^^% ^•r^. jbT^A , ^^''^j\ /^-^ «,<,-.*- Q *^^. .y>'^ C'j^ftjr^*^ *-^i*^./" I THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW ^-/■♦-t^ y^^ r' y w^ ^jC4^ ■n j,/trtf^ f . /"'■ i-x i) ii^L^f. c 'IK A LIST OF VALUABLE STANDARD LAW BOOKS; PUBLISHED AND FOR SALE BY COLLINS, KEESE, & Co., Pearl-Street, New- York. BURROW'S REPORTS. Reports of cases argued and determined in the Court of King's Bench under Lord Mansfield, from 1756 to 1772, in five vohimes. By Sir Javies Burroio, Knt., late master of the Crown Office and Bencher of the Inner Temple. Second American from the Fourth London Edition, edited by /. Prescott Hall, Esq. Five volumes bound in two. COWPER'S REPORTS. Reports of cases adjudged in the Court of King's Bench, from 1774 to 1778, in two volumes, by Henry Cowper, Esq. of the Middle Temple, Barrister at Law, with notes of reference to similar cases in subsequent reporters. Second American from the last London Edition, edited by/. Prescott Hall, Esq. Five volumes bound in one, DURNFORD & EAST'S REPORTS. Reports of cases ad- judged in the Court of King's Bench, from 1785 to 1800, by Charles Durnford and Edward Hyde East, Esqrs. of the Temple, - Barristers at Law, in eight volumes. Third American from the Fifth London Edition, corrected with additional references to later English and American authorities. Eight volumes bound in four. ENGLISH COMMON LAW, FIRST SERIES ; containing Bur- row's, Cowper's, and Durnford & East's Reports. Fifteen volumes bound in eleven. This series includes all the Standard English Reports, from 1756 to 1800 inclusive, and contains a body of Law and Precedents that no member of the Bar can do without.. East, Maule and Sel- wyn, and Barnwell and Alderson, which form the connecting link between the above and the Philadelphia Edition of the Common Law Reports, are now being reprinted ; when finished, the whole will make a complete series of the English Common Law Reports from 1756 to the present time. A CRUISE'S DIGEST. A Digest of the Laws of England respecting Real Property ; by William Cruise, Esq., Barrister at Law. Fourth American from the third and last London Edition, revised and corrected by the, author with notes and references by Thomas Huntington, Esq., Counsellor at Law. Six volumes bound in three. HOVENDON ON FRAUDS. A General Treatise on the Princi- ples and Practice by which Courts of Equity are guided as to the Prevention aud Remedial Correction of Fraud with numerous in- cidental notices of Collateral Points, both of Law and Equity. By John Eyken Hnvendon, Esq. of Gray's Inn, Barrister at Law. First American Edition, with notes and references to American Decisions, by Thomas Huntington, Esq. Counsellor at Law. Two volumes bound in one. GOULD'S PLEADING. A Treatise on the Principles of Plead- ing in Civil Actions, by James Gould. Second Edition, revised and corrected by the author. One volume. Extract of a letter from Chief Justice Marshall, dated, Richmond, Dec. 3rd, 1832, I have read the work through with advantage to myself, and with some surprise at finding that a subject which has employed so many pens, should still admit of being pre- sented in a form that may make the book an aumiiBitiun certainly to the Law Student, and indeed to the profession. You have well arranged the matter belonging to the subject, and have succeeded in your design of presenting it, " as a system of consistent and rational principles, adapted with the utmost precision to the administration of justice, according to uniform rules." By showing the reason of the rule plainly, the rule itself becomes more intelligible to the student, and will more certainly adhere to his memory. Allow me to repeat my thanks for the gratification afforded rae by the perusal of your work, and to assure you that I amv/ith very great respect, Your obliged and obedient servant, J. MARSHALL. Extract of a letter from Chief Justice Spencer, dated, ALB.4.NY,Dec. 27th, 1832. If my opinion is entitled to any consideration, it is, that you have given to the pro- fession a work evidently useful ; and, I may add, have supplied what was wanting, — a logical and scientific treatise on a most essential part of legal science. It has always been my opinion, that no man could be an accomplished lawyer unless he was thoroughly imbued with the learning of Pleading. With sentiments of high esteem and respect, Yours sincerely, A. SPENCER. PUER'S JURISPRUDENCE. Outlines of the Constitutional Ju- risprudence of the United States, designed as a Text Book for Lectures and popular use, by William Alexander Duer, L. L. D., President of Columbia College in the city of New-York. One volume, 12mo. COMYN ON CONTRACTS. The Law of Contracts and Pro- misesupon various subjects, and with particular persons, as settled in the action of assumpsit ; in three parts, by Samuel Comyn, Esq. of the Middle Temple, Barrister at Law. Third American from the last London Edition, with notes and references to American authorities, by Thomas Huntington, Esq. Counsellor at Law. One volume. STARKIE ON SLANDER. A Treatise on the Law of Slander, Libel, Scandalum Magnatum, and False Rumours ; including the Rules which regulate Intellectual Communications affecting the character of individuals and the interest of the public. With a description of the Practice and Pleadings in Personal Actions, Informations, Indictments, Attachments for Contempts, &c. con- nected with the Riihjftr-j.. Ry Thamns Starkie, Esq., of Lincoln's- Inn, Barrister at Law. With notes and references to American Decisions. By Thomas Huntington, Esq, Counsellor at Law. One volume. FOUBLANQUE ON EQUITY. A Treatise on Equity, with notes and references, by Johji FotiManque, Esq., Barrister at Law. Fccurth American Edition, with additional notes and refe- rences to American Chancery Decisions. By Anthony Laussat, Esq. of the Philadelphia Bar. One volume. ATKYNS' REPORTS. Reports of cases argued and determined in the High Court of Chancery, in the time of Lord Chancellor Hardwicke, by John Tracey Atkyns, of Lincoln's-Inn, Baron of the Exchequer. Third Edition revised and corrected, with notes and references to former and modern determinations, and to the Re- gister's Books. By Francis William Sanders, Esq. of Lincoln's- Inn. First American from the Third London Edition, in three volumes. MERIVALE'S REPORTS. Reports of cases argued and deter- mined in the High Court of Chancery, from 1815 to 1817. By /. H. Merivale, Esq. of Lincoln's-Inn, Banister at Law. First American from the last London Edition, in three volumes. STARKIE'S REPORTS. Reports of cases determined at Nisi Prius in the Courts of King's Bench and Common Pleas, and on the Circuit from 1814 to 1819. By Thomas Starkie, Esq. of Lin- coln's-Inn, Barrister at Law. First American Edition, in three volumes. REEVE ON DESCENTS. A Treatise on the iaw of Descents in the several United States of America, by Tapping Reeve, late Chief Justice of Connecticut. One volume. CHITTY'S BLACKSTONE ; Commentaries on the Laws of En- gland, in Four Books, with an Analysis of the work. By Sir Wil- ^■am Blackstone, Knt., Justice of the Court of Common Pleas. From the Eighteenth London Edition, with a life of the Author, and notes by Christian, Chitty, Lee, Hovendon, and Ryland ; and references to American Cases, by a member of the New- York Bar. In two vohimes. CHITTY ON BILLS. A Practical Treatise on Bills of Exchange, Banker's Cash Notes, Checks on Bankers, Promissory Notes and Bank Notes. By Joseph Chitty, Esq. of the Middle Temple, Barris- ter at Law. Eighth American from the Eighth London Edition ; greatly enlarged and improved, containing the American notes of for- mer Editions, with an Appendix of Precedents, and the decisions of the English and American Courts, brought down to the year 1834. By P. O. Beebee, Attorney at Law. One volume, 1000 pages. CHITTY'S PLEADINGS. A Treatise on the Parties to Actions, Forms of Actions, and Pleading, with a Collection of Practical Precedents, and notes thereon. By Joseph Chitty, Esq. of the Mid- dle Temple, Barrister at Law. Seventh American from the last London Edition, with notes and additions by John A. Dunlap, Esq. and references to late decisions, hy E. D. Ingraham, Esq. Three volumes. CHITTY'S CRIMINAL LAW. A Practical Treatise on the Criminal Law, comprising the Practice, Pleading, and Evidence which occur in Criminal Prosecutions, with a copious collection of Precedents and comprehensive notes. By Joseph Chitty, Esq. of the Middle Temple, barrister at Law. Third American from the last London Edition, corrected and enlarged by the author. With notes and corrections, by Richard Peters and Thomas Huntington, Esqrs. and references to the latest English and American Deci- sions. By/. C. Perkins, Esq. ConnseWox dXljB.-w. Three volumes. ARCHBOLD'S APPENDIX. A Collection of the Forms and Entries which occur in practice in the Courts of King's Bench and Common Pleas, in Personal Actions and Ejectment. By John Frederick Archbold, of Lincoln's-Inn, Barrister at Law. BINGHAM ON INFANCY. The Law of Infancy and Coverture. By Peregrine Bingham A. B. of the Middle Temple. First Ame- rican from the last London edition, with Notes and References to American Decisions, by a member of the New Hampshire Bar. One volume. KENT'S COMMENTARIES. Commentaries on American Law, by James Kent. Third Edition, revised and corrected by the Au- thor. Four volumes. COLLINS, KEESE, & CO. have constantly on hand all the standard Eng- lish Reports, Digests, and Treatises on Particular Subjects; together with the various Stale Reports and Digests, and a general Eissorlment of Law Books of every description. TREATISE ON THE PLEADINGS IN SUITS IN THE COURT OF CHANCERY, BY ENGLISH BILL. BY JOHN MITFORD, Esq. (LORD REDESDALE.) THE FOURTH EDITION, WITH ADDITIONAL REFERENCES AND NOTES, BY GEORGE JEREMY, Esq. Of Lincoln's Inn, Barrister at Law. THE THIRD AMERICAN EDITION, WITH NOTES AND REFERENCES, BY CHARLES EDWARDS, Esq. COUNSELLOR AT LAW, NEW-YORK. NEW-YORK: JOHN S. VO OR HIES— LAW BOOKSELLER, Corner of Nassau and Cedar streets. 1833. r Entered accordfng to Act of Congress, in the year efghteen hundred" and tiiirty-^peai. By John S. Voorhies, In the Office of the Clerk of the Southern District of New-YorJc» W. Osborn Sf Co., Printers, 85 Chatham-street, MR, JEREMY'S ADDRESS TO THE READER. Lord Redesdale having honored me with that confidence which was necessary to my superin- tending a new edition of the following highly valu- ble work, I proposed to examine the authorities cited in the last edition of it, and to add the refe- rences to such new cases as might appear to me to elucidate the subject, a plan in which his lord- ship was pleased to concur. In the additions ac- cordingly made by way of note, I have endeavor- ed, for the most part, to confine myself to the mere citation of authorities, generally selecting those ot the latest date ; although I have, in some instan- ces where the decisions did not directly sustain or precisely apply to his lordship's propositions, but where, nevertheless, notice of them seemed mate- rial, 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 practical utility of the pre- sent publication will be thereby increased. In re- G'^'^Ol^ [ iv ] ference to the authorities, I have made the dis- tinction, 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 altera- tions in the text, but I have not been instrumental in withdrawing from the profession any part of the work itself And here I may be permitted to re- mark, 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 rendered any material correction, or even qualifi- cation of the general principles explained in it, wholly unnecessary. G. J, 1 New Square, Lincoln's Inn, 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 communica- tion of information, 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 dis- tance of seven years from the first publication, the second edition was prepared for the press, such ob- servation as had occurred to the author in practice, and such notes as he had collected, were the prin- cipal 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 ; and many volumes of reports have been published, and some treatises have appeared, (particularly those by Mr. Fonblanque and Mr. Cooper,) from VI PREFACE. which much assistance might have been derived. During the greater part of this period the author was not only unvviUing to engage in the labor of preparing a new edition, but disabled, by various avocations, from attempting to make any import- ant 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 labor ; and that which is now offered is little more than a re- publication of the second edition, with references to some cases since reported ; a few additional notes of cases not reported ; some corrections 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. PREFACE BY THE AMERICAN EDITOR The adding of matter to this treatise would be like painting refined gold. It is so perfect of it- self, that even a running commentary, and the ad- dition of cases, appear a boldness. However, at the request of the publisher, and with a view to make this edition more widely circulated among the members of the American bar, the latter is done. There cannot be a better proof of the value of Lord Redesdale's treatise, than in the reference to it so often observed in every work on equity prac- tice. If more were wanting, a glance at the tes- timonials we have annexed, would bear out all that might be said in praise. This edition has the English cases carried down to as late a period as the receipt of reports will admit; and the decisions of our own and sister courts will be found interspersed. The present editor is aware of having added many notes which relate to points of practice, ra- ther than to principles of pleading. He did so, thinking the student might be advantaged by it. And he has often thought, that if a work of prac- tice were annexed to this treatise, the same would Vm AMERICAN PREFACE. form a valuable appendage. Mr. Willis' publica- tion could form a basis, and would go a great way in such an union. But, this the writer must leave for others to do. Lord Redesdale has died since Mr. Jeremy's edition of his lordship's work was published. A slight obituary is here presented to the reader.(«) We paused upon the anecdotes : doubting whether we should insert them. A little reflection has caused their being retained. These things show out character more than a funeral oration. (a) John Freeman Mitford was born August 18, 1748, not 1741, as ali the papers have stated ; neither was he, we learn from pretty good authority, intended from the first for the bar. He was a clerk in the Six Clerks' Office before he resolved on devoting himself to the higher branch of the profession j and, in this particular, the early part of his life coincides with that of Sir Samuel Romilly. He entered at Lincoln's Inn, and devoted himself to the Court of Chancery ; and in 1782 he published " A Treatise on Pleadings in suits in the Court of Chancery by English Bill." We are not aware what extent of practice he possessed before the publication of this admirable ■work, but we find him enjoying a first rate practice soon after it appeared ; and, jointly with Lord Eldon, leading in the Court of Chancery. We shall leap over the intervening space, during which he became, successively, King's Counsel, W^elsh Judge, Member of Parliament (1789) and Solicitor General, (1792) and come at once to the prosecution of Home Tooke for high treason in 1794, when Lord Eldon (then Sir John Scott) as Attorney Greneral, and Lord Redesdale (then Sir John Mitford) as Solicitor General, conducted the case for the crown. On this occasion Lord Redesdale dis- tinguished himself not only for his forensic exertions, but by a singular display of sympathetic emotion. Tooke had been making some pretty strong insinuations against the Attorney General's integrity, wliich the party assail- ed thought it necessary to repel. He, accordingly, expatiated at some length on the value of character, and the excellence of his own : " He could endure " any thing but an attack on his good name ; it was the little patrijnony he " bad to leave to his children ; and, with God's help, he would leave it unim- '•' paired." Here his voice faltered, and he burst into tears ; and, to the sur- prise of every one, the Solicitor General became equally affected and wept as profusely as liis friend. " Do you know," said Tooke, in a loud whisper to a by-standerj on finding this bit of pathos likely to tell against him, — " da AMERICAN PREFACE. IX "you know what Mitfortl is crying ubout 1 He is crying to think of the "little patrimony Scott's children are likely to get." We have nothing else to tell about this trial which is probably not well known or much too long to repeat ; neither can we venture to particularize the more celebrated speeches which he made in support of Mr. Pitt's ad- ministration ; a long list of which might easily be found from the debates. He was named Attorney General in the summer of 1799, on Lord Eldon'a being raised to the peerage and named Chief Justice of the Common Pleas. Under Lord Sidmouth's administration (in 1801) he filled the situation of Speaker of the House of Commons, and in 1802, succeeded Lord Clare a3 Chancellor of Ireland, and was elevated to the peerage by >he title which he held at the time of his death. It seems, according to the somewhat apocry- phal authority of Barrington, that his lordship was rather out of his element on his arrival among the wits of the Irish bar ; and a humorous account is given of his efforts, at his first dinner party, to chime in with the tone of the company. " His lordship had obviously got together some of the best bar " remarks (for, of wit he was totally guiltless, if not inapprehensive) to re- " peat to his company as occasion might offer ; and if he could not be hu- " morous, determined, at least, to be entertaining. The first of his lordship's " observations after dinner, was the telling Us that he had been a Welsh "judge, and had found great difficulty in pronouncing two double consonants " which occur in the Welsh proper names. ' After much trial,' continued " his lordship, ' I found that the difficulty was mastered by moving the " ' tongue from one dog-tooth to another.' Toler seemed quite delighted " with this discovery ; and requested to know his lordship's dentist, as he " had lost one of his dog-teeth, and would immediately get another in place " of it. This went off flatly enough — no laugh being gained on either side. " Lord Redesdale's next remark was, — that, when he was a lad, cock-fighting " was the fashion ; and that both ladies and gentlemen went full dressed to " the cock pit, the ladies being in hoops. ' I see now, my lord,' said Toler, " ' it was then that the term cock-a-hoop was invented.' A general laugh " now burst forth, which rather discomposed the learned chancellor. He sat " for awhile silent ; until skating became a subject of conversation, when " his lordship rallied, and with an air of triumph said, that in his boyhood " all danger was avoided ; for, before they began to skate they always put " blown bladders under their arms ; and so, if the ice happened to break, " they were buoyant and saved. ' Ay, my lord.' said Toler, ' that's what we " ' call blatheram-skate{a) in Ireland.' " These do no discredit to Sir Jonah's invention ; but there is a much better, and (if that be material), a well authenticated story of his lordship's inaptitude for joking : A cause was argued in chancery, wherein the plaintitY prayed that the defendant should be restrained from suing him on certain bills of exchange as they were no- thing but kites. " Kites V exclaimed Lord Rcdesdale : — " Kites, Mr. Plunk- " ett 1 Kites never could amount to the value of those securities 1 I don't (a) An Irish vulgar idiom for iionsense. X AMERICAN PREFACE. " understand this statement at all, Mr. Plunkett." " It is not to be expected " that you should, my lord," answered Plunkett : " In England and in Ire- " land, kites are very different things. In England, the wind raises the "kites; but, in Ireland, the kites raise the wind." "I do not feel any " way better informed yet, Mr. Plunkett," said the matter-of-fact chancellor. His lordship continued in the Irish chancellorship about seven years ; his decisions are contained in the Reports of Messrs. Schoales and Lefroy ; a book, we need hardly add, of high authority in the Courts both of England and Ireland. His chef d'oeuvre in legislation is commonly supposed to have been the introduction of the insolvent laws. Hrs lordship died January 23, 1830; and was succeeded in his title and estates by his son. Our readers are aware that he was the brother of the historian of Greece ; a memoir of whom, by Lord Redesdale, appeared in the last edition of the history. Testimonials as to Lord Redesdale and his Work. Lord Redesdale. " The most distinguished pleader of modern times". — Sir Thomas Plumer, in Usborne v. Baker, 2 Maddock's Reports, 379. " I have derived the very greatest assistance from the very excellent treatise " composed by Lord Redesdale." " A standard of accurate judgment and " sound learning." — Beames. " What less could be expected from the author of a law book, which, for " learning and acuteness, and even elegance, (if that word can be .properly ap- '•■ plied to any EngUsh law book,) is perhaps inferior to none in our language." — London Times, August 31, 1826. " The productionof a very diligent and learned man ; not once given to the " world or hastily, but after search and research into every record, and again " given to the world by him." — Lord Eldon, in Bayley v. Adams, 6 Ves. . Jr. 595. " I shall only add two more authorities, those of the late and present lord " chancellors of Ireland. The peculiar litness of referring to the former of " those high authorities, in a question of this nature, will be generally felt. " For no authority, living or dead, could reference be had with more pro- " priety for correct information respecting the principles by which Courts of " Equity are governed, than to one whose knowledge and experience enabled " him fifty years ago to reduce the whole subject to a system, with such uni- " versally acknowledged learning, accuracy and discrimination, as to have been " ever since received by the whole profession as an authoritative standard " and guide. Viventi tibi prcBsentes largimur honcres." — Lord Eldon in Cholmondeley v. Clinton, 2 Jacob & Walker's R. 151. " Great respect is undoubtedly due to the opinion of one whose extent of " erudition in this branch of our jurisprudence is generally so justly ac- " knowledgcd." — Barton. " Lord Redesdale, whose opinion upon a question of equity pleadings is " always esteemed the highest authority." — Chancellor Walworth, in Bogar- dus V. The Rector, &c.. of Trinity Church, MS. 6th August, 1833. CONTENTS. 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. I. - 21 Chap. I. Sect. I. by whom, and against whom, a bill may be exhibited, 21 I. by whom 1. On behalf of the^ crown and of those who ( by the king's attor- partake of its preroga- y ney general or other tive or claim its parti- cular protection - 21 J 2. Onbehalf of bodies^ politic and corporate, and persons who do not partake of the preroga- tive of the crown, and have no claim to its par- ^ticular protection - 24 officer ^by them- selves 21 C Bodies politic and corpo- , , j rate, and all persons of full 1. alone ^ ^^^^ ^^^^ being married wo- tmen, idiots, or lunatics, 24 i 2. under ^i. infants - - 25 Married women the pro- i r, tection | of others I 3. Idiots and lunatics 2. against whom 30 1. Where the rights 'j of the crown, or of those who partake of its pre- I against the king's attorney general, rogative, or claim its i or other proper officer - "^^ particular protection, i are concerned. J all bodies politic and corporate, and all per-, 2. In all other cases J> sons, married women with their husbands, and and lunatics with their committees - 30 r I. Origi- al bills, 33. 34. 36. 51 Chap. I. Sect. II. Of the several kinds and dis- tinctions of bills - 33 Praying relief, 34. 37 fl- A bill praying the decree of the court touching some right claimed by the plaintiff in opposi- Not praying relief, 34.51 II. Bills not original - 33, 34. 55 tion to the defendant 2. A bill of interpleader 3. A certiorari bill ' 1. A bill to perpetuate the testimony witnesses 2. A bill for discovery 1. A supplemental bill - 2. A bill of revivor - - - 3. A bill of revivor and supplement yof > 34. - 35. 35. 1. A cross bill - - - - - 2. A bill of review . . - 3. A bill in nature of a bill of review - 4. A bill to impeach a decree on the ground of fraud - - - III. Bills in the nature of original-^ 5. A bill to suspend or avoid the execu- bills 33. 35. 80 tion of a decree - 6. A bill to carry a decree into execution 7. A bill in nature of a bill of revivor 36. 8. A bill in nature of a supplemental ) q/? 1^ bill - - . - - r • 34.37 34. 48 34. 50 34.51 S4. 53 61. 75 69. 76 70. 80. 35. 80 35.83' 35. 9% 35.92 35. 94 35.95) . 71. 97 /2.9a XII CONTENTS I. Of Billa. Chap. 1.— continued. H Chap. I. Sec. III. Of the frame and end of the<{' several kinds of bills, and of in- i^ formations 36 1. Praying relief 37 ■" I. Origi- nal bills 36 ' 1 . A bill praying the decree of the court touching some right claimed by the plaintiff in opposi- tion to the defendant - - - - 37 2. A bill of interpleader 3. A certiorari bill 48 50 rl. A bill to perpetuate the testimony of wit- ^ .2. Not praying relief 51 ^ nesses 3 U. A nesses bill for discovery II. Bills not original III. Bills in the nature of origined bills 55 rl. A supplemental bill - . - 2. A bill of revivor - - . 3. A bill of revivor and supplement - 53 61.75 69.76 70.80 80 fl. Crossbill 2. Bill of review ----- 3. Bill in nature of a bill of review 4. Bill to impeach a decree on the ground of j fraud IV. Informations 5. Bill to suspend or avoid the execution of a ; 80 83 92 92 94 decree - - . . - 6. Bill to carry a decree into execution - 95 7. Bill in the nature of a bill of revivor 71. 97 90 V8. Bill in nature of a supplemental bill 72. 98 Chap. II. Of defence to bills, - - 102 Chap. II. Sect. I. By whom a suit may be de- fended - 102 1. On behalf of the " crown, or of those who partake of its prerogative, or are under its particular protection - 102 • 2. On behalf of f bodies politic and corporate, and of persons who do not partake of the prero- ■< gative of the crown, and have no claim to its particular pro- tection - - 103 By the king's attorney general, or other proper officer - 102 Bodies politic and corpo<- rate, and all person* 1. By themselves, 103 <( of full age, not being married women, idiots ^ or lunatics - 103 ri. Infants - 103 2. Under protection of, I or jointly with, oth- < 2. Idiots and lunatics 103 ers - - 103 1 \,3. Married women 104 CONTENTS XIU I. Of Bills. Chap, ll.—conlinv,ed. r Chap. II. Sect. II. Of the na- ture of the va- rious modes of I defence to a bill - 106 f Chap. II. Sect. II. Part I. Demurrers 106, 107 r I. to f '• '"relief original jj^ bills 109 ' I. That the subject is not within the ju- risdiction of a court of equi- ty - - 110 .s s lo II. That some oth er court of equity has the proper jurisdic tion - - 110. 151 III.That the plain tiff is not entitled to sue by reason of some personal disability 110. 153 IV. That he has no interest in the sub- ject, or no title to in stitute a suit con- cerning it 110. 154 V. That he has no right to call on the defendant concerning the subject 110. 158 VI. That the de fendant has not that interest in the sub ject which can make him liable to the claims of the plain tiff - - 110. 160 1. Where the principles of law by which the ordinary courts arc gui- ded give a right, but the" powers of those courts are not sufficient to af- ford a complete remedy 111. 112 1. Where no remedy, or no com- plete reme- dy - 112 2. Where remedy at- tempted is defeated by fraud or ac- cident 127 VII. That for some reason, found ed on the substance of the case, the plain- tiff is not entitled to relief - 110. 163 1^ 2. Where the courts of ordi- nary jurisdiction are made instruments of injustice 111. 131 3. Where the principles of law by which the ordinary courts are guided give no right, but upon the princi- ples of universal justice the interference of the judicial power is necessary to pre- vent a wrong, and the posi- tive law is silent 111. 133 4. To remove impediments to the fair decision of a ques- tion in other courts 111: 134 5. To provide for the safety of property in dispute pending a litigation - - 111.135 6. To prevent assertion of doubtful rights in a manner productive of irreparable in- jury - - - - 111. 137 7. To prevent injury to a third person by the doubtful title of others - - - 112. 141 8. To put a bound to vexatious and oppressive litigation 112. 143 9. To compel a discovery 112. 148 10. To preserve testimony 112. 148 XIV CONTENTS. I. OfBills. Chap, U.—eonlinued. II. to dis- covery 1 109.185 VIII. That the bill is deficient to answer the purposes of complete justice 110. 163 IX. That distinct objects are confound- ed in the same bill ^ 110. 181 f I. That the case made by the bill is not such ■ wherein a court of equity assumes a jurisdiction to compel a discovery 185 II. That the plaintiff has no interest in the subject, or no interest which entitles him to call on the defendant for a discovery . - - 185. 181 III. That the defendant has no interest in the subject to entitle the plaintiff to institute a suit against him, even for the purpose of discovery 185. 188 II. to every other kind of bill 201. 206 IV. That there is no privity of title between the plaintiff and defendant, which can give the plaintiff a right to the discovery r - 185.189 V. That the discovery, if obtained, cannot be material - - 185.191 VI: That the situation of the defendant ren- ders it improper for a court of equity to compel a i t discovery 185. 193 1. Bills of revivor and supplemental bills - - - 201 2. Cross bills - 203 3. Bills of review, and bills in nature of bills of review, and bills to impeach a decree, or suspend or avoid its "^ execution - 203 4. Bills to carry a decree into execution ... - 206 5. Bills in the nature of bills of revivor, or of bills of sup- plement ... 206 III. Of the frame of demurrers, and of the manner in which their L validity may be determined 208 CONTENTS. XV I. Of Bills. Chap' U.—eoniinued. fl.tore- fl. That the subject Chap. II Sect. II. Part II. Pleas 106 218 r 1. to lief 220 original bills 220 is not within the jurisdiction of- a court of equity 222 2. That some other court of equity has the proper jurisdic- tion - - 223 3. That the plaintiff is not entitled to sue by reason of< some personal disa- bility - 226 1. That tlie plaintiff is outlawed - 226 2. Excommunicated 227 3. A popish recusant 228 4. Attainted - - 228 5. An alien - - - 229 6. Incapable of institu- ting a suit alone 229 4. That the plaintiff is not the person he pretends to be, or does not sustain the character he as- sumes 230 5. That the plaintiff has no interest in the subject, or no right to institute a suit concerning it 231 6. That he has no right to call on the defendant concerning it - - - . . 234 7. That the defendant is not the person he is al- leged to be, or does not sustain the character he is alleged to bear - . . . 234 8. That the defendant has not that interest in the subject which can make him liable to the de- mands of the plaintiff 9. That for some reason founded on the substance of the case, the plaintiff is not entitled to relief 236 1. Matters of record, or as of record in a' court of equity 236 ■{ 2. Matters of record, or as of record in some court, not a court of equity L 250 235 ' 1. A decree or order - 237 2. Another suit depending 24& fl. Afine 25a 2. A recovery 253 3. A judgment or sentence I 253 XVI CONTENTS 1. Of Bills. Chap". U.— continued. 3. Matters ' 1. A stated account - 259 2. An award - - 260 3. A release - - 261 in pais ^ 4. A will or conveyance 263 258 I. 5. Circumstances bringing a case within the protec- tion 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 bill is deficient to answer the pur- poses of complete justice - - - 280 r 1. That the plaintiff's case is not such as entitles a court of equity to as- sume a jurisdiction to compel a discovery in his favor - - 282 2. That the plaintiff has no interest in the subject, or no interest which entitles him to call on the defend- ant for a discovery - - 285J 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 '1. Because the dis- [^2. to discovery 281"> 4. That the situ- ation of the de- fendant renders covery may sub- ject the defendant to pains and pe- nalties - 284 2. Because it will subject him to a forfeiture - 286 court of equity to compel a dis- covery - 284 3. Because it would it improper for a ^ betray the trust reposed in a coun- sel, attorney, or arbitrator - 288 ^ 4. Because he is a purchaser for a valuable conside- ration , without no- tice of the plain- ly tiff's title - 288 CONTENTS XVll I. Of Bills. Chap. II — continued 2. to bills ^ notorigi- > 1- To bills of revivor and supplemental bills - 289i nal, 288 J 1. Cross bills 290 3. to bills in the nature of^ original bills, 290 4. ofmat- ters rela- tive to pleas in general, 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 supple- mental bills -----_ 293 1. The nature of pleas in general - - > 294 2. Their form - - - . - ^ 30(ji 3. The manner in which they are offered to the court 301 4. The manner in which their validity is decided 301 Chap. II. Sect. II. Part III. 1. The general nature of answers 2. The form of an answer 306 313 1. Answers "S 3. The manner in which the sufficiency of answers is decided and dis- claimers, 106. 306 upon, and their deficiency supplied 4. The nature and form of disclaimers 315 318 2. Demurrers, pleas, answers, and disclaimers, or any two or more of them jointly Chap. III. r^- Of general replications ----.--. p a ions and lieir^ 2. Of special replications, and the subsequent pleadings anciently used consequences - 321 Chap. IV. Of incidents to pleadings ^ in general - 324 3. Of subpoena to rejoin, and rejoinder 319 321 321 323 INTRODUCTION. Of the extraordinary jurisdiction of the Court of Chancery ; and of the manner in which Suits of that jurisdiction are instituted, de- fended, and brought to a decision. The Chancery of England has various offices and jurisdictions. The most important jurisdiction is that which it exercises as a court of equity, usually styled its extraordinary jurisdiction, to distinguish it from those which are termed its ordinary jurisdictions, and are chiefly incident to its ministerial offices, and the privileges of its officers.(l) (1) The court of chancery is a court of general jurisdiction, and its principles and practice in England are, therefore, enforced over every part of the king's dominions to which the royal writs will run, unless the exercise of its authority be rendered unnecessary by the ex- istence of some local judicial power, capable of affording adequate relief. Jeremy's E. Jurisd. Introd- xxii. For the equitable jurisdic- tion of the United States' Courts, see 1 Kent's Com, 291. 2d. edit.; Conklin's Treatise, 8. 51. 121. The act for regulating processes in the courts of the United States, vol. ii. p. 299, provides, that the forms and modes of proceeding iu courts of equity, &c., shall be according to the principles, rules and usages which belong to courts of equity, &c. This act has been generally understood to adopt the principles, rules and usages of the court of chancery of England. Vattier v. Hinde, 7 reters, 252. The circuit courts of the union have chancery jurisdiction in every state ; they have the same chancery powers and the same rules of de- cision ID all the states. United States v. Rowland , 4 Wheat, 108. 20 EXTKAORDO JLRT JOlISDICTIOjr The exercise of this extraordmary jurisdictiQil bj cooTts distinct from thoee usually styled coorts of ccmamon law. to which the ordinary administra- tioQ of justice in cItU soits is intrusted, seems to Tfae caaiicgrv jzriaLcucc z-ives. zj \te cccsaraacc and law? ai the Uaired Scizes is uie sasze ui ali ti^e izaxcs of tiie onica, and lie role e£ ^edoB k the sane eb al. b Ite eaztoae of that; eaxrr? :r -he TJoi^B^ Steiea aie ■aCgoreraed kgr the state -If 1 : i^irese £^ I79S, c&aip. 36, kes pK uri J ed that the maim af f : .: :7 sBfe ^h^ be accorfi^ to Ite friKapiea, rafas aai ~ : : : T — r ^ eoorts of efrify, as eiBlnfiatiBgVBhei firaii -id^ ..wi^ .: ae iiTiiiiiBiri ml, aat acemime to the itaiB practice- ^ z:^ to tis£ peadk x of caarts ef cfaitj b theporeat : - -~- '^ : . i:z &om courts al Inr ; sBh^eet, af eaanc^ Tfated by tfaoae ac^ the eaaiti -i' _i '._..- ; ..^ ..;,. - . .:._ . ::> ti^e. prescribe. Bojffc ▼. Tlie pcwers iod nirisdiction. ot tiie ccnr: -t ciancery of ti*e Stale «f r^^ew-Tork are co-esi£flfiiTe with die pcwer; and junadictka of dw cMBtof chaaeerjiK Eagfaai, wMb the i ■ m |if gty with ^e ihjfcliiwii ie tteae i lj i ri latheitilei •f Tovoat, Ofeiae, yew-Hsm^Am^ MaancfeaKftai, Skaie-Uaai, Cm muLtiLmt , Ohia, ladbiB, IKaaB, KeefiKfcj, TiiieiBiiL, Karfh CmaSma, Gear^ mi AbAmaak, &e janafietim of law aad u| ei tj ■ vetted ia cue tEOvBal; Ooagk, m some ei fkme ibtet, m m JSew-BampAire ami Bhaie-tAmd, cha a cer f powen are ! abjiccti, ar am— ei ia lard cases froai DJTHE COrXT OF CHA2fCE»Y. 21 be. in a sreat degree, a peculiariiy in the jiins|ira- dence erf" the country, bat prerading the wbole s^i^- tern of its judicial polity. Tlie ofisin of these coor^ is inrolred in ^reai obscurity :(1) their aflthoritj has been formerly questic*ied.and the sobjects and limits of their jurisdictioii *were then but [*2] imperfectly ascertained. Time has given them fiill establishment, and their powexs and duiif. : ha^t become nxed and acknowled»ed.^2^ If any doubt bvaad efH^, •f the Eagish lur. seens t» he itwiij tke efaitr povets of Ae TlKpawerto< Ae MBrt ueM —St loiiec M » dbree i ,* JbsiL Rep, ■«»; Kti- Brtwer, 1 FidL JS^l 4S8: caM, Md fw the ih Mf.f.if.t of jaBtice, wiOi the aii «c a far k^ i ah - lire ptiw i 'i i nas . Tte pnadpfes of eyai^ ae Feai^ivvMa here haae digested firoM the acts of tike leselacere «■! the deaaoB of the sepeaK I— il eilhdH^^iie iTiBlj ■edjei^Miel. hn ihm i ai mm BWh i efc t£ afaHj Mw aaier tiK aaprefteadiqg ude ot .Ja Haesy «a . g fa ify m fiaiaijlh—ii^ hr AathoaT Laaset. jaar^ SraaeK ac Lav, iSdL 1 KmFs Cbm. di ediL ISS, aate d. (1) See CKKcK"* Arwi IfaaHaaaK, ckifk 1 ; fiartea y StaOL . i» Jertwty's Bqm^ Jmi iwJjrfim ; 1 Aatten* Ch a rfg .BbC S«. •ad STik (£^fe^ eiiL) ; Q — i nii^ Amnr, v«L SS. fi. »2 ; ^; 1 Avr. Anacwi. Aad fcr sketehes aad iialljaa ef «he uaeir ef rhwiiii.i af •ar aaa coaatnr. see GriJBSu Lmm tbtgittgr: Hb/wa"* Jkiin-. Ja> h'%im.tiim ; I SaHii\f .&!«<. ^ .Vnr-rinr, .Jjyrarfr. ;3::9 ; 1 J(«bk Ck. JL Pr^^KV ; 4 Ktmi's Om. fiSd edkO 1^ 1^ ; I & ? roL £f C?" At th^ day. jastioe is aJaaaij^mi aa a oaast «f a ^ afc y apaa as &xed aad ceitaaa friac^lcB as ia a oaart «f law. 1 Km£* ChaL -tM, Si edtc Aacaeat a*! aaiiici |«ac6ce oa^^alas the ka- at the 22 EXTRAORDINARY JURISDICTION on the extent of their duties has occurred of late years, it has principally arisen from the liberality 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 grounds, and the defect in the powers of the courts of common law arising from their mode of pro- ceeding, should not be fully considered, in all their consequences.(a) In the construction of every system of laws, the principles of natural justice have been first consi- dered; 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 to answer all the purposes of justice has ever been found unequal to the subject ; and there- fore, in all countries, those to whom the administra- (a) See Lord Hardwicke's judgment in Wortlcy and Birkhead, 2 Ves. SnS, 574. And see 6 Ves. 39. OF THE COURT OF CHANCERY. 23 tionof the laws has been intrusted, have been com- pelled to have recourse to natural principles, to as- sist them in the interpretation and application of positive law, and to supply its defects ; and this resort to natural principles has been termed judging ac- cording to equity. Hence a distinction has arisen in jurisprudence between positive law and equity; but the administration of both has in most countries been left, at least in their superior courts, to the same tribunal. In prescribing forms of proceed- ing in courts of justice, human foresight has also been defective; and therefore it has been com- monly 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 policy somewhat different has pre- vailed. The courts established for the ordinary administration of justice, usually styled courts of common law, have, as in other countries, recourse to principles of equity in the interpretation and ap- plication of the positive law : but they are bound to established forms of proceedmg ; 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 applica- tion, sometimes imcompatible with the principles, of natural and universal justice, or not equal to the full application of those principles ; and the *modes of proceeding in those courts, though [*4j admirably calculated for the ordinary piu'po- 124 EXTRAORDINARY JUR^DICTION ses 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 re- sult of increase of commerce, of riches, and of lux- ury, and the consequent variety in the necessities, the ingenuity, and the craft of mankind. Their simplicity, clearness, and precision, are highly ad- vantageous 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. Early therefore in the history of our jurispru- dence 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 jurisdiction: assuming the power of enfor- cing the principles upon which the ordinary courts also decide when the powers of those courts, or their modes of proceeding, are insufficient for the purpose ; of preventing those principles, when enforced by the ordinary courts, from becoming (contrary to the purpose of their original establish- ment) instruments of injustice : and of deciding on principles of universal justice, where the interfer- ence of a court of judicature is necessary to pre- vent a wrong, and the positive law, as in the case of trusts, is silent. (6) (1) The courts of equity (6) Principles of decision thus grounds of successive decisions, are adopted by the courts *>f equity, when considered by those courts as rules to fully established and made the be observed with as much strictness (1) Quick V. Stuyvesant, 2 Paige's C. R. 84. The interference of a court of chancery is grounded upon the idea of its not being against- conscieoce. Seymour v. Delancy, 3 Cow, 445. OF THE COURT OF GIIANCERY. 25 *also administer to the ends of justice, by re- [*5] moving impediments to the fair decision of a question 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 v^hose care it is by law intrust- ed, or by persons having immediate but partial inte- rests ; 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 prevent- ing unnecessary multiplicity of suits : and, with- out pronouncing any judgment on the subject, by compelling a discovery, or procuring evidence, which may enable other courts to give their judg- ment; and by preserving testimony when in dan- ger of being lost before the matter to which it re- lates can be made the subject of judicial investi- gation(c)(l). as positive law. See the judgment of curately to describe the jurisdiction Sir Joseph Jekyll, quoted by Sir Tho- of our courts of equity. This gene- mas Clarke, in Blackst. Rep. 152. ral description, though imperfect, and Pluraque quse usu fori comprobata, in some respects inaccurate, is ofTer- denique juris scripti auctoritatem cd only for the purpose of elucidating propter vctustatem obtinuerunt. Cic. the following treatise, in the course de invent, lib. 2. c. 22. Heinecc. do of which the subject must be in many edict, praet. lib. 1, c. 6. p. 129. points more fully considered, (e) It is not a very easy task ac- (1) Professor Amos, in his lecture upon " What are Courts of Equity .-"' refers, with praise, to the following illustration : which is to be found in the Encyclopedia Americana. " In England and America, " courts of common law proceed by certain prescribed forms, and give " a general judgment for or against the defendant. They entertain ju- " risdiction only in certain actions, and give remedies according to the " particular exigency of such actions. But there are many cases in "which a simple judgment for either party, without qualifications and 4 2G EXTRAORDINARY JURISDICTION This establishment, as before observed, has ob- tained throughout the system of our judicial polity ; most of the branches of that system having their " conditions and particular arrang-ement? , will not do entire justice, ex " cequo et bono, to either party. Some modifications of the rights of " both parties are required ; some restraints on one side or the other; " and some peculiar adjustments, eitlier present or future, temporary or " perpetual. Now, in all these cases, courts of common law hare no •' method of proceeding' which can accomplish such objects. Their " forms of actions and judgment are not adapted to them. The proper " remedy cannot be found or cannot be administered to the full extent " of the relative rights of all parties. Such prescribed forms of action " are not confined to our law. They were known in the civil law ; " and the party could apply them only to their original purposes. In " other cases, he had a special remedy. In such cases, where the " courts of common law cannot grant the proper remedy or relief, the " law of England and tho United States (in those states where equity " is administered) authorizes an application to the courts of equity or " chancery, which are not confined or limited in their modes of relief " by such narrow regulations, but which grant relief to all parties, in " cases where they have rights ex cequo et bono, and modify and fashion " that relief according to circumstances. The most general description *' cf a court of equity is, that it has jurisdiction in cases where a plain, " adequate and complete remedy cannot be had at law — that is, in the " common law courts. The remedy must be plain ; for if it be doubt- " ful and obscure at law, equity will assert a jurisdiction. So, it must " be adequate at law ; for if it fall shori of what the party is entitled "to, that founds a jurisdiction in equity. And it must be complete — " that is, it must attain its full end at law ; it must reach the whole mis- " chief, and secure the whole right of the party, now and for the future ; " — otherwise equity will interpose and give relief. The jurisdiction of *' a court of equity is sometimes ioncurrent with that of courts of law ; " and sometimes it is exclusive. It exercises concurrent jurisdiction in "cases where the rights are purely of a legal nature, but where other " and more efiicient aid is required than a court of law can afford, to " meet the difBculties of the case and insure full redress. In some of " these cases, courts of law formerly refused all redress, but now will "grant it. But the jurisdiction having been onqp justly acquired, at " a time when there was no such redress at law, it is not now relin- " quished." OF THE COURT OF CHANCERY. 27 ^peculiar courts of equity(^), and the court (*6) of chancery assuming a general jurisdiction, which extends to cases not within the bounds or beyond the powers of other jurisdictions(c). (d) Thus the court of exchequer, latine, of London, of the Cinque established for the particular purpose Ports, and other particular jurisdic- of enforcing the payment of debts tions, have also their peculiar courts due to the king, and incidentally ad- of equity. ministering justice to the debtors and (e) The court of equity in the ex- accountants to the crown, has its chequer chamber is also frequently own peculiar court of equity. The considered as a court of general ju- courts of Wales, of the Counties Pa- risdiction, and in effect it is so, in An examination of the Eng-lish ancient chancery records will show many cases which appear purely of legal cognizance. They are in the form of petitions ; and appear to have been presented in consequence of assaults and trespasses, and a variety of outrages which were cog- Dizable at common law, but for which the parly complaining was unable to obtain redress, in consequence of the maintenance or protection af- forded to his adversary by some powerful baron, or by the sheriff or other officer of the county in which they occurred. See Preface to the Record Commission. Equity jurisdiction is simply arranged by ancient writers under three heads : Fraud ; Trust ; Accident. And by Maddox under six heads : 1. Accident; 2. Account; 3. Fraud ; 4. Infants ; 5, Specific perform- ance ; 6. Trusts. And see an illustration of these heads, by Chitty, in his edition of Blackst. Com. book 3, ch. 27. When there has been much and protracted litigation, and the case is on the eve of a termination, and the question of equitable jurisdictioa is for the first time made, it is with great reluctance that the court will dismiss a bill. Underhill v. Van Cortland, 2 J. C. R. 369 ; Wilson V. Cheshire, 1 Dessau, 233 ; Farley v. Farley, lb. 506. In a case in which there is obviously no ground of jurisdiction, the court might be induced to interpose even at the last moment ; but they will not be astute to discover such an objection at the very moment when all the rights of the parties are about to be finally determined and put at rest for ever. Wilson v. Cheshire, supra. But when tho^uestion is made at the commencement of the suit, and urged at all its various stages, the reluctance is much diminished ; for, under such circumstances, it is the duty of the complainant thoroughly to investigate the subject and actually to ascertain the grounds upon which he stands. Farley v. Farley, supra. 35 EXTRAORDINARY JURISDICTION 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 great degree, a consequence of that jealous anxiety with which the principles and forms estabhshed by the common law have been preserved in the 1*7] ordinary *courts as the bulwarks of free- dom, and of the absolute necessity of prevent- ing the strict adherence to those principles and forms from becoming intolerable. A suit to the extraordinary jurisdiction of the court of chancery, on behalf of a subject merely, is commenced by preferring a bill, in the nature of a petition(/), to the lord chancellor, lord keeper, or lords commissioners for the custody of the great seal(^); or to the king himself in his court of chancery, in case the person holding the seal is a a great degree, though in principle it probably had the effect of preventing is not. For its jurisdiction is in that abuse of power which is too often strictness confined to suits of the the consequence of the single juris- crown, and of debtors and account- diction of one supreme court, ants to the crown ; and a suggestion, (/) 9 Edw. IV. 41. Prac. Reg. the truth of which the court^will not p. 57, Wyatt's edit. This book, and permit to be disputed, " that its suitor other books of practice, are only cited is a debtor and accountant to the where no other authority occurred, or crown," is still used to give it more where they might lead the reader to extensive jurisdiction. This practice, further information on the subject, as well as a similar fiction used to The Practical Register is mentioned give general jurisdiction to the com- by Lord Hardwicke, 2 Atk. 22, as a mon law court in the exchequer, and book, though not of authority, yet the fiction used to give jurisdiction better collected than most of the kind. to the court of king~'s bench in a va- (§•) As to the authority of a lord- riety of civil suits of which it has not keeper, see 5 Eliz. c. 18 ; and as to strictly cognizance, may appear the that of lords commissioners, see 1 W. objects of censure; but they have &Mc. 21. j£= OF THE COURT OF CHANCERY. 29 party (/^), or the seal is in the king's hands(«) (1). But if the suit is instituted on behalf of the crown (fe), or of those who partake of its prerogative(Z), or whose rights are under its particular protection as the objects of a public charity(w), the matter of complaint is oftered to the court by way of infor- mation, given by the proper officer, and not by way of petition(M) (2). *Except in some few [*8] instances(o) (3), bills and informations have h) 4 Yin. Ab. 385. L. Leg. (m) 1 Ca. in Cha. 158. Anon. \. in Ch. 44. 255. 258. Jud. Auth. 3 Atk. 276. Sec 1 Swanst. 292. M. R. 182. 2 Prax. Aim. Cur. (n) On the subject of informa- Canc. 463. Ld. Chan. Jefferies tions, see chap. 1, sect. 3. (5) against Witherly. (o) There arc some bills in early (i) 1 West. Symb. Cha. 194. b. time in the French language. See (Ar) 1 Roll. Ab. 373. Att. Gen. Calendarsof Proceed, in Chan, print- V, Vernon, 1 Vern. 277. 370. ed under anthority of Commiss. on {I) As to idiots and lunatics, see Public Records, 1827. chap. 1, sect. 1. (4) (1) See 3 Black. Com. 442. In the court of chancery of the State of New-York, all bills and petitioBs are to be addressed " to the chan- " cellor of the State of New- York," without the addition of his name, or any other title or designation. Rule 10. And when the chancellor is a party, or interested in the event of a suit in chancery, the bill is to be addressed to and filed before some one of the vice-chancellors, who is to proceed thereon as a court of chancery, and possess all the powers of such a court in relation to the subject matter of such bill. And ap- peals from any order or decree of such vice-chancellor, is to be made immediately to the court for the correction of errors, in the same man- ner as if such order or decree had been made by the chancellor. 2 Revised Stat. JV. Y. 169. J 7 ; and see the JVashington Insurance Com- pany V. Price, 1 Hopk. C. R. 1, (determined before the Revised Sta- tutes went into operation.) (2) It is the duty of the attorney general of the state to prosecute and defend all suits, in tlie event of which (he people of the State of New-York are concerned. 1 Revised Statutes, 179. J 1. (3) From the commencement of the reign of King Henry the Sixth, the use of the English language, which had been partially introduced in the time of his predecessor, became generally adopted. (4) Page 21. (5) Page 29. 30 EXTRAORDINARY JURISDICTION been always in the English language ; and a suit pre- ferred in this manner in the court of chancery has been therefore commonly termed a suit hy English bill, by way of distinction from the proceedings in suits within the ordinary jurisdiction of the court as a court of common law, which, till the statute of the 4 Geo. II. c. 26, were entered and enrolled, more anciently in the French or Norman tongue, and afterwards in the Latin, in the same manner as the pleadings in the other courts of common law. Every bill must have for its object one or more of the grounds upon which the jurisdiction of the court is founded ; and as that jurisdiction some- times extends to decide on the subject, and in some cases is only ancillary to the decision of another court, or a future suit, the bill may either com- plain of some injury which the person exhibiting it suffers, and pray relief according to the injury ; or, without praying relief, may seek a discovery of matter necessary to support or defend another suit ; or, although 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, todefend himself against the injury whenever it shall be attempted to be [*9] committed. As the court *of chancery has general jurisdiction in matters of equity not within the bounds or beyond the powers of inferior jurisdictions,(^) it assumes a control over those ju- (p) The court of equity in the ticular, is not an inferior jurisdic- exchequcr chamber, though a par- tion. OF THE COURT OF CHANCERY. 31 risdictions, 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- tiorari, generally requires the answer of the de- fendant, or party complained of, upon oath. An answer is thus required, in the case of a bill seek- ing the decree 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 defend- ant, and of the grounds on which they are contro- verted ; and a discovery 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 as- sistance of the court to protect the plaintiff against a future injury, the answer of the defendant upon oath may be required to obtain an admission of the plaintiff's title, and a discovery of the claims of the defendant, and of the grounds on which those claims are intended to be supported. When the sole object of a bill is a discovery *of mat- [*!')] ter necessary to support or defend another suit, the oath of the defendant is required to com- pel that discovery. The plaintiff' may, if he thinks proper, dispense with this ceremony, by consenting to or obtaining an order of the court for the purpose; 33 EXTRAORDINARY JURISDICTION and this is frequently done for the convenience of parties where a discovery on oath happens not to be necessary. And where the defendant is enti- tled 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 honor of the defendant(^), and in the latter, under the common seal(r) (1). To the bill thus preferred, unless the sole object 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. As the [*11] bill calls *upon the defendant to answer the (q) Ord. in Cha. Ed. Bea. 105. and so it appears does a moravian, 261. 18 Ves. 470. 1 Ves. 470. I see 22 Geo. II. c. 30. And infidels Vcs. and B. 187. 1 Jac. and W. 526. arc pcrmittted to swear according to And see Robinson v. Lord Eokeby, the forms of the religion which they 8 Ves. 601, as to Irish peers. profess, provided such forms consti- (r) It may be observed, that al- tuto an appeal to the Supreme Being, though in ordinary cases the answer sec the well known cases of Omy- is required upon oath, other sane- chund v. Barker, 1 Atk. 21. S. C. tions are in certain instances allowed 2 £q. Ca. Abr. 397, and Ramkissen- in practice ; a quaker puts in his an- seat v. Barker, 1 Atk. 51 : a jew swer upon his solemn affirmation and makes oath upon the pentateuch, declaration, see 7 W. & M. c. 34. 8 Rohcley v. Langston, 2 Keble, 314, Geo. 1. c. 6. Ord. in Cha. Ed. Bea. Anon. 1 Vern. 263 : and a mahome- 247. Woodx. Story, 1 P. Wms. 781. tan upon the koran. Stra. 1104.(2) Marsh v. Robinson, 2 Anstr. 479, (1) A complainant can call upon individual members of a corpora- tion, or their officers or aeents, to answer not only with the rest under the common seal, but, individually, upon oath : yet, in such a case, the defendants, whose discovery under oath is sought, are to be named in the bill as defendants. And the former as well as the present officers may be made defendants. Anonymous, 1 Kern. 117; Brumley v. West Chester J\lanuf. Society, 1 J. C. R. 366 ; Dumnier v. Corporation of Chippenham, 14 Fe?. Jr., 24.'"); 2 Revised Statutes, JST. Y. 464, J 43 ; lb. 465, } 52. (2) See 2 Revised Stalides, JY. Y. 487, ^ 82, and the sections which follow ; 18 Rule of JY. Y, Chancery. or THE COURT OF CHANCERY. 35 several charges contained in it, he must do so, unless ho can dispute the right of the plaintitFto compel such an answer, either from some impropriety in requiring the discovery sought by the bill, or from some jobjection to the proceeding to which the dis- covery is proposed to be assistant ; or, unless by disclaiming all right to the matters in question by the bill he shows a further answer for him to be unnecessary (5). A defendant to a bill may have an interest to 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 necessary to substantiate the suit, that there may be proper parties to it (1). In such cases, his answer may often be mere matter of form, submit- ting the subject of the suit to the judgment of the court ; and, if any act should be required to be done by him, desiring only to be indemnified by the de- cree of the court. The grounds on which defence may be made to a bill, either by answer, or by disputing the right of the plaintiff to compel the answer which the bill requires, are various. The subject of the suit may not be within the jurisdiction of a court of equity : or some other court of equity may have the proper jurisdiction ; the plaintff may not be entitled to sue by reason of some personal disabi- («) In some cases a defendant question. See Chap. II. sect. II. may be compelled to answer, though part 1.(1) he has no interest in the matters in (I) Bailey v. Inglee, 2 Paige's C. R. 278. (2) Page 159. 5 34 EXTRAORDINARY JURISDICTION [*12] lity: if he has no such ^disabiUty he raaj not be the person he pretends to be : he may have no interest in the subject : or if he has an inte- rest, he may have no right to call upon the defend- ant 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 un- der 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 de- mands 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 con- cerning the subject, being the constant aim of courts of equity. Some of these grounds may ex- tend only to entitle the defendant to dispute the plaintiff's claim to the relief prayed by the bill, and may not be sufficient to protect him from making the discovery sought by it ; and where there is no ground for disputing the right of the OF THE COURT OF CHANCERS. 35 plaintiff to the relief prayed, or if no relief is prayed, yet if there is any ^impropriety [*13] 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. The defence which may be made on these seve- ral 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 proceed ; or it may be founded on matter not apparent 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 term- 36 EXTRAORDINARY JURISDICTION ed a demurrer ; if on the foundation of new matter offered, it demands the judgment of the court [*14] whether the *defendant shall be compel- led to answer further, it assumes a different form, and is termed a plea ; if it submits to answer generally the charges in the bill, demanding the judgment of the court on the whole case made on both sides, it is offered in a shape still different, and is simply called an answer. If the defendant disclaims all interest in the matters in question by the bill, his answer to the complaint made is again varied in form, and is termed a disclaimer. And all these several forms of defence, and dis- claimer, or any of them, may be used together, if applying to separate and distinct parts of the bill. A demurrer, being founded on the bill itself, ne- cessarily admits the truth of the facts contained in the bill, or in the part of the bill to which it ex- tends ; 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 favorable to the defend- ant, puts an end to so much of the suit as the de- murrer extends to. A demurrer, if allowed, con- sequently prevents any further proceeding(/). A (t) An amendment of a bill has 300 -,{1) and it seems most proper, if been permitted by a court of equity the ground of demurrer may be remo- after a demurrer to the whole bill had ved by amendment, to make a special been allowed ; but this seems not to order, adapted to the circumstances of {lave been strictly regular ; 2 P. Wms. the case. See chap. 2. sect. 2. part l.(2) (1) No doubt it was irregular ; see note to this case in Cox's edit, of P. Wms. And yet it is singular such practice should hare been supported in a case, where a master of tUe rolls was the defend-, ant deniurriog. (2) Page 106. OF THE COURT OF CHANCERY. 37 plea is also intended to prevent further proceed- ing 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 pur- poses *of the plea, the truth of the facts [*15] contained in the bill, so far as they are not controverted by facts stated in the plea. Upon the sufficiency of this defence the court will also give immediate judgment, supposing the facts sta- ted in it to be true : but the judgment, if favorable to the defendant, is not definitive ; for the truth of the plea may be denied by the plaintiff by a repli- cation, and the parties may then proceed to ex- amine witnesses, the one to prove and the other to disprove the facts stated in the plea. The repli- cation in this case concludes the pleadings(M) ; though, if the truth of the plea shall not be sup- ported, further proceedings may be had, which will be noticed in a subsequent page(a:). 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 questions 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 (tt) See Chap. 111.(1) (:i:) See Chap. II. sect. 2. part 2.(2) (I) Page 321. (2) Page 218. 38 EXTRAORDINARY JURISDICTION willing to admit, no further pleading is necessary ; the answer is considered as true, and the court will decide upon it. But if the answer does not admit all the facts in the bill material to the plaintiff's case, or states any fact which the plaintiff is not disposed to admit, the truth of the answer, [*16] or of any *part of it, may be denied, and the sufficiency of the bill to ground the plaintiff's title to the relief he prays may be as- serted, by a replication, which in this case also concludes the pleadings according to the pre- sent(t/) practice of the court. If a demurrer or plea is overruled upon argument the defendant must make a new defence(l). This he cannot do by a second demurrer of the same extent after one demurrer has been overruled ; for although by a standing order of the court a cause of de- murrer must be set forth in the pleading, yet if that is overruled, any other cause appearing on the bill may be offered on argument of the demur- rer, and, if valid will be allowed ; the rule of the court affecting only the costs. But after a de- murrer has been overruled, new defence may be made by a demurrer less extended, or by plea, or answer ; and after a plea has been overruled, de- fence may be made by demurrer, by a new plea, (y) See Chap. 111.(2) (1) See Goodrich v. Pendleton, 4 J. C. R. 551 ; also, Murray v. Coster, 4 Cow. Rep. 617, where the question as to setting up the sanne matter which has been used in a pleading overruled, is scrutinized; and, Townsend v. Tawnsend, 2 Paige's C. R. 413. (2) Page 321, or THE COURT OF CHANCERY. 39 or by an answer : and the proceedings upon the new defence will be the same as if it had been originally made(2^). A disclaimer, neither assert- ing any fact, nor denying any right sought by the bill, admits of no further pleading(a). If the sole object of the suit is to obtain a discovery, there can be no proceeding beyond an answer by which the discovery is obtained. A suit which only seeks to remove a cause from an inferior court of equity does not require any defence, and consequently there can be no pleading beyond the bill. *Suits thus instituted are sometimes im- [*17] perfect in their frame, or become so by ac- cident before their end has been obtained ; and the interests in the property in litigation may be changed pending the suit in various ways. To supply the defects arising from any such circum- stances new suits may become necessary, to add to, or continue, or obtain the benefit of, the origi- nal 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 controvert- ed, suspended, or avoided by a second suit ; and sometimes a second suit becomes necessary to carry into execution the judgment of the court. Suits instituted for any of these purposes are also (z) See Chap. II. sect. 2. part 1.(1) (a) See Chap. II. sect 2. part 3.(3) (1) Page 106. (2) Page 306. 40 EXTRAORDINARY JURISDICTION commenced by bill ; and hence arises a variety of distinctions of the kinds of bills necessary to an- swer the several purposes of instituting an origi- nal suit, of adding to, continuing, or obtaining, the benefit of a suit thus instituted, of instituting a cross-suit, and of impugning the judgment of the court on a suit brought to a decision, or of carry- ing a judgment into execution ; and on all the dif- ferent kinds of bills there may be the same plead- ings, as on a bill used for instituting an original suit. It frequently happens, that pending a suit the parties discover some error or defect in some of the pleadings, and if this can be rectified by amendment of the pleading, the court vs^ill [*18] in many cases permit *it. This indulgence is most extensive in the case of 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 errors, by special replications. But this tending to long and intricate pleading, the special replica- tion requiring a rejoinder, in which the defendant might in like manner supply defects in his answer, and to which the plaintiff might surrejoin, the spe- cial 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 de- fendant to rectify an error or supply a defect in OF THE COURT OF CHANCERY. 41 his answer, either by amendment, or by a further answer(l). Summary jurisdiction has been given by au- thority of Parliament to courts of equity in cer- tain cases, arising incidentally from the provisions of acts of ParHament, both public and private, without requiring the ordinary proceeding by bill or information, and substituting a simple petition to the court ; the assistance of the court being re- quired only to provide for the due execution of tho provisions of such acts. But by an act of the 52 of Geo. III. c. 101, a sum- mary jurisdiction, on petition only, has been given in the case of abuses of trusts created for charita- ble purposes, which before were the subjects of information by the King's Attorney General, to which the persons of whom complaint was made might make ^^defence, according to [*19] the nature of the case stated in the informa- tion, 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 proper- ly applied. (1) Dupote V. Massey, Coxe's Dig. 147. The reason why the practice of special replications, and the accumulation of specialties apon them, is not now allowed in equity, may be this : the great object of special pleading at common law is to keep the law and fact di&lioct, they being to be tried by separate tribunals; but, in equity, the whole question comes before the court for ite decision both on the pleadings aad the proofs. Lube, 371. 6 42* EXTRAORDINARY JURISDICTION, &/C. The loose mode of proceeding authorized by this act was probably intended to save expense in investigating abuses of charities : but in practice it unavoidably led to great inconvenience ; the court not having before it any distinct record to which its judgment might be properly applied, and especially with respect to those against whom com- plaint might be made, or those against whom no- such complaint could be made, but whose interests might be affected by the judgment of the court. This inconvenience became apparent in a case which was made the subject of appeal to the House of Lords, who finally determined, that a jurisdic- tion, so summary, and in which the proceedings were so loose, ought, in just construction of the act, to be confined to the simple case of abuse of a clear trust, not involving any question beyond the question of such abuse, and particularly not involving the interests of persons to whom such abuse of trust could not be imputed.(6) In an inquiry into the nature of the several pleadings thus used, it seems most convenient to consider them in the order in which they [*20] have their *etlect, and consequently to treat, 1, of bills; 2, of the defence to bills, and therein of demurrers, pleas, answers and disclaim- ers ; 3, of replications ; and 4, to notice matters incidental to pleadings in general, and particular- ly the cases in which amendments of inaccurate or erroneous pleadings are permitted. (6) Corporation of Ludlow v. Greenhouse. D. Proc. Feb. 1827- CHAPTER THE FIRST. OF BILLS. SECTION I. 3y whom, and against wJiom, a Bill may be ex- hibited. In 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 protec- tion, or in the name of others ; and against whom a bill may be exhibited : II. The several kinds and distinctions 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 nature will be principally considered un- der the general head of bills, and its peculiarities will be afterwards noticed. It has been already observed that suits on be- half of the crown, and of those who partake of its prerogative, or claim its peculiar protection, are instituted by officers to whom that duty is attri- buted(a). These are, in the case of the crown, and of those whose rights are objects of its particular (o) See above, p, 7. 44 BY WHOM A BILL [22*] attention, * the king's attorney(6) or solici- tor general (c) ; and as these officers act merely officially, the bill they exhibit is by way, not of petition or complaint, but of information to the court of the rights which the crown claims on behalf of itself or others, and of the invasion or detention of those rights for which the suit is instituted. If the suit does not immediately concern the rights of the crown, its officers depend on the relation of some person, whose name is in- serted in the information, and who is termed the relator ; and as the suit is carried on under his di- rection, he is considered as answerable to the court and to the parties for the propriety of the suit and the conduct of it(d). It some- [*23] times happens that this person has an *inte- rest in the matter in dispute, of the in- jury to which interest he has a right to complain. In this case his personal complaint being joined to, and incorporated with, the information given (6) Seel Swanst. 290, 291.294, Chamber, in the British Museum, and Rex v. Austen, 8 Pri. Exch. R. Harl. MSS. vol. i. No. 1226, men- 142. And the crown may be repre- tioned in 4 Bl. Com. 2G7. sented as plaintiff by the attorney (d) 1 Russ. R. 236. It appears, general, and as defendant by the soli- as intimated in the text, that it is not citor general, in the same suit, where absolutely necessary, even in the in- there arc conflicting claims between stances there alluded to, that a relator the king and persons partaking of should be named. 2 Swanst. 520. 4 his prerogative, or under his peculiar Dow, P. C. 8, although the practice protection. See Att. Gen. v. Mayor of naming one seems to have been of Bristol. 3 Madd. 319, S. C. 2 universally adopted. 1 Ves. Jr. 247. Jac. & W. 294. Att. Gen. v. Vivian, 4 Dow, P. C. 8. 1 Sim. & Stu. 396. 1 Russ. R. 226. But it may be remarked that the le- (c) See, as to the solictor general, gislature, in certain special cases in Wilkes's Case, 4 Burr. 2527. Sol. which the right may be doubtful, has Gen. V. Dovy, 6 May, 1735, and Sol. empowered the attorney general to Gen. V. Warden and Fellouship of institute a suit, by information, with- Suiton Coldjield, Mich. 17G3, in out requiring that a relator should be chancery. Ihis subject is particu- named. See 59 Geo. III. c. 91, and larly considered in part iii. sec. 4, of see 1 Sim. & Stu. 396. a manuscript treatise on the Star- MAY BE EXHIBITED. 45 to the court by the officer of the crown, they form together an information and bill, and are so termed(c). But if the suit immediately concerns the rights of the crown, the information is generally exhibited without a relator(jr) ; and where a relator has been named, it has been done through the tenderness of the officers of the crown towards the defendant, that the court might award costs against the relator, if the suit should appear to have been improperly instituted, or in any stage of it improperly conducted(«*). The queen- consort, partaking of the * prerogative of the [*24] crown, may also inform by her attorney. W(i) Suits on behalf of bodies politic and corporate, and of persons who do not partake of the preroga- (e) See as instances, Att. Gen. v. 277. 370. Att. Gen. v. Crofts, 4 Oglender, 1 Ves. Jr. 247. Att. Gen. Bro. P. C. 136, Toml. ed. V. Brown, 1 Swanst. 265. Att. Gen. (§■) The propriety of naming are- V. Master and Fell, of Cath. Hall, 1 lator for this purpose, and the oppres- Jac. R. 381. Att. Gen. v. Heelis, 2 sion arising from a contrary practice, Sim. & Stu. 67, and Att. Gen. v. were particularly noticed b/ Baron Vivian, 1 Russ. R. 226. If the rela- Perrot, iii a cause in the exchequer, tor should not be entitled to the equi- Att. Gen. v. Fox. In that cause no table relief which he seeks for him- relator was named ; and though the self, the suit may nevertheless be defendants finally prevailed, they supported on behalf of the crown. 1 were put to an expense almost equal Swanst. 305 ; and upon an informa- to the value of the property in dis^ tion and bill, the bill alone may be pute. Sec 2 Swanst. 520. 1 Sim. dismissed, see Att. Gen. v. Vivian, & Stu. 397. 1 Russ. R. 236. If the 1 Russ. R. 226. And see Att. Gen. relator should die, this court would V. Moses, 2 Madd. 294, a case of in- appoint another. Att. Gen. v. Pow- formation and bill, in which the king el, Dick. 355. having had no interest, the attorney (h) 10 Edw. III. 179. Collins, general was an unnecessary party. 131. 2 Rol. Ab. 213. (^f) Att. Gen. v. Vernon, 1 Vcrn. (1) A foreign state may sue in chancery, but the description of it must be sufficiently clear to show upon whom the opposite party can serve process. The Columbian Government v. Roth-ichild, 1 Sim. 94, A corporation can only sue in the name and style given to it. Porter V. JVekervis, 4 Randolph's (Virginia) R. 359. 46 BY WHOM A BILL tive of the crown, and have no claim to its par- ticular protection, are instituted by themselves, either alone or under the protection of others. Bodies politic and corporate(/), and all persons of full age, not being feme-covert, idiot or lunatic, may by themselves alone exhibit a bill. A feme- covert, if her husband is banished(/r) or has ab- jured the realm (Z), may do so likewise ; for she then may act in all respects as a feme-sole(wi). Those, therefore, who are incapable of exhibiting a bill by themselves alone, are, ] , infants ; 2, mar- ried women, except the wife of an exile, or of one who has abjured the realm ; 3, idiots and lunatics (t) 3 Swanst. 138. As examples of suits by such bodies, see the Cha- ritable Corporation v. Sutton, 2 Atk. 406. Universities of Oxford and Cambridge v. Richardson, 6 Vcs. 689. Mayor, <^c., of London V. Levy, 8 Ves. 398. City of Lon- don V. Mitford, 14 Ves. 41. Bank of England v. Lunn, 15 Ves. 569. Mayor tf Colchester v. Lowten, 1 Ves. & B. 226. Dean and Chapter of Christ church v. Siinonds, 2 Me- riv. 467. East India Camp. v. Keighley. 4 Madd. 10. Vauxhall Bridge Company v. Earl Spencer, 1 Jac. R. 64. President, tf-c., of Mag- dalen College V. Sibthorp, 1 Russ. R. 154. (k) 1 Hen. IV. 1. SybeU Bel- knap' s case, 2 Hen. lY.l a. 11 Hen. IV. 1 a. b. {() Thomas of Weyland's case, 19 Edw. I. 1 Inst. 133 a. (m) See Newsome v. Bowyer, 3 P. Wms. 37. (n) It may seem, that the disabili- ties arising fronri outlawry, excommu- nication, conviction of popish recu- sancy, attfiinder, and alienage, and those which formerly arose from vil- lenage and profession, ought to bo here noticed. Such of them as sub- sist do not, and the others did not, absolutely disable the person suffer- ing under them from exhibiting a bill. Outlawry, excommunication, and conviction of popish recusancy, are not in some cases any disability ; and where they are a disability, if it is removed by reversal of the outlaw- ry, by purchase of letters of absolu- tion in the case of excommunication, or by conformity in the case of a po- pish recusant, a bill exhibited under the disability may be proceeded upon. Attainder and alienage no otherwise disable a person to sue than as they deprive him of the property which may be the object of the suit. Vil- lenage and profession were in the same predicament. See chap. ii. sect. 2. part 2. (1) In J^ialin v. Malin, 2 Johns. C. R. 238, one Jemima Wilkinson, who was a necessary parly plaintiff, had religious scruples from becom- ing a parlj to any suit. Chancellor Kent said, " if Jemima W. has re- MAY BE EXHIBITED. 4-^ *1. An infant is incapable hy himself o^ [*^25] exhibiting 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 protec- tion, and institute a suit to assert his rights or to vindicate his wrongs ; and the person who in- stitutes a suit on behalf of an infant is therefore termed his next friend. But as it frequently happens that the nearest relation of the infant himself withholds the right, or does the injury, or at least neglects to give that protection to the in- fant which his consanguinity or affinity calls upon him to give, the court, in favor of infants, will permit any person to institute suits on their behalf(p) (2) ; and ^whoever acts thus the [*26] (o) Turner v. Turner, Strang, chan. 376. Anon. 1 Atk. 570. 2 708.f 1) P. Wms. 120. 1 Ves. Jr. 195. (jp) Andrews v. Cradock, Prec. in " ligious scruples whicli cannot be surmounted, and this shaJl be made " to appear, eitlier by affidavit or the report of a marster, perhaps she " may be permitted to become plaintiff by her prochein amy. A per- " son incompetent to protect himself from age or weakness of mind, or " from some religious delusion or fanaticism, quern urgst/anaticus error, " vel iracunda Diana, ought to come under the protection of the court." And see notes to page 29, post. (1) Bradwell v. Weeks, 1 J. C. R. 325. (2) The first news we hear i)[ a prochein amy is in the statute of Westminster, 2 C» 15. Infanti' Lawyer. In matters relating to in- 48 BY WHOM A BILL 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(^) (!)• The next friend is liable to the costs of the s'!it(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 (9) 2 Eq. Cas. Abr. 239. 1 Ves. Mosely, 86. Anon. 1 Ves. Jr. 409 ; Jr. 195. and see Pennington v. Alvin, 1 (r) 4 Madd. 461 ; and see Turner Sim. & Stu. 264. V. Turner, 2 P. Wms. 297. S. C. on (s) And if the next friend of an appeal, 2 Eq. Ca. Ab. 238; and infant do not proceed in the cause, this Strange, 708. It is hence, of course, court, if it be desirable, will super- important to the defendant that the sedehim. Ward v. Ward, 3 Meriv. prochein amy, or next friend of liie 706; 1 Jac. & W. 483 ; but the next infant, be a person of substance, friend of an infant cannot procure the Anon. 1 Atk. 570 ; and, where the substitution of another person to act contrary appears to be thefttct, on an in his place, without submitting to an application by the defendant before investigation into his past conduct by answer, he will be compelled to give the court. Melling v. Melling, 4 security for costs, or another person Madd. 261. if the next friend will be appointed to sue in his stead, should die, the court will take upon Wale V. Salter, Mosely, 47. Anon, itself to appoint another. Lancaster faots, the court often gives extra-judicial directions ; and bears a per- son as amicus curies. Diet, per cur., ia Earl of Pom/ret v. Lord Windham, 2 Ves. 484. The filing of a bill on behalf of an infant makes him a ward of court. Ambl. 303. Lord Raymond's case, Forr. 60. (1) Ewing's heirs v. Armstrong, 4 J. J. Marshall's R. 49. With- in the State of New-York, the chancellor, or a vice-chancellor, or master, must appoint a competent and responsible person to appear as next friend for an infant, before any process can be issued in the name of the latter. 2 R. S. 446, { 2. And, if required by the officer ma- king the appointment, he must give bond, in a penalty at least double the amount claimed in such suit, with such sureties as shall be approved by such officer, conditioned that such next friend shall duly account to such infant for all moneys which may be recovered in such suit. lb. j 5. And see as to bill for a divorce, where the party is an infant. lb. 144. Perhaps, in a proper case, on an application to the court, an infant who had bo means to indemnify a responsible person for costs might be permitted to sue by his next friend in forma pauperis, Fullon v. Rosevelt, 1 Paige's C. R. 180. Chancellor Walworth, in saying tbii, adds, " I see no objection to such a proceeding, though Lord Eldon in- MAY BE EXHIBITED. 49 afterwards thinks proper to proceed in the cause, he is Hable to the whole costs(^) (2). If the *person who thus acts as friend of an infant [*27] does not lay his case properly before the court, by collusion, neglect or mistake, a new bill may be brought on behalf of the infant; and if a defect appears on hearing of the cause, the court tnay order it to stand over, with liberty to amend the bill(w). A The next friend of an infant plaintiff is consider- ed as so far interested in the event of the suit that V. Thornton, Ambl. 398. Bracey Strange, 708, and 2 Eq. Ca. Ab. V. Sandiford, 3 Madtl. 468.(1) 238. It now seems, that if no mis- (/) In Turner and Turner, 2 P. conduct {Pearce v. Pearce, 9 Ves. Wnis. 297, Lord King was first of 548,) be proved against the next opinion that upon a bill filed in the friend, either in the institution, or name of an infant who attained twen- progress of the suit, the late infant, ty-one, the plaintifl^ was liable to the although he should not adopt it, will costs, though he did not proceed after be liable to the costs. Anon. 4 Madd. he attained that age ; but upon are- 461. hearing he changed his opinion, and (w) Serle v. St. Eloy, 2 P. dismissed the bill without costs, the Wms. 386. Pritchard v. Quin- prochein amy being dead. See S. C. chant, Ambl. 147. " timated it could not be done. But in such a case the court would, " in the first place, see that there was probable cause for the proceeding-, " and appoint a proper person to prosecute the suit as prochein ami/.'' Chancellor Walworth, no doubt, here refers to an Anomjmous case in 1 Ves. Jr. 409. (1) As to the mode of applying for a new friend in such a case, see I Grant's Pract. 34? ; Bracey v. Sandiford, 3 Mad. 468 ; Lancaster v. Thornton, 1 Dick. 346, S. C. 1 Ambl. 398. (2) The only exception to this rule must be, the case that sometimes occurs, where a decree has been made during his infancy, by which the infant's rights are bound. There the suit cannot be abandoned, al- though it is not brought in good faith and is against the interest of the infant. In such a case, if the infant applies in time, the court might compel the next friend to remunerate him for the costs and expenses to which his estate has been improperly subjected, although he was com- pelled to proceed ooder the decree. Waring v. Crane, 2 Paige'i C. R. 82. 7 50 BY WHOM A BILL he or his wife(a:) (1), cannot be examined as a wft- ness. If tlieir examination is necessary for the purposes of justice, his name must be struck out of the bill, and that of another responsible person substituted, which the court, upon application^ will permit to be done(i/). As some check upon the general license to institute a suit on behalf of an infant, if it is represented to the court that a suit preferred in his name is not for his benefit, an 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(2:). And if two suits for the same purpose are instituted 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 [*28] his benefit; and *when that point is as- (:r) Head v. Head, 3 Atk. 511. {z) Da Costa v. Da Costa, 3 P. (y) Strange, 708. As a general Wms. 140. Strange, 709. 2 Eq. Ca. rule, it may be stated that this is done Ab. 239.(2) Such an inquiry will upon the next friend giving security not be -lirecled upon the application for the costs incurred in his time, of the next friend himself. Jones v. Witts V. Campbell, 12 Ves. 493. Da- Powell, 2 Meriv. 141. venport v. Davenport, 1 Sim. & Stu. 101. (1) In a case at law, Denniston v. Spurting, 1 Stra. 506, where an infant brought the action, the wife of the next frieod was called, and the court allowed her to be a good witness; while in Head v. Heady referred to, above, in the notes, the depositions of the wife of a next friend were not allowed to be read for the plaintiff, he being liable for costs. Lord Redesdale's rule is no doubt correct. It is confirmed by the common practice of applying for substitution, where the present next friend is wanted as a witness ; as in Wilts v. Campbell ; Daven- 'port V. Davenport, supra. (2) S. P. Garr v. Drake, 2 J. C. R. 542. MAY BE EXHIBITED. 51 ■certained will stay proceedings in the other suit(«). 2. A married woman being under the protection of her husband, a suit respecting her rights is usu- ally instituted by them jointly(6). But it some- times happens that a married woman claims some right in opposition to rights claimed by her hus- band ; and 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 (a) 1 Ves. 545 ; Owen v. Owen, generally, after a decree in one of the Dick. 310.(1) Sullivan v. Sullivan, suits, 1 Jac. R. 528. 2 Meriv. 40. Mortimer v. West, 1 (b) Smith v. Myers, 3 Madd. Swanst. 358 ; but it seeiits an appli- 474. i^^arre?- v. TlyaW, 5 Madd. 449. cation for this purpose should not be Hughes v. Evans, 1 Sim. & Stu, made except in a strong case. Ste- 185.(2) vens V. Stevens, 6 Madd. 97 ; nor (1) This case of Owen v. Owen does not bear the author out in his saying that proceedings will be stayed. The court was pressed to re- strain the plaintiff in the second suit from prosecuting that suit; but Sir Thomas Clark, M. R., refused to do so, as such proceeding would be at his peril; and on searching by order of his honor, precedents could not be found, the parties generally resting on the report. And in Taylor v. Oldham, 1 Jacob's R. 527, the court rightly felt the diffi- culty of staying the second suit : for there might never be a decree in the first cause. Bennet, in his late work on the Duties of Master, says, it will be referred to the master to see which is most for the infant's projit ; and upon these references, the master is at liberty to suggest any improvement in the frame of the suit, and to report any special circumstances that in his opinion may be for the infant's benefit, p. 45. (2) S. P. Schuyler v. Hoyle, 5 J. C. R. 196. In a court of equity, although not at law, baroo and feme are considered as two different persons; and, therefore, it is that a wife by her proc/iem amy may sue her own husband. Sturgis v. Corp, 13 Ves. 190 ; 3 P. Wms. 38, note A ; Kirk v. Clark, Prec. in Ch. 275. 52 BY WHOM A BILL name by her next friend(c), who is also named in the bill in the same manner as in the case of an infant(<^) (2). But a bill cannot in the case of a (c) Griffith V. Hood, 3 Ves. 452. of a feme-covert is not always, in the Lady Elibank v. Montolieu, 5 Ves. first instance, liable to the costs. 737. Pennington v. Alvin, 1 Sim. Strange, 709, 2 Eq. Ca. Ab. 239. & Stu. 264.(1) Barlee v. Barlee, 1 Sim. «feStu. 100, (rf) But it seems, the next friend (1) And it appears the husband may not only be the next friend, but that it may often be desirable he should be so : for by joining the wife 3S a co-plaintiff, he will thereby admit the statement in the bill that it is the separate property of the wife, and this would answer all the pufr pose of making him a defendant. Smith v. Myers, 3 Madd. R. 474, Where a married woman is a complainant and her prochein amy dies, she must name a new next friend in due time afterwards, or her bill will be dismissed. Vice-chancellor Leach ordered it to be done with- in two months. Barlee v. Barlee, I S. Sf S. 100. In Tennessee a bill has been allowed to be brought by a feme covert, for separate maintenance without a next friend, where security for costs was given. Knight v. Knight, 1 Overton's R. 120. No temporary absence of a husband or separate maintenance, or living apart, will enable a wife to sue or be sued, alone. But if he is an alien who baa pever resided within the jurisdiction, she can. Robinson v. Reynolds^ 1 Aiken's (Vermont) R. 174. (2) By the Revised Statutes of the Sate of New-York, vol. ii. p. 144, § 39, a bill for a divorce dissolving the marriage contract, may be exhi^r ted by a wife in her own name, as well as by her husband. A bill tQ annul a marriage on the ground that one of the parties was under the age of legal consent, may be brought by the parent or guardian en- titled to the custody of such minor, or by the next friend of such minor, lb. 142, 5 21. If, on the ground of idiotcy or lunacy, any relative of such idiot interested to avoid the marriage may file a bill. lb. { 24, 25, And where the marriage of an idiot or lunatic is sought to be annulled during the life time of both the parties to the marriage, and no suit shall be prosecuted by any relative, a bill may be filed on the applica-; tion of any person admitted by the court to prosecute as the next friend pf such idiot or lunatic, lb. 143, } 26. After a restoration of reason, the party who has returned to sanity may file such bill. lb. j 27. If on account of force or fraud, on the application of the wronged party or of the parent or guardian of such party, lb. 5 30. If on the ground MAY BE EXHIBITED. 53 feme-covert be filed without her consent(«). The consent of an infant to a bill filed in his name is not necessary(y*). *3. The care and commitment of the [*29] custody of the persons and estates of idiots and lunatics are the 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 inquisition 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 (e) Andrews v. Cradock, Prec. in (/) Andrews v, Cradock, Free. Ch. 376. S. C. 1 Eq. Gas. Abr. 72. in Ch. 376.(2) J Sim. & Stu. 265.(1) of physical incapacity, by the injured party against the party whose incapacity is alleged. Suits to annul a marriage are directed to be by bill. lb. 144, } 35. A separation from bed and board for ever, or for a limited Lime, may be decreed by the court of chancery on the cem- plaint of a married woman. } 50. But no bill is to be filed in the name of a feme covert to obtain a sentence of nullity declaring void her marriage contract, or to obtain a decree for a separation or limited divorce, unless the suit is prosecuted by a responsible person, as the next friend of the complainant, who is to be responsible to the defendant for such costs as may be awarded by the court, if it appear the suit was commenced without any reasonable or justifiable cause. Lawrence v. Lawrence, 3 Paige's C. R. 267 ; 163 Rule of N. Y. Chancery. The validy of this rule was tested and supported in Wood v. Wood, 2 Paige's C. R. 454. ; -S. C. on appeal, 8 Wend. 357. It will be seen that this rule does not touch a case of adultery ; there, a bill may be filed by the wife without a next friend f and see Kirby v. Kirby, 2 Paige's C. R.261. See the history of the law of divorce in the State of New-York, in Burtisv.Burtis, 1 Jioplfit 557. (1) Fulton V. Rosevelt, 1 Paige's C R. 178. (2) Ibid. ^ 54 BY WHOM A BILL lord keeper, or lords commissioners for the custo- dy of the great seal for the time being, think pro- per(^) (1). Idiots and lunatics, therefore, sue by the committees of their estates(A) (2). Sometimes, {g) 3 P. Wms. 106, 107. Ex Ridler, 1 Eq. Ca. Ab. 279. Prac. parte Pickard, 3 Ves. & Bea. 127. Reg. 272. Wy. ed. (A) 1 Ca. in Cha. 19 ; Eidler v. (1) By the statutes of the State of New-York, the chancellor has the exclusive care aud custody of all idiots, lunatics, persons of unsound mind, and those who are incapable of conducting their own affairs in consequence of habitual drunkenness. 2 R. S. 52, } I ; L'Amoureax, committee, v. Crosby. 2 l^aige's C. R. 422. The court of chancery has no jurisdiction in the matter of lunatics, unless they are found to be so under a commission of lunacy, or they are parties in a cause in court. In re Scott, 3 Legal Observer, 164. In the consistorial court of London, a father, not being committee, instituted a suit to annul the marriage of an insane son ; and the suit was dismissed. A suit was afterwards brought by the son who had be- come of age anil sane, and it was sustained. In some instances, persons incapable of acting for themselves, though not lunatics or idiots or infants, have been permitted to sue by their next friend. Chancellor Thurlow has said, he was not against the practice of finding a man lunatic who was, by the infirmities of age, unequal to the management of hk affairs. But the more usual course in the English court is to appoint him a guardian, or some person to act for him, in the receiving and managing his property. Cur. Can. 468 ; Wyatfs P. R. 272; Sackvill v. Aijleworth, 1 Vern. 105, and cases there ; Attorney General v. Tyler, 2 Eden. 230 ; Highm. on Lun. 4. In the matter of Barker, 2 J. C. R. 232, a commission was issued against a party who, from age, had become incapacitated. (2) And such committees must give security, and be also otherwise proper and responsible persons so as to be sufficient to bear costs, &c. Jn re Frank, 2 Russ. R. 450 ; 2 Eden, supra. And, in the State of New-York, additional security may be required for the faithful applica- tion and accounting for the proceeds arising from a sale, lease or mort- gage. 2 R. S. 54,5 14. In the appointment of a committee, relations, unless there is some specific objections, are preferred to strangers. Ex parte Cockayne, 7 Vet. 591 ; Ex parte Le Heup, 18 Jb. 222; Matter of Livingston, 1 MAY BE EXHIBITED. 55 indeed, informations have been exhibited by the attorney general on behalf both of idiots and lu- natics, considering them as under the peculiar protection of the crown(i), and particularly if (i) Att. Gen. \. Parkhurst, 1 Ca. 1 Ca. in Cha. 153. 3 Bro. P. C. in Cha. 112. Att. Gen. v. WoolHch, 633. Tomi. ed. J' C. R. 436. The same person may be committee of the person and of the estate; and he may liketvise be appointed guardian in a suit. Ex parte Broomjield, 3 B. C. C. 5 1 ; Ex parte Ludlow, 2 P. W. 635 ; Westcomh v. Same, Dick, 2!?3. The committee aught to be resident within the jurisdiction of the court ; and if he goes out of it, he ought not to be continued in the character of committee. In such a case, it is his duty to give up his office. Ex parte Ord. 1 Jacob's R.94. A bill of complaint may be taken off the files of the court, if filed in the name of a plaintiff who was in a state of mental incapacity. Wart~ naby v. Wartnaby, 1 Jac. R. 3T7. The committee can make himself a party to a petition, without a bill filed, and thereby obtain an order to restrain waste on the real estate of the lunatic. Matter of Hallock, 7 J. C. R. 24. Where a committee of a luoatic sues for any thing in the right of the lunatic, in such case the committee, as well as the lunatic, are made parties. It is as needful to make the lunatic a party as an infant, where a suit is on his behalf. But in the case of an idiot, it must be otherwise. Fuller v. Lance, 1 C. C 18 n. ; Attorney General y. Woolrich, lb. 153. As to a committee's accounting, see Ex parte Wright, 2 Ves. Sen. 25 ; Rule 154, JV. Y. Chancery ; 2 R. S. 52; 1 Brown's Pract. 506, Where no one can be procured to act as committee of the estate, or where the committee resides at a considerable distance from the estate, a receiver may be appointed, with a salary, upon giving such security as a committee does. Ex parte Warren, 10 Ves. 612 ; and see Ambl. 104. A lunatic is not a necessary party plaintiff with his committee on a bill to set aside an act done by the lunatic, under mental imbecility, and although it is the general practice to join them, it is only a matter of form. Ortley v. Messere, 7 J. C. R. 139. A committee will sometimes be appointed without a reference, where the property is small. In re Adams, 1 Rus. S^ Jtf. 112. §6 BY WHOM A BILL the interests of the committee have clashed with those of the lunatic(/t'). But in such cases, a proper relator ought to he named(Z) ; and where a person found a lunatic has had no committee, such an information has been filed, and the [*30] court has proceeded to give ^directions for the care of the property of the lunatic, and for proper proceedings to obtain the appoint- ment of a committee(m). Persons incapable of acting for themselves^ though not idiots or lunatics, or infants, have been permitted to sue by their next friend, without the intervention of the attorney general(n). A bill may be exhibited against all bodies poli- tic and corporate, and all persons, as well infants, married women, idiots and lunatics, as those who are not lender the same disability, excepting only the king and queen(o). But to a bill filed against a married woman her husband must also be a par- ty, unless he is an exile, or has abjured the realm(3) ; and the committee of the estate of an (k) See Att. Gen. v. Panther, Lepine, a. lunatic, at the relation of Dick. 748. J.)hn Fox ; and also Maria Lepine (Z) Att. Gen. at relation of Ch-if- against Earl and Countess Howe and ^th Vaughan, a lunatic, against others; 26 March, 1793.— 3 April^ Tyler and others, 11 July, 1764:. 1794. On motion, ordered that a [)roper re- (n) Eliz. Liner/, a J erson deaf lator should be appointed, who might and dumb, by her next friend, against be responsible to the defendants for Thomas Witherly and others. In the costs of the suit. See Dick. 378. chancery — Decree, 1 Dec. 1760. 2 Eden. 230. And see Att. Gen. v. Decree on supplemental bill, 4 Plumptree, 5 Madd. 452, though the March, 1779. See Wartnaby v, case of a charity information. Wartnaby, 1 Jac. R. 377.(1) (m) Att. Gen. on behalf of Maria (o) See Chap. ii. sect. 1.(2) (1) See note page 54, above. (2) Page 102. (3) Pain v. , Gary, 92 ; Same bonk 55 ; Clark v. Lord Angier, 1 C C. 41 ; Pierce v. Thornely, 2 Sim. 167. Tbis is not in- MAY BE EXHIBITED. 57 idiot or lunatic must be made defendant with the person wliose property is under his care(l). Where the rights of the crown are concerned, if they extend only to the superintendence of a pub- variably tlie case, for she ma}', possibly, claim in opposition to her hus- band. Wyhourn v. Blount, 1 Dick. 155 ; JVewsome v. Bowyer, 3 P. VV. 38, note a ; Ferine v. Swaine, 1 J. C. R. 24 ; Ferguson v. Smith, ^Ib. 139 ; and see Carey v. Whittingham, 1 S. 8; S. 163. Or, she maj' have been sued by her husband. Ex parte Strangeways, 3 ^tk. 478. Perhaps they may be living separate. Barry v. Cane, 3 Mad. R. 472 ; and see Chambers v. Bull, 1 Anst. 269 ; Leithly v. Taylor, Dick. Z12; lb. 133. 143. 155; Plomerv. Plomer, 1 C. R. 68; Ormsbyv. White, 1 Hogan's C. R. 254. Or she or he may be lunatic ; or she may be deserted ; or the husband may be necessarily abroad. 1 Grant's Pract. (2d edit.) ; Glover v. Young, Bunb. 167; Caiter v. Carter, 1 Paige's C. R. 463 ; Bushell v. Bushell, 1 S. 4^ S. 164. Or, she may be under age. 1 Vent. R. 185; Jloor v. Greenviile, Toth. 95. If a plea or demurrer is necessary, they must, in ordinary cases, both join. Pain V. , supra ; Spicer v. Pakine, Cary 39. (I) Sackvill Y. Ayleworth, 1 Vern. lOf) ; note 13, at p. Ill of 3 P. WmK. The soundness of the observation here made, as to joining the lunatic with his committee as a defendant, may well be doubted ; see what Chancellor Kent says in The Executors of Brasher v . Van Cortlandt, 2 J. C. R. 242, and cases there referred to ; but also see Harrison v. Rowan, Coxe's Digest, pi. 229. A person in the condition of a lunatid or idiot has been allowed to answer by guardian. Westcomb v. IVest- comb, Dick. 233 ; Gason v. Gamier, lb. 286 ; and see Lee v. Ryder, Geld. 1^ Jlad. 292; J}nonymous, cited in note B. 3 P. TT'ms. Ill ; Eyre v. Wake, 4 Ves. Jr. 795 ; Wilson v. Grace, 14 Ves. Jr. 171. Where the amount of property has been small, a guardian has been appointed. Ex parte Picard, 2 V. Sf B. 127. In Howlett v. tVilbra^ ham, 5 Mad. 423, on motion of the complainant, a guardian was ap- pointed to defend for a lunatic defendant. If the committee happens to be a defendant in his own right, the complainant should proceed against the lunatic, (this, by the by, would seem to show the latter ought to bp n party,) anJ if the committee re- fuses to answer for him, a new committee will be appointed. Lloyd 8 58 BY WHOM A BILL lie 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 possession, a title vest- ed in it is not impeached, and its rights are only incidentally concerned, it has generally b^en con- sidered that the king's attorney general may [*31] be made *a party in respect of those rights, and the practice has been accordingly( /?). But where the crown is in possession, or any title is vested in it which the suit seeks to divest or af- fect, or its rights are the immediate and sole ob- ject of the suit, the application must be to the king by petition of right( which the party applying undertakes ject of this writ. Hydey. Whitfieldf to file forthwith. M'Namara v. Ar- 19 Ves. 342. Baynes v. Wyse, 2' //lur, 2 Ball &B. 349; but there are Mcriv. 472. Flack v. Holm, 1 Jac. exceptions to this general rule, see & W. 405, and the cases therein- Wright V. Atkyns, 1 Ves. & B. 313. cited. Leake v. Leake, 1 Jac. & W. Casamajor v. Strode, 1 Sim. & Stu. 605. Graves v. Griffith, 1 Jac. & W.. 381. Amory v. Brodrick, 1 Jac. R. 646. Blaydes v. Calvert, 2 Jac. & 530. W. 211. Pannell v. Tayler, 1 (a) It seems requisite that the writ Turn. R. 96.(2) of ne exeat regno should be prayed (1) See forms of prayer. Willis, 7; Equity Draft (2d edit.) 6, 7. ( 2 Grant v. Grant, 3 Russ. 598. The object of the writ of ne exeat is to obtain equitable bail, and may be applied for in any stage of the suit. In Stewart v. Stewart, \ B. Sf B. 73, a ne exeat was granted against a complainant who was about to leave the country before the' decree for costs could be made effectual against him. Dunham t. 80 FRAME AND END OF THE [*47] lar nature. When *a bill seeks to obtain the special order of the court, or a provi- sional 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 com- monly named from the writ so prayed, as an in- junction-bill, or a bill for a writ of ne exeat regno. Sometimes the writ of injunction is sought, not as a provisional remedy merely, but as a continu- ed protection to the rights of the plaintiff; and the prayer of the bill must then be framed accord- ingly. These are the formal parts of an original bill as usually framed. 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 defendant, in opposition to the plaintiff's claims, or to interrogate the defendant specially. The indiscriminate use of these parts of a bill in all cases has given rise to a common reproach to prac- Jackson, 1 Paige's C. R. 629 ; Mitchell v. Bimce, 2 lb. 606. The debt for which the writ issues must be equitable, (save in a matter of account), must be due, and must be such a debt that the sum to be marked upon the writ can be ascertained. Boehm v. Wood, 1 Turn. 8f R. 332 ; Seymour v. Hazard, 1 J. C. R. 1 ; Porter v. Spencer, 2 lb. 169 ; Smedburg v. Mark, 6 76. 138 ; Mitchell v. Bunce, supra. To sustain the application for a vrrit of ne exeat, sufficient equity must appear on the face of the bill. Woodward v. Shatzell, 3 J. C. R. 412. It seems, that a writ of ne exeat is not granted on petition and motion only, without a bill being previously filed. Mattocks v. Tremain, lb. 75. In the state of New-York, the writ of ne exeat is not a preroga- tive writ. In a proper case this writ is of right, and not discretionary. Gilbert r. Colt, Hopk. R. 496. BEVEllAL KllNDS OF BILLS. 81 tisers in this line, that every bill contains the same story three times told(l). In the hurry of busi- ness it may be difhcult to avoid giving ground for the reproach ; but in a bill prepared with attention, the parts will be found to be perfectly distinct, and to have their separate and necessary opera- tion(2). The form of every kind of bill bears a riesem- blance to that of an original bill ; but there are necessarily some variations, either arising from the purposes for which the bill is framed, or the cir- cumstances under which it is exhibited ; and those variations will be noticed, together with the pecu- liarities attending each kind of bill. *Every bill must be signed by counsel [*48] (a); and if it contains matter criminal, im- (o) Dillon V. Francis, Dick. 68. rity, that, judging from 'wrilten iil- French v. Dear, 5 Ves. 547. 2 Ves. struct ions laid betcre him of the case «& B. 358. Kirkley v. Burton, 5 of th(; defendant as well as of the Madd. 378. n. Webster v. 7"h ret/all, plairivifl', there appeared to him, at 1 Sim. & Stu. 135. Pill v. Alacklew, the time of framing it, good ground ISim. &Slu. 13fi. n. Lord Eldon of suit. 3d June, 1826. MSS. And declared that the signature of counsel see 3 Ves. 501. to a bill is to be regarded as a secu- (1) See Macnamara v. Sweelman, 1 Hngan, 29. (2) The framing of bills is usually the province of the junior coun- sel ; it is of great importance, and requires much knowledge and judg- ment. In n I otiier science is so much expected from the younger members. In all perplexed and difficult qucblions, it is prudent to have the opinion of some senior counsel upon the fitness of the bill for its in- tended purpose ; it may ultimately save much expense and disappoint-' ment. I have heard Lord Eldon jocosely observe, that Lord Thurlow thought a machine might be invented for the drawing of bills. But ia this sarcasm, that great judge too much underrated the knowledge, judgment and experience, requisite in the framing of bills in matters of importance. With more truth it has been remarked, " that the mere "form of bringing a question before a court, is of itself a science, an " art less understood and more difficult to learn, than the constructioa 11 62 FRAME AND END OF THfi pertinent(l), or scandalous, such matter may be expunged, and the counsel ordered to pay costs to the party aggrieved(6). But nothing relevant is considered as scandalous(c). 2. Where two or more(i) ; and if (I) Prac. Reg. 78. Wy. ed. E. I. (m) 2 Eq. Ca. Ab. 173. Erring- Comp. V. Edwards, 18 Ves. 376. ion v. Att. Gen. Bunb. 303. 2 Ves; Croggin V. Symons, 3 Madd. 130. & B. 410. 1 Jac. R. 205.(2) See 1 Jac. R. 205. (1) Jeremy's Eq. Juris. 346. And such a bill may be filed, although the claim of one of the defendants is actionable at law, and that of the other of equitable cognizance. Richards v. Salter, 6 J. C. R. 445 ; yet see Barclay v. Curtis, 9 Price, 661. But, a bill of interpleader should not be filed except in cases where the complainant can, in no other way, be protected from an unjust litigatijn in which he has no interest. Bedell v. Hoffman, 2 Paige's C. R. 199. If the complainant has paid over money to one defendant under a claim to which he was bound to submit, this will not exclude him from filing such a bill. JSTash v. Smith, 6 Connecticut R. 421. A mere suggestion of a doubt as to who is entitled to money due by the plaintiff, is not sufiBcient to sustain a bill of interpleader. Tobin v. Wilson, 3 J. J. Marshall's R. 67. It is observable that on a bill of this kind the court will not grant an in- junction. Croggon V. Symons, 3 Madd. 130, and cases there. (2) And see p. 142, \ A3, post. 84 FRAME AND END OF THE any money is due from him he must bring it into court, or at least offer so to do by his bill(w). [*50] *3. When an equitable right is sued for in an inferior 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 jurisdiction of the inferior court; the defendant(o) may file a bill in chance- ry, praying a special writ, called a writ of certio- rari, to remove the cause into the court of chan- ceryQ:?). This species of bill, having no other ob- ject 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(g'). The proceedings upon the bill are pe- (n) (l/Prac. Reg- 79. W_y. ed. the suit is money, and the same has Earl of Thanet v. Paterson, 3 Bar- l)ecn y)aicl into court, and the cause nard, 247. 2 Ves. Jr. lOD. Burnett heard, the suit is at an end, so far as V. .Anderson, 1 Meriv. 405. Warirtg- the plaintiff' is concerned. See Anon. ton\. Wheatstone, 1 Jac. R. 202. 1 Vern. 351. 3 Barnard, 250.(3) E. I. Comp. V. Edwards, 18 Ves. (o) Sowton v. Cutler, 2 Chan. 376. And see Statham v. Hall, 1 Rep. 108. Turn. R. 30. In some instances it (p) Prac. Reg. 41. Boh. Priv. seems, that if an injunction should Lond. 2[)1. Hilton v. Lawson, Ca.- have been prayed, it would not be ry's Rep. 48. 1 Vern. 178. f ranted unless the money should (7) There are cases mentioned in ave been actually paid into court, the books apparently to the contrary j Dxmgey v. Angove, 3 Bro. C. C. but they .'^eem not to have been cases 36(2). And it may be observed, that of bills praying merely the writ of cer- where the whole subject matter of tiorari. See 1 Ca. in Cha. 31. (1) The motion (o pay in the money mnj- be grounded upon the bilJ alone. There is no occasion for an affidavit of facts. Walbank v. Sparks, ? Sim. 385. (2) See the case of Clindtnnin v. OKcefe. ] Hogan. 118; and yicary v. Widger, 1 Sim. 15. (3) In general, on a bill of inlerpleadcr, the plaiolifTs will be al-. lowed their costs out of the fund, but if the money has not been brought SETERAL KINDS OF BILLS. ^ culiar, and are particularly mentioned in the books which treat of the practice of the court(r)(l). It may seem improper to consider certio- rari bills under the *head of bills praying re- [*51] lief; but as they always allege some in- competency of the inferior court, or injustice in its proceedings(5), and seek relief against that in- competency or injustice, they seem more properly 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 origi- nal bill in the court of chancery, and is proceed- ed upon as such. Original bills not praying relief have been al- ready mentioned to be of two kinds : 1, bills to per- petuate the testimony of witnesses ; and 2, bills of discovery. 1. A bill to perpetuate the testimony of wit- nesses must state the matter touching which the plaintiff is desirous of giving evidence, and must show that he has some interest in the subject(<), (r) Prac. Re§. 8-2. Wy. ed. Ste- Temp. Finch. 391. Smith v. Ait. phenson v. Houlditch, 2 Vern. 491. Gen. Mich. 1777, in Chan. As to Woodcraft v. Kinaston, 2 Alk. 317. the nature of the interest which is Pierce v. Thomas, I Jac. R. 54. sufficient whereupon to institute such Edwards v. Bowen, 2 Sim. & Stu. a suit, see 6 Ves. 260, 261. Lord 514. Dursley v. Pitzhardinge. 6 Ves. 251, (s) 1 Vern. 442. AUan v. Allan, 15 Ves. liSO. (f) Mason v. Goodhurnc, Rep. into court, they must pay interest upon it. Spring v. 5. C. Ins. Co, 8 Wheat. 268. (1) This species of bill is useless in the State of New-York. There are no inferior courts of equity. The vice-chancellors have, within their circuit, all the original jurisdiction and powers of the chancellor. 2jR. S, 168, {2. 86 FRAME AND END OF THE and pray leave to examine witnesses touching the matter so stated, to the end that their testimony may be preserved and perpetuated(M) (1). The bill ought also to show that the [*52] facts to * which the testimony of the wit- nesses proposed to be examined is concei- ved to relate cannot be immediately investigated in a court of law, as in the case of a person in pos- session without disturbance(:r) ; or that before the facts can be investigated in a court of law the evi- dence of a material witness is likely to be lost, by his death, or departure from the realm(2/) (3). (u) . 1 Sch. Rose V. Gannel, 3 Atk. 439. 1 Sch. & Lefr. 316. Morrison v. & Lefr. 316. As relief is not Arnold, 19 Ves. 670. prayed by a bill to perpetuate the tes- (x) See Duke of Dorset v. Girdler, tiniony of witnesses,i^2) Dalion v. Prec. in Cha. 531. 1 Sim. & Stu. Thomson, Dick. 97, the suit is ter- 88. minated by their examination ; and (y) According to the latter part of of cour.se, therefore, is not brought to this proposition the right of action a hearing. Hall v. Hoddcsdon, 2 P. may be either in the plaintiff or de- Wms. 162. 2 Ves. 497. Anon, fendant in equity. With reference Ambl. 237. Vaughan v. Fitzgerald, to the defendant, the time of bringing (1) Jeremy's Eq. Jur. 273; Jerome v. Same, 5 Conn. R. 252; J\lay V. Armstrong, 3 J. J. Marshall's R. 261. Such a bill must be sworn to. Laight v. Morgan, 1 J. C. 429 ; S. C. 2 C. C. E. 344. And see the text above, p. 52. For a form of this affidavit, 2 Madd. Ch. R. 252. See a precedent of such a bill in Willis on Pleading, p. 310; and observe the notes and cases there; also, a precedent in the Equity Drafts. (2d edit.) vol. i. p. 465. It is presumed that a bill to perpetuate testimony would hardly be proper in the chancery of the Stale of New-York. The matter is ef- fected through an application to a master and by affidavit. 2 R. S. 398. (2) Jerome v. Same, supra ; Miller v. Sharp, 3 Randolph's R. 41. (3) Or that such witness is beyond sea ; or that the facts to be ex- amined to are of great importance, or no other but a single witness, although neither aged nor infirm, {Shirley v. Earl Ferrers, 3 P. Wms. 77 ; Pearson v. Ward, 4 Cox, 17 7 ; Hankin v. Middledilch, 2 Br. C- C' 640) ; or, only two witnesses {Lord Cholmondeley v. Lord Orford, 4 B. C. C. 156) to be examined, is or are privy to such facts whereby the complainant is iu danger of losing bis or their testimony. SEVERAL KINDS OF BILLS. 8*7 To avoid objection to a bill framed on the latter ground, it seems proper to annex to it an affidavit of the circumstances by which the evidence in- tended to be perpetuated is in danger of being lost(2r) ; a * practice adopted in other [*53] cases of bills which have a tendency to change the jurisdiction of a subject from a court of law to a court of equity, and which will be af- terwards more particularly noticed. It seems another requisite to a bill of this kind that it should state that the defendant has, or that he pretends to have, or that he claims, an interest to contest the title of the plaintiff in the subject of the proposed testimony («). 2. 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 knowledge of the defendant(l), or of deeds or the action depending upon his will, of trial, 1 Sim. & Stu. 90, in which the situation of the plaintifT would case it seems that it ought to be stated be similar to that intimated in the in the bill that the action was brought former part of the proposition in the before the same was filed. AngcU'v. text, 1 Sim. & Stu. 89 ; and with re- Angell, 1 Sim. & Stu. 83. On the spect to the plaintiff, it must be un- general subject, see the cases cited, 1 derstood to relate to the case of his Sim. & Stu. 93, note, and I'eale v. not being able at present to sustain Teale, 1 Sim. & Stn. 385. an action. Cox v. Colley, Dick. 55. {z) Earl of Suffolk v. Green, 1 1 Sim. & Stu. 114 ; for, if he should Atk. 450. An afhdavit of like cir- have such present right, his object cuinstances is also requisite, where could only be what is technically the object is merely the examinatjon termed an examination de bene esse, of the witnesses de bene esse. An- upon the ground of his having only gell v. Angell, 1 Sim. & Stu. 83 ; and one witness to a matter on which his see Philips v. Carew, 1 P. Wms. claim depends, or, if he have more, 117. Shirley v. Earl Ferrers, 3 P. on the ground of their being aged, or Wms. 77. too ill or infirm to attend in a court (a) See Lord Dursley v. FitzhaX' of law, and that he is therefore likely dinge, G Ves. 251. to lose their testimony before the time (1) In order to give jurisdiction, on account of the defect of proof, the fact sought to be discovered must restexclusi\ < ly in the defendant's knowledge and be susceptible of no other pror^f; and must be so al« leged. Emerson v. Staton, 3 Monroe's (Kentucky) R. 117. 88 FRAME AND END OF THE writings, or other things in his custody or powef^ and seeking no rehef'in consequence of the disco- very, though it may pray the stay of proceedings at law till the discovery should be made. This bill is commonly used in aid of the jurisdiction of some other court, as to enable the plaintiff to pro- secute or defend an action at law(6), a proceeding before the king in council(c), or any other legal proceeding of a nature merely civil(rf) before a jurisdiction which cannot compel a discovery on oath(e) ; except that the court has in some instan- ces refused to give this aid to the jurisdiction of inferior courts(y). Any person in possession of an estate, as tenant or otherwise, may file [*54] *a bill against a stranger, bringing an eject- ment, to discover the title under which the ejectment may be brought(^), though the plaintiff may not claim any title beyond that of mere te- nant or occupant. A bill of this nature must state the matter touching which a discovery is sought, the interest of the plaintiff and defendant in the subject, and the right of the first to require the discovery from the other(/i). A bill seeking a discovery of deeds or writings sometimes prays relief, founded on the deeds or writings of which the discovery is sought(2). (b) 5 MadJ. 18. (/) 1 Ves. 205. (c) 1 Ves. 205. (g) 1 Ves. 24i). fd) 2 Ves. 398. (A) Cardale v. Watkins, 5 Madd. (e) Dunn v. Coates, 1 Atk. 288. 18; and see yioodaly v. JMoreton, 1 Yes. 205. Anon. 2 Ves. 451. Dick. 652, S. C. 1 Bro. C. C. 468.(1) (1) And Jeremy's Eq. Juris. 257. 2) See the form of such a bill and cases referred (o. Willis on Equity Pleading, 13. 27. And for further comments on this species of bill, p. \Qb,post. SEVERAL KINDS OF BILLS. fS9 If the relief so prayed be such as might be obtain- ed 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, un- less they are in the hands of the defendant(e) ; but a bill for a discovery merely, or which only prays the delivery of deeds or writings, or equita- ble relief grounded upon them, does not require such an affidavit(A-). If the title to the possession of the deeds and writings, of which the plaintiff prays possession, depends on the validity of his title to the property to which they relate, and he is not in possession of that property, and the evidence of his title to it isi in his own power, or does not depend on the production of *the deeds or writings [*55] of which he prays the delivery, he must es- tablish his title to the property at law before he can come into a court of equity for delivery of the deeds or writings(Z). II. Bills not original arc either an addition to, or a continuance of, an original bill, or both. An imperfection in the frame of a bill may generally be remedied by amendment(2) ; but the imperfec- (i) 1 Ves. 344. Hook v. Dorman, 6 Ves. 288. 1 bim. & Stu. 227.(1) (I) See Jones v. Jones, 3 Meriv, (k) Godfrey v. Turner, 1 Vern. 161. 1 Matld. R. 193. Crow v. Ty- 247. Whitchurch V. Guiding. 2 P. reZZ, 3 M add. 179. Field v. Beau^ Wms. 541. 1 Ves. 344. 3 Atk. mont, 1 Swanst. 204. 132. But see Aston v. Lord Exeter, (1) Executors of Livingston v. Livingston., 4 J. C. R. 294. See the form of the necessary affidavit, 1 Grant's Prac. (2d edit.) 13, (2) Amendments are granted only where there is some defect as to parties, or some omissioa or mistake of a fact or circumstance connect- 12 90 FRAME Amy END OF THE tion may remain undiscovered whilst the proceed- ings are in such a state that an amendment can be permitted according to the practice of the court. ed with the substance of the case, but not forming the substance itself, or where there is some defect in the prajer for relief. Lyon v. Tall- madge, 1 J. C. R. 184; Verplanck v. Mercantile Ins. Co. of Jf. Y., 1 Edwards' V. C. Reports, 46. See when amendments are allowed in the court of chancery of the State of New-York. Rules 43, 44, 45. 60; 2 R. S. ]84; Hunt v. Hollajid, 2 Paige's C. R. IQ. But the ordinarj rules do not apply to sworn bills. Parker v. Grant, 1 J. C. iJ. 434 ; Rodgers v. Rodgers, 1 Paige's C. R. 424; Whitmarsh v. Campbell, 2 lb. 67 ; and see Beekman v. Waters, 3 J. C. i2. 410 ; and Renwick V. Wilson, Q lb. 81. When a complainant wants to amend a sworn bill, he must state the proposed amendments distinctly, so that the court can see that they are merely in addition to the original bill, and not inconsistent therewith. He must also swear to the truth of the several matters proposed to be inserted as amendments, and render a valid excuse for not incorporaling them in the original bill ; and the application to amend must be rnade as soon as the necessity of such amendnient is discovered. Rodgers v. Rodgers, supra ; Whitmarsh v. Campbell, supra ; Verplanck v. Mercantile Ins. Co. nfJST. Y. supra. Amendments to a bill are always considered as forming part of the original bill. They refer to the time of filing the bill ; and the defend- ant cannot be required to anbwer any thing which has arisen since that time. Hart v. Everett, 1 Paige's C. R. 124. Consequently, an origi- nal bill cannot be amended by incorporating therein any thing which arose subsequent to the commencement of the suit. This should be stated in a supplemental bill. Stafford v. Howlelt, lb. 200. If the cause has progressed so far that an amendment cannot be made, the court will give the complainant leave to file a supplemental bill. And where such leave is given, the court will permit other matters to be in- troduced in the supplemental bill, which might have been incorporated in the original bill by way of amendment, lb. After replication, the plaintiff will not be allowed to amend his bill until after he has obtained leave to withdraw his replication ; and the materiality of the amendment, and the reason why it was not stated be- fore, must be satisfactorily shoivn to the court. [See cases attached to the text.] But if a witness has been examined, the pleadings cannot be altered or amended, unless under very special circumstances, or in consequence of some subsequent event, except for the purpose merely SEVERAL KINDS OF BILLS. 91 This is particularly the case where, after the court has decided upon the suit as framed, it appears ne- cessary to bring some other matter before the court to obtain the full effect of the decision ; or, before a decision has been obtained, but after the parties are at issue upon the points in the original bill, and witnesses have been examined (in which case the practice of the court will not generally permit an amendment of the original bill)(m) (to) See Chap. 4. An amendment 48. Daus v. Benn, 1 Jac. & W. for the purpose of adding parties, 513. Wcllbeloved v. Jones, 1 Sim. Anon. 2 Atk. 15. 3 Atk. HI, 371; & Stu. 40 ; or to correct a mere cleri- and Palk v. Lord Clinton, 12 Ves. cal error, Att. Gen. v. Newcombe, 14 of adding parlies. Thorn v. Germond, 4 J. C. R. 363. After publi- cation passed, and the case is set down for hearing, the plaintiff will not be allowed to amen J his bill, by adding new charges ; but he may file a supplemental bill on payment of costs. Shepherd v. Merrill, 3 J. C. R. 423 ; and see page 62, ante, and notes tliere. A second amendment to a bill was refused, after an answer by one defendant, and a plea by another, who was surety, and the plea allowed and the bill as to him dismissed, and a motion for rehearing granted, after eighteen months had elapsed from the first amendment, and no new evidence since acquired ; and the second amendment being substantially the same as the first, though ^ more directly charging the defendants with fraud. Kirhy v. Thomp- son, 6 J. C. R. 79. Amendments by merely adding parties have been allowed at almost everv stage of a cause. See amendments of a formal part allowed after a demurrer. JiPIlvaine v. Willis, 3 Paige's C. R. 505. A complainant cannot, as of course, amend liis answer by leaving out the name of a defendant. Chase v. Dunham, 1 Paige's C- R. 572. Nor can one defendant be struck out on motion of another, without notice. Livingston v. Ogden, 4 J. C. R. 94. As to office practice and service upon amendments, see Luce v. Gra- ham, 4 J. C. R. 170; Beekman v. Waters, 3 lb. 410; Rcnwick v. Wilson, 6 lb. 81 ; Bennington Iron Co. v. Campbell, 2 Paige's C. R, 159; Hunt v. Holland, supra.; Rules 43,44,45. 60, of JVew York Chancery. 92 FRAME AND END OF THE [*56] some other point appears necessary to *be made, or some additional discovery is found requisite(?«). And though a suit is perfect in its institution, it may by some event subsequent to the fihng of the original bill become defective, so that no 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 subsequent to the institution of the suit has either made such a change in the interests of those parties, or given to some other person such an interest in the matters in litigation, that the proceedings, as they stand, cannot have their full effect. The other is the case when, by some sub- sequent event, there is no person before the court by whom, or against whom, the suit, in the whole or in part, can be prosecuted. It is not very accurately ascertained in the books of practice, or in the reports, in what [*57] cases a suit *becomes defective without being absolutely abated ; and in what cases it Ves. 1, will be allowed at the hearing plaintiff leave to amend, unless he of the cause. In the caseof an infant shows not only the materiality of the complainant, this liberty it seems proposed alteration, but also that he would be granted without restriction, was not in a condition to have made if for his benefit. J^'rilehard v. Qnin- it earlier. See Longman v. CallU chant, Ambl. 147; and even in ordi- ford, 3 Anstr. 807. Forrest, Exch, nary ';ases great indulgence has in R. 13. Lord Kilcourcy v. Ley, 4 this respect been shown. See Fit kin Madd. 212. Dean of Christ church r. Hill, 4 Bro. P. C. 640. Toml. v. SrmoTJt/s, 2 Meriv. 467. Wright ed. Palkv. Lord Clinton, 12 Ves. v. Howard, 6 Madd. 106. M'Neil 48. Woollandsx.Crov.cher,\-2Yes. v. Ca/it7/, 2 Bligh, P. C. 228. See 174. Hamilton v. Houghton, 2 Barnelt v. AoWe, 1 Jac. & W. 227. Bligh, P. C. 169. And with regard (n) See Jones v. Jones, 3 Atk, to the practice before the hearing, it 110. Goodwin \. Goodwin, 3 Atk, may be observed, that after the cause 370. (sat issue, this court will not give the SEVERAL KINDS OF BILLS. 93 abates as well as becomes defective. But upon the whole it may be collected(o), that if by any means any interest of a party to the suit in the matter in litigation becomes vested in another, the proceedings are rendered defective in propor- tion as that interest affects the suit ; so that al- though the parties to the suit may remain as be- fore, yet the end of the suit cannot be obtained(j»). And if such a change of interest is occasioned by, or is the consequence of, the death of a party whose interest is not determined by his death, or the marriage of a female plaintiff, the proceedings become likewise abated or discontinued, either in part or in the whole(l). For as far as the interest of a party dying extends, there is no longer any person before the court by whom or (o) It is impossible to give author!- cases it will be found, that, in gene- ties for every thing asserted u[)on thi^ ral, the groun Is of the decisions war- head. The books, in words, ahnost rant the conclusions here drawn, as frequently contradict as support (p) As an example, see Mole v. these assertions. But it is conceived, Smith, 1 Jac. & W. 665. that from an attentive perusal of the (1) Where a part}- who has not been served with a subpcBua, nor appeared, dies, his death is no abatement of the suit, and, consequently, there can be no revivor. Nor can a plaintiff have the benefit of the proceedings in the suit against the executor or administrator of the de- ceased : for tiie intestate was never an effective party to the suit, nor bound by the proceedings. A bill, under these circumstances, is, strictly speaking, original as to the executor or administrator, though supplemental as to tfie other parties, and would require the represeuta- tives of the deceased to answer the original bill as well as the supple- mental matter, and pray the distinct relief to which the plaintiff con- sidered himself to be entitled against such executor or administrator. Such a bill would fail, if a general demurrer were put in by the repre- sentative : upon the ground that the plaintiff was not entitled to revive the suit, nor to have any benefit of the proceedings against him. Asbee ¥. Shipley, Geldart Sf Madd. R. 296. 94 FRAME AND END OF THE against whom the suit can be prosecuted ; and a married woman is incapable by herself of prose- cuting a suit. As the interest of a plaintiff gene- rally extends to the whole suit, therefore, in gene- ral, upon the death of a plaintiff, or marriage of a female plaintiff, all proceedings become abated(^), (1). Upon the death of a defendant, likewise, [*58] all proceedings abate *as to that defend- ant. But upon the marriage of a female de- fendant, the proceedings do not abate(r), though her husband ought to be named in the subsequent proceedmgs(5)(2). If the interest of a party dy- (9) 1 Eq. Ca. Ab. 1, margin, plaintiff cannot he injured by a de- Dick. 8. Adamson v. Hull, 1 Sim. cree against flie |)crson holding that & Stn. 24!). possession. And it has been deter- (r) 4 Vin. Ab. 147. PI. 20. 1 mined, that wliore a female plaintiff Vern. 318. has married, and has, notwithstand- (s) 1 Ves. 182. The reason of the ing, j)roceeded in a suit as a feme din'erence between the oases of a fe- sole, the viere want of a bill of re- male plaintiff and defirdpnt seems to vivor is not error for which a decree be, that a plaintifi' seeking to obtain can be reversed upon a bill of review a right, the defindant 11133 be injured brought by the defendant. Lady by answering to one who is not eiiti- Cramborne v. Dcdraahoy, 1 Chan, tied to sue for it ; but a deiendant Rep. 231. Nels. Rep. 86. '= And naerely justifying a possession, the at law, if a womari sues or be sued (1) But an injunction is neither inoperative nor abated b}' the abatement of a suit. But the rule is, that if the suit abates by the death of either the complainant or defendaot, the party against whom the in- junction issued, or his representatives, may have an order requiring the complainant or his representatives to revive within a stated time, or that the injunction be dissolved. Where a suit abates by llie death of the complainant, those who succeed to his rigiits may apply to the court to punish a breach of an injunction wliich has taken place either be- fore or after his death, as soon as they have taken the preliminary steps to revive llie suit either by filing' a bill of revivor or otherwise ; and it is not necessary for them to wait until a decree of revivor is actually obtained. Per Cliancellor Walworth, in Hawley S^ others. Trustees, 4-c., V. Bennett {J\l. 5.) IG July. 1833. (2) And if she has answered, the husband is bouDd by it. 1 Harr, I'rac. 296, (6th edit.) ; and see Cary. 81. SEVERAL KINDS OF BILLS. 95 ing so determines that it can no longer affect the suit, and no person becomes entitled thereupon to the same interest which happens in the case of a tenant for hfe, or a person having a cotemporary or contingent interest, or an interest defeasible upon a contingency, the suit does not so abate as to require any proceeding to warrant the prosecu- tion 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 of the suit, no subject of litigation remaining. If the whole interest of a part}' dying survives to another party, so that no claim can be made by or against the representatives of the party dying, as, if a "^bill is filed by or against [*59] trustees or executors, and one dies not hav- ing possessed any of the property in question, or done any act relating to it which may be question- ed in the suit, or by or againr^t husband and wife, in right of the wife, and the husband dies under cir- cumstances which admit of no demand by or against his representatives(/), the proceedings do not abate. So if a surviving party can sustain the as sole, and judgment is against her (t) Dr. Parry v, Juxon, 3 Ch:>.n. as such, tiiough she was covert, she Rc,>. 40. 2 f'reem. 133. Shelberry shall be estopped, and the sheriff v. Jiriggs, 2 Vern. 249. i\non. 3 shall take advantage of the estoppel." Atkvns, 726. See Humphrci/s v. 1 Salk. 310. 1 Rol. Ab. 869. 1. 50. Hollis, 1 Jac. R. 73.(1) (1) M-Dowl V. Charles, 6 J. C. R. 132; and see 2 R. S. 184, 185 ; Vaughan v. Wilson, 4 Hen. S^ Jllunf. 453; Coppin v. , 2 P. Wins. 49Q; Bond v. Simmons, 3 «5<^^ 21. But if sAe dies, it will abate. The death of the wife, wiien they sus for what they have a joint right to, shall not abate tiie suit : for the whole interest survives to the husband. Pisrs v. Kaicse, Carij, Vj3. 169 ; Shelberry v. Bngg», 2 Vern. 249 ; aad see Dowlin v. M'Dousall, I S. Sf S. 367. 06 FRAME AND END OF THE suit, as in the case(/*) of several creditors(2), plain- tiffs on behalf of themselves and other creditors(ar). 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 rosts(i/). 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 therefore the whole advantage of the proceedings survives to her ; so that if any judgment has been obtained, even for costs, she will be entitled to the benefit of \i(2). But if she takes any [*60] *step in the suit after her husband's death, she makes herself liable to the costs from the beginning. If a female 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 proceedings ought to be in the (u) As another e:sample of the pro- & Stu. 491, 493. position in the text, the case of a suit (y) Treat, on star-cbam. p. 3. sect, by joint-tenants generally, may be 3. Harl. MSS. njentioned.(l) See 11 Ves. 309. (z)Coppinv. , 2 P. Wms, 1 Meriv. 364. 49(i. (.r) 1 Meriv. 364. Burncy v. (a) Godkin and others against Morgan, 1 Sim. & Stu. 358. 1 Sim. Earl Ferrers, 1772. (1) If two joint tenants exhibit (heir bill and one releases, this will not abate the suit as to the other. 2 Freem. 6. (2) And see Edwards on Parties, 169, pi. 75. A creditor who ha& been permitted to come in, may revive in cases where the suit abates. Pitt V. Creditors of D. of Richmond, \ Eq. Ca. Abr. pi. 7. SEVERAL KINDS OF BILLS. 97 halme and with the description which she has ac- quired by the marriage. A decree on a bill of interpleader may terminate the suit as to the plaintiff, though the litigation may continue be- tween the defendants by interpleader(&) ; and in that case the cause may proceed without revivor (c), notwithstanding the death of the plaintiff [d). (b) See above, p. 49, note n(l). to abate the suit. 3 Swanst. 138 ^ fc) Anon. 1 Vern. 351. and see Blackburn v. Jepson, 17 (d) Where on a bill filed by a cor- Ves. 473, S. C. 3 Swanst. 133. poration aggresjate, suing in their But where a bill is filed by a corpcH corporate capacity only, the names of ration sole, having a personal interest, the persons forming the same had the suit necessarily abates by his been inadvertently and unnecessarily death, so far as it affects his personal inserted, the members of the corpora- interest, and to that extent may be re- tion having had individually no in- vived by his personal representative ; terest in the subject, the death of a and if the suit affect the rights of his person so improperly named in the successor, such successor may obtain bill was not considered as operating the benefit of it in a different form(2). (1) See the practice upon an interpleader bill explained in the case of The City Bank v. Bangs, 2 Paige's C. R. 570. (2) If a mortgagor brings a bill to redeem, after an account is de- creed, report made, and divers proceedings are had in the cause, and the plaintiff is ordered to pay costs and deliver possession, and also after- wards the defendant, a mortgagee, dies, his executor may revive the suit and have the benefit of the order for costs. This was decided in Stowell V. Cole, 2 Vern. 396. But see the particulars of the case, for they were, in some respects, special. The heir of a party may revive. 1 Harr. Pr. 299, (6th edit.) Although by the death of the cestui que trust the suit abates as to him, yet, if there be a decree against him and his trustees to convey, &c., the trustees are obliged to convey, for the deatli of either part}' makes an abatement only quoad him&elf. lb, 297. Where there is a decree for an account, and then the cause abates by the defendant's death, the general practice allows the re- presentative to revive, as well as the plaintiff, both being in the na* ture of plaintiffs. Kent v. Kent, Prec. in Ch. 197. When the contest relates to real estate and is between joint heirs, and one dies without issue or will, leaving the others his heirs, no re- vivor is necessary. It is otherwise in cases of personalty, which passes to representatives. Shields v. Craig's executors, 6 Monroe's R. 743. 13 98 FRAME AND END OF THE 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 be- come defective, or abated by an event sub- [*61] sequent to its institution, *as there is in the distinction between the cases where a suit becomes defective merely, and where it Hke- wise abates. It seems, however, clear, that if any property, or right in Htigation, vested in a plain- tiffs is transmitted to another, the person to whom it is transmitted is entitled to vsupply the defects of the suit, if become defective merely, and to conti- nue it, or at least to have the benefit of it, if abated (1). It seems also clear, that if any property or right, before vested in a defendant^ becomes trans- mitted to another, the plaintiff is entitled to ren- der the suit perfect, if become defective, or to con- tinue it, if abated, againsttheperson to whom that property or right is transmitted. The means of supplying the detects of a suit, continuing it if abated, or obtaining the benefit of it, are : 1, by supplemental bill; 2, by bill of revi- vor ; 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 distinctions between the cases in which a suit may be added to, or continued, or the bene- fit of it obtained, by these several means, seem to be the following : I. Where the imperfection of a suit arises from a defect in the original bill, or in some of the pro- (1) Deas V. Thome, 3 J. R. 543. SEVERAL KINDS OF BILLS. 99 ceedings upon it, and' not from any event subse- quent to the institution of the suit, it may be add- ed to by a supplemental bill merely(c). Thus a *supplemental bill may be filed to obtain [*62] a further discovery(^) from a defendant, to put a new matter in issue, or to add parties, where the proceedings are in such a state that the origi- nal bill cannot be amended for the purpose(^). And this may be done as well after as before a (e) As a general rule, it has been ject, in ■which the plaintiff, upon facta laid down, that events which have stated in the answer of the defendant, happened subsequently to the filing amended his bill in order to meet the of the original bill, ought not to be defence which arose therefrom. — made the subject of amendment, but Knight v. Matthews, 1 Madd. R. that they should be brought before 566. the court by a supplemental bill. (y) Boeve v. Skipwith, 2 Ch. Rep. Humphreys v. Humphreys, 3 P. 142. Usborne v. Baker, 2 Madd. R. Wms. 349. Brown v. Higden, 1 379. Atk. 291. 3 Atk. 217. Pilkington (g) Goodwin v. Goodwin, 3 Atk. V. Wignall, 2 Madd. R. 240. Us- 370(2). There is the form of a bill borne v. Baker, 2 Madd. R. 379(1). of this nature in 1 Pres, Prac. of See a very peculiar case on this sub- Chan. 146. (1) Saunders v. Frost, 5 Pickering's R. 275 ; Barjield v. Kelly, 4 Russ. 355 ; King v. Sullock, 2 Sim. 469 ; Candler v. Pettit, 1 Paige's C. R. 168. If the original bill is sufficient for one kind of relief, and facts afterwards occur which entitle the complainant to other or more exten- sive relief, he may have such relief by setting- out the new matter in a supplemental bill. lb. But if an original bill is wholly defective, and there is no ground for proceeding upon it, the same cannot be sustained by filing a supplemental bill, founded upon matters which have subse- quently taken place. lb. ; Stafford v. Howlelt, lb, 200. Nor by stating matter in the supplemental bill which ought to have been insert- ed in the original bill. Pritchard v. Draper, \ R. &( M. \^\. (2) Where a complainant amends his bill by a supplemental one, in order to bring other parlies before the court, he need not make the de- fendants in the original bill parlies to the supplemental one. Ensworth V. Lambert, 4 J. C. R. 605 ; MKown v. Yerks, 6 lb. 450 ; and see page 16, post. Still, if any of the original defendants have an interest in the supplemental matter, and justice requires they should be at liberty to join issue with the plaintiff upon the supplemental parts, then it is fit they should be made defendants. Bignall v. Atkins, 6 JVladd. 369. A supplemental bill is not to be filed where subpoenas have not been 100 FRAME AND END OF THE decree ; and the bill may be either, in aid of the decree, that it may be carried fully into execution (A), or that proper directions may be given upon some matter omitted in the original bill(i), or not (A) Woodward v. Woodward, Dick, See Giffard v. Hort. 2 Sch. & Lefr. 33. Or it may be filed for the pur- 386. pose of appealing against the decree. (i) 3 Atk. 133. ssrved in the original suit. Stewart v JVichoUs, 1 Tamlyn's C. R. 307. See (he form of a " supplemantal bill to obtain further discovery from " a defendant, to put new matter in issue and add parties, where the " proceedings are in such a state that the original bill canDOt be amend- " ed for that purpose." Willis, 326, and observe the notes there. Also, for other forms of supplemental bills, see 1 Equity Drafts. (2d edit.) 519. 522, 523. 525, 526, 527, 528. Also, a supplemental bill in aid of a decree. Willis, 340. Where much expense has been incurred in the suit, and it appears defective in form at the hearing, the court will direct the cause to stand over, with liberty to file a supplemental bill to correct the form. Mut-, ter V. Chauvel, 5 Russ. 42. After an original cause is at issue, the complainant cannot file a supplemental bill for the purpose of putting in issue and obtaining a discovery of facts and documents which might bave been introduced by amenLlment into the ojiginal bill, although the supplemental bill alleges that those facts and documents were not known to the complainant until after the original suit was at issue. Colclovgh V. Evans, 4 Sim. 76. In the late case of Dias v. Merle, (M. S.) Sep' teraber, 1833, Chancellor Walworth recognises Colclough v. Evans; and as his honor put forth an important and somewhat new principle, it is desirable to give an extract from the case. A replication had been filed and a decretal order of reference granted. The cause now came up on a motion for an injunction and receiver, grounded upon « supplemental bill. But the court considered there was no foundation whatever for this supplemental bill in that stage of the suit, as no fact had occurred to change tbe rights of the parties since the filing of the replication and the entering of the decretal order of reference. '• After an original cause," adds Chancellor Walworth, " is at issue, the ^' complainant may sometimes file a supplemental bill, in the nature of " a bill of discovery, for the purpose of obtaining evidence in support " of the matters put in issue in the original suit, of which he was not " apprized at the time of filing his replication. But that is strictly a " bill of discovery in aid of the original suit ; and should not pray re- SEVERAL KINDS OF BILLS. 101 put in issue by it, or by the defence made to it(fe) ; or to bring formal parties before the court(Z) : or it may be used as a ground to impeach the decree, which is the pecuhar case of a supplemental bill in the nature of a bill of review, of which it will be necessary to treat more at large in another place. But wherever the same end may be ob- tained by amendment, the court will not permit a supplemental bill to be filed(m). [*63] *When any event happens subsequent to the time of filing an original bill(n), which gives a new interest in the matter in dispute to any person not a party to the bill, as the birth of (k) Jones v. Jones, 3 Atk. 110. Atk. 817 ; see note (e) p. 62. h) Ibid. 217. (n) 1 Atk. 291. 3 Atk. 217. See (m) See Baldwin v. Mackown, 3 above, p. 62, note (e). " lief. The complainant obtaining the discovery in sucIj a case pays " the defendant's costs, as in other bills for discovery merely. The *' bill in such cases is in the nature of a supplemental bill in the origi- <' nal suit," His honor then went on to echo the rule laid down as above in Colclough v. Evans. After a defendant has put in his answer under oath, the complainant cannot, by the practice of the State of New-Yorl?, amongst amend- ments, be permitted to waive an answer on oath to the amended bill. The statute authorizing the complainant to waive the necessity of an answer on oath from the defendant (2 R. S. 175, ^ 44,) has introduced a new principle into the system of equity pleading. This provision was introduced into the revised statutes upon the suggestion of Chan- cellor Walworth, and was intended to leave it optional with the com- plainant to compel a discovery from the defendant in aid of his suit or to waire the oath of the defendant, if the complainant was unwilling to rely upon his honesty, and chose to establish his claim by other evi- dence alone. He has no right, therefore, to call upon the defendant for a discovery as to a part of the matters of his bill, and to deprive the defendant of the benefit of his answer on oath, as responsive to other matters stated in the bill. He must receive an oath as to every portion of the bill, or to no part thereof. Per Ch. Walworth in Burras v. Looker, (M. S.) 20 August, 1833. 102 FRAME AND END OF THE a tenant in tail, or a new interest to a party, as the happening of some other contingency, the de- fect may be supphed by a bill which is usually called a supplemental bill(o), and is in fact merely so with respect to the rest of the suit, though with respect to its immediate object, and against any new party, it has in some degree the effect of an original bill. If any event happens which occa- sions any alteration in the interest 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 mortgage or other par- tial 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 mere- ly, though in other respects, and especially against any new party, it has also in some degree the effect of an original bill(2). In all these cases the par- ties to the suit are able to proceed in it to a cer- tain extent, though from the defect arising [*64] *from the event subsequent to the filing of the original bill the proceedings are not sufficient to attain their full object. (o) It may here be remarked, that in respect thereof cannot be obtained such subsequent event must not only under the original bill. Adams v. be relevant, but material, see Milner Dowdirg, 2 Madd. R. 53(1). Mole V. Lord Harewood, 17 Ves. 144, and v. Smith, 1 Jac. & W. 645. of such a nature, that the reUef sought (1) Id this case it is said to be seldom necessary to file a supple- mental bill where (he original one is for an accouDt. (2) Bignall y. Atkins, 6 Mad. 369. SEVERAL KINDS OF BILLS. 103 If the interest of a plaintiff suing in auter droit entirely determines by death or otherwise, and some otlier 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 ad- ministrator, upon the determination of an admi- nistration durante minori cetatei^q) or pendente lite, the suit may be likewise added to and conti- nued by supplemental bill(r). For in these cases there is no change of interest v^hich can affect the questions between the parties, but only a change of the person in whose name the suit must be prose- cuted ; 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 tliat the defendants must answer the supplemental bill, and either ad- mit 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 neces- sary, though the decree be only a decree nisi, there must be a decree *on the supple- [*65] mental bill, declaring that the plaintiff in that bill is entitled to stand in the place of the plaintiff in the original bill, and to have the bene- fit of the proceedings upon it, and to prosecute the (p) Anon. 1 Atk. 88. S. C. 1 Atk. tion determined by death, a bill of re- 571. Brown v. Martin, 3 Atk. 218. vivor by a substquent administrator (9) See Jones v. Basset, Prec. in has been admitted. Gwen v. Cur- Ch. 174. Gary's Rep. 22. Stubbs zon, 2 Vern. 237. Huggins \.York V. Ltigh, 1 Cox, R. 133. Build. Comp. 2 Eq. Co. Ab. 3. (r) In the case of an administra- 104 FRAME AND END OF THE decree, and take the steps necessary to render it efrectual(5). If a sole plaintiff suing in his oion right is de- prived of his whole interest in the matters in ques- tion by an event subsequent to the institution of a suit, as in the case of a bankrupt or insolvent debt- or, whose whole property is transferred to assign- ees, 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 title which may be liti- gated, the benefit of the proceedings cannot be obtained by a supplemental bill, but must be sought by an original bill(w) in the nature of a supple- mental bill, which will be the subject of discussion in a subsequent page. [*66] *If a commission of bankrupt issues against any party to a suit, or he is dis- charged as an insolvent debtor, his interest in the subject is, unless he is a mere trustee, generally transferred to his assignees(a:) (1); and to bring (s) Brown v. Martin, 3 Atk. a plaintiff suing in his own right be- 218. comes a bankrupt, that, as a general (f) Upon the question whether the rule, the suit abates. And the truth bankruptcy of a sole plaintiff is, or of the proposition will be more appa- ought to be considered, an abatement rent from what is further stated in of a suit, some difference of opinion the next page of the text- has prevailed. See Sellas v. Dawson, (w) See Harrison v: Ridley, Com. Rep. 1 Atk. Sand. ed. 263. note, Rep. 589. 4 Madd. 171, and the cases of Han- (x) 9 Ves. 86. 1 Ves. & B. 547; dull V. M-umford, 18 Ves. 424, and and see, as to the exceptions, Cope- Porter V. Cox, 5 Madd. 80, in which man v. Gallant, 1 P. Wma. 314. revivor seems to have been thought 2 P. Wms. 318. Ex parte Ellis, I necessary. But as it cannot be Atk. 101. 1 Atk. 159. 234. 6 Ves. stated a priori, that there will not be 496. Joy v. Campbell, 1 Sch. &. any surplus of the bankrupt's estate Lefr. 328. Ex parte Martin, 19 after satisfaction of the creditors, who Ves. 491. S. C. 2 Rose, B. C. 331. may prove under the commission, it Ex parte GiUett, 3 Madd. 28. •eems impossible to insist, even where (1) Moran v. Hays, 1 /. C- R. 339. Every argument which goes to show an insolvent to be a proper party before his discharge, applies SEVERAL KINDS OF BILLS. 105 them before the court a supplemental bill is ne- cessary, to which the bankrupt or insolvent debtor is not usually required to be a party(l), although a bankrupt may dispute the validity of the commis- sion issued against him(?/). But, if plaintiff, a bank- rupt may proceed himself in the suit, if he disputes the validity of the commission, or a bankrupt or insolvent may proceed if the suit is necessary for his protection(2;), or if his assignees do not think (y) The commission, however, can- 140. Ex -parte Price, 3 Madd. 228. not be actually impeachud by him in Ex -parte Ranken, 3 Madd. 371. Ex the suit : his proper mode of dispu- parte Bass, 4 Madd. 270. Bayle-y tin. S. C. neral rule that the bankruptcy of the 1 Rose, B. C 60. Ex parte Bryant, plaintiff causes an abatement, even 2 Rose, B. C 1. Ex parte Northam, where he sues in his own right. (2) 2 Ves. & B. 124. S. C. 2 Rose, B. C. with equal force, to prove that his assignees, after that event, are equally so. They stand, in relation to his property, precisely in the place of the insolvent. The assignees succeed to all the rights of the insolvent, which, in behalf of the creditors, they are bound to protect and defend. They have the same interest in the final issue of the cause ; and, in the character of assignees, they are entitled to be heard. Deas v. Thoi-ne^ 3 J. R. 551. In Osgood v. Franklin, 2 J. C. R. 16, two of the plain- tiffs had been discharged under an insolvent act, and another had died. The course taken was b}' a bill of revivor and supplement, whereby the assignees of the insolvents were made defendants, as well as the executors of the deceased party. It was objected, that they (the as- signees) ought to have been plaintiffs ; but the court determined the assignees could not be compelled to be plaintiffs. It was sufficient for the merit of the case that they were before the court. (1) In Collins v. Shirley, 1 Russ. Sf M. 638, a bill of foreclosure was filed against Shirley. He had taken the benefit of the insolvent act ; and yet he was made a party with his assignees. The J\l. R. de- cided that Shirley had been made a party improperly, and ought, there- fore, to have hi> costs. (2) A bankrupt cannot file a bill of redemption in respect of his right to the surplus. But where he has a clear interest, and the as- 14 106 FRAME AND END OF THE fit to prosecute the suit, and he conceives [*67] that it is for his *advantage to prosecute it(^/). Under those circumstances, however, he must hring the assignees before the court by supplemental bill, as any benefit which may be de- rived from the suit must be subject to the demands of the assignees(6), unless he seeks his personal pro- tection only against a demand which cannot be pro- ved, or which the person making the demand may not think fit to prove, under the commission issued against the bankrupt, or from which the insolvent debtor may not be discharged(c). And if by any event the whole interest of a de- fendant is entirely determined, and the same inte- rest is become vested in another by a title not de- rived from the former party, as in the case of suc- cession to a bishopric or benefice, or of the deter- mination of an estate-tail, and the vesting [*68] of a subsequent remainder *in possession, (a) Lowndes v. Taylor, 1 Maild. general rnle, abate the suit, it un- R. 423. S. C. 2 Rose, B. C. 3G5. questionably renders it defective, 18 432. If an uncertificated bankrupt Ves. 427; and this court upon a should be desirous that a suit in re- special application will dismiss the spect of the property should be com- bill, (but, as it seems, without costs,) menced or prosecuted, and his assign- unless the plaintiffmake his assignees, ees should refuse to adopt that course, or upon notice they make themselves it seems, that to attain his object, he parties thereto by supplemental bill must petition for leave to use their within a limited time. (1) Williams names for the purpose of the proceed- v. Kinder, 4 Ves. 387. Eandall v. ing, he indenuiifving them. 5 Ves. Mumford, 18 Ves. 424. \\ heeler y. .087. 5:*0. Bevjield v. Solomons, 9 Malins, 4 Madd. 171. Porter v. Ves. 77. 3 Madd. 158. Cox, 5 Madd. 80. S. C. 1 Buck. B. (b) Although, it seems, the bank- C. 469. Sharp v. Hulletl, 2 Sim. & ruptcy of a plaintiff", suing even in Stu. 496. his own right does not, at least as a (c) See above, note (a.) sio^nees refuse, the court, upon petition and an offer of indemnity, will compel Uiem to let iiim use their names. Spragg v. Binkes, 5 Ves. 590. (I) Query — Whether the insolvent might not, instead of proceed- ing by supplemental bill, petition the court to let Lim use their names in the suit, upon being indemnified.? Spragg y. Binkes, 5 Ves. 590. SEVERAL KINDS OF BILLS. 107 the benefit of the suit against the person be- coming 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 de- fendant, 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 bank- ruptcy or insolvency, the defect in the suit may be supplied by supplemental bill, (1) whether the suit is become defective merely, or abated as well as become defective(df). For in these cases the new party 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 proceedings from the beginning of the suit(c). In all these cases, if the suit has become abated as well as defective, the bill is commonly termed a ^^supplemental bill in the nature of [*69] (d) See Rutherford v. Miller, 2 miirht be dismissetl, was allowed to Anstr. 458. Russell v. Sharp, 1 be proper under the circumstances ; Ves. & B. 500. Whitcombe \. Min- which affords a ground, besides the chin, 5 Madd. 91. F'oster v. Dea- reasons already intimated in relation coK, 6 Madd. 5:>. Turner v . Robin- to the plaintiff becoming bankrupt, son, I Sim. & Stu. 3. In Lhe cases so far as they apply, for presuming of Monteith v. Taylor, 9 Ves. HIS, that the bankruptcy of the defendant and Rhode v. Spear, 4 Madd. 51, a does not abate the suit, but merely motion on the part of the defendant, renders it defective. after his bankruptcj, that the bill (e) 1 Atk. 89. (1) It was said in Slack v. Tf^dlcolt^ 2 Jla.inn, 50^, {hat a devisee may maintain an original bill in the nature of a bill of revivor, and thus obtain the benefit of the original proceedings, as well before as after there has been a decree in the origioal suit. 108 FRAME AND END OF THE a bill of revivor, as it has the effect of a bill of revivor in continuing the suit(l). 2. Wherever a suit abates by death, and the in- terest of the person whose death has caused the abatement is transmitted to that representative which the law gives or ascertains, as an heir at law, executor or administrator, so that the title cannot be disputed, at least in the court of chan- cery, but the person in whom the title is vested is alone to be ascertained, the suit may be continued by bill of revivor merely(2). If a suit abates by marriage of a female plaintiff*, and no act is done to affect the rights of the party but the mar- riage, no title can be disputed; the person of the husband is the sole fact to be ascertained, and therefore the suit may be continued in this case likewise by bill of revivor merely. When a suit became abated after a decree signed and enrolled {f)i it was anciently the prac- tice to revive the decree by subpoena in the nature (/) 1 Ves. 182. 184. (1) Westcolt V. Cady, 5 J. C. R. 334. (2) JSTicoll V. Roosevelt, 3 J. C. R. 60 ; Feomster v. Markham, 2 J. J. Marshall's R. 303. Where the cause of action against a de- ceased party does not survive, but some third person becomes vested with his interest or subject to his liabilities, the complainant maj' elect to proceed without reviving the suit against the representatives of the deceased party, provided a perfect decree can be made between the survivors without bringing such representatives before the court. Leggell V. Dubois, 2 Paige's C. R.2\\. If two bring a suit to redeem and one dies, the surviving plaintiff and heir of the deceased party cannot file an original bill ; but should proceed by bill of revivor. Saunders v. Frost, 5 Pickering's R. 275. See more as to bills of revivor, p. 76, 11, post, and notes there. A bill of revivor, when necessary, may be filed of course without SEVERAL KINDS OF BILLS. 109 of a scire facias(f)(l), upon the return of which the party to whom it was directed might show cause against the reviving of the decree(^), 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 tliat the person suing the subpoena was not entitled to the benefit of the de- cree. If the opinion of the court was in his favor he was dismissed with costs. If *it [*70] was against him(i), or if he did not oppose the reviving of the decree, interrogatories were exhibited for his examination touching any matter necessary to the proceedings(A;). If he opposed the reviving of the decree on the ground of facts which were disputed, he was also to be examined upon interrogatories, to which he might answer or plead ; and issue being joined, and witnesses ex- amined, the matter was finally heard and deter- mined by the court. But if there had been any proceeding subsequent to the decree this process was inefrectual(/), as it revived the decree only, and the subsequent proceedings could not be re- vived but by bill ; and the enrolment of decrees r/) 11 Ves. 311. (i) I Ca. in Cha. 273. (g) See 1 Vern. 426. Sayer v. (A) Anon. 2 Freem. 128. Saijer, Dick. 42. {l) Croster v. Wister, 2 Cha. Rep. (A) Brown v. Vermuden, 1 Ca. in 67. Thorn v. Pitt, Sel. Ca. in Cha. Cha. 272. 54. S. C. 9 Eq. Ca. Ab. 180. any order of the court granting permission to file such bill. Lewis v. Bridgman, 2 Sim. R. 405 ; Pendleton v. Fmj, 3 Paige's C. R. 206. As to the practice upon bills of revivor in Tennessee, see Lewis v. Outlaw, 1 Ouerton's R. 140. Upon a bill of revivor in Kentucky, a subpcKna is served. Sloid v. Higbees' executors, 4 Monroe, 145. (1) And tliis appears to be still the practice in the Iiislicourt of chancery. Cox v. J\l'J^amara, 1 Hogan, 12. 110 FRAME AND END OF THE being now much disused, it is become the practice to revive in all cases, indiscriminately, by bill(m). 3. If a suit becomes abated, and by any act be- sides the event by which the abatement happens the rights of the parties are affected, as by a set- tlement(w), or a devise(o) under certain circum- stances, though a bill of revivor merely may con- tinue the suit so as to enable the parties to prose- cute it, yet to bring before the court the whole matter necessary for its consideration, the parties must, by supplemental bill, added to and [*71] made part of the bill of ^revivor, show the settlement, or devise, or other act, by which their rights are affected(l). And, in the same manner, if any other event which occasions an abatement is accompanied or followed by any matter necessary 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 ne- cessary 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 re- vivor(^). 4. If the death of a party, whose interest is not 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 (in') See Dunn v. Allen, 1 Vern. (o) See Rylands v. Matouche, 2 426. Pract. Reg. 90. Wy. ed. Bligh, P. C. 566. (n) See Merrywether v. Mellish, (p) See Russell v. Sharp, 1 Ves. 13 Ves. 161. & Bea. 500. (1) See the form of such a bill in Willis, p. 352. SEVERAL KINDS OF BILLS. Ill real estate( 114 FRAME AND END OF THE cases of alienation jfenclente 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(c). Having considered generally the distinc- [*75] tions between *the several kinds of bills by which a suit become defective or abated may be added to or continued, 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. 1. A supplemental bill must state the original bill, and the proceedings thereon(l); and if the supplemental bill is occasioned by an event sub- sequent to the original bill, it must state that event, and the consequent alteration with respect the court, in a case of this kind, al- that the alienee may by supplemental lowed an alienee of a plaintiff to par- bill, in the nature of an original bill, ticipate in certain interlocutory pro- make himself a party to the suit, ceedings, without previously requir- Foster v. Deacon, G Madd. 59 ; and ing a supplemental bill to be filed for see Binks v. Binks, reported 2 Bligh, the purpose of making him a party P. C. 593, note, to the suit. Toosey v. Burchcll. 1 (e) See Garth v. Ward, 2 Atk. Jac. R. 159. 174. (d) It may be observed, however, (1) A supplemental bill ought to be filed as soon as the new matter sought to be inserted therein is discovered. And if the party proceeds to a decree after the discovery of the facts upon which the new claim is founded, be will not be permitted afterwards to file a supplemental bill in the nature of a bill of review founded on such facts. Pendleton V. Fay, 3 Paige's C. R. 204. SEVERAL KINDS OF BILLS. 115 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 ori- ginal bill, if it has not been before heard ; and if the cause has been before heard, it must be fur- ther heard upon the supplemental matter(y*). If indeed the alteration or acquisition of interest happens to a defendant, or a person necessary to be made a defendant, the supplemental 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(«") ; unless, which is fre- quently the case, the interests of the other de- fendants may be affected by that decree. Where a supplemental bill is merely for *the [*76] purpose of bringing formal parties before the court as defendants, the parties defendants to the original bill need not in general be made par- ties to the supplemental (/*). 2. A bill of revivor must state the original bill, and the several proceedings thereon, and the abatement ; it must show a title to revive(^), and charge that the cause ought to be revived, and C/) 2 Madd. R. 60. (h) See Broicn v. Martin, 3 Atk. (g) Sec Brown v. Martin, 3 Atk. 217(1). 217. (t) Com. Rep. 590(2> (1) And note 2, page 62, ante. (2) If a bill of revivor does not set forth so much of the original , bill as to show that the complainant has a title to revive the suit, it is demurrable. Phelpx v. Sjyroule^ 4 Simons, 318. 110 FRAME AND END OF THE stand in the same condition with respect to thi- parties in the hill of revivor as it was in with re- spect to tlie parties to the original bill at the time the abatement happened ; and it must pray that the suit may be revived accordingly(l)- It may be likewise necessary to pray that the defendant may answer the bill of revivor, as in the case of a re- quisite admission of assets by the representative of a deceased party(fc). In this case, if the defen- dant does admit assets, the cause may pro- ceed against him upon an order of revivor mere- ly ; but if he does not make that admission, the cause must be heard for the purpose of obtaining the necessary accounts of the estate of the de- ceased party to answer the demands made against it by the suit ; and the prayer of the bill, there- fore, in such case usually is, not only that the suit may be revived, but also, that in case the defend- ant shall iiot admit assets to answer the purposes 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 put- ting in an answer, or after an answer to which ^exceptions have been taken, or [*77] after an amendment of the bill to which no answer has been given, the bill of revivor, though requiring in itself no answer, must pray (A:) Prac. Reg. 90. Wy. ed(2). (1) Where one complainant files a bill of revivor, another cannot take the same course. A second bill would be stricken off the files. And even a defect of parties in the first bill affords no reason for keep- ing the second on file. Livescy v. Livcseij, 1 Jt. Sf M. 10. (2) Douglass V. Shermcm, 2 Paige's C. R. 358. Sec the form of such a bill. Jf'illis, 345. SEVERAL KIINDS OF BILLS. 117 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 tlie answer of the former defendant extend to, or the amendment re- maining unanswered(l). (I) The revised statutes of the Stale of New-York contain pro- visions which do away with tlie bill of revivor in many instances, and simplify, in other respects, the practice in case of death. No suit in chancer}' is to abate by the death of one or more of the complainants or defendants when the cause of action survives, but, upon j satisfactory suggestion of such death, the suit is to proceed for oragainsli the surviving parties. 5 M. S. 184, J 107. The cases intended to be| embraced by this section, are those where tiie right of the deceased party vests in some one of the survivors ; so that a perfect decree may be made as to every part of the subject of litigation, without any alto- \ ration of the proceedings or bringing any new parties before the court. ' Such is the case of a suit brought by or against two or more executors, trustees or joint tenants, where, on the death of one, the whole right of action or ground of relief survives in favor of or against the other. In such cases, there is, in fact, no abatement as to the survivors ; and upon a proper application by either party, on affidavit, showing the fact of the death, and that the cause of action has survived, the court will order the suit to proceed. Leggelt v. Dubois, 2 Paige's C. R. 212; and see Brown v. Story, lb. 594. No bill of revivor is necessary to revive a suit against the represen- tatives of a deceased defendant ; but the court, upon a petition, may order it to stand revived. 2 R. S. 184, ^ 108. This section provides for another class of cases where some of the parties survive, and the rights of the parties dying do not survive to them, but some other persons become vested with the rights and ijiterests, or are subject to the lia- bilities of those who are dead. In such cases, the complainants may proceed without making those persons parties, provided a decree can be made between the surviving parties without bringing such persons be- fore the court. The decree, in that case, will not affect those in whom the rights of the deceased parties have become vested. LeggcU V. Dubois, supni. In cases where a complainant dies, and the cause of action does not survive, his representatives may, on affidavit of such death, and on mo- tion in open court, be made complainants and be permitted to amend the bill. 2 R. S. 184, ^ 115; WkUe v. Buloid, 2 Paige's C. R. 475. When the representatives do not cause themselves to be made com- 118 FRAME AND END OF THE Upon a bill of revivor the defendants must an- swer 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 plainants within eighty days after such death, the surviving complainant may proceed to make them defendants, as in cases where the repre- sentatives of a deceased defendant are made parties. 2 R. S. { 117 ; Wilkinson v. Parish, 3 Paige's C- R- 653. If there be no surviving complainant, or such an one neglects or refuses to proceed against such representatives, the court, upon petition of the original defendant, may order such representatives to show cause why the suit should not stand revived in their names or the bill be dismissed, so far as the interest of such representatives is concerned. J 1 IB, 119. If a defendant dies where the cause of action does not survive, and the complainant neglects or refuses to procure an order for the revival of the suit, the court may order it to stand revived upon the petition of a surviving defendant against the representatives of the deceased party. } 120, 121. These provisions of the statute, authorizing the revival of a suit on motion or petition, extend only to those cases where, by the former practice of the court, the proceedings could be revived and continued by a simple bill of revivor. Douglass v. Sherman, 2 Paige's C- R- 358. Under the above provisions a suit in chancery may be revived by a surviving complainant against the infant representatives of a deceased complainant. fVilkinson v. Parish, supra. If the parties against whom a suit is sought to be revived are beyond the jurisdiction of the court, or cannot be found to be served with the order, a formal bill of revivor must be filed, and the like proceedings had to obtain their ap- pearance as are required in the case of absent, concealed or non-resi- dent debtors, lb. Partition suits are embraced by these sections. Ih. As to office practice and service under these provisions,~see the sections themselves and all the cases above referred ; and see Pruen v. Lunn, 5 Russ.3 . It may be necessary to revive a suit against the personal representa- tives of a deceased defendant, who has disclaimed, and against whom the complainant waives all relief. Glassington v. Thicaites, 2 Russ. 458. As to reviving on a conditional decree against a defendant, in case one of the complainants dies, see Executors qfJU'Gough v. Executors of Hanninglon, 1 Hogan, 23. SEVERAL KINDS OF BILLS. 119 obtained an order for further time to answer, the suit may be revived without answer, by an order made upon motion as a matter of course(/). The ground for this is an allegation that the time al- lowed 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 reviving 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 sub- mitting to the revivor, or even without that sub- mission, if he shows no cause against the revivor. Though the suit *is revived of [*78] course in default of the defendant's answer within eight days, he must yet put in an answer if the bill requires it ; as, if the bill seeks an admis- sion of assets, or calls for an answer to the origi- nal 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 (I) See Harris v. Pollard, 3 P. necessary to warrant any proceeding Wms. 348. after abatement, 1 Ves. 186. Roun- (in) The court, after abatement of dell v. Currer, 6 Ves. 350, except a suit, has acted without revivor in proceedings to compel revivor, or to some instances, where the rights of prevent injury to the surviving par- the parties have been fully ascertain- ties, if the persons entitled to revive ed by decree, or by subsequent pro- neglect to do so(l). ceedings ; but in general revivor is (I) And see Leggett v. Dubois, 2 Paige's C. R, 2i3 ; and note 1, at p. 58, ante. 120 FIIAMK AMD END OF THE necessary to prevent the furtiier proceeding on the bill^ and which will be noticed in treating of the different modes of defence to bills of revivor ; and though these steps should not be taken, yet if the plaintiff docs not show a title to revive, he can- not linallj haxe the benefit of the suit when the determination of the court is called for on the sub- ject(/«). 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 repre- sentative does not become the representative of the testator, the suit may be revived against the representative of the testator, and the assets of the testator may be pursued in his hands, without re- viving against the representative of the original defendant(o). After a cause is revived, if the person reviving linds the original bill to require amendment, and the pleadings are in such a state that [*79] amendment of the *bill would be permitted if the deceased party were living, the bill may be amended notwithstanding the death of that party, and matters may be inserted w^hich ex- isted before the original bill was filed, and stated as if the deceased party had been living(/?). After a decree, a defendant may file a bill of revivor, if the plaintifis, or those standing in their (n) 3 p. Wins. 318(1). (yj) Kcli-ps v. Paine, 15 March, (o) 3 Atk. 773 ; and see Johnson 1745. Philips v: Derbie, Dick. 98. V. Peck, 2 Yc^. 465. (1) A purciiasor iiikler a suit caiiiiol. revive. Backhouse v. J\Iid- (llclun, BVceni. 132. SEVERAL KINDS OF BILLS. 121 Hght, neglect to do ii(q)- For then the rights of the parties are ascertained, and plaintiffs and de- fendants are equally entitled to the benefit of the decree, and equally have a right to prosecute it(r). The bill of revivor in this case, therefore, merely substantiates the suit, and brings before the court the parties necessary to see to the execution of the decree, and to be the objects of its operations, rather than to litigate the claims made by the se- veral parties in the original pleadings(5), except so far as they remain undecided. In the case of a bill by creditors on behalf of themselves and other creditors, any creditor is entitled to revive(/). A suit become entirely abated may be *re-[*80] vived as to part only of the matter in litiga- tion, or as to part by one bill, and as to the other part by another. Thus, if the rights of a plaintiff in a suit upon his death become vested, part in his real, and part in his personal, representatives, the real representative may revive the suit so far as concerns his title, and the personal so far as his demand extends(««). 3. A bill of revivor and supplement is merely a compound of those two species of bills, and in its (7) The general proposition, that 691, and Lord Stowell v. Cole, 2 a defendant or his representatives, if Vcrn. 296. he or they have an interest in the (s) See Finch v. Lord Winchelseaj further prosecution of the suit, may 1 Lq. Ca. Ab. 2. revive, if the plaintiffs, or those stand- (I) That is, of course, after he hath ing in their right, neglect so t,i do, proved his debt. See Pitt and the seems to be now fully established, creditors of the Duke of Richmond, See Ke7it v. Kent, Prec. in Chan. 1 Eq. Ca. Ab. 3; and see Dixon v. 197. 1 Eq. Ca. Ab. 2. 2 Vern. 219. lV>/att, 4 Madd. 392. 1 Sim. and 297. Williams v. Cooke, 10 Ves. Stu. 494. And, in such a suit, the 406. Uorwood\. Schmcdcs, 12 Ves. personal representative of one of the ■311. And see Gordon v. Bertram, plaintiffs deceased may revive. Bur- I Meriv. 154. Adamson v. Hall, 1 ney v. Morgan, 1 Sim. and Stu. 358. Turn. R. 258. BoUon v. Bolton, 2 (m) Ferrers v. Cherry, 1 Eq. Ca, Sim. & Stu. 371. Ab.3, 4. (r) See, however, ^Anon. 3 Atk. 16 122 FRAME AND END OF THE separate parts must be framed and proceeded upon in the same manner. III. Bills in the nature of original bills, though occasioned by former bills, are of eight kinds : 1. Cross-bills. 2. Bills of review, to examine and re- verse decrees signed and enrolled. 3. Bills in the nature of bills of review, to examine and reverse decrees either signed and enrolled, or not, brought by persons not bound by the decrees. 4. Bills impeaching decrees upon the ground of fraud. 5. Bills to suspend the operation of decrees on special circumstances, or to avoid them on the ground of matter subsequent. 6. Bills to carry decrees into execution. 7. Bills in the nature of bills of revi- vor. And 8, bills in the nature of supplemental bills. 1. A cross-bill is a bill brought by a defendant against a plaintiflr(:c), or other parties in a [*81] former *bill depending, touching the matter in question in that bill(i/)(l). A bill of this (x) It has been decided, that a (y) For an example of the sense in cross-bill may be filed in Chancery which this proposition is to be nnder- to an original bill in the Exchequer, stood, see Hilton v. Barrcw, 1 Vca. Glegg V. Legh, 4 Madd. 193. Jr. 284, and see Prg^g'oW.v. WiV/ta^ns, Parker v. Leigh, C Madd^llS. 6 Madd. 95. (1) Galatian v. Erioin, 1 Hopk. 58. It seems, that a cross.bill may set up additional facts not alleged in the original bill, where they constitute part of the same defence, relative to the same subject matter. Underhill v. Van Cortlandt, 2 J. C. R. 339. 355. But it must be confined to the subject matter of the bill. J\lay v. Armstrong, 3 J. J. Marshall's R. 262. A bill which does not pray that the cause may be heard at the same time with another cause, and one decree be had in bolb, is not, iu form, a cross-bill. Wright v. Taylor, 1 Edwards' V. C-R. 226. Service of process is made, upon the filing of a cross-bill. Ander- son V. Ward, 5 Monroe's R. 420. Such a bill cannot contradict the assertions contained in the original answer. Hudson v. Hudson's SEVERAL KINDS OF BILLS. 123 kind is usually brought to obtain either a necessary discovery, or full relief to all parties. It frequently happens, and particularly if any question arises be- tween two defendants to a bill, that the court cannot make a complete decree without a cross-bill or cross-bills to bring every matter in dispute (1) completely before the court litigated by the proper parties, and upon proper proofs. In this case it be- comes necessary for some or one oC the defend- ants to the original bill to file a bill against the plaint ifi" and other defendants in that bill, or some of them, and bring the litigated point properly be- fore the court(2;). A cross-bill should state the ori- ginal bill, and proceedings thereon, and the rights of the party exhibiting the bill which are necessary to be made the subject of cross litigation, or the ground on which he resists the claims of the plain- tiff in the original bill, if that is the object of the new bill. But a cross-bill being generally considered as a defence(a), or as a *pro- [*82] ceeding to procure a complete determina- tion of a matter already in litigation in the court, the plaintiff is not, at least as against the plaintiff (z) There is an instance, however, plaintiff', and submits to perform the in which this court will, it seems, same, for, in such a case, if the court contrary to the old practice, give the decide ia favor of that stated by the benefit of a cross-bill to a defendant defendant, it wiil decree the same to upon his answer, namely, where the be executed fife v. Claydon, 13 original bill is for specific perform- Ves. 546. 15 Ves. 525. ance, and he proves an agreement dif- {a) 3 Atk. 812(2). ferent from that insisted on by the executors, 1 Randolph's R. 117. See more as to crots-bills, p. 83, and notes there. (1) Rogers v. MMacham, 4 J. J. Marshall's R. 37; Troup r. Haight, 1 Hopk. C. R. 239. (2) Galatian v. Erwin, supra. 124 FRAME AND END OF THE in the original bill, obliged to show any ground of equity to support the jurisdiction of the court(6). A cross-bill may be filed to answer the purpose of a plea puis darrein continuance at the common law. Thus, where pending a suit, and after re- plication and issue joined, the defendant, having obtained a release, attempted to prove it viva voce at the hearing, it was determined that the release not being in- issue in the cause, the court could not try the fact, or direct a trial at law for that purpose; and that a new bill must be filed to put the release in issue. In the case before the court, indeed, the bill directed to be filed seems to have been intended to impeach the release on the ground of fraud or surprise, and therefore to have been a proceeding on the part of the plaintiff'in the original bill. But it was clearly determined that without being put in issue in the cause by a new bill it could not be used in proof(c). Upon hearing a cause it sometimes appears that the suit already instituted is insufficient to bring before the court all matters necessary to enable it fully to decide upon the rights of all the parties. This most commonly happens where persons in opposite interests are co-defendants, so that [*83] the *court cannot determine their opposite interests upon the bill already filed, and the determination of their interests is yet necessary to (6) Dohlt V. Potman, Hardr. 160. 19. 3 Swanst. 472. 474. See as to And see Sir John Warden's case, filing a supplemental bill where % mentioned by Blackstone, in 1 Bl. matter has not been properly put in Rep. 132. issue. Jones v. Jones, 3 Atk. 110. 1 (c) Hayne v. Ilayne, 3 Gh. Rep. Jac. and W. 339. (1) See the form of such a bill, Willis, 364, SEVERAL KINDS OF BILLS. 125 a complete decree upon the subject-matter of the suit. In such a case, if upon hearing the cause the difficulty appears, and a cross-bill has not been ex- hibited to remove the difficulty, the court will di- rect a bill to be filed, in order to bring all the rights of all the parties fully and properly for its decision(l); and will reserve the directions or de- (1) In Field \. Schieffelin, 7 J. C. R. 250, it is said, that the court may, at a hearing, direct a cross-bill to be filed, when it appears that the first suit is insufficient to bring before the court the rights of the parties, and the matters necessary to a full and just determination of the cause. But see Slerrrj v. Servant, 1 lb. 62, and White v. Buloid, 2 Paige's C. R. 164. This latter case contains so much of practical value in relation to cross-bills, that an extract from it may be of ser- Tice: — "The practice in relation to cross-bills does not appear to be " well settled, either in this state or in the English court of chancery. " It may, therefore, be necessary to look into the origin of the practice " and notice the changes it has undergone, for the purpose of applying " its principles to the present practice of this court under the new mode " of taking proofs openly, or in open court before the circuit judges, ** as was done in the late equity courts. The bill and cross-bill were "derived from the civil law ; and the answer to the convenlio and re- " conventio in the Roman tribunal. If the reconventio came in before ,- " the litis^qntestalio OT^xmng^of t he issue in the suit, it was in time, " and both causes went on pari passu. The same probatory term was ♦' assigned to both ; and the same time was given for publication. It " is from this we find in the old books of practice, that the cross-bill N/ " should be filed before or at the time of answering the original bill, w " which generally answered to the litis conteslalio of the Roman law. '^ /^ ,/^ *' If it did not come in before that time, the causes could not proceed "together, as tiie original cause was then gone i\ om \.\\e prcetorian ''forum to ihejudices. (2 Bro. C. Sf A. L. 348. How. Eq. side, 287.) " Where the reconventio or cross-bill came in after the litis contestatio \ " or joining of issue, it did not stop the complainant in the examination " of his witnesses, unless the defendant in the reconventio was in con- " tempt for not answering. If it came in even after publication, it was " not too late, but the party must go to a hearing on the testimony " taken in the original suit, and on the answer of the defendant in the " cross suit ; because, after publication passed, no witnesses could be w examined to the same matter as to which proofs had already been 5^ X /?A . ^- > (/^.^-^ ) X 126 FRAME AND END OE THE clarations which it may be necessary to give or make touching the matter not fully inHtigationby the former bill, until this new bill is brought to a hearing( 134 FRAME AND END OF THE In a bill of this nature it is necessary to state(/) the former bill, and the proceedings thereon; the decree, and the point in which the party exhibit- ing the bill of review conceives himself [*89] aggrieved by *it(^); and the ground of law, or matter discovered, 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(A), and the fact of the discovery(z). It has been doubted whether, after leave given to file the bill, that fact is travers- able; but this doubt may be questioned if the de- fendant to the bill of review can oflfer 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(A:). The bill may pray simply that the decree may be reviewed, and reversed in the point complained of, if it has (y) 2 Pr»x. Aim. Cur. Can. 520. upon a supplemental bill in nature of 2 Chan. Prac. 62I(. a bill of review, the cour;, seemed to (g) 4 Vin. Ab. 414. PI. 5. be of opinion that the fact of the dis- (h) See 1 Vern. 292. Boh. Curs, covery was traversable ; and not being Cane. 396, 397(1). admitted by the defendant, ought to (£) Hanbury against Stevens, ha^e been proved by the plaintiff to Trin. 1784, in chancery. entitle him to proceed to the hearing (^) In the above-mentioned case of of the cause. flanbury and Stevens, which was tial compliance with the order of the court as will save the party from an imputed neglect or contempt, and authorize the filing of a bill of review. Taylor v. Person, 2 Hawks' R. 298. (1) And it has been said, in the chancery of Kentucky, that a bill of review will not be granted upon a fact which was formerly in issue in the same cause or evidence newly discovered, unless the evidence be in writing or of record. Head v. Had's administrator, 3 A. K. Marshall's R. 121. Also, tliat where, upon a bill of review, the de- cree is reviewed or impeached, the defendants, provided the decree was obtained by default, should be permitted to file answers or to plead, so that the matter of the original bill may be litigated between the parties, Mfiy^sback V. Fountleroy, 3 J. J. Marshall's R. 536. SEVERAL KINDS OF BILLS. 135 not been carried into exccution(Z). If it has been carried into execution the hill may also pray the further decree of the court, to put the party com- plaining 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(>w). The bill may also, if the original suit has become abated, be at the same time a bill of revivor(w)( 1). A supple- mental *bill may likewise be added, if any [*90] event has happened w hich requires it(o) ; 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( p). 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 nature of a bill of reviev^, where any new matter has been discovered since the decree(^). As a decree not signed and (l) 17 Ves. 177. (?) 2 Atk. 40. 178. 3 Atk. 811, ?m'^ 2 Chan. Prac. 634. Gartside v. Isherwood, Dick. 612. (n) 2 Prax. Aim. Cur. Cane. 522. 17 Ves. 177(2). Or, at the least, (0) price V. Kcyle, 1 Vcrn. 135. the new matter should have been (Jis- (p) Sands \. 2'horowgood, Hutdr. covered after the time when it could 104. have been introduced into the origi- (1) Such a bill must be founded upon an afSdavit of the discovery of new matter, and cannot be filed without the special leave of the court. Neither can it be filed without making the deposit, or giving the security required upon a bill of review. Wilkinson v. Parish, 3- Paige's C. R. 653. (2) Wiser v. Blachly, 2 J. C. R. 488; Lawrence v. Cornell, 4 J. C. R. 542. 136 FRAME AND END OF THE enrolled may be altered upon a rehearing, without the assistance of a bill of review, if there is suffi- cient matter to reverse it appearing upon [*91] the former proceedings(r), *the investiga- tion of the decree must be brought on by a petition of rehearing(5) : and the office of the sup- nal cause. Ord v. Noel, 6 Matld. ^/iV/orcZ, 12 Ves. 456, unless upon a 127, and see Barringtons. O'Brien, petition of rehearing, or upon a bill 2 Ball & B. 140. of review, or bill in the nature of a (r) The rehearing, which is thus bill of review, 4 Madd. 32 ; Grey v. far alluded to, not being sought in re- Dickenson, 4 Madd. 464 ; Bracken- sped to any new matter, is obtained bury v. Brackenbury, 2 Jac. & W. upon certificate of counsel, 18 Ves. 391; TFiVh's v. ParWrison, 3 Swanst. 325, by a petition merely, which 233; Brookjield v. Bradley, 2 Sim. states the case as brought before the & Stu. 64, according as the decree court when the decree was made, has or has not been signed and en- Wood V. Griffiths, 1 Meriv. 35, and rolled ; and as it is sought to have the grounds on which the rehearing the case reheard as originally brought is prayed, 1 Sch. & Lefr. 398(1). before the court, or accompanied with And here it may not be improper to new matter. See Text, notice, that the court will not, without (s) Taylor \. Sharp, 3 P. Wms. consent, 3 Swanst. 234, vary a de- 371. 2 Ves. 598. Gore v. Purdon, cree after it has been passed and en- 1 Sch. and Lefr. 234. 2 Jac. and W. tered, except as to mere clerical er- 393. It must be remarked that where rors. Lane v. Hobbs, 12 Ves. 458 ; there is new matter, a petition to re- Weston V. Haggerston, Coop. R. hear the original cause must be pre- \2\; Hawker \. Duncombe, 2 M&M. sented, and be brought before the R. 391 ; 3 Swanst. 234 ; Tomlins v. court at the same time as the supple- Palk, 1 Russ. R. 475(2), or, matters mental bill, in the nature of a bill of of course, 7 Ves. 293 ; Pickard v. review. Moore v. Moore, Dick. 66. Mattheson, 7 Ves. 293 ; Newhouse v. 17 Ves. 178(3). (1) A petitioQ of rehearing will be dismissed, if it suggests, as the ground of rehearing, facts not alleged in the pleadings. JVevinson v. Stables, 4 Russ. 210. See 112, 113, 114, and \15, Rules of J\r. Y. Chancery. A rehearing is not a matter of course, except in the cases provided for by rule. Travis v. Waters, 1 J. C. R. 48 ; Easthurn v. Kirk, 2 lb. 311 ; Land v. Wickham, 1 Paige's C. R. 256 ; Wiser v. Blachly, supra. (2) Where a decree has been entered by consent, there can be no rehearing. Monell v. Lawrence, 12 J. R. 521. Nor will it be granted after a decree to account, exceptions to a master's report taken and dis- allowed, acquiescence of the party therein, and a final report made up and confirmed. Ridg. Lap. Sf Scho. 602. (3) See the form of such a petition, 2 Harr. Chan. (ed. 1790) 32. The petition, it seems, should be presented previously to filing the sup- plemental bill. SEVERAL KINDS OF BILLS. 137 plemental bill, in nature of a bill of review, is to supply the defect which occasioned the decree upon the former bil](/)( 1). It is necessary to obtain the leave of the court to bring a supplemental bill of this nature(^i), and the same affidavit is required for this purpose as is necessary to obtain leave to bring a bill of review on discovery of new matter (x). The bill in its frame nearly resembles a bill of review, except that instead of praying that the for- mer 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 bill, at the same time that it is reheard upon the original bill, *and that the plain- [*92] tiff may have such relief as the nature of the case made by the supplemental bill requires(t/). 3. If a decree is made against a person who had 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(2^), relief may be obtained against 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 (t) Standish v. Radley, 2 Atk. bills of this kind, see Ord v. Noel, 6 177. Madd. 127. Bingham v. Dawson, 1 (w) Order, 17 Oct. 1741. Ord in Jac. R. 243. Cha. in ed. Bea. 366. 2 Atk. 139, n. (y) See 17 Ves. 177, 178. 3 Atk. 811. 2 Ves. 597, 598. {z) Brownv. Fermuden, 1 Ca. in Bridge v. Johnson, 17 Dec. 1737. Cha. 272. (x) As to the general principles (a) See 17 Ves. 178. adopted by the court in relation to (1) See the form of such a bill, rri/Zw, 376. Such a bill cannot be filed, where a party could have filed an ordinary supplemental bill, but waits doiug so until after a decree. Pendleton v. Fay, 3 Paige't C. R. 204. 18 138 FRAME AND END OF THE remainder-man in tail, or in fee, cannot defeat the proceedings against the tenant for Hfe but by a bill showing the error in the decree, the incompe- tency in the tenant for life to sustain the suit, and the accruer of his own interest, and thereupon 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 as- certained. (1). A bill of this nature, as it does not seek to alter a decree made against the plaintiff himself, or against any person under whom he claims, may be filed without the leave of the court(6)(2) 4. If a decree has been obtained by fraud, it may be impeached by original bill(c) without the [*93] leave of *the court() ; though in other cases the court, and the House of Lords, upon an appeal, seem to have considered that the law of the decree ought not to be examined on a bill to carry it into execu- (k) 2 Chanc. Rep. 128. 2 Vern. opened that decree. — In the case of 409. Sit John Warden v. Gerard, in Ch. (l) See peculiar case of Rylands v. 1718, the interests of an infant party hatouche, 2 Bligh, P. C. 566. being affected by the decree, the (m) Organ v. Gardiner, 1 Ca. in court refused to carry it into execution Cha. 231 ; Lord Carteret v. Paschal, upon a bill for that purpose, and made 3 P. Wms. 197; S. C. on appeal, 2 a decree according to the rights of the Bro. P. C. 10; Tonil. ed. Binks v. parties. See Lechmere v. Brasier, jBinArs, rep. 2 Bligh, P. C. 593, note. 2 Jac. & W. 287. But in Shephard (n) See, for example, Hamilton v. t. Titley, 2 Atk. 348, on a bill to Houghton, 2 Bligh, P. C. 1C4; and foreclose a mortgage, after a bill to see Sel. Ca. in Cha. 13. redeem, on which a decree had been (6) Att. Gen. v. Day, 1 Ves. 218. made, the bill of foreclosure insisting 1 Ves. 245 ; Johnson v. Northey, on an encumbrance not noticed in Prec. in Ch. 134. S. C. 2 Vern. 407. the former cause, the latter was on In the last case the Lord Keeper hearing ordered to stand over, that (1700) seemed to think that a bill by the question might be brought on by creditors to carry into execution a de- rehearing of the former cause, or by cree in favor of their debtor, had bill of review. 142 FRAME AND END OF THE tion(^). Such a bill may also be brought to carry into execution the judgment of an inferior court of equity(). So in the cases of bills brought by authors or their assignees to restrain the sale of books where the right which is the foundation of the bill is grounded on an act of parliament(^). And where a right ap- peared on record by a former decree of the court it was determined that it was not necessary to esta- blish it at law before filing a bill(^). Where a right prima facie and of common right is vested in the crown, it will receive the same protec- tion(r), and this principle may be applied to some of the cases mentioned in a preceding page. (0 Bush V. Western, Prec. in Rutland, 2 Bro. P. C. 39- Toml. ed. Chan. 530. 2 Sch. and Lefr. 209. (m) Whitchurch v. Hide, 2 Atk. (o) Horton and Malhy, in Chan: 391. WcU^ V. Smeaton, in Chan. 27 23 July, 1783. 3 Meriv. 624. May, 1784. ( p) 1 Ves. 476(2). (n) 1 Atk. 284. And see Duke of (q\ Ibid. Dorset v. Girdler, Prec. in Chan. (r) See 6 Ves. 713. Grierson v. 531. But see Welby v. Duke of Eyre, 9 Yes. 3il. 13 Ves. 508. (1) See the form of a demurrer, relating to a nuisance, which will answer in this case. Willis, 443. (2) And see Mawman v. Tegg, 2 Rust. 285. 204 DEMURRERS. A court of equity will thus protect private rights, or rights of those who may be comprehend- ed under one common capacity, as the inhabitants of a parish, or the tenants of a manor, which has been frequently done in bills to establish parochial customs of tithing disputed by the tithe-owner, and more rarely in bills to establish the customs of manors disputed by the lord(5) ; but will [*148] not establish or decree a perpetual *in- junction for the enjoyment of a right in contradiction to a public right, as a right to a high- way, or common navigable river, for that would be to enjoin all the people of England(<), although it will restrain a public nuisance at the suit of the attorney-general. A court of equity will also prevent injury in some cases by interposing before any actual injury has been suffered ; by a bill which has been some-, times called a bill quia timet, in analogy to pro- ceedings at the common law, where in some cases a writ may be maintained before any molestation, distress, or impleading(z^)(l). Thus a surety may (s) New Elme Hospital v. Ando- (t) Lord Hardwicke, in Lord ver, 1 Vern. 266. Baker v. Rogers, Pauconbergh and Pierse, 11th of Sel. Ca. in Cha. 74. Coicper v. May, 1753. 2 Eq. Ca. Ab. 171. Clerk, 3 P. Wms. 155. 2 Eq. Ca. Ambl. 210. Ab. 172. (m) Co. Litt. 100. a. (I) A bill quia timet will not lie, unless the complainant may be sub- jected to loss by the neglect, inadvertence or culpability of another. Randolph's administrator v. Kinney, 3 Randolph's R. 394. The preventive relief which this species of bill affords being re- quisite in those cases only where the property is of a perishable nature, it cannot, of course, be necessary in respect of the inheritance of real estate. Jerem.y's Eq. Jur. 350. A plea of a former recovery to a bill quia timet must show that the DEMURRERS. 205 file a bill to compel the debtor on a bond in which he has joined to pay the debt when due, whether the surety has been actually sued for it or not; and upon.a covenant to save harmless, a bill may be filed to relieve the covenantee under similar cir- cumstances(a:)( 1 ). 9. To administer to the ends of justice without pronouncing any judgment which may affect any rights, the courts of equity in many cases compel a discovery which may enable other courts to de- cide on the subject. The cases in which this jurisdiction is exercised will be considered in treat- ing of demurrers to discovery only. 10. When the testimony of witnesses is in dan- ger of being lost before the matter (o which it relates can *be made the subject [*149] of judicial investigation, a court of equity will lend its aid to preserve and perpetuate the testimony(i/) ; and as the courts of common law cannot generally examine witnesses except viva voce upon the trial of an action, the courts ot equity will supply this defect by taking and pre- serving the testimony of witnesses going abroad, or resident out of the kingdom(2:), which may be (a;) Lord Ranelaugh v. Hayes, 1 Donovan, 3 Ves. & Bea. 76 ; BoiOr Vern. 189, 190, and on the general den v. Hodge, 2 Swanst. 258 ; Chcr subject, see also 1 Ves. 283. Flight minant v. De la Cour, 1 Madd. R. V. Coofc, 2 Ves. 619. Green \. Pigot, 208; Deris v. Turnbull. 6 Madd. 1 Bro. C. C. 103. Brown V. Dud- 232; Baskett v. Toosey, 6 Madd. fcrtrf^e, 2 Bro. C.C. 321. 261: Angell v. Angell, 1 Sim. & (y) See above, 52, note (y). Stu. 83 ; Mendizabel v. Machado, 2 (z) As to the examination of wit- Sim. & Stu. 483. nesses resident abroad, see Cock v. same subject matter and the right to the same land was before decided upon. C'ttes y. Loflus' heirs, 4 Monroe's R. 441. (1) See the form of a bill iu such a case. Willis, 298, 206 DEMURRERS. afterwards used in a court of common law. As the object of this jurisdiction is to assist other courts, and by preserving evidence to prevent fu- ture litigation, there are a few cases in which the court will decline to exercise it. A demurrer to a bill seeking the benefit of it will therefore sel- dom lie(rt) ; and in a case where the court was of opinion that the defendant might demur both to the discovery sought and the relief prayed by a bill, it was held that to so much of the bill as sought to perpetuate the testimony of witnesses the defendant could not demur(6). But if the case made by the bill appears to be such on which the jurisdiction of the court does not arise, [*150] as if the matter to which the required *tes- timony is alleged to relate can be immedi- ately investigated in a court of law, and the wit- nesses are resident in England, a demurrer will hold(c) (2). Still, however, where from circum- stances, or the age and infirmity of witnesses, or their intention of leaving the kingdom, it has been probable that the plaintiflf would lose the benefit of their testimony, though he should proceed with (a) 1 Atk. 451. 571 ; IP. Wms. (6) Earl of Suffolk v. Green, 1 117; Tirrell \. Co, I Ro\. Ah. 383; Atk. 450. See Thorpe v. Macau- Mendaz v. Barnard, 16 May, 1735, l^y, 5 Madd. 218; Shakell v. Mi- on demurrer ; Lord Dursleyv. Fitz- caulay, 2 Sim. & Stu. 79. hardinge, 6 Ves. Jr. 251 to 266. (c) Lord North v. Lord Gray, See however. The Earl of Belfast Dick. 14. 1 Sim. & Stu. 89. V. Chichester, 2 Jac. & W. 439(1). (1) A bill to perpetuate testimony, to lands of which the complain- ants were out of possession, has been dismissed on demurrer. Smilhv. Ballard, 2 Hayward's (North Carolina) R. 289. (2) See the form of such a demurrer. Willis, 445. Also the form of a bill to perpetuate testimony. lb.2\\. And, the affidavit, Har' riiori's Pract. (Newl. ed.) 407. Look also at page 51. anU. DEMURRERS. 207 due diligence at law, the court has sustained a bill for their exainination()(l); for the plaintiff can have no decree against *them, nor can he read their answer [*161] 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 de- murrer to the bill would not have been allowed. A bankrupt made party to a bill against his as- signees touching his estate may demur to the re- lief, all his interest being transferred to his as- Geri. v. Skinners Comp. 5 Madd. Margravine of Anspach, 15 Ves. 173, particularly at p. 294. But see 159 f Bowles v. Stewart, 1 Sch. & Cookson\. Ellison, 2 BTo.C.C.2b2, Lefr. 209, ib. 227. 1 Meriv. 123: and the other subsequent cases on the And, this observation of course ap- necessity of answering fully. See plies more strongly where the parties below, chap. 2, sect. 2. part 3. may be interested, but cannot other- (Tn.) See Dowlin v. Macdougall, 1 wise be made defendants for want of Sim. & Stu. 367. privily. See 3 Barnard. 32. Doran {n) 2 Eq. Ca. Ab. 78. There are, v. Simpson, 4 Ves. 651. 6 Ves. 750. however, instances in which persons 9 Ves. 86. Salvidge v. Hyde, 5 not interested in the subject of dis- Madd. 138. S. C. 1 Jac. R. 151. pute, may by their conduct so involve (o) Steward v. E. I. Comp. 2 themselves in the transaction relating Vern. 380. See 14 Ves. 254. Good- to it, that they may be held liable to tnan v. Sayers, 2 Jac. & W. 249. costs ; and under such circumstances (p) Lingood v. Crouclier, 2 Atk. it seetns they cannot demur to the 395; Chicot v. Lequcsnc,''2 Yes. 2\b, bill, if the fraudulent or improper and the case of Ward v. Periam^ conduct be charged, and the cost? be cited ib. 316. 1 Turn. R. 131, note, prayed against them. See 7 Ves. Lord Lonsdale v. Littledale, 2 Ves. 288. 14 Ves. 252. Le Texier v. Jr. 451. 14 Ves. 252. (0 See the form of such a demurrer. Willis, 458^ 28 ^IB DEMURRERS. signees(^) : but it seems to have been 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 discovery, 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(r). Upon the same principle it seems also to have been considered, that where a person having had an interest in the subject of a bill has assigned that interest, he may yet be com- pelled to answer with respect to his own acts be- fore the assignment. It is difficult to draw a precise line be- [*162] tweenthe *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 commission of bankrupt had issued, and the persons claiming as assignees under the commission, charging that the commis- sion was a contrivance to defeat the plaintiff's ex- ecution, and that the debtor having by permission ofthe plaintiff possessed part of the goods taken in execution for the purpose of sale, and instead of paying the produce to the plaintiff had paid it to (g) Whiticorth v. Davis, 1 Ves. & him, he could not demur, ib. and 15 Bea. 545. S. C. 2 Rose, B. C. 116. Ves. 164. See also Kiiig v. Martin, Bailey v. Vincent, 5 Madd. 48. 2 Ves. Jr. 641. lAoyd ▼. Lander, 5 Madd. 282: (1) (r) Upon this passage, see 1 Ves. but, it seems, that if fraud were & Bea. 548, 549, 550. charged and costs were prayed against (1) And see Willis on Pleading, note (b), p. 458. DEMURRERS. 219 his assignees, a demurrer by the alleged bankrupt, , because he had no interest, and might be examined . ,^ as a witness, was overruled, and the decision af- ^^^.^ firmed on rehear ing(5). A difference has also been Ctr-'-^ taken where a person concerned in a transaction % ^/-4 - impeached on the ground of fraud has been made party to a bill for discovery merely(<) ; or as hav- ing the custody of an instrument for the mutual benefit of others(M). To prevent a demurrer a bill must in many cases not only show that the defendant has an interest in the subject, but that he is liable to the plaintiff's demands(a:). *As where a bill [*163] was brought upon a ground of equity by the obligee in a bond against the heir of the obligor, alleging that the heir having assets by descent ought to satisfy the bond ; because the bill did not expressly allege that the heir was bound in the bond, although it did allege that the heir ought to pay the debt, a demurrer was allowed(2/)(l). 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 de- murred, and the demurrer was allowed(2;). (s) Kin^ V. Martin and others, 25 fraudulent. July, 171J5, rep. 2 Ves. Jr. 641. (u) 3 Atk. 701. (t) Cotton V. Luttrell, Trin. 1738. (x) See Byves ▼. Ryves, 3 Ves. Bennet v. Vadc, 2 Atk. 324. See 343. above, p. 160, note (?i). See also (y) Crosseing v. Honor, 1 Vern. Bridgman v. Green, 2 Ves. 627. 180. 629, as to the evidence of a person {z) Lord Uxbridge v. Staveland, charged as particeps criininis, in sup- 1 Ves. 56. port of a transaction impeached as (1) See the form of such a demurrer. Willis, 460. 220 DEMURRERS. VII. If for any reason founded on the sub- stance of the case as stated in the bill the plaintiff is not entitled to the relief he prays, the defendant may demur. Many of the grounds of demurrer already mentioned are perhaps referable to this head ; and in every instance, if the case stated is such that admitting the whole bill to be true, the court ought not to give the plaintiff the relief or assistance he requires in the whole or in part, the defect thus appearing on the face of the bill is suf- ficient ground of demurrer(a) (1). VIII. It is the constant aim of a court of equi- ty to do complete justice by deciding upon [*164] and settling *the rights of all persons in- terested in the subject of the suit, to make the performance of the order of the court perfectly safe to those who are compelled to obey it, and to' prevent future litigation(6). For this purpose all persons materially interested in the subject ought generally to be parties to the suit, plaintiffs or de- fendants, however numerous they may be, so that the court may be enabled to do complete justice, by deciding upon and settling the rights of all persons interested, and that the orders of th*^ court may be safely executed by those who are (a) 7 Ves. 245. 2 Sch. & Lefr. Wms. 331. But see also CuUen v. 638. 6 Madd. 95. Duke of q,ueensberTy, \ Bro. C. C. (6) See Knight v. Knight, 3 P. 101. (1) A demurrer for want of equity cannot be sustained, unless the court is satisfied that no discovery or proof properly called for by or founded upon the allegations in the bill, can make the subject matter of the suit a proper case for equitable cognizance. Bleeker v. Bingham, 3 Paige's C. R. 246. See the form of a general demurrer for want of equity. Willi', 461. DEMURRERS. 221 compelled to obey them, and future litigations may be prevented(c)(l)(2). This general rule, however, admits of many qualifications. When a person who ought to be a party is out of the jurisdiction of the court, that fact being stated in the bill, and admitted by the defendants, or proved at the hearing, is in most cases a sufficient reason for not bringing him be- fore the court ; and the court will proceed with- out him against the other parties, as far as cir- cumstances will permit(^). It is usual, however, to add the name of a person out of the jurisdiction of the court as a party to the bill, so far as may be necessary to connect his case with that of *the other parties; and the bill may al- [*165] so pray process against him in case he should become amenable to such process; and it in fact he should become so amenable pending the (c) 3 P. Wms. 333, 334. 2 Atk. went v. Walton, 2 Atk. 510. Wil- 51. 7 Ves. 563. 12 Yes. 53. 1 Hams v. Whinyates, 2 Bro. C. C. Meriv. 262. Beaumont \. Meredith, 399 ;(3) and, if the disposition of the 3 Ves. & Bea. 182. 1 Sch. & Lefr. property be in the power of the other 298. parties, the court, it seems, will act (rf) 1 Ves. 385 ; and see Cowslad upon it. 1 Sch. & Lefr. 240. V. Cely, Prec. in Chan. 83. Dar- (1) Wendell v. Van Rensselaer, 1 J. C. R. 349 ; Wilson v. Hamil- ton, on appeal, 9 J. R. 442 ; Haines v. Beach, 3 J. C R. 459 ; Ens- worth V. Lambert, 4 lb. 605 ; Trescott v. Smith, 1 J\P Cord's Chan. R. 301 ; Johnson v. Rankin, 2 Bibb. 184 ; J^ewman v. Kendal, 2 Marsh. 234 ; Pope v. Melone, lb. 240 ; Hoy v. M-Jlurdy, 1 Lilt. 370 ; Whe- lan V. Whelan, 3 Cowen, 537 ; Fellows v. Fellows, 4 lb. 682 ; Colt v. Latnier, 9 lb. 320 ; Edwards on Parties, 1, 2, 3. (2) Althoug-h all persons interested must be made parties to bills for relief, jet this is not necessary as to bills for discovery. Trescott v. Smith, 1 jM-Cord's Chan. R. 3o\. But see Plunket v. Penson,2 Atk. 51. (3) Milligan v. JHilledge, 3 Crunch, 220; Lavihart v. Reilly, 3 Pesau. 590. 222 j DEMURRERS. suit he ought to be brought before the court, either by issuing process against him, if process should have been prayed against him, and if not, by amending the bill for that purpose, if the state of the proceedings will admit of such amendment, or by supplemental bill if they will not(c). If a per- son so out of the power of the court is required to be an active party in the execution of its decree, as where a conveyance by him is necessary, or if the decree ought to be pursued against him, as the foreclosure of a mortgagee against the original mortgagor, or his representative or assign, the proceedings will unavoidably be to this extent de- fecUve(f). A foreign corporation not amenable to the jurisdiction of the court falls within this de- scription, and a corporation in Scotland is consi- dered for this purpose as a foreign corporation(^). When the object of a suit is to charge the per- gonal property of a deceased person with a demand, ic.,t,^'^^^r::> ■ it is generally sufficient to bring before the court T///^jJl the person constituted by law to represent that L , J. r''^ property, and to answer all demands upon it(l); '[2. ^' ' ' '''^ and the difficulty of bringing before the court, in i '^'\/; .. some cases, all the persons interested in [*166] the subject of a suit, has also ^induced the 5^>y'^<' ). When the court has pronounced a decree for an account and payment of debts or legacies under which all creditors or legatees may claim, it will re- strain subsequent proceedings by a separate credi- tor or legatee, either at law or in equity, as the just (m) 6 Ves. 779 ; and see Morse v. made parties; but on such a hill by Sadler, 1 Cox, R. 352(1). one of several residuary legatees, he {n) See Boys v. Ford, 4 Madd. 40. must in general bring before the (o) To a bill by a specific or pecu- court all the other persons interested niary legatee fiir payment, neither the in the residue, after satisfaction of the residuary legatees, (see 1 Vern. 261 ; creditors and the specific and pecu- Wainwright v. Waterman, 1 Ves. niary legatees. 2 Ca. in Cha. 124(1). Jr. 311 ; 1 Madd. R. 448,) nor gene- Parsons v. Neville, 3 Bro. C. 0.365* rally, (see 2 Ca. in Cha. 124; and 16 Ves. 328. And see 1 Sim. & Stu' see Morse v. Sadler, 1 Cox, R. 352,) 106. any other of the legatees, need be (1} Brown v. Rickeils, 3 J. C. R. 553 ; Fish v. Howland, 1 Paige's C. R. 20 ; Pritchard v. Hicks, lb. 270 ; Ross v. Crarij, lb. 4\6 ; Hal- lettv. HaneU,3 lb. 15. (2) Also /6. 228 ; West v. Randall, 2 Mason's R. 181; Pritchard T. Hicks, 1 Paige's C. R. 270. 29 226 DEMURRERS. administration of the assets would be greatly em- barrassed by such proceedings(p). Where all the inhabitants of a parish had rights of common under a trust, a suit by one on [*169] behalf of *himself and the other inhabitants was admitted(5'). It has been doubted whether the attorney general ought not to have been a party to that suit(r), and accordingly, on a bill filed by some of the sufferers by a fire against the trustees of a collection made for the sufferers generally, it was objected at the hearing, that the attorney general ought to have been a party, and that otherwise the decree would not be conclusive; and the cause was accordingly ordered to stand over for the purpose of bringing the attorney ge- neral before the court(5). But where a bill was brought for distribution of private contributions, the objection that the attorney general was not a party was overruled(/). For the application of personal estate amongst next of kin, or amongst persons claiming under a general description, as the relations of a testator or other person, where it may be uncertain who are all the persons answering that description, a (p) 1 Sch. & Lefr. 299, and eases (r) See Att. Gen. v. Moses, 2 cited there, in note (6); and see Madd. R. 294. Douglas V. Clay, Dick. 393 ; Brooks (s) Overall v. Peacock, 6 Dec. ▼. Reynolds, Dick. 603 ; S. C. 1 Bro. 1737. See Wellbeloved v. Jones, 1 C. C. 183; Rush v. Higgs, 4 Ves. Sim. & Stu. 40. 638 ; Paxton v. Douglas, 8 Ves. (t) Lee y. Carter, 17 Nov. 1740, 520; Terrewest v. Featherby, 2 MS. N. reported 2 Atk. 84 ; but this Meriv. 480; Curre v. Bowyer, 3 point is not noticed by Atkyns. Kutt Madd. 456; Farrell\. Smith,2Bd.\\ \. Brown, 20 July, 1745; Anon 3 & B. 337; 1 Jac. R. 122; Lord v. Atk. 227; 1 Sim. & Stu. 43. The Wormleighton, 1 Jac. R. 148. attorney or solicitor general is usually (9) 1 Ca. in Cha. 269. Blackham a necessary party to suits relating to against The Warden and Society 0/ charity funds. See Wellbeloved v. Sutton Coldjield. See Att. Gen. v. Jones, 1 Sim. & Stu. 40: and above, Heelis, 2 Sim. & Stu. 67. pp. 22. 99. DEMURRERS. 227 bill has been admitted by one claimant on behalf of himself and the other persons equally enti- tled(M). And the necessity of the case has in- duced the court, especially of late years, fre- quently to depart from the general rule, * where a strict adherance to it would pro- [*170] bably amount to a denial of justice ; and to allow a few persons to sue on behalf of great numbers having the same interest(a:). There are also other cases in which the inte- rests 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 (u) See Ambl. 710 ; 1 Russ. R. & Stu. 106 ; Baldwin v. Lawrence, 166(1). 2 Sim. & Stu. 18 ; Gray v. Chaplin, (x) Chancey v. May, Prec. in Cha. 2 Sim. & Stu. 267 ;(2) but it seems 592 (Finch ed.); Gilb. 230; 1 Atk. that except, perhaps, in the common 284 ; Leigh v. Thomas, 2 Ves. 312 ; cases of this kind, it is necessary to Pearson v. Belchier, 4 Ves. 627; allege that the parties are too nume- Lloyd V. Loaring, 6 Ves. 773 ; Good rous to be individually named. Weld V. Blewitt, 13 Ves. 397; Cockburn v. ^on/tam, 2 Sim. & Stu. 91. See, V. Thompson, 16 Ves. 321 ; 3 Meriv. however, Van Sandau v. Moore, 1 510 ; Manning r. Thesiger, 1 Sim. Russ. R. 441(3). (1) But for the practice iu ordinary cases, see note (o), on the last page. (2) S. C. on appeal, 2 Russ. 126 ; Hallett v. Hallett, 2 Paige's C. R. 15. (3) Also Hichena r. Congreve, 1 Sim. 600; S. C. on appeal, 4 Russ. 562 ; Wendell v. Van Rensselaer, 1 J. C. R. 349. And such bill may be filed by some, even Ihuugh the illiggal acts complained of may be sanctioned by the majority. Bromley v. Smith, 1 Sim. 8. Some of the members of a partnership cannot file a bill, on behalf of themselves and Ihe others for a dissolution of the partnership; but all the members, however numerous, must be parties to the suit. Long r. Yonge, 2 Sim. 369 ; and see J\lacmahon v. Upton, lb. 473. As where one of several partners received a mortgage in his own name for a partnership debt and afterwards brought a bill in his separate capacit}' to foreclose the equity of redemption — Held, on demurrer, that the other partners ought to have joined. J^oyes v. Sawyer, 3 Vermont R. 160. ^ 228 DEMURRERS. 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 interested in the subject must be parties to a suit, is not to be understood as extending to all [*171] persons who *may be consequentially in- terested. Thus, in the case of a bill which may be brought by a single creditor for satisfaction of his single demand out of the assets of a deceas- ed debtor, as before noticed(l), although the in- terest of every other unsatisfied creditor may be consequentially affected by the suit, yet that inte- rest is not deemed such as to require that the other creditors should be parties ; notwithstanding, the decree if fairly obtained will compel them to admit the 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 decree. So in all cases of bills by creditors, or legatees, the persons entitled to the personal assets of a deceased debtor or tes- tator, after payment of the debts or legacies, are (x) 1 Atk. 283 ; 3 Atk. 247 ; dividuals representing a numeroua Chaytor v. Trin. Coll. Anst. 841 ; class, as against churchwardens re- ll.Ves. 444; and see Adair v. New presenting the parishioners in respect River Comp. 11 Ves. 4*29 ; 16 Ves. of a church-rate, it must be alleged 328 -. 1 Jac. & W. 369 ; 2 Swanst- that the suit is brought against them 282; but it appears that where it is in such representative character. 5 attempted to proceed against some in- Madd. 13. (1) At page 166. DEMURRERS. 229 not deemed necessary parties, though interested to contest the demands of the creditors and lega- tees; 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(i/). To a bill to carry into execution the trusts of a will disposing of real estate by sale or charge of the estate, the heir at law of the testator is deemed a necessary party, that the title may be quieted against his demand; for which purpose the bill ^usually prays that the will may ['**^172] be established against him by the decree of the court ; but if the testator has made a prior will containing a different disposition of the same property, and which remains uncancelled, and has not been revoked except by tlie subsequent will, it has not been deemed necessary to make the per- sons claiming under the prior will parties; though if the subsequent will be not valid, those persons may disturb the title under it as well as the heir of the testator. If, however, the prior will is in- sisted upon as an effective instrument notwith- standing the subsequent will, the persons claiming 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;). » (y) See the case of Bedford v. Brown v. Dowthicaite, 1 Madd. R. Leigh, Dick. 707. And see Lawson 448. V. Barker, 1 Bro. C.C. 303; Wain- (z) See on the general subject, vrtght\. Waterman, 1 Ves. Jr.313 ; Harris v. Ingledew, 3 P. Wms. yi ; 230 DEMURRERS. If no heir at law can be found, the king's attor- ney 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 sub- ject to iinpeachment(«). 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 juris- diction of the court, and that fact should [*173] be charged *and proved, the court will proceed to direct the execution of the trusts upon full proof of the due execution of the will and sanity of the testator ; though that evidence can- not 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 manner insure the title under it against his claims(6). Where real property in question is subject to an 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 in- terests, omitting those who may claim in remain- der or reversion after such vested estate of inherit- ance(c) ; and a decree against the person having Lewis V. Naugle, 2 Ves. 431 ; 1 Ves. Baron, 2 Atk. 120 ; S. C. Dick. 138. Jr. 29(1). (c) 2 Sch. & Lefr. 210 ; and see (a) See the case o{ Alt. Gen. v. Anon. 2 Eq. Ca. Ab. 166; 2 Ves. Mayor of Bristol, 3 Madd. 319 ; S. 492; Pelhamv. Gregory, 1 Eden. C. 2 Jac. & W. 294. R. 518; S. C. 3 Bro. P. C. 204. (6) See Williams v. Whinyates, 2 ToDil. ed. Bro. C. C. 399 ; and see French v. (1) Aho Jackson V. Rad/ord, 4 Price, 21 A; Fordham v. Rolfe, 1 Tamlym, C. R. 1 ; Wiser v. Blachly, 1 J. C. R. 437. DEMURRERS. 231 that estate of inheritance will bind those in remain- der or reversion, though by failure of all the pre- vious estates the estates then in remainder or re- version may afterwards vest in possession(rf). It has therefore been determined that a person so en- titled in remainder, and afterwards becoming en- titled in possession, may appeal from a decree made against a person having a prior estate of in- heritance, and cannot avoid the effect of the decree by a new bill(e). Contingent limitations and executory devises to persons not in being may in like manner be bound *by a decree against a person [*174] claiming a vested estate of inheritance ; but a person in being claiming under a limitation by way of executory devise, not subject to any prece- ding vested estate of inheritance by which it may be defeated, must be made a party to a bill affecting hisrights(/). If a person entitled to an interest prior in Hmi- tation 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 proceeding. And if by the determination of any contingency 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 (d) See Lloyd \, Johnes, 9 Vcs. (/) See Handeock \. Shaen, Co\h 37 ; 16 Ves. 326. P. C. 122, and A^ion. 2 Eq. Ca. Abr. (e) Giffard v. Hort, 1 Sch. & 166; S/ierri< v. ^»re/i, 3 Bro. C. C. Lefr. 386, ib. 411. 229. 232 DEMURRERS. estate should be determined, the person having the next estate of inheritance, and all the persons hav- ing prior interests, must be so brought before the court(o"). Trustees of real estate for payment of debts or legacies may sustain a suit, either as plaintiffs or defendants, without bringing before the court the creditors 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(^). The interests of persons claiming under [*175] the possession *of a party whose title to real property is disputed, as his occupying tenants, 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 againts that title.(2). Sometimes, if the existence of such rights is suggested at the hear- ing, the decree is expressly made without prejudice to those rights, or otherwise qualified according to {g^ See 2 Sch. & Lefr. 210. 75 ; and see Curteis v. Candler, & (A) See Franco v. Franco, 3 Ves. Madd. 123(1). (1) Bifield V. Taylor, 1 Bealti/s 72. 91. (2) Where a receiver is appointed, the ordinary direction is that the tenants attorn. If apphcalion be made to persons to attorn and they refuse, the course is not to make them parlies : but to move that they should attorn ; and then such persons must come in and inform the court whether they are tenants or not. Reid v. Middleton, 1 Turn. 4" R. 455. DEMURRERS. 233 circumstances. If therefore it is intended to con- clude 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 mort- gage, the person claiming it is usually made a party(e). 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 per- sons claiming the benefit of such prior charges; and therefore, to a bill for application of a surplus paid after payment of debts and legacies, or other prior encumbrances, the creditors, legatees, or other prior encumbrancers, need not be made par- ties(A;). And persons having demands prior to the creation of such a trust may enforce those de- mands against the trustees without bringing be- fore the court the persons interested under the trust, if the absolute disposition of the property is vested in the trustees. But if the trus- tees *have no such power of disposition, as [*176] in the case of trustees to convey to certain uses, the persons claming the benefit of the trust must also be parties(3). Persons having specific charges on the trust-property in many cases are also necessary parties ; but this will not extend to a general trust for creditors or others whose de- (i) See 2 Ves. 450(1). (k) See Anon. 3 Atk. 572(2). (1) Also Copis V. Middtelon, 2 Mad. R. 410. (2) Also Calverley v. Phelp, 6 J\lad. 228 ; James v. Biou, 2 S. 4" S. 600 ; Wallace v. Smith, 1 Bealtij, 385. (3) Fiih v. Howland, X Paige's C. R. 20. 30 :^34 DEMUKKERS. mands are not distinctly specified in the creation of tlie trust, as their number, as well as the diffi- culty of ascertaining who may answer a general description, might greatly embarrass a prior claim against a trust-property(/). If a debt by a covenant or oblioration binding the heir of the debtor is demanded against his real assets in the hands of a devisee under the statute 3 and 4 W. &/ M. c. 14. the heir must always be a party (???) ; and if any assets have descended to the heir they are first applicable, unless the assets devised are charged with debts in exoneration of the heir. The personal representative of the de- ceased debtor is also generally a necessary par- ty (??) as a court of equity will first apply the personal, in exoneration of the real, assets. [*177] *When there has been no general per- sonal representative, a special representa- tive by an administration limited to the subject of the suit has been required. In other cases where a demand is made against a fund entitled to exone- {l) As to cestui que trusts being making the persons claiming the parties, see £"irA-v.CZarA-,Pre. in Cha. other shares thereof parties to the 275: Adams v. St. Leger. 1 Ball & suit. Smith v. S-nou. 3 Madd. 10. B. 181 : Calterley v. Phelp, 6 Madd. (m) Gavler v. Wade, 1 P. Wms, 229; Douglass. HoTsf all. =1 Sim. &. 100: Warren v. StaueU, 2 Atk. Stu. 184(1). It mav heVe be observed, 125(2). that if the trust-pro[iertv be personal. (n) Knight v. Knight. 3 P. "Wms. and its amount be ascertained, one 331. 3 P. Wms. 350. 3 Atk. 406. entitled to an aUquot part thereof mav 1 Eq. Ca. Abr. 73. Love v. Farlie, sue the trustees for the same, without 2 Madd. R. lOl. 2 Sim. & Stu. 292. (1) Malin V. Malxn. 2 J. C. R. 238 ; Hickock r. ScrLbner, 3 J. C. 31 1 ; Johnson v. Hart, lb. 322 ; Elliot's executor r. Drayton, 3 Deaau, C. R. 29 ; Taylor y. JiJayrant, 4 Jb. 505 ; Marshall v. Beverly, 5 Wheaton, 313. (2) See the Rented Slatuies of the State o/.Y. F. , as to suits by creditors agaiost heirs. 2d toI. p. 454, J 42, el ttq. DEMTRRERS. 235 ration by general personal assets, if there are any such, a like limited administrator is frequently re- quired 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 al- though the limited administrator can collect no such assets by the authority under which he must act, yet as the person entitled to general adminis- tration must be cited in the ecclesiastical court before such limited administration can be obtain- ed, and as the limited administration would be de- termined by a subsequent grant of general admi- nistration, it must be presumed that there are no such assets to be collected, or a general adminis- tration would be obtained(o). 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 repre- sentative constituted there, vet as he mav not be amenable to the process of the court, and those assets must be ^subject to adminis- [*178] tration according to the laws of that country, such a representative is not deemed a (o) See tho case of Glass t. Ox- decease of the testator, be obtained to henham, "2 Atk. 1'21(1 ). Where pro- defend a suit, or to carrj' a decree in- hale has been granted, and the exc- to execution, by virtue of stat. 38 cator has subsequently departed out Geo. 3, c. 87. Rainsford^. Taynton, of the reahn, a special administration 7 Ves. 46(>('2). may, after twelve months from the (1) See also Coll v. Lasnicr, 9 Coicen's R- 320. (2) Provision is made bj the Revised Statutes of the State of New- Tork for the appointment of an administrator with the will annexed upon the departure or incompetency of an executor. 2d vol. 72, J 18, 19. 20, 21. 22. 236 DEMURRERS. necessary party to substantiate a demand against the real assets in England(/?). Where a claim on property in dispute would vest in the personal representative of a deceased person, and there is no general personal represen- tative 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 administra- tion of the effects of the deceased trustee limited to the trust-term is necessary to warrant the de- cree of the court for assignment of the term. - In some cases, when it has appeared at the hearing of a cause, that the personal representa- tive of a deceased person, not a party to the suit, ought to be privy to the proceedings under a de-* cree, but that no question could arise as to the rights of such representative on the hearing, the court has made a decree directing proceedings before one of the masters of the court, without re- quiring the representative to be made a party by amendment or otherwise ; and has given leave to the parties in the suit to bring a representative before the master on taking the accounts or other proceedings directed by the decree, which may concern the rights of such representative ; and a representative thus brought before the [*179] *master is considered as a party to the cause in the subsequent proceedings(^). In most cases the person having the legal title (p) See Jauncy v. Sealcy, 1 Vern. Stu. 284. 397, and Lowe v. Farlie, 2 Madd. R. (), or liable to forfeit- ure of a legacy in case of marriage without con- sent(j?), is married; or to discover any matter which may subject a defendant entitled to any of- fice or franchise to a quo warranto(q). But if the plaintiff is alone entitled to the benefit of the for- feiture, and expressly waives(r) it by the bill, as in the case of a bill for discovery of waste(5), a de- murrer will not hold; for the waiver gives the court a ground of equity to award an injunction, if the plaintiff sues for the forfeiture(<). If the disco- very sought is of a matter which would show the defendant incapable of having any interest or title ; as whether a person claiming a real estate under (k) Att. Gen. v. Duplessia, 2 Ves. Atk. 392. Chancey v. Fenhoulef, 2 287, ib. 494. Ves. 265. (0 1 Meriv. 400. (q) 1 Eq. Ca. Ab. 131, p: 10. (m) Tothill, 69. (?•) i Ves. 56. See above, p. 195, (n) Lord Uxbridgc v. Stavcland, note (e). 1 Ves. 56. (s) 2 Atk. 393. Att. Gen. v. Vin- (o) Monnins v. Monnins, 2 Chan, cent, 2 Eq. Ca. Ab. 378. S. C. cited Rep. 68. Com. R. 664(1). (p) Chauncey v. Tahourden, 2 (t) 1 Ves. 56. (1) See the form of a demurrer in a case where such forfeiture is itot waived. 2 Equity Draft. 82. 33 258 DEMURRERS. a devise was an alien, and consequently incapable of taking by purchase(z*) ; a demurrer will not hold. And where a devise over of an estate in case of marriage was considered as a conditional [*198] limitation *and not as a forfeiture, a de- murrer to a bill for a discovery of mar- riage was overruled(x). A defendant may in the same manner demur to a discovery which may subject him to any thing in the nature of a forfeiture(i/) ; as where a disco- very was sought whether the defendant was edu- cated in the popish religion, by which he might have incurred the incapacities in the statute 11 and 12 Will. III. (z) ; or whether a clergyman was presented to a second living, which avoided the first(«). But where a person against whom a commission of bankrupt had issued, had brought actions against the assignees under the commission, disputing its validity, and particularly insisting that he had not been a trader within the meaning of the bankrupt laws, and in those actions the validity of the com- mission had been established ; and the assignees filed a bill against him, stating these facts, and that being harassed by these actions, and threat- ened with other actions, they were not able to dis- (it) Att. Gen. v. Duplessis, Parker, Bac. Ab. 800 ; 1 Atk. 527; 2 Ves. 144. 394. The 18 Geo. III. c. 60, the 31 (x) 2 Atk. 393. Lucas v. Evans, Geo. III. c. 32, and the 43 Geo. III. 3 Atk. 260 ; 2 Ves. 265. c. 39, do not entirely remove these (y") 3 Atk. 457(1). incapacities. (z) Jones V. Meredith, Com. 661 ; (a) Boteler v. AUington, 3 Atk. and see ib. 664 ; Smith v. Read, 3 453. (1) Lambert v. The People, 9 Cowen's R. 578 ; and see pages 194, 195, ante. DEMURRERS. 259 tribute the effects under the commission, and therefort) praying a perpetual injunction to re- strain further actions, and requiring a discovery amongst other things, of acts of trading, a demur- rer to that discovery was overruled(6). *If a defendant has in conscience a right [*199] equal to that claimed by a person filing a bill against him, though not clothed with a perfect legal title, this circumstance in the situation of the defend- ant renders it improper for a court of equity to com- pel him to make any discovery which may hazard his title; and if the matter appears clearly on the face of the bill, a demurrer will hold(c). The most obvious case is that of a purchaser for a valuable consideration without notice of the plaintiff's claim(ill to 173. redeem on account of length of time (1) KaJi V. Smith, 6 Day's R. 421 ; 5lli Rule of South CiroUnu Pracl. I Dessau, 57. It must not be a speaking demurrer. A speak- ing demurrer is, where a fact is introduced which is necessary to sup- port the demurrer. Davies v. Williams, 1 Sim. 7. It is a general rule, that a speaking demurrer is bad ; i. c. when it contains argument ia the body of it ; if, for instance, the demurrer says, " in or about Iht "year 1770, tr/wc/t is upwards of Iwentij years before the billjiled." 35 274 DEMURRERS. [*214] murrer does not *go to the whole bill, it must clearly express the particular parts of the bill demurred to{h). If a demurrer is gene- ral to the whole bill, and there is any part, either as to the relief or tiie discovery, to which the de- fendant ought to put in an answer, it was general- ly considered that the demurrer being entire must beoverruled(i). But there are inslances(A;;) of al- lowing a demurrer in part(/); and a defendant (/i) Chetwyndy. Lindon, 2 Ves. part, (8 Ves. 403; 11 Vcs. 70; 17 451. Devonsher v. JSewenham, 2 Ves. 280)(2), it a|)pcars that where Sch. and Lefr. 199. And this must such a mode of defence has been re- be done, not by way of exception, as sorted to by several defendants joint- by demurring to all except certain ly, it may be good as to some of them parts of the bill, but by [)ositive defi- and bad as to the others, see 8 Ves. nition of the parts to which he there- 403, 404. by seeks to avoid answering. See (k) Koltv. Lord Somerville,2 Eq. Robinson v. Thompson, 2 Ves. and Ca. Ab. 759 ; Raddiffe v. Fursvian, Bea. 118. Weatherhead \. Black- 2 Bro. P. C. 514, Toml. ed. burn, 2 Ves. and Bea. 121. Sed vid. (OC-^) Although this is not now Hicks V Raincock, 1 Cox R. 40. the practice, the court will in some (i) 1 Ves. 248. Earl o? Suffolk v. instances, on the argument of a de- Chreen, 1 Atk. 450. Todd v. Gee, murrer, grant leave, upon overruling 17 Ves. 273. 1 Swanst. 304. 1 Jao. it, to the defendant to put in another R. 467(1). But though a demurrer less extended, (^Thorpe v. Macauley, cannot be good in part and bad in 5 Madd. 218), and will, even after it (2 Ves. Jr. 83.) A demurrer, also, to any thing but what appears on the face of the bill, is considered as a speaking demurrer. (2 Ku, 245.) Lube, 340. And as to other cases upon speaking demurrers, see Cawthorn v. Charlie, 2 Sim. Sf Stu. 129; Davis v. William*, I Sim. 8. (1) And see Verplanck v. Caines, 1 J. C. R. 57 ; Le Roy v. Veeder, ou appeal, 1 J. C. 417; Laight v. J\lorgan, on appeal, 1 J. C 429 ; S. C. 2 C. C. E. 344 ; Kimberly v. Sells ,3 J. C. R. 497 ; Livingston V. Livingston^ 4 lb. 294 ; Le Roy v. Servis, \ C. C. E. \ ; Higgin- botham v. Barnel, 5 lb. 184; Brian v. Brian, Vernon Sf Scriven't (Irish) R. 84; Graves v. Downey, 3 Monroe's R. 125 ; Castleman v. Veitch, 3 Randolph's R. 598 ; Cheetham v. Crook, 1 Jl'Cleland Sf Y. 307. (2) But see Verplanck v. Caines, supra. It has been said, in Ken- tucky, that a demurrer to a bill may be overruled in part and sustained iD part. Pope v. Stansbury, 2 Bitb, 484. DEMURRERS. 275 may put in separate demurrers to separate and dis- tinct parts of a bill for separate and distinct causes(m). For the same ground of demurrer frequently will not apply to different parts of a bill, though the whole may be liable to de- murrer ; and *in this case one demurrer [*215] may be overruled upon argument, and an- other allowed(^«). If the plaintiff conceives that there is not suf- ficient cause apparent on his bill to support a de- murrer put in to it, or that the demurrer is too ex- tensive, or otherwise improper, he may take the judgment of the court upon it ;(3) and if he con- ceives that by amending bis bill he can remove the ground of demurrer, he may do so before the de- murrer is argued, on payment of costs, which vary according to the state of the proceedings(o). But has been overruled, sometimes be in- Strafford, 3 P. Wnis. 148(2). duced to grant a similar indulgence. (o) Anon. Mosely, 301. 1 Ves. Jr. Baker v. Mellish, 11 Ves. 68(1). 448. Anon. 9 Ves. 221. 1 Aim. Cur. (m) 3 P. Wms. 149. Roberdeau v. Cane. 565. 1 Harrison Chan. Pract. Rous, 1 Atk. 544. 39. (n) North V. Earl and Countess of (1) This is not allowed in the New-York chancery, 49^/t Rule. See Rawley v. Eccles, 1 Sim. Sf Stu. 511. (2) Same principle recognised in Little v. Archer, 1 Hogan, 55. (3) Where the defendant files a faulty and informal demurrer to a bill in chancery, the complainant is not entitled to have it dismissed, but must set it down for argument. Hurst v. Hurst, C. C. U. S. Penn. Apr. 1806. JIS. Coxe's Dig. p. 145. There should be no joinder in demurrer. The cause is to be set down for argument of the demurrer. Beauchamp v. Gibbs, 1 Bibb's (Kentucky) R. 481. By the practice of the State of New-York, either party may Dotice a demurrer for argument. 47f/i Rule. On the argument, the complainant is bound by the case stated in the bill in relation to the discovery sought, and will not be allowed to main- tain his right to discovery upon a suggestion ore tenus at the bar not consistent with the case made io the bill. Little v. Archer, supra. 276 DEMURRERS. after a demurrer to the whole of a bill has been argued and allowed, the bill is out of court, and therefore cannot be regularly amended(p). To avoid this consequence the court has sometimes, instead of deciding upon the demurrer, given the plaintiff liberty to amend his bill, paying the costs incurred by the defendant; and this has been fre- quently done in the case of a demurrer for want of parties(5'). Where a demurrer leaves any part of a bill untouched, the whole may be amended notwithstanding the allowance of the [*216] ^demurrer ; for the suit in that case con- tinues in court, the want of which cir- cumstance 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 pn 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 (j>) See above, p. 14, note (i) Lord Edwards \ . Edwards, 6 Madd. 255 ; Coningshy v. Sir Jos. Jekyll, 2 P. and it seems probable that, even ayifer Wms. 3tKJ, and note, and Watkins v. allowance, the court might be induced, JSush, Dick. 701(1). under some circumstances, to set the (q) And the court, upon allowing cause on foot again, and to authorize a demurrer, will sometimes give the an amendment of the bill. See 11 Yes. plaintLft" leave to amend, see Mayor, 72(2). «i, I Vesr. 246. But it may be ant to file another. See Devonvher 278 DEMURRERS. on the first demurrer ; as on argument of a demur- rer, any cause of demurrer, though not shown in the demurrer as filed, may be alleged at the bar, and if good will support the demurrer(i/). V. Newenham, 2 Sch. & Lefr. 199. And, in consequence of the modern doctrine, that a defendant who sub- mits to answer must in general an- swer fully, see below, ch. 2, sect. 2, part 3(1), this court, in some instan- ces, on overruling a demurrer to dis- covery, instead of giving the defend- ant 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. Macaulcy, 5 Madd. 218. (y) As to demurrers ore tenus, see Ptjle V. Price, G Ves. 779. 8 Ves. 408. Dummer v. Corporation of Chippenham, 14 Ves. 245. 17 Ves. 216 ; Alt. Gen. v. Moses, 2 Madd. R. 294. 1 Swanst. 288 ; Knye v. Moore, 1 Sim. & Stu. 61 ; Hook v. Dorman, 1 Sim. & Stu. 227(2). (1) Page 306. (2) Garlick v. Strong, 3 Paige's C. R. 440. ♦CHAPTER II. [*218] SECTION II. PART II. Of Pleas. In treating of pleas the same order may be con* veniently pursued as has been already used in treating of demurrers. Pleas to original bills will therefore 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 necessa- rily be noticed ; the distinct pleas applicable pe- culiarly to the several other kinds of bill will be next mentioned ; 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 disco- very only, and these will necessarily involve the consideration of pleas to bills of discovery merely. A demurrer has been mentioned to be the proper mode of defence to a bill when any objection to 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(2;), if the defendant means *to take advantage of it, [*219J he ought to show to the court the matter which creates the objection, either by answer, or («) See BiUing v. Flight, IMadd. R. 230. 280 PLEAS. by plea, which has been described as a special an- swer, showing or relying upon one or more things as a cause why the suit should be either dismis- sed, delayed or barred(a)(l). The defence pro- per for a plea is such as reduces the cause, of some part of it, to a single point(6), and from thence creates a bar to the suit, or to the part to which the plea applies(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 therefore it is not every good defence in equity that is good as a plea : for that where the defence consists 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(£Z). (o) Prac. Reg. 324. Wy. ed. 2 (d) Chapman v. Turner, 1 Atk. Sch. & Lefr. 725. 1 Madd. R. 194. 54. S. C. 1 Harr. Chan. Prac. 35&. s 1 Atk. 54. 15 Ves. 82. 211^2). 2 Bligh, P. C. 614. 2Bligh.P. C.614^2). (1) The correctness of this definition of a plea recognised and illus- trated by Lube-, p. 238 ; and see Lord Drogheda v. Malone, Finlay'$ Digest, 449. Carroll v. Waring, 3 Gill £(■ Johns. 491. Asa de- murrer collecis the negative rule of law from the complainant's own statement, so the plea, on the other hand, deduces the same conclusioQ from a new statement by the defendant. Lube. 341. (2) Goodrich v. Pendleton, 3 J. C. R. 384. It must be perfect id itself, so that, if true in fact, it will put an end to the cause. Allen v. Randolph, 4 lb. 693 ; Lord Drogheda v. JSlalone, supra. Where a defence consists of a variety of distinct facts and circumstances, there can be no saving by plea. Loud v. Sergeant, 1 Edwards' V. C. Re- ports, 164. ..A plea will be overruled if it does not set forth any new matter, al- though the objection raised by it would have been valid if it had been urged by way of demurrer. Cosine v. Graham, 2 Paige's C. R. 177. PLEAS. 281 Pleas have been generally considered as of three sorts; to the jurisdiction of the court; to the per- son of the plaintiff or defendant; and in bar of the suit(l). As they have been usually arranged under these heads, it may be convenient to consider them in some degree with reference to that arrange- ment ; but the order before observed in treating of demurrers may be at the same time pur- sued; and pleas may *be considered with [*220] reference to the several grounds already mentioned on which defence may be made to a bill. The objections to the relief sought by an origi- nal 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 ju- risdiction of the 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 al- (1) Mr. Beames, however, very properly, adds a fourth class, which he terms to the bill. Willis. 486, note ia). 36 282 PLEAS. leged to be, or does not sustain the character he is alleged to bear : VIII. Tliat the defendant has not that interest in the subject which can make him liable to the demands of the plaintiff: and IX. That for some reason, founded on the substance of the case, the plaintiff is not entitled to the relief he prays. Of these the second is 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 plaintiff and [*221] defendant ; *the others are considered as pleas in bar of the suit: X. The deficiency of a bill to answer the purposes of complete justice may also be shown by plea, which may be consi- dered as in bar of the suit, though perhaps a tem- porary bar only. XI. The impropriety of unne- cessarily multiplying suits may be the subject of plea, which is also in bar of the suit : but the in- convenience which may arise from confounding distinct matters in the same bill, as it must be apparent on the bill itself, unless very artful- ly framed, can in general only be alleged by de- murrer. 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 plain- tiff also do not dispute the validity of the rights which are made the subject of the suit, but object to the plaintiff that he is by law disabled to sue in pi.EAs. 283 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 the plea(r?) to be true, yet the suit, or the part of it to which the plea ex- tends, is barred(/). But this description perhaps does not comprise every kind of plea, or *does not mark the distinctions between [*^222] the different kinds with sufficient accuracy. I. The general objects of the jurisdiction of a court of equity, and the manner in which a want of jurisdiction may be alleged by demurrer, when a bill does not propose to attain any of those ob- jects, 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 w ill give a court of equity jurisdiction cannot easily be so disguised in a bill as to avoid a demurrer ; but there may be instances to the contrary ; and in such cases it should seem a plea of the matter necessary to show that the court has not jurisdiction of the subject, though perhaps unavoidably in some degree a ne- (c) 2 Atk. 51. (/) Prac. Reg. 327. ^Vy. cd. 1 Madd. R. 194(1J. (1) The rules whicli have been adopted in England in relation to pleas in bar to bills in eqtiity, when resorted to by defendants, are con- sidered as applicable in the equity courts of Maryland. Chase v. JShDonald, 7 Harris S( Johnson, 160. A plea in bar to a bill in equity, denying part of the material facts stated in the bill, is not good. A mere denial of facts is proper for an answer, but not for a plea JdUUgcm, V. JUiUedge, 3 Cranck, 220. 284 PLEAS. gative plea, would hold(«'). Thus, if the jurisdic- tion was attempted to be founded on the loss of an instrument, where, if the defect arising from this supposed accident had not happened the courts of ordinary jurisdiction could completely decide upon the subject, perhaps a plea, showing the ex- istence of the instrument, and that it was in the power of the plaintiff to obtain a production of it, ought to be allowed, though instances of this sort of plea may not occur in practice. For it seems high- ly unreasonable that a plaintiff by alleging a false- hood in his bill should be permitted to involve a de- fendant in the expense of a suit inequity though the bill may finally be dismissed at the hearing [*223] of the cause, if the defendant answers *the case made by it, and enters into his defence at large. No authority, however, occurs to support such a plea(/i) ; and as there is little disposition in the courts of equity to countenance those defences which tend to prevent the progress of a suit to a hearing in the ordinary way, whatever the expense of the proceeding may be, it would hardly be pru- dent to endeavour thus to put a stop to an attempt to transfer the jurisdiction of a suit from the ordi- nary courts to a court of equity ; and indeed the guard put upon cases of this kind, by requiring the affidavit of the plaintiff of the truth of the matter which he alleges by his bill to support the juris, diction of the court, is likely to prevent any abuse upon this head. II. Though the subject of a suit may be within (g-) See Armitage v. WadswoHh, {h) See 1 Madd. R. 195. I Madd. R. IB?. PLEAS. 285 the jurisdiction of a court of equity, yet if the court of chancery is not the proper jurisdiction, the defendant may plead the matter which deprives the court of jurisdiction, and show to what court the jurisdiction belongs(£), and upon this ground may demand the judgment of the court whether he shall be compelled to answer the bi]l(A). Pleas of this nature arise principally where the suit is for land within a county palatine(Z), or where the defendant *claims the privilege [*224] of an university(m), or other particular jurisdiction(w). The court of chancery being a superior court of general jurisdiction, nothing shall be intended to be out of its jurisdiction which is not shown to be so(o). It is requisite, therefore, in a plea to the jurisdiction of the court, to allege that the court has not jurisdiction of the subject, and to show by vvhat means it is deprived of jurisdiction {p). It is likewise necessary to show what court has jurisdiction(^). If the plea does not properly set forth these particulars(r) it is bad in point of form(5). In point of substance it is necessary to (t) Earl of Derby v. Duke ofAthol, 65 ; Cotton v Manering, Cary Rep. 1 Ves 202; yiabob cf the Carnaticv. 73; Draper v. Crowther, 2 Vent. E. I. Comp. 1 Ver Jr. 371. S. C. 362; Stephens v. Berry, 1 Vern. 219. 3 Bro. C. C. 293. (n) Sec Cunningham v. Wegg, 2 (k) Ch. Prac. 417. 420. 3 Atk. 264. Bro. C. C. 241. (I) Com. Dig. Chan Plea I. 1 (o) 1 Ves. 204. 2 Ves. 357. Chan. Prac. 420; Edgucrth v. (p) See 3 Bro. C. C. 301. 1 Ves. Davies, 1 Ca. in Cha. 40. Reported, Jr. 388. upon view of precedents, that the ju- (q) Strode v. Little, 1 Vern. 59 ; risdiction of the countie? palatine was Earl of Derby \. Duke of At hoi, 1. allowed, between parties dwelling Ves. 202. S. C. Dick. 129. within the same, and for lands there, (r) See Moor v. Somerset, Nelf. and matters local. Nels. Rep. 37. 66. Rep. 51 ; and see 9 Mod R. 95. See also Willoughby v. Brcarton, (s) Foster v. Vassall, 3 Atk. 587. Gary's Rep. 60 ; Gerrard v. Stanley, And see Nabob of Arcot v. E. I. 1 Cha. Rep. 278. Comp. 3 Bro. C. C. 292. S. C. 1 (wt) Temple v. Foster, Gary Rep. Ves. Jr. 371. 286 PLEAS. entitle the particular jurisdiction to exclusive cog- nizance of the suit that it should he able to give complete remedy (/). A plea, therefore, of privi- lege of the university of Oxford, to a bill for a spe- cific performance of an agreement touching lands in Middlesex, was overruled ; for the university court could not give complete relief(M). And if a suit is instituted against different per- [^225] sons, some of *whom have privilege, and some not(x) ; or if one defendant is not amenable to the particular jurisdiction(i/) a plea will not hold. If, likewise, there is a particular jurisdiction, and yet the parties to litigate any question are both resident within the jurisdiction of the court of chancery ; as upon a bill concern- ing a mortgage of the island of Sarke, both mort- gagor and mortgagee residing in England, the court of chancery will hold jurisdiction of the cause : for a court of equity agit in personam(z). So where the court may not have jurisdiction to give relief it may yet entertain a bill for a disco- very in aid of the court which can give relief, if the same discovery cannot be there obtained ; as if the jurisdiction be in the king in council, where the defendant cannot be compelled to answer upon oath(«). Similar to a plea to the jurisdiction is the case of a plea to an information charging an undue (t) Newdigate v. Johnson, 2 Ca. Fanshaw v. Fanshaic, 1 Vern. 346. in Cha. 170; Wilkins v. Chalcroft, (y) Grigg's C3.se. biutton, 59; and 22 Vin. Abr. 10; Green v. Ruther- see 4 Inst. 213; Hilton v. Lawson, forth, 1 Ves. 463. Gary R 48. (w) Draper v. Crowther, 2 Ventr. (r) Toller v. Carteret, 2 Vern. 362; Stephens v. Berry, i Vern. 494. 1 Ves. 204. 3 Ves. 182. 5 212. Madd. 307. (x) Lowgker V. Lowghcr, Carv {a) 1 Ves. 905. RtJp: 55. B. C. 22 Vin. Abr. 3''; PLjfiAS. 287 election of a fellow of a college in one of the uni- versities, " That by the statutes the visitor of the " college ought to determine all controversies con- " cerning elections of fellows, and that such con- "troversies ought not to be determined else- " where(&)." But the extent 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 per- [*226J formance of the trust, relief must be had in the King's courts of general jurisdiction(d!). III. In respect to the person of the plaintift' it may be shown that he is disabled to sue, as being, 1, out-lawed, 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 institu- ting a suit alone. A plea of this kind is in the na- ture of a plea in abatement of the suit. 1. A person outlawed is disabled from suing in a court of justice, and if a bill is filed in his name the defendant may plead the outlawry, which whilst it remains in force will delay the proceed- ing(c). The record of the outlawry, or the ca- pias thereupon, must be pleaded suh pede sigilli^ (^b) Alt. Gen. v. Talbot, 3 Atk. 662. Took v. Took, 2 Vern. 198, Anon, S. 0. 1 Ves. 78. And see 1 Ves. 2 Freem. 143; Hovend. ed., but see 472. 474, 475. 2 Ves. 328. Parrot v. Bowden, ib. 37 ; the main (c) 1 Ves. 474. fact appearing upon record, Ord. in (d) Green v. Rutherforth, 1 Ves. Cha. Ed. Bea. 23, 2 Ves. & Bea. 357 ; 462; and sec 4 Bro. C. C. 167. 2 and a mere averment of identity be- Ves. Jr. 47. 13 Ves. 533. Ex parte ing considered sufficient, 2 Vern. Berkhamstead School, 2 Ves. & B. 199 ; and see 19 Ves. 83. And such 134. a piea may be filed by a defi'ndant (e) A plea of outlawry may be filed who is in contempt. Waters v. without oath, 1 Ca. in Cha. 258. Chambers, 1 Sim. & Stu. 225. 288 PLEAS. and is usually annexed to the plea(/)( i). A plea of outlawry, in a suit for the same duty or [*227] 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(o-). Otherwise a plea outlawry is always a good plea so long as the outlawry remains in force(/i) ; but if that shall be reversed, the plaintiff, upon payment of costs, may sue out fresh process against the defendant, and compel him to answer the bill(/). Outlawry in a plaintiff executor or administrator cannot be pleaded ; for he sues in auter droit{k). It is equally insufficient if alleged in disability of a person named in a bill as the next friend of an infant plaintiff(Z), or in an information as a relator (m). 2. The defendant may plead that the plaintiff is excommunicated(w), which must be certified by the ordinary, either by letters patent containing a (/) Tothill, 54 ; Prac. Reg. 327. (k) Killigrew v. KiUigrew, I Wy. ed. ; Onl. in Cha. Ed. Bea. 27. Vern. 184. Prac. Reg. 326. Wy. ed. And in a case in which the ibrmality (I) Prac. Reg. 327. Wy. ed. alluded to had been omitted, by mis- (m) There is a casf, Att. Gen. v. take of the clerk of the outlawries, Heath, Prec. in Cha. 13, where a the plea was allowed to be amended, plea of outlawry, in disability of the by annexing to it an office-copy of person of a relator, is said to have the exigent, or record of the outlawry, been allowed in the duchy-court of Waters v. Mayhcw, 1 Sim. & Stu. Lancaster. Put the relator seems to 220. have sustained the character of plain- {g') See Philips v. Gibbons, 1 tiff as well as of relator. See 3 Bac. Ves. & Bea. 184 ; Ord. in Cha. Ed. Abr. 762. Outlawry(3) ; and see Bea. 175. also Waller w. Hanger, 2 Balsli. IM. (h) Ord. in Cha. Ed Bea. 175; 3 Palmer's case. And. 30. Bac. Abr. 761. Outlawry(3). (n) And this plea may be put in (i) Ord. in Cha. Ed. Bea. 175; without oath, if the excommunication and see Peyton v. Ayliffe, 2 Vern. appear upon record. Ord. in Cha. 312. Ed. Bea. 26, and 2 Ves. & Bea. 327. (1) See the form of such a plea, Willis, 503. Outlawry can take place in the State of New-York only upon a conviction for treason. 2 Revised Statutes, 653. 745. PLEAS. 289 positive affirmation that the plaintifi" stands ex- communicated, and for what; or by letters testi- monial, reciting, " quad scrufatis registe- riis invenitur, &.c." Jliitlier *of these certi- [*228] ficates must be sub sigillo, and so plead- ed(o). Excommunication is a good plea to an executor or administrator, though they sue in auter droit{p), but not to the next friend of an infant(5'). This, like the plea of outlawry, ceases to be a bar when the disability is removed ; and therefore the plaintiff, purchasing letters of abso- lution, 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. 1 1, every popish recusant convict is in many cases disabled to sue, 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 fornl of the plea appear in the books of practice. If advan- tage should be attempted to be taken of this statute, the court would probably require the same averments to support the plea as are neces- sary to a plea of the same nature at law(5). This plea also ceases to be a bar if the plaintiff by con- forming removes the disability(^). 4. A plea, that the plaintiff is disabled from (o) Ord. in Cha. Ed. Bca. 27. stat. 53 Geo. III., c. 127, excoiumu- Prac. Reg. 327. Wy. ed. Tothill, nication is discontinued, except in cer- 54. tain cases therein specified. (p) Co. Litt. 134, a. 2 Bac. Ahr. (s) 3 Bac Ah. 780. Papists,(l). 319. Excoin. (D). See Lord Petre v. Univ. of Cam- (q) Prac. Reg. 278. bridge, Lutwyche, 1100. (r) Aviers v. Legg, Choice Ca. in (t) See Stat. 31 Greo. III. c. 32, Cha. 164. Prac. Reg. 327. Wy. ed. § 3 ; and valuable note to Co. Litt. It should here be mentioned, that by p. 391, a. not«(2). Hargr. & Bull, ed, 37 290 PLEAS. [*229] suing *being attainted, is equally rare(M). It would probably be likewise judged with the same strictness as if it was a plea at j 5. There is little more to be found in the books upon the subject of the plea that the plaintiff is an alien(i/)(l). An alien who is not an alien enemy, is under no disability of suing for any personal de- L mand(2;) ; and an alien enemy may sue under some circumstances(«). A plea has been put into a bill filed by an alien infidel not of the Christian faith, and was attempted to be supported upon the ground that the plaintiff was upon a cross-bill incapable of being examined upon oath. The plea was over- ruled without argument(6). 6. If a bill is filed in the name of any per- [*230] son incapable *alone of instituting a suit, (it) See V. Davies, 19 Ves. Atk. 51. As to the incapacities of 81 ; and see Ex parte Bullock, 14 aliens to take and to hold certain pro- Ves. 452. And case on Irish statutes, perty, see Co. Litt. 2 b., and notes in Kennedy v. Daly, 1 Sch. & Lefr. Hargr. and But), ed. In such cases, 355. it is presumed that a plea of mere (a:) 2 Atk. 399. This kind of plea alienage, if properly framed, would is not to be supported by oath, but be a sufficient defence. See Co. Litt. can be proved by the record alone, 129. (6) ; and Burk v. Brown, 2 V. Davies, 19 Ves. 81. 2 Ves. Atk. 397. & Bea. 327. (a) 3 Burr. 1741. 1 Bac. Ab. 84. (y) Burk v. Brown, 2 Atk. 397. Alien (D). Doug. 619. Cornu and 2 Vin. Abr. 274. Alien(I). 1 Bac. Blackburne, and the case of Anthon Abr. 83. Alien (D). Prac. Reg. and Fisher, in Doug, note 1, p. 626. 327. Wy. ed. Rast. Entr. 252; But the latter case was afterwards Bolt V. Att. Gen. 1 Bro. P. C. 421. reversed in the Exchequer Chamber, Toml. ed. ; Albretcht v. Sussman, 2 16th Nov. 1784. And see Evans v. Ves. and Bea. 323 ; and see Ex Richardson, 3 Mcriv. 469. parte Lee, 13 Ves. 64, and Ex parte (b) Ramkissenseat v. Barker, 1 Boussmaker, 13 Ves. 71. Atk. 51. (2) Ramkissenseat v. Barker, 1 (1) See the form of a plea that the complainant is an alien enemv. Willis, 5\3; 2 Equity Draft. 94, (2d edit.); and the form of the one which was used in Albretcht v. Stusman, {supra.) Beames on Pleas, 329. PLEAS. 291 as an infant(l), a married woman(2), or an idiot or lunatic(3), so found by inquisition, the defendant may plead the infancy, the coverture(&), or the inquisition of idiotcy or lunacy(c), in abate- ment of the suit. IV. A plea, that the plaintiff is not the person he pretends to be, or does not sustain the character he assuines, and therefore is not entitled to sue as such(^/), though a negative plea, is good in abate- ment of the suit; as were a plaintift' entitled him- self as administrator, and the defendant pleaded that he was not administrator(c). And where a plantiff' entitled himself as administrator of an intestate, and the defendant pleaded that the sup- posed intestate was living(/), the plea was allow- ed(5). It has been made a question how far a (b) Prac. Reg. 326. Wy. ed. {e)Winn v. Fletcher, 1 Vern. 473 ; (c) See case of the plaintiff being but see Fell v. Lutioidge, 2 Atk. in a state of mere mental incapacity, 120. 3 Barnard, 320(4). Wartnaby v. Wartnaby, 1 Jac. R. (/) Orel v. Huddleston, Dick. 377. 510. S. C. cited, 1 Cox R. 198. (cZj Prac. Reg. 326. Wy. ed. (1) See the form of a plea of infancy to a bill exhibited without a next friend. Willis, 514. (2) See the form of a plea of coverture of (he complainant. Willis, 515. (3) See the form of a plea of lunacy. Willis, 516. (4) If a complainant sues as executrix and has not obtained probate, the defendant may raise the objection by plea. Bourke v. Kelly, 1 Tio- ga ,, 172 ; Simons v. Milman, 2 Sitn. 241. The (ruth of a pica that the complainant is not the executrix of her testator, must be tried under a reference and not a replication. Bourke V. Kelly, supra. As to swearing to a plea in disability of the person, see Woods v. Crengh, 1 Hogan, 22\. (5) See the form of such a plea. Willis, 517. For the form of a plea by several defendants that the complainants are not next of kin 292 PLEAS. negative plea can be good(o-). To a bill by a person claiming as heir to a person dead, the de- fendant pleaded that another person was heir, and that the plaintiff was not heir to the deceased, and the plea was overruled(//), but this decision was afterwards doubted by the learned judge [*231] himself(/), when pressed by the ^necessary consequence, ihat any person falsely alle- ging a title in himself might compel any other per- son to make any discovery which that title, if true, would enable him to require, however injurious to the person thus improperly brought into court ; so that any person might, by alleging a title, however false, sustain a bill in equity against any person for any thing so far as to compel an answer ; and thus the title to every estate, the transactions of every commercial house, and even the private transactions of every family, might be exposed ; and this might be done in the name of a pauper, at the instigation of others, and for the worst pur- poses(fe). To avoid this inconvenience, a defend- (§•) But that question has been set more, 2 Jac. & W. 541. at rest. 11 Ves. 302, 305. See in- (i) 3 Bro. C. C. 489. 1 Madd. R. stances of negative pleas referred to 194. And it seems to have been es- in the next p«ge(l). tablished, that in such a case, a plea (Ji) Newman v. Wallis, 2 Bro. C. that the plaintiff is not heir, without C 142; and see Gunn v. Prior, showing who is heir, would be good, Dick. 657. S. C. 1 Cox R. 197. for that the defendant might not be Forrest. Ex. R. 88. n. Kinnerslcy v. able to prove. 16 Ves. 264, 2G5(2). Simpson, Forrest. 85. See also Earl (^)(3) As further examples of ne-r of Strathmore \ . Counless of Strath- gative pleas, see Dreio v. Drew, 2 and averring that only one of the defendants sustains that character, 2 Equity Draft. 104. (1) Also Beames on Pleas, 120 to 129 ; Warrington v. Mnlhersill,! Price, 666. (2) And see Beames on Pleas, 123, 124, et seq. ; and notes there. (3) To a bill filed by persons claiming title to an estate as the co- heirs of A. ex parte materna, the defendants pleaded that another per^ PLEAS, 293 ant has in some cases been permitted to negative the plaintiff's title by answer, and thus to protect himself against the required discovery ; but in other cases this has not been allowed, and the subject seems still to require further consideration(/). V. Interest in the subject of the suit, or a right to *the thing demanded, and pro- [*232] per title to institute a suit concerning it, have been mentioned as essentially necessary to sustain a bill ; and it has been observed, that if they are not fully shown by the bill itself the de- fendant may demur. But a title apparently good may be stated in a bill, and yet the plaintiff may not really have the title he states, either because he misrepresents himself, which has been consider- ed under the last head, or because he suppresses some circumstances respecting his title, which if disclosed would show eithor tliat nothing was ever vested in him, or that the title which he had has been transferred to another ; and this the defend- ant may show by plea in bar of the suit. As if a plaintiff claims as a purchaser of a real estate, and the defendant pleads that he was a papist, and Ves. and Bea. 159; Sanders v. King, of the Rolls, sitting for the Chancel- 6 Madd, 61, and Yorke v. /Vy, ib. lor, 29 Oct. 1739, said, it was one 65, that i>laintitr is not a partner ; thing to deny a title in the plaintiff, and Thring v. Edgar, 2 Sim. & and another to show a title in one's Stu. 274(1), and particularly at p. self; and that the former had never 280, that he is not a creditor. been allowed as a good plea. — Mr. (i) See 11 Ves. 283. 296. and 303, Capper's note. See the authorhies and the several cases there cited, cited in the last note, and in the notes with the discordant opinions of seve- to the next page and below, chap. 2. ral judges. In the case of Getkin v. sect. 2. part 3(2). Gale, cited in Ambl. 354, the Master son was the heir of A. ex parte palerna, but did not set forth the pedigree of that person. Semble, that such a plea is good. Emerson V. Harland, 3 Simons R. 490. (1) Warrington v. Mothersill, 7 Price, 066. (2) Page 307. 294 PLEAS. incapable of taking by purcbase(??i) ; or a plaintiff claims property under a title accrued previous to conviction of himself, or of a person under whom he claims, of some ollence which occasioned a for- feiture(/2), or previous to a bankruptcy(o), [*233] ( 1) or any other defect in the title(p) of *the plaintitfto the matter claimed by the bill. A plea of conviction of any offence which occasions forfeiture, as manslaughter, must be pleaded with equal strictness as a plea of the same nature at com- mon la\v(^). But if a plea goes to show that no title was ever vested in the plaintiff, though for that purpose it states an offence committed, conviction of the offence is not essential to the plea, and the same strictness is not required as in a case of for- feiture. Thus, in the Exchequer, to a bill seeking a discovery of the owners of a ship captured and payment of ransom, the defendants pleaded that the captor was a natural-born subject, and the capture an act of piracy. Though the barons at first thought that the plea could not be supported unless the plaintiff had been convicted of piracy, (m) See however, 18 Geo. II [. c. instance of a plea that the plaintiff 60, s. 2, and the 43 Geo. 111. c. 30, by had taken the benefit of an Act for which this incapacity is conditionally the relief of insolvent debtors, De removed. Minckwitz v. Udney, 16 Ves. 466. (n) 2 Atk. 399. v. Davies, (p) Quilter v. Musscndine, Gilb. 19 Ves 81. Ca. in Eq. 228 ; Uitchens v. Lander, (o) Carletcn v. Leighton, 3 Meriv. Coop. R. 34 ; Gait v. Osbaldeston, 1 667. See Loxondes v. Taylor, 1 Russ. R. 158, in which the decision Madd. R. 423 ; S. C. 2 Rose R. 3G5. in S. C. reported 5 Madd. 428, was 432. It seems a plea of the plaintiff's overruled; and see Ovklestone v. bankruptcy must be upon oath, Jo- Benson, 2 Sim. & Stu. 265. seph V. Tuckey, 2 Cox R. 44. See {q) 2 Atk. 399. (1) Sec the form of a plea of bankruptcy of the complainaot, Willis, 519. A pica that the complainant lias taken the benefit of an act for the relief of insolvent deblorb is to be found in De Minckwitz v. Ud- ney, 16 Ves. 467. PLEAS. 295 and tlie record of the conviction had been annexed to the plea, they were finally of opinion that as the plea showed that the capture was not legal, and that therefore no title had ever been in the plaintift', the plea was good, and they allowed it accordingly(r). Pleas of want of title generally extend to discovery as well as to relief(5). It cannot often be necessary to make defence on this ground by way of plea; for if facts are not stated in the bill from which the court will infer a title in the plaintiff, though the bill does contain an assertion that the plaintiff has a title, the de- fendant may demur; the averment of title in the bill being not of a fact, but of the conse- quence of facts. Thus, where *a plaintiff [*^234J stated an encumbrance on a real estate, of which he was devisee, and averred that it was the debt of the testator, and prayed that it might be paid out of the testator's personal estate in ease of the real estate devised, the defendant having plead- ed that the testator had done no act by which he made it his own debt, the plea was overruled, be- cause, whether it was his debt or not was matter of inference from the facts stated in the bill, and therefore the proper defence was by demurrer(/). Accordingly the defendant afterwards demurred, and the demurrer was allowed(z*). VI. In treating of demurrers notice has been taken that though a plaintiff has an interest in the subject of a suit, and a right to institute a suit con- cerning it, yet he may have no right to call upon (r) Fall against , 1st May, (t) Twedell v. Twedell, 25th May, 17S2. 1784, in Cha. (a) Gilb. 229. («) Same cause, 18th July, 1786. 296 PLEAS. the defendant to answer his demands ; and it has been observed, that this happens where there is a want of privity of title between tlie plaintiff and de- fendant(u). It would probably be difficult to frame a bill which was really liable to objection on this head so artfully as to avoid a demurrer. But if such a bill could be framed it should seem that defence might be made by plea. VII. A plea that the defendant is not the person he is alleged to be, or does not sustain the charac- ter which he is alleged to bear, is mentioned as a plea which may be supported(:r). It seems [*235] to have been *considered as more conve- nient for a defendant under these circum- stances 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 answer the bill(^), 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(2;). 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, 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(«), if the case is not such that by a (m) See above, p. 158(1). Hotham, 1 Turn. R. 209. See be- {x) Prac. Reg. 326. Wy. ed. low, c. 2, s. 2, part 3. And see Griffith v. Bateman, Finch (z) 1 Ves. Jr. 292, and see ib. p. R. 334. 294, note(2> (y) Gary Rep. 61. Prac. Reg. (a) Plummer v. Alay, 1 Ves. 426. 327. Wy! ed. Att. Gen. v. Lord (1) See the form of a plea that a defendant never was administra- tor, Willis, 528 ; 2 Equity Draft. 95. {2d edit.) (2) And see Carroll v. Waring, 3 Gill S( Johnson, 491. PLEAS. 297 general disclaimer he can satisfy the suit(6). Thus, 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 declared an opinion that a defence might have been made by plea(c). ^^ *IX. Though the subject of a suit may [*236] be within the jurisdiction of a court of equity, and the court of chancery may have the proper jurisdiction; though the plaintiff may be 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 per- son 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 circum- stances pleas have been already considered, still the plaintiff, by reason of some additional circum- stance, 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 which are com- monly termed pleas in bar ; and which are usually (b) See the case of Tur?icr V. Ro- Bro. C. C. 238; S. C. 1 Ves. Jr binson, 1 Sim. & Stu. 3. 392; 7 Vey. 289, 290; 1 Ves. & (c) Plummer v. Mmj, 1 Ves. 426. Bea. 550 ; Turner v. Robinson, 1 This must liave been a negative pica. Sim. & Stu. 3. And see Cartwright v. Hatcl'j, 3 38 298 PLEAS. ranked under the heads of pleas of matter record- ed, or as of record, in the court itself, or some other court of equity; pleas of matters of record, or matters in the nature of" matters of record, in some court not a court of equity ; and pleas of matters in pais. Pleas in bar of matters recorded, or as of re- cord, in the court itself, or some other court of equity, may be, 1. A decree or order of the court by which the rights of the parties have been de- termined(- Lord Chancellor Talbot is stated to serving that it was every day's pr«c- have interrupted the counsel, who ob- tice, 304 PLEAS. 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, and also stated the decree, and alleged no fact to im- peach it, and yet sought relief founded on the title concluded by it, the defendant might demur ; be- cause 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 concluded, and then avoid the opera- tion of the decree by alleging that it had been ob- tained 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 ex- pense and vexation of a second litigation on the subject of a former suit, which the decree, if unim- peached, 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, [*243] which can alone give him *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 deny- ing the fraud alleged ; and those averments being PLEAS. 305 the only matter in issue, they are necessarily of the very substance of the plea. The decree if ob- tained by fraud would be no bar ; and nothing can be in issue on a plea but that which is contained in the plea ; and every charge in the bill not nega- tived by the plea is taken to be true on argument of the plea. If therefore the decree merely were pleaded, on argument of the plea, the charge of fraud must be taken to be true, and the plea ought therefore to be overruled ; but if on argument the plea were allowed, or if the plaintiff, without argu- ing, replied to the plea, no evidence could be given on the charges of fraud to avoid the plea, and the defendant proving his plea(). But if fraud or partiahty are charged against the arbi- [*2G1] trators(p), *those charges must not only be denied by way of averment in the plea, but the plea must be supported by an answer showing the arbitrators to have been incorrupt and impartial(e rpmarked, Freeland-v. Johnson, 1 Anstr. Et. that it is in like manner necessary R. 276. Ua/Zerv. Glanvillc, 5 Bro. that the defendant should deny tlie P. C. 555. 'I ond. cd 2 Sch. & Lcjr. equitable circumstances cliarged for 727. G JNiadd. (j4. 2 Sim. & Stu. 279. thepurposeof impeaching the release, {t) Giili. For. Rom. 57. GriJ/ith v. by averments in his plea, and by an Manser, Hardr. KiS. 2. Sch. iV Lefr. answer to tlje same effect, IJuijd v. 72H ; and see ]]'ciller v. Glanville, 5 Stnith, 1 Anstr. Exch. R. 258. Bro. P. C. 555. Toml. ed. (1) And see Al/en v. Randolph, 4 J. C. R. 693; Bull >n v. Gard- ner, 3 Paige's C. R. 273; also (but winch was the case of an answer) Davies v. Spurling, 1 Tamfy^i's R- 199. 324 PLEAS. of the deed of release, and all relief and discovery grounded thereupon, 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 ac- counts which was in his favor, and averring only that the deed had been prepared and executed without any fraud or undue practice on the part of the defendant, w as overruled. The consideration for the instrument was the general settlement of accounts; and if those accounts were liable [*263] to the imputations cast upon *them by the bill(M), the release was not a fair transac- tion, and ought not to preclude the court from de- creeing a new account. The plea therefore could not be allowed to cover a discovery tending to im- peach those accounts, ami the fairness of the set- tled accounts was not put in issue by the plea, or supported by an answer denying the imputations charged in the bill. The plea indeed was defec- tive in many other particulars, necessary to sup- port it against the charges in the bill ; and to some parts of the case made by the bill the release did not extend(.r). A release pleaded to a bill for an account must be under seal(?/) ; a release not ipider seal must be pleaded as a stated account 4. To a bill brought upon a ground of equity b}' (u) Though an account be stated (.r) Roche v. Morgcll, 2 Sch. & Vinder hand and seal, yet if there aj)- Lefr. 721(1}. pear any mistake in it the court will (?/) But it need not be signed, relieve. See the cases cited above, Taun'.on v. Pcplrr, (5 Madd. 106. 25!), note (e). (z) Ciilb. For. Rom. 57. (1) Ar.(] sec Bollon v, Gardner, 3 Paige's C. Ji. 273. PL EAS. 325 an heir at law against a devisee, to turn the devi- see out of possession, the devisee may plead the will, and that it was duly executed(«!)(^l). But in cases of this kind where the hill has also prayed a receiver, a plea extending to that part of the hill has heen so far overruled, as it might he necessa- ry for the court in the progress of the cause to appoint a recciver(&). Upon a hill filed hy an heir against a person claiming under a ^conveyance from the ancestor, the de- [*264] fendant may plead the conveyance in bar of the suit. To a bill by one partner in trade against his co-partner for discovery and relief re- lative to the partnership transactions, a plea of the articles of partnership, hy which it was agreed that all diflerences which might arise between the partners should be referred to arbitration, and that no suit should be instituted in law or equity until an offer should have heen made to leave the mat- ter in difference to arbitration, and that offer had been refused, has been allowed(r). This case has been much questioned ; and it now seems to be de- termined that such an agreement cannot be plead- ed in a bar of suit(;eHo>ii/ p. 175, and 2 Jac. & \V. 192. ▼. Hony, 1 Sim. & Stu. 568; but, in (a) On this subject see PuUeney respect of equitable titles and de- v. Warren, 6 Ves. 73. Pettiward v. mands, are only influenced in their Prcscott, 7 Ves. 541. determination by analogy to it. 1 Sch. {b) See instances of a plea of the vided it has been pleaded to the declaralion. If the action was com- menced before the bill was filed, the plea must aver that the cause of action did not accrue within six years before the action was brought. Macgregor v. The E. I. Company, 2 Sim. 452. It is a settled princi- ple that equity follow the law ; and acting in obedience to the statute of limitations, the plea thereof is as available in equity as at law, in relation to the same subject-matter. Wulkins v. Haricood, 2 Gill Sp Johns. 307; Carroll v. Waring, 3 lb. 491. Tiie statute of limitations may be interposed against legacies, if not charged upon the land, as well in equity as at law. Souzer v. De JJeijer, 2 Paige's C. R. 574. If a sufEcieot lapse of time to create a bar appears upon the bill, there is no occasion to support such a plea with an answer. Carroll V. Waring, 3 Gill Sf Johns. (Maryland) R. 491. The statute of limi- tations may be a bar to a suit in equity by one partner against another for an account and settlement of the joint concern. Alwater v. Fowler, I Edwards' V. C. iJ. 417. (1) Dey V. Dunham, 2 J. C. R. \9l ; 3 J. J. Marshall's R. 186. PLEAS. 337 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 statutes for draining the fens, the defendant plead- ed the statutes, and that the sale was made by vir- tue of and according to those statutes, and the plea was allowed(c). X. Supposing a plaintiff to have a full title to the relief he prays, and the defendant can set up no defence in bar of that title, yet if the defendant has an equal claim to the protection of a court of equi- ty 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(). 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 suffi- cient cause to revive the suit against the defend- ant, and this is not apparent on the bill, tlie defend- ant may plead the matter necessary to show that the plaintiff is not entitled to revive the suit against him(p)(l). Or if the plaintiff is not entitled to re- vive the suit at all, though a title is stated in the bill, so that the defendant cannot demur, the ob- jection to the plaintiff's title may also be taken by {m 3 Vcs. Jr. 458. And see Cp) Harris v. Pollard, 'i^.'Wms. above. -275, et seq. 3 Atk. 302. 348 ; S. C. 2 Eq. Ca. Abr. 2 ; Hug- (n) Perrat v. Ballard, 2 Ca. in gins v. York Buildings Comp. 2 Cha. 72 ; Hojman v. Gimielrlon, Eq. Ca. Abr. 3. A person made a Finch R. 31; Abery v. Williams, 1 defendant by a bill of revivor cannot Verii. 27. su])f)ort, as a defence, a plea previ- (o) See however, Cookv. Dclebere, ousiy set up by the orijjinal defendant, 3 Ch. Rep. 6G, where a plea to a and overruled, Samuda v. Furlado, certiorari bill, of a decree in the in- 3 Bro. C. C. 70. ferior court, is mentioned. (1) See the form of a plea to a bill of revivor, Willis, 583. PLEAS. 353 way of plea. Indeed it seems to have been thought that a defendant could only object to revivor by way of plea or demurrer(5'), 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 ge- neral be immediately ^determined in a [*290] summary way. However, if a defendant objects by answer only, or does not object at all, yet if it appears to the court that the plaintiff has no title to revive the suit against the defendant, he can take no benefit from it(r)(l). If a person en- titled to revive a suit does 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(5). If a supplemental bill is brought upon matter which arose before the origi- nal bill was filed, and this is not apparent on the bill, the defendant may plead that fact(<)(2). And if a bill is amended by stating a matter arisen sub- sequent to the filing of the bill, and which conse- quently ought to have been the subject of a supple- mental bill, advantage may be taken of the irre- gularity by way of plea, if it does not sufiiciently (9) Harris v. Pollard, 3 P. Wnis. seq., and the cases cited, and Earl of 348. Egremoni v. Hamilton, 1 Ball & B. (r) Harris V. Pollard, 3 P. Wins. 51 f!. 348. (t) See Lewellen v. Mackvorth, 2 (s) Hollingshead's caso, 1 P. Wms. Atk. 40 ; Baldxcin v. Mackown, 3 742. And see 2 Sch. & Lefr. 632, et Atk. 817. (1) But see the cas3 of Lewis v. Bridgman, 2 Sitn. 465. (2) See the form of a pica to a supplemental bill, WiUia, 585. 45 354 PLEAS. appear on the bill to tbund a demurr<3r(5) : but if the defendant answers ho waives the objection to the irregularity, and cannot make it at the hear- ing(0. A cross-bill differing in nothing from the first species of bills, with respect to which pleas in gene- ral 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 [*291] of bills. And a cross-bill *ingeneral is not liable to some pleas which will hold to the first species of bills; as pleas to the jurisdiction of the court, and pleas to the person of the plaintiff, the sufficiency of which seem both affirmed by the orginalbill; unless the cross-bill is exhibited in the name of some person alone,^ wlso is alone in- capable of instituting a suit, as an infant, a feme covert, an "idiot, or a lunatic(t/). It has been already mcntioned(ar) 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 (]ecree{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(2;). Where any matter beyond the decree, as length of time(«), a purchase for a valuable consideration, or any other matter, is to be offered against opening (s) See Brown v. Hlgden, 1 Atk. (y) Dancer, v. Evctt, 1 Vein. 392; 2f>l ; Jones v. Jones, 3 Atk. 217, and Carlish v. Gotcr. Nels. Rep. 52.. above, p. 48, 49. (z) And see Needier v. Kendall. (t) Belchier v. Pearson, ;i( the Finch R. 468(1) Rolis, 13tli July 1782. (a) Gregor v. Molesucrth, 2 Ves {u') See above, p. 203, nolc {s). lO'.t : but sec above, p. 205. S Page 203. (1) AUo Webb V. Pell, 3 Paiges C. R. 3fJS. FLEAS. 355 of the enrolnieiil, tlsat 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 [*39'2| new bill of review(c) on the same grounds, and maybe pleaded accordingly. To a bill of re- view of a decree for payment of money, it has been objected by plea that according to the rule of the court(rZ) the money decreed ought to have been first paid, but the rule appears to have been dis- pensed with on security given(c); and as the bill of review would not stay process for compelling payment of the money, it may be doubted whether the objection was properly so made. A bill of re- view, upon the discovery of new matter, seems li- able to any plea which would have avoided the ef- feet 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 flict 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 if the (b) Harhcellv. Townsend.^'QxQ. 220(1). P. C. 107; Toml. ed. ; and soe Gor- (f) Dtnny v. Filmer, 2 Ca. in ■man v. M-Cullock, 5 Bro. P. C. 507 ; Cha. 133 ; S. C. 1 Vcrn. 135 ; I Toml. cd. As instance.'? in which Vern. 417 ; Pitt v. Earl of Arglass, the error alleged was not in the body 1 Vern. 441; IVooIj v. Tucker, '2 of the dcrrce, see Cravborne v. Dal- Vern. 120. mahoy, 1 Cha. Rep. 231 ; Smilh v. (d) Ord. in Cha. ed. Bea. 3. Turner, 1 Vern. 273; and see 2 (e) Sart/e v. Dorci/, 2 Freeni. 172; Ves. 488, and Bradish v. Gee. Anili. S. C. 1 Ca. in Cha. 42. (1} And see cases collected in Blunl's edition of Ambler, ssime pgigei uote (1). 356 PLEAS. fact of the discovery is in issue in the cause, it 6ught to be proved, to entitle the plaintiff to de- mand the judgment of the court on the matter al- leged, as ground for reviewing the de- [*293] cree(/) ; and it may consequently *be dis- proved by evidence on the part of the de- fendant. Upon a supplemental bill in nature of a bill of review of a decree not signed and enrolled, upon the alleged discovery of new matter, it has been said, that if tlie defendant can show that the allegation is false, he must do so by pica, and that it is too late to insist upon it by answer (^) ; but as the bill must allege the fact of discovery, and that fact must be the ground of the proceeding, it should seem that it is equally liable to traverse by answer, and by evidence, as any other fact stated in a bill If a decree is sought to be impeached on the ground of fraud, the proper defence seems to be a plea of the decree, accompanied by a denial of the fraud charged(^). If a plaintiff filing a bill to carry a decree into execution has no right to the benefit of the decree, the defendant may plead the fact, if it is not so apparent on the bill as to admit of a demurrer. Bills in the nature of bills of revivor or of (/) See p. 89. stances, ought to operate as a bar to (g-) 2 Atk. 40. The accuracy of the plaintifi's title under the old set- this report seems very questionable, tlement, which was dated in 1655 ; The supplemental bill was brought the defendants claiming under a sub- on discovery of an old settlement, sequent settlement made in 1694, found after a decree made in 1733. which had been constantly acted upon The cause came on upon the sup- by the family. MS. N. S. C. 2 Eq. plemental bill, and a rehearing of the Ca. Ab. 579. decree complained of, 7 July 1740. (k) Wichalse\. Short,3BTO.P.C. The decree was affirmed, and the 558, Toml. ed. S. C. 7 Vin. Ab. 398. supplemental bill dismissed without pi. 15; 2 Eq. Ca. Ab. 177; Loyd r. costs, principally on the ground, that Mansell, 2 P. Wms. 73. And see p. length of time, with collateral circum- 239, et seq. PLEAS. BS'rf supplemental *bills are liable to the same [*'29i] pleas as the billsof vvhosenature 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 strictness in equity as at law(i) ; at least in matter of substance. A plea in bar must follow the bill, and not evade it, or mistake the subject of it(A:). 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(Z). So if the parts of the bill to which the plea extends are not clearly and precisely ex- pressed; as if the plea is general, with an excep- tion of matters after mentioned, and is accompa- nied 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 suf- ficient or not, before the validity of the plea can be considered(m)(2). (i) 1 Vern. 114; 2 Atk. G32 13 Horsley, Mosely, 40. Ves. 233(1). (m) Salkeld v. Science, 2 Ves. (A) Asgill V. Dawson, Bunb. 70 ; 107 ; Howe v. Duppa, 1 Ves. & B. Child V. Gibson, 2 Atk. 603. 511. Q) Anon. 3 Atk. 70; Broom v. (1) Burditl T. Grew, 8 Pickering's R. 102 ■ Beamed Pleas, pre- face ; and note (a) to Willis on Pleading, 486 ; 1 Montague on Plead- ing, 26. (2) And see MS. case of Lcaycraft v. Dempsey, in note at p. 300. 35.S PLEAS. It is generiilly conceived that a plea ['*'295] ought not to ^contain more defences than one ; and though a plea may be bad in part and not in the vvhole(/?), and may accordingly be allowed in part and overruled in part(l), 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 line and non-claim, which is a legal bar, and a purchase for a valuable consideration without no- tice. of the plaiiitifl's claim, which is an equitable bar : if either should appear not to be a bar, as if the defendant by answer should admit facts amount- ing to notice ; or if the plea in respect to either part should be informal ; there seems to be no case in which tiie 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(' answer and demur to the sanie bill ; but each of these defences must f refer to and profess, in terms, to be put jn as a defence to separate PLEAS. 365 matter relied upon as an objection to the jurisdic- tion of the court, to the person of the plaintifl' or " and tlislinct parts of the bill. Tims, if an answer corrmcnces as an " answer to tlie whole bill, it will overrule a plea or demurrer to any " particular part of the bill, altliough the defendant does not, in fact, " answer that part of the bill which is covered by the plea or denr-.urrer. "Xiord Redesdale says, if the plea is to part of the bill only, and there *' is an answer to the rest, it is expressed to be an answer to so much of " the bill as is not before pleaded to, and is preceded by a protestation " against the waiver of the plea, (Jlitf. PL 4 Land. ed. 300.) In " practice, the plea or demurrer usually precedes the answer, which, " in that case, commences thus : ' And as to the residue of the said bill, *' ' this defendant, not waiving his said plea, but relying thereon, and "'saving and reserving to himself, &c., for answer thereto or to so " ' much thereof as he is advised is material, &c.' (^Lube's Eq- PI, " 352.) I see no objection, except as to the convenience of reference, " in permitting the answer to precede the plea, as has been done in the " present case, but then the pleader must, by a reference to the part of " the bill which is subsequently covered by the plea or otherwise show " that it is an answer to the residue of the bill only. As the answer in " this case commences and concludes as an answer to the whole bill, in " the same manner as if it was not intended to be followed b}' a plea " as to part, in point of form the plea is overruled by the answer, and " cannot, therefore, be allow'ed. " As this plea, however, is a full defence to so much of the bill as it " professes to cover and is merely informal, in consequence of the in- " advertence of the solicitor in not excepting that part of the bill in " the commencement of his answer, it would be a matter almost of " course to permit him to amend on payment of costs. As the cause " must go to a hearing upon the other part of the bill, it will be equally " beneficial to the defendant if I permit the pica to stand for an answer. " I shall, therefore, direct it to stand for an answer, declaring it as a " good defence, if established by proof, to so much of the bill as seeks ^' for an account and satisfaction of the rents and profits up to and in- <' eluding the 1st February, 1831 ; and that the complainant is not, by " exceptions, to be permitted to call for an account for those rents and " profits, or any further answer as to that part of the bill. This, how- «' ever, will not preclude the complainant from excepting to the answer «' to the o'her parts of the bill, if it is insufficient. (^Coke v. Wilcox, *' Mozel. Rep. 74.) And the defendant must pay the costs of the M argument of the plea." Leaycraft v. Dempse]j, MS. 16 July, 1833. 366 PLEAS. 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 judg- ment of the court, whether the defendant ought to be compelled further to answer the bill, or such part as is thus pleaded to. If the plea is accom- panied by an answer merely to support it, the an- swer 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, [*301] it is 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. 3. A plea(/«) is filed like a demurrer in the pro- per office; and pleas in bar of matters in pais{o\ must be upon oath of the defendant ; but pleas to the jurisdiction of the court, or disability of the person of the plaintiff(7?), or pleas in bar of any matter of record, or of matters recorded, or as of record in the court itself(<2'), or any other court(r), need not be upon oath(l). (n) A })lea must be signed by {q) Prac. Reg. 324, Wy. ed. counsel, unless taken by commission- (r) But if a pica of matters re- ers. Simes \. Smith, 4 Madd. 3GG; corded be accompanied with aver- See below, p. 315, as to the taking of ments of matters iix pais, it must be an answer. upon oatli. Wall v. Slitbbs, 2 Ves. (o) Prac. Reg. 325. Wy. ed. & Bea. 354. See above, pp. 22G, 227. (p) Ord. in Ch. 27. 172 ; ed. Bea. 229. (I) CcirroUv. Waring, 2 Gill, tf- Johns. 491. Leave to withdraw a plea will not be givcD. Kirhy v. Taylor, 6 J. C. R. 242. There cao be no demurrer to a plea. If supposed insufficientj it may be set PLEAS. 367 4. If the plaintiff conceives a plea to be defective in point of form, or substance, he may take the judgment of the court upon its sufficiency. And if the defendant is anxious to have the point deter- mined, he may also take the same proceeding(l). Upon argument of a plea it may either be allowed simply, or the benefit of it may be saved to the hearing, or it may be ordered to stand for an an- swer. In the first case the plea is determined to be a full bar to so much of the bill as it covers, if the matter pleaded, with the averments necessary to support it, are true. If, therefore, a plea is al- lowed upon argument, or the plaintiff without ar- gument thinks it, though good in form and substance, not true in point of *fact, he [*302] may take issue upon it, and proceed to dis- prove the facts upon which it is endeavored to be support ed(5). For if the plea is upon argument held to be good, or the plaintiff admits it to be so («) Prac. Rpg. 330. Wy. cd(2). down for argument. Thomas's trustees v. Brashear, 4 Monroe's R. 67. (1) See above. By llie practice of the State of New-York, the complainant has ten Jays to file a replication to the plea or to amend Lis bill; and if he does not take issue on tlie plea c~ amend his bill within that time, either party may notice the plea for argument at the next or any subsequent term. If the plea is allowed, the complainant may, within ten days after notice of such allowance, take issue on the plea upon payment of the hearing therein. 47//i Rule. As to a de- fendant pleading matter of record, see 48//t Rule. (2) See 41lh Rule of j\/\ Y. Chancery. In Bogardus v. Rector ^ SfC, of Trinity Church, IMS. 6 August, 1833, Chancellor Walworth allowed a plea, and ordered the bill to be dismissed with costs : unless, within twenty days, the complainant should pay the costs of the argu- ment of the plea and file a replication to the answer. 308 PLEAS. by replying to it(/), the truth of the pica is the only subject of question remaining, so far as the plea extends ; and nothing but the matters contain- ed in the plea, as to so much of the bill as the plea covers, is in issue between the partics(2/). If there- fore issue is thus taken upon the plea, the defendant must prove the facts it suggests(a;). 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 inter- rogatories, to supply the defect(i/). But if the de- fendant proves the truth of the matter pleaded, the suit, so far as the plea extends, is barred(2;), even though the plea is not good either in point of form or substance. Therefore where a defendant plead- ed a purchase for a valuable consideration, and omitted to deny notice of the plaintiff^'s title, and the plaintiff" replied, it was determined that (0 1 Vcrn. 72 ; Prcc. in Ch. (y) Nels. Rep. 119 ; Asileij r. 58(1). Fountaine, Rep. Tern. Finch 4 ; 2 {u) 2 Wms.'db; Parker V. Blyth- Ves. 247 ; G Madd. 63 j 2 Sim. & more, Prec. in Chan. 58 ; Soe Cooper Stu. 278(3). V. Tragonnel, 1 Ch. Rep. 174(2). (z) See Wichalse v. Short, 3 Bro. {x) IVlos. 73 ; 2 Vcs. 247 ; Ord. v. P. C. 558(4). Huddleston, Dick. 510. (1) Hughes V. Blake, 6 JVheat. 472 ; Dows v. MMichacI, 2 Paige's C. R. 345. (2) The issue, as to the truth of the plea, is to be referred to the slate of the facts at the time of filings tlie plea. Cook v. Jlxtncius, 4 J. C. R. 16G. (3) Stiuzer v. De Meyer, 2 Paige's C. R. 574. A plea which sets up no valid defence to an)' part of the matter it professes to cover, should be overruled absolutely, and will not be permitted to stand for an answer. Orcvtt v. Orms, 3 lb. 459. (4) Hughes V. Blake, su^ra ; Dows y. M^Michael, supra. PLEAS. 369 the plea, though ^irregular, had been [*303] admitted by the rephcation to be good, and that the fact of notice not being in issue, the defendant, proving what he had pleaded, was enti- tled to have the bill dismissed(«'i). If upon argument the benefit of a plea is saved to the hearing, it is considered that so far as ap- pears to the court it may be a defence ; but that there may be matter disclosed in evidence which would avoid it, supposing the matter pleaded to be strictly true ; and the court therefore will not pre- clude the question(l). When a plea is ordered to stand for an answer^ it is merely determined that it contains matter which may be a defence, or part of a defence ; but that it is not a full defence, or it has been informally ofl'ered 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 argument of the plea, the answer may read to counterprove the plea ; and if the de- fendant appears not to have sufficiently supported his plea by his answer the plea must be overruled, or ordered to stand for an answer only(&). A plea is usually ordered to stand for an answer, where it states matter which may be a defence to the bill, (a) Harris v. Ingledew, 3 P. (b) See Hildyard v. Crcssij, 3 Atk, Wins. 94, 95. 30-1(2). (1) By tlie practice in tlie State of New-York, there cannot be a plea after one has been overruled. 49lh Rule ; and bee Rowley V. Ecc/es, 1 Sim. t|. S. 511. (2) Also Kiriy v. T'aylor, 6 J. C. R. 242. 47 370 PLEAS. though perhaps not proper for a plea, or informal- ly pleade(l(6). But if a plea states no- [*304] thing *vvhich can beadefence it is merely overrulec](2). If a plea is ordered to stand for an answer, it is allowed to be a sufficient an- swer to so much of the bill as it covers(c), unless by the order liberty is given to except(£^). But that liberty may be qualified, so as to protect the defendant from any particular discovery which ho ought not to be compelled to make(c). And if a plea is accompanied by an answer, and is ordered to stand for an answer, without liberty to except, the plaintiff may yet except to the answer, as in- sufficient to the parts of the bill not covered by the plea(/). If a plea accompanied by an answer is allowed, the answer may be read at the hearing (6) As examples, see Moore v. 239. Mnilland\. Wilson, 2 A\k.S\i. Hart, 1 Vern. 110. S. C. ibid. 201. See Dryden v. Rohinson, 2 Sim. & Kemj) V. Kclsey, Prcc. in Cha. 544. Stu. 52y(3). Salkeld v. Science, 2 Ves. 107. (c) See Alardes v. Campbell, Whitbrcad V. Brockhursl, 1 Bro. C. Buiib. 265. S. C. 1 Turn. R. 133, C. 404(1). S. C. 2 Ves. & B. 153, n. note. Herbert v. Montagu, Pinch R. Whitchurch v. Bevis, 2 Bro. C. C. 117. Brereton v. Gramul, 2 Atk. 559. Wood V. Strickland, 2 Ves. & 240. Pusey v. Dcsbouvrie, 3 P. B. 150. Wms. 315. King v. Holcombe, 4 Bro. (c) Cokcv. Wilcocks, Mos. 73. 3 0.0.439. Bayley \. Adams, 6 Yes. P. Wms. 240. 3 Aik. 815^3). 58G. (d) Sellon V. Lewen, 3 P. Wms. (/) Coke v. Wilcocks, Mos. 73. (1) Orcutiv. Orms, 2 Paige's C. R. 459. And see Souzer v. De Meyer, 2 Paige's C. R. 574. Where a plea has been overruled oa the merits, the same matter cannot be set up in the answer as a bar to the suit, without the special permission of the court. Townsend v. Townsend, 3 lb. 413. (2) OrcuU V. Orms, 3 Paige's C. R. 459. (3) Kirby v. Taylor, G J. C. R. 242 ; Orcutl V. Orms, supra. Id this case (Orcu^f v. Orms.) Chancellor Walworth has said, that the answer will be considered as a full answer, though not necessarily a perfect defence. PLEAS. 371 of the cause to counterprove the plea( «•)(!). There are some pleas which are pleaded with such circumstances that their truth cannot be dis- puted ; and others being pleas of matter of fact, the truth of which may be immediately as- certained by mere inquiry, *it is usually [*305] 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, being always pleaded suh sigil- lo, the truth of the fact pleaded is ascertained by the form of pleading, and the suit is consequently delayed until the disability shall be removed, un- less the plaintiff can show that the plea is defect- ive in form, or that it does not apply to the parti- cular case, and for these purposes he may have the plea argued. Pleas of a former decree(i), or of another suit depending(fc), are generally referred to a master to inquire into the fact ; and if the master reports the fact true, the bill stands instant- ly dismissed, unless the court otherwise orders(Z). But the plaintiff may except to the master's report, and bring on the matter to be argued before the (g) 3 Atk. 304. But the plaintiff (t) Morgan v. Morgan, 1 Atk. may not amend his bill as of course 53. afier a plea to part of the l.ill has (k) Orel, in Cha. 98. ed. 1739. been allowed. Taylor v. Shaw, 2 {I) See Crofts v. Wortley, 1 Ca in Sim. & Stu. 12(2). Cha. 211. See above, pp. 237. 246. (Ji) Ord. in Ch. 175, ed. Bea. (1) After a pica has been overruled, the same defence may be in- A, sisted on by way of answer. Goodrich v. Pendleton, 4 J. C. R. 549. Cut Ihi's is not so, upon a plea of the statute of limitations. Carter V Murrny,! J. C. R. IG7. (2) If a plea be overruled, the complainant may, within ten days thereafter, amend bis bill of course and without costs. Abth Rule of JV. Y. Chancery, 372 . PLEAS. coiirt(m) ; and if he conceives the plea to be de- fective, 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(w). (m) Durrand v. Hutchinson, Urlin v. , 1 Vern. 332, au'l Fos-, Mich. 1771, on Exceptions. ter v. Vassall, 3 Atk. 587. (n) Ord. in Ch. 176, ed. Bea. See *CH AFTER II. [*30G] SECTION II. PART III. Of An Steers and Disclaimers ; and of Demur- rers^ Pleas, Ansicers 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 ansvver(rt). And whatever part of the bill is not covered by demur- rer or plea, must be defended by answer(6), unless the defendant disclaims. In treating of answers and disclaimers will be considered, 1, The general nature of answers ; 2, Their form ; 3, The manner in which their sufficiency is decided upon, and deficiency supplied ; and 4, The nature and form of disclaimers. 1. It has been already(c) mentioned, that every plaintiff is entitled to a discovery from the de- fendant of the matters charged in the bill(rf), (a) 2 Vcs. 492. Earl of SvffoJk mcrous, cacli, it seems, is entitled to V. Green, 1 Alk. 450 j 1 Coi R. put in a siparatc answer, although 228(1). the}' should have but one common dc- (6) Prac. Reg. Wy. ed. fence. Van Saudau v. Aloore, 1 (c) Page 9. Rusp. R. 441, on appeal. See S. C. {d) Where the defendants are nu- 2 Sim. & Stu. 509. (1) S. P. Goodrich v. Pendleton, 4 J. C. R. 549. But see Carter V. Murray, 7 lb. 167 ; and particularly the observations of Sutherland y '^ J. in (S. C.) Murray v. Cosier, 4 Cow. 620. It is said, in Townsend y. Townscnd, 2 Paige's C. R. 413, that where a plea has beea overruled on .-"4-« the merits, the same matter cannot be set up iu the answer as a bar to the suit, without the special permission of the court. 374 ANSWERS. [*307] provided they are *necessary to ascertain facts material to the merits of his case, and to enable him to obtain a decree. The plaintiff may require this discovery, either because he can- not prove the facts, or in aid of proof, and to avoid expense(c). 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 (jf'). However, if the discovery sought by a bill is matter of scandal, or will subject the de- fendant to any pain, penalty, or forfeiture, he is not bound to make it(^) ; 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 in- sist that he is not obliged to make the discovery(/t). (e) 2 Atk. 211. V. Ellison, 2 Bro. C. C. 252, Cart- {/) 2 Ves. 492; 6 Ves. 37, 38, wriglu v. Hatebj, 3 Bro. C. C. 238, Coop. R. 214. Shepherd v. Huberts, 3 Bro. C. C. {g) 15 Ves. 378 ; and see authori- 23'J, 7 Ves. 288, 11 Ves. 42, but see ties cited above, p. 193(1J. Newman v. Godfrey, 'J, Ln-. (J. '/. (A.) 3 P. Wind. 238; Finch v. 332,) unless perhaps he ma;, be a nr,)- Finch, 2 Ves. 491 ; Honeywood v. fcssional person, and the discovery be Sclwin, 3 Atk. 276 ; Paxlon v. Dou- sought of matters confidentially com- glas, 19 Ves. 225; Parkhurst v. niunicated to him, {Stratford v; Lowlen, 1 Meriv. 391. 1 Swanst. Hogan, 2 Ball &. B. 104,) if a per- 192. 305(2). It has also been held, son answers at all, he may be requir- that a purchaser for a valuable consi- ed to answer all the facts stated in the deration, without notice, may by an- bill, from which he does not distinctly swer protect himself from making protect himself from answering by discovery of facts which might defeat either of the other modes of defence, his enjoyment. (Jerrard v. San- See DoLder v. Lord Huntingfield, tiers, 2 Ves. Jr. 454; S. C. 4 Bro. 11 Ves. 283, in which the earlier CO. 322; 15 Ves. 378 ; 1 Ball & cases are cited, Faidder v. Stuart, B. 325. And sec Lord RancUJ'e v. 11 Ves. 296, Shaic \. Ching, 11 Ves. Parkyns, G Dow P. C. 230, but see 303. Roue v. Teed, 15 Ves. 372, Orey v. Leighlon, 2 Sim. & Stu. Somervillc \. Mackay, IG Ves. 382, 234(3). It seems that in every other Leonard v. Leonard, 1 Ball & B; case, even in that of a mere witness 323, 3 Madd. 70, v. Harrison. 4 being made a defendant, (see Cookson Madd. 252, and 1 Sim. & Stu. 6. See, (1) And also page 195, anfe; Livingston v. Harrii, 3 Paige's C, R. 528. (2) And see Cuyler r. Bngcrt, 3 Paige's C R. 106. (3) Cvyler v. Bogert, supra. ANSWERS. 375 In this case the plaintiff *may except to the [*308] defendant's answer as insufficient; and upon that exception it will be determined whe- ther the defendant is or is not obliged to make the discovery(/)(2). If the defence whichcan be made to a bill consists of a variety of circum- stances, so that it is not proper to be offered by way of plea(^')'; or if it is doubtful whether as a plea it will hold ; the defendant may set forth the whole by way of answer, and pray the 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 circumstances which he conceives to be favorable to his case, and however, the distinction taken below, be founded. And see below, p. 316, pp. 310, 311, 313, between the cases note (9)(I). in which the defentlant bv answer de- (i) 2 Ves. Jr. 87 ; and see 1 Ves. nics the title of the plaintifl', in res- Jr. 294, note. pect of which the discovery is sought, (A) Chapman \. Turner, 1 Atk. and those in which he thereby denies 54. th.: validity ot the ground upon which (I) See Norton v. Turvill, 2 P. that tiUe is alleged by the plaintiil' to Wms. 144. (1) Aho Desplaces v. Guris,\ Edwards' V. C. Rep. 350; Whit- ney V. Belden, lb. 386 ; and see all the cases on this subject well di- gested in note (1) to Sweet v. Young, in 1 vol. BlunCs edition of Am- bler. (2) By the 2Uh Rule of the JV. F. Chancery, exceptions to an answer in an injunction cause must be filed within ten days after the defendant has answered : otherwise, it will not stay a motion to dis- solve the injunction. But this rule, it has been decided by Chancellor Walworth, does not apply where a complainant has waived the oalh to the answer. Livingston v. Livingstun, MS. 18 June, 1833; and see Rule 40. Besides these rules, there are many of the same court re- lating to exceptions. As to filing and submitting, Jfu/e 50 ; reference, R. 51, 52, 53. 125, 126; master's report, R. 55, 56, 57. 60. 62; scandal and impertinence, R. 53. 57. 106 ; further time to answer, li. 55. 58, 59 ; exceptions to report, R. 62 ; costs, R. 58, 59, 60. 63. 376 ANSWERS. which he could not offer together with a plea, he may set forth the whole matter in the [*309] same *manner. Thus, if a purchaser for a valuable consideration, clear of all char- ges of fraud or notice, can offer additional circum- stances in his favor, which he cannot set forth by way of plea, or if answer to support a plea as the expending a considerable sum of money in improve- ments, 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 circumi^tance attending his title. For a de- fence which, if insisted on by plea, would protect the defendant from a discovery, will not in general do so if offered by way of answer(/). To so much of the bill as it is necessary and material for the defendant to answer (?//) he must speak directly, ^ and without evasion, and must not merely answer '\ the several charges literally, but he must confess / or traverse the substance of each charge(w)(l). (Z) 2 Eq. Ca. Ab. G7 ; Richardson see below 316, note (q). V. Mitchell. Sel. Ca. in Ch. 51. (n) Ord. in Ch. 28. 179. ed. Bea. Above, p. 307; note (A). Hind v. Dods, Barnard, 258 ; S. C. (m) It seems, a mere trustee, in- 2 Eq. Ca. Ab. 69; Deane v. Bas- cumbrancer, or heir, need answer so fron, Anstr. 64; 2 Ves. & B. 162. much only of Ihe bill as applies to And see Hall v. Bodily, 1 Vern, him. Coop. R. 215. And further, 470. with respect to materiality of answer, (1) IFoods V. Jilorrell, 1 J. C. R. 103; Morris v. Parker, Z lb. 297 ; Smilh v. Lasher, 5 lb. 247 ; Pellil v. Candler, on appeal, 3 WendelPs /2. 618. If a defendant submit to answer at all, be must answer fully and particularly ; not merely limiting his responses to (he interrogations of the bill. HigUiorp v. Honk, 1 Gill Sf Johns- 270; Methodist Episcopal Church v. Jacques, 1 J. C. R. 65 ; and see Phillips Y. Provoost, 4 J. C. R. 205 ; Frost v. Beekman, 1 lb. 238 ; •» Cuyler v. Bogert, 3 Paige's C. R. 186 ; Utica Insurance Co, v. Lynch, ( ANSWERS. 377 And wherever there are particular precise charges (o) they must be answered particularly and pre- cisely, and not in a general manner, though the general answer may amount *to a full [^310] denial of the chargcsQ>)(l). Thus where a bill required a general account, and at the same (0) Those however, it seems, to case, Sel. Ca. in Ch. 53 ; Pruut v. the end mentioned in the text, must Underwood, 2 Cox R. 135 ; 6 Ves. be spcciiilly interrogated to. See 792; Wharton v. Wharlon, 1 Sim. King V. Marissal, 3 Atk. 102, JJu- writlon, ha-s more clearly and fully defined what may be im- pertinent by showing what is not so. " If the matter of an answer is " relevant, that is if it can have any influence whatever in the decision " of the suit eUher as to the subject-matter of the controversy, the pnrticu' / "K % 382 ANSWERS. of the conrii^d). But, as in a bill, nothing relevant will be deemed scandalous(c). (d) Peck V. Peck, Mosply, 45; v. Sax6y, 3 Swanst. 232, n. Sinith V. ReynohU-, Mosely, 69. Orel. (e) Mosely, 70. 1 Ball & B. 61 ; in Cha.. 25 ; vx\. Bea. Corbett v. Tot- and see Lord St. John v. hady St. tenham, 1 Ball & Bea. Gl ; Barnes John, 11 Ves. 52G. " lar relief to be given, or as to the costs, it is not imperliaent." Van Rensselaer v. Brice, 6 August, 1833. Long recitals, stories, couversatious and insinuations tending to scan- dal are impertinent. IFoods V. Morrell, supra. Counsel are to take care tliat a pleading " be not stuffed with repetition of deeds, writings " or records, in hcec verba ; but the effect and substance of so much of ^ /t^^ «r--^ -t" them only as is pertinent and material to be set down ; and that in / 5lh Rule. (2) But it will not be permitted, unless the complainant shows the materiality of the amendments, and why the matter proposed as aa amendment was not before stated in the bill. Brown v. Rickets, 2 J. C. R. 425. (3) Lyon v. Tallmadi^e, 1 J. C. R. 184; Livingston v. Gibbons, 4 Jb. 94 ; Thorn v. Germond, lb. 363 ; Beeknian v. Waters, 3 lb. 410; Shepherd v. Merrill, lb. 423 ; Renu-ick v. Wilson, G lb. d\. (4) Also Pratt v. Bacon, 10 Pickering's R. 123. UEPLICATIONS. 393 According to the present course of the court, although rejoinders are disused, yet the phiintitT, after repHcation, must serve upon the defendant a subpoena requiring him to ap})ear to rejoin, unless he will appear gratis(/V The effect of this process is merely to put the cause completely at issue be- tween the parties. For now, immediately after the defendant has appeared to rejoin gratis, or after the return of a subpoena to rejoin served on the de- fendant, and which, by order obtained of course is now usually made returnable immediately, and served on the defendant's clerk in court, the par- ties may proceed to the examination of witnesses to support the facts alleged by the pleadings on each side(m). Where by mistake a replication has not been filed, and yet witnesses have been examined, the court has permitted the replication to be filed nunc pro tunc(n). 429 ; and if the alteration be so con- siderable as, according to the practice of the court, to make it necessary that a new engrossment siiould be filed as of record, counsel's signature niust.be affixed thereto. Kirklcy \. Burton, 5 Madd. 378 ; Webster v. T/irc//a«, 1 Sim. & Stu. 135; Pitt V. Macklew, 1 Sim. & Stu. 136. n. (i) Anon. Mos. 123. 21)0 ; Flower V. Herbert, Dick. 349. (?n) Mosely, 21!6 ; Prac. Rrg. 371 ; Wy. ed. It may be noticed that leave will in some instances be given to withdraw a rejoinder and rejoin de novo. See Berks v. M ig^ar,, 1 Ves. &B. 221; Brickicood v. Miller, 1 Meriv. 4. (?i) Rodney v. Hare, Mosely, 29G- 50 [*324] ^CHAPTER THE FOURTH. OF INCIDENTS TO PLEADINGS IN GENERAL. In the preceding chapters have been considered the nature of the pleadings used in the equitable jurisdiction of the court of chancery, and the man- ner in which they are brought to a termination. Before the proceedings arrive at that point the court will frequently permit the pleadings filed to be altered, as the purposes of parties may require (rt), except in the case of answers put in upon oath, in which the court, for obvious reasons, will not easily suffer any change to be made(6). (a) As to Ihe amendment of bills, see above, pp. 55. 322 : of demurrers, Glegg V. LeghA Madd. 208 ; Thorpe V. Macaulay, 5 Madd. 218, and above, p. 214 ; and of pleas, Dobson v. Leadbeater, 13 Ves. 230; J/er- rewethcr v. Mcllish, 13 Ves. 435 ; Wood V. Strickland, 2 Ves. & B. 150 ; Thompson v. yi'ild, 5 Madd. {b) A special apfilication is neces- sary for the purpose, 4 Madd. 27, and the court will not as formerly, (see 3 Barn. 51, 2 Eq. Ca. Ab. 60, Wharton v. Wharton, 2 Atk. 294, Daglij V. Crump, Dick. 35, Bedford V. Wharton, Dick. 84, Patterson v. Slaughter. AmhI. 21)2; and cases cited, 1 Ves. & B. 150, note (a), 10 Ves. 285. 401.) v.nc leave to anii'nd the answer itself, except in the case of an infant dcf.ndaiit, {Savage v. Carroll, 1 Ball &. B. 548.) and e.x- cept in cases of mere clerical error, (^Griffiths V. Wood, ll Ves. 02, Peacock v. Duke of Bedford, 1 Ves. & B. 186, White V. Godbuld, 1 Madd. R. 269, FaircJoth v. Webb, 5 Maddr°S 73, but see liidley v. Obee, WijrIitw. \ 32,) bnt upon its conscience being i satisfied that the defendant ought not / to be concluded by the answer as upon record, ( 10 Ves. 401, 4 Madd. 27, and see Tennant v. Wilsmore, 2 Ansfr. 302 ) if the matter already brought forward be ambiguously stated, and it appear that the defendant meant to / swear to it in the sense which he / seeks u[ion his application to [lut up- ,' on it, (Livcsey v. Wilson, 1 Ves. & , B. 14'J,) or if it be desired to intro- \ duce new matter, and it appear that \ the defendant, at the time of putting \ in the original answer, was not aware.J thereof. {Wells v. Wood, 10 Ves. 401,) it Will permit a supplemental answer to be filed, {Jen/iings v. Merton College. 8 Ves. VJ, 10 Ves. 285, li) Ves. 584, Curling v. Mar- quis Townshend, I'J Ves. 628, ! (1) Jackson r- Rowe, 4 Russ. 588. INCIDENTS TO PLEADINGS^ 395 *After the examination of witnesses(c) no [*325] pait of the pleadings can be altered or ad- ded to, but under very special circumstances, or in consequejice 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(^) ; and leave has also been given to amend the prayer under particular *circumstances(^). If any event [*326] happens which alters the interest of any party, or gives any new interest to any person not a party, the plaintiff may file a supplemental bill, or bill of revivor, as the occasion may require. And if the plaintiff thinks some discovery from the defendant, which he has not obtained, is necessary to support his case, he may file a supplemental bill to obtain that discovery( /*). He may also file a supplemental bill to put in issue any matter ne- cessary to his case when he cannot obtain permis- sion to alter his original bill by amendment; but he cannot upon such a supplemental bill examine Strange v. Collins, 2 Ves. & B. IfiS, 2 Frrem. 172 ; Alullins v. Simmonds^ Edwards v. M'Leay, 2 Vfs. &.. B. Buiib. 1S6 ; Kingscute v. Bainsby, 25G, 4 Mndd, 407,) as a mode by Dick. 485 ; Tennant v. Wilsmore, whicli justice may be more surely ad- Anstr. 3G2. miiiistered, 19 Ves. 631. (d) Anon. 2 Atk. 15 ; Goodwinv. (e) As to lulls, see Wright v. Goodwin, 3 Atk. 370; 1 Prax. Aim, Howard, G Madd. 106, and above, p. Cur. Cane. 546. See above, pp. 55, 55. Where no witness has been ex- 322(1). aminrd, an amendment lias been )icr- (e) Cook v. Martin, 2 Atk. 2 ; niitted after publicilion [)assed. Has- Harding v. Cox, 3 Atk. 583 ; Palk tings V. Gregory, in the Excheq. v. Lord Clinton, 12 Ves. Jr. 48. lIHh Nov. 1782. 1 Fowl. Excheq. Pr. (/) Boere v. Skipwith, 2 Ch. 127; Sanderson v. Thwaitea, in Rep. 142; Goodwin v. Goodwin, 3 Chan. Trin. 1782. With respect to Atk. 371 ; Usborne v. Baker, 2 answers, see Chute v. JLady Dacres, Madd. R. 379. (1) But an amendment by adding a party com; lainant is not a mat* ter of course. Luclon School v. Scarlet, 13 Price, 51. V 396 INCIDENTS TO PLEADINGS. witnesses to any matter in issue by the original bill(o-). If upon hearing the cause the plaintiff appears entitled to relief, but the case made by the bill is insufficient to ground a complete decree, the court will sometimes give the plaintiff leave to file a sup- plemental bill, to bring the necessary matter, in addition to the case made by the orginal bill, before the court(/i). If the addition of parties only is wanted(/), an order is usally made for the cause to stand over, with liberty to amend the bill by adding the proper parties; and in some cases where a matter has not been put in issue by a bill with sufficient precision, the court has, upon hearing the cause, given the plaintiff [*327] ^liberty to amend the bill for the purpose of making the necessary alteration(fc)(l). The court considering infants as particularly under its protection, will not permit an infant plain- tiff to be injured by the manner in which his bill has been framed. Therefore, where a bill filed on be- half of an infant submitted to pay off a mortgage, and upon hearing the cause the court was of opi- nion that the infant was not bound to pay the mort- {g') Bagenal v. Bagenal, G Bro. G40 ; Toml. ed. As to practice in p. C. Ml ; Toml. ed. case of neglect to amend witliin a (h) [i Atk. 133. reasonable time, see Cox v. Ailing* (i) See above, pp. 55. 32-2. ham, 3 Madd. 393(2). (^•) Filkin V. Hill, 4 Bro. P. C. (1) Where there is a clear mistake in an answer, which is proper to be corrected, the practice is to permit the defendant to file an addi. lional or supplemental answer. But this is allowed with great caution ; and only where there is a mistake, properly speakiLg, in a mailer of fact, Bowen v. Cross, 4 J. C. R. 375, (2) Also Franklin v. Beamish, 1 Hogan, 72. INCIDENTS TO PLEADINGS. 397 gage, it was ordered that the bill should be amend- ed by striking out the submissiop(/). And where a matter has not been put by the bill properly in issue, to the prejudice of the iniant, the court has generally ordered the bill to be amended(m). A like indulgence has been granted to a defend- ant, when upon hearing a cause it has appeared that he has not put in issue by his answer facts which he ought to have put in issue, and which must necessarily be in issue to enable the court to determine the merits of the case, the defendant being permitted to amend his answer by stating those facts. This has formerly been done in the Exchequer, where a modus had been set up as a defence to a bill for tithes ; and it appeared from the evidence in tlie cause that there was probably a good ground for opposing the plaintiff's claim, though the defendant had mistaken it, and the court permitted *him to amend his an- [*328] swer(n) ; but this has been refused in other cases. Where an answer has been prejudicial to a defendant from a mere mistake; upon evidence of the mistake an amendment has been permitted (o). Tills indulgence has been extended, after much consideration, beyond mere mistake, where by the answer an important fact was imperfectly put in issue, and no witness had been examined, the cause being heard on bill and ans\ver(p). In (/) 1 p. Wms. 428(1). V. Uill, 4 Bro. P. C. (310; Tonil. cd, (jn) See p. 27; Nupier v. Ladt/ 2 Anstr. 443. Effingham, 2 P. Wins. 401. 403. (o) Countess of Gainsborough v. And see Bennet v. Lcc, 2 Atk. 52'J. Giffurd, 2 V. W lus. 424. (?i) Phillips V. Gicijnne, E.xclie- [p) Powell v. hill, in Chan. The quer, Easter, 1779. See also Filkin cause came first before the Master of (1) Franklin v. Beamish, supra. 398 INCIDENTS TO PLEADINGS. general, however, this indulgence is confined to mere mistake or surprise(. See above, p. 327. (6) See above, p. 55, note (ni), INDEX. N. B. The original paging has been preserved throughout the work, and is the one referred to in the Index(a). PAGE. 56. 60. 69. 100 5 6, et seq. - 60 . 127, 128. 130 119, 120. 123 - 274 ABATEMENT - - - - bj what circumstances occasioned how suit restored . . . - - See Death. Marriage. ACCIDENT ... 113. 123. ACCOUNT may be limital to the time of filing the bill stated, see Plea. where there is error or fraud in, 259, notes. 263, note see Aasicer, ACKNOWLEDGMENT with reference to the statute of limitations, - 271, and notes ADDRESS, see Bill. ADMINISTRATION limited to subiect of suit - - 177 and note, 178 ADMINISTRATOR. See Plea negative. AFFIDAVIT. See De bene esse. Deliver]/. Discovery of Deeds or Writings. Execution. Interpleader. Per- petuation of Testimony. Relief upon Deeds or Writings. Rcvieiv, Bill of. Supplemental Btll in nature of Bill of. AGENT, principal, in many cases, has aright to discovery from 159 privity between his vendee and principal - ib. notice to, is notice to principal - - 278 See Interpleader. AGREEMENT specitic performance of - . - 118 and note, 119 by parol, effect of part performance - - 266 (o) But little observation is taken of the American notes in this Index; a reference to the general subjects ombraceJ in the text will lead to thenj, IN HEX. AGJITIEMENT— continued. page. bj parol, as to confession of, in answer to bill for specific perfonnancc ...... 267 to refer lo arbitraiion, see Plea. not specifically performed, 264 ALIEN. See Discovery. Persons. Plea. ALIENATION, pendente lite, eflfecL of, where coinpulsory - - - 64, et seq. where volunlary - 73, et seq. and notes ALLEGATION, as to frame and sufficiency of - - 41, 42 and notes See Demurrer. AMENDMENT of pleadings generally - - 17,18 See Answer. Bill. Demvrrer. Infant. Plea. ANSWER 14, 15. 102. 106. 306. principal end of requiring .... 44 general nature of - ... - 306 form of 306.313,314 •were the proper mode of defence - - - 308 must not be evasive, but must meet substance of each charge 309 must be particular to particular charges - - 309, 310 manner in which sufficiency of determined, and deficiency supplied .-.-..- 306 as to materiality of 309 may be referred for scandal or impertinence 313. 318 where it must be signed by counsel - ■ - 315 of a quuker ; of a moravian : or of an infidel, as a jew or a mahometan 10, note of a trustee, incumbrancer, or heir - - 309, note of an infant - - - - - - 314 of an idiot or lunatic ..... 315 of a feme covert, see Married Woman. of attorney general .... 315 and note overrules demurrer ..-..- 320 plea 299. 320 where defendant may thereby protect himself from making full discovery 307 and note discovery enforced by, if connected with plaintiff's title 312 although plaintifFs title denied 310, 311, 312 not enforced by, if ground of plaintiff's title be denied - - - - - - 312 if counter title be set up 31 1 as to discovery independent of plaintiff's title being com- pelled - - - 312 \vh?re defendant sets up modus; denies plaintiff's claim without admitting assets; denies custom ; or denies part- nership and privity ; and declines to set forth account 310. 311, 312 INDEX. ANSWER— fon. 100 causes and purposes of ♦ - ^ - - 108 effect of 14. 107 is upon matter apparent on bill - - - 208 truth of matters properly charged by bill admitted thereby 211 and note. 212 form of 210. 212 must express the several causes of , - - 213 must define to. what it extends - - 214 and note in relation to substance or frame of bill - - 20H on ground of defective allegations in bill - 12.5. 1G3 speaking demurrer ^ - . 213. note (I) must be signed by counsel ^ - - . . 208 where put in without oath .... ib. is overruled by answer or by plea - - 209. 21 1 course of practice upon - - - - 14. 215 what is decided upon - ^ <- 108 note. 1,54 effect of allowing ..--.. 14 overruling . . - - . iq may in some instances be allowed in part - - 214 effect of allowing, on matter of form, and on the merits, with regard to a new bill - - - . 21G not generally permitted after demurrer overruled, 214 note. 217 and note upon overruling, leave in some instances given, to put in another less extended - - - 214. note ore tenus - - - - - - - 217 on account of smallness of amount sued for 1 1 0, and notes division of the subject of demurrers - - l(j9 for want of equity - - . - . 123. 103 to the jurisdiction - - \\\, ct seq. 123. 12.5.222 on ground that another court has the proper jurisdiction 12.3. 151, et seq, ' by one under personal disability, as an infant, a married woman, an idiot, or a lunatic - - - 153 for want of proper title in plaintiff 155 and note. 233 on ground that plaintiff's title is in litigation - I57 for want of privity between plaintiff and defendant, isee Creditor, and see - - 159, IGO. note INDEX. DEMURRER — continued. page. for want of interest in the defendant - 235 case of arbitrator - 160 assignee without title 161. 163 bankrupt 161, 162 heir not alleged to be bound - 163 -witness - 188 for want of parties, see Parizes . . - 180 for multifariousness, see Combination, and see, 181 and note to bill for part of a matter only to avoid multiplicity of suits - . . , . . . 183 to a bill of interpleader - - - - 141, 142 to perpetuate testimony - . 148. 156 to examine witnesses de bene esse - 150 to discovery, causes of . - - . - 185 for want of jurisdiction - - ib. interest in plaintiff, 185. 187 defendant, 185. 188 privity between plaintiff and de- fendant - - 185. 189 materialitj' in the discovery, 185. 191, 192, 193 on ground that discovery might subject de' fendant to penalties, as in respect of usury, maintenance, chanjpert}-. snuony, - - - 193, 194, 195 to discovery, on ground that it might subject defend- ant - - to forfeiture of interest, as upon assignment of lease, without lease, &c. - - - - 193. 197 to something in nature of forfeiture, as in regard to profession of popery : exception in regard to acts of trading by one declared bankrupt 198 to punishment, as upon a criminal prosecution . . . . 194 to consequence of a sup- posed crime, as in respect of forged deeds, - 196 to imputation of moral turpitude ...... ib. to discovery, effect of waiver by plaintiff of penalty or forfeiture, and of agreement to make discovery, in pre^ venting demurrer - - . - - 195. 197 on ground that defendant has in conscience a right equal to that claimed by plaintiftj as in case of a pur^ chaser for a valuable consideration without notice, or jointress 199 for want of parties, for want of equity, or because INDEX. DRMURR'EB.— continued. page. a bill brought for discovery of part of a matter will not hold, although it seems a demurrer for multifariousness would lie .-.-.. 200 to bill of supplement ----- 202 on ground that the bill might have been amended, or that the new matter is immaterial 202 and note. 207 to bill of revivor - - - - - 201.289 to bill of revivor and supplement - - - 206 to cross-bill - - - - ' - 203 for want of equity, or to the jurisdiction, will not lie . - - - ib. to a bill of review - - 203. 204, and note. 291 against opening the enrolment accom- panying plea of decree - . - - 203 on ground of lapse of time - 204 to a bill in nature of bill of review - - 205 to a supplemental bill in nature of a bill of review, ib. to bill to carry a decree into execution - - 205 to amended bill, on ground that the new matter has arisen subsequently to the filing of the original bill 207 to relief, where it extends to discovery, 183, 184, and note to discovery, and not to relief, consequence thereof, 183 note, 184 to relief, giving the discovery - - 185, note may fail as to relief, yet protect from the discovery 184, 185 amendment of - - - - - 324, note See Answer. Bill. Counsel Distinction. Plea. Time. DEVISEE, See Parties. DISCLAIMER - - 14. 102. 106. 283. 306. 318 form of - - - - - - - 319 efTectof - 16.319 no replication should be filed to - - - 319 as to decree upon .... - ib. where inconsistent with answer - - 319, 320 See Ansioer. DISCOVERY 8, 9. 12. 148 bill for. See Bill. objects of ..-.-- 53 form of ----- - 53, 54 no proceedings upon, after a sufficient answer 16 of deeds and writings, bill for ... 54 affidavit in support of un- necessary - 54. 124 right to, and grounds of - - - 9. 306, 307 INDEX. DISCOVERY— conihmed. page. when and when not enforced. See Demurrer, and 185, ■ et seq. bill of, in aid of orig-inal suit - - 186 note (3) of matter of scandal not enforced - - 307 in aid of the jurisdiction of this and of other courts 110, note (1) 185, and note. of the King in council, 225 of defendant's title, not enforced - - 189,190,191 whether of alienage enforced - - 196,197.287 defence in respect of, although not of relief, 107. 110 as to necessity of disclosing that an agreement or a trust was by parol, with reference to the Statute of Frauds - - - - - - 267, 268 as to necessity of disclosing the time when the plaintiff's right existed, with reference to the Statute of Limita- tions -.-... 269, ct seq. See Answer. Bankrupt. Costs. Demurrer. Plea, Witness. DISMISSION of bill, decree or order of, pleaded - - 238 DISTINCriON between demurrer and plea - - 297 and note 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 ^ - - - - 72 DISTRESS defeated by accident - - - - - 117 DIVORCE, suits for divorce and separation in the State of New- York, - - 28. note (2) 181, note (2) DOWER ' 120, et seq. DOWRESS plaintiff, favor shown to ^ . , 375^ note, E. ECCLESIASTICAL COURT - 250, note. 254, note. ELECTION, application that plaintiff may elect to proceed either at law or in equity . . . . . 250 course of practice upon election being made, 250, and note ENGLISH BILL -..,..-. 8 EaUlTY distinguished from positive law . , . . 3 want of See Demurrer, See Courts. Demurrer. Plea. Remedies. EXAMINATION OF WITNESSES - - 323 abroad, bill for ..,,., 149 EJECTMENT, instances of relief afforded upon - - 136. 144 INDEX. EXCEPTIONS PAGE- to answer ...... 808. 315 form and practice upon - - 315,316 accompanying demurrer, or plefi, where they constitute admission of validity of the latter, and where not - - - 317 must be signed by counsel - - 315 of infant or attorney general not allowed 315 and note reference of to a master - - 316 to master's report - - - - - - 316 upon a plea referred - - 305 See Master. EXCHEaUER AND EXCHEaUER CHAMBER, Courts of G, note EXCOMMUNICATION, see Persons, Plea. EXECUTION of another deed upon discovery of contents of one can- celled, bill for 124 affidavit not required to be annexed thereto ... ib. F. FEME COVERTE, see Married icovmn. Persons FEOFFMENT without livery of seisin - - - - 116 FINE, see Plea. effect of in various instances of legal and of equitable title .-----. 251 FOREIGN COURT - - 24. note (1), 248 note. 255 FORFEITURE, see Demurrer to discover j/, Discovery, Plea to discovc ry, Wo.sie. FORGERY, see Demurrer to discovery. Vl\A\j\y, sec Bill to impeach decree. Decree . 127, et seq. iM^gaiived by averments in plea and answer. See Plea. FRAUDS, Statute of, see Statute. G. GUARDIAN ad litem for an infant - - - - - 103 idiot or lunatic . - - 104 a person imbecile in mind - - ib. H. HEARING, relief not generally given at, if demurrer would have held - 108 leave given at to file a cross-bill, 82, 83. 331 a bill of review 223 INDEX. HEARING — continued. PAGfi.- leave given at to file a bill in nature of bill of review, 332 a bill of supplement, 326, 331 See Amendment. Infant. Interrogatories. HEIR, see Aiiswer. Demurrer. Parties. Plea. HUSBAND, see Parties. I. IDIOTS AND LUNATICS, suit on behalf of---'-" *i by whom instituted - - 29 defence on behalf of, to suit - - - - 103 See Answer. Committee. Demurrer. Information. Persons. Plea. IMBECILITY, see Plaintiff. IMMATERIALITY, see Demurrer. IMPERTINENCE in bill ^48 m answer 313.318 costs, in strictness to be paid by the counsel, 48. 318 INCUMBRANCER, see Answer. INFANT suit on behalf of ------ 25 by whom exhibited - - ib. where stayed - - - 27, 28 defence on behalf of, to a suit - - - 103 his consent to institution of suit on his behalf unneessary 28 indulgence granted to in suits on behalf of, 27. 39 note. 55 note by allowing amendment at hearing 327 where decree improperly affects 93. 96 note See Answer. Costs. Dcvutrrer. Next Friend. Persons. Plea. Suits. INFORMATION - - - 7. 21. 23 and notes. 99 on behalf of idiots and lunatics - - - - 29 charities 100, note frame of 100 and bill 23 and note. 99 fran-e of 100 INHERITANCE, see Decree. Parties. INJUNCTION 46. 134, et seq. in abated suit .... 57^ note (1) See the various subjects in this index upon which inter- position by, may be required. ^ PAGE. Insolvency, see Defendant. Plaintiff. Plea. Parties. INSTRUMENTS lost, see Bonds, and - - 123, 124 destroyed or suppressed - - - 113,114 See Cancellation. Deeds. Deliveri/. Execution. INTERPLEADER, form of bill of 49.142 bill of by agent 143, note debtor - - - - - - ib. tenant - - - 142 and note. 143, note as to affidavit and payment of money into court, and in- junction incase of - 49, and notes. 50 note. 143 See Bill. Demurrer. Plea. iNTERROGATORIES in bill must, in order that answer to them may be en- forced, be founded on particular charges, 309, note for examination of witnesses, leave given at hearing to file 329 defendant examined upon after his plea overruled, 302 J. y- JEW. See A7iswer. JURISDICTION OF CHANCERY, ordinary and extraordinary .... 1 general ...... 6. 8. 151 in relation to particular and inferior jurisdictions, 6. 9 general objects of - - - - - 4, 5. IH where to be exercised - - - - - 111 frame of prayer of bill where defendant out of 40, note when court will proceed in the absence of parties whose rights may be affected by the suit, 32, and notes in suit for a small amount - - 110, and notes See Cross Bill. Demurrer. Judgments. Plea. JOINTURE without power of distress - - - 115, 116 JOINTRESS favor shown to 279 See Demurrer to Discovery. JUDGMENTS of the common Law and Ecclesiastical Courts enforced in Equity 126, 127. 115. and note (2), 127 note (3) See Plea. K. KING, suit on behalf of - - - - - - 7. 21 may not be instituted against - 30, 31. 103 53 INDEX. KING — continued. page. where to be applied to by petition of right, 31. 102 See Croirn. Suits. KEEPER, LORD 7, and note LAW, MUNICIPAL, objects of ..-.--- 2 LEGATEES, suit bj or on behalf of - - - - 167, 1/ 1 decree in - - - 168 of deceased person, no privity with debtor to his estate 158 See Parties. LETTER MISSIVE - . - - 38, and note LITIGATION. See Repeated. LOUTATIONS. See Statute. LIS PENDENS. See Pica. LORD OF PARLIAMENT. See Defendant LUNATICS, by whom suit instituted on behalf of - - 29 defence on behalf of to a suit . - - - 103 See Ansicer. Demurrer. Idiots. Persons. Plea. M. r^IAHOMETAN. See Answer. MAINTENANCE. See Demurrer to Discovery, MARRIAGE of female plaintiff causes abatement of suit - 57 brokafr"e securities rescinded - - - 132 SLURRIED "WOMAN, where she sues jointly with her husband - - 28 separately b}' next friend - 24. 28 her consent to the filing of a bill on her behalf, separate- ly from her husband, necessary - - 28 defence by, to a suit - - - - 104, 105 where she must, and where she need not, obtain an order to answer separately - - 104, 105, and notes where she may be compelled to put in a separate defence 105 See Demurrer. Next Friend. Plea. aL^STER, as to his discretion in considering exceptions with re- ference to materiality of the interrogatories 316, note See Exceptions. Plea. MATERIALITY. Sec Demurrer. Master MISTAKE --.-... 128, 129 MODUS. See Ansu-er INDEX. MONEY, payment of into Court. See Interpleader. page. MORAVIAN. See Answer. MORTC4AC4E - - 130 MULTIFARIOUSNESS. See Combination. Demurrer. Demurrer to Discover)/. MULTIPLICITY OF SUITS prevented - 145. 183 See Demurrer. N. NE EXEAT REGNO 46 NEGATIVE PLEAS 231 NEXT FRIEND of infant 25, 26 and notes how far interested in event of suit - 27 of married woman - . . . . 28 See Costs. NEW TRIAL, bill for 131 NON-CLAIM. See Plea of Fine NOTICE 275, 276, and note, 277, tind note, 278. 298. 302 See Agent. Demurrer. Plea. NUISANCE 144 See Crown. o. OATH 9, 10 OFFICES, PUBLIC, securities for obtaining, rescinded - - -132 OPPRESSION ik ORDER FOR TIME, what amounts to compliance with - 20S, note. 209 See Time. OUTLAWRY. See Perso7ts. Plea. P. PAINS. See Demurrer to Discovert/. Plea to Discovery. PAPISTS 198. 286 See Demurrer. Persons. Plea. PARLIAMENT, LORD OF. Sec Defendant. PARTIES, general rule - - - - - - - 163 all persons interested should generally be 39. 164 admits of qualifica.tions - - 164 where defendant out of jurisdiction - - ib. persons in same interest complaining are numerous, in which case a suit may sometimes be instituted by one or more on behalf of all - 166, and note, et seq. INDEX. PARTIES — continued. tage, where persons in same interest defending are numerous, in which case a suit may sometimes be brought against some of them as representing all, 170, and note upon insolvency ... - 66, note (1) persons claiming under others before the court need not in general be made parlies - - - - 175 where persons entitled to ultimate or specific charges are and are not necessary parties - - 175, 175 where persons claiming the benefit of specific charges upon a trust-estate, or cestui que trusts, must be 175, 176 and note where persons are entitled to aliquot parts of a trust-fund 176, note the first tenant in tail only a sufficient party with regard to the whole inheritance - - - - 173 to suit by trustees . - . . , 174 creditors against assets - - 171.176 legatees .... 168, note. 171 where personal representative a necessary party 176, 177, 178 person having the legal title generally a necessary party 179 assignor of chose in action, necessary party with assignee 179 and note where the devisee and the heir, or attorney general, are necessary parties - - - 171, 172, 173. 176 committee of a lunatic suing - - - 29, note (2) must be party to a bill against idiot or lunatic ib. 30, note (1) husband must generally be party to a bill against his wife ib, attorney or solicitor general a necessary party in respect to charity funds - - - 30. 102. 169 note where a person may be made a defendant, although not interested, or not in privity - - - 160, note dispensed with by waiver of claim against - 179 proper, where dispensed with upon reason suggested by bill 180 where a person becomes entitled during pendency of suit 174 demurrer for want of must show the proper parties ISO applies, it seems, to the whole bill, ISO, note See Amendment. Crovm. Demurrer. Plea. PARTITION .... 119,120.122,123 PARTNERSHIP, see Answer, Pha. PATENT, as to restraining infringement of . - 138.147 there must be a separate bill against each invader, 182, note INDEX. PEER, or PEERESS, see Defenda?ii. PENALTIES, see Demurrer to Discovery. Plea to Discove- very. Waste. PERPETUATION OF TESTIMONY, bill for, form of 51 must be accompanied with affidavit - 52. 150 See Bill. Demurrer. Plea. PERSONS incapable of exhibiting a bill by themselves alone, are in- fants, married women, idiots and lunatics 24 of acting for themselves, although not bearing either of these characters ; by whom a suit may be insti- tuted on behalf of ------ 30 by whom a suit against such persons may be defended 103, 104 outlawed, excommunicated, convicted of popish recusancy, attainted, and aliens, not incapable of exhibiting a bill 25, note PETITION of right may be referred to the chancellor - - 3 1 in a summary way on abuses of trusts for charitable purposes, authorized by stat. 52 Geo. 3, c. 101, 18. 101, note relief upon, confined to cases of the abuse of clear trusts - 19. 101, note in relation to charities by the 59 Geo. 3, c. 91, 101, note See Rehearing. PLAINTIFF, how a change of interest in relation to, affects a suit 57, et seq. suing in his own right effect, of his death, bankruptcy, &c, on the suit - - - - - 57, et seq. 65 suing in auter droit effect of his death, bankruptcy, &c., on the suit - G4, 65 and note, 66, 67 and note instance of imbecility of mind in - - 230 note See Corporations. Idiots. Infants. King. Lunatics, Married Women. Queen. PLEA - - 14. 102. 105 when the proper mode of defence - . - 218 where necessary rather than demurrer, see Distinction, and 216 bill taken to be true so far as not contradicted by, 300 nature of 219. 294 object of 219 effect of 14 form of 294. 300 must define precisely to what part of bill it extends 294. 300 INDEX. PLEA — co/Uiniied. page. must contain only one defence . - - 295 must reduce so much of cause as it covers to a point ib. may consist of variety of circumstances - - 296 must bring the matter which it covers to issue 298 as to this mode of defence in case of setting up two seve- ral bars to same matter ----- 296 double - - - - 268, 269 note. 295, 296 leave in some instances given to plead double 296, note instances of plea not being a complete defence 297, note may be good in part, and bad in part - - 295 overrules demurrer - . - . - 320 where overruled by answer - - 240, note. 320 to amended bill may be disproved by answer to the origi- nal bill 299 after demurrer overruled - - - - - 216 where to be signed by counsel - - 301, note to be filed 301 •^ in what cases to be put in upon oath - - - ib. ^ admitted to be true by filing replication - - 302, 303 ■^i>rh~^ where referred at once to a master - - - 305 ""^^ proceedings on ----- 15,294.301 of setting down to be argued ... 301,305 modes of disposing of, by the court - • - 301 effect of allowing - - - - - 15, 301 of overruling - - - - - - 16 issue may be taken upon, and evidence produced upon facts pleaded - - - - - 15, 302 consequence of defendant succeeding or failing in the proof of facts pleaded ... - 302 effect of saving benefit of to the hearing - - 303 ordering to stand for answer - - 303, 304 with liberty to except 304 ordered to stand for answer with liberty to except, qualified so as to protect defedant from part of discovery sought 304. 313 overruled cannot be set up by a person made party by bill of revivor 289, note amendment of - - - 281 and note. 324, note division of subject - - - . . 219,220 to jurisdiction - - - 219, 220, 223, e^ seg-. to person - - - - 219, 220. 226. 230. 234 negative pleas - - - - - - - 231 in bar - 219, 220. 222. 231. 234, 235, 236. 274. 280 requisite allegations in, where founded on jurisdiction of an inferior court .... - 224 to information, that jurisdiction in visitor - - 225 of outlawry of plaintiff - - - 226. 305 rules respecting, 226 and notes, 227 and note INDEX. PLEA — continued. rAOB of excommunication of plaintiff - - - 227. 305 rules respecting 227 and note, 228 and note of plaintiff being papist recusant convict - 228. 232 rules respecting 228. 233 of attainder and conviction of plaintiff - 228. 232 rules respecting 229 and note of alienage of plaintiff 229 rules respecting - 229 and note of plaintiff being an infant, a married woman, an idiot or a lunatic -.-..- 229 negative, in denial of plaintiff's title, as that he is not heir or administrator as alleged by him 230 and notes, 231 and notes, 232, 233 of plaintiff's bankruptcy or insolvency 232 and note -f - of want of privity between plaintiff and defendant - 234 that defendant is not the person, &c. alleged - ib. negative, that defendant not interested 235 and note -■L that defendant not liable to demands of plauitiff 235 of matters recorded, or as of record - - - 236 of decree . - - - 236, et seq. 246. 305 when it may be in bar of a new suit 237, et seq. See Dismission. of another suit depending 237. 246 and note, et seq. necessary averments in - 247 effect of plaintiffs setting same down to be argued - 247 reference to a master upon 246 note. 247 and note. not put in upon oath, - 248 course of proceeding upon 246 note. 248 may be good, although suits not between same parties 248 may not be good where plaintiff sues in different rights 249 in a creditor's suit - ib. at common law,or in ecclesiastical court, it seems, not good 250 and note. of a fine and non-claim - - - - - 25 1 where the title is legal, and where equitable, - 251,252 necessary averments therein, 25 1 and note; 253 to a bill of review - 253 of a recovery ib. INDEX. JPLEA — continued. paoE. of a judgment ...... 255 upon a bill in respect of rights determined thereby .... 254 to set it aside - - 255 of will and probate ----- 257 of matters in pain - - - 236, 258 of a stated account ... - 258, 259. 263 form of - - 259, 260 and note of an award - 258. 260 of a release 258.261 form of - ^ - 261, and note. 263 of a legal instrument controlling or affecting the rights of the parties. . . . . 258. 263, et seq. will - - - 263 conveyance ...... ib. articles of partnership . - . - . 264 an agreement to refer to arbitration - - ib. of a statute, creating a bar to the plaintiff's demand, 258. 265, et seq. the statute of frauds .... 258. 265 form of - - - 265, et seq. in case of alleged trust - - 265 in cases of agreements - 266 ihe statute of limitations - - - 258. 269 form of - - 269, et seq. to claim of debt - - 269 money received to plaintiff's use 270 things executory 271 title - - ib. to a bill to redeem a mortgage ib. to a bill of revivor - - 272 of plenarty -------- ib. of public, or general, or of a local or particular statute 274 of purchase, &c. for valuable consideration without notice 274, et seq. proper averments in such a plea, 275, et seq. 277 note. 298 to a bill to perpetuate testimony - - - - 279 for discovery of deeds - - - - ib. for want of parties ----- 280, ct seq. particular cases m which this plea may be avoided - - - 281 containing negative averments supported by answer, as in instance of decree containing averments in denial of equitable circumstances charged and accompanied by answer in support thereof - 239. et seq. 277 note. 293 effect of such a plea so framed and so supported - 245 of judgment so framed and so supported - 256 IN DEX. PLEA — continued. page, effect of stated account so framed and so supported 259 200 of an award so framed and so supported - 200 of a release so framed and so supported - 202 of statute of frauds so framed and so supported, 268 limitations so framed and so supported, 271 to discovery - - - - - - 281, e^ seq where plaintiff states a false case - 282 not interested - : ib. defendant not interested - 282, 283 discovery sought improper 282. 284 that it might subject defendant to pains, pe- nalties or forfeitures - - 284. 286 effect of waiver . . . . 287 that it would betray confidence reposed in de- fendant, as counsel, attorney or arbitrator 284. 288 that defendant a purchaser for a valuable con- sideration without notice - - ib as to such a defence to the relief extending to the discovery, 270 to a bill for writ of certiorari - - 289 and note of revivor - - ... 289 of supplement that the new matter Vvas antecedent, 290 cross-bill 292 bill of review - - - - - - 291 on ground of matter extrinsic to the de- cree, as lapse of time, 204, 205 and note supplemental bill in nature of a bill of review 293 to a bill impeaching a decree - - - 239.293 to carry a decree into execution - 293 an amended bill, that the new nuitter was subsequent, 290 See Amendment. Answer. Averments. Demurrer. Distinction. Interrogatories. Time. PLEADING, former practice as to course of - - - 18.321 PLEADINGS, order in which treated of - - - - - 20 PLENARTY. See Plea. PKAYER for particular and for general relief - 37, 38, 39. 45 special order or provisional writ - 46 and notes, 47 See Bill. Jurisdiction. PREROGATIVE. See Suits. 54 INDEX. PRESERVATION pagk. of property pendente lite by this court - - 135 PRIVITY. See Agent. Creditors. Demurrer. Legatees. Parties. Plea. PROBATE of will obtained by fraud - - - 257 and note in a foreign court .... - 258 See Plea. PUBLIC POLICY 132 PURCHASER. See Demurrer. Plea. - 274, et seq. a. QUAKER, see Ansicer. aUEEN CONSORT . . . - 23. 99. 102 a bill may not be exhibited against her - - 30 where to be applied to by petition - - - - 31 aUIA TAMET BILL, - - - - - - 148 R. RECORD, where right appears by, not necessary to establish same at. law - - - . - - - 147 RECOVERY, see Plea. REFERENCE TO MASTER, see Master. Plea. Suits. REGISTER ACT (Ship,) observance of formality required hy, neglected, - 116 REHEARLNG, petition of - - - 90 and note, 91 and note See Decree. REJOINDER .... . - 323 special, disused ------ ib. leave eiven to withdraw and to rejoin de riovo, 323 note RELATOR, as to nomination of, and as to liability when named, 22, 23 and notes. 29 and note. 99, 100 death of, how suit affected by - - - - 100 See Costs. RELIEF - - «, 9. 12 defence in respect of, though not of, discovery 107. 110 where legal and founded upon discovery of deeds sought by bill, affidavit to be armexed thereto - - 54. 124 See Demurrer. Plea. RELEASE. See Plea. pleaded, must be upon good consideration - - 261 as to execution of - - - 263 and note REMAINDER, tenant in remainder may appeal from a decree against one having a prior estate of inheritance - - 173 Seo Decree. INDEX. REMEDIES PAGE. afforded in Equity with reference to such as are attaina- ble in Courts of Law - - - 113, et seq. REPEATED LITIGATION restrained - - - - - - - 144 REPLICATION --.---- 321 special, now almost disused - - 18. 322 and note liberty given to withdraw, and to amend bill, 322 note, 331 note where allowed to be filed nunc 'pro tunc, 323. 329, 330 See Disclaimer. Plea. REPRESENTATIVE, PERSONAL. See Parties. Plea negative. REVIEW, BILL OF, under what circumstances such a bill can and cannot be sustained ... - - 83 and notes, 90 where such a bill may and may not be filed without leave of the court ..--.- 84 where such leave will and will not be granted, 85, et seq. and notes rules in relation to, as to proceedings and as to time 88 frame of -------- ib, affidavit necessary upon application for leave to file 84 See Bill. Decree. Plea. Supplemental Bill. REVIEW, BILL IN NATURE OF BILL OF where the proper-course of proceeding is by - 92 may be filed without leave of the court - - ib. frame of ------- ib. See Bill. REVIVOR, BILL OF, frame of ........ fQ course of proceeding upon ... 75^ 77 practice in relation to - - - - - 77 in New- York ... 77^ note (1) instances in which not necessary - - 58, et seq. instances in which court has acted without - 77 where plaintiff" has no title to revive - - 289 barred by Statute of Limitations - - - 290 Sec Answer. Bill. Demurrer. Plea. REVIVOR, BILL IN NATURE OF BILL OF where the course of proceeding is by - - 97 frame of ------ - ib. See Bill. Costs. Decree. RIGHT. See Custom. Record. s. SCANDAL in bill 48 in answer ..,...-. 313 INDEX. SCANDAL PAGE. nothing relevant considererl as ... ib. crsis in strictness to be paid by counsel - - 48. 318 SCIRE FACIAS subpoena in nature of ----- 69 SEISTENCE. See Judgment. SEPARATION. See Divorce. SK'JTLEMEISTS - 279 SiMOiNY. See Demurrer to Discovery. SOLICITOR GENERAL - - 22 and note. 99. 102 See Parties. SPECIFIC PERFORMANCE, ^ee Agreevient. STATING PART. See Bill. STATUTE. See Plea. SPEAKING DEMURRER - - - 213, note (1) STATUTE OF FRAUDS, as to eflect of insisting on, by plea or by answer, 268, note. See Agreeriient. Discovery. Trust. STATUTE OF LIMITATIONS, where it applies, and where the court is influenced by analogy to ii, ... 272, 273, and note. as to its application to a suit in equity, or to a decree 273 See Acknoicled gment. Demurrer. Discovery. Plea. Revivor. SUBPCENA ------- 37 to rejoin ------- 323 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 severallj^ instituted 21 one on behalf of infant referred to a master to ascertain whether for infant's benefit - - 27 and note. two on behalf of infant, referred to inquire which most for infant's benefit . . . - . ib. new, how they become necessary - - - 17 See Statute of Limitations. SUPPLEMENT, lilLL OF, cases in which filed ... 61. 63. 82 note objects of ....... 62 frame of ........ j^ course of proceeding upon .... - ib. insti'.nce in which coaii proceeded without 74, note after decree ....... 64 See Bill. Plea. SUPPLExMENT, BILL IN NATURE OF BILL OF, where course of proceeding is by - - - 98 frame of -------- 99 See Bil'- INDEX. PAGE. SUPPLEMENTAL BILL, IN NATURE OF BILL OF REVIEW, where course of proceeding is by ... 90 affidavit necessary upon application for leave to file, 91 frame of -------- ib. See BUI. Demurrer. -Pica. SURRENDER of copyhold defective - ' - . 116 TENANT. See Copyhold. Interpleader. TENANT IN TAIL. See Decree. Parties. TERMS, OUTSTANDING, where setting lip of restrained ... 134 TESTIMONY. See Bill. Perpetuation. TIME, lapse of, as to demurrer founded on, see Bill of Review 212 to plead, answer or demur, rules in relation to 208 and note lapse of, to answer, after plea or demurrer overruled 317 See Discovery. Statute of Limitations. TITHES - . - 125 TITLE OF PLAINTIFF, instances in which to be established at law before equity, will interfere ------ 54 as to this court's consideration of the legal or equitable, 199 See Ansv^er. De7iiurrer. Plea. Record. TRADING!, ACTS OF. See Demurrer to Discovery. TRESPASS 137 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 267 TRUST-FUND See Parties. TRUSTEES. See Answer. Parties, TRUSTS 133 u. UNITED STATES suits by and ag linst - - - 31, note (1) USURY. See Demurrer to Discovery. V. VERDICT. See Judgment. w. WAIVER of forfeiture - 287 of penalty -.-.-. jgg INDEX. WA STE, PAGE. legal . 114, 115, and note. 136, 137, 138, r9, 140 equitable - - - - - 115, not 140 pendente lite - ... - 136 '"^7 penally and forfeiture in case of - - 138, 139 ought to be waived in bill seeking to restrain - r - loi^ WILL, obtained by fraud - - t - r 257 See Plea. WILLS, Courts of Equity will not decide upon their validity, 123, n )tes WITNESS made defendant, discovery by, not compelled - 283 See Demurrer. JExamination. Plea. WRITINGS. See Deeds. Delivery. FINIS, ^ -^ c^,*? '"*i»*^»>s>'jr.>eu(i«»t*v»**^*<'* r^. f j<«^ ■'f ^ /^ '^ ■ ^ / «s«»v ^-i^.'i^^^ ##-€4f^ C<^-^i^.««? ZZ^^ >^ i i^-2^ ^*^ ■>«9aB«M«**««**^^ „ ,. 11 ^-f U/fi /TT*^, V../4.C r i- J •• /^./ *. f Imt. .-^^-t-'^ " ^^ <«* a ^i^. ^■'-. ;^ -4.*J^^^. ^^^ . .•■f.*~^!%^^4f.*,ik i^':«t-.t# «>«^ ^(St.«^.^__ ^ .^> Ct ^»^'-5^i tA, II ^ . V^ '/^'^. ,w V ^. f'TTl,^^ I L\% , /,v_-^.^ ^^.-^ ^.h^^.^ ■' '/-> A-^-- 7^ . ^.^V