . 149 139, 256 110 59 197, 358 . 118 321 66, 221 116, 288 71, 96 116 184, 219 428 58, 59 . 113 356 . 239 xlii TABLE OF CASES. Morgan, Turner v. Morgell, Roche v. . Morphett v. Jones Morrall v. Pritchard Morrett v. Western Morris, Devaynes v. , Dyson v. , Harvey v. , Shepherd v. Morrison v. Arnold Morse v. Buck worth v. Sadler Mortimer, Bunyan v. v. West . Mose, Corporation of the v. Moses, Att.-Gen. v. Mosse, Archer v. , Trevanian v. Motteux v. Mackreth Mountford v. Scott Mousley v. Basnett Mullins, Alexander v. v. Simmonds Mumford, Randall v. Munch v. Cockerell Munday v. Knight . Mundy v. Mundy Munoz v. De Tastet Muntz, Doyle v. Murray v. Palmer . , Rundell v. v. Shadwell Murriet v. Lyon Musgrave, Balls v. v. Newton v. Vick Mussel v. Morgan . Mussell v. Cooke Mussendine, Quilter v. Mutter v. Chanvell Myers, Duke of Norfolk , Smith v. Mytton, Cressett v. PAGE 141 304, 307 141, 310, 312 408 280 95, 372 404 228 47 62 232 194, 195 126 29 Sons of Clergy . 402 24, 195, 256 300 . 320 394 . 323 292 . 428 388 79,81 430 49 144 . 399 273 . 151 162 287, 288,289 126 48 420 420 . 113 309 . 273 316 169 29 45 Naish, Tourville V. Napier v. Lady Effingham . Nash, Baring v. v. Flyn , Hills v. Naugle, Lewis v. Neal v. Robinson . Neale, Hill v. . Neate v. Duke of Marlborough Neave, East India Co. v. Needier v. Kendall Nelson v. Oldfield . . v. Ponsford Nelthrope, Hincks v. Neve v . Weston 321 . 390 48 98 427 . 199 105 276 366 . 232 338 . 300 52, 365 . 228 291 PAGE Neville, Parsons v. . . 195 Nevinson v. Stables . . 109 Newcombe, Att.-Gen. v. .67 Newdigate v. Johnson . . 263 v. Newdigate . . 288 New Elme Hospital v. Andover 171 Newenham, Devonsher v. . 253, 256 Newhouse v. Mitford . . 110 Newland v. Horseman . . 298 Newman v, Godfrey . . 186, 361 v. Holder . . 222 v. Payne . . 302 v , Wallis . . 269 New Radnor (Corporation of), Duke of Leeds v. 139 New River Co., Adair v. . 192, 197 Newsome v. Bowyer Newton v. Earl of Egmont , Musgravefl. v. Preston Nicholl, Att.-Gen. v. , Hampson v. , Scott v. Nicholls, Hardingham v Nichols, Martin v. . , Stewart v. Nicholson, Barfield v. v. Knowles Nobkissen v. Hastings Noble, Barnett v. v. Garland , Garrett v. , Richards v. . Noel, Ord v. Norfolk (Duke of) v. Myers (Duchess of), Earl of Peter- borough v. 87 Norman, Tappen v. . • 124 Norris, Le Neve v. . .101, 104 North (Lord) v. Lord Gray . 173 v. Earl and Countess of Straf- ford . . .138 25 422 . 420 312 168 425 . 425 320 . 227 74 . 162 166 . 344 68 . 237 86 162 101, 104, 108, 110 . 169 Northam, ex parte Northey, Johnson v. v. Pearce Northleigh v. Luscombe Norton, Fisk v. v. Turvill Norway v. Rowe Norwich (Mayor of), Att.-Gen. v Nosworthy, Seymour v. Noyes, Hall v. Nugent (Lord), Stewart v. Nunn, Penfold v. Nutt v. Brown . Oakley, Thomas v. Obee, Ridley v. Obeston v. Banister O'Brien, Barrington v. 116, 254 80 118 . 157 222, 371 403 . 364 373 48 . 279 371 . 328 208, 250, 420 196 160 387 . 429 108 TABLE OF CASES. xliii O'Brien v. O'Connor , Reed v. Ocklestone v. Benson O'Connor, O'Briens. Offer, Barnes v. Offley v. Jenney Ogilvie v. Heme Oglender, Att.-Gen. v. Oldfield, Nelson v. . Oldham v. Oldham Oliver, Ball v. , Graham v. v. Haywood Omychund v. Barker Onslow v. ■ Stoughton v. Ord, Brandlyn v. v. Huddleston v. Noel . 101 v. Williamson O'Reilly v. Thompson . Orford (Lord), Lord Walpole v. Organ v. Gardiner Ormonde (Earl of), Clarke v. 303, 304 (Marchioness of) p.Kynersley 137 Osbaldeston, Gait v. 274, 319, 329, 346 Osbaldiston v. Simpson PAGE 102,241 430 272, 274, 318 . 102, 241 108 124 244 24 300 149 159 46 43 10 136, 159 295 280, 323 269, 329, 354 104, 108, 110 . 329 309 41 115 Osborn v. Fallows . Osborne v. Foreman ^.Usher . 425 433 86, 112 155 . 196 386 . 325 361, 363, 378, 379 30 Osmond v. Fitzroy Overall v. Peacock Overend, Frankland v. Overton v. Banister Ovey v. Leighton Owden v. Campbell Owen v. Curzon . • 79 , Evans v. . • .58 v. Owen ... 29 , Parry v. 145 Owens v. Smith . . 131 Oxenham, Glass v. . . 204 Oxford and Cambridge Universities v. Richardson . . 25 Page, Apperley v. . v. Lever . , Rose v. v. Townsend Pain v. Paine, Kelips v. Palk v. Lord Clinton , Tomlins v. Palmer's Case Palmer, Andrews v. , Atkins v. ■ ». Lord Aylesbury . , Murray v. Pannel v. Taylor Panther, Att.-Gen. v. 401,415 293 . 425 177 . 126 95 41, 67, 68, 389 110 . 266 . 174 174 . 174 151 56 31 Parfitt, Batten v. Paris v. Gilham Parish, African Co. v. , Jackson v. . Parker v. Alcock , Armsted v. . , Blythmore v. Carter v. Constable v. Fairlie v. Fearnley v. Fuller , Hoare v. v. Leigh , Penrice v. , Wake v. Parknurst, Att.-Gen. v. v. Lowten Parkinson v. Lecras , Willis v. Parkyns, Lord Rancliffe v. Parr, Att.-Gen. v. . Parrot v. Bowden Parry v. Owen , Wilkinson v. Parsons v. Neville . v. Spooner Partington v. Bailey , Candler v. Partridge v. Haycraft v. Usborne Pary (Dr.) v. Juxon Paschal, Lord Carteret v. Pascoe, Lee v. Paterson v. Long v. Wellesley Patterson v. Slaughter . , Lord Thanet v. Patteson, Earl of Thanet v. Pawlet v. Att.-Gen. v. Bishop of London Paxton's Case Paxton v. Douglas Payne v. Compton , Newman v. Paynter, Adams v. Peach, Baldwin v. . Peachie ». Twycrosse Peacock v. Duke of Bedford , Done v. , Overall v. . — i , Penne v. Pearce v. Grove , North ey v. v. Pearce Pearse v. Hewitt Pearson, Att.-Gen. v. v. Belchier 192, Peat, Tittensou v. Peck, Hodgson v. . PAGE 410 58 334 . 387 305 . 298 354 . 398 77 . 373 180 . 421 . 322, 347 97 . 183, 230 30 31 333, 335, 360 281, 300 . 110 361 . 214 265 . 145 . 179, 430 . 195 413 . 407 377 . 377 104, 106, 108 71 115 247, 249 434 . 436 102, 386, 392 167 60 33 43 . 367 195, 231, 360 426 . 302 . 426, 427 . 317 253 . 386 248 . 196 126 . 392 157 28 212 . 407 196, 245, 337 304 . 251 xliv TABLE OF CASES. Peck, Johnson v. v. Peck Pelham v. Gregory Pemberton, Hornby r. . Pen fold v. Nunn . Penn r. Lord Baltimore , Biggs v. , Fry ?'. V. Peacock Pennington v. Alvin ■ v. Beechey Penrice v. Parker . Penson, Plunket v. Penvill v. Luscombe Pepler, Taunton V. Percival, Heath v PAGE 95 . 373 200 377 208, 250, 420 33 . 431 218 12G 27, 30 . 321 . 183, 230 320, 352 . 207, 302 304,307 . 208 - (Lord and Lady) v. Phipps 161 Periam, Ward v. Perkins v. Bradley , Brown v. 187, 304 418 349 , City of London v. . 88 Perrat v. Ballard . . 335 Perrot v. Perrot . . . 136 Perrott v. Bryant . . 429 Perry v. Jenkins . . .315 v. Knott . . 429, 431, 432 , Earl of Leicester r. . . 297 v. Phelips ... 42 , Sidney v. . • 281 Peterborough (Earl of) ». Germaine 279 ■ ■ v. Duchess of Norfolk . . .87 Peters, Pinkus ». . 76, 91, 418 Petre (Lord) v. Univ. of Cambridge 267 v. Petre . . . Pettiward v. Prescott Pfiel, Jongsma v. Phelips v. Caney , Perry v. Phelp, Calverly v. . Phelps, Sigel v. v. Sprowle . Philips v. Carew v. Derbie . v. Gibbons Phillipps v. Clark . Phillips, Clagett v. V. Gibbons . , GifFord r. . v. Gwynne Philpot, Helbut v. Phipps, Lord and Lady v. Steward , Tucker v. . Pickard, ex parte r. Mattheson Pickerell, Aggas v. Pickford v. Hunter Pickin, Earle v. Pierce, Hirst v. Percival v 324 . 318 124 . 371 42 . 203 30 91, 303, 307 . 63,174 95 266 82 362 . 247 . 294 391 241 iai 184 135 31 110 251, 316 . 278 46 . 377 PAGE Pierce v. Johns . . 381 v. Thomas . . .61 Piercy v. Roberts . . 180 Pierepont (Lady), Earl of Kingston v. 183 Pierse, Lord Fauconberg v. . 171 Pieters v. Thompson . . 292 Piggott v. Williams . . 98 Pigot, Green v. . .172 Pilkington v. Wignell . 74, 245 , Mayor of York v. . 169, 210 Pincke v. Thornycroft . 152, 295 Pinkus v. Peters . . 76,91,418 Pit v. Cholmondeley . . 302 Pitcher v. Rigby . . .287 , Farquharson v. . 398 Pitt v. Earl of Arglass . 243, 339 v. Hill ... 296 v. Macklew . . 57, 384 v. Creditors of Duke of Richmond 96 , Thorn v. v. Watts . , Weeks v. Plane, Harmer v. Platel v. Cradock . , Cuff v. . Plomer v. Plomer . Plumbe v. Plumbe Plume v. Beale Plummer v. May Plumtree, Att.-Gen. v. , Wright v. Plunket v. Brereton v. Penson Plunkett v. Cavendish . Plymouth (Countess of) v. Bladon . Podmore v. Skipwith Pollard, Harris v. Pomfret, Monk v. . Ponsford, Nelson v. Pool v. Marsh Poole v. Att.-Gen. v. Poole . . Poore v. Clarke Pope r. Bish Popham, Portman v. Porter v. Cox Portland (Duke of), Wallis v. -, Welby v 85 383 . 211 162 . 430 177 126 . 186, 211 . 300 223, 276, 277 31, 120 222, 229 . 137 . 326, 352 296 293 386 93, 238, 336, 337 185 52, 365 . 399 33 . 273 43 . 281 125 . 80, 81 222, 227, 230 343 125 40 Portman v. Popham Portmore, Lord Milsington v. Portsmouth (Lord) v. Lord Effingham 102 Portugal (The Queen of) v. Glyn . 65 Potman, Doble v. . . 10, 240 Pott v. Gallini . . . 117 v. Reynolds . . . 383 Potter v. Davy ... 347 Powel, Att.-Gen. v. 25 , Barnesly v. . . 300 v. Prentice . . .125 TABLE OF CASES. xlv Powell v. Arderne , Att.-Gen. v. Hill . — — — , Jones v. , Duke of Leeds v. v. Martin . , Molliueux v. v. Walworth v. Wright . 407, 409, 4 Power, Drew v. Powys, Andrews v. . . Poyntz, Browne v. Pratt v. Brett , Fawkes v. Prattent, Farebrother v. Prentice, Bouverie v. , Powel v. . Prescott, Pettiward v. . Preston v. Carr v. Grand Collier Dock Co v. Guyon , Newton v. . Price, ex parte . v. Dewhurst v. James . v. Keyte . . v. Price , Pyle v. , Semple v. Pridgeon's Case Pringle v. Hodgson Prinsep, Baring v. . Prior, Fleming v. , Gunn v. , Holland V. Pritchard, Gee v. ■ , Morrall v. v. Quinchant Pritman v. Pritman . 27 Prosser v. Edmonds Protector v. Lord Lumley Proud v. Combes , Wright v. Prout, Davis v. v. Underwood Prytherych, Everet v. Pulteney, Earl of Darlington v. v. Shelton v. Warren . Pultney, Cartwright v. . Purdon, Gore v. Punier, M'Dougal v. Pusey v. Desbouverie v. Pusey . Pyle v. Price Pym, Gordon v. Queensberry (Duke of), Cullen Quilter v. Mussendine . Quinchant, Pritchard v. S, 2 PAGE 209 120 391 2!) 137 113 136 291 10, 419 302 184 292 136 55 59 138 125 318 361 415 412 312 81 428 218 108 321 256 75 101 151 238, 377 291 269, 370 400 161 408 28, 67 9, 287 418 235 302 151 30 367 58 243 159 318 143 110 388 305, 356 139 . 256 412 190 273 . 28, 67 Quintine v. Yard Radcliffe v. Fursman Radford v. Wilson Radley, Standish v. Ragley v. Best . Raincock, Hicks v. . Rainsford v. Taynton Ramere v. Rawlins . Ramkissenseat v. Barker Ramsden, Lady Glanville v. Rancliffe (Lord) v. Parkyns Randal v. Head Randall v. Mumford . v. Willis . Ranelagh (Lord) v. Hayes Ranken, ex parte Rastron, Deane v. Rawlins v. Dalton . , Desborough v. , Ramere v. , Shipton r. Rawson v. Samuel . Ray, Barker v. Raynes v. Wyse Read, Bell v. . , Fells v. v. Hambey v. Read , Smith v. Reave, Lisset v. Reay (Lord), Barkley v Reed, Fen wick v. v. O'Brien Rees, ex parte Reeve v. Att.-Gen. ■ v. Dalby . Regent's Canal Co., Agar v Remington, Sandford v. Rew, Kerr v. Rex v. Austen . Reynell v. Luscombe Reynolds, Brooks v. , Houghton v v. Johnston , Pott v. . • , Smith v. Reyny, Darnell v. . 321, Rhode *pear Rhodes v. Warburton Ricardo, Garcias v. Rich, Wills v. Richards v. Att.-Gen. v. Bayly . v. Chave v. Cole v. Cooper v. Jackson v. Noble v. Symes . PAGE 34 253 350 110 398 . 253 204 222 10, 268, 269 243,281 . 361 . 369, 371 79, 81 152 172 81 366 . 326 361 222 432 41 347 56 287 . 139 245, 281 144, 149 234,333 186 12 . 224 . 430 121 33 288 . 377 335 66, 398 23 . 304 195 49, 157 212 383 373 378 83 400 299 184 169 98 159 232 425 228, 335 162 . 154 0/, xlvi TABLE OF CASES. Richardson, Bullock v. , Evans v. v. Hastings — 0. Larpent — v. Mitchell . — , Oxford and PAGE 54,231, 335 . 268 42, 409, 411,417, 430, 433 413 365 Cambridge of), 25 Universities v. Richmond (Creditors of Duke Pitt v. ' . . . 96 Rickitts, Griffiths v. . . 92 Ridge, Sims v. . . . 291 Ridler v. Ridler . . .31 Ridley, Harrison v. 80 ■ r. Obee . . .387 Riera, Heriz v. . . . 342 Rigby, Law v. 193 , Pitcher v. . . 287 v. Rigby . . .327 , Street v. . . 308 Rigg, Slade r. . . .426 Ritson v. Sir John Danvers . 225 Robeley v. Langston . . 10 Roberdeau v. Rous . .176, 254 Roberts v. Hartley . 245, 347 v. Kingsly . . 105 v. Kuffin . . . 302 v. Marchant . . 435 , Piercy v. . . .180 , Shepherd v. . 361 Robertson v. Great Western Railway Company . — — — v. Lubbock Robinson r. Bell , Dryden v. r. Evans , Flight v. , Goodyear v. . , Marsh v. , Neal v. v. Lord Rokeby ■ — , Satterly v. b. Thompson , Turner v. Robson, Stokoe v. Roche v. Morgell Rochester (Mayor &c. of) v. Lee Rodney v. Hare Rogers, Baker v. v. Earl v. Linton Rokeby (Lord), Robinson v. Rolfe, Fordham v. Rolle, Loker v. Rolleston, Hibbert v. Rolt v. Lord Somerville Rose v. Gannel 436 342, 345 153 304, 355 432 . 361 401 10 105 . 10,40 308 . 253 83, 209, 276, 277 135 304, 307 47, 49 384 Ross r. Close Rothschild, Columbian Government r 171 151 34 10, 40 421 219 138 253 62 425 325 34 Rothschild, Doloret v, Roundell v. Currer Rous, Roberdeau v. Routh v. Kinder Rowe, Jackson v. , Moor v. , Norway v. v. Teed ». Wood Rowland, Exeter College v. Rowley, Alsager v. , Charles v. —— v. Eccles , Manners v. Royal Exchange Assur. Co kle v. Royse, Hamilton v. Rumsey, Sanson v. Rundell v. Murray , Taylor v. Rush v. Higgs Ruspini v. Vickery Russell, Barclay v. 0. Sharp Rutherford v. Douglas p. Miller Rutherforth, Green v. Rutland v. Brett (Duke of), Welby v Rutter, Cud c. Ryan v. Anderson v. Mackmath Rybott v. Barrell Ryder, Att.-Gen. v. v. Bentham , Worgan v. . Rylands v. Latouche Ryves v. Ryves Sackvill i\ Ay le worth Sadgrove, James v. Sadler, Bullock v. , Dawson v. , Morse v. Safferv. Kerrick v. St. El'oy, Serle v. St. Georgio, Weatherby v. St. John, Fleming v. (Lord) v. Lady St. St. John's College, Att.-Gen | St. Leger, Adams v. St. Margaret's Westminster, wardens of, Att.-Gen. v. St. Wenn's Charity, in re | Salisbury V. Baggot i Salkeldt*. Salkeld 296, Sail, Schoole v. Salmon, Tavlor r. PAGK 141 94 254 . 193 319, 320, 321 . 183 373 312, 362 304 . 209 185 . 280 256 . 217 Butler 250 Hen- . 151 321 135 162 365, 366 195 . 249 40 . 82, 85 159 82 263, 265 278 170, 225 . 141 206 151 304 . 300 168 145 . 85, 115 45, 189,219 183 . 313 319 304 . 194, 195 . 424 28 . 399 230 John . 373 v. 210 203 Church - . 403 122 293, 295 343, 347, 355 . 292 . 409, 414 TABLE OF CASES. xlvii Salter, Wale v. Saltern v. Melhuish Salvidge v. Hyde . . 187, Sampson v. Smith v. Swettenham Samuda v. Furtado Samuel, Ravvson v. Sanders, Jerrard v. v. Kelsey . v. King Sanderson v. Thwaites Sandford v. Remington Sandiford, Braeey v. Sands, Brandon v. . v. Thorowgood . Sandys, Marquis of Downshire Sangosa v. East India Co. Sanson v. Rumsey . Satterly v. Robinson Saul v. Wilson Saunders, Jarrard v. Savage v. Carroll . Savile v. Darcy . Savory v. Barber v. Dyer . Sawkins, Jordan v. Saxby, Barnes v. , Jones v. Say and Sele (Lord), Huet v. Sayer, Allen v. v. Sayer . , White v. Sayers, Goodman v. Scarborough (Earl of), Sutton v Schmedes, Horwood v. Schneider v. Lizardi Scholefield v. Heafield Schoole v. Sail . Science, Salkeld v. . 343, Scott v. Broadwood , Garland v. v. Mackintosh , Mountford v. V. Nicholl Scudamore, Morgan v. Seagrave v. Seagrave Seale, Corporation of Dartmouth i Sealey, Jauncy v. . 205, Searle, Barbon v. Seddon v. Connell . 42, Seeley v. Boehm Selby v. Crew . , May v. Sellas v. Dawson Sellon v. Lewen Selwin, Honeywood v. Semple, Hewart v. v. London and Birm. R. v. Price PAGE 27 1 35 209, 212 402 22G 336 41 361 214 270,271 388 335 28 218 108 137 43, 326 135 308 101 321 386 339 433 55 309 373 379 86 295 84 386 187, 304 313 96 46, 403 424 292 347, 355 328 361 377 323 425 239 135 225 300, 301 105 422, 431 383 . 235 432 . 79 355 . 360 237 Co. 402, 403 . 75 Senhouse v. Earl Serle v. St. Eloy , Smith v. Seton c. Slade Sewel v. Freeston Sewell, Lushington v. Seymour v. Nosworthy Shackell v. Macaulay . Shadwell, Murray v. Shaen, llandcock v. . Shaftesbury (Lord) v. Arrowsmith Shaftoe v. Shaftoe Shakell v. Macauley Sharland, Middleditch v. Sharp, Heaumont v. v. Carter v. Hullett PAGE 279 . 28 379 379, 381 298 . 124 279 209, 211, 221, 227 287, 288, 289 200 , Russell v. v. Taylor Sharpe, De Tastet v. Shaw, Bostock v. v. Ching , Delondre v. , Taylor v. . Shelberry v. Briggs Shelton, Pulteney v. Shephard v. Titley Shepherd v. Morris v. Roberts . Sheppard, Taylor v Sherborne v. Clerk Sherrard, Stapleton V . Sherrington v. Smith Sherrit v. Birch Sherwin, Earl of Bath v Sherwood v. Clack v. Clark , Southey v. Shields v. Atkins Shipton v. Rawlins Shirley, Collins v. v. Earl Ferrers v. Watts Shore, Humble v. . Short, Wichalse v. Shuckburgh, Denys V. Shuter v. Gilliard . 298 Sibbald, Baillie v. . . 313 Sibthorp, President &c. of Magda- len College v. . .25 Sidney v. Perry . . 281 Sieveking, Behrens v. . . 289 Sigel v. Phelps . . 30 Simes v. Smith. . . 353 Simmonds, Mullins v. . 388 Simon v. Milman . . 273 Simonds, Dean and Chapter of Christ- church v. . 25, 68 Simpkinson, Gordon v. . 219 Simpson, Doran v. . . 187 229 149 . 173 303 . 163 . 230, 332 . 81 82, 85 56, 101, 110 318 . 422 362 . 177 356, 383 71 . 159 116 47 361 . 154 225 . 225 . 106, 242 . 201 168 . 381 247 . 161 294 . 432 424 . 63, 173 149 . 404 113, 281, 340, 354 342 xlviii TABLE OF CASES. Simpson, Hankey v. . , Kinnersley v. , Lingen v. Osbaldiston v. Sims v. Ridge r. Urry Skelton, Forbes V. Skey p. Bennett Skinner, &r parte . Skinners' Co., Att.-Gen. v Skipwith, Boeve v. . , Podmore v. Slade v. Bigg , Seton v. , Wills v. Slater v. Wheeler Slaughter, Patterson ». Slewing's Charity, in re Slingsby v. Hale Sloggett v. Collins . Sloman v. Kelly Small v. Attwood . , Smith v. . , Tasker v. Smalridge, Curtess v. Smart v. Bradstock , Gordon v. Smeaton, Wells v. . Smith v. Althus v. Att.-Gen. , Auriol v. v. Bicknell , Bovy v. , Bromley v. p. Brooksbank . v. Bruning . v. Collyer , Doyly v. . v. Farr . , Farrell v. . , Hall v. , Halsey v. . , Hill v. , Lawrence v. , Lloyd v. , Mole v. v. Myers . , Owens v. • v. Read v. Reynolds • , Sampson v. v. Serle , Sherrington v. , Simes v. v. Small v. Snow r. Turner . v. Watson Smithier v. Lewis . Smithson's (Sir Jeroin.) Case 102 62 305 203, PAGE 302, 303 270 141 . 374 291 152 317,34 6 410 121 186 74, 389 386 426 79,381 143 406 386, 392 121 03, 241 388 360 338 128 435 153 410 141 170 393 .82, 183 304 135 294 415 424 155 136 280 406 195 239 279 124 . 162 419, 433 69, 77 . 29 131 234, 333 . 373 402 . 379 106, 242 353 128 247, 428 241, 339 182 148 . 149 PAGE Smy the »•. Clay . . 106,116,242 Snell v. Hyat . . 125 Snow, Smith v. . . 203, 247, 428 Soares, Glyn ?\ . . 178 Society for the Illustration of Practical Science v. Abbott . 417 Solarte, Janson v. . . 358 Sol.-Gen. v. Dory . . 23 v. Warden and Fellowship of Sutton Coldtield Solomon v. Solomon Solomons, Benfield v. Somerset (Duke of) v. Cookson Moor v. Somerville ?\ Mackay (Lord), Rolt v. 23 434 81 139 263 362 253 Sons of Clergy (Corp. of the; v. Mose 402 Sorrell v. Carpenter . 391 Southall v. . . 359 Southcote, Harrison v. . 333 , Sweet v. . 235, 323 Southey v. Sherwood . . 161 South Sea Comp. v. Bumpstead . 334 v. Bumsted . 231 v. Wymondsell . 313 Sowton v. Cutler . . 60 Spain (The King of), Hullett v. . 33 v. Machado 177, 178 225 Sparrow, Adderley v. Spear, Rhode v. Speldt v. Lechmere . Spencer v. London and Birm. R. Co. (Earl), Vauxhall Bridge Co. v. Spooner, Parsons v. Spottiswood v. Stockdale Sprowle, Holland v. . , Phelps?'. Spurrier v. Fitzgerald Stables, Blackburn v. , Nevinson v. Stafford v. City of London Stainbank v. Fearnley Stamford (Mayor of), Att.-Gen. v. . Standish v. Radley | Stangroom, Marquis of Townshend t Stanhope, Deeks v. Staniland, Blackburn v. Stanley, Gerrard v. Stansbury v. Arkwright Stapilton v. Stapilton Stapleton v. Sherrard Star, Sturge v. Statham v. Hall Stather, Anderson v. . 426 Staveland, Lord Uxbridge v. 45, 189, 231, 233 Stawell, Warren v. . . 203 Steele v. Maunder . . 424 v. Stewart . . 361 Steff v. Andrews . . 347 83 138 402 25 413 . 347 346 91, 303, 307 379 . 152 109 . 327 416 121 110 151 417 73, 77 263 157 43 225 436 60 TABLE OF CASES. xlix Stephens v. Berry , Brydges v. . - v. Frost Stephenson, Feary v. v. Houlditch . Stephenton v. Gardiner Stevens v. Gappy , Hanbury v. . , Hanne v. v. Stevens Stevenson v. Anderson Steward v. East India Co. , Phipps v. , Williams v. . Stewardson, Harrison v. Stewart, Bowles v. v. Careless , Marquis of Donnegal v , Faultier v. v. Nichols v. Lord Nugent , Steele v . Stileman v. Ashdown Stockdale, Spottiswood v Stokes, Evans v. Stokoe v. Robson Stone, Henley v. , Watkins v. Stonor v. Strange — — v. Whiting Stooke v. Vincent Storie, Ball v. , Handford V. Story v. Fry v. Lord Windsor , Wood v. Stoughton v. Onslow Stowell (Lord) v. Cole Strafford (Earl of) v. Blakeway PAGE 263, 264 137 . 45 91 . Gl 247 . 113 107 . 325 29 . 58 187, 223 . 184 140 201,417 135, 187 . 309 . 371 54 . 74 328 . 361 148 . 347 417 . 135 326, 426 293,346, 351, 381 . 160 160 304 151 193, 291 . 421 293, 319, 320 10 295 . 96 312, 372 -, Jones v. . 248 (Earl and Countess of), North 138, 254 . 387 160 . 126 361 Strange v. Collins , Stonor v. Strangeways, ex parte Stratford v. Hogan Strathmore (Earl of) v. Countess of Strathmore Street v. Rigby Strickland v. Strickland , Wood v. Strode v. Blackbourne , Casamajor v. v. Little . Stroud v. Deacon Strut, Balls v. . Stuart, Brooks v. v. Lord Bute , Faulder v. Stubbs v. Leigh 270 308 92, 345, 350 344, 355, 385 . 319 55 . 263 226 . 420 420 . 365 362 . 78 Stubbs, Wall v. Sturge v . Star . Sturt, Wilcox v. Style v. Martin Sucomb, Fitzgerald v. Sudell, Att.-Gen. v. Suffolk (Earl of) v. Green Sullivan v. Sullivan Sumner v. Thorpe Surry v. Vaux Sussman, Albrecht v Sutton, Att.-Gen. v. , Charitable Corporation v. , Hasker v. v. Earl of Scarborough PAGE . 318, 353 . 436 297 . 113 292 231, 233 63, 173,230 253, 357 . 29 302 . 165 45, 49, 268 . 296 Sutton Coldtield (Warden & Society of), Blackham v. (Warden & Fellow- 25 141 313 195 ship of), Sol- Gen. Swadlin, Bower v. Swallow v. Day . Swayne, Collis v. Sweet v. Maugham . v. Southcote v. Young Swettenham, Sampson v. Swift, Edgworth v. Swinford v. Home Swinnerton, Tomlinson v. Sybell Belknap's case Symes, Balch v. , Richards v. . Symonds, Walker v. . Symons, Croggon v. Taggart v. Taggart Tahourden, Chauncey v. Talbot, Att.-Gen. v. , Duke of Chandos Tamworth (Lord) v. Lord Tappen v. Norman , Tarleton v. Hornby Tarpley, Marriott v. Tasker v. Small Tatlock, Cowdell v. Taunton v. Pepler Taylor v. Barclay , Brace v. , Christian v. . v . Hill , Langstaffe v. . Lowndes v. v. Milner . , Monteith v. , Pannell v. — — — v. Rundell v. Salmon , Sharp v. v. Shaw . 23 304 . 386 219 . 161 235, 323 369, 370 226 . 213 393 . 364 25 . 139 154 . 151 59 . 152 233 264 . 126 137 . 124 . 179, 279 . 400 435 . 383 . 304, 307 129 . 131 368 . 223 . 302 81, 273, 329 . 247 83 56 . 365, 366 409, 414 .56, 101, 110 . 356, 383 d Ferrers TABLE OF CASES. Taylor, v. Sheppard Waters v. /'. Wheeler Taynton, Rainsford v. Teale v. Teale Teed, Rowe v. Temple v. Baltinglass v. Foster Tench v. Cheese Tenchard v. Finch Tennant v. Wilsmore Terrewest v. Featherby Teynham (Lord) v. Herbert Thackeray, Lord Kilmorey v. Thanet (Lord) v. Patterson (Earl of) v. Patteson Thesiger, Manning v. Thomas of Weyland's Case — — —— , Blewit v. v. Dcring . v. Gyles , Hole v. , Jones v. , Leigh v. V. Llewellyn v. Oakley , Pierce v. v. Tyler Thnm'inson, Haddock v. Thomond's (Lord) Case Thompson, Adams v. , Aldrige v. • , Askam v. v. Barclay . , Cockburn v. , Hill v. , Irving v. . v. Leake , O'Reilly v. , Pieters v. , Robinson v. v. Wild Thomson, Chambers v. , Dalton v. Thorn v. Pitt Thornton, Lancaster v. Thornycroft, Pincke v. Thorowgood, Sands v. Thorp v. Yeates Thorpe o. Jackson v. Macaulay . ■ v. Macauley , Sumner v. Threlfall, Webster v. Thring v. Edgar Throckmorton v. Finch Thwaitcs, Glashington v. , Sanderson v. Thynne v. Townsend Tidd v. Clare 57, TAGE 154 :^08 138, 152 204 63 312, 362 296 263 373 432 387, 388 195 170 164 . 167 60 192, 196 25 315 . 276 153 . 163 320 . 196 377 . 160 61 . 227 191, 326 165 . 422 165 . 227 250 192, 196, 207 . 162 398 . 138 309 . 292 253 . 385 235 . 62 85 . 28 152, 295 . 108 30 . 427 . 173, 385 221, 253, 256 302 369, 371,384 270, 271 296 . 380 388 . 293 219 ♦ PAGE . 387 153 142, 367, 368 173 . 116 304 316 253 . 244 264 . 244 247, 249 . 110 252 219, Tidswell v. Bowyer Tilly v. Wharton Tipping, Clarke v. Tirrell v. Co Titley, Shephard v. Tittenson v. Peat Tobin v. Beckford Todd v. Gee , Wilson v. Toller v. Carteret Tollett, Fletcher v. Tomkin v. Lethbridge Tomlins v. Palk Tomlinson v. Swinnerton Took v. Took . Toosey, Baskett v. v. Burchell Tooth v. Dean and Chapter of Canter- bury . Topham v. Columbine Torrington, Grace v. . Tottenham, Corbett v. Toulmin v. Copland . Tourtou v. Flower Tourville v. Naish Townley v. Colegate Townsend, Hartwell v. , Page v. , Thynne v. v. Westacott 364 265 173 89 98 . 41 398 . 373 112 . 181 321 . 350 103, 242, 339 . 177 293 . 47 387 428 151 354 421 126 126 320 435 378 197 Towiishend (Marquis), Curling v. , Hutchinson v. (Marquis) v. Stangroom Tragonnel, Cooper v. Traill, Gedge v. Travers v. Buckley Traverse v. Buckley Trevanian v. Mosse . Trevelyan v. White Trim v. Baker Trinity College, Chaytor v. Trinity House, Strond (Corporation of) v. Burge . . .331 Trist, Corry v. . . 193 Trollop, Leech v. . . 324 Tubby v. Tubby . . 406 Tucker v. Phipps . .135 , Woots v. . 243, 339 Tuckey, Joseph v. . . 273 Tullock, King v. . . 75 Tunstal, Churchman v. . . 169 Turnbull, Devis v. . 173 Turner, Atkinson v. . . 280 v. Borlase . . 416 , Chapman v. . 258, 363 , Cooke v. . . 360 , Cotes v. . . 378 v. Doublcday . 209 , Godfrey v. . . 66 v. Hill . . . 416 TABLE OF CASES. ii Turner v. Hind , Marke v. v. Morgan v. Robinson , Smith v. v. Turner v. Tyacke Turton, Macallum v. Turvill, Norton v. Tuton, Franklyn v. Tweddell v. Tweddell Twining, Hudson v. Twort v. Twort Twycrosse, Peaebie v. Tyacke, Turner v. Tyler, Att.-Gen. v. v. Bell v. Drayton , Thomas v. Tyrrell, Crow v. PAGE . 433 12 .141 83, 209, 276, 277 241, 339 26, 27,28 416 . 230 364 . 141 151, 275 . 424 163 . 253 416 . 31 . 405 226 . 227 67, 139 Udney, De Miuckwitz v. Underwood, Prout v. University College v. Foxcroft Uppington v. Bullen Upton o. Lowten , Macmahon v. Urlin v. ■ — . 288, Urquhart v. Urquhart Urry, Sims v. Usborne v. Baker , Partridge v. . 104, Usher, Moore v. . . , Osborne v. Utterson v. Mair . Uxbridge (Lord) v. Staveland 45, 247,273 . 367 238 . 422 374 . 408 289, 357 102, 403 . 152 74, 389 106, 108 59 86, 112 185 189,231, 233 189, 224 . 320 163 197,358 290 288, 357 . 62 Vade, Bennet v. Vandebeudy, Lady Bodmin v. Vane v. Lord Rarnard Van Sandau v. Moore Vassal!, Forster v. , Foster v. 263, 278, 287, Vaughan v. Fitzgerald Vaux, Sun y r. . . . 165 Vauxhall Bridge Company v. Earl Spencer . . .25 Vawdry, Vernon v. . . 302 Veevers, Maden ». . . 361 Venables v. Foyle . 101, 115 Venemore v. Venemora . 279 Vermuden, Brown t>. . . 84, 112 Vernon, Att.-Gen. v. . 7, 24 v. Cue . . 394 , Hankey v. . 153 , Lord Hardwicke v. . 302 v. Vawdry . . 302 v. Vernon . . 129 Vick, Musgrave v. . .420 PAGE Vickers v. Cowell ■ . 425 Vickery, Ruspini, v. . . 249 Vigers v. Lord Audley . 90 Vincent, Att.-Gen. v. . . 234 , Bailey v. . . 187 , Bayley v. . .81 , Stooke v. . . 304 Vivian, Att.-Gen. v. . 23, 24, 121 Waddington, Att.-Gen. v. . 124 Wade, Gawler v. . , 203 Wadsworth, Armitage v . 157, 261 Wagstaffw. Bryan . . 372 Wainwright v. Waterman 194, 198 Wake (Sir Wm.) v. Conyers . 225 v. Parker . . 30 Wakelin v. Walthal . .115 Wakeman, Mason v. . 363 Walburn v. Ingilby . . 181 Waldron, Howell v. . . 292 Wale v. Salter . . 27 Walford, v. . 436 Walker, Addison v. . .217 v. Barnes . . 141 ■ v. Consett . . 303 , Miller v. . 212 v. Symonds . . 151 Wall, Kaye v. . • 364 v. Stubbs . 318, 353 Waller v. Hanger . . 266 Walley v. Whalley . . 34 Wallis, Anderson v. . 27 , Newman v. . . 269 v. Duke of Portland 222, 227, 230 Wallwyn v. Lee . . 319 Walmisley v. Child . . 146 Walpole (Lord) v. Lord Orford . 41 Walsingham (Lord) v. Goodriche 362 Walter v. Glanville . . 305 Walters, Barker v. . . 42,412 Walthal, Wakelin v. . . 115 Walton, Darwent v. . . 191 Walworth v. Hott . . 412 , Powell v. . 291 Walwyn, Matthews v. . . 303 Warburton, Rhodes v. . 400 Ward v. Cooke . . 209 , Cornell v. . . 297 , Garth v. . .89 v. Periam . . 187, 304 v. Ward . . .28 Wardell v. Claxton . . 433 Warden's (Sir John) case . 99 Ware v. Horwood . . 151 Waring v. Mackreth . .219 Warington v. Wheatstone . 60 Warmington, Miller v. . . 141 Warren, Connell v. . 279 , Pulteney v. . . 318 v. Stawell . 203 Hi TABLE OF CASES. Wartnaby ?>. Wartnaby . 32, Wastall, Balch v. . 33, 123, Waterloo Bridge Co., Gibbons v. Waterman, Wainwright v. Waterpark (Lord) Young v. Waters v. Chambers v. Mayhew v. Taylor Waterton v. Croft Watkins, Browsher v. v. Bush , Cardale v. . 66, v. Stone 293, 346, Watson, Smith v. Watts, Hodder v. , Pitt v. . , Shirley v. Weatherby, Brown v. v. St. Giorgio . Weatherhead v. Blackburn Weaver, Green v. v. Earl of Meath Web, Bishop of London v. Webb, Faircloth v. , Kirk v. — — , Wilson v. Webster v. Threlfall . 57, Weeks v. Evans v. Pitt . Wegg, Cunningham v. Welby v. Duke of Portland . v. Duke of Rutland Weld v. Bonham . 193, 197, Wellbeloved v. Jones Wellesley, Paterson v. Wellington v. Mackintosh Wells v. Smeaton v. Wood Welsh Copper Co., Moor v Wentworth, Bancroft v. West, Houghton v. . ( Mortimer v. Westacott, Townsend v. Westcomb v. Westcomb Westcombe, Angell v Western, Bush v. , Morrett v. Westhead v. Keene Weston, Baker v. . , Fairthorne v , Green v. . • v. Haggerston ■ , Hester v. v. Keighley -, Neve v. 67, Wetherell v. Collins Wetton, Baker v. Whaley v. Bagnal Whalley, Walley v. Wharton, Bedford v. PAGE 177, 209 148, 149 224 194, 198 . 407 265 . 266 308 200, 204 404 . 254 221, 227 351,381 . 182 303 . 383 149 215,421 . 399 253 . 232 333 . 164 387 . 312 102 369, 371 421 . 211 263 . 343 170, 225 207, 410 120, 190 . 436 308 . 170 387 289, 290 . 335 102 . 29 47 . 125 64 . 170 280 . 161 424 . 363 419 . 109 209, 248 . 207 291 . 88 424 . 310 34 . 386 Wharton ?>. May , Tilly v. v. Wharton Whatley, Bradstock v. Wheatstone, Warington v. Wheeler, Copeland v. v. Malins , Slater v. , Taylor v. Whinyates, Williams v. Whitbread v. Brockhurst Whitchurch v. Bevis v. Golding v. Hide Whitcombe v. Minchin White v. Godbold v. Hall v. Hillacre , Hyliard v. , Knebell v. v. Sayer . , Trevelyan V. v. Williams , Wood, v. Whitehead, Bryson v , Gibson v. Whitehouse, Faucet v. Whiteing, Hollis v. Whitfield, Hyde v. Whiting, Stonor v. Whitley v. Martin Whitmore v. Francis Whittingham v. Bourgoyne — , Garey v. Whitworth (Lord), Brooks v. v. Davis v. Gaugain v. Golding Whore wood v. Whore wood PAGE . 302, 303 . 153 . 3C7, 386 . 430 60 . 376 81 . 406 . 138, 152 34, 191, 199 310, 312, 313, 314, 344, 345 310,311, 355 66, 146 . 170 82 . 387 298 418 . 351 142 . 386 435 . 368 434, 435 141 . 344 400 . 310 56 . 160 46 . 230 155 . 126 209 . 187 41 . 147 115 Wichalse v. Short Wigan, Berks v. Wiggins, Jones v. Wignall, Pilkington v. Wignell, Pilkington v. Wilbraham, Howlett v. Wilcock, Cork v. Wilcocks, Coke v. Wilcox v. Sturt Wild, Thompson v. . Wilkes's Case Wilkins v. Aikin v. Chalcroft Wilkinson v. Beal v. Henderson Parry . Willan v. Willan Williams, Abery v. , Duke of Bolton v v. Cooke 113, 281, 340,354 384 . 365 245 . 74 125 313,314 355, 356 . 297 385 23, 33 161 . 263 41,43 . 427 179, 430 102, 151,393 335 165 . 96 TABLE OF CASES. liii Williams, Cowtan v. , Davies v. . v. Flight , Goodess v. v. Earl of Jersey v. Karabe . v. Kinder v. Lambe . v. Lee , Lowe v. v. Macnamara . , Piggott v . . ik Steward v. Whinyates — , White v. v. Wynn . Williamson, Brown v. v. Gihon , Ord v. PAGE . 166 404 . 48 398 . 47 144 . 81 319 154, 298 57 . 137 98 . 140 34, 191,199 . 368 124 . 296 155 . 329 110 . 152 263 . 184 143 . 328 . 387,388 . 431 Willis v. Parkinson , Randall v. Willoughby v. Brearton Wills v. Rich . v. Slade Wilmot v. Maccabe Wilsmore, Tennant v. Wilson, Att.-Gen. v. , Corporation of Carlisle v. 141, 169 v. Chester . . 427 v. Forster . . 220 v. Grace . 124, 125 v. Jones . . 358 , Livesey v. . . 387 , Maitland v. . 320, 355 . , Radford v. . 321,350 , Saul v. . .101 v. Todd . . 244 v. Webb . .102 Wiltshire, Harrison v. . 47, 49 Winchester (Earl of), Clayton w. 348 — — — — (Bishop of) v. Fournier 151, 152 , Longman v. . .161 Winchilsea (Earl of), Finch v. . 138 (Lord), Finch v. . 96 Windsor v. Inhabitants of Farnham 101 (Lord), Story v. 293,319,320 — v. Windsor Wing v. Wing . Winn v. Fletcher Winshup, Abrams v. Winter, Darthez v. Wintour, Geale v. Wister, Croster v. Witherly, Lord Chan. Jefferies v. , Liney v . Withers, Bryant v. Witts v. Campbell Wombwell, Crompton v. Wontner, Foley ». 55 287 269 393 179 287 85 7 32 80 29 75 121 2, 287, Wood v. Abrey v. Griffiths . 109, v. Hitchings v. Kay , Rowe v. v. Story . v. Strickland 344, , Wells v. v. White . v. Wood Woodcraft v. Kinaston Woods v. Woods . 57, 87, Woollands v. Crowcher Woodward v. Woodward Woolrich, Att.-Gen. v. Woots v. Tucker Worcester (Dean and Chapter of), John D. Goodere v. Wordell, Clare v. . 86 Worden (Sir John) v. Gerard Worgan v. Ryder Wormald v. De Lisle Wormleighton, Lord v. . Worthington v. Foxhall Wortley v. Birkhead — , Crofts v. Wray v. Hutchinson Wright v. Atkyns v. Blicke , Clerk v. v. Coxon ■ v. Howard 1 v. Mayer ■ v. Plumtree , Powell v. 407, 409, v. Proud Wrottesley v. Bendish Wyatt, Chalk v. , Dixon v. , Farrer v. Wybourn v. Blunt Wych v. East India Co v. Meal . Wyche, Dearman v. Wyld, Lord Keeper v. Wymondsell, South Sea Co. v Wynn, Williams v. Wynne v. Callandar Wynniat v. Lindo Wynstanley v. Lee Wyse, Raynes V. Yard, Quintine v. Yates v. Hardy Yeates, Thorp v. Yonge, Long v. York (Mayor of) v. Pilkington Build. Co., Higgins v. Huggins v. PAGE 151 379, 386 8, 358 . 165 304 . 10 355, 385 387 434, 435 75, 77 . 61 119, 361 68 . 76 31 243, 339 Sir 249 , 87, 118 . 116 145 . 48 . 195 377 243,281 290, 357 74, 359 . 55 183 . 309 302 68, 387 335 222, 229 410, 419 . 151 126, 236 168 . 96 29 . 125 295, 312 . 224 316 . 324 313 . 124 152 . 434 168 56 34 . 377 30 . 417 169, 210 . 148 33, 79, 291, 336 e liv TABLE OF CASES. Yorke v. Fry Young, Bent v. , Carrick v. , Carwick v. v. Elworthy , Irvine v. PAGE . 270 65, 221 . 290 290 . 181 302 Young v. Keighly , Sweet v. v. Lord Waterpark Zouche (Lord), Lewis v. PAGE 102, 104, 105 369, 370 407 . 425 ERRATUM. 358, note (1) line I, for " note (1) to p. 45," read note (2) to p. 52. In this case the reference is by mistake made to the page of the previous edition in- stead of to the page of this edition. The editor fears that there may be some other instances of a similar inaccuracy ; but, as the pages of the previous edition are pre- served in the margin, he hopes that little inconvenience will arise from such inaccu- racies, if any other exist. INTRODUCTION. Of the extraordinary jurisdiction of the Court of Chancery ; and of the manner in which suits to that jurisdiction are instituted, defended, and brought to a decision. The Chancery of England has various offices and ordinary and J o extraordinary jurisdictions. The most important jurisdiction is&Wuttfdun. eery. that which it exercises as a court of equity, usually styled its extraordinary jurisdiction, to distinguish it from those which are termed its ordinary juris- dictions, and are chiefly incident to its ministerial offices, and the privileges of its officers. The exercise of this extraordinary jurisdiction by SSSSiSSid Vi_*i.f ±1 11J.1J l /» by distinct courts courts distinct from those usually styled courts of is peculiar to this country. common law, to which the ordinary administration of justice in civil suits is intrusted, seems to be, in a great degree, a peculiarity in the jurisprudence of the country, but pervading the whole system of its judi- cial polity. The origin of these courts is involved in OH e inail , ll ,J u,is - l J O diction ot these great obscurity (1) ; their authority has been formerly courts ' questioned, and the subjects and limits of their juris- (1) On this subject, see Mr. Speace's very learned work on "The Equitable Jurisdiction of the Court of Chancery." B Z EXTRAORDINARY JURISDICTION [2] diction were then but imperfectly ascertained. Time has given them full establishment, and their powers and duties have become fixed and acknowledged. If any doubt on the extent of their duties has occurred of late years, it has principally arisen from the libera- lity with which the courts of common law have noticed and adopted principles of decision established in courts of equity ; a liberality generally conducive to the great ends of justice, but which may lead to great inconvenience, if the whole system of the administration of justice by courts of equity, the extent of their powers and means of proceeding, the subservience of their principles of decision to the principles of the common law, the preference which they have allowed to common-law rights where in conscience the parties have stood on equal p rounds, and the defect in the powers of the court of com- mon law arising from their mode of proceeding, should not be frilly considered, in all their conse- quences (a). objects of numi- In the construction of everv svstem of laws, the cipal law. J J principles of natural justice have been first con- sidered ; and the great objects of municipal laws have been, to enforce the observance of those prin- ciples, and to provide a positive rule where some rule has been deemed necessary or expedient and natural justice has prescribed none. It has also been an object of municipal law to establish modes of administering justice. [3] The wisdom of legislators in framing positive laws (a) See Lord Hardwicke's head, 2 Ves. 5/3, 57-4. And judgment in Wortley and Birk- see 6 Ves. 33. OF THE COURT OF CHANCERY. to answer all the purposes of justice has ever been °i3t!ncHon h b e e- founel unequal to the subject ; and therefore, in all llw^deqauy, countries, those to whom the administration of the laws has been intrusted, have been compelled to have recourse to natural principles, to assist them in the interpretation and application of positive law, and to supply its defects ; and this resort to natural principles has been termed judging according to equity. Hence a distinction has arisen in jurisprudence between positive law and equity ; but the administration of both has in most countries been left, at least in their superior courts, to the same tribunal. In prescribing t° n°o t v ^ e r d j ) s r cre ' forms of proceeding in courts of justice human fore- a onns ' sight has also been defective ; and therefore it has been commonly submitted to the discretion of the courts themselves, to vary or add to established forms, as occasion and the appearance of new cases have required. In England a policv somewhat different has pre- Advantages and o r J J. disadvantages of vailed. The courts established for the ordinary ad- common e "w fthe ../»•• i n courts. ministration of justice, usually styled courts of com- mon law, have, as in other countries, recourse to principles of equity in the interpretation and appli- cation of the positive law : but they are bound to establish forms of proceeding ; are in some degree limited in the objects of their jurisdiction ; have been embarrassed by a rigid adherence to rules of decision, originally framed, and in general retained, for wise purposes, yet, in their application, some- times incompatible with the principles of natural and universal justice, or not equal to the full appli- cation of those principles ; and the modes of pro- [4] b2 4 EXTRAORDINARY JURISDICTION ceeding in those courts, though admirably calculated for the ordinary purposes of justice, are not in all cases adapted to the full investigation and decision of all the intricate and complicated subjects of litigation, which are the result of increase of commerce, of riches, and of luxury, and the consequent variety in the necessities, the ingenuity, and the craft of mankind. Their simplicity, clearness and precision, are highly advantageous in the ordinary administration of jus- tice ; and to alter them materially would probably produce infinite mischief: but some change would have been unavoidable if the courts of common law had been the only courts of judicature. General descrip- Early therefore in the history of our jurisprudence tion of the juris- J J " x efequity. fcourts the administration of justice by the ordinary courts appears to have been incomplete, and to supply the defect the courts of equity have exerted their juris- diction : assuming the power of enforcing the prin- ciples upon which the ordinary courts also decide, when the powers of those courts, or their modes of proceeding, are insufficient for the purpose ; of pre- venting those principles, when enforced by the ordi- nary courts, from becoming (contrary to the purpose of their original establishment) instruments of in- justice ; and of deciding on principles of universal justice, where the interference of a court of judica- ture is necessary to prevent a wrong, and the positive law, as in the case of trusts, is silent (b). The courts (6) Principles of decision by those courts as rules to be thus adopted by the courts of observed with as much strict- equity, when fully established ness as positive law. See the and made the grounds of sue- judgment of Sir Joseph Jekyll, ccssive decisions, are considered emoted by Sir Thomas Clarke, OF THE COURT OF CHANCERY. of equity also administer to the ends of justice, by [5] removing impediments to the fair decision of a ques- tion in other courts ; by providing for the safety of property in dispute pending a litigation ; by pre- serving property in danger of being dissipated or destroyed by those to whose care it is by law in- trusted, or by persons having immediate but partial interests ; by restraining the assertion of doubtful rights in a manner productive of irreparable damage; by preventing injury to a third person from the doubtful title of others ; and by putting a bound to vexatious and oppressive litigation, and preventing unnecessary multiplicity of suits : and, without pro- nouncing any judgment on the subject, by com- pelling a discovery, or procuring evidence, which may enable other courts to give their judgment ; and by preserving testimony when in danger of being lost before the matter to which it relates can be made the subject of judicial investigation (c). This establishment, as before observed, has ob- tained throughout the system of our judicial polity ; most of the branches of that system having their inBlackst. Rep. 152. Pluraque tionof our courts of equity (1). quae usu fori comprobata, de- This general description, though nique juris scripti auctoritatem imperfect, and in some respects propter vetustatem obtinuerunt. inaccurate, is offered only for Cic. de invent, lib. 2, c. 22. the purpose of elucidating the Heinecc. de edict, prset. lib. 1, following treatise, in the course c. 6, p. 129. of which the subject must be in (c) It is not a very easy task ac- many points more fully consi- curately to describe the jurisdic- dered. (1) As to the nature of equity jurisprudence and the extent of equity jurisdiction, see Smith's Manual of Equity, Introd. sect. I. EXTRAORDINARY JURISDICTION [6] Advantage of the separate adminis- tration of equity. Causes of it. peculiar courts of equity (d) , and the court of chan- cery assuming a general jurisdiction, which extends to cases not within the bounds or beyond the powers of other jurisdictions (e) . The existence of this extraordinary jurisdiction, entirely distinct from the ordinary courts, though frequently considered as an enormity requiring re- dress, has perhaps produced a purity in the admi- nistration of justice which could not have been effected by other means ; and it is in truth, in a (d) Thus the court of ex- chequer, established for the par- ticular purpose of enforcing the payment of debts due to the king, and incidentally adminis- tering justice to the debtors and accountants to the Crown, has its own peculiar court of equity (1). The courts of Wales, of the Counties Palatine (2), of London, of the Cinque Ports, and other particular jurisdic- tions, have also their peculiar courts of equity. (e) The court of equity in the exchequer chamber is also frequently considered as a court of general jurisdiction, and in effect it is so, in a great de- gree, though in principle it is not. For its jurisdiction is in strictness confined to suits of the crown, and of debtors and accountants to the crown ; and a suggestion, the truth of which the court will not permit to be disputed, " that its suitor is a " debtor and accountant to the "crown," is still used to give it more extensive jurisdiction. This practice, as well as a simi- lar fiction used to give general jurisdiction to the common-law- court in the exchequer, and the fiction used to give jurisdiction to the court of king's bench in a variety of civil suits of which it has not strictly cognizance, may appear the objects of cen- sure ; but they have probably had the effect of preventing that abuse of power which is too often the consequence of the single jurisdiction of one su- preme court. (1) By the stat. 5 Vict. c. 5, s. 1, the equitable jurisdiction of the court of exchequer is transferred to the court of chancery. (2) The courts of the county palatine of Chester and the Principality of Wales have been abolished by the stat. 11 Geo. IV. and 1 Will. IV. c. 70, s. 14. mation. OF THE COURT OF CHANCERY. 4 great degree, a consequence of that jealous anxiety with which the principles and forms established by the common law have been preserved in the ordinary courts as the bulwarks of freedom, and of the abso- L' J lute necessity of preventing the strict adherence to those principles and forms from becoming intoler- able. A suit to the extraordinary jurisdiction of the ^a wut£wil! court of chancery, on behalf of a subject merely, is commenced by preferring a bill, in the nature of a petition (/), to the lord chancellor, lord keeper, or lords commissioners for the custody of the great seal (g) ; or to the king himself in his court of chan- cery, in case the person holding the seal is a party {h), or the seal is in the king's hands (j) . But if JSEffgHt the suit is instituted on behalf of the Crown (k), or of those who partake of its prerogative (/) , or whose rights are under its particular protection, as the ob- jects of a public charity (>«), the matter of complaint is offered to the court by way of information, given (/) 9 Edw. IV. 41 ; Prac. missioners, see 1 W. & M. Reg. p. 57, Wyatt's Edit. This c. 21 . book, and other books of prac- (h) 4 Vin. Ab. 385 ; L. Leg. tice, are only cited where no Jnd. inCh. 44, 255, 258 ; Jud. other authority occurred, or Auth.M. R. 182; 2 Prax. Aim. wherethey might lead thereader Cur. Cane. 463 ; Ld. Chan, to further information on the Jefferies against Witherly. subject. The Practical Regis- («') 1 West. Symb. Cha. 194, ter is mentioned by Lord Hard- b. wicke, 2 Atk. 22, as a book, (#) 1 Roll. Ab. 373 ; Att. though not of authority, yet Gen. v. Vernon, 1 Vern. 277, better collected than most of the 370. kind. (/) As to idiots and lunatics, (g) As to the authority of a see Chap. 1, sect. 1. lord keeper, see 5 Eliz. c. 18 ; («?) 1 C. in Cha. 158; Anon. and as to that of lords com- 3Atk.2/(i. See 1 Swanst. 292. O EXTRAORDINARY JURISDICTION by the proper officer, and not by way of petition («). [8] Except in some few instances (0), bills and informa- iJiformation called tions have been always in the English language ; a ro t y ,ng ,s j ^^ ^ g ^ p re f erre( J m £his manner m the COUrt of chancery has been therefore commonly termed a suit by English bill, by way of distinction from the proceedings in suits within the ordinary jurisdiction of the court as a court of common law, which, till the statute of the 4 Geo. II. c. 26, were entered and enrolled, more anciently in the French or Norman tongue, and afterwards in the Latin, in the same manner as the pleadings in the other courts of common law. bin s e are fii r ed! lich Every bill must have for its object one or more of the grounds upon which the jurisdiction of the court is founded ; and as that jurisdiction sometimes extends to decide on the subject, and in some cases is only ancillary to the decision of another court, or reUef « a future suit, the bill may either complain of some injury which the person exhibiting it suffers, and discovery, p ra y re lief* according to the injury ; or, without pray- ing relief, may seek a discovery of matter necessary injunction, to support or defend another suit; (1) or, although (n) On the subject of inror- guage. See Calendars of Pro- nations, see Chap. 1, sect. 3. ceed. in Chan, printed under (0) There are some bills in authority of Commiss. on Pub- early time in the French Ian- lie Records, 1827. Bin for relief and (\) it is not allowable in effect to unite in one bill, a bill for discovery distinct ... from each other, relief, and a bill for discovery on a matter which is quite distinct from that relief, although both be connected with the same cir- cumstances. So that in a bill for a receiver, pending a litigation as to probate, a plaintiff cannot have a discovery in reference to the merits on that litigation. Wood v. Hitchings, 3 Beav. 504. OF THE COURT OF CHANCERY. 9 no actual injury is suffered, it may complain of a threatened wrong, and stating a probable ground of possible injury, may pray the assistance of the court to enable the plaintiff, or person exhibiting the bill, to defend himself against the injury whenever it shall be attempted to be committed. As the court of chancery has general jurisdiction in matters of [9] equity not within the bounds or beyond the powers of inferior jurisdictions (p), it assumes a control over writof certiorari. those jurisdictions, by removing from them suits which they are incompetent to determine. To effect this, it requires the party injured to institute a suit in the court of chancery, the sole object of which is the removal of the former suit by means of a writ called a writ of certiorari ; and the prayer of the bill used for this purpose is confined to that object. The bill, except it merely prays the writ of cer- Answer on oath, tiorari, generally requires the answer of the defendant, or party complained of, upon oath. An answer is objects thereof. thus required, in the case of a bill seeking the de- cree of the court on the subject of the complaint, with a view to obtain an admission of the case made by the bill, either in aid of proof, or to supply the want of it ; a discovery of the points in the plaintiff's case controverted by the defendant, and of the grounds on which they are controverted ; and a dis- covery of the case on which the defendant relies, and of the manner in which he means to support it. If the bill seeks only the assistance of the court to protect the plaintiff against a future injury, the (p) The court of equity in a particular, is not an inferior, the exchequer chamber, though jurisdiction. 10 EXTRAORDINARY JURISDICTION [10] Answer without oath. answer of the defendant upon oath may be required to obtain an admission of the plaintiff's title, and a discovery of the claims of the defendant, and of the grounds on which those claims are intended to be supported. When the sole object of a bill is a dis- covery of matter necessary to support or defend another suit, the oath of the defendant is required to compel that discovery. The plaintiff may, if he thinks proper, dispense with this ceremony, by con- senting to or obtaining an order of the court for the purpose ; and this is frequently done for the conve- nience of parties where a discovery on oath happens not to be necessary. And where the defendant is entitled to privilege of peerage, or as a lord of par- liament, or is a corporation aggregate, the answer, in the first case, is required upon the honour of the defendant^), and in the latter, under the common seal (;•). (g) Ord. in Cha. Ed. Bea. 105, 261 ; 18Ves. 470; 1 Yes. 4/0; 1 Yes. &B. 187; 1 Jac. & W. 526. And see Robinson v. Lord Rokeby, 8Ves. 601, as to Irish peers. (r) It may be observed, that although in ordinary cases the answer is required upon oath, other sanctions are in certain instances allowed in practice : a Quaker puts in his answer upon his solemn affirmation and declaration, see 7 "W. & M. c. 34 ; 8 Geo. I. c. 6. Ord. in Cha. Ed. Bea. 247 ; Wood v. Story, 1 P. Wms. 781 ; Marsh v. Robinson, 2 Anstr. 479 ; and so it appears does a Moravian, see 22 Geo. II. c. 30. And infidels are permitted to swear according to the forms of the religion which they profess, provided such forms constitute an appeal to the Supreme Being ; see the well-known cases of Omychund v. Barker, 1 Atk. 21 ; S.C.2 Eq. Ca. Abr. 397, and Ramkissenseat v. Barker, 1 Atk. 51 : a Jew makes oath upon the pentateuch, Robeley v. Langston, 2 Keble, 314; Anon. 1 Yern. 263 : and a Mahometan upon the koran, Stra. 1104. OF THE COURT OF CHANCERY. 11 To the bill thus preferred, unless the sole object Defence or dis- " claimer necessary. of it is to remove a cause from an inferior court of equity, it is necessary for the person complained of either to make defence, or to disclaim all right to the matters in question by the bill (1). As the bill calls upon the defendant to answer the several charges [11] contained in it, he must do so, unless he can dispute Exemption from A answering. the right of the plaintiff to compel such an answer, either from some impropriety in requiring the dis- covery sought by the bill, or from some objection to the proceeding to which the discovery is proposed to be assistant ; or unless by disclaiming all right to the matters in question by the bill he shows a fur- ther answer from him to be unnecessary (s) . A defendant to a bill may have an interest to Formal answers, support the plaintiff's case, or his interest may not be adverse to that claim ; he may be a mere trustee, or brought before the court in some character neces- sary to substantiate the suit, that there may be proper parties to it. In such cases, his answer may often be mere matter of form(l), submitting the (s) In some cases a defend- in the matters in question. See ant may be compelled to an- Chap. II. sect. 2, part 1. swer, though he has no interest (1) By the 23rd order of August, 1841, "where no account, serving a copy of payment, conveyance, or other direct relief is sought against a 23rd order o" e party to a suit, it shall not be necessary for the plaintiff to require August ' ,841, such party, not being an infant, to appear to and answer the bill. But the plaintiff shall be at liberty to serve such party, not being an infant, with a copy of the bill, whether the same be an original, or amended, or supplemental bill, omitting the interrogating part thereof: and such bill, as against such party, shall not pray a subpoena to appear and answer, but shall pray that such party, upon being served with a copy of the bill, may be bound by all 12 EXTRAORDINARY JURISDICTION subject of the suit to the judgment of the court ; and, if any act should be required to be done by him, desiring only to be indemnified by the decree of the court. Grounds of de- f\ ie grounds on which defence may be made to a fence. o J bill, either by answer, or by disputing the right of the plaintiff to compel the answer which the bill requires, are various. The subject of the suit may the proceedings in the cause. But this order is not to prevent the plaintiff from requiring a party against whom no account, payment, conveyance, or other direct relief is sought, to appear to and answer the bill, or from prosecuting the suit against such party in the ordinary way, if he shall think fit." And by the 29th order " where no account, payment, conveyance or other relief is sought against a party, but the plaintiff shall require such party to appear to and answer the bill, the costs occasioned by the plaintiff having required such party so to appear and answer the bill, and the costs of all proceedings consequential thereon, shall be paid by the plaintiff, unless the court shall otherwise direct." According to the decision in Lloyd v. Lloyd, in a creditor's suit for administering the estate of a testator who has devised his real estate, subject to a power of sale for the payment of such part of his debts as his personal estate might be insufficient to pay, the devisees may be served with a copy of the bill under the 23rd order. 1 Y. & C. Ch. C. 181. But according to the decision in Barkley v. Lord Reay, where a suit is instituted for the raising of a legacy by a sale or mort- gage of entailed real estate against the trustees thereof, who have the legal fee and full power to sell or mortgage and give receipts, it is not sufficient to serve the equitable tenant in tail with a copy of a bill. 2 Hare, 30G. The 23rd order does not apply to the Attorney General. Chris- topher v. Cleyhorn, 8 Beav. 314. As to other persons not within this order, see Marke v. Turner, 7 Jur. 1102. The prayer that a party who is not required to appear and answer may be bound by all the proceedings in the cause, ought to be inserted in that part of the bill in which process is prayed against the other defendants. Gibson v. Ilaynes, 0' Jur. 203. L. C. OF THE COURT OF CHANCERY. 13 not be within the jurisdiction of a court of equity : or some other court of equity may have the proper jurisdiction : the plaintiff may not be entitled to sue by reason of some personal disability : if he has no such disability he may not be the person he pretends [12] to be : he may have no interest in the subject : or if he has an interest, he may have no right to call upon the defendant concerning it : the defendant may not be the person he is alleged to be by the bill : or he may not have that interest in the subject which can make him liable to the claims of the plaintiff: and finally, if the matter is such as a court of equity ought to interfere in, and no other court of equity has the proper jurisdiction, if the plaintiff is under no personal disability, if he is the person he pretends to be, and has a claim of interest in the subject, and a right to call upon the defendant concerning it : if the defendant is the person he is alleged to be, and also claims an interest in the subject which may make him liable to the demands of the plaintiff; still the plaintiff may not be entitled, in the whole or in part, to the relief or assistance he prays : or if he is so entitled, the defendant may also have rights in the subject which may require the attention of the court, and call for its interference to adjust the rights of all parties ; the effecting complete justice, and finally determining, as far as possible, all questions concerning the subject, being the constant aim of courts of equity. Some of these grounds may extend only to entitle the defendant to dispute the plaintiff's claim to the relief prayed by the bill, and may not be sufficient to protect him from making the dis- 14 EXTRAORDINARY JURISDICTION covery sought by it ; and where there is no ground for disputing the right of the plaintiff to the relief prayed, or if no relief is prayed, yet if there is any [13] impropriety in requiring the discovery sought by the bill, or if the discovery can answer no purpose, the impropriety or immateriality of the discovery may protect the defendant from making it. Defence founded The defence which mav be made on these several on matter in the therein 00 a defect grounds may be founded on matter apparent on the bill, or on a defect either in its frame or in the case made by it ; and may on the foundation of the bill itself demand the judgment of the court whether the defendant shall be compelled to make any answer to the bill, and consequently whether the suit shall Defence founded proceed ; or it mav be founded on matter not appa- wholly or par- r J x x SKrtT facVof rent on the bill, but stated in the defence, and may on the matter so offered demand the judgment of the court, whether the defendant shall be compelled to make any other answer to the bill, and consequently whether the suit shall proceed, except to try the truth of the matter so offered ; or it may be founded on matter in the bill, or on further matter offered, or on both, and submit to the judgment of the court on the whole case made on both sides ; and it may be more complex, and apply several defences differently founded to distinct parts of the bill. The form of making defence varies according to the foundation on which it is made, and the extent in which it submits to the judgment of the court. If it rests on the bill, and on the foundation of matter there apparent demands the judgment of the court whether the suit shall proceed at all, it is termed a the bill. OF THE COURT OF CHANCERY. 15 demurrer; if on the foundation of new matter offered, Plea - it demands the judgment of the court whether the defendant shall be compelled to answer further, it [14] assumes a different form, and is termed a plea ; if it Ansvver - submits to answer generally the charges in the bill, demanding the judgment of the court on the whole case made on both sides, it is offered in a shape still different, and is simply called an answer. If the de- Disclaimer. fendant disclaims all interest in the matters in ques- tion by the bill, his answer to the complaint made is again varied in form, and is termed a disclaimer. And all these several forms of defence, and dis- j^ 6 ™* to r several 1 • /> ,i i j j_ ,i •/• parts of the bill. claimer, or any ol them, may be used together, it applying to separate and distinct parts of the bill . A demurrer, being; founded on the bill itself, ne- Proceedings on a ' o ' demurrer. cessarily admits the truth of the facts contained in the bill, or in the part of the bill to which it extends ; and therefore, as no fact can be in question between the parties, the court may immediately proceed to pronounce its definitive judgment on the demurrer, which, if favourable to the defendant, puts an end to so much of the suit as the demurrer extends to. A demurrer (1), if allowed, consequently prevents any further proceeding (0 . A plea is also intended to Proceedings on a (t) An amendment of a bill the ground of demurrer may has been permitted by a court be removed by amendment, to of equity after a demurrer to make a special order, adapted the whole bill had been allowed ; to the circumstances of the but this seems not to have been case. See Chap. II. sect. 2, strictly regular; 2 P.Wms.300 ; part 1 . and it seems most proper, if (1) That is, a demurrer to the whole bill. If a partial demurrer is allowed, the bill is still in court. And on allowing a 16 EXTRAORDINARY JURISDICTION prevent further proceeding at large, by resting on some point founded on matter stated in the plea; and as it rests on that point merely, it admits, for the [15] purposes of the plea, the truth of the facts contained in the bill, so far as they are not controverted by facts stated in the plea. Upon the sufficiency of this de- fence the court will also give immediate judgment, supposing the facts stated in it to be true ; but the judgment, if favourable to the defendant, is not de- finitive ; for the truth of the plea may be denied by the plaintiff by a replication, and the parties may then proceed to examine witnesses, the one to prove and the other to disprove the facts stated in the plea. The replication in this case concludes the pleadings (u) ; though, if the truth of the plea shall not be sup- ported, further proceedings may be had, which will JSjJp on be noticed in a subsequent page (.?). An answer generally controverts the facts stated in the bill, or some of them, and states other facts to show the rights of the defendant in the subject of the suit ; but sometimes it admits the truth of the case made by the bill, and, either with or without stating ad- ditional facts, submits the question arising upon the case thus made to the judgment of the court. If an answer admits the facts stated in the bill, or such as are material to the plaintiff's case, and states no new facts, or such only as the plaintiff is willing to admit, no further pleading is necessary ; the answer (u) See Chap. III. (a?) See Chap. II. sect. 2, part 2. demurrer for want of parties, the court generally gives leave to amend the hill. See 1 Ileadlam's Daniell's Ch. Pr. 552 — 555. OF THE COURT OF CHANCERY. 17 is considered as tine, and the court will decide upon it. But if the answer does not admit all the facts in the bill material to the plaintiff's case, or states any fact which the plaintiff is not disposed to admit, the truth of the answer, or of any part of it, may be denied, and the sufficiency of the bill to ground [16] the plaintiff's title to the relief he prays may be asserted, by a replication, which in this case also concludes the pleadings according to the present (y) practice of the court. If a demurrer or plea is over- New defence. ruled upon argument the defendant must make a new defence. This he cannot do by a second de- murrer of the same extent after one demurrer has been over-ruled ; for although by a standing order of the court a cause of demurrer must be set forth in the pleading, yet if that is overruled, any other cause appearing on the bill may be offered on argu- ment of the demurrer, and, if valid, will be allowed ; the rule of the court affecting only the costs. But after a demurrer has been overruled a new defence may be made by a demurrer less extended, or by plea, or answer ; and after a plea has been over- ruled, defence may be made by demurrer, by a new plea, or by an answer: and the proceedings upon the new defence will be the same as if it had been originally made (z). A disclaimer, neither asserting Proceedings in ° J V ° the case of a dis- any fact, nor denying any right sought by the bill, claimer - admits of no further pleading (a) . If the sole ob- S* 6 "* 11 *" on a r a \ / bill of discovery, ject of a suit is to obtain a discovery, there can be wif. certI0ran (y) See Chap. III. (a) See Chap. II. sect. 2, (Y) See Chap. II. sect. 2, part 3. part 1. 18 EXTRAORDINARY JURISDICTION no proceeding beyond an answer by which the dis- covery is obtained. A suit which only seeks to remove a cause from an inferior court of equity does not require any defence, and consequently there can be no pleading beyond the bill. [17] Suits thus instituted are sometimes imperfect in their frame, or become so by accident before their end has been obtained ; and the interests in the pro- perty in litigation may be changed pending the suit orYginal'sufts 6 not m various ways. To supply the defects arising from any such circumstances, new suits may become ne- cessary, to add to, or continue, or obtain the benefit of, the original suit. A litigation commenced by one party sometimes renders a litigation by another party necessary, to operate as a defence, or to obtain a full decision on the rights of all parties. Where the court has given judgment on a suit, it will in some cases permit that judgment to be controverted, sus- pended, or avoided by a second suit ; and sometimes a second suit becomes necessary to carry into exe- cution a judgment of the court. Suits instituted for any of these purposes are also commenced by bill ; and hence arises a variety of distinctions of the kinds of bills necessary to answer the several purposes of instituting an original suit, of adding to, continuing, or obtaining, the benefit of a suit thus instituted, of instituting a cross-suit, and of impugning the judg- ment of the court on a suit brought to a decision, or of carrying a judgment into execution ; and on all the different kinds of bills there may be the same pleadings, as on a bill used for instituting an original suit. OF THE COURT OF CHANCERY. 19 It frequently happens that, pending a suit, the *™^! at of parties discover some error or defect in some of the pleadings ; and if this can be rectified by amendment of the pleading, the court will in many cases permit it. This indulgence is most extensive in the case of [18] bills ; which being often framed upon an inaccurate state of the case, it was formerly the practice to supply their deficiences, and avoid the consequences of eiTors, by special replications. But this tending to long and intricate pleading, the special repli- cation requiring a rejoinder, in which the defendant might in like manner supply defects in his answer, and to which the plaintiff might surrejoin, the special replication is now disused for this purpose, and the court will, in general, permit a plaintiff to rectify any error, or supply any defect in his bill, either by amendment, or by a supplemental bill ; and will also permit, in some cases, a defendant to rectify an error or supply a defect in his answer, either by amendment, or by a further answer. Summary jurisdiction has been given by authority fJX^Sffi-" of Parliament to courts of equity in certain cases, arising incidentally from the provisions of acts of Parliament, both public and private, without requir- ing the ordinary proceeding by bill or information, and substituting a simple petition to the court ; the assistance of the court being required only to pro- vide for the due execution of the provisions of such acts. But by an act of the 52 of Geo. III. c. 101 , a sum- ™^ t £* e of mary jurisdiction, on petition only, has been given in the case of abuses of trusts created for charitable c2 20 EXTRAORDINARY JURISDICTION purposes, which before were the subjects of informa- tion by the king's attorney-general, to which the persons of whom complaint was made might make [19] defence, according to the nature of the case stated in the information, by demurrer, plea or answer, so that the court might have before it the whole case on which its judgment might be required, and to which evidence to be produced in support of or in answer to the complaint made might be properly applied. The loose mode of proceeding authorized by this act was probably intended to save expense in inves- tigating abuses of charities : but in practice it una- voidably led to great inconvenience ; the court not having before it any distinct record to which its judgment might be properly applied, and especially with respect to those against whom complaint might be made, or those against whom no such complaint could be made, but whose interests might be effected by the judgment of the court. This inconvenience became apparent in a case which was made the sub- ject of appeal to the House of Lords, who finally de- termined, that a jurisdiction, so summary, and in which the proceedings were so loose, ought, in just construction of the act, to be confined to the simple case of abuse of a clear trust, not involving any question beyond the question of such abuse, and particularly not involving the interests of persons to whom such abuse of trust could not be imputed (b) (1). (6) Corp. of Ludlow v. Greenhouse, D. Proc. Feb. 1827. (1) On this subject, see 2 Headlam's Darnell's Ch, Pr. 1713, et seq. OF THE COURT OF CHANCERY. 21 In an inquiry into the nature of the several o«ier in which *■ ^ pleadings are pleadings thus used, it seems most convenient to considered - consider them in the order in which they have their effect, and consequently to treat, 1, of bills ; 2, of [20] the defence to bills, and therein of demurrers, pleas, answers and disclaimers; 3, of replications ; and 4, to notice matters incidental to pleadings in general, and particularly the cases in which amendments of inaccurate or erroneous pleadings are permitted. 22 [21] CHAPTER THE FIRST. OF BILLS. Section I. By whom, and against whom, a Bill may be exhibited. witel^teSftid I N treating of bills, it will be proper to consider, I. The several persons who are capable of exhi- biting a bill, by themselves, or under the protection, or in the name of others ; and against whom a bill may be exhibited : II. The several kinds and dis- tinctions of bills : and III. The frame and end of the several kinds of bills. An information differing from a bill in little more than in name and form, its na- ture will be principally considered under the general head of bills, and its peculiarities will be after- wards noticed. It has been already observed that suits on behalf of the crown and of those who partake of its prero- gative or claim its peculiar protection, are insti- tuted by officers to whom that duty is attributed (a). These are, in the case of the crown, and of those whose rights are objects of its particular attention, (a) See above, p. 7. Informations by the attorney or solicitor-general. S.I.J BY WHOM A BILL MAY BE EXHIBITED. 23 the king's attorney (b) or solicitor-general (c) ; and as [22] these officers act merely officially, the bill they ex- hibit is by way, not of petition or complaint, but of information to the court of the rights which the crown claims on behalf of itself or others, and of the inva- sion or detention of those rights for which the suit is instituted. If the suit does not immediately concern ano?her ela ers°o n n 0f the rights of the crown, its officers depend on the re- lation of some person, whose name is inserted in the information, and who is termed the relator ; and as the suit is carried on under his direction, he is considered as answerable to the court and to the par- ties for the propriety of the suit and the conduct of it (Y/). It sometimes happens that this person has Information and bill. (6) See 1 Swanst. 290, 291, 294, and Rex v. Austen, 8 Pri. Exch. R. 142. And the crown may be represented as plaintiff by the attorney-general, and as defendant by the solicitor- general, in the same suit, where there are conflicting claims be- tween the king and persons partaking of his prerogative, or under his peculiar protection. See Att. Gen. v. Mayor of Bristol, 3 Madd. 319; 5. C. 2 Jac. & W. 294; Att. Gen. v. Vivian, 1 Russ. R. 226. (c) See, as to the solicitor- general, Wilkes's Case, 4 Burr. 2527 ; Sol. Gen. v. Dory, 6 May, 1735, and Sol. Gen. v. Warden and Felloivship of Sut- ton Coldfield, Mich. 1763, in Chancery. This subject is par- ticulai-ly considered in part hi. sect. 4, of a manuscript treatise on the Star-chamber, in the British Museum, Had. MSS. vol. i. No. 1226, mentioned in 4 Bl. Com. 267. (d) 1 Russ. R. 236. It appears, as intimated in the text, that it is not absolutely necessary, even in the instances there alluded to, that a relator should be named, 2 Swanst. 520; 4 Dow. P. C. 8, although the practice of naming one seems to have been universally adopted, 1 Ves. J. 247; 4 Dow. P. C.8; 1 Sim. & Stu. 396. But it may be re- marked that the legislature, in certain special cases in which the right may be doubtful, has empowered the attorney-ge- neral to institute a suit, by in- formation, without requiring that a relator should be named. See 59 Geo. III. c. 91, and see 1 Sim. & Stu. 396. 24 BY WHOM A BILL [ClIAP. I. r231 an Merest in the matter in dispute, of the injury to which interest he has a right to complain. In this case his personal complaint being joined to, and incorporated with, the information given to the court by the officer of the crown, they form toge- imoimations ther an information and bill, and are so termed (e) (1). without a relator. But if the suit immediately concerns the rights of the crown, the information is generally exhibited with- out a relator (f) ; and where a relator has been named, it has been done through the tenderness of the officers of the crown towards the defendant, that the court might award costs against the relator, if the suit should appear to have been improperly instituted, or in any stage of it improperly con- ducted^). The queen-consort, partaking of the (e) See as instances, Att. 1 Russ. R. 226. And see Att. Gen. x.Offlender, 1 Ves. J. 247; Gen. v. Moses, 2 Madd. 294, Att. Gen. v. Brown, 1 Swanst. a case of information and bill, 265 ; Att. Gen. v. Master and in which the king having had Fell. o/Cath.Hall, 1 Jac. R.38 1 ; no interest, the attorney-general Att. Gen. v. Heelis, 2 Sim. & was an unnecessary party. Stu. 67,aiidAtt.Gen.\. Vivian, (/) Att. Gen. v. Vernon, 1 Russ. R. 226. If the relator 1 Vern. 277,370; Att. Gen. should not be entitled to the v. Crofts, 4 Bro. P. C. 136, equitable relief which he seeks Toml. Ed. for himself, the suit may never- (ff) The propriety of naming theless be supported on behalf a relator for this purpose, and of the crown, 1 Swanst. 305 ; the oppression arising from a and upon an information and contrary practice, were parti- bill, the bill alone maybe dis- cularly noticed by Baron Perrot, missed, see Att. Gen. v. Vivian, in a cause in the exchequer, Att. information and (1) An information and bill is improper, where the persons plainWrTshave no named as plaintiffs as well as relators have no individual interest : as where an information and bill is filed by three of the court of assistants of a company in respect of a charity, and by two of the objects of the charity. Attorney- Gen. v. East India Com- pany, 1 1 Sim. 380. individual ln« terest S. I.] MAY BE EXHIBITED. 25 prerogative of the crown, may also inform by her [24] attorney (h) . Suits on behalf of bodies politic and corporate, Persons who can ■*■ A * sue by themselves and of persons who do not partake of the prerogative alone ' of the crown, and have no claim to its particular protection, are instituted by themselves, either alone or under the protection of others. Bodies politic and corporate (i) , and all persons of full age, not being feme-covert, idiot or lunatic, may by them- selves alone exhibit a bill. A feme-covert, if her husband is banished (k) or has abjured the realm (/), may do so likewise; for she then may act in all respects as a feme-sole (m). Those, therefore, who Persons who ■*■ ' cannot sue by are incapable of exhibiting a bill by themselves themselvesalone ' alone, are, 1, infants; 2, married women, except the wife of an exile, or of one who has abjured the realm; 3, idiots and lunatics («). Gen. v. Fox. In that cause 14 Ves. 41 ; Bank of England no relator was named; and v. Lunn, 15 Ves. 569; Mayor of though the defendants finally Colchester v. Lawton, 1 Ves. & prevailed, they were put to an B. 226 ; Dean and Chapter of expense almost equal to the Christchurch v. Simonds, 2 value of the property in dispute. Meriv. 467; East India Comp. See 2 Swanst. 520; 1 Sim. & v.Keighley, 4 Madd. 10; Vuux- Stu. 397 ; 1 Russ. R. 236. If hall Bridge Company v. Earl the relator should die, this court Spencer, 1 Jac. R. 64 ; Presi- would appoint another. Alt. dent, $*c. of Magdalen College Gen. v. Powel, Dick. 355. v. Sibthorp, 1 Russ. R. 154. (A) lOEdw.III. 179; Col- (#) 1 Hen. IV. 1; Sybell lins, 131; 2Rol. Ab. 213. Belknap's case, 2 Hen. IV. 7, (?) 3 Swanst. 138. As ex- a; 11 Hen. IV. 1, a. b. amples of suits by such bodies, (0 Thomas of Weyland'' s case, seetheCharitableCorporationv. 19 Edw. I.; 1 lust. 133, a. Sutton, 2 Atk. 406 ; Universities (m) See Newsome v. Bowyer, of Oxford and Cambridge v. 3 P. Wms. 37. Richardson, 6 Ves. 689; Mayor (n) It may seem, that the fyc. of London v. Levy, 8 Ves. disabilities arising from out- 398; CityofLondony.Mitford, lawry, excommunication, con- friend 26 BY WHOM A BILL [CHAP. L [25] 1 . Aii infant is incapable by himself of exhibiting ke In by n their V next a bill, as well on account of his supposed want of discretion, as his inability to bind himself, and to make himself liable to the costs of the suit (o) . When, therefore, an infant claims a right, or suffers an injury, on account of which it is necessary to resort to the extraordinary jurisdiction of the court of chancery, his nearest relation is supposed to be the person who will take him under his protection, and institute a suit to assert his rights or to vindicate his wrongs ; and the person who institutes a suit on behalf of an infant is therefore termed his next friend. But as it frequently happens that the near- est relation of the infant himself withholds the right, or does the injury, or at least neglects to give that protection to the infant which his consanguinity or affinity calls upon him to give, the court, in favour viction of popish recusancy, at- in the case of excommunica- tainder, and alienage, and those tion, or by conformity in the which formerly arose from vil- case of a popish recusant, a bill lenage and profession, ought exhibited under the disability to be here noticed. Such of may be proceeded upon. At- them as subsist do not, and the tainder and alienage no other- others did not, absolutely dis- wise disable a person to sue able the person suffering under than as they deprive him of the them from exhibiting a bill. Out- property which may be the ob- lawry, excommunication (1), ject of the suit. Villenage and and conviction of popish recu- profession were in the same pre- sancy (2), are not in some cases dicament. See Chap. II. sect, any disability ; and where they 2, part 2. are a disability, if it is removed (o) Turner v. Turner, Stran. by reversal of the outlawry, by 708. purchase of letters of absolution (1) This disability is removed by the statute 53 Geo. III. c. 127, s. 3. (2) This disability is removed by the statute 31 Geo. III. c. 32. S. I.] MAY BE EXHIBITED. 27 of infants, will permit any person to institute suits on their behalf (p) (1) ; and whoever acts thus the [26] part which the nearest relation ought to take, is also styled the next friend of the infant, and as such is named in the bill (y). The next friend is liable to hu responsibility. the costs of the suit (r) , and to the censure of the court, if the suit is wantonly or improperly insti- tuted (s) : but if the infant attains twenty-one, and (p) Andrews\.Cradock,'Prec. Anon. 1 Atk. 5/0; and, where in Chan, 376; Anon. lAtk.. 570; the contrary appears to be the 2 P. Wms. 120; 1 Ves. J. 195. fact, on an application by the (q) 2 Eq. Cas. Abr. 239; defendant before answer, he will 1 Yes. J. 195. be compelled to give security (r) 4 Madd. 4G1 ; and see for costs, or another person will Turner v. Turner, 2 P. Wms. be appointed to sue in his stead, 297, S.C. on appeal, 2 Eq. Ca. Wale v. Salter, Mosely, 47; Ab. 238; and Strange, 708. Anon. Mosely, 86; Anon. 1 Ves. It is hence, of course, important J. 409 ; and see Pennington v. to the defendant that the pro- Alvin, 1 Sim. & Stu. 264 (2). chein amy, or next friend of the (s) And if the nest friend of infant, be a person of substance, an infant do not proceed in the (1) Where a bill is filed bv an annuitant, whose annuity is Misjoinder of l i • i plaintiffs. charged on residuary personal estate, and by infants who are the devisees of leaseholds, by the annuitant as their next friend, seeking payment of the annuity and the renewal of the leases for the infants ; this is a misjoinder ; for in this case one plaintiff seeks relief in which the other is not interested. Besides, if the annuitant were to die, the suit would abate, though as to that portion of it which she instituted as next friend, it would not abate but for the misjoinder. Again, supposing the court to decide the one portion of the suit in favour of the annuitant, and the other branch of it against the infants, they could procure no redress in case the annuitant, as their next friend, refused to take any further steps ; or if the reverse were to take place, the infants might be delayed in the redress awarded to them by an appeal interposed by the annuitant on his own behalf. Anderson v. Wallis, 4 Y. & C. Eq. Ex. 336 ; 1 Phil. 202. (2) As to this point, see 1 Headlam's Daniell's Ch. Pr. 80, contra. 28 BY WHOM A BILL [Chap. I. [27] Collusion, neg- lect, or mistake by him. afterwards thinks proper to proceed in the cause, he is liable to the whole costs (t). If the person who thus acts as friend of an infant does not lay his case properly before the court, by collusion, neglect or mistake, a new bill may be brought on behalf of Defect in ti.e bin. the infant ; and if a defect appears on hearing of the cause, the court may order it to stand over, with liberty to amend the bill (u) . The next friend of an infant plaintiff is considered as so far interested in the event of the suit that he or his wife (x) cannot be examined as a witness (1). If their examination is necessary for the purposes of justice, his name must be struck out of the bill, Examination of a next friend. cause, this court, if it be desir- able, will supersede him, Ward v. Ward, 3 Meriv. 706 ; 1 Jac. & W. 483 ; but the next friend of an infant cannot procure the substitution of another person to act in his place, without sub- mitting to an investigation into his past conduct by the court, Melting v. Melting, 4 Madd. 261. If the next friend should die, the court will take upon itself to appoint another, Lan- caster v. Thornton, Ambl. 398. Bracey v. Sand if or d, 3 Madd. 468. (t) In Turner and Turner, 2 P. Wms. 297, Lord King was first of opinion that upon a bill filed in the name of an infant who attained twenty-one, the plaintiff was liable to the costs, though he did not proceed after he attained that age ; but upon a rehearing he changed his opinion, and dismissed the bill without costs, the prochein amy deing dead. See 8. C. Strange, 708, and 2 Eq. Ca. Ab. 238. It now seems, that if no mis- conduct (Pearce v. Pearce, 9 Ves. 548) be proved against the next friend, either in the institution or progress of the suit, the late infant, although he should not adopt it, will be liable to the costs, Anon. 4 Madd. 461. (u) Serle v. St. Eloij, 1 P. Wms. 386. Pritchard v. Quin- c/iant, Ambl. 147. 0) Head v. Head, 3 Atk. 511. (1) This disability would seem to be removed by the statute (j & 7 Vict. c. 85. S. I.] MAY BE EXHIBITED. 29 and that of another responsible person substituted, which the court, upon application, will permit to be done ( 7/). As some check upon the general license suit not *or the . Infant's beneOt. to institute a suit on behalf of an infant, if it is represented to the court that a suit preferred in his name is not for his benefit, an inquiry into the fact will be directed to be made by one of the masters ; and if he reports that the suit is not for the benefit of the infant, the court will stay the proceedings (z) . And if two suits for the same purpose are instituted T v vo f, uits ia the 1 i infant's name. in the name of an infant, by different persons acting as his next friend, the court will direct an inquiry to be made in the same manner, which suit is most for his benefit ; and when that point is ascertained will [28] stay proceedings in the other suit (a) . 2. A married woman being under the protection 2. Mamed *■ women, who sue of her husband, a suit respecting her rights is usually ^sbM^rby' instituted by them jointly (b). But it sometimes happens that a married woman claims some right in opposition to rights claimed by her husband ; and (y) Strange, 708. As a ge- (a) 1 Ves.545; Owenv.Owen, neral rule, it may be stated that Dick. 310; Sullivan v. Sullivan, this is done upon the next 2 Meriv. 40 ; Mortimer v. West, friend giving security for the 1 Swanst. 358 ; but it seems costs incurred in his time, an application for this purpose Witts v. Campbell, 12 Ves.493 ; should not be made except iu Davenport v. Davenport, 1 Sim. a strong case, Stevens v. Stevens, & Stu. 101. 6 Madd. 97; nor generally, (z) Da Costa v. Da Costa, after a decree in one of the suits, 3 P. Wms. 140 ; Strange, 709 ; 1 Jac. R. 528. 2 Eq. Ca. Ab. 239. Such an (b) Smith v. Myers, 3 Madd. inquiry will not be directed 474 ; Farrer v. Wyatt,5 Madd. upon the application of the 4 19 ; Hughes y. Evans, 1 Sim. & next friend himself. Jones v. Stu. 185. Powell, 2 Meriv. 141. 30 BY WHOM A BILL [ChAP. I. then the husband being the person, or one of the persons, to be complained of, the complaint cannot be made by him. In such case, therefore, as the wife being under the disability of coverture cannot sue alone, and yet cannot sue under the protection of her husband, she must seek other protection, and the bill must be exhibited in her name by her next friend (c) , who is also named in the bill in the same manner as in the case of an infant (d) (1). But a bill cannot in the case of a feme-covert be filed (c) Griffith v. Hood, 2 Ves. always, in the first instance, 452 ; Lady Elibank v. Monto- liable to the costs. Strange, lieu, 5 Ves. 737; Pennington 709; 2 Eq. Ca. Ab. 239; Bar- v. Alvin, 1 Sim. & Stu. 264. lee v. Barlee, 1 Sim. & Stu. (d) But, it seems, the next 100. friend of a feme-covert is not Suits respecting (1) Husband and wife ought not to join as plaintiffs in a suit separate estate. re j a ^ n g ^o the wife's separate property, but the bill ought to be filed by the wife alone, by her next friend, and her husband ought to be made a defendant : first, because the husband may have filed the bill in his wife's name, without her knowledge or consent, and may by collusion with the other parties have the ac- counts improperly taken : and secondly, because the wife being, as to her separate estate, entitled to prosecute a suit by her own authority, independently of her husband, a suit by her and her husband, which is considered as the suit of the husband alone, would not prevent her from instituting another suit ; so that the defendant might be annoyed by two suits instead of one. If the objection is taken by demurrer, the court will give leave to amend, by striking out the name of the husband as plaintiff, and as next friend of his infant children, where he is named as such, and making him a defendant, and by inserting the name of another person as next friend. Wake v. Parker, 1 Keen, 59 ; England v. Downs, 1 Beav. 90; Owden v. Campbell, 8 Sim. 551; Sigel v. Phelps, 7 Sim. 239 ; Thorp v. Teates, 1 Y. & C. Ch. C. 438 ; Davis v. Prout, 7 Beav. 288. S. I.] MAY BE EXHIBITED. 31 without her consent (e) . The consent of an infant to a bill filed in his name is not necessary (/). 3. The care and commitment of the custody of [29] the persons and estates of idiots and lunatics are the f u "jgj aud prerogative of the crown, and are always intrusted to the person holding the great seal , by the royal sign- manual. By virtue of this authority, upon an in- quisition finding any person an idiot or a lunatic, grants of the custody of the person and estate of the idiot or lunatic are made to such persons as the lord chancellor, or lord keeper, or lords commissioners for the custody of the great seal for the time being, think proper (g). Idiots and lunatics, therefore, sue who sue by their . committees or by by the committees of their estates (/?). Sometimes, ^ a f torney -? e - indeed, informations have been exhibited by the attorney-general on behalf both of idiots and luna- tics, considering them as under the peculiar protec- tion of the crown (/), and particularly if the interests of the committee have clashed with those of the lunatic (k). But in such cases, a proper relator ought to be named (/) ; and where a person found (e) Andrews v. Cradock, Prec. (k) See Att. Gen. v. Panther, in Ch. 376 ; S. C. 1 Eq. Cas. Dick. 748. Abr. 72; 1 Sim. & Stu. 265. (I) Att. Gen. at relation of {/) Andrews v. Cradock, Griffith Vavghan, a lunatic, Prec. in Ch. 376. against Tyler and others, 11 ((/) 3 P. Wms. 106, 107; July 1764. On motion, ordered Ex parte Pickard, 3 Ves. & that a proper relator should be Bea. 127. appointed, who might be re- (h) 1 Ca. in Cha. 19; Ridler sponsible to the defendants for v. Ridler, 1 Eq. Ca. Ab. 279 ; the costs of the suit. See Dick. Prac. Reg. 272. Wy. Ed. 378; 2 Eden, 230. And see Att. {i) Att. Gen. v. Parkhurst, Gen.v.Plumptree, 5Madd.452, 1 Ca. in Cha. 112; Att. Gen. v. though the case of a charity in- Woolrich, 1 Ca. in Cha. 153 ; formation. 3 Bro. P. C. 633. Toml. Ed. 32 BY WHOM A BILL [CHAP. I. a lunatic has had no committee, such an information has been filed, and the court has proceeded to give L'^J directions for the care of the property of the lunatic, and for proper proceedings to obtain the appoint- ment of a committee (m) . other non-com. Persons incapable of acting for themselves, though potes sue by their next friend. nQ j. idiots or lunatics, or infants, have been permitted to sue by their next friend, without the intervention of the attorney-general (n) . Defendants A bill may be exhibited against all bodies politic and corporate, and all persons, as well infants, mar- ried women, idiots and lunatics, as those who are not under the same disability, excepting only the -to a bin against k mS r and queen (o) . But to a bill filed against a a married woman, o T. \ ' o idiot, or lunatic. marr i ec | woman her husband must also be a party, unless he is an exile, or has abjured the realm ; and the committee of the estate of an idiot or lunatic must be made defendant with the person whose pro- rightoof'the P er ty is under his care. Where the rights of the cerned. are con * crown are concerned, if they extend only to the superintendence of a public trust, as in the case already mentioned of a charity, the king's attorney- general may be made a party to sustain those rights ; and in other cases, where the crown is not in pos- session, a title vested in it is not impeached, and its rights are only incidentally concerned, it has gene- rally been considered that the king's attorney-gene- (m) Att. Gen. on behalf of against Thomas TVitherly and Maria Lepine, a lunatic, at the others. In chancery — Decree, relation of John Fox; and also 1 Dec. 1760. Decree on sup- Maria Lepine against Earl and plemental bill, 4 March 1779. Countess Howe and others : See Wartnahy v. Wartnahy 26 March 1793.— 3 Apr. 1794. 1 Jac. R. 377. (») Eliz. Liney, a person deaf (o) See Chap. II. sect. 1. and dumb, by her next friend, S. I.] BY WHOM A BILL 33 ral may be made a party in respect of those rights, [31] and the practice has been accordingly (p) . But where the crown is in possession, or any title is vested in it which the suit seeks to divest or affect, or its rights are the immediate and sole object of the suit, the application must be to the king by petition of right ( L A bm praym g the decree or order of the court touching some right claimed by the person exhibiting the bill, in opposition to some right claimed by the person against whom the bill is ex- wiis of interna- hibited. 2. A bill of interpleader, where the person exhibiting the bill claims no right in opposition to the rights claimed by the persons against whom the bill is exhibited, but prays the decree of the court touching the rights of those persons, for the safety certiorari bills. f the persons exhibiting the bill. 3. A bill praying the writ of certiorari to remove a cause from an in- no h t°pray 1 re C ii 1 ef d are ^ eviov court of equity. An original bill not praying atVtestfmonyand relief may be, 1. A bill to perpetuate the testimony bills of discovery. of witnesses. 2. A bill for discovery of facts rest- ing within the knowledge of the person against whom the bill is exhibited, or of deeds, writings, or other things in his custody or power. gi na I i! lls suc t h ai , e II. A suit imperfect in its frame, or become so by accident before its end has been obtained, may, in many cases, be rendered perfect by a new bill, which is not considered as an original bill, but merely as an addition to or continuance of the former bill, or supplemental both A bin f this kind may be, 1. A supple- S. II.] OF BILLS. 37 mental bill, which is merely an addition to the original. 2. A bill of revivor, which is a con- [35] tinuance of the original bill, when by death some bills of rcvivor > party to it has become incapable of prosecuting or defending a suit, or a female plaintiff" has by marriage incapacitated herself from suing alone. 3. A bill bills ° f revivor ■*• ° and supplement. both of revivor and supplement, which continues a suit upon an abatement, and supplies defects arisen from some event subsequent to the institution of the suit. III. Bills for the purposes of cross litigation of ni. Biiisinthe - 1 x ° nature of original matters already depending before the court, of con- bills " Such are troverting, suspending, avoiding or carrying into exe- cution a judgment of the court, or of obtaining the benefit of a suit which the plaintiff is not entitled to add to or continue for the purpose of supplying any defects in it, have been generally considered under the head of bills in the nature of original bills, though occasioned by or seeking the benefit of former bills: and may be, 1. A cross-bill, exhibited by the cross Mls > defendant in a former bill, against the plaintiff in the same bill, touching some matter in litigation in the first bill. 2. A bill of review, to examine and reverse mdi of review, a decree made upon a former bill, and signed by the person holding the great seal, and enrolled, whereby it has become a record of the court. 3. A bill in the SK^SSJ nature of a bill of review, brought by a person not bound by the former decree.- 4. A bill to impeach decr e l fo?fr e aud, a a decree upon the ground of fraud. 5. A bill to SaTSe, suspend the operation of a decree on special circum- stances, or to avoid it on the ground of matter arisen subsequent to it. 6. A bill to carry a decree made SecrVeffixe- 38 FRAME AND END OF THE [CHAP. I. [36] in a former suit into execution. 7. A bill in the of bin" of e rev"vo™ nature of a bill of revivor, to obtain the benefit of a suit after abatement in certain cases which do not biui m the nature admit of a continuance of the original bill. 8 A of supplemental o w- bills - bill in the nature of a supplemental bill, to obtain the benefit of a suit, either after abatement in other cases which do not admit of a continuance of the original bill, or after the suit is become defective, without abatement in cases which do not admit of a supplemental bill to supply that defect. CHAPTER I Section III. Of the frame and end of the several kinds of Bills and of Informations. Three classes of The several kinds of bills have been alreadv con- bills. sidered as divided into three classes. In the first class have been ranked original bills ; in the second, bills not original ; in the third, bills in the nature of original bills, though occasioned by former bills. The frame and end of the several kinds of bills will be treated with reference to this distribution, and the peculiarities of informations will be considered under a fourth head. t. original bins. I. Original bills have been mentioned as again divisible into bills praying relief, and bills not pray- ing relief. T371 Original bills praying relief have been ranked S. III.] SEVERAL KINDS OF BILLS. 39 under three heads. — 1. Original bills praying tftue JSwff "SSf 1 " decree of the court touching some right claimed by re the person exhibiting the bill, in opposition to rights claimed by the person against whom the bill is exhibited. 2. Bills of interpleader. And, 3. Cer- tiorari bills.— Bills of the first kind are the bills most usually exhibited in the court ; and as the several other kinds of bills are either consequences of this, or very similar to it in many respects, the consideration of bills of this kind will in a great mea- sure involve the consideration of bills in general. 1. An original bill, praying the decree of the J - ordinary ori- O » XT J o gmal bills. court touching rights claimed by the person exhi- T u he wjj must O o J i show the plain- biting the bill, in opposition to rights claimed by ££*£!£*£ the person against whom the bill is exhibited, must show the rights of the plaintiff, or person exhibiting the bill ; by whom, and in what manner, he is in- jured ; or in what he wants the assistance of the court ; and that he is without remedy, except in a court of equity, or at least is properly relievable, or can be most effectually relieved there. Having thus shown the plaintiff's title to the assistance of the court, the bill may pray, that the defendant, or per- son against whom the bill is exhibited, may answer upon oath the matters charged against him ; and it may also pray the relief or assistance of the court and pray suitable r J relief. which the plaintiff's case entitles him to. For these purposes the bill must pray, that a writ, called a Prayer for a sub. writ of subpoena, may issue under the great seal, which is the seal of the court, to require the de- fendant's appearance, and answer to the bill ; unless ["33 1 the defendant has privilege of peerage, or is a lord 40 FRAME AND END OF THE [CHAP. I. of parliament, or is made a defendant as an officer of or a letter missive, the crown (1). In the case of a peer or peeress, or lord of parliament, the bill must first pray the letter of the person holding the great seal, called a letter missive, requesting the defendant to appear to and answer the bill (a) ; and the writ of subpoena only danSnthe^Ise" in default of compliance with that request. And if of the attorney- 1 . general may ap. the attorney-general is made a defendant as an officer pear and answer. ^ w of the crown, the bill must pray, instead of the writ of subpoena (b), that he, being attended with a copy, may appear and put in an answer. It is usual to prayer for general add to the prayer of the bill a general prayer of that relief. , relief which the circumstances of the case may require ; that if the plaintiff mistakes the relief to which he is entitled, the court may yet afford him that relief to which he has a right (c), (2). Indeed it (a) This mark of courtesy is members of the House of Com- in respect of peerage generally, mons, see Act of Union with see Lord Milsington v. Earl of Ireland, 39 &40 Geo. III. c. 67, Portmore, 1 Ves. & B. 419; art. 4, and Robinson v. Lord and is to he observed towards Rokeby, 8 Ves. 601. Scotch peers, see Act of Union (b) See Barclay v. Russell, with Scotland, 5 & G Anne, c. Dick. 729 ; S. C. 3 Ves. 424. 8, art. 23, and Irish peers not (c) Hollisx. Carr, 2 Mod. 86. (1) See note (1), p. 11. Frame of prayer. (2) "Where a bill prays that an account may be taken of the dealings and transactions between the plaintiff and the defendant, who has brought an action against the plaintiff, and that the defendant may be decreed to pay to the plaintiff what shall appear to be due to him upon taking such account, the plaintiff being ready and willing to pay what, if anything, shall appear to be due from him to the defendant, the court will not decree a set-off; because with such relief the relief prayed for is totally inconsistent ; for in the case of a set-off, the defendant would not be ordered to pay the plaintiff the balance, but the balance Set off. S. III.] SEVERAL KINDS OF BILLS. 41 has been said, that a prayer of general relief, with- out a special prayer of the particular relief to which the plaintiff thinks himself entitled, is sufficient (d) ; and that the particular relief which the case requires may, at the hearing, be prayed at the bar (e). But [39] this relief must be agreeable to the case made by SSSSmSSmb the bill (/), (1) and not different from it (g) ; and by the wu.""" the court will not in all cases be so indulgent as to (d) See Cook v. Martyn, 2 Yes. 114; 2 Sch. & Lefr. 10, Atk. 3. The report of this case 729 ; 3 Swanst. 208, note. is apparently very inaccurate. (y) 2 Atk. 141 ; 3 Atk. 132; See 1 Eden. R.2G; 11 Yes. 5/4. 1 Yes. J. 426; 2 Yes. 299; Birch (e) See Wilkinson v. Bcal, v. Corbin, 9 Dec. 1784, in Chan. 4 Madd. 408. 1 Ves. J. 426 ; Lord Walpole v. (/) Beaumont v. Boultbee, Lord Orford, 3 Yes. 402; Palk 5 Ves. 485 ; Hiem v. Mill, 13 v. Lord Clinton, 12 Yes. 48. would he directed to be applied in satisfaction of the damages, if any, which the defendant would otherwise be entitled to receive. Rawson v. Samuel, Cr. & Phil. 161. (1) The plaintiff may have such relief, under the prayer for Relief under the i ■>■ t, • ■ , . prayer for general general relief, as the statement of his case entitles him to ask. 'eiief. Toj)ham v. Columbine, Taml. 135 ; Meller v. Minet, lb. 487. But after stating certain grounds for relief in the bill, he cannot have relief upon other grounds not pointed out in the bill ; because that would be a surprise upon the defendant. And hence where an equitable mortgagee seeks relief against elegits on the ground of fraud, no relief can be given on the general ground, real or supposed, tbat an equitable mortgage has priority over a title by elegit under a judgment subsequent to the mortgage, where no case is made by the bill for relief on that ground ; although, indeed, there is a charge that the plaintiff is entitled to priority in respect of the equitable mortgage over the elegits, and a prayer corresponding to such charge, but such charge does not clearly point out the general ground above men- tioned as a ground for relief, distinct from that of fraud, so as to entitle the plaintiff at the hearing to ask relief upon that general ground. Whitworth v. Gauyain, Cr. & Phil. 325. 42 FRAME AND END OF THE [CHAP. I. permit a bill framed for one purpose to answer another, especially if the defendant may be surprised S'ect. thadouble or prejudiced. If, therefore, the plaintiff doubts his title to the relief he wishes to pray, the bill may be framed with a double aspect ; that if the court de- termines against him in one view of the case, it may formatio n n an in " Y e ^ afford hi m assistance in another (//) (1). Upon an information by the attorney-general on behalf of a (k) 2 Atk. 325; and see Perry v. Phelips, 17 Ves. 173. Prayer for pay- (i) Where a bill is filed against certain members of a club, ment " as the x ' ° ' court may direct." for the recovery of money belonging to the club, and it prays that the money may be paid to the plaintiff, "or otherwise as the court may direct;" in such case, if it ought not to be paid to the plaintiff, the coui't will take care that it is paid to the persons who ought to have the management of it. Richardson v. Hast- ings, 7 Beav. 323. Prayer for relief If a bill prays relief contingently against one defendant, only in the event of the court not giving relief against another defen- dant, it is demurrable. Seddon v. Connell, 10 Sim. 79. want of offer to If a bill bv the directors of an insurance company pravs that pay back pre- miums, a policy may be delivered up to be cancelled, or that the company may otherwise be relieved therefrom in such manner as the court may think fit ; this is a submission to the judgment of the court as to the terms on which the relief is to be granted ; and there- fore it is not necessary that the plaintiffs should expressly offer to pay back the premiums received on the policy. Barker v. Walters, 8 Beav. 92. Want of offer to Where a person conveys an estate, in trust, out of the rents, redeem prior in- iiii> i cumbrance. or by a sale or mortgage thereof, to pay a debt, and afterwards mortgages it, and the mortgagee files a bill, praying an execution of the trusts of the prior deed, and payment of the prior debt in the first place, and then of the mortgage debt due to himself; the bill is demurrable for want of an offer to redeem the prior incumbrancer, or to pay him any deficiency there may be, in case the sum realised by the sale of the estate should be less than the prior debt. Cave v. Foulks, 5 Law J. Ch. Rep. (N. S.) 206, M. R. Sect. III.] several kinds of bills. 43 charity, the court will give the proper directions as to the charity, without regarding the propriety or impropriety of the prayer of the information (i). All persons interested in the subject of the suit £^*™ l e ™ ,e " ought generally to be parties (k), if within the ju- risdiction of the court (/). Who are the necessary [40] parties to a suit will be considered in the next chapter, in treating of demurrers ; but if any neces- sary parties are omitted, or unnecessary parties are inserted, the court, upon application, will in general permit the proper alterations to be made. The cases in which this permission is usually granted, and the terms upon which it may be obtained, will be more particularly the subject of consideration in the fourth chapter. It is the practice to insert in a bill a general charge, Remarks on the x <_><_> charge of combi- that the parties named in it combine together, and with several other persons unknown to the plaintiff', whose names, when discovered, the plaintiff* prays (<*) Att. Gen. v. Jeanes, 1 relation to suits for relief, Paiv- Atk. 355 ; 1 Ves. 43, 72, 4 1 8 ; let v. Bishop of London, 2 Atk. Att. Gen. v. Breton, 2 Ves. 296 ; Poore v. Clarke, 2 Atk. 426, 427; 11 Ves. 247, 3G7 ; 515; 1 Ves. J. 39; 7 Ves. 563; 2Jac. &W. 370; and it seems 1 Meriv. 262; 3 Meriv. 512, that a similar observation would lias been said, but upon some- in some instances apply upon what doubtful authority, not to a bill filed on behalf of an in- apply where discovery alone is fant, Stapilton v. Stapilton, 1 sought, Sangosa v. JS. I. Comp. Atk. 2; and see Durant v. 1 Eq. Ca. Ab. 170. Durant, 1 Cox, 58, in which, on (7) As to mode of framing reference to the record, it ap- the bill, where a defendant is pears tbat the daughter was an out of the jurisdiction, see 1 infant, Reg. Lib. 1783, p. 192. Sch. & Lefr. 240 ; Wilkinson (k) Tins proposition, al- v. Beal, 4 Madd. 408. though undoubtedly correct in nation. 44 FRAME AND END OF THE [CHAP. I. he may be at liberty to insert in the bill. This prac- tice is said to have arisen from an idea that without such a charge parties could not be added to the bill by amendment ; and in some cases perhaps the charge has been inserted with a view to give the court jurisdiction. It has been probably for this reason generally considered, that a defendant de- murring to a bill comprising persons whose interests are so distinct that they ought not to be made parties to the same bill, ought to answer the bill so far as to deny the charge of combination. The denial of combination usually inserted as words of course at the close of an answer, is a denial of unlawful corn- el] bination ; and it has been determined that a general charge of combination need not be answered (m). An answer to a charge of unlawful combination can- not be compelled ; and a charge of lawful combina- tion ought to be specific to render it material. For where persons have a common right they may join together in a peaceable manner to defend that right ; and though some of them only may be sued, the rest may contribute to the defence, at their common charge (//) : and if on the ground of such a combina- tion the jurisdiction of a court of equity is attempted to be sustained, where the jurisdiction is properly at the common law, the combination ought to be specially charged, that it may appear to warrant the assumption of jurisdiction by a court of equity. From whatever cause the practice of charging com- bination has arisen, it is still adhered to, except in (in) See Oliver v. Haywood, (n) See Lord Howard v. Bell, 1 Anstr. Exch. Rep. 82. Hob. 91. S. III.] SEVERAL KINDS OF BILLS. 45 the case of a peer, who was never charged with com- bining with others to deprive the plaintiff of his right, either from respect to the peerage, or perhaps from apprehension that such a charge might be con- strued a breach of privilege (1). The rights of the several parties, the injury com- SSonfwu!" plained of, and every other necessary circumstance, as time, place, manner, or other incidents, ought to be plainly yet succinctly alleged. Whatever isJg>deofaiieg«. essential to the rights of the plaintiff, and is neces- sarily within his knowledge, ought to be alleged positively (w) , and with precision (0) (2) ; but the [42] («) It has been determined, man, 1 Ves. J. 287; Cressett v. upon demurrer, that it is not a Mytton, 3Bro.C. C.481; Ryves sufficient allegation of fact in a v. Ryves, 3 Yes. 343 ; Mayor bill, to state that the plaintiff is of London v. Levy, 8 Ves. 398; so informed. Lord tJxbridge v. Carew v. Johnston, 2 Sch. & Staveland, 1 Ves. 56. Lefr. 280; Albretcht v. Suss- (0) Seel?. I. Comj). v. Hench- man, 2 Ves. & Bea. 323. (1) It is wholly unnecessar}', and it is therefore the practice of some draftsmen to omit it. See page 50, infra. (2) I. With respect to a ivant of sufficient particularity — Where a mortgage debt has been due for more than twenty Allegation to years, a general allegation that all interest has been paid is not statute of Umita. sufficient to support a proof that interest was paid from time to against anequity time during the twenty years, so as to prevent the Statute of of redem r ,tion - Limitations from operating ; for, consistently with the truth of this allegation, the interest might have been paid in a lump. Greyson v. llindley, 10 Jur. 383. — V. C. E. If a bill prays that the trustee of leasehold property may be statement or declared to be a trustee for the plaintiff, as claiming through a to obtain an in- i .. t , ... , , , ... terest accruing on person to whom it accrued by an intestacy, the bdl must state or an intestacy. charge that the intestate did not dispose of or incumber the property, and that it was not applied in or required for the pay- ment of his debts. See Stephens v. Frost, 2 Y. & C. Eq. Ex. 297. In stating a title by descent in the plaintiff, it is necessary that Allegation of a ° J r J title by descent. 46 FRAME AND END OF THE [CHAP. I. claims of the defendant may be stated in general terms ; and if a matter essential to the determina- AllegatioD that a defendant is a re- presentative of a firm. Allegation as to a foreign instru- ment being void. Statement or charge of admis- sions, by a defen- dant. Letters and con- versations not put in issue. illegition of ac- quiescence in a nuisance. all the links which constitute the chain of descent should be stated. Baker v. Harwood, 7 Sim. 373. An allegation that a defendant is the representative of a firm is not sufficient to admit proof of circumstances which might have made that party not only a representative, but actually the party carrying on the business. Schneider v. Lizardi, 15 Law J. (N. S.) 435, M. R. Where a foreign instrument is intended to operate according to a law which is not known in England, and which, as foreign law, is to be proved as a fact to the cause, an allegation that such instrument is void is too vague. The Duke of Brunswick v. The King of Hanover, 6 Beav. 59. Where a plaintiff means to rely on an admission made to a per- son whom he intends to examine as a witness, it is necessary that he should state or charge, not merely that such an admission was made, but that it was made to that person, in order to give the defendant an opportunity of cross-examining such person, or of otherwise meeting the case made upon the evidence. Austin v. Chambers, 6 CI. & Fin. 38. And where a plaintiff proceeds against a defendant upon the ground of admissions made by the defendant of his having had notice, he ought to mention in the bill the date of such admissions, and the names of the persons to whom they were made, in order to give the defendant an oppor- tunity of meeting the case. Earle v. Pickin, 1 Russ. & M. 547. Letters proved in the cause, but not referred to in the plead- ings, are inadmissible in evidence, even on the question of costs. Whitley v. Martin, 3 Beav. 226. Conversations not put in issue cannot be used in evidence. But when communications are stated in the answer, the plaintiff has a right to show the real nature of those communications, although they are not referred to in the bill. Graham v. Oliver, 3 Beav. 124. But see Hughes v. Garner, 2 Y. & C.Eq. Ex. 328. Where a bill seeks to restrain a defendant from prosecuting an action for a damage caused by a nuisance, and, as a ground for such relief, it alleges that he acquiesced in and encouraged the erection causing the nuisance, such an allegation is suffi- cient to let in evidence of such particular acts of encourage- ment as would amount to an equity against the defendant ; and a S. III.] SEVERAL KINDS OF BILLS. 47 tion of the plaintiff's claims is charged to rest in the knowledge of the defendant, or must of necessity be within his knowledge, and is consequently the demurrer for want of equity, on account of the generality of the allegation, will not lie, although it may turn out that there is not evidence of such an encouragement as will constitute an equity. Williams v. Earl of Jersey, Cr. & Phil. 91. Where a bill charges generally that there are errors in an charging errors ° ° • , generally and re- account, and that they appear in a certain report of an ac- femng to an ac- i • •«•> • i • i i i -n n count in the plain- countant in the plaintiff s possession, which the bill calls upon tirPs possession. the defendant to inspect, but it does not specifically point out the errors ; neither that report nor evidence of the errors pointed out in it can be recorded, although the report is stated, and the alleged errors in the account are explained in a cross bill by the defendant. Shepherd v. Morris, 4 Beav. 252. Where a bill impeaching a voluntary settlement on the Reference to a i^i-ii r>i li schedule in the ground ot the indebtment of the settlor, does not state the insolvent Court. particulars of the debts, but refers to a schedule of debts in the Insolvent Debtors' Court, in aid of the suit ; the existence of the debts is not sufficiently put in issue, as against an infant or a married woman, but an inquiry will be directed on the point. Townsend v. Westacott, 2 Beav. 340. II. With respect to the mode of putting a specific allegation — A statement that "the defendant alleges, and the plaintiff Allegation of . belief. believes the fact to be," is not a sufficient allegation of a material fact. Egremont v. Cowell, 5 Beav. 620. A charge that the contrary of a pretence is the truth is equi- charge of the i ii » ,, . „ , „ , , contrary of a pre- valent to an allegation or the negative of the fact pretended, tence. (Harrison v. Wiltshire, 4 Law J. Ch. Rep. (N. S.) 260. (Lord Commissioner Shadwell.) So that a bill, by charging the contrary of a pretence that a right has not been established at law, suffi- ciently avers the establishment of the right at law. The Mayor, Aldermen, and Burgesses of Rochester v. Lee, 15 Law J. Ch. Rep. (N. S.) 97. If a bill insists that a will was a good execution of a power at stating a title to law, and, if not, in equity; and then prays that the defect, if any, or in equity. may be supplied against the defendant, the bill is demurrable : for the court cannot act upon an hypothetical bill, desiring relief either at law or in equity, according to the result of the argu- ment. Edwards v. Edwards, Jac. 335. 48 FRAME AND END OF THE [CHAP. I. subject of a part of the disco very sought by the bill, a precise allegation is not required (p) (1). (p) See Baring v. Nash, 1 Yes. & Bea. 551. III. With respect to the rule of construction — Allegations are to be taken most strongly against the party making them. Benson v. Hadfield, 5 Beav. 546. breach U of n trL a t. And hence, in order to charge a party with a breach of trust, it is necessary that the case made against him by the bill should be such as to be incapable of being construed otherwise than as a case of a breach of trust. Attorney-General v. The Mayor of Norwich, 2 My. & C. 406. A atfon iatlVe aUe " Where a party makes alternative allegations, the opposite party is entitled to adopt whichever of the alternative allegations he pleases. Williams v. Flight, 5 Beav. 41. Allegation that a Where a bill of discovery is filed in aid of an action of covenant lessor was "seised °r otherwise well which could not be sustained unless the person granting the lease containing the covenant had the legal estate, and the bill states that such person was "seised or otherwise well entitled," and there are no other expressions showing that he had the legal estate, the defendant has a right to take the statement most against the pleader, and as meaning that the lessor was "otherwise entitled," or had an equitable title only. Balls v. Musgrave, 3 Beav. 284. Se'ambiguous 3 Although it is a rule that an allegation is to be taken most word - strongly against the pleader, yet where a word may per se be understood in two different senses with equal fairness, and if understood in the one sense the bill would be demurrable, whereas if understood in the other sense, the bill would be cor- rectly framed, the former construction will be adopted : as where a bill for tithes is filed by a lessee thereof and by the vicar, and the bill states that the vicar "demised" the tithes to the lessee, and the vicar would be improperly made a co-plaintiff, if the demise were by deed, but not if it were by parol. Foot v. Bessant, 3 Y. & C. Eq! Ex. 320. EUSSSZ* 0) If a biU for relief » s <> ™gue that it does not state any uncertainty. certain case upon which a court of equity will grant relief, it will be demurrable for want of equity, although the plaintiff alleges his inability to state circumstances more definitely, and prays a discovery. Wormald v. Be Lisle, 3 Beav. 18. Allegations that an heir was brought up in poverty and with- S. III.] SEVERAL KINDS OF BILLS. 49 As the bill must be sufficient in substance, so it must have convenient form (y). The form of an ori- Paits ofawii. ginal bill commonly used consists of nine parts : — The first part is the address of the bill to the person Address. holding the great seal, the terms of which are always prescribed by the court upon every change of the custody of the seal, or alteration in the style of the person to whom it is committed. In the second s^iptTonsonhe . plaintiff's. place are contained the names of the parties com- plainants, and their descriptions (;•), in which their abode is particularly required to be set forth, that the court, and the parties defendants to the bill, may know where to resort to compel obedience to any order or process of the court, and particularly for [43] payment of any costs which may be awarded against the plaintiffs, or to punish any improper conduct in the course of the suit. The third part contains the statin s-p ; "''- case of the plaintiffs (1), and is commonly called the (q) 9 Edw. IV. 41. Prac. plaintiff, is not considered to be Reg. 57. Wy. Ed. an allegation of the truth there- (?•) It seems, however, that, of, see Albretcht v. Sussman, the description, so given, of a 2 Ves. & Bea. 323. out education, and kept in ignorance of his rights, and supplied with small sums of money, are too vague allegations of fraud to support a bill of discovery. A bill so framed is designated a fishing bill. Munday v. Knight, 3 Hare, 497. (1) There is no rule that a fact on which the plaintiff s introduction of; . . ,. _ . .... . -, fact in the chars; title to reliet depends, it introduced by way of charge, is noting part, as well pleaded as if it were introduced in the shape of what is technically called a statement, where such charge is a specific averment of the fact. Houghton v. Reynolds, 2 Hare, 264 ; and see Harrison v. Wiltshire, 4 Law J. (N. S.), 2G0, and The Mayor of Rochester v. Lee, 15 Law Ch. It. J. (N. S.) 97, supra, p. 47, note. 50 FRAME AND END OF THE [CHAP. I. charge of confe- stating-part of the bill (s). In the fourth place is the general charge of confederacy against the persons complained of, which has been already mentioned as commonly inserted, though it seems unnecessary. — charging-part. Fifthly, if the plaintiffs are aware of a defence which may be made, and have any matter to allege which may avoid it, the general charge of confederacy is usually followed by an allegation that the defendants pretend or set up the matter of their defence, and by a charge of the matter which may be used to avoid it. This is commonly called the charging- part of the bill, and is sometimes also used for the purpose of obtaining a discovery of the nature of the defendant's case, or to put in issue some matter which it is not for the interest of the plaintiffs to ad- mit ; for which purpose the charge of pretence of the defendant is held to be sufficient (t). Thus, if a bill is filed on any equitable ground by an heir, who ap- prehends his ancestor has made a will, he may state his title as heir ; and alleging the will by way of pre- tence of the defendant's claiming under it, make it a Allegation of ju- part of the case without admitting it. The sixth part risrtiction. L v r of the bill is intended to give jurisdiction of the suit to the court by a general averment that the acts com- plained of are contrary to equity, and tend to the [44] injury of the complainants, and that they have no remedy or not a complete remedy, without the as- sistance of the court ; but this averment must be sup- ported by the case shown in the bill, from which it (s) See 1 1 Ves. 5/4. See also Flint v. Field, 2 Anstr. (t) 3 Atk. 626 ; 11 Ves. 575. 543. S. III.] SEVERAL KINDS OF BILLS. 51 must be apparent that the court has jurisdiction (1). The bill having shown the title of the persons com- Prayer for an '-' x answer ; plaining to relief, and that the court has the proper jurisdiction for that purpose, in the seventh place prays, that the parties complained of may answer all the matters contained in the former part of the bill, not only according to their positive knowledge of the facts stated, but also according to their remembrance, to the information they may have received, and the belief they are enabled to form on the subject (2). A principal end of an answer upon the oath of the de- fendants, is to supply proof of the matters necessary to support the case of the plaintiffs ; and it is there- fore required of the defendants, either to admit or deny all the facts set forth in the bill, with their at- tending circumstances, or to deny having any know- ledge or information on the subject, or any recollec- tion of it, and also to declare themselves unable to form any belief concernins; it. But as experience has including the in- "* u x terrogating part proved that the substance of the matters stated and charged in a bill may frequently be evaded by answer- ing according to the letter only, it has become a prac- tice to add to the general requisition that the de- fendants should answer the contents of the bill, a re- petition, by way of interrogatory, of the matters most essential to be answered, adding to the inquiry after each fact an inquiry of the several circumstances (1) The remark already made as to the charge of combina- tion, (note (1) to page 45), is also applicable to the jurisdiction clause. (2) The 19th order of Aug. 1841, prescribes the form of this part of the bill. See infra, page 52, note. e2 52 FRAME AND END OF THE [ChAP. I. which may be attendant upon it, and the variations to i"45] which it maybe subject, with a view to prevent eva- sion, and compel a full answer ( 1 ). This is commonly termed the interrogating-part of the bill (2) ; and as ^u'liTuuenoga- 0) Another object for which particular interrogatories are put tones - is to call the matters of which discovery is sought to the remem- brance of the defendant, where he might otherwise inadvertently, and not through wilful evasion, state that he was unable to afford information, interrogatories as The usual way of interrogating as to a document in a bill, is, to to documents. . . ask generally, whether it was not in the words and figures, or to the purport and effect thereinbefore in that behalf mentioned and set forth, or in some other and what words and figures, or to some other and what purport and effect? But if the defendant says he is unable to set forth whether it was to the purport and effect stated, or to what other purport or effect ; and yet it is a document to which he himself was a party, or of the purport or effect of which it is probable that he has some knowledge, it may often be expedient to amend the bill by interrogating him step by step as to particulars expressed in the document, in order to direct his attention to each point, and suggest to his miud some points which he may remember when thus particularly interro- gated as to them. In Nelson v. Ponsford, 4 Beav., Lord Lang- dale, M. R. observed, "It is probable that the defendant knows more than is stated in the answer. He has not, however, been interrogated, step by step, as to the rent and the other particulars of the agreement It is possible he may be able to answer some of the particulars in detail, if put to him by amendment." orders of August, (\>) By the 1 (3 th order of August, 1841, "A defendant shall 1841. as to inter- \ J J o > > rogatories and the not be bound to answer any statement or charge in the bill, unless obligation to .,,. ,, iir-i answer them. specially and particularly interrogated thereto ; and a defendant shall not be bound to answer any interrogatory in the bill, except those interrogatories which such defendant is required to answer ; and where a defendant 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." By the 1 7th order, " The interrogatories contained in the interrogating part of the bill shall be divided as conveniently as S. III.] SEVERAL KINDS OF BILLS. 53 it was originally used only to compel a full answer to the matters contained in the former part of the bill, it may be from each other, and numbered consecutively 1, 2, 3, &C, and the interrogatories 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 re- spectively 1, 2, 3, &c, 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 de- fendant shall require to be furnished with a copy of the whole bill." By the 18th order, "The note at the foot of the bill, spe- cifying the interrogatories 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." By the 19th order, "Instead of the words of the bill now in use preceding the interrogating part thereof, and be- ginning 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 answer make to such of the several interrogato- ries hereinafter numbered and set forth as by the note hereunder written, they are respectively required to answer; that is to sav, — 1 . Whether, &c. 2. Whether, &c." The 17th order of August, 1841, was intended to apply to cases in which there were several defendants answering sepa- rately. Bate v. Bate, 7 Beav. 528. And this order does not require a number to be prefixed to each interrogatory, but merely that the various portions of the interrogating part should be divided and distinguished from each other by numbers, as conveniently as may be, in order clearly to 54 FRAME AND END OF THE [CHAP. I. must be founded on those matters (u). Therefore, if there is nothing in the prior part of the bill to warrant an interrogatory the defendant is not compellable to answer it : a practice necessary for the preservation of form and order in the pleadings, and particularly to keep the answer to the matters put in issue by the bill. But a variety of questions may be founded on a single charge, if they are relevant to it (x). Thus, if a bill is filed against an executor for an ac- count of the personal estate of his testator, upon the single charge that he has proved the will may be founded every inquiry which may be necessary to ascertain the amount of the estate, its value, the dis- position made of it, the situation of any part remain- ing undisposed of, the debts of the testator, and any other circumstance leading to the account required. Prayer for relief . The prayer of relief is the next and eighth part of the bill, and is varied according to the case made, concluding always with a prayer of general relief, at prayerof pro- the discretion of the court ( u). — To attain all the ends cess. w J of the bill, it, ninthly and lastly, prays that process (w) 1 Ves. 538 ; 6 Ves. 62 ; 373 ; 1 1 Ves. 5/4. Faulder v. Stuart, 1 1 Ves. 296 ; (a?) 1 Ves. 318 ; 1 1 Ves. 301 . Bullock v. Richardson, 11 Ves. (y) Vide sup. p. 40. point out to each defendant what part of the bill he is required to answer. And where a defendant is required to answer to an interroga- tory of a specified number, he must answer not only the question to which the number is immediately prefixed, but all others, if any, that may come under that number, or in any other words, all others, if any, that intervene between that question and the next number. Boutcher v. Branscombe, 5 Beav. 54 1 . S. III.] SEVERAL KINDS OF BILLS. 55 may issue (y) requiring the defendants to appear to and answer the bill, and abide the determination of [46] the court on the subject ; adding, in case any defend- ant has privilege of peerage, or is a lord of parliament, a prayer for a letter missive before the prayer of pro- cess ; and in case the attorney-general, as an officer of the crown, is made a defendant, the bill, as before observed, instead of praying process against him, prays that he may answer it upon being attended with a copy ( 1 ) . For the purpose of preserving pro- p»yer for an in. perty in dispute pending a suit, or to prevent evasion Jgj*? nc exec " of justice, the court either makes a special order on the subject, or issues a provisional writ; as the writ of injunction, to restrain the defendant from proceeding at the common law against the plaintiff, or from com- mitting waste, or doing any injurious act (z) ; the writ of ne exeat regno to restrain the defendant from avoiding the plaintiff's demands by quitting the king- dom (a) ; and other writs of a similar nature. When (y)They alone are defendants & B. 349 ; but there are excep- against whom process is prayed. tions to this general rule, see See Fawkes v. Pratt, 1 P. Wright v. Atkyns, 1 Ves. & Wms. 5 ( J3 ; and Windsor v. B. 313; Casamajor v. Strode, Windsor, Dick, 707. 1 Sim. & Stu. 381 ; Amory v. {:) It is a general rule, that Brodrick, 1 Jac. R. 530. the writ of injunction will not (a) It seems requisite that be granted unless prayed for by the writ of ne exeat regno should a bill which is already filed, be prayed for by bill. Anon. 6 Savory v. Dyer, Ambl. 70, or Madd. 2 70 ; unless the appli- under special circumstances, cation be made in a cause de- which the party applying un- pending. Collinson v. • , 18 dertakes to file forthwith. Ves. 353 ; Moore v. Hudson, (j M'Namara v. Arthur, 2 Ball Madd. 218; see further on the (1) See note (1) to page 11, supra. 56 FRAME AND END OF THE [ClIAP. I. [47] a bill seeks to obtain the special order of the court, or a provisional writ, for any of these purposes, it is usual to insert, immediately before the prayer of pro- cess, a prayer for the order or particular writ which the case requires ; and the bill is then commonly named from the writ so prayed, as an injunction-bill, or a bill for a writ of ne exeat regno (1). Sometimes the writ of injunction is sought, not as a provisional remedy merely, but as a continued protection to the rights of the plaintiff; and the prayer of the bill must then be framed accordingly. insertion of the These are the formal parts of an original bill as sewa tc going usua i]y fr am ed. Some of them are not essential, and particularly it is in the discretion of the person who prepares the bill, to allege any pretence of the de- fendant, in opposition to the plaintiff's claims, or to interrogate the defendant specially. The indiscri- minate use of these parts of a bill in all cases has given rise to a common reproach to practisers in this line, that every bill contains the same story three times told. In the hurry of business it may be difficult to avoid giving ground for the reproach ; but in a bill prepared with attention the parts will subject of this writ, Hyde v. Leake v. Leake, 1 Jac. & "W. Whitfield, 19Ves. 342; Raynes 605 ; Graves v. Griffith, 1 Jac. v. Wyse, 2 Meriv. 472 ; Flack &W. 646 ; Blaydesx. Calvert, v. Holm, 1 Jac. & \V. 405, 2 Jac. & W. 211 ; Pannell v. and the cases therein cited, Taylor, 1 Turn. R. 96. Ne exeat not (1 ) A ne exeat will not be granted, unless prayed for by the bill, prayed for! es: at least where it appears that the plaintiff at the time of filing the bill knew that the defendant intended to leave the kingdom. Sharp v. Taylor, 11 Sim. 50. S. III.] SEVERAL KINDS OF BILLS. 57 be found to be perfectly distinct, and to have their separate and necessary operation. The form of every kind of bill bears a resemblance £™ °4 b n i i^ not to that of an original bill ; but there are necessarily ° r,Kin ' 1 some variations, either arising from the purposes for which the bill is framed, or the circumstances under which it is exhibited ; and those variations will be noticed, together with the peculiarities attending each kind of bill. Every bill must be signed by counsel (a) ; and [48] if it contains matter criminal, impertinent (1), or f u ° r u e " sel ' S£ife ' na " Scandal and (a) Dillon v. Francis, Dick. declared that the signature of impertinence. 68 ; French v. Dear 5 Ves. counsel to a hill is to he regard- 547; 2 Yes. &B. 358; Kirkley ed as a security, that, judging v. Burton, 5 Madd. 378, n. ; from written instructions laid Webster v. Threlfall, 1 Sim. & before him of the case of the de- Stu. 135 ; Pitt v. Macklew, 1 fendant as well as of the plain- Sim. & Stu. 136, n. Lord Eldon tiff', there appeared to him, at (1) The setting forth important documents verbatim is not Prolixity. impertinence, but, if unnecessary, it may be visited in costs. Lowe v. Williams, 2 S. & S. 574. Although it is not necessary, in an information that relators impertinence. o J 3 statement snow should have any interest in the subject of the suit, yet a state- i»g the interest of J J . relators. ment showing the nature of their interest is not impertinent, but is convenient, as, in the event of the information failing, the court is thereby enabled to make the parties pay the costs who are parties beneficially interested in the property. Richards v. The Attorney General, 12 CI. & Fin. 30. In U'oods V. Woods, 10 Sim. 215, the bill stated that a will Unnecessary 1 -1 1 worlls . in which there were several words mis-spelt, was " in the words and figures hereunder set forth, the inditing and spelling thereof being set forthwith the greatest accuracy;" and Sir L. Shad- ircll, V. C, held that this preface was impertinent ; and that it would have been sufficient to allege that the testator made his will " as follows :" — For other cases on this subject, see note (1) to original page [313], infra. 58 FRAME AND END OF THE [ChAP. I. scandalous, such matter may be expunged, and the counsel ordered to pay costs to the party ag- grieved (b). But nothing relevant is considered as scandalous (c) (1). 2. Biiu of inter- 2. Where two or more (d) persons claim (e) the pleader. . / /• \ same thing (2) by different or separate interests (J ), the time of framing it, good (e) See 2 Ves. Jun. 107; 15 ground of suit. 3rd June, 1826, Ves. 245 ; Stevenson w.Ander- MSS. And see 3 Ves. 501. son, 2 Ves. & B. 407 ; Morgan (b) Ord. in Cha. Ed. Bea. v. Marsack, 2 Meriv. 107. 165. Emerson v. Dallison, 1 (/) And this may be where Ch. Rep. 194 ; 6 Madd 252. the claim of one is by virtue of (c) 2 Ves. 24 ; 15 Ves. 477. an alleged legal, and that of the (d) Angel v. Hadden, 1 5 other upon an alleged equitable, Ves. 244. right, Paris v. Gilham, Coop. Scandal and im- (1) Montriou v. Carrick, 6 Jur. 97, V. C. W. pertinence. j n a j^ij impeaching the validity of a will on the ground of undue influence over the testator, exercised by a female who takes under such will, an allegation that prior to the date of the will she engaged in a criminal connection with him, and openly cohabited with him as if she had been his wife, is not scandalous or impertinent. Anonymous, 1 My. & C. 78. So, if in a bill for setting aside a will on the ground of fraud and undue influence practised on the testator by a female, there are allegations and interrogatories founded thereon, relating to her cohabitation with the testator, though a married man, they are not scandalous or impertinent, as they relate to that which may be most material in the chain of evidence of undue influence. Evans v. Owen, 5 Law J. Ch. Hep. (N.S.) 74, M. R. In a bill against an executor, praying for a receiver and an injunction against the receipt of the assets by the executor, on account of his misconduct, it is not scandalous nor impertinent to enter into minute details in order to prove that the executor is a person of drunken, violent, and disorderly habits, and of great poverty : for these details, as evidence of conduct, are material to the decree asked ; and the court will not limit the number of instances which the plaintiff may adduce for the purpose of strengthening his case. Everet v.Prytherych, 6 Jur. 3. V. C. B. (2) Glyn v. Duesbury, 11 Sim. 139. S. III. J SEVERAL KINDS OF BILLS. 59 and another person , not knowing to which of the claim- ants he ought of right to render a deht or duty (g), or to deliver property in his custody (/*), fears he may be hurt by some of them (i), he may exhibit a bill of [49] interpleader against them (k) (1). In this bill he CoBtents thereof - must state his own rights, and their several claims ; and pray that they may interplead, so that the court may adjudge to whom the thing belongs, and he may be indemnified. If any suits at law are brought against him, he may also pray that the claimants may be restrained from proceeding till the right is determined (/). As the sole ground on which the iurisdiction of Affidavit in sup. o o port. the court in this case is supported is the danger of R. 56 ; Martinius v. Helmuth, 1 Meriv. 405. It may be ob- 2 Ves. & B. 412 (2nd edit.) ; served that he must not himself Morgan v. Marsack, 2 Meriv. claim any interest in the pro- 107. perty ; Mitchell v. Hayne, 2 0) 1 Eq. Ca. Abr. 80 ; 2 Sim & Stu. 63. Ves. Jun. 310 ; and see Fare- (i) ] Eq. Ca. Ab. 80. brother v. Prattent, 1 Dan. (k) 2 Eq.Ca.Ab. 1/3; Cooper Exch. R. 64 ; Farebrother v. v. Chitty, 1 Burr. 20, and see Harris, ibid. 68. ib. 37; Prac. Reg. 78 ; Wy. Ed. {h) This will not extend to (I) Prac. Reg. 78, Wy. Ed. ; cases of bailment where the E. I. Comp. v. Edwards, 18 parties may be compelled to in- Ves. 376 ; Croggon v. Symotis, terplead at law. See Langston 3 Madd. 130 ; See 1 Jac. R. v. Boylston, 2 Ves. Jun. 101 ; 205. (1) It is essential to the character of a plaintiff to a bill of Want of interest i ■ -\r " n plaintiff in a interpleader, that he should have no personal interest. Moore v. bin of interpiea- Usher, 7 Sim. 383. A bill is not sustainable as a bill of interpleader, where it raises mil ofinterpiea- a question between the plaintiff and one of the defendants : as tio^betneen 111 ^ where it alleges that interest on a sum secured by a policy is not Pendant. an< due from the insurance company by whom the bill is filed. Big- nold v. Audland, 1 1 Sim. 24. (')() FRAME AND END OF THE [ClIAP. I. injury to the plaintiff from the doubtful titles of the defendants, the court will not permit the proceeding to be used collusively to give an advantage to either party, nor will it permit the plaintiff to delay the pay- ment of money due from him, by suggesting a doubt to whom it is due ; therefore, to a bill of interpleader the plaintiff must annex an affidavit that there is no collusion between him and any of the parties (m) ; and if any money is due from him he must bring it into court, or at least offer so to do by his bill(w) (1). [50 J 3. When an equitable right is sued for in an in- of '(SSonri. 1 " 11 ferior court of equity, and by means of the limited jurisdiction of the court the defendant cannot have complete justice, or the cause is without the juris- diction of the inferior court ; the defendant (o) may file a bill in chancery, praying a special writ, called a writ of certiorari, to remove the cause into the court (m) 2 Eq. Ca. Ab. 173; Er- be granted unless the money rington x.Att. Gen. Bunb. 303; should have been actually paid 2 Ves. & B. 410; 1 Jac.R. 205. into court, Dungey v. Angove, 3 (n) Prac. Reg. 79, Wy. Ed.; Bro. C. C. 3(5. And it may be Earl of Thanet v. Patteson, observed, that where the whole 3 Barnard, 247; 2 Yes. J. 109 ; subject matter of the suit is Burnett v. Anderson, 1 Meriv. money, and the same has been 405 ; Warington v. Whedtstone, paid into court, and the cause 1 Jac. R. 202 ; E. I. Comp. v. heard, the suit is at an end, so Edwards, 18 Ves. 376; and see far as the plaintiff is concerned. Statham v. Hall, 1 Turn. R. See Anon. 1 Vera. 351; 3 30. In some instances it seems, Barnard, 250. that if an injunction should (o) Sowton v. Cutler, 2 Chan. have been prayed it would not Rep. 108. (1) For further information on this subject, sec infra, original pp. [141—143.] S. III.] SEVERAL KINDS OF BILLS. ()l of chancery (p). This species of bill, having no other contents thereof. object than to remove a cause from an inferior court of equity, merely states the proceedings in the in- ferior court, shows the incompetency of that court, and prays the writ of certiorari. It does not pray that the defendant may answer, or even appear to the bill, and consequently it prays no writ of sub- poena {(}). The proceedings upon the bill are pecu- SS?. ings liar, and are particularly mentioned in the books which treat of the practice of the court (?*). It may seem improper to consider certiorari bills under the heads of bills praying relief; but as they always [51] allege some incompetency of the inferior court, or in- justice in its proceedings (V), and seek relief against that incompetency or injustice, they seem more pro- perly to come into consideration under this head than under any other. In case the court of chancery removes the cause from the inferior court, the bill exhibited in that court is considered as an original bill in the court of chancery, and is proceeded upon as such. Original bills not praying relief have been already original bins not *■'><-> J praying relief. mentioned to be of two kinds, 1, bills to perpetuate the testimony of witnesses; and 2, bills of discovery. (p) Prac. Reg. 41 ; Boh. tiorari. See 1 Ca. in Cha. 31. Priv. Lond. 291 ; Hilton v. (r) Prac. Reg. 82, Wy. Ed. ; Lawson, Cary's Rep. 48; 1 Stephenson v.Houlditch,2Yern. Vern. 1/8. 491 ; Woodcraft v. Kinaston, (q) There are cases men- 2 Atk. 317 ; Pierce v. Thomas, tioned in the books apparently 1 Jac. R. 54 ; Edwards v. to the contrary ; but they seem Bowen, 2 Sim. & Stu. 514. not to have been cases of bills (*) 1 Vern. 442. praying merely the writ of cer- 62 FRAME AND END OF THE [CHAP. I. tiahl t^Smony?" !• A bill to perpetuate the testimony of witnesses ' must state the matter touching which the plaintiff is desirous of giving evidence, and must show that he has some interest in the subject (t), and pray leave to examine witnesses touching the matter so stated, to the end that their testimony may be pre- served and perpetuated (u) . [52] The bill ought also to show that the facts to which the testimony of the witnesses proposed to be exa- mined is conceived to relate cannot be immediately investigated in a court of law, as in the case of a person in possession without disturbance (.v) ; or that before the facts can be investigated in a court of law the evidence of a material witness is likely to be lost, by his death, or departure from the realm (y) (1). (t) Mason Y.Goodburne,He]). by their examination ; and of Temp. Finch. 391 ; Smith v. course, therefore, is not brought Att. Gen. Mich. 1777, in Chan. to a hearing, Hall v. Hoddes- As to the nature of the interest don, 2 P. Wins. 102 ; 2 Ves. which is sufficient whereupon 497; Anon. Amh\. 237; Vaughan to institute such a suit, see v. Fitzgerald, 1 Sch. & Lefr. 6 Ves. 260, 261 ; Lord Dursley 316 ; Morrison v. Arnold, 19 v. Fitshardinge, 6 Ves. 251 ; Ves. 670. Allan v. Allan, 15 Ves. 130. (as) See Duke of Dorset v. (u) Rose v. Gannel, 3 Atk. Girdler, Prec. in Cha. 531 ; I 439 ; 1 Sch. & Lefr. 316. As Sim. & Stu. 88. relief is not prayed by a bill (y) According to the latter to perpetuate the testimony of part of this proposition the witnesses, Dalton v. Thomson, right of action may be either Dick. 97, the suit is terminated in the plaintiff or defendant in (1) Bills to perpetuate testimony seem divisible into two kinds ; namely, bills to perpetuate testimony, specifically so called, and bills to take testimony de bene esse. For some points as to these, not decided within the period comprised in the present editor's field of labour, the reader is referred to Story's Eq. PI. ss. 299—310. S. III.] SEVERAL KINDS OF BILLS. 63 To avoid objection to a bill framed on the latter £®? avitin 8U p- ground it seems proper to annex to it an affidavit of the circumstances by which the evidence intended to be perpetuated is in danger of being lost (z) ; a [53] practice adopted in other cases of bills which have a tendency to change the jurisdiction of a subject from a court of law to a court of equity, and which will be afterwards more particularly noticed. It £JJ" onal aver " seems another requisite to a bill of this kind that it should state that the defendant has, or that he pre- tends to have, or that he claims, an interest to con- test the title of the plaintiff in the subject of the proposed testimony (a). equity. With reference to the defendant, the time of bringing the action depending upon his will, the situation of the plaintiff would be similar to that in- timated in the former part of the proposition in the text, 1 Sim. & Stu. 89 ; and with respect to the plaintiff, it must be understood to relate to the case of his not being able at present to sustain an action, Cox v. Colley, Dick. 55 ; 1 Sim. & Stu. 114; for, if he should have such present right, his object could only be what is technically termed an exami- nation de bene esse, upon the ground of his having only one witness to a matter on which his claim depends, or, if he have more, on the ground of their being aged, or too ill or infirm to attend in a court of law, and that he is therefore likely to lose their testimony before the time of trial, 1 Sim. & Stu. 90, in which case it seems that it ought to be stated in the bill that the action was brought be- fore the same was filed. Angell v. Angell, 1 Sim. & Stu. 83. On the general subject see the cases cited, 1 Sim. & Stu. 93, note, and Teale v. Teale, 1 Sim. & Stu. 385. (z) Earl of Suffolk v. Green, 1 Atk. 450. An affidavit of like circumstances is also re- quisite, where the object is merely the examination of the witnesses tie bene esse. Angell v. Angell, 1 Sim. & Stu. 83 ; and see Philips v. Carew, 1 P. Wms. 117; Shirley v. Earl Ferrers, 3 P. Wms. 77. («) See Lord Dursleg v. Fitzhardinge, 6 Ves. 251. 64 FRAME AND END OF THE [ClIAP. I. i l nnis of disco, o. Every bill is in reality a bill of discovery ; but the species of bill usually distinguished by that title is a bill for discovery of facts resting in the know- ledge of the defendant, or of deeds or writings, or other things in his custody or power, and seeking no relief in consequence of the discovery (1), though it may pray the stay of proceedings at law till the dis- commoniyusld" 6 covery should be made. This bill is commonly used in aid of the jurisdiction of some other court, as to enable the plaintiff to prosecute or defend an action at law (//) (2), a proceeding before the king in coun- ts 5 Madd. 18. Bin of discovery /j\ ^ j^p which specifically pravs a discovery only, bi.it con- contaimng a V / i J r J « prayer for general c ] uc l es w ith the prayer for general relief, is a bill for relief. But relief. . liberty will be given to amend by striking out the prayer for general relief. Angel! v. Westcombe, G Sim. 30. ^ nS Uc 1 bi°t W ° rdS *•£ U1 tne P ra y er °f process, a bill prays that the defendant bin for relief in may abide such order and decree as the court may think proper the prayer of pro- • ... . . cess. to make, the bill is a bill for relief; and if, without such words, the bill would be a mere bill of discovery, it will be demurrable as a bill for relief. Ambury v. Jones, 1 Younge, 199 ; James v. Herriott, G Sim. 428. But the words "abide snch order therein," without the word "decree," will not have this effect ; because the word "order" must be considered as meaning such an order as is consistent with the general scope of the case made by the bill, as a mere bill of discovery. Baker x. Bramah, 7 Sim. 17. Bdiforacommis- ^ hill which, besides praying a discovery, pravs for a commis- sion to examine r J O J ' 1 witnesses and for s i on \_ examine witnesses abroad in aid of the plaintiff's defence an injunction. *■ to an action, and for an injunction to restrain proceedings in the mean time, is not a bill for relief. And therefore a demurrer in bar of relief to such a bill, without mentioning discovery, is bad. Mills v. Campbell, 2 Y. & C. Eq. Ex. 389^ to rebut evident (2) A defendant at law may file a bill of discovery, whether action. P ° rt ° f a " tnc object of it is to sustain a defence to an action, or rebut the S. III.] SEVERAL KINDS OF BILLS. 65 cil (c), or any other legal proceeding of a nature merely civil (d) before a jurisdiction which cannot compel a discovery on oath (e j ) ; except that the court has in some instances refused to give this aid to the jurisdiction of inferior courts (/) (1). Any jJSLSUT 1 " , against a plaintifl person in possession ol an estate, as tenant or other- in ejectment. wise, may file a bill against a stranger, bringing an L^ 4 . 1 ejectment, to discover the title under which the ejectment may be brought (g), though the plaintiff may not claim any title beyond that of mere tenant or occupant (2). A bill of this nature must state Contents thereof - 0) 1 Ves. 205. Ves. 451. (d) 2 Ves. 398. (/) 1 Ves. 205. (e) Dunn v. Coates, 1 Atk. (ff) 1 Ves. 249. 288 ; 1 Ves. 205 ; Anon. 2 evidence in support of the action. Glascott v. The Governor and Company of the Copper Miners of England, 11 Sim. 305. (1) It lias never been decided that a discovery will be enforced Discovery in aid v ' _ •> of proceedings in by the court of chancery in aid of the defence to a suit in a foreign a foreign court. court. But, at all events, it will not be enforced where the bill does not state that the plaintiff cannot have a discovery in the foreign court. Bent v. Young, 9 Sim. 180. (2) A bill of discovery in aid of a defence to an action cannot bui of discovery i , • i • i . , ■. against a person be sustained against a person who is not a party to the record at not n party to the law, although the plaintiff at law is only the agent of such person, action at in". and has brought the action on his behalf. And hence, where an action is brought by the agent of a foreign sovereign on bills of exchange, the acceptors thereof cannot make the sovereign a party to a bill of discovery in aid of their defence to such action. The Queen of Portugal v. Glyn, 7 CI. & Fin. 466. And upon the same principle where an action is brought against underwriters on a policy of insurance, they cannot make a person not a party to the record at law a party to a bill of discovery against the plaintiff at law ; though they allege that the policy was effected by the plaintiff at law as agent for such other person. Such a practice might be made an engine for the oppression of 66 FRAME AND END OF THE [ChAP. I. the matter touching which a discovery is sought, the interest of the plaintiff and defendant in the sub- ject, and the right of the first to require the dis- covery from the other (A). of 'documents ery ^ D ^ seeking a discovery of deeds or writings Cnded on t e hem. sometimes prays relief, founded on the deeds or writings of which the discovery is sought* If the relief so prayed be such as might be obtained at law, if the deeds or writings were in the custody of the plaintiff, he must annex to his bill an affidavit that they are not in his custody or power, and that he knows not where they are, unless they are in the hands of the defendant (*) ; but a bill for a discovery merely, or which only prays the delivery of deeds or writings, or equitable relief grounded upon them, does not require such an affidavit (k) (1). SK FawlT If the title to the possession of the deeds and writings of which the plaintiff prays possession de- pends on the validity of his title to the property to (h) Cardale v. Watkins, 5 (k) Godfrey v. Turner, 1 Madd. 18; and see Moodaly Vera. 247; Whithurchv. Gold- v. Moreton, Dick. 052 ; S. C, iny, 2 P. Wms. 541 ; 1 Ves. 1 Bro. C. C. 468. 344 ; 3 Atk. 132. But see (?) 1 Ves. 344 ; Hook v. Aston v. Lord Exettr, 6 Ves. Barman, 1 Sim. & Stu. 227. 288. persons alleged to be interested, but in reality not interested in the action ; and where such persons are also out of the juris- diction, it might also be made a means of delaying and defeating the plaintiff at law. Kerr v. Reiv, 9 Law J. (N.S), 148, L. C. (1) The reason of this distinction is, that in the first-men- tioned case where an affidavit is required, the plaintiff seeks to change the tribunal, by substituting the proceedings of a court of equity for the less tedious and less expensive procedure of a court of law. S. III. J SEVERAL KINDS OF BILLS. 67 which they relate, and he is not in possession of that property, and the evidence of his title to it is in his own power, or does not depend on the production of the deeds or writings of which he prays the delivery, [55] he must establish his title to the property at law before he can come into a court of equity for delivery of the deeds or writings (/). II. Bills not original are either an addition to or "^J" 8 not ori - . • n • ' i i Ml l j.1 A When an amend- a continuance oi an original bill, or both. An lm- ment u not per- muted, and there perfection in the frame of a bill may generally be ^^nft kTnd remedied by amendment ; but the imperfection may remain undiscovered whilst the proceedings are in such a state that an amendment can be permitted according to the practice of the court. This is par- ticularly the case where, after the court has decided upon the suit as framed, it appears necessary to bring some other matter before the court to obtain the full effect of the decision ; or, before a decision has been obtained, but after the parties are at issue upon the points in the original bill, and witnesses have been examined (in which case the practice of the court will not generally permit an amendment of the ori- ginal bill) (m) , some other point appears necessary to (/) See Jones v. Jones, 3 Wellbeloved v. Jones, 1 Sim. & Meriv. 161 ; 1 Madd. R. 193; Stu. 40 ; or to correct a mere Crow v. Tyrrell, 3 Madd. 1 79 ; clerical error, Aft. Gen. v. New- Field v. Beaumont, 1 Swanst. combe, 14 Ves. 1, will be al- 204. lowed at the hearing of the (tn) See Chap. 4. An amend- cause. In the case of an in- ment for the purpose of add ing parties, Anon. 2 Atk. 15 3 Atk. Ill, 371, and Palk v Lord Clinton, 12 Ves. 48 Daws v. Benn, 1 Jac. & W. 5 1 3 ; fant complainant, this liberty it seems would be granted without restriction, if for his benefit, Pritchard v. Quinchant, Ambl. 14"; and even in ordinary cases f2 68 FRAME AND END OF THE [CHAP. I. [56] be made, or some additional discovery is found re- quisite (n). And though a suit is perfect in its in- stitution, it may by some event subsequent to the filing of the original bill become defective, so that no proceeding can be had, either as to the whole, or as to some part, with effect ; or it may become abated, so that there can be no proceeding at all, either as to the whole, or as to part of the bill. The first is the case when, although the parties to the suit may remain before the court, some event sub- sequent to the institution of the suit has either made such a change in the interests of those parties, or given to some other person such an interest in the matters in litigation that the proceedings, as they stand, cannot have their full effect. The other is the case when, by some subsequent event, there is no person before the court by whom, or against whom, the suit, in the whole or in part, can be pro- secuted. It is not very accurately ascertained in the books great indulgence has in this re- not in a condition to have made spect been shown. See Filkin it earlier. See Longman v. Cal- v. Hill, 4Bro.P.C.640; Toml. liford, 3 Anstr. 807; Forrest, Ed. ; PaJk v. Lord Clinton, 12 Exch. It. 13 ; Lord Kilcourcxj Ves.48; Woollands\.Crowcher, v. Ley, 4 Madd. 212 ; Bean of 12Ves. 17 4; Hamilton^ .Hough- Christchurch v. Simonds, 2 ton, 2 Bligh, P. C. 169. And Meriv.4G7; Wright v. Howard, with regard to the practice be- 6" Madd. 10G ; M'Neill v. Ca- fore the hearing, it may be ob- hill, 2 Bligh, P. C. 228. See served, that after the cause is Barnett v. Noble, 1 Jac. & W. at issue this court will not give 227. the plaintiff leave to amend, (n) See Jones v. Jones, 3 unless he shows not only the Atk. 110; Goodwin v. Goodwin, materiality of the proposed al- 3 Atk. 370. teration, but also that he was S. III.] SEVERAL KINDS OF BILLS. 69 of practice, or in the reports, in what cases a suit becomes defective without being absolutely abated ; [57] and in what cases it abates as well as becomes de- fective. But upon the whole it may be collected (o), where proceed- J ings become de- that if by any means any interest of a party to the 6lT«7ta£St! suit in the matter in litigation becomes vested in another, the proceedings are rendered defective in proportion as that interest affects the suit ; so that al- though the parties to the suit may remain as before, vet the end of the suit cannot be obtained (p). And where they be- J v * come abated by if such a change of interest is occasioned by, or is rtageofthe r pS"" the consequence of, the death of a party whose interest is not determined by his death, or the mar- riage of a female plaintiff, the proceedings become likewise abated or discontinued, either in part or in the whole. For as far as the interest of a party dying extends, there is no longer any person before the court by whom or against whom the suit can be prosecuted ; and a married woman is incapable by herself of prosecuting a suit. As the interest of a plaintiff generally extends to the whole suit, there- fore, in general, upon the death of a plaintiff, or marriage of a female plaintiff, all proceedings become abated (a). Upon the death of a defendant, like- or by the death of a defendant. wise, all proceedings abate as to that defendant. rgg-i (o) It is impossible to give grounds of the decisions war- authorities for every thing as- rant the conclusions here serted upon this head. The drawn. hooks, in words, almost as fre- {p) As an example, see Mole quently contradict as support v. Smith, 1 Jac. & W. 665. these assertions. But it is con- (q) 1 Eq. Ca. Ab. I, margin ; ceived, that from an attentive Dick. 8 ; Adamson v. Hull, 1 perusal of the cases it will be Sim. & Stu. 2A !). found, that, in general, the terest ( or where it sur- 70 FRAME AND END OF THE [CHAP. I. ^ot h ab e ate h ^ y d ° But u P on the marriage of a female defendant the proceedings do not abate (r) , though her husband ought to be named in the subsequent proceedings (#) . 1 wl Jde e termine8; If the interest of a party dying so determines that it can no longer affect the suit, and no person be- comes entitled thereupon to the same interest, which happens in the case of a tenant for life, or a person having a temporary or contingent interest, or an interest defeasible upon a contingency, the suit does not so abate as to require any proceeding to warrant the prosecution of the suit against the remaining parties ; but if the party dying be the only plaintiff, or only defendant, there may be necessarily an end caIe S of a th" death of the suit, no subject of litigation remaining. If of a co-trustee or , , , . n . . co-executor, or of the whole interest of a party dying survives to the husband of a x J J ° o e r™fV™ons iff ' another party, so that no claim can be made by or themselves and against the representatives of the party dying, as, if [59] a bill is filed by or against trustees or executors, and one dies not having possessed any of the property in (r) 4 Vin. Ab. 147 ; PI. 20 ; notwithstanding, proceeded in a 1 Vern. 318. suit as a feme sole, the mere (s) 1 Ves. 182. The reason want of a bill of revivor is not of the difference between the error for which a decree can be cases of a female plaintiff and reversed upon a bill of review defendant seems to be, that a brought by the defendant, Lady plaintiff seeking to obtain a Cramborne v. Dalmahoy, 1 right, the defendant may be in- Chan. Rep. 231 ; Nels. Rep. 86, jured by answering to one who '* And at law, if a woman sues is not entitled to sue for it; but or be sued as sole, and judgment a defendant merely justifying a is against her as such, though possession, the plaintiff cannot she was covert, she shall be be injured by a decree against estopped, and the sheriff shall the person holding that posses- take advantage of the estoppel." sion. And it has been deter- 1 Salk. 310; 1 Rol. Ab. 869, mined, that where a female 1. 50. plaintiff has married, and has, S. III.] SEVERAL KINDS OF BILLS. 71 question, or done any act relating to it which may be questioned in the suit, or by or against husband and wife, in right of the wife, and the husband dies under circumstances which admit of no demand by or against his representatives (0 , the proceedings do not abate. So if a surviving party can sustain the suit, as in the case (//) of several creditors, plaintiffs on behalf of themselves and other creditors (a) . For the persons remaining before the court, in all these cases, either have in them the whole interest in the matter in litigation, or at least are competent to call upon the court for its decree. If, indeed, upon the death of the husband of a female plaintiff suing in her right, the widow does not proceed in the cause, the bill is considered as abated, and she is not liable to the costs (y) . But if she thinks proper to proceed in the cause, she may do so without a bill of revivor ; for she alone has the whole interest, and the husband was a party in her right, and there- fore the whole advantage of the proceedings sur- vives to her ; so that if any judgment has been obtained, even for costs, she will be entitled to the benefit of it (z) . But if she takes any step in the [60] suit after her husband's death she makes herself liable to the costs from the beginning. If a female (t) Dr. Vary v. Juxon, 3 generally, may be mentioned. Chan. Rep. 40 ; 2 Freem. 133; See 1 1 Ves. 309 ; 1 Meriv. 364. Shelberry v. Briyys, 2 Vern. (x) 1 Meriv. 364 ; Burney 241) ; Anon. 3 Atkyns, 726. v. Morgan, 1 Sim. & Stu. 358 ; See Humphreys v. Hollis, 1 Jac. 1 Sim. & Stu. 494, 495. R. 73. (y) Treat, on Star Cham. p. (u) As another example of 3, sect. 3 ; Harl. MSS. the proposition in the text, the (z) Coppinx. , 2P.\Vms. case of a suit by joint-tenants 496. 72 FRAME AND END OF THE [CHAP. I. plaintiff marries pending a suit, and afterwards, before revivor, her husband dies (a) , a bill of revivor becomes unnecessary, her incapacity to prosecute the suit being removed; but the subsequent pro- ceedings ought to be in the name and with the description which she has acquired by the marriage. piakSfff taw in- A decree on a bill of interpleader may terminate dies. 63 the suit as to the plaintiff, though the litigation may continue between the defendants by interpleader (b) ; and in that case the cause may proceed without revivor (c) , notwithstanding the death of the plain- tiff^). There is the same want of accuracy in the books in ascertaining the manner in which the benefit of a suit may be obtained after it has become defective, or abated by an event subsequent to its institution, [61] as there is in the distinction between the cases where a suit becomes defective merely, and where it like- wise abates. It seems, however, clear, that if any (a) Godkin and others against the suit, 3 Swanst. 138; and Earl Ferrers, 1772. see Blackburn v. Jepson, 17 (b) See above, p. G0,note(/«). Ves. 4/3; S.C. 3 Swanst. 132. (c) Anon. 1 Vera. 351. But where a bill is filed by a (d) Where on a bill filed by a corporation sole, having a per- corporation aggregate, suing in sonal interest, the suit neces- their corporate capacity only, sarily abates by his death, so the names of the persons form- far as it affects his personal ing the same had been inadver- interest, and to that extent tently and unnecessarily in- may be revived by his personal serted, the members of the representative ; and if the suit corporation having had indivi- affect the rights of his succes- dually no interest in the subject, sor, such successor may obtain the death of a person so impro- the benefit of it in a different perly named in the bill was not form. considered as operating to abate S III.] SEVERAL KINDS OF BILLS. 73 property, or right in litigation, vested in a plaintiff, is transmitted to another, the person to whom it is transmitted is entitled to supply the defects of the suit, if become defective merely, and to continue it, or at least to have the benefit of it, if abated. It j& w £jS££j£i 1 l j.1 j. •!• _i_ ' \ a. \ f may be remedied. seems also clear, that if any property or right, before vested in a defendant, becomes transmitted to an- other, the plaintiff is entitled to render the suit perfect, if become defective, or to continue it, if abated, against the person to whom that property or right is transmitted. The means of supplying the defects of a suit, con- By what wiis. tinuing it if abated, or obtaining the benefit of it, are, 1, by supplemental bill; 2, by bill of revivor; 3, by bill of revivor and supplement ; 4, by original bill in the nature of a bill of revivor ; and, 5, by original bill in the nature of a supplemental bill . The distinc- tions between the cases in which a suit may be added to, or continued, or the benefit of it obtained, by these several means, seem to be the following : 1 . Where the imperfection of a suit arises from supplemental 1 bills. a defect in the original bill (1), or in some of the pro- (1) A defect in a suit for a specific performance of a pur- supplying a de- i • tit i i i mi • i feet in an original chase contract is not supplied by a supplemental bill m a subse- suit. quent suit, instituted before a decree in such subsequent suit, by a person claiming to be entitled to the purchase money. Cattell v. Corrall, 1 Hare, 21G. If a person files two bills in succession, in different characters, Bin inconsistent with a prior bill, against the same party, and the statements in the subsequent to which if ne- ■,.-,, . . •*! i • ■ ■• .-ii -i ,„ cessary it is to be bill arc inconsistent with the statements in the prior bill, they will considered sup- be both dismissed, although in the subsequent bill the principal P " inconsistent statement in the prior bill is alleged to be erroneous, and although there is a prayer that such subsequent bill may, if necessary, be considered supplemental to the prior suit. Blackburn v. Staniland, 9 Jur. 1027. 74 FRAME AND END OF THE [CHAP. 1. objects thereof, ceedings upon it, and not from any event subsequent and time for filing ox j x the same. x. Q ^ institution of the suit (1), it may be added to by a supplemental bill merely (c) (2). Thus a sup- [62] plemental bill may be filed to obtain a further dis- co very (/) from a defendant, to put a new matter in issue, or to add parties, where the proceedings are in such a state that the original bill cannot be (e) As a general rule, it has v. Baker, 2 Madd. R. 379. See been laid down, that events a very peculiar case on this which have happened subse- subject, in which the plaintiff, quently to the filing of the upon facts stated in the answer original bill ought not to be of the defendant, amended his made the subject of amendment, bill in order to meet the de- but that they should be brought fence which arose therefrom, before the court by a supple- Knight v. Matthews, 1 Madd. mental bill. Humphreys v. R. 56(i. Humphreys, 3 P. "Wms. 349 ; (/) Boeve v. Skipwith, 2 Brown v. Hiffden, 1 Atk. 291 ; Ch. Rep. 142; Usborne v. 3 Atk. 217 ; Pilkingtonv. Wig- Baker, 2 Madd. R. 379. nell, 2 Madd. R. 240 ; Usborne supplemental bill ( ] \ Where an original bill is filed for a dissolution of a part- in respect of mat- \ / o 1 ters occurred since nership on the ground of misconduct, other acts of misconduct the filing of the ' ° original bill. occurred subsequently to the filing of the original bill should be made the subject of a supplemental bill. And where new matter which occurred subsequently to the filing of the original bill is introduced by amendment, this objection may be taken by the defendant even in his answer, if he insists on the same advan- tage as if he had demurred or pleaded thereto. Wray v. Hutch- inson, 2 M. & K. 235. supplemental bill When one of the defendants to an original bill dies without against the per- . . , sonai represen- having appeared to it, the proper course is to bring his personal tative of a defen- ° . , „ A , * f . , . ° f... riant who died representative before the court by a supplemental bill : and it there appeared. are no new facts, except the fact of his death, to be brought before the court, and his death does not alter the interest of any of the other defendants, it is not necessary to make them parties to such bill. Collins v. Collins, 6 Jur. 49, V. C. E. supplemental (2) A supplemental bill cannot be filed to an original bill on which no subpoenas have been served. Stewart v. Nichols, Tandy n, 307. S. III.] SEVERAL KINDS OF BILLS. 75 amended for the purpose (g) (1). And this may be done as well after as before a decree ; and the bill may be either in aid of the decree, that it may be (; Greenwood v. Atkinson, 5 Sim. 419; Wood x. Wood, 4 Y. & C. Eq. Ex. 135, supra, p. 7^, note (1). 78 FRAME AND END OF THE [CHAP. I. where a partial gree the effect of an original bill. If any event change of interest takes place. happens which occasions any alteration in the in- terest of any of the parties to a suit, and does not deprive a plaintiff suing in his own right of his whole interest in the subject, as in the case of a mr h fs re de C ?iv P ed i of m0I *tgage or other partial change of interest ; or if a plaintiff suing in his own right is entirely deprived of his interest, but he is not the sole plaintiff, the defect arising from this event may be supplied by a bill of the same kind, which is likewise commonly termed, and is, in some respects, a supplemental bill merely, though in other respects, and especially against any new party, it has also in some degree the effect of an original bill. In all these cases the parties to the suit are able to proceed in it to a cer- [64] tain extent, though from the defect arising from the event subsequent to the filing of the original bill the proceedings are not sufficient to attain their full object. where the in- If the interest of a plaintiff suing in auter droit terest of a plaintiff firo?t B ( ietermTnes. entirely determines by death or otherwise, and some other person thereupon becomes entitled to the same property under the same title, as in the case of new assignees under a commission of bankrupt, upon the death or removal of former assignees (/?), or in the case of an executor or administrator, upon the deter- mination of an administration tt#?7//?te minori cetate(q), or pendente lite, the suit may be likewise added to and continued by supplemental bill (r) . For in these (p) Anon. 1 Atk. 88 ; S. C, in Ch. 1/4 ; Cary's Rep. 22 ; 1 Atk. .571 ; Brown v. Martin, Stubbs v. Leigh, 1 Cox, R. 133. 3 Atk. 218. (»•) In the case of an adminis- (q) SeeJonesw Basset, Prec. tration determined by death, a S. III.] SEVERAL KINDS OF BILLS. 79 cases there is no change of interest which can affect the questions between the parties, but only a change of the person in whose name the suit must be pro- secuted ; and if there has been no decree, the suit may proceed, after the supplemental bill has been filed, in the same manner as if the original plaintiff had continued such, except that the defendants must answer the supplemental bill, and either admit or put in issue the title of the new plaintiff. But if a decree has been obtained before the event on which such a supplemental bill becomes necessary, though the decree be only a decree nisi, there must be a decree on the supplemental bill, declaring that the L D ^J plaintiff in that bill is entitled to stand in the place of the plaintiff in the original bill, and to have the benefit of the proceedings upon it, and to prosecute the decree, and take the steps necessary to render it effectual (s). If a sole plaintiff suing in his own right is deprived ^tatfff^&f in of his whole interest in the matters in question by depdve/ofhis 8 , . ' . „ . . whole interest, as an event subsequent to the institution of a suit, as m I" \ he case °f a 1 bankrupt or in- the case of a bankrupt or insolvent debtor, whose solvent debtor ' whole property is transferred to assignees, or in case such a plaintiff assigns his whole interest to another, the plaintiff being no longer able to prosecute for want of interest (/), and his assignees claiming by a bill of revivor by a subsequent the bankruptcy of a sole plain- administrator has been admit- tiff is, or ought to be considered ted. Owen v. Curzon, 2 Vein. an abatement of a suit, some 237 ; Ilugyins v. York Build- difference of opinion has pre- Comp. 2 Eq. Ca. Ab. 3. vailed. See Sellers v. Dawson, (s) Brown v. Martin, 3 Atk. rep. 1 Atk., Sand. Ed. 2G3 ; 218. note, 4 Madd. 1/1, and the (/) Upon the question whether cases of Randall v. Mum/ord, 80 FRAME AND END OF THE [CHAP. T. title which may be litigated, the benefit of the pro- ceedings cannot be obtained by a supplemental bill, but must be sought by an original bill (u) in the nature of a supplemental bill, which will be the subject of discussion in a subsequent page. If a commission of bankrupt issues against any [""] party to a suit, or he is discharged as an insolvent Where a bill is aied to bring as- debtor , his interest in the subject is, unless he is a signees of a bank- ' «J ' the courJ e ore mere trustee, generally transferred to his assignees (x); and to bring them before the court a supplemental bill is necessary, to which the bankrupt or insolvent debtor is not usually required to be a party, although a bankrupt may dispute the validity of the commis- w here a bankrupt sion issued against him (?/). But, if plaintiff, a bank- plaintin'may pro- ° a L 18 Ves. 42-1, and Porter \. Cox, 5 Madd. 80, in which revivor seems to have been thought necessary. But as it cannot be stated a priori, that there will not be any surplus of the bank- rupt's estate after satisfaction of the creditors, who may prove under the commission, it seems impossible to insist, even where a plaintiff suing in his own right becomes a bankrupt, that, as a general rule, the suit abates. And the truth of the proposition will be more appa- rent from what is further stated in the next page of the text. (m) See Harrison v. Ridley, Com. Rep. 589. 0) 9 Ves. 86 ; 1 Ves. & B. 54/ ; and see, as to the excep- tions, Copeman v. Gallant, 1 P. Wms.314; 2P.Wms.318; Ex parte Ellis, 1 Atk. 101 ; 1 Atk. 159, 234; 6 Ves. 496; Joy v. Campbell, 1 Sch. & Lefr. 328 ; Ex parte Martin, 19 Ves. 491 ; S. C. 2 Rose, B. C. 331 ; Ex parte Gillett, 3 Madd. 28. (y) The commission, how- ever, cannot be actually im- peached by him in the suit : his proper mode of disputing its validity is by an action at law, or by a petition to supersede the same. See Hammond v. Attwood, 3 Madd. 158; and see Bryant v. Withers,^ Maule & Selw. 123; 15 Ves.468 ; j£* parte M'Gennis, 18 Ves. 289; S. C, 1 Rose, B.C. 60 ; Ex parte Bryant, 2 Rose, B.C. 1 ; Ex parte Northam, 2 Ves. & B. 124 ;S. C, 2 Rose, B.C. 140; S. III.] SEVERAL KINDS OF BILLS. 81 nipt may proceed himself in the suit, if he disputes ^ d 8 {j i i t raself iM the validity of the commission, or a bankrupt or in- solvent may proceed if the suit is necessary for his protection (z), or if his assignees do not think fit to prosecute the suit, and he conceives that it is for his advantage to prosecute it (a) . Under those circum- W] [67] ihen it is, arid stances, however, he must bring the assignees before SaJ» jteua i ji i jii-n i /-ii-i to bring his as- tne court by supplemental bin, as any benefit which si g nees betor e »»»? may be derived from the suit must be subject to the demands of the assignees {])), unless he seeks his per- sonal protection only against a demand which cannot be proved, or which the person making the demand Ex parte Price, 3 Madd. 228 ; Ex parte Ranken, 3 Madd. 371 ; Ex parte Bass, 4 Madd. 2/0 ; Bayley v. Vincent, 5 Madd. 48 ; Ex parte Gale, 1 Glyn & J. 43. 0) Anon. 1 Atk. 263 ; 1 Madd. R. 425. And this seems to be another reason, why it cannot be a general rule that the bankruptcy of the plaintiff causes an abatement, even where he sues in his own right. (a) Lowndes v. Taylor, 1 Madd. R. 423 ; S. C, 2 Rose, B. C. 365, 432. If an uncer- tificated bankrupt should be desirous that a suit in respect of the property should be com- menced or prosecuted, and his assignees should refuse to adopt that course, it seems, that to attain his object, he must peti- tion for leave to use their names for the purpose of the proceed- ing, he indemnifying them, 5 Ves. 587, 590 ; Benjield v. Solomons, 9 Ves. 77 ; 3 Madd. 158. (b) Although, it seems, the bankruptcy of a plaintiff, suing even in his own right does not, at least as a general rule, abate the suit, it unquestionably ren- ders it defective, 18 Yes. 427; and this court upon a special application will dismiss the bill, (but, as it seems, without costs,) unless the plaintiff make his assignees, or upon notice they make themselves parties thereto by supplemental bill within a limited time, Williams v. Kinder, 4 Ves. 387 ; Randall v. Mumford, 18 Ves. 424 Wheeler v. Malins, 4 Madd 171; Porter v. Cox, 5 Madd 80; S.C., 1 Buck,B. C. 469 Sharp v. Hullett, 2 Sim. & Stu 496. G 82 FRAME AND END OF THE [CHAP. I. title not derived from the former party [68] may not think fit to prove, under the commission issued against the bankrupt, or from which the in- solvent debtor may not be discharged (c). where the whole And if by any event the whole interest of a de- interest of a de- J J mhJdHldvltlldfendant is entirely determined, and the same interest in another by a , , is become vested in another by a title not derived from the former party, as in the case of succession to a bishopric or benefice, or of the determination of an estate-tail, and the vesting of a subsequent re- mainder in possession, the benefit of the suit against the person becoming entitled by the event described must also be obtained by original bill in the nature of a supplemental bill : though if the defendant whose interest has thus determined is not the sole defendant, the new bill is supplemental as to the rest of the suit, and is so termed and considered. But if the interest of a defendant is not determined, and only becomes vested in another by an event subsequent to the institution of a suit, as in the case of alienation by deed or devise, or by bankruptcy or insolvency, the defect in the suit may be supplied by supplemental bill, whether the suit is become defective merely, or abated as well as become de- fective id) (1). For in these cases the new party Where it is not determined, but only vested in another. (e) See p. 81, note (a). (d) See Rutherford x .Miller, 2 Anstr. 458 ; Russell v. Sharp, 1 Yes. & B. 500 ; Whitcombe v. Minchin, 5 Madd. 91 ; Foster v. Deacon, 6 Madd. 59 , Tur- Supplemental bill by an assignee of a defendant. (1) An assignee of an insolvent defendant should not bring him- self before the court by supplemental bill, until he has applied to the plaintiff to file a supplemental bill for the purpose of bringing him (the assignee) before the court, and the plaintiff has declined or neglected to do so. Phillipjjs v. Clark, 7 Sim. 231. S. III.] SEVERAL KINDS OF BILLS. 83 comes before the court exactly in the same plight and condition as the former party, is bound by his acts, and may be subject to all the costs of the pro- ceedings from the beginning of the suit (e). In all these cases, if the suit has become abated ^Mne n smt e has as well as defective, the bill is commonly termed a w e n as defective. supplemental bill in the nature of a bill of revivor, l.69] as it has the effect of a bill of revivor in continuing the suit. 2. Wherever a suit abates by death, and the in-^ llsofre_ terest of the person whose death has caused the abated death, and the interest of abatement is transmitted to that representative which p^^hls heir, ,i i • , • l • j i executor, or ad - tne law gives or ascertains, as an heir at law, exe- ministrator. cutor or administrator, so that the title cannot be disputed, at least in the court of chancery, but the person in whom the title is vested is alone to be as- certained, the suit may be continued by bill of re- vivor merely (1). If a suit abates by marriage of a abates 6 by mm-- 1 ner v. Robinson, 1 Sim. & Stu. fords a ground, besides the rea- 3. In the cases of Monteith sons already intimated in rela- v. Taylor, 9 Ves. 615, and tion to the plaintiff becoming Rhode v. Spear, A Madd. 51, bankrupt, so far as they apply, a motion on the part of the de- for presuming that the bank- fendant, after his bankruptcy, ruptcy of the defendant does that the bill might be dismissed, not abate the suit, but merely was allowed to be proper under renders it defective, the circumstances; which af- (e) 1 Atk. 89. (1) If a defendant, who has been served with a copy of the Revivor on the death of a defen- bill under the 23rd order of August, 1841, dies, without having dant without ii" i • ii ii,» i v having appeared. appeared, his personal representative must be brought before the court ; and for that purpose, an original bill, and not a bill of revivor, is necessary. Hardy v. Hull, 14 Sim. 21. And in other cases where a person named as a defendant dies before appearance, an original bill, and not a mere bill of g2 84 FRAME AND END OF THE [CHAP. I. nage, and no female plaintiff, and no act is done to affect the rights other act is done x ° oft£p t artfei 8ht ' , of the party but the marriage, no title can be dis- puted ; the person of the husband is the sole fact to be ascertained, and therefore the suit may be conti- nued in this case likewise by bill of revivor merely. Ancient practice When a suit became abated after a decree signed where a suit D decree signed and and enrolled (/), it was anciently the practice to re- enrolled. vive the decree by a subpoena in the nature of a scire facias (g) , upon the return of which the party to whom it was directed might show cause against the reviving of the decree (A) , by insisting that he was not bound by the decree (i) , or that for some other reason it ought not to be enforced against him, or that the person suing the subpoena was not entitled to the benefit of the decree. If the opinion of the court was in his favour he was dismissed with costs. If [70] it was against him (J), or if he did not oppose the reviving of the decree, interrogatories were exhibited for his examination touching any matter necessary to the procedings (k) . If he opposed the reviving of the decree on the ground of facts which were dis- puted, he was also to be examined upon interroga- tories, to which he might answer or plead ; and issue being joined, and witnesses examined, the matter was finally heard and determined by the court. But if there had been any proceeding subsequent to the (/) 1 Ves. 182, 184. (i) Brawn v. Vermuden, 1 (ff) 1 1 Ves. 311. Ca. in Cha. 2/2. (h) See 1 Vera. 426 ; Sayer (j) 1 Ca. in Cha. 273. v. Sayer, Dick. 42. {k) Anon. 2 Freem. 128. revivor, ought to he filed against his representative. Crowfoot v. Mander, 9 Sim. 396. S. III.] SEVERAL KINDS OF BILLS. 85 decree this process was ineffectual (/), as it revived the decree only, and the subsequent proceedings could not be revived but by bill ; and the enrolment of decrees being now much disused, it is become the Modem practice. practice to revive in all cases, indiscriminately, by bill(w). 3. If a suit becomes abated, and by any act be- 1]™™% sup- side the event by which the abatement happens the rights of the parties are affected, as by a settle- ment (w), or a devise (o) under certain circumstances, though a bill of revivor merely may continue the suit so as to enable the parties to prosecute it, yet to bring before the court the whole matter necessary for its consideration, the parties must, by supple- mental bill, added to and made part of the bill of revivor, show the settlement, or devise, or other act [71] by which their rights are affected. And, in the same manner, if any other event which occasions an abate- ment is accompanied or followed by any matter ne- cessary to be stated to the court, either to show the rights of the parties, or to obtain the full benefit of the suit, beyond what is merely necessary to show by or against whom the cause is to be revived, that matter must be set forth by way of supplemental bill, added to the bill of revivor (p) (1). (/) Croster v. JVister, 2 Cha. («) See Merrywether v. Rep. 67 ; Thorn v. Pitt, Sel. Mellish, 13 Ves. 161. Ca. in Cha. 54 ; S. C, 2 Eq. (o) See Rylands v. Latouche, Ca. Ab. 180. 2Bligh, P. C.566. (m) Soe Dunn v. Allen, 1 (p) See Russell v. Sharp, 1 Vera. 426 ; Pract. Reg. 90, Yes. & Bea. 500. Wy. Ed. (1) "If a person interested under a will files a bill for an ac- 86 FRAME AND END OF THE [CHAP. I. 4 Bins in the 4 jf the death of a party, whose interest is not nature of bills of 1 J ' revivor. /# ^ determined by his death, is attended with such a transmission of his interest that the title to it, as well as the person entitled, may be litigated in the court of chancery, as in the case of a devise of a real estate (q), the suit is not permitted to be con- tinued by a bill of revivor. An original bill, upon which the title may be litigated (r) , must be filed ; and this bill will have so far the effect of a bill of revivor, that if the title of the representative substi- tuted by the act of the deceased party is established, the same benefit may be had of the proceedings upon the former bill as if the suit had been continued by a bill of revivor (s) . [72] 5. If the interest of a plaintiff or defendant, suing ture of supjfe™ 1 ' or defending in his own right, wholly determines, and the same property becomes vested in another person . /2 not claiming under him, as in the case of an eccle- siastical person succeeding to a benefice, or a re- mainder-man in a settlement becoming entitled upon the death of a prior tenant under the same settle- ment (t), the suit cannot be continued by bill of (q) Backhouse v. Middleton, (s) Clare v. Wordell, 2 Vern. 1 Ca. in Cha. 173 ; S. C, 3 548 ; 1 Eq. Ca. Ab. 83; Min- Ch. Rep. 39, and 2 Freem. 132; shidl v. Lord Mohun, 2 Vern. Mosely, 44. 672 ; 6 Bro. P. C. 36, Toml. (r) 1 Eq. Ca. Ab. 2, pi. 2 & Ed. 7 ; Huet v. Lord Say and Sele, (t) 2 Eq. Ca. Ab. 3, in marg.; Sel. Ca. in Cba. 53. Osborne v. Usher, 6 Bro. P. C. count against tbe executors, not seeking to charge them for wilful default, and dies pending the suit, his personal representative cannot charge them by bill of revivor and supplement, if the acts complained of were known to the deceased plaintiff." Garrett v. Noble, 6 Sim. 504. S. III.] SEVERAL KINDS OF BILLS. 87 revivor, nor can its defects be supplied by a supple- mental bill. For though the successor in the first case, and the remainder-man in the second, have the same property which the predecessor, or prior tenant, enjoyed, yet they are not in many cases bound by his acts, nor have they in some cases precisely the same rights. But, in general, by an original bill in the nature of a supplemental bill (1) the benefit of the former proceedings may be obtained (w). If the party whose interest is thus determined was not the sole plaintiff or defendant, or if the property which occasions a bill of this nature affects only a part of the suit, the bill, as to the other parties and the rest of the suit, is, as has been before observed, supple- mental merely. — There seems to be this difference Distinction be. J tween the last between an original bill in the nature of a bill of re- ga r ° ds b ^"effect, vivor, and an original bill in the nature of a supple- mental bill. Upon the first the benefit of the former proceedings is absolutely obtained, so that the plead- ings in the first cause, and the depositions of wit- nesses, if any have been taken, may be used in the [73] same manner as if filed or taken in the second cause (x) ; and if any decree has been made in the first cause, the same decree shall be made in the second (y) . But in the other case a new defence may be made ; the pleadings and depositions (z) cannot be 20, Toml. Ed. ; 1 Bro. P. C. (y) Clare v. Wordell, 2 Vera. 205 ; Lloyd v. Johnes, 9 Yes. 548 ; Minshull v. Lord Mohun, 37. 2 Vera. 672 ; 1 Eq. Ca. Ab. (u) 9 Yes. 54, 55. 83; 1 Atk. 89. (x) See Houlditch v. Marquis (z) Earl of Peterborough v. of Donee/all, 1 Sim. & Stu. 491. Duchess of Norfolk, Prec. in (1) See Woods v. Woods, note (1) to p. 119. Effect of aliena- tion pendente lite. S8 FRAME AND END OF THE [CHAP. I. used in the same manner as if filed or taken in the same cause ; and the decree, if any has been obtained, is no otherwise of advantage than as it may be an in- ducement to the court to make a similar decree (a). The voluntary alienation of property pending a suit by any party to it, is not permitted to affect the rights of the other parties if the suit proceeds without disclosure of the fact, except as the alienation may disable the party from performing the decree of the court (b). Thus, if pending a suit by a mort- gagee to foreclose the equity of redemption, the mortgagor makes a second mortgage, or assigns the equity of redemption, an absolute decree of fore- closure against the mortgagor will bind the second mortgagee, or assignee of the equity of redemption, who can only have the benefit of a title so gained by filing a bill for that purpose (c) . But upon a bill by a mortgagor to redeem, if the mortgagee [74] assigns pendente lite, the assignee must be brought before the court by the mortgagor, who cannot otherwise have a re-conveyance of the mortgaged property (d). The bill necessary in the last case is merely supplementary ; but in the former, the bill must be an original bill in the nature of a cross-bill, to redeem the mortgaged property. If the party Chan. 212; see also Coke v. (b) 2 Ves. & B. 205, 206; Fountain, 1 Vera. 413, and City 4 Dow. P. C. 435. of London v. Perkins, 3 Bro. (c) 2 Atk. 175; 11 Ves. P. C. 602, Toml. Ed., as to 199. reading in one cause deposi- (d) 11 Ves. 199; and see sions taken in another. Wetherell v. Collins, 3 Madd. (a) See Lloyd v. Johies, 9 255. Ves. Jun. 37. S. III.] SEVERAL KINDS OF BILLS. 89 aliening be plaintiff in the suit, and the alienation does not extend to his whole interest, he may also bring the alienee before the court by a bill, which, though in the nature of an original bill against the alienee, will be supplemental against the parties to the original suit, and they will be necessary parties to the supplemental suit only so far as their inter- ests may be affected by the alienation (c) . Gene- rally, in cases of alienation pendente lite, the alienee is bound by the proceedings in the suit after the alienation, and before the alienee becomes a party to it (d) ; and depositions of witnesses taken after the alienation, before the alienee became a party to the suit, may be used by the other parties against the alienee as they might have been used against the party under whom he claims (e). Having considered generally the distinctions be- tween the several kinds of bills by which a suit [75] become defective or abated may be added to or con- tinued, or by which the benefit of the suit may be obtained, it remains in this place to consider more particularly the frame of the first three of those kinds. The other two will form part of the subject to be considered under the next head. (c) There is an instance, in (d) It may be observed, how- which the court, in a case of ever, that the alienee may by this kind, allowed an alienee of supplemental bill, in the nature a plaintiff to participate in cer- of an original bill, make him- tain interlocutory proceedings, self a party to the suit (1). without previously requiring a Foster v. Deacon, 6 Madd. 59 ; supplemental bill to be filed for and see Bin/cs v. Bin/cs, reported the purpose of making him a 2 Bligh, P. C. 593, note, party to the suit. Toosey v. (e) See Garth v. Ward, 2 Burchell, 1 Jac. R. 159. Atk. 174. (1) See note (1) to p. 82. 90 FRAME AND END OF THE [ChAP. I. rimmtdwEr ' • ^ supplemental bill must state the original hlgslhereoT ' 1 " bill(l), and the proceedings thereon; and if the supplemental bill is occasioned by an event subse- quent to the original bill, it must state that event, and the consequent alteration with respect to the parties ; and, in general, the supplemental bill must pray, that all the defendants may appear and answer to the charges it contains. For if the supplemental bill is not for a discovery merely, the cause must be heard upon the supplemental bill at the same time that it is heard upon the original bill, if it has not been before heard ; and if the cause has been before heard, it must be further heard upon the supple- mental matter (f). If indeed the alteration or acquisition of interest happens to a defendant, or a person necessary to be made a defendant, the sup- plemental bill may be exhibited by the plaintiff in the original suit against such person alone, and may pray a decree upon the particular supplemental matter alleged against that person only (g) ; un- less, which is frequently the case, the interests of (/) 2 Madd. It. 60. ((/) See Brown v. Martin, 3 Atk. 21/. Contents of a (1) The 49th order of Aug. 1841, declares that "it shall ' not be necessary in any supplemental bill to set forth any of the statements in the pleadings in the original suit, unless the special circumstances of the case may require it." "All that is required" in a supplemental bill "is, that the plaintiff should state so much of the case as shows that there was an equity." And in a case where he states that an injunc- tion has been granted against the interference of certain directors with the funds of a company, he states sufficient to show that there was an equity for restraining a director subsequently elected from joining in interfering with those funds. Fibers v. Lord Audley, 9 Sim. 72. S. III.] SEVERAL KINDS OF BILLS. 91 the other defendants may he affected hy that decree. Where a supplemental bill is merely for the pur- [' "J pose of bringing formal parties before the court as defendants, the parties defendants to the original bill need not in general be made parties to the sup- plemental (//) (1). 2. A bill of revivor must state the original bill (2), i£gS I SJt (A) See Brown v. Martin, 3 Atk. 217. (1) Where a bill is filed by one of two next of kin against the Parties to a sup- executors of a testator, and in consequence of an objection taken p emen u by the answer of the executors for want of parties, a supplemental bill is afterwards filed to bring another next of kin before the court, the executors must be parties to the supplemental bill, in order that they may have an opportunity of stating upon the pleadings any case they may have as against such other next of kin. Jones v. Howells, and Jones v. Godsall, 2 Hare, 342. Where one of several co-plaintiffs in an original suit mortgages his interest and becomes insolvent, defendants in such original suit who are trustees for the plaintiffs are necessary parties to a supplemental bill filed by the other co-plaintiffs against the mort- gagee and provisional assignee ; for otherwise the accounting parties, the trustees, might not know till the hearing to whom they were to account. Feary v. Stephenson, 1 Beav. 42. In order to determine a question as to parties to a supple- mental bill depending on facts alleged in the original bill, the court is bound to look at the allegations in the original bill. Pinkus v. Peters, 5 Beav. 253. On this subject see also Greenwood v. Atkinson, note (1) to p. 75, supra, and Collins v. Collins, note (I) to p. 74, supra. (2) The 49th order of Aug. 1841, declares that "it shall contents of a bin not be necessary in any bill of revivor to set forth any of the statements in the pleadings in the original suit, unless the special circumstances of the case may require it." Prior to this order, it was necessary that a bill of revivor Necessity for against new parties should set forth so much of the original bill revive, as shows the plaintiff's title to revive : otherwise it was demurrable. PAeljjs v. Sprowle, 4 Sim. .318. And even now it is necessary for a plaintiff iu a bill of revivor 92 FRAME AND END OF THE [CHAP. I. proceedings thereon. and the several proceedings thereon, and the abate- ment ; it must show a title to revive (i) , and charge that the cause ought to be revived, and stand in the same condition with respect to the parties in the bill of revivor (1) as it was in with respect to the parties to the original bill at the time the abate- ment happened ; and it must pray that the suit may be revived accordingly. It may be likewise neces- sary to pray that the defendant may answer the bill of revivor, as in the case of a requisite admission of assets by the representative of a deceased party (k) . In this case, if the defendant does admit assets, the cause may proceed against him upon an order of revivor merely ; but if he does not make that ad- mission, the cause must be heard for the purpose of obtaining the necessary accounts of the estate of (t) Com. Rep. 590. (k) Frac. Reg. 90, Wy. Ed. to state enough to show his title to revive the original suit against the defendant to the bill of revivor, and the precise cha- racter in which the defendant is brought before the court. For the statements of the bill of revivor cannot be explained by im- porting into it the statements of the original bill : for if that were allowed, the defendant to the bill of revivor could not safely demur until he had taken a copy of the original bill. Griffiths v. Rickitts, 3 Hare, 484. (1) If a defendant dies, having appointed two executors, and only one of them proves, it is sufficient for tbe plaintiff to revive the suit against that executor. Strickland v. Strickland, 12 Sim. 463. Where the parties When a suit has abated by the death of a co-plaintiff, whose are necessary p"r- right devolves to his representatives, it can only be revived by a bill, »ivor.° a ' ° re * to which these representatives, the other plaintiffs, and all the de- fendants to the original bill are parties. Cave v. Cork, 12 Law J. (N. S.) 156, V. C. B. Kxecutor who tins not proved )iot a necessary party. S. III.] SEVERAL KINDS OF BILLS. 93 the deceased party to answer the demands made against it by the suit ; and the prayer of the bill, therefore, in such case usually is, not only that the suit may be revived, but also, that in case the de- fendant shall not admit assets to answer the pur- poses of the suit, those accounts may be taken, and so far the bill is in the nature of an original bill. If a defendant to an original bill dies before putting in an answer, or after an answer to which exceptions [77] have been taken, or after an amendment of the bill to which no answer has been given, the bill of re- vivor, though requiring in itself no answer, must pray that the person against whom it seeks to revive the suit may answer the original bill, or so much of it as the exceptions taken to the answer of the former defendant extend to, or the amendment remaining unanswered. Upon a bill of revivor the defendants must answer in eight days after appearance, and submit that the suit shall be revived, or show cause to the contrary ; and in default, unless the defendant has obtained an order for further time to answer, the suit may be re- vived without answer, by an order made upon motion as a matter of course (/) (1). The ground for this (0 See Harris v. Pollard, 3 P. Wms. 348. (1) By the 61st order of May, 1845, "the plaintiff in a bill of revivor, or of revivor and supplement, is entitled as of course, upon motion or petition, to the common order to revive, if a defendant, having appeared in person or by his own solicitor, does not within eight days after such appearance plead or demur to the whole bill, or to so much thereof as prays the revivor." And by the G2nd order, where an appearance has been entered for the defendant by the plaintiff, and the defendant does not [78] 94 FRAME AND END OF THE [CHAP. I. is an allegation that the time allowed the defendant to answer by the course of the court is expired, and that no answer is put in ; it is therefore presumed that the defendant can show no cause against reviv- ing the suit in the manner prayed by the bill (m) . An order to revive may also be obtained in like manner if the defendant puts in an answer submitting to the revivor, or even without that submission, if he shows no cause against the revivor. Though the suit is revived of course in default of the defend- ant's answer within eight days, he must yet put in an answer if the bill requires it; as, if the bill seeks an admission of assets, or calls for an answer to the original bill, the end of the order of revivor being only to put the suit and proceedings in the situation in which they stood at the time of the abatement, and to enable the plaintiff to proceed accordingly. And notwithstanding an order for revivor has been thus obtained, yet if the defendant conceives that the plaintiff is not entitled to revive the suit against him, he may take those steps which are necessary to prevent the further proceeding on the bill, and which will be noticed in treating of the different modes of (tn) The court, after abate- ceeding after abatement, 1 Ves. merit of a suit, has acted without 18G ; Roundell v. Currer, 6 revivor in some instances, wbere Ves. 250, except proceedings to the rights of the parties have compel revivor, or to prevent in- been fully ascertained by de- jury to the surviving parties, if cree, or by subsequent proceed- the persons entitled to revive ings ; but in general revivor is neglect to do so, necessary to warrant any pro- plead or demur within eight days afterwards, the court may make an order to revive, on motion, upon notice. S. III.] SEVERAL KINDS OF BILLS. 95 defence to bills of revivor ; and though these steps should not be taken, yet if the plaintiff does not show a title to revive he cannot finally have the benefit of the suit when the determination of the court is called for on the subject (?i). If a decree be obtained against an executor for payment of a debt of his testator, and costs, out of the assets, and the executor dies, and his represen- tative does not become the representative of the testator, the suit may be revived against the repre- sentative of the testator, and the assets of the tes- tator may be pursued in his hands, without reviving against the representative of the original defendant (o). After a cause is revived, if the person reviving finds the original bill to require amendment, and the pleadings are in such a state that amendment of the bill would be permitted if the deceased party were ("79] living, the bill may be amended notwithstanding the death of that party, and matters may be inserted which existed before the original bill was filed, and stated as if the deceased party had been living (p) . After a decree a defendant may file a bill of re- vivor, if the plaintiffs, or those standing in their right, neglect to do it ( questioning the tioned by bill of review : it is only where there is error on the tacc „ ie re propriety oi „ . , , . .,, i n xt • tt o r>i a former decree, of it that such a bill can be sustained." llanj v. lioman, b LI. & F. 321. matter j for error of form 102 FRAME AND END OF THE [CHAP. I. infant (/). A bill of this nature may be brought without the leave of the court previously given (m) (1). co^Vofnlw But if it is sought to reverse a decree signed and enrolled, upon discovery of some new matter (//), the leave of the court must be first obtained (0) ; and this will not be granted but upon allegation upon oath that the new matter (p) could not be produced, or used (q) by the party claiming the benefit of it at the time when the decree was made (r). If the court is satisfied that the new matter is relevant and material, and such as might probably have [85] occasioned a different determination (s) it will permit a bill of review to be filed (t) . Error in matter of form only, though apparent on the face of a decree, seems not to have been con- sidered as sufficient ground for reversing the de- (/) Prac. Reg. 225, Wy. Ed. ; Pract. Reg. 95, Wy. Ed. ; Ed. 17 Ves. 178. Ambl. 293. (m) 2 Atk. 534; Houghton (s) Lord Portsmouth v. Lord v. West, 2 Bro. P. C. 88, Effingham, 1 Ves. 430; Ben- Toml. Ed. net v. Lee, 2 Atk. 529 ; and (ri) 2 Ves. 576 ; 3 P. Wms. see Willan v. Willan, 16 Ves. 372; Nels. Rep. 52. 86. (0) Tothill, 42 ; 2 Atk, 534; (t) Lord Portsmouth v. Lord 17 Ves. 177. Effingham, 1 Ves. 430; Young {p) See O'Brien v. O'Connor, v. Keighly, 16 Ves. 348. But 2 Ball & B. 146. leave to file a bill of review is (q) See 1 Ves. 434 ; Pat- matter of discretion with the terson and Slaughter, Ambl. court. See Wilson v. Webb, 2 292, and 1 6 Ves. 350. Cox, R. 3. (r) 2 Bro. P. C. 71, Toml. Bin to re-deter- (1) A person who was not a party to a suit for the construction mine a question . ... _. . ... „ _ . . of construction or a will, may tile a bill, alter a decree enrolled m that suit, to have the construction of the will re-considered and re-determined, without leave of the court. Urquhart v. Urquhart, 13 Sim. 623. S. III.] SEVERAL KINDS OF BILLS. 103 cree (*) ; and matter of abatement has also been Z^™"* ot treated as not capable of being shown for error to reverse a decree (t) . It has been questioned whether the discovery of Wliether "J* a J r.ecessary that new matter not in issue in the cause in which a should™*"! 1, i /» l 'li deuce of matter decree has been made, could be the ground of a bill in issue - of review (u) ; and whether the new matter on which bills of review have been founded has not always been new matter to be used as evidence to prove matter in issue, in some manner, in the original bill (./). A case, indeed, can rarely happen in which new matter discovered would not be, in some degree, evidence of matter in issue in the original cause, if the pleadings were properly framed. Thus, if after a decree, founded on a revocable deed, a deed of revocation and new limitations were dis- covered; as it would be a necessary allegation of title under the revocable deed that it had not been [86] revoked, the question of revocation would have been in issue in the original cause, if the pleadings had been properly framed. So if after a decree founded on a supposed title of a person claiming as heir, a settlement or will were discovered which destroyed or qualified that title, it would be a necessary alle- gation of the title of the person claiming as heir, that the ancestor died seised in fee-simple, and intestate. But if a case were to arise in which the new matter discovered could not be evidence of any (s) Jones v. Kenrick, 5 Bro. (t) Slinysby v. Hale, 1 Ca. P. C. 244,Toml. Ed. ; but the in Cha. 122 ; S. C. 1 Eq. Ca. cause was compromised. Hart- Ab. 164. well v. Townsend, 2 Bro. P. C. (u) See 16 Ves. 354. 107, Toml. Ed. (») Ambl. 293. 104 FRAME AND END OF THE [ChAP. I. matter in issue in the original cause, and yet clearly demonstrated error in the decree, it should seem that it might be used as ground for a bill of review, if relief could not otherwise be obtained (#) (1). It is scarcely possible, however, that such a case should arise which might not be deemed in some degree a case of fraud, and the decree impeachable on that ground. In the case where the doubt before men- tioned appears to have been stated, the new matter discovered, and alleged as ground for a bill of review, [87] was a purchase for valuable consideration, without notice of the plaintiff's title : this could only be used as a defence ; and it seems to have been thought that although it might have been proper, under the circumstances, if the new matter had been discovered before the decree, to have allowed the defendant to amend his answer and put it in issue, yet it could not be made the subject of a bill of re- view ; because it created no title paramount to the title of the plaintiff, but merely a ground to induce a (as) This court refused its And see Ord v. Noel, 6 Madd. leave to file a bill of review, 127, and Bingham v. Dawson, where it would have been the 1 Jac. R. 243, which, although means of introducing an en- cases relating to supplemental tirely new case, of the matter bills in the nature of bills of of which the plaintiff was review, illustrate this principle, sufficiently well apprized to See also Ludlow v. Lord Ma- have been able, with the exer- cartney, 2 Bro. C. C. 67, Toml. tion of reasonable diligence, to Ed. ; LeNeve v.Norris, 2 Bro. have brought the same at first P. C. 73, Toml. Ed. ; M'Neill completely before the court. v. Cahill, 2 Bligh, P. C. 228. Young y.Keighly, 1G Ves. 348. (1) See Partridge v. Osborne, note (1) to page 108, infra. S. III.] SEVERAL KINDS OF BILLS. ] Of; court of equity not to interfere. And where a settle- ment had been made on a marriage in pursuance of articles, and the settlement following the words of the articles had made the husband tenant for life, with remainder to the heirs-male of his body, and the husband claiming as tenant in tail under the settlement had levied a fine, and devised to trustees, principally for the benefit of his son, and the trustees had obtained a decree to carry the trusts of the will into execution against the son, the son afterwards, on discovery of the articles, brought a bill to have the settlement rectified according to the articles, and a decree was made accordingly. In this case the new matter does not appear to have been evidence of matter in issue in the first cause, but created a title adverse to that on which the first decree was made {y). A bill of review upon new matter discovered has [88] been permitted even after an affirmance of the decree ^^SSSSeeai in parliament (z) ; but it may be doubted whether a nament. bill of review upon error in the decree itself can be brought after affirmance in parliament (a) . If upon jjjgjj hm oi a bill of review a decree has been reversed, another bill of review may be brought upon the decree of re- versal (b) . But when twenty years have elapsed Bi " °[ r f iew , v ' J J r must be brought (y) Roberts v. Kingsly, 1 See Young v. Keighly, 16 Ves. Ves. 238. If this case is accu- 348. rately reported, the hill seems (z) Barbon v. Searle, 1 Vera, to have heen filed without the 41G ; and see 16 Ves. 89. previous leave of the court; (a) 1 Vera. 418. and on the hearing an inquiry (b) 2 Chan. Pract. 633 ; and was directed as to the fact of see Neal v. Robinson, Dick, the discovery of the articles. 15; but see 1 Vera. 417. 106 FRAME AND END OF THE within twenty years. [Chap. I. from the time of pronouncing a decree, which has been signed and enrolled, a bill of review cannot be brought (c) ; and after a demurrer to a bill of review has been allowed, a new bill of review on the same Bringing it does ground cannot be brought (d). It is a rule of the not prevent the '-' o » ' former dec°ree the court, that the bringing a bill of review shall not prevent the execution of the decree impeached ; and if money is directed to be paid, it ought regularly to be paid before the bill of review is filed, though it may afterwards be ordered to be refunded (e) ( 1 ) . In a bill of this nature it is necessary to state (f) the former bill, and the proceedings thereon ; the decree, and the point in which the party exhibiting the bill of review conceives himself aggrieved by it (g) ; and the ground of law, or new matter dis- Vern. 135. Frame thereof. [89] (c) Sherrington v. Smith, 2 Bro. P. C. 62, Toml. Ed. ; Smythe v. Clay, 1 Bro. P. C. 453, Toml. Ed. ; Edwards v. Carroll, 2 Bro. P. C. 98, Toml. Ed. ; Lytton v. Lytton, 4 Bro. C. C. 441. (d) Dunny v. Filmore, 1 (e) Ord. in Cha. Ed. Bea. 3 ; 2 Brown P. C. 65, Toml. Ed. note. (/) 2 Prax. Aim. Cur. Can. 520 ; 2 Chan. Prac. 629. (g) 4 Vin. Ab. 414, PI. 5. Pre-requisite to (1) By the third and fourth of Lord Bacon's orders, " No bill of tiling a hill of v ' J review or a bill of review shall be admitted, or any other new bill to change matter that nature. J ° decreed, except the decree be first obeyed and performed. The true interpretation of these words is this — that before a party can file a bill of review or a bill of the nature of a bill of review, even by leave, he must perform so much of the decree as he is bound to perform at that time. But he may file a bill of review, or a bill of the nature of a bill of review at any time after leave is obtained, even before he has performed the decree, as regards those things which by the decree he was not bound to perform till a period subsequent to the time when such leave is obtained. Partridge v. Usborne, 5 Russ. 195. S. III.] SEVERAL KINDS OF BILLS. 107 covered, upon which he seeks to impeach it ; and if the decree is impeached on the latter ground, it seems necessary to state in the bill the leave obtained to file it (h), and the fact of the discovery (i). It has been doubted whether after leave given to file the bill, that fact is traversable ; but this doubt may be questioned if the defendant to the bill of review can offer evidence that the matter alleged in the bill of review was within the knowledge of the party who might have taken the benefit of it in the original cause (k) . The bill may pray simply that the de- cree may be reviewed, and reversed in the point complained of, if it has not been carried into execu- tion (/). If it has been carried into execution, the bill may also pray the further decree of the court, to put the party complaining of the former decree into the situation in which he would have been if that decree had not been executed. If the bill is brought to review the reversal of a former decree, it may pray that the original decree may stand (m). The bill may also, if the original suit has become abated, be at the same time a bill of revivor (n) . A supple- mental bill may likewise be added, if any event has [90] (A) See 1 Vern. 292 ; Boh. covery was traversable ; and Curs. Cane. 396, 397. not being admitted by the de- (i) H anbury against Stevens, fendant, ought to have been Trin. 1784, in Chancery. proved by the plaintiff to en- (k) In the above mentioned title him to proceed to the case of Hanbury and Stevens, hearing of the cause, which was upon a supplemental (/) 17 Ves. 177. bill in nature of a bill of review, (tn) 2 Chan. Prac. 634. the court seemed to be of opi- (n) 2 Prax. Aim. Cur. Cane, nion that the fact of the dis- 522. 108 FRAME AND END OF THE [CHAP. I. happened which requires it (0) ; and particularly if any person not a party to the original suit becomes interested in the subject, he must be made a party to the bill of review by way of supplement (/;) . bin p ln e the n nalure To render a bill of review necessary the decree ' sought to be impeached must have been signed and enrolled. If, therefore, this has not been done, a decree may be examined and reversed upon a species of supplemental bill, in the nature of a bill of review, where any new matter has been discovered since the decree (0) (1). As a decree not signed and enrolled (0) Price v. Keyte, 1 Vera. should have been discovered 135. after the time when it could (/>) Sands v. Thorowgood, have been introduced into the Hardr. 104. original cause. Ord v. Noel, (q) 2Atk. 40, 178; 3 Atk. 6 Madd. 127; and see Bar- 811 ; Gartside v. Isherwood, rington v. O'Brien, 2 Ball & Dick. 612; 17Ves. 177; or, B. 140. at the least, the new matter Supplemental bin 0) ^ plaintiff, or a defendant against whom a decree is made, in the nature of a ma y obtain leave to file a supplemental bill in the nature of a bill bill of review and * rr to bring forward f review, to bring forward matter discovered after such decree, new matter. ' ° _ ' although such matter is not capable of being used as evidence of anything previously put in issue, but constitutes an entirely new issue. (Partridge v. TJsborne, 5 Russ. 195 ; Barnes v. Offer, 5 Russ. 225, note.) Thus, where a person who is afterwards decreed to perform a contract for the purchase of a timber estate, applies to the auctioneer for, and obtains a written statement of the quantity of timber by a surveyor, before he bids for the estate ; and after being decreed to perform his contract, he dis- covers that the quantity of timber is much less than is repre- sented in such statement ; the court will give him leave to file a supplemental bill in the nature of a bill of review, and to apply to have the original cause set down to be reheard, and to come on at the same time, although his answer to the original bill does not raise any objection as to the quantity of timber. Par- S. III.] SEVERAL KINDS OF BILLS. 109 may be altered upon a re-hearing, without the as- sistance of a bill of review, if there is sufficient matter to reverse it appearing upon the former proceed- ings (r) (1) the investigation of the decree must be [91] (;■) The re-hearing, which is on which the re-hearing is thus far alluded to, not being prayed, 1 Sch. & Lefr. 398. sought in respect of any new And here it may not be impro- matter, is obtained upon certi- per to notice, that the court ficate of counsel, 18 Ves. 325, will not, without consent, 3 by a petition merely, which Swanst. 234, vary a decree after states the case as brought be- it has been passed and entered, fore the court when the decree except as to mere clerical was made, Wood v. Griffiths, errors, Lane v. Hobbs, 12 Ves. 1 Meriv. 35; and the grounds 458, Weston v. Hayyerston, tridge v. Usborne, 5 Russ. 195. In this case, the purchaser ad- duced evidence of the auctioneer and others to show that the auctioneer warranted the quantity of timber, and stated that the admeasurement exhibited by him to the purchaser agreed with another admeasurement by another eminent surveyor, although in reality the two materially differed. But the fact of the war- ranty was controverted by the evidence of a greater number of persons ; and neither that fact nor the other circumstance above mentioned were adverted to in the judgment of the lord chan- cellor, Lord Lyndhurst. (1) Where in a suit for the administration of a testator's personal ^^.fniriSnmfnncrii estate, part of which is undisposed of, the bill sets forth the will becansegrounded 1 r on new tacts. of the testator, made some years before his death, in which he is described as of a certain colony, where the effects of intestates are not distributed according to the English statute of distribu- tions ; but the bill prays that the property undisposed of may be distributed according to that statute ; and there is no allegation that the testator was domiciled in the colony, or that the law of England is not applicable to the distribution of his property, either in the bill, or in the answers, or in the master's report, or in the evidence, or at the hearing ; and the property is ordered to be distributed according to the statute ; but afterwards a pe- tition for a rehearing is 'presented, in which those facts are alleged as a ground for a re-hearing ; such petition will be dis- missed. Nevinson v. Stables, 4 Russ. 210. 110 FRAME AND END OF THE [CHAP. I. brought on by a petition of re-hearing (s) : and the office of the supplemental bill, in nature of a bill of review, is to supply the defect which occasioned the decree upon the former bill (t) . It is necessary to obtain the leave of the court to bring a supplemental bill of this nature (u) , and the same affidavit is re- quired for this purpose as is necessary to obtain leave to bring a bill of review on discovery of new matter (x) (1). The bill in its frame nearly resembles Coop. R. 134 ; Hmvker v. Buncombe, 2 Madd. R. 391 ; 3 Swanst. 234 ; Tomlinsw.Palk, 1 Russ. R. 475; or, matters of course, 7 Ves. 293 ; Pickard v. Mattheson, 7 Ves. 293 ; New- house v. Mitford, 12 Ves. 456, unless, upon a petition of re- hearing, or upon a bill of review, or bill in the nature of a bill of review, 4 Madd. 32 ; Grey v. Dickenson, 4 Madd. 464 ; Brackenbury v. Bracken- bury, 2 Jac. & W. 391 ; Willis v. Parkinson, 3 Swanst. 233 ; Brookfield v. Bradley, 2 Sim. & Stu. 64, according as the decree has or has not been signed and enrolled ; and as it is sought to have the case re-heard as originally brought before the court, or accom- panied with new matter. See Text. (s) Taylor v. Sharp, 3 P. Wms. 371 ; 2 Ves. 598 ; Gore v. Pur don, 1 Sch. & Lefr. 234 ; 2 Jac. & W. 393. It must be remarked that where there is new matter, a petition to re- hear the original cause must be presented, and be brought be- fore the court at the same time as the supplemental bill, in the nature of a bill of review, Moore v. Moore, Dick. 66; 17 Ves. 178. (t) Standish v. Radley, 2 Atk. 177. (u) Order, 17 Oct. 1741, Ord. in Cha. Ed. Bea. 366 ; 2 Atk. 139, note; 3 Atk. 811; 2 Ves. 597, 598; Bridge v. Johnson, 17 Dec. 1 737- (x) As to the general prin- ciples adopted by the court in relation to bills of this kind, see Ord v. Noel, 6 Madd. 127; Bingham v. Dawson, 1 Jac. R. 243. (1) Where a decree is made against executors, not charging them with what they might have received, but for their wilful de- fault, but afterwards a bill is filed which seeks so to charge them, S. III.] SEVERAL KINDS OF BILLS. Ill a bill of review, except that instead of praying that the former decree may be reviewed and reversed, it prays that the cause may be heard with respect to the new matter made the subject of the supplemental it is a supplemental bill in the nature of a bill of review, and must not be filed without the leave of the court. Hodson v. Ball, 11 Sim. 456; 1 Phil. 1/7. And where a vendor contracts to sell leasehold premises for the remainder of a term granted by a certain lessor, and the specific performance of the contract is decreed, the purchaser may not, without the leave of the court, file a supplemental bill, stating the fact that the premises called by the name by which they are designated in the contract partly consist of premises comprised in a lease granted by another lessor, and praying a declaration that the premises comprised in both leases are com- prised in the contract, and that the contract may be specifically performed accordingly. For where a supplemental bill is brought to supply a defect in the pleadings and decree in the original cause, and the decree upon it can only be obtained on a re- hearing of the decree in the original cause ; such bill is a supple- mental bill in the nature of a bill of review, which ought not to be filed without the leave of the court. Davis v. Black, 6 Beav. 393. Where a supplemental bill seeks a species of relief which may be inconsistent with the relief afforded by the decree in the original suit, though it be only in one respect, and that in regard to the transactions of a few days, the bill is irregular, if filed without leave of the court ; and the defendants are not precluded from insisting on the irregularity, by having answered the bill ; because, although the defendants should waive the objection aris- ing from the want of leave to file the bill, yet the court itself would be concerned to prevent inconsistent decrees from being made. Such an irregularity may, however, be corrected by a stay of the proceedings, without prejudice to the plaintiff's right to file a new bill, or to apply for leave of the court to file a bill of review. This point arose in a case where the plaintiffs would have been entitled, in the original suit, to interest on the amount due to the estate of a deceased partner whom they represented ; but by a sup- plemental bill they sought for a declaration that they were entitled, 1 12 FRAME AND END OF THE [ChAP. I. bill, at the same time that it is re-heard upon the [92] original bill, and that the plaintiff may have such relief as the nature of the case made by the supple- mental bill requires {y). 3. Hills in the o Ti? 1 1 i. ill nature of a bin o. 11 a decree is made against a person who had of review. t no interest at all in the matter in dispute, or had not such an interest as was sufficient to render the decree against him binding upon some person claiming the same or a similar interest (z) , relief may be obtained againt error in the decree by a bill in the nature of a bill of review (a). Thus, if a decree is made against a tenant for life only, a remainder-man in tail or in fee cannot defeat the proceedings against the tenant for life but by a bill showing the error in the decree, the incompetency in the tenant for life to sustain the suit, and the accruer of his own interest, and there- upon praying that the proceedings in the original cause may be reviewed, and for that purpose that the other party may appear to and answer this new bill, and the rights of the parties may be properly ascer- tained. A bill of this nature, as it does not seek to alter a decree made against the plaintiff himself, or against any person under whom he claims, may be filed without the leave of the court (b) . peach'rtJcTeetfor 4. If a decree has been obtained by fraud it may fraud. (y) See 17 Yes. 177, 178. («) See 17 Ves. 178. (z) Brown v. Vermuden, 1 (b) Osborne v. Usher, 6 Bro. Ca. in Cha. 272. P. C. 20, Toml. Ed. at their option, either to participate in the profits made by the defendant, the surviving partner, after the death of the deceased partner, or to be allowed interest upon the balance due to the deceased partner's estate. Toulmin v. Copland, 4 Hare, 41. S. III.] SEVERAL KINDS OF BILLS. ]|: be impeached by original bill (c) without the leave of the court (d) ; the fraud used in obtaining the decree [^3] being the principal point in issue, and necessary to be established by proof before the propriety of the decree can be investigated. And where a decree has been so obtained the court will restore the parties to their former situation, whatever their rights may be (e). Beside cases of direct fraud in obtaining a decree, it seems to have been considered, that where a decree has been made against a trustee, the cestui que trust not being before the court, and the trust not discovered, or against a person who has made some conveyance or encumbrance not discovered, or where a decree has been made in favour of or against an heir, when the ancestor has in fact disposed by will of the subject-matter of the suit, the conceal- ment of the trust, or subsequent conveyance, or en- cumbrance, or will, in these several cases, ought to be treated as a fraud (f). It has been also said (c) 1 P. Williams, 736; 74 ; 2 Sch. & Lefr. 5/4*. Loyd v. Mansell, 2 P. Wms. (d) 3 Atk. 811; 1 Ves. 120; 73 ; 3 P. Wms. Ill; Wichalse Ca. Temp. Talbot, 201. v. Short, 3 Bro. P. C. 558, (e) Birne v. Hartpole, 5 Bro. Toml. Ed.; and see Kennedy P. C. 197, Toml. Ed. ; and see v. Daly, 1 Sch. & Lefr. 355 ; Powell v. Martin, 1 Jac. & W. and Giffard v. Ilort, 1 Sch. 292. And it may be remarked, & Lefr. 38G. In 3 P. Wms. that where the enrolment of 111, it is said that a decree the decree by the one party in such case may be set is a fraud or surprise upon aside on petition ; but this the other, it will be vacated, was probably meant to ex- Stevens v. Guppy, 1 Turn. R. tend only to the case of a decree 1 78. not signed and enrolled, and (/) See Style v. Martin, 1 where the fact of fraud could Ca in Cha. 150 ; Earl of Car- wot be controverted. See Mus- lisle v. Goble, 3 Cha. Rep. 94. sel v. Morgan, 3 Bro. C. C. decrees. 114 FRAME AND END OF THE [CHAP. I. that where an improper decree has been made against an infant, without actual fraud, it ought to be im- [94] peached by original bill (g). When a decree has been made by consent, and the consent has been fraudulently obtained, the party grieved can only be relieved by original bill (/*). A bill to set aside a decree for fraud must state the decree, and the proceedings which led to it, with the circumstances of fraud on which it is impeached. The prayer must necessarily be varied according to the nature of the fraud used, and the extent of its ope- ration in obtaining an improper decision of the court. 5. biiis to sua- 5. The operation of a decree signed and enrolled pend or avoid * ° has been suspended on special circumstances, or avoided by matter subsequent to the decree, upon a new bill for that purpose. Thus, during the troubles after the death of Charles the First, upon a decree for a foreclosure in case of non-payment of principal, interest and costs, due on a mortgage, the mortgagor at the time of payment being forced to leave the king- dom to avoid the consequences of his engagements with the royal party, and having requested the mort- gagee to sell the estate to the best advantage and pay himself, which the mortgagee appeared to have ac- quiesced in ; the court, upon a new bill, enlarged the time for performance of the decree, upon the ground of the inevitable necessity which prevented the mort- gagor from complying with the strict terms of it, and also made a new decree on the ground of the matter subsequent to the former decree (z). O) 1 P. Wms. 737 ; 2 Ves. (/?) Ambl. 229. 232. (?) Cocker v. Bevis, 1 Ca. in S. Ill] SEVERAL KINDS OF BILLS. 115 6. Sometimes, from the neglect of parties, or some [95] other cause, it becomes impossible to carry a decree aJSl^ntowe- into execution without the further decree of the court (A-). This happens, generally, in cases where the parties having neglected to proceed upon the de- cree, their rights under it become so embarrassed by a variety of subsequent events, that it is necessary to have the decree of the court to settle and ascertain them. Sometimes such a bill is exhibited by a person who was not a party, nor claims under any party to the original decree, but claims in a similar interest, or is unable to obtain the determination of his own rights till the decree is carried into execution (/) . Or it may be brought by or against a person claiming as assignee of a party to the decree (m) . The court in these cases in general only enforces, and does not vary, the de- cree; but on circumstances it has sometimes considered Cha. 61. See also Y enables established principles, to give v. Foyle, 1 Ca. in Cha. 3 ; and relief ; and all cases determined Whorewood v. Whorewood, 1 soon after the restoration, upon Ca. in Cha. 250 ; Wakelin v. circumstances connected with Walthal, 2 Ca. in Cha. 8. The the prior disturbed state of the embarrassments occasioned, by country, ought to be considered the civil war in the reign of with much caution. Charles I., and the state of af- (k) 2 Chanc. Rep. 128; 2 fairs after his death, before the Vern. 409. restoration of Charles II. occa- (/) See peculiar case of Ry- sioned many extraordinary ap- lands x.Latouche, 2 Bligh, P.C. plications to the court of chan- 5G6. eery for relief, and perhaps in- (m) Oryanx. Gardiner, 1 Ca. duced the court to go far in ex- in Cha. 231 ; Lord Carteret v. tending relief; but there were Paschal, 3 P. Wins. 197; 5. C. many cases of extreme hard- on appeal, 2 Bro. P. C. 10, ship in which it was deemed Toml. Ed. ; Binks v. Binks, impossible, consistently with rep. 2 Bligh, P. C. 593, note. i2 11G FRAME AND END OF THE [ClIAP. I. [96] the directions, and varied them incase of a mistake («); and it has even on circumstances refused to enforce the decree (o) , though in other cases the court, and the House of Lords, upon an appeal, seem to have con- sidered that the law of the decree ought not to be examined on a bill to carry it into execution (p) . Such a bill may also be brought to carry into execution the judgment of an inferior court of equity (q) if the jurisdiction of that court is not equal to the purpose ; as in the case of a decree in Wales, which the de- fendant avoided by flying into England (r) : but in this case the court thought itself entitled to examine the (n) See, for example, Hatnil- tonx. Houghton, 2 Bligli, P.C. 164 ; and see Sel. Ca. in Cha. 13. (o) Att. Gen. v. Day, 1 Ves. 218; 1 Ves. 245 ; Johnson v. Northey, Prec. in Ch. 134; S. C. 2 Vern. 407. In the last case the lord keeper (1/00) seemed to think that a bill by creditors to carry into execution a decree in favour of their debtor had opened that decree. In the case of Sir John Worden v. Gerard, in Ch., 1/18, the in- terests of an infant party being affected by the decree, the court refused to carry it into execu- tion upon a bill for that pur- pose, and made a decree ac- cording to the rights of the parties. SeeLechmere v.Brasier, 2 Jac. & W. 287. But in Shep- herd v. Titley, 2 Atk. 348, on a bill to foreclose a mortgage, after a bill to redeem, on which a decree had been made, the bill of foreclosure insisting on an encumbrance not noticed in the former cause, the latter was on hearing ordered to stand over, that the question might be brought on by re-hearing of the former cause, or by bill of review. (p) 2 Ves. 232 ; Smythe v. Clay, 1 Bro. P. C. 453, Toml. Ed. ; see also Minshull v. Lord Mohun, 2 Vern. 672, and S. C. on appeal, 6 Bro. P. C. 32, Toml. Ed. (q) 1 Roll. Ab. 373. (;■) Morgan v. , 1 Atk. 408. The case referred to of a decree in Wales seems to have been a case of Halford v. Morgan. S. III.] SEVERAL KINDS OF BILLS. ] 1 7 justice of the decision, though affirmed in the House [97] of Lords (s) . A bill for this purpose is, generally, partly an original bill, and partly a bill in the nature of an original bill, though not strictly original (7) ; and sometimes it is likewise a bill of revivor, or a supple- mental bill, or both. The frame of the bill is varied accordingly. 7. It has been already mentioned (a), that when "• ° li ° ill . albiU ? J \ / J in the nature of the interest of a party dying is transmitted to another bllls ° in such a manner that the transmission may be litigated in this court, as in the case of a devise, the suit can- not be revived by or against the person to whom the interest is so transmitted ; but that such person, if he succeeds to the interest of a plaintiff, is entitled to the benefit of the former suit ; and if he succeeds to the interest of a defendant, the plaintiff is entitled to the benefit of the former suit against him ; and that this benefit is to be obtained by an original bill in nature of a bill of revivor. A bill for this purpose must state the original bill, the proceedings upon it, the abatement, and the manner in which the interest of the party dead has been transmitted ; and it must charge the validity of the transmission, and state the rights which have accrued by it. The bill is said to be original merely for want of that privity of title between the party to the former and the party to the latter bill, though claiming the same interest, as [98] would have permitted the continuance of the suit by (s) See Douglas, 6. upon an original bill. 1 Sim. (t) In the case of Pott v. & Stu. 206. Gallini, a decree in a former (u) See above, p. 86. suit was, in effect, extended 118 FRAME AND END OF THE [CHAP. I. a bill of revivor. Therefore, when the validity of the alleged transmission of interest is established, the party to the new bill shall be equally bound by or have advantage of the proceedings on the original bill, as if there had been such a privity between him and the party to the original bill claiming the same interest (x) ; and the suit is considered as pending from the filing of the original bill, so as to save the statute of limitations, to have the advantage of com- pelling the defendant to answer before an answer can be compelled to a cross-bill, and every other advan- tage which would have attended the institution of the suit by the original bill if it could have been continued by bill of revivor merely {y). 8. supplemental 8. It has been also mentioned (z), that if the in- bills in the nature , . ' , of original bills, terest of a plaintiff or defendant, suing or defending in his own right, wholly determines, and the same property becomes vested in another person not claim- ing under him, the suit cannot be continued by a bill of revivor, and its defects cannot be supplied by a supplemental bill ; but that by an original bill in the nature of a supplemental bill the benefit of the former proceedings may be obtained (a) . A bill for this purpose must state the original bill, the proceedings upon it, the event which has determined the interest of the party by or against whom the former bill was 0) Clare y.Wordell, 2 Vera. 1 Sim. & Stu. 495. 548; 1 Eq. Ca. Ab. 83 ; Min- (tj) Child v. Frederick, 1 P. skull v. Lord Mokun, 2 Vera. Wms. 266. 6/2 ; Mordaunt v. Minskull, (z) See above p. 86. 6 Bro. P. C. 32, Trail. Ed.; (a) See Houlditck v. Marquis Johnson v. Nortkey, Prec. in of Donegall, 1 Sim. & Stu. Cha. 134 ; S. C. 2 Vera. 407 ; 491. S. III.] SEVERAL KINDS OF BILLS. 119 exhibited, and the manner in which the property has vested in the person become entitled. Jt ust then show the ground upon which the court ought to grant the benefit of the former suit to or against the person so become entitled ; and pray the decree of the court adapted to the case of the plaintiff in the new bill (b). This bill, though partaking of the nature of a sup- plemental bill, is not an addition to the original bill, but another original bill, which in its consequences may draw to itself the advantage of the proceedings on the former bill (c) (1). IV. Informations (d) in every respect follow the Iv - informations. (b) 6 Bro. P.C. 24, Tom. Ed. 87, 88. (c) See 9 Ves. 55, above, pp. (d) See above, pp. 21 — 24. (1) Where a defendant dies, after putting in his answer, and de-vising his estate, which the bill seeks to affect, to persons who are not parties to the bill, the plaintiff may, in another bill against such defendant, his devisees and executors, and a surviving party to the first bill, state the allegations contained in the first bill, and mav introduce various passages of the answer, by way of pretence or otherwise, and meet such passages by charges, without rendering the second bill impertinent. For, as to the repetition of the state- ments contained in the first bill, that is necessary in order to enable the fresh parties to understand the nature of the case made by the first bill, of the contents of which it must be assumed that they are ignorant. And as to the insertion of passages from the answer and charges to meet them, the plaintiff is entitled to the same advantage against the devisees and executors as if they had been parties to the original bill, in which case he might have amended the original bill by stating the defendant's answer by way of pretence, and inserting charges to meet it. The second bill above mentioned may be termed an original bill in the nature of a supplemental bill, it being original as to the fresh parties, but supplemental as regards the former bill. Woods v. Woods, 10 Sim. 193. 20 FRAME AND END OF THE [ChAP. I. nature of bills, except in their style. When they concern only the rights of the crown, or of those whose rights the crown takes under its particular protection, they are exhibited in the name of the king's attorney or solicitor-general as the informant ; and, as before observed, in the latter case always, and in the former sometimes, a relator is named, who in reality sustains and directs the suit. It may happen that this person has an interest in the matter in dispute, and sustains the character of plaintiff as well as of relator ; and in this case the pleading is styled an information and bill. An information concerning the rights of the queen is exhibited also in the name of her attorney-general. [100] The proceedings upon an information can only abate by the death, or determination of interest, of the defendant. If there are several relators, the death of any of them, while there survives one, will not in any degree affect the suit ; but if all the re- lators die, or if there is but one, and that relator dies, the court will not permit any further proceeding till an order has been obtained for liberty to insert the name of a new relator, and such name is inserted accordingly (e) , otherwise there would be no person liable to pay the costs (f) of the suit in case the information should be deemed improper, or for any other reason should be dismissed. (e) Att. Gen. v. Powell, Sim. & Stu. 40 ; and see Anon. Dick. 355. And the application Sel. Ca. in Cha. G9 ; Att. Gen. must be made by the attorney- v. Fellows, 1 Jac. & W. 254. general, or with his consent. (/') 1 Ves. 72 ; Att. Gen. v. Att.Gen.x.Plumptree, 5 Madd. Middleton, 2 Ves. 327. 452; Wellbeloved v. Jones, 1 S. III.] SEVERAL KINDS OF BILLS. 121 The difference in form between an information and a bill consists merely in offering the subject-matter as the information of the officer in whose name it is exhibited, at the relation of the person who suggests the suit in those cases where a relator is named, and in stating the acts of the defendant to be injurious to the crown, or to those whose rights the crown thus endeavours to protect. When the pleading is at the same time an information and bill it is a compound of the forms used for each when separately ex- hibited (g). (ff) It may here be observed, with respect to informations on behalf of public charities, that the practice of this court has been to control the governors or other directors of them, in those cases only in which they have had the disposition of its revenues ; and that this limited authority has been exerted under its general jurisdiction in relation to trusts : although it has gone beyond the ordinary cases on that subject by regu- lating the exercise of their dis- cretion. 2 Ves. 89 ; 2 Ves. 328 ; Att. Gen. v. Foundling Hospital, 2 Ves. J. 42 ; S.C. 4 Bro. C. C. 1G5; Att. Gen. v. Bixi-, 13 Ves. 519; Att. Gen. v. Earl of Clarendon, 1 7 Ves. 491; 3 Ves. & Bea. 154; Att. Gen. v. Brown, 1 Swanst. 2G5; Att. Gen. v. Mayor of Bristol, 3 Madd. 319; S. G. 2 Jac. & W. 294 ; Foley v. Wontner, 2 Jac. & W. 245 ; Att. Gen. v. Bailer, 1 Jac. R. 407; Att. Gen.v. IIeelis,2 Sim. & Stu.67; Att. Gen.x. Mayor of Stamford, reported 2 Swanst. 591 ; Att. Gen. v. Vivian, 1 Russ. R. 22G. It has already been observed in the text, p. 19, that this court is empowered by the 52 Geo. III. c. 101, to interfere in such cases as relate only to the plain breach of trusts created for charitable purposes, on what is technically termed a petition in a summary way. As to which see also Ex parte Berk- hampstead School, 2 Ves. & Bea. 134 ; Ex parte Bees, 3 Ves. & Bea. 10; Ex parte Brown, Coop. R.295 ; Ex parte Skinner, 2 Meriv. 453; S. C. 1 Wils.R. 14 ; Ex parte Green- house, 1 Swanst. 60 ; S. C. 1 Wils. R. 18; In re Slewings Charity, 3 Meriv. 707 ; Att. Gen. v. Green, 1 Jac. & W. 303 ; In re Bedford Charity, 2 Swanst. 470 ; in the matter 122 FRAME AND END OF BILLS, &C. [CHAP. I. [1011 I n this investigation, of the frame and end of the several kinds of bills the matters requisite to the sufficiency of each kind have been generally con- sidered ; but they will in some degree be more par- ticularly noticed in the following chapter, in treating of the defence which may be made to the several kinds of bills, and consequently of the advantages which may be taken of their insufficiency both in form and substance. of St. Wenris Charity, 2 Sim. rized to decide in certain other & Stu. 66, and see 2 Swanst. cases relating to the property 518,525. And it may here of charities, upon a petition, by be added, that it is also autho- the 59 Geo. III. c. 91. 123 CHAPTER THE SECOND. [102] OF THE DEFENCE TO BILLS. Section I. By whom a Suit may be defended. In treating- of the defence which may be made to a bill it will be proper to consider, I. By whom a suit may be defended. II. The nature of the va- rious modes of defence ; under which head will be considered, 1, demurrers; 2, pleas; 3, answers and disclaimers, or any two or more of them jointly, each referring to a separate and distinct part of the bill. When the interest of the crown, or of those whose ™ e \ttoraey g or by . , , , ., ,. , , ,. i solicitor-general. rights are under its particular protection, is concerned in the defence of a suit, the king's attorney-general, or during the vacancy of that office the solicitor- general, becomes a necessary party to support that interest (a) ; but it has been already observed, that a suit in the court of chancery is not the proper remedy where the crown is in possession, or any title vested in it is sought to be divested, or af- fected (b), or its rights are the immediate and sole object of the suit. The queen's attorney or soli- citor seems to be the party necessary to defend her [103] rights (c). (a) Balch v. Wastall, 1 P. (4) See above, p. 33. Wms. 445; 2 Sch. & Lefr. (c) See 2 Roll. Ab. 213. But Gl/. a queen dowager has been sued 124 BY WHOM A WRIT [Chap. II. Those who are able to defend a suit alone. Those who are unable. and persons in a second childhood Idiots and lunatics. [104] All other bodies politic and corporate, and persons who do not partake of the prerogative of the crown, and have no claim to its particular protection, de- fend a suit either by themselves, or under the pro- tection of or jointly with others. Bodies politic and corporate, and persons of full age, not being married women, or idiots or lunatics, defend a suit by themselves ; but infants, idiots and lunatics, are incapable by themselves of defending as they are of instituting a suit ; and married women can only defend jointly with their husbands, except under particular circumstances, unless a special order is obtained to authorize or compel their defending separately. Infants institute a suit by their next friend ; but to defend a suit the court appoints them guardians, who are usually their nearest relations, not concerned in point of interest in the matter in question {d) . If a person is by age, or infirmities, reduced to a second infancy, he may also defend by guardian (e) . Idiots and lunatics defend by their committees (/), who are by order of the court appointed guardians as a common person. 9 Hen. VI. 53. Writ of annuity against Joan, queen dowager of Henry IV. (d) Offley v. Jenney, 3 Ch. Rep. 51. On the subject of appointing guardians ad litem for infant defendants, see Bras- sinyton v. Brussinyton, 3Anstr. 369 ; Eyles v. Lc Gros, 9 Ves. 12 ; Jonysma v. Pfiel, 9 Ves. 357 ; Williams v. Wynn, 10 Ves. 159; Hill v. Smith, 1 Madd. R. 290 ; Lushinyton v. Sewell, G Madd. 28, sed vide Tappen v. Norman, 1 1 Ves. 563. (e) Leving v. Caverly, Prec. in Chan. 229 ; 1 Eq. Ca. Ah. 281 ; Wilson v. Grace, 14 Ves. 1/2 ; and see Att. Gen. v. Waddinyton, 1 Madd. R. 321. (/) 1 Vera. 10G; Lyon v. Mercer, 1 Sim. & Stu. 350. S. I.] MAY BE DEFENDED. 1 25 for that purpose as a matter of course (g) ; and ii it happens that an idiot or a lunatic has no com- mittee (//) , or the committee has an interest opposite to that of the person whose property is intrusted to his care (/'), an order may he obtained for appointing another person as guardian for the purpose of de- fending a suit (k). So if a person who is in the condition of an idiot or a lunatic, though not found such by inquisition, is made a defendant, the court upon information of his incapacity will direct a guardian to be appointed (/) . A married woman, though she cannot by herself Marrledwomen - institute a suit, and if her husband is not joined with her must seek the protection of some other person as her next friend, may yet, by leave of the court, de- fend a suit separately from her husband without the protection of another (m). Thus, if she claims in opposition to any claims of her husband, or if she lives separate from him (w) , or disapproves the de- fence he wishes her to make (0) , she may obtain an order for liberty to defend the suit separately (p), (ff) JVestcomb v. West comb, Stu. 163. Dick. 233. {») Port man v. Popham, (h) Hoivlett v. Wilbraham, Tothill, 75 ; Jackson v. Ha- 5 Madcl. 423. worth, 1 Sim. & Stu. 161. (?) Snell v. Ihjat, Dick. (p) Ex parte Ilalsam, 2 Atk. 287 ; see Lloyd v. , Dick. 50 ; 2 Eq. Ca. Ab. 66. 460. (])) Powel v. Prentice, Ca. t. (k) Hoivlett v. Wilbraham, Hardw.258; Wy bourn \. Blunt, 5 Madd. 423. Dick. 155. A separate answer (I) Anon. 3 P. Wms. Ill, put in by a married woman with- note ; see Wilson v. Grace, 14 out an order for the purpose Ves. 172. may be suppressed as irregu- (;«) 4 Vin. Ab. 147, Baron larly filed. But if filed with aucl Feme, I. a. 20 ; 1 Sim. & her approbation, and accepted 126 BY WHOM A WRIT, &C. [CHAP. II. [105] and her answer maybe read against her( Ves. 686 ; 7 Ves. 24.5; murrer, decides upon the facts 2 ?ch.v\; :LeiY. 638 ; 6Madd.95. S. II. P. I.] DEMURRERS. 131 to original bills, under which head the nature of demurrers in general, and the principal grounds of demurrer to every kind of bill, will be necessarily noticed : the distinct causes of demurrer peculiar to the several other kinds of bills will be then men- tioned ; and in the third place will be considered the frame of demurrers in general, and the manner in which their validity is determined. In treating of original bills they have been divided into bills praying relief, and bills not praying relief; and it has been mentioned that both require a dis- covery from the party against whom the bill is exhi- bited. Demurrers to original bills may therefore be considered under two heads; first, demurrers to relief, which frequently include a demurrer to discovery ; and secondly, demurrers to discovery only, which sometimes consequentially affect the relief. Under these heads will necessarily be considered the causes of demurrer, as well to bills which seek a discovery only as to such as likewise pray relief. From what has been observed in a preceding page [110] it may be collected that the principal grounds of ofdemuSS 1 to s • . . . relief. objection to the relief sought by an original bill, which can appear on the bill itself, and may therefore be taken advantage of by demurrer, are these (0) ; I. that the subject of the suit is not within the juris- diction of a court of equity ; II. that some other court of equity has the proper jurisdiction ; III. that (o) It has been said that a ply to the court that thebill may defendant may demur to a bill be dismissed. Anon. Mosely, if it appears upon the face of it 47, 356 ; Anon. Bunbury, 17 ; to be brought for a very small Owens v. Smith, Comyn, 715 ; sum ; but it is most usual toap- Brace v. Taylor, 2 Atk. 253. K2 132 DEMURRERS. [ClIAP. II. the plaintiff is not entitled to sue by reason of some personal disability ; IV. that he has no interest in the subject, or no title to institute a suit concerning it ; V. that he has no right to call on the defendant concerning the subject of the suit ; VI. that the de- fendant has not that interest in the subject which can make him liable to the claims of the plaintiff; VII. that for some reason founded on the substance of the case, the plaintiff is not entitled to the relief he prays. To these may be added, VIII. the deficiency of the bill to answer the purpose of complete justice : and IX. the impropriety of confounding distinct sub- jects in the same bill, or of unnecessarily multiplying tothereutf^w suits. When the discovery sought by a bill can only covery. be assistant to the relief prayed, a ground of demurrer to the relief will also extend to the discovery ; but if the discovery may have a further purpose, the plain- tiff may be entitled to it though he has no title to [111] relief. In considering, therefore, these several grounds of demurrer to relief, such as may, and such as cannot, extend to discovery likewise, will be distinguished. dlcum 1 of julis " I- The general objects of the jurisdiction of a court of equity (1) have been noticed in a former page (p) ; where the juris- and from thence it may be collected, that the juris- diction is exer- , , , . . , cise( i- diction, when it assumes a power ot decision, is to be O) Pages 4, 5. (1) The reader is referred generally to the Treatises on the subject of Equity Jurisprudence or Jurisdiction, as to this part of Lord Redesdale's Treatise, extending from this page to page [151], inasmuch as it belongs to that subject rather than to the subject of Equity Pleadings, and embraces a very wide field. S. II. P. I.] DEMURRERS. 133 exercised, 1, where the principles of law, by which the ordinary courts are guided, give a right, but the powers of those courts are not sufficient to afford a complete remedy, or their modes of proceeding are inadequate to the purpose ; 2, where the courts of ordinary jurisdiction are made instruments of injus- tice; 3, where the principles of law by which the ordinary courts are guided give no right, but upon the principles of universal justice the interference of the judicial power is necessary to prevent a wrong, and the positive law is silent : and it may also be collected that courts of equity, without deciding upon the rights of the parties, administer to the ends of justice by assuming a jurisdiction, 4, to remove impediments to the fair decision of a question in other courts ; 5, to provide for the safety of property in dispute pending a litigation, and to preserve property in danger of being dissipated or destroyed by those to whose care it is by law intrusted, or by persons having immediate but partial interests; 6, to restrain the assertion of doubtful rights in a manner pro- ductive of irreparable damage; 7, to prevent injury [112] to a third person by the doubtful title of others ; and 8, to put a bound to vexatious and oppressive liti- gation, and to prevent multiplicity of suits: and further, that courts of equity, without pronouncing any judgment which may affect the rights of parties, extend their jurisdiction, 9, to compel a discovery, or obtain evidence which may assist the decision of other courts; and 10, to preserve testimony when in danger of being lost before the matter to which 134 DEMURRERS. [Chap. II. it relates can be made the subject of judicial in- vestigation. compSemedy !• Cases frequently occur in which the prin- ie g aTr P igi l t t, i U a the ciples (a) by which the ordinary courts are guided in case of r l their administration of justice give a right, but from accident orfraud, or defect in their mode of proceeding, those courts can afford no remedy, or cannot give the [113] most complete remedy ; and sometimes the effect of a remedy attempted to be given by a court of ordi- nary jurisdiction is defeated by fraud or accident. In such cases courts of equity will interpose to give those remedies which the ordinary courts would give if their powers were equal to the purpose, or their mode of administering justice could reach the evil ; (q) The existence of courts of equity in England distinct from the courts of ordinary ju- risdiction, has suggested an idea that the ordinary courts, and especially the courts of common law, have not in their adminis- tration of justice any recourse to such principles of decision as are merely rules of equity. But in fact those principles have been as constantly applied by the ordinary courts as by the courts of equity (1), except where they have clashed with established rules of the common law, and where the forms ob- served in the proceedings of the ordinary courts have not admitted of the application. And from time to time the courts of common law have also been induced to admit, as groimds of their decision, rules established in the courts of equity, which they had before rejected as clashing with esta- blished rules of the common law ; and for some purposes they have also noticed prin- ciples of decision established in the courts of equity, which the forms of proceeding in the courts of common law have not enabled them directly to enforce. (1) See Smith's " Manual of Equity Jurisprudence," Introd. Sect. I. S. II. P. I] DEMURRERS. 135 and also to enforce remedies attempted to be given by those courts when their effect is so defeated. Thus where an instrument on which a title is lost bonds, founded, as a bond, is lost, a court of equity will in- terfere to supply the defect occasioned by the accident, and will give the same remedy which a court of com- mon law would have given if the accident had not happened (r). If an instrument has been destroyed, instruments ue - •■■ y ' stroyed, sup- or is fraudulently suppressed, or withheld from the lid," 6 ' 1, or wi,h " party claiming under it, courts of equity will also give relief ( a 1 ) ; as they will generally lend their aid whenever by fraud or accident a person is prevented from effectually asserting in the courts of ordinary jurisdiction rights founded on principles acknow- ledged by those courts ( 1 ) . In some instances courts of law have acted on the supposed destruction or suppression of an instrument, [ 1 1 4] where formerly those courts conceived they could not act for want of the instrument, especially in the par- ticular mode of proceeding. Thus in the case of a supposed suppression or destruction of a lease for lives under a power in a settlement, the supposed lessee (>•) 1 Ca. in Cha. 11 ; 1 Eq. Hob. 109 ; Eijton v. Eyton, 2 Ca.Ab. 92; 1 Atk.287; Anon. 2 Vera. 380 ; Sanson v. Rumsey, Atk. 61 ; Anon. 3 Atk. 1"; 1 2 Vera. 561 ; Dalstonw Coats- Yes. 34 1 ; 5 Ves. 238 ; 7 Ves. 1 9 ; worth, 1 P. Wms. 731 ; Cowper East India Company v.Boddam, v. Earl Cowper, 2 P. Wms. 9 Ves. 464 ; Seagrave v. Sea- 720 ; Atkins v. Fan; 1 Atk. grave, 13 Ves. 439; Smithy. 287; Tucker v. Phipps, 3 Atk. Bir knell, 3 Ves. & B. 51, n. 359 ; 1 Ves. 392; Saltern v. Stokoe v. Robson, 3 Ves. & B. Melhuish, Ambl. 249 ; Bowles 51. v. Stewart, 1 Scb. & Lefr. 209. (s) See Lordllunsdon' s case, (1) See note (1) to p. 132. 136 DEMURRERS. [ChAP. II. was permitted to obtain on parol testimony a verdict and judgment in ejectment, upon a feigned demise, the form of the proceeding not requiring the lease in question to be in any manner stated in the pleadings, so that it could not appear upon the record under what title the recovery was had, or what specific lands were in the supposed lease, what were the lives for which it was granted, what the rent reserved, or what covenants bound either party ; or whether the lease was or was not according to the powers under which it was alleged to have been made. The con- sequence necessarily was a suit in equity to have all those facts ascertained, and to restrain the exe- cution of the judgment in ejectment in the mean time ( 1 ) . ,yaste, In restraining waste (1), by persons having limited interests in property, the courts of equity have gene- rally proceeded on the ground of the common -law rights of the parties, and the difficulty of obtaining immediate preservation of property from destruction or irreparable injury by the process of the common law (t) but upon this subject the jurisdiction has been extended to cases in which the remedies pro- [115] vided in those courts could not be made to apply (u). (t) See Field v. Jackson, a remedy, see 2 Freem. 54 ; Dick. 599; Davis v. Leo, 6 Ves. Perrot v. Perrot, 3 Atk. 94 ; 3 784; Smith v. Collyer, 8 Ves. Atk. 210; Tarrant v. Lovel, 3 89; 9 Ves. 356; 19 Ves. 154. Atk. 723 ; 3 Atk. 755, 756; (m) As to the instances where Mollineux v. Powell, 3 P. AVms. the title is legal, and the courts 268, n ; 3 Bro. C.C. 544 ; On- of law admit the existence of slow v. , 16 Ves. 163; an injury, but do not afford Pratt v. Brett, 2 Madd. R. 62; (1) See note (1) top. 132. S. II. P. I.] DEMURRERS. 137 Where an act of parliament has expressly given a right, the courts of ordinary jurisdiction have been found incompetent to give, in all cases, a full and complete remedy, and the courts of equity have therefore interposed (1). Thus in the case of a person insolvent debtors, who had been discharged under an act for relief of insolvent debtors, by which his future effects were made liable to the demand of his creditors, but his person was protected ; the court of chancery, exer- cising its extraordinary jurisdiction, enforced a judg- ment of a court of common law against his effects, which were so circumstanced as not to be liable to execution at the common law (x). Where parties by contract have given a right, but have not provided a sufficient remedy, the courts of equity have also interfered (1). Thus where a rent rent, was settled upon a woman by way of jointure, but she [116] had no power of distress, or other remedy at law, the payment, according to the intent of the convey- ance, was decreed in equity (y). So where parties, imperfect instru- meaning to create a perfect title, have used an im- Brydges v. Stephens, 6 Madd. mora, 8 Yes. 70 ; Burges v. 2/9; as to those where the title is Lamb, 1G Yes. 174; Bag v. equitable, see 19 Ves. 151, 155 ; Merry, 1G Ves. 375; Mar- and as to those where the injury chioness of Ormonde v. Ky- is not acknowledged at law, nersley, 5 Madd. 3G9 ; Lv.sh- which are cases of equitable ington x.Boldero,6 Madd. 149; waste, see Chamberlynex.Bum- Coffin v. Coffin, 1 Jac. R. 70. mer, 1 Bro. C. C. 1G6; S. C. (a?) Edgell v. Haywood, 3 Dick. 600 ; Marquis of Bourn- Atk.352. See 1 Jac. &W.371. shire v. Sandys, G Ves. 107; (y) Plunhet v. Brereton, 1 Lord Tamivorthx. Lord Ferrers, Ch. Rep. 5; and see Buke of GYes. 419; Williams v. M'Na- Leeds v. Powell, 1 Yes. 171. merits, (1) See note (1) to p. 132. 138 DEMURRERS. [CHAP. II. perfect instrument, as a feoffment without livery of seisin (z) ; a bargain and sale without enrolment (a) ; a surrender of copyhold not presented according to the custom of the manor (b) ; courts of equity have considered the imperfect instrument as evidence of a contract for making a perfect instrument, and have re- medied the defect even against judgment-creditors (c) who had gained a lien in the land in question, though when the consideration has been inadequate, relief has not been extended so far (d) . Where the legis- lature has declared that an instrument wanting a particular form should be null and void to all intents and purposes, and it was manifestly the design of the legislature that those words should operate to the fullest extent, relief has been refused. Thus a bill of sale of a ship wanting a formality required by the Register Act was not made good in equity against assignees of the vendor become bankrupt (e). [117] Relief has also been given where a remedy at law bou^flries 0f was o r ig ma lly provided, but by subsequent accident could not be enforced ; as where, by confusion of boundaries of lands, remedy by distress for rent was defeated (/) (1) . So if the remedy afforded by the ordi- (z) Burgh v. Francis, cited (e) Hibbert v. Rolleston, 3 1 P. Wms. 279; Burgh v. Bro. C. C. 5/1; 6 Ves. 745 ; Burgh, Rep, t. Finch, 28. Speldt v. Lechmere, 13 Yes. (a) 6 Ves. 745. 588; Thompson v. Leake, 1 (b) Taylor v. Wheeler, 2 Madd. R. 39. Vein. 564. (/) 1 Ves. 172. Set North (c) See 1 P. Wms. 279. v. Earl and Countess of Straf (d) Finch v. Earl of Win- ford, 3 P. Wms. 148; Bouve- chelsea, 1 P. Wms. 277, 283. rie v. Prentice, 1 Bro. C. C. (1) See note (I) to p. 132. S. IIP I.] DEMURRERS. 139 nary courts is incomplete, a court of equity will lend its aid to give a complete remedy (g) (1). Upon this chattels of P ecu- ground a bill was admitted for recovery of an ancient silver altar claimed by the plaintiff as treasure trove within his manor : for though he might have reco- vered at law the value in an action of trover, or the thing itself, if it could be found, in an action of detinue, yet as the defendant might deface it, and thereby depreciate the value, it was determined that the defect of the law in that particular ought to be supplied in equity (h). And where an estate was held by a horn, and a bill was brought by the owner of the estate to have the horn delivered to him, a demurrer was over-ruled (i). Upon the same principle (k) the jurisdiction of the deeds and writ- court is supported in the very common case of a bill for delivery of deeds or writings (0(1), suggestingthat they are in the custody or power of the defendant ; [118] though in early times it seems to have been consi- 200, &nADuke of Leeds v. Cor- (k) See 2 Atk. 306. poration of New Radnor, 2 (7) The court of chancery has Bro. C. C. 338; S. C. ib. 518, long exercised its extraordinary and the cases there cited. jurisdiction in this case. See (ff) See 9 Ves. 33. 9 Edw. IV. 41 B. and Stat. 32 (h) Duke of Somerset v.Cook- Hen. VIII. c. 36, s. 9: and son, 3 P. Wms. 390 ; and see see on this subject Brown v. Fells v. Read, 3 Yes. 71 ; Low- Brown, Dick. 62; 1 Madd. ther v. Lord Lowther, 13 Ves. R. 192; Crow v. Tyrrell, 3 95. Madd. 1/9; Knye v. Moore, (i) Pusey v. Pusey, 1 Vera. 1 Sim. & Stu. 61 ; Balch v. 273; and see Earl of Maccles- Symes, 1 Turn. 87. field v. Davis, 3 Ves.& Bea. 16. (1) See note (1) top. 132. ance, 140 DEMURRERS. [CHAP. II. dered that the jurisdiction did not extend to cases where an action of detinue would lie (m). sped iic perform. j n £ ne case f contracts or agreements this prin- ciple is carried to the extent (1). The principles by which the courts of common law direct their deci- sions on the subject acknowledge the mutual right of the contracting parties to specific performance of the agreements they have made ; but the mode of proceeding in those courts enables them only to attempt to compel performance by giving damages for non-performance. Here therefore the courts of equity interfere to give that remedy which the ordinary courts would give if their mode of admi- nistering justice would reach the evil, by decreeing, according to the principles of the common law as well as of natural justice, specific performance of the agreement (;;) . This however extends only to con- tracts of which a specific performance is essential to [119] justice (o) ; for if damages for non-performance are all that justice requires, as in the case of a contract for stock in the public funds, a court of equity will (tn) 9 Edw. IV. 41 B. ; see made, the justice of which it also 39 Hen. VI. 26 ; Brooke is beyond the purpose of this Prser. 45 ; which seems to have treatise to consider. See 1 been in effect a bill for disco- Fonbl. Treat, of Eq. 151, n. (c) very and account. and 2 Sch. & Lefr. 347, and 0) 13 Ves. 76, 228 ; 2 Sch. Williams v. Steivard, 3 Meriv. & Lefr. 556; Uac. & W. 3/0. 472. As to the propriety of The courts of equity decree per- extending the application of the formance of agreement in many doctrine of part performance, cases where no action would lie see 3 Ves. 712, 713; 6 Ves. at the common law for non- 32, 37; 2 Sch. & Lefr. 5. performance ; and on this head (o) See 3 Bro. C. C. 543 ; 8 great complaints have been Ves. 1G3 ; 2 Sch. & Lefr. 347. (1) Seeuote (1) top. 132. S. II. P. L] DEMURRERS. 141 not interfere (/j) . In other cases where compelling a specific act is the only complete remedy for an injury, and the ordinary courts can attempt to give this remedy only by giving damages, the courts of equity will interfere to give the specific remedy, especially if the right has been established by the determination of the ordinary courts (q) . In some cases, as in matters of account (>") (1), par- S£J^5J3fc. tition of estates between tenants in common (s) , and m ' assignment of dower (0, a court of equity will enter- [120] (p) Cud v. Butter, 1 P.Wms. 570; 10 Ves. 161; 13 Ves. 37. (q) It is difficult to reconcile all the cases in which the courts of equity have compelled the performance of agreements, or refused to do so, with each other ; and in some cases where performance has been decreed, it is difficult to reconcile the decisions with the principles of equal justice. The cases and theirvarietiesare numerous, and have been ably collected in 1 Fonbl. Treat, of Equity. Of the later cases on the sub- ject, see Morphett v. Jones, I Swanst. 172; S. C. 1 Wils. Ch. R. 100; Garrard v. Grin- ling, 2 Swanst. 1, 244; S. C. 1 Wils. Ch. R. 460 ; Walker v. Barnes, 3 Madd. 247 ; Hud- son v. Bartram, 3 Madd. 440 ; Franklyn v. Tuton, 5 Madd. 469 ; Daivson v. Ellis, 1 Jac. & W. 524 ; Baxter v. Conolly, 1 Jac. & W. 576 ; Martin v. Mitchell, 2 Jac. & W. 413; Beaumont v. Dukes, 1 Jac. R. 422; Gordon v. Smart, 1 Sim. & Stu. 66 ; Bryson v. Whitehead, 1 Sim. & Stu. 74 ; Dolor et v. Rothschild, 1 Sim. & Stu. 590; Ling en v. Simpson, 1 Sim. & Stu. 600 ; Agar v. Macklew, Sim. & Stu. 418; Hasker v. Sutton, 2 Sim. & Stu. 513; Lewin v. Guest, 1 Russ. R. 325 ; Attwood v. , 1 Russ. R. 353. (?•) See 2 Yes. 388 ; Corpo- ration of Carlisle v. Wilson, 13 Ves. 276 ; 1 Sch. & Lefr. 309. (s) See 2 Freem. 26 ; 2 Ves. J. 570 ; Turner v. Morgan, 8 Ves. 143; 17 Ves. 552; I Ves. &B. 555; Miller v. Warming- ton, 1 Jac. & W. 484. (t) See Curtis v. Curtis, 2 Bro. C.C. 620; 2 Ves. J. 129; 1 7 Ves. 552. (1) See note (1) to p. 132. 142 DEMURRERS. [CHAP. II. tain jurisdiction of a suit, though a remedy might perhaps be had in the courts of common law. The ground upon which the courts of equity first inter- fered in these cases seems to have been the difficulty of proceeding to the full extent of justice in the courts of common law (u). Thus though accounts may be taken before auditors in an action of account in the courts of common law, yet a court of equity by its mode of proceeding is enabled to investigate more effectually long and intricate accounts in an adverse way, and to compel payment of the balance whichever way it turns (1). In the case of partition of an estate (2) , if the titles of the parties are in any degree complicated, the difficulties which have occurred in proceeding at the common law have led to applications to courts of equity for partitions, which are effected by first ascertaining the rights of the several persons inter- (w)2Ves. 388; 13Ves. 279. the jurisdiction was first assumed Perhaps in some of these cases to prevent multiplicity of suits. ( 1 ) A bill for an account is not demurrable merely because the Omission of an plaintiff does not offer to account at all, or does not offer to o er to account. account f or as muc h as h e ought to account for ; for he may be made to account to the foil extent of what is just, although he does not even admit himself to be an accounting party. Clarke v. Tipping, 4 Beav. 588. If a bill is filed for an account of the rents and profits received offer in a bill Dv tj ie grantee of an annuity, who, in consequence of its being in tor an account of •> ° J ^ ° rents received by arrear, is in possession of the premises demised to secure the an annuitant. * * annuity, the bill must contain an offer either to redeem on the terms of the annuity deed, or to re-purchase upon equitable terms to be settled by the court. Knebell v. White, 2 Y. & C. Eq. Ex. 15. (2) See note (1) to p. 132. S. II. P. I.J DEMURRERS. 143 ested, and then issuing a commission to make the partition required, and upon return of the commis- sion, and confirmation of that return by the court, the partition is finally completed by mutual convey- ances of the allotments made to the several parties (x). But if the infancy of any of the parties, or other circumstances, prevent such mutual conveyances, the decree can only extend to make the partition, give possession, and order enjoyment accordingly [121] until effectual conveyances can be made. If the defect arise from infancy, the infant must have a day to show cause against the decree after attaining twenty-one ; and if no cause should be shown, or cause shown should not be allowed, the decree may then be extended to compel mutual conveyances (?/). If a contingent remainder, not capable of being barred or destroyed, should have been limited to a person not in being, the conveyance must be delayed until such person shall come into being, or until the contingency shall be determined ; in either of which cases a supplemental bill will be necessary to carry the decree into execution. An executory devise may occasion a similar embarrassment (z) . In the case of dower (1) the widow is often much embarrassed in proceeding upon a writ of dower at the common law, to discover the titles of her de- (») See Cartwriyht v. Putt- ton, 1 Macld. R. 214. tie;/, 2 Atk.380; 2 Sch. & Lefr. (~) See the ease of Will* S72 ; 1 Jac. & W. 493. v. Stade, 6 Ves. 498. (y) See Att. Gen. v. Hamil- (1) See note (1) top. 132. 144 DEMURRERS. [ClIAP. II. ceased husband to the estates out of which she claims her dower, to ascertain their comparative value, and obtain a fair assignment of a third. How far the courts of equity will assist a widow in the assignment of dower has been at different times a subject of much question ; but the result of various decisions seems to have settled, that where there is no ground of equity, as a purchase for valuable con- sideration (tf), to prevent their interference, the courts will proceed to set out dower ; though if the title to [122] dower be disputed, it must be first established at law ib) . In all these cases the courts of equity will lend their aid ; but they have generally considered them- selves in so doing as proceeding merely on rights which may be asserted in a court of common law, and therefore in the two cases of partition, and assignment of dower, as no costs can be given in a court of common law upon a writ of partition or a writ of dower, no costs have been commonly given in a court of equity upon bills brought for the same (a) Williams v. Kambe, 3 a like decision was made in Bro. C. C. 264. Meggott v. Meggott, in Cha. (b) Curtis v. Curtis, 2 Bro. 15 Oct. 1743. But in Aim? v. C. C. G20 ; Mundy r.Mundy, Read, 15 Dec. 1744, the court 2 Ves. J. 122. The last case retained the bill, and ordered was upon a demurrer, which the deeds to be produced, with after much consideration was liberty to the plaintiff to bring over-ruled. Lord Talbot had a writ of dower, which was also over-ruled a demurrer under done in Curtis v. Curtis, 15 similar circumstances in Moorx. May 1778; finally reported in Blake, 26 July, 1735, reported 2 Bro. C. C. 620. See also Ca. Temp. Talb. 126, by the the case of D'Arcy v. Blake, name of Moore andBlack. And 2 Sch. & Lefr. 387. S. II. P. I.] DEMURRERS. 14' purposes (/;) ; and as arrears of dower can be reco- vered at common law only from demand, the same rule was adopted in the courts of equity, unless par- ticular circumstances had occurred to warrant a de- parture from the course of the common law, founded on the terms of a statute (c). The courts of equity U - -> I having gone the length of assuming jurisdiction in a variety of complicated cases of account, of partition, and of assignment of dower, seem by degrees to have been considered as having on these subjects a concurrent jurisdiction (d) with the courts of common law in cases where no diffi- culty would have attended the proceedings in those courts. But except in these instances, and in some cases 9 noticed in a subsequent page, the courts of equity will not assume jurisdiction where the powers of the ordinary courts are sufficient for the purposes of justice ; and therefore, in general, where a plaintiff can have as effectual and complete remedy in a court of law as in a court of equity, and that remedy is clear and certain (e) , a demurrer, which is in (b) See Lucas v. Calcraft, (c) In the case of Curtis v. Dick. 594. With respect to Curtis, 2 Bro. C. C. 620, this costs in cases of partition, see rule was not observed. Calmadyy. Calmady, 2 Ves. J. (d) 13 Ves. 279 ; 1 Sch. & 568 ; Agar v. Fairfax, 1/ Ves. Lefr. 309 ; 1 Ves. & Bea. 555. 533 ; 1 Ves. & Bea. 554 ; and (e) Parry v. Owen, 3 Atk. in cases of dower, see Lucas v. 740 ; Ghetto^ v. Lond. Assur. Calcraft, 1 Bro. C. C. 134, and Comp. 4 Bro. P. C. 436, Toml. S. C. 1 Ves. &Bea. 20, note; Ed.; 1 Eq. Ca. Ab. 131 ; 2 Ves. 128 ; Worgan v. Ryder, Bensley v. Burdon, 2 Sim. & 1 Ves. & Bea. 20. Stu. 519. eneral rule ;ts to orisdiction. 146 Affidavit neces- sary in support of a bill founded on a lost instru- ment, [124] or a bill for a dis- covery of an in- strument. DEMURRERS. [ChAP. II. truth a demurrer to the jurisdiction of the court, will hold (/) (1). If an accident is made a ground to give jurisdic- tion to the court in a matter otherwise clearly cog- nizable in a court of common law, as the loss or want of an instrument on which the plaintiff's title is founded, the court will not permit a bare sugges- tion in a bill to support its jurisdiction ; but requires a degree of proof of the truth of the circumstance on which it is sought to transfer the jurisdiction from a court of common law to a court of equity (g) , by an affidavit of the plaintiff annexed to and filed with the bill. Thus if a bill is brought to obtain the benefit of an instrument upon which an action at law would lie, alleging that it is lost, and that the plaintiff therefore cannot have remedy at law, an affidavit of the loss must be annexed to the bill, or a demurrer will hold {h) . So in the case of a bill for discovery of any in- strument, suggesting that it is in the custody or power of the defendant, and praying any relief which might be had at law if the instrument was in the (/) As courts of equity dis- 3 Madd. 1 ; S. C. 1 Jac. R. claim all right to decide upon the validity of wills, whether of real or of personal estate, a demurrer to a bill whereby such a determination is sought will hold. See Jones v. Jones, 3 Meriv. 161 ; Jones v. Frost, 3 Madd. 466. ((/) Whitchurch v. Goldiny, 2 P. Wms. 541 ; 3 Atk. 132. (h) See Walmsley v. Child, 1 Ves. 342 ; Hook v. Dorrnan, 1 Sim. & Stu. 227. (1) See Smith's Manual of Equity Jurisprudence, Introd. Sect. I. S. II. P. 1. 1 DEMURRERS. 147 hands of the plaintiff, an affidavit must be annexed to the bill that the instrument is not in his custody or power, and that he knows not where it is, unless it is in the hands of the defendant. But if the relief sought extends merely to the delivery of the instru- ment, or is otherwise such as can only be given in a court of equity, such an affidavit is not neces- sary (/) . It is also unnecessary in the case of a bill for discovery of a cancelled instrument, and to have another deed executed (/<•) ; for if the plaintiff had the cancelled instrument in his hands, he could make no use of it at law, and indeed the relief prayed is [125] such as a court of equity only can give. A suggestion that the evidence of the plaintiff's demand is not in his power is essential to a bill under these circumstances ; and if it is defective in this point, the defendant may by demurrer allege that there is no such charge in the bill (/) . Where a right of action at law was in a trustee, JJSJStoSS? and the person beneficially entitled filed a bill fixr tmrttoj^* relief, suggesting a refusal by the trustee to suffer an action to be brought in his name, a demurrer has been allowed (;») ; and if a mere suggestion to this effect would support a bill, the jurisdiction in many cases might improperly be transferred from a court of law to a court of equity. By demurring to a bill because the plaintiff may have remedy at law, the defendant will not be de- (?) Whitworth v. Golding, (/) 3 P. Wms. 395. Mos. 192; Nels. Rep. 78; (m) Ghettofv. Lond.Assvr. Anon. 3 Atk. 17. Comp. 4 Brown, P. C. 436, (/i) King v. King, Mos. 192. Toml. Ed. And see 1 Atk. 547. l2 action in liis name. 148 DEMURRERS. [CHAP. II. barred of relief in equity upon another bill, if the plaintiff in the first bill should proceed at law and recover (w). ^om^other'court This objection to a bill is not confined to cases than a court of man a cuiui ui • 1 1 • ; f* 1 T O common law has cognizable in courts of common law. 11 any other jurisdiction. ° J court of ordinary jurisdiction, as an ecclesiastical court, court of admiralty, or court of prize, is com- petent to decide upon the subject, a demurrer will equally hold ; except that the courts of equity have in the case of tithes, and in the disposition of the effects of persons dying testate or intestate, assumed [126] a concurrent jurisdiction with the ecclesiastical courts, as far as the jurisdiction of those courts ex- tends ; and indeed the courts of equity in many of these cases can give more complete remedy than can be afforded in the ecclesiastical courts, and in some cases the only effectual remedy. the judgment of Courts of equity will also lend their aid to enforce nwy jurisdiction, the judgments of courts of ordinary jurisdiction (1) ; and therefore a bill may be brought to obtain the execution or the benefit of an elegit (o) , or a fieri facias (p) t when defeated by a prior title, either frau- dulent, or not extending to the whole interest of the debtor in the property upon which the judgment is proposed to be executed. In some cases, where courts of equity formerly lent their aid, the legisla- (n) Humphrey s\ .Humphreys, Stileman v. Ashdown, 2 Atk. 3 P. Wms. 395. COS. (o) Leiokenerv. Freeman, Pr. (p) S)nithierx.Lewis,\Yem. inCha. 105; Higgins v. York 399; Balch v. Wastall, 1 P. Build. Comp. 2 Atk. 107 ; Wms. 445. (1) See note (1) to p. 132. S. II. P. I] DEMURRERS. 149 turc has by express statute provided for the relief of creditors in the courts of common law ; and conse- quently rendered the exertion of this jurisdiction in such cases unnecessary. In any case to procure relief in equity, the creditor must show by his bill that he has proceeded at law to the extent necessary to give him a complete title. Thus in the cases alluded to of an elegit and fieri facias he must show that he has sued out the writs the execution of which is avoided, or the defendant may demur {([) ; but it is not necessary for the plaintiff to procure returns to those writs (/*) . The judgments of the ecclesiastical courts giving [127] civil rights will receive the same aid from a court of mentaofthf j Ecclesiastical equity as those of the courts of common law ; and courts. therefore where a person against whom there was a sentence in an ecclesiastical court at the suit of his wife for alimony, intended to avoid the execution of the sentence by leaving the kingdom, the court of chancery entertained a bill for a writ of ne exeat regno, to restrain him from leaving the kingdom until he had given security to pay the maintenance decreed is) . 2. Sometimes a part v, by fraud, or accident, or -• To p™ ve,, , t llc * J » J > other courts from (q) Jngellv. Draper, 1 Vein. Jf'astall, 1 P. Wins. 445. 398 ; Shirley v. Watts, 3 Atk. (*) Read v. Read, 1 Ca. to 200. Cha. 115 j Sir Jerom. Smith- (r) Manningham v. Lord son's case, 2 Ventr. 345 j Jnon. Bolingbroke, Elegit, Easter, 2 Atk. 210; Ambl. 76; Shaft oe 1777, in Chan.; Kennard v. v.Shaftoe,7Yea.l7l;Datoson Moore, in Chan. June 23, 1 7T>G ; v. Dawson, ib. 173 ; Oldham v. 2 Eq. Ca. Ab. 251; King v. Oldham, ib. 410; Hafey v. Marissal, 3 Atk. 192; 8. C. Hafey, 14 Ves. 261. ib. 200. But see Balch v. 150 DEMURRERS. [ChAP. II. hStroSSf onn- otherwise, has an advantage in proceeding in a court of ordinary jurisdiction which must necessarily make that court an instrument of injustice ; and it is therefore against conscience that he should use the advantage (1). In such cases, to prevent a manifest wrong, courts of equity have interposed, by restrain- ing the party whose conscience is thus bound from using the advantage he has improperly gained ; and upon these principles bills to restrain proceedings in [128] courts of ordinary jurisdiction are still frequent, though the courts of common law have been enabled, by the assistance of the legislature, as well as by a more liberal exertion of their inherent powers, to render applications of this nature to a court of equity unnecessary in many cases where formerly no other frYXmutake, remedy was provided. Thus if a deed is fraudulently accident, and . . ... „ . oppression. obtained without consideration, or for an inadequate consideration, or if by fraud, accident or mistake, a deed is framed contrary to the intention of the parties in their contract on the subject, the forms of pro- ceeding in the courts of common law will not admit of such an investigation of the matter in those courts as will enable them to do justice. The parties claim- ing under the deed have therefore an advantage in proceeding in a court of common law which it is against conscience that they should use ; and a court of equity will on this ground interfere to restrain proceedings at law until the matter has been properly investigated, and if it finally appears that the deed has been improperly obtained, or that it is contrary (1) See note (i) to p. 132. S. II. P. I.] DEMURRERS. 151 to the intention of the parties in their contract, will in the first case compel the delivery and cancellation of the deed, or order it to be deposited with an officer of the court ; and will compel a re-conveyance of property if any has been so conveyed that a re- conveyance may be necessary (t) ; and in the second case will either rectify the deed according to the intention of the parties, or will restrain the use of it in the points in which it has been framed contrary to, or in which it has gone beyond, their intention in their original contract (u) . The instances of the exer- cise of the jurisdiction of courts of equity in these cases, and especially in the case of a deed fraudu- lent! v obtained, are numerous (x (t) See on this subject, Bishop of Winchester v. Four- nier, 2 Ves. 445 ; Bates v. Graves, 2 Ves. J. 287 ; Pr ingle v. Hodgson, 3 Ves. 617; Wright v. Proud, 13 Ves. 136; Ware v. Norwood, 14 Ves. 28 ; Hu- guenin v. Basel eg, 14 Ves. 273; Willan v. Willan, 16 Ves. 72; Murray v. Palmer, 2 Scb. & Lefr. 474; Walker v. Symonds, 3 Swanst. 1 ; Gordon v. Gor- don, 3 Swanst. 400 ; Wood v. Abrey, 3 Madd. 417; Twed- detl v.Tweddell, 1 Turn. R. 1. («) See 2 Atk. 33, 203; Henlde v. Royal Exchange Assur. Comp. 1 Ves. 317; Rogers v. Earl, Dick. 294 ; Mar([uis of Townshend v. Stan- groom, 6 Ves. 328 ; Clowes v. lligginson, 1 Ves. & Bea. 524; Beaumont v. Bramley, 1 Turn. On the ground R. 41 ; Ball v. Storie, 1 Sim. &Stu. 210; 2 Sim.&Stu. 178. (x) It has been sometimes doubted whether the court ought to compel the delivery and cancellation of an instru- ment which ought not to be enforced, and whether the more proper course would not be to order a perpetual injunction to restrain the use of the instru- ment. See 1 Ves. J. 284 ; Ryan v. Mackmath, 3 Bro. C. C. 15, and the cases there cited, and Mason v. Gardiner, 4 Bro. C. C. 436. But if the instrument ought not to be used, it is against conscience for the party holding it to retain it, as he can only retain it for some sinister purpose ; and in the case of a negotiable instrument it may be used for a fraudulent [129] • r )2 DEMURRERS. [CHAP. II. of mistake the courts of equity have also frequently interfered in a variety of instances, and particularly [130] in the cases of defective securities for money (y), and of marriage settlements founded on previous articles, where the settlement has been contrary to the evident intention of the parties in the articles (z) . The courts of equity will interfere upon the same grounds to relieve against instruments which destroy, as well as against instruments which create, rights ; and therefore will prevent a release which has been fraudulently or improperly obtained from being made a defence in an action at law. And where a fine and non-claim were set up as a bar to an ejectment by an heir at law, who had filed a bill in equity before the time had run on the fine, for discovery of title deeds, and for other purposes, with a view to try his title at law, the house of lords upon an appeal re- strained the setting up the fine {a) . In many cases of accident, as lapse of time, the courts of equity purpose, to the injury of a (y) Sims v. TJrry, 2 Ca. in third person. See Bromley v. Chan. 225 ; S. C. Rep. temp. Holland, Coop. R. 9 ; 11 Yes. Finch, 413, and 2 Freem. 16 ; 535; 1/ Yes. 112; 1 Ves. & Burgh v. Francis, 1 Eq. Ca. Bea. 214; Wynne v. Callandar, Ab. 320 ; Taylor v. Wheeler, 2 1 Russ. R. 293 ; and see 2 Vera. 564 ; Jennings v. Moore, Swanst. 157, note, where the 2 Vera. 609 ; Bothomly v. Lord leading authorities on this sub- Fairfax, 1 P. Wins. 334. ject are collected. Of a forged {£) On this subject, see instrument the court ought to Randall v. Willis, 5 Ves. 262 ; take the custody ; and in such a Taggart v. Taggart, 1 Sch. & case the instrument has been Lefr. 84 ; Blackburn v. Stables, generally ordered to be de- 2 Ves. & Bea. 367; 1 Turn. R. posited with an officer of the 52. court. Bishop of Winchester (a) Pincke v. Thornycroft, v. Fournier, 2 Ves. 445, and 1 Bro. C. C. 289. cases there cited. S. II. P. I.] DEMURRERS. 153 will also relieve against the consequences of the ac- cident in a court of law. Upon this ground they proceed in the common case of a mortgage, where the title of the mortgagee has become absolute at law upon default of payment of the mortgage-money at the time stipulated for payment (/») . As the courts of equity will prevent the unfair use [131] of an advantage in proceeding in a court of ordinary jurisdiction gained by fraud or accident, they will also, if the consequences of the advantage have been actually obtained, restore the injured party to his rights. Upon this ground there are many instances of bills to prevent the effect of a judgment at law, and to obtain relief in equity where it was impossible by any means to have the matter properly investi- gated in a court of law ; or where the matter might be so investigated, to bring it again into a course of trial (c). Bills of the latter description, or (as they are usually called) bills for a new trial, have not been of late years much countenanced. In general, it has been considered that the ground for a bill to obtain a new trial after judgment in an action at law must be such as would be ground for a bill of review of a decree in a court of equity upon discovery of new matter (d) ; and therefore where judgment has been (4) Sec 7 Ves. 2/3 ; 2 Sch. S. C. ib. 419 ; 1 Eq. Ca. Ab. & Lefr. 685. 377, 378 ; Countess of Gains- (c) Curtess v. Smalridge, 1 borough v. Gifford, 2 P. Wins. Ua. in Cha. -13 ; 3 C. Rep. 17; 424; Hankey v. Vernon, 2 Robinson v. Bell, 2 Vera. 146 ; Cox's R. 12 ; 2 Yes. J. 135. Thomas v. Gyles, 2 Vera. 232; (7/) 1 Ca. in Cha. 43. Tilly v. Wharton, 2 Vera. 378; 154 DEMURRERS. [CHAP. II. obtained against one underwriter on a policy of in- surance, a point of law being adjudged on a case reserved in favour of tbe plaintiff at law ; and after- wards in other actions on the same policy, against other underwriters, judgment was given for the de- fendants on the same point, the first judgment being deemed to have been clearly erroneous ; a demurrer [132] was allowed to a bill brought by the defendant in the first action for a new trial. No new matter of fact had been discovered ; and if this bill had been sustained, a similar bill might have been filed, when- ever a court of law had pronounced an erroneous judgment which could not be reversed by a writ of error (e) . So if the defendant in an action at law submits to go to trial without filing a bill in equity for a discovery of evidence, and after verdict against him attempts to obtain that discovery as a ground for a new trial, the court of equity will not countenance such a proceeding when there is no fraud in the conduct of the plaintiff at law (/) (1). Cases of oppression, where a man has taken ad- vantage of the situation of another to obtain from him an unreasonable contract, have been the sub- (e) Gibson v. Bell on demur- in Chan. 9 Dec. 1/86, on cause rer, 30 July, 1800, in Chan. shown against dissolving in- (/) Richards v. Symes, 2 junction. See Field v. Beau- Atk. 319; Williams v. Lee, 3 mont, 2 Swanst. 204. Atk. 223; Manning v. Mestaer, ( 1 ) A bill to set aside a verdict is not sustainable, where the facts on which the bill is founded, though discovered since the trial, might have been established at the trial, upon cross exami- nation. Taylor v. Sheppard, 1 Y. & C. Eq. Ex. Ca. 2/1. S. II. P.I.] DEMURRERS. 155 jects of relief on the same ground (g) ; and in some cases the courts of equity have rescinded improper contracts on the grounds of general policy, and to prevent a puhlic inconvenience, as in the case of securities given for marriage-brokage (h), or for the obtaining of public offices, or employments (/'). If a bill for any of these purposes does not show [133] a sufficient ground for a court of equity to interfere, the defendant may demur for want of matter of equity in the plaintiff's case to support the jurisdic- tion of the court. And the courts of equity will thus restrain and relieve against the effect of proceedings in other courts in such cases only as concern mere civil rights ; and therefore if a bill is brought for relief against a proceeding at law upon a criminal prosecution, as an indictment, or information, or a mandatory writ, as a writ of prohibition, a manda- mus, or any writ which is mandatory and not reme- dial, the defendant may demur (/:). 3. The principles of law which guide the decisions ^ t ° 8 f° f ^ e . of the courts of ordinary jurisdiction, and especially nouegV ° ugl . . rights (I). the courts of common law, were principally formed in times when the necessities of men were few, and their (g) Bosanquett v .Dashwood, (i) Law v. Law, 3 P. Wms. Ca. t. Talb. 38; Osmond v. 391; Whittingham v. Bour- Fitzroy, 3 P. Wms. 131 ; Cooke goyne,3 Anstr. 900; Harming- v. Clay worth, 18 Ves. 12 , G ton v. Du Chatel, 1 Bro. C. C. Madd. 109. 124 ; S.C.2 Swanst. 159, note. (h) Smith v. Bruning, 2 (k) Lord Montague v. Dud- Vern. 392 ; 3 P. Wms. 39 1 ; man, 2 Ves. 39G ; 1 Eq. Ca. Williamson v. Gihon, 2 Sch. & Ab. 131 ; and see 18 Ves. 220. Left. 357. (1) See note (1) to page 132. ] 5G DEMURRERS. [ClIAP. II. ingenuity was little exercised to supply their wants. Hence it has happened that, according to the prin- ciples of natural and universal justice, there are many rights for injuries to which the law, as administered by those courts, has provided no remedy. This is particularly the case in matters of trust and confi- dence, of which the ordinary courts, taking in a variety of instances no cognizance, and the positive law being silent on the subject, the courts of equity, considering the conscience of the party entrusted as bound to perform the trust, have interfered to compel the performance. And it has long been settled, that where trustees are desirous of acting under the direc- T134] tion and protection of a court of equity, they may file a bill for those purposes against the persons in- terested in the trust property (/). And in many other cases where the positive law has been silent, and there are rights in conscience for injuries to which the ordinary courts afford no remedy, the courts of equity have also interfered ; enforcing the principles of universal justice upon the ground of obligation on the conscience of the party against whom they are enforced (m). To support a bill in any of these cases, it is necessary for the plaintiff to show that the subject of the suit is such upon which a court of equity will assume jurisdiction ; and if he fails to do so, the defendant may demur. hmdimentato ^' Courts of equity in many cases will act as an- (/) Leech v. Leech, 1 Ca. in 3 & 4 \V. and M. c. 14, courts Cha. 249. And see Fielden v. of equity made an heir respon- Fielden, 1 Sim. & Stu. 255. sible to creditors for the value (m) It is said, 1 P. Wms. 777 , of assets which he had alieued. that before the statute of the S. II. P. I.] DEMURRERS. 157 ciliary to the administration of justice in other courts, jft^jjijgjj" by removing impediments to the fair decision of a question. Thus, if an ejectment is brought to try a right to land in a court of common law, a court of equity will restrain the party in possession from setting up any title which may prevent the fair trial of the right ; as a term for years, or other in- terest in a trustee, lessee, or mortgagee (w) (1). But this will not be done in every case ; for as the court proceeds upon the principle that the party in pos- session ought not in conscience to use an accidental [135] advantage to protect his possession against a real right in his adversary, if there is any circumstance which meets the reasoning upon this principle, the court will not interfere. Therefore, if the possessor 00 (i Yes. 89; 1 Sell. & 1 Madd. R. 189; Barney v. Lefr. 429; and see 13 Ves. Luckett, 1 Sim. & Stu. 419; 298 ; Armitage v. Wadsworth, Northey v. Pearce, ib. 420. (1) If a bill to prevent the setting up of outstanding terms of Allegation that ■ years does not state that there are such terms, but merely threatens to set alleges that the defendant threatens to set up some outstanding "tending terms. satisfied terms of years, or some other legal estate or interest in the premises, it is demurrable. For an outstanding legal estate may be such as to make it impossible for the plaintiff to recover in ejectment : as if the legal fee was not vested in the testator, where tbe plaintiff claims by devise. Stansbury v. Arkwr/ght, G Sim. 481. But if the bill alleges that there are some outstand- ing terms, which, if set up by way of defence, would defeat the ejectment, and that the defendant threatens to set up those terms, such an allegation is sufficient. Baker v. Ilarwood, 7 Sim. 373. In a bill to restrain the setting up of outstanding terms in Positive averment o . . of title in a bill to ejectment, a positive averment of an absolute and indefeasible restrain the set- ... , • . .~, j „, • • »« ting up of out- title in the plaintiff, as a devisee, is sufficient, notwithstanding the standing terms. bill only alleges that the devisor " being or claiming to be seised or otherwise well entitled," devised the estate to the plaintiff. Houghton v. Reynolds, 2 Hare, 264. 158 DEMURRERS. [CHAP. II. is a purchaser for a valuable consideration without notice of the title of the claimant, this is a title in conscience equal to that of the claimant, and the court will not restrain the possessor from using any advantage he may be able to gain to defend his pos- session (o). It can hardly appear upon the face of a bill that the defendant is in such a situation, and therefore the benefit of this defence must generally be taken by plea : but if the case should be so stated, the defendant might demur; because the case stated would appear to be such in which a court of equity ought not to assume jurisdiction. If the matter suggested in a bill as an impediment to the determination of a question in a court of ordinary jurisdiction in fact is not so, the defendant may also demur ; for then there is no pretence for the inter- ference of a court of equity. 5. To preserve 5. Pending; a litigation the property in dispute is property pending " m. ± j m. litigation. often in danger of being lost or injured, and in such cases a court of equity will interpose to preserve it, if the powers of the court in which the litigation is depending are insufficient for the purpose (1). Thus during a suit in an ecclesiastical court for admi- nistration of the effects of a person dead, a court of equity will entertain a suit for the mere preservation [136] of the property of the deceased till the litigation is determined, although the ecclesiastical court, by granting an administration pendente lite, will provide for the collection of the effects (//). And, pending (o) See 2 Ves. Jun. 457, 458 ; 567 ; 8. C. 10 Ves. 246. Maundrell v. Maundrell, 7 Ves. (p) King v. King, 6 Ves. 1 72 ; (1) See note (1) to page 132. S. II. P. I] DEMURRERS. 159 an ejectment in a court of common law, a court of equity will restrain the tenant in possession from committing waste, by felling timber, ploughing ancient meadow, or otherwise (y) . Against this inconvenience a remedy at the common law was in many cases pro- vided during the pendency of a real action by the writ of estrepement (r) ; and when the proceeding by ejectment became the usual mode of trying a title to land, as the writ of estrepement did not apply to the case, the courts of equity, proceeding on the same principles, supplied the defect. But, in general, if the court in which the suit is depending can itself provide for the safety of the property, a demurrer will hold. The interference to preserve the effects of a person dead pending a litigation in the ecclesiastical court, touching the administration of those effects, scarcely forms an ex- ception to this rule ; for the protection afforded by an administration pendente lite has been often a very insufficient protection ; and in the administration of personal effects the courts of equity have assumed a concurrent jurisdiction with the ecclesiastical courts, and for many purposes have a much more effectual [137] jurisdiction, particularly for payment of creditors, and concluding all parties by the judgment of the court in the distribution of the effects, and preserving the Richards v. Chave, 12 Ves. 462; v. Frost, 3 Madd. 1 ; S. C. 1 Edmundsv. Bird, 1 Ves. & Bea. Jac. R. 466 ; (i Madd. 49, 105. 542 ; Atkinson v. Henshaiv, (q) PuJteney v. She/ton, 5 2 Ves. &B. 85; Bally. Oliver, Ves. 260, note; Lathropp v. 2 Ves. & B. 9G ; Rutherford Marsh, 5 Ves. 259 ; and see v. Douglas, rep. I Sim. & Stu. Onslow v. , l(i Ves. 173. Ill, n; 3 Meriv. 174 ; Jones (r) F. N. B. 60. 100 DEMURRERS. [Chap. II. 5. To prevent the assertion of a doubtful right in ■ manner pro- ductive of irre- parable da- mage (1) : as in cases of waste, and in- fringement of copyrights and patents. surplus for the benefit of those who may finally ap- pear to be entitled to it. 6. Doubts have been suggested how far a court of equity ought to interfere to prevent injury arising to property pending a suit founded on trespass. This doubt, it should seem, ought to be confined to cases of mere trespass, and where the injury done is not pro- bably irreparable (s) . But when a doubtful right has been asserted in a manner productive of irreparable injury, the courts have interfered. Therefore, where the tenants of a manor, claiming a right of estovers, cut down a great quantity of growing timber of great value, their title being doubtful, the court of chancery entertained a bill at the suit of the lord of the manor to restrain this assertion of it (I) ; and indeed the commission of waste of every kind, as the cutting of timber, pulling down of houses, ploughing of ancient pasture, working of mines, and the like, is a very frequent ground for the exercise of the jurisdiction of courts of equity, by restraining the waste till the rights of the parties are determined. The courts of equity have also extended their relief to restrain the owner of a mine from working minerals in the ad- joining land of another, though a mere trespass under the cover of a right (//) . (s) Hanson v. Gardiner, 7 Ves. 305; 10 Ves. 291 ; 17 Ves. 110, 281 ; 1 Swanst. 208, 210. See above, 136, note (w). (t) Stonor v. Sf range, Mich. 1/67, and Stonor v. Whiting, Hil. 1768, in Chan. 1 Sch. & Lefr. 8. (u) Mitchell v. Dors, 6 Ves. 147; 7 Ves. 308; Thomas v. Oakley, 18 A r es. 184. (1) See note (1) to p. 132. S. II. P. I.] DEMURRERS. 161 The courts of equity seem to have proceeded upon [138] a similar principle in the very common cases of per- sons claiming copy-right of printed books (1), and of patentees of alleged inventions (2), in restraining the publication of the book at the suit of the owner of the copy, and the use of the supposed invention at the suit of the patentees. But in both these cases the bill usually seeks an account; in one, of the books printed, and in the other, of the profit arisen from the use of the invention : and in all the cases alluded to it is frequently, if not constantly, made a part of the prayer of the bill that the right, if disputed, and capable of trial in a court of common law, may be there tried and determined under the direction of the court of equh^; the final object of the bill being a perpetual injunction to restrain the infringement of the right claimed by the plaintiff (x) . (x) On the subject of copy- 17 Ves. 422 ; Southey v. Sher- right, see Hogg v. Kirby, 8 Ves. wood, 2 Meriv. 435 ; Lord and 215; Longman x. Winchester, Lady Percivalv. P/iij)ps,2Yes. 16 Ves. 269; Wilkinsv. Aihin, & Bea. 19; Gee v. Prit chard, (1) Where a person seeks to restrain an infringement of his Not necessary t u . . . r ° specify pirated copyright, it is not necessary for him to specify, either in his bill passages. or in his affidavit, the parts of the defendant's work which have been taken from his work ; but it is sufficient to allege generally, that parts of the defendant's work have been pirated from the plaintiff's work. For the pirated passages are pointed out by counsel when the injunction is moved for. Sweet v. Maugham, 11 Sim. 51. (2) In a bill to restrain the infringement of a patent, it is not Allegations i„ . necessary to set forth a full statement of the specification enrolled **&££&. m respect of the letters patent. If the plaintiff by bis bill refers PRtent- to the specification, and alleges that he has done all that was required of him, the court on demurrer will give credit to the allegation. Westhead v. Keene, 8 Law J. (N. S.) Ch. Rep. 89. M 162 DEMURRERS. [ChAP. II. In all cases of waste committed on lands or tene- ments, the courts of equity originally proceeded by analogy to the provisions of the old common law, by which tenant by the courtesy and in dower ansAvered only for the value of the waste done, and a custos was assigned to prevent further waste. The statute of Marlebridge, 52 H. III. c. 23, added a fine for the offence to full damage for the injury done; and after- [139] wards the statute of Gloucester, 6 Edw. I. c. 5, gave treble damages, and the forfeiture of the place wasted by tenant by the courtesy, for life, or for years. The forfeiture by waste, and all penalties, ought to be waived in a bill for restraining waste (y) , the courts of equity declining to compel a discovery which may subject a defendant to any penalty or forfeiture, and confining the relief given to compensation for the damage done, and restraining future injury. So at law the person entitled to the benefit of forfeiture for waste might waive the action for waste, and maintain an action of trover for trees felled by a tenant im- peachable for waste (z). With respect to copyholds, the courts appear, in some instances, to have refused to restrain waste, and left the lord to his legal remedy by forfeiture (a) . 2 Swanst. 402 ; Rundell v. Mur- (y) 1 Atk. 451. ray, 1 Jac. R. 311 ; Lawrence (z) Berry v. Heard, Cro. v. Smith, 1 Jac. R. 471 ; Bar- Car. 242. fehl\. Nicholson, 2 Sim. & Stu. (a) Bench v. Bampton, 4 1 ; on that of patents, see Har- Ves. 700. In a cause, however, mer v. Plane, 14 Ves. 130 ; of Richards v. Noble, before Canham v. Jones, 2 Ves. & Bea. Lord Ershne, when Chancellor, 248 ; Hill v. Thompson, 3 Me- now reported in 3 Meriv. 673, riv. C22. this decision was overruled. S. II. P. I.] DEMURRERS. 163 The rights of the lord and tenant of copyholds de- pending on the custom of each manor, it has per- haps been thought that the lord is not entitled to that protection which is given to rights ascertained by the common law of the land, and that he has generally the remedy in his own hands. Upon a lease of land in Ireland for lives, renewable for ever, the courts of equity there have declined restraining waste not specially provided for by the terms of the lease (b) . But in the case of waste the courts of equity have [140] in many instances given remedies where the common law has provided none. Thus in the case of co- parceners (c) and tenants in common (d), the court has interfered to prevent the destruction of the pro- perty by one coparcener, or one tenant in common, to the injury of the rest (e). So where tenant for life not impeachable for waste has proceeded to destruction of a mansion-house (/'), or to cut down ornamental trees, or trees necessary for the protection of a mansion, or young saplings (g). In these cases it should seem that the courts have proceeded on the ground that the acts done were an unconscientious use of the powers given to the particular tenant, and in some instances, perhaps, partaking of the (b) Calvert v. Gason, 2 Sch. (/) Fane v. Lord Barnard, & Lefr. 561. 2 Vern. 738. (c) Beammmd and Sharp, (y) Abraham v. Bitbb, 2 May!), 1751. Freem. 53; Chamber) 'i/ne v. (d) Hole v. Thomas, 7 Ves. Dummer, 1 Bro. C. C. l(i(i, 589; Twort v. Twort, 16 Ves. and cases there cited; and see 128. above, p. 137, note (?/). (e) 7 Ves. 590; 16 Ves. 131. m2 104 DEMURRERS. [CHAP. II. nature of mere malicious mischief (h). It has been much doubted whether in some instances this relief has not been carried to an extent which may be found productive of great inconvenience, and per- haps injustice, if the decisions should be implicitly followed (i). Where persons were bound by covenant to keep the banks of a river in repair, and by their acts in contravention of the covenant great injury was [141] likely to arise, a court of equity has interfered by injunction (A). In all the cases in which the interference of a court of equity is thus sought, if the bill should not clearly show the title of the plaintiff, or his right to demand the assistance of the court in his favour, or that the case is one to which the court will apply the remedy sought, the defendant may demur. 7. to compel two 7 < ft } ias been mentioned (/) that where two or claimants to in- v J more persons claim the same thing by different titles, and another person is in danger of injury from igno- rance of the real title to the subject in dispute, courts of equity will assume a jurisdiction to protect him ; and that the bill exhibited for this purpose is termed a bill of interpleader, the object of it being to compel the claimants to interplead, so that the court may adjudge to whom the property belongs, and the plaintiff may be indemnified (1). The principles (h) 2 Freem. 278; Bishop (k) Lord Kihnorey v . Thack- of London v. Web, 1 P. Wms. eray, cited 2 Brown, C. C. 65. 527. (0 See above, p. 58. (i) See 16 Yes. 185. (1) See note (1) to p. 132. S. II. P. I] DEMURRERS. 165 upon which the courts of equity proceed in these cases are similar to those by which the courts of law are guided in the case of bailment; the courts of law compelling interpleader between persons claiming property, for the indemnity of a third person in whose hands the property is, in certain cases only ; as where the property has been bailed to the third person by both claimants, or by those under whom both make title ; or where the property came to the hands of the third person by accident ; and the courts of equity extending the remedy to all cases to which in conscience it ought to extend, whether any suit [142] has been commenced by any claimant, or only a claim made {m). This remedy has been applied to the case of tenants of lands charged with annuities, and liable to distress by their landlord, and the claimants of annuities (;/), and to other cases of disputed titles (o) , in wdiich the tenants have been permitted to pay their rents into court (p). (>n) It may here be noticed, and others, 28 Feb. 1/85; that if at the hearing the ques- Aldridye v. Thompson, 2 Bro. tion between the defendants be C. C. 150; Lord Thomond''s ripe for decision, this court will Case, cited 9 Ves. 107 ; Angell make a decree ; and that if such v. Hadden, 15 Ves. 2-14 ; S. C. be not the case, it will direct 16 Ves. 202. an action, an issue, or a refer- (o) Wood v. Kay and wife ence to a Master, in order to and others, 19 Dec. 1/86; 2 bring the matter to a determi- Ves. Jun. 312; 16 Ves. 203, nation. See Duke of Bolton 201. v. Williams, 2 Ves. Jun. 138; (p) It is however observable, iS. C. 4 Bro. C. C. 297 ; Angell that in such cases the court v. Hadden, 16 Ves. 202. interferes on the ground of (») Surry and others, tenants privity having been created hy of Lord Waltham, against Faux the act of the landlord between 166 DEMURRERS. [CHAP. II. If a bill of interpleader does not show that each of the defendants whom it seeks to compel to interplead claims a right, both the defendants may demur ; one, because the bill shows no claim of right in him ; the other, because the bill, showing no claim of right in the co-defendant, shows no cause of interpleader (q). Or if the plaintiff shows no right to compel the de- fendants to interplead, whatever rights they may [143] claim, each defendant may demur (r). A bill of this nature is also liable to a peculiar cause of demurrer ; for as the court will not permit such a bill to be brought in collusion with either claimant, the plaintiff", as has been already mentioned, is required to annex to his bill an affidavit that it is not exhibited in col- lusion with any of the parties, to induce the court to entertain jurisdiction of the suit; and the want of that affidavit is therefore a ground of demurrer (s) (1). his tenant and the other claim- 2 Ves. Jim. 304 ; 2 Anstr. 532 ; ant. See Cowtan v. Williams, Johnson v. Atkinson, 3 Anstr. 9 Ves. 107; Clarke v. Byne, 798; or, an agent against his 12 Ves. 383; E. I. Cowp. v. principal and a third person, Edwards, 18 Ves. 376. Nicholson v. Knowles, 5 Madd. (q) 1 Ves. 249. 47 ; or, a debtor against his cre- (r) As, for example, if a ditor become a bankrupt, and tenant were to file such a bill the assignees of the latter, Har- against his landlord, and a per- low v. Crowley, 1 Buck, B. C. son with whom he himself has 273, and Lowndes v. Cornford, no privity, but who claims by a 18 Ves. 299; S. C. 1 Rose, title adverse to that of the B. C. 180. landlord. Dungey v. Anyove, (s) Metcalf v. Harvey, 1 Affidavit as to (1) Where a bill of interpleader is filed by the officer of a collusion. iiir.pi i i»- i • company on behalf of the company, the affidavit annexed ought to state, not that the secretary, who is the mere nominal plaintiff, does not collude, but that, to the best of his knowledge and S. II. P. I.] DEMURRERS. 167 A l)ili of this nature generally prays an injunction to restrain the proceedings of the claimants in some other court ; and as this may be used to delay the pay- ment of money by the plaintiff, if any is due from him, he ought by this bill to offer to pay the money due into court (t) (1). If he does not do so, it is perhaps in strictness a ground of demurrer (2). 8. In many cases the courts of ordinary iurisdic- s. Toputa bound •* J ° to litigation ; tion admit, at least for a certain time, of repeated attempts to litigate the same question. To put an end to the oppression occasioned by the abuse of this [144] privilege, the courts of equity have assumed a jurisdic- tion (u) (3). Thus, actions of ejectment having be- as in the case of actions of eject- come the usual mode of trying titles at the common Inent law, and judgments in those actions not being in any degree conclusive, the courts of equity have inter- fered ; and, after repeated trials, and satisfactory determinations of questions, have granted perpetual Ves. 248 ; and see 2 Ves. & there might be a case in which Bea. 410.. a demurrer would be prevented (t) Lord Thanet v. Patter- by the money being brought son, 3 Barnard, 247; 2 Ves. into court. See 19 Ves. 323. Jun. 108, 109. It seems that (») 2 Sch. & Lefr. 211. belief, the society, who are the real plaintiffs, do not collude with the defendants. BUjnold v. Audlund, 1 1 Sim. 23. (1) Where a bill of interpleader is filed respecting a sum of offer to pay in- money on which interest is payable at law, under the stat. 3 & 4 terest ' W. IV. c. 42, s. 8, (as in the case of a sum insured,) the plaintiff ought to offer by his bill to pay the interest. Bignold v. Aud- land, 1 1 Sim. 23. (2) A bill of interpleader is not demurrable on account of its offer to pay not offering to pay the money claimed into court. But it is said money 1,lto eourt - that the plaintiff must bring it in before he takes any step in the cause. Mevx v. Bell, 6 Sim. 175. (3) See note (1) to p. 132. 108 DEMURRERS. [CHAP. II. injunctions to restrain further litigation (x), and thus have in some degree put that restraint upon litigation which is the policy of the common law in the case of real actions (3/). Nuisaneei. Upon the same principle (z) the courts of equity- seem to have interfered in cases as well of private as of public nuisance (1) ; in the first, at the suit of the party injured (a) ; in the second, at the suit of the attorney-general (b) ; restraining the exercise of the nuisance where the proceedings at law are inef- fectual for the purpose, and preventing the creation of a nuisance where irreparable injury to indivi- duals, or great public injury would ensue (c). In the case of a private nuisance it seems necessary that a judgment at law, ascertaining the rights of [145] the parties, should have been previously obtained (d). On informations by the attorney-general on behalf of the crown the court of exchequer has proceeded to the abatement of nuisances injurious to the royal prerogative, such as nuisances in harbours, or even trespasses on the public rights of the crown without any nuisance (e) . If a trespass is made on the soil (x) Earl of Bath v. Sherwiu, (a) See Ryder v.Bentham, 1 Prec. in Chan. 261; S. C. Ves. 543; Att. Gen. x.Nicholl, 4 Brown, P. C. 373, Toral. Ed. 16 Ves. 338 ; S.C. 3 Mer. 687. Leiffhtonv.Leiffhton, 1 P.Wms. (b) See Anon. 3 Atk. 750 ; 671 ; S. C. 4 Bro. P. C. 378, S. C. named Baines v. Baker, Toml. Ed. And see Anon. Ambl. 158; Att. Gen. v. Clea- Gilb. Eq. R. 183 ; S. C. 2 Eq. ver, 18 Ves. 211. Abr. 172; Barefoot v. Fry, (c) 16 Ves. 342. Bunb. 158; 2 Sch. & Lefr. 21 1. (d) 19 Ves. 622 ; Chalk v. (y) Strange, 404. Wyatt, 3 Meriv. 688 ; Wyn- (z) See Dick. 164; 16 Ves. Stanley v. Lee, 2 Swanst. 333. 342 ; 19 Ves. 622. (e) Att. Gen. v. Forbes, Ex. (1) See note (1) to p. 132, supra. S. II. P. I.] DEMURRERS. 16!! of the crown, whether reserved for the private use of the sovereign, or for public purposes, and the trespass does not produce a public injury, the juris- diction may be founded on the right of the crown to have the land arrentcd, and the profit accounted for as part of the royal revenue, in the nature of an assart ; and if the trespass produces, or may in its consequences produce, public injury, the crown is entitled to the most effectual means of preventing the injury (/). Courts of equity will also prevent multiplicity of suits ; and the cases in which it is attempted, and the means used for that purpose, are various (1). With L G ,*S' Sintt . Tii'ii'-i'j scve™ 1 persons. this view, where one general legal right is claimed against several distinct persons, a bill may be brought to establish the right (g). Thus where a right of fishery was claimed by a corporation throughout the course of a considerable river, and was opposed by the lords of manors and owners of land adjoining, [140] a bill was entertained to establish the right against the ^ft, 2(^ \2t&. several opponents, and a demurrer was over-ruled (h). As the object of such bills is to prevent multipli- city of suits by determining the rights of the parties upon issues directed by the court, if necessary for its information, instead of suffering the parties to be harassed by a number of separate suits, in which Trin. 1795 ; Hale de Jure Maris, Corporation of Carlisle v. U'il- p. 1, c. 4, p. 13; Churchman son, 13 Ves. 2/G ; Duke ofXor- v.Tunstal, Ilardr. 162; Aft. folk v. Myers, 4 Madd. 83; Gen. v. Richards, Anstr. G03. 1 Jac. & W. 369. (/) IS Ves. 218. (A) Mayor of York v. Pi/k- (ff) 2 Atk. 484; 11 Ves. 441 ; inyton, 1 Atk. 282. See note (1) to p. 132, supra. J 70 DEMURRERS. [ChAP. II. each suit would only determine the particular right in question between the plaintiff and defendant in it, such a bill can scarcely be sustained where a right is disputed between two persons only, until the right has been tried and decided upon at law (i). Indeed in most cases it is held that the plaintiff ought to establish his right by a determination of a court of law in his favour before he files his bill in equity (k) • and if he has not so done, and the right he claims has not the sanction of long posses- sion (/) , and he has any means of trying the matter at law (m), a demurrer will hold. If he has not been actually interrupted or dispossessed, so that he has had no opportunity of trying his right, he may bring a bill to establish it though he has not previously recovered in affirmance of it at law, and in such a case a demurrer has been over-ruled (»). [147] It is not necessary to establish a right at law be- fore filing a bill where the right appears on record, as under letters patent for a new invention, in which case a demurrer to a bill for an injunction to restrain an infringement of the patent right has been over- ruled (0) . So in the cases of bills brought by authors or their assignees to restrain the sale of books where (i) Lord Teynham v. Her- (n) 1 Atk. 284. And see bert, 2 Atk. 483. Dukeof Dorset v. Girdler, Prec. (k) 1 Atk. 284 ; Anon. 2 Ves. in Chan. 531 . But see Welby 414; 2 Sch. & Left. 208; 11 v. Duke of Rutland, 2 Bro. Ves. 444; 1 Jac. & W. 369. P. C. 39, Toml. Ed.; 2 Sch. (I) Bush v. Western, Prec. & Lefr. 209. in Chan. 530. (o) Horton and Maltby, in O) Whitchurch v. Hide, Chan. 23 July, 1783; 3 Meriv. 2 Atk. 391 ; Wells v. Smeaton, 624. in Chan. 27 May, 1784. S. II. P. I.] DEMURRERS. 171 the right which is the foundation of the bill is grounded on an act of parliament (/;)• And where a right appeared on record by a former decree of the court, it was determined that it was not neces- sary to establish it at law before filing a bill ( and of trust, and gave him an indemnity in respect thereof, still, if the other co-plaintiffs are infants, and the objection is not taken until the hearing, it will be overruled. Wilkinson v. Parry, 4 Boss. 2/2. (1) An uncertificated bankrupt cannot call on his assignees for ^a^t^tank" a general account of all their transactions, which he might have """P. 1 against his o ° assignees. by applying to the court of bankruptcy. Tnrleton v. Hornby, 1 Y. & C. Eq. Ex. 172. But if the assignees of a bankrupt fraudulently and collusively ^ ^y^"^ sell his estate while he is proceeding to get his commission super- assignees and a 00 l purchaser from seded, he may file a bill against them and the purchaser, to them, set aside the sale, on the ground of fraud and collusion, if the purchaser has not come in under the commission, so that the court of review has no jurisdiction over him, and if the bankrupt has settled with all his creditors, and they have consented to the commission being superseded. Lautourx. Holcombe, 8 Sim. 76. And a bill by an insolvent to set aside an assignment by bis I,il1 °y an insoi- assignee of his interest under a will, on the ground of a special case of collusion between his assignees and the executors, is not demurrable. Burton v. Jayne, 7 Sim. 24. The counsel for the insolvent, in this case, urged that the collusion, and the fact that the Insolvent Debtors' Court had no power to set aside deeds, were sufficient to maintain the bill. (2) This disability was abolished by the stat. 10 Geo. IV. c. 7, s. 23. n2 180 DEMURRERS. [CHAP. II. the grant of the rent-charge being therefore utterly void. And where a plaintiff claimed under a will, and it was apparent upon the construction of the will that he had no title, a demurrer was allowed (p). But in this case it was said, that if upon arguing the demurrer the court had not been satisfied, and had been therefore desirous that the matter should be more fully debated at a deliberate hearing (p), the demurrer would have been over-ruled without prejudice to the defendant's insisting on the same [155] matter by way of answer (q), which indeed it should seem may in all cases be done without the special declaration of the court, that the over-ruling of the demurrer shall be without prejudice. Though the plaintiff in a bill may have an interest in the subject, yet if he has not a proper title to in- stitute a suit concerning it, a demurrer will hold (r) (1) . (o) Brownsword v. Edwards, cause in the ordinary course ; 2 Yes. 243. See also Beech v. and the difference in expense Crull, Prec. in Chan. 589; Par- to the parties may be consider- her v. Fearnley, 2 Sim. & Stu. able. See above, p. 130, note 592. 0). (p) Perhaps this declaration (q) 2 Ves. 247. fell from the court rather in- (r) It seems the plaintiff must cautiously ; as a dry question distinctly show a title in equity ; upon the construction of a will for, where one stated a title may be as deliberately deter- either at law or in equity a de- mined upon argument of a de- murrer was allowed. Edwards murrer as at the hearing of a v. Edwards, 1 Jac. 11. 335. Consent of ere- (1) See note (1), p. 179. The clause in the Insolvent Debtors ditors to a suit . _ __ T . . by assignees of an Act, 1 (jco. IV. c. 1 1 9, s. 11, requiring the consent of the major part in value of the creditors to the institution of a suit, was in- serted for the benefit of the creditors alone ; so that the want of such consent cannot be urged as an objection by a defendant in a or bankrupt. suit by the assignees. Piercy v. Roberts, 1 M. & K. 4. And S. II. P. I.] DEMURRERS. 181 Therefore, where persons who had obtained letters of administration of the estate of an intestate in a foreign court, on that ground filed a bill seeking an account of the estate, a demurrer was allowed (s), because the plaintiffs did not show by their bill a complete title to institute a suit concerning the sub- ject ; for though they might have a right to adminis- tration in the proper ecclesiastical court in England, and might therefore really have an interest in the thing demanded by their bill, yet, not showing that they had obtained such administration, they did not show a complete title to institute their suit (1). And where an executor does not appear by his bill to have proved the will of his testator, or appears to have (*) Tourton v. Flower, 3 P.Wms. 369. the same is the case with regard to suits by the assignees of bank- rupts. Gerothwohl v. Cochrane, 5 Law J. (N. S.) 47, M. R. Where a person files a bill against the directors of an unincor- Necessity lor porated joint-stock company, in respect of a fraud committed by plaintiff's shov- them on the shareholders ; and by the rules of the company, as stated in tbc bill itself, no transfer of shares is to be valid, unless the purchaser shall have been approved of by a board of directors, and shall have executed a proper instrument binding himself to the observance of the regulations of the company ; and the plaintiff in such bill alleges that he purchased and is the holder of shares, but he does not set forth his title as purchaser, or state that he had complied with the condition precedent above mentioned; the bill is demurrable on that account. Wulburn v. Ingilby, 1 M. & K. 61. (1) Although a prerogative administration must be obtained want of a pre- before money can be paid out of court, and in Young v. Elworthy, traSon'nWhe 1 "^ 1 M. & K. 215, Sir John Leach held that it was necessary to p,aintiff ' produce a prerogative administration before the decree can be drawn up ; yet a suit may be commenced without such an admi- nistration, and cannot be stopped by demurrer on account of that circumstance. Metcalfe v. Metcalfe, 1 Keen, 74. 182 DEMURRERS. [CHAP. II. proved it in an improper (t) or insufficient (w) court, as he does not show a complete title to sue as exe- cutor, a demurrer will hold. Want of interest in the subject of a suit, or of a title to institute it, are objections to a bill seeking any kind of relief, or filed for the purpose of dis- [156] covery merely. Thus, though there are few cases in which a man is not entitled to perpetuate the testi- mony of witnesses, yet if upon the face of the bill the plaintiff appears to have no certain right to or interest in the matter to which he craves leave to examine, in present or in future {%) , a demurrer will hold. There- fore, where a person claiming as devisee in the will of a person living, but a lunatic, brought a bill to perpetuate the testimony of witnesses to the will against the presumptive heir at law (y) ; and where persons who would have been entitled to the per- sonal estate of a lunatic if he had been then dead in- testate, as his next of kin, supposing him legitimate, brought a bill, in the life-time of the lunatic, to per- petuate the testimony of witnesses to his legitimacy, against the attorney-general as supporting the rights of the crown (z), demurrers w T ere allowed. For the parties in these cases had no interest which could be the subject of a suit ; they sustained no character (t) 3 P. Wms. 371. 234 ; Smith v. Watson,\\\ Chan. (u) Comber's Case, 1 P.Wms. 20 June, 1/60; 2 Prax. Aim. 766. Cur. Cane. 500, where there is (x) Smith v. Att. Gen. in the form of a demurrer Chan. Mich. 1/77; 6 Ves. 260; (*) Smith v. Att. Gen. in Allan v. Allan, 15 Ves. 130. Chan. Mich. 1777; 6 Ves. 256, (y) Sackvill v. Ayleworth, 260 ; 15 Ves. 133, 136. 1 Vera. 105 ; 1 Eq. Ca. Ab. S. II. P. I] DEMURRERS. 183 under which they could afterwards use the deposi- tions (a), and therefore the depositions, if taken, would have been wholly nugatory. So in every case where the plaintiff in a bill shows only the probability of a future title upon an event which may never happen he has no right to institute any suit concerning it ; and a demurrer will hold to LI 57] any kind of bill on that ground, which will extend to any discovery as well as to relief (/>) . If the claim of the plaintiff is of a matter in it- self unlawful, as of money promised to a counsellor at law T for advice and pains in carrying on a suit (c) ; or of money bequeathed by a will to purchase a dukedom (//) ; the defendant may demur to the bill, for the plaintiff not having a lawful claim has no title to sue in a court of justice. There are grounds of demurrer to a bill for a dis- covery merely as well as to a bill for relief. But if a plaintiff shows a complete title, though a litigated one, or one that may be litigated as that of an ad- ministration, where a suit is depending to revoke the administration (e) ; or of an administrator where there may be another personal representative (/') ; a de- murrer will not hold, at least to discovery. For in the first case, till the litigation is determined the (a) See 2 Prax. Aim. Cur. Temp. Finch. 75; and seeMoor Can. 501 ; and see The Earl of v. Rome, 1 Rep. in Cha. 38 ; 2 Belfast v. Chichester, 2 Jac. & Atk. 332. W. 439. (d) Earl of Kingston v. Lath, (o) SackviU v. Ayleworth, Pierepont, 1 \em. 5. Vera. 105 ; 1 Eq. Ca. Ab. 234; (e) Wright v. Blicke, Ibid. Smith v. Att.Gen. Mich. 1777. 106. 0) Penrice v. Parker, Rep. (/) 3 P. Wms. 370. 184 DEMURRERS. [CHAP. II. plaintiff's title is good, and in the second case, the court will not consider the ecclesiastical court as having done wrong. And where a doubtful title only is shown it is necessarily sufficient to support a bill seeking the assistance of the court to preserve pro- perty in dispute pending a litigation. Therefore where ri 581 a su ^ was P en di R g m an ecclesiastical court touching the representation to a person deceased, a demurrer of one of the parties to that suit, who had possessed the personal estate of the deceased, to a bill for an ac- count filed by the other party was over-ruled («•). The ground of this decision seems to have been the deficient powers of the ecclesiastical court for securing the effects whilst the suit there was depending ; and the doubt as to the title of the parties was the very ground of the application to the court, y. wantofpri- V. A plaintiff may have an interest in the subject vjty between the ± J o SSSL™* de * of his suit, and a right to institute a suit concerning it, and yet may have no right to call on a defendant to answer his demand. This may be for want of privity between the plaintiff and defendant. Thus, though an unsatisfied legatee has an interest in the estate of his testator, and a right to have it applied to answer his demands in a due course of administra- tion, yet he has no right to institute a suit against the debtors to his testator's estate for the purpose of compelling them to pay their debts in satisfaction of his legacy (//) . For there is no privity between the (g) Phippsv. Steward,! Atk. v. Harris, 31 Oct. 1780. De- 280. And see Andrews v. murrer over-ruled, 2 Bro. C. C. Poivys, 2 Brown, P. C. 504, 121. Toml. Ed. See also Wills v. (h) Bickly v. Bor ring ton, Ric/i, 2 Atk. 285 ; and Morgan 1 March, 1 730, Rolls, 1 2 Nov. S. II. P. I.] DEMURRERS. 1 &5 legatee and the debtors, who are answerable only to the personal representative of the testator; unless by collusion between the representative and the debtors, or other collateral circumstance, a distinct [159] ground is given for a bill for the legatee against the debtors (//). So a bill filed by the creditors of a per- son who was one of the residuary legatees of a tes- tator, against the executors of the testator, the other residuary legatees, and the executrix of their debtor, was dismissed (/) (1). But where an agent has been employed, his prin- cipal has in many cases a right to a discovery of his transactions, and to demand the property with which he has been intrusted, or the value of it, against those with whom the agent has had deal- ings ; and therefore, where a merchant who had cm- ployed a factor to sell his goods tiled a bill against the persons to whom the goods had been sold, for an account, and to be paid the money for which the goods had been sold, and which had not been paid 1737; Lord Chan, on Appeal, (t) Hlmsley v. M'Aulay, 3 cited Barnard, 32 ; and 6 Yes. Bro. C. C. 624. And see TJtter- 719; Monk v. Pom/ret, cited son v. Mair, Vernon and others, ibid.; Alsager v. Rowley, % Yes. on demurrer, 10 April, 1793, 748 ; and the cases there cited 2 Yes. Jun. 95 ; S. C. 4 Bro. and referred to. 9 Yes. 80". C. C. 270. (/<) 3 Madd. 159. (1) "Where one of two executors was a partner with the tes- Bill by a residuary tator, the residuary legatees may sustain a bill against the execu- C o-e«cutoras a tors for an account of the partnership transactions, although ' lcblor • collusion between them is neither charged nor proved ; for the rule that the legatee cannot sue a debtor to the estate docs not apply to a co-executor who is a debtor to the estate. Cropper v. Knapman, 2 Y. & C. Eq. Ex. 338. 186 DEMURRERS. [Chap. II. [160] VI. Want of in- terest in the de- fendant. to the factor, a demurrer was over-ruled (A). So where a merchant acting upon a commission del credere became bankrupt, having sold goods of his principals for which he had not paid them, and shortly before his bankruptcy drew bills on the ven- dees, which he delivered to some of his creditors to discharge their demands, they knowing his insol- vency, a suit by the principals was maintained against the persons who had received the bills for an account and payment of the produce. But the book-keeper of the bankrupt having been made a party, as one of the persons to whom bills had been so delivered, and having denied that fact by his answer, he was not compelled to answer to the rest of the bill, which, independent of that fact, was, as to him, a mere bill for discovery of evidence (/). VI. The plaintiff must by his bill show some claim of interest in the defendant in the subject of the suit (m) (1), which can make him liable to the plain- tiff's demands, or the defendant may demur (/>). low, Chap. 2, sect. 2, part 3. (m) See Dowlin v. Macdou- gall, 1 Sim. & Stu. 307. 0) 2Eq. Ca. Ab. 78. There are, however, instances in which persons not interested in the subject of dispute, may by their conduct so involve themselves in the transaction relating to it, that they may be held liable to (k) Lisset v. Reave, 2 Atk. 394. (/) Neuman v. Godfrey, 2 Bro.C. C. 332 ; 2 Ves. Jun.457. See Att. Gen. v. Skinners' 1 Comp. 5 Madd. 173, particularly at p. 194. But see Cookson v. Ellison, 2 Bro. C. C. 252, and the other subsequent cases on the neces- sity of answering fully. See be- Aiiegation of (1) A mere allegation that a defendant "claims an interest" terest. in the subject-matter, without showing how or why he so claims, is not sufficient to avoid a demurrer on the ground of a want of interest. Plumbe v. Plumbe, 4 Y. & C. 345. S. II. P. I.] DEMURRERS. Therefore, if a bill is filed to have the benefit of or to impeach an award, and the arbitrators are made parties, they may demur to the whole bill, as well to discovery as relief (o) ; for the plaintiff can have no decree against them, nor can he read their answer against the other defendants. Indeed, where an award has been impeached on the ground of gross misconduct in the arbitrators, and they have been made parties to the suit, the court has gone so far as to order them to pay the costs (p) ; and probably, therefore, in such a case a demurrer to the bill would not have been allowed. A bankrupt made party to a bill against his assignees touching his estate may demur to the relief, all his interest being transferred to his assignees (//) ; but it seems to have been 187 costs ; and under such circum- stances it seems they cannot demur to the bill, it" the frau- dulent or improper conduct be charged, and the costs be pray- ed against them. See 7 Ves. 288 ; 14 Ves. 252 ; Le Texier v. Margravine of Anspach, 15 Ves. 159 ; Bowles v. Stewart, 1 Sfh. & Lefr. 209 ; ib. 22/ ; 1 Mem. 123. And this obser- vation of course applies more strongly where the parties may be interested, but cannot other- wise be made defendants for want of privity. See .'3 Barnard, 32 ; Doran v. Simpson, 4 Yes. 651 ; 6 Ves. 750; 9 Ves. 86; Salvidgev. Hyde,5 Madd.138; S. C. I Jac. K. 151. (o) Steward v. E. I. Comp. 2 Vern. 380. See 14 Ves. 254; Goodman v. Sayers, 2 Jac. & W. 249. (p) Linyood v. Croucher, 2 Atk. 395 , Chicot v. Lequesne, 2 Ves. 315 ; and the case of Ward v. Periam, cited ib. 316 ; 1 Turn. R. 131, note; Lord Lonsdale v. Littledale, 2 Yes. Jim. 451; 14 Ves. 252. (7) Whitworthx . Davis, 1 Yes. & Bea. 545 ; S. C. 2 Rose, B.C. 116; Bailey x. Vincent, 5 Madd. 48 ; Lloyd v. Lander, 5 Madd. 2S2 ; but, it seems, that if fraud were charged and costs were prayed against him, he could not demur, ib. and 15 Ves. 164. See also King v. Martin, 2 Ves. Jun. 641. [161] 1 88 DEMURRERS. [CHAP. II. generally understood, that if any discovery is sought of his acts before he became a bankrupt, he must answer to that part of the bill for the sake of disco- very, and to assist the plaintiff in obtaining proof, though his answer cannot be read against his as- signees ; and otherwise the bankruptcy might en- tirely defeat justice (;-)• Upon the same principle it seems also to have been considered, that where a person having had an interest in the subject of a bill has assigned that interest, he may yet be compelled to answer with respect to his own acts before the assignment. It is difficult to draw a precise line between the [102] cases in which a person having no interest may be called upon to answer for his own acts, and those in which he may demur, because he has no interest in the question. Thus, where a creditor who had obtained execution against the effects of his debtor filed a bill against the debtor, against whom a com- mission of bankrupt had issued, and the persons claiming as assignees under the commission, charging that the commission was a contrivance to defeat the plaintiff's execution, and that the debtor having by permission of the plaintiff possessed part of the goods taken in execution for the purpose of sale, and in- stead of paying the produce to the plaintiff had paid it to his assignees, a demurrer by the alleged bankrupt, because he had no interest, and might be examined as a witness, was over-ruled, and the deci- sion affirmed on re-hearing (s) . A difference has also (?•) Upon this passage see (s) King v. Martin and others, 1 Yes. & Bea. 548, 549, 550. 25 July 1/95, rep. 2Ves.jun.641. S. II. P. I] DEMURRERS. 189 been taken where a person concerned in a transac- tion impeached on the ground of fraud has been made party to a bill for discovery merely (0 ; or as having the custody of an instrument for the mutual benefit of others (it). To prevent a demurrer a bill must in many cases not only show that the defendant has an interest in the subject, but that he is liable to the plaintiff's de- mands (>) . As where a bill was brought upon a ground [ 1 63] of equity by the obligee in a bond against the heir of the obligor, alleging that the heir having assets by descent ought to satisfy the hond ; because the bill did not expressly allege that the heir was bound in the bond, although it did allege that the heir ought to pay the debt, a demurrer was allowed (j/) . So where a bill was brought by a lessor against an assignee touching a breach of covenant in a lease, and the covenant, as stated in the bill, appeared to be collateral, and not running with the land, did not therefore bind assigns, and was not stated by the bill expressly to bind assigns, the assignee demurred, and the demurrer was allowed (z). VII. If for any reason founded on the substance vn. want or J title to the relief of the case as stated in the bill, the plaintiff* is not praye ; lb Yes. 328. And see 1 Sim. & Stu. 106. O) 1 Sch. & Lefr. 299, and cases cited there, in note (b) ; and see Douglas v. Clay, Dick. 393 ; Brooks v. Reynolds, Dick 603; S. C. 1 Bro. C. C. 183 Rush v. Hiygs, 4 Ves. 638 Paxtonx. Douglas, 8 Ves. 520 Terrewestv. Feather by, 2Menv 480 ; Curre x. Bowyer, 3 Madd 456 ; Farrell v. Smith, 2 Ball &B. 337; Uac. R. 122; Lord v. Wormleighton, I Jae. B. 148. (q) 1 Ca. in Cha. 269. Blaehham against the Warden and Society of Sutton ( 'old field. See Att. Gen. v. Heelis, 2 Sim. & Stu. 67. (r) See Att. Gen. x. Moses, 2 Madd. R. 294. 02 19G DEMURRERS. [CHAP. II. for the purpose of bringing the attorney-general before the court (s) . But where a bill was brought for distribution of private contributions, the objec- tion that the attorney-general was not a party was overruled (t) (1). by a'next'oVkln, For the application of personal estate amongst next or by or against . others claiming f \ un or amongst persons claiming under a general under a general o i a a description. description, as the relations of a testator or other person, where it may be uncertain who are all the persons answering that description, a bill has been admitted by one claimant on behalf of himself and the other persons equally entitled (it) (1). And the necessity of the case has induced the court, especially of late years, frequently to depart from the general [170] ru i Gj w here a strict adherence to it would probably amount to a denial of justice ; and to allow a few persons to sue on behalf of great numbers having the same interest (x) (1). There are also other cases in which the interests (s) Overall v. Peacock,6 Dec. (w) See Ambl. 710; 1 Russ. 1 737. See Well beloved v. Jones, R. 1 GG. 1 Sim. & Stu. 40. (a?) Chancey v. May, Prec. (t) Lee v. Carter, 17 Nov. in Chan. 592 (Finch Ed.) ; 1740, MS. N. reported 2 Atk. Gilb. 230 ; 1 Atk. 284; Leigh 84; but this point is not no- v. Thomas, 2 Ves. 312; Pearson ticed by Atkyns. Nutt v. v. Belchier, 4 Ves. 627 ; Lloyd Brown, 20 July 1745; Anon. v. Loari?tg, 6 Yes. 773 ; Goody. 3 Atk. 227 ; 1 Sim. & Stu. 43. Bleivitt, 13Ves. 397; Cockburn The attorney or solicitor-general v. Thompson, 1G Ves. 321 ; is usually a necessary party to 3 Meriv. 510; Manning v. suits relating to charity funds. Thesiger, 1 Sim. & Stu. 10G ; See Wellbelovedv. Jones, 1 Sim. Baldwin v. Lawrence, 2 Sim. &Stu.40;andabove,pp.23,120. & Stu. 18; Gray v. Chaplin, (1) See note on Parties at the end of the book. S. II. P. I.] DEMURRERS. 197 of persons not parties to a suit may be in some degree affected, and yet the suit has been permitted to proceed without them, as a bill brought by a lord of a manor against some of the tenants, or by some of the tenants against the lord, on a question of common ; or by a parson for tithes against some of the parishioners, or by some of the parishioners against the parson, to establish a general parochial modus (x) . In many cases the expression that all persons in- 1>er8 °? 9 ;, co . nse - J l ± quentially in- terested in the subject must be parties to a suit, i s terested; not to be understood as extending to all persons who may be consequentially interested. Thus, in the case [171] of a bill which may be brought by a single creditor for satisfaction of his single demand out of the assets of a deceased debtor, as before noticed, although the interest of every other unsatisfied creditor may be consequentially affected by the suit, yet that interest is not deemed such as to require that the other cre- ditors should be parties ; notwithstanding, the decree if fairly obtained will compel them to admit the 2 Sim. &Stu. 267; but it seems 16 Yes. 328; 1 Jac. & W. that except, perhaps, in the 369 ; 2 Swanst. 282 ; but it common cases of this kind, it appears that where it is at- is necessary to allege that the tempted to proceed against parties are too numerous to be some individuals representing individually named, JFeldv.Bon- a numerous class, as against ham, 2 Sim. & Stu. 91; see, churchwardens representing the however, Van Sandau v. Moore, parishioners in respect of a I Russ. R. 141. church-rate, it must be alleged (x) 1 Atk. 283 ; 3 Atk. 247 ; that the suit is brought against ChaytorwTrin. Coll. Anst. 841; them in such representative II Ves. 444; and see Adair v. character, 5 Madd. 13. New River Comp. 1 1 Ves. 429 ; 198 DEMURRERS. [ChAP. II. demand ascertained under its authority as a just demand, to the extent allowed by the court in the administration of assets ; but they will not be bound by any account of the assets taken under such a t e n res p ted S X! n " decree. So in all cases of bills by creditors or lega- Md^egades. e " tees, the persons entitled to the personal assets of a deceased debtor or testator, after payment of the debts or legacies, are not deemed necessary parties, though interested to contest the demands of the creditors and legatees ; and if the suits be fairly conducted, they will be bound to allow the demands admitted in those suits by the court, though they will not be bound by any account of the property taken in their absence {y) . to^touF**' To a bill to carry into execution the trusts of execution the • n i ■ • o 1 i j 1 i i n trusts of a will, a will disposing ol real estate by sale or charge 01 the estate, the heir at law of the testator is deemed a necessary party, that the title may be quieted against his demand (1) ; for which purpose the bill [1 72] usually prays that the will may be established against him by the decree of the court ; but if the testator has made a prior will containing a different disposi- tion of the same property, and which remains un- cancelled, and has not been revoked except by the subsequent will, it has not been deemed necessary to make the persons claiming under the prior will parties ; though if the subsequent will be not valid, those persons may disturb the title under it as well (y) See the case of Bedford 303 ; Wainwriyht v. Waterman, v. Leigh, Dick. 707. And see 1 Ves. J. 313 ; Brownv.Bvwth- Lawson v. Barker, 1 Bro. C. C. watte, I Madd. R. 448. (1) See note on Parties at the end of the book. S. II. P.I.I DEMURRERS. 199 as the heir of the testator. If, however, the prior will is insisted upon as an effective instrument not- withstanding the subsequent will, the persons claim- ing under it may be brought before the court, to quiet the title, and protect those who may act under the orders of the court in executing the latter instru- ment (2) . If no heir at law can be found, the king's attorney- general is usually made a party to a bill for carrying the trusts of a devise of real estate into execution, supposing the escheat to be to the crown, if the will set up by the bill should be subject to impeach- ment (a). But if any person should claim the escheat against the crown, that person may be a necessary party. If the heir at law of a testator who has devised a real estate on trusts should be out of the jurisdiction of the court, and that fact should be charged and n 73] proved, the court will proceed to direct the execution of the trusts upon full proof of the due execution of the will and sanity of the testator ; though that evi- dence cannot be read against the heir if he should afterwards dispute the will, and the court therefore cannot establish the will against him, or in any man- ner ensure the title under it against his claims (b) (1). (g) See on the general sub- 319 ; S. C. 2 Jac. & W. 2!) 4. ject, Harris v. Inyledew, 3 P. (o)Seen r ifliamsv.JVhinyates, Wins. 91; Lewis v. Nauyle, 2 2 Bro.C.C. 399; and see French Ves. 431 ; 1 Ves. Jun. 29. v. Baron, 2 Atk. 120 ; S. C. (a) See the case of Att. Gen. Dick, 138. v. Mayor of Bristol, 3 Madd. (1) A decree for establishing a will and executing the trusts Bill by heir im- thereof may be impeached by an oriyinal bill by the heir at law establishing T™ will. 200 DEMURRERS. [CHAP. II. IJffilropertyu Where real property in question is subject to an ressive estates", entail it is generally sufficient to make the first person in being, in whom an estate of inheritance is vested, a party with those claiming prior interests, omitting those who may claim in remainder or re- version after such vested estate of inheritance (c) ; and a decree against the person having that estate of inheritance will bind those in remainder or rever- sion, though by failure of all the previous estates the estates then in remainder or reversion may after- wards vest in possession (d). It has therefore been determined that a person so entitled in remainder, and afterwards becoming entitled in possession, may appeal from a decree made against a person having a prior estate of inheritance, and cannot avoid the effect of the decree by a new bill (e) . Contingent limitations and executory devises to persons not in being may in like manner be bound ri741 ky a decree against a person claiming a vested estate of inheritance ; but a person in being claiming under a limitation by way of executory devise, not subject to any preceding vested estate of inheritance by which it may be defeated, must be made a party to a bill affecting his rights (f) (1). (c) 2 Set. & Left. 210 j and (d) See Lloyd v . Johnes, 9 see Anon. 2 Eq. Ca. Ab. 166 ; Yes. 37 ; 16 Ves. 326. 2Ves.492; Pelhamv. Gregory, (e) Giffard v. Hort, 1 Sch. 1 Eden, R. 518 , S. C. 3 Bro. & Lefr. 38G, ib. 411. P. C. 204, Toml. Ed. (/) See Handcock v. Shaen, in case he was not sewed with a subpoena, though named as a party- defendant to the bill in the cause in which such decree was made. He need not file a supplemental bill in that cause. Waterton v. Croft, G Sim. 431. (1) See note on Parties at the end of the book. S. II. P. I.] DEMURRERS. 201 If a person entitled to an interest prior in limita- tion to any estate of inheritance before the court, should be born pending the suit, that person must be brought before the court by a supplementary pro- ceeding. And if by the determination of any con- tingency a new interest should be acquired, not subject to destruction by a prior vested estate of inheritance, the person having that interest must be brought before the court in like manner. And if by the death of the person having, when the suit was instituted, the first estate of inheritance, that estate should be determined, the person having the next estate of inheritance, and all the persons having prior interests, must be so brought before the court (g) . Trustees of real estate for payment of debts or Parties to suits respecting real legacies may sustain a suit, either as plaintiffs or de- SapSEfl * fendants, without bringing before the court the cre- ditors or legatees for whom they are trustees, which in many cases would be almost impossible ; and the rights of the creditors or legatees will be bound by the decision of the court against the trustees (h) (1). The interests of persons claiming under the pos- Tenants. Coll. F. C. 122; and Anon. 2 (h) See Franco v. Franco, Eq. Ca. Ab. 1GG ; Sherrit v. 3 Ves. 75 ; and see Curteis v. Birch, 3 Bro. C. C. 229. Candler, 6 Madd. 123. {(/) See 2 Sch. & Lefr. 210. (1) In Harrison v. Stewardson Sir James "Wigram, V. C, ob- served, " It is impossible to say tbat the practice of the court is in conformity with this passage , for almost the universal rule is to make legatees parties where legacies are charged on real es- tate." 2 Hare, 532. And see note on Parties at the end of the book. 202 DEMURRERS. [Chap. II. [175] Incumbrancers. Persons entitled to prior charges or to a surplus after payment of prior charges. session of a party whose title to real property is dis- puted, as his occupying tenants (1), under leases, are not deemed necessary parties ; though if he had a legal title, the title which they may have gained from him cannot be prejudiced by any decision on his rights in a court of equity in their absence ; and though if his title was equitable merely they may be affected by a decision against that title. Some- times, if the existence of such rights is suggested at the hearing, the decree is expressly made without prejudice to those rights, or otherwise qualified according to circumstances. If therefore it is in- tended to conclude such rights by the same suit, the persons claiming them must be made parties to it; and where the right is of a higher nature, as a mortgage, the person claiming it is usually made a party 0) (1). To a suit for the execution of a trust, by or against those claiming the ultimate benefit of the trust, after the satisfaction of prior charges, it is not necessary to bring before the court the persons claiming the benefit of such prior charges; and therefore, to a bill for the application of a surplus paid after payment of debts and legacies, or other prior incumbrances, the creditors, legatees, or other prior incumbrancers, need not be made parties (k) (1). And persons having demands prior to the creation of such a trust may enforce those demands against the trustees without bringing before the court the persons interested (i) See 2 Ves 450. (&) See Anon. 3 Atk. 5/2. (1) See note on Parties at the end of the book. S. II. P. I.] DEMURRERS. 203 under the trust, if the absolute disposition of the property is vested in the trustees (1). But if the trustees have no such power of disposition, as in [176] the case of trustees to convey to certain uses, the persons claiming the benefit of the trust must also be parties. Persons having specific charges on the fp^'K^IL . i on trust property. trust-property in many cases are also necessary par- ties ; but this will not extend to a general trust for creditors or others whose demands are not dis- tinctly specified in the creation of the trust, as their number, as well as the difficulty of ascertain- ing who may answer a general description, might greatly embarrass a prior claim against a trust- property (/). If a debt by a covenant or obligation binding the ^"21 the°rLT JIt , , assets of a debtor. heir of the debtor is demanded against his real assets in the hands of a devisee under the statute 3 & 4 W. & M. c. 14, the heir must always be a party {m) ; and if any assets have descended to the heir they are first applicable, unless the assets devised are charged with debts in exoneration of the heir. The personal (/) As to cestui que trusts titled to an aliquot part thereof being parties, see Kirk v. Clark, may sue the trustees for the Prec. in Chan. 275 ; Adams v. same, without making the per- St. Leger, 1 Ball & B. 181 ; sons claiming the other shares Caherley v. Phelp, 6 Madd. thereof parties to the suit. 229; Douglas v. Horsfall, 2 Smith v. Snow, 3 Madd. 10. (1) Sim. & Stu. 18-1. It may here (») Gatmler v. Wade, 1 P. be observed, that if the trust- Wms. 100; Warren v. Stawell, property be personal, and its 2 Atk. 125. amount be ascertained, one en- ! I) See note on Parties at the end of the book. 204 DEMURRERS. [CHAP. II. representative of the deceased debtor is also generally a necessary party (?i) , as a court of equity will first apply the personal, in exoneration of the real [177] assets (1). When there has been no general personal tVaTor?lndper- s " representative, a special representative by an admi- tive constituted nistration limited to the subject of the suit has been in England. * required. In other cases where a demand is made against a fund entitled to exoneration by general personal assets, if there are any such, a like limited administrator is frequently required to be brought before the court. This seems to be required rather to satisfy the court that there are no such assets to satisfy the demand : for although the limited admi- nistrator can collect no such assets by the authority under which he must act, yet as the person entitled to general administration must be cited in the eccle- siastical court before such limited administration can be obtained, and as the limited administration would be determined by a subsequent grant of general administration, it must be presumed that there are no such assets to be collected, or a general admini- stration would be obtained (p) (1). (n) Knight v. Knight, 3 P. departed out of the realm, a Wms. 331 ; 3 P. Wras. 350; special administration may, after 3 Atk. 406 ; 1 Eq. Ca. Ab. 73 ; twelve months from the decease JDowe v. Farlie, 2 Madd. R, of the testator, be obtained to 101 ; 2 Sim. & Stu. 292. defend a suit, or to carry a de- (o) See the case of Glass v. cree into execution, by virtue of Oxenham, 2 Atk. 121. Where stat. 3S Geo. III. c. 87. Rains- probate has been granted, and ford v. Tai/nton, 7 Ves. 460. the executor has subsecmently (1) See note on Parties at the end of the book. S. II. P. I.] DEMURRERS. 205 The personal representative thus brought before the court must be a representative constituted in England ; and although there may be personal assets in another country, and a personal representative constituted there, yet as he may not be amenable to the process of the court, and those assets must be subject to administration according to the laws of [178] that country, such a representative is not deemed a necessary party to substantiate a demand against the real assets in England (p) (1). Where a claim on property in dispute would vest in the personal representative of a deceased person, and there is no general personal representative of that person, an administration limited to the subject of the suit may be necessary to enable the court to proceed to a decision on the claim ; and when a right is clearly vested, as a trust-term, which is required to be assigned, an administration of the effects of the deceased trustee limited to the trust- term is necessary to warrant the decree of the court for assignment of the term. In some cases, when it has appeared at the hear- JSjSSifJS r, ., . .-. ■. i_ i_- t> presentativeasa ing 01 a cause, that the personal representative of a party «> a bin. deceased person, not a party to the suit, ought to be privy to the proceedings under a decree, but that no question could arise as to the rights of such repre- sentative on the hearing, the court has made a decree (p) See Jauncy v. Sealey, lie, 2 Madd. R. 101 ; Logan v. 1 Vera. 39/ ; mdLoive v. Far- Farlie, 2 Sim. & Stu. 284. (1) See note on Parties at the end of the book. 206 DBMUKKBR8. C'UAP. II. directing proceedings before one of the masters of the court, without requiring the representative to be made a party by amendment or otherwise; and dm given leave to the parties in the >uit to bring a representative before the master on taking the ac- counts or other proceedings directed by the decree, which may concern the rights of such reprcM-nta- 179] tive ; and a representative thus brought before the master is considered as a party to the cause in the subsequent proceedings (/?). L*g»iov/) As to the case of a trus- and Blake v. J r, Anstr. Prec. in Chan. 275; 3 651. Bee also Ryan \. dnder- Barnard, 325 ; Burt y. Detmet, mm, 3 Madd. 174; Edueu v. _' Bro. ('. C. 225 ; 7 Vea. 11 ; Jewell, 6 Madd. 165; 2 Sim. Cholmondeley \ , Ctintou, 2 Mi - & Btu. 253. riv. 71 . '.V.>t.at^ 3 £q. (1) 8 D i'artio ;it tbc end of tbc l>ook. S. II. P. I.] DEMURRER^ 207 must be brought before the court to litigate a ques- tion, who had, according to the decision, no interest in the subject ; and as to whom therefore, whether plaintiffs or defendant, the bill may be finally dis- missed, though the court may make a decree on the subject as between other parties, which will be con- clusive on the persons as to whom the bill may be so dismissed, but which the court would not pro- nounce in their absence, if amenable to its juris- diction. Sometimes, too. a plaintiff, by waiving a particular SS^SSCi claim, may avoid the necessity of making parti< - who might be effected by it, though that claim might [180] be an evident consequence of the rights asserted by the bill against other parties. This, however, can- not be done to the prejudice of others. Whenever a want of panics appears on the face waTt u T r a£L of a bill, the want of proper parties is a cause of' demurrer s 1 . But if a sufficient reason for not bringing a necessary party before the court is susr- Clark v. Lord Angicr, 9];Graj/x.Cfi(ij)/in,2S\m. \Stu. 1 Ca. in Chan. 41 j Nels. R. 267; Manic v. Bide of Bran- lUUjf v. Fountains fort, 1 Russ. R. 8-19. Qua>re, Finch, R. 1 ; Weato* v. A"r tpA- whether a demurrer for want of ■ch, R. v rf ▼. parties should he to the whole Hair!;!),*, Finch. R. 113; Galle hill. Sec/:. /. Cammmm ▼. '•'. Finch, R. 202; 3 Coles, reported 3 Swanst. 142 P. Wins. 311, note ; Knigkt v. note ; and see the cases of Af- . ;; P. Wins. 331 ; -J womd v. ILnrkhi*, Finch, R Atk. :>:0; 1 Eq. Ca. Ah. 7J; IKS; Attiey r. f i m> ,e, 2 Eq. Ca. Ah. 1 65 ; Cuchburn Finch, R. -J ; and flrr.v. v. Thompson, 16 Yes. 321 ; v. Beermtt, 2 Ca. in Chan. ^. Butt, 6 Madd. 53; 197, cited 3 Swanst. 144, i U , t e. mi, 'J Sim. & Stu. .avoided. 208 DEMURRERS. [ChAP. II. gested by the bill (1) ; as if a personal representative is a necessary party, and the representation is charged to be in litigation in the ecclesiastical court (t) ; or if the bill seeks a discovery of the parties interested in the matter in question for the purpose of making them parties, and charging that they are unknown to the plaintiff; a demurrer for want of the necessary parties will not hold (u). ought a to™' er A demurrer for want of parties must show who per parties. are the proper parties : not indeed by name, for that [181] might be impossible ; but in such manner as to point out to the plaintiff the objection to his bill, and ena- ble him to amend by adding the proper parties (x) (2) . In case of a demurrer for want of parties, the court has permitted the plaintiff to amend, when the de- murrer has been held good upon argument (y). Jx-Muitifarions. jx. The court will not permit a plaintiff to de- mand, by one bill, several matters of different natures against several defendants (z) ; for this would tend to load each defendant with an unnecessary burthen of costs, by swelling the pleadings with the state of the several claims of the other defendants, with which (t) 2 Atkyns, 51 ; and see Ves. 781; 11 Ves. 369; 16 Jones v. Frost, 3 Madd. I. Ves. 325 ; 3 Madd. 62. (u) Bowyerv. Covert, 1 Vern. (y) Bressenden v. Decreets, 95; Heath v. Percival, 1 P. 2 Ch. Ca. 197. Wms. 682, 684. 0) See 5 Madd. 146. (x) Upon this subject see 6 Allegation as to a (1) In order to dispense with making a person a defendant, it sconded.' " is not sufficient to allege that he absconded a year before the bill was filed : for he might have returned before the filing of the bill. Pen/old v. Nunn, 5 Sim. 405. (2) Lund v. Blanshard, 4 Hare, 23. S. II. P. I.] DEMURRERS. 209 he has no connection. A defendant may therefore demur, because the plaintiff demands several matters of different natures of several defendants by the same bill (a). But as the defendants may combine toge- ther to defraud the plaintiff of his rights, and such a combination is usually charged by a bill, it has been held that the defendant must so far answer the bill as to deny combination (Z>) . In this however, the defendant must be cautious ; for if the answer [182] goes farther than merely to deny combination, it will over-rule the demurrer (c) (1). A demurrer of this kind will hold only where the plaintiff claims several matters of different natures ; but when one general right is claimed by the bill, though the defendants have separate and distinct rights, a demurrer will not hold (d). As where a person claiming a general (a) Berke v. Harris, Hardr. pp. 43, 44. The proposition in 33/. And, as late instances of the text, however, so far as it demurrers for multifariousness, may apply to the usual general see Ward v. Cooke, 5 Madd. charge of combination, seems 122 ; Sahidf/ev. Hyde, 5 Madd. now to have been overruled. 138; S. C. 1 Jac. R. 153; Tur- Brooks v. Lord Whitworth, ner v. Doubleday, 6 Madd. 94 ; 1 Madd. R. 86 ; Sahidge v. ExeterColt.x. Rowland,6Madd. Hyde, 5 Madd. 138. And the 94 ; Kaije v. Moore, 1 Sim. & ultimate decision in the latter Stu. 61 ; Dew v. Clarke, 1 Sim. case upon appeal, reversing the & Stu. ] 08 ; Turner v. Robinson, former, does not appear to have 1 Sim. & Stu.313, and Shackell had any reference to that pro- v. Macaulay, 2 Sim. & Stu. 79. position ; S. C. 1 Jac. 151. (b) Powell v.Arderne, 1 Yern. (c) Hester v. Weston, 1 Vera. 416. As to the interpretation 463. to be put upon this passage, (d) See the cases cited see 8 Ves. 527; and asto general above, pp. 169, 170. And see charge of combination, see sup. Buccle v. Atleo, 2 Yern. 37. (1) See note (1) p. 248. 210 DEMURRERS. [CHAP. II. right to the sole fishery of a river, filed a bill against several persons claiming several rights in the fishery, as lords of manors, occupiers of lands, or otherwise (e) . For in this case the plaintiff did not claim several separate and distinct rights, in opposition to several separate and distinct rights claimed by the de- fendants ; but he claimed one general and entire right, though set in opposition to a variety of dis- tinct rights claimed by the several defendants. So where a lord of a manor filed a bill against more than thirty tenants of the manor, freeholders, copyholders, and leaseholders, who owed rents to the lord, but had confused the boundaries of their several tene- ments, praying a commission to ascertain the bounda- ries ; and it was objected at the hearing that the [183] suit was improper, as it brought before the court many parties having distinct interests ; it was an- swered, that the lord claimed one general right, for the assertion of which it was necessary to ascertain the several tenements, and a decree was made ac- cordingly (/) (1). As to cases of infringement of (/) Magdalen Coll. against copyrights and patents, see Athill and others, at the Rolls, Billy v. Doig, 2 Ves. Jun. 486. 26 Nov. 1753. See the distinc- (e) Mayor of York v. Pilk- tions taken in Berke v. Harris, ington, 1 Atk. 282. Hardres, 337. Trusts both of a (1) Cases where a bill is multifarious. — It is not al- ronege. an a lowable to unite in the same information an application as to abuses in a school with an application as to abuses in a college, though the latter arc abuses in relation to estates given to the college for the benefit of five scholars from the school ; for the school and the college are distinct foundations, and one defence cannot be made as to the abuses in both. Attorney -General v. St. Johns College, 7 Sim. 241. S. II. P. I.] DEMURRERS. 211 As the court will not permit the plaintiff to de- ^jJ° BOf mand by one bill several matters of different natures Two or more distinct matters cannot be included in the same Joining distinct charities in the suit, where it does not clearly appear that they are homogeneous, information . !»•■£/*• • i n a g ainst the same with the exception of minute differences, even in the case of company. a sole plaintiff and a sole defendant. So that where an infor- mation, after stating a will by which property was given to a city company, for the purpose of making loans to young men free of the company, to assist them in trade and otherwise, alleges that divers other donations and bequests have been made to the company for the purpose of making loans to young men (generally and without restriction) for their advancement in business and life, and it prays relief in respect of the first- mentioned and such other gifts and bequests, it is multifarious. Attorney-General v. The Goldsmiths Company, 5 Sim. 6/0. If a person, who is the personal representative both of a testa- J^j ","^ ''"^ona! tor and of the testator's residuary devisee and legatee, files a bill estat e. against an agent for an account of the rents of the real estate and of the personal estate, received by such agent since the testator's death, the bill is multifarious. Weeks v. Pitt, 10 Law J. (N. S.)Ch. Rep. 5. And so where the heir, who is also one of the next of kin, of an intestate, joins with the other next of kin in a bill against the ad- ministratrix, who has entered into possession of the real estate, as well as the personalty, for an account of the intestate's real and personal estates, the bill is demurrable for multifariousness. Dunn v. Dunn, 2 Sim. 329 ; see also Maud v. Aclom, ib. 331. The union of an equitable ejectment bill against one person, Equitable eject- and a bill to redeem against another person, is multifarious, demption. e " Plumbe v. Plumbe, 4 Y. & C. Eq. Ex. 345. «A bill for a discovery and a commission or commissions to Discovery and .. • »j j» ,i_ j a , ,. commission in aid examine witnesses m aid or the defence to two separate actions f the defence to for two separate libels, is multifarious and demurrable. For if two libels" 8 the same commission or commissions were to furnish the defence for both actions, the plaintiff at law would be delayed from pro- ceeding in either of the actions until the defendants were pre- pared for their defence in both. Shackell v. Macaulay, 2 S. &S. 79. If a vendor files a bill against a purchaser for a specific per- Seeking, in a suit formance of the purchase contract, and in the same bill prays spedficperform- p2 212 DEMURRERS. [ChAP. II. against several defendants, so it will not permit a bill to be brought for part of a matter only ; but ance, a fulfilment that another defendant who has agreed with the vendor to also of another . ° agreement with a execute a release in order to perfect the title, mav be decreed third person to . . . . .. . _ , enable the vendor to execute such release, the bill is multifarious : for the pur- tnie. chaser ought not to be harassed with a distinct agreement be- tween the vendor and a third person, although such agreement was designed to be subservient to the performance of the purchase contract. Reynolds v. Johnston, 7 Law J. (0. S.) Ch. Rep. 45. A bill for an account of a testator's estate, and also to set aside sales made by the executor and trustee to himself and another person, is multifarious. Salvidge x. Hyde, Jac. 151. A bill both for the administration of general personal estate and for the redemption of a mortgage is multifarious. Pearse v. Hewitt, 7 Sim. 471. If to a foreclosure suit, a third person, who has some interest in the equity of redemption, is made a party ; and in a bill of revivor supplemental matter is introduced, with reference to a lien claimed by the mortgagor on land in the mortgagee's pos- session which was allotted to the mortgagor in respect of the mortgaged premises, such a bill is multifarious as regards such third person. Lloyd v. Douglas, 4 Y. & C. Eq. Ex. 448. Where a bill is not sustainable as a bill of interpleader, and it mixes up distinct claims of different defendants, although con- nected with the same subject-matter, it is multifarious. Bignold v. Audland, 11 Sim. 24. A bill praying for a declaration that a person to whose nominee two debts due to different creditors have been assigned may be declared a trustee of such debts for another party, and may be restrained from proceeding at law upon judgments obtained for them, is demurrable for multifariousness. Miller v. Walker, 9 Jur. 107. A bill for an account of agencies with two different firms, though carrying on the same concern, and only different by reason of a change of some of the partners, is multifarious, if the allega- tions of the bill are such, that, when taken most strongly against the plaintiff, they show that the dealings with the two firms were separate transactions. Benson v. lladfield, 5 Beav. 546. "Where a person makes a shipment of goods on account of Bill for an ac- count and for avoiding sales. Administration and redemption. Bill of revivor of a foreclosure suit introducing a question as to a lien claimed by the mortgagor. Mixing up dis- tinct claims. Suit in respect of debts due to dif- ferent persons. Account of two agencies. Account of trans actions between two persons mixed another, and advances money to him upon the goods, and afterwards S. II. P. I.] DEMURRERS. 213 to prevent the splitting of causes, and consequent multiplicity of suits, will allow a demurrer upon this ground (g) . ((/) 1 Vera. 29; Edgworth v. Swift, 4 Bro. P. C. 654, Toml. Ed. See above, pp. 169, 170. the same person and his partner make other shipments of goods on np "J fll f a i?£! account of such other party and his partner, and advance money tj°ns between r J l * them and their to them upon those goods ; and the proceeds of all the shipments respective part- are remitted to another firm ; and the surviving partners of that firm file a bill of interpleader against the assignees of the person who made the first shipment, and his partner, and the assignees of the person on whose account the first shipment was made and his partner, and pay the balance of all the remittances into court, as one balance ; and the assignees of the person who made the first shipment and his partner file a bill against the surviving partners of the firm to whom the remittances were made, and against the assignees of the person on whose account the first shipment was made and his partner, for an account of what is due to the person by whom the first shipment is made, and also of what is due to him and his partner, on account of their advances ; the suit is multifarious ; because the first transaction between two persons, when alone, ought not to be mixed up with the trans- actions between the same persons, after each had entered into partnership with another person. Miller v. Crawford, 9 Law J. (O. S.) Ch. R. 193, L. C. Cases where a bill is not multifarious. — It does not follow, Multifariousness as a necessary consequence, that in every case in which a bill dant.° ne efen " is multifarious as to one defendant, it is multifarious as to the rest. Att. Gen. v. Cradock, 8 Sim. 467. Where a case is an entire case as against one defendant, the where one defen- court will not attach weight to the objection that another defend- JSrtfifcpSt ant is connected only with some portion of the whole case : for, in MMainrtLotoer order to obviate this objection, it would be necessary to split an defendant - entire case. And hence where a bond is improperly given to a person by a corporation, and a rate is imposed to provide a fund to meet the demand upon the bond, an information seeking pro- tection against both the bond and the rate is not multifarious : for as the illegality of the bond creates an illegality in the rate, there is an entire case as against the corporation ; and though the 214 DEMURRERS. [CHAP. II. whether a de- A discovery being compelled upon a bill praying relief extends to the discovery. obligee has nothing to do with the rate, but only with the bond, yet the information is not multifarious as to him. Att. Gen. v. Parr, 8 CI. & Fin. 409. Comprising Several charitable trusts, especially if the property is small, several charitable t _ . . trusts in one in- may be comprised in one information, where one and the same formation. ' r . . \ii party is proceeded against (such as a city company), and where the several trusts, though created by different persons, and at different times, have all a common subject-matter (such as monies given in trust to be lent), and where the persons beneficially interested in the trusts belong to the same body, (as for instance, to the company proceeded against,) although very different descrip- tions of persons among that body are respectively the objects of the respective charities. Att. Gen. v. Merchant Tailors' Com- pany, 1 M. & K. 189. Seeking the Where an information is filed against the trustees of certain general adminis- ° trationofacharity charities, and against a person who, in concert with one of the estate, and relief ° *■ in respect of a trustees, has effected an exchange of property in which they were fraud as to a part ... ... " by one trustee and iointlv interested for a portion of the charity estate, and such a third person. . „ . „ . . . ■ «• j 1 ii information alleges that such exchange is fraudulent, and that the charity estate has been improperly managed by the trustees, and prays a general account, and a scheme, and that the exchange may be set aside ; a demurrer for multifariousness put in by the party who had colluded with the trustee in the exchange will be overruled. Att. Gen. v. Cradock, 3 My. & C. 85. rea^and personal Where executors have possessed themselves of the rents and estate - profits of real estate and personal estate devised and bequeathed to different parties, and have blended both together, so that they cannot be distinguished, a bill filed against the executors and the persons interested in the personal estate and the rents and profits of the real estate, for an account of both, is not demurrable for multifariousness or misjoinder. Sanders v. Kelsey, 10 Jur. 833. Administration of The administration of the real and personal estates of two estates of two . . . partners in one deceased partners, towards the payment of their jomt and sepa- rate debts, may be comprised in one suit ; for the rule is, that the joint estate must first be applied in payment of the joint debts, and then the surplus of the separate estate of each partner which may remain after payment of the separate debts of that partner is contributable to supply the deficiency of the joint estate to pay the joint debts. And those who are interested in S. II. P. I.] DEMURRERS. 215 relief, for the purpose of enabling the plaintiff to the surplus of the separate estate of one partner, ought to be pre- sent to a suit instituted for the purpose of ascertaining what is the surplus of the separate estate of another partner. Brown v. Dovglas, 11 Sim. 283; Brown v. Weatherhxj, 12 Sim. 6. Where an action is brought by an administrator of an intestate Account of the , . j* n i . lii estates of two against the executors ot the widow of the intestate, who had pos- deceased persons. sessed assets without having taken out administration, for monies alleged to be due to the intestate's estate; and the executors of the widow and the children of the intestate file a bill against his administrator, for an account both of the estate of the intestate and of the estate of the widow, and of what is due from the former estate to the latter, and for an injunction to restrain the action, the bill is not multifarious ; for in such case the court cannot administer relief without taking the accounts of both estates. Lewis v. Edmund, G Sim. 251. Where a policy of insurance is underwritten by Lloyd's under- bui by different writers, and another policy is effected by the same party with the writers in respect corporation of the London Assurance, these bodies of underwriters policies? may join in one bill against the assured. Mills v. Campbell, 2 Y. &C. Eq. Ex.391. Where a bill is filed by the drawer and acceptor of four bills of f™* b ni r a e of e «- of exchange, against a person to whom they had been delivered for chan &e. the purpose of being discounted, and against his indorsees, and against subsequent indorsees who are the holders of the bills, praying for a delivery up of the bills on the ground of a fraud to which all the defendants were privy, such a bill is not multi- farious. Lord Foley v. Carlon, 1 Younge, 3/3. If a bill is filed by two executors for an account of assets re- Biiiforaset-otr ceived by an agent, and for the performance of an agreement for tions on promis- a set-off of such assets against monies lent by him to them in- executors! dividually on their respective separate accounts, and for an injunc- tion to restrain an action brought after notice of such agreement, by indorsees of promissory notes given by them for the monies so lent ; the bill is not multifarious, nor is there a misjoinder of plaintiffs. Davis v. Cripps, 2 Y. & C. Ch. Ca. 430. Where the executors of a testator refuse to file a bill to have Bin to have an a testator's estate recouped out of a fund in court, in respect and a mortgage of a debt paid out of that estate, which ought to have been paid Sifttte out of such fund, and there are no assets of the testator re- 8Um recouped - 216 DEMURRERS. [CHAP. II. obtain that relief, the discovery is in general inci- maining for payment of a judgment creditor and of a mortgagee whose mortgage debt has priority over the judgment debt ; the judgment creditor may, without any objection on the ground of multifariousness, file a bill to have the testator's estate re- couped, and the mortgage and judgment debts paid out of the sum as to which the estate of the testator is sought to be so recouped ; and for that purpose the mortgagee and the party interested in the fund above mentioned, as well as the executors, are proper parties. Lancaster v. Evors, 4 Beav. I08. Bill to restrain A bill to restrain commissioners under an act of parliament from different acts of . . , , . . , ,/>t t the same persons, paving one part and draining another part ot the same plot of ground, is not multifarious. Birley v. The Constables, §-c. of Charlton-upon-Medlock, 3 Beav. 499. Bin in respect of "Where by a deed executed before marriage, a husband vests a property com- . ' . prised in t\v fund in two trustees, upon trust for his wife for life, and, after her decease, for the benefit of the children of the marriage, with a proviso that the persons to be appointed guardians by his will, with the trustees, shall, after the decease of his wife, have autho- rity to apply the interest and part of the capital for the mainte- nance and advancement of the children ; and by another deed, after marriage, he vests another fund in two other trustees, upon similar trusts, with a similar proviso ; and by his will, after some specific bequests to his wife, he bequeaths his property to three of the trustees of the deeds, upon certain trusts for the benefit of his children, and appoints them executors and guardians of his infant children ; and the wife and children file a bill against the four trustees for a performance of the trusts of the deeds, and for an account of the personal estate and debts, and an administration of the property ; a demurrer by the three trustees appointed guardians, put in on the ground of multifariousness, will be overruled : for there is a common interest in all the plaintiffs under all the instruments ; and all the defendants are accounting par- ties, though they are not all parties to all the instruments ; and the three demurring defendants have all an interest, not only under the will, but also under the deeds, by force of the provisoes therein contained. Campbell \. Maekay, 1 My. & C. 602. seeking relief Where third parties have been implicated in what they knew against fraud, and . .. , » i » i « • • i also a general to be a misapplication ot the iunds oi a joint-stock company, they administration. S. II. P. I.] DEMURRERS. 217 dental to the relief (//), and a demurrer to the relief (A) 1 Sim. & Stu. 93. may be made defendants to a bill by some of the shareholders of the company, although the bill, besides seeking relief against such third parties, prays also for the general administration of the assets of the company. Lund v. Blanshard, 4 Hare, 9. In the case in which tbis point arose, the company was a banking company, and the third party was another banking company. If a cestui que trust of a sum of money covenanted to be set- Payment of a 1 J debtandimpeach- tled seeks payment thereof out of the assets of the covenantor, ment of a prior 1 ' ... . security of and for a general administration of his personal estate for that another creditor, purpose, if assets be not admitted, and also seeks to impeach a prior security claimed over the whole of the covenantor's property by one of the trustees of the settlement ; a demurrer by him for multifariousness in the usual form is bad, because all the matters may come into consideration in the course of taking the account, and therefore are not "distinct," and the defendant trustee is "interested" in the account as trustee. Addison v. Walker, 4 Y. & C. Eq. Ex. 442. A bill is not multifarious because it seeks to enforce one Distinct remedies , against different remedy against one defendant, and another remedy, in addition defendants. to that remedy, against another defendant. Manners v. Rowley, 10 Sim. 470. Right mode of taking the objection of multifariousness. — In a case where defendant demurred to a bill for multifariousness, and it was then amended so as to preclude a demurrer on that ground, but he insisted on the same objection in his answer to the amended bill, Sir J. Wigram, V. C. said, "It would certainly be most unjust if a plaintiff could compel a defendant to continue a party to a multifarious record, merely by inserting false allegations in the bill. A plea that a bill is multifarious is a defence I have never seen, though I know such a plea has, whether successfully or not, been attempted. ... In what form this objection may be successfully taken or resisted, according to the strict mode of pleading, I need not now inquire." But the learned judge added, " The objection of multifariousness is one which should be taken in limine. . . . The defendant may be subjected to the expense of taking copies of papers relating to matters with which he has no concern, and be kept before the court on the discussion of points in which he is not interested. If the defendant does not take the 218 DEMURRERS. [CHAP. II. consequently extends to the discovery likewise (i) (1). But as the court entertains a jurisdiction in certain cases for the mere purpose of compelling a discovery, without administering any relief, it was formerly conceived that though a plaintiff prayed by his bill relief to which he was not entitled, he might yet [184] show a title to a discovery; and therefore, though a demurrer might hold to the relief, the defendant might notwithstanding be compellable to answer to the discovery, the bill being then considered as in effect a bill for a discovery merely (/.-). This, how- ever, has since been determined otherwise (/) ; and where a plaintiff entitled to a discovery added to his bill a prayer for relief (m) , a demurrer has been (i) See Baker v. Mellish, 517. 10 Ves. 544 ; 3 Meriv. 502. (k) See Fry v. Penn, 2 Bro. It may happen, however, that C. C. 280. the relief sought maybe con- (I) SeePrice v. James, 2 Bro. sequential to discovery to which C. C. 319. the plaintiff is entitled, in which (m) It is presumed, that in case a general demurrer would order to the defendant being perhaps be overruled. See thus able by demurrer wholly Brandon v. Sands, 2 Ves. Jun. to protect himself against the 514; Brandon v. Johnson, ib. interference of the court, it objection in limine, the court, considering the mischief as already incurred, does not, except in a special case, allow it to prevail at the hearing. All that the court, in this case, can do, is to pro- tect the defendant from the costs incurred, if it should hereafter appear he has been improperly subjected to costs." Benson v. Hadjield, 4 Hare, 39, 40. where a demurrer 0) A demurrer to the specific relief prayed will not extend to extend^dts-" 01 tne discovery sought, where the bill states a clear case for other covery. relief, which can be given under the prayer for general relief, and to which the discovery sought may be ancillary. Deare v. Attor- ney-General, 1 Y. & C. Eq. Ex. 197. S.H.P.I.] DEMURRERS. 219 allowed (»). And where a defendant had demurred diS™ «d b n e oi ... . tmi/> a ' I to the relief. to the discovery sought by a bill, /or want of title in the plaintiff to require the discovery, but had omitted to demur to the relief prayed (1), to which that dis- covery was merely incidental, it was conceived the demurrer must, in point of form, be overruled ; for the demurrer, applying to the discovery only, admit- ted the title to relief, and consequently admitted the title to the discovery, which was only incidental to the relief (o) . But though a plaintiff may be entitled [185] to the relief he prays, there may yet be reasons to induce a court of equity to forbear compelling a discovery (p). It remains therefore to must appear from the manner in which the plaintiff states his case that he seeks the discovery as incidental to the relief. See cases in the next note. (n) Collis v. Sway tie, 4 Bro. C. C. 480; Loker v. Rolle, 3 Ves. 4 ; Ryves v. Ryves, 3 Ves. 343 ; 6 Ves. 63 ; 6 Ves. 686; 8 Ves. 3; Gordon v. Simpkinson, 11 Ves. 509; 17 Ves. 216; 1 Ves. & Bea. 539; 2 Ves. & Bea. 328 ; Jones v. Jones, 3 Meriv. 161 ; 3 Meriv. 502. This may probably have the effect of compelling a plain- tiff in a doubtful case to frame his bill for a discovery only in the first instance ; and, having obtained it, by amending his consider the objections to Grounds of de- " murrer to dis- covery. bill to try the question whether he is also entitled to relief; which was formerly a frequent practice, and possibly a greater inconvenience. (o) Morgan v. Harris, in Ch. 31 Oct. 1786, reported 2 Bro. C. C. 121 ; Waring v. Mackreth, Forrest, 129. (p) A plaintiff may be en- titled to relief in equity, inde- pendently of the discovery, 1 Swanst. 294. And there may be instances in which a defend- ant, although he should think proper to give the discovery, may yet demur to the relief. 2 Atk. 157 ; Hodgldnx. Long- den, 8 Ves. 2 ; Todd v. Gee, 1 7 Ves. 273. (1) The 36th order of August, 1841, does not enable a defendant to demur to discovery without demurring to the relief. Dell v. Hale, 2Y.&C.Ch.C. 1. 220 DEMURRERS. [ClIAP. II. a bill which are causes of demurrer to disco veiy only. These are, I. That the case made by the bill is not such in which a court of equity assumes a jurisdic- tion to compel a discovery : II. That the plaintiff has no interest in the subject, or no interest which en- titles him to call on the defendant for a discovery : III. That the defendant has no interest in the subject to entitle the plaintiff to institute a suit against him even for the purpose of discovery: IV. Although both plaintiff and defendant may have an interest in the subject, yet that there is not that privity of title between them which gives the plaintiff a right to the discovery required by his bill : V. That the discovery if obtained cannot be material : and, VI. That the situation of the defendant renders it im- proper for a court of equity to compel a discovery (1). cVicuon" tofju ' is * I- Where a bill prays relief, the discovery, if material to the relief, being incidental to it, a plain- tiff showing a title to relief also shows a case in which a court of equity will compel a discovery, unless some circumstance in the situation of the [186] defendant renders it improper. But where the Jbill is a bill of discovery merely, it is necessary for the plaintiff to show by his bill a case in which a court of equity will assume a jurisdiction for the mere Demurrer on the (1) To a bill by legatees, whose legacies are charged on real ffJscovery related estate, charging that the testator was tenant in fee simple, and to the defendant s ^ tenant m ta ^ f snc \ 1 rea \ es tate, as alleged by the defendant, or that only a small portion thereof was entailed, and seeking for a discovery and production of the deed of entail, a demurrer on the ground that it relates to the defendant's title will be allowed. Wilson v. Forster, 1 Younge, 281. On the subject of discovery, the reader is referred to the learned works of Sir James "Wigram and Mr. Hare. S. H.P.I.] DEMURRERS. 221 purpose of compelling a discovery. This jurisdic- tion is exercised to assist the administration of justice in the prosecution or defence of some other suit, either in the court itself or in some other court (), though the defendant has no interest ; and he can then only avoid answering the bill by plea or disclaimer. There seems to be an exception to the rule in the case of a corporation ; for as a corporation can answer no otherwise than under their common seal, and therefore, though they answer falsely, there is no remedy against them for (y) Aug ) Harvey v. Morris, Rep. Vera. 204. Tern. Finch, 214. (r) 1 Ves. 205; and see (o) Lord Montague v. Bud- Richards v. Jackson, 18 Ves. man, 2 Ves. 396. 4/2; 1 Madd. R. 192; Att.Gen. (p) 2 Atk. 388. v. Berkeley, 2 Jac. & W. 291 . (q) Hincks v. Nelthrope, 1 S.II.P.L] DEMURRERS. 229 and the patron demurred, because the discovery either was such as might subject him to penalties and for- feitures, or it was immaterial to the plaintiff, the demurrer was over-ruled ; the court declaring a clear opinion that the bond was not simoniacal, but con- ceiving that the discovery might be material to sup- port a defence to square impedit, upon this ground, " that the bond put the clerk under the power of " the patron, in derogation of the rights of the or- dinary 0)." VI. The situation of a defendant mav render it vi. Tendency of " the discovery to improper for a court of equity to compel a discovery, d ant e to i h unfih! n " either because the discovery may subject the defend- forfeiture, or J J ° hazard of title. ant to pains or penalties, or to some forfeiture ; or [194] something in the nature of a forfeiture ; or it may hazard his title in a case where in conscience he has at least an equal right with the person requiring the discovery, though that right may not be clothed with a perfect legal title (t) . It is a general rule, that no one is bound to answer so as to subject himself to punishment, in (s) Bishop of London against proceeded in the cases eon- Ffytche, in Chan. Trin. 1/81. sidered under the next head. In consequence of this decision See the cases reported in 1 Bro. an answer was put in admitting C. C. 96, and Cunningham's the bond ; and a quare impedit Law of Simony. See also Grey being brought, it was finally v. Hesketh, Ambl. 268. determined in the house of lords (t) See Ivy v. Kekeivich, 2, against the patron, and he con- Ves. Jun. 679 ; Lord S/u/ftes- sequently lost his presentation. bury v. Arroivsmith, 4 Yes. 06:, Perhaps, therefore, the over- 13 Ves. 251 ; 15 Ves. 378;, ruling the demurrer was in con- Wriyht x. Plumtree, 3 Madd. tradiction to the principles on 481 ; Gleyy v.Leyh, 4 Madd. which courts of equity have 193. 230 DEMURRERS. [CHAP. II. whatever manner that punishment may arise, or whatever may be the nature of the punishment (u) . If therefore a bill requires an answer which may (x) subject the defendant to any pains or penalties, he may demur to so much of the bill (y) . As if a bill charges any thing which, if confessed by the answer, would subject the defendant to any criminal pro- secution (z) (1), or to any particular penalties, as an usurious contract («), maintenance (b) , champerty (c) , (u) 2 Ves. 245, and the au- Cartwright v. Green, 8 Ves. thorities referred to in note, 405 ; 14 Ves. 65. 1 Eq. Ca. Ab. 131 j 11 Ves. («) Fenton v. Blomer, Tothill, 525 ; 2 Swanst. 214. 135 ; Earl of Suffolk v. Green, (x) 1 Atk. 539 ; 1 Swanst. 1 Atkyns, 450 ; 2 Atk. 393 ; 305 . 22 Vin. Ab. Usury, Q. 4 ; Whit- (y) See Billing v. Flight, 1 more v. Francis, 8 Pri. Ex. R. Madd. R. 230. And it may be 616. observed, that such a demurrer (Jj) Penrice v. Parker, Rep. will not be regarded as any ad- Temp. Finch. 75 ; Sharp v. mission of the truth of the Carter, 3 P. Wms. 3/5 ; Wallis charge; 16 Ves. 69. v. Duke of Portland, 3 Ves. (z) East India Company v. 494. Campbel, 1 Ves. 246 ; Chet- (c) See 2 Sim. & Stu. 252. wynd v. Lindon, 2 Ves. 451 ; (1) A bill of discovery is demurrable where the whole object of it is to obtain a discovery of an illegal assault and imprison- ment, with the view of subjecting the defendant to penal conse- quences. Glynn v. Houston, 1 Keen, 329. And it would seem that a bill of discovery cannot be sustained in aid of an action for a mere personal tort. lb. 337. The court will not compel a defendant to answer allegations, where there is a reasonable probability that by so doing he would subject himself to an indictment for a fraud. Maccallum v. Tur- ton, 2 Y. & J. 183. Where a bill seeks a discovery of transactions which would subject the defendant to a criminal prosecution under a statute, the defendant need not plead the statute, but may demur to the bill. Fleming v. St. John, 2 Sim. 181. S. II. P. I.] demurrers;. 231 simony (c). And in such cases, if the defendant is not obliged to answer the facts, he need not answer [195] the circumstances, though they have not such an immediate tendency to criminate {d) . If the plaintiff is alone entitled to the penalties, and expressly waives them by his bill, the defendant shall be compelled to make the discovery; for it can no longer subject him to a penalty (c) . As if a rector, or impropriator or vicar files a bill for tithes, he may waive the penalty of the treble value (f) to which he is entitled by the statute of 2 & 3 Edward VI. and thus become entitled to a discovery of the tithes subtracted. And though a discovery may subject a defendant to penalties to which the plaintiff is not entitled, and which he consequently cannot waive, yet if the defendant has expressly covenanted not to plead or demur to the discovery sought, which is the common case with respect to servants of the East In- dia company, he shall be compelled to answer (g) (1). (c)Att. Gen. v. Sudell, Prec. son, 11 Ves. 3/3. iaCh. 214; 1 Meriv.401. But (/) Anon. 1 Vera. 60. see p. 229, note (s). (g) South Sea Comp. v. (d) 1 Ves. 247, 248 ; 19 Ves. Bumsted, 1 Eq. Ca. Ab. 77 ; 227, 228. E. I. Comp. v. Atkins, 2 Ves. (e) Lord Uxbridge v. Stave- 108 : and see Paxton v. Doug- land, 1 Ves. 56: and see 1 las, 16 Ves. 239. Vera. 129 ; Bullock v. Richard- (1) A person who has been duly admitted a broker or agent by the mayor and aldermen of the city of London must answer a bill of discovery in aid of an action for misconduct, brought against him by his employer, although the discovery will subject him to penalties and to an indictment for perjury : for otherwise the bond given, and the oath taken by such persons on their ad- 232 DEMURRERS. [CHAP. II. Where, too, a person by his own agreement subjects himself to a payment in the nature of a penalty if he does a particular act, a demurrer to discovery of that act will not hold (//) . Thus where a lessee covenanted not to dig loam, clay, sand or gravel, except for the purpose of building on the land demised, with a proviso that if he should dig any of those articles for [196] any other purpose, he should pay to the lessor twenty shillings a cart-load, and he afterwards dug great quantities of each article ; upon a bill for discovery of the quantities, waiving any advantage of possible forfeiture of the term ; a demurrer of the lessee, be- cause the discovery might subject him to a payment by way of penalty, was overruled, (g) . And a party shall not protect himself against relief in a court of equity, by alleging that if he answers the bill filed against him, he must subject himself to the consequences of a supposed crime, though the court will not force him by his own oath to subject himself to punishment ; and therefore in the case of a bill to inquire into the validity of deeds upon a suggestion of forgery, the court has entertained jurisdiction of the cause ; and though it has not (/() See Morse v. Buekworth, ((/) Richards against Cole, 2 Vera. 443 ; JE. I. Comp. v. or Brodrepp against Cole, in Neave, 5 Ves. 173. Chan. Hil. Vacation, 1/79. mission, instead of securing their honesty, would only serve as a screen to them in the commission of the grossest frauds. And a person who has not been admitted a broker or agent, but acts as one, must answer, although he may thereby subject him- self to a penalty for acting without having been admitted. Green v. Weaver, 1 Sim. 404. S. II. P. I.] DEMURRERS. ^33 obliged the party to a discovery of any fact which might tend to show him guilty of the crime, has directed an issue to try whether the deeds were forged (h). It should seem that a demurrer will also hold to any discovery which may tend to show the defendant guilty of any moral turpitude, as the birth of a child out of wedlock (/') . But a mother has been com- pelled to discover where her child was born, though it might tend to show the child to be an alien (/) ; for that was not a discovery of any illegal act, or [197] of any act which could affect the character of the defendant (/) . A demurrer will likewise hold to a bill requiring a discovery which may subject the defendant to any forfeiture (m) of interest : as if a bill is brought to discover whether a lease has been assigned without licence (//) ; or whether a defendant, entitled during widowhood (o), or liable to forfeiture of a legacy in case of marriage without consent (p), is married ; or to discover any matter which may subject a defendant entitled to any office or franchise to a quo warranto ( t0 fo a r bm ( l ) Where a biU is filed b y a husband and wife, and the cause want of parties. j s h ear( ] on f ar ther directions, after the death of the wife, in the absence of her personal representative, and afterwards her husband dies, and thereupon a bill of revivor is filed against his personal representative, a demurrer to such a bill on the ground that the personal representative of the wife is not before the court will be overruled ; for the plaintiff in the bill of revivor is entitled to have the suit placed in the same plight and condition in which it was at the time of the abatement in respect of which the revivor is sought ; and if the proceedings were then imperfect, it is not the office of a demurrer to a bill of revivor to correct the imperfection. Metcalfe v. Metcalfe, 1 Keen, 74 (2) Only six weeks are allowed by the ICth order of May, 1845, art. 22. S. II. P. I.] DEMURRERS. 239 brought, the defendant may by demurrer show cause against the revival (//) . Indeed though the defendant does not demur, yet if the plaintiff does not show a title to revive, he will take nothing by his suit at the hearing (o). A demurrer will also in many cases hold to a bill of revivor brought singly for costs (p) ; the court in general not permitting a suit to be re- vived for that purpose only, except where the costs have been actually taxed before the abatement happened (q) (1). If a supplemental bill is brought upon matter p 1 emeJSS 8 bii£! p * arising before the filing of the original bill, where the suit is in that stage of proceeding that the bill may be amended, the defendant may demur (r). If a bill is brought as a supplemental bill upon matter arising subsequent to the time of filing the original bill against a person who claims no interest arising out of the matters in litigation by the former bill, the defendant to the bill thus brought as a supplemental 0) 3 P. Wms. 348. 2 Meriv. 1 13 ; 3 Madd. 377. (o) 3 P. Wms. 348. (r) Baldwin v. Mackown, 3 \p) 2 Eq. Ca. Ab. 3 ; 2 Ves. Atk. 817; 2 Madd. R. 387 ; Jun. 315 ; 10 Ves. 572 ; Jupp or, if the matter should have v. Geering, 5 Madd. 375. arisen subsequently, but be (q) Hall v. Smith, 1 Bro. immaterial, the defendant may C. C. 438 ; Morgan v. Scuda- also demur. See Milner v. more, 2 Ves. Jun. 313 ; S. C. 3 Lord Ilarewood, 17 Ves. 144 ; Ves. 195 ; Lowten v. Mayor Adams v. Dowding, 2 Madd. and Commonalty of Colchester, R. 53 ; Ibid. 388. (1) A bill of revivor cannot be filed merely for costs bv the Bill of revivor tor . f costs. personal representative of a defendant to a bill which has been dismissed with costs. Andrews v. Lockwood, 15 Law J. 285, V. C. E. 240 DEMURRERS. [CHAP. II. bill may also demur ; especially if the bill prays that he may answer the matters charged in the former bill. These, however, are grounds of demurrer [203] arising rather from the plaintiff's having mistaken his remedy, than from his being without remedy. craw-Mite. A cross-bill having nothing in its nature different from an original bill, with respect to which demurrers in general have been considered, except that it is occasioned by a former bill, there seems no cause of demurrer to such a bill which will not equally hold to an original bill. And a demurrer for want of equity will not hold to a cross-bill filed by a defen- dant in a suit against the plaintiff in the same suit touching the same matter. For being drawn into the court by the plaintiff in the original bill , he may avail himself of the assistance of the court, without being put to show a ground of equity to support its jurisdiction (.s), a cross-bill being generally considered as a defence (t) (1). tiieabyt^direc! A bill filed by the direction of the court for the purpose of obtaining its decree touching some matter not in issue by a former bill, or not in issue between the proper parties, does not seem liable to any pecu- liar cause of demurrer. Indeed, being exhibited by (*) Boble v. Potman, Har- (t) 3 Atkyns, 812. dres, 160; 1 Eden. R. 190. (1) By the 42nd order of August, 1841, "Where a defendant in equity files a cross-bill for discovery only against the plaintiff in equity, the answer to such cross-bill may be read and used by the party filing such cross-bill, in the same manner, and under the same restrictions, as the answer to a bill praying relief may now be read and used." S. II.P. L] DEMURRERS. 241 order of the court upon hearing of another cause, there is little probability that such a bill should be liable, in substance, to any demurrer. The constant defence to a bill of review for error Demurrers to miu of review, and apparent upon a decree has been said to be by plea KffortheMme nature. of the decree, and demurrer against opening the en- rolment (it). There seems, however, no necessity for pleading the decree, if fairly stated in the bill : the [204] books of practice contain the forms of a demurrer only to such a bill, and there are cases accord- ingly O). On argument of a demurrer to a bill of review where several errors in the decree have been assigned, if the plaintiff should prevail only in one, the de- murrer must be over-ruled, as one error will be suffi- cient to open the enrolment ; and on argument of a demurrer to a bill of review for error apparent in the decree, the court has ordered the defendant to answer, saving the benefit of the demurrer to the hearing, and on the hearing has finally allowed the demurrer (?/). (u) Dancer v. Evett, 1 Vera. cree, but to have demurred 392 ; Smith v. Turner, 1 Vera. alone to the bill of review. 273; 2 Atk. 534. See also And in Helbut and Philpot, in 3 Atkyns, 627 ; O'Brien v. the House of Lords, 1 1 March, O'Connor, 2 Ball & B. 14(3. 1/25, the defendant demurred (x) Slingsby v. Hale, 1 Ca. alone to a bill of review, and in Cha. 122 ; IP. Wras. 139 ; the demurrer was allowed, and and sec Jones v. Kenrick, 5 Bro. the order affirmed by the Lords ; P. C. 244 ; and ib. 248 ; in and see Denny v. Fihnore, 1 which case the defendant ap- Vera. 135 ; 5. C. 2 Freeman, pears to have pleaded the de- 1 72. cree enrolled in bar of the first (y) Denny v. Filmer, 2 Free- bill, which did not state the dc- man, 172. R 242 DEMURRERS. [CHAP. II. Where the decree has been pronounced above twenty years, the length of time is good cause of demurrer (z). Where any matter beyond the decree is to be of- fered against opening the enrolment, that matter must be pleaded (a) ; and it has been said that length [205] of time must be pleaded to a bill of review, and that otherwise the plaintiff will not have the benefit of exceptions, as infancy, coverture, or the like (/>). A bill of review upon the discovery of new matter, and a supplemental bill of the same nature, being exhibited only by leave of the court (1), the ground of the bill is generally well considered before it is brought ; and therefore in point of substance it can rarely be liable to a demurrer. But if brought upon new matter, and the defendant should think that matter not relevant, probably he (z) Edivards\. Carroll, 2Bro. length of time ; and it should P. C. 98, Toml. Ed. ; and see seem that if the plaintiff can Smythe v. Clay, 4 Bro. C. C. allege any exception to a posi- 539, n. ; S. C. \ Bro. P. C. tive rule he ought to do so by 453, Toml. Ed. ; S. C. Ambl. his bill. In Lytton v. Lytton, 645. 4 Bro. C. C. 441, the exception (a) See HartweU v. Town- was stated in the bill, and ad- send, 2 Bro. P. C. 107, Toml. mitted by the answer. If length Ed. of time must be pleaded, yet (h) Gregor v. Mohsworth, the plaintiff can have no benefit 2 Ves. 109. See, however, of exception not stated in the Sherrington v. Smith, 2 Bro. bill, unless it should be required P. C. 62, Toml. Ed. ; Gorman that the plea should be sup- v. M'Cullock, 5 Bro. P. C. 597, ported by averments negativing Toml. Ed. : see 3 P. Wms. 287, every rwstible exception, to note B, and post, p. 251, as to which there seem to be great a demurrer on the ground of objections. (1) See note (1) p. 2?:-!. S. II. P. I.] DEMURRERS. 243 might take advantage of it by way of demurrer, although the relevancy ought to be considered at the time leave is given to bring the bill (b) . Bills in the nature of bills of review do not appear subject to any peculiar cause of demurrer, unless the decree sought to be reversed does not affect the in- terest of the person filing the bill. If upon argument of a demurrer to a bill of review the demurrer is allowed, the order allowing it, being enrolled, is an [206] effectual bar to another bill of review 7 (c) . If upon the face of a bill to carry a decree into £ e c ^ e Jecr ees 118 , • ,i i * j • /v* i i '1.L.L into execution. execution the plaintiff appears to have no right to the benefit of the decree, the defendant may demur. Bills in the nature of bills of revivor and supple- pemwrewtobuis ±r in the nature of ment are liable to objections of the same sort as may and su f P ^ement. be made to the kinds of bills of whose nature they partake. In addition to the several particular causes of de- Demurrers for •l irregularity. murrer applicable to particular kinds of bills, it may be observed that any irregularity in the frame of a bill of any sort may be taken advantage of by de- murrer. Thus if a bill is brought contrary to the usual course of the court, a demurrer will hold (d)(1). (b) 2 Atkyns, 40. See what 135, and ib. 417 ; Pitt v. Earl is stated in regard to a mere of Arylass, ib. 441 ; Woots v. supplemental bill, 17 Ves. 148, Tucker, 2 Vern. 120. 149 ; 2 Madd. R. 61 : and see (d) SeeTTortley v. Birkhead, above, 23!), note if). 3 Atk. 809 ; S. C. 2 Ves. 571 ; (c) See Dentil/ v. Filmer, 2 Lady Granville v. Ramsdeti, Ca. inCha. 133 ; S.C.I Vern. Bunb. 56 ; Earl of Darlinyton (1) For an instance of a demurrer to a bill on the ground of its having been filed without leave of the court, see Bainbriyye v. Baddi'ley, 10 Jur. 765. r2 244 DEMURRERS. [CHAP. II. As where after a decree directing incumbrances to be paid according to priority, the plaintiff, a cre- ditor, obtained an assignment of an old mortgage, and filed a bill to have the advantage it would give him by way of priority over the demands of some of the defendants (e) . This was a bill to vary a decree ( 1 ) , and yet was neither a bill of review, nor a bill in v.Pidteney,3Ves. 386; Fletcher v. Duke of Beaufort, 1 Russ. v. Tollett, 5 Ves. 3 ; Offilviev. R - 34 ^- Heme, 13 Yes. 5G3 ; Maule 0) 3Atk.811. se?wng m tovary a 1 0) ^ ier e a bill is filed against executors and the supposed decree. representative of a deceased executor, praying for an adminis- tration of the testator's estate, and impeaching an account alleged to have been fraudulently settled between the surviving executors and the deceased executor ; but it appears, at the hear- ing, that the representative of the deceased executor is not a party to the suit ; and the decree therefore directs that the account settled with the deceased executor shall not be disturbed ; and then a bill, purporting to be a supplemental bill, is filed, bringing before the court the personal representative of the deceased exe- cutor and the assignees of a bankrupt executor, a demurrer to so much of the bill as seeks for an account of the receipts of the deceased executor, even though put in by the assignees of the bankrupt executor, will be allowed ; because, to that extent, the bill is not supplemental, but is an original bill seeking to vary the former decree. Wilson v. Todd, 1 My. & C. 42. But where a testator directs his estate to be converted, and invested for certain persons for life, with remainder over ; and the executors, instead of converting, permit the successive tenants for life to enjoy the leasehold part of his estate until the expiration of the terms ; and the remaindermen file a bill against the repre- sentative of the executors after the death of the tenants for life for an account and distribution ; but in consequence of represen- tations made by the representatives of the executors in ignorance of the circumstances, the remaindermen waive an account, and a decree is made for distributing the residue ; and afterwards the remaindermen discover the breach of trust in respect of the leaseholds, and file a supplemental bill for relief, the court, not- S. II. P. I.J DEMURRERS. 245 nature of a bill of review, which are the only kinds of bills which can be brought to affect or alter a de- cree (/), unless the decree has been obtained by [207 j fraud (g). So if a supplemental bill is brought against a person not a party to the original bill, praying that he may answer the original bill, and no reason is suggested why he could not be made a party to the original bill by amendment, he may de- mur^/). If an irregularity arises in any alteration of a bill by way of amendment, it may also be taken advnatage of by demurrer. As if a plaintiff amends his bill, and states a matter arisen subsequent to the filing of the bill (/), which consequently ought to be the subject of a supplemental bill, or bill of revivor. But if a matter arisen subsequent to the filing of the bill, and properly the subject of a supplemental bill is stated by amendment, and the defendant answers the amended bill, it is too late to object to the irregularity at the hear- ing (k). For as the practice of introducing by sup- plemental bill matter arisen subsequent to the insti- (/) Arg d0 3 Atk. 81 1 ; Read R. 25 ; 13 Ves. 564. v. Hambeij, 1 Ca. in Cha. 44 ; (Ji) Baldwin v. Mackown, 3 S.C.2 Freem. 171); 13 Ves. Atk. 817. 564. (i) 1 Atkyns, 291 ; Pilking- O) Arg d ° 3 Atk. 811; Gal- ton v. Wignall, 2 Madd. 240. ley v. Baker, Ca. T.Talb. 199; (/) Belchier against Pearson, Manatonv.MolesworthylYAcn. at the Rolls, 13 July, 1/82. withstanding the former decree, Mill order the representatives of the executors to pay what was the value of the lease at the time of the testator's death. And this will he the case, even though the title to the lease was had, if no advantage was taken of the badness of the title by the owners of the property. Mehrtens v. Andrews, 3 Beav. 72. 246 DEMURRERS. [CHAP. II. tution of a suit has been established merely to pre- serve order in the pleadings, the reason on which it is founded ceases when all the proceedings to obtain the judgment of the court have been had without any inconvenience arising from the irregularity (k) . [208] Having thus considered the several grounds of de- murrer, it may be proper to observe some particulars with respect to the frame of demurrers, the manner in which they are offered to the court, and the manner in which their validity may be determined, or their consequences avoided. counsel.' 6 of A demurrer must be signed by counsel (/) ; but is put in without oath, as it asserts no fact, and relies merely upon matter apparent upon the face of the fort e i S m a e S to demuJ, bill (m) . It is therefore considered, that the defendant and as to over- , ,. n -, . 1 • i j /» j i ruling a demurrer may by advice oi counsel, upon the sight of the by answer or plea. J J <-> bill only, be enabled to demur thereto (;/) ; and for this reason it is always made the special condition of an order giving the defendant time to demur, plead, or answer to the plaintiff's bill, that he shall not demur alone. Whenever, therefore, the defend- ant has obtained an order for time, and is afterwards advised to demur, he must also plead to or answer some part of the bill (p). It has been held, that (k) See above, p. 239. that his case does not require (I) See Ord. in Cha. 1 72, the usual indulgence to the ex- Ed. Bea. tent mentioned in the text ; and (m) 2 Ves. 247 ; 1 Madd. the order would be drawn up R. 236. accordingly, see 10 Ves. 448; («) Ord in Cha. 172, Ed. 1 Ves. & B. 186 ; and he would Bea. be bound to answer, 10 Ves. (n) If the defendant should 446 ; but a plea would be con- apply for time to answer gene- sidered within the meaning of rally, it would be presumed this term, see Roberts v. Hart- S. II. P. I.] DEMURRERS. answering to some fact immaterial to the cause, and denying combination (o) , do not amount to a com- pliance with the terms of such an order ; and there- fore, upon motion, a demurrer accompanied by such an answer has been discharged (p). This rule has been probably established under a notion that time is not necessary to determine whether a defendant may demur to a bill or not, and a supposition that a demurrer may be filed merely for delay. But whe- ther a bill may be demurred to is sometimes a sub- ject of serious and anxious consideration ; and the preparation of a demurrer may require great atten- tion, as if it extends in any point too far it must be overruled. Great inconvenience therefore may arise from a strict adherence to this rule. For it often 247 [209] ley, 1 Bro. C. C. 56 ; Be Min- kuitz v. Udney, 16 Ves. 355 ; Barber v. Craivshaw, 6 Madd. 284, unless, perhaps, it were of a description not recjuired to be put in upon oath, see Phillips v. Gibbons, 1 Ves. & B. 184 ; and see anon, 2 P. Wms. 464 ; 3 P. Wins. 81 ; but the defendant would not be allowed to demur alone, Kenrich v. Clayton, 2 Bro. C. C. 214; S. C. Dick. 685 ; or even to answer and demur, Taylor v. Mi/ner, 10 Ves. 444 ; Mann v. King, 18 Ves. 297, except under peculiar circumstances, and upon leave granted by the court, on a spe- cial application for that purpose, see Bruce v. Allen, 1 Madd. R. 556 ; Sherwood v. Clark, 9 Pri. Ex. R. 259. («) As to the necessity of de- nying a general charge of com- bination, see supra, p. 44. The charge of combination, in order to be material, with the view of preventing a demurrer for want of equity by parties not inter- ested, must be specific. Smith v.Snoiv, 3 Madd. 10. . (])) Stephenton v. Gardiner, 2 P. Wms. 286 ; 4 Vin. Abr. 442 ; Lee v. Pascoe, 1 Bro. C. C. 78 ; and see Kenrick v. Clayton, 2 Bro. C. C. 214 ; S. C. Dick. 685 ; Lansdown v. Elder ton, 8 Ves. 526 ; Tomkin v. Lethbridge, 9 Ves. 178; 10 Ves. 446, 447, 448; 2 Ves. & B. 123. 248 DEMURRERS. [ChAP. II. happens that a defendant cannot answer any material part of the bill without overruling his demurrer ; it being held that if a defendant answers to any part of a bill to which he has demurred, he waives the benefit of the demurrer (q) (1) ; or if he pleads to any part of [210] a bill before demurred to, the plea will overrule the demurrer (r) . For the plaintiff may reply to a plea or answer, and thereupon examine witnesses, and hear the cause ; but the proper conclusion of a demurrer is to demand the judgment of the court whether the defendant ought to answer to so much of the bill as the demurrer extends to, or not (s). The condition, that the defendant shall not demur alone, ought therefore, perhaps, to be considered li- berally ; and it has been formerly said, that the court will not incline to discharge a demurrer if the de- fendant denies combination only where he cannot answer further without overruling his demurrer (t) . Indeed any material answer must in many cases over- rule the demurrer ; so that giving a defendant time to demur, plead, or answer, not demurring alone, is often in effect giving leave to do a thing, but clogging the permission with a condition which makes it nugatory: and though the rule was first adopted upon a reason- (q) See Hester v. Weston, Atk. 282. 1 Yes. 463 ; Jo?ies v. Earl of (s) 3 P. Wms. 80. Strqfurd,3~P.V?ms.79 ; Abra- (t) See Done v. Peacock, haia v. Dodffson, 2 Atk. 157. 3 Atk. 72G : see above, p. 209, (/•) Dormer v. Fortescue, 2 note (b). (1) By the 3/th order of August, 1841, "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." S. II. P. I.] DExMURRERS. 249 able ground to prevent unnecessary delay, it may, if strictly observed, contradict the maxim, that a court of equity ought not for form sake to do a great in- justice (t). However the modern practice is according to the original strictness of the rule (u) ; and it may be better, where the case requires it, to relax the rule upon special application to the court (x) than to [2 1 1 ] permit it to be evaded (y) . Indeed in some cases an answer to any part of the bill may overrule the de- murrer ; for if the ground of demurrer applies to the whole bill, the answering to any part is inconsis- tent (z) ; and therefore when the ground of demurrer was the general impropriety of the bill, and that the defendant ought not therefore to be compelled to answer it, his answer to an immaterial part, in com- pliance with the order for time which he had obtained, overruled his demurrer (a). As a demurrer relies merely upon matter apparent ^mission by J i ax demurrer of the on the face of the bill, so much of the bill as the ^SuHS^t demurrer extends to is taken for true (b) (1); thus if (t) 1 Ves. 247. by way of answer will satisfy (m) Attorney Gen. v.Jenner, the terms of the order; but in Ch. 9 Nov. 1/38; Sir John that the court considers the Dyneley Goodere against Dean practice in this respect to be and Chapter of Worcester, in guarded by the honour of Exchequer, 1777. Lee against counsel. See Tomkin v. Leth- Pascoe, in Chan. East. 1780; bridge, 9 Ves. 178; 11 Ves. 1 Bro. C. C. 77 ; 8 Ves. 527; 73. 10 Ves. 447: see above, pp. 24G, (s) Tiddx. Clare, Dick.712. 247, and notes (o), (p) and (1 demurrer extends, is taken to be as stated in the bill ; and if the defendant demurs to relief only, the whole case made by the bill to ground the relief prayed is considered as true. A demurrer is there- [212] fore always preceded by a protestation against the truth of the matters contained in the bill ; a prac- tice borrowed from the common law, and probably intended to avoid conclusion in another suit. The admission by a demurrer of the truth of the ESSASTob facts stated in the bill has been considered as one eTAe madXy demurrer. reason why a defence founded on length of time, though apparent on the face of the bill, without any circumstance stated to avoid its effect, cannot gene- rally be made by demurrer (c) (1 ) . Upon a demurrer to a bill brought to impeach transactions which had passed twenty-eight years before the bill was filed, on the ground of fraud, without any sufficient cause shown for not instituting the suit sooner, it was said by the court that the party who demurs admits every thing well pleaded, in manner and form as (e) But, if the plaintiff's after quiet possession by the case be so stated in the bill as mortgagee of more than twenty to show that his claim is barred years, (see Agyas v. Picker ell, by lapse of time, and no ground 3 Atk. 225; and see 2 Yes. of exception, as infancy, or the Juu. 84,) the defendant may like, be alleged therein, it seems demur. Beckford v. Close, cited that, contrary to the opinion of 3 Bro. C. C. 644 ; 4 Yes. 476, Lord Hardwicke, expressed in ib. 479 ; Foster v. Hodgson, a case in which the suit was 19 Yes. 180. for redemption of a mortgage, (1) A defendant may avail himself of the statute of limitations by demurrer, when the application of the statute to the suit appears on the face of the bill. Hoare v. Peck, 6 Sim. 51. 252 DEMURRERS. [CHAP. II. pleaded ; and a demurrer ought therefore in a court of law to bring before the court a question of law merely ; and in a court of equity, a question of law or equity merely. The demurrer therefore must be taken to admit the whole case of fraud made by the bill ; and the argument to support it must be, not that a positive limitation of time has barred the suit, [213] for that would be a pure question of law, but that from long acquiescence it should be presumed that the fraud charged did not exist, or that it should be intended that the plaintiff had confirmed the trans- action, or had released or submitted upon such con- sideration as to bar himself from the general equity stated in the bill. This must be an inference of fact, and not an inference of law ; and the demurrer must be overruled, because the defendant has no right to avail himself by demurrer of an inference of fact, upon matter on which a jury in a court of law w T ould collect matter of fact to decide their verdict, if submitted to them, or a court would proceed in the same manner in equity. What limitation of time will bar a suit where there is no positive limita- tion, or under what circumstances the lapse of time ought to have that effect, must depend on the facts of the particular case, and the conclusion must be an inference of fact, and not an inference of law (//), and therefore cannot be made on a demurrer (e) . (//) See Cuthbert v. Creasy, p. 241, as to demurrers to bills 6 Madd. 189. of review. In Tobin v. Beck- () North x. Earl and Coun- (q) And the court upon al- tess of Strqfi'ord, 3 P. Wms. lowing a demurrer, will some- 148. times give the plaintiff leave (o) Anon. Mosely, 301 ; 1 to amend; see Mayor, ^c. of Yes. Jim. 448 ; Anon. 9 Yes. London x. Levy, 8 Ves. 398 ; 221 ; 1 Aim. Cur. Cane. 565 ; Edwards x. Edwards, 6 Madd. 1 Harrison, Chan. Pract. 39. 255 ; and it seems probable (j)) See above, p. 15, note (t); that, even after allowance, the Lord Coningsby v. Sir Jos. court might be induced, under S. II. P. I] DEMURRERS. 25J leaves any part of a bill untouched, the whole may be amended notwithstanding- the allowance of the demurrer; for the suit in that case continues in [216] court, the want of which circumstance seems to be the reason of the contrary practice where a demurrer to the whole of a bill has been allowed. A demurrer being frequently on matter of form is not in general a bar to a new bill ; but if the court upon a demurrer has clearly decided upon the merits of the question between the parties, the decision may be pleaded in bar of another suit (/*). A demurrer being always upon matter apparent ^f 98ity for " upon the face of the bill, and not upon any matter alleged by the defendant, it sometimes happens that a bill, which, if all the parts of the case were disclosed, would be open to a demurrer, is so art- fully drawn as to avoid showing upon the face of it any cause of demurer. In this case the defendant is compelled to resort to a plea, by which he may r ^ ^/ allege matter which if it appeared on the face of the x bill would be good cause of demurrer. For in many cases what is a good defence by way of plea is also good as a demurrer, if the facts appear suffi- ciently by the bill (.s) . And if a demurrer should llmmw. " be overruled on argument because the facts do not sufficiently appear on the face of the bill, defence may be made by plea, stating the facts necessary to bring the case truly before the court, though it has been said some circumstances, to set the munvrs to bills of review cited cause on foot again, and to au- above, p. 242, note (//). thorize an amendment of the (s) See Hetley, 139. But see bill. See 11 Yes. 72. 3 Atk. 226. (r) See the cases upon de- > 256 DEMURRERS. [Chap. II. [217] Demurrer after a plea. Second demurrer. that the court would not permit two dilatories (t). And after a plea overruled, it is said that a de- murrer was allowed, bringing before the court the same question in substance as was agitated in argu- ing the plea (it). But after a demurrer has been overruled, a second demurrer will not be allowed (.r) ; for it would be in effect to rehear the case on the first demurrer ; as on argument of a demurrer any cause of demurrer, though not shown in the de- murrer as filed, may be alleged at the bar, and if good will support the demurrer (y) . (t) Hudson v. Hudson, in that a defendant who submits Chan. 23 April, 1/34. Re- ported, 1 Sim. & Stu. 512, note ; Rowley v. Eccles, 1 Sim. & Stu. 511. (u) E. India Company v. Campbell, 1 Ves. 246. But it may be doubted whether this case has not been mistaken by the reporter, and whether the question was not on exceptions toan answer. See 2Ves. 49 1,492. (x) See 2 Bro. C. C. 66 ; and see above, p. 253, note (I). Where, however, a demurrer was informal in its frame, but good in substance, it was over- ruled, with liberty to the de- fendant to file another. See Devon sher \ T . New enham, 2 Sch. & Lefr. 199. And, in conse- quence of the modern doctrine, to answer must in general an- swer fully (1), see below, Ch. 2, sect. 2, part 3, this court, in some instances, on over- ruling a demurrer to discovery, instead of giving the defendant liberty to insist by answer that he is not bound to make the disclosure required, will give him liberty to file another less extensive. See Thorpe v. Ma- cauley, 5 Madd. 218. (y) As to demurrers ore tenus, see Pyle v. Price, 6 Ves. 779 ; 8 Ves. 408 ; Bummer v. Corporation of Chippenham, 14 Ves. 245; 17 Ves. 216; Att. Gen. v. Moses, 2 Madd. 294 ; 1 Swanst. 288 ; Knyev. Moore, 1 Sim. & Stu. 61 ; Hook v. Dor- man, 1 Sim. & Stu. 227. (1) By the 38th order of August, 1841, "a defendant shall be at liberty by answer to decline answering any interrogatory or part of an interrogatory, from answering which he might have protected himself by demurrer ; and that 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." 257 CHAPTER II. [218] Section II. — Part II. Of Picas. In treating of pleas the same order may be conve- o/ d ) ".° ftrea,1!,p niently pursued as has been already used in treat- ing of demurrers. Pleas to original bills will there- fore be first considered, and under that head the nature of pleas in general, and the principal grounds of plea to every kind of bill, will necessarily be noticed ; the distinct pleas applicable peculiarly to the several other kinds of bill will be next men- tioned ; and in the third place the frame of pleas in general, and the manner in which their validity may be determined, will be considered. Pleas to original bills will also be considered under the two heads of pleas to relief, and pleas to discovery only, and these will necessarily involve the consideration of pleas to bills of discovery merely. A demurrer has been mentioned to be the proper whenapieaor 1 L answer is nccos- mode of defence to a bill when any objection to sary " it is apparent on the bill itself, either from matter contained in it, or from defect in its frame, or in the case made by it. When an objection to a bill is not apparent on the bill itself (z), if the defendant means to take advantage of it, he ought to show to the [-19] 0) See Billing v. Flight, 1 Madd. R. 230. S 258 pleas. [Chap. II. court the matter which creates the objection, either by answer, or by plea, which has been described as a special answer, showing or relying upon one or more things as a cause why the suit should be either dis- missed, delayed or barred («). The defence proper for a plea is such as reduces the cause, or some part of it, to a single point {b), and from thence creates a bar to the suit, or to the part to which the plea ap- plies (c). It has been observed, that the end of a plea is to save to the parties the expense of an examination of witnesses at large ; and that there- fore it is not every good defence in equity that is good as a plea: for that where the defence con- sists of a variety of circumstances, there is no use of a plea, as the examination must still be at large ; and the effect of allowing a plea would be, that the court would give judgment on the circumstances of the case before they were made out by proof (d) . Different kinds of Pleas have been generallv considered as of three pleas. sorts ; to the jurisdiction of the court ; to the person of the plaintiff or defendant ; and in bar of the suit. As they have been usually arranged under these heads, it may be convenient to consider them in some degree with reference to that arrangement ; but the order before observed in treating of demurrers may be at the same time pursued ; and pleas may [220] be considered with reference to the several grounds (a) Prac. Reg. 324 ; Wy. Ed. (e) 2 Bligh, P. C. 6 14. 2 Sch. & Lefr. 725 ; 1 Madd. (d) Chapman v. Turner, 1 R. 194. Atk. 54 ; S. C, 1 Harr. Chan. (b) 1 Atk. 5 1 ; 15 Yes. 82, Prac. 356 ; 2 Bligh, P. C. 614. 377. S. II. P. II.] PLEAS. 259 already mentioned on which defence may be made to a bill. The objections to the relief sought by an original S toorigiDal bill which can be taken advantage of by way of plea, are nearly the same as those which may be the subject of demurrer; but they are rather more numerous, because a demurrer can extend to such only as may appear on the bill itself, whereas a plea proceeds on other matter. The principal are, I. That the subject of the suit is not within the jurisdiction of a court of equity ; II. That some other court of equity has the proper jurisdiction ; III. That the plaintiff is not entitled to sue by reason of some personal disability ; IV. That the plaintiff is not the person he pretends to be, or does not sustain the character he assumes ; V. That the plaintiff has no interest in the subject, or no right to institute a suit concerning it ; VI. That he has no right to call on the defendant concerning it ; VII. That the defendant is not the person he is alleged to be, or does not sustain the character he is alleged to bear ; VIII. That the defendant has not that interest in the subject which can make him liable to the demands of the plaintiff ; IX. That for some reason, founded on the substance of the case, the plaintiff is not entitled to the relief he prays ; [X. That the defendant has an equal claim to the protection of a court of equity to defend his posses- sion, as the plaintiff has to the assistance of the court to assert his right] ( 1 ) . Of these, the second is (1) The passage within the brackets is inserted, and the fol- lowing numerals are altered from X. and XI. to XI. and XII., in s2 260 pleas. [Chap. II. the plea generally termed a plea to the jurisdiction of the court ; and the third, the fourth, and the seventh, are treated as pleas to the person of the [221] plaintiff and defendant ; the others are considered as pleas in bar of the suit. XI. The deficiency of a bill to answer the purposes of complete justice may also be shown by plea, which may be considered as in bar of the suit, though perhaps a temporary bar only ; XII. The impropriety of unnecessarily mul- tiplying suits may be the subject of plea, which is also in bar of the suit : but the inconvenience which may arise from confounding distinct matters in the same bill, as it must be apparent on the bill itself, unless veiy artfully framed, can in general only be alleged bv demurrer. Jurisdic'Iiom Those pleas which are commonly termed pleas to the jurisdiction of the court do not dispute the rights of the plaintiff in the subject of the suit, or that they are fit objects of the cognizance of a court of equity, but simply assert that the court of chancery is not the proper court to take cognizance of those rights. Pleas to the person of the plaintiff also do not dis- pute the validity of the rights which are made the subject of the suit, but object to the plaintiff that he is by law disabled to sue in a court of justice, or cannot institute a suit alone ; or that he is not the person he pretends to be, or does not sustain the character he assumes. Pleas in bar are commonly described as allegations of foreign matter, whereby, supposing the bill so far as it is not contradicted by order to make this part agree with what occurs at original pages [2/4] and [280]. I'leas to the person. Pleas in bar. S. II. P. II.] pleas! 261 the plea (e) to be true, yet the suit, or the part of it to which the plea extends, is barred (/). But this description perhaps does not comprise every kind of plea, or does not mark the distinctions between the [222] different kinds with sufficient accuracy. I. The general objects of the jurisdiction of a court i. want of juri*. of equity, and the manner in which a want of juris- diction may be alleged by demurrer, when a bill does not propose to attain any of those objects, or it is apparent on the face of it that none can be attained by it, have been already mentioned. A case which is not really such as will give a court of equity juris- diction cannot easily be so disguised in a bill as to avoid a demurrer ; but there may be instances to the contrary ; and in such cases it should seem a plea of the matter necessary to show that the court has not jurisdiction of the subject, though perhaps un- avoidably in some degree a negative plea, would hold(«). Thus, if the jurisdiction was attempted to be founded on the loss of an instrument, where, if the defect arising from the supposed accident had not happened, the courts of ordinary jurisdic- tion could completely decide upon the subject, per- haps a plea, showing the existence of the instrument, and that it was in the power of the plaintiff to obtain a production of it, ought to be allowed, though in- stances of this sort of plea may not occur in practice. For it seems highly unreasonable that a plaintiff by alleging a falsehood in his bill should be permitted (/) 1 Yes. 205. 1 Yern. 24(5. (5) Att. Gen. v. Talbot, 3 (y) Griffff'* case, Hutton, Att. 062 ; S. C. 1 Yes. 78. S. II. P. II.] PLEAS. 265 of the visitor's authority must be averred, and it must also be averred that he is able to do complete justice (c) . And where there is a trust created, the visitor having no power to compel performance of [226] the trust, relief must be had in the king's courts of general jurisdiction (7/). III. In respect to the person of the plaintiff, it [^'pStf! ,y of may be shown that he is disabled to sue, as being, 1, outlawed; or 2, excommunicated; or 3, a popish recusant convict ; or 4, attainted in a premunire, or of treason or felony ; or 5, an alien ; or it may be shown, 6, that the plaintiff is incapable of insti- tuting a suit alone. A plea of this kind is in the nature of a plea in abatement of the suit. 1 . A person outlawed is disabled from suing in a i. outlawry, court of justice, and if a bill is filed in his name the defendant may plead the outlawry, which, whilst it remains in force, will delay the proceeding (e). The record of the outlawry, or the capias thereupon, must be pleaded sub pale sigilli, and is usually an- nexed to the plea (f) . A plea of outlawry, in a suit And see 1 Yes. 472, 474, 475 ; ib. 37, the main fact appearing 2 Ves. 328. upon record, Ord. in Cha. Ed. (c) 1 Ves. 474. Bea. 23 ; 2 Ves. & Bea. 357; (d) Green v. Rutherforth, and a mere averment of iden- 1 Ves. 462; and see 4 Bro. C.C. tity being considered sufficient, 1G7 ; 2 Ves. Jun. 47 ; 13 Ves. 2 Vern. 199 ; and see 19 Ves. 533 ; Ex parte Berk/tamstead 83. And such a plea may be School, 2 Ves. &B. 134. filed by a defendant who is in (e) Apleaof outlawry may be contempt. JFatersx.C/iai/tocrs, filed without oath, 1 Ca. in Cha. 1 Sim. & Stu. 225. 258 ; Took y.Took, 2 Vern. 1 98 ; (/) Tothill, 54 ; Prac. Keg. Anon. 2 Freem. 143, Hovend. 327, Wy. Ed. ; Ord. in Cha. Ed. : but see Parrot v. Bowden, Ed. Bea. 27. And in a case 266 PLEAS. [Chap. II. [227] 2. Excommuni- cation. for the same duty or thing for which relief is sought by the bill, is insufficient according to the rule of law, and shall be disallowed of course, as put in for delay (g) . Otherwise a plea of outlawry is always a good plea so long as the outlawry remains in force (//) ; but if that shall be reversed, the plaintiff, upon pay- ment of costs, may sue out fresh process against the defendant, and compel him to answer the bill (i) . Outlawry in a plaintiff executor or administrator cannot be pleaded; for he sues in aider droit (k). It is equally insufficient if alleged in disability of a person named in a bill as the next friend of an infant plaintiff (/) , or in an information as a relator (;?z) . 2. The defendant may plead that the plaintiff is excommunicated (>/) d), which must be certified by in which the formality alluded to had been omitted, by mis- take of the clerk of the out- lawries, the plea was allowed to be amended, by annexing to it an office-copy of the exigent, or record of tbe outlawry. Waters v. Mayhew, 1 Sim. & Stu. 220. (g) See Philips v. Gibbons, 1 Ves. & Bea. 184; Ord. in Cha. Ed. Bea. 175. (A) Or. inCha.Ed. Bea. 1/5; 3 Bac. Abr. 761, Outlawry (3). (0 Ord. in Cha. Ed. Bea. 175 ; and see Peyton v '. Ayliffe, 2 Vera. 312. (k) Killigrew v. Killigrew, 1 Vera. 184; Prac. Reg. 326, Wy.Ed. (0 Prac. Reg. 327, Wy. Ed. (m) There is a case, Att.Gen. v. Heath, Prec. in Cha. 13, where a plea of outlawry, in disability of tbe person of a relator, is said to have been allowed in the duchy-court of Lancaster. But the relator seems to have sustained the character of plaintiff as well as of relator. See 3 Bac. Abr. 762, Outlawry (3) ; and see also Waller x. Hanger, 2 Bulstr. 134 ; Palmer s case, And. 30. (n) And this plea may be put in without oath, if the excom- munication appear upon record. Ord. in Cha. Ed. Bea. 26, and 2 Yes. & Bea. 327. (1) This disability has been removed by the stat. 53 Geo. III. c. 127, s. 3. S. II. P. II.] pleas. 267 the ordinary, either by letters patent containing a positive affirmation that the plaintiff stands excom- municated, and for what ; or by letters testimonial, reciting, " quod scruiatis registeriis invenitur" &c. Either of these certificates must be sub sigillo, and [228] so pleaded (o) . Excommunication is a good plea to an executor or administrator, though they sue in outer droit (p), but not to the next friend of an infant (q). This, like the plea of outlawry, ceases to be a bar when the disability is removed ; and therefore the plaintiff, purchasing letters of absolu- tion, may, as at law, sue out fresh process, and compel the defendant to answer the bill (r) . 3. By statute 3 Ja. I. c. 5, s. 11, every popish ». Popery, recusant convict is in many cases disabled to sue (1), in the same manner as a person excommunicated. The instances of a plea of conviction of recusancy have probably been rare, as no traces of any occur in the books of reports, nor does the form of the plea appear in the books of practice. If advantage should be attempted to be taken of this statute, the court would probably require the same aver- ments to support the plea as are necessary to a plea of the same nature at law (s) . This plea also ceases (0) Ord. in Cba. Ed. Bea. 27; Wy. Ed. It should here be men- Prac. Reg. 327, Wy .Ed. ; Tot- tioned, that by stat. 53 Geo. III. hill, 54. c. 127, excommunication is dis- (p) Co. Litt. 134, a. ; 2Bac. continued, except in certain Abr. 319 ; Excom. (D). cases therein specified. (q) Prac. Reg. 278. (*) 3 Bac. Abr. 780, Papists, (r) AmerswLegg, Choice Ca. (1). See Lord Petrex. Univ. in Cba. 164; Prac. Reg. 327, of Cambridge, Lutwyche, 1 100. (1) This disability has been removed by the stat. 31 Geo. III. c. 32. 2(>8 PLEAS. [Chap. II. to be a bar if the plaintiff by conforming removes the disability (t). Attainder. 4 \ plea, that the plaintiff is disabled from suing [229] being attainted, is equally rare(w)- It would pro- bably be likewise judged with the same strictness as if it was a plea at law (#) . Alienage. 5. There is little more to be found in the books upon the subject of a plea that the plaintiff is an alien (j/). An alien, who is not an alien enemy, is under no disability of suing for any personal de- mand (z) ; and an alien enemy may sue under some circumstances (a). A plea has been put in to a bill filed by an alien infidel not of the Christian faith, and was attempted to be supported upon the ground (t) See stat. 31 Geo. III. c. 32, s. 3, and valuable note to Co. Litt. p. 391, a. note (2), Hargr. & Butl. Ed. (u) See v. Bavies, 19 Ves. 81 ; and see Ex parte Bullock, 14 Yes. 452. And case on Irish statutes, Kennedy v. Baly, 1 Sch. & Lefr. 355. (a?) 2 Atk. 399. This kind of plea is not to be supported by oath, but can be proved by the record alone, v. Bavies, 19 Ves. 81 ; 2 Yes. & Bea. 327. (y) Burh v. Broivn, 2 Atk. 397 ; 2 Yin. Abr. 274, Alien (I); lBac. Abr. 83, Alien (D); Prac. Reg. 327, Wy. Ed.; East. Eutr. 252; Boltv.Att. Gen. 1 Bro. P. C. 421, Toml. Ed. ; Albretcht v. Sussman, 2 Yes. & Bea. 323 ; and see Ex parte Lee, 13 Yes. G4 ; and Ex parte Boussmalcer, 13 Yes. 71. (z) Ramkissenseat v. Barker, 1 Atk. 51. As to tbe incapa- cities of aliens to take and to hold certain property, see Co. Litt. 2, b., and notes in Hargr. & Butl. Ed. In such cases, it is presumed that a plea of mere alieuage, if properly framed, would be a sufficient defence. See Co. Litt. 129 {b) ; and Burk v. Brown, 2 Atk. 397. 0) 3 Burr. 1741 ; 1 Bac. Ab. 84, Alien (D) ; Doug. 619 ; Cornu and Blackburne, and the case of Anthon and Fisher, in Doug, note 1, p. 626. But the latter case was afterwards reversed in the Ex- chequer Chamber, 16th Nov. 1784. And see Evans v. Rich- ardson, 3 Meriv. 469. S. II. P. II.] PLEAS. 209 that the plaintiff was upon a cross-bill incapable of being examined upon oath. The plea was overruled without argument (a) . 6. If a bill is filed in the name of any person in- lan^ualu.^lV' capable alone of instituting a suit, as an infant, a P2301 married woman, or an idiot or lunatic, so found by inquisition, the defendant may plead the infancy, the coverture (//), or the inquisition of idiotcy or lu- nacy (c), in abatement of the suit. IV. A plea that the plaintiff is not the person iv. That the r x A plaintlffisnotthe he pretends to be or does not sustain the character Eli'L^cr he assumes, and therefore is not entitled to sue as the character he assumes. such (>e character ° *■ which he is al- leged to bear. (t) Tweddell v. Tweddell, 1786. 25th May, 1/84, in Chancery. (.r) See above, p. 184. (u) Same cause, 18th July, t2 defendant. 276 pleas. [Chap. II. which may be supported (.*■). It seems to have been [235] considered as more convenient for a defendant under these circumstances to put in an answer alleging the mistake in the bill, and praying the judgment of the court whether he should be compelled further to an- swer the bill (j/) , but this in fact amounts to a plea, though it may not bear the title ; and a plea has been considered as the proper defence (z) (1). EKLXuh? VIII. If a defendant has not that interest in the subject of a suit which can make him liable to the demands of the plaintiff (2) , and the bill alleging that he has or claims an interest avoids a demurrer, he may plead the matter necessary to show that he has no interest (a) , if the case is not such that by a general disclaimer he can satisfy the suit (b). Thus, 0) Prac. Reg. 326 ; Wy. Ed. (z) 1 Yes. Jun. 292, and see And see Griffith v. Bateman, ibid. p. 294, note. Finch R. 334. (a) Plummer v. May, 1 Yes. (y) Gary Rep. 6 1 ; Prac. Reg. 42G. 327,Yfy.Ed; Att. Gen. x. Lord (u) See the case of Turner Jlotham, 1 Turn. R. 209. See v. Robinson, 1 Sim. & Stu. 3. below, Chap. II. sect. 2, part 3. Plea that the de- ( 1 ) "Where a creditor of a testator files a bill stating that the ecutor. defendant is the executor, and had proved the will, and that he sets up a voluntary assignment made by the testator to him ; and charging that whether he has proved the will or not, he has taken possession of the personal estate, and is accountable for the same ; and praying that the deed may be declared to be void, and that an account may be taken of the personal estate come to the hands of the defendant ; a plea that the defendant is not exe- cutor is a good plea to the whole bill. Hill v. XeaJe, 5 Law J. (O. S.) 144, V. C. Plea of a bad title (2) A plea of a defective title by a vendor to a bill filed by a by a vendor. , * purchaser for a specific performance is bad. Thomas v. Bering, 4 Law J. (N. S.) 149, M. R. S. II. P. II.] PLEAS. 277 where a witness to a will was made a defendant to a bill brought by the heir at law to discover the circumstances attending the execution, and the bill contained a charge of pretence of interest by the defendant, though a demurrer for want of interest was overruled because it admitted the truth of the charge to the contrary in the bill, yet the court de- clared an opinion that a defence might have been made by a plea (c) . IX. Though the subject of a suit may be within [^361 the jurisdiction of a court of equity, and the court of JfthT^ifef otle chancery may have the proper jurisdiction ; though the plaintiff maybe under no personal disability, and may be the person he pretends to be, and have a claim of interest in the subject, and a right to call on the defendant concerning it, and the defendant may be the person he is stated to be, and may claim an interest in the subject which may make him liable to the plaintiff's demands, with respect to which circumstances pleas have been already considered, still the plaintiff, by reason of some additional cir- cumstance, may not be entitled in the whole or in part to the relief or assistance which he prays by his bill. The objections which may be made to the whole or any part of a suit, though liable to none of the objections before considered, are principally the subject of those kinds of pleas wdiich are com- monly termed pleas in bar; and which are usually Division of r !ea* » x ''in bar. (c) Plammerx. May, 1 Yes. 238; 5. C. 1 Yes. Jun. 292; 426. This must have been a 7 Yes. 289, 290 ; 1 Yes. & negative plea. And see Cart- Bea. 550; Turner v. Robinson, wriyht v. Ilalely, 3 Bro. C. C. 1 Sim. & Stu. 3. 278 pleas. [Chap. II. ranked under the heads of pleas of matter recorded, or as of record, in the court itself, or some other court of equity ; pleas of matters of record, or mat- ters in the nature of matters of record , in some court not a court of equity • and pleas of matters in pais. pieas of matte™ Pleas in bar of matters recorded, or as of record, recorded or as of ' ' court useiV or in the court itself, or some other court of equity, in some other court of equity. ma y \y e ^ \ a decree or order of the court by which the rights of the parties have been determined (d), or another bill for the same cause dismissed (e) ; 2. Another suit depending in the court, or in some [237] other court of equity, between the same parties for the same cause (f). Pleas of this nature generally go both to the discovery sought and the relief prayed by the bill. l\^lTanAen" ee A decree (1), determining the rights of the parties, and signed and enrolled, may be pleaded to a new bill for the same matter (g), and this even if the party bringing the new bill was an infant at the time of the former decree (//) : for a decree enrolled can only be altered upon a bill of review (i) . But the decree must be in its nature final, or afterwards (d) 3 Atk. 626. Dick. 65. (e) Pritman v. Pritman, 1 (A) 1 Atk. 631 ; Gregory v. Vera. 310 ; 1 Atk. 571 Molesworth, 3 Atk. 626; 3 Ves. (/) Foster v. V assail, 3 Atk. 317. 587. (0 3 Atk. 627. See above, (ff) Rutland v. Brett, Finch p. 101, et seq. R. 124; Mallock v. Qalton, piea of a former (1) A plea, to a creditor's bill, of a decree obtained by other creditors in a former suit will be overruled, where that decree is less beneficial to the plaintiff's in the second suit than the decree they might obtain in such second suit. Pichford v. Hunter, 5 Sim. 122. rolled. suit. S. II. P. II.] PLEAS. 279 made so by order, or it will not be a bar (/.). There- fore a decree for an account of principal and interest due on a mortgage, and for a foreclosure in case of non-payment, cannot be pleaded to a bill to redeem unless there is a final order of foreclosure (/) ; nor can a decree which has been made upon default of the defendant in not appearing at the hearing be pleaded without an order making the decree abso- lute ; the terms of such a decree being always that it shall be binding on the defendant, unless on being served with a writ of subpoena for the purpose he shall show cause to the contrary (m). Upon a plea of this nature so much of the former bill and answer must be set forth as is necessary to show that the [238] same point was then in issue (n). A decree or order dismissing a former bill for the same matter may be pleaded in bar to a new bill (o) (1) if the dismission was upon hearing, and was not in terms directed to be without prejudice (p). But an order of dismission (k) See next page, notes (o) G03. But see 1 Vera. 310. and (p). (o) Pritman v. Pritman, (I) Senhouse v. Earl, 2 Ves. 1 Vera. 310; Madge v. Brett, 450. Finch. R. 46 ; Connell v. War- (m) Orel. inCha. 198; Ed. ren, ib. 239; Earl of Peter- Bea. And see Halsey v. Smith, borough v. Germaine, 6 Bro. Mos. 186; Venemore v. Vene- P. C. 1, Toml. Ed. more, Dick. 93. {ji) Seymour v. Nosworthg, (n) Child v. Gibson, 2 Atk. 1 Ca. in Cha. 155 ; Totli. 50. (1) "Where a demurrer by one of the assignees of a bankrupt Plea by one m to a bill against the assignees for a general account of their deal- aiiowanceofa de- ins;s under the bankruptcy has been allowed, it may be pleaded Sth™ n by the other assignee in bar of the suit. Tarleton v. Hornby, 1 Y. & C. Eq. Ex. 333. 280 pleas. [Chap. II. is a bar only where the court determined that the plaintiff had no title to the relief sought by his bill ; and therefore an order dismissing a bill for want of prosecution is not a bar to another bill (n) . And a decree cannot be pleaded in bar of a new bill unless it is conclusive (o) of the rights of the plaintiffs in that bill, or of those under whom they claim (p). Therefore a decree against a mortgagor, and order of foreclosure enrolled, were not deemed a bar to a bill by intervening encumbrancers to redeem, although the mortgagee had no notice of those encumbrances : and the mortgagee having been long in possession, the account taken in the former cause was not deemed conclusive against the plaintiffs in the new bill, though under the circumstances the court, on overruling the plea and ordering the defendant to answer, limited the order by directing that the de- [239] fendant should answer to charges of errors or omis- sions, but that the plaintiffs should not unravel the account at large before the hearing (g). U) A decree must be signed and enrolled or it cannot be pleaded in bar of a suit (/•), though it may be in- sisted upon by way of answer [s) . But though it cannot be pleaded directly in bar of the suit for want (??) Brandlyn v \ Ord, 1 Atk. (q) Morrett v. Western, 15 571 ; 14 Ves. 232. July, 1/10, in Cli. reported 2 (o) See Coysgarne v. Jones, Yern. CG3. Ambl. G13; Collins v. Gough, (r) Anon. 3 Atk. 80.0 ; Kin- 4 Gwill. T. C. 1294. sey v. Kinsey, 2 Ves. 577. (p) See Doyly v. Smith, 2 (s) 2 Ves. 577. And see Ca. in Ch. 119; Godfrey v. Charles v. Rowley, 2 Bro. P. C. Chudwell, 2 Vern. G01 ; Atkin- 485, Tond. Ed. son v. Turner, 3 Barnard, 74. 7 S. II. P. II.] PLEAS. 281 of enrolment, it may perhaps be pleaded, to show that the bill was exhibited contrary to the usual course of the court, and ought not therefore to be proceeded upon (t) . For if the decree appeared upon the face of the bill, the defendant might demur (u), a decree not signed and enrolled being to be altered only upon a re-hearing (x) , as a decree signed and enrolled can be altered only upon a bill of review {y). If a bill is brought to impeach a decree on the whether u> a pica ° A to a bill to im- ground of fraud used in obtaining it, which, as hasg^J^^g' been observed (z), maybe done without the previous fraud are news- leave of the court, the decree may be pleaded in bar of the suit, with averments negativing the charges of fraud, supported by an answer fully denying them (a) . Whether averments negativing the charges of fraud are necessary to a plea of this description ['240] appears to have been a question much agitated in recent cases (b) ; " upon which it may be observed, (t) See 2 Yes. 577, note ; Butcher v. Cole, at the Rolls, Chan. Pleas, 89. 26 June, 1786, cited 1 Anstr. (u) Worthy v. BirMead, 99. See the cases of Sidney 3 Atk. 809 ; S. C. 2 Ves. 571 ; v. Perry, Parkinson v. Lecras, Lady Granville v. Bamsden, Meadows v. Duchess of Kings- Bunbury, 56. ton, and Devie v. Chester, (x) 2 Ves. 598. See above, mentioned in pages 289, 297, pp. 108, 109. 300,306,321. Andsee6Ves. (y) Bead v. Hambey, 1 Ca. 596 ; 2 Sch. & Lefr. 727 ; in Cha. 44; S. C. 2 Freem. 5 Madd. 330; 6 Madd. 64. 179. See above, p. 278 note (/0- (b) Pope v. Bisk, 1 Anstr. (z) Pases 112, 113. Exch. R. 59; Edmundson v. (a) Wichalse v. Short, 3 Bro. Hartley, ib. 97. And see Bay- P. C. 558, Toml. Ed. ; S. C. fey v. Adams, 6 Ves. Jan. :)86. 2 Eq. Ca. Abr. 177, and 7 Yin. In the cases in tbe court or' Abr. 398, pi. 15; 3 P. \Vms. exchequer it seems to have been 95 ; Gilb. For. Rom. 58 ; Trea- supposed that tbe answer in tise on Frauds, c. IS, p. 220; support of the plea overruled 282 pleas. [Chap. II. that without such averments, if the decree were ad- mitted by the bill, nothing would be put in issue by the plea. The question in the cause must be, not whether such a decree had been made, but whether, such a decree having been made, it ought to operate to bar the plaintiff* 's demand. To avoid its operation the bill must allege fraud in obtaining it ; and to sustain it as a bar the fact of fraud must be denied and put in issue by the plea. For upon the ques- tion, whether the decree ought to operate as a bar, the fact of fraud is the only point upon which issue can be joined between the parties ; and unless the plea covers the fact of fraud it does not meet the case made by the bill ; and on argument of the plea, the charge of fraud, not being denied by the plea, must be taken to be true. If the bill states the [241] decree only as a pretence of the defendant, which it avoids by stating, that if any such decree had been made it had been obtained by fraud, the decree must be pleaded, because the fact of the decree is not admitted by the bill ; and the charge of fraud must also be denied by the plea for the reasons before stated. If the bill states the decree abso- the plea. But an answer can by reason of the matter stated only overrule a plea where it in the plea he ought to be coui- applies to matter which the de- pelled to answer so much of the fendant by his plea declines to bill. See Arnold's case, Gilb. to answer (1); demanding the For. Rom. 59. judgment of the court, whether (1) By the 37th order of Aug. 1841, "No plea shall be held bad and overruled upon argument only because the answer of the defendant may extend to some part of the same matter as may be covered by such plea." S. II. P. II.] PLEAS. 283 lutely, but charges fraud to impeach it, yet the decree must be pleaded, because the decree if not avoidable is alone the bar to the suit ; and the fraud by which the bar is sought to be avoided must be met by negative averments in the plea, because without such averments the plea would admit the decree to have been obtained J)y fraud, and would therefore admit that it formed no bar. When issue is joined upon such a plea, if the decree is ad- mitted by the bill, the only subject upon which evidence can be given is the fact of fraud. If that should be proved, it would open the plea on the hearing of the cause ; and the defendant would then be put to answer generally, and to make defence to the bill as if no such decree had been made. The object of the plea is to prevent the necessity of en- tering into that defence by trying first the validity of the decree. If the evidence of fraud should fail, the decree, operating as a bar, would determine the suit as far as the operation of the decree would extend. It has also been objected, that a plea of the decree is a plea of the matter impeached by the bill ; but the frame of a bill in equity necessarily produces, in various instances, this mode of pleading (c) . If the [242] bill stated the title under which the plaintiff claimed, without stating the decree by which it had been affected, the defendant might have pleaded the decree alone in bar. If the bill stated the plaintiff's title, (c) See 3 P. Wms. 3 17, where who objected to this mode of Lord Chancellor TYz/iof' is stated pleading, observing that it was to have interrupted the counsel, every day's practice. 284 pleas. [Chap. II. and also stated the decree, and alleged no fact to impeach it, and yet sought relief founded on the title concluded by it, the defendant might demur; because upon the face of the bill the title of the plaintiff would appear to be so concluded. But as in the form of pleading in equity the bill may state the title of the plaintiff, and at the same time state the decree by which, if not impeached, that title would be con- cluded, and then avoid the operation of the decree by alleging that it had been obtained by fraud ; if the defendant could not take the judgment of the court upon the conclusiveness of the decree by plea upon which the matter by which that decree was impeached would alone be in issue, he must enter into the same defence (by evidence as well as by answer) as if no decree had been made ; and would be involved in all the expense and vexation of a second litigation on the subject of a former suit, which the decree, if unimpeached, had concluded. It is therefore permitted to him to avoid entering into the general question of the plaintiff's title as not affected by the decree, by meeting the case made by the plaintiff, which can alone give him [243] a right to call for that defence, namely, the fact of fraud in obtaining the decree. This has been permitted to be done in the only way in which it can be done, by pleading the decree with averments denying the fraud alleged; and those averments being the only matter in issue, they are necessarily of the very substance of the plea. The decree if obtained by fraud would be no bar ; and nothing can be in issue on a plea but thatwhich is contained in the plea; S. II. P. II.] PLEAS. 285 and every charge in the bill not negatived by the plea is taken to be true on argument of the plea. If there- fore the decree merely were pleaded, on argument of the plea, the charge of fraud must be taken to be true, and the plea ought therefore to be overruled ; but if on argument the plea were allowed, or if the plain- tiff, without arguing, replied to the plea, no evidence could be given on the charges of fraud to avoid the plea, and the defendant proving his plea (d), that is, proving the decree and nothing more, would be entitled to have the bill dismissed at the hearing (e) . As the averments negativing the charges of fraud [^44] Mode of making are used merely to put the fact of fraud, as alleged the averments, by the bill, in issue on the plea, they may be ex- pressed in the most general terms, provided they are sufficient to put the charges of fraud contained in the bill fully in issue. And as the plaintiff is en- *^ T j^" r[,0Tt titled to have the answer of the defendant upon oath to any matter in dispute between them, in aid of proof of the case made by the bill, the defendant must answer to the facts of fraud alleged in the bill (d) Sir Joseph Jcfojll, M. R. crec ; if the defendant pleaded 3 P. "Wms. 95. a decree binding the right, the (e) Perhaps all the difficulties plaintiff might have replied, which have arisen upon this that the decree had been ob- subject have proceeded from tained by fraud, by which the want of attention to the form plaintiff would have admitted of pleadings in courts of equity, that the decree was a bar, if not especially since the disuse of capable of impeachment on the special replications, rejoinders, ground of fraud ; the defendant sur-rejoinders, &c. When those by rejoinder would have avoided pleadings were allowed, the the charge of fraud, and sus- plaintiff might have stated his tained the decree ; and then the case, without suggesting that issue would have been simply it had been affected by any de- on the fact of fraud. 286 pleas. [Chap. II. so fully as to leave no doubt in the mind of the court that upon that answer, if not controverted by evi- dence on the part of the plaintiff, the fact of fraud could not be established (f). If the answer should not be full in all material points, the court may pre- sume that the fact of fraud may be capable of proof in the point not fully answered, and may therefore not deem the answer sufficient to support the plea as conclusive, and therefore may overrule the plea absolutely, or only as an immediate bar, saving the benefit of it to the hearing of the cause. But though the answer may be deemed sufficient to support the plea upon argument, the plaintiff may except to the answer, if he conceives it not to be so full to all the charges as to be free from exception ; or by [245] amending his bill may require an answer to any matter which may not have been so extensively stated or interrogated to as the case would warrant, or to which he may apprehend that the answer, though full in terms, may have been in effect evasive. Effect of the piea. As the bill must be founded on the supposition that the plaintiff's title is not concluded by the decree, and the plea on the contrary supposition, the effect of the plea is, to conclude the whole case made by the bill, so far as it may be concluded by (/) It seems to have been is no part of the defence, but imagined that there was some- that evidence which the plaintiff thing incongruous in a plea, and has a right to require, and to answer in support of the plea, use to invalidate the defence 6 Ves. 597- But this objec- made by the plea, upon argu- tion seems to have arisen from ment of the plea, before other a supposition that the answer evidence can be given, formed part of the defence. It S. II. P. II. 1 PLEAS. 287 the decree, except the question of fraud ; and con- sequently all the questions which might have been raised, if the decree had not been made, are put by the plea, if allowed, wholly out of the cause, unless the plea should be shown to be false in fact by evi- dence given on the issue taken upon it, and the matter of the plea thus opened upon the hearing. It is there- fore a mistake to suppose that the plea, if sustained, would not shorten the cause, or lessen expense (g). As the around of this defence bv plea of a decree D e"ee fan y c J l peculiar court of is that the matter has been already decided, a decree eqully ' of any court of equity, in its nature final, or made so by subsequent order, may be pleaded in bar of a new suit (//). 2. Another suit depending in the same or another [246] 2. Plea of another court of equity for the same cause (/) is a good auit depending, plea (k) (1) ; except, perhaps, in the case of a suit de- (g) The argument which is 102; Anon. Mos. 268; Prit- contained in the few preceding man v. Frit/nan, 1 Vern. 310; pages of the text, and the notes Fitzgerald v. Fitzgerald, 5 thereto, has been adopted and Bro. P. C. 567, Toml. Ed ; established by decided cases ; but, as to the authority of this but these not relating to de- particular case, except in prin- crees, they will be adduced ciple, see stat. 23 Geo. III. hereafter in illustration of the c. 28, and stat. 39 & 40 Geo. doctrines relating to the several III. c. 67, art. 8. See also pleas or legal bars sought to Pitcher v. Rig by, 9 Pri. Ex. R. be set aside upon equitable 79. grounds, with reference to which (i) Ord. in Cha. Ed. Bea. they have been respectively de- 26, 176; Crofts v. Wortlnj, tennined. See, however, here, 1 Ca. in Cha. 2-4 1 ; Foster v. 2 Ves. & B. 364 ; 6 Madd. 64, Vassall, 3 Atk. 587 ; Belt v. and 2 Sim. & Stu. 279. Read, ibid. 590; Murray v. (h) Gealex. Wyntour, Bunb. Shadwell, 17 Ves. 353. 211; Wingx. Wing, 10 Mod. (/•) It seems, that the pen- (1) A suit instituted bv husband and wife against the trustees Plea of a former v ' • suit. 288 pleas. [Chap. II. pending in an inferior court of equity, the effect of which the defendant has avoided hy going out of the jurisdiction of that court (/). The plea must aver that the second suit is for the same matter as the first ; and therefore a plea which did not ex- pressly aver this, though it stated matter tending to dency of another suit for the validity of the plea, and conse- same cause, in a court of con- quently a determination of the current equity jurisdiction, can- question whether the plaintiff not, before a decree has been should or should not be allowed made in such other suit, be to proceed in the suit in which pleaded in bar, see Houlditch v. the plea has been filed, Bar- Marquis of Boner/all, 1 Sim. & nard, 85. And see on this sub- Stu. 491 ; but, that where the ject generally, TJrlin v. , parties in both courts are the 1 Vera. 332 ; 1 Ves. 545 ; same, it may be pleaded for Daniel x. Mitchell, 3 Bro. C. C. the purpose of obtaining a 544 ; Anon. I Ves. Jun. 484 ; reference to a master, to inquire 2 Ves. & B. 110; Jackson v. whether the suits are for the Leaf, 1 Jac. & W.2 29. same matter, see Murray v. (/) See Morgan x. , Shadwell, 17 Ves. 353, and of 1 Atk. 408. See also Foster v. getting a decision, upon his Vassall, 3 Atk. 587, nvALord report of the fact, as to the Dillon x. Alvares, 4 Ves. 357. of her separate property in respect of a fraud, cannot be pleaded in bar to a subsequent suit by her and her next friend against her trustees and her husband and another person as parties to the fraud, although the relief prayed in both suits is the same, for the first suit is considered as the suit of the husband alone. Reeve v. Dalby, 2 S. & S. 464. In the £ase of a plea of a former suit depending, where the former suit is for relief in respect of legal and equitable waste, but no evidence has been entered into with regard to the equit- able waste, and the decree makes no decision respecting it, and the latter suit is exclusively for relief in respect of equitable waste, a plea of the former suit depending is bad : for the purpose sought to be attained by the latter suit cannot be at- tained by the former. Neiodiyate v. Neivdigate, 8 Law J. (0. S.) Ch. R.35. S. II. P. II.] PLEAS. 289 show it, was considered as bad in point of form, and overruled upon argument (m) . The plea must also aver that there have been proceedings in the suit, as [247] appearance, or process requiring appearance at the least (?i) . It seems likewise regular to aver that the suit is still depending (o) ; though as a plea of this nature is not usually argued, but being clearly a good plea if true, is referred to the examination and inquiry of one of the masters of the court as to the fact (p) , it has been held that a positive averment that the former suit is depending is not neces- sary (q) (1). And if the plaintiff sets down the plea to be argued, he admits the truth of the plea that a former suit for the same matter is depending, and the plea must therefore be allowed (r) unless it is defective in form is) . As the pendency of the former (m) Devie against Lord Brown- Ves. Jun. 484 ; Daniel v. Mit- low, in Chan. 23rd July, 1783, chell, 3 Bro. C. C. 544. rep. Dick. 611. («) This is founded on a ge- (n) Anon. 1 Vera. 318; neral order of the court, that Moor v. Welsh Copper Comp. the plaintiff shall not he put to 1 Eq. Ca. Ah. 39. argue such a plea, but may ob- (o) 3 Atk. 589. tain, in the first instance, an Qj) Ord. in Ch. Ed. Bea. order of reference to a master 176, 177 ; 2 Ves. & Bea. 110. to inquire into the truth of it. (q) Urlin v. , 1 Vern. Ord. in Cha. Ed. Bea. 176, 332. 177; Baker v. Bird, 2 Ves. (r) 1 Vern. 332; Anon. 1 Jun. 672; Murray v. Shad- (\) A plea ot proceedings in another court must shew not only Plea of proceed- y ' l . , . ,, . .. , ings in another that the subject-matter is the same, and the issue the same, but court, also that the object is the same ; and that the court is a court of competent jurisdiction ; and that the result of the proceedings therein would be conclusive, so as to bind every other court. Behrens v. Sieveking, 2 M. & C. 602. U 290 pleas. [Chap. II. suit, unless admitted by the plaintiff, is made the immediate subject of inquiry by one of the masters, a plea of this kind is not put in upon oath (/). [248] It is not necessary to the sufficiency of the plea that the former suit should be precisely between the same parties as the latter. For if a man institutes a suit, and afterwards sells part of the property in question to another, who files an original bill touch- ing the part so purchased by him, a plea of the former suit depending touching the whole property will hold (u). So where one part-owner of a ship filed a bill against the husband for an account, and afterwards the same part-owner and the rest of the owners filed a bill for the same purpose, the pen- dency of the first suit was held a good plea to the last Gr) ; for though the first bill was insufficient for want of parties, yet by the second bill the defendant was doubly vexed for the same cause. The course which the court has taken where the second bill has appeared to embrace the whole subject in dispute more completely than the first, has been to dismiss the first bill with costs, and to direct the defendant in the second cause to answer upon being paid the costs of a plea allowed (3/), which puts the case on the second bill in the same situation as it would have well, 17 Ves. 353; 2 Ves. & depending in a foreign court. Bea. 110; Carwick v. Young, And see Forster v. Vassall, 2 Swaust. 239 ; Carrick v. 3 Atk. 587. Young, 4 Madd. 437. See (it) Moor v. Welsh Copper 3 Atk. 589, as to defects in Comp. 1 Eq. Ca. Ab. 39. the fonn of such a plea. (x) Durand v. Hutchinson, (t) 1 Vera. 332. This how- Mich. 1771, in Chan, ever can scarcely be deemed (y) Crofts v. Worthy, 1 Ca. to extend to a case of a suit in Cha. 241. S. II. P. II. J PLEAS. 291 been in if the first bill had been dismissed before filing the second. Where a second bill is brought by the same person for the same purpose, but in a dif- ferent right, as where the executor of an administra- tor brought a bill, conceiving himself to be the per- sonal representative of the intestate, and afterwards procured administration de bonis //on, and brought [249] another bill (z) , the pendency of the former bill is not a good plea. The reason of this determination seems to have been, that the first bill being wholly irregular the plaintiff could have no benefit from it, and it might have been dismissed upon demurrer. Where a decree is made upon a bill brought by a creditor on behalf of himself and all other creditors of the same person, and another creditor comes in before the master to take the benefit of the decree, and proves his debt, and then files a bill on behalf of himself and the other creditors, the defendants may plead the pendency of the former suit ; for a man coming under a decree is quasi a party (a) . The proper way for a creditor in such a situation to pro- ceed, if the plaintiff in the original suit is dilatory, is by application to the court for liberty to conduct the cause (b). If a plaintiff sues a defendant at the same time suing both at ia»- x and in equity. for the same cause at common law and in equity, the defendant after answer put in (c) may apply to the (z) Huggins v. York Build. Ridge, 3 Meriv. 458 ; Ed- Comp. 2 Atk. 44. rounds v. Ada ad, 5 Madd. 31 ; («) Neve v. Weston, 3 Atk. Fleming v. Prior, 5 Madd. 423 ; 557 ; 1 Sim. & Stu. 361. Handford v. Storie, 2 Sim. & (b) See Powell v. Walworth, Stu. 196. 2 Madd. R. 183; Sims v. ( c ) 3 P. Wms. 90; 1 Ball u 2 292 PLEAS. [Chap. II. court that the plaintiff may make his election (1) where he will proceed (Y/), but cannot plead the pendency of the suit at common law in bar of the suit in equity (e), though the practice was formerly [250] otherwise (f). If the plaintiff shall elect to proceed in equity, the court will restrain his proceedings at law by injunction, and if he shall elect to pro- ceed at law the bill will be dismissed (g). But if & B. 1 19, 319 ; Fisher v. Mee, 3 Meriv. 45 ; Hogue v. Curtis, 1 Jac. & W. 449 ; Broivne v. Poyntz, 3 Madd. 24 ; Coupland v. Bradock, 5 Madd. 14. (d) 3 P. Wms. 90 ; Anon. 1 Ves. Jun. 91 ; 1 Ball & B. 320 ; Pieters v. Thompson, Coop. R. 294. But there is a distinction in the practice where the court is unahle at once to see that it is a case of election. See Boydx. Heinzelman, 1 Ves. &B. 381 ; 2 Ves. & B. 110; Mills x. Fry, 3 Ves. & B. 9, (1814) ; v. , 2 Madd. R. 395 ; Amory v. Brodrick, 1 Jac. R. 530, and the cases therein cited. In the instance of a mortgagee taking the usual bond for re-payment of the mortgage-money, he is not bound to elect, but may pro- ceed, under certain restrictions, upon his separate securities at law and in equity. Schoole v. Sail, 1 Sch. &Lefr. 1/6. But where the plaintiff sues in both jurisdictions in an individual character, and can have in the former only a part of the re- lief which he can obtain in the latter ; by instituting the suit in this court, he concludes him- self from proceeding at law, and therefore of course is not entitled to the privilege of elec- tion. Mills x. Fry, 19 Ves. 277, (1815). (e) 3 P. Wms. 90. And it should seem the pendency of a suit in an ecclesiastical court, for payment of a legacy, could not be pleaded to a bill for simi- lar relief here. Howell x. Wat- dron, 1 Ca. in Cha. 85. (/) Ord. in Cha. Ed. Bea. 177. (g) 3 P. Wms. 90, note; Moitsley x. Basnett, 1 Ves. & B. 382, note ; Fitzgerald v. Sv.comb, 2 Atk. 85. (1) On this subject, see 1 Headlam's Daniell's Ch. Pr. 791, et seq. S. II. P. II] PLEAS. 293 he should fail at law, this dismission of his bill will be no bar to his bringing a new bill (//). Pleas in bar of matters of record, or of matters Plc , a , 8 ln bar °* , ' matters of record in the nature of matters of record, in some court not EZSSSSlE*. . . ters of record in being a court of equity, may be — 1, a fine ; 2, a re- 80me court of law - covery ; 3, a judgment at law, or sentence of some other court. 1. A plea of a fine and non-claim, though a legal n - on p .^ 1 a ai ° I J 1 tine and bar, yet is equally good in equity (/') (1) provided it [251] is pleaded with proper averments (/»') . Where a title is merely legal, though the defect is apparent upon the face of the deeds, yet the fine will be a bar in (h) Countess of Plymouth 3 Atk. 303 ; Page v. Lever, v. Bladon, 2 Vera. 32. 2 Ves. Jun. 450 ; Butler v. (i) Thynne v. Townsend, W. Every, 1 Ves. Jun. 136 ; S. C. Jones, 416; Salisbury v. Bag- 3 Bro. C. C. 80; Bobson v. got, 1 Ca.in Cha. 2/8; 2Swanst. Leadbeater, 13 Ves. 230. The G10; Watkins v. Stone, 2 Sim. object of the averments is of & Stu. 560. course to show that it was an (/c) Story v. Lord Windsor, effectual fine, 13 Ves. 233. 2 Atk. 630 ; Hildyardv.Cressy, (T) A fine and non-claim cannot be pleaded to a bill to prevent Plea of fine and v / x x non-claim, in a the setting: up of an outstanding; term. For the person in whom suit to prevent O l o * setting up of an the leg-al estate in a satisfied term is vested is a trustee for the outstanding term. real owner of the estate ; and a court of equity will prevent the termor from setting up the term, so as to prevent the trial at law of the question who is the real owner of the estate. It will not take upon itself to decide that question by deciding upon the operation of the fine and non-claim ; because if it should decide against the title by fine and non-claim, that title might be again tried at law. Leigh v. Leigh, 1 Sim. 349. And to a bill by a plaintiff claiming as heir-at-law, and seek- J^^^Uaa" ing a discovery, and an injunction to restrain the setting up rclief - of an outstanding term, a plea of a fine and conveyance in favour of the person under whom the defendant claims is a good defence both to the discovery and to the relief. Gait v. Oxbal- d est on, 1 Russ. 158. 294 pleas. [Chap. II. equity ; and a purchaser will not be affected with notice so as to make him a trustee for the person who had the right. For a defect upon the face of title-deeds is often the occasion of a line being levied (/). And even a line levied upon bare pos- session, with non-claim, may be a bar in equity, if a legal bar, though with notice at the time the line was levied (m) . But with respect to equitable titles there is a distinction. For where the equity charges the land only, the fine bars (//), but where it charges the person only in respect of the land (o) , the line does not bar (p) . Therefore if a man purchases from a trustee, and levies a fine, he stands in the place of the seller, and is as much a trustee as the seller was (r), provided he has notice of the trust, or is a purchaser without consideration («?) . So if the grantee [252] of a mortgagee levies a fine, that will not discharge the equity of redemption (t) . But there are cases of equitable as well as of legal titles, in which a fine and non-claim will bar, notwithstanding notice at the time of levying the fine (w). It has been de- (l) 2Atk. 631. 0) Gilb. For. Rom. 62; (m) Brereton v. Gamut, 2 Bovy v. Smith, 2 Ca. in Cha. Atk. 240. 124; S. C. 1 Vera. 60, and 1 (n) Gifford v. Phillips, cited Vera. 84 ; on rehearing, see 1 2 Swanst. 612. Vera. 144, the decree was re- (o) Earl Kenoul v. Grevil, versed : but see 1 Sch. & Lefr. cited 2 Swanst. 611 ; S. C. \ 379, 380. Ca. in Cha. 295. (0 2 Atk. 631 ; Contra, 2 (jp) 1 Ca. in Cha. 278 ; 2 Freem. 21, 69 ; but see 1 Sch. Swanst. 611 j and see 2 Atk. & Lefr. 378, 380. 390 ; 1 Sch. & Lefr. 381. (u) 2 Atk. 361 ; Ilildyard (/•) 2 Atk. 631 ; Kennedy v. v. Cressy, 3 Atk. 303 ; Shields Daly, 1 Sch. & Lefr. 355. v. Atkins, 3 Atk. 560. S. II. P. II.] PLEAS. 295 termined, however, that if a fine is levied where the legal estate is in trustees for an infant, and the trustees neglect to claim, the infant, claiming by bill within five years after he attains twenty-one, shall not be barred (x). But perhaps this should be under- stood as referring to the case of a fine levied with notice of the title of the infant (y) . Where a title to lands is merely equitable, as in the case of an agree- ment to settle lands to particular uses, claim to avoid the fine must be by subpoena (z). The pendency of a suit in equity will therefore in equity prevent in many cases the running of a fine (a). Upon the whole, wherever a person comes in by a title oppo- site to the title to a trust estate (b) , or comes in under the title to the trust estate, for a valuable considera- tion, without fraud, or notice of fraud, or of the trust (c) , [253] a fine and non-claim may be set up as a bar to the claim of a trust (d) . When a fine and non-claim are set up as a bar to a claim of a trust, by a person claiming under the same title, it is not sufficient to aver that at the time the fine was levied the seller of the estate, being seised, or pretending to be seised, conveyed ; but it is necessary to aver that the seller was actually seised. It is not, indeed, requisite to 0) Allen v. Sayer, 2 Vern. ham's MSS. 2 Swanst. 603. 368. (a) 2 Atk. 389, 390 ; Pineke (y) Wych v. E. I. Comp. 3 v. Thornycroft, 1 Bro. C. C. P. Wms. 309 ; Earl v. Coun- 289 ; S. C. 4 Bro. P. C. 92, tess of Hunting/lorn, ibid. 310, Toml. Ed. ; I Sch. & Lefr. 4.'i_\ note G. (Ij) Stoughtonx. Onslow, cited (z) Salisbury v. Baggott, 1 2 Swanst. 615; and 1 Freem. Ca. in. Cha. 2/8 ; S. C. 2 311. Freem. 21, and more accurately (c) 1 Sch. & Lefr. 380. reported, from Lord Notting- (//) Gilb. For. Rom. G3. 29G pleas. [Chap. II. aver, that the seller was seised in fee ; an averment that he was seised ut de libero tenemcnto, and being so seised a fine was levied, will be sufficient (e). A fine and non-claim may be pleaded in bar to a bill of review (/"). 2. piea of a re- 2. To a claim under an entail, a recovery duly covery. J J suffered, with the deed to lead the uses of that re- covery, may be pleaded, if the estate limited to the plaintiff, or under which he claims, is thereby destroyed (g) (1). 3. riea of ajudg. 3. Jf the iudgment of a court of ordinary iuris- ment of a court of tf o « « of 1 J matters tn pan. go both to the discovery sought, and to the relief prayed by the bill, or by some part of it ; some- times only to the discovery, or part of the disco- very ; and sometimes only to the relief, or part of the relief. Pleas of this nature (which may go both to the discovery and relief sought by the bill, or by some part thereof, but which sometimes extend no farther than the relief) are principally : 1 . A plea of a stated account ; 2. Of an award ; 3. A release ; 4. Of a will or conveyance, or some instrument controlling or affecting the rights of the parties ; 5. A plea of any statute which may create a bar to the plaintiff's de- mand, as the statute for prevention of frauds and perjuries, or the statutes for limitation of actions, which maybe considered as a plea of matter hi pais; for though the statute itself is usually set forth in the plea, yet that perhaps is unnecessary, and the sub- stance of the plea consists in the averment of matter [259] (y) Marriot v. Marriot, in 762, 763. Exch. 1 Stra. 666, and argu- (z) 12 Yes. 307. ment of Ld. Ch. Baron Gilbert, (a) Jauncy v. Sealey, 1 Vera. Gilb. Ca. in Cha. 203. Ambl. 397. 302 PLEAS. [Chap. II. necessary to bring the case within the particular sta- tute ; and therefore if those matters appeared on the face of the bill itself it may be presumed a demurrer account ofastated would hold, though this has been doubted. 1 . A plea of a stated account is a good bar to a x l-S>~j- o(?A bill for an account (//) . It must show that the ac- count was in writing, or at least it must set forth the balance (c) . If the bill charges that the plaintiff has no counterpart of the account, the account should be annexed by way of schedule to the answer, that if there are any errors upon the face of it the plain- tiff may have an opportunity of pointing them out (d). [260] If eiTor (e) or fraud (f) is charged (g) it must be denied by the plea as well as by way of an- (b) Anon. 2 Freem. 62 ; 1 Vern. 180 ; Dawson v. Dawson, 1 Atk. 1 ; Sumner v. Thorpe, 2 Atk. 1 ; Penvil v. Luscombe, (1728), rep. 2 Jac. & W. 201 ; Irvine v. Young, 1 Sim. & Stu. 333. (c) 2 Atk. 399. (d) Hankey v. Simpson, 3 Atk. 303. (e) On the subject of this court's interference, where there is error in a settled account, see Anon. 2 Freem. 62 ; Proud v. Combes, 2 Freem. 183; S. C. 3 Rep. in Cha. 18; 1 Ca. in Cha. 55 ; 2 Freem. 183 ; Nels. 100; and 1 Eq. Ca. Ab. 12; Wright v. Coxon, 1 Ca. in Cha. 262 ; Bedell v. Bedell, Finch R. 5 ; Dawson v. Dawson, 1 Atk. 1 ; Bourhe v. Bridge/nan, 1 Barnard, 2/2 ; Roberts v. Kuffin, 2 Atk. 112; Pitr. Chol- mondeley, 2 Ves. 565 ; Johnson v. Curtis, 3 Bro. C. C. 266 ; Gray v. Minnethorpe, 3 Ves. 1 03 ; Lord Hardwieke v. Ver- non, 4 Ves. 411 ; 5 Ves. 837; Kinsman v. Barker, 14 Ves. 262. (/) As to its interference where the settlement of an ac- count has been accompanied with fraud, see Vernon v. Vaw- dry, 2 Atk. 119; Newman v. Payne, 2 Ves. Jun. 199 ; Whar- ton v. May, 5 Ves. 27 ; Beau- mont v. Boultbee, 5 Ves. 485 ; S. C. 7 Ves. 599; 11 Ves. 358; Langstaffe v. Taylor, 14 Ves. 262 ; Drew v. Power, 1 Sch. & Lefr. 182. (g) 9 Ves. 265, 266. S. II. P. II.] PLEAS. 303 swer (//) (1) ; and if neither error nor fraud is charged, the defendant must hy the plea aver that the stated account is just and true to the best of his knowledge and belief (/'). The delivery up of vouch- ers at the time the account was stated seems to be a proper averment in a plea of this nature (A*), if the fact was such (/) (2) . 2. An award may be pleaded to a bill to set aside l^ aotan (h) Gilb. For. Rom. 56 ; 1 see Matthews v. Walwyn, 4 Ca. in Cha. 299 ; 2 Freem. 62 ; Yes. 118; Middleditch. v. S/wr- 6 Ves. 596 ; Clarke v. Earl of land, 5 Yes. 87. Ormonde, 1 Jac. R. 116. And, (k) Gilb. For. Rom. 57; it seems, if the plaintiff allege Walker v. Consett, Forrest's that he has no counterpart of Exch. R. 157; Hodder v. the stated account, the defend- Watts, 4 Pri. Exch. R. 8. ant must annex a copy thereof And see Wharton v. May, 5 to his plea, Hankey v. Simpson, Yes. 27. 3 Atk. 303. And see above, (I) 2 Atk. 252. See the case p. 280, et seq. of Clarke v. Earl of Ormonde, (i) 3 Atk. 70 ; 1 Eq. Ca. Ab. 1 Jac. R. 116. 39 ; 2 Sch. & Lefr. 727. And (1) A plea of a legal bar (such as a full, true, and settled Necessity that t i \ • i n ■ /> • i v • 1 plea of a legal account, and a release,) is defective if it does not explicitly nega- bar should nega- tive, so as to give the plaintiff an issue on the plea to try, cir- stances affecting cumstances which are charged by the bill (such as fraud and col- lusion), and whicb, if true, would render the legal bar insuffi- cient. And this is the case even though such matters are posi- tively denied by an answer in support of the plea. Phelps v. Sprowle, 1 My. & K. 231, decided by Lord Brougham, C. over- ruling the decision of the Vice-Chancellor. 02) A plea, by a trustee, of a settled account and release, to Plea of * settled V / A *- f ' J ' ' account and re- inquiries as to the execution of a trust, is bad, if it does not aver lea8e - that the matters inquired after appear from the account. And a plea of a settled account and release to a bill by a cestui que trust against a trustee will not protect the trustee from a dis- covery of vouchers. Clarke v. The Earl of Ormonde, Jac. 1 16. 304 pleas. [Chap. II. the award and open the account (m) ; and it is not only good to the merits of the case, but likewise to the discovery sought by the bill (n) . But if fraud or partiality is charged against the arbitrators (0), [2b 1 J the charge must not only be denied by way of averment in the plea, but the plea must be sup- ported by an answer showing the arbitrators to have been incorrupt and impartial (7) ; and any other matter stated in the bill as a ground for im- peaching the award must be denied in the same manner. 3.pieaofareiease. 3. If the plaintiff, or a person under whom he claims, has released the subject of his demand, the de- fendant may plead the release in bar of the bill, (;*) (1 ) (m) IAngood v. Croucher, Jun. 135; Reynellx. Luscombe, 2 Atk. 395 ; IAngood v. Eade, 1 Turn. II. 135, n. ; Goodman S. C. 2 Atk. 501 ; Burton v. v.Sayers, 2 Jac. & W. 249; Ellington, 3 Bro. C. C. 196. Auriol v. Smith, 1 Turn. R. (n) Tittensonx. Peat, 3 Atk. 121 ; Dawson v. Sadler, 1 Sim. 529 ; Anon. 3 Atk. 644. As & Stu. 537. to a plea of an award under an (y) 2 Atk. 396 ; 6 Ves. 594, agreement to refer the matters 596 ; 2 Ves. & B. 364 ; and in dispute to arbitration, entered see Allardes v. Campbell, rep. into after bill filed, see Dry den 1 Turn. 133, note; S. C. v. Robinson, 2 Sim. & Stu. 529 ; Bunb. 265 ; Rybottx. Barrett, and see Rowex. Wood, 1 Jac. & 2 Eden R. 131. W. 348; S. C. 2 Bligh, P. C. (r) Bower v. Swadlin, 1 Atk. 595. 294 ; Taunton x. Pepler, 6 (o) As instances, see Ward Madd. 166; Clarice x. Earl of x.Periam, cited 2 Atk. 396; Ormonde, 1 Jac. R. 116. And 2 Ves. 316; S. C. reported see Roche v. Morgell, 2 Sch. & 1 Turn. R. 131, note. Chicot Lefr. 721. v. Lequesne, 2 Ves. 315 ; 2 Ves. Plea of release by (1) To a bill by a husband and wife for property limited to the separate use of the wife, a plea of a release good plea. Stooke v. Vincent, 1 Coll. 527. wife's property! 3 separate use of the wife, a plea of a release by the husband is a S. II. P. II.] PLEAS. 305 and this will apply to a bill praying that the release may be set aside (s). In a plea of a release the defendant must set out the consideration upon which the release was made (t) . A plea of a release there- fore cannot extend to a discovery of the consideration; and if that is impeached by the bill, the plea must be [262] assisted by averments covering the grounds on which the consideration is so impeached. Thus, to a bill statingvarious transactions between the defendantand the testator of the plaintiff, and imputing to those transactions fraud and unfair dealing on the part of the defendant, and impeaching accounts of the trans- actions delivered by the defendant to the testator on the ground of errors, omissions, and unfair and false charges, and also impeaching a purchase of an estate conveyed by the testator to the defendant in consider- ation of part of the defendant's alleged demands, and praying a general account, and that the purchase of the estate might be set aside as fraudulently obtained, and the conveyance might stand as a security only for what was justly due from the testator's estate to the defendant; a plea of a deed of mutual release, extend- (s) Pusey v. Besbouverie, 3 v. Smith, 1 Anstr. Exch. R. P. Wms. 315. And with re- 258 ; Freeland v. Johnson, 1 gard to this latter proposition, Anstr. Exch.R.276 ; Walters. it maybe remarked, that it is Gfa/«v7^,5Bro.P.C.555,Toml. in like manner necessary that Ed.; 2Sch. &Lefr. 727; 6 Mad. the defendant should deny 64 ; 2 Sim. & Stu. 2/9. (1). the equitable circumstances (tf) Gilb. For. Rom. 57 ; charged for the purpose of im- Griffith v. Manser, Hardr. 108; peaching the release, by aver- 2 Sch. & Lefr. 728 ; and sec ments in his plea, and by an Walter v. Glanville, 5 Bro. answer to the same effect, Lloyd P. C. 555, Toml. Ed. (1) See also Parker v. Alcoch, 1 Y. & J. 432. X 306 pleas. [Chap. II. ing to so much of the bill as sought a discovery, and prayed an account of dealings and transactions prior to and upon the day of the date of the deed of re- lease, and all relief and discovery grounded there- upon, and stating the deed to have been founded on a general settlement of accounts on that day, and to have excepted securities then given to the defendant for the balance of those accounts which was in his favour, and averring only that the deed had been prepared and executed without any fraud or undue practice on the part of the defendant, was overruled. The consideration for the instrument was the general settlement of accounts ; and if those accounts were liable to the imputations cast upon [263] them by the bill (//) , the release was not a fair trans- action, and ought not to preclude the court from decreeing a new account. The plea therefore could not be allowed to cover a discovery tending to im- peach those accounts, and the fairness of the settled accounts was not put in issue by the plea, or sup- ported by an answer denying the imputations charged in the bill(l). The plea indeed was defective in many other particulars, necessary to support it against the charges in the bill ; and to some parts of the case (u) Though an account be in it, the court will relieve. See stated under hand and seal, yet the cases cited above, 302, if there appear any mistake note () 13 Edw. I. c. 5. O) 3 P. Wms. 287, note. (q) Gardiner v. Griffith, 2 See also 1 Vera. 418, and Beck- P. Wms. 404; 3 Atk. 459; ford v. Tobin, ab. p. 213, n.; Boteler v. Allington, 3 Atk. 2 Sch. & Lefr. 638. And see 453. And see Mutter v. Chan- Hodle v. Healey, 1 Ves. & B. veil, 1 Meriv. 4/5. 536, and the cases therein (?■) 2 P. Wms. 405. cited. (s) Jloliingshead's case, 1 (?>) Edsell v. Buchanan, 4 P. Wms. 742 ; Comber s case, Bro. C. C. 254. 1 P. Wins. 766 ; 2 Sch. & Lefr. (o) 3 Atk. 225, 226, and the 633 ; 1 Ball & B. 531. 27 Will. IV. c. 27, s. 40, may be pleaded to the bill. Dear- man v. Wyche, 9 Sim. 570. (1) See note (1), p. 315. S. II.P.1I.J PLEAS. 317 statute of limitations cannot be applied to it (t). But where the consequence of reviving proceedings to carry a decree into execution would have been to call on representatives to account for assets after a great length of time, and under peculiar circum- stances of laches, a bill of revivor and supplement for those purposes was dismissed (u) . Although suits in equity are not within the words of the statute, the courts of equity generally adopt it as a positive rule, and apply it by parity of reason to cases not within it (x) (1). In general they also hold that un- (t) 1 P. Wms. 744 ; 2 Sch. (x) Lord Mansf. 2 Burr.961; & Lefr. 6.33. 2 Atk. 61 1 ; 3 Bro. C. C. 340, (u) Hercy v. Dinwoody, 4 note ; 1 Sch. & Lefr. 428. Bro. C. C. 257. (1) See Baldwin v. Peach, 1 Y & C. Eq. Ex. 453, and note 0),p. 312. A plea that the title of the plaintiff or of the person through Wea of adverse 1 . . . iii possession must whom he claims accrued at a particular time, and that the pos- specify the c\r- - . 1 cumstances con- session of the property and the receipts ot the rents and profits stitutingsuchpos thereof have heen adverse to him, and the person through possession of do- whom he claims ever since that time, will he overruled, if it does fngthe same, not set forth the circumstances constituting such adverse pos- session ; because adverse possession may consist in various things ; and if none of these are specified, the plaintiff may have no precise knowledge of the defence which he is to meet. And if a defendant puts in a plea of adverse possession, and the bill specifically charges that the defendant has documents in his possession which prove certain facts, and such facts, if proved, would tend to negative such adverse possession, the defendant must deny the possession of those documents ; and if the bill contains any other statement or charge tending to negative the plea of adverse possession, such statement or charge must be denied. Hardman v. Ellames, 2 M. & K. 732. But a plea of the statute of limitations need not negative the Pieaof statute . i i /. <■ .... . of limitation* usual general allegation that the defendant has m his custody need not negative documents relating to the matters contained in the bill. Forbes as to documents, v. Skelton, 8 Sim. 325. 318 PLEAS. [Chap. II. [274] Plea of some other statute, whether general or particular. less the defendant claims the benefit of the statute by plea or answer he cannot insist upon it in bar of the plaintiff's demand (y) ; but notwithstanding, the courts will in cases which will allow of the exercise of discretion use the statute as a rule to guide that discretion (z) ; and will also sometimes resort to the policy of the ancient law, which in many cases limited the demand of accruing profits to the com- mencement of the suit (a). Anv other public statute which may be a bar to the demands of the plaintiff may be pleaded, with the averments necessary to bring the case of the de- fendant within the statute, and to avoid any equity which may be set up against the bar created by the statute (b) . (y) 1 Atk. 494. (z) 1 Atk. 494. Courts of equity it seems, in respect of legal titles and demands, are bound by tbe statute, 2 Sch. & Lefr. 630, 631 ; and see Hony v. Hony, 1 Sim. & Stu. 568 ; but, in respect of equita- ble titles and demands, are only influenced in tbeir determina- tion by analogy to it. 1 Scb. & Lefr. 428; "2 Scb. & Lefr. 632; 10 Yes. 466; 15 Yes. 496 ; 17 Ves. 97; 1 Ball & B. 119, 166 ; 2 Jac. & W. 163, and following pages, particu- larly p. 175, and 2 Jac. & W* 192. («) On tbis subject see Pul- teney v. Warren, 6 Yes. 73 ; Pettiward v. Prescott, 7 Yes. 541. (b) See instances of a plea of the statute of maintenance, 32 Hen. YIII. c. 9, s. 3, Hit- chins x. Lander, Coop. R. 34 ; Wall v. Stubbs, 2 Ves. & Bea. 354 ; and another example of the proposition in the text, Ocklestone v. Benson, 2 Sim. & Stu. 265. And see Be Tastet v. Sharpe, 3 Madd. 5 1 . Necessity of an- Where a bill contains an allegation of matter which woidd swer in support of ° a plea of the sta- remove the legal bar of the statute of limitations, if the de- tute of limitation. ° fendant pleads the legal bar, without fully negativing that allega- tion by an answer, the plea will be overruled. Foley v. Hill, 3 Mv. & C. 4/5. S. II. P. II.] pleas. 319 A particular statute may also be pleaded in the same manner. Thus, to a bill impeaching a sale of lands in the fens by the conservators under the sta- tutes for draining the fens, the defendant pleaded the statutes, and that the sale was made by virtue of and according to those statutes, and the plea was allowed (c). X. Supposing a plaintiff to have a full title to the x. pieaof an 1 x fJ x equal right In relief he prays, and the defendant can set up no ihlplSono" defence in bar of that title, yet if the defendant has an equal claim to the protection of a court of equity to defend his possession, as the plaintiff has to the assistance of the court to assert his right, the court will not interpose on either side (el). This is particular] v as '" lhe cu8e of .r v ' l w a purchase or the case where the defendant claims under a pur- ""ualTconsi. . deration, without chase or mortgage for valuable consideration without notice - notice of the plaintiff's title, which he may plead in bar [275] of the suit (e) (1) . Such a plea must aver that the per- son who conveyed or mortgaged to the defendant was (e) Brown v. Ilamond, 2 Ch. see Williams v. Lambe, 3 Bro. Ca. 249. C. C. 264. () of the plaintiff's title or claim (o), previous to r2761 ^ ne execution of the deeds and payment of the con- (/) 3 P. Wms. 281 ; Story (I) 1 Ca. in Cha. 34 ; Mil- v. Lord Windsor, 2 Atk. 630 ; lard's Case, 2 Freem. 43 ; 1 7 Yes. 250. Brereton v. Gamul, 2 Atk. 240. (ff) Trevanian v. Mosse, 1 (?«) Hardingham v. Nicholls, Vera. 24G ; 3 Yes. 22(3 ; 9 Yes 3 Atk. 304 ; M ait land v. TFil- 32; 16 Yes. 252. son, 3 Atk. 814. (70 3 P. Wms. 281. As to (n) On the subject of notice, the case where the purchase is actual and constructive, see of a reversion, see Hughes v. Sugden's Yen. & Purch. Gth Garth, Ambl. 421 ; 8. C. 2 Eden Ed . 7 1 . R. 168. (p) Lady Bodmin v. Yande- (?) Fitzgerald v. Lord Fal- bendy, 1 Yern. 179; Jones v. conbridge, Fitzg. 207; 1 Atk. Thomas, 3 P. Wms. 243; Kel- 571 ; 3 Atk. 377. sail v. Bennet, 1 Atk. 522. (/,-) 1 Atk. 571. (1) A plea of a purchase for valuable consideration without notice must show that if the vendor or settlor had not a good title, the party purchasing was imposed on at tbe time of his purchase. And hence if a plea of this kind is put in by the heir at law of one who became a purchaser of his wife's estate for a valuable consideration or under a prenuptial settlement, the plea must aver that the wife was seised, or pretended to be seised, not only before, but at the respective times of the execution of the marriage settlement and of the marriage. Jackson v. Rowe, 4Russ. 514. S. II. P. II.] PLEAS. 321 si deration (p) ; and the notice so denied musl be notice of the existence of the plaintiff's title, and not merely notice of the existence of a person who could claim under that title {(f). If particular instances of notice, or circumstances of fraud are charged, they must be denied as specially and particularly as charged in the bill(/). The special and particular denial of notice or fraud must be by way of answer, that the plaintiff may be at liberty to except to its sufficiency («s) ; but notice and fraud must also be denied generally by way of averment in the plea, {p) More v. Mayhow, 1 Ca. in Cha. 34; £. C. 2 Freem. 1 75 ; 1 Eq. Ca. Ab. .38, 334 ; Tourville v. Naish, 3 P. Wins. 307; 1 Atk. 384; 2 Atk. 631 ; 3 Atk. 304. {q) 1 Atk. 522. And it must not appear that the defendant, though he should claim as purchaser under a settlement executed at the time of his marriage, might have had no- ; Ord v. Huddle- would not afford him relief by stone, Dick. .010. And see Gait decreeing the payment of tbe v. Osbaldeston, 1 Russ. IjIS; balance to him, it would over- 5. C. 5 Madd. 428. (1) Mendizabel v. Maehado, 1 Sim. 68. The rule that officers of a corporation maybe made CO-de- B iU making offi- cers of a corpora- 330 pleas. [Chap. II. in. piea of want m It has been already observed, that if a claim or interest in the J ' of interest is alleged by a bill against a person who has no interest in the subject, he cannot by demurrer protect himself from a discovery, and must resort either to a plea or disclaimer (/?) ; by either of which means it should seem he may protect himself from making by answer that discovery which he may pro- perly be required to make if called upon as a witness (^). In some cases however the court has allowed a de- fendant to protect himself by answer, denying the charge of interest, from answering to matters to which he may be afterwards called upon to answer in the [284] character of a witness ; and perhaps , in j ustice to those against whom he may afterwards be called upon to give evidence as a witness, he ought not to be pre- viously examined to the same matters upon a bill, under the pretence of an interest which he has not. iv. piea that the jy The situation of a defendant may render it discovery would J be improper. • n > /» •» ± it improper tor a court of equity to compel a discovery, 1 , because the discovery may subject him to pains and penalties ; 2, because it will subject him to a (p) Page 223. And see could by plea protect himself 1 Ves. 426. from discovery. See 1 Ves. & (q) But it does not appear B. 550(1). to be settled that a bankrupt Uon eo-defen- fendants with the corporation applies to a bill of discovery, as well as to a bill for relief. Glascott v. The Governor and Company of the Copper Miners of England, 11 Sim. 305. (1) See supra, pp. 187, 188. But see Griffin v. Archer, 2 Anst. 4/8. piea of bank- To a bill for the delivery up of bills of exchange which the dant, in suit for plaintiff had been fraudulently induced by the drawer to accept bills of exchange, without a consideration, the drawer cannot plead that he bas be- come bankrupt since the filing of the bill. Maekworth v. Mar- shall, 3 Sim. 3G8. S. II. P. II] PLEAS. 331 forfeiture, or something- in the nature of a forfeiture ; 3, because it would betray the confidence reposed in him as a counsel, attorney, or arbitrator ; 4, because he is a purchaser for a valuable consideration without notice of the plaintiff's title. 1. It has been already observed, that no person isii^^>3d bound to answer so as to subject himself to punish- SEtto punish- " ment, or anything i . in whatever manner that punishment arises, or p^ s e h ™ t " t re of whatever is the nature of the punishment (r). If therefore a bill requires an answer which may subject the defendant to any pains and penalties (1), or tends to accuse him of any crime, and this is not so ap- parent upon the face of the bill that the defendant can demur, he may by plea set forth by what means he may be liable to punishment, and insist he is not bound to answer the bill, or so much thereof as the plea will cover (s). Thus to a bill brought for discovery of a marriage, where the fact, if true, would have subjected the party [285] (r) Page 229. See 2 Yes. (s) Bird v. Hardwicke, 1 245 ; 2 Swanst. 21-1, 216 ; Bird Vena. 109 Olaridge v. lloare, v. Hardwicke, 1 Vern. 109; 14 Ves. 59. 1 1 Ves. 525. (1) If in the interval between the filing; and the arsniine; of a Plea of exposure v . ^ B 6 toa penaUy. plea that the discovery sought would expose the defendant to a penalty, the period elapses within which the penalty can be sued for, the plea will be overruled. The Corporation of Trinity House Stroud \. Burge, 7 Law J. (O. S.) 1 1, V. C. Where a tenant undertakes to pay an additional rent, in case he shall do or not do certain acts, though such additional rent be in some passages of the lease designated a penalty, it is not con- sidered as a penalty so as to protect the tenant from answering to a bill of discovery as to such acts. Jones \. Green, 3 Y. & J. 290. 332 pleas. [Chap. II. to punishment in the ecclesiastical court for incest, the defendant pleaded matter to show that the mar- riage, if real, was incestuous, and would subject the parties to pains and penalties (t). And where a bili was brought against a woman claiming as widow of a person dead, alleging that before her marriage with the deceased she was married to another person, who was living at the time of her marriage with the deceased, the defendant pleaded that marriage to the discovery of the supposed first marriage, and insisted that she was not compellable to answer to the fact of the first marriage, as it would tend to show her guilty of bigamy (u). So to a bill for a discovery whether the defendant had become a pur- chaser of an estate of which the supposed seller was not in possession, the defendant pleaded the statute against selling or contracting for any pretended rights or titles (>). And to a bill brought by insurers for a discovery of what goods had been shipped on board a vessel, the defendant pleaded the statutes which made it penal to export wool. He was, however, directed to answer so far as to discover what goods were on board the vessel besides wool (z). But where the discovery sought was not of a fact which could subject the defendant to any penalty, though connected with another fact which might, as, where the question was whether the defendant had a le- gitimate son, the defendant was compelled to answer. [286] (t) Brownsword v. Edwards, {x) Sharp v. Carter, 3 P. 2 Yes. 243 ; 14 Ves. 65. Wms. 3/5. (m) 5 Brc. P. C. 102, Toml. (y) Dwicalfx. Bloke, 1 Atk. Ed. 52. subject thedefen- ant to a forfei- ture. S. II. P. II.] PLEAS. 333 For the discovery of that fact would uol subject him to a penalty, though the discovery of his marriage with the mother of the sou might, and therefore he was not compelled to discover the marriage (z). 2. It has been also (a) observed, thai no person is »•««*■»«»• ' * discovery would bound to answer so as to subject himself to any for- d ' Hit ure, or to any thing in the nature of a forfeiture (Z>) . If this is not apparent on the bill, the defence must: be made by way of plea. Thus where a bill was brought to discover whether the defendant had as- signed a lease, he pleaded to the discovery a proviso in the lease, making it void in case of assignment (c) . And to a bill seeking a discovery whether a person under wdiom the defendant claimed was a papist, the defendant pleaded his title, and the statute of 1 1 & 12 Will. III. disabling papists (//) (1). But such a plea will only bar the discovery of the fact which would occasion a forfeiture. Therefore, where a tenant for life pleaded to a bill for discovery whether he was tenant for life or not, that he had made a leas;> for the life of another, which, if he was tenant for his own life only, might occasion a forfeiture, the plea was overruled(e). So upon a hill charging the de- 0) Finch v. Finch, 2 Yes. (,/) Smith v. Read, 1 Atk. 191. 526 ; 3 Atk. 457 ; Jones v. 0) Tage 233. Meredith, Com. R. Ml ; 5. C. (h) 1 Atk. 527. And see Bunb. 346 ; Harrison v. South- Parhhurst v.Loioten, 1 Meriv. cote, 528 ; S. C. '2 Yes. 389. 39 1 . (e) Weaver v. Earl o/Meath, (c) Fanex.Jtlee, 1 Eq. Ca. 2 Yes. 108. Ab. 77. (1) The disabilities of papists from holding property are removed by the stat. 10 Geo. IY. c. 7, s. 23. 334 pleas. [Chap. II. [287] fendant to be tenant for life, and that he had com- mitted waste, it was determined that he might plead to the discovery of the act which would occasion the forfeiture, the waste, but that he could not plead to the discovery whether he was tenant for life or not ( /') . Upon an information by the attorney-general on behalf of the crown, to discover whether the defend- ant was an alien, and whether her child was an alien, and where born, it was held the defendant was bound to discover whether she was herself an alien, the legal disability of an alien not being a penalty or forfeiture ; and that she was also bound to discover whether her child was an alien, and where born, as she had a chattel interest in the property in question in trust, eventually, for the crown, if her child was an alien (g). In all cases of forfeiture, if the plaintiff is entitled alone to the benefit of the forfeiture (/?), and waives it by his bill, the defendant will be com- pelled to make the discovery required. And though the plaintiff is not entitled to the benefit of the for- feiture, yet if the defendant has by his own agreement bound himself not to insist on being protected from making the discovery, the court will compel him to make it (i). In some cases the legislature has ex- pressly provided that the parties to transactions made [288] illegal by statute shall be compellable to answer bills in equity for discovery of such transactions ; and in (/) 2 Ves. 109. Bumpstead, Mosely, 75 ; S. C. (g) Att. Gen. v. Duplessis, 1 Eq. Ca. Ab. 77 . Parker, 144; S C. 1 Bro.P.C. (t) Mosely, 77; and the 415; Daubigny v. Daval/on, cases there cited; African Anstr. 462. Comp. v. Parish, 2 Vera. 244. (h) South Sea Comp. v. S. II. P. II] FLEAS. 335 such cases a defendant cannot protect himself from making the discovery thus required by pleading the statute which may subject him to penalties in con- sequence of the discovery (/. ) . 3. If a hill seeks a discovery of a fact from one defelfdanvslnoV whose 1 knowledge of the fact was derived from the as mm", attor- ney, or arbitrator. confidence reposed in him as counsel, attorney, or arbitrator, he may plead in bar of the discovery that his knowledge of the fact was so obtained (/) (1). 4. If a defendant is a purchaser for a valuable 4 ; ple ? of p ur 1 - I chase for a valu- eonsideration without notice of the plaintiff's title, *>'* con81dera - a court of equity will not in general compel him to make any discovery which may affect his own title (m). Thus if a bill is filed for discovery of goods purchased of a bankrupt, the defendant may plead that he purchased them bona fide for a valu- able consideration, paid before the commission of bankrupt was sued out, and before he had any notice of the bankruptcy (n). (/•) Bancroft v. Wentworth, 472 ; 1 Sch. & Lefr. 226 ; 3 Bro. C. C. 11. See, how- Lowfenx. Parkhurst, 2 Swanst. ever, Bullock v. Richardson, 104 ; and Harvey v. Clayton. I 1 Ves. Jun. 373 ; Billing v. and other cases reported, 2 Flight, 1 Madd. R. 230. Swanst. 221, note. (f) Buhtrode v. Lechmore, (m) 2 Ves. Jun. 458 ; and 1 Ca. in Cha. 277; S. ('. 2 see above, 31!), et seq. ; 3 Atk. Freem. 5 ; and see Leyard v. 302. Foot, Finch, R. 82 ; Sandford (n) Perrat v. Ballard, 2Ca. v. Remington, 2 Ves. Jus. 181); in Cha. 72 ; Hey man v. Gomel- Wright \. Mayer, Ves. 280 ; don, Pinch, R. 34 ; Abery v. Richards v. Jackson, 18 Ves. Williams, 1 Vera. 27. (1) As to this subject, see the present editor's note to original page [307], infra. 336 PLEAS. [Chap. II. [289] Pleas to bills nnt original, or bills in the nature of original bills. Pleas to bills of revivor. [290] Pleas have been hitherto considered with reference only to original bills, and of these a certiorari bill, from the nature of the proceedings upon it, will not in general admit of a plea (o) . But the same grounds of plea will hold in many cases to the several other kinds of bills according to their respective natures ; and some of them, as already observed, admit of a peculiar defence which may be urged by way of plea. Thus if a bill of revivor is brought without sufficient cause to revive the suit against the defendant, and this is not apparent on the bill, the defendant may plead the matter necessary to show that the plaintiff is not entitled to revive the suit against him (;;) . Or if the plaintiff is not entitled to revive the suit at all, though atitle is stated in the bill, so that the defendant cannot demur, the objection to the plaintiff's title may also be taken by way of plea. Indeed it seems to have been thought that a defendant could only object to revivor by way of plea or demurrer (q) , and there may be great convenience in thus making the objection. For if the defendant objects by answer merely, the point can only be determined by bringing the cause regularly to a hearing ; but if the objection is taken by plea or demurrer, it may in general be immediately determined in a summary w r ay. However, if a defend- (o) See, however, Cook v. Delebere, 3 Ch. Rep. 66, where a plea to a certiorari bill, of a decree in the inferior court, is mentioned. (p) Ilain-is v. Pollard, 3 P. Wins. 348; S. C. 2 Eq. Ca. Ab. 2 ; Huggins v. Tor/.- Build- ing Comp. 2 Eq. Ca. Ab. 3. A person made a defendant by a bill of revivor cannot support, as a defence, a plea previously set up by the original defendant, and overruled, Samvda v. Fur- tado, 3 Bro. C. C. 70. (q) Harris v. Pollard, 3 P. Wms. 348. S. II. P. II.] pleas. 337 ant objects by answer only(l), or does not object at all, yet if it appears to the court that the plaintiff has no title to revive the suit against the defendant, he can take no benefit from it (;•)• If a person entitled to revive a suit docs not proceed in due time he may be barred by the statute for limitation of actions, which may be pleaded to a bill of revivor afterwards filed (.y). If a supplemental bill is brought upon mental una. 1 ' matter which arose before the original bill was filed, and this is not apparent on the bill, the defendant may plead that fact (t). And if a bill is amended by stating a matter arisen subsequent to the filing of the bill, and which consequently ought to have been the subject of a supplemental bill, advantage may be taken of the irregularity by way of plea, if it does not suffi- ciently appear on the bill to found a demurrer (it) ; but if the defendant answers, he waives the objection to the irregularity, and cannot make it at the hearing (x) (2) . (/•) Harris v. Pollard, 3 P. worth, 2 Atk. 40 ; Baldwin v. "Wms. 348. Maclcown, 3 Atk. 817. (s) llolUngsheaaVs case, IP. («) Sec Brown v. Higden, Wms. 712; and see 2 Sch. & 1 Atk. 291 ; Jones v. Jones, 3 Lefr. 632, etseq., and the cases Atk. 217. cited ; mid Earl of Egremont (x) Belchier v. Pearson, at ^. Hamilton, 1 Bali & 15. 516. the Rolls, 13th July, 1782. (t) See Leivellen v. Mack- (1) To prevent a suit from being revived, either a plea or a Heviww, how V / I . . . prevented. demurrer must be put in to the bill of revivor. An answer in- sisting that the plaintiff has no right to revive is not sufficient : on the contrary, the putting in of an answer is submitting to the revivor. Lewis v. Bridgman, 2 Sim. 465. (2) A plea that a plaintiff in a supplemental bill, as well as in Plea of no inter- ..'.„, '. , -,. , , • • est in the plaintiff an original bill, has disposed ot bis snare and interest m a com- in a supplemental pany on behalf of the members of which the original and sup- plemental bills were filed, and that at the time of filing the bill, z 338 Pleas to cross bills. [291] Pleas to bills of review. pleas. [Chap. II. A cross-bill differing in nothing from the first species of bills, with respect to which pleas in general have been considered, except that it is always occasioned by a former bill, it is not liable to any plea which will not hold to the first species of bills. And a cross- bill in general is not liable to some pleas which will hold to the first species of bills ; as pleas to the juris- diction of the court, and pleas to the person of the plaintiff, the sufficiency of which seem both affirmed by the original bill ; unless the cross-bill is exhibited in the name of some person alone, who is alone in- capable of instituting a suit, as an infant, a feme covert, an idiot, or a lunatic (u). It has been already mentioned (x) that a part of the constant defence to a bill of review, for error apparent on a decree, has been said to be by a plea of the decree ( y) ; but that a demurrer seemed to be the proper defence, and that the books of practice gave the form of a demurrer only to such a bill {z) . Where any matter beyond the decree, as length of time (a), a purchase for a valuable consideration, or any other matter, is to be offered against opening of (u) See above, p. 240, note (x) Page 24 1 . (y) Dancer v. Evett, 1 Vern. 392; Carlish v. Gover, Nels. Rep. 52. (z) And see Needier v. Ken- dall, Finch, R. 468. (a) Gregor v. Molesworth, 2 Ves. 109 ; but see above, p. 242. he had no interest whatever in any of the proceedings, is not a good plea to such supplemental bill, where the relief sought by it is only a modification or alteration of the relief in the original suit, and where the original and supplemental bills ought there- fore to be considered as one bill. Small v. Attwood, 1 Y. & C. Ex. 39. S. II. P. II.] pleas. 339 the enrolment, that matter must be pleaded (b). And if a demurrer to a bill of review has been allowed, and the order allowing it is enrolled, it is an effectual bar to a new bill of review (c) on the same grounds, and [292] may be pleaded accordingly. To a bill of review of a decree for payment of money, it has been objected by plea that according to the rule of the court (d) the money decreed ought to have been first paid ; but the rule appears to have been dispensed with on security given (e) ; and as the bill of review would not stay process for compelling payment of the money, it may be doubted whether the objection was pro- perly so made. A bill of review, upon the discovery of new matter, seems liable to any plea which would have avoided the effect of that matter if charged in the original bill. It seems to have been doubted whether the fact of the discovery of the matter thus alleged to support a bill of review, can be traversed by plea after the court upon evidence of the fact has given leave to bring the bill, even if the defendant could traverse the fact by positive assertion of some fact which would demonstrate that the matter was within the knowledge of the party, so that he might have had the benefit of it in the original suit. But (b) Hartwell v. Townsend, disk v. Gee, Amb. 229. 2 Bro. P. C. 107, Toml. Ed. ; (e) Denny v. Filmer, 2 Ca. and see Gorman v. M'Cullock, in Cha. 133; S. C. 1 Vena. 5 Bro. P. C. 597, Toml. Ed. 135 j 1 Vern. 417; Pitt v. As instances in which the error Earl of Arylass, 1 Vern. 441 ; alleged was not in the body of ll'oofs v. Tucker, 2 Vern. 120. the decree, see Ctwt&ome v. ( ' execution. the defendant may plead the fact, if it is not so apparent on the hill as to admit of a demurrer. Bills in the nature of hills of revivor or of supplemental bills arc liable to the same pleas as the bills of [294] whose nature they partake. Having thus considered some of the principal grounds upon which pleas to the several kinds of bills may be supported, it will be proper to observe some particulars with respect to, 1 , the nature of pleas in general ; 2, their form ; 3, the manner in which they are offered to the court ; and 4, the manner in which their validity is decided. 1. In pleading there must in general be the same '• The nature A ^ u and requisites of strictness in equity as at law(7) ; at least in matter of pleas- substance ( 1 ) . A plea in bar must follow the bill , and (/) 1 Vern. 114 ; 2 Atk.G32 ; 13 Yes. 233. (1) Where an information against a company, after stating rieu b;«i in form several charities in which that company alone are interested, con- tains an allegation as to another charity in which that and another company are jointly interested ; and that allegation is afterwards struck out hy amendment, in order to save making such other company parties ; and in place of such allegation another is sub- stituted, that there are other funds vested in the former com- pany upon "the like or corresponding trusts;" in such case, a plea of the will of the person who created the charitable trust struck out of the information, and that the other company above mentioned are not parties, is bad in point of form ; because it is in fact an answer as to that of which it means to protect the defendant from making discovery ; and it is also bad in substance, because comparing the amended information with the original, "the like or corresponding trusts" mean trusts for the exclusive benefit of the company interested in the other trusts. Attorney- Gen, v. Merchant Tailors 1 Company, 5 Sim. 323. If, to all the relief and discovery of a bill, except so much as Negative pie*, denying thai 342 pleas. [Chap. II. not evade it, or mistake the subject of it (k). If a plea does not go to the whole bill, it must express to what part of the bill the defendant pleads ; and therefore a plea to such parts of the bill as are not answered must be overruled as too general (/). So if the parts of the bill to which the plea extends are (k) Asgill v. Dawson, Bunb. (J) Anon. 3 Atk. 70 ; Broom 70 ; Child v. Gibson, 2 Atk. v. Horsley, Mosely, 40. 603. which is excepted seeks a discovery of an alleged promise which constitutes the out of the bill by . . the plea. whole equity, a defendant pleads, in bar, that no such promise was made, and, by an answer accompanying the plea, again denies the promise, the plea is bad ; because the plea is to the bill, taking away that which alone constitutes the equity ; so that if issue were taken on it there would be in the issue no affirma- tive, but only a negative of that which nobody affirms. Denys v. Shuckburgh, 6 Law J. (N. S.) 330, L. C. Plea coupled with If a plea is coupled with an averment which raises an issue an inconsistent . ., . . averment. not raised by the bill, and which, instead ot supporting the plea, is in fact inconsistent with the plea, the plea will be overruled. Emmott v. Mitchell, 9 Jur. 171, V. C. E. Plea to the relief if a plea purports to be a plea to the relief only, but yet con- only which ends . . with declining a eludes with a demand of the judgment of the court whether the discovery. defendant ought to be compelled to make any other answer, such a plea is informal : for if the plea is to the relief only, the defen- dant professes that he will give the discovery. King v. Heming, 9 Sim. 59. Plea of the law of A plea that by the laws of a foreign country an agreement is a foreign state. \ «..,,_. ., .» . i • i i void, is sufficiently definite, without specifying the particular law which renders the agreement void. Heriz v. Riera, 1 1 Sim. 318. Plea to a bin of If a bill of discovery is filed in aid of an action, and the right of discovery in aid m J . . of an action. action is founded upon a variety of circumstances put together, a plea which attempts to show that the action cannot be maintained by confessing and avoiding some of the circumstances and deny- ing the rest, is not good ; because it reduces the plaintiff to the necessity of proving, in a court of equity, without a discovery, that he has a right to support that action. Robertson v. Lub- bock, 181. S. II. P. II.] pleas. 343 not clearly and precisely expressed ; as if the plea is general, with an exception of matters after mentioned, and is accompanied by an answer, the plea is bad. For the court cannot judge what the plea covers, without looking into the answer, and determining whether it is sutficent or not, before the validity of the plea can be considered (?n). It is generally conceived that a plea ought not to contain more defences than one ; and though a plea [295] may be bad in part and not in the whole (//), and may accordingly be allowed in part and overruled in part, yet there does not appear any case in which two defences offered by a plea have been separated, and one allowed as a bar. Thus if a defendant pleads a fine and non-claim, which is a legal bar, and a pur- chase for a valuable consideration without notice of the plaintiff's claim, which is an equitable bar; if either should appear not to be a bar, as if the de- fendant by answer should admit facts amounting to notice ; or if the plea in respect to either part should be informal ; there seems to be no case in which the court has separated the two matters pleaded, and allowed one as a bar and disallowed the other. And as the end of a plea is to reduce the cause, or the part of it covered by a plea, to a single point (o), in order to save expense to the parties, or to protect the defendant from a discovery which he ought not to be (») Sal held x. Science, 2 Ves. Bro. P. C. 39, Toml. Ed.; 1 107 ; Howe v. Duppa, 1 Acs. & Jac. R. 460. B. 511. (©) 1 Atk. 54; 1 Bro. C. C. (n) 1 Atk. 53, 451, 539 i 2 417 j 15 Ves. 82 ; 1 Yes. & B. Atk. 44, 284 j 1 Ves. '205; 153, note, 156-7 ; 1 Madd. R. Welby v. Duke of Portland, 2 194. 344 pleas. [Chap. II. compelled to make ; and the court to that end in- stantly decides on the validity of the defence, taking the plea, and the bill so far as it is not contradicted by the plea, to be true ; a double plea is generally considered as informal and improper ( p) . For if two [296] matters of defence may be thus offered, the same reason will justify the making any number of defences in the same way, by which the ends intended by a plea would not be obtained ; and the court w T ould be com- pelled to give instant judgment on a variety of de- fences, with all their circumstances, as alleged by the plea, before they are made out in proof; and (ji) Whitbread x.Broc/churst, where great inconvenience 1 Bro. C. C. 404 ; S. C. 2 Yes. would result from obedience to & B. 153, note. Koblcissen v. this rule, the court on a previ- Hastings, 4 Bro. C. C. 252 ; ous special application will give S. C. 2 Ves. Jun. 84 ; Wood v. to the defendant leave to plead Strickland, 2 Yes. & B. 150; double (1). Gibson v. White- 3 Madd. 8 ; 4 Madd. 245. But head, 4 Madd. 241. it has been determined, that Leave to plead (1) Leave will be given to put in a double plea where extraor- dinary inconvenience might arise if a double plea were not allowed. Thus, in a suit as to an invention, where the defendant is required to set forth accounts of extraordinary length, at a great expense, and at the risk of making an inconvenient exposure of his affairs, leave will be given to plead, first, that wbere the invention is new, it is not useful ; and, secondly, that where it is useful, it is not new. Kay v. Marshall, I Keen, 190. And when it will be no disadvantage to the plaintiff, and a great convenience to the defendant that the defences should be put in the form of pleas, in order that their validity may be considered before a discovery is enforced ; leave will be given to plead to an ejectment bill ; first, that a party is not heir ; and, secondly, that even if he were heir, the plaintiff's right is barred by the statute of limitations. Hampton v. Birchell, 4 Beav. 558. S. II. P. II.] pleas. 345 consequently would decide upon a complicated case which might not exist. This reasoning perhaps does not in its extent apply with equal force to the case of two several bars pleaded as several pleas, though to the same matter : and it may be said that such pleading is admitted at law, and ought therefore to be equally so in equity. But it should be considered that a plea is not the only mode of defence inequity, and that therefore there is not the same necessity as at law for admitting this kind of pleading. But though a defence offered by way of plea consist of a great variety of circumstances, yet if they all tend to one point the plea may be good (0) (1). Thus a (o) Cann v. Cann, 1 P.Wms. v. Leonard, 1 Ball & 15. 323. 725 ; Ashurst v. Eyres, 3 Atk. And see 2 Blackst. 1028, as to 341 ; 15 Yes. 82, 377 ; Leonard the distinction between a double CI") A distinct plea may be put in to distinct parts of the relief Distinct pleas to v/ l « i 7 ;,T distinct parts of sought by the same bill. Em mot t v. Mitchell, 9 Jur. 1/1, a bill. V. C. E. But each " plea, in order to be good, must be an allegation or denial of some leading fact, or of some matters which, taken collectively, make out some general fact." Robertson v. Lubbock, -1 Sim. 179. Hence, inasmuch as the fact of a party being heir is consistent Multifarious or , , double ['lea*. with the fact of there being no descent; and as there may have been a descent without a seisin ; a plea of not heir, no descent, and no seisin, is a plea of several matters and multifarious. Chadwich v. Broadwood, 3 Beav. 530. A plea that a person had not intermeddled with a testator's estate, and that he had renounced probate, is not a double plea to a bill alleging that he had possessed certain of the testator's effects, and was the personal representative of the testator ; for both the averments in the idea only amount to this, that the character of executor never was in him. Strickland v. Striclc- land, 12 Sim. 253. A plea that the plaintiff had not obtained his certificate under 346 [297] PLEAS. [Chap. II. plea of title deduced from the person under whom the plaintiff claims may be a good plea though con- sisting of a great variety of circumstances (p) ; for the title is a single point, to which the cause is reduced by the plea {q). It therefore seems that a plea can be allowed in part only with respect to its extent, the quantity of the bill covered by it ; and plea, consisting of distinct pro- positions, and a single plea con- sisting of one connected propo- sition formed from multifarious circumstances. (p) Martin soadMartin, House of Lords, 6th March, 1 724-5 ; and Else v. Doughty, 1 P.Wms. 387, note, Mr. Cox's Ed. ; Howe v. Duppa, 1 Ves. & B. 511; Gait v. Osbaldeston, 1 Russ. 158; S. C. 5 Madd. 428. (q) See Doble v. Cridland, 2 Bro. C. C. 274. II a commission of bankruptcy, and that no dividend, or a dividend or dividends less than fifteen shillings in the pound had been paid, and that the assignee was a necessary party, is not a double plea ; because the facts as to the certificate and dividend lead but to one point, namely, the necessity of the assignee being a party. Kirkman v. Andrews, 4 Beav. 554. A plea of a stated account, and of a release, or receipt of the balance, is not a double plea. And such account, if not impeached by the bill, need not be annexed to the plea. Holland v. Sprowle, 6 Sim. 23. So a plea of the statutes of limitation, 21 Jac. 1, and 9 Geo. IV., is not a double plea ; for they ought to be considered as jointly making but one law. Forbes v. Skelton, 8 Sim. 335. But a plea, which is in effect a plea of the statute of limita- tions, and of no liability ever incurred, is a double and inconsis- tent plea, and bad. Emmott v. Mitchell, 9 Jur. 1/1, V. C. E. And a plea averring that a fine was levied of an estate claimed bv the bill, and that such estate is the only part of the property claimed in which the defendant has any interest, will be over- ruled, as a double plea. Watkins v. Stone, 2 Sim. 49. S. II. P. II.] pleas. 347 that if any part of the defence made by the plea is bad, the whole must be overruled (r)« A plea must aver facts to which the plaintiff may reply (*), and not in the nature of a demurrer, rest on facts in the bill (t). The averments ought in general to be positive (m). In some cases, indeed, a defendant has been permitted to aver according to the best of his knowledge and belief; as that an account is just and true (x) ; and in all cases of negative averments {y), and of averments of facts [298] not within the immediate knowledge of the defen- dant (z) , it may seem improper to require a positive assertion (1). Unless, however, the averment is (r) As instances of a plea Ves. 594 ; Billing v. Flight, 1 not being a complete defence Madd.R. 230; Steffv. Andrews, to the bill, or to so much thereof 2 Madd. R. 6. The prominent as it purports to cover, see distinction between a plea and Moore v. Hart, 1 Vern. 110; a demurrer (Ord. in Ch. 26 Ed. Salkeld v. Science, 2 Ves. 107; Bea.) here noticed, is strictly Potter v. Davy, 3 Vin. Ab. 135 ; true, even of that description of Hoare v. Parker, above p. 322, plea which is termed negative, note; Jones v. Davis, 16 Ves. (above, p. 269), for it is the 262 ; Chamberlain v. Agar, 2 affirmative of the proposition Ves. & B. 259 ; Spottiswood v. which is stated in the bill. Stockdale, Coop. R. 102 ; Bar- (w) 3 Atk. 590. ker v. Rag, 5 Madd. 64. (x) 3 Atk. 70 ; Burgong v. 0) 15 Ves. 377. Machell, Tothill, 70. (t) Bic knell v. Gough, 3 Atk. (g) See Drew v. Drew, 2 55S ; 2 Ves. 296 ; Roberts v. Ves. & B. 159. Hartley, 1 Bro. C. C. 56 ; 6 (*) 2 Ves. & B. 162. (1) According to the case of Kirkman v. Andrew, a plea that Plea ofinfenna- the defendant is informed and believes that the plaintiff became a fact" e ' ef ° bankrupt, is a sufficient plea of bankruptcy ; inasmuch as the facts stated in an answer upon the information and belief of the defendant are held to be sufficiently put in issue ; and as the alle- gations in a plea, if they relate to the acts of otbers, however posi- .348 pleas. [Chap. II. positive, the matter in issue appears to be, not the fact itself, but the defendant's belief of it : and the conscience of the defendant is saved by the nature of the oath administered ; which is, that so much of the plea as relates to his own acts is true, and that so much as relates to the acts of others he believes to be true. All the facts necessary to render the plea a complete equitable bar to the case made by the bill, so far as the plea extends, that the plaintiff may take issue upon it (a) , must be clearly and distinctly averred (1). Averments are likewise (a) Gilb. For. Rom. 58 j 2 Ves. 29G ; and see Carleton v. Leighton, 3 Meriv. 667. tively made in the plea itself, are sworn to only upon the belief of the defendant. 4 Beav. 554. But according to the case of Small v. Athvood, a plea that the defendant has been informed and believes that the plaintiff has no interest in the suit is bad ; because, in this case, (he onus probandi being on the defendant, since he undertakes to show that the plaintiff has no interest, he must be as capable of stating his facts positively as of proving them ; and if upon issue being taken upon the plea, he were to prove his information and belief, that would not be an answer to the bill. 1 Y. & C. Eq. Ex. 39. Negativing facts (1) In a plea it is unnecessary to negative facts which would bin. ' defeat the plea, if they are not stated in the bill. But if the plea does contain averments negativing such facts, such aver- ments are merely superfluous ; they do not vitiate the plea. Forbes v. Skelton, 8 Sim. 325. Denial of allega. " Where a bill alleges a fact, and alleges other circumstances I'mvVafact de- calculated and tending to prove that fact, the defendant cannot i>y the plea. pj eac | ^g negative of the fact, without denying the statements and allegations in the bill which have a tendency to prove it." Deny s v. Shuckburg, 6 Law J. (N. S.) 330, L. C. Answer as to do- If a defendant puts in a negative plea (such as a plea of no porTof a negative titheable things to a bill for tithes), and there is a charge in the bill as to documents from which the plaintiffs right to relief S. II. P. II.] pleas. 349 necessary to exclude intendments which would other- wise be made against the pleader ; and the aver- ments must be sufficient to support the plea(Z>). (4) 2 Yes. 245 ; 2 Soli. & Left. 727 ; 18 Yes. 182. would appear, the defendant must deny such charge by an answer in support of the plea. Clayton v. The Earl of Winchester, 3 Y. & C. Eq. Ex. 426, 683. See also note (1) to p. 2/0. If a defendant puts in a plea denying a partnership in a business, and by his answer admits that he is in possession of documents relating to the said business, but, " save as aforesaid," denies that he has any documents whereby the truth of the alleged matters would appear, he admits that the truth of the contrary of the plea would appear by evidence in his possession, and this renders the plea bad, although in his answer he goes on to insist, tbat inasmuch as the documents in his possession relate exclusively to his own title, and do not in any way tend to support the plaintiff's claim, he is not bound to produce them. Harris v. Harris, 3 Hare, 130. A plea to a bill for discovery in aid of an ejectment, that the Plea of non-pay- ment of purchase purchase money contracted to be paid for the estate has not been money. paid or released, is defective in not averring that the money is due, where, from the circumstances of the case, it is probable that it was not the intention of the parties that it should be paid : as where the conveyance was made by a father to his son, and although containing a recital of an agreement for a sale to the son, was yet expressed to be made in consideration of natural affection. Drake v. Drake, 3 Hare, 523. If to a bill for an account of partnership transactions, by the Plea ° f an ? gree " * 1 * J merit to waive an executors of a deceased partner, the defendant pleads that for a account - certain consideration a parol agreement was entered into between the deceased partner and the defendant, that all accounts between them, and all claims of the former in respect of the effects of the partnership and the debts due to and from the same, should be waived ; such agreement will be construed to be an agreement tbat the defendant should take upon himself the discharge of such partnership liabilities (if any) as remained to be satisfied ; and the plea will be overruled, if it does not aver that no such liabili- ties still remained undischarged. Broion v. Perkins, 1 Hare, 56" 1. Where a bill is filed to establish a will of real estate, of which it ing^taMtaEu" alleges several copies were executed, a plea that the will proved fsct - 350 pleas. [Chap. II. If there is any charge in the bill, which is an equi- table circumstance in favour of the plaintiff's case against the matter pleaded ; as fraud, or notice of title ; that charge must be denied by way of answer, as well as by averment in the plea (c) . In this case the answer must be full and clear, or it will not be effectual to support the plea (d) ; for the court will intend the [299] matters so charged against the pleader, unless they are fully and clearly denied (e) . But if they are in substance fully and clearly denied, it may be sufficient to support the plea, although all the circumstances charged in the bill may not be precisely answered (f) . (e) See the judgment in Bay- 145 ; 5 Bro. P. C. 561, Toml. ley v. Adams, 6 Ves. 594 ; 2 Ed. Sch. & Lefr. 727 ; 2 Ves. & B. (e) 2 Atk. 241 ; Gilb. Ca. in 364; 5 Madd. 330; 6 Madd. Eq. 185. As an example, see 64 ; 2 Sim. & Stu. 279 ; and Hony v. Hony, 1 Sim. & Stu. see above, p. 281, et seq., and 568. p. 299. (/) 5 Bro. P. C. 561, Toml. (d) 3 Atk. 304 ; Radford v. Ed. Wilson, 3 Atk. 815 ; 3 P. Wms. in the ecclesiastical court, did not contain certain passages is bad ; because it does not negative the fact that the will was as stated in the bill, but traverses the fact of the copy proved in the ecclesiastical court being to the effect stated in the bill, which is quite immaterial in regard to a question of real estate, as the eccle- siastical court has no jurisdiction in cases of real estate. Strick- land v. Strickland, 3 Beav. 224. Pleading exemp- "Where a defendant, in his answer to a bill for tithes of a mill, says that it is an ancient mill, built before living memory ; that no tithes have ever been paid for it ; and that it has been always considered exempt from tithes ; the exemption is well pleaded. Townley v. Colegate, 2 Sim. 297. Negative plea, as "A negative plea, as to belief, of no mortgage, not going to material collateral charges tending to that point, is too loose and general." Arnold v. Heafeld, 1 M'Cleland & You. 330. S. II. P. II.] PLEAS. 351 Though the court upon argument of the plea, may hold these charges sufficiently denied by the answer to exclude intendments against the pleader, yet if the plaintiff thinks the answer to any of them is evasive, he may except to the sufficiency of the an- swer in those points. A defendant may also support his plea by an answer touching any thing not charged by the bill, as notice of a title, or fraud ; for by such an answer nothing is put in issue covered by the plea from being put in issue (g), and the answer can only be used to support or disprove the plea (//). But if a plea is coupled with an answer to any part of the bill covered by the plea, and which conse- quently the defendant by the pica declines to answer, the plea will upon argument be overruled (/') (1). Where facts appeared upon an answer to an original bill, which would operate to avoid the defence made by plea to an amended bill, the answer to the original bill was read on the argument of the plea, to coun- terplead the plea (k) ; so it should seem if the answer to an original bill would disprove an averment in a plea to an amended bill, the court might permit it [300] to be read for that purpose (/) . (y) Gilb. For. Rom. 58, 59. (#) Hyliardv. WTateM Cha. \h) See 3 Atk. 303. 15th March, 1/45. (?) Cottinyton v. Fletcher, (/) See the case of Hildyard 2 Atk. 155 ; Gilb. For. Rom. v. Cressy, 3 Atk. 303. 58. (1) Watkins v. Stone, 2 S. & S. 560. By the 3/th order of Aug. 1841, "no plea shall be held bad and overruled upon argu- ment, 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." 352 pleas. [Chap. II. 2. Form of pieas. 2 A plea, like a demurrer, is introduced by a pro- testation against the confession of the truth of any matter contained in the bill. For the purpose of de- termining the validity of the plea, the bill, so far as it is not contradicted by the plea (m) , is taken for true ; and the protestation has probably been used to prevent the same conclusion for other purposes. The extent of the plea, that is, whether it is in- tended to cover the whole bill, or a part of it only, and what part in particular, is usually stated in the next place: and this, as before observed (?i), must be clearly and distinctly shown. The matter relied upon as an objection to the jurisdiction of the court, to the person of the plaintiff or defendant, or in bar of the suit, generally follows, accompanied by such averments as are necessary to support it. The plea commonly concludes with a repetition that the matters so offered are relied upon as an objection or bar to the suit, or so much of it as the plea extends to ; and prays the judgment of the court, whether the defendant ought to be compelled further to an- swer the bill, or such part as is thus pleaded to. If the plea is accompanied by an answer merely to support it, the answer is stated to be made for that purpose, not waiving the plea. If the plea is to part of a bill only, and there is an answer to the rest, it [301] j s expressed to be an answer to so much of the bill as is not before pleaded to, and is preceded by the same protestation against waiver of the plea. JnMnT 1,leas are 3. A plea (o) is filed like a demurrer in the proper (m) See Plunket v. Penson, (n) Page 343. 2 Atk. 51 ; 15 Ves. 377. (o) A plea must be signed S. II. P. II.] pleas. 353 office ; and picas in bar of matters in pals (o) , must be upon oath of the defendant ; but pleas to the jurisdiction of the court, or in disability of the per- son of the plaintiff (//), or picas in bar of any matter of record, or of matters recorded, or as of record in the court itself (y), or any other court (;•), need not be upon oath. 4. If the plaintiff conceives a plea to be defective ?hem. oceediDgs on in point of form or substance, he may take the judg- ment of the court upon its sufficiency. And if the defendant is anxious to have the point determined, lie may also take the same proceeding. Upon argu- ment of a plea it may either be allowed simply, or the benefit of it may be saved to the hearing, or it may be ordered to stand for an answer. In the first case the plea is determined to be a full bar to so much of the bill as it covers, if the matter pleaded, with the averments necessary to support it, be true. If, therefore, a plea is allowed upon argument, or the plaintiff without argument thinks it, though good in form and substance, not true in point of fact, he may take issue upon it, and proceed to dis- [302] prove the facts upon which it is endeavoured to be supported (.v) . For if the plea is upon argument held to be good, or the plaintiff admits it to be so by replying to it (0, the truth of the plea is the only by counsel, unless taken by (/•) But if a plea of matters commissioners. Simes v. Smith, recorded be accompanied with 4 Matld. 366. See below,}). 376, averments of matters in pais, it as to the taking of an answer. must be upon oatb. Waff v. (o) Prac. Reg. 325, Wy. Ed. Stubbs, 2 Ves. & Bea. 35 1 ; see (p) Ord. Ch. 27, 172, Ed. above, pp. 265—268. Bea. 0) Prac. Reg. 330, Wy. Ed. (q) Prac. Reg. 324, Wy. Ed. (*) 1 Vern.72,Prec.inCh.58. A A 354 pleas. [Chap. II. subject of question remaining, so far as the plea extends ; and nothing but the matters contained in the plea, as to so much of the bill as the plea covers, is in issue between the parties (u) . If therefore issue is thus taken upon the plea, the defendant must prove the facts it suggests (x) . If he fails in this proof, so that at the hearing of the cause the plea is held to be no bar, and the plea extends to discovery sought by the bill, the plaintiff is not to lose the benefit of that discovery, but the court will order the defendant to be examined on interrogato- ries, to supply the defect (3/). But if the defendant proves the truth of the matter pleaded, the suit, so far as the plea extends, is barred (0), even though the plea is not good either in point of form or sub- stance. Therefore where a defendant pleaded a purchase for a valuable consideration, and omitted to deny notice of the plaintiff's title, and the plaintiff replied, it was determined that the plea, though [303] irregular, had been admitted by the replication to be good, and that the fact of notice not being in issue, the defendant, proving what he had pleaded, was en- titled to have the bill dismissed (a) . If upon argument the benefit of a plea is saved to the hearing, it is considered that so far as appears to the court it may be a defence ; but that there may be matter disclosed in evidence which would avoid («) 3 P.Wms. 95 ; Parker v. v. Fountaine, Rep. Tern. Finch. Blythmore, Prec. in Chan. 58. 4 ; 2 Ves. 24/ ; 6 Madd. 63 ; See Cooper v. Tragonnel, 1 Ch. 2 Sim. & Stu. 2/8. Rep. 174. (z) See Wichalse v. Short, (x) Mos. 73 ; 2 Ves. 247 ; 3 Bro. P. C. 558. Ord\. Hudtlleston, Dick. 510. (ft) Harris v. Ingledew, 3 (y) Nels. Rep. 119 ; Astley P.Wms. 94, 95. S. II. P. II.] pleas. 355 it, supposing the matter pleaded to be strictly true ; and the court therefore will not preclude the ques- tion. When a plea is ordered to stand for an answer, it is merely determined that it contains matter which may be a defence, or part of a defence; but that it te not a full defence, or it has been informally offered by way of plea, or it has not been properly supported by answer, so that the truth of it is doubtful. For if a plea requires an answer to support it, upon argu- ment of the plea the answer may be read to counter- prove the plea ; and if the defendant appears not to have sufficiently supported his plea by his answer the p ea must be overruled, or ordered to stand for an answer only (b). A plea is usually ordered to stand for an answer, where it states matter which may be a defence to the bill, though perhaps not proper for a plea, or informally pleaded (c). But if a plea states nothing which can be a defence it is merely over- [304] ruled. If a plea is ordered to stand for an answer, it is allowed to be a sufficient answer to so much of the bill as it covers (d), unless by the order liberty is given to except (e). But that liberty may be qua- lified, so as to protect the defendant from any parti- cular discovery which he ought not to be compelled (fj) See Hildyard ▼. Cressy, C. 559; Wood v. Strickland, 3 Atk. 304. 2 Yes. & B. 150. (c) As examples, see Moore (d) Coke v. WUcoclu, Mos. v. Hart, 1 Vern. 110; S. C. 73 ; 3 P. WfflS. 240; 3 Atk. ibid. 201 ; Kemp v. Kelsey, SI 5. Pree. in Cha. 54-1 ; Salk<>ljth>n S. C. 2 Yes. & B. 153, note; v. Robinson, 2 Sim. & Stu. 529. Whitchurch v. Bevis, 2 Bro. C. A A 2 356 pleas. [Chap. II. to make (e) . And if a plea is accompanied by an answer, and is ordered to stand for an answer, with- out liberty to except, the plaintiff may yet except to the answer, as insufficient to the parts of the bill not covered by the plea (f). If a plea accompanied by an answer is allowed, the answer may be read at the hearing of the cause to counterprove the plea(V). There are some pleas which are pleaded with such circumstances that their truth cannot be disputed ; and others being pleas of matter of fact, the truth of which may be immediately ascertained by mere in- [305] quiry, it is usually referred to one of the masters of the court to make the inquiry. These pleas, therefore, are not usually argued (//)• Thus pleas of outlawry or excommunication (1), being always pleaded sub sigillo, the truth of the fact pleaded is ascertained by the form of pleading, and the suit is consequently de- layed until the disability shall be removed, unless the plaintiff can show that the plea is defective in form, or that it does not apply to the particular case, and for these purposes he may have the plea argued. Pleas of a former decree (i), or of another suit de- (e) See Alardesv. Campbell, ((/) 3 Atk. 304. But the Bunb. 265 ; S. C. 1 Turn. R. plaintiff may not amend his bill 133, note ; Herbert v .Montagu, as of course after a plea to part Finch. R. 117; Brereton v. of the bill has been allowed. Gamul, 2 Atk. 240 ; Pvsey v. Taylor v. Shaw, 2 Sim. & Stu. Beshouvrie, 3 P. Wms. 315 ; 12. King v. Holcombe, 4 Bro. C. C. (A) Ord. in Ch. 1 75, Ed.Bea. 439 ; Bayley v. Adams, 6 Ves. (t) Morgan v. Morgan, 1 586. Atk. 53. (/) Colcex .Wilcocks, Mos.73. (1) This disability is removed by the stat. 53 Geo. III. c. 127, s. 3. S. II. P. III.] ANSWERS. 357 pending (k) , arc generally referred to a master to in- quire into the fact ; and if the master reports the fact true, the bill stands instantly dismissed, unless the court otherwise orders (/) . But the plaintiff may except to the master's report, and bring on the mat- ter to be argued before the court (m) ; and if he conceives the plea to be defective, in point of form or otherwise, independent of the mere truth of the fact pleaded, he may set down the plea to be argued as in the case of pleas in general (//). (k) Orel, in Ch. 98, ed. 1/39. Mich. 1771, on Exceptions. (/) See Crofts v. Worthy, (n) Ord. in Ch.l 76, Ed. Bea. 1 Ca. in Ch. 241. See above, See Urlin v. , 1 Vera. 332; pp. 278, 288. and Foster v. Vassal!, 3 Atk. (m) Durrand v. Hutchinson, 587. CHAPTER II. [306] Section II. — Part III. Of Answers and Disclaimers ; and of Demurrers, Picas, Answers, and Disclaimers, or any two or more of them, jointly. If a plea is overruled, the defendant may insist on the same matter by way of answer {a) . And what- ever part of the bill is not covered by demurrer or pica, must be defended by answer (//) , unless the de- fendant disclaims (1). In treating of answers and dis- (a) 2 A r es. 492 ; Earl of 1 Cox, R. 228. Suffolk v. Green, 1 Atk. 450 ; (6) Prac. Reg. Wy. Ed. (1) See note (1) to p. 380. 358 ANSWERS. [Chap. II. Necessity of dis- covering what is material. [307] claimers will be considered — 1. The general nature of answers ; 2. Their form ; 3. The manner in which their sufficiency is decided upon, and deficiency supplied; and 4, The nature and form of dis- claimers. 1 . It has been already (c) mentioned, that every plaintiff is entitled to a discovery from the defendant of the matters charged in the bill (d) (1), provided they are necessary to ascertain facts material to the merits of his case, and to enable him to obtain a de- cree (2) . The plaintiff may require this discovery, (c) Page 9. (d) Where the defendants are numerous, each, it seems, is entitled to put in a separate answer, although thev should have but one common defence. Van Saudau v. Moore, 1 Russ. R. 441, on appeal. See S. C. 2 Sim. & Stu. 509. [But see 1^,. Headlam's Dan. C. P. 695.] (1) See note (1) top. 45. The 17th, 18th, and 19th orders of August, 1841, do not apply to the case of a sole defendant. Lynch v. Lecesne, 12 Law J. (N. S.) 127, V. C. W. Necessity of put- If a bill requires a defendant to answer, but he is not required ting in some „ . , „ „ , answer, though to answer any oi the interrogatories by a note at the toot ot the bill ; in such case he need not answer any of the interrogatories, but he must put in some answer : for he is only exempted from giving a discovery of facts, and not from stating his line of de- fence. Wilson v. Jones, 7 Jur. 1102, V. C. E. (2) See Janson v. Solarte, 2 Y. & C. Ex. 132. The rule that where a defendant submits to answer, he must answer fully, does not apply in such a way as to oblige a defendant to discover that which would be altogether immaterial to the relief sought by the bill. (Wood v. Hitchings, 3 Beav. 504 ; Codrington v. Codrington, 3 Sim. 519). For he need not answer at all as to such irrelevant matter ; or, if it is desirable for his own interest, he may answer only as to a part of it. Wood v. Hitchings, 3 Beav. 504. Where an information, after alleging a misapplication of certain Answer of a sole defendant. not required to answer any interrogatory. Answer as to ir- relevant matter. S. II. P. III.] ansu-i 359 either because he cannot prove the facts, or in aid of proof, and to avoid expense (e). He is also entitled to a discovery of matters necessary to substantiate the proceedings, and make them regular and effectual in a court of equity (/). However, if the discovery sought by a bill is matter of scandal (1), or will subject the defendant to any pain, penalty, or forfeiture (2) , he (e) 2 Atk. 241. 38, Coop. R. 214. ( / ) 2 Ves, 492 ; 6 Ves. 37, funds vested in the defendants upon certain trusts, alleges that there are certain other funds vested in the defendants upon the like trusts, hut it does not charge any misapplication of such other funds, or anything which can show that the interference of the court is necessary with respect to them, the allegation as to the last-mentioned funds is irrelevant, and therefore need not to be answered. Attorney Gen. v. Merchant Tailors' Company, 5 Sim. 828. (1) Where new matter which occurred subsequently to the Kemoviug ^ / l elalous ma filing of an original bill is improperly introduced by amendment, originally Intro- 1 ' •> J duced by amend- illStead of by a supplemental bill, and that matter contains scan- ment. dalous imputations on the character of the defendant, the de- fendant may answer that matter in order to clear his character, without preventing the bill from being dismissed with costs on the ground of the irregularity of introducing the new matter by amendment. Wray v. Hutchinson, 2 M. & K. 235. (2) A defendant is not only not bound to answer any question an^riug'ques- which has a direct tendency to criminate him, hut he is not bound tions tending to • iriinmate or to to answer any question the answer to which may form a link in expwethe defcn- •' * J dant to a torfei- the chain of evidence. Sonthall v. , 2 Coll. Ex. Eq. 308. ««•«. A defendant is not obliged to answer so as to expose himself to a forfeiture. So that an heir at law is not obliged to answer in- terrogatories as to the testator's sanity, where there is a clause in the will revoking an annuity in the event of the heir disputing his will or his competency to make it. And he may avail him- self of this exemption although he answers in part, and in so doing may have made admissions which subject him to the scuu- tter 360 answers. [Chap. II. is not bound to make it (g) ; and if he does not think proper to defend himself from the discovery by de- murrer or plea, according to the circumstances of the case, he has been permitted by answer to insist that he is not obliged to make the discovery (h) . In this (y) 15 Ves. 3/8; and see Paxton y.Uovylas, 19 Ves. 225; authorities cited above, p. 228. Parkhurst v. Lowten, 1 Meriv. (Ji) 3 P. Wms. 238; Finch 391 ; 1 Swanst. 192,305. It v. Finch, 2 Ves. 491 ; Honey- has also been held, that a pur- wood v. Selwin, 3 Atk. 2/6 ; chaser for a valuable consider- operation of the revocation clause. Cooke v. Turner,- 14 Sim. 218, And so a husband who obtained his marriage licence by falsely swearing that the parent's consent to the marriage was given, may by answer decline answering questions relating to the minority of the lady, and the non-consent of her parent, in ah information under the Marriage Act, 4 Geo. IV. c. 76, s; 23, praying for a declaration that he has forfeited his interest in his wife's pro- perty: for such a case is within the general rule as to forfeiture. Attorney Gen. v. Lucas, 2 Hare, 566. But a party cannot protect himself from discovering whether the consideration of a security on which he has brought an action against the plaintiff in equity was money lent at play, although the stat. 9 Anne, c. 14, s. 1, makes securities for money so lent void ; for such a discovery does not subject the defendant in equity to a penalty or forfeiture, but merely prevents him from succeeding in his action. Sloman v. Kelly, 4 Y. & C, Eq. Ex. 169. Answer' to inter- Where the interrogatories of a bill relate to matters as to which matters as which the plaintiff is entitled to a discovery, and also toother fendantVnlrt 6 " matters an admission of which would subject the defendant to aremUedu^ 8 with an indictment or penalties, and which do not form the foundation ,1th " s- of any part of the relief which is prayed, and the two subjects are so mixed in the interrogatories that the defendant cannot separate them in his answer, the plaintiff cannot insist upon an answer to any part of the interrogatories. Earl of Lichfield v. Bond, 12 Law J. (N. S.) 329, M. R. S. II. P.IIL] ANSWERS. 361 case the plaintiff may except to the defendant's [308] answer as insufficient ; and upon that exception it will be determined whether the defendant is or is ation, without notice, may by witness being made a defend- answei protect himself from ant (see Cookson v. Ellison, 2 making discovery of facts which Bro. C. C. 252 ; Cartwriyht v. might defeat his enjoyment. Ilately, 3 Bro. C. C.238; Shep- (Jerrard v. Sanders, 2Vcs. Jun. herd v. Roberts, 3 Bro. C. C. 45 1 ; N. C. 4 Bro. C. C. 322 ; 239.; 7 Yes. 288 ; 1 1 Ves. -12 ; 15 Ves. 3/8 ; 1 Ball & B. 325 ; but sec Newman v. Godfrey, and see Lord Rancliffe v. Par- 2 Bro. C. C. 332), unless per- hyns, 6 Dow P. C. 230 ; but see haps he be a professional per- Ocey v. Leiyhton, 2 Sim. & Stu. son, and the discovery be sought 234.) It seems that in every of matters confidentially corn- other case, even in thatof a mere municated to him (1). Stratford (1) As the cases respecting privileged communications and documents, and respecting matters relating to the defendant's title, which have been specially noticed by Lord Kedesdale, and those upon the same subject which have been adjudged during the period to which the editor's labours are confined, embrace only a portion of that subject ; and as that, subject is of con- siderable extent, and involved in much controversy and difficulty, and comprises many cases which are more properly practice cases than cases on pleading, the editor deems it advisable to refer the reader to the learned works on Discovery by Sir James AVig- ram and Mr. Hare, and to Mr. Daniell's valuable Treatise on Chancery Practice, in which (as the editor believes) a complete view of the points referred to in this note may be obtained. A statement of some decisions only might tend to mislead. Of the cases on privileged communications and documents, within the last twenty years, the following may, however, be named: Flight v. Robinson, 8 Beav. 22; Holmes v. Raddeley, G Beav. 521 ; Steele v. Stewart, 13 Sim. 533, and 1 Phil. 171 ; Mayor and Corporation of Dartmouth v. Holdsworth, 10 Sim. 170* ; Garland v. Scott, 3 Sim. 396 ; Maden \. Veevers, 7 Beav. 489 ; Hughes v. Ganions, G Beav. 352; Desborouyh v. Rawlins, 3 My. & C. 515; Greenleaf v.King, 1 Beav. 137; Jf'oods v. Woods, 1 Hare, 83 ; Preston v. Carr, 1 Y. & J. ; Greenouyh v. Gas/all, 1 M. & K, 100; Earl of Glenyall v. Erazer, 2 Hare, 99, 105; Alt. 362 answers. [Chap. II. sho,u n d a b?i ence not obliged to make the discovery (i). If the de- fence which can be made to a bill consists of a variety of circumstances, so that it is not proper v. Hoc/an, 2 Ball & B. 164 ; if Madd. 70 ; v. Harrison* a person answers at all, he may 4 Madd. 252, and 1 Sim. & Stu. be required to answer all the 6. See, however, the distinc- facts stated in the bill, from tion taken below, pp. 369, 3/0, which he does not distinctly 3 1 2, between the cases in which protect himself from answering the defendant oy answer denies by either of the other modes of the title of the plaintiff, in re- defence (1). See Bolder v .Lord spect of which the discovery is Hunting field, 1 1 Ves. 283, in sought, and those in which he which the earlier cases are thereby denies the validity of cited, Faulder v. Stuart, 11 the ground upon which that title Ves. 296 ; Shaw v. Ching, 1 1 is alleged by the plaintiff to be Ves. 303 ; Rowe v. Teed, 1 5 founded ; and see below, p. 377, Ves. 372; Somerville v. Mac- note (q). kay, 16 Ves. 382 ; Leonard v. (i) 2 Ves. Jun. 87 ; and see Leonard, 1 Ball & B. 323 ; 3 1 Ves. Jun. 294, note. Gen. v. Lucas, 2 Hare, 566 ; Clagett v. Phillips, 2 Y. & C. Ch. C. 82; Herring v. Cloberry, 1 Phil. 91, 93 ; Lord Walsingham v. Goodriche, 3 Hare, 122 ; Bolton v. Corporation of Liverpool, 1 M. & K. 95 ; Hughes v. Biddulph, 4 Russ. 190. (1) By the 38th order of Aug. 1841, "a defendant shall be at liberty by answer to decline answering any interrogatory or part of an interrogatory, from answering which he might have protected himself by demurrer ; and he shall be at liberty so to decline, notwithstanding he shall answer other parts of the bill from which he might have protected himself by demurrer." Discovery of a Where a bill seeks to set aside an agreement for the pur- toTbi'n fbr"set- er chase of a secret, on the ground of fraud and of the defendant purchase 6 thereof, possessing no such secret, the defendant cannot demur to such of the interrogatories as seek a discovery of the nature of the secret, although by the agreement, as stated in the bill, both parties covenant that they will not divulge or make known the secret ; and although the defendant, in his answer to the remainder of the bill, denies all fraud, and insists on the efficacy of the secret process, and that he had communicated the secret to the plaintiff. For the defendant is bound to discover the nature of the secret, be- S. II. P. III.] ANSWERS. 363 to be offered by way of plea (k) ; or if it is doubt- ful whether as a plea it will hold; the defendant may set forth the whole by way of answer, and pray (k) Chapman v. Turner, 1 Atk. ."»1. cause a disclosure is necessary even for the trial of the case ; inas- much as the only mode in which such fraud can be established, is, by comparing that which the defendant alleges to be his secret with that which was commonly or previously known to other persons. Carter \. Goetze, 1 Keen, 581. Prior to the 38th order of August, 1841, it was a rule that he "•"•"£* 55, o » answering full} - . who answered at all must answer fully, so that a defendant who did not protect himself from answering by plea, on the ground that he was a purchaser for valuable consideration without notice, but submitted to answer in part, could not protect himself, on the ground of his purchase, from answering fully. Ovey v. Leighton, 2 S. & S. 234. And if a defendant was interrogated as to whether he had purchased certain judgments, and if so, for what consider- ations, and he did not demur or plead, but admitted by answer that he purchased such incumbrances ; he could not refuse to discover what he gave for them, although he said that he was a purchaser for valuable consideration, without notice of the plaintiff's equity. Lancaster v. Erors, 1 Phil. 349. By the 38th order of Aug. 1841, " a defendant shall be at liberty by answer to decline answering any interrogatory or part of an interrogatory, from answering which he might have protected himself by demurrer ; and he shall be at liberty so to decline, notwithstanding he shall answer other parts of the bill from which he might have protected himself by demurrer." According to some decisions, this order applies where the bill is generally demurrable, as well as to a case where a demurrer would lie to a particular question. Fat rt home v. Weston, 3 Hare, 393. So that a defendant, having answered part of a bill, may protect himself from answering another part comprising any number of interrogatories he pleases, on the ground that he might have protected himself from auswering that other part by de- murrer to the whole bill. Mason v. Wakeman, 10 Jur. 628 ; Drake v. Drake, 2 Hare, 647. But according to the case of Baddeleij v. Cvrioen, this order does not extend to the case of interrogatories objectionable onlv on the ground that a demurrer to the whole bill, if filed in time, 364 answers. [Chap. II. the same benefit of so much as goes in bar, as if it had been pleaded to the bill (/) . Or if the defendant can offer a matter of plea which would be a complete bar, but has no occasion to protect himself from any discovery sought by the bill, and can offer circum- stances which he conceives to be favourable to his case, and which he could not offer together with a plea, he may set forth the whole matter in the same [309] manner. Thus, if a purchaser for a valuable consi- deration, clear of all charges of fraud or notice, can offer additional circumstances in his favour, which he cannot set forth by way of plea, or of answer to sup- (l) See Norton v. Turvill, 2 P. Wms. 144. would have been sustainable : for, if it did, it would throw on the master the obligation of deciding whether a bill is or is not open to a general demurrer — an obligation that seems not to have belonged to his office. 2 Coll. 151. The 38th order applies even where the only ground of de- murrer is that the suit is defective for want of parties. Kaye v. Wall, 4 Hare, 127. If specific relief is prayed, in addition to discovery in aid of a defence to an action at law, the defendant is not bound to give any discovery which is not incidental to the relief sought by the bill, and which can only be used at law ; because the discovery would be obtained without paying that price for it, namely, the costs of the suit, which, in the case of a pure bill of discovery, the plaintiff is required to pay. Desborough v. Curlewis, 3 Y. & C. Eq. Ex. 175 ; Jones v. Maund, 3 Y. & C. Eq. Ex. 357. One set of defendants are not bound to answer questions upon the cases of other defendants. Tomlinson v. Swinnerton, 2 Jur. 393, V. C. E. A partner resident in England of a foreign firm is not bound to set forth a schedule of books, &c, relating to the business of such firm, and in their custody ; because their production could not be enforced. Martineau v. Cox, 2 Y. & C. 638. Where one of the assignees of a bankrupt states, by way of answer to a bill, that he only acted as assignee in some trifling S. II. P. III.] ANSWERS. 365 port a pica, as the expending a considerable sum of money in improvements, with the knowledge of the plaintiff, it may be more prudent to set out the whole by way of answer than to rely on the single defence by way of plea, unless it is material to prevent disclosure of any circumstance attending his title. For, a defence which, if insisted on by a plea, would protect the defendant from a discovery, will not in general do so if offered by way of answer (/) . To so Modwf answer, much of the bill as it is necessary and material for the defendant to answer (m) he must speak directly (1), (/) 2 Eq. Ca. Ab. 67; answer so much only of the bill Richardson v. Mitchell, Sel. as applies to him (1). Cdop. R. Ca. in Cha. 51 ; above, p. 360, 215. And further, with respect note (/*). to materiality of answer, see (m) It seems, a mere trus- below, 377, note (q). tee, incumbrancer, or heir, need particulars not connected with the matters in the bill mentioned, and that he is wholly ignorant of the matters set forth in the bill, and cannot make any other answer thereto as to his know- ledge, belief, or otherwise, this answer is sufficient. Jones v. Wiggins, 2 & Y. J. 385. (1) There is no rule that a man must either admit or deny his Averment of ig- cii-/.i ii. norance as to the own recent tacts, bo that it he states that he is unable to set defendant's own forth as to his knowledge, remembrance, information, and belief, r) (I). Thus where a [310] (p) 2 Eq. Ca. Ab. 6/ ; Pax- Wharton, 1 Sim. & Stu. 235 ; tons case, Sel. Ca. in Ch. 53 ; and see Amhurst v. King, 2 Prout v. Underwood, 2 Cox, R. Sim. & Stu. 18.'}. 135 ; 6 Ves. 792 ; Wharton v. he cannot answer any of them : as where he says that he cannot set forth when he parted with papers, and what has become of them. Tipping v. Clarke, 2 Hare, 390. And where an information prays an account, and payment of arrears of rent out of land, and that for that purpose the lands may be ascertained and distinguished, and it charges that the defendant has in his possession deeds relating to the land, and to the rent, whereby the truth of the allegations in the information would appear, and the answer denies the defendant's possession of any deeds relating to the land and the rent, or whereby the truth of the matters mentioned in the information would appear, the answer is insufficient : for the defendant is bound to state whether or not he has any deeds relating even to the land alone, for the purpose of enabling the plaintiff to identify the land, which is one link in the plaintiff's title. Attorney '-General v. Lord Dinorben, 2 Jur. 1 29, Ex. Eq. (1) With regard to the sufficiency of an answer, Sir J. Wigram, Sufficiency of V. C, observed in Tipping v. Clarke : " If the defendant will answer- simply answer in the terms of the bill, he avoids all difficulty on the subject. But if, instead of doing so, he gives an answer which is not precise with reference to all the matters on which he is interrogated, and then endeavours to shelter himself under a general denial, coupled with the words ' except as aforesaid,' or similar expressions, he makes it often difficult to decide whether the answer is sufficient or not. The rule, since I have known the practice of the court, has been, that wherever the defendant denies the bill to be true, * except as aforesaid,' or 'except as appears by the other parts of the answer,' if there be not found on the answer a clear and sufficient statement which to a reason- able extent meets the whole case, the answer is deemed to be evasive." 2 Hare, 383. The court never requires a plaintiff to be satisfied with a mere 368 answers. [Chap. II. bill required a general account, and at the same time called upon the defendant to set forth whether be had received particular sums of money specified in the bill, with many circumstances respecting the times when, and of whom, and on what accounts such sums had been received, it was determined, that setting forth a general account by way of schedule to the answer, and referring to it as containing a full account of all sums of money received by the de- fendant, was not sufficient, and the plaintiff having excepted to the answer on this ground, the exception was allowed ; the court being of opinion that the de- fendant was bound to answer specifically to the speci- fic charges in the bill, and that it was not sufficient for him to say generally, that he had in the schedule set forth an account of all sums received by him (q) (1). (g) Hepburn v. Durand, rep. 1 Bro. C. C. 503 ; but see 20th Nov. 1779, in Cha. ; S. C. White v. Williams, 8 Ves. 193. general denial in answer to a specific charge. Tipping v. Clarke, 2 Hare, 389. seuicl account. 0) A defendant is not bound to set forth a settled account, if the bill charges that if there was any settled account, the same was fraudulent and collusive, and merely prays a discovery in respect of such pretended settled account. Davies v. Bavies, 1 Keen, 534. Answer setting A. defendant is not bound to set forth accounts where they are forth lengthy ac- . . , „ . . . , counts and nu- of very great length : it is sufficient in such a case to refer to the merousrlocu- \ , , , , . „ , .. . ., .„ ments. books in which they are to be found. Nor is it necessary to specify all the documents relating to the subject, where that would oc- cupy a schedule of an oppressive length : it is sufficient to specify the most important ; and then to say that there are others con- tained in boxes or bundles, marked A, B, &c. Christian v. Tay- lor, 11 Sim. 401. Answer setting Where a banker is required to set forth the particulars of the out a banking \ account. consideration given by him for a bill of exchange, and he answers that the consideration consisted of cash, bills, and notes, drawn S. II. P. III.] ANSWERS. 3f,9 Although the defendant by his answer denies the Necessity of dis- c> •" covery, where the title of the plaintiff, yet in many cases he must make ^Snars 16 * a discovery prayed by the bill, though not material to wwcb mm ».' J r J J o teriality of the the plaintiff's title, and though the plaintiff, if he has ^ST yde " no title, can have no benefit from the discovery. As if a bill is filed for tithes, praying a discovery of the quantity of land in the defendant's possession, and of the value of the tithes, though the defendant insists upon a modus, or upon an exemption from payment of tithes, or absolutely denies the plaintiff's title (r), [311] he must yet answer to the quantity of land and value of the tithes (s). Or if a bill is filed against an executor by a creditor of the testator, the executor must admit assets, or set forth an account, though he denies the debt(0 (1). (r) Sec, however, Gilb. Ca. (t) Randal v. Head, Hardr. in Cha. 229. 188; see Sweet v. Young, Ambl. (s) Langham v. , Hardr. 353 ; 1 1 Ves. 304. 130. out of his banking house from time to time, in the regular course of dealing between a banker and his customers, this is a sufficient answer, without setting out the banking account. Webster v. Threlfall, 2 S. & S. 190. A defendant may set out accounts at length, and copies of pro- Setting out ac- ... ' counts and copies missory notes, undertakings, acknowledgments, and cheques, of promissory where the interrogatories in the bill appear, in effect, though not &c literally, to require it, and where it appears necessary to refer to them, in order duly to qualify the defendant's statements as to his knowledge of the cash transactions to which the interrogatories relate. Davis v. Cripps, 2 Y. & C. Ch. 135. Where it is necessary for the sake of perspicuity, a defendant setting forth in- . /• ,i .i • /. . . ii, .i formation in may set forth the information required in a schedule with co- columns. lumns. Gompertz v. Best, 1 Y. & C. Eq. Ex. 114. (1) If a bill is filed by persons claiming to be next of kin, Necessity for , ,i i • . . . , , , makinir discoveiy, against the administrator, praying the usual accounts, he must set though plaintiff 'a them forth, although by bis answer he denies that the plaintiffs B B 370 answers. [Chap. II. But where the defendant sets up a title in him- self, apparently good, and which the plaintiff must remove to found his own title, the defendant is not generally compelled to make any discovery not ma- terial to the trial of the question of title. Thus, where a testator devised his real estate to his nephew for life, with remainder to his first and other sons in tail, with reversion to his right heirs, and made his nephew executor and residuary legatee of his will, and on the death of the nephew his son entered as tenant in tail under the will ; upon a bill filed by the heir at law of the testator, insisting that the son was illegitimate, that the limitations in the will were therefore spent, and that the plaintiff became entitled as heir to the real estate, and praying an account of the personal estate, and application thereof in dis- charge of debts and incumbrances on the real estate, the defendants against whom the account was sought insisted on the title of the son as tenant in tail under the will, and that they were not bound to discover the personal estate until the plaintiff had established [3 1 2] his title . Exceptions having been taken to the answer, and allowed by the master, on exception to his re- port, the exceptions to the answer were overruled ; the court distinguishing this case, which showed a prima facie title in the defendant, the son of the nephew, from a mere denial of the plaintiff's title (it). (u) GethuiY. Gale, 29th Oct. See also Gunn v. Prior, cited 1739, in Chan. M. R. ; Ambl. 11 Yes. Jun. 291 ; S. C. Dick. 354, cited in Sweet v. Young. 657; 1 Cox, R. 197. are next of kin, and he himself claims to be one of the next of kin. Dott v. Hayes, 10 Jur. '528. S. II. P. III.] ANSWERS. 371 So when a bill claimed the tithe of rabbits on an alleged custom, and the defendant denied the cus- tom, it was determined that the defendant was not bound to set forth an account of the rabbits alleged to be tithable (.r) ; and a like determination was made upon a claim of wharfage, against common right, the title not having been established at law (y). But where a discovery is in any degree connected with the title, it should seem that a defendant cannot protect himself by answer from making the discovery; and in the case of an account required, wholly inde- pendent of the title, the court has declined laying down any general rule (z), deciding ordinarily upon the circumstances of the particular case. Thus, to a bill stating a partnership, and seeking an account of transactions of the alleged partnership, the defendant by his answer denied the partnership, and declined setting forth the account required, insisting that the plaintiff was only his servant ; and the court, con- ceiving the account sought not to be material to the [313] title, overruled exceptions to the answer, for not setting forth the account (a) . And where a plea has been ordered to stand for an answer, with liberty to except to it as an insufficient answer, the court has (x) Randal v. Head, Hardr. and 2 Cox, R. 282. See Hall 188 ; S. C. Eq. Ca. Ab. 35. y.Nvfes,3 Bro.C.C. 483; Mar- (y) Northleiyh v. Luscombe, quis of Donnegal v. Stewart, Ambl. 612. 3 Ves. 446 ; Phelips v. Caney, (z) Hall v. Noyes, Ld. Chan. 4 Ves. 107 ; 11 Ves. 42, 293 ; 13th March, 1792. Webster v. Threlfall, 2 Sim. & (a) Jacobs v. Goodman, in Stu. 190; but see v. Har- Exch. 16th Nov. 1791 ; S. C. rison, 4 Madd. 252. rep. 3 Bro. C. C. 487, note ; B B2 372 answers. [Chap. II. sometimes limited the power of excepting, so as to protect the defendant from setting forth accounts not material to the plaintiff's title, where that title has been very doubtful (b) . scandal and im- If an answer ffoes out of the bill to state some pertinence. matter not material to the defendant's case, it will be deemed impertinent (1), and the matter, upon (6) Earl of Strafford v. 4 Bro. C. C. 439 ; Bayley v. Blaheway, 6 Bro. P. C. 630, Adams, 6 Ves. 586. Toml. Ed. ; King v. Holcombe, impertinence. (i) Any matter in an answer is impertinent, except that which is called for by the bill, or would be material to the defence with re- ference to the order or decree which may be grounded on the bill to which answer is made. Hence, if an answer to a mere bill of revivor contains long statements introduced for the purpose of showing that the pro- ceedings of the plaintiff have been irregular and oppressive, such statements are impertinent ; because the defendant can have no advantage from them with reference to the order to revive, and his proper way of objecting to irregularity and oppression is by way of motion or petition. Waystaff v. Bryan, I Russ. & My. 28. And the answer to a bill of revivor, filed after a decree, must not go into the merits of the original cause, whether the matter he introduces existed at the time of the decree, or has arisen since. Such matter, if stated, is impertinent. Devaynes v. Morris, 1 My. & C. 213. But a defendant to a bill, filed to revive a suit on the occasion of an abatement caused by the death or marriage of a plaintiff, may, without impertinence, state that he the defendant has become bankrupt, and object that the plaintiff is not entitled to the same decree as if the defendant had not become bankrupt, although such statements do not tend to show that the plaintiff is not en- titled to revive the suit. Langley v. Fisher, 10 Sim. 345. Mere unneces- As a general rule, words are not impertinent because unneces- pa^^es'. 19 ° r sar y> wnere tne 7 are not irrelevant. Marshall v. Mellersh, 6 Beav. 558. And where a defendant is called upon to set forth a S. II. P. III.] ANSWERS. 373 application to the court, will be expunged (c). So in an answer, as in a bill, if anything scandalous is inserted, the scandal will be expunged by order of t lie court ( i.\ n Further answers indeed is considered as forming part of, the first an- aQ d answers to ° r amended bills. swer. So an answer to an amended bill is considered as part of the answer to the original bill(Z>). There- fore if the defendant in a further answer, or an answer to an amended bill, repeats anything con- tained in a former answer (c), the repetition, unless it varies the defence in point of substance, or is otherwise necessary or expedient, will be considered as impertinent (d) ; and if upon reference to a master such parts of the answer are reported to be imper- tinent, they will be struck out as such, with costs, which in strictness are to be paid by the counsel who signed the answer {e). 4. A defendant may disclaim all right or title to Disclaimers, the matter in demand by the plaintiff's bill, or by any part of it(f). But a disclaimer cannot often be put in alone. For if the defendant has been made a party by mistake, having at the time no interest in the matter in question, yet as he may have had an interest which he may have parted with, the plaintiff may require an answer sufficient to ascertain whether that is the fact or not ; and, if [319] the defendant has had an interest which he has Turn. R. 2f>3, in accordance (e) Smith v. Serle, 14 Ves. with Jones v. Saxby, mentioned 415. 1 Swan st. 194, note (a), and (d) 3 Atk. 303. overruling Griffith v. Wood, 1 (e) Ord. in Cha. 167, Ed. Yes. & Bea. 541. Bea. ; 16 Ves. 234. (b) 3 Atk. 303 ; Dick. 583 ; (/) SeeArchboldv.Borrold, Spurrier v. Fitzgerald, 6 Ves. Gary, R. 09 ; Setonv. Slade, 7 548 ; and see Ovey v. Leiyhton, Ves. 2G5. 2 Sim. & Stu. 234. 380 answers. [Chap. II. parted with, an answer may be also necessary to enable the plaintiff to make the proper party, in- stead of the defendant disclaiming (1) . The form of a disclaimer alone seems to be simply an assertion that the defendant disclaims all right and title to the matter in demand, and in some instances, from the nature of the case, this may perhaps be sufficient ; but the forms given in the books of practice are all of an answer and disclaimer. If the defendant disclaims, the court will in gene- ral dismiss the bill as against him with costs. But it has been said, that if the plaintiff shows a probable cause for exhibiting the bill, he may pray a decree against the defendant, upon the ground of the dis- claimer {h). Where the defendant disclaims the plaintiff ought not to reply (i). (h) Prac. Reg. 175, Wy. (i) Prac. Reg. 176, Wy.Ed.; Ed. 3 Atk. 582. Necessity of a (1) A defendant cannot shelter himself from the necessity of disclaimer being . . ... . . - .. . . . accompanied by putting in a iu 11 answer, by disclaimer ot all interest m the matters an answer. in the suit, where, although he may have no interest hut may have assigned all his interest, yet he is accountable to the plaintiff or to a co-defendant : for a man cannot disclaim his liability. Glassington v. Thwaites, 2 Russ. 458. And where a bill seeks to compel trustees to pay a fund to the plaintiff, and prays that the costs of the suit may be paid by other defendants, on the ground that they had rendered the suit necessary by setting up a claim to the fund, and the bill con- tains divers allegations in support of that fact ; it is not sufficient for them to put in what they call an answer and disclaimer, merely stating that they do not claim, and never claimed, any interest in the fund ; for they must answer ever}- allegation which goes to show that a claim was set up. Graham v. Coajje, 3 My. & C. fi38. S. II. P. III.] ANSWERS. 381 A defendant may demur to one part of a bill, SSSffftiS* 1 1 " BMW Mil. plead to another, answer to another, and disclaim as to another. But all these defences must clearly refer to separate and distinct parts of the bill. For the defendant cannot plead to that part to which he has already demurred ; neither can he answer to any part to which he has either demurred or pleaded (/.•) (1) ; the demurrer demanding the judg- ment of the court whether he shall make any an- swer, and the plea whether he shall make any other answer than what is contained in the plea. Nor [320] can the defendant by answer claim what by dis- claimer he has declared he has no right to (/) . A plea (m) or answer (w) will therefore overrule a de- murrer, and an answer (o) a plea (1) ; and if a dis- claimer and answer are inconsistent, the matter will be taken most strongly against the defendant upon the disclaimer. (*) 2 Bro. Pari. Ca. 20, 21. R. 259. (/) Sec the case of Seton v. (o) Pierce v. Johns, Bunb. Slade, 7 Ves. 265. 1 1 ; Cottington v. Fletcher, (m) Dormer v. Fortescue, 2 Atk. 155; 3 P. Wms. 81 ; 2 Atk. 282 ; 3 P. Wms. 80, 81; Dobbyn v. Barker, 5 Bro. P. C. Arnold's case, Gilb. For. Rom. 5/3, Toml. Ed. ; Earl of Clan- 59. rickard v. Bonrke, G Bro. P. C. (w) Abraham v. Dodyson, 4, Toml. Ed. ; 1 Sim. & Stu. G ; 2 Atk. 15/ ; 3 P. Wms. 81 ; Watkinsx. Stone, 2 Sim. & Stu. Sherwood v. Clack, 9 Pri. Ex. 5G0. (1) See note (1), page 248, supra. 382 [321] CHAPTER THE THIRD. OF REPLICATIONS AND THEIR CONSEQUENCES. A replication is the plaintiff's answer or reply to the defendant's plea or answer. Formerly, if the defendant by his plea or answer offered new matter the plaintiff replied specially (a) ; otherwise the re- plication was merely a general denial of the truth of the plea or answer, and of the sufficiency of the matter alleged in it to bar the plaintiff's suit, and an assertion of the truth and sufficiency of the bill. The consequence of a special replication was a re- joinder, by which the defendant asserted the truth and sufficiency of his answer, and traversed every material part of the replication (/;). If the parties were not then at issue by reason of some new matter disclosed in the rejoinder which required answer, the plaintiff might surrejoin to the rejoinder, and the defendant might in like manner ad-surrejoin, or rebut, to the surrejoinder (c). The inconvenience, [32-2] delay, and unnecessary length of pleading, arising from these various allegations on each side (d), oc- («) Ord. in Ch. 70, Ed. Bea. Prac. Reg. 371, Wy. Ed. (b) 2 West. Sym. Chan. 1 95, (d) See Ord. in Cha. 70, Ed. a. 232, b. 246, b. Bea. (c) West.Symb. Cha. 195,a.; Chap. III.] REPLICATIONS. 383 casioned an alteration in the practice. Special re- plications, with all their consequences, are now out of use (e), and the plaintiff is to be relieved accord- ing to the form of the bill, whatever new matters may have been introduced by the defendant's plea or answer (f). But if the plaintiff conceives, from any matter offered by the defendant's plea or answer, that his bill is not properly adapted to his case, he may obtain leave (g) to amend the bill (h), and suit it to his case, as he shall be advised (i). To this amended bill the defendant may make such defence as he shall think proper, whether required by the plaintiff to answer it or not (k). (e) Prac. Reg. 372, Wy. Ed. Indeed if a plaintiff is disposed to controvert a part of a case made by the defendant's answer, and to admit the rest, he may still put in a replication so far special, that it is confined to the particular matter contro- verted, instead of being a ge- neral denial of the truth of the whole answer ; and then the defendant is put only to proof of the matter replied to. (/) Prac. Keg. 372, Wy. Ed. (ff) See 1 Ves. Jun. 448. (h) And this will be per- mitted after replication ; and leave will be granted to the plaintiff to withdraw the repli- cation and amend the bill. See Pott v. Reynolds, 3 Atk. 565 ; Pitt v. Watts, 16 Ves. 126 ; Cowdell v. Tatlock, 3 Ves. & B. 1 9 ; Lord Kilcourcy v. Ley, 4 Madd. 212. (t) As to the extent to which this liberty may be carried, see 2 Sch. & Lefr. 9; Seeley v. Boehm, 2 Madd. R. 176 ; Maz- zaredo v. Maitland, 3 Madd. 66. As to the consequence of mak- ing an entirely new case by the amendment, see Mavor v. Dry, 2 Sim. & Stu. 113. And as to the adding or striking out a prayer for relief, see Butter- worth v. Bailey, 15 Ves. 358 ; Earl of Cholmondeley v. Lord Clinton, 2 Ves. & B. 113. But it may be observed that the plaintiff may not amend his bill after plea to part thereof has been allowed, without leave of the court. Taylor v. Shaw, 2 Sim. & Stu. 12. (k) The original bill is ren- dered nugatory by amendment, [323] 384 replications. [Chap. III. According to the present course of the court, al- though rejoinders are disused, yet the plaintiff, after replication, must serve upon the defendant a subpoena requiring him to appear to rejoin, unless he will appear gratis (/) (1). The effect of this process is merely to put the cause completely at issue between the parties. For now, immediately after the defen- dant has appeared to rejoin gratis, or after the return of a subpoena to rejoin served on the defendant, and which by order obtained of course is now usually made returnable immediately, and served on the de- fendant's clerk in court, the parties may proceed to the examination of witnesses to support the facts alleged by the pleadings on each side (»z) . Where by mistake a replication has not been filed, and yet witnesses have been examined, the court has per- mitted the replication to be filed nunc pro tunc («). 3 Madd. 429 ; and if the altera- Flower v. Herbert, Dick. 349. tion be so considerable as, ac- (»«) Mosely, 296; Prac. Reg. cording to tlie practice of the 3/1, Wy. Ed. It may be no- court, to make it necessary ticed that leave will in some that a new ingrossment should instances be given to withdraw be filed as of record, counsel's a rejoinder and rejoin de novo. signature must be affixed there- See Berks v. Wigan, 1 Ves. & to. Kirkley v. Burton, 5 Madd. B. 221 ; Brickwood v. Miller, 3/8 ; Webster v. Threlfall, 1 1 Meriv. 4. Sim. & Stu. 1 35 ; Pitt v. Mack- (?i) Rodney v. Hare, Mosely, lew, 1 Sim. & Stu. 136, n. 296. (I) Anon. Mos. 123, 296; (1) By the 93rd order of May, 1845, no subpoena to rejoin is tobe issued, but upon the filing of the replication therein prescribed, the cause is to be completely at issue. 385 CHAPTER THE FOURTH. [324] OF INCIDENTS TO PLEADINGS IN GENERAL. In the preceding chapters have been considered the MonSm? 1 . ing. nature of the pleadings used in the equitable jurisdic- tion of the court of chancery, and the manner in which they are brought to a termination. Before the pro- ceedings arrive at that point the court will frequently permit the pleadings filed to be altered, as the pur- poses of parties may require (a) (1), except in the case of answers put in upon oath, in which the court, for obvious reasons, will not easily suffer any (a) As to the amendment of Dobson v. Leadbeater, 13 Yes. bills, see above, pp. 67, 383 ; 230 ; Merreivether v. Hellish, of demurrers, Glegg v. Leg/i, 13 Ves. 435 ; Wood v. Strick~ 4 Madd. 208 ; Thorpe v. Ma- land, 2 Ves. & B. 150 ; Thomp- caidag, 5 Madd. 218; and son v. Wild, 5 Madd. 82. above, p. 253 ; and of pleas, (1) Where a plaintiff amends his bill, after answer, in such Amended bin in- a manner that the case made or the relief asked by the bill is Sie original bill. totally inconsistent with the case made or the relief asked by the original bill, the bill is demurrable: as where the original bill prays that a bond may be delivered up to be cancelled, on the ground of its having been satisfied, while the amended bill prays that an account may be taken of what is due upon the bond. Cresy v. Beavan, 13 Sim. 351. C C 386 INCIDENTS TO PLEADINGS [ChAP. IV. [325] change to be made (b). (b) A special application is necessary for the purpose, 4 Madd. 27, and the court will not as formerly (see 3 Barn. 51 ; 2 Eq. Ca. Ab. GO ; Whar- ton v. Wharton, 2 Atk. 294 ; Bagly v. Crump, Dick. 35 ; Bedford v. Wharton, Dick. 84 ; Patterson ^Slaughter, Ambl. Supplemental answer to correct a mistake. After the examination of 292 ; and cases cited, 1 Ves. & B. 150, note(ff) ; 10 Ves. 285, 401,) give leave to amend the answer itself, except in the case of an infant defendant, {Savage v. Carroll, 1 Ball & B. 548,) and except in cases of mere clerical error (1), {Griffiths v. Wood, 1 1 Ves. 62 ; Peacock (1) Leave will be given to file a supplemental answer to correct a plain mistake in the original answer. White v. Sayer, 5 Sim. 566. And a supplemental answer will be allowed to be filed to state that a passage was hastily inserted by mistake in the answer after it was ingrossed, where the application is supported by an affidavit as to the mistake, and not opposed by a counter affidavit. Swalloiv v.Baij, 2 Coll. Ch. 133. And leave will be given to file a supplemental answer, even after the cause is in the paper for hearing, in order to correct a date, where the defendant states that he was obliged to insert the date in the former answer from memory, and the correction will have the effect of creating a good defence to the bill. Fulton v. Gil- mour or Gihnore, 8 Beav. 154; 1 Phil. 522. See also Belly. Dunmore, 7 Beav. 283. Leave will also be given to file a supplemental answer to correct a mistake upon a particular point, where the defendant, in his answer, has spoken as to his belief only, with regard to the point, and where the application for leave is supported by an affidavit that he has since been more correctly informed. Frankland v. Over end, 9 Sim. 365. And where a defendant by his answer pleads a modus for all tithes, and afterwards moves to file a supplemental answer stating that he had since discovered that the modus covered part only of the tithes, the court will order the cause to proceed as if the modus had been laid in the manner proposed. Podmore v. Skipwith, 2 Sim. 565. But where a bill is filed against a solicitor for negligence in respect to a deed, and by his answer he admits that the firm to which he belonged were paid for drawing the deed, and that the bill of costs is in his possession ; he will not be allowed to file a Chap. IV.] incidents to pleadings. 387 witnesses (c) no part of the pleadings can be altered v. Duke of Bedford, 1 Ves. & or if it be desired to introduce B. 186 ; White v. Godbold, new matter (1), and it appear 1 Madd. R. 269 ; Faircloth v. that the defendant, at the time Webb, 5 Madd. 73, but see of putting in the original answer, Ridley v. Obee, Wightw. 32,) was not aware thereof, (Wells but, upon its conscience being v. Wood, 10 Ves. 401,) it will satisfied that the defendant permit a supplemental answer ought not to be concluded by to be filed, (Jennings v. Merton the answer as upon record, College, 8 Ves. 79 ; 10 Ves. (10 Ves. 401; 4 Madd. 27; 285; 19 Ves. 584; Curling v. and see Tennant v. Wilsmore, Marquis Townshend, 19 Ves. 2 Anstr. 362,) if the matter 628 ; Strange v. Collins, 2 Ves. already brought forward be & B. 163 ; Edwards v. M'Leay, ambiguously stated, and it ap- 2 Ves. &B. 256; 4 Madd. 407,) pear that the defendant meant as a mode by which justice may to swear to it in the sense be more surely administered* which he seeks upon his appli- 19 Ves. 631. cation to put upon it, (Livesey (c) As to bills, see Wright v. Wilson, 1 Ves. & B. 149,) v. Howard, 6 Madd. 106, and supplemental answer, denying those admissions, and stating that he had since discovered, on examining his books, that the deed was drawn by his deceased partner gratuitously. Greenwood v. Atkinson, 4 Sim. 54. (1) Leave will be given to a defendant, before publication has Supplemental v ' ~ r answer to Intro. passed, to file a supplemental answer to state information he has duce new mat- received subsequently to the filing of his original answer. Farmer v. Farmer, 6 Jur. 72, V. C. E. So leave will be given, after replication, to file a supplemental answer to a bill for dower, in order to state a fine and non-claim which have been omitted to be stated in the original answer, through ignorance of the levying of the fine. Jackson v. Parish, 1 Sim. 505. And where a plaintiff claims a share of an intestate's estate under the statute of distributions, and the defendant, after filing his answer, discovers that the intestate was domiciled in a foreign country, leave will be given to file a supplemental answer for the purpose of stating that fiat. Tidsivellx. Botvyer, 7 Sim. 64. But after a decree nisi in a tithe suit, the defendant will not be allowed to file a supplemental answer, setting up a modus founded c c 2 388 INCIDENTS TO PLEADINGS. [CHAP. IV. or added to, but under very special circumstances (1), or in consequence of some subsequent event, except, that if the plaintiff at any time discovers that he has not made proper parties to his bill, he may ob- tain leave to amend his bill for the special purpose of adding the necessary parties (d) (2) ; and leave has also been given to amend the prayer under par- above, p. 67. Where no witness Chute v. LadyDacres, 2 Freem. has been examined, an amend- 1 72 ; Mullins v. Simmonds ment has been permitted after Bunb. 186 ; Kingscote v. Bains- pnblication passed. Hastings by, Dick. 485 ; Tennant v. v. Gregory, in the Excheq. Wilsmore, Anstr. 362. 19th Nov. 1782 ; 1 Fowl. Ex- (d) Anon. 2 Atk. 15 ; Good- cheq. Pr. 127; Sanderson v. win v. Goodwin, 3 Atk. 370; Thwaites, in Chan. Trin. 1782. 1 Prax. Aim. Cur. Cane. 546; With respect to answers, see see above, pp. 67, 383. on evidence with which the defendant has subsequently become acquainted, even though the defendant offers to indemnify the plaintiff as to any extra costs occasioned by setting up a new defence; for, in such case, it is impossible to put the plaintiff in the same situation as he would have been in if this defence had been stated on the record in due time. M'Dougal v. Purrier, 4 Russ. 486. (1) Seesiqira, pp. 74 and 75, and notes. Where at the time of amending his bill, a plaintiff has changed his residence, it should be stated by amendment ; for the rule that subsequent facts are the proper subject of a supple- mental bill, and not of amendment, does not apply to a mere change of residence. Kerr v. Gillespie, 7 Beav. 269. By answering an amended bill a defendant does not preclude himself from the right of objecting at the hearing to matter originally introduced into the bill by amendment, where he takes the objection by his answer, and reserves to himself the same benefit of it as if he had pleaded it in bar. Milligan v. Mitchell, 1 My. & C. 433. (2) An order to amend as the plaintiffs may be advised does not authorize the striking out of the names of co-plaintiffs. Sloggett v. Collins, 13 Sim. 456. Chap. IV.] incidents to pleadings. 389 ticular circumstances (e). If any event happens [3261 which alters the interest of any party, or gives any J imlXevilon 11 new interest to any person not a party, the plaintiff may file a supplemental hill, or bill of revivor, as the occasion may require. And if the plaintiff thinks some discovery from the defendant, which he has not obtained, is necessary to support his case, he may file a supplemental bill to obtain that disco- very (f). He may also file a supplemental bill to put in issue any matter necessary to his case when he cannot obtain permission to alter his original bill by amendment (1) ; but he cannot upon such a sup- plemental bill examine witnesses to any matter in issue by the original bill (g). If upon hearing the cause the plaintiff appears entitled to relief, but the case made by the bill is in- sufficient to ground a complete decree, the court will sometimes give the plaintiff leave to file a supple- mental bill, to bring the necessary matter, in addition to the case made by the original bill, before the court (h). If the addition of parties only is wanted (/), £™ i 'n dment °" an order is usually made for the cause to stand over, with liberty to amend the bill by adding the proper parties (2) ; and in some cases, where a matter has not ( or MB covered by either plaintiff or defendant before a of that nature, to J A supply a defect. decree has been pronounced deciding on the rights of the parties, a supplemental or cross-bill has been permitted, to bring such matter before the court to answer the purposes of justice, instead of allowing an amendment of a bill or answer, where the nature [332] of the matter discovered would admit of its being so brought before the court ; and after a decree, upon a similar discovery, a bill of review, or a bill in nature of a bill or review, has been allowed for the same purpose, both those forms of proceeding being in their nature similar to amendments of bills or answers, calculated for the same purposes, and generally admitted under similar restrictions. It Refusal to permit O J new matter to be may however happen that by the mistake, or ne- put n 1S8ue ' gligence, or ignorance of parties, their rights may be so prejudiced by their pleadings that the court cannot permit important matter to be put in issue by any new proceeding without so much hazard of inconvenience, that it may be better that the indi- vidual should suffer an injury than that the ad- ministration of justice should be endangered by allowing such proceeding. (b) See above, pp. 07, 389, borough v. Giford, 2 P. Wms 390. 424; 1 Cox R. 159. See (c) See Countess of Gains- above, p. 390. NOTE ON PARTIES,* COMPRISING THE DECISIONS FROM THE BEGINNING OF THE YEAR 1826. The decisions on the subject of Parties which have been reported from the beginning of the year 1826 down to the end of the year 1846, (the period to which the present editor's labours are con- fined) are very numerous. He conceives that he shall most consult the convenience of the profession, by arranging them into classes and subdivisions under the following titlesf : — I. Of Parties generally. II. Or Parties out of the jurisdiction. III. Of misjoinder of Parties as Co-plaintiffs. IV. Of Parties to Suits of a public Nature. V. Of Parties to Suits for an account and to administration Suits. VI. Of Parties to Suits pertaining to the relation of as- signor AND ASSIGNEE. VII. Of Parties to Suits affecting Persons having a com- MUNITY OF INTEREST. VIII. Of Parties to copyright Suits. IX. Of Parties to Suits pertaining to the Relation of DEBTOR AND CREDITOR. X. Of Parties to Suits in respect of Actual or Construc- tive FRAUD. XI. Of Parties to Suits pertaining to the Relation of HUSBAND AND WIFE. XII. Of Parties to Suits for legacies. XIII. Of Parties to Suits pertaining to the Relation of MORTGAGOR AND MORTGAGEE. XIV. Of Parties to partnership Suits. XV. Of Parties to Suits by or against tenants in common of Real or Personal Estate. XVI. Of Parties to tithe Suits. XVII. Of Parties to Suits pertaining to the Relation of trustee and cestui que trust. XVIII. Of Parties to Suits between vendor and purchaser. * The text on Parties occurs supra, pp. 190 — 208, and 325 — 327. t The titles, after the first four, are arranged in the alphabetical order of the leading words therein. 398 NOTE ON PARTIES. [S. I. I. Parties, generally.* i. parties, gen- " A bill may be demurred to for want of parties, if any part v V * of the relief prayed is such that it cannot be granted in the absence of a person who is not made a party to the bill." Led- better v. Long, 4 My. & C. 286. General adminis- Where a suit is instituted to set aside a decree in a prior suit, trator, in a suit _ r * to set aside a de- a person who took a benefit under such prior suit is not surfi- cree in a prior t * suit. ciently represented by an administrator limited to the purposes of the subsequent suit. Davis v. Chanter, 14 Sim. 212. • Resi suit r b le fhe ee ' ^ res iduary legatee is a necessary party to a suit by the per- representative of sona l representative of the surviving executor of a testator, insti- one executor r ° against the re- tuted for the purpose of recovering; a part of the assets alleged to preventative of * x . another executor, have been possessed by the executor who died first. Adams v. Barry, 2 Coll. 285. Remainder men, A tenant for life cannot sustain a suit for a commission to as- in a suit to ascer- tain boundaries, certain boundaries, without making the remainder-men parties to the suit ; for in such case all who are interested in the property must be before the court. Ragley v. Best, 1 Russ. & My. 659. Executory devi- Where a suit is instituted for the sale of real property, in which sale. ' there is an estate in fee defeasible by an executory devise, the inheritance is not sufficiently represented by the person who has such defeasible estate, but the persons claiming under the execu- tory devise must also be parties. Goodess v. Williams, 2 Y. & C. Ch. C. 595. Person interested The court will not declare a power of appointment well in default of ap- / ■ rj pointment. executed in the absence of the party interested in default of appoint- ment. Grace v. Torrington, 1 Coll. Ch. C. 3. Tenant by the T/o a bill claiming an estate, an alleged tenant by the courtesy is a necessary party. Parker v. Carter, 4 Hare, 406. sheriff, in a suit Where the object of a bill is to restrain proceedings against the to restrain pro- . . . . . oo ceedings against sheriff, it is not improper to make him a party. Farquharson v. Pitcher, 2 Russ. 81. Person not a party If a person who is not a party to an action is made a party defence to which to a bill of discovery in aid of the defence to the action, he ma}' fs 6ied. ' ° Very demur, although the bill shows that he may have a benefit from the action. Irving v. Thompson, 9 Sim. 1 7 ; Kerr v. Rem, decided by the L. C. 10 Sim. 370. Tenant, in a suit Where a bill is filed by a landlord to restrain an ejectment, the to restrain an ejectment. * As to making a decree, saving the rights of absent parties, see the 49th order of August, 1841, and practice cases thereon stated in Miller's Orders, p. 159. S. I., II., III.] NOTE ON PARTIES. 399 tenant mnst he made a party, unless the landlord has been ad- *■ partus, a»- / • NERALLY, mitted to defend the action. Pool v. Marsh, 8 Sim. 528. v * ' If there are two plaintiffs in an action of ejectment, it is neces- Both the plaintiffs sary or proper that both of them be plaintiffs to a bill to prevent piaintiffT^n a bin the setting up of outstanding terms ; because, if one of them is setungup of*a made a defendant, the power of the court over the action is term ' thereby abridged. Baker v. Harwood, 7 Sim. 3/3. II. Parties out of the jurisdiction. It is not enough to state that persons, who in respect of in- ^ thITjuri's-^ terest are necessary parties, are out of the jurisdiction : the bill t diction. ^ must go on to pray process against them when they shall come General rule. within the jurisdiction. The reason for this is, that they may have an opportunity of appearing and of taking what course they may deem most for their advantage. Munoz v. De Tastet, 1 Beav. 109, note. Brooks v. Burt, 1 Beav. 106. Where a bill is filed for the general administration of a testator's Personal repre- sentative. estate, it is necessary to have a personal representative of the testator before the court ; that is, one who is not only made a party to the bill, but is also within the jurisdiction of the court ; and, therefore, where the executor is out of the jurisdiction, ad- ministration must be taken out for the purpose of the suit, although the person who so takes out administration is a mere nominee of the plaintiff. Loicry v. Fulton, 9 Sim. 104. Where a trust fund is to be administered under the direction Cestuu quetrust. of the court, the general rule requiring the cestuis que trust to be parties is applicable to foreign trustees and cestuis que trust residing out of the jurisdiction, unless a special case of difficulty or inconvenience in the application of the rule be shown. Wea- therby v. St. Giorgio, 2 Hare, 624. III. Misjoinder of Parties as Co-plaintiffs. If co-plaintiffs actually have or may have conflicting interests in. misjoinder 1 , of Parties as in regard to the object of the suit, or if any or either of them ^co-plaintiffs. have no interest in the subject-matter of the suit, there is a mis- joinder. But to be free from the objection of misjoinder, it is not necessary that co-plaintiffs should have an identity of interest. Thus, a churchwarden who has filed a bill to restrain a parson churchwardens from pulling down the church-yard wall, may, after his year of ^afnX pulling office has ceased, join as a co-plaintiff with one of his successors £°^' \^ church - in a supplemental bill for the purpose of stating facts which have 400 NOTE ON PARTIES. [S. III. 1 of PAET?Es D a E s R occurred since the filing of the original bill. Marriott v. Tarpley, Co-plaintiffs. n . o*-r> y r i 9 Sim. 2/9. consignees. ^nd w h e re the separate property of several consignees has become mixed and confounded together so as to be incapable of being distinguished, they thereby become tenants in common thereof, and, as such, may join in one bill for an account and equitable set-off against the owner of the ship in which such pro- perty was shipped, and for an injunction to restrain several actions brought by him against them for freight and average. Jones v. Moore, 4 Y. & C. Eq. Ex. 351. Executor of a de- And in a suit for an account of the assets of a deceased debtor, tative a co-defen- the executor of the person who was the original administrator de dant with the sole .. , , , ,• « ■• i , . % existing represen- bonis non and personal representative oi such debtor, is properly joined as a co-defendant with the person to whom, on the death of such original administrator, a fresh administration de bonis non was granted, and who thereby became the sole existing personal representative of such debtor. Holland \. Prior, 1 M. & K. 237, (decided by Lord Brougham, C, overruling the decision of the Vice-Chancellor.) Legatees co- Again a bill is not demurrable on the ground of the joinder of plaintiffs with & . , an executor. legatees as co-plaintiffs with an executor, in a suit for a debt due to the testator's estate. Rhodes v. Warburton, 6 Sim. 61/. Mortgagee a co- But if a mortgagee of the interest of a settlor under a settle- plaintiff with a . . . . 1,1 1 • i'/Y> 1 '11 •! settlor. ment joins with such settlor as a co-plaintm in a bill to set aside the settlement, the mortgagee can obtain no relief by a suit so constituted. Bill v. Cureton, 2 M. & K. 503. Occupiers co- And the respective occupiers of several houses cannot join in a junction bill to bill for an injunction to restrain a nuisance ; for that which is restrain a nuis- , . -, ., rr y ance. an answer to one may not be an answer to another. Hudson v. Maddison, 12 Sim. 41(5. Joinder of retired, Iii a bill against a former partner in respect of a private advan- ing partners, as " tage clandestinely obtained by him, a partner who retired before the transaction was discovered, and other persons who subse- quently became partners, and the continuing partner may be all joined as co-plain tiffs. Faucet v. Whitehouse, 1 Russ. & My. 132. shareholders. But where a bill is filed by some of the shareholders of a joint- stock company, on behalf of themselves and all the other share- holders, except the defendants, seeking, among other things, to be protected from a judgment against the company, certain other shareholders who had been released from proceedings under the judgment on payment of a call of a certain amount, are necessary S. III.] NOTE ON PARTIES. 401 parties to the suit : but they ought not be co-plaintiffs ; and, in. misjoinder inasmuch as such persons, if not named as defendants, must be c °-«.aintipf8. regarded as plaintiffs under the general description of other share- holders, the bill is demurrable on the ground of misjoinder, if it does not name them as defendants. Lund v. Blanshard, 4 Hare, 9. But see Apperley v. Page, infra, p. 415. And if a personal representative of a trustee by whose neglect Personal repre- an opportunity of committing a breach of trust had been afforded, trus^e'er^urTa is joined as a co-plaintiff with parties seeking relief in respect of rS" "rwpfct such breach of trust, and it may be necessary to resort to the trust! >reach ° f trustee's assets for the purpose of making good the loss, the bill will be dismissed, because the interests of the co-plaintiffs might ultimately become conflicting. Jacob v. Lucas, 1 Beav. 436. Where a bill is filed by a lessee of tithes, and by the vicar for vicar a co-piain- the recovery of tithes, if the lease of the tithes was by parol, the of tuhes. a ' essee vicar is properly joined as a co-plaintiff with the lessee of the tithes ; but if the lease was by deed, there is a misjoinder. Foot v. Bessant, 3 Y. & C. Eq. Ex. 320. A bill brought for an account and for an injunction to restrain Joinder in a bin proceedings at law, cannot be demurred to on the ground that ceVdTngs'aUan", the plaintiffs in equity are not all defendants at law, where the eauU Plai h t ^ f '" plaintiff in equity who is not a defendant at law has an equal , a defendant at interest with those who are defendants at law. Darthez v. Lee, 2 Y. & C. Eq. Ex. 12. The joinder of a person as a co-plaintiff who is not entitled to Joinder of a per- any relief, though he is interested in the subject-matter of the wght to'rdie" suit, is a ground for dismissing the bill with costs against all the plaintiffs, even though the objection be only taken by answer, and not by demurrer or plea. So that where a fund is lost in consequence of the tenant for life insisting on a trustee placing it in the hands of another person, and the tenant for life, who, of course, is entitled to no relief, joins with the persons interested in remainder, in a bill against the trustee, to make him liable for the loss, the bill will be dismissed, even though the objection be not taken except by the answer. Goodyear v, Robinson, 4 Law J. (N. S.) 174, M.R. For other cases connected with the question of misjoinder, see supra, note (1), p. 27, and note (1), p. 30, and note (1), p. 1/7, and note (1), p. 272. See also Mocatta v. Ingilby and Taylor v. Salmon, infra, p. 414. D D 402 NOTE ON PARTIES. [S. IV. IV. Parties to Suits of a pub- lic NATURE- V , 1 Attorney-general and secretary at war made parties to a bill ot disco- very. Attorney-general, in a suit as to money settled to superstitious uses. Attorney-general, in a suit by an in- corporated chari- table institution. Attorney-general in a suit to re- strain a general nuisance. Attorney general in a suit to abate a local nuisance. Lessor and as- signees of a per- son injured by a nuisance. IV. Parties to Suits of a public nature.* The attorney-general may be made a defendant to a bill of dis- covery relating to matters not within his private or official know- ledge or cognisance, and other public officers (the secretary at war, for instance,) may be made defendants to a bill in their public character. Deare v. Attorney-General, 1 Y. & C. Eq. Ex. 197. Where a suit is instituted respecting money given for super- stitious uses, and it is doubtful whether it will be for the queen, under her sign manual, to direct the application of the money to other charities not superstitious, or whether the money will revert to the settlor by virtue of a condition invested in the deed for that purpose, the attorney-general is a necessary party. Be Themines v. De Bonneval, 7 Law J. (O. S.) 35. The attorney-general is a necessary party to a bill filed by an incorporated charitable institution, for a legacy, where it is to remain invested in stock, and the dividends are to be applied for purposes not corresponding with the trusts upon which the general funds of the institution are invested. Corporation of the Sons of Clergy v. Mose, 9 Sim. 610. "Where a specific injury is done by a nuisance to individuals resident or having property in the locality of the nuisance, any of them may file a bill for relief, without making the attorney- general a party, although such nuisance is a nuisance to the public generally, as well as to those individuals. Spencer v. London and Birmingham Railway Company, 8 Sim. 192, 7 Law J. (N. S.) 281. See also Semplex. Birmingham Railway Com- pany, 9 Sim. 212. And where an individual sustains special damage from a nuisance (as where the goods in his shop are injured by the smoke of a steam engine), he may file a bill to restrain it, without making the attorney-general a party ; although, in the bill he alleges that the nuisance is a nuisance to the neigh- bourhood, and sets forth a letter written by his solicitor to the defendants on behalf of several persons in the neighbourhood. Sampson v. Smith, 8 Sim. 272. And to a bill by a lessee to re- strain a nuisance, the lessor is not a necessary party. Nor are the assignees of the plaintiff, where he is an uncertificated bank- rupt ; for an uncertificated bankrupt has a right against all the world, except his assignees. Semple v. London and Birmingham Railway Company, 9 Sim. 212. * See Section VII., on " Parties to Suits affecting persons having a com- munity of interest." S. IV., V.] NOTE ON PARTIES. 403 A foreign government is a necessary party to a suit instituted iv. paeties to 1 n St' ITS OF A PUB- by alleged agents thereof, for the possession of property belong- "cnatdke. ing thereto, against other persons who were the agents thereof, Foreign govern- but whose agency is alleged to have been determined. Schneider "new age^t'" v. Lizardi, 15 Law J. (N. S.) 435, M. R. %££ a forraer To an information against churchwardens to establish a charity, Vestryclerk.inan the vestry clerk may be made a defendant, when he refuses to establish a" l ° allow the relator to examine the vestry book. Attorney -general charitv - v. The Churchwardens of St. Margaret's, Westminster, 1 Law J . (N. S.) 127, V. C. V. Parties to Suits for an Account, and to Administration Suits.* 1 . Assignee. See Legatees. v _ Paeties to 2. Heir.— The 31st order of August, 1841, declares, "That in account* 'and to suits to execute the trusts of a will, it shall not be necessary to make suits! the heir at law a party ; but the plaintiff shall be at liberty to make the heir at law a party where he desires to have the will es- tablished against him." (See Marriott v. Marriott, 15 Law J. 422, V. C. B.) 3. Legatees and their assignees and personal Representatives. _ .. — Where one of several residuary devisees and legatees files a bill tees - for the administration of the estate, the other residuary legatees may be served with a copy of the bill under the 23rd order, where they and the plaintiff have a common interest, and they have no other interest. Davis v. Davis, 4 Hare, 388. But " a person to whom a legacy or an annuity is given, to be Legatee or an- paid out of the residue, after the death of the legatee for life of SeS Sf a° such residue, is not a necessary party to a suit for an administra- residue - tion of the estate brought by legatees of aliquot shares of the ultimate residue." Fisk v. Norton, 1 Hare, 381. If in an administration suit, instituted by the next of kin of a ,. ^ Next of kin named testator at his death, the question is, whether the testator by the as legatees. words "my next of kin," meant his next of kin at his death, or at a future period, the person or persons who may by possibility be the next of kin at that future period, ought to be made a defend- ant or defendants, as well as the executor. Urquhart v. Urquhart, 13 Sim. 613. So where a limitation is for the next of kin or personal represen- r ' Claimants under tatives of a settlor, in a due course of administration, according a will > distritm- ° teas under a for- mer suit. * See Sections IX., XII., XIII. and XIV. D D2 404 NOTE ON PARTIES. [S. V. sui P ts R for S an to tne statute of distributions, and such settlor leaves a wife sur- adm°nis T tration viving, and a sole next of kin, and the next of kin files a bill for * * the property ; the wife of the settlor or her next of kin are neces- sary parties or a necessary party ; and so also are persons to whom the property has been paid over in a former suit. Kilner v. Leach, 7 Beav. 202. Assignee of a The assignee of a legatee is a necessary party to a suit by such legatee for the administration of the testator's estate, where the assignment took place before the institution of the suit. Camp- bell v. Dickens, 4 Y. & C. Eq. Ex. 17. And where a residuary legatee assigns his share after the in- stitution of a suit for administering the testator's estate, but before such legatee is served with a subpoena, the assignee is a necessary party. Humble v. Shore, 3 Hare, 119. sentBtiveofjf' Where a bill is filed for the purpose of having the residue of a testator's estate ascertained, and for the distribution of it among the parties entitled, the suit will be defective for want of parties, if there is no personal representative of one of them constituted by the proper ecclesiastical court in England, although the bill states that a person has proved the will of such person in a diocesan court not in England. Lowry v. Fulton, 9 Sim. 104. taitator.'h^asuit "^ Partners. — A surviving partner of a testator may be ngafnVhis ex- j ome d as a co-defendant with an executor to a bill filed for an ecutor. account by the residuary legatees, and may be thereby required to account to them in respect of the assets in his hands as a partner. Browsher v. Wathins, 1 Russ. & M. 277 ; Davies v. Davies, 1 Keen, 534. a general admi- 5 Personal representatives of the person whose assets are nistrator, ana not -» •/ sr an administrator the subject matter of the suit. — In a suit for a general account ad litem. . and administration, the estate must be represented by a general administrator, and not by a mere administrator ad litem. Croft v. Waterton, 13 Sim. G53. An executor who has not proved or acted is not a necessary party, even though he has not renounced. And it is not necessary to allege that one of two or more executors has not proved, in order to exempt the plaintiff from making him a party. It is sufficient if the bill alleges that those who are made parties have proved, and are the personal representatives of the testator. For the fact of the other person not having proved may be easily esta- blished by the production of the probate. Dyson v. Morris, 1 Hare, 413 ; Davies v. Williams, 1 Sim. 5. Personal repre- Where a suit is instituted for the purpose of securing a residue sentative consti- L l ° Executor who has not proved. S. V.] NOTE ON PARTIES. 405 remitted by an executor constituted in India, to an agent in this v. parties to country for distribution amongst the parties entitled, it is neces- account and to . . r Administration sary that an administrator should be constituted in England, and v suits. made a party to the suit. Logan v. Fairlie, 2 Sim.& Stu. 292. tuted in England, And even where a suit is instituted respecting an unadministered assets originally part of a testator's estate, which has been remitted from India, the jurisdiction. and is in the hands of an executor residing here, but constituted in India, a personal representative constituted in England is a necessary party. Bond v. Graham, 1 Hare, 482. And a bill seeking an account of the assets of an intestate who died in India, which have been possessed by a personal representative consti- tuted by the proper court there, cannot be sustained in the absence of a personal representative of the intestate constituted in England, although it does not appear that the intestate had any assets in England, and consequently no letters of administra- tion have been taken out in this country, Tyler v. Bell, 2 My. & C. 89. And in like manner to a suit instituted for an account of assets of a testator possessed by an executor in Honduras, an executor constituted in this country is a necessary party. Lewis v. Gentle, 7 Law J. (O. S.) 43, Ch. R. Where, however, a clear ascertained fund is remitted from abroad by an executor to a person in England, to apply it for the benefit of the legatees thereof, the court will determine the respective rights of the several legatees, without having a legal personal representative of the testator before the court, if the consignee is a party to the suit ; at least if no objection be made by the defendants on the ground of the personal representative not being made a party. Arthur v. Hughes, 4 Beav. 500. 6. Personal representatives and assignees of a personal repre- Personal repre- sentative of the individual whose assets are the subject matter of \a"a of aiUndian the suit. — Where a bill is filed against executors who proved their executor - testator's will and possessed his assets in India, and the bill seeks to charge them with a loss, and one of them dies in India, and his executor, who proved his will and possessed his assets there and afterwards came to England, is made a party to the suit, it is not necessary that a personal representative in England of the deceased executor should also be before the court. Anderson v. Counter, 2 M. & K. 763. In an administration suit against a surviving executor, it is not Assignees and necessary to bring before the court the assignees or personal P ei "s°" al r ep/e- J ° or sentatives of a representatives of a deceased bankrupt executor, all of whose deceased bank - ' l rupt executor. estate has been administered under the commission. Masters v. Barnes, 2 Y. & C. Ch. C. 616. 406 NOTE ON PARTIES. [S. V. v. parties to Where an agent is employed by two executors, the survivor of Suits fob an a~ r J J > adm^ni^trat'ion' tnem ma y *^ e a kill against such agent for an account, without v SuiTS - making the personal representatives of the deceased executor Personal repre- parties to the suit. Slater v. Wheler, 9 Sim. 156. sentatives of a deceased ex- /. Purchasers. — Where a bill is filed by the next of kin of an ecutor, in a suit . .... by a surviving intestate against his administrator and others, praying that an executor against -, an agent. account may be taken of the rents and profits received by the fuit C by next of * administrator of estates contracted by the intestate to be sold tiue who n had e con- to diff erent purchasers, and agreed by the heir-at-law to be given tracted to sen. U p ^ Q ^g nex £ f ^ [ n ' m case the purchase contracts should be set aside, and also praying that the balance after deducting the ad- ministrator's disbursements may be invested and secured for the plaintiffs and the other persons entitled thereto, and that a receiver may be appointed ; in such case the purchasers are necessary parties. First, because otherwise the administrator would be obliged to render the same account twice — once to the next of kin (admitting them to be entitled to what they seek,) on the ground that the plaintiffs may not be able to recover the pur- chase monies, unless the rents are properly accounted for and applied — and once to the purchasers, to whom, if the contracts are valid, the rents and profits belong. Secondly, because the purchasers would not be bound by the acts of the receiver without being parties to the cause. And thirdly, because the court does not take possession of a fund, without having the owners of it parties to the suit. Lumsden v. Fraser, 1 My. & C. 589. ^account™' f0r 8 - Other parties.— Although, upon a bill for a general account between two persons, a question arises whether certain items ought to be charged against one of them or against a third per- son with whom they had mutual dealings, it does not follow that such third person is a necessary party. Darthez v. Cle- ments, 6 Beav. 165. Co-plaintiff hav- In a suit for an account, a person may be made a co-plaintiff, !nferest ery ' ' e if he has an interest in the taking the account, however minute such interest may be. Smith v. Farr, 8 Law J. (N. S.) Ex. Rep. 46. fo^ad'ministeruig The administrator ought not to be sole plaintiff in a bill for administering an intestate's real assets, under the statute 3 & 4 W. IV. c. 104. Tubby v. Tubby, 2 Coll. Ch. C. 136. a person who has a person who has improperly obtained a part of the assets from possession of part r r i j r of another's executors, by setting up a deed of assignment of the property to himself, may be made a party to a bill against the executors for the administration of the estate, even without any charge of col- lusion or insolvency. Consett v. Bell, 1 Y. & C. Ch. C. 569. S. VI.] NOTE ON PARTIES. 407 If two individuals arc entitled to rents, the one up to a certain J- parties to 1 Suits for an time, and the other afterwards, the latter alone cannot file a bill I^unistbatioS for an account of the rents accrued during the whole period, with- ,, St - 1T!j - out making the former a party, although he may allege that he Arties in a suit . _ , , , r * ° JO f or an account of has satisfied the demands of the former. Att. Gen. v. Pearson, r <;nts. 7 Sim. 290. VI. Parties to Suits pertaining to the relation of Assignor and Assignee. The assignor of a judgment, as having the legal estate, is a vi. parties to . Suits pertain- necessary partv to a suit by the assignee respecting it, although «so to the • «• * •> , . relation of As- a power of attorney to sue is contained in the assignment. Par- ^s, ^^" tington v. Bailey, 6 Law J. (N. S.) 1/9 ; M. R. v '-* Tr , -lii • Assignor of a It a person entitled to purchase money or compensation money judgment.inaault to be ascertained by the award of a commissioner under an inclo- Assignor of corn- sure act, assigns away his interest before the award, he is not a P ensati011 or P ur - ' O J ' chase money. necessary party to a suit by the assignee for the recovery of the money ; because before the award, he had only an equitable right to it, and after the assignment of that, no interest remained to him. Cator v. The Croydon Canal Company, 4 Y. & C. Eq. Ex. 405. To a suit instituted to compel the raising of portions, for which A3 s'gneeofaterm, r o i and termor, a term had been created under a settlement, the person to whom to a suit to raise 1 portions. such term has been assigned in trust for a mortgagee with notice of the trusts of the settlement, is a proper party, but the original termor is not a necessary party. Young v. Lord Waterparh, 8 Law J. (N. S.) 214, V. C. Where a defendant assigns the subject-matter of a suit after Assignee of a de- the bill is filed, but before the subpoena is served, the assignee service of sub- is a necessary party. Powell v. Wright, 7 Beav. 444. Where a partner in two distinct firms assigns his share to a Partner and ° devisees of real co-partner in those firms, who undertakes to indemnify the estate. assignor against the liabilities of those firms, a suit may be in- stituted by the assignor against the executors of the assignee for a specific performance of the agreement, and for an account and payment of what is due to the assignor in respect of the unpaid consideration, and of a sum to which one of the firms was in- debted to the assignor, and of the debts paid by him against which he was to be indemnified by the assignee : and in such case a partner in the firm who was so indebted to the assignor is not a necessary party ; nor are the devisees of the real estate of the assignee, where the bill charges that his personal assets are suffi- cient for payment of his debts, although he charges his real 408 NOTE ON PARTIES. [S. VII. estate with payment of his debts ; for his personal estate is pri- marily liable. Morrall v. Pritchard, 6 Jur. 966, V. C. W. VII. Parties to Suits affecting Persons having a Community of Interest.* suixsTAFJECTiNG 1 • Statutory mode of suing. — Some of the shareholders of a a Community of joint-stock company may sue on behalf of themselves and the v___ Jl — —j other shareholders, for the purpose of compelling the chairman the shareholders an( l directors of the company to refund monies improperly beha C if I of a th 5 em- n drawn by them from the company and applied to their own others against the use > notwithstanding an act of parliament passed for the re- rHr ail tor" a " d gulation of the company provides that all proceedings by or on behalf of the company, against any person or persons, whether a member or members of the company or not, shall be carried on in the name of the chairman or of one of the directors : for such an enactment does not apply to such a case as that above mentioned, where the chairman and directors are themselves the parties amenable to the proceeding. Hichens v. Cong re ve, 4 Russ. 562. Bin by a chair- And where an act of parliament for forming a ioint-stock corn- man 01 a company *«*»» r o J against a member. p an y authorizes all suits on behalf of the company against any person to be prosecuted in the name of the chairman ; and in all proceedings in which it would have been necessary to state the names of the shareholders, it is made sufficient to state the name of the chairman only ; the act does not authorize suits by the chairman against a member of the company, but only against a stranger, without making the other members parties. Macmahon v. Upton, 2 Sim. 473. beisof an°inco™" Where the majority of the proprietors of a company incorpo- on r behaif of them' ratec * D y act °^ P arnament > at a special general meeting assembled, selves and others. are empowered by the act to institute proceedings, two of them cannot file a bill on behalf of themselves and others against the directors, impeaching transactions which may possibly be regarded by the other proprietors as beneficial to the company. Foss v. Harhottle, 2 Hare, 461. Puty of meeting 2. Persons suing and being sued on behalf of themselves and the exigencies of & " " * the altered state fhers, where there is no statutory mode of siting or defending. — of society. ' . -, D ' c It is the duty of the court to adapt its practice and course of proceeding, as far as possible, to the existing state of society, and to apply its jurisdiction to all those new cases, which, from the progress daily making in the affairs of men, must continually arise ; and not, from too strict an adherence to forms and rules * See Sect. XIV., XV. S. VII.] NOTE ON PARTIES. 409 Persons having UNITY OF Interest. established under very different circumstances, decline to admi- s" T f affecting nister justice, and to enforce rights for which there is no other £ 1*omm remedy." Lord Cottenham, C. in Taylor v. Salmon, 4 My. & C. 142. "The court in conformity with the principles of equity has Doctrine of re- * l-i presentation. adopted a general rule, not to dispose of any matter, not to bind any man's interest, or make any declaration of any man's right in his absence. The complication of human affairs has, however, become such, that it is impossible always to act strictly on this general rule. Cases arise in which if you hold it necessary to bring before the court every person having an interest in the question, the suit could never be brought to a conclusion. The consequence would be that if the court adhered to the strict rule there would in many cases be a denial of justice. This has induced the courts to sanction a relaxation of the rule. And accordingly they have said, if we can be satisfied that we have before the court persons whose interests are the same as the interests of those who are absent, we will be content to hear the cause upon the argument of such persons. And if we are then satisfied that the case has been fairly and honestly presented, we will order the distribution of the fund on the representation of the persons present," but without binding the absent parties, so far as to cut them off from all chance of correcting any error which in consequence of their absence may have been made to their prejudice. Lord Langdale, M. It. in Powell v. Wright, 7 Beav. 449, 450. See also his Lordship's remarks in Richard- son v. Hastings, 7 Beav. 323. The adjudication in the absence of some of the persons in these instances does not depend upon the fact of there being any actual representation of the absent persons. For they may be perfectly ignorant of the proceedings : and in case those who are brought before the court are defendants, they are selected by the plaintiff, and not by the absent persons. "It is a rule of necessity or convenience ; and nothing is more vague : for the court is under the necessity of considering the circumstances of each case and the degree of difficulty in the proceeding." — The fact would seem to be, that there is no actual representative existing as a ground for the adjudication in the absence of persons interested ; but that there is a virtual and constructive representation for the purpose of the adjudication, as the result of considerations of necessity or convenience and community of interest. Necessity or conve- nience, combined with community of interest, and not represeuta- 410 NOTE ON PARTIES. [S. VII. Mode of treating of this subject. Appointees re- presented. Creditors repre- sented. yii. parties to tion, is the criterion for deciding whether such adjudication shall Suits affecting ° J Tc^mmdnitVof take P lace - See Powe H v - Wright, 7 Beav. 446, 447, 450, and ^interest. g mur f v Bradstock, 7 Beav. 501. Since the rule as to dispensing with the presence of persons as actual parties on the record is so " vague," and " the court is under the necessity of considering the circumstances of each case," it will obviously be highly desirable for the safe guidance and the convenience of the practitioner, to incorporate the mate- rial circumstances of each case into specific placita, rather than to state propositions couched in more general terms. This remark, indeed, applies with more or less force to the whole subject of equity pleadings ; but it is peculiarly applicable to the subject of parties, and perhaps most especially to that part which is comprised in the present section. Where there are numerous appointees (thirty-seven for instance) they may be represented as defendants to a suit by some on be- half of all. Milbank v. Collier, 1 Coll. 237. A bill may be maintained by a mortgagee on behalf of himself and all other creditors of a deceased mortgagor. Skey v. Bennett, 2 Y. & C. Ch. C. 405. In like manner the assignee of a specialty creditor may file a bill on behalf of himself and all other creditors for the execution of the trusts of an act of parliament providing for the payment of debts out of real estates. Batten v. Parfitt, 2 Y. & C. Ch. C. 343. And a bill to carry into execution the trusts of a deed of trust for the payment of joint and separate debts, may be filed by a separate creditor of one debtor, on behalf of himself and all other the joint and separate creditors, where it appears from the deed that they are very numerous, without making them personally parties, although they have all executed the deed. Weld v. Bonham, 2 S. & S. 91. Where trustees of an estate for the improvement of a town are empowered by act of parliament to levy a rate in case the rents of such estate prove deficient for that purpose, an information and bill may be filed by some of the inhabitants on behalf of them- selves and the others, against the trustees, for an account and for an injunction against the rate. Att. Gen. v. Heelis, 2 S. & S. 67. Again, where two members of a club have possessed them- selves of property belonging to the club, and it is for the com- mon interest of the club that this property should be brought within the control of the governing body ; a bill may be filed bv one member on behalf of himself and all others, except the defendants, for that purpose alone, without determining any- Inhabitants of a town represented. Members of a club represented. S. VII.] NOTE ON PARTIES. 411 thing respecting the distribution thereof when brought within ^Ji/*™",™ the control of the governing body ; but leaving it open to future A communitVof litigation in that respect ; and this will be the case, even where v — *™** a f- ; the club has been dissolved, but its affairs have not been wound up. Richardson v. Hastings, 7 Beav. 323. And where furniture belonging to a club is vested in a trustee, upon trust to sell, and to repay the amount subscribed by certain members, parties to the deed, and borrowed of other persons, also parties to the deed, for the purchase of the furniture, and to pay the surplus to the committee for the benefit of the club, a bill may be filed against certain members of the committee who have improperly sold the furniture and retained the proceeds, by one of the subscribing members on behalf of himself and all the other members of the club, other than the defendants, instead of making the parties to the deed or the other members of the club actual parties to the suit. Richardson v. Hastings, 7 Beav. 301. But where twelve out of thirty-eight proprietors of a newspaper Newspaper pro- file a bill on behalf of themselves and all other proprietors, except sented? re the defendant, and it is not perfectly clear that the suit is for the benefit of all the proprietors, and the defendant insists, in his answer, that the other proprietors should be made parties, and alleges that the suit had been commenced without their sanction, and contrary to the wishes of several of them, the court will order the cause to stand over, with liberty to amend by adding parties. Bainbridgev. Burton, 2 Beav. 539. When the object of a suit is to determine the question of the Next of kin re- . presented. right to a residue as between the next of km as a class and a person claiming under a will, and not to distribute a residue, it is sufficient if some only of the next of kin are parties. Calde- cott v. Caldecott, Cr. & P. 183. And in cases where next of kin are very numerous, and the property is small, and the ques- tions are such that no reasonable doubt can be entertained re- specting them, the court will make a decree adversely to them, though but one of them, having the same interest as the rest, is a party to the suit. Bimnet v. Foster, 7 Beav. 540. And so where the next of kin and their representatives are numerous, and there are no representatives of some of them who have died, and the greater portion (five ninths, for instance) of the interest of the next of kin is represented in the suit, the presence of the others will be dispensed with. Harvey v. Harvey, 4 Beav. 215. Again, a bill may be filed by two persons on behalf of themselves ,, ew holderg re _ and all other persons (except the defendants) who at the time ot presented. 412 NOTE ON PARTIES. [S. VII. Residuary lega- tees represented, Shareholders re- presented. yn. parties to an alleged breach of the trust upon which a church is held, Suits affecting or » Icoxhvmttov were > or at the time of the filing of the bill are, or are entitled to v. lNTEREVT - , be, holders of seats or pews in a church, or voters at the election of a minister, where the object of such bill is to obtain relief in respect of such breach of trust. Milligan v. Mitchell, 3 My. & C. 72. One of a numerous class of residuary legatees (twenty-six for instance) will be also permitted to sue on behalf of himself and all others entitled as residuary legatees. Harvey v. Harvey, 4 Beav. 215. So a bill may be filed, even during the existence of the partner- ship, by some of the shareholders of a numerous company, on behalf of themselves and the others, except the defendant, for the realization of their common assets, and for the application thereof to their legitimate purpose. Walworth v. Hott, 4 M. &C. 619. Indeed, a bill may be filed by an individual shareholder in a numerous company, on behalf of himself and the majority of the shareholders, against the company and a certain number of the shareholders and directors thereof. Preston v. Guy on, 5 Jur. 146, V. C. E. And one of the shareholders of a canal is entitled to file a bill, on behalf of himself and the other shareholders, against the com- missioners appointed for putting into execution the Act under which the canal was made, to set aside an agreement entered into by them contrary to the provisions of the Act : for a bill to enforce the due exercise of the powers vested in the commis- sioners by the Act, and to avoid a breach of trust, must be intended to be in its nature beneficial to every shareholder. Gray v. Chaplin, 2 S. & S. 267. So where a few of the partners in a numerous dissolved com- pany have been appointed trustees to wind up its affairs, they may sue on behalf of the company to recover a debt. Gordon v. Pym, 3 Hare, 223. And a bill to set aside a policy may be filed by the directors of an insurance company who signed the policy, on behalf of themselves and all other shareholders, without making the other members of the board of directors, by whom the affairs of the company are managed, parties to the bill. Barkery. Walters, 8 Beav. 92. And a bill may also be filed by the trustees who are also some of the directors of an insurance company, against the other directors, who are also shareholders of the company, and against the trustees of another company, to set aside a policy effected by the S. VII.] NOTE ON PARTIES. 413 latter with the first-mentioned company : and it is not necessary sJIts'apfecting to make the other members of the respective companies parties, I c^mmunityof where they are very numerous, and where the bill states that their i NTEBES • , names and places of abode are unknown to the plaintiffs. Fenn v. Craig, 3 Y. & C. 216. If a person files a bill against a railway company, it is suffi- cient to make the provisional committee and directors parties to the suit, if they all oppose the claim of the plaintiff in toto, and the plaintiff alleges that the number of the shareholders is so great, and the shares so fluctuating, that he cannot make them parties to the suit. Parsons v. Sjjooner, 15 Law J. 155, V. c. w. And if the managing committee of a railway company, having monies in their hands applicable to the discharge of liabilities of the company, pay off the whole or a part of a debt due from the company, and then the person to whom such debt is due brings an action, as a trustee for the company, against a shareholder for the amount of such debt, the court of chancery will restrain the creditor and the committee from prosecuting such action or any other action against such shareholder, and from disposing of the assets except in payment of the liabilities of the company ; and the rest of the shareholders need not be parties, where the bill alleges that they are very numerous, and that their interests are identical with those of the committee. Lewis v. Billing, 10 Jur. 851, Y. C. E. Where a bill is filed by a few shareholders of a very numerous unincorporated company, on behalf of themselves and all other shareholders, except the defendants, seeking to be relieved from the payment of certain calls which are alleged to have been fraudu- lently made, but have been paid up by the other shareholders, and for an account and dissolution of the company, it is not sufficient to make the directors, trustees, and secretary, defend- ants : for they are bound to have an equal mind towards the plaintiffs as well as the other shareholders, and cannot properly be considered as representing an opposition. It is necessary that a sufficient number of the other shareholders should be made defendants, in order to discuss the questions freely and unres- trainedly. Richa?'dson v. Larpent, 2 Y. & C. 507. And a suit cannot be instituted against the committee by three of the partners in a numerous trading company alone, and not on behalf of themselves and the other partners, upon a point in which all the partners are materially interested ; as, for example, 414 NOTE ON PARTIES. [S. VII. vii. parties to for the liberty of inspecting the documents of the company, Suits affecting j ... . . aCommunity'of wn i c h might be prejudicial to the company, by disclosing its interest. ^ affairs to partners connected with a rival company. Baldwin v. Lawrence, 2 Sim. & Stu. 18. Where a suit is instituted for the payment of a sum of money, in the nature of a debt, due to the whole body of the shareholders of a company, the suit may be instituted by one of the share- holders on behalf of himself and all the other shareholders. And in such case, although the payment be claimed from the directors, who are made defendants for that purpose, it is correct not to except them out of the number of the shareholders on whose behalf the bill is expressed to be filed ; because they are not sued as shareholders, but as directors ; and, in their character of shareholders, they would be entitled to participate in the fruits of the suit. Mocatta v. Ingilby, 5 Law J. (N. S.) 145, M. R. And in like manner where two or more shareholders in a numerous joint-stock company sue on behalf of themselves and all other shareholders, and one of the shareholders has acted as agent of the company, the plaintiffs may sue on his behalf in his character as shareholder, although they also make him a defendant in his character of agent. Taylor v. Salmon, 4 My. & C. 134. The court will not restrain the registration of a deed of assignment of shares in a railway company, on a bill filed by a shareholder on behalf of himself and the other shareholders, without the shareholders whose shares are assigned being made parties to the suit ; for as the suit tends to prolong their liabili- ties, they ought to be parties. Great head v. The London and South-Western Railway Company, 10 Jur. 343. It will have appeared from the preceding cases, that " in order presentation. to en title a plaintiff to sue on behalf of himself and all others who stand in the same relation with him to the subject of the suit, it must appear that the relief sought by him is in its nature beneficial to all those whom he undertakes to represent." (Sir John Leach, in Gray v. Chaplin, 2 S-. & S. 272.) But so long as the relief must be beneficial to all, it is not necessary that all should approve of the suit ; on the contrary, in that case it would seem that in general it will not be a valid objection to a suit so constituted, even if the majority disapprove of the suit ; for if all could not be personally made parties on account of their number, it would amount to a denial of justice to those who were desirous of suing, if the disapprobation of the others were an effectual obstacle to a suit on their behalf. And indeed it might open a Concurrence not necessary to re S. VII.] NOTE ON PARTIES. 415 door to a fraudulent connivance on the part of some parties inter- suJt/appe^timg ested in transactions which are injurious to the rest. a community op ..... ., Interest. Hence, where acts are necessarily injurious to the common > y * interest of a large number of persons, a few of them may institute a suit for relief on behalf of themselves and the rest, although the majority approve of those acts, and disapprove of the institu- tion of the suit. And in this case, as distinguished from the case of the whole body concurring in an abuse, the attorney-general need not be a party to the suit. Bromley v. Smith, 1 Sim. 8. Indeed a bill may be filed by a member of a numerous incor- porated company, on behalf of himself and all other members of the company, except the defendants, to impeach a transaction, although it was the act of a unanimous meeting of the company, some of whom are not defendants, and are consequently included in the number of those on whose behalf the bill is filed. For the expression of suing on behalf of all the other members is merely a mode of expressing that the plaintiff sues in a general right. Preston v. The Grand Collier Dock Company, 11 Sim. 32". And where a bill is filed by some of the shareholders in a rejected and abandoned railway scheme, on behalf of themselves and all other shareholders, except the defendants, who were the provisional committee, and it alleges that the interests of the shareholders, except the defendants, were identical with those of the plaintiffs, and that none of them, except the defendants, had interests ad- verse to or differing from those of the plaintiffs, it is not demur- rable for want of parties or for misjoinder, although it prays for an account, and that certain expenses improperly incurred may be paid by the defendants, and not out of the deposits, and that the surplus of the deposits, after payment of expenses properly incurred, may be rateably distributed among the subscribers ; and although it states that the majority of the shareholders sanc- tioned the improper expenditure ; and that some of the share- holders, whose names were unknown to the plaintiffs, had not paid any deposits. Apperley v. Page, 10 Jur. 998, V. C. B. But see Lund v. Blanshard, supra, pp. 400, 401. 3. Suits in which there is no statutory mode of suing or defend- shareholders dis- ing, but all jjersons having a community of interest need not be pe made parties, either personally or by representation. — Some of the shareholders in a joint-stock company may file a bill for the re- payment of the deposits on their shares, on the ground of fraud, without making the other shareholders parties, if they allege that they are ignorant of the names of such other shareholders. Blain v. Agar, 2 Sim. 289. 416 NOTE ON PARTIES. [S. VII. su!ts P aff T ecting And to a bill filed against a director of a banking company aCo'mmunittof by a purchaser of shares allotted to that director, praying that v ' the sale may be set aside on the ground of fraudulent repre- sentations made by the directors and their agents, the other partners were not necessary parties. Stainbank v. Fernley, 9 Sim. 556. And to a bill for the recovery of shares in a company, the owners of the other shares, if not interested in the shares sought to be recovered, are not proper parties. Turner v. Hill, Turner v. Tyacke, and Turner v. Borlase, 11 Sim. 1, 16, 17. Where a lessee of a mine, after selling shares therein to several persons as a mining company, subsecmently sells the en- tire interest therein to certain persons as trustees for a new mining company to be formed, he receiving part of the consideration in shares in such new company, and the sale is made by him without the knowledge of a person who is one of the shareholders in the original mining company, but after accounting to all the others ; that person may file a bill against him, without making the trustees, or the other shareholders in the original company, or the shareholders in the new company, parties to the suit, if the contest does not affect those individuals or the corpus of the pro- perty, but only the lessee and his particular interest ; the shares being transferable by a delivery of the certificates, and the bill seeking a share of the profits and purchase money received by the defendant from the new company, or a transfer of a number of the shares therein belonging to the defendant equivalent to the amount of the plaintiff's interest in the original company. Mare v. Malachy, 1 My. & C. 559. Person interested Where under an agreement a person is entitled to a share of the in profits dis- , , ,. , . pensed with. clear profits of a company, but the directors ot the company are to have the exclusive management of its affairs, he is not a neces- sary party to a suit respecting dealings between the directors and a third party. For although he has an interest in the ultimate profits of the concern, he has no interest in any particular trans- actions, otherwise than as they affect the general account on which the ultimate profits are shown. Benson v. Iladjield, 5 Beav. 546. alone y trustees A suit cannot be instituted by trustees of a company alone, and not on behalf of themselves and the other members for a specific performance of an agreement for a lease to them, although the agreement did not state that they were members of the com- pany. Douglas v. HorsfaU, 2 S. & S. 184. co e mmunity V of g a 4. Suits in which allwho belong to a company or class must be S. VII.] NOTE ON PARTIES. 417 personally made parties. — Some members of a numerous company gwiTB^Awwiiro or class may, as we have seen, institute a suit, on behalf of them- a community ok selves and all other members, to have the accounts taken in t merest. ^ which they are ioiutly interested. interest person- J J J ally made parties. But twenty creditors is not so great a number tbat the incon- in the case of a few creditors. venience of making them parties should lead the court to allow the interests of all to be represented by some of them. Harrison v. Stewardson, 2 Hare, 530. Again, the assignees of deposits on tbe shares in a joint-stock Assignors of de- company cannot sue on behalf of themselves and their assignors ; p0Slts on s ares ' but the latter, however numerous, must be parties to the suit. Blain v. Agar, 1 Sim. 37. And where a bill is filed to have the company dissolved, even ah the share- though its business may have ceased, or to have its affairs wound p'^ny^Tn^ s\ll7o'r up, even though it had been previously dissolved ; it is necessary for'winding"^ that all the shareholders, if possible, should be personally made their aftair3 - parties, however numerous they are, if their interests may be con- flicting. Deeks v. Stanhope, 14 Sim. 57; Harvey v. Bignold, 8 Beav. 343 ; Evans v. Stokes, 1 Keen, 24 ; Richardson v. Hastings, 7 Beav. 30 1 . And hence where a bill is filed by a shareholder in a company, praying for an account and payment of his share, all the other shareholders are necessary parties, because tbe bill in effect seeks a dissolution of the company. Abraham v. Hannay, 13 Sim. 581. A suit cannot be instituted by some of the members of an in- surance company, on behalf of themselves and the other members, for winding up the affairs of the company, although the members are so numerous that it would be utterly impossible to make them all personally parties to the suit. For the object of the suit is to deprive persons of a right who are not parties by cancelling their policies, which cannot be done in their absence. Long v Yonge, 2 Sim. 369. 5. Suits by an incorporated company, by its corporate name. — Where a bill is filed by an incorporated company against the projectors of it to oblige them to account for the value of shares appropriated to themselves without having paid the full consider- ation, the individual shareholders are not necessary parties ; for the transaction impeached is a transaction between the projectors and the corporation, and not a transaction between the projectors, as the owners of shares, and the persons who purchased from them. The Society for the Illustration of Practical Science v. Abbott, 2 Beav. 571. EE 418 NOTE ON PARTIES. [S. VIII. , IX. VIII. Partiesto Copyright Suits. Author. IX. Parties to Suits pertain- ing to the Re- lation of Debtor and Creditor. V -v •» Bank, in a suit to give effect to a charge on stock. Cestui que trust of a bill of ex- change. Cestui que trust, in a creditors' suit. Bond creditors, in a suit by one. Scheduled credi- tors. VIII. Parties to Copyright Suits. The author of a work is a necessary party to a suit by the publisher to restrain an invasion of the copyright, where no actual assignment has been made of the copyright, but only an agreement to assign or dispose of it, and where, consequently, the legal title to the copyright remains in the author. Colburn v. Duncombe, 9 Sim. 151. IX. Parties to Suits pertaining to the Relation of Debtor and Creditor.* 1. Annuitant. See Legatee. 2. Assignee. See Debtor. 3. Bank of England. — In consequence of the statute 39 & 40 Geo. IV. c. 36, the Bank of England ought not to be a party to a suit for the purpose of giving effect to a charge upon stock. Perkins v. Bradley, 1 Hare, 219. 4. Cestuis que Trust. — To a supplemental bill for the repay- ment of a sum of money improperly recovered on a bill of ex- change, the person for whom, according to the allegations of the original bill, the individual who recovered is a trustee, is a neces- sary party, and that, notwithstanding the 32nd order of August, 1841. Pinkus v. Peters, 5 Beav. 253. Where an estate is devised to trustees, upon trust for the tes- tator's widow for life, with power to sell the estate, if a sale should be necessary for the payment of his debts ; the case is one in which the court, under the concluding words of the 30th order of August, 1841, will order the widow to be made a party to a suit by a creditor. Hilt v. Ledbrook, 6 Jur. 1078, V. C. B. 5. Creditors. — A creditor by mortgage and collateral bond cannot sue both as mortgagee and as bond creditor. And a bond creditor cannot sue alone : he must sue on behalf of himself and all other bond creditors. White v. Hiltacre, 3 Y. & C. Eq. Ex. 597. To a bill filed for carrying the trusts of a creditors' deed into execution, the scheduled creditors who have not executed the deed need not be parties. Prosser v. Edmonds, 1 Y. & C. 481. And creditors whose names are scheduled in a creditors' deed, but are not parties thereto, are not necessary parties to a suit by a subsequent incumbrance, to have the monies out of which it was intended to pay such creditors raised ; at least where they are very numerous, and the trustees of the deed are parties to the * See Sect. XIII. S. IX.] NOTE ON PARTIES. 410 suit. Powell v. Wright, 7 Beav. 444. But in a case where a §5iw^?»£™ bill is filed by a creditor against a debtor and the trustees for ,ng l I?iJ"of Re ' certain of his creditors named in a schedule, and it prays payment creditor. of the plaintiff's debt out of the estate vested in the trustees, or out of the proceeds after payment of the debts of the scheduled creditors ; and that an account may be taken of the trust estates and of the receipts and payments of the trustees; all the sche- duled creditors are necessary parties. Cocker v. Lord Egmont, 6 Sim. 311. An official assignee may recover from the representatives of a other creditors. former assignee, monies in his hands consisting of dividends de- clared but unclaimed, without making any creditor a party to the suit : for the order for a dividend is not an appropriation of any particular part of the bankrupt's estate to any particular cre- ditor, but an order to pay a proportion of the debts out of the bankrupt's estate. Green v. Weston, 7 Law J. (N. S.) 67, L. C. 6. Debtors and their sureties and personal representatives and Author of a trus ■* for payment of assignees. — To a suit for the execution of a trust to sell, and to debts. pay scheduled creditors out of the proceeds of sale, and to pay over the surplus to the author of the trust, he is a necessary party, {Bedford v. Gates, 4 Y. & C. Eq. Ex.21) notwithstanding the 40th order, although the defendants say that the trust fund is insufficient for the payment of the creditors, and therefore there will be no surplus for the author of the trust. For if the trust fund should be distributed under the decree of the court, in the absence of the author of the trust, he or his representatives might in another suit obtain a decree against the trustees for an account, and the effect of the former decree might be to give him or them the personal security of the trustees, in substitution for the security of a fund in court. Kimber v. Ensworth, 1 Hare, 293. By the 32nd order of Aug. 1841, "In all cases in which SSSfawKfa". the plaintiff has a joint and several demand against several per- J oint den,and sons, either as principals or sureties, it shall not be necessary to bring before the court, as parties to a suit concerning such de- mand, all the persons liable thereto ; but the plaintiff may proceed against one or more of the persons severally liable." This order does not apply to cases where there is only one principal and one surety. Where several persons are liable in different characters, some as principals, and the rest as sureties, then the order applies in such a way as to render it sufficient to make one individual of each class a party. Lloyd v. Smith, 13 Sim. 457. EE2 420 NOTE ON PARTIES. [S. IX. su'it^ A peJitai T ^- To a suit by a surety against the obligee of a bond, for the ING lItion oh e cancelling of a bond, and for an account of monies received in Debtor and . _ . . . - - Creditor, respect thereof, the principal and co-surety are necessary parties. Principal and co. Allan v. Itouldeu, 6 Beav. 148. And to a suit against trustees, byTsurTty for* seeking to set aside, on the ground of fraud, a bond of indem- a h bond n a C nda n n g °' mtv > an ^ a release to them executed by their cestui que trust, a account. co-obligor in the bond, who was their solicitor, is a necessary Co-obligor in a " bond, in a suit to party. Colby v. Hawkins, 6 Jur. 1G2, V. C. B. And to a bill set the same . n . . . i • • i -i i aside. praying payment of a debt by a surety, the principal debtor, in i^ r 'a s'liitVgah'st res P ect of a possible liability to contribute something to the the surety. surety, is a necessary party, although the bill states that he had been released by the plaintiff, with the consent of the surety. Personal repre- Broo/cs v. Stuart, 1 Beav. 512. And in like manner, in a suit sentative of a ' ' principal co-obii- \,y an obligee of a bond, it is necessary that a personal repre- gor, in a suit by J & J r r an obligee. sentative of one of the principal obligors should be before the court, even where the bill states that letters of administration of his estate have not been taken out, and that there are no assets out of which any part of the plaintiff's demand can be satisfied. Musgrave v. VicJc, 5 Law J. (O. S.) 150, V. C. Assignee of an in- The assignee of an insolvent debtor is a necessary party to a solvent debtor, in °_ _ •> * *" a suit by the in- bill by the insolvent for the delivering up of a bill of exchange solvent. • ' . . . . ° F . . . °. drawn by him prior to his insolvency, because it is prima facie Assignees of an the property of the assignee. Balls v. Strut, 1 Hare, 14G. But insolvent vendor, _ -1,1 i ,1 i • in a suit to re- where an insolvent vendor, and another person, as his surety, strain an action ... . „ ,, n n .," against his surety, join in a promissory note for the repayment ot a part ot the purchase money in case a good title cannot be made, and where the surety files a bill to restrain an action on the note, the as- signees of the vendor are not necessary parties, if the title is found good, or objections to it have been waived or could be properly compensated. Musgrave v. Newton, 4 Law J. (N. S.) 223, V. C. and Lord Commissioner Pepys. 7. Drawer of a bill of exchange. — The drawer of an accommo- dation bill is a necessary party to a suit by the acceptor against the holder to have the bill delivered up to be cancelled. Penfold v. Nunn, 5 Sim. 405. But the drawer of a bill of exchange, who has indorsed it over for value, is not a necessary party to a suit by the acceptor against the drawer's indorsee, for relief against a fraudulent indorsement by such indorsee, after payment of the bill by the acceptor. Earle v Holt, 9 Jur. 773, V. C. W. Heir, in a suit 8. Heir, — The heir of a deceased debtor is a necessary party to under 3 & 4 Will. J J J iv. c. 104. a suit under the stat. 3 & 4 Will. IV. c. 104, for the payment of S. IX.] NOTE ON PARTIES. 421 his debts, by a sale of real estate devised by him. Brown v. J x - parties to J J Suits pertain- Weatherby, 1 Sim. 125 ; overruling Weeltsw Evans, 7 Sim. 546. R , J£ A S? ™ E F And where a testator directs his debts to be paid out of his per- D c*bdxtob! d sonal estate, and the deficiency to be made up out of his real ^ eir j""> estate, and the executors will not prove, because there is no per- personal repre- r 1 sentative, in a sonal estate; in such case, if a creditor's bill is filed, adminis- creditor's suit. tration cum testamento annexo must be taken out, and the admi- nistrator and heir at law, though an infant, must be parties. Fordham v. Rolfe, Talm. I. By the stat. 9 Geo. IV. c. 33, s. 1, the real estate of British Heir and devisee . ,. . . . of real estate in subjects in India is assets in the hands of executors for the payment India - of debts ; and hence the devisee and heir at law of a debtor in India are not proper parties to a creditors' suit. Story v. Fry, 1 Y. & C. Ch. Ca. 603 ; 11 Law J. (N. S.) 3/3, V. C. B. 9. Indorsee. — To a suit by the last indorsee of a lost bill of ex- Prior indorsees of change, to recover the amount from the acceptor, the prior indorsees change, in a suit need not be made parties. Macartney v. Graham, 2 Sim. 285. dLsee. as 10. Legatees. — Where a person dies seised of real estate which Legatees and an -,.-. ,. , 1-t •• ii • i nuitants when was devised to him charged with annuities and legacies, the an- prior incum- nuitants and legatees ought not to be parties to a suit for pay- ment of his debts out of such real estate; because they are merely persons having incumbrances prior to his interest. Parker v. Fuller, 1 Buss. & My. 656. 11. Partners. — Where an executor is a partner in a firm who Partners of an . . • i • i i • • executor, in a suit claim to be entitled to retain assets m their hands m satisfac- by a creditor. tion of a debt which they allege to be due to them from the testator, a creditor of the testator may sue all the partners, where he charges that they all claim to retain the assets, because that amounts to collusion between the executor and the other partners, as it shows that they are all acting in concert. Gedge v. Traill, 1 Buss. & My. 281. 12. Sureties. — When a bill is filed by a person claiming an sureties named in . . i • i a covenant to pay annuity, against a person who has covenanted to pay it, and to an annuity. create a term in certain estates for securing the same, and against a person who has obtained a decree in another suit, on behalf of himself and other creditors named in a creditors' deed whereby the estates were vested in trustees for the creditors who should execute the deed, and against such trustees, praying for an account, and a declaration of the priorities of himself and the other incum- brancers, and a redemption of such as were prior to his own, and liberty to go in under the decree for what he should not be entitled to recover in priority to the trust deed ; all the creditors, 422 NOTE ON PARTIES. [S. X. ix. parties to though numerous (for instance thirty), that have executed the Suits pertain- ~ \ •> ' ,> L^Tio r if op E " deed, are necessary parties ; but persons who have joined as I c E k B e T ditok. d sureties in the covenant to pay the annuity are not neces- • sary parties. Newton v. Earl of Egmont, 4 Sim. .574 ; 5 Sim. 130. Surety in a bond. Nor is a creditor, in enforcing a subsequent security, obliged to make a person who executed a prior bond, as surety, a party to the bill. Adams v. Thompson, 6 Law J. (N. S.) 109, M. R. X. Parties to Suits in respect of Actual or Constructive Fraud. x. parties to Where, through the negligence of a solicitor, a person is ena- SUITS IN RE- • , i • , \ t. 11 spect op actual bled to commit and does commit a fraud, and afterwards be- OR constructive comes bankrupt, his assignee is a necessary party to a suit against ' ' the solicitor. Greenwood v . Atkinson, A Sim. 419. bankrupt who The estate of a deceased executor is sufficiently represented fraud" 1 " 611 a m a sm k by an administrator appointed to attend, supply, sub- ulTor^a'suit 8 " stautiate, and confirm the proceedings, where the object of the charging a de- su ]f j s on i v t charge such executor's estate with a loss occasioned ceased executor s •> ~ estate with a loss, by him. Ellice v. Goodson, 2 Coll. Ch. 4. Representative of The representatives of a person who joined in a fraud, but died johieTin^a'fraud insolvent, without leaving any assets, is not a necessary party. Seddon v. Connell, 10 Sim. 79. Representatives To a suit seeking to affect the personal assets of a testator, of a deceased co- . ., n , . , , executor. the representatives or one or his executors who possessed part of his assets and died before answer, are necessary parties. Brydges v. Branfl, 11 Law J. (N. S.) 249, V. C. E. Re resentative of The personal representative of a mortgagor is not a necessary a mortgagor, in a p ar ty to a suit by an equitable mortgagee to set aside a prior voluntary settle- voluntary settlement of the property comprised in his mortgage. Bostock v. Shaw, 15 Law J. (N. S.) 257, V. C. E. . . To a suit against the devisee of a lease, to set it aside, the ex- Executor of a de- ™ ' visor of a lease, in ecutors of the testator, who have assented to the devise, are not a suit to set it aside. necessary parties in respect of a sum alleged to be due from the plaintiffs in respect of money expended by the devisor in improve- ments. Malpas v. Ackland, 3 Russ. 273. Heir, in a suit to Where a fraudulent conveyance has been obtained, a bill may duient^nvey"" be filed by the devisee of the grantor to set aside the conveyance, ance. without making his heir at law a party. Uppington v. Bullen, 2 Drury & War. 184. solicitor, in a suit ^ n or ^ Y that he may make a discovery and may be made liable fr auduienUy deed ^ or ^ e costs 3 a solicitor who has fraudulently altered a draft may S. XL, XII.] NOTE ON PARTIES. 423 be made a party to a suit instituted for the purpose of rectifying the deed. Beadles v. Bureh, 10 Sim. 332, 9 Law J. (N.S.) 57. XI. Parties to Suits pertaining to the Relation of Husband and Wife. The husband of a deceased woman is not a necessary party to xi. parties to a suit instituted in respect of her chose in action, by persons ing to the A re- li i i • • • i-ii i LATION or Hus- wno have taken out administration to her with the consent and band and wife. as the nominees of the husband. Collins v. Collins, 6 Jur. 49, Husband. V. C. E. Where a. feme covert is a necessary party, her husband must also be a party, although she has lived and still lives apart from him, and although he has had nothing to do with the transaction in respect of which she is made a party. M'Kenna v. Everitt, 1 Beav. 134. Where a testator makes the wife of another man his executrix, supposing her to be his (the testator's) own lawful wife, and she afterwards marries a third person in the lifetime of her real hus- band, and such third person possesses part of the assets ; her real husband is a necessary party to a bill against her by the next of kin, but he cannot insist on their making such third person a party, although they might follow the assets into his hands if they chose. M'Kenna y.Everitt, 1 Beav. 134. Where a bill is filed to give effect to a deed whereby a married wife, a defendant woman assigns her separate property in favour of her husband, husband, she ought not to be a co-plaintiff with her husband, but she ought to be a defendant, in order that she may admit by her answer that the deed was fairly obtained, and was executed by her with a full knowledge of her rights in the property assigned. Hanrot v. Cadwallader, 2 Russ. & My. 545. For other cases relating to this title, see supra, n. (1), p. 30. XII. Parties to Suits for Legacies. To a bill for raising legacies charged on real estate, annuitants xn. parties to who have a priority over the legacies, are necessary parties. Gar- legacies. rett V. Hayter, 9 Law J. (O. S.) 197, M. R. Annuitants, in a Where an executor hands over property to the residuary lega- fegac^esmit'of tee, without setting apart a sufficient sum to answer a particular reaI estate - legacy, for which a bond is given by the residuary legatee, and Bentativea of the the executor states to the particular legatee that the amount of such legacy is less than it really is, the particular legatee may maintain a suit for the difference against the residuary legatee 424 NOTE ON PARTIES. [S. XIII. XI Surrs "ob T0 anc ^ ^ ie representatives of the executor personally, without making v Legacies - , the representatives of the testator parties to the suit, lieasley v. Kenyon, 3 Beav. 544. See also Hudson v. Twining, Taml. 315. A person to whom a legatee of stock has bequeathed the same may file a bill against the trustees of the stock, for a transfer thereof, without making the executors, either of the original testator or of his legatee, parties to the suit, where the bill alleges that they have respectively assented to the bequests of the stock by their respective testators. Smith v. Brooksbank, 3 Law J. (N. S.) 226, V. C. XIII. Parties to Suits pertaining to the Relation of Mortgagor and Mortgagee. xiii. parties to 1. Mortgagors and their representatives and assignees. — The Suits pertain- , . , . . •<■<■ ing to the mortgagor or his heir is a necessary party to a bill by a second Relation of ° ~ J r * J Mortgagee 1 .* 15 mortgagee to redeem the first mortgage and foreclose the equity „\ ' of redemption. And the court will not make a decree in his ab- Mortgagor, in a r ..... i i • suit by a second sence, although he be out of the jurisdiction, and his residence deem and fore- unknown. Farmer v. Curtis, 2 Sim. 466. insolvent mort- ^ mortgagor who has taken the benefit of the Insolvent Act gagor. ought not to be made a party to a suit for foreclosing the mort- gage. Collins v. Shirley, 1 Russ. & My. 638. Bankrupt mort- ^° a mortgagor who has become bankrupt is not a necessary fo? ° r ' i" a suit P art y to a smt f° r a sa ^ e °f ^ e mortgaged estate, as tbe whole of his property, and consequently his right to redeem, is vested in his assignees. Kerrick v. Saffery, 7 Sim. 317. Assignee of an in- Nor is the assignee of an insolvent mortgagor a necessary party S^'to afore- to a foreclosure suit. Steele v. Maunder, 1 Coll. 535. closure suit. rjy Q R ^jrj to re( Jeem which alleges that the mortgagee has been Personal repre- ° m sentativeof mort- over-paid, the personal representative of the mortgagor is a gagor, in a suit to . redeem. necessary party. Baker v. JJ eston or JJ etton, 9 Jur. 98, V.C.E. Personal repre- The surviving partners of a firm, one of whom deposited title deeds with the firm as a security for money borrowed by him and by another person, cannot file their bill against his heir for a sale of the estate to which the title deeds relate, without making his personal representative a party : for if the heir suggests that the debt has been satisfied (which, in the given case, it might be by a balance being left in the hands of the partners sufficient to pay the debt), that must be investigated; and it cannot be inves- tigated in the absence of the personal representative. Scholefeld v. Ileafield, 7 Sim. 667. other mortgagees 2. Mortgagees and their representatives. — Where the trustees sentative of a mortgagor, in a suit for a sale. S. XIII. ] NOTE ON PARTIES. 425 of a turnpike road assign to a mortgagee such proportion of the xm. Parties to Suits pertain* tolls as the sum advanced by him bears to the whole principal ing to' the' ' k l Relation op money advanced on the credit of the tolls, the other mortgagees mortgagor and of the tolls are necessary parties to a suit by him against the v / ' , . n /» . i n of tolls, in a suit trustees to obtain payment ot arrears of interest out of the tolls, by one mortgagee. Mellish v. Brooks, 3 Beav. 22. " The heir of a mortgagee to whom the legal estate in the mort- Heir of a mort- gaged premises has descended, is a necessary party to a bill of closure suit. foreclosure filed by the executor of the mortgagee." Scott v. Nicholl, and Ilampson v. Nicholl, 3 Russ. 4/6. Where a mortgage was made to several persons jointly, whether Representatires as trustees or not, the representatives of such of them as are gagees. dead are necessary parties to a bill for foreclosure or redemption ; because, although at law the whole debt and security vests in the survivor, yet in equity the mortgagees are tenants in common. Vickers v. Coivell, 1 Beav. 529. A second mortgagee may sustain a bill of foreclosure against First mortgagee, the mortgagor and the subsequent mortgagees, without making second. ' the first mortgagee a party. Richards v. Cooper, 5 Beav. 304 ; Rose v. Page, 2 Sim. 4/1. Where a receiver appointed in a suit instituted by incumbrancers Prior incum- has been ordered to keep down the incumbrances out of the by a judgment rents, and to pay the residue to the owner of the estate, a subse- t " quent judgment creditor may file a bill against the owner and receiver, without making the other incumbrancers parties, to have his debt satisfied out of the surplus rents, after keeping down their incumbrances. Lewis v. Lord Zouche, 2 Sim. 388. 3. Trustees and cestuis que trust. — To a bill to redeem mort- Creditors named gaged property which has been assigned (subject to the mortgage) STp^ertyln""' to trustees for scheduled creditors, the creditors are not suffi- ITSm!" a SuU ciently represented by the trustees, where at least no reason is given in the bill for not making the creditors parties. And the defect is not supplied by bringing a few of the creditors before the court by a supplemental bill, without making the trustees parties thereto. For, if the court, for the sake of con- venience, is to dispense with the presence of any of them as parties to a bill, the trustees ought to be parties to that bill, in order that they at least may be able to inform the court whether it is sufficiently framed with reference to the interests of all the cestuis que trust. Holland v. Baker, 3 Hare, 70. According to the case of Osborn v. Fallows, to a suit for the Cesiuis i ue tru ^ j . n 1-11 °f a Mortgage redemption of a mortgage term, which the mortgagee has de- term und " a 426 NOTE ON PARTIES. [S. XIII. xin. parties to vised in trust for several persons, all those persons are necessary Suits pertain- ± * i j lvtion o"mort- parties ; although they are numerous and the property small ; mortgagee, and although the mortgagee's will directs that the receipt of the ™~ ' , .„ trustees shall be a sufficient discharge to purchasers. 1 Russ. & mortgagee s will, ~ l in a suit to re- My, 741 . But see the 30th order of August, 1841. deem. J ° Cestuis que trust To a suit for a foreclosure or a sale, persons beneficially inter- m^nTo^-fn equity ested under a settlement of the equity of redemption made by a foreclosure sui". the mortgagor, and standing prior to him in the limitations of such settlement, and having consequently a prior right to redeem, are necessary parties. Anderson v. Slather, 9 Jur. 806, V. C. B. Trustees of a A person cannot maintain a suit for a redemption, without charge, in a suit . - . . for redemption, making the trustees ol a charge on the estate anterior to the interest claimed by him, and also (where not exempted by the 30th order of August, 1841,) the persons beneficially entitled to that charge, parties to the suit. Henley v. Stone, 3 Beav. 356. Retired trustee of To a bill of foreclosure, a trustee of the mortgage monies in a foreclosure 8 ' who has retired, but has not been freed from the trust by the suit substitution of a new trustee in his room, is a necessary party, although a memorandum is indorsed on the deed by which he was appointed, expressive of the assent of the cestuis que trust to his discharge, and purporting to assign and yield up the trust monies and authorities to the co-trustees. Adams v. Paynter, 1 Coll. 592. Trustees, in a Trustees appointed by the mortgagor of a reversionary interest foreclosure suit. rl ^ ° ° ^ in stock, in trust to sell the same, and pay off the mortgage debt, and to hold the surplus for the mortgagor, are not proper parties to a bill of foreclosure. Slade v. Rigg, 3 Hare, 35. Purchaser of an 4. Parties to mortgage suits generally. — Where the owner of ^ai'Vn'a^uu for tw0 estates comprised in the same mortgage, afterwards mort- foreciosure of gages one °f them to another person, and sells the other to a another estate S> O r ' comprised in the third person, and then the first mortgagee files a bill of foreclo- same mortgage. r ° ° sure of the estate twice mortgaged, the purchaser of the other estate is a necessary party. Payne v. Compton and Compton v. Payne, 2 Y. & C. 457. representatives Where a tenant for life and a tenant in tail join in a mortgage, life, in a fore- and afterwards in a sale of the estate, and the mortgagee files a bill of foreclosure after the death of the tenant for life, the repre- sentatives of the tenant for life must be parties to the bill, because they are entitled to some part of the purchase money. Chalie v. Gwynne, 6 Law J. (N. S.) 2/4, M. R. S. XIV.] NOTE ON PARTIES. 427 The 23rd order of /Vug. 1841 does not make it sufficient for a judgment credi- n , . /• i i 'u tors, in a fore- mortgagee in a foreclosure suit to serve a copy ot the bill upon closure suit. judgment creditors whose judgments were entered up subse- quently to his mortgage. Adams v. Paynter, 1 Coll. 530. XIV. Parties to Partnership Suits.* A suit for the dissolution of a partnership cannot he main- xiv. parties to tained by some of the partners on behalf of themselves and the suits. rest. All the partners must be parties by name. Wilson v. p ar tners, in a suit Chester, 1 Law J. (N. S.) 12G, V. C. See also cases supra, {or d dis ' sointion - Sec. VII., p. 417. Where several persons enter into a speculation, by which a loss partners, in a suit is sustained, a bill by one of them against, another for his propor- aga^^nottier tion of the loss, without making the others parties, is defective for O * t - r a h j 0i £ roportlon want of those parties, although the plaintiff allege and prove that they have settled with him, and that nothing is due from or to them, to or from the defendant. Hills v. Xash, Phil. 594. To a bill filed for the purpose of obtaining relief against the ,. . . r I o o Surviving part- assets of a deceased partner, the surviving partners must be made ners > in a suit f l against the ex- parties, though no decree is sought against them ; because they ecllt °rs of a de- ... . . , P •'ceased partner. are necessarily interested in taking the account of the amount of the joint debt. Thorpe v. Jackson, 2 Y. & C. Eq. Ex. 553. A creditor of a partnership firm may file a bill on behalf of himself and all other creditors for payment of the partnership debt out of the estate of a deceased partner in the first instance, although there be no proof that the surviving partner is insolvent. In such a suit, however, the surviving partner is properly made a co-defendant, as being interested to contest the demands of the creditors, although the remedy against the surviving partner is altogether at law. Wilkinson v. Henderson, 1 M. & K. 582. The residuary legatees of a deceased partner, even without Surviving pa itner charging or proving collusion, may maintain a suit for au account U 1 "' exec ' utor p f a o o r o > J deceased partner of his personal estate against his executors, and against a sur- in a st "l for ac - , " ~ ° count of personal viving partner and the executors of another deceased partner, estate of another 01 l deceased partner. where the latter have purchased the share of the first mentioned deceased partner from his executors, but the partnership accounts were inaccurately taken. Law v. Law, 2 Coll. Ch. C. 41. To a suit in which a firm to whom remittances have been Representatives made will have to account, the representatives of a deceased p^wfta^suit partner are necessary parties. Miller v. Crawford, 9 Law J. jJJJjJJ^hto'tawB (N. S) 193, L. C. to account. One partner may file a simple bill for a contribution in respect insolvent co- * See Section VII. NANTS Common of Real oe Personal Estate. 428 NOTE ON PARTIES. [S. XV. partners, in a bill of an over payment by him, and not for an account, against some for contribution. , J . . of his co-partners, without making insolvent partners parties to the suit. Jones v. Morgan, 10 Jur. 238. XV. Parties to Suits by or against Tenants in Common of Real or Personal Estate.* xv. parties to Where one of two tenants in common files a bill for the re- SUITS BY OR *sah«t te- covery of his share against a person who threatens and intends to set up an outstanding term so as to prevent him from succeeding in an action of ejectment commenced by him, the other tenant Tenant in com- m common is a necessary party, if the bill prays that an raon and trustee " ■*■ " x J of outstanding account may be taken of the rents and profits received by the term, in eject- J . . ment bill by defendant, and that the defendant may deliver up the title deeds ; another tenant in common. but the trustee of the term need not be a party. Brookes v. Burt, 1 Beav. 106. Person entitled to A bill may be filed for the moiety of a legacy by one of two legacy or fund, persons entitled to the legacy, without making the other legatees another person a party. Ilughson v. Cookson, 8 Law J. (N. S.) Ex. R. 68. where there is no Where a sole surviving executrix, who is beneficially interested in a moiety of her testatrix's estate, files a bill against a person who has received part of that estate abroad, the representatives of the person beneficially interested in the other moiety must be before the court. But it will be considered sufficient (at least, if not objected to until the hearing) if such sole surviving executrix takes out administration in the prerogative court to the party interested in such other moiety, although that party left a will which has been proved in a foreign country. Price v. Bewhurst, 6 Law J. (N. S.) 226, V. C. In Hutchinson v. Townsend, Lord Langdale, M. R., on the authority of Smith v. Snoiv, 3 Mad. 10, held that a person en- titled to one-fourth of an ascertained and appropriated fund, vested in a trustee, may sue for his one-fourth share without making the parties entitled to the other three-fourths parties to the suit ; although his lordship said it would be very inconvenient to encourage suits of this description. To deal with a fund in parts would occasion a multiplicity of suits. 1 Keen, 6/5. Persons entitled According to the case of Alexander v. Mullins, where an exe- for a share of a , . , trust fund, in a cutor neglects to make an investment to answer a legacy to cer- suit for a breach . ln . r>,iii i i ■ of trust, insti- tain persons, and dies, one of the legatees cannot proceed against i)"r!on y entitied to liis assets for his own share, without suing on behalf of himself another share. au j ^g 0l her legatees, or making the other legatees parties ; for a person having an interest only in a portion of a debt, cannot * See Section VII. S. XVI.] NOTE ON PARTIES. 429 maintain a bill for tlic recovery of his share, without suins in X Y- Pa »ties to J O Suits by or that way. 2 Russ. & My. 568. And according to the case of *%££?£?• French v. Cockerell, one of two persons who are entitled in C ™ p° e N rs£na E l AL moieties to a trust fund, cannot file a bill for a misfeasance as * STATE ' ■ to the whole fund, without making the other a party ; for other- wise the defendants would be subject to a second suit. 8 Sim. 219. But according to the case of Ferry v. Knott, a suit may be maintained for a breach of trust in respect of an ascertained fund, by a party entitled to a moiety thereof, without making the per- son entitled to the other moiety thereof a party. 5 Beav. 293. Where a testator bequeaths certain sums to two persons, upon trust to appropriate and apply the same, in two equal parts or shares to be divided, for their children respectively, the fund is so divided into distinct parts, as to make it unnecessary for a plaintiff filing a bill in respect of a breach of trust as to one part only to bring the parties interested in the other before the court. Obeston v. Banister, 4 Beav. 205. XVI. Parties to Tithe Suits. To a bill for the tithes of oysters customarily paid by the pro- xvi. parties to prietors or occupiers of oyster-boats, the crews of the boats are v ' TUF ^ UITS - 1 not necessary parties, although they are paid a certain sum for a ^ r e ™* of °>' ster - given number of oysters taken : for it is not considered that they have any interest in the fish themselves, but that they are paid wages proportional to the number of fish they take. Per- rott v. Bryant, 2 Y. & C. Eq. Ex. 61. To a bill for tithes by a vicar against the occupiers, the impro- impropriator, in priator ought not to be a party, although the bill alleges that the *-^ by the tithes in question have always been received by the impropriator. Cook v. Blunt, 2 Sim. 417. Where in a bill for tithes it is charged that the landowner has Landowner, documents in his possession which would support the plaintiff's case, the plaintiff may make him a party to it, for the purpose of discovering from him such documents. But the plaintiff in a suit which does not seek the establishment of a right to take tithe need not make the landowner, as well as the occupier, a party, unless he chooses ; and if he does choose to make the land- owner a party, he does it at the hazard either of not receiving his costs, although he should get a decree against the occupier, or of paying them, according to the circumstances of the case. Bay v. Brake, 3 Sim. 64, 72. In a suit by an impropriate rector for an account of tithes, and Vicar, in a suit by 430 NOTE ON PARTIES. [S. XVII. au impropriate rector. X tithe furrs . T ° no ^ to establish a right to take tithes, when the defence is that the tithe in question is vicarial, and the vicar, who is a defendant, dies during the suit, it is not necessary to make the new near, as well as the executor of the former vicar, a party, if the plaintiff will waive the account subsequent to his induction. Daws v. Bean, Jac. 95. XVII. Parties to Suits pertaining to the Relation of Trustee and Cestui que trust. XVII. Parties to Suits per- taining to the Relation of Trustee and Cestui que trust. i y ' Representatives of the author of a trust, in a suit for the execution thereof. Personal repre- sentative of the author of a trust, in a suit by a trustee against his agent. Representatives of the maker of a note, in a suit against a trustee thereof. Trustee who lias not acted. A trustee, in a suit against co- trustees who have improperly sold thetrustproperty. Trustees of a settlement, in a suit by their cestuis que trust against the trus- tees of a former settlement. Trustees of a term and por- 1. Author of a trust and his representatives. — To a bill for the execution of a trust, the representatives of the donor are not necessary parties, although on the face of the bill it appears somewhat doubtful whether a valid trust was created. Reed v. O'Brien, 7 Beav. 32. And to a suit for an account against a person who has managed trust property for a trustee, the personal representative of the testator w T ho created the trust is not a necessary party. Brad- stock v. Whatley, 7 Jur. 409, M. R. When the maker of a promissory note places the money thereby secured in settlement upon another person, the cestui que trust may sustain a suit against the trustee, seeking to affect him with a breach of trust in improperly allowing the money to remain outstanding, and to compel him to pay the money, with- out seeking to recover the money from the representatives of the maker of the note, or making them parties. Platel v. Cradock, C. P. Cooper, 481, V. C. E. 2. Trustees and their representatives. — A person who has ac- cepted a trust merely by executing a deed appointing him a new trustee, but has never acted, is not a necessary party to a suit against trustees for a breach of trust. Wilkinson v. Parry, 4 Russ. 274. Where two out of three trustees of a lease belonging to a club improperly sell it, the third is not a necessary party to a suit for an account of the purchase money and for winding up the affairs of the club. Richardso?i v. Hastings, 7 Beav. 301. Where a fund is lost in consequence of not being transferred from the trustees of one settlement to the trustees of a subse- quent settlement, the cestuis que trust under the second settle- ment may file a bill in respect of the loss, without making the trustees of that settlement parties, because the cestuis que trust represent the trustees. Munch v. Cockerell, 8 Sim. 219. To a bill for the appointment of new trustees for preserving S. XVII.] NOTE ON PARTIES. 431 contingent remainders, the trustees of a term for raising portions xvn. parties which is prior in point of limitation to the estates of the trustees »iinwGTo P Tira , ,• . t . Relation op to preserve contingent remainders, are necessary parties : but the trustee and . ,. . " Cestui hie portionists are not indispensable parties. Ellison v. Cookson, 2 tbu st. UOll. oZ. tionists, in a suit Where a bill is filed for an account of personal estate received by ment of'new"'" trustees, a person who has obtained administration of the estate p^raonai re n- of one of them "for the purpose only to attend, supply, substan- f entaUv ." of a 11 J ' lrJ> trustee.masnitfor tiate, and confirm the proceedings in the suit," is not sufficient an account of re- ° ceipts of trustees. to represent the deceased trustee : a person who represents his personal estate generally must be brought before the court. Clouffh v. Dixon, 10 Sim. 564. To a suit for the recovery of property deposited with trustees Personal repre- ss an indemnity to them against a supposed breach of trust, the ceasedco-tnietee] representative of a deceased trustee is a necessary party, because recovery ot^ro- if it is the case that a breach of trust was committed, the estates ^"nd^mnit^o 18 of both the trustees are liable, and therefore the representative the tmstees - of the deceased trustee is interested in upholding the indemnity. Meinertzhagen v. Davis, 7 Jur. 1 103, V. C. B. By the 32nd order of August, 1841, "in all cases in which Trustees, in the the plaintiff has a joint and several demand against several persons, demand on them, either as principals or sureties, it shall not be necessary to bring Aug. 1841. before the court, as parties 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." This order renders it unnecessary in a suit for a breach of trust to bring all the parties to the breach of trust before the court. {The Att. Gen. v. The Corporation of Leicester, 7 Beav. 1/6 :) and indeed, a suit may be instituted against one of them alone. Kellawny v. Johnson, 5 Beav. 319. On this subject, see also Att. Gen. v. Wilson, Cr. & Phil, 1 ; and Seddon v. Connell, 10 Sim. 79. The 32nd order extends to the simple case of a demand on ex- ecutors jointly implicated in a breach of trust. Perry v. Knott, 4 Beav. 179 ; 5 Beav. 293. But it does not apply to an adminis- tration suit. So that where executors commit a breach of trust, and one dies before any suit is instituted, his personal represen- tatives are necessary parties to a suit instituted for an admini- stration of the testator's estate, and for relief in respect of such breach of trust. Hall v. Austin, 10 Jur. 452. See also Biggs v. Perm, 4 Hare, 469 ; and observations thereon, 4 Hare, 624. 432 NOTE ON PARTIES. [S. XVII. xvii. parties to And where real property is left to trustees upon trust for one Suits pertain- i r j i ING lItion E of Re " °f tnem for life » subject to charges incident thereto, and that cestu1Vue D party is, suffered by the others to receive the rents and profits, y TEUST - , w ithout satisfying such charges in the manner directed, a suit cannot be instituted for the breach of trust against such others of them alone, notwithstanding the 32nd order. Shipton v. Rawlins, 4 Hare, 619. * Tenant for life 2. Tenant for life. — And where executors transfer a stock a breach of trust, into the joint names of one of them and of the tenant for life of the stock, and, on the death of that executor, tbe tenant for life sells out the stock, and applies it to his own use ; in such case, although under the 32nd order a bill may be filed against any one of the executors singly in respect of tbe first breach of trust in transferring the stock ; yet the tenant for life, or his representative, is a necessary party, inasmuch as he is the party, or the representative of the party, by whom the first breach of trust was made an occasion of actual loss to the other parties beneficially interested. Perry v. Knott, 5 Beav. 293. Cestui* que trust, 4. Cestuis que trust. — A trustee may file a bill against his in a suit by a . . . . 1 • 1 trustee against his co-trustee, to recover the trust fund, without making the cestuis Ccstuts que trust, ^ ue trust P art ies. May v. Selby, 1 Y. & C. Ch. C. 235. And in a suit by the ^o a suit instituted by the representatives of a deceased trustee representatives of j i a trustee against against surviving co-trustees for a contribution towards making surviving co-trus- . tees - good a loss occasioned by a breach of trust, the cestuis que trust are not necessary parties. Robinson v. Evans, 7 Jur. 738, S a suuto recu- V - C - W - And a suit ma y be maintained by a trustee against iurities trUSt se * one °^ severa l cestuis que trust, to recover the trust securities, without making the other cestuis que trust parties. Bridget v. Hames, 1 Coll. 72. Cestui* que trust, Where a suit is instituted by creditors to set aside an assign- in a suit to set . aside a settle- ment made by a father to a trustee for his children, they must be ment. J . - . defendants, although they were not parties to the assignment. Tenchardv. Finch, 4 Law J. (N. S.) 177, M. R. Cestuh que trust, To a bill bv a trustee of a sum secured by a policy of assur- of a sum secured • t n> by a policy. ance, to compel the person on whose life the policy was effected, and who had fraudulently surrendered it, to pay the amount assured, the cestuis que trust are necessary parties, in a case where, if they were dead, the person so surrendering the policy would have been entitled to the benefit of the policy. Fortescue v. Barnett, 2 Law J. (N.S.) 98, V. C. Next of kin to Where property is bequeathed in favour of a person for life, whom, as cestuis itj^l i que trust, proper- an d after his death to such persons as shall then be the next of ty is limited. * S. XVII.] NOTE ON PARTIES. 433 kin of the testator, and a bill is filed for the appointment of new s£its P pb*tai™ trustees, the next of kin of the testator at the time of filing the IN latioji o/' bill are necessary parties. JFardellv. Claxton, 1 Y. & C. Ch.*C. 265. cestui que J ' TRUST. (As to cestuis que trust of a prior term, see Ellison v. Cookson, v \ 1 supra, p. 431.) By the 30th order of August, 1841, "in all suits concerning Cestui* gwtnat f O ' ' ° represented under real estate which is vested in trustees by devise, and such trustees the yoth order of 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 the 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 inter- ested in such personal estate ; and in such cases it shall not be necessary to make the persons beneficially interested in such real estate, or rents and profits, parties to the suit. But the court may upon consideration of the matter on the hearing, if it shall so think fit, order such persons to be made parties." Trustees may represent the persons beneficially interested in the proceeds of an estate under this order, although there is no clause in the will empowering the trustees to give discharges. Savory v. Barber, 4 Hare, 125. And they may do this even where the suit is by some of the persons beneficially interested, and where their conduct is impeached in several particulars. Osborne v. Foreman, 2 Hare, 656. But this order does not apply to a case in which the equitable interest only is vested in trustees by devise, although they are empowered to give discharges for the proceeds. Turner v. Hind, 12 Sim. 414. The order applies to those cases in which trustees have a present absolute power to sell real estate, and not to cases where they have no power to sell, except with the consent of another person. Lloyd v. Smith, 13 Sim. 457. Nor does it apply where the bill asks that the whole of the testator's real and personal estate may be administered. Miller v. Huddleston, 13 Sim. 46/. 4. Other parties. — Where a trustee of personal property Person joining in belonging to a club improperly sells it, and another member of ofpropenrim- 06 the club joins in the receipt for the money, but does not receive trustee. 7 s ° any part of it, he (the latter) is not a necessary party to a suit against such trustee in respect of the sale. Richardson v. Has- ting, 7 Beav. 301. FF 434 NOTE ON PARTIES. [S. XVIII. Mortgagee of Where some of the plaintiffs in a suit for carrying the trusts of plaintiffs' interest. . . . .... a will into execution mortgage their equitable interests pending the suit, the mortgagee is a necessary party. Solomon v. Solo- mon, 13 Sim. 516. XVIII. Parties to Suits between Vendor and Purchaser.* X t"suits R be ES '• G enera l rule- — To a common bill for a specific performance a T xd E pur V chaser. the parties to the contract are in general the only proper parties. v > ' Wood v. White, 4 M. & C. 460. Purchaser of one 2. Purchaser and his trustees and representatives, Src. — Where lot, in a suit for a ~ ' ~ specific perform- t wo houses, held under one lease, are sold in separate lots ; and ance of the pur- _ >■ chase of another it is stipulated that the purchasers shall be parties to each other's assignment, the purchaser of the one lot, if ready to concur in the assignment of the other lot, is not a necessary party to a suit for the specific performance of the purchase of that lot. Pater- son v. Long, 5 Beav. 186. kit^in^uu "b ° ne ^ u ^ ^° a ^iH ^Y a purchaser for a specific performance of a con- purchaser of tract for sale of one lot, the purchaser of another lot, which at the another. r time of the sale was agreed to be augmented with a part of the former lot, is a necessary party ; because it would be improper to leave the vendor exposed to another suit by the purchaser of the lot agreed to be augmented. Mason v. Franklin, 1 Y. & C. Ch. C. 243. Purchaser, in a Where trustees for sale of leaseholds file a bill against the iana*ord b to g give a landlord to oblige him to give his license to the assignment of license to assign, j. ne premises to a person to whom they have been sold, the pur- chaser is a necessary party ; because, if he were not made a party, the landlord might be harassed with another suit for the same purpose by the purchaser. Maule v. The Duke of Beaufort, 1 Russ. 349. original pur- "The original vendee of an estate is not a necessary party to Hgafitst .hisNfs'- 1 a bill against his assignee for a specific performance of an agree- cRSormX;. ment to purchase." Hall v. Lever, 3 Y. & C. Eq. Ex. C. 191. Person for whom Where a bill for a specific performance is filed by a vendor madeT hase """ against a person who disclosed to the vendor that he made the purchase for his trustee, the trustee must be a party to the suit. Wynniat v. Lindo, Taml. 512. Cestui s qua trust To a bill by a trustee of property against the vendor thereof aSSurcSSweiv " f° r a conveyance, the persons in trust for whom it was limited to convex' ance from suc b trustee by the purchaser are necessary parties. Jostling v. the vendor. jfc^ 3 Beay> g94 * See Section VI. S. XVIII. ] NOTE ON PARTIES. 435 Where a bill is filed to set aside a conveyance made to the x Zl Il i7,$Z T n* s * 1U oil IS lit- defendant, and the defendant makes a conveyance and lease pen- /^purIhasm. dente lite, his heir is a proper party to a supplemental bill J~ J ' r 1 J i r Heir and personal against the purchaser and lessee ; because his heir ought to join representative of 01 *» * a purchaser who in the reconveyance ; and his personal representative is also a pro- has resold pend- ...... , inga suit for set- per party, because the plaintiff is entitled to an account ot the ting aside the rents which the defendant might have received, if the lands had not been sold or leased. Trevelyan v. White, 1 Beav. 588. 3. Other parties to suits between vendor and purchaser. — Heir of a x m vendor, in a suit The heir at law of the vendor of real estate is a necessary party by his adminis- . . » . . -. 1 trator for specific to a suit by the administrator of the vendor against the purchaser performance. for specific performance of the contract, even though the legal estate is outstanding in a trustee. Roberts v. Marchant, 1 Hare, 547. Where a husband, who is seised of an estate in right of his Widow, in a 7 ° suit to rescind wife, contracts to sell it, as if it were his own ; and his wife, even a contract for the sale of her estate if after his decease she could adopt the contract and enforce a by her husband, specific performance thereof, does not attempt to do so, she is not a necessary party to a bill of revivor tiled by the purchaser against the husband's executor to rescind the contract on the ground of fraud. Humphreys v. Hollis, 1 Jac. 73. Where a bill for a specific performance is filed by a person who Mortgagee and 1 ' J 1 tenant for life, in has contracted to purchase the absolute legal and equitable in- a suit f °r specific 1 ^ ° l _ performance. terest in a mortgaged estate from a person who claims to be entitled to the equity of redemption, the mortgagee, who has not joined in the contract, must not be made a defendant ; because he has no interest in the specific performance of the contract : the performance of it cannot affect his security or interfere with his remedies : the purchaser is not entitled to redeem until the completion of the contract, and then the mortgagee is not at liberty to dispute his title, or to withhold the estate on repay- ment of the mortgage money. Nor in such case can a person who claims a life estate in the equity of redemption, but has not joined in the contract, be made a defendant, though the mort- gagee is not willing to convey to the purchaser without having competent authority for so doing : for, as we have seen, the general rule is that to a bill for specific performance, the parties to the contract are the only proper parties ; and there is no ground for departure from the general rule in this case. Tasher v. Small, 3 My. & C. 63. See also Hall v. Lever, 3 Y. & C. Eq. Ex. 191, and White v. Wood, 4 My. & C. 460. If a purchaser of a copyhold estate re-sells it before it is sur- Mortgagee of a purchaser not a FF 2 436 NOTE ON PARTIES. [S. XVIII. X to II s'uits R be1 s rendered to him, and thereupon the first vendor agrees to surren- anVpubchaser. der it to the second vendee ; and then the second vendee borrows necessary party to mone y an( l agrees to surrender the copyhold to the lender by way chaser aRainstT' °^ mort g a g e 5 wno gi yes notice of such agreement to the first ven(lor - vendor, and requires the surrender to be made to him (the mort- gagee), the latter is not a necessary party to a bill filed by the second vendee against the first vendor, praying a surrender to be made to him, the second vendee. v. Walford, 4 Russ. 3/2. Payee, in a suit j n a su {^ f or ^g specific performance of a covenant to pay a for specific per- r t i j formanceofa sum f money to a person for the use of the plaintiff, and to covenant to pay. — . incumbrancers, secure an annuity bv a charge on real estate, the person to whom in a suit for spe- . . . cificperformance the money is covenanted to be paid, and incumbrancers on the of a covenant to " . secure an annuity real estate whose incumbrances are alleged to have been created on rcnl cstutc in fraud of the plaintiff, are necessary parties. Paterson v. Wellesleij, 6 Law J. (N. S.) 190, V. C. a person assum- A man who after going through the marriage ceremony with ing the character . . , . . . . of husband. a woman, joins with her as her husband in assigning her interest in a trust fund, but was at that time married to another woman, is not a necessary party to a suit for the benefit of such assign- ment. Sturge v. Star, 2 M. & K. 195. Tenant, in a suit A person is not a necessary party merely because one object of formance and to the bill is to restrain an act by which he is affected. So that where a bill is filed by a vendor for a specific performance and to restrain a trespass by the purchaser in the mean time, the tenant, not being a party to the purchase contract, is not a necessary party to the suit. Robertson v. The Great Western Railway Company, 10 Sim. 314. Third party to an According to the case of Greathed v. The London and South- agreement. ° . . , Western Railway Company, the court will not by way of injunc- tion enforce a distinct subsidiary part of an agreement between two parties in the absence of a third party to the agreement, and without giving relief in respect of the whole of such agreement. 10 Jur. 343. I N D E X. A. ABATEMENT, 68—72, 83, 120. by what circumstances occasioned, 68, et seq. how suit restored, 83. See Death. Marriage. ACCIDENT, 134, 146, 149, 150, 153. ACCOUNT, 141, 142, 145. may be limited to the time of filing the bill, 318. stated, see Plea. where there is error or fraud in, 302, 306, note(«). See Answer. ACKNOWLEDGMENT, with reference to the statute of limitations, 314, 315. ADDRESS, see Bill. ADMINISTRATION, limited to subject of suit, 204, 205. See Parties. (Administrator.) ADMINISTRATOR, see Parties. Plea negative. AFFIDAVIT, see De bene esse. Delivery. Discovery of Deeds of Writings. Execution. Interpleader. Perpetuation of Testimony. Relief upon Deeds or Writings. Review, Bill of. Supplemental Bill in nature of Bill of. 438 INDEX. AGENT, principal, in many cases, has a right to discovery from, 185. privity between his vendee and principal, ib. notice to, is notice to principal, 323. See Interpleader. AGREEMENT, specific performance of, 140, 141. feffect of part performance, 309. by parol < as to confession of, in answer to bill for specific per- L formance, 310, 311. to refer to arbitration, see Plea. not specifically performed, 308. ALIEN, see Discovery. Persons. Plea. ALIENATION, pendente lite, effect of, wbere compulsory, 78, et seq. where voluntary, 88, et seq. ALLEGATION, as to frame and sufficiency of, 45 — 49. See Demurrer. AMENDMENT of pleadings generally, 19. See Answer. Bill. Demurrer. Infant. Plea. ANSWER, 15, 16, 123, 127, 357. principal end of requiring, 5 1 . general nature of, 357. form of, 374. where the proper mode of defence, 362. what must be answered or not, 52, note (2), 358 — 372. answer of a sole defendant, 358, note (1). necessity of putting in some answer, though not required to answer any interrogatories, 358, note (1). must not be evasive, but must meet substance of each charge, 366. must be particular to particular charges, 366 — 368. manner in which sufficiency of determined, and deficiency sup- plied, 376—378. overrules i INDEX. 439 ANSWER— -continued. as to materiality of, 365. as to scandalous matter, 359, note (I). scandal or impertinence in, 372, 373, 37\). where it must be signed by counsel, 376. of a quaker ; of a moraviau ; or of an infidel, as a jew or a maho- metan, 10, note. of a trustee, incumbrancer, or heir, 365, note (m). of new trustees, 3/4, note (2). of a new master of a school, 375, note, of a stakeholder, 374, note (2). of an infant, 375. of an idiot or lunatic, 376, of a feme covert, see Married Woman. of attorney -general, 376, note, as to accounts, 368, 369. /demurrer, 381. plea, 351, 381. where defendant may thereby protect himself from making full discovery, 256. discovery enforced by, if connected with plaintiff's title, 370, 371. discovery enforced by, although plaintiff's title denied, 369 — 371. discovery not enforced by, if ground of plaintiff's title be denied, 371. discovery not enforced by, if counter title be set up, 370. as to discovery independent of plaintiff's title being compelled, 371. where defendant sets up modus; denies plaintiff's claim without admitting assets ; denies custom ; or denies partnership and privity; and declines to set forth account, 369, 371. i * « 11 i /when, 385, 390— 392. amendment of, allowed, i . L at hearing, 390, 395. supplemental, 386, 387. in support of plea, see Plea, and see, 270, note (1), 280, et seq., 285, 286, 347, 348. may be excepted to, 35 1 . accompanying plea or demurrer, if the latter defence be overruled, must be excepted to, 378. read to counterplead plea, 351, 356. after plea or demurrer overruled, 17, 357. further to original bill, 19, 379. insisting on same matter as first, after exceptions thereto allowed, 377, 378. 440 INDEX. ANSWER— continued. to amended bill, 379, 383. as to right of each defendant to file separate, 358, note (J), objecting to bill of revivor, 336, 337. as to reading answer to a cross-bill, 240, note (1). as to such mode of defence to a bill of review, 340. and disclaimer, 380. See Agreement. Combination. Defendant. Demurrer. Exceptions. Infant. Interrogatories. Plea. Statute of Frauds. Time. Trust. APPEAL, see Remainder. APPEARANCE, to original bill, 55. to bill of revivor, 93. ARBITRATOR, see Agreement. Demurrer. Plea. ASSETS, 148, 158. See Answer. ASSIGNMENT without license, see Demurrer to Discovery. ASSIGNOR, see Parties. ASSIGNEE, of party to a decree, bill by, 115. See Demurrer. Parties. ATTAINDER, see Persons. Plea. ATTORNEY, see Parties. Plea to Discovery. INDEX. 441 ATTORNEY-GENERAL, 23, 120, 123, 195, 19G. See Answer. Crown. Defendant. Parties. AVERMENTS, see Bill. AVERMENTS IN PLEA, necessary, 347. object of, 348. must be sufficient to support it, 348. should in general be positive, 347. may be negative, 347, 348. instances, 309, 313, 322, 340 See Plea. AWARD, see Plea. B. BANKRUPT, bill by, not stating his bankruptcy, 329, note (n). as to discovery by, 330, notes. how to act where his assignees refuse to institute or to prosecute a suit, 8 1 . See Defendant. Demurrer. Plaintiff. Plea. BANKRUPTCY, does not abate a suit, but merely renders it defective, 79 — 83. commission how to be disputed, 80, note. BARGAIN AND SALE, without enrolment, 138. BILL IN CHANCERY, what proper object of, 8. what generally sought by, 8, 9. by whom it may be exhibited, see Persons, Plaintiff, 22, et seq. against whom it may be exhibited, see Defendant, Persons, and 32, et seq. 442 INDEX. BILL IN CHANCERY— continued. must be signed by counsel, 57. serving a copy of bill under 23rd order of Aug. 1841, 11, note (1). whence arises variety of, 18. the several kinds and distinctions of, 35, 130. the frame and end of the several kinds of, 38. original, 35, 39. not original, 35, 67. in nature of original, 37. original, form of, 49. usually consists of nine parts, 49. 1. Address, 7, 99. 2. Names and descriptions of plaintiffs, 49. 3. Stating part, 39, 45, 49. 4. Allegation of confederacy and combination, 43 — 45, 50. 5. Charging part, 50, 56. 6. Averment as to defect of remedy elsewhere, 50. 7. Interrogating part, 51 — 54, 56. 8. Prayer for relief, and discovery, 51, 54. 9. Prayer for process, 39, 40, 54, 55. Necessary contents of, 45. Mode of allegation, ib. want of sufficient particularity, 45, note (2). mode of putting a specific allegation, 47, note. rule of construction, 48, note. demurrable for vagueness and uncertainty, 48, note (1). original, praying relief, 36, 39. not praying relief, 36, 61. praying relief and discovery distinct from each other, 8, note (1). praying general decree, 36, 39 of interpleader, see Interpleader, and 36, 39, 58, 164. praying writ of certiorari, see Certiorari, and 9, 36, 39, 60. to perpetuate testimony, see Perpetuation, Plea, and 36, 62, 172. for discovery, see Costs, Deeds, Discovery, and 36, 64, 172. of supplement, see Decree, Demurrer, Supplement, and 19, 36, 73, 78, 90, 389. of revivor, see Costs, Creditors, Decree, Demurrer, Re- vivor, and 37, 83, 91, 389. of revivor and supplement, see Demurrer, Hearing, and 37, 85, 97. INDEX. 443 BILL IN CHANCERY— continued. cross, see Cross-bill, Hearing, and 37, 97. of review, see Answer, Demurrer, Hearing, Plea, Review, and 37, 97, 101. in nature of bill of review, see Demurrer, Hearing, Review, and 37, 97, 112. to impeach a decree on the ground of fraud, see Decree, Plea, and 37, 97, 112—114. to suspend the operation of a decree, 37, 97, 1 14. to carry a decree into execution, see Demurrer, Plea, and 37, 97, 115. in nature of bill of revivor, see Distinction, and 38, 86, 97, 117. in nature of bill of supplement, see Distinction, Supplement, and 38, 80, 86, 97, 118. supplemental in nature of bill of revivor, 82. supplemental in nature of bill of review, see Supplemental, and 108. amendment of, generally, 67, 245, 237, 385 — 388. as to prayer, 383, 394. as to parties, 388, 389. as to extent to which liberty may be carried, 383, 388, 389. effect in relation to original bill, 383. after plea or demurrer filed, 394, note (a). upon hearing of demurrer, 254, 255. after allowance of demurrer for want of parties, 208 after allowance of plea to part thereof, not of course, 383, note (z). after liberty to make, given at hearing, 389, 390, 39-1. ueglect of, practice in case of, 390, note (&). where counsel's signature required to, 384, note. See Assignee. Customs. De bene esse. Decree. Delivery. Examination. Execution. New Trial. Persons. Quia timet. 444 INDEX. BONDS, lost, 135. BOUNDARIES, obliterated, 138. C. CANCELLATION OF INSTRUMENTS, 150, 151 CERTIORARI, proceedings upon a bill praying writ of, GO. See Bill. Defence. Plea. CESTUI QUE TRUSTS, see Parties. CHAMPERTY, see Demurrer to Discovery. CHANCERY, see Bill. Jurisdiction. CHANCELLOR, 7. CHATTELS, SPECIFIC, detention of, 139. CHARITY, suit on behalf of, 7. indulgence of Court upon, 42, 43. See Information. Petition. CHOSE IN ACTION, See Parties. COMBINATION, charge of, answer to, 44. as to denial of, by answer, upon a demurrer for multifarious- ness, 209. as to denial of, by answer, after usual order for time, 247, 248. COMMISSIONERS, LORDS, 7. COMMITTEES, of idiots or lunatics, 31. INDEX. 445 COMMITTEES— continued. defend suits brought against them, 32, 124. See Parties. COMMON LAW, see Courts. CONTRACTS, see Agreements. CONVEYANCE, see Plea. COPYHOLD, as to restraining waste by tenant of, 162. COPYRIGHT, as to restraining infringement of, 161, 170. there must be a separate bill against each invader, 210 note. CORPORATIONS, suits by, 25. defence of suits by, 1 24 . aggregate, see Defendant. officers of, made defendants, 329, note (1). COSTS, where awarded against next friend of infant, 27, 28. where infant on attaining age becomes liable to, 28. where awarded against next friend of married woman, 30, note (d). against relator 24, 31, note (I), 120. where bill of revivor for, allowed, 239. on bill of discovery, 237. See Impertinence. Scandal. COUNCIL, see Discovery. CONFIDENCE, see Plea to Discovery. COUNSEL, as to signature of, see Ansaver. Bill. Demurrer. Exceptions. Plea. bill by, to recover fee, demurrer to allowed, 183. as to discovery sought from, see Plea to Discovery. as to costs by, see Impertinence. Scandal. 446 INDEX. COURTS OF COMMON LAW, y limited character of jurisdiction, 3. of equity supply defect in administration of justice by the courts of common law, 4. of inferior jurisdiction, 1/5. CREDITORS, suit by or on behalf of 192, 193, 197. revivor in a suit on behalf of creditors, 96. decree in such a suit, 193. cross-bill by creditor, 100. of a deceased person, have no privity with the debtors to his estate, 185. See Parties. Plea. CRIMINAL PROSECUTIONS, not relieved against, 135. CROSS BILL, where necessary, 97, 100. frame of, 99. of discovery against a lessor of tithes, 98, note (1). considered as a defence, admitting jurisdiction, 99. where now dispensed with, although formerly necessary, 99, note, in chancery to original bill in the exchequer, 97, note (x). See Bill. Creditors. Demurrer. Plea. CROWN, suits on behalf of, 7, 22. where the attorney-general to be made a defendant on behalf of, 32, 123, 199. remedy on behalf of, in cases of nuisance and trespass, 168. See Suits. CUSTOM OR RIGHT, bill to establish, 169, et seq. See Answer. D. DEATH, of party, where abatement caused by,^69, et seq. INDEX. 447 DE BENE ESSE, bill for examination of witnesses, 62, 172, 1/3, 174. affidavit in support of, 174. See Demurrer. DEBTOR, see Creditor. Interpleader. Parties. DECREE, as to review, reversal, and alteration of, 101, et seq. as to correction of formal error in, 109, note (r). obtained by fraud, 112, 113. bill to set aside, see Bill. frame of bill for tbat purpose, 114. when altered on rehearing, and when on bill of review, 278, 281. instance in which extended upon original bill, 117, note, against person having a prior estate of inheritance ; as to its bind- ing those in remainder, 200, 201. bill of revivor subsequently to, 84 . See Assignee. Bill. Creditor. Demurrer. Infant. Plea. Statute of Limitations. Supplement. DEEDS, rectified, or effect of controlled, 151 . See Cancellation. Delivery. Discovery. Execution. Plea. DEFECT IN SUIT, by what circumstances occasioned, b'8, et seq., 81, note, 82. how supplied, 73, 82. DEFENCE TO A BILL, !), 10, 123. with regard to the jurisdiction of the court and the rights and interests of the parties, 12, 13, 123. 448 INDEX. DEFENCE TO A BILL— continued. on what it may be founded with reference to the bill, 1 4 . form of, 14, 15. may be different to different parts of the bill, 15, 128. none required to a bill of certiorari, 1 7. DEFENDANT, how change of interest in relation to, affects a suit, 69, et seq. effect of his death or bankruptcy, 69, et seq. 82, 83. peculiarity in prayer, where a peer or peeress, or lord of parlia- ment, or the attorney-general, is, 40. in what manner a commoner, a peer, or lord of parliament, or a corporation aggregate, to answer, 10. how and to what extent required to answer, 51, 54. See Committees. Corporations. Idiots. Infants. Interrogatories. Jurisdiction. King. Lunatics. Married Women. Queen. DELIVERY, of deeds and writings, 150. bill seeking such relief only need not be accompanied by affidavit, 147. DEMURRER, 14, 123, 127. causes and purposes of, 128. effect of, 15, 128, 254, 255. is upon matter apparent on bill, 128, 129. truth of matters properly charged by bill admitted thereby, 249, 250. form of, 248, 251. must express the several causes of, 253. must define to what it extends, ib. in relation to substance or frame of bill, 243. on ground of defective allegations in bill, 147, 189. must be signed by counsel, 246. where put in without oath, 246. INDEX. DEMURRER— continued. is overruled by answer or by plea, 248, 249, course of practice upon, 15, 254. wbat is decided upon, 129, 130, 180. allowing, 15. 449 effect of overruling, I/. may in some instances be allowed in part, 253. effect of allowing:, on matter of form, and on the merits, with regard to a new bill, 255. not generally permitted after demurrer overruled, 253, note (7), 256. upon overruling, leave in some instances given to put in another less extended, 253, note (7). ore tenus, 256. division of the subject of demurrers, 130. for want of equity, 145, 189. to the jurisdiction, 132, et seq., 145, 148, 261. on ground that another court has the proper jurisdiction, 148, 175, 176, et seq. by one under personal disability, as an infant, a married woman, an idiot, or a lunatic, 177. for want of interest or title in plaintiff, 177 — 184. on ground that plaintiff's title is in litigation, 183. for want of privity between plaintiff and defendant, see Creditor, and see 184—186. for want of interest in the defendant, 186. for want of interest in the case of arbitrator, 187- assignee without title, 187, 189. bankrupt, 187, 188. heir not alleged to be bound, 189. witness, 223. for want of parties, see Parties, 207. for multifariousness, 208 — 210. to bill for part of a matter only to avoid multiplicity of suits. 21 1. to a bill of interpleader, 166, 167- to perpetuate testimony, 172, 182. to examine witness de bene esse, 173, 174. to discovery, causes of, 219, et seq. for want of jurisdiction, 220. . f plaintiff, 220, 222. for want of interest m •< , r , , „„„ ori „ I defendant, 220, 223 for want of privity between plaintiff and defendant, 220, 224- 450 INDEX. DEMURRER— continued. to discovery for want of materiality in the discovery, 220, 226 — 229. on ground that discovery might subject defendant to penalties, as in respect of usury, maintenance, champerty, simony, 229—231. on ground that it might subject defendant to forfeiture of interest, as upon assignment of lease, without lease, &c, 229, 233. on ground that it might subject defendant to something in nature of forfeiture, as in regard to profession of popery : exception in regard to acts of trading by one declared bankrupt, 225. on ground that it might subject defendant to punishment, as upon a criminal prosecution, 229, 230. on ground that it might subject defendant to consequences of a supposed crime, as in respect of forged deeds, 232. on ground that it might subject defendant to imputation of moral turpitude, 233. effect of waiver by plaintiff of penalty or forfeiture, and of agreement to make discovery, in preventing demurrer, 231, 233. on ground that defendant has in conscience a right equal to that claimed by plaintiff, as in case of a purchaser for a valuable consideration without notice, or jointress, 235. on the ground that the discovery relates to the defendant's title, 220, note (1). for want of parties, for want of equity, or because a bill is brought for discovery of part of a matter, will not hold, although it seems a demurrer for multifariousness would lie, 237. to bill of supplement, 239. on ground that the bill might have been amended, or that the new matter is immaterial, 239, 245. to bill of revivor, 238, 239, 336. to bill of revivor and supplement, 243. to cross bill, 240. for want of equity, or to the jurisdiction, will not lie, 240. to a bill of review, 241, 242, 338. against opening the enrolment accompanying plea of decree, 241. on ground of lapse of time, 242. INDEX. 451 DEMURRER— continued. to a bill in nature of bill of review, 242. to a supplemental bill in nature of a bill of review, 242. to bill to carry a decree into execution, 243. to amended bill, on ground that the new matter has arisen sub- sequently to the filing of the original bill, 245. to relief, where it extends to discovery, 214—218. to discovery, and not to relief; consequence thereof, 219. to relief, giving the discovery, 219, note (/>). may fail as to relief, yet protect from the discovery, 219 amendment of, 385, note (a). See Answer. Bill. Counsel. Distinction. Plea. Time. DEVISEE, see Parties. DISCLAIMER, 15, 123, 127, 330, 357,379. form of, 380. effect of, 17, 380. no replication should be filed to, 380. as to decree upon, 380. where inconsistent with answer, 381. necessity of being accompanied by an answer, 380, note (1). See Answer. DISCOVERY, 8, 9, 13, 172. bill for, see Bill. objects of, 64, 65. form of, 64 — 66. no proceedings upon, after a sufficient answer, 17. of deeds and writings, bill for, 66. affidavit in support of unnecessary, 66, 146. right to, and grounds of, 9, 357, 358. when and when not enforced, see Demurrer, and 219, et seq. of matter of scandal not enforced, 359. in aid of the jurisdiction of this and other courts, 219, 220. of the King in council, 264. of defendant's title, not enforced, 220, 224, 225, 226. whether of alienage enforced, 233, 234, 334. G G 2 452 INDEX. DISCOVERY- continued. defence in respect of, although not of relief, 128, 132. as to necessity of disclosing that an agreement or a trust was hy parol, with reference to the Statute of Frauds, 310, 311. as to necessity of disclosing the time when the plaintiff's right existed, with reference to the Statute of Limitations, 312, et seq. in support of an action or in aid of the defence thereto, 226, 227. See Answer. Bankrupt. Costs. Demurrer. Plea. Witness. DISMISSION, of bill, decree or order of, pleaded, 279. DISTINCTION, between demurrer and plea, 347. as to consequences, between an original bill, in the nature of a bill of revivor, and an original bill in the nature of a supplemental bill, 86, 87. DISTRESS, defeated by accident, 138. DOWER, 141, 143—145. DOWRESS, plaintiff, favour shown to, 319, note. E. ECCLESIASTICAL COURT, 292, note, 300. ELECTION, application that plaintiff may elect to proceed either at law or in equity, 292. course of practice upon election being made, ib. ENGLISH BILL, 8. EQUITY, distinguished from positive law, 3. INDEX. 453 EQUITY— continued. want of, see Demurrer. See Courts. Demurrer. Plea. Remedies. EXAMINATION OF WITNESSES, 384. abroad, bill for, 1 72, 227, notes. EJECTMENT, instances of relief afforded upon, 159, 167. EXCEPTIONS, to answer, 361, 376. form and practice upon, 376, 377 '. accompanying demurrer, or plea, where they constitute ad- mission of validity of the latter, and wbere not, 378. must be signed by counsel, 376. of infant or attorney-general not allowed, 376. reference of to a master, 377. to master's report, ib. upon a plea referred, 356, 357. See Master. EXCHEQUER A.ND EXCHEQUER CHAMBER, Courts of, 6, notes. EXCOMMUNICATION, see Persons, Plea. EXECUTION, of another deed upon discovery of contents of one cancelled, bill for, 147. affidavit not required to be annexed tbereto, ib. FEME COVERTE, see Married Woman. Parties. Persons. FEOFFMENT, without livery of seisin, 138. FINE, see Plea. effect of in various instances of legal and of equitable title, 293 — 295. 454 INDEX. FOREIGN COURT, 290, note, 298. FORFEITURE, see Demurrer to Discovery. Discovery. Plea to Discovery. Waste. FORGERY, see Demurrer to Discovery. FRAUD, see Bill to impeach Decree. Decree, 149, et seq. negatived by averments in plea and answer, see Plea. FRAUDS, Statute of, see Statute. G. GUARDIAN, ad litem. for an infant, 124. for an idiot or lunatic, 124. for a person imbecile in mind, 125. H. HEARING. relief not generally given at, if demurrer would have held, 1 30. leave given at, to file a cross-bill, 100, 395. a bill of review, 395. a bill in nature of bill of review, 395. a bill of supplement, 389, 395. See Amendment. Infant. Interrogatories. HEIR, see Answer. Demurrer. Parties. Plea. HUSBAND, see Parties. I. IDIOTS AND LUNATICS, suit on behalf of, 7. by whom instituted, 3 1 INDEX. 455 IDIOTS AND LUNATICS— continued. defence on behalf of, to suit, 124. See Answer. Committees. Demurrer. Information. Persons. Plea. IMBECILITY, see Plaintiff. IMMATERIALITY, see Demurrer. IMPERTINENCE, 57, note (1). in bill, 57. in answer, 3/2, 379. costs, in strictness to be paid by the counsel, 58, 379. INCUMBRANCER, see Answer. INFANT, suit on behalf of, 26. by whom exhibited, 26. where stayed, 29. defence on behalf of, to a suit, 124. his consent to institution of suit on his behalf unnecessary, 3 1 . indulgence granted to, in suits on behalf of, 28, 43, note (i), 67, note (m). by allowing amendment at hearing, 390. where decree improperly affects, 114, 116, note. See Answer. Costs. Demurrer. Next Friend. Persons. Plea. Suits. INFORMATION, 7, 22, 24, 119. on behalf of idiots and lunatics, 3 1 . charities, 121, note, frame of, 121. and bill, 24, 120. frame of, 121. 456 INDEX. INHERITANCE. See Decree. Parties. INJUNCTION, 55, 157, et seq. see the various subjects in this index upon which interposition by may be required. INSOLVENCY, See Defendant. Plaintiff. Plea. INSTRUMENTS lost, see Bonds, and 146. destroyed or suppressed, 135. See Cancellation. Deeds. Delivery. Execution. INTERPLEADER, 164. form of bill of, 59, 166. bill of, by agent, 166, note (r). by debtor, ib. by tenant, ib. as to affidavit and payment of money into court, and injunction in case of, 59, 60, 166, 167. See Bill. Demurrer. Plea. INTERROGATORIES, object of particular interrogatories, 51, 52. as to documents, 52, note (1). orders of Aug. 1841, as to, 52, note (2). in bill must, in order that answer to them may be enforced, be founded on particular charges, 366, note, for examination of witnesses, leave given at hearing to file, 392, 393. defendant examined upon, after his plea overruled, 354. J. JEW, sec Answer. INDEX. 457 JURISDICTION OF CHANCERY, ordinary and extraordinary, 1 . general, 6, 8, 175. in relation to particular and inferior jurisdictions, (i, !). general objects of, 1, 5, 132. where to be exercised, 132. frame of prayer of bill where defendant out of, 43, note (/). when court will proceed in the absence of parties whose rights may be affected by the suit, 34 . See Cross Bill. Demurrer. Judgments. Plea. JOINTURE, without power of distress, 137. JOINTRESS, favour shown to, 324. See Demurrer to Discovery. JUDGMENTS of the Common Law and Ecclesiastical Courts enforced in Equity, 148, 149. See Plea. K. KING, suit on behalf of, 7, 22. suit may not be instituted against, 33, 123. where to be applied to by petition of right, 33, 123. See Crown. Suits. KEEPER, LORD, 7. L. LAW, MUNICIPAL, objects of, 2. LEGATEES, suit by or on behalf of, 194, 197. decree in. 194. 458 INDEX. LEGATEES— continued. of deceased person, uo privity with debtor to his estate, 185. See Parties. LETTER, MISSIVE, 40. LIMITATIONS, see Statute. LITIGATION, see Repeated. LIS PENDENS, see Plea. LORD OF PARLIAMENT, see Defendants. LUNATICS, by whom suit instituted on behalf of, 31. defence on behalf of, to a suit, 124. See Answer. Demurrer. Idiots. Persons. Plea. M. MAHOMETAN, see Answer. MAINTENANCE, see Demurrer to Discovery. MARRIAGE of female plaintiff causes abatement of suit, 69. brokage securities rescinded, 155. MARRIED WOMAN, where she sues jointly with her husband, 29. separately by next friend, 25, 30. her consent to the filing of a bill on her behalf, separately from her husband, necessary, 30. defence by, to a suit, 125, 126. where she must, and where she need not, obtain an order to an- swer separately, 125, 126. where she may be compelled to put in a separate defence, 126. See Demurrer. Next Friend. Plea. INDEX. 459 MASTER, as to his discretion in considering exceptions with reference to materiality of the interrogatories, 377, note. See -Exceptions. Plea. MATERIALITY, see Demurrer. Master. MISJOINDER of an annuitant and of infants by such annuitant as their next friend, 27, note (1). of husband and wife, 30, note (1). See Note on Parties, 399 — 401. MISTAKE, 150, 151. MODUS, see Answer. MONEY, payment of into court, see Interpleader. MORAVIAN, see Answer. MORTGAGE, 153. MULTIFARIOUSNESS, see Combination. Demurrer. Demurrer to Discovery. MULTIPLICITY OF SUITS prevented, 169, 211. See Demurrer. N. NE EXEAT REGNO, 55, 56. NEXT FRIEND of infant, 26, 27. how far interested in event of suit, 28. of married woman, 30. See Costs. NEW TRIAL, bill for, 153. NON-CLAIM, See Plea of Fine. 400 INDEX. NOTICE, 320—324, 350, 354. See Agent. Demurrer. Plea. NUISANCE, 168. 0. OATH, 9, 10. OFFICES, PUBLIC, securities for obtaining, rescinded, 155. OPPRESSION, 154. ORDER FOR TIME, what amounts to compliance with, 24G, note (o), 247. See Time. OUTLAWRY, See Persons. Plea. PAINS. See Demurrer to Discovery. Plea to Discovery. PAPISTS, 234, 333. See Demurrer. Persons. Plea. PARLIAMENT, LORD OF, See Defendant. PARTIES, general rule as to, 190. I. Parties as arranged under the following General Titles : — 1. Of Parties generalhj, 186, 190, 197, 198, 200—202, 206— 208, 398. 2. Of Parties out of the Jurisdiction, 190, 191, 199, 399. 3. Of Misjoinder of Parties as Co-plaintiffs, 399. INDEX. 4G1 PARTIES— continued. 4. Of Parties to Suits of a Public Nature, 402. 5. Of Parties to Suits for au Account, and to Administration Suits, 192, 201, 203—206, 403. 6. Of Parties to Suits pertaining to the relation of Assignor and Assignee, 206, 407. 7. Of Parties to Suits affecting Persons having a Community of Interest, 192, 194—197. 8. Of Parties to Copyright Suits, 418. 9. Of Parties to Suits pertaining to the Relation of Debtor and Creditor, 192, 197, 410, 418. 10. Of Parties to Suits in respect of Actual or Constructive Fraud, 422. 1 1 . Of Parties to Suits pertaining to the relation of Husband and Wife, 423. 12. Of Parties to Suits for Legacies, 194, 412, 423. 13. Of Parties to Suits pertaining to the Relation of Mortgagor and Mortgagee, 424. 14. Of Parties to Partnership Suits, 42". 15. Of Parties to Suits by or against Tenants in Common of Real or Personal Estate, 428. 16. Of Parties to Tithe Suits, 429. 17. Of Parties to Suits pertaining to the Relation of Trustee and Cestui que Trust, 198, 199, 201, 202, 203, 430. 18. Of Parties to Suits between Vendor and Purchaser, 434. II. Parties as arranged in the Alphabetical Order ok their Specific Designations of administrator (limited), 204, 205, 422. administrator (general), 398,404. ought not to be sole plaintiff to a bill for an account, 406. See Personal Representative, annuitants, 403, 421, 423. appointees, 410. assignee of a term, 407. of a legacy, 404. of a defendant before service of subpoena, 407. of a bankrupt, 402, 422. of an insolvent debtor, 420, 424. assignor of a bond, 206. of a judgment, 407. of compensation or purchase-money, 407. 462 INDEX. TARTIES— continued. assignor of deposits on shares, 417. attorney or solicitor general, 32, 123, 196, 199, 402. attorney, 422. author, 418. bank, ib. book-keeper, 186. cestuis que trust, 202, 203, 399, 418, 425, 426, 432, 433, 434. churchwardens, 399. committee of an idiot or lunatic, 32. consignees, 400. co-plaintiff in ejectment, 399. creditors, 192, 193, 197, 201, 410, 417, 418, 419, 425, 427. crews of oyster boats, 429. debtors, 419, 420. devisees, 407. distributees, 198, 403. executor of a deceased personal representative, 400. who has not proved, 404, see Personal Representative, executory devisee, 200, 398. foreign government, 403. government officer, 402. heir, 198, 199, 203, 420, 421, 422, 425, 435. husband, 32, 423. person assuming the character of, 436. impropriator, 429. incumbrancer, 202, 425, 436, see Mortgagee, indorsees of a bill of exchange, 421 . inhabitants, 195, 410. landowner, 429. legal owner, 206. legatee, (residuary,) 398, 403, 412. legatees, 194, 201, 400, 403, 421, 428, 429. lessor, 402. members of a club, 410. mortgagee, 400, 424, 425, 434, 435. mortgagor, 424. newspaper proprietors, 411. next of kin, 196, 411. occupiers, 400. parishioners, 195, 410. INDEX. 4G3 PARTIES— continued. partners, joinder of retired, new, and continuing, 400. partner, 404, 407, 421, 427. payee, 435. personal representative, 204, 205, 399, 401, 404, 405, 406, 420, 421, 422, 423, 425, 426, 427, 430,431,435, see Executors, Administrators, pewholders, 411. purchasers,^406, 426, 434, 435. remainder-man, 200, 201, 398. reversioner, 200. secretary at war, 402. shareholders, 400, 408, 412—416, 417. sheriff, 398. solicitor, 422. sureties, 421, 422. tenants of a manor, 197. tenant in common, 428. tenant for life, 426, 432, 435. tenant by the curtesy, 398. tenant, 202, 398, 436. termor, 407. trustees, 426, 428, 430, 431. vestry clerk, 403. vicar, 401, 429. widow, 435. wife, 423. III. Parties having no Specific Designations. person interested in default of appointment, 398. person not a party to an action, 398, 401. person having no right to relief, 401. party to a bill for an account, 406, 407. person having a very minute interest in an account, 406. person who has possessed part of another's assets, ib. persons against whom there is a joint demand, 419. person joining in a receipt for price of property improperly sold by a trustee, 433. third party to an agreement, 436. claimants under a will, 198, 403. person entitled to a prior estate of inheritance, 201. 464 INDEX. PARTIES— continued. person acquiring a new interest, 201. persons having specific charges, 203. person entitled to an escheat, 199. objection for want of parties by demurrer, 190 — 208. by plea, 325—327. dispensed with by waiving a claim, 207. demurrer for want of parties avoided, ib. such a demurrer ought to show who are proper parties, 208. doctrine of representation, 409, 414. See Amendment. Crown. Demurrer. Plea. PARTITION, 141—145. PARTNERSHIP, See Answer. Plea. PATENT, as to restraining infringement of, 161, 170. there must be a separate bill against each invader, 210, note. PEER OR PEERESS, See Defendant. PENALTIES, See Demurrer to Discovery. Plea to Discovery. Waste. PERPETUATION OF TESTIMONY, bill for, form of, 62. must be accompanied with affidavit, 63, 174. See Bill. Demurrer. Plea. PERSONS, incapable of exhibiting a bill by themselves alone, are infants, mar- ried women, idiots and lunatics, 25. if incapable of acting for themselves, although not bearing either of these characters, by whom a suit may be instituted on behalf of, 32. by whom a suit against such persons may be defended, 124, 125. INDEX. 405 PERSONS— continued. outlawed, excommunicated, convicted of popish recusancy, at- tainted, and aliens, not incapable of exhibiting a bill, 26, notes. PETITION, of right may be referred to the chancellor, 33. in a summary way on abuses of trusts for charitable purposes, authorized by stat. 52 Geo. III. c. 101, 19, 122, note. relief upon, confined to cases of the abuse of clear trusts, 20, 122, note, in relation to charities by the 59 Geo. III. c. 91, 122, note. See Rehearing. PLAINTIFF, how a change of interest in relation to, affects a suit, G9, et seq. suing in his own right, effect of his death, bankruptcy, &c. on the suit, 69, et seq. 79. suing in auter droit, effect of his death, bankruptcy, &c. on the suit, 78, 80. instance of imbecility of mind in, 269, note. See Corporations. Idiots. Infants. King. Lunatics. Married Women. Queen. Parties. PLEA, 15, 123, 127. when the proper mode of defence, 257. where necessary rather than demurrer, see Distinction, and 258. bill taken to be true so far as not contradicted by, 352. nature of, 258, 34 1 . object of, 258. effect of, 15. form of, 342, 352. must define precisely to what part of bill it extends, 342, 352. must contain only one defence, 343. must reduce so much of cause as it covers to a point, ib. may consist of variety of circumstances, 345. must bring the matter which it covers to issue, 348. H H 4GG INDEX. P LE A — con tinned. as to this mode of defence in case of setting up two several bars to same matter, 345. distinct pleas to distinct parts, 345, note (1). multifarious or double, 312, 318, note (z), 343, 344, 345. leave in some instances given to plead double, 344. instances of plea not being a complete defence, 341, note (1), 347—350. may be good in part, and bad in part, 343. overrules demurrer, 381. where overruled by answer, 281, note, 381. to amended bill may be disproved by answer to the original bill, 35 1 . after demurrer overruled, 255. where to be signed by counsel, 352, note. to be filed, 352. in what cases to be put in upon oath, 353. admitted to be true by filing replication, ib. where referred at once to a master, 356. proceedings on, 15, 341, 353. of setting down to be argued, 353, 357. modes of disposing of, by the court, 353. j of allowing, 16, 353. effect | o{ overruling) l7 issue may be taken upon, and evidence produced upon facts pleaded, 16, 354. consequence of defendant succeeding or failing in the proof of facts pleaded, 354. pp , p r saving benefit of to the hearing, ib. I ordering to stand for answer, 355, 356. with liberty to except, 355. ordered to stand for answer with liberty to except, qualified so as to protect defendant from part of discovery sought, 355, 371, 372. overruled cannot be set up by a person made party by bill of revivor, 336, note, amendment of, 327, 385, note (a), division of subject, 258, 259. to jurisdiction, 258, 259, 262, et seq. to person, 258, 259, 265, 269, 275. in bar, 258, 259, 261, 272, 275—277, 319, 325. requisite allegations in, where founded on jurisdiction of an inferior court, 263. INDEX. 4G7 PLEA — continued. to information, that jurisdiction in visitor, 264. of outlawry of plaintiff, 2(55, 356. rules respecting, 265, 266. of excommunication of plaintiff, 266, 356. rules respecting, 266, 267. of plaintiff being papist recusant convict, 267, 273. rules respecting, ib. of attainder and conviction of plaintiff, 268, 273. rules respecting, 268. of alienage of plaintiff, ib. rules respecting, ib. of plaintiff being an infant, a married woman, an idiot or a lunatic, 269. negative, in denial of plaintiff's title, as that he is not heir or administrator as alleged by him, 269, 2/0, 2/2, 273. of title in the defendant without traversing the plaintiff's title, 27, n. of plaintiff's bankruptcy or insolvency, 273. of want of privity between plaintiff and defendant, 275. that defendant is not the person, &c. alleged, ib. negative, that defendant not interested, 276. of defendant's bankruptcy, 330. that defendant not liable to demands of plaintiff, 276. of matters recorded, or as of record, 278. of decree, 278—287, 356. when it may be in bar of a new suit, 279, et seq. See Dismission. of another suit depending, 278, 287, et seq. necessary averments in, 289. effect of plaintiffs setting same down to be argued, ib. reference to a master upon, 288, note, 289. not put in upon oath, 290. course of proceeding upon, 288, note, 290. may be good, although suits not between same parties, 290. may not be good where plaintiff sues in different rights, 291. in a creditor's suit, ib. at common law, or in ecclesiastical court, it seems, not good,292. of a fine and non-claim, 293. where the title is legal, and where equitable, 293 — 295. necessary averments therein, ib. to a bill of review, 296. H H 2 408 TNDEX. PLEA — continued. of a recover}', 29 G. of a judgment, 296—300. upon a bill in respect of rigbts determined thereby, 297. upon a bill to set it aside, 298. of will and probate, 300. of matters in pais, 2/8, 301. of a stated account, 301, 302, 306. form of, 302, 303. of an award, 301, 303. of a release, 301, 304. form of, 305, 306. of a legal instrument controlling or affecting the rights of the par- ties, 301, 307, et seq. will, 307. conveyance, ib. articles of partnership, ib. an agreement to refer to arbitration, ib. of a statute, creating a bar to the plaintiff's demand, 301, 308, et seq. the statute of frauds, 301, 308. form of, 309, et seq. in case of alleged trust, 309. in cases of agreements, 310. the statute of limitations, 301, 312. form of, 313, et seq. to claim of debt, 313, 314. to claim of money received to plaintiff's use, 314. to claim of things executory, 314, 315. to claim of title, 315. to a bill to redeem a mortgage, ib. to a bill of revivor, 316. of plenarty, ib. of public, or general, or of a local or particular statute, 318. of purchase, &c. for valuable consideration without notice, 319, et seq. proper averments in such a plea, 319, et seq., 347, 348. to a bill to perpetuate testimony, 324. for discovery of deeds, ib. for want of parties, 325 — 327. particular cases in which this plea may be avoided, 326. INDEX. 4G ( J PLEA — continued. containing negative averments supported by answer, as in instance of plea containing averments in denial of equitable circum- stances charged and accompanied by answer in support thereof, 281, et seq. 303, note (1), 322, note, 340. effect of such a plea so framed and so supported, 286. effect of a plea of judgment so framed and so supported, 2.99. of stated account so framed and so supported, 302, 303. of an award so framed and so supported, 303. of a release so framed and so supported, 304. of statute of frauds so framed and so supported, 311, 312. of statute of limitations so framed and so supported, 314. to discovery, 327, et seq. where plaintiff states a false case, 329. where plaintiff not interested, ib. where defendant not interested, 330. where discovery sought improper, ib. that it might subject defendant to pains, penalties or for- feitures, 331, et seq. effect of waiver, 334. that it would betray confidence reposed in defendant, as counsel, attorney or arbitrator, 331, 335. that defendant a purchaser for a valuable consideration with- out notice, ib. of statute of limitations, 328, note (1). in aid of a plea to an action for libel, ib. of the discontinuance of an action, ib. as to such a defence to the relief extending to the discovery, 313, 314. to a bill for writ of certiorari, 336. to a bill of revivor, 236, 237. to a bill of supplement, 237. to a cross-bill, 338. to a bill of review, ib. on ground of matter extrinsic to the decree, as lapse of time, 242. to a supplemental bill in nature of a bill of review, 340. to a bill impeaching a decree, 281, 340. to a bill to carry a decree into execution, 34 1 . to an amended bill, that the new matter was subsequent, 337. 470 INDEX. PLEA — continued. See Amendment. Answer. Averments. Demurrer. Distinction. Interrogatories. Time. PLEADING, former practice as to course of, 19, 382. PLEADINGS, order in which treated of, 21. PLENARTY, see Plea. PRAYER, for particular and for general relief, 39 — 43, 54. for special order or provisional writ, 55, 56. See Bill. Jurisdiction. PREROGATIVE, see Suit. PRESERVATION of property pendente lite by this court, 158. PRIVITY, See Agent. Creditors. Demurrer. Legatees. Parties. Plea. PROBATE of will obtained by fraud, 300. of will in a foreign court, 301. See Plea. PUBLIC POLICY, 155, 319, et seq. PURCHASER, see Demurrer. Parties. Plea. Q. QUAKER, see Answer. INDEX. 471 QUEEN, see King. QUEEN CONSORT, 24, 120, 123. a bill may not be exhibited against her, 32. where to be applied to by petition, 33. QUIA TIMET BILL, 171. R. RECORD, where right appears by, not necessary to establish same at law, 171. RECOVERY, see Plea. REFERENCE TO MASTER, see Master. Plea. Suits. REGISTER ACT (Ship), observance of formality required by, neglected, 138. REHEARING, petition of, 109, 111. See Decree. REJOINDER, 384. special, disused, ib. leave given to withdraw and to rejoin de novo, 384, note (m). subpoena to rejoin, abolished, 384, note (1). RELATOR, as to nomination of, and as to liability when named, 23, 24, 31, 120, 121. death of, how suit affected by, 120. See Costs. RELIEF, 8, 9, 13. defence in respect of, though not of discovery, 128, 132. where legal and founded upon discovery of deeds sought by bill, affidavit to be annexed thereto, 66, 146, 147. See Demurrer. Plea. RELEASE, see Plea. pleaded, must be upon good consideration, 305. pleaded, as to execution of, 306, 307. 472 INDEX. REMAINDER, tenant in remainder may appeal from a decree against one having a prior estate of inheritance, 200. See Decree. REMEDIES afforded in equity with reference to such as are attainable in courts of law, 134, et seq. REPEATED LITIGATION restrained, 167. REPLICATION, 382. special, now almost disused, 19, 383. liberty given to withdraw, and to amend bill, 383, note (h), 394, note 0). where allowed to be filed nunc pro tunc, 384, 392, 393, 394. See Disclaimer. Plea. REPRESENTATIVE, PERSONAL, see Parties. Plea Negative. REVIEW, BILL OF, under what circumstances such a bill can and cannot be sustained, 101—106. where such a bill may and may not be filed without leave of the court, 102. where such leave will and will not be granted, 103. rides in relation to, as to proceedings and as to time, 105, 106. frame of, 106. affidavit necessary upon application for leave to file, 102. See Bill. Decree. Plea. Supplemental Bill. REVIEW, BILL IN NATURE OF BILL OF, where the proper course of proceeding is by, 108 — 1 12. may be filed without leave of the court, 1 1 2. frame of, ib. See Bill. REVIVOR, BILL OF, 83, 84. parties to, 92. INDEX. 473 REVIVOR, BILL OF— continued. frame and contents of, 91, 92, 93. course of proceeding upon, 92, 93. practice in relation to, 93. instances in which not necessary, 70, et seq. instances in which court has acted without, 94, note (in). where plaintiff has no title to revive, 336. barred by statute of limitations, 337. See Answer. Bill. Demurrer. Plea. REVIVOR AND SUPPLEMENT, BILL OF, 85, 97. REVIVOR, BILL IN NATURE OF BILL OF, where the course of proceeding is by, 83, note (1), 80, 117. frame of, 117. See Bill. Costs. Decree. RIGHT, see Custom. Record. SCANDAL, 58, note (1). in bill, 58. in answer, 372. nothing relevant considered as, 373. costs in strictness to be paid by counsel, 58, 379. SCIRE FACIAS, subpeena in nature of, 84. SENTENCE, See Judgment. SET-OFF, frame of prayer for a set-off, 40. SETTLEMENTS, 323, 324. SIMONY, See Demurrer to Discovery. SOLICITOR-GENERAL, 23, 120, 123. See Parties. 474 INDEX. SPECIFIC PERFORMANCE, See Agreement. STATING PART, See Bill. STATUTE, See Plea. STATUTE OF FRAUDS, as to effect of insisting on, by plea or by answer, 312. See Agreement. Discovery. Trust. STATUTE OF LIMITATIONS, where it applies, and where the court is influenced by analogy to it, 312,316, 317, 318. as to its application to a suit in equity, or to a decree, 317. allegation to show that the statute of limitations had not run against an equity of redemption, 45, note (2). may be the ground of a demurrer, 251, note (1). See Acknowledgment. Demurrer. Discovery. Plea. Revivor. SUBPCENA, 39. to rejoin, 384. SUITS, instituted on behalf of the Crown, of those who partake of its prerogative, and of those whose rights are under its particular protection, 7. by whom severally instituted, 22. one on behalf of infant referred to a master to ascertain whether for infant's benefit, 29. two on behalf of infant, referred to inquire which most for infant's benefit, ib. new, how they become necessary, 18. See Statute of Limitations. SUPPLEMENT, BILL OF, cases in which filed, 73—82, 100, note, 199, note (1). INDEX. 475 SUPPLEMENT, BILL OF— continued. objects of, 71, et seq., 242, note (1). parties to, 91. frame and contents of, 90, 9 1 . course of proceeding upon, 90. instance in which court proceeded without, 89, note (c). after decree, 79. See Bill. Plea. SUPPLEMENT, BILL IN NATURE OF BILL OF, where course of proceeding is by, 118, 119. frame and contents of, ib. See Bill. SUPPLEMENTAL BILL, IN NATURE OF BILL OF REVIEW, where course of proceeding is by, 108 — 112. affidavit necessary upon application for leave to file, 1 10. frame of, 110—112. See Bill. Demurrer. Plea. SURRENDER of copyhold defective, 138. TENANT, see Copyhold. Interpleader. Parties. TENANT IN TAIL, see Decree. Parties. TERMS, OUTSTANDING, bill to restrain the setting up of, 157. TESTIMONY, see Bill. Perpetuation. TIME, lapse of, as to demurrer founded on, see Bill of Review, 251, to plead, answer or demur, rules in relation to, 246, 247. lapse of, to answer, after plea or demurrer overruled, 378. See Discovery. Statute of Limitations. 476 INDEX. TITHES, 148. See other Titles. TITLE OF PLAINTIFF, instances in which to be established at law before equity will interfere, 66. as to this court's consideration of the legal or equitable, 235, 236. See Answer. Demurrer. Plea. Record. TRADING, ACTS OF, see Demurrer to Discovery. TRESPASS, 160. See Crown. TRIAL, see Bill. New. TRUST, as to necessity and effect of confessing in an answer with reference to the setting up of the statute of frauds, 310, 311. TRUST- FUND, see Parties. TRUSTEES, see Answer. Parties. TRUSTS, 156. U. USURY, see Demurrer to Discovery. V. VERDICT, where bill to set aside, not sustainable, 154, note (H. See Judgment. W. WAIVER, of forfeiture, 334. of penalty, 231. WASTE, legal, 136, 159—164. INDEX. 477 WASTE— continued. equitable, 136, note, 163, 164. pendente lite, 158 — 161. penalty and forfeiture in case of, 162. ought to be waived in bill seeking to restrain, 162. WILL, obtained by fraud, 300. See Plea. WILLS, courts of equity will not decide upon their validity, 146, note. WITNESS, made defendant, discovery by, not compelled, 330. See Demurrer. Examination. Plea. WRITINGS, See Deeds. Delivery. William Stevens, Printer, Bell Yard, Lincoln's Inn.