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 «
 
 UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW 
 LIBRARY 
 
 BOOK STC 
 
 ' BATON ROUG 
 
 u^^
 
 PLEADING AND PRACTICE 
 
 HIGH COURT OF CHANCERY,
 
 PLEADING AND PRACTICE 
 
 OF THE 
 
 HIGH COURT OF CHANCERY. 
 
 BY THE LATE 
 
 ED.AIUND ROBEET DANIELL, 
 
 BARKISTER-AT-LAW ; 
 WITH THE SUBSEQUENT ADDITIONS AND IMPROVEMENTS OF 
 
 THOMAS EMERSON HEADLAM, M.P., 
 
 ONE OF HER MAJESTY'S COUNSEL; 
 AND THE STILL LATER ADDITIONS, ALTERATIONS, AND IMPROVEMENTS OF 
 
 LEONARD FIELD, EDWARD C. DUNN, 
 
 BARRISTERS-AT-LAW; AND 
 
 JOHN RIDDLE, 
 
 OF THE MASTER OF THE ROLLS' CHAMBERS. 
 
 FOURTH AMERICAN EDITION. 
 
 WITH NOTES AND REFERENCES TO AMERICAN DECISIONS ; AN APPENDIX OF 
 
 precedents; and other additions and IMPROVEMENTS, 
 
 ADAPTING THE WORK TO THE DEMANDS OF 
 
 AMERICAjS" practice in CHAIS^CERY. 
 
 By J. C. PERKINS, LL.D. 
 
 Vol. I. 
 
 BOSTON: 
 
 LITTLE, IJROWN, AND COMPANY. 
 
 1871.
 
 
 Entered according to Act of Congress, in the j'ear 1871, by 
 
 J. C. PERKINS, 
 
 In the Office of the Librarian of Congress at Washington. 
 
 fy£/u<i>'ric- 
 
 I'X^ 
 
 7r ^f 
 
 CAMUItlUOE: 
 PBESS OF JOHN WILSON AND SON.
 
 TO THE HONORABLE 
 
 CHAKLES SUMISTEE, 
 
 OF THE SENATE OF THE UNITED STATES, 
 
 THIS AMERICAN EDITION OF DANIELL'S CHANCERY PRACTICE 
 
 IS INSCRIBED, 
 
 IN TESTIMONY OF KEGAKD FOlt HIS THOEOUGH JURIDICAL 
 
 LEARNING, ACCOMPLISHED SCHOLARSHIP, AND 
 
 GENUINE PHILANTHROPY, 
 
 BY 
 
 J. C. PERKINS.
 
 PREFACE TO THE FOURTH AMERICAN EDITION. 
 
 The high reputation and great popularity of Daniell's Chan- 
 cery Practice in England are clearly indicated by the rapid issue 
 of successive editions of the work from the English press. Two 
 editions— the fourth and fifth— have been published in that coun- 
 try since the publication of the third American edition in 1865. 
 The intrinsic merits of the book have rendered it the standard of 
 reference in English Chancery practice. The fourth and fifth Eng- 
 lish editions contain many additions to, and improvements upon, 
 the third English edition. Most of these are too minute to be speci- 
 fied. The two most prominent changes consist, 1st. In restoring 
 to the work Mr. Daniell's elaborate chaJDter on " Parties," nearly 
 the whole of which was omitted in the third English edition, under 
 an apparent misapprehension, existing at the time of its publication, 
 that the part omitted had become unnecessary or obsolete in con- 
 sequence of the changes which had then recently been made affect- 
 ing that subject. This chapter was restored entire in the third 
 American edition by the American editor. It has also been found 
 still necessary to the work in England, and has consequently been 
 restored, with additions and improvements, in the fourth and fifth 
 English editions. 2d. In the introduction of several new sec- 
 tions, devoted to Cross Bills, Bills of Interpleader, and Bills of 
 Review, — upon which subjects sections had previously been 
 introduced into tlic third American edition by the American 
 editor, — and in the addition of other sections upon Bills of Dis- 
 covery, Bills to Perpetuate Testimony, Bills to Impeach Decrees 
 for Fraud, and Bills to carry Decrees into Execution, which had 
 never before been published in any edition of the work. All of 
 these are embraced in this edition.
 
 vl rUEFACE TO THE FOURTH AMERICAN EDITION. 
 
 Fre(|\uMit references I'or Conns are made in these volumes to 
 "Vol. III." l>y this is intoiuled a volume of English Forms and 
 Precedents prepared by Leonard Field and Edward Clennell Dunn, 
 Barristers-at-Law, and John Riddle, of the Master of the Rolls' 
 Chamhers, and issned as a companion volume to the English work : 
 such of these forms as appeared to bo useful for American prac- 
 tice have been included in the third volume of this edition. Other 
 valuable forms have 'been added. 
 
 The index to the third English edition was extremely meagre. 
 A much more copious index was prepared for, and appended to, the 
 third American edition. The fourth English edition was provided 
 with a vastly more alnmdant index than the third. The extent of 
 this has been still further increased in the fifth English edition ; so 
 that the index alone now occupies over three hundred and fifty 
 pages, — a small volume of itself. The arrangement is such, how- 
 ever, that this copiousness creates no confusion, but on the con- 
 trary secures ready access to the most minute details of the work. 
 This index, thus amplified and improved, has been adopted and 
 followed by the American editor, with only such changes and addi- 
 tions as have become necessary in consequence of the additions 
 and changes made to the text, and for the purpose of facilitating 
 reference to the notes in the American edition. 
 
 In order that no available means of reference to the contents of 
 these volumes should be omitted in this edition, the editor has 
 retained the marginal or side notes, which were omitted in the 
 third American edition : these, it is confidently believed, though 
 constituting a very expensive feature in the publication, will be 
 found serviceable to the profession in a corresponding degree. 
 
 During the time necessarily consumed in the progress of this 
 work through the press, important decisions have been made or 
 come to the knowledge of the editor, which could be availed of only 
 in the shape of Addenda ; and, in order that the benefit of these 
 decisions may not be lost to the edition, a department of Addenda 
 has been prepared and inserted in the third volume. References 
 to it are made in the Table of Cases, and in the General Index. 
 
 The Table of Cases will be found in the third volume. In the 
 same volume arc the General Index and the Index to the Appendix 
 of Forms. This arrangement has been adopted, both for the pur- 
 pose of equalizing the size of the different volumes, and also for
 
 PREFACE TO THE FOURTH AMERICAN EDITION. Vll 
 
 the purpose of embodying all the means and facilities for reference 
 in the same volume. 
 
 Over sixteen thousand cases — about ten thousand in the Eng- 
 lish edition, and over sis thousand additional in the American 
 edition — have been cited and referred to in this work. It is 
 scarcely possible that errors have not occurred in this multitude of 
 citations ; but the editor has endeavored as much as possible to 
 avoid them, and it is confidently hoped that none of any importance 
 will be found to exist. 
 
 For other particulars, the reader is referred to the Preface to the 
 third American edition. 
 
 J. C. PERKINS. 
 
 October 1, 1871.
 
 PREFACE TO THE THIRD AMERICAN EDITION. 
 
 This third American edition of Daniell's Chancery Practice 
 is based upon the third English edition of the work, which was 
 published after, and has been adapted to, the great and important 
 changes recently made by Acts of Parliament, and Rules and Gen- 
 eral Order of Court, in the Chancery Practice of Great Britain. 
 In the order of subjects treated in this work, the first important 
 change has been made in regard to " Parties to a Suit." Hereto- 
 fore it has been recognized in England, and, to a great extent, in 
 the United States still is recognized, as a general principle, " that 
 a person seeking relief in Equity must bring before the Court all 
 such parties as were deemed necessary to enable the Court to do 
 complete justice." " That the rights of all persons interested in 
 the subject-matter of the suit should be bound, so that the per- 
 formance of the decree might be perfectly safe." But it has re- 
 cently l^een enacted in England, among other provisions, that 
 " the Court may adjudicate upon questions arising betw.een par- 
 ties, notwithstanding that they may be some only of the parties in- 
 terested in the property respecting which the question may have 
 arisen." And again, " No suit shall be open to objection on the 
 ground that a merely declaratory decree is sought thereby." The 
 general result of the new rules in reference to parties is, that tech- 
 nicalities of all kinds are now banished from the subject, and it 
 is only necessary, in every suit in Equity, to make such persons 
 parties as are clearly and obviously, from the nature of the case, 
 necessary, namely, those against whom direct relief is sought ; 
 and even wlicn all the persons against whom direct relief is sought 
 cannot be, or, in fact, are not brought before the Court, the relief 
 will, in some cases, be modified and granted to such an extent and
 
 X PREFACE TO TllK THIRD AMERICAN EDITION. 
 
 in such form :is is consistent with justice in the somewhat defec- 
 tive state of the record.^ But as these rules have not yet been 
 adopted, to any considerable extent, at least in the Chancery Prac- 
 tico of this country, it has been found necessary to retain in, or 
 restore to, this American edition the former elaborate chapter of 
 Mr. Daniell on the subject of I'artics. 
 
 The comparative simplicity of all modern proceedings both in 
 England and in this country, which have largely diminished the 
 length of time during which suits in Chancery remain in Court, 
 and the facilities with which, according to existing practice, amend- 
 ments are made and defects remedied, have rendered almost obso- 
 lete some of the divisions and subdivisions, and many of the other 
 distinctions and refinements of former treatises on the subject of 
 bills. Some important changes have been made in England in the 
 forms of bills, the advantages of which are so obvious, that it may 
 be well worthy of consideration whether they ought not, in whole or 
 in some modified shape, to be adopted in this country. The form 
 of a bill prescribed by the 14th of the General Orders of August, 
 1852, wliich will be found in the " Appendix of Forms," 1012-1914, 
 is a model of brevity, clearness, and precision. The bill is re- 
 quired to be printed, and in that shape filed in Court, and a printed 
 copy of the bill is also to be served upon the defendant. It will be 
 perceived that the form of bill referred to differs from a well-drawn 
 bill under the former practice in three important particulars ; name- 
 ly, the numbering of the paragraphs, the omission of the interrog- 
 atories, and of the prayer for process. As to the interrogatories, it 
 is peremptorily enacted " that the Bill of Complaint shall not con- 
 tain any interrogatories for the examination of the defendant." 
 But the plaintiff is at liberty to file interrogatories separately from 
 the bill for the examination of any defendant from whom he re- 
 quires an answer, and no defendant is required to answer the bill 
 unless interrogatories are so filed, and a copy of them delivered to 
 him or to his solicitor. The prescribed form of interrogatories will 
 be found in Volume I. p. 376. The necessity for a prayer for 
 process is obviated by the prescribed mode of service, namely, by 
 a printed copy of the bill, which has the same effect on the defend- 
 ant as the service of a writ of subpoena. 
 
 But altiiough tlie form of a bill is thus made more simple un- 
 der the present English practice, all the material and substantial 
 
 1 See Palmer v. Stevens, 100 Mass. 461.
 
 PREFACE TO THE THIRD AMERICAN EDITION. xi 
 
 parts are still necessary, and are elaborately treated as heretofore 
 in these volumes. 
 
 The service of a printed copy of the bill is to be made in the 
 same manner and with the same effect as the service of a sub- 
 pee na, and the rules applicable to the service of the one are alike 
 applicable to the service of the other. 
 
 Until the Act 15 & 16 Vict. c. 86, amending the practice of the 
 Court of Chancery, the general mode of examining witnesses in 
 Equity was by interrogatories m writing, exhibited by the party 
 plaintiff or defendant, or directed by the Court to be proposed to 
 or asked of the witnesses in a cause, touching the merits thereof 
 or some incident therein. This practice has, however, been almost 
 entirely abolished in England, and a new system substituted in its 
 place by recent statutes and orders of court. 
 
 Under the somewhat plenary powers conferred upon the Judges 
 by the above Act of Parliament, it was directed by the Orders of 
 June, 1854, that the plaintiffs and defendants respectively should 
 be at liberty to transfer their cases respectively, either wholly or 
 partially by affidavit, or wholly or partially by the oral examina- 
 tion of witnesses before an examiner. By this Act particular pro- 
 visions were made both for the mode of taking testimony by affi- 
 davit and that of taking it by oral examination, the substance of 
 which, so far as they related to the mode of taking evidence by 
 oral examination before an examiner, was adopted by the Supreme 
 Court of the United States in March, 1862, by an amendment of 
 the 67th Equity rule of tliat Court. This amended rule is still in 
 force in that Court, although it has, by the General Orders of Feb- 
 ruary, 1861, been abrogated to a great extent in England. 
 
 But under this amendment testimony may still be taken in cer- 
 tain cases in the ohi form, upon written interrogatories and cross- 
 interrogatories ; and, as this latter method is still in use in some 
 other courts in the Uiiited States, it has been thought expedient 
 to preserve the subijtance of that part of the work pertaining to it. 
 
 It is not known to the American editor that the Englisli mode 
 of taking testimony by affidavit has been adopted anywhere in this 
 country. 
 
 In addition to these modes of adducing testimony, it is provided, 
 by the Act of Parliament referred to, tliat " the Court may, upon 
 the hearing of any cause, if it shall see fit to do so, rc(|uire the 
 production and oral examination before itself of any witness or 
 party in the cause."
 
 Xii TREFACE TO TlIK 'H11KD AMERICAN EDITION. 
 
 Ti\is power conforrod upon the Court of requiring the i)roduc- 
 tion luid oral examination of witnesses before itself has opened the 
 way for the adoption, in the new series of General Orders of Feb- 
 ruary, 1801, of some important rules of practice in regard to the 
 viva voce examination of witnesses in some cases, and the oral 
 cross-examination and re-examination of deponents and witnesses 
 and parties in others, before the Court itself at the hearing of the 
 cause. Under these General Orders, the Court has very much 
 limited and restrained the right of parties to require, by notice or 
 otherwise, that the evidence in chief, to be used at the hearing of 
 a cause, shall be taken orally ; while it has at the same time very 
 carefully fostered and regulated the mode of taking testimony by 
 aftidavit ; to which end, except as to matters in reference to which 
 evidence in chief is to be taken viva voce at the hearing, each 
 party in a cause in which issue is joined shall be at liberty to 
 verify his case either wholly or partially by affidavit, or wholly or 
 partially by the oral examination of witnesses ex parte before an 
 examiner, no party having a right to be present at the taking of 
 such ex parte examination except the party producing the wit- 
 ness, his counsel, solicitor, and agents, and every examination so 
 taken ex parte is deemed to be an affidavit. 
 
 Under Rule 3 of the General Orders above cited, " in any cause, 
 in which issue is joined, the plaintiff or any defendant may apply 
 to the Judge in chambers for an order that the evidence in chief 
 as to any facts or issues (such facts and issues to be distinctly and 
 concisely specified) may be taken viva voce at the hearing, and 
 the Judge may make an order that the evidence in chief as to such 
 facts and issues, or any of them, shall be taken viva voce at the 
 hearing accordingly ; and where any such order shall have been 
 made, the examination in chief, as well as the cross-examination 
 and re-examination, shall be taken before the Court at the hear- 
 ing as to the facts and issues specified in such order." To this ex- 
 tent, at least, the practice in England at the present time seems to 
 approach the system wliich prevails in Massachusetts, of taking 
 the evidence in Equity proceedings in the same manner as in suits 
 at Law. This mode of proceeding seems to be well adapted to the 
 trial of that class of facts and issues which were formerly directed 
 to be tried ]>y a jury in a Court of Common Law, but which under 
 the Chancery Amendment Act the Court itself has the power to 
 determine ; and for the trial of that class of facts and issues this
 
 PEEFACE TO THE THIRD AMERICAN EDITION. xiii 
 
 mode of examining witnesses orally at the hearing may have been 
 chiefly intended. In other cases the practice of taking testimony 
 orally before the Court at the hearing goes no further than to the 
 oral cross-examination and re-examination of deponents, witnesses, 
 and parties who have given their affidavits in some of the forms 
 allowed. 
 
 I have been led to these observations upon the different methods 
 of taking testimony in Equity causes, for the reason that the sub- 
 ject itself is not exceeded in importance and difficulty by any other 
 branch of Chancery Practice. The failure of the Court in Eng- 
 land, with the power conferred upon it, in these frequent changes 
 to adopt for all cases the same method of taking testimony in 
 Equity which is pursued at Law, indicates a settled conviction 
 that the method which is so well adapted to the latter cannot in 
 general be applied to the former, or, at least, only so far as certain 
 facts and issues arising in Equity hearings are of the same general 
 character, and present themselves in the same general shape as in 
 trials at Law. 
 
 By recent statute in England the office of Master in Chancery 
 has been abolished, and the business formerly conducted in the 
 Master's Office is now transacted under the more immediate direc- 
 tion and control of the Judges of the Court. " Proceedings in the 
 Judges' Chambers " have taken the place of " Proceedings in the 
 Master's Office." But as no such change has been made in this 
 country, and the " Master's Office " still exists here, the chapter in 
 the former editions of Daniell relating to " Proceedings in the 
 Master's Office" has in substance been retained, and some addi- 
 tions have been made to it, namely, in regard to the rules of 
 accounting between mortgagor and mortgagee, and between part- 
 ners. And as a large amount of the business in Courts of Equity 
 in tlie United States is done at chambers, the chapter in the new 
 English edition relating to proceedings in the Judges' Chambers 
 has been retained in this American edition, in a separate form, so 
 far as it is not included in the chapter on " Proceedings in the 
 Master's Office." 
 
 And it may Ijc added, generally, that in all cases where the 
 recent changes in P^nglisli practice have caused the omission of 
 any i)art of the former editions of Daniell, which has been found to 
 be, and still is, useful in American practice, the editor has been 
 careful to restore it or supply the omission of that part iu some
 
 xiv rKKFACK TO THK THIRD ARIKKICAN EDITION. 
 
 Other way ; uiul no part ol' the last English edition of Danicll has 
 been omitted which bears upon the present i)ractice in the Ameri- 
 can Courts of Chancery, or which may furnish models for future 
 changes here, if found desirable. 
 
 The notes to this edition have been combined and made homo- 
 geneous with the notes of the P]nglish edition. 
 
 An entirely new feature in this work is the Appendix of Forms. 
 The introduction of this Appendix has considerably increased the 
 size of the volumes beyond what was originally contemplated. It 
 has been snpplicd by the American editor because of the desire 
 often expressed that such an addition should be made, and be- 
 cause it is believed that it will be of great practical value to the 
 work. 
 
 Part I. of the Appendix contains a large collection of forms of 
 Bills, which have been taken, part from Tripp's Book of Forms, 
 whicli has been published in England since the new Chancery sys- 
 tem has been adopted there, some from the Equity Draftsman, 
 others from Willis, and many have been collected by the compiler 
 from the records of the Circuit Court of the United States for the 
 District of Massachusetts, and from the records of the Supreme 
 Judicial Court of Massachusetts. 
 
 Part II. consists of forms of the various modes of defence to 
 suits in Equity, and other miscellaneous forms, namely, of Demur- 
 rers, Pleas, Answers, Replications, Notices of Motion, Petitions 
 and Motions, Affidavits, and Summonses. These have been selected 
 generally from Tripp's and Willis's Books of Forms, and from the 
 records of courts. 
 
 Part III. contains a full collection of forms of Decrees, taken 
 partly from the last English edition of Seton, in two volumes, pub- 
 lislied in England in 18G2, and also from the reports of Chancery 
 cases in England and America, and from the records of the courts. 
 The importance of a correct and well-drawn decree, compared with 
 other proceedings in a cause, is hardly to be over-estimated. Upon 
 this subject Mr. Seton remarks as follows : " The judgments of the 
 Courts of Law are usually simple in their form ; but the decrees of 
 the Courts of Equity, from the nature of the relief given by them, 
 the number of the parties often interested in the suit, the various 
 questions to be determined and circumstances to be dealt with, are 
 generally much more complicated. 
 
 " In the separate .branches, however, of equitable jurisdiction.
 
 PREFACE TO THE THIRD AMERICAN EDITION. XV 
 
 the forms of the decrees and orders by which the Court gives eifect 
 to its determinations, are generally well established, and for the 
 most part uniform ; and upon this ground they are usually referred 
 to as regulating the practice, and elucidating the law and procedure 
 of the Court. 
 
 " The great utility of consulting them, and the advantages of 
 adhering to the settled and well-understood forms and language of 
 the Court, have been repeatedly adverted to by some of its most 
 eminent judges. 
 
 " The forms of decrees may be also useful with a view to fram- 
 ing bills, the prayer of the bill being that part upon which the 
 frame of it principally depends, and the decree being obviously the 
 best guide to the prayer." 
 
 In matters of reference, the order or decree therefor contains the 
 only authority which the Master may exercise, and the parties can- 
 not go beyond its express directions in their inquiries before him. 
 The forms of decrees or orders for this purpose are useful, not only 
 in showing what may be referred, but also in giving the form of 
 language in which the subjects of reference may most correctly be 
 expressed. 
 
 As to final decrees, they are the authoritative source from which 
 the matters settled by the Court are to be ascertained, both for the 
 enforcement of the determination of the Court in tlie particular 
 case, and for invoking it as a plea or defence in any other suit that 
 may be brought for the same matter. It is ho})ed that the consul- 
 tation of the forms here presented may conduce to accuracy and 
 uniformity in the framing of decrees. It will of course be under- 
 stood that considerable alterations have been necessary in the 
 forms of decrees collected from other sources than professed 
 books of forms. They have been found so variant in shape and 
 expression that no approach to uniformity could otherwise be 
 attained. 
 
 The editor has added to the Appendix an entire collection of the 
 Rules of Practice for the Courts of Equity of the United States, 
 adopted and promulgated by the Supreme Court. The general body 
 of tlicse rules was adopted in January, 1842 ; the remainder are 
 all those that have been adopted by way of amendment or other- 
 wise since that time. No other full collection of tliem is known to 
 exist in any other publication. Tiicsc rules arc in use, and form a 
 part of tlie system of Equity practice in every judicial circuit of
 
 Xvi PREFACE TO THE THIRD AMERICAN EDITION. 
 
 the United States, and they have hcen constantly cited and referred 
 to in this work. 
 
 With those explanations, these volumes are respectfully submit- 
 ted to the indulgence of those for whose use the labor of preparing 
 them has been undertaken. 
 
 J. C. PERKINS. 
 December 1, 1865.
 
 PREFACE TO FOURTH ENGLISH EDITION. 
 
 In preparing the fourth edition of Daniell's Chancery Prac- 
 tice, the endeavor of the editors has been to alter as little as 
 possible the original text of a work which has attained so high a 
 reputation, but, at the same time, to make the present edition 
 a correct text-book of the existing practice of the Court ; and al- 
 though it has appeared to them that the plan of the work might in 
 some respects be amended, they have (except in some few in- 
 stances) considered it better not to alter an arrangement with 
 which most practitioners in the Court are well acquainted. 
 
 The substance of the General Orders and Acts of Parliament 
 affecting the practice of the Court (with the exception of the 
 "Winding-up Acts, which seemed rather fitted for a separate 
 treatise) has been stated ; and in the second volume will be 
 found a full description of the practice on trials by jury. 
 
 A companion volume, containing precedents of pleadings, and 
 forms of all the proceedings in use in the Court, with references 
 to the Practice, and which will, it is hoped, prove useful to both 
 branches of the profession, is in active preparation. It will be 
 published, as a separate work, shortly after the completion of the 
 second volume. 
 
 Tiie cases have been added to the time of publication. Great 
 care has been taken to insure correctness in the references, and 
 the editors hope that in this respect few errors of importance will 
 be found. 
 
 The tlianks of the editors are due to Mr. II. Cadman Jones for 
 the use of his valuable notes, and to many other members of the 
 bar for tlieir kind assistance, and also to many of the officers of 
 the Court for information as to the practice in their various de- 
 partments. 
 
 The proof-sheets have ])cen read by Mr. Braithwaite, of the 
 Record and Writ Clerks' Office, whose assistance lias been of 
 great utility.
 
 PREFACE TO FIFTH ENGLISH EDITION. 
 
 In preparing tliis edition of Daniell's Chancery Practice, the 
 editors have spared no lahor to render it deserving of a continu- 
 ance of the favor with which the fourth edition was received. 
 
 The work has heen, for a considerable time, out of print, and 
 this edition was ready for the press, and would have been pub- 
 lished at a much earlier date, had it not been delayed in conse- 
 quence of tbe proposed re-arrangement of the Consolidated and 
 General Orders of the Court. 
 
 The Statutes, General Orders, and Cases subsequent to the last 
 edition, and affecting the subject of the work, have been noticed ; 
 but the gei>eral plan and arrangement have not been altered. 
 
 The editors return their thanks to their friends of the Chancery 
 Bar, who have made some useful suggestions, and pointed out 
 some errors in the fourth edition. It is not to be expected that 
 a work containing so many references should be free from errors, 
 but the editors have endeavored to render them as few as 
 possible. 
 
 The editors also return their thanks to several officers of the 
 Court for information as to the practice in their several de- 
 partments. 
 
 The proof sheets have been- read by Mr. Braithwaite, of the 
 Record and Writ Clerks' Office, and by Mr. Upjohn, of the Master 
 of the Rolls' Chambers, whose assistance has been of great value. 
 
 Lincoln's Inn, November, 1870.
 
 CONTENTS. 
 
 VOLUME I. 
 
 CHAPTER I. 
 
 PAGE 
 
 THE COMMENCEMENT OF A SUIT 1-4 
 
 CHAPTER 11. 
 
 PERSONS BY WHOM A SUIT MAY BE INSTITUTED. 
 
 Sect. I. The Queen's Attorney-General 5-16 
 
 II. Foreign Governments and States 17-20 
 
 III. Corporations and Joint-Stock Companies . 20-26 
 
 IV. Persons residing out of the jurisdiction 27-36 
 
 V. Paupers 37-44 
 
 CHAPTER ni. 
 
 SUITS BY PERSONS WHO ARE UNDER DISABILITY. 
 
 Sect. I. Generally 45 
 
 II. Aliens 4<3-53 
 
 III. Persons attainted or convicted 53-.58 
 
 IV. Bankrupts 5S-G6 
 
 V. Infants 00-82 
 
 VI. Idiots, lunatics, and persons of unsound mind ' 82-80 
 
 VII. Married women 87-128 
 
 CHAPTER IV. 
 PERSONS AGAINST WHOM A SUIT MAY BE INSTITUTED. 
 
 Sect. T. Generally ]2(i-lo0 
 
 II. The Queen's Attorney-General l.SO-140 
 
 III. Forei};n Governments, States, and Ambassadors 141-112 
 
 IV. Corporations and .Jr)int-Sto(k Comjtanies I1.!-1IM 
 
 V. Persons out of the jurisdiction of the Court IC.i-lAt 
 
 VI. Paupers 104-150 
 
 VII. Persons outlawed, attainted, or convicteil 150 
 
 VIII. Bankrupts 157-100 
 
 L\. Infants 10O-175 
 
 X. Idiots, lun.'itics, and persons of unsound mind 17.V178 
 
 XI. Married women 178-189 
 
 VOL. I. c
 
 XX CONTENTS. 
 
 CHAPTER V. 
 
 PARTIES TO A SUIT. 
 
 PAUE 
 
 Skit. I. Nocessnry piirtii's, in respect of the concurrence of tluir interests 
 
 will) tlint of tlio pliiintitr rjO-245 
 
 II. riirtio.-i to a snit, in resjioct of their interest in resisting; the de- 
 mands of the phiintitf 246-286 
 
 III. Ohjections for want of parties 286-2',)6 
 
 IV. Joinder of uninterested parties 2U5-304 
 
 CHAPTER VI. 
 THE BILL. 
 
 Sect. I. Tlie different sorts of bills 305-306 
 
 II. Tile authority to file the hill 306-311 
 
 III. By wlioni prepared 311-313 
 
 IV. The matter of the bill 313-365 
 
 V. The form of the bill 355-391 
 
 Generally 355-357 
 
 1. Address of the bill 357 
 
 2. Names and addresses of the plaintiffs 357-360 
 
 3. Statins part 360-372 
 
 4. Charge of confederacy 372 
 
 5. Charginj,' part 372-374 
 
 6. Interrogating part 374-377 
 
 7. The prayer tor relief 377-389 
 
 8. Prayer for process 389-391 
 
 VI. In what cases the bill must be accompanied by an affidavit . . 392-396 
 
 VII. Printing and fiUng the bill 396-407 
 
 VIII. Amending the bill 401-422 
 
 CHAPTER VII. 
 
 PROCESS BY SERVICE OF A COPY OF THE BILL ON FORMAL DE- 
 FENDANTS, AND PROCEEDINGS BY SERVICE OF NOTICE OF 
 THE DECREE. 
 
 Sect. I. Process by service of a copy of the bill on formal defendants . . 428-432 
 II. Proceedings by service of notice of the decree 432-438 
 
 CHAPTER VIII. 
 
 PROCESS TO COMPEL, AND PROCEEDINGS IN DEFAULT OF, 
 APPEARANCE. 
 
 Sect. I. Service of the copy of the bill 439-456 
 
 II. Proceedings wiicre no service of a copy of the bill can be effected 456-460 
 
 III. Proceedinirs by tiio plaintiff, where service of the copy of the bill 
 
 has Ijeen effected 400-4^2 
 
 IV. Against particular defendants 472-479 
 
 CHAPTER IX. 
 
 INTERROGATORIES FOR THE EXAMINATION OF THE DE- 
 FENDANTS IX ANSWER TO THE BILL 480-487
 
 CONTENTS. XXI 
 
 CHAPTER X. 
 
 PROCESS TO COMPEL, AND PROCEEDINGS IN DEFAULT OF, 
 
 ANSWER. 
 
 PAGE 
 
 Sect. I. Against defendants not privileged, nor subject to disability . . . 488-496 
 
 IL Against particular defendants 496-504 
 
 III. Etlect of a contempt upon the proceedings in the cause .... 504-507 
 
 IV. In what manner contempts in process mav be cleared, waived, or 
 
 discharged ' 507-513 
 
 V. Process by filing a traversing answer, or traversing note .... 513-516 
 
 CHAPTER XI. 
 
 TAKING BILLS PRO CONFESSO. 
 
 Sect. I. Preliminary order 517-525 
 
 II. Hearing, decree, and subsequent proceedings 525-532 
 
 CHAPTER Xn. 
 
 THE DEFENCE TO A SUIT ' 533-535 
 
 CHAPTER XIII. 
 
 APPEAR^VNCE 536-541 
 
 CHAPTER XIV. 
 
 DEMURRERS. 
 
 Sect. I. The general nature of demurrers 542-546 
 
 II. The different ixround.s of demurrer 547-584 
 
 in. Tlie form of demurrers 585-591 
 
 IV. Filing, setting down, and hearing demurrers 591-597 
 
 V. The effect of allowing demurrers 597-599 
 
 VI. Tiie effect of overruling demurrers 000-G02 
 
 CHAPTER XV. 
 
 PLEAS. 
 
 Sect. I. The general nature of pleas 003-625 
 
 II. Tlie different grounds of pleas 625-681 
 
 III. Form of pleas 681-689 
 
 IV. Swearing, filing, setting down, an<l arguing pleas (J89-<')96 
 
 V. Allowing pleas 696-699 
 
 VI. Saving the benefit of a plea to the hearing (;99-7<H) 
 
 VII. Ordering a i)Iea to .stand for answer 700-701 
 
 VIII. Overruling pleas 701-703 
 
 IX. Amending pleas, and pleading c/»; Horo 703-705 
 
 CHAPTER XVI. 
 
 DISCLAIMERS 706-710
 
 CONTENTS. 
 
 CHArTKR xvir. 
 
 ANSWERS. 
 
 Sect. I. General naluro of answers .... 
 II. Fiirm of answers 
 
 III. Swearin-r, tiling, and printing answers 
 
 IV. r.xeeptions to answers 
 
 V. Further answers — answers to amendetl bills 
 VI. Amending answers — sujjplemental answers 
 
 VII. Taking answers ott' the tile 
 
 VIII. From what time answer deemed sutficient 
 
 PAOE 
 
 711-7-J'.) 
 72'J-7:!8 
 738-7r)8 
 758-774 
 
 784-786 
 786 
 
 CHAPTER XVIII. 
 
 THE JOINDEK OF SEVERAL DEFENCES. . 
 
 787-789 
 
 CHAPTER XIX. 
 
 DISAIISSING BILLS, OTHERWISE THAN AT THE HEARING, AND 
 STAYING PROCEEDINGS. 
 
 Sect. I. Generally 790-801 
 
 II. For want of proseeution 801-812 
 
 III. Where the suit has ahated, or become otherwise defective . •. . 812-815 
 
 IV. Cases of election • • 815-818 
 
 CHAPTER XX. 
 MOTION FOR A DECREE 819-827 
 
 CHAPTER XXI. 
 
 REPLICATION 828-835 
 
 CHAPTER XXII. 
 
 EVIDENCE. 
 
 Sect. I. Admissions 886-841 
 
 II. The onus proband! 849-857 
 
 III. Confined to matters in issue 852-865 
 
 IV. Of the effect of a variance 860-869 
 
 V. Documentar}' evidence which proves itself 862-872 
 
 VI. Documentary evidence which does not prove itself 874-880 
 
 VII. Proving exhibits at the hearing under an order 881-881 
 
 VIII. Who may be witnesses 885-883 
 
 IX. 'Manner of, and time for, taking evidence 887-892 
 
 X. Atiidavits, and ex parte examinations before an examiner . . . 891-904 
 
 XI. I Vwi foce evidence 903-925 
 
 XII. Interrogatories 920-921 
 
 XIII. Examination of witnesses by the examiner on interrogatories . . 926-930 
 
 XIV. Examination of witnesses de bene esse 932-946 
 
 XV. Demurrers by witnesses 942-942 
 
 XVI. Publication 945-951 
 
 XVII. Suppression of depositions ' 950-955 
 
 XVIII. Re-examination of witnesses 952-950 
 
 XIX. Examination of witnesses after publication 955-961
 
 THE 
 
 PRACTICE 
 
 THE HIGH COURT OF CHANCERY. 
 
 CHAPTER I. 
 
 THE COMMENCEMENT OF A SUIT. 
 
 The practice of the Court of Chancery, and of its various offices, Practice of 
 is regulated by rules laid down in Acts of Parliament, in the Gen- [Jg^offieerby 
 eral Orders of the Court, passed or promulgated from time to time, M-hatregu- 
 in the Regiilations of the Judges for the conduct of business in 
 their chambers, and of the Registrars of the Court respecting the 
 transaction of business in their office ; and by custom or usage, to 
 be ascertained generally from former decisions of the Court ; ^ the 
 decisions of the Court are also important in determining the con- 
 struction to be put upon the Acts of Parliament, General Orders, 
 and Regidations. 
 
 It will be the object of this Treatise to explain the practice of Object of the 
 the Court, in reference to its equitable jurisdiction. 
 
 work. 
 
 1 " Ancient and uniform practice con- 
 stitutes the law of the Court, as much 
 as a positive order," per Lord Eldon, 
 2 Mer. 2. 
 
 The practice of the English Conrt of 
 Chancery forms the basis of the l'>iuity 
 practice of the Courts of the riiite<l States. 
 rer Story J., in Smith v. Burnham, 2 
 Sumner. <il2, 025. 
 
 }iv the Kules of Practice for the Courts 
 of Ivjuity of the United States it is pro- 
 vided that in all ca^es whore the rules 
 prescribed by the Supreme Court, or by 
 the Circuit Court, do not apply, the prac- 
 tice of the Circuit Court sluill be retfubited 
 by the present praciicc of tUt- Hinh Court 
 on hancery in ICnuland, so far as the same 
 may reas'inably lie ajiplied consistently 
 with the local circumstances and locid con- 
 venience of the I)istri<t wliere the Court 
 is held, not as positive rules, but as fur- 
 nishiti^r just analogies to regulate the 
 practi('e. Rule 90, see Clark v. Hevburn, 
 8 Wallace U. S. 318, 323. In Saunders v. 
 
 VOL. I. 
 
 Frost, 5 Pick. 272, Wilde J. said : " We do 
 not adopt the English rules of practice in- 
 discriminately, but only as they apjicar 
 reasonable and conformable to the spirit 
 of our sj-stem of jurisprudence and general 
 rules of ))ractice." 
 
 Under the " Hules for the Regulation of 
 Practice in Chancery in Massachusetts," 
 promulgated in 180(5, the Court adopted, 
 as the outlines of their iiractice, the prac- 
 tice ol the lliizli Courts of Chancery in 
 iMigland, so far as ttie same was not re]iug- 
 inint to the Constitution and laws of the 
 Commonwealth, nnr to such rules of prac- 
 tice as the Courts had made, or from time 
 to time might make. Pule 38. In other 
 States the same has been adopted as the 
 basis of their Chancery practice. See Pur- 
 rall V. I'.nmes, 5 ^\'is."2(i0: West r. Paige, 
 I Stockt. (N. .1.) 203. lint the revised 
 " llnlcs for the Pegulation of Practice in 
 Chancery " for Mass. of 1870, are silent 
 upon this subject.
 
 THE COMMENCEMENT OF A SUIT. 
 
 Cn. I. 
 
 ' — Y — - 
 
 Eiifflish bill. 
 
 Information. 
 
 A suit on thr I^ipiity siilo ol'tlu' Court of C^iancory, on l)ch:ilt'of 
 a subject, is onlinarily connucnced by preferring a petition, con- 
 taining a statement of the plaintilf's case, and praying the relief 
 whieh he considers himself entitled to receive.^ This petition is 
 called in the old books an EikjUhJi. Bill by way of -distinction 
 from the proceedings in suits within the ordinary or common-law 
 jurisdiction of the Court,^ which, till the statute of 4 Geo. II. c. 
 l2t), were entered and enrolled, more anciently in the French or 
 Korman tongue, and afterwards in Latin ; whereas bills in Chan- 
 cery Avere, from very early times, preferred in the English lan- 
 guage.^ The bill is addressed to the Lord Chancelloi-, Lord 
 Keeper, or Lords Commissioners for the custody of the Gi-eat 
 Seal:* unless the seals are in the Queen's hands, or the holder 
 thereof is himself a party ,^ in which case the bill is addressed to 
 the Queen herself, in her Court of Chancery.'^ 
 
 If the suit is instituted on behalf of the Crown, or of those who 
 partake of its prerogative, or whose rights are under its particular 
 protection, such as the objects of a public charity, the matter of 
 complaint is offered to the Court, not by way of petition, but of 
 information,'^ by the proper officer, of the rights which the Crown 
 claims on behalf of itself or others, and of the invasion or deten- 
 tion of those rights for which the suit is instituted.^ This pro- 
 
 1 As to the value of the subject-matter, 
 see Ord. IX. 1. 
 
 2 As to the procedure on the common- 
 law side of the Court, see 12 & 13 Vic. c. 
 109; and Orders of 29 Dec, 1848, and 
 3 Auf;., 1849, Chitty's Arch., 1741: and 
 post, Chap. XXXIX. § 7, Receivers. 
 
 3 See Ld. Red. 8. 1 Spence Eq. Jur. 
 368; Story Eq. Pi. § 7. There are some 
 bills in earl}' times in the French lan- 
 guage: See Cal. Proc. Chan., printed by 
 Public Rec. Com., 1827, Cited Ld. Red. 
 8. n. (o). 
 
 * Ld. Red. 7, 8; As to Lords Commis- 
 sioners, see Hardy's Life of Ld. Langdale, 
 vol. 2. p 258, et seq. 
 
 5 See Lord Keeper v. Wyld, 1 Vern. J39; 
 Coop. Eq. PI. 23. 
 
 6 Ld. Red. 7. In Massachusetts, cases 
 in Equit}' may be commenced by bill or 
 petition, with a writ of subpoena, accord- 
 ing to the usual course of proceedings in 
 Equity, or inserted in an original writ of 
 sumnions, or of summons and attachment, 
 or 1)y a declaration in an action of con- 
 tract or tort, as the case may be, with or 
 without an order for the attachment of the 
 preperty or arrest of the defendant. If a 
 discover}' is sought, it may be by such 
 bill or petition, or by being made part of 
 such declaration, or bv interrogatories. 
 Genl. Sts. c. 113, §§ 3, 4. "Had tiie 
 statute omitted to prescribe any form of 
 process, or to give any autluirity to the 
 Court to make one, the bill as used in 
 England in Chancery proceedings, and 
 
 the proceedings under it as there practised, 
 would necessarily have been adopted liere; 
 for it would be presumed tliat the Legisla- 
 ture, having given jurisdictiiin, intended 
 it should be exercised ;iccording to tlie 
 most approved forms in tliat country 
 which had been the source from which 
 this and other States in the Union had 
 derived tlieir principles and practice in 
 the administration of justice; and it was 
 without doubt expected tliat the (Jourt 
 here, on prescribing writs and processes 
 to carry into execution this new jurisdic- 
 tion, would conform to those winch had 
 been established in England, as near as 
 would be consistent with tliat prompt ad- 
 ministration of justice which it was desir- 
 able to attain." Per Parker (,'. J. in 
 Commonwealth v. Sumner, 5 Pick. 365, 
 366. An action of contract, praying for 
 relief in Jujuity is to be treated as a suit 
 in Equity. ToplilT v. Jackson, 12 Gray, 
 565; Irvin v. Gregorv, 13 Gray, 215. 
 
 By a recent Act in Massaciuisetts, the 
 Superior Court and the Supreme Judicial 
 Court may, in their discretion, and upon 
 such terms as they may deem just, allow 
 amendments changing a suit at Law into a 
 proceeding in Efjuity, or a proceeding in 
 i'-quity into a suit at Law, if the same be 
 necessary to enable the plaintiif to sustain 
 the action for the cau?e for which it was 
 intended to be brought. St. 1865, c. 179, 
 
 §1- 
 
 7 Ld. Red. 7. 
 
 8 Ld. Red. 22; Story Eq. PI. § 8.
 
 THE COMMENCEMENT OF A SUIT. 
 
 Administra- 
 tion sum- 
 mons. 
 
 ceediiii? is then styled an Information. The rules of practice Cn. i. 
 ii)ci<lental to these two methods of instituting a suit in Equity 
 differ so little from each other that, in the ensuing Treatise, what 
 is said with respect to the one may be considered as applicable to 
 both, unless where a distinction is specifically pointed out. 
 
 Where, however, the reUef sought to be obtained is the adminis- 
 tration of the estate of a deceased person, a summary and inexpen- 
 sive practice has been established by the Act to Amend the Practice 
 of the Court of Chancery,^ which provides that, in cases of this 
 description, without either formal pleading, or any direct applica- 
 tion to the Court itself, a summons may at once be ol>tained at the 
 chambers of the Master of the Rolls, or of a Vice-Chancellor, and 
 an order be made on the hearing thereof to administer the estate. 
 Where, also, it is sought to obtain the appointment of a guardian 
 for an infant, or an allowance out of his property for his mainten- 
 ance, the ai)j)lication may be made by summons.- 
 
 Ao-ain, under an Act of Parliament,'^ for which the public are Special case. 
 indebted to the Lord Justice Turner, a very convenient form of 
 api^lication to the Court has been provided for cases where the 
 parties, agreeing upon the facts that form the foundation of their 
 claims, are desirous of obtaining a judicial decision ui)on the con- 
 struction of an instrument, or upon almost any point of law result- 
 ing from the admitted facts. In cases of this description, the 
 parties are enabled, without going through any forms of pleadings, 
 at once to submit the case that they have agreed upon for the 
 decision of the Court. 
 
 The several forms of proceeding enumerated above relate to the Applications 
 original jurisdiction of the Court, and are different means by which ['"^i'-ainent.'^'^ 
 the suitor may call into exercise some portion of that original 
 jurisdiction in his behalf There are a great number of Acts of 
 Parliament — many of them of recent enactment — under which 
 statutory power.s are conferred upon the Court. Many of these 
 Acts point out the particular mode by which relief thereunder is 
 to be sought from tlie Court ; and it may be stated, as a general 
 rule, that a ])erson seeking the aid of the statutory jurisdiction 
 must commence by presenting a petition, whi(;h differs in some 
 important particulars from tlie bill above mentioned, and is not 
 regarded as the commencement of a formal suit.'* 
 
 1 16 & 16 Vic. c. 80. §^ 4.0, 47. 
 
 2 See posH, Cli. XX I X. § a, Proceed- 
 ings in llif Ju'li/es' Chnmbers ( hifmUii). 
 
 a 1.3 & 14 Vic c. 3."., §§ 1-18. 
 
 * The {general Kijuity jurisdictioii in 
 MasHiichu-elt.H JH coiilVrnid ii()(in tlic Sii- 
 preriie .ludiciul Court, wliicli li:is ori^^iiial 
 and exelusiv jurisdiction «f ever}- orit,'i- 
 nal proccii«,wliellier liy hill, writ, pi'titioii, 
 or otherwise, in which relief in Ivjuity is 
 
 prayed for, except where some different 
 provision is made by law, nnd may issue 
 all ffcneral and speciMl writs and processes 
 r('(|iiir('d in procccdinj^s in Ivpiitv to Courts 
 of inferior jurisdiction, cor|ioralions, and 
 iniliviiluals, when necessary to secure ju.s- 
 lici' and equity, (ieni Sts. c. lUi, § 1. 
 (/'ases in liipnty, and nmtions and other 
 niiplu-atioiis therein, v. iieiher inlerloeuidrv 
 or linaljSliall iu the lii^i iiistiinee he hearU
 
 THE COMMENCEMENT OF A SUIT. 
 
 Cw. I. 
 
 Course 
 proposed. 
 
 All thi'so (lilU'ivnt luotluxls of origiiialiiiy :n)]irK';i(i(His to the 
 .Court of Chancery lend to soinewhiit ditferent proceedings in the 
 subsequent stiiges of the case, and Avliich it Avill be the object of 
 this Treatise to explain. As a j)reliniinary step, however, it will 
 be convenient to ])oint out the peculiarities of practice inci<lent to 
 different ilescriptions of persons ai)pearin<i;, either as ])laiiitills 
 themselves to obtain relief from the Court, or as defendants to 
 resist the applications of others. 
 
 and determined by one justice of the Su- 
 preme .hulieial Court. §6. For lieiirings, 
 and niakiiii^, enteriiijj, and modit'yinfj or- 
 ders and decrees in Kquity causes, by a 
 single justice, and issuing writs in sucli 
 causes, tlie Court shall be always open in 
 each county, except on holidays cstab- 
 lislied by law. And the Court shall es- 
 tablish rule-days for the transaction of the 
 business pertaining; to the jurisdiction in 
 Equity. § 7. A single justice, or the full 
 Court, sitting in one county, maj', when 
 needful, hear and determine cases pend- 
 ing in another county, and any motion 
 therein. And all orders and decrees made 
 at such hearings shall be transmitted to 
 the clerk in the proper county, to be by 
 him entered. § 18. The Justices of the 
 Court shall, from time to time, by arrange- 
 ment among themselves, designate some 
 one of their number to attend at some 
 convenient place in Boston, at all cmven- 
 ient times, for the purpose of hearing 
 matters m Ecjuity, who, bv his rescript, 
 may make decrees and orders in Equity 
 suits in an}' county. § 24. The Court 
 may make rules regulating the practice, 
 and conducting the business of the Court 
 
 in matters of Eiiuity, so as to simplify tho 
 proceniiings, discourage delays, lessen the 
 expenses and burdens of litigation, and 
 expedite the decision of causes. § 26. 
 
 tJuder the above authoritj' for estab- 
 lishing rule-days, it is provided by Rule 3 
 of the Massachusetts " Kules for tlie Regu- 
 lation of Practice in Chancery " (1870) that 
 "there shall be ride days on the (irst Mon- 
 day of each month, in all the counties ex- 
 cept Duke's County, for the return of 
 process and the entry of all proceedings and 
 orders which may lie taken at the rules." 
 
 In New York, the jurisdiction of Equitj', 
 part of which was to exercise its powers 
 at all times, has devolved upon the Su- 
 preme Court. A justice of that Court, 
 then, may hear a petition in Chambers in 
 those matters where the usage of the 
 Chancellor was so to do. Wilcox v. Wil- 
 cox, 14 N. Y. 575. 
 
 In regard to the jurisdiction of the 
 Court of Chancery, in Verinont, see 
 Cheever v. R. & B.' R.R. Co., 30 Vt. 654. 
 In Maine, see Androscoggin & Kennebec 
 R.K. Co. V. Androscoggin R.R. Co., 49 
 Maine, 392.
 
 CHAPTER II. 
 
 PERSONS BY \\TIOM A SUIT MAT BE INSTITUTED. 
 
 Section I. — The Queeti^s Attorney- General. 
 
 It is a geueral rule, subject to veiy few exceptions, that there is 
 no sort or condition of persons who may not sue in the Court of 
 Chancery, and this rule extends fi'om the highest person in the 
 State to the most distressed pauper. 
 
 The Queen herself has the same right which a subject has to 
 institute proceedings in her own Courts for the assertion of any 
 right which she claims, either on behalf of herself or others ; and 
 the same principles which entitle a subject to the assistance of a 
 Court of Equity to enable him to assert his legal rights, are 
 equally applicable to the Sovereign. Thus a suit has been insti- 
 tuted on behalf of the Queen to have the benefit of a discovery, 
 from persons charged to be aliens, of the place of their birth, in 
 order to assist her in a commission to inquire into their lands, 
 with the view of seizing them into her hands by inquisition.^ 
 For the same reason, where an office cannot be found ibr the 
 Crown without the aid of a Court of Equity, the Court will, at 
 the suit of the Crown, interfere to restrain the commission of 
 waste in the mean time.- 
 
 It has been said, that the Queen is not bound to assert her 
 rights in any particular Court, but that she may sue in any of her 
 Courts which she pleases, without reference to the qiiestion 
 whether the subject-matter of her suit is such as comes within 
 the peculiar jurisdiction of such Court.^ Thus she may have a 
 quare impedit in the Queen's Bench,* or she may elect to sue 
 either in a Court of Common LaAV, or in a Court of Equity.® 
 Upon an accurate examination, however, of the cases that have 
 given rise to these general assertions of the rights of the Crown, 
 it appears that equitable grounds were alleged in each case for 
 instituting the proceedings in Chancery. It seems, nevertheless, 
 to be true, that the Queen may })roceed, in questions relating to 
 
 1 Du I'lcHsis V. Attorney-General, 1 JJro. 
 P. C. eil. Toinl. 415, 419. 
 
 2 Attoniey-Oneral v. Du Plessis, 2 Ves. 
 § 280. As t(» ollicc fouiitl, see now 22 & 
 23 Vic. c. 21,§ 25. 
 
 8 11 Kep. G8 15; ib. 76 A; Plowden, 
 236, 240, 244. 
 
 •1 11 Ui!p. ON \\. 
 
 5 The Kiiijj v. Countess Dowager of 
 Arundel, Hob. 109; Atforncy-Ciencral xi. 
 Vornon, 1 Veni. 277,370; 2 Cli. I{. :)5.'i; 
 1 I':(i. (;a. Ab. 75,1)1. 1; l.'iU, |.l. 10; and 
 see the cases cited « lleav. 2t?3, and the 
 Judgment, p. 287. 
 
 All persons 
 may sue in 
 Equity. 
 
 The Queen 
 entitled to the 
 assistance of 
 a Court of 
 Equity : 
 
 may sue m 
 any Court.
 
 PERSONS BY WHOM A SUIT IMAY BE INSTITUTED. 
 
 Cii. II. ^ 1. 
 
 Informations 
 rclatins: to 
 the lands and 
 revenues of 
 the Crown 
 were usually 
 tiled in the 
 Court of Ex- 
 chequer till 
 5 Vic. c. 5 ; 
 
 Attorney- 
 General r. 
 Corporation 
 of London, as 
 tojurisdiction 
 of Court of 
 Chancery in 
 revenue ' 
 matters. 
 
 tlu' ]iro|H'rty to wliirli slio is iMititlcd in rio-ht of her Ci'own, either 
 in a Court of J.aw or in a Court of K(]uity ; and tliat whore she 
 has caused a Court of Eqtiity to be informed that an intrusion has 
 hi'en oonmiitted on her hmd, altlioutjli no matter of equitable 
 jurisdiction has been stated, yet the information has been enter- 
 tained : but in such cases, if any question of law arises, the Court 
 will put it in the course of trial by a Court of Law, and retain the 
 information till the result of such trial is known.^ 
 
 As a general rule, suits on behalf of the Crown are instituted 
 in the Court which, by its constitution, is most properly adapted 
 to the case,2 and the Court of Exchequer being the general Court 
 for all business relating to the Queen's revenue or pro]ierty, the 
 practice has been to institute there all proceedings relating to the 
 property of the 'Crown. By the 5 Vic. c. 5, § 1, however, it is 
 enacted, "that on the 15th day of October, 1841, all the power, 
 authority, and jurisdiction of her Majesty's Court of Exchequer at 
 Westminster as a Court of Efpiity, and all the poAver, authority, 
 and jurisdiction which shall have been conferred on or committed 
 to the said Court of Exchequer by or under the special authority 
 of any Act or Acts of Parliament (other than such power, au- 
 thority, and jurisdiction as shall then be possessed by, or be inci- 
 dent to, the said Court of Exchequer as a Court of Law, or as 
 shall then be possessed by the said Court of Exchequer as a Court 
 of Revenue, and not heretofore exercised or exercisible by the 
 same Court, sitting as a Court of Equity), shall be, by force of 
 this Act, transferred and given to her Majesty's High Court of 
 Chancery, to all intents and purposes, in as full and ample a man- 
 ner as the same might have been exercised by the said Court 
 of Exchequer, if this Act had not passed." 
 
 The construction of the Act afterwards came before Lord Lang- 
 dale M. R. in the case of The Attorney- General v. The Corpora- 
 tion of London^ when his Lordship said he thought " the almost 
 unavoidable construction of the Act made it so operate, as to leave 
 to the Court of Exchequer every thing that was not exercised or 
 exercisible by that Court as a Court of Equity, and to transfer to 
 the Court of Chancery all that Avas exercised or exercisible by the 
 Court of Exchequer as a Court of Equity." It appears, as the result 
 of that case, that, in the opinion of Lord Langdale, in all matters 
 affecting the rights, property, and revenue of the Crown, the Court 
 of Exchequer, sitting on the Equity side, had, before the Act, a 
 jurisdiction, notwithstanding the Crown might, in the particular 
 
 1 Attorney-General to the Prince of tion; but in certain specified cases Equity 
 Wales f. Sir J. St. Aubyn, Wiglitw. 107, powers are conferred upon tlie Superior 
 and the cases there cited; see also Attor- Court; and, to a limited extent, Probate 
 ney-General v. The Mayor of Plymouth, Courts niiiy bear and determine matters 
 id. 1.34. in relation to trusts created by will. 
 
 2 In Massachusetts, the Supreme Judi- 3 g Beav. 270, 285. 
 cial Court has the general Equity jurisdic-
 
 THE QUEEN S ATTORNEY-GENERAL. 
 
 cases, have had a legal reiuedy, and that this jurisdiction has by 
 the Act been transferred to the Court of Chancery ; and that, by 
 virtue of that transfer, the Crown is now enabled, in matters of 
 revenue dependent upon legal rights, to sue in the Court of Chan- 
 cery, even though there would be no jurisdiction in similar cases 
 between subject and subject. The decision in this case was 
 affirmed by the House of Lords; but their lordships carefully 
 avoided detenmining this question, as to which they expressed 
 great doubt.^ In whatever way this question may be ultimately 
 decided, it has been held by the Court of Exchequer that it still 
 retains an equitable jurisdiction in matters of revenue.- Where 
 the Court of Chancery would have jurisdiction, as between sub- 
 ject and subject, it seems clear that the Crown may file an informa- 
 tion in that Court for an account.^ 
 
 In all cases where the rights of the Queen, or of those who 
 partake of her prerogative, are the subject of the suit, the name 
 of the Queen is not made use of as the party complaining, but the 
 matter of complaint is offered to the Court by way of information 
 giveu by the proper officer. That officer, if the information is 
 exhibited in any of the Superior Courts at Westminster, is the 
 Attorney-General, or if the office of Attorney-General should 
 •happen to be vacant, the Solicitor-General.* 
 
 Besides the cases in Avhich the immediate rights of the Crown 
 are concerned, the Queen's officers may, in some cases, institute 
 proceedings on behalf of those who claim undei- the Crown, by 
 grant or otherwise ; or, more correctly speaking those who claim 
 under the Crown may make use of the Queen's name, or of that of 
 her proper officer, for tlie jjurpose of asserting their right against 
 a third party. Thus a diose in action may be assigned to the 
 Queen, and may also be gi-anted or assigned by her to another 
 person ; and, in the latter case, the grantee may either sue for it 
 
 Ch. II. § 1. 
 
 The Attor- 
 nej'-General, 
 or if no Attor- 
 ney-General, 
 the Solicitor- 
 General sues 
 on behalf of 
 the Crown in 
 the Superior 
 Courts. 
 
 Of informa- 
 tions where 
 the Cro-vvn is 
 not immedi- 
 ately con- 
 cerned : 
 
 on behalf 
 of Cro-mi's 
 grantee of 
 a c/((As-e in 
 action ; 
 
 1 1 n. L. Ca. 410. 
 
 2 Attornev-fJeneral v. llallinp, 15 M. 
 & W. Gb7, 700; Attorney-General v. Hal- 
 lett, id. 97; « Bchv. 288," n. but see Attor- 
 ney-General V. Kingston, 6 Jur. 1.0.^, Kq. 
 The procedure in suits by information in 
 the Court of K.xchequer relating to the 
 revenues of the Crown is now reguhited 
 bv " The Crown Suits Act, 186.'> " ('28 & 29 
 Vic. c. 104), iind lie);. Gen. Kxch. 14lli 
 March, 18G6; L. K. 1 Ex. 3S'J; 12 Jur. N. 
 S. F. II. 182. 
 
 8 Attorney-General v. Edmunds, L. 
 R. 6 Kq. 381^ 3!t2, V.C G. ; and see Attor- 
 ney-General V. Corporation of Lon<lon, 1 
 H. L. ("as. 440; see al^o the case of York 
 Building (.'nmpimy. 
 
 '♦ Ld. Hid. 7,21,22; Wilkes's cnse, 4 
 Burr. 2.027; Story Kq. I'l. § 49; 1 Smith 
 Ch. I'r. 99, ino. 
 
 Kiglits purely public arc to be enforced 
 
 in the name of the State, or the officer in- 
 trusted with the conduct of ])ul>lic suits. 
 Smith I'. Comm. of IJuller County, G Oiiio, 
 101. 
 
 Wiiile the office of Attorney-General was 
 abolished in Slassachusetts, most of the 
 duties of that otlicer, which were not re- 
 quired to be performed l)y iiim pcrsoniiUy, 
 hiiving been distributed among and vested 
 in the l)istrict Attorneys, ms tin- local prose- 
 cuting ollicers, Mr. ( 'hiet-.Iustice Shaw said 
 he was " strongly incline(l to the opinion 
 tiiat the tiling ol an information in Equity 
 was not a duty which the Attornev-( len- 
 eral wms nijoiri'd to do personally; that 
 duty would have vested in a Solicitor- 
 General, if there had been one; it was 
 necessarily incidcMit to the office of At- 
 tornev-ticneral, and was vested in the 
 l)istrict-.\ttorneys in their respective dis- 
 tricts." Parker I'. May, 6 Cash. 340.
 
 PERSONS BY WIIOIM A SUIT JIAY BE INSTITUTED. 
 
 Cii. II. § 1. 
 
 on behalf of 
 the Cjueen, 
 as supreme 
 head of the 
 Church; 
 
 asparevs 
 pntri(f, for 
 charities. &c. 
 
 in l\is own n;inu\ or in that of tlie Queen ; ^ btit if he sues in his 
 own n:inu', he must iniike the Attorney-General a i)arty to his suit. 
 Thus, wliere A., having outhiwed B., hrougl\t a hill against C, a 
 trustee for J>., Avitli n^speet to an annuity, to suhject this annuity 
 to the i)laintirt"'s debt; and the Court held, that forasniueh as by 
 the outlawry all the defendant's interest, as well equitable as legal, 
 was vested "in the Crown, the plaintiff must not only get a grant 
 thereof from the Crown, hut nuist make the Attorney-General a 
 party to the suit.- 
 
 Iiiformations may also be exhibited by the Attorney-General, or 
 other proper officer, in support of the rights of those whose pro- 
 tection devolves upon the Crown as su})reme head of the Church. 
 Thus, the Queen, as supreme head of the Church, is the i)roper guar- 
 dian of the temi)oralities of the bishoprics ; and an information may, 
 therefore, be brought by the Attorney-General to stay waste com- 
 mitted by a bishop.^ 
 
 In like manner, the Attorney-General may exhibit informations 
 on behalf of individuals who are considered to be under the pro- 
 tection of the Crown as ^:>are«s joa^Woe : such as the objects of 
 general charities,* idiots, and lunatics.'^ Moreover, this privilege of 
 the Attorney-General is not confined to suits on behalf of charities 
 strictly so called, but has been held, in many instances, to extend- 
 to cases where funds have been made applicable to legal and 
 general purposes.^ The rule in such cases appears to be, "tliat 
 where property affected by a trust for public purposes, is in the 
 hands of those who hold it devoted to that trust, it is the privilege 
 of the public that the Crown should be entitled to intervene by 
 its officer, for the purpose of asserting, on behalf of the public 
 generally, that public interest and that public right which pro- 
 bably no individual could be found Avilling effectually to assert, 
 even if the interest were such as to allow it." ■ 
 
 1 Dyer, 1 PI. 7, 8 ; Keilw. 109 ; 5 Bac. Ab. 
 tit. Trerog. F. 3; Miles v. Williams, 1 P. 
 Wms. 249, 252 ; Earl of Stafford v. Buck- 
 ley, 2 Ves. S. 170, 181. 
 
 2 Batch V. AVastall, 1 P. Wms. 445; 
 HavwaiJ v. Frv, id. 446 ; see also Rex v. 
 Fowler, Bunb. 38. 
 
 3 Knight?;. Mosely, Amb. 176; Wither 
 V. D. & C. of Winchester, 3 Mer. 421, 427; 
 Jefferson v. Bishop of Durliam, 1 Bos. & 
 Pull. 129, 131. 
 
 4 See Attorney-General v. Clergy So- 
 ciety, 8 Rich. Fq. (S. C.) 190; Wright v. 
 Trustees of Jletli. Epis. Cliurcli, 1 Hoff. 
 Ch. R. 202; 2 Kent (11th ed.)-285-288, 4 
 id. 507. 
 
 5 See Norcom v. Rogers, 1 C E. Green 
 (N. J.), 484. 
 
 6 Attorney-General v. Brown, 1 Swanst. 
 265; Attorney-General v. Corporation of 
 Shrewsbury, I'.eav. 220, 227; Evan f. 
 Corporation of Avon, 29 Beav. 144; G Jur. 
 N. S. 1361 ; Attorney-General v. Corpora- 
 
 tion of Lichfield, 11 Beav. 120; Attorney- 
 General V. Corporation of Norwich, 16 
 Sim. 225,229; Attorney-Gencr.il i'. Guar- 
 dians of Southampton, 17 Sim. 7, 13; At- 
 torney-General V. Eastliike, 11 Ilare, 205; 
 
 17 .Jur. 801; Attorney-General v. Mayor 
 of Wigan, Kay, 268; 5 De G. M. & G. 52; 
 
 18 Jur. 299: Attorney-General v. West 
 llartlpool Improvement Commissioners, 
 W.N. (1870) 107; 18 W. R. 685, V. C. G.; 
 L. R. 10 Eq. 152. 
 
 7 Per Sir J. L. Knight Bruce, V. C. in 
 Attorney-General v. Compton, 1 Y. & C. C. 
 417, 427. In Massachusetts under Genl. 
 Sts. c. 14, § 20, the -Attorney-General is 
 required to enforce the due application 
 of funds given or, appropriated to pulilic 
 charities within the State, and prevent 
 breaches of trust in tlie administration 
 tliereof. The power of the Attorney- 
 General or public prosecutor to institute 
 a proceeding for tiiu enforcement of a 
 public cliarity, is a comniou-law power,
 
 THE queen's attorney-general. 9 
 
 Suits on behalf of idiots and lunatics are usually instituted by Ch. ii. § i. 
 the committees of their estates ; but sometimes, where there has t — 
 
 been no committee, or where the interest of the committee was on behalf of 
 likely to clash with that of the persons whose estates were under lunaties; 
 his care, informations have been exhibited on their behalf by the 
 Attorney-General, as the officer of tlie Crown. ^ Where informa- 
 tions have been filed on behalf of persons foixnd lunatic, but who 
 have had no committee appointed, the Court will proceed to give 
 directions for the care of the proj^erty of the lunatic, and for 
 proper proceedings to obtain the appointment of a committee.- 
 Persons incapable of acting for themselves, though not coming 
 under the description of idiots or lunatics, have been permitted to 
 sue by their next friend, without the intervention of the Attorney- 
 Genei-al.^ 
 
 It seems that when an information is filed on behalf of a lunatic, umatic must 
 he must be named as a party to the suit, and that merely naming ^"^ ^ party. . 
 him as a relator will not be sufficient ; * a distinction, however, 
 appears to be taken between cases where the object of the suit 
 is to avoid some transaction of the lunatic, on the ground of his 
 incapacity, and those in which it is merely to affirm a contract 
 entered into by him for his benefit, or to assert some claim on his unless to 
 behalf.^ In the former case it was held, that the lunatic ought ^^'"'^^ '^'^ °^^" 
 
 ' » acts; 
 
 not to be named as plaintiff, because no man can be heard to 
 stultify himself; if he is named, however, it will be no ground 
 for demurrer.® The reason for making a lunatic a party in pi'O- 
 ceedings of this nature appears to be, that as no person can be 
 bound by a decree in a suit to wliich he, or those under whom he 
 derives title, are not parties, and as a lunatic may recover his 
 understanding, the decree will not have the effect of binding liim 
 unless he is a pai-ty to the suit; and upon the same principle it is 
 held, that Avhere a suit is instituted on behalf of the lunatic by his 
 committee, the committee must be named as a co-])luintiff, in order 
 that the right which the committee acquires in the lunatic's estate, 
 by' virtue of the grant from the Crown, may be barred.'' The 
 
 incident to the office. Parker v. IMay, 5 2 Attorney-General v. Howe, Ld. Red. 
 
 Gush. 330, 338, per Shaw C. .J. See Writ,'ht 30. n. (m). 
 
 V. Tlie Trustees of tlio iMeth. Epis. (;iiiirch, '•> Liiiev r. Wctlicrlev, Ld. Red. 30. n. 
 
 1 Hoff. Ch. 1'.. 202; 2 Kent (lltli ed.),28.0- (n); Ligiit v. Lipht, 25 Bcav. 248; West 
 
 288 notes. v. Uavis, Rolls, 1803, W. No. 83, and see 
 
 1 Attorney-General v. Parkhurst, 1 Glia. post, Ciiap. III. § 7, Idiula and Lunatics 
 
 Ca. 112; Attorney-General v. Woolrich, id. ( Plain! ijl's). 
 
 153; .Vtlornev-Gen'-riil v. Tyler, 1 Dick. * Attorney-General v. Tyler, 1 Dick. 
 
 878:2 ICd'-tii 2:i0; Norcoin v. KoKors, 1 378; Ridler «. Ritller, Kq. Ca. Ab. 27!). See 
 
 C. E. Green (N. .1.), 484. If tiic phiiiitilT Story Kci.'I'i. § 04; G.jrliam v. Gurliam, 3 
 
 appear upon the face of the 1)111 to he a ]5:irh. Ch. R. 24. 
 
 lunatic, ami no next friend or coinniittee is '' Attorney-fJeneral i'. Parkhurst, 1 Cha. 
 
 named in tiie bill, the objection nia}' be Ca. 112; Attorne^'-Gcneral v. Woodricli, 
 
 raided Ijy demurrer or by motion to take 1 Cha. Ca. 153. 
 
 the bill from the files. >rorcom v. Rogers, '' Ridlcr v. Ridler, 1 Kq. Ca. Ab. 279 
 
 1 C. E. Green (N. J.), 484. pi. 5; and sec Totliill, 130. 
 
 7 Norcora v. Rogers, 1 C E. Green (N.
 
 10 
 
 PERSONS BY WHOM A SUIT MAY BE INSTITUTED. 
 
 In what cases 
 they ought to 
 be plaiutitls. 
 
 s:une reason does not :ii»i>ly to cases of idiots, because in con- 
 tenii>lation of law they never can acquire tlieir senses; they are, 
 therefore, not considered necessary parties to proceedings on their 
 behalf.i 
 
 In all cases of informations which iinniediately concern the 
 rio-hts of the Crown, its officers proceed upon tlieir own authority, 
 without the intervention of any other person;- hut where the 
 informations do not immediately concern the rights of the Crown, 
 they generally depend upon the relation of some person whose 
 name is uiscrted in the information, and who is termed the Be- 
 latorP This person in reality sustains and directs the suit, and 
 he is considered as answerable to the Court and the parti(?s for the 
 propriety of the proceedings, and the conduct of them ; * but he 
 cannot take any step in the cause in his own name, and inde- 
 pendent of the Attorney-General.^ Where, therefore, in the case 
 of the Attorney- General v. Wrif/M,^ notice of motion was given 
 on behalf of a relator, and an objection was made that it ought to 
 haA^e been on behalf of the Attorney-General, Lord Langdale 
 M. R. decided that the notice was irregular, and said that " re- 
 lators should know that they are not parties to informations, and 
 have no right, of their own authority, to make any application to 
 the Court. The Attorney-General is the only person whom the 
 Court recognizes in suoh cases." And in the Attorney- General v. 
 Barker^ Avhich was an information and bill. Lord Cottenham 
 refused to hear the relator and plaintiff in person on behalf of the 
 Attorney-General, and said he could not separate the information 
 from the bill, so as to hear him as the plaintiff in the bill. It 
 sometimes happens that the relator has an interest in the matter 
 in dispute, of the injury to which interest he is entitled to com- 
 plain. In this case, his personal complaint being joined to, and 
 incorporated Avith, the information given to the Court by the 
 
 J.). 484. Under the 16 & 17 Vic. c. 70, 
 the custody of the estate is usually com- 
 mitted to 'the committee by an Order of 
 the Lord Chancellor or Lords Justices, 
 wliich, however, by § 63, has the same 
 force and validity as a grant under the 
 great seal. For form of Ordtr, see Elmer's 
 Frac. 126. 
 
 1 Attorney-General v. Wpolrich, 1 Cha. 
 Ca. 153; and see poii. Chap. III. § 7, 
 Id'wts fin/J Lunatics (Plaintiff's). 
 
 2 Ld. Ked. 22; Attorney-General v. 
 Vernon, 1 Vcrn. 277, 370; Attorney-Gen- 
 eral V. Crotts, 1 I'.ro. 1'. C. ed. Toml. 136. 
 
 In .Massachusetts the Attorney-Cieneral 
 mav, under Genl. Sts. c. 14, § 18. when in 
 his judgment the interest of the St-.ite re- 
 quires It, file and i)rosecute informations, 
 or other processes, against persons who in- 
 trude on the lands, rights, or property of 
 the Commonwealth, or commit or erect 
 any nuisance thereon. 
 
 3 Ld. Red. 22; 1 Ves. J. 247, n. See 
 The Attorney-General v. The Proprietors of 
 the Meeting-house in Federal Street, in ,the 
 Town of Boston, 3 Gray, 1; Attorney-Gen- 
 eral V. iNIerrimack Manufacturing Co., 14 
 Gray, 586; 1 Smith Ch. Pr. (2(1 Am. ed.) 
 99; Storv Eq. PI. § 8; 2 Mad. Prin. & Pr. 
 Ch. (3d i.ond. ed ) 203. 
 
 4 Ld. Red. 22 ; Attorney-CJeneral v. Viv- 
 ian, 1 Rus.s. 226, 236. 
 
 5 I'arker i'. May, 5 Gush. 337, per Shaw 
 C. J.; see Commissioners v. Andrews, 10 
 Rich. Eq. (S. C.)4. 
 
 c 3 Ik-av. 447; and .see Attorney-Gen- 
 eral V. The Haberdasliers' Company, 15 
 Beav. 397; Attoriiev-Genernl v. VVygges- 
 ton's Hospital, 16 Beav. 313; Attorney- 
 General t). Slierbourne Grammar School, 18 
 Beav. 256; 18 Jur. 636; Parker v. May, 5 
 Cush. 336, 337. 
 
 V 4 M. & C. 262.
 
 THE queen's attorney-general. 
 
 11 
 
 officer of the Crown, tliey form together an information and bill, 
 and are so termed. In some respects, however, they are consid- 
 ered as distinct proceedings ; and the Court will treat them as 
 such, by dismissing the bill and retaining the information, even 
 though the relief to be granted is different from that prayed. 
 Thus, where the record was both an information for a charity and 
 a bill, and the whole of the relief specifically prayed was in respect 
 of an alleged interest of the relator in the trust property, which 
 he did not succeed in establishing, although the bill was dismissed 
 with costs, the information was retained for the purpose of regu- 
 lating the charit.y.^ It is, moreover, necessary that the jjerson 
 joined as plaintiff should have some individual interest in the 
 relief sought to be obtained by the suit ; and where persons were 
 made plaintiffs who asked nothing for themselves, and did not 
 show that they were individually entitled to any thing, a demurrer 
 to the whole record was allowed ; but as there appeared to be a 
 case for relief, leave to amend, for the purpose of converting the 
 record into an information only, was given, and the Court directed 
 that the plaintiffs should remain on the record in the character of 
 relators, in order that they might be answerable for costs.^ 
 
 Although it is the general practice, where the suit immediately 
 concerns the rights of the Crown, to proceed mthout a relator, 
 yet instances have sometimes occurred where relators have been 
 named. In such cases, however, it has been done through the ten- 
 derness of the officers towards the defendant, in order that the 
 Court might award costs against the relator if the suit should 
 appear to have been im])roperly conducted : it being a j^rerogative 
 of the Crown not to pay costs to a subject.^ 
 
 It has been said, that as the Queen, by reason of her preroga- 
 tive, does not pay costs to a subject, so it is beneath her dignity 
 to receive them ; Ijut many instances occur, in the course of ])rac- 
 tice, in which the Attorney-General receives costs. Thus, Avhen 
 collusion is suspected between the defendants and the relators, the 
 Attorney-General attends by a distinct solicitor, and always re- 
 ceives liis costs. In Attorney- Geyieral \. Lord AshhurnJiam'^ i^\Y 
 John Leach V. C. said, in reference to the asserted 2)rinciple that 
 the Crown can neither pay nor receive costs, "I find no such 
 principle in Courts of Equity. The Attorney-General constantly 
 receives costs, where he is made a defendant in resjiect of legacies 
 given to charities,'"' and even where he is made a defendant in re- 
 spect of the immediate rights of the Cruwii in (mhc-s of intestacy; 
 
 Ch. II. § 1. 
 
 Information 
 and bill. 
 
 Bill may be 
 dismissed, 
 and informa- 
 tion retained. 
 
 Plaintiff 
 must have an 
 individual 
 interest in the 
 relief. 
 
 Where the 
 suit relates to 
 rights of the 
 Crown. 
 
 Costs of 
 Attorney- 
 General. 
 
 1 Attorney-General v. Vivian, 1 Hus.'i. 
 22G, 233, 235. 
 
 2 Attorney-General v. 'I'lie East India 
 CompiiDV, 11 .Sim. 3>*0, 3«ii. 
 
 8 Sec 3 151. Com. 400; 2 Mad. I'rin. & 
 Pr. Ch. (3d Lond. ed.) 203 and note; 1 
 
 Smith Ch. I'r. (2d Am. cd.) 99; Storv Kii. 
 I'l. § 8. 
 
 4 1 S. 6c. S. 3!t4, 397. 
 
 '■' MopKrid^f (' 'I'liackwell,? Ve.s. 30,88; 
 Attorney-General v. Lewis, 8 Heav. 179.
 
 12 
 
 TEKSONS BY WHOM A SUIT MAY 15E INSTITUTED. 
 
 Cu. II. ^ 1. 
 
 18 & 19 V,c. 
 c. 90. 
 
 Introduction 
 of a relator, 
 where 
 Crown's 
 rights imme- 
 diately con- 
 cerned, is an 
 indulgence : 
 
 ;iinl w liiTo i-li;iiity iiiroiinatioiis linve bci'ii lili'd by llu' Attorney- 
 (niK'nil, costs have boeii iKHiuently awardeil him in interlocutory 
 matters inilej)entlently of the relator." ^ And in the case of the 
 Attorney- General v. 2' he Corporation of Loncton^^ Lord Cotten- 
 liam said, "the j)rinoi))le that the Attorney-General never receives 
 nor i>ays eosts may be modiiied in tliis way ; namely, that the 
 Attorney-General never receives costs in a contest in which he 
 could have been called upon to pay them, had he been a private 
 individual." By the 18 tfe 19 Vic. c, 90, however, provision is 
 made for the ])ayment of costs by or to the Crown, in proceedings 
 instituted, after the passing of the Act, on its Jjehalf" in matters 
 relating to the revenue.* In an information by the Attorney-Gen- 
 eral without a relator, costs may be ordered to be paid by one 
 defendant to another defendant ^ and where in a charity case 'some 
 of tlie defendants supported the contention of the Attorney-Gen- 
 eral, they Avere allowed costs as between solicitor and client, to be 
 taxed and paid out of the fund. Such costs as between party and 
 party to be repaid by the defendant who opposed the proceedings.* 
 The propriety of naming a relator for the purj)Ose of his being 
 answerable for costs, and the oppression arising from a contrary 
 practice, were particularly noticed by Buron Perrot, in a cause in 
 the Exchequer, Attorney- General v. Fox^ in which case no relator 
 was named ; and though the defendants finally prevailed, they 
 were put to an expense almost equal to the value of the property 
 in dispute. The introduction of a relator, however, in cases in 
 which the information is merely concerning the rights of the 
 Crown, is a mere act of favor on the part of the Crown and its 
 officers ; and it appears to have been the opinion of Lord Eldon 
 that, even in informations concerning charities, the introduction 
 of a relator was an indulgence on the part of the Crown, which, 
 though usual, might be withheld. Thus, in The Matter of the 
 Bedford Cliarity,^ in i-,\iQixkmg of infomiations concerning charities, 
 his Lordship said, "there is no doubt, that thougli a relator is 
 commonly required for the purpose of securing costs, tlu; Attorney- 
 General may, if he ])leases, proceed without a relator," This 
 dictum appears to be at variance with the opinion of Lord Thurlow, 
 
 1 See, however, Burney v. Macdonald, 
 15 Sim. 6, 16. 
 
 2 2 M'X. & G. 247, 209, 271, 273. See 
 also, on this point, S. C. before the M. R. 
 12 Beav. 171, iind on demurrer before 
 House of Lords, 1 II. L. Cas. 471, and Ld. 
 Cottenham's comments on the case 2 M'N. 
 & G. 271 ; Attorney-General v. Drapers' 
 Co., 4 Beav. .30.5; \\ are v. Cumberlege, 20 
 Beav. 510; Kane v. Maule, 2 S. & G. 331; 
 S. C, on appeal, notn. Kane v. Reynolds, 
 4 De G., M. & G. 565, 569; 1 Jur. N. S. 
 14«. 
 
 3 Attorney-General v. Hanmer, 4 De G. 
 
 & J. 205; 5 Jur. N. S. 693; Attorney- 
 General V. Sittingbourne & Shuerness 
 Bailwav Co., 35 Ueav. 268.272; L. 11. 1 
 Eg. 636, 640; and see Bnuer v. Mitford, 9 
 W. K. 135 ; see also 24 & 25 Vic. c. 92, 
 § 1, in cases as to succession duty; and 23 
 & 24 Vic. c. 34, §§ 11, 12, in proceedings 
 by petition of right. 
 
 4 Attorney-General v. Chester, 14 Beav. 
 338; Attorney-dreneral r. Mercers' Co., 18 
 W. K. 448, V. C. J. 
 
 5 Ld. Red. 23, n. (g). 
 
 6 2 Swanst. 520.
 
 THE queen's attorney-general. 
 
 13 
 
 in the Attorney- General v. Oglender^ in which case his Lordship 
 is reported to have expressed his belief that an information with- 
 out a relator would not do ; and the opinion of Lord Thurlow 
 upon this point appeai-s to have been adopted by Lord Redesdale,- 
 Upon the whole, therefore, it seems, that although in cases of 
 informations for charities, the general and almost universal practice 
 is to have a relator for the purpose of answering the costs, yet the 
 rule is not imperative ; and the Attorney-General, as the officer 
 of the Crown, may, in the exercise of his discretion, exhibit such 
 an information without a relator. In confirmation of this it is to 
 be observed, that in informations under the former statutes,'' for 
 giving additional facilities in applications to Courts of Equity 
 regarding the management of estates or funds belonging to chari- 
 ties, 'it was not the practice to have a relator. 
 
 All persons who are not under any of the legal disabilities after 
 mentioned may be relators in informations ; * but a written author- 
 ity, signed by them, permitting their names to be used must be 
 filed with the information.^ A corpoi-ate body may be a relator ^ 
 or a relator and plaintiff." 
 
 It has not been deemed necessary that relators should be inter- 
 ested in the charities conceraing which they institute proceed- 
 ings ; * and the Court was in the habit, in the times when a 
 much stricter system of practice prevailed than at present, of 
 relaxing several of its rules on behalf of charities. Thus, where 
 the relief sought was erroneous and refused, the Court still took 
 care to make such decree as would best answer the purposes of the 
 charities.® 
 
 It appears, on reference to the old cases, that where a relator 
 himself claims an interest in the subject-matter of the suit, and 
 proceeds by bill as well as by information, making himself both 
 
 Cii. II. § 1. 
 
 and so, in 
 cases of char- 
 ities, semble. 
 
 1 1 Ves. J. 246. 
 
 2 Ld. Red. 99 ; and see Attorney-General 
 V. Smart, 1 Ves. S. 72; Attornev-Genural 
 V. Middleton, 2 Ves. S. 327; Attorney- 
 General of the Duchy of Lancaster v. 
 Heath, Prec. in T'h. 13. 
 
 8 .59 (!eo. IFI. c. 91; continued and 
 extended by 2 & 3 Will. IV. c 57. See, 
 however, ,\ttornc;y-General v. IJoucherett, 
 25 Heav. IIC. 
 
 * 1 Smith Ch. Pr. (2d Am. ed.) 99. 
 
 6 15 & 16 Vic. c. 8G, § 11. For form of 
 authority, see Vol. U\. In an injunction 
 cane, tin; authority was allowed to he liied 
 thi! dav after tlie" inf')rmati<>n. Attornev- 
 General ». Murray, 13 W. It. O.'i, V. C. K. 
 Where the solicitor had j^iven the relator 
 an indemnity against the coHt'<,'the infor- 
 mation w:i!* ordered otf the file, with costs 
 to he paid hy the relator and solicitor. 
 Attorney-(ieneral v. Skinners' Co., C. P. 
 Coop. 7. 
 
 8 See Attorney-General v. Wilson, C. 
 & P. 1; Attorney-General v. Cambridge 
 
 Consumers' Gas Co., L. R. 6 Eq. 282, V. 0. 
 W. 
 
 " See Attorney-General v. Conserva- 
 tors of the Thames, 1 H. & M. 1; 8 Jur. 
 N. S. 1203: Attorney-Cieneral v. Metro- 
 politan Hoard of Works, 1 II. & M. 298. 
 Attornov-General r. (Jrcenliill, 33 Beav. 
 193; 9 Jur. X. S. 1307; Attorney-Cieneral 
 V. Mavor of King«ton-on- I'liiiini's, 11 .lur. 
 N. S. 590; 13 W. K. 880, V. C W. ; Attor- 
 ney-General V. Richmond, L. K. 2 Eq. 
 306; 12 .lur. N. S. 544, V. C W. 
 
 « Attorney-General v. Vivian, 1 Kuss. 
 220, 230. See, however, Attorney-General 
 V. Hncknall, 2 .\tk. 328; Corponition of 
 South Molton v. Attorney-General, 6 II. L. 
 Ca. 1. 
 
 " Attorney-General v. Hucknall, 2 Atk. 
 328; Attorncy-Gcni^ral v. Whililcv, 11 
 Ves. 241, 247: Attonicy-Cieneral >'. Ojzlon- 
 dcr, 1 Ves. .1. 240; Attornev-GeiKrMl v. 
 Middleton, 2 Ves. S. 327; Aitorney-tJen- 
 eral i: Hrcreton, id. 425; .Vttorney-tJcneral 
 V. Mayor of Stamford, 2 Swanst. 501 ; At- 
 torney-General V. Parker, 1 Ves. S. 43. 
 
 Who may be 
 
 relators. 
 
 In charity 
 cases relators 
 need not be 
 interested. 
 
 Effect of 
 death of 
 relator.
 
 14 
 
 rKUSONS BY AVIIOM A SUIT MAY RE INSTITUTED. 
 
 Cu. II. § 1. 
 
 Procoodinj: 
 UicTvupoii. 
 
 Informations 
 on behalf of 
 idiots and 
 lunatic-s must 
 be by a rela- 
 tor. ■ 
 
 Lunatic can- 
 not be relator. 
 
 Liability of 
 relators to 
 cost?:, on dis- 
 missal : 
 
 |>l,iintilV ami ivlatof, tlu' suit abates by his death. AVhere, how- 
 ever, the suit is merely an inlbrm.ition, the proecediii^s can only 
 abate by the deatli or determination of interest of the defendant.^ 
 
 ll' tlu-re are several n-lators, the death of aiiy of them, while 
 there survives one, will not in any degree affect the suit; but if 
 all the relators die, or if there is but one, and that relator dies, the 
 suit is not abated. It is, however, irregular for the solicitors of a 
 relator to ]>roceed in a charity informatioji after the death of the 
 relator; and the Court will not permit any further proceedings till 
 an order has been obtained for liberty to insert the name of a new 
 relator, and such name is inserted accordingly; otherwise there 
 would be no person to pay the costs of the suit, in case the infor- 
 mation should be deemed improper, or for any other reason should 
 be dismissed.^ Where, however, a relator dies, the application for 
 leave to name a new relator must be made by the Attorney- 
 General, or with his consent, and not by the defendant ; otherwise 
 the defendant might choose his own ])rosecutor.^ 
 
 "With respect to informations on behalf of idiots and lunatics, it 
 seems that it is not only necessary that the lunatic should be a 
 party, but also that there should be a relator who may be respon- 
 sible to the defendant for the costs of the suit. Thus, in the case 
 of the Attorney- General v. Tyler, mentioned in the note to Lord 
 Redesdale's Treatise,* it appears that the lunatic had been made 
 the relator, but that on a motion being made that a responsible 
 relator should be appointed. Lord Northington directed that all 
 furthe;- proceedings in the cause should be suspended, until a 
 proper person should be named as relator in his stead. This ap- 
 pears to l>e the same cause which has been before referred to as 
 reported in Mr. Dickens's Reports,^ in which, ujion the hearing, it 
 was objected that the lunatic was not a party to the suit, although 
 he was named as relator ; and the cause was consequently ordered 
 to stand over, with liberty to amend by adding parties, and, if so 
 advised, to change the information into a bill. 
 
 The object in requiring that there should be a relator, in infor- 
 mations exhibited on the part of the Attorney-General, is, as we 
 have seen,^ that there may be some person answerable for the 
 costs, in case they should have been improperly filed. Thus, in 
 the case of Attorney- General v. Smart^ before referred to, where 
 the information was held to have been unnecessary, and in con- 
 tradiction to the right, the costs were ordered to be paid by the 
 
 1 Waller i;. Hanger, 2 Bulst. 134; Ld. 
 Red. 100. 
 
 ■■^ Ld Red. 100; Attorney-General v. 
 The Haberda-sliers' Company, 15 Beav. 
 397. 
 
 3 Ld. Red. 100, n. (e); Attorney-Gen- 
 eral V. Harvey, 1 .Jur. N. S. 10G2; Attor- 
 ney-General v. Plumtree, 5 Mad. 4.02; 2 
 
 Mad. Prii* & Pr. Cli. (•3d Lond. ed.) 203, 
 204. 
 
 •t Ld. Red. 29; 2 Eden, 230. 
 
 •J Aula, p. 9. 
 
 6 Ante, p. 13. 
 
 ^ IVes. S.72; Attorney-General v. Par- 
 ker, 3 Atk. 570, 570; 1 Ves. S: 43.
 
 THE queen's attorney-general. 
 
 15 
 
 relator. But in the case of Attorney- General v. Oglender^ before 
 referred to, where the relator insisted upon a particular construc- 
 tion of the will of the person by whom the charity Avas founded, 
 and in which there was considerable ambiguity, although he failed 
 in satisfying the Court that his construction Avas the right one, and 
 the information was consequently dismissed, tlie Court did not 
 make him liable to the costs of the defendant, although it refused 
 to permit the costs to be paid out of the funds of the charity. 
 And in general, where an information prays a relief which is not 
 granted, but the Court thinks proper to make a decree according 
 to the merits, so that the information is shown to have had a foun- 
 dation, although the relief is not such as the relator prayed, the 
 relator will not be ordered to pay the costs.^ 
 
 "Wliere relators conduct themselves properly, and their conduct 
 has been beneficial to the charity, they will usually be allowed 
 their costs ; ^ and it seems that, in some cases, the costs of relators 
 will be taxtjd as between solicitor and client, on the principle that 
 otherwise people would not come forward to file informations ; * 
 and in special cases they will be allowed their charges and expenses, 
 in addition to the costs of the suit.^ But where they incurred 
 expenses without the sanction of the Master, in obtaining informa- 
 tion for the purpose of preparing^ a scheme, they Avere only allowed 
 their expenses actually out of pocket ; ^ and where a petition would 
 have done, instead of an information, the i-elators Avere refused 
 their costs,'' 
 
 In the case of Attorney- General v. Kerr^ an order Avas iji the 
 first instance made to refer it to the Master to tax and settle the 
 costs, charges, and expenses of the relator, of, incidental, and pre- 
 paratory to the cause, properly incurred ; to be paid by the trustees 
 of the hospital of St. Thomas for the time being, or the treasurer 
 thereof, out of the funds belonging to the hospital. To this order 
 two objections Avere made : first, that the decree Avas wrong, so far 
 as it gave the relator the extra costs, charges, and expenses inci- 
 dental and i)reparatory to the cause, properly incurred ; secondly, 
 that these extra costs ought not to be charged on the Avhole prop- 
 erty of the hospital generally, but only on the ]»roperty which Avas 
 the suV^jcct of the information. Lord Langdale M. II. said "on 
 considering the cases Avhich have occurred, it appears tliat tlie 
 relator in a charity information, where there is nothing to impeach 
 
 Ch. II. § 1. 
 
 nor where 
 relief is 
 granted, 
 though not 
 the specific 
 relief prayed. 
 
 AA'hen al- 
 lowed their 
 costs, 
 
 as between 
 solicitor and 
 client, 
 
 and charges 
 and ex- 
 penses. 
 
 Out of what 
 fund. 
 
 1 1 Ves. J. 246. 
 
 2 Attorney-General v. Bolton, 3 Anst. 
 820. 
 
 8 IJeiimes on Costs, H; Attorney-Gen- 
 eral V. The Brewers' Company, 1 1*. Wms. 
 376. 
 
 * Attorney-General «. Taylor, cited in 
 Osborne v. I)cnnc, 7 Ves. 424; sec also id. 
 425; Attorney-tJcneral v. Carte, 1 Dick. 
 113; Heames on Costs, A pp. No. 2, 229; 
 Moggridge v. Thackwell, 7 Ves. 36, 88; 
 
 allirmcd by II. L., see K! Ves. 410; Attor- 
 ncy-(ieneral r. Kerr, 4 Ucav. 2!t7, 30:i; hut 
 sec Atforncy-(!cncr;il i". The Fisliiiioii- 
 gcrs' Company, 1 Keen, 4!)2, wiicfc piuly 
 and party costs only were allowed. 
 
 ^> Attorney-General v. Kerr, iihi sup. 
 
 •> Attorticy-GcniTal v. The Iron-mon- 
 gers' Company, 10 Hcav. 104, l!»0. 
 
 1 Attornev-Gencral v. Hurry, 11 Jur. 
 114. 
 
 « 4 I3eav. 297, 301, 302.
 
 16 
 
 PEKSONS RY WI10:M A SUIT IMAY BE INSTITUTED. 
 
 Cii. 11. § 1. 
 
 Out of what 
 fund oxtra 
 costs allowed. 
 
 Relator 
 should be a 
 perso)i of sub- 
 stance. 
 
 What infor- 
 mations can 
 be dismissed 
 for want uf 
 prosecution. 
 
 till' ]ir.>|.iii'tv ol' tlic suil, ami no special ciiriiinstances to justify a 
 spoi'ial (inler, is, \\\Hm obtaining a docrec lor the charity, CMititlcd 
 to liis costs as bctwc>on solicitor and client, and to be paid the 
 ditloroncc between the amount of snch costs and the amount of 
 the costs which he may recover from the defendants, out of the 
 charity estate. There may be special cases in which the relator 
 may be entitled to charges and expenses, in addition to his costs 
 of the suit as between solicitor and client ; but it appears to me 
 that such cases nuist depend upon their peculiar circumstances, to 
 be brought forward and established by eyidence on proper occa- 
 sions.i Upon the second point, I find that there are several cases 
 in Avhich the costs to be paid by the trustees of a charity have 
 been ordered to be paid out of the funds of the charity generally ; 
 but the trustees objecting, it appears to me more regular and 
 pro])er, in the first instance at least, to charge the costs which fill 
 upon the charity estate on the fund recovered by the information, 
 or on the estate which is the subject of the suit." The decree 
 was accordingly varied, and the relator, instead of being allowed 
 his costs, charges, and expenses of, incidental, and preparatory to 
 the cause, proi)erly incurred, was only allowed his costs as between 
 solicitor and client ; and the costs and sums which were to be paid 
 by the defendants the trustees, instead of being directed to be 
 paid out of the funds of the hospital, were made a charge on the 
 property which was the subject of the suit, and ordered to be 
 raised by sale or mortgage thereof'^ 
 
 As. the principal object in having a relator is, that he may be 
 answerable for the costs of the proceedings, in case the information 
 shall appear to have been improperly instituted or conducted, it 
 follows, as a matter of course, that such relator must be a person 
 of substance, and if it is made to appear to the Court that the 
 relator is not a responsible person, all further proceedings in the 
 information will be stayed, till a proper person shall be named as 
 relator.^ 
 
 An information by the Attorney-General without a relator can- 
 not be dismissed for want of prosecution ; it is his privilege to 
 proceed in what way he thinks proper ; but an information in his 
 name by a relator, is subject to be dismissed for want of prosecution 
 with costs. 
 
 1 Attorney-General v. Kerr, 4 Beav. 
 297, 30-3; but see Attorney-General v. The 
 Skinners' Company, Jac. 029, 630: Attor- 
 ney-General r. Corporation of Manchester, 
 3 L. .J Cb. C4. 
 
 ^ This was the practice before the Char- 
 itable Trusts Act. 1853, 16 & 17 Vic. c. 
 137. Under that .\ct, no proceeding can 
 be taken without the consent of the (Jhar- 
 ity Commissioners, except by the Attorney- 
 General acting ea; ojjicio, or by adverse 
 claimants; see § 17, and post, Chap. XLV. 
 § 2, Charitable Trusts Acts. 
 
 3 Attorney-General v. Tyler, 2 Eden, 
 230; see also Attorney-General v. Knight, 
 3 M. & C. 154. It is presumed, that the 
 same rules for determining who is a " per- 
 son of substance," apply here as in the 
 case of next friends of married women ; as 
 to whom, see j)ost, Chap. III. § 8. There 
 is a reported case, in which a relator was 
 required to give security for costs, see 
 Attorney-General v. Skinners' Co , C. P. 
 ("oop. 1, 5; and see Attorney-General v. 
 Knight, 3 M. & C 154.
 
 GOVERNaiENTS OF FOREIGN STATES. 
 
 17 
 
 Ch. II. 5 2. 
 
 Section II. — Governments of Foreign States. 
 
 It seems to have been considered by Lord Thurlow as a doubt- Foreign 
 
 fill j)oint, whether the sovereign of a foreign State could sue in the 
 municipal courts of this country, or whether the claims of such a 
 person were not matter of application from State to State.^ The 
 point, however, has now been determined in the affirmative.^ 
 Thus, a bill was filed on behalf of the King of Spain, and of two 
 other persons resident in London, claiming some property which 
 had been received by one of the defendants, under a treaty between 
 France and Spain, and which, it was alleged, was the property of 
 the King of Spain. To this bill a general demurrer was put in ; 
 and amongst other, grounds of demurrer, it was contended, that 
 the King of Spain, being a foreign absolute sovereign, was not 
 capable of maintaining a suit in a Court of Equity here, or at least, 
 that he was not capable of maintaining a suit for the enforcement 
 of alleged rights belonging to him only in his royal character. 
 This demurrer was allowed by Lord Lyndhurst, but upon a difler- 
 ent ground, namely, that the parties who had been joined with the 
 King of Spain as co-plaintiffs had no interest in the subject-matter 
 of the suit;* and after the allowance of the demurrer, the King of 
 Spain alone filed another bill against the same defendants, for the 
 same purposes as before, and the defendants demurred again ; but 
 
 govenimente 
 may sue. 
 
 1 Barclay v. Russell, 3 Ves. J. 424, 431 ; 
 see also the Nabob of the Carnatic i'. East 
 India Company, 1 Ves. .J. 371, where the 
 authorities upon this point are collected. 
 
 ■^ The King of Spain v. Machado, 4 
 Ru.ss. 225, 236; Hullett v. King of Spain, 
 2 Biigh, X. S. 31; S. C. 7 Bligh, N. S. 359; 
 see also Citv of Berne v. Bank of P^ngland, 
 
 9 Ves. 847"; Dolder v. Bank of England, 
 
 10 Ves. 352; Dolder v. Lord Huntingfield, 
 
 11 Ves. 283; King of the Two Sicilies v. 
 Willcox, 1 Sim. N. S. 301, 332; United 
 States of America v. Prioleau, 2 II. & M. 
 569; 11 .lur. X. S. 792; I'nited States of 
 America v. Wagner, L. ii. 3 Eq. 724; S. 
 C. L. U. 2 Ch. Ap. 582; Prioleau v. United 
 Slates and Andrew .loiwison, L. K. 2 Krj. 
 659; United States of America v. McIJea, 
 L. K. 3 Ch. Ap. 79. 
 
 The cloctrine that the sovereign of one 
 State may maintain a suit in the Courts 
 of Equity of another State, is now estab- 
 lished in aflirmance of the right, upon very 
 satisfactory princi[iles. See Story Eq. 
 \'\. § 55: "Brf)wn v. Minis, 1 M'Cord, W; 
 2 Kent (lUh ed.), 2K5, note. A foreign 
 8overi-ign State adopting the republican 
 form of government, and recognized by 
 the government of her .Majesty the Queen 
 of Enghmd, can sue in the Courts of her 
 Majesf}' in itn own name so recognized. 
 United States of America v. Wagner, L. 
 R. 2 Cli. A p. 582. If a State were to re- 
 
 VOL. I. 
 
 fuse permission to a foreign sovereign to 
 sue in its Courts, it might become a just 
 cause of war. Story Eip PI. § 55; King 
 of Spain v. Mendazabel, 5 Sim. 596; Ed- 
 wards, Part, in Eq. 33, 34, 35; Calvert, 
 Parties, ch. 3, § 27, pp. 310, 311. 
 
 By the Constitution of the United States, 
 foreign States are expressly authorized to 
 sue in the Courts of the "United States. 
 See Story Eq. PI. § 55, note; Const. U. S. 
 Art. in." § 2. One of tlie States of the 
 Union may appear as plaintill" in the Su- 
 preme Court of the United States, against 
 either another State, or tiie citizens there- 
 of. Const. U. S. Art. III. § 2; Governor 
 of Georgian. Aiadrago, 1 Peters, 110; U. 
 States V. Peters, 5 Crancii, 115; (J. States 
 V. Blight, 3 Hall, Law .lourn. 197; Osboru 
 V. United States Bank, 9 Wheat. 857; U. 
 States ?;. Percheman, 7 Peters, 51 ; New 
 York V. Connecticut, 4 Dallas, 1; New 
 .Jersey v. New York, 5 Peters, 284 ; Rhode 
 Island I". iMassaciiusetts, 13 Peters, 23; S. 
 C. 14 Peters, 210; 3 Story Const. U. S. 
 §§ Hi75-1083; Xabob of liie Canintic v. 
 J'^ast India Co., 1 Sumner's Ves. 371, note 
 (a). One State, as a corporation, may sue 
 in the (lourts^of another State. Delafield 
 V. State of Illinois, 2 Hill (N. Y.), 159; 
 S. C. 8 Paige, 627; Mines v. State of 
 Xorth Carohna, 10 Sm. & INI. h'l'.K 
 
 3 King of Spain v. Machado, 4 Kuss. 
 225, 230.
 
 18 
 
 PERSONS BY WHOM A SUIT MAY BE INSTITUTED. 
 
 Tn. II. § J. 
 
 Seciis, where 
 govern iiiont 
 not recog- 
 nized. 
 
 The fact of a 
 foreif^^n State 
 not b<.'iii<; 
 recognized is 
 judicially 
 noticed. 
 
 tin- lU'iiiiiniT was ovornilcd by Jjonl Lyndhurst.,^ and his Lord- 
 ship's jiuliiinont was coutirmed by the Tloiisc of Lords on a])j)oal.^ 
 Li giving judgment upon tliat occasion, Lord Kedesdale observed, 
 " Tliis is one of the clearest cases that can be stated. I cohceive 
 that there can be no doubt that a sovereign may sue. If he can- 
 not, Ihoie is a riglit without a remedy; for it is only by suit in 
 Court that the respondent can obtain his remedy: he sues, as 
 every sovereign must sue, generally, either on his own behalf, or 
 on belialf of his subjects." But it seems that the right of a foreign 
 sovereign to sue in the municipal Courts of this country is confined 
 to those cases in which it is sought to enforce the j^i'ivate riglits of 
 the sovereign or of his subjects; and that the infringement of his 
 prerogative rights does not constitute a ground of suit.® 
 
 To entitle a foreign government to sue in the Courts of this 
 country, it is necessary that it should have been recognized by the 
 government here. This point aj^pears to have been first discussed 
 in the case of The City of JBerne, in Switzerland, v. Jlie Hank of 
 England* which arose from the application of a person describing 
 himself as a member of the common council chamber of the city of 
 Berne, on behalf of himself and of all others the members of the 
 common council chamber and the burghers and citizens of that 
 city, to restrain the Bank of England and South Sea Company 
 from permitting the transfer of certain funds standing in the 
 names of trustees, under a purchase by the old government of 
 Berne before the revolution ; the application was opposed, on the 
 ground that the existing government of Switzerland, not being 
 acknowledged by the government of this country, could not be 
 noticed by the Court ; and Lord Eldon refused to make the order : 
 observing that it was extremely difficult to say that a judicial 
 Court can take notice of a government never recognized by the 
 government of the country in which the Court sits; and that 
 whether the foreign government was recognized or not, was matter 
 of public notoriety. The recognition of a foreign government by 
 the government of this country is conclusive, and the Court cannot 
 listen to any objection to its title.^ 
 
 The fact of a foreign government not having been recognized 
 by the government of this country must be judicially taken notice 
 
 1 4 Russ. 560; see also the Columbian 
 Government v. Rothschild, 1 Sim. 94; 
 King of Hanover v. Wheatley, 4 Beav. 
 7«. 
 
 2 2 Bligh N.S. 60; and see Duke of 
 Brunswick v. King of Hanover, 6 Beav. 
 1; 2 H. L. Ca. 1; ami post, Chap. IV., 
 § 4, on the liabilit}' of foreign States to be 
 sued. 
 
 8 Per L. J. Turner in Emperor of Aus- 
 tria V. Dav, 3 Ue G., F. & .J. 217, 251, 252; 
 7 Jur N". S. 639, 644; see also United 
 States of America v. I'rioleau, 2 II. & M. 
 
 559; 11 Jur. N. S. 792; U. States of 
 America v. Wagner, L. R. 3 Eq. 724, V. 
 C. W.; L. R. 2 Ch. Ap. 682, L. C. & L. 
 JJ. ; U. States of America v. McRae, L. 
 R. 4 Eq. 327, V. C. W. ; L. R. 3 Ch. Ap. 
 79, L. C. 
 
 * 9 Ves. 347; and see Bolder v. Bank 
 of Englnnd, 10 Ves. 353; Dolder v. Lord 
 Huntinglield, 11 Ves. 283. 
 
 5 Emperor of Austria v. Day, 2 Giff. 
 628; 7 Jur. N. S. 483; 3 De G., F. & J. 
 217; 7 Jur. N. S. 639.
 
 GOVERNMENTS OF FOREIGN STATES. 19 
 
 of by the Court, even though there is an averment introfluced into Ch. ii. § 2. 
 the bill that the government in question has been recognized.^ "" "^ "^ 
 Thus, when, in order to prevent a demurrer, it was falsely alleged 
 in the bill that a revolted colony of Spain had been recognized by 
 Great Biitain as an independent State, and a demurrer was never- 
 theless put in, Sir Lancelot Shadwell V. C. allowed the demurrer ; 
 observing, that if the' plaintiif makes the fact that this is an inde- 
 pendent government i-ecognized by the government of this coun- 
 try, where it is not so, the foundation of his case, the Court must 
 judicially take notice of what is the truth of the fact, notwith-. 
 standing the averment on the record ; because nothing is taken to 
 be true except tliat which is projDerly pleaded, and that when a 
 fact is pleaded which is historically fojse, and which the judges are 
 bound to take notice of as being false, it cannot be said to have 
 been properly pleaded merely because it is averred, and the Court 
 must take it just as if there had been no such averment on the 
 record.- And, upon the same principle, it has been held, that the 
 Courts of this country will not entertain a suit for matters arising 
 out of contracts entered into by individuals with the governments 
 of foreign countries, which have not been acknowledged by the 
 government of this country.^ 
 
 A foreign sovereign or State sues by the name by which he or it iiow a foreign 
 has been recognized by the government of this country, and is not ^''^^'^ '*'^^^- 
 bound to sue in the name of any officer of the government, or to 
 join as co-plaintiff any such officer upon whom process may be 
 served, or who may be called upon to give discovery upon a cross- 
 bill.* And whei'e a foreign State comes voluntarily as a suitor into 
 
 1 Taylor v. Barcla.v, 2 Sim. 213, 220- officers who are entitled to represent the 
 223. _ interests of the State,' must have referred 
 ^ J(>i<i- to some persons or bodj' in whom the in- 
 8 Thomson v. Powles, 2 Sim. 194, 210. terests of the State were vested, and who 
 * In United Stntes of America t'. Wag- were, tlierefore, entitled to represent it in 
 ner, L. U. 2 Cii. Ap. 582, it was held that a suit." In regard to the distinction 
 a foreign sovereign State adopting the clainu'd to exist between a monarchical 
 republican form of government is not and a republican government in this re- 
 bound to sue in the name of any officer of spect, Lord Justice Turner in the above 
 the government, or to join as co-pluintifF case (L. R. 2 Ch. Ap.-592) said: ''In the 
 any such oflicer on whom process may be cases referred to, the form of govenmient 
 served, and who may be called upon to was monarchical; and I take it that, in 
 give discovery upon a cross-liill; reversing such cases, the public propertv of the 
 the order of Sir W. I'age Wood (Lord State, so far as it is not by the "Constitu- 
 Hatherley) in S. C. L. It. :i Ltj. 724. In tion of the State otherwise destined, vests 
 the above case (L. H. 2 Ch. Ap. 589, 590) in the sovereign, subject to a moral obli- 
 Lord Chelmsford L. ('., referring to the gation on his p:irt to applv it (or the ben- 
 remarks of Sir .J')hn Leach, in The (!o- efit of his sul)jects; and wiicn he sues in 
 lumbian (Government v. liothschild, 1 Sim. respect of the (lublic property, ho sues, 
 94, said, "now I do not understand this not as the mere repre-entat;ve of the 
 to be a decision that the State of (Jolum- State, but as tlie [lerson in wliom the 
 bia could not be i)laintint in a suit insti- ])ro|)erty is ve'^ted lor the benefit of 
 tuted for the recovery of the property of the State. In the case of a republic, the 
 the State, much less that they could'not public propertv of the State remains in the 
 sue unless they appointed some public Stale, and the State, therefore, and not 
 officer, having himself no interest in llif any mere officer of the State, is the proper 
 subject in litigation, to represent their i)arty to sue for it." Similar remarks 
 rights. The Vice-Chancellor, by the words, were made bv the Lord Chancellor iind 
 'It must sue in the names of some public Lord Cairnes in the same case. Sec Pres-
 
 20 
 
 PERSONS HY AVllOIM A SUIT MAY BK INSTITUTED. 
 
 t'li. 11. § ■!. 
 
 Foroijiii Siato 
 suin^ l>o- 
 coinos siil>joct 
 to the juris- 
 dk'tjoii ill 
 Equity, as to 
 connected 
 matters. 
 
 Colonial 
 govornincnts, 
 exist inti by 
 letters-pat- 
 ent, may sue. 
 
 a Couft of L:i\v or luniit y in Kni;l:uul, it becomes 8ul>)ecl,, us to all 
 matters eonnocted with that suit, to the jurisdiction of a Court of 
 E«]uity;^ and a bill tiled by it may be dismissed with costs.'-^ An 
 ambassador, or minister plenipotentiary, of a foreign State, does 
 not pro]>erly represent that State in a Court of justiee." 
 
 It seems that a eolonial government, existing by letters-patent, 
 which is in some degree similar to a corporation possessing i-ights 
 in England, may sue here, and ought to be regulated by the law 
 of England, under whieh it has existence ;■* thus, in Penn v. 
 Lord Jialtimore,'^ Lord Ilardwicke made a decree at the suit of 
 the governor of a province in America, claiming under letters- 
 patent, by which the district, property, and government had been 
 granted to his ancestor and his heirs. The suit Avas for the specific 
 peribrnuuice of articles, executed in England, respecting the boun- 
 daries of the two provinces of Maryland and Pennsylvania, in 
 North America; and Lord Ilardwicke, although he admitted that 
 the original jurisdiction, in -cases relating to boundaries between 
 provinces, was in the King in council, made a decree : founding 
 the jurisdiction upon articles executed in England under seal, for 
 mutual considerations, which he considered as giving jurisdiction 
 to the King's Courts, both of Law and Equity, Avhatever the sub- 
 ject-matter might be. 
 
 Power to sue 
 in coq^orate 
 name an 
 inseparable 
 incident to a 
 corporation. 
 
 By charter. 
 may sue and 
 be sued by 
 
 Section III. — Corporations mid Jo i?it- Stock Companies. 
 
 The right to sue is not confined to persons in their natural 
 capacities : the power to sue and be sued in their corporate name 
 is a power insejiarably incident to every corporation, whether it be 
 sole or aggregate.® 
 
 As a corporation must take and grant by their corpoi'ate name, 
 so by that name they must, in general, sue and be sued ;' and they 
 
 ident of the United States of America v. 
 Drummond, 33 Beav. 449. But the Court 
 may stay proceedings in the original suit 
 until the means of discovery are secured 
 in the cross-suit. United States of Amer- 
 ica V. Wa<;ner, L. K. 2 Ch. Ap. 582, per 
 Lord Chancellor and Lord Cairnes L. .1. 
 J liothscliild V. (^ueen of Portugal, 3 Y. 
 
 6 C. Ex. 594. Prioleau v. United States, 
 L. H. 2 Lf|. 659, V. C. W.; S. C. nom. 
 United States of America v. Prioleau, 12 
 Jur. N. S. 724; King of Spain v. Hullett, 
 
 7 Bligh N. S. 359; 1 CI. & Fin. 333; 
 Duke of Brunswick v. King of Hanover, 
 
 8 Beav. 1 ; U. States of America v. Wag- 
 
 L. R. 3 Kfi. 724. 
 
 Ap. of 
 
 V. c. 
 
 w. 
 
 ner L. R. 2 Ch. Ap. 582, L. C & L. JJ. ; 
 Kfi. 724, " 
 
 2 See LJ. States of America v. McRae, 
 L. R. 8 Kq. 69, 77, V. C. .J.; Queen of 
 Spain V. I'arr, 18 W. K. 110, 112, V. C. .L 
 
 2 Schneider v. Lizardi, 9 Beav. 461, 
 
 466; The Columbian Government v. Roth- 
 schild, 1 Sim. 94. 
 
 4 Barclay v. Rus-sell, 3 Ves. 424, 434. 
 
 5 1 Ves.'S. 444, 446. 
 
 6 1 Bla. Com. 475; Story Eq. PI. § 50; 
 2 Kent (11th ed.) 283; Ilotchkiss v. Trus- 
 tees, &c. 7 John. 356; Sliaron (Janal Co v. 
 Fulton Bank, 7 Wend. 412; Chambers «. 
 Bap. Edu. So., 1 B. Mon. 216; Le Grand 
 V. Hampden Si'iney College, 5 Munf. 324; 
 Trustees of Lexington v. M'Connell, 3 A. 
 K. Marsh. 224; Central Manuf. Co. v. 
 Hartshorne, 3 Conn. 199; Bank of Orleans 
 V. Skinner, 9 Paige, 305. 
 
 " A corporation can be called upon to 
 answer onl}' by its proper name. Binney's 
 case, 2 Bland, 99. So a corporation can 
 sue only by the name and style given to 
 it b}' law. Porter v- Neckervis, 4 Rand. 
 359. See Minot i). Curtis, 7 Mass. 444. In 
 Winnipiseogee Lake Co. v. Young, 40 N.
 
 CORPORATIONS AXD JOLNT-STOCK COMPANIES. 
 
 21 
 
 may sue by their true name of foundation, though they be better 
 known by another name. Thus, the masters and scholars of the 
 Hall of Valens Mary, in Cambridge, brought a writ by that name, 
 which was the name of their foundation, though they were better 
 known by the name of Pembroke Hall, and the writ was held good.^ 
 
 As a corporation by ^jrescription may have more than one name, 
 they may sue by the one name or the other, alleging that they and 
 their predecessors have from time immemorial been known, and 
 been accustomed to plead, by the one or by the other.^ 
 
 A suit by a corporation aggregate, to recover a thing due to 
 them in their corporate right, must not be brought in the name of 
 their head alone, but in their full corporate name, unless it appear 
 that the Act of Parliament or charter by which they are consti- 
 tuted enables them to sue in the name of their head. Yet, though 
 it appear that the head of a corporation is enabled to sue in his 
 own name for any thing to which the corporation is entitled, this 
 will not preclude it from suing by its name of incorporation ; thus, 
 where an action of debt Avas brought in the name of the President 
 and College of Physicians, to recover the penalty of bl. per month, 
 under the stat. 14 Hen. VIII. c. 15, for practising physic in London 
 without a license: on demun-er to the declaration, this objection, 
 among others, was taken, that the action ought to have been 
 brought in the name of the College only, or of the President only, 
 the words of the patent being '■'- quodi2ysi 2yer nomina President is 
 Collegii seu communitatis facidtatis medicince London^'' should sue 
 and be sued. To this it was answered, that they were incorpo- 
 rated by the name of President and College, and had, in conse- 
 quence of that, a power to sue and be sued by that name ; and 
 that this power was not taken away by the additional affirmative 
 power which was given them.^ 
 
 It has been determined, that where an Act of Parliament grants 
 any thing to a corporation, the grant shall take effect, though the 
 
 H. 428, Bell C.J. said: "The practice, 
 we think, is nearl3' universal, that a cor- 
 poration is described in its bill by its cor- 
 porate name, with the ad'iition of the fact 
 that it is a cor[)oration duly established by 
 law in such !i Statu, mid having its place 
 of bu"iriess at such a pliice; ami a corpo- 
 ration defendant is dpscribed in the same 
 way. In the case of pul)lic corporations 
 created l>y public laws the (Jourt is offi- 
 cially to take notice of the corporate char- 
 acter." .See Withers v. Warner, 1 .Str. 
 309. " But in the case of ()rivate corpora- 
 tions, creatcfl by charters or private Acts 
 the Court is not merely not bound to fake 
 notice of the corporate names as such, but 
 they catmot officially take such notice. 
 The ])arly is bound "to allege it, as a fact 
 to be provc'l, if hi- wi.uld avail him'elf of 
 it. If, then, a party does not allege the 
 
 corporate character of either party, plain- 
 tiflf or defendant, it must be assumed by 
 the Court that the name is descriptive 
 either of an individual or of an associa- 
 tion." .See also Union Fire Ins. Co. v. 
 Osgood, 1 Duer, 707; State c. .Mead, 27 
 Vt. 722; State v. Central Kailroad Co., 28 
 Vt. 584; State v. Same, 28 Vt. 583; Cam- 
 den, &c. V. Hower, 4 Barb. 127 ; The Bank 
 17. Sim'>nton, 2 Texas, 531. 
 
 1 44 Ed. III. 35; 1 Kyd on Corp. 253; 
 and sec, as to title by which municipal 
 corporations must siu- and 1>p sued, ('or- 
 pnration of Hochester r. Lee, 15 Sim. 376; 
 Attornev-Cencral /■. < 'orjmration of Wor- 
 cester, 2 Phil. 3; 1 Cuop. t. Cott. 18. 
 
 2 See 9 F.d. IV. 21; 13 Hen. VI I. 14; 
 18 Hen. VH. 1 ; and 21 Hen. VI. 4, which 
 last seems coulni. 
 
 3 2 Salk. 461. 
 
 Ch. II. § 3. 
 
 true name of 
 foundation, 
 though better 
 known by 
 another. 
 
 By prescrip- 
 tion, having 
 several 
 names, may 
 sue f)y either. 
 
 Cannot sue 
 in name of 
 head alone, 
 unless speci- 
 ally author- 
 ized; 
 
 but, though 
 so author- 
 ized, may 
 sue in name 
 of incorpor- 
 ation. 
 
 Whether a 
 corporation, 
 claiming un- 
 der a grant
 
 9-7 
 
 rKRSONS BY WHOM A SUIT INIAY BE INSTITUTRD. 
 
 Cu. II. 5 •?• 
 
 by diflVri>nt 
 nanio fnmi 
 I'orjHir.-ito 
 niiiiio, i-aii 
 suo bv sinh 
 naiiio, (/M(r.'-t T 
 
 CoT\wrM\ou 
 may iiniH'iuli 
 transaiiions 
 efl\'Cti.'(l ill 
 
 its IliUIK'. 
 
 Corporation, 
 havinfc a 
 head, cwnnot 
 sue or be sued 
 without it. 
 
 Head of cor- 
 poration need 
 not be called 
 by his own 
 name, nor 
 any of the 
 members ; 
 but if named, 
 suit will not 
 abate by their 
 deaths. 
 
 truo coi-poratr n;mic l>o not usvd, provided the naino iU'luMlly used 
 be a sutlicirnt (K'sciiption of llio corix^ratiini ; Uiough it maybe 
 doubti'ul wlu'lluT, ill sniiiu' to cntorcc its rlaiiii under that Act, it 
 eati use the nann' therein mentioned.^ 
 
 In the ease of 77/t' Affoni ft/- General v. lF//.s'oy/,- whieh was a 
 joint bill and information, and in which the corporation of Leeds 
 was both jilaintitf and rehitor, an objection Avas made that a cor- 
 ])oration being a body whose identity is continuous, could not be 
 heard to imjieaeh transactions carried into effect in its own name 
 by its former governing body. The objection was overruled by 
 Lord Cottenham, who thought that the true way of viewing this 
 was to consider the members of the governing body of the corpo- 
 ration as its agents, bound to exercise its functions for the purposes 
 for Avhich they were given, and to jn-otect its interests and prop- 
 erty ; and that if such agents exercised those functions for the 
 imrpose of injuring its interests, and alienating its i)roperty, the 
 corporation ought not to be esto])])ed in this Court from complain- 
 ing, because tlie act done Avas ostensibly an act of the corporation. 
 
 We have seen above, that a corporation cannot, unless si)ecially 
 authorized by its constitution, sue by its head alone ; so neither 
 can a corporation aggregate which has a head sue or be sued with- 
 out it, because without it the corporation is incomplete.^ It is not, 
 however, necessary to mention the name of the head,^ nor is it 
 necessary, in the case of corporations aggregate, to name any of 
 the individual members by their proper christian and surnames;^ 
 but if, in a suit in Equity by the members of a corporation in their 
 cor|)orate capacity, they are mentioned by their names, the suit 
 will not" become defective by the death of some of the members, 
 
 1 10 Mod. 207, 208; 1 Kyd on Corp. 
 256. A declaration, upon a promissory 
 note, that it was made to the Meiiway 
 Cotton Manufactory, a corporation, &c., 
 by tlie name of R. M. & Co. wiis held 
 good on demurrer. ]\Ieilway Cotton Man- 
 ufactory V. Adams, 10 Mass. 360. See 
 Charitable Association v. Baldwin, 1 Met. 
 359; Commercial Bank v. Frencli, 21 Pick. 
 586. If, in a contract with a corporation, 
 its name be so given as to distinguish it 
 from other corporations, it is sufficient to 
 supjiort an action in the true corporate 
 name. Hagerstowii Turnpike r. Creeger, 
 5 Har. & .1. 122; S. 1'. Inhabitants of 
 Alio way Creek v. Strong, 5 Ilalst. 323; 
 Berk^ and Dauphin Co. v. Myers, 6 S. & 
 R. 16: Woolwich r. Forrest, I'enninp. 11; 
 Fir.-t Parish in Sutton v. Cole, 3 Pick. 
 232; Angell & Ames Corp. 60, 61; Mil. 
 and Cliil. Turnpike Co. v. Brush, 10 Ohio, 
 111. 
 
 Contracts made by mere servants or 
 agents of corporations may he sued in the 
 name of the corporations. Binuey v. 
 Plumlev. 5 Vt. 500. See Proctor v. Web- 
 ber, 1 Chip. 371; African Society v. Var- 
 ick, 13 John. 38. 
 
 A town may sue by the description of 
 A. & B., and the rest of the inhabitants 
 of such town, instead of using the corpo- 
 rate name merely. Barkhampstead v. 
 Parsons, 3 Conn 1. 
 
 2 C. & P. 1, 21, 24. 
 
 3 2 Bac. Ab. tit. Corp. E. 2. 
 
 4 1 Kyd on Corp. 281. 
 
 5 2 Iiist. 666. " The corporation itself 
 is regarded as a distinct person; and its 
 property is legal!}' vested in itself, and 
 not in its stockholders. As individuals, 
 they cannot, even by joining together 
 unanimously convey a title to it, or main- 
 tain an action at I.aw for its possession, or 
 for damages done to it. Nor can they 
 make a contract that shall hind it, or en- 
 force bj' action a contract that has been 
 made with it." Chapman J. in Peabody 
 V. Flint, 6 Allen, 55, 56. In Kennebec & 
 Port. R K. Co. !'. Port. & Kennebec K.R. 
 Co., 54 Maine, 173, it was held, that a 
 railroad cor[)orati m and a portion of its 
 stockholders cannot join as co-plaintiffs in 
 a bill to redeem the road from a mortgage, 
 there being no allegation that the corpo- 
 ration has been guiliy of any violation of 
 its trust.
 
 COKPORATIONS AMD JOINT-STOCK COMPANIES. 
 
 23 
 
 although it would have abated if the suit had been by them in 
 their individual characters. Thus, where the warden and fellows 
 of Manchester College filed a bill for tithes in their corporate ca- 
 pacity, but in their proper names, wherein a decree was pro- 
 nounced, from which both the plaintifts and defendants appealed, 
 and pending the appeal two of the fellows died, and two new fel- 
 lows were elected in their place, an objection was taken, 6n the 
 ground that the new fellows were not parties; but Lord Eldon 
 held that there was no defect of parties, and directed the appeal 
 to proceed.^ 
 
 A sole corporation, suing for a corporate right, having two capa- 
 cities, a natural and a corporate, must always show in what right 
 he sues.2 Thus, a bishop or prebendary, suing for land Avhich he 
 claims in right of his bishopric or prebend, must describe himself 
 as bishop or prebendary; and if a parson sue for any thing in right 
 of his parsonage, he ought to describe himself as parson. In this 
 respect a sole corporation differs from a corporation aggregate, be- 
 cause the latter having only a corporate capacity, a suit in its cor- 
 porate name can be only in that capacity.^ It also diflers from 
 corporations aggregate, in that by the death of a corporation sole a 
 suit by him, although instituted in his corporate capacity, becomes 
 abated, which is not the case, as we have seen, with respect to suits 
 by corporations aggregate. 
 
 It is to be observed, that in cases of abatement by the death of 
 a corporation sole, there is a material distinction with regard to 
 the right to revive. If the plaintiff was entitled to the subject- 
 matter of the suit for his own benefit, his personal representatives 
 are the parties to revive ; but if he was only entitled for the benefit 
 of others, his successor is the person who ought to revive. Thus, 
 if the master of an hospital, or any similar corporation, institute 
 proceedings to recover the payment of an annuity and die, his 
 successors shall have the arrears, and not his executors, because he 
 is entitled only as a trustee for the benefit of his liouse : but it is 
 otherwise in tlie case of a parson ; there the executors are entitled, 
 and not the successor, befcause he was entitled to the annuity for 
 his own benefit.* On the same prhiciple, if a rent due to a dean 
 and chapter be in arrear, and the dean die, there is no abatement, 
 because the rent belongs to the succeeding dean and chapter ; but 
 if the rent be due to the dean in his sole corporate ca{)acity, it 
 shall go to his executors, and they must revive.*^ 
 
 Although ("orporations aggregate are entitled to sue in tlieir 
 corporate capacity, the Court will not permit parties to assume a 
 
 Ch. II. § 3. 
 
 Corporation 
 sole must 
 show in what 
 right he sues : 
 
 his suit 
 abates *by his 
 death. 
 
 Of revivor : 
 
 where suit 
 for his own 
 benefit : 
 
 wliere for the 
 benefit of 
 others. 
 
 Master of an 
 hospital. 
 
 Parson. 
 
 Dean. 
 
 Suits by ner 
 sons falsely 
 assuming 
 
 1 Blackburn v. Jepson, 3 Swan.st. 132, 
 138. 
 
 2 2 Bac Ab. tit. Corp. K. 2; Weston v. 
 Hunt, 2 Mass. 500. 
 
 3 l/li'l. 
 
 * 1 Ky<l on Corp. 77. 
 <» 1 Kyd on Corp. 78.
 
 24 
 
 PERSONS BY WHOM A SUIT MAY BE INSTITUTED. 
 
 Cii. II. § ;!. oorporato character to which they are not entitled; and where it 
 
 corponitf 
 charactors, 
 not jHTinit- 
 ted. 
 
 Forciflrn 
 
 api>i'ars sutticiently on tlie bill that the j)laintiffs have assmned 
 sucli a character without being entitled to it, a demurrer Avill 
 hold.^ Thus, whore a bill was tiled by sonic of the nieuibers of a 
 lodge of freemasons against others, for the delivery up of certain 
 specilic chattels, in which bill there was great affectation of a cor- 
 j)orato character in stating their laws and constitutions, and the 
 original charter by which they were constituted, a donnu'rer was 
 allowed : because the Court will not permit persons who can only 
 sue as partners, to sue in a corporate character ; and, upon princi- 
 ples of policy,'the Courts of this country do not sit to determine 
 upon charters granted by persons who have not the prerogative to 
 grant them.- 
 
 A suit may be supported in England by a foreign corporation, 
 corporations, jjj their corporate name and capacity,^ and in pleading, it is not 
 necessary that they should set forth the proper names of the per- 
 sons who form such corporation, or show how it w^as incorporated,* 
 though, if it is denied, they must prove that by the hiAV of the 
 foreign country they were effectually incorporated.^ 
 
 Lotbrop V. Commercial Bank of Scioto, 
 8 Drtiia, 114; New Jersey Protection and 
 Lombard Bank v. Thorp, 6 Cowen, 46 ; 
 Pendleton v. Bank of Kentucky, 1 Mon- 
 roe, 171; Taylor v. Bank of Illinois, 7 
 Monroe, 584; Bank of Marietta v. Pindall, 
 2 Rand. 465; Silver Lake Bank v. North, 
 4 John. Oil. 370; Reed v. Conncocbeque 
 Bank, 5 Rand. 326; Bank of Augusta v. 
 Earle, 13 Peters, 519; Stewart v. U. S. 
 Ins. Co., 9 Watts, 126 ; Bank of Washte- 
 naw V. Montgomery, 2 Scam. 422; Guaga 
 Iron Co. V. Dawso'n, 4 Blackf. 202; Me- 
 chanics' Bank of N. York v. Goodwin, 
 2 Green, 239 ; Lewis v. Bank of Kentucky, 
 12 Ohio, 132; Angell and Ames Corp. 
 (9th ed.) § 372. A State is a corporation 
 and mav sue as such in another State. 
 Delatield v. The State of Illinois. 2 Hill 
 (N. Y.), 159; S. C. 8 Paige, 527; Mines v. 
 The State of North Carolina, 10 Sm. & 
 M. 529. 
 
 '* Angell & Ames Corp. (9th ed.) § 632. 
 
 5 Dutch West India Company v. Van 
 Moyses, 2 Ld. Ray. 1535. As to the ne- 
 cessity of proving the corporate existence 
 of a foreign corporation, see School Dis- 
 trict V. BlaiKlell, 6 N. H. 198; Lord v. 
 Bigelow, 8 Vt. 445 ; Society, &c. v. Young, 
 2 N. H. 310 ; The Guaga Iron Co. v. Daw- 
 
 1 Story Eq. PI. § 497 ; see Livingston v. 
 Lynch, 4" John. Ch. 573, 5D6. 
 
 2 Llovd V. Loaring, 6 Ves. 773; Wo- 
 mersley v. Merritt, L. R. 4 Eq. 695, 696, 
 V. C. IM. 
 
 3 A foreign corporation maj' sue in its 
 corporate name in Chancery, as well as at 
 Law. Silver Lake Bank v. North, 4 John. 
 Ch. 372; Story Eq. PI. § 55; 2 Kent (11th 
 ed.) 284, 285 In note; Society for Propa- 
 gating the Gospel v. Wheeler, 2 Gall. 105; 
 Society for Propagating the Gospel v. 
 New ilaven, 8 Wheat. 464; South Caro- 
 lina Bank v. Case, 8 B. & C. 427 ; Bank 
 of Scotland v. Kerr, 8 Sim. 246; Angell 
 and Ames Corp. (9th ed.) §§ 372-375; 
 Collins Company v. Brown, 3 K. & J. 423 ; 
 Prioleau v. United States, L. R. 2 Eq. 668; 
 The Bank v. Sinionton, 2 Texas, 531. It 
 is now ))rijviilijil Ijy statute in New York, 
 that a foreign corporation may, upon giv- 
 ing security for the pa3'ment of the costs 
 of suit, prosecute in the Courts of the 
 State, in the same manner and under the 
 same checks, as domestic corporations. 
 Rev. Stat. N. Y. vol. 2, p. 457. Security 
 for costs is required in such cases in Mas- 
 sachusetts. Genl. Sts. c. 123, § 20. See 
 Mechanics' Bank of N. Y'ork v. Goodwin, 
 2 Green, 439. A corporation chartered in 
 one State may sue in the Courts of an- 
 other State. " Williamson v. Smoot, 7 
 Martin (Lou.) 31; Lucas v. Bank of 
 Georgia, 2 Stewart. 147; New York Fire 
 Ins. Co. V. Ely, 5 Conn. 560; Cape Pear 
 Bank v. Stinemetz, 1 Hill, 44; Bank of 
 Michigan v. Williams, 5 Wend. 478; 7 
 Wend. 539; Poitsmouth Liver\' Co. v. 
 Watson, 10 Mass. 91 ; Taylor v'. Bank of 
 Alexandria, 5 Leigh, 471; Bank of Ed- 
 wardsville 1". Simpson, 1 Missou. 184; 
 
 son, 4 Blackf. 203; Portsmouth Livery 
 Co. V. Watson, 10 Mass. 92; Angell & 
 Ames Corp. (9th ed.) .§§ 632, 633; The 
 Bank v. Simonton, 2 Texas, 531. 
 
 In case of foreign corporations, the 
 plaintiffs, under the general issue, are 
 bound to show their corporate capacity, 
 but the Court will take notice, ex officio, 
 of the capacity of corporations created in 
 Ohio to sue in that State. Lewis v. Bank 
 of Kentucky, 12 Ohio, 132; see Agnew
 
 CORPORATIONS AND JOINT-STOCK COMPANIES. 
 
 25 
 
 In the case last mentioned the plaintifis were given leave to 
 amend their bill, by striking out their present style as plaintifis, 
 and suing as individuals on behalf of themselves and the other 
 persons interested.^ Ever since that period it has been held, that 
 where all parties stand in the same situation, and have one com- 
 mon right and one common interest, two or three or more may 
 sue in their own names for the benefit of all ; and upon this prin- 
 ciple, large partnerships or associations in the nature of joint-stock 
 companies, although not incorporated, have been permitted to 
 maintain suits instituted in the name of a few or more individuals 
 interested, on behalf of themselves and the other partners in the 
 concern. - 
 
 By the statute 7 Will. lY. & 1 Vic. c. 73, the Sovereign is em- 
 powered to grant letters-patent, establishing companies, and pro- 
 viding that the companies so established shall be able to sue and 
 be sued by their public officer; and many joint-stock companies or 
 associations for insurance, trading, and 'other purposes, have from 
 time to time been established by special Acts of Parliament, 
 which, although they have not formed them into corporations, 
 have still confen-ed upon them many privileges, in consequence 
 of which such companies have acquired something of a corporate 
 character; amongst -other privileges so conferred, may be reckoned 
 that of suing and being sued in the name of their public officer.^ 
 The history of these companies or associations, and of the pro- 
 visions which have from time to time been introduced into Acts 
 of Pai-liament creating or regulating them, has been detailed at 
 considerable length by Lord Eldon, in Fa?^ Sandau y. Moore ;^ 
 and his Lordship's observations may be useful to those upon whom 
 the duty may devolve of framing suits on behalf of, or against, 
 persons connected with the diffc'rent classes of joint-stock compa- 
 nies there enumerated. It will suftice, however, for our present 
 purpose, to obseiwe, that where any members of a comj>any wish to 
 sue the directors or others who are members as well as tlu'inselves, 
 they may maintain such a suit in their own individvial capacities; 
 either suing by themselves, and making the rest of the company 
 
 burn v. Thompson, 16 Ves. 321, 325; 
 Pciirce V. I'iper, 17 Ves. 1; HIain v. Agar, 
 1 Sim. .37, 43; Grav r. Cliaiilain, 2 S. & 
 S. 267, 272; 2 Ituss. 126; Van .Siindau r. 
 Mooi-p, 1 Russ. 441; I.iind r. lilanclianl, 
 4 Hare, 290, 292; Woni.islcy r. .'Mcriilt, 
 L. H. 4 Kq. 69.5, V. U. M. ; a'nd see 7«'s^ 
 Chap. V. § 1, J'arties. 
 
 3 As to aliatuinent !))• deatli of a pulilic 
 officer, sec 7 (Jeo. IV. c. 46, § 9, ami Hiir- 
 mestor v. Baron von Stenz, 2.'t Hcav. :i2. 
 For form of order to sulistitute a new ofli- 
 cnr, .'fee Meek v. Hiirnley, M. K , 12 .Ian. 
 1863, Heg. r-il). 15. 6; and Seton, 1173. 
 
 * 1 Uu.'j». 441, 4u8. 
 
 Cn. II. § 3. 
 
 .Toint-stock 
 companies. 
 
 Companies 
 established 
 by letters- 
 patent, and 
 under special 
 Acts of Par- 
 liament, sue 
 by their pub- 
 lic officers. 
 
 Individual 
 members 
 may sue tlie 
 directors. 
 
 V. Bank of Gettysburg. 2 liar. & G. 478; 
 Portsmouth Livery (.'o. v. Walson, 10 
 Mass. 92; Kajfle Hank of New Haven v. 
 Cliapin, 3 I'ick. 1^0; Carmiiiiacl r. Trus- 
 tees of School Lau'ls, 3 Howard (MLx's.), 
 84; Williams ,■. I5:irik of M. 7 Wend. .539; 
 IJank of Water.ville r. W. W. lik. 13 
 How. I'r. 270; Zion (Jhurcli v. St. I'eter's 
 Church, r, W. & S. 21.5; AtiKell & Ames 
 Corp. (9th ed.) § 632; Wiiinipiseogee 
 Lake Co. v. Younfc, 40 N. H. 420, 428. 
 
 1 Ves. 779; and nee Womerslev v. 
 Merriit, I.. U. 4 Kq. 695, 696. V. ('..M. 
 
 2 See Chancev ''. Mav. I'rec. in Cli. 
 692; Good v. Blewitt, 13 Ve». 397; Cock-
 
 26 
 
 TEUSONS BY Uinm A SUIT MAY BE INSTITUTED. 
 
 Cii. II. § .1. 
 
 Public orticor 
 may siio 
 ilinvtors. in 
 rospci-t ofpast 
 tniii>;irtioiis. 
 
 Companies 
 rejristored 
 under 7 & 8 
 Vice. 110, or 
 under .loint- 
 Stoek Com- 
 panies' Acts, 
 185(i. 18.-)7, 
 and 1858, or 
 Companies' 
 Act, 1862, sue 
 and arc sued 
 in their cor- 
 porate name. 
 
 iU"tontl:uits, or suinu- on l>rli:ilf of ihoiiiselves and the other mem- 
 ber.-^ o\' tlio association.^ Although the rights and duties of tlie 
 pubUc ottieer are ehietly to sue and be sued on belialf of the com- 
 ]>any, in matters arising between tlie company on the one hand, 
 and strangers or persons who are not partners on the other, yet it 
 lias been hehl, that the public officer may also institute proceedings 
 against certain of the directors, in respect to past transactions to 
 compel them ti) refund sums alleged to be due from them to the 
 partnership. This was decided by Sir James Parker V. C, with ref- 
 erence to the Joint-Stock Banking Act, 7 Geo. IV. c. 4G, § 9,'^ but 
 the reasons on which his judgment rested would seem to render 
 his decision applicable to all joint-stock companies duly registered. 
 The statute 7 & 8 Vic. c. 110, was, from the year 1844 until the 
 passing of "The Joint-Stock Companies' Act, 1856,"^ the statute 
 which regulated the constitution and management of almost all 
 joint-stock comi)anies ; * and questions may still occur with refer- 
 ence to companies constitufed under it ; but it was repealed, as to 
 all future companies, by § 107 of the last-mentioned Act ; and that 
 section was repealed and re-enacted by the 20 & 21 Vic. c. 14, 
 § 23. The Act of 1856, as modified by the Joint-Stock Companies' 
 Acts of 1857 and 1858, regulated the constitution and manage- 
 ment of joint-stock companies until the passing of "The Com- 
 panies' Act, 1862;"^ which repealed these Acts, but consolidated 
 and re-enacted them. For the present purpose, however, it is 
 sufficient to observe, that all companies constituted under these 
 Acts became and still become, upon certificate of incorporation, a 
 body corporate, by the name prescribed in the memorandum of 
 association.® 
 
 1 Hitcliens v. Congreve, 4 Russ. 562; 
 see Angell & Ames Corp. (9th ed.) § 391; 
 Colman v. Eastern Counties Raihviiy Co., 
 10 Beav. 1; liagshaw v. Eastern Counties 
 R-.iilwav Co., 7 Hare, 114;- Heath v. Ellis, 
 12 Met". 601; Allen ». Curtis, 26 Conn. 
 4.56; Putnam v. Sweet, 1 Chand. (Wis.) 
 286; Sackett's Harbor Bnnk v. Blake, .3 
 Riclri. Eq. 22.5; Cunlitfe v. Manchpster and 
 Bolton Canal Co., 1 M. & K. 131, note; 
 Dodfje r. Wol'^ey, 18 How. U. S. 331; 
 Manderson v. Commercial Bank, 28 Penn. 
 379; Halt. & Ohio K.R. Co. v. Citv of 
 WheeliuL', 13 GrMtt 40. 
 
 A miiiority of tlie stockholders of a 
 corporatirin may maintain a l)ill in Equity 
 in behalf of themselves and the other 
 stockholders, for conspiracy atid fraud, 
 whereby fh«-ir interc'-ts have been sacri- 
 ficed, against the corporation and its offi- 
 cers and others who participate therein. 
 Peabodv v. Flint, 6 Allen, .52; Robinson 
 .e. Smith, 3 I'aige, 222; see Her-ey v. 
 Veazie, 24 Miiitie, 9; Smith v. Poor, 40 
 Maine, 41.5. 
 
 An individual stockholder may mnin- 
 tain a suit in Equity against the directors 
 
 of a corporation for misconduct in office. 
 Allen V. Curtis, 26 Coim. 456; Schley v. 
 Dixon, 24 Geo. 273; Kean v. .Johnson, 1 
 Stockt. (N. .J.) 401; Binney's case, 3 
 Bland, 142; Revere v. Boston Copper Co., 
 15 Pick. 351; see Durfee v. Old Colony, 
 &c., R.U. Co., 5 Allen, 230. 
 
 ■^ Harrison v. Brown, 5 De G. & S. 
 728; and see Sedden «. Connell, 10 Sim. 
 58, 76. 
 
 a 19 & 20 Vic. c. 47. 
 
 * This Act did not apply to banking or 
 insurance companies, see § 2. 
 
 6 25 & 26 Vic. c. 89. 
 
 6 Bv the 20 & 21 Vic. c 14, § 24, re- 
 pealed by 25 & 26 Vic. c. 89, but re-enacted 
 by il. § 69 where there is reason to be- 
 lieve that the iissets of a limited company, 
 suing in Equity, may be insufficient for 
 payment of costs, the compiiny may be 
 required to give .security for costs, see 
 Australian Steam Company v. Fleming, 4 
 K. & .1. 407; Caillaud's Company v. Cail- 
 laud, 26 Beav. 427; 5 Jur. N. S. 259; 
 Southampton, &c., Company v. Rawlins, 
 2 N. R. 544, M. R. ; 9 Jur. N. S. 887; 
 Southampton, &c., Company v. Pinnock,
 
 PERSONS RESIDING OUT OF THE JURISDICTION. 
 
 "Ai 
 
 Sectiox IV. — Persons residing out of the Jurisdiction. 
 
 •The rule that all persons not lying under the disabilities after 
 pointed out are entitled to maintain a suit as plaintiffs in the Court 
 of Chancery, is not affected by the circumstance of their being- 
 resident out of the jurisdiction of the Court, unless they be alien 
 enemies, or are resident in the territory of an enemy without a 
 license or authority from the government here.^ 
 
 In ordei-, however, to prevent the defendant or respondent in 
 the case of a petition, from being defeated of his right to costs, it 
 is a rule, that if the plaintiff'^ or his next friend,'^ or the petitioner,* 
 if he is not a party to the cause,-^ is resident abroad, the Court will, 
 on the appUcation of the defendant, or respondent, order him to 
 give security for the costs of the suit or pefition, and in the mean 
 time direct all proceedings to be stayed.*^ 
 
 So, also, where a plaintiff appears to have no permanent resi- 
 dence, he Avill be made to give security for costs.'^ 
 
 Ch. II. § 4. 
 
 May sue, 
 unless alien 
 enemies, or 
 residents in 
 enemy's 
 countiy with- 
 out license ; 
 
 but may be 
 ordered to 
 give security 
 for costs. 
 
 11 W. R. 978, M. R.; Washoe Mining 
 Compan}' v. Ferguson, L. R. 2 Eq. 371; 
 V. C. \V. The security must be given 
 where, the company being in a course of 
 winding up, the suit is bj' the officinl 
 liquidator; Freehold Land & Brictc-mak- 
 ing Coupiny r. Sparjjo, W. X. (1868) 94, 
 M. R. ; but it will not be required where 
 the company is plaintiff in a cross-suit. 
 Accidental & Marine Ins. Co. v. Mercati, 
 L. R. 3 V.c\. 200, V. C. W. The security 
 is not conhiied to 100^.. but must be for an 
 amount cfjual to the probable amount of 
 costs pavable. Imperial Bank of India v. 
 Bank of HindustMn, L. R. 1 Ch. Ap. 437; 
 
 12 Jur. N. S. 403, L. .IJ., overruling Aus- 
 tralian Steam Company v. FliMuing, ubi 
 sup.; and neGjiusl, 33. On an application 
 for an injunction by a limited company, 
 the Court will require ati undertaking as 
 to damages by some responsible person ; 
 Angl'>-I)anubi;in Company v. Rogerson, 
 10 Jur. N. S. 87, M. R. ' Pnciiic Steam 
 Ship Co. V. Gibbs, 14 \V. 1{. 218, V. C. W. 
 As to suits l)V otHcial managers under the 
 Winding-up Acts 1«'48 aid 1849, see 11 & 
 12 Vic. c. 4.5, §§ oO, 60 ; see also Ernest v. 
 Weiss, 2 Dr. & Sm. .''.61; 9 .Jur. N. S. 145. 
 As to suits by liquidators under the .loint- 
 Stock Companies' Acts, 185G-8, see 19 & 
 20 Vic. c. 47, §§ 90, 102 (7); and .see 21 
 & 22 Vic. c. 60,"§ G; and under the Com- 
 panies' Act, 1K02, see 2'> & 20 Vic. c. 8!), 
 §§9.0, 13:3 (7); and s^m; §§ 87, 1.11, 19.5, 
 202; Turquand i'. Kirbv, l> R. 4 Kq. 123, 
 M. R.; I'uKiuahd n. .Mai shall. L. R. Eq. 
 112. M. R.; L. R. 4 Ch. Ap. 376, 382, 
 L. (J. 
 
 1 Story Eq. F'l. §§ 51-54. 
 
 2 Tliouudi >uing a-* executor or admin- 
 istrator. Knight u. De l'diU|uiere, .Sau. & 
 S. C4H. 
 
 » Kerri'. (irlle-pie, 7 Ucav. 209. 
 
 * Drever r. Maudeslcy, 5 Russ. 11; Ex 
 
 parte Seidler, 12 Sim. 106; Re Norman, 
 llBeav. 401; Atkins i: Cooke, 3 Drew, 
 694; 3 .Jur. N. S. 28.3; Partington v. Rey- 
 nolds, 6 W. R. 307. 
 
 5 Cochrane v. Fearon, 18 Jur. 568. 
 
 6 Fox V. Blew, 5 Mad. 147; Lillie v. 
 Lillie, 2 M. & K. 404; Lautour v. Hol- 
 combe, 1 I'hil. 262, 264: Newman v. Liin- 
 drine, 1 McCarter (X. J.), 291; Biirker v. 
 Lidweil, 1 Jones & Lat. 703. And it lias 
 been held that in default of the plaintiff 
 giving security for costs wdien ordered, 
 his bill should be dismissed. Carnnc v. 
 (Jrant, 1 Sim. 348; Massey v. Gillclan, 1 
 Paige, 644; Breeding v. Finlev, 1 Dana, 
 477; Brids^es v. Canlield, 2 Kdw. Ch. 217. 
 But if the non-resident plaintilf sues as 
 executor or administrator, it has been 
 held, that the defendant cannot compel 
 security for costs. Goodrich v. Peiulleton, 
 3 .lohn. Ch. 520; Catclicart f. Ilewson, 1 
 Unvcs, 173. Especially after plea, 3 John. 
 Ch. 520. As to giving securitj' where all 
 the plaintiffs are out but the next friend 
 is within the jurisdiction, see Lander v. 
 Pju-r, 16 L. J. Ch. 269, L. C. In Massa- 
 chusetts, all bills in Equity, in which the 
 jdaintiff is not an inhabitant of the St:ite, 
 must, before the entry tluMV'or, be inll(lr^('d 
 by some sulKcient person who is an inhab- 
 itant of the. State. Genl. Sts. c. 123, § 
 20. But in case the plaintiff has failed to 
 have his bill indorsed before entry, by ac- 
 cident, mistake, or inadvertence, tlio ( 'ourt 
 may, in any stage of the cause, allow him, 
 upon such terms as suem just and reason - 
 Ml)le, to furnish an indorscr with the sumo 
 effect as if the bill had been indorsed be- 
 fore entry in Court. St. of Mass. 1805, c. , 
 45, § 1. 
 
 7 Bailey 7'. Gundrv, 1 Keen, 53; Player 
 )•. Anderson, 15 Sim. 104; 10 .lur. lii!»; 
 and see Calvert i'. Day, 2 V. & ('. Ex. 
 217; Sibbcring v. ICarlof Baicarrus, 1 Uo 
 
 So where no 
 
 permanent 
 
 residence.
 
 28 
 
 TEUSONS RY AVITOM A SUIT M\Y r>K INSTITUTED, 
 
 II. 5 4. 
 
 nor in Scot- 
 land. 
 
 Security for 
 costs not IV- 
 quirod whore 
 co-plaintitls 
 in Enfjland, 
 nor wliore 
 plaintitl' is an 
 otWi-er, or a 
 resident 
 abroad, on 
 public ser- 
 vice. 
 
 Peers of the 
 realm are not 
 exempt. 
 
 General rule. 
 
 Cross-bill. 
 
 It li;is IxHMi lu'ld in Ireland,' Hint notwitlistaiuliiio; tlio 41 Geo. 
 III. c. DO, § ;'), l»y Nvliicli an atlai'hnuMit is oivt>n in England to 
 enforce an order or decree made in liclmnl (or the ])aynient of 
 monev, a ])laintitV residing in Eng-land must,, on tiling a bill in 
 Ireland, givi' security for costs;- and althougli the same Act 
 applies to persons who are resident in Ireland commencing suits 
 in Englaml, it has been decided in the English Courts, that Avhere 
 a jdaintiff resident in Ireland files a bill hei-e, he must also give 
 security.'' It has likewise been held, that a person resident in 
 Scotland must, in like manner, give security for costs.** 
 
 Where there are co-i)laintiffs resident in England, the Court will 
 not make an order that other plaintiffs who are abroad shall give 
 security for costs ; ^ and where the ])laintiff' is abroad as a land or 
 sea officer in the service of her Majesty, he will not be ordered to 
 o-ive security ; ° and so, where he is resident abroad upon public 
 service, as an ambassador or consul, he cannot be called u])on to 
 give security." The Court of Queen's Bench, however, has re- 
 quired a Judge in the East India Company's service to give 
 security ; ^ and peers of the realm, although they are ])rivileged 
 from personal arrest, must, if they reside abroad, give security for 
 costs ; for, although such costs cannot be recovered by personal 
 process, they may by other process, if the j)lauitiff' becomes a resi- 
 dent in this country.^ And it may be stated generally that, where- 
 ever a plaintiff' is out of the jurisdiction, the defendant is entitled 
 to security for costs, unless it is distinctly shown that the i:»laintiff' 
 is exempted from his liability.^" 
 
 As a general rule, the plaintiff' in a cross-suit cannot be called 
 upon to give security for costs to the ])laintiff in the original suit, 
 on the principle that a cross-bill is, in reality, a ])ortion of the de- 
 
 G. & S. 683; 12 .Tur. 108; Hurst v. Pad- 
 wick, 12 Jur. 21; Lumley v. Hughes, 2 
 W. li. 112; Maiibv ?'. Bewicke, 8 De G., 
 M. & G. 408; 2 .Jur. N. S. 671; Oldale v. 
 Whitcher, 5 Jur. N. S. 84, V. C. K.; 
 Knight V. Corv, 9 Jur. N. S. 491, V. C. 
 W.: Dick v. Munder, 11 Jur. N. S. 819; 
 1.3 W. K. 1013, M. K. The rule extem's 
 to the next friend of a plaintift", .see Kerr 
 i;. Gillespie, 7 Beav. 269; Watts v. Kelly, 
 6 W. H. 206. 
 
 1 Moloney v. Smith, 1 M'Cl. & Y. 213. 
 
 2 Mullett «. Christmns, 2 Ball & B. 422; 
 see also Stackpoole v. Callaghan, 1 Ball & 
 B. 566. 
 
 3 Hill r. Reardon, 6 Mad. 46; Moloney 
 V. Smith, 1 M'Cl. & Y. 213; and see, as to 
 plaintiff resident in Irehuid suing here in 
 other eases, Craig v. Bolton, 2 Bro. C. C. 
 609. 
 
 * Kerr v. Duchess of Munster, Buiib. 
 ■ 35: Jixpnrle L;.tt!i, 3 De G. & S. 186. 
 
 ^ Winthrop v. Royal Exch. Ass. Co., 1 
 Dick. 282; Walker v. Easterby, 6 Ves. 
 612; Green v. Charnock, 1 Sumner's Ves. 
 396, and note (a) ; Orr v. Bowles, 1 Hodges, 
 
 23; Doc V. Roe, 1 Hodges, 315; Gilbert v. 
 Gilbert, 2 I'liige, 603; Burgess v. Gregory, 
 1 Edw. Ch. 439. This rule does not apply 
 where a husband, who has no substantial 
 interest, is co-phiintitl' with his wife. 
 Smith V. Etches, 1 H. & M. 711; 10 Jur. 
 N. S. 124. No indorser is required in 
 Alassachusetts, where any one of two or 
 more joint plaintiffs is an inhabitant of 
 the State. Genl. Sts. c. 123, § 20. 
 
 6 Evelyn v. Chippendale, 9 Sim. 497; 
 Clark V Fergussoo, 1 Giif. 184; 5 Jur. N. 
 S. 1155; Fisher v. Bunbury, Sau. & S. 
 625; Wright v. Everard, Sau. & S. 651. 
 
 7 Colebrook v. Jones, 1 Dick. 154; 
 Beames on Costs, 123. As to ambassa- 
 dors resident here, and their servants, see 
 post, p. 32. 
 
 8 riowdeii V. Campbell, 18 Jur. 910, Q. 
 B.; see Powll v. Bernard, 1 Ilogati, 144. 
 
 a Lord Aldliorough v. Burton, 2 M. & 
 K. 401, 403. 
 
 10 Lillie V. Lillie, 2 M. & K. 404. As to 
 security bv a limited company, .see ante, 
 p. 26 n. {6')
 
 PERSONS RESIDING OUT OF THE JURISDICTION. 
 
 29 
 
 fence to the original bill ; ^ but his co-defendants to the cross-bill 
 may move for such security against their plaintiff; ^ and it has been 
 held, that a bill' to restrain an action at common law is so far a de- 
 fensive proceeding as to exempt the plaintiff in Equity from the 
 liability to give secmity for costs ; ^ but, on the other hand, a de- 
 fendant in an interpleader suit being out of the jurisdiction, was 
 looked upon as plaintiff, and ordered to give security for costs ; ^ 
 and so also, a defendant who had obtained the conduct of the cause 
 has been required to give security.^ And where the right to re- 
 quire security for costs from a plaintiff out of the jurisdiction had 
 been waived, such waiver did not preclude the defendant from re- 
 quiring security from the representative of the original plaintiff, 
 by whom on his death the suit was revived, and who was also out 
 of the jurisdiction,*^ or from the plaintiff on his amending the bill 
 and stating thereby that he was out of the jurisdiction.'' 
 
 A plaintiff cannot be compelled to give security for costs, unless 
 he himself states upon his bill that he is resident out of the juris- 
 diction, or unless the fact is established by affidavit ; and the mere 
 circumstance of his having gone abroad will not be a sufficient 
 ground on which to compel him to give security, unless it is stated, 
 either by the })laintiff liimself, or upon affidavit, that he is gone 
 abroad for the purpose of residing there.^ 
 
 Whenever security is asked fof, the question arises whether the 
 party is resident abroad or not within the meaning of the rule ; 
 and the answer to that question depends, in each case, upon the 
 interpretation to be put upon the phrase "resident," or "perma- 
 nently resident " abroad. Thus, if a plaintiff goes to reside abi-oad, 
 under circumstances rendering it likely that he will remain abroad 
 for such a length of time that there is no reasonable probability 
 of his being forthcoming, when the defendant may be entitled to 
 call upon liim to pay costs in the suit, that is sufficient ; " and where 
 
 Blakeney v. Dufour, 10 Beav. 292; 2 
 De G. M. & G. 771; 17 .lur. !IS; aii<l see 
 KennawHV r. Tii[i|), 11 I?eav. 588; Druin- 
 monJ V. TillinghuTst, 15 Jur. 384, Q. B. ; 
 
 Ch. II. § 4. 
 
 Bill of inter- 
 pleader. 
 
 Defendant 
 having ob- 
 tained con- 
 duct of cause. 
 
 In case of 
 revivor, after 
 security 
 waived. 
 
 Absence of 
 plaintiff must 
 be proved, 
 and must be 
 for tlie pur- 
 pose of resid- 
 ing abroad. 
 
 Meaning of 
 
 resident 
 
 abroad. 
 
 1 Vincent r. Hunter, 5 Hare, 320; 
 M'Gregor »;. Sliaw, 2 Do G. & S. 360; 
 Slo(?gett V. V'iant, 13 Sim. 187; Wild v. 
 Murray, 18 .Jur. 802; Tynte v. Hoflge, 2 
 J. & I'i. 692; 8 .lur. N. S. 1226; Washoe 
 Mining Co. v. Ferguson, L. li. 2 Eq. 371, 
 V. C. W. 
 
 '•^ Sloggett V. Viant, 13 Sim. 187. 
 
 3 Watteini v. BiUam, 3 De G. & S. 516; 
 14 Jur. 165; Wilkinson V. Lewis, 3 Giff. 
 3'J4; 8. Jur. N. S. WH. 
 
 * Smitli I'. Ilanitnond, 6 Sim. 10, 15. 
 
 6 Mvnn /;. Hart, '.) .lur. 860, V. C K. B. 
 8 .Jiickson V. Davenport, 29 IJeav. 212; 
 
 7 Jur. N. S. 1224. 
 
 7 Wyllie V. Kllice, 11 Beav. 99; 12 
 Jur. 711; and see Stewart v. Stewart, 30 
 Beav. 822. 
 
 8 (Jreen v. Charnnck, 3 Bro. C. C. 371 ; 
 2 Cox, 284; 1 V'es. J. 3!t6; Moby t'. Ilitcli- 
 cock, 5 Ve^. 699; Edwards v. Burke, 
 • L. T. N. S. 406, V. C. K. 
 
 Stewart r. Stewart, 20 Beav. 322; Wvllie 
 V. Ellice, 11 Beav. 99; 12 Jur. 711; \Vliite 
 V. Greathead, 15 Ves. 2; 1 Smith Ch. I'r. 
 (2d Am. ed.) 555; Ayckbourn's Ch. I'r. 
 (Lond. ed. 1844) 217, 218; 1 Hoft". Ch. 
 I'r. 200; Ford v. Boucher, 1 Hodges, 58. 
 It is well settled that, to constitute one a 
 resident, his residence must be of a fixed 
 and perniancMt, and not of a mere tem- 
 porary, character, (iraham, I'Ac 505; 1 
 Smith Ch. I'r. (2d Am. cd.) 555, note {a). 
 An ab-ence of eighteen months will not 
 be regarded as nierclv temporary. Foss 
 t). Wngner, 2 Dowl.'l'. (.'. 499. Even 
 though it is sworn that the p;irty is soon 
 expected. Wright v. Black, 2 Wend. 268; 
 Gilbert v. Gilbert, 2 I'aige, 603.
 
 30 PERSONS RY WHOM A SUIT MAY BE INSTITUTED. 
 
 Cm. II. § J. a j.lMiutitV, .loniirili'.l in Sr<>ll;m<l, took rtiniisluMl l(>(li.;;ino;s in Lon- 
 ^ ^ ^ don, and tlirn lili'd his bill, it was lu'ld that ho must uivc sociu-lty 
 for oosts;' and so, whon' the ]tlaintitV wont ont of tho jurisdiction 
 on matters connortod \vi(h tho suit, he was ordered to give se- 
 curity ; but on his return tho order was discharg'od."'^ 
 Within vhat In order to entitle a defendant to require security for costs from 
 tilln tor'Su- :» l>laintitt; he must make his a])i)lication at the earliest ])ossible 
 rity should lio time after tho fact lias .come to his knowledge, and before he takes 
 '"'"''■ anv further step in the cause ; therefore, where the fact of the })lain- 
 
 tiii' being resident abroad apjiears upon the bill, he must ai)ply be- 
 fore he puts in his answer, or applies for time to do so : either of 
 which acts will be considered as a waiver of his right to the se- 
 curity.^ Filing a demurrer has, liowever, boon held not to be a 
 waiver;* and where the plahitiif amended his bill, and stated 
 thereby that he Avas out of the jurisdiction, the defendant was held 
 not to be precluded from requiring security for costs, although he 
 had some notice of the plaintiff being resident abroad ])roviously 
 to the date of the amendment.* 
 Material step If the plaintiff is not described in the bill as resident abroad, 
 in cause, after r^^^i ^\^^y defendant does not become a})))risod of that fact before he 
 
 notice, will ... , t i t .c- /v .if 
 
 deprive dc- puts in his answer, he may make the ai)]»lication alter answei , ii, 
 ri"ht'"o f iv liowever, he takes any material step in the cause after he has no- 
 for security/ tice, he cannot then apply. Where the plaintiff was described in 
 the original bill as late of the West Indies, but then of the city of 
 London, and the defendant, having answered, filed a cross-bill 
 against the plaintiff, but, exceptions having been taken to the 
 answer, put in a further answer, and then applied to the Court 
 that the ]ilaintiff in the original bill might give security for costs : 
 alleging in his affidavit, that upon ap))lying to the plaintiff's solici- 
 tor in the original suit to aj)pear for him to the cross-bill, he dis- 
 covered, for the first time, that the jilaiutiff did not reside in 
 
 1 Ainslej' v. Sims, 17 Beav. 57; 17 Jur. must make the objection Ht the first term, 
 657; and see Swanzy v. Swaiizy, 4 K. & or ho will be held to have waived it. 
 J. 237; 4 Jur. N. S. 1013. Carpenter v. Aldrich, 3 Met. 68; see Whit- 
 
 2 O'Conner v. Sierra-Nevada Co., 24 ing v. Ilollister, 2 Mass. 102; Gilbert v. 
 Beav. 435. Nantucket Bank, 5 Ma.ss. 98; Clapp v. 
 
 3 Meliorucchv r. Meliorucchv, 2 Ves. Balch, 3 Greenl. 2)6. Tiie practice in 
 S. 24; 1 Dick". 147; Craig v. Bolton, 2 New York, under the Act of that State 
 Bro. C. C. 600; Anon., 10 Ves. 287; and authorizing the defendant to require secu- 
 see Swanzy v. Swanzy, 4 K. & J. 237; 4 rily for costs, allows the apj)lication to be 
 .lur. N. S. 1013; Murrow v. Wilson, 12 m:ide at any stage of the cause, if the 
 Beav. 497; Cooper v. I'urton, 8 W. li. phiintiff wms a non-resident at the com- 
 702; and see Long v. ToUenham, 1 Ir. mcncement of the suit, and continues so. 
 Ch. Hep. •127; Atkins v. Cook, 3 Drew. Burgess v. Gregory, 1 Edw. Ch. 449. 
 694; 3 Jur. N. S. 283; Newman v. Lan- * Watteeu v. Billam, 3 De ii. & S. 516; 
 drine. 1 McCarter (X. J.), 201; Long i'. 14 Jur. 1IJ5; Goodrich v. Pendleton, 3 
 Tardy, 1 John. Ch. 202; Goodrich v Pen- Johns. Ch. 520; Priors v. White, 2 Moll, 
 dleton, 3 John. Gii. 520. In Mas.sachu- 301; Kardy v. Ileadford, 4 Moll. 464. 
 setts, though a writ, sued out bv the ^ Wyllie v. Kllice, 11 Beav. 99, 12 Jur. 
 plaintiff, who is not an inhabitant of the 911; and .sec Stewart v. Stewart, 30 Beav. 
 State, is not indor.scl as is re(|uired by 320. 
 
 Genl. Sts. c. 123, § 20, yet the defendant
 
 PERSONS RESIDING OUT OF THE JURISDICTION. 
 
 31 
 
 London, as alleged in the bill, but in Ireland ; it was held that as 
 the defendant had, in his cross-bill, stated the plaintiff to be resi- 
 dent in Ireland, and after that had answered the exceptions to his 
 answer to the original bill, he had thereby taken a step in the cause 
 after it was evident that he had notice of the plaintiff's being out 
 of the jurisdiction, and had thereby precluded himself from asking 
 for security for costs, and the motion was therefore refused.^ J^x 
 parte Sekller ^ was a petition under an Act of Parliament, author- 
 izing the Court to make an order in a summary manner upon peti- 
 tion. The petitioner being out of the jurisdiction of the Court, 
 and the respondent having answered the affidavits in support of 
 the petition, the question was whether he had thereby lost his right 
 •to require the petitioner to give security for costs : Sir Lancelot 
 Shadwell Y. C. ruled that he had not, but that he might make the 
 application on the petition coming on to be heard.^ 
 
 Where the defendant had sworn to his answer before he had 
 notice of the fact of the plaintiff being resident abroad, but, in 
 consequence of some delay in the Six Clerks' Office, the answer 
 was not filed till after the defendant had been informed of the 
 plaintiff's residence, a motion that the plaintiff might give security 
 for costs was considered too late : although the defendant himself 
 was not privy to, or aware of, the delay which had taken place in 
 filing his answer.* 
 
 If a plaintiff, after filing a bill, leave the kingdom for the purpose 
 of settling, and do actually take up his residence in foreign parts, 
 it is, in any stage of the cause, ground for an order that he shall 
 give security for costs." Such application ought to be made as 
 early as possible after the defendant has become apprised of the 
 fact ; and it is not enough to support such an application to swear 
 that the plaintiff has merely gone abroad, but the affidavit should 
 go on to say tliat he is gone to settle abroad.^ In Weeks v. Cole^ 
 an application was ma<le by the defendant, after answer, that the 
 proceedings might be stayed until the plaintiff gave security for 
 
 Ch. II. § 4. 
 
 Case of a pe- 
 titioner under 
 an Act of 
 Parliament. 
 
 Application 
 for security 
 cannot be 
 made after 
 answer 
 sworn, 
 though not 
 filed before 
 notice. 
 
 When plain- 
 tift" goes 
 abroad, after 
 bill filed: 
 
 Must give 
 .security, if he 
 goes to settle 
 or reside 
 abroad. 
 
 1 Mason v. Gardner, 2 Bro. C. C. ed. 
 Belt, 609, nolts; and see Wyllie v. Ellice, 
 11 Benv. O'J; Smith v. Castles, 1 Gray, 108. 
 
 2 12 Sim. 100. 
 
 8 See, however, Atkins v. Cook, 3 Drew. 
 694; 3.1ur. X. S. 2I-.3. 
 
 * Dyott r. Dyott, 1 Mad. 187; and, as 
 to laciies, see Wyllie v. Kllice, 11 Beav. 
 99; 12 .Jur. 711; Swanzv v. Swanzv, 4 K. 
 & .1. 237; 4 .Jur. N. S.1013; Murrow v. 
 WiJsoTi, 12 Bcav. 497. 
 
 5 Anon., 2 Dick. 775; Hoby v. Hitch- 
 cock, r> Ves. 099; Weeks v. Cole, 14 Ves. 
 618; Kerr I'. Gillespie, 11 Bcav. 99; Ken- 
 naway ». I'ripj>, 11 Beav. 588; Stewart v. 
 Stewart, 20 Beav. 323; Edwards r. Burke, 
 9 L. T. N. S. 406. V. C. K. See also Busk 
 V. Beetham, 2 Beav. 537; Blakeney v. 
 
 Dufaur, 2 I)e G., ISf. & G. 771 ; 17 .Jur. 98; 
 Newman v. I.,andrine, 1 McCarter (N. J.), 
 291. In Massachusetts, if a plaintiff in a 
 process at Law or in Equity, after its com- 
 mencement, removes from the State, the 
 Court where the suit is pending shall, on 
 the motion of any other party, require the 
 plaintilf to procure a sullicieiit imlor.ser. 
 (Jenl. Sts. c. 129, § 29; Smith v. Castles, 
 1 (Jray, 108. 
 
 •j The adidavit should also show clearly, 
 that the defendant did not know of the 
 phiintilf's removal l)efore taking the hi'*t 
 .•.tep in the cause, or the application will 
 be denied. Newman v. l^andrine, 1 Mc- 
 Carter (N. J.), 291. 
 
 7 14 Ves. 618.
 
 32 
 
 PERSONS BY WHOM A SUIT MAY BE INSTITUTED. 
 
 Cn. II. § 4. 
 
 IMaiiititTniust 
 be absolutely 
 gone. 
 
 Wliere con- 
 fined under 
 the Alien 
 Act ; 
 
 or under sen- 
 tence of trans- 
 portation lor 
 felony ; 
 
 or for a mis 
 demeanor. 
 
 Ambassa- 
 dor's servant. 
 
 Amount. 
 
 costs, on -MX ;it]iil.ivit flint the iil.iiiitilK who, wlicii the hill was filed 
 was i-L'siiliMit ill J.oikIou, had, since the answer was put in, entirely 
 ahaiidoiied the country, and gone to reside in tlie Isle of Man; 
 .iiiil Lord Kldon made the order, observing, however, that the 
 plaint ill" tmglit to havi- an opportunity of answering the affidavit; 
 the propriety of wliicli suggestion is evident from the case of 
 W/ii(t' v. (ireat/tc((d,^ where an order for the plaintiff to give se- 
 curity for costs, after ans\ver, was refused, in .consequence of an 
 affidavit which liad been filed by the plaintifl''8 solicitor, stating 
 that the plaintiff had gone to the West Indies merely for the pur- 
 pose of arranging his aftiiirs, and that he had informed the depo-. 
 nent that he intended soon to return to this country, where he had 
 left his family. 
 
 To entitle a defendant to an order that the pLaintifF may give 
 security for costs, it is necessary that the phxintifF should absolutely 
 be gone abroad : the mere intention to go will not be sufficient ; ^ 
 in a case, however, where the ])laintifl^ who was an alien enemy, 
 Avas under confinement preparatory to his removal out of the 
 country, upon a warrant by the Secretary of State under the Alien 
 Act, the proceedings were stayed until he gave security for costs, 
 although he was not actually gone out of the country.'' In pro- 
 ceedings at Common Law, where after the commencement of an 
 action, and after issue joined, the j^hiintifF has been convicted of 
 felony and ordered to be transported, the Courts have ordered se- 
 curity to be given for costs, as Avell retrospective as prospective ; * 
 and it is presumed that Courts of Equity will follow the rule at Law. 
 Where, hoAvever, the plaintiff had not been convicted of felony, 
 but only of a misdemeanor under the 52 Geo. III. c. 130, § 2, for 
 poaching, for which he was sentenced to seven years' transporta- 
 tion, and it was admitted that he had not sailed for the place of 
 transportation, but was in a penitentiary place of confinement, Sir 
 John Leach V. C. refused a motion for stay of proceedings till the 
 plaintiff had given security for costs.^ 
 
 From analogy to the course adopted where the plaintiff is resi- 
 dent out of the jurisdiction, the Court will, upon ap])lication, re- 
 strain an ambassador's servant, whose person is privileged from 
 arrest by the 7 Anne, c. 12, from proceeding with his suit until he 
 has given security for costs.^ 
 
 By the old practice, 40/. was the amount of security required 
 to answer costs by any jilaintifF who was out of the jurisdiction 
 
 1 15 Ves. 2; and see Edwards v. 
 Burke, L. T. K. .S. 406, V. C. K.; Kerr 
 V. Gille'^pie, 7 Beav. 269. 
 
 2 Adams v. Colihurst, 2 Anst. 552; 
 Willis V. Garbutt, 1 Y. & .1. 511; 1 Barb. 
 Ch. Pr. 103; Hoby v. Hitchcock, 5 Sum- 
 ner's Ves. 609. 
 
 3 Seilaz V. Hanson, 5 Ves. 261. 
 
 4 Harvey v. Jacob, 1 B. & Aid. 159; 
 Barrett n. Power.g J<:xch. 338; 18 .lur. 
 156; and see Dunn v. M'Evoy, 1 Hogan, 
 355. 
 
 5 Baddeley v. Harding, 6 Mad. 214. 
 
 fi Anon., Mos. 176; Goodwin v. Archer, 
 2 1'. Wms. 452; Adderly v. Smith, 1 
 Dick. o55.
 
 PERSONS RESromG OUT OF THE JURISDICTION. 
 
 33 
 
 of the Court, but this sura has been increased to 100^.^ Where a 
 person out of the jurisdiction of the Coui-t presents a petition to 
 have his solicitor's bills taxed, it seems that he must give security 
 for the costs of the petition, and also for the balance that may be 
 found due from him on the taxation.^ 
 
 Where it ajjpears on the bill ^ that the plaintiif is resident out 
 of the jurisdiction, an order that he give security for costs is ob- 
 tained on motion of course, or more usually on petition of course,* 
 presented to the Master of the Rolls, on production of the stamped 
 copy of the bill served on the defendant, or other authenticated 
 copy thereof. 
 
 In other cases, a special application by motion or summons^ 
 must be made. The notice of motion, or the summons,^ must be 
 served on the plaintiff's solicitor, and the application must be sup- 
 ported by evidence of the facts entitling the applicant to the 
 order. 
 
 The order directs the plaintiff to procure some sufficient person 
 on his behalf to give security, according to the course of the Court, 
 by bond to the Record and Writ Clerk in whose division the 
 cause or matter is," in the penalty of 100^., conditioned to ansAver 
 costs, in case any shall be awarded to be paid by the plaintiff; 
 and it restrains proceedings in the mean time.* 
 
 When an order of course has been obtained, it must be served 
 on the plaintiff or his solicitor; service of a special order, made on 
 notice to him, is unnecessary. 
 
 The security is given in one of the following modes : • (I.) The 
 plaintiff's solicitor prepares a bond in the terms of the order ; ^ 
 
 Ch. II. § 4. 
 
 Order for 
 security, how 
 obtained : 
 as of course ; 
 
 on special 
 application. 
 
 Form of 
 order. 
 
 1 Ord. XL. 6. The order applies to the 
 case of a plaintiff, within the jurisdiction, 
 ordered to give security. Bailey v. Gun- 
 dry, 1 Keen, 63. Tiie Court refused to 
 increase, upon an interlocutory applica- 
 tion, the amount of .'jecuritv; Barry v. 
 Jenkins, I'J L. T., N. S. 27G, V. C. M. It 
 seems, h<)wever, that in the ciise of a peti- 
 tion, the amount is still only 40/., Atkins 
 V. Cook, 3 .lur. N. S. 283, V. C. K.; I'ar- 
 tinjrton v. Keynold^ 6 W. li. 307, V. C. K. 
 In New York, the penalty of the bond was 
 required to be at least $250; but the Court 
 in a proper case mifjht enlarf^e it, and 
 might either fix the amount itself or refer 
 it to a Master. 2 Hev. Sts. N. Y. 620, § 4; 
 Fulton r. Rosevelt, 1 I'alge. 179; Massey 
 V. Gillelan, 1 I'aige, 044; Gilbert v. Gil- 
 bert, 2 Faijie, 003. 
 
 2 Anon. 12 Sim. 262; see also lie Pass- 
 more, 1 Heav. 94; Jte Dolman, 11 .Jur. 
 1095. M. K. 
 
 8 What is stated in the text as to a bill 
 suit will apply, vmlnlis mulnndis, to a 
 summons suit, petition, or other proceed- 
 ing in which security is directed to bo 
 given. 
 
 * VVyllie r. Fllico, 11 Beav. 99 ; 12 Jur. 
 711. 
 
 5 Tynte v. Hodge, 2 J. & H. 692. 
 
 6 For forms of notice and summons, see 
 Vol. III. 
 
 7 See Ord. I. 38. 
 
 . 8 For forms of orders, see Seton, 1269, 
 1270. 
 9 The bond*is in the following form : — 
 "Know all men by these presents, that 
 we, A. H., of the city of London, mer- 
 chant, and C. D., of the same place, 
 merchant, are held and (irmly bound 
 to , l""s([., in the penal sum 
 
 of , for which payment to 
 
 be.well and faithfully made, we bind our- 
 selves and each of us, our, and each of 
 our heirs, executors, and administrators, 
 firmly by these presents. Sealed with 
 our seals, &c. 
 
 "Whereas L. R., plaintiflT, has lately 
 exhibited his bill of complaint in her 
 Majesty's High Court of Chancery ajraiiist 
 II. S., defendant, touching the inntiers 
 therein contained: Now the condition of 
 this obli^'ation is such, that if the nliovo 
 bouiiden A. IL and C. D., or either of 
 them, their heirs, executors, or administra- 
 tors, <lo and shall well and truly pay, or 
 cause to be paid, all such costs as the Law 
 Court shall think lit to award to tlic de- 
 
 Service. 
 
 Securitj', in 
 what manner 
 given :
 
 34 
 
 PERSONS BY AVHOM A SUIT MAY BE INSTITUTED. 
 
 Cii. II. 5 i. 
 
 s ^^ 
 
 by boiul : 
 
 b^ subinis- 
 810U of sure- 
 ty's name ; 
 
 by payment 
 into Court, ii 
 lieu of bund. 
 
 Effect of obli- 
 gor's death, 
 or bank- 
 ruptcy. 
 
 Where all the 
 defendants do 
 not apply. 
 
 ongrossies it o\\ ]):i))('r l)c>:>ring a "Is. ChL inland rovcime stamp;* 
 I)roc'Ui-cs it to 1)0 ext'Ciitetl by the obligor or obligors; lodgvs it 
 with the Record and Writ Clerk ;^ and on the same day serves 
 notice thereof'' on the. solicitor of the defendant Avho obtained the 
 onler ; it is also advisable to serve the notice on the solicitor of 
 any co-defendants who have not a])i)lied for security;'' and the 
 security is deemed to have been given on the day the bond is 
 lodged.^ (II.) The plaintiff, instead of giving tdie bond in the first 
 instance, may serve the defendant's solicitor Avith a notice ^ of the 
 name, address, and description of the jn-oposed obligor or obligors; 
 and if no objection be made by him within two days thereafter, 
 the bond may be prepared, executed, lodged, and notified as above 
 exjilained.'' (III.) The plaintiff may apply by special motion ^ or 
 sunnnons,^ that, in lieu of giving a bond, he may pay a sum of 
 money into Court, to a separate account, to answer the costs; the 
 amount should be sufficient to cover the sum mentioned in the 
 order directing the security to be given, and the costs of bringing 
 it into Court and getting it out.^° . The usual amount is 120^. ; " no 
 evidence in support of the application is necessary, beyond the 
 production of the former order; the costs of the application are 
 made costs in the cause. The order is drawn Up and passed by 
 the registrar, and entered, and the money is paid into Court in the 
 manner hereafter explained. 
 
 One obligor is sufficient, but it is prudent to have two or more ; 
 as on the death or bankru})tcy ^'^ of the sole, or sole surviving, 
 obligor, the defendant is entitled to apply by special motion,^* or 
 summons," that a new security may be given, and for a stay of 
 proceedings in the mean time. 
 
 Where one or more of several defendants have obtained, an 
 order for security, it is advisable to extend the bond to the costs 
 of all the defendants, as otherwise the defendants who have not 
 obtained the order may afterwards apply for a further bond as to 
 their costs ; and it is presumed that, where a bond embracing the 
 
 fendant on the hearing of the .said cause 
 or otherwise, then this obligation to be 
 void, or else to remain in full force and 
 virtue. Sealed and delivered, &c." 
 
 1 If the bond is for a larger sum than 
 100/., an increased stamp of 1«. 2d. for 
 each additional 50Z. is payable; see Tilsley, 
 Dig. 218. 
 
 2 The bond should be indorsed with the 
 short title of the cause or matter, the words 
 "Bond for Security for Costs," and the 
 name, &c., of the solicitor leaving it. 
 
 3 For form of notice, see Vol. III. 
 * Braithwaite's Pr. 534. 
 
 s Ibid. 
 
 6 For form of notice, see Vol. III. 
 
 "! Brnithwaite's I'r. 533. 
 
 8 Clifl'e I'. Wilkinson, 4 Sim. 122; and 
 see Fellows v. Deere, 3 Beav. 353; lie 
 Norman, 11 Beav. 401. 
 
 Jarvis v. Shand, V. C. W. at Cham- 
 bers, 30 Jan., 1864; Reg. Lib. A. 104; 
 Merlin v. Blagrave, Seton, 1270. For 
 forms of notice of motion and summons, 
 see Vol. III. 
 
 10 Clifte V. Wilkinson, 4 Sim. 123. 
 
 11 See Cliffe -v. Wilkinson, nbi sup. ; 
 Australian Co. v. Fleming, 4 K. & J. 407. 
 In the case of a petition, it is presumed 
 60/. would be sufbcient. 
 
 i''^ Transatlantic Co. v. Pietroni, cited 
 Seton, 1269 ; Cliffe v. Wilkinson, 4 Sim. 
 122. 
 
 13 Latour?;. Holcombe, 1 Phil. 262; and 
 see Veitch v. Irving, 11 Sim. 122. 
 
 " Tynte v. Hodge, 2 .1. & H. 692. For 
 forms of notice of motion and summons, 
 see Vol. III.
 
 PERSONS RESIDING OUT OF THE JURISDICTION. 
 
 35 
 
 costs of all the defendants is lodged with the Record and Writ 
 Clerk, and notified to them, he will hold the bond on behalf of all 
 the defendants ; ^ and that a separate bond or bonds cannot after- 
 wards be required.^ Whatever number of bonds, however, may be 
 given, they all form a security for one sum only.'' 
 
 It has been decided that a solicitor ought not to be surety for 
 his client.* The bond of an incorporated society has been held 
 sufficient.^ 
 
 The defendant, on receiving notice that a bond has been lodged 
 in the first instance, may, if dissatisfied with the bond, apply by 
 special motion,'' or summons,'' that in lieu of, or in addition to, such 
 bond, the plaintiff may be ordered, within a limited time to give 
 security for costs, according to the course of the Court, or in 
 defluilt thereof, that the bill may be dismissed with costs, and that 
 in the mean time all proceedings may be stayed.^ The application 
 should be supported by affidavit showing that the obligor is not a 
 solvent person ; and may be opposed by his own affidavit,^ justify- 
 ing in double the amount named in the bond," and by other evi- 
 dence that he is a person of substance. The costs of inquirino- 
 into the circumstances of the proposed surety have been allowed." 
 
 Wliere the plaintiff in the first instance submits, for approval, 
 the name of the proposed obligor, the defendant, if he objects to 
 the person proposed, must notify his objection to the plaintiff's 
 solicitor within a reasonable time : ^^ otherwise, the plaintiff may 
 complete and lodge the bond. The plaintiff, on receiving notice 
 of the defendant's objection, must either propose another person, 
 or the person already offered must justify by affidavit i'^ in double 
 the sum for whieli he is to be bound ; " and in the latter case, it is 
 presumed the plaintiff should file the affidavit, and lodge the bond, 
 and give notice there<jf to the defendant. 
 
 If the plaintiff fail to comply with the order to give security, 
 the defendant may apply by special motion, or summons,^^ ^jj.^j- ^j^^, 
 plaintiff" give security within a limited time, or, in default, that his 
 
 Ch. II. § 4. 
 
 Plaintiff's 
 solicitor can- 
 not be surety. 
 
 Security, in 
 what manner 
 objected to: 
 
 where bond 
 entered into: 
 
 costs of 
 inquiry; 
 
 where name 
 submitted. 
 
 Course, 
 where plain- 
 titr tails to 
 comply with 
 the order. 
 
 1 See Lowndes v. Robertson, 4 Mad. 405 ; 
 and see Orl. I. 3H. 
 
 2 See, however, 1 Smith's I'r. 866; 
 Braithwalte's I'r. 032. 
 
 '•^ Lowndes v. I'obcrtson, 4 Mad. 465. 
 
 * raiifon V. I^ab<:rtouche, 1 I'hiL 265; 7 
 Jur. ',>}'.). 
 
 fi I'le^low )-. .Johnson, 1 Sm. & G., Ann. 
 20; 2 W. 1{. .3. 
 
 « I'anton v. Lubertouchc, 1 Phil. 205; 7 
 Jur. 58'J. 
 
 7 For formi of notice of motion and sum- 
 mons, see Viil. III. 
 
 8 (;i(l'lin;,'s v. (Jiddin^s, 10 IJeav. 29, 
 and the cases collected, il>. 31; and scf' 
 Denny v. Mar.", Scton, 127!), where the 
 order is Kivcn; Payne ». Little, 14 IJeav. 
 647; O'Connor v. Sierra-Nevada Co., 23 
 Beav. 608. 
 
 ^ See form in Vol. III. 
 1" See 1 Turn. & Yen. 704; 1 Grant, 444. 
 ?' Hiiinbrigge v. Mass, 3 Jur. N. S. 107, 
 
 1- See, however, Clifl'o v. Wilkinson, 4 
 Sim. 122, where .the defendant moved on 
 notice that the pliiintifl" might be ordered 
 to give security in lieu of, or in addition 
 to, the persons proposed. It is conceived, 
 however, that the uMial jiractice is, as 
 .stated in the text, to notify the objection 
 to the jilaintiff before applying to the 
 Court. For form of notice of objection, 
 see Vol. of I'ornis. 
 
 '" For form, see Vol. III. 
 
 •■• Sec 1 Turn. & Ven. 764; 1 Grant, 
 444. 
 
 "> Forformsof notice of motion and sum- 
 mons, see Vol. III.
 
 3t) 
 
 TERSONS BY WIIOJI A SUIT MAY BE INSTITUTED. 
 
 On. II 
 
 Putting bond 
 in suit : order 
 for, how ob- 
 tained ; 
 
 how sued on. 
 
 Payment o£ 
 costs out of 
 security fund, 
 how ob- 
 tained. 
 
 Discharge of 
 order, on re- 
 turn to the 
 jurisdiction. 
 
 Mil ni:iy bo dismissed with costs; and that proceedings may, ii; 
 the mean time, be stayed.^ 
 
 The chiy on whicli an order that the phiintill' do give security 
 for costs is served, and tlie time thenceforward until, and including 
 the day on which such security is given, is not to be reckoned in 
 tlie computation of time allowed a defendant to plead, answer, or 
 demur, or otherwise make his defence to the suit.^ If it becomes 
 necessary for the defendant to 2)ut the bond in suit, he must ob- 
 tain an order,' on special motion or summons, that he may be at 
 liberty to do so, and may have the bond delivered out to him for 
 that purpose, and may use the name of the Kecord and Writ 
 Clerk, the obligee, on giving him an indeninity : such indemnity 
 to be settled by the Judge, if the parties difter. The notice of 
 motion or summons* must be served on the plaintiff's solicitor; 
 and the application must be supported by ])rodu(!tion of evidence 
 of the .costs having been directed to be j)aid, and of the amount 
 and non-payment thereof. The order on such application is drawn 
 up by the Registrar ; a plain eopy of it is lodged with the Record 
 and AYrit Clerk, together with a receipt for the bond, and an 
 undertaking to in<]emnify him againSt the costs of any proceedings 
 to be taken thereon in his name ; and, if satisfied therewith, he will 
 deliver out the "bond. The receipt and iindertaking are required 
 to be signed by the defendant applying, and also by his solicitor, 
 and are usually w'ritten at the foot of the copy of the order.^ 
 
 The bond is put in suit in the Petty Bag Office, the procedure 
 in which is regulated by the 12 & 18 Vic. c. 109. 
 
 Where money has been paid into Court as security for costs, in 
 lieu of a bond, an application may be made at chambers, by sum- 
 mons,® for payment thereout of any costs ordered to be paid by 
 the plaintiff to the defendant. The summons must be served on 
 the plaintiff, and on any co-defendants interested in the fund, and 
 must be supported by evidence of such payment having been 
 directed, and of the amount payable, and by production of the 
 Accountant-General's certificate of the. fund being in Court. 
 
 If, subsequently to the order directing security for costs to be 
 given, the plaintiff becomes resident within the jurisdiction, he 
 may apply, on special motion or summons,'' that the order may be 
 discharged ; but he must pay the costs of the application.^ 
 
 1 Cooper V. Purton, 1 N. R. 468, V. C. 
 W. ; and see Giddings v. Giddings, 10 
 Beav. 20, and cases collected 10 Beav. 31 ; 
 Knight V. De Biaquiere, Sau. &S. 648; 
 Payne f. Little, 14 Beav. 647; O'Connor 
 V. .Sierra-Nevada Co., 23 Beav. 608; Ken- 
 nedy V. lidwards, 11 Jur. N. S. 1.03, V. C. 
 W.; see also Camac v. Grant, 1 Sim. 348; 
 2 Sim. 570. For circumstances under 
 which the time to give security was ex- 
 tended, see Grant v. Ingram, 20 L. T., N. 
 S. 70, V. C. M. For form of order, see 
 Seton, 1279, No. 7. 
 
 2 Ord. XXXVII. 14; see Henderson v. 
 Atkins, 7 W. R. 318, V. C K. 
 
 3 Robinson v. Brutton, 6 Beav. 147; 
 Bainbriggy v. ISIoss, 3 Jur. N. S. 107, V. 
 C. W.; Heg. Lib. 1857, A. 283. 
 
 4 For forms of notice and summons, see 
 Vol. III. 
 
 5 Braithwaite's Pr. 535, 536. For forms 
 of receipt and undertaking, see Vol. III. 
 
 For form of summons, see Vol. III. 
 T For Ibrms of notice of motion and sum- 
 mons, see Vol. III. 
 ** O'Connor v. Sierra-Nevada Co., 24
 
 PAUPERS. 
 
 87 
 
 Section V. — Paupers. 
 
 It has been before stated ^ to be a general rule, subject to very 
 few exceptions, that there is no sort or condition of persons who 
 may not sue in the Court of Chancery. Amongst the exceptions 
 to this rule, those who are in indigent circumstances are not in- 
 cluded, and any party, however poor he may be, being in other 
 respects competent, has the same right as another to commence 
 proceedings in the Court of Chancery for the assertion of his 
 claims ; and that, without being required to give any security for 
 the payment of costs to the opposite party, in case he fails in his 
 suit.- This liberality seems to be extended to the case of the next 
 friends of infants.^ Indeed, any other rule would amount to a 
 denial of justice to the children of poor persons, who might 
 become entitled to property, and yet be precluded from assert- 
 ing their right because their father, who is the proper person to be 
 their next friend, by reason of his circumstances could not be so, 
 without giving security for costs, which he might not be able to 
 procure.* With regard to the next friend of a fertxe covert., there 
 is, in this respect, a great difference in the rule ; for it has been 
 held, that the next friend of a married woman must be a person of 
 substance.; ^ because a married woman and an infant are diiferently 
 circumstanced, as the infant cannot select his own next friend, but 
 must rely upon the good offices of those who are nearest to him in 
 connection, or otherwise his riglits might go unasserted, but the 
 married woman has the power of selecting; she is, therefore, re- 
 quired to select for her next friend a person who, if her claim 
 should turn out to be unfounded, can pay to the defendant the 
 costs of the proceedings. 
 
 In consequence of the })ro visions of Stat. 11, I Ten. VII. c. 12,® 
 
 Ch. II. § 5. 
 
 Persons in 
 indigent cir- 
 cumstances 
 may sue ; 
 
 and are not 
 required to 
 give security 
 for costs. 
 
 May be next 
 friends of in- 
 fants ; 
 
 but not of 
 femes covert. 
 
 Beav. 435; Matlicws v. Cliicliester, 30 
 Beav. 135. For more on tlie subject of se- 
 curity f«>r costs, see post, Cliap. III. § 2, 
 Alien; (.'hap. VI. § 5, The Dill; Ojrilvier. 
 Ilearn, 11 Ves. COO; Worrali r. Wliite, 3 
 Jo. & Lat. 513; Hind v. Wbitmore, 2 K. 
 & .J. 458, 402. 
 
 1 Ante, p. 5. 
 
 2 Such is the lawof Miissacliu.sett.s. P'en- 
 elcy V. Maiionev, 21 I'ick. 212. This 
 right mu^t not fie abused; see Burke v. 
 Lidwell, 1 .lo. it Lat. 703, wiiere a pau()er 
 plHintiff WHS rc(|uin'd to j^ivc security: the 
 person really iiitere-teii havinj^ noniiiiMlly 
 asHigiied to tin* pauper, in order to avoid 
 liability to costs; see, however, Worrali v. 
 White's .Fo. & I.ort. 513, 516. See as to 
 re(|iiiriiii; security for costs from insolvent 
 plaintiff in a class suit, Tredwcll v. Byrch, 
 1 Y. & C Kxch. 476. 
 
 8 The tu!xt friend of a minor plaintiff 
 cannot be compelled fo give security for 
 costs. St. John V. Earl of Besborougli, 1 
 
 Ilogan, 41. The contrary was held in the 
 case of Fulton v. Rosevelt, 1 Paige, 178. 
 A prochein ami as such is not lial)le for 
 costs. Crandall ». Slaid, 11 Met. 288. 
 
 ■* See Anon., 1 Ves. Jr. p. 410 ; Squirrel v. 
 Squirrel, 2 Dick. 765; 2 P. Wms. 21)7, n.; 
 Davenport i'. Davenport, 1 S. & S. 101; 
 Murrell v. Clapliam, 8 Sini. 74; Fellows v. 
 Barrett, 1 Keen, 119; Lindsey v. Tyrrell, 
 2 De G. & .1. 7; 24 Beiiv. 124; 2 Jur.'N. S. 
 1014; iu\(\ post, Infiint Pbiinliffs. 
 
 '' Anon., 1 Atk. 570; I'ciinnitrton r. Al- 
 vin, 1 S. & S. 264; Driiian r. Mannint;, .3 
 Dr. & War. 154; .Fonesr. Fawcett, 2 Phil. 
 278; Stevens v. Williams, 1 Sim. N. S. 
 645; Wilton v. Hill, 2 l)e(i. M. & G. 807- 
 809; Mind v. Whitmore, 2 Iv. & J. 458; 
 Re Wills, 9 .hir. N. S 1225; 12 W. I{. 97, 
 V. C. S.; Klliott V. Ince, 7 De (i., M. i*t 
 (;. 475; 3 .lur. N. S.59"; Smith r. Ktclu-s, 
 IH. &M. 711; 10 .Fur. .\. S. 124; and 
 sec post, Femes Covert /'liiintij/'s. 
 
 ^ Beames on Costs, 72.
 
 38 
 
 TEUSOXS BY WHOM A SUIT MAY BE INSTITUTED. 
 
 Tii. II. 5 r. 
 
 rraituo at 
 l,a\v, 
 
 aiioptoil in 
 Kqiiily. 
 
 Persons 
 suiiiij in i-op- 
 rvsentative 
 charactiT. 
 
 Xext friend 
 cannot, in 
 general, sue 
 as pauper ; 
 
 but a married 
 woman may 
 sue infornui 
 pnuperig, 
 without a 
 next friend. 
 
 tlio prnctioo of the Courts of Law hns bocMi to admit all ])c>r.sons to 
 SIR' in forma pauperis wlio oonld swear that they were not worth 
 ;">/., except their weariiio-apparel, and the subject-matter of the 
 suit ; anil the ])ractice of the Courts of Law^ in this res])ect has been 
 adopted bv Courts of K((uity, although jjcrsons suius!; in these Courts 
 do not coinc w itliiii tin' provisions of the Act of Parliament above 
 referred to,' and, proceeding further, they have extended the relief 
 to the case of defendants. - 
 
 The privilege will not be extended to a plaintift' or a defendant 
 suing or being sued in a rei)resentative character, as executor or 
 administrator;'' but the case of a person sustaining the mixed 
 character of executor and beneficiary, is an exception to the gen- 
 eral rule; although in order to prevent any undue practice in 
 suing in forma jxiuperis, and under color of that privilege obtain- 
 ing dives costs, a special order is necessary.^ And an exception to 
 the strict application of the rule has been made, by allowing an 
 executor to j)roceed in forma pauperis, for the single purpose of 
 clearing a contempt incurred in the cause.^ 
 
 It is said, that a person filling the character of next friend can- 
 not sue in forma paup>eris,^' although, as we have seen before, the 
 poverty of a next friend of an infant is no ground for dismissing 
 him ; and, until recently, some uncertainty prevailed as to the prac- 
 tice, when a married woman could not obtain a substantial next 
 friend to sue on her behalf; '' but it has now been determined, that 
 she may, on an ex parte motion,^ supported by affidavit that she is 
 unable to procure any substantial person to act as her next friend,^ 
 obtain an order authorizing her to institute and prosecute a suit ; ^^ 
 
 1 See Story Eq. PI. § 50 ; 1 Harr. Ch. chein ami. Fulton v. Eosevelt, 1 Paige, 
 Pr. by Newl. 38i), 3D0; 1 Smith Ch. Pr. 
 (2d Am. eil.) 550 tl seq. ; 1 Hoff. Ch. Pr. 
 67 et seq. ; Isiiard v. Cazeaux, 1 Paige, 39. 
 
 2 See post, Chap. IV., § 7, Pauptr De- 
 fendants. 
 
 8 Paradice v. Shepherd, 1 Dick. 136; 
 Beames on Costs, 79, App. No. 21 ; Old- 
 lield V Cobbett, 1 Phil. 613; 10 Jur. 2; 
 Fowler v. Davies, 16 Sim. 182; 12 Jur. 
 321; St. Victor v. Devereux, 6 Beav. 584; 
 8 Jur. 26. 
 
 * Thompson v. Thompson, H. T. 1824, 
 cited 1 Turn. & Ven. 513; and see Rogers 
 V. Hooper, 1 VV. K. 474, V. C. K.; Kverson 
 V. Miitthews, 3 W. K. 159, V. C. W. ; Park- 
 inson V. Chambers, ib. 34, V. C. W. As 
 to the aflidavit in such a case, see Martin 
 V. Whitmore, W. N. (1869) 42; 17 W. K. 
 809 L C 
 
 fi'oidfield V. Cobbett, 1 Coll. 169. 
 
 « Anon., 1 Ves. J.. 410; see Robertson v. 
 Robertson, 3 Paige, 387. In New York, it 
 has been held, that an infant, who lias no 
 means of indemnify ing a respon-ilde person 
 for co.sts, will be permitted to .«ue by his 
 next friend in forma pnuptris. The Court 
 will, however, in the first instance, see that 
 there is probable cau^e for the proceeding, 
 and will appoint a proper person as pro- 
 
 chein ami. 
 178. 
 ■? See Dowden v. Hook, 8 Beav. 299. 
 
 8 For form of motion paper, see Vol. III. 
 
 9 For form of afli'lavit, see Vol. III. 
 
 10 lie Foster, 18 Beav. 525; Wellesleyu. 
 Wellesley, 16 Sim. 1 ; 1 De G., M. & G. 501 ; 
 Wellesley v. Mornington, 18 Jur. 552, V. 
 C. K. ; Re Lancaster, 18 J ur. 229, L. C. & L. 
 JJ.; Crouch v. Waller, 4 De G. & J. 43; 
 5 Jur. N. S. 326; Ee Barnes, 10 W. R. 
 464, V. C. S. ; Smith v. Etches, 1 II. & M. 
 711; 10 Jur. N. S. 124; 3 N. R. 467; and 
 see, A'x parte, Hakewiil, 3 De G., M. & 
 G. 116. Tlie decision in Page v. Page, 16 
 Beav. 588, where such an order was dis- 
 charged is overruled by tliese cases; but 
 see Caldicoft v. Baker, 13 W. R. 449, V. C. 
 K. The order is not as of course, Coul- 
 sting V. Coulsting, 8 Be.iv. 463; 9 Jur. 
 587; see Ward v. Ward, 2 Dev. Ch. 553; 
 Hunt u. Booth, 1 Freem. (!h. 215. Upon 
 a proper application, a wife may be per- 
 mitted to file a bill against her husband, 
 f(jr a separation, Hi forma pauperis. But 
 this will not be done until the Court has 
 ascertained by the rcjiort of a Master, that 
 she has ])robable cause for filing such a bill. 
 Robertson v. Robertson, 3 Paige, 387.
 
 PAUPERS. 
 
 39 
 
 to carry on proceedings after decree;^ or to appeal- without a 
 next friend, i?i forma pauperis. 
 
 It seems also that, in a proper case, an infant will be permitted 
 to sue by a next friend in forma pauperis, on an ex parte motion, 
 supported by affidavit that the infant cannot get any substantial 
 person to act as next friend.^ 
 
 A husband and wife may obtain an order of course to sue in 
 forma paiqyeris, in respect of the wife's reversionary interest ;* and 
 where a woman was ordered to be examined j^i'O interesse suo, 
 respecting a claim set up by her to some lands taken under a se- 
 questration, but was unable from poverty to make out or support 
 her right, liberty was given to her to do so in forma jyauperis.^ 
 
 Proceedings under the Trustee Relief Act® and the Infont 
 Custody Act'' may be prosecuted i?i forma ^Muperis ; and so also 
 may claims in a suit by persons who are not parties ; ® but in these 
 cases, the order is made on application by ex parte motion,^ sup- 
 ported by affidavit, and is not of course. 
 
 A plaintiff may be admitted to sue as a pauper, upon the usual 
 affidavit, at any time after the bill has been filed, or summons 
 issued ; ^* but he will be liable to all the costs incurred before his 
 admission," and may be attached for the non-payment of costs 
 previously ordered to be paid, without being first dispaupered.^^ 
 
 It seems doubtful, whether, after a dismissal of a former suit, a 
 plaintiff will be permitted to sue again for the same matter in 
 forma pauperis, without paying the costs of the first suit ; ^* but 
 the circumstance that the suit is a second suit for the same matter 
 as a former suit, in Avhich the plaintiff had likewise sued as a 
 pauper, is no ground of objection to the second suit, unless it can 
 be justly characterized as very vexatious." 
 
 1 D'Oechsner v. Scott, 24 Beav. 239. 
 
 2 Crouch V. Waller, 4 De G. & .J. 43; 5 
 Jur. N. S. 326; and i-ce Miirtin v. Wliit- 
 more, W. N. (1869) 42; 17 W. It. 809, L. 
 C. 
 
 8 Lindsey v. Tyrell, 2 De G. & J. 7 ; 24 
 Beav. 124; 3 Jur. N. S. 1014. 
 
 •> I'itt V. I'itt, 1 Sm. & G. App. 14; 17 
 Jur. 571. 
 6 James v. Dore, 2 Dick. 788. 
 
 6 He Money, 13 lieav. 109; the Act is 
 10& 11 Vic. c. 96. 
 
 7 lit I lake will, 3 De G., M. & G., 116; 
 the Act is 2 & 3 Vic. c. 54 ; and see post, 
 Vol. II., Infant C'lstixly Act. 
 
 " See Re Sliard, I'artirifjton v. Ueynolds, 
 cited Seton, 1272, where the order is given ; 
 and see in other cases Az parte Ilakewill, 
 3 De G., M. & G. 116; Kx parte Fry, 1 Dr. 
 & S. 318. 
 
 9 Not by petition, see Seton, 1272; for 
 form of motion paper, see Vol III. 
 
 1" .Sec I'arkinson v. Chainliers, 3 W. K. 
 34, V. C. W.; Braithwaite'8 Pr. 662; but 
 
 Ch. II. §5. 
 
 Infant may 
 sue, by his 
 next friend, 
 in forma 
 pauperis, 
 semble. 
 
 l^aiikrupt 
 may petition 
 in forma 
 pauperis ; 
 and so a 
 husband and 
 wife ; 
 or party 
 examined jpro 
 interesse suo ; 
 
 or party pro- 
 ceeding un- 
 der Trustee 
 Relief Act. 
 Other 
 instances. 
 
 Plaintiff may 
 be admitted 
 to sue iri 
 forma pau 
 peris at any 
 time, but lia- 
 bility for 
 antecedent 
 costs con- 
 tinues. 
 
 Doubtful if 
 plaintiff may 
 sue in forma 
 piauperis, 
 after dismis- 
 sal of former 
 ;-uit for same 
 matter; 
 
 a married woman may !>))ply before bill, if 
 the draft bill has been settled and signed 
 by counsel. VVellesley v. Moinington, 18 
 Jur. 552; Re Barnes, 10 \V. K. 464, V. 
 C. S. 
 
 11 Mos. 68; and see Ballard v. Catling, 2 
 Keen, 006; Church v. Marsli. 2 Hare, 652; 
 8 .Jur. 54; Smitli v. I'jiwson, 2 De G. & S. 
 490; I'rince Albert i'. Strange, 2 De G. & 
 S. 652, 718; 13 Jur. 507. 
 
 12 Davenport v. Davenport, 1 Phil. 124; 
 Brown v. Story, 1 Paige, 588. See, how- 
 ever, liennett v. Chudleigh, 2 Y. & C. C. 
 C. 164; Snowball v. Dixon, 2 De G. & 
 S. 9. 
 
 13 Corbett v. Corbett, 16 Ves. 407, 410, 
 412; Brook v. Aicock, 20 March, 1S34, V. 
 C. E., cited 1 Smith's Cli. Pr. 555; l)ut 
 see Filtoii v. Earl of .Macclesfield, 1 Vern. 
 204; and see Cbitty'K Arch. 1292; Hawes 
 V. Johnson, 1 Y. & J. 10. 
 
 " Wild V. Ilobson, 2 V. & B. 105, 112; 
 see Hrook v. Aicock, and KIsam v. All- 
 cock, cited 1 Smith's Gli. Pr. 555.
 
 Ofsiiinj;; 
 in foniid pau- 
 peris: 
 
 Petition for 
 adinissiou ; 
 
 Certificate of 
 oouusel ; 
 
 Affidavit of 
 poverty ; 
 
 must be 
 sworn by the 
 party him- 
 self. 
 
 Admission. 
 
 TEKSONS BY AVIIOJI A SUIT MAY BE INSTITUTED. 
 
 A i)niii)or may appeal,^ ami where a party has, in any stage of 
 tlio suit, obtaineil the common order forliis admission as a pauper, 
 no special order is required to iiiMblc him to appeal witliout pay- 
 ment of the dejiosit;'- but where he has not been already admitted 
 as a i)aui)er, an order Avhich can only be made by the Court of 
 Appeal, authorizing the appeal in forma jMitperis and Avithout 
 payment of the deposit, is necessary ; ^ and it seems that a certifi- 
 cate of counsel that there are special and strong grounds for the 
 apjieal may be required.^ 
 
 In order to be admitted to sue in forma pauperis, the plaintiff 
 must present a petition to the Master of the Rolls, containing a 
 short statement of his case, and of the proceedings, if any, which 
 have been had in the cause, and praying to be admitted to sue in 
 forma pauperis, and that a counsel and a solicitor may be assigned 
 him.^ 
 
 This petition must be underwritten by a certificate signed by 
 counsel,® that he conceives the case to be proper for relief in this 
 Court;'' and must be supported by an afiidavit, SAVorn by the 
 plaintiff, that he is not Avorth the sum of 5/., his' wearing-a])parel 
 and the subject-matter of the suit only excepted.* The 'meaning 
 of the afiidavit is, that the plaintiff has not 5?., in the world avail- 
 able for the prosecution of the suit ; and if he can make an afiida- 
 vit Avith truth in that sense, the omission to set forth the details 
 of his means, and the circumstances Avhich render them imavailable, 
 is not such an omission of material facts as will induce the Court, 
 on that ground alone, to discharge the order.^ 
 
 This afiidavit must be sA\orn by the party himself; and in a case 
 in Avhich it afterwards ap})eared that the afiidavit had been sworn 
 by a third person, the party was dispaupered.^" 
 
 The petition and certificate, and an oflice copy of the plaintiflfs 
 
 1 Bland v. Bland, 2 J. & W. 402; cmtra, 
 Taylor v. Boucliier, 2 Dick. 504; Bolton v. 
 Gardner, 3 I'aifre, 273; and see j/ost, (Ihap. 
 XXXII., § 2, Jithearings and Appeals m 
 the Court of Chancery. 
 
 2 Drennan v. Andrew, L. R. 1 Ch. Ap. 
 300, L. C. ; and see cases cited, ib. 301, n. 
 
 (7)- 
 
 8 Seton, 1271; see also Clarke v. AVy- 
 burn, 12 Jur. 167, L. C. ; Heaps v. Com- 
 missioners of Churches, ib., n. ; L. R. 1 
 Ch. Ap. 301, n. (7); Bradberry v. Brooke, 
 25L.J. Ch. 570; 4 AV. K. 699, L. .)J.; 
 Crouch V. AValler, 4 De G. & J. 43; 6 Jur. 
 N. S. 326; Grim wood v. Shave, 5 AV. U. 
 482, L. C For form of order, see Seton, 
 1271, No. 7. The order is obtainable on 
 ex parte motion. 
 
 4 Grim wood v. Shave, 5 W. R. 482, L. 
 C; and see L. R. 1 Ch. Ap. 301, n. (7). 
 
 6 But a plaintiff /emt covert cannot 
 obtain the order as of course, and it must 
 therefore be applied for on an ex parte 
 
 motion in the Court to which the cause is 
 attached. Coulsting v. Coulsting, 8 Beav. 
 463; Ee Lancaster, 18 Jur. 229, L. C. & L. 
 JJ.; Ee Foster, 18 Beav. 526. For form 
 of motion paper, see A^ol. III. 
 
 6 As to the duty of counsel for a pauper, 
 see lies v. Flower, 6 L. T. N. S. 843, L. C. 
 
 7 Ord. VII. 8. For forms of petition, 
 certificate, and afiidavit, see Vol. HI. 
 
 8 The afiidavit must not except the 
 just debts of the plaintiff, as appears at 
 one time to have been allowed : per Sir 
 J. L. Knight Bruce, V. C, in Perry v. 
 AValker, 1 ('oil. 233; Beames on Costs, 80; 
 and see form of affidavit, Vol. HI. 
 
 y Dresser ». Morton, 2 I'hil. 280; and 
 see, as to the poverty which entitles a 
 person to sue in fwma pauperis, Allen v. 
 Mcpherson, 5 Beav. 409, 485; Boddington 
 V. Woodley, 5 Beav. 555; Goldsmith v. 
 Goldsmith,' 5 Hare, 125; Perry v. AValker, 
 1 Coll. 233, 236. 
 i« AVilkinson v. Belsher, 2 Bro. C. C 272.
 
 PAUPERS. 41 
 
 affida\^t, and usually also a copy of the bill, are lodged with the Cn. II. § 5. 
 Under-Secretary of the Rolls, who, if he sees no cause against it, "^ ^ 
 
 draws up and enters an order, by which the petitioner is admitted 
 to sue in forma pauperis^ and a counsel and solicitor are assigned 
 to act on his behalf.^ 
 
 The order should be served upon the opposite party as soon as Service of 
 pos'sible ; for a plaintiff admitted to sue in forma pauperis has ^'^^^~- 
 been ordered to pay dives costs to the defendant, in respect of a step 
 in the cause taken before ser^^ce of the order ; ^ it seems, however, 
 that there is a discretion in the Court in such cases, and that the 
 order to sue in forma jxnqyeris is not necessarily inoperative in all 
 cases until service.^ Th^ order should also be lodged with the 
 Record and Writ Clerk, for entry in his books ; * and must be pro- 
 duced to the officers of the Court, whenever required by them. 
 
 If an order has been obtained as of course upon a suppression 
 of material facts, it will be discharged on an application by motion 
 on notice.^ 
 
 After admittance, no fee, profit, or reward is to be taken of the Conse- 
 pauperby any counsel or solicitor, for the despatch of his business, admission! 
 whilst it depends in Court, and he continues in forma pauperis ; 
 nor is any agreement to be made for any recompense or reward 
 afterwards ; and any person offending is to be deemed guilty of a 
 contempt of Court ; and the party admitted giving any such fee, 
 or making any such agreement, is to be thenceforth dispaupered, 
 and not be admitted again in that suit to sue in forma pauperis.^ 
 
 The counsel or solicitor assigned by the Court to assist a person Counsel 
 admitted in forma pjaiiperis^ either to sue or defend, may not refuse ^vheu ass^^'n- 
 so to do, unless he satisfies the Judge who granted the admittance c'l; may not 
 with some good reason for his unwillingness.'^ 
 
 When a pauper has had counsel assigned to him, he cannot be Pauper can- 
 not be hea 
 in [jerson. 
 
 heard in person.^ ""^ ^'' •''^'^'"^^ 
 
 No j)rocess of contempt will \w issued, at the instance of any 
 person suing or defending in forma pauperis^ until it be signed by 
 his solicitor in the suit. And all notices of motion served, or pe- Notices &c. 
 titions presented onbehalf of any ]»erson admitted to sue or defend '"'"'t^ '"^ 
 
 • /• X • / i f> .1 T 1 ,. 1 • ,. . ^ signed bj' his 
 
 %n jorrna panptriH (excejtt tor the discharge 01 his solicitor) must solicitor. 
 be signed by his solicitor ; and such solicitor should take care that 
 no such process be taken out, and that no such notice or petition 
 be served, needlessly, or for vexation, ])ut ujton just and good 
 grounds." 
 
 1 For form of order, see Seton, 1271, < IJraitliwaite's I'r. 563. 
 
 where an order Imd been obtaiuerl on an C See Nowcll v. Whitaker, C Rcav. 407. 
 
 ex /v/Wf application, tliat the plaintiff bo *> Ord. Vl[. 9. 
 
 permitted to prosecute in furmn iiintjierh^ "! Ord. VII. 10. 
 
 the same wa.s vacated witii costs. Isnard 8 Parkinson v. llanbury, 4 l)e G., M. & 
 
 V. Cii7.eaux, 1 I'liige, .30. G. 508. 
 
 2 BflllHrd V. Catling, 2 Keen, 606; see » Ord. VII. 11; Perry v. Walker, 2 Y. 
 al.'io Smith v. Paw.son, 2 De 0. & S. 490. & C. C. C. 655; 4 neav.452; and see Ord. 
 
 8ChurchD. Marsh, 2Hare,052; 8Jur.54. III. 10, and Brown r. Dawson, 2 Ilogan,
 
 42 
 
 rERSONS nv -whom a suit may be instituted. 
 
 C.I. II. § r>. 
 
 Cost of suit, 
 where jmiipor 
 unsuciosstul ; 
 
 ■where suc- 
 cessful. 
 
 Of scandal. 
 
 Of dispauper- 
 ing: 
 
 on the ground 
 of property ; 
 
 A |>,iuiH'r may move to dismiss his bill without costs/ but the 
 motion must not bo made ex parte ;- and a pauper cannot amend 
 liis bill by striking out detiMidants, except on })ayment of their 
 costs.^ It' a cause goes against a pauper at the hearing, he is not 
 ordered to pay costs to the defendant ; it is said, however, that he 
 may be punished personally, although .the practice of inflicting 
 such punishment appears to be now obsolete.* 
 
 It seems to have been formerly considered, that where a plaintift" 
 sues in for/nd pauperis, and has a decree in his favor with costs, 
 he will only be entitled to such costs as he has been actually out 
 of pocket ; ^ but it is now settled, that the costs of a successful 
 paujier are in the discretion of the Cortrt ; * and where costs are 
 ordered to be jiaid to a party suing or defending in forma, pauperis, 
 such costs are to be taxed as dives costs, unless the Court otherwise 
 directs.' Where an appeal against a decree in favor of a person 
 suing in forma pauperis Avas dismissed without costs, the deposit 
 was ordered to be paid out to the pauper.^ 
 
 It was determined as long ago as the time of Tothill, that a 
 pauper must pay the costs of scandal in his answer." 
 
 As a party may be admitted to sue in forma pauperis at any 
 time during the suit, so if, at any time, it is made to appear to the 
 Court that he is of such ability that he ought not to be allowed to sue 
 or to continue to sue in forma pavperis, the Court will dispauper 
 him ;^** therefore, where it was shown to the Court that a paui)er was 
 in possession of the property in question, the Court ordered hinx to be 
 dispaupered, though the defendant had a verdict at Law, and might 
 
 76, as to the liabilities of a pauper's solici- 
 tor. 
 
 1 Although in Pearson v. Belsher, 3 
 Bro. C. C S7, it is stated that the dismis- 
 sal is only to be made on payment of costs, 
 the order was drawn up witiiout costs; see 
 Keg. Lib. 17S9, IJ. 524, entered Pearson v. 
 Wolfe; 3 Bro. C. C. 87, ed. Belt, n. 1; 
 Beames on Costs, 88. 
 
 2 Parkinson v. Hanbury, 4 De G., M. & 
 G. 508; and see Wilkinson v. Belsher, 2 
 Bro. C. C. 272. 
 
 3 Wilkinson v. Belsher, 2 Bro. C. C. 
 272. 
 
 4'Har. 391. 
 
 6 Angell V. Smith, Prec. Cha. 220; see 
 Williams r. Wilkins 3 .John. Ch. 65. 
 
 '' Scatclimer v. Foulkard, 1 Eq. Ca. Ab. 
 125, pi. 3; H;iutton v. Hager, cited in An- 
 gell f. Smith, I'rec. Cha. 220; Wallop v. 
 Warl)urton,2 Cox, 409; Kattravv- George, 
 16 Ves. 233; Chui-ch v. Marsh, 2 Hare, 
 655; 8 .Jur. 54; Koljerts v. Lloyd, 2 Beav. 
 376; StMtford v- Higginbotham, 2 Keen, 
 147; Williams v. Wilkin*, 3 .John. Ch. 65. 
 A plaintiflf' suing in forma pauperis, and re- 
 covering a legacy against executors, when 
 there was no unreasonable delay on their 
 part, ought not to recover dives costs, but 
 
 only the actual expenses of the suit, to be 
 paid by the executors out of the assets. 
 Williams v. Wilkins, 3 John. Cli. 65. 
 
 ■? Ord. XL. 5; see Beames on Costs, 77; 
 and for cases since the order, Wellesley v. 
 Welleslev, 1 De G.,M. & G. 501 ; Morning- 
 ton V. Keen, 3 W. R. 429, 24 L. J. Ch. 
 400, V. C. W.; Phillips v Phillips, 4 De 
 G., F. & J. 208, 220; 8 Jur. N. S. 145, L. 
 C. If a party, suing in forma pmiperis, 
 amends his bill after answer under the 
 common order, it must be upon the pay- 
 ment of costs, as in ordinary suits; and if 
 he has a meritorious claim to amend with- 
 out costs, he must apply to the (Jourt by 
 special motion uiion afiidavit and notice to 
 the adverse party. Richardson v. Rich- 
 ardson, 5 Paige, 58. 
 
 8 Phillips V. Phillips, 4 De G., F. & J. 
 208, 220; 8 Jur. N. S. 145, L. C. 
 
 9 Per Lord Kblon, in Rattray v. George, 
 16 Ves. 234; Tothill, 237. 
 
 10 Romilly v. Grint,2 Beav. 186; Mather 
 V. Shelmefdine, 7 Beav. 267; Butler v. 
 Gardener, 12 Beav. 525; Perrv v. Walker, 
 1 Coll. 229, 236; 8 Jur. 680; Goldsmith v. 
 Goldsmith, 5 Hare, 125; Daintree v. 
 Haynes, 12 Jur. 594, V. C. E.
 
 PAUPERS. 
 
 43 
 
 conduct. 
 
 take a writ of possession at any time ; ^ and so also where a plain- Cn. II. § 6. 
 tLffhad offered by her bill to redeem a mortgage if any thing should 
 be found due on it, she was ordered to be dispaupered ; - it has 
 been decided that an officer upon half pay (which is not alienable) 
 could not proceed in forma pauperis^ notwithstanding he had 
 tak6n the benefit of the Insolvent Act.^ The application to dis- 
 pauper is made by sj^eciaL motion, on notice ; * and should be made 
 without delay.^ 
 
 At Common Law, if a pauper act vexatiously or improperly in for vexatious 
 the conduct of the action, the Court will order him to be dis- 
 paupered : ® and in like manner, in Courts of Equity, if a party who 
 is admitted to sue in forma pauperis be guilty of vexatious con- 
 duct in the suit,' or of vexatious delays, or make improper motions, 
 he will be dispaupered, thoi^gh the Court always proceeds very 
 tenderly in such points ; * and it has been said that a pauper is 
 liable to be committed if he files an improper bill, or otherwise he 
 might be guilty of great ojjpression.^ The foct that the pauper 
 has been supplied with money by a charitable subscription for the 
 puqjose of assisting him in the conduct of the suit, although it 
 may afford ground for impeachment as maintenance, is no ground 
 upon which he can be deprived of his right to sue as a pauper in 
 Equity.^'* 
 
 Where an is.sue is directed in a j^auper's suit, he must be ad- 
 mitted as a pauper in the Court in which the issue is to be tried, 
 or otherwise he cannot proceed in it, in forma pauperis}^ In a 
 case, however, where the jdaintiff, a pauper, claimed as heir-at-law, 
 and the defendant claimed under a will and deed, which were dis- 
 puted, the bill was retained, with liberty to the plaintiff to bring 
 an action ; and the tenants were ordered to pay the plaintiff 150?. 
 to enable him to go to trial.^^ 
 
 An order admitting a party to sue or defend in forma pauperis^ Office fees. 
 while in force, exempts the pauper from the jiayment of any fees 
 
 Where issue 
 is directed. 
 
 1 Wyatt's V. \\. 321. See Spencer v. 
 Bryant, 11 Ves. 49; see al«o Taprell i'. Tay- 
 lor, 9 IJeav. 493; Butler v. Gardener, 12 
 Beav. 525. 
 
 2 Fowler r. Davies, 16 Sim. 182; 12 .lur. 
 321. 
 
 8 Bod'linKton v. Woadley, 5 Beav. 555. 
 
 * For form of notice, see Vol. III. 
 
 '' See St. Victor c. Dcvereu.v, 9 Jur. 
 519, L. C.; I'arkinson v. Ilanbury, 4 Ue 
 (;., .M. & <;. 508. 
 
 6 2 Chitty'x Arch. 1280. 
 
 7 \Vii(,'nor r. Mcars, 3 Sim. 127; and 
 sec I'erry v. Walker, 1 Coll. 229; 8 .lur. 
 080. 
 
 8 Whitelocke v. Baker, 13 Ves. 611; 
 Wnfjner v. .MeiirH, 3 Sim. 12"; Uaintree v. 
 Ilavne«, 12 .lur. 59'1, V. V, F. ; ami see 
 Terry v. Walker, 1 Coll. 229; 8 Jur. 080; 
 
 Burrv, Port Co. v. Bowser, 5 W. R. 325, 
 V. C. K. ; Steele v. Jlott, 20 Wend. 679. 
 A p:irtv suinj^ as a poor person is charge- 
 able with the costs of setting; a=ide hispro- 
 ceedinj^s for irrej^ularity, nr of a contempt 
 (Murphy r. OMis, 2 Moll. 475), or of ex- 
 puii/,'iiif; impertinent or scandalous matter, 
 in the s;ini(! manner as other suitors. Rich- 
 ardson t'. Richardson, 5 I'ai^e, 58. A pau- 
 per's solicitor may be made to pay the 
 costs of any irregular proceeding. Brown 
 V. Dawson, 2 Iloiiiin, 76. 
 
 » Pearson v. Belchier, 4 Ves. 627, 630. 
 
 1" Corbett y. CorbeU, 10 Ves. 407, 412. 
 
 " Gibson v. McCart}', Ca. t. Hardwicke, 
 311. 
 
 '■■^ I'erishal v. Squire, 1 Dick. 31 ; Beames 
 on Costs, 76; A pp. 22; but sec Nye V. 
 Maule, 4 M. & C. 342, 345.
 
 44 
 
 PERSONS BY AVIIOM A SUIT MAY BE INSTITUTED. 
 
 Oil. II. $ ■>. 
 ^ ^ 
 
 Charjros for 
 copies deliv- 
 ered to piiii- 
 pcrs. 
 
 Charges for 
 copies deliv- 
 ered bj' pau- 
 pers. 
 
 in the otVu'i's of tlir Court, o.\ci'i)t for oillci' t-ojtics made therein: 
 for such copies, a charge of one penny-halfpenny jier fi)ho will be 
 made.^ Copies of documents which the ]iau])er may himself make 
 will be marked as office copies, without charge.'^ The charges for 
 copies of pleadings, and other proceedings and documents de- 
 livered, under the 3d, 4th, and 5th rules of the 36th General Order 
 of the Court,' to a jierson a(hnittcd to sue or defetid in forma 
 2.Hii(j-K'rfs, or to liis solicitor, by or on behalf of any other party, are 
 to be at the rate of one penny-halfpenny per folio ; but if such per- 
 son shall become entitled to receive dives costs, the charges for 
 such coi>ies are to be at the rate of fourpence per folio ; and noth- 
 ing is to be allowed, on taxation, in respect of such charges, until 
 such person, or his solicitor, shall have paid or tendered to the so- 
 licitor or party by whom such copies, were delivered, the additional 
 tAvopence-halfpenny per folio. But this proviso is not to apply to 
 any copy which shall have been furnished by the party himself, 
 who is directed to pay the costs, and not by his solicitor.* 
 
 The charges for copies delivered by a person admitted to sue or 
 defend in forma pauperis, other than those delivered by his so- 
 licitor, are to be at the rate of one ])enny-halfpenny per folio.^ 
 
 1 Braithwaite'sPr. 563; and seeWvatt'.s 
 P. R. 320; Beames's Orders, 216, n. (143). 
 
 2 Braithwaite's Pr. 563. 
 
 3 These rules relate to copies of docu- 
 ments not made or delivered by the officers 
 
 of the Court, but by the solicitors of other 
 parties in the cause. 
 
 4 Regul. to Ord. Part TV. 2. 
 
 fi Kegul. to Ord. Part IV. 2, 3.. For 
 more on the subject of Paupers, see post, 
 Chap. IV. § 7.
 
 CHAPTER III. 
 
 SUITS BY PERSONS WHO ARE UNDER DISABILITY. 
 
 Section I. — Generally. 
 
 The general rule that all persons, of whatever rank or condition, 
 and whether they have a natural or only political character, are 
 capable of instituting suits in Equity, is liable, as has been stated,^ 
 to a few exceptions. What these exceptions are will be the subject 
 of -the present Chapter. 
 
 The disabilities by which a person maybe prevented from suing, Disqualifica- 
 may be divided into two sorts : namely, such as are absolute, and, 
 during the time they last, eifectually deprive the party of the right 
 to assert his claim ; and such as are qualified, and merely deprive 
 him of the power of suing without the assistance of some other 
 party to maintain the suit on his behalf. Of the first sort, are the 
 disabiUties which arise from Alienage, Outlaxory^ Attainder^ Con- 
 viction of felony, and Bankruptcy ; of the second sort, are those 
 which arise from Infancy, Coverture, Idiotcy, and Lunacy. 
 
 Exceptions to 
 the general 
 rule. 
 
 tions from 
 suing are 
 either abso- 
 lute, or quali- 
 fied. 
 
 SECTioif II. — Aliens. 
 
 With respect to aliens in general, it is to be observed that, al- Aliens: 
 though by the old law no alien, whether friend or enemy, could sue 
 in the Queen's Courts, yet the necessity of trade has gradually In what cases 
 done away with the too rigorous restraints and discouragements ^^'^^y may sue. 
 which formerly existed; and it is now clear that, for a mere per- Alien friend 
 sonal demand, an alien born, provided he be not an alien enemy, 
 may sue in the Courts of this country.^ This rule is clearly rec- 
 ognized in liamJcissenseat v. Barker,'^ where a bill was filed against 
 
 may sue for 
 a personal 
 demaud. 
 
 1 Ante, p. 5. 
 
 2 The disabilities of outhiwry and ex- 
 communication are either wholly unknown 
 in America, or, if known at all, are of very 
 limited local existence. Story Va\. I'I. § 
 61. See lioosevelt v. Cromniclin, l^i .foim. 
 253; Oilman r. Scliiilt/., r, S. & K. .'Jij. 
 It has lately bcpri held in Kii;:;ljitid, that a 
 nun is iieilher civilly dead, nor uiidiT any 
 disability arising; from duress or undue in 
 fluence. lie Metcalfe, 2 Do G., ,(. ^: S. 
 122; 10 .Jur. N. S. 287, F>. .1.1. ; ih. 221, M. 
 R. ; and see as to civil death, and the sta- 
 tus of a nun, the cases there cited, and 
 Evans r. C.issidv. 11 Irish Kq. 243; Hiake 
 V. Blake, 4 Irisli Kq. 349. 
 
 8 Story Eq. Fl. §§ 61, 52. An alien 
 
 friend is entitled to the benefit, ami subject 
 to the action, of the insolvent laws of the 
 State where he resides. .Iiidd v. Law- 
 rence, 1 Gush. 3. In the Courts of the 
 United States he is entitled to claim the 
 same protection of his rights as a citizen 
 is. 'I'avlor r. Ciirpenter, 3 Story, 458; S. 
 (;. 2 Woo.l. vVc iM. 1; Cortes v. Holbrook, 
 2 Sandf Ch. 580; Hyani y. Stevens, 4 Edw. 
 Ch. Hi). An alien does not lose his riglit 
 to sue in the (Jom-ts of the United States, 
 bv residiiKi in one of the States of the 
 L'nion. iireodlove v. Nicolet, 7 I'eters, , 
 413. 
 
 •• 1 Atk. 51; sec also I'isiiiii v. Lawson, 
 Hing. N. C. 90.
 
 46 
 
 SUITS RY PERSONS WHO ARE UNDER DISABILITF. 
 
 On. III. §2. 
 
 ^— — Y — ^ 
 
 Copvrijxht of 
 alien, when 
 protected. 
 
 Right of an 
 alien, at Com- 
 mon Law, to 
 sue. 
 
 oxocutors for :in aci'ount, by :i ])l;iintilV avIio 1i:i(1 been oni])loyotl by 
 tbo tostiitor in liidiii :is liis b;uiy:iii or broker, niid ;i j)l(';i was ])ut 
 in on tlio ground tliat 11r> plaint iiV was an alien born and an infidel, 
 not of the Christian faith, and upon ;i cross-bill incapable of being 
 examined upon oath, and therefore disqualified from suing here ; 
 but the Court overruled the plea without aroument; observing, 
 that the plaintiff's was a mere personal dem.'iiid, and that it was 
 extremely clear that he might bring a bill in this Court. It was a 
 matter of doubt to what extent the Court wouhl protect the copy- 
 right of a foreigner ; ^ it lias, hoAvever, now been decided, that 
 where a foreign author OAves a tem})orary allegiance to the Crown 
 of England, by residence in this country,'- or any part of the 
 British dominions,^ at the time of his fii-st publication of the Avork, 
 not ha\'ing previously pubhslied it elscAvhere, he is an author wdthin 
 the protection of the Copyright Acts. By several recent Acts', a 
 system of international copyright has noAV been established.* 
 
 The right of an alien to sue in the Courts of this country was, 
 at Common Law, confined to cases arising upon personal demands ; 
 for an alien might trade and traffic, and buy and sell, and therefore 
 he W' as considered to be of ability to liave personal actions ; but 
 he could not maintain either real or mixed actions : ^ because an 
 alien, though in amity, Avas incapable of holding i-eal property.® 
 
 1 Delondre v. Shaw, 2 Sim. 237; Bentle^' 
 V. Foster, 10 Sim. 329; Buxton v. .James, 
 5 De G. & S. 80; 2 Kent (11th ed.), 373, 
 n. (b). 
 
 2 .JeflFerysu. Boosej', 4 H. L. Cas- 815; 
 
 I Jur. N. S. 615, overruling S. C. 4 Exch. 
 145; in Excii. Ch., 6 E.vch. 580. 
 
 3 Low V. lloutledge, L. R. 1 Ch. Ap. 42; 
 
 II Jur. N. .S. 939, L. .J.I.; affirmed, S. C. 
 noni. L. R. 3 H. L 100; Low v. Ward, 
 L. R. 6 Eq. 415, V. C. G. 
 
 4 7 & 8 Vic. c. 12, iind 15 & 16 Vic. c. 
 12; Cassell r. Stiff, 2 K. & .1. 279; Buxton 
 V. James, 5 De G. & S. 80; 10 ,Jur. 15; 
 Ollendorfi' r. Hhick, 4 De G. & S. 209; 14 
 Jur. 1080; Wood v. Boosev, L. R. 2 Q. B. 
 340; affirmed L. R. 3 Q.' B. 223, Exch. 
 Ch.; AVood v. Cliart, Wood v. Wood, W. 
 N. (1870) 118; 18 W. R. 822, V. C. J.; L. 
 R. io Eq. 193; and see as to an alien's 
 Cop3Tight in designs, 24 & 25 Vic. c. 73. 
 
 6 Co. Lift. 129 b. 
 
 6 Co. Lift. 2 b. The title of an alien 
 friend to hind purchased b3', or devised to 
 him, is good against everybody but the 
 Stiite, arid can only be divested by otiice 
 found, or by some act done bv the S'ate to 
 acquire possession. 2 Kent (11th ed.), 54 
 and 55 and note; M'Creerv v. Alleiuler, 4 
 Har. & .ALIL 409; (iroves v. (Gordon, 1 
 Conn. Ill; Marshiill v. Onirad, 5 <Jall, 
 364; University ». Miller. .3 Dev. 191; Doe 
 V. Horniblea, 2 Hayw. 37; I'uchanan v. 
 Deshon, 1 ILir. & <i. 280, Scanlan v. 
 Wright, 13 Rick. 523; Jenkins v. Noel, 3 
 Stew. 60; Doe v. Robertson, 11 Wheat. 
 322; Dudley v. Grayson, 6 Munroe, 260; 
 
 Jackson v. Adams, 7 Wend. 367 ; Brad- 
 street V. Supervisors, &c. 13 Wend. 546; 
 
 1 Jarman, AVills (2d Am. ed.), 102 [59] 
 note (1); Wilbur v. Tobey, 16 Pick. 179; 
 Foss V. Crisp, 20 Pick. 124; Waugh v. 
 Riley, 8 Met. 295; People v. Conklin, 2 
 Hill, 67; Sugden V. & P. (7th Am. ed.) 
 884 and notes. Tlie disability of aliens to 
 hold real estate has been partially removed 
 in some States, and wholly in others. See 
 
 2 Kent (11th ed.) 53, 54 note; Genl. Sts. 
 of Massachusetts, ch. 90, § 38; Rouche v. 
 Williamson, 3 lied. (N. C.) 146; Duke of 
 Richmond v. Miln, 17 Louis. 312. In 
 States where an alien cannot hold real es- 
 tate, of course he c.mnot maintain eject- 
 ment; but if he is in po.^session of real 
 propert}', he may maintain trespass, quai-e 
 clausumfre(jit. Bayes v. Ho<;g, 1 llayw. 
 485. But an alien's right to sustain an 
 action for the recover^' of land in case of 
 an intrusion by an individual was main- 
 tained in M'Cieery v. Allender, 4 Har. & 
 M'll. 409; Bradstreet v. Supervisors, &c., 
 13 Wend. 546; Waugh v. Riley, 8 Met. 
 295; see also Scanlan v. Wright, 13 Pick. 
 523; Jackson v Britton, 4 Wend. 507; 
 Jackson Kxe Dem. Cidverhouse v. Beach, 
 1 .lohn. Cas 399; Gansevoort v. Lunn, 3 
 id. 109; Orser v. Hoag, 3 Mill, 79. An 
 alien, who holds land under a special law 
 of a State, ina^' maintain a suit in the Cir- 
 cuit Court of the United States relating to 
 such land. B(ina|>arte v. Camden, &;c. 
 Railroad Co., 1 Bald. 316; see Common- 
 wealth V. Andre, 3 Pick. 224.
 
 ALIENS. 47 
 
 By the statiite, intituled " An Act to amend the Laws relating Ch. III. § 2.^ 
 to Aliens," section 3, it was enacted, " that every person now born ^ ■ 
 
 or hereafter to be born out of her Maiesty's dominions, of a mother -^^K'lA'^'^' 'L 
 
 Ou o Vie. c. oo. 
 
 being a natural-born subject of the United Kingdom, shall be capa- 
 ble of taking to him, his heii-s, executors, or administrators, any 
 estate, real or personal, by 'devise or purchase, or inheritance of 
 succession." By section 4 it was enacted, " that from and after 
 the passing of this Act, every alien, being the subject of a friendly 
 State, shall and may take and hold by purchase, gift, bequest, rep- 
 resentation or otherwise, every species of personal property, except 
 chattels real, as fully and effectually to all intents and purposes, 
 and with the same rights, remedies, exemptions, privileges, and 
 • capacities, as if he Avere a natural-born subject of the United 
 Kingdom." And sectiqn 5 enacted " that every alien now residing 
 in, or who shall hereafter come to reside in any part of the United 
 Kingdom, and being the subject of a friendly State, may by grant, 
 lease, demise, assignment, bequest, representation or otherwise, 
 take and hold any lands, houses, or other tenements, for the pur- 
 pose of residence or of occupation by him or her, or his or her ser- 
 vants, or for the purpose of any business, trade, or manuficture, 
 for any term of years not exceeding twenty-one years, as fully and 
 effectually to all intents and purposes, and with the same rights, 
 remedies, exemptions, and privileges, except the right to vote at 
 elections for members of Parliament, as if he were a natural-born 
 subject of tlie United Kingdom." 
 
 But .now, by the recent "Naturalization Act, 1870," ^ section 2, 
 "Real and jiersonal property of every description may be taken, 
 acquired, held, and disposed of by an alien in the same manner in 
 all respects as by a natural-born British subject ; and a title to real 
 and personal jiroperty of every description may be derived 
 through, from, or in succession to an alien, in the same manner in 
 all respects as through, from, or in succession, to a natural-born 
 British subject ; Provided, (1.) That this section shall not confer 
 any right on an alien to hold real })roperty situate out of the 
 United Kingdom, and sliall not qualify an alien for any office or 
 for any municipal, jiarliamentary, or other franchise; (2.) That 
 this section shall not entitle an alien to any right or privilege as a 
 British subject, except such rights and privileges in respect of pi-op- 
 erty as are hereby exi)ressly given to him ; (H.) That this section 
 shall not affect any estate or interest in real or ]»orsonal pro])erty 
 to which any person has or may become entitled, I'itlier mediately 
 
 J 33 & 34 Vic. c. 14; by § 10 power is 83) are repcnlod. See as to the riKlifs of 
 
 given to the Lcfrislatures of Hriti'-h po.s- (k'scenihiiits of Hiitisli subjects wlio liad 
 
 sessions ti) fjive thi' privilct;(!s of iiaturali- si'tlh'd abroiul before tlie Act; Kitc.h v. 
 
 zatiori witliin llicir own limitsf !)}• § 12, Wclicr, 5 Hiirr% XA\ See also Count Do 
 
 regulations are made as to evidence under Wall's case, (! Moore 1'. (J. 2Ji); 12 .Fur. 
 
 the Act; and by § 18, tlie t'ornier Alien Ho; Harrow v. Wadkin, 24 IJcav. 327; 
 
 Acts (7 & 8 Vic. c. 66, and 10 & 11 Vic. c. Kittson r. Stordy, 3 Sm. & G. 230.
 
 48 
 
 SUITS IJY PKUSONS WHO ARE UNDER DISABILTTT. 
 
 On. 111. § J. 
 
 In suits l>e- 
 twotMi alions, 
 upon coii- 
 tnicts in ii 
 foreign conn- 
 try; 
 
 the decision 
 is pn-erned 
 bv tiie law 
 ot" tliat 
 country. 
 
 Ne exeal 
 Regno : 
 
 Or imiiu'diatoly, in possession or ox])oc't:mcy, in pursuance of any 
 disposition nuule before the passing of this Act,^ or in pursuance 
 oi' any devohition by hnv on the death of any person dying before 
 the passing of this Act." 
 
 Although an alien may maintain a suit in this country, yet, if 
 one alien sues another upon a contract entered into in a foreign 
 country, it would be contrary to all the principles which guide the 
 Courts of one country in deciding upon contracts made in another, 
 to give a greater effect to the contract than it would have by the 
 laws of the country where it took place ; therefore, where a French 
 emigrant, resident in this country, obtained by duress securities 
 from another French emigrant, for the payment of a demand, al- 
 leged to be due from him under an obligation entered into in 
 France as security for another, and for which, according to the 
 laws of France, his person could not be affected : Lord llosslyn 
 refused to dissolve an injunction which had been obtained to re- 
 strain an action at Law upon those securities, and intimated a very 
 strong oi)inion, that when the case came on for hearing he should 
 in all probability set the securities aside.^ Ui)on the same ])rinci- 
 ple, it was held that the Court will not grant a writ JVe exeat 
 Jiegno, where it appears that the transactions between the parties 
 were entered into upon the faith of having justice in the place 
 where they respectively resided ; * though, in the case before him, 
 he considered that the parties did not deal upon any such under- 
 
 In De La Vega v. Vianna, 1 B. & Ad. 
 284, it was held that one foreigner inaj' 
 arrest another in Knghmd Cor adeLt which 
 accrued in I'ortugnl while both resided 
 there, though the Portuguese law does 
 not allow ot arrest for debt. In the above 
 case. Lord Tenterden C. .1., remarked, 
 that a person suing in Engliind must take 
 the law as he finds it; he cannot, by vir- 
 tue of anj' regulation in his own country, 
 enjoy greater advantages than other 
 suitors in England, and he ought not 
 therefore to be deprived of any superior 
 advantage which the law of this country 
 may confer. He is to have the same 
 rights which all British subjects are enti- 
 tled to. The remedy upon contracts is 
 governed by the law of the place where 
 the parties pursue it. See also Whitte- 
 more v. Adams, 2 Cowen, 626; Willing v. 
 Consefjua, 1 Peters (J. C. 317; Contois v. 
 Carpentier, 1 Wash. C. C. 376; Wyman 
 V. Southward, 10 Wheat. 1; Don v. Lipp- 
 man, 5 CI. & Fin. 1; Hinkley v. Moreau, 
 3 Mason, 88; Titus v. Ilobart, 5 Mason, 
 378; Atwater v. Townsend, 4 Conn. 47; 
 Story Conf Laws, §§ 568-571. The same 
 doctrine was maintained in Smith v. Spi- 
 nolla, 2 John. 198. See also Peck v. 
 Ilozier, 14 John. 346; Sicard v. Whale, 11 
 John. 194;; Talleyrand v. Boulanger, 3 
 Sumner's Ves. 447, note (a). 
 
 3 Bobertson «. Wilkie, Amb. 177; and 
 see De Carriere v. De Calofine, 4 Ves. 
 590. 
 
 1 This was the 12th of May, 1870. 
 
 2 Talleyrand v. Boulanger, 3 Ves. 447, 
 450. Suits are maintainable and are con- 
 stantly maintained between foreigners 
 where eitlier of tliem is within the terri- 
 tory of the State in which the suit is 
 brought, bf'th in England and America. 
 Story Conf. Laws, § 542. 
 
 In Brinley v. Aver}', Kirby, 25, it was 
 held that a plea in abatement, that both 
 parties are aliens, and that the contract 
 declared on was made in a foreign coun- 
 trj% and was to have been performed there, 
 is good; and in Dumoussaj' v. Delevit, 3 
 Har. & J. 151, an action of replevin was 
 held abatable, on a plea that both parties 
 were aliens, and the Court therefore had 
 not jurisdiction. But in Barrell v. Benja- 
 min, 15 Mass. 354, the Court were inclined 
 to tlie opinion that one foreigner may sue 
 another, who is transiently within' the 
 jurisdiction of the Courts of a State, upon 
 a contract made between them in a foreign 
 country. In construing such contracts, 
 the hiw of the place where they are made 
 will be administered. lb. p. 357; Story 
 Conf. Laws, § 270 et seq. ; De La Vega v. 
 Vianna. 1 B. & Ad. 284. But the rem- 
 edy will be applied according to the law 
 of the |)Iace where it is pursued. A con- 
 troversy between two foreigners, who are 
 private citizens, is not cognizable in the 
 Courts of the United States under the 
 Constitution. See Barrell v. Benjamin, 15 
 Mass. 357.
 
 ALIENS. 49 
 
 Standing, and therefore refused to discharge the writ without Cn. ill. § 2. 
 security ; if, however, one of the parties is an Englishman, and ' "^ 
 they were both resident in different countries at the time the con- when it will 
 tract was entered into, the Court A^^ll not discharge a JVe exeat ob- chargedf' 
 tained by the party resident in this country, against the other who 
 had casually come hither on the ground that, by the law of the 
 country of which the other was a native, he would be exempt from 
 arrest for a debt of the same nature.^ It is, however, to be ob- •not usually 
 served, that with respect to writs of JVe exeat Eegno, Lord bet™ 
 Northington is distinctly stated to have thought, that this process foreigners, 
 ought not to be granted between foreigners ; - and in De Oarriere 
 V. De Calonne^ Lord Rosslyn said, it is very delicate to interfere except when 
 as against foreigners, whose occasions or misfortunes have brought v'^r/cielr/^ 
 them here, by an application of this writ to them ; and that it 
 would be a necessary term, that it should be simply a case of 
 equity, affording no ground to sue at laAv. 
 
 With respect to alien enemies, the law is clearly settled by Alien ene- 
 numerous cases, that an ahen enemy not resident here, or resident "ie'^itlesf 
 here without the permission of the gOA^ernment, cannot institute resident here 
 any suit whatever in this country, whether at law or in equity, license!^" * 
 either for real or personal property, until both nations be at peace ; * 
 and it is said, that the question whether he is in amity or not, 
 should be tried by the record, viz., by the production of the pro- 
 clamation of Avar. 5 It is to be observed, that in declaring Avar, or under the 
 the Queen, in her proclamation, usually qualifies it, by permitting of wir!^^'^*'°" 
 the subjects of the enemy resident here to continue so, as long as 
 they peaceably demean themselves ; so that such persons are to be 
 deemed in effect alien friends ; "^ therefore, Avhcre an alien enemy 
 has lived here peaceably a long time, or has come here for refuge 
 and i)rotection, the Court Avill discountenance pleas of alienage 
 against himJ It seems, also, that a prisoner of war may sue upon Prisoners of 
 a contract entered into by him during the time of his captivity.^ '*^''"'- 
 
 1 Flack V. Holm, 1 J. & W 405,413, v Wvatt's P. It. 327; Story Eq. PI. 
 418- § 52; ftradwelU Weeks, IJolin.Ch. 208; 
 
 2 4 Ves. 585. llussell v. Skipwith, G Hinn. 241. 
 
 8 4 Ves. 590. 8 Spnrcnburgli v. IJaiiiiatvne, I Bos. & 
 
 < Co. Litt. 129 1).; G T. U. 23; 1 Bos. P. 103; Maria v. Hall, 2 Bos. & P. 236; 
 
 &P. 163; 3 Bos. & P. 113; Alcinous v. 1 TMuiit. 33; Crawford v. The William 
 
 Nigren, 4 El. & Bl. 217; S. C. wmi. Alec- Penn, 3 Wash. C. C. 484. 
 
 nius t;. Nygren, 1 .lur. N. S. 16; Storv . In nianv cases, an alien encmv is enti- 
 
 \a\. I'I. §§ 61-54; .Muiiiford v. Mumfonl, tied even to sue for his own riglits; as, 
 
 I (iail. 366; Bradwell >•. Weeks, 1 .lohn. when he is permitted to remain in the 
 Ch. 208; (Jrawford y. Wm. Penn, 1 Peters country, or is hrought here as a prisoner 
 C. C. 106; Wilcox r. Henry, 1 Dall. Oil; of war. H(f is recognized in our (joints in 
 Bell V. Ciiapmnn, 10 Jolm. 1^3; Hepl.urn's his character as executor; and in ail cases 
 case, 3 Bhind, 95; Criswold r. Wadding- his property is protected and held in trust 
 ton, 16 .John. 438; Clemonston v. Bictsig, for liini until the return of i)eace. Bnid- 
 
 II Excli. 135, 141, note; Dean w Nelson, well v. Weeks, 1 John. Cli. 20N; Bell i'. 
 Sup Ct. U.S. 10 Am. Law Keg. N. S. 221, Chapman, 10 John. |K3; Clarke i'. Morev, 
 and the learned note and autlioritics cited 10 .lohn. GO; Hutchinson v. Brock, 11 
 at the end of that case. Ma.ss. 119; Parkinson r. Weiilwortfi, 11 
 
 \ Co. Litt. hy Ilnrg. & ]$ut. 129 b. n. 2. Mass. 2C; Kussell v. Skip>wth, 6 Binu. 241. 
 6 Co. I-itt. by Harg. & But. 129 b. n. 3.
 
 50 
 
 SUITS BY PEKSONS ^tllO ARE UNDER DISABILITY. 
 
 Cll. 111. $ J. 
 
 Kosiilfiii 
 trador in an 
 enemy's 
 country i-nii- 
 not sue : 
 
 althoiiL;)) n 
 ucutral, 
 
 or a consul. 
 
 or a British 
 subject, if 
 trading with- 
 out a license ; 
 
 though resid- 
 ing there in a 
 diplomatic 
 capacity. 
 
 British sub- 
 jects 
 
 trading with 
 licences, must 
 confine their 
 trade to that 
 licensed. 
 
 In what cases 
 suits can be 
 maintained 
 by others, 
 relating to 
 the property 
 of enemies. 
 
 TIk' more t'imuiistniu-e of ri'sidiiiL;; in :i fonML;ii c'oiiiiify, tlu'gov- 
 iMiiiiii'iit of which is at war with this country, and of carrying on 
 trade thoro, is sutliciont to constitute any person an alien enemy, 
 even tliough hi' would not otherwise be considered in that charac- 
 ter." Thus, a subject of a neutral State, resident in a hostile State 
 in the character of consul of the neutral State, will, if he carry on 
 trade in the hostile country, be considered as an alien eneiny, and 
 distiualified from suing in the Courts of this country; although, 
 had he merely resided there in his diplomatic character, he Avould 
 not have been disqualified.^ And even if a British subject, resid- 
 ing in a foreign State which is at war with this country, cairy on 
 trade there without a license from the government of this country, 
 his trading will be considered such an adherence to the. Queen's 
 eneniies as will incapacitate him from maintaining a suit here ; ^ 
 and although he be an ambassador, or other representative of the 
 Crown residing in a hostile State, yet if he carry on trade in such 
 State without a license, he will deprive himself of the right to sue 
 in the municipal courts of this country, because he is lending him- 
 self to the purposes of the enemy by furnishing him with resources.* 
 
 If, hoAvever, a subject of this country, i-esiding in a hostile 
 country, have a license from this government to trade, he will not 
 incur any disability as long as he confines himself to the trade 
 authorized by such license ; ^ but if a person having a license to 
 reside in a hostile country, and to export corn or other specified 
 articles to this country, were to use such license beyond its ex- 
 pression, for the purpose of dealing in articles to Avhich it has no 
 relation, he cannot maintain that such dealing is not an enemy's 
 dealing.^ 
 
 The disability to maintain a suit on account of alienage, extends 
 to all cases in which an alien enemy is interested, although his 
 name does not appear in the transaction,'^ thus, it has been held, 
 that an action at law cannot be maintained upon a policy of in- 
 surance upon the property of an alien enemy, even though the 
 action is brought in the name of an English agent,^ and though it 
 is alleged that the alien is indebted to the agent in moi-e money 
 
 1 1 Kent (llth ed.), 76 et seq. ; Case of 
 the Sloop Cliester, 2 Dallas, 41; Murray v. 
 Schooner lietsey, 2 Cninch, 64; Maley 
 V. Shattuck, 3 "Cranch, 488; Livingston 
 V. Marj'land Ins. Co., 7 Crancli, 506; The 
 Venus, 8 Cranch, 253; Tlie Francis, 8 
 Cranch, 363; Ciiitty Gout. (lOth Am. ed.) 
 198, 199; Society v. Wheeler, 2 Gall. 
 105. 
 
 2 Albrecht v. Sussraan, 2 V. & B. 323, 
 327. 
 
 8 M'Connell v. Hector. 3 Bos. & P. 113; 
 O'Mealey v. Wilson, 1 Camp. 482, but he 
 mav lawfully provide for the necessities of 
 Ei:gli.«hmen"detained abroad, and may, on 
 the return of peace, enforce contracts made 
 
 for such purposes. Antoine v. Morshead 
 6 Taunt. 237 ; Duhammel v. Pickering, 2 
 Stark. 92. 
 
 4 £x parte Baolehole, 18 Ves. 525, 528. 
 
 6 ExjMrie, Baglehole, 18 Ves. 529; see 
 Crawford v- The William Peun, 3 Wash. 
 C. C. 484. 
 
 6 Ex parte, Baglehole, 18 Ves. 529. 
 
 ' Crawford v. The William I'enn, 1 Pe- 
 ters C. C. 106. It is no objection, after 
 the war, that the suit was originally 
 brought by the pl.iintitf as trustee for an 
 alien enemy. Ilameisley v. Lambert, 2 
 John. Ch. 508. 
 
 8 Bristow V. Towers, 6 T. R. 35.
 
 ALIENS." 51 
 
 than the vahie covered by the policy.-^ Where, however,' a certain Ch. hi. § 2. 
 trading of an alien enemy {viz., for specie and goods to be brought ^" "^ "^ 
 from the enemy's country in his ships into our colonial ports) was 
 licensed by the King's authority, it Avas held, that an insurance on 
 the enemy's ship, as well as on the cargo, was in furtherance of the 
 same policy, which allowed the granting of the licenses to authorize 
 the trade ; and that effect ought, therefore, to be given to the or- 
 dinary means of indemnity, by which that trade (from the contin- 
 uance of which the public must be supposed to derive benefit) may 
 be best promoted and secured ; the Court of King's Bench, there- 
 fore, determined, that an action brought by an English agent to • 
 recover the amount of the insurance on the ship, might be main- 
 tained, notwithstanding the ship belonged to an enemy.^ It was 
 held, however, that although in such a case the agent might sue, 
 because the King's license Jiad purged the trust in respect to him 
 of all its injurious consequences to the public interest, yet that it 
 had not the same effect of removing the personal disability of the 
 principal, so as to enable him to sue in his own name.^ 
 
 The disability to sue under Avhich an alien enemy lies is personal. Alien ene- 
 and takes away from the Queen's enemies the benefit of her Courts, fig biiis of 
 whether for the puriiose of immediate relief or of giving assistance discovery, 
 
 . . . . , , . qucere? 
 
 in obtaming that relief elsewhere ; therefore, an alien enemy can- 
 not institute a suit for the purpose of obtaining a discovery, even 
 though lie seek no further relief'* 
 
 The right of an alien to maintain a suit relating to a contract is Right of alien 
 only suspended by war if the contract was entered into previously ^"emj- to sue 
 to the commencement of the war, and it may be enforced upon pcnded dur- 
 the restoration of peace.^ Upon this j^rinciple, in bankruptcy, the "'»^^'"' 
 proof of a debt due to an alien enemy, upon a contract made 
 before the war broke out, was admitted, reserving the dividend.'^ 
 But no suit can be sustained to enforce an obligation arising upon as to con- 
 a contract entered into with an alien enemy during war, such con- ;,uo*beibre'-^ 
 tract being absolutely voidJ And where a policy, of insurance, 
 
 1 lirandon v. Nesbitt, C T. U. 23. John. Ch. 206. And in Massacliusetts 
 
 2 Kensington r. Iiif^iis, 8 East, 273, 288. the statutes of limitMtion of personal ac- 
 
 3 Kensington v. Infjiis, 8 East, 273. tions are expressly suspendetl in favor of 
 * Dauhif^nv v. Davallon, 2 Anst. 462; an alien iliirnifj the war. Genl. fSts. ch. 
 
 but see Albrccht v. Su.ssman, 2 V. & 1$. 155, § 8. See Hopkirk i'. Bell, 3 Craiich, 
 
 324,32(5,327; Story Eq. I'l. § 53, n. (4). 454. A plea, that the ])laintitr was an 
 
 An alien friend, it is well known, may alien enemy, is sutlicientiy answered bv a 
 
 maintain a i>ill (or discovery in aid of a treaty of (x-Mce, made alter tlie jilea wis 
 
 suit in a forfv^ii eountrv. 2 Story l'".(|. filed. .lohii'-oii r. lliirrisoii, 6 Litt. 226. 
 
 Jiir. § 14'j5; .NlilelKdl r. Smith, 1 I'aige, The Court will take notiee of the fact, 
 
 287; Story Eq. I'l. § 53 in note. tlioiifjli the jdniitilf do not reply it. /hid. 
 
 '> Alcinous V. Ni^ren, 4 El. & Bl. 217; Treaties witli foreit,'ii nations are part of 
 
 S. C iioin. Alceniiis v. Nyfjren, 1 Jur. the law of tiie hiiid, of wliicii the Courts 
 
 N. S. 16; Cliittv Coiitr. ("loih .\ni. ed.) arc l)oiind to take notice;, liahv r. Diibciis, 
 
 199; Elindt r. W'titers, 15 East, 260; Hum- 1 HIiickt. 255. 
 
 ilton V. Katon, 2 Marsh, (l. C. 1; ISuehan- •< Kx purte Honssmakcr, 13 Ves. 71. 
 
 nn e. Curry, 10 .lolin. 137; Clemontson v. ' Kx parte IJousMiiaker, 13 Ves. 71; and 
 
 Blessig, li I';.\cli. 135. 141, note; Storv see Exposito i'. Ihiwden, in l^x. Cii. 7 El. 
 En. I'l. § 64; Ilamcrsley r. I.,ninbert, 2 & 151. 770; 6 W. K. 732, as to the dissnlu- 
 JoliD. Ch. 608; liradwell v. Weeks, 1 tion of controcts by a declaration of war.
 
 52 
 
 SUITS RY PF.KSONS WHO ARE UNDKR DISABILlTr. 
 
 Cii. 111. § -2. 
 
 but not as to 
 contracts 
 entered into 
 duriusi war. 
 
 ^V^len objec- 
 tion may be 
 taken. 
 
 Effect of a 
 war upon s\ 
 suit already 
 commenced. 
 
 Plea of alien 
 enemy. 
 
 on bc'h:ilf of Fiviu'h subjects was outored into just l>otbre the 
 couunonconiont of the war, upon whifh a loss avms sustained in 
 consequence of capture by a British ship, after hostihties had coni- 
 nienced, the proof of a debt arising from such jiolicy, which had 
 been a«bnitted by tlie connnissioner in bankruptcy, was ordered to 
 be expunged.^ Tlie principle upon which the last mentioned case 
 Avas decided is fully stated by Lord Ellenborouii'lt in Brandon v. 
 CwUng^- \\\\Q\-Q it is laid doAvn by his lonlship as a rule, that every 
 insm-ance on alien property by a British siibject must be under- 
 stood with this implied exception, " that it shall not extend to cover 
 any loss hapi)ening during the existence of hostilities between the 
 respective countries of the assured and assurer." 
 
 A defence on the ground that the i)laintiif is an alien enemy, 
 should be made by plea before answer. Thus, where a bill was 
 filed by a plaintiff residing in a foreign country at war with this, 
 for a commission to examine witnesses there, and the defendant 
 put in an answer, an application for an order for the commission 
 was granted: though it was objected that the Court ought not to 
 grant a commission to an enemy's. country, the Court being, as it 
 seems, of opinion that the objection had come too late.^ 
 
 It does not appear, from any case in the books, what would be 
 the effect of a war breaking out between the country of the plain- 
 tiff and this country, after the commencement of the suit ; but, 
 from analogy to what is stated by Lord Chief Baron Gilbert to be 
 the practice of the Court with regard to outlawry, namely, that if 
 it is not pleaded it may be shown to the Court on the hearing, as 
 a peremptory matter against the plaintiff's demands, because it 
 shows the right to the thing to be in the Queen,* it is probable 
 that the Court would, under such circumstances, stay the pro- 
 ceedings.^ 
 
 It appears to be the essence of a plea that the plaintiff is an alien 
 enemy, to state that the plaintiff was born out of the liegance of 
 the Queen, and within the liegance of a State at war with us; but 
 where the plea contains words which amount in substance to an 
 allegation of these facts, it will be sufficient, although they are not 
 averred with the same strictness that is required by the rules of 
 law. Thus, where a plea averred that the plaintiffs were French- 
 
 1 Ex parte Lee, 13 Ves. 64. 
 
 2 4 Kast, 410. 
 
 8 Caliill V. Shepherd, 12 Ves. 335. 
 
 4 Gilb. For. Kom. 53. 
 
 5 Story Eq. PI. § 54. If the plaintiff 
 becomes an alien enemy after the com- 
 mencement of the suit, the defendant may 
 plead it. Bell v. Chapman, 10 John. 183. 
 But as the disability is merely temporary, 
 if the suit i.s not abated during the war, 
 it is no objection after the war, that the 
 plaintiff was an alien enemy wiieii the 
 suit was brought. Hamersiey v. Lambert, 
 
 2 John. Ch. 508. The effect of the plea 
 of alien enemy is not to defeat the process 
 entirely, but to suspend it. Hutchinson v. 
 Brock, 11 Mass. 119; Parkinson v. Went- 
 worth, 11 Mass. 26; Levine v. Taylor, 12 
 Mass. 8; Hamersiey v. Lambert, 2 John. 
 Ch. 508. 
 
 Where the plaintiff becomes an alien 
 enemy after judgment, the Court will 
 not, on motion", stav or set aside the exe- 
 cution. Buckley v. Lyttle, 10 John. 117. 
 See Owens v. Hanney, 9 Cranch, 180.
 
 PERSOXS ATTAINTED OR CONVICTED. 
 
 53 
 
 Ch. III. § 3. 
 ^— — Y — — ^ 
 
 War with this 
 country judi- 
 cialh' no- 
 ticed ; secits, a 
 war between 
 foreign coun- 
 tries/ 
 
 Security for 
 Aists. 
 
 men, aliens, and enemies of the King, the Court hekl, that the plea 
 was sufficient : the word alien being a legal term, importing born 
 out of the liegance of the King, and within the liegance of some 
 other State ; and the words. Frenchmen and enemies of the King, 
 showing that they were the subjects of a State at war with this 
 country.^ 
 
 It is to 'be observed, that the Courts here take notice, without 
 proof, of a war in which this country is engaged ; but a war be- 
 tween foreign countries must be jj roved. ^ 
 
 In all cases of a person permitted to sue in equity, if he state 
 himself in his bill to be resident abroad, or if it comes to the knowl- 
 edge of the defendant that he is actually so, the defendant may 
 obtain an order of the Court that the plaintiif shall, before he pro- 
 ceeds further, give security to answer to the defendant the costs of 
 the suit.' The practice wjth respect to this rule has been before 
 stated ; * and is apjilicable to aliens and foreigners, as well as to 
 natural born subjects.^ It seems that an alien resident in this 
 country will not be required to give security for costs, although 
 his residence here is merely temporary, and for the purpose, of 
 carrying on the suit." 
 
 ^ Section III. — Persons attainted or convicted. 
 
 Fomierly, after judgment of outlawry, or of death, in a Attainder 
 prosecution for treason or felony, the criqiinal Avas said to be and forfeiture 
 attainted, attinctus^ or blackened,' and became incapable of law.*^' ormer 
 maintaining a suit in any Court of justice, either civil or 
 criminal, unless for the purpose of procuring a reversal of his 
 attainder ; ^ he also incurred a forfeiture of all his property, real Conse- 
 and personal,^ and was disqualified from holding any which he quencesof 
 might in future acquire, either by descent, i)urchase, or contract ;^° 
 but now, by the 33 and 34 Vic. c. 23, from and after the 4th of 
 July, 1870," no confession, verdict, inquest, conviction or judg- 
 
 1 Daubigny v. Davallon, 2 Anst. 462, 
 468. 
 
 2 Dolderr. Loril HuntinKfield, 11 Ves. 
 2'j2; and see Alcinous v. Nigren, 4 El. & 
 Bl. 217; S. C num. Alcenius v. Nygren, 1 
 Jur. N. S. 16. 
 
 3 Meliorucchj' v. Meliorucchy, 2 Ves. 
 S. 24; (ireen v. (Jharnock, 1 Ves. J. 396; 
 Iloby V. Hitchcock, 5 Ves. 699; Seilaz v. 
 Ilanfoi), j7y. 261; Drevcr v. Muudeslev, 6 
 Rush. II. 
 
 * See nnle, pp. 27-37. 
 
 6 For mf^re as to fnidiriR with alien ene- 
 mies, see The Hoop, Tudor's L. C Merc. 
 Law, 7H7-813. 
 
 8 (Jiiinbottie v. Inngatc, 1 W. U. 533 V. 
 C. W. ; and see Ainsley v. Sims, 17 Beav. 
 57; 17 Jur. 6.')7 ; Swanzy r. Swanzy, 4 K. 
 & .1. 2.'i7; 4 .lur. N. .S. 1013. 
 
 7 4 IJlii. Com. 3S1. 
 
 8 i:x parte I'.nllock. 14 Ves. 452, 464. A 
 person attainted under the Act of New 
 
 York, 1799, is considered as civiliter irurr- 
 tuus. Jackson r. Catlin, 2 John. 248. One 
 attainted inider the Act cannot sustain lui 
 action f(jr rent due to him previous to tiio 
 pas-int; of the Act, or make it a set-off in 
 an action bv his lessee. Sleght v. Kade, 
 2 John. 236. 
 
 A plea of attainder is of rare occurrence, 
 and a ])lea of this sort in e(iuity would 
 I)rohul)ly be construed with the same 
 strictness as the like plea is at law. Story 
 Ell. ri. § 723. 
 
 w But not such land, stock, or chosts in 
 actum lis he holds as a tru»-tee or mort- 
 gagee; see 13 & 14 Vic. c. 60, § 46; and 
 see, before the Act, I'.. c parte Tyson, 1 Jur. 
 472; nor lands of which he is only ciiuit- 
 able owner. Attorncv-Gcneral v. Sands, 
 Tudor, K. rro|i. 664-679. 
 >" Bullock r. Di.drls, 2 B. & Aid. 277. 
 11 The day on which the 33 & 34 Vic. c. 
 23 received the royal assent.
 
 54 
 
 SUITS BY PERSONS WHO ARE UNDER DISABILITY. 
 
 Cll. Ill § .!. 
 
 Wliat tiling;; 
 woiv lort'ciioil 
 ou iittaiuikr: 
 
 for treason ; 
 
 and for 
 felony. 
 
 From what 
 time forfeit- 
 ure took 
 place : 
 
 of real estate ; 
 
 of chattels. 
 
 nu'nt s, of or lor, any tri\'isoii or iMony, or ^/t7o de sc, cnusos any 
 attainder or corruption of blood, or any forfeiture or escheat; the 
 law oi' forfeiture, consC(juent upon outlawry is, however, not 
 atVet'ted;* and no action at law or suit in equity for the recovery of 
 any ju-ojierty, debt, or damage whatsoever can be brought by any 
 convict ^ against any jierson during the time while he shall be sub- 
 ject to the operation of the Act ;^ and every convict isnnca))able, 
 during such time as aforesaid, of alienating or charging any pi'o- 
 perty, or of making any contract ; but these disabilities are sus- 
 pended during the time which he may be lawfully at large under 
 any license.'' 
 
 Witli respect to the forfeiture of real estates by attainder, there 
 was a distinction betAveen attainders for treason and for felony. By 
 attainder for treason, a man forfeited all estates of inheritance, 
 whether fee-simple or fee-tail, and all his rights of entry on lands 
 or tenements which he had at the time of the offence committed, or 
 at any time :ifterwards, to be for ever vested in the Crown, and 
 also the profits of all lands and tenements Avhich he had in hisoAvn 
 right, for life or years, so long as such interest should subsist ; ^ but 
 with respect to the attainder for felony, the 54 Geo. III. c. 145, 
 enacted, that except in cases of high treason, petit treason, and 
 murder or abetting the same, no attainder should extend to the 
 disinheriting any heir, nor to the prejudice of the right or title of 
 any person, except the offender during his life only ; and upon the 
 death of the offender, every person to whom the right or interest 
 of any lands or tenements should or might, after the death of such 
 offender, have appertained, if no such attainder had been, might 
 enter thereupon.^ 
 
 The forfeiture of real estate, consequent upon attainder of trea- 
 son or felony, related backwards to the time of the treason or 
 felony committed, so as to avoid all intermediate sales or incum- 
 brances, but not those before the fact.'' The case was, however, 
 different with regard to the forfeiture of goods and chattels ; for 
 
 1 33 & 34 Vie. c. 23, § 1. 
 
 2 The word " convict " means any per- 
 son against whom, after the passing of the 
 Act (i. e. 4 .July, 1870), judgment of death, 
 or of penal servitufie, has been pronounced 
 or recorded by any (.'ourt of competent ju- 
 risdiction in Kn^laiid, Wales, or Ireland, 
 upon anj' charge of treason or felony. 33 
 & 34 Vic. c. 23, § 6. 
 
 8 The convict ceases to be subject to the 
 operation of the Act when he dies or be- 
 comes bankrupt, or has suft'ered any pun- 
 i?-Jiment to wliich sentence of death pro- 
 nounced or recorded against him has been 
 lawfullj' commuted, or has undergone the 
 full term of penal servitude for which 
 judgment has been pronounced or recorded 
 against him, or such otiier punishment as 
 may have been duly substituted for such 
 
 full term, or has received a pardon for the 
 treason or felony of wliich he has been 
 convicted. 33 & 34 Vic. c. 23, § 7. 
 
 4 33 & 34, Vic. c. 23, §§ 8, 30. 
 
 5 4 Bla. Com. 381. Descent may be 
 traced through a person attainted since 
 1833; see 3 & 4 Will. IV. c 106, § 10. 
 
 6 54 Geo. III. c. 14.5. All copyliold es- 
 tates were forfeited to the lord, and not to 
 the Queen, unless there was an Act of Par- 
 liament or an express custom to tiie con- 
 trary; 1 Walk, on Coi)y. 326; 1 Cruise's 
 Dig. 307; and the forfeiture in such case 
 dill not accrue upon mere conviction, but 
 only on complete attainder: 3 B. & Aid. 
 510"; 2 Vent. 38; unless by special custom 
 to the contrary. 
 
 ■? 4 Bla. Com. 381-386; Tudor, R. Prop. 
 C90.
 
 PERSONS ATTAINTED OR CONVICTED. 
 
 55 
 
 that had no relation backwards; so that those only which a man 
 had at the time of conviction were forfeited.^ But by attainder, 
 not only all the personal pro^^erty and rights of action which a man 
 actually had were forfeited, but all personal property and rights 
 of action which acci'ued to the offender after attainder were for- 
 feited and vested in the Crown, without oflSce found ; ^ so that it 
 has been held, that attainder might be well pleaded in bar to an 
 action on a bill of exchange indorsed to the i)laintiff after his 
 attainder.^ There was another distinction between the forfeiture 
 of real and of personal estate : lands were forfeited upon attainder, 
 and not before ; goods and chattels were forfeited upon conviction, 
 because in many of the cases where goods were forfeited there 
 never was any attainder, which happened only where judgment of 
 death or outlawry was given ; and being necessarily upon convic- 
 tion in those, it was so ordered in all other cases.* In outlawries 
 for treason or felony, lands were forfeited only by judgment, but 
 goods and chattels were forfeited by a man's being put in the 
 exigent, without staying till he was quinto exactus or finally out- 
 lawed; for the secreting himself so long from justice was construed 
 a flight in law.^ 
 
 These points, although they do not immediately relate to the 
 personal disqualification from suing under which a party lie Avho 
 had been attainted either of treason or felony, are nevertheless 
 necessary to be adverted to ; because, if a party claiming a title to 
 property under an attainted person were to institute proceedings 
 in a Court of justice relating to that property, his claim might be 
 met by pleading the attainder of the person from whom his claim 
 was derived:^ and in such case, the time when the forfeiture 
 accrued might be a very important point for consiileration. 
 
 With respect to such felonies as were not punishable with death, 
 the felon on conviction, forfeited his civil rights ; but the punish- 
 ment endured had the like eftect and consequences as a pardon 
 under the great seal ;' and restored the offender to his civil rights, 
 on the determination of the period of punisliment.^ 
 
 Forfeiture of land only arose on attainder ;'•' and therefore, 
 in the case of a felony not capital, the offender, though convicted, 
 might convey or create. a valid trust of his real estate,^" and might 
 dispose thereof by will." But all personal property possessed by 
 
 Cii. III. § 3. 
 
 Effect of 
 attainder. 
 
 Distinction 
 between at- 
 tainder and 
 conviction, as 
 regarded the 
 time of for- 
 feiture. 
 
 Of forfeiture 
 in outlawries 
 for criminal 
 offences. 
 
 Effect of at- 
 tainder on 
 right to sue 
 of claimant 
 under the 
 attainted. 
 
 1 4 Bin. Com. 387; Perkins?;. Bradley, 1 
 Hare, 219, 228; but a colorable alienation 
 to avoid a rorfciture would be void as 
 
 •against tlie frown,! Hare, 227; and see 
 Bullock V. Dodds 2 li. & .\ld. 258; (Jhowne 
 V. Bayli«, 31 Beav. 351 ; SauiifU;rs v. War- 
 ton, 9 .Jur. N. S. 570, V. C. S. 
 
 2 CXIice found was abolisiicd by 22 Sc 23 
 Vir. c. 21, § 25. 
 
 3 l'.ul|..ck r. Dodds, 2 B. & Aid. 258. 
 
 * 4 Bill. Com. 387 ; Perkins v. Bradley, 
 1 Hiire, 219. 
 
 fi 4 Bla. Com. 387; see also 33 & 34 Vic. 
 c..23,§ 1. 
 
 8 Ld. Ked. 232. 
 
 7 9 Geo. IV. c. 32, § 3. 
 
 * See Williams, Pers. Prop. 44; anil /«»«<, 
 p. 58. 
 
 See Re Harrop, 3 Drew. 726. 
 
 1" Lewin on Tru-^ts, 20. 
 
 11 1 Jarm. Wills, 33; 2 Prideaiix, Conv. 
 268. 
 
 Conse- 
 quences of 
 conviction for 
 a felony not 
 capital: 
 
 on land; 
 
 on ])orsonal 
 property.
 
 AO 
 
 SUITS BY PERSONS WHO ARE UNDER DISABILTTY. 
 
 (11. 111. § 
 
 Appointment 
 of adminis- 
 trator ot" 
 proporty of 
 convict ; 33 & 
 34 Vic. c. 23, 
 §29. 
 
 Powers of 
 administra- 
 tor; 33 & 34 
 Vic. c. 23, §§ 
 10, 18, 30. 
 
 Appointment 
 of interim 
 curators and 
 their powers ; 
 33 & 34 Vic. 
 c. 23, §§ 21- 
 26. 
 
 l\im :it (hi- time of his conviction,^ or Avliicli afterwards accrued to 
 him, bctoie tlie term of piniishnient e.\j)ired, was forfeited to the 
 Crown,- inchidiiig personal i)roi)erty hehl in trust for liini,^ and 
 a vested interest, in reniain(U'r, in the j)roeeeds of hmd actually 
 converted;'' but not a contingent legacy, where the event on 
 wliich the ct)ntingency dei)ended did not happen till after the 
 punishment had been endured ; "* nor a vested interest, in re- 
 mainder, in land directed to be, but not actually converted ; ® and 
 where land to which an infant was entitled w;is taken ujider a 
 local Act, and the purchase-money paid into Court by reason of 
 his infancy, and he was afterwards convicted for felony, and sen- 
 tenced to seven years trans] )ortation, it was held, on the expira- 
 tion thereof, that he Avas entitled to the money as realty.'' 
 
 An administrator of the property of any convict may be ap- 
 pointed by the Crown ; and, upon his death, or revocation of his 
 appointment, a new administrator may be appointed, who will be 
 the successor in law of the former administrator ; and all i)i-operty 
 vested in, and powers given to, the former administrator devolve 
 upon and vest in the new administrator, who is bound by all the 
 acts of the former administrator.^ 
 
 Upon the appointment of the administrator, all the real and 
 personal ]iroperty, including choses in action, to which the convict 
 is, at the time of his conviction, or becomes, while subject to the 
 act, entitled, (except property acquired by him while at large 
 under any license^), vests in the administrator;^" who has absolute 
 power to deal therewith." The convict, or any person claiming an 
 interest in the property, cannot call in (piestion any acts bond fide 
 done by the administrator ; ^- and, subject to the powers and provis- 
 ions of the Act, the property is to be preserved and held in trust 
 by the administrator ; and, on the convict ceasing to be subject to 
 the Act, is to revert to him, his heirs, executors, or administrators.^'' 
 If no administrator is appointed, an ad interim curator, who has, 
 in general, the same power as the administrator, may be ai)pointed. 
 
 1 No forfeiture, however, followed con- 
 viction under the 10 & 11 Vic. c. 82, § 12; 
 13 & 14 Vic. c. 37; or 18 & 19 Vic. c. 126. 
 
 2 4 151a. Com. 387 ; Roberts v. Walker, 
 1 R. & M. 752. 
 
 3 Lewin on Trusts, 581. 
 
 ■» Ite Thompson, 22 Beav. 506. 
 
 '' Stokes V. Holden, 1 Keen, 145, 153. 
 
 6 Re Thompson, 22 Beav. .506. 
 
 7 Re Harrop, 3 Drew, 726. By 6 & 7 
 Vic. c. 7, § 3, convicts holding tickets of 
 leave are enabled to hold personal prop- 
 erty, and to maintain actions in respect 
 thereof, while their tickets remain un- 
 revoked. 
 
 8 33 & 34 Vic. c. 23, § 9. 
 '■> 33 & 34 Vic. c. 23, § 30. 
 
 10 33 & 34 Vic. c. 23, § 10. 
 
 11 33 & 34 Vic. c. 23, § 12. The ad- 
 ministrator may pay out of the property 
 the costs of the prosecution, and ol execut- 
 ing the Act (§ 13) ; and the debts and 
 liabilities of the convict, and may deliver 
 any ()roperty coming to his hands to any 
 person entitled to it (§ 14) ; and may out 
 of the property, make compensation to any 
 person defrauded by the criminal or fraud- 
 ulent acts of the convict (§ 15). 
 
 12 33 & 34 Vic. c. 23, § 17. 
 
 13 33 & 34 Vic. c. 23, § 18. Unless* 
 otherwise ordered, the costs as between 
 solicitor and client, and the charges and ex- 
 penses of the administrator incurred in 
 reference to the property, are a first charge 
 thereon; 33 & 34 Vic. c. 23, § 20.
 
 SUITS BY PERSONS WHO ARE UNDER DISABILITY. 
 
 57 
 
 and fi-om time to time removed;^ and all judgments or orders for 
 payment of money may be executed against the property in the 
 hands of the interim curator, or of any person who may have, 
 without legal authority, taken possession of the property of the 
 convict ; ^ and all judgments or orders may be executed by writ 
 of scire facias against proj^erty vested in the administrator.^ 
 
 Proceedings may be taken by summons to make any adminis- 
 trator or interim curator account, before the property reverts to 
 the convict;'* and, subject to the provisions of the Act, the admin- 
 istrator or interim curator is liable, when the convict ceases to 
 be subject to the Act, to account for all property received by him.^ 
 
 Conviction is taken advantage of by plea, and it seems that such 
 a plea would be judged with the same strictness as if it were a 
 plea at Law.® 
 
 In order to bar a plaintiff's suit on the ground of an offence 
 committed, it is not always necessary to show an attainder or con- 
 viction; for if a plea goes to show that, in consequence of an offence 
 committed, no title ever vested in the plaintiff, conviction of the 
 offence is not essential to the plea.' 
 
 Where a judgment pronounced upon a conviction for treason or 
 felony, is falsified or reversed, all former proceedings are absolutely 
 set aside; and the party stands as if he had never been accused;** 
 and he may, therefore, sue in a Court of Equity, in the same man- 
 ner that he might have done if no conviction had taken place. 
 
 The disqualification arising from a conviction may also be obvi- 
 ated by the Queen's pardon ; or by endunng the punishment im- 
 Ijosed." A pardon formerly could only have been granted under. 
 the Great Seal ; but noAV, a warrant under the Royal sign manual, 
 countersigned by one of the Principal Secretaries of State, grant- 
 ing a free pardon and the prisoner's discharge under it, or a condi- 
 tional pardon, and the performance of such conditKtn, is as effectual 
 as a ])ardon under the Great Seal.^° 
 
 There is a great difference between tlie effect of a pardon and 
 of a reversal. In the case of a reversal, tlie party is, as we have 
 seen, in all respects, replaced in the same condition that he was in 
 before the commencement of the proceedings; but a ])ardon has 
 not lliat effect." I'lnis, a person wlio has been convicted and par- 
 ddind cannot sue upon any right accrued to him before his pardon, 
 althougli he niay lor a right accrue<l atlerwards.^'^ 
 
 Ch. III. § 3. 
 
 Execution of 
 decrees and 
 orders against 
 property of 
 convict; 33 & 
 34 Vic. c. 23, 
 §:27. 
 
 Liability of 
 administrator 
 and interim 
 curator; 33 & 
 34 Vic. c. 23, 
 §§ 28, 29. 
 
 Conviction : 
 how taken 
 advantage of. 
 
 Plea, that the 
 act under 
 which plain- 
 tiif derives 
 title was 
 criminal. 
 
 Effect of re- 
 versal of 
 attainder. 
 
 Effect of a 
 ])ardon. 
 
 1 )ilVercnce 
 between par- 
 don and re- 
 versal. 
 
 » 33 & 34 Vic. e. 23, §§ 21-20. 
 • '^ As to eiiforciii;^ decri'CH and orders, see 
 putt Chiipter XXVI. 
 
 3 33 & 34 Vic. e. 23, § 27. 
 * .33 & 34 Vic. c. 23, § 2H. 
 fi 33 & 34 Vic. c. 23, § 20. 
 
 6 1,(1. lied. 229; and see I'.urk r. lirown, 
 2 Atk. 3!i7. 
 
 7 Kiill c. •, Mav, 17>^2, Ld. Kcd. 
 
 233. 
 
 8 4 Bla. Com. 393. 
 
 9 33 & 34 Vic. c. 23, § 7. Formerly in 
 the case of a cii])ital felony, cnduriiif; the 
 puni.shmcnt did not liiivc the eflect of a 
 pardon; see 9 (Jeo. IV. c. 32, § 3. 
 
 1" () Ceo. IV. c. 26, § 1 ; 7 & 8 iWo. IV. 
 c. 2K, § 13. 
 
 11 4 I '.la. Com. 402. 
 
 12 1 Com. Dig. Abatement, E. 3.
 
 58 
 
 SUITS HV ri'.USONS AVIIO ARK UNDER DISABILITY. 
 
 Cii.III.§4. "Wlu'ro a imnlon is i-ondilional, the clU'ct of" the coiivictioii is 
 
 not rouiDved until the condition lias been jjcrforniod ; and a Iblon 
 
 F.rteot of con- who lias boon sentonood to transportation Ms not restored to his 
 
 ilitionni i>ar- ..... ■■, ■, <« i • • i • t •> i 
 
 eivil riglits until the term oi Ins transportation lias e.xpu'ed,- and 
 therefore it was held, that personal jtroperty Avhicli did not belong 
 to a felon at the time of his conviction, but which accrued to him 
 afterwards during tlie time of Ids transportation, was forfeited to 
 the Crown." 
 
 lion : 
 
 tnuisporla- 
 tion. 
 
 Bankrupts 
 are under no 
 personal 
 disability. 
 
 May have 
 discovery in 
 equity where 
 sued at law; 
 
 Sectiox IV. — BfOilcnqyts. 
 
 The disability to maintain a suit on account of alienage, out- 
 lawry, and attainder, or conviction, arises ])artly from the plaintiif 
 being personally disqualified, and partly from his not being capable 
 of holding the property which is the object of the suit. The dis- 
 ability accruing from bankruj)tcy arises from the latter cause only, 
 or rather from the fact that, by the bankruptcy, all the bankru})t's 
 property, "whether in possession or action, is vested in the trustee 
 of his property,* and a bankrupt, even though uncertificated or un- 
 discharged, is not personally disqualified from suing ; and may, in 
 many cases, sustain suits either at Law or in Equity.^ 
 
 Thus, under the former Bankrupt Law, a bankrupt who had not 
 obtained his certificate v^^as allowed to file a bill to restrain a nui- 
 sance, or the infliction of any injury of a private or particular nature, 
 without making his assignees parties ; ® and where sued at law upon 
 
 1 Under 8 Geo. III. c. 15. 
 
 2 Bullock V. Dodds, 2 B. & Aid. 258; 
 and see 4 Bla. Com. 400; Gully's case, 
 Leach's Crown Law, 99.- As to the remis- 
 sion of triinsportiUion, see 5 Geo. IV. c. 
 84, § 26 ; Goui,di r. Davies, 2 K. & J. 623. 
 
 3 Roberts i'. Walker, 1 R. & M. 752, 
 766. Transportation is abolished by 20 & 
 21 Vic. c. 3, and penal servitude substituted 
 by 16 & 17 Vic. c. 99 ; and see 27 & 28 Vic. 
 c. 47. 
 
 •1 By the Bankrupt Act, 1869 (32 & 33 
 Vic. c. 71), § 17, the property' of the 
 bankrupt is, immediately upon the adjudi- 
 cation, to vest in the Registrar, and is, on 
 the appointment of a trustee, tbrthwilh to 
 pass to and vest in the trustee. As Jo the 
 appointment of trustee, see § 14. As to 
 release of trustee, see§§ 51-53 ; as to death 
 and removal of trustee and suits by and 
 a^^ainst him, see § 83. As to liquidation by 
 arrangement, see § 125. As to composition 
 with creditors, see §§ 126, 127. See also 
 the Linuidation Act, 1868 (31 & 32 Vic. c. 
 68). As to entf-rinf?, under former Bank- 
 rupt Law, a suggestion on the death or 
 removal of an assignee plaintifl', see Lloyd 
 V. Waring, 1 Coll. 036; Man v. Ricketts" 7 
 Beav. 484; 9 .Jur. 1103; 1 Phil. 617; and 
 see 16 Beav. 440. 
 
 5 See Herbert v. Sayers, 5 Q. B. 978; 
 Calvert on Parties, 199 tl stq. ; Story Eq. 
 ri. §§495, 726; Elderkin i'. Elderkin, 1 
 
 Root, 139; Hilliard B. & I. 384. For in- 
 stances in which bankrupts have been 
 allowed to sue at law, see Perkin v. 
 Proctor, 2 Wils. 382; Summersett v. Jar- 
 vis, 6 Moore, 56 ; 3 B. & B. 2 ; ( 'oles v. 
 Barrow, 4 Taunt. 754; Chippendale v. 
 Tomlinson, 4 Doug. 318; 1 Cooke's B. L. 
 428; Silk V. Osborne, 2 Esp. 140; see Sel- 
 wyn's N. P. Sup. 323; Evans v. Brown, 1 
 Esq. 170; Fowler v. Down, 1 Bos. & P. 
 44; Laroche v. Wakeman, Peake, 190; 
 Webb V. Ward, 7 T. K. 290; Webb v. 
 Fox, 7 T. R. 391; Clarke v. Calvert, 
 3 Moore, 96; Cuniming v. Roebuck, 1 
 Holt N. P. 172; Lincoln v. Bassett, 9 
 Gray, 355 ; derricks Estate, 5 Watts & S. 1. 
 A bankrupt can in his own name main- 
 tain a suit brought before he was declared 
 a bankrupt, for a wrong done, unless his 
 assignee should interpose an objection. 
 Sawtelle v. Rollins, 23 Maine, 196; Tun- 
 no V. Edwards, 3 Brev. 510; Kirwan v. 
 Latour, 5 H. & John. 289; llayllar v. 
 Sherwood, 2 Nev. & M. 401. A claim for 
 an injury done to a party by the negligence- 
 of another did not pass by an assignment 
 of his estate under the insolvency laws of 
 Massachusetts before the recovery of judg- 
 ment. Stone V. Boston and Maine Rail- 
 road, 7 Gray, 539. 
 
 6 Semple v. London & Birmingham Rail- 
 way Company, 9 Sim. 209.
 
 BANKRUPTS. 
 
 59 
 
 a bond or note, he has been allowed to file a bill of discovery, in 
 order to obtain proof that such bond or note was fi'audulently pro- 
 cured, the specific relief prayed is, however, material in determin- 
 ing whether the assignee is a necessary party to the bill ; for where 
 it prayed- that the instrument upon which an insolvent debtor was 
 sued at law might be delivered up, the assignee was considered 
 a necessary party ; ^ where, also, persons claiming to be creditors of 
 bankrupts, instead of seeking relief in the bankruptcy, brought an 
 action against the bankrupts, and the bankrupts filed a bill seeking 
 a discovery in aid of their defence to the action, and praying that 
 the accounts between them and the plaintiffs at Law might be 
 taken, and that the plaintiffs at Law might pay the balance, a 
 plea of bankruptcy was overruled ; the Court being of opinion that 
 the bankrupts were entitled to the discovery and account, although 
 they wei-e not entitled to that part of the pi-ayer which sought the 
 payment to them of the balance.^ 
 
 In general, however, a bankrupt, although he is by law entitled 
 to the surplus of his estate which remains after payment of his 
 debts, cannot bring a bill in equity for any property which is 
 vested in the trustee under the adjudication, even though there 
 may be collusion between them and the ])ersons possessed of the 
 proj^erty ; '^ thus, where a bill was filed by a bankrupt to recover 
 property due to his estate, .stating that the commission against him 
 was invalid, and that there was a combination between his assignees 
 and the debtor, to which a demurrer was put in. Sir John Leach 
 V. C. allowed the demurrer: saying, tliat if it had been true that 
 the commission was invalid, the ijlaintiff" ought to have tried its 
 validity by an action, and could not by bill impeach the commis- 
 sion ; and that if there were a combination between the debtor and 
 his assignees, his jjroper course was to a})ply, by petition, to have 
 the assignees removed and new assignees appointed.^ 
 
 In the case of Heath v. (Jhadwick^ the question arose, whether 
 creditors of an insolvent, under the Insolvent Debtor's Act,® could 
 maintain a suit respecting property, or rights alleged to have 
 belonged to the insolvent, and to be vested in his assignee, \\\\o\\ 
 an allegation of (•(dlusion lictwcen the assignee and the j)arty 
 
 Ch. III. 5 4. 
 
 but not relief. 
 
 Cannot sue 
 in equity for 
 any property 
 Avhich is 
 vested in 
 their as- 
 signees, 
 though collu- 
 sion between 
 defendant 
 and the trus- 
 tee be al- 
 leged ; or 
 adjudication 
 invalid ; 
 
 nor can the 
 creditors ; 
 
 1 BhIIs r. Strutt, 1 Hare, 140; Meddow- 
 croft I'. Campbell, l.'J Hr-av. 1^4. 
 
 2 L'.wM'les iv Taylor, 1 Mad. 423. This 
 decision was afterward-* afTirined on ap])eal. 
 1 Mad. 425; 2 Ko.ne, 432; and see (Jcvet r. 
 Arriiitage, 2 An.^t. 412 ; Kuye v. Fosbrooke, 
 8 .Sim. 28. 
 
 3 I'roperty belonpinj; to the bankrupt as 
 factor, executor, Of trustee, does not j)ass 
 to the a»si;;nee». Archbold's ii'kpcy, 328- 
 333; Ivxpiiilt Fill-, 1 Alk. 101; IJcniiet 
 V. Davis. 2 1*. Wms. 31<!; Kx pniU IJutlcr 
 Ami). 74; l-'.x parte (Mii'ui, 3 J'. Wms. 
 187, n («); (Jodfrev i'. Furzo, ib. 185; I'en- 
 nellp. Deffeil,4 De G., .M. & G. 372, 379; 
 
 and .sec Lewin on Trusts, 180-185; 12 & 13 
 Vic. c. 100, § 130. 
 
 ■' Hammond v. Attwood, 3 l\Iad. 158; see 
 also Vcweiis i\ Hobinson, 11 Sim. 105, 120. 
 
 •'' 2 riiil. 049; and see M;ijor v. Auck- 
 lanil, 3 Hare, 77; Goldsmith v. lUissell, 5 
 De (;., .M. & (J. 547; lu^lwny v. .lones, 1 
 K. & J. O'.il, and cases at Common Law 
 there cited ; and tiic observations of Lord 
 Cottenham in Kochfort v. Haltersbv, 2 \l. 
 L. Ca. 403, 400; Davis v. Snell, 28 IJuav. 
 321 ; 6 Jur. N. S. 1134; 2 De G., V. & J. 
 403. 
 
 1 & 2 Vic. c. 110; 5 & Vic. c. 110; 
 7 & 8 Vic. c. 90.
 
 60 
 
 SUITS RY PKHSONS WHO ARK UNDKU DISABILITY. 
 
 Oil m. §4. 
 
 cannot sue in 
 equity tor the 
 suiplus of his 
 estate. 
 
 No relief in 
 equity, where 
 obtainable 
 under the 
 bankruptcy ; 
 
 Bnt suit to 
 redeem by 
 bankrupt, 
 after creditors 
 satisfied, is 
 allowed. 
 
 :»<::iiiist wliom ri'lii't' is prayed. Lord Cotteiiliaiii ri'vicwed the 
 various casos upon tlio siihjocl, and from liis jiid<j;nK'nt il ajipcars, 
 that the c"roditt)rt! t)t"nn insolvent cannot under siicli cireuinstanoes 
 sin', and that the same prineipU' is ;ippHcal)U' also to cases in bank- 
 ruptcy; and further, that there is no distinction in this respect 
 between bankrupts or insolvents tliemselves and their creditors, or 
 ]iersons claiininii' under them.^ 
 
 In >Spr«i/(/ V. i>'/y;/.Y\s,- it was held by Lord Alvanley M. R. that 
 a bankrui>t cannot file a bill for the redemption of a mortyage, in 
 respect of his i-ight to the surplus of his estate ; and hi Benfield v. 
 Solomons,^ a demurrer was alloAved to a bill by a bankrupt against 
 a mortii-ao-ee of estates in England and Berbice, for an account and 
 jiayment of the balance to the assignees, who Avere made defendants 
 and charged with collusion. 
 
 It may be here stated, that, in general, the Court of Chancery will 
 not interfere to give relief in cases where the party ai)])lyingmight 
 obtain his rights by proceeding in bankru})tcy.'' In Preston v. 
 Wilson^^ Sir James Wigram V. C. said, " I have had occasion to 
 consider the effect of the Bankrupt Laws in excluding the jurisdic- 
 tion of this Court, in cases to Avhich its jurisdiction would otherwise 
 extend ; and I Avas strongly impressed with the necessity of main- 
 taining, to the fullest extent which may be consistent witii justice, 
 the exclusive jurisdiction of the Bankrupt Courts, in cases com- 
 mitted to their administration. The jurisdiction of the Commis- 
 sioners of Bankrupts is a limited jurisdiction. They have not, as 
 this Court has, an original and general jurisdiction, Mat"liin which 
 cases of a given class will fall of themselves, unless by some special 
 act of the legislature they are withdrawn from it. The po\Vers of 
 the Commissioners being new, and derived from special statutes, 
 are limited by these statutes;" and his Honor added, that he did 
 not find any express j^owers given the Commissioners to com})el 
 the assignee to assign a surplus to the bankru])t, or to dismiss a 
 petition, or take it off the file, in a case like that before him. 
 Accordingly, the plaintiff was, under the special circumstances of 
 the case, having satisfied all his creditors, allowed to maintain a 
 suit against the defendant, as mortgagee, for the redemi)tion of an 
 estate which had been mortgaged before he presented his petition 
 to the Court of Bankruptcy, under the 5&6 Vic. c. 116," notwith- 
 standing the objection of the defendant that the estate of the i)Iain- 
 tiff (if any) was vested in the official assignee.'^ 
 
 1 See Stoever v. Stoever, 9 Serg. & R. 
 434; Oriswold v. :McMillan, 11 111. 5U0. 
 
 2 G Ves. 5fc3, 580. 
 
 3 9 Ves. 77, 82; and Smith r. M'ffatt, L. 
 R. 1 Kq. 397; 12 .Jur. N. S. 22, V. ('. W. 
 
 * See Riches v. Owen, \V. X. (1808), 
 158 V. C. G.; L. R. 3 Ch. Ap. 820, L. .J.J.; 
 Bell r. Bird, L. H. 6 Eq. 035, V. C. G ; 
 Martin v. I'owning, L. R. 4 Ch. A p. 356, 
 
 I>. .JJ. ; Stone v. Thomas, L. R. 5 Ch. Ap. 
 219, L. C. ; Phillips v. Furber, 18 W. R. 
 479, M. R. ; see also Forsliaw v. Mottram, 
 W. N. (1867) 191, V. C. S. 
 
 5 5 Hare, 185, 192. 
 
 6 Repealed by the Bankruptcy Act, 
 1861 (24 & 25 'Vic. c. 134) § 230, and 
 Schedule G. 
 
 '' Preston v. Wilson, 6 Hare, 185; and
 
 BANKRUPTS. 
 
 61 
 
 As a bankrupt cannot file a bill against strangers respecting 
 property vested in Lis assignees under the bankruptcy, so it has 
 been held, that he cannot maintain a suit against his assignees for 
 an account of their receipts and payments under, the bankruptcy, 
 and for payment of the surplus. This doctrine was clearly laid 
 down by Lord Eldon, and has since been acted upon.^ 
 
 It is to be observed,* that whatever j^roperty a bankru2:)t has, or 
 to use a technical expression, may depart vnth, becomes, upon 
 bankruptcy, the property of the assignees, who are to have it for 
 the benefit of the creditors ; and the circumstance of such property 
 'being in a foreign country, where the bankrupt laws of this country 
 do not. prevail, makes no diffcn-ence ; so that a bankrupt cannot 
 maintain a suit in this country, even though the property in respect 
 of which the suit is instituted is in another country.^ 
 
 The rules with regard to bankrupts applied, by analogy, to per- 
 sons who had taken the benefit of the Insolvent De])tors' Acts, 
 who were equally considered as being devested of all right to 
 maintain a suit in respect of any surplus to which they might 
 eventually be entitled;^ but these provisions are no longer in 
 force ; * and all persons, whether traders or non-traders, are now 
 subject to the bankrupt laws.^ 
 
 But, although neither bankrupts nor insolvent debtors can sue 
 in respect of their interest in the sm-plus of the property, yet, as they 
 have such an interest in the surj)lus as is capable of assignment, 
 it seems that the persons claiming under such assignments, if 
 made for valuable consideration, may maintain bills resi)ecting 
 them. This ap|)ears to have been the opinion of Lord Alvanley 
 M. R.'in Spragg v. BinJces,^ though his lordship seems to have 
 doubted Avhether tlie Court liad not gone too far in permitting 
 such assignments, and to have held that a party could not i)arcel 
 
 Cn. III. § 4. 
 
 nor for prop- 
 erty abroad. 
 
 Insolvents 
 could not sue 
 assignees for 
 surplus of 
 their estates; 
 
 Seats, per- 
 sons claiming 
 surplus under 
 an assign- 
 ment by 
 bankrupt or 
 insolvent. 
 
 gee Wearinp v. Ellis, 6 De G., M. &. G. 
 59G: 2 Jur. N. S. 204, 1149. It has been 
 held that an insolvent deb.tor who lias 
 made a general assignment, may on proof 
 of his ])aying all ilcbts due at the tinu- of 
 his discharge, l)ring ejectment in his own 
 name, for lands assigned by him, witliout 
 any formal re-assignnlent. I'ower r. IIol- 
 man, 2 Walls, 218. As to disclaimer by 
 the assignees in a foreclosure suit, see 
 Ford r. White, KJ Beuv. 120. 
 
 1 Saxttin r. Davi-, IK \'es. 72, 79 ; Tarle- 
 ton r. llorul.v, 1 Y. if{ ('. Ex. 172, 1«K; 
 Smith V. MoHMtt, L. I!. 1 Kq. ;J07; 12 ,lur. 
 N. S. 22, \'. C. W. ; sec Lincoln v. Bassett, 
 9 Grav, ■'{•'JS. 
 
 2 sill V. Worswick, 1 II. HI. 665; Hunter 
 V. Potts, 4 T. K. 182; rhilli].s r. Hunter, 
 2 II. HI. 402; Mcrifidd r. Solomons, 9 Ves. 
 77, and see /A- I'didiman, L. \l. 2 Kq. 23, 
 M. U.; 3r, Ucav. 2i;i. 
 
 3 Gill V. Fleming, 1 Uidg. P. C. 431; 
 Spragg r. IJinke.s, 5 Vew. 083; Dyson v. 
 Hornby, 7 De G., M. & G. 1 ; Cook v. 
 
 Sturgis, 3 De G. & J. 50C; 5 Jur. N. S. 
 475; Troup v. Kicardo, 10 Jur. N. S. 859; 
 12 VV. R. 1135, M. K. ; 13 VV. H. 147, L. C; 
 10 Jur. N. S. 1161, L. C. ; Smith v. Moffiitt, 
 L. II. 1 Kq. 307; 12 Jur. N. S. 22, V. C. 
 \V.; Roberts v. .Moreton, W. N. (1869) 
 28; 17 W. ]{. 397, V. C. J. As to in.sol- 
 vents under 5 & 6 Vic. c. 110, .see Wearing 
 V. Kliis,6 De G., M. & (J. 596; 2 Jur. N. 
 S. 2(14, 1149. A suit for administriition 
 of a deceased insolvent's estate maybe in- 
 stituted by a scheduled creditor.' tJals- 
 worthv V. Durrant, 2 De (;., F. & J. 466; 
 7 Jur.'N. S. 113; 29 IJeav. 277; 6 Jur. N. 
 S. 743; see Smith v. M(iffatt, L.Ji. 1 En. 
 397; 12 Jur. N. S. 22 V. 0. VV. 
 
 * The IJiinkruptcy l^epeal and Insolvent 
 Courts Act, 1869 (32 & 33 Vic. c. 83) §20, 
 and schedule. 
 
 <■' The P.ankruptcy Act, 1869, 32 & 33 
 Vic. c. 71, § 6. 
 
 « 5 Ves. 583, 580 ; Cook V. Sturgis, 3 De 
 G. & J. BOG; 5 Jur. N. S. 475.
 
 (52 
 
 SUITS RY PEHSONS WHO AKE UNDEIl DISABILITY. 
 
 m. iii.§ 4. 
 
 bankniiu 
 may suo lor 
 sulisi'iiiK'iitty 
 actiuiri'ii 
 properly ; 
 
 ditVoroiuo, in 
 tliis rospi'ct. 
 liotwoiii a 
 baiiknipi ami 
 an insolvent. 
 
 When bank- 
 rupt cy or 
 nisolvenev 
 should he 
 taken advan- 
 tage of bj' 
 demurrer; 
 
 when by plea. 
 
 Form of plea, 
 
 out :i riu'lil in ncc-mnits (o be tiikon to dilU'rciit ]iors(ins, so 
 tliMt ovofv Olio of these ]tersoiis iniulit lilo a bill pro interfuse svo. 
 
 The disability of a bankrupt to maintain a suit, does not apply to 
 a bankrupt who has obtained his order of discharue, where lie is 
 suiiiu- in resjieet of pro])erty aocjnired after his order of discharge 
 has taken effect. 
 
 In most res})ects tlie situation of an insolvent debtor, as for as 
 reo-ards the right to sue for proi>erty acquired previous to liis dis- 
 charge, was similar to that of u bankrupt whose order of discliarge 
 has taken effect; but there was a material difference in their situa- 
 tions with regard to after-acquired projierty. A bankrupt may, as 
 we have seen, after his order of discharge has taken effect, become 
 entitled to property in the same manner tliat he might before his 
 bankruptcy ; ^ but in the case of an insolvent debtor, his future 
 property was made liable to the payment of his debts contracted 
 before his discharge. 
 
 The proi)er course by which to take advantage of the bankruptcy 
 or insolvency of the plaintiff in a suit, where such bankrui)tcy or 
 insolvency has occurred previously to the filing of the bill, is by 
 demurrer, if the fact appears upon the bill ; - and if the fact does 
 not so appear, it should be pleaded. In JSowser v. Hughes,^ 
 which was the case of a plea to a bill by an insolvent debtor against 
 his assignees, and a debtor to the estate, the facts stated in the 
 plea appeared upon the face of the bill, and yet the plea was held 
 good ; and it has been held, that as at Law any matter which 
 arises between the declaration and the plea may be ])leaded, so 
 bankruptcy or other matters arising between the bill and plea may 
 be pleaded in Equity.* 
 
 In i)leading bankruptcy it was the rule that all the facts should 
 be stated successively and distinctly; and it was not sufficient to 
 say that a commission or fiat of bankruptcy Avas duly issued against 
 tlie plaintiff, under which he was duly found and declared a bank- 
 rupt, and that all his estates and effects had been duly transferred 
 to or become vested in the assignees ; ^ a plea of bankruptcy must 
 have stated distinctly the tniding, the contracting debts, the peti- 
 tioning creditor's debt, tlie act of bankrui)tcy, the commission or 
 fiat, and that the plaintiff had been found bankrupt; but it may be. 
 doubted how fiu- this rule would now be strictly enforced.*' 
 
 1 Under the Bankruptcy Act, 1861, since 
 repeale.l hv the Z2 k 33 Vic. c. 83, § 20, 
 and Schedule, the Court might, however, 
 grant th5 order of discharge, subject to 
 any coudition touching after-acquired prop- 
 erty of the bankrupt; see 24 & 25 Vic. c. 
 134, § 159, rule 3; and' see Ax pai-le 
 Griffiths, 10 .Jur. N. S. "8'j, 787, L. C. 
 Property coming to the bankrupt, between 
 the lime of pronouncing the onler of dis- 
 charge and the time allowed for appealing 
 therefrom, belongs to tlie bankrupt, when 
 
 the order is not reculled or suspended on 
 appeal, Jie Laforest, 9 Jur. N. S. 851; 11 
 W. K. 738, L. C. 
 
 2 Bentield v. Solomons, 9 Ves. 77,82; 
 Story Eq. PI. § 495. 
 
 8 1 Anst. 101. 
 
 4 Turner v. Robinson, 1 S. & S. 3; Ser- 
 grove V. Miiyhew, 2 M'N. & G. 97; Lane 
 V. Smith, 14"Beav. 4'J. 
 
 5. Carleton v. Leighton, 3 Mer. 6G7, 671 ; 
 Lane v. Smith, 14 Beav. 49. 
 
 6 See Pepper v. Heuzell,2 H. & M. 486;
 
 BANKRUPTS. 
 
 63 
 
 With respect to tlie bankruptcy of the plaintiff after the com- 
 mencement of a suit, or after plea and answer put in, it seems that 
 the bankruptcy of a sole plaintiff does not strictly cause an abate- 
 ment, but renders the suit defective ; ^ or, according to the language 
 of Lord Eldon, in Randall v. Mumford,- " this Court, without 
 saying whether bankruptcy is or is not strictly an abatement, has 
 said that, according to the course of the Court, the suit is become 
 as defective as if it was abated." ^ 
 
 The result in practice of the above principle is, that if the 
 assignees of a bankrupt, sole plaintiff, desire to prosecute the suit, 
 they must obtain, on motion or petition of course, an order enabling 
 them so to do.* And upon the non-prosecution of a suit in which 
 the plaintiff has become bankrupt, the defendant, if he wishes to get 
 rid of the suit entirely, must adopt a course of proceeding analogous 
 to that pursued where the plaintiff obtains an injunction and dies; 
 in which case, the defendant may move that the injunction be dis- 
 solved, unless the representatives of the deceased plaintiff revive 
 .within a certain time;^ he must move that' the trustee may, 
 within a specified time (usually three weeks) after notice of the 
 order, take proper supplemental proceedings for the purpose of 
 prosecuting the suit against him ; or in default thereof, that the 
 plaintiff's bill may stand dismissed ;° where the bunkruj^tcy has 
 taken place after decree the motion should be that the trustee may, 
 within a limited time, elect whether he will prosecute the suit, 
 or that in default all further proceedings should be stayed.' 
 
 This is, however, not a motion of course, and the trustee must 
 be served with the notice of it.^ It should also be supported by 
 
 Ch. in. § 4. 
 
 Bankruptcy 
 of plaiutitt', 
 after suit 
 commenced, 
 renders suit 
 defective. 
 
 Practice, 
 -ft-liere sole 
 pliimtitf be- 
 comes bank- 
 rupt : 
 
 trustee may 
 obtain order 
 to prosecute 
 suit; 
 
 otherwise, 
 defendant 
 may move 
 that he take 
 supplemental 
 proceedings 
 within a 
 given time, 
 or bill stand 
 dismissed; 
 
 or proceed- 
 ings stayed; 
 
 and the Bankruptcy Act, 1869 (32 & 33 
 Vic. c. 71), § 10; poit, p. G9; but see Lane 
 t'. Smith, 14 Ueav. 49; see Lacj'r liockett, 
 11 Ala. 100; Seaman v. Stoughton, 3 
 Barb. Ch. 344; Stone v. Parks, 1 Chand. 
 60. 
 
 1 Lee V. Lee, 1 Hare, 621 ; see Hobbs v. 
 Dane Manuf. Co., 5 Allen, 581. 
 
 2 18 Ves. 427. 
 
 8 But see SawtcUe v. Rollins, 23 Maine, 
 C; Milliard I'.. & \. .'{!*" etscj. 
 
 * .Jackson r. Kigu Railway, 28 Beav. 75; 
 for forms of motion paper and petition, see 
 
 Vol. in. 
 
 6 Wheeler v. Malins. 4 JIad. 171 ; Lord 
 fluntinglower f. Sherborn, 6 Beav. 380; 
 Kobiiison v. Norton, 10 I5eav. 4H4; Fislier 
 V. Fisher, 6 Hare, 628; 2 I'hil. 2:i0; .Meik- 
 Inm c. F.Imore, 4 I)e (i. & .J. 2ii.S; 5 Jur. 
 N. S. 904; .lack^on i\ Rifra Railway, 28 
 Beav. 75; B'jucicault r. Dclafi.-ld, 10 .Jur. 
 N. S. 9.37; 12 W. R 1025, V. C. W.; 10 
 Jnr. N. S. 1003; 13 W. R. 64, L. JJ.; 
 Simpson t- . Bathrust, L. K. 5 Ch. An. 193, 
 L. (J. 
 
 8 Sec Story Kq. I'l. § 340 and note_; 
 Sedgwick r. Cleveland, 7 I'aige, 287, 290'; 
 Oarr v. (Jower, 9 Wend. 649; 2 Barb. Cli. 
 Pr. 65, 66. This is the course before de- 
 cree; after decree, the motion should 
 
 ask to stay all further proceedings: Clarke 
 V. Tipping, 16 Beav. 12; and see Whitmore 
 V. Oxborrow, 1 Coll. 91; and an a])])lica- 
 tion by the defendant for an order to re- 
 vive under 15 & 10 Vic. c. 86, § 52, after 
 decree, was refused. Maw v. Pearson, 12 
 AV. R. 701, JNI. R. ; where the bankrujitcy 
 lias occurred in a foreign country, f-ce Bour- 
 baud y. Bourbaud, 12 W. R. 1024, V. C.W. ; 
 Clement?'. Langtiiorn, \V. N. (18G8), 181, 
 186, V. C. G. I'or forms of notice of mo- 
 tion, see Vol. III. ; and for an order in like 
 case, see Seton, 1278. The same practice 
 should be followed where the pliiintilf has 
 executed a trust deed under the Bank- 
 ruptcy Act, If-Gl, (24&25 Vice. 134); 
 Price'i!. Rickanls, L. It. 9 ]u|. 35. V. ('. .J. 
 
 ' Whitmore r. Oxborrow, 1 Coll. 91; 
 Clarke v. Tipping, 16 licav. J2. 
 
 •* The plaintiir need not be served; 
 Brown v. liogers, 22 .July, 1869, Reg. Lib. 
 2168, V. C. .J., where the order was di- 
 rected to be drawn up without notice to 
 the plaintiff; andsei; form of order, Seton, 
 1278, No. <;. See roiilrn, Vcstris v. 
 Hooper, 8 Sim. 570; see also Randall v. 
 Mumford, 18 Ves. 424, 428; Wheeler v. 
 Malins, 4 Mad. 171. As to the proper 
 time for making the iipplicatiou, sec Sharj) 
 V. llullett, 2 S. it S. 496.
 
 64 
 
 SUITS BY PERSONS WHO ARE UNDER DISABILITY. 
 
 Cii. HI. § 1. 
 
 but cnnnot 
 ninke the 
 onliuarv mo- 
 tion to dis- 
 miss. 
 
 ^Vhcro bank- 
 rupt is not 
 soli' i)laintiti', 
 dcfenilant 
 may move to 
 dismiss. 
 
 Practice, 
 after injunc- 
 tion ^rranted. 
 
 Trustees' lia- 
 bility to costs. 
 
 :iu nnidiivit oi' tlu' Ihcts;^ and it is to bo obscrvod, that tlie dismis- 
 sal will bo without ot^sts, as a bankrupt cannot bo inado to ])ay 
 costs.- Wlioro, howovov, the bankru])tcy takes place botwoon the 
 liearing and judgment, the Court Avill not, bolbre giving judgment, 
 com]iel the assignees to revive.^ 
 
 Alter the bankru])tcy of the plaint ill', the di'fondant cannot make 
 the onlinary motion to dismiss; and in /Selhts v. JMwson,'^ Lord 
 Thurlow holil that such an order, pending the bankruptcy of the 
 plaintiff, was a nullity, and therefore refused to discharge one ob- 
 tained under such circumstances. 
 
 The rule of practice, by which a defendant is required to give 
 notice to the trustee in the case of the bankruptcy of a ])laintiff, 
 is confined to the case of a sole plaintiff, who, becoming bankrupt, 
 is supposed to be negligent of what is sought by the bill, and the 
 Court, to prevent surprise and save exjjense, requires notice to be 
 given to the trustee; but tliere is no instance where the Court 
 has taken upon itself to interpose the rule where there are two 
 jjlaintiffs, one of whom is solvent and the other insolvent; for it- 
 is as competent to the solvent plaintiff as it is to the trustee, to 
 rectify the suit.^ 
 
 In the case of an injunction granted at the suit of a plaintiff 
 who afterwards becomes bankrupt, the practice which has been 
 adopted is to require the bankrupt to bring the trustee before the 
 Court ; and the Court will make an order to dissolve the injunc- 
 tion and dismiss the bill, unless the trustee shall be brought before 
 it within a reasonable time; which order, it seems, may be served 
 upon the bankrupt alone, as it is supposed that the bankrupt will 
 find the means of giving the trustee notice.*' Such an order will 
 also be without costs. 
 
 Where the trustee elects to continue the suit and obtains a sup- 
 plemental order authorizing him to prosecute it, he becomes liable 
 to the costs of the suit from the commencement ; ' and, where the 
 plaintiff had, previously to his bankruptcy and the supplemental 
 order, been oi-dered to pay the costs of a proceeding, the proceed- 
 ings in the suit were stayed until the payment of such costs.* 
 
 1 Porter v. Cox, 5 Mad. 80. 
 
 2 Wheeler v. Malins, 4 Mad. 171 ; Lee v. 
 Lee, 1 Hare, 621 ; Meiklam v. Elmore, 4 De 
 G. & .L 208 ; 5 Jnr. N. S. 904 ; Boucicault v. 
 Delafield, 10 Jur. X. -S. 9.37; 12 W. R. 
 102.5, V. C. W. ; 10 Jur. N. S. 1063; 13 W. 
 R. 64, L. .IJ. 
 
 3 IJoucicault V. Delafield, 12 W. R. 8, V. 
 C. W. 
 
 * 2 Anst. 4.58, n. ; S. C. nom. Sellers v. 
 Dawson, 2 Dick. 738; Robinson u. Norton, 
 10 Beav. 484. The motion cannot be 
 made after the execution by tlie plairitiflf" 
 of a trust deed under theBankriij)tcv Act, 
 1861 (24 & 25 Vic. c. 134); Price I'-'Kick- 
 ards, L. R. 9 Eq. 35, V. C. J. 
 
 5 Caddick v. Masson, 1 Sim. 501; La- 
 tham V. Kenrick, 1 Sim. 502; Kelmin- 
 ster V. Pratt, 1 Hare, 632; but see Ward v. 
 Ward, 8 Beav. 379; 11 Beav. 159; 12 Jur. 
 592. 
 
 6 Randall v. Mumford, 16 Ves. 424, 428; 
 Wheeler v. Malins, 4 Mad. 171. It would 
 seem that under the present practice the 
 trustee should be served with notice of the 
 motion. 
 
 " I'oole V. Franks, 1 Moll. 78. 
 
 8 Cook V. Hathaway, L. R. 8 Eq. 612, 
 V. C. M.; and see Chap. XIX, § 1. Dis- 
 missing Bills and Staying Proceedings.
 
 BANKRUPTS. 
 
 65* 
 
 A suit does not abate by the death or change of the trustee 
 plaintiff, but the Court may, upon the suggestion of such death or 
 change, allow the suit to be prosecuted in the name of the surviv- 
 ing or new trustee.^ An order is necessary for this purpose, which 
 may be obtained on motion or petition of course.^ 
 
 It was formerly necessary, in all actions where the assignees, 
 either as plaintiffs or defendants, claimed property under the bank- 
 rupt, to prove strictly the three requisites to support the commis- 
 sion, VIZ., the trading, the act of bankruptcy, and the petitioning 
 creditor's debt, as well as that the commission was regularly issued, 
 and the assignment duly executed to the assignees. Upon failure 
 -of proving any one of these matters (the proof of which added 
 considerably to the costs of an action, and was often difficult to 
 be established by strict rules of evidence), the assignees were 
 nonsuited, and thus frequently prevented from recovering a just 
 debt due to the bankrupt's estate. To provide in some measure 
 for this evil, certain provisions were contained in the former Bank- 
 ruptcy Acts, with respect to what should be considered sufficient 
 evidence of these focts ; but many difficulties, and much discussion, 
 ensued under these provisions; and it is now enacted,^ to the 
 effect, that if the bankrupt do not dispute the fiat or petition 
 within certain limited periods, the Gazette shall be conclusive evi- 
 dence of the bankruptcy, as against the bankrupt, and against all 
 persons whom the bankrupt might have sued if not adjudged 
 bankrupt;- and even the circumstance that the bankrupt is an 
 infant, will not prevent the Gazette being conclusive ; * and it is 
 also enacted to the effect, that in any action or suit, other than an 
 action or suit In-ought by the assignees for any debt or demand for 
 which the bankrui)t might have sustained an action had he not 
 been adjudged bankrupt, and whether at the suit of or against the 
 assignees, no proof shall be required of the petitioning creditor's 
 debt, or of the trading, or act of bankruptcy, respectively, unless 
 notice be given that these matters will be disputed.^ 
 
 It was held under the old law, that where the defendants to a 
 suit, brought by the assignees of a bankrupt, were infants, they 
 would be entitled to dispute the validity of the bankruptcy, with- 
 out giving the notice required by the Act. This was decided by 
 
 1 12 & 18 Vic. c. 106, § 157. Tliis sec- 
 tion applies only to the case of trustees 
 suing as plaintilFs, see Gordon i'. .lesson, 
 16 IJenv. 440; the {jr.'ictiei; witli respect to 
 trustees as defendants will lie stilted in tlie 
 next cliaptcr-; and see Man v. Kickets, 1 
 Phil. 617; .Mendh:ini v. Uobinson, 1 M. & 
 K. 217; Lloyd v. Waring, 1 (Joli. 5;J0. 
 
 2 For forms of motion paper and peti- 
 tion, see Vol. I[[. 
 
 « 12 & 13 Vic. c. 100, § 2.38; Taylor on 
 Evid. §§ 1477, Ib'iG. 
 * In re West, 3 De G., M. & G. 198. 
 
 6 12 & 1.3 Vic. c. 106, §§ 2.34, 23.5; Tiiy- 
 lor on Krid. §§ ].''.56 A., 15.'')!); I'emiell ?». 
 Ilonic, 3 Drew. .3:57; and see Leer. I)en- 
 nistonn, 29 IJcav. 46.'j, where Sir .lolin 
 Komilly M. K. lieltl the provisions to ho 
 inapplicable to the present practice in 
 ('hancery; hut. in exercise of the general 
 jurisdiction which tlic Court f)ossosse'* over 
 ph'adiiigs, gave the defendants (en days 
 from the date of the application, within 
 which to give notice of the intention to 
 dispute. 
 
 Cn. III. § 4. 
 
 No abate- 
 ment on 
 change of 
 trustee plain- 
 titf. 
 
 Former 
 prftctice, as to 
 proof in sup- 
 port of COBl- 
 
 mission. 
 
 Present 
 practice, as to 
 proof of the 
 adjudication. 
 
 Semhle, 
 infant (tofond- 
 ant cannot 
 dispute valid- 
 ity of bank- 
 ruptcv^ with- 
 out notice.
 
 66 SUITS BY PERSONS WHO ARE UNDER DISABILITY. 
 
 Oil. iii.§:.. Sir John Loach V. C. in the case of Bell v. Tinney^ in which a 
 bill was lilotl hy the assignees of a bankrupt to set aside a settle- 
 ment which liad been made by the banknii)t upon his wife and 
 chil<hvn. The words of the present statute seem to be sufficient 
 to meet such a case, and render it clear that, even as against 
 infont defendants, the Gazette shall be conclusive evidence of the 
 bankru]>tcy.'- 
 
 AMiore a plaintiff, suing under the former practice as assignee 
 in bankruptcy, had not been actually ai)iH)inted assignee at the 
 time of filing the bill, but before the hearing he was so appointed 
 as from a date antecedent to the filing of the bill, it was held that 
 he was entitled to maintain the suit.* 
 
 Section V. — Infants. 
 
 Disqualifica- ^^ comc now to the consideration of those disqualifications 
 tions that which incapacitate a person from maintaining a suit alone, but do not 
 from'suing'' prevent his suing, provided his suit be supported by another per- 
 *'°"®- son. Such disqualifications arise from Infancy, Idiocy, Lunacy or 
 
 imbecility of mind, and Marriage. With respect to infants, idiots, 
 lunatics, and persons of weak minds, the law considers that, by 
 reaaon of the immaturity or imbecility of their intellects, they are 
 incapable of asserting or protecting their OAvn rights, or of form- 
 ing a judgment as to the necessity of applying for protection or 
 redress to the tribunals of the country ; it therefore requires, that 
 whenever it is necessary that application should be made on their 
 behalf to a Court of justice, such application should be supported 
 by some person, who may be responsible to the Court that the 
 suit has not been wantonly or improperly instituted. With 
 respect to married women, their incapacity does not arise from 
 want of reason, but from the circumstance that, by the law of this 
 country, the property of all women in a state of coverture vests 
 in the husband ; the consequence of which is, that, as a general 
 rule, no suit can be maintained by the wife without her husband 
 being made a party. 
 
 In consequence of their incapacity, persons under disability are 
 
 ' unable to compromise their rights or claims, but where these rights 
 
 and claims are merely equitable the Court of Chancery may, in 
 
 general, order the trust property to be dealt with in whatever 
 
 mode it may consider to be for the benefit of cesiuis que trust who 
 
 1 4 Mad. 372. ing been duly adjudged a bankrupt and 
 
 2 And it is now provided that the pro- of the date of the adjudication. The 
 duction of a copy of the London (iazette Bankruptcy Act, 1869 (32 & 33 Vic. c. 71), 
 containing a copy of the order of the § 10. ,r. , ^ • i t- j t 
 CourtofUankruptcy adjudging tlie debtor 3 Barnard v. Ford, Camck v. toia, L. 
 to be a bankrupt, Is conclus-ive evidence R. 4 Ch. Ap. 247, L. JJ. 
 
 in all legal proceedings of the debtor hav-
 
 INFANTS. 67 
 
 are under disability ; and therefore has power to comi^romise such Ch. hi. § 5. 
 rights or claims.^ ^~" v ~' 
 
 In the present section, the attention of the reader will be Infancy: 
 directed to the peculiarities in the practice of the Court, arising 
 from the circumstance of the party, or one of the parties suing, 
 being an infont. 
 
 The laws and customs of every country have fixed upon partic- what it is. 
 ular periods, at which persons are presumed to be capable of acting 
 with reason and discretion. According to the law of this country, 
 a person is styled an infant until he attains the age of twenty-one 
 years, which is termed his full age.- 
 
 An infttnt attains his full age on the completion of the day which infancy ter- 
 precedes the twenty-first anniversary of his birth ; but, as the law '"'"f ^s the 
 
 •111 _£> • /• T 1 -1 '^^3' before 
 
 Will make no traction 01 a day, he may do any act which he is the 2ist anni- 
 entitled to do at full age, during any part of such day. Thus, it bTrth7°'^^^^ 
 has been adjudged, that if one is born on the 1st of February, at 
 eleven at night, and on the last day of January, in the twenty- 
 first year of his age, at one in the morning, he makes his will of 
 lands and dies, it is a good will, for he was then of full age,^ 
 
 Altliongh, for many purposes, an infant is under certain legal infants may 
 incapacities and disal^ilitics, there is no doubt that a suit may be ^"*'^*'° ^*"*^! 
 sustained in any Court, either of law or of equity, for the asser- 
 tion of his rights, or for the security of his property; and for this 
 purpose, a child has been considered to have commenced his exist- 
 ence as soon as it is conceived in the womb.'' Under such circum- 
 stances, it is termed in law an infant en ventre sa inere, and a suit «» ventre sa 
 may be sustained on its behalf; and the Court will, upon applica- suTtorertrain 
 tion in such suit, grant an injunction tp restrain waste fi-om being '"'aste; 
 committed on his property.^ In Bobinson v. Litton,'^ Lord Hard- 
 wickc seems to have considered, that the point that a Court of 
 Equity would grant an injunction to stay waste at the suit of an 
 infant en ventre sa mere, though it had often been said arguendo, 
 had never been decided ; but it seems that, though Lord Ilard- 
 wicke was not aware of the circumstance, sucli an injunction was 
 actually granted by Lord Keejicr Bridgman.' 
 
 But although an infant may maintain a suit for the assertion of 
 bis riglits, he can do nothing Avliich can l)ind himself to the per- , 
 
 1 Brooke V. Lord Mo'^tyn, 2 Do «., J. & (lark, .'i llnrring. 557; Iliiinlin v. Steplien- 
 S. 873, 415; lOJur. X. S. 1114, lll«;!in(l f<oli, 4 I )aiia, 5'.i7. As t.i fractions of a day 
 8ce ^iltoii r. Mill, ^5 L. .J. (Jh. 15G, V. C. and when thity will mid will not be re- 
 K.; Wall V. I{of,'er8, L. \i. 'J V.f\. 58, M. It. garded in the hiw, t^ee D'Ohrec, ex parte, 
 
 2 Jacob's Law Diet. tit. Iiifnnt. The 8 Sumner's Ves. 8.'), note («); Lester v. 
 up of miijorify of females is fixed by the (iarland, 15 id. 24H, note (.'5). 
 Constitution of Vermont at eighteen years. •• Sec Wallis c. Ilodson, 2 Atk. 117. 
 Young !■. Davis, ISrayt. 124; Sparhuwk v. ^ .See Musgravc v. I'arry, 2 Vern. 710; 
 BucI, !i Vt. 41. Storv Va\. I'l. § 59, note. 
 
 3 Salk. 44, 625; 1 Ld. liny. 480; 2 id. o 3 Atk. 20!», 211; sec also Wallis v. 
 1090; 1 I!la. (Jom. 403; 1 Jarman on Wills Hod.son, 2 Atk. 117. 
 
 (2d Am. ed.), 29; Herbert v. Torball, 7 i^utterel's case, cited Prec. Ch. 50. 
 
 1 Sid. 142; b. C. liaym. 84; State v.
 
 68 
 
 SUITS BY PERSONS WHO ARE UNDER DISABILITY. 
 
 Cm. III.§ ;.. 
 "- Y — ' 
 
 cannot sue 
 for spooilic 
 portbnnaiioo 
 of a contriict ; 
 
 must sue by a 
 next friend. 
 
 Bill filed 
 witliout next 
 friend, dis- 
 missed with 
 costs to be 
 paid by 
 solicitor ; 
 
 but, in some 
 cases, leave 
 will be given 
 to amend. 
 
 Who may be 
 next friend. 
 
 lonnniuH' of :uiy net ; mikI tlu'ix'iori", wlicrc iVoiu tlu' nattiro of tlie 
 (k'lnaiul iiiado by tlic infant it would lollow tliat, if tlio relief 
 souiiht were grantetl, the rules of mutuality would re(j[uire some- 
 thing to be done on his part, such a suit cannot be maintained. 
 Thus, it has been held tliat an infant cannot sustain a suit for the 
 specific performance of a contract : because, in such cases, it is a 
 general princii)le of Courts of Equity to inter]»osc only where the 
 remedy is mutual, and if a decree were to be made for a specific 
 performance, as prayed on the part of the infant, there would be 
 no ]iower in the Court to compel him to perform it on his part, 
 either by paying the money or executing a conveyance.^ 
 
 Although an infimt, as we have seen, is in general capable of 
 maintaining a suit, yet, on account of his supjjosed want of disci'e- 
 tion, and his inability to bind himself and make himself liable to 
 the costs, he is incapable of doing so without the assistance of 
 some other person, who may be responsible to the Court for the 
 proj)riety of the suit in its institution and progress,'^ Such person 
 is called the next friend of the infant ; and if a l>ill is filed on 
 behalf of an inflmt without a next fi-iend, the defendant may move 
 to have it dismissed with costs, to be })aid by the solicitor. In a 
 case, however, Avhere a bill was filed by the plaintiff as an adult, 
 and it was afterwards discovered that he was an infant at the time 
 of filing the bill, and still continued so, whereupon the defendant 
 moved that the bill might be dismissed, with costs to be paid by 
 the jilaintiff's solicitor, the Vice-Chancellor made an order that 
 the plaintiff should be at liberty to amend his bill, by inserting a 
 next friend.^ 
 
 When an infant claims a right, or suffers an injury, on account 
 of which it is necessary to resort to the Court of Chancery, his 
 nearest relation is suj)posed to be the person who will take him 
 
 1 Flight V. Bolland, 4 Russ. 298; Har- 
 grave v. Hargrave, 12 IJeav. 408 ; but see 
 Allen r. Davidson, 16 Ind. 416. 
 
 2 Story Eq. PI. § 57; Hoyt v. Hilton, 
 2 Edw. Cli. 202. riiere must be a next 
 friend for everj- application on behalf of 
 an infant, Cox v. Wright, 9 Jur. N. S. 981 ; 
 11 W. K. 870, V. C. K.; see also Stuart 
 V. Moore, 9 II. L. Cas. 440; 4 Macq. H. L. 
 1, 36 II.; 7 .Jur. N. S. 1129. An infant, by 
 being made party to a suit, becomes there- 
 by a ward of Court, Gj-nn v. Gilbard, 1 Dr. 
 & S. 356; 7 Jur. X. S. 91; and see lit 
 Hodge's Trui^t, 3 K. & J. 213; 3 .Jur. N. 
 S. 860. Where a plaintift' files a bill as an 
 infant, infancy is a material allegation, and 
 must be proved or admitted by the answer. 
 Boyd V. Boyd, 6 (iill & J. 25; see Shirley 
 V. Hagar, SBlackf. 228 and note; Hanly v. 
 Levin, 5 Mam. 227. 
 
 As to the time for appointing aprochein 
 ami. see Wilder v. Kiiiber, 12 Wend. 191; 
 Matter of Frits, 2 Taige, 374; Fitch v. 
 
 Fitch, 18 Wend. 513; Haines v. Oatman, 
 2 Douglass, 430. In Massachusetts, the 
 next friend will be admitted by the Court 
 without any other record than the recital 
 in the count. Miles v. Boydeii, 3 Pick. 
 213; see Genl. Sts. Mass. c. 109, § 7. See 
 also Trevet v. Creath, Breese, 12; Judson 
 V. Blaiichard, 3 Conn. 679. 
 
 " The law knows no distinction between 
 infants of tender and of mature years ; and 
 as no special authority to sue is requisite 
 in the case of an infant just born, so none 
 is requisite from an infanl on the ver^' eve 
 of attaining his majority." Parke B., Mor- 
 gan r. Thorne, 7 M.& W. 400,408; see 
 Fulton V. Rosevelt, 1 Paige, 178; Story Ecj. 
 PI. § 60. In England, a pruchein ami is 
 treated as an officer of the Court and re- 
 sponsible accordinglv. Morgan v. Thorne, 
 7 M. & W. 400. In this case, the rights 
 and duties of a prvc/iein ami are largely 
 discussed. 
 
 8 Flight V. Bolland, 4 Russ. 298.
 
 INFANTS. 
 
 69 
 
 under his protection, and institute a suit to assert his rights;^ and 
 it is for this reason that the person who institutes a suit on behalf 
 of an infant is termed his next fiiend. But, as it frequently hap- 
 pens that the nearest relation of the infant is the person who 
 invades his rights, or at least neglects to give that protection 
 to the infant which his consanguinity or affinity calls upon him to 
 give, the Court, in favor of infants, will permit any j^erson to 
 institute suits on their behalf; '^ and whoever thus acts the part 
 which the nearest relation ought to take, is also styled the next 
 friend of the infant, and is named as such in the bill.^ And 
 although an infant has a guardian assigned him by the Court, or 
 appointed by will, yet, where the infant is plaintiff, the course is 
 not to call the guardian by that name, but to call him the next 
 friend. But Avhere the infant is defendant, the guardian is so 
 called : and if the guardian be so called where the infant is plain- 
 tiff, it is no cause of demuiTcr.^ 
 
 Before the name of any person is used as the next friend of an 
 infant, he must sign a written authority to the solicitor for that 
 purpose, which authority is filed with the bill.^ 
 
 As any person may institute a suit on behalf of an infant, it 
 frequently occurs that two or more suits for the same purpose are 
 instituted in his name, by different persons, each acting as his next 
 friend ; in such cases, the Court will, where no decree has been 
 made in any of the suits, direct an inquiry to be made at chambers 
 as to which suit is most for his benefit ; and, when that point is 
 ascertained, will stay the proceedings in the other suits.'' Where 
 no decree has been made in any of the suits,'' and they are all 
 attached to the same branch of the Court, and none of them are 
 in the ]»aper for hearing, such inquiry will be directed on an ex 
 parte motion : ^ the Court being satisfied, in the first instance, with 
 the allegation that the suits are for the same purpose.^ Where the 
 suits are attaclied to different branches of the Court, an order 
 
 Ch. m. § 5. 
 
 « y ' 
 
 Where infant 
 has a 
 sniardian. 
 
 Written 
 authority to 
 act as next 
 friend, to be 
 filed with bill. 
 
 Inquiry 
 which of two 
 or more suits 
 for the in- 
 fant's benefit. 
 
 1 See Bank of the United States v, 
 Ritchie, 8 Peters. 128. 
 
 2 Storj' Va\. pi. § 58 n.; Andrews v. 
 Cradock, Prec. Cii. .'J76; see Cross v. Ooss, 
 8 Ueav. 4.")5. A defendant, however, may 
 not be next friend, Payne v. Little, 13 
 Beav. 114; Anon., 11 .Jur. 258, V. C. E. 
 
 8 Ld. Ped. 25. 
 
 * Toth. 173; AVvatf's P. R. 224; see 
 Holmes r. Field, 12 III. 424. An infant 
 may sue by his next friend, notwithstand- 
 ing he have a guardian, it tliC! puardlau do 
 not dissent. •Thomas ?•. I)ike, 11 Vt. 27.'i; 
 see Tra^k r. Stone, 7 Mass. 241. The 
 
 ffcneral fcuardian of inOints cannot file a 
 )ill ill bin own name to obtain possession 
 of the property of his wards. Hut he must 
 file it in the name of the infants, as their 
 next friend IJradlcy i'. Amidoii. 10 Paige, 
 235. It is commonly said, that in l]<iiiity 
 an infant must defend himself, as at Law, 
 
 by his guardian; but that he cannot sue 
 by his guardian, but only by his next 
 friend. l$y his guardian, is here to be 
 understood his guardian ad litem, admitted 
 bv the f'ourt for this purpose. Story Eq. 
 PI. § 58, note (3). The Court neveV ap- 
 points a guardian to prosecute tor, but 
 onlv to defend, an infant part}'. Priest 
 V. Hamilton, 2 Tyler, 44. 
 
 6 15 & IG Vic. c. 86, § 11. Ill an injunc- 
 tion case the authority was i)ermitted to 
 be tiled the day iifier an infirniiitioii. 
 Attoniev-tieiieral v. Murray, 13 W. K. (15, 
 V. (.'. Iv. For form of authority, see Vol. 
 
 in. 
 
 Ld. Red. 27; Mortimer v. West, 1 
 Swaiist. 35H; Storv F.i). PI. § 60. 
 
 ■ Kiindlc V. Pundle, 11 lUav. 33. 
 
 •* For forms of motion paper, and notice 
 of special motion, sci; Vol. 111. 
 
 Sullivan v. Sullivan, 2 Mer. 40. 
 
 Course where 
 suits attached 
 to diflerent 
 branches of 
 the Court.
 
 70 
 
 SUITS BY TEKSONS "^^^IO ARE UNDER DISABILITY. 
 
 Cn. ni.§ 
 
 Order for in- 
 quiry slioulil 
 1)0 in both 
 suits; 
 
 is no stay of 
 proceedings. 
 
 Where subse- 
 quent suit is 
 more beiieli- 
 cial tlian the 
 first. 
 
 After decree 
 in one of the 
 suits. 
 
 Where merits 
 equal, prior- 
 ity prevails. 
 
 Inquiry 
 Tchether a 
 suit is for the 
 benefit of an 
 infant. 
 
 must be olit.iinotl, in the first iiistnnoo, for tlic tr.msfer of one of 
 tl\o suits, so that thov may botli 1)0 before the same Judge ; ^ and 
 the order for the inquiry is obtained on speeial motion, of wiiieh 
 nt^tiee must be oivc-n to the other parties to the suits."'^ The order 
 for the inquiry shouhl be made in both suits, and does not of itself 
 stay the ])roeeedin2;s in the suits ; "' and tlie amendment of one of 
 the bills, pending the inquiry, does not stay the in(iuiry.* When 
 the result of the inquiry has been certified, any ap])lieation that 
 may be necessary is made by motion, on notice.^ Under special 
 circumstances, the Court may, upon motion, on notice, make an 
 order staying the suits, without directing an inquiry.'' 
 
 If upon the inquiry, it appears that, although it would be bene- 
 ficial to the infant to prosecute the first, yet it will be more bene- 
 ficial to him to prosecute a subsequent suit, the Court will stay the 
 first suit, and give the next friend his costs.^ Where a decree has 
 been made in any of the suits it is not usual to direct an inquiry,'^ 
 but the other suits will be stayed : liberty being given to each of 
 the next friends in the stayed suits to apply for the conduct of the 
 suit in Avliich the decree was made.^ When another next friend 
 takes upon himself to file a second bill, it is incumbent upon him 
 to show some defect in the first suit, or a decided preference in the 
 second ; if their merits are only equal, the priority must prevail.^ 
 
 As a check to the general license to institute suits on behalf of 
 infants, the Court will, upon the application of the defendant, or 
 of any person acting as next friend of the jdaintiflT for the ])urpose 
 of the application,^^ where a strong case is shown that a suit pre- 
 ferred in the name of an infant is not for the infant's benefit, or is 
 instituted from improper motives, direct an inquiry concerning the 
 propriety of the suit ; ^^ but an objection at the hearing to the pro- 
 priety of the suit was held too late.^^ If, upon such inquiry, it 
 
 1 This was the course pursued in Knight 
 V. Knight, L. JJ., and M. R., 29 June, 
 1859, and V. C Stuart, 29 June. 1859, 
 and 9 Nov. 1859. Compare Duffort v. 
 Arrowsmith, 5 l)e G., iM. & (J. 434. The 
 order for transfer is made by the L C. 
 or L. JJ.,and tlie M. R. if transferred from 
 or to the M. R. (5 Vic. c. 5, § 30), and by 
 the L. C'., or L. .IJ., alone, in other cases; 
 but the order will not be made, unless the 
 consent of the Judges from and to whom 
 the cause is transftrred is first obtained. 
 Such consent is usually signified, as of 
 
 ___course, on the matter being mentioned by 
 "^te counsel of the party moving. For- 
 merly, it would seem that the order for in- 
 quiry might be made by either Court, 
 without either of the causes being trans- 
 ferred, Sfarten r.liartholomew, 5 Heav. 372. 
 
 2 See Bond v. Barnes, 2 De (i , V. & J. 
 387. For form of notice of motion, see 
 Vol. TIT. 
 
 3 Westbv V. Westhy, 1 De G. & S. 410; 
 11 Jur. 764". 
 
 4 Goodale v. Gawthorne, 1 M'N. & G. 
 319, 323 ; but it is irregular, in such a case, 
 to obtain an order of course to amend, 
 Fletch^ V. Moore, 11 Beav. 617. 
 
 5 Staniland v. Staniland, M. R., 21Jan., 
 1864; and see Frost r. Ward, 12 W. R. 
 285, L. JJ. ; 2 De (i., J. & S. 70. 
 
 6 Starten v. Bartholomew, 6 Beav. 143. 
 
 7 Taylor v. Oldliam, Jac 527; but see 
 Harris v. Harris. 10 W. R. 31, V. C. K. 
 
 8 Keriyon v- Kenvon, 35 Beav. 300; and 
 see Frost v. Ward, 2 De G., J. & S 70; 
 Harris v. Harris, 10 W. R. 31, V. C. K. 
 
 9 Per Lord Cottenham, Campbell v. 
 Campbell, 2 M & C. 30; and see Harris 
 V. Harris, 10 W. R. 31, V. C* K. 
 
 10 Guy V. Guy, 2 Beav. 4G0. 
 
 11 Stevens v. Stevens, Mad. 97 ; Lyons 
 V. I'.'enkin, Jac. 259; Sinallwood v. Mutter, 
 9 Hare, 24. For form of notice of motion, 
 see Vol. HI. 
 
 12 Lacy V. Burchnall, Z N. R. 293.
 
 INFANTS. 
 
 71 
 
 appears that the suit is not for the benefit of the infant, either the Ch. hi. § 5. 
 proceedings will be stayed,^ or else, if there is no excuse for the ^ 
 
 fact of the suit haA'ing been instituted, the bill will be dismissed Dismissal of 
 with costs, to be paid by the next friend ; - and in the case of Sale inquiry. 
 V. Sale^^ where it apjjeared clearly upon affidavits that the suit was 
 commenced by the next friend, to promote his own views, and not 
 for the benefit of the infant, Lord Langdale M. R. summarily, and 
 without a reference to the Master, made such ail order. And 
 whei'e an api^lication was made, on behalf of the defendants, that Inquiiy as to 
 the next friend of the iufimt plaintiflT be restrained from further fj-je^^*," °^^ 
 proceeding Avith the suit, and for a reference to the Master to 
 appoint a new next friend to conduct it in his stead : which appli- 
 cation was supported by strong affidavits, to show that the suit had 
 in fact been instituted from improper motives, for the purpose of 
 benefiting the solicitor, at whose request the person named as next 
 friend (who was a stranger to the family, and had lately held the 
 situation of form servant or bailiff at monthly wages), had con- 
 sented to act as such, the Master was directed to inquire, not only 
 whether the suit was for the benefit of the infant, but whether the 
 next friend was a fit and proper person to be continued in that 
 character. The Master was also directed to inquire wiio would be 
 the proper person to conduct the suit, in case the next fiiend was 
 removed, and to report special cu'cumstances,* Where a decree is 
 made in the suit, it is irregular to direct an inquiry whether any 
 benefit has accrued to the infant from tlie suit ; so as to make the 
 answer to that inquiry depend on the result of the accounts 
 du'ected by the decree.^ 
 
 The result of the cases seems to be, according to the language of Result of the 
 Lord Langdale M. R. in Starten v. Bartholomew,^ that the Court ^^^^ 
 exercises a very careful discretion on the one hand, in order to 
 facilitate the proper exercise of the right which is given to all per- 
 sons to file a bill on behalf of infants ; and on the other, to pre- 
 vent any abuse of that right, and any wanton expense to the 
 prejudice of infants." 
 
 No inquiry, however, as to the ])roi)riety of tlie suit, will be 
 
 1 Ld. Red. 27; see also Da Costa r. Da 
 Costa, 3 P. W. 140; Richardson v. Miller, 
 1 Sim. 133; Fulton f. Kosevelt, 1 I'aige, 
 178; Rowen v. Mley, 1 Edw. Ch. 148; 
 Story E<|. I'l. § m. In Da Costa v. Da 
 Costa, the inr|uiry was directed upon a 
 petition; but the modern practice is to 
 apply to the Court upon motion, of which 
 notice is given to the next friend; see, 
 however, Anderton v. Yates, 6 De G. & S. 
 202. 
 
 2 Fox e. Suwerkrop, 1 Beav. 588. 
 
 8 1 Heav. 58'!; see also (juy i'. Guy, 2 
 B^av. 400; .Staniltind v. Staniland, ante, 
 p. 70. 
 
 * Nalder v. Hawkins, 2 M. & K. 243; 
 
 Towsey p. (Jroves, 9 Jur. N. S. 194; 11 
 VV. li. 252, V. C. K.; see also Clayton 
 V. Clarke, 2 (liff. 57.5; 7 Jur. N. S. 562; 
 9 W. k. 718, L. J.T.; and Raven v. Kerl, 
 
 2 Phil. 6!)2; Gravntt v. Tann, 1 W. N. 
 327; 16 W. U. 83, M. R.; W. N. (180(5) 
 405, L. .JJ. 
 
 6 Clavton V. Clarke, 3 De G. F. & .J. 
 682; 7 .iur. N. S. 562; 2 Giff. 575; 7 Jur. 
 N. S. 252. 
 
 « 6 Reav. 144 ; and see Clayton v. Clarke, 
 
 3 De (;., F. & J. 682; 7 Jur. N. S. 562; 2 
 (Jiff. 576; 7 .Iur. N. S. 252. 
 
 " Sft! Miitter of Frits, 2 Paige, 374; 
 Waring r. Crane, Paige, 79.
 
 SUITS BY PERSONS WHO ARE UNDER DISABILITY. 
 
 I'll. in.§r.. 
 
 liiquiiy not 
 iXrunlotl on 
 application of 
 tlio next 
 triond : 
 
 unless made 
 in another 
 suit. 
 
 » )t" strikinij 
 out the name 
 of an iiit'ant 
 plaintitV, and 
 niakin.i: him 
 defendant : 
 
 in what cases 
 proper. 
 
 Infant bound 
 by decree, in 
 suit on his 
 behalf: 
 
 but not his 
 inheritance, 
 by any 
 discretionary 
 »ct. 
 
 ordcMVtl ;it tlie instigation ol" the next frieml liiinsclf; bocuise the 
 Court considers, t]i:it in connnencing a suit, tlie ne.\t friend under- 
 takes, on his own part, that the suit lio has so connnenced is for 
 the benefit of the infant.^ This rule, nevertlieless, uiiplies only to 
 cases where an application is made for such an inquiry in the cause 
 itself; if there is another cause pending by which the infant's 
 projKMty is subject to the control and disposition of the Court, 
 such an inquiry is not only ])erniitted, but is highly proper, when 
 fairly and bond fide made, and may have the effect of entitling the 
 next friend to repayment of his costs out of the infant's estate, 
 even though the suit should turn out unfortunate, and the bill be 
 dismissed Avith costs." 
 
 If an infant is made a co-plaintiff with others in a bill, and it 
 appears that it ^y\\\ be more for his benefit that he should be made 
 a defendant, an order to stiike his name out as plaintiff, and to 
 make him a defendant, may be obtained upon motion or summons, 
 on notice in either case;'* and an infant heir-at-law, against whose 
 estate a charge is soiight to be raised, ought to be made a defend- 
 ant, and not a plaintiff, although he is interested in the charge 
 when raised ; and that, where an infant heir had, under such cir- 
 cumstances, been made a co-plaintifl^ Lord Redesdale ordered the 
 cause to stand over, with liberty for the plaintiffs to amend, by 
 making the heir-at-law a defendant instead of plaintiff, and there- 
 upon to prove the settlement anew^ against him as a defendant.* 
 The reason given for this practice is, because an infant defendant, 
 where his inheritance is concerned, has in general a day given him, 
 after attaining twenty-one, to show cause, if he can, against the 
 decree, and is in some other resi)ects privileged beyond an adult ; 
 but an infant plaintiff has no such privilege, and is as much bound 
 as one of full age.^ In amicable suits, however, it is often an 
 advantage to make an infant the plaintiff; because he may have 
 such relief as he is entitled to, though not prayed for.^ 
 
 Although, however, an infant is, in general, bound by a decree 
 in a cause in which he himself is plaintiff, yet there is no instance 
 of the Court binding the inheritance of an infant by any discre- 
 tiomiry act : from this princii)le it follows, that where an inflxnt 
 
 1 Jones t). Powell, 2 Mer. 141. Butaref- 
 erence will be directed, as to the propriety 
 of the suit, upon the petition and affidavit 
 of the infant that the suit was commenced 
 without his knowledge, and that he be- 
 lieved it to be jL^roundless. Garr i". Drake, 
 2 .John. Ch. 542. 
 
 2 Taner v. Ivie, 2 Ves. S. 466. 
 
 8 Tappen v. Norman, 11 Ves. 56.3; see 
 Le Fort v. Delafield, 3 Edw. Ch. 32. For 
 forms of notice of motion and summons, 
 see Vol. III. 
 
 4 I'lunket V. Joice, 2 Sch. & Lef. 159. 
 
 5 Lord Brook v. Lord Hertford, 2 P. 
 
 Wms. 518; Gref^ory v. Molesworth, 3 Atk. 
 626; .see also Morison v. Morison, 4 M. & 
 C. 216. The practice of giving infants a 
 day to show cause is now nearly obsolete; 
 but the present state of the law on this sub- 
 ject will be more suitablj' stated in the 
 future chapter concerning infant defend- 
 ants; see 7Jos<, Chap. IV. § 10; and see 
 Seton,419, 686-689, and cases there cited, 
 c See/wsi, p. 73. A decree against an 
 adult as if an infant, will not bind him, 
 Snow V. Hole, 15 Sim. 161; Green.*. 
 Badley, 7 Beav. 271, 273.
 
 INPANTS. 
 
 73 
 
 heir is plaintiff, it is not the practice to estabUsh the w-ill, or to Cii. II I. §5.^ 
 dechire it well proved ; although, if there be no question raised *■ 
 
 concerning its validity, the Court will in many respects act upon 
 it.i According to this doctrine, in Lord Brooh v. Lord Hertford, P^J"^''^^^^ '"^ 
 above referred to, which was the case of a bill filed by an infint partition, 
 plaintiff for a partition against a co-tenant in common, although 
 the Court decreed a partition, it would not direct any conveyance 
 to be made until the infant plaintiff attained twenty-one ; ^ and so 
 in Taylor v. Philips^ where it has been referred to the Master to 
 see whether certain proposals, which had been made as to the sur- 
 render of a copyhold estate by the infant plaintiff, were reasonable, 
 and for the infant's benefit, and the Master reported that they were 
 so, the Court, nevertheless, would not make the order for the sur- 
 render, without inserting the words "without prejudice to the 
 plaintiff, the infont, after he shall attain the age of twenty-one 
 years." * 
 
 In sreneral, hoAvever, where decrees are made in suits by infant Unusual now 
 
 . 1 . ^ 1 c to pve infant 
 
 plaintiffs, it is not usual to give the mtant a day to show cause.*" plaintiff a day 
 
 When a day is given to an infant plaintiff to show cause against ^° f}'°^ 
 a decree after he comes of age, the }>roi)er course ap})ears to be to j^ ^^^^ 
 have the cause reheard ; for which purpose he must, within the manner cause 
 period appointed by the decree, present a petition of rehearing.® 
 
 Though an infant is, in. ordinary cases, bound by the effect of Infimt not 
 any suit or proceedings instituted on his behalf, and for his benefit, niistakes in 
 vet if there has been any mistake in the form of such suit, or of fo™ ?/ suit, 
 the proceedings under it, or in the conduct oi them, tlie Court conduct: 
 will, upon a])plication, permit such mistake to be rectified." Thus, and may have 
 an infant jtlaiiitift'may have a decree upon anymattei- arising from |'^e,[tftie*i'jo 
 the state of his case, though he has not particularly mentioned though not 
 and insisted upon it, and j)rayed it by his bill ; and accordingly, 
 where a bill was filed on behalf of an infant, claiming, as eldest 
 son of his grandfather's heir-at-law, the benefit and possession of 
 an estate, and to Iiave an account of the rents and profits, and for 
 general relief; and, uj)on tlie hearing, an issue was directed to try 
 whether liis father was legitimate, which the jury found he was 
 not, so that the ])laintiff'8 claim, as lieir-at-law, was defeated : he 
 was yet allowed to set up a claim to. jiart of the estate, to which 
 it appeared that lie was entitled under certain deeds executed l)y 
 his grandfatlier, 1 lilt wliidi cl.iiiii \v;is in no way r:iised or insisted 
 
 1 Hills V. Hills, 2 Y. & (J. C. C. .327. Bee Ludy Kflingham v. Sir .Tohn Napifr, 
 
 2 Thf Court has now power, under the 4 IJro. 1'. <'. ed. Toml. .'i40; Sir .1. N.i- 
 Tnistee Act, to declare the iiifiint a IrusU^e, pier r. Lady KOiiigliam, 2 1'. Wins. '1()1; 
 "and to vf'st Ilic lands, Uowni r. Wriglit, .Slos. 07, lor lui cxceptidii to this rule, un- 
 4 l)e (;., M. & S. 20.'); pcf .Si-ton f)71, e< dor vcrv ])cculiar circuuistames. 
 «e</.,and/;".s<, Chap. XXVHI. § 1. O Wyatt's 1'. It. 22.5; see anl<\ p. 72, 
 
 ^ 2 Vfs. S. 2:j. n (5). 
 
 .•• IJelt Supt. to Ves. S. 259. 7 Story Eq. I'l. § 59. 
 
 * Gregory v. Molesworth, 3 Atk.C20 ; Init 
 
 prayed for;
 
 74 
 
 SUITS BY PERSONS WHO AKE UNDER DISABILITY. 
 
 Cii. HI. § 
 
 but bound by 
 deviations 
 from practice, 
 bi'iii'i jide 
 assented to; 
 
 at least if 
 sanctioned by 
 the Court. 
 
 Semble, infant 
 could not 
 concur in case 
 for opinion of 
 a Court of 
 Law : 
 
 but may con- 
 cur in special 
 case, under 
 Sir G. Tur- 
 ner's Act. 
 
 Next friend 
 need not be a 
 person of 
 substance. 
 
 Upon by his hill, :iltlu)Uiih the Court sjiid it might have been other- 
 Aviso it" ho liad been adult.^ And Avhere the jtersons acting on 
 behalf of an infant jilaintitf, l)y mistake make submis.sions or oilers 
 on behalf of (he infmt, whieli the infant oiight not to have been 
 oalletl npon to make, the Court will not sutter the infant to be 
 prejudieed. Thus, Avhere an infant j)laintitf had, by mistake, sub- 
 mitted by her bill to pay off a mortgage, wliich she was not liable 
 to pay. Sir J. Jekyll M. II. said he must take care of the infant, 
 and not sufter her to be caught by any mistake of her agent ; ^and, 
 therefore, the infant M'as allowed to amend her bill, on jjaying the 
 costs of the day.^ It has been saiil, however, that in matters of 
 practice, infants are in general as much bound by the conduct of 
 the solicitor acting bond Jide in their behalf as adults ; * but it may- 
 be doubted whether they would now be bound, unless the sanction 
 of the Court had been previously obtained ; for it seems that a 
 next friend or guardian cannot consent to the mode of taking evi- 
 dence, or of any other procedure, without first obtaining the sanc- 
 tion of the Court, or of the Judge in chambers.* The application 
 at chambers is made by summons.^ 
 
 It seems to have been, the opinion of Lord Eldon, that facts 
 could not be stated in a case for the opinion of a Court of Law so 
 as to bind infants ; ^ but this is not now of any practical importance, 
 as the Court is now prohibited from directing a case to be stated 
 for the opinion of any Court of Law.'' 
 
 By Sir George Turner's Act,^ infants are enabled to concur in a 
 special case. 
 
 It has been before stated ° that any person, who may be willing 
 to undertake the office, may be the next friend of an infant ; and 
 it seems that even a person who has been outlawed in a civil action 
 may fill that character.^" Though it has been doubted," it is now 
 clear, as we have already seen,^^ that a next friend of an infant 
 need not be a person of substance ; ^^ and though there does not 
 
 1 Stapilton v. Stapilton, 1 Atk. 2, 6; 
 see also I)e Manneville v. De Maiineviile, 
 10 Ves. 52, 59; Walker v. Taylor, 8 Jur. 
 N. S. 681, H. of L. 
 
 2 Sfrle «. St. Elov, 2 P. Wms. 386. 
 
 3 Tillot^on r. Hiirgrave, 3 Mad. 4p4; 
 Wall V. Hushby, 1 I'.n.. C. C. 484, 487. 
 
 * Ord. 5 Feb , 1861, r. 24. 
 
 5 For form of summons, see Vol. III. 
 
 6 Hawkins r. Luscombe, 2 Swanst. 392. 
 
 7 15 &. 16 Vic. c. 86, § 61. 
 
 8 13 & 14 Vic. c. 35, §§ 4, 6. 
 '■> A7ite, pp. 37, 69. 
 
 10 Glib. For. Horn. 54. 
 
 n Ld. Red 26; Turner v. Turner, 1 Stra. 
 708; 2 P. Wms. 297; 2 Eq. Ca. Ab. 238, 
 pi. 18. 
 
 12 Ante, p. 37. 
 
 13 Anon., 1 Ves. .J. 410 ; Squirrel v. Squir- 
 rel, 2 Dick. 765; Fellows v. Barrett, 1 
 
 Keen, 119; Davenport v. Davenport. 1 S. 
 & S. 101; and see observations of V. C. 
 Wood in Ilitid v. Whitmore, 2 K. & J. 458. 
 In Smith v. Floyd, 1 Pick. 275, it was held 
 tliat lui infant phiintitt", who sues by y^ro- 
 cliiiit ami, is, under the statutes of Massa- 
 chusetts, liable for costs; and in Crandall 
 V. Sbiid, 11 Met 288, it was held that a 
 prochein ami, as such, is not liable for costs; 
 although it was suggested in the latter 
 case by Wilde J. that this seems to be 
 contrary to the Knglisli practice. See 
 also Houche v. llyan, 3 Blackf. 472. But 
 where a person, who prosecutes a suit in 
 the name of an infant, as his next friend, 
 is insolvent, he will be compelled, on the 
 application of the defendant, to give se- 
 curity for costs. Fulton v. Rosevelt, 1 
 Paige, 178; Dalrvmple v. Lamb, 3 Wend. 
 424. In Crandall v. Slaid, 11 Met. 288,
 
 INFANTS. 
 
 75 
 
 appear to be any case where an infant has been allowed to sue by 
 his next friend in forma pauperis^ it would seem that such a course 
 would be permitted, on a special case being made.^ 
 
 If the next friend of an infant does not do his duty, or if any 
 other sufficient ground be made out, the Court will, on motion or 
 summons, on notice,- order him to be removed.^ Thus, when the 
 next friend will not proceed with the cause, the Court will change 
 him.* And although a next friend may not have been actually 
 guilty of any impropriety or misconduct, yet, if he is connected 
 with the defendants in the cause in such a manner as to render it 
 improbable that the interest of the plaintiff will be properly sup- 
 jjorted, the Court will remove such next friend, and appoint another 
 in his place.^ 
 
 In Peyton v. Bond^ it appeared that the solicitor for the infants 
 acted for the father also, and had been for ten years his confiden- 
 tial solicitor, and Sir Anthony Hart V. C. said, that although he 
 was warranted by high authority in saying that in family suits it 
 was proper that the same solicitor should be emjDloyed for all par- 
 ties, yet the Court will Avatch with gi-eat jealousy a solicitor who 
 takes u[)on himself a double res])onsibility ; and if it sees a chance 
 of his miscarrying, will take care, where the plaintiffs are infants, 
 that .he shall not stand in that relation to a defendant under cir- 
 cumstances of very adverse interest;* and, upon this ground, his 
 Honor decided that the solicitor of the father ought not to continue 
 in the character of solicitor of the next friend. 
 
 It may be here remarked, that the next friend of an infixnt can- 
 not be permitted to act as receiver in the cause ; and 'that where 
 an application was made on behalf of jnfant plaintiffs, that the 
 next friend might be at liberty to go before the IVfaster, and pro- 
 pose himself to be the receiver. Sir Thomas Plumer V. C. refused 
 to accede to the motion, although it was consented to : observing, 
 that it was the duty of the next friend to watch the accounts and 
 conduct of the receiver, to be a control over him ; and that the two 
 characters were inc()in|»atible, and could not be united.'' 
 
 If tlic next friend of an infant takes any proceeding in the 
 
 Ch. III. § 5. 
 
 Infant may 
 sue b}^ next 
 friend, in 
 forma 
 pauperis, 
 semble. 
 
 Next friend 
 removable for 
 non-pertbrm- 
 ance of his 
 duty, 
 
 or having ad- 
 verse mterest. 
 
 Where same 
 solicitor acts 
 for next 
 friend, and for 
 defendants. 
 
 Next friend 
 cannot be 
 receiver in 
 the cause. 
 
 290, it wiis HMid by Wilde J. tiiat in nil 
 cascH, if the del'eiidaut doubts tbe ability 
 of the infant to pay costs, tlie /,>ro(7/<-4/t (uni 
 mtij- be compclli-il U> indorse the writ, or 
 to procure ii suHicicut indorscr, or to be- 
 come non^'uit. Hut see Feneley v. Ma- 
 houv, 2] I'ick. 212, 214. 
 
 I'Lluds.v (• Tvrrell, 24 Beav. 124; 3 
 Jur. N. S."l014; 2 iJle G. & J. 7; Atite, 
 p. 39. 
 
 2 For forms rif notice of motion and 
 BummoiiH, see Vol III. 
 
 3 iCussfli r. Sbarp, 1 .lac & W. 482; 
 Lander v. Iiigersoll, 4 Hare, 6'J6. 
 
 * Ward V. Ward, 3 Mer. 706. 
 fi Peyton r. I'.ond, 1 Sim. 390; Bedwin 
 V. Asprey, 11 Sim. 530; Towsev v. (iroves, 
 
 9 .Jur. N. S. 194; 11 W. K. 252, V. C. K.; 
 and see Gee v. Gee, 12 W. K. 187, L. .1.1.; 
 SandlVmi v. Sandfonl, 9 .lur. N. S. 398; 11 
 \V. U. 33G, V. <;. K.; Llovd v. Davies, 
 
 10 .lur. N. S. 1041, M. ii; Walker v. 
 Crowder, 2 Ired. Ch. 478; I'illani u. Hee- 
 bve. 1 W. W. 208; 14 W. U. 94H, V. C. K. 
 
 'o 1 Sim. 391. 
 7 Stone V. Wishart, 2 Mad. 04. 
 
 Next friend 
 misconduct- 
 ing himself.
 
 76 
 
 SUITS BY PERSONS WHO ARE UNDER DISABILITY. 
 
 Cii. III. 5: 
 
 Next friend 
 or his wife 
 may now be 
 a witness. 
 
 Next friend 
 cannot retire 
 without giv- 
 ing security 
 for costs 
 already 
 incurred. 
 
 Inquiry as to 
 propriety' of 
 substitution 
 of next friend, 
 sometimes 
 directed. 
 
 t'Mu^i" \\]iicl\ is incoinpatiMi' with (lie advnncciiu'iit of the suit, 
 sui'h as moviiiii; to dist'liarge an attachment issued by tlie solicitor 
 in the regular progress of the cause, the Court Avill direct an 
 inquiry whether it is fit that such next friend should continue in 
 that ca])acity any longer.^ But so long as the next friend con- 
 tinties such on the record, he is considered by the Court to be 
 responsible for the conduct of tlie cause ; and for this reason. Sir 
 Thomas I'lumer M. R., on a petition being presented to him on 
 the part of the infant plaintiff", com])laining of great delay in ])rose- 
 cuting the decree, refused to refer it to the Master to inquire into 
 the cause of the delay, and to appoint proper persons on behalf of 
 the infant to assist in taking the accounts: saying, that if there had 
 been misconduct, he would assist the petitioner, but that it must 
 be in a regular way.^ 
 
 The next friend of an infant plaintiff" was considered so far 
 interested in the event of the suit, that neither he nor his wife 
 could be examined as a witness;'' but this disability has been 
 removed, by the recent statutes for improving the law of evi- 
 dence.^ 
 
 In general, a next friend will not be allowed to retire without 
 giving security for the costs already incurred.^ And where the 
 new next friend proposed in the notice of motion to be substituted, 
 in the room of the one to bo withdrawn, was alleged to l)0 in indi- 
 gent circumstances, and an inquiry was asked for as to whether he 
 was a proper person to act in that capacity, Avith a view to his cir- 
 cumstances. Sir John Leach Y. C. stated, as his reason for refusing 
 such inquiry, that he would be at liberty to file a new bill.'' 
 
 In Helling v. Melling^ his Honor refused to allow another next 
 friend to be substituted for the one who had up to that time con- 
 ducted the suit in that capacity, and who desired to withdraw 
 himself, without a previous reference to the Master, to inquire 
 whether it was for the benefit of the infant that such substitution 
 should take place, as it might be that the suit was improper, or 
 had been improperly conducted ; and the next fi-iend was not thus 
 
 1 Ward V. Ward, 3 Mer. 700. 
 
 2 liussell V. Sharp, 1 .Jac. & W. 482. 
 
 3 Head v Head, 3 Atl<. 511. But it has 
 been held that a person who i^^ made a 
 prochein ami to an infant witiiout his 
 
 knowledge or consent is not disqualified 
 from being a witness. Barwell v. Corbin, 
 1 Rand. 131; see Lupton v. Lupton, 2 
 Jolm. Cii. 014. In a case where it ap- 
 peared that the next friend of an infant 
 plaintiflf was a material witness, the Court 
 allowed another person to be substituted 
 in his place, upon his giving security for 
 the costs previously incurred. Golden v. 
 Haskins, 2 Edw. Ch. 311 ; Helms v. Iran- 
 ciscus, 2 Dland, 544. 
 
 4 & 7 Vic. c. 85 ; 14 & 15 Vic. c. 99, 
 § 2; 10 & 17 Vice 83. 
 
 5 Ld. \U'a\- 27, note 2; Golden r. Has- 
 kins, 3 Edw. Ch. 311. It is sometimes 
 made a term of the order to substitute, that 
 the substituted next friend shall give se- 
 curity, to be approved of by the .Judge if 
 the parties differ, to answer the defend- 
 ant's costs to tliiit time, in case any shall 
 be awarded. See Seton, 1252, No. 6. 
 The security usually given is a recogniz- 
 ance. 
 
 6 Davenport v. Diivcnport, 1 S. & S. 
 101. 
 
 7 4 Mad. 201.
 
 INFANTS. 
 
 77 
 
 to escape from costs to which he might be liable. And in Har- 
 rison V. Harrison^ Lord Langdon M. R., observed, that " any per- 
 son may commence a suit as next friend of an infont, but when 
 once here in that character, he will not be removed, unless the 
 Court is informed of the circumstances and respectability of the 
 party proposed to be substituted in his i:)lace, and that such person 
 is not interested in the subject of the suit;" and, accordingly, he 
 required the production of an affidavit to that effect, before an 
 order was made to substitute a new next friend : though the appli- 
 cation was not opposed by the defendants. The application to 
 substitute a next fi-iend in lieu of one desirous to retire, is made by 
 summons, on notice to the defendants.- 
 
 "When, in consequence of the death, incapacity,^ or removal of 
 the next friend of an infant, jjending the suit, it becomes necessary 
 to appouit a new next friend, the proper course of proceeding is, 
 for the solicitor of the plaintiff to apply to the Court, or Judge at 
 chaml)ers, for an order ai>pointing a new next friend in his stead,* 
 whose fitness, as we have seen, must be proved ; '•' and after such 
 appointment, the name of the new next friend shovald be made use 
 of in all subsequent proceedings Avhere the former one, if alive, 
 would have been named. Before the defendant has appeared, the 
 name of the new next friend may be introduced into the record, 
 under an order as of course to amend ; and after appearance the 
 same may be done, where the new next friend is appointed in the 
 place of a deceased next friend," if the application for the order is 
 made by the solicitor wlio acted in the suit for the deceased next 
 friend. In other cases the order may be obtained on the plaintiff's 
 petition, as of course, if the defendant's solicitors subscribe their 
 consent thereto ; if not, by motion upon notice, or by summons at 
 chambers/ If the i)laintiff's solicitor omits to take this step within 
 a reasonable time, the defendant may a])j)ly to the Court by motion, 
 upon notice,*' for an order directing the approval of a new next 
 friend, and for the insertion of his name as such in the proceedings.^ 
 In T^arfje v. DeFerre^'^ the new next friend Avas a})pointed by the 
 Cliief Clerk's certificate, witliout further order. 
 
 The order appointing the next friend must, in every case, be 
 
 Ch. III. § 5. 
 
 - 1 5 Heav. 130; and see Lander v. Ingcr- 
 Boll, 4 Hare, .Oite. 
 
 2 For form of summnnH, sec Vol. III. 
 
 8 A female next friend will, on inarriafje, 
 become incapacitated to net further as 
 such. 
 
 ■« Westl.y V. Westby, 2 C I'. Coop. t. 
 Cotl. 211. 
 
 << Harrison v. Harrison, 5 lieav. 130. 
 
 •5 I'or forms of motion paper and jicti- 
 tion, see Vol. III.; and for the order on 
 motion, see Seton, 1252, No. /i. 
 
 ■^ l'"or forms of notice of motion and sum- 
 
 mons, see Vol. III.; and for the order, see 
 Seton, 1252, No. 6. 
 
 8 For form of notice of motion, see Vol. 
 III. 
 
 '•* As to the former practice where the 
 order was obtained in vx jmrle motion: 
 see Lancaster v. Thornton, Ami). 30H; 
 Ludolph I'. Saxhj', ibuL; 12 Sim. 351; 
 (^)untess of Shelhurne v. Ld. Iiichi(]iiin, 
 Anilj. 3<JH, II.; 12 Sim. 352; Uraccy v. 
 Sandiford, 3 Mad. 4(38; (Jlover «. Webber, 
 12 Sim, 351. For form of motion paper, 
 see V.d. III. 
 
 10 IJniithwnite's I'r. 658. 
 
 Proceedings 
 on death or 
 removal of 
 next friend. 
 
 A\'here plain- 
 till' omits to 
 name a new 
 next friend. 
 
 Sen'ice 
 and entry of 
 order.
 
 SriTS nV TEHSONS WHO AKE UNDEll DISA15TLITY. 
 
 Cii. lll.§ 
 
 Next frioiul 
 necessary mi 
 every appli- 
 eatioii by in- 
 fant plaiiititl'. 
 
 Etteot on suit 
 of infant 
 plaintitV 
 attaining 
 twenty-<ine: 
 
 where he 
 adopts suit ; 
 
 wherv he 
 repudiates it; 
 
 liability of 
 next friend 
 to costs. 
 
 Infant repu- 
 diating suit, 
 not liable to 
 costs, though 
 next friend 
 die. 
 
 Costs of 
 defendant's 
 
 served on the solicitors of the (lefenchnits in the cause, and be left for 
 entry in the c-ause books kept by the Clerks of Records and Writs.^ 
 
 Kefore appointing a nt'\\ next friend, the C'ouit or Judge requires 
 to be satisfied of his willingness to act; and an authority signed 
 by such next friend should be i)roduced and tiled.- 
 
 On any application on behalf of an infant plaintilf, a next friend 
 must be named for the purposes of the api>licalion.^ 
 
 Where a bill has been tiled in the name of an infant, his coming 
 of age is no abatemetit of the suit ; * but he may elect whether he 
 will proceed Ayith it or not. If he goes on with the cause, all 
 future proceedings may be carried on in his own name, and the bill 
 need not be amended or altered ; ° he will also be liable to all the 
 costs of the suit, in the same manner as he would have been had 
 he been of age wdien the bill w^^s originally filed," If he chooses 
 to abandon the suit, he may move to dismiss it on payment of 
 costs by himself,'^ or he may refrain from taking any step in it ; but 
 he cannot comi)el the next friend to pay the costs, unless it be 
 established that the bill was hn]n-oi)erly tiled.^ Therefore, where 
 an infant, on attaining twenty-one, moved to dismiss a bill filed on 
 his behalf, with costs to be paid by the next friend, the Court 
 refused to make the order ; but directed the bill to be dismissed, 
 on the late infant plaintiff giving an undertaking to pay the costs, 
 and the costs of the next friend.'-* 
 
 If the infant refrains from taking any step in the suit, he cannot 
 be made liable to costs ; thus, where the next friend of an infant 
 died during the minority of the plaintiff, who, after he came of 
 age, took no step in the cause, and the defendant brought the 
 cause on again, and procured the bill to be dismissed, such dis- 
 missal was without costs ; because the plaintiff, not having been 
 liable to costs during his infancy, and never having made himself 
 liable by taking any step in the cause after attaining twenty-one, 
 and there being no next friend to be responsible for them, there 
 was no person against wdiom the Court could make an order for 
 payment of costs.^° In that case, the next friend, if living, would, 
 of course, have been liable to the payment of the costs to the 
 
 1 Braithwaite's Pr. 558. 
 
 2 For form, see Vol. III. 
 
 3 Cox V. Wright, 9 Jur. N. S. 981; 11 
 TV. K. 870, Y. C. K.; and see Guy v. Guy, 
 2 Beav. 460; Furtado v. Furtado, 6 Jur. 
 227, as explained bv Cox v. WVigiit, 9 
 Jur. N. S. 081; 11 W. 1{. 870, V. C. K. 
 A notice of motion should be given by the 
 infant by the next friend, and not merely 
 bv the next friend. Pidduck v. Boultbee, 
 2"Sim. N. S. 223. 
 
 * Wviitt's I'. K. 225. 
 
 5 Wyatt's P. K. I Fowl. Ex. Prac. 421. 
 The title of the suit in such case, however, 
 is corrected, to read thenceforth thus : " A. 
 
 B., late an infant, by C. D., his next friend, 
 but now of full age, ])laiiititt'." 
 
 « Coop. Vjq. PI. 2'J; Waring v. Crane, 
 2 Paige, 79; Story Eq. PI. § 59. 
 
 7 Where a decree has been made, the 
 application should be :i special motion to 
 stay proceedings. J'or form of motion pa- 
 per, see Vol. III. 
 
 8 If the bill was improperly filed, the in- 
 fant may abandon the suit, and the costs 
 will be charged upon the next friend. 
 Waring v. Crane, 2 Paige, 79. 
 
 '■< Anon., 4 Mad. 461. 
 W Turner v. Turner, 1 Stra, 708; 2 P. 
 Wms. 297; Ld. lied. 26, n. t.; ai^d see
 
 INFANTS. 
 
 79 
 
 defendant : the general rule being, tliat the next friend shall j^ay 
 the defendant's costs of dismissing the plaintiff's bill ; and so, if a 
 motion is made on behalf of an infant plaintiff which is refused 
 with costs, such costs must be paid by the next friend.^ 
 
 Where an infant, on coming of age, repudiates the suit, that repu- 
 diation relates back to the commencement of the suit, over-riding 
 all that has been done in it.^ 
 
 An infant co-plaintiff, on coming of age, and desiring to repu- 
 diate the suit, if he takes any step, must move, on notice, not to 
 disiniss the bill, but to have his name struck out as co-plaintiff; ^ 
 and if the next friend requires it, the late infant's name must be 
 introduced in the future proceedings as a co-defendant.'* 
 
 Afler an infant sole plaintiff comes of age, his next friend ought 
 not to take any proceedings in the cause in the name of the plain- 
 tiff, even though they are consequential on former j^i-oceedings if 
 the suit is to be prosecuted ; ® but an infant co-i^laintiff, on coming 
 of age, will not be allowed to appear by another solicitor or coun- 
 sel, unless he has obtained an order to change solicitors.^ 
 . The rule above referred to, under which a next friend is held 
 liable to the costs of dismissing a bill, or of an unsuccessful motion, 
 is applicable only as between the next friend and the defendant in 
 the cause; for the Court is extremely anxious to encourage, to 
 every possible extent, those who will stand forward in the charac- 
 ter of next friend on behalf of infants," and will, wherever it can 
 be done, allow the next friend the costs of any proceeding insti- 
 tuted by him for the infant's benefit,^ out of the infant's estate, 
 provided he appears to have acted hondjide for the bi-nefit of the 
 infant. Therefore, Avhere a suit was instituted on behalf of an 
 infant, in which there was a decree made, under which the money 
 recovered was brought into Court, and put out for the benefit of 
 the infant plaintiff, and the defendant Avas ordered to ])ay the costs, 
 but ran away : u])on a motion by the solicitor of the jjlaiutilf (in 
 which the father, who was the next friend, and very poor, joined), 
 that hip^jt-osts miglit be paid out of the fund in Court, Lord King 
 granted the motion, but with some reluctance.® And in another 
 case, where a supplemental bill liad been filed on behalf of an infant, 
 for which there were a]»parent grountls, but which was eventually 
 
 Cn. III. § 5. 
 
 ' Y ' 
 
 motion to 
 dismiss. 
 
 Costs of 
 motion on 
 intiant plain- 
 tiff's belialf. 
 
 Repudiation 
 of suit by 
 plaintitf 
 relates back 
 to its institu- 
 tion. 
 
 Where co- 
 plaintiff, on 
 coming of 
 age, desires 
 to repudiate 
 suit. 
 
 Next friend of 
 sole plaintitf 
 not to proceed 
 after infant of 
 age. 
 
 Of next 
 friend's right 
 to costs out of 
 the infant's 
 estate ; 
 
 where a 
 defendant, 
 ordered to 
 pay the costs, 
 runs away; 
 
 where suit 
 dismissed 
 with cost. 
 
 Dunn V. Dunn, 7 De G., M. & G. 25; 
 1 Jur. N. 8, 122; 3 Drew. 17; 18 Jur. 10G8. 
 
 1 IJuckley v. Puckeridge, 1 Dick. 305. 
 Co.sfs must be paid by tlie next friend in 
 every instiince where there is no tnunda- 
 tion for the suit. Steplienson v. tStephcn- 
 8on, 3 Hayw. 123; Story Kq. I'l. § 5'J. 
 But see (Tandiiii f. Slaid, 11 Met. 288. 
 
 2 Dunn V. Dunn, 7 De (i., M. & G. 29; 
 1 .lur. N. S. 123, per L. .1. Turner. 
 
 8 Acres v. Little, 7 Sim. 138; Guy v. 
 
 Guy, 2 IJeav. 460; Cooke v. Fryer, 4 Beav. 
 13. l'"or form of notice of motion, see Vol. 
 III.; and for form of order, see Seton, 1253, 
 No. 8. 
 
 '» Mii'knell v. Bicknell, 32 Beav. 381; 
 y Jiir. N. S. (J33. 
 
 '> Brown r. Weatlierhead, 4 Hare, 122; 
 Brown v. Brown, 11 Heiiv. 502. 
 
 Swift r. (inizebrook, 13 Sim. 185. 
 
 7 Whittaker v. Marliir, 1 Cox, 286. 
 
 * ytaines v. Maddox, Mos. 31'J.
 
 80 
 
 SUITS BY TERSONS WHO ARE UNDER DISABILITY. 
 
 Cn. Ill.§r.. 
 
 Inquin- 
 
 vliethcr suit 
 i..r infant's 
 bom lit; 
 
 not directed 
 in the suit 
 itself, at next 
 friend's 
 instance. 
 
 Next friend 
 not deprived 
 of right of 
 costs, in con- 
 sequence of 
 mistake or 
 misapprehen- 
 sion; 
 
 but will not 
 be entitled to 
 costs, if suit 
 instituted 
 from improper 
 motives, 
 
 or due dili- 
 gence not 
 used to learn 
 the facts. 
 
 clu^nissod as against one of tlie defendants with costs, which were 
 paid by the receiver in the original cause, ui)on a petition by the 
 next friend to be allowed such costs out of the infant's estate in 
 the original cause, Lord Hardwicke made the order: observing, 
 that the next friend and the receiver had done notliing but what 
 any man would do in his own case : and that though it had turned 
 out uni'ortunately, the Court would not say that they ought to bear 
 the costs ; as if they were, nobody would undertake the manage- 
 ment of an estate for an infant.^ 
 
 An inquiry may be directed whether it is for the benefit of the 
 infant to proceed with a suit.'^ It seems, however, that such an 
 imjuiry will not be directed, on the application of the next friend, 
 in the suit respecting which the reference is sought,'' but that the 
 next friend must carry it on at his own risk ; which ai)pcars to be 
 a proper restraint to prevent suits of this description from being 
 rashly undertaken ; for as, on the one hand, the next friend, in case 
 a fund should be recovered by means of the suit, has, through his 
 solicitor's lien for his costs upon that fund,^ an adequate protection 
 fi'om losing the charge he may have been put to by means of the 
 suit, so the risks which he runs of losing those costs, in case the 
 suit should be unsuccessful, tends to make persons cautious in 
 undertaking proceedings of this nature on behalf of infants, with- 
 out having very good reason for anticii)ating a successful result. 
 
 Although the Court will so far encourage persons acting fairly 
 or bond fide to institute proceedings on behalf of infants, or to 
 protect them, when it is possible so to do, from all costs and 
 expenses Avhich they may incur by such step, a protection which 
 it will not suffer any degree of mistake or misapprehension to 
 dei)rive them of: ^ yet, if it should turn out that the next friend 
 has acted from improper motives, or merely to answer the pur- 
 poses of spleen, the principle which guides the Court in encourag- 
 ing an honest next friend, i. e., the anxiety to have the affairs of 
 infants properly taken care of, will involve a dishonest one in the 
 expenses of his own proceeding.*^ And so, if it shoifld appear 
 that, in the case of an infant, due diligence has not been exerted 
 to acquire a proper knowledge of the facts of the case, and 
 the bill should be dismissed, or an order discharged, upon facts 
 which, though not known when the bill was filed, or the motion 
 made, might have been known if proper inquiry had been made, 
 the next friend will not be allowed the costs out of the infant's 
 
 1 Taner v. Ivie, 2 Ves. S. 466; Cross v. 
 Cross. 8 lieav 455. 
 
 2 Taner v. Ivie, 2 Ves. S. 469. 
 
 3 Jones V. Powell, 2 Mer. 141; ante, 
 p. 72. 
 
 4 Staines v. Maddox, Mos. 319. 
 
 5 Whittak^r v. Marlar, 1 Cox, 286; An- 
 derton v. Yates, 5 De G. & S. 202. 
 
 6 Whittaker v. Marlar, 1 Cox, 286 ; and 
 see Cross v. Cross, 8 Beav. 456; Clayton v. 
 Cook, 3 De G., F. & .J. G82; 7 Jur. N. S. 
 562.
 
 INFANTS. 
 
 81 
 
 estate.^ Thus, -where it appeared that a writ of JVe exeat Hegiio 
 had been improperly obtained by the next friend, on motion sup- 
 ported by the affidavit of the infant plaintiff, by which the infant, 
 who was of the age of eighteen years, swore positively to facts 
 which it apjjeared he could not have known himself, but which he 
 could only have been told by other persons. Lord Rosslyn dis- 
 charged the order, and dii'ected that the next friend should j^ay the 
 costs of obtaining it.^ 
 
 There appears to be no doubt, that a soUcitor conducting a cause 
 on the part of an infant, has the same lien upon the money recov- 
 ered in the sixit by his means, and at his exj^ense, as he has in the 
 case of an adult ; ^ and, therefore, if the suit is successful, the next 
 fiiend is, in general, secure fi-om being j^ut to any charges on the 
 infant's behalf But it seems that a solicitor who obtains posses- 
 sion of paj^ers, as solicitor to the next friend, has not any lien upon 
 them by viitue of such possession.* 
 
 It is said, that where a legacy is given to an infant, the testator 
 makes it necessary to come into this court for directions how to 
 lay it out ; and that, therefore, such an api)lication ought to be 
 considered as an incmnbrance on the estate, and the costs must be 
 paid out of the assets/ This rule was acted upon by Lord Alvan- 
 ley M. R., in a case where the executors were plaintiffs, in which 
 case his Lordshij) said that, if the testator wishes to prevent the 
 costs of such a suit from coming out of his estate, he ought to give 
 the legacy to a tiaistee for the infant ; he, however, said that, for 
 the future, he should not give the costs in such a case : for since the 
 Legacy Act, 36 Geo. III. c. 52, § 32, the executor has nothing to 
 do but, under that Act, to jjay the legacy into Court, and then 
 he has done ; and the infant, when he comes of age, may j^etition 
 for it.® Before that Act, an executor could not safely pay an in- 
 fant's legacy >vithout a decree. 
 
 It is presumed that the rule above laid (h^Avn will not apply, so 
 as to prevent an infant legatee from receiving his costs, in case he 
 is obliged to institute proceedings in consequence of the executor's 
 omitting to avail himself of the Act to pay the money into Court, 
 since there is no power given by the Act by which the executor 
 can be coiupellcd to ])ay the legacy without a suit ; and that Avherc 
 the executors, thougli a<liiiittiiig assets, have refused or neglected 
 to pay the legacy into Coui't, they w(;uld be decreed to pay the 
 costs. 
 
 Ch. III. § 5. 
 
 Solicitor has 
 a lien upon 
 fund for his 
 costs, but not 
 upon the 
 papers. 
 
 Of the costs 
 of suing for 
 an infant's 
 legacy; 
 
 not in future 
 to come out of 
 the testator's 
 estate ; 
 
 but must be 
 paid by the 
 executor, if 
 he admits 
 assets, scmble. 
 
 1 Pearce v. I'carce, 9 Ves. 548. 
 
 2 lioddam v. llutherington, 6 Ves. 91, 
 95. 
 
 * Slaiiies v. Maddox, Mos. 319. 
 
 ■* Montagu oil Lien, 53; and sec Turner 
 V. Letts, 20 Heav. 185; 7 Ue G., M. & G. 
 243; 1 Jur. N. S. 4fe7, 1057; Dunn v. 
 vol?. I. 
 
 Dunn, 7 Do G., M. & G. 25, 29; 1 Jur. 
 N. S. 122; ;j Drew. 17; 18 Jur. 1008. 
 
 '' Anon., Mos. 5. 
 
 « Wluphuin r. Wingfield, 4 Ves. 030. 
 lie may imw apply lor it by suiiimoris, 
 wiiire the tiind or stock does not exceed 
 300/., Ord. XX.W. 1 (2).
 
 costs. 
 
 82 SUITS BY PERSONS AVIIO ARE UNDER DISABILITY. 
 
 Cii. III. §G. With vospect to the right of the next friend of an infant to rc- 
 
 ^— Y ' coivo any thing beyond liis taxed costs out of a general fund, in 
 
 Astoiuvxt order to reinihurse him for any extra expense he may have been 
 
 friend's riijht ^ ^ ,.,,. .... , , • ^ i i ^ 
 
 to costs ' put to, some (ulierence oi opinion api)ears to liavc existed between 
 ^i,T'^ ^«-^*^^^ Lord EUlon and Sir William Grant M. K. In Osborne v. Bmne^ 
 where a bill had been filed by a legatee on behalf of himself, and 
 as next friend of an infant legatee, in which the usual decree was 
 made, and the costs ordered to be taxed and i)aid out of the 
 estate, an ai>plication was made to the Master of the Rolls, on be- 
 half of the next friend, that he might in some way have costs 
 beyond his taxed costs : either by a direction to have them taxed 
 as between solicitor and client, or by a reference to the Master to 
 see what extra costs he had been put to ; but Sir William Grant 
 refused to make the order : saying, that if a next friend is to a 
 certainty to have all that exceeds the taxed costs, it would lead 
 him to be very careless. In Fearns v. Younci^ where an applica- 
 tion was afterwards made to Lord Eldon for the costs of trustees, 
 as between soUcitor and client, his Lordshij) refused to make such 
 an order, on the ground that where the costs of a trustee are di- 
 rected to be taxed, that means as between party and j^arty, not in 
 the larger way ; although, where a trustee, in the fair execution of 
 his trust, has expended money by reasonably and j^i'operly taking 
 ojjinions, and procuring directions that are necessary for the due 
 execution of his trust, he is entitled not only to his costs, but also 
 to his charges and expenses, under the head of just allowances. 
 His Lordshii), however, added, " With regard to an infant, this re- 
 qiures great consideration ; for as the infant himself cannot incur 
 charges and exj^enses, if they cannot be claimed under just allow- 
 ances, and the next friend is to be at the whole expense of tlie 
 infant beyond his costs, persons will deliberate before they accept 
 that office." » 
 
 Sectiox VI. — Idiots, Jjimatics, and Persons of Wea/c Mind. 
 
 Suits on their Although, as it has been observed,* in certain cases suits on 
 
 behalf most behalf of idiots or lunatics may be instituted in the fonn of in- 
 
 properly by . •' 
 
 bill, formations by the Attorney-General, yet the proper course of 
 
 proceeding to assert their rights in Equity is by bill.^ 
 
 in the name of Suits Oil behalf of a lunatic are usually instituted in the name of 
 
 imt by hbs'^^' ^^® lunatic ; but as he is a person incapable in Law of taking any 
 
 committee, or step on his own account, he sues by the committee of his estate, if 
 next friend. 
 
 1 7 Ves. 424. 4 Ante, p. 9. 
 
 2 10 Ves. 184. 5 (jr, where applicable, by administra- 
 8 For more as to costs of infants' suits, tion summons, under 15 & "iG Vic. c. 86, 
 
 see Beames on Costs, C9-71, 83-87. §§ 45-47 ; see post, Chap. XXIX.
 
 IDIOTS, LUNATICS, AXD PERSONS OF WEAK MIND. 
 
 83 
 
 any, or if none, by his next friend, "who is resjionsible for the con- Ch. hi. § 6. 
 
 duct of the siiit.-^ The hmatic must be named a co-plaintiff, as '- y -' 
 
 well in a bill as in an information, on his behalf; ^ where, however, Lunatic must 
 
 xi 1 • f ^ • • • T • -, . , be a party, 
 
 the object oi the smt is to avoid some transaction entered into by unless in suits 
 the lunatic on the o-round of his incapacitv at the time, it has been *° ^'^'^^'^ ^^^ 
 
 , . . . own acts, 
 
 held, that a lunatic ought not to be a co-plaintiff,^ because it is a 
 principle of Law that no man can be heard to stultify himself,* 
 This distinction was recognized and adopted in some early cases,^ 
 but it would scarcely be considered important in modern times ; 
 and where a bill was brought by a lunatic and his committee, to 
 avoid an act of the limatic's on the ground of insanity, a demurrer, 
 on the ground that a lunatic could not be allowed to stultify him- 
 self, was disallowed : ^ the Lord Chancellor observing, that the rule 
 
 1 Stoiy Eq. PI. § 64; Dorsheimer v. 
 Roorback, 3 C. E. Green (N. J.), 438; 
 Norcom v. Rogers, 1 C E. Green, 484. In 
 some of ihe States in America, the Courts 
 of Equity are intrusted with the authority 
 to appoint committees for idiots and luna- 
 tics, as in England, and in such cases the 
 idiots and lunatics sue b^- their couunitttes. 
 In other States, idiots and lunatics are by 
 law placed under guardians appointed bj' 
 other Courts, and ordinarily by the Courts 
 of Probate of the State. In sucli cases 
 the idiots and lunatics sue and defend 
 suits, by their proper guardians, unless 
 some other is specially appointed for that 
 purpose. Story Eq. IM. § 65. Thus in 
 New York, by statute, the Court of Chan- 
 cery had the care and custody of idiots 
 and lunatics. 2 Itev. &tat. N. i'.ul etseq. 
 (ed. lb2'J); Matter of Wendell, 1 John. 
 Ch. COO; Brasher c. Van Cortiandt, 2 Jolm. 
 Ch. 242, 246. In .Massachusetts, the Courts 
 of Probate have the exclusive authority 
 to appoint guardians of insane persons. 
 Genl. Sts. c. 109, § 8; Story Eq. PI. § 65, 
 note (1). For V'irgniia, see Boiling v. 
 Turner, 6 Rand. 584; Vermont, see Smith 
 V. Burnham, 1 Aik. 84; New Jersey, Dor- 
 sheimer V. Roorback, 3 C. E. Green (N. J.), 
 438. 
 
 2 Story, Eq. PI. § 04 and note; see 
 Gorham v. Gorham, 3 Barb. Ch. 24. 
 
 " A liinnlic is not a necessary party 
 plainiilf witii Ids committee, on a bill to 
 set aside an act d(me by the lunatic under 
 mental imbecility. Urtley v. Mcs-ere, 
 T John. Ch. 13U. " The general i)ractice, 
 however," it was remarked by Mr. Chan- 
 cellor Kent, in tiiis case, " is to unite the 
 lumitic with tlie committee, as was done 
 in 2 Vernon, 678; but there does not «p- 
 jR-ar to be any use in it, or any necessity 
 t'lir it, as the conmiittue have the excluHive 
 cii.stody and control of the estate and rights 
 of the lunatic. The lunatic may be con- 
 sidered a party by his connnittee; and, 
 like tru-'tec'* of an insolvent debtor, the 
 committee hold the estate in trust, under 
 the direction of the Court." 
 
 * In Reference to this ma.xiin, it is re- 
 
 marked by Mr. Justice Story : " How so 
 absurd and mischievous a maxim could 
 have found its way into any system of 
 jurisprudence, protessing to act upon 
 civilized beings, is a matter of wonder 
 and humiliation. There have been many 
 struggles against it, in all ages of tiie 
 common law, by eminent lawyers, but it 
 is somewhat ditlicult to resist the authori- 
 ties which assert its establishment in the 
 fundamentals of the common law." " Even 
 the Courts of Equity in England have 
 been so far regardful of the maxim, that 
 they have hesitated to retain a bill to 
 examine the point of lunacy," — " and 
 formerly they were so scrupulous in ad- 
 hering to the maxim, that cases have 
 occurred in which a lunatic was not al- 
 lowed to be a party to a bill to be relieved 
 against acts done during his lunacy. But 
 tliis rule is now with great proprietv aban- 
 doned." 1 Story E((. Jur. § 22o. In 
 America this maxim lias seldom, if ever, 
 been recognized in any of the Courts of 
 common law. Mitchell v. Kingman, 5 Pick. 
 431; Webster v. Woodford, 3 Day, 'JO; 
 Grant i". Thompson, 4 Conn. 203; Lang v. 
 Whiddon, 2 N. H. 435; Seaver v. Phelps, 
 11 Pick. 304; McReight o. Aitken, 1 Rice, 
 66; Kice v. Peet, 15 John. 503; Chitty 
 Cont. (10th Am. ed.) 150 and note. In 
 modern times the English Courts of Law 
 seem inclined as far as possible to escajio 
 from the maxim. Baxters. Karl of Ports- 
 mouth, 5 li. & C. 170; Ball V. Mannin, 
 3 Bligh (N.S.), 1; 1 Story Eq. Jur. § 225, 
 note (5). 
 
 Tlie ground on which Courts of Equity 
 now inierfere to set aside the contracts 
 and other acts, however solemn, of persons 
 who are idiots, lunatics, and otherwise 
 turn compotes meutis, is fraud. 1 Story 
 Eq. Jur. § 227. 
 
 o Attorney-General v. Woolrich, 1 Ca. 
 in Cha. 153; Attorney-General v. Park- 
 hurst, ih. 112. 
 
 « Kidler v. Ridler, 1 Eq. Cas. Ab. 279, 
 pi. 5; and see Tothill, 130; ,Story Eq. 
 Jur. § 226,
 
 84 
 
 SUITS BY PERSONS WHO AKE UNDER DISABILITY. 
 
 Cii. HI. §r.. 
 
 to tho i^vjii- 
 dioi'ofotlu'i's 
 
 Liiot not ji 
 ui'i-essary 
 party ; 
 
 coniniittee of 
 idiot or 
 lunatic is. 
 
 In what cases 
 a demurrer 
 wiUUe; 
 
 or a plea ; 
 
 to bill of 
 discovery, as 
 well as relief. 
 
 that a lunatic should not ho admitted to excuse himself on pretence 
 of lunacy, was to he understood of acts done hy the lunatic to the 
 ]»rejiidice of others, but not of acts done by him to the prejudice of 
 himself. 
 
 It Avas said by the Lord Keeper Bridgman, in the case of At- 
 torney- General v. Woolrich, above referred to, that the reason why 
 a limatic is required to be a party to a suit instituted on his behalf 
 is, because he may recover his understanding, and then he is to 
 have his estate in his own disjiosition ; but that it is otherwise of 
 an idiot : from which it seems that an idiot is not a necessary i)arty 
 to a suit instituted on his behalf. But neither an idiot nor a luna- 
 tic can institute a suit, nor can one be instituted on his behalf, 
 without the committee, if any, of liis estate being a party, either 
 as a co-])laiiitift'or as a defendant ;^ and therefore, where the com- 
 mittee of a lunatic filed a bill on behalf of the lunatic, without 
 making himself a co-plaintiff, Sir Thomas Plumer M. R. directed 
 the case to stand over, with liberty to amend, by making the com- 
 mittee a co-plaintiff;^ and in the I^ishojj of London v. NidiolU^ a 
 bill for tithes by the bishoj) and sequestrator, during the incapacity 
 of the incmubent, was dismissed, because neither the incumbent 
 nor his committee was a party. 
 
 If a person exhibiting a bill appear upon the face of it to be 
 either an idiot or a lunatic, and therefore incapable of instituting 
 a suit alone, and no next friend or committee is named in the bill, 
 the defendant may demur ; * but if the incapacity does not a])pear 
 on the face of the bill, the defendant must take advantage of it by 
 plea.^ The objection arising from lunacy extends to the whole 
 bill, and advantage may be taken of it, as well in the case of a bill 
 for discovery merely, as in the case of a bill for relief; for the de- 
 fendant in a bill of discovery, being entitled to costs, after a full 
 answer, as a matter of course, would be materially injured by being 
 compelled to answer such a bill by a person whose property is not 
 in his own disposal, and who is therefore incaj^able of paying the 
 costs." 
 
 If the plaintiff became a lunatic after the institution of a suit, it 
 
 1 Fuller V. Lance, 1 Ca. in Cha. 19; 
 Story Eq. PI. § 64, and note. 
 
 Idiots and lunatics muit sue in equity 
 by their committees or guardians; in New 
 Jersey, by their guardians. Dorsheimer 
 V. Roorback, 3 C. E. (ireen (N. J.), 338. 
 
 2 Woolfrves v. Wooll'ryes, Rolls, Feb. 
 17, 1824, MSS. 
 
 3 Bunb. 141. 
 
 * Ld. Red. 153; Norcom v. Rogers, 1 C. 
 E. Green (X. J.), 484. 
 
 See the remarks of Chancellor Zabriskie 
 upon the assumption of the text, that an 
 idiot or lunatic may sue by next friend, in 
 Dorsheimer v. Roorback, 3 C. E. Green 
 (N. J.), 440. He there says: "I find no 
 
 case or authority in which it is held that 
 they may sue by a next friend, either 
 a volunteer or appointed for the purpose; " 
 and it was held, in the case, that a bill 
 tiled in the name of an idiot by a volunteer 
 .styling himself her next friend, not ap- 
 pointed her guardian upon inquisition 
 found, nor authorized by the Court to file 
 the bill as her next friend, will be dis- 
 missed on motion of tlie defendant. " The 
 motion to take the bill from the files must 
 be granted." 
 
 & Ld. Red. 153, 229 ; see Story Eq. PI. 
 § 725. 
 
 6 Ld. Red. 153.
 
 IDIOTS, LUNATICS, AXD PERSONS OF WEAK MIXD. 
 
 85 
 
 was formerly requisite that a supplemental bill should be filed, in 
 the joint names of the lunatic and of the committee of his estate, 
 which answered the same purpose as a bill of re^dvor in procuring 
 the benefit of former proceedings ; ^ and if the committee of a 
 lunatic's or idiot's estate died, after a suit had been instituted by 
 him for the benefit of the idiot or lunatic, and a new committee 
 was appointed, the proper way of continuing the suit was by a 
 supplemental bill filed by the idiot or lunatic and the new com- 
 mittee ; but under the present practice of the Court, the suit would 
 be continued, in either of these cases, by a supplemental order or 
 order of revivor.'^ After a decree, and pending proceedings under 
 an inquiry, the Court will stay the cause till the issue of a com- 
 mission of lunacy concerning the plaintiff is known.^ 
 
 A committee, previously to instituting a suit on behalf of an 
 idiot or lunatic, should obtain the sanction of the Lord Chancellor 
 or Lords Justices, who, by vu'tue of the Queen's sign manual, are 
 intrusted with the care of lunatics. In order to obtain such sanc- 
 tion, a statement of facts showing the propriety of the suit should 
 be laid before the Master in Lunacy, and a report obtained from 
 him approving the suit ; which report must be confirmed by the 
 Lord Chancellor or Lords Justices.^ 
 
 It may be observed here, that the Court of Chancery will not, 
 as a matter of course, interfere to set aside contracts entered into 
 and completed by a lunatic, without fraud in the parties dealing 
 with him, even where such contracts are oven'eached by the inqui- 
 sition taken in lunacy, and may be void at LaAV ; ^ but the inter- 
 ference of the Court will depend very much upon the circumstances 
 of each particular case ; and where it is impossible to exercise the 
 jurisdiction in favor of the lunatic so as to do justice to the other 
 party, the Court will refuse relief, and leave the lunatic to his 
 remedy, if any, at Law.® • It seems also, that although a contract 
 is entered into by a lunatic subsequent to the date from which he 
 is found by the inquisition to have become lunatic, yet, if the fact 
 of liis being a lunatic at tlie time of the contract is denied by the 
 defen<lant, the establishment of that fact is indispensably necessary ; 
 and formerly when the Court had any doubt upon it,'it directed 
 an issue to try it.'' 
 
 Cn. III. S 6. 
 
 Fonner prac- 
 tice where 
 plaintiff was 
 found lunatic 
 after suit 
 commenced ; 
 or committee 
 died, or was 
 changed. 
 
 Present prac- 
 tice: 
 
 supplemental 
 order neces- 
 sary. 
 
 Sanction of 
 Lord Chancel- 
 lor, or Lords 
 Justices in 
 Lunacy, nec- 
 essary- to 
 institution of 
 suit by com- 
 mittee. 
 
 Of setting 
 aside con- 
 tracts by 
 lunatic. 
 
 1 See Hrown r. Clark, 3 Wooddeson, 
 Lect. 371^, witig, where the form of such a 
 bill !« xtatfd. 
 
 2 15 & 10 Vic. c. S6, § 02, and Ord. 
 XXXII. See Sefon, llUC,, 1170; Danpar 
 r. Stewart. 9 \V. K. 206, V. C. K.; Tliew- 
 li.s «'. Furrar, citfil, Sct"n. IIOO ; and see 
 post, Cli!i|>. XX.XIII, Jin-ivor nil'/ Supple- 
 ment. For form« of motion paper and peti- 
 tion, see Vol. ni. The practice as to tlie 
 appointment of new next friends of idjot.s, 
 lunatic-, or persons of weak mind is the 
 
 same, mufntis mutandis, as in the case of 
 infants; see ante, p. 76, 76. 
 
 8 Hartley v. (lilbert, 13 Sim. 596. 
 
 * 16 & 17 Vic. c. 70, §§ 70-73, 91-07; 
 and 14th Onl. in Lun. of 7tli Nov., 1^53, 
 17 .Jur. I't. II. 445; see Klmer's I'rac. 42. 
 
 C Price V Berrington, 3 M'N. & G. 4X6, 
 490; Yauger v. Skinner, 1 McCarter(N. 
 J.). 389. 
 
 ^ Slielf. on Lun. 551; Niell v. Morley, 
 9 Ves. 47H, 4H1, 4><2. 
 
 7 Niell V. Morley, 9 Ves. 478.
 
 86 
 
 SUITS 15Y rKRSONS WHO AKE UNDEU DISABILITY. 
 
 Cm. III. 5 Ik 
 
 l?ill l.y iml.c- 
 
 Cilo ]K'I-S(1I1 
 
 without, will 
 bo taken off 
 the tile. 
 Seats, if filed 
 hct'oiv ]ilain- 
 tiir becumes 
 so. 
 
 Sanction of 
 Court or 
 Judge, and in 
 lunacy, to 
 con:sent to 
 departure 
 firom ordinary 
 mode of pro- 
 cedure. 
 
 IVrsoiis of full :ini\ but who are inc:ti):il»le of acting for them- 
 sclvos, though noitluT idiot.s nor lunatics, have been perniitted to 
 sue by their next friend, Avithout the intervention of the Attorney- 
 General ; ^ and it seems, that if a bill has been filed in the name of 
 a ]ilaintitl"\vho, at the time of filing it, is in a state of mental inca- 
 pacity, it may, on motion, be taken ofi:* the file.'^ If, however, a 
 suit has been properly instituted, and the plaintift* subsequently 
 becomes imbecile, that circumstance will not be a suflicient ground 
 for taking the bill ofi:' the file. Thus, where a motion was made 
 on the ])art of the defendant to take a bill off the file, on the 
 ground of the plaintift' having been for some time reduced by age 
 and infirmity to a state of mental imbecility, which rendered her 
 incai>able of instituting a sixit : the circumstances of the case not 
 a]i]>earing, in the o]iinion of Lord Eldon, to Warrant the inference 
 that, at the time of filing the l)ill, she was incompetent to authorize 
 the proceeding, and the bill appearing to be a proi)er one Avitli a 
 view to her rights and interests, his Lordship thought, that as the 
 suit was rightly commenced and the further prosecution of it 
 proper, it would be a strong step even to stay the proceedings, 
 merely because her state of mind was such that she could not 
 revoke the authority previously given ; but that to take the bill 
 oft' the file, and make the answer waste paper, could not be done.' 
 
 The committee of a lunatic, and the next friend of a person of 
 unsound mind, before he consents to any de]>arture froni the ordi- 
 nary mode of taking evidence, or of any other procedure in the 
 suit, should first obtain the sanction of the Court or Judge ; * and 
 the Committee should also obtain that of the Lord Chancellor or 
 Lord Justice sitting in Lunacy.^ 
 
 1 Ld. Red. 30, cites Elizabeth Liney, a 
 person deaf and dumb, by her next friend, 
 again.st Witlierly and others, in Ch. : De- 
 cree, 1 Dec, 1700; ditto on Supplem. Bill, 
 4 Mar. 1779 If a person have religious 
 scruples against being a party to a suit, 
 lie niav sue by his next friend. Malin v. 
 Malinj 2 .John. Ch. 238. A person in 
 dotage, or an imbecile adult, may sue by 
 next friend. C. D. Owing's case, 1 Bland, 
 373; Bothwell v. Bonshell, 1 Bland, 373; 
 see Story V.q. I'l. § 66. As to the juris- 
 diction of the Court of Chancery with 
 regard to the property of a lunatic not so 
 found bv inquisition, see Nelson v. Dun- 
 combe, "9 Beav. 211, 216, 219; 10 Jur. 
 399; Edwards v. Abrey, 2 C. P. Coop. t. 
 Cott 177, and cases there collected; lie 
 Burke, 2 De G., V. & J. 124; Jie Tavler, 
 ib. 12.5; Re .M-l"arlane, 2 .J. & H. 673; 
 8 .lur. X. .S. 208; Light v. Light, 2.5 Beav. 
 248: Williams r. Allen. .3-3 Beav. 241; 
 Starbuck v. Jlirchell, 1 \V. X. 253, M. R.; 
 Jie Coleman, 1 W. X. 209, V. C. S. ; and 
 see Seton, 709, Xo 11, and «Ji<e, p. 9. By 
 
 the 25 & 26 Vic. c. 86, a summarj' juris- 
 diction is conferred in Lunacy over the 
 property of an alleged insane "person, for 
 his benefit, where of small amount, with- 
 out inquisition or issue; and see Ord. in 
 Lunacy thereunder of 7 Nov., 1862. in El- 
 mer's Prac. 363; 8 .lur. N. S. Pt. XL 513. 
 In the case of a bill on behalf of a person 
 of weak mind, as in the case of infants and 
 married women, a written authority to use 
 the name of tlie next friend must l)e fded 
 with the bill, 15 & 16 Vice. 86, § 11. For 
 form, see Vol. III. And see Attorney- 
 General V. Murray, 18 W. R. 65, V. C. K., 
 rinte, pp. 13, n. (4), G9, n. (li). The next 
 friend of a person of weak mind is, in every 
 respect, in the same position as the next 
 friend of an infant. 
 
 2 Wartnaby v. Wartnnby, .Tac. 377; 
 Blake v. Smith, Younge, 590; Norcom v. 
 Rogers, 1 C. E. Green (N. .J.), 484. 
 
 3 Wartiiabv v. Wartnaby, Jac. 877; 
 Story, Eq. Pf. § 00. 
 
 4 For form of summons, see Vol. III. 
 
 5 Ord. 5th Feb., 1861, r. 24.
 
 MARRIED WOMEN. 
 
 87 
 
 Section YII. — Married Womeyi. 
 
 Ch. III. § 7. 
 
 By marriage, tlie husband and wife become as one person in 
 law; and upon this union depends all the legal and equitable 
 rights and disabihties which either of them acquires or incurs by 
 the intermarriage. One of the consequences of this unity of ex- 
 istence and interest between the husband and wife is, that at 
 Common Law a married woman cannot, except in the cases men- 
 tioned below, dm-ing the continuance of her coverture, institute a 
 suit alone ; therefore, whenever it is necessary to apply to a judicial 
 tribunal respecting her rights, the proceeding must be commenced 
 and carried on in their joint names.^ The exceptions to this rule 
 are : when the husband can be considered civiliter mortuus, and 
 when the wife is judicially separated from her husband, or has ob- 
 tained a protection order ; ^ in which cases, the wife is looked upon 
 as restored to her rights and capacity as a feme sole, and may sue 
 alone. 
 
 With respect to what is called a civil death in law, Lord Coke 
 says, that a deportation for ever into a foreign land, like to a pro- 
 fession, is a civil death, and that in such cases the wife may bring 
 an action, or may be im})leaded during the natural life of lier luis- 
 band ; and so, if by an Act of Parliament the husband be attainted 
 of treason or felony, and is banished for ever, this is a civil death, 
 and the wife may sue as a feme sole ; but if the husband have 
 judgment to be exiled but for a time, which some call a relegation. 
 
 Consequences 
 of marriage 
 on wife's 
 right to sue at 
 law: 
 
 wife cannot 
 sue alone, 
 
 unless hus- 
 band civiliter 
 mortuus, 
 or they are 
 judicially 
 separated, or 
 her property 
 is protected 
 by order. 
 Husband is 
 civiliter mor- 
 tuus when 
 transported 
 for Ute ; 
 
 or attainted 
 and banished 
 by Act of 
 Parliament, 
 
 1 See Hilton v. Lothrop, 46 Maine, 297; 
 Williams i'. Coward, 1 Grant (Penn.) 21; 
 Bradley v. Emerson, 7 Vt. 369. In Massa- 
 chusetts, a married woman may sue and 
 be sued in all matters having relation to 
 her separate property, business, trade, 
 services, labor, and earnings, in the same 
 manner ns if she were sole. Genl. Sts. 
 c. lOS, § 3; Conant t". Warren, 6 Gray, 562. 
 If i)roperty belongs to the wife alone, as 
 her sole H"n<i .sejiariite [)roi)Orty, an action 
 respecting it should be in her name alone, 
 and her bu^band ^imnld not be ji.incd. 
 llenncsspy v. White, 2 Allen, 48, 49; see 
 Coniint V. Warren, ubi supra. In Ken- 
 tucky, a wife may sue alone in an action 
 relating to her separate property. Petty 
 V. Miilier, 14 M. Mon. 216. So in New 
 Ilampsliin-: Jordiui r. Cnininings, 43 N. 
 11. 134-136. under recnt Statutes. So 
 by the Code of Procedure in New York; 
 aii'l when the action is between herself and 
 husband, she may sue or be sued alone. 
 In no case need she prosecute by a pu'tr- 
 dian or n-xt friend. 2 Kent (ilthed), 
 l.'>4 note. I'lider the New York acts of 
 IStiO and lt-62, a married woinnn, irnding 
 on her own account, may Ite sued alone on 
 a note given by her in the course "f her 
 trading, liarton v. Beer, 35 liarb (N. Y.) 
 
 78. Having a perfect capacity to sue, she 
 will be held responsible for the acts other 
 attorney or solicitor, and for the want of 
 ordinary diligence on her part. Cayce v. 
 Powell, 20 Texas, 767. In Louisiana, in 
 a bill by a wife to be relieved from n mort- 
 gage made by her, on the ground of her 
 disal'ility to contract, her husband luiiy 
 properlv be joined with her as prochein 
 ami. IJein v. Heath, 6 Mow. U. S. 228. 
 A married woman, entitled by law to sue 
 in her own name, may declare without 
 alluding to her husband. Jordan r. Cnin- 
 mings, 43 N. H. 134; see Wheaton v. 
 Pliillips, 1 Measley (N. .1.), 221. 
 
 2 20 & 21 Vic c. S.l, §§ 21, 25, 26, 45; 
 21 & 22 Vic. c. lOH, ^§ G-H; 27 & 28 Vic. 
 c. 44; and see 22 & 23 Vic. c. 61, §§ 4, 6; 
 23 & 24 Vic. c. 144, § 6; 7i'e Itainsdon's 
 Trusts, 4 Drew. 446; 5 .lur. N. S. 55; Jie 
 Kingsley, 26 Heav. H4; 4 .lur. N. S. lolO; 
 Cook V. Fuller, 26 Jlcav. U!i; lUidge r. 
 VVeedon, 4 l)e G. & .F. 216; 5 .lur. N. S. 
 723; Bathe v. Pank of Knghind, 4 K. &; 
 .1.564; 4 .lur. N. S. 505; li,- Wliilling- 
 bani's Trusts, 10 .Jur. N. S. MS; 12 W. 
 H. 775, v. O. W.; Caldicott r. l'.aU"r, 13 
 W. II. 449, V. C. K.; Sealey v. Ga-tou, ib. 
 677, v. C. W.
 
 88 
 
 SUITS BY PERSONS WHO ARE UNDER DISABILITY. 
 
 Cii. 111. §7. 
 
 V— — Y ' 
 
 or l>y onli- 
 luirv imiicss; 
 
 or alien 
 abiviul. 
 
 this is 111) i'i\ il doatli.^ At law, also, every person who is attainted 
 by onlinai-y process of treason or felony, is disabled to bring- any 
 action, for he is e.rtra legem positus, and is accounted in law civlliter 
 mortiius ;- and Avhere tlie husband is an alien, and has left this 
 kiiiu,doni, or has never been in this country, tlie Avife may, during 
 (<uch absence, sue alone,""* although, in ordinary cases, the absence 
 
 1 Co. Lift. 133 .1.; Storv Eq. PI. § 61; 
 Wrialit V. Wrislit, 2 Dosjaiis. 244; Corn- 
 wall r. llovt, 7 Conn. 420; Troughton v. 
 Hill, 2 Iliiyw. 406; Kobinson v. Keynolds, 
 1 Aiken. 174. 
 
 Mr. Chiincellor Kent, 2 Kent (11th ed.), 
 154, 155, in reference to this point, re- 
 marks, that " Lord Coke seems to put the 
 capacity of tlie wife to sue as a feme sole, 
 upon the ground, that tlie abjuration or 
 banishnient of the husband amounted to a 
 civil death. But if the husband be ban- 
 ished, for a limited time only, tliough it be 
 no civil deatii, the better opinion is, that 
 the consequences, as to the wife, are the 
 same, and she can sue and be sued as 
 a. feme sole." See also £x parte Franks, 
 1 M. & Scott, 1. In Kobinson v. Keynolds, 
 1 Aiken, 174, this point was considered 
 and the English cases ably reviewed; but 
 the question was, by this case, still left 
 unsettled, whether transportation or ban- 
 ishment of the husband b}' law, for a lim- 
 ited time onl)', would be sufficient to give 
 the wife the capacitj' to sue and be sued 
 as a feme sole. It seems, however, from 
 the case of Foster v. Everard, Craw. & 
 Dix, 135, that a feme covert, whose hus- 
 band has been trunsported for a limited 
 term of years, will not be allowed to sue 
 in Equitv as a feme sole. 
 
 2 2B.&P.231; 4Esp. 27; Bac. Ab. tit. 
 Bar. and Feme (M) ; 9 East, 472. 
 
 8 2 Esp. 554, 587; 1 B. & P. 357; 2 B. 
 & P. 226; 1 Bos. & P. N. K. 80; 11 Ea.st, 
 301; 3 Camp. 123; 5 T. R. 679, 682; 8 T. 
 R. 545; 2 Kent (11th ed.), 155; Gregory 
 V. Paul, 15 Mass. 31 ; Jordan v. Cummiiigs, 
 43 N. H. 134. Where the husband had 
 never been in the United States, and had 
 deserted his wife in a foreign countrj-, and 
 she came here and maintained herself as 
 a feme sole, she was held entitled to sue 
 and be sued as a feyrie sole. Gregorj' i\ 
 Paul, 15 Mass. 31, (Kand's ed.), p. 35, n. 
 a, and cases cited. So, where the hus- 
 band, a citizen of and a resident in another 
 of the United States, compelled his wife 
 to leave him without providing any means 
 for her support, and she came into Massa- 
 chusetts and maintained lierself there, for 
 more than twenty years, as a single woman, 
 she was held entitled to sue as a feme sole. 
 Abbot V. Bayley, 6 I'ick. 89. the prin- 
 ciple of the above decisions has been ex- 
 tended still further bv the Genl. Sts. of 
 Mass. c. 108, § 29. Sec Storv Eq. PI. 
 § 61, and note to this point; 2 Ivent (11th 
 ed), 155. In Beane v. Morgan, 4 M'Cord, 
 148; S. C. 1 Hill, 8, it was held, that if the 
 husband leave the State, without the in- 
 
 tention of returning, the wife is competent 
 to contract, to sue, and be sued, as if she 
 were a feme sole. See Valentine v. Ford, 2 
 Browne, 193; Kobinson v. Keynolds, 1 Ai- 
 ken, 174; Troughton v. Hill, 2 Ilayw. 406; 
 Khea r. Khenncr, 1 Peters, 105; Edwards 
 i>. Davies, 16 John. 286 ; Chitty Cont. ( 10th 
 Am. ed.) 196 el seq. ; Moore w. Stevenson, 
 27 Conn. 14. In Gregory ?'. Pierce, 4 
 Met. 478, it was observed by Chief-Justice 
 Shaw, that " the principle is now to be 
 considered as established in this State, as 
 a necessary exception to the rule of the 
 common law, placing a married Avoman 
 under disability to contract or maintain a 
 suit, that where the husband was never 
 within the Commonwealth, or has gone 
 beyond its jurisdiction, has wholly re- 
 nounced his marital rights and duties, and 
 deserted his wife, she may make and take 
 contracts, and sue and be sued in her own 
 name as a feme sole. It is an application 
 of an old rule of the common law, which 
 took away the disabilitj'of coverture when 
 the liusband was exiled or had abjured 
 the realm. Gregory v. Paul, 15 Mass. 31; 
 Abbot V. Bayley, 6 Pick. 89. In the latter 
 case, it was held, that, in this respect, the 
 residence of the husband in another State 
 of these United States, was equivalent to 
 a residence in any foreign State; he being 
 equally beyond the operation of the laws 
 of the Commonwealth and the jurisdiction 
 of its Courts. But to accomplish this 
 change in the civil relations of the wife, 
 the desertion by the husband must be ab- 
 solute and complete ; it must be a volun- 
 tary separation from and abandonment of 
 the wife, embracing both the fact and the 
 intent of the husband to renounce de facto, 
 and as far as he can do it, the marital re- 
 lation, and leave his wife to act as a feme 
 sole. Such is the renunciation, coupled 
 with a continued absence in a foreign 
 State or country, which is held to operate 
 as an abjuration of the realm." 
 
 In Massachusetts, it is provided by 
 Statute, that, when any married man shall 
 absent himself from the State, abandoning 
 his wife and not making sufficient provision 
 for her maintenance, or whose husband 
 has been sentenced to confinement in the 
 State's prison, the Supreme Judicial Court 
 may, on her petition, authorize her to com- 
 mence, prosecute, and defend any suit in 
 Law or Equity to final judgment and ex- 
 ecution, in like manner as if she were un- 
 married. Genl. Sts. Mass. c. 109, §§ 31, 32. 
 
 A wife, who is divorced a mensn et 
 ihoro, may sue as a. feme sole on causes of 
 action arising after the divorce. Dean v.
 
 MAERIED WOMEN. 89 
 
 of the husband affords no gi-ound for the wife's jiroceeding sep- Cn. in. § 7. 
 arately.^ ' y < 
 
 In these respects, Courts of Eqiiity follow the rules of law : - Eules of Law 
 Thus, it has been held in Equity, that where a husband has been Equity; 
 banished for life by Act of Parliament, the wife may in all things 
 act as Q. ferae sole, as if her husband were dead, and that the neces- 
 . sity of the case requires that she should have such power ; ^ and 
 where a husband was attainted of felony, and pardoned on con- 
 dition of transportation, and afterwards the wife became entitled 
 to some personal estate as orphan to a freeman of London, such 
 jDersonal estate was decreed to the wife as a feme sole.^ 
 
 In Equity, however, as well as at Law, the general rule, which 
 requii'cs the husband to be joined in a suit respecting the rights 
 of his wife, prevails, except under particular cii'cumstances, which 
 will be hereafter pointed out ; but at Law there exists a distinc- but a distinc- 
 tion between actions for property which has accrued to the "wife between per- 
 before marriage, and actions for propertv wliicli has come to her sonal property 
 
 jiccniGd 
 
 afterwards ; which distinction does not prevail in Equity ; for before and 
 with respect to such debts and other choses in action as belong to ^^^^^ ™^' 
 the wife and continue unaltered, since the husband cannot dis- 
 agree to her interest in them, and as he has only a qualified right 
 to possess them, by reducing them into possession during her life, 
 he is unable to maintain an action for such proj^erty without 
 making his wife a party ; ^ but for all personal estate which accrues 
 to tlie wife, or to the husband and wife jointly, during marriage, 
 and for all covenants made or entered into with them during that 
 period, the husband may, at Law, commence proceedings in his 
 own name ; because the right of action having accrued after 
 marriage, the husband may disagree as to his wife's. interest, and 
 make his own absolute : an intention to do whicli he manifests in 
 bringing an action in his own name, when it might have been 
 commenced in the name of both of them ; ® and in such case it 
 has been held, that if the husband recover a judgment for a debt 
 due to tlie wife, and die before execution, his personal represent- 
 ative will be entitled to the benefit of it, and not the wife.'' 
 
 Richmond, 6 Pick. 461; Pierce v. Burn- mnst Join, and he cannot sue alone. This 
 
 hHm, 4 Met. .303; see 2 Kent (11th ed.), rule will ro farther than any other to rec- 
 
 106; Collyer Partn. (PcrkiiisV cd.) § l-'J. oiicile all the cases. In all actions for 
 
 1 11 ICii.st, 301; I)u M'ahl V. IJraune, f/o.svs fn nW/wi duo to the wife hcfore niar- 
 
 1 H. & N. 178; 4 W. H. 046. ria^e, the husband and wife must join; 
 '^ See [.,(1. iJcd. 28; Story Kq. PI. § 61; and anioMR all the con(lictin{j cases, 1 ap- 
 
 C'oop. K(|. i'l. 30; (;alv(!rt on Parties, 414. prehond not one can be found in which it 
 
 ** Countess cf Portland r. Vrodi^ars, was held, that the husband could sue 
 
 2 Vcrn. 104 ; 1 Va\. (Ja. Ah. 171. PI. 1. alone, where the cause of action would 
 * New»ome r IJowver, 3 P. Wins. 37. clnnrlv survivr to thf wife." See Morso 
 6 1 Pricht, II. & \V. 63, and the cases r. Karl, 13 W.iid. 271; IJryantr. Puckctt, 
 
 there cited, nnli^. In Clnnp v. SfouKhton, 3 Hev. 2r>2. 
 
 10 Pick. 47, it was remarked by Mr. .Jus- <"> Ih. 62; and sei Add. Tout. 761. 
 
 tice Wilde : " I think the true rule is, that " ( )Klaiider r. Barton, 1 Vcrn. 3:i6 ; Gar- 
 
 in all ca*fs where the cause of action sur- forth v. Bradley, 2 Vcs. S. 67o, 677. 
 
 vivcs to the wife, the hu.sband and wife
 
 90 
 
 SUITS IJY TERSONS AVIIO ARE UNDER DISABILITY. 
 
 Cii. III. § 7. 
 
 docs not iijv 
 ply in Equity. 
 
 "Wife must in 
 nil onsos be a 
 party to a 
 suit for her 
 ovra property. 
 
 Rule that her 
 portion will 
 not be paid to 
 husband 
 without a 
 settlement, 
 unless she 
 consents. 
 
 The distinction above pointed out does not, lunvever, as lias been 
 stated, exist in Courts of Equity, where it seems necessary that in 
 all cases in Avhieh the husband seeks to recover the ])ro]ierty of the 
 ■wife, lie should make her a jiarty co-]>laintitl' with himself, whether 
 the right to the jirojierty accrued before or after marriage.^ Thus, 
 in Charl-e v. Lord Angier,^ where a legacy was given to a woman 
 whilst she was covert, and the husband, without her, exhibited a 
 bill for it, to which the defendant demurred, on the ground that 
 the wife ought to have been joined in the suit, the demurrer was 
 alloAved.^ 
 
 The ground iipon Avhich Courts of Equity require the wife to 
 be joined as co-]ilaintiff wdth her husband in suits relating to her 
 own property, is the parental care which such Courts exercise 
 over those individuals Avho are not in a situation to take care of 
 their own rights ; and as it is presumed that a father would not 
 marry his daughter without insisting upon some settlement upon 
 her, so, those Courts, standing m loco jxirentis, will not suffer the 
 husband to take a wife's ])ortion, until he has agreed to make a 
 reasonable proA^sion for lier,^ or until they have given the wife an 
 
 1 See Chorr\' ?'. Belcher, 5 Stew. & P. 
 133; Tribble v. Tribble, 5 J. J. Marsh. 
 180; Bradley v. Emerson, 7 Vt. 3(59. 
 
 2 Freeman, 160; S. C. nom. Gierke v. 
 Lord Anglesey, Nels. 78; see also Blount 
 r. Bestland, 5 Ves. 515; Anon., 1 Atk. 
 491: Me.iles v. Meales, 5 Ves. 517, n.; 
 Corr V. Taylor. 10 Yes. 574, 579. 
 
 3 Chase'r. Palmer, 25 Msiine, 348. In 
 such case the husband and wife are neces- 
 sary parties. Schuvler v. Hoyle, 5 .Tohn. 
 Ch! 190; Oldham v'. Collins, 4 J. J. Marsh. 
 50; 2 Kent (lltli ed.), 188; Fosters. Hull, 
 2 .J. .T. Marsh. 546 ; Griflith r. Coleman, 5 I. 
 J. Marsh. 600; Pyle v. Cravens, 4 Litt. 18; 
 Cherry r. Belcher, 5 Stew. & P. 133. In the 
 case of Goddard v. .Tohnson, 14 Pick. 352, 
 at Law, it was decided that a husband may 
 sue in his own right, alter the death of his 
 wife, for a legacy accruing to the wife 
 during the coverture. In this case the 
 Court said: " We think the husband might 
 have sued alone, had the wife been still 
 living, and consequenth' that this action 
 may be sustained. It is a well settled 
 principle that a c}ios.e in action accruing to 
 the wife during coverture, vests absolutely 
 in the husband." In Hapgood v. Hough- 
 ton, 22 Pick. 480, the Court confirmed the 
 above decision. See Sawver v. Baldwin, 
 20 Pick. 378; Davis v. Newton, 6 Met. 
 543-545: Allen v. Wilkins, 3 Allen, .322, 
 323: Stevens >'. BealslO Cush.291; Albee 
 f. Carpenter, 12 Cush. 3''2: .Jones v. Rich- 
 ardson, 5 Met. 249, per Shaw C. .J. 
 
 The subject of the husband's right to a 
 legacy bequeathed to his wife, or to a dis- 
 tril)Utive share in nn estate, in which she 
 is interested, is fully considered, and the 
 authorities collected, in Blount v. Bestland, 
 
 5 Sumner's Ves. 515, Perkins's note (n); 
 Carr v. Taylor, 10 id. 574, Perkins's note 
 (c). 
 
 4 Per Lord Hardwicke, in Jeweon v. 
 Moulson, 2 Atk. 419; Chase v. Palmer, 
 25 IMaiiie, 348. This point is very fully 
 considered in 2 Kent (llth ed.), 138 et neq. 
 If the husband wants the aid of Chancery 
 to get possession of his wife's property, or 
 if her [iroperty be within the reach of the 
 Court, he must do what is equitable by 
 making a rca^oniible provision out of it 
 for the maintciKUue of her and her chil- 
 dren. Whether the suit for the wife's 
 debt, legacy, or portion, be by the husband 
 or his assignees, the result is the same, 
 and a proper settlement on the wife must 
 first be made of a proportion of the prop- 
 erty. J/jid. ; Howard v. Moff'att. 2 .John. 
 Ch". 200; Dnvall )'. Farmers' Hank, Mary- 
 land, 4 (Jill & .1. 282; Whitesides v. Dor- 
 ris, 7 Dana, 100; Dumond v. Magee, 4 
 John. Cli. 318; Kenney v. Udall, 5 .lohn. 
 Ch. 464; Haviland v. bloom, 6 .lohn. Ch. 
 178; 2 Story Eq. .Jur. § 1042 et seq. ; 
 Mumfnrd v. Murray, 1 Paige, 620; Fabro 
 V. Colden, 1 Paige, 166; Sawyer v. Bald- 
 win, 20 Pick. 378; Davis ». Newton, 
 
 6 Met. 543-545; Tucker v. Andrews, 13 
 Maine, 124; Glen v. Fisher, 6 .John. Ch. 
 83; Cape v. Adams, 1 Desaus. 567; Heath 
 V. Heath, 2 Hill Ch. 104; Kees v. Waters, 
 9 Watts, 90; Myers v. Myers, 1 Bailey 
 Eq. 24; Helm v. Franciscus, 2 Bland, 545; 
 Tevis V. Hichardson, 7 ^lonroe, 660; Poin- 
 dexter v. .Jeffries, 15 Grattiui (Va.), 363. 
 It has, at length, become the settled rule 
 of the Courts of Ivpiity, in New York, 
 that they will interfere, and restrain a hus- 
 band from recovering at law his wife's
 
 MARRIED WOaiEN. 
 
 91 
 
 opportunity of making her election, whether the pi-operty shall go Ch. in. § 7. 
 
 to her husband, or shall be made the subject of a settlement upon ' 1 
 
 her and her children. 
 
 This right of a wife is termed her equity to a settlement ; and it Equity to a 
 attaches whenever proceedings are pending in the Court of Chan- 
 
 ceiy, with reference to her personal property,^ or her equitable -n-henit 
 interest in real estate,^ except as against the particular assignee of 
 
 attaches ; 
 
 Eroperty, until he makes a pro'vision for 
 er. See Van Epps v. Van Deusen, 4 
 Paige, 64 : Frv v. Frv, 7 Paige, 462 : Mar- 
 tin V. Mnrtin," 1 Hoff. Ch. 462; Udall v. 
 Kenney, 3 Cowen, 590. Chancery will 
 interfere in such case, on a bill filed by or 
 on behalf of the wife; Tan Epps v. Van 
 Deusen, 4 Paige, 64; or on a petition. 
 Davis V. Newton, 6 Met. 543. 
 
 The result of the cases seems to be, that 
 whenever the interests of a married wo- 
 man are brought before the Court, in op- 
 position to the claims of her husband, they 
 will be attended to, whoever the person 
 applying to the Court may be. Clancy 
 Rights of Women (Am. ed.'), 474; 2 Story 
 Eq. Jur. § 1414 ; Van Duzen v. Van Duzen, 
 6 Paige, 366; Davis v. Newton, 6 Met. 
 543, 544. See a discussion on this subject 
 of settlement, in such cases, in Parsons v. 
 Parsons, 9 N. II. 309, 320 et seq. ; 2 Kent 
 (11th ed.), 141, 142. 
 
 In some of the States the power of afford- 
 ing such protection to the wife does not 
 exist. See 2 Kent (11th ed.), 141, 142; 
 Parsons v. Parsons. 9 N. H. 309, 320 et 
 seq.; Yoke v. Barnet, 1 Binnev, 358; Mat- 
 ter of Miller, 1 Ash. 323. 'In Sawyer 
 V. Baldwin, 20 Pick. 387, in reference to 
 securing a provision for tlie wife, in such 
 ca^es, the Court remark, tbat the '' prac- 
 tice prevail* to some extent in New York, 
 but is repudiated in other States. It would 
 seem to be repugnant to what we deem 
 the legal rights of tbfi husband, and would 
 never Ite carried so far here as it has been 
 in England." But in I)avis v. Newton, 
 6 Met. 543, speaking of the wife's right to 
 a suitable sdlowance, in sucb ca«es, the 
 Court remark, tbat it " is an Equity which 
 Courts will ujibold in all cases where the 
 husband, his creditors, or his assignees 
 have occasion to come into Court to obtain 
 posses'-ion of the j)roperly, and wherever 
 a Court of E(|uity can, in any form, exer- 
 cise jurisdiction over the subject." "The 
 authority of tim Court to miike such allow- 
 ance is a well-estiiblished principle of 
 Equity, and has been recognized by this 
 Court." Per Shaw C. J. in Gardner r. 
 HfKif>er, 3 (irav, 398, 404; see Gassett v. 
 Grout, 4 Met. 488. 
 
 Mr. Chiinc-llor Kent, 2 Kent (11th ed.), 
 141, 142, remarks, that, "though such a 
 protection cannot be all'orded to the wife 
 m Pennsylvania, where there i* no Court 
 of rhancery, nor in New Ilainpshire, 
 where Equity powers, to a sfiecific extent 
 only, nre conlV-rrf-d by Statute upon the 
 Supreme Court of common-law jurisdic- 
 
 tion : yet I presume that it exists in most 
 of the other States where Courts are estab- 
 lished with distinct Equity powers, ac- 
 cording to the English system, or with 
 legal and equitable powers united, accord- 
 ing to the more general prevailing practice 
 in the United States. It exists in (Georgia, 
 MnPi'land. and Tennessee, and in the latter 
 State protection is even afforded in their 
 Courts of Law. Corlev )•. Corlev, 22 Geo. 
 178; M'Elhattan v. Howell, 4 Hayw. 19; 
 Duvall r. Farmers' Bank of Maryland, 
 4 Gill & J. 282." So in Maine, tucker 
 V. Andrews, 13 JIaine, 124. For other 
 States, see Heath v. Heath, 2 Hill Ch. 104; 
 Myers v. Myers, 1 Bailey Eq. 24; Helm v. 
 Franciscus, 2 Bland, 545; Tevis r. Rich- 
 ardson, 7 Monroe, 660; Durr r. Bowver, 
 
 2 M'Cord, 368; Argenbright v. Campbell, 
 
 3 Hen. & M. 144. In North Carolina, if 
 the aid of a Court of Equity is re(iuired 
 by the husband to enable him to take pos- 
 session of his wife's property, he must 
 make reasonable provision for her. But 
 in that State the wife cannot, bj' a suit in 
 Equity, stop him, though he be insolvent, 
 from taking possession, unless her claim 
 be founded upon a marriage settlement. 
 Brvan v. Brj-an, 1 Dev. Eq. 47; Allen v. 
 Alien, 6 Ired. Eq. 293; 2 Kent (11th ed.), 
 142, 143. 
 
 The wife's equity extends as well to 
 real as to personal property. Moore v. 
 Moore, 14 B. Mon. 259. ' In this last 
 case it was allowed to her out of the pro- 
 ceeds of lands wliich descended to her 
 during coverture; and she was permitted 
 to assert this right In' original bill. Where 
 a wife joined her husband in the convej'- 
 ance of lands, and the husband becime 
 insolvent before the price was paid, a suit- 
 able settlement was decreed to her out 
 of the price. Laj' «. Brown, 13 B. Mon. 
 295. 
 
 It is a vain attempt, says Mr. Justice 
 Story, to ascertain by general reasoning 
 the nature or extent of the above doctrine, 
 for it stands upfin the practice of the Courts. 
 2 Stnrv Eq. .Jur. § 1407; 2 Kent (Uth. 
 ed.), 141. 
 
 1 Even where the fund is not in Court, 
 see Henry v. Ogle, 1 C. P. Coop. t. Cott. 
 447. 
 
 2 Sturgis r. Champncys, 5 M. & C. 97; 
 Ilansciti r. Keating, 4 Hare, 1; Wortham 
 r. Peniberlon, 1 I)e G. i*;- S. 644; but sen 
 (ileaves v. Pavne, 1 De <;.,.!. X: S. K7. In 
 Smith V. Matthews, 3 De G., V. & .1. 139, 
 it was held that tlie pf>ssii)le estate by 
 curtesy of the husband could not be inter-
 
 92 
 
 SUITS BY PERSONS WHO ARE UNDER DISABILITY. 
 
 Vu. III. § 7. in>,. lifo-ostato.^ Slio may liovsi'lt' inslitutc })rocceclinu;s for tlie pur- 
 jiose of raisino; her equity ; ^ but it cannot be enforced until the 
 
 witV niav licr- 
 selt' instltuto 
 proooodiiitjs 
 to niiso tlie 
 equity ; 
 attaches to 
 wife's life-in- 
 terest. 
 
 "Wife's equity 
 to a settle- 
 ment is dis- 
 tinct from her 
 rifjht by sur- 
 vivorship. 
 
 Eule as to her 
 equity is not 
 ot^ modern 
 adoption. 
 
 Will not 
 attach where 
 husband 
 alone has the 
 right to sue. 
 
 Court is about to make a deci-ec or order directing payment, trans- 
 fer, or ai)])lioation of tlio ])ro})erty.* 
 
 The question Avhetlier the right attaclies to the wife's life-in- 
 terest has been much discussed ; but it is now determined that, 
 subject to the above-mentioned exception, it does so attach.* 
 
 Tlie right of a married woman to have a settlement made upon 
 herself and her children, out of her ])ersonal property wliicli is the 
 subject of a suit in Equity, is totally distinct from her right by 
 survivorsliip to such of her choses in action as have not been 
 reduced into possession during the joint lives of herself and hus- 
 band. The right by survivorshi]) is a legal riglit, a]>plying equally 
 to her legal and equitable interest ; but lier right to a settlement 
 dejaends upon the peculiar rule of Courts of Equity before alluded 
 to, which, standing in loco 2^<^'i'6ntis with regard to a. feme covert^ 
 ^\\\\ not suffer the husband to take the Avife's portion until he has 
 agreed to make a reasonable provision for her and her children, 
 unless they are saj;isfied that it is with her free consent that it is 
 paid over to him.^ This rule of Equity is not of modern adoption, 
 but has been recognized and acted upon from a very early period. 
 In the case of Tanfield v. Davenport^ Avhich occurred in the 
 14 Chas. I., Lord Keeper Coventry takes notice of it ; and it has 
 been acknowledged and followed in all subsequent cases, Avhere a 
 wife has had a demand in her own right, and application has been 
 made to a Court of Equity to enforce it.'' "Where, however, the 
 demand is not one which accrues to the husband in right of his 
 wife, although he may be entitled to it under a contract made 
 upon his marriage, yet if he alone has the right to sue for it, the 
 equity of the AA^ile to a settlement will not attach,* Thus, where, 
 in contemplation of marriage, the father of the intended Avife 
 covenanted to pay lOOOZ. to the husband on man-iage, and also 
 
 fered with. See Barnes v. Robinson, 9 Jur. 
 N. S. 245; 11 AV. R. 276, X. C. S. 
 
 1 Tidd V. Lister, 3 De G., M. & G. 857, 
 861, 869; 18 .Jur. 543; and see Durham v. 
 Crackles, 8 .Tur. N. S. 1174, V. €. W. 
 
 2 Lady Elibank v. Montolicu, 5 Ves. 
 737; and cases collected in IJosvil v. 
 Brander, 1 P. AA'^ms. 459; Buncombe v. 
 Greenacre, 2 De G., F. & .1. 509; 7 Jur. 
 N. S. 175; I'ostgate v. Barnes, 9 .Jur. N. 
 S. 456; 11 W. It. .356, ^^ C. S. ; Barnes v. 
 Robinson, 9 Jur. N. S. 245; 11 W. R. 276, 
 V. C. S. 
 
 3 Jewson I'. Moulson, 2 Atk. 419; De 
 La Garde f. Ix'ni|)riere, 6 Beav. 344; Os- 
 borne V. Morgan, 9 Hare, 432; W'allace v. 
 Auhljo, 1 Dr. & Sm. 216 ; 9 Jur. N. S. 687 ; 
 2 X. R. 567, L. JJ ; 1 De G., J. & S. 643. 
 
 4 Sturf^is V. Champneys, 5 M. & C 97; 
 Wilkinson r. CliHrlcsworth, 10 Beav. 324; 
 see, however, iShillito v. Collett, 7 .lur. 
 N. S. 385, where V. C. Kindcrsley held, 
 that an annuity given to a married woman 
 by will, might be paid to her husband 
 without her consent in Court. 
 
 5 Jewson V. Moulson, 2 Atk. 419. 
 
 6 Totliill, 114; and see 1 Spence Eq. 
 Jur. 581, 590. 
 
 ' Jewson V. Moulson, 2 Atk. 419; Milner 
 v. Colmer, 2 I'. Wms. 641; Adams v. 
 Peirce, 3 P. AVms. 1 1 ; lirown v. Elton, 
 ih. 202; Harrison v. Buckle, 1 Stra. 239; 
 AV'inch. v. Page, Bunb. 86; Middlecome ?;. 
 Marlow, 2 Atk. 519. 
 
 8 Brooke v. Hickes, 12 W. R. 703, V. 
 C. S.
 
 MARRIED WOMEN. 93 
 
 that his heirs, or executors, should, Tvithin six months after his Ch. in. §7. 
 
 death, pay the ftirther sum of bOOI. to the husband as the re- ^" y '■ 
 
 mainder of the wife's portion, it was hekl, that the wife was not 
 entitled to a settlement out of the 500?., as it never was her money, 
 and was only a debt due to the husband from the father.^ 
 
 In order to ascertain whether the mamed woman waives her How equity 
 equity to a settlement, and consents to her husband taking the '^^^^ ^ 
 property, the practice of the Court is, when she is resident in Lon- 
 don, or is willino- to attend, for the Judge to examine her apart on examina- 
 
 ? , . /. -11 1 tiou by the 
 
 from her husband, at the time of pronouncmg the decree or order court. 
 disposing of the fund : - in which case, a note of the examination 
 is made by the Registrar in Court, and is embodied in the decree 
 or order. K the mamed woman is unable or unwilling to attend 
 the Court, o^ving to her residence in the country or other cause, By commis- 
 her examination may be taken by commissioners, under an order an orden" ^^ 
 specially appointing them for this purpose.^ Such order may be order, how- 
 made in various fonns, and at difierent stages of the proceedings, ot't'^'^ied; 
 Thus, where, on pronouncing the decree or order deahng with the yhere ftmd 
 
 ' ' ^ , , ^ , , . -,. , . ^. n dealt With at 
 
 ftind, it IS suggested by counsel that an immechate exammation ol the hearing; 
 the wife by commissioners is intended, the Court, to save expense, 
 ■will sometimes direct the fund to be carried over to the separate 
 account of the wife, and by the same order aj^point the commis- 
 sioners, reserving liberty to apply : in which case, on completion 
 of the examination, an appUcation for pajTuent of the fund 
 may l>e made by petition,* or, in cases where there is jurisdiction 
 at chanibers, by summons.^ Or, the Court Avill direct the drawing 
 up of the decree or order to be suspended for a few days, to aftbrd 
 an opportunity of taking the examination in the interval : in the 
 latter case, an ex 2yctrte summons ^ is thereupon taken out for an 
 order to appoint the commissioners ; and when the examination 
 has been completed, the matter is mentioned again to the Court, 
 and the decree or order is directed to be drawn up, embodying 
 therein the result of the examination. 
 
 Where, in anv case, a fund has been earned over to the wife's after fund 
 
 curricQ overs 
 
 separate account, an api)lication to deal Avith it may be made by 
 petition,' or, where there is jurisdiction at chambers, by summons.* 
 When made by jjetition, the usual course is to get the petition and petition 
 answered for a day sufiiciently distant to allow of the examination *° ^"^ °" ' 
 being taken in the mean time; on the petition being thus an- 
 
 1 Brett V. Forcer, 3 Atk. 403. For case ford »'. Bawden, 1 id. 512, and note (a) and 
 
 of a le(;acy given to husband and wile cases cited, 
 jointly, see Atcheson v. Alcheson, 11 Beav. » See form, Scton, 058, No. 4. 
 
 485 488. * ''•"■ form, see Vol. III. 
 
 i'On this subject see Seton, 657, C71; ^ /(,i,i, 
 
 1 BriL'hts H. & W. 88; 2 Story V.q. « I/juL 
 
 Jur. § 1418, and cases cited; Ward v. 7 JOid. 
 
 Amory, 1 Curtis, 41«, 432; Sperling v. » JOid. 
 
 Kochtort, 8 Summer's Ves. 175, note; Bin-
 
 94 
 
 SUITS BY PERSONS "WHO ARE UNDER DISABILITY. 
 
 rii.iii.§T. 
 
 or snnimons 
 to pay out. 
 
 Consent in 
 court, or at 
 chambers, on 
 petition or 
 summons, to 
 pay out. 
 "Who may be 
 commission- 
 ers. 
 
 Examination 
 how taken. 
 
 Examination 
 abroad: how 
 taken. 
 
 sworoil, an ex parte summons ^ is taken out at chambers lor an 
 oriler to appoint the commissioners, and the examination is taken 
 tliereon before the petition is liearJ. If the petition, in any case, 
 is brought on before the wife is examined, an order to examine 
 her will be made, and the })Ctition will be ordered to stand over 
 till the return thereto ; ^ after such return, the jietition will be 
 placed in the paper and disposed of. 
 
 If the ajijilication for })ayment out is made by summons, evi- 
 dence of tlic title to the fund should be adduced on the hearing, 
 and the summons will be adjourned till after the examination : to 
 procure which, a summons^ is next taken out for an order to 
 appoint commissioners ; and when the examination has been i^er- 
 fected, the summons to \:)i\y out is brought on again, and an order 
 made. 
 
 The man'ied woman may, however, attend the Court at the 
 hearing of the petition, or the Judge at chambers, on the summons, 
 to ])ay out the fund, and give her consent, so as to save the expense 
 of an examination by commissioners.* 
 
 It is usual, but ;not essential, to appoint professional persons as 
 commissioners ; and they must not be concerned for the husband 
 in the matter to which the examination relates; but it does not 
 appear to be the practice to require an affidavit of their htness, 
 unless, perhaps, Avhere they are to act abroad and do not seem, by 
 their descriptions, to be legal practitioners or public functionaries. 
 Three or four jDcrsons are ordinarily appointed, two of whom may, 
 and usually do, act without the rest. An examination by one 
 commissioner only is not deemed sufficient. 
 
 The married woman, on attending the commissioners, is exam- 
 ined by them secretly and apart from her husband,^ to whom, in 
 what manner, and for what purpose she is willing and desirous 
 that the fund should be disposed of; they read over to her the 
 order under which the examination is taken, and explain to her its 
 purport; the examination is taken in wanting, and is signed by 
 her ; a certificate of the examination, written at the foot thereof, is 
 then signed by the commissioners; an affidavit verifying all the 
 signatures is made; and the examination, certificate, and affidavit® 
 are filed at the Record and Writ Clerks' Office: whence office 
 copies are jirocured. 
 
 Where the married woman is abroad, an order will be made 
 
 ^ The liusband, or his solicitor, or any 
 person connected with them, should not 
 be present at tiiis examination ; see lie 
 Benilvshe, 3 Jur. N. S. 727; 5 W. li. 816, 
 V. C." K. 
 
 6 l"or forms, see Vol. III. ; and see Be 
 Tasburgh, 1 V. & B. 507., 
 
 1 For form, see Vol. III. 
 
 2 See form of order, Seton, 058, No. 4. 
 8 For form, see ^'ol. III. 
 * It seems a Chief Clerk has no power 
 
 to take the examination of a married 
 woman: see 15 & 16 Vic. c. 80, § .30. For 
 form of order, where the examination is 
 taken at chambers, see Seton, 658, No. 3.
 
 MARRIED WOMEN. 95 
 
 appointing commissioners resident there ; ^ and the mode of taking Ch. in. § 7. 
 and authenticating an examination out of the British dominions, '— ■ y — ~^- 
 is exemplified by tlie folloT^-ing case. In Minet v. Ilyde^ tlie order 
 was, that she should appear before some of the plaintiffs, and a 
 magistrate of Leyden, to be privately examined as to her consent : 
 such examination to be in writing, in the French or German 
 language, and to be signed by her, and attested by notaries public, 
 whose certiticate thereof was also to be in Toitiug, either in the 
 French or German language. It was also ordered, that such sign- 
 ing and certificate should be verified by the affidavit of some 
 credible witnesses, either in the German or French language, 
 before a jDroper magistrate of Leyden ; and that the examination, 
 certificate, and afficUiAit should be translated into English by cer- 
 tain notaries public, sworn to the truth of their translation.^ 
 
 Where, however, the wife is domiciled abroad, and in a country Where wife 
 by the law of which there is no equity to a settlement, but the abroad.^ 
 whole is payable to the husband, her consent is not necessary ; * 
 that the law is so must, however, be j^roved as a fact in each 
 case.^ 
 
 Before a fund belonging to a married woman will be paid out Affida\-it 
 of Court,*' an affidavit is required to be made by the husband and ^^^^ ®^"^®" 
 wife, that no settlement, or agreement for a settlement, has been 
 made ; or, if there is any settlement, or agreement, then an affidavit 
 by them identifying the instrument, and stating that there is no 
 other ; ^ and the instrument must be produced. Where produced 
 in Court, the counsel of the husband and wife certifies that he has 
 carefully perused it, and that the fund in question is not afi'ected 
 thereby ; ^ but where produced in chambers, an affidavit by their 
 soUcitor to the like effi3ct is required.^ On an aj^plication for an 
 order to examine the wife, unless the affidavit of no settlement be 
 produced, the order will direct that it be made before the exami- 
 
 1 Parsons v. Dunne, 2 Ves. S. 60; Bour- M. R., legacies of 250^ each to a French- 
 dillon V. Adair, 3 Bro. C. C. 237 ; Gibbons man's daughters, married to French sub- 
 V. Kibbey, 7 Jur. N. S. 12'j8; 10 W. U. jects, were ordered to be paid to tiie wives. 
 65, V'. C. K. ; Wcdderburn v. Wedder- " See llougii t'. Kyley, 2 Cox, 157 ; El- 
 burn, M. It. in Cliainb. 5 Aug., lStJ4. rinfjtfin v. I'^lrington, 4 Drew. 645. 
 
 2 2 IJro. (J. C. CU3. 1 For forms, see Vol. HI. When the 
 » 2 15ro. C C. ed- Belt, p. 002, n. 1 ; joint aliidavit cannot be obtained, the 
 
 see also I'arsons v. Dunne, Belt's Sup. to Court has been sati-^lied with other evi- 
 
 Ves. .S. 270. dence, Rowland v. Oakley, 14 .Jur. S45, V. 
 
 •« Campbell o. French, 3 Ves. 321; Dues C. K. 15.; Anon., 3 Jur. N. S. 839, V. C. 
 
 V. Smith, .Jac. 544; Anstruther v. Adair, W. As to tin; alHdavit rcquireil where the 
 
 2 M. iSi K. 513; llitclicock v. CleiMliiien, wife was dead, and an aliidavit of no set- 
 
 12 Buav. 534; M'Cormick o. Garnett, 5 tiement could iiol ijc obt^iined, sec Clarke 
 
 De G., M. & (i. 278; 18 .Jur. 412; see, v. Woodward, 25 Beav. 455. W'iicre the 
 
 however, Hchwabacher v. Becker, 2 Sm.iSc settlement was Scotch, the Court required 
 
 G. Apj). 4; but if the/l-me cowrl is a ward the aliidavit of a Scotch advocate that it 
 
 of Court, tli(! ca.se is dill'erent, and the (li<l not all'ect the fund, /ic Todd, Sliantl f. 
 
 Court will direct a settlement. In rt Twee- Kidd, lit ISeav. 582. 
 dale'.M Settlement, .Johns. lO'J. » See form of recital thereof in Seton, 
 
 '' M'Cormick v. Garnett, ubi su/t. In 657, No. 2. 
 Sutherland v. Young, 5 L. T. N. S- 738, « For form, see Vol. III.
 
 96 
 
 SUITS BY PERSONS "WHO ARE UNDER DISABILITY. 
 
 C^Il.III.5 
 
 Consent of 
 wife : at what 
 stage taken. 
 
 Not taken, if 
 under age. 
 
 If wife con- 
 sent, Court 
 cannot refuse 
 to pay fund 
 to husband;' 
 
 nation is taken :^ in wirn'Ii case, it is usual to swear the afliduvit 
 before one of the conunissioncrs njipointed by the order, if lie is 
 competent to administer an oath in Chancery, Where the mar- 
 riage is not otherwise ])roved, the alhda\'it should state the time 
 and place of the marriage, and a certificate thereof should be ex- 
 hibited.- 
 
 As a general rule, the consent of the Avife will not bo taken by 
 the Court until the amount of the fund is clearly ascertained * 
 exce]>t Avhere it is subject only to a deduction for costs ;^ but her 
 consent has been taken to the part ascertained from time to time.^ 
 Formerly, it was not the jiractice of the Court to direct a fund 
 belonging to a married woman to be paid out of Court at the 
 hearing of the cause ; "^ but it was directed to be transferred to a 
 separate account, usually entitled the account of the liusband and 
 wife ; and after such transfer, a petition was presented for payment 
 out of Court of the money so transferred.'' Noav, however, where 
 the wife appears in Court and consents, the fund may be directed 
 to be paid out at the hearing of the cause, or on further considera- 
 tion.^ 
 
 If the wife be not of full age, she is incaj^able of giving her 
 consent; in that case, therefore, the Court will not examine her, 
 but will require the husband, in case he aj)plies to this Court, for 
 her equitable property, to make a j)roper settlement upon her,^ 
 If the wife is of age, and persists in giving her consent, and 
 waiving her equity to a settlement, it appears tliat the Court can- 
 not refuse to act in accordance with her wisli.^" In Ex ^Kirte 
 Iligham^^ however, Loi'd Ilardwick considered himself entitled to 
 object to the Avhole fund being paid over to the husband, who was 
 in trade, even though the wile consented ; but in the previous case 
 of WiUats V. Cay^'^ where th^ wife had appeared in Court, and 
 being examined desired that the whole money might be paid to 
 her husband, the Master of the Rolls, although the parties had 
 married without the consent of the wiie's relations, and the hus- 
 band ai)i>eared to be insolvent, refused to refer it to the Master to 
 
 8 13 & 14 Vic. 0. 35, § 28 ; and see ante, 
 p. 93. 
 
 5" Stubbs V. Sargon, 2 Beav. 496 ; Abra- 
 ham V. Newcombe, 12 Sim. 566. As to 
 the course, where the wife is non compos, 
 see Caldecott v. Harrison, 8eton, 663. 
 
 10 See 2 Story Eq. Jur. § 1418, note; 
 Murray «. LordKlibank, 10 Sumner's Ves. 
 84, and note ; Ward v. Amorv, 1 Curtis, 
 419, 432 ; Sawyer v. Baldwin, 20 Pick. 378, 
 388. 
 
 11 2 Ves. S. 579. Tlie ground of this 
 decision appears to have been, that the 
 lady had been a ward of Court; see also 
 Biddies %\ .Jackson, 26 Beav. 282; 3 De G. 
 & ,J. 544; 4 .Jur. N. S. 10G9; 5 id. 901. 
 
 12 2 Atk. 67. 
 
 1 See form of order, Seton, 658, No. 4. 
 The V. C. Kindersley requires the afiida- 
 vit to be produced before the order to ex- 
 amine is made, Seton, 663. 
 
 ^ See form of aftidavit in Vol. III. 
 
 8 Sperling v. Kochfbrt, 8 Ves. 164, 178; 
 Woollands y. Crowther, 12 Ves. 174, 178; 
 Jernegan v. Baxter, 6 Mad. 32 ; Moss v. 
 Dunlop, 8 AV. K. 39, V. C. W. S. C. nom. 
 Anon., 5 .Jur. N. S. 1124. 
 
 ■* Backer f. I'acker, 1 Coll. 92; Mus- 
 grove V. l'"lood, 1 .Jur. N. S. 1086, V. C. 
 W. ; Roberts v. CoUett, 1 Sm. & G. 138. 
 
 6 Powell V. Merrett, Seton, 661. 
 
 6 Campbell v. Harding, 6 Sim. 283. 
 
 1 Ibid.
 
 MARRIED WOMEN. 97 
 
 consider a scheme for securing a provision for the wife : observing, Ch. m. § 7. 
 
 that it was never done unless circumstances of fraud, or of com- ■ y '■' 
 
 pulsion on the part of the husband appeared; and that' a wife unless there 
 
 might as well dispose of her personal estate, over which she has stances™" 
 
 an absolute control, as of real estate, which she might do by join- '^'^"•^• 
 ing in a fine Avith her husband.^ 
 
 It woidd seem that, as long as the money remains in Court, the Consent may 
 
 wife may claim a settlement out of it, although she has consented he evoked 
 
 . •. 1 • • -\ J. -t 11 1 , before actual 
 
 tojts bemg paid to her husband; or that, at any rate, this is so payment out. 
 where she was not aware of material circumstances at the time ol 
 giving her consent.^ 
 
 It seems that, where a wife's consent has been akeady given Second ex- 
 upon her examination before another competent tribunal, she need when'dLs-' 
 not be again examined in a Court of Equity ; thus, in Camjihell v. P^sed with. 
 French,^ Lord Kosslyn did not think it necessary to issue a com- 
 mission to take the examination of a manied woman residing in 
 America, as she appeared to have been examined under a commis- 
 sion issued by the government of Virginia, and had consented to 
 a power of attorney to receive the legacy, wliich had been executed 
 by her husband. And so it has been held, that where a married 
 woman is entitled to a share of money arising from the sale or 
 mortgage of an estate which has been mortgaged or sold, and in , 
 
 order to effect such sale or mortgage she has joined in levying a 
 fine of lier share, and for that purpose has undergone the usual 
 examination in the Court where such fine has been levied, she will 
 be barred, by the fine, of her equity for a settlement.* 
 
 The right of a married woman to have a settlement made of. Consent dis- 
 or out of, a fund in Court, arises, however small the fund may be ; ^^"^ ^'.''.f^r 
 but if it is under lilJU^., or is likely to be reduced thereto by costs,^ 200/., or lo;. 
 or produces less than 10^. a year,« she may waive her equity to a ^*'' '"^'""' 
 settlement without being separately examined.^ 
 
 When the Accountant-General is <lirected to ])ay or transfer any Effect of 
 sum of money or stock to an uiimaiTicd woman, and she marries "»;';™>Keona 
 before payment or transfer, and the sum does not exceed 200^., or I'rcVio'iiiy 
 10/. a year, the Accountant-General may pay or transfer the same Ji'id'to 'the ''*" 
 
 1 See Milner v. Colmer, 2 P. Wins. price: Geddes ex parte, i Rich. En. 301- 
 
 630, (i42; l.aiioy v. Athoi. 2 Atk. 444, or it miiy I'e voluntarily waived: Ward r! 
 
 448; OMham v. Hughe, ib. 452; Hearle Aniorv, 1 Curtis,41U; fee now 3 & 4 Wdl 
 
 V. Greenhank,3 Atk. tJli.O, 700; Parsons «. IV. c. 74 § 77, substituting an acknowl- 
 
 Dunne. 2 \ es. S. (iO; Minct v. Hyde, 2 ed^'ed deed for a fine: Shelford, U. P. 
 
 IJro. L. C. 6<53; Dimmoch v. Atkinson, Stat. 389. 
 
 3 Pro. C. C. II*.''.; l.liis /;. Atkinson, ib. 6 Koberts v. Collctt, 1 Sm. & G. 138; 
 
 OO.j; lloorl V. liurlloM. 4 i'.ro. (J. C. 121. but sec Sporic v. Parnaby, 10 .lur. N. S. 
 
 f Uat-on r. Mar.>.hall, 17 Peav. 303. 1142, V. C. S. 
 
 3 3 Ve.. 321, 323. yee Seton, 600; Ord I. 1. 
 
 • May V. Po|>er, 4 Sun. 360; Wright v. 7 Ji^ Kincuid, 1 Drew. 320. Tiie case- 
 Arnold, 14 P iMon. 038. Ihe wife may of Fod.jii /). I'iiiiiev, 4 Puss. 428, is not 
 waive her right by [..Tmiltiiig the con- iii.w binding, lie Cutler, 14 Peav. 220; 
 veyance: Wright /•. Arnolij, 14 P. M„ii. and see D.io.lv r. lliggiiis, 2 Jur. N. S. 
 688; 80 by joining in a receipt for the 1008, V. C. W." 
 VOL. I. 7
 
 98 
 
 SUITS BY PERSONS WHO ARE UNDER DISABILITY. 
 
 Oil. III. § 
 
 Where fund 
 exceeds tlie 
 above limit. 
 
 Examination 
 required, 
 thouorh pay- 
 ment desired 
 to wife on her 
 separate re- 
 ceipt. 
 
 Consent not 
 taken, where 
 property is a 
 remainder or 
 reversion. 
 
 When it con- 
 sists of a re- 
 mainder, and 
 there is a 
 power of ap- 
 pointment m 
 the survivor, 
 quceref 
 
 to llio woman and lu'.r liusband, u]ion jiroof of the niarriage, and 
 siu'li alVulavit of no sottlonu'iit as lias boon niontit>nod above ;^ or, 
 in case there has been a settlement, upon the aftidavit of the 
 solicitor, that in his judgment the settlement does not affect the 
 fund.^ But where the fund in Court exceeds the limit above 
 mentioned, a sj)ecial order for payment is necessary: wliich can be 
 obtained at chambers, on ex 2)<^^'te summons,'^ supported by the 
 production of the order under which the fund was directed to be 
 paid to the woman, the Accountant-General's certificate, and an 
 atiithn-it by her and her husband of the marriage, and of no settle- 
 ment;'' or by ])etition,^ on tlie like evidence, where there is no 
 jurisdiction at chambers. 
 
 The Court will not dispense with the separate examination of 
 the married woman, in cases where it is proposed to pay the fund 
 to her sei)arate receii)t ; as that would be, in effect, the same as 
 payment to the husband.® 
 
 The rule of the Court appears to be, that the wife can only con- 
 sent to part with that interest which is the creature of a Court of 
 Equity : viz., the right wliich she has, in a Court of Equity, to claim 
 a ])rovision by way of settlement on herself and children, out of the 
 pro])erty which, at Law, the husband could take ])Ossession of in 
 her light.'' This equity arises upon the husband's legal right to 
 present possession ; and the principle has no ai)plication to a remain- 
 der or reversion, Avhich can only be passed to the husband when it 
 falls into possession.^ With respect to an interest of this descrip- 
 tion, it has been stated generally, that the Court will not allow 
 her, by any act of hers during coverture, to bind her future rights. 
 Without her consent, the Court will not deal with it or dispose of 
 it at all ; and her consent the Court will refuse to take.^ Thus, a 
 petition, which had for its object the payment to the husband of 
 a sum of money, to which the wife was entitled in reversion after 
 the death of her mother, was refused.^" 
 
 In Macarmick v. JBuller^^ however. Lord Ken yon M. R. made 
 an order, upon the consent of a married wojnan given in Court, for 
 the payment of trust money to her husband, which a2)pcars to be 
 
 1 Antt, p. 95. 
 
 2 Ord. I. 1. 2, 3. 
 
 8 See form in Vol. III. 
 
 6 Ibid. 
 
 6 Mawe V. Heaviside, 7 Jur. N. S. 817; 
 9 W. K. 649, V. C. K. ; Gibbons v. Kibbey, 
 7 .Jur. N. S. 1298; 10 W. R. 5.5, V. C. K. ; 
 and see Seton, 664; but see Clark v. 
 Clark, 1 W. N. 106; 14 VV. R. 449, V. C. 
 S., where, husband consenting, fund was 
 paid on separate receipt of wile. 
 
 " Pickard v. Roberts, 3 Mad. 385. 
 
 8 Ihvl 
 
 '' Per Lord Cottenham, in Frank v. 
 
 Frank, 3 M. & C. 178; Woollands «. 
 Crowcher, 12 Sumner's Ves. 174, Perkins's 
 note (a) and cases cited; 2 Story Eq. Jur. 
 § 1413, and notes and cases cited. She 
 may, however, now release her equity, 
 under the provisions of the 20 & 21 Vic. 
 c. 57. 
 
 10 Pickard v. Roberts, 3 Mad. 384 ; see 
 StiflFe V. Hveritt, 1 M. & C 37, 41; Rich- 
 ards V. Chambers, 10 Ves. 580; Ritchie v. 
 IJroadbent, 2 .J. & W. 456; Osborne v. 
 Morgan, 9 Hare, 434; and poit^ p. 117 
 et seq. 
 
 11 1 Cox, 357. 
 
 i
 
 MARRIED AVOMEN. 99 
 
 completely at variance Avith the rule laid down in the cases just Ch. Ili.§7. 
 
 cited. In that case, on the marriage of the plaintifl; a siuu of ^ y ^ 
 
 9000?. had been vested in trustees, upon trust to pay the interest 
 to the husband for life, and after his death to the ^dfe for hfe, and 
 upon the death of the sur\avor to pay the principal to such persons 
 as such survivor should direct ; but the husband, ha\-ing occasion 
 for the money, joined with the wife in executing a deed-poll, 
 whereby they appointed the money immediately to the husband ; 
 and upon personal examination of the wife in Court, the trustees 
 were dh-ected to pay the money to the husband. 
 
 Where ^feme covert was tenant in tail, in remainder after a sub- Under tenant 
 sisting lile-estate, of money to be laid out in land, it was held by ''^ ^^'^ ^'=*- 
 Sir John Leach M. K. that she could, by an arrangement with the 
 tenant for life, and on a i)rivate examination under the 7 Geo. lY. 
 c. 45, consent to the payment of a portion of the money to the hus- 
 band,^ But that Act, it is to be remarked, gave to the tenant in 
 tail in remainder an immediate right to apply, in concurrence with 
 the tenant for life, for the payment of the money out of Court ; so 
 that the order thus made under the Act was not at variance with 
 the rule above noticed, that the wiie can only consent to part with 
 that which the husband, in her right, has an immediate right to 
 reduce into possession. 
 
 As a general rule, where the money has arisen fi-om the sale of Disentailing 
 land, and is liable to be re-invested in land, the Court will take the ^vh",7di*f ' 
 consent of the married woman, without requiring the usual for- pensed with, 
 malities on a disposition of land.^ 
 
 In the case of Whittle v. Henning^ the important question came Where wife, 
 
 before Lord Cottenham, whether a man-ied woman, entitled under <'"t'^''^:'l '" 
 . . 1 , , • . . • n -, . \ reversion to a 
 
 settlement to a rexei-sionary interest m a lund in Court, could, by money fund, 
 obtaining assignments of all the interests in the fund previous to fntlrests?""' 
 that settled ujjon herself make herself absolutely entitled to the 
 wliole fund, so as to have it ])aid out of Court. It was held, after 
 
 1 lit .Silcock 3 liuss sea This Act is 9 Jur. N. S. 942; but see lit Watson vbi 
 
 repealed by 3 &4 VVili IV.c. /4, § 70, mp. For or.ler for payment to the hu- 
 
 and provisions sul)stituted by § /7 e< stq. band, on the wife's election to take money 
 
 ,, ^T '';'"'"r'' ''• '5"«'tl*;n, 1 Ves. J. 012; as land, see Seto.i, UOO; and after a di.i- 
 
 Rt Silcock, 3 Ku;_s. 30'J, under the repealed entailin- assurance and her examination 
 
 Act; /■x/.<,W. KllLson 2 Y cVc C Ivx. 528; it,id. \Nl,fre the fund was small, not ex- 
 
 H Tyler 8 V\ K .,40 V. C. AV ; lU feeding «()/., her examination was dis- 
 
 Hayes, W . K. /Cy, \. C. K.; lit Worth- pensed with, lit Clark, 5 N. IJ. 32 V C 
 
 ington, j6. n.; Seton, OiiO, under the prcs- S.; 11 Jur. N. S. 7; 13 W K 40] nom 
 
 ent Act. For other orders for payment WAW^ r. I{irmlnf;ham, WolvcHiiin'inton' 
 
 out to tenants in tail, witliout a disentail- and Stoiir Vallev Uailwav Co. lit (Jjiirkc' 
 
 ing assuraiiee, see .Sowry v. Sowry, 8 .lur. As t., \W formajlties rciuired bv the 3 & 
 
 Kail way, 30 Hea v. 21o; lit llolden, 1 W. woman, .see fShcltord, H. 1'. Stal. 402 tt 
 
 & M. 446; lit I oMen, 10 .lur. N. S. 308. «ey,, „nrl 717 tl st,,. ; and for precedents 
 
 V. C. .^.; lie W atson, lA. 1011, I.. .1,1. ; of disentailioK deeds. iO. Appx. • 2 I'ri- 
 
 Nottley V. I'almer, L. IC. 1 Ivp 241; 11 dcaux Cnv. 431 t/ st>i. 
 Jur. N. S. !«i8, V. C. K. Such an order a 2 I'hil. 731; 11 JJeav. 222; Story v. 
 
 was refused by V. C. K. in lie 1 yideri, Tonge, 7 lieav. <Jl.
 
 100 
 
 SUITS BY TEKSONS AVIIO ARE UNDER DISABILITY. 
 
 Cn III. § 
 
 Examination 
 dispcnsi'ii 
 witli, wlioii' 
 tlio tunii is 
 her separate 
 estate, 
 
 except where 
 her husband 
 is to be the 
 recipient. 
 
 Where she 
 refuses to pive 
 her consent. 
 
 an olaborato Judgnu'iit, mid a ri'\ ii-w uf all llic cases, that she could 
 not do so. 
 
 Where ]>ro])erty is settled to the separate use of a mari-ied 
 Avouian, her seiiarate examination is not necessary in order to j)ass 
 her interest to a purchaser. The i)rincii)le upon which this nxle 
 is founded is, that she is, as to that })roperty, a feme sole, and, as 
 such, has a disposing power OA'er it ; ^ and it ai)])lies as much to 
 reversionary property as to pro|terty in possession.^' Uj)on the 
 same principle, where a married woman to whom an annuity was 
 bequeathed for her separate use, joined with her husband in assign- 
 ing part of it for a valuable consideration, and she, the husband, 
 and the jnirchaser, afterAvaixls filed a bill against the execnitors of 
 the testator under whom the annuity was claimed : a doubt having 
 occurred whether, in such a case, a decree could be taken by con- 
 sent. Sir J. Leach M, R. Avas of opinion that it could, and directed 
 the decree to be drawn up accordingly.^ 
 
 But although, where ])ro2)erty has been settled to the separate 
 use of a married woman, the Court will give eflect to her aliena- 
 tion of such property, in the same manner that it gives eifect to an 
 alienation by a feme sole, the rule does not extend to transactions 
 with her husband, which are looked upon by the Court with con- 
 siderable jealousy; so much so, that the Court has refused to pay 
 the separate money of the wife to the husband, without the exam- 
 ination of the wife in Court.* It is not, however, to be understood 
 that a AAafe may not, in any case, dispose of her separate i)roperty 
 to her husband, unless by consent in Court, or before commission- 
 ers. Several instances have occurred where Avives, by acts in pais, 
 have parted with separate proiaerty to their husbands.^ It should 
 be observed, hoAvever, that such' gifts are never to be inferred with- 
 out A^ery clear CAddence.*' 
 
 If a married woman, ujion being examined apart from her hus- 
 
 1 Unless she is restrained from antici- 
 pation, see Symonds v. Wilkes, 12 W. R. 
 541, M. K. 
 
 ■^ Sturgis V Corp, 13 Ves. 190; and see 
 Keener". Johnston. 1 Jones & Car. 255; 
 see Sperling v. Kochfort, 8 Sumner's Ves. 
 175 and note (a) and cases cited; 2 Story 
 Eq. Jur. § 1413 iind notes. 
 
 •* Stiuson V. Ashley, 5 Russ. 4; but it 
 would seem that there must be an affidavit 
 of no settlement, Anon., 3 Jur. N. S. 839, 
 V. C. W. 
 
 4 2 Bright, H. & W. 257; Gullan v. 
 Trimbev, 2 .1. & W. 457, n.; Wordsworth 
 v. Davr'fll, 2 Jur. N. S. 031, V. C K.; and 
 see Vlilnes i'. Busk, 2 Ves. J. 498. In 
 Anon., 3 Jur. N. S. 839, belore referred to, 
 the fund was paid to the wife on her sepa- 
 rate receipt, without examination in Court ; 
 but, fjuwi-t, whether this was not done in 
 consequence of her living separated from 
 
 her husband. As to the mode by which 
 the husband can be excluded, where the 
 wife is entitled to stock for her separate 
 use. see Seton, G03. But see Jie Crump, 
 34 Beav. 570, where a fund settled to tlie 
 separate use of a married woman was 
 ordered to be transferred into the joint 
 names of herself and her husband. 
 
 5 I'awlet f. Delaval, 2 Ves. S. (5(33; see 
 Sherman v. Elder, 1 Hilton (N Y.), 178, 
 476. 
 
 6 Rich V. Cockell, 9 Ves. 369; Harvey 
 V. A.shley, cited 2 Ves. S. 671; 3 Atk. 607; 
 Co. Lift, by Harg. 3 a. n. A wife may 
 bestow her sepnrate property upon her 
 husband, by appointment or otherwise, as 
 well as upon a stranger. 2 Story Eq. Jur. 
 §§ 1395, 1396; Methodist Kpis. Church v. 
 Jaques, 3 Jonn. Ch. 86-114; Bradish v. 
 Gibbs, 3 John. Ch. 523; see Smith v. 
 Sweet, 1 Cush. 470-473.
 
 MARRIED AVOMEX. 101 
 
 band, refuses to give her consent to the money being paid to him, Ch. III. § 7. 
 
 the consequence of such refusal is, that the Court directs a proper ' r ' 
 
 settlement to be made, generally determining at once ^ the amount 
 to be settled, and referring it to chambers to approve of the neces- 
 sary deed ; and the proceedings are usually completed there, without 
 ftirther mention to the Court.^ If the fund is small, it is usual, for 
 the ])ui-})ose of saving the expense of a deed, to settle the fund at 
 once by the decree or order.^ 
 
 It is to be remarked, that although the Couit will, in general, Where a suit 
 oblige the husband to make a settlement upon his wife and |^°o*^P^°<l- 
 children of any property which he may be entitled to in right of 
 his wife, for the recovery of which it is necessary to resort to a 
 Court of Equity, yet, where there is no suit pending, the husband 
 is authorized to lay hold of his wife's property, wherever he can 
 find it." 
 
 There is no doubt that, pre\'iously to a bill, a trustee who is in trustee maj' 
 possession of the wife's property, real or personal, may pay the husband ^'^ 
 rents of the real estate to the hiisband, or may hand over to him 
 the personal estate ; ^ and the Court will not, upon bill filed, recall 
 it,® But the trustee may equally refuse to pay the husband till fu^e.™^"^ ^^' 
 comjtelled liy the filing of a bill, in order that the wife may obtain 
 the full benefit of the jn-otection afforded her by a Court of Equity; 
 and the circumstance that the wife joined with the husband in 
 making the demand is of no weight whatever.'' Where, however. After bill 
 a bill has already been filed, a trustee cannot exercise his discretion <]K'tl' trustee's 
 
 •' _ ' discretion 
 
 Upon this ]>oint ; as the bill makes the Court the trustee, and takes ceases. 
 away from the actual trustee his right of dealing with the proj^erty, 
 without its sanction. 
 
 With respect to the nature of the settlement made by the Court, Nature of set- 
 and the ]>roj)ortion of the interest given to the wife, no certain "'^■"*^'^'^' 
 rule can be laid down : the amount being entirely in the discretion 
 of the Court,^ and depending upon the particidar circumstances of 
 
 1 Coster V. Coster. 9 Sim. 597, C05; 4 .Jewson v. Moulson, 2 Atk. 419; 2 
 
 Napieri'. Xapier, 1 Dr. & Wiir. 407. Kent (Utli ed), 141; Howard v. Modaf, 
 
 '•2 For ("oniiH of orders, see .Scton, 6C4; 2 .Inhn. ('Ii. 20t); Thoiiins r. Sliepiiard, 2 
 
 and for tlic ()ractice at chambers, see pi>si, M'Cord (^h. 3G; Matter of Hume Walker, 
 
 Chap .XXIX. 1 Llovd & G. 159, cases Temp. Phmket; 
 
 8 Soton, t;(;5; /?« Cutler, 14 Heav. 220; 2 Storv Kq. Jiir, § 140.3, and notes; see 
 
 Haesliaw i\ Winter, 5 |)e (}. & S. 400; Van I'liips c. ^'all Dciisen. 4 I'aij^e, 04; 
 
 Watson r. Marshiill, 17 Ik-av 303; and Fry w. I'Vv, 7 I'aifre, 402; Wiles r. Wiles, 
 
 see iil)stra<'t of ord^r. ih. p. 305; lU 8 .^Id. 1 ; "I'ool r. Morris, 29 Geo. 374. 
 
 Kincaid, 1 Dri'W. 320; Wrif^ht v. Kin^. 18 ^ .Miirrny v. Lord F.libank, 10 Ves. 90. 
 
 Beav. 401; hutjcombe i'. (ircenacre, No *! Glaisfer « Hewer, 8 Ves. 200; Mac- 
 
 2,29 lir-av. 57H; for form of summons for (lulav v Philips, 4 Ves. 15; Mnrrav 
 
 the ."etllemi-nl of a fund, see Vol III. r. Flibank, 10 Ves. 90; 2 Story F(|. .hir. 
 
 Where the lmsb:ind refusi-d to execute tho § 1410. 
 
 netllemcnt, and the tru-tces declin"d to 7 lU Swan's Settlement, 12 W. R. 73S, 
 
 act, the liind was ordered to remain in V. C. W.; 2 If. & M. 34; but see May t;. 
 
 Court as settled, and the interest to be Armstrong, 1 W. N. 2.33, V. C. S. 
 
 ftaid to the wife for her sepiinite use for " Kennv v. Udall, 5 .lohn. Ch. 464; 2 
 
 ife, lU Butt, cited, Seton, 071. Kent (lltli ed.), 140, 141. This equity of
 
 102 
 
 SUITS BY TERSOXS WnO ARE UNDER DISABILITY. 
 
 Cii. III.§ 
 
 Hiisbiinil, 
 while main- 
 tiiiiiiiiL; wii'o 
 and ciiililron, 
 is usually al- 
 lowed the 
 whole inter- 
 est; 
 
 Seciis, the 
 whole, or a 
 portion, will 
 be sottknl im- 
 mediately on 
 them. 
 
 Amount to be 
 settled, 
 depends on 
 the particular 
 circum- 
 stances : 
 Cases where 
 the whole has 
 been settled. 
 Cases where 
 part only has 
 been settled. 
 
 v:\ch I'Mso. Tt' llio linsl):tn(l is living with lior, aiitl in:iiiit:iining 
 lur ;intl lior i-liiMrcii, 1u' will, in tlie absence of any special circum- 
 stanc-os, he allowed the interest on the whole, so long as he main- 
 tains her.^ When the htisband is not living with the wife and 
 maintaining her and her children, as when he has become bankrupt 
 or insolvent, or has deserted her, the whole, or some portion of the 
 fund will be settled, immediately, upon the wife and children. 
 "With regard to the aniount which will be settled, it has been 
 before observed, that this depends upon all the circiunstances of 
 each ])articular case;"'^ but it may be mentioned, that the whole 
 fund has been settled : where the husband was bankrupt, and had 
 received large advances fi-om the wife's father ; ^ where the husband 
 deserted his wife, and contributed nothing to her support ; * where 
 the husband was insolvent, and had received large sinns in right 
 of his wife ; ^ and where the husband was bankru])t, and had 
 deserted his wife ; " and in the recent reports, numerous cases will 
 be found in which, under the circumstances, the whole fund was 
 settle(h'' In other cases, the fund has been divided ; ^ and in the 
 older cases one-half has been frequently settled ; ^ but the rule that 
 
 the wife stands upon the peculiar practice 
 of the Court, and not on any general rea- 
 soning. Kcnnv t'. Udall, su/n-a ; 2 Story 
 Eq. Jur. § 1407; 2 Kent (11th ed.), 140, 
 141. 
 
 1 Bullock r. Menzies, 4 Ves. 798; Sleech 
 V. Thorincrton, 2 Ves. S. 560. Where the 
 husband lives with his wife, and maintains 
 her, and has not misbehaved, the course 
 is to allow him to receive the interest and 
 diviilends on all property. Kenny v. 
 Udall, .5 .John Ch. 464. 
 
 - riie Court may, in its discretion, give 
 the whole, or part onlj' of the property to 
 the wife, according to the circumstances 
 of the Ciise. Kenny v. Udall, 5 .John. Ch. 
 464; Haviland v. Bloom, 6 John. Ch. 178, 
 180, 181. The amount of such provision 
 must depend on circumstances, amongst 
 which the amount of the property, tlie 
 age, health, and condition of the wife, 
 the number, age, sex, and health of her 
 children, if any, would be fit subjects 
 of consideration. In this respect, in a 
 case direct!}' before the Court, it would 
 be proper for the Court to avail itself of tlie 
 aid of a Master, to inquire into and report 
 the circumstances, and to report what 
 would be a suitable provision for the wife. 
 Cases may be supposed, in which, if the 
 property were small, and had been kept 
 entirely distinct from that of the husband, 
 and where the exigencies of the family 
 were such as to require it. it would be 
 proper to appropriate the whole of such 
 property to the use of the wife and her 
 children. Davis v. Xewton, 6 Met. .544. 
 "The Court may, in its discretion, give 
 the whole, or part onl}', of tlie property to 
 the wife, accordit'g to the circumstances 
 
 of the case." 2 Kent (11th ed.), 140, 141 ; 
 Haviland v. Bloom, 6 John. Ch. 178, 180, 
 181. 
 
 3 Gardner v. Marshall, 14 Sim. 576, 584. 
 
 4 Gilchrist v. Cator, 1 De G. & S. 188 ; 
 lie Ford, 32 Beav. 621; 9 Jur. N. S. 740. 
 In Kernick v. Kernick, 4 N. R. .■.33, V. C. 
 \V., where the husband had deserted the 
 wife, but maintained their children, the 
 whole fund was settled on her for life; but 
 leave was reserved to bim to appi}', on her 
 death, in respect of the payment to him of 
 any part of the income during his life. 
 
 6 Scott V. Spashett, 3 M'N. & G. 599. 
 
 6 Dunkley v. Dunkley, 2De G., M. &G. 
 390, 396. 
 
 7 Re Cutler, 14 Beav. 220; Marshall 
 V. Fowler, 16 Beav. 249; Re Kincaid, 1 
 Drew. 326 ; Watson v. Marshall, 17 Beav. 
 362; Francis v. Brooking, 19 Beav. 347; 
 Barrow r. Harrow, 5 De G., M. & G. 782; 
 Gent r. Harris, 10 Hare, 384; Re Wilson, 1 
 Jur. N. S. 569, V. C. S. ; Koeber t'. Sturgis, 
 22 Beav. 588; Re Disney, 2 Jur. N. S. 206, 
 V. C. W.; Re Welchman, 1 Giff. 31; 5 Jur. 
 N. S. 886; Smith v. Smith, 3 GifF. 121; 
 Ward V. Yates, 1 Dr. & S. 80; Duncombe 
 ». Greenacre, 29 Beav. 578; 7 Jur. N. S. 
 650; Re Tubbs, 8 W. H. 270, V. C. K. ; 
 and see Re Grove, 3 Giff 575; 9 Jur. N. 
 S. 38; Re Merriman, 10 W. K. 334; Ker- 
 nick V. Kernick, 4 N. K. 533, V. C. W. 
 
 8 Napier r. Napier, 1 Dru. & War. 407; 
 Coster r. Coster, 9 Sim. 597; Kx purie 
 Pugh, 1 Drew. 202; Biigshaw I). Winter, 
 5 De G. & S. 466; Walker v. Drury, 17 
 Beav. 482. 
 
 9 .lewson V. Moulson, 2 Atk. 417,423; 
 Worrall v. Marlar, 1 (Jox, 153 ; 2 Dick. 
 647 ; Brown v. Clark, 3 Ves. 166 ; Pringle
 
 MARRIED WOMEN. 
 
 103 
 
 one-half is generally the proportion settled, which is often referred 
 to in the older reports, is, it would seem, not much regarded in the 
 more recent cases ; ^ where, however, the fund is under 1001, it is 
 the usual practice not to divide it.^ 
 
 The Court, however, will not permit the equity of the wife, to 
 maintenance out of her own fortune, to be defeated by any trick 
 or contrivance for that purpose on the part of her husband. If, 
 therefore, as in Colmer v. Colmer,^ he, with an intention to desert 
 her (which he afterwards carries into eftect), makes a fraudulent 
 conveyance of his and her jH-operty, upon trust to pay his own 
 debts, the transaction will not prejudice her right to maintenance ; 
 but the Court will follow her property into the hands of the trus- 
 tees, and order her an allowance suitable to her fortune, and the 
 cu-cumstances of her husband, although it may be necessary, in 
 order to effect that purpose, to resort to part of his own property 
 so vested in trust. 
 
 It is to be observed, that the Court ^vill, as has been shown, not 
 only ai)propriate the interest of a wife's equitable property, for 
 her sujiport, in cases where she has been deserted by her husband, 
 or obliged to leave him in consequence of his improper conduct 
 towards her, but it will, under similar circumstances, if a stranger 
 has advanced to the wife money for her maintenance, order it to 
 be repaid to him out of lier estate.^ Thus, in Guy v. Pearhes,^ 
 where it appeared that tlie wife was unjjrovided for; that her 
 husband, after having gone to sea and deserted her, had subse- 
 quently to his return neither cohabited with her, nor afforded her 
 any sui)port, but had since gone to the East Indies, and had not 
 been again heard of; and that it was unknown whether he were 
 living or dead ; and it also appeared that A. had made advances 
 to her of 30^. a year during the above period, which were her only 
 support : upon a])pIication being made to the Court, that so much 
 of the wife's stock staiKliiig in tlie Accountant-General's name as 
 would raise 21U/. miglit be sold, and the proceeds paid to A. in 
 satisfaction of his debt, and that a further sum of 5U/. might be 
 paid to the wife, and that the dividends upon the remaining fund 
 mi'dit in future be paid to her for licr su])]»ort, the a])plication Avas 
 granted : A. having made an affidavit, that he was induced to 
 make the advances upon the faitli of being rei)aid them out of the 
 above property. In pronouncing his judgment, Lord Eldon thus 
 
 V. Hodgson, lb. 617, 620; Steiiimetz v. 
 Halthin, 1 (Jlyn & .1. 64; Kxpnrtc O'Fer- 
 nill, ih. 347 ; Archer r. Gardner, C. I'. 
 Coop. 340; S|)irett r. WiUowsj Vl W. li. 
 734, V. C. S ; adinned 1)V I.. G-, I- li- 
 1 Ch. Ap. 520: 12 Jur N. S. 53«. 
 
 1 Re, Kincaid, 1 Drew. 320; Ward v. 
 YateM, 1 Dr. iS: S. f^o; Arclier r. Cardner, 
 C. 1'. Coop. 340; Spirett v. Willows, 12 
 
 W. U. 734; Re Tubbs, 8 W. R. 270, V. C 
 K. ; i)ut sen /ic (Jrovi', 3 <!iir. 57r);O.Iiir. 
 N. S. 3h; Re Grmit, 14 VV. K. I'.H, V. C. S. 
 
 2 Mos. 118, 121; sec alt-o Atliortoii v. 
 Nowell, 1 Cox, 220. 
 
 « 1 IJriglit, II. & W 258. 
 
 ■• 18 VcH. 106; and see Re Ford, 32 
 Beav. 621; Jur. N. S. 740. 
 
 Ch. III. § 7. 
 
 Right of wife 
 to mainte- 
 nance out of 
 her property, 
 cannot be 
 defeated by 
 contrivance 
 of husband. 
 
 Court will 
 order a 
 stranger to be 
 repaid his 
 advances for 
 maintenance 
 of deserted 
 wife.
 
 104 
 
 SUITS BY PEII^^OXS AVIIO AlIE UXDEll DISABILITY. 
 
 Cn in.§ 
 
 Wife not 
 entitled to 
 ninintenMHce, 
 if she leaves 
 her hu^iband 
 without 
 cause; 
 
 or has been 
 guilty of 
 gross miscon- 
 duct 
 
 Wife's 
 equity, as 
 against hus- 
 band's partic- 
 ular assignee. 
 
 Wife sur\-iv- 
 ing entitled 
 to arrears of 
 life-intere?t 
 not received 
 by husband 
 during cover- 
 ture. 
 
 o\])rosso(l liinisi'lf: '"■ T liiivo a slvono' iin]iv('ssion iijioii my luiiitl 
 that this has boon doiio, and, indojiondontly of prooedont, I tliink 
 tho Court may do it: as tlic husband, dosorting his wife, leaves 
 hor (Todit for necessaries, and would be liable to an action; and 
 altliouoli oxi'oution oould not bo had against the stock, the effect 
 might bo obtained circuitously, as lie could not relieve liimsolf, 
 except by giving his consent to the application of tliis fund." 
 
 If a husband be Avilling, and offer to maintain his wife, and she, 
 ■without sufficient reason, refuse to reside with him : upon his 
 application for the interest of her fortune, the Court will order 
 pa}^nent of it to him, oven tliough he decline to make a settlement 
 upon her.^ 
 
 As to the effect of the wife's misconduct upon her equity for a 
 maintenance, it is a trite observation, that persons appeahng to a 
 Coiirt of justice oxxght to enter it with clean hands ; i. e., they 
 must be worthy and proper to receive the redress which they 
 seek : hence it follows, that if the wife has been guilty of gross 
 misconduct, a Court of Equity will not consider her to be entitled 
 to protection. If, therefore, she has committed adultery, or has 
 eloped from her husljand without a sufficient reason, the Court 
 will remain passive, and not interfere at hor suit to allow her a 
 maintenance out of her equitable property.^ 
 
 The question whether, in the case of a particular assignee claim- 
 ing by purchase fi'om the husband for a valuable considei-ation, 
 the Court would or would not impose ujion him the condition of 
 making a settlement, was long considered doubtful ; ^ it is now 
 settled, however, that such an assignee of a capital fund is bound 
 to make a provision, out of the fund, for the wife and her chil- 
 dren;^ but the assignment for value by a husband, of his wife's 
 life-estate, will prevail against her,^ though he desert her, or leave 
 her destitute," during their joint lives, but not after his death.'' 
 On principle, however, it seems difficult to distinguish between 
 the case of a cajtital fund and a life-interest.^ 
 
 Although, in general, the Court allows the husband, whilst he 
 maintains his wife, the income of her property, yet it must not be 
 supposed that this is an absolute right on his j^art, or that, upon 
 
 1 Bullock V. Menzies, 4 Ves. 798; see, 
 however. Eedes v. Eedes, 11 Sim. 569; see 
 Fry 1'. Frv, 7 Paifre, 462; Martin v. Mar- 
 tin", 1 Hoff. (;h. 462; 2 Kent (lltli ed.), 
 140: 2 Story En. .lur. § 1426 and notes. 
 
 2 1 Bright, H. & W. 249 el st-fj ; Ball v. 
 j^Icintgomerv, 2 Ves. J. 191; Duncan v. 
 CHmpbell, 12 Sinn 016 ; Carr v. Easta- 
 brooke. 4 Sumner's Ves. 146, note (a); 2 
 Stor\' Eq. .lur. §§ 1419, 1426; but see lie 
 Lewiri's Tru<^tR, 20 Besiv. 378; Kernick v. 
 Kemick, 4 N. R. 353, V. C. W.; Greedy 
 V. Lavender, 13 Beav. 62. 
 
 8 Like V. Beresford, 3 Ves. 506, 511; 
 
 Pryor v. Hill, 4 Bro. C C. 139; Macaulay 
 V. Philips, 4 Ves. 19. 
 
 4 Macaula}' ?i. Philips, 4 Ves. 19; Franco 
 V. Franco, 4 Ves. 515, 530; .Johnson v. 
 .Johnson, 1 J. & W. 472 ; Carters. Taggart, 
 5 I)e G. & S. 49; 1 DeG., M. & G. 286; 
 Tidd V. Lister, 3 De G., M. & G. 857 ; 18 ,Jur. 
 543. 
 
 5 Elliott 5). Cordell, 5 Mad. 149 ; Stanton 
 V. Hall, 2 K. & M. 175. 
 
 6 Tidd V. Lister, 3 De G., M. & G. 587 ; 
 18 .Jur. 543. 
 
 1 Stifle V. Everitt, 1 M. & C. 37. 
 8 lid Duffy, 28 Beav. 386.
 
 MARRIED WOMEX. 
 
 105 
 
 the death of the husband, his representative is entitled to the 
 arrears of income accrued during his Hfe. As a general rule, the 
 wife surA-iving is entitled to all property of her own not reduced 
 into possession during the coverture ; and this applies to the 
 arrears upon life income which accrued, but were not received 
 during the coverture.^ 
 
 It is to be observed that, under the Marriage Acts, 4 Geo. TV. 
 c. 76, § 23, and 19 & 20 Vic. c. 119, § 19,^ in the case of a mar- 
 riage solemnized between parties under age, by false oath or fraud, 
 the guilty party is to foi-feit all property accruing from the mar- 
 riage ; but such property may, by order of the Court, made upon 
 information filed by the Attorney-General, be secured for the 
 benefit of the innocent party, or the issue of the marriage, as the 
 Court shall think fit, so as to prevent the oflTending party from 
 deriving any interest, in any estate, or pecuniary benefit fi-om the 
 man-iage. Under the Act, 4 Geo. IV. c. 76, it has been held, that 
 the Court has no discretion to mitigate the penalty, but in the 
 case of the property being that of the wife, is bound to settle and 
 secure all such property, past, present, and future, for the benefit 
 of herself, or the issue of the marriage.* 
 
 It appears formerly to have been considered, that if the husband 
 had made a settlement upon his wife upon their marriage,* the 
 wife would be debarred of her right to a further provision out of 
 any property which might subsequently accrue to her.* This is 
 not the nile,'^ but in such cases it depends upon the terms of the 
 settlement; for if it ajipears, cither by exjiress words or by fair 
 inference, that it was the intention of the parties that the husband 
 should be the purchaser of the ftiture as well as the present prop- 
 erty of the Avife, the Court will not require the husband to make 
 an adilitional settlement." In such cases, however, the settlement, 
 f(jr this purpose, must either ex]trcss it to be in consideration of 
 the wife's fortune, or the contents of it, altogether, must import it, 
 and plainly import it, as much as if it were expressed.'' But in 
 
 Ch. III. § r. 
 
 In case of a 
 clandestine 
 marriage, all 
 property 
 mu>t be set- 
 tled. 
 
 Effect of pre- 
 vious settle- 
 ment on 
 wife's equity. 
 
 1 Wilkinson v. Cliarlsworth, 10 Bc.-av. 
 824. 
 
 2 See ante, p. 10. 
 
 8 Attornc^'-Gencral v. Mullav, 4 Russ. 
 329; 7 iWv. 3r,l; Attornf-v-Oenenil v. 
 Liira.i, 2 Marc, 50*3; 2 Phil. 753; Attornev- 
 Gcueral r. Sevcrne, 1 foil. 313. 
 
 * Lanoy v. Duke- of Atliol. 2 Atk. 448; 
 BfR I'oin-lcxter v. .Icllries, 15 Gnittan ( \'a.), 
 863. 
 
 6 March v. Head, 3 Atk. 720; Tomkvn" r. 
 Ladbroke, 2 Vcs. S. 591. 5!i5; Stai'kpolo 
 V. Bf-aumonf, 3 Ves. 85), 98; I.ady Klibank 
 V. Montollcii, 5 Xvn. 737. 
 
 r.rookp 1'. MickPs. 12 W. H. 703. V. C. 
 S. Ill llavilMn'Ir. Bloom. O.Iolin <'h. 178, 
 the rule in l'',f|iiity wascon'^idered a« srttlfil, 
 that the wife'a erniify to a suitable j)ro- 
 
 vision for the maintenance of herself and 
 her children, out of her separate estate, 
 Ij'inj^ in action, was a valid right, and 
 extended, not only to property ivliich she 
 ownr-d tlum so/rt, but to prf)perty desc'ended 
 or dcvi.-if'd to her during coverture. A 
 new equity arises to the wile upon prop- 
 erty newly acfpiired, and attaeiies upon 
 it equallv as u|)on tliMt which she brought 
 with her ui)on marriage. In A'x pni'te 
 Heresforcl, 1 Desaus. 203, the Court, after a 
 full discussion, ordered a new settlement 
 in favor of the wife on a new accession of 
 fortune. See Carr v. Taylor, 10 .Sumner's 
 Ves. 574. 
 
 ' I'er Lord Kidon, in Druce r. Denison, 
 6 Ves. 396.
 
 106 
 
 SUITS BY PERSONS WHO ARE UNDER DISABILITY. 
 
 Cn. III.5 
 
 Wife's equity 
 is for bcnetit 
 ot'her iliil- 
 di^en, as well 
 as herself; 
 
 but ilocs not 
 survive to 
 children; 
 
 except where 
 contract or 
 order for set- 
 tlement in 
 her lifetime. 
 
 Wife's equity 
 may be 
 waived at 
 any time 
 before settle- 
 ment finully 
 ordered. 
 
 (loteniiiniiiLi,' tl\o ninount to be scttlod, any previous settlement is 
 ;il\\;iys t.ikeu into considerution ;^ as is also the amount of prop- 
 erty reeeived by tlie husbimd iii riglit of liis Avife.'^ 
 
 The Avife's equity to a settlement is not for lier benefit only, but 
 for that of herself and eliildren;^ and though, as has been before 
 stated,* she may, u])on her examination, waive it, she cannot take 
 the benefit of it for herself, and relinquish it on behalf of her 
 children. 
 
 But though the equity which compels the husband to make a 
 settlement out of the wife's personal estate is the right of the 
 children, as well as of the wife, yet it does not survive to the chil- 
 dren, after her death ; ^ but in such case, the Avhole fund will go to 
 the husband l)y survivorship.® It has been thought that Sir Thomas 
 Sewell M. R. in the case of Cockel v. Phipps^ acted in direct con- 
 tradiction to Lord Northington's decision upon this point in 
 Scriven v. Tapley. It appears, however, ii-om the very elaborate 
 judgment of Sir Thomas Plumer V. C. in Lloyd v. Williams,^ that 
 the former case has been erroneously reported, and that it does not 
 bear upon the question. 
 
 In JIurray v. Lord Elibanh^ and particularly in the above-cited 
 case of Lloyd v. Williams, all the previous cases, and the reasoning 
 upon the subject, have been collected and commented ui)on ; and 
 it a]ipears from them to have been the opinion, both of Lord El- 
 don, and of Sir Tliomas Plumer, that the children have no equity 
 after the death of the mother, unless there has been a contract, or 
 a decree or order, for a settlement, in her lifetime.^" Where there 
 has been a decree, it api)ears that under the former practice, the 
 children carried on the suit by supplemental bill, and now it is 
 apprehended that it would be done by an order under the 52d 
 section of 15 & 16 Vic. c. 86. 
 
 The Avife may, at any time before the settlement has been finally 
 ordered, apjiear in Court, or before Commissioners, and waive her 
 right, so as altogether to defeat her chiMren." She cannot, how- 
 
 1 Lady Elibank v- Montolieu, 5 Ves. 
 737; Freeman v. Fairlie, 11 Jur. 447, V. 
 C. E. ; Rt Erskine, 1 K. & J. 302. 
 
 ^ Green v. Otte, 1 S. & S. 2.50, 254; 
 Napier v. Napier, 1 Dr. & War. 407. 
 
 8 Murrav »'. Lord Elibank, 10 \'es. 84; 
 Llovd V. tVilliams, 1 Mad. 450, 4-59; He 
 Wa"lker, L. & (i. t. Suf,'. 209; Hodgeiis 
 ti. Hodpens, 4 CI. & F. .323; 11 Bli. 62; 
 2 Kent (11th ed.), 140; .Jolinson r. Jolinson, 
 1 J. & \V. 472, contra, would not now, it is 
 apprehended, be followed. 
 
 ■» Ante, p, 'j2. 
 
 5 Scriven r. Taplev, 2 Eden, 337; Amb. 
 509; Fenner v. Taylor, 2 K. & M. 190; De 
 la Garde r. Lempriore, C Be^iv. 344; Baker 
 V. 15MvM(.n,« Hare, 210; Lovett v. Lovett, 
 John.' 118; Wallace v. Auldjo, 2 N. K. 5ti7, 
 
 L. J.J.; 2 Dr. & Sm. 216; 9 Jur. N. S. 
 687; IDeG., J. &S. 643; 2 Story Eq. Jur. 
 § 1417 and note. 
 
 6 Wallace v. Auldjo, M auj). 
 
 7 1 Dick. 391. 
 
 « 1 Mad. 450, 464. 
 
 10 Ves. 84, 92 
 
 w 1 Mad. 467 ; and see Lloyd v. Mason, 
 5 Hare, 149, 152; Groves v. Clarke, 1 
 Keen, 132, 136; S. C. sub. num. Groves v. 
 Perkins, 6 Sim. 576, 584; but see Vaughan 
 V. Parr, 20 Ark. 600. 
 
 n Harrow v. Barrow, 4 K. & J. 409, 424; 
 and see liowe v. Jackson, 2 Dick. 004; 
 Murray v. Lord Elibank, 10 Ves. 84; 
 Martin v. Mitchell, cited, ib. 89; Stein- 
 metz V. Halthin, 1 Glynn & J. 64.
 
 MAEEIED WOMEN. 
 
 107 
 
 ever, after insisting npon lier rio-ht to a settlement as against her 
 husband's assignees in bankniptcy, subsequently "«-aive her equity, 
 and defeat her children's interest, except it be in favor of the as- 
 signees.^ After a contract entered into on the j^art of the husband 
 to make a settlement, it would seem that the wife can waive it as 
 far as her ovm interest is concerned, but not for her children.^ 
 
 It seems that if, after a reference to approve of a settlement, one 
 of the parties die before the settlement be approved of by the 
 Court, and there are no children of the marriage, the right of sur- 
 vivorship, as between the husband and the wife, is not afiected. 
 Thus, in Macmday v. Fhihps,^ Lord Alvanlcy M. R. laid it down, 
 that if the -s^-ife had died even after a proposal had been made by 
 the husband under such an order, the husband would have been 
 entitled. His Lordship, however, said, that he did not mean to 
 determine what the case would have been if the proposal had been 
 approved of by the Court, and a settlement ordered to be made, 
 as perhaps then the Coiirt would have considered it as actually 
 made ; and that he was far from detennining that, in such a case, 
 the settlement would be entirely at an end ; on the contrary, he 
 thought it would be binding, and that the accident would make 
 no difference. However, in Baldicin v. Daldinn^* Sir James 
 Parker V. C. held, that after the Master had approved of a settle- 
 ment, the wife, upon the death of her husband, might still repudiate 
 the settlement, or set up her claim by survivorship. 
 
 It may be observed here, that, as a general rule, if the wife be 
 an adulteress, living apart from her husband,^ a Court of Equity 
 will not interfere, upon her application for a settlement out of her 
 own choses in action. In Some cases, however, under special cir- 
 cumstances, a settlement in her favor has been made, notwith- 
 standing the adultery;*' and, of course, if she is not an adulteress, 
 her living apart from her husband is no bar to her equity.'' In 
 cases of tliis description, the fact of the husband living apart fi'om 
 his wife, and not supporting her, is a reason against the fund, or 
 the income, being ])aid to liim ;^ but, nevertheless, in some cases, 
 this lias been (lone.''* 
 
 Wlic re, however, female wards of Court are married without its 
 
 ch. III. § r. 
 
 Death of hus- 
 band or wife 
 before actual 
 approval of 
 settlement, 
 will not affect 
 right by sur- 
 vivorship, if 
 no children. 
 
 Eifect of 
 wife's adul- 
 tery. 
 
 1 Whitten v. Sawyer, 1 IJeav. o'j3; 
 Biirker v. Lea. C Mad.'S.'JO. 
 
 2 Anon., 2 Ve.". S. 071: and Fenncr c. 
 Taylor. 2 It. & M. 1'jO, reversing' S. ('. 1 
 Sim. lO'J; Lovett v. Lovett, .lohn. 118. 
 
 8 4 Ves. 19. 
 
 * 5 De G. & S. 319; and see Heath v. 
 Lewis, 10 .lur. N. S. 109.3; 13 W. K. 129, 
 V. (y. .S., where the wile, l)ein;; sul)se- 
 quently divorced, wa.s allowed to repudi- 
 ate thi! f'ettlenient. 
 
 6 1 Uriplit, H. & W. 252; Carr v. F.a«ta- 
 brooke, 4 Ves. 140; Bali t'. Montgomery, 
 
 2 Ves. J. 191, 199; Watkvns v. Watkyns, 
 2 Atk. 97; and see jud^rment of L. J. 
 Turner in Harrow v. IJarrow, 6 De G., M. 
 & (J. 796. 
 
 •< Greedy v. Lavender, 13 Beav. 62; Re 
 Lewin's Trust, 20 Beav. 378. 
 
 7 Kedes r. Eede.i, 11 Sim 669; and see 
 Keniick r. Kernick, 4 N. H. 633, V. C. W. 
 
 ** Carr r. I'iM^talirooke, 4 Ves. 140. 
 
 « Hall r. MontpouK^ry, 2 Ves. .1. 191; 
 Duncan v. Campbell, 12 Sim. 610, 035, 
 038.
 
 108 
 
 SUITS liY PKHSOXS WUO AlJE UNDER DlSAlilLITY 
 
 Cn. 1II.5 
 
 WIUTO. 
 
 bcinji ward of 
 Court, slio 
 1ms inurrii'ii 
 clauilcstiiR'- 
 Iv. 
 
 Form of ?et- 
 tleuieiU. 
 
 Suits by wife; 
 
 suit by 
 husband and 
 ■wife as co- 
 plaintiffs, is 
 the suit of the 
 husband. 
 
 (.'(^iisnit, ;ilt1ion<i-li tlioy nftorwards live in lulultcry, tlie Court will 
 t'utorcc a sottU'inont : ^ because, tlic marriage being a conteni])t, 
 the Court thereby obtained jurisdietiou to commit the husband, in 
 consequence of his misconcbict, until ho should make a ])roper set- 
 tlement, and will not ])art with that power until that act be done, 
 whatever may be the irregularity of the Avife's conduct : Avhich 
 may be attributed, in some degree, to her husband's conduct in 
 ]>rocuring siu-h a clandestine marriage. 
 
 With reference to the form of settlement, it is to be observed, 
 that the practice is to settle the property in trust for the wife, for 
 lier separate use, for life, Avithout power of anticipation, and after 
 her death, for her children ; and in default of children, for her ab- 
 solutely, if she survives her husband ; but if she dies in liis lifetime, 
 then in trust for her husband, or his assignees.''^ 
 
 Having now treated of the subject of a married woman's equity 
 to a settlement, into wbich we have been led in considering the 
 ground on which the Court of Chancery requires a wife to be joined 
 as co-plaintiff" with her husband in suits relating to her own prop- 
 erty : Ave may return to the subject of suits by femes covert gen- 
 erally,^ It is now settled, that all cases in A\diich the husband and 
 Avife sue as co-plaintiff's together, or in which the husband sues as 
 next friend of his Avife, are regarded as suits of the husband alone.* 
 And upon this princi])le, Avhere a married Avoman, having a separate 
 interest, joins as a co-i)laintiff" Avith her husband, instead of suing 
 by her next friend, the suit Avill not prejudice a future claim by the 
 wnfe in respect of her separate interest ; ^ and it has been decided, 
 that a suit by a husband and Avife against the trustees of the Avife's 
 separate property, cannot be pleaded in bar to a subsequent suit 
 
 1 P.nll V. Coufts, 1 V. & B. 292, 302, 304; 
 Re AValker, L. & G. t. Su^. 299; and see, 
 generally, as to the mode in wliich the 
 Court deals with the property of a female 
 ward marrvint; without consent. Field v. 
 Moore, 7 De G., M. & G. 691 ; 2 Jur. N. S. 
 145. 
 
 2 Carter v. Tagrfrart, 1 De G , M. & G. 
 286; Bagshaw v. AVinter, 5 De G. & S. 
 466; Gent v. Harris, 10 Hare. 383; Seton, 
 666; Ward v. Yates, 1 Dr. & S. 80; but 
 see Spiratt r. Willows. L. K. 1 Ch. Ap. 
 420; 12 .lur. N. S. 538, S. C, where it was 
 held that, except under s])ecial circnm- 
 etances, the ultimate remainder in default 
 of issue should be to the husband; nnd 
 Bee form of order, wliere fund was settled 
 bj' the order. Watson v. Marshall, 17 
 Beav. 365; Duncombe v. Greenacre, Xo. 
 2. 29 Beav. 578; Jit Tubbs, 8 W. U. 270, 
 V. C. K.; .Seton, 605. 
 
 8 A wife may, in a Court of Equity, sue 
 her husbanfl, and be sued by him. 2 
 Story lui-.Jur. § 1308, § 1414; Van Diizen 
 V. Van Duzen, 6 I'aige, 360; Story Eci- I'l. 
 
 § 61, and note, and cases cited to this point; 
 Long V. White, 5 .1. J. Marsh. 230; Dowell 
 V. Covenhovon, 5 Paige, 581. A husband, 
 who has received the rents and profits of 
 real estate, held in trust for tlie separate 
 use of the wife, who has separated from 
 him, is rightly joined as a defendant in 
 a bill by her against the trustees to 
 enforce the trust. Aj-er v. Ayer, 16 Pick. 
 327. 
 
 4 Wake «. Parker, 2 Keen, 59, 70 ; Davis 
 V. Prout, 7 Beav. 288, 290; .Johnson v. 
 \a\], 1 McCarter (N. .1.1, 423. A plea of 
 insolvcncj' of the husband, was disallowed 
 to a bill by him and his wife for payment 
 of an annuity beijueathed fur the benefit 
 of the latter, which had fallen into posses- 
 sion after the insolvency, the assignees 
 declining to interfere. Glover v. Weedon, 
 3 .lur. N. S. 903, V. C. S. 
 
 5 Hughes V. Kvans, 1 S. & S- 185; 
 Turner v Turner, 2 De G., M. & G. 28, 
 37: .Johnson «. Vail, 1 McCarter (N. .J.), 
 423, 426, and cases there cited to this 
 point.
 
 MARRIED WOMEN. 
 
 109 
 
 by lier by her next fi-iend against the trustees and her husband, 
 although the relief prayed in both suits is the same.^ 
 
 In general, therefore, where the suit relates to the separate prop- 
 erty of the Tvife,^ it is necessary that the bill should be filed in her 
 name, by her next fiiend,^ other-«ase, the defendant may demm*,* 
 upon the ground that the wife might at any Hiture time institute 
 a new suit tor the same matter, and that, upon such new suit being 
 instituted, a decree in a cause over which her husband had the 
 exclusive control and authority, would not operate as a valid bar 
 against her subsequent claim." Where, however, the suit is for a 
 chose in action of the wife, not settled to her separate use, the 
 defendant cannot object to the husband's suing jointly with her as 
 co-plaintiff; nor will her right to a settlement be prejudiced by the 
 fact of her husband being so joined with her in the suit. 
 
 Where the wife sues by her next fi-iend, the husband must still be 
 a party, and it is usual to make him a defendant ; ^ but a husband 
 having no adverse interest to his wife, may be made a co-j^laintiti? 
 
 As a wife may sue her husband in respect of her sej^arate 
 property,* so may a husband in a similar case sue his wLfe.^ Such 
 
 Ch. ni. § 7. 
 
 If suit relates 
 to separate 
 property of 
 wife, she 
 should sue by 
 her nest 
 friend, 
 
 and the hus- 
 band be made 
 a defendant. 
 
 In what cases 
 husband may 
 sue wife, 
 
 1 Reeve v. Dally, 2 S. & S. 464. On 
 this principle, a plea of release by the 
 husband, to a bill by the husband and 
 wife for property limited to her separate 
 use, was held good, btooke v. Vincent, 1 
 Coil. 527. 
 
 ■■2 Where the bill is filed to rectify a 
 marriage settlement, the wife ought to be 
 a party independently of her husband. 
 M Gilldowney v. Pem'berton, 10 L. T. N. 
 b. 292, V. O. W. 
 
 8 See Hunt v. Booth, 1 Freem. Ch. 215; 
 Bri'iges v. McKeniia, 14 Md. 25b; Knight 
 V. Kniglit, 2 liiiyw. 101; Grant v. Van 
 Schoonlioven, 'J Paige, 255; Sherman v. 
 Burnhani, 6 Barb. (S. C.) 403; Heck 
 V. VoHmer, 2'j ,Md. 507, 511. In Bern v. 
 Heath, How. U. S. 22b, Jlr. Justice 
 Mcl^ean said, " Where the wife coniphiins 
 of the hu^b^nd, and asks relief iigainst 
 him, she must u.'-e the name of some other 
 person in prosecuting the suit; but where 
 the act.>i of the husbatjd are not com- 
 plained of, he would seem to be the most 
 suitable person t<j unite with her in the 
 suit. Ttiis )H a matter of practice wilhm 
 the discretion of the Court'-' Sec .Jolinson 
 V. Vail, 1 McCarter (N. .J.) 42.3, 420, 427. 
 
 ■♦ bee Johnson v. Vail, 1 McCarter (N. 
 J.), 423. 
 
 6 VViike V. Parker, 2 Keen, 59, 70; Story 
 F.q PI. § 03 and note; see also Warren v. 
 Buck, 4 Beuv. 05, as to the lime when the 
 objection can be taken by the defendant; 
 and see Hope v. Kox, I'j. & H. 450; 7 
 Jur. N. S. IbO, where the unit related to 
 the execution of a power vested in a mar- 
 ried woinaii; and see Mendcs r. Gueilal- 
 la(.\o. 2), 10 \V. K. 4f>5, v. (j. W. If the 
 husbatid and wife join in a suit as plain- 
 
 tiffs, or in an answer as co-defendants, 
 it will be considered as the suit, or the 
 defence of the husband alone, and it will 
 not prejudice a future claim by the wife in 
 respect of her separate interests, nor will 
 tlie wife be bound by an}' of the allega- 
 tions therein in any luture litigation. 
 Johnson v. Vail, 1 McCarter (X. J.), 423; 
 Bird V. Davis, 1 McCarter (N. J.), 407, 
 47y. 
 
 •J Wake V. Parker, 2 Keen, 59; England 
 V. Down-i, 1 Beav. 00; i avis v. Pruut, 7 
 Beav. 2c 8, 200; and see Hope v. l-'ox, ubi 
 sup.; Richards v. Millett, 11 VV. K. 1035, 
 iM. K.; 9 Jur. N. S. 1006. The practice, 
 when the husband improperly joins with 
 the wile as plaintiff, is not to dismiss the 
 bill, but to give permissiun to the wife to 
 amend by adding a next friend, and mak- 
 ing the husband a defendant; and when 
 no objection is interposed, to decree the 
 fund to be paid to a trustee for the use 
 of the wile. Johnson v. Vad, 1 McCarter 
 (N. J.),423. 
 
 " Bcardnioie v. Gregory, 2 II. & M. 
 491; 11 Jur. N. S. 363; and see Meddow- 
 crolt V. Campbell, 13 Beav. 184; I'latel 
 V. Craddock, U. P. Coop. 469, 481; Smith 
 V. Etches, 1 li. & M. 558; 9 Jur. 2^. S. 
 1228; 10 id. 124. 
 
 " See Woodward c. W'oodward, 9 Jur. 
 N. S. 882, L. C. in a suit by a wife tor 
 her se[iarate estate, the husband is u 
 necessary defendant. Johnson v. Vail, 1 
 McCarter (N. J.), 423. 
 
 '■' Warner v. Warner, 1 Dick. 90; Ainslie 
 t». Medlicott, 13 Ves. 206; and nniking her 
 a defendant, is an admission that the Huit 
 relates to her separate estate. Ivirl i". I'er- 
 ris, 19 Bchv. 67; 1 Jur. N. S. 5; 2 Story
 
 no 
 
 SUITS lU' PERSOXS WHO ARE UNDER DISABILITY. 
 
 Vn. Ill.§:. 
 
 >— — Y y 
 
 nnd ■will' sue 
 husband. 
 
 Suit insti- 
 tuted ou her 
 behalf, 
 without her 
 consent, will 
 be dismissed, 
 on her 
 application. 
 
 "Written 
 authority of 
 next friend 
 necessar\'. 
 
 suit, liowcvrf, c:in only bo in respect of his wile's separate estate: 
 lor a husbaml eaimot have a discovery of his oAvn estate against 
 his wile.^ lu' those cases where it is necessary that a suit respect- 
 injj; the [troperty of a married woman shouhl be instituted against 
 her husband, or that the husband should be one of tlie defenchmts : 
 as the wife, being under the. disabiUty of coverture, cannot sue 
 ak^nc, and she cannot sue under the protection of her husband, she 
 must seek otlier ])rotection, and tlie bill must be exhibited in her 
 name, by her next friend,'- who is named as such in the bill, as in 
 the case of an infant." A bill, however, cannot, as in the case of 
 an infant, be filed by a next friend on behalf of a married woman, 
 "without her consent ; * and if a suit should be so instituted, upon 
 si)ecial motion, su])ported by her affidavit of the matter, it will be 
 dismissed.^ 
 
 As in the case of an infant, a written authority from the next 
 friend to use his name must be filed with the bill.® So also, in all 
 aiiplieations to the Court, by petition or otherwise, by a married 
 M'oman with respect to her separate estate, she must ap})ly by her 
 next friend.'^ 
 
 Eq. Jur. § 1368; Story Eq. Tl. § 62. In a 
 suit to set aside a will, securing to the 
 testator's daughter, who is a married 
 woman, and to her issue, a share of the 
 testator's property, for her separate use 
 during coverture, the husband and wife 
 should not join as parties plaintiff, their 
 interests being in conflict ; but the wife 
 should be made a defendant. Alston v. 
 Joues, 3 Barb. Ch. 397. Where a suit 
 is instituted by a wife for the protec- 
 tion of her separate property against 
 creditors of the husband, the husband can- 
 not legallj' be joined as plaintiff, his in- 
 terest claimed by the creditors being 
 adverse to tiiat of his wife. Johnson v. 
 Y&n, 1 McCarter (N. J.), 423. A married 
 man may sue his wife in her character of 
 executrix, for a debt due to him by the 
 testator. The institution of the suit by the 
 husband will be considered as an authority 
 to her to be sued. Alexander v. Alex- 
 ander, 12 La. An. 588. 
 
 1 Brooks (,'. Brooks, Prec. Ch. 24. 
 
 2 Grittith V. Hood, 2 Ves. S. 452; Story 
 Eq. I'l. §§ 61, 63; Uowell v. Covenhoven, 
 5 Paige, 581; Wood c. Wood, 8 Wend. 
 357; (Jarlick v. Strong, 3 Paige, 440. 
 Leave to file bill by a married woman 
 witliout next frienii refused, although the 
 validit}- of the marriage was contested. ■ 
 Caldicott r. Baker, 13 vV. K. 449, V. C. 
 K. ; and see S' aley v Gaston, ifj. 577, V. 
 C. W. A defendant cannot act as next 
 friend, Payne v. Little, 13 Beav. 114; but 
 a married woman defendant may appeal 
 bv a co-defendant as her next friend. 
 Elliot V. Ince, 7 De G., M. & G. 475; 3 
 Jur. N. S. 597. She cannot, however, 
 present a petition of appeal without a 
 
 next friend, although another person joins 
 in the petition, and the suit relates to her 
 separate estate. Picard v. fline, L. R. 
 5 Ch. Ap. 274. 
 
 ■i Ld. lied. 28. Where the husband is 
 under any of the disabilities enumerated, 
 ante, p. 87, the wife is considered as a 
 feme sole, and may sue without the inter- 
 vention of a next friend ; and where he is 
 out of the jurisdiction, see Po'itgate v. 
 Barnes, 9 Jur. N. S. 456; 11 VV. K. 356, 
 V. C. S. Any objection for want of a 
 next friend should be made as soon as 
 possible. Sealey v. Gaston, 13 W. R. 577, 
 
 V. c. w. 
 
 4 Ld. Red. 28. For form of consent, 
 see Vol. III. If she is an infant, her con- 
 sent is unnecessary. Wortham «'. Pember- 
 ton, 1 De G. & S. 644; 9 Jur. 291. 
 
 5 Andrews v. Craduck, Prec. Ch. 376; 
 Gilb. 36; Cooke v. Fryer, 4 Beav. 13; 
 Story Kip I'l. § 61; Randolph v. Dicker- 
 son, 5 Paige, 751. The objection cannot 
 be taken by a defendant; it must be by a 
 next friend on beiuilf of the married 
 woman. Davies v. Whitehead, 1 W. N. 
 162, M. R. For form of notice of motion, 
 see Vol. III. 
 
 6 15 & 16 Vic. c. 86, § 11. For form of 
 authority, see Vol. III. In an injunction 
 case, an information was allowed to be 
 filed, on an undertaking to file the au- 
 thority the following day. Attorney-Gen- 
 eral V. Murray, 13 W. R. 65, V. C. K. 
 And see, as to liability of next friend, 
 who--e name had been used without his 
 knowledge previously to this Act, Bligh 
 V. Tredgett, 6 De G. & S. 74. 
 
 7 ]iii Waugh, 15 Beav. 508; but she 
 may apply without a next friend, where
 
 MARRIED WOMEN. 
 
 Ill 
 
 The next fi-iend of a married woman need not be a relation,^ 
 but he must be a person of substance, because he is liable to 
 costs ; - and in this respect there is a material difference between 
 the next friend of a feme covert and of an infant : for any person 
 may file a bill in the name of an infant, but the suit of a feme 
 covert is substantially her own suit, and her next friend is selected 
 by her.^ In the fonner case, therefore, as we have seen,* the 
 Court does not require that the next friend should be a person of 
 substance, because if the friends of an inlant are poor, the infant 
 might, by such a rule, be deprived of the opportunity of asserting 
 his right ; but in the case of 'Afeme covert, as the object for which 
 a next friend is required is, that he may be answerable for the 
 costs,^ the Court expects that the person she selects to fill that 
 office should be one who can j^ay the costs, if it should tiirn out 
 that the proceeding is ill-founded; and, therefore, if the next 
 fi'iend is in insolvent circumstances, it will order the suit to be 
 stayed until he gives security for costs.^ 
 
 It is obvious that cases might arise where the rule, that the 
 next fi-iend of 2ifeme covert must be a person of substance, would 
 be, practically, a denial of justice. In such cases the Court, as we 
 have seen,' allows her to sue, or continue a suit, without a next 
 fiiend ; and, if need be, in forma jMujyeris y ^ or to present a 
 petition, in a case where the Court has j urisdiction without suit.® 
 
 If the next friend of a married woman dies, or becomes incapa- 
 ble of acting, or if for any reason the plaintifi" desires to remove 
 her next friend, she may, at any time before the defendants have 
 entered an a})pearance to the bill, introduce into the record the 
 
 Ch. III. § 7. 
 
 or suit will be 
 stayed till he 
 gives security 
 for costs. 
 
 Feme covert 
 allowed, 
 where justice 
 re<niires, to 
 sue without a 
 next friend, 
 and in forma 
 pauperis. 
 
 Change of 
 next friend, 
 by death or 
 otherwise. 
 
 she has obtained a protection order under 
 2n& 21 Vic. c. 85, § 21. Bathe v. Bank of 
 EiigUind, 4 K. & .J. uC4; 4 .Jur. N. S. 505; 
 JCe Kainsdon, 5 Jur. N. .S. 55, \'. C. K. ; 
 4 Drew. 446. If a motion on behalf of a 
 married woman be made witiiout a next 
 friend, the S'llicitor iiistructiug may be 
 ordered to pav the costi. I'earse v. Cole, 
 IG.Iur. 214, \^. C. K. 
 
 1 The husband may be joined with his 
 wife, as next friend, in a suit in wiiieh lie 
 has no interest, iu Louisiana, lieiii v. 
 Heath, 6 How. U. S. 228. See Joliuson 
 V. Vail, 1 McCarter (N. J.), 423. 
 
 2 Anon. 1 Atk. 570; Bennington v. 
 Aiviii, 1 S. & S. 204; Drinan ?<. .Mannix, 
 3 Dr. War. 1G4; .Jones v. Faweett, 2 
 Phil. 278; Stevens r. Williams, 1 Sim. N. 
 S. 545; Wilton v. Hill, 2 \h: G., M. & C. 
 807-80'.»; Hind v. Whitmore, 2 K. & .1. 
 458, where all the cases are reviewed; Jic 
 Will.s, 9 .lur. N. S. 1225; 12 W. K. 97, V. 
 C S.; Klliot V Ince, 7 De C., M. & C,. 
 475; H .lur. N. S. 597; .see al^o Dowden 
 V. Hook, 8 Beav. 399, 402, which must 
 now be looked upon as overruled. 
 
 8 Gamble v. Atlee, 2 De (;. & S. 745; 
 but see, where she is an inlant, W'ortham 
 
 V. Peraberton, 1 De G. & S. 644 ; 9 Jur. 
 291. 
 
 4 Ante, p. 74. 
 
 6 See lie Wills, 9 Jur. N. S. 1225 ; 12 
 W. H. 97, V. C. S. 
 
 bmith V. Etches, 1 II. & M. 711; 9 
 Jur. N. S. 1228; 10 id. 124. A next 
 friend has been ordered to give security 
 for costs, though the husband, who had, 
 however, no substantial interest, was a 
 co-plaintilf. S. C. ; but see Caidicott v. 
 Baker, 13 W. R. 449, V. C. K. 
 
 7 Ante, p. 37. 
 
 8 Wellesley v. Wellesley, 10 Sim. 1; 1 
 De G., U. Si G. 501 ; Wellesley /'. Morn- 
 ington, 18 Jur. 652, V. C. K.; Jie Foster, 
 18 Heav. 525; Jie Lancaster, 18 Jur. 229, 
 L. C. and L. JJ.; D'Oechsner i\ Scott, 
 24 Beav. 239; Crouch v. Waller, 4 De G. 
 & J. 43; 5 Jur. N. S. 326; He Barnes, 10 
 W. It. 404, V. C. S.; Smith v. Ktches M 
 sup. An order for this purjjose is neces- 
 sary, which may be obtaineit on special 
 ajiplication by ex jxirle motion, see Coid- 
 Htingi'. Coul.«ting, s Beav. 103. For form 
 of motion pai)er, see Vol. Ill 
 
 " Jn re Hakewell, 
 
 116; 17 Jur. 334. 
 
 3 De G., M. & G.
 
 112 
 
 SUITS BY PERSONS WHO AKE UNDER ])ISABILITY. 
 
 Cii. III. 5 7. 
 
 Where fvme 
 covert mollies 
 to chanye 
 next friend, 
 Court has a 
 discretion. 
 
 Retiring next 
 friend ordered 
 to give 
 security for 
 past costs. 
 Consent to 
 act of new 
 next friend. 
 
 Wliere, on 
 death or 
 bankruptcy 
 of next friend, 
 plaintiff 
 neglects to 
 appoint a new 
 one. 
 
 Order 
 appointing 
 new next ■ 
 friend, must 
 be ser%ed and 
 left for entry. 
 
 Sanction to 
 departure 
 from ordinary 
 course of 
 procedure. 
 
 iiaino o[^ :i iicAV next iVioiul, under an order as ol' course to amend. 
 Alter apin'.irance, the same may be done, where a new next friend 
 is to be named in the phiee of a deceased next friend, if the appli- 
 cation for tlie order is made by the soUcitor wlio acted in the suit 
 for the deceased next friend ; but in otlier cases, the order to 
 appoint a new next friend is special, and must be obtained either 
 in Court on motion, of which notice must be given, or on a sum- 
 mons in Chambers, whicli must be served.^ 
 
 AVhere, however, a marrietl woman ai)plies for leave to change 
 her next friend, it is in the discretion of the Court to grant or 
 refuse the application ; and it will' be refused, where there is reason 
 to believe that the defendant's security for costs will be thereby, 
 prejudiced ; ^ and if the order be made, the new next friend is 
 usually required to give security to ansAver the past costs, and to 
 abide by the order of the Court as to future costs ; ^ and in J-'ayne 
 \. Xittle,'^ the retiring next friend was required to give security for 
 the costs incurred up to the time of the change. 
 
 Ul)on an application to appoint a new next friend, the Court or 
 Judge usually requires to be satisfied of his wilUngness to act; 
 this may be evidenced by the production of his written consent.* 
 
 If the plaintiff neglects or refuses to obtain the order in the 
 case of the next fi-iend's death, the defendant may apply to the 
 Court, by motion upon notice, for an order tlirecting her to name 
 a new next friend within a hmited time, or in default that the bill 
 may be dismissed with costs ; ® and where the next friend becomes 
 bankrupt, an order will, in like manner, be made, staying the \n-o- 
 ceedings until a solvent next friend is a]>pointed, or the plaintiff 
 has obtained leave to sue i?i J^ormd pcaqyerisJ 
 
 Wherever a new next friend is appointed, the order appointing 
 him must be served on the solicitors of the defendants, and be left 
 for entry in the cause books kept by the Clerks of Records and 
 "Writs ; and thereupon, in all future proceedings in the cause, the 
 name of the new next friend so ap})ointed will be introduced, in the 
 place and stead of the former next friend.** 
 
 The next friend of a mairied woman, before he consents to any 
 de]»artuie from the ordinary mode of taking evidence, or of any 
 other ]>rocedure in a suit, should obtain the sanction of the Court, 
 or of a Judge in Chambers.^ The a]jplication at Chambers is made 
 by summons.^" 
 
 1 For forms of notice of motion and 
 summons, see Vol. III.; and for form of 
 order, see Setoii, 1252. 
 
 ■■2 .Jones V. I'awcelt, 2 Phil, 278; and see 
 Greenaway v. Itotheram, Sim. b8. 
 
 y Lawley v. Halpen, liuulj. 310; Percy 
 f. Percy, M. H. in Cliainlj. 9 Dec, lbti3. 
 For form of order, see 8eton, 1252. 
 
 * 14 Beav. 647; 16 Beav. 503. 
 
 5 For form of consent, see Vol. III. 
 
 6 Bailee v. Barlee, 1 S. & S. 100. For 
 form of notice, see Vol. III. 
 
 7 Wilton V. llill, 2 De G., M. & G. 807; 
 D'Oechsner v. Scott, 24 Beav. 239; see 
 also I'ennuigton v. Alvin, 1 S. & S. 2G4; 
 Driiian v. Maniiix, 3 Or. & War. 154. 
 For i'/nn of notice of motion, see Vol. III. 
 
 ** Jiraitliwiiite's Br. 55b. 
 'J Ord. 5 Feb., 1801, r. 24. 
 
 For form of summons, see Vol. III.
 
 MARRIED WOMEN. 
 
 113 
 
 If the next friend of a married woman goes to reside out of the 
 jurisdiction, the practice with resjject to giving security for costs 
 is the same as if the nest friend had been himself the' actual 
 plaintiff.^ 
 
 Upon filing a bill in Chancery, either by her next friend or in 
 forma 2)ai/pe)is, a married woman, in respect of the suit, is held to 
 have taken upon herself the liabilities of a feme sole, and therefore 
 may be attached ; ^ and her separate estate becomes hable to pay 
 the costs incurred.^ 
 
 If a bill has been filed by a. feme sole, and she intermarry pend- 
 ing the suit, the proceedings are thereby abated, and cannot prop- 
 erly be continued without an order of re^•ivor.* If, however, a 
 female plaintiff mames, and afterwards proceeds in the suit as a 
 feine sole, the mere want of an order of revivor is not an error for 
 which a decree can be reversed, upon a bill of review brought by a 
 defendant : because, after a decree made in point of right, a matter 
 which may be pleaded in abatement is not an error upon which to 
 ground a bill of re\dew.° 
 
 It has been determined, that if a female jjlaintiff marries pendino- 
 a suit, and afterwards before revivor her husband dies, an order of 
 revivor becomes unnecessary : her incapacity to prosecute the suit 
 being removed ; yet the subsequent proceedings ought, however, to 
 be in the name and with the description which she has acquired by 
 the marriage.® 
 
 Where a bill has been file.l by a man and his wife touching the 
 personal property of the wife, and the husband dies pending the 
 suit, no abatement of the suit takes place, but the wife becomes 
 entitled to the Ijenefit of the suit by survivorshijj,' unless any act 
 has been done which may have the effect of depriving her of that 
 right ; and she may continue the suit without an order of revivor.^ 
 
 Ch. III. § 7. 
 
 Next fi-iend, 
 going to 
 reside out of 
 jurisdiction, 
 must give 
 securitj' for 
 costs. 
 
 By filing bill, 
 Jeme covert 
 takes upon 
 herself 
 liabilities of 
 feme sole, in 
 respect of 
 suit. 
 
 Suit abates 
 by marriage 
 of female 
 plaintiff. 
 
 Effect of hus- 
 band's death 
 before . 
 revivor. 
 
 Effect of hus- 
 band's death 
 on joint suit. 
 
 1 Alcock V. Alcock, 5 De G. & S. 671, 
 ante, p. 28. 
 
 ■^ Ottway V. Wing, 12 Sim. 90. 
 
 8 Barlee v. Barlee, 1 S. & S. 100; Mur- 
 ray V. Barlee, 4 .Sim. b2, t»l; .3 .M. & K. 
 2oy, 21'J; see, however, lie I'ugli, 17 Beav. 
 336. As to the liability of tlie wife's 
 separate edtate for her debts and engage- 
 ments, see .Johnson c. Gallagher, 7 .lur. N. 
 S. 27:{, <J \V. K. 506, L. .J.J. ; 3 De G., F. & 
 J. 404, where tlie cases are reviewed; 
 G'-cenough v. .Shorrock, 4 N. li. 40, L. J.J.; 
 3 N. U. r/JU, M. i:. 
 
 * See Trezuvant r. Hroughton, o W. li. 
 517; Seton, IPiO, 1170, .M. li. Where a 
 woman lil.'d her bill a- a spin-iter, and it 
 afterwards ajipeared shf. Iiad a husband 
 living, procfedings were stayed, on motion 
 by the detendant, tdl the a'ppoinlnii-nt of 
 a next friiMid. (Jrant i'. Mdls, 2!» L. T. 11 ; 
 anil see I'vke v. Ilidcombe, 'J .Jur. .'iOH, V. 
 C. K. H.; Davey v. Bennett, 3 W'.ll. ii'/.i, 
 V. C. W. 
 
 6 Viscountess Cranborne v. Dalmahoj-, 
 Nels. 85; 1 Ch. R. 231. So at Law, it a 
 woman sues or is sued as sole, and judg- 
 ment is against her as sucii, tliougii she 
 was cocert, she shall be estopped, and the 
 sheriff shall. take advantage of tlie estop- 
 pel. 1 S:dk. 310; 1 Roll. Abr. 86y, pi. 60. 
 
 *> Ld. Red. 00; and Godkin v. Earl Fer- 
 rers, tliere referred to. 
 
 ' And it extends to interest accrued 
 during the life of the husband, and not 
 received. Wdkinson ,-. Cliarlesworth, 10 
 Beav. 324; 11 .lur. 044. 
 
 » M'Oowl i: Charles, John. Ch. 132; 
 Vaughan v. Wilson, 4 Hen. & M. 463. 
 The e.\ecutor of a deceased husband can- 
 not maintain a suit upon a chugc in action 
 which accrued during coverture to the 
 wife of the deceased, who survived him, 
 and which was not reiluced into possession 
 by him. Uond r. Conway, 11 Md. 512; 
 ."inowhill V. Suowhill, 1 Green Ch. 30.
 
 114 
 
 SUITS RY PEl^SOXS WHO ARE UNDER DTS ABILITY. 
 
 Cit.III. §■ 
 
 EftWt of 
 wit'o's death 
 ou joint suit. 
 
 Etfeet of 
 death of both. 
 
 When suit 
 may he 
 continued by 
 husband, 
 without 
 admiuister- 
 inff to wife. 
 
 If, liowovor, she doos not think jivojx'r to ])rooce(l witli tlio cause, 
 she Avill not he Uahlc to the costs ah-eady incurred : because a 
 woman cannot be n\ade resjionsihle for any act done by her hus- 
 band during the coverture; but if she take any step in tlio cause, 
 subsequent to her husband's dcatli, she will make herself liable to 
 the costs from the beginning.^ 
 
 A different rule, with respect to the right to continue a suit 
 instituted by a husband and m ife, prevails when the wife dies in 
 the lifetime of her husband, from that wliich is acted upon when 
 the husband dies in the lifetime of his wife ; for in the former case, 
 although the husband, ui)on the death of his wife, becomes entitled 
 to all her choses in action, he does not acquire such title by sur- 
 vivorship, but in a new character, and an absolute abatement of 
 the suit takes place ; so that, to entitle himself to continue it, the 
 husband must first clothe himself with the character of her personal 
 re])resentative, by taking out administration to her effects,^ and 
 then obtain an order of revivor."* And here it is to be observed, 
 that if, after the death of the wife, the husband were to die before 
 the termination of the sixit, the party to continue the suit is the 
 person to whom administration has been granted. According to 
 the jiresent practice of the Court of Probate, administration is 
 granted to the representatives of the husband, unless next of kin 
 of the wife are the persons beneficially entitled : the former jjractice 
 having been otherwise.* 
 
 But, although it is in general necessary that a husband, after the 
 death of his wife, ])ending a suit instituted by them for the recovery 
 of her personal jiroperty, should, in order to entitle him to proceed 
 with the cause, take out administration to his wife, and then obtain 
 an order of revivor, yet if any act has been done the eflfect of w^hich. 
 Avould have been to deprive the wile, in case she had outlived her 
 husband, of her right by survivorship, and to vest the jjroperty in 
 
 1 Ld. Red. 59; see also 3 Atk. 726; 
 Bond V. Simmons, ib. 21; Mills v. Barlow, 
 11 W. R. 351, L. JJ. 
 
 2 See Pattee v. Ilarringlon, 11 Pick. 
 221; Needles v. Needles. 7 Ohio (N. S.), 
 432; McCasker v. Golden, 1 Bi-adf. (N. Y.) 
 64; Williams v. Carle, 2 Stockt. (N. J.) 
 543. A right of the husb.md to administer 
 on his wfe's choses in action, for his own 
 benefit, is held to be incompatible with the 
 legislation of Vermont. Iluinies v. Holmes, 
 28 Vt. 765. It has been held in Massa- 
 chusetts, that the administrator of the 
 estate of a m;irried woman raaj' maintain 
 an action upon a note given and made 
 payable to her during coverture, if during 
 iier life her hu-jband did not reduce it 
 to pos.^ession, or do an3' act indicating 
 an intention to take it to himself Allen 
 r. VVilkins, 3 Allen, 321. Bigelow C. J. 
 said: " His right to reduce it to possession 
 was at an end on the dissolution of the 
 
 marriage by her decense. It was then a 
 chose m action, and, being a promissory 
 note, payable to the order of the wife, no 
 one could sue upon it, unless he could 
 trace a title to it under the original payee." 
 pp. 322, 323. See 2 Kent (Uth ed.), 135, 
 136; Garforth v. Bradley, 2 Ves. S. 675; 
 liiihards v. Kichards, 2 B. & Ad. 447; 
 Gaters v. Madeley, 6 M. & W. 423; H^irt 
 V. Ste|)hens, 6 Q. B. 937; Scari)eliiiii v. 
 Atchesoi], 7 t^. B. 864; .I(;nes u. liichard- 
 son, 5 M(!t. 247, 240 ; Bryan v. Rooks, 25 
 Geo. 622 ; Vaughan v. Parr, 20 Ark. 600. 
 
 3 For form of order, where husband, 
 being defendant in wife's suit, revives as 
 Iier administrator, see Murray v. Newbon, 
 Seton, 1164. J he order can be obtained 
 on motion or petition of course. ^CQ post, 
 Chap. XXXlil., Revivor and Supplement. 
 
 4 \Vms. on Executors, 360. See Bryan 
 V. Rooks, 25 Geo. 622; but see Vaughan 
 V. Parr, 20 Ark. 600.
 
 MAEEIED WOMEN. 
 
 115 
 
 the husband absolutely, the husband may, it is apprehended, con- 
 tinue the suit in his individual character, without taking out 
 administration to his wife. In such case, however, it will be neces- 
 sary, if such act has taken place subsequently to the institution of 
 the suit, to bring the fact before the Court by means of an amend- 
 ment or a supplemental statement or bill, unless it appears upon 
 the proceedings which have already taken place in the cause. 
 
 This distinction renders it unportant to consider what the cir- 
 cumstances are which will have the effect of so altering the prop- 
 erty, as to vest the right to the wife's personal property absolutely 
 in the husband, and entitle hun to proceed in a suit Avithout assum- 
 ing the character of her personal representative. 
 
 Upon this subject it is to be observed, that a mere intention^ to 
 alter the proi)erty will not have the effect of giving the husband 
 the absolute right in it ; and therefore, the mere bringing an action 
 at Law, or filing a bill in Equity, will not alter the property, unless 
 there be a judgment or decree for pajTuent to the husband alone.^ 
 And it has been decided, that an appropriation by an executrix of 
 so much of the assets of her testator as was necessary to discharo-e 
 a legacy bequeathed to a married woman, was not such a change 
 of the property as would vest it in the husband. 
 
 But it seems, that if a person indebted to a married woman, or 
 holding money belonging to her, pay such money into Court, in a 
 cause to which the husband and wife are jjarties, such ])a}inent will 
 be considered as an alteration of the property ; for, as properly it 
 could only have been paid during coverture to the husband, the 
 circumstance of its having been paid into Court will not alter the 
 rights of the parties, and it -snll be considered as a payment made 
 to him.'' For the same reason, where the jewels of the wife had 
 been (k'liosited in Court by the husband under an order, they were 
 considered as belonging to the husband's executors, and not to the 
 representative of the wife who had survived: because, havino- been 
 in the jMJSsession of the husband, oven a tortious act could not 
 devest that i)ro|tcrty, and turn it into a chose in action ; * much 
 less could a payment into Court under an order. And so, where a 
 married woman, Avho was the committee of the estate and person 
 of her lunatic husband, was entitled to stock which was standin<T 
 in the name r>f a trustee for her, and this stock was, by an order 
 
 Ch. in. § 7. 
 
 How wife's 
 right by 
 siinivorship 
 defeated : 
 
 not by action 
 or suit, witli- 
 out judgmeut 
 or decree for 
 pavment to 
 husband, 
 
 nor by ap- 
 propriation. 
 
 How defeated 
 by payment 
 into Court; 
 
 or deposit in 
 Court; 
 
 or transfer by 
 order in 
 lunacy. 
 
 1 See Forrest v. Warrington, 2 Desaus. 
 254, 261; Harbor v Slaile, '40 Vt. I'Jl. 
 
 '■^ See Strong r. Siriith, 1 Met. 470. To 
 cotiKtitute a rcductjiJii to jicLSsession, and a 
 chang(r of pr'ii)erty of the wile's clioscs in 
 actum, the husband mUHt do some positive 
 and iin<'(|uivocul act to reduce tiiein toliis 
 own pos-es«ion. Harber r. Shxh', 30 Vt. 
 l!tl; K;n^s V. Hughes, 3 De-aus. ir,.^; Mall 
 r. Young, 37 N. ll. 1.34: Amlover r Mer- 
 rimack Co., 37 N. H. 437; Snowhill v. 
 
 Snowhill, 1 Green Ch. 36,37; Giann v. 
 Younglove, 27 Uarb. (N V.) 48 i; Lock- 
 hart iv Cameron, 29 Ala. 3.5.1; Walden v. 
 Chambers, 7 Ohio (N. S.), 30; Wallace v. 
 Taliaferro, 2 (Jail, 447. The reduction 
 iu;ee.ssary is fluit into jiossession, not of 
 the tiling itself, but of the title to it. 
 Strong .J. in Tritt v. Caldwell, 31 I'liin. 
 St. 233. 
 
 « Packer v. VVyndham, Prec. Ch. 412. 
 
 * Ukl.
 
 116 
 
 SUITS BY PERSONS WHO AllE UNDER DISABILITY. 
 
 Ch. III.§ 
 
 Wlicre 
 money car- 
 ried to joint 
 account ; 
 
 or transferred 
 to tnistees. 
 
 EflFect of 
 promissory 
 note to wife. 
 
 made in the liiiKicy, (nmsforrod into the name of the Accountant- 
 Goneral, in the matter of the huiaey, and part of it Avas afterwards 
 sohl out and apphed in payment of costs in tlie hmaey, Lord Lynd- 
 hurst liehl, tliat tlie mo(k' in which tlie stock had been dealt with 
 amounted to a redm-tion into jiossession hy the linsband: because, 
 as ])ayment by the trustee to the huiatic, or to the connnittee, 
 Avould have been a reduction into possession, so payment into 
 Court, to the credit of the hmacy, Avas equally a reduction into 
 possession for tlie lunatic; and upon this ground his Lordship 
 refused to grant a petition, presented by the Avife after the death 
 of the lunatic, ])raying that the stock might be transferred to her, 
 as belonging to her by survi\"orship.^ If, hoAVCA'cr, money paid 
 into Court be carried, by order, to the joint account of the husband 
 and A\'ife, the case Avill be difterent, and the AV^ife Avill not be 
 deprived of -her right of survivorship, in the case of the husband 
 dying before he has procured an order for the payment of it out of 
 Court ; '^ and it seems, that a mere payment or transfer of money 
 or stock to trustees for the benefit of the Avife, Avill not give the 
 husband the absolute right to the money, to the exclusion of the 
 A\'ife.^ 
 
 It appears formerly to haA^e been held, that a promissory note 
 giA'en to a Avife during coverture became the ]»ro])erty of the hus- 
 band absolutely, as the Avife could not acquire property during 
 covertvire ; and upon this principle, Lord HardAvicke, in Lifjht- 
 bourtie v, Ilolyday* held, that upon the death of the husband, in 
 a suit respecting a note of this description, the suit abated ; and 
 in Hodges v. Beverley^ it Avas determined, that a note given to a 
 feme covert Avas, upon her husband's death, to be considered as his 
 assets.® But in Nash v. Nash^ Sir Thomas Plumer V. C. held. 
 
 1 Inre Jenkins, 5 Russ. 183, 187. The 
 right ot' a 'lusbaiid to reduce to his posses- 
 sion the chostsiii action of the wife, cannot 
 be exercised by a guardian appointed over 
 him as an insane person, but the property 
 continue-^ vested in tlie wile. Andover v. 
 Merrimack Co., .37 N. II. 4-37. 
 
 - Ibid. ; and see Baldwin v. Baldwin, 5 
 De G. & S. 319; Liiprimandaye u. Teissier, 
 12 Beav. 206; 13 Jur. 1040. 
 
 3 Priiigle I' Pringle, 22 Benv. 631; and 
 see £x parte Norton, 8 De G., M. & G. 
 2.58; 2 Jur. N. S. 479; see, however, 
 Hansen v. Miller, 14 Sim 22, 26; 8 Jur. 
 209, 3.52; Cuningliain v. Antrobus, 16 
 Sim. 436, 442, 13 Jur. 28; Buruham v. 
 Bennett, 2 Coll. 254; 9 Jur. 888. 
 
 * 2 Kq. Ca. Ab. 1, pi. .5; 2 Mad. 135, n. 
 
 6 Bunb. 188; see Yates v. Sherrii gton, 
 11 U. & \V. 42, ami 12 .M. & W. 855, as 
 to the effect of bankruptcy of the husband 
 upon a promissory note given to the wife 
 dum siila. 
 
 6 So it has been held in Massachusetts 
 
 both as to promissory notes and as to le- 
 gacies and distributive shares in intestate 
 estates, the separate property of the wife; 
 the necessity for a reduction to possession 
 seems to have been overlooked. Tlius in 
 Commonwealth ». Mauley, 12 I'ick. 173, it 
 was determined by the Court that a pro- 
 missory note given to a feme covert for 
 her separate use, for the consideration 
 of her distributive siiare in an intestate 
 estate, becomes immediately the pro- 
 pertj- of the iiusband. This was after- 
 wards conlirmed in Stevens v. Beals, 
 10 Cush. 291. See Shuttleworth v. 
 Noyes, 8 Mass. 229; Trvon v. Sutton, 
 13 Cal. 490; Holland v. Moody, 12 Ind. 
 170. And in Goddard v. Johnson, 14 
 Pick. 352, it was even decided, that a 
 husband might sue in his own right, after 
 the death of his wile, for a legacy accruing; 
 to the wife during the coverture, although 
 he had done nothing to reduce it to po.s- 
 
 7 2 Mad. 133, 139.
 
 MARRIED "WOMEN. 
 
 117 
 
 that a note given to a Trife was a chose in action of the "wife, and 
 siirvdved to her on the death of her husband,^ and that the cu-cum- 
 stanee of the husband having received the interest and part of the 
 capital in his lifetime, for which he gave a receipt, did not alter the 
 nature of the property, but that the remainder of the money still 
 remained a chose in action.^ 
 
 In the last case, a receipt of part of the money by the husband 
 was not, as we have seen, held sufficient to alter the nature of the 
 property in the remainder, so as to deprive the wife of her right to 
 it by survivorship. In general, however, if the husband, either 
 alone or jointly with his wife, authorize another person to receive 
 the property of the wife, whether it be money, legacy, or other 
 thing, and such person actually obtain it, such receipt will change 
 the wife's interest in the property, and be a reduction into posses- 
 sion by the husband.^ Thus, in Dostcell v. JEark,* where an 
 executor, with the wife's consent, had paid a legacy, to which the 
 wife was entitled on the death of her mother, to the husband, 
 upon his undertaking to pay the interest to the mother during her 
 life, and the ^dfe, having survived her and her husband, filed a bill 
 claiming the money against the husband's executors, the bill was 
 dismissed. 
 
 Ch. III. § 7. 
 
 His receipt, or 
 
 that of a 
 
 person 
 
 authorized 
 
 by him, a 
 
 sutHoieut 
 
 reduction. 
 
 Bession flurinp: her lifetime. The same 
 was maintiiined in H:ij)f;ood t'. Hougliton, 
 22 Pi k. 4f"0, and in Albee v. Carpeiiter, 
 12 Cush. 3!!2, .3)56. See Strong v. Smith, 
 1 Met. 476. But the Court seem to have 
 receded from the doctrine in Jones v. 
 Kichard-on, 5 .Met. 247, 249, and admitted 
 that it wa* "contrary to decided cases." 
 And in .\llen v. Wiliiins, 3 Allen, 321, 
 322, Bigel'iw C. •'. said : " In a ctrtain 
 sense, a chase in action wliich becomes the 
 property of the wife duriuj:; coverture, 
 may be 'aid to be the absolute property of 
 the husband. He bas the right to do any 
 act to reduce it into his own possession. 
 So lonij (IS lit fiu'l his irift are hath lirini/, 
 the etitirej?/;! ilispunewli is in him. And 
 it was decided in this case, that tlieadmiu- 
 istrat'ir of tlie estate of a married woman 
 may maintain an action on a note given 
 and made payable to h<r duriiiK coverture, 
 if during her life her liusband did not reduce 
 it to posse-Hion, or do any act indicating 
 tin intention to take it to himself See 
 Yate.s V. Sherrington, 11 M. & W . 42, arjd 
 12 M. & VV. K>:,, as to the eft-ct of bank- 
 ruptcy of the husband ufion a promissory 
 note t'iven to the wife iliim sola. 
 
 1 Allen w Wdkin-, 3 Allen, .321; .Tones 
 V. Kiclnipl-on, ;', M.t. 'i47, 249; 2 Kent 
 (11th ed 1, i:J.-.; I'.arber r. Slade, 30 Vt. 
 191; liarron r. Barron. 24 Vt. 370; Hall 
 r. Younp. 37 N. H. 134, 146, 146; Collin 
 r. MorrdI, 22 N. H 302; Snowbill i\ 
 Snowhill, 1 (Jreen ('h. 30; Dane r. AI'u-m, 
 1 <;rcenCh. 41.^; I'omde.vterf. Blackburn, 
 1 Ired. Ch. 2b6. 
 
 In Hall V. Young, -37 N. H. 146, it is 
 stated as the settled law of New Hamp- 
 shire, that the personal property of the 
 wife at the time of the marri;ige,or accru- 
 ing to her, in her own right, suli--equently, 
 whether it consists in spec' fie ciiattels, 
 money, or chases in action, and however 
 it may tall to her, whether by legacy, 
 gift inter vivos or cntisa mortis, as her dis- 
 tributive share in ttie estate of a person 
 deceased, or otherwise, if \i accrues inde- 
 pendenth- of her husband, anii not upon 
 any consideration moving from or con- 
 nected with him, it remains lier's until be 
 exercises his marital riglit by reducing it 
 to possession. 
 
 •^ Hunter v Hallett, 1 Edw, Ch. 388. 
 The receipt by a husbaiul of dividends 
 accruing from stock standing in his wife's 
 name, is evidence of n reduction to pos- 
 ses-ion of the dividends, Imt not ot' tlie 
 stock. P.urr r. Sherwood, 3 Hradf. (N. 
 Y.) 86. See Taggart /•. Boldin, 10 Md. 
 104 If the husband takes anew security, 
 in his own name, for a del)t due to his 
 wife, while sf)le, her right by survivorship 
 is tberebv destroyed. Searing f. Searing, 
 9 I'aige, 283. 
 
 « 2 Kent (11th ed.), 137; Schuyler v. 
 Hoyle, .O .loiin.Ch. I'.'O; Johnston f." .lohn- 
 stoii. 1 Cnint (I'enn.), 4i;8. 
 
 ■• 12 Ves. 473; see also Hurnliam r. 
 Beiinftt, 2 Coll. 254; 9 .lur. KHS; Hansen 
 V. Milh-r. 14 Sim 22, 26; K Jur. 2o;i. 3.'.2; 
 and (.'nningbam r. Antrobus, 16 Sim. 436, 
 442; 13 .Inr. 2>'; but see I'riugle i". I'ringle, 
 22 Beav. 031.
 
 118 
 
 SUITS BY PERSONS WHO AKE UNDER DISABILITY. 
 
 Cm. 111. §7. 
 
 Effect of a. 
 jiidirmi'iit at 
 
 where •wife is 
 not a party ; 
 
 'Plu' mi've jm^ot*, in liaukniptcy, of :i debt due to tlu' wife by 
 the luisl);ind, will not ;ilter tlii' property of (lie debt, and it still 
 remains a c/iotte hi action} It seems, however, that an award by 
 an arbitrator giving money to the liusband, to wliicli he was 
 entitled in right of his wife, will have the effect of altering the 
 property, and giving it to the husband absolutely.-^ 
 
 AVith respect to the effect of a judgment at Law in altering the 
 ]n'operty of a wife's chose in action, much depends, as Ave liavc 
 seen,^ upon whether tlie wife is or is not named in the proceeding. 
 If the wife be not a party (wliicli she need not be at Law, if tlie 
 right accrued to her during coverture),* a judgment in an action 
 commenced by the husband will vest the propei'ty in him : so that, 
 in the event of his death before execution, the wife would be de- 
 I where she is. ju-ived of her right by survivorship ; ^ this, however, wall not be 
 the case if the Avife be a party : in which case, if the husband die 
 after judgment and before execution sued out, the judgment will 
 survive to her.^ 
 
 Decrees in Equity, as we have seen,'' so far resemble judgments 
 at Law in this respect, that, until the money be ordered to be 
 paid, or declared to belong to the one or the other, the rights of the 
 parties will remain undisturbed ; ^ but an order for payment of a 
 sum of money to the husband, in right of his wife, changes the 
 property, and vests it in the husband.^ 
 
 Where, hoAvever, a decree or order has been made by the Court 
 for the jiayment of a sum of money to the husband and wife, and 
 either party dies before payment, the money Avill belong to the 
 survivor. Thus, w^here a plaintiff and his wife brought their bill 
 against an executor for a legacy bequeathed to the wife before 
 marriage, and a decree Avas made that the money should be paid 
 to the plaintiffs : upon a question whether the money should go to 
 the Avife or to the administratrix of the husband, the Court referred 
 it to one of the Judges to certify, Avho gave it as his opinion that 
 a decree in Chancery for money or any other personal thing, being 
 a judgment in Equity, Avas of the Hke nature with, and ought to 
 be goA'crned by, the same rules as a judgment for a debt or dam- 
 ages at Common Law, and consequently that the interest or ben- 
 efit of the decree, and the money due thereby, ought to go and 
 
 Effect of 
 decree in 
 Equity. 
 
 Decree for 
 payment to 
 husband and 
 wife, sur- 
 vives. 
 
 1 Anon., 2 Vern. 707. 
 
 2 Oglander v. Baston, 1 Vern. 396. 
 8 Ante, p. 89. 
 
 * Ibid. 
 
 6 Of^lander v. Baston, vbi sup. ; see Pier- 
 son V. Smith, 9 Ohio (N. S.), 554; Needles 
 V. Needles, 7 Ohio (N. S ), 4.32. 
 
 6 Garforth v. Bradlev, 2 Ves. S. 676; 
 see 2 Kent (lUh ed.),"l37, 138; McDowl 
 V. Charles, 6 .John. Ch. 132; Searing v. 
 Searing, 9 Paige, 283. 
 
 7 Ante, p. 115. 
 
 8 See Ileygate v. Annefiley, 3 Bro. C C. 
 (Perkins's ed.) 362, Mr. Eden's note (a), 
 where the cases on this subject are cited 
 and considered; Knight v. Brawner, 14 
 Md. 1. 
 
 y Hevgate v. Anncslev, 3 Bro. C. C. 
 362; aiid see Tidd v. Li.s'ter, 3 De G., M. 
 & G. 857, 871; IS ,Jur. 643; Walker v. 
 Walker, 25 Mis. (4 .Jones) 367; Walden 
 V. Chambers, 7 Ohio (N. S.), 30.
 
 MAERIED WOMEN. 119 
 
 be to such of the parties as should have the right thereto in case Ch. m. § 7. 
 
 it were a judgment for debt or damages at Common Law : accord- ' y- — '■ 
 
 ing to Avhich, if a judgment be had by husband and wife, in an 
 action brought by them for a debt due to the wife before marriage, 
 and the husband dies after the judgment, and before execution 
 sued, the debt due on the judgment belongs to the wife, and she 
 may sue execution upon the judgment, and not the executor or 
 administrator of the husband.^ Upon the same principle, in 
 Forbes v. Phipps^ where a decree was made that one-sixth of the 
 residue to which the w^ife was entitled should be paid to her and 
 her husband, and the wife died before the money was received, it 
 was determined by Lord Xorthington that the husband w^as 
 entitled to the money, not as administrator to the wife, but as 
 survivor under the decree. 
 
 With respect to the cfiect of an assignment by the husband of Husband's 
 his wife's diose in action, upon her rioht of survivorship, it has ^^^Wiment 
 
 ' i ~ 1 ' 01 reversion 
 
 been for some time settled, that where the chose in action is not does not bar 
 capable of immediate reduction into possession, as where it is in iTv lurvivor- 
 reversion or expectancy, an assignment of it will not bar the right ®^'P' 
 which the wife would otherwise have had to possess it, in the 
 event of her surviving lier husband, unless it is actually reduced 
 into possession before his death. And where a [trior life-interest and prior life- 
 is assigned to the wife, there will be no equitable merger, so as to "ssi^rfed t 
 enable the husband and wife to deal with the reversion, and bar wiftTwill not 
 her right of survivorship.^ merge. 
 
 By the 20 & 21 Vic. c. 57, a husband and -wafe can now, how- Wife may 
 ever, in the manner and sul|ject to the restrictions therein men- ilerVvcrsbn- 
 tioned, eflfectually assign her reversionary interest in personal ar\' interest in 
 estate. P'^"°"''^^^'- 
 
 It appears formerly to have been considered that, in tliis respect, No difference 
 tliere existed a difference between legal and e(iuitable choses in and^i^iuitaWe 
 action, or, to speak more correctly, between choses i?i action and ^'''^?«« *" 
 equitable interests in the nature of choses in action. With respect 
 to the latter it aj>pears to have been thought, that an assignment 
 of them by the husband would, in certain cases, without any 
 
 1 Nanney v. Martin, J Ch. I{(;p. 234; see Bisliopp «. Colebrook, 11 -Tiir. 793, V. 
 
 Coppin V. , a 1*. Wms. 41*0. If there C. K. ; Ilanciiett v. Hristoe, 22 Heav. 40G; 
 
 be a flecree in l'>|uity in favor of the hiis- Crittenden v. Posey, 1 Head (Tenii.), 311; 
 
 baml and wife, ami the liusbiind dies, tiie Ouljerley t'. Day, 1<5 Heav. 33; Kogera v. 
 
 decree will Hurvive to the wife, thoiif^h her Ancaster, 11 Iml. 300; Lynn )'. Hriidley, 
 
 name niifjht not liave been necessarily iMet. (Ky.) 232; iJair r" Avery, 28 Ala. 
 
 joined in the pmceedi'ifjs. Muse i;. Kdger- 207. Hut it is held in I'entisylvania, that 
 
 ton, (;. \V. Uud. Eq. 171); Knight V. Hraw- a husband may assign tor" a valuable 
 
 ner. 14 Md. 1. consideration the wife's choses in action 
 
 '^ 1 Kd'n, 5('2. whether thi'y bi^ presently reducible, or 
 
 8 Whittle r. Henning, 2 I'hil. 731, 735; l)e reversionary interests, "or iiossihilities. 
 
 12.1ur. 1079; ib. 2i)X: 11 H.-av. 222. over- Webb's Appeal, 21 I'enn. 24S; Sinith'a 
 
 rulin;: freed ». I'erry, 14 Sim. •')'j2, and Kstate, 22 i'enn. 130. 
 
 Hall I'. Uugonin, ib. 595; 10 Jur. 940; and 
 
 action;
 
 1-20 
 
 SUITS 1\Y ri:KS(^NS AVIlO AUTO UNDKIl DISAIUIJTY. 
 
 Cii. 111.5 7. 
 
 nor between 
 a chose in 
 action, 
 incapable of 
 beinj;:, and 
 one capable 
 of being, but 
 not actually, 
 reduced into 
 po-;>cs<ion 
 during' bus- 
 band's life. 
 
 rodiu'tion into possession beloro his doMtli, liavc tlie oftbct of defeat- 
 int>- the wito'!!« riu;ht to tlioin by survivorship ; and attempts liave 
 boon made to estabhsh distinctions in tliis respect between assiGjn- 
 nients for vahiable consideration, and assionnients Avithout consid- 
 eration or by ojieration ot'hiw : the former liavint:; been considered 
 as barring the right of tlie snrviving wife, and tlie latter as not 
 having tliat efiect. The decisions, however, of Sir Thomas Plumer, 
 in Ilornshy v. Lee,^ and Purdexo v. Jachson^ have removed tdl 
 doubts upon this sid)jeet ; and have sliown that no sueli distinc- 
 tion as tliat suj)])osed betAveen legal and equitable choses in action., 
 or between assignments of the latter for valuable consideration, 
 and voluntary or general assignments, exists.^ In the latter case, 
 Sir Thomas Plumer, after long argument, and a diligent and careful 
 investigation of all the cases which had occurred upon the i>oint, 
 ex])ressed his opinion to be, "that all assignments made by the 
 husband of the wife's outstanding personal chattel which is not or 
 cannot be then reduced into possession, whether the assignment 
 be in bankru])tcy or under the Insolvent Act, or to trustees for the 
 ])a}T;nent of debts, or to a purchaser for a valuable consideration, 
 pass only the interest which the husband has, subject to the wife's 
 legal right by survivorship." ^ 
 
 It will have been observed, that the rule, as laid down by Sir 
 Thomas Plumer, is confined to such outstanding personal chattels 
 of the wife as are not, or cannot, be reduced into possession ; from 
 whence an opinion at one time prevailed, that the rule did not 
 apply to assignments for valuable considei-ation of such choses in 
 action as at the time of the assignment were capable of reduction 
 into possession, or as became reducible into possession before the 
 death of the husband. This opinion had the high authority of 
 Lord Lyndhurst, who, in Honner v. Morton^ thus explained the 
 principle : " Equity considers the assignment by the husl)and as 
 amounting to an agreement that he will reduce the property into 
 possession; it likewise considers what a party agrees to do as 
 actually done ; and therefore, where the husband has the power 
 of reducing the property into possession, his assignment of the 
 chose in action of the wife will be regarded as a reduction of it into 
 possession." ® It appears, however, Irom later cases, that the dis- 
 
 1 2 Mad. 16; see also Hutcbings v. 
 Smith, 9 Sim. 137; 2 Jur. 231. 
 
 ■■^ 1 Russ. 1, 24, 42 
 
 8 It is said by Mr. Chancellor Kent, 2 
 Kent (11th e.i.), 137, that a voluntary as- 
 signment by tlie husband of the wife's 
 c/ioses in action, without consideration, will 
 not bind her, if she survives him; see also 
 to the same effect, Hartman v. Dowdel, 1 
 Rawle. 279; Parsons y. Parsons, 9 N. H. 
 321,322; Saddinjrton v. Kinsmnn, 1 Bro. 
 C C. (Perkins's ed.) 51, and notes; Mit- 
 
 ford V MitfonI, ■ 9 Sumner's Ves. 87, 
 note (Ij). 
 
 4 1 Russ. 70; see also Honner «. Morton, 
 3 Russ. G.5; Watson v. Dennis, ib. 90; 
 Stamper v. Barker, 5 Mad. 157, 164. 
 
 3 Russ. 68. 
 
 *> The husband may assign, for a valua- 
 ble consideration, his wife'.s choses in action 
 to a creditor, free from the wife's contin- 
 gent right of survivorship. Such an 
 appropriation of the propertv is the ex- 
 ercise of an act of ownership for a valua-
 
 MARRIED WOMEN. 
 
 121 
 
 tinction -which has been thus pointed out, between the effect of an Cii. m. § 7. 
 assignment for vakiable consideration by the husband, upon a chose 
 in action which is capable of being reduced into possession and 
 one" which is not, can no longer be relied upon.^ This point came 
 before Sir J. L. Knight Bruce V. C, in Ashhy v. Ashhj,^ who, 
 after stating that he agreed in the opinion exi^ressed in the last- 
 mentioned case of Ellison v. JElwin^ decided, that an assignment 
 by a husband for valuable consideration of a wife's chose in action^ 
 which had fallen into his ])0wer during his life, but had not been 
 in fact reduced into possession by him, did not prevent the right 
 to the chose i)i actio7i fi'om sundving: to the -unfe. 
 
 In the case, moreover, of assignments by act of law, no dis- 
 tinction exists between assignments of choses in action capable of 
 immediate reduction into possession, and those which are not so. 
 Thus, in Pierce v. Thornly^ where a married woman had a 
 vested interest in possession in a legacy, and her husband became 
 bankrupt and died, it Avas decided that the widoAV, and not the 
 assignee, was entitled to the money : because the assignment in 
 bankruptcy could not pass to the assignee a larger right, or better 
 title, than the husband himself had,^ which was a right to reduce 
 the legacy into possession, Imt which was not done in his lifetime. 
 Of course, the assignment under bankruptcy passes the Avhole 
 
 In assign- 
 ments by act 
 of law, no 
 distinction 
 between 
 choses in 
 action capable 
 of reduction 
 into posses- 
 sion, and 
 tliose not so. 
 
 ble purpose, and an actual appropriation 
 of the chattel which the husbnnd had a 
 riKht to make. 2 Kent (llth ed.), 186, 
 137; Schuyler I'. Hovie, 5 Jolin. Ch. 196; 
 Kennev (• Udall, 5 .lohn. Ch. 464; [,awrv 
 I'. Houston, 3 Howard (I\Iiss ), 394; SiteV 
 V. Jordan, 4 Hawle, 463; Tritt v. Col well, 
 31 Penn. St. 228. The doctrine that the 
 husband may assipn the wife's choses in 
 action for a viduabie consideration, and 
 thereby bar iier of her rif^ht by survivor- 
 ship Ml the debt, but sul)ject. nevertheless, 
 to the wife's e(|uity, lias been fri'i|ucntlv 
 declared, and is umlerstood to be the ride 
 best sustained by authority. 2 Kent (llth 
 ed.), 137; Hr^-an r. Spniill, 4 Jones Kq. 
 (N. C.)27; '•'ee Tohin r Di.xon, 2 Met. 
 (Kv.) 422; Shernmn v. Ilei-rart, 7 W. & 
 S. "169; \Vebl)'s App. 21 I'enn. St. 248; 
 Sinilie'8 Kstate, 22 I'enn. St. 130. If is 
 held in Alaliaina, that the hushnnd's ii-<- 
 siffnee for valiial)le coti.sideratioti is not en- 
 titled as apiiiist the wife to her choses 
 in action, unless he reduces them to pos- 
 pession during coverture. (leort^e »'. 
 Goldsby, 23 Ala. 326; Arrineton »• Yiir- 
 b(irou;;h, 1 .loiiex K<|. 72; but see 'I'ultle 
 V. Iwiwier, 22 (Jonn 58, and Marion r. 
 Tit.swf.rth, 18 (5. Mon. 682; Hill v. lown- 
 flend, 24 Texas, 675. 
 
 2 Kent (llih .'d), 138, 139, no|e« : Sitcr 
 r. Joplan, 4 l!a\vle, 40H; M.-riwelher r. 
 Booker, 5 Litt. 256; I'lnkard c. Smith, 
 
 Litt. Sel. Gas. 331; Dade v. Alexander. 
 
 1 Wash. 30; Tune -v. Cooper, 4 Sneed 
 (Tenn.), 296; Houck v. Camplin, 25 Mi.ss. 
 (4 Jones) 378; Needles v. Needles, 7 Ohio 
 (N. S.), 432. 
 
 1 Ellison V. Elwin, 13 Sim. 309, 315; 
 S C. nom. Elwvn v Williams, 7 Jur. 337. 
 
 2 1 Coll. 553'; 8 Jur. 1159; .see also Box 
 V. Jackson, Dm. 42, 83 ; 2 Con. & L. 605 ; 
 I,e Vasseur r. Scrattoii, 14 Sim. 116; 
 Michelniore r. Mudjre, 2 Gift". 183. 
 
 y 2 Sim. 167, 176; and see Cavner v. 
 Wilkinson, 2 Diek. 491; 1 Hro. C." C 50. 
 n.: Mitfonl r Mitfurd, 9 Yes. 87, 95, 100. 
 
 ■* A {reneral ass'^nmeut in bankrii|>tcy 
 or under insolvent laws, jiasses the wife's 
 property, and her choses in action, but 
 subject to her rifjht by survivorship; and 
 if t)ie husband dies before the assij^tiees 
 have reduced the property to possession, 
 it will survive to the wife, for the assifjnees 
 possess the same ri;;hts a« the luisl)iind 
 tjerore tiie bankruptcy, and none other. 
 
 2 Kent (llth ed.), 138. and note; Van 
 Ep|)s )". Van Deusen, 4 I'aige, 04; Outwidl 
 V. Van Winkle, 1 C.reen <'h. 516; Mitford 
 r. Mi'furd, 9 Sumner's Ves. 87, Perkins's 
 notes («), and (r); Sa<ldiiif,'fon )'. Kiu.s- 
 mau, 1 IJro. (J. (_'. ( Perkins's ed.) 44, notes; 
 Mitilu'll )'. Winslow, 2 Story, 630; Moore 
 r Moore. 14 U Mon. 259; I'oor v. llazle- 
 ton, 15 N. H. 664; Mann v. riiggiii«, 7 
 Gill, 265.
 
 122 
 
 SUITS BY PERSONS WHO ARE UNDER DTSABILITY. 
 
 Cii. HI. 5 
 
 Assiirnnu'iit 
 by luisliaiKl 
 will not 
 (K'privo witb 
 of rifiht to 11 
 settJoiiu'iit ; 
 
 nor will Iut 
 conciin'cnce 
 theivin, where 
 otluTwisc 
 inviUid ; 
 
 nor that of 
 her father 
 during her 
 infancy. 
 
 Effect of hus- 
 band's release 
 of her choses 
 in action ; 
 
 intiTcst ol'llu' Ituslinnd in tlio Avifo's chose in action, at the timo of 
 tln' l):iiikru|)tc'y.' 
 
 It follows, thoivforc, tliat an assigiinu'ut by the Inishand of his 
 wife's oquitable chose i7i action, Avill neither have tlie eft'ect of de- 
 priving the wife of hor right to it in the event of her surviving Iter 
 liusbancl, nor of depriving her of her eijiiitable right to a settlement 
 out of it, should any application for tliat j)urposo be made by lier 
 during the lifetime of her luisband." And even the wife's concur- 
 rence in the assignment by her husband during coverture (unless 
 uiuler the powers conferred by the Act above referred to),® will not 
 liave the eftect of rendering siu'h assignment valid against her 
 claim by survivorship, in cases where an assignment by her hus- 
 band alone would not have had that consequence.* Where, also, 
 a feme covert is an inflint, the circumstance of her father being 
 party to the deed will not alter the interest of the wife.'' 
 
 With respect to the effect of a release l)y the husband, in depriv- 
 ing his wife of her right by survivorship to her choses in action, 
 not reduced into possession during the coverture, it appears that 
 he can release debts due to her before maniage; legacies abso- 
 lutely given to her ; ® and interests accruing to her under the 
 
 1 Ripley V. Woods, 2 Sim. 165; 2 Kent 
 (lltli ed.), 138 and notes; Lviin v- Brad- 
 lev, 1 Met. (Kv.) 232; Duke v. Palmer, 
 10 Rich. Eq. 380; Bugg i'. Franklin, 4 
 Sneed (Tenn.), 582. 
 
 2 Ante, p. 89; Bryan v. Spruill, 4 Jones 
 Eq. (N. C.) 27. In Kenney v. Udall, 5 
 John. Ch. 464; S. C. 3 Cowen, 590, it was 
 held, that the wife's equity attached upon 
 her per.-onal property, whenever it was 
 subject to the jurisdiction of the Court, 
 !ind was the object of a suit, in any hands 
 to which it might come, or in whatever 
 manner it migiit have been transferred. 
 It makes no diti'erence whether the appli- 
 cation to the Court for the property be 
 by the husband, or his representatives, or 
 assignees, or by the wife, or her trustee, 
 seeking a provision out of the property. 
 This equit}' is equally binding, whether 
 the transfer of the property be b}' opera- 
 tion of law, under a commission of bank- 
 rnptcy, or bj' levy of an execution, or by 
 act of the party to general assignees, or 
 to an individual, or whether the particular 
 transfer was voluntary, or made upon a 
 good and valuable cunsideration, or in 
 pavment of a just del)t. 2 Kent (11th 
 ed'), 140; Durrc. Bowver, 2 M'Cord Ch. 
 (S. C) 368; Duvall v. "Farmers' Bank of 
 Maryland, 4 Gill & J. 282; Earl of Salis- 
 bury r. Newton,! Eden, 370; Bosvil v. 
 Bra'nder, 1 P. Wms. 458; 2 Storv Eq. Jur. 
 § 1412; Lvnn r Bradlev, 1 Met. (Ky.) 2.32; 
 Bradley v. .McKenna, 14 Md 258. 
 
 In Davis v. Newton, 6 Met. 537, the 
 Court held, that while an assignee of 
 an insolvent debtor, under the Statute 
 of Massachus'^tts, 18.'58, c. 103, is proceed- 
 ing to reduce the choses in action of the 
 
 debtor's wife to possession, or after he has 
 obtained payment thereof, and before dis- 
 tribution of the debtor's estate, the wife 
 may apply to the Court, by bill or petition, 
 for a suitable provision "to be made for 
 her, out of the proceeds of such clioses in 
 action, and the Court will make such 
 provision according to the circumstances 
 of the case. See also to the same point 
 Mitford V. Mitford, 9 Sumner's Yes. 87, 
 Perkins's notes; Pryor v. Hill, 4 Bro. 
 C. C. (Perkins's ed.) 143, note (a); Van 
 Epps D. Van Deusen, 4 Paige, 64; Smith 
 V. Kane, 2 Paige, 303; Steiiinietz v. Hal- 
 then, 1 Glvu & Jam. 64; Elliot ». Waring, 
 5 Monroe,' 341; 2 Story Eq. Jur. § 1411; 
 Saddington v. Kinsman, 1 Bro. C. C. 
 (Perkins's ed.) 44, and notes; Perry clear 
 V. Jacobs, 9 Watts, 509; lifumford v. 
 Murray, 1 Paige, 620; Fry t\ Fry, 7 Paige, 
 • 462; Martin v. Martin, 1 Hoff. Ch. 462; 
 Burden v. Dean, 2 Sumner's Vcs. 607, 
 note (n); Eunib v. Millies, 5 Sumner's 
 Ves. 517, note (b), and cases cited; Dearin 
 V. F}tz|>atrick, 1 Meigs, 551. 
 
 3 20 & 21 Vie. c. 57. 
 
 4 See Re >Vhittingham, 10 Jur. N. S. 
 818; 12 W. R. 775, V. C. \V., as to effect 
 of protection order, in defeating an assign- 
 ment of reversionary intere-t which tell 
 into possession after the order had been 
 obtained. Re Insole, L. R. 1 Eq. 470; 11 
 Jur. N. S. 1011, M. K. 
 
 5 Stamper v. Barker, 5 Mad. 157. 164. 
 
 6 Gilb. Eq. 88; 2 Roll. 134; 1 Briijht, 
 H. & W. 72 ; Sir L. Shad well V. C. held, 
 however, in the case of Harrison v. An- 
 drews, 13 Sim. 595, that a receipt was 
 insutEcient.
 
 MARETED WOMEN. 
 
 123 
 
 Statutes of Distributions, and the like,^ and tliat these acts might Cn. III. § 7. 
 
 be done by him, although he and his wife were divorced a mensa 
 
 et thoro, because the marriage still subsisted.^ In the case oflfore 
 
 V. Becher,^ a single woman being entitled to an annuity secured by 
 
 bond, married; her husband executed a release of the annuity, 
 
 and died, leaving his wife surviving ; it turned out that the release 
 
 had been executed under a mistake and was inoperative, so that it 
 
 was not necessary to decide upon its effect on the wife's right by 
 
 surA-ivorship. Sii- Lancelot Shadwell V. C, however, observed, 
 
 " K a man gives a bond, or a promissory note, to secure an annuity 
 
 to a single woman, and she afterwards mames, her husband may 
 
 release the bond or note ; and if he releases the security, there is 
 
 an end to the annuity." * 
 
 Where, however, the interest of the wife in the cliose in action where rever- 
 is reversionary, the release of the husband is as inoperative as his ®'°'^^^- 
 assio-nment, to affect the wife's right by sur\ivorship,5 It seems Effect of 
 
 ° , 1 1 1 1 n 1 • assignment 
 
 also that the assignment or release by the husband durmg cover- or release by 
 ture of his wife's annuity, does not prevent her right by survivor- J^^'jJ'^'^'^ "^ 
 ship to pajTuents accruing after his death ; it being considered that annuity. 
 each successive payment thereof constitutes a separate reversionary 
 interest.® 
 
 It is to be observed, that the rules above laid down apply to 
 those interests of the wife which are of a strictly personal nature. 
 In the case of those interests which fall under the description of 
 chattels real, important distinctions exist with respect to the effect Chattels real 
 of an assignment by a husband, in barring his wife of her right in ^ '^ ^• 
 them by survivorship.'' 
 
 The interest given by the law to the husband in the chattels nature of 
 
 , . , .o , ' T 1 /« 1 • • • husband's 
 
 real which a wife has, or may be possessed ot during marriage, is interest 
 
 a quahfied title: being merely an interest in right of his wife, therem; 
 with a power of alienating during covertm-e ; ^ so that, if he do 
 
 not dispose of his wife's terms for years or other chattels real in 1^^'^^,;^^^^]^" 
 
 bis lifetime, her right by survivorship will not be defeated; if, defeat her 
 
 1 2 Kent (11th ed.), 135, 136, 137; 6 Rogers v. Acaster, 14 Beav. 445; see 
 
 Commonwealth r. Manley, 12 Pick. 175; Terry v. Hrunson, 1 Kich. Ch. C8. 
 
 Marshall w. Lewi% 4 Litt. 141; Tentle v. « Stifle v. Everitt, 1 M. & C. 37, 41; 
 
 Muncy, 2 .1. J. Marsli. 82; Schuyler v. Thompson r. Butler, Moore, 522; Wliit- 
 
 Hovle, 5 .lolin. (Jh. 1'jO; Manioa jj. Tits- marsh v. Robertson, 1 Y. & C. C. C. 
 
 worth, IH U. Mon. 5^2; Lowerv r. Criig, 715; (J Jur. 921; Whittle v. Henning, 2 
 
 30 Miss, (Geo ) 19; Needle.s v."Noedles, 7 I'liil 731; 12 .Fur. 107C; and see Tid<l v. 
 
 Ohio (N. .S.), 432. Lister, 3 De G., .M. & G. 867, 874; 18 Jur. 
 
 ■^ Stephens r. I'otfy, Noy, 45; Cro. Eliz. 543. 
 
 90S; but this cannot be done altera dis- ' On this subject, see 1 Bright, H. & 
 
 sohition of marriat^e, nor altera judicial W. 94-111. 
 
 separation or ()rotection order. \Vclls v. » In a mnrpinal abstract, 9 Mod. 104, 
 
 Malbon, .31 Heav. 48; 8 .Jur. N. S. 249; it is said thiit a wife being possessed of a 
 
 HcMtb ?'. Lewis, 10 Jur. N. S. 1093; 13 W. term of years, and having married an 
 
 H. 12H, V. C. S. alien, the'marriage is not a fjift in law of 
 
 8 12 Sim 40.5; 6 Jur. 93. tiie term. 
 
 * See Shepard v. Shepanl, 7 .loiiu. 
 Ch. 57.
 
 1-21 
 
 SUITS r.Y PKRSOXS ^VIIO AKF, UNDER DISAniLITY. 
 
 On. lll.§:. 
 
 riijht liy siir- 
 vivoRsliip; 
 
 if ho survive, 
 he takes them 
 as a marital 
 ri^ht. 
 
 No distinc- 
 tion lietween 
 logral and 
 eqiiitahle 
 chattels; 
 
 nor between 
 trust of a term 
 and term 
 itself; 
 
 nor between 
 term in trust 
 for wife, and 
 term in trust 
 to raise 
 money for 
 her. 
 
 lunvovor, lio do not itlii'ii tlioin, niitl li(> survivi' liis wii'c, tlii^ hwv 
 U'ivi's tlu'in to liim: not as represent inij; the wife, but- :is :i marital 
 rioht.i Tims, if -a /one covert hi\^ a term for years, and dies, the 
 lease is the Imsband's, and he may maintain ejeetment without 
 taking out letters of administration;- and if a wile, tenant for a 
 term of years of a copyhold, marries and dies before the term is 
 exj)ired, the husband shall continue without any new admission or 
 fine.^ Tlicse rules equally n])])ly where the interest of the Avife in 
 the chattel is only equitable; thus, where a term of years deter- 
 minable upon lives, was assigned to trustees in trust for a woman 
 who married and died : upon a question whether this trust went 
 to the husband, who survived, or to the wife's administi-ator, it 
 was held clearly, that the trust of a term, as well as the term 
 itself, survived to the husband, and that he need not take out 
 administration ; * and so, as we have seen in the last case, if a man 
 assign over the trust of a tenn which he has in right of his wife, 
 this shall prevail against the wife, though she survives.^ This 
 doctrine, as far as regards the trusts of a terra assigned to a 
 trustee for a Avife before marriage, appears to have been first laid 
 doAvn by the House of Lords, on appeal in Sir JS. Turner's case,® 
 which, from the report of the subsequent case o? Pitt v. JTutU, 
 appears to have excited the surprise of Lord Chancellor Notting- 
 ham ; who, however, after some hesitation, said he must be con- 
 cluded by the Lords' judgment, and decreed accordingly .'' The 
 ground of the decision in Sir IE. Turner's case appears to have 
 been this : that as the husband can at Law dispose of a terra for 
 years, so he may dis]iose of the trust of a term in Ecjuity, because 
 the same rule of property must prevail in Equity as well as at 
 Law ; * and this has ever since been considered as the law of the 
 Court.9 
 
 In 'Walter v. Saxmder^^^ a distinction was attempted to be drawn, 
 in argument, between a term in trust to raise money for a woman, 
 and a trust of the term itself for the woman ; but the Master of 
 the Rolls determined that no such distinction could be taken." It 
 has also been held, that if the wife has a judgment, and it is ex- 
 tended upon an elegit^ the husband may assign it Avithout consider- 
 
 1 2 Kent (lUh ed.), 134. Tlie wife's 
 interest in a cliattel r^al may be as«ip;ned 
 by the husband. Merriweather c. Brooker, 
 5 Litt. 256. 
 
 2 Pale V. Mitchell, 2 Eq. Ca. Ab. 138, 
 pi. 4, n. («). 
 
 3 Earl of Uath v. Aljriev, 1 Dick. 263 
 arp 
 
 4 Pale I'. Mitihfll, uU sup. 
 
 5 Packer V. Wyndliam, Prec. Ch. 412, 
 418; S:inders v. i'.ifre. .3 Ch Hep. 22-3; 
 Pitt r. Hnnf, 1 Vfrn. 18; 2 Clia. Ca. 73; 
 Uonne v. Hart, 2 K. & M. 360, 364. 
 
 8 1 Vern. 7. 
 
 T 1 Vern. 18; 2 Cha. Ca. 73. 
 
 8 Per Lord Ilardwicke, in Jewson v. 
 Moulson, 2 Atk. 417, 421. 
 
 " Bati.-s r. Dandy, 2 Atk. 207; more 
 fullv reported, 3 Russ. 72, n.; Inclfibm t). 
 Nofthcote, 3 Atk. 430; see Marshall v. 
 Lewis, 4 Litt. 141; Hunter v. Hallutt, 1 
 Edw. Ch 388. 
 
 i» 1 Eq. Ca. Ab. 58, pi 5. 
 
 n See also Packer v. Wj-ndham, Prec. 
 Ch. 412, 418.
 
 MARRIED WOMEN. 125 
 
 ation. So, if a jiidgment be given in trust for a feme sole who Cir. ni. § 7. 
 
 manies, and, by consent of lier trustees, is in jjossession of the "— — r ^ - 
 
 land extended, the husband may assign over the extended interest ; 
 
 and by the same reason, if she has a decree to hold and enjoy Where decree 
 
 lands until a debt due to her is j^aid, and she is in possession of hold lands till 
 
 the land under this decree and marries, the husband may assign * ®"™ P'^'*^- 
 
 it without any consideration, for it is in the nature of an extent.^ may assi-m 
 
 A husband mav, as we have seen, assign his wife's mortLcaoe for a kite's mort- 
 
 . ; 1 • ^. 1 • 11 g^gfi tor 
 
 tenn ; but il the mortgage be m lee, then it seems clear that the years, but not 
 wife's right to the debt by survivorship is not affected by any •„ fJ"*so'^as 
 assignment made by the husband, or by his bankru^^tcy : unless to bar her 
 the debt is reduced into possession in his lifetime.^ survivorslaip. 
 
 It is an established jirinciple, in deciding upon the effect of Resulting 
 mortffasces, whether of the estate of the wife, or the estate of the ^'""'^1 '" e 
 
 o & ' _ .... . mortgage or 
 
 husband, that if the wife joins in the conveyance, either because imsiiand's or 
 the estate belongs to her, or because she has a charge by way of ^vhere she *^' 
 jointure or dower out of the estate, and there is a mere reservation, J"'"^. 
 in the proviso for redemption of the mortgage, which would carry 
 the estate from the jDcrson who was owner at the tune of executing 
 the mortgage : there is a resulting trust for the benefit of the wife, 
 or for the benefit of the husl>and, according to the circumstances 
 of tlie case.* 
 
 It is to be observed, that although the husband is considered where trust 
 entitled to assign the trust of a term or other real chattel created of-itermis 
 
 ° . . assigned m 
 
 for the benefit of his Avife, yet, where a term or chattel real has trust for wife, 
 
 been assigned in trust for a wife, with the privity or consent of ^)fii|,^™md"* 
 
 lier husband, tlien without doubt he cannot disj^ose of it.* A he laimot 
 
 fortiori he may not, if he make a lease or term of years for the '' '*^' ' 
 
 benefit of his wife.^ And where a term was raised out of the Resulting 
 
 wife's inheritance, and vested in trustees for purposes which Avere trust of 
 
 ... 1 11. 1 ,• 1 1 /. 7- 1 •.■ 1 satisfied trust 
 
 satisfied, and sul»ject thereto tor the benefit 01 the wile, her exec- term, created 
 
 utors, administrators, and assigns, it was held, that the particular ?"to'\viie's 
 
 puqjose being served for which the term was raised, the trust did 
 
 not go to the liusband, wlio was tlie administrator of the wife, but 
 
 follo\ve<l the inheritance.'' From tliis it may be interred, that 
 
 the assignment of the trust of sucli a term hy the liusband in the 
 
 1 Lord Carteret v. Paschall, .'5 1'. Wins. 227; 9 .lur. yjl'J; and see 3 Do G., M. & 
 
 200. Ci. lo. 
 
 ■■^ lUirnett V Kinnastoii, 2 Vern. 401; ■• Sir E. Turner's case, 1 Vern. 7; seo 
 
 Mitfur.l r. Milfcrd, 9 Ves. 87, 9.'.; I'acker also l5o^vil v. IJrander, 1 1'. Wins. 458; 
 
 V. Wyiidliam, h/h KM/J.; I'liribjw r. .laekson, I'itt v. Iluut, 1 Vern 1«, wliere Lord Not- 
 
 1 Kus.s. tjf*; lloniier ».' Morton, 3 liuss. 05; tiiighain, however, said, tliat to ])reveiit a 
 
 Eili<oii r, Kiwin, 13 Sim. 309; S. (J. iwm. husband, he must be a party to tiic assign- 
 
 Elwyn ''. Williams, 7 Jur. 337; overruling int-iit. 
 
 lJo«vii V. lirander, 1 P. Wms. 45b; liules '' Wiche's case, Sencc. Pasc. 8 Juc , 
 
 V. iJaiidy, ubi mip. cited 1 Vern 7, Ed. liaithby, md'u. 
 
 8 Lord Hedes'lale, in Jackson v. bines, "^ Best v. Stainplbrd, 2 Ereein. 288; 2 
 
 1 IJIigli. 126, cited by Sir .1. L. Knight Vern. 620; Prec. Ch. 252. 
 Brute V. C. in Clark v. liurgh, 2 Coll.
 
 i2r. 
 
 SUITS 1?Y PEUSONS WHO ARE UNDER DISAIULITY. 
 
 Cn. 111. V 
 
 EtVoit ofdi- 
 von-o a ineitfd 
 ei llioro, on 
 husbaiurs 
 rights iu 
 wife's term 
 of vears. 
 
 Agreement 
 by husband 
 to assign her 
 chattels real, 
 will deprive 
 her of sur- 
 vivorship. 
 
 Underlease 
 by him, good 
 against her 
 pro tanto. 
 
 Assignment 
 upon con- 
 dition, and 
 entry for 
 breach, where 
 breach cannot 
 take place in 
 his lilistime ; 
 
 litl'linu' oi" tlie wil'o, would nut alVci't (lie. \virc*'s interest in it by 
 survivorslii|t. 
 
 In an nnonynions case Avhicli occurs in 9 Modern Reports,^ it 
 ai^lK'ars tliat ix/ti/ie covert, but who had been divorced a i/ietisd et 
 thon\ and had aUniony allowed to support her, applied to the 
 Court to restrain her husband fi'om j^i'oceeding to sell a tenn of 
 years of which she was possessed before her marriage, and that the 
 Court at first refused the injunction, because the se])ai-ation a 
 jutitsd ct t/ioro did not destroy the marriage, and during the time 
 the marriage continued, the husband had the same power to dis- 
 pose of the term which he had in right of his wife, as he would 
 have had if it had been in his own right ; but afterwards, upon 
 counsel still pressing for an injunction, in order that the merits of 
 the cause might come before the Court, and insisting very much 
 upon the hardship of the case, the Court granted it, on the ground 
 that, though the marriage continues notwithstanding the divorce, 
 yet, under such circumstances, the husband does nothing in his 
 ca])acity of husband, nor the wife in that of wife. It is to be 
 remarked, however, that this was merely an interlocutory order, 
 to prevent the term being jDarted with by the husband till the 
 question should be properly discussed, and it does not appear that 
 any fui'ther proceedings were ever had in the cause. 
 
 It seems, that an absolute transfer or assignment by the husband 
 of his wile's term of years, or other chattel real, is not requisite to 
 deprive the wife of her I'ight by sur\dvorshij) ; but that, since an 
 agreement to do an act is considered in equity the same as if the 
 act were done, so, if the husband agree or covenant to dispose of 
 his wife's term of years, such covenant will be enforced, although 
 he dies in her lifetime.^ 
 
 The power which the law gives the Imsband to alien the whole 
 interest of his wife in her chattels real, necessarily authorizes him 
 to dis^jose of it in jjart ; il^ therefore, the husband be possessed of 
 a term of years in right of his wife or jointly with her, and demise 
 it for a less term, reserving rent, and dies, such demise or undei'- 
 lease will be good against her, although she survive him : but the 
 residue of the original term will belong to her, as undisposed of by 
 her husband.'^ 
 
 So also, if the husband alien the whole of the term of wdiich he 
 is possessed in right of his wife, upon condition that the grantee 
 pay a sum of money to his executors, and then dies, and the con- 
 dition is broken, upon which his executors enter upon the lands, 
 this disposition by the liusband will be sufficient to bar the wife of 
 
 1 9 Mod. 43. 
 
 2 Bates V. Dandy, 2 Atk. 207 ; 3 Kuss. 
 72, n. ; see also Steed v. Cragh, 9 Mod. 
 
 43; Shannon v. IJradstreet. 1 Sch. & 
 Lef. .52. 
 
 ** Sym's case, Cro. Eliz. 33; Co. Litt. 
 46 b.
 
 MARRIED WOMEN. 
 
 127 
 
 her interest in the term : it having* been wholly disposed of by 
 him during his life, and vested in the grantee.^ It seems, however, 
 that if the condition had been so fi-amed that it might have been 
 broken in the husband's lifetime, and he had entered for the breach, 
 and had then died before his wife, without making any disposition 
 of the tenii, she would be entitled to it by survivorship : because 
 the husband, by re-entry for a breach of the condition, was returned 
 to the same right and interest in the tenn as he was possessed of 
 at the time of the grant ; viz., in right of his wife.^ 
 
 In cases of assignments by the husband of his wife's chattels 
 real, the wife ^\\\\ be equally barred of her survivorship, whether 
 the assignment be for a valuable, or without any consideration ; ^ 
 but it is to be observed, that there is a great distinction where the 
 disposition is of the whole or part of the property, and where it is 
 only a collateral grant of something out of it ; for although, if a 
 husband pledge a term of years of his wife for a debt, and either 
 assign or agree to assign all or jDart of such tenn to the creditor, 
 the transaction will bind the wife,* yet, if the transaction be col- 
 lateral to, and do not change the 2)roperty in the term, as in the 
 grant of a rent out of it, then, if the wife survive the husband, her 
 right being paramount, and her interest in the chattel not having 
 been dis^jlaced, she will be entitled to the term, discharged from 
 the rent.® 
 
 Moreover, it has been decided, that the husband cannot assign 
 a reversionary interest of his Avife's in chattels real, of such a de- 
 scription as that it cannot by possibility vest during the coverture.® 
 
 In regard to the right of the husband's executors, or his sur- 
 viving wife, to rent reserved uj^on underleases of her chattels real, 
 and to the arrears of rent due at the husband's death, there is a 
 difference of opinion in the books, which may i)robably be recon- 
 ciled by attending to the manner in which the rents were reserved. 
 Accordingly, if the husband alone grant an underlease of his Avife's 
 tenn of years, reserving a rent, that would be a good demise, and 
 bind the wile as long as the sub-demise continued ; the husband's 
 executors, therefore, would, as it is presmnod, be entitk^d not only 
 to the subsequent accruing rents, but to the arrears due at his 
 death.'' And it would seem, that the principle of the last case 
 would entitle tlie executors, to the exclusion of the surviving wife, 
 to subsequent rents and all ari'ears at the huslmnd's death, altiiough 
 the wife was a i)arty to tlu; underlease, i)rovitk;d the rent were 
 
 1 Co. Litt. 46 b. 
 
 2 See WatU v. Thomas, 2 P. Wms 304, 
 866. 
 
 8 Lord Carteret v. Pa«cJiHl, S P. Wros. 
 197, 200; Mill'oril i'. iMifford, « Ves. W. 
 
 * ISates V. Dandy, 2 Alk. 207; a Kuss. 
 72, n. 
 
 6 Co. Litt. \U b. 
 
 Dul.crley v. Day, 16 Heav. 33; 10 Jur. 
 6t<l; i;«(;ers v. AiicaHtcr, 11 Iiid. 300; And 
 see Sale v. Saunders, 24 Miss. 24. 
 
 7 1 Roll. Abr. 344, 345; Co. Litt. 46 b. ; 
 2 Lev. 100; 3 Keb. 300; 1 Bright H. & 
 W, 43-47. 
 
 ch. m. § 7. 
 
 where breach 
 n\a.y happen 
 dining his 
 life. 
 
 No difference 
 between 
 voluntary 
 assignment, 
 and assign- 
 ment for 
 valuable 
 consideration 
 of chattels 
 real. 
 
 Husband 
 cannot assign 
 a chattel real 
 of wife inca- 
 pable of vest- 
 ing during 
 coverture. 
 'NAliere rents 
 reserved upon 
 unilerlease of 
 wife's term.
 
 128 SUITS 15Y TEKSONS WHO AKE UNDER DISABILITY. 
 
 Th. III. §7. rosorvoil to lln' IiusUmiuI only: because tlio cllect of the sub-demise 
 
 "■^ ^^ ' :uul ivsei-vation was an absolute disposition, jO/'O to/i^o, of the wife's 
 
 (.>riLiinal term, wliit-h she eouhl not avoid, and the rent was the sole 
 and absolute projierty of the husband.^ But if, in the last case, the 
 relit had been reserved by the husband to himself and wife, then, 
 as their interests in the term granted and the rent reserved were 
 joint and entire, it is conceived that the Avife, upon surviving her 
 luisband, would be entitled to the future rents, and that she would 
 be equally entitled to the arrears of rent at her husband's death : 
 because they remaining in action, and being due in respect of the 
 joint interest of the husband and wife in the terra, would, with 
 Law of Scot- their pruicipal the term, survive to the wife.^ It may lastly be re- 
 land, as to marked that, by the law of Scotland, the choses in action of the 
 in action. wife become the property of the husband, without any condition 
 on his part of reducing them into possession. If, therefore, an 
 English testator leaves a legacy to a married woman domiciled in 
 Scotland, and her husband dies before payment, the legacy is the 
 property of the husband's representatives, and not of the widow. 
 Where, however, in such a case, the executor's paid the legacy to 
 the Mddow, in ignorance of the law of Scotland, the payment to her 
 was held to be good.^ 
 
 1 The rents and profits of a wife's real rents of tier lands, though she ma.j have 
 
 estate, which accrue during coverture, an equity to a settlement out of the rents, 
 
 belong absolutely to the husband, and do as against her husband's vendees. Smith 
 
 not survive to the wife after his death. v. Long, 1 ilet. (Kv.) 486. 
 
 Clapp V. t^toughton, 10 Pick. 463; Bennett '^ 4 Vin. Abr. 117, D. a. 
 
 r. Bennett, 34 Ala. 53. In Kentucky, 8 Leslie v. Baillie, 2 Y. & C. C. C. 91, 
 
 even under liev. Sts. art. 2, § 1, p 3S7, 95; 7 Jur. 77. 
 the wile has not a separate estate in the
 
 CHAPTER IV. 
 
 PERSONS AGAINST WHOM A SUIT MAY BE INSTITUTED. 
 
 Section I. — Generally. 
 
 Having pointed out the persons who are capable of instituting 
 suits in Equity, and considered the peculiarities of practice ap- 
 plicable to each description of parties complainant, we come now 
 to the consideration of the j>ersons against whom suits may be com- 
 menced and carried on, and the practice of the Court as ap})licable 
 to them. 
 
 A bill in Equity may be exhibited against all bodies politic and 
 corporate, and all other persons whatsoever, who are in any way 
 interested in the subject-matter in litigation,^ except only the 
 Sovereign, the Queen-consort, and the Ileir-aj^parent ; whose pre- 
 rogatives prevent their being sued in their own names, though they 
 may in certain cases, as we shall see presently, be sued by their 
 respective Attorneys or Solicitors-General.^ 
 
 Whn may be 
 defendants : 
 
 1 Story Eq. PI. § 68. 
 
 ■^ In Kiigland, the King and Queen, 
 thougli they may sue, are not liable to be 
 sued; and m America a similar excniption 
 generally belongs to the Government or 
 btate. atory Kq. PI. § 69. Tliis rule ap- 
 plies only where the .State is a party to 
 the record, anrl not where the State is only 
 interested in the subject-matter of a suit 
 brought against her ollicers in tlieir ollicial 
 capacity in a Court of (jhancery. .Michigan 
 State iJank t'. Hastings, 1 Douglass, 'iZii. 
 
 No direct suit can be maintained against 
 the United States, without the authority 
 of an .\ct of Congress, nor can any direct 
 judgment be awHr(le<l again^l them lor 
 costs. Marshall C. J. in (Johens r. Vir- 
 ginia, 6 Wheal. Ill, 41.i; Unitetl States 
 r. Clarke, B Peters, 444; United Slates c. 
 baniey, C. C. Marylan.l, 3 Hall, Law .J. 
 U«; U'nitcd States ?■. Wells, a Wash. C. 
 C 161. Hut if an action he bmught by 
 the Unitel .Stales, to recover money in 
 the hands of a purty, he may, by wmv of 
 defence, st-t up any legal or equilable 
 claim he has against Ihe U'niled .States, 
 an<l need not in such case be turiie<l rounil 
 to an applicalion to (Jongress. Act of 
 Congress, .March 3d, 17'j7, c. 74, §§ 3, 4 ; 
 United States v. Wilkiiis, 6 Wheat. 13.j, 
 
 VOI^. I. 
 
 143 ; Walton v. United States, 9 Wheat. 
 651; United States v. McDaniel, 7 Peters, 
 16; United States v Ringgold, 8 Peters, 
 163; United States v. Clarke, 8 Peters, 
 436; United States v. Kobeson, 9 Peters, 
 31b; United States v. Hawkins, 10 Peters, 
 125 ; United States v. Bank of the Metrop- 
 olis, 15 Peters, 377. 
 
 formerly one of the United States 
 might be sued by the citizens of another 
 State, or by citizens or subjects of any 
 foreign State. See Chisholm v. State of 
 Georgia, t Dallas, 419. Ihe law in this 
 respect was, however, changed by ail 
 aineiitlmenl of the Constitution of tlio 
 Uiiiied States, which (Art. XI. of the 
 Aiiiendments) declares tliat the judicial 
 jiower of ihe United States shall not bo 
 construed to exteml to any suit in Law or 
 Lquity, commenced or pro.secuted against 
 one of the United States by citizens of 
 anoilier Stale, or by citizens or subjects of 
 any foreign State. This inhibition a])- 
 plies only to citizens or subjects, and docs 
 not extend to suits by a Stale or by foreign 
 States or i'owers. The Cherokee Nution 
 i". (ieorgia, •> Peters, 1; New .Jersey v. 
 New Vork,6 Petei's, 284. Ihey retain the 
 ca()acity to sue a State as it was original- 
 ly granted by the Constitution; and the 
 
 All bodies 
 politic and 
 corporate, 
 and persons: 
 except tlie 
 Soverergn, 
 Queen-con- 
 sort, and 
 Heir-aj)par- 
 ent, who are 
 sued by their 
 Attorneys- 
 General.
 
 100 
 
 PERSONS AGAINST WHOM A SUIT MAY BE INSTITUTED. 
 
 (^11. IV 
 
 Married 
 women. 
 
 Idiots and 
 lunatics. 
 
 Infants. 
 
 But bank- 
 rupts, out- 
 law.*, attaints, 
 and convicts, 
 cannot, in 
 general, be 
 defendants. 
 
 Hut altlioiiyh all jiorsons are siibjocti'd to be sued in Equity, tlierc 
 are some individuals wliose riglits and interests are so mixed up 
 and blended with those of others, tliat a bill cannot be brought 
 against tlu'in, ludi-ss such other j)crsons are joined Avith them as 
 co-defendants; and there are ather individuals who, althougli their 
 interests are distinct and indejiendent, so that they may be sued 
 alone upon the record, are yet inca])able, fi'om the want of maturity 
 or weakness of their intellectual faculties, of comlucting their own 
 defence, and must, therefore, apply for and obtain the assistance 
 of others to do it on their behalf 
 
 In the first class are included married women, whose husbands 
 must be joined with them as co-defendants upon the record : unless 
 they are jjlaintitls or exiles, or have abjured the realm, or the Avife 
 has been judicially separated or has obtained a protection order ;^ 
 and persons who have been found idiots or lunatics, whose com- 
 mittees must be made co-defendants Avith the persons whose 
 proi)erty is intrusted to their care.'^ 
 
 Under the second head are comprised infants, and all jiersons 
 who, although they have not been found idiots or lunatics by in- 
 quisition, are nevertheless of such weak intellects as to be incapable 
 of conducting a defence by themselves ; in both which cases the 
 Court Avill a])point guardians, for the puq^ose of conducting the 
 defence on their behalf 
 
 There is another class of persons, who, although they are under 
 no ])ersonal disability which prevents their being made amenable 
 to the jurisdiction of the Court, yet from the circumstance of their 
 property being vested in others, either permanently or temporarily, 
 *are not only incapable of being made defendants alone, but as long 
 as the disalnlity under which they labor continues, ought not, as 
 a general rule, to be parties to the record at all. In this class are 
 included bankrupts, outlaAvs, and persons attainted or convicted of 
 treason or felony. 
 
 Section II. — The Qtieen^ s Attorney- General. 
 
 Attorney- 
 General 
 may ha a 
 defendant, 
 where rights 
 of the Crown 
 are incident- 
 ally in 
 question. 
 
 Although the Queen's Attorney-General, as rejjresenting the 
 interests of the Crown, may, in certain cases which will be pres- 
 ently pointed out, be made a defendant to a bill in Equity, yet this 
 is to be understood as only applicable to cases in which the in- 
 terests of the Crown are incidentally concerned ; for where the 
 rights of the CroAvn are immediately in question, as in cases in 
 
 Supreme Court of the United States has 
 original jurisdiction in the case of suits by 
 a foreign State against one of the members 
 of the Union, See Chisholm v. State of 
 
 Georgia, 2 Dallas, 418. See eAsoExparte 
 Madrazzo, 7 Peters, 627; antt, 17, note. 
 
 1 See ante, p. 87. 
 
 2 Ld. Red. 30.
 
 THE queen's attorney- general . 
 
 131 
 
 which the Queen is in actual possession of the property in dispute, 
 or Avhere any title is vested in her which the suit seeks to divest, a 
 bill will not in general lie, but the party claiming must apply for 
 relief to the Queen herself by Petition of Right.^ 
 
 A Petition of Right to the Queen is a document in which the 
 petitioner sets out his right, legal or equitable, to that which is 
 demanded by him, and prays the Queen to do him right and justice, 
 and, upon a due and la^vftll trial of his right and title, to make him 
 restitution. The proceeding by Petition of Right exists only for 
 the purpose of reconciling the dignity of the Crown and the rights 
 of the subject, and to protect the latter against any injury arising 
 from the acts of the former ; but it is no part of its object to enlarge 
 or alter those rights.^ 
 
 The law relating to Petitions of Rights, and the procedure 
 therein, is amended and simplilied by a recent Act of Parliament : ^ 
 the object of M'hich is, to assimilate the proceedings, as nearly as 
 may be, to the practice in actions and suits between subject and 
 subject, and to provide for the recovery,^ of costs. This statute 
 enacts, tliat a Petition of Right may be intituled in any one of the 
 superior Courts of Common Law or Equity at Westminster, in 
 which the subject-matter, or any material pai't thereof, would have 
 been cognizable between subject and subject ; and shall state the 
 Christian and surname, and usual place of abode, of the suppliant, 
 and of his attorney, if any, and set forth, with convenient certainty, 
 the facts entitling him to rehef ; be signed by him, his counsel, or 
 attorney; and be then left with the Home Secretary for her 
 Majesty's fiat that right be done.^ 
 
 The Act and the General Order issued in pui-suance thei-eof,^ 
 also provide, that ujion such fiat being obtained to a Petition of 
 Right in Clumcery, the petition and fiat, together witli a printed 
 copy thereof, where it is in writing, shall be filed at the Record 
 and Writ Clerk's Office, and be marked with the name of the 
 Judge before whom it is intended to be prosecuted ; » tliat printed 
 eo])ies for service shall be sealed in tlie same manner as hills ; ' that 
 interrogatories may be fili-d and marked, and served with the 
 petition, for the cxainlnation of the resjiondents, other than the 
 
 Ch. IV. § 2. 
 
 If they are 
 directly in 
 question, 
 application 
 must be by 
 petition of 
 right. 
 Form and 
 object of 
 petition : 
 
 Practice on 
 petitions of 
 right in 
 Chancery, 
 now regulat- 
 ed by 23 & 24 
 Vic. c. 34; 
 
 and by Gen- 
 eral Order. 
 
 1 Reeve v. Attorney-General, 2 Atk. 
 223, cited 1 Yen. S. 440"; Ld Red. 31, 102; 
 Ryes V. Duke of Wellington, 9 Hi-av. 67!l, 
 600; .see also Felkin v. l^ord Ilerl)ert, 1 
 I>r & S. «0h; K .lur. N. S. 'JO; Story Kcj. 
 PI. § <)9. Mr .fustice Story, in a note to 
 thi.SHection in his lv|uily Pleading, remarks 
 that, " In Amcrii !i no .such general rem- 
 edy by petition ot riglit exists against the 
 Government, or, if it e.xists at all, it is a 
 privilege create<l l)y Statute in a few States 
 only. In cases where the (Jovernnient has 
 an interest in the subject as a matter of 
 
 public trust, it is presumed, that the At- 
 torney-( Jeneral may be made a defendant, 
 as he may be in Kngl.ind " 
 
 2 Per Lord Cottenham, in Monckton v. 
 Attorney-General, 2 M'N. & G. 412. 
 
 " 2:i \- 24 Vie. c. 34. 
 
 ■• /hid §§ 1, 2. For form of petition, 
 sec ih. Sclud. No 1; and Vol. 111. 
 
 6 Ord. 1 Feb., 1802; 7 .lur. N. S. Pt. 2, 
 283. 
 
 Ord. rr. 1, 2. 
 
 7 Ord. r. 3.
 
 U: 
 
 TEnSONS AGAINST WHO.M A SUIT MAY BE INSTITUTED. 
 
 Cii. IV. 5 2. 
 
 Right of 
 suppliant to 
 proceed 
 under former 
 practice, 
 reserved. 
 
 Former 
 practice. 
 
 Attonu'v-CiemTMl ; ' tli:i( ;i copy ol" llic petition and liat shall bo 
 U't't at tlu' Ottice of tlir Soru'itor to tlio Treasury, with an indorse- 
 nu'Ut thereon, ])rayin_t;- for a ])k'a or answer on hehalf of her Majesty 
 within twenty-eight (hiys;- that a eojjy of tlie ])etition, allowance, 
 and tiat shall be served u])on, or left at the last or usual or last 
 known place of abode of tlie person in the enjoyment of the pro])- 
 erty or right, indorsed witli a notice, requiring- him to aj)))ear 
 witliin eight days, and to ])lead or answer within fourteen days, 
 alter service ; that sucli ])erson, if he intends to contest the petition, 
 must enter an aj)pearance to the same ; ^ that further time to plead 
 or answer, or to demur, may be allowed by the Court or a Judge ; * 
 that in default of plea, answer, or demiuTer in due time, the Court 
 or Juilge may, on the a])i)lication of the suj»|)liant, order the petition 
 to be taken as confessed ; ^ that a decree may be made thereupon, 
 or ujjon demurrer, or after hearing ; ® that costs may be recoverable 
 by or against the Crown, the suppliant, and any other jiarties to 
 the proceedings ;"' that the Judge shall, on the a])plication of the 
 su])})liant, certify to the Lords of the Treasury, or to tlie Treasurer 
 of the Household, any decree entitling the suppliant to relief, and 
 they may thereupon satisfy him the same ; * that persons may sue 
 and defend in fortna pauperis ^"^ and generally, that the ])ractice 
 and coiu-se of proceeding in reference to suits shall be a})j)licable 
 to Petitions of Right : which in this respect are to be considered 
 as bills ; ^° but the Act is not to prevent any supi)liant proceeding 
 as before the passing thereof." 
 
 According to the practice before the jjassing of the Act, the 
 petition Avas to be determined in Chancery, and the method was 
 this : the petition was presented to the Queen, who subscribed it 
 Avith these words, " soi droit fait al partie : L e., let right be done 
 to the party ; and thereupon it was delivered to the Chancellor, 
 in forma juris exequend : i.e., to be executed according to law; 
 and directions were given that the Attorney-General should be 
 made a paity to the suit ; ^^ upon the petition, however, the Court 
 would neither adjudicate upon the merits, nor inquire into the 
 facts. The whole duty of the Court, at that stage of the proceed- 
 ings, was to ])ermit the party to pursue the usual course of prose- 
 cuting his suit, and for that pur])ose a commission was directed to 
 
 1 Ord. r. 4. For form of interrogatories, 
 "see Vol. III. 
 
 ■■i Act, §§ 3-5. For forms of indorse- 
 ment, see i6., ScheU. Nos. 2, 3; and Vol. 
 III. 
 
 3 For form of appearance, see the Act, 
 Sched. No. 4; and Vol. III. No time is 
 limited lor tlie eutry of an appearance on 
 behalf of the (^ueen 
 
 ■» Act. §§ 4, 5. For forms of pleas, an- 
 swers, an'i demurrers, see Vol. III. 
 
 6 Act, § 8. 
 
 6 Act, §§ 8, 9. 
 
 7 Ibid. §§11, 12. 
 
 8 Jbid. §§ 13, 14. For form of certifi- 
 cate, see ib. Sched. No. 5; and Vol. III. 
 
 '•* Ord. rr. 5, U. 
 
 10 Act, § 7; Ord. r. 7; by r 8, the officers 
 of the Court are to perform similar duties, 
 and the fees and allowances are to be tlie 
 same, as in suitn between subjects. 
 
 11 Act, § 18. 
 
 I'^i Coop. Eq. I'l. 23; Ld. Ked. 31 ; and see 
 Anstey on Petitions of Kight.
 
 THE queen's attorney-general. 
 
 133 
 
 issue, to inquire into the allegations of the petition. The order for 
 the comnii.ssion could not, however, be obtained without direct 
 apphcation to the Court, and notice to the Attorney-General.^ 
 
 The case of Viscount Canterbury v. The Attorney- General^- was 
 a Petition of Right, in which the petitioner, Viscount Canterbury, 
 claimed compensation from the Crown for damage alleged to have 
 been done in the preceding reign, to some property of the petition- 
 er, while Speaker of the House of Commons, by the fire which, in 
 the year 1834, destroyed the two Houses of Parliament. To this 
 petition, a general demm-rer was filed by the Attorney-General, 
 and was allowed by Lord Lyndhurst : from whose judgment it 
 would appear, that the Petition of Right is the remedy which the 
 subject has for an illegal seizure on the part of the Crown, of lands 
 or goods ; but that there is no such form of proceeding applicable 
 to a case which, as between subject and subject, would be a claim 
 for unlupudated damages.^ 
 
 Although, in general, a bill cannot be filed against the Attorney- 
 General for the purjDOse of enforcing equitable rights against the 
 direct interests of the Crown, yet, in certain cases, bills were enter- 
 tained on the Equity side of the Court of Exchequer, as a Court of 
 Revenue, against the Attoi-ncy-General, as representing the Queen, 
 for the purpose of establishing claims agiunst the estates or rev- 
 enues of the Crown, which, in the Court of Chancery or other 
 Courts, could not have been instituted Avithout proceeding in the 
 first instance by Petition of Right.* Tliere is another class of suits 
 against the Attorney-General, which Avere frequently instituted on 
 the Equity side of the Court of Exchequer, as a Court of Revenue ; 
 Viz., suits for the pui7)0se of relieving accountants to the Crown 
 against the decisions of the Commissioners for auditing the Public 
 Accounts, under the 25 Geo. III. c. 52. It was decided, before 
 the abolition of the equitable jurisdiction of the Court of Ex- 
 chequer,'' lliat when )iiil)lic accountants had reason to be dis- 
 satisficfl willi the dcli'iiiiiii.ilioii of such Commissioners, either in 
 disallowing their articles of <liscliaige or in im])osing surcharges, 
 they might proceecl on the Etpiity side of the Exchecpier, against 
 the Attorney-General, and not against the Commissioners; and 
 that the proper mode of ])roceeding in such cases was by bill only, 
 and not by motion or petition." It was also held, th;it the statutes 
 
 Cn. IV. § 2. 
 
 Petition of 
 right not 
 applicable, 
 where the 
 claim, if be- 
 tween subject 
 and subject, 
 would be for 
 unliquidated 
 damages. 
 
 Attorney- 
 General 
 might be sued 
 in certain 
 cases in the 
 Equit}" 
 Exchequer, 
 although the 
 Crown was 
 directly 
 interested. 
 
 So he might 
 be a defend- 
 ant in suits by 
 accountants 
 to the Crown ; 
 
 who proceed- 
 ed by a bill : 
 not by a 
 motion or 
 petition; 
 
 and might do 
 so, even 
 during the 
 
 1 Re Kobson, 2 I'liii. 84. 
 
 2 1 IMiil. :5i)0, .3'24. 
 
 ' In addition to the cases al)ove refcrrrd 
 to, tile following iire some of the reccnily 
 reportcfl casfs of I'ftitions of Hight: lie. 
 Baron de Bode, and Re, Viscount (Canter- 
 bury, 2 I'hII. fi.'.; 1 C. I'. Coop. t. Cott. 
 143, wlii-re the ])ractice was fully consid- 
 ered bv Lord Cotti'idiam : lU Caii \'on 
 Fruntzru", 2 De G. & ,1. V'J\\ Hv K.pit, 4 
 De G. & .1. 44; lU liolincs, 2 .1. & II. Wf, ; 
 
 8 Jur. N. S. 76; Tobin v. Tlie Queen, 16 
 C. 1$. N. S. .310, 315; 10 Jur. N. S. 103'J. 
 
 ^ Lulhwidi V. Attorni'V-'uMierul. refer- 
 red to in Heeve r. Attorney-! Jeneral, 2 
 Alk. 223: Casl)erd v. Attoniey-(ieneral, 
 6 I'ri. 411; and see 6 Vic. c. 6, anlv, p. 6. 
 
 C \\\ !> Vic. c. 5, ante, p. 6. 
 
 " Ciilebrooke, v. Atloniey-flenend, 7 
 I'ri. 14f!; Crawford r. Attornev-<i(Mienil, 
 ilj. 1 ; /•../• /I'liie (;olel)rooke, 7 I'ri. b7 ; hx 
 /I'irli: JHirrand, 3 Anst. 743.
 
 134 
 
 PERSONS AGAINST WHOM A SUIT MAY BE INSTITUTED. 
 
 Cii. IV. §-2. 
 
 pa^sini; ot 
 
 tlu'ir 
 
 nocounts. 
 
 Tliis jurisdic- 
 tion may now 
 be oxiTcised 
 by tlio Court 
 of Chancery. 
 
 In such suits, 
 tlie Attorney- 
 General is not 
 protected 
 from discov- 
 erv', if plain- 
 tifr entitled 
 to relief; 
 
 ]n\n'i(liiig tor \hv rrlid'of accouiitaiits to tlic Crown avcm'c not con- 
 iiiu'd to cases wIumv llio ;u't'ountaiit liad actually l)ocn sued or 
 iin])i'(lod; but that ho mii>ht procoed iinuiodiutt'ly, I'veii (hiriuii; tlie 
 ])assiiig of his accounts, by bill in Equity, as it were (juia timet} 
 There seems no reason to (h)nbt, that accountants to the C^rown 
 are now entitled to tlte same relief; and it also a])|)ears, that the 
 jurisdiction in all the above cases is still retained by the Court of 
 ExcluHiuer ; - but that the Conrt of Chancery has concurrent 
 jurisdietion.^ 
 
 It is to be observed, that where an accountant to the Crown 
 seeks relief by means of a bill against the Attorney-General, the 
 Attorney-General cannot, if the accountant is entitled to relief, 
 ])rotect liimself by demurrer from making the discovery sought by 
 the bill ; and in the case of Deare v. The Attorney- General^ such 
 a demurrer was overruled.^ In that case, the Attorney-General 
 had filed an information, in the Court of Exchequer, against an 
 army agent, for an account of his dealings with the War-office ; 
 upon which the defendant filed a cross-bill against the Attorney- 
 General and the Secretary-at-War, alleging that certain trans- 
 actions had taken place between him and the War-office which 
 amounted to a settlement of accounts, and praying a quietus. To 
 this bill the Attorney-General and Secretary-at-War put in general 
 demurrers : alleging, as the cause of demurrer, that it appeared by 
 the bill that they were sued as oftlcers of his Majesty's govern- 
 ment, acting for and on behalf of his Majesty, and concerning 
 matters arising out of and within their duty and employment as 
 such i)ublic officers, and not in any manner in their j)rivate char- 
 acter as individuals. On the argument of the demurrer, it was 
 alleged on the part of the Attorney-General, that the plaintilf in 
 the cross-bill was not entitled to the relief he prayed ; and it was 
 strongly urged that, not being entitled to the relief, he was not 
 entitled to the discovery ; but Lord Abinger L. C. B. held, that, 
 although the plaintiif w^as not entitled to the specific relief prayed, 
 yet that, inasmuch as taking the facts stated in the bill to be true, 
 they amounted to a clear defence to the information exhibited 
 against him by the Attorney-General, he was entitled to this sort 
 of relief; namely, to have the benefit of the discovery, for the 
 purpose of adducing those facts before the Court in a specific and 
 distinct form, when both the causes should come on together. 
 His Lordship further said, he was not prepared to say that a bill 
 of discovery ever had or ever could be filed against the Attorney- 
 
 1 Colebrooke v. Attorney- General, ubi 
 mp. 
 
 2 Attorney-General v. Hailing, 15 M. & 
 W. 6S7, 700; Attorney-General v. Hullett, 
 ib. 97 ; 8 Beav. 288, n ; Attorney-General 
 V. Kingston, 6 Jur. 155, Ex. 
 
 3 Attorney-General v. The Corporation 
 of London, 8 i5eav. 270, 285 ; 1 H. L. Ca. 
 440, and see a7>,te, p. 5. 
 
 4 1 y. & C. Ex 197, 207.
 
 THE queen's attorney-general. 
 
 135 
 
 General, for a discovery of foots that could be neither in his per- 
 sonal nor in his official knowledge, or that the Crown would be 
 bound, through the medium of the Attorney-General, to make 
 that discovery ; but, at the same time, it had been the practice, 
 which he hoped never would be discontinued, for the officers of the 
 Crown to throw no difficulty in the way of any proceeding for the 
 purpose of bringing matters befoi-e a Court of justice, where any 
 real point that required judicial decision had occurred. 
 
 In cases in which tlie rights of the CroAvn are not immediately 
 concerned, that is, where the Crown is not in possession, or a title 
 vested in it is not sought to be impeached, but its rights ai'e only 
 incidentally involved in the suit, it is the practice to make the 
 Queen's Attorney-General a party in respect of those rights.^ 
 Indeed, it seems that in all cases of this description, in which any 
 right appears to be in the Crown, or the interest of the Crown 
 may be in any way affijcted, the Court mil refuse to proceed 
 without the Attorney-General,- unless it is clear the result will be 
 for the bene^t of the Crown,^ or at least that it will not be in dis- 
 affirmance or derogation of its interests.^ 
 
 Thus, in Balch v. Wastall^ and in Ilayward v. Fry,^ where, in 
 consequence of the outlawry of the defendants, it was held that 
 all the defendants' interest was forfeited to the Crown, the Court 
 directed the plaintiff to obtain a grant of it from the Exchequer, 
 
 Ch. IV. §2. 
 
 Where rights 
 of Cl•o\^^l are 
 only incident- 
 ally involved, 
 the Attorney- 
 General must 
 be a party ; 
 
 and Court 
 will not pro- 
 ceed without 
 him; 
 
 as where 
 defendant is 
 an outlaw ; 
 
 1 Ld. Red. 30, 31. In a suit pending in 
 the Supreme Court of the United States, 
 relative to disputed boundary between two 
 States, a motion made by the Attorney- 
 General on behalf of the United States, 
 before a replication had been filed, for 
 leave to intervene, not technically as a 
 party to the suit, was allowed, and leave 
 was given him, without becoming a party 
 to the suit, to file testimony and be heard 
 on the argument, but not to interfere with 
 the ple-tdings or evidence on behalf of 
 either of the States. Florida v. (jeorgia, 
 17 How. U. S. 478. This course of pro- 
 cedure was admitted to be at variance 
 with the Fjigliwh practice in cases where 
 the (joveniment hiivo an interest in the 
 issue of the suit, but it was adojited to 
 obviate an objection, that seemed to arise, 
 that the I'nited States could not, under 
 the provisions of the (Vmstitution, Ijecomc 
 
 fmrties in the United States Courts, in the 
 egal sense of tlie term, to a suit between 
 two States. The other State" were held 
 to be concernccl in the a<liiistment of the 
 boundarj- in dispute, and their interests 
 are represented by the United .States. 
 Timey < ". J. said: "It would hardly- be- 
 come" this tribunal, intrusted with juris- 
 diction wlii're sovereignties are concerned, 
 and with power to prescribe its own mode 
 of proceedJnu', to do injustice rather than 
 depart from Knglish precedents. A suit 
 in a Court of ju'^tice l)etween such pai tics. 
 
 and upon such a question, is without ex- 
 ample in the jurisprudence of any other 
 country. It is a new case and requires 
 new modes of proceeding. And if, as has 
 been urged in argument,, the United States 
 cannot, under the Constitution, become a 
 party to this suit, in the legal sense of that 
 term, and the English mode of proceeding 
 in analogous cases is therefore imprncti- 
 cable, it furnishes a conclusive argument 
 for adopting the mode proposed. For 
 otherwise there must be a failure of jus- 
 tice." Several of the .Judges dissented. 
 
 '■i By 5 & 6 Vic. c. 69, § 2, the Attorney- 
 General is to be made a party defendant in 
 all suits under that Act touching any 
 honor, &c., in which the l^ueen may have 
 any estate or interest. As to the necessity 
 of making the Attornev-General a party in 
 the cases of aliens, felons, no heir-at-law, 
 no next of kin, lunatics ami idiots: see 
 ante, Chap. II., § 1; Calvert on I'lirties, 
 388, it siq. Where next a( kin of lunatic 
 are unknown, [)etiti(in under Trustee Act, 
 lt<.50, should beflerved on Attorney-Gen- 
 eral, and not on Solicitor to the Treasury 
 lie Kourke, 2 De (i., J. & S. 42C. 
 
 8 Ilovenden r. Lord Annesley, 2 Sell. & 
 I.ef. fil8. 
 
 * StatTonl r. I'.arl of Anglesev, II:irdres, 
 181. 
 
 6 1 I'. Wms. 44.5. 
 
 8 lb. 44C; and sec Rc.x v. Fowler, liunb. 
 38.
 
 lr>(> 
 
 PERSONS AGAINST WHOM A SUIT MAY RK INSTITUTED. 
 
 On. IV. $'2. 
 
 or suit n'latos 
 to bouiuliirios 
 of jmniiu'cs 
 ill ft colony ; 
 
 or parties 
 claim iiiuler 
 ilistiiK't 
 p-ants t'roin 
 the Crown, 
 n'servin;; dif- 
 ferent rents. 
 
 Wlicrc a title 
 in the Crown 
 a]ipears upon 
 tlie record, 
 tliough no 
 claim is 
 made. 
 
 Where the 
 Sovereign is 
 concerned as 
 protector of 
 the rights of 
 others : 
 
 niul {o iniikt' tlio Attoinov-lTi'iioral ;v ]>:\rtv to tlu^ suit. In 
 liitnytss V. W/H'(f(i\^ Lord Ilaidwioko dirt'otod the case to stand 
 over, in order that the Attorney-General might be made a party ; 
 and in Pcnn v. Lord Halttniore^^ which was a suit for the execu- 
 tion of articles relating to the hotmdaries of two ])rovinces in 
 America, held inider letters-]>atent from the King, the cause was 
 ordered to stand over for the same purjiose. In like manner, 
 in Jlovenden v. Lord Annesley^^ in which the parties claimed 
 under two distinct grants from the CroAvn, each reserving a rent, 
 but of different amounts, it was held that, inasmuch as the rights 
 of the Crown Avere concerned, the Attorney-General ought to be 
 before the Court.* In Barday v. Mussell,^ Lord Rosslyn dis- 
 missed the bill, because a title aj^peared upon the record for the 
 Crown, although no claim had been made on its behalf; and upon 
 the same princi])le, in Dodder v. Tlie licmh of IHrtghmd^ Lord 
 I^ldon refused to order the dividends of stock purchased by the 
 old Government of Switzerland, which had been received before 
 the filing of the bill, to be paid into Court })y the trustees, on the 
 a])])lication of the new Government, which had not been recog- 
 nized by the Government of this country, until the Attorney- 
 General was made a party to the suit. But although, in cases 
 where a title in the Crown appears uj^on the record, the Court 
 will not make a decree unless the Attorney-General be a jiarty to 
 the suit, yet it seems that the circimistance of its a])pearing by the 
 record that the plaintiff has been convicted of manslaughter, and 
 that a commission of attainder has been issued, will not support a 
 plea for not making the Attorney-General a party : because an 
 inquisition of* attainder is only to inform, and does not entitle the 
 Crown to any right.'' It seems, hoAvever, that in this res])ect an 
 inquisition of attainder differs from a commission to inquire whether 
 a person under whom the plaintiff claims was an alien : the former 
 being only for the sake of informing the Crown, but the latter to 
 entitle.^ 
 
 The necessity of making the Attorney-General a party is not 
 confined to those cases in which the interests of the CroAvn in its 
 own right are concerned, but it extends also to cases in which the 
 Queen is considered as the protector of the rights of others. 
 Thus, as we have seen,^ the grantee of a chose in action from 
 the Crown may either institute jiroceedings in the name of the 
 Attorney-General, ^r in his own name, making the Attorney- 
 General a defendant to the suit ; and so, in suits in which the 
 
 1 1 Eden. 177, l&l. 
 
 2 1 Ves. S. 444. 
 
 3 2 Sch. & Lef. 607. 
 < Ih. 617. 
 
 6 3 Ves. 424, 4-36. 
 
 C 10 Ves. .352, 3-54. 
 
 7 Kurke v. IJrown, 2 Atk. 399. 
 
 8 Ibid. 
 
 9 Antt^i p. 7.
 
 THE QUEEN S ATTORNEY-GENERAL. 
 
 137 
 
 Crown may be interested in its character of protector of the rights 
 of others, the Attorney-General should be made a party. Thus, 
 the Attorney-General is a necessary party to all suits where the 
 subject-matter is, either wholly or in part, money appropriated for 
 general charitable purposes : because the Queen, as parens jpatrice., 
 is supposed to superintend the administration of all charities, and 
 acts in this behalf by her Attorney-General.^ Where, howevei-, 
 a legacy is given to a charity already established, as where it is 
 given to the trustees of a particular foundation, or to the treasurer 
 or other officer of some charitable institution, to become a part of 
 the general funds of such foundation or institution, the Attorney- 
 General need not be a party, because he can have no interference 
 with the distribution of their general funds.'^ And it seems that 
 there is a distinction where trustees of the charity are ap- 
 pointed by the donor, and where no trustees are appointed, but 
 there is a devise immediately to charitable uses ; in the latter case, 
 there can be no decree unless the Attorney-General be made a 
 party, but it is otherwise where trustees are appointed by the 
 donor.^ Therefore where a bill was filed to establish a will, and 
 to perform several trusts, some of them relating to charities in 
 which some of the trustees were plaintiffs, and other trustees and 
 several of the cestui que tmsts were defendants, an objection, be- 
 cause the Attorney-General was not made a defendant, was over- 
 ruled : it being considered that some of the trustees of the charity* 
 bedng defendants, there might be a decree to compel the execution 
 of trusts relating to these charities.^ In that case, it was said 
 by Lord Macclesfield, that if there should be any collusion between 
 the parties relating to the charity, the Attorney-General might, 
 notwithstanding a decree, bring an information to establish the 
 charity and set aside the decree, and that he miglit do the same, 
 though he were made a defendant, in case of collusion between the 
 parties. But it seems that the mere circimistance of the Attoraey- 
 General not having been made a party to the proceeding, will not 
 })e a sufficient ground to sustain an information for the ])urj)Ose of 
 setting asifle a <lecree made in a former suit, unless the decree is 
 impeached tipon otlicr grounds.® 
 
 1 "The duty of mniiitaiiiiiif; tin' rifjlits 
 of the |)iil)lic, Jinil of a iiuiiilicr of person* 
 too in()efiniff to vindicate tlieir own, has 
 veoted in the Conunonweahli, and Ih exer- 
 cised in Ma^sachu.-etls. n» in Knffland, 
 throiiKli the Attornev-'JeiierHl. (Joinf; c. 
 Enierv, 16 Hiel<. ] 19;' f'ounlv Attorney r. 
 May/SCii.Hh. 3.!K-840: (;eol. St.s.c. 14. §20. 
 It in upon lhi-< Rfonnd. that, in a suit iii-ti- 
 tuted by the trus'ees of a elinrity ttiolitain 
 the instru'-tion- of the Court, theAltorney- 
 Genernl should be made a partv defeiidnnt, 
 an he hiiH been bv order of the Court in 
 this case." Gray .J. inJacksion tv I'tidlips, 
 
 Cn. IT. § 2. 
 
 ^ ^ ■ 
 
 as where the 
 subject- 
 matter is 
 appropriated 
 to charity ; 
 
 unless charity 
 
 already 
 
 established. 
 
 Distinction, 
 in jiitts to a 
 charity, 
 where a trus- 
 tee appointed, 
 and where 
 not so. 
 
 14 Allen, 539.579, SJ'O; see Harvard Col- 
 lege r. .Society for I'roinoting Theological 
 Kd Meat ion, 3 Grav, 2f<0. 
 
 2 Wellbelovedc .Jones, 1 S. & S. 40, 
 43; Cliiltv V. I'flrker, 4 Bro. C. C. 38. 
 
 3 4Vin."500. V\. 11, niUis; 2 Eq. Ca. Ab. 
 1C7, pi. 13, n. 
 
 * It a[)peiirs from a subsequent part of 
 the ("1*^0 that one of tlie trustees of tlie 
 charity wiis (ibroad. 
 
 fi Moiiil r. Lawson. 4 Vin. 500, pi. 11; 2 
 Efi. Cn. .Ab. 107. pi 13. 
 
 •* Attornev-Uetierai v. Wurren,2 Swanst. 
 291,311.
 
 138 
 
 PERSONS AGAINST WHOM A SUIT MAY BE INSTITUTED. 
 
 Cn. IV. 5 : 
 
 "Wtere given 
 to trustees of 
 an existing 
 charity, but 
 on definite 
 trusts. 
 
 Where pri- 
 vate charity 
 concerned. 
 
 AVlion it is said that, in cases Avhore a legacy is given to the 
 trustees of" a charity ahvady in existence, for tlie general purposes 
 of the charity, it will not be necessary, in a suit concerning it, to 
 make the Attorney-General a defendant, the rule must be under- 
 stood to a]))dy only to those charities whicit are of a ])ermanent 
 nature, and whose objects are defined ; for it has been determined, 
 that where legacies are given to the officers of a charitable insti- 
 tutiou which is not of a permanent nature, or whose objects are 
 not defined, it is necessary to make the Attorney-C4enei'al a party 
 to a suit relating to them. Thus, in the case of Well/Beloved v. 
 Jones,^ where a legacy was given to the officers, for the time 
 being, of an academical institution, established at York for the 
 education of dissenting ministers, which officers, with the addition 
 of such other persons as they should choose (in case they should 
 think an additional number of trustees necessary), Avere to stand 
 possessed of the money, upon trust, to apply the interest and divi- 
 dends for the augmentation of the salaries of dissenting ministers, 
 a preference being given to those who should have been students 
 in the York institution, and in case such institution should cease, 
 then upon trust that the persons in whose names the fund should 
 be invested, should transfer the same to the principal officers for 
 the time being of such other institution as should succeed the same, 
 or be established upon similar principles : Sir John Leach V. C. 
 upon a bill filed by the officers of the institution, jjraying to have 
 the fund transferred to them, to which the Attorney-General was 
 no party, ordered the case to stand over, with leave to amend by 
 making the Attorney-General a party : his Honor observing, that 
 the Court could never ))ermit the legacy to come into the hands of 
 the plaintiffs, who hapi)ened to fill particular offices in the society, 
 but would take care to secure the objects of the testator by the 
 creation of a proper and permanent trust, and upon hearing the 
 cause, would send it to the Master for that ])urpose ; and that it 
 Avould be one of the duties of the Attorney-General to attend the 
 Master upon the subject. And even in cases where a legacy is 
 given to the trustees of a charity already in existence, the trusts of 
 which are of a permanent and definite nature, unless it appears, 
 from the terms of the bequest, that the,trusts upon which the legacy 
 is given are identical with those upon which the general funds of 
 the corporation are held, it is necessary to make the Attorney- 
 General a party .^ 
 
 It is to be observed also, that the Attorney-General is a necessary 
 
 1 1 S. & S. 40, 43. 
 
 2 Corporation of tlie Sons of tlie Clergy 
 V. Mose, 9 Sim. 610, 01.3. A \>\\\ in p:quity 
 for the transfer of a public cliurity to new 
 trustees maj' be filed by the present 
 trustees in their owu names, making the 
 
 Attorney-General a defendant. Harvard 
 College V- Society for I'ronioting Theolog- 
 ical Education, 3 Gra}% 280; Governors 
 of Christ's Hospital v. Attorney-General, 
 5 Hare, 257 ; see Jackson v. Phillips, 14 
 Allen, &39.
 
 THE QUEEN S ATTORNEY-GENERAL. 
 
 139 
 
 Answer of the 
 Attorney- 
 General, 
 general form 
 under late 
 practice. 
 
 party only where the charity is in the nature of a general charity ; Cn. IV. § 2, 
 and that where it is merely a private charity, it will not be neces- 
 sary to hriiig him before the Court. Thus, where the suit related 
 to a voluntary society, entered into for the purpose of providing a 
 weekly payment to such of the members as should become neces- 
 sitous, and their widows. Lord HardAvicke overruled the objection 
 that the Attoniey-General was not a party : because it was in the 
 nature only of a private charity.^ 
 
 When the Attorney-General is made a defendant to a suit, it 
 is entirely in his discretion whether he will put in a full answer or 
 not.^ Fomierly, the usual course was for him to put in a general 
 answer, stating merely that he was a stranger to the matters in 
 question, and that, on behalf of the Crown, he claimed such rights 
 and interests as it should appear to have therein, and prayed that 
 the Com-t would take care of such rights and interests of the 
 Crown in the same.^ In cases, however, in which the interest of 
 the Crown, or the purposes of i)ul)lic justice require it, a full answer 
 will be put in:* as in Craufurd v. The Attorney- Geneixd,^ in 
 which case the Lords of the Treasury had directed that the ques- 
 tion might be brought before the consideration of a Court of 
 Justice ; and it would, therefore, have been unbecoming in the 
 Attorney-General to urge any matter of form which might prevent 
 the case from being properly submitted to the Court before which 
 it was brought.^ In Errington v. The Attorney- General^ the 
 Attorney-General, being one of the defendants to a bill of inter- 
 pleader, ]iut in the usual general answer, ujion which the other 
 defendants moved that the bill might be dismissed, and the injunc- 
 tion dissolved ; the Attorney-General opposed the motion, and at 
 the same time prayed that he might be at liberty to withdraw his 
 gcjieral answer, and put in another, insisting upon the particular 
 riglit of the Crown to the money in question: which was granted. 
 
 The answer of the Attorney-General is put in without oatli, but 
 is usually signed by him. And it seems that such an answer is not 
 liable to be excejtted to, even though it be to a cross-bill filed by 
 the defendant in an information, for the ]iu)-]»ose of obtaining a 
 discovery of matters alleged to be material to his defence to the 
 infoiTTiation. We liave, however, seen before that where a cross- 
 bill is tiled Mgaiiist tlie Attorney-General, pra}dng relief as well as 
 discovery, lie canufjt jirotcct liiinself from answering by means of a 
 demurrer:" but Avlietlier he could, l»y such means, 2»rotect himself 
 
 Answer of 
 Attnrne}-- 
 (Jeneralisput 
 in without 
 oath, and 
 cannot be 
 excepted to. 
 
 1 Anon.. 3 Atk. '277. 
 
 2 Davi.Hon v. Attorney-General, 6 Pri. 
 398. n. 
 
 8 Sec Uiinb. 303; 1 Hare, 223. 
 * C'olebrooke r. Attorney-General, 7 Pri. 
 192. 
 
 6 7 Pri. 1. 
 
 c Sec also Deare v. Attorney-General, 1 
 Y. & G. Kx. I!i7. 
 
 7 Huiil). 303. 
 
 <* Deare v. Attorney-General, uhi sup. ; 
 tmley p. 134.
 
 110 
 
 TEIISONS AGAINST UllOM A SUIT MAY BE INSTITUTED. 
 
 Cm. IV.§_'. 
 
 Present 
 practice. 
 
 His right to 
 costs. 
 
 Solicitor- 
 General made 
 defendant 
 during 
 vacancy in 
 
 ■ office of At- 
 toniey-Gen- 
 eral, and in 
 informations 
 by the latter 
 at variance 
 ■with interests 
 
 ' of pubUc char- 
 ity, or of the 
 Crown. 
 
 trom :iiis\vi'rin<:; :i mere l)ill of discovci-y, doi's nol ;ii>|)(';ir to liavo 
 Ihh'ii tU'cidi'd ; it is most ])i-(il»;il)k> tli:it he miii'lit, mikI tlint tlio 
 Court would, in sucli ;i CMse, it" discovery were wanted from the 
 Crown, leave the ])arty to ])reier his Petition of JJinht.^ 
 
 Under the ])resent ])raotice, the usual course is Ibr tlie Attorney- 
 General to ]>nt in no answer; hut in Cases of the description above 
 mentiont'd, it is ])i-esumed that the ])ro]ier course is to file interrog- 
 atories for his examination, and tliat lu' would then ])ut in a fidl 
 answer. 
 
 The right of the Attorney-General to receive his costs, where he 
 is made a defendant to a suit, has been before noticed ; ^ it will 
 suffice, therefore, here to repeat, that there seems to be no rule 
 against the Attorney-General receiving his costs, where he is made 
 a defen(hint in respect of legacies given to charities ; and that in 
 Mo(j(jridge v. Thachwell^ costs were given to all parties, including 
 the Attorney-General, as between solicitor and client, out of the 
 fund in Court. It appears also that he fi-equently receives his 
 costs where he is made a defendant in respect of the rights of the 
 Crown, in cases of intestacy.* There is no invariable ]>ractice of 
 giving him his costs in all cases out of the fund, the subject-matter 
 of the suit.^ 
 
 During the vacancy of the ofiice of Attorney-General, the So- 
 licitor-General may be made a defendant to su])]>ort the interests 
 of the Crown ; ® and. where there has been an information by the 
 Attorney-General, the object of which has been to set up a general 
 claim on l)ehalf of the Crown, at variance with the interests of a 
 public charity, the Solicitor-General has been made defendant, for 
 the purpose of sujjporting the interests of such charity against the 
 general claim of the Attorney-General. On the other hand, where 
 an information was filed by the Attorney-General, claiming certain 
 pro))erty for charitable imrposes, inconsistent with the lights of 
 pro])erty of the Crown, the Solicitor-Genei'al was made a defendant, 
 as the officer on whom the representation of such rights had de- 
 volved.'' 
 
 The means of obtaining the a])pearance or answer of the 
 Attorney-General, will be found in the su])sequent Chapters upon 
 Process.^ 
 
 1 Deare v. Attorney-General, iihi sup. 
 
 2 Ante, p. 12. 
 
 8 7 Ves.'36, 88, affirmed by H. L. ; see 13 
 Ves. 416. 
 
 ■* Attornev-General v. Earl of Ashburn- 
 ham, 1 S. "& S. 397; ante, p. 12; see 
 now 18 & 19 Vic. c. 90, § 1, as to costs of 
 Attorney-General in revenue suits; and 
 24 & 2.5 Vic. c. 92, § 1, in cases as to suc- 
 cession dutv. And see 23 & 24 Vic. c. 34, 
 §§ 11, 12, ante p. 132. 
 
 5 Perkins v. Bradley, 1 Hare, 219, 234. 
 
 6 Ld. Red. 102. 
 
 "! Attorney-General v. Dean and Canons 
 of Win.lsor, 24 Beav. 679; 4 Jur. N. S. 
 818; 1 II. L. Ca. 8G9; 6 .Jur. N. 8. 833; 
 and see Attorney-General v. Mayor of 
 Bristol, 2 J. & VV. 312; Attorney-General 
 V. Ironmongers' Comi)any, 2 M. & K. 
 678, n. 
 
 8 See post, Chap. VIII. § 4; Chap.X. 
 §2.
 
 GOVERNMENTS OF FOREIGN STATES AND AMBASSADORS. 141 
 
 Ch. IV. § 3. 
 Sectiox III. — Governments of Foreign States and Ambassadors. «_ — _- 
 
 It has before been stated, that the Sovereign of a foreign country a foreign 
 reeoQ:nized by this Government, may sue either at Law or in Sovereign, by 
 
 , !• £• T'11 suing here, 
 
 Equity, in respect of matters not partaking of a pohtical char- submitstothe 
 acter ;^ and it has been determined, that if he files a bill, a cross- Jii"sdiction; 
 bill may be filed against him ; because, by suing here, he submits bill may be 
 himself to the jurisdiction of the Court ; and, in such a case, if re- ^]^'^ against 
 quired, he is bound to answer upon oath.-^ ■ 
 
 The question whether a foreign Sovereign, who has not sub- l)ul-e of 
 mitted to the jurisdiction, can be sued in the Courts of this country, y^xtig'^of 
 was raised in the case of the Duke of Brunsicick v. TJie King of Hanover. 
 Sanover? It was an important feature in this case, that the de- 
 fendant, as a subject of this kingdom, had renewed his allegiance 
 after his accession to the thi'one of Hanover, and exercised the 
 rights of an English peer. The general object of the suit Avas to 
 obtain an account of 2>roperty belonging to the plaintifi', alleged to 
 have been possessed by tlie defendant, under color of an instrument 
 creating a species of guardianship unknown to the law of England. 
 None of the acts comj)lained of took place in this country, or were . 
 done by the defendant before he became King of Hanover. More- 
 over, though it Avas not necessary to decide the question, the 
 Court seemed to consider tliat those acts were of a political char- 
 acter. The defendant demurred to the bill ; and in giving judg- 
 ment upon the demurrer, Loi'd Langdale M. R. after elaborately 
 reviewing all the authorities and arguments upon the subject, 
 said : " His Majesty the King of Hanover is, and ought to be, ex- 
 emjjt from all liability of being sued in the Courts of this country, 
 for any acts done by him as King of Hanover, or in his character 
 of sovereign prince; but being a subject of the Queen, lie is and 
 ought to be liable to be sued in the Courts of this country, in re- 
 spect of any acts and transactions done by him, or in which he 
 may have been engaged, as such subject. And in respect of any 
 act done out of the realm, or any act as to which it may be doubt- 
 
 1 Anlt, p. 17. Chelm-ford L. C , and by Lord Cairns 
 
 '^ lluiietti'. King oC Spain, 2 IJligli, N S. L. . I., that the Court may stiiy proceedings 
 
 47; 1 l>ow & CI. 1UI»; S. C. 7 Uligh X. S. in the original suit, until the nienns of 
 
 360. A foreign Sovereign Statu, acting discovery are .secured in the cross-suit, 
 
 under a republican form of ),'ovcriiiii''iit .^ee (Jolumljian Government c. Hothschild, 
 
 and recognized in that capacity, may -ue 1 ."^iin. '.14; I'riolcau c. Tnilcd States of 
 
 in the Kiigli.sh (jourts in its own n.inn' so AmiMica and Amlrcw .lolin-on, \.. H. '2, 
 
 recognized. Such State is not bound to K(|. 05'J; S. C. m>m. United States of 
 
 sue in the name of any odicer of the Gov- America v. I'rioleau, J'i .lur. X. S. 724; 
 
 eminent, or to join us co-|daiiili(l' any United Mates of America v. Uagner, 
 
 such olhcer on whom proce-s may be L. li. 3 Kij. 724. 
 
 served, and who miiy be called uiioii to ^ Beav. 1; aUirmed 2 H. I>. Ca. 1; 
 
 give disewvery upon ii cros.s-bill. (Jnited and see Wadswortli v. (JU' en ol >pain, 
 
 States of Aiiii-rica /'. Wagner, 1^. K. 2 ('h. 17 <^ IS. 171 ; (ilad^tono r. .Musurua iiey, 
 
 Ap. &b2. but it was held by Lord 1 11. & M. 4'J5; y Jur. N. S. 71.
 
 142 
 
 PERSONS AGAINST WHOM A SUIT MAY BE INSTITUTED. 
 
 Cn. IV. § .1. 
 
 Where 
 foreign State 
 is uitcrcsted 
 in fund about 
 to be distrib- 
 uted. 
 
 Ambassa- 
 dors. 
 
 Where 
 subjects of 
 Sovereign, 
 to whfpin 
 accredited. 
 
 I'ul wIu'IIkt it ouu'lil to lie ;itt filmti'tl to tlu' clinriictor of Sovereign, 
 or to \hv eli:ir:u'ter ol'suhjeet, it :i|>{>eai's to me, that it oiiglit to be 
 l)ivs;imie<l to be .-ittiibuled rather to tlie character of Sovereign, 
 *th:in to thi' character of stxbject."^ Accordingly, as it did not 
 appear that tlie alleged acts and transactions of the defendant wore 
 of siu-h a deserijition as could render him liable to be sued in tliis 
 country, the demurrer was allowed. It further appears fi'om the 
 l;ist-mentioned case, that as n Sovereign i)rince is priind facie en- 
 titleil to special immunities, it ought to a})j)ear on the bill that tlie 
 case is not one to which such special immunities extend.^ 
 
 There have, moreover, been cases m which, the Court being 
 called upon to distribute a fund in which some foreign Sovereign 
 or State may have had an interest, it has been thought ex2)edient 
 and proper to make such Sovereign or State a party. The effect 
 has been to make the suit perfect as to j)arties, but, as to the 
 Sovereign made a defendant, the effect has not been to compel, or 
 attempt to com2)el, him to come in and submit to judgment in the 
 ordinary course, but to give him an op])ortunity to come in and 
 clahn his right, or establish his interest in the subject-matter of 
 the suit.^ 
 
 With regard to Ambassadors, by Stat. 7 Ann, c. 12, all writs 
 and i>rocesses sued forth and j^rosecuted, Avhereby the person of 
 any Ambassador, authorized and received as such by her Majesty, 
 may be arrested or imprisoned, or his goods distrained, seized, or 
 attached, are to be deemed to be utterly null and void. This Act 
 professes to be, and hits fi-equently been adjudged to be, declara- 
 tory,* and in confirmation of the Common Law; and, as Lord 
 Tenterden said,^ " it must be construed according to the Common 
 Law, of Avhich the law of nations must be deemed a part." The 
 5tli section of the Act excepts the case of a bankrupt in the service 
 of any Ambassador.^ 
 
 Cases have frequently occurred in whicli an Ambassador has 
 himself been a subject of the Sovereign to whom he was accred- 
 ited; and, notwithstanding some difference of opinion, it seems 
 to be considered, that such an Ambassador would not enjoy a 
 perfect immunity from legal process, but would enjoy an immu- 
 nity extending only to such things as are connected with his ofH(;e 
 and ministiy, and not to transactions and matters wholly distinct 
 and independent of his office and its duties.'' 
 
 1 6 Beav. 57. 
 
 2 See C Beav. 58. 
 
 8 Jbid. .39. In Gladstone ?;. Musurus 
 Bey, 1 H & M. 495; 9 .Jur. N. S. 71, the 
 Sultan was made a defendant, but did not 
 appear. 
 
 •I 1 B. & C. 562. 
 
 6 See as to this statute, Service v. Casta- 
 
 neda, 2 Coll. 56 ; Taylor v. Best, 14 C. B. 
 487; 18 Jur. 402; see also GiMd.stone v. 
 Musurus Bey, nln snp., in which V. 0. 
 Wood held on this statute, that a foreiffn 
 iinilrissiilor cannot be impleaded before 
 an ICnj^lish tribunal. 
 
 " 6 J5e;iv. 52. As to the ri^l'ts and ex- 
 emptions of Ambassadors, see 1 Kent (11th 
 ed.), 38 etseq. 182.
 
 CORPORATIONS AND JOINT-STOCK COSIPANIES. 143 
 
 Ch. IV. § 4. 
 Section IY. — Corpcn'ations andJoint- Stock Companies. < , ' 
 
 It has been stated before,^ that corporations aggregate must be Conjorations 
 sued by their coi-porate name, that is, by their name of foundation : s^f([*^^y^cor-® 
 thougli it has been said that, if a corporation be known T)y a par- poratename; 
 ticular name, it is sufficient to sue it by that name."^ This, how- 
 ever, must be confined to the case of a corporation by prescription ; 
 for in other cases, where the commencement of it appears by the 
 record, it can have no other name by use than that under which 
 it has been incorporateil, and the Court will not permit it to be 
 sued by any other name.^ 
 
 A corporation aggregate which has a head cannot be sued but not with- 
 without it : because without its head it is incomplete.* It is not, ^^^ ^^® ^'^^'^' 
 however, necessary to mention the name of the head ; ^ nor is it Individual 
 in general proi)er to make individual members of aggregate cor- "'t^nece^sSr^ 
 porations parties by their i)roper Christian and surnames: though parties; 
 cases may occur where this will be j^ermitted, for the purpose of 
 comjjelling a discovery from them of some fact which may rest in unless for 
 their own knowledge. Thus, in the case put by Lord Eldon, in Svei^'^ '^ 
 Dummer v. The Corporation of Chippenham^ of an individual 
 coii)orator whose estate was charged with a rent or payment to a 
 charitable use, of which the corporation had the management, and 
 who had obtained possession of the deed, and had destroyed or 
 cancelled it, his Lordship was of opinion that, upon an information 
 for the jturpose of having the estate of the charity pro])crly ad- 
 ministered by the corporation, it would be perfectly competent to 
 call upon the mayor, if he was the individual implicated in that 
 conduct, not only to answer with the rest under their common 
 seal, but also to answer as to the circumstances relative to the 
 deed supposed to be in his hands. So also, in the principal case, 
 which was that of a bill by a schoolmaster against a corporation 
 who were trustees of a charity, to be relieved against a resolution 
 of the trustees by which he was deprived of his office of school- 
 master, on the ground that the resolution had been pronounced by 
 five of the members of the corporation, from improj)er motives 
 Avitli rcfcivncc to a pai'lianiciitary election, to which bill the five 
 
 1 AnU, p. 21. poration of tlio Fri'ncli Trote-'taiit Ciiureli 
 
 2 Attomey-denernl r. Corporation of liiiviii{; Ikcomk; divid<Ml into sej)arMto 
 Worcenter, 2 I'liil. 3; 1 U. V. Coop. t. cliurclios, :in(l tliuru Ix'in;; no i)ul)iic olli- 
 Cott. 18. cer iit the head of the corporation, tlie 
 
 8 Ibid. A corporation can be called to bill wa« properly tiled apiiiist tlie ^jovern- 
 
 nni-wer only by its corporate name. injf body of the ])articular ihiircii, and 
 
 Biiincy's case, '/ Bland, 09; see n-nU, 21, not ai.'aiiist tlie corporation by its corpo- 
 
 notc. rate name. 
 
 4 2 Rac. Ab. tit. Corp. (E.) I'l. 2. In 6 a Salk. 103; 1 Leon. 307. 
 
 Daugars r. Uivaz, 2H lieav. 2;}3, 249; « « 14 Ves. 245,264. 
 Jur. X. S. b64, it was held, that the cor-
 
 144 PERSONS AGAINST WHOM A SUIT MAY RE INSTITUTED. 
 
 On. IV. §4. iuoiuIkts woro m:uU' ]):irtios, lor (lio ])ur|K)st' of o1)1:iiirmg from 
 
 • Y tlu'iii ail answiT upon oath as to thoir alk'ii;e(l iiiii)roi)or conduct, :i 
 
 (Icniurrcr, w hicli had been put in by those iivc members on tile 
 ground that no titU" was shown to the discovery against them, 
 was overruk'tl by J^ord Ehlon. ^\nd in the case of the Attorney- 
 General V. Wilson,^ a corporate body, suing both us phiintitt' and 
 rehitor, sustained a. suit against tive persons, formerly members of 
 the corporation, in respect of unauthorized acts done by them in 
 the name of the corporation.^ 
 
 It has been thought that, as a corpoi-ation can sue within a for- 
 eign jurisdiction, there is no reason why it may not be sued with- 
 out its jurisdiction, in the same manner, and under the same 
 regulations, as domestic corporations ; ^ and accordingly, in some 
 States, foreign corporations have been held to answer to actions 
 in their Courts.* Corj)orations created by any other State, having 
 property in Massachusetts, shall be liable to be sued, and their 
 property shall be subject to attachment, in like manner as residents 
 of other States having property in that State are liable to be sued 
 and their property to be attached.^ 
 
 ^„ . The practice of making the officers or servants of a corporation 
 
 Officers of i ° .,...,., , . 
 
 corporations parties to a suit, for the purpose of eliciting from them a discovery, 
 
 "arties^bJ-'^the ^^^^^ ^ath, of the matters charged in the bill, has been too fre- 
 purpose of quontly acted upon and acknowledged to be now a matter of 
 iscovery. J^^iijt.o The lirst case which occurs upon the j^oint is an anony- 
 mous one, in Vernon,'^ where a bill having been filed against a 
 
 1 C. & P. 1, 21 ; Angell & Ames, Corp. « Day v. Essex County Bank, 13 Vt. 
 
 § 676. 97 ; St. Louis Perpetual Ins. Co. v. Cohen, 
 
 ■•2 There are cases in which a bill in 9 iMissou. 422; Angell & Ames, Corp. 
 
 Equitv will lie iigainst a corporation fur (Gth ed.) § 402-407. 
 
 diverting or misapplying its tund.s or credit, 6 Genl. Sts of Mass. c. 68, § 15; Sillo- 
 
 &c., Iiv one of it>"nH'nihers. Cunlitfe v. way v. Columbian Ins. Co., 8 Gntj', 199; 
 
 Miinchester and Holtoii Canal Co., 1 My. & see Libby v. Hodgdon, 9 N. H. 394; 
 
 K. 131, note; Dodge v. \Volse\', 18 llow. Moulin ». Ins. Co., 4 Zabrisk. 222; Thomas 
 
 U. S. 331; Maiidersun v. Clununercial i'. Merchants' Bank, 9 Paige, 215; Nash 
 
 lik., 28 Peini. 379; Bait. & Ohio K.K. (Jo. v Rector, &c. of the Evangelical Lutheran 
 
 f. City of Wheeling, 13 Gratt. 40; Pea- Church, 1 Miles, 78; Peckliam «. North 
 
 body "f. Flint, Allen, 52; Angell &; Ames, Parish in Haverhill, 16 Pick. 274; Erick- 
 
 Corp (6th ed.) § 391; Salomons v. Laing, son v. Nesinitli, 4 Allen, 237. 
 
 12 Beav. 339; liudges v. Screw Co , 3 R. But in VVilliston v. Mich. Southern and 
 
 1.9; K.R. Co. f. Harris, 27 Miss. 517; pusl, Northern Ind. R.R. Co., 13 Allen, 400, it 
 
 Parties i'> suit; see Her^ey v. V^eazie, J.i was held that no efjuituble reliel can be 
 
 Maine, 9. An individual stockholder may granted in Massachu-ets against a loreign 
 
 maintain a suit in Etiuity against the direc- corporation which has neither oilicers nor 
 
 tors of a corporation for misconduct in place of business in Massachusetts, for a 
 
 oHice. Allen t. Curtis, 26 Conn. 456; lailure to declare and pay dividends 
 
 Schlev V. Dixon, 24 Geo. 273; Kean v. according to the stipulations of their cer- 
 
 John.--"on, 1 Stock. (N. .1.) 4U1; Binney's tilicates of stock. Service of the writ had 
 
 case, 3 Bhind, 142; Revere v. Boston been made in this ease only by trustee 
 
 Copper Co., 15 Pick. 351; Brown v. process, attaching funds in the hands of 
 
 Vaiidvke, 4 Halst. Ch. (N. .J.) 797; see the debtors of the defendants in Massa- 
 
 Durfee v. Old Colony, &c. R.R. Co., 5 chusetts. See Stephenson v. Davis, 66 
 
 Allen, 230; unit, 26, and note. Maine, 73. 
 
 '^ Bushel V. Commonwealth Insurance '' Ld. Red. 188, 189. 
 
 Co., 15 Serg. & R. 176; Angell & Ames, ' 1 Vern. 117; but the answer cannot 
 
 Corp. (6th ed.) § 402. be read against the Corporation: Wych v.
 
 COEPORATIONS AXD JOIXT-STOCK COMPANIES. 
 
 145 
 
 corporation to discover writings, and the defendants answering Ch. IV. § 4. 
 
 under their common seal, and so, not being sworn, would answer " i 
 
 nothing to their prejudice, it was ordered that the clerk of the 
 
 company, and such principal members as the plaintiff should think 
 
 fit, should answer on oath, and that the Master should settle the 
 
 oath. In the case of Glasscott v. Copper Miners' Company^ the 
 
 plaintiff was sued at Law by a body corporate, and filed his bill 
 
 for discovery only : making the governor, deputy-chairman, one of 
 
 the directors, and the secretary of the company co-defendants with 
 
 the company. It was objected, upon demurrer to the bill, that an 
 
 officer of a coi"poration could not be made a co-defendant to a bill 
 
 which sought for discovery only, or, at any rate, that individual 
 
 members could not be joined as defendants with the coi-jjoration 
 
 at large ; but the demurrer was overruled.^ 
 
 It may be observed here, that, where the officer of the corpora- but not if 
 
 tion from whom the discovery is sought is a mere Avitness, and the ^^^^^ "^'^ 
 
 ° ' nesses. 
 
 facts he is requu-ed to discover are merely such as might be proved 
 by him on his examination, he ought not to be made a party. 
 Thus, where an officer of the Bank of England was made a party, 
 for the puqjoso of obtaining from him a discovery as to the times 
 when the stock in question in the cause had been transferred, and 
 
 Meal, 3 P. VVms. 310, 312; Gibbons v. 
 Waterloo Bridge Company, 1 C. P. Coop, 
 t. Cott. 385; NVadeer v. East India Co., 
 29 beav. 300; 7 Jur. N. S. 350. 
 
 1 11 Sim. 305; see M'Intosh v. Great 
 Western Railway Company, 2 De G. & 
 S. 758; Attorney-General r. Mercers' Co., 
 W. K. 83; Attorney -General r. East 
 Oereliam Corn Excliaiif^e, 5 W. U. 4'5<j; 
 llangf-r f. Great Western Railway Co., 4 
 De G. & .J. 74; 5. Jur. N. S. ll'Jl ;' Harvey 
 t;. Beckwitli, 2 II. & M. 429; Pepper v. 
 (Jreen, »Y». 478; see also Moodalev v. 
 Morton, 1 IJro. C. C 409. It sliouid be 
 oliserved here, that Lord Eldon, in 
 Duminer v. The Corporation of Chippen- 
 liani, 14 Ves. 254, mentioned it as his 
 opinion, that tiie ease of Stewar.! v The 
 l',a.st India Company, 2 Vern. SbO, in 
 which a demurrer to u bill against the 
 <omi)any and one of its servants, is re- 
 I>or:eil to have been allnved, i-- a misprint; 
 and that, instead of sttiiing tliut the de- 
 murrer was alhiwed wiihuut, [)Ulting tiiem 
 to an'<wer as to matti:r of fraud and con- 
 trivance, which is nonsense, itsliould have 
 been, that the demurrer was disallowed, 
 with liherty to insist by their an»wer that 
 tliey should not he compelled to answer 
 the charg<-s of fraud. vVic; thit case, how- 
 ever, ap|iear-> to he correctly reported, see 
 MTnto.sli V. fJreat VVestern Railway Com- 
 pany, 2 De (i. & S. 770. 
 
 '^ (JtBcers and nicmhers of a corporation 
 
 may l)e made parties to a bill »o lar as \\w. 
 
 bill seeks for discovery, though they have 
 
 no individual interest in the suit, and no 
 
 vou I. 10 
 
 relief can be had against them. Wright 
 r. Dame, 1 llet. 237; Story Eq. PI. § 235; 
 2 Story Eq. .lur. §§ 1500, 1501 ; Cartwright 
 V. Hateley, 1 Sumner's Ves. 293, n'>tc (1); 
 Hare, 83; Le Texier v. Margrave and 
 Margravine of Anspach, 5 Ves. 322; 
 Fenton v. Hughes, 7 Sumner's Ves. 287, 
 Perkins's note (a); Brundey v. West- 
 chester Co. Manuf. Co., 1 .John. Ch. 3tJ6 ; 
 Vermilyea v. Fulton Bank, 1 Paige, 37; 
 Walker v. IlalieU, 1 Ala. (N. S.) 379; 
 Kennebec and Portland R.R. Co. v. Port- 
 land and Kennebec R.R. Co., 54 Maine, 
 173, 184; see Garr v. Bright, 1 Bar. 
 Ch. 157; 1 Grant Ch. Pr. 28; Masters 
 V. Rossie Galena Lead Mining Co., 3 
 Sandf Ch. 3U1; Mclntyre v. Trustees of 
 Union College, 6 I'aige, 229; Many v. 
 Beekman Iron Co., 9 Paige, 188; Governor 
 & Co. of the Copper Mines, 5 Lond. Jur. 
 264; Bevans ?;. Dingman's Turnpike, 
 10 Barr, 174; McKiin i: Odom, 3 Bland, 
 421; United States of America v. Wagner, 
 L. K. 2 Ch. A|). 587, 688; i'rioleau «. 
 United States of America, L. R. 2 Kq. 
 007, 008. The reason for the relaxation of 
 the general rule, that a mere witness can- 
 not he made d'-fendant in the case of a 
 corporation, is that the answer of a cor- 
 poration is not )iut in under oath, and that 
 lience an answer is recpiired from some 
 person or persons cupuble of nnikinga I'ul! 
 discovery, as the agiMits or the ollicers 
 ol a corporation. Angell & .\mes, Corp. 
 § 070; see Iluwell i'. Arkmore, 1 SlocK. 
 (N. J.) 92.
 
 14fi 
 
 TERSONS AGAINST WHOM A SUIT MAY BE INSTITUTED. 
 
 Cm. IV. U. 
 
 Corjionitiou 
 bound to 
 make tiill 
 answer ; 
 
 and for tliis 
 purpose to 
 cause tlieir 
 muniments 
 and hooks to 
 be searched ; 
 
 Corporations 
 sole defend 
 like jirivate 
 individuals; 
 
 corporations 
 aggregate 
 answer under 
 common seal. 
 
 Proceedings, 
 where person 
 having the 
 common seal 
 refuses to 
 affix it. 
 
 he (loiiuinvtl to the bill, Sir Jolin Loach V. C. allowed the de- 
 miii-ror, on the grotmd that the otKoer was in that case merely a 
 witness.! 
 
 r>iit nlthongh it is not an ninisnal ))ra('tice to nnike the clerk or 
 other ]>rinei})al otheer of a coi'poration a ]>arty to a suit against 
 such corporation, for the purpose of eliciting- from him a discovery 
 of entries or orders in the books of the cor])oration, yet, where 
 such is not the case, it is still the duty of the corporation, Avhen 
 informed by the bill or information of the nature iind extent 
 of the claims made uj)on it, if required to ])ut in an answer, to 
 cause diligent examination to be made before putting in the 
 answer, of all deeds, ])apers, and muniments in their jtossession 
 or power, and to give in their answer all the information derived 
 from such examination ; and it was said by Sir John Leach M, K. 
 that if a corj^oration pursue an opj^osite course, and in their 
 answer allege their ignorance upon the subject, and tlie informa- 
 tion required is afterwards obtained from the documents scheduled 
 to their answer, the Court will infer a disposition on the jiart of. 
 the corporation to obstruct and defeat the course of justice, and 
 on that ground will charge them with the costs of the suit.^ 
 
 Where a suit is instituted against a corporation sole, he must 
 appear and defend, and be j^roceeded against in the same man- 
 ner as if he were a private individual. But wliere corporations 
 aggregate are sued in their corporate capacity, they must appear 
 by attorney, and answer under the common seal of the corpo- 
 ration ; ^ however, those of the corjioration who are charged as 
 private individuals, must answer upon oath. 
 
 If the majority of the members of a corporation are ready to 
 put in their answer, and the head or other person who has the 
 custody of the conmion seal refuses to affix it, application must be 
 made to the Court of Queen's Bench for a mandamus to compel 
 him, and in the mean time the Court of Chancery will stay the 
 process against the corporation.* 
 
 1 How V. Best, 5 Mad. 19. A mere wit- 
 ness ought not to be made a party to a 
 bill, although the jjlaintitl' may deem his 
 answer more satisfactory than his exam- 
 ination. Story Eq. PI. §§ 234, 519, arid 
 note; 2 Story Eq. Jur. § 1499; Wigram, 
 Discovery (Am. ed.), p. 165, § 2.35; Mare, 
 65, 68, 73, 76 ; Newman v. (iodfrev, 2 Bro. 
 C. C. (Ferkin.t'sed.) .332; Ilowelf v. A.'^h- 
 more, 1 Stock. (N. J.) 82; see VN'right v. 
 Dame, 1 Met. 237; Post v. Boardniiin, 10 
 Paige, 580; Norton ». Woods, 5 Paige, 251. 
 
 2 Attorney-Genend v. The Burgesses of 
 East Ketford, 2 M. & K. 40. 
 
 3 1 Grant Ch. Pr. 120; Rrumley v. 
 Westchester Manuf. So ietv, 1 -John Ch. 
 366; Bait. & Ohio H.K. Co. v. City of 
 
 Wlieeling, 13 Gnitt. 40; Angell & Ames, 
 Corp. § 665; Fulton Bank v. New York 
 and Sharon Canal Co., 1 Paige, 811; Ver- 
 milyea v. Fulton Biink, 1 Paige, 37; Kan 
 som V. Stonington Savings Bank, 2 Beasley 
 (N. J.), 212; Cooper's Eq. I'l. 325; Story 
 Eq. PI. § 874; 3 lloff. Ch. Pr. 239. They 
 may make and adopt any seal proline vice. 
 Pansom v. Stonington' Savings Bank, 
 siiprti ; Will-dam Foundry v. Hovey, 21 
 Pick. 417. Ihe answer of a corporation 
 should be signed by the President. It is 
 usual for the Secretary or Cashier to sign 
 it also. 1 Biirb. Ch. Pr. 156. 
 
 4 Hex V. Wyndliam, Cowp. 377; 2 Bac. 
 Ab. tit. Corp. (E.) 2; Angell & Ames, 
 Corp. § 666.
 
 COEPORATIOXS AXD JOINT-STOCK COMPANIES. 
 
 147 
 
 It may be here stated, that by the 7 Will. IV. and 1 Vic. 
 c. 73, her Majesty is enabled to grant letters-patent constituting 
 comj^anies, and providing that the company thereby constituted 
 shall be sued by one of the public officers of the company ap- 
 pomted for that puiijose.^ 
 
 By the Companies Act, 1862, every company constituted under 
 that Act is, upon certificate of incoi'poration, constituted a body 
 corporate, by the name prescribed in the memorandum of ^associa- 
 tion ; and capable fortlnvith of exercising all tlie functions of an 
 incorporated comj^any, and having perpetual succession and a com- 
 mon seal.^ 
 
 The process for compelling the appearance or answer of a cor- 
 poration will be found in future chapters.^ 
 
 The Bank of England was fonnerly a necessary party to a suit 
 relating to any stock standing in its books, either for the purpose 
 of compelling or authorizing it to sufler, or of restraining it by 
 injunction from jienuitting, a transfer of such stock; but now, the 
 . Court has jiower to make an order to such efiect, although the 
 Bank is not made a i»arty ; ^ and if the Bank is made a party in 
 such a case, the jjlaintiff will be ordered to j^ay the costs occa- 
 sioned thereby.^ 
 
 Before the Court will make an order on the Bank in these 
 cases, a certificate signed by their accountant tliat the fund in 
 question is standing in the name of the party, or of the person 
 of whom he is the representative, must be produced; and the 
 Bank is required to deliver this certificate to the solicitor of the 
 party ajjplying.® 
 
 It may liere be observed, that where money in the public funds, 
 or the stock of any comj)any, is the subject of dispute between 
 tAvo p.-irties, tlie Bank or company, if they desire to npply to the 
 Court of Chancery for protection, sliould do so by filing a bill of 
 interpleader.'' 
 
 It is also to be observed, that the Bank of England is not bound 
 to take notice of any tnist aiFecting public stock standing in their 
 
 1 See arte, p. 25. 
 
 2 26 & 26 Vic. c. 89, § 18; and see ante, 
 p. 27. As to the per«oniiI liability to costs 
 of the flircctors of a limited company, 
 Hiied with the company, see Hett.s v. De 
 Viire, 5 N. K. Itj5, V. C. VV.; 11 Jur. N. 
 8. U, and for form of order therein, sec 
 ib. 217. 
 
 8 See post, Chap. VIII. § 4, and Chap. 
 X. §2. 
 
 < 3'J & 40 Geo. III. c. .^0. Whore the 
 Bank has an interest, or (liscovery from it 
 is .loii^ht, it must he made a party, see 
 § 2 ; and see Tem]ile r. Hank of ICngland, 
 ves. 770, 772; Iviri(|;;e v. K(lridi;e, :j .Mad. 
 3b(J; I'erkins v. linidlcy, 1 llure, 219, a:j2; 
 Uanimond v. Neamc, 1 Swanst. 36, 38; 
 
 Koss V. Shearer, 6 Mad. 458: (Jould v. 
 Kemp, 2 M. & K. 304,311; Gladstone r. 
 Musurus liey, 1 II. &, M. 4U5; U .lur. N. 
 S.71. ^ 
 
 ^ Ivlridf^e I'. Edridge, vbi sup. ; I'erkins 
 V. ISradlev, abi sup. 
 
 •■y.) &"40 (ieo. III. c. 36, §§1,2. 
 
 ■7 Hirch ('. Corbin, 1 Cox, 144. With re- 
 spect to the right of the llank of England 
 to apjjly to a Court of lupiity, to restrain 
 any action hrou;;lit against it liy an execu- 
 tor or other [KTson having a legiil right to 
 call lor a transfer of funds, see JJank of 
 Knglnnd r. Lunn, 15 Ves. 5()'.", 577, and 
 the ciiie"* there cited ; Cochrane r. O'Brien, 
 2 Jo. & Lat, 380; Deshorouiili c llnrris, 6 
 De G., M. & G. 439; 1 Jur. N. S. 980. 
 
 Cii. IV. § 4. 
 
 P^o^^sion3 of 
 7 Will. IV. 
 and 1 Vic. 
 c. 73; 
 
 and of Com- 
 panies Act, 
 1862. 
 
 Process 
 against a 
 corporation. 
 
 Bank of 
 England may 
 be ordered to, 
 or restrained 
 from, transfer 
 of stock, 
 without being 
 made a party. 
 
 Evidence of 
 title of 
 stockholder. 
 
 Where I'ight 
 to public 
 funds, or to 
 stock of a 
 corporation, 
 is in dispute, 
 bill of inter- 
 ]ik'ader may 
 he tiled. 
 ]{ank not 
 liounil to 
 notice a trust 
 of ]>ublic 
 stock.
 
 148 
 
 PERSONS AGAINST WHOM A SUIT MAY BE INSTITUTED. 
 
 Ch. IV. § 1. 
 
 Effect of a 
 specific 
 bequest of 
 stock; 
 
 8 & 9 Vic. 
 c. 97. 
 
 Distringas. 
 
 liDoks: all (hat (hey have to «Io is to look to the legal estate; ;ind 
 theii'toi\', if (lie |ier«ou entitled to the legal estate applies for a 
 transler [o himselti the liaiik must permit the transfev, and are not 
 bound to lo(.>k further to see whether the stock is trust stock.^ 
 Upon this groinul, ■where a bill was filed against the Bank, to 
 compel them to make good the deficiency in a sum of stock which 
 had been sj)eeifically bequeathed to a trustee, who was also the 
 executor, and Avhich had been transferred to the trustee and 
 executor, and aiterwards sold out by him, it was dismissed as 
 against the Bank.^ Upon the same principle, where the Bank 
 tiled a bill against the executors of a will to restrain their pro- 
 ceeding in an action brought by them against the Bank, in conse- 
 quence of their refusal to permit a transfer to the executors of 
 stock, jiart of the testator's residuary estate, which had been 
 bequeathed to them uj^on certain trusts, the injunction was dis- 
 solved, on the ground that the Bank had a good defence at law.^ 
 
 It may be further observed, that, by the 1 Geo. I. st. 2, c. 19, 
 § 90, by which the management of the public stocks or annuities 
 was first given to the Governor and Company of the Bank of 
 England, the stock created by that Act was declared to be per- 
 sonal estate ; and it was provided that any person jjossessed of 
 such stock or annuities might devise the same by will in writing, 
 attested by two or niore credible witnesses. These clauses were 
 repeated in all subsequent Acts creating stocks of this nature, and 
 gave rise to considerable discussion as to whether the Bank -were 
 bound to take notice of a S2)ecific devise of stock, attested by two 
 witnesses, and registered according to the provisions of the Acts, 
 and whether they were justified in resisting a claim to such stock 
 set up by the executor.* This doubt is now removed : for by 
 the 8 & 9 Vic. c. 97, it is enacted, that all shares of public stock 
 standing in the name of any deceased person may be transferred 
 by the executors, notwithstanding any specific bequest of the stock 
 so to be transferred. 
 
 There are certain means provided by statute,^ by which, upon 
 summary a})plication, orders may be obtained restraining, for a 
 limited jieriod, the transfer of stock or the j^ayment of dividends. 
 For the practice on those points, the reader is referred to the 
 chapter on Orders in the Nature of Injunctions.^ 
 
 1 See Fisher v. Essex Bauk, 5 XJlraj', 
 373, .377, .378. 
 
 2 Hartga v. Bank of England, 3 Ves. 
 55, 5t<. 
 
 3 Bank of Fngland v. MoffiM, 3 Bro C. 
 C. 2ti<J; 5 Ves. 66«, and note; and see 
 Bank of England v. I'arsons, o Ves. tit)5. 
 
 4 Pearson v. Uauk of England, 2 Bro. 
 
 C. C. 529; 2 Cox, 175; Bank of England 
 V. I'arsons, nbi sup. ; Au>tin v. Bank of 
 England, » Ves. 522; Bank of Enghiiid v. 
 ]>unn, 15 Ves. 66'J; Franklin v. fiank of 
 England, 1 Kuss. 575, 582; and see U B. 
 & C. 15tj; Wms. Exors. p. 725. 
 
 5 5 Vic. c. 5, §§ 4-6; (^rd. XXVII. 
 
 C See^vosf, Chap. XXXVII.
 
 PERSONS OUT OF THE JURISDICTION OF THE COURT. 
 
 149 
 
 Section Y. — Persons out of the Jurisdiction of the Court. 
 
 Ch. IV. § 5. 
 
 Where a suit affects the rights of persons out of the jurisdiction, Wliere their 
 the Court will in some cases, where there are other parties con 
 
 ceraed, proceed against those other parties; and if the absent 
 persons are merely j^assive objects of the judgment of the Court, 
 or their rights are incidental to those of the parties before the 
 Court, a complete detemiination may be obtained without them.^ 
 Thus, in Attorney- General at the relation of the University of 
 Glasgow v. JBaliol College,'^ which was an information filed to 
 impeach a decree made in 1699, on a former information ^ by the 
 Attorney-General against the trustees of a testator, his heirs-at- 
 law and others, to establish a will and a charity created by it, 
 alleging that the decree was contrary to the will, and that the 
 University of Glasgow had not been made a party to the suit : 
 Lord Hardwicke oveiTuled the latter objection, as the University 
 of Glasgow was a coi*poration out of the reach of the process of 
 the Court, Avhich circumstance warranted the j^roceedings, without 
 making that body party to the suit. 
 
 incidental to 
 those of 
 others. 
 
 1 Ld. Red. 31, 32; and see Powell v. 
 Wright, 7 Beav. 444,450; Ston' Eq. PI. 
 §§ 78. 81 et seq ; Fell v. Brown, 2 Br<>. C. 
 C. (Perkin.s's ed.) 276, and notes; West 
 V. Kandali, 2 Mason, 190-198; Mallow v. 
 Hinde, 12 Wheat. 193 ; Russell v. Clarke. 
 7 Crunch. 72; Luca* v Bank of Darien, 2 
 Stewart, 280; Joy v. Wirtz, 1 Wash. C. C. 
 517; Erickson v. Nesniith, 40 N. M. 371. 
 The general rule is stated in Lawrence i'. 
 Rokt'.s, 53 .Maine, 110: see Vose v. I'hil- 
 brook, 3 Story, 347; Van Reimsdyke v. 
 Kane, 1 (;all.371; Bailey y. Inglee, 2 Paige, 
 278. " Thisgroiini of exception," says ftlr. 
 Justice Story, " is peculiarlj' applicable to 
 f>uits in E(|iiityin the Courts of the United 
 States, which suits can be maintained in 
 general only by and at;ainst citizens of dif- 
 ferent States. If, thf-rcfore. tlie rule as to par- 
 ties were of univer-al operation, many suits 
 in tho'ie courts would b" incapable of being 
 sustained therein, because all the projicror 
 nccessar}' [larlies miirht not be citizens of 
 different States; so that the jurisdiction of 
 the Court would be ousted by any attenii)t 
 to join them. On this account it is a gen- 
 eral rule in file (jourts of the I'nited Stales 
 to dispeni^e, if consistently with the in(Mits 
 of the case it can possibly be done, with 
 all partie-', over whom the Court would 
 not possess jurisdiction." Stfirj* Eij. I'l. 
 § 79; West r. Ran.lall, 2 Ma-on, 191); 
 Hu-sell )• Clarke, 7 Cianoh, 09, 9H; Mil- 
 ligan v. Milledge, 3 Crancli,220; .Sinims i: 
 Guthrie. 9 ("ranch, 19,29; Kliiiend rf r. 
 Tavlor, 10 Wheat. 152; Mallow v. Hind-, 
 12 Wheat. 193; Ilanling v. Handy, 11 
 Wheat. 103; Ward v. Arredendo, 1 I'aine 
 
 C. C. 413, 414. See the Act of Congress 
 on this subject, passed Feb. 28, 1839, e. 36, 
 § 1, by which an important alteration has 
 been effected. The provi>iions of it are 
 stated in the note to Storv Eq. PI. (3d ed.) 
 §79. 
 
 But a decree cannot be made against a 
 defendant personnlly who has never been 
 an inhabitant of the State, or served with 
 process in it. Moody v. Gay, 15 Gray, 
 457; S[)urr v. Scoville, 3 Cush. 578; see 
 Erickson v. Nesmith, 46 N. II. 371,377; 
 Lawrence i\ Hokes, 53 Maine, 110. 
 
 A bill alleging that three of the four 
 defendants were not inhabitants of the 
 State, will, on demurrer, be dismissed as 
 to them, when no service has been made 
 on them. Stephenson v. I'avis, 56 Maine, 
 73. The only service miule in tliis case 
 upon the parties demurring, was an at- 
 tachment of their real, and pe'sona! prop- 
 erty. See Spurr v. Scoville, 3 Cush. 678. 
 But the Court will not dismiss a bill on a 
 mere suggestion that certain stockholders, 
 who were defendants, were not residents of 
 the State, anrl, therefore, the Court liiid not 
 jurisdiiiion a< to them. Wisweji ?•. Starr, 
 50 Maine, 3>^1. 384. In Tost^rate c. Barnes, 
 9 .lur N. S. 4.56, V. C. S., a demurrer to 
 the Vtill of a married woman toentbrce her 
 (■(piitv to a settlement, on the ground that 
 her bu'«liand was only made a del'end- 
 ant when he sliouM couk^ within tlie juris- 
 diction, was overruled; and see .lackson 
 V. Norton, 4 Jur. N. S. 1067; 7 W. R. 4, 
 M. R. 
 
 ■■i Dec. 11, 1744; Ld Red. 32, n. (u). 
 
 8 Rcjiorted in 9 Mod. 407.
 
 150 
 
 PERSONS AGAINST WHOM A SUIT MAY BE INSTITUTED. 
 
 One factor or 
 one exoiutor 
 hen>. tlio 
 otluT iibroinl. 
 
 Decrees 
 made, with- 
 out prejudice 
 to rights of 
 absent 
 parties. 
 
 In cases of 
 interpleader. 
 
 And so, wIkmv a liill was iilrd lor tlio ivc()very oi" a joint debt 
 nu'ainst ono o\' two ]>artiu'i's, the other being out of the kingdom, 
 the question before the Court was: whether the defen(hvnt shoukl 
 pay the whole or only a moiety of the debt; and Lord Ilardwicke 
 Avas of i>))inion that he ouglit to ])ay the wholc.^ IT])on the same 
 principle, a bill may be brought against one factor without his 
 companion, if such companion be beyond sea; ^ and where there 
 were two executors, one of Avhom was beyond sea, and a bill was 
 filed by a residuary legatee against the other, to have an account 
 of his own receipts and ])ayments : the Court, upon an objection 
 being taken at the hearing, on the ground of the absence of the 
 co-executor, allowed the cause to go on.^ 
 
 In his treatise on pleading. Lord Redesdale says, " when a per- 
 son 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 before the Court ; and the Court will proceed, 
 without him, against the other parties, as far as circumstances will 
 permit;"* and oii this principle, the Court has fie<{uently made 
 decrees without prejudice to the rights (if any) of absent j^arties, 
 or reserving all questions in which they were interested, and 
 determining only such as did not afiect them.^ 
 
 In bills of interpleader, also, a plaintiff may proceed with his 
 suit and obtain an injunction against a party resident in this coun- 
 try, although the other parties claiming the property are out of 
 the jurisdiction.^ In such cases, however, the plaintiff is bound to 
 use prompt diligence to get the parties who are absent to come in 
 and interplead with those who are ])resent. If he does not suc- 
 ceed in doing so within a reasonable time, the consequence is, that 
 the party Avithin the jurisdiction must have that which is repre- 
 
 1 Darwentr. Walton, 2 Atk.510; Erick- 
 son V. Nesmith, 46 N. H. 371; Story Kq. 
 PI. § 82. This rule, that the Court can 
 proceed to a decree aj^ainst those parties, 
 who are within the jurisdiction, must be 
 taken with the (jualiiication that it can be 
 done without manifest injustice to tlie ab- 
 sent partner. Story Eq. PI. §§ 78, 82 ; Mil- 
 ligan r. Milledf^e, 3 Cranch, 220; Towle v. 
 Pierce, 12 ^let. 329; Lawrence v. Kokes, 
 53 Maine, 110, 116. 
 
 A bill seckiiiff an adjustment of the ac- 
 counts between the part-owners of a vessel, 
 some of whom reside without the jurisdic- 
 tion of the Court, cannot be sustained, un- 
 less such non-residents are summoned to 
 answer, or it appears from tlie allefiatioiis 
 in the bill that not only their interests 
 will not be prejudiced by the decree, but 
 also that they were n<it neces'^ary to the 
 just ascertainment of the merits of tlie 
 case. Mudgett v. Gaprer, 52 Maine, 541; 
 Fuller V. Benjamin, 23 Maine, 255. It is 
 
 not enough for the bill to allege that " the 
 plaintiff does not claim there is any thing 
 due to him from said non-residents; or 
 that he does not seek thereby to recover 
 an}' tiling from them." Mudgett v. 
 Giiger, snprn. 
 
 2 Cowslad V. Cely, Prec. Oh. 83. 
 
 8 Ibid. 
 
 4 Ed. Red. 164; see also Smith v. Hi- 
 bernian Mine Company, 1 Sch. & Lef. 
 238, 240; Rogers v. Linton, Bunb. 200; 
 Wailey v. Walley, 1 Yern. 487: Duxbury 
 V. Isherwood, 12 W. H. 821, V. C W.; 
 Erickson v. Nesmith, 46 N. H. 371, 376; 
 Lawrence v. Kokes, 53 Maine, 110. 
 
 5 VVillats V. Busby, 5 Beav. 193, 200; 
 Powell V. Wright, 7 Heav. 444, 450 ; Mor- 
 ley V. Kennoldson, 2 Hare, 570, 585 ; 7 .Jur. 
 938; Mores v. Mores, 6 Hare, 125, 127, 
 135; 12 Jur. 620; see Moody v. Gay, 
 15 Gray, 457. 
 
 6 Stevenson v. Anderson, 2 Ves. & B. 
 407, 411.
 
 PERSONS OUT OF THE JURISDICTION OF THE COURT. 
 
 151 
 
 sented to be the subject of competition, and the jahiintiff must be 
 indemnified against any proceeding being afterwards takeu on the 
 part of those who are out of the jurisdiction.^ For this puqiose, 
 " if the phuntiff can show that he has used all due diligence to 
 bring persons out of the jurisdiction to contend with those who 
 are within it, and they will not come, the Court, upon that defiiult, 
 and theu" so abstaining from giving him an opportunity of re- 
 lieving himself, would, if they afterwards came here and brought 
 an action, order service on their attorney to be good service, and 
 enjoin that action for ever : not pemiitting those who refused the 
 plaintiff that justice, to commit that injustice against him." ^ 
 Upon the same ground it has been determined, that where a paity 
 to a bill of inteqileader, who has been served, will not appear, and 
 stands out all the process of contemjit, the bill may be taken ^>;*o 
 confesso against him, and he will be decreed to interplead with 
 the other defendants.^ 
 
 Where, however, the person who is out of the jurisdiction is one 
 whose interests are princii)ally affected by the bill, the Court can- 
 not jjroceed in his absence, even though the parties having the 
 legal estate are before the Court ; * thus, where a judgment creditor, 
 who had sued out an elegit upon his judgment, filed a bill for 
 equitable execution against real estates, which were vested in 
 trustees upon certain trusts, the Court Avould not proceed with the 
 cause, because the equitable tenant for life, subject to the trusts, 
 was abroad.^ Upon the same principle it has been held, that bail 
 cannot maintain an injunction against a creditor, who has recovered 
 a verdict, where the principal debtor is out of the jurisdiction.® In 
 a case where a contract for the sale of an estate in the AVest Indies 
 had been entered into by a person who resided there, and had got 
 into possession without paying the purchase-money, and a suit was 
 instituted in this country by the vendor against the consignees 
 aj»j)ointed by the purchaser, Lord Lyndhurst refused to entertain 
 a motion for a receiver of the proceeds of the consignments, on 
 the ground that the purcliaser, wlio was the principal defendant, 
 was abroad, and had never been served Avith a suhpoina^ 
 
 Ch. IV. § 5. 
 
 1 Stevenson v. Anderson, 2 Ves. & B. 
 407, 411. 
 
 2 IVr Lord Eldon, 2 Ves. & B. 412; nee 
 also Martiniiin r. Helmuth, G. (,'()op. 24r), 
 24H ; reiK)rted also in some copios ot 2 Ves. 
 & B. 412 n.; Kast and West India Dock 
 Company r. IJttltidale, 7 Hare, hi. 
 
 8 Fairtirother v. I'rattent, Dan. Exc. 
 64; aiirl itie decn-e Uj. 6!», ri. (r). VVliere 
 the ri;.'lits ot a defendant in Ivinity, who 
 resides out r)f the State and liiis had notice 
 of tlie Ruit, hut does not appearand answer, 
 will not he prejudiced liy the decree, the 
 bill may he taken pm nmfestii as to liim. 
 Adams v. Stevens, 49 Maine, 302. 
 
 * Story Eq. PI. § 81; Fell v. Brown, 2 
 Bro. C. C. (Perkins's ed.) 278, 279, notes; 
 Joy V. Wirtz, 1 Wash. C C 517; Ku.ssell 
 V. (!i:irke, 7 Cranch, 72; Mallow v- Hinde, 
 12 Wheat. 193: Lawrence v. Rokcs, 53 
 Maine, 110, 113; Spurr v. Scoville, 3 
 Cush. 578. 
 
 6 Browne v. Blount, 2 K. & M. 83; and 
 see Kirwan v. Daniel, 7 Hare, 317; .M'Cal- 
 mont V. Hankin, 8 Hare, 1; 14 .Jur. 475; 
 Aiidersr)n v. Stather, 2 Coll. 209. 
 
 Uoverav f. Gravson, 3 Swanst. 145, n. 
 
 ' Strattoii v. Davidson, 1 11. & M. 484. 
 
 Where their 
 interests 
 princi]5ally 
 affected, the 
 Court cannot 
 proceed in 
 their absence.
 
 IT) -2 
 
 TERSOXS AGAINST AVIIOM A SUIT MAY UK INSTITUTED. 
 
 Cii. IV. 5 5. 
 
 In what cases 
 made parties. 
 If made par- 
 ties, the fact 
 of their living 
 out of juris- 
 diction must 
 be proved, 
 unless they 
 ajipear. 
 If proof de- 
 fective, cause 
 generally 
 ordered to 
 stand over 
 till evidence 
 supplied ; 
 or inquiry 
 directed. 
 Leave to 
 .serve hill on 
 defendant 
 coininix with- 
 in juri>di<;tion 
 after decree, 
 refused. 
 
 It li:is biHMi lu'ld, that a roooiver of a inortojapfed estate maybe 
 nii]ioiMte(l, notwidistaiidiiiu' the al)soiK'e ivl" the in()rtg;io;or. Tlius, 
 in the ease of Titnji'hl v. Jrrifu',^ an apijlieation for :i receiver had 
 been made to Sir Jolm Leach V. C. by the grantee of an annuity, 
 whieli w.is secured by an equitable charge upon an estate; and 
 tli(>UL;h tlie grantor had gone abroad, and had not appeared to the 
 suit, liis Honor refused tlie application, on the ground that the 
 Court had not Jurisdiction to de]>rivo a man, who was not present, 
 of the possession of his estate ; but upon the motion being renewed 
 before Lord Eldon, he made tlie oider for a receiver, but guarding 
 it, however, in such a way as not to prevent any ])erson having a 
 better title to the ])OSsession of the estate, from ousting him if 
 they pleased. His Lordship observed, that he did not see why the 
 rights of the equitable mortgagee were to be taken away, by the 
 circumstance that the mortgagor had not entered an a])pearance, 
 and could not be compelled to do so ; ^ and that a second mortgagee 
 might be delayed to all eternity, if the residence of the mortgagor 
 out of the jurisdiction were to have the effect which the Vice- 
 Chancellor had given it. 
 
 It is usual, in cases where any of the persons who, if resident in 
 this country, would be necessary parties to a suit, are abroad, to 
 make such persons defendants to the bill, stating the fact of their 
 being abroad : which fact, unless they appear, must be proved at 
 the hearing ; ^ and, notwithstanding the observation of Lord 
 Redesdale cited above, it seems that the admission of the parties 
 before the Court is not evidence on which the Court Avill act.* 
 When the proof of this fact at the hearing is not such as to satisfy 
 the Court, the usual practice is to direct the cause to stand over 
 for the ]ntr])ose of sup])lying the proper evidence.^ In some cases, 
 however, if there are ])reliminary incpiiries or accounts to be taken, 
 they have been directed to be proceeded with in the mean time ; ° 
 and in others, an inquiry as to the fact has been directed.'' In 
 Penfold V. Kelly ^ Sir R. T, Kindersley V. C. refused an apj)lication 
 
 1 2 Huss. 149, 151; see also Coward v. 
 Chad wick, ib. 634, and 150 n.; Dowling 
 V. Hudson, 14 IJeuv. 423, and cases col- 
 lecteil in the note thereto. 
 
 •■i See Fell v. Brown, 2 liro. C. C (Per- 
 kins's ed.) 278, 279, and notes. 
 
 3 Moodie r. Bannister, 1 Drew. 514; see 
 Erickson r. Xiisniitii, 40 X. M. 371. The 
 party should not he named as a defen'lant 
 " when he shall come within the jurisdic- 
 tion," but US heiuf^ "out of the jurisdic- 
 tion:'" see .Iack«on r. Xirton, 4 .Fur. N. 
 S. 1067; 7 W. \\. 4, .M. I{. ; Storv Eq. PI.* 
 § 80: Munor v. I)e Tarfel, 1 Beav. 109; 
 Br''Oke» r Burt, 1 Beav. 109; I'ingree v. 
 Coffin, 12 Grav, 288, 303, 304; Po^tsafe v. 
 Barnes, 9 ,Jur." N. 8. 456; 11 W. \i. 456, 
 V. C. S. ; see, however, Merriman v. 
 Goodman, 1 W. N. 46, M. R. 
 
 4 Wilkinson v. Deal, 4 Miid. 408 ; 
 Hughes V. Kades, 1 Hare, 486, 488; 6 .lur. 
 255; EggiiitdU v. Burton, 1 Mare, 488 n.; 
 M'Cahnont v. Kankin, 8 Hare, 1; 14 Jur. 
 475. 
 
 ^ Egginton v. Burton, 1 Hare, 488 n.; 
 Smith V. Edwards, 16 Jur. 1041, V. C. S. 
 As to necessary evidence, win-re there is 
 deliy between the making and drawing 
 up of the order, see Anon., 9 L. T. N. S. 
 674, M. K. 
 
 « Butler V. Borton, 5 Mad. 40, 42; 
 Hughes V. Eadi's, 1 Hare, 486; 6 .Jur. 255. 
 
 7 Mores «. Mores, 6 Hare, 136; 12 .Jur. 
 620; Eitdes r. Harris, 1 Y. & C. C. 230, 
 234; but see Dibbs v. Goren, 1 Beav. 
 457. 
 
 8 12 AV. R. 286, and see Ord. X. 11, 18.
 
 PEESONS OUT OF THE JUEISDICTIOX OF THE COURT. 153 
 
 for leave to serve a defendant coming within the jurisdiction after Ch. rv. § 5. 
 
 decree, and against whom no specific relief was prayed, with a copy "^ r -^ 
 of the bill. 
 
 In Ca2)el v. Butler^ where a party who was named as a defend- Defect cured 
 
 ant, but had never been served, appeared by counsel at the hearmg, appe ™voiun- 
 
 and consented to be bound by the decree, the defect arising fi-om tariiy at the 
 
 ,., T11T1 10 hearing, and 
 
 his not havmg been served was held to be curea/ con-^ent to be 
 
 In some cases, where a defendant has been abroad during the ^o^nd. 
 
 ... Ill 11 1 ^ • ^L Defendant 
 
 proceedings m a cause, he has been allowed to come m alter a aUowed to 
 decree has been pronounced, and to have the benefit of it, without come m after 
 the process of filing a supplemental bill. Thus, in Banister v, 
 Way^ after a decree, pronounced in a suit by a residuary legatee, 
 establishing a Avill, and directing the necessary accounts, others of 
 the residuary legatees, who were abroad, applied to, have the 
 benefit of the decree, submitting to be bound by it ; and an order 
 was made by Lord Thurlow (they submitting to the decree) that 
 they should be at liberty to enter their appearance, and should 
 have the like benefit of the decree as if they had j^ut in an answer, 
 and had api)eared at the hearing of the cause. A shnilar order 
 was made by Lord Lyiid hurst, after a cause had been heard upon 
 further directions.* 
 
 An order for leave for a defendant to come in, after decree, may Order to come 
 be obtained by petition of course, if the plaintiff" will consent o'btaiued. 
 thereto. If he will not consent, notice of motion, or a summons, 
 must be served on him.^ The petition, notice of motion, or sum- 
 mons, usually asks that the defendant, on submitting to be bound 
 by the decree and proceedings already had, may be at liberty to 
 enter an appearance to the bill, and may have the like benefit of 
 the decree, and may be at liberty to attend the subsequent pro- 
 ceedings, as if he had appeared at the hearing. A copy of the 
 order, when passed and entered, sliould be served on the solicitors 
 of the other defendants, and on the plaintiff''s solicitor when the 
 oi'dor is made on petition. On production of the order to the 
 Record and Writ Clerk, an apjiearance for the defendant* may be 
 entered in the usual way ; and notice thereof must be given, on 
 tlie same day, to the ])laiiitiff"'s solicitor; " and the cause thenceforth 
 jiroceeds against such (k'fendant in the ordinary manner. 
 
 In the case of infants, however, tlie Court must be satisfied, by in ease of 
 iiKjuiry (jr otlierwise, that it is for their l)enefit to adojit the pro- "'''"'*^- 
 cecMings.'' 
 
 1 2 S. & S. 4r,7, 462; and see Sapte v. 6 IJraithwaite's IV. 823. For form of 
 
 Ward. 1 Coll. 24. onler, Hee Seton, 12.00; and for forms of 
 
 '■* For form of introductori' part of de- ])utitir)M, ncilice (if motion, and summons, 
 
 crcP, see Seton, 3, 4; and 1 Coll. 25. see Vol III. 
 
 8 2 Dick. Oi-e. " l''or forms of jircecipe and notice, see 
 
 * Whitr r. Mall, 1 H. & M. 3.32; and V..I. III. 
 
 see l'rendcr(;a>'t )•. Liishinfrtun, r. Iliirc. ' ('(p|il('vr Smifh.son, 5 De G. & S. 683; 
 
 177; I'dlts V. Hritton, M. K. in Clianib.,22 Baillio v. Jackson, 10 Sim. 167. 
 Dec, 1804.
 
 154 
 
 PERSONS AGAINST 'WHOM A SUIT IMAT BE INSTITUTED. 
 
 Ch. IV. § r.. 
 
 >— Y ' 
 
 Pofoiulaiit 
 statoti ill the 
 bill to l>o 
 al>n)iul, is not 
 onlinarily 
 consiiU'rcil a 
 party till 
 sen-ed. 
 Court now 
 can direct 
 service out , 
 of the 
 jurisdiction. 
 
 When service 
 
 abroad 
 
 necessary. 
 
 WIuMV :i (lotl'iiilaiit is stated to be abroad, lie is not considered 
 a party to tlie suit, at U^ast not till he lias been served Avitli' the 
 bill, tor the detennination of any point of practice arising between 
 the plaintiif and the other defendants ; therefore, an order to amend 
 cannot be obtained, after the usual time, on the ground that a de- 
 fendant abroad has not answered.^ 
 
 Under the ]>resent ])ractice of the Court, however, such questions 
 as Ave have been considering, with reference to defendants out of 
 the jurisdiction, will be of comparatively rare occuiTcnce ; for the 
 Court can now, in many cases, direct service on persons out of the 
 jurisdiction;- and can also, when the suit is defective for want of 
 ])arties, and the defendant has not taken the objection by plea or 
 answer, make a decree, if it shall think fit, saving the rights of 
 absent parties.^ 
 
 And it may here be observed that, as a general rule, persons are 
 not now named ])arties to a suit unless direct relief is sought 
 against them ; and therefore, if they happen to be out of the juris- 
 diction, it will in general, on the authority of JBrowne v, Blouyit^ 
 and the other cases before referred to, be necessary to serve them. 
 
 Section VI. — Paupers. 
 
 Defendants 
 allowed to 
 defend 
 in foi-ma 
 pauperis. 
 
 Although the 11 Hen. VII. c. 12, before referred to as that under 
 which the practice of admitting parties to sue m forma pauperis 
 originated,^ does not extend to defendants, and consequently a 
 defendant in an action at law is never allowed to defend it as a 
 pauper," yet a greater degree of liberality is practised in Courts of 
 Equity ; and a defendant who is in a state of poverty, and, as such, 
 incapable of defending a suit, may, as well as a plaintiff, obtain an 
 order to defend in forma pauperis, upon making the same affidavit 
 of poverty as that required to be made by a plaintiff.' Indeed, 
 originally, the right of admission in forma pauperis appears to 
 have been confined to defendants. By Lord Bacon's orders it is 
 said, that " any man shall be admitted to defend in fonna pauperis 
 
 1 King of Spain v. Hullett, 3 Sim. 3.38. 
 
 2 2 & 3 Will. IV. c. 33; 4 & 5 Will. 
 IV. c. 82. Ord. X. 7; see poit, Chap. 
 VIII. § 1. 
 
 8 Ord. XXIII. 11 ; Maj'beny v. Brook- 
 ing, 7 De G., M. & G. 673; 2 Jur. N. S. 
 76. 
 
 4 2 R. & M. 83, anU, p. 151. 
 
 6 Anlt, p. 38. 
 
 6 Chitty's Arch 1277. 
 
 7 McDonough v. O'Flaherty, 1 Beat. 54. 
 In Nesv Jersey tlie privilef^e of defending 
 in Jwma pauperis is granted in a proper 
 
 case, although the Act of Assembly ex- 
 tends in terms only to plaintifis. Pickle r. 
 Pickle, Halst. N. .J. Dig. 177. It seems to 
 be doubtful, in New York, whether, in 
 any case, a party can defend in forma 
 pauperis. The doubt grows out of the 
 peculiar phraseology of the Statute in that 
 State. IJrowo r. Story, 1 Paige, 588. 
 
 A party will not be deprived of the 
 privilege of defending himself in forma 
 pauperis on account of his misconduct. 
 Murphy v. Oldis, 1 Hogan, 219.
 
 PAUPERS. 
 
 155 
 
 iii:)on oath ; but for plaintiiFs, they are ordinarily to be referred to 
 the Court of Requests, or to the provincial coxinsels, if the case 
 ai-ise in the jurisdictions, or to some gentlemen in the country, 
 except it be in some special cases of commiseration or potency of 
 the adverse party." ^ 
 
 It has been before stated, that no person suing in a represent- 
 ative character is allowed the privilege of proceeding in foifna 
 2Muperis. The same rule applies to defendants sued in a represent- 
 ative character, even in cases where they liave received no assets 
 of the estate of the testator whom they represent.^ 
 
 The solicitor to the Suitors' Fund, or other officer appointed by 
 the Lord Chancellor, is to visit Whitecross Street Prison ^ quarterly, 
 examine the prisoners confined for contempt, and report his opinion 
 on their cases ; and the Lord Chancellor may thereupon assign a 
 solicitor to defend the prisoner in forma pauperis. A like assign- 
 ment may also be made, in the case of persons confined for con- 
 tempt in other prisons, upon the jailer's report, and after 
 investigation by the solicitor to the Suitors' Fund.* The assign- 
 ment is made without an application to the Court.^ 
 
 The order admitting a party to sue or defend in forma pauperis, 
 has not the effect of releasing him from costs ordered to be paid 
 j»rior to liis admission, but the payment of such costs may be en- 
 forced in the usual manner ; it may, however, be doubtful whether 
 the admission may not have a retrospective effect upon costs 
 incurred before the date of his admission, but concerning which 
 no order for taxation and payment has been made.® Where a 
 defendant had been committed for not answering, and had subse- 
 quently obtained permission to defend in forma jxmperis, and 
 thereui)on had put in his answer. Sir. J. L. Knight Bruce V. C. 
 ordered him to be discharged, without payment of the costs of the 
 contemitt : considering the Court to have ])OAver to make such an 
 order, either under its general authority independent of the 
 11 Geo. IV. & 1 Will. IV. c. 36, or under that statute combined 
 with its general authority."' It a])i)ears that where the plain- 
 tiff dismisses his bill against a ])auj>er defendant, the practice is 
 to allow the defendant dives costs.* 
 
 Ch. IV. § 6. 
 
 Privilege does 
 not extend 
 to persons 
 defending in 
 a represent- 
 ative cliar- 
 acter. 
 
 Statutory 
 pro%"ision as 
 to poor 
 prisoners. 
 
 Admission 
 does not 
 release pauper 
 from costs 
 previously 
 ordered to 
 be paid. 
 
 Costs of 
 pauper de- 
 fendant, on 
 dismissal of 
 l)ill. 
 
 1 Ueames'8 Ord. 44 : Snnd. Ord. 122. 
 Tills order is alirogatcfl by the Cons. Ord. ; 
 but see ib. I'rel. Orel. r. 5; see also Lord 
 Cliireiulon's Ordi-rs, Ueames, 215-218 : 
 Sand. Ord. 312; now Cons. Ord. VII. 9- 
 11. 
 
 2 Oldfield V. Cobbett, 1 Phil. 613; ante, 
 p. 38. 
 
 3 Substituted by 2.5 & 26 Vic. c. 104, for 
 the Queen's iirisun. 
 
 •« 2H & 21 Vic. c. 149, §§ 2, 5; and see 
 §§ 3. 4. 6, and /*"«'. Cliap. X. § 2. 
 
 '' Lavton v. Mortiniore, 2 De G., F. & J. 
 853. 
 
 *> Davenport v. Davenport, 1 riiil. 124; 
 see, liowever, Prince Albert v. Strange, 2 
 De G. & S. 052, 718; 13 .lur. 507, where a 
 defendant, having been admitted to defend 
 in the course of the cause, was ordered, at 
 the hearing, to pay the plaintiirs costs up 
 to the time of such admission. 
 
 7 r.enm,-tt r. Chudleigh, 2 Y. & C. C. C 
 104; see, however, Snowball v. i)i.\on, 2 
 De G. & S. ;i: and Dew v. Clark, 16 Jur. 
 1, L. C; 3 M'N. & G. .357. 
 
 8 Ruborv r. Morris, 1 M'N. v*t G. 413: 
 16 Sim. 312, 433; 12 .Jur. 0^1). I'nless oth- 
 erwise directed, costs ordered to be paid
 
 15G 
 
 rEPvSOXS AGAINST WHOM A SUIT MAY BE INSTITUTED. 
 
 Cii. IV. § ■ 
 
 Defendant 
 not adniittoi 
 if in iKisscs- 
 sion of 
 property in 
 dispute. 
 
 How ad- 
 mitted. 
 
 To iMititlo n ]):ivly to di'lbiid as a ])aii|H'r, lie intist make an 
 aflidavit similar to that roquiuHl I'roni a ])laintiil'a)>|ilyini'" to sue in 
 that c'harai'tor ; and it seoms that if he is in possession of the 
 proiterty in dispute, he cannot he admitted, or, if admitted, he 
 may, upon the fact beinij afterwards shown to the Court, he dis- 
 paupered.^ In this and in most other res])e('ts, the rules laid down 
 with regard to persons suing in forma, pavperis,'^ are applicable to 
 persons defending in that character: the only difference being in 
 the fonn of application for admission ; for the petition, in the case 
 of a defeiulant, is much shorter than in the case of a plaintiff, and 
 is not required to contain any statement of the case, or to be accom- 
 panied by any certificate of counsel.* 
 
 Section" VII. — Persons outlawed, attainted, or convicted. 
 
 In what cases 
 they may be 
 defendants. 
 
 It is said that all persons disabled by law from instituting or 
 maintaining a suit may, notwithstanding, be made defendants in a 
 Court of Law, and cannot plead their own disabilities; * and it is 
 presumed that this rule would also be adopted in Courts of Equity, 
 where the suit seeks to establish, a pecuniary demand against the 
 party; where, however, the proceeding is in rem, and a person 
 under any of the disabilities alluded to is interested in the sulyect 
 of the suit, then it w^ould seem, that as the interest of the ]>arty is 
 entirely vested in the Crown, the Attorney-General would be the 
 proper defendant.^ Whether in such case, the party himself should 
 be joined, is a point which does not appear to have been deter- 
 mined ; but it is submitted that the rule, that no j^erson can be 
 made a party to a suit against whom no relief can be prayed, will 
 apjily to this case, as well as to that of bankrupts. 
 
 to a party suing or defendine; in f&rmd 
 pauperis, are to be taxed, as dives costs, 
 Onl. XL. .5. 
 
 1 Spencer v. Bryant, 11 Ves. 49; see 
 also Wvatt's P. R.'.321. 
 
 2 Ante, pp. 41, 42. 
 
 3 See Onl. VII. 9, 10, 11 ; XL. 5. Regu- 
 lation to Orrl. IV. 2. The defendant need 
 not enter an appearance before applying; 
 for the order, liraithwaite's Pr. 6tj3. An 
 application in behalf of an infant defend- 
 ant for leave to defend, in forma pau- 
 peris, will not l)e entertiiine'l liefore the 
 appointment of a ),'uardian ad litem. Mat- 
 ter of IJyrtie, 1 Kilw. ('h. 41. For forms 
 of petition and aflidavit, see Vol. II L 
 
 * Treatise on Star Chamber, part .3, § 6 
 (2 Collect. Jurid. 140). It is said in the 
 
 above Treatise, that persons attainted of 
 treason or felony are excepted out of tliis 
 rule; but it has been decided, in many 
 cases, that a defendant c;innot plead his 
 own attainder to an action brought against 
 him for debt or trespass. Banvster ?). Trus- 
 sell, Cro. Eliz. 51C; Coke's "Entries, 246; 
 see also Ward and PrestiiH's cases, in 1 
 Leon, 329; and Vin. Ab Attainder (B) 3. 
 5 See Balch v. Wastiijl, 1 P. Wins. 445; 
 
 Havward v. Frv, ib. 446 ; Bromle}-, 2 
 
 P. Wms. 2G9, 270; Rex v. Fowler, Bunb. 
 38; Cuddon v. Hubert, 7 Sim. 485; and see 
 Attorney-General v. Rickards, 8 Beav, 380; 
 Goldsmith V. Russell, 5 De G., M. & G. r,47 ; 
 Hromley v. Smith, 20 Beav. 644; Hancock 
 V. The Attornej^-General, 10 Jur. N. S. 
 557; 12 W. R. 569, V. C K.
 
 BANKRUPTS. 
 
 157 
 
 Section YIII. — Bankrupts. 
 
 Ch. IV. § 8. 
 
 It is a general rule of Courts of Equity, that no person can be 
 made a party to a suit against whom no relief can be prayed ; ^ 
 and it follows, as a consequence of this rule, that no person whose 
 interest in the subject-matter of the suit has been vested by act 
 of law in another, ought to be made a defendant. Consequently, it 
 has been held, that bankrupts and insolvent debtors, whose in- 
 terests, whether legal or equitable, in the property, must have 
 devolved upon their assignees, cannot be made j^arties to suits 
 relative to any property which is affected by the bankruptcy or 
 insolvency.^ 
 
 Upon this principle, a demui-rer put in by a bankrupt, who was 
 joined as a co-defendant with his assignees, in a bill to enforce the 
 specific perfonnance of an agreement entered into by him pi'e- 
 viously to his bankruptcy, was allowed.^ 
 
 It is said by Lord Redesdale that, although a bankrupt made a 
 party to a bill touching his estate may demur to the relief, all his 
 interest being transferred to his assignees, yet it has been generally 
 imderstood, 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 the discovery, and to assist the plaintiff in obtaining proof, 
 though his answer cannot be read against his assignee ; otherwise, 
 the bankruptcy might entirely defeat the ends of justice.* This 
 opinion has given rise to much discussion, and is made the subject 
 of an elaborate judgment by Sir Thomas Plumer V, C. in the case 
 of W luticorth V. I^avis,^ in the course of which he observes that 
 " the case of Fenton v. Hughes^ lays down a broad jmnciple, viz.^ 
 that a person who has no interest, and is a mere witness against 
 whom there could be no relief j ought not to be a party; a bank- 
 rupt stands in that situation : a comj^etent witness, having no 
 interest, against whom, therefore, no relief can be had at the hear- 
 ing ; he falls precisely within that general rule." ^ He, however, 
 allowed the demurrer in tlie case before him, without determining 
 the general <piestion. 
 
 Not made 
 defendants to 
 bill praying 
 relief. 
 
 Bankrupt, if 
 made co-de- 
 fendant with 
 assignees, 
 may demur. 
 
 Whether he 
 may to bill 
 praying 
 discovery ; 
 
 Stmble, he 
 may. 
 
 1 Story Eq. PI. § 231, and cases cited in 
 notes; Todd v. Stewart, ti J. J. Marsh. 
 432. 
 
 2 Wiiitworth V. Davis, 1 Ves. & B. ^a:,, 
 547; I)elJi.lN v. Ward, 3 1*. Wms. 311,n. ; 
 Coliinn ,'. hhiriev, 1 K. & M. «3>>; .Iiidj;- 
 incnt of Lord Cottcidiatn in Hoclitort v. 
 Batlc^^.llV. 2 II. L. Ca. 408; an<l si-e Davis 
 V Sii(ll."-Jh IJeav. 321; Story Kcj. I'l.§233 
 and note; De Wolf r. Johnson, 10 Wiient. 
 3h4. Counsel for an insolvent upi)'-arrrig 
 separately Ironi his assignees not heard. 
 Edmunds v. Waugh, 1 \V. N. 7, V. (J. K. 
 
 8 Whitworth v. Davis, 1 Ves. & B. 545 ; 
 sf'c also Griffin v. Arclier, 2 Anst. 478; 
 Llovd i». Laniler, 5 Mad. 282, 288; Collet 
 V. NVi.llaston, 3 Bio. C. C. 228. 
 
 •• \A. Ued. 101; Fopping v. Van I'elt, 1 
 I loir. Ch. I'r. bib. 
 
 " 1 Ves. & B. 545. 
 
 '■' 7 Ves. 287 ; sec also Le Texier v. 
 Margravine of Anspach, 15 Ves. 159, 
 100. 
 
 ' 1 Ves & B. 64!), 550; see (iill)ert v. 
 Lewis, 1 De G , .J & S. 38; 2 .L & II. 452; 
 y Jur. N. S. 187, Story Kii- I'l. § 223, u.
 
 158 
 
 PERSONS AGAINST WHOM A SUIT MAY BE INSTITUTED. 
 
 On. IV. §S. 
 
 Wlu'u lio may 
 plead the 
 l>aiikrii|itcv. 
 
 If relief pray- 
 ed, bankrupt 
 may deimir, 
 both to dis- 
 coverA- and 
 relief; 
 
 Unless fraud 
 is charged. 
 
 Bankruptcj- 
 of defendant 
 no abate- 
 ment. 
 
 Dismissal of 
 bill bv plain- 
 tiff, after 
 defendant's 
 bankruptcy. 
 
 AVluMi tlio bankruptcy of a ilefondant does not n})pc:ir on the 
 faeo of the bill, or has ot'currcHl snbse(}uontly to the filing of the 
 bill, but before the expiration of the tinie for putting in his an- 
 swer, the ilefeiul.aiit may take the objection by way of ])lea.^ He 
 may also plead the bankruptcy of a co-defendant, even where it 
 took place after the filing of the bill.^ 
 
 A bankrupt can be made a i)arty to a bill Ibr the mere purpose 
 of discovery and injunction;'^ but there is no doubt that if he is 
 matle a party tor the i)urpose of obtaining relief against him, he 
 may demur to the bill, and that in sxich case his demurrer will pro- 
 tect him from the discovery as well as the relief; where, however, 
 fraud or collusion is charged between the bankru])t and his as- 
 signees, the bankrujit may be made a party, and he cannot demur, 
 although relief be prayed against him. Thus, where a creditor, 
 having obtained execution against the effects of his debtor, tiled a 
 bill against the debtor, against whom a commission of bankrupt 
 had issued, and the persons claiming as assignees under the com- 
 mission, charging that the commission was a contrivance to defeat 
 the plaintiff's execution, and that the debtor having, by j^ermission 
 of the i>laintiff, jDossessed part of the goods taken in execution for 
 the purj)ose of sale, instead of paying the produce to the plaintiff 
 had paid it to his assignees : a demurrer by the alleged bankrupt, 
 because he had no interest, and might be examined as a witness, 
 was overruled.* Upon the same principle, where a man had been 
 fraudulently induced by the drawer to accept bills of exchange 
 without consideration, and the drawer afterwards indorsed them 
 to others : upon a bill filed against the holder and drawer of the 
 bills of exchange, for a delivery up of the bills, and an injunction, 
 the drawer pleaded his bankruj)tcy, which took place after the bill 
 filed, in bar to the bill ; but Sir Lancelot Shadwell V. C. over- 
 ruled the plea,^ 
 
 Where a defendant becomes bankrupt after the commencement 
 of the suit, the bankruptcy is no abatement, and the plaintiff has 
 his choice, either to dismiss the bill and go in under the bank- 
 ruptcy, or to go on with the suit, making the assignees })arties.*' 
 It seems that in Knox v. Broimi!^ Lord Thurlow permitted the 
 plaintiff to dismiss his own bill without costs, because it was by the 
 
 1 Turner V. Robinson, 1 S. &S. 3; Lane 
 V. Smith, 14 JJeav. 49; .Jones v. Hinns, 10 
 Jur. N. S. ll'J, 12 W. It. 321i, M. K. ; 33 
 Beav. 362; and see Campbell v. Joyce, L. 
 K. 2 Eq. 377, V.C. W. 
 
 '^ Sergrove v. Mayhew, 2 M'N. & G. 
 97. 
 
 3 Plea of defenditnt's bankruptcy over- 
 ruled; he being the m-.inager, secretary, 
 and a member of the committee of an 
 asbociation; and discovery was required 
 
 from him in order to obtain contribution 
 from the members I'epper v. llenzell, 2 
 H. & M. 4fc0; 11 Jur. >i. S. 840. 
 
 4 King V. Martin, 2 Ves. J. 641, cited 
 Ld. Ked. 162; but see Gilbert v. Lewis, 1 
 De G., J. & b. 38; 2 J. & H. 462; y Jur. 
 N. 8. 187. 
 
 6 Mackworth v. Marshall, 3 Sim. 368. 
 G Monteith v. Taylor, 9 Ves. 615. 
 
 7 2 Bro. C. C. 186.
 
 BANKRUPTS. 
 
 159 
 
 act of the defendant himself that the object of the suit was gone. 
 In a subsequent case, however, of Rutherford v. Miller^ the Court 
 of Exchequer refused to make such an order without costs ; and in 
 Monteith v. Taylor,^ where a motion was made on behalf of the 
 defendant, who had become bankrupt, to dismiss the plaintiff's bill 
 with costs, for want of prosecution, Lord Eldon, although he at 
 first entertained a doubt whether he could make such an order with 
 costs, afterwards expressed an opinion against the plaintiff upon 
 that point, upon which the plaintiff submitted to give the usual 
 i;ndertaking to speed the cause ; and in the case of Blachmore v. 
 Bmith^ Lord Cottenham, after referring to the order made in the 
 last-mentioned case, in the Registrars' book, held, that if the bill 
 were dismissed it must be with costs. 
 
 It api)ears from the two cases last referred to, that a defendant 
 may, notwithstanding he has become bankrupt, move to dismiss 
 the plaintiff's bill for want of jirosecution ; and it is the j^ractice, 
 on such a motion, to dismiss the bUl with costs.* 
 
 After what has been said, it is scarcely necessary to observe, 
 that where a party who is a defendant to a suit becomes bankruj^t, 
 it will be necessary for the plaintiff, if he proceeds with the suit, 
 to bring the assignees before the Court by amendment or a supple- 
 mental order ; ^ and it has been decided, that where the assignee 
 of a bankrupt has been already before the Court as a .defendant, 
 and such assignee die or is removed, and a new assignee is ap- 
 pointed in his stead, the suit abates, and an order to carry on the 
 proceedings against such new assignee must be obtained in like 
 manner as against the original assignee.® 
 
 Where a bill has been filed against a defendant who afterwards 
 became bankrupt, and a su])plemental bill was in consequence filed 
 against liis assignees, tlie evidence taken in the original cause pre- 
 \ iuusly to the bankruptcy was allowed to be read at the hearing 
 
 Cn. IV. § 8. 
 
 1 2 Anst. 458. 
 
 2 9 Ves. 615. 
 
 « 1 .M'N. & G. 80. 
 
 * liliickiiiore v. Smith, uhi sup. ; see 
 also liob.-on V. Karl of Devon, '.i Srn. & 
 G. 227; Levi r. Heritage, 20 Jicav. 560, 
 which were cilscs of insolvent debtors; 
 overruling Blunshard c. Drew, lU Sim. 
 240; sfu, howuver, Ki^inlmll r. Walduck, 
 1 Sm. & G. A|)|). 27; lb .Jur. 6!». 
 
 1 15 k 16 Vic. c. 86, §§ 52, 63; Lash v. 
 Miller, 4 De G., .M. & G. 841 ; 1 .)ur. N. S. 
 457; Storm v. I^avenport, 1 Samlf. Ch. 
 135; Storv Ko. I'l. § -'{42, and iioti!; Sedg- 
 wick r. Clevilund, 7 I'aige, 2'.i0. It is to 
 lie borne in minri, that there is a ditfcrence 
 in reference to tliis jmint between cases of 
 voluntary alienation, anil cases ot invol- 
 untary alienatirm, as by insolvency or 
 biinkruptcy ol the defendant. Story lui. 
 ri. 5§ 342, 351, tt seq. This distinction is 
 
 fully discussed in Sedgwick v. Cleveland, 
 7 I'aige, 290-292; see also note to Story 
 Eq. 1*1. § 342. After the assignees have 
 been made parties, the bankrupt appears 
 to be treated as out of the suit; .see Kob- 
 ertsoii r. Southgate, 5 Hare, 223; Stahl- 
 schmidt ('. Lett, ib. 595; and see Seton, 
 1160. For forms of supplemental order, 
 see Seton, 1165, Nos. 5, 6; and for tbnns 
 of motion jiaper and petition, see Vol. 
 IlL; and see mite, p. 64. 
 
 '' Gordon v. .lesson, 16 Beav. 440. The 
 157th section of tlie Bankrupt Act, 12 & 13 
 Vic. c. 106, referred to (iiitc, y. 65, ajiplies 
 only, it would seem, to i)l:iiiiti(ls; see 
 Gordon v. .lesson, uOi sup. ; and st.'c IJain- 
 brigge v. Blair, Younge, 386; Meiidhain 
 V. Kohinson, 1 M. & K. 217; Miin v. Kick- 
 etts, 7 Beav. 484; 1 I'hil. 617; (decided 
 on similar clause in tornier Bankrupt Act), 
 and cases there cited. 
 
 Bankrupt 
 ma}' move to 
 dismiss for 
 want of prose- 
 cution. 
 
 Assignees are 
 brought be- 
 fore the Court 
 by supple- 
 mental 
 proceeding. 
 Death or 
 removal of 
 assignee : 
 Order to carry 
 on against 
 successor 
 must be 
 obtained. 
 
 Evidence 
 taken in 
 original cause 
 betbre the 
 adjudication 
 may be read 
 against 
 assignees.
 
 IGO 
 
 rEKSOXS AGAINST WHOM A SUIT MAY BE INSTITUTED. 
 
 On. IV. 5!i. 
 
 Creditor of in- 
 solvont inicht 
 fiie executor 
 of assignee, 
 where no 
 successor 
 appointed. 
 
 Costs of 
 assignees iu 
 foreclosure 
 suits. 
 
 nixninst the assignees ; 1ml wliere it a])peare(l that some of tlie 
 witnesses in the canse had been exaniincd after the commission 
 issued, and before the supjik-niental eaiise was at issue, an objec- 
 tion to reading their (U'[)ositions was aUowed ; but the objection 
 was overi'uled in so far as it extended to Ihe witnesses wlio had 
 been jireviously examined.^ 
 
 It has been hehl that, on the death of tlie assignee of an 
 insolvent's estate, where no new assignee has been appointed, a 
 party having a demand against the insolvent, but not having 
 proved under the insolvency, may sue the executors of the de- 
 ceased assignee.^ 
 
 It may here be observed that, after some difference of opinion 
 uj)on the subject, it has been determined, that in foreclosure suits, 
 where assignees are made parties as defendants, in respect of 
 the equity of redemption, they are not entitled to their costs from 
 the plaintiff, even though they may have received no assets of the 
 bankru])t wherewith to pay them.^ 
 
 SECTiOiSr IX. — Infants. 
 
 May be 
 defendants. 
 
 Not usually 
 described as 
 infants in bill. 
 
 Defend by 
 guardian. 
 
 Infants as well as adults may, as we have seen,* be made defend- 
 ants to suits in Equity ; and, in such cases, it is not necessary that 
 any other person should be joined with them in the bill ; nor is it 
 usual for tlie plaintiff to describe them as infants in his bill, unless 
 any question in the suit turns upon the fact of their infancy. 
 
 Although it is not necessary that, in bringing a bill against in- 
 fants, the plaintiff, as in the case of married women, should join 
 any other person with them, yet they are not permitted, on ac- 
 count of their supposed Avant of capacity, to defend themselves ; 
 and tiierefore, where a defendant to a suit, or the respondent to a 
 petition,^ is an infant, the Court will appoint a proper person, who 
 ought not to be a mere volunteer,*^ to ])\xt in his defence for him, 
 and generally to act on his belialf in the conduct and management 
 of the case.' The person so appointed is called "the guardian 
 of the infant ; " and is generally styled " the guardian ad litem^'' 
 
 1 Kitchens v. Congreve, 4 Sim. 420. 
 
 2 I'ulcherf. Howell, 11 Sim. 100; and 
 see anit^ p. G2. 
 
 3 Appleuy /•. Duke, 1 I'hil. 272; Clarke 
 V. Wiliiiot,' i/^. 270; Ford v. Wliite, 16 
 Beiiv. 120, uiid cases tiieru cited; and see 
 Fori r. Ohestertield, 10 I5eav. 510; and 
 see also/>o«/. Chap. XVI., Diiclaivitrs. 
 
 ■» Ardt, p. lyo. 
 
 5 Hk. Barrington, 27 Beav. 272; Rt 
 "Ward, 2 Gifl". 122; 6 Jur. N. S. 441; Hi, 
 
 Duke of Cleveland's Harte Estates, 1 Dr. 
 & Sni. JO. 
 
 « Foster v. Cautley, 10 Hare, App. 24 ; 
 17 Jur. 370. It is usual to appoint the 
 nearest relative of an infant defenilant 
 as hib guardian ad lilern. Bank of United 
 St-.ites V. Kitche, 8 I'eters, 128. 
 
 ' A decree against an adult defendant, 
 as if an infunt, was held not to bind him. 
 Snow V. Hole, 15 Sm. 161; Green v. Bad- 
 ley, 7 Beav. 271.
 
 INFANTS. 
 
 161 
 
 to distinguish liim from the guardian of the person or of the 
 estate.^ 
 
 Formerly it was usual, u2)on the appointment of a guardian ad' 
 litem, for the infant to ai)pear personally in Court.- This is no 
 longer necessary ; ^ but the order may be obtained upon motion 
 of course, or ujjon petition of course, presented at the Rolls in the 
 name of the infant ; the application being supported by an affidavit 
 of the infont's solicitor, that the proposed guardian has no interest 
 in the matters in question in the suit, adverse to that of the infant ; 
 and it must also be proved by the same affidavit, or by that of 
 some other person, if tlie solicitor is not sufficiently acquainted 
 with the proposed guardian, that he is a fit and pro])er person to 
 be appointed.* A co-defendant may be appointed, if he has no 
 adverse interest ; ^ but the plaintifi; a married woman, or a person 
 out of the jurisdiction,^ cannot be appointed. 
 
 Ch. IV. § 9. 
 
 Who ineli- 
 gible to be 
 guardian. 
 
 1 In a suit against an infant, process 
 should be served upon him, and a guar- 
 dian ad litem appointeil by the Court. 
 Carriiigton v. Brents, 1 McLean, 17; Wal- 
 ren v. Ihillett, 1 A\a. .370; Graham v. Sub- 
 let!, 6 J. .1. Marsh. 45. 
 
 In New York, the appearance of an 
 infant is entered by his guardian ad Utein, 
 who is appointed by the Court on petition 
 for that purpose. 1 Barb. Ch. Pr. 83. 
 See Knickerbocker v. De Freest, 2 Paige, 
 304;' Grant ?•. Van Schoonhoven, 9 I'aise, 
 250; Story Kq. PI. § 70; Baiita v. Cal- 
 hoon, 2 X. K. Marsh. 1G7; Cato v. Kasly, 
 2 Stewart, 214. In Alabama, it is essential 
 to the action of a guardian ad litem that 
 there should be a decree of the Court 
 appointing him such guardian. Darring- 
 ton V. Borland, .3 Porter, 10. 
 
 Infants above the age of fourteen years 
 should be consulted in the apiwintment 
 of a guardian "'/ litem, if that course 
 would not be attemled with too much 
 trouble or expense. Walren v. Hallett, 1 
 Ala. 379. Courts may appoint guardians 
 ad li/eiii to non-resiijent intjfints. Walren 
 V. Malleit, 1 Ala. 379; (Jraliam v. Sublett, 
 6 .J. J. Marsh. 45; Smith v. Palmer, 3 
 Beav. 10. And they may provide rea- 
 sonable compeu'^ation for sucli guardians. 
 Walren v. Hallett, 1 Ala. 379; (iraham v. 
 Sublett, J. .1. .Marsh. 4-0; see Gott v. 
 Cook, 7 Paige, 523. It is error to enter a 
 decree against Infant defendimts without 
 assigning thum a guariliaii ad litem. Rob- 
 erts V. Stanton, 2 .Munf 129; Irons v. 
 Crist. 3 A. K. .Marsh. 143; St Clair v. 
 Smith, 3 Ham. 303: Crockett v. Drew, 5 
 fira^', 399; Swan r. Ilortoii, 14 Gray, 179; 
 J'>wmg f. llighbee, 7 Ham. I'.iH; see 
 Harby r. liichnrdsoii, 3 .1. .1. Mar-h. .'J44; 
 Beverley v. .Milli-r, Munf 99; Cravens 
 V. Dyer, 1 Lilt. 153; Shields v. Bryant, 3 
 Bibb, 525. The guardian must have 
 accepted the a[)pointnient, and that (act 
 should appear ol record. Daniel v. llan- 
 nagiin, 5 .1. J. Marsh. 49. 
 vol.. I. 
 
 Where infant defendants had not been 
 served with process, but upon inspection 
 of the record it appeared, that, upon 
 their motion, a guardinn ad litem had 
 been appointed, who ))roceeded in the 
 cause, the Court held, that a decree 
 against the infants was not void, and 
 therefore could not be impeached in a col- 
 lateral suit. Day v. Kerr, 7 Missou. 426, 
 It is not necessary to serve a copy of 
 a bill in Kcpiity, on a guardian ad (item, 
 after his ajjp lintment. Jones v. Drake, 
 2 Ilayw. 237. 
 
 The Court will not appoint a person 
 guardian ad litem for an infant defend- 
 ant, on the nomination of the plaintiff. 
 Knickerbocker i'. De Freest, 2 Paige, 304. 
 An infant defendant at law must appear 
 1>3' guarilian; he cannot appear or plead 
 by attorney. Knapp i'. Crosbv, 1 I^Iass. 
 479; .Miles" r. Boyden, 3 Pick. 2*13; Alder- 
 man V. Tirrell, 8 ,Tohn. 418; Bedell v. 
 Lewis, 4 J. J. Marsh. 5G2; JelTrie v. 
 liobideaux, 3 Mis. 33 ; Clark v. Turner, 1 
 Root, 200; Comstock v. Carr, G Wend. 
 52G. 
 
 - Crabbe v. Monbcry, 5 De G. & S., 
 347 ; Bcnison v. Wortley, ib. 648. 
 
 3 See Drant v. Vause. 2 Y. & C. C. C. 
 524; 7 Jur. 637, L. C: Kgremont v. F.gre- 
 mont, 2 De G., M & G. 730; 17 Jur. 
 55; Foster v. Cautlev, 10 Hare App. 24; 
 17 Jur. 370; Storr i\ Pannell, 1 W. K. 
 209, V. C. S. 
 
 ■1 Braithwaite's Pr. 40, 47. For form of 
 order, see Seton, 1250; and for forms of 
 niolion ])aper, petition, and iilhdavit, see 
 Vol. HI. Where the infant is a res])on- 
 dent to a petition, the applicalion must be 
 supported by an aliiilavit that the petition 
 has been .servel on the inlant. AV Willau, 
 9 W. U. 689, n. 
 
 6 See Boiili> Id v. Grant, U W. H. 275, 
 M. K. ; Newman v. Sclfe, i/j. 7G4, .M. U ; 
 Anon., 9 Hare App. 27. 
 
 Anon., 18 Jur. 770, V. C. W. 
 
 11
 
 102 
 
 TERSONS AGAINST AVIIOM A SUIT MAY BE INSTITUTED. 
 
 Cii. IV. 5 0. 
 
 Apponnuu'o 
 should lie 
 first ontcn"il. 
 
 Applioatioii, 
 how niado: 
 at the 
 instance of 
 pliiintitV. 
 
 Evidence in 
 support. 
 
 Who 
 appointed. 
 
 Where infant 
 out of the 
 jurisdiction. 
 
 An M-i )]>(.':! rniu'O lor the infhiit slu)uUl bo oiitcrecl at the Record 
 ami Writ Clerks' Ollico, In'loiv the npiilicatioii is made; but no 
 other step in the suit, on bi'liall" oC the inrant, will be re_nular, till 
 :l guardian ad litem, has been a])])i»inted.^ 
 
 If no application for tlie a])])ointuient ol" a uuanlian is made on 
 belialf of llie infant, the plaintiff may, if default is made by the 
 infant in appearing or answering,- a])])ly to the Court that a solici- 
 tor may be appointed his guardian. The a])plication is made by 
 motion, of which notice^ must be served upon or left at the 
 dwelling-house of the person with whom, or under whose care, the 
 infant was at the time of serving the bill,'' and if such j)erson is 
 not the father, or guardian, notice must also be served upon the 
 father or guardian. Where the infant's father Avas dead, service 
 of the notice at the house of the infant's mother and step-father 
 was lield sufficient ; '" and where the i)laintiff was unable to dis- 
 cover where the parents lived, service Avas deemed sufficient on 
 the head of a college, of which the infant was an under-graduate." 
 If, however, an appearance has been entered for the infant, service 
 uj^on the solicitor is sufficient.'' Upon the motion, the Court 
 must be satisfied that the bill has been duly served, and that the 
 notice of the application was served after the ex])iration of the 
 time allowed for apjjearing or answering, and at least six clear 
 days before the day in such notice named for hearing the applica- 
 tion ; ^ but the Court, on hearing the ap2)lication, may dispense 
 with service on the father or guardian.^ The solicitor to the 
 Suitors' Fee Fund is the person usually appointed.^" 
 
 If the infant is out of the jurisdiction, the same course must be 
 followed ; ■'^ but where he had no substantial interest, and had been 
 served Avith the l)ill, the Court dispensed Avitli service of notice 
 of the apjdication.-'- 
 
 1 Lushington v. Sewell, 6 Mad. 28. An 
 appearance by the plaintiff for an infant 
 defendant is irregular, and of no validity, 
 Ord. X. 5 ; Leese v. Knight, 8 Jur. N. S. 
 1006; 10 W. K. 711, V. (J. K. 
 
 2 If no answer is required from the 
 infant (as is usually the practice), and no 
 voluntary answer is put in, tiie defendant 
 is considered, after the expiration of the 
 time for answering voluntaril}', to be in 
 default. Bentley v. Robinson, 9 Hare 
 App. 76. / 
 
 '•> l'"or form of notice of motion, see Vol. 
 III. 
 
 4 Taylor v. Ansley, 9 Jur. 1055, V. C. 
 K. B. ; Christie ». Cameron, 2 .lur. N. S. 
 635, V. C. W.; and see Ord. VII. 3. 
 
 6 Hitch V. AVells, 8 Beav. 576. 
 
 o Christie v. Cameron, uiji svjk 
 
 "^ Cookson V. I>ee, 15 Sm. 302; Bentley 
 V. Robinson, 9 Hare App. 76. 
 
 8 For form of aflidavit in support of 
 motion, see Vol. III. 
 
 8 Ord. VII. 8; see Leese v. Knight, 8 
 Jur. N. S. lOOG; 10 W. R. 711, V. (J. K. 
 For form of order, sej Seton, 1251. 
 
 1" Thomas v. Thomas, 7 Beav. 47; 
 Shei)pHr(i V. Harris, 10 Jur. 24, V. C. K. 
 B. Where he is api)0!nted, the Court 
 provides for his costs, Ord. XL. 4; usually 
 directing the plaintiff to pay tliem, and 
 add them to his own. Harris r. Hamljn, 
 3 De C. & S. 470; 14 Jur. 55; Fraser v. 
 Thompson, 1 Giif. 337; 4 De G. & J. 659; 
 but where there is property of the infant's 
 with which the Court can deal, it will, it 
 seems, direct the costs to be paid out of it. 
 Robinson v. Aston, 9 Jur. 224, V. C. K. B. 
 
 11 O'Brien v. Maitland, 10 W. R. 275, 
 L. C. 
 
 12 Lambert v. Turner, 10 W. R. 335, 
 V. C. K ; Turner v. Sowden, 10 Jur. N. 
 S. 1122; 13 W. K. 66, V. C. K.; 2 Dr. & 
 Sm. 265, nom. Turner v. Snowdon.
 
 INFANTS. 
 
 163 
 
 If the guardian dies jjending the suit, a new guardian must be 
 appointed in his phice ; this is done in the same manner as the 
 original guardian Avas appointed, and upon similar evidence.^ All 
 orders appointing guardians must be left at the Record and Writ 
 Clerks' Office for entry/^ 
 
 Where the infont is a married woman, it is nevertheless neces- 
 sary that she should defend by her guardian : though it appears 
 to be the jjractice to appoint her husband to be her guardian 
 where he is a defendant Avith her, and they intend to defend 
 jointly.'^ 
 
 The duty of the guardian is to put in the j^roper defence for the 
 infant ; and it seems that he is responsible for the propriety and con- 
 duct of such defence ; * and if he puts in an answer which is scan- 
 dalous or impertinent, he is liable for the costs of it. Sometimes 
 the guardian is ordered or decreed to perform a duty on belialf 
 of the infant : his refusal or neglect to do which will subject him 
 to the censure of the Court.^ 
 
 If the guardian of an infant defendant, or the next friend of an 
 infant jilaintiff, does not do his duty, or other sufficient ground be 
 made out, the Court Avill remove him.^ It was said by Sir John 
 Leach V. C.,'' that infants are as much bound by the conduct of 
 their solicitor, as adults ; thus, an issue devisamt vel non may, it 
 seems, be waived on the jjart of the infant.^ And so, although 
 the Court usually ^\n\\ not, where infants are concerned, make a 
 decree by consent, Avithout an inquiry Avhether it is for their bene- 
 fit,® yet Avhen once a decree has been pronounced Avithout that 
 
 tlie matters in question, to the care and 
 protection of the Court. The answer in 
 such cases generally is, that tlie infant 
 knows nothing of tlic matter, and there- 
 fore neither admits nor denies tiic diaraes, 
 but leaves tlie plaintilf to prove tliem as 
 he shall he advised, and throws himself 
 upon the protection of the Court. Dow 
 V. .lewell, 21 N. H. 487, per Gilchrist C J. 
 
 '' Ilinde, 241. Except in case of gross 
 misconduct, a guardian ud litem Avill not 
 be ordered to pay the costs of a suit which 
 he has defended nnsuccessfullv. Murgau 
 V. lAIcrgan, 11 Jur. N. S. 233, V. C. K., 
 
 « Kussell V. Sharpe, 1 ■). & W. 482. 
 The application for this purpose may be 
 made by summons; for forms, see Vol. 
 III.; and see ante, |) 71. 
 
 7 Tillotson V. Harf^ravc, 3 Mad. 494; 
 see Morrison v. Morrison, 4 M. & C. 216, 
 220. 
 
 8 Levy V. Levy, 3 Mad. 245. 
 Dow V. Jewell, 21 N. ]I. 480, 487; 
 
 Mills ).'. I)enni.s, 3 .lohn. Ch. 308; Mondey 
 r. lAI.indey, 1 V. & 15. 223. Ncilher a 
 default nor a decree jiro amfifgo can bo 
 taken a;;iiiist an infant, luios i\ Capps. 
 12 III. 2i^)!'i. \ decree! cannot be enlerea 
 against an infant without proof to sustain 
 the case. Uamilton v. Gilmau, 12 111. 200. 
 
 Ch. IV. § 9. 
 
 V. ., '- 
 
 On death of 
 guardian 
 pendente lite, 
 new guardian 
 must be 
 appointed. 
 AVhere infant 
 a married 
 woman. 
 
 Guardian's 
 duty. 
 
 Guardian 
 may be 
 removed for 
 neglect. 
 Infants bound 
 by acts of 
 guardian. 
 
 1 Ante, pp. 100, 101. 
 
 2 Uraithwaite's I'r. 47. 
 
 3 Column V. Nortlicotc, 2 Hare, 147; 7 
 Jur. 528, and ca^es there referred to. 
 
 ■* Knickerbocker i:. I)e l-'reest, 2 Paige, 
 304. It is the special duty of the guardian 
 adlitem to submit to the Court, for its con- 
 sideration and decision, ever}' question 
 involving the rights of the infant affeeti'd 
 by the suit. Ibid. ; Dow v. Jewell, 21 N. II. 
 486, 487, and to make a vigorous defence 
 of the interests of the infant. Sconce v. 
 Whitney, 12 111. 1.50; Enos v. Capps, 12 
 III. 25.0. If the guardian ad litem neg- 
 lects his dutv to the infant, whereby such 
 infant sustains an injury, the guardian 
 will not oidy be puiii-hed for tiis neglect, 
 but he will also be liable to the infant for 
 all the dani;igeH he may have sustained 
 thereby. Knickerbocker v. Do Freest, 
 supra. 
 
 Where a person consents to act as 
 guardian ad litem, he must put in a pleiid- 
 mg; and is not to stop the plaintilf by 
 •neglecting it, m"-rely because ho thinks 
 his wards are ini|iroj)er or iinneces-a- 
 ry parties. I'armers' l.oan and Trust Co. 
 V. Keed. 3 Edw. Ch. 414. The infint's 
 answer is generally confined to a mere 
 Bubmiggion of his righu and interests in
 
 1()4 
 
 TEKSONS AGAINST ■NVIIOJI A SUIT MAY BE INSTITUTED. 
 
 I'll. IV. §!1. 
 
 Infant bound 
 by decree; 
 unles-s in 
 ciisc.^oflraiid, 
 collusion, or 
 error. 
 
 How decree 
 impeached in 
 such case. 
 
 What is error 
 in a decree 
 against 
 infant. 
 
 Parol demur- 
 ring at Law; 
 
 provious sto]>, it is oonsidiMvd ;is of the same autliority as if sncli 
 ai> imjuiry had ln'cii dirccti'il, and a eertilicatc thorou))()ii made tliat 
 it Windd be i'oY their beiielit. In tlie same manner, an ordei* for 
 maintenanee, tliouuli nsually ma(U' after an inijuiry, if made witli- 
 out wonld be eipially binding.^ By a recent order,^ it is provided 
 that any eon.sont by llie guardian to any mode of taking evidence 
 or other 2>roeedure, shall, if given with tlie sanction of the Court 
 or Judge in Chambers, have the same eifect as if the infant were 
 not inider disability, and had given such consent. 
 
 An infant defendant is as much bound by a decree in Equity as 
 a ])erson of full age ; therefore, if there be an absolute decree 
 made against a defendant who is under age, he will not be ])er- 
 mitted to dispiTte it, unless ujion the same grounds as an adult 
 might have disputed it ; such as fraud, collusion, or error. 
 
 To im2:)each a decree on the ground of fi-aud or collusion, the 
 infant may j)roceed, cither by a bill of review, or sup] )1 omental 
 bill in the nature of a bill of review; or he may so proceed by 
 original bill. He may also impeach a decree, on the ground of 
 error, by original bill ; and he is not obliged, for that purpose, to 
 wait till he has attained twenty-one.^ 
 
 Among the errors that liave been allowed as sufficient grounds 
 on which to impeach a decree against an infant, is the circum- 
 stance that, in a suit for the administration of assets against an 
 infant heir, a sale of the real estate has been decreed before a 
 sufficient account has been taken of the personal estate.^ And so, if 
 an account were to be directed against an infant in respect of his 
 receipts and payments during his minority, such a direction would 
 be erroneous.*^ Another- ground of error for which a decree against 
 an inftmt may be impeached is, that it does not give the infant a 
 day after his coming of age to show cause against it, in cases 
 where he is entitled to such indulgence.^ 
 
 It was an established rule at Common Law, that in all actions 
 for debt against infant heii's by specialty creditors of their an- 
 cestors, either party Avas entitled to pray that the parol might 
 demur; that is, that the proceedings might be stayed until the 
 heir had attained his full as^e? This rule was the foundation of a 
 
 1 Wall V. Busliby, 1 Bro. C. C. 484, 488; 
 per Gilchrist C. J. in Dow v. Jewell, 21 
 N. II. 487; and see Brook v. Mostvn, 10 
 Jur. N. S 554, M. K. ; ib. 1114; 1.3 "W. K. 
 115, L. JJ., 3.3 Beav. 457; 2 De G. & S. 
 .373, 417; as to compromises with the 
 Court's sanction, where infants are in- 
 terested. 
 
 2 Ord. 5 Feb., 1861, r. 24. For form of 
 summons to obtain the Judge's sanction, 
 see Vol. III. 
 
 3 Richmond v. Taylcur, 1 P. Wms. 737 ; 
 Brook V. Mostvn, iibi sup. 
 
 4 Bennett r."llamill, 2 Sch. & Lef. 56G. 
 
 5 llindmarsli v. Soutligate, 3 Russ. 324, 
 327; see Stott v. Meanock, 10 W. R. 605, 
 bis, L. JJ. 
 
 6 Bennett v. Hamill, ubi sup. ; 2 Kent 
 (11th e<l.), 245, 246. 
 
 V 3 Bia. Com. 300; Plasket v. Beebv, 4 
 East, 485; Com. Dig. Enfant, (D) 3; ib. 
 Pleas, 2 (E) 3.
 
 INFANTS. 
 
 165 
 
 similar practice in Equity in like cases ; ^ so that, when any suit 
 was instituted, either by a specialty creditor or by a simple con- 
 tract creditor, tlie equity of which depended upon the legal liability 
 of the heir to pay out of descended assets the specialty debts of 
 his ancestor, no relief could be obtained against the heir during 
 his minority, but the decree contained a direction for liberty to 
 apply when the heir should have atttained his full age ; acconi- 
 })anied, in the case of a suit by a simple contract creditor, with a 
 declaration of the right to have the assets marshalled. Courts of 
 Equity did not, however, confine this species of protection to. 
 cases precisely similar to those in which the parol could demur at 
 LaAV ; but, by a kind of analogy, they adopted a second rule, by 
 which, in cases of foreclosure and partition, and in all cases in 
 which the real estates of an infant were to be sold or conveyed 
 under a decree of the Court, and consequently the execution of 
 the conveyance was necessarily deferred, the infant had an oppor- 
 tunity, after attaining twenty-one, to show cause against the 
 decree.^ For this purpose, a jirovision was inserted in the decree, 
 giving the infant a day to show cause against it within a certain 
 time after he came of age.'' The Avords of the decree in such cases 
 were as follow : " And this decree is to be binding on the defend- 
 ant, the infant, unless he, on being served, after he shall have 
 attained his age of twenty-one years, with siibjocena to show cause 
 against this decree, shall, within six months fi'om the service of 
 such !^uhp<x,na^ show unto this Court good cause to the contrary." * 
 Tim insertion of this clause in a decree for a conveyance by an 
 infant of his estate, was so strictly insisted upon in all cases, that 
 the omission of it has been considered as an error in the decree.^ 
 
 By the 11 Geo. IV. & 1 Will. IV. c. 47, the rule as to the 
 parol demurring was abolished, and the cases in which the clause 
 giving the infant a day to show cause ought to be introduced, 
 were materially lessened in number;*^ for by the 10th section of 
 that statute, it is enacted, that from and after the passing of the 
 
 Cn. IV. § 9. 
 
 Rule adopted 
 in Equity; 
 
 1 Chaj.lin r. Clinplin, 3 P. Wins. 3GS; 
 LeclimcTC v. Hrasicr, 2 J. & W. 2h7, 290; 
 Scartli r. CoUoii, Ca. t. Talb. 108. 
 
 - See I'rice «. Carver, 3 M. & C. 1C2, 
 103. 
 
 3 See Unrri.s v. Youman, 1 TIo(T. Cli. 
 178; Wilkinson v. Oliver, 4 Hen. & M. 
 451; ShicM-' r. Hrvnnt. 3 IJibb, .025; 
 Dow r. .F.wi-11,21 N. M. 470; Aiiili;r.«on /•. 
 Irvine, 11 U. Mon. 341; Cole v. Miller, 32 
 MisM. (3 Geo.) 89. Where ii deeree a^jainst 
 an iTifant 'lefendant permits him to .show 
 c.iuse witliin si certain timealt<r he eomes 
 of ajie, why the dcer<>'! .•should not he eii- 
 foreed, he cani ot u^.stiil the dei-ree in any 
 mtinner he may choo"e, wilhont ref;ard to 
 the curse of practice yiur.^ued by mlult 
 defendants, but he must ajiply to the 
 
 Court for leave and direction. Field v. 
 Williamson, 4 Sandf. Ch. G13. 
 
 ^ Seton, G85, No. 2; see Dow v. Jewell, 
 21 N. II. 491. 
 
 ^ Kiihmond v. Tayleur, 1 P. Wms. 737. 
 An absolute decree against an infant, 
 without givinp him day after he comes 
 of iipe to show cause a^':iinsl it, will be 
 reversed. IJeeler v. Hullitt, 4 Hibb, 11 
 Passniore v. Moore, 1 J. J. Marsh, r/.il 
 .lones V. Adair, 4 .1. .1. IMarsh. 220 
 Arnold v. Voorhics, 4 .I.J. Marsh. 507 
 Searey v. .Morgan, 4 IJibb. 90; Writ'lit «, 
 Miller, 4 Barb. (,S. C.) 000; Collin « 
 Heath, Met. 70. 
 
 See 2 Macpherson (Lond. ed. 1842), 
 300, 301, 411. 
 
 and extended 
 to analogous 
 cases. 
 
 Day given 
 infant to show 
 
 Parol demur- 
 rer abolished.
 
 lOG 
 
 PERSONS AGAINST -WllO^VI A SUTT IMAY BE INSTITUTED. 
 
 On. IV. §0. 
 
 AYhere day 
 still given to 
 show cause. 
 
 EflFect of 
 Trustee Act, 
 1850, § 30, in 
 cases where 
 conveyance 
 required from 
 infant. 
 
 In a partition 
 salt. 
 
 Act, wlicro ;iny Mct'uMi, sui(, or otlu'v pi'Dcccdiiiu; lor (lie j)nyn\cnt 
 of ilobts, or any otlu>r |mr])Osi', slinU be coiniiu'iiced or jjrosocuted 
 by or against any iniant under the ajj^e of twenty-one years, either 
 alone or touvtlier with any other person or persons, the jiarol shall 
 not demur; but sueh aetion, suit, or other ])roeeedinL;' shall be 
 proseeuted and earried on in the same manner, and as etfectually, 
 as any aetion or suit coidd before the passing of tlie Act be carried 
 on or jn'osecutcd against any infant, where, according to law, the 
 parol did not demur; and by the 11th section, the Court was 
 enabled, in suits for the payment of the debts of a deceased per- 
 son, to compel an infant to convey.'^ 
 
 One effect of this power was, that in decrees for the sale of 
 estates for the payment of debts, the jirovision, giving the infant 
 a day to show cause, Avas omitted. It appears, however, that 
 although the power given by the statute was, as to these particular 
 suits for the payment of debts, considered a sufficient reason for 
 omitting the clause in question, yet, in all other decrees, where a 
 conveyance was required from an infxnt, the law remained as 
 before ; and the joractice of giving the infint a day to show cause, 
 therefore, remained the same.*^ 
 
 It seems to have been intended by the 30th section of the 
 Trustee Act, 1850,^ to obviate the necessity of inserting in such 
 decrees the clause giving the infant a day to show cause ; * that 
 section extends to all cases where a decree for the conveyance 
 of lands may be made by a Court of Equity ; aiwl Avith respect 
 to all such cases, it enables the Court to carry its decrees into 
 effect, by orders vesting the estates and interests of infants and 
 other i')ersons under legal disabilities, in the persons to Avhom the 
 conveyance is to be made. Accordingly, in the case of Boxora v. 
 Wright^^ which was a partition suit. Sir J. L. Knight Bruce V. C. 
 made an order, declaring that, after the partition should have 
 been made, an infant defendant would be a trustee within the 
 Trustee Act as to the other parties. The effect of such an order 
 is, that the aggregate estate may be vested according to the par- 
 tition sanctioned by the Court, instead of postponing the con- 
 veyances until the infant shall have attained twenty-one, and 
 shall have had opportunity of showing cause against the decree. 
 And it is presumed that, in all cases where a conveyance is re- 
 
 1 Brook V. Smith, 2 R. & M. 73 ; and 
 the infant may be attached. Thomas v. 
 Gwynne, 8 Beav. 312. 
 
 2 Price V. Carver, 3 M. & G. 157, 163; 
 and .'ee Scholofield v. Heafiekl, 7 Sim. 
 669; Ball v. Harris, 8 Sim. 408; 1 Jur. 
 706; Afld. 4 M. & C. 264; 3 .lur. 140; 
 Hutton V. Mayne, 8 .Jo. & Lat. 58C; Jones 
 V. Harris, 3 Ir. Eq. 65. 
 
 3 13 & 14 Vic. c. 60. 
 
 * Headlam's Trustee Acts, p. 59. 
 
 fi 4 De G. & S. 265; 15 .Jur. 981; see 
 also Sheplierd v. Churchill, 25 Beav. 21 ; 
 Re Bloomar, 2 I)e G. & J. 88; Singleton 
 V. Hopkins, 1 .Jur. N. S. 1199, V. C. S.; 
 .see, however, Hancock v. Hancock, Seton, 
 577, 822.
 
 IXFAXTS. 
 
 167 
 
 quired from an infant, the section above referred to will apply, 
 and it will no longer be necessary to insert in the decree the 
 direction, giving the infant a day to show cause after he shall have 
 attained twenty-one. 
 
 Besides the cases in which a conveyance was required from an 
 infant, there was one case in which the decree was not made 
 absolute against hun until he had attained twenty-one, namely, 
 the case of a legal foreclosure ; ^ and it appears that, in this case, 
 it is still necessary to insert in the decree a clause allowing the 
 infont (six months after he comes of age) to show cause against 
 the decree.2 It is to be observed, however, that, in cases of fore- 
 closure, the only cause which can be shown by the defendant is 
 error in the decree ; and it has been held, that he may not imravel 
 the account, nor is he so much as entitled to redeem the mortgage 
 by paying what is due.^ 
 
 The clause giving the infant a day to show cause against a 
 decree of foreclosure after attaining twenty-one, must be inserted 
 in the order for making the decree absolute, as well as in the 
 original decree; and in Williamso)i v. Gordon,* an order was 
 made, upon motion, for varying a decree, in which the clause had 
 been omitted, by directing its insertion. 
 
 It was said by the Court in Hoofh v. Jiich,^ that where there is 
 an infant defendant to a bill of foreclosure, the proper way is to 
 decree the lands to be sold to pay the debt, and that such a sale 
 would bind the infont ; but in Goodier v. Ashton,^ Sir William 
 Grant ^I. R. said that the modern practice was to foreclose infants, 
 and refused to refer it to the Master to inquire whether a sale 
 would be for the benefit of tlie infant. In a subsequent case, how- 
 ever. Lord P^ldou said,^ it would be too much to let an infant be 
 foreclosed when, if the mortgagee would consent to a sale, a sur- 
 
 suhpccna. 2 Kent (llth ed.), 245 ; Jackson 
 V. Turner, 5 Leigh, 119; Milh r. Dennis, 
 3. John. Cii. 367; Dow v. Jewell, 21 N. 
 II. 470, 491. Unless the rule is dispensed 
 with by Statute regulations in speeilic 
 instances, as in partition and forcclKsure, 
 it is the rule in Xew York, that an infant 
 is to have six months aficr coniinj^ of age, 
 to show cause against a decree. This 
 must he done whenever the inheritance is 
 bound. I'he right of the. pi\rol to dcnuir 
 is abolished by S'atute in New York, in 
 all ca^es of descent and devise. Harris 
 r. Youman, 1 IIofT. Cii. 178; .see Field v. 
 Williamson, 4 Sandf. (Jh. 013. But the 
 rule giving an infant a day after his 
 coming of age is still in force. Collin v. 
 Heath, (i Met. 81. 
 
 * 19 Ves. 114. 
 
 1 Vern. 295. 
 
 18 Vc9. 84. 
 
 7 Moudey r. Mondev, 1 Ves. & fi. 223. 
 
 Cn. rV. § 9. 
 
 Day to show 
 cause still 
 given by de- 
 cree on a legal 
 foreclosure ; 
 
 1 Bof.th r. Kich. 1 Vern. 295; William- 
 son i'. Gordon, 19 Ves. 114; Anon, Mos. 
 60; Heiinelt '-. i:<l wards, 2 Vern. 392; 
 Trice r. Carver. 3 M. .S: C. 101. 
 
 2 Newbury i". Marten, 15 Jur. 100, V. 
 C. Ld. C; Yates v. Crewe, Seton, 085; 
 and see ib. 689; but see Fisher on Mort- 
 gages. 031. 
 
 3 .Mallack v. Galton. 3 P. Wms. 3.52; 
 Lvne V. Willis, ib. n. [H]; Bishop of Win- 
 chester V. Beavor, 3 Yes. 314,317. This, 
 however, must not be understood as 
 applying to cases where the decree has 
 been" obtained l)y fiaud, or where the 
 infant ilainis by a title paramount to the 
 mortgage; see /><>sl, 172. In decrees of 
 foreclosure against an infant, there is, 
 according to the old and settled rule of 
 practice in Chancer}-, a day given when 
 DO comes of age, usually six months, to 
 «liow cause against the decree, and mako 
 a better defence, and he is entitled to be 
 called in for that purpose by process of 
 
 And by the 
 order of 
 foreclosure 
 absolute. 
 
 Where sale 
 decreed, 
 instead of 
 foreclosure.
 
 168 
 
 PEKSONS AGAINST WHOM A SUIT JIAY HE INSTITUTED. 
 
 ('11. IV. 51'.'. 
 
 Absolute 
 decree of 
 foreclosure at 
 bearinfc, 
 where secu- 
 rity deficient. 
 
 Court cannot, 
 under ordi- 
 nary juris- 
 diction, sell 
 infant's 
 estate, merely 
 forhisbenefit. 
 
 ])lus inii;lit bo ixoi o1' i)i>rli:i])s 4000/., considered ;is i-enl estiite for 
 the hi'iieiit iifllii' iiilhiit. lli.s liordshiji ;u'eordiiiii"ly 'ii;i»le n doeree, 
 l>y wliieli it was iH'terved to the ]\I;tstef, to incjuire and report 
 wlietlier it woidd be lor the benefit of the infant tliat tlie estate 
 shonld be soUl. In that ease, tlie reference was to be made only 
 in case the niortgagoQ consented ; and the same ajipears to luivc been 
 the order in J\tce v. Marsdai','^ but in WakcJawi v. Jjonie, and 
 Ilamond v. Jiradlcy^- like decrees appear to have been made, with- 
 out its being stated that they M'ere made by consent, or even that 
 a sale was prayed. It is to be observed, also, that in those cases, 
 as well as in Pace v. Marsden, the decree was made for a sale, 
 withont a ])revioiis reference to inquire Avhether it wonld be for 
 the benefit of the infant. In Pace v. Marsden, however, it seems 
 that a sale was prayed by the bill. In Price v. Carver,^ Lord 
 Cottcnham seems to have suggested, that a decree for sale was the 
 proper course, as against an iiifimt defendant ; and in the event of 
 such a decree, it would aj)pear that no day to shoAV cause is given.* 
 Now, however, in all foreclosure suits, the Court is empowered, if 
 it thinks fit, to direct a sale, instead of a foreclosure ; ^ and where 
 it is for the benefit of the infant, it is the practice to do so.® Where 
 the A'alue of the mortgaged property was clearly less than the 
 amount due to the mortgagee, the Court, at the hearing, made an 
 absolute decree for foreclosure against an infant defendant, upon 
 the plaintiff's paying the inflmt's costs.'^ 
 
 Mere irregularities and errors in the proceedings of the Court 
 will not invalidate a sale, or prevent a good title from being made 
 under a decree ; * it seems, however, that if there is a material 
 error in substance, as well as in words and form, a purchaser may 
 object to the title, and the Court will discharge him from his con- 
 tract. Thus, in the case of Calvert v. Godfrey,^ where a sale of an 
 infant's estate was ordered, merely because it was beneficial to the 
 infant, and without there being any person who had a right to call 
 
 1 Seton, 275, 1st ed. 
 
 2 Ibid. 
 
 3 3 M. & C. 157, 161. 
 
 4 Scholefield v. Ileatield, 7 Sim. 669; 8 
 Sim. 470; Davis v. Dowdin^, 2 Keen, 245. 
 
 5 15 & 16 Vic. c. 86, § 48; and see 
 Hurst t;. Hur.st, 16 Beav. 372; Powell v. 
 Robins, 7 Sumner's Ves. 211, note (1), and 
 cases cited; Harris v. Harris, 6 Gill & J. 
 Ill; Davis r. Do\vlinf,^ 2 Keen, 245; 
 Garland v. Living, 1 liaiid. 396; Coger f. 
 Coger, 2 Dana, 270, in reference to the 
 circumstances under ■which Courts will 
 decree a sale of the lands descended to 
 infants. In Mills v. Dennis, 3 John. Ch. 
 367, which was a bill for foreclosure of a 
 mortgage, Jlr. Chaticellor Kent observed, 
 " The practice with us has been to sell, 
 and not to foreclose, as well where infnnts, 
 as where adults are concerned. I think 
 
 this course must generally be most bene- 
 ficial to the infants as well as to the cred- 
 itors; and there can be no doubt of the 
 authority of the Court to pursue it." In 
 case of a decree (or the sale of the mort- 
 gaged premises, the decree, it is under- 
 stood, will bind the infant. Mills v. 
 Dennis, 3 John. Ch. 367, 309; 2 Kent (11th 
 cd.), 245. 
 
 c Jlears v. liest, 10 Hare, App. 51; SifF- 
 kin V. Davis, Ka_y, App. 21. 
 
 7 Croxon r. Lever, 10 Jur. N. S. 87; 
 12 W. K. 237, M. II., following Billson v. 
 Scott, Seton, 086, V. C. W. 
 
 8 Calvert v. Gndfrev, 6 Beav. 97, 107; 
 Baker v. Sowter, 10 Beav. 343, 348. 
 
 9 6 Beav. 97, 109. Now, however, the 
 Court has statutory power to sell infants' 
 settled estates; see post. Chap. XLV. § 6.
 
 INFANTS. 
 
 169 
 
 upon the Court to sell the estate for the satisfaction of a claim or 
 debt, Lord Langdale M. R., considering that such an order was not 
 witliin the jurisdiction of the Court, allowed an objection to the 
 title, made in consequence of the irregularity of the decree. 
 
 Where an answer is put* in on behalf of an infant, it is put in 
 upon the oath of the person appointed his guardian ; ^ but the infant 
 is not bound by such answer, and it cannot be read against him : - 
 the true reason of wliich is, because in reality it is not the answer 
 of the infant, but of the guardian, who is the jierson sworn, and 
 not tlic infant ; and the infant may know nothing of the contents 
 of the answer put in for him, or may be of such tender years as 
 not to be able to judge of it.^ This being the case, it would be 
 useless, and occasion unnecessary expense, to call upon an infmt 
 to put in a full answer to the plaintiff's bill ; * and it is, therefore, 
 held, that exceptions will not lie in the answer of an inf vnt, for 
 insufficiency.^ 
 
 It is not now the practice to require any answer from an infimt. 
 Formerly, when an ansAver from every defendant was necessary, 
 an infant's answer was generally confined to a mere submission of 
 liis rights and interests in the matters in question in the cause to 
 tlie care and protection of the Court ; " the infant might, however, 
 state in liis answer any thing which he meant to prove by way of 
 defence ; "^ and he may now file a voluntary answer for this pur- 
 ])Ose,* Avhenever it is for his benefit so to do, as in many cases it 
 may be ; ^ but whatever admissions there may be in the answer, 
 or wliatever points may be tendered thereby in issue, it appears 
 
 Cir. lY. § 9. 
 
 Answer of 
 infaut ; 
 
 1 Ld. lied. 314. The order appointing 
 tiie {guardian must be produced to the 
 person before whom the answer is sw"rn, 
 Ord. VII. 4. Wiicre a guardian ad litem 
 lias been apiiointed, an order may be 
 obtainfd, on a (n'tilion of course, by tlie 
 (ilainliir, to file an infant's answer witliout 
 oath, or without oath or signature of liis 
 guardian. For form of petition, see Vol. 
 III. 
 
 •- 2 Kent (11th ed.), 24.5; Lcggett v. 
 Sellon. .'J I'ai^'i', 84; .James v. .James, 4 
 I'aiue, ll'j; .Sic()iienson c. Steidieiison, 
 I'aigf. ^.'j.'}; Hogers »>. (,'ruger, 7 .(oiin. .581 ; 
 Hulklev V. Van Wvfi«, 5 I'aize, 536; 
 Stewart r. Duvaii, 7 (iill & .1. 180; Hank 
 of AJi-xandria r. Patton, 1 Uoh. (Va.) 
 fj'iO; Craiii )•. Parker, 1 Carter (Ind.), 74. 
 It it tiic duty of the (.'ourt to sec, that the 
 riRJifs of an infant are not prejudiced or 
 altamloned bv the an-^wer of his guardian. 
 Harret r. (JliVer, 7 (iill & .J. 191. An in- 
 fant is not bound by a guardian's waiver 
 of service of process, iiobliins v. Hobbins, 
 2 (.'arter, 74; Lenox v. Netrebe, 1 Hemp. 
 251. 
 
 Tlie answer of nn infant by his guardian 
 ad litem, is not evidence in liis favor, 
 
 although it is responsive to the bill, and 
 sworn to by the guardian ad Uttm. IJulk- 
 ley 0. Van'Wyck, 5 I'aige, 530; Stephen- 
 son V. Stephenson, l^iige, 353. A 
 plaintiff cannot in any form of pleading 
 compel an infant to become a witness 
 against himself. Bulkley v. Van Wyck, 
 uhi supra. 
 
 3 WrottPslev v. Bendish, 3 P. Wms. 
 230; see Hough v. Dovle, 8 Blackf. 300; 
 Hough V. Canbv, 8 IMiic-kf. 301. 
 
 •» Strudwick r. I'argiter, 15unl). 338. 
 
 '■' Copeland v. Wheeler, 4 IJro. C. C. 
 2.56; Lucas i\ Lucas 13 Ves. 274; Ld. 
 lied. 315; Leggeft r. Sellon, 3 Paige, 84; 
 Hidklev V. Van Wvck, 5 Paige, 530. 
 
 « Mills V. Dennis, 3. John. Ch. 307, 368; 
 Dow r. .Jewell, 21 N. II. 470, 480, 487. 
 
 7 Per liichard'J, C. P., in Attorney- 
 General r. I.anibirth, 5 Pri. 31)8. 
 
 " For formid ])art8 of an infant's An- 
 swer, see Vol. HI. 
 
 « Lanei'. Ilardwicke.OHoav. lis. (h;\. 
 XIII. 1, empowering the ])!ainti(rio (ile a 
 traversing note in default of answer, floes 
 not, it seemx, apply to Mu infant defendant. 
 Emery r. Newson, 10 Sim. 504. 
 
 Cannot be 
 excepted to ; 
 
 Not now 
 required ; 
 
 Form of 
 answer, ac- 
 cording to 
 late practice. 
 
 Voluntary 
 answer under 
 present 
 practice. 
 
 Plaintiff must 
 prove his 
 case, notwith- 
 standing 
 answer.
 
 170 
 
 TERSOXS AGAINST ■Wno:^ A SUIT MAY BE INSTITUTED. 
 
 c'li. IV. 5 ;»■ 
 
 Infant, ilis- 
 »itisli('(l with 
 answer. in;i_v 
 filo aiu'tluT 
 on I'oniini; of 
 
 r>ut sliouia 
 do so iis oarly 
 as possililo 
 thereaftor. 
 
 Admissions 
 cannot be 
 made on part 
 of inlant. 
 
 Necessary 
 facts must be 
 proved 
 against him. 
 
 Execution of 
 will must be 
 proved, where 
 heir an infant. 
 
 tli:it tlic plaintill' is not in any lU'uroo oxoncratcMl fiom liis dnty 
 in ]irovinu', as against llio infant, tlu' whole casi' npoii which he 
 relies.i 
 
 Wlieio an .answer h.is been ])nt in by a o-uardian on behalf of an 
 infant detendant, and the iidimt et)nies of age, and is dissatisfied 
 with the defence ])nt in by his guardian, he may :»pply to the Court 
 for leave to amend his answer, or to ])ut in a new^ one ; - and it 
 seems that this privilege a})plies as well after a decree has been 
 made as before." 
 
 An infant, however, wishing to make a new defence, must ri]'ply 
 to the Coiirt as early as possible after attaining tAventy-one ; for if 
 he is guilty of any laches, his aj)})lication Avill be refused. •* 
 
 The same reasons which prevent an infant from being bound by 
 his answer, operate to prevent his being bound by admissions in 
 any other stage of proeeeding, unless indeed such admissions are 
 for his benefit. Thus, it Avas held that, where an infant is con- 
 cerned, no case could be stated by the Court of Chancery for the 
 opinion of a Court of Law : because an infant would not be bound 
 by the admissions in such case.^ Upon the same principle it has 
 l)een held, that an infant is not bound by a recital in a deed exe- 
 cuted during infancy .° 
 
 The consequence of this rule is, that where there are infant 
 defendants, and it is necessary, in order to entitle the plaintiff" to 
 the relief he prays, that certain facts shoukl be before the Court, 
 such facts, although they might be the subject of admission on the 
 2)art of adults, must be proved against the infants.' For the same 
 
 1 Ilolden r. Hcarn, 1 15eav. 445, 455; 3 
 .Tur. 428; Mills v. Dennis, 3 John. Ch. 
 367,368; 2 Kent (11th ed.), 245; Winston 
 V. Campbell, 4 Hen. & M. 477; Massie v. 
 Donaldson, 8 Oliio, 377. 
 
 - Steplienson r. Stephenson, 6 Paige, 
 353; .James v. James, 4 Paige, 115. An 
 infant defendant does not Inse his right to 
 object to the jurisdiction of the Court at 
 the hearing, upon the ground that the 
 remedy is at Law, althougli his guardian 
 ad litem has omitted to raise such objec- 
 tion in his answer. Bowers v. Smith, 10 
 Paige, 193. 
 
 Where the infant under leave does 
 amend liis answer, or puts in a new one, 
 on coming of age, the plaintitT may amend 
 his bill, an'l mav waive an answer under 
 oath by the infant so coming of age. 
 Stepiifnson v. Stephenson, 6 Paige, 353. 
 
 3 Kelsallr. Kelsall, 2 M. & K. 409, 416; 
 Snow V. Hole, 15 Sim. 161; 10 Jur. 347; 
 Codrington v. Johnstone, cited 1 Smith 
 Pr. 275; Sefon, 685. 
 
 4 Bennet v. Leigh, 1 Dick. 89. In the 
 ca=e of IJennet v. Lee, 2 Atk. 487, and 
 529, referred to in the margin of 1 Dick. 
 89 as S- C, the application was made 
 during the infancy, see post, 174; and see 
 
 Cecil V. Lord Salisbury, 2 Vern. 224; 
 Mason v. Debow, 2 Ilavw. 178; Morris 
 V. Morris, 11 Jur. 260, V.'C.K. B.; Mony- 
 pennv v. Dering, 4 De G. & J. 175; 5 
 Jur. N. S. 661. 
 
 " Hawkins v. Luscombe, 2 Swanst. 392; 
 but it was done in Walsh v. Trevannion, 
 10 Sim. 178; 12 Jur. 547. 
 
 G Milner v. Lord Ilarewood, 18 Ves. 
 274. 
 
 7 Wilkinson v. Beal, 4 Mad. 408; see 
 also Quantiick r. Bullen. 5 Mad. 81, where 
 the Court refused to allow evidence, taken 
 before the mfants were made p:uties, to 
 be read ag.iinst them; but see Baiilie 
 V. Jackson, 10 Sim. 167, as to accounts; 
 and see Jebb v. Tugwell, 20 Beav. 461. 
 In Mills V. Dennis, 3 John. Ch. 367, which 
 was a suit for foreclosure, it was held, that 
 there could be no valid decree against an 
 infant, by default, nor on his answer by 
 guardian; but the plaintiff must prove his 
 demand in Court, or hefore a master, and 
 the infant will have a day in C^urt, after 
 he comes of age, to show error in the 
 decree. See Mas-ie r. Donaldson, 8 Ohio, 
 377; Walton v. Coulson, 1 McLean, 125; 
 Chalfant v. Monroe, 3 Dana, 35; Dow u. 
 Jewell, 21 N. H. 486, 487.
 
 INFANTS. 
 
 171 
 
 reason, where a will relating to real estate is to be established in 
 Chancery, and the heii--at-law is an infont, it is always necessary 
 to establish the due execution of the will by the examination of 
 witnesses. 
 
 From the report of the cases of Carticright v. Cartioright, and 
 Sleeman v. Sleeynan, in Mr. Dickens's Reports,^ it seems to have 
 been held, that where the heir-at-law in an original suit, being 
 adult, had by his answer admitted the due execution of the will, 
 but died before the cause was brought to a hearing, leaving an 
 infont lieir, who w^as brought before the Court by revivor, the will 
 must be proved j^e?* testes against the infant heir. But in Livesey 
 V. Lwesey^- Sir John Leach M. R. held, that the circumstance of 
 tlie first lieir having admitted the will, rendered it unnecessaiy to 
 pro\'e it against the infant ; and in a subsequent case,^ Sir Lancelot 
 Shad well V. C. expressed himself to be of the same opinion as the 
 Master of the Rolls, and said that he had referred to the entries of 
 tlie cases of Sleeman v. Sleeinan^ and Carticright v. Carticriglit, in 
 the Registrars' book ; and that Avith respect to the former, no such 
 thing as is mentioned by the reporter appears to haA'e taken place, 
 but the original heir having admitted the will, the Court estab- 
 lislied it ; and Avith respect to the latter, all that was stated Avas, 
 that on hearing the Avill and proofs read (not saying Avhat proofs), 
 the Court declared that the Avill ought to be established.* 
 
 Where an infant has a day given him by the decree, to shoAV 
 cause against it, the process served upon him at his coming of age 
 is a Avrit o^ suhpcena, Avhich is a judicial Avrit.^ 
 
 The suhpmna. Avill be sealed upon its mere presentation, and 
 Avithout production of the decree or oi'der referred to in it ; and 
 need not be served jjersonally." It is serA'ed by delivering a coj^y 
 thereof, and of the indorsement, to the late infant personally, or to 
 his servant, or some member of his family,'' at his dAvclling-house, 
 or usual place of abode, and at the same time producing the origi- 
 nal xuhpceita.^ If service cannot be thus effected, an aj)plication 
 may be made to the Court, by eji parte motion," supi)orted by affi- 
 davit, to direct some other mode of service.^" If the order be made, 
 a co]»y i)K it must be served with the snhpjaina^ in tlic manner pre- 
 scribed by the order. 
 
 Cn. IV. § 9. 
 
 Infant heir 
 bound by 
 admission of 
 his ancestor. 
 
 Subpana to 
 show cause 
 ajjainst 
 decree ; 
 
 How scaled ; 
 
 « 
 
 and sen-ed. 
 
 Substituted 
 service. 
 
 1 2 Dick. 545, 7«7. 
 
 2 Cited 4 Sim. 132. 
 
 8 Lock >•. Foote, 4 .Sim. 132. 
 
 * .Sci' nl-o IJiibiiison r. Cooper, 4 Sim. 
 131. .Such II statement by an ancestor 
 plaintiti', in a Ijjll, is an a'Imissioii binding 
 on hi" infant heir. Ilollings r. Kirkby, 15 
 Sim. 183. 
 
 6 2 Kent (lllh ed ). 245, and nolo; Dow 
 f. .Jewell, 21 X. IF. 4^1. For form of 
 writ, .see Ord. Sciied. K. 6; and Vol. III.; 
 
 for forms o( pracipe and indorsement, see 
 Yr.l. IIF. 
 
 « I'.riiithwaite's Tr. 26G, 267. 
 
 ^ Sucli member should be an inmate of 
 the house. Kdgson v. Edgson, 3 De G. & 
 S. C2!l. 
 
 H See Ord. X. 1; XXVIII. C. 
 
 •' For form of motion paper, see Vol. 
 III. 
 
 1" See Ord. X. 2; Elcock f. Giegg, 2 
 Dick. 704.
 
 172 
 
 PKHSONS AGAINST AVIIO.M A SUIT MAY BE INSTITUTED. 
 
 ("11. IV. ^i). 
 
 Duration nf 
 
 How doiToe 
 
 made 
 
 absolute. 
 
 Wliat cause 
 may he shown 
 against de- 
 cree : in eases 
 of foreclosure. 
 
 Where 
 infant's title 
 paramount 
 themortKase. 
 
 Tho service ot" the aubpcena will bo of no viilidity, if not made 
 witliiii Iwc'lvo weeks iifter the teste of the writ.^ 
 
 It" alter service of the si(/)jHena to show cause, the party does 
 not appear witliin the time limited, the decree will he made abso- 
 lute, without entering an appearance for him," upon an ex ]X(>'t<^ 
 motion, sujiported by an afKdavit of service of the subpoena, evidence 
 that the infant is of a^'c, and the Ivegistrar's certificate of no cause 
 shown.^ 
 
 It is said above,^ that in cases of foreclosure, the only cause 
 Avhich can be shown by an infant after attaining twenty-one, 
 against making the decree absolute, is error in the decree, and that 
 he will not be permitted to unravel the account, nor even to 
 redeem the mortgage on paying what is due. This strictness, 
 however, must not be understood as applying to cases in Avhich 
 fraud or collusion has been made use of in obtaining the decree.^ 
 Neither, it is apprehended, will the above rule apply to cases where 
 the title claimed by the infant is paramount the mortgage. Thus, 
 in a case where an estate had been conveyed to the great-uncle and 
 grandfather of the infant, as joint-tenants in fee, and upon the 
 death of the great-uncle, the grandfather, being the survivoi', had 
 mortgaged the estate, and died, leaving the infant his heir-at-law : 
 upon a bill filed by the mortgagee jigainst the infant to foreclose, 
 the infant stated in his answer that the estate had been purchased 
 and paid for by his great-uncle, who devised the same to his grand- 
 father for life, with remainder to his heirs in tail, and so claimed 
 the estate as heir in tail by a title paramount the mortgage ; but 
 the Court decreed an account, and that the defendant should re- 
 deem or be foreclosed, unless he showed cause Avithin six months 
 after he came of age, on the ground that the grandfather being by 
 the deed joint-tenant in fee with his brother, whom he survived, 
 must have appeared to the mortgagee to have a good title. The 
 inflmt, however, when he came of age, upon being served with a 
 suhpf/ina to show cause, moved for leave to amend his defence, by 
 putting in a new answer, and swore that he believed he could 
 prove that the mortgagee had notice of the trust for his great- 
 uncle at the time he lent the money, Avhich was a point not insisted 
 upon in his former answer; and the Court made the order.® The 
 reason of this distinction between the case of a claim by the infant 
 paramount the mortgage, and that of a claim subject to the mort- 
 gage, is obvious ; for in the latter case, it will be presumed that the 
 Court would not have made the decree had it not been satisfied 
 
 1 Ord. XXYIII. 9. 
 
 - Glib. For. Hum. ICO; Wharam v. 
 Brouf^hton, 1 Ves. S. Ifeo. 
 
 3 bee Seton, 685; Hinde, 4-36, 440. Tor 
 forms of orders absolute, see Seton, 6&5, 
 
 689; and for forms of motion paper and 
 afiidavit, see Vol. III. 
 
 4 Aniv, p. 167. 
 
 5 Lnvd V Miinsel, 2 P. Wms. 73. 
 
 6 Anon., Mos. 60.
 
 INFANTS. 173 
 
 that the mortgage was properly executed, and, therefore, it would dr. IV. § 9. 
 
 not be reasonable to allow a party, clahnmg subject to that deed, '— — i r' 
 
 to disturb the title which the mortgagee had acquired under it ; 
 but in the former case, the mortgage may have been j^roperly 
 executed, and the account taken under it may have been perfectly 
 correct, and yet the mortgagor may not have had a title to make 
 the mortgage : in which case, it would not be just to preclude the 
 infont from an opportunity of establishing a case which, from the 
 circumstance of its not having been insisted upon in the infant's 
 answer, was not properly submitted to the decision of the Court at 
 the time the decree was pronounced. 
 
 In ordinary cases, where an infant has a day given him to show Grounds on 
 cause against making a decree absolute, he may either im])each the impoachaWe. 
 decree on the ground of fraud or collusion between the plaintiif 
 and his guardian, or he may show qyvov in the decree. He may 
 also shoAV that he had grounds of defence which were not before 
 the Court, or were not insisted u])on at the hearing, or that new 
 matter has subsequently been discovered, upon which the decree 
 may be shown to be "svTong.^ 
 
 If the late infant seeks to controvert the decree on the ground Ho-n- cause 
 of fraud or collusion, he is not bound to proceed by way of rehear- "I'j'J;;^.,^? 
 ing or by bill of review, but he may impeach the former decree by For fraud or 
 an original bill, in which it will be enough for him to say, that the * ' 
 decree was obtained by fraud or collusion ; he may in like manner 
 impeach the decree by original bill, even though his ground of 
 complaint against it is confined to en'or.^ In such cases, it is not Error, 
 necessary for the infant to wait till he comes of age before he infant need 
 seeks redress, but application for that purpose may be made at any "J^a^^Je^**^ 
 time.' 
 
 If the late infant seeks to impeach the decree, by showing that How applica- 
 he liad grounds of defence which were either not before the Court, to'seum'ir ^ 
 or not insisted upon at the original hearing, he might, under the "C'w defence 
 old practice, apply to the Court, either by motion or petition, for 
 leave to put in a new answer ; and it seems that such application 
 might be made ex parte ^ and was a matter of course ;■* but under 
 
 1 An infant may impeach a decree time of the decree pronounced; see Loyd 
 
 a^ninst him by an orif^iniil bill for relief, v. Mansel, 2 P. \V ms. 73; Sheldon v. 
 
 as well as by a bill of review or peti- Fortcscue, 3 P. Wms. 111. In general, 
 
 tion for a rehearing. Loyd v. Malone, 23 however, where no fraud is alleged, the 
 
 111. 43. proceedings to set aside a decree, if it has 
 
 - Kichmond v. Tayleur, 1 P. Wms. 737; been higiied and enrolled, must be by bill 
 
 f'arew v. .Johnston, 2 Sch. & Lef 292; of review, or, if not signed and enr<illcd, 
 
 Ikook I'. Mostyn, 10 Jur. N. S. 554, M. R. ; bv supplemental bill in the nature of a 
 
 ih. 1114; 13 \V. Pi. 115, L. J.I.; 13 IJcav. bill of review. Wortley r. Hirkhead, 3 
 
 457; 2 Dc <i., .J. & S. 373, 417. In the Atk. 809, 811; Galley v. Baker, Ca. t. 
 
 case of gross fraud or collusion used in Talb. 201. 
 
 obtaining a decree, the Court will enter- " liichmond r. Tayleur, 1 P. Wms. 737; 
 
 tain an original bill for the purpose of Carew r. .lolinston, 2 Sell. & Lef. 292. 
 
 imi)eaching it, even lliou;;h the party ■• Fountain v. Caine, 1 P. Wms. 504; 
 
 complaining was not an infant at the Napier v. Lady Effingham, 2 P. M'nis.
 
 174 
 
 TEKSONS AGAINST >VIlO^[ A SUIT INIAV BK INSTITUTED. 
 
 Cii. IV. ?V. 
 
 Whore cross- 
 biU. 
 
 Bill of discov- 
 ery in aid. 
 
 Enlarging 
 time to show 
 cause. 
 
 New bill only 
 lies where 
 fraud, collu- 
 sion, or en'or. 
 
 Infant must, 
 in general, 
 ■wait till of 
 age. 
 
 tl>o ]irc'sciit jivnc'tico (unless nil Muswcr Ims l»rcn put in, or it is 
 tliouglit (losirablo lo ])iit one in, on bt'liiili'ol' tlie infant), it is con- 
 ci'ivod the iovni of the motion or petition will be, for leave to make 
 a new defence. 
 
 Although it "Nvns a matter of course, that an infant defendant to 
 a suit, who liad had a day given him to show eause against the 
 decree after attaining tAventy-one, might have leave to put in a 
 new answer, yet, if he was plaintiff in a cross-bill, and that suit or 
 any part of it had been dismisse<l, he was not alloAved to amend 
 his cross-bill, or to file a new one for the same matter.^ He might, 
 liowever, file a bill of discoA'cry in aid of the case intended to be 
 made by his ansAver; and it seems that if he did so, the time of six 
 months alloAved by the course of the Covirt for a defendant to shoAV 
 cause Avhy a decree should not be made absolute after he comes of 
 age, Avas not so sacred but that in particular cases, and Avhere the 
 matter Avas of consequence, the Court might enlarge it ; and, there- 
 fore, in the case of IVefusis v. Cotton,'^ where a defendant, on 
 attaining twenty-one, and being served Avith a subpoe7ia to shoAV 
 cause against a decree, filed a bill against the plaintiffs in the 
 original suit for discoA'ery, and applied to the Court to have the 
 time for shoAving cause enlarged till the defendants to the bill of 
 discoA'ery had put in their ansAver, Lord King made an order, en- 
 hirging the time for three months after tlie six months Avere expired ; 
 and on that time being out, and the defendants not having i)ut in 
 a full ansAver, the time was tAvice enlarged upon motion (juousque? 
 It seems, hoAA'ever, from a subsequent notice of the same case,* that 
 an infant, after he attains tAventy-one, cannot controvert the original 
 decree by a ncAV bill praying relief, unless for fraud or collusion, or 
 for error; ^ and that if he does so, the original decree may be 
 pleaded in bar to such ncAV bill. 
 
 Although, AA'here a day is given to an infiint to shoAV cause 
 against a decree, he need not, as Ave have seen,^ stay till that time, 
 before he seeks to impeach it on the ground of fraud, collusion, or 
 error,' yet, if he proceeds on the ground that he is dissatisfied Avith 
 the defence A\diich has been made, and wishes to make a new 
 defence, he must, in general, Avait till he has attained tAventy-one 
 before he applies : because, if he should apply before, and there 
 should be a decree against him upon the second hearing, he may 
 Avith as much reason make similar ai)plications, and so occasion 
 
 401, Affd. 4 Uro. P. C. ed. Toml. 340; Ben- 
 net V. Lee, 2 Alk. .02'J, 531; Kelsall v. 
 Kelsall, 2 M. & K. 409, in wliich the cases 
 are reviewed. 
 
 1 Sir J. Napjier v. Ladv Effingham How- 
 ard, cited Mos. 67, 68. 
 
 2 Mos. 203. 
 
 3 For forms of petition to enlarge the 
 
 time for showing cause, see 2 Newl. 214; 
 Hinde, 572. 
 
 4 lAIos. 308. 
 
 6 liiclimoiid V. Tayleur, 1 P. Wms. 737; 
 see Loyd v. Malone, 23 HI. 43 ; Kegla v. 
 Martinj" 10 Cal. 463. 
 
 6 Ante^ p. 173. 
 
 1 Kichmond v. Tayleur, 1 P. Wms. 737.
 
 IDIOTS, LUNATICS, AND PERSONS OF WEAK MIND. 
 
 175 
 
 infinite vexation. This was the opinion originally expressed by Cn. lY. § lo. 
 
 Lord Hardwicke, in the case of Beraiet v. Lee ;'^ though he after- ^^ y ^ 
 
 wards held, in the same case, that as the facts upon which the 
 infant wished to rest his new defence were of long standing, and 
 the witnesses were consequently very old, and might die before 
 he came of age, the influit might put in a better answer.^ And so 
 in Savage v. Carrol,^ leave was given to the infont defendant, upon 
 the same grounds, to put in an amended answer before attaining 
 twenty-one ; but it was subsequently held in the same case,* that 
 where an infant, before attaining twenty-one, obtains leave to put 
 in a new answer, he will thenceforth be considered as plaintift^ and 
 as such will be bound by the decree.^ 
 
 Where an infont defendant on coming of age, having obtained A new an- 
 leave to put in a new answer, did so accordingly, he might show cause against 
 that foct for cause why the decree shoiild not be made absolute, ™;\^!|]7g*\°^'tg 
 and the jilaintiff was obliged to proceed upon the answer accord- 
 ing to the rules of the Court in other cases.*^ 
 
 The consequence of an infant putting in a new answer was, 
 that, if it was replied to, he might examine witnesses anew to 
 prove his defence: which might be dificrent from what it was 
 beforeJ 
 
 Consequence 
 of a new 
 answer. 
 
 Section X. — Idiots, Zunatics, and 2^cr sons of weak mind. 
 
 An idiot or a lunatic may, as Ave have seen,^ be made a defend- Lunatics, so 
 ant to a suit, but then, where he has been found of unsound mind i^"",-j,itfon, 
 bv in(|uisition, he must defend by the committee of his estate, who, lUiend by 
 
 •'' ', -..i • -\ 1 • • conunittecs, 
 
 as well as the idiot or lunatic Avhose estate is under ins care, is a 
 necessary party to a suit respecting that estate.^ No order is wiionmstbe 
 required in the suit to entitle the committee to defend; but the I'*^'''^"' 
 conimittee must obtain the sanction of the Lord Chancellor or 
 Lords Justices in the lunacy, before defending, in the same man- 
 ner as before instituting a suit." 
 
 1 2 Atk. 487. 
 
 2 llj. M'l. 
 
 3 1 Hall. & 15. .148. 
 
 t '1 \',A\. k IJ. '.i44. 
 
 ■'' In |ir<pce(MliiiK^ by an infant, on coniinf; 
 fif a;jc, Ui set Hsidi! a detree, wliidi lias 
 been rendered a^raiiist biin while nwV:T 
 nffe, he .HliDuld give notice to the other 
 piinie-. to the decree. Ituby «. Strother, 
 11 ,Mi». 417. 
 
 fi Cotton V. TrefuMs, Mos. 313. 
 
 7 Nnpier r. Lord Kfiiufjliain, 2 1*. Wnis. 
 401, 403; and see Codriufjlon r. .Johnstone, 
 Seton. 685; Kelsall v. Kehall, 2 M. & K. 
 40i>, 416. 
 
 » Ante, p. 130. 
 
 Ld. Ked. 30, 104; Story Kq. PI. § 70; 
 Harrison r. Rowan, 4 Wash. C. C. 20'2. 
 In Brasher /;. Van CorilMudt, 2 John. Gli. 
 242, 245, it wns held not necessary, in New 
 York, to make the linnitic himself a party 
 defendant to a t)iil for jiaynieiif of his 
 debts, but hi-! connnittee only, wiiere he 
 had a connnittee. So in Teal r. Wood- 
 worth, 3 Paif,'e, 470. See Berry r. Hojiers, 
 2 B. Mon. 308. But in a suit where there 
 are ciinflictinf; interests between a lunatic 
 nnrl his committee, which must be settle<l 
 in the cause, both should bi' nnidc! parties. 
 Teal I'. Woodworth, 3 I'aige, 470. 
 
 10 Ante, p. 85.
 
 17G 
 
 PERSONS AGAINST WHOM A SUIT MAY BE INSTITUTED. 
 
 Cn. IV. 5 10. 
 
 Wicre com- 
 mittee dies, 
 onler to carry 
 on in name 
 of new com- 
 mittee. 
 
 Lunatics, not 
 so found, and 
 persons of 
 weak intel- 
 lect, defend 
 guardian. 
 How 
 appointed. 
 
 Evidence in 
 support of 
 application ; 
 
 Wlio ineli- 
 gible to be 
 by guardians. 
 
 New appoint- 
 ment: how 
 made. 
 
 l^sually tlie lunatic ami his coimuitlrc make a joint dct'onco to 
 till' .suit ; but it" it hai)i»oiis that an idiot or a lunatic has no com- 
 mittt'o, or the coinniittoo is ])laintiir, or has an adverse interest, an 
 order should ho obtained, on motion or petition of course, su])- 
 ported by atlidavit,^ a])i)i>inting a guardian to defend the suit;'^ 
 and it is the same where he is respondent to a petition.^ 
 
 "Where, alter decree, the coniniittee died, and .1 new one was 
 appointed, an order was made, on motion, that in all subsequent 
 l^roceedings the name of the new committee should be substituted 
 for that of the former ; * w here no decree had been made, such an 
 order was refused ; ^ now, however, in both these cases, an order 
 to carry on and jn-osecute the suit may be o1)tained, on motion or 
 petition of course.'' Lunatics not so found by incpiisition,'^ and 
 persons of Aveak intellect, or who are by age or infirmity reduced 
 to a second infancy,* must defend by guardian : who Avill be ap- 
 pointed on an api)lication by motion, or petition of course, in the 
 name of the 2:)ersou of unsound mind ; ^ and it is the same in the 
 case of a petition where no suit has been instituted.^" The appli- 
 cation must be supported by affidavits proving the mental in- 
 capacity of the defendant,^^ the fitness of the proposed guardian, 
 and that he has no adverse interest.-''- A co-defendant may be 
 appointed, if he has no adverse interest ; ^^ but not the plaintiif, 
 nor a married woman, nor a j^erson resident out of the jurisdic- 
 tion.^* 
 
 If the guardian dies, it appears that similar evidence of mental 
 incapacity is necessary, in supjjort of the application for the 
 appointment of a new guardian, to that required on the original 
 application.^^ The death of the guardian, and fitness of the per- 
 son proposed in his place, must also be proved. The application 
 should be made by motion,^" or by summons.^^ 
 
 1 For forms of motion paper, petition, 
 and affidavit, see Vol. III. 
 
 2 Ld. Hed. 104; Snell v. Hyat, 1 Dick. 
 287; Ladv Ilartland v. Atclicrley, 7 Beav. 
 53; Worth r. i\rKenzie, 3 M'N. & G- 8ti3; 
 Snook r. Watts, Seton, 1251; New v. New, 
 6 I'aige, 237; Hewitt's case, 3 Blanc), 184; 
 Post r. Mackall, 3 Bland, 486. For form 
 of order, sec Seion, 1251. 
 
 3 See lit Greaves, 2 W. R. 365; 2 Eq. 
 Rep. 016, L. C. & L. J.J. 
 
 * Lvon ?•. Mercer, 1 S. & S. 356; Bryan 
 V. Twigg, 3 Eq. Kep. 02; 3 W. R. 42, V. 
 C. K. 
 
 fl Rudd V. Speare, 3 De G. & S. 374. 
 
 6 15 & 10 Vic. c. 86, § 52; Seton, 1166, 
 1170; and see post, Chap. XXXIII., lie- 
 vivor and Supplcmtnt. 
 
 "! Ld. Red. 104; and see Bonfield v. 
 Grant, 11 W. R. 275, M. R. 
 
 8 Ld. Red. 103; and see Newman v. 
 
 Selfe, 11 W. R. 764, JI. R. ; but see Steel 
 V. Cobb, ib. 208, M. R. 
 
 '^ For forms of motion paper and peti- 
 tion, see Vol. III. 
 
 10 Re Greaves, 2 W. R. 355 ; 2 Eq. Rep. 
 516, L. C. & L. JJ. 
 
 H Simmons t'. Bates, 20 L. T. 272. 
 
 1^ I'iddocke v. Smith, 9 Hare, 395; 11 
 Jur. 1120; atid see Foster v. Cautlej', 10 
 Hare App. 24; 17 Jur. 370. For form of 
 affidavits, see Vol. HI. 
 
 13 lionfield r. Grant, 11 W. R. 275, M. 
 B.; Newman v. Selfe, ib. 764, M. 11. 
 
 !■* Lady Hartland v. Atcherlej'', 7 Beav. 
 53. 
 
 15 See Needham v. Smith, 6 Beav. 130. 
 
 le Ibid. 
 
 17 According to tlie present prnctice, the 
 order niay al.^-o be obtained on petition of 
 course at the Rolls. For forms of motion 
 paner, petition, summons, and affidavit, 
 see Vol. HI.
 
 IDIOTS, LUNATICS, AND PERSONS OF WEAK MIND. 
 
 177 
 
 Where an application for the appointment of a guardian is 
 intended to be made by, or on behalf of, a defendant of unsound 
 mind, or weak intellect, an appearance should, in the first place, 
 be entered for him at the Record and Writ Clerks' office ; but no 
 subsequent step can be taken on his behalf, till the order for a 
 guardian has been obtained.^ If such order be not obtained on 
 his behalf, the plaintifl" must apply for the order ; and in this case, 
 an appearance for the defendant is not necessary : the entry of an 
 appearance on his behalf by the plaintiff being irregular.^ 
 
 Where a guardian is appointed at the instance of the plaintiff, 
 it is usual to appoint the solicitor to the Suitors' Fee Fund.^ 
 
 Where the plaintiff applies, he must do so by motion, notice of 
 which must be served upon or left at the dwelling-house of the 
 person with whom, or under whose care, the defendant was living 
 at the time of serving the bill,^ or, where an apj^earance has been 
 entered for him, upon the solicitor who entered it.^ And upon 
 the motion, the Court must be satisfied that the bill has been duly 
 served,® and that the notice of the application was served after the 
 expiration of the time allowed for appearing or answering, and at 
 least six clear days before the day in such notice named for hear- 
 ing the application.''' 
 
 The order is made under the jurisdiction in Chancei-y, and not 
 in Lunacy ; * and if the fact of the infirmity is disputed, or the 
 order has been irregularly obtained by the defendant, the plaintiff 
 may move, on notice to the defendant, to discharge the order ; 
 and, if necessary, the Court will direct an inquiry whether the 
 defendant is competent or not.° 
 
 The defendant, on his recovery, must apply by motion, on notice 
 to the plaintiff and to the guardian,^" that the order assigning the 
 guardian may be discharged." Where ho had delayed applying, 
 he had to pay liis guardian's costs, although the motion was 
 
 Ch. IV. § 10. 
 
 Appearance 
 by defendant, 
 a necessarj' 
 pi'olimiuary- 
 to application 
 by him. 
 If no applica- 
 tion on behalf 
 of defendant 
 to appoint 
 guardian, 
 plaintiff must 
 apply; 
 and solicitor 
 to Suitors' 
 Fund then 
 usually 
 appointed. 
 
 How appli- 
 cation made 
 by plaintiff, 
 and necessary 
 evidence. 
 
 Jurisdiction 
 to make the 
 order. 
 
 Application 
 by plaintiff to 
 discharge 
 order. 
 
 Iiujuiry as to 
 competency. 
 
 Application 
 by defendant 
 to discharge 
 order. 
 
 1 See Lushington v. Sewell, C Mad. 28. 
 
 2 Ord. X. 5; Leese v. Kniglit. 8 Jur. 
 N. S. lOOC; 10 W. IJ. 711, V. C. K. 
 
 8 Ord. Vn. .'J; .M'Keverakin v. Cort, 7 
 Beav. 317; Hiddulph r. Lord Camoys, 9 
 Bcav. 548; 10 .Jur. 4S.J. If there is any 
 friend of tlic defendant who is a fit person, 
 he will be appointed, in preference to tlio 
 solicitor to the Suitors' Fee Fund; //jid. ; 
 Moore v. I'latel, 7 IJeav. 583; and sec 
 Charlton i-. West, 3 De G., F. & J. 15G ; 7 
 Jur. N. S. G14; Bonlield v. Grant, 11 W. 
 R. 275, M. U. 
 
 * Ord. VII. 3. 
 
 * Cookson V. Lee, 15 Sim. 302; Bcntley 
 V. Robinson,!) Hare Ajip. 70. Those were 
 cases of infants, but doubtless apply to the 
 case of persons of unsound mind. 
 
 ' The defendant should, it seems, be 
 served personally. Morgan t'. Jones, 
 
 12 
 
 W. R. 381, V. C. W. ; Anon., 2 Jur. N. S. 
 324, V. C. W. 
 
 "> Ord. VII. 3. For forms of notice of 
 motion and affidavit, see Vol, III.; and 
 for form of order, see Seton. 1251. The 
 Court will provide for the costs of the soli- 
 citor to the Suitors' Fee Fund whore lie is 
 appointed guardian; usually by directing 
 the plaintifTto pay them, an"d add lliem to 
 his own; see Ord. XL. 4; and Harris t'. 
 Hamlyn, 3 De G. & S. 470; 14 Jur. 55; 
 Frasci- r. Thompson, 4 De G. & J. G59; 1 
 Gifl".337; 5 Jur. N. S. 009; and see Robin- 
 son r. Aston, 9 Jur. 224, V. 0. K. IJ. 
 
 8 Pidcocke ;;. Boultbec, 2 De G., M. & 
 G. 898. 
 
 " Lee v. Ryder, 6 Mad. 294 ; Seton, 1251. 
 
 1" For form of notice of motion, see Vol. 
 IIL 
 
 " See Frampton v. Webb, 11 W. R. 
 1018, V. C. W.
 
 178 
 
 PERSONS AGAINST "\VIIO]\I A SUIT SIAY BE INSTITUTED. 
 
 Cii. IV. § 10. 
 
 Fonn of 
 answer. 
 
 Where de- 
 fendant is 
 unable to 
 answer, from 
 bad health, 
 further time 
 allowed. 
 
 Sanction of 
 Court ueces- 
 sar\' to any 
 departure 
 from ordinary- 
 practice, by 
 committee or 
 guardii-H. 
 
 Order for 
 apiiointment 
 of LTiiardian 
 to be entered 
 at Kecord and 
 Writ Oiiice. 
 
 gv:iiit(Hl, but li;ul lHn-rty to add (lieiii to his own ciosts in the 
 siiit.^ 
 
 Tlio answer of an idiot or lunatic is expressed to be made by 
 his connnittec as his guardian, or by the person appointed his 
 guardian by the Court to defend the suit.'- It was held in the 
 case of J^ivhiff v. Caverh/,^ tliat the ansAver of a superanmiatcd 
 defendant, })ut in by his guardian, may be read against liiin ; but 
 this proposition appears to liave been doubted : tmd it is conceived 
 that, should the point now arise, it would, be decided otherwise.^ 
 
 Where the infirmity is the result of bad health, the practice 
 is to allow time to file tlie ansAver, and not to put it in by 
 guardian.'' 
 
 Tlie committee or guardian of a person of unsound mind, 
 whether so found by inquisition or not, before he consents to any 
 departure from the ordinary course of taking evidence or other 
 procedure in the siiit, should first obtain the sanction of tlie Court, 
 or of the Judge in Chambers ; and the committee should also 
 obtain that of the Lord Chancellor or Lords Justices sitting in 
 Lunacy.*' 
 
 All orders appointing guardians should be left at the Record 
 and "Writ Clerks' office for entry."' 
 
 Sectiox XL — Manned Women. 
 
 Wife cannot 
 defend with- 
 out husband; 
 unless he is 
 an exile, or 
 judicially 
 separated; or 
 she has ob- 
 tained a pro- 
 tection order; 
 
 It is a rule both of Law and of Equity, that where a suit is 
 instituted against a married woman, her husband must also be a 
 party,^ unless he is an exile, or lias abjured the realni,^ or there 
 has been a judicial separation, or the wife has obtained a protec- 
 
 1 See Franipfon v. Webb, 11 W. R. 1018, 
 
 V. c. w. 
 
 ■- I.d. Red. 315. The answer of an idiot 
 or lunatic is similar to that of an infant, 
 and should be sworn to by his committee, 
 in the same manner as the answer of an 
 infant is verified by his guardian ad litem. 
 1 Barb. Ch. Pr. 154; see Rothwell v. 
 Benshali, 1 Bland, 373; Coupons r. Kauft- 
 man, 3 Edw. Ch. 311. For the formal 
 parts of such answer, sec Vol. III. As to 
 the answers of imbecile prisoners confined 
 for contempt, see 11 G. IV. & 1 W^ IV. 
 c. 36, § 15, r. 9, unApost, Chap. X. § 2. 
 
 3 Prec. Ch. 229. 
 
 4 Micklethwaite V. Atkinson, 1 Coll. 173; 
 Percival v. Caney, 4 De G. & S. 610, some- 
 what fuller reported on this point, 14 .lur. 
 1062; S.C WjIii. Stanton v. Percival, 3 W. 
 K. 391 ; 24 L. .J. Ch. 369, 11. L. A female 
 defendant, above sixty years of age, who 
 had been deaf and dumb from her infancy, 
 was admitted to appear and defend by 
 
 guardian. Markle v. Markle, 4 John. Ch. 
 168; seeSIanlevereri'. Warren, 2 .Tones, 47. 
 
 5 Willyams v. Hodge, 1 Jl'N. & G. 516; 
 and see Patrick v. Andrews, 22 L. .J. Ch. 
 240. M. K.; Steel v. Cobb, 11 W. K. 298, 
 M. R. ; Newman v. Selfe, ib. 764, M. R. 
 
 C Ord. 5 Feb. 1861, r. 24. For form of 
 ummons, see Vol. III. 
 
 ■? liraithwnite's Pr. 47. 
 
 8 Holmes t'. Penney, 3 K. &J. 90; 3 ,Tur. 
 N. S. 80; see 2 Story Eq, Jur. § 1368; 
 Storv I'^q. PI § 71; Williams v. Coward, 
 1 Grant (Pcnn.). 21 ; Hamlin v. B-id^e, 24 
 Maine, 145; McDevniott ?^ French, 2 Mc- 
 Cartcr(N. J.), 78; Culvert, Parties, 269 
 and notwithstanding he is a bankrupt 
 Beales v. Spencer, 2 Y. & C. C C. 651 
 8 Jur. 236. 
 
 '■> Ed. Red. 80, 105; or is transported 
 under a criminal sentence. Story Eq. PL 
 § 71; Calvert on Parties, 414;" Broom's 
 Com. 584, and cases cited, ib.n, (b.)
 
 MARRIED WOIMEN. 
 
 179 
 
 tion order under the Divorce Acts : ^ in which cases, the wife is 
 considered in all respects as a feme sde^" and may be made a 
 defendant, ^ ithout her husband being joined ; ^ which, it seems, 
 she also may, if her husband is an alien enemy.* It appears also, 
 that in certain cases a husband may, in Equity, make his wife a 
 defendant^ thus, where she has before marriage entered into 
 articles concerning her own estate, she is considered to have made 
 herself a separate person from her husband, and, in such a case, 
 upon a motion by the husband to commit her for not answering 
 interrogatories, she was ordered to answer.^ A husband, however, 
 cannot make his wife a defendant, in order to have from her a dis- 
 covery of his own estate J 
 
 But although a wife cannot, except in the cases which have 
 been pointed out, be made a defendant to a suit without her hus- 
 band being joined as a co-defendant, yet there are cases in which, 
 although the husband and wife are both named as defendants, the 
 suit may be proceeded with against the wife separately. Thus, if 
 the suit relates to the wife's separate property, and the husband 
 be beyond seas, and not amenable to the process of the Court, the 
 wife may be served with, and compelled to answer, the bill.^ In 
 Dubois V. Hole^ a bill was filed against a man and his wife for a 
 demand out of the separate estate of the wife, and, the husband 
 being abroad, the wife Avas served with a subpoena, and, upon non- 
 appearance, was arrested upon an attachment ; and she having 
 stood out all the usual process of contempt, the bill was taken pro 
 confesso against her.^" It is to be observed, that, in order to entitle 
 the j>laintitl' to compel the wife to answer separately, the husband 
 must be actually out of the jurisdiction ; and the mere circum- 
 stance that he was a prisoner, was held not to be a sufficient 
 ground for obtaining an order for a separate answer.^^ 
 
 5 Brooks D. Brooks, Prec. Ch. 24; Storj' 
 
 Ch. IV. § 11. 
 •— — Y ^ 
 
 or he is an 
 alien enemy. 
 
 Wife may be 
 defendant in 
 his suit for 
 her separate 
 property ; 
 
 but not to 
 discover h'.s 
 estate. 
 
 Wife may be 
 
 proceeded 
 
 againstalone: 
 
 where her 
 separate prop- 
 erty is con- 
 cerned, and 
 husband 
 abroad. 
 
 • 20 & 21 \'ic. c. 85, §§ 21, 25, 26, 45; 
 21 & 22 Vic. c. 10«, §§ C-8; 27 & 28 Vic. 
 c. 44 ; Rud^'c r. Weedon, 4 I)e G. & J. 216 ; 
 6 Jur. N. S. 380, 723; lie Rainsdon's 
 Trusts, 4 Drew. 440; 5 Jur. N. S. 55; 
 Cooke f. Fuller, 26 Beav. It'j; and other 
 cases cite'l, ante, p. 00. If the marriage 
 has been dissolved, she is sued in her 
 maiden name, Evans v. Carrington, 1 .1. 
 & H. 598; 6 Jnr. N. S. 208, 7 Jur. N. S. 
 IM; 2 I)c (;., F. & J. 481, and where the 
 wife has obtained a protection order, she is 
 usually described in the title as " a married 
 woman, sued a< a feme sole." Tidman v. 
 TreRo, M. It. 1803, T. 44. 
 
 - (Jounfess of Portland v. Prodfccrs, 2 
 Vern. 104. 
 
 » 1 Inst. 132 b, 1.03 a.; 2 Kent (11th ed.), 
 I'. J, 155; I!f,l,iiiM)n r. l.'cvnoIdH, 1 Aiken, 
 '■\: I'xan I-. iMor;,'!in, 1 Ifill Ch. 8; Story 
 Kf|. I'l. § 71; fiiite, 00 note. 
 
 ■• Dccrlev c. Duchess of Mazarine, 
 Salk. 110; 2 Kent (11th cd.), 155; Story 
 Eq. Pl.§71. ^ 
 
 Eq. IM. § 71; 2 Story Eq. Jur. § 1368; 
 cmte, 110; but by making her a defendant, 
 he admits that the jiroperty in question is 
 her separate estate ; and, therefore, a de- 
 murrer was allowed to a bill, by whicli he 
 claimed to be entitled to thepropcrlv him- 
 self. Earl V. Ferris, 19 Beav. 67; 1 Jur. N. 
 S. 5. 
 
 8 Brooks V. Brooks, uM svp. 
 
 7 //Ad. 
 
 *• Story Eq. PI. § 71. An order for leave 
 to serve the bill and interrogatories seems, 
 in such case, necessary: Ilindc, 85; Nay- 
 lor r. Bvland, Seton, 1210. The order may 
 be obtamed on ex pttrtv motion, supported 
 by affidavit. For form of order, see Scion, 
 1240, No. 0; and for forms of motion piii)er 
 an<l aflidavit, see Vol. III. 
 
 » 2 Vcrn. 613. 
 
 ^^ 2 Vern. 614, in nolis ; see also Boll v. 
 Ilydc, Prec. Ch. 28, and the cases there 
 cited. 
 
 " Anon., 2 Ves. J. 332. If the wife be
 
 180 
 
 PERSONS AGAINST WHOM A SUIT MAY BE INSTITUTED. 
 
 Cm. IV. § 11. 
 *— — Y — — ^ 
 TThon' no 
 
 j>rii)u'rty, wile 
 i-;iim<>t be 
 proi'oiilod 
 aLTJiiiist witli- 
 out husband; 
 uiiloss she has 
 obtained au 
 ordtT to 
 answer 
 separately. 
 
 -Vt exeat not 
 
 jriantcd 
 
 against 
 
 /one cwert 
 
 executrix, or 
 
 adminis- 
 
 ti-atrix. 
 
 Wlien and 
 how husband 
 may obtain 
 an order to 
 defend sepa- 
 rately. 
 
 Liability of 
 husband, 
 •where order 
 not obtained. 
 
 The Court will ooin]Hl a woman ti>aj)i)eav and answer sepanitely 
 from her husband, where the demand is against lier in resj)eet of 
 her se2)arate estate, and the husband is only named for conl'ormity, 
 and cannot be aft'ected by the decree ; where there is no separate 
 ]iropcrty belonging to the wife, she cannot be iirocecded against 
 without her husband, unless she has obtained an order to answer 
 separately : in Avhieh case, she Avill be liable to the usual ^'I'ocess 
 of contempt, if she does not put in her ans\TCr in conformity Avith 
 the order which she herself has obtained.^ 
 
 It is to be observed here, that a/b/ne covert executrix or admin- 
 istratrix is not considered as having a separate proi^erty in the 
 assets of her testator or intestate ; and upon this ground. Lord 
 Eldon, in Pannell v. Taylor^ held, that a writ of ne exeat regno^ 
 against a mamed woman sustaining that character, could not be 
 maintained. In that case, his Lordship had originally granted the 
 writ, upon the authority of Moore v. Meynell^ and Jernegan v. 
 Glasse / * but upon further argument, he was of opinion that it 
 could not be maintained : observing, that if he had been apprised 
 of the circumstances of the case of Moore v. Meynell (upon the 
 authority of wdiich Lord Ilardwicke appears to have acted in 
 Jernegan v. Glasse)^ he should not have granted the writ. 
 
 Where a married woman is living separate from her husband, 
 and is not under his influence or control,^ or where she obstinately 
 refuses to joins in a defence with him,*' the Court will, ujDon the 
 api^lication of the husband, give him leave to put in a separate 
 answer. The application is made by motion, of which notice'' 
 must be given to the plaintiff,^ and must be supported by an affi- 
 davit of the husband,^ verifying the circumstances ; and process of 
 contempt Avill then be stayed against him for want of his wife's 
 answer, and the plaintifi" must proceed separately against the wife:^" 
 
 If the sei)arate answer of the husband is received and filed at 
 the Record and Writ Clerks' Office, before an order for him to 
 
 absent, the husband may obtain time to 
 issue a commission to obtain the wife's 
 oath to the answer; and if she refuse to 
 answer, the bill may be taken /iro amfasso 
 against her. Leavitt v. Cruger, 1 I'aige, 
 422. See Halst. Dig. 170-174. The plain- 
 tiff may stipulate to receive the joint 
 answer, sworn to by the husband alone. 
 Leavitt v. Cruger, 1 Paige, 422 ; New York 
 Chem. Co. v. Flowers, 6 I'aige, 654. 
 
 1 Powell V. Prentice, Kidg. 258. Hus- 
 band and wife may defend a suit inforTna 
 pauperis, and the order for leave to do so is 
 of course. Pitt v. Pitt, 17 Jur. 571, V. C. S., 
 1 Sm. & G. App. 14. 
 
 a T. & R. 96, 103. 
 
 3 1 Dick. 80. 
 
 4 lb. 107; 3 Atk. 409; Amb. 62; and 
 T. & K. 97, n. (6.); but see Moore v. Hud- 
 
 son, 6 Mad. 218; 2 C. P. Coop. t. Cott. 
 245. As to the writ of ne exeat, see post, 
 Chap. XXXVIII. 
 
 6 Chambers i'. Bull, 1 Anst. 269 ; Piarry 
 V. Cane, 3 Mad. 472; Garey v. Whitting- 
 ham, 1 S. & S. 163; Gee v. Cottle, 3 M. & 
 C. 180 ; Nichols v. "Ward, 2 M'N. & G. 140. 
 
 Ld. Red. 105, Pain v. , 1 Ca. in 
 
 Ch. 290; Murriet v. Lyon, IVunb. 175; 
 Pavie V. Acourt, 1 Dick. 13. 
 
 7 For form of notice see Vol. III. 
 
 8 Whether notice should be given to the 
 wife also, quwre; see 1 S. & S. 163; 2 
 M'N. & G. 143. 
 
 a See Barry v. Cane, 3 Mad. 472, n.; 
 for form of affidavit, see Vol. III. 
 
 W See Bray v. Akers, 15 Sim. 610; 
 Story Eq. PI. § 71; Leavitt v. Cruger, 
 1 Paige, 421.
 
 MARRIED WOMEN. 
 
 181 
 
 answer separately has been obtained, it is an irregular proceeding ; ^ 
 and the j^laintiff may move, on notice to the husband, that the 
 answer may be taken off the file for irregularity ; " or he may sue 
 out an attachment against the husband, for want of the joint 
 answer ; ^ or he may waive the irregixlarity, and move, on notice to 
 the wife, and an affidavit of the facts, that she may answer sepa- 
 rately.* The husband, if in custody for not fihngthe joint answer, 
 cannot clear his contemj)t by putting in the separate answer of 
 himself; ^ he should move, on notice to the plaintiff,® supported by 
 his own affidavit "^ of the facts, for leave to answer and defend sep- 
 arately from her, and that, uj)on putting in his separate answer, he 
 may be discharged from custody.* 
 
 Where a married woman claims an adverse interest,^ or is hving 
 separate from her husband,^" or he is mentally incompetent to 
 answer," or she disapproves of the defence he intends to make,^^ she 
 may, on motion or petition of course,-^^ obtam an order to defend 
 separately ; ^* and if a husband insists that his wife shall jjut in an 
 ansAver contrary to what she believes to be the fact, and by menaces 
 prevails upon her to do it, this is an abuse of the process of the 
 Court, and he may be punished for the contempt.^'' 
 
 If the husband has put in his answer separately from his wife, 
 under an order so to do ;^® or without an order, and the plaintiff 
 desires to waive the irregularity ; " or an order has been made, 
 exempting the husband from process for want of her answer ; ^* or 
 if she refuses to join with him in answering;^® or if he is abroad ;2° 
 or if the suit relates to her separate estate, and she is abroad,-^ or 
 
 Ch. IV. § 11, 
 
 ^— -^^ ' 
 
 When and 
 how wife maj' 
 obtain order 
 to defend 
 separately. 
 
 Wlien and 
 how plaintiff 
 may obtain 
 order for wife 
 to answer 
 separately. 
 
 1 Gee V. Cottle, 3 M. & C. 180; Nichols 
 t'. Ward, 2 .M'N.& G. 140; and see Garey 
 V. Whiltingham, 1 S. & S. 163; Len- 
 agiian r. Smith, 2 Pliil. 539. 
 
 ^ Gee v. Cottle, and Nichols v. Ward, 
 uf)i sup. ; Collard i;. Smith, 2 Ijeasley (N. 
 .1.), 43, 45. For form of notice, see Vol. 
 III. 
 
 8 Gee V. Cottle, ubi sup.; Garey v. Whit- 
 tingham, 1 S. & S. 1G3; Nichols t'. Ward, 
 2 M'N. & G. 140. 
 
 ■• Nicliols V. Ward, 2 M'N. & G. 143, n. 
 For forms of notice and affidavit, see Vol. 
 III. 
 
 fi Gee V. Cottle, 3 M. & C. 180. 
 
 •5 Qittere, if the wife should bo served, 
 see 1 S. & S. 103; 2 .M'N. & G. 143. 
 
 7 Harrv r. Cane, 3 Mad. 472, n. 
 
 8 See \ichols v. Ward, 2 M'N. & G. 
 143; Seton, 1255, No. 5. For forms of 
 notice of motion and aflidavit iu support, 
 «ee Vol. III. 
 
 " Ld. Jted. 104; Anon., 2 Eq. Ca. Ah. 
 CC, pi. 2. 
 
 i« Ld. Red. 104 ; Kudge v. Weedon, 7 W. 
 U. 30K, V. C. K., n. 
 
 11 Ivstcotirt r. Kwington,0 Sim. 252, and 
 cases there referred to; 2 .Iiir. 414. 
 
 12 Ld. Ued. 104; Kx parte Ilnlsam, 2 
 Atk. 60. 
 
 13 For form of order on motion, see 
 Seton, 1254, No. 3; and for forms of mo- 
 tion paper and petition, see Vol. III. 
 
 !•! The order js, according to the present 
 practice, usually obtained on petition of 
 course, at the Kolls; and it appears from 
 information obtained from the secretary 
 of the M. E., that the practice is to make 
 the order on the ap|)lication of tlie wife, 
 ■whenever she is made a defendant in re- 
 spect of Iicr separate estate, without inquir- 
 ing wiiether in fact the interests of flic 
 husband and wife are adverse. If their 
 interests are adverse, the order Avill be 
 made, though the suit does not relate to 
 her separate estate. 
 
 16 Lx parte Ilalsam, 2 Atk. 50. 
 
 10 Brny v. Akers, 15 Sim. 610; Seton, 
 1255, No. 4. 
 
 17 See Nichols v. Ward, 2 M'N. & G. 
 140. 
 
 18 lb. 143, n. 
 
 19 Woodward r. Conebenr, 8 Jur. 042, 
 V. C. W. 
 
 -'> Duijois ;•. Hole, 2 Vern. 613; Hunvan 
 V. Mortimer, Mad. 278; Lethlcy r. 'lay- 
 lor, Sim. 252. 
 
 ■ii Nichols V. Ward,2 M'N. & G. 143, n.
 
 182 
 
 PERSONS AGAINST WHOM A SUIT MAY BE INSTITUTED. 
 
 Cii. IV. § n. thev 1 
 
 Where cover- 
 ture denied. 
 
 Wife's separ- 
 ate answer 
 should have 
 an order to 
 waiTant it; 
 
 except to hus- 
 band's bill. 
 
 Answer with- 
 out order, 
 may )je 
 accepted. 
 
 they livo apnrt ;^ or il" tlie linsbnnd, from iiUMit:il incapacity, is un- 
 able to join with her in answering;- or if, after the joint answer is 
 put in, the husband goes abroad, and the bill is amended, and an 
 answer is required thereto ;' or if the fact of marriage is in dispute 
 between the husbanil andAvife:'* the ]ilaintiir, where no order for 
 her to answer separately has been obtained by licr or her husband, 
 may, on motion, supported by an affidavit of the facts, obtain an 
 order ^ that she may answer se])arately from her husband.^ Notice 
 of the motion '^ should be given to the wife ; ^ and if she is abroad, 
 an order for leave to serve her there with the notice is necessary,® 
 and may be obtained on an ex jKirte motion.^" 
 
 Where a woman was made a defendant to a bill filed for the 
 purpose of establishing a will against her, and a man who pre- 
 tended that he was her Imsband, but which tlie woman denied ; on 
 her making application to ansAver separately. Lord IlardAvicke 
 ordered, that she should be at liberty to put in a separate ansAver, 
 but without prejudice to any question as to the validity of the 
 marriage." 
 
 • In general, the separate ansAver of a feme covert ought to haA^e 
 an order to warrant it, and if j^ut in Avithout an order, it may be 
 taken off the file ; ^^ but if a husband brings a bill against his wife, 
 he admits her to be a fe^ne sole^^ and she must put in her answer 
 as such, and no order is necessary to Avarrant her so doing ; ^* and 
 if she does not put in her answer, the husband may obtain an order 
 to compel her to do so.^^ 
 
 B\it although, strictly speaking, the answer of a feme covert, if 
 separate, ought to be warranted by an order, yet if her ansAver be 
 put in Avithoiit such an order, and the same be a fair and honest 
 ansAver, and deliberately put in Avith the consent of the husband, and 
 
 1 AYickens v. Marchioness of Town- 
 send, cited, 1 Smith's Pr. 410, n.; Seton, 
 125C. 
 
 2 Estcourt v. Ewington, Sim. 252; 2 
 Jur. 414. 
 
 3 Carleton v. M'Knzie, 10 A^es. 442. 
 
 ■* Longwortli v. Bellamy, Seton, 1245. 
 
 5 For forms of order, see Seton, 1255, 
 Nos. 4, 6. 
 
 6 See Hope v. Carnegie, L. R. 7 Eq. 254; 
 S. C. ib. 263. 
 
 '' For forms of notice of motion and' affi- 
 davit in support, see Vol. III. 
 
 8 Nichols V. Ward, 2 M'N. & G. 143, n. ; 
 Seton, 1255, 1250; but see Bray v. Akcrs, 
 15 Sim. CIO; Hope v. Carnegie, L. K. 7 
 Eq. 263. 
 
 ■J See Nichols v. Ward, 2 M'N. & G. 
 143, n. 
 
 w For form of motion paper, sec Vol. 
 III. 
 
 n AVvbourn v. Blount, 1 Dick. 155. 
 
 12 Wyatt's P. R. 53; and see Higgiuson 
 
 r. Wilson, 11 Jur. 1071, V. C. K. B. An 
 answer of a wife, put in separately, without 
 a previous order, was suppres.sed, for ir- 
 regularit}'. Perine v. Swaine, 1 .lohn. Ch. 
 24; Leavitt *. Cruger, 1 Paige, 421; Col- 
 lard V. Smith, 2 Beaslev(N. J.), 43; Rob- 
 bins V. Abrahams, 1 Ilafst. Ch. 10. But the 
 irregtilaril}' will be Avaived bj' the plain- 
 tiff" liling a repliciition. Fulton Bank v. 
 JScacii, 2 Paige, 307; S. C. G AVend. 36; 
 Collard v. Smitli, 2 Beasloy (N. J.), 45. If 
 tlie wile apprehend tiiat lier liusbaud will 
 not make a proper defence for her, she 
 may, as of course, obtain leave to answer 
 sepanUel}'. Lingan v. Henderson, 1 Bland, 
 270; see Anon., 2 Sumner's Ves. 332, note 
 (a); Ferguson v. Smitji, 2 .John. Ch. 139. 
 
 13 See Earl v. Ferris, 19 Beav. 07; 1 
 Jur. X. S. 5; ante, p. 110. 
 
 11 Kx parU Strangcways, 3 Atk. 478; 
 Ld. Red. 105. 
 
 15 Ainslie v. Medlicott, 13 Ves. 266.
 
 MARRIED WOMEN. 
 
 183 
 
 the plaintiff accepts it and replies to it, the Couit ^vill not, on the 
 motion of the wife, or of her executors, set it aside.^ 
 
 Tlie separate answer of a mari'ied woman is put in by her in the 
 same manner as if she were ^ferne sole, without joining any guar- 
 dian or other person with her ; ^ and when put in under an order, 
 she has the full time for answering from the date of the order.^ 
 When an order to answer separately has been obtained, it should 
 be pi'oduced to the Commissioner before whom the answer is 
 swora, and be referred to in the jurat ; * and the order must be 
 produced at the Office of the Record and "Writ Clerks, at the time 
 of fihng the answer.^ If, however, the married woman is an infant, 
 she cannot answer, either separately or jointly, until a guardian 
 has been appointed for her ; ^ such ajipointment will be made by 
 order, on motion or petition of com-se, supported by affidavit of the 
 fitness of the proposed guardian J 
 
 A married woman, obtaining an order to answer separately from 
 her husband, renders herself liable to process of contempt, in case 
 she does not put in her ansAver pursuant to the order ; ® but an 
 order for leave to sue out such process is necessary, and may be 
 obtained by the plaintiff on an ex parte motion.^ 
 
 Where husband and wife are defendants to a bill, the wife will 
 not be compelled to answer to any thing which may expose her to 
 a forfeiture ; ^° neither is she compellable to discover whether she has 
 a separate estate, unless the bill is so fi-amed as to warrant the 
 Court in making a decree against such estate. Thus, where a bill 
 was filed against a man and his wife, for the purpose of enforcing 
 the specific perfonnance of an agreement, alleged to have been 
 entered into by an agent on their behalf for the jiurchase of an 
 estate from the plaintiff, and in support of the ])laintiff's case, it 
 was alleged tliat the wife had se})aratc moneys and property of her 
 own, and Jiad joined with her husband in authorizing the agent 
 to enter into the agreement, but the bill jn-aycd merely that the 
 husband and wife miglit be decreed specifically to pci-form the 
 agreement, and diil not seek any specific relief against her separate 
 estate : tlie wife, having obtained an order to that effect, put in a 
 
 Ch. IV. § 11. 
 
 Ftme, covert, 
 obtaining 
 order to 
 answer, is 
 liable to 
 process, on 
 default, 
 
 but is not 
 bound by- 
 answer to 
 expose herself 
 to forfeiture ; 
 
 nor to dis- 
 cover her 
 separate 
 estate, unless 
 case made 
 for a decree 
 against it; 
 
 1 Duke of Chandos v. Talbot, 2 P. Wms. 
 371. 
 
 2 For formal parts of such answer, sec 
 
 Vol. irf. 
 
 3 Jackson r. Ilaworth, 1 S. & S. 161. 
 * For form of jurat, see Vol. III. 
 ''•ISraithwaitc's I'r. 45, 3;»7. 
 
 Colmfln f. Xorthcotc, 2 Hare, 147; 7 
 Jur. 028; Uraithwaite's I'r. 47. 
 
 7 For forms of motion paper and peti- 
 tion, and affidavit in support, see Vol. 
 III. 
 
 8 Towdl V. Prontice, Ridgw. P. C 258; 
 Lenaghan v. Smith, 2 Phil. 5-37; Hunyan 
 V. Mortimer, G jMad. 278; Home v. Patrick, 
 
 30Beav. 405; 8 .Tur. N. S. 851; Bull v. 
 Withcy, 9 Jur. N. S. 695, V. C. S.; Gra- 
 ham V. Fitch, 2 De G. & S. 246; 12 Jur. 
 83.3. 
 
 Taylor v. Taylor, 12 Beav. 271 ; Tliick- 
 nesse t\ Acton, 15 Jur. 1052, V. C. T.; 
 Home r. Patrick, Bull r. Withey, iihi fiip. 
 As to notice in other cases, see Uraliani i: 
 Fitch, iil/i .in;).; Hushell r. Busheil, 1 S. & 
 S. 164; M'Kennar. Everett, Seton, 1256, 
 No. 7. For form of motion paper, see 
 Vol. HI. 
 
 1" Wrottesley v. Bendisb, 3 P. Wms. 235, 
 238.
 
 184 
 
 PERSONS AGAINST ^VIIOM A SUIT MAY BE INSTITUTED. 
 
 Cn. IV. 5 11. 
 
 nor to expose 
 her husband 
 to a charge 
 of telony. 
 
 Cannot be 
 made defend- 
 ant for tlie 
 mere jjin-pose 
 of discovering 
 husband's 
 vouchers. 
 
 Her answer 
 not read 
 against 
 husband, 
 except where 
 marriage con- 
 cealed with 
 his consent. 
 
 Admission of 
 will in separ- 
 ate answer 
 
 so|):iv;ito (IcMHunvr ;is to so iihk']i ol'die bill as rc(][uire(l from licr a 
 discovory wliellior she had not scjiarate money and property of her 
 OAvn, and answered the rest. lJ]»on ari;tnnei\t, Sir Thomas Phimer 
 V. C. allowed the demurrer, on the ground that as tlie decree, in 
 cases where a feme covert was lield liable, had been uniformly 
 against the separate estate, and not against the feme covert herself, 
 and as the bill did not seek any decree against any trustees, or 
 particular fund, but only against the wife, it could not be supported, 
 and the interrogatory, if answered, would consequently be of no 
 xise.^ 
 
 A wife cannot be comj^ellcd to make a discovery which may 
 expose her husband to a charge of felony ; and if called ujion to 
 do so, she may demur.'^ 
 
 In like manner, a married woman cannot be made a party to a 
 suit, for the mere purpose of obtaining discovery from her, to be 
 made use of against her husband;^ therefore, in Xe Texiery. The 
 Margrave o/ ^l>K<?^;rtc7i,* where a bill was filed against the Margrave 
 to recover a balance due to the plaintiff" upon certain contracts, to 
 which bill the Margravine was made a party, as the agent of her 
 husband, for the purpose of eliciting fi-om her a discovery of cer- 
 tain vouchers, which were alleged to be in her possession : a 
 demurrer by the Margravine separately, was allowed by Lord 
 liosslyn, and afterwards upon rehearing by Lord Eldon, after the 
 Margrave's death. Upon the same i^i'inciiDle, where a bill Avas 
 filed against a man and his wife for discovery in aid of an action 
 at law, brought against him to recover a debt due from the wdfe 
 dwn sola, a separate demurrer jjut in bj^ the wife was allowed.^ 
 
 In Mutter v. Baldiohi^ the Court agreed clearly, that a wife 
 can never be admitted to answer, or otherwise as evidence, to 
 charge her husband; and that where a man marries a wddow 
 executrix, her evidence will not be allowed to charge her second 
 husband ; ' but in that case, the wife having held herself out as a 
 feme sole, and treated with the plaintiff and other parties to the 
 cause, who were ignorant of her marriage, in that character, and 
 it having been proved in the cause that on some occasions the 
 husbaml had given in to the concealment of the marriage, the 
 Court allowed the answer of the wife to be read as evidence against 
 the husband, and decreed accordingly. 
 
 It was supposed that the admission of a Avill, in the separate 
 answer of a married Avoman, who was the heiress-at-law of the 
 
 1 Francis v. Wigzell, 1 INIad. 258. 
 
 2 Cartwright v. Green, 8 Yes. 405, 410 ; 
 seeStorj'Efj. Fl.?519. 
 
 8 2 Story Kq. Jur. § 1496. 
 * 5 Yes. 322, 329; and 15 Yes. 169, 
 164. 
 
 6 Darron v. Grillard, 3 Y. & B. 165; see 
 Metier v. Metier, 3 C. E. Green (N. J.), 
 270. 
 
 6 1 Eq. Ca. Ab. 227, pi. 15. 
 
 T See Cole v. Gray, 2 Yern. 79.
 
 MAERIED "WOMEN. 
 
 185 
 
 testator, was siifficient evidence to enable the Court to declare 
 the will established ; ^ but it has now been decided, that such 
 evidence is not sufficient for that pm-pose, or to bind her inheri- 
 tance.^ As a general rule, however, the sepai'ate answer of a 
 maiTied woman may be read against her.^ 
 
 Where a husband and vAfe are made defendants to a suit 
 relating to personal proj)erty belonging to the wife, and they put 
 in a joint ansAver, such answer may be read against them, for the 
 purpose of fixing them with the admissions contained in it ; biit 
 where the subject-matter relates to the inheritance of the wife, it 
 cannot;* and the facts relied upon must be proved against them 
 by otlier evidence. Thus, in Merest v. Hodgson^ the L. C. B. 
 Alexander refused to permit the joint answer of the husband and 
 wife to be read, but ordered the cause to stand over, to give the 
 plaintiffs an oj^portunity of jDroving the facts admitted. And it has 
 been held, that the joint answer of the husband and wife may be 
 read against the wife with reference to her separate estate, as well 
 as her separate answer, on the ground that in such a case she can- 
 not be compelled to answer separately.® 
 
 From the report of the case of Eyton v. Eyton^ it appears, 
 on first view, as if the separate answer of a husband had been ad- 
 mitted by the Master of the Rolls to be read as evidence against 
 the wife in a matter relating to her inheritance ; but upon closer 
 attention it will be found, that, in all probability, the reason of 
 the decree in that case was, that his Honor conceived that the 
 counterpart of the settlement, which appears to have been pro- 
 duced, was considered to be sufficient evidence of the settlement : 
 at least, this appears to have been the grouml upon which the 
 case was decided on the appeal befoi*e the Lord Keejier Wright. 
 
 In IVardy. 3Ieath,^ a bill Avas exhibited against the husband 
 and Avife, concerning the M'ife's inlieritance ; the husband stood 
 out all process of contempt, and upon its being moved that the 
 bill might be taken p^'o confesso, it Avas opposed, because the Avife, 
 having in the interim obtained an order to that effect, put in an 
 answer, in Avhich she set forth a title in herself; and the Court 
 decreetl, that the bill should be taken ^>?'o confesso against the 
 Imsband only, and that he should account for all the profits of the 
 
 Cn. IV. § 11. 
 
 of married 
 woman, not 
 sufficient 
 evidence to 
 establish will, 
 or bind her 
 inheritance. 
 
 Joint answer 
 of husband 
 and ■\vife may 
 be read 
 against them, 
 in matters 
 relating to 
 personal 
 estate; but 
 not where suit 
 relates to her 
 inheritance ; 
 it may be 
 read, as well 
 as her separ- 
 ate answer, in 
 suit relating 
 to her separ- 
 ate estate. 
 
 Separate 
 ansjver of 
 husband can- 
 not be read 
 against wife, 
 as to her 
 inheritance; 
 
 Bill cannot be 
 taken /Jrocon- 
 fesso against 
 her, wlverc 
 she answers 
 separately on 
 his default. 
 
 1 Codrington v. Karl of Shelburn, 2 
 Dick. 475. 
 
 2 IJrown V. Ilflywnnl, 1 Hare, 432; 6 
 .Tiir. 847; Hce (Joniley v. Hendricks, 8 
 Blackf. 180. 
 
 '* F.d. Red. 104, 105. Tlic peculiar rela- 
 tions of husband and wife will not pro- 
 tect her from making; a discovery n-laling 
 solely to her own conduct, and aflVcting 
 only her own interests. Metier v. Metier, 
 3C. E. Green (N. J.), 270. 
 
 * Evans r>. Cogan, 2 P. Wms. 449. 
 
 c 9 I'ri. 503; see also Elston v. Wood, 2 
 M. & K. 678. 
 
 c (jallowr. Howie, 1 De G. & S. 531; 
 11 .Tur. 084; Clivev. Carew, IJ. & II. 199, 
 207;5.Iur. N. S. 487. 
 
 7 Tree. Cli. 110. 
 
 » 2 C'lia. Ca. 173; 1 Eq. Ca. Ab. 05, 
 pi. 4.
 
 186 
 
 PERSONS AGAINST WHOM A SUIT MAY BE INSTITUTED. 
 
 Cii. IV. § 11. 
 
 AVhen sepa- 
 rate estate; 
 may be 
 charged : 
 
 by testamen- 
 tary charge 
 of debts ; 
 
 land whk'li lie li:ul roceivcil since tlic covcm-Iuic, .-md the }>rotits 
 which sliould be received during coverture. 
 
 It may be observed, in this jilace, that there is no case in which 
 the Court has made a personal decree against a feme covert 
 alone.^ She may pledge her separate property, and make it an- 
 swerable for her engagements ; "^ but Avhere her trustees are not 
 made parties to a bill, and no particular fund is sought to be 
 charged, but only a personal decree is prayed for against her, the 
 bill cannot be sustained. Uj^on this ground, in the case of 
 Francis v. Wigzell,^ before referred to, where a bill was filed 
 against a husband and Avife for the specific jierformance of an 
 agreement for the j^urchase of an estate, charging that the w^ife 
 had separate property suflicient to answer the ])urchase-money, 
 but "without praying any si)ecific relief against such separate estate, 
 a demurrer put in by the wife, to so much of the bill as sought 
 discovery from her whether she had a separate estate or not, was 
 allowed. 
 
 It appears, however, that Avhcre a married Avoman, having a 
 general poAver of appointment, by A\dll, over real or personal estate, 
 makes, by her Avill, her separate property liable to the payment 
 of her debts, a Court of Equity Avill lay hold of the estate so 
 devised, and apj^ly it in the payment of written engagements 
 entered into by her, and in the discharge of her general debts. 
 In the case of Owens v. Dic7ce?ison,'^ Avhere a married woman had 
 made her Avill in pursuance of a power, and thereby charged her 
 real estate wdth the payment of debts. Lord Cotteuham entered 
 into the principles upon which Equity enforces the contracts of 
 married women against their separate estate, and rejected the 
 theory that such conti'acts are in the nature of executions of a 
 power of appointment : he observed, " The Adew taken by LoM 
 ThurloAA', in Hulme y. Tenant^ is more correct. According to that 
 vicAV, the separate j^i'operty of a married Avoman being a creature 
 of Equity, it follows, that, if she has power to deal with it, she has 
 the other power incident to property in general, namely, the 
 
 1 Hulme V. Tenant, 1 Bro. C. C 16, 21; 
 Franci.s t'. AVigzcU, 1 Mad. 258, 263; Ay- 
 lett V. Ashton, 1 ^\. & C. 105, 111; 2 Kent 
 (11th ed.), 1G4; see also .Jordan v. Jones, 2 
 Phil. 170, 172, where the Court refused to 
 compel a married woman to execute a 
 conveyance of an estate not settled to her 
 separate Ase; but in cases of tliis descrip- 
 tion, the married woman can usually be 
 established to be a trustee, and then an 
 order under the Trustee Acts may be ob- 
 tained. 
 
 2 See Sperling v. Rochfort, 8 Sumner's 
 Ves. 175, 182, Perkins's note (a), and 
 cases cited; Fetteplace r. Gorges, .3 I5ro. 
 C. C (Perkins's ed.) 8, 10, and note, and 
 cases cited; 2 Kent (11th ed.), 164, 165, 
 and notes. A Avife may bestow her sepa- 
 
 rate property, hy appointment or other- 
 wise, upon her liusband as well as upon a 
 stranger. 2 Story Eq. Jur. §§ 1395, 1396; 
 Methodist Epis. Church v. Jaques, .3 .Fohn. 
 Ch. 86-114; Bradish v. Gibbs, 3, John. Ch. 
 523. Her separate estate, upon bur appli- 
 cation and consent given in Court, may 
 be charged with and made liable for his 
 debts. Demarest v. AVvncnop, 3 John. 
 Ch. 144 ; Field v. Sowle, 4 Russ. 112. She 
 maj-even become the debtor of her husband 
 for money borrowed of him to improve her 
 separate estate. Gaidner v. Gardner, 22 
 AVencf. 526; S. C. 7 Paige, 112; 2 Kent 
 (11th ed.), 164 and note. 
 
 3 1 Mad. 258. 
 
 4 G. &P. 48, 54; 4 Jur. 1151.
 
 MAERIED WOMEN. 
 
 187 
 
 power of contracting debts to be paid out of it ; and inasmuch as 
 her creditors have not the means at Law of compelling payment 
 of those debts, a Court of Equity takes upon itself to give effect 
 to them, not as personal habilities, but by lapng hold of the 
 separate property, as the only means by which they they can be 
 satisfied ; " acting upon this principle. Lord Cottenham referred it 
 to the Master, to inquire what debts there were to be paid under 
 the provisions of the will. In order to bind her separate property, 
 however, there must be a contract, fraud, or breach of trust ; but 
 the contract, it would seem, need not be in writing.^ 
 
 Where the Court thought a mamed woman defendant ought to 
 pay certain costs, and it did not appear that she had separate 
 estate, the Court gave the plaintiff hberty to apply for payment 
 of these costs, in case of any moneys becoming payable to her 
 separate use." 
 
 If the equity of redemption of a mortgaged estate comes to a 
 maiTied woman, and a bill is brought against her and her husband 
 to foreclose it, upon which a decree for foreclosure is pronounced, 
 the wile is hable to be absolutely foreclosed, though during the 
 coverture, and will not have a day given her to redeem after her 
 husband's death ; ^ and where a widow filed a bill to set aside a 
 decree of foreclosure pronounced against her and her husband 
 during coverture, and to be let in to redeem, and the mortgagee 
 pleaded the proceedings and decree in the former cause, the plea 
 was allowed.* 
 
 Where an estate has been sold vmder a decree of the Court, a 
 feme covert is as much bound by the decree as a/e??^c sole, although 
 it may be to her prejudice ; as it would most ruinously depreciate 
 the value of property sold under a decree in Equity, if, where there 
 is neither fraud nor collusion in the purchaser, his title could be 
 defeated. It is to be observed, however, that a decree obtained by 
 fraud is invaUd.'' 
 
 It may here be mentioned, that a married woman defendant, in 
 case she desires to appeal against a decree or order made in the 
 suit, must appeal by her next friend." 
 
 Ch. rv. § 11. 
 
 by contract, 
 fraud, or 
 breach of 
 trust. 
 
 Leave given 
 to apply for 
 costs against 
 separate 
 estate. 
 
 Perm covert 
 bound by a 
 decree of fore- 
 closure ; 
 
 and by a sale 
 under a 
 decree. 
 
 1 Vnughan r. Vanderstegen, 2 Drew. 
 1C5, 303; Hobday r. Peters (No. 2), 28 
 Bcav. 3.54; 6 .hir. N. S. 7'J4; Wright v. 
 Chard, 4 Drew. 073; 5 .lur. N. S. 13.34; 1 
 De G., I'. & .». 507 ; .lur. N. S. 470 ; Clivo 
 V. Carcw, 1 .1. & 11. 10'.); r> .lur. N. S. 487; 
 JohnKin J'. Gallngher, 7 .lur. N. S. 273; 'J 
 W. K. .000, L. .1.1. ; 3 l)?. a., V. Sc .1. 404; 
 Boldcn r. Nirholav, 3 .Fur. N. S. KR4, V. C. 
 W.; Shattock v. .Sliattock, L. H. 2 Kq. 182, 
 M. K.: iJogcrs ?•. Ward, 8 Allen, 387; 
 Picard r. Ilino, ],. U. 5 Ch. Ap. 274; 2 
 Story Kq. .lur. §§ 1400, 1401; Gardner r. 
 Gardner, 22 Wend. 626. 
 
 2 Pemberton v. M'Gill, 1 Jur. N. S. 
 1045, V. C. W. 
 
 « Maliack v. Gnlton, 3 P. Wms. 352; but 
 the decree ought not to be made absolute 
 at once, even by consent, on an aflidavit 
 verifying tlie amount due. ^Harrison v. 
 Kciiiiodv, 10 Ilare, App. 51. 
 
 ■• MaMack r. (iaiton, 3 P. Wms. 352. 
 
 5 IJurkc 1-. Crosl)ic, 1 Ball & B. 489; 
 Kennedy v. Dalv, 1 Sell. & I.ef. 355, 
 
 Klliot i>. Incp, 7 De G., M. & G. 475; 3 
 .Jur. N. S. 0!i7; or obtain an order to ap- 
 peal ni fdrnu'i jniu//eris ■w\l]utni. Crouch r'. 
 Waller," 4 De <;. & .J. 43; 5 Jur. N. S. 320; 
 ante, pp. 39, 40, 111. 
 
 Feme covert 
 defendant, if 
 she appeals, 
 must do so by 
 her next 
 friend.
 
 18S 
 
 PERSONS AGAINST WHOM A SUIT MAY BE INSTITUTED. 
 
 IV. § 11 
 
 Stiit abates 
 on wife's 
 death. 
 
 "Where a suit lins been instituted against a man and his wife, 
 and the luisband dies pending the proceedings, the suit Avill not be 
 abated.^ Wlien a female defendant marries, no abatement takes 
 phice ; but the husband's name sliouki be introdueed in all subse- 
 quent proceedings.'- 
 
 But although, where a bill has been exhibited against a man and 
 his wife, and the husband dies 2)ending the suit, there is no abate- 
 ment, and the Avife -w-ill be bound by the former answer and pro- 
 ceedings in the cause, yet where, by the death of the husband, a 
 new interest arises to the wife, it seems that she will not be bound 
 by the former answer. Thus, where a bill was filed by the assign- 
 ees of a husband to compel the specific performance of a contract 
 for the sale of a j^art of his estate, to which the wife was made a co- 
 defendant in resiDcct of certain terms of years which were vested 
 in her as administratrix of a person to whom the terms had been 
 assigned to protect the inheritance, and she had joined with her 
 husband in putting in an answer, by Avhich she claimed to be dow- 
 able out of the property: upon the death of her husband, an 
 objection was taken to the suit being proceeded with till a supple- 
 mental bill had been filed against her, in order to give her an 
 opportunity of making another defence in respect of the right of 
 dower which had become vested in her, and Sir Thomas Plumer 
 M. R. said, that her former answer could not be pressed against 
 her, because, in the former case, she was made a party as adminis- 
 tratrix ; but the right to dower which she then had was not claimed 
 by her as representative, but in her own character ; and it was an 
 interest that had devolved upon her since her answer was put in ; 
 his Honor, therefore, held the suit to be defective.' A supplemental 
 bill was thereupon filed against the widow, in order to enable her 
 to claim, in her sej^arate character, what she had before claimed 
 in her character of wife. Upon hearing the cause, however, Lord 
 Eldon, although he recognized the principle laid down by Sir 
 Thomas Plumer, said, that he should have been inclined, in that 
 case, to have come to a difibrent decision, as he thought that it 
 would have been difficult for the widow, in her answer to the sup- 
 plemental bill, to state her case difierently from the way in which 
 it had been stated in her former answer.* It is conceived that 
 under the j^resent practice, however, it would not be held necessary 
 for the plaintiff to take any step in the cause, in order to enable a 
 widow to raise a new defence. 
 
 It follows, from what has been before stated, that where a man 
 
 1 Ld. Rd. 59 ; Shelberry v. Briggs, 2 
 Vern. 249; 1 Eq. Ca. Ab. 1, pi. 4; Dur- 
 baine r. Knight, 1 Vern. 318; 1 Eq. Ca. 
 Ab. 126, pi. 7. 
 
 2 Ld. Ked. 58; Wharam v.Broughton,! 
 
 Ves. S. 182; and see Sapte v. Ward, 1 Coll. 
 25. For the title of tlieir joint answer in 
 such case, see Vol. III. 
 
 3 Mole V. Smith, 1 J. & W. 665, 668. 
 
 4 Mole V. Smith, Jac. 490, 495.
 
 MARRIED WOMEX. 189 
 
 and his wife are defendants to a suit, if the wife dies there will be Ch. IV. § ii. 
 
 an abatement of the suit. Thus, where a man ha\'ing married an "*— — y — —^ 
 
 administratrix, the jjlaintiff obtained a decree against him and his 
 
 wife, after which the wife died : it was held, that the suit was 
 
 abated, and that the new administrator ought to be made a party, 
 
 before any further proceedings could be had in the cause.-^ 
 
 For the means by which the plaintiff compels the aj^pearance Appearauce 
 
 and answer of the husband and wife, in those cases in which they f"*^ answer: 
 
 _ ' •' iiow corn- 
 
 answer jointly, and for the process hi those cases in which, accord- pelled. 
 
 ing to the princij)les above laid down, a sej^arate answer, by either 
 
 the one or the other, ought to be filed, the reader is refen-ed to the 
 
 Chapters on Process.^ 
 
 1 Jackson «. Rawlins, 2 Vern. 195; ih. 2 See »05^ Chap. VIII. § 4: CJiap. X. 
 
 ed. Raithby, n. (2). § 2.
 
 CHAPTER V. 
 
 OF PARTIES TO A SUIT. 
 
 Section I. — Of necessar)/ Parties, in respect of the Concurrence 
 of their Interests vnth that of Plaintiff. 
 
 General rule; 
 
 All persons 
 interested at 
 neccssarj^ 
 parties. 
 
 It is the constant aim of a Court of Equity to do complete jus- 
 tice by deciding upon and settling the rights of all persons inter- 
 ested in the subject of the suit, so as 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.^ For this purpose, aU 
 persons materially interested in the subject, ought generally, either 
 as plaintiffs or defendants, to be made parties to the suit,^ or ought 
 by service upon them of a copy of the bill,^ or notice of the decree * 
 to have an opi^ortunity afforded of making themselves active par- 
 ties in the cause, if they should think fit.^ 
 
 1 Ld. Red. 163; Story Eq. PI. §§ 72, 76; 
 Caldwell V. Taggart, 4 Peters, 190; West 
 V. Kandall, 2 JMason, 100-19G; Joy v. 
 Wirtz, 1 Wash. C. 0. 517; Mandevil'le v. 
 Riggs, 2 Peters, 482; Cutler v. Tattle, 4 C. 
 E. Green, 549, 550 ; Kicliardson v. liiistings, 
 7 Beav. 323,326 ; Hare i'. London and North 
 Western Railway Co., 1 .J. & H. 252. It 
 seems, however, that, under the modern 
 English practice, the Court is less unwill- 
 ing to relax the rule in special cases. 
 Ford V. Tennaut, 29 Beav. 452; 7 Jur. N. 
 S. 615, L. JJ. 
 
 2 Ld. Red. 164. 
 
 3 Ord. X. 11, 14, 15. 
 
 4 15 & IC Vic. c. 86, § 42, r. 8. 
 
 5 Orders, August, 1841, 23d and 26th. 
 Generally, all persons interested in the 
 subject of a suit should be made parties, 
 plaintiff-;, or defendants. Stephenson v. 
 Austin, 3 Met. 474, 480; Williams v. Rus- 
 sell, 19 Pick. 102, 165; West r. Randall, 2 
 Mason, 181; Storj^ t'. Livingston, 13 Pe- 
 ters, 359;, Pipe r. Bateman, 1 Clarke 
 (Iowa), 369; New Braintrecr. Southworth, 
 4 Grav, 304; Crocker z;. Higgins, 7 Conn. 
 342; i'oofman v. Pray, R. M. Charlt. 291; 
 Watkins v. Washington, 2 Bland, 509; 
 Ilox'ie V. Carr, 1 Sumner. 172; Whiting y. 
 Bank of United States, 13 Peters, 6-14; 
 Hopkirk r. Page, 2 Brock. 20; M'Connoll 
 V. M'Connell, 11 Vt. 290; Evans «. Chism, 
 18 Maine, 220; Hussey v. Dole, 24 Maine, 
 
 20; Beals v. Cobb, 51 Maine, 348; Pierce 
 V. Faunce, 47 Maine, 507; Oliver v. Palm- 
 er, 11 Gill & J. 426; Willis v. Henderson, 
 4 Scam. 20; Wells v. Strange. 5 Geo. 22; 
 Turner v. Berry, 3 Oilman, 541; Ilicks v. 
 Campbell, 4 C. E. Green, 183; Pence v. 
 Pence, 2 Beasley (N. J.), 257. The general 
 rule, requiring all persons interested to be 
 made parties to the suit, is coniined to par- 
 ties to the interest involved in the issue, and 
 who must necessarily bo affected by the de- 
 cree. Michigan State Bank v. Gardner, 3 
 Gray, 308, per Thomas J.; Story Eq. PL 
 § 72. It is a rule, which is more or less with- 
 in the discretion of the Court, and may be 
 dispc^nsed with, when it becomes extreme- 
 ly tlifficult or inconvenient. Wendell v. 
 Van Rensselaer, 1 John. Ch. 349; Story 
 Eq. PI. §§ 94, 90; Hallett v. Ilallctt, 2 
 Paige, 15; Cullen v. Duke of Queens- 
 berry, 1 Bro. C. C. ( Perkins's ed ) 101, and 
 Mr. Belt's notes; IMann v. Butler, 2 Barb. 
 Ch. 362; Birdsong v. Birdsong, 2 Head 
 (Tenn.), 289 ; Tobin v. M'alkiiishaw, 1 
 McAU. (Cal.) C. C. 26; United States v. 
 Parrott, 1 McAll. (Cal.) C. C.271; West«. 
 Randall, 2 Mason, 181; lirasher v. Van 
 Cortliindt, 2 John. Ch. 242; Boisgerard v. 
 Wall, 1 Sm. & M. Ch. 404; Whitney v. 
 Mavo, 15 111. 251; Soc. for Prop, of Gospel 
 V. ilartland, 2 Paine C. C. 536. Where 
 the persons interested are so numerous as 
 to make it impossible, or very inconven-
 
 PERSONS HAVING COXCURRENT INTERESTS "WITH PLAINTIFF . 
 
 191 
 
 The strict application of this rule, in many cases, creates diffi- 
 culties ; which have induced the Coiu't to relax it ; and, as we shall 
 see, it has long been the established practice of the Court, to allow 
 a plaintiff to sue on behalf of himself and of all the others of a 
 numerous class of which he is one, and to make one of a numer- 
 ous class (as the members of a joint-stock company), the only 
 defendant, as rejiresenting the others, on the allegation that they 
 are too numerous to be all made parties ; and, in addition, the 
 Court is now enabled, whenever it thinks fit, to adjudicate upon 
 questions arisuig between parties, without making other jiersons 
 who are interested in the property in question, or in other property 
 comprised in the same instrument, parties to the suit.^ When the 
 Court acts on this power,' the absent parties are not bound by the 
 decree ; ^ whereas, in the cases first alluded to, the absent parties 
 are generally bound.^ 
 
 The application of the general rule, above referred to, ^vill be 
 considered Jirst, with reference to those whose rights are con- 
 current witji the rights of the party instituting the suit ; and 
 secondly, with reference to those who arc interested in resisting 
 the plaintiff's claim. 
 
 With respect to the first class, it is to be observed, that (subject 
 to the ])rovisions of the late Act above pointed out) it is required 
 in all cases where a party comes to a Court of Equity to seek for 
 
 Ch. V. § 1. 
 
 ient, to bring them all beTore the Court, a 
 part of them may file ti bill \n behall' of 
 themselves, and all others standing iu 
 the same situation. RoI)inson v. Smith, 3 
 Paige, 222 ; per Foster J. in Williston v. 
 Michigan Southern and Northern IM!. Co., 
 1-3 Alien, 400. Where a decree in relation 
 to the subject-matter of litigation, can be 
 made without in any way concluding the 
 interest of a partii-ular person, tliat person 
 is not an essential [larty. Story y. Living- 
 ston, 1.3 I'cters, 359. 
 
 By 22d of the Equity Rules of the United 
 States Courts, — "If any persons, other 
 than those named as (h.-fendants in the 
 bill, shall ai)[)ear to be ncccssarj- or proper 
 parties thereto, tiie bill shall aver the rea- 
 son, why tliey are not made parties, by 
 showing them to be without the jurisdic- 
 tion of the. Court, or that tliej' eaniiot bo 
 join'-d without ousting the jurisdiction of 
 the (.'oui t as to other f)arties. Ami as to 
 persons who an; without the jurisdiction, 
 and may jiroperiy be made parties, the 
 bill may pray, that process mav issue to 
 make them jtartics to the bill, if tliey should 
 come within the jurisdiction." See Krick- 
 son r. Nesmith, 4'; N. II. 371; Towle v. 
 Pierce, 12 .Met. 32'.t; Story K(|. I'l. § 78; 
 ante, pp. 1.02, \M and notes. 
 
 All persons having the same interest 
 should stand on the same side of the suit; 
 but if any such refuse to appear as plain- 
 
 tiffs, they may be made defendants, their 
 refusal being stated in the bill. Contee 
 V. Dawson, 2 Bland, 2G4; I'ogson v. Owen, 
 3 Desaus. 31 ; Cook r. Iladlev, Cooke, 4C5 ; 
 I\Iorse V. Hovej-', 9 Paige, 197 ; Bartlett v. 
 Parks, 1 Cush. 80; Whitncv v. Mayo, 15 
 III. 251; Smith v. Sackett,6 Gilman,534; 
 Lovell V. Farrington, 50 jMuinc, 239. 
 Parties should not be joined as plaintiffs 
 in a suit without their knowledge or con- 
 sent; if tiiey are, the bill, as to them, 
 should be dismissed. Gravcnstine's Apn. 
 49 Penn. St. 510. 
 
 Parties having conflicting interests in 
 the subject of litigation sliould not be 
 joineil as plaintifl's in the suit. Grant v. 
 Van Sdioonhoven, 9 Paige, 255; Turnhaui 
 V. Turnliam, 3 I'. Mon. 581 ; Bartlett v. 
 Parks, s(//j;y( ; Michigan I'ank?'. Gardner, 3 
 Gray, 308, 309, per Thomas .1.; Crook v. 
 Brown, 11 Md. 158; .lolinson v. Vail, 1 
 McCarter (N. .1.), 423, 425, 420. 
 
 1 15 & 10 Vic. c. 80, § 51. The Court 
 acted on this power in the case of Parncll 
 V. Ilingston, 3 Sm. & G. 337, wliich is 
 believcfl to be the only reported case in 
 wliicli it has done so. See also Swallow 
 r. I'.inns, 9 Hare App. 47; 17 .lur. 295; 
 I.anham r. Pirie, 2. lur. N. S. 1201, V.C.S.; 
 Prentice v. Prentice, 10 Hare, Ap]i. 22; Re 
 Brown, 29 Beav. 401. 
 
 - Doody f. Iliggins, 9 Hare App. 32. 
 
 ^ barker i". Walters, 8 Beav. 92.
 
 192 
 
 OP PARTIES TO A SUIT. 
 
 Cii. V. § 1. 
 
 All haviiiji 
 a riiriit to sue 
 di'ti'iulant for 
 tlio siuno 
 tiling should 
 he parties. 
 
 Where they 
 need not be 
 active par- 
 ties. 
 
 Persons bav- 
 in-- legal 
 estate. 
 
 tli:it relief wliieh the prineijiles there aeted u])<>n entilUi him to 
 receive, tliat lie should bring before the Court all such i)arties as 
 are neeessary to enable it to do com})lcte justice; and that he 
 should so far bind the rights of all persons interested in the subject, 
 as to render the ])ertbnnancc of the decree which he seeks ])erfectly 
 safe to the i)arty called upon to perform it, by preventing his being 
 sued or molested again respecting the same matter either at Law 
 or in Equity. For this purpose, formerly, it was necessary that lie 
 shoidd bring regularly before the Court, either as co-])laintifls Avith 
 himself, or as defendants, all persons, so circumstanced, that unless 
 their rights were bound by the decree of the Court, they might 
 have caused future molestation or inconvenience to the party 
 against Avhom the relief was sought. 
 
 But now, a plaintiff is enabled, in many cases, to avoid the ex- 
 pense of making such persons active ])arties to the cause, by serv- 
 ing them with copies of the bill vinder the general order,^ or with 
 notice of the decree under the recent Act.^ The practice arising 
 under these provisions will be stated hereafter ; for, as it does not 
 affect the principle, requirhig all persons concurrently interested 
 with the plaintiff, to be bound by the decree, but only substitutes, 
 in some cases, an easier mode of accomplishing that end ; it will 
 be convenient, in the first instance, to consider what is the nature 
 of those concurrent rights and interests, which render it necessary 
 that the persons possessing them, should be made either active or 
 passive parties to the suit. 
 
 In general, where a plaintiff has only an equitable right in the 
 thing demanded, the person having the legal right to demand it 
 should be a party to the suit ; ^ for, if he were not, his legal right 
 would not be bound by decree,* and he might, notwithstanding 
 the success of the plaintiff, have it in his power to annoy the de- 
 fendant by instituting proceedings to assert his right in an action 
 of Law, to which the decree in Equity being 7'es inter alios acta 
 would be no answer, and the defendant would be obliged to resort 
 to another proceeding in a Court of Equity, to restrain the jjlain- 
 tiff at Law from proceedings to enforce a demand which has been 
 already satisfied under the decree in Ecpiity. This complication 
 of litigation it is against the principles of Equity to permit, and it 
 therefore requires that in every suit all the persons Avho have legal 
 rights in the subjects in dispute, as well as the persons having the 
 equitable right, should be made j^arties to the proceedings.^ 
 
 1 Ord. X. 11, 14. 
 
 2 15 & 16 Vic. c. 86, § 42, r. 8. 
 
 3 See Johnson v. Rankin, 2 Bibb, 184; 
 -Neilson v. Churcliill, 5 Dana, 341. 
 
 4 Ld. Red. 145. 
 
 5 In a suit under a statute, which pro- 
 vided that any inhabitant of a town might 
 
 maintain a suit in Equitj', by bill or peti- 
 tion, to restrain tlie town from a misappli- 
 cation of money in violation of a statute 
 under which it was received, the plaintiffs 
 averred that tliey were inhabitants of the 
 town, and men of property, lialile to be 
 taxed therein, and that the application of
 
 PERSONS HAVING CONCURRENT INTERESTS WITH PLAINTIFF. 
 
 193 
 
 Upon this ground it is, that in all siuts by persons claiming 
 under a trust, the trustee or other person in whom the legal estate 
 is vested, is required to be a party to the proceeding.^ Thus Avhere 
 an estate had been limited by a marriage settlement to a trustee 
 and his heirs, upon trust during the lives of the plaintifl' and his 
 wife, to apply the prohts to their use, with remainder to the chil- 
 dren of the marriage, with remainder over ; and a bill was brought 
 by the persons interested under that settlement to set aside a 
 former settlement, as obtained by fraud, it was held that the plain- 
 tiff could have no decree because the trustee Avas not a party ; "^ 
 and where it appeared that a mortgage had been made to a trus- 
 tee for the plaintiff, it Avas determined that the trustee was a neces- 
 sary party to a suit to foreclose the equity of redemption.^ 
 
 The rule is the same A\'hether the trust be expressed or only 
 implied, as where the executor of a mortgagee files a bill to fore- 
 close a mortgage of freehold or co])yhold estate, he should make the 
 heir-at-hiAv of the mortgagee a i)arty;* because although according 
 to the principles upon which the Courts of Equity proceed, money 
 secured by mortgage is considered as i)art of the personal estate 
 of the mortgagee, and belongs on his death to his ])ersonal repre- 
 sentative; yet, as the legal estate is in the heir, lie Avould not, 
 unless he Avas before tlie Court Avhen it Avas pronounced, be bound 
 by the decree. There is another reason Avhy it is necessary to 
 bring the heir before the Couit in a bill to foreclose a mortgage, 
 because if the mortgagee should think proper to redeem the estate 
 under the decree, he Avill be a necessary party to the reconveyance.^ 
 And so important is it considered in such a case that the heir 
 should be a party, that Avhere the mortgagee died Avithout any heir 
 that could be discovered, the Court restrained his executor from 
 proceeding at Law to compel payment of the mortgage money, 
 and ordered the money into Court till the heir could be found.® 
 
 The heir, however, is only a necessary party Avhere nothing has 
 been done by the mortgagee to affect the descent of the legal es- 
 
 Whether 
 trust ex- 
 pressed or 
 implied. 
 
 Heir of mort- 
 ffagee. 
 
 Heir of mort- 
 gagee not 
 
 the money contemplated by the town 
 would 1)0 a ilin-tt injury to thcni, it was 
 held, that tiio p'aintitVs hail suc-h an inter- 
 est in the iii'in(,-y and in its a|)|>li(.ali()n, as 
 would entile them to maintain such hill, 
 if liny (j nail licat ion ot interest were iieces- 
 Biiry." iJiit it seems tiiat no such (|Ualilica- 
 tion of interest is re<)iiisite for this ])iirpose. 
 SimniMns v. Hanover, 23 I'uk. IHH. 
 
 1 Malin r. Mulin, 2 Jolin. Cli. 238; Fish 
 V. Howland, 1 l'aig<',20; Cas-iday v. Mc- 
 Daiiiel, 8 H. Mon. &rJ; Carter v. Jones, 
 5 Ired. Ivj. lUO. 
 
 ■i II M(m1. 80. 
 
 3 Woo'l V. Williams, 4 Mad. 185; Hieh 
 ens V. Kt lly, 2 Sin. & fJ. 2iJl; Story Kq. 
 I'l. §§ 201^ 20!i, anil note; see Hoyden v. 
 I'artri.ige, 2 Griiv, lyo. 
 
 * Scott t'. Nicholl, 8 Russ. 470; Storj- 
 
 E(|.1M. §§74a, 200, 201; 4 Kent (lltli ed.), 
 186, and cases cited. 
 
 6 AVood V. AVilliams, 4 Mad. 18C. 
 
 c Schoole t'. Sail, 1 Sch. & L. 177. The 
 result of this case was, that after tiie cause 
 had remained some years in Court, it was 
 thought worth while to get an Act of Par- 
 liament to revest the estate, on an alle- 
 giition that the heir could not be found. 
 See also St..ke f. Uub.son, 111 A'es. 38o; 3 
 V. & H. .'54; Smith r. llichnell, il>. nnUs ; 
 Schehnardine v. llarrop, Mad. 3t). The 
 diniciilt}' <'Xp(!rieiicc(l in the case rcA^rrcd 
 to is now met by the provisions of the Trus- 
 tee Act, 180O,§"Hi, which eiial)lesthe(;i)nrt, 
 in such 11 case, to vest the estate; sec/)f«<; 
 and see lie Boden's Trust, 1 De C, .M. & 
 a. r.7; 9 Hare, 820; H< Lea's Trust. <1 W. 
 U. 482, V. C W. ; but see L'e Hewitt, 27 
 L. J. Ch. 302, L. C. and L. JJ. 
 
 13
 
 194 
 
 OF rAKTIES TO A SUIT. 
 
 Cu.X. § 1. 
 
 or assigned. 
 
 Last assignee 
 only neces- 
 sarv. 
 
 Derivative 
 mortgagees. 
 
 Covenantee, 
 in a suit for 
 specific per- 
 fonnance of 
 covenant. 
 
 tntc ujion him. If tlic descent of tlie legal estate has been diverted, 
 it is necessary to liavc before the Court tlic person in wlioni it is 
 actually vested;^ and therefore, wlierc a mortgagee has devised 
 his mortgage in such nianner as to pass not only the money se- 
 cured, but the legal estate in the property mortgaged, the devisee 
 alone may foreclose without making the heir-at-law of the original 
 mortgagee a party.- 
 
 ITi)on the same ]irincij)le, where a mortgagee in his lifetime act- 
 \ially assigns his whole interest in the mortgage, even though the 
 assignment be made without the privity of the mortgagor, the as- 
 signee alone may foreclose without bringing the oi-iginal mortgagee 
 before the Court ; " and where there have been several mesne as- 
 signments of the mortgage, the last assignee, j^rovided the legal 
 estate is vested in him, will be sufficient without its being neces- 
 sary to bring the intermediate ones before the Court.* It is to be 
 observed, howevei-, that in order to justify the omission of the in- 
 termediate assignees in the case of an assignment of a mortgage, 
 the conveyance must have been absolute, and not by way of mort- 
 gage;^ for if there be several derivative mortgagees, they must 
 all be made parties to a bill of foreclosure by one of them. Thus, 
 where A. made a mortgage for a term of years for securing 350^. 
 and interest to B., who had assigned the term to C, redeemable by 
 himself on paying 300/. and interest ; and B. died, and C. brought 
 a bill against A. to foreclose him without making the representa- 
 tives of B. the original mortgagee parties, it was held by the Court 
 that there was plainly a want of proper parties.® 
 
 The i^rincijjle that requires a trustee or other owner of the legal 
 estate to be bx'ought before the Court in suits relating to txnist 
 pro])erty, applies equally to all cases where the legal right to sue 
 for the thing demanded is outstanding in a different i)arty from the 
 one claimina: the beneficial interest. Thus where a bill is filed for 
 
 1 See Eagle Fire Ins. Co. v. Cammet, 2 
 Edw. Ch. 127. 
 
 2 Williams v. Daj-, 2 Ch. Ca. 32; Ken- 
 voise V. Cooper, 6 Mad. 371. 
 
 3 Chambers v. Goldwin, 9 Ves. 269; 
 Story Ef). I'l. § 189; 13i.shop of Winchester 
 V. Beavor, 3 Sumner's Ves. 314, and note 
 (o), a"d 31.5, 316; AVhitney v. M'Kinnev, 
 7 John Ch. 144. 
 
 4 Cljambers v. Goldwin, 9 Ves. 269. 
 
 6 Storv Eq. PI. § 191; Kittle v. Van 
 Dj-ck, 1 Sand. (N. Y.) 76, cited ;»s<, § 
 2 of this chapter, in note to point, "mort- 
 gagee unnecessary where mortgage is as- 
 signed." 
 
 6 Hobart r. Abbot, 2 P. Wms. 643; Kit- 
 tle V. Van Dyck, 1 Sand. (N. Y.) 7C. The 
 general, although not universal, rule, is 
 that all incumbrancers, as well as the niort- 
 gac'or, should be made parties, being, if 
 not indispensable, at least projier, jjarties 
 to a bill of foreclosure, whether they are 
 prior or subsequent incumbrancers. Story 
 
 Hti. pi. § 193, and cases cited; Findley v. 
 Bank of United States, 11 Wheat. 304; 
 Haines v. Heacli, 3 John. Ch. 409; Ens- 
 worth f. Lambert, 4 John. Ch 60r); Mc- 
 (iown V. Y'orks, 6 .Fohii. Ch. 450; Bishop 
 of Winchester %\ Beavor, 3 Sumner's Ves. 
 314, note («); Taite v. Pallas, 1 Ilogan, 
 261; Bodkin v. Fitzpatrick, 1 ILgan, 308; 
 Canby v. liidgcway, Ilalst. N. J. Dig. 168; 
 Lyon' V. Sandford, 5 Conn. .544 ; Kenwick 
 r." Macomb, 1 Ilopk. 277; Fell v. Brown, 
 
 2 Bro. C. C.( Perkins's ed.) 278, 279, notes; 
 RIaderias v. Cutlett, 7 Monroe, 470; Wing 
 V. Davis, 7 Greenl. 31; Poston v. Eubank, 
 
 3 J. J. i\Larsh. 44; Stuckcrw. Stucker, 3 J. 
 J. Marsh. 301; Cooper i;. Martin, 1 J)ana; 
 25; Noyes v. Sawver, 3 Vt. 160; Judson 
 V. Emanuel, 1 Ala. N. S. 598; Miller v. 
 Keishaw, 1 Bailey Ef]. 479; Bristol v. 
 Mori.'an,3 Edw. Ch". 142; Nodinev. Creen- 
 lield, 7 Paige, 544; 4 Kent (11th ed.), 186; 
 see Piatt c. Squire, 12 Met. 494.
 
 PERSONS HAVING CONCURRENT INTERESTS WITH PLAINTIFF. ' 195 
 
 the specific performance of a covenant under hand and seal of one, Ch. v. § i. 
 
 1 1 Ml *• I i' 
 
 for the benefit of another, the covenantee must be a party to a bill 
 by the person for whose benefit the covenant was intended, against 
 the covenantor.^ And so in (7o/>e v. Parry^- which was a bill filed 
 for the specific performance of a covenant for the surrender of a 
 copyhold estate to A., in trust for others, Lord Chief Baron 
 Richards said, that as the efiect of a surrender, if the Court de- 
 creed it, would be to give the legal estate to A., he ought to be a 
 party, otherwise another suit might become necessary against him. 
 
 It is to be observed, that the preceding cases arose upon cove- Rule not 
 nants formally entered into under hand and seal ; the same rule p^Jjon^Jon. 
 wUl not, however, apply to less formal instruments, such as ordi- tracting not 
 nary agreements not under seal, where one party contracts as agents for 
 agent for the benefit of another. In such cases, it is not necessary others. 
 to bring the agent before the Court, because, even at Law, it is 
 the un'loubted right of the principal to interpose and supersede 
 the right of his agent by claiming to have the contract performed 
 to liimself, although made in the name of his agent.^ This princi- 
 ple was acted upon by the Court of Queen's Bench, in the case of 
 the DuJce of JSForfoIk v. Worthy,^ and in Bethune v. FaTcbrother^ 
 where the plaintiff not wishing to appear as purchaser, procured 
 J. S. to bai-gain for him, who signed the contract (not as agent) 
 and paid the deposit by his own check; yet, inasmuch as it was 
 the plaintiff's money, he was allowed to maintain an action for it 
 without showing any disclaimer by J. S. Upon the same princi- 
 ple, in Equity, if the plaintiff had filed a bill against the vendor, 
 for a specific performance, he would not have been under the ne- 
 cessity of making J. S. a party to the suit, because, if he had suc- 
 ceeded in his object, performance of the contract to the plaintiff 
 might have l>cen shown in answer to an action at Law by J. S., 
 whose title was merely that of agent to the plaintiff. It is, liow- 
 ever, frequently the practice to join the auctioneer as co-plaintift' Auctioneers; 
 with the vendor in suits for specific performance of contracts en- 
 
 1 Cooke V. Cooke, 2 Vem. 36 ; 2 Eq. Ca. acter. See Clarke v. Wilson, 3 Wash. 
 
 Ab. ":{, pi. 8; Story Eq. PI. § 209. C. C. 500; Newcomb v. Chirk. 1 Denio, 
 
 ^ 2 J. & W. 588; and see Uolls f. Yate, 22G; Finncvv. IJedtbnllns. Co., 8 Met. 348, 
 
 Yelv. 177; 1 Bulst. 25, b. Collyer Piirtii. (rcikiiis's ed.) §§ 412, 05:3; 
 
 8 Crocker v. IIiggins,7 Conn. 342. The Dimlap's I'alcy's Agency, 324, note; Ilarp 
 
 party in interest in a contract, resting in v. Osgood, 2 Hill, 210; West IJoylst-ui 
 
 parol, mav sue upon it. La|)h!im y. (Jrecn, Manuf. Co. r. .Se:irU', 15 1'iok. 225; llub- 
 
 » Vt. 407; .Story Agency, § 4is vt .ser/. ; bard v. Borden, Wliarl. 79, 02. This, 
 
 I'itts t\ Mower, IH Miilne, 301; J'Minond r. however, is not univer.-ally true, iis ;ip- 
 
 Caldwell, 15 Mnine, 340; Higdon r. Thoni- pears in the case oC factors making written 
 
 as, 1 Har. & (J. 153; White w. Owf^n, 12 contracts in their own name for the pur- 
 
 Vt. 301; Dunlnp's Paley's Agency, 324, chase or sale of goods for tlieir princip;ds. 
 
 note; Ilognn r. Short, 24 Wend. 401; So in cases of agents procuring iiolicics of 
 
 Thorp V. I''arf|ucr, 15. Mon. 3. insurance in their own names, lor the ben- 
 
 In the case of tlie United States v. Pur- elit of their principals, smd in oilier cases, 
 
 meic, 1 I'liine C. C 2-52, it was held, tliat which will be found eoniinentcd on in 
 
 no action will lie in the name of the piin- Story Agency, § I'M. 
 cipiil, on a written contract made by his * 1 Camj). N. P. c. 3.'!7. 
 
 agent in his own name, although the de- <» Cited 6 .M. & S. 386. 
 
 fendantmay have known the agent's char-
 
 19(i 
 
 OF PARTIES TO A SUIT. 
 
 Cii. V. § 1. 
 
 But njifnoy 
 must 1)0 
 established 
 bv evidouce; 
 
 or appear 
 from eon- 
 tract. 
 
 Otherwise, 
 agent a neces- 
 sary party. 
 
 Persons en- 
 titled under 
 sub-coutract. 
 
 tort'd into at auctions;^ but tliat is, because lie has an interest in 
 tlio contract, and may niaintain an action n])on it. He has also an 
 interest in bi'ing ])rotected ag-ainst the le<2;al liability which he 
 may have incurred in an action by the purchaser to recover the 
 deposit.- 
 
 In order to enable the plaintiff to dispense with the necessity 
 for making- the agent entering into a contract for his employer, in 
 his own name, a i)arty to a suit to enforce such contract, he must 
 state in his bill, and be in a situation to show by evidence, that he was 
 actually an agent in the transaction, as appears to have been done 
 in the case of JBcthune v. Farehrother^ by proving that although 
 the money was paid by the check of the agent, it was in fact the 
 money of the purchaser. The fact of the person contracting being 
 the agent of the plaintiff may likewise appear from the contract 
 itself; but if it does not appear from the contract itself, and the 
 plaintiff is not in a situation to show the agency, by proving that 
 the money Avas his own, or some act tantamount, he must make 
 the agent a party either as co-plaintiff with himself or as a defend- 
 ant, in order to bind his interest ; for otherwise such agent would 
 have a right to sue either in Equity for a specific performance of 
 the same contract, or to bring an action at Law for the recovery of 
 the money paid to the defendant ; and parol evidence on the part 
 of the defendant would in either case be inadmissible to show, in 
 opi:»osition to the written contract, that the j^urchase was made on 
 behalf of another.'* The same rule will apjjly if the agent con- 
 tracted as well on his own behalf as in the capacity of agent for 
 another. In that event the bill must be filed in his own name, 
 and in that of the pei'son on whose behalf he acted, or at least 
 such person must be a party to the suit; and uj)on this principle, 
 in Small v. Atticood,^ where a contract was entered into for the 
 purchase of an estate by certain persons in their own names, but 
 in fact on their own account, and also as agents for other parties, 
 a bill to rescind the contract was filed in the names of both of the 
 agents, and of the other parties for whom they contracted. 
 
 With respect to the effect of a sub-contract in rendering it 
 necessary to bring the party concerned in it before the Court in a 
 litigation between the original contracting parties, the following 
 distinction has been made ; viz., if A. contracts with B. to convey 
 to him an estate, and B. afterwards contracts with C. that he, B., 
 will convey to him the same estate, in that case C. is not a neces- 
 
 1 See Cutts v. Thodey, 13 Sim. 206, 211 ; 
 ^nd see 7 Ves. 289. 
 
 2 But where an auctioneer used fraud 
 to enhance the price of property sold at 
 auction, it was held, that in a suit in 
 P^quity by a purchaser for relief against 
 the sale, it was not necessary to make the 
 auctioneer a party. Veazie v. Williams, 
 
 How. U. S. 134. 
 
 8 Cited 5 M. & S. 385. 
 
 4 Bartlett v. Pickers^ill, 1 Cox, 15; 1 
 Eden, 515; see 2 Sugden V. & P. (7th 
 Am. ed.) 911, and notes; Botsford v. Burr, 
 2 John. Ch. 409; Hughes v. More, 7 
 Cranch, 176. 
 
 fi 1 Young, 407.
 
 PERSONS HAVING CONCURRENT INTERESTS WITH PLAINTIFF. 197 
 
 sary party to a suit between A. and B. for a specific performance ; Ch. v . § i: 
 but if the contract entered into by B. with C. had been, not tliat "* 
 
 he, B., should convey the estate, but that A., the original vendor, 
 should convey it to C., then C. would have been a necessary party 
 to a suit by B. against A. for a specific performance.^ 
 
 Upon the principle above stated, it is presumed that where a man 
 enters into a contract which is expressed in the instrument itself to 
 have been entered into by him as agent for another, he would not 
 afterwards be allowed to sue for a performance of that contract on 
 his own behalf, on the allegation that he was not authorized to act 
 as agent, without bringing the party, on whose behalf it was ex- 
 pressed to be made, before the Court.^ At Law it has been held, 
 that a plaintifl' under such circumstances could maintain an action, 
 by procuring from the party on Avhose behalf he appeared to have 
 entertained the contract, a renunciation of his interest.^ 
 
 It is to be observed here, that although an agent entering into a 
 contract in his own name, may be joined in a suit as co-plaintiff" with 
 his principal, as in the case before referred to of an auctioneer, who 
 is frequently joined with the vendor in a bill against a purchaser, 
 because he has an interest in the contract, or may bring an action 
 upon it, it is merely on the ground of the interest which he has in 
 the contract, and that the rule is indisputable, that wherever an 
 agent has no interest whatever in the property in litigation or in 
 the contract, and cannot be sued either at Law or in Equity re- 
 specting it, in such case he ought not to be made a party ; and 
 that if he is made a co-plaintiff in the suit, a demurrer upon that 
 ground will be allowed;* though now, in such a case, the Court 
 may grant such relief as the special circumstances of the case 
 require.*^ 
 
 Ul)on this principle it has also been determined, that an agent 
 who bids at an auction for an estate, and signs the memorandum 
 in his own name, need not be made a co-defendant witli his em- 
 ployer in a bill for a specific performance of such agreement." 
 
 Where the subject-matter in litigation is. a legal chose in action Assignor of a 
 which has l)een the subject of assignment, the assignor, or, if dead, acii(m,oTh\n 
 his personal rc))rcsentative, should be a party;'' for as an assign- representa- 
 
 1 V. Walford, 4 IJiiss. .372; nn'l Nel- C. 332, cited Ld. Red. IGO; see Avers v. 
 
 thorpe V. Ilolpitc. 1 (Joll. 203. nnd the casfis Wright, H Ired. Eq. 229. 
 
 there cited; .McCreif^iil r. Foster, W. X. "^ (Jorbiii r. Knierson, 10 Leiph, 663; 
 
 (1870) 157; 18 W. U. '.lO.'), L. C. IW'li ''• Sliroclt, 2 M. Mon. 2!i; Combs v. 
 
 2 See Add. Cont. 600, 624. 'J'Mrltoii, i/>. V.H-, Allen v. Cn.clu't, 4 Hibb, 
 8 Biekerton v. Kurrell, 5 M. & S. 383. 240; iSromlcy v. Ilnjiaiid, 7 Sumner's Yes. 
 * King of S|)ain /'. .M.iejiado, 4 liussell, 3, note (c. ); Voorliec'* v. Do Mycr, 3 Siuidf. 
 
 228; vifk etinm, CiiiY V. l'\nU>\\,ih.2i2,au(\ Cli. r,14; The Auditor?'. .lohiison, 1 Hen. 
 
 Makepeace r. iliivtliorne, iVy. 244 ; Jones r. & M. 536; Bradlev v. Morgan, 2 .\. K. 
 
 Hart, 1 Hen. & .Vl. 470. Marsh. 30'.); Klderkin v. Sliultz, 2 HIackf. 
 
 6 15 & 16 Vic. c. HO, § 4!). 345; (Jurripr v. Flowanl, 14 (mmv, 511. 513; 
 
 Kmgslevr.Youn),', IJolli..Fuly30, 1807, Kosign f. Kellogg, 4 Pick. 1. In Tieco- 
 
 Coo. Eq. ]'\. 42; see also Lispett r. llcnve, tliick v. Austin, 4 .Mason, 16, 41 vt seq., it 
 
 2 Atk. 394 ; Newman v. Godfrey, 2 Bro. C. was strenuously maintained by Mr. Justice
 
 li>8 
 
 OF PARTIES TO A SUIT. 
 
 Cn. V. § I. inoiit of a chose in action is not rocognized in :i Court of L;nv, and 
 is only considered good in Equity, the recovery in Equity by the 
 
 Story, that the nspi^nor in a chose in action 
 is not, in Eiiuitv* a necessary jmrty, wliere 
 the suit is by the assifj:iu'e anil the ns-ign- 
 nient is absohite. ]\liller r. IIcikUtsou, 
 2 Stoclit. Vh. (N. .1.) ;V20; see AVard r. 
 Van Boliiielin, "2 Paisie, 2S0; 15r\ien r. 
 Crane, 1 Green Cii. 1547; I'olk v. Gallant, 
 2 Dev. & Hat. Cli. 305; Everett r. Winn, 
 
 1 Sm. & M. C'li. 67; Snellinf,' v. IJoyii, 
 
 2 Monroe. 132; Kennedy r. Davis, 7 Mon- 
 roe. 372: Morey v. Eor^vtii, 'Wallv. Ch. 465; 
 Beaeh r White, Walli" Ch. 4Str); Dixon v. 
 Buell, 21 111. 203; Colerick v. Hooper, 3 
 Ind. 31G; Yarnev ?•. Hartlett, 5 Wis. 270; 
 Moor r. Venzie, 32 Maine, 343,305; "\Vliit-- 
 ney v. M'Kinney, 7 John. Ch. 144; Brown 
 V. Johnson, 53 Maine, 246, 247; Pingree 
 V. Colfin, 12 Gray, 302, 303. In Ilobart 
 1". Andrews, 21 I'ick. 526, 531, 532, l\Ir. 
 Jnstiei' Wilde seems inclined to favor the 
 same doctrine. And it was so held in 
 Haskell v. Hilton, 30 INIaine, 419; see 
 Anderson v. Wells, 6 B. Mon. 540; Clark 
 V. Smith, 7 B. Mon. 273; Day v. Cuni- 
 mings, 19 Vt. 496. In Story Eq. PI. § 153, 
 the law on this subject is thus stated : " In 
 general, the person, having the legal title 
 in the subject-matter of the bill, must be a 
 party, either as plaintift' or as defendant, 
 though he has no beneficial interest there- 
 in : so that the legal right may be bound 
 by the decree of the Court. In cases, 
 therefore, where an assignment does not 
 pass the legal title, but only the equitable 
 title, to the property, as, for example, an 
 assignment of a chose in action, it is usual, 
 if it be not always indispensable, to make 
 the assignor, holding the legal title, a p;irty 
 to the suit. Indeed, the rule is often laid 
 d<iwn far more broadl}-, and in terms im- 
 porting, that the assignor, as the legal 
 owner, must in all cases be made a piirty, 
 where the equitable interest only is passed. 
 Thus it has been laid down in a book of 
 verj' high authority, that if a bond or judg- 
 ment be assigned, the assignor, as well as 
 assignee, must be a party ; for the legal 
 right remains in the assignor. But it may 
 perhaps he doubted, whether the doctrine 
 thus stated is universally true. The true 
 principle would seem to be, that in all 
 cases, where the assignment is absolute 
 and unconditional, leaving no equitable 
 interest whatever in the assignor, and the 
 extent and validity of the assignment is 
 not doubted or denied, and there is no re- 
 maining liability in the assignor to be 
 affected by the decree, it is not necessary 
 to make the latter a party. At most, he is 
 merely a nominal or formal i)arty in such 
 a case. It is a very different question, 
 whether he maj- not {)roperly be made a 
 pitrty, as a legal owner, although no 
 decree is sought against him; for in man}' 
 cases a person ma}' be made a party, 
 though he is not indi-^pensable. But 
 where the assignment is not ab-olute and 
 unconditional, or the extent or validity of 
 the assignment is disputed or denied, or 
 there are remaining rights or liabilities of 
 
 the assignor, which may be affected by the 
 decree, there he is not only a prii])er, hut 
 a necessary, party." Montague v. Lobdell, 
 II Cush. 114, 115; Helton r. Williams, 4 
 Florida, 11; see Miller r. Hear, 3 I'aige, 
 466; Craig v. Johnson, 3 J. J. Marsh. 573; 
 2 Story Eq. Jur. § 1057; lirown v. .lohn- 
 son, 53 Maine, 240; Houghton ik Davis, 
 23 Maine, 33. The promisee named in a 
 written contract to convey land, who has 
 tninsferred it by an unconditional verbal 
 assignment, need not be made a party to 
 a suit by his assignee for specific perform- 
 ance of the contract Currier v. Howard, 
 14 Gray, 511. In Field v. Maghee,5 I'nige, 
 539, it was held, that the assignee of a chose 
 in action, whieli has been absolutely as- 
 signed, is not authorized to file a bill for 
 the recovery of the same, in the name of 
 the assignor; see also Hogers v. Traders' 
 Ins. Co., 6 Paige, 583; Miller v. Bear, 3 
 Paige, 467,468; Whitney «. M'Kinney, 7 
 John. Ch. 144; Sedgwick v. (,'leveland, 
 7 Paige, 287; Polk v. Gallant, 2 Dev. & 
 Bat. Eq. 395; Snellingr. Boyd, 5 Monroe, 
 172. But if the assignee be a mere nomi- 
 nal holder, without interest in the thing as- 
 signed, then the suit should be brouglit in 
 the name of the party in interest. Field v. 
 Maghee, 5 Paige, 589; Rogers v- Traders' 
 Ins. Co., 6 Paige, 583. 
 
 It has been recently held in England, 
 in the case of Hammond v. Messenger, 9 
 Sim. 327, that the assignee of a debt, 
 not in itself negotiable, is not entitled to sue 
 the debtor for it in I'lquity, urdess some cir- 
 cumstances intervene, which show that his 
 rcmeily at Law is, or may be, obstructed by 
 the assignor. The same doctrine has also 
 been distinctly held in New York and 
 other States. Carter v. United Ins. Co., 
 1 John. Ch. 463; Ontario Bank v. Mum- 
 ford, 2 Barb. ( "h. 596 : Adair v. AVinchester, 
 7 Gill & J. 114; Smiley v. Bell, Martin & 
 Yerg. 378; Mo.seley v. Brush, 4 Rand. 392; 
 see also Hose v. Clark, 1 Y. & ( 'ol. ('h. 534, 
 548 ; Motteux r. The London Assurance Co. 
 
 1 Atk. 545; Dhegetoft v. The London As- 
 surance Co., Moselev, 83; 2 Story Eq. Jur. 
 § 1057 a, and note'; Story liq. PI. § 153, 
 and note. It is remarked by Mr. Justice 
 Story, that " this doctrine is apparently 
 new; and never has been adojited in 
 America. The general principle here es- 
 tablished seems to be, that wherever an 
 assignee has an equitable right or interest 
 in a debt, or other property (as the assignee 
 of a debt certainly has), there, a Court of 
 Equity is the proper forum to enforce it, 
 and he is not to be driven to any circuity 
 by instituting a suit at Law in the name of 
 the person, who is possessed of the right." 
 
 2 Story F"q. Jur. § 1057 a.; Townsend v. 
 Carpenter, 11 Ohio, 21. 
 
 It may Avell be worthy of considera- 
 tion whether the doctrine in the case of 
 Hammond v. Messenger, vbi stijn-ii, is not 
 founded in better reason than that which 
 is above stated as the American doctrine, 
 if, by the American doctrine, we are to
 
 PERSONS HAVING CONCURRENT INTERESTS WITH PLAINTIFF. 
 
 199 
 
 assignee would be no answer to an action at Law by the assignor, 
 in whom the legal right to sue still remains, and who might exer- 
 cise it to the prejudice of the party liable ; ^ in which case the party 
 liable would be driven to the circuitous process of filing another bill 
 against the plaintift' at Law, for the purpose of restraining his pro- 
 ceedings. 
 
 Upon this ground, where an obligee had assigned over a bond, 
 and died, and the assignee sued for it in Equity, the cause was 
 directed to stand over, to make the personal representative of the 
 obligee a i)arty ; ^ and in another case,'' where the assignor of a 
 bond was dead, and there was not a representative, it was held, on 
 a bill filed by the assignee against the obligor for a ne exeat, that 
 there was a want of parties. And in like manner, where a bill was 
 filed by the assignees of a judgment, without the assignor being a 
 party, it was held, that the plaintiffs could not go on with that part 
 of their case which sought payment of the debt.* 
 
 For the same reason, where a bill was filed against the directors 
 of an unincorporated joint-stock company, by a holder of shares, 
 of which some were original, and some were alleged to be deriva- 
 tive, without stating with respect to the derivation of them, the 
 manner in which he had become possessed of them, or whether 
 they had been transferred to him, in the manner in which, accord- 
 ing to the regulations of the comi)any, such transfer ought to have 
 been made, Lord Brougham ai)pearod to think that the jiersons by 
 whoni the shares had been assigned to the plaintiffs ought to have 
 been parties to the suit.^ 
 
 Tlie same ])rincii)le appears to have been acted upon by the 
 Court of Exchequer, in certain cases in which bills have been filed 
 for tithes, by lessees, under parol demises (whicli, in consequence 
 of tithes being things lying in grant, are void at Law), in which 
 
 Ch. v. § 1. 
 
 Obligee in ii 
 bond, 
 
 or his repre- 
 sentative. 
 
 Assignor of a 
 judgment. 
 
 Assignor of 
 shares in an 
 unincorporat- 
 ed joint-stock 
 company. 
 
 Lessor of 
 tithes by 
 parol. 
 
 understand, that the mere assignment of 
 a debt will give tlie assignee a right to sue 
 in Kquity, when tlie assignor could only 
 pursue Ills remedy at Law. See Carter v. 
 United Ins. Co., 1 .John. Ch. 40.3; Onta- 
 rio Bank v. Mumford, 2 H.arb. Ch. 500; 
 Gover v. Christie, 2 Ilarr. & .J. 07; 
 Adair v. Winchester, 7 Gill & J. 114; 
 Srnilev v. Hell, Martin & Yerg. 378; 
 Moscley r. Brush, 4 Kaiid. .'502; Winn v. 
 Howies, Muiif. 23. The doctrine of the 
 case of llaminoiid v. .Messenticr is simply, 
 that a dibt, not (»therwise properh' a sub- 
 ject of l'>|iii!y cognizance, does not l)ecome 
 such, merely becaiiHc it has been assigned 
 and (lie a^^ignce is compelled to sue at I/iw 
 in the name of the assignor. This subject 
 underwent h tliorough discussion in On- 
 tario Hunk V. Miunforil, above cited, in 
 which Chancellor Wulworth cited with 
 approbation tiie i-ase of ilammoiid r. Mes- 
 senger, and reutVinneil the doctrine it con- 
 tains t" its full extiTit. '' As a general rule," 
 f>aid he, " this < 'niirt will not iMitertaiii a suit 
 brought by the assignee of a debt, or of a 
 
 chose in action, which is a mere legal de- 
 mand; but will leave him to his remedy at 
 Law b}' a suit in the name of the assignor." 
 
 1 See the remarks of Thomas .J. in Mon- 
 tague V. Lobdell, 11 (hisli. Ill, 114, 11.5; 
 and also the remarks of Wilde .1. in Ho- 
 bart V. .\iidrews, 21 Pick. .'■)26, oHl, .')32, 
 upon the above statement by Mr. Dimiell. 
 Brown r. .Johnson, 53 Maine, 240. 
 
 - IJrace r. Harrington. 2 Afk. 235; Coale 
 ?'. MiMicd, 3 llarr. & J. 27K; see Ensign v. 
 Kellogg, 4 I'ick. 1. 
 
 a Uay v. I'etiwick, 3 Uro. C. C. 25. 
 
 < ('athcart v. Lewis, 1 Ves. J. 463; 
 Partiiigton v. IJailey, 6 L. ^. N. S. Ch. 
 170, ^L K. ; M'Kinnie i'. Uutlierfonl, 1 
 Dev. iS: I'.at. K(|. 305; i'.lliotl V- Wiirinii, 
 5 Momue, 330; I'emberton !». Uiiidle, ih. 
 401; Young r. Uodes, ih. 500; Eldcrkin 
 V. Shultz, 2 Ulackf. 340. 
 
 6 Walburn v- Ingilby, 1 M. & K. 01; 
 C. P. Coop. T. Brough, 270; see, how- 
 ever. Ibigshaw V. Kiistern Union Hailway 
 Co., 7 Hare, 114; 13 .Jur. 002; allirmod, 
 14 .Jur. 401, L. C.
 
 200 
 
 OF TAKTIES TO A SUIT. 
 
 Cii. V. 5 1. 
 
 A?siirnor of 
 ii chosi' in 
 action, jioiio 
 ally inixlo 
 co-plaintirt". 
 
 Personal rep- 
 resentative. 
 
 Where no 
 representa- 
 tion in 
 England. 
 
 cast's, upon (IcMuurrors beiiiLi' imt in and sulimittod to, tlio Court 
 lias iKTinitted tlu' plaintitl's to ;uiitMi(l their hills, by making the 
 lessors ])artios to the sui-t.^ 
 
 Althoujih the assignor of a chose in action is sotnotime.s made 
 a jiarty dotendant to a suit, yet the more general jiractiee is (espe- 
 cially where the assignment contains, as it almost always does, a 
 power of attorney from the assignor to the assignee to sue in his 
 name), to make the assignor a co-])laintiff in the bill ; although it 
 seems, that even if the assignment is stated upon tlie bill, and, con- 
 sequently, that there is an admission of the fact as between the co- 
 plaintift's, still it is necessary to prove the assignment, in order to 
 show that there is no misjoinder of pkaintiffs;^ though now, it is 
 conceived that such proof would certainly not be required.^ 
 
 U])on tlie principle above laid down, it is held that although a 
 creditor or legatee of a person deceased may, in some cases, under 
 peculiar circumstances, such as an allegation of fraud or collusion,* 
 bring a bill against a debtor to,^ or creditor of,® the estate, yet 
 such a suit can in no case be maintained without the personal 
 representative being a party.'' But it seems that a specific legatee, 
 suing trustees for his legacy, need not make the executor a party* 
 if he alleges that he has his assent.^ Again, although an executor 
 has actually released his interest in the property sued for, it has 
 been held that he must, nevertheless, be a party to the suit.^ And 
 so it has been held, that an administratrix of an intestate, although 
 she had assigned his interest in a partnership concern to his next 
 of kin, was the proper person to file a bill against the surviving 
 pKirtners to have the partnership accounts taken.^° 
 
 Where a testator, having been resident in India, where all his 
 jn-operty was, died there, having made a will, whereby he be- 
 queathed the residue of his estate to persons resident in this country, 
 
 1 Henningi). Willis, 3 Wood, 29; Jack- 
 son V. Benson, ISI'Lel. 62. 
 
 2 Saver v. Wiigstaff, 2 Y. & C. 2.30; 
 Cholnioiideley v. Clinton, 4 Hligli, 123; 
 Rvan V. Anderson, 3 ^lad. 174; Blair v. 
 Biomlev, 5 Hiire, 554; 11 Jur. 116; 
 affirmed, 2 Phil. 354; 11 Jiu". 617. In 
 every case of a liill in Equity, asking 
 relief for a plaintiff, as assignee of the 
 rights of another, the assignor must 1)C 
 made a party, and the assignment ought 
 to be shown and proved, though not 
 denied, nor proof oi' it called lor in the 
 answers. Corbin v. Emerson, 10 Leigh, 
 663; Smitli v. Hnrley, 8 Missou. 559, 
 560; see nnfe, 198 note. 
 
 8 15 & 16 Vic. c. 86, § 49. 
 
 * Gregory v. Eorrester, 1 M'Cord Ch. 
 S26; post, ch. 6, §4, and cases cited in 
 notes to this point. 
 
 8 Attornev-General f. Wvnne, Mos. 126; 
 Wil.«on V. Sloore, 1 :My. 5; K. 126, 142; 
 see also Saunders v. Druce, 3 Drew. 140; 
 and this has been done incases of partner- 
 ship. Bowsher v. Watkins, 1 11. & M. 277 , 
 
 Travis v. Milne, 9 Hare, 141; and see 
 Stainton v. Carron Companj', 18 Beav. 
 146; 18 .Jur. 137; Harrison v. Kighter, 3 
 Stockt. (N. J.) 389. 
 
 c Earl Viiiie v. Ridden, 18 W. R. 308, 
 V. C. M.; see. however, S. C. W. N. 
 (1870) 210; 18 W. R. 1092, L. C. & L. J. 
 James. 
 
 " Kumnev v. Maud, Rep. temp. Finch, 
 330; Griliitii v. Bateman, ib. 334; Attor- 
 ney-General V. Twisden, ib. 336; Conway 
 V. Stroud, 2 Freem. 188; West?;. Raiidull, 
 2 Mason, 181. If, however, the executor 
 is an outlaw and cannot be found, the suit 
 niiiy proceed without him. Heath v. Per- 
 civid, 1 P. Wms. 682, 684; 2 Eq. Ca. Abr. 
 107, pi. 14; 630, pi. 2. 
 
 s Smith V. Brooksbank, 7 Sim. 18. 21; 
 see, however, Moore v. Bhigrave, 1 Ch. 
 (Ja. 277, and observations on this case in 
 Smith V. Brooksbank. 
 
 « Smithbv v. Stiuton, 1 Ver. 31. 
 
 10 Clegg V. Fish wick, 1 M'N. & G. 294, 
 299; 12 Jur. 993.
 
 PERSONS HAVING CONCURRENT INTERESTS WITH PLAINTIFF. 
 
 201 
 
 but appointed persons in India his executors, who proved the will 
 there, and remitted the proceeds to their agent in this country, it 
 was held, that the residuary legatees could not maintain a suit 
 ao-ainst the agent, without having a representative to the testator 
 in England, before the Court.^ 
 
 Where a claim on property in dispute would vest in a personal 
 representative of a deceased person, and there is no general per- 
 sonal representative of that person, an administration limited to 
 the subject of the suit will be necessary, to enable the Court to 
 proceed to a, decision on the claim; but now the Court is em- 
 powered, by the forty-fourth section of the Act 15 & 16 Vic. c. 86, 
 if it thinks fit, to appoint a person in such cases to represent the 
 estate, or to proceed in the absence of any such representative. 
 
 Where, however, the object of the suit is the general adminis- 
 tration of the estate, a general personal representative is always 
 necessary ; ^ and the Court will not proceed in such a suit when 
 the estate is only represented by an administrator ad litem ; ^ nor 
 appoint a person to represent the estate under the section above 
 referred to,^ and a general personal representative is a necessary 
 party to a suit against an executor or administrator de son tort? 
 
 When the object of the suit is only to bind the estate, it is suffi- 
 ciently represented by an administrator ad litem ; ^ and, as a general 
 proposition, it has been laid down that an administrator ad litem 
 represents the estate to the extent of the authority which the 
 letters of administration pur])ort to confer ; ' and when a limited 
 administration has been granted, and general letters of administra- 
 tion are afterwards granted, the general administrator is bound by 
 the proceedings in a cause in which the estate was represented by 
 a limited administrator.^ 
 
 1 Logan V. Fairlie, 2 S. & S. 284; see 
 Campbt'll V- Wallaie, 10 Grav, 162; Camp- 
 b.,11 I-. ShHldon, 13 Pick. 8; Story Conf. 
 Lhws, § 513, nnd numerous cases cited in 
 notes, § 514 b. ; Ston- K(|. Fl. § 179. Exec- 
 utors residing abroad, or who have never 
 acte.l on the estate, are not necessarily 
 made parlies to tlie suit. Clifton r. Haig, 
 4 Desiius. 330; Storv Kq. I'l. § 179. 
 
 "- I'enny v. WatN, 2 I'liil. 149, 153; 
 Donald i". Hather, 1<; Heav. 2t); Barber r. 
 Walker, W. N. (1867) 127; 15 W. R. 728, 
 L.M. 
 
 ■■» (Jroft V. Waterton, 13 Sim. 053; but 
 see 2 Phil. 552; Groves v. Levi, or (Jroves 
 1'. Lane, 9 Hare App. 47; 10 .lur. 1001; 
 and HPC Woo'lhouse v. Woodliouse, L. K. 
 8 Iv). 514, V. C. S. If necesnary for the 
 protection of the estate, a bill i)r!iving an 
 mjunction and receiver, may be filed, al- 
 though there i.s no personal repre«entiitive. 
 Steer r. St-er, 13 \V. K. 225, V. 0. K.; 
 2 Dr. & Sm. .'ill; but a bill fded before 
 ndniinislratinn to protect the assets is de- 
 murrablf, if if asks an account. IJawlings 
 V. Lambirt, 1 .J. & II. 458; Ovcrington i>. 
 Ward, 34 IJeav. 176. 
 
 Ch. V. § 1. 
 
 Where limit- 
 ed adminis- 
 tration suffi- 
 cient ; 
 
 statutory 
 representa- 
 tive may be 
 appointed, or 
 the Court 
 may proceed 
 in the absence 
 of a represent- 
 ative. 
 
 Where the 
 suit is for 
 the adminis- 
 tration of the 
 estate, a gen- 
 eral personal 
 representa- 
 tive is neces- 
 sary. 
 
 Administra- 
 tor ad litem ; 
 represents es- 
 tate to 
 extent of 
 authority 
 which letters 
 of administra- 
 tion purport 
 to confer. 
 
 4 Groves V. Levi, «!//>)•«,- Silver v. Stein, 
 1 Drew. 295; 9 Hare App. 82; see, how- 
 ever, Maclean v. Dawson, 27 Beav. 21, 
 369; 5 Jur. N. S. 1091; Williams v. Page, 
 27 Heav. 373. 
 
 5 Penny v. Watts, 2 Phil. 149, 153; 
 Creasor v. Robinson, 14 Reav. 589; 15 
 Jur. 1049; Beardmore v. (Jregory, 2 H. & 
 .M. 491; 11 .Jur. X. S. 363; contra, Cle- 
 land f. Ch^land, Prec. Ch. 04; and see 
 Cooke V. (iittings, 21 Beav. 497. 
 
 c El lice I'. Goodson, 2 (.'oil. 4; Davis v. 
 Chanter, 2 Phil. 545, 549; Devavnes v. 
 liobinsnn, 24 Beav. 97, 9H; 3 Jur. N. S. 
 707, 708; Maclean v. Dawson, 27 Beav. 
 ^1, 309; 5 Jur. N. S. 1091; Williams v. 
 Allen, 10 W. K. 512, L. JJ., 4 De G. V. & 
 J. 71; overruling S. C. 29 Beav. 292; 8 
 Jur. N S. 270. 
 
 7 Faulkner r. Daniel, 3 Hare, 199, 207; 
 Davis V. (ylianter, supra ; Williams v. Al- 
 len, 32 Beav. 050; Woodliouse v. Wood- 
 house, L. R. 8 Kq. 514, V. C. S. 
 
 8 Davis I'. Chanter, suprn ; and Harris 
 V. Milburn, 2 Hagg 04, referred to, 2 Phil. 
 552.
 
 202 
 
 OF PARTIES TO A SUIT. 
 
 ^•\^. V. § 1. 
 
 Attonioy- 
 Gonoral docs 
 not ropivsiMit 
 estate ol" an 
 illoijitiinato 
 porson, Imt 
 porsonal rep- 
 ri'sontative is 
 necessary. 
 
 Application of 
 15 &: 10 Vic. 
 c. 86, § 44. 
 
 Discretion of 
 the Court ; 
 
 Section in- 
 tended gen- 
 eralh' to 
 apply ouly 
 in cases of 
 one of a class. 
 
 Cases in 
 which the 
 section will 
 be acted on. 
 
 It may not he out ot" jilaro lu'iv to observe Ihal the Attorney- 
 Cn'iieral th>es not represent the estate of a deceased illegitimate 
 ])orson, so as to dispensi' with the iieeessity of a i)crsonal repre- 
 sentative.^ 
 
 With regard to the ])ower of the Courts to ajipoint a person to 
 represent the estate of a deceased person, Lord Hatherly, then 
 Vice Chancelloi-, observed, in the case oi Long v. Storie, that "the 
 forty-fourtli section of the Statute is only intended to apply to a 
 case in which there is a dilHeulty, either from insolvency or some 
 other cause, in obtaining representation to a deceased party;" ^ 
 and the same learned Judge said, in another case, that it is always 
 in the discretion of the Court whether it will act on the ])Ower 
 conferred by this section;'^ and in the case of Gibson v. Wells,'^ Sir 
 John Romilly M. R. 'said, " The objecit of the Statute is : where 
 you have real litigating parties before the Court, but it hai)pens 
 that one of the class interested is not represented, then, if the 
 Court sees that there are other persons present who bona Jide 
 represent the interest of those absent, it may allow that intei-est to 
 be represented, but it wall not allow the Avhole adverse interest 
 to be represented." The observations of the learned Judges above 
 quoted show generally the cases in Avhich the Court will exercise 
 the power conferred ujion it by the forty-fourth section of the Act; 
 and it will be useful now to refer, shortly, to some of the reported 
 cases in which the Court has acted on this powei', or has refused 
 to do so. It has been determined that the enactment extends to 
 those cases where the estate to be represented is sought to be made 
 liable;^ and jiending proceedings in the Probate Court, a re])re- 
 sentative has been appointed ; '^ and, again, where the next of kin 
 refused, or after notice neglected, to take out administration ;'' and 
 where the executor, who had proved the will in India, refused to 
 prove it in England ; ^ and where it was uncertain whether the 
 person whose estate Avas to be rej^resented, and who was a neces- 
 sary party to the suit, and beneficially interested, was dead or 
 alive,^ Where there are other jiersons parties to the suit in the 
 same interest as the deceased jiarty, it is conceived that the Court 
 will, generally, permit the suit to proceed without any representa- 
 
 1 Bell f. Alexander, 6 Hare, 543, 545. 
 
 2 Kaj' App. 12; and see Joint Stock 
 Discount Co. v. Brown, L. K. 8 Eq. 376, 
 V. C. J. 
 
 3 Tarratt v. Lloyd, 2 Jur. N. S. 371, V. 
 C. W. 
 
 ■* 21 Beav. 020; and see Hewitson v. 
 Tod^unter, 22 L. J. C. H. 76, V. C S.; 
 Meades v. Guedalla, 10 VV. K 4S5, V. C. 
 "W. ; 72e Joint .Stock Discount Company, 
 Fyfe'a case, 17 W. 1!. 870, M. It. 
 
 s Dean sind Chaj)ter of Ely v. Caylord, 
 16 Beav. 561; Joint Stock Discount Co. v. 
 Brown, L. K. 8 Iv]. 376, V. C. J.; and see 
 Re Banking L. K. Eq. 601, V. C. G. 
 
 <> Ilele V. Lord Bexlev, 15 Beav. 340; 
 Kobertson v. Keinble, VV. N. (1867) 305, 
 M. R. 
 
 7 'farratt v. Llovd, supra; Ashmall v. 
 Wood, 1 Jur. N. S.'llSO, V. C. S. ; Davies 
 V. Boulcott, 1 Dr & Sm. 23; see also 
 Swallow V. Binns, 9 ILire App. 47; 17 
 Jur. 295; Haw v. Vickers, 1 W. K. 242. 
 
 8 Sutherland v. De Vireniie, 2 Jur. N. 
 S. 301, V. C. S. ; see also Bliss v. Putnam, 
 29 Beav. 20; 7 Jur. N. S. 12; Mortimers. 
 Mortimer, 11 W. It. 740, M. U. 
 
 '■> Mortimer v. Mortimer, 11 W. R. 740, 
 M. R.
 
 PERSONS HAVING CONCURRENT INTERESTS WITH PLAINTIFF. 203 
 
 tive of the estate of such party ; ^ so, also, when the deceased Cu. Y ^i^^ 
 person was an accounting party, or without any beneficial interest, 
 and died insolvent.^ 
 
 Before the late Act, in some cases, when it has appeared at the Rule before 
 hearing of a cause that the personal representative of a deceased 
 person, not a party to the suit, ought to be privy to the proceed- 
 ings under a decree, but that no question could arise as to the 
 rights of such rei)resentative, the Court has, on the hearing, made a 
 decree, directing proceedings before one of the Masters of the Court, 
 without requu-ing the representative to be made a party by amend- 
 ment 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.^ 
 
 Having now noticed the principal cases in which the Court has Cases in 
 acted on the power given, by the Statute, those in which it has re- ^^^Jj^^ ^^jn 
 fused to do so wiU be shortly referred to. It has been held, that not be acted 
 the enactment does not enable the Court to appoint a person to 
 represent the estate, or to proceed without one, wliere he would 
 have to be active in the execution of the decree which the Court 
 is called upon to make ; * nor where the whole adverse interest is 
 unrepresented ; ^ nor where the general administration of the estate 
 to be rc{)resented is sought;*' nor where the deceased was an 
 accounting party ; " nor where there is personal responsibility at- 
 tached to the position ; ^ nor will the Court direct money to be 
 paid to a person appointed under this section.^ 
 
 The ■44tli section of the Act expressly refers to other proceed- The section 
 ings, as well as suits ; and it has accordingly been held that it ^J'^FJai eLes 
 applies to si)ecial cases and petitions.^^ The proper person to be and petitions 
 
 1 Abrey v- Newman, 10 Hare App. 58; ^ Fowler v. Bayldon, 9 Hare App. 78. 
 17 Jiir. 153; Cox v. Taylor, 22 L. J. Ch. 5 Cox v. Stephens, 9 Jur. N. S. 1144, 
 910, V. C. K.; Rucker v. Scholelield, 7 L. 1145; 11 W. U. 929, V. C. K.; Gibson v. 
 T N. S. 504, V. C. W. ; Twvnham v. Wills, 21 Beiiv. 620; and see Vacy v. 
 pi.rter, W. N. (18C9) 228, V. (''. .1.; and Viicy, 1 L. T., N. S. 207, V. C W. 
 
 BPe Uessant v. Noble, 20 L. T. Ch. 2.'50. L. « Groves v. Levi or Lane, 9 Hare App. 
 
 C. Ill Tarratt r. Llovd, si/pni, however, 27; 10 .Jur. 1011; Silver ir. Stein, 1 Drew, 
 
 tiie Court iiiipointed a representative. 295; 9 Hare App. S2; Jinnes r. Ashton, 
 
 2 Chair.Ts V. lleadlam, 9 Hare App. 46; 2 Jur. N. S. 224, V. C. W . ; IJruiton r. 
 Ma'Miav V. Davidson, 9 Hare Apj). >^2; Birch, 22 L. J. Ch. 911, A . C. K.; Wil- 
 l{:ind i". liandle, 2 W. li. .'3:il, V. C W.; Hams v. Page, 27 Beav. 373; Maclean v. 
 Hogers clones, 1 Sni. & C. 17; 10 .Jur. Dawson, 27 Beav. 21, 309; 5 Jur. N. S. 
 96b; LevcRHter r. Norri-. 10 Jur. N. S. 1091. 
 
 1173 V'. C. K.- 13 \V. IJ. 201, V. C. K., " Itowland v. Evans, 33 Beav. 202. 
 
 but see Cox i'. 'Stephens. 9 .(ur. N. S. » He -loint Stock Discount Company, 
 
 1144, 1145: 11 W. U. 929. V. C. K.; see Fyfe's esiso, 17 W. It. 870, M. R. 
 
 also. Ashmali v. WooJ, supra, where in a '■• Byam v. Sutton, 19 Beav. 046; Raw- 
 
 similiir case a person was appointed to lins v. M'Mnlx.n. 1 Drew. 225; 9 Hare Ap|5. 
 
 represent a deceased party; and see 82; Jones f. Foulkes, 10 W. R. 55, V. O. 
 
 WhittinKton I'. Coo.iinK, 10 Ifarc Ai)p. 29. K. „ » ^» 
 
 In MilcH r. Hawkins, 1 C. 1*. Coop. T. •" Swallow v. Bnins, 9 Hare App. 47; 
 
 Cott. 300. wliich was a similar case b.C-rc 17 Jur. 295; Ex parte Cramer, 9 Hare 
 
 the Act, an objection for want of parties App. 47; Hewitson r. Todhutiter, p- I-;)- 
 
 was overruled"; see also (iod.lard v. Has- Ch. 76, V. ('. S. ; Jie Ranknig. L- 'j- V^fb 
 
 Ihip, 1 Jur. X. S. 251, V. C. W.; and 001, V. C. G. ; and .see^;w<, Cliap. XXAV ., 
 
 Ma.lox r. .lackson. 3 Atk. 400. § 3; Petitions, and Chap. XLIII., special 
 
 3 Ld. Red. 178. case.
 
 204 
 
 OF TARTIES TO A SUIT. 
 
 Cii. V. 5 1. 
 
 Propor juM-soil 
 to 1)1' ;lj)|M>int- 
 cil to ivpiv- 
 soiit tho 
 estate. 
 
 Moile of ob- 
 
 taiiiiiii; 
 
 appointment. 
 
 Administra- 
 tion pendente 
 lite, under 20 
 & 21 Vie. c. 
 77, § 70: 
 21 & 22 Vic. 
 c. 95, § 22. 
 
 \\niere execu- 
 tor or ad- 
 mini.strator 
 abroad, limit- 
 ed adminis- 
 tration 
 granted ; 
 
 :i]ilH>into(l under this section is tho person who would be appointed 
 ;idininistrntor tdl /item ;^ bnt the Court Avill not ;ipj)oint a person 
 agriiiist his will." It woiUd scorn that the plaintifT may ap])ly for, 
 and obtain, an order uinlcr the 44th section on motion, williout 
 serving the other parties to the cause or proceeding;' but notice 
 must be given to tho persons entitled to take out administration to 
 the deceased party ; * the Court can, however, make the order at 
 the hearing.^ No a])pearance is required to be entered by the 
 party a])pointed ; but notice of his api^ointment, and of the name 
 and address of the solicitor who will act for him, should be given 
 to the Record and Writ Clerk, for the purpose of service; and the 
 order should be produced to him for entry." 
 
 It should here be observed, that under the Court of Probate 
 Act, 1857 and 1858, 'the Court of Probate has power, pending 
 litigation as to the validity of a will, or the right to administration, 
 to appoint an administrator, who has all the powers of a general 
 administrator, except the power of distributing the estate, but who 
 is to act under the direction of the Court of Probate ; '' and the 
 same Statute also enables the Court of Probate, in certain cases, 
 where necessary or convenient, to appoint any person, either gen- 
 eral or limited administrator to a deceased person.^ 
 
 It has also been enacted, that if, at the expiration of twelve 
 calendar months from the death of any testator or intestate, the 
 executor or administrator, to whom probate or administration has 
 been granted, is then residing out of the jurisdiction of the Courts 
 of Law and Equity, the Court of Probate may, upon the a])pli- 
 cation of any creditor, next of kin or legatee, grant a special 
 administration, limited " for the purpose to become and be made 
 a party to a bill or bills to be exhibited against him in any of 
 
 1 Dean of Ely v. Gayford, 10 Beav. 561 ; 
 and see llelev. Lord Bexlev, 15 Beav. 340; 
 Ashniall v. Wood, 1 Jur. N. S. 1130, V. C. 
 S.; Sutherland ». De Vireniie, 2.Jur. N. S. 
 301, V. C. S., where the Court appointed 
 the executor who had not proved; see 
 also Moriimer v. Mortimer, 11 W. K. 740, 
 M. K. ; Swallow v. Binns, Hare App. 
 47; 17 .Jur. 295; Hewitson v. Todhunter, 
 22 L. J. 76, V. C. S.; Robertson v. Kem- 
 ble, W. N. (1867)305, M. K. 
 
 ■- Prince of Wales Association v. Palmer, 
 25 Beav. 605 ; Hill v. Bonner, 26 Be;iv. 372 ; 
 Lonff V. Storie, K:iv App. 12; ^Vhiteaves 
 V. Melville, 5 W. R" 676, V. C. ^V^ ; Joint 
 Stock Discount Company v. Brown, L. IJ. 
 8 Eq. 376, 380, V. C. J. 
 
 3 Seton, 1179; Davies v. Boulcott, 1 Dr. 
 & Sno- 23; see, however, contra. Chaffers v. 
 Headlam, 9 Hare App. 46. 
 
 •* Davies v. Boulcott, supra ; Tarratt v. 
 Wood, 2 .lur. X. S. 371, V. C. W. ; Joint 
 Stock Discount Co. r. Brown, L. K. 8 Eq. 
 376, V. C. J. Where, after decree, the 
 
 represcntiitive is required for the purpose 
 of accounts or inquiries at chambers, the 
 application for the order may be made 
 there by ex parte summons. For forms of 
 orders dispensing with and appointin^z rep- 
 resentatives, see Hele v. Lord Bexlej', 15 
 Beav. 340, Seton, 1178. 
 
 5 Hewitson v. Todhunter, 22 L. J. Oh. 
 76, V. C. S.; Mendes v. Guedalla, 10 W. 
 K. 485, V. C. W. 
 
 c Braithwaite's Prac. 561. Where a 
 representative is thus appointed of the 
 estate of a deceased party to the cause, 
 the title of tho cause is corrected by intro- 
 ducing, after the deceased's name, " since 
 deceased, and also A. B. appointed by 
 
 order, dated day of 187 — , to 
 
 represent his estate." 
 
 T 20 & 21 Vic. c. 77, § 70; and see Veret 
 V. Duprez, L. R. 6 Eq. 329, V. C. M.; 
 Tichborne v. Tichborne, L. R. 1 P. & D. 
 730. 
 
 8 20 & 21 Vic. c. 77, § 73.
 
 PERSONS HAVING CONCURRENT INTERESTS WITH PLAINTIFF. 
 
 205 
 
 her Majesty's Courts of Equity, and to carry the decree or decrees 
 of any of the said Courts into effect, and not further or other- 
 wise ; " and it has also been enacted, that the Court of Equity 
 in which such suit shall be depending, may appoint (if it shall be 
 needful) any person or persons to collect in any outstanding debts 
 or effects due to such estate, and to give discharges for the same ; 
 such persons or person giving security, in the usual manner duly 
 to account for the same. Moreover, the Accountant-General of the 
 Court of Chancery, or the Secretary or Deputy Secretary of the 
 Bank of England, are enabled to transfer, and the Bank is to suffer 
 a transfer to be made, of any stock belonging to the estate of such 
 deceased person, into the name of the Accountant-General, in trust 
 for such purposes as the Court shall direct, in any suit in which the 
 person to whom such administration has been granted shall be or 
 may have been a j^arty ; provided, nevertheless, that if the execu- 
 tor or administrator, capable of acting as such, shall return to and 
 reside within the jurisdiction of any of the said Courts pending 
 such suit, such executor or administrator shall be made party to 
 such suit; and the costs incurred by grantilig such administration, 
 and by proceeding in such suit against such special administrator, 
 shall be paid by such person or persons, or out of such fund, as the 
 Court where such suit is depending shall direct. AVhere an infant 
 is sole executor, administration with the will annexed must be 
 granted to the guardian of such infant, or to such other person as 
 tlie Court of Probate shall think fit, until such infant shall have 
 attained the full age of twenty-one years; at Avhich period, and 
 not before, probate of the will shall be granted to him. And the 
 person to whom such administration shall be granted shall have 
 the same powers vested in him as an administrator has, by virtue 
 of an administration granted to him durante minore mtate of the 
 next of kin.i And now, by t^ie " Court of Probate Act, 1858," 
 such limited a<lministration may be granted, whether it be or be 
 not intended to institute proceedings in the Court of Chancery .- 
 
 In some cases, where the trustee has bad no beneficial interest 
 in the projicrty, and was not possessed of a legal estate which he 
 could set uj) at law to the annoyance of the defendant in Equity, 
 the rule which requires that the trustees, or other ])ersons having 
 the legal estate in the thing demanded, should in all cases be 
 ]»efore the Court, has been disi)ensed with, and the Court has per- 
 mitted bills to be filed by the cestui que trusts without making 
 such trustee a ]>arty, the cestui que trusts un<lertaking for him 
 that he sliall coiifunn to such decree as the Court shall iiiake.^ 
 
 Ch. V. § 1. 
 
 And a receiv- 
 er appointed. 
 
 Stock may be 
 transferred 
 into name of 
 Accountant- 
 General, 
 
 in any suit to 
 whicli limited 
 administrator 
 a party. 
 
 Executor or 
 administrator 
 coming with- 
 in jurisdic- 
 tion must be 
 made a party. 
 
 When sole 
 executor is an 
 infant, special 
 administra- 
 tion granted. 
 
 Limited ad- 
 ministration 
 under -21 & 22 
 Vic. c. 'J5, 
 §18. 
 
 In what cases 
 trustees dis- 
 pensed with; 
 
 Where no 
 legal estate; 
 
 1 38 Geo. III. c. h7; 20 & 21 Vic c. 77, 
 § 74, and 21 & 22 Vic. c 95, § IH; see Col- 
 las I). Hesse, 12 W. li. 565, V. C. K.; 
 Dickins V. Harris, 1 W. N. 93, V. C S. 
 
 'i 2\ Sc 22 Vic. c. 95, § 18. 
 
 8 Kirk V. Clark, Prcc. in Ch. 275.
 
 206 
 
 OF PARTIES TO A SUIT. 
 
 Cn. V. § 1. 
 
 lutennodiato 
 trustees of 
 equitable in- 
 terests. 
 
 Deposit of 
 deeds. 
 
 Assijjnor of 
 equitable in- 
 terest. 
 
 Original les- 
 see, in suits 
 by lessor 
 against as- 
 signee of 
 lease. 
 
 Whore, however, new trustees of a settlement had been duly ap- 
 ]iointe»l, but the trust property had' not been assigned or trans- 
 lenvd to them, they were held necessary parties to a suit for 
 earryino- the trusts of the settlement into execution.^ 
 
 Again, where a bill Avas filed to carry the trusts of a will into 
 execution, whereby, amongst other things, lands were limited to 
 trustees for a term of years, to raise a sum of money by way of 
 portions for yoimger children, two of which younger children had 
 assigned their shares of the sum to be raised to a trustee for the 
 benefit of the others, but which last trustee was not before the 
 Court; it Avas considered that as the trustees of the term who had 
 the legal estate, and all the children who had the beneficial inter- 
 est, were parties, there was no occasion to make the other trustee 
 a party .'^ Upon the same principle, where a man had executed a 
 deed, providing, in case of his death, for a woman and her chil- 
 dren, and had deposited it in the hands of an attorney for the 
 benefit of all }iarties, but afterwards 2)rocin"ed possession of it him- 
 self, it was held, on demurrer, that the woman and her children 
 could maintain a suit to compel him to deliver up the deed, with- 
 out making the attorney with whom it Avas deposited, and against 
 whom no breach of trust was alleged, a party." 
 
 For the same reason it has been held, that although, as wc have 
 seen,'' the assignor of a chose in action is a necessary party to a suit 
 by the assignee, yet the assignee of an equitable interest in the 
 nature of a chose in action may maintain a suit for the assertion 
 of that interest without bringing the assignor before the Court.'' 
 
 The principle that the person having the legal right to sue for 
 the matter which he might enforce at Law against the defendant, 
 should be before the Court, applies to all persons who had legal 
 demands against the defendants arising out of the same matter; 
 thus, as it has been decided that at LaAV an assignee of a lease may 
 be sued for non-pei-formance of the covenants both by the lessor 
 and the original lessee from whom he derives title. Courts of Equity 
 will not permit either the lessor or lessee to institute proceedings 
 against him in respect of his covenants, Avithout having the other 
 before them, in order that the rights of both may be settled at the 
 same time. Upon this ground, where a man granted a lease of 
 houses for thirty years to B., who covenanted to keep them in good 
 rejiair, and died having bequeathed the term to his Avife ; and after- 
 wards by mesne assignments, the term became vested in a pauper, 
 
 1 Xelson V. Seaman, 1 De G., F. & J. 
 368; (J .Fur. N. S. § 258. 
 
 2 Heiul V. \A. Tevnliam, 1 Cox, 57. 
 
 3 Knve V. Moore,"l S. & S. 61. 
 
 4 Ante, p. 198. 
 
 5 Blake v. .Jones, 3 Ansf . 651 ; Sayles v. 
 Tibbitts, 5 K. I. 7'J; Cator v. Croydon 
 
 Canal Co., 4 Y. & C Ex. 405, 419; 8 .lur. 
 277, L. C. ; Pailwick v. Piatt, 11 Beav. 
 503; Kulham v. M'Ciirtliy, 1 H. L. Ca. 
 703; Bagsliaw r. Eastern Union Kail way 
 Co., 7 Hare, 114; 13 Jur. 602; aliirined, 
 14 Jur. 491.
 
 PERSONS HAVING CONCUREENT INTERESTS WITH PLAINTIFF. 
 
 207 
 
 but the houses becoming oiit of repair and the rent in arrear, a bill .^"•^•^^. 
 was brought by the lessor against tlie assignee for repairs and an ^ 
 
 account of the arrears of rent; upon an objection being taken, 
 that the executors of the original lessee were not parties, the Lord 
 Chancellor said, that to make the proceedings unexceptionable, it 
 would be very proper to have them before the Court ; for that it 
 did not appear to him but that the plaintiff might have had a sat- 
 isfaction at law against the executors, and, if so, the plaintiff's 
 equity will be their equity.^ The same objection was allowed in 
 the case of the City of London v. Richmond," which was also the 
 case of a bill against the assignee of a lease, for payment of rent 
 and perfonnance of covenants. 
 
 The rule which requires all persons, having similar rights to sue Drawer, or 
 at Law with that of tlie plaintiff; to be brought before the Court, P^Srf'aMl 
 does not apply to a bill filed by the last indorsee of a bill of ex- of exchange, 
 
 , . i , , 1 • 1 , • 1 • 1 -i not necessary 
 
 change winch has been lost, agamst the acceptor ; in which case it parties to a 
 has been held that neither the drawer ^ nor the prior indorsees are j^'^^^J'^J^^J 
 necessary parties;'' because, in such cases, the ground of the appli- recover ' 
 cation to a Court of Equity is the loss of the instrument ; and "^ "^ 
 relief is only given upon the terms of the plaintiff giving the de- 
 fendant ample security against being called upon again by the 
 drawer or indorsees, in case they should become possessed of the jj^^, semble, 
 instrument.'^ And it seems also, that the drawer is not a necessary tliawer, to a 
 
 ' ■ 1 1 1 T ^1"'- "'^' 'iccep- 
 
 party, where a suit is instituted by an acceptor against the holder tor against 
 
 of a bill of exchange Avhich is forthcoming, for the purpose of ||yel.y ^p'of^' 
 
 having it delivered up.^ l^'li- 
 
 The principle, that persons having co-existent rights with the General rule 
 
 plaintiff to sue the defendant must be brought before the Court in ^vlu-thurthe' 
 
 all cases where the subiect-matter of the right is to be litigated in right is in 
 ^, . . ,.1 1 1 • ^ J. • ^ ^ 1. Kqiiity or at 
 
 Equity, 18 not conhned to cases where such co-existent rights to Law. 
 
 sue are at Law ; it aijjjlies equally to cases where another person 
 has a right to sue, for the same matter in P^quity ; in such cases 
 the defendant is equally entitletl to insist that the person possess- 
 ing such riglit should be brought before the Court before any de- 
 cree is pronouncefl, in order that such right may be bound by the 
 decree." Tims, wiiere a bill was filed l)y a vicar against a seques- 
 trator for an account of the profits of a benefice, received during 
 its vacation, it appears to have been thought by the Court that the 
 bishop ought to have been a party to the suit, because the seques- 
 
 1 Sainstry v. Grammcr, 2 Krj. ('a. Ab. " Karlo v. ITolf, 5 Ilnrc, 180; see, how- 
 
 165 c. C. ever, I'cnfdhl r. Nunn, T) Sim. 405. 
 
 2*2 Vem. 421 ; 1 I?io. I'.C. cd. Touil. 510. 7 See Sliields v. Tlionnis, IH How. U. S. 
 
 3 Davies v. I)o<l(l, 4 Trice, 170. 2.">3. Where tlncc out of t'orty-scvi'ii ten- 
 
 * MucarttH'V r. (Jraiiam, 2 Sim. 285. ants in common liic<l a ijiil lor an injunc- 
 
 6 Itespwting the juriH'liction in ca^es of tion, to restmin digging of stone on tlio 
 
 lost notes and bills, sec 1 Story Kq. Jur. common proiierty, an objection for want of 
 
 55 85, «0. partic'' was overruled. Ackroyd r. liriggs, 
 
 14 \V. K. 25, V. C. S.
 
 208 
 
 OF PAirriKS TO A SUIT. 
 
 Cii. V.5 1. 
 
 Lunatic, in 
 suit by bishop 
 and seques- 
 trator I'or 
 tithes ; 
 
 and in all 
 suits on his 
 behalf. 
 
 Whether for 
 whole or 
 part; 
 
 joint-tenants. 
 
 Joint-tenants, 
 or tenants in 
 common, 
 in case of 
 partition. 
 
 Lessee of ten- 
 ant in com- 
 mon. 
 
 Termor for 
 years may sue 
 
 trator Avas accoimlaliU' to liim for wtiat he iiad received;^ and, on 
 till' otluT hand, w ht'iT a liill was lilcd Ity a bishop and a sequestra- 
 tor against an oocnjtior tor an aci-ount ot" tithes during tlie lunacy 
 of tlie incumbent, who liad been fotnid a hmatic under a commis- 
 sion, it "svas held that the incumbent or his committee ought to 
 have been a j)arty.'^ It seems, however, that where a living is un- 
 der sequestration for debt, the incumbent may maintain a suit for 
 tithes without making the sequestrator or the bishoj) a ]>arty. This , 
 a])])ears to have been the opinion of Lord Lyndlnirst C. B., in 
 Warrington v. Sadler,^ where a decree was made in a suit by a 
 vicar for tithes, although the vicarage was under sequestration, 
 and the occupiers had actually paid certain alleged moduses to 
 the sequestrator. Upon the prinei])le above stated, it is held, that 
 in general, Avhere a suit is instituted on behalf of a lunatic either 
 by the Attorney-General or his committee, the lunatic himself 
 must be a co-plaintiff, because he may recover his senses, and 
 would not be bound by the decree.'' 
 
 In the above cases, the ])erson required to be party had a con- 
 current right with the plaintiff in the whole subject of the suit ; 
 the same rule, however, applies where he has only a concurrent 
 right in a portion of it; thus, where there ai"e two joint-tenants 
 for life, and one of them exhibits a bill, the other must be a ])arty, 
 unless the bill shows that he is dead ; ® and where A., B., and C. were 
 joint lessees under the City of London, and A. and B. brought a 
 bill against the lessors to have certain allowances out of the rent, 
 and it apjjeared upon the hearing that C. was living, an objection, 
 because he was not a party to the bill, was allowed ; ® and so, 
 where a bill is brought for a ])artition either by joint-tenants or 
 tenants in common, as mutual conveyances are decreed, all persons 
 necessary to make such conveyances mtist be parties to the suit;'' 
 and where one tenant in common had granted a lease of his share 
 for a long term of years, the lessee was held to be a necessaiy 
 party to the suit, at the expense, nevertheless, of his lessor, who 
 Avas to be responsible for his costs.* Where, however, three out 
 of forty-seven tenants in common filed a bill for an injunction to 
 restrain the digging of stone on the common property, a de- 
 murrer, for want of parties was overruled ;^ and where a tenant in 
 common had demised his share for a long term of years, it was 
 
 1 Jones V. Barrett, Bunb. 192. 
 
 2 Bishop of London v. Nicholls, Bunb. 
 UL 
 
 8 1 Young, 283. 
 
 ■*. See an<e, pp. 9, 82; Gorham v. Gor- 
 ham, .3 Barb. Ch. 24. 
 
 5 Haycock V. Haycock, 2 Ch. Ca. 124; 
 Weston «. Keighlcy, Rep. temp. Finch, 82. 
 But see Pbitt v. Squire, 12 Met. 494, in 
 which this rule seems to have been disre- 
 garded. Post, 213, note. 
 
 6 Stafford v. The City of London, 1 P. 
 Wms. 428; 1 Stra. 9.5, S. C. 
 
 ■? Anon., SSwiin. 139; Brasher «. Macey, 
 3 J. J. Marsh. 93; see Braker v. l>eve- 
 reaux, 8 Paige, 513. Every person inter- 
 ested ill land belonging to co-tenants 
 should be made partj' to a bill for parti- 
 tion. Borah v. Arciiers, 7 Dana, 17G. 
 
 » Cornish v. Gcst, 2 Cox, 27. 
 
 9 Ackroyd v. Briggs, 14 W. K. 25, V. 
 C.S.
 
 PERSONS HAYING CONCURRENT INTERESTS WITH PLAINTIFF. 209 
 
 held that the tennor for years was entitled to file a bill for a par- Ch. V. § i. 
 
 tition against the other tenants in common, without bringing the ' ■< ^ 
 
 reversioner of the share demised before the Court ; ^ and so it J^r^|;^Jt^\^°': 
 
 seems tliat where one of the parties is only tenant for life, he may sor. 
 
 maintain a suit for a ]>artition Avithout the party entitled in remain- Wli?" tenant 
 ' -"^ ' . . for lite may 
 
 der.- Where the object of a suit is to ascertam boundaries, the without 
 rule is different, and the Court will not entertain a bill of that de- ^^^^'iTr'^'''^' 
 scription without having the remainder-men and all parties inter- ^ot where 
 ested betbre it.3 ££>^r" 
 
 It is not in general necessary, in questions relating to real prop- daries. 
 erty, that the occupying tenants under leases should be parties, Lessees not 
 unless their concurrence is necessary, as in the case above referred ^"^'^"^^1 
 to of the lessee of a tenant in common ; or unless the object of the unless in par- 
 suit is to restrain an ejectment brought against them instead of tition; 
 against their landlord ; as in the case of Zawley v. Waldon* in restrain an 
 which Lord Eldon allowed a demurrer for want of parties to a bill ejoctment. 
 by the owner of an estate, to restrain an action of ejectment against 
 his tenant without making him a party ; observing, however, that 
 if the plaintiff in Equity had been made a defendant at Law, as he 
 might have been, he should not have thought it necessary to make 
 the tenant a party to the bill, notwithstanding his being a co-de- 
 fendant ; but that, as he was the only defendant at Law, he must 
 be a party to the bill.^ 
 
 But, although it is not usual, in suits relating to i)roperty, to Owner of in- 
 make the occupying lessees of such property parties to the proceed- gui^sTfTes-'^ 
 ings, yet if such lessees, or other persons having only limited in- sees, to estab- 
 terests in the property, seek to establish any riglit respecting such right 
 property, it is necessary that they should bring tlie owners of the 
 inheritance before the Court, in order that in case the suit is un- 
 successful, the decree of the Court dismissing the bill may be 
 binding upon 1 l>em. Tlius, to a bill by the lessees of property in 
 a ])arish to estahlish a modus, tlie owner of the inheritance must When a mo- 
 be a i»arty; antl fur the same reason, if there is a question con- Jion|" '"*^^ 
 
 1 Bariiit; v. Na«h, 1 Vcs. & B. 5.15; Ilea- represent. 1 Story Kq. Jur. C5G; Giiskcll 
 ton V. Dearilen. 16 Heav. 147. v. (jaskell, 6 Sim." M'i\ Woltoii i\ V.i<\,c- 
 
 2 WilLs V. Sliule, G Ves. 498; see nlso land, 7 Joliti. Cii. 14(i; Striker r. Jlott, 2 
 Brnsscv v. Chalmers, 4 Da G., M. & G. rnif,'«, 367, 38'J ; Woodworth v. CamplK-ll, 
 628. It does not constitute any olijeclion 6 I'aige, 518. 
 
 in Equity, that tiie partition mas' not ^ Itayley v. Best, 1 U. & M. G59; seo 
 
 finally conclude the interests of all per- nlso Miller v Warmiiifjton, 1 J. & W. 
 
 sons, as, where the [(artitiori is asked only 484; Speer v. Crawler, 2 Mer. 410; Atlor- 
 
 by or against a tenant for life, or where nev-Uoneral v. Ste])hens, I K. & .1. 724; 
 
 there are contingent interests to vest 1 .)ur. N. S. 103'J; U l>e("i., M& (i. Ill; 
 
 in persons not in tsue. For the Court 2 .lur. N. S. 51; Siory l'.i\. I'l. § 105. All 
 
 will still proceed to make partition he- the tenants in common sliould be parlies 
 
 tween the parties before the Cnurt, who to a suit for adjusting' land lilies. I'opo 
 
 possess com|)(;lent present interesls, such i'. Mclonc, 2 A. K iMiirsh. 2'M. 
 
 as a teuiinl for life or for years. The * 3 Swun. 142; I'oide y. Mar.sh, 8 Sim. 
 
 partiti'in in such ciises, however, i-t bind- 528. 
 
 mg only upr)n those jiarties wiio are before '• See Story Kq. I'l. § 151. 
 the Court, and those whom they virtually 
 
 VOL.. I. 14
 
 210 
 
 OF TAKTIES TO A SUIT. 
 
 rn.V. 5 1. 
 
 or tees of 
 otRcc, 
 
 or a right of 
 way. 
 
 Where juris- 
 diction ■with- 
 drawn from 
 Court of Law. 
 
 Lessee may 
 sue for tithes, 
 without les- 
 sor; 
 
 SecTis, where 
 claim under 
 parol demise. 
 
 cornino; a right of conniioii, tliouoh a k-asolioltlor may enforce it at 
 Law, yet if he bring a bill in K(jiiity to establish such right, he 
 must bring tlie })ersons in wlioni the fee of his estate is vested be- 
 fore the Court ; ^ and so, in a suit in Equity to establish a right to 
 fees in an otlice, although m an action at Law for such fees it is 
 not necessary to make any person a ]iarty but the one wlio has 
 actually received such fees, yet in E(juity it is necessary to have all 
 persons before the Court who have any j)retence to a right.^ 
 
 Upon the same princij^le, where a bill filed by a lessee against a 
 lord of a manor, and the tenant of a particular house, to have the 
 house, which obstructed the plaintiff's way, ]>ulled down, and to be 
 quieted in the possession of the way for the future, the defendant's 
 counsel objected for want of parties, because the plaintiff's lessor 
 was not before the Court, and the objection was allowed.* 
 
 These cases all proceed upon the principle before laid do\\Ti, 
 namely, tliat of i)reventing a defendant from being harassed by a 
 multii»licity of suits for the same thing ; in consequence of which 
 principle it is held to be a rule of a Court of Equity, that if you 
 withdraw a question from a Court of Law for the purpose of in- 
 sisting upon a general right, you must have all the parties before 
 the Court who are necessary to make the determination complete, 
 and to quiet the question.* 
 
 The a2:)plication of this rule, however, is strictly confined to c&ses 
 where the lessee seeks to establish a general right ; where he only 
 seeks that which is incidental to his situation as tenant, he need 
 not make his landlord a party. Thus, a lessee of tithes may file a 
 bill for tithes against an occupier, without making his lessor a party, 
 because the claim to tithes abstracted, is merely possessory ; and, 
 upon the same principle, where an occupier who was sued for tithes 
 by the lessee of an impropriate rector, filed a cross-bill against such 
 rector for a discovery of documents, &c., a demurrer to such bill by 
 the rector was allowed.^ 
 
 In order to entitle a lessee to sue for tithes without liis lessor, 
 he must claim under a demise by deed^ because tithes, being things 
 which lie in grant, cannot be demised by parol, and a decree in 
 favor of a plaintiff claiming under a verbal demise, would therefore 
 be no bar to another suit for the same tithes by the lessor. Uj')on 
 this ground, in Henning y. Willis^ the Court of Exchequer allowed 
 a demurrer to the plaintiff's bill because the imjiropriator, who was 
 the lessor, was not a party, and the plaintiff having submitted to 
 the demurrer, obtained leave to amend his bill by making the im- 
 
 1 Poore V. Clark, 2 A tk. 515; Story Eq. 
 PI. § 121. 
 
 2 Pawlet V. Bishop of Lincoln, 2 Atk. 
 296. 
 
 3 Poore V. Clark, 2 Atk. 515. 
 
 4 Poore V. Clark, 2 Atk. 515; see Crews 
 V. Biircham, 1 lilack, U. S. 312 
 
 6 Tootli V. The Dean & Cliapter of Can- 
 terbury, -3 Sim. Gl. 
 
 6 3 Wood, 29; 3 Gwil. 898.
 
 PERSONS HAYING CONCURRENT INTERESTS WITH PLAINTIFF. 211 
 
 propriatov a party.^ A similar deinurrer was put in to a bill for Ch. V. § 1. 
 tithes by a lessee under a parol demise, in JacJcson v. Benson^' and' ''^ i^ ' 
 allowed ; le.;ye being also gi\en to amend, by making the impro- 
 priator a party ; and in Williams v. Jones,^ the principle to be 
 deduced from the foregoing cases was recognized by Lord Lynd- 
 hurst C. B. In that case the vicar, who was the lessor, had been 
 originally made a party to the suit, but as he had by his answer 
 disclaimed all interest in the tithes in question, the plaintiti' had 
 dismissed the bill as against him, and brought the suit to a hearing 
 against the occupier only ; and Lord Lyndhurst held, that as the 
 vicar had been originally a party, the circumstance of the bill hav- 
 ing been dismissed as against him, made no difference, for although 
 his disclaimer could not be read against the other defendants, no 
 inconvenience could arise, because the lessor, after such disclaimer, 
 would never be allowed to set up any claim against the occupier 
 for the same tithes. 
 
 The rule, that i)ersons claiming joint interests in an estate can- joint-tenants 
 not sue Avithout making their comi)anions parties, applies equally ot legacy; 
 whether the subject-matter of the suit be real or personal property; 
 thv.s, where a legacy is given to two jointly, one cannot sue for it 
 alone ; though where there are several legacies, each may sue for 
 his own.* And so, where there are several persons interested as 
 joint-tenants, in money secured by mortgage, they must all be joint-tenants 
 made parties to a bill to foreclose such mortgage.'^ This was de- °| ^g'^^^^f® 
 cided to be tlie law of the Court by Lord Thurlow, in the case of foreclosure 
 Zowe V. Morfjan^' where a mortgagee had assigned the ntoney se- ^"'^^' 
 cured by the mortgage to three persons as joint-tenants. In that 
 case, his Lordship appears to have laid a stress upon the circum- 
 stance of the parties interested in the money being joint-tenants ; 
 from V hich it has been inferred that a tenant in severalty or in 
 common might foreclose as to his share, without making the other or tenants in 
 persons interested in the money parties ; and a decree to this eflect common, 
 was actually made by Lord Alvaiiley M. K. in a case where trustees 
 of money belonging to several individuals had laid it out on a 
 mortgage, and afterwards one of the jtersons entitled to ])artof the 
 mortgage money filed a bill against the mortgagor and tlie trustees 
 for his share of the mortgage money, or a foreclosure ; whicli was 
 
 1 The hill was amended, by makinff flie So where a legacy is given to A. and B. in 
 les.-or a d'-l' nd:int, iind praying timt tlie c(|iial nmicries, a bill will lie by A. (or his 
 occupier niiglit be dccref il to account nuiielj', witliout making B. a p;irty to the 
 with tlie Ichsur, and that what should be suit. Huglison v. Cookson, 3 Y. & C. (J78. 
 fouu'l due in the account niiuht bi; i)a d '' Stuckcr r. Stucki-r, 3 ,1. J. MMrsh. 301 ; 
 into (Joiirt. lor Ihe bcndit of the plain- ^Ving r. Davis, 7 (Jrecnl. 31; raluior v. 
 tiff. .See Lord Lyndhurrt's judgment in Karl of Caili.-lc, 1 S. & S. 423; Sloiy Kq. 
 Williams v. Jones, Vounge, 266. I'l. § 201; N'lvcs v. Sawver, 3 Vt. IGU ; 
 
 2 .M'Lel. 02; 13 I'ri. 131. Wooilward r. Wood, li) Ala. 213. 
 
 « 1 Vounpe, 252. « 1 liro. C. C. 3*38; and see Slansfield 
 
 « Haycock r. Haycock, 2 Cli. Ca. 121. v. Hobbon, 10 Beav. 100.
 
 212 
 
 OF PARTIES TO A SUIT. 
 
 Oh. V. § 1. 
 
 <> Y ' 
 
 All persons 
 iutorostod in 
 niorli^am' 
 nioni'\' are 
 neccssar}' ; 
 
 but some of 
 the bcnetioia- 
 ries therein 
 may now be 
 dispensed 
 with. 
 
 All persons 
 entitled to 
 redeem. 
 
 Owner of one 
 of two estates 
 mortgaged 
 for same sum, 
 cannot re- 
 deem his part 
 separately. 
 
 entcrtiiiiUHl, nltliouglt tljc ]\'irtios iiitcrestod in tlic rest of tlic money 
 wove not boibro the Com-t.' 
 
 In ;i ease before Sir John Leneh V. C, however, it was deter- 
 tniiu'd that there can be no redemption or foreclosure unless all 
 thi' parties interested in the mortgage money are before the Court; 
 and, on tliis ground, a bill by a person entitled in severalty to one- 
 sixth of the mortgage money, to foreclose one-sixth of the estate, 
 was dismissed with costs.'-^ The rule as laid down by Sir John 
 Leach, in the case above cited, is now modified by the provision of 
 the late Act enabling trustees, in suits relating to real or personal 
 estate vested in them, to represent the persons beneficially entitled,^ 
 unless the Court requires such persons to be parties ; and the Court 
 has, accordingly, in a redemption suit, dispensed with some of the 
 beneficiaries, though it appears that it will not dispense with all.* 
 In a foreclosure suit, however, the trustees of the debt, under an 
 assignment for the benefit of creditors, were held sufficiently to 
 represent all the creditors.^ 
 
 As a person entitled to a part only of the mortgage money cannot 
 foreclose the mortgage Avithout bringing the other parties interested 
 in the mortgage money before the Court, so neitlier can a mortgagor 
 redeem the mortgaged estate without making all those Avho have an 
 equal right to redeem with himself parties to the suit.® 
 
 For this reason it was held, in Lord Cholmondeley v. Lord Clirh- 
 ton.^ that where two estates are mortgaged to the same j^erson for 
 securing the same sum of money, and afterwards the equity of 
 redemption of one estate becomes vested in a different party from 
 
 1 Montgomerie v. The Marquis of Bath, 
 3 Ves. 560. In Mr. Uek's note (1) to 
 Lr)we -y. Jlorgan, 1 15ro. CO. (I'erkins's 
 ed.) 368, he submits, that the decision in 
 Montgomerie v. M. of J5., uhi supra, is 
 evidently wrong. See also Story Eq. PI. 
 §201. 
 
 2 The assignment of a note secured by 
 mortgage, is not an assignment of the 
 mortgage. The assignee, however, in 
 such case has an equitable interest in the 
 mortgage, which a Court of Equity will 
 uphold and protect; and, therefore, when 
 a bill is brought to foreclose or redeem 
 the mortgage tlie assignee should be made 
 a part}' to the suit. Stone v. Locke, 46 
 Maine, 44-5. 
 
 3 1.5 & 16 Vic. c. 86, § 42, r 0. 
 
 4 Stansfield v. Hobson, 16 Beav. 189. 
 
 5 Morley r. Morley, 25 Beav. 253; see 
 Thomas v. Dunning, 5 De G. & S. 618; 
 Knight V. Powell, 24 Beav. 436; 4 Jur. 
 N. S. 197. 
 
 6 Chapman v. Hunt, 1 McCarter (N. .J.), 
 149; Story Eq. PI. § 201; Mitford's PI. 
 39,164; Large v. Van Doren, 1 AlcCarter 
 (N. J.), 208. 
 
 A mortgagor, filing his bill to redeem, 
 may bring before the Court all parties who 
 
 might call for redemption; or he may 
 bring his bill against the last mortgagee, 
 if he choose to incur the risk of a (ore- 
 closure by a prior mortgagee during its 
 pendency. Stone v. Barllett, 46 Maine, 
 438, 443. In I'latt v. Squire, 12 Met. 494, 
 it was held that one of two joint assignees 
 of a second mortgage could maintain a 
 bill, in his individual name, to redeem the 
 l)rior mortgage, without joining his co- 
 assignee. iJewey J. said: " The plainlift' 
 has a lepal interest, as assignee of that 
 mortgage, although not the entire interest. 
 His re(lenii)tion will enure to the benefit 
 of his co-tenant. He can ordy redeem by 
 payment of all claims of the defendant 
 under the prinr mortgage to the same 
 extent as would have been paid if the 
 co-assignee were a part}' to the bill; and 
 therefore the defetidant can sustain no 
 injury." When this case came again 
 before the Court the same learned Judge 
 said: "It was somewhat questionable, 
 wheiher the plaintilf, as joint assignee, 
 could rely upon this mortgage to support 
 a bill to redeem filed by hini alone. But 
 the Court held that he might." Piatt v. 
 Squire, 5 Cush. 553. 
 V 2 Jac. & W. 3, 134.
 
 PEESOXS HAYING CONCUREEXT INTEEESTS WITH PLAINTIFF. 213 
 
 the Other, the owner of one cannot redeem his part separately. Ch. V. § i; 
 The mortiragee is entitled to insist that the whole of the mort- ' > ' 
 gaged estate shall be redeemed together ; and, for this purpose, 
 that all the persons interested in the several estates or mortgages 
 should be made parties to a bill seeking an account and redemp- 
 tion.i The same rule prevailed in Palk v. Lord Clinton,'^ which 
 differed from that of Lord Cholmondeley v. Lord Clinton, above 
 cited, in the circumstance, only, of its being a bill by a second 
 mortgagee of part of an estate to redeem a first mortgage, which 
 embraced the w^hole property. 
 
 In the above cases, the mortgage of the two estates was for the O^Tier of two 
 same sum of money, and was part of the same transaction. The gaged^o^e- 
 rule, however, has been extended to cases where a mortgage has ^^'J^^^'^'J'^J^^J 
 been of two distinct estates to the same mortgagee for securing redeem one 
 different sums of money; and it has been decided in many cases, o^^^y; 
 that a mortgagee of two separate estates, upon distinct transactions 
 from the same mortgagor, is entitled to hold both mortgages till 
 the amount due upon both be discharged ; and that even against 
 the purchaser of the equity of redemption of one of the mortgaged 
 estates without notice ; so that the mortgages, although for dis- 
 tinct sums, are in effect for one sum. Upon this principle, where 
 the purchaser of the equity of redemption of a mortgaged estate 
 filed his bill against the mortgagee, to redeem, and the defendant, 
 by his answer, stated a subsequent mortgage made to him, by the 
 same mortgagor, of a distinct estate for a distinct debt, it was held 
 that the persons interested in the equity of redemption of the sec- 
 ond mortgage were necessary parties to the suit.*^ And this rule 
 prevails although one mortgage be a pledge of personalty and the thouRh one 
 other a mortgage of realty.* It does not, however, hold longer J^'Je^jj^.^Jj^^^ 
 than while both mortgages continue united in the same mort- and the other 
 gagee ; so that if a mortgagee, having two distinct mortgages on °^ ^^^^^y- 
 two separate estates, assigns one of the mortgages to a third per- 
 son, the assignee of the assigned mortgages need not be brought 
 before the Court in a suit to redeem the other.^ 
 
 The rule Avhich requires that in a bill filed for the purpose of i„s„iti,y 
 redeeming a mort<--a<i;e, tlie i)laintifi" should bring ]»efi)re the Court second moru 
 all those who, as well as himself, have a right to redeem, has been re'tkcm the 
 held to apply to a second incumbrancer filing a bill to redeem a J^or'nSes- 
 prior incuiiibranco, who must, in such case, bring the mortgagor, sary party. 
 
 1 StorvK<|- ri§ 182; J5:iilevr. Myiick, 10 ,Tur. Ill; Tassell v. Sniilh, 2 Di' G., & 
 3C Maim"- 50. " (i- 71o; 4 .hir. N. S. 1090; Vint v. I'ailffet, 
 
 2 12 Vis. •»«. 2 Dc (J. & .1. 611; 4 .lur. N. S. 1122; 
 8 In.M.ii IV Dciin, 2 Cox, 425; sec Story Selltv v. I'onifret, 1 J. & 11. MO; 7 Jur. 
 
 En. V\ § 2h7. N. S. 8C0; 3 De G., V. & J. 6<J5; ib. 835, . 
 
 * .loni's r. Smitli, 2 Veg. J. 372, reversed L. C. 
 
 bv House of Lords, see 6 Vcs. 229, n. ; see 6 Willie v. Lugg, 2 Eden, 78. 
 al.-o Watts V. .Syines, 1 De G., M. & G. 240 ;
 
 2U 
 
 OF rAUTIKS TO A SUIT. 
 
 Cu. V. § 1. 
 
 Rut mny fore- 
 close mort- 
 gagor and 
 third mort- 
 gagee with- 
 out the first 
 being a party. 
 
 Sale of in- 
 cumbered 
 estates. 
 
 Execution of 
 trusts of sur- 
 plus. 
 
 as \vi>ll as the prior incninbrnncor before tlic Court.^ This is a 
 rule ot" \o\\g; stnndin;^", and was followed by Lord Thurlow, when 
 liis adhcrenee to it was very inconveiii(Mit in consequeiice of the 
 heir-at-law of the inortiragor being abroad. His Lordship then 
 said, that it seemed to liini "ini])ossible that a second mortgagee 
 should eome into Court against the first mortgagee without making 
 the n\ortgagor or his heir a party. The natural decree is, that the 
 second mortgagee shall redeem the first mortgagee, and that the 
 mortgagor shall redeem him or be foreclosed," ^ The same rule 
 was confirmed by Lord Eldon, in I^alk v. Xord Clinton,' and has 
 ever since been acted upon as the rule of the Court.* 
 
 But although a second mortgagee seeking to redeem a first mort- 
 gagee, must make the mortgagor or his heir a party, yet he may, if 
 he i^ensc, foreclose the mortgagor and a third mortgagee, without 
 bringing the first mortgagee before the Court, because by so doing 
 he merely puts himself in the place of the mortgagor and subse- 
 quent mortgagee, and leaves the first mortgagee in the situation 
 in which he stood before.^ And if, in such a case, he makes the 
 prior mortgagee a party, he must offer to redeem him.^ For the 
 same reason it has been held that a third mortgagee buying in 
 the first, need not make the second mortgagee a party to a bill to 
 foreclose the mortgagor. Upon the same ground it is unnecessary, 
 in a bill by creditors or incumbrancers for the sale of an estate, to 
 make annuitants, or other prior incumbrancers, parties ; '^ and so,, 
 in a suit for the execution of a trust by those claiming the ultimate 
 benefit of the trust after the satisfaction of prior charges, it is held 
 not to be necessary to bring before the Court the persons claiming 
 the benefit of such prior charges ; and, therefore, to a bill for the 
 application of a surplus after payment of debts or legacies, or other 
 prior incumbrances, the creditors, legatees, or incumbrancers need 
 not be parties.* 
 
 1 Thompson v. Baskerville, 3 Ch. Rep. 
 215; Fnrmer v. Curtis, 2 Sim. 46C; and 
 see Hunter v. Miicklew, 5 ILire, 238. 
 
 2 Fell V. Brown, 2 Bro. C. G. 276. 
 
 3 12 Ves. 48 
 
 < Siorv Eq. PI. §§ 84, 186, 195; see Hal- 
 lock V. Smith, 4 .John. Cli. 649; 4 Kent 
 (11th ed.), 186. In a suit for the fore- 
 closure of a mortgage of retd estate, 
 claimed as a homestead, the wife being a 
 necessary party to a full adjustment of 
 the controversy, should be allowed to 
 intervene. Sargent v. Wilson, 5 Cal 504. 
 So the wife should be mnde a party to a 
 bill to f ireclose a mortgage executed by 
 her and her husband. .Johns v. Keardon, 
 3 Md. Ch. Decis. 57. In a bill to reih^-m 
 by a widow, who is entitled to dower in 
 her husband's lands, subject to a mortgage 
 executed in his lifetime, in which she 
 joined to release dower, she may joni as a 
 co-defendant to the mortgagee, one who 
 
 after the execution of the mortgage, pur- 
 chased her husband's interest in the land. 
 McCabe v. Bellowes, 1 Allen, 269. 
 
 5 Richards v. Cooper, 5 B. 304; Lord 
 Hollis's CMse, cited 3 Ch. Rep. 86; Rose v. 
 Page, 2 Sim. 471; Brisco v. Kenrick, 1 
 C. P. Coop. t. Cott. 371; and see Arnold 
 V. Bainbrigge, 2 Oe «., F. & J. 92; 
 Audslev V. llonn, 26 Beav. 195; 6 Jiir. 
 N. S. 205; 4 Jur. N. S. 1207; 1 De G., F. 
 & J. 220; Story Eq. PI. § 193; see 
 Person V. Merrick, 5 Wis. 231; Wright v. 
 Bundv, 11 Iiid. 398. 
 
 e Gordon y. llorsfall, 5 Moore, 393; 11 
 Jur. 569. 
 
 "! Rose V. Page, 2 Sim. 471; see Parker 
 V. Fuller, 1 R. & M 656. 
 
 8 L. Red. 175. In Kunkel v. Msirkell, 
 26 Md. 407, Weisel .J. said: " The principle 
 is well est:ibli-hed that upon a bill to fore- 
 close, the mortgagor is a necessary 'party, 
 unless the bill discloses a state of facts or
 
 PERSONS HAVING COXCUREENT INTERESTS WITH PLAINTIFF. 
 
 215 
 
 Under the provisions of the late Act above referred to with 
 regard to trustees representing their cestui que trusts,^ it has been 
 held, that when the mortgaged estate was vested in trustees, who 
 also, as executors of a will or otherwise, were the persons who 
 would be in possession of the funds for payment of the mortgage 
 debt, they might properly represent the beneficiaries,^ but that 
 when this was not the case, the cestui que trusts, or some of them, 
 must be before the Court.^ 
 
 When the mortgagor has become bankrupt, he is not a necessary 
 party to a suit ibr foreclosure, even if the assignees disclaim ; * 
 though the last proposition appears to have been doubted by Sir 
 James Wigram V. C.^ 
 
 The same principle which calls for the presence of all persons 
 having an interest in the equity of redemption in the case of bills 
 to redeem a mortgage, requires that where a mortgagee seeks to 
 foreclose the mortgagor, he should bring before the Court all per- 
 sons claiming an interest in the mortgage ; ® therefore, a derivative 
 mortgagee must make the original mortgagee, or, if dead, his repre- 
 sentative, a party to a bill against the mortgagor for foreclosure^ 
 
 If, however, a mortgagee has assigned or conveyed away from 
 himself, not only the money due on the mortgage, but also the 
 mortgaged premises, the assignee may, as we have seen, foreclose 
 without making the original mortgagee a party,® and upon the 
 same principle, it may also be inferred, from the case of lienvoize 
 
 Ch. V. § 1. 
 
 Trustees, if 
 also execu- 
 tors, having 
 redemption 
 fund, repre- 
 sent tlieir 
 cestui que 
 trusts of 
 incumbered 
 estates. 
 Bankrupt 
 mortgagor 
 not a neces- 
 sar\- party, 
 though 
 assignees 
 disclaim. 
 All persons 
 interested in 
 mortgage 
 should be 
 parties to 
 foreclosure 
 suit. 
 
 Original 
 mortgagee 
 not necessary, 
 where mort- 
 gage as- 
 signed ; 
 
 a condition of things, — as for instance, 
 the insolvency of the mortgagor, — which 
 ■would rcmler tlie making of him a p;ir!y 
 unnecessary." " I'pon a bill of foreclo- 
 sure," -Mr. Justice Story says, " the mort- 
 gagor himself is a n^•ces^iary parly, as 
 well lis tlie incnnibriinceis, whenever he 
 possesses any ri<;ht which may be iili'ectcd 
 by tlie decree; for lie is a pmper piirty to 
 the account of wh:U is due on the niort- 
 gage; ai;d ultimately he is eniitlcd to re- 
 deem against all the incumbrancers, as 
 the pffson liavini: the ultimate interest." 
 Story Kfi. I'l § i;»5; Ilallock v. Smith, 4 
 John. Ch. 049; Kariiier v. Curtis, 2 Sim. 
 46«; WorthinKtoii v. Lee, 2 Hlanil, G78. 
 But when the niortgagor li;is conveyed 
 the mortgaged premises by dei'd of w:ir- 
 rantv to a third party he cannot maiiif;iin 
 a hifl to redeem. Phillips v. I.eavilt, 04 
 Maine, 405, 407. 
 
 If the equity of redemption belongs to 
 different prrsons, as devisees, or as lega- 
 tees, having charges thereon, all of them 
 should he jnined as defendants. Story 
 Eo. I'l. 5§l!)-3. 107; McGown v. Yorks, 
 6 John. Ch. 4-0O. 
 
 If the niortgagr.r, who is owner of the 
 fee, ^houl'l die, his heir is an indi'pensable 
 pHrty to a bll to foreclose. Story Kq. PI. 
 § l!iO. 
 
 Where the mortgagor has conveyed his 
 
 equity of redemption absolutely, the as- 
 signee only need be made a partv to the 
 bill to foreclose. § 197. 
 
 1 15 & 16 Vic" C 86 § 42. 
 
 2 ILmman v. Kilev, 9 Hare App. 40; 
 Sale r. Kitson, 3 I)e G., M. & G. 119; 17 
 Jur. 170; 10 Hare App. 50; Wilkins v. 
 Kecves, 3 W. li. 305; L. R. 3 Eq. 494. V. 
 C. W.; Marriott v. Kirkham, 3 Giff. 536; 
 8 Jur. N. S. 379. 
 
 3 Goldsmith v. Stonehewer. 9 Hiire App. 
 38; 17 Jur. 199; Young v. Ward, 10 Hare 
 Ajip. 58; Cropper v. Mellersh, 1 Jur. N. 
 S. 299, V. C. S ; and see Silfken r. Davis, 
 KayAp|). 21; Wilkins v. liaevc*, supra ; 
 Tuiler J! .Morris, 1 Sm. & G. 503; Wat- 
 teis V. Jones, Jur. N. S. 530, V. C. S. 
 
 4 CoJinsf. Shirley, 1 U. ^S: M. 638; Ker- 
 rick r. Sath'rv, 7 Sim. 317; see idso Cash 
 I'. Hilcher, 1 "llaie, 310; 6 Jur. 190; l-'orJ 
 V. White, 10 Heav. 120. 
 
 '^ SiiiL'Icton i;. Co,\, 4 Hare, 320. 
 
 6 See Story Va\. i'l. § 199; 4 Kent (lllh 
 ed.), 186; Western lleserve Bank v. Pot- 
 ter, 1 Clarke, 432. 
 
 7 llcbart I'. Abbot, 2 P. Wins. 643. 
 
 « ."Miller r. Henderson, 2 Slockt. (X. .1.) 
 320, l'.i4. A morlgiigee ol land ^^ho has 
 assigned his interest in the mortgage since 
 the breach of the condition may be in- 
 cluded as a defendant in a l)ill to redeem. 
 Doody V. Pierce, a Allen, 141.
 
 2i(; 
 
 OF TAKTIES TO A SUIT. 
 
 (^11. V. ? 1. 
 
 not lu'ir, 
 whi'R" inoit 
 
 In matters 
 iKcoimt. 
 
 of 
 
 Partnership. 
 
 Residues. 
 
 V. (\wpc)\'^ that whiMv a mortgagee has ilevised his interest in the 
 inortL^age in siu-h a inaiuu'r as to pass not only the mortgage money- 
 bat the estate mortgaged, the devisee alone may foreclose without 
 making the heir-at-law of the original mortgagee a party,- unless 
 he claims to have the will established ; '' in which case he must be 
 made a defendant, because it has been held that a devisee and heir 
 cannot join in the same suit, even upon an allegation that they have 
 agreed to divide the matter in question between them.* 
 
 The rule which requires that all parties interested in the object 
 of a suit should be parties to the bill, applies to all cases in which 
 an account is sought against a defendant. One person cannot ex- 
 hibit a bill against an accounting party without bringing before 
 the Court all persons who are interested in having the account 
 taken, or in the result of it, otherwise the defendant might be 
 harassed by as many suits as there are parties interested in the 
 account.^ Thus, in a suit for a partnership account, or for a share 
 of a partnership adventure, it is in general necessary that all per- 
 sons having shares in the same adventure should be parties,^ and a 
 residuary legatee seeking an account and share of the residue, 
 must bring before the Court all the parties interested in that 
 residue : "^ either active parties, by making them plaintiffs or de- 
 
 1 6 Mad. 371. 
 
 2 Griilmm v. Carter, 2 Hen. & M. 6. 
 
 3 Lewis V. Nanole, 2 Ves. 631. 
 
 4 Cholmondfcley v. Clinton, 1 T. & R. 
 104, 116. 
 
 6 McCabe v. Bcllowes, 1 Allen, 269, 270; 
 New England, &c.. Bank v. Newport Steam 
 Factory, 6 K. I. 154. 
 
 6 Ireton v. Lewis, Rep. t. Fincli, 96; 
 Moffatt V. Farquhnrson, 2 Bro. C. C 338, 
 and Mr. Belt's note (1); but it is to be 
 obsen-ed, that notwithstanding the deci- 
 sion in this case, they may be made qnnsi 
 parties by the plaintiff suins on beluilf 
 of himself and on their behalf. Good v. 
 Blewit, 13 Yes. 307; and see Hills v. 
 Nash, 1 I'hil. 594; 10 Jur. 148; CuUen 
 V. Duke of Queensberry, 1 Bro. C. C 101, 
 and Mr. Belt's note; Dozier v. Edwards, 3 
 Litt. 72; Story Eq. I'l. § 106; Story 
 Tartn. § 440; "Collyer I'art'n. (I'erkins's 
 ed.) § 361; Wells r. Strange, 5 Geo. 22; 
 Mudgett V. Gager, 52 JIaine, 541. When 
 n bill in Equit}-, brought by one of four 
 partners, against one only of the other 
 tliree, for an account, &c., alleges that the 
 other two are n(it within the jurisdiction 
 of the Court; that :ill the others have 
 received their full share of the partner- 
 ship efTecfs; and th:>t the defendant has 
 received much more than his share, and 
 the plaintiff much less; a demurrer to the 
 bill, fVir nonjoinder of the other partneis 
 as det'endants, will nut be .'ustained. 
 Towle r. Pierce, 12 Met. 329; see Story 
 Eq. PI. § 78; Vose v. Philbrook, 3 Story, 
 
 335; Lawrence v. Rokes, 53 Rfaine, 110, 
 116; Jlallow V. Hinde, 12 Wheat. 193; 
 Fuller I'. Benjamin, 23 Miiine, 255; Mud- 
 gett V. Gi'ger, 52 Maine, 541. 
 
 But a bill seeking an adjustment of the 
 accounts between the part-owners of a 
 vessel, some of whom reside witlmut the 
 jurisdiction of the Court, cannot be sus- 
 tained, unless such non-residents are 
 summoned to answer, or it appears from 
 the allegations in the bill that not only 
 their interests will not be prejudiced by 
 the decree, but also that tliey are not 
 necessary to the just ascertainment of the 
 merits of the case. Mudgett v. (iager, 52 
 Alainc, 641. It is not enough that the bill 
 allege that the plaintiff does not claim 
 there is any thing due to him from said 
 non-residents; or that he does not seek 
 thereby to recover any thing from them. 
 ]\Iudgett V. Gager, supra. Reprc'^enta- 
 tives of a deceased partner should be 
 made parties to a bill to dissolve a yiart- 
 nershij), and the bill may be amended for 
 that purpose. Buchard v. Boyce, 21 Geo. 
 6. To a claim seeking payment of a part- 
 nership debt out of the assets of a deceased 
 partner, the surviving partner is a necessary 
 party. Hills v. M'Rea, 5 Eng. Law& Eq. 
 233." So the heirs of a deceased partner 
 must be parties when a sale of real estate 
 is souglit for the payment of firm debts. 
 I'ugli V. Ciirrie, 5 AUi. 446; Lang v. War- 
 ing, 25 Ala. 625; Andrews v. Brown, 21 
 Ala. 437. 
 
 7 Parsons v. Neville, 3 Bro. C. C 365.
 
 PERSONS HAVING CONCUREENT INTERESTS WITH PLAINTIFF. 
 
 217 
 
 fendants to the bill ; or passive parties, by serving them with 
 notice of the decree.^ And so, where a moiety of a residue was 
 given to one of the defendants for life, and, upon his decease, to 
 such persons as she should appoint, and, in default of appointment, 
 to certain other persons for life, it was held that the other persons, 
 although their interests depended upon such a remote contingency, 
 ought to be before the Court.^ 
 
 Uj)on the same principle it is, that in suits by next of kin against 
 a personal representative for an account, the Court requires that 
 all the next of kin should be parties to the suit,^ in the same 
 manner as in the case of residuary legatees ; either as plaintiffs or 
 defendants to a bill, or by being served with notice of the decree.* 
 It is to be observed, that in all^ cases where the parties claim 
 under a general description, or of being some of a class of persons 
 entitled, the Court would not formerly make a decree without 
 being first satisfied that all the individuals of the class, or who 
 came under the general description, were before it. For this pur- 
 pose the Court, in cases of this d(!scription, before directing an 
 account, or other relief prayed by the bill, referred it to one of the 
 Masters to inquire Avho the individuals of the class, or answering 
 the general description, Avei'e ; and then, if it turned out that any 
 of them were not before the Court, the plaintiff must file a supple- 
 mental bill, for the purpose of bringing them in before the cause 
 
 Ch.V. §1. 
 
 In suits by 
 next of kin 
 
 Practice 
 ■where suit by 
 some of class ; 
 
 Inquiry as to 
 class divest- 
 ed. 
 
 In CofUburn v. Thompson, 16 Ve-?. 328, 
 Lord Kldon said, this admits of exception, 
 •vvliere it is not necessary, or inconvenient. 
 Storv Ivi- I'l. § MJ, and' notes, § 203, 204; 
 PritdiMrd r. Ilicl<;s, 1 Paifje, 2r,3; Sliep- 
 parl r. Starke, 3 Munf 29; Urown u. 
 Kicivetts, 3 .lolin. Ch. 533; Davoue v. 
 I'aiiniiif,'. 4 John. Ch. 199; West v. Ran- 
 dall. 2 Miison, 181, 190-199; Hiison r. 
 .MKfii/.ic, Dev. Kq. 403; Arcnd.ll v. 
 I'.lackwell, ib. 3.^4; Heth.l v. Wilson, 1 
 Dev. & Hut. F.q. 610. In lirown v. Kiclc- 
 etts, 3 .I'liii. Ch. .'j53, Mr. Cliiincellor Kent 
 seems to have tlioii;;lit, that all the resid- 
 uary lef^atees should he tPclinically par- 
 ties hv name. So in Davoue r. Fanning 
 4 .hili'n. Ch. 199. It has, however, been 
 intimat(Ml and maintained in other cases 
 that a residiiarv legatee mi;,'lit sue in be- 
 half "f himself and all others, without 
 making; them technically parties. See 
 Kettle ('. Ciary, 1 I'aipe, 417, 419, 420, 
 arid note; Uoss i'. Crar^', I I'nitii:, 416; 
 Ilalle't 17. Ilallett, 2 I'aige. 19. 20; KRljcrt 
 r. Woods, 3 I'.iige, 517. Hole 1, adopted 
 in 1") & 10 Vic. c. 80, provides tliiit " any 
 residiiiry le^'.a'ee or ne.xt of kin may, 
 without servin}^ the remaiiiinp; residuary 
 h'salees or next of kin, have a decree for 
 (he ndminis'ralion of the personal estate 
 of n deceased peison." 
 
 1 l--. & 16 Vice. 86, § 42, rr. 1, 8. 
 
 2 Sherrit i'. liircli, 3 l$ro. C C. 229 
 
 (Perkins's ed. note); Davies v. Davies, 11 
 Kn^i'. Law &Eq.l99; Lena^lian i'. Smith, 
 2 Phil. 301; 11 Jur. 503; but not when 
 the share lias been ascertained and in- 
 vested. Smith V. Snow, 3 Mad. 10; Hares 
 V. Stringer, 15 Beav. 206 ; see also Grace 
 V. Terrington, 1 Coll. 3. A contingent in- 
 terest depending on the event of a suit 
 is not such an interest as to make the 
 person liaving it a necessary party. Bar- 
 bour r. Wliitlock, 4 Monroe, 180; see Reid 
 V. Vanderhcyden, 5 Cow(^n, 719. 
 
 3 See Hawkins c. Il.iwkins, 1 FLtre, 
 543, 540; 6 .Jur. 638, explaining Caldecott 
 V. Caldecott, C. & P. 183; 5 Jur. 212; and 
 see Shuttleworth v. Ilowarth, C. & P. 
 230; 5 Jur. 499; Noland r. 'Iinner, 5 J. J. 
 JIarsh. 179; West r. Randidl, 2 Mason, 
 181; Kellar V. Heelor, 5 ^hlnroe, 573; 
 Oldham v. Collins, 4 J. J. Marsh. 50; 
 Story Kq. PI. § 89, ami cases cited; sea 
 also Rule 1 in preceding note 1. 
 
 1 15 & 10 Vice. 80, § 42, rr. 1, 8. 
 
 G Where one of the next of kin of an 
 intestate, who died in India, procured 
 letters of administration to his elVects 
 here, it was held that he might sue the 
 person who had taken out an Indian ad- 
 ministration, and bad afterwards come to 
 this country, witliout makins: the rest of 
 the next of' kin pjirties. S;indilamls r. 
 lMlie«, 3 Sim. 204; hut see Story Kq. PI. 
 § 179; Story Conf. Laws, §§ 513, 514,
 
 218 
 
 OF PARTIES TO A SUIT. 
 
 Oi.V. M. 
 
 Formerly, 
 deori'o made 
 coutiiifjont oil 
 result ot" in- 
 quiry; 
 
 But now, in- 
 qxurv should 
 not, in terms, 
 be prolimiua- 
 Tv to taking 
 the accounts. 
 
 One legatee 
 interested in 
 realty, or one 
 residuary de- 
 visee or heir, 
 may have an 
 administra- 
 tion decree ; 
 but the others 
 must have 
 notice of it. 
 
 Exceptions to 
 rule, where 
 some of the 
 parties have 
 been account- 
 ed with and 
 paid; 
 
 was finally heanl.^ Ami lux-ording to Sir James Wigram V. C, 
 in an adniinistvation snit, in which inquiries are necessary to ascer- 
 tain who are the parties benelicially interested in the estate, it is 
 irregular to direct the accounts to be taken until after the inquiries 
 have been made, and the Master has made his rejiort. But where 
 the parties interested are the children of a party to the suit, or are 
 persons of a class in such circumstances, that the Court may be 
 reasonably satisfied, at the hearing, that all parties beneticially 
 interested are parties to the record, the Court may, at the time of 
 directing the inquiries, also order that, if the Master shall find that 
 all the jiersons beneficially interested are parties to the suit, he do 
 then proceed to take the account ; this is, however, an irregularity; 
 and the Court will not make the order in that form, unless it be 
 reasonably clear that all the persons interested are parties.^ Under 
 the present practice of the Court, however, it being no longer 
 necessary to make all the residuary legatees or next of kin parties 
 for the purpose of the decree, although it is usual still to direct 
 such an inquiry as above mentioned, yet it should not in terms be 
 made preliminary to taking the accounts, in order that the Judge's 
 discretion to proceed in the absence of the parties may not be 
 fettered.^ 
 
 In like manner as in the case of residuary legatees and next of 
 kin, one legatee interested in a legacy charged upon real estate, 
 one of the persons interested in the proceeds of real estate directed 
 to be sold, or one residuary devisee or heir, may have an adminis- 
 tration decree, without making the others of the class parties in 
 the first instance ; though they must be served with notice of the 
 decree.* 
 
 The nde that all persons interested in an account should be 
 made parties to a suit against the accounting party, will not ap])ly 
 where it appears that some of the parties interested in such ac- 
 count have been accounted with and paid ; thus, in the case of a 
 bill by an infant cestui que trust coming of age, for his share of 
 a fund, it is the constant practice to decree an account without 
 requiring the other cestui que trusts who have come of age before. 
 
 1 But see Waite v. Templer, 1 S. & S. 
 319; Story Eq. PI. § 90, and notes. But 
 one of several of the next of kin of 
 an intestate, entitled to distribution, may 
 sue for his distributive share without 
 making the other distributees parties, if 
 the latter nre unknown, or cannot be 
 found, and that fact is charged in the bill. 
 Jb. In such case the bill nmy properly 
 be filed on behalf of the phiintiiff, and also 
 of all the other persons who may be en- 
 titled as distributees, lb. Hule5 iulopted 
 in 15 & 16 Vict. 8G, provides that " In all 
 cases of suits for the protection of property 
 
 pending litigation, and in all cases in the 
 nature of trusts, any person miiy sue on 
 behalf of himself and of all persons hav- 
 ing the same intere-^t." 
 
 ^ Baker v. Hnrwood, 1 Ilare, 327; see 
 also Hawkins v. Hawkins, 1 Hare, 543; 6 
 Jur. 038; Sav v. Cree'l, 3 Hare, 455; 8 
 Jur. 893; Phillipson v. Gatty, 6 Hare, 26; 
 12 -lur. 4.30. 
 
 8 Seton, 188; Ord. XXXV. 18; and as 
 to evidence necessary to support such an 
 inquiry, see Milleri'. I'riddon, 1 M'N. & G. 
 087. 
 
 4 15 & 16 Vic. c. 86, § 42, rr. 2, 3, 8.
 
 PERSONS HAVING COXCUREENT INTERESTS "WITH PLAINTIFF. 
 
 219 
 
 and have received their shares, to be before the Court.^ And in 
 the case of a partnership, where a bill was filed against factors by 
 the persons interested in one moiety of a cai'go of tobacco, for a 
 discovery and account as to that moiety, without making the per- 
 son interested in the other moiety a i^arty, and it appeared that 
 the defendants had distinguished in their accounts between him 
 and the plaintiffs, and had divided the funds, and kejit separate 
 accounts, the Court held that the oAvner of the other moiety was 
 not a necessary party to the suit.^ And where A., B., C, being 
 partners together, A. agreed with D. to give him a moiety of his 
 share in the concern, it was held that an account might be de- 
 creed between A. and I). Avithout making B. and C. parties.^ It 
 is also held, that to a bill by a person entitled to a ^certain aliquot 
 portion of an ascertained sura in the hands of trustees, the co-cestui 
 que trusts are not necessary parties.* In some cases where a party 
 having a joint interest with the j^laintiifs in the taking of an 
 account has been abroad, the cause will be allowed to go on with- 
 out him ; ^ thus, in the Exchequer, where a bill was filed by some 
 of the children of a freeman of London, who was dead, for an 
 account and division of his personal estate, and it appeared that 
 one of the children was beyond sea, the Court was moved that 
 they might hear the cause without him; and that if it appeared 
 that he had any right, he might come before the deputy remem- 
 brancer on the account ; and though no precedent was produced 
 of such an order, the Court gave liberty to hear the case without 
 him." 
 
 The question whether a trustee of an estate can be called upon 
 by a purchaser of a portion of an estate sold to difierent persons 
 under a trust for sale, without bringing all the other persons in- 
 terested in tlie same estate before the Coiu't, was discussed before 
 Lord Eldon, in the case of Goodson v. EUison? In that case the 
 juisons beneficially interested in an estate vested in trustees had. 
 
 Ch. V. § 1. 
 
 and in eases 
 of partner- 
 ship. 
 
 "Where bill is 
 for portion of 
 ascertained 
 
 "Wlicre party- 
 having joint 
 interest is out 
 of the juris- 
 diction. 
 
 Purchasers of 
 ditierent por- 
 tions of an 
 estate from 
 benelieiaries, 
 where legal 
 estate out- 
 standing. 
 
 I D'Wolf f. D'Wolf, 4 R. I. 450. So 
 where the division of an estate in pursu- 
 ance of a will, is not to lie made at one and 
 the same time, but at the severiil periods 
 whfi) any one or more of the legatees shall 
 sc|iarate from, the testator's family, it i> not 
 necessary that a I ilie legatees he made par- 
 ties to each ^uit in ( 'lianei'rv for a ilivision ; 
 Iiiit only tho-e fnlith'! to participate in the 
 divi^illn tlun in i^iuslion. ISrancli r. Hooker, 
 3 .MunC. 43. So where it apfieared, that 
 some of the Ifgalces had obtained decrees, 
 in miother ••uit. for their portions, it was 
 pp'per lo dismiss the liill us to them, tliey 
 having t>een niade defi'iuiants. Moore v. 
 IJeanclmmp, 5 Dana, 71. 
 
 '^ Wcvmonth r. Hoyer, 1 Ves. .1. 416; sec 
 also Anon.. 2 K(\. Cii. Ah. ICG, pl 7; Hills 
 I'. Na.sh, 1 I'hil. 504,597; 10 Jur. 148. 
 
 3 Brown v. De Tastet, .Tac. 284; see also 
 Bray v. Fromont, C Mad. 5. 
 
 ^ "Perrv v. Knott, 5 Beav. 29.3; Smith v. 
 Snow,3 Jiad 10; Story E(|. PI. §§207, 212; 
 Hares?'. Stringer, 15 Beav. 206; I.enaghan 
 V. Smith, 2 I'hil. 301; 11. Jur. 503; Ihintr. 
 Peacock, 6 Hare, 361 : 11 .Jur. 555. 
 
 6 Storv K(|. I'l §§ 78-f';9,an'l cases cited; 
 ;\lilligaii V. Milledge, 3 CrMneii, 220; West 
 V. Kiitidall, 2 Mason, I'JG; Weymouth v. 
 Boyer, 1 Sumner's Ves. 418, note (c), and 
 cases cited; Towie v. Pierce, 12 Met. 329; 
 S'ory Kf|. PI. § 78; Vo«e r. Pliilbrook, 3 
 Story 335; niile, 216, note; Lawrence v. 
 l!okes, 53 .Maine, 110; Mutlj^ett v. Gayer, 
 52 .Maine, 541. 
 
 « lingers V. Linton, Bunb. 200. 
 
 " 3 Uuss. 583, 593, 596.
 
 220 
 
 OF TATITIES TO A SUIT. 
 
 Ch. Y. § 1. 
 
 Cestui que 
 trusts, in suits 
 b}' trustees ; 
 
 for specific 
 performance, 
 under trusts 
 for sale. 
 
 ninny years before the conimonocment of the suit, proceeded to 
 sell the entirety in vnrioiis lots, one of which av:is jiuichnsed by 
 the jihiintitf, and all the ]ierson8 beneficially interested joined in 
 conveying it to him. The trustee, however, did not join, and 
 u])on his death the legal estate became vested in the defendants, 
 upon whose refusal to convey without the sanction of the Court, 
 the bill was filed, and a decree for a conveyance by the defendants 
 ■was pronounced by Lord Giiford M. R., Avho directed that they 
 should pay the costs of the suit. Upon ap])eal, hoAvever, to Lord 
 Eldon, his Lordship expressed considerable doubts whether a 
 trustee could be called upon to divest himself of a trust by con- 
 veying different parcels of the trust property at different times, 
 and whether it was not therefore necessary to have all the otlier 
 cestui que trusts before the Court ; but upon re-argument the 
 Lord Chancellor stated, that he thought there were parties enough 
 before the Court to enable him to make a decree, but as it w\as the 
 case of an old trust, he thought the Court w\as bound to inquire 
 into the facts, and that the trustees had a right to have the con- 
 veyance settled in the Master's office. 
 
 It is a general rule, arising out of the preceding principles, ad- 
 mitting of very few exceptions, that a trustee cannot, under ordi- 
 nary circumstances, institute proceedings in Equity relating to the 
 trust property, without making the cestui que trusts parties to the 
 proceeding.^ Thus, whore a bill is filed by trustees for sale, against 
 a purchaser, for a specific performance of the contract, the cestui 
 que trusts of the purchase-money must be parties unless there is a 
 clause in the trust deed declaring the receipt of the trustees to be 
 a sufficient discharge, which is considered as a declaration by the 
 author of the trust, that the receipt of the persons beneficially 
 interested in the produce of the sale shall not be necessary ; ^ and 
 
 1 Kirk V. Clark, PreP. Cha. 275; Larcre 
 V. Van Doren, 1 McCarter (N. J.), '208; 
 Phillipson v. Gatty, 6 Hare, 26; 12 .lur. 
 430; see, however, Alexander v. Cana, 
 1 De G. & S. 415. A mere nominal trustee 
 cannot brin^ a suit, in his own name, with- 
 out joiniiif,' iiis cestui que tntstsw\{\\ him. 
 Stilwell V. iM'Neely, 1 Green Ch. 205; 
 Schenck V. Ellinswood, 3 Kdw. CH. 175; 
 Helm V. II:irdin. 2 U. Monr. 232; IMalin v. 
 Malin, 2 John. Ch. 238; Fish v. Howlan.I, 
 1 Paipp. 20 ; P.ifield v. Taylor, 1 Beattv, 93 ; 
 Storv Kq. I'l. 55 207, 209: Biisney v. Spear, 
 17 Geo. 223: I iallv. Harris, 11 Texas. 300; 
 Woodward v. Wood, 19 Ala. 213; HicHards 
 17. Richards, 9 Gray, 313. Where a bill in 
 Equ'ty to enforce the specific performance 
 of a contract involves the title o^ i\\e. cestui 
 que trusts to the property in dispute, or where 
 thej- are interested, n"t only in the fund 
 or estate respecting which the question at 
 
 issue has arisen, but also in that question it- 
 self, thev are necessary parties. Van Doren 
 V. lioljinson, 1 C. E. Green (N. ,].). 256. 
 Rule 4, adopted in 15 cSc 16 Vic. c 86. pro- 
 vides that "any one of several cestui que 
 tnists under any dee 1 or instrument may, 
 witiiout serviiijrany other of sudi ceslid que 
 trusts, have a decree for the execution of 
 the trusts of the deed or instrument ; " see 
 M'Lcod V. Annesley, 16 Beav. 6'i7: Jones 
 V. Jiiines, 9 Hare App. 80. Tlie cestui que 
 trusts are not necessary parties to a suit in 
 which a mortgnfie for their lienefit is br u^ht 
 in question, — ilieir trustees are the proper 
 pnrties to represent them. Now Jersey, 
 &c., Co. f AiTies, 1 Heasley(N. J.), 507; 
 Asiitonv. Atlantic Bank, 3 Allen, 219. 220; 
 Shaw V. Norfolk County U. U Co.. 5 Vmy, 
 170, 171; Wrigiit v. Bimdy, 4 Ind. 398. 
 
 '■2 Per Sir J. Leach V.C., Calvcrly v. 
 Phelp, 6 .Mad. 232.
 
 PERSONS HAVING CONCURRENT INTERESTS WITH PLAINTIFF. 
 
 221 
 
 where a bill was filed by certain persons, describing themselves as 
 trustees for a society consisting of a great number of persons, for 
 the specific performance of an agreement entered into by them- 
 selves for the benefit of the society, and a demun-er was put in 
 because the members of the society were not parties to the suit, 
 upon the argument of which, it was insisted that a trustee could 
 not file a bill respecting the trust property, without making the 
 cestui que trust a party ; and that, although the members of the 
 society were so numerous that it Avas not practicable to make all 
 of them parties, the bill ought to have been filed by some of them 
 on behalf of themselves and the others, and that it did not appear 
 by the bill that the plaintifis were even members of the society, the 
 demurrer was upon these grounds allowed.^ Upon the same prin- 
 ciple, if a mortgagee dies, and his heir files a bill of foreclosure, the 
 executor of the mortgagee must be a party,^ because, although at 
 Law the legal right to the estate is in the heir, yet in Equity he is 
 only considered as a trustee for the executor, who is the person 
 entitled to the mortgage money;-' and for this reason, where the 
 heir of the mortgagee had foreclosed the mortgagor without making 
 the executor of the mortgagee a party, and a bill was filed by the 
 executor against the heir, the land was decreed to the executor.* 
 It seems, however, that although the personal representative is the 
 person entitled to receive the money, the heir has a right to say 
 that he will pay oft" the mortgage to the executor, and take the 
 benefit of the foreclosure himself;^ and for this reason as well as 
 that before stated, the heir of a mortgagee is a necessary party to 
 a bill of foreclosure by the personal representative,® unless the 
 mortgagee has devised the mortgaged estate, in which case, as we 
 have seen, his heir is not a necessary party to a bill by the devisee 
 to foreclose the equity of redemption.'' 
 
 There are instances in which, under peculiar circumstances, 
 trustees arc allowed to maintain a suit, without their cestui que 
 trusts as in the case before mentioned, of trustees under a deed, by 
 which estates are vested in them upon trusts to sell and to apply 
 the produce amongst creditors or others, with a clause, declaring 
 the receijjt of the trustees to be a good discharge to the pur- 
 Mass. 309; Grace v. Hunt, Cooke (Tenn.), 
 3'14; Denn v. Spinning, 1 Halst. 471. 
 * Gobe V. Carlisle, cited '2 Vern. 06. 
 6 Clerkson v. JSowyer, '1 Vern. CO. 
 Story Kq- I'l. §200; Davi.su Heming- 
 way, 2i) Vt. 438. Tlie heirs of a deccaspd 
 mnrtf;af,'ce cannot, iiowever, sustain a bill 
 for foreclosure, but it niU'-t Ije brouf^lit in 
 the name of the executor or !idniini>trator. 
 Hoatli V. Smith, 5 Conn. 133. 
 '' Kenvoize v. Cooper, C .Mad. 371. 
 
 Ch. V. § 1. 
 
 Not neces- 
 sary where 
 receipts of 
 trustees good 
 discharges. 
 
 Iklembers of a 
 numerous so- 
 ciety, in suit 
 in behalf of all 
 for specific 
 performance. 
 
 Executor of 
 mortgagee, in 
 suit by his 
 heir to fore- 
 close ; 
 
 but heir of 
 mortgagee 
 may redeem 
 the mortgage. 
 
 In what cases 
 trustees may 
 sue without 
 ceitid que 
 trusts. 
 
 1 Douglas V. Ilorsfall, 2 S. & S. 184. 
 
 2 Sec Koath V. Smith, 5 Conu. 133; 
 Graham v. Carter, 2 Hen. & M. 6; Story 
 Kq. I'l. § 200. 
 
 3 I'Vcake V. Ilorsev, Nels. 93 ; 2 Freem. 
 180, S. C. ; 1 Cli. Ca. 01, S. (J. ; 2 Kq. Ca. 
 Al). 77, S C ; Dexter v. Arnold, 1 Sumner, 
 113; 4 K'-nt (lllh ed ), 1«0; Com. Dig. 
 Tit. Chan ,4 A. 9; Demarestr. Wvnknop, 
 3 John. Ch. 145; Scott v. Macfarfand, 13
 
 222 
 
 OF rAllTIES TO A SUIT. 
 
 On. V. § 1. 
 
 30tli Oril. of 
 Aug., 1841. 
 
 I'hasers.^ Ami now by tlio oOth Order of August, 1841, in all suits 
 concerning real estate which is vested in trustees by devise, and 
 such trustees are coni])etcnt to sell and give discharges for the 
 proceeds of the sale, and for the rents and jirolits of the estate, 
 such trustees shall represent the persons beneiiciaily interested in 
 the estate, or the proceeds, or the rents and profits, in the same 
 manner, and to the same extent; as the executors or administrators 
 in suits concerning personal estate, represent the ])ersons benefi- 
 cially interested in such personal estate ; and in such cases it shall 
 not be necessary to make the persons beneficially interested in such 
 real estate, or rents and profits, parties to the suit.'^ But the Court 
 may upon consideration of the matter on the hearing, if it shall 
 so think fit, order such persons to be made parties. This order aji- 
 
 1 See Calverly v. Phelp, 6 Mad. 229 ; as 
 to foreclosure in such case-*, ^cepost, S. C. 
 AVlierc it appears on tiie face of the con- 
 tract lliat it was the intent of the parlies 
 to exclude the cestui que trust from the ne- 
 cessity of taking any part in the transaction 
 relating to the management of the trust, the 
 cestui que trust is not a necessarv party. 
 Bitiehl I'. Taylor, 1 IJeat. 91; S. G. 1 Moll. 
 192. So where a hill is hrought bj' the 
 trustee to obtain possession of the trust 
 property, an' I the cestui que trust has no 
 interest in the poss-e^sion. Fur;;uson v. 
 Applenhite, 10 Sin. & M. 301; Ashton v. 
 Atlantic IJank, .3 Allen, 219, 220. A trus- 
 tee may niiiiutain a bill to redeem a mort- 
 gage, made by himself, of the trust estate, 
 without making his cestui que trust a party. 
 Boyden v. Partrid^^e, 2 Gr.iy, 190. 
 
 Where a mortgiige deed of land has been 
 executed to a trustee, to secure the p:'y- 
 ment ofdebts to sundry persons, the trustee 
 may maintain a bill to foreclose, without 
 making the cestui que trusts parties. Swift 
 V. Stebbins, 4 Steiv. & P. 467; Shaw v. 
 Norfolk County R K. Co , 5 Grr.y, 170, 171. 
 
 A conveyance in trust ma}' be cancelled 
 by a decree in Equity though the cestui que 
 trusts be not made parties. Campbell v- 
 Watson, 8 Ohio, 500. 
 
 2 This rule has been adopted by the Su- 
 preme Court of the United States, liquity 
 I^ule, 49. But it has been abrogated in 
 Eiijiland by Cons. Ord., Prel. Ord. r. 1 ; the 
 cases which it was intended to meet being 
 included in the more comprehensive en- 
 actments of 15 & 16 Vic. c. 86, § 42, r. 9; 
 whereby it is provided, that in all suits con- 
 cerning real or personal estate, which is 
 vested in trustees under a will, settlement, 
 or oUierwise, such trustees shall represent 
 the persons beneficially interested under 
 the trust, in the same manner, and to the 
 same extent, as the executors or adminis- 
 trator-i, in suits concerning personal estate, 
 represent the persons beneficially inter- 
 ested in such personal estate, and in such 
 cases, it shall not be necessary to make the 
 
 persons beneficially interested under the 
 trust parties to the suit, but the Court may, 
 upon consideration of the matter, on the 
 hearing, if it shall so think lit, order such 
 persons or anj'' of them to be made parties. 
 This rule is retrospective, and ajiphesto all 
 suits, as well as redemption and foreclosure 
 suits. Fowler v. Boyldon, 9 Hare App. 78; 
 Goldsmid v. Stonehewer, 9 Hare App. 38; 
 17 Jur. 199; White v. Cliittv, 14 VV. K. 
 366, V. C. W. It has been held that, in an 
 administration suit, tlie trustees of settled 
 shares sufficiently represent their ccsiu/f/ife 
 trusts. Densem v. Kl worthy, 9 Hare App. 
 42. It has also been held, that executt rs 
 with a power of sale, and al-o devisees in 
 trust subject to payments ofdebts, are trus- 
 tees within the rule; Shawy. ilardingham, 
 2 W. K. 657, M. R. ; Smith v. Andrews, 4 
 W. R. 353, V. C. K. ; but that an execu- 
 tor with only an implied power of sale, is 
 not. Boltmi v. Stannard, 4 .Jur. N. S. 576, 
 M. R.; see, however, 22 & 23 Vic. c. 35, 
 §§ 14, 16. The rule does not apply when 
 tlie cestui que trusts have concurred in 
 breaches of trust. Jesse v. Bennett, 6 l)e 
 G , M. «&'G. 609; 2 Jur. N. S. 1125. And 
 where an estate is sold under a decree of 
 the Court, as a general rule (with a ]>ossible 
 exception in some cases of extreme dilii- 
 cult3')i the Court will, in the exercise of its 
 discretion, require all the persons interested 
 in the proceeds to be parties to the suit; or 
 to be served with notice of the decree, in 
 order to secure a projjcr and advantageous 
 sale, and protect the title of purchasers from 
 being open to inquiry or impeachment; 
 Doodv V. lliggins, 9 Hare App. 32; I'lctott 
 V. Pigott, 2 N. R. 14, V. C. W. ; and where- 
 ever the trustees' personal interest ma}'- 
 prevent them jirotecting the interest of the 
 cestui que trusts, the Court will require the 
 cestui que trusts, or some of them, to be 
 made parties. Read v. Prest, 1 K. & .1. 183. 
 Trustees caimot, however, represent some 
 of the cestui que trusts in any contention 
 inter se ; but only where the contention 
 is between all the cestui que triists on the
 
 PERSONS HAVING COXCURRENT INTERESTS WITH PLAINTIFF. 223 
 
 plies, not only to suits by jiersons claiming adversely against the Ch. V. § i. - 
 estate, but also to suits by some of the persons beneficially inter- ""— — y — — ^ 
 ested, seeking relief in respect of alleged misconduct of the trustees ; 
 and in such cases, it renders it unnecessary that persons having 
 charges on the estate should be parties.^ It is necessary, however, 
 that the trustees who are einpowered to give discharges, should 
 themselves be entitled to the legal estate, otherwise the order does 
 not apply,. and the cestui que trusts must be made parties to the 
 suit.- In cases, also, where the interest of the cestui que trusts is When trustee 
 collateral to the rights between tlie plaintiff and the defendant, a oui cestui que, 
 person standing in the place of trustee has been allowed to main- ^rmu. 
 tain a suit resjiecting the trust property, without making the per- 
 sons for whom he is trustee, parties ; thus the pawnee of a chattel 
 or his representative may maintain a suit for the chattel without 
 making the ^iJi^vner a party.^ And so in the case of Saville v. 
 Tancred^^ where a bill was brouglit for an account, and for the de- 
 livery cf a strong-box, in which were found jewels, and a note in 
 these words: "Jewels belonging to the Duke of Devonshire," in 
 tlie liands of Mr. Saville, whose rejjresentative the plaintiff was, 
 and in whose possession they had been for fifty years, and an ob- 
 jec.ion Avas taken that the Duke's rej^resentative ought to have 
 Ijcen a party, it was held that the plaintiff might sustain the suit 
 without l)im.^ And upon the same princij)le, where one of two 
 trustees had been j)revailed upon by his co-trustee to transfer the 
 trust fund into his name alone, and the co-trustee -afterwards sold 
 the stock, and received the produce, and never replaced it ; u])on 
 a bill filed by the trustee against his co-trustee to compel \\\\\\ to 
 rejilace the stock, a demurrer was put in, on the ground that the 
 cestui que trusts of tlie fund were not made parties, which, upon 
 argument, was overruled." And wliere a trustee filed a bill to fore- 
 close a mortgage, it being a breach of trust to have lent the money 
 
 one liand, and a stranger on the other. the iimpoity pledged, which avers that the 
 
 lluiiioiid i\ U alker, 3 Jur. N. S. CfcG, V. C. ])'aiiili(l"s claim is sutHcient to cover the 
 
 A\'. ; I'aync v. Parker, L. \i. 1 Ch. Ap. 327 ; property, and to whicli tlie ])Ic(lgor is made 
 
 12 .lur. N. S. 221, I,. .J J. a dereiidmit, is not open to demurrer on the 
 
 1 OshorTie v. l''orcnian, 2 Hare, C5G; 8 grouiiil that lie should have been joined as 
 
 .lur. .05; Ward t". Hasscit, 6 Hare, 17'J;see a plaintiff. Michigan State lianli y. G;ird- 
 
 also, upon tiic con-lriiction of this order, ner, 3 (jrav, 305. 
 
 Cox V. Uarnard, U Hare, 2r,3; Lloyd i'. * 1 Ve^.'Sen 101; 3 Sivanst. 141, S. C. 
 
 Smith, 13 Sim. 4.07; 7 .Jur. 400; Miller ?-. 6 gfory Kq I'l. § 221. 
 
 lliidillest'ine, 13 Sim. 407; 7 Jur. 504; c Franco i'. l''raiico, 3 Ves. 77; Bridget 
 
 Hecve V. Richer, 1 De (i & S. 024 ; 1 IJur. v. I lamer, 3 Y. & U. 72 ; Mav v. Sclhv, 1 Y, 
 
 000; Jones v. How, 7 Hare, 270; 14 Jur. & C. 235; 6 Jur. 52; Ilorsfey r. Ka"wcett, 
 
 145. 11 Heav.505; I'eaUe r. I.cdgur, 8 Hare, 313; 
 
 '^ Turner)'. Hind, 12 Sim. 414. H seems 4 l)e U. & S. 137 (which was the case of 
 
 doulitful whether the order applies to the executors); I'aynard i' W'oolley, 20 iSenv. 
 
 < H-c of a bill of foreclosure of freeholds de- 583 ; see, however, Chancellor )'. Morrcral't, 
 
 visiNJ in trust for sale. Wilton v. Jones, 2 11 Heav. 202; and see Hrid^et r liauics, 1 
 
 Y & C. 244. Coll. 72; Story K(i. I'l. § 213, and a discus- 
 
 •' A iiill in Frpiily, brought by a pledgee sion of this .sulijcct in tlie note; Cuiiiiing- 
 
 against a stranger to recover possesion of ham v. i'ell, 5 I'aige, 007. If a trustee lias
 
 224 
 
 OF r.VlJTIES TO A SUIT. 
 
 On. V. 5 I 
 
 Personal rep- 
 ri'scntative 
 mav sue, 
 witliout per- 
 sons beneti- 
 cially iuter- 
 estei. 
 
 Where execu- 
 tor in trust. 
 
 After great 
 lapse of time. 
 
 Assignees of 
 bankrupts. 
 
 \i]Hni such -A security, it was held that the ce.'^titi (pui truxts^ M'lio 
 hail never authorized or adopted the mortgage, were unnecessary 
 parties.^ It", however, the cestui que trusts have concurred in the 
 breach of trust, one trustee cannot sue his co-trustee, without 
 making them parties.- 
 
 And here it may be observed, that the personal representative 
 in all eases rei)rescnts the personal estate of the deceased, and is 
 entitled to sue for it in Equity as well as Law, without making the 
 residuary legatees, or any other persons interested in it, parties to 
 the suit.^ For this reason, wliere a woman by her will gave all her 
 personal estate to her bastard child, and made B. and C. her execu- 
 tors, and died ; and within a short time after the bastard died in- 
 testate ; upon a bill filed by the executor against a j)erson in whose 
 hands the jn-operty of the mother was, praying for an account, the 
 defendant demurred, because the representative of the bastard and 
 the Attorney-General were not parties ; and the demurrer was 
 oveiTuled, it being held that the executor was legally entitled to 
 the estate of his testatrix ; and though this may be in trust for 
 another, yet as the executor has the legal title, he can give a good 
 discharge to the defendant.* And in every case, an executor, 
 though a bare trustee, and though there be a residuary legatee, is 
 entitled to sue for the personal estate in Equity as well as at Law, 
 unless the cestui que trusts will oppose it.^ Where, however, there 
 has been a great lapse of time since the death of the testator, and 
 it seems doubtful who are the persons beneficially interested under 
 his will, the Court wall not, as of course, order payment to a per- 
 sonal rej^resentative cf funds recovered in the cause, but may 
 direct them to be paid into Court.® 
 
 tSo, also, assignees of bankrujits or insolvent debtors may either 
 maintain or defend suits relating to the estates vested in them as 
 such assignees, without the creditors for whom they are trustees 
 being made parties to the suit.'' Nor is it necessary, in such case, 
 that the bankrupt or insolvent, though interested in the residue. 
 
 fraudulently or improperly parted with 
 tru-t property, the cestui que trust may pro- 
 ceed against the trustee alone, to compel 
 satisfaction for the hrencli of trust, or ho 
 may at his election join the assignee also, 
 if he were a party to the fraud, or if he 
 seeks redres' against him. Haile\' v. Ingles, 
 2 Paige, 278; West v. Kandiili, 2 Miison, 
 197; Franco v. Franco, 3 Sumner's Ves. 
 75, note (a). 
 
 1 Allen V. Knight, 5 Hare, 272, 277; 10 
 Jur. 943. 
 
 2 Jesse V. Beimett, 6 De G. & G. 609; 2 
 Jur. N. S. 1125. 
 
 3 See Miles v. Davis, 19 Mis. (Bennett) 
 408. 
 
 4 Jones V. Goodcliild, 3 P. Wms. 33; see 
 also Peake v. Ledger, 8 Hare, 313; Smith 
 V. Boiden, 33 Beav. 262. 
 
 5 Jb. 48. 
 
 prn 
 
 Loy V. Duckett, 1 Cr. & Ph. 305; Ex 
 ,. ..ie Kam, 3 M. & C. 25; 1 Jur. 668; lie 
 Malonv, 1 J. & H. 249; Penninc;ton v. 
 Buckiev, 6 Hare, 451, 459; 11 Jur. 468; 
 Edwards v. Harvev, 9 Jur. N. S. 453; 11 
 W. K. 330, M. K. ; and see Adams v. Barry, 
 2 Coll. 285, where tlie Court required the 
 residuary legatee to be made a party. 
 1 Spragg V. Binkes, 5 Ves. 587.
 
 PERSONS HAYING CONCURRENT INTERESTS WITH PLAINTIFF. 
 
 225 
 
 should be before the Court,^ though, from a decision in Vernon's 
 Reports, it appears to have been formerly considered necessary in 
 suits by assignees to have the bankrupt before the Court.^ Where, 
 however, creditors, instead of seeking relief under the Commission, 
 proceed at Law against the bankrupt, the bankrupt may file a bill 
 of discovery in aid of his defence at Law, and for an injunction; 
 and where there are complicated accounts, he may pray to have 
 them taken, and to have the balance due to him from the defend- 
 ants set oif against the demand of the creditors, without making 
 his assignees parties,^ but lie cannot pray to have the balance paid 
 to him, because that belongs to his assignees. 
 
 The rule that, where the person by law entitled to represent the 
 personal estate is the party suing, legatees or other persons inter- 
 ested in the estate need not be parties, does not extend to the case 
 of a residuary legatee suing for his share of the residue ; in Avhich 
 case, as we have seen, it is generally necessary that all the residu- 
 ary legatees should be made parties to the suit, either as plaintiffs 
 or defendants, or by being served with notice of the decree,* 
 although wliere the number of the class is great, the Court has 
 sometimes dispensed with the necessity of making them all parties, 
 and allowed one to sue on behalf of the others.^ And where 
 legacies are charged upon real estates, it will not, in general, be 
 sufficient to bring the executors before the Court, for, except in 
 cases coming within the 30th Order of August, 1841, above men- 
 tioned, all the other legatees must be parties ; ® it seems, however, 
 that trustees of a real estate for payment of debts, have been 
 allowed before that order, to sue without bringing before the 
 Court the creditors or legatees for Avhom they are trustees ; ^ but 
 
 Ch. Y. § 1. 
 
 Residuary 
 legatees. 
 
 1 De Golls V. Ward, 3 P. Wins. 311, in 
 nolis ; Kaye v. Foslirooke, 8 Sim. 28 ; Uyson 
 tv Hornby, " De G., M. & G. 1. Similarly 
 the debti'r is not a necessiiry p:ir!}- to suits 
 bv or against trustees of u d(;ed duly reg- 
 istered uiiiler former bankrupt law: Fen- 
 ton V. Queen's Ferry Wire Company, W. 
 N. ( I80S) 296; 17 W. li. 155, V. C M. ; L. 
 R. 7 ]■:<[., 2«7. 
 
 2 Sliarpe v. Gnmon, 2 Yern. 32; 1 Kq. 
 On. Ab. 72; I'l. 7 S. «'. 
 
 8 Lowndc-s V. Tavlor, 1 Mad. 423. 
 
 ♦ 15 & IG Vic. c. bG, § 42, rr. 1, 8; and 
 Bee ji'int, cliap. VII. § 2, I'lvcctdlnys b\j 
 Service of Aotite of Iht Decree. 
 
 6 Harvey v. Harvey, 4 H.-av. 215, 220; 
 Bee hIso Smart v. liradstock, 7 Ucav. 6o0; 
 IJafeman r. .Margerison. Hare, 4Ui;, 49tt; 
 but see .Ioik-s r. Howe, 7 Han.-, 2t)7; 14 
 Jnr. 14.'»; see also Dcio.lv v. Higgins, U 
 Hare Apji. 32, jiarlii'ul irly the obs^ rva- 
 tions ot Sir (ieo. 'I'urner V. (J. lit p. W\ 
 Gould V. Have-, 19 Ala. 438. All the dis- 
 tributees are necessary parties to a bill 
 for distribution. Hawkins v. Oaig, 1 15. 
 Mon. 27 ; (Jsboriic v. Taylor, 12 Grattan 
 
 Where lega- 
 cies charged 
 on real estate. 
 
 Semble, trus- 
 tees for pa3'- 
 ment of debts 
 may sue with- 
 out creditors. 
 
 15 
 
 (Va.), 117; but see Moore v. Gleaton, 23 
 Geo. 142; Keeler v. Keeler, 3 Stockt. (N. 
 J.), 458. 
 
 « Morse v. Sadler, 1 Cox. 352 ; Hallett 
 V. Hallett, 2 Paige, 15; Todd v. Sterrett, 6 
 J.. J. .Miirsli. 432; llowlaiuU'. Fish, 1 Paige, 
 20. In this last case the Court remark: 
 " In Morse v. Sadler, 1 Cox, 352, the Mas- 
 ter of the l{oll> decided, th it every legatee, 
 whose legacy was clunged on the real es- 
 tate, must be a party to the bill It is true 
 that case was overruled by Chiincellor 
 Kiiii, ill Brown v. Kickefts, 3 .lohn. Ch. 
 553, where it was held that one legatee 
 might file a bill in favor of himself and all 
 others, who might choose to come in imder 
 the decree. But even then. Chancellor 
 Kent considers it necessary, tlnit the bill 
 should slate the fact thit it i-< filed in 
 behalf of the ])hiiiitiir and all others, &c. 
 The reason of the rule seems to be, that 
 the defendants may not be charged wiih a 
 double detence." 
 
 " Ld. Ked. 174; see, however, Harrison 
 V. Stewanlson, 2 Hare, 630; Thomas v. 
 Dunning, 5 De G. & S. 018.
 
 326 
 
 OF PARTIES TO A SUIT. 
 
 Ch. V. § 1. 
 
 One of sev- 
 eral cestui que 
 trusts may 
 roprosont the 
 others in a 
 suit lor exe- 
 cution of 
 trusts, the 
 others being 
 served with 
 tlie decree. 
 
 Appointees 
 under will of 
 feme covert. 
 
 Some may 
 sue for all. 
 
 Executors 
 must all join. 
 
 it is ni)pvchon(lc(l tlint, in such cases, the Court wouhl now gen- 
 erally allow the trustees, under the ninth rule above referred to, to 
 represent the creditors.^ 
 
 And now one of several cestui que trusts, under any deed or 
 instrument, may be a, plaintilF or defendant, as representative of 
 his class, in a suit for the execution of the trusts of the deed or 
 instrument, tlie others of the class being served with notice of the 
 decree,- but any cesttd que tmsts who have concurred in the breach 
 of trust must be parties to a suit to make a trustee liable for the 
 loss occasioned thereby.^ 
 
 Although, in ordinary cases, the executor represents the whole 
 personal estate, and no legatee need, be a party, the appointees 
 under the will of a feme covert are in a different situation, and 
 must be made parties ; ^ therefore, where the administrator Avith the 
 will annexed of a married woman, filed a bill, praying that the 
 defendants might i)ay over to him a sum of money, as to wliich a 
 testamentary appointment had been executed by the testatrix, by 
 virtue of a power in her marriage settlement, without making the 
 appointees parties, the case was ordered to stand over, with leave 
 for the plaintiff to amend by bringing the appointees before the 
 Court.^ It is apprehended, however, that the Court would not 
 now require the cestui que trusts to be parties in such a case.® 
 Where the appointees were very numerous, and the bill was filed 
 by some of them on behalf of themselves and the others, the Court 
 dispensed with the general rule which required them all to be par- 
 ties.'' It is to be observed that in CraJcer v. Parrott^ on a bill 
 filed by one of four children, who were appointees of their mother, 
 to set aside the appointment on account of the unfairness of the 
 distribution, it Avas held that all the other children Avho Avere ap- 
 pointees need not be parties, because they might go in before the 
 Master. 
 
 "Where there are more than one executor or administrator, they 
 must all be parties to the suit, though one of them be an infant.® 
 Whei-e, hoAvever, one executor of several has alone proved, he may 
 
 1 Jlorley v. Morley, 25 Beav. 253. In 
 Knight v." Pocock, 24 Beav. 136; 4 Jur. 
 N. S. 197, it was held that trustees did not 
 represent creditors who had not acceded 
 to the deed. 
 
 2 15 & 16 Vic. c. 86, § 42, rr. 4, 6, 
 M'Leod V. Annesley, 16 Beav. 600; Jones 
 t). James, 9 Hare App. 80; and .see post, 
 chap. Ill, § 2, 1'roceedinffs by Service of 
 Notice of the Decree. 
 
 8 Jesse V. Bennett, 6 De G., M. & G. 609 ; 
 2 Jur. N. S. 1125; AVilliams v. Alien, 29 
 Beav. 292. 
 
 * Story Eq. PI. § 204, and note. 
 
 5 Court r. JefTery, 1 S. & S. 105 ; but see 
 Owens V. Dickenson, anie,pp. 180, 187. 
 
 6 Musters v. AVright, 2 De G. & S. 777; 
 and see Sewcll v. Ashley, 3 De G., M. & 
 G. 933 ; lie Newbery, Allcroft v. Farnan, 
 10 AV. Ji. 378, V. C. K. 
 
 7 Manning v. Thesiger, 1 S. & S. 106; 
 Story Eq. PI. § 217. 
 
 8 2 Cha. Cu. 228. 
 
 '■> Offley V. Jenney, 3 Cha. Rep. 92; 
 \Vms. J'^xors. 1724; Cramer v. Morton, 2 
 Moll. 108. Rule 0, adopted in 15 & 16 
 Vic. c. 86, provides that "any executor, 
 administrator, or trustee may obtain a 
 decree against any legatee, next of kin, 
 or cestui que ir-usl, for the administration 
 of the estate, or the execution of the 
 trusts."
 
 PERSONS HAVIXG CONCURRENT INTERESTS WITH PLAINTIFF. 227 
 
 sue •without making the other executors parties, although they Ch. v. § i. 
 have not renounced.-^ And where a person devises that his execu- "^ 
 
 tors shall sell his land, anc> leaves two executors who renounce, but those who 
 and administration is granted to A., who brings a bill against the proved°need 
 heir to compel a sale, it seems the renouncing executors, in whom not. 
 the power of sale collateral to the executorship was vested, oiight All executors 
 not to be made parties." It is not, however, necessary that the co-plaintiffs- 
 executors or administrators should be all co-plaintifts ; for in 
 Equity it is sufficient that all parties interested in the subject of but must be 
 the suit should be before the Court, either as plaintiffs or defend- ^^^^ ^^*' 
 ants ; ^ and, therefore, one executor may sue without his co-execu- 
 tor joining, if the co-executor be made a defendant.* 
 
 The rule tliat all persons claiming concurrent interests with the Persons 
 plaintiff are necessary parties, equally applies whether the interest remainder or 
 be in possession, remainder, or reversion ; and upon this principle it reversion; 
 is held, that in all cases in which an estate is claimed by a person 
 deriving title under a settlement, made either by deed or will, it 
 is necessary to make all the persons claiming under such settle- 
 ment parties to the suit, doicn to the person entitled to the first 
 vested estate of inheritance, either in fee or in tail, inclusive.^ And 
 where A. was tenant for years, witli remainder to B. for life, with 
 remainder to C. in fee, and B. brought a bill against A. for an 
 injunction to restrain his committing waste, it was held that the 
 remainder-man, or the reversioner in fee, ought to be before the 
 Court.® It will be borne in mind, however, that where the prop 
 erty is vested in trustees under a deed or will, the trustees now 
 generally represent all the cestui que trusts.'' 
 
 It is not necessary, in such cases, to bring before the Court any 
 
 1 Davics f. Williams. 1 Sim. 5; Dyson V. Graham, 1 Paige, .384; sec Judson v. 
 
 Morris, 1 Hare, 413; Hinehart r. Kineliart, Gibbons, 5 Wend. 224. 
 
 2 McCartcr (N. ,1.), 144; Marsh v. Oliver, -^ Yates v. Compton, 2 P. Wms. 308. 
 
 1 Mc(:arter(X..I.), 202. It will be seen on 3 Wilkins r. Fry, 1 Mer. 244, 262. 
 
 referring to tlie report of tlic case of iJavies ■* Blount v. Burrow, 3 Bro. C. C. 90; see 
 
 r. Williams, sujira, that Sir .John Leach Dane v. Allen, 1 (Jreen Ch. 288. It ap- 
 
 V. C. is reported to have sai<l: "Where pears to have been at first doubted whether 
 
 one executor has alone proved, he may sue a co-executor refusing to join as co-plaintiff 
 
 in Equit}-, as well as at Law, without was entitled to his costs. 3 Bro. C C. 90. 
 
 naming the others as parties;" but in '' Finch f. Finch, 2 Ves. 492; Sohier t;. 
 
 (,'umniiiis r. Cummins, 3 .Jo. & Lat. 92, Williams, 1 Curtis 479; Story Eq. PI. § 
 
 Ld. St. Leonards, then Lord (jhanc(;ll'>r of 144, note. Where the first tenaiit in tail 
 
 Ireland, speakinp; of this case sail! :" This was a lunatic, the person entitled to the 
 
 may he do as to suits in ICquitj-, but cer- next estate of inheritance was held a nec- 
 
 tainly it is not tlie case as to actions at essarv jiarty. Singleton v. Hopkins, 1 
 
 Law." And see Ilensloe'a case, 3 Kep. Jur. ^. S. 1199. 
 
 300; Kilby r. Stanton, 2 Y. &.L77; and " By Lord King, in Mollineux »;. Powell, 
 
 see Wms. Exors. 1724, and cases there cited i I'. Wins. 2i;8, n.; hut see 1 Dick, 
 
 cited; Aild. font. 1050. But an executor, 197, 198, and Eden on Injunctions, 103; 
 
 though he has not proved the will, is a Story E(|. I'l. § 159. If will be borne in 
 
 necessary party defV-niiant to a suit to mind, however, that wher(; the iiropcrty is 
 
 carry the trustiof the wdl into execution. vested in trustees under the deed or will, 
 
 Ferguson v. Ferguson, 1 Hayes & .1 300; the trii'-tee now, in ICnghmd, generally 
 
 Yates f. Compton, 2 1*. W. 308; Oainer represents all the rp.i/Hi</«f /;•««/.'!. 16&1C 
 
 V. Morton, 2 Moll. 108; Thompson v. Vir. c. HO, § 42, r. 9. 
 
 7 16 & 16 Vic. c. 80, § 42, r. 9.
 
 228 
 
 OF TARTIES TO A SUIT. 
 
 Persons 
 entitled to 
 intermediate 
 estates. 
 
 Incumbran- 
 cers upon 
 i-'states tail 
 must be 
 parties. 
 
 So executory 
 .Ijvisees. 
 
 person out it led in reni.'Uiulor or reversion after the first vested 
 estate ol' inheritance, because sucli person is considered suilicient 
 to support all those who are in remainder behind him.^ And it 
 lias repeatedly been determined, that if there be .1 tenant for life, 
 remainder to his first son in tail, remainder over, and the tenant 
 for life is brought before the Court before he has issue, the contin- 
 gent remainder-men are barred.- 
 
 Although in cases of this description, the first person in exist- 
 ence who is entitled to a vested estate of inheritance is sufiicient to 
 represent all remainders behind him, yet it is necessary, that all j^er- 
 sons entitled to intermediate estates, prior to the first vested estate 
 of inheritance, should be before the Court; thus, where a marriage 
 settlement was made of lands on the husband for life, remainder to 
 the wife for life, with divers remainders over, and a bill was bi'ought 
 by the husband, in order to have the opinion of the Court whether 
 a certain parcel of land Avas not intended to be included in the settle- 
 ment, and the wife was not a pai-ty, the case was ordered to stand 
 over, in ox'der that she might be made a party, the Court being of 
 opinion, that if a decree should be made against the husband, it 
 would not bind her;^ and so, where a bill was brought l»y a son, 
 who Avas remainder-man in tail under a settlement, against his 
 father, who was tenant for life under the same settlement, to have 
 the title-deeds brought into Court that they might be forthcoming 
 for the benefit of all parties interested ; and objections were taken 
 for want of parties, one of which was, that a daughter of the defend- 
 ant, who was interested in a trust term for years, prior to the limi- 
 tation to the plaintiff, was not before the Court, Lord Plardwicke 
 held the objection good.* 
 
 Another objection in the same case was, because certain annui- 
 tants of the son, upon his reversion after the death of his father, 
 were not parties, and Lord Hardwicke held, that he could not 
 make the order jirayed until the annuitants were first heard, and 
 that consequently the objection must be allowed.^ From this it 
 would seem, that althougli a remainder-man in tail may maintain a 
 suit without bringing the persons entitled to subsequent remain- 
 ders before the Court, yet if he has chrn-ged or incumbered his 
 estate in remainder, the persons interested in such charge or 
 incumbrance must be parties; and it is held, that a person claim- 
 ing under a limitation by way of executory devise, not subject to 
 any preceding estate of inheritance by which it may be defeated, 
 
 1 Anon., 2 Eq. Ca. Ab. 166, PI. 8; Lloyd 
 V. Johnes, '.) Ves. 37, 55; I^a^le l'"ire Iiis. 
 Co. V. Camiiiet, 2 Edw. Cii. 127. 
 
 2 I'er Lord liede.sdale, in Gillard v. Hort, 
 1 Sell. & L. 40^; and >ee iilso, as to ten- 
 ants for life represenfin^j persons contin- 
 genll}- entitled m ruuiainder, in a suit as to 
 
 per-snnaltv. Fowler v. James, 1 C. P. Goop. 
 t. Cott. 200; 1 Phil. b03; and see K(jb- 
 erts V. Itoberts, 2 Phil. 534; 12 Jur. 148; 
 2 De G. & S. 29. 
 
 a Herrina v. Yen, 1 Atk. 290. 
 
 4 Pyncent v. Pyncent, 3 Aik. 571. 
 
 5 I'yucent V. Pyncent, 3 Atk. 571.
 
 PERSONS HAVIXG CONCURRENT INTERESTS WITH PLAINTIFF. 
 
 229 
 
 must be a party to a suit in which his rights are inA'olvetl ; ^ but 
 executory devisees not m esse, may be bound by a decree against 
 the first estate of inheritance. 
 
 Where the intermediate estate is contingent, and the person to 
 take is 7iot ascertained, it is sufficient to have before the Court tlie 
 trustees to support the contingent remainder, together with the 
 first person in esse entitled to the first vested estate of inheri- 
 tance.- Lord Hardwicke, in HojyMns v. Jlojj/ans,^ states the prac- 
 tice upon this point tluis : "If there are ever so many contingent 
 limitations of a trust, it is an established rule, that it is sufficient to 
 bring the trustees before the Court, together with him in whom 
 the first remainder of the inheritance is vested ; and they that may 
 come after Avill be bound by the decree, though not iti esse, unless 
 there be fraud or collusion between the trustees, and the first person 
 in whom the remainder of the inheritance is vested." Thus, in 
 Lord Cholmondeley v. Lord Clinton,'^ in which the estate which 
 was the subject of litigation Avas settled upon Baron Clinton for 
 life, and, after remainders to his cliildren (who were unborn) and 
 their heirs in tail, upon the person who should then be entitled to 
 claim as Baron Clinton in tail, with ultimate remainder to the 
 existing Lord Clinton in fee, it was objected that the person pre- 
 sum]«tively entitled to the barony, ought to have been a party; 
 but Sir William Grant, M. R., overruled the objection upon the 
 ground above stated. 
 
 If a person entitled to an interest prior in limitation to any estate 
 of inheritance before the Court, should be born pending the suit, 
 that person must be brought before the Court -by supi>lemental 
 bill;^ and if the first tenant in tail is plaintiff in a suit and dies 
 without issue before the termination of the suit, the next remain- 
 der-man in tail, although he claims by new limitation, and not 
 tlirough the first plaintiff as his issue, is entitled to continue the 
 suit of tlie former tenant in tail by supj>lemental bill, and to have 
 tlie benefit of the evidence and proceedings in the former suit ; ® 
 and 80 where a tenant in tail who is a defendant dies,'' or his 
 interest ceases by the birth of a tenant in tail prior in limitation,^ 
 tlie plaintitF is entitled to carry on the proceedings, in bringing the 
 person who has become the first tenant in tail before tlie Court. 
 
 In all tlie preceeding cases the rights of tlie several parties to the 
 subject-matter in litigation were consistent with each other, and 
 
 * 2 .1. & W. 1. 133. 
 
 C 1.(1. Hed. 174. 
 
 c I.lovd V. .lolitjcn, 9 Vcs. 58. 
 
 ' Cn-sswcll II. UiitiMnan. G W. R. 20G, 
 220, V. {]. K.; Refr. Lib. 1857, A. 424. 
 
 •* l'>;^remoiit i'. Tlioiiipsoii, L. H. 4 Cli. 
 Ap. 448, L. C. 
 
 Ch. V. 
 
 Where inter- 
 mediate 
 estate is con- 
 tingent, and 
 it.s taker un- 
 ascertained. 
 
 Per.'ons 
 entitled to 
 intermediate 
 estates, com- 
 ing into esse 
 pending suit. 
 
 1 Ld. Red. 174. 
 
 2 Lord Cholriiondelev v. Lord Clinton, 
 2 .T. ii;: \V. 1, 1.33: see Solder r. Wdliains, 
 1 (Jurti*, 471t; Noilin^- r. (ireeiifield, 7 I'aige, 
 544. 'rnistees to support contingent re- 
 miiiiidpr-t are now no longer necessary; 8 
 & U'Vic. c. lOG. § 8. 
 
 3 1 Atk. 5it0; but n» to the report of this 
 case, see 2 J. & W. 18, 192. 
 
 Persons 
 claiming 
 umh'r incon- 
 sistent titles.
 
 230 
 
 OF PARTIES TO A SUIT. 
 
 I'n. V. § 1. wiTc tlio vosiilt ofthosnine state of facts, so tlKit tlio same evidence 
 w lii(li would establish those facts would establish tlie rit^hts of all 
 the parties to luaintaiu the litigation; the rules, therefore, of 
 Equity require that all those parties so deriving their right of liti- 
 gation from the same facts, should, subject to the exceptions which 
 we have noticed, be brought before the Court, in order that such 
 their rights may be simultaneously disposed of. In cases, however, 
 where the claims of the several parties to the subject-matter of the 
 suit do not arise out of the same state of circumstances, but can 
 only be supported upon grounds which are inconsistent with each 
 other, so that, if the grounds upon which the plaintiff supports his 
 claim be correct, the case relied upon by the other parties claim- 
 ing the same thing cannot be siipported, then such other parties 
 need not be brought before the Court. And the reason of this 
 is obvious ; for if a plaintiiF resting his case upon a particular title 
 which is inconsistent Avith the title set up by the other claimants, 
 is able to establish the truth of his case by evidence, he will be en- 
 titled to a decree against the defendant whom he sues ; if he is not 
 in a situation to establish his case, his bill must of course be dis- 
 missed ; and the circumstance of his having brought other parties 
 claiming under a different title before the Court, Avould be of no 
 advantage to the defendant principally sued; because, if the plain- 
 tiff fails in his claim, the bill must be dismissed as against them as 
 well as against the principal defendant, and such dismissal can be 
 no bar to prevent the other parties themselves, from asserting their 
 claim against the defendant.-^ 
 
 In suits for specific performance, it is a general rule, that none 
 but parties to the contract are necessary parties to the suit ; ^ and 
 a mere stranger claiming under an adverse title should not be made 
 a party to such a suit,^ although a person claiming by virtue of an 
 
 sary parties, antecedent agreement is a proper party to a suit by a purchaser 
 for specific performance, and to have the right to the purchase- 
 money ascertained.'* Where, however, there are other persons so 
 
 In suits for 
 specific per- 
 formance, 
 only parties 
 to the con- 
 tract neces- 
 
 1 For application of this principle to 
 suits for tithes by impropriator or vicnr, 
 Williamson v. Lonsdale, Dan. Ex. 171; 
 9 Price, lb". S. C; Williams v. Price, 
 Dan. 13; 4 Price, 15G; Carte v. Ball, 3 
 Atk. 500; and Petch v. Ualton, Scacc. .Jan. 
 18iy, cited 1 .1. & W. .'ilS; Daws v. Benn, 
 ib. .ol3; Jac. 95: Bailev v. Woirall, Bunb. 
 115; Cook V. Blunt, 2"Sim. 417; VVinj; v. 
 Morrell, M'Cl. & Y. 625: Tootli ?•. Dunn 
 and Cliapter of Canterbury, 3 Sim. 49; 
 Pierson v. David, 1 Clarke (Iowa), 23. 
 
 2 'lasker v. Small. 3 M. & C. *i3, G9; 1 
 .lur. 936; Wood p. White, 4 M. & C. 460; 
 Robertson v. The (iresit Western Railway 
 Coinp:iny, 10 Sim. 314; Humphreys v. 
 Mollis, Sue. 73; Paterson v. Long, 5 Beav. 
 IfcC; Peacock v. Penson, 11 Beav. 355; 12 
 
 ,Tur. 951; Petre v. Duncombe, 7 Hare. 24; 
 De Hoghton v. Money, L. K. 2 Ch. Ap. 
 164, 170, L. J.I.; Bishop of Winchester v. 
 Mid Hants Railway Co.. L. R. 5 Kq. 17, V. 
 C. S. ; Ab^raman Iron Works Company v. 
 Wickens, L. R. 4 Ch. A p. 101, L. C. ; Fen- 
 wick V. Bulmaii, L. R. 9 Eq. 165, V. C. S. ; 
 see, however, Dakiiiff v.Whim[)cr, 26 Beav. 
 568; see Morgan v. Mor<ran,2 VVheJit. 290; 
 Lord V. Underdunck, 1 Sandf. Ch. 46; Hoo- 
 ver V. Donally, 3 Hen & M. 316. 
 
 8 Tasker v. Small, 3 M. & C. 63, 69; 1 
 Jur. 936; De Ho^ihton v. Money, L. R. 2 
 Ch. Ap. 164, 170, L. .I.J. But see Carter 
 V. .Mills, .30 Mi«. (9 .Jones) 432, cited iiifra. 
 
 * West Midland Rnilway Company v. 
 Ni.\on, 1 II. & M. 176; and see Chadwick 
 V. Maden, 9 Hare, 188.
 
 PEKSONS HAVING CONCURRENT INTERESTS WITH PLAINTIFF. 231 
 
 interested in the subject-matter of the contract as that their con- Ch. V . § i. 
 currence is necessary for the completion of the title, it is the duty 
 of the vendor to bring them forward, to assist in giving effect to 
 his contract ; ^ but, as plaintiffs, they have no right to sue ; and if 
 such persons should be infants, and it were attempted, by niaking 
 them co-plaintiffs with the vendor, to bind their rights by a decree, 
 the fact of their being so made parties would be a fotal objection 
 to the suit ; and whether the point was or was not raided by the 
 other parties the Court would refuse to pronounce a decree.^ It 
 would appear also, that, in some cases, where, subsequently to the 
 contract, another person has acquired an interest under tlie ven- 
 dor, with notice of the rights of the purchaser, the latter has, in a 
 suit for specific performance, been allowed to join such person with 
 the vendor as a defendant to the suit ; ^ and where the vendor has 
 parted with the posssession, he must join the lessee of the pur- 
 chaser as defendant to a suit for specific performance, and a dec- 
 laration of his lien for unpaid purchase-money.^ 
 
 Formerly it was the invariable practice of Courts of Equity to Heir of dev- 
 require the heir-at-law to be a party to a suit in all cases where gssary^Dart 
 the trusts of a will of real estate Avere sought to be executed, to suit relat- 
 Tliis practice arose from the peculiar principle adopted by Courts d"evised^° 
 of Equity in cases of wills relating to real estate ; namely, that they 
 would not caiTy into effect a will of real estate, until the due exe- 
 cution had been either admitted by the heir or proved against him. 
 For this purpose, it was necessary that the heir should be made an 
 adverse party. The case of an heir-at-law was, therefore, an ex- 
 ception to the rule above laid down, that persons claiming under 
 titles inconsistent with those of the plaintiff, need not be made 
 parties to the suit. This exception has now been in a great 
 measure abolished, for by the 31st Order of August, 1841,'' it is 
 provided, " that in suits to execute the trusts of a will, it shall not 
 be necessary to make the heir-at-law a party ; but the plaintiff shall 
 be at liberty to make him a party when he desires to have the will 
 established against him." Before this order, it was necessary in 
 
 1 Wood V. Wliite, 4 M. 460, 483; Chad- them injuriou'-lv by casting a cloud upon 
 wick V. Miiden, 9 Hiire, 188. his title. Carter w. Mills, 30 Mis. (9 Jones) 
 
 2 AV.Kwl V. White. 4 M. & C. 4G0, 483. 432. 
 
 See William" r. Leech, 28 Perm St. 89; * Bishop of Winchester v. Mid Hants 
 
 Bur^jer v. I'utter, 32 III. 66. It;\ilwny Company, L. U. 5 Eq. 17 V. C. 
 
 3 Spence t). HoKii, 1 Coll. 225; Colletti'. S. ; and see Attoriiev-General y Sitting- 
 Hover, 1 Coll. 227; but see Cults t>. Tliodev, bourne & .sheerne*s Itailwiiv Company, 35 
 13 Sim. 200; 6 .lur. 1027; dn<l 1 C..I1. 2i'2 Heav. 268, 271; I.. li. 1 'Va\. 030, '639; 
 n. ("), 223 n; see hIso I.^uIv v. Ilillas, 2 (Jnodlnrd v. Stotieliouse & Nailsworth 
 De <;. & J. 110; 4 Jur. N. S. 1166. In a I.'aiiway Compitny, \V. N. (1869) 07; 17 
 suit for the specific performance of a con- W. li 515, V. C. M.; Maiiiup v. Sionc- 
 tract to ronVHV land, a per-on not made a hou'-e & NaiNworth Uailwnv (.'onipany, 
 party, who claims a superior title to the W. N. (1869) 60; 17 W. K. 484, V. (.;. J. 
 land" in (picstin under the |iarty of whom '' Ord. Vlt. 1. This Onli-r has been 
 pcrfornuince i< sought, may come in nnd a'lopic.l in the IC(|uity Holes of tlic United 
 assert his rights; as ii decree might afl'ect Stales Supreme Court. Rule 40.
 
 232 
 
 OF PARTIES TO A SUIT. 
 
 Ch. V. §1. 
 
 And where 
 land given by 
 deed to pay 
 debts; 
 
 other cx- 
 
 amplej:. 
 
 Rights of heir 
 unaflected by 
 decree in his 
 absence. 
 
 Heir neces- 
 sary where 
 will sought 
 to be estab- 
 lished. 
 
 suits lor (lie adininistraliou of real assots under 3 & 4 Will. IV. 
 0. 1(14, that till' lu'ir-at-la\v, as well as the devisee, should be a 
 party ; ^ and where the suit was brought against the devisee, under 
 the Statute of Fraudulent Devises,- the heir-at-law Avas ii necessary 
 party.""* 
 
 Althouiili, however, the heir-at-law was a necessary party to suits 
 instituted for the puri)ose of making devised estates applicable to 
 the payment of debts, lie was not a necessary ])arty to suits insti- 
 tuted by creditors claiming under a deed whereby estates had 
 been conveyed to trustees to sell for payment of debts, unless- he 
 was entitled to the surplus of the money arising from the sale.* 
 
 Even before the last-mentioned Order, there were some cases in 
 which the Court would direct the execution of the trusts of a will, 
 where the heir-at-law was not a party; thus, where a trustee had 
 been dead several years, and freehold lands, subject to the trust, 
 had been quietly enjoyed under the will, a sale was decreed 
 without the heir being a party .^ So, where the heir-at-law was 
 abroad, or could not be found, or made def;xult at the hearing, the 
 ti'usts of a will have been executed in his absence, but without a 
 declaration that the will was well i^roved ; ^ and even upon some 
 occasions the Court has, upon due proof of the execution of the 
 will and of the sanity of the testator, declared the will well proved 
 in the absence of the heir." 
 
 As there is no provision in the Order ^ to make evidence of the 
 execution of the will, and the sanity of the testator, taken in the 
 absence of the heir-at-law, admissible against him or any one claim- 
 ing under him, the Court still continues unable, by decree in his 
 absence, to insure the title against his rights.^ As the Order pro- 
 vides for the execution of the trusts of a will in the absence of the 
 heir, and also gives liberty to make him a party, where it is sought 
 to haA'e the will established against him, it seems scarcely probable 
 that, under any circumstances, the old practice, of declaring a will 
 
 1 Brown V. WesUherhy, 10 Sim. 125; 
 now it is so no longer: Weeks v. Evans, 7 
 Sim. 546; IJriilges v. Ilinxman, 16 Sim. 
 71; Goodchild v. Terretr, 5 ISeav. 398; 
 Burch t'. Conev, 14 .lur. 1009, V. C K. B. 
 
 2 3 & 4 W. & M. c. 14. 
 
 3 Story Kq. PI. § 163. Where the real 
 estate of the deceased part}- is by statute 
 made personal as-^ets for the p:iyment of 
 debts, it is unnecessary to mnke the iieir 
 or devisee of the estate a part}- to the suit 
 for the administration of tlie assets. .Story 
 Eq. PI. § 163, and note; Ex p<trlt liuihilf, 
 1 .Mass. 240; Grignon v. Astor, 2 How. U. 
 S. 319, 338; but see Gladson v. Wliitncy, 
 9 Iowa, 267. wliere the contrary was held. 
 
 ■* To a bill to charge a legacy on land 
 of a married woman, she is a necessary 
 party. Lewis v. Darling, 16 Peters, 1. 
 
 5 Harris v. Inpledew, 3 P. "Wm^. 92, 94. 
 
 6 French v. ]5aron, 1 Dick. 138; 2 Atk. 
 120, S. C. ; Stokes i; Taylor, 1 Dick. 349; 
 Cator r. Butler, 2 Dick.' 438; Briiithwaite 
 V. Kobinson, ib. 439 n. ; Story Eq. I'l. § 87. 
 On a bill by an executor agitinst a devisee 
 of land charged with the payment of debts, 
 for an account of the tru^t fund, the cred- 
 itors are not indispensable parties to the 
 suit. Potter v. Gardner, 12 Wheat. 498. 
 
 7 Banister v. Way, 2 Dick. 599; vide 
 ace. ■\Viliiams v. Whinvates, 2 Bro. C. C. 
 399; Seton, 224 etseq.\\A. Red. 173. 
 
 8 Ord. VII. 1. 
 
 9 Ld. Red. 172. A will may now be 
 establislied in England against the heir in 
 the Probate Court; see 20 & 21 Vic. c. 77, 
 §§ 61, 02; Seton, 226; see post, chap, on 
 kvidence.
 
 PERSONS HAVING CONCUREENT INTERESTS WITH PLAINTIFF. 
 
 233 
 
 well proved in the absence of the heir will be continued.^ It was Ch- "V- § i-; 
 
 formerly the practice, where the heir-at-law could not be found, to ^ 
 
 make the Attorney-General a party to a bill for carrying the trusts 
 
 of a devise of real estates into execution, on the supposition that 
 
 the escheat is in the Crown, if the will set up by the bill should be Person 
 
 ' 1 T n 1 • 1 1 i_ entitled to 
 
 subject to impeachment. If any person should clann the escheat escheat. 
 against the Crown, that person may be a necessary party.'- 
 
 The rule which has been before noticed, that persons claiming Effect of 
 under titles which are inconsistent with that of the plaintiif, should •'p°ia1ntj'fl° 
 not be made parties to a suit, even though thev are in a situation having incon- 
 
 1 ' d? * sistent titles 
 
 to molest the defendant in the event of the j^laintiff being unsuc- 
 cessful in establishing his claim, is equally applicable to prohibit 
 their being made parties as co-plaintiifs or as defendants.^ Thus, 
 in the case of the Attorney- General y. Tarr ingto n,* ^yhel•e an in- 
 formation and bill Avas exhibited in the Exchequer by the King's 
 Attorney-General, and the Queen-dowager and her trustees as 
 plaintiffs, against the lessees of the Queen, of certain lands which 
 had been granted to her by the Crown for her jointure, in respect 
 of the breach of the covenants in their leases ; it was held that the 
 King and Queen-dowager could not join, because their interests 
 were several ; and so, in the case of JOord (Jholmondeley v. Lord 
 Clinton^ where a bill was filed by two persons, one claiming as 
 devisee, and the other as heir-at-law;' and the question was Devisee and 
 whether they could maintain a suit to redeem a mortgage, on the '^"'"''^'' '^^^" 
 allegation " that questions having arisen as to which of them was 
 entitled to the estate, they had agreed to divide the estate between 
 them," Sir Thomas Plumer M. K. strongly expressed his opinion 
 that tlie Court could not proceed on a bill so framed. In a subse- 
 quent case between the same parties, the title of the plaintiff was 
 stated in the same way as in the first, and Lord Eldon, though he 
 allowed the demurrer which was put in to the bill upon other 
 grounds, exi)ressed a vei-y strong opinion, that two i)ersons claim- 
 ing the same thing by different titles, but averring that it is in one 
 or tlie other of them, and each contending that it was in himself, 
 could not join in a suit as co-plaintiffs. His Lordship said, " that 
 the difficulty of maintaining a suit where there are two plaintiffs, 
 
 1 All the devisees nre held to be ncccs- flicting interests; Miles v. Durnford, 2 De 
 sarv parties to n bill to set aside a will ; the G., M. & G. 641 ; Carterr. Sanders, 2 Drew. 
 executor, unless lie lias refused to act, 248; Foulkes r. Davies, L. li. 7 Eq. 42 V. 
 bIi'hiM also l)e made a piiity. Vancleave C. G. 
 
 r. IJeiiin, 2 Dana, 1.05; sec 'Hunt ?'. Acre, < Ilnrdres, 219. 
 
 28 Ala. 580; Vaiiderpoel i'. Van Valkcn- ^ 2 .1. & \V. 1, 1.35; afTirmed, 4 Bli. 1; 
 
 burnh, 2 Scl.len (N. Y.), r.»0. So all the Suf,'d. Law, p. Gl, 74; sec aNo Fulhajri v. 
 
 legateet are indi«pens;ible parties in such M<("artliy, 1 H. L. Ciis. 70.'?; 12 .lur. 757. 
 
 n ca.se. McMaken v. McMaken, 18 Ala. C a bifl ciinnot be filed agninst the heirs 
 
 676. and devisees joinilv, for satisfnction of a 
 
 2 Ld. R^d. 172. debt of the deceiised. Schernierhoru ». 
 
 3 The f)l)jpctinn does not ajiply "here liarhjdt, I'aige, 28. 
 a sole plaintiff unites in himself two con-
 
 234 
 
 OF PARTIES TO A SUIT. 
 
 ('II. V. 5 1. 
 
 Settlor and 
 purchaser in 
 suit to avoid 
 a settlement 
 under the 
 27 Eliz. c. 4. 
 
 Plaintiff and 
 person liable 
 to account 
 to him. 
 
 Court can 
 now relieve, 
 notwith- 
 standing mis- 
 joinder. 
 
 A. and B., each assorting the title to be in him, is this, that if 
 tht' C\>nit (lecitles that A. is entitlecl, and the defendants do not 
 coniphiin, liow is B. as a co-plaintitt'to ap))eal from tliat decree?"^ 
 And in the recent case of /Saumcrez v. iSatonerez,- where tlie in- 
 terests of a father and liis chiklren who were joined as co-])laintifrs 
 in the suit were at variance one Avitli another ; Lord Cottenliam 
 said, that as the record was fi-amed, it Avould be quite irregukir to 
 make any adjudication concerning their conflicting interests, and 
 directed a new bill to be filed. 
 
 In a case before the same judge, when Master of the Rolls, 
 Avhei'e a bill had been filed by the settlor in a A^oluntary settle- 
 ment, for the purpose of avoiding the settlement, in which another 
 person claiming as a purchaser, under the 27 Eliz. c. 4, against the 
 parties entitled under the voluntary settlement, was joined as a 
 co-plaintiif ; his Honor held, that, as the settlement was of personal 
 property, it was not within the statute, and that, consequently, 
 the purchaser, not having the protection of the statute, could not 
 have a better title than the settlor from whom he purchased ; but 
 that, if he had shoAvn a good title in himself, he could have had no 
 relief in that suit, having associated himself as co-plaintiff with the 
 settlor ; it having been in several late cases decided that, under 
 such circumstances, no decree can be made, although the plaintiif 
 might, in a suit in which he was sole plaintiff", have been entitled 
 to relief^ Upon the same principle, it has been held, that a j^er- 
 son who is liable to account to the other plaintiffs cannot be joined 
 as co-plaintiff".* 
 
 It should be here observed, that the consequences of a misjoinder 
 of plaintiff"s, such as above considered, are no longer the same as 
 formerly, for then the bill would have been dismissed ; whereas 
 now, the Court is empowered to grant such relief as the circum- 
 stances of the case require, to direct such amendments as it shall 
 think fit, and to treat any of the plaintiff's as defendants.^ 
 
 1 Lord Cholmondeley v. Lord Clinton, 
 T. & K. 107, 115; but see Jopp v. Wood, 
 2 De G., J. & S. 323. 
 
 2 4 ^L & C. 336; see also Robertson v. 
 Southgate, 6 Hnre, 536; but see Griggs v. 
 Staplee, 2 De G. & S. 572; 13 Jur. 29, 
 which was a suit to set aside a settlement, 
 as a frauil on the marital right. Sir .1. L. 
 Knight Bruce V. C. there said that if the 
 ca=e had been proved he should probably 
 have relieved against the transaction, al- 
 though the wife was a co-plaintiff. See 2 
 De G. & S. 588. 
 
 3 Bill V. Cureton, 2 M. & K. 503; see 
 Newcomb v. Horton, 18 Wis. 566; Crocker 
 t". Craig, 46 Maine, 327; Fletcher v. 
 Holmes, 40 Maine, 361; Gates v. Boomer, 
 17 Wis. 455. 
 
 ■* Jacob V. Lucas, 1 Beav. 436, 443; 
 
 Griffith V. Vanheythuysen, 9 Hare, 85; 15 
 Jur. 421; but it would iip[)Ciir that the 
 objection does not appl}' to a sole ])laintiff 
 uniting in himself two conflicting inter- 
 ests. Miles V. Du:nford, 2 De G., M. & 
 G. 641; Carter v. Sanders, 2 Drew. 248; 
 Foul Ices V. Da vies, L. R. 7 Eq. 42, V. C. G. 
 5 15 & 16 Vic. c. 86, § 49. For cases of 
 misjoinder since the Act, see Clements v. 
 Bowes, 1 Drew. 684; Evans v. Coventry, 
 3 Drew. 75; 2 Jur. N. S. 557; 5 De (}., M. 
 & G. 911; Beeching v. Llovd, 3 Drew. 
 227; Williiims v. Salmond, 2 K. & J. 463; 
 
 2 Jur. N S. 251; Stupart v. Arrowsmith, 
 
 3 Stn. & G. 176; Barton v. Barton, 3 K. 
 & J. 512; 3 Jur. N. 8. 808; Carter v. San- 
 ders, 2 Drew, 248; Hallows v. Femie, 3 
 Ch. Ap. 467, L. C; itnd seeyj'wf (^bap. V. 
 § 4, Joindtr of Uninttresltd Farlies.
 
 PERSONS HAVESTG CONCUKRENT INTERESTS WITH PLAINTIFF. 
 
 235 
 
 The rule that persons claiming under different titles cannot be 
 joined as plaintiffs in the same suit, does not apply to cases where 
 their titles, though distinct, are not inconsistent with each other,^ 
 Thus, all the creditors of a deceased debtor, although they claim 
 under distinct titles, may be joined as co-plaintiffs in the same 
 suit, to administer the assets of the debtor,^ although it is not 
 necessary that they should be so joined, as one creditor may sue 
 for his debt against the personal estate, without bringing the other 
 creditors before the Court.^ The joining, however, of several 
 creditors in the same suit, although it might save the expense of 
 several suits by different creditors, might nevertheless, where the 
 creditors are numerous, be productive of great inconvenience and 
 delay by reason of the danger which Avould exist of continual 
 abatements. Courts of Equity have, therefore, adopted a practice, 
 which at the same time that it saves the expense of several suits 
 against the same estate, obviates the risk and inconvenience to be 
 apprehended from joining a great number of individuals as plain- 
 tiffs, by allowing one or more of such individuals to file a bill on 
 behalf of themselves and the other creditors upon the same estate, 
 for an account and application of the estate of a deceased debtor; 
 in which case, the decree being made applicable to all the creditoi's, 
 the others may come in under it and obtain satisfaction for their 
 demands as well as the plaintiffs in the suit ; and if they decline 
 to do so, they will be excluded the benefit of the decree, and 
 will yet be considered bound by acts done under its authority.* 
 It is matter rather of convenience than indulgence, to permit 
 such a suit by a few on behalf of all the creditors, as it tends 
 to prevent several suits by several creditors, whicli might be 
 highly inconvenient in the administration of assets, as well as 
 bur(4ensome to the fund to be administered ; for if a bill be 
 brought by a single creditor for his own debt, he may, as at Law, 
 gain a preference by the judgment in his favor over the other 
 creditors in the same degree, who niay not have used equal dili- 
 gence." 
 
 In suits by one creditor, on behalf of himself and the others, for 
 
 self nlone. Silloway v. Columbian Ins. 
 Co., 8 Grnv, 109; see Croinj)ton v. An- 
 tiionv. 13 Allen, 33, 30, 37; Seton, 117. 
 
 ■• i.d. IJed. 16G; see 48tli of the Equity 
 IJuk's (if tlic United States Courts. 
 
 ^' Ld. Ued. IGO; l{i<l).'ily v. Hond, 18 
 jM(1. 433; see Attorney-General v. Corn- 
 tliwaite, 2 Cox, 45; where it was admitted 
 nt the bar that where a siufjle creditor 
 file'i a bill for the payment of bis own dclit 
 oidy, tile Court does not din'ct n pciifral 
 account of the testator's debts, but only 
 nn account of the personal estiite and of 
 that iiarticular debt, which is onbred to 
 be paid in a course of administration; and 
 
 1 See Cheshire Iron Works v. Gay, 3 
 Gray, 531, 534, 535; Conro v. Port Henry 
 Iron Co. 12 IJarb. Cb. 27; Merchants' 
 Bank v. .Stevenson, 5 Allen, 402, 403. 
 
 2 See Cro-by v. VVicklifTe, 7 15. Mon. 
 120; Cheshire Iron Works v. Gay, 3 Grav, 
 634, 535. 
 
 8 Anon., 73 Atk. 672; Peacock v. Monk, 
 1 Ves. 127, 131. A creditor's bill, undt-r 
 Miifs. (ienl. Sts. c. 113, § 2, to reiich and 
 apply, in payment of u debt, any property 
 of a ilelitor in tliat Stale, that ciinnot be 
 come ut to be altacheil or taken on execu- 
 tion in a suit iit l.atv n^aitist such debtor, 
 may be brought by one creditor for him- 
 
 Cn. V. § 1. 
 
 Creditors of 
 deceased 
 may be co- 
 plaintiffs. 
 
 One creditor 
 may sue on 
 behalf of 
 himself and 
 others ; 
 
 but defendant 
 may have bill 
 dismissed 
 before decree, 
 on payment 
 of plaintiff's 
 debt and 
 costs.
 
 23 G 
 
 OF PARTIES TO A SUIT. 
 
 On. V. 5 1. 
 
 riaiiititV can- 
 not waive ac- 
 count apiinst 
 deceased ad- 
 nuiiistiator. 
 
 If personal 
 representa- 
 tive admits 
 assets, plain- 
 tift" entitled to 
 immediate 
 decree tor 
 payment. 
 
 One creditor 
 not entitled to 
 administra- 
 tion of realty, 
 unless he sue 
 on behalf 
 of all. 
 
 administration of the estate of a deceased debtor, tlie defendant 
 may, at any time before decree, liave the bill dismissed, on pay- 
 ment of the i)laintilf\s debt and all the costs of the suit.^ 
 
 In snits of this nature, the ])laintitf cannot waive an account 
 against the estate of a deceased administrator of the debtor.'- 
 
 If the debt of the plaintitf be. admitted or proved, and the 
 executor or administrator admits assets, the plaintiff is entitled at 
 the hearing to an immediate decree for payment, and not a mere 
 decree for an account ; ^ but an admis:?ion by the executor that he 
 has paid the legacies given by the testator's will, is not an admis- 
 sion of assets for the payment of the plaintiif 's debt, so as to entitle 
 him to such an immediate decree.* 
 
 One creditor may also sue, where the demand is against the real 
 as Avell as the personal assets ; ^ but although one creditor may file 
 a bill on his own behalf alone, for administration of the personal 
 estate, he cannot have a decree for administration of the real estate, 
 unless he sue on behalf of himself and all the other creditors." 
 
 all debts of a liit;lier or equal nature may 
 be paid by the executor, and allo\vt>d him 
 in his discliarf^e. See Gray v. Cliiswell, 9 
 Ves. 123; Story Eq. PI.' §§ 99-102; 1 
 Storv Kq- Jur. §§ 546-550; Brooks v. 
 Eeynolds, 1 Bro. 0. C (Perkins's ed.) 183, 
 note (2), ISO, note (5), and ca^es cited; 
 P:ixton V. Douglas, 8 Sumner's V'es. 520; 
 Thompson v. Brown, 4 John. Ch. 619; 
 Shephard v. Guernsey, 9 Paige, 337; Ram 
 on Assets, c. 21, § 1, p. 292; Rush v. 
 Higgs, 4 Sumner's Ves. 638, note {n), and 
 cases citeil; Hillett v. Ilalleit, 2 Paige. 15; 
 Lloyd V. Loaring. 6 Sumner's Ves. 773, 
 not'e(fi); We-t r. Riind:ill, 2 Mason, 181; 
 Lucas V. Bank of Uaiien, 2 Stewart, 280; 
 New London Bank v. Lee, 11 Conn. 112; 
 Ballentine v. Beall, 3 Scam. 206; Coe v. 
 Beckwith, 31 Bnrb. (N. Y.) 339; Hazen v. 
 Dulling, 1 Green Cli. 133. But single 
 creditor suits are much out of use. Seton, 
 117. 
 
 1 Pemberton v. Pophnm, 1 Bear. 316; 
 2 Jur. 1009; Holden v. Kvnaston, 2 Be:iv. 
 204; Manton ?'. Roe, 14" Sim 353; posf, 
 Cliap. XIX., § 1, Bismissiiifj Bills. As to 
 costs, see cases above referred to, and 
 Penny v. Beavan, 7 Hare, 133; 12 Jur. 
 936. 
 
 2 VVadeson v. Rudge, 1 C. P. Coop. t. 
 Cott, 369; but see Symes v. Glynn, nnd 
 Pea-e r. Cheesborough, cited Seton, 115. 
 
 3 Woodgale i: Piel.l, 2 Hare, 211; 6 
 Jur. 871; see also Owens ?'. Dickinson, C. 
 & v. 48, 56; 4 .lur. 1151; Fie'd v. Titinus, 
 1 Sim. N. S. 218; 15 Jur. 121. For form 
 of decree for payment, see Seton, 115, 
 No. 3. 
 
 ■* Sava;:e v. Lane, 8 Hare, 32; Field i'. 
 Titmus, 1 Sim. N. S. 218; 15 Jur. 121; 
 Huttou t'. Ro-siter, 7 De G., M. & G. 9. 
 
 5 I,ei<:h V. Thomas, 2 Ves. S. 312, 313. 
 
 6 Bedford v. Leigh, 2 Dick. 707; Uny 
 V. Selbv, 1 Y. & C. C. C. 235; 6 Jur. 52; 
 
 Blair V. Onnond, 1 De G. & S. 428; 11 
 Jur. 665; Ponsford v. Hartley. 2 J. & II. 
 736; Seton, 117; .Johnson v. Compton, 4 
 Sim. 47. See form of contingent prayer, 
 in a bid b}' one creditor, Tomlin v. Tom- 
 lin, 1 Hare, 236. In such cases leave to 
 amend will generally be given at the 
 hearing; see cases above cited. After 
 decree in a single creditor's suit, an ac- 
 count was taken of the real estate; the 
 bill being taken as a bill on beha-lf of all 
 tlie creditors; Woods i. Sowerbv, 14 W. 
 R. 9, V. U. W. ; see Story Kq. PI. § 161, 
 note. Although one incumbrancer cannot 
 sue without ni;iking other incumbrancers 
 parties, yet it has been held that this is 
 cured by a decree directing an account to 
 be taken of all the mortgages and incum- 
 brances art'ecting the estate. See Vin. 
 Ab. tit. Piirty (B.) en. 51. And in 'Mar- 
 tin V. Martin, Lord Hardwicke said, that 
 on a bill for a sale for the satisfaction of a 
 bond creditor, not only where it was on 
 beliair of himself and others, but even 
 when the bill was for the satisfaction of 
 his own particular debt, the constant 
 course of the Court was to direct an ac- 
 count of all the bond debts of the testator 
 or intestate, with liberty to come for a 
 satisfaction. See Seton, 85. It seems, 
 however, upon more recent authorities, 
 that a sini;k', bond creditor cannot have 
 any decree at all against the real estate. 
 See Bedford. V. Leii;h, 2 Dick. 707; John- 
 son V. Coni|)ton, 4 Sim. 47. Where a bill 
 has been fib'd l)y a single bond creditor to 
 establish his c'aim against the real estate 
 of his ileceased debtor, the Court has per- 
 mitted it to be aniiMided by making it a 
 bill "on behalf of hinist-lf and of the 
 other specidty creditors." Johnson v. 
 Compton, tihi supra. Where a judgnient 
 creditor hies a bill to obtnin aid in enforc- 
 ing the payment of his judgment at Law,
 
 PERSONS HAYING CONCURRENT INTERESTS WITH PLAINTIFF. 
 
 237 
 
 Again in the case of creditors under a trust deed for payment 
 of debts, a few have been permitted to sue on behalf of themselves 
 and the other creditors named in the deed, for the execution of 
 the trusts, although one creditor could not, in that case, have sued 
 for his single demand without bringing the other creditors before 
 the Court.i 
 
 And where the trust fund was to be distributed amongst the 
 joint and separate creditors of the firm, a bill of this description 
 was permitted by a separate creditor only, on behalf of himself 
 and the other joint and separate creditors." 
 
 In suits for marshalling assets, simple-contract creditors must be 
 joined as plaintiffs, as well as creditors by specialty ; for, upon a 
 bill by specialty creditors only, the decree Avould be merely for the 
 payment of the debts out of the personal estate, and, if that should 
 not prove sufficient for the purpose, for the sale and application of 
 the real estate. The right to call for such an arrangement of the 
 property as will throw those who have debts payable out of both 
 descriptions of estate upon the real estate, in order that the per- 
 sonalty may be left clear for those whose demands are only pay- 
 able out of the personal estate, belongs to the simple-contract 
 creditors, who have an equity either to compel the payment of the 
 specialty debts out of the real estate, or else to stand in the place 
 of the specialty creditors, as against the real estate, for so much of 
 the personal estate as they shall exhaust. It is proper, therefore, 
 in bills of this nature, to file them in the names of a specialty 
 
 Ch. Y. § 1. 
 
 so separate 
 creditor on 
 behalf ofjoint 
 and separate 
 creditors. 
 
 In suits to 
 marshal as- 
 sets, creditor 
 by simple 
 contract 
 should sue 
 with creditor 
 by specialty. 
 
 it is no ground of demurrer that other 
 creditors, not in equal deforce, are not 
 made jjarties to tlie bill. U av v KrMgaw, 
 1 (J. K. Green (N. J.), 213, 2"lG, 21"; Ed- 
 gell V. ti:iywo'i, 3 Atk. 357; see Clark-on 
 V. Uepey.sier, 3 I'ai;;e, 320; I'armelee v. 
 Egan, 7 I'nige, 610; Grosvenor v. Allen, 
 9 Paige, 74; Kandiam v. Campbell, 10 
 Paige, 51)8. 
 
 1 Corry v. Trist, Ld. Red. 167; Jlurphy 
 r. .lacksoii, 5 .lones Kq. (N. C.) 11; si-e, 
 however, Harrison f. .Stewardson, 2 Hare, 
 530, where Sir .1. \Vi;,'ram V. <,'. deculed, 
 thiit twenty creditors iuter.'sted in a veal 
 estiite were not so large a number as that 
 the Court would, on I lie grr>uiid of iiicon- 
 veni<-nce alone, allow a few of them to 
 represent the others, and dis(ieMS') with 
 Buch others ns parlies, in n suit to recovfr 
 the eHtate auninst the whole b'i<lv of creil- 
 it'irs. See St'.ry Kq. I'l. §§ 150, 207; 
 B^iinbridgi' v. IJurto'n. 2 Heav. 53U; Johii- 
 flMii V Caiidge, 31 Miiiie. 28; Uryiint v. 
 Rus-iell, 23 I'jck. 008; Steven-on v. Aus- 
 tin, 3 .Met. 474. In case of an a-signnient 
 for the bcni-tit of creditor'', all the credi- 
 tor* ^li'iiihl l)(! joined in a bill to compel a 
 di'-lribution of ih<! fund; but one cre'litor 
 alone mn_v m:iiiilnin a bill for a violation 
 of the trust injurious to hin.SL'lf separately. 
 
 Dimmock v. Bixby, 20 Pick. 368. When 
 creditors claim tinder a deed of trust for 
 the payment ot debt<, they need not make 
 as parties to their bill, tlmse who are in a 
 pfpsierior class to themselves, but they 
 must make, t\s parties, idl who are in tluir 
 own cla«^s. I'atton v. Hencini, 6 Ired. Eq. 
 204. No decree for the di^tribution of a 
 fund in Court can be miide. nn'il idl per- 
 sons interesred are made parties. l)e La 
 Vergiie v. Evertson, 1 I'aige, IM ; (Jreene 
 r. Sisson, 2 Curtis C. C. 171. All I he dis- 
 tributees are necessary parties to a bill lor 
 distribu'ion. Hawkins r. CraiiX, 1 H. Mnn. 
 27. All person^ interested in the trust 
 estate ought to be joined in a suit for its 
 adniinistratiiin. I'",l:iin v. Garrard, 2r)(;eor- 
 piM, ',.-,7; lli.jh i: Worlev, 32 Ala. 709; 
 D'Wolf r. 1) Wolf, 4 U. i. 450; (ioiild v. 
 Haves, lU Ahi. 438; Kecler v. Keeler, 3 
 Stockt. (N. .1.) 458. 
 
 Creditors of a testator may intervene 
 by petition, and be madi- parties to a suit 
 by the legatees and devi-ees, brought for 
 the purp'pse of falsifying the accounts of 
 the ex'-cntor. Smith v. Britton, 2 1'. & 
 II. (Va.) 124. 
 
 2 WeUl V. Uonham, 2 S. & S. 91; and 
 see liichiirdson r. Hastings, 7 Ueav. 323; 
 Smart v. ISraditock, 7 IJeuv. 500.
 
 238 
 
 OF PARTIES TO A SUIT. 
 
 Cn. V. § 1. 
 
 Other oases 
 in wliich one 
 niav sue on 
 belialf of 
 himself and 
 other 
 legatees ; 
 
 Testamentary- 
 apjiointees of 
 a married 
 woman. 
 
 Joint pro- 
 prietors of a 
 trading 
 undertaking. 
 
 Shareholders 
 of unregis- 
 tered com- 
 pany. 
 
 creditor :iiul of a creditor by simple contract, on behalf of them- 
 selves and of all others the specialty and simple-contract creditors.^ 
 
 By analogy to the case of creditors, a legatee is permitted to 
 sue on behalf of himself and the other legatees ; because, as he 
 might sue for his own legacy only, a suit by one, on behalf of all 
 the legatees, has the same tendency to prevent inconvenience and 
 expense, as a suit by one creditor on behalf of all creditors of the 
 same fund.- For the same reason, Avhere it has been sought to 
 apply personal estate amongst next of kin, or amongst i)erson8 
 claiming as legatees under a general description, and it may be 
 uncertain who are the persons answering that description, bills 
 have been admitted by one claimant on behalf of himself and of 
 otliers equally interested.^ 
 
 So, also, in the case of appointees under the Avill of a married 
 woman, ntade in pui'suance of a power, where they were very 
 numerous, a bill was permitted by some in behalf of all.* 
 
 The right of a few persons to rejn-esent the class is not con- 
 fined to the instances of creditors and legatees ; ^ and the necessity 
 of the case has induced the Court, especially of late years, fre- 
 quently to depart from the general rule in cases where a strict 
 adherence to it would probably amount to a denial of justice, and 
 to allow a few persons to sue on behalf of great numbers having 
 the same interest ; ° thus, some of the proprietors of a trading 
 undertaking, where the shares had. been split or divided into 800, 
 were permitted to maintain a suit on behalf of themselves and 
 others, for an account against some of their copartners, Avithout 
 bringing the whole before the Court,'' "because it would have 
 been impracticable to make them all parties by name, and there 
 would be continual abatement by death and otherwise, and no 
 coming at justice, if they were to be made parties;" and in case 
 of a trade partnership of more than twenty-five persons formed 
 
 1 By the 32 & 33 Vic. c. 46, it is enacted 
 that it) the administration of the estate of 
 any person ilying on or after the 1st Jnn., 
 1870, no rlebt shall be entitled to prefer- 
 ence merely because it is a specialty debt, 
 but all the creditors shall be treated as 
 standing in equal degree, and be paid ac- 
 cordingly out of tlie assets, whether legal 
 or equitable. 
 
 2 Ld. lied. 167; Story Eq. PI. § 104; 
 Brown v. Ricketts, 3 John. Ch. 5.^3; Fish 
 V. Howland, 1 Paige, 20, 23; Kettle v. 
 Crary, 1 Paige, 417, note; Ilallett v. llal- 
 lett, 2 Paige, 20, 21. 
 
 8 Ld. Red. 1C8; Smith v. Leatbart, 20 
 L. J. Ch. 202, V. C. K. B.; Story Eq. PI. 
 § 105; see now 16 & 16 Vic. c. 86, § 42, 
 r. 1. 
 
 4 Manning v. Thesiger, 1 S. & S. 106. 
 
 5 See per Ld. Eldon, in Lloyd v. Loar- 
 ing, 6 Ves. 779. 
 
 6 Ld. Red. 109; Story Eq. PI. § 94 et 
 seq., and the cases cited in notes; West v. 
 Randall, 2 Mason, 192-196; Wendell v. 
 Van Rensselaer, 1 John. Ch. 349; Hallett 
 V. Ilallett, 2 Paige, 18-20; Cullen v. Duke 
 of Queensberry, 1 Bro. C. C. (Perkins's 
 ed.) 101, and iMr. Belt's notes; Rloflats v. 
 Farquharson, 2 id. 338, note (1); IJoyd v. 
 Loaring, 6 Sumner's Ves. 773, note (o), 
 and cases cited; Willis v. Henderson, 4 
 Scam. 20; Mann v. Butler, 2 Barb. Ch. 
 302; Per Foster J. in Williston v. Michi- 
 gan Southern & Northern R.R. Co., 13 
 Allen, 406; Peabody v. Flint, 6 Allen, 52; 
 Mason v. York & (Cumberland li.R. Co., 
 52 Maine, 107-109; March v. Eastern R R. 
 Co., 40 N. H. 506 ; Smith v Swomestedt, 
 16 How. U. S. 288; 48th of the Equity 
 Rules of the United States Courts. 
 
 7 Chancey v. May, Prec. Ch. 592.
 
 PERSONS HAVIZiTG COXCUERENT INTERESTS WITH PLAINTIFF. 
 
 239 
 
 before the 7 & 8 Vic. c. 110, and registered under § 58 of that Act, 
 but not otherwise registered, some members were allowed to sue 
 on behalf of themselves and other members to restrain a nuisance ; ^ 
 and so, Avhere all the inhabitants of a parish had rights of com- 
 mon under a trust, a suit by one, on behalf of himself and the 
 other inhabitants, was admitted ; ^ and a freeholder and copyholder 
 of a manor may sue on behalf of himself and all other the free- 
 hold and copyhold tenants, to have their rights of common ascer- 
 tained, notwithstanding the rights of "each freeholder are separate 
 and distinct from those of the copyholders ; ^ but although one 
 copyholder may sue on behalf of himself and the other copy- 
 holders to have the rights of common ascertained, he cannot sue 
 on behalf of himself alone for that purpose.^ So, also, one 
 owner of lands in a township has been permitted to sue on behalf 
 of hunself and the others to establish a contributory -modus for all 
 the lands there.^ Upon the same principle, a bill was allowed by 
 the captain of a privateer on behalf of himself and of all other the 
 m:;riners and persons who had signed certain articles of agreement 
 with the owners, for an account and distribution of the prizes 
 made by the ship.® And in Lloyd v. Loaring^ Lord Eldon ex- 
 pressed his opinion, that some of the members of a lodge of Free- 
 masons, or of one of the inns of court, of any other numerous body of 
 persons, might sustain a suit on behalf of themselves and the others, 
 for the delivery up of a chattel in which they were all interested. 
 
 The great increase in the number of Joint-Stock Companies, and 
 trading associations, in Avhich large classes of persons are jointly 
 interested, lias had the effect, in modern times,- of extending the 
 practice, which allows a few persons to sue in Equity on behalf 
 of themselves and others similarly interested.* In the case of 
 Wahcorth v. Jlolt,"^ the bill was filed by the plaintiffs on behalf 
 of themselves and all otliers, the shareholders and partners of the 
 banking company, called the Imperial Bank of P^nghmd, except 
 those who were made defendants. It did not in terms pray a 
 dissolution, or a final winding up of the affairs of the company, 
 
 6 Chaytor v. Trinity College, 3 Anst. 
 841 ; Story I'^q. Jur. § 121, and cases cited. 
 
 fi Good V. Blewitt, l.'i Yes. 3U7. In that 
 case ilie liiil was orij^iiiiilly filL'd by the 
 ciii)tain in his own ri<;ht. hiit was allowed 
 to be amended bv introdncinp the words, 
 " on behair of himself," &c. 13 Ves. 398; 
 Bce West V. Handall, 2 Mason, 193, 194; 
 Storv Kq. I'l. § 08. 
 
 7 Ves. 773, 779; see Sumner's ed. nolo 
 
 («)■ 
 
 8 ISeatfy v. Kurtz. 2 Peters, 50G; Smuh 
 V. Swomcstedt, IG How. U. S. 288; Whit- 
 ney V. Mnvn, 15 111. 2r>l; Putnam V. 
 Sweet, 1 Ciiand. (Wis.) 280; Morgan v. 
 New York and Albany li.ll. Co., 10 Paige, 
 290. 
 
 » 4 M. & C. 035. 
 
 Ch. V. § 1. 
 
 Inhabitants 
 of a parish. 
 
 Tenants of 
 manor. 
 
 Owners of 
 
 lands to 
 establish a 
 7iiodus. 
 
 Crew of a 
 ship for prize 
 money. 
 
 Extension of 
 practice in 
 modern 
 times. 
 
 1 Wormsley v. Merritt, L. li. 4 Eq. G95, 
 V. C. M. 
 
 2 Blackham v. The Wanlen and Society 
 of Sutton Coldfield, 1 Ch. Ca. 2<i9. It 
 has been doubted whether the Attorney- 
 General ought not to have been a pari}- to 
 that suit. See Ld. Ked. 149; and sec 
 Attorney-JJeneral r. Heelis, 2 S. & S. G7; 
 but see Attorney-General v. RIoses, 2 Mad. 
 294. 
 
 8 Smith f. Earl IJrownlow, L. Ti. 9 Eq. 
 241, M. It.; spo Wiirrictk r. Queen's (,'ol- 
 lege, Oxford, W. N. (1870) M. P..; 18 W. 
 K. 719, M. P..; L. R. 10 Eq. lO.-i; Petts v. 
 Thomt.son. W. N. (1870), 203; 18 W. H. 
 1099, M. i:. 
 
 •• Philli|)-> I'. Hudson, I.. P. 2 Ch. Ap. 
 243, L. C.
 
 240 
 
 OF rAUTlES TO A SUIT. 
 
 Cii. V. S 1. 
 
 General 
 principles in 
 eases of" part- 
 nerships. 
 
 but i( prnyed tlie nssist:uK'i' of tlio Court in tlie ro;ilization of the 
 assets of the coiiiiKiiiy, :ni(l in tlio i)nyinent of its debts, and that 
 for that purjiose a receiver niiolit be a|)))ointed, and autliorized 
 to sue for calls unpaid and other debts due to the company in the 
 name of the registered officer, Avho was one of the defendants. 
 To this bill a demurrer was put in, u])on the argument of Avhich 
 the {\\o most important objections to the bill were, 1st, That it 
 was not the practice of the Court to interfere between ])artncrs, 
 except upon a bill praying a dissolution ; and 2dly, That all the 
 parties interested in the concern were necessary parties to the bill. 
 Lord Cottenham overruled the demurrer, and in his judgment ob- 
 served,^ "The result, therefore, of these two rules, the one binding 
 the Court to withhold its jurisdiction, except upon bills ])raying a 
 dissolution, and the other requiring that all the partners should be 
 parties to a bill praying it, would be, that the door of this Court 
 would be shut in all cases in which the partners or shareholders are 
 too numerous to be made parties ; which, in the present state of the 
 transactions of mankind, would be an absolute denial of justice to 
 a large portion of the subjects of the realm, in some of the most 
 important of their affiiirs. This result is quite sufficient to show 
 that sucli cannot be the law; for, as I have said upon other occa- 
 sions,^ I think it the duty of this Court to adapt' its 2:)ractice and 
 course of proceeding to the existing state of society, and not by too 
 strict an adherence to forms and rules, established under different 
 circumstances, to decline to administer justice, and to enforce 
 rights for which there is no other remedy. This has always been 
 the principle of this Court, though not at all times sufficiently at- 
 tended to. It is the ground upon which the Court has, in many 
 cases, dispensed with the presence of parties who Avould, according 
 to the general practice, have been necessary parties." ^ 
 
 In Mozley v. Alston^* Lord Cottenham said, that this form of 
 suit is "subject to this restriction : that the relief which is prayed 
 must be one in which the parties whom the plaintiff professes to 
 represent, have all of them an interest identical with his own ; for 
 if what is asked may by possibility be injurious to any of them, 
 those parties must be made defendants ; because each and every of 
 them may have a case to make, adverse to the interests of the par- 
 
 1 4 M. & C. 635. 
 . 2 See Mare v. Malacbv, 1 M. & C. 559; 
 Taylor v. Salmon, 4 M. '& C. 134. 141. 
 
 a" Storv Kq. PI. §§ 76, 96, 115, 115 a, 
 115 b; West V. HaiKlall, 2 Mason. 181; 
 Colt t: Le-nier, 9 Cowen, 320, ."5:50; Decks 
 V. Stanhope, 14 Sim. 57; Collyer Parin. 
 (Perkins's ed.) 361, in note; TavLir v. 
 Sa'nion, 4 M. & (J. 134, 141. Represen- 
 tatives of a deeeased partner should he 
 nia'le parlies to a bill to dissolve a p-irt- 
 Der;hip, and the bill may be amended for 
 
 that purpose. Buchard v. Boyce, 21 
 Geo. 6. 
 
 4 1 Phil. 790, 798; 11 Jur. 315; Moseley 
 V Crcs-ev's Compmv, I.. R. 1 Eq. 405; 
 12 Jur. N. S. 40, V. 0. W.; gee also Milli- 
 pan V. Miteliell, 3 M. & C. 72; 1 .lur. 888; 
 llichens V. Coiif^reve, 4 Rnss. 662, 574; 
 Gordnn v. Pym, 3 Hare, 223, 227; Ap- 
 perly v. Puge, 1 Pliil. 779,785; 11 .Jur. 
 271; Ricliardson v. Hastings, 7 Beav. 323, 
 326; 11 Beav. 17; 8 .lur. 72; Becching v. 
 Lloyd, 3 Drew. 227 ; Moor v. Veazie, 32 
 Maine, 355.
 
 PERSONS HAVING CONCURRENT INTERESTS WITH PLAINTIFF. 
 
 241 
 
 Parliament. 
 
 ties suing. If, indeed, they are so numerous that it is impossible Ch. V . § i. 
 to make them all defendants, that is a state of things for which no '' ' 
 
 remedy has yet been provided." If, however, such persons are so 
 numerous that it is impossible to make them parties, it is appre- 
 hended that, according to the present practice, the Court will, in 
 such cases, peimit the suit to proceed, upon one or several of such 
 parties having interests not identical with the plaintiff, or of each 
 class of them, if there are several classes, being made defendant to 
 represent the others; unless indeed the object of the suit is to 
 have the partnership or company dissolved.^ 
 
 The fact of a company being incorporated by Act of Parliament "Where com- 
 does not ajipear necessarily to prevent individual members of the j^or^ig^'^by' 
 corporation suins: on behalf of themselves and the other members Act of 
 of the company. In I^'oss v. Harbottle,^ Sir J. Wigram V . C. ob- 
 served, " corporations of this kind are in truth little more than 
 private partnerships ; and in cases which may easily be suggested, 
 it would l>e too much to hold, that a society of i)rivate persons 
 associated together in undertakings, which, though certainly bene- 
 ficial to the public, are nevertheless matters of pi'ivate property, 
 are to be deprived of their civil rights, inter se, because, in order 
 to make their common objects more attainable, the Crown or the 
 legislature may have conferred upon them the benefit of a corpor- 
 ate character. If a case should arise of injury to a corporation by 
 some of its members, for which no adequate remedy remained, ex- 
 cept that of a suit by individual corporators in their private char- 
 acters, and asking in such a character the protection of those rights 
 to which in their corporate cai)acity they were entitled ; I cannot 
 but think that the principle so forcibly laid down by Lord Cotten- 
 ham in Wcdworth v. Jlolt,'^ and other cases, would apply, and the 
 
 1 Richardson v. Larpent, 2 Y. & C. C. 
 C. 607, 514; 7 Jiir. O'Jl; Pare v. Clef,'f?. 
 2'J Beav. 68'J, 002; 7 Jur. N S. 1130; 
 Bromlev v. Williams, 32 lieav. 177; 
 9 .Jur. "X. S. 240; lloole i'. (Jreat West- 
 ern Hailwiiv (.'onii)anv, L. K. 3 Cli. Ap. 
 202, 273, l>."JJ.; Craiiier v. IJinl, J-. K. 6 
 Eq. 143, 14H; I'ickerintj v. Williani>, 15 
 \V. K. 21K, V. ('. S.; see iiowever, Car- 
 lisle V. South Eastern liailwav Co., 1 
 M'N. & G. 089, 099; 14 Jur. 635; I'aw- 
 cett V. Lawrie, 1 Dr. & S. 192, 203; as 
 to making the Corporation a ileCeiKlant 
 in its corporate ctiaracler, .'^ee liiifishaw 
 V. Kiictern Union liaihvav (>>., 7 Hare, 
 114; 13 .lur. 602; 2 M'N." & G. 389; 14 
 Jur. 491. 
 
 2 2 Hare, 491; see also Preston v. (Jrand 
 Colher Uoik Co., 11 Sim. 327, 344; S. C 
 nmii. PrextfjM v. (inyoii, 6 .Fur. 140; Hiig- 
 ahaw f. Ka^tiTii I'nion Hallway Co., and 
 Carlisle v. .Simtli ICastern Hail way Co., 
 ubi supra; (iraliam v. Itirkenhaad Knil- 
 way Co., 2 M'N. & (i. 140, 150; 14 Jur. 
 494; Colmun v. Eastern Counties Railway 
 
 VOL. I. 
 
 Co., 10 Beav. 1, 12; 11 Jur. 74; Salomons 
 V. Lainff, 12 Beav. 339; 14 Jur. 279; Era- 
 ser V. AVhalley, 2 H. & M. 10; l^ast Pant 
 Du Co. V. Merrv weather, 10 .hir. N. S. 
 1231; 13 W. R. 310, V. C. W.;2 H. & M. 
 254; Moselev v. Cresseys Conipanv, L- K. 
 1 Eq. 405: "12 Jur. N. 8.40, V."C. W.; 
 lloole V. Great Western Railwav (.'oni- 
 pany, L. K. 3 Ch. Ap. 202, L. .1.1. ; Bloxaui 
 r. Alttropoli'aii Railwiiy Co., E. R. 3 Ch. 
 Ap. 337, L. C. ; Atwool r. Merrvweath- 
 er, L. R. 5 E<|. 404, n. (3), V.C. W.; 
 Clinch V. Einancinl Corporation, E. R. 5 
 E((. 450, V. C. W. ; adirined, E. K. 4 Ch. 
 Ap. 117, E. C. 6c E. J.I ; Cramer v. Bird; 
 E. i;. li Kii 143. M. R.; Kern^if^haii >: Wil- 
 lii.ms, E. i;. E(|. 22S, M. R; Salisl.urv 
 I'. Melropolitan Hailwav Company, W . N, 
 (1809), 52, W.N. (1870), 70; 18 W. R. 
 4H4, V. C. J. ; iO., W. N. ( 1870), 74, E. J. 
 (;.; ib. 182, V. C. J.; 18 W. R. 974, V. C. 
 J. ; Sweny v. Smith, E. R. 7 Eq. 324, M. 
 R. 
 
 8 4 M. &. C. 636. 
 
 16
 
 242 
 
 OF TARTIES TO A SUIT. 
 
 Cn. V. 5 1. 
 
 Where the 
 relief prayed 
 is not bene- 
 ficial to all; 
 
 as where suit 
 is ni)t neces- 
 sarily advan- 
 tageous 
 to all ; 
 
 or where 
 claim is not 
 necessarily 
 reasonable ' 
 with regard 
 to all. 
 
 claims of justice "would be found supcnor to any difficulties arising 
 out o\' technical rules, res]iecting the mode in which corporations 
 are required to sue."^ In the case last referred to, the Vice- 
 Chancellor allowed a dcmiirrer, on the ground that upon the case 
 as stated in the hill, there was nothing to prevent the company 
 from obtaining redress in res])ect of the matters complained of in 
 its corporate character, and tliat, therefore, the ])laintifls could not 
 sue in a form of ])leading which assumed the practical dissolution 
 of the corporation.'^ 
 
 It is generally necessary, in order to enable a plaintiff to sue on 
 behalf of himself and others who stand in the same relation with 
 him to the subject of the suit, that it should ap])ear that the relief 
 sought by him is beneficial to those whom he undertakes to repre- 
 sent.* Where it does not appear that all the persons intended to 
 be represented are necessarily interested in obtaining the relief 
 sought, such a suit cannot be maintained ; * and a plaintiff cannot, 
 in one portion of a bill, sue on behalf of himself and all the other 
 members of a company, and by another portion seek to establish 
 a demand against the company.^ Where three of the subscribers 
 to a loan of money to a foreign State filed a bill on behalf of 
 themselves and all other subscribers to that loan, to rescind the 
 contracts of subscription, and to have the subscription moneys 
 returned, it was held, that the plaintiffs were not -entitled, in that 
 case, to represent all the other subscribers, because it did not 
 necessarily follow that every subscriber should, like them, wish to 
 retire from the speculation, and every individual must, in that re- 
 spect, judge for himself.^ And upon the same principle, one of the 
 inhabitants of a district, who claims a right to be served with 
 water by a public company, cannot file a bill on behalf of himself 
 and the other inhabitants, to compel that company to sup])ly water 
 
 or and Company of Copper Miners, 2 Phil. 
 740, 749; 12 Jur. 1059; Yettes v. Norfolk 
 Railway Co., 3 De G. & S. 293; 13 Jur. 
 249. 
 
 s'oray v. Chaplin, 2 S. & S. 267, 272; 
 Attorney-General i'. Heelis, 2 S. & S. 67, 
 75; Colmnn v. Eastern Counties Kailway 
 Company, 10 Beav. 1, 13; 11 Jur. 74"; 
 Carlisle r. South Eastern KaiiwHV Com- 
 l)any, 1 M'N. & G. 689, 698; 14 Jur. 535; 
 Wuflock V. Jenkins, 14 Ueav. 628; Wil- 
 'liams V. Salmond, 2 K. & J. 463; 2 Jur. 
 N. S. 251 ; Moseley v. Cresseys Company, 
 L. R. 1 Eq. 405; 12 Jur. N. S. 46, V. C. W. 
 
 4 Van Sandau v. Moore, 1 Russ. 441, 
 465; Lovell v. Andrew, 15 Sim. 581, 584; 
 11 Jur. 485; I'.ainbtidge v. Burton, 2 
 Beav. 536; Thomas v. llobler, 4 De G., F. 
 & J. 199; 8 Jur. N. S. 125. 
 
 5 Thomas v. Hobler, 4 De G., F. & J. 
 199; 8 Jur. N. S. 125. 
 
 c Jonfs V. Garcia Del Rio, T. & R. 297, 
 300. 
 
 1 One stockholder of a manufacturing 
 corporation cannot alone maintain a bill 
 in Ef|uity to compel tlie execution of a 
 trust, by persons who have taken a con- 
 veyance of the company property intrust 
 to pay its delits, because he stands in the 
 same right with all the other stockholders, 
 who have a common interest with him in 
 enforcing the trust, and all of whom 
 should be made parties, if not too numer- 
 ous, or, if too numerous, the bill should be 
 brought by some in behalf of all, so that 
 the rights of sill may be duly sidjudicated 
 in the iinal decree. Heath v. VAUs, 12 
 Cush. 601; Allen v. Curtis, 26 Conn. 456. 
 AVhere the plaintiff sued f n behalf of 
 himself and otliers, it was held, that the 
 defendant, after answering to the merits 
 of the bill, could not object that the plain- 
 tiff had no right to bring his bill in that 
 form. Messervey v. Barelli, 2 Hill, (Jh. 
 567; see ante, pp. 26, 144, notes. 
 
 2 See also Mozley v. Alston, 1 I'hil. 
 790, 797 ; 11 Jur. 315'; Lord v. The Govern-
 
 PERSONS HAVING CONCURRENT INTERESTS WITH PLAINTIFF. 
 
 243 
 
 to the district upon particular terms; because, what might be rea- 
 sonable with respect to one, might not be so Avith regard to the 
 others.^ This form of suit cannot be adopted where each of the 
 class on behalf of whom it is instituted has a separate demand in 
 Equity ; - and, therefore, a suit by a shareholder in a joint-stock 
 company, on behalf of himself and the other shareholders, seeking 
 relief from the shares, and the return of the deposits, on the 
 ground of fraud or misrepresentation in the prospectus, cannot be. 
 maintained ; for the case of each person who has been deceived is 
 peculiar to himself, and must depend upon its own circumstances.^ 
 Neither can this form of suit be adopted where the act complained 
 of is voidable and capable of confirmation by the members of the 
 comjjany, nor where it is a mere matter of internal regulation.* 
 Where, however, the object sought is such that a suit of this na- 
 ture may be instituted, it may be maintained, although a majority 
 of the class on behalf of whom it is instituted disapprove of it.^ 
 
 Where tlie object of the suit is the dissolution of a partnership, 
 all the partners must, it would seem, be parties to the suit, and a 
 suit by one partner on behalf of himself and others, cannot be 
 maintained.® In cases of joint-stock companies, the difficulties 
 attending a suit for winding up their affairs have led to the intro- 
 duction of a special mode of so doing.'' 
 
 Where the object of the suit is to restrain the commission of 
 acts which are ultra vires, or such that they cannot be confirmed 
 by the members of a corporation, any one member may sue on be- 
 half of himself and tlie other members to restrain them ; ^ but it is 
 
 Ch. v. § 1. 
 
 Not appli- 
 cable in suits 
 lor dissolu- 
 tion of part- 
 nership. 
 
 Winding up 
 of companies, 
 25 & 2tJ Vic. 
 c. 89, Pt. IV. 
 
 Suits to re- 
 •strain acta 
 %tUra vires. 
 
 1 Weale v. West Middlesex Waterworks, 
 1 J. & W. 358, 370; see Beaumont r. Mere- 
 dith, 3 V. & B. 181 ; Story Kq. I'l. §§ 120, 
 123, 12.5. 
 
 2 Jones V. Garcia Del Rio. T. & R. 207, 
 300; Blnin v. Agar, 1 .Sim. 37, 43; 2 Sim. 
 289; Croskev v. Tiie Bank of Wales, 4 
 (JilT. 314; y'.Iur. N. S. 595; Hallows v. 
 Fernie, L. ){. 3 Ch. A[i. 407, I>. (J.; Tur- 
 quand v. Mmshall, L. \l. K<\. 112, M. It. 
 
 3 (;ro«key /•. The Bank of W'ak-, 4 (iin". 
 314; 9 .Iur."N. S. 5'j5; Hallows t'. Fernie, 
 L. K. 3 (Jh. A p. 4G7, L. C. 
 
 •• Fo.ss r. Harhottle, 2 Mare, 461 ; Moz- 
 ley V. Alston, 1 I'liil. 7;H); 11 Jnr. 315; 
 Lord V. (Jovc-rnor and Company of ( Vippor 
 Miners, 2 I'liil. 74<i; 12 .lur. I'i5!i; Vetts f. 
 Norfolk Bailwav (Company, 3 l)e (',. Ik S. 
 293; 13 .lur. 249; Browne r. The Mon- 
 moiillishire Kailway and ('anal (^omiianv, 
 13 Beav. 32; Stevens r. Sotilli Devon K'ail- 
 wny Company, 9 Hare, ■'il3; Ma<:d<MiL'all 
 r. .lersey Im|ierial Hotel Company, 2 H. & 
 M. 621- ; Clinch r. I'iiiancial Curponilion, 
 L. R. 5 Kq. 451, 482, V. C. \V., aflirmed 
 L. K. 4 Ch. Ap. 117, L. (J. & L. .J.I.; 
 Lambert v. Northern Railway of Buenos 
 Ayres, 18 W. 1{. IKO, V. (;. k * For ex- 
 ceptional circumstances under which such 
 
 a hill was permitted, see Atwool v. Merry- 
 weather, L. R 5 Eq. 4'J4 n. (3), V. C. W. 
 
 •> Bromley v. Smith, 1 .Sim. 8; Small v. 
 Attwood, Younge, 407, 450; and see Wil- 
 liam V. Salmond, 2 K. & J. 403; 2 Jur. 
 M. S. 251; Kernaidian v. Williams, L. R. 
 e Kq. 228, M. R. 
 
 c Lonfj V. Yonge, 2 Sim. 369, 385; Beau- 
 mont r. Meredith, 3 V. & B. ISO; Abra- 
 ham r. Hannav, 13 Sim. 581; Deeks v. 
 Stanhope, 14 Sim. 57; 8 .lur. 349; Wilson 
 V. Staiihoi)e, 2 Coll. 029; 10 .Jur. 421 ; Rich- 
 ardson r. Larpent, 2 Y. & C. C. C. 607; 7 
 Jnr. 691 ; Richardson v. Hastings, 7 Beav. 
 301; 11 Beav. 17; « Jur. 72; Van Sandau 
 r. Moore, 1 Buss. 441, 456; (Joopor v. 
 Webb, 15 Sim. 454, 46.?; on ajipeal, 11 
 .lur. 443; Apperlv r. Page, 1 I'liil. 779, 
 7H5; 11 Beav. 271"; Harvey i-. IJignold, 8 
 Beav. 343, 345. But see "Limlley I'artn., 
 917, 1029; Cockburn v. Thompson, 16 
 Ves. 321, 325. 
 
 7 The Companies Act, 1832 (25 & 26 
 Vic. c. ^!t), I'art IV. 
 
 ** ll'idgkinson i'. 'i'lie National Live 
 Stock InHnrance(Jiimpany, 26 Beav. 473; 6 
 Jur. N. S.478;4 De O. & .1. 422; 5 Jur. N. 
 S. 969; Kyde ti. Kastern Bengal Railway 
 Company,"36 Beav. 10; Blo.xam r. Metro-
 
 244 
 
 OF PARTIES TO A SUIT. 
 
 § 1. 
 
 Plaint itV lias 
 dominion 
 ovor the suit 
 till dec rot- 
 but not niter. 
 
 Semble, dis- 
 missal of bill 
 a bar to 
 another suit. 
 
 Plaintiff must 
 personally 
 have a good 
 cause of suit. 
 
 not ncccssavv lie sliould a»lo])t that form of suit, aiul lio may sue 
 in his own namc.^ 
 
 In suits of this nature, the phiintilV, as he acts upon liis own 
 mere motion, and at his own expense, retains (as in other cases) 
 the ahsohito dominion of the suit until decree, and may dismiss 
 tlie bill at his ])leasure; after decree, however, he cannot by his 
 conduct deprive other ])ersons of the same class of the benefit of 
 the decree, if they think fit to ]>rosecute it.'^ 
 
 One of the objections Avhich has been sugg-osted to suits being 
 framed in this manner is, that if the bill is dismissed with costs, 
 other members of the ])artnership or company may still file another 
 bill for the same object; but in Darker v. Walters,^ Lord Lang- 
 dale M. R. said, that wdiere a company had authorized some of its 
 members to enter into obligations for it, and they then came to 
 the Court for relief against third parties, in the name and for the 
 benefit of all, and the Court dismissed the suit, his impression Avas, 
 that the Court would not allow other members to prosecute an- 
 other suit for the same object. 
 
 In adopting this form of suit, care must be taken in selecting 
 the plaintifl'; for as, on the one hand, a plaintiff", who has a right 
 to complain of an act done to a numerous society of Avhich he is a 
 member, is entitled effectually to sue on behalf of himself and all 
 others similarly interested, though no other may Avish to sue ; so, 
 although there are a hundred who wish to institute a suit and are 
 entitled to sue, still, if they sue by a plaintiff' only, who has per- 
 sonally precluded himself from suing, the suit cannot proceed.^ 
 A plaintiff thus suing must be a bona fide shareholder, and sue 
 bona -fide for the benefit of the comj^any; therefore, w^here a 
 
 politan Railway Company, L. R. 3 Ch. 
 Ap. 337, L. C. ; Atwoul v. Merrvweather, 
 L. R. 5 Eq. 404, n. (3), V. C. W''. ;(:iinch 
 «. Financial d rporation, L. R. 5 Ecj. 450, 
 V. C. \\.\ iiffirmed, L. R. 4 Ch. Ap. 117, 
 L. C. <& L. J.I.; Keniiighan v. Williams, 
 L. R. G Eq. 228, M. R.; Gray v. Lewis, L. 
 R. 8 Eq. o26, V. C M. 
 
 1 Hoole w Great Western Railwaj' 
 Company, L. R. 3 Ch. Ap. 262, L. .1.1. 
 
 2 See i)(iii. Chap. XIX., Dismissinr/ Bills, 
 Handford v. tStorie, 2 S. & S. I'JG; York 
 V. White, 10 .Jur. 168, M. R.; Armstion<; 
 V. Storer, !i Beav. 277; see al>o Brown v. 
 Lake, 2 (.'oil. 620 ; .lohnson v. Hammersley, 
 24 Beav. 4'j8; Whittington v. Edwards, 7 
 W. K. 72, L. C; liichley v. Alsop, 7 Jur. 
 N. S. 1181; 9 W. R. 649, M. R.; IlubOell 
 V. Warren, 8 Allen, 173, 177; Updike r. 
 Dovle, 7 R. I. 446, 402; Collins v. Tavlor, 
 3 Green Ch. 103. But in Atlas Bank v. 
 Nahant BMtik, 2.'3 Pick. 480, 492, Shaw, C. 
 J. said: "The plaintiffs having once in- 
 stituted the proceedings as a statute 
 remedy for themselves and others, tlicj- 
 
 go on afterwards for the benefit of all 
 ])Mrties concerned, and the oriirinal plain- 
 tiff's have no power to discontinue any 
 more than a petitioning creditor could 
 discontinue the proceedings under a com- 
 mission of bankruptcy." And now it is 
 eniictcd by statute in Massachusetts that 
 after a suit in Equity to enforce the liability 
 of stockholders or officers of manufactur- 
 ing corporations, shall have been com- 
 menced, it shall not be competent for the 
 plaintiff to dismiss the same without order 
 of Court, and such notice to other credit- 
 ors as the (Jonrt may deem reasonable 
 under the circumstances. St. 1862, c. 218, 
 §8. 
 
 8 8 Beav. 07 ; 9 ,Iur. 73. 
 
 4 Per L. J. Knight Bruce, Burt v. The 
 National Life Assurance Association, 4 
 I)e G. & .J. 158, 174; llubbidl v Warren, 
 8 Allen, 173, 177. See as to reipiiring se- 
 curity for costs from a plaintiff in such a 
 suit who is insolvent, Tredwell v. Bvrch, 
 1 y. &c. Ex. 470.
 
 PERSONS HAVING CONCURRENT INTERESTS WITH PLAINTIFF. 
 
 245 
 
 director in another comi^any took shares for the purjiose of filing 
 a bill, and was indemnified by such company, the bill was dis- 
 missed.^ 
 
 In all cases of suits for the protection of property pending litiga- 
 tion, and in all cases in the nature of waste, one person may sue 
 on behalf of himself and of all persons having the same interest.^ 
 
 In all cases, where one or a few individuals of a large number, 
 institute a suit on behalf of themselves and the others, they must 
 80 describe themselves in the bill ; otherwise a demurrer or plea for 
 want of parties will lie.^ Thus, where a part of a ship's crew ap- 
 pointed two of their number to be agents, and a bill was filed by 
 such agents in their own name, and not on behalf of themselves 
 and the others, a demurrer was allowed for not having made the 
 whole crew parties ; * and where a bill was filed by three partners 
 in a numerous trading company, against the members of the com- 
 mittee for managing the trading concerns of the company, it was 
 dismissed, because it was not filed by the plaintiffs " on behalf of 
 themselves and the other partners, not members of the committee."^ 
 And the Court is bound to ascertain, by strict proof, that the par- 
 ties by whom the bill is filed have the interests which they say 
 they have.^ 
 
 The Court will generally at the hearing allow a bill, which has 
 originally Ik'Cu filed by one individual of a numerous class in his 
 own right, to be amended, so as to make such individual sue on 
 behalf of himself, and the rest of the class.'' 
 
 Ch. v. § 1. 
 
 Suits for the 
 protection of 
 property, 
 pending liti- 
 gation, or to • 
 restrain 
 ■waste. 
 
 One or more 
 suing for 
 themselves 
 and others, 
 must be so 
 described. 
 
 Plaintiff ma]^ 
 anninl if not 
 so described. 
 
 1 Forrest v. Manchester, Siieffield and 
 Lincolnshire liaihvay Company, 30 IJeav. 
 40; 7 .Jur. N. S. -i'J;ilj. 887; 4"De G. & J. 
 126; see also, Colman v. Kastern Counties 
 K:iil\viiy Company, 10 Beav. 1; 11 .lur. 
 74; nioxiim v. Metropolitan Railway 
 Company, L. R. 3 Cli. An. 337, L. ('.; 
 Salisbury v. Metropolitan Hallway Com- 
 pany, W. N. (1869) 5-2, V. C. .1. 
 
 ^'l5 & 16 Vic. c. 86, § 42, r. 5; and see 
 Ackroyd v. liriggs, 14 W. K. 25, V. C. S. 
 
 8 Miirch r. Husteni li.H. Co., 40 N. II. 
 56G. Ill a bill in K(|iiity brought by an 
 administrator of an insolvent est;itc, to 
 obtain a reconveyance of land alleged to 
 Lave been conveyed by the intestate, with- 
 out consideration, to delViiud his creditrirs, 
 it muRt be alleged in the bill that the suit 
 is instituted for the benefit of all the cred- 
 itors of the estate. (Jrncker r. Craig, -16 
 Maine, 327; Fletcher v. Holmes, 40 iliiine, 
 364. 
 
 * Leich V. Thomas, 2 Ves. 312. 
 
 6 Baldwin v. Lawrence, 2 S. & S. 18; 
 and 8ce Douglass v. Ilorsfall, 2 S. & S. 
 184. 
 
 « Clay V. KufT-^rd, 8 Hare, 281, 288; 14 
 
 Jur. 803; and see.Smith r. Leathhart,20L. 
 .1. Cli. 202, V. C. K. B. A suit instituted 
 by a [ilaintitf having only a nominal int.'r- 
 est on hehiilf of a body of sliareholders, 
 not for the benefit of the plaintitT, but for 
 improjjer purposes, at the instii:ation of 
 anotiier person, who imlemuifies the plain- 
 tilf :ig linst the costs of the suit, will be 
 treated as an imposition on the Court, 
 and the bill will be ordered to be taken 
 off the fde. liobson v. Do'lds, L. 11. 8 Eq. 
 301; see Seaton «. Grant, L. K. 2 Ch. Ap. 
 459. 
 
 " Lloyd V. Loaring; see also IVIilligan v. 
 Mitchell. 1 .M. & C. 43.'J; (iwatkiu r. Camp- 
 bell, 1 Jur. N. S 131, V. C. \V.; Ueece 
 Hiver Silver Mining Company, L. R. 7 
 F,(i. 347, M. H.; and post, on Amending 
 n'lls. If a bill is brought in behalf of the 
 |>laintilf and such othirs having a like in- 
 terest as may come in to iirosecute the 
 suit, aiicl no others come in, the plaintiff 
 has the control of the suit for himself 
 alone, and, in order to maintain his bill, 
 he must show tiiMt he is himself entitled 
 to eijuitiible relief. Ilubbell f. Warren, 8 
 Allen, 173.
 
 ?4l? 
 
 OF PARTIES TO A SUIT. 
 
 Defendants 
 
 iuteresteJ, 
 
 or consequcn 
 tiallv. 
 
 in. . s - Suction II. — Of Necessary Parties to a /Suit, iti respect of their 
 interest in resisti/iy the Demands of the J^lainti^f} 
 
 A person may be affected by the demands oi' the ])lnintiff in a 
 suit, either ininie(liately or eonsequentially.'" Wliere an indivi(hial 
 is in the actual enjoyment of the subject-matter, or has an interest 
 in it, either in possession or expectancy, which is likely either to 
 be defeated or diminished by the plaintiff's claims, in such cases 
 immediately, li<^ l^^^s an immediate interest in resisting the demand, and all per- 
 sons who have such innnediate interests are necessary jjarties to 
 the suit ; but there may be other persons who, though not imme- 
 diately interested in resisting the plaintiff's demands, are yet liable 
 to be affected by them consequentially, because the success of the 
 plaintiff against the defendants who are immediately interested, 
 may give those defendants a right to proceed against them, for the 
 purpose of compelling them to make compensation, either in the 
 whole or in part, for the loss sustained. Those persons, therefore, 
 as being consequentially liable to be affected by the suit, must fre- 
 quently also be parties to it. The question, therefore, of who are 
 necessary parties to a suit in respect to their interest in resisting 
 the plaintiff's demands, resolves itself into two ; namely. Who are 
 necessary parties, _^rs^, in respect of their immediate interest? and 
 secondli/, in respect of their consequential interest? 
 
 The reader's attention will be first directed to the question, who 
 are necessary parties to a suit, in respect of their immediate interest 
 in resisting the plaintiff's demand. And here it is to be observed, 
 that where parties are spoken of as having an interest in the ques- 
 tion, it is not intended to confine the definition to those only who 
 are beneficially interested, but it is to be considered as extending 
 to all persons who have any estate, either legal or equitable, in the 
 subject-matter, whether such estate be beneficial to themselves or 
 not.« 
 
 Who are 
 necessary 
 because of 
 immediate 
 interests; 
 
 1 See ante, notes to pp. 190, 191, and par- 
 ticularly Equity Kule 22 of the United 
 States Courts (juoted on the latter page. 
 By Kquity Rule 48, of the same Court, it 
 is provided that, " in all eases, where it 
 shall appear to the Court that persons who 
 might otherwise be deemed necessary 
 or proper parties to the suit cannot be 
 made parties by reason of their being out 
 of the jurisdiction of the Court, or incapa- 
 ble otherwise of being made parties, or 
 because their joinder wouM oust the juris- 
 diction of the Court, as to the parties be- 
 fore the Court, the Court may, in their 
 di.scretion, proceed in the cause without 
 making such persons parties; and in such 
 cases the decree shall be without prejudice 
 to the rights of the absent parties." 
 
 2 A town must be a part_v to a bill in 
 Equity to restrain its treasurer from pay- 
 ing out money voted at legal meetings of 
 
 the town for illegal purposes. Allen v. 
 Turner, 11 Gray, 436; see Clark v. Ward- 
 well, 55 iNIaine, 61. 
 
 ■' In a suit seeking to reform a deed, the 
 holder of an equity of redemption not 
 barred by lapse of time, under a mortgage 
 not foreclosed, is a party in interest, and 
 must be notified; and so also of the grant- 
 or and grantee in the deed sought to be 
 reformed. Pierce v. Faunce, 47 Maine, 
 507. 
 
 W^here A. contracts to convey land toB., 
 but actually conveys the land to C, both 
 A. and (l. are proper parties to a bill filed 
 bv 15. for specific performance. Daily v. 
 Litchfield, 10 Mich. 29. In a suit to set 
 aside a deed for frand against creditors, 
 both the grantor and grantee are neces- 
 sary parties. Lovejoy v. Irelan, 17 lid. 
 525.
 
 PERSONS RESISTING PLAINTIFF S DEM.VNDS. 
 
 247 
 
 Under this definition are included all persons who fill the char- 
 acter of trustees of the property in dispute. But the rule is sub- 
 ject to exception, where the party is in the situation of a mere 
 naked trustee, without any estate vested in him, in which case he 
 need not, in general, be made a party. Thus, a broker or agent 
 signing a contract in his own name for the purchase or sale of 
 property, is not considered a necessary party to a bill for a specific 
 performance of such contract against his principal.^ And so, where 
 a person having no interest in the matter joins with another who 
 has, in a contract for sale, as where a man having gone through a 
 fictitious ceremony of marriage with a woman, joins with her as 
 her husband in an agreement to sell her property, he is not a neces- 
 sary party to a suit to enforce the contract.^ 
 
 In all cases, however, in which any estate is vested in an indi- 
 vidual filling the character of trustee, or, if he has no estate, where 
 the circumstances are such, that in the event of the plaintiflT suc- 
 ceeding in his suit, the defendant may have a demand over against 
 him, lie is a necessary party.^ Thus in Jones v. Jones^ where a 
 plaintiff sought to set aside a lease on the ground of forgery, with- 
 out bringing before the Court the trustees who were parties to the 
 lease, and to whom the fraud was imputed, the objection for want 
 of parties was allowed, because if the plaintiff prevailed, the de- 
 fendant might have a remedy over against the trustees. Upon the 
 same principle, where the trustees of real estates had conveyed 
 them over to purchasers, it was determined, that on a bill by tlie 
 cestui que trusts against the purchasers to set aside the conveyance, 
 the trustees were necessary parties.^ 
 
 A trustee, however, who is named in a will, but has never acted, 
 and has released all his interest to his co-trustee, ought not to be 
 made a party to a bill to set aside tlie will on the ground of fraud.® 
 
 Where a trustee has assigned his interest in the trust-estate to 
 another, it is necessary to have, not only the trustee who has as- 
 signed, but the assignee before the Court.'' It is improper, how- 
 ever, to make the agent of a trustee a party ; ^ and a person who 
 
 trustees bav- 
 ma estates, 
 or liable to 
 unsuccessful 
 defendant; 
 
 Where trus- 
 tee under will 
 has not 
 acted ; 
 
 assiffnee of 
 trustees; 
 
 agent of trus- 
 tee improper 
 party. 
 
 1 Kingsley v. Young, (,'oop. Eq. I'l. 42; 
 see ante, p. 248; Story K<|. I'l. § '^31 ; Lang 
 V. IJrown, '29 TJeo. 628; see Miller r. Whit- 
 taker, 2-3 III. 453. 
 
 2 Sturge I'. Starr, 2 M. & K. 196. 
 
 3 See McKiiiley v. Irvine. 13 Ala. 681; 
 Cassiday r. .McDiinicI, 8 U. Mon. 51'J; 
 Morrow r. Lawrence, 7 Wis. 674. 
 
 4 3 Atk. 110. 
 
 ' Harrison ». Pryn, Uarnard. 324. Where 
 a bill alleged a fraudulent combination 
 between the maker of a deed of tru^t 
 and one of the trustees tlHTeiu iiaiiied, 
 and it was sought to '^et aside a preference 
 given to such trustee, it was held that the 
 maker f>f IIk; deeil as well as the trustee 
 should be made a party. Murphy v. Jack- 
 son, 6 Jones Eq. (N. C-) 11. 
 
 8 Uicliardson ),'. Iluibert, 1 Aiist. 65. 
 
 7 Murt V. Dennett, 2 Hro. C. G. 225, 
 Perkins's ed. note (a)\ Storv !•>(• PI. 
 § 201); Bailey r. Inglee, 2 I'aig'e, 278. If 
 the trustee; has assigned his trust alisolute- 
 ly, the assignee should be made a p:>rty in 
 liis stead, and the trustee need not be miido 
 a partv, unless the assiginnent is a breach 
 of trust. St..ry E.). I'l. §§ 211, 21-3, 214; 
 Bromley v. Ilolbind, 7 Sumner's V<"s. 3, 
 and note (<■); Muwh f. C'ockerell, 8 Sim. 
 219. But if the bill is bioucbt to remove 
 the trustee, and recover from a stranger 
 prnpcrtv iuiproperlv sold bv tin; trustee, it 
 IS not a case <>f misjoinder. Whitman 
 V. Aberniitliv, 33 Ala.'l.')4; sw Weliber V. 
 Taylor, 5 .Io"nes Eq. (N. C) 30. 
 
 iVttorney-General v. Earl of Cliester- 
 
 ayi< 
 
 8 .1
 
 -48 OF PARTIKS TO A SUIT. 
 
 y"- V - § -■ li;i(l assuiiUHl to net ns a trustee, (hougli not duly appointed, was 
 
 '^ lield to be an agent for this purj)ose.^ 
 
 Whore Olio It was, formerly, generally necessary, whei'e there were more 
 
 iioMuVwltii- trustees than one, that they should all be })artics, if amenable to 
 out othors. or l\^^, pvoccss of the Conrt ; " but this rule has been in some res])ect8 
 stutativcs. modified by a General Order of the Court,'* which enables a 
 plaintitl' who has a joint and several demand against several per- 
 sons, to }iroceed against one or more of the several persons liable 
 without making the others parties; and even before this Order, 
 in some cases where there were merely accounting parties, one 
 might be sued for an account of his own receipts and payments, 
 without bringing the others before the Court.* Thus, where a bill 
 was filed against the representative of one of several trustees Avho 
 were dead, for an account of the receipts and payments of his 
 testator, who alone managed the trust, an objection that the repre- 
 sentatives of the other trustees were not before the Court, was 
 overruled; because the plaintiff insisted only upon having an ac- 
 count of the receipts and disbursemcnits of the trustee, whose rep- 
 resentative was before the Court, and not of any joint receipts or 
 transactions by him with the other trustees.^ And so, where a bill 
 was filed by a creditor against the representatives of B. and C. as 
 two trustees of estates conveyed in trust to pay debts, for an 
 account of the produce of the sales, and payment of their debts ; 
 and the representatives of B. alleged by their answer, that not 
 only C. but D. also were trustees, and that D. had acted in the 
 trust, although they did not know whether he had received any of 
 the produce, Lord Kenyon M. R., and afterwards Lord Arden M. 
 R., held D. to be an unnecessary party. The reporter of this case 
 adds a query, because at the bar the general opinion was that D.'s 
 representatives ought to have been parties, nor could one creditor 
 suing waive, on behalf of absent parties in joint interest with him- 
 self; the benefit or possible benefit of any part of the trust fund.^ 
 This query seems to be in accordance with the principles laid down 
 in Williams v. Williams.'' Where a cestui que trust seeks a gen- 
 eral account, he must bring all the accounting parties before the 
 Court, notwithstanding the order.^ 
 
 field, 18 P.eav. 596; 18 Jur. 686; Maw i;. 214, and notes; Fleming v. Gilmer, 35 
 
 Pearson, 28 Beav. 196; and see liobertson Ala. 62. 
 
 «. Armstrong, 28 Heav. 12.3 ; see, however, 6 liouth is. Kinder, 3 Swan. 144, n., from 
 
 Attornev-(Jener;il v. Corporation of Leices- Lord Colchester's MSS. 
 
 ter, 7 hciiv. 176, 179. But see Hardy t». "i 9 Mod. 299; see also Wadeson v. 
 
 Caley. 33 Heav. 36.5. Rudfje, 1 C. P. Coop. t. Cott. 369; but 
 
 1 Lin<r V. Colintin, 10 Beav. 370, 373. see Masters v. Barnes, 2 Y. & C. il. C. 
 
 2 16 Vin. Ab. Party, B. 257, PI. 68. 616; 7 Jur. 1167; and Symes v. (ilynn, 
 8 (Jrd. VII. 2. and Pease v. Cheesbrough, cited Seton, 
 * Ladj' Selvard v. The Executors of 115. 
 
 Ilarr^, 1 R^ 'Ca. Ab. 74; but see Munch » Coppard v. Allen, 10 .Jur, N. S. 622; 
 
 V. Cockerel), 8 Sim. 219; Story Eq. PI. 12 W. li. 943, L. JJ.; 2 De G., J. & S. 
 
 § 214, note. 173. 
 6 See Story Eq. PI. §§ 207 a, 212, 213,
 
 PERSONS RESISTING PLAINTIFFS DEMANDS. 
 
 249 
 
 The rale which requires the trustees of property in litigation to 
 be brought before the Coiirt, renders necessary the presence of the 
 committees of the estates of idiots and lunatics in suits against 
 the idiots or lunatics committed to their care ; ^ because they are 
 the trustees of such estates. Upon the same ground, the assignees 
 of bankrupts or insolvents, are necessary parties to suits relating to 
 the property of such bankrupts or insolvents.^ 
 
 For the like reason, wherever a demand is sought to be satisfied 
 out of the pei-sonal estate of a deceased person, it is necessary to 
 make the personal i-epresentative a party to the suit. Thus, al- 
 though, as we have seen, a creditor or a legatee may bring a bill 
 against a debtor to the testator's estate upon the ground of collu- 
 sion between him and the executor,^ yet in all cases of this desciii^- 
 tion, the personal representative must be before the Court.* And 
 so, where to a bill for an account of the estate of,a person deceased, 
 and to have the same ap])lied to satisfy a debt alleged to be due 
 from him to the plaintiff, the defendants pleaded that they were 
 not executors or administrators of the party whose estate was 
 sought to be charged, nor so stated by the bill, and demurred, for 
 that the executors or the administrators were the proper parties 
 to contest the debt, who might probably prove that it had been 
 discharged, the Court allowed both the plea and demurrer, but 
 gave the plaintiff leave to amend his bill as he might be advised ; ^ 
 but to a suit concerning a specific legacy, the executor is no longer 
 a necessary jtarty after he has assented to the bequest ; thus, where 
 a bill was filed by the reversioner against the legatee of a term, 
 praying that the lease might be declared void, and the defendant 
 insisted that if the lease was set aside, the plaintiff ought to pay 
 the money expended by the testator in the improvement of the 
 premises, the executor of the testator, Avho had assented to the 
 bequest, was not considered a necessary party to the suit.*^ And 
 where an executor had been outlawed, and a witness proved that 
 
 1 L(l. Kc'i. 30. It seems tliat u])on a 
 bill for the recovery of a debt, due from 
 a (iriinkiirij, ajjainst liis cotnmittee, the 
 drunkard is ii proper, thouf^h not n neces- 
 Farv party. Bench v. Bradlev, 8 Paige, 
 146. 
 
 2 Sec Storm r. Ilavcnport, 1 Randf. 
 (N. Y.) (Jli. \:ir,; Ilijlianl liank. & Ins. 
 383, SV-l; Moraii r Huvs, 1 .John. Ch. 
 339; S.-lls V. Iliibbell. i .lohii. Ch. 304; 
 Sprin(;<T c. Vanderinx)!, 4 Ivlw. Ch. 3tJ2; 
 Hoti> r. I'atlon, 10 I'.. .Moii. 4'.'2. 
 
 3 Attorriey-fieiierul r. \\'_viiiie, Mos. 12'J; 
 Sec arile, p. I'.i.'. ; /msl, <;. C, § 4, and notes 
 to tiie point, " I.e^^atee or creditor cannot 
 sue debtor to testator's estate." 
 
 ■• Sei! l'<.stleih\vaite r. Howes, 3 Clarke 
 (lowii), W'l. I'.ut the heirs need not lie 
 made [larties to a suit relating; exclusively 
 to the [)ersoiialty. (ialphin r. .M' Kinney, 
 1 McCord Ch. 280. 15ut it is otherwise in 
 
 In demands 
 against 
 personalty ; 
 
 as in suits by 
 creditors ; 
 
 in suit where 
 a reversioner 
 seeks to re- 
 scind lease 
 against spe- 
 ciiic legatee, 
 after execu- 
 tors assent; 
 
 where execu- 
 tor outlawed; 
 
 regard to a suit respecting the real estate. 
 Kennedy ?'. Kennedy, 2 Ala. 571; Smith 
 V. West, 5 I,itt, 48;"Carr v. Ciillagh:\u, 3 
 Litt. 30.5. And to a hill against iin ad- 
 ministrator, to charge the estate witli an 
 annual p:iyment, to preserve tlie residue, 
 the distributees of tiie estate are necessary 
 [)iirties. (y'oheen i'. (K)rdoii, 1 Hill Cli. .51. 
 
 •^ Criliith V. Batemim, Kep. t. Kind), 
 334; Iluinney i;. Mead, Kej). t. Finch 303; 
 Attorney-General v. Twisden, Hep. t. Finch 
 330; ami see Attorney-deneral r. Wynne, 
 Mos. 126. For a ease wliere under special 
 circumstances the executors of the settlor 
 of a trust fund would be necessary parties 
 to a suit for administering it, sect .Imlgment 
 of Sir .1. \Vi<.'ram V. C. in (iaimt r. Jolin- 
 son, 7 Hare, 1.54, 150; 12 .Itir. 1007. 
 
 c .Maljias »•. Ackland, 3 liuss. 273,277; 
 and see Smith v. IJrookHbaiik, 7 Sim. 18, 
 21; Moor v. Blagrave, 1 Ch. Ca. 277
 
 2oO 
 
 OF PARTIES TO A SUIT. 
 
 Cii. V. 5 2. 
 
 after appro- 
 priation; 
 
 After distri- 
 bution under 
 decree, or 
 issue of ad- 
 vertisements 
 under 2-2 & 23 
 Vic. c. 35, 
 § 29. 
 
 executor du- 
 rante minore 
 (State ; 
 
 unless he 
 has fully 
 accounted. 
 
 Personal rep- 
 resentative 
 must be 
 appointed in 
 England. 
 
 Representa- 
 tive aljroad, 
 coming to 
 England. 
 
 lio li:hl iiu|uire(l atlor but could not liiul him, it was thought to be 
 a l"ull answer to the objection, that lie was not a p:ii'ty to a suit 
 which had been institutetl by a creditor of the deceased testator 
 against the residuary legatee.^ 
 
 ISIoreovev, in some cases, where the fund, the subject of the suit, 
 has been ascertained and ai)|)roi)riatcd, the Court has disj)ensed 
 with the appearance of a personal representative to the testator, 
 by whose will the fund luis been bequeathed." And where the 
 estate has been distributed under the decree of the Court,^ or after 
 the issue of advertisements under the 22 & 23 Vic. c. 35, § 29,* 
 the personal representative is not a necessary party to a suit to 
 establish a claim against the estate. 
 
 The rule which requires the executor to be befoi'e the Court in 
 all cases relating to the personal estate of a testator, extends to an 
 executor durante niinore cetate^ even though the actual executor 
 has attained twenty-one, and has obtained probate thereon.'' It 
 is to be observed, however, that if the actual executor has re- 
 ceived all the testator's personal estate from the hands of the 
 executor durante minore oitate^ upon an account between them, 
 the executor durante minore catate is not a necessary party. 
 
 The personal representative required is one appointed in England; 
 and Avhere a testator appointed persons residing in India and Scot- 
 land his executors, and the will was not proved in England, but 
 the plaintiif, a creditor, filed a bill against the agent of the exec- 
 utors, to whom money had been remitted, praying an account and 
 payment of the money into Court for security, a demurrer, because 
 no personal rej^resentative of the testator resident within the juris- 
 diction of the Court Avas a party, was allowed.*^ 
 
 And so, where an executor proved the will of his testator in 
 India, and afterwards came to this country, where a suit was insti- 
 tuted against him, for an account of an unadministered part of 
 the testator's estate, which had been remitted to him from India 
 by his co-executor there, it was held necessary that a personal 
 representative should be constituted in England, and made a party 
 to the suit.'' 
 
 1 HeiUh V. Percival, 1 P. Wms. 683. 
 
 2 Arthur r Hughes, 4 Heav. 506; l$eas- 
 ley V. Kenyon, u Beav. 544; Bond v. Gra- 
 ham, 1 Hare, 484; 6 Jur. 620; Story Eq. 
 PI. § 214. 
 
 2 "Farrell v. Smith, 2 B. & B. 337 ; see 
 also Poolev v Kav, 1 P. Wms. 355; Bmoks 
 t). R'-ynoris, 1 Bro. C. C. 162; 2 Dick. 
 603: Douglas v. VA-dy, 1 Dick. 393; Kenyon 
 V. Worthington, 2 Dick. 688. 
 
 * Clegg V. Rowland, L. R. 3 Eq. 368, 
 V. C. NL 
 
 5 Glass V. Oxenham, 2 Atk. 121. 
 
 8 Lowe V. Fiirlie. 2 Mad. 101; see also 
 Logan V. Fairlie, 2 S. & S. 284; Story 
 Conf. Laws, §§ 513, 514, 514 a, and notes 
 and numerous cases both English and 
 
 American there cited; Story Eq. PI. § 179, 
 and cases cited in notes; Ashmead v. 
 Colbv, 26 Conn. 287. 
 
 7 Bond V. Graliam, 1 Hare, 482; Tyler 
 V. Bell, 2 M. & C. 89, 105; but see An- 
 derson V. Gaunter, 2 M. & K. 703, and see 
 the observation of Lord Cottenliam on this 
 case, 2 M. & C. 110. For tiie metho<l of 
 obtaining limited or s|)ecial administration 
 where the executor is abroad, see ante, pp. 
 197, 198. Some of the American Courts 
 have gone so f;ir as to hold, that a foreign 
 executor or administrator, corning here, 
 having received assets in the foreign 
 country, is liable to be sued here, and to 
 account for sucii assets, notwithstanding 
 he has taken out no new letters of admin-
 
 PERSONS RESISTING PLAINTIFFS DEJIANDS. 
 
 251 
 
 Where an administration was disputed in the Ecclesiastical 
 Court, the Court of Chancery would entertain a suit for a receiver 
 to protect the property till the question in the Ecclesiastical Court 
 was decided, although an administration pendente lite might be 
 obtained in the Ecclesiastical Court.-^ In such cases, the rule 
 requiring a representative to be before the Court must be dis- 
 pensed with, there being no person sustaining that character in 
 existence.- And where a party entitled to administer refuses to 
 take out administration himself, and prevents any one else from 
 doing so, he will not be allowed to object to a suit being proceeded 
 with, because a personal representative is not before the Court. 
 Thus, in U'aranda v Whittingham^^ where the heir of an obligor 
 demurred to a bill by an obligee, because the administrator of the 
 obligor Avas not a i)arty, the demurrer was overruled, because it 
 appeared that he would not administer himself, and had opposed 
 the plaintiff in taking out administration as the principal creditor ; 
 and in a case where the person entitled by law to administration 
 did not take it out, but acted as if she had, receiving and paying 
 away the intestate's property, an objection for want of parties, on 
 the ground that there was no administrator before the Court, was 
 overruled.* In the case of Creasor v. Mobinson,^ however, the Court 
 declined to follow the case last referred to ; and refused to make an 
 order for an account against an administrator de son tort, unless a 
 legal personal representative duly constituted was a party. 
 
 ecutors may be made parties to the suit 
 instituted fur tiiat iinrpose. See Scruggs 
 V. Driver, 31 Ala. 274. 
 
 1 Atltinson v. Henshaw, 2 V. & B. 85; 
 Ball V. Oliver, ib. 96; see also Watkiiis v. 
 Brent, 1 M. & C. 97, 102; Whit worth v. 
 Whyddon, 2 M'N. & G. 52; 14 Jur. 142; 
 Gumming I'. Fraser, 28 Beav. 614; l>imes 
 V. Steinberg, 2 Sni. & G. 75. Now, how- 
 ever, it is ajjprehended that the Court 
 would require a special case to be made for 
 its interference, pending proceedings in the 
 Proljate Court; that Court having power 
 to appoint an administrator pemleiilt lite, 
 with full iiowers, and also to nominate him 
 receiver of the rents of real estate. 20 & 
 21 Vic. c. 77. §§ 70, 71, 73; Verey v. I)n- 
 prez. L. li. 6 Eq. 32U, V. C. M. ; Tidiborne 
 V. Tichborne, L. K. 1 P. & 1). 730; Hitchin 
 V. Burks, W. N. (1870), 190; 18 W. K. 
 1015; for an instance in CliMucery since 
 this Act, see Williiims v. Attirnev-Gen- 
 eral, M. H. 8 May, 1861; Seton, 1003. 
 
 2 Story Kq. 1*1. § <Jl. The Court can, 
 however, ap|)oiiit a nominee of its own to 
 represent the estate. 15 & 16 Vic. c. 86, § 
 44. 
 
 " Mos. 84. See, however, Penny v. 
 Watts, 2 Phil. 149. 
 
 * Ck-land I'. Cleland, I'rec. Ch. 64. 
 
 C 14 licav. 58!(; \r, .Jur. I04'.i; see also 
 Cooke V. Gcttings, 21 Beav. 497; McRrd- 
 more v. Gregory, 2 II. & M. 491; 11 Jur. 
 N. S. 363. 
 
 istration here, nor has the estate been 
 positively settled in the foreign State. 
 Swearingen v. Pendleton, 4 Serg. & K. 
 389, 392; Evans v. Ta'tem, 9 Serg. & R. 
 252, 259; Bryan o. McGee, 2 Wash. C C. 
 337 ; Campbell v. Tousey, 7 Cowen, 64 ; 
 see also 1 )ow(laie'8 case, 6 Coke, 47 ; Ju- 
 lian r. IJeynolds, 8 Ala. 680. This doc- 
 trine, however, seems not to receive a very 
 general sanction; see Story Conf. Laws, 
 § 514 b. The doctrine of the te.xt is best 
 supported by authority. See Story Conf. 
 Laws. § 514 b, and notes; Boston v. Boyl- 
 8ton, 2 Mass. 384; (Joodwin v. Jones, 3 
 Mass. 514; I);ivis r. Estey, 8 I'ick- 470; 
 Dawes V. Head, 3 Pick. 128; Doolittle v. 
 Lewis, 7 .John. Ch. 45, 47; McRea v. Mc- 
 Hea, 11 Louis. 571; Attorney-General v. 
 Bowens, 4 .M. & W. 171. In Camiibell v. 
 Wallace, 10 <;ray, 162, it was held, that 
 there is no K(|uity jurisdiction in Massa- 
 chusetts to etiforce a trust arising under 
 the will of a fureigner, which has been 
 proved and allowed in a foreign country 
 only, and no certilied copy of which has 
 been tiled in the I'robaie (-'"urt of that 
 State. See Canijibell v. Sheldon, 13 Tick. 
 8. In Shitter r. Carn'll, 2 Sandf Ch. 573, 
 it WHS held that, in a ca^e, where there are 
 real assets of the estate of a deceased [)cr- 
 son within its jurisdiction, although no 
 udministrntion has be.en taken within the 
 State, a Court of Kquity will not hesitate 
 to administer them; and the foreign ex- 
 
 Party who 
 
 prevents ad- 
 ministration 
 being taken 
 out, cannot 
 object to suit 
 proceeding.
 
 '252 
 
 OF PARTIES TO A SUIT. 
 
 rii. V. 5 -2. 
 
 lionerally all 
 exei'iitoi-s 
 must be 
 jiaitios. 
 
 k^^'ll'M.*, wlioiv 
 
 al>n>:iii, or in 
 coutonipt, or 
 not proving. 
 
 Acting ex- 
 ecutor, 
 though he 
 releases and 
 disclaims, 
 must be a 
 party. 
 
 Eepresenta 
 tive of 
 deceased 
 executor, or 
 adminis- 
 trator, when 
 necessary 
 party. 
 
 Wheiv tlioro are several executors or adiuinistralors, they must 
 all be made parties, even though one of them be an infant;^ but 
 this rule may be dispensed with, if any of them are not amenable 
 to tin' pi-oeess of the Court,'^ or if they have stood out jjroeess to a 
 sequestration ; and if an executor has not ])roved he need not be 
 a i)arly.^ Thus, where there were four executors, one of whom 
 alone proved and acted, and a bill was brought against that one, 
 and he in his answer confessed that he hud alone proved the will 
 and acted in the executorship, and that the others never inter- 
 meddled therein, it was said to be good.* Tn that case* however, 
 if the executor who had proved had died, it would not have been 
 sufficient to have brought his executor before the Court, because 
 he M'ould not have represented the original testator; the other 
 executors would still have had a right to prove, even though they 
 had renounced probate.^ The record, therefore, would not have been 
 complete Avithout a new rei)resentative of tlie original testator.® 
 
 Wherever an executor has actually administered, he must be 
 made a party to a suit, although he has released and disclaimed.'^ 
 But where a ])laintiif filed a bill against one of two executors, and 
 alleged in his bill that he knew not who was the other executor, 
 and prayed that the defendant might discoA^er who he was and 
 where he lived, a demurrer for want of parties was overruled.^ And 
 in the case before referred to, where one of two joint executors Avas 
 abroad, an account Avas decreed of his OAvn reeei])ts and ])ayments.® 
 
 The cases do not seem to aiford a very clear ansAver to the ques- 
 tion, under Avhat circumstances, in a suit to administer the assets 
 of a deceased testator or intestate, the plaintiff otight to join, AAdth 
 the existing personal representatives, such parties as fill the posi- 
 tion of administrators or executors of a former rejiresentative of 
 the original estate.^" It is conceiA'ed, however, that the ])ractice in 
 
 1 Scurry v. Morse, 9 Mod. 89; Offey v. 
 Jeniiv, 3 Ch. IJep. 92; Hamp v. Robinson, 
 3 l)e"G., J. & S. 97. 
 
 2 Cowslad V. Cely, Prec. Ch. 83; but if 
 they are all out of the jurisdiction, an ad- 
 ministrator duninte absentia must be ap- 
 pointed. Donald v. Bather, 16 Heav. 26. 
 
 3 Went. Off. Kx. 95 ; Brown v. Pitman, 
 Gilb. Eq. K. 75; 16 Vin. Ab. Party B. 
 251, pi. 19; Strickland v. Strickland, 12 
 Sim. 463; Dvson v. Morris, 1 Hare, 413, 
 421; 6 Jur. 297; and see 21 and 22 Vic. 
 c. 95, § 16; but the plaintiff u:ay make 
 him a partv, if he has acted as executor. 
 Vickers v. Bell, 10 Jur. N. S. 376, L. J.J. 
 So where a bill seeks discover}' and relief 
 only against the acts of one of the execu- 
 tors of an estate, it is not necessary to 
 make the other executor a party in the 
 first instance. But, it seems, a co-executor 
 may be ma<ie a part}-, during the progress 
 of the suit, if it shall prove to be expedient 
 or necessary. Footman v. Pray, K. M. 
 Charlt. 291." See ante, 247, 248. 
 
 4 Brown v. Pitman, Gilb. Eq. 75; 16 
 Vin. Ab. tit. Parties, LJ. PI. 19; Cramer v. 
 Morton, 2 Moll. 108; Clifton v. Haig, 4 
 Desaus. 330; ante, 21S, 221. 
 
 6 ArnoJ'l V. Bleiioowe, 1 Cox, 426. It 
 may be doubted whether this is now so. 
 See' 20 & 22 Vic. c. 77, § 79; & 21 and 22 
 Vic. c. 95, § 16. 
 
 o It has been determined, that the gen- 
 eral order enabling a ])laiiitiff to proceed 
 against one or more ])ersons severally lia- 
 ble (Ord. VII. 2) does not apply to a gen- 
 eral administration suit. Hall v. Austin, 2 
 Coll. 570; 10 Jur. 452. 
 
 7 Smithby v Mintoii, 1 Vern. 31. 
 
 8 Bowyer V. Covert, 1 Vern. 95; Story 
 Eq. PI. § 92; see AVillis v. Henderson, 4 
 Scam. 20. 
 
 9 Cowslad V. Cely, Prec. in Ch. 83; Clif- 
 ton V. Hiiig, 4 Desa'iis. 330. 
 
 10 Williams V. Williams, 9 Mod. 299; 
 Phelps V. Sproule, 4 Sim. 318, 321; Hol- 
 land V. Prior, 1 M. & K. 237; Masters v. 
 Bnrues, 2 Y. & C. C C. 616; 7 Jur. 1167;
 
 PERSONS RESISTING PLAINTIFF'S DEMANDS. 
 
 253 
 
 this respect is now settled ; r/s., to make the personal representa- 
 tives of a deceased executor parties, where he had received assets 
 of the testator for which he has not accounted Avith the surviving 
 executor, and in respect of which it is sought to charge his estate ; 
 but whei'e this is not the case, to introduce into the bill an allega- 
 tion that the deceased executor fully accounted with the survivor, 
 and that nothing is due from his estate to the estate of the testator, 
 and not to make his representative a party to the suit.-^ The tact 
 of such deceased executor having died insolvent or without having 
 received assets, would in all cases probably prevent his executors 
 being proper j^arties.- 
 
 If a bill is tiled against a married Avoman, who is an executrix 
 or administratrix, her husband must also be a party, unless he has 
 abjured the realm ; ^ or she has obtained a protection order, or is 
 judicially separated.* In Taylor v. Allen^ however. Lord Hard- 
 wicke granted an injunction to restrain a Avife, executrix, from 
 getting in the assets, her husband being in the West Indies, and 
 not amenable to the process of the Court, on the ground, that if 
 she wasted the assets, or refused to paj", a creditor could have no 
 remedy, inasmuch as her husband must be joined as a party to the 
 suit against her. 
 
 Where a bill had been filed for an account of the testator's 
 estate, and it was objected that one of the executors was not a 
 party, he was ordered to be introduced into the decree then made, 
 as a party, and decreed to account before the Master, without put- 
 ting oflf tlie cause to add parties ; " but this can only be done where 
 the person ap})ears, and submits to be bound as if originally a party .'^ 
 
 It seems, that where a power of sale is given, by a will, to exec- 
 utors, and they renounce jirobate, they will not be considered neces- 
 sary parties to the suit; thus, Avhere a testator had devised that 
 his executors should sell his land, and be possessed of the money 
 arising from the sale upon certain trusts mentioned in his Avill, 
 and made i). and C. his executors, Avlio renounced; Avhereu})on 
 ailiniiiistratioii, with the will annexed, Avas granted to one of the 
 l»laiutitl's, upon a bill Ijrought by the cestui ([ue trust of the pur- 
 
 Linfjv. Colman, 10 Benv. 370, 374; Hull 
 V. Austin, 2 Coll. 570; 10 Jur. 4o2; Clark 
 V. Webb, 1« Sim. 101; 12 .liir. GIO; Story 
 Eq. I'l. § 170, note, § :i>'2; (^lincc v. 
 (^uiiR-e, 1 .Mui[)li. 100; I lagan v. Walker, 
 14 Hi;w. C. S. 21). 
 
 1 See Wliittiiigton v Gooding, 10 Hare 
 App. 20; i'ease v. (jheesbrougli, Seton, 115. 
 I5ut see llaiiip v. Jtobiii'-oii, 3 I)e (i. J. & 
 S. 1>7; and sec .Montgonierv v. I"loy<l, lb 
 L. T., N. S. 847, V. C. \\., wlicre tlie 
 representatives of a deceased executor 
 were lu-ld not to be ueeessiiry parties, 
 tliough there was no such allegation. l'"or 
 form of decree, where plaiiitilf does not, 
 by lii< bill, seek to charge a deceased co- 
 executor's estate, see Seton, 115. 
 
 Ch. V. § 2. 
 
 2 See Wills v. Dunn, 5 Grattiui, 3S4; 
 Svnu's V. (ilvnn, Seton, 115. 
 "•• L(l. Ked.'ao. 
 
 4 20 & 21 Vic. c. 85, §§ 21, 25, 2G; and 
 see IJathe v. Hank of England, 4 K. & J. 
 564; 4 Jur. N. S. 605; 21 &; 22 Vic. c. 
 108, § 7. 
 
 5 2 Atk. 213. 
 
 « I'ift r. Brewster, 1 Dick. 37. It is pre- 
 sumed that ho M])|)eari,'d, and con«eiiti'd to 
 this order. See l'"ootman x\ I'riiy, It. M. 
 Cliiirlt. 271, cited in note, ante, 252. As to 
 the husband of an accounting i)arty, see 
 Saptc V. Ward, 1 Coll. 24. 
 
 ' Seton, 1110. 
 
 Husband of 
 executrix or 
 adminis- 
 tratrix. 
 
 Co-executor 
 not party, 
 ordered to 
 account in 
 decree. 
 
 Effect of 
 executors 
 renouncing, 
 ■where power 
 of sale.
 
 254 
 
 OF TARTIES TO A SUIT. 
 
 Cii. V. § 1. 
 
 Where per- 
 sonalty is 
 souglit to be 
 recovered or 
 charged ; 
 
 residuary 
 legatees 
 unnecessary 
 parties, 
 
 oh.'iso-nioncv, undor tlio Mill, ngainst tlio lioir, to compel liim to 
 join ill :i siik' of the lands; it was objected that there wanted 
 parties, in re;j;ard that the executors ouejlit to Imve been made 
 defendants, for notwithstanding they had renounced, yet the 
 power of sale continued in them, and the objection was overruled, 
 there being only a power and no estate devised to them.^ It 
 shoiild be noticed, that a query has been added to the decision 
 upon this point by the reporter, and the doubt suggested appears 
 to be justified by the o])inion expressed both by Sir P^dward Sug- 
 den and Mr. Preston, viz., that where a power is given to exec- 
 utors they may exercise it, although they renounce probate of the 
 will.- It is to be observed, however, that in the case of Keates v. 
 Burton,^ referred to by Lord St. Leonards (which Avas a case of a 
 discretionary poAver given by a testator over the api)licntion of the 
 interest of a money fund to his trustees and executors, one of 
 whom died, and the other renounced). Sir William Grant M. R. 
 remarked, " that the power is given to the executors, but they 
 have not exercised it, and they have renounced the only charac- 
 ter in which it was competent to them to exercise it ; " ^ and in 
 the case of Earl Granville v. M'Neill,^ where it was held, that the 
 two executors who had proved, could exercise a power of api)oint- 
 ment given to their testator, his executors, administrators, and 
 assignees, although a third executor, Avho had renoun(!ed, was also 
 named in the Avill, Sir James Wigram V. C. said, "I have referred 
 to Sir Edward Sugden's book on Powers, but find nothing to 
 make me doubt the sufficiency of the appointment. The question 
 in all such cases is, Avhether the confidence is reposed in the indi- 
 viduals named, or in the persons who, de facto, fill the given office." ° 
 The executor or the administrator of a deceased person being 
 the person constituted by law to represent the personal property 
 of that person, and to answer all demands upon it, it is sufficient, 
 Avhere the object of a suit is to charge such personal estate Avith a 
 demand, to bring the executor or administrator before the Court ; ^ 
 thus, in a bill to be relieved touching a lease for years, or otlicr 
 personal duty against executors, it is not necessary, though the 
 executors be executors in trust, to make the cestui que trusts, or 
 the residuary legatees, parties.^ And so, Avhere a bill Avas filed 
 
 Stanley, 13 W. R. 210, L. .TJ. ; see Neale 
 V. Hagthorp, 3 I51and, 551; Wilkinson v. 
 Perrin, 7 Monroe, 217; (Jalphiii v. M'Kin- 
 ney, 1 M'Cord Ch. 294; Story Eq. I'l. § 
 140, and nolo; I'ricliard v. Hicks, 1 Paige, 
 270; Kinlock v. Meyer, 1 Speer, S. C Kq. 
 428; IJIackwcIl v. Blackwell, 33 Ala. 57. 
 
 8 Anon. 1 Vern. 201; 1 Kq. Ca. Ab. 73. 
 PI. 13; Lawson v. Haiker, 1 ]5ro. C. C. 303; 
 Love V. .Jacomb, ilid\ Story Eq. PI § 104, 
 and 140, in notes; Wiser v. IJlactily, 1 John. 
 Ch. 437 : Dandridge v. Washington, 2 Pe- 
 ters, 377. 
 
 1 Yates I'. Compton,2 P. Wms. 308; see 
 Ferebee v. Proctor, 2 Dev. & Bat. 439; S. 
 C. 2 Dev. & Biit. Eq. 496; .Jackson v. 
 Scauber, 7 Cowen, 1S7; Peck v. Hender- 
 son, 7 Yerjier, 18; Champlin d. Parish, 3 
 Edw. Ch. 581. 
 
 2 Sug. Pow. 174 (4th ed.); 2 Prest. on 
 Abst. 264. 
 
 3 14 Yes. 434, 437. 
 
 4 See 1 Wms. Exors. 156. 
 8 7 Hare, 156; 13 Jur. 253. 
 G See Wms. Exors, 251, 258. 
 7 Ld. Ked. 165 ; Micklethwaite v. Win-
 
 PERSONS RESISTING PLAINTIFF'S DEMANDS. 255 
 
 against an executor, to compel the transfer of a sum of stock be- Ch. Y. §2. 
 long-ing to his testatrix, and the executoi", by his ansA^er, stated "^ 
 
 that the residuary legatees claimed the stock, an objection for 
 want of jjartios Avas held to be untenable.^ 
 
 In like manner, where a testator gave different legacies to three and so 
 persons, and they were to abate or increase according to the amount fe^gate^sT 
 of the personal estate ; to a bill against the executor by one lega- 
 tee, the executor pleaded that the other legatees ought to be 
 parties, because tlie account made with the plaintiff would not 
 conchide them, and he should be put to several accounts and 
 double proof and charge, the plea was overruled.^ It seems, how- but persons 
 
 , , 1 -f T xi i • having speci- 
 
 ever, that where a person has a specmc lien upon tlie property m ^f. uens may 
 dispute, he must be brought before the Court ; and upon this ^^ necessary. 
 ground, in the case of Langleij v. The Earl of Oxford, which was 
 a bill by the specific legatee of a mortgagee against the represent- 
 ative of the mortgagor, for foreclosure, and the defendant pleaded 
 a settled account Avith the executors of the mortgagee, and a re- 
 lease, it was said by Lord Hardwicke, that he could not see how 
 the private account between the executor of the mortgagee and 
 the debtor could discharge the lien on the land ; ^ however, the 
 bill in that case Avas afterwards dismissed.* And so AA'here a hus- Specific lega- 
 band had specifically disposed of his wife's paraphernalia to other pa^pher- 
 persons; on a bill l)y the Avife against the executor for a delivery of "'^l'^- 
 them to her, the specific legatees were considered necessary parties.^ 
 
 The assignees of a bankrupt or insolvent debtor ai"e also, as has Assignees of 
 been before stated, the ])roper parties to re])resent the estates vested represent his 
 in them under the bankruptcy or insolvency; and therefore, in all estate; 
 cases Avhere claims are sought to be established against the estate 
 of a bankrupt or an insolvent debtor, it is necessary to bring only 
 the assignees l)efore the Court, and the bankrupt or insolvent 
 himself, or his creditors, are unnecessary parties.'' Thus it has 
 been held, that a bankrupt is not a necessary party to a bill of 
 ffjreclosure against his assignees." Where, hoAvever, fraud and 
 collusion are charged between the bankrupt and his assignees, 
 the bankrupt may be made a party, and he cannot demur, although 
 
 1 JSrown V. Dowtliwaite, 1 Mad. 446; and the administrator, to recover her share of 
 «ee Jones i'. How, 7 Hare, 207; 12 Jur. tiie estate, mII tlie ilistrihuters 'f tlio intes- 
 227. tate should he made parties. (Jhinu v. 
 
 2 IFiivcock V. Ifiivcock, 2 Cli. Ca. 124; Caldwell, 4 Hibh, r>43. 
 
 Jennings r. J'atersoii, l.'> Hcav. 28. There ''> (,'oliet v. Wollaston, 3 Hro. C. C 228; 
 
 may, however, he ciises where j)eciiniiiry Ililliard IJaiik. & Ins. 383, 384; Sells v. 
 
 legat(!cs are proper parties; as wliere there Iliiliticll, 2 .lolin. Ch. 394; Springer J', 
 
 is a i|iicRtion of ndemption. Miirquis of \'iUid('r|iool, 4 Kdw. Ch. 3(32. On a hill 
 
 Hertford r. Count de Zirhl, !) Heav. 11, 15. filed liy m receiver for the creditms and 
 
 " I.aiipley r. Karl of (Jxford, Aml>. 17; stoekhcdders of a corporation, it is not iicc- 
 
 hnt Pfe Serjeiint Hill's note of this case, in cs«ary to make the creditors and st^ck- 
 
 Bhiiit's edition of Amhler, App. C. p. 795; holders parties. Mann i'. JJnicc, 1 Hiilst. 
 
 Keg. I,il). I',. 1747, to. 300. Ch. (X. .1.) 413. 
 
 * I'.eg. Lil) 15. 1747. fo. 300. 7 Adams v. Holhrooke, Mar. Ch. P. 80; 
 
 S Northey r. Xnrtlicy, 2 Atk. 77. So, to Bainhridgc v. rinhorn, 1 Muck, 130; 
 
 a bill by the widow of'on intestate against Lloyd v. Lander, & Mad. 282, 288.
 
 256 
 
 OF PARTIES TO A SUIT. 
 
 Oil. V. § '2. 
 
 Cestui que 
 trusts neces- 
 sary parties to 
 suits ajjainst 
 their trustees; 
 
 when dis- 
 pensed with. 
 
 relief bo prayed against 1\im. Tims, where a creditor, having ob- 
 tained exeention against (he ert'ects of liis debtor, fded a l)ill 
 against the debtor, against whom a commission of Ijaiikrupt hud 
 issued, and the persons claiming as assignees under the commission, 
 cliarging that the commission was a contrivance to defeat the 
 plaintiirs execution, and that the debtor having, by permission of 
 the ])laintitt", jiossessed part of the gooils which had l>een taken in 
 execution for the purpose of sale, instead of ]>aying the )>roduce to 
 the plaintiff, had paid it to his assignees: a demurrer by the alleged 
 bankrupt, because he had no interest and might be examined as 
 a witness, was overruled.^ 
 
 Subject to the above and certain other exceptions, tlie rule for- 
 merly was that all cestui que trusts were necessary parties to suits 
 against their trustees, by which their rights were likely to be 
 affected.- Thus, on a bill for redemption, where the defendant in 
 his answer set forth that he was a trustee for A., an objection was 
 made at the hearing, that the cestui que trust should have been 
 made a party ; and because it was disclosed in the answer, and the 
 plaintiff might have amended, the bill was dismissed.^ And so in 
 a bill against the heir of a mortgagee to redeem, the pei'sonal rep- 
 resentative must be a party, because he is the person entitled to 
 the mortgage money, and the heir is only a trustee of the legal 
 estate for him.* 
 
 In some cases, however, where the cestui que trusts are very nu- 
 merous, the necessity of bringing them all before the Court has 
 
 1 King V. Martin, 2 Ves. J. C41, cited 
 Ld. Red. 162. In a bill to set aside a con- 
 veyance as made without consideration 
 and in fraud of creditors, the alleged fraud- 
 ulent prantor is a necessary defendant in 
 the bill. Gaylords v. Kelshaw, 1 Walhice, 
 U. S. 81. 
 
 2Storv Eq. PI. §§ 192, 193, 207 ; Helm v. 
 Hardin, 2 B. Mon. 232; Ilewett i'. Adorns, 
 50 Maine, 271, 281; Van Doren v. Kobin- 
 son, 1 C. E. Green (N. J.), 258; Clenioas 
 V. Elder, 9 Iowa, 272. 
 
 In a suit by a trustee to establish and 
 Qiaintain the'title intrusted to him against 
 an adverse claim, by a bill, he must make 
 the cestui que trust a paitv. Blake v. All- 
 man, 5 Jones Eq. (N. C) 407. 
 
 3 Wiiistlerr. Webb, Bunb. 58; Beals v. 
 Cobb, 51 Maine, 349, 350; Story Eq. PI. 
 § 207; Davis v. Hemingway, 29 Vt. 438; 
 see Creare v. Babcock, 10 Metcalf, 525. 
 
 Where, after a mortgage has been made 
 of real property, the property has been con- 
 veyed in trust for the benefit of children, 
 both those in being, and those to be born; 
 all children in esse iit the time of filing a 
 bill of foreclosure of the mortgage should 
 be made parties. Otherwise, the decree of 
 foreclosure does not take away their right 
 to redeem. A decree in such a case against 
 the trustee alone does not bind the cestui 
 que trusts. Clark v. Reybum, 8 Wallace 
 
 U. S. 318. Now, however, in England, in 
 suits concerning real or personal propert}', 
 which is vested in trustees, such trustees 
 represent the persons beneficially inter- 
 ested, in the same manner, and to the same 
 extent, as the executors or administrators 
 in suits concerning personal est-.ite repre- 
 sent the persons beneficially interested in 
 such personal estate; and in such cases it 
 is not necessary to make the persons bene- 
 ficially interested parties to the suit. 15 & 
 16 Vic. c 80, § 42, r. 9; but the rule does' 
 not apply where the cestui, que trusts have 
 concurred in breaches of trust; .Jesse v. 
 Bennett, l)e G., M. & G. 909 ; 2 Jur. N. S. 
 1425; and trustees will not represent some 
 of the cestui que trusts in any contention 
 inter se, Ilamond v. Walker, 3 .Jur. N. S. 
 686, V. C. W. ; Payne v. Parker, L. R. 1 
 Oh. Ap. 327; 12 Jur. N. S. 221, L. JJ.; 
 or wherever the trustees' personal interest 
 might prevent them from protecting the 
 interests of the cestui que trusts; Read v. 
 Prest. 1 K. & J. 183; Pavnc v. Parker, L. 
 R. 1 Ch. Ap. 327; 12 Jur. N. S. 221, L. JJ; 
 and where a bill was filed to set aside a 
 settlement, it was held that some of the 
 persons beneficially interested thereunder 
 ought to be parties; Read v. Prest, 1 K. & 
 J. 183. 
 4 See Guthrie v. Morrell, 6 Ire. Eq. 13.
 
 PERSOXS RESISTING PLAINTIFF'S DEMANDS. 257 
 
 been dispensed with.^ Tims, where upon a bill broiiglit against an Ch. V. § 2. 
 assignee of a lease to compel him to pay the rent, and perform ' « ' 
 tlie covenants, it appeared that the assignment was iipon trust for 
 such as should buy the shares, the whole being divided into 900 
 shares, and an objection was taken because the shareholders were 
 not parties; the objection was overruled, as the assignees by diAdd- 
 ing the sliares, had made it impracticable to have them all before 
 the Court.^ Formerly, the general rule, in cases where real estates 
 were either devised or settled upon trusts for payment of debts or 
 legacies, was, that if the persons to be benefited by the produce of 
 the estate were either named or sufficiently indicated, then that 
 they must be all parties to any suit affecting the estate ; if, how- 
 ever, the bill alleged their great number as a reason for not making 
 them all ])arties, and if the Court were satisfied that the absentees 
 were sufficiently represented by those who were made parties to 
 the record, the presence of all the persons interested would be dis- 
 pensed with ; ^ and upon the same princii)le, where the trusts were 
 for the payment of debts or legacies generally, the trustees alone 
 were allowed to sustain the suit, either as plaintiflTs or defendants, 
 without l)ringing before the Court the creditors or legatees for whom 
 they were trustees ; * and now it is conceived that the Coui't would, in 
 such cases, generally allow the suit to proceed without any of the 
 cestui que trusts being made parties, considering their interests to 
 be sufficiently represented by the trustees ; ^ except where it might 
 require some of the cestui que trusts to be parties, in order to secure 
 the application of the trust money.*' 
 
 We have already seen, that the 30th Order of August, 1841, did In cases of 
 not a]>ply to cases where a mortgagee soughtto foreclose the equity ^^'^'^ °^^^^' 
 of redem]»tion of estates vested in trustees,'^ but that under the rule 
 of the late Act above referred to, where the trustees are the persons 
 who would be in possession of funds to redeem, they may properly 
 represent their cestui que trusts y * thovigh, when this is not the case, 
 the cestui que trusts^ or some of them, ought to be parties.^ 
 
 Formerly, in such cases, the cestui que trusts were necessary In suits for 
 parties ; ^° but to a suit for the execution of a trust by or against pajMii^ prior 
 ihose claiming the ultimate benefit of sucli trust, after the satis- t^^ii-iig'i'*; 
 
 1 Scc;jo/if, 2G6. " Stan«fiel<l v. Ilobson, IC Be.-iv. 189. 
 
 2 City of Loniion »". Kiehmond, 2 Vorn. " See Wilton v. Jones, 2 Y. & C 244. 
 421. N". 15. In that case tiic orij^iiial lessee " llaninau v. Kiiey, t) Hare App. 40; 
 was ronniilered a necessary |)arty. Story Siile v. Kitson, 3 De G., M. & G. 119; 17 
 Kq. I'i. §118. Jur. 170. 
 
 « Uoifiuiil r. Baker, 3 Hare, 08; Harri- » Goidsmid r. Stoneliower, 17 Jur. 190; 
 
 Fon )•. Stewiirdson, 2 IIare,.03O; see Slorv 9 Ilnre Ai)p. 38; Davis v. Hemingway, 29 
 
 Yj\. I'i. § 150; Joiinson v. Candage, s'l Vt. 438. 
 
 Maine, 28. w Osboum v. Fallows, 1 U. .& 1\I. 741; 
 
 < I,d. lied. 174; see Stevenson v. Austin, Calverley r. I'help, <j Ma(i. 229; laithful v. 
 
 3 Mi't. 474, 480. Hunt, 3 Anst. 751; Newton r. ICarl of 
 
 f' 15 & IG Vic. c. 86, § 42, r. 9; Morley Kguiont, 4 Sim. 574, 5H4 ; 5 Sim. 130, 136; 
 
 V. Morley, 25 I'.eav. 253; and see Knight Coles v. I'orrest, 10 Uuav. 552, 057; Story 
 
 V. Pocock, 24 Beav. 436. Kq. I'I. §§ 206, 207. 
 VOL. I. 17
 
 258 
 
 OF PARTIES TO A SUIT. 
 
 Where sub- 
 sequently 
 ascertaiued. 
 
 All interested 
 in money 
 secured by 
 mortgage, 
 necessary 
 parties; 
 
 laotioii of prior rliMrui^s, it was not nccessaiy to l>riiiy; boforo tlio 
 Court tl>o persons (.•lainiinLi' tlii' lu'iu'lil of such prior charges; and, 
 therefore, \o a bill for ajuilieatiou of a surphis, afler pnyiuciit of 
 debts and legacies, or other ineumbrances, the creditors, legatees, 
 or other iiiemnbraneers, need not be niade parties. And pei-sons 
 having demands prior to the creation of such a trust, might enforce 
 these demands against the trustees, without bringing before the 
 Court the persotis interested wilder the trust, if tlie absohite dis- 
 position of the property was vested in the trustees. But if the 
 trustees had no sucli power of disposition, as in the case of trustees 
 to convey to certain uses, the persons claiming the benetit of the 
 trust must also be parties. Persons having specific charges on the 
 trust property were also necessary parties ; but this would not 
 extend to a general trust for creditors or others, whose demands 
 were not specified in the creation of the trust, as their number, as 
 well as the difficulty of ascertaining who may answer a general 
 description, might greatly embarrass a prior claim against a trust 
 property.^ 
 
 Where, however, the demands and names of the creditors, al- 
 though not actually sf)ecified at the time of the creation of the 
 trust, were svibsequently ascertained by their signing a schedule 
 to the conveyance, they became necessary parties; thus where a 
 plaintiff claiming an annuity charged upon an estate which had 
 subsequently been demised to trustees for the benefit of such of 
 the grantee's creditors as should execute the conveyance, filed a 
 bill, against the grantor and the trustees, and one of the creditors 
 who had executed the deed, and who had obtained a decree in an 
 original suit, instituted by him on behalf of himself and all other 
 the creditors under the trust deed, praying an account of what was 
 due to him, and that the priorities of himself and the other cred- 
 itors might be ascertained, and that he might redeem the securi- 
 ties which Avere prior to his own, and have the benefit of the decree 
 as to that part of the demand for wliicli he should not be entitled 
 to priority over the trust deed ; it was held by the V. C. of England, 
 that all the creditors who had executed the trust deed Avere neces- 
 sary parties ; and that, as it was stated in the bill that several of the 
 creditors had executed the deed, and only one was made a party, the 
 defect appeared sufticiently on the face of the bill to entitle the 
 defendant to take advantage of it by demurrer.'^ 
 
 Where the money secured by a mortgage was subject to a trust, 
 a mortgagor, or any person clahning under him, seeking to redeem 
 the mortgage, must make all persons claiming an interest in the 
 
 1 Ld. Red. 175; Story Eq. P). § 216. for an account of thie fund without making 
 
 2 Newton r. Earl of Egmont, 4 Sim. 574; all creditors who arc preferred, and all in 
 vuh edfnn, 5 Sim. 130, S. C. S. 1'.; Story the same class with him, parties, either as 
 Eq. I'l. §§ 133, 149. One creditor secured plaintiff's or defendants. Murphy u. Jack- 
 in a deed of trust, cannot maintain a bill son, 5 Jones Eq. (N. C.) 11.
 
 PERSOXS RESISTIXG PLAINTIFF S DEMANDS. 
 
 259 
 
 mortgage money parties to the suit. Thus, where it appeared that 
 the parties against wliom the redemption was prayed were trustees 
 for a woman and her children, the Lord Chief Baron held, that the 
 cestui que trusts were necessary parties to the suit, although under 
 the peculiar circumstances of the case, and to aAoid delay and ex- 
 pense, he recommended that a petition should be presented on their 
 behalf, praying that their interests might be ^jrotected, and directed 
 the cause to stand over for that purpose.^ And in general it Avas 
 laid down as a rule, that there could be no foreclosure nor redemp- 
 tion unless all the parties entitled to the mortgage money were 
 before the Court.^ Therofoi'e, where a mortgagee had assigned the 
 mortgage upon certain trusts for the benefit of his family, the mort- 
 gagee, the trustees, and the cestui que ti-usts, were considered neces- 
 sary parties to a bill to redeem.^ And so where a mortgage term 
 had been bequeathed to trustees, upon trust, to sell and apply the 
 produce among the testator's twelve cliildren and a grandchild 
 7iominatim ; it was held, that all the cestui que trusts, interested 
 in the produce of the terra, were necessary parties, although they 
 were numerous, and the property small, and although the trustees 
 had power to give a discharge to purchasers.* 
 
 Now, however, it has been held, that in a redemj)tion suit, where 
 the mortgage money is vested in trustees, the trustees represent the 
 cestui que trusts sufficiently to protect the mortgagor ; but that some 
 of the cestui que trusts ought also to be parties, in order to secure 
 tlie due application of the trust property.'' 
 
 It was said by Lord Ilardwicke, that where a mortgagee, who has 
 a plain redeemable interest, makes several conveyances ui)on trust, 
 in order to entangle the affair, and to render it difficult for a mort- 
 gagor, or his representatives, to redeem; it is not necessary that 
 the plaintirt* should trace out all the persons wlio have an interest 
 in such trust, to make them parties : the persons having the legal 
 estate, however, must be before the Court, and where a mortgagee 
 in fee lias made anal)solute conveyance with several limitations and 
 remainders over, the decree cannot be complete Avitliout bringing 
 before the Court, at least the first tenant in tail, and those liaving 
 
 Ch. V. § 2. 
 
 but their 
 trustees now 
 protect the 
 mortgagor. 
 
 Where mort- 
 gagee assigns 
 to embarrass 
 mortgagor in 
 redeeming. 
 
 1 Drew I'. Harinaii, 5 Price, 319; Story 
 Efi !'!.§§ iy'2, 208. 
 
 2 I'ahner v. Karl of Carlisle, 1 S. & S. 
 423; Story Ka. I'l. 1>^2, ct scj. ; Large c. 
 Vail Doreii, 1 Mcf"art(;r( N. .).),20H; Heals 
 V. Col)l), 'j I Maine, 348 ; ( >-<l)ourn v. I'allows, 
 1 it. & .M. 741 ; Me Call )•. Yard, 1 Stockt. 
 (N. .J.) 3'.8; 4 K.nt (Ulli ed.), 185. 
 
 The general rule is, that all persons 
 materially interested in tiie niorti;age, or 
 mortgaged estate, ought to be made par- 
 ties to a bill of forecloHure. This will or- 
 dinarily incliiile thrt heir, or devixee, or 
 assignee, and ])Crsonal representatives of 
 the mortgagor, and also the tenants for life 
 
 and tin; ri^niainler-man, for tlicy all may 
 be interesti-d In the right of redeni|)tion, ur 
 in taking the accounts. 4 Kent (lllli td ), 
 185, 18G. 
 
 a Wetherell v. Collins, 3 Mad. 255; Story 
 Eq. I'l. § 192. 
 
 ■' Oslx.inn v. Tallows, 1 F{. i\: M. 741. 
 
 '■' Stansfield c. Ilobson, li! Heav. 189; see, 
 however, Murley v. Morley, 25 Hi'av. 253; 
 and iMiiinet v. Tottenliaiii, 10 .hir. N. S. 
 1090; S. (;. 71(11)1. Totteiiham r. ICmmet, 13 
 AV. K. 123, .M. U., where a per.-on interested 
 in [lart of the nnirtgage was held not to be 
 a necessary party.
 
 260 
 
 OF PARTIKS TO A SUIT. 
 
 Cn. V. § 2. 
 
 Mortgagee 
 unnecessary 
 where 
 mortgage 
 Rssigaed ; 
 
 iiilcniu'iliato cstatos.^ It sooiiis that win'iv a iiuirti;'aL!;o is forfeited, 
 and iho mi»i-to'anve oxercises the legal rights he has acciiiired by dis- 
 jiDsiiig o\\ or eiK-unihering the estate, and the mortgagor comes for 
 the veilemptioii, whieh a C\)urt of Equity gives him, it must he upon 
 the terms t)f iudeiuuifying the mortgagee froui all costs arising out 
 of his legal acts; upon this principle, Sir John Leach, in the case of 
 IVetAerell v. Collins^- above referred to, ordered the mortgagor to 
 pay the costs of the trustees, and cestui que trust, who were neces- 
 sarily brought before the Court in consequence of the assignment 
 of the mortgagee. 
 
 It seems formerly to have been considered necessary, that a 
 mortgagee, who had assigned his mortgage, should be made a party 
 to a bill of redem})tion ; ^ but the law upon the point appears now 
 to be otherwise ; * and it has been determined, that where there has 
 been an assignment, even though it was made Avithout the j^revious 
 authority of the mortgagor, or his declaration, that so much is due, 
 the assignee is the necessary party ; ^ for whatsoever the assignee 
 pays without the intervention of the mortgagor, he can claim noth- 
 ing under the assignment but what is actually due between the 
 mortgagor and mortgagee.® Where a mortgagor is a party to an 
 assignment of a mortgage by the mortgagee, then it is in fact a 
 new mortgage between the mortgagor and the assignee, and of 
 course the original mortgagee is not a necessary party to a bill to 
 redeem. A mortgagor, however, cannot be bound by any transac- 
 tion which may take place between a mortgagee and his assignee 
 ■u-ithout his privity ; if, therefore, the mortgagee, before assignment, 
 has been in possession, and has received more on account of the 
 rents and profits than the principal and interest due upon the 
 
 a party to sucli a bill. Beals v. Cobb, ubi 
 supra. So where a mortgagee of land who 
 has assigned his interest in tiie mortgage 
 since the breach of the condition, ma}' be 
 included as a dofendMnt in a bill to redeem ; 
 especially if it appears that he is interest- 
 ed in the taking of the account. Doody v. 
 Pierce, Allen, 141. Where a mortgage 
 was assigned to secure a loan made to the 
 assignor, the assignor was held to be a 
 necessary party in a suit commenced by 
 the assignee, lo foreclose the mortgage, al- 
 though the assigtnnent was absolute in 
 terms, and expressed the payment of a 
 full consideration. Kettle v. Van Uyck, 1 
 Sandf. (N. Y.) 7G; I5rown ?;. Johnson, 53 
 Maine, 240; Ilobart v. Andrews, 21 Pick. 
 527; (mle, 198, note. Where a mortgagor 
 has assigned all his interest in the estate 
 mortgaged, he is not a necessary party to 
 a bill in p^quit}' to redeem by the assignee. 
 Bailey v. Myrick, 36 Maine, 50; Williams 
 V. Smith, 49 .Maine, 564 ; Hilton v. Lothrop, 
 46 Maine, 297. 
 
 '' Chambers v. Goldwin, 9 Ves. 265; see 
 Matthews v. Walwyn, 4 Sumner's Ves. 118, 
 note (a). 
 
 1 Yates V. Hamlv, 2 Atk. 238; Story Eq. 
 PI. §§ 144-146, 194, 198. 
 
 2 "3 M-,id. 255. 
 
 3 Anun., in the Duchy, 2 Ex. Ca. Ab. 
 694, ri. 3. 
 
 ■* The assignee of a mortgage, who has 
 parted with all his interest, and has never 
 made himself liable for rents and profits, 
 should not be made a party to a bill to re- 
 deem the premises, unless he is charged 
 ■with fraud or collusion, or a discovery is 
 sought from him. Williams v Smith, 49 
 Maine, 564. But the mortgagee is a neces- 
 sarj' party to a suit to reform a mortgage 
 deed, brought by a [lurchaser at a sale l)y 
 the mortgagee. Haley v. Bagley, 37 Mo. 
 363. 
 
 6 Chambers v. Goldwin, 9 Vesey. 269. 
 Where a mortgage has been absolutely 
 assigned, it is not necessar}' to make the 
 mortgagee a party to a bill brought by the 
 mortgagor to reileem. Whitney t'. M'Kin- 
 ney, 7 John. Ch. 144; Beals v. Cobb, 51 
 Maine, 348. But where the mortgagee has 
 merely given to another a quitclaim deed 
 of the mortgaged premises, without assign- 
 ing the mortgage debt, he must be made
 
 PERSONS RESISTIXG PLAINTIFF'S DEMANDS. 261 
 
 mortgage, and a bill is filed by the mortgagor against the assignee Ch. V. § 2. 
 
 to have an account of the overplus, he may make the mortgagee a **- — y~— ' 
 
 party to the bill, because he is clearly accountable for the surplus but may be 
 
 rents and profits received by himself^ But upon the principles accdunt^for 
 
 laid doAvn by Lord Eldou, in the precedins: case,- it would seem, rents re- 
 
 . . o ' ' ceived. 
 
 that even in that case the assignee only would be sufficient, be- 
 cause, having contracted to stand in the place of the original mort- 
 gagee, he has rendered himself liable to have the account taken 
 from beginning to end, and must be answerable for the result. 
 From the same case it appears, that although there may have been 
 twenty mesne assignments, the person to whom the last has been 
 made is the only necessary party to a redemption suit.^ 
 
 Where, however, there are several derivative mortgages, if the Derivative 
 mortgagor seeks to redeem the first, he must make all the subse- n^ortgagees. 
 quent mortgagees parties, because they are all interested in the 
 account.'* 
 
 Tlie rules regulating the practice of the Court as to cestui que Persons 
 trusts being parties to suits relating to trust property, apply to re- ^"*'',!?'^ ^'^ 
 suiting trusts as well as others. Thus, where there is a grant or trusts; 
 devise of a real estate, either by deed or will, and the whole equi- 
 table interest is not thereby granted or devised, there will be a 
 resulting trust for the grantor or his heir ; ^ and in such case it will 
 be necessary, in a suit relating to that estate, to bring the grantor 
 or his heir before the Court. 
 
 Upon this principle it has been held, that in cases of charities, heir of 
 where a private founder has appointed no visitor, his heir-at-law is F'?"'"'' \° 
 considered a necessary party to an information for the regulation for charities, 
 of the charity, because in such case the heir-at-law of a private 
 founder is considered as the visitor. But in a case of this descrip- 
 tion the Court refused to dismiss the information because of his 
 absence, and directed an inquiry for him to be made by the Mas- 
 ter;*^ and so in the case of a charity, wherever it is doubtful 
 whether the heir is disiidierited or not, he must be a i)arty.' 
 
 1 Heals V. Cobb, 51 Maine, 348, 350; 473; Hill v. Adams, 2 Atlc. 39; Bishop 
 .Stor\' Kq. I'l. § I'JO; Hryiint r. Krskine, '>5 of Wiiicliester v. Beavor, 3 Ves. 315, 316; 
 Maine, 153, 158. All p'rr.soiis who liHve ante, 194. 
 
 been so connected with the mnrtfjages of * Ilobart )'. Abbot, 2 P. Wnis. C93, niite, 
 
 a railro;id .sou(,'lit to be redeemed, us to p. 194, and notes; 210 and luite^; Kettle 
 
 render them lialde f'lr income under it, v. V;in D^'ck, 1 Sandf. (N. Y.) 70; Stoiy 
 
 should be nride jiartics det'eiidnnt. Ken- Kq. I'l. § 191; Stone v. Burtlett, 46 Maine, 
 
 neliec and i'orthuid R.K. Co. i». I'orflami 438. 
 
 and Kennebec H.U. Co., 54 Maine, 173; Ripley i^. Waterworlh, 7 Sumner's Ves. 
 
 but see Lennon v. I'orter, 2 Gray, 473, 425, Perkins's n'lte (<■), iin I ca>-es rited ; 2 
 
 where it was held that a mesne assignee of Stor}' Kq. .hir. § 1196 et .w/., an<l nciti's; 
 
 the mortLMKi' is not a pro[)er party to a Scott r. I'cnhoulctt, 1 Bro. C. C. (Perkins's 
 
 bdl ti> redccoi, if he has never recidvi-d any ed.) 70, note W)- 
 
 rents and protit-; nor, it seems, if he lias. 6 Attorncy-Ueneral v. Gaunt, 3 Swan, 
 
 2 ( ;hamlMTs V. ( ioldwiii, 9 Ve«. 268, 269. 148, n. 
 
 3 ChMinbers r. (;.>ldwin, 9 Ves. 208; 7 Attorney-General ?i. Green, 2 Hro. C. 
 Story Kq. PI. § 189; Bryant ». Krskine, 65 C. 495; see ante, p. 229; Onler XX.Xl. 
 Maine, 163, 158; Lennon r. Porter, 2 Gray, August, 1841; see Story Eq. Pi. § 180.
 
 102 
 
 OF PARTIES TO A SUIT. 
 
 Cii. V. 5 2. 
 
 where juris- 
 diction drawn 
 from Courts 
 of Law; 
 
 to establish 
 a custom, 
 
 or a modus. 
 
 Where owner 
 of inheritance 
 notnecessary. 
 
 In suits to 
 settle boun- 
 daries ; 
 
 AVhorovor a real cstali' is to 1)C recovt'ro<l, or n right is sought 
 to he ostahlishoil, or a charge raised against real estate, it is neces- 
 sary that tlie person or persons entith'd to the inheritance shouhl 
 be before the Court.^ Upon this i)rineiple it is, that in n bill by a 
 specialty creditor, to obtain payment of liis demand out of the real 
 estate of his debtor, the heir, as well as the executor, is a necessary 
 l)arty.- Where, however, the arrears of an annuity, charged u])on 
 real estates, are sought to be recovered, if the arr(>ars are such only 
 as were due in the lifetime of the ancestor, it will be sufticient to 
 make his personal representative a party, but for any arrears after 
 his death, the heir must be a party .^ 
 
 The same rule applies to all cases where the jurisdiction is drawn 
 from the Courts of Common LaAV, in order to establish a right 
 against a person having a limited estate in land or other heredita- 
 ments ; and it is in such cases always held necessary to have the 
 owner of the inheritance before the Court. Thus, Avhere a bill was 
 filed to establish a custom whereby the owners and occupiers of 
 certain lands were obliged to keep a bull and a boar for the use of 
 the inhabitants of the parish, it was held that a custom which binds 
 the inheritance of lands can never be established in a Court of 
 Equity unless the owners of the inheritance are parties, and that 
 the master and fellows of Queen's College, who were the owners, 
 ought to have been there.* And so, where a man prefers a bill to 
 establish a modus against a lessee of an impropriator, he must 
 make the owner of the impropriation a party.^ Upon the same 
 principle, where a bill was filed to establish a modus against an 
 ecclesiastical rector or a dean and chapter, as impropriators, the 
 ordinary and patron were considered necessary parties.® 
 
 It is to be observed, that, to render the owner of the inheritance 
 necessary, the object of the suit must be to bind the inheritance ; 
 if that is not the case, and the relief sought is merely against the 
 present incumbent, the owner of the inheritance, if made a party, 
 may demur.'' 
 
 In the case of Perm v. Lord Baltimore,^ which was a suit for a 
 
 1 See Xew England, &c., Bank v. New- 
 port Steam Factory, 6 U. I. 154. 
 
 '- But where the hill is filed by the credit- 
 ors for the [lurpose of making tlicir debts 
 out of real estate specifically charged by 
 the testator with the payment of them, 
 the heir-i-at-law are not necessary parties. 
 Smith V. Wycoff, 11 Paige, 49. But in such 
 a case, all "the creditors, whose debts are 
 charged upon the land, slioulil l)e made par- 
 ties if they are named in the will, and wliose 
 debts are still due. Ibid. 
 
 3 Weston V. Bowes, 9 Mod. 809 ; Story 
 Eq. PI. § 181. 
 
 4 Spendler v. Potter, Bunb. 181. 
 
 6 Glanvil v. Trelawney, Bunb. 70. 
 
 6 Gordon v. Simpkinson, 11 Vcs. 509; 
 Cook V. Butt, 6 Mad. 53; Hales v. Pom- 
 fret, Dan. 142; De Whelpdale t;. Milburn, 
 5 Pi-i. 485. 
 
 V Williamson v. Lord Lonsdale, Dan. Ex. 
 171; Markham v. Smith, 11 Pri. 12G; and 
 see further, as to suits relating to tithes, 
 Day V. Drake, 3 Sim. 64, 82; Petch v. Dal- 
 ton, 8 Pri. 9; Leathes v. Newit, 8 Pri. 562; 
 Bennett v. Skeffington, 4 Pri. 143; Tooth 
 V. The Dean and Chapter of Canterbury, 
 3 Sim. 49; (Jutlibertr. Westwood, Gilb. ]']n. 
 PiPp. 230; 16 Vin. Ab. Partv, B. 265, PL 
 58. 
 
 8 1 Ves. Sen. 444, 449.
 
 PERSONS RESISTING PLAINTIFF'S DEMANDS. 263 
 
 specific performance of an agreement respecting the boundaries of Ch. v. § 2. 
 
 two provinces in America, it was considered unnecessary to make ^^ > ' 
 
 the phmters, tenants, or inhabitants within the districts, parties to 
 the suit. The objection taken was upon the ground tliat their 
 privileges, and the tenure and law by which they held, might not 
 be altered Avithout their consent ; but Lord Hardwicke overruled 
 the objection, saying, " Consider to what this objection goes ; in 
 lower instances, in the case of manors and honors in England 
 which have different customs and by-laws frequently ; yet, though 
 different, the boundaries of these manors may be settled in suit 
 between the lords of these manors without making the tenants 
 parties, or may be settled by agreement, which this Court will 
 decree, without making the tenants parties ; though in case of 
 fraud, collusion, or prejudice to the tenants, they will not be 
 bound." 
 
 And in general, it may be stated as a rule, that occupying tenants in suits for 
 under leases, or other persons claiming under the possession of a ^''"^' 
 ])arty whose title to real property is disputed, are not deemed nec- 
 essary parties ; though if he had a legal title, the title which they 
 may have gained from him cannot be ])rejudiced by any decision 
 on his rights in a Court of Equity in their absence ; and though, if 
 his title was equitable merely, they may be affected by a decision 
 against that title. Sometimes, however, if the existence of such decree with- 
 rights is suggested at the hearing, the decree is expressly made ^"die'^n"*h^^ 
 without prejudice to those rights, or otherwise qualified according of others? 
 to circiunstances. If, therefore, it is intended to conclude such 
 rights by the same suit, the persons claiming them must be made 
 parties to it; and where the right is of a higher nature, as a mort- 
 gage, the person claiming, as we have seen, is usually made a jiarty.^ 
 And where a tenant in common had demised his undivided share Lessee, when 
 for a long term of years, the lessee was held a necessarv i)artv to a ^.".m!!"^ 
 bill for a partition, iK'cause he must join in the eonvevance, and Jiis cases of par- 
 
 I 1 1 i 1 • i •' " tition. 
 
 lessor was ordered to ))ay his costs.- 
 
 Tlie sanu' pi-iiiciplc uliidi rcndci's it necessaiy that the owiu'r of Lord of the 
 
 tlie iidieritance should be l)efore the Coui't, in all casi's in wliich a "^'"s^an' 
 
 right is to be established against the inheritance, requires that, in if <i"f''=''"" '« 
 
 , , . T ' 1 1 1 1 ■ , . whether land 
 
 cases wliere tiiere is a dispute as tu wliethcr land in the occupation is copyhold; 
 
 of a defendant is freeliold or copyliold, the loid of llu' manor 
 
 sliould be a party. 'I'hus, where ;i plaint ill", l»v his hill, jnctended 
 
 a title to cei-tain lands as i'reeliold, whicli lands the detendant 
 
 claimed to bold by copy of Court roll to him and his heirs, and 
 
 prayed in aid the lor<l of the manor, lint ne\ crtheli'ss, the |ilaiiililV 
 
 1 Ld. Hed. 175. hefore he deiiii.seil it, mid conliiuM'd aCler- 
 
 2 Cornish v. Gi-Ht, 2 Cox. 27. A JMnd- wards, witliout joining liis tenani as a co- 
 lord cannot maintain a bill in Iviuity to plaintiff. Ingraliam r. Oimnell, 5 Hut. 118. 
 suppress a nuisance caused to his property
 
 IG4 
 
 OF TARTIES TO A SUIT. 
 
 cii. V. § •:. 
 
 and in suits 
 for a 8um.'ii- 
 iliT of copy- 
 holds for 
 livos; 
 
 .S( (•".■.■, of in- 
 heritance. 
 
 Persons en- 
 titled under 
 limitations in 
 settlement; 
 
 first tenant in 
 tail neoes- 
 sar}% in suits 
 conceniing 
 realty, 
 
 either to fore- 
 close, 
 
 or to charge ; 
 
 when not in 
 question be- 
 tween vendor 
 and pur- 
 chaser. 
 
 scrvoil tlio (loreiiilant witli process to rejoin, Avitliout making the 
 lord of the manor a |iarty ; it was ortlered, that the plaiiitift' should 
 proceed no more against the defendant before he shoidd have called 
 the lord in process.^ 
 
 For a similar reason it is held, that where a bill is brought for 
 the surrender of a copyhold for lives, the lord must be made a 
 party ; because, when the surrender is made, the estate is in the 
 lord, and he is under no obligation to regrant it ; but it is other- 
 wise in the ease of co])yholders of inheritance, there the lord need 
 not be a party. 
 
 It may be observed in this place, that the same rule which has 
 been before laid down,'^ with regard to the persons to be made 
 parties as being interested in the inheritance of an estate, ])revails 
 equally in the case of adverse interests, as in that of concurrent 
 interests with the plaintiffs. This rule is, that wherever the inheri- 
 tance to a real estate is the subject-matter of the suit, the first 
 person in being who is entitled to an estate of inheritance in the 
 property, and all others having intermediate interests must be 
 defendants. Thus it is held necessary, in order to obtain a com- 
 plete decree of foreclosure, in cases where the equity of redemption 
 is the subject of an entail, that the first tenant in tail of the equity 
 of redemption should be before the Court.^ 
 
 It appears to have been held formerly, that a decree of fore- 
 closure against a tenant for life would bar a remainder-man,* but 
 it is now settled, that not only the tenant for life, but the person 
 haA-ing the next vested estate of inheritance, must be parties;^ 
 and the same rule api)lies to all cases where a right is to be estab- 
 lished, or a charge raised against real estates which are the stibject 
 of settlement. 
 
 A plaint ift', however, has no right to bring persons in the situa- 
 tion of remainder-men before the Court in order to bind their 
 rights, upon a discussion whether a ]irior remainder-man, under 
 whom he claims, had a title or not, merely to clear his own title as 
 betAveen him and a purchaser. This was decided in Pelham v. 
 Gregory,'^' before Lord Northington ; in which case the question 
 arose on the title to certain leasehold estates, which were limited 
 in remainder, after limitations to the Duke of Newcastle and his 
 sons, to the first and other sons of Mr. Henry Pelham in tail, and 
 
 1 Cited in Lucas v. Arnold, Gary. Rep. 
 81; 16 Vin Ab. tit. Pnrty. H. 253;" PI. 46. 
 
 2 Ante, pp. 219, 220, aiid cases cited. 
 
 8 Kevn"idson v. Perkins, Ami). 564; 
 Story ]':ri PI. §§ 144, \W; and see Pendle- 
 ton V. Hooth. i"Giff. 35; 5 .Jur. N. S. 840. 
 
 * Roscairick v. J5afton. 1 Cii Ch. 217; 
 but it may be doubted whether, in this 
 case, it was intended to lay down such rule. 
 
 5 Sutton V. Stone, 2 Atk. 101. If the 
 mortgage consi.sts of a reversion or re- 
 mainder, subject to an estate for life, it 
 may be foreclosed ; but the estate of the 
 tenant for life would not be affected, and 
 he would huve no interest in the foreclo- 
 sure. Penninian ?'. Hollis, 13 Man. 429. 
 
 6 1 Eden, 518; 5 Bro- P. C 435, S. C.
 
 PERSONS EESISTENG PLAINTIFFS DEMANDS. 
 
 205 
 
 to Avhicli the plaintiiF, Lady Catherine Pelhain, chiimed to be abso- 
 lutely entitled on the death of the Duke, as administratrix to 
 Thomas PeUiam, the son of Mr. Henry Pelham, the first tenant in 
 tail who had come into being. The plaintiif, in order to have this 
 question decided against Lord Vane and Lord Darlington, who 
 were subsequent remainder-men in tail, contracted to sell the es- 
 tate, subject to the Duke's life-estate, and to the contingency of his 
 having sons, to the defendant Gregory, and brought a bill against 
 him for a specific performance, to which she made Lord Vane and 
 Lord Darlington parties ; but Lord Xorthington dismissed the bill 
 with respect to Lord Vane and Lord Darlington, and the reason 
 his Lordship gave for dismissing the bill against the two latter, as 
 expressed in his decree, was, " that they being remainder-men after 
 the death of the Duke of Newcastle, if he should die A\'ithout issue, 
 their claims were not AWtliin his cognizance to determine, and the 
 plaintifi" had no right to bring them into discussion in a Court of 
 Equity." From this decree there Avas an appeal to the House of 
 Lords, and although tliey decreed Gregory to perform his contract, 
 they aflirmed the dismissal against Lord Vane and Lord Darling- 
 ton.^ In Devonsher v. Neioenham^ Lord Redesdale, after stating 
 the above case and decision, says, " I take this to be a decisive au- 
 thority, and if the books were searched, I have no doul)t many 
 other cases might be found where bills have been dismissed on this 
 ground." 
 
 The owner of the first estate of inheritance, however, is suflicient 
 to support the estate, not only of himself, but of everybody in re- 
 mainder behind him ; ^ therefore, where a tenant in tail is before 
 the Court, all subsequent remainder-men are considered umieces- 
 sary parties. This is by analogy to the rule at Law, according to 
 which there is no doubt that a recovery in which a remainder-man 
 in tail was vouched, might bar all remainders behind.* 
 
 But although wliere there is a clear tenancy in tail, there is no 
 occasion for a subsecpxent remainder-man being a party to a bill of 
 foreclosure, yet where it is doubtftxl whether a particular party has 
 an estate tail or not, the person who has the first undoulited vested 
 estate of inlieritance ought to be a party;* and so, where the first 
 tenant in tail was a lunatic, the reiii.'iiiiilir-maii A\as held to be a 
 proper party." 
 
 It is Tu.'cessary, however, in cases of this sort, not oidy that lu', 
 
 Ch. V. § 2. 
 
 1 3 Bro. P. C. ed. Toml. 204. 
 
 2 2 Sch. & Lff. 210. 
 
 8 Hevnoldson r. I'erkiii'', Ami). 564; but 
 thin rule i\w* not apply to a Scotch entail ; 
 Fordyce >;. lirilfjPH, 2 "I'liil. 4;t7, "lO*;; 2 C. 
 P. Coop. t. Cott. 326, .'{.'i4;nnd lis to tlip 
 effect ol a decree against un infant tenant 
 
 in tail, see S. C in the Court below. 10 
 IJoav. 101; lO.Iiir. 1020. 
 
 ^ Per Lord I-'iiloii, in I.lovd r. .lohnes, 9 
 Vcs. 04; s<-e also (iiflMrd i'."lIort, 1 Sch. & 
 Lcf. .^SC; Storv i:(|. I'l. §§ 144, 145. 
 
 « r..wcll Molt. 1175 a. 
 
 'i Singleton r Ilcpkiiw, 1 .Iiir. N. S. 1190 
 
 V. c. s. 
 
 Persons in 
 remainder 
 after first 
 est;ite of 
 inheritance, 
 unnecessary ; 
 
 unless nature 
 of estate 
 doubtful. 
 
 or first tenant 
 in tail a 
 lunatic. 
 
 Intermediate 
 tenants for 
 life.
 
 2G() 
 
 OF PAUTIES TO A SUIT. 
 
 Cn. Y. 5 "2. 
 
 Trustees to 
 preserve, v*\:c 
 
 Executory 
 devisees. 
 
 Intermediate 
 remainder- 
 man coming 
 into beinff 
 after bill tiled. 
 
 Effect of 
 tenant in tail 
 dying during 
 suit, without 
 issue. 
 
 Formerly all 
 persons liable 
 to contribute 
 to plaintiff's 
 claim were 
 necessar}^ 
 
 who lias tlio first estate of inhoritance sliould 1)0 before tlic Court, 
 l)ii( that the intermediate remainder-inen for lile should be parties.^ 
 The same vn\v will, as we have seen before, :>i)i>ly, where the inter- 
 mediate estate is et)iitingeiit or executory, ])rovided the person to 
 take is ascertained; altliough where the person to take is not ascer- 
 tained, it is snflicient to have before the Court the trustees to sup- 
 ])ort the contingent remainders, and the ])erson in esse entitled 
 to the first vested esta,te of iidieritance.- Executory devises to 
 persons not in being may, in like manner, be bound by a decree 
 against a vested estate of inheritance ; Init a jierson claiming under 
 limitations by way of executory devise, not subject to any preced- 
 ing vested estate of inheritance by which it may be defeated, must 
 be a party to a bill affecting his right ; ^ and in general, where a 
 person is seised in fee of an estate, having that seisin liable to be 
 defeated by a shifting use, conditional limitation, or executory de- 
 vise, the inheritance is not represented in Equity merely by the 
 person who has the fee liable to be defeated, but the persons claim- 
 ing in contingency iipon the defeat of the estate in fee are neces- 
 sary parties.* 
 
 If after a cause has proceeded a certain length, an intennediate 
 remainder-man comes into esse, he must be brought before the 
 Court by supplemental bill ; ^ and so, if first tenant in tail, who 
 is made a party to a suit, dies without issue befoi-e the termination 
 of the suit, according to the constant practice of the Court, the 
 suit is proceeded with against the next tenant in tail, as if he had 
 been originally a party ; and this is done by means of a sup])le- 
 mental bill or order.® It seems also clear, that if a tenant in tail 
 is plaintiff in a suit, and dies without issue, the next remainder- 
 man in tail, although he claim by new limitation, and not through 
 the first plaintiff as his issue, is entitled to continue the suit of the 
 fonner tenant in tail by supi)lemental bill, and to have the benefit 
 of the evidence and proceedings in the former suitJ 
 
 The general rule requiring all })ersons interested in resisting the 
 plaintiff's demands to be brought before the Court as defendants, 
 in order to give them an o]ij)oitunity of litigating the claim set up, 
 foiTnerly rendered it imperative, wherever more than one person 
 was liable to contribute to the satisfiiction of the plaintiff's claim, 
 
 1 Per Lord Eldon, in Gore v. Stacpoole, 
 1 Dow. 18, .32; 4 Kent (11th ed.), 18G; 
 Penniman v. Hollis, l:i Mass. 429. 
 
 2 Lord Cholniondeley v. Lord Clinton, 2 
 J. & \V. 7, and 133; Hopkins v. Hopkins, 
 1 Atk. oiJO. 
 
 3 Ld. lied. 174. 
 
 4 Goodessf. Williams, 2 Y. & C. 598; 
 7 Jur. 1123. 
 
 5 Ld. Pied. 174; Per Lord Eldon, in 
 Lloyd V. Jolines, 9 Ves. .'/J; ]'j & 10 Vic. 
 c. 86, §62; Fullerton t'. Martin, 1 Drew. 
 
 238; Pickford v. Brown, 1 K. & J. 643; 
 Jebb V. Tugwell, 20 Beav. 461 
 
 Cresswell v. Pateman, 6 W. R. 220, V. 
 C. K. 
 
 1 Lloyd V. .Johnes, 9 Ves. 59; Story Eq. 
 Pi. §§ 144, 146, and notes; Dendy v. Den- 
 dv, 5 W. K. 221, V. 0. W.; Willijuns v. 
 Williams, W. R. 296, V. C. K.; Ward 
 V. Shakeshiift, 7. Jur. N. S. 1227; 10 VV. K. 
 6, V. C. K; see, however, Lowe u. Watson, 
 1 Sm. & G. 123; Jackson v. Ward, 1 GifT. 
 30; 5 Jur. N. S. 782.
 
 PERSOXS EESISTIXG PLAINTIFF'S DEMANDS. 267 
 
 that they should all have been made parties to the suit.^ This Ch. V. § 2. 
 application, however, of the general rule has been materially modi- 
 fied by the 32d Order of August, 1841,^ which provides that, in all 
 cases in which the jjlaiutifl" has a joint and several demand against 
 several persons, either as j^rincipals or sureties, it shall not be nec- 
 essary to bring before the Court, as parties to a suit concerning 
 such demand, all the persons liable thereto ; but the plaintiff may 
 proceed against one or more of the persons severally liable. 
 
 It will, howevei", be necessary shortly to state what was the Former 
 practice previous to this Order, inasmuch as it will still apply to "^^^^ ^^^' 
 all cases not brought precisely within its terms. In the case of 
 Madox V. JacJcson,^ Lord Hard^\icke said : " The general rule of 
 the Court to be sure is, where a debt is joint and several, the plain- 
 tiff must bring each of the debtors before the Court, because they 
 are entitled to the assistance of each other in taking the account. 
 Another reason is, that the debtors are entitled to a contribution, 
 where one pays more than his share of the debt ; * a further reason 
 is, if there are different funds, as Avhere the debt is a specialty, 
 and he might at LaAV sue either the heir or executor for satisfaction, 
 he must make both jDarties, as he may come in the last place upon 
 the real assets ; ^ but there are exceptions to this, and the excejD- 
 tion to the first- rule is, that if some of the obligors are only sure- 
 ties, there is no jn'Ctence for the principal in the bond to say, that 
 the creditor ought " to bring the surety before the Court, unless he 
 has paid the debt." ® It may here be observed, that by the temis 
 of the Order, no distinction is made, between princii)als and sure- 
 ties, so that it would ap])ear as if the plaintiff inight file his l)ill 
 against one or more of the sureties, without making the principal 
 a party to the suit. In Allen v. Hoxdden^ however, where one of 
 two sureties Avho had joined the princl])al debtor in a bond, filed a 
 bill to set aside the transaction on the ground of fraud, and prayed 
 an account of the payments made in respect of the bond ; Lord 
 Langdale M. R. lield, that notwithstanding the order, the prin- 
 cipal debtor and co-surety were necessary parties. And so, in 
 PirJnts v. Peters,^ wliere the j)laiiitiff alleged that he had accepted 
 bills (if exchange without consideration, and that lie had been sued 
 u])on tlicin, .md by liis bill ]»rayed relief against the drawer and 
 tlie holder, without making a jierson to Aviiom tlie drawer hail in- 
 
 1 Jnckson i: Itiiwlins 2 Vern. 195; « Story Eq. PI. § 1G9. 
 Erickson v. Ncsmitli, 40 N. II. 371; Had- •^ Jhi'l. 
 
 ley t'. Kus'^ell, 40 N. H. 1()!»; see Ferrer v. "^ Uenv. 148; and see also Lloyd v. 
 
 Barrett, 4 .loiios Eq. (N. C.)455; Ilart w. Smith, 13 Sim. 4.'')7; 7 Jiir. 400; I'lerson 
 
 CotFee, 4 .lonis r,.|. (N. C.)321; Young r. Barclay, 2 De G. & S. 74"i. But it .seems 
 
 V. Lyons, H (iill, 102. that <nw oltiic makers of a joint and sev- 
 
 2 (len. Ord. VII. 2. eral fjromis.sorv note miy be sued without 
 8 3 Atk. I'lO; Bland v. Winter, 1 S. & the others. Mclntyre v. Council, 1 Sim. 
 
 S. 240; Collins v. Grillifh, 2 I'. Wm.s. 313. N. S. 225, 241. 
 * Erickson v. Nesmith, 46 N. H. 871. 8 5 Beav. 253, 260.
 
 'i^S OF TARTIES TO A SUIT. 
 
 (^11. V. § '2. (^lorsetl the bill a party, Lord Lauodalc licld, that as there was an 
 ' > alleiration that the liolder of the bills was a trustee as well for the 
 
 drawer as also for the indorsee, sueh intervening indorsee was a 
 neeessary party to the suit. 
 In cases of Before this order it was lield that all trustees implicated in a 
 
 tn;"n' ' breach of trust were necessary parties to a suit coni]ilaining of the 
 Ord.VII. r. 2. breach of trust ; ^ but since the Order it has been held, that Avhere 
 a breach of trust has been committed by several trustees, the cesttii 
 que trusts may proceed against one trustee, in the a))sence of the 
 others.* But it must not be supposed that, in every case in which 
 a breach of trust has been committed, the cestui que trusts can 
 arbitrarily select any one trustee, and charge him as for a breach of 
 trust, whatever the nature of the complaint may be. "Take for 
 example," said Sir James AVigram V. C. in the case of Shipton v. 
 Jiawlitis,^ " the case of one of tAvo trustees acting alone, and re- 
 ceiving the whole trust moneys, and investing them in his OAvn 
 name ; that might be a breach of trust ^:)er se ; for the cestui que 
 t)-iists had a right to i-equire each trustee to have a hold upon the 
 trust fund ; and, if a loss resulted, the non-acting trustee might be 
 liable for it. But if the fund were safe, though irregularly stand- 
 ing in the name of the trustee only, I cannot think this Order 
 would entitle the plaintiff to sue the trustee who had not acted, 
 separately from the other. The case of Walker v. Symonds,^ as 
 explained in Munch v. Cocherell^ shows that all the trustees are, 
 •prima facie, necessary parties to a suit complaining of a breach of 
 trust, although execution might be taken out against one only." 
 There is no clear principle laid down in the cases determining 
 where all the trustees are necessary parties, and where one may be 
 proceeded against without the others. The Court a})])ears rather 
 to have exercised a discretion, and to have allowed the Order to 
 apply or not as, under the circumstances, the justice of the case 
 required.^ 
 
 It is to be observed, hoAvever, that the Order does not ajiply to 
 mere Ord. cjjses whcrc the general administration of the estate is sought : ' 
 
 \n.r. 2. does o . t i s i • 
 
 not apply. nor where accounts of the trust lund have to be taken ; and it 
 
 1 Walker v. Symonds, 3 Swanst. 75 ; C. were required to be parties, see Shipton v. 
 P. Coop. 509-512, 574; Munch v. Cocker- Kawlins, 4 Hare, 619; Fowler v. Kevnal, 
 ell, 8 Sim. 219, 231; C. 1'. Coop. 78; n. 2 De G. & S. 749; 13 .Jur. 650, n.;" and 
 (d); Perr^' v. Knott, 4 Beav. 179; 181. see Reporter's note, 24 I5eav. 99; Lewin v. 
 
 2 Perrv w. Knott, 5 Beav. 293: Kellaway Allen. 8 W. K. 603, V. C. W. 
 
 V. John?on, 5 Beav. 319; 6 Jur. 751; At- 7 Hall v. Austin, 2 Coll. 570; 10 Jur. 
 
 tomey-Guneral v. Corp. of Leicester, 7 452; Biggs v. Penn, 4 Hare, 469; 9 Jur. 
 
 Beav. 176; Strong v. Strong, 18 Beuv. 368; Chancellor v. Morecraft, 11 Beav. 
 
 408; Attorney-General v. Pearson, 2 Coll. 262; Penny v. Penny, 9 Hare, 39; 15 Jur. 
 
 581; 10 Jur. 651; Norris v. Wright, 14 445. 
 
 Beav. 310. ^ Devaj'nes v. Roljinson, 24 Beav. 86; 
 
 8 4 Hare, 623. 3 Jur. N. S. 707; Coppard v. Allen, 10 
 
 * 3 Swanst. 75. Jur. N. S. 622; 12 W. H. 943, L. JJ.; 2 
 
 e 8 Sim. 219, 231. De G., J. & S. 173; and see Fletcher v. 
 
 ' For cases in which all the trustees Gibbon, 23 Beav. 212.
 
 PERSONS RESISTING PLAINTIPF S DEMANDS. 
 
 269 
 
 has been held, that "where one trustee files a bill against a co-trus- 
 tee M-ho has been guilty of a breach of trust, in which some of the 
 cestui que trusts have concuiTed, they are necessary parties not- 
 withstanding the Order.^ So, also, in a suit for the recovery of a 
 partnership debt, against the executors of a deceased partner, the 
 surviving partner is a necessary party.'^ And it is also to be ob- 
 served, that where the plaintiff has made several persons jointly 
 liable parties, he cannot afterwards waive the rehef against some, 
 and take a decree at the hearing against others.^ 
 
 The Order does not apply to any case where the demand is not 
 joint and several ; and, therefore, where there is only a joint 
 demand, the old practice continues, and all the persons liable 
 must be made j^arties. Thus, if there be a demand against a 
 ]>ai-tnership firm, all the persons constituting that firm must be 
 before the Court ; and if any of them are dead, the representatives 
 of the deceased partners must be likewise made parties.* And 
 where a bill was filed by the captain of a ship, against the personal 
 representative of the sur\'ivor of two partners, who were joint 
 owners of the ship, for an account and satisfaction of his demand, 
 it Avas held that the suit was defective, because the representatives 
 of the other partner, who might be interested in the account, 
 were not before the Court ; although, as the demand would have 
 survived at Law, the case there might have been different.® 
 
 Although, even before the 32d Order of August, 1841,*' it Avas 
 not generally necessary, in a suit against the ])rinci])al, to make 
 the surety a party, yet, Avhcre a person had executed a conveyance, 
 or created a chai-ge upon his own estate, as a -collateral security 
 for another, he became a necessary party to a suit against the 
 princii)al. This appears to have been the result of the detennina- 
 
 Ch. V. § 2. 
 
 Old practice 
 continues 
 wlicre de- 
 mand is only 
 joint; 
 
 cases of part- 
 nership. 
 
 Owner of 
 estate 
 charjjod as 
 collateral 
 security, 
 necessary- 
 party to 
 bill against 
 principal ; 
 
 1 .Tesse v. Bennett, 6 De G., M'N. & G. 
 COO; 2 Jur. N. S. 1125; Williams v. Alien, 
 29 iJeav. 2t»2; lioberts v. Tunstall, 4 Hare, 
 201. 
 
 2 Hills »'. M'lUc, 9 Hare, 2'j7. 
 
 8 Fusxell V. Khvin, 7 Hare, 29; 13 Jur. 
 333; riie London Gas Lifjlit Company v. 
 Spottiswoode, It I5cav. 2fJ4. 
 
 * .Story V.<[. I'l. §§ 1150-168; Moffat r. 
 Farrinharson, 2 l5ro. C. (J. (I'erkins's cd.) 
 33H, and notes; Story I'artn. § 449; 1 
 Storv l'".<|. .Iiir. § 400; (jox r. St.'plH'iis, 
 Jur.'N. S. 1144; 11 \V. U. 929, V. C. K. : 
 and see Atkinson r. Mackretli, L. R. 2 I>|. 
 f)71, M. ]{., where a defaultinf; i)artnfr li.ad 
 absconded. In case of a dormant jiarliwr, 
 the plaintiff has his election to make him 
 d"fen lant nr not. Ilawlev r. Gramer, 4 
 Cowen,717; (Jol.le h. Gale, 7 IJlack. 218; 
 (Jollyer, I'jirtn. (I'crkin'*'* cd.) § 391 in 
 note'. \Vlii;ri' the s(di; design of the hill is 
 to have the itidividual [)rop''rty of ont; i)art- 
 ner, alleged to have hei'M fraudulently 
 conveyed away hy him, ap])lied in satis- 
 faction of II jiidgmcnt against the firm, 
 
 another partner from whom no discovery 
 is souf^ht, and ajrainst whom no relief is 
 prayed, is neither a necessary nor a proper 
 ptirtv. Randolph v. Daly, 1 C. E. Green 
 (N. ■.!.), 313. 
 
 <> I'iersoii v. Robinson, 3 Swnn. 139, n.; 
 Scholetield v. llenlield, 7 Sim. 667; Story 
 Eq. PI. § 194; Wells v. Strange, 6 Geo. 
 22. So where a bill is brought to recover 
 a debt against the estate of a deceased 
 partner, the oth'^r partners are proper 
 and necessary parties. Vose v. Phil- 
 briiok, 3 Story, 33r). So to a bill seek- 
 ing relief from the estate of a deceased 
 stockholder, all the living stockholders 
 and rc|)resentatives of deceased stock- 
 holders, liable to the debt, must, as inter- 
 ested in the acc<innt to be taken, be made 
 parties dc^fendant. New I'liiglaud, &c. 
 Bank v. Newport Steam Factory, U. I. 
 154. 
 
 This Order has been adopted in the 
 Equity Rnles of the I'niti-d States Su- 
 preme Court. Equity Rule, 01; see Genl. 
 Urd. VII. r. 2.
 
 270 
 
 OF PAKTIES TO A SUIT. 
 
 Cii. V. § -2. 
 
 Seats, where 
 collatiTiil 
 security is 
 ineroly per- 
 sonal. 
 
 In suits for 
 contribution. 
 
 Principal and 
 co-sureties, or 
 their personal 
 representa- 
 tives, neccs- 
 sarj-, though 
 insolvent ; 
 
 tion in Sfo/xis v. C/()i(h>)i,^ wliicli Avns llio case of :i morto-nge by 
 a ]iiiiuM])al ol" oiu' t'state, and by tbc suivty of aiiotbor, as :i col- 
 lati'ial 8iH'urity; and Lord Ahanlcy ^\. K. <U'tc'rnrnRMl, tliat a 
 bill of I'oYvvlosnvv aii'ainst tbc ]Minci|>al could not be sustained 
 Avitbout niakin*;- tbe oilier mortgagor a pai'ty ; because the otlier 
 had a right to redeem and be present at the account, to ])revent 
 tbe burden ultiuKitely falling upon liis own estate, or at least 
 falling upon it to a larger amount than tbc otlier estate might be 
 deficient to satisfy. 
 
 In /Sto7i-en v. Clendon, it is to be observed, that the surety had 
 conveyed his own estate by way of security to the mortgagee. 
 AVhere, however, he merely enters into a personal covenant as 
 surety for the principal, but does not convey any estate or interest 
 to the mortgagee, he will not be considered as a necessary party, 
 unless the surety has ])aid part of the debt;- and where A., having 
 a general power of a])])ointment over an estate, in the event of 
 sur\dving his father, joined with two other persons as his sureties, 
 in a covenant to pay an annuity to the plaintiff, and also cove- 
 nanted, that he would create a term in the estate if he survived 
 his father, and upon the death of liis father a bill was filed by the 
 plaintiff" against A. and other parties interested in the estate, to 
 lia\e the arrears of- his annuity raised and jmid; it was held upon 
 demurrer, that the sureties were not necessary parties.** 
 
 In a bill by one surety against another, to make him contribute, 
 it was held, that the executor of a third surety who Avas dead 
 ought to be a party, though he died insolvent.* In that case, the 
 l^rincipal had given a counter-bond of indemnity to the plaintiff", 
 who had taken him in execution upon it, :md he had been dis- 
 charged by an Insolvent Act ; and though he appears not to have 
 been made a party, yet no objection was taken ;^ and it seems 
 from this circumstance, and also from the case of JLawson v. 
 WrlgJit^^ that if the principal is clearly insolvent, and can be 
 proved to be so (as by his having taken advantage of an Act for 
 the Relief of Insolvent Debtors) he need not be a party to the 
 suit." It will, however, be necessary, if the i)rinci])al be not a 
 
 1 Cited 2 Bro. C C. 275, rwtis, edit. 
 Belt. 3 Swan«t. 150 n.; see also Pavne v. 
 Compton, 2 Y. & C. Ex. 457, 461; Gedge 
 r. Matson, 25 Beav. 310. 
 
 2 (ied-re v. Matson, 25 Beav. 310. 
 
 3 Xewton V. Earl of Egmont, 4 Sim. 574, 
 581. 
 
 ■* Hole V. Harrison, Finch, 15. So the 
 principal debtor must be made a part}'. 
 Trescott v. Smith, 1 M'Cord Ch. 301. 
 All persons interested should be made 
 parties in such a case. Moore v. Moberly, 
 7 B. Mon.. 2^5. Those, however, need 
 not be made parties who have removed 
 beyond the jurisdiction of the Court. 
 
 IMcKeniia v. George, 2 l!ich. Eq. 15; nnte, 
 191, 245, and note. Where a surety 
 seeks to have his debt paid to the cred- 
 itor out of some specified fund, or by 
 some party other than himself, such 
 creditor is "a necessary party to the bill. 
 But the creditor is not a neces-ary party, 
 where tlie surety has paid the debt, and is 
 seeking to be reimbursed by tlie principal 
 or co-surety. Murphy v. Jackson, 5 Jones 
 Eq. (N C.) 11. 
 
 " Hole V. Harrison, Finch, 15. 
 
 1 Cox, 270. 
 
 7 Story Eq. PI. § 169; .see 1 Story Eq. 
 Jur. §§ 494, 496; Long v. Dupuy, 1 l>ana,
 
 PERSONS RESISTING PLAINTIFF'S DEMANDS. 271 
 
 party, tliat the fact of his insolvency shouhl be proved ; whereas, Cn. v. § 2. 
 
 if he be a party to the suit, such proof Avill be unnecessary. lu ^-^ y ^ 
 
 Hole V. Harrison^ the insolvency of the principal Avas apparent unless insol- 
 
 from the tact of his having taken advantage of the Insolvent or a%mtted. 
 
 Act ; but it is presumed that the insolvency of the co-security 
 
 was not so capable of proof, and that it was upon that ground 
 
 held necessary to haA^e his personal representatiA'e before the 
 
 Court, in order to take an account of his estate. Where the foct 
 
 of the insolvency of one of the sureties Avas clear, and admitted 
 
 by the answers, Lord HardAvicke held, that thei'e was no necessity 
 
 to bring his representatiA'es before the Court.^ It seems, however. Plaintiff may 
 
 that tiie jilaintitf has his election, whether he Avill bring the OTnot'to''^''*^'^ 
 
 insolvent co-obligor or his representative before the Court or not.^ bring insol- 
 
 • • VGIlt CO"" 
 
 And in all cases coming under the 32d Order,* the j^laintitf has obligor before 
 the option to sue all the persons jointly and severally liable, if he ^'^"^ Court, 
 shall think fit. Independently of this Order, a plaintiff is alloAved, ^vllere per- 
 in a case Avhere there are scA'eral persons who are each liable to ^°"^ ^\^ 
 
 '■ . . se\'^rally 
 
 account for his own receipts, to file a bill against one or more of liable to 
 them for an account of their own receipts and payments, Avithout niay"be'filed 
 brinjjing the other parties to the suit. Thus, Avhere a residuary against one 
 
 1 T 1 • 1 -1, • r . . •^^ \. -without 
 
 legatee brought his bill against one ot two executors, without others; 
 
 his co-executor, Avho was abroad, to have an account of his own co-executors. 
 
 receipts and payments, the Lord Chancellor said, " The cause 
 
 shall go on, and if upon the account any thing appear difficult, the 
 
 Court AATill take care of it; the reason is the same here as in the 
 
 case of joint factors, and the issuing out of process in this case is 
 
 jturely matter of form." '' 
 
 The same rule Avill, it ajipears, be adojited, where there are joint Joim factors, 
 factors, and one of them is out of the jurisdiction. And in the 
 case o{ Lady Seli/ard\. The Executors of ITarris,'^ above referred 
 to, Avhere it rlid not a])pear that the ])arties were out of the juris- 
 diction, the Court permitted the representatives of one of several 
 
 104; Young v. Lyons, 8 Gill, 102; I^Ion- are insolvent, the pliintift' may have his 
 
 tagiie y Tiirpin, H Grattiin, 453; Watts v. decree against such »s are solvent for his 
 
 Gayle, 20 \h\. >^17. It is not suHicient in whole debt, cmcIi paj'ing sucli piojiortion 
 
 such a case merely to allege the insolvency of the whole debt as his stock bears to the 
 
 of the i>rinci[>al. Hoane /•. Pickett, 2 Kng. wiiole iimount of stock owned by the sol- 
 
 510. Where one of 8ev(;ral juilginent (lcl)t- vent stoikliolders, over wlioni tiie Court 
 
 ors is wholly irresponsii)le and destitute of has a('(|uireil jurisdiction. Krickson v. 
 
 property, he need not be made a part}- to Nesmith, 4U N. II. 371. 
 
 II judgment creditor's bill. Williams v. i l{e|). T. Fincli, 15. 
 
 Hubbard, 1 Mann. (.Mich.) 440. Where 2 Mado.x »'. .lackson. 3 Atk. 40G. 
 
 a bill in Ivjuity is brought agninst any of ^ Haywood r. Ovey, Mad. 113; sec 
 
 the strickliolders of a corj)oration to com- Clapett v. Worthington, 3 Gill, 83. 
 
 pel them to jiay a debt <>f the corporation * Genl. (Jrd. VII. r. 2. 
 
 lor which thcv are individually liabli', the '' Cowshid »'. Cely, Prec. in Cli. 83; 1 
 
 general rule [s, that all persons liable to Kip Ca. Ah. 73, PI. 18; 2 Kq. Ca. Ab. 105, 
 
 contribute .nhould be minle parties to the PI. 3, S. C ; but see I>evaynes i'. Hobiu- 
 
 bill. P.ut this is a rule of convenience son, 24 Beav. 98; 3 Jur. N." S. 707. 
 
 and not of necessitj" ; ninl where certain " 1 Eq. Ca. Ab. 74, PI. 20. 
 
 of the stockiiolders within the jurisdiction
 
 272 
 
 OF PARTIES TO A SUIT. 
 
 Cn. V. § 2. 
 
 Joint broach 
 of Uust. 
 
 Where 
 
 co-obliijors 
 
 nuuiorous. 
 
 Exceptions to 
 rule, wlierc 
 parties 
 uumcrous ; 
 
 contract on 
 behalf of 
 parishioners ; 
 
 bill by trades- 
 man afcainst 
 club-com- 
 mittee ; 
 
 bills against 
 joint-stock 
 companies ; 
 
 trust iH's, who -wc'i-e dead, to be sued for an account of the receipts 
 aiul disbursenuMits of his testator, who alone managed the trust, 
 without Itrinn'ino; the representatives of the other trustees before 
 the C\)in1 ; and now, under tlie 32d Order of August, 1841,^ it is 
 not necessary to make all the persons committing a breach of trust 
 parties to a suit instituted for redress of the wrong.'' 
 
 Tlie rule, that all the parties liable to a demand should be before 
 the Court, was a rule of couA^enience, to prevent further suits for 
 a contril)ution, and not a rule of necessity; and therefore might 
 be dispensed with, especially where the parties Avere many, and 
 the delays might be multiplied and continued.* Thus, where 
 there were a great nimiber of obligoi's, and many of them were 
 dead, some leaving assets and others leaving none, the Court pro- 
 ceeded to a decree, though all of them were not before it.* 
 
 The general rule, requiring the presence of all parties interested 
 in resisting the plaintiif 's demand, has also been dispensed with in 
 a variety of cases, where the parties were numerous, and the ends 
 of justice could be answered by a sufficient number being before 
 the Court to represent the rights of all.^ Thus, where A. agreed 
 with B. and C. to pave the streets of a parish, and B. and C, on be- 
 half of themselves and the rest of the parish, agreed to pay A., and 
 the agreement was lodged in the hands of B., it was held, that A. 
 should have his remedy against B. and C. and that they must resort 
 to the rest of the parish.® And so in Qidlcn v. The Duke of Queens- 
 berri/, where a bill was filed by a tradesman against the committee 
 of a voluntary society called " The Ladies' Club," for money ex- 
 pended and work done under a contract entered into by the defend- 
 ants, on behalf of themselves and the other suljscribers, and it Avas 
 objected that all the members who had subscribed should be parties, 
 the objection Avas oA'erruled, and a decree made for the plaintiff.'' 
 
 The same rule Avas acted upon by Sir Thomas Plumer M, R., 
 
 1 Genl. Ord. VII. r. 2. 
 
 2 Kell;i«:iy v. Johnson, 5 Beav. 319; 
 Perrv r. Ktiott, 5 Beav. 293; and see 
 Ship'ton V. Riiwlins, 4 Hare, G22; Hall r. 
 Austin, 2 Coll. 570; 10 Jur. 452. 
 
 3 Darwentr. Walton, 2 Atk. 510; Anon., 
 2 Eq. Ca. Ab. 166, PI. 27; Story i:(i. Jur. 
 §§ 78, 82: Erickson r. Nesniith, 46 N. II. 
 371. 374-377; Stinison v. Lewis, 36 Vt. 
 91, 93. 
 
 ■* Ladr Cranbournc v. Crispe, Finch, 
 105: 1 luj. Ca. Ab. 70; see 48th Equity 
 Kule of L nited States Supreme Court. 
 
 5 The like doctrine applies to cases 
 ■where there are maiij' persons defend- 
 ants, bel"nginf^ to voluntary associations, 
 against whom the suit is brought, as to 
 cases where the bill is brouglit by some 
 proprietors as filaintilTs on behalf of all. 
 Story Eq. I'l. 116 et stq. ; Wood v. Durn- 
 mer,"3 Mason, 315-319, 321, 322; Stimson 
 
 V. Lewis, 36 Vt. 91, 94; Gorman v. Rus- 
 sell, 14 Cal. 531; see Whitney v. IMayo, 
 15 III. 251. So where the creditors of an 
 insolvent debtor, who has assigned his 
 property for the payment of his debts, are 
 numerous, and some of them not within 
 the Commonwealth, it is not necessary 
 that lliey should be made piiriies to a bill 
 in Equity which concerns liis assets; he 
 and his ussignees only need be made par- 
 ties. Stevenson v. Austin, 3 Met. 474; 
 Wakeman v. Grover, 4 Paige, 23; see 
 Dias V. IJouchand, 10 Paige, 445; Johnson 
 V. Candnge, 31 Maine, 28 ; Duvall v. Speed, 
 1 M. Ch. Dec. 229. 
 
 6 Meriel v. Wymondsold, Hard. 205; 
 see also Anon., 2 Eq. Ca. Ab. 166, PI. 7. 
 
 ■^ Cullen V. Duke of tiueensberry, 1 
 Bro. C. C. 101, Perkins's ed. and notes; 
 1 Bro. P. C. 396, S. C. on appeal.
 
 PERSONS EESISTING PLAINTIFFS DEMANDS. 
 
 273 
 
 in a bill for the specific performance of an agreement for a lease, 
 against the treasurer and directors of a Joint-Stock Company 
 established by Act of Parliament, who had purchased the fee of 
 the premises fi-om the party who had entered into the agreement, 
 although the rest of the proj^rietors, whose concurrence in the 
 conveyance would be necessary, were not before the Court.-'^ The 
 Master of the Rolls, on that occasion, came to the conclusion, that 
 although the bill required an act to be done by parties who were 
 absent, yet, as they were so numerous that they could not be 
 brought before the Court, he would go as far as he could to bind 
 their right, and made a decree declaring the plaiutiifs entitled to 
 a specific performance, and restraining the treasurer of the com- 
 pany from bringing any action to disturb the plaintifis in their 
 possession.^ 
 
 From the case oi Horsleysr. Bell^ cited in the above case of the 
 Ladies' Club, it appears that, in cases of this description, the act- 
 ing members of the committee are all liable, though some of them 
 may not liave been present at all the meetings which have taken 
 place respecting the contract. In that case, the defendants were 
 all the acting commissioners, under a Navigation Act, and the 
 plaintiflf had been employed on their behalfj and it appeared that 
 the orders had been given at ditlerent meetings by such of the 
 defendants as were present at these meetings ; but none of the de- 
 fendants Avere present at all the meetings, or joined in all the 
 orders, but every one of them Avere present at some of the meet- 
 ings, and joined in making some of the orders; and one of the 
 questions in the cause was, whether all the acting commissioners 
 were liable on account of all the orders, or only as to those which 
 tliey had respectively signed. U])on this point the Court was of 
 opinion tliat all the acting commissioners were liable in toto. 
 Every one who comes in afterwards approves the former acts; 
 and if any one of the commissioners who had acted before dis- 
 approved the subsecpient acts, he might have gone to a future 
 meeting an<l ])rotested against tliem. 
 
 In the ])receding cases, the decision was ma<le uj)on the ground 
 
 Ch. V. § 2. 
 
 liability of 
 acting mem- 
 bers. 
 
 Adoption of 
 act of mem- 
 bers present 
 at ])rcce<ling 
 meetings. 
 
 Result of the 
 cases. 
 
 1 Menx »'. Maltby, 2 Swans. 277; Par- 
 sons t'. Si)oon<T, .0 liar'', 102; 10 Jur. 41'4; 
 and see Uoujila^s v llorsl'all, '2 S & S. 
 1H4. riie liilliiwiii); cases illustrate the 
 mode oC pi'-ading in a'tions \>y and 
 agamsl Joint-Stuck Conipanii's, and will 
 bu MS till ill traininix -uits in lv|iiity. 
 Stewart r Dunn, 12 M & U'. (JoO; l>avid- 
 Bon V. Cooper, 11 M. iSc W. 77H; Smiili v. 
 (ioid.swiirtliy, 4 (l- H. 4;(0 In a bill agiiinst 
 an iin ncorpoiiitcd bunking coinpaiy, ilio 
 niiMiibcrs oi wliicb iirc nuni'Tous, anil, in 
 pari, uniuiowii, it is nut ncce-s^iry to bring 
 all tlie stockholders betore the Court, be- 
 
 fore a decree c:\n be made. Maiideville v. 
 Higgs, 2 I'etcis, 4.S2; ^ce \'an V'ecliten v. 
 'leiry, 2 John. Cli. l'.»7; Sliaw y. Norfolk 
 County K.R. Co., 6 lirny, 170, 171; Krick- 
 sori v. Nu-niitli, 4 Allen, 233; lludlcy v. 
 Husscll, 40 N. II. lOU. 
 
 - 2 awans. 2bti; and see i/>. 287, and 
 the cases there eitid; 'riiorntiii v. Iligh- 
 tosver, 17 (ieo. 1 ; hut see .MclJride v. Lind- 
 Bav, 11 Kng. Law & \.i\. 24i(. 
 
 « See Amb. 770, muI 1 Hro. U. (!. 101, 
 n., whcie tlic caso is more fully n-porled; 
 and see Attorney-Ueneral v. liiown, 1 
 Swan. 2U&. 
 
 18
 
 OF PARTIES TO A SUIT. 
 
 Vu. V. § 2. 
 
 Rills of peace, 
 
 by City of 
 l.oiulon, to 
 establish 
 right to 
 duties; 
 
 by lords of 
 manors as to 
 riglits of 
 common ; 
 
 b^ parson for 
 tithes. 
 
 Suits against 
 some of many 
 shareholders. 
 
 th.Tt, if tlie pl:»iiUitl" succeeded in his doinands ni>iiinst tlic individ- 
 u:ils sued, they wouUl not be injured, as they liad a remedy over 
 against tlie others for a contribution, which, under tlieir own reg- 
 uhitions, they might enforce, althougli the enforcement of it, on 
 the ]Ktrt of the plaintiffs against so numerous a body, would be 
 nearly impossible.^ Tliere are, liowever, other cases in which suits 
 are permitted to proceed against a few, of many individuals of a 
 certain class, mthout bringing the rest before the Court, altliough 
 their interests may in some degree be affected by the decision, as 
 in the case of bills of peace brought to establish a general legal 
 right against a great many distinct individuals : '■^ Thus, for in- 
 stance, a bill may be brought by a person having a right at Law 
 to demand service from the individuals of a large district to his 
 mill, for the })urpose of establishing that right. And the cor})ora- 
 tion of London has been allowed to exhibit a bill for the purpose 
 of establisliing their right to a duty, and to bring only a few per- 
 sons before the Court, who dealt in those things on which the 
 duty was claimed.^ And so bills are frequently entertained by 
 lords of manors against some of the tenants, on a question of com- 
 mon affecting them all ; and a parson may maintain a bill for tithes 
 against a few of the occupiers wathin the parish although they set 
 up a modus to which the whole are jointly liable.* 
 
 The principle upon which the Courts have acted in those cases 
 has been very clearly laid down by Lord Eldon in Adair v. 27ie 
 New River Company!' In that case, a bill was filed by a person 
 entitled, under the Crown, to a rent reserved out of a moiety of 
 the profits of the New Kiver Company, to which moiety the 
 CroMni was entitled under the original charter of that company, 
 but had subsequently granted it to Sir John Middleton, the 
 original projector, reserving the rent in question. By a variety 
 of mesne assignments, the King's moiety of the profits had be- 
 come vested in a hundred persons, or upwards ; and the bill was 
 filed against the company and eight of those persons for an 
 account, and it charged, that there was not any tangible or cor- 
 poreal property upon which the plaintiff could distrain, and that 
 
 1 See 48th Equity Rule of United States 
 Supreme Court. 
 
 2 It is not a sufficient objection to a bill 
 by creditors against n corjioration and its 
 debtors to com|>el the collection by the 
 corporation of -what is due to it, and the 
 payment of the debt it owes, that all 
 the creditors or stockholders are not 
 joined. If necessary, the Court may, at 
 the suggestion of eitlier party tlint the 
 corporation is insolvent, administer its 
 assets by a receiver, and tlius colhct all 
 the subscriptions or debts to the corpora- 
 tion. Ogilvie V. Knox Ins. Co., 22 How. 
 U.S. 380; S. C. 2 Black, U. S. 539. 
 
 And the stockholders who are called upon 
 by such bill to j)ay the balances due on 
 their several subscriptions to the stock of 
 the company, cannot be allowed to defend 
 themselves by an allegation that their 
 subscriptions were obtained by fraud and 
 misrepresentation of the agent of the 
 company. Ogilvie v. Knox Ins. Co., 22 
 How. U. S. 3b0. 
 
 2 City of London v. Perkins, 4 Bro. P. 
 C. 158. 
 
 4 Ilardcastle v. Smithson, 3 Atk. 246. 
 
 5 11 Ves. 429; see Story Eq. PI. § 116 
 e,i seq. ; ante, 272, 273, note.
 
 PERSONS RESISTING PLAINTIFF'S DEMANDS. 275 
 
 the parties were so numerous, and thus liable to so many fluctua- Ch. V. § 2. 
 tions, that it was impossible, if the plaintiff could discover them, 
 to bring them all before the Court, and that these impediments 
 were not occasioned by the plaintiff or those under whom he 
 claimed, but by the defendants. To this bill an objection was 
 taken for want of parties, because all the persons interested in the 
 King's share were not before the Court; but Lord Eldon said, 
 that there was no doubt that it is generally the rule that wherever 
 a rent charge is granted, all persons Avho have to litigate any title 
 with regard to that rent charge, or with each other, as being liable 
 to pay the whole or to contribute amongst themselves, must be 
 brought before the Court ; ^ but that it was a very different con- 
 sideration whether it was possible to hold, that the rule should be 
 applied to an extent destroying the very purpose for which it was 
 established, viz., that it should prevail where it is actually imprac- 
 ticable to bring all the parties, or where it is attended with incon- 
 venience almost amounting to that, as well as where it can be 
 brought without inconvenience. It must depend upon the cir- 
 cumstances of each case. His Lordship also said, tliat there were 
 authorities to show that, where it is impracticable, the rule shall 
 not be jjressed; and in such a case as the one before him, the 
 King's share being si)lit into such a number that it was impracti- 
 cable to go on with a record attempting to bring all parties having 
 interest in the subject to be charged, he should hesitate to detei-- 
 mine, that a person ha^^ng a demand upon the whole or every part 
 of tlie moiety, does not do enough if he brings all Avhom he can bring. 
 His Lordship tlien goes on to say, "There is one class of cases 
 very important upon this subject, viz., where a person having at 
 Law a general right to demand service from the individuals of a 
 large district, to his mill for instance, may sue thus in Equity : his 
 demand is upon every individual not to grind com for their OAvn 
 subsistence, except at his mill ; to ])ring actions against any individ- 
 ual for subtracting that sei-vice is regarded as perfectly im[»racti- 
 cable ; therefore, a bill is filed to establish that right, and it is not 
 necessary to bring all the imlividuals. Why? Not that it is inex- 
 pedient, but that it is impracticable to biing them all.'^ The Court, 
 therefore, has required so many that it can be justly said they Avill 
 fairly and honestly try the legal right between themselves, all other 
 persons interested, and the ])laintiff; and when tlie legal right is 
 so established at Law, tin- remedy in p'quity is very simple : merely 
 a bill stating that the right has been established in such ajiroceed- 
 ing; and uj>on that groiuid, a Court of P^quity will give the plain- 
 tiff relief against the defendants in the second suit, only represented 
 
 1 See 1 Yj\. Ca. Ab. 72. 2 See 48th Equity liulu of the United 
 
 States Supreme Court.
 
 276 
 
 OF PARTI ES TO A SUIT. 
 
 ("11. V. 5 -2. 
 
 Kiilo as to 
 brinjriiij; all 
 
 bi'tiiro tlie 
 t'ourt, 
 dispensed 
 witli in eases 
 ot' eliarities. 
 
 "WTiere elnim 
 of absentees 
 is not homo- 
 geneous with 
 those present, 
 rule applies. 
 
 Creditors 
 under trust 
 deed. 
 
 h\ those in tlu' ilrst. I tVi'l a strong inclination that a decree of 
 the same nature may be made in this case." ^ 
 
 In the above case of jidair v. The JVaw Jiioer Company, Lord 
 Ehhm laid down as a nde, that "wherever a rent-chaige is granted, 
 all persons whose estates are liable must be brought before the 
 Court.'- This rule,' however, is liable to an exception in the case 
 of charities, which are considered entitled to greater indulgence in 
 matters of j)leading and practice than ordinary parti(^s.^ Thus, in 
 Attornet/- General v. iSheUy^'^ it was held, that in the case of a char- 
 ity it is not necessary that all the terre-tenants should be brought 
 before the Court, because every part of the land was liable, and 
 the charity ought not to be put to this ditliculty. The same ex- 
 ception to the general rule Avas admitted to the case of Attorney- 
 General v. Wyhurc/hJ' 
 
 It is to be observed, that the rule laid down by Lord Eldon, in 
 Adair v. Hie JVew Hiver Company^ ai)plies only to cases where 
 there is one general right in all the parties concerned ; ® that is, 
 where the character of all the parties, so far as the right is con- 
 cerned, is homogeneous, as in the case in suits to establish a modus, 
 or a right of suit to a mill ; and that, notwithstanding the incon- 
 venience arising from numerous parties, there are some cases in 
 which they cannot be dispensed with, as in the case of a bill filed 
 to have the benefit of a charge on an estate, in which case all per- 
 sons must be made parties who claim an interest in such estate. 
 Thus, where estates had been conveyed to trustees, in trust for 
 such creditors of the grantor as should execute the conveyance, 
 and one incumbrancer, some of whose incumbrances were prior 
 and some subsequent to the trust deed, filed a bill praying that his 
 rights and interests under his securities might be established, and 
 the priorities of himself and the other incumbrancers declared ; 
 and alleging that the deed was executed by thirty creditors of the 
 grantor, and amongst others by two individuals who were named 
 as defendants, and charging that such creditors were too numer- 
 ous to be all made parties to the suit, and that he was ignorant of 
 the priorities and interests of such j>arties and of their residences, 
 and whether they were living or dead, save as to the two who were 
 named ; a plea by some of the defendants, setting out the names 
 
 1 See ace. Biscoe v. The Undertakers of 
 the Lai d Ijank,citefl in Cuthbeit y. West- 
 wood, Vin. Ab. tit. Party, B 205, PI. 5*>; 
 see Story Ktj. PI. § IIG at seq. 
 
 2 All per.-oiis, who are affected by a 
 common cliarfje i r burden, must be made 
 parties, not oi.ly fur the purpose of ascer- 
 tiiiiiing and cui. testing ilie right or title 
 to it, but also for the purjiose, iC it should 
 be established, of a contribution towards 
 its discharge among themselves, titory 
 
 Eq. PI. §§ 1.33, 162; Coleman v. Barnes, 
 5 Allen. 874; Skeel i'. Spraker, 8 Pai^e, 
 l)-2; iM\ers». United Guaranty, &c. Co., 
 7 De (-;.', M. & G. 112. 
 
 '•^ Attorney-General v. Jackson, 11 Ves. 
 367. 
 
 4 1 Salk. 163. 
 
 5 1 P. Wms. 599; and see Attorney- 
 General V. Jackson, 11 Ves. 305; Sti^ry 
 Eq. PI. § 93. 
 
 « See Story Eq. PI. §§ 120, 130 et seq.
 
 PERSONS RESISTING PLAINTIFF'S DEMANDS. 277 
 
 and residences of tlie persons who had executed the deed, and Ch. v. § 2. 
 
 alleging that they were living, and necessary parties to the suit, '" -r- ' 
 
 was allowed.^ 
 
 With reference to this decision it may be observed, that it is the R"]e as to in- 
 general and most universal jjractice of the Court, in suits for es- ' 
 tablishing charges upon estates, to make all persons entitled to all subse- 
 incumbrances subsequent to the plaintiff's charge, parties to the plaintiff's 
 suit. Thus, in the case of a bill to foreclose a mortgage, all per- 5'^'''"" J?"''.^ 
 
 . _ ^ •^ ' i _ be parties in 
 
 sons, who have incumbrances upon the estate which are posterior suits to estab- 
 in point of time to the plaintiff's mortgage, must be made de- ^^ ^ arges; 
 fendants ; ^ for although, if there are many incumbrancers, some as in suits to 
 of whom are not made parties to a bill of foreclosure, the plaintiff 
 may, not'W'ithstanding, foreclose such of the defendants as he has 
 brought before the Court ;^ yet such decree will not bind the 
 other incumbrancers who are not parties, even though the mort- 
 gagee at the time of foreclosure had no notice of the existence of 
 such incumbrancers.'* This rule may at first appear inconsistent 
 with the usual principles of a Court of Equity, Init the justice of it 
 is very clearly shown in the report of Lord Nottingham's judgment 
 in Sherman v, CoxJ' His Lordship says, " Although there be a 
 great mischief on one hand that a mortgagee, after a decree against 
 the mortgagor to foreclose him of his equity of redemption, shall 
 never know Avhen to be at rest, for if there be any other incum- 
 brances, he is still liable to an account, yet the inconvenience is 
 far greater on the other side ; for if a mortgagee that is a stranger 
 to this decree should be concluded, he would be absolutely with- 
 out remedy, and lose his whole money, when, perhaps, a decree 
 may be huddled up purposely to cheat him, and in the mean time 
 (he being paid his interest) may be lulled asleep and think nothing 
 of it ; whereas, on the other hand, there is no prejudice but being 
 liable to the tr(;uble of an account, and if so be tlint were stated 
 bonil file betw(;en the mortgagor and mortgagee in the suit where- 
 in the decree was obtained, that shall be no more ravelled into, but 
 for so long sli.ill s1;niil un(uui'lR'<l." ^ 
 
 1 Newton r. Earl ERmont, 5 Sim. 1.30; 6 .3 Ch. Ron. 8.3 [40]; S. C. Cockes v. 
 anrl .see Harrison v. Stewardsoii, 2 Hare, Sherman, 2 l*reein. 14. 
 6aO; aii'l llolluul V IJaker, 3 Hare, 08; 8 Wliiit is here said by the Lord Chan- 
 Story Kq. I'l. § \W et Ktq. cellor on ttie subject o"f the account, as 
 
 ■■* Hut see Sinilh v. Cliapman, 4 Conn. -well as the c:ise of Needier v. Decble, 1 
 
 844; Wilson t'. llnvwarl, 6 Florida, 171. Cha. Ca. 2'.)!», appenrs to he at variance 
 
 8 Draper v. Lord Clarendon, 2 Vern. with the deci-ioii in iMorret v. We^terne, 
 
 618. su/jrn. It seciii'* to l)i' in conscfitience of 
 
 ■• Lomax » Hide, 2 Vern. 185; Godfrey the rule aliove hiid down, that the practice 
 
 r. Chad well, i/^ «01; 1 Kq Ca. Ab. .31«'; prevails of intro.lucinir an intcrp'Kalory 
 
 PI. 7, S. C.;Morret ?>. Wcsterne, 2 Vern. into a hill of (orccinsiire, iii(|Miriii(; wlietlier 
 
 603; 1 Ff|. Ca. Ab. 104, I'l. 7, S. C ; 4 fliePMireany and whHtincuiiihraiicesaflcct- 
 
 Kent (11th cd ), 184, 1^6; Haines;'. Itcach. in^' the estate hcMldcs t hut of the ph. intifl', in 
 
 3 John. Cli. 45!*; Lyon )'. Sjindford, 5 order that, if flie answr sl:itcs nny, tho 
 
 (^onn. .'J44; K'cnwick r. .Miicomh, 1 llnpk. owners of such incumhraiices he "imido 
 
 277; Story V.(\. IM. § li»3, und notes. parties. Storv V.i\. I'l. § l'J3, note.
 
 278 OF PARTIES TO A SUIT. 
 
 Cii. V. § 2. V])o\\ the same ground it was that Lord Alvaidey M. II. in tlie 
 
 ■ ^^ ' liiiiAop of Winchester v. JBeavor^ ordered a bill of foreck)Sure to 
 
 stand over for the |)ur]H)se of making a judgment creditor a i)arty. 
 From the marginal note to tliat case, a doubt a])i)ears to arise as 
 to whether the INIaster of the KoUs intended to adojit the general 
 rule, that all incumbrancers must be i)arties to a bill of foreclo- 
 sure ; but the decision rests upon the rule of practice, which has 
 been stated, and it cannot, after that decision, be doubted that all 
 incundjr.-incers whose liens appear u])on the answer, must be made 
 parties, and if that answer be a suflicient one and true, it must, 
 according to the practice in drawing bills before stated,^ appear 
 upon the answer who such incumbrancers are. At all events, it is 
 evident, from the cases of Loniax v. Hide, Godfrey v. Chadwell^ 
 Morret v. Westerne, just referred to, that if a mortgagee wishes to 
 obtain an undisputed right to an estate by foreclosure, he must 
 make all incumbrancers upon the estate, of whose liens he has 
 notice (whether ai)pearing upon the answer or not), parties to his 
 suit.^ 
 Rule extends The rule which requires all incumbrancers upon the equity of 
 where sak or ademption to be brought before the Court in cases of foreclosure 
 cluir^-e is sub- extends to cases in which the subject of the litigation has been sold, 
 piaimm's or charged subsequently to the date of the plaintiiF's claim, 
 claim; whether such sale or charge has been by legal instrument, or only 
 
 by agreement, or whether it extends to the whole or only partial 
 interests. Therefore, where an estate had been sold in lots subject 
 to an equitable charge in favor of the plaintiff, it was held that all 
 the purchasers were necessary parties to a bill by him to realize 
 his security.^ And where a bill was filed by a lessee to compel a 
 landlord to give his license to the assignment of a lease to a pur- 
 chaser, on the ground that he had by certain acts waived the right 
 to withhold it, which had been reserved to him by the original 
 rule in cases lease, the purchaser was held to be a necessary party.** And so if 
 tracts foT' ^ "^^^ contracts with another for the purchase of an estate, and 
 sale. afterwards, before conveyance, enters into a covenant with a third 
 
 person that the vendor shall convey the estate to such third person, 
 the vendor, if he have notice of the sttbscquent contract, caimot 
 with safety convey the estate to the vendee without the concur- 
 rence of the third person, who in that case will be a necessary 
 party to a bill by the purchaser against the vendor for a specific 
 performance ; but if A. contracts with B. to convey to him an es- 
 tate, and B. enters into a sub-contract with C, that he, B., will 
 convey to him the same estate, then if B. files a bill against A., C. 
 will not be a necessary i»arty, because A. is in that case in no man- 
 
 1 3 Ves. 314. •* Peto );. Hammond, 29 Beav. 91. 
 
 2 See note 6, on p. 277. ^ Maule v. Duke of Beaufort, 1 Russ. 
 8 Rulleston v. Morton, 1 Dr. & W. 171. 349.
 
 PERSONS RESISTING PLAINTIFF S DEMANDS. 
 
 279 
 
 ner affected by the sub-contract, which his conveyance to B. would 
 rather promote than injure.^ And where a bill was filed by credit- 
 ors to set aside a purchase on the ground of fraud, and it appeared 
 that the purchaser had, since his purchase, executed a mortgage 
 of the estate, the mortgagee was considered a necessary party.^ 
 But where, since his purchase, judgments had been entered up 
 against the purchaser, the judgment creditors were held to be un- 
 necessary parties to a bill for specific performance.^ 
 
 The rule which requires all subsequent incumbrancers to be 
 parties, extends only to cases in which the subsequent charges or 
 incumbrances are specific ; and Ave have before seen, that in most 
 cases where estates have been conveyed to trustees to pay debts or 
 legacies, the trustees may sustain suits respecting the trust property, 
 without those claiming under the trust being parties to it.* It is 
 also unnecessary that j^ersons having prior mortgages or incum- 
 brances should be parties, because they will have the same lien 
 upon the estate after a decree as they had before ; ® for this reason 
 it has been held, that in a bill for a partition, a mortgagee upon 
 the whole estate is not a necessary party, though a mortgagee of 
 one of the undivided portions Avould be.^ And so, where a bill 
 was brought by a mortgagor against a mortgagee, praying a sale 
 of the mortgaged estate, persons Avho had anniiities prior to the 
 mortgage were held unnecessary parties, and notwithstanding they 
 appeared at the hearing and consented to a sale. Lord Kenyon M. 
 R. dismissed the bill as to them with costs, and said that the estate 
 must be sold subject to their annuities.'' It must have been upon 
 the same principle, that the case of Lord Ilollis,^ wherein it was 
 held that a third mortgagee buying in the first, need not make a 
 second mortgagee a party, was decided ; otherwise, it is not easy 
 to reconcile that case with the other principles which have been 
 laid down. It cannot be supposed that it was meant to be decided 
 that a third mortgagee buying in the first mortgage, could by that 
 
 1 J'. Wiilford, 4 F?uss. 372; see also 
 
 Aloxaiidfcr v. Cuna, 1 I)e G. & S. 415; 
 Cha'lwick v. Mndcn, 9 flnre, 188; Hacker 
 V. Mid Kent Kaihvav ('(unpimv, 11 Jur. 
 N. S. G34, V. C. S. \Vhere tlic" owner of 
 land siirrces in writing to convev it to an- 
 oth>T, and altcrwardu conveys it to a dif- 
 ferent person, with notice of the prior 
 atrrepment, the trustee will liold the title 
 as trustee of the first [lurcliascr; and in a 
 bill bv such first purchaser, to enforce 
 specific performance, the second purchaser 
 is a nfcess:iry party. Stone v- IJuckner, 12 
 Sm. & M. 72. 
 
 2 O.pis r. Middleton, 2 Mad. 410. So 
 where, in such a case, it appeiirs that the 
 del»tor chiirtjpd with the tVnudulent con- 
 veyance ia dcarl, his administratir should 
 be made a partv. Coalcsr. Diiy, !i .Mi^sou. 
 315. Whether the debtor himself, if living, 
 
 sliould be niMde a part}', see Wright v. 
 Cornelius, 10 Missou. 174. 
 
 8 I'etre v. Duiicombe, 7 Hare, 24. 
 
 * I.d. Red. 175. 
 
 '' Itose V. rage, 2 Sim. 471 ; Ilopan v. 
 Wiiiker. 14 How. U. S. 37; Wilson v. Bis- 
 coe, 6 Kng. 41. 
 
 « Swan V. Swan, 8 Pri. 518; Whitton v. 
 Whitt<pn, 38 N. H. 134, 135. But in Har- 
 wood V, Kirby, 1 I'aige, 4(i9, it was iudd, 
 that ail incumbrancer, upon the share of 
 one tenant in common, cannot be made a 
 party to a bill tor partition, and the parti- 
 tion does not aflect his rifrhls; but his in- 
 cumbrMuce continues upon the shnre set 
 off to the p'irty who created the lien; sec 
 Sebrinjc y. MerscrcMu, 1 Mopk. 5()1. 
 
 "^ Delahere v. Norwodd, 3 Swim. 144, n.; 
 Hogan t). Walker, 14 How. U. S. 37. 
 
 8 Citeil 3 Ch. Kep. 86. 
 
 Ch. V. § 2. 
 
 Judgment 
 creditors of 
 purchaser 
 unnecessary, 
 in suit for 
 specific per- 
 fonnance. 
 Rule confined 
 to specific in- 
 cumbrances. 
 
 Persons hav- 
 ing prior 
 charges un- 
 necessary.
 
 2S0 
 
 OF PARTIES TO A SUIT. 
 
 On. V. 5 
 
 Mortftagce 
 when made 
 a party, is 
 entitled to be 
 redeemed. 
 
 Second mort- 
 gasee may 
 redeem (ii-st, 
 without sub- 
 sequent in- 
 cunibraucer. 
 
 Incumbran- 
 cers or 
 Eurchasers, 
 ecoming 
 such after 
 bill tiled. 
 
 ])nicoss acquire tlio rii:;1\t to loivclose \\w sccoutl, Avitliout bring- 
 iuLi; him boforothc Court, and giving liiiii an opportunity to re- 
 deem. 
 
 It is riglit to remark here, tliat in all eases where a mortgagee 
 is made a party to a suit by the mortgagor or those claiming 
 under hiin, he is entitled to be redeemed ; ^ and that, therefore, 
 unless a second mortgagee or other incumbrancer is pre])ai-cd to 
 redeem him, he will be an improper )>arty to a suit by such niort- 
 gagce or incumbrancer, where the object is merely to foreclose 
 the equity of redemption.^ 
 
 It is also to be obsei-ved, tliat a second incumbrancer may file 
 a bill to redeem the first, without making a subsequent incum- 
 brancer a party ; and that if he brings him before the Court for 
 the mere purpose of having his incumbrance post[)oned, and not 
 to foreclose him, the bill will be dismissed against him with costs.® 
 But a bill for redem])tion cannot be sustained by a party having 
 a partial interest in the equity of redemption, in the absence of 
 the other parties interested in it,* 
 
 With respect to incumbrancers or ]>urchasers becoming such 
 after a bill has been filed and served,^ and registered as a Us 
 pendens,^ they will be bound by the decree, and need not be made 
 parties to the suit, whether the plaintitf have notice of them or 
 not ; for an alienation pending a suit is void, or rather voidable.'' 
 
 1 Drew V. O'Hara. 2 B. & B. 502, n.; 
 Cholmiey v. Countess of Oxford, 2 Atlt. 
 267. 
 
 2 Soe Story Eq PI. § 186 ei seq. 
 
 3 Shefiherd v. Gwinnett, 3 Swan. 151, n. ; 
 see Story Kq PI. § 193, and n^tes. 
 
 •* lleiiley V. Stone, 3 Beav. 355; see 
 Storv Eq. PI. § 185; Chappell v. Kees, 1 
 De G., M. & G. 393; 16 ,Jur. 415. Offer 
 to redi'eni not necessary in bill by judg- 
 ment creditor against trustees and mort- 
 gagees to establish his charge, and for 
 payment out of rents. .Jeffervs /,'. Dick- 
 son. L R. 1 Ch. Ap. 183 ; 12" Jur. N. S. 
 281, L. C In Ma.ssnehusetts, when, during 
 the pendency of a suit for redemp'ion, it 
 appears that any other person is interested 
 therein, the Court mav cause him to be 
 made a p:irty thereto upon such terms as 
 they shall think prf)per; and may order a 
 summons or a suljpnena to be issued and 
 served on him in such manner as they shall 
 direct; and he shall thereupon be allowed 
 and required to appear and answer to the 
 suit. (ieid. Sts. c. 140, § 31 
 
 5 Powf'll V. Wright, 7 Beav. 444; Hum- 
 ble r. Shore. 8 Hare, 119; see, however, 
 Drew V. Earl of Norburv, 3 Jo. & Lat. 267 ; 
 Sugd. V. & P 758. 
 
 6 2 Vic. c. 11, § 7. 
 
 "> Walker v. .Smalwood, Amb. 676; Gas- 
 kill ?;. Dunlin 3 B. & B 167; Moore v. 
 M'Xamani, 1 B. & H. 309; Gentle r. Ward, 
 2 Atk 175; Metcalfe v. Pulvertoft, 2 V.& 
 
 B. 207; and see Mas.sy v. B;itwe]I, 4 Dr. & 
 War. 68; Long?;. Bowring, lO.Tur N.S.668; 
 12 W. R. 972, M. R. Generally speaking, 
 an a'^signee under a voluntary assignment, 
 pendente lile. need not be made a party 
 to a bill, or be brouglit before the Court; 
 forevery person, j)urchnf.ms pendente lite, is 
 treated as a purcliaser with notice, and is 
 subject to all the equities of the persons 
 under whom he cbiims in privity. Story 
 E(). PI §§ 156, 351 ; 1 Story Eq Jur. § 406; 
 Sedirwick v Cleveland, 7 Paige, 287; Van 
 Hook V. Throckmorton, 8 Paige. 33; Cook 
 V. Mancins, 5 John. Ch. 93; Murray v. 
 Barlow, 1 John. Ch. 577, 581; MurraV v. 
 Lylburn, 2 .John. Ch. 441, 445; 2 Storj-'Eq. 
 Jur. § 908; Hoxie v. Carr, 1 Sumner," 173; 
 Branden v. Cabine«s, 10 Abi. 155; Law- 
 rence V. Lane, 4 Gihnan, 354 ; Kern v. 
 Harbric-g, 11 Ind. 443; Moulden v. Lan- 
 ahan, 29 Md. 200. It is, Jiowever, other- 
 wise where the assignment is b}- opera- 
 tion of law, as in cases of bankruptcy, 
 or assignments under the insolvent acts. 
 Sedgwick v. Cleveland, 7 Paige, 288; Deas 
 V. Thorne, 3 John. 543; Story Eq. PI. § 342, 
 not". § 351, note; Storm v. Davenport. 1 
 Sandf. (/h. 135. And an assignee under 
 a voluntary assignment may be madu a 
 party, when desirable, at the election of 
 the plaintiff. Stor}' Eq. PI. 156, and cases 
 in n(Ae ; see Longworth v. Taylor, 1 Mc- 
 Lean, 395.
 
 PERSONS EESISTIXG PLAINTIFF'S DEMANDS. 281 
 
 If, therefore, after a bill filed by the first mortgagee to foreclose, Ch. V. § 2. 
 the mortgagor confesses a judgment, executes a second mortgage, " « ' 
 or assigns the equity of redemption, the plaintiff need not make 
 the incumbrancer, mortgagee, or assignee jiarties, for they will be 
 bound by the suit ; and can only have the benefit of a title so 
 gained, by filing an original bill in the nature of a cross-bill, to 
 redeem the mortgaged property ; ^ and where a purchaser took an 
 exception to a title, because two mortgagees, who became such 
 after the bill was filed, were no parties to the foreclosure, the 
 exception Avas overruled with costs ; ^ and it has been held, that 
 where one of several plaintiifs assigned his equitable interest, 
 pendente lite, the suit might be heard as if there had been no such 
 assignment;^ where, however, a sole plaintiff assigned all his 
 equitable interest absolutely,^ and Avhere all the adult i:)laintiffs 
 assigned their equitable interest by way of raortgage,^ the assign- 
 ees were held necessary parties. But in cases where a change in • 
 the ownership of the legal estate takes place pending the suit, by 
 alienation or otherwise, the new owner must be brought before 
 the Court in some shape or other, in order that he may execute a 
 conveyance of the legal estate.® 
 
 If a person, pendente lite, takes an assignment of the interest Assignee 
 of one of the parties to the suit, he may if he pleases make himself (^'"^'2 * ^' 
 a party to the suit by supplemental bill;^ but he cannot by peti- supplemental 
 tion pi-ay to be admitted to take a part as a party defendant ; ^ all 
 that the* Court will do is to make an order that the assignor shall 
 not take the property out of Court without notice.® 
 
 We now come to the consideration of those cases in which it is Persons 
 
 . , xi • against -n-nom 
 
 necessary to make persons defendants to a suit, not because tlien- tietvinianthas 
 rights may be directly affected by the decree, if obtained, but ^^^''^J^^ ^e 
 because, in the event of the i)laintiff succeeding in his object parties. 
 against the i)rincipal defendant, that defendant will thereby ac- 
 
 1 St.irv' Ffi. PI. § 351; Mitforrt Eq. PI. v Mow!<tt. 1 Ed. Ch. 9; Steele v. Taylor, 
 73; I.iiinlKTi v. Liim^prt, 52 Maine, 544. 1 Mill. 274 Hut it seems lie mny be niiule 
 
 2 Bishop Winchester v. Paiiie, 11 Ves. a pnrly hy the express consent of tiic plain- 
 J99 tiff. Ste<-!e v. Tavlor, su])vn. 
 
 SEtidest). Harris. 1 Y & 0. 230; Storv » Tosti'r r. T)e;Kon, 6 Mad. 50; Story 
 
 En. .Tnr § 156; imtc, 1M, and note and Eq PI. § 342 and notes, § 34f*; S.-ilgwick 
 
 casfs cited to tliis point of a-Mfcnmei.ts r Cleveland, 7 Paige, 2'JO; Deas ?-. Thorne, 
 
 ptwl^ntf lile ; 2 Storv Kq. .Inr § 'Jo8. 3 John. 544; .see, however, Rpin^lon v. 
 
 * .lohn^.n V. '\'\v niMs, 11 UenV. 501. IJran.lon. 3 N. 1{. 2K7. V. C K.. where a 
 
 6 Solomon r Solomon, 13 Sim. 510. supplemental order \va« made to hring he- 
 
 6 Duly r. Kelly. 4 Dow, 43.'>; Hi-hop of fore llu; Court moi tgagees ot shares alter 
 Winchester Ji Paine. ,i«/»v( ; Storv Kq PI. decree; and Toosey i;, Mnichell. .Inc. 159, 
 § 351. A« to the efl'.ct of //'« penilenn gen- v/here, on petition, the Tonrl ordered Ih.'it 
 cr illv. cee Hellamv r. Sahine, 1 DetJ. &.!. the pnrchM'-er shr.iild he at liherty to attend 
 666;' Ivler »'. Tlioma.s, 25 Heav. 47; Sugd. inquiiies in the Muster's ollice, and have 
 V &P 759 notice of alhiroceedings, on paving the in- 
 
 7 Morvlv|. Pl.§351; Mitford Eq. PI 73; cideotal eo^ts The ( 'oint will uMially now, 
 see Stec-'e r I nvjor. 1 Min. 274. on sinnm ii-, give \\v purchaser liherly to 
 
 8 See Lawrence r I.ane, 4 (iilman. 354 ; atlen'l the proceedings at Ins own expeiine. 
 Cook r. Mancius, 5 .John. Ch. 69; Carow
 
 282 OF PARTIES TO A SUIT. 
 
 Ch. V. § 2. ,|uiro a riijlit to call upon liiiu either to reimburse him the whole 
 ^~ Y ^ or ]):irt of the ph\intili''s demand, or to do some act towards 
 reinstatiuij: the defendant in tlie situation lie would have been in 
 but for the success of the plaint itl''s claim. In such cases the 
 Court, in order to avoid a multi])licity of suits, requires that the 
 parties so consequentially liable to be affected by the decree, shall 
 be before the Court in the first instance, in order that their liabil- 
 ities may be adjudicated upon and settled by one proceeding.^ 
 Thus, where a defendant in his answer insisted that he was entitled 
 to be reimbursed by A. what he might be decreed to pay to the 
 plaintiff", and therefore that A. was a necessary party, the Court, 
 at the hearing, directed the cause to stand over, with liberty to 
 Personal rep- the plaintiff" to amend by adding y)arties.^ And so, where an heir- 
 in u suit by at-law brought a bill against a widow, to compel her to abide by 
 heir to compel jj^^ election, and to take a legacy in lieu of dower, it was held that 
 elect. the personal rejTi-esentative was a necessary party ; because, m the 
 
 event of the plaintiff's succeeding, she was entitled to satisfaction 
 for her legacy out of the personal estate ; and the plaintiff" had 
 leave to amend, by making the executor a party .^ 
 In suits by Upon the Same principle it is, that in suits by specialty creditors 
 
 creditors. foi' satisfaction of their demands out of the real estate of a person 
 deceased, it is required that the personal as well as the real repre- 
 sentative should be brought before the Court ; because the personal 
 estate, being the primary fund for the payment of debts, ought to 
 go in ease of the land,^ and the heir has a right to insist that it 
 shall be exhausted for that purpose before the realty is charged ; 
 BO that, if a decree were to be made in the first instance against 
 the heir, he would be entitled to file a bill against the personal 
 representative to reimburse himself.^ The Court, therefore, in 
 order to avoid a multiplicity of suits, requires both the executor 
 and heir to be before it, in order that it may, in the first instance, 
 do complete justice, by decreeing the executor to j^ay the debt, as 
 far as the personal assets vnW extend ; the rest to be made good 
 by the heir out of the real assets.'' Upon this principle it was, 
 that where a man covenanted for himself and his heirs that a 
 
 1 Story Eq. PI. § 173 et seq., § 180; "Wi- 2 Greenwood v. Atkinson, 5 Sim. 419; 
 
 ser V. Blachlv, 1 John. Ch. 437; Erickson see also the case of Green v. Poole, 6 Bro. 
 
 V. Nesmith, 46 N. H. 371, 374; Hiidley v. P. C. 504. 
 
 Russell, 40 N. H. 109; New England, &c. 8 Lesquire v Lesquire, Rep. t. Finch, 
 
 Bank V. Newport Steam Factor}', 6 R.I. 134; see also Wilkinson v. Fowkes, 9 Hare, 
 
 1-54; see Shot well v. Taliaferro!^ 2-5 Miss. 193. 
 
 105. In !i suit against the representatives 4 Madox v- Jackson, 3 Atk. 406. 
 
 of a de'-eased partner to recover a partner- 6 Galton v. Hancock, 2 Atk. 434. 
 
 ship debt, in which the insolvency of the 6 Knight w. Krjiglit, 3 I'. Wms. 333. 
 
 surviving partner is stated, he is, neverthe- 7 Knight v. Knight, 3 P. VVnis. 333; 
 
 less, a proper party sis to the other defend- Story Kq. I'l. § 173 el se.q. ; see Co.-by v. 
 
 ants, who cannot demur to the bill for Wicklifl'e, 7 B. Mon. 120; Galton v. Han- 
 
 mi'-joinder, on account of the joinder of cock, 2 Atk. 434. 
 such survivor. Butts v. Genung, 5 Paige, 
 254.
 
 PERSONS RESISTING PLAINTIFFS DEMANDS. 
 
 283 
 
 jointure hoxise should remam to the uses in a settlement, and the 
 jointress brought a bill against the heir to compel him to rebuild 
 and finish the jointure house, and to make satisfaction for the 
 damage which she had sustained for want of the use thereof, 
 Lord Talbot allowed a demurrer, on the ground that the executor 
 ought to be a party; because the Court would not, in the first 
 instance, decree against the heir to perform his covenant, and then 
 put the heir upon another bill against the personal representative 
 to reimburse himself out of the personal assets.-' 
 
 A bill of discovery of real assets might, however, be brought 
 against the heir, in order to preserve a debt, -wHithout making the 
 administrator a party, where it is suggested that the representa- 
 tion is contested in the Ecclesiastical Court ; ^ and where the heir 
 of an obligor would not himself administer, and had opposed the 
 plaintifi', who was a ])rincipal creditoi*, in taking out administra- 
 tion, a demurrer by him, because the administrator was not a 
 party, was overruled.^ 
 
 Where the nature of the relief prayed is such that the heir-at- 
 law has no remedy over against the personal estate, the personal 
 representative is an unnecessary party ; thus, in the case of a bill 
 filed by a mortgagee against the heir of a mortgagor to foreclose, 
 the executor of the mortgagor is an unnecessary party, because in 
 such a case the mortgagee has a right to the land pledged, and is 
 not in any ways bound to intermeddle with the personal estate, or 
 to run into an account thereof; and if the heir would have the 
 benefit of any payment made by the mortgagor or his executor, 
 he must prove it.* And it makes no difference if the mortgage 
 be by demise for a term of years, provided the mortgagor was 
 seised in fee ; in such case the executor is an unnecessary party, 
 and if made one, the bill against him Avill be dismissed Avith costs.^ 
 And where a term of 1000 years had been gi-anted, but conditioned 
 to sink and be extinguished upon payment of an annuity for 
 forty-two years, and at the exjiiratiijn of the time a bill was 
 brouglit by tlie heir of the grantor for a surrender of the residue 
 of the term, it was held that the personal representative of the 
 grantor need not be a party.* 
 
 Where, liowever, the mortgagee mixes together his cliaracter of 
 
 Ch. V. § 2. 
 
 Where repre- 
 sentation 
 contested in 
 Ecclesiastical 
 Court. 
 
 In foreclosure 
 against heir 
 of mortgagor. 
 
 > Knigtit I'. Kniuhf, 3 P. Wnm. 333; and 
 see i'.r''ssenden v. Decreets*, 2 (Jh. Ca. 1".»7. 
 
 Where heir 
 sought sur- 
 render of 
 term. 
 
 Wlierc mort- 
 gagee seeks 
 
 '^ I'iunket V. I'eiison, 2 Atk. 51; Story 
 Eq. I'l. § !tl. 
 
 » I)'Aranda ». Whiftiiigham, Mos. 84; 
 Story Kij. I'l. §§ 175, IHf;, 160; gee 4 Kent 
 
 (lltfi cd.), 1H4-If'»i and notes. 
 
 * Duucoiid.e V. H.in-ley, 3 I'. Wms. 333, 
 notes; Kell v. Brown, 2" IJro. C. C. 270; 
 bti.ry Kfj. I'l. ^ 1<)6, 200. 
 
 * i'.rad-liaw y. Outrain, 13 Ves. 234. If 
 
 the mortgage was of a chattel interest, of 
 cours(^ tl)e execulor, and not the heir, 
 would he the proper party; and iffreehold 
 and leasehold estnten jim liotli cuniprised 
 itj the same mortgage, hoth the heir and 
 executor will he necessary parties to a hill 
 Of foreclosure. Kohiiis v. Hodgson, Holla, 
 16 Fi'l)., 171I4. 
 
 " ISamplield v. Vaughun, Keijt. t. Finch, 
 104. 
 
 relief as a 
 
 general 
 
 creditor.
 
 284 
 
 OF TAKTIES TO A SUIT. 
 
 Cii. V. § 2. 
 
 Right of 
 niortfiajioe to 
 provo ji,ic;iinst 
 piTsoiuiltv for 
 whole tloiit, 
 and to roalize 
 his security. 
 
 "When sale 
 directed, 
 instead of 
 foreclosiu'e. 
 
 mi^vtu'.'iuoo and gcMiorul creditor, and socks relief beyoiitl that to 
 wliiili Ills position of mortgagee by itself would strictly entitle 
 him, then it would a]i])car that the personal representative of the 
 mortgagor must be a pail y to the bill, and there must be an ac- 
 count of the ])ersonal estate. It may here be observed, that the 
 d(.)ubt which formerly existed whether, when the mortgaged estate 
 is insulHcicnt to satisfy the amount charged upon it, and the per- 
 sonalty is also inadequate to i)ay all the debts, the mortgagee was 
 entitled to prove against the personalty for the whole of his debt, 
 or only for the residue, after deducting what he has received from 
 his security,^ has now been removed by the decision of Lord Cotten- 
 ham, in the case of 3Iason v. Bogg^ where it was determined, that 
 a mortgagee may j)rove for the whole debt, and then realize his se- 
 curity, and afterwards take a divi<lcnd on the whole debt; ])rovided, 
 of course, that the amount of the dividend is not more than the 
 unpaid balance.^ In suits of this description, the Court will decree, 
 not a foreclosure, but a sale of tlie estate,* a decree to which a mort- 
 gagee is not ordinarily entitled upon a bill filed by him, without 
 
 1 Mason v. Bopp;, 2 M. & C. 443 ; Green- 
 wood V. 'I'aylor, 1 \\. & M. 185; Greenwood 
 V Firth, 2 llare, 241, n. ; Tipping v. l^ower, 
 1 II;ire, 405; Marshall v. Macartney, 3 Dr. 
 & W. 232; I^pxfer v. Arnold, 1 Sumner, 
 109; Mar-hall v. McAravey, 3 Dr. & War. 
 232. A mortgagee, who has entered for 
 condition hroken, may have an action on 
 the bond, and he will recover the diti'erence 
 between the value of the land and the 
 amount of the [rincipal nnd interest on the 
 bond. Amory v. Fairbanks, 3 Mass. 562; 
 Newall r. AV right. 3 Mmss. 150; 4 Kent 
 (11th ed.), U4; Tooke v. Hartlev, 2 Bro. 
 C. C. (Perkins's ed ) 126, 127, ai d notes; 
 I'eiry v. I'arker, 8 Sumner's Yes. 527, 
 Perkins's ncjte («), and cases cited; Hatch 
 V. White, 2 Gall. 152; Globe Ins. Co. v. 
 Lansing, 5 Cowen, 380; Omaly v. Owen, 3 
 Mason, 474; Lansing ». Goelet. 9 Cowen, 
 346; Lowell v. Leiaiid, 3 Vt. 581; Callum 
 V. I'lmaiiuel, 1 Ala. N. S. 23. The value 
 of tiie hind may he ascertained eitlier by a 
 sale, or by estimate, and proof of the value 
 of tiie property mortgaged. See 4 Kent 
 (lltheil.), 182"; Tooke ?J. Hartlev, 2 Hro. 
 C C. (Perkins's ed.) 120, 127, aiid notes; 
 Hodge y. Holmes, 10 I'ick. 380, 381 ; Amory 
 » Fairb;inks, 3 Mass. 562 ; Newall v. 
 Wri(;ht, 3 Mass 150; Brigizs t?. Richmond, 
 10 Pick. 396 ; West v. Chamberlain, 8 
 Pick. 336; Hart v. len Eyck, 2 John. Ch 
 62; Wiley v. Angel, 1 Clarke, 217; buf- 
 fern v .Johnson. 1 I'a'ge, 450; Downing v. 
 Pahnateer, 1 Monroe, 66; M'Ciee ». Davie, 
 4 -I. -J. .M:'r.^h. 70; Hank of Ogdensburg ». 
 Arnold, 5 Paige, 38. 
 
 ■2 2 .M. & C. 443; iJur. 330; Armstrong 
 r. Storer, 14 Beav. 535, 538; Tucklev v. 
 Thomi)Son, IJ. & H. 126, 130; Uhodes v. 
 
 Moxhav, 10 W. R. 103, V. C. S.; Dighton 
 V. Withers, 31 Beav. 423. 
 
 3 The rule i^ settled otherwise in Massa- 
 chusetts, where it is held tiiat the mort- 
 gagee could not prove for his whole debt 
 and j'et retain his mortgage; and thiit if 
 he dues prove his whole debt, and accept 
 a dividend on his whole debt, he thereby 
 waives his mortgage. Amory v. Francis, 
 16 Mass. 308; Hooker v. Olmstead, 6 Pick. 
 4S1; I'owle V. liannister, 16 I'ick. 255; 
 Middlesex Bank v. Minot, 4 Met. 325; 
 Farnum v. Boutelle, 13 Met. 159. If the 
 mortgagee elects to retain his security, its 
 value must be ascertained and deducted, 
 and he can only prove the reniiiinder. the 
 value of the mortgaged property may for 
 this purpose be fixed by consent of parties, 
 or a.scertained by a sale; or it may be de- 
 termined by a jury, whenever it properly 
 comes before that tribunal. Haverhill Loan 
 Fund Association v. Cronin, 4 Allen, 141, 
 144. 
 
 4 Daniell v. Skipwith, 2 Bro. C. C. 155; 
 see also Christo[)her v. Sparke, 2 .J. & W. 
 229; King ». Smith, 2 Hare, 239, 242; 7 
 Jur. 694; Seton, 289, f< .fry ; 2 Storv Eq. 
 Jur. §§ 1025, 1026, 1027; 4 Kent (Utfi ed.), 
 146, 215. It is not a matter of cour^e, on a 
 bill f r foreclosure and sale, to order the 
 wlioleof the mortgaiied premises to be s(dd. 
 Under certain circumstances no more will 
 be sold than enough to pav the debt and 
 co-ts. Delaliij;arre v. liu-h, 2 John. 490; 
 Suffern V. .Johnson, 1 Paige, 450; Biinker- 
 hotf ». Thalhimer, 2 .John. Ch. 486. The 
 premises may l>e sold, either together or in 
 parcels, as will be best calculated to pro- 
 duce the h'ghest sum. Suffernj; .)ohn-on, 
 1 I'aige, 450 ; Campbell v, Macomb, 4 .lolin. 
 Ch. 534.
 
 PERSONS RESISTING PLAINTIFFS DE3IANDS. 
 
 285 
 
 reference to his rights as a general creditor.^ Where the bill is 
 filed to redeem a mortgage against the heir of a mortgagee, the 
 personal representative must also, as the party entitled to the 
 money, be made a pai'ty to the suit,^ because, although the mort- 
 gagee upon paying the principal money and interest has a right to 
 a reconveyance from the heir, yet the heir is not entitled to receive 
 the money ; and, if it were paid to him, the personal representative 
 would have a right to sue him for it.^ 
 
 Where a man contracts for the purchase of an estate, and dies 
 intestate as to the estate contracted for, before the completion of 
 the contract, the vendor has a right to file a bill against his per- 
 sonal representative for payment of the purchase-money ; but if he 
 does, he must make the heir-at-law a party, because the heir is the 
 person entitled to the estate. And, for the same reason, where the 
 vendee, after the cause was at issue, died, having devised the estate 
 Avhich was the subject of the suit to infant children, and the plain- 
 tiff revived against the personal representatives only ; it was held, 
 that the infant devisees were necessary parties, and the suit was 
 ordered to stand over, in order that they might be brought before 
 the Court.* 
 
 Upon the same princijjle, if a vendor were to file a bill against 
 the heir, the heir would have a right to insist upon the personal 
 representative being' brought before the Court, because the pur- 
 chase-money is, in the first instance, payable out of the personal 
 estate.* But where a bill stated that an estate, purchased in the 
 defendant's name, was so purchased in trust for the plaintiff's 
 ancestor, who paid the purchase-money, and prayed a reconvey- 
 
 Ch. V. § 2. 
 
 In redemp- 
 tion suits, 
 personal rep- 
 resentative 
 a necessary 
 party as well 
 as heir. 
 
 Heir-at-law 
 of purchaser 
 in suit for 
 specific per- 
 formance. 
 
 Where ven- 
 dee dies, 
 pcndtate U(e. 
 
 Personal rep- 
 resentatives 
 of purchaser. 
 
 1 The cases in which a mortgaj^ee may 
 have a .^alH instead of a f<(rec!o--ure, are, — 
 
 I, w hiTc the estate is ilelicieut to p ly tiie 
 inciiiultrance; 2, where the mortgage is of 
 a dry revei(>ioii; 3, where the niortiiagee 
 die- iind the equity cpf redemption dfscends 
 U|pon an i.fint; 4, wliere tlic mortgage is 
 ol a.i mlvowso 1 ; i>, where tne mortgag /r 
 hi'couie.s a bankrupt; and 6, where a niort- 
 
 fage is of an estate in Ireliind. See '2 
 "o-vfll on .M(<rtgagcs, \>y (Joventry, lOlO, 
 
 II. T. ; a .Slory Kt\. Jur. "§ 1020. U is now 
 enacted l)y 1) & l>> Vic. c. >)0, § 4H, that 
 '"it HI. a I lie lawful for the L'ourt in nny 
 suit for the tmcchi'-ure of the i-ipiity of re- 
 deuipliou in any lunrtgaged |>ro|)(;riy, upon 
 the rec|ue.Hi of the mortgagee, or of any 
 suhsui|u<-tit iiicuuihrancer, or of liie mort- 
 gag If, or any person chiiinitig under them 
 repectively, to direct a -ale (see llursl v. 
 lliir.-t, Hi "IJ. av. :{"2; Wayn v Lewis, 1 
 lini 4h7) of 'uch piopcrty. instead of a 
 foreclo-iire of such eipiit^v of redeiiiptioii, 
 on such terms iis the Ijourt mav think tit 
 to direct, aiiil if ihu Couit Hhnuld so tidiik 
 fit, without previously iletcrinining the 
 priorities of incumbrances, or giving the 
 
 usual or any time to rejieeni." This .sec- 
 tion also provides security for parties 
 wiiose interests may be allected in certain 
 cases. 
 
 ^ Dexter v. Arnold, 1 Sumner, 109; Hil- 
 ton V. I.othrop, 4(5 .Maine, 2li7, 2i)U. 
 
 3 Ante, VJ-i. 
 
 * lowiisend V. Champernownc, 9 Pri. 
 130 ; see Cox v. Strode, 2 liM), 376; 
 Fisher v. Kay, 2 llibb, 434 ; Ilii-ton v. 
 M'Claity, 3 Litt. 274; .Morga < v. .Mor.'an, 
 2 Whca't. !»0 ; Story Kq. I'l. §§ 1(50, 177; 
 Chaiupioii V. 15rowii, 6 .(oiin. i'li. 402. To 
 a bid to enfon-e specilic perf ininince of a 
 contract for the sale of hinii mule by a 
 person who lias di-censed, all the heir.s of 
 such deceii.sed person should be made ])ar- 
 ties. Duncan v. WickliH'e, 4 Scam. 452; 
 see H(mse v. Dexter, 'J .\licli. 24(5. 
 
 s See Story Kq. I'l. § 177 ; Cocke v. 
 Evans, 9 Verger, 2>'7. I'pon a bid lor the 
 rescissi'iu of a cnitract for I iiil, for defect 
 ol title in tlie veil lor, the he rs of tlie ven- 
 dee must be made parties. Ilnslou h. No- 
 ble, 4 .1. .1. Mar-h. 13(5; see Harding v. 
 Handy, 11 Wheat. 104.
 
 /^ 
 
 286 OF PARTIES TO A SUIT. 
 
 Ch. V. §.?. nm-o, :i (loinunor, on tlio gromul lliat the oxccutor of the ancestor 
 
 " r ' was not a party, was overruled ; because tlie purchase-money hav- 
 
 intx been paid, it was quite clear, that no decree could have been 
 made against the j)ersonal representative.^ 
 Old rulo, as lT})on the same ])rim'ii)le tbrnu'rly, the Courts in the case of 
 
 uid'v.int* sureties, and of joint obligors in a bond, ciompelled all who were 
 obligors. bound, or tlieir representatives, to be before the Court, in order to 
 
 avoid the multi])licity of suits which would be occasioned if one or 
 more were to be sued without the others, and lelt to seek contribu- 
 tion from their co-sureties, or co-obligors in other proceedings ; but 
 we have seen that, in this respect, the 32d Order of August, 1841, 
 has altered the practice.'^ 
 
 Section III. — 0/ Objections for want of Parties. 
 
 How taken. Having endeavored in the preceding sections of this chapter, to 
 
 point out the parties who ought to be brought before the Court by 
 the plaintiif, in order that complete justice may be done in the suit ; 
 the next step is to show in what manner an objection, arising 
 from the omission of any of these parties in a bill, is to be taken 
 advantage of by the defendant, and how the defect arising from 
 such omission is to be obviated or remedied by the plaintiif.^ 
 
 And here it is necessary to remark, in the first instance, that no 
 persons are considered as parties to a suit, except the plaintiffs and 
 persons against whom the bill prays either the writ of subpoena, or 
 that upon being served with a co})y of the bill they may be bound 
 by the proceedings in the cause ; * but the mere naming a person as 
 a defendant does not make him a party .^ 
 
 1 Astley V. Fountain, Rep. t. Finch, 4. Ilopk. 555; and tliej' only are parties de- 
 
 2 See ante, p. 267 ; Genl. Ord. VII. 2. fendaiit against whom process is prayed, 
 8 See ante, 280, note 4. or who are specilicall}' named and de- 
 * Story Eq. PI. § 44; 1 Smith Ch. Pr. scribeil as defendants. Tidmage v. IVll, 9 
 
 (2d Am.'ed.) 86; Walker i;. llallett, 1 Ala. Paige, 410; Lucas v. Bank otDarien, 2 
 
 (N. S.) 379; Lucas v. Bank of Darien, 2 Stewart, 280; (Jreen v. McKenney, 6 ,1. J. 
 
 Stewart, 280; Lvle i'. Bradford, 7 Monroe, Marsh. 193; Moore v. Anderson, 1 Ired. 
 
 113; Huston v. M'Clarty, 3 J.itt. 274; De Ch. 411; Harris » Carter, 3 Stewart, 233. 
 
 Wolf r. :Mallett, 3 l)an:i, 214; Taylor v. Where a minor, a necessary party, was not 
 
 Bate, 4 Monroe, 267. In New York parties named in the bill, he cannot be considered 
 
 may be treated as defendants, by a clear a defendant, although an answer is filed 
 
 statement in the bill to that effect, without for him by bis guardian nd liltm. Dixon 
 
 praying the su/jpwin. The reason given is v. Donaldson, .). J. Marsh. 575. 
 
 that, in that State, the S!i6/xj?nrt is issued of ^ Windsor v. Windsor, 2 Dick. 707; 
 
 course, and that a formal prayer is unnec- Carey v. Hillbouse, 5 Geo. 251; Cassiday 
 
 essary to entitle the jilaintitt' to process. v. Mc Daniel, 8 B. Mon. 519. To make 
 
 Brasher «;. C"rtlMii(lt, 2 .lohn. Ch. 245; El- him such, process must lie issued and 
 
 mendorr. Delancv,! Hopk.y55; Verplanck served upon him. B')nd v. Hendricks,! 
 
 V. Mercant. Ins. Co ,2 Paige, 438. But un- A. K. Marsh. 594; White v. Park, 5 J. J. 
 
 less the plaintiflT, either in the praj'er for Marsh. 603; Estill v. Clay, 2 A. K. Marsh, 
 
 process or bv allegation in tlie bill, de.sig- 497; Huston v. M'Clarty, 3 Litt 274; 
 
 nates those wtio are made defendants, the Archibald v. Means, 5 Ired. Eq. 230. 
 omission is fatal ; Elmendorf v. Delancy,
 
 OF OBJECTIONS FOR WANT OF PARTIES. 
 
 287 
 
 A defect of parties in a suit may be taken advantage of either Ch. V. § 3. 
 by demurrer, plea, answer,^ or at the hearing.^ " 1 ' 
 
 Whenever the deticiency of parties appears on the face of a bill. By demurrer; 
 the want of proper parties is a cause of demurrer.^ There appears 
 to be some doubt whether a demurrer of this nature can be par- 
 tial, and whether it must not extend to the whole bill. And in 
 the case of The East India Coiiifpany v. Coles^^ Lord Thurlow 
 was inchned to think, that there could not be a partial demurrer 
 
 1 See Clark v. Long, 4 Rand. 451 ; Story 
 Eq. PI. § 236. Where the defect of w.int 
 of parties is formal, or techuicul merely, 
 the objection must be made by demurrer, 
 plea, or answer. Postlethwaite v. Howes, 
 3 Clurke (Iowa), 365; Story v. Livingston, 
 13 Peters, 359; Sayles v. Tibbitts, 5 K. L 
 79; Kean v. Johnson, 1 Stockt. (N. J.) 
 401; Chapman v. Hamilton, 19 Ala. 121; 
 Smith V. Mitchell, 6 Geo. 458. So where 
 a party omits to object, either by demur- 
 rer, piea, or answer, for want of purties 
 ■who are only necessary to protect himself, 
 the Court may refuse to sustain the objec- 
 tion at the hearing. Dias v. Bouchard, 10 
 Paige, 445; Lorillard v. Coster, 5 I'aige, 
 172; Lainhart v. Reilly, 3 Desaus. 570; 
 Gilbert v. Sutliff, 3 Ohio (N. S. ), 129 ; Mc- 
 Maken i'. McMaken, 18 Ala. 576 ; Cutler v. 
 Tuitle, 4 C. E. Green (N. J.), 549, 556. 
 
 2 When it is manifest that a decree will 
 have the effect of depriving third parties 
 of their legal rights, it is incumbent on the 
 Court to notice the fact at the hetiring, 
 and cause them to be brought in ; and the 
 proper course, in such case, is to order the 
 cause to stand over to enable the plaintitf 
 to bring such necessary parties before the 
 Court. Shaver r. Brainard, 29 Barb. (N. 
 Y.) 25; Herrington r. Hubbard, 1 Scam. 
 669; Clark f. Lon;:, 4 Band. 451; Hussey 
 V. Dole, 24 Maine, 20; O'Brien v. Heeney, 
 2 Kdw. Ch. 242; t;aMnon v. Norton, 14 Vt. 
 178; Miller v. M'Crea, 7 Paige, 452; Felch 
 V. Hooper, 20 Maine, 159; Na.sh v. Smith, 
 6 Conn. 421 ; Bugbee v. Sargent, 23 Maine, 
 269; Lord «. I'l.derdurick, 1 Sandt. Cii. 
 146; Postlethwaite v. Howes, 3 Clarke 
 (Iowa), 365; Prentice v. Kimball, 19 HI. 
 320; .NIorse f. ALichias Water Power Co., 
 42 Maine, 119; Per Wayne J. in Lewis v. 
 Darling, 16 How. U. S. 1, 8, 9; Wiiinipi- 
 Beogee Lake Conifianv v. Worster, 29 N. 
 IL 433; Miller v. V\hi'ttier, 33 Maine, 5ai; 
 Davis r. Bogers, 33 Maine, 222: Bailey v. 
 Myrick, 36 Maine, 50; Beals r. Cobb, 51 
 Maine, 351; Pierce r. Faunce, 47 Maine, 
 607, 513; Schwoerer v. Boylston Market 
 Association, 99 Mh.hs. 285,295; Webber v. 
 Taylor, 6 Jones Kq. (N. C ) 36; Ib.e v. 
 Wilson, 9 Wallace U. S. 601; Woodward 
 c. Wood, 19 Ala. 213. 
 
 'I'hia couroe will be adopted where it is 
 found that nn efl'ectual decree cannot be 
 made, binding upon all persons in interest, 
 for want of proper parties, although the 
 objection has not been raised by cither 
 
 party. O'Brien v. Heeney, 2 Edw. Ch. 
 242;' Herrington v. Hubbard, 1 Scam. 569; 
 McMaken r. McMaken, 18 Ala. 576; Good- 
 man V. Barbour, 16 Ala. 625; Booraem v. 
 Wel!s,4C. E.Green (N.J. ), 87, 95; Brown 
 r. Johnson, 53 Maine, 251; Beals v. Cobb, 
 51 Maine, 348, 351; Pierce ». Fautice, 47 
 Maine, 507, 513; Schwoerer v. Boylston 
 Market Association, 99 Mass. 295; Hoe v. 
 Wilson, i>bi supra. A bill should not be 
 dismissed for want of necessary parties, as 
 they can either come in voluntarily, or 
 mav be summoned in. Potter v. Holdeu, 
 31 'Conn. 385; Thomas v. Adams, 30 111. 
 37. But if after objection is made for want 
 of necessary parties, the plaintitf neglects 
 or refuses t'o bring them belore the Court, 
 the bill will be dismis'^ed. Singleton v. 
 Gavle, 8 Porter, 270; Hunt v. Wicklitfe, 2 
 Porter. 201; Bailey v. Myrick, 86 Maine, 
 50, 54'; see St. Mass. 1862, c. 218, § 9. 
 But such dismissal should be without pre- 
 judice. Huston V. M'Clarty, 3 Litt. 274; 
 Kovce V. Tarrant, 6 J. J. Marsh. 567; 
 Caldwell v. Hawkins, 1 Litt. 212; Hack- 
 with V. Damron, 1 Monroe, 239; Van Eppa 
 V. Van Deusen, 4 I'aige, 64; Payne v. 
 Richardson, 7 J. J. Marsh. 240; Harris v. 
 Carter, 3 Stewart, 233. So a bill must be 
 dismissed, when persons, who are neces- 
 sary parties, refuse to appear, and the 
 Court has no power to reach them by its 
 process, and compel them to become par- 
 ties; Picquet V. Swan, 5 Mason, 561; but 
 without prejudice. Ibid. 
 
 A motion to be admitted as a defendant 
 to a suit is irregular. Harrison v. Morton, 
 4 Hen. & M. 483. But persons whose in- 
 terest is ar)[)arent, if not niaile parties, 
 may be allowed to bring forward their 
 claim by petition. Birdsong r. BirdH)ng, 
 2 lleatl^Tenn.), 289; Morris v. Barclay, 2 
 J. J. Marsh. 374; Smith v. Britton, 2 P. & 
 H. (Va.) 124; Phillips );. Wesson, 16 Geo. 
 137 ; see nnie, 280. 
 
 8 Mitchell V. Lenox, 2 Paige, 281; Rob- 
 inson V. Smith, 3 Paige, 222; Crane v. 
 Deming, 7 (Jonn. 387 ; Story Kq PI. § 541; 
 White V. Curtis, 2 Gray, 472; Neely v. 
 Anderson, 2 btrobh. Kq. 262. And in such 
 ca.se, if tlie detect is merely formal the 
 objeclion should be taken by demurrer. 
 Chapman »'. Hamilton, 19 Ala. 121; Allen 
 V. Turner, 11 (iray, 436; Schwoerer V. 
 Boylston Market A.ssociation, 99 Mass. 295. 
 
 ^ 3 Swan. 142, n.; see also Lumsden v. 
 Eraser, 1 M. & C 689, 602.
 
 288 
 
 OF PARTIES TO A SUIT. 
 
 Cm. V. § 3. 
 
 objection 
 obviated by 
 showing 
 cause for 
 omission. 
 
 Demurrer 
 must show 
 proper 
 parties. 
 
 lov Avaiit of pailios; but upon INff. jMitford iiuMitioning some cases,^ 
 wlieiviu surh |»:irtial (K'liuirnM-s had hccii allowed, the case was 
 ordered to staiul over to the next day of demurrers; in the mean 
 time, liowever, the j)laintiH:''s eounsel, thinking it better for his 
 elient, ameiuled the bill. 
 
 It is to be observed, that if a suflieient reason for not bringing 
 a necessary party before the Court is suggested by the bill,*^ as, if 
 the bill seeks a discovery of the persons interested in the matter 
 in question, for the purpose of making theiti parties, and charges 
 that they are unknown to tlie plaintilf, a demurrer for want of the 
 necessary parties will not hold.^ UiJon the same princij^le, where 
 it was stated in a bill that the defendant, who was the next of kin 
 of an intestate, had refused to take out letters of administration, 
 and that the plaintift' had applied to the Prerogative Court for 
 administration, but having been opposed by the defendant, was 
 denied administration, because he could not prove that the intes- 
 tate had left bona notabilia ; and that he had afterwards applied 
 to the Consistory Court of Bath and Wells, where he likewise 
 failed, because he could not prove that the intestate had died in 
 the diocese ; and that the defendant had refused to discover where 
 the intestate had died ; a demurrer for want of proper parties, 
 because the personal representative of the intestate Avas not before 
 the Court, was overruled.* 
 
 A demurrer for want of parties must show who are the proper 
 parties ; not indeed by name, for that might be impossible ; ® but 
 in such a manner as to point out to the plaintiff the objection to 
 his bill, so as to enable him to amend by adding the necessary 
 persons.® Some doubt has been thrown upon the correctness of 
 this rule, in consequence of an observation by Lord Eldon in Pyle 
 V. Priced His Lordship is there reported to have said, "that 
 
 1 Astley V. Fountain, Finch, 4; Attwood 
 V. Hawkins, Fiijch, 113; Biessenden v. 
 Decreets. 2 Ciia. Ca. 1Sj7. 
 
 2 In White o. Curtis, 2 Gray, 467, it 
 was held tliat the omission to join, as a 
 delei dant in a bill, tlie adniiiii»tr;itor nf 
 ore whose death is alleged in the bill, 
 cani/ot be uiken advantage of by demur- 
 rer, wlii-n it do< s not lippear Ijy the bill 
 that there is siiiy such aitniinistratur. It 
 does not appiar to have been regarded, in 
 thi< ciise, as necessiiry, that ;iny leai-on 
 should be staled why the adiumi-trator 
 •was not ap|iointed. IJut the Court stated 
 that the necessity or propriety ol intio- 
 ducing the adminis'rator was not api>arent 
 from tlie averntenls in the bill. 
 
 3 Ld lied. If^O; Towle i'. fierce, 1 2 Met. 
 328; see Uilni>in v. Cairnes, ] Brt-ese, 
 124; Coe v. Beckwith, 31 Barli. (N. Y.) 
 339; Davis v. Hooper, 33 Miss. (4 Geoige) 
 
 173; De Wolf v. De Wolf, 4 \\. I. 450; 
 Bailey v. .Morgan, 13 Texas, 342. 
 
 ■* D'Aranda v. Whittingham, Mos. 84. 
 
 ^ Tourtopi V. Flower, 3 1'. Wms. 3G9. 
 
 6 Ld. b'ed. Ibl; Attornev-Oneral v. 
 Jackson, 11 Ve*. 369; Lund v. Bl^nshard, 
 4 Hare, 23; and see Pratt ». Keith, 10 Jiir. 
 N. S. 305; 12 W. R 394, V. C. K., where 
 the detendmt was allowed, by deinurrer 
 ()/-e teniis, to specify the parties. Story 
 Eq. PI. § .^>41 and notes; McElwain v. 
 Willis, 3 I'aige, 5(15; Lnullev v. (Cravens, 
 2 Blackf. 426; .latneson j?.' Desliie ds, 3 
 Grattan, 4; Chapman v. Hamilton, 19 Ala. 
 121; HiglUower v. Mustim, 8 Geo. 506; 
 Neelv V. Anderson, 2 Strohh. Kq. 262; 
 see H.-.rrison v. Bowiin, 4 Wash. C. C. 202; 
 Arundell v. Black well, Dev. Kq. 354; 
 Gieenleaf v. Queeti, 1 Pet(ns, 138. 
 
 7 Ves 7fci; au'l .'■ee Att'Tney-General 
 V. Corp Tatii II of Poole, 4 M. & C. 17, 32; 
 2 Jur. 934, 1080.
 
 OF OBJECTIONS FOR WANT OF PARTIES. 
 
 289 
 
 beside the objection whicli had been mentioned at the bar, to the Cn. V. § 3. 
 
 rule which required the party to be stated, it might appear that " y ' 
 
 the plaintiff knows the party," and then to have observed, "per- 
 haps there is not a general rule either way." It is submitted 
 however, that this observation of Lord Eldon does not at all 
 shake the rule which has been laid down, as to the necessity of 
 pointing out who the necessary party is, but merely refers to the 
 observation made at the bar, that there was no rule requiring a 
 demurrer to state the parties, that is, by name, as it might be out 
 of the power of the defendant to do so ; and that it does not refer 
 to the necessity of calling the plaintiff's attention to the descrip- 
 tion or character of the party required, in order to enable him to 
 amend his bill, without putting him to the expense of bringing 
 his demurrer on for argument, which he might otherwise be 
 obliged to do, in order to ascertain Avho the party required by the 
 defendant is. 
 
 Where a demurrer for want of parties is allowed, the cause is Amendment 
 not considered so much out of Court but that the plaintiff may demurrer, 
 afterwards have leave to amend, by bringing the necessary parties 
 before the Court.^ And where tlie addition of the party would 
 render the bill multifarious, the plaintiff will be allowed to amend 
 generally.^ And where the demurrer has been ore tenus, such 
 leave Avill be granted to him without his paying the costs of the 
 demurrer ; though, if he seeks, under such circumstances, to amend 
 more extensively than by merely adding parties, he must pay the 
 defendant the cost of the demurrer.^ 
 
 Upon the allowance, however, of a demurrer for want of parties, Leave to 
 the plaintiff is not entitled as of course to an order for leave to «mend may 
 
 •1 -, • T ' r- "^ reuised. 
 
 amend. When it is said that a bill is never disnussed lor want of 
 parties,* nothing more is meant than that a plaintiff, who would 
 be entitled to relief if proper parties were before the Court, shall 
 not have his bill dismissed for want of them, but shall have an 
 opportunity afforded of bringing them before the Court;'' but if, 
 at the hearing, the Court sees that the plaintiff can have no relief 
 under any circumstances, it is not bound to let the cause stand 
 over that the plaintiff may add parties to such a record.® 
 
 1 Bressendcn v. Decreets, 2 Cli. Ca. 197; 
 see also Lloyl v. Loarinj;, tJ Ves. 773; 
 Story Kq. PI. § ■04.3 and not'', in which ia 
 a form ot demurrer (i.r want of neccsary 
 parties. AUen r. Turner, 11 tjr;iy, •136. 
 
 2 Lums<lcn v. Fraser, 1 M. & C. 589, 
 602; Attorney-General v. Merchant Tai- 
 lors' Co., 1 M. & K. 1H9, 194. 
 
 8 Newton V. Lord JCgnumt, 4 Sim. 585. 
 
 * IJiit see anic, 2K7, nfite, to this point, 
 and Nash v. Smith, G Conn. 422. The 
 bill is somet'ui'js disinis-ed for WMnt of 
 proper pirtien, hut without prejudice to 
 the plaintitr« right to bring a new suit, 
 vou I. 
 
 Miller v. M'Crea, 7 I'aige, 452; Huston v. 
 M'Clarty, 3 Litt. 274; Steele r. Lewis, 1 
 Monroe, 49; Hovse v. Terrstnt, G J. J. 
 Mnrsh. 567 ; Story Eq. PI. § 541 ; post, 293- 
 295, note; aide, note to p. 287. 
 
 6 See Potter v. Holden, 31 Conn. 385; 
 Thomas v. Adams, 30 111. 37; ante, 287, 
 note. 
 
 6 Tyler v. Bell, 2 M. & C. 110; see 
 Story Iv]. PI. § 541, and note; Husscdl v. 
 Clarke, 7 Cranch, 09, 90; Lund v. Hlnn- 
 shard, 4 Ihire, H, 2."; 1 C. I'. C"op. t. Colt. 
 39; Li>t(r v. Mcadowcrofi, ill. 372. 
 
 19
 
 290 
 
 OF PARTIES TO A SUIT. 
 
 Not allowed 
 if sultti-ient 
 excuse al- 
 lowed by bill ; 
 
 unless plea 
 controvert it. 
 
 Amendment 
 after plea. 
 
 Objection by 
 answer. 
 
 If tl\c (lofoct of j)nrtios is not ai)]):troiit ujioii tlie fiicc of the bill, 
 the (lofect may be brought before the Court by plea, which must 
 a\ IT the matter necessary to show it.^ A plea for want of proper 
 })arties is a plea in bar, and goes to the whole bill, as well to the 
 discovery as to the relief, Avhere relief is prayed ;'^ though the want 
 of parties is no objection to a bill for discovery merely,^ 
 
 Wliere a sufficient reason to excuse the defect is suggested by 
 the bill,* where a personal representative is a necessary party, and 
 the bill states that the representation is in contest in the Eccle- 
 siastical Court; ^ or where the party is resident out of the juris- 
 diction of the Court, and the bill charges that fact ; " or where the 
 bill seeks a discovery of the necessary parties,'' a plea for want of 
 parties will not, any more than a demurrer for the same cause, be 
 allowed, unless the defendant controverts the excuse made by the 
 bill, by i)leading matter to show it false.* Thus, in the first in- 
 stance above put, if before the filing of the bill the contest in the 
 Ecclesiastical Court had been determined, and administration 
 granted, and the defendant had showed this by his plea, the objec- 
 tion for want of parties would not in strictness have been good. 
 
 Upon arguing a plea of this kind, the Court, instead of allowing 
 it, generally gives the plaintiff leave to amend the bill, upon pay- 
 ment of costs ; a liberty which he may also obtain after allowance 
 of the plea, according to the common course of the Court, for the 
 suit is not determined by the allowance of a plea.^ 
 
 The defendant may also by his answer object that the bill is 
 defective for want of parties, in which case the plaintifi" is now, 
 under the 39th Order," of August, 1841, within fourteen days after 
 
 Adams v. Stevens, 49 Maine, 362; see 
 Moodie v. Bannister, 19 Eng. Law & Eq. 
 81. But the Court will not proceed to 
 take an account in the absence of a neces- 
 sary party, though he is out of the juris- 
 diction. Hogan V. Walker, 14 How. IJ. S. 
 46; Wilson v. City Hank, 3 Sumner, 422 
 Greene ?). Sisson, 2 Curtis C. C. 176, 177 
 see Shields v. Biirrow, 17 How. U. S. 130 
 Storv Eq. ri. § 78; Towle v. Fierce, 12 
 Met." 332; ante, 150, 151, 216, 217, note; 
 266, note; Lawrence v. Kokes, 53 Maine, 
 110; Mudgett V. Gager, 52 Maine, 541. 
 ' Bowj-er V. Covert, 1 Vern. 95. 
 
 8 Ld. Ked. 281. 
 
 9 Ld. Ked. 281; ante, 287, note; Harri- 
 son V. Rowan, 4 Wash. C. C. 202; Story 
 Eq. Pi. §§ 885, 886, and note, in which 
 is inserted the rules of the Supreme 
 Court of the United States on the subject 
 of amendments, adopted January Term, 
 1842. 
 
 10 This 39th Order is now abolished in 
 England by the 15 & 16 Vic. c. 86, § 43, 
 whereby the practice in existence be- 
 fore 1841 is restored; see Moodie v. Ban- 
 nister, 17 .Jur. 52(1, V. C. K. No costs are 
 given wliere the defect arises from an 
 
 1 Ld. Red. 280; Hamm v. Stevens, 1 
 Vern. 110; 2 Atk. 51; Robinson v. Smith, 
 3 Paige, 222; Story Eq. PI. § 236; Gamble 
 V. .lohnson, 9 Missou. 605. 
 
 2 Plunkett V. Penson, 2 Atk. 51; Hamm 
 V. Stevens, 1 Vern. 110. 
 
 3 Sangosar. East India Company, 2 Eq. 
 Ca. Ab. 170, PI. 28. 
 
 * Oilman ?;. Cairns, Breese, 124. 
 
 6 Plunkett r. Penson, 2 Atk. 51; Carey 
 V. Hoxey, 11 Geo. 645. But in order to 
 make the pendency of litigation, touching 
 the representation of a deceased pnrty, a 
 good excuse, the Court must be fully ad- 
 vised of the nature and condition of the 
 litigation, by the allegations in the bill or 
 bv proofs. Carey v. Hoxev, supra; see 
 Martin v. McBryde, 3 Ired. Ch. 531. 
 
 6 Cowslad V. Cely, Prec. Ch. 83; Dar- 
 went V. Walton, 2 Atk. 510; Milligan v. 
 Milledge, 3 Cranch, 220; Martin v. Mc- 
 Br\de, 3 Ired. Cli. 531 ; Parkman v. 
 Aicardi, 34 Ala. 393; Mallow v. Hinde, 12 
 "Wheat. 193; Spivey v. Jenkins, 1 Ired. 
 Ch. 126 ; Ashmead v. Colby, 26 Conn. 287 ; 
 Carey v. Hoxey, 11 Geo. 645; West v. 
 Smith, 8 How. U. S. 409; Erickson v. 
 Nesmith,46N. H. 371; Story Eq. Pi. § 78;
 
 OF OBJECTIOXS FOR WANT OF PARTIES. 291 
 
 ans"vrer filed, at liberty to set down the cause for argument upon Ch. V. § 3. 
 that objection alone. If he does so, the objection is argued, the ' - r ^ 
 plaintiff commencing. After the argument, the Court makes an 
 order, declaring its opinion upon the record as it then stands ; but 
 the objection cannot finally be disposed of until the hearing, be- 
 cause it is impossible at the beginning of a cause to declare who 
 will be necessary parties at the end.^ If, on the other hand, the 
 plaintiff does not set down the cause upon the objection for want 
 of parties, he subjects himself to the penalty, that he will not at 
 the hearing be entitled, as of course, to an order to amend by 
 adding parties ; he would still, however, be at liberty to make out 
 a special case for the exercise of the discretion of the Court in his 
 fiivor, and the Court would then have to decide whether his bill 
 should be dismissed for want of parties, or retained with liberty 
 either to amend,^ or to file a su])})lemental bill for the purpose of 
 bringing the proper parties before the Court. It is to be observed, 
 that the Order only allows fourteen days after answer for the 
 plaintiff to set down his cause upon the objection for want of 
 parties, but the V. C. of England has decided, that this only 
 means that the cause may bo sot down within this period as a 
 matter of course, but that afterwards the leave of the Court may 
 be obtained.^ ProN^iously to the Orders of 1841, when an objection 
 for want of parties was taken at the hearing, the rule with respect Rxiie as to 
 to costs was, that if the objection for want of ])arties had been ^°^^^ 
 taken by the defendant's answer, or if it arose upon a statement 
 of the bill, then the liberty to amend or file a supplemental bill, 
 was not given to the plaintiff, except upon the terms of his ])aying 
 to the defendant the costs of the day ; but if the objection de- 
 f»cn<lod upon a fact within the defendant's knowledge, and was 
 not raised by his answer, the order would be made without pay- 
 ment of costs of the day.^ 
 
 event occurring after tlie cause is at issue; 673; 2 Jur. N. S. 76; Feltham v. Cliirk, 1 
 
 see FuHSL'll V. Klwiii, 7 Hare, 2'.i; 13 .Jur. De G. & S. 207. Assignees of a bankrupt 
 
 833. For form of order on cause standing were diiected to be served with a copy of 
 
 over with leave to amend on payment of a decree miidein their absence. Dorsett v. 
 
 cost'* of tlie day, see Scton, 1113, No. 1. Dorsett, 8 Jur. N. .S. 146, 147. 
 
 I'lidor the present practice of the Court in i Uradstock t'. Wliatiey, 6 Re;iv. 451. 
 
 Kn;;i:iiul, objections for want of pirties are - 3'.ith Order, Aug-, 1841, and S. C. ; Has- 
 
 of conipiiraiively rare occurrence; in the kell r. Hilton, 30 Maine, 421. 
 
 first [)l:ice, b'icause in mimy cases persons << Cockburn ?•. Thompson, 13 Sim. 188. 
 
 who were formerly necessary parties are * Mitchell !'. Uailey, 3 Mad. 61 ; Furze 
 
 now no lon{{er so; and secondly, because v. Sliarwood, 6 M. & C. 96; Attoruey- 
 
 the Court is now enabled to make a decree General v. Hill, 3 M. & C. 247 ; Mason v. 
 
 between the parties before it, althouf^h Franklin, Y. & C. 242; Kirwan v. Daniel, 
 
 there are other pirties not before it who 7 Hare, 347, 3ril; I'erkin v. Hradley, 1 
 
 are interested in tiie question to be deter- Mare, 21!t, where notice of disclaimer had 
 
 mined. 1 'i & 16 Vic. c. 86, § 61 ; see also been f;iven to the objecting defendant ; as 
 
 OrlerXXIM. 11; and see Meddowcroft «. to the ainf)unt of costs, see 3.")tli Ord. 1828; 
 
 Cainpi»'dl, 13 IJeav. 184; see also May ;;. Geiil. Ord. XF.,. 22; Selon, 1117; s"e Colt 
 
 Selbv, 1 Y.&C. C. C. 23.5, 238; 6.1ur."52; v. Lasnier, 3 Cowen, 320; Story Imj. I'l. 
 
 Faulkner v. Daniel, 3 Hare, 199, 213; § 541. When the objection is taken by 
 
 Daiil)u/, /^ I'eel, 1 C. P. Coop. t. Cott. 365; demurrer, and sustained, the defendant 
 
 Maybery v. IJrooking, 7 De G , M. & G. will be entitled to his costs; but when it
 
 ouo 
 
 OF TAUTIKS TO A SUIT. 
 
 Cii.V. $.?. 
 
 in what cjxses. 
 
 Leave to 
 ameiifl not 
 given, it" 
 nature of case 
 made by bill 
 ■will be 
 chanived. 
 
 Objection 
 oiij(ht to be 
 taken at the 
 openint^; 
 
 TIu> rotuMit (~)r(lers do not Mppoar directly to liave affected tliis 
 vide eoneei-iiing costs in such cases, but the 40th Order, of August, 
 1841, ])rovi(U^s, that if the defendant sliall at the liearing of a 
 cause object tliat a suit is defective for want of parties, not having 
 by jdea or answer taken the objection, and therein sj)eciHe(l by 
 name or (k'scrij)tion the parties to whom the objection applies, the 
 Court, if it shall think fit, may make a decree saving the rights of 
 the absent parties.^ 
 
 The discretion given to the Court by this Order will only be 
 exercised in cases Avhere the rights of the absent party can be 
 protected by the decree as if he were present; or at all events 
 where the rights cannot be prejudiced by a decree made in their 
 absence.^ Consequently, in a suit for the execution of a trust 
 created for the benefit of creditors, against the trustees, Sir James 
 Wigram V. C. refused to make a decree in the absence of the 
 person who created the trust, or his personal representative.^ 
 
 The Court will not, at the hearing, give leave to the plaintifi" to 
 amend by adding ])arties, if by so doing the nature of the case 
 made by the bill will be changed;* an order was however made 
 at the hearing, that the plaintifis should be at hberty to amend 
 their bill by adding parties, as they should be advised, or by 
 showing why they were unable to bring the proper j^arties before 
 the Court.^ 
 
 The proper time for taking an objection for want of parties is 
 
 upon opening the pleadings, and before the merits are discussed ; ® 
 
 but it frequently happens that after a cause has been heard, the 
 
 Court has felt itself compelled to let it stand over for the purpose 
 
 of amendment^ 
 
 T Jones V. Jones, 3 Atk. 11; ante, 287, 
 note. An objection for want of parties 
 may betaken on the hearing of an appeal. 
 Holdsworth v. Holds worth, 2 Dick. Tj9; 
 and see Magdalen Collese r. Sil)lhorp, 1 
 Russ. 154; see Felch v. Hooper, 20 Maine, 
 163, 164; Husaey v. Dale, 24 Maine, 20; 
 New London Bank r;. Lee, 11 Conn 112; 
 Winnipi^eogee Lake Co.w. Worcester, 29 
 N. H. 433; Clark v. Long, 4 Kand. 451; 
 Miller v. M'Can, 7 Paige, 452; Cabeen v. 
 Gordon, 1 Hill Ch. 63; K. O wing's ca^^e, 1 
 Bland, 2'J2; Story Eq. PI. §541; Kobinson 
 V Smith, 3 Paige, 222; Mitchell v. Lenox, 
 2 Paige, 281; Evans v. Chism, 18 Maine, 
 223; Clifton v. Haig, 4 Desaus. 331. But 
 in Ferguson v. Eisk, 28 Conn. 511, it was 
 held, that no objection for want of par- 
 ties could be made after a hearing on the 
 merits, either liefore the Court or its com- 
 mittee. See Chipman v. City of Hartford, 
 21 Conn. 489; New London Bank v Lee, 
 11 Conn. 120. The ordinary course in 
 Chancery, where a want of proper parties 
 appears at the hearing, is for the cause to 
 stand over in order that they may be added. 
 Colt V. Lasnier, 3 Cowen, 320. 
 
 is taken at the hearing only, the defendant 
 is usually not entitled to bis costs. Story 
 Eq. Bl. §541. 
 
 1 Story Eq. PI. § 236, note. The same 
 rule has been adopted by the Supreme 
 Court of the United States, 53d Equity 
 Rule of S. C. of U. States, .January Term, 
 1842. See Clvmer v. .James, Halst. Dig. 
 168; post, 294, 295, note; Story Eq. PI. 
 § 332; Greene v. Sisson, 2 Curtis C. C. 
 171, 177. 
 
 - See Greene v. Sisson, 2 Curtis C. C. 
 171, 177; V/ilson v. City Bank, 3 Sumner, 
 422; Hogan v. Walker, 14 How. U. S. 36; 
 McCall V. Yard, 1 Stockt. (N. J.) 358. 
 
 3 Kimber v. Ens worth, 1 Hare, 293,295; 
 6 Jur. 165; see also May v. Selby, 1 Y. & 
 C. 237 ; and Faulkner v. Daniell, 3 Hare, 
 199. 
 
 4 Denistoti r. Little, 2 Sch. & Lef 11 n. ; 
 and see Watts v. Hyde, 2 Phil. 406, 411; 
 11 Jur. 979; Bellamy v. Sabine, 2 Phil. 
 425, 427. 
 
 s Milligan v. Mitchell, 1 M. & C. 511; 
 Story I'^q. PI. § 541, note. 
 
 '' Jones V. Jones, 3 Atk. Ill; Alderson 
 f. Harris, 12 Ala. 580; Van Doren t;. Rob- 
 inson, 1 C. E. Green (N. J.), 256.
 
 OF OBJECTIONS FOR WANT OF PARTIES. 293 
 
 The objection for "want of parties ought to proceed from a Cn.V. §3. 
 
 defendant ; for it has been decided that the plaintiff bringing his ^— — r ^ 
 
 cause to a hearing without proper parties, cannot put it off with- and ought to 
 out the consent of the defendant.^ Cases of exception may defendant?™ 
 occur, where, for instance, the plaintiff was not aware of the 
 existence of persons whose claims could touch the interests of 
 those who were upon the record; but that ought to be clearly- 
 established ; and the plaintiff ought to apply as soon as he has 
 obtained that knowledge."^ 
 
 A jdaintiff may at the hearing obviate an objection for want of Plaintiff may 
 a particular party, by waiving the relief he is entitled to against ^ainstVb- 
 such party ; ^ and where the evident consequence of the establish- sent parties, 
 ment of the rights asserted by the bill, might be the giving to the 
 jdaintiff a claim against ])ersons who are not parties, the plaintiff 
 by waiving that claim may avoid the necessity of making those 
 persons parties.* This, however, cannot be done to the prejudice 
 of others.^ 
 
 In some cases, the defect of parties has been cured at the hear- or undertake 
 ing by the undertaking of the plaintiff to give full effect to the ^^ fheC-*' 
 utmost rights which the absent party could have claimed ; those riyhts. 
 rights being such as could not affect the interest of the defendants. 
 Thus, where a bill was filed to set aside a release which had been 
 executed in pursuance of a family arrangement, in consequence of 
 which a sum of stock was invested in the names of trustees for 
 the benefit of the plaintiff's wife and unborn children, Avhich 
 benefit would be lost if the release was set aside. Sir John Leach 
 M. R. held, that the trustees of the settlement were necessary 
 parties, in order to assert the right of the children; but U])on the 
 plaintiff's counsel undertaking that all tlie moneys to be recovered 
 
 1 Inne'* v. Jackson, 16 Ves. 356; for the nonjoinderormisjoinderof some, an objec- 
 circum-^tances uniler which the defendant tion on that account will not be allowed to 
 rou-t support his objection bv evidence, see prevail. White y. Delschneider, 1 Oregon, 
 Campbell V. Dickens, 4 Y."& C. 17, Kx. 254 
 
 R.; Barker v. rtailton. 11 L J. N. S. 372. 6 u\, Rpfi. 180; Dart v. Palmer, 1 Barb. 
 
 The objcctiiin of nii.-joiiider of purties, Cii. 92. If the case maMe by the bill en- 
 
 as (Ir-ft-ndants In a tiill, i-i a mere personal titles the p!aititiirioparticular relief aj;iiiist 
 
 privile^'e, and con-;ef|uently those only can the tlefendant, and would also entitle him 
 
 dt-miir f'lr that cause who are improperly to further relief were tlie necessary parties 
 
 joined. Gartlaiid i". Nunn, 6 Kng. 720. ' before the (Jourt, and the prnyerof the bill 
 
 2 FniiPH r Jackson, supra; see Thomp- specilicaHy asks for the ni'ire"ext<-nded rc- 
 son ?•. I'eel)l(', 6 Dana, 3!j2. lief, to winch the ijlaintiff is not entitled in 
 
 ■'' I'a.vlet V. The IJishop of Lincoln, 2 consequence of tin' defect of jiartics, the 
 
 Atk. 2!j»;. defeiuiant mav demur to the wiioh; bill for 
 
 * Ld Red. 179; Story Eq. Pi. §§ 127, want of partie"s. Dart r. Palmer, 1 Barb. 
 
 129, 213, 214, 228. So, in some ca«e«, Ch. 92. A Court can make no decree in 
 
 when all the parties are not before the an Equity suit, in whicli the interests of a 
 
 Court, the merits, as between those par- persf)n not a p:irly are so invoivetl, that 
 
 ties who are before the Court, may bo complete justice cannot be done between 
 
 decided iit their refju'^st. See Wickliffe v. the parties to the sm't, witboiil affecting 
 
 ('lay, 1 Dunn, 103. If the f 'ourt can make the ritjhts of the person, not a party, whoso 
 
 a iletren, at the hetiring, wliich will do interests are so involved. Sliie'd'< ". Har- 
 
 enlire justice to all the parties, and not row, 17 How. U. S. 130; ante, 2b7, note, 
 prejudice their rights, notwithstanding the
 
 294 
 
 OF TARTIES TO A SUIT. 
 
 On. V. § ;?. 
 
 How parties 
 added. 
 
 Ity tho suit should be settled u)>on the same trus.ts for the benefit 
 of tlie ])l:nutitf's wife and children, his Honor permitted the cuuso 
 to ]M-oeeed witliout the trustees, and ultimately, upon the under- 
 takinsi: of tlu' plaintilf, declared that the plaintilfs were not bound 
 by the release.^ 
 
 As a decree made in the absence of ])ropcr parties may be 
 reversed, and at all events will not bind those who are absent, or 
 tliose claiming un<ler them; ^ great care should be taken to have 
 the necessary parties before the Court at the liearing," because, as 
 we have seen before, he cannot then apply for leave to add parties 
 without the consent of the defendant. 
 
 The most usual way of adding parties is by amendment of the 
 original bill, though sometimes it is done by supplemental bill, or 
 order, and the Court will sutler the i)laintiif to amend his bill ))y 
 adding parties at any time before the hearing, but if the amend- 
 ment is made after the expiration of the time for giving notice for 
 the cross-examination of witnesses, the evidence cannot be read 
 against the new parties.* 
 
 1 Harvev v. Cooke, 4 Riiss. 35 ; and see 
 Walker i\ Jerteries, 1 Hare, 296, and 341, 
 356; StorvEq. PI. §220. 
 
 2 Prac.'ReK. 299; Story Eq. PI. §236; 
 Whiting V. Bunk of U. S. 13 Peters, 14; 
 Springs. Jenkins, 1 Ired.Eq. 128; Shields 
 V. Barrow. 17 How. U. S. 130; Stat. U. S. 
 Feb. 28, 1839, 5 Stats, at Large, 321; 47th 
 Equity Kule of the Supreme Court of the 
 United States. 
 
 3 For cases in which the defect of parties 
 has been remedied by the voluntary ap- 
 pearatice at the hearing, see ante, Joy v. 
 Wirtz, 1 Wash. C C. 517. 
 
 4 Goodwin v. Goodwin, 3 Atk. 370; 
 Pratt V. Barker, 1 Sim. 1. A person in 
 interest, who lins never appeared, or been 
 cited to appear, m;iy, upun motion, and 
 ■without a supplemental bill, at the hearing 
 upon bill, answer, and proof, besumuKjned 
 in and made a party. Miller v. Wliittier, 
 33 Maine, 521. \Vhere new parties are 
 adtled in a case after the testimony is 
 tikon. the cause should be heard on bill 
 and answer as to such new defendants. 
 Smith V Baldwin, 4 Har. & J. 331. 
 
 In respect to amendments as to parties, 
 the Courts are more liberal than as to other 
 amendments. Courts of Equity will not 
 dii^miss bills absolutely, for want of proper 
 partie«, the plaintiff showing enough to 
 give color to his claim for relief against the 
 parties not before the Court. In such case 
 the Court may projierly give the plaintiff 
 leave to amend, and make the pro[)er par- 
 ties. Allen V. Smith. 1 Leigh. 331; Story 
 Eq. PI. § 236; liutcliin=on v. Heed, 1 Hoff". 
 Ch. 316; Havden r. Marmaduke, 19 Mis. 
 (Bennett) 403; Franklin v. Franklin, 2 
 Swnn (Tenn.). 521; Potter v. Holden, 31 
 Conn. 3S5; Thomas v. Admins, 30 111. 37. 
 If the objection of the want of the proper 
 
 parties is taken by plea or demurrer, it is 
 a matter of course to dismiss the plaintiff's 
 bill upon tlie allowance of a plea or demur- 
 rer, unless the plaintiff takes issue on the 
 plea, or obtaiijs leave to amend on the 
 usual terms. Van Epps ». Van Deusen, 4 
 Piiige, 64, 76. If the defendant makes no 
 objection for want of proper parties, either 
 by plea, answer, or demurrer, and raises 
 that objection for the first time at the hear- 
 ing, the bill should not be dismissed, where 
 the defect can be remedied by an iimend- 
 ment or a supplemental bll, proviileil the 
 plaintiff elects to bring the proper patties 
 before the Court witiiin a reasonable 
 time. 76. p 76; Harder y Harder, 2 Simdf. 
 Ch. 17; Peterson v. Poignard, 6 B. Mon. 
 570. The only exception to the rule arises 
 where it appears that the necessar}' parties 
 have been left out of the bill by the fraud 
 or bad faith of the plaintiff. Van Epps v. 
 Van Deusen, supra; see Rowland v. Gar- 
 man, 1 J. J. Marsh. 76 ; Parl)erry v. Goram, 
 3 Bibb, 108; Cabeen v. Gordon, 1 Hill (S. 
 C.), Ch. 53; Hutchinson v. Reed, 1 HofT. 
 Ch. 320; Clifton y. llaig, 4 iJesaus. 331; 
 New Li'ndon Bank v. Lee, 11 Conn. 112; 
 Malin v. Malin, 2 John. Ch. 338; Nash v. 
 Smith, 6 Conn. 422; Rogers v. liogers, 1 
 Hopk. 515; S. C. 1 Paige, 188; S. C. 2 
 Paige. 467; Bland ». Wyatt, 1 Hen. & M. 
 43; Sears v. Towell, 5 .lohn. Cli. 259: 
 Bowen V. Idley, 6 Paige, 46; Fnsworth v. 
 Lambert, 4 John. Ch. 605; Smith v. Tur- 
 rentine, 8 Ired. Eq. 186. 
 
 If the bill is dismissed for want of the 
 proper parties, it should not, where it has 
 equity, be dismissed al)solutely, but iiith- 
 out prejuiJice to the right of the pldntiff in 
 any future litigation. See (Jraig v. Bar- 
 bour, 2 .1. J. Marsh. 220; TlKimpson v. 
 Clay, 3 Monroe, 361; Van Epps v. Van
 
 OF THE JOINDER OF PARTIES. 
 
 295 
 
 An order to amend by adding parties allows of the introduction Ch. V. § 4. 
 of apt words to cliarge them ; but it seems that the plaintiff, if it "■"- — y — '—' 
 is necessary, should apply for liberty to add allegations applicable Form of 
 to the case of the proposed new parties, as this is not included in °' ^^' 
 the Uberty to amend by adding parties ; ^ and under an order 
 giving liberty to add parties by amendment or supplemental bill, 
 a plaintiff may do both.'-^ A plaintiff is not obUged, in adding New parties 
 parties by amendment, to make them defendants ; he may, if he pjahitiffs'^or 
 pleases, apply for leave to make them co-plaintiffs, and he has defendants. , 
 been pennitted to do so by special motion after the defendants 
 have answered the original bill.^ It is to be observed, however, 
 that after answer, the addition of a co-plaintiff is not a matter of 
 course ; and that, in such case, the granting or refusing of an order 
 to amend by adding parties as plaintiffs, is in the discretion of the 
 Court.* 
 
 Section IV. — Of the Joinder of Parties wJio have no Interest in 
 
 the Suit. 
 
 It has been before stated, that no one should be made a party As defend- 
 
 ants; 
 
 to a suit against Avhom, if brought to a hearing, there can be no 
 decree;^ thus, an agent for the purchase of an estate, is not a Agents; 
 
 Deusen, 4 Paige, 76; Miller v. M'Can, 7 
 Paige, 452; Huston v. M'Clartv, 3 Litt. 
 274; Steele v. Lewis, 1 Monroe, 49; Story 
 Eq. PI. § 2.36; West v. Kiindall, 2 .Mason, 
 Itfl; Mechanics' Hnnk of Alexandria v. 
 Setons, 1 Peters, 306; Hunt v. Wickliffe, 
 8 Peters 215; Patrick v. White, 6 1$. 
 Mon.330; (inle, 287, note; Jameson v De- 
 shields, Sfiratian, 4; Kirkpatrick v. Bu- 
 ford, 21 Ark. 268. Put iftlie plaintilVsliows 
 no right to relief against the i)arties hefire 
 the Court, and his hill is dismissed, the 
 Appellate ('ourt will not reverse tlie<U"cree 
 toenulile him to introduce new parties, and 
 therehy m;ike n n<'w case uyton the merits. 
 Jameson r. Deshiclds, 3 Outtan, 4. Under 
 the present Knglish practice, limiting tlie 
 number of parties neces>^ary to a decree, 
 Rule 7 provides, that in the casi-s lulling 
 within the regidation" of the si.x jireceding 
 rules, " the (^ourt, if it shall see lit, nniy 
 require tiny other person or persons to ho 
 made a party or p'trties to the suit, and 
 may, if it shall see fit, give the conduct of 
 tliesuil to such person as it may deem prop- 
 er, and may make sn<'h oriler, in !iny 
 particular case, as it mav ditem just for 
 placing the de''end mt on the ri-conl on Iho 
 Bamo fooing, in regard lo cost-", us other 
 parties liaviutia common interest with him 
 ID the m-ittcrs in question." 
 
 1 Hand. 77; P.dk r. Lord fJlinton. 12 
 Ves. 4K; .Mason i>. Franklin, 1 Y. &(J 239, 
 242; GihsMii r. Ingo, 5 Hare, 150; Hate- 
 man t-. Margeri8oa,0 Ilare, 602; and cases 
 
 referred to, 1 C. P. Coop. t. Cott. 35, SCi 
 37; Parlow v. I\PMurrav, L R. 2 Eq. 420; 
 12 Jur. N. S. 519, V. C. S. When the 
 plaintitf is allowed to amend on account 
 of the want of proper parties, he possesses 
 the incidental right to amend by chsrging 
 all such matters, as constitute the equity 
 of his case, against the new i)arties. Ste- 
 phens V. Frost, 2 Y. & C. 297 ; Story Eq. 
 PI. § 541, and note. If a necessary party 
 be added to a bill, it is to him as an original 
 bill, and he is entitled to the same time to 
 plead, answer, <S:c., as an original defend- 
 ant. Hoxey v. Carey, 12 Geo. 534; Van 
 Leonard v. Stocks, 12 Geo. 546; see Mc- 
 Dougald V. Dougherty, 14 Geo. 674. 
 
 '■^ Minn v. Slant, 15 I3eav. 129; 15 Jur. 
 1095. 
 
 ^ I lichens )'. Congreve, 1 Sim. 500; see 
 Milligan v. Mitchell, 1 U. & C. 433, 442, 
 443; Miller /'. M'Can, 7 Paige, 451. 
 
 ■• Tlio practice rel-iling to the addition 
 of parties by amendment is treated of in 
 the chapter concerning " The Amending 
 of Pills." 
 
 6 DetJollsr. Ward, 3 P. Wms. 311, n. 
 1; Todd V. Sterrelt, 6 .]. J. Marsh. 432; 
 Story Im]. PI. § 231 and notes and cases 
 cited. It is a good ground of demurrer to 
 the whole bill, tlnit a |)erson who has no 
 interest in the suit, and has no e(|uity 
 against the defendant, is imiiroiicrly joined 
 as a parly pbiintilf. Clarkson r. De Pevs- 
 fer, 3 Paige, 336; Little v. Huie, 5 .bnies 
 Eq. (N. G.) 10; King u. Galloway, 6 Jones
 
 206 
 
 OF PARTIES TO A SUIT. 
 
 Cn. V. § 4. 
 
 Biiiiknipts; 
 
 Mi-rc wit- 
 nesses ; 
 
 but members 
 and oliicers of 
 corporations 
 may be made 
 defendants for 
 discover)-. 
 
 necessary party to a 1)11 P against his employer for a specific per- 
 tbrniance, although ho signed the niemorandiuii for the purchase 
 in his own name; ^ and so a residuary legatee need not be made a 
 jxirty to a bill against an executor for a debt or legacy ; and for 
 the same reason in a bill brought by or against the assignees of a 
 bankru])t or insolvent in respect of the property vested in them, 
 under the bankruptcy or insolvency, the bankrupt or insolvent 
 should not be a party ;^ and in a suit to ascertain the ])roperty in 
 a certain share in a banking comj^any, litigated between two 
 claimants, the company is not a necessary party.* Upon the same 
 principle, persons who are mere witnesses, and may be examined 
 as such, ought not to be made defendants;^ even though the 
 object of the bill is to obtain a discovery in aid of an action at 
 Law in which their discovery would be more effectual than their 
 examination.® 
 
 This rule is, however, liable to exceptions ; thus, in cases where, 
 under certain circumstances, a discovery upon oath is desirable 
 fi-om individual members of a corporation aggregate, or from the 
 officers of a corporation, such members or officers may be made 
 defendants.'' With respect to this exception from the general 
 rule, it has been observed by Lord Eldon, that "the principle 
 upon which the rule has been adopted is very singular : it origi- 
 nated with Lord Talbot,^ who reasoned thus upon it : that you can- 
 not have a satisfactory answer from a corporation, therefore, you 
 
 Eq. (N. C.) 128 ; see Wrisrht v. Santa Clara 
 Mining Association of Baltimore, 12 Md. 
 443 ; Westlall r. iScott, 20 Geo. 233. A bill 
 for contributinn by one stockholder of a 
 manufacturing corporation, who has paid 
 debts of the corporation under legal pro- 
 cess, is open to a demurrer, by a defendant 
 who did not ajipear ever to have been a 
 stockholder in the corporation. Heath v. 
 Ellis, 12 Cush. GUI, 604. One defendant 
 cannot object that another defendant, hav- 
 ing no interest in the subject-matter of the 
 suit, is improperly made a piirfy. Cherry 
 V. Monro, 2 Barb. Ch. 618. 
 
 1 Story Eq. I'l. § 231; Boyd v. Vander- 
 kemp, 1 Barb. Ch. 273; Garr v. Bright, 1 
 Barb. Ch. 157; Lyon v. Tevis, 8 Clarke 
 (Iowa), 70; Avers' r. Wright, 8 Ired. Eq. 
 229; see Allin'r. Hall, 1 A. K Marsh. 627; 
 Orkey v. Bend, 3 Kdw. Ch. 482; .Jones v. 
 Hart,"l Hen. & M. 470; Davis v. Simpson, 
 5 Har. & J. 147. If an agent, selling land, 
 binds himself individuMJly, he should be a 
 party to a suit touching the sale. Alexan- 
 der V. Lee, 3 A. K. Marsh 484. 
 
 2 Kingley v. Young, Cooj). Tr. PI. 42. 
 
 3 See ante, Bankrupt Defendants Par- 
 ties. 
 
 * Scawin ?j. Scawin, 1 Y. & C. 68. 
 
 5 Plummer v- May, 1 Ves. 426; How v. 
 Best, 5 Mad. 19; I'o'otman v. I'rav. K. M. 
 Charlt. 291; Story Eq. PI. §§234, 7-34; 
 Etlton V. Hughes, 7 buinner's Ves. 287, 
 
 Perkins's note (a) and cases cited; New- 
 man V. Godfre)', 2 Bro. C. C. (Perkins's 
 ed.) 332; 2 Story Eq. Jur. § 1499; Wig- 
 ram Discovery (Am. ed.), p. 16.5. § 236; 
 Hare, 65, 68, 73, 76; Reeves v. Adams, 2 
 Dev. Ch. 192; Y'ates?;. Monroe, 13 111. 212. 
 
 6 Fetiton V. Hughes, 7 Ves. 288; see next 
 preceding note, and ante, 145, note. 
 
 7 See (inte, Corjioratioiis, 145; Fentonw. 
 Hughes, 7 Sumner's Ves. 287, Perkins's 
 note (<i) and cases cited to thisiioint; mite, 
 145, and note; Kennebec and Portland 
 R.R. Co. V. Portland and Kennebec li.ll. 
 Co, 54 Maine, 184; United States of 
 America v. Wagner, L. Kep. 2 Ch. Ap. 
 582, 5^7, 588. A suit, to restrain the mis- 
 appropriation of a fund held by a corpora- 
 tion in trust, cannot be maintained against 
 the trustees appointed by the corporation 
 to hold and manage the (imd, without mak- 
 ing the corporation a party, 'iibballa v. 
 Bidwell, 1 Gray, 399. To obtain the spe- 
 cilic ijerformaiice of a contract with a cor- 
 poration fiT the sale of reid estate, the 
 trustee who In Ids the legal tide to the 
 corporation lands should be made a co- 
 defendant vvitli the corporation. Morrow 
 V. Lawrence, 7 Wis. 574. 
 
 8 Wych V. Meal, 3 P. Wms. 210; see 
 United States of America v. Wagner, L. 
 K 2 Cli. Ap. 582, 587; S. C. L. K 3 Eq. 
 724; Prioleaur. Ui ited States and Andrew 
 Johnson, L. K. 2 Eq. 659.
 
 OF THE JOINDER OF PARTIES. 297 
 
 make the secretary a party, and get from him the disco veiy you Ch. V. § 4. 
 cannot be sure of having from them ; and it is added, that the '•- y-—' 
 answer of the secretary may enable you to get better information." 
 " The first of these principles," continues his Lordship, " is ex- 
 tremely questionable, if it were now to be considered for the first 
 time ; and as to the latter, it is very singular to make a person a 
 defendant in order to enable yourself to deal better, and with more 
 success, with those whom you have a right to put upon the record ; 
 but this practice has so universally obtained ^\ithout objection, 
 that it must be considered estabUshed." ^ 
 
 Other persons are mentioned by Lord Eldon as affording excep- Agents to 
 tions to the rule before laid down, that mere witnesses cannot be ^g^^ ^^'^'°°" 
 made parties to a suit, viz.^ agents to sell, auctioneers, &c., who 
 have been made defendants without objection;^ his Lordship, 
 however, appears to have thought that the practice of making such 
 persons parties arose originally from their having some interest, 
 such as holding deposits, which might entitle the plaintiff to relief 
 against them ; and it has been since held, that an agent who bids 
 at an auction for an estate, and signs the memorandum in his own 
 name for the purchase, need not be made a co-defendant with his 
 emjdoyer to a bill for the specific performance of such agreement.® 
 In Dammer v. The Corporation of CMjypenliam^^ Lord Eldon also 
 mentions, as cases of excej^tion to the general rule above referred 
 to, those of arbitrators and attorneys. With respect to arbitrators. Arbitrators; 
 however, it is a i-ule, that in general an arbitrator cannot be made 
 a party to a bill for the pur])ose of im2)eaching an award, and that, 
 if lie is, he may demur to the bill, as well to the discovery as to 
 the relief* In some cases, nevertheless, 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.® In such cases. Lord 
 Kedesdale considers it probable that a demurrer to the bill would 
 not have been allowed ; '' and in Lord Lonsdale v. Littledale^ a 
 •leniurrer by an arbitrator to a bill of this nature was in fact over- 
 ruled ; tliough not expressly upon the ground of the improj)nety 
 of making an arbitrator a party, but because the bill charged cer- 
 
 1 7 Vet. 2S9. of discovery, as to all nets done by him be- 
 
 2 ///(V/. ; (Jartland ». Nunn, 6 Enjj. 720. fore his insolvency, and the assignment of 
 Whep^ one of twrt piirtncr-i, after a dissolu- lii.s [iroperty," p. 80. 
 
 lion, eo'ininric'il property to iin aiient for ^ (Joop. Tr. 1*. 42. 
 
 8:ile, tlie proceeds to be applied to the pay- * 14 Ves. 252. 
 
 ineiit of a jiarlnership ileht, in a bill af,'ainst '' Steward t'. K. I. Company, 2 Vern. 
 
 tlie iiKcnt by the other partner, the partner 380; L.l. Hed. 102; Story Ivj. I'l. § 2.'51. 
 
 by whom the I'ormifjnmi'iit Wilt niacic, hav- " Chicot r. Lefjuesne, 2 Yes ?,\h\ I.in- 
 
 if';; l>eeon)e iii^olvenf, lie and his a«si;;nee cood r. (jroiicher, 2 Atk. 3"J5, 050; seo 
 
 were properly made defeiKbints. Bartictt Hamilton »'. Himkin, 3 l)e G. & S. 782; 
 
 r t'ark«. 1 Ciisli. ^2. Wilde J. said that Story En I'l. § 2.!2 and notes. 
 
 the insolvent jiarfner, " if not interested, ' Ld. Ked. 102. 
 
 may well be made a party for the purpose ' Ves. J. 451.
 
 298 
 
 OF PARTIES TO A SUIT. 
 
 Cn. Y. § 4. 
 
 may plead to 
 discover)', 
 
 but must an- 
 swer charges 
 of corruption, 
 
 and may be 
 made to pay 
 costs. 
 
 Attorneys. 
 
 Agents in 
 fraudulent 
 transactions. 
 
 Form of bill. 
 
 t:nn specific acts "svliich showed combination or collusion between 
 him and one of the parties, and made him the agent for such 
 party, and whirh tlie Court therefore thoiight re(iuired an answer.^ 
 But althougli arbitrators may be made ])arties to a bill to set 
 aside their award, they are not bound to answer as to their motives 
 in making the award, and they may plead to that part of the bill 
 in bar of such discovery ; ^ but it is incumbent upon them, if they 
 are charged with corruption and })artiality, to suj)poi-t their ])lea 
 by shoMang themselves incorrupt and impartial, or otherwise the 
 Court will give a remedy against them by making them pay costs.* 
 
 From the preceding cases it may be collected, that arbitrators 
 can only be made j)arties to a suit where it is intended to fix them 
 with the payment of costs in consequence of their corrupt or 
 fraudulent behavior, and in such cases it is apprehended that the 
 bill ought specifically to pray that relief against them. 
 
 The same rule also applies to the other case of exception before 
 alluded to, as having been mentioned by Lord Eldon, namely, that 
 of attorneys; who can only be made parties to a suit in cases 
 where they have so involved themselves in fraud, that a Court of 
 Equity, although it can give no other relief against them, will 
 order them to pay the costs.* Thus, where a solicitoi- assisted his 
 client in obtaining a fraudulent release from another, he was held 
 to be properly made a party, and liable to costs if his principal 
 was not solvent.^ 
 
 The same rule applies to any other person acting in the capacity 
 of agent in a fraudulent transaction, as well as to an attorney or 
 solicitor; ^ and it was said by Sir James Wigram V. C, in Mar- 
 shall V. Sladclon^ that, " as far as his researches had gone, the 
 Court had never made a decree against a mere agent except upon 
 the ground of fraud." 
 
 It is to be observed that, in such cases, if an attorney or agent 
 is made a party, the bill must pray that he may pay the costs, and 
 must distinctly allege the circumstances constituting the fi-aud, 
 and that the defendant was a party concerned, and had a knowl- 
 edge of the fraudulent intention;^ otherwise a demurrer will lie. 
 
 1 2 Storj', Eq. Jur. § 1500, and cases 
 cited. 
 
 2 Anon., 3 Atk. 644. 
 
 8 Linpiood v. Croucher, supra. 
 
 * Story Eq. I'l § 232; Lyon v. Tevis, 8 
 Clarke (Iowa), 99. 
 
 6 Bowles V. Stewart, 1 Sch. & Lef. 227. 
 A solicitor who had intermeddled with a 
 trust was held a proper party. Hardy v. 
 Ciilev, 33 Beav. 36.5. 
 
 6 hulklev V. Dunbar, 1 Anst. 37; Story 
 Eq. PI. § b38; Gartland v. Nunn, 6 Eng. 
 720. But where ajud<;ment debtor seeks 
 relief against thejiulgment, in Equity, the 
 attorneys of the plaintiff in the judgment 
 
 ought not to be made parties, no fraud being 
 charged upon them, or relief sought as to 
 them. Kenan v. Miller, 2 Kelly, 325. In 
 a cape, however, where a person is charged 
 with fraudulently procuring the execution 
 of a will in favor of an infant, such person 
 is a proper party to a bill iileil for tlie pur- 
 pose of setting aside such will, although 
 he has no interest; and he may be liable 
 to costs. Brady v. McCosker, 1 Comst. 
 214. 
 
 7 7 Hare, 428,442; 14 Jur. 106; Reynell 
 V. Sprve, 8 Hare, 222, 271; Innes v. Mitch- 
 ell, 4 brew. 57; 3 .Jur. N. S. 756. 
 
 8 Kelly V. Rogers, 1 Jur. N. S. 514, V.
 
 OF THE JOINDER OF PARTIES . 
 
 299 
 
 In Teo;ier v. The 3Iargravine of Anspach,^ one of the questions 
 before the Court was, whether a married woman could be made a 
 party to a suit on the allegation, that in certain contracts which 
 were the subject of htigation she had acted as the agent of her 
 husband, and that she^iad vouchers in her possession the discovery 
 of which might assist the plaintiff in his case. The bill Avhich did 
 not pray any rehef against the wife, had been demurred to ; and 
 Lord Eldon allowed the demmrer on the ground that she was 
 merely made a defendant for the purpose of discovery, and that 
 no relief was prayed against her. His Lordship said : " I give no 
 judgment as to what would have been the effect if the bill had 
 prayed a delivery to the plaintiff of those vouchers which are 
 charged to be in the hands of the wife ; it is, however, simply as 
 far as relief goes, a bill against the husband only, and against the 
 wife a bill for discovery only. The consequence is that, inde- 
 pendent of her character as wife, the case must be considered as 
 one of those in which the Court does sometimes allow persons to 
 be made parties against whom no reUef is prayed, and the only 
 case of that kind is that of the agent of a corporation." 
 
 With respect to the propriety of making an attorney or agent a 
 party, merely because he has deeds or other documents in his pos- 
 session, Lord Eldon, in Fenxcick v. Beed{ observed that, generally 
 speaking ^w^ primd facie, it is certainly not necessary to make an 
 attorney a party to a bill seeking a discovery and production of 
 title deeds, merely because he has them in his custody ; ^ because 
 the possession of the attorney is the possession of his client ; but 
 cases may arise to render such a proceeding advisable, as if he 
 withl)olds the deeds in his possession, and will not deliver them to 
 his client on his applying for them.* 
 
 Where a person who has no interest in the subject-matter of 
 the suit, and against whom no relief is prayed, is made a party to a 
 suit for the mere puri)Ose of discovery; the proper course for him 
 to a<lopt, if he wishes to avoid the discovery, is to demur.^ If, 
 however, the bill states that the defendant has or claims an inter- 
 est, a demurrer, which admits the bill to be true, will not of coiu'se 
 hold, though the defendant has no interest, and he can then only 
 avoid answering the hill by ))k'a or disclaimer.^ 
 
 Ch. V. § 4. 
 
 Married 
 women. 
 
 Attorneys or 
 agents hav- 
 ing custody 
 of deeds 
 
 ody 
 1, &c.' 
 
 Wlien a de- 
 fendant, not 
 interested, 
 may demur. 
 
 C. W.; Gilbert v. Lewis, 1 De G., J. & S. 
 89. 49, 50; 9 .Itir. N. S. IRT; and see Att- 
 wood V. Sinull, 6 CI. & Fin. 3rj2; Sugd. 
 Law I'roj). <;.'!0, 0.32. 
 
 1 ir, Ves. K-4. 
 
 2 1 Mer. rja. 
 
 8 Wiikcman v. IJailev, 3 Harb. Cli. 4K2. 
 
 < 1 Smith, Ch I'r (2d Am. e<l.) «77. 07H. 
 Whore tlip iiljiiiililV wislien to obtain the 
 custddv of bodks and p:iperH in pofsession 
 of a third person, the proper course is to 
 
 make such third person a party defendant. 
 Morlev »'• Green, 11 I'aige, 240. 
 
 6 Ld. Red. 189. 
 
 8 Ibid ; riummer v. May, 1 Vcs. 426. 
 Where ii suit becomes useless against a 
 pnrticiibir (h'fendant, it is a laMdMl)le course 
 f.)r the j.hiintitV to di-miss the bill aga'ust 
 liim, am! be mnv incur censure if he brings 
 the suit til a lifMrin? without dninR this. 
 Wriglit V. Harlow, 8 Eug. Law & Kq. 125.
 
 300 
 
 OF PARTIES TO A SUIT. 
 
 Ch. V. 54. 
 
 Wliother a 
 lU'lt'iulant 
 who is ii mere 
 witness can 
 proU'ct him- 
 self from 
 discovery 
 bv answer. 
 
 Semble, he 
 cannot. 
 
 Tlio (|uostion whotlior :i party who is a mere witness can by a9V- 
 sir( r protect himself from the discovery required, a])pears to liave 
 given rise to some difference of oi)inion. In CooJcson v. J^IUson^ 
 the plaintiff made a person defendant Avho Avas merely a witness, 
 and might have been examined as such, an of therefore should have 
 demurred to the bill. Instead of demurring, however, the defend- 
 ant ]iut in an answer, which, not having satisfied the j)laintiff as to 
 one interrogatory, an exception was taken, and the Master rejjorted 
 the answer sufficient; but upon the case coming before Lord Thur- 
 low, upon exception to the Master's report, his Lordship held, that 
 as the defendant had submitted to answer, he Avas bound to answer 
 fully. In a subsequent case of Ne^mnan v. Godfrey,'^ however. 
 Lord Kenyon ]M. R, appears to have entertained a different 0})inion. 
 In that case the defendant, who was a mere clerk, was alleged in 
 the bill to be a party interested in the property in litigation, and 
 in support of such allegation various statements were made, show- 
 ing in what manner his interest arose ; he put in an answer deny- 
 ing all the statements upon which the allegation of his being 
 interested was founded, and disclaiming all personal interest in 
 the subject-matter ; and to this answer exceptions were taken by 
 the plaintiff, because the defendant had not answered the subse- 
 quent parts of the bill, which excejitions were disallowed by the 
 Master; and upon the question coming on before Lord Kenyon, 
 upon exceptions to the Master's reports, he thought the Master 
 was right in disallowing the exceptions ; because the defendant 
 had reduced himself to a mere witness, by denying his interest and 
 disclaiming ; so that, even supposing he had an interest, he could 
 not, having disclaimed, have availed himself of it. These contra- 
 dictory decisions have been remarked upon by Lord Eldon in two 
 subsequent cases ; ^ and his Lordship's observations in those cases 
 have been considered, as approving of Lord Thurlow's decisions in 
 CooJcson V. J^llison.* jSTothing, however, can be collected from 
 what Lord Eldon has said in either of these cases, as indicating 
 an opinion either one way or the other; and, at the period when 
 they were before him, the doctrine that a jiarty answering must 
 answer fully does not appear to have been so strictly adhered to 
 as it has has been subsequently ; ^ but that doctrine is now well 
 established, and, it is conceived, includes the case above dis- 
 cussed.® 
 
 1 2 Bro. C. C. 252. 
 
 2 2 Bro. C. C. 332. 
 
 3 Fenton v Hushes, 7 Ves. 288; Baker 
 V. Mellish, 11 Ves. 7.5, 76. 
 
 * 2 Bro C. C. 252. 
 
 6 See Dolder v. Lord Huntinefield, 11 
 Ves. 283; Kaulderw. Stuart, t6. 290; Shaw 
 V. Ching, ib. 3<j3, and post, Answer; see a 
 
 discussion of this subject in Wigram Dis- 
 covery (Am. ed.), PI.' 148, 149, &c. p. 86, 
 87, et'seq. 
 
 8 Lancaster v. Evors, 1 Phil. 349; 8 Jur. 
 133; Swinborne v. Nelson, 16 IJeav. 416; 
 Great Luxemburg Rail A'av Comprmv v. 
 Magnay, 23 Ueav. 640; 4 .lur. N. S. iS39; 
 Keatle v. Woodroffe, 24 Beav. 421.
 
 OF THE JOINDER OF PARTIES. 
 
 301 
 
 When a plaintiff finds that he has made unnecessary parties to 
 his bill, he may either dismiss his bill as against them, or apply to 
 the Court for leave to amend his bill by striking out their names ; 
 in either case, however, the order will, if the defendants have 
 appeared, only be made on payment of their costs ; ^ because, by 
 striking them out as defendants, the plaintiff deprives them of the 
 opportunity of applying for their costs at the hearing.- 
 
 The preceding observations, ^^ith. regard to the joinder in the 
 suit of persons who have no interest, beneficial or otherwise, in 
 the subject-matter, refer to cases where they are made parties de- 
 fendants. The rule, however, that persons who have no interest 
 in the litigation, cannot be joined in a suit with those who have, 
 applies equally to prevent their being joined as co-plaintiffs.'' 
 
 But although persons having no interest in the subject-matter 
 of a suit, cannot, as we have seen, be joined as co-plaintiffs, yet 
 where persons having at the time a joint interest file an original 
 bill, and afterwards one of the co-plaintiffs parts with his interest, 
 such co-plaintiff may afterwards join in a supplemental bill filed 
 for the pui-j^ose of bringing additional matter before the Court ; 
 because, although he may have parted with his interest in the 
 subject-matter, he is still interested in the suit in respect of his 
 liability to costs. Thus, where a bill was filed in the Exchequer 
 by certain persons on behalf of themselves and other members of 
 a Joint-Stock Com])any, to which an answer was put in and a 
 decree made, setting aside certain contracts between the plaintifi's 
 and the defendant, and directing various accounts and inquiries, 
 and afterwards a supplemental bill was filed in the name of the 
 same plaintiffs against the same defendant, seeking amongst other 
 things a lien on a part of the purchase-money, which had been 
 paid to the defendant, to which a plea Avas put in by the defend- 
 ant on the ground that one of the plaintiffs in the supplemental 
 bill had, previously to the filing of it, parted with all his interest 
 in the i»artnership, &c., Lord Lyndhurst C. B. overruled the plea, 
 being of opiii'iDU that the supplemental bill was nothing more 
 than a contiiitiation of the original hill, an<l his L()rdshi})'s decision 
 WHS afterwards confirmed by Lord Abingcr C. B. upon a rehear- 
 
 It is to be observed, that the coiniiiou case of joining :ui auc- 
 tioneer and the vendor in a bill against a purchaser, is no exception 
 
 Ch. V. § 4. 
 
 How plaintiff 
 maj' get rid of 
 unnecessary 
 parties. 
 
 As co-plain- 
 tiffs; 
 
 Joinder as 
 co-plaintiffs 
 of persons 
 either unin- 
 terested or 
 having 
 distinct and 
 several 
 interests, is 
 improper. 
 
 In supple- 
 mental bills 
 
 Auctioneer 
 nnd vendor. 
 
 1 f'ovenhovrn r. Shiiler, 2 Paige, 122; 
 Bee Wright v. IJurlow, 8 luig. Law & Va[. 
 126; .Muiiiiiiig /'. Olducestcr, i'> I'ick. G, 17, 
 18; Dai.n v. Valentine, 5 Met. 12, 13. 
 
 3 Wilkinson r. I'..lsh<>r, 2 Iko. (J. C. 272. 
 
 8 Miiyor and Ahhrnien of Colchester 
 
 V. , 1 1'. VVnis. 595; Troughton 
 
 V. Gettey, 1 Dick. 382; Cuff v. I'lalell, 
 4 Ku8s. 212; Makepeace v. Ilaythorne, 
 
 4 Russ. 244; King of Spain v. Machado, 4 
 Ivuss. 22.'); I'age v. 'I'ownsend, 6 Sim. 3i»5; 
 (jivn r. ,SoareM,3 M. & K. 450, 408; (Jriggs 
 V. iStaplee, 2 I)e li. & S. 572; 13 Jur. 2U; 
 Griflilh I'. Vanhevlhuvsen, 1" Hare. 85; 16 
 Jur. 421; Story Va\. I'l. §§ 3'JO, 509, 544, 
 551; (;iMrk,soii v. l)e I'eystcr, 3 l*aige,336; 
 Clason V. Lawrence, 3 Kd. Ch. 48. 
 4 Small V. Attwood, 1 Y. & C. 39.
 
 302 
 
 or PARTIES TO A SUIT. 
 
 Cii. V. § 4. to tho rule above referred to, becaiise the auctioneer has an inter- 
 est in the contract, and may bring an action upon it; he is also 
 interested in being protected from the legal liability which he has 
 incurred in an action by the purchaser to recover the deposit.^ 
 Nor does the circumstance of the assignor and the assignee of a 
 chose in action being capable of suing together constitute an ex- 
 ception, because, although the assignor has parted with his bene- 
 ficial interest in the subject-matter, he still is interested as the 
 owner of the legal estate." 
 
 If the fact of one of the })laintifrs having no interest in the suit, 
 appears on the bill, advantage must be taken of it by demurrer.^ 
 advantage of. If the fact does not appear upon the bill it may be brought for- 
 ward by plea,'* and where, at the hearing, the claim of one of two 
 co-plaintiffs failed entirely whilst that of the other succeeded, the 
 V. C. of England dismissed the bill as against both plaintiffs, but 
 without prejudice to the right of the one who had succeeded to 
 file a new bill.^ 
 
 Upon a similar principle, in cases where all the plaintiffs have an 
 interest in the subject of the suit, but their interests are distinct 
 
 Misjoinder 
 of plaintitt?, 
 how taken 
 
 1 But in a suit in Equity by a purchaser 
 for relief against a sale at auction, in which 
 the auctioneer used fraud to enhance the 
 price, it was held that it was not necessary 
 to make the auctioneer a party. Veazie v. 
 AVilliams, 8 How. U. S. 134. But if the 
 auctioneer is made a party he cannot de- 
 mur, in such a case, on the ground that he 
 is a mere witness. Schmidt v. Ditericht, 1 
 Edw. Ch. 119. 
 
 2 Rj-an f. Anderson, 3 Mad. 174; see 
 Story Eq. PI. § 153 and notes; ante, 198, 
 et seq., and notes. 
 
 3 Cuff V. Platell, 4 Russ. 242; King of 
 Spain V. Machado, 4 Kuss. 225; Page v. 
 Townsend, 5 Sim. 395 ; Delondre v. Shaw, 
 2 Sim. 237; Story Eq. PI. §§ 641-644; 
 Bowie V. Minter, 2 Ala. (N. S.) 406; Tal- 
 mage/;. Pell, 9"Paige, 410; Gossett «;. Kent, 
 19 Ark. 002. 
 
 * JIakepeace v. Haj'thorne, 4 Russ. 244; 
 Doyle r. Muntz, 6 Hare, 609; lOJur. 914. 
 In Watertowii v. Cowen, 4 Paige, 510, it 
 wa.s held too late to take a mere formal ob- 
 jection of this kind for the first time at the 
 hearino;. Sl-c, Dickinson v. Davis, 2 Leigh, 
 401 ; Sheppard v. Starke, 3 Munf. 29 ; Mayo 
 V. Murchie, ib. 358; Story Eq. PI. §§ 232, 
 236,509, 544; Harder?;. Harder, 2 Sandf. 
 Ch. 17; Bowman v. Burnle}-, 2 McLean, 
 376; Story v. Livingston, 13 Peters, 359; 
 Bowie V. Minter, 2 Ala. 406; Schwoerer v. 
 Boylston Market Association, 99 Mass. 295, 
 207. If the misjoinder is of parties plain- 
 tiffs, all the defendants may demur; such a 
 misjoinder is a proper ground of objection. 
 Cammeyer v. United German Lutheran 
 Churches, 2 Sandf Ch. 180. If the mis- 
 joinder is of parties as defendants, those 
 only can demur who are improperly joined. 
 
 Toulmin v. Hamilton, 7 Ala. 362. But if 
 a person is improperly joined as a defend- 
 ant, who is without the jurisdiction, and is 
 therefore a party only b}' virtue of the usual 
 prayer of process, such misjoinder will not 
 affect the cause; for until he has appeared 
 and acted, no decree can be had against 
 him. And in cases of misjoimler nf plain- 
 tiffs, the objection ought to be taken by 
 demurrer; for if not so taken, and the Court 
 proceeds to a hearing on the merits, it will 
 be disregarded, at least if it does not mate- 
 rially affect the propriety of the decree. 
 Story Eq. PI. § 544, and notes. 
 
 5 Cowley V. Cowley, 9 Sim. 229; Pad- 
 wick V. Piatt, 11 Beav. 603; Pulham v. 
 M'Carthy, 1 H. L. Ca. 703; see also Hlair 
 V. Bromley, 5 Hare, 542, 563; Moore v. 
 Moore, 17 Ala. 631. It seems, however 
 that in general an objection of this kind, 
 if not raised upon the pleadings, will not 
 be allowed at the hearing. Eades v. Harris, 
 2 Y. & C. 230; Kaffety v. King, 1 Keen, 
 601; Cashell v. Kelly, 2 Dr. & W. 181; 
 Louis V. Meek, 2 Greene (Iowa), 65; Mur- 
 ray V. Hay, 1 Barb. Ch. 59. But the Court ' 
 may in its discretion, and under circum- 
 stances, in such a case, dismiss the bill as 
 to all the plaintiffs, or only as to those who 
 are improperly joined. Myers v. Farring- 
 ton, 18 Ohio, 72. Where a person is made 
 a co-plaintiff improperly, without his priv- 
 ity or consent, the proper motion is that 
 his name be stricken out, not that the bill 
 be dismissed even as to him. So. Life Ins. 
 & Trust Co. V. Lanier, 5 Florida, 110. It 
 .seems the objection of misjoinder of plain- 
 tiffs cannot be taken in a rehearing. Fow- 
 ler V. Revnal, 3 M'N. & G. 500, 511; 15 
 Jur. 1019", 1021.
 
 OF THE JOINDER OF PARTIES. 
 
 303 
 
 Present 
 practice. 
 
 Statutory- 
 provision 
 that suit is 
 not now to be 
 dismissed for 
 misjoinder 
 of plaintiffs, 
 
 and several, they will not be allowed to sue together as co-plain- Ch. V. § 4. 
 tiffs ; ^ thus, in Hudson v. JSIaddison^ where a bill was filed by five 
 several occupiers of houses in a town, to restrain the erection of a 
 steam-engine, alleging that it would be a nuisance to each of them, 
 the V. C. of England dissolved an injunction obtained in the suit, 
 upon the ground that each occupier had a distinct right of suit, 
 and therefore that they could not sue as co-plaintiffs.^ 
 
 Now, however, the consequences of a misjoinder are by no 
 means so serious as they were formerly ; for, by the Chancery 
 Amendment Act of 1852, it has been provided that " no suit in 
 the said Court shall be dismissed by reason only of the misjoinder 
 of persons as plaintifts therein, but whenever it shall appear to the 
 Court that, notwithstanding the conflict of interests in the co- 
 plaintiffs, or the want of interest in some of the plaintiffs, or the 
 existence of some ground of defence affecting some or one of the 
 plaintiffs, the plaintiffs, or some or one of them, are or is entitled 
 to relief, the Court shall have power to grant such relief, and to 
 modify its decree, according to the special circimistances of the 
 case, and for that purpose to direct such amendments, if any, as 
 may be necessary, and at the hearing, before such amendments 
 are made, to treat any one or more of the ])laintiffs, as if he or they 
 was or were a defendant or defendants in the suit, and the remain- 
 ing or other jjlaintiff or plaintiffs was or were the only plaintiff or 
 plaintiffs on the record ; and where there is misjoinder of plaintiffs, 
 and the plaintiff having an interest shall have died, leaving a 
 plaintiff on the record without an interest, the Court may, at the 
 bearing of the cause, order the cause to stand revived as may 
 appear just, and proceed to the decision of the cause, if it shall see 
 fit, and give such directions, as to costs or otherwise, as may 
 appear just and expedient."* 
 
 The provision of the Act is imperative, and does not leave it to is imperative, 
 the discretion of the Court whether to dismiss the bill or not."^ 
 
 1 Hudson ». Maddison, 12 Sim. 416; 5 
 Jur. 11!*4; and see I'owell «. Cockerell, 4 
 Hare, 5.07, 'M'l : 10 Jur. 24.3, where the ob- 
 jection was disallowed ; und Miles v. Uurn- 
 ford, 2 Sim. N. S. 234; 21 L. .J. (Jii. 6(57, 
 L. .I.J.; wiiere the p'ainliiTfilleil two char- 
 acters, in t)iie of which he coidd not sue. 
 For a cHse .^ince l/> & 16 \'ic. c. ^0, see 
 BeecliinK «. I/lovd,.'J l)rew.227. See Merrill 
 ». Lake, 16()tii.r,y7.'i; Ohio )\ Kllis, 10 Ohio, 
 450; I'ovne.s t;. ( 'rea^li, 2 Irish l^i. I'JO; 
 Beaty «. ■\w\\\ 1 I)ana, 10;j; liovd i'. Ilovt, 
 6 I'aijfC, 65; "Stnry K(). IM. §§ 279, 530. 631 ; 
 Yeaton ». Lenox, 8 I'eters, 123; Harri-ion 
 f. II<>f,'K, 2 Vesev J. 323, 32H; I'.ririkerliolT 
 r. I'.ruwn,''. .John Ch. 130, 150-l-,3; Clark- 
 Kon r. De I'eyster, 3 I'aifje, 320; Lentiihon 
 ». Moffat, 1 Kdw. Ch. 451; ILillett v. Hal- 
 lett, 2 I'nixe, 15; Knhcrt f. Woods, 3 Pai^e, 
 617; Vim Cieef v. Sickle.s, 5 I'aige, 505; 
 
 Baily v. Bruton, 8 Wendell, 339; Kny «. 
 Jones, 7 J. J. Marsii. 37; Bnrlingame 
 V. llobbs, 12 Gray, 3G7, 372; Kmans V. 
 Emans, 2 Beaslcy (N. J.), 205. 
 
 2 12 Sim. 416. 
 
 8 IJut it has been held that two or more 
 persons, liavinj; separate and distiii<-t tene- 
 ments which are injured or lendered unin- 
 hiihitahle by a coninmn nui.-ance, or wliicli 
 are rendered less valuable by a private 
 nuisance, which \% aconnnnn injur}' to the 
 tenements of both, m;iy join in a suit to 
 restrain such nuisance. MinTiiy v. Hay, 1 
 Harb. (^h. 50; I'utnam r. Sweet, 1 (^'h:ind. 
 (Wi.s.)2H(3. The ('"lilt exercises a sound 
 rliscretioM, witli<iiil adlieiing to an inflexible 
 rule, in determininii whether there has been 
 a misjoinder o(i)arties in lujuity. 
 
 * 15 & l(j Vic. c. 1^6, § 40. 
 
 6 Clements v. Bowes, 1 Drew. 084;- see
 
 304 OF PARTIES TO A SUIT. 
 
 Cii.Y. §4. The Act npiilii's to tlio case Avliere a ])lainliir sues on bclialf of 
 '— y ■ ■— • luiuself and tlie others of a chiss;^ thus, where a hill was filed ])y 
 Act applies to onc member of :i company on behalf of himself and all others, 
 class suits. except the defendants, praying an account of the receipts and 
 payments of the defendants on behalf of the company, and pay- 
 ment of what should be found due to the i)lainti1f, and it aj)peared 
 that there were circumstances which made the interest of some of 
 the persons purporting to be represented by the plaintiff different 
 from liis, it was held, that the Court could, under the above- 
 mentioned section, treat the absent plaintiffs as defendants, and 
 determine whether a decree should be made ; and, accordingly, 
 the Court decreed an account giving liberty to some of the share- 
 holders whose interest differed from the plaintiff's to attend the 
 proceedings in chambers.^ 
 
 It has been held, that a misjoinder of plaintiffs is now no olyec- 
 tion to a motion for an injunction and receiver, to protect property 
 in danger of being lost pending litigation.^ 
 
 also, for cases of misjoinder since the Act, see Williams v. Page, 24 Beav. C69; 4 Jur. 
 
 Carter v. Sanders, 2 Drew. 248; Upton v. N. S. 102; Evans v. Coventrj', 5 De G., M. 
 
 Vanner, 10 W. K. 99, V. C. K.; Burdick & G. 911; 2 Jur. N. S. 557; see also Stu- 
 
 V. Garrick, L. li. 5 Ch. Ap. 233. in Bar- f)art v. Arrowsmith, 3 Sm. & G. 176; 
 
 ton V. Barton, 3 K. & J. 512; 3 Jur. N. S. Williams v. Salmond, 2 K. & J. 403; 2 
 
 808, the bill was not dismissed for mis- Jur. N. S. 251; Gwatkin v. Campbell, 1 
 
 joinder, but for want of interest in the Jur. N. S. 131, V. C. W. 
 
 plaintiffs; and the marginal note in 3 K. 2 Clements v. Bowes, 1 Drew. 634. 
 
 & J. 512 appears to be incorrect in this ^ Evans v. Coventry, 5 De G., M. & G. 
 
 respect. 911; 2 Jur. N. S. 557. 
 1 Clements v. Bowes, 1 Drew. 634; and
 
 CHAPTER VI. 
 
 THE BILL. 
 
 Section I. — The different sorts of Bills. 
 
 It has been before observed, that a suit on the Equity side of ordinary 
 the Court of Chancery is generally commenced, on behalf of a mode of com- 
 subject, by preferring what is termed a bill ; ^ and that if com- "^"""^ 
 menced by the Attoraey-General on behalf of the Crown, or of 
 those partaking of its prerogatives, or under its protection, the 
 suit is instituted by information.^ The form of this bill and in- 
 formation is now regulated by statute and by the orders of the 
 Court, but the mode of commencing proceedings in Chancery has 
 been by bill since the earliest times.^ 
 
 Bills, if they relate to matters which have not previously been original bills, 
 brought before the consideration of the Court, are called original 
 bills, and form the foundation of most of the proceedings before, 
 what is termed, the extraordinary or equitable jurisdiction of the 
 Court of Chancery.* The same form of instituting a suit is also in 
 use in all other equitable jurisdictions in the kingdom except the 
 county courts. 
 
 Besides original bills, there are other bills in use in Coyrts of -gji^^ ^^^ 
 E<juity, whicli were formerly always, and are still sometimes, nee- original. 
 essuiy to ]>e jireferred, for the purpose of supjdying any defects 
 which may exist in llie form of tlie original bill, or may have been 
 j)ro<luced by events subsecpient to the filing of it. Bills of this jjjn^ j^^ jj^^ 
 description are called bills which are not original. Sometimes a nature of 
 
 original bills. 
 
 1 Storj' r>|. I'l. § 7. In Massachusetts, is prayed for. The prayer for rchef gives 
 
 cases in" K(|uity may he commenced by jurisiliction of the action, and tiierefore 
 
 bill or petition with a writ of »iibp(L'na, ac- no allidavit for tiiat purpose is necessary, 
 
 cording to the usual course of |)roceedings Its cliarader is that of a suit in J'.quity. 
 
 in Knuity, or inserted in an origiuid writ Stockhridge Iron Company v. Cone Iron 
 
 of sumnfoiis, or of summons and attacii- Works, 'J'J Mass. 40H; see Irvin r. (iregory, 
 
 ment, or by a declaration in an action of 13 (iray, 2Vt\ Stiit. Miiss. IhG.j, c. 17y, §U. 
 
 contract or tort, iis the case may be, &c. IJy Statute in iMiiiiie a hill in Etiuity may 
 
 If a discovery is sought, it may be by be inserted in a writ to be .'•erved as other 
 
 such hill or pi-l it i n, or by being made part writs. Stephenson v. Davis, 66 Maine, 73, 
 
 of sucli declaration, or h}' interrogatories. 70. 
 
 Geiil. Sti. c. 113, §§ 3, 4. See Uelknap i). - Aula, p. 2; Story Eq. I'l. § 8. 
 
 Stone, 1 Allen, 'rri. The jurisdiction of » l,d. i;. <l. .S. 
 
 the Supreme .ludicial Court is exclusive ■• Story Eq. I'l. §§ 10,22. 
 over all actions in which relief in Equity 
 
 VOL. I. 20
 
 306 
 
 THE BILL. 
 
 Cii. VI. §2. person, not a party to the orininal suit, scolcs to bring the pro- 
 
 " Y — ■ — '■ (.'oediiigs and decree in tlie ori!j,iiinl suit bcl'orc the Court, ibr the 
 
 ])urpose either of obtaining the benefit of it, or of 2)roeuring the 
 revoisid of the decision wliich lias been made in it. Tlie bill 
 ■which lie prefers for this jiurjjose is styled a bill in the nature of 
 an original bill.^ 
 
 Besides the different divisions of the bills liero enumerated, 
 original bills are usually divided into: 1. Original bills ])raying 
 relief; and '2. Original bills not praying relief.^ 
 
 Original bills praying relief are again subdivided into three 
 heads : 1. Original bills, praying the decree of the Court touching 
 some right claimed by the person exhibiting the bill, in oi»])osition 
 to rights claimed by the person against Avhom the bill is exhibited ; 
 2. Bills of interpleader; and, 3. Certiorari bills.'' Original bills 
 not praying relief, are of two kinds: 1. Bills to peipetuate the 
 testimony of witnesses; and, 2. Bills of discovery.'' The simplic- 
 ity of modern proceedings, however, renders the foregoing sub- 
 division of bills in Chancery comparatively unimportant. 
 
 As original bills of the first kind, are those most usually exhib- 
 ited, the reader's attention Avill, in the present chapter, be jtrin- 
 cipally directed to them. The other descri])tions of bills will be 
 more particularly considered, when we come to treat of the practice 
 of the Court applicable to the particular suits of which they are 
 the foundation. Bills wdiich are not original, or which are merely 
 in the nature of original bills, will be separately considered in a 
 future part of the work ; but it may be here observed, that simple 
 and economical modes of supplying the defects of original bills 
 have been provided, which will be stated in the proper place,^ and 
 which have rendered bills which are not original of rare occurrence. 
 
 Division of 
 oriiiinal bills 
 
 Praying 
 relief. 
 
 Praying no 
 relief. 
 
 Course 
 proposed 
 
 Section II. — The Authority to file the Bill. 
 
 Authority 
 need not be in 
 writing ; 
 
 The first stej) to be taken by a party who proposes to institute 
 a suit in Chancery, unless he intends to conduct the suit in person, 
 is to authorize a solicitor practising in the. Court to commence and 
 conduct it on his behalf. It does not seem to be necessary that 
 such authority should be in writing," although it would, perhaps, 
 
 1 Storv Eq. PI. §§ 16, 20, 21. 
 
 2 Ld. Red. 34, 37, 51; Story Eq. PL 
 §§ 17-19. 
 
 3 Ld. Red. 34, 37, 48, 50. 
 
 4 Ld. Red. 51, 53, 54. 
 
 5 Post, chap. XXXIII.; and see 15 & 16 
 Vic. c. 86, §§ 52, 53 
 
 6 Lord V. Kellett, 2 M. & K. 1. As to 
 revocation of the authority, see Freeman 
 
 V. Fairlie, 8 L. J. Ch. 44, V. C. E. For the 
 authority required in the case of a bill by a 
 public company, see East Pant Alining 
 Company v. Mcrrv weather, 10 Jur. N. S. 
 1231; 13" W. R. 216, V. C. W.; 2 H. & M. 
 2-04; Exeter & Cre'liton Railw.ij' Co. v. 
 Buller, 5 Hailwiiy Co. 211. For form.s of 
 authority to sue or defend, see Vol. III.
 
 AUTHORITY TO FILE THE BILL. 
 
 307 
 
 be better that a solicitor, before he commences a suit, should be 
 in possession of some written authority for that inirjiose ; as if he 
 is not, the onus of the proof of the authority will be cast on him.^ 
 In order to warrant a solicitor in filing a bill, the authority, be it 
 iu writing or by /)a/-o/, ought to be special; and it has been held 
 that a general authority to act as solicitor for a party, Avill not be 
 sufficient to wan-ant his commencing a suit on his behalf:- al- 
 though, under a general authority, a solicitor may defend a suit 
 for his client.^ 
 
 The rule which requires a solicitor to be specially authorized to 
 commence a suit on behalf of his client, applies as well to cases 
 where the party sues as a co-plaintiflf,* as to cases where he sues 
 alone ; and even to cases where his name is merely made use of 
 pro forma. In Wilson v. Wilson,^ Lord Eldon said, "I cannot 
 agree that making a person a plaintiff is only^^ro forma, and I 
 am disposed to go a great way in such cases : Tor it is too much 
 for solicitors to take upon themselves to make persons parties to 
 suits without a clear authority; there are very great mischiefs 
 arising fi-om it." Xow, as we have already seen, before the name 
 of any person is used in any suit as next friend of any infant, 
 married woman, or other party, or as relator in any information, 
 sucli person must sign a written authority to the solicitor for that 
 purpose, and such authority must be filed with the bill or in- 
 formation,® 
 
 If a solicitor files a bill in the name of a person without having 
 a proper authority for so doing, the course for such person to pur- 
 sue, if he wishes to get rid of the suit, and is the sole i)lauitiff, is 
 to move that the bill may be taken off tlic file,'' or dismissed^ with 
 costs, to be i)aid by the plaintiff; and that the solicitor who filed 
 tlie bill without autliority may be ordered to pay to the defendants 
 
 Ch. VI. § 2. 
 
 but must be 
 special, 
 
 and from all 
 the plaintiffs. 
 
 "Written au- 
 thority to use 
 name, as next 
 friend or rela- 
 tor, must be 
 filed with the 
 bill or infor- 
 mation. 
 
 Bill filed 
 witliout au- 
 thority, how- 
 repudiated by 
 plaintiff: 
 
 Motion by 
 sole plaintiff; 
 
 1 I'innerj;. Knights, 6 Beav. 174; Hood 
 V. I'liillip-", ilj. I'tj; Maries r. Maries, 23 L. 
 J. Ch. 154. V. C. VV. 
 
 2 Wilnnn f. Wilson, 1 J. & W. 457; see 
 also I)und:is v. Dutens, 1 V'es. J. lUG, 200; 
 2 Cox, 235, 241; liligh v. Tredf;ett, 5 De 
 G. & S. 74; 15 .Jur. 1101; liowley v. Sey- 
 mour, 14 Jur. 213, V. C. K.; Re .Maiiby, 3 
 .Jur. N. iS. 25t»; S. C. no;/i. Norton i-. Coop- 
 er, 3 Sm. & G. 375; and see .Solley v. 
 Wood, 10 IJeav. 370, where it was held 
 tli;it nn authority given to a cnuntry so- 
 licitiir iff sullicient to warrant his town 
 a^ent in filing a bill. 
 
 » Wri>;ht v. Castle, 3 Mer. 12; 1 Smith, 
 Ch. I'r. (2d Am. ed ) 100, 107. 
 
 * Where a suit is commenced in the 
 names of scviTai per-ons li}' their solicitor, 
 the C"urt will not in(|uire whether such 
 suit WHS autliori/.ed by all, unh'ss some of 
 them ohji'Ct to the (irociMMlings, or the ad- 
 verse party showi allirmatively that the 
 suit is comniunced and carried on in the 
 
 names of some of the parties without au- 
 thority. Bank Commissioners v. Bank of 
 Buffalo. 6 Paige, 497. 
 1 J. & W. 458. 
 
 6 15 & 16 Vic. c. 86, § 11, ante, pp. 13, 
 69, 110. In a pressing case, an informa- 
 tion was a Ixwed to be filed without the 
 authority, on the uniiertaking ot' the so- 
 licitor to file it the ne.xt day. Attorney- 
 General r. .Murray, 13 W. K. 05, V. C. K. 
 As to the liability I'f a person whose name 
 is u-ed as ne.xt friend wiiliout authoril}-, 
 •whether originally or in the place of one 
 deceased, see Bligh v. Tredgett, 5 De G. & 
 S. 74; 15 .lur. 1101; Ward v. Ward, 6 
 Beav. 251. 
 
 7 .Jerdein v. Bright, 10 W. R. 380, V. C. 
 W.; Palmer v. Walesby, L. R. 3 Ch. Ap. 
 732. 
 
 » Wright V. Castle, 3 Mer. 12; Allin i'. 
 Bone, 4 I5cav. 493; Crosslev i'. Crowtlier, 
 9 Hare, 3.''4; Atkinson r. Abbot, 3 Drew. 
 251.
 
 308 
 
 THE BILL. 
 
 Cn VI 5 -2 
 
 by i'o-i>l;iia- 
 tftts. 
 
 JIust he sup- 
 ported by 
 plaiiitirt"'s 
 artidavit. 
 
 Notice of the 
 motion: to 
 whom given. 
 
 Motion 
 should he 
 made as soon 
 as possible. 
 
 tlioir cdsts of the suit, or to i'0]iay such costs to the jtlnintifTin case 
 he ]>:iys tlieiii; and may he also ()V(U're(l to pay tlie ]>l,iiiititr''s costs 
 of the ajiplieatioii, and his incidental expenses, as between solicitor 
 and client.^ The same course should be pursued where there are 
 several jtlaintitls, and all repudiate the suit. But where one or 
 more of several plaintiifs desire to withdraw from the suit, they 
 should move that their names may be struck out of the bill, and 
 that the solicitor who has unauthorizedly used their names may 
 be ordered to pay their costs of the suit, and the costs of the 
 a2>])lication.'^ 
 
 The motion in either case must be supjiorted by an affidavit of 
 the respective apj)licants themselves, that the bill has been filed 
 without any authority from them.^ To avoid the effect of such 
 an ap})lication, the solicitor against whom it is made must show 
 distinctly, uj)on affidavit, that he had a special authority from the 
 party moving to institute the suit ; and it will not be sufficient to 
 assert generally, in opi)osition to the plaintiff's affidavit, that 
 authority had been given. In Wright v. Castle,* the affidavit of 
 the plaintiff was met by another on the j^art of the solicitor, stating 
 that an action had been brought by the defendant against the 
 plaintiff, on certain promissory notes : to restrain proceedings in 
 which action the bill had been filed, although not by the express 
 directions of the plaintiff, yet in the course of business, and by 
 virtue of a general authority, as the plaintiff's solicitor ; but Lord 
 Eldon did not consider such authority sufficient. 
 
 Notice of the intended motion must be given to the solicitor 
 who filed the bill ; and where one or more, but not all, the plain- 
 tiffs move, notice must also be served on the co-plaintiffs, and on 
 the defendants, whose costs of ajipearance are usually ordered to 
 be paid by the solicitor, if the motion succeeds.^ Where the sole 
 plaintifi' applies, service on the defendants is unnecessary, at least 
 before decree ; and in a recent case their costs of appearing, where 
 improperly served, had to be borne by the plaintiff personally.*^ 
 
 The motion should be made as soon as possible after the plain- 
 tiff has become acquainted with the fact of the suit having Ijeen 
 instituted in his name: for although, as between him and the 
 solicitor, the mere fact of the plaintiff having neglected to move that 
 
 1 Wright V. Ca-tle, 3 Mer. 12; Pnlmer 
 V. Walesby, L. K. 3 (Jli. Ap. 732 ; and 'ee 
 tlie order in Allt-n v. Bone. Seton, 852, No. 
 1; ISmiihCh. Pr. (2d Am. ed.) 107. For 
 form of iiotice of motion, see Vol. III. 
 
 ■■^ Tabbernor v. Tabbernor, 2 Keen, ()79. 
 For the nnb-r in tiiat ca-e, see .Setmi, fe.53, 
 No. 2; and see Wilson v. Wilson, 1 J. & 
 \V. 4.07; Pinner 1'. Knights, 6 lieav. 174; 
 Hood V. Phillips, ih. 17t5 ; see uho Malins 
 V. Ureenway, 10 Beav. 504 ; 12 Jur. GG, 
 
 319, where a solicitor was ordered to pay 
 the costs of unautliorized proceedinfis in 
 the Master's otlice, on behalf of creditors. 
 For form of notice of motion, see Vol. III. 
 
 3 For form of affidavit, see Vol. III. 
 
 4 3 Mer. 12. 
 
 5 Talibernor v. Tabbernor, 2 Keen, 679; 
 Seton, 8.5.3; Hood v Phillips, 6 Beav. 176: 
 Pinner v. Knigiits, ib. 174. 
 
 6 Jerdein v. Bright, 10 \V. li. 380, V.C. 
 W.
 
 AUTHORITY TO FILE THE BILL. 
 
 309 
 
 his name should be struck out from the record will not exonerate Ch. ^a. § 2. 
 
 the solicitor ; ^ yet, as between the plaintiff and the other parties, "^ > ' 
 
 the Court, if there has been delay on his part in making such 
 
 application, will not generally dismiss the bill, but will so frame 
 
 the order as not to prejudice any of the parties to the cause.^ The 
 
 last observation applies more especially to cases where the person 
 
 whose name has been used without due authority, is co-plaintiff 
 
 witli others : for it can scarcely happen, where he is sole plaintiff, 
 
 that defendants should liave an interest in resisting an application 
 
 to dismiss the bill with costs (except indeed after decree) ; but 
 
 where he is co-plaintiff, it freqixently happens that dismissing the 
 
 bill Avould interfere with the interest of the other plaintiffs, or 
 
 diminish the security of the defendants for costs : in such cases, 
 
 the motion will usually be saved to the hearing, and then the 
 
 sohcitor will be ordered to pay all the costs and expenses of the 
 
 party whose name has been used without authority.^ And further 
 
 than that, the solicitor was, in the case of Dundas v. Dutois,* 
 
 ordered to pay to the defendants the difference between taxed 
 
 costs and their costs and expenses. 
 
 Where a co-plaintiff was not apprised that his name had been where plain- 
 made use of without his authority till after the bill had been dis- J.oVjr?after 
 missed with costs, and he was served with a subpoena to pay them, decision. 
 Lord Elffon, upon motion, ordered the solicitor to pay to the 
 defendant the costs, which had been ordered to be paid by the 
 ]ilaintiffs to the defendant; and also to pay to the plaintiff who 
 made the application his costs of the application, as betAveen so- 
 licitor and client.^ By the order made upon that occasion, the 
 S(jlicitor was ordered to pay the whole costs to be paid by all the 
 plaintiffs to the defendants; but he was to be at liberty to make 
 aiiv a]i])lication as to those costs, as against the other ]ilaintiffs, 
 as lie should be advised.® 
 
 As connected with this subject, it may be noticed here, that in when prcvi- 
 certain cases it is necessary, before a suit is commenced, to obtain ^"f.,^f/rrnec 
 the sanction of the Court to its institution. The cases in which essary; 
 tills is most usually done, are those in which the suit contemjilated 
 
 1 Hall r. Laver, 1 Hare, 571 ; '> Jiir 241 ; friend, hiis ajiplied to be relieved from or- 
 pce iil'^o HiivK"; ''• Hriitten, 2 Hare, .3".'5; 7 ders for i);iyni<'nl l)y tlicni of nxniey or 
 Jur. OhK, :is to the lieti of a solicitor upon costs, witiioiit tlu-ir knowledge of the suit, 
 a fund recovered in the cause. He il.)0(i r. I'hilli|i>, Heav. 176; W'ardu. 
 
 2 liferton r. Osli.rnf, 1 Dick. 350; and Ward, ih. 2.')I ; |{lit;ii r. I iedt;ett, 5 Ue G. 
 Bee Turhtick v. Turlnuk, 6 Heav. 134; &.S. 74; 15 Jur. 1101; /(!c. .Man by, 3 Jur. 
 I'inner r. Knictits. ih. 174; Hood v. Pbd- N. S. 25'.); S. (J. num. Norton v. Cooper, 3 
 lilis. ih. 17»i; IJIlL'b »'. Tredgett, 5 He G. & Sin. & G. 375. In Hall r. lWnnett,2 .S. & 
 S. 74; 15 .lur. 1101. S. 78, where the Idll had been dismissed 
 
 '' See Hundis r. Dutens, 2 Cox, 2.')5, with costs for want of proscculion, tho 
 
 241; 1 Ves J. lOU. plaintitrs solicitor was onh-rcl to pay the 
 
 * 1 Ves. J. 200, defendant's costs: tin- plaintilV hiivmtr nh- 
 
 6 WiKle r. Sianlev, 1 J. & W. 674. Pconded before suit, and never authorized 
 
 « S. C. I'.PK. Lib." H. IfilB, fo. Ifi35. For or sanctioned it. 
 other cases where a pluintifT, or a next
 
 310 
 
 THE BILL. 
 
 Vn VI 
 
 wliorc asi^cts 
 in course of 
 adininistni- 
 tiou in Court; 
 
 where 
 
 receiver 
 
 appointed. 
 
 In case of 
 infants. 
 
 is tor tlio bonofit of ;ui estate which is ahvady the subject of a 
 jiroceediiij^ in Court, and tl»e expenses of wliieh are to be paid out 
 c)f such estate. Thus, wliere there is a suit pendiniif for the admin- 
 istration of assets, and it becomes necessary, in order to get in 
 the estate, that a suit sliouhl be instituted against a debtor to the 
 estate, it is usual for tlie ])ersoiial rejiresentative, previously to 
 filing a bill, to a]>ply, in the administration suit, for the leave of 
 the Court to exhibit a bill for that i)urpose. And so Avhere a suit 
 has been instituted for winding up partnership accounts u])on a 
 dissolution, and a receiver has been appointed to collect the out- 
 standing effects : if it is necessary, in order to recover a debt duo 
 to the partnership, that the receiver should nistitute a suit for 
 that purpose, application should be made to the Court, on the j)art 
 of some of the parties, that the receiver may be at liberty to 
 file the necessary bill in the names of the partners. It is to be 
 observed that, in all such cases, the Court would not formerly di- 
 rect the institution of such a suit upon motion, although sup])ort- 
 ed by afiidavits, without previously referring it to the Master to 
 inquire whether it would be for the benefit of the parties at whose 
 joint expense it was to be: unless the other parties interested, 
 being of age, and competent to consent, chose to Avaive such refer- 
 ence.^ Now, however, the proper mode of application for orders 
 of this description is by summons at Chambers,*^ supported by 
 affidavit or other evidence of the facts from which the Judge can 
 determine whether the proposed suit is proper to be instituted ; 
 and the opinion of an Equity barrister, in actual practice, is usually 
 required, that there is a good ground of suit. 
 
 In the same manner, where the j)roperty of an infant is the 
 subject of a suit already dei)ending, and it becomes necessary tliat 
 another suit should be instituted on behalf of the infant, it is 
 usual, before any steps are taken in it, to obtain in Chambers, on 
 summons,^ an order sanctioning such contemplated proceedings 
 as being for the benefit of the infant.^ It is to be observed, how- 
 evei-, that such order can only be made where the projierty of the 
 infant is already subject to the control and disposition of the 
 Court in another suit; and that in ordinary cases, where a person 
 commences an original proceeding on behalf of an infant as his 
 next friend, he is considered as taking upon himself the whole 
 responsibility of it ; nor will the Court, either before or after the 
 •commencement of the proceeding, direct an inquiry whether it 
 will be for the infant's benefit, at the instance of the next friend 
 himself (unless in cases where there are two or more suits brought 
 by different next friends for the same object) : although, as we 
 
 1 Muscrave v. Medex, 3 V. & B. 107. 
 
 2 For forms of summons, see Vol. III. 
 
 8 See ante, p. 80.
 
 BY ^^^^05I prepared. 
 
 311 
 
 have seen, it will sometimes do so at the instance of other par- 
 ties.^ 
 
 It has been before stated, that the committee of the estate of 
 an idiot or lunatic ought, previously to instituting a suit on his 
 behalf, to obtain the sanction of the Lord Chancellor or Lords 
 Justices to the proceeding;^ and that in the case of suits by the 
 assignees of bankrupts, it is necessary, pre^dously to instituting 
 the suit, to procure the sanction of the Court of Bankruptcy.' 
 And in like manner, before a suit can be instituted on behalf of 
 a charity, unless by the Attorney-General, the sanction of the 
 Charity Commissioners must be obtained.* 
 
 It is to be observed that, with respect to all the above-mentioned 
 cases, in which it is stated to be right, previously to the institution 
 of a suit, to obtain the proper sanction, the ojnission to obtain 
 such sanction is not a ground upon which a defendant to the suit 
 can object to its proceeding.^ 
 
 Ch. VI. § 3. 
 v^ >, ■ 
 
 Committees 
 of lunatics- 
 
 Assignees of 
 bankrupts. 
 
 Omission to 
 obtain sanc- 
 tion cannot be 
 taken advan- 
 tage of by 
 defendant. 
 
 Section HI. — By ichom Prepared. 
 
 The solicitor being duly authorized, the next step in the in- strictly 
 
 stitution of a suit is to have the bill properly ])rei)ared. The P'eparc'l by 
 
 duty of drawing the bill ought, strictly, to be performed by the 
 
 solicitor, who is allowed a fee for so doing ; '^ but as the rules of 
 
 Court require that the draft should be signed by counsel,'' and as usually by 
 
 counsel. 
 
 1 Anie, pp. ri, 80. 
 
 2 Ante, p. 85. 
 
 * Ante, p. 65. 
 
 * 16 & 17 Vic. c. 137, § 17: see post, 
 Chiip. XLV. § 2, Chnritiihlt Trusts Acts. 
 
 6 Having regard to the wor'lsof the 17th 
 pection of the (.'harifable 'I'ru'-ts Act above 
 referred to. it would seem doubtrul whether 
 the want of sanction would u'lt be an ob- 
 jection which a tji'fendant might take to 
 the suit'-* proceeding. 
 
 6 Hcgul. to (»rd. 2d Sched. 
 
 7 Ord. Vlir. 1, 2; .Slorv V.q. PI. §§ 47, 
 209; 1 Smith Cji. I'r. (2d Am. ed ) 106; 
 Ayckbr.urn Ch. I'r. (Loud. ed. 1^44) 5, C; 
 Coop. I->j. l'\ IS; Dwight r. IIum()hrevs, 
 3 McLean. 104; Kavi.s ?'. Davis. 4 C."E. 
 Green (N.J ) lf-0; Wright v. Wright, 4 
 Hnl-t. Ch (N. J.). 153; Chancery, Itule 1, 
 of New .ler-ey. 2 McCarter, 513; Hutch v. 
 Ku«far)hicvp," 1 Clarke. 63 ; sec I'elknai) 
 V. Stone, 1 .Allen, '.72,574; Burrmc. Lyu'lc. 
 6 Allen, 305. The signing on the" back 
 of thf bill is suflicient. Itwight v. Hum- 
 ph rev. i, 3 .McLean, 104. The 24tli Kf|iiify 
 Kulcoftlie I'nit'Ml Slates .Supreme Court 
 expre.ssly rer|uires the signa'ure of counsel 
 to the bill, " wliich ••hall be coiisi'lered as 
 an Hllirma'ion on hi-* |>irt, that upon the 
 instructions given to him, iind the ciise 
 laid before him, there is good ground for 
 
 suit, in the manner in which it is framed " 
 Where a corporation is plaintiff, the bill, if 
 not a sworn one, is drawn in the name of 
 the corporation, by its chartered title, «nd 
 signed by counsel. In cases where the 
 bill is to be sworn to, it should be signed 
 bv the officer making the OMth. 1 Hotf. 
 Ch. I'r. 90; 1 Barbour Ch. Pr. 44. The 
 bill nee<l not be utider the corporate seal; 
 that it is the bill of the corporation is suf- 
 ficiently vouched for by the signature of 
 the solicitor, whose nutliority need not bo 
 exhibited. George's Oeek Co. r. Dctmold, 
 1 Md. Ch. Dec. 371. If, however, tiie 
 plaintiff manages his cau^e in person, as 
 he may, tiie bill must be signed by him; 
 and, in such case, it would appear that a 
 bill need not be signed by counsel. See 1 
 Ho(T. (Jh. Pr. 97. The rules inc'ude infor- 
 mations, see Prcl. Ord 10 (4) The signa- 
 ture of the Atiorney-tk'neriil is rei|uired to 
 an information, and to an aniimdnient of 
 it, in addition to the signature ot the 
 counsel who settles the tlrnlt. In Attorncy- 
 (Jeneriil r. Fellow.", 1 ,). & W. 254, iin 
 amended inforniMijon was ordered to bo 
 taken off the file, because it had not 
 been siinctioned by the Allorni-v-( ii'ncral, 
 though he had sigiud the original inl'unna- 
 tion. For forms of notice of mill ion in such 
 case, see Vol. HI.
 
 312 
 
 THE BILL. 
 
 Cm. VI. § 3. 
 
 Must be 
 signed by 
 counsel. 
 
 Objection for 
 ■want of sipr- 
 nature may 
 be taken by 
 demurrer ; 
 
 or by motion 
 to take the 
 bill off the 
 file. 
 
 Forgery of 
 counsel's 
 
 iiuK'li of tlio success of tlio suit uiay depend upon tlie manner in 
 \\liuh tlie bill is frniiuMJ, it h.is been found more convenient in 
 practice that the bill should be ]»repared as Avell as signed by 
 counsel; and accordingly, except in particular cases, instead of the 
 draft of tlu' bill being prepared by the solicitor, and laid before coun- 
 sel for his ])crusal and signature, the instructions to prepare the bill 
 are generally, in the first instance, laid before the cotuisel, who 
 ]U"cpares the draft from those instructions, and afterwards affixes 
 his signature to it.-^ If neither the draft of tlic bill nor the ])rint 
 or engrossment of it be signed by counsel before the bill is filed, 
 or the hand be counterfeit or disowned, the bill will be dismissed 
 on tlie defendant's demurrer or motion." Thus, in Kirldey v. 
 Burton^ a demurrer was allowed to an amended bill, because the 
 name of counsel did not appear to the bill ; and if, upon inspection 
 of the record or an office copy, the name of counsel does not 
 ap]iear subscribed to the bill, the Court will, of its own accord, 
 order it to be taken oiF the file.* 
 
 The usual course, however, in such a case, appears to be for the 
 defendant to move that the bill may be taken off the file, and that 
 the costs may be paid by the plaintiff.^ If, upon such a motion 
 any doubt arises whether the draft of the bill was signed by 
 counsel or not, the Court may direct an inquiry into the fact ; and 
 if it appears that it was not signed by counsel, the bill Avill be 
 ordered to be taken off the file, and the plaintiff directed to pay 
 the defendant his costs.^ A motion to take the bill off the file, 
 Avith costs, may also be made where the draft has been altered 
 after it Avas signed by counsel.'' 
 
 Where it appeared that a solicitor had forged a counsel's name 
 to a pleading, he was fined 20?., and committed till the fine was 
 paid ; the party for whom he acted Avas also fined 100/.* 
 
 1 The bill must be signed by counsel. 
 The mere signature of counsel by another 
 person is nut a compliance with tlie rule, 
 either in spirit or letter. Counsel, before 
 annexing his name to a bill, should have 
 pfrusfd it, or been informed of its con- 
 tents in such manner as would satisfy him 
 that he miirlit certify that the bill stjited a 
 CMse on which the iilaintiff miglit l)e en- 
 titled to relief, set forth with so nuich re- 
 gard to th'! essential rul','S of pleading, and 
 y)rayirg relief in such manner as to entitle 
 it to the consideration of the Court. Per 
 Chancellor Zabriskie, in Davis v. Davis, 4 
 C. I-:. Green (X. .!.), 180, 181; see Rule 24 
 of the Kfjuity Ilules of the United States 
 Sujircme Court. 
 
 2 Wriglit V. Wright, 4 Ilalst. Ch. (N. J.) 
 I.'j3; Davis r. Davis.4C. K. Creen (N. -I. ), 
 180 : Carey v. Hatch, 2 Kdw. Ch. 190; 
 Partridge k Jackson, 2 Kdw. Ch. .520. 
 It cannot be signed afterwards without an 
 
 order of Court. Partridge v. Jackson, 2 
 Edw. Ch. 520. Tlie want of the signature 
 of counsel is a defect which requires an 
 amendment. Wright v. Wright, 4 Ilalst. 
 Ch.(N..I.)15.3. 
 
 3 5 Mad. .378. 
 
 4 French v. Dear, 5 Vesey, 547, 550. 
 Where the plaintiff discovers, before ap- 
 pearance, that counsel's name has been 
 omitted to the bill as filed, he should obtain 
 an order of course, on motion or petition, 
 to amend, and then add the name to the 
 bill. As to an omission, to print the signa- 
 ture, see (Joppeard i;. Rlayhew, 22 L.J. Ch. 
 408, M. R. 
 
 6 For form of notice of motion, see Vol. 
 III. 
 
 6 Dillon V. Francis, 1 Dick. 68; Pitt t>. 
 Macklew, 1 S. & S. 136, n. 
 
 7 Tioup ». Iticardo, 13 W. R. 147, L. C 
 
 8 Whitlock V. Marriot, 1 Dick. 16; and 
 see Bull v. Griflin, 2 Aiist. 563.
 
 MATTER OF TIIE BILL. 
 
 313 
 
 Where the same counsel who signed the draft of the original Ch. VI. § 4. 
 
 bill amends his former draft, which has his signature, it is not ' » ' 
 
 necessary that he should sign the draft again, as the signature will Unnecessary 
 
 be ajjplied as well to the amendment as to the tormer dratt; inal draft 
 
 nor is it necessary that there should be a second signature to the affp^^j^g 
 
 record. But if the amendments are made by another counsel, bill; 
 
 then it is necessary that there should be a second signature.^ The unless 
 
 , . - -I . 11 . • .1 amoncled by 
 
 usual practice, however, is for counsel m all cases to re-sign the another coun- 
 draft, whenever he amends it.^ ^^^' 
 
 By one of the orders of the Court, it is ordered, that no counsel Order of 
 shall sign any bill, answer, or other pleading, unless it be drawn, p^?ru^arand 
 or at least perused, by himself, before it is signed; and that signature of 
 counsel shall take care that deeds, writings, or records be not brevity' and 
 unnecessarily set out therein, in hcec verba; but that so much of scandal, 
 them only as is pertinent and material be set out or stated, or the 
 effect and substance of so much of them only as is pertinent and 
 material be given, as counsel may deem advisable, without need- 
 less prolixity ; and that no scandalous matter be inserted therein.^ 
 
 Sectiox lY. — The Matter of the Bill. 
 An oritrinal bill in Chancery is in the nature of a declaration at General na- 
 
 ■ , „,.-., T ,, • • 1 CI • -i 1 /^ i K ture of bill in 
 
 Common Law,* or of a libel and allegation in the bjnntual Courts." Equity. 
 
 It was, in its origin, nothing but a petition to tlie King, which, 
 
 after being presented, was referred to the Lord Chancellor, as the 
 
 keeper of his conscience ; ® and a bill still continues to be framed 
 
 in the nature and style of a petition : though it is now, in the 
 
 first instance, generally addressed to the Lord Cliancellor, Lord 
 
 Keefter, or Lords Commissioners for the custody of the Great 
 
 Seal.^ 
 
 Where a bill ]ir:iys llic (Icci'ce of the Court, touching rights Whatitmust 
 
 claimed by the j)ers(»n exliihiting it, in opposition to rights claimed foiitiim. 
 
 bv the ]K'rson against whom it is exhiljited, it must contain a 
 
 sl.itciiiciit showing the riglits of Ihf plaintiff or person exhibiting 
 
 the bill, l»y wlioin and in what manner he is injured, or in Avhat he 
 
 wants the assistance of the Court,* and in all cases, the bill must 
 
 1 Webster v. Tlirelfall, 1 S. & S. 135; E. (Ireen (N. .1.), 180, IRl; IToorl v Irwin, 
 
 nrailhwaite's I'r. 304 ; -cm-, however, IJurch 4 .lolin.Ch. 437 ; 24lli. 2'ith. ihk! 27th K(|uity 
 
 ". Iticli. 1 l{. & M. l"<t'., 158. liules of the United Stntcs Supreme Court, 
 
 Where the aniendments proposed to Hlate-l in note to Story K(|. I'l. § 2tJG. 
 he mnd- in the bill lire inerelv nf rlerieal * 3 HI. Com. 442. 
 
 errors in naniea, dates, or sinns, nnil such 6 3 \\\. Com. 442; Cill). For. Rom. 44. 
 
 errors are speilieil in the orleraiithorizinj; •"' See 1 Spenee, Iv| .Inr. 33.5. el mtf ; 1 
 
 the !uneiidm"'nts. tlie signature of counsel Lil. Camp. Chaneellors, Intro, ib. 2GG, 342. 
 to .Knell :imi'n ImentH i.-* not retjuired; T ('«r>p. V,(\. V\ S. 
 
 Urnithwaile's I'r. 304. » See /;r)/i/, "slatiiifr part" in this eliap- 
 
 * Ord. VIII. 2; see Davi.s r. Davis, 4 C. ter. A bill nviy be drawn with a double
 
 314 
 
 THE BILL. 
 
 Cii.VI. § 4. 
 
 Must show 
 
 plaintitrs 
 
 ri-bt. 
 
 Omission to 
 show plain- 
 titTs right, is 
 ground of 
 demurrer. 
 
 contain, as coiicisoly as may bo, a nana live of tlio niatorial facts, 
 niattcis, and circumstances on Avliich the jilaintilV relies,^ and must 
 ])i-ay s|)ocifically for the relief tlie plaintiff may conceive liimself 
 entitled to, and also for general relief.'^ This statement and 
 prayer form the substance and essence of every hill;'^ and before 
 entering more in detail into the consideration of the form of a 
 bill, the reader's attention should first be drawn to certain general 
 rules and ]irincij)les by which persons tVaming bills ought to be 
 guided in the i)erformance of their task. 
 
 In the first place it is to be observed, that every bill must show 
 clearly that the })laintiff has a right to the thing demanded, or 
 such an interest in the subject-matter* as gives him a right to 
 institute a suit concerning it.^ It would be foreign to the purpose 
 of this work to attempt the enumeration of the various cases in 
 which bills have been dismissed, because filed by parties having no 
 interest in the subject-matter, or no right to institute proceedings 
 concerning it : to do so, indeed, would necessarily lead to the 
 consideration of the general principles of Equity, and would be 
 more fitting for a treatise upon the equitable jurisdiction of the 
 Court than for a book upon its practice. All that need now be 
 said upon this subject is, that if it is not shown by the bill that 
 the party suing has an interest in the sulyect-matter, and a ])roper 
 title to institute a suit concerning it, the defendant may demur;® 
 
 aspect; so that, if one ground fail, the 
 plaintiff mav relv upon another. McCon- 
 nell V. McCoDneil. 11 Vt. 2!)0; Murphv v. 
 CI irk, 1 Sm. & M. 221: Baines v. McGee, 
 1 Sm. & M. 208; Lignn v. Ilpnderson, 1 
 Bland, 236 ; Mills v. AJetcalf, 1 A. K. Marsh. 
 477; IVirnettu. Wo 'ds, 2 Jones Eq. (N.C.) 
 198. A bill framed with a double ;ispect 
 must be consistent with itself Hart v. 
 McKeese, Walker Ch. 417. 
 
 1 The rule in Massachusetts by Statute 
 is, that the material facts and circumstan- 
 ces shall be stated with brevity, omitting 
 immateri d and irrelevant matters. Genl. 
 Sta's. c. 11.3, § 3; Mmss. Ch. Pr. Rule 4. 
 The rules of Chancery Practice in Maine 
 require the bill ro set forth clearly, succinct- 
 ly, ani precisniy, the facts and causes of 
 comp'aint. Hoynton v. Barstow, 38 Maine, 
 577. As to the remedy for verboseness 
 in a bill, see Williams v. Sexton, 19 Wis. 
 42. 
 
 2 1.5 & 16 Vic. c. 86, § 10. 
 
 3 An appliciition to the Court for relief 
 in Equity, which does not contain a praj-er 
 for process to be served on the defendant, 
 or conclu le with a general interrogatory, 
 ma)- be regarded a-* a bill ; and, if properly 
 amended, relief may l>e grnnted upon it. 
 Btdknap v. Stooe. 1 Allen, 572. 
 
 * The subject-matter should be properly 
 described. A bill for the foreclosure of a 
 chattel mortgage should show of what the 
 
 property consists, the mortgagor's title or 
 claim of title to ir, and that it is within the 
 jurisdiction of the Court. Chapman v. 
 "Hunt, 1 McCarter (N. J.), 149. ir,2. 
 
 * Ld. Red. 154 ; and see Jeredein v. 
 Bright, 2 .1. & H. 325; Nokes v. Kish, 3 
 Drew. 735 ; Columbine v. Chichester, 2 Phil. 
 27; 1 C. P. Coop t. Cott. 295; 10 .lur. 626; 
 Kennebec & Portland R.R. Co v. Portland 
 and Kennebec R.R. Co., 54 Maine, 173, 
 185; Storv Kq. I'l. § 23; Crnger u. ILili- 
 da}', 11 Paige, 314; Bailey v. Rvder, 10 
 N. Y. (G Seiden) 363 ; Waltlnll «. Hives, 
 34 Al:i. 91. It is a fundamental rule in all 
 cases of bills in Kquily, that they must 
 state a case within the apnropriale juris- 
 diction of a Court of Equity. Story Eq. 
 PI. §§ 10, 34; Chase v Palmer, 25 Maine, 
 341; Mav v. Pnrker, 12 Pick 34: Stephen- 
 son V. Davis, 56 .Maine, 73, 74. In all bill.s 
 in Equity, in the tJoiirts of the United 
 States, the citizenship should app^'ar on 
 the fac'^ of the bill to entitle the Court to 
 take jur sdiction ; otherwise the bill will 
 be ilisinissed. Doilge v. Perkins, 4 Mason, 
 435; Storv Eq. PI. 26, note; Bingham v. 
 Cabot, 3 f)all. 382; .J;ickson v. Ashton, 8 
 Peters, 148; Storv E(i. PI. § 492 ; Vose v. 
 Philbrook, 3 Stt'irv, 335; see Louisville 
 and R.R. Co. v. Stetson, 2 How. U.S. 497. 
 
 6 L'l. Red. 154; Story Eq. PI. §§ 260, 
 261, 508, 609.
 
 MATTER OF THE BILL. 315 
 
 tluiP, where a plaintiff claims under a will, and it appears npon the Ch. VL § 4. 
 construction of the instrument, that he has no title, a demurrur '— y — —^ 
 will be allowed. In Broxonsioord v. Edwards^ which is the 
 case referred to in Lord Redesdale, in support of the above 
 proposition, Lord Ilardwicke is rejiorted to have said, upon the 
 argument of a demurrer, that if the Court had not been satisfied, 
 and had, therefore, been desirous that the matter should be more 
 folly debated at a deliberate hearing, the demurrer would have 
 been overruled, without prejudice to the defendant's insisting on 
 the same matter by way of answer; but in a note to his treatise,^ 
 Lord Redesdale observes, that "j^erhaps this declaration fell from 
 the Court rather incautiously: as a dry question upon the con- 
 struction of a will may be as deliberately determined upon argu- 
 ment of a demurrer, as at the hearing of a cause in the oi'dinary 
 course, and the difference in expense to the parties inay be con- 
 siderable." Of the truth of this obsei-vation there can be no 
 doubt ; and it is much to be T\'ished that, in cases of this descrip- 
 tion, where the right of the plaintiff in the subject-matter of the 
 suit depends upon a simple point, such as that of the construction 
 of a will, the practice of demurring to the bill were more frequent- 
 ly resorted to, as by such means considerable expense might fre- 
 quently be saved: for if it appears at the hearing that the party 
 filing the bill is not right in the construction he ])uts upon the 
 instrument, the bill must be dismissed: which, if the plaintiff's 
 bill had been demurred to in the first instance, would have been 
 the result, without the additional expense caused by the other 
 proceedings.^ 
 
 The rule that a plaintiff should show by his bill an interest in k„1o not 
 the subject-matter of the suit, applies not to one plaintiff only, but coniined to 
 
 ouc pluiiitiu* 
 
 to all the plaintiffs; and if several persons joined in filing a bill, 
 and it appeared that one of them had no interest, the bill was 
 fijrmerly f)i)Oii to demurrer:* though it aj^peared that all the other 
 jdaintifls had an interest in the matter, and a right to institute a 
 suit concerning it. This, as we have seen, is no longer so; but 
 
 1 2 Ves. S. 243, 247; and see Mortimer 11 W. R. 206, V. C. K.; Neshitt v. Bpr- 
 r. Hartley, 3 I>e (J. & S. 316; Evans v. ridge, 9 Jiir. N. S. 1045; 11 W. R. 446, M. 
 Evans, IS .Iiir. 66G, L. .I.J.; Cociirane v. R.; Godfrev i-. Tucker, 9 Jur. N. S. 11S8; 
 Willis, 10 Jur. N. S. 102, LJJ.; C.-IlinR- 12 W. H. 33, M. K.; and see Sanders v. 
 wo.»l r. Hii!^s<-ll, 10 Jur. N. S. 1002; 13 W. Benson, 4 IJeav. 350, 357. 
 H. 03, L..I.I.; I.autnuri!. Att"rnnv-(;i'ni'ral, < See tlin Mavnr and .Milermen of Col- 
 li .lur. N. S. 4K; 13 W. H. 305,"L..I.1. Chester v. ,"l 1'. Wms. 595; TiouRliton 
 
 ■■^ l.d. H.-.I. 154. n.(/^). V. Geltey, 1 Dick. 382 ; Cull' r. I'lif.ll, 
 
 3 Hut wiiiTf till' detenflnnt allows the 4 Ku-is. 242 : Makepeaoo v. l[;ivtliiirnc, 
 
 cause to he hroufflit to a hearing in such a 4 Russ. 244; Kin;; of Spiin v. Macliado, 4 
 
 case, the firitctice i-t to •li'-niiss the hill Russ. 225; I)elrindre r. Slmw, 2 Sim. 237; 
 
 without co'ts. Hill V. Roiirdon, 2 S. & S. I'a^'n v. Town-end, 5 Sim. 395; Sorv Kq. 
 
 431. 439; Jones r. Davids, 4 Huss. 278; I'l. §§ 509, 541, 544 ; Chirkson r. Det'evster, 
 
 Hollin-.'-worth r. Sliakfshaft, 14 Hcav. 492; 3 I'aV'e, 336; Manning v. Gloucester, 6 
 
 W.hh f. Knuhind, 21t Hcav. 44; 7 Jur. N. I'ick. 6. 
 S. 163; Ernest v. Wi.se, 9 Jur. N. S. 145;
 
 316 
 
 THE BILL. 
 
 Cu. VI. ^ 4. 
 
 riaintirt"s 
 iiitorost must 
 be existiui;;: 
 
 rrosuniptive 
 devisee, 
 
 or nest of 
 kin, 
 
 cannot sue. 
 
 Nor can 
 cent in "rent 
 remainder- 
 man, for 
 inspection of 
 title deeds, 
 
 but may to 
 secure trust 
 property. 
 
 Bill bv tenant 
 in tail in 
 remainder 
 and his chil- 
 dren, to 
 perpetuate 
 testimony to 
 his marriage, 
 cannot be 
 supported ; 
 
 llu' Court may make such onlor, on the liearinu:, as justice 
 re(iuiies:^ it must not, however, be supposed that it is not still 
 important to avoid joining a ])laintift' who has no interest in the 
 bill. 
 
 The plaintiffs in a suit must not only show an interest in the 
 subject-matter, but it must be an actual existing interest: a mere 
 possibility, or even probability, of a future title will not be 
 sufficient to sustain a bill;- therefore, where a plaintiff, claim- 
 ing as a devisee in the will of a person who was living, but a 
 lunatic, brought a bill to perpetuate the testimony of witnesses to 
 the will, against the presumptive heir-at-law,^ and where per- 
 sons, who would have been entitled to the personal estate of a 
 lunatic, if he had been then dead intestate, as his next of kin, 
 supposing him legitimate, bronght a bill in the lifetime of the 
 hmatic to perpetuate the testimony of witnesses to his legitimacy, 
 against the Attorney-General, as supporting the rights of the 
 Crown,* demurrers were allowed. For the parties in these cases 
 had no interest which could be the subject of a suit: they sus- 
 tained no character under which they could afterwards sue ; and 
 therefore the evidence, if taken, woidd have been wholly nugatory.^ 
 Upon the same principle, it has been held, that a bill cannot be 
 sustained by a purchaser from a contingent remainder-man of his 
 interest in the property, against a tenant for life, for inspection of 
 title deeds : although a bill woidd lie for that purpose by a person 
 entitled to a vested remainder,^ But it must not be supposed 
 tliat contingent remainder-men can, in no case, be plaintiffs : for 
 in many cases (such as suits for the administration of^ or to secure, 
 the trust property to which they are contingently entitled), such 
 persons may properly be plaintiffs ; "^ and orders have been made 
 at the suit of such persons, for the payment of trust funds into 
 Court.8 
 
 A bill filed by a person who filled the character of tenant in 
 tail in remainder, and his children, to perpetuate testimony to the 
 marriage of the tenant in tail, could not be supported : because 
 the father, being confessedly tenant in tail in remainder, could 
 have no interest whatever in proving the fact of his own marriage, 
 
 1 15 & 16 Vic. c. 86, § 49, ante, p. 303. 
 
 2 Ld. Red. 156; and see observations of 
 Lord Cottenham, in Finden v. Stctihens, 2 
 Phil. 148 ; 1 C. 1'. Coop 329 : 10 .lur. 1019 ; 
 Davis V. Angel, 31 Beav. 223; 8 Jur. N.S. 
 709, 1024. 
 
 8 Siickvill V. Avieworth, 1 Vern. 105; 1 
 Eq. Ca. Ab. 234,' pi. 3; see also 2 Prax. 
 Aim. 500, where the form of demurrer is 
 set out. 
 
 * Smith V. Attornev-General, cited Ld. 
 Bed. 157; 1 Vern. lOo, n., ed. Kaithby; 6 
 Ves. 255, 260; 15 Yes. 136. 
 
 5 Story ?.([. PI § 301, and cases citerl; 2 
 Story Kq. .lur. § 1511 ; Diirsley v. Berkley, 
 6 Sumner's V'cs 251, and notes. 
 
 6 Noel V. Ward, 1 Mad. 322. 329; and 
 see Davis v. Earl of Dvsart, 20 Beav. 405; 
 1 .lur. N. S. 743, and cases there cited, for 
 instances of vested reiniiinder-meii. 
 
 7 Koberts v. Roberts, 2 De G. & S. 29 ; 2 
 Phil. 534. 
 
 8 Ross V. Ross, 12 Beav. 89 ; Governesses' 
 Benevolent Institution v. Rusbridger, 18 
 Beav. 467.
 
 MATTER OF THE BILL. 
 
 317 
 
 the remainder in tail being vested in liira ; and the otlier plaintiffs 
 (tlie children) were neither tenants in tail nor remainder-men in 
 tail, but the issue of a j^erson who was de facto and de jure tenant 
 in remainder in tail, having the whole interest in him ; and, con- 
 sequently, the children had no interest in them, in respect of 
 which they could maintain their bill.^ UlDon the same prin- 
 ciple, where the dignity of Earl was entailed upon an individual 
 who died, lea\dng tAvo sons, the eldest of whom inherited the 
 dignity : upon a bill filed by his eldest son, in his lifetime, against 
 the second son of the first Earl, and the Attorney-General, to 
 perjietuate testimony as to his father's marriage, a demurrer was 
 allowed.^ 
 
 Where the plaintiff does not show an existing interest by his 
 bill, the disclaimer or waiver of one defendant in his favor will 
 not sustain the bill against the other defendants.^ 
 
 Where, however, a party has an interest, " it is perfectly imma- 
 terial how minute the interest may be,* or how distant the possi- 
 bility of the possession of that minute interest, if it is a j^i'esent 
 interest.^ A present interest, the enjoyment of which may depend 
 upon the most remote and improbable contingency, is, nevertheless, 
 a present estate ; and, as in the case upon Lord Berkeley's will,® 
 though the interest may, with reference to the chance, be worth 
 nothing, yet it is in contemplation of law an estate and interest, 
 uj)on which a bill may be sujiported." "^ 
 
 But, although a {)laintiff may liave a present estate or interest, 
 yet, if his interest is such that it may be barred or defeated by the 
 act of the defendant, he cannot support a bill ; as in the case put 
 by Lord Eldon, in Lord Dursley v. Fitzhardinge^ of a remainder- 
 man filing a bill to perpetuate testimony against a tenant in tail. 
 I'o such a bill it seems tlie tenant in tail might demur, ujton the 
 ground that he may at any time l)ar the entail, and thus deprive 
 the jilaintiff of his interest.® 
 
 A plaintiff must not only show in his bill an interest in the 
 subject-matter of the suit, but he must also make it appear that he 
 has a jirojier title to institute a suit concerning it;" for it very 
 
 Ch. VI. § 4. 
 « ^ > 
 
 nor bill by 
 eldest son of 
 heir in tail 
 of a dignity. 
 
 Disclaimer of 
 one defendant 
 in favor of 
 plaintiff 
 when insuf- 
 ticiont. 
 
 Minuteness 
 or remoteness 
 of existing 
 interest 
 immaterial, 
 
 if incapable 
 of being 
 defeated. 
 
 Bill must 
 show a 
 proper title. 
 
 1 Allan V. Allan, 15 Ves. 130, 135. 
 
 ■■i Karl of Hellast y. Chichester, 2 .J. & VV. 
 43'J, 449, 4.0a. 
 
 3 GrilKth «. Uicketts, 7 Hare, 305 ; 14 
 Jur. \m, '.Vlh ; llollingsworth v. Sliake- 
 ghaft, 14 Ueav. V.vL. 
 
 •» See Seaton v. Grant, L. R. 2 Ch. Ap. 
 45!t, 4ti3. 4tJ5. 
 
 ^ Sforv Kq. I'l. § 301. 
 
 " Lord Uuioley v. Fitzhardinge, 6 Ves. 
 251. 
 
 7 Per Lord Kid'm, in Allan v. Allan, 15 
 Ves. 136; see al.w Davib v. Angel, 31 Beav. 
 
 223; 8 Jur. N. S. 709, 1024; 2 Storv En. 
 Jur. § 1511. 
 
 " Ves. 2G2 ; see, however, Butcher v. 
 Jackson, 14 Sim. 444, and the observations 
 of Sir L. SliMdwell V. C. at p. 455. 
 
 8 It would be a fruitless exercise of 
 power to entertain a bill to ])er|>etiiaie evi- 
 dence in such a case. Story \'a\, I'i. § 301. 
 
 1" I..1I. Hed. 155. It is not essential that 
 the pi liritilf's title should be e.Kpliiiily 
 averred. It is siillicient that it may I lirly 
 be interred from the facts sfiited. U'ebbi-r 
 V. (Jiige, 3'.) N. J I. 182; Story Kq. I'l. § 730; 
 Clap|i V. Slie])hard, 23 I'ick. 22S.
 
 318 
 
 THE BILL. 
 
 Cii. VI. 5 4. 
 
 unless bill is 
 tiled to pro- 
 toct pniperty 
 lu'iuliiij; 
 <Cr;int of 
 probate. 
 
 How proof of 
 wills alli'tceil. 
 
 Executor, 
 filing a hill 
 before pro- 
 bate, must 
 prove before 
 hearing. 
 
 Same rule 
 applies to ad- 
 mioistratord ; 
 
 oAon li;ii)iioiis, th:i(. a piTson iitay have, an interest in the snbject- 
 niatter, and yet, for want of compliance witli some requisite forms, 
 he may not be entitled to institute a suit relating to it. Thus, 
 for instance, the executor of a deceased person has an interest in 
 all the personal pro])erty of his testator; hut, till he has proved 
 the will, he cannot assert his right in a Court of justice; if, there- 
 fore, a man files a bill as executor, and does not state in it that he 
 has i)roved the will, the bill wall be liable to demurrer.^ 
 
 An executor may, however, it seems, pending an a])plication for 
 probate, file a bill to jjrotect the estate, by obtaining an injunction 
 or otherwise : although he alleges in the bill that he has not yet 
 obtained probate.^ 
 
 Formerly, it w^as necessary to allege that the will was proved in 
 the proper Ecclesiastical Court, though it was not necessary to 
 mention in what Court ; ^ and this still ai)i)lies to all wills proved 
 before the constitution of the Court of Probate ; ^ but since that 
 date, it is conceived that it is sufficient simply to allege that the 
 wUl has been proved : though in practice it is usual to allege that 
 it has been proved in Her Majesty's Court of Probate, or that it 
 has been duly proved. Formerly questions often arose, w^hcther 
 the will had been proved in the proper Court :'^ whether, for 
 instance, a prerogative probate was necessary;*' but these ques- 
 tions are removed by the constitution of the present Court of 
 Probate, except as to wills proved before the 11th January, 
 1858.^ 
 
 If an executor, before probate, file a bill, alleging that he has 
 proved the wall, such allegation will obviate a demurrer ; ^ he must, 
 however, prove the wall before the hearing of the cause, and then 
 the probate will be sufficient to support the bill, although it bear 
 date subsequently to the filing of it.^ 
 
 In like manner, a plaintiff may file a bill as administrator before 
 he has taken out letters of administration, and it will be suflicient 
 to have them at the hearing.^" 
 
 1 Humphreys v. Inyledon, 1 P. Wms. 
 752; Storv Eq. I'l. § &Zo ; Champion v. 
 Parish, 3 Edw. Ch. 581. 
 
 '■^ Newton V. Metropolitan Railway Com- 
 pany, 1 Dr. & Sm. 583; 8 Jur. N. S. 738; 
 see Kawlings V. Lambert, 1 J. & H. 458; 
 Steer v. Steer, 13 \V. li. 225, V. C. K. ; 2 
 Ltr. & Sm. 311; Overingt<m v. Ward, 34 
 Beav. 175; and also jjust, Cliap. XXXIX. 
 § 1, as to obtaining receivers pending liti- 
 gation as to probate. 
 
 8 Humphreys v. Ingledon, 1 P. Wms. 
 752. 
 
 4 20 & 21 Vic. c. 77. 
 
 5 T..urton v. Flower, 3 P. Wms. 369, 370; 
 but see .Jo^saume v. Abbot, 15 Sim. 127. 
 
 6 Thomas v. Davies, 12 Ves. 417; Cliall- 
 nor V. Murhall, 6 Ves. 118 ; Newman v. 
 
 Hodgson, 7 Ves. 409; Metcalfe?;. Metculfe, 
 1 Keen, 74, 79; McAIahon v. Rawliugs, 16 
 Sim. 429. 
 
 ' 20 & 21 Vic. c. 77, § 1; Ord. in 
 Council of 2d Dec, 1857; 3 Jur. N. S. Pt. 
 H. 479. 
 
 » Humphreys v. Ingledon, 1 P. Wms. 
 752. 
 
 y Humphreys v. Humphreys, 3 P. Wms. 
 349. 
 
 10 Fell V. Lutwidge, Barn. 320; Hum- 
 phrevs V. Huniphrevs, 3 P. Wms. 301 ; Hor- 
 ner V. Horner, 23 L. .J. Ch. 10, V. 0. K. ; 
 see Call V. Ewiiig, 1 lilackf. 301; Lan-don 
 V. Potter, 11 Ma-s. 313; Savage v. Mer- 
 riam, 1 Blaclcf. 17G; Culler v. Dade, .Minor, 
 20; Axers v. Musselman, 2 Urowne, 115.
 
 MATTER OF THE BILL. 
 
 319 
 
 It is to be observed that, although an executor or administrator 
 may, before probaie or administration granted, file a bill relating 
 to tlie i:)roperty of the deceased, and such bill will not, on that ac- 
 count, be demurrable, provided the granting of probate or of letters 
 of administration be alleged in the bill, yet a defendant may take 
 advantage of the fact not being as stated in the bill, by plea ; thus, 
 in >Si?nons v. Jlibnan,^ where letters of administration had been 
 granted to the defendant under the idea that the deceased had died 
 intestate, whereas, in fact, he had made a will and appointed the 
 plaintiff his executor, who, before probate, filed a bill, for the pur- 
 pose of recovering j)art of the assets of the testator from the de- 
 fendant, alleging that probate of the will had been granted to him, 
 to which bill the defendant put in a plea stating that such was not 
 the fact : Sir Lancelot Shadwell V. C. allowed the plea. 
 
 But although an executor, filing a bill before probate, must, as 
 we have seen, allege in it that he has proved the will, it is not nec- 
 essary that in a bill against an executor such a statement should be 
 made : for if executors elect to act, they are liable to be sued before 
 probate, and cannot afterwards renounce.^ It also seems, that if a 
 party entitled by law to take out administration to a deceased per- 
 son, does not do so, but acts as if he were administrator, and re- 
 ceives and disposes of the property, he will be Uable to account as 
 administrator ; but in both cases it is necessary to have a duly con- 
 stitute<l legal personal representative before tlie Court.' 
 
 It may be here observed, that if it appears to the Court that the 
 probate, or the letters of administration, bear a stamji applicable 
 to a less sum than tliat which is sought to be recovered in the 
 cause, no decree can be obtained until the defect has been remedied, 
 and tlie party can show that he represents the estate to an amount 
 euHicieiit to cover liis claim.* 
 
 Where it appears that, in order to complete the plaintiff's title 
 to tlie subject of tlie suit or to the relief he seeks, some prelimi- 
 nary act is necessary to be done, the performance of such prelimi- 
 nary act ought to be averred ujion the bill, and the mere allegation 
 that the title is comjdetc, without such averment will not be sufii- 
 cieiit ; thus, where a ])laintiff claimed as a shareholder by pur- 
 chase, of certain shares in a Joint-Stock Com])any or Association, 
 alleging in his bill that he liad purchased such shares for a valuable 
 consideration, anil hud ever since held the same, but it ajipcared 
 
 Ch. VL § 4. 
 
 Bill not 
 demurrable 
 because no 
 probate or ad- 
 njinistration 
 granted ; 
 
 but defendant 
 may plead 
 that fact. 
 
 Not neces- 
 sary to state 
 probate as 
 taken out, in 
 bill against 
 executor. 
 
 Adminis- 
 trator de son 
 tort may be 
 sued: 
 
 but legal per- 
 sonal repre- 
 sentative 
 must be a 
 party. 
 
 "Where pro- 
 bate or ad- 
 ministration 
 is insufficient- 
 ly stamped. 
 
 All prelimi- 
 nary acts 
 necessary to 
 complete 
 plaintiff's 
 tit In must be 
 averred. 
 
 1 2 .Sim. 241; .Story Eq. IM § 727; see 
 I'lelloat ». M'Tsc, 2 Huyw. l.'>7, aii(l see 
 Tentpi-st r. Lorl Canioys, 1 \V. N. 16; 
 14 W. |{ ■.'.■a;, ,M. It. 
 
 ■■! iJl.witt r. Hlpwitt, Younge, 541; Cle- 
 land I' Clelaml, I'ruc. (Jh. 64; see Story 
 En. I'l. § !•!. 
 
 » OeuHor r. Robinson. 14 Jienv. 589; 15 
 Jur. 104'J, and the cases llieiu referred to. 
 
 * Jones V. Ilowclis, 2 Iliire, 342, 353; 
 C'liristian r. iJevereu.x, 12 Sim. 264, 273; 
 Howard v. I'riiue, lu Ueav. 312,314; and 
 see Killock v. (iregg, c'lU'A 2 llare, 346, 
 364; Harper D Kaveiiliill, i'anil. H.'); liob- 
 erts V. Madocks, 16 iSiin. 55; .Smith v. 
 Creagli, Batty, 3b4; Mail u. I'unter, 5 aim. 
 568.
 
 320 
 
 THE BILL. 
 
 Ch.YI. §4. 
 
 Plaintiff 
 claiminjr as 
 heir need uot 
 state pedi- 
 gree. 
 
 Where plain- 
 tiff claims by 
 privity or 
 contract : 
 
 in suits be- 
 tween mort- 
 gagor and 
 mortgagee ; 
 
 between 
 
 lessor and 
 lessee ; 
 
 between 
 principal 
 and agent. 
 
 in another part of the bill, that, by the rules of the company or 
 association, no transfer of shares could be valid in Law or Equity 
 unless the i)urc'haser was approved by a board of directors, and 
 signed an instrument binding him to observe the regulations: 
 Lord Brougham allowed a demurrer, on the ground that the i)er- 
 formance of the rule above pointed out was a condition precedent, 
 and ought to have been averred upon the bill, and that the allega- 
 tion of the i)laintitF having purchased the shares and being a share- 
 holder, although admitted by the demurrer, was not sufficient to 
 cure the defect.^ 
 
 When a plaintiff claims as heir-at-law, it was formerly considered 
 that he must state in his bill how his title arose ; ^ but it is now 
 settled, that an allegation that he is heir is sufficient.'' 
 
 Where there is a privity existing between the plaintiff and 
 defendant, independently of the plaintiff's title, which gives the 
 plaintiff a right to maintain his suit, it is not necessary to state the 
 plaintiff's title fully in the bill ; thus, wdiere a plaintiff's claim 
 against the defendant arises under a deed or other instrument, 
 executed by the defendant himself, or by those under whoni he 
 claims, which recites, or is necessarily founded upon, the existence, 
 in the plaintiff, of the right Avliich he asserts, it is sufficient to 
 allege the execution of the deed by the parties. In like inanner, 
 in the case of a bill, by a mortgagor in fee, against a mortgagee, 
 to redeem the mortgage, it is sufficient merely to state the mort- 
 gage deed, without alleging that the mortgagor was seised in fee ; 
 or if the mortgagor has only a derivative title, it is not necessary 
 to show the commencement of such derivative title, or its continu- 
 ance : because the right of the plaintiff" to redeem, as against the 
 defendant, does not dei^end upon the title under which he claims, 
 but upon the proviso for redemption in the mortgage deed. Upon 
 the same jjrinciple, where a defendant holds under a lease from the 
 plaintiff, the i)laintiff need not set out his title to the reversion : 
 the fact of the defendant having accepted a lease from the plaintiff 
 being sufficient to preclude his disputing the title under which he 
 holds.* In like manner, where a man employs another as his bailiff 
 or agent, to receive his rents or tithes, the right to call ujion the 
 bailiff or agent for an account does not depend upon the title of 
 the emjiloyer to the rents or tithes, but to the privity existing be- 
 
 1 Walbum v. Ingilby, 1 M. & K. 61, 77; 
 see mIso Morr.s v Keli}', 1 J. & \V. 481; 
 Colljurn V. Uuiicombe, 9 Sim. 151, 154; 2 
 Jur. 054; liichardson v. Gilbert, 1 8im.N. 
 S. 336; 15 .Jur. 369; Story Eq. I'l. §§ 257, 
 257 a, 258, and Cassell v. Stiff, 2 K. & J. 
 279, as to the title to be shown to copy- 
 right. 
 
 ^ Lord Rigby v. Meech, Bunb. 195; 
 Baker v. Harwood, 7 Sun. 373. 
 
 3 Burrs v. Feukes, 10 Jur. N. S. 4GG; 12 
 W. K. 006, V. C W.; and see Delorne v. 
 Hollingswortli, 1 Cox, 421, 422; Ford v. 
 Beeriiig, 1 Ves. J. 72. 
 
 * Iftiie plaintiff' claims as heir, or under 
 a derivative title Ironi the mortgagor or 
 lessor, he must, as in other cases, show 
 how he makes out his title.
 
 MATTER OF THE BILL. 
 
 321 
 
 tween him and his bailiff or agent ; the employer may, therefore, 
 maintain a bill for an account, without showing any title to the 
 rents or tithes in question. 
 
 "Wliere, hoAvever, the plaintiff's right does not depend upon any 
 particular privity between him and the defendant, existing inde- 
 pendently of his general title to the thing claimed, there it will be 
 necessary to sliow his title in the bill.^ Thus, where a bill is filed 
 by the lessee of a lay impropriator against an occupier, for an ac- 
 count of tithes, there the right of the j^laintiff to the account 
 depends solely upon his title : he must, therefore, deduce his title 
 regularly, and show not only the existence of the lease, but that 
 the person from whom it is derived had the fee.- 
 
 In like manner, where a ])laintiff in a bill for sjiecific jierform- 
 ance intends to rely on a Avaiver of title by the defendant, it is not 
 sufficient to allege upon his pleadings the facts constituting the 
 waiver : he must show how he means to use the facts, by alleging 
 that the title has been Avaived thereby.^ 
 
 The same ]jrecision which is required in stating the case of a 
 plaintitf, is not necessary in showing the interests of the defendant 
 against whom the relief is sought:* because a plaintiff cannot 
 always be su])posed to be cognizant of the nature of a defendant's 
 interest, and the bill must frequently proceed with a view to obtain 
 a discovery of it ; thus, where a bill was filed by a lessee for years, 
 for a ])artition, and the jilaintiff, after stating his own right to one 
 undivided tenth pait, with precision, alleged that the defendant 
 was seised in fee-simple of^ or otherwise well entitled to, seven other 
 tenth i)arts, a demurrer, on the ground tliat the plaintitf had not 
 set out the defendant's title with sufficient certainty, was over- 
 ruled.* And even where it is evident, from the nature of the case, 
 that a plaintiff must be cognizant of the defendant's title, and sets 
 out tlie same informally, yet, if he alleges enough to phow that the 
 defendant has an interest, it will be sufficient. Thus, where a bill 
 was fiU-d to redeem a mortgage, but the conveyance was so stated 
 that it did not show thiit any legal estate had passed to the de- 
 fendant, a (h'luurrer was overruled: because the defendant could 
 not be perniitte<l to disjjute liis own title, which was admitted by 
 the plaintitf to be good.'' 
 
 In all ea-ses, however, a bill must sliow that a del'euduuL is in 
 some way liable to the })laintiff's demand," or that he has some 
 interest in the subject of the suit : * otherwise it will be liable to 
 
 Cii. VI. § 4. 
 
 "Where claim 
 depends only 
 Qji title, it 
 nuist be 
 staled: 
 bill by lessee 
 tor tithes. 
 
 1 Serf IluiTifitirey v. Tate, 4 Ircd. Eq. 
 220; Smith i; Turner, 4 Ired Eq. 43a; 
 I'erk I'. .Mullowit. 10 N. Y. 6u». 
 
 * I'c'iiny V. Iloper, IJunb. 115; Bur well 
 V. (JoatuH, ib. 12'J. 
 
 8 Clive /'. Beaumont, 1 L>e G. & S. 397; 
 13 Jur. 220. 
 
 Suit for spe- 
 cific perform- 
 ance, where 
 waiver of title 
 insisted on. 
 
 Stating case 
 
 against 
 
 defendant. 
 
 rinintiffinusl 
 show (icl'cnd- 
 nnt lias uu 
 interest. 
 
 21 
 
 * Storv Eq. I'l. § 255; Morgan v. Smith, 
 11 III. l'J4. 
 
 6 Baring v. Nash, 1 V. & B. 651, 552. 
 
 •* Ifoberls V. (JIayton, 3 Aust. 716. 
 
 " l.d. Ui-Ai. 103. 
 
 6 \A. lied. liiO; riunibcw. Plumbc, 4 Y. 
 & C. Kx. 345, 30(1 ; St..ry Kq. I'l. § 202 el 
 teq.; Humphreys v. late, 4 Irud. Eq. 220.
 
 322 
 
 THE BILL. 
 
 (^n. VI. § 4. 
 
 Exception in 
 case of mem- 
 bers or oflicers 
 of corpora- 
 tions. 
 
 Arbitrators, 
 attorneys, or 
 agents. 
 
 Pri\-ity be- 
 tween plain- 
 tiff and 
 defendant 
 must be 
 shown : 
 
 (lonmiTor. Tims, -whore a bill was bronoht by the oblicjee in a 
 bond, a<i;aiiist tlio heir ol" the obligor, alleging (hat the heir, liaving 
 assets by deseent, ought to satisfy the bond, a demurrer was al- 
 lowed, because the plaintiff had not expressly alleged in the bill 
 that the heir was bound in the bond : although it was alleged that 
 the heir ought to pay the debt;^ so, Avhere a bill was brought 
 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, and did not, therefore, bind assignees, 
 and was not, stated by the bill expressly to bind assignees, a 
 demurrer by the assignee was allowed.^ Upon the same prineijile, 
 Avhere, in a bill against A. and B., the plaintiff stated a circumstance 
 which was material in order to charge B., not as a fact, but as an 
 allegation made by A., a demurrer by B, was allowed," 
 
 And here it may be observed that, although it is generally 
 necessary to show that the plaintiff has some claim against a 
 defendant, or that a defendant has some interest in the subject- 
 matter in litigation, yet there are cases in which a bill may be 
 sustained against defendants who have no interest in the subject, 
 and who are not in any manner liable to the demands of the 
 plaintiff. The cases alluded to are those, which have been before 
 referred to, of the members or officers of a corporation aggregate, 
 who, as we have seen, may be made parties to a suit against the 
 corporation for the purposes of discovery. With respefct to the 
 other persons who are generally included amongst the exceptions 
 to the rule, that persons who have no interest, or against whom 
 no decree can be j^ronounced, cannot be made parties to a suit, 
 namely, arbitrators, attorneys, or agents, it will be seen, upon 
 reference to what has been before stated ui)on this subject,^ that 
 the right to make them parties is confined to cases where relief is, 
 in fact, prayed against them, viz., where -they are implicated in 
 fraud or collusion, and it is specifically asked that they may pay 
 the costs ; or where they are the holders of a ])articular instru- 
 ment, which the plaintiff is entitled to have delivered x;p.'' 
 
 A bill must not only show that the defendant is liable to the 
 plaintiff's demands, or has some interest in the subject-matter, 
 but it must also show that there is such a privity between him 
 and the plaintiff as gives the plaintiff a right to sue him :" for it is 
 frequently the case, that a plaintiff has an interest in the subject- 
 
 1 Crosseinff r. Honor, 1 Vern. 180. 
 
 2 Lord I'xbriilge v. Staveland, 1 Ves. S. 
 56; Storv Eq. I'l. §§ 255, 256, 257. 
 
 3 vVliite V. Sinale, 22 Beav. 72; Clark 
 V. Lord Kivers, L. R. 5 Eq. 91, 95-97; 
 Ponsfovd V. Hankey,3 De G., F. & J. 544; 
 7 .Jur. N. S. 929. 
 
 * Ante, pp. 297-299. 
 
 5 Ante, p. 298. 
 
 6 Ld. lied 158; Story Kq. PI. §§ 178, 
 227, 514; Long v. Majestre, 1 .lohn. Ch. 
 30.J; Elui.slie v. M'Anlay, 3 Pro. C. (J. 
 (Perkins's ed.) 624, note (1), 627, note (a), 
 and cases cited; Eden Injunct. (2d Am. 
 ed.) 364, and cases in note (a).
 
 MATTER OF THE BILL. 
 
 323 
 
 not sue debtor 
 to testator's 
 estate. 
 
 matter of the suit which may be in the hands of a defendant, and Cn. vi. § 4. 
 
 yet, for want of a proper privity between them, the plaintiff may "^ ^^ 
 
 not be the person entitled to call upon the defendant to answer 
 his demand. Thus, though an unsatisfied legatee has an interest Legatee or 
 in the estate of his testator, and a right to have it applied in a due "Editor can- 
 course of administration, yet he has no right to institute a suit 
 against the debtors to his testator's estate for the purpose of com- 
 pelling them to pay their debts in satisfaction of his legacy : ^ 
 for there is no pri\ity between the legatee and the debtors, who 
 are answerable only to the personal representative qf the testator. 
 Upon the same principle, where a bill was filed by the creditors 
 of a person who was one of the residuary legatees of a testator, 
 against the personal representative, for an account of his personal 
 estate, it was held to be impossible to maintain such a bill.^ And 
 so, where a creditor of a testator, who had previously been a 
 bankrupt, and had obtained his certificate, brought a bill against 
 the executor for an account, and made the assignees imder the 
 testator's bankruptcy parties, for the purpose of compelling them 
 to account to the executor for the surplus of the bankrupt's estate, 
 a demuiTcr by the assignees was allowed.^ 
 
 It is to be observed, however, that, in cases of collusion between Exception in 
 the debtor and the executor, or of the insolvency of the executor, fra^ud" 
 bills by creditors or residuary legatees against debtors to a testa^ 
 tor's estate will be entertained ; * and in the case of Barker v. 
 Birch^ which was a bill by universal legatees under a will, for 
 an account against a debtor to the testator's estate. Sir J. L. 
 Knight Bruce V. C, under the circumstances, made a decree for 
 an account, although collusion was not established between the 
 debtor and the personal representative, and there was not any 
 
 1 Bicklv f. Dorrington, cited Ld. Red. 
 158, n. (/("); Barn. 3-.i; 6 Ves. Wj; Monk 
 f. I'oTnfret, cited Ld. Ked. 108, n. (A). 
 
 2 Elioslie V. M'Aulay, 3 Bro. C. C. 624, 
 626. 
 
 3 Utterson v. Mair, 4 Bro. C. C. 270, 
 276; 2 Ves. J. 95, '.t7 ; 6 Ves. 74'J; Bickly 
 r. Uorrin^^on, cited Ld. Hed. 158, n. {h)\, 
 Barn 32; 6 Ves. 749. 
 
 < Ulterson f. Mair, 4 rjro. C. C 270, 
 276; see also Doran i'. Simpson, 4 Ves. 
 651, 665; Al.sa^er v. Kowley, 6 Ves. 748; 
 Troii^liton V. llinkes, ib. 57;J, 575; IJen- 
 field r. S'llomnns, 9 Ves. 86; IJurrowes v. 
 (iore. 6 M. L Ca. 907; 4 Jiir. N. S. 1245; 
 Jerdein r. Uri^lit, 2 .L & H. 325, where 
 the b.ll was lile(l against tiie trustee of 
 a crc'lit'ir's dei'd, niid a purciiaser from 
 him; i'.ouck r. IJnuck, L. li. 2 Kq. 19; 
 1 Mciiil Ivi- I'l. 45, 46, note («); 2 Mont. 
 Iv| I'l. HI; Ld. lied. 15H, 159; Storv 
 K(| I'l § 514, nnl note, §§ 178, 227, 2.t1 
 note; Ivlen Injunct. (2d Am. ed ) 354, and 
 ca-«c» in note ( n)\ Elm»Iie ?;. M'Auhiy, 
 3 Bro. C. C. (Perkins's ed.) 627, note (a.) 
 
 A special case must be made out to author- 
 ize a bill by a creditor aj^ainst an ailmin- 
 istrator of the deceased debtor, and a third 
 person having assets of the deceased, to 
 subject those assets to the payment of his 
 debt; it is not, however, necessary to 
 charge collusion between the ilefendants; 
 it is enough that the third person holds all 
 the property of the deceased undera secret 
 trust in fraud of creditors; insists on re- 
 taining the |)ro))erty to his own use, and 
 that tlie adniinistnitiir has not proceeded 
 iigain-t iiini tor the space of about two 
 years, and resists the bill by relying on 
 thestntute of limitations. Ilaganr. Walk- 
 er, 14 How. U. S. 29, 34, 35; Long f. 
 Majestre, 1 .John. Ch. 306; see Harrison 
 V. Kighter, 3 Sfockt. (N. J.) 389; (loble v. 
 Andross, 1 (Jreen <'li 66. A single crciit- 
 or of an insolvent estate cannot sustain a 
 bill agiiitista debtor of such estate witiidiit 
 joining other parties. Isaacs i;. Clark, 13 
 Vt. 657. 
 6 1 DeG. & S 376; 11 Jur. 881.
 
 324 
 
 THE BILL. 
 
 Cii. VI.§ 4. 
 
 or possossioii 
 of spooiric 
 assets; 
 
 and in cases 
 of partner- 
 ship; 
 
 General alle- 
 gation of 
 fraud insuf- 
 ficient. 
 
 evitleiioc of insolvency on the part of the personal representative, 
 or of his refusal to sue for the debt, other than his omission to 
 institute proceedings for a considerable period.^ 
 
 It seems also, that when persons other than the personal repre- 
 sentative of the testator have possessed s]>ecific assets of the testa- 
 tor, such persons may be made parties to a suit by a creditor."-^ So 
 also, where it is desirable to have the account of the pei'sonal estate 
 entire, a creditor may make the surviving partner of a deceased 
 debtor a defendant to his bill, though no fraud or collusion is al- 
 leged;^ and it seems that a joint creditor may maintain a suit 
 against the rejiresentatives of a deceased })artner, for satisfaction 
 of his entire demand out of the assets, although the surviving part- 
 ner is not alleged to be insolvent, and is made a party to the bill.* 
 In J^oicsher v. WdJa'ns,^ it was determined, that residuary legatees 
 may sustain a bill for an account against the executor and surviving 
 partners of the testator, though collusion between the executor 
 and the surviving partners is neither charged nor proved,® but it 
 must be shown that the executors have neglected their duty of 
 themselves suing.'' 
 
 It seems, that where it is necessary to allege fraud or collusion, 
 a general allegation of it in the bill will not be sufficient to shut 
 out a demurrer ; but that the facts upon which such allegation is 
 founded must be stated, as there is great inconvenience in joining 
 issue upon such a general charge, Avithout giving the defendant a 
 hint of anv fact from which it is to be inferred.^ 
 
 1 See Rolton v. Powell, 14 Besiv. 275; 
 2 De G., M. & G. 1; 16 Jur. 24; Saunders 
 V. Druce, 3 Drew. 140. 
 
 2 Neulatid r. Champion, 1 Ves. S. 105; 
 see also the report of this case, 2 Coll. 46; 
 and see Con-=ett v. Bell, 1 Y. & C. C. C. 
 56y; 6 Jur. 869; Storv Eq. PI. §§ 178,227, 
 514. 
 
 3 JOid. ; see also Gedge v. Traill, 1 R. & 
 M. 281, n ; Story Eq. PI. §§ 167, 178; 
 Long (/•. .M;ijestre, 1 Jolm. Cli. 306; Harri- 
 son V. Kighter, 3 Stockt. (N. J.) 389. 
 
 ■* VVilkin.«on v. Henderson, 1 M. & K. 
 662, 588; Hills v. iM'Hae, 9 H.ire, 297; 15 
 Jur. 766; Slory Kq. I'l. §§ 167, 178. 
 
 5 1 R. & .M."277, 283; see also Law v. 
 Law, 2 (Jull. 41 ; 9 Jur. 745, on appeal, 11 
 Jur. 463; Tnvis v. Milne, 9 Hare, 141; 
 Stainton v. Carron Company, 18 Beav. 
 146; 18 Jur. 137; and see Davie'* v. Davies, 
 2 Keen, 534, and the ohservations of l^ord 
 Langdiile. p 539. on Bowsher o. Watkins. 
 
 6 See Collyer Piirtn. § 366. 
 
 T Stainron v. Carron Company, and 
 Travis v. .Milne. nOi sup. Where an exec- 
 utrix neglected to defend a suit, leave 
 was given to the plaintiff, in a suit for the 
 administration of the estate, to do so in her 
 name. Olding v. Poulter, 23 Beav. 143. 
 
 8 lienfieM v. Solomons, 9 Ves. 86; .Mun- 
 day V. Knight, 3 Hare, 497, and cases cited 
 
 in note, p. 501; 8 Jur. 904; Bothomlev v. 
 Squire, 1 Jur. N. S. 694, V. C. K. ; Mo#s 
 V. Bainbrigge, 3 Jur. N. S. 58, V. C. W.; 
 Gilbert v. Lewis, 1 De G., J. & S. 38, 49, 
 50; 9 Jur. N. S. 187; Kingtrold ?». Stone, 
 20 Ark. 526; Biyan v. Spruill, 4 Jones Eq. 
 (N.C.)27; FarnMmw. Brooki^,9 PiL-k.212; 
 Bull I'. Bull, 2 Root, 476; Elston v IJIan- 
 clianl, 2 Scatn 420; Moore v. Greene, 19 
 How. U. S 69; Small v. Bourlinot, lioudi- 
 not V. Small, 1 Stockt. (N. J.) 381; Ue 
 Louis V. Meek, 2 Greene (Iowa). 55; U'ea- 
 ther-i)0 in v. Carmichael, 6 Ired. Eq. 143; 
 Frazer v. Hoyt, 2 Strobh. Eq. 250; Hard- 
 ing V. Handy, 11 Wheat. 103. If fraud is 
 relied upon, it must be substantially 
 chiirged in thii bill. Crocker v. lli.'siins, 7 
 Conn. 342; IL.g^in v. Burnett, 37 Mi-s. (8 
 George), 617; llnwe!l v. Sebrina: 1 JIc- 
 Carter (.\. J.), 84, 90; Par-onsy. lleston,3 
 Stockt. (N. J.) 150; Siorv Eij. PI. § 28; 
 Grove v. Kentch, 26 Md. 367, 377 In 
 Other V Smurthwaite, L. K. 5 l^q. 437,441, 
 Sir W. Pa^e Wo.-d V. C. (Lord Ilatlier- 
 ley) said: "On behalf of the plaintiff it is 
 said that he is not bound to let the defend- 
 ants know beforehand, or give them any 
 chance of knovving beforehand, what he 
 contemplates proving. But if tli'-re be any 
 one thing more contrary to the course of 
 our proceedings in Equity than another, it
 
 MATTER OF THE BILL. 
 
 325 
 
 Employment 
 of agents or 
 brokers will 
 not destroy 
 privity. 
 
 TVith reference to the subject of privity between the plaintiff Ch. VI. § 4 
 and defendant, it is to be observed, that the employment of agents 
 or brokers in a transaction does not interfei-e with the privity 
 between the princij^als, so as to deprive them of their right to sue 
 each otlier immediately. Thus, where a principal transmits goods 
 to a factor, he may sue the person who buys of the factor ; and 
 where a bill was brought by some merchants against the defend- 
 ant, to discover what quantity of straw hats he had purchased of 
 their agents, and for papnent to them, and not to the agents, a 
 demurrer was overruled : ^ and so, where a merchant, acting upon 
 a dd credere commission, became bankrupt, having sold goods of 
 his principals for which he had not paid them, and, shortly bcfoi-e 
 his bankruptcy, drew bills on the vendees, which he delivered to 
 some of his own creditors to discharge their demands, they know- 
 ing his insolvency, a suit by the principals against the persons who 
 had received the bills, for an account and payment of the produce, 
 was sustained.^ 
 
 A bill must not only show that the plaintiff is entitled to or Bill must 
 interested in the subject-matter of the litigation, and is clothed 
 with such a character as entitles him to maintain the suit, and 
 that the defendant is also liable to the relief sought against him, 
 or is in some manner interested in the dispute, and that there is 
 such a privity between him and the plaintiff as gives the ])laintiff 
 a title to sue him, but it must also pray the Court to grant the 
 proper relief suited to the case, as made by the bill ; * and if, for 
 
 pray proper 
 relief. 
 
 is the takins an opponent by surprise. If I 
 were lo find the defendant tnken by sur- 
 prise. I shoui'l certaiiilv din-ct tlie case to 
 stand over, in order tliat he luiglit have 
 an opportunity of meeting the case made 
 Rgiiinst him. Although it is fraud tiuit is 
 cliaige<l, fraud must be distinct I}' charged 
 iuid pioperly proved. So far from its bt ing 
 the principle that a defendant \^ to be al- 
 JKWt'd to be taken by surpri-e, smd. wiih- 
 out ;my prepiralion, is to t)e called upon 
 to meet s >iiiething which a witness m:iy 
 assert, no'hing is more settled tl an the 
 doctrine thnt when yon charjre fr.iud you 
 must state the facts upon winch you allege 
 fraud, and prove thcni strictlv." See Mc- 
 J/ine !•. .Manning, 1 Wins. (N C.)No. 2 
 (i:.| ) 60. 
 
 1 I.is-ctt V. Keave, 2 Atk. 394. 
 
 2 Neumnn V. (iodfrey, cited Ld. lied. 
 100; 2 H(o. <;.(;. .3.T2; see Story Agency, 
 § 418 ft fffj., § 40.3 ft »(f/-; f.evcrick v. 
 Meigs, 1 C. wen. 04.'., OO-J, 004,00.0; ante, 
 111,''., n. fes; 2 Kent (11th ed.), C22-C2o. 
 Ordinarily, the principal c innot avail him- 
 self, by suit in his own name, of a written 
 contract, made hetween his agent and a 
 third person, m the name of the ugent; for 
 it is treated a* ii conlr;ict mendv between 
 the parlies nameci in it, altlmngh the agent 
 is kn'wn to be ai-ting in tlnif clmr.icter. 
 Tnit'il States r. I'annide. 1 I'aim- <'. C. 
 262: (lurk f. WiJBOn, 3 Wash. C. C. 560;. 
 
 Newcomb «. Clark, 1 Denio, 226; Finney 
 V. Bedford Cm. In-. Co, S Met. 348; 
 Collyer I'artn. (Perkins's ed.) §§ 412, 653; 
 Dunlap's Piilc-v's Agencv, 324, note; Harp 
 V. Osgood, 2 H'ill, 210; Chitty's Contr (^th 
 Am. ed ) 207, in note. 'I here are, how- 
 ever, exceptions to this rule, as well estab- 
 lisbeil as the rule itself. As in case of a 
 written contract by a factor in his own 
 name fi>r the purchMse or sale of poods for 
 his j.rincipal. So in case of a |)olicy of 
 iiisurnnce procured by an ;igent in his own 
 name for the benefit of his principal, the 
 agent, as well as the principd, may sue 
 thereon. See Story Agencv, §§ 160, 161, 
 162, 418 et seq , §§"270, 272; Brewster v. 
 Lnnf, 8 Louis. 2<J6. 
 
 3 Story K(i. IM. §§ 40, 41, 42. The 
 priyer of a bill in Chancery is an essen- 
 tial part, and without its insertion no 
 decree can be rendered for a plaintiff. 
 Driver v. Talner, 5 Porter, 10; see Smith 
 V. Smitli, 4 liand. It.'.; see aho pngl, " The 
 Prayer fur Uelief," in this chapter. If tlia 
 plnintiff prays for relief in a certain ca- 
 j)acity, this will be a test of the ground 
 on which he seeks the aid of the Court. 
 Snyles v. Tibbitts. 6 K. I. 79. If the 
 allegiitions of a l)ill refer to the condition 
 of things lit the time the bill is filed, flic 
 relief all'orded must be litniled to (hat st:ito 
 of facts. Wiiniipiseogee Lake Comjiany 
 V. Young, 40 N. U. 420.
 
 320 
 
 THE BlLTi. 
 
 I'll. VI. 5 4. 
 
 Statutory 
 provision as 
 to prayer. 
 
 Other requi- 
 sites to bills : 
 
 Everj'thing 
 to he proved 
 must be 
 stated. 
 
 any reason founded on the sul>stanoc of the case as stated in tlic 
 bill, the ])laintiff is not entitled to the relief he prays, either in 
 the whole or in }tart, the defendant may deniin-. In some of the 
 most ancient bills, as appears by the records, the plaintiff does not 
 expressly ask any relief, nor any process, but prays the Chancc^llor 
 to send for the defendant and to examine him ; in others, where 
 relief is prayed, the prayer of process is various : sometimes a 
 /labcds cof-jnis cum causa, sometimes a siihpcena, and sometimes 
 •other writs.^ Afterwards, the bill apjiears to have assumed a 
 more regular form, and not only to have prayed the subpoena of 
 the Court, but also suitable relief adapted to the case contained in 
 the statement: ^ which is the general form of all bills in modern 
 use ; except, that, since the late Act, the pi-ayer for stihpcena is 
 omitted. But although it was the general practice, previously to 
 the late Aqt, in all cases where relief was sought, to specify par- 
 ticularly the nature of such relief, yet, it seems that such special 
 prayer w\as not absolutely necessary, and that praying general 
 relief was sufficient ; ^ and, in Partridge v. Haycraft,'^ Lord Eldon 
 said, that he had seen a bill with a simple prayer that the defend- 
 ant might answer all the matters aforesaid, and then the general 
 prayer for relief. 
 
 By the Act to amend the practice of the Court of Chancery it 
 is now 25rovided, that the plaintiff shall pray specifically for the 
 relief which he may conceive himself entitled to, and also for 
 general relief.^ 
 
 The requisites above set out are necessary in every bill which 
 is filed in a Court of Equity for the purpose of obtaining relief. 
 There are other requisites appertaining to bills adapted to particu- 
 lar ])urposes, which will be hereafter pointed out, as well as those 
 distinctive properties which belong to bills not filed for the 
 puri)oses of relief. But besides those points which are generally 
 necessary to be attended to in the frame of all bills, as each case 
 must depend upon its own particular circumstances, matters must 
 be introduced into every bill Avhich will occasion it to differ from 
 others, but which it is impossible to reduce under any genei-al 
 rules, and must be left to the discretion of the draftsman. Care, 
 how^ever, must be taken in framing the bill that every thing which 
 is intended to be proved be stated upon the face of it : otherwise, 
 evidence cannot be admitted to prove it.® This is required, in 
 
 1 Jud. Auth. M. R. 91, 92; see 1 Spence 
 Eq. Jur. 308 tt ten. 
 
 2 Jud. Auth. M. R. 91, 92; .see 1 Spence 
 Eq. Jur. 3GS et seij. 
 
 8 Cook V. .Martyn, 2 Atk. 3 ; Grimes v. 
 French, ib. 141. 
 4 11 Ves. .574. 
 6 1-5 & 16 Vic. c. 86, § 10. 
 
 6 Gordon v. Gordon, 3 Swanst. 472; 
 Miller v. Colton, 5 Geo. 341; Parker v. 
 Beavans, 19 Texas, 406; Bailey v. liyder, 
 10 N. Y. 363; Rowan v. Bowles, 21 III. 17; 
 Laud V. f'owiin, 19 Ala. 297; Chatfin v. 
 Kimball, 23 III. 36; The Camden and 
 Amboy R.R. Co. v. Stewart, 4 C. E. 
 Green (N. J.), 343; Hewett ». Adams, 50
 
 MATTEK OF THE BILL. 
 
 327 
 
 order that the defendant may be aware of what the nature of the Ch. VI. § i. 
 case to be made against him is. The necessity of obser-sing this '■— y • —' 
 rule was strongly insisted on by the L. C. B. Richards, in the case 
 of Sail V. Jlcdtby} And in Montesquieic v. Sandys,^ the principle 
 upon which it is founded is strongly illustrated ; in that case, a 
 bill was filed to set aside a contract entered into by an attoi-ney 
 for the purchase of a reversionary interest from his client, on the 
 ground of fraud and misrepresentation ; the evidence adduced in 
 support of the allegation of fraud, did not, in Lord Eldon's opinion? 
 substantiate the case as laid in the bill : a transaction, however, 
 was disclosed in the evidence which his Lordship appeared to 
 think would haA^e raised 5, question of considerable importance 
 in favor of the plaintiff, if it had been properly represented ujDon 
 the pleadings; but as it had not been stated in the bill, he 
 thought it would be far too much to give relief upon circum- 
 stances which were not made a ground of complaint upon the 
 record. 
 
 It is to be observed in this place, that not only will it be im- inquiry not 
 possible to introduce evidence as to facts which are not put in ''"'ccted 
 
 f . ... unless ground 
 
 issue by the bill, but that even an inquiry will not be directed, laid for it in 
 unless ground for such inquiry is laid in the pleadings.^ Thus, * i*^ P <^'*""ff*- 
 where a bill was filed for a foreclosure, and a motion was made for 
 a reference to the Master, under the 7th Geo. 11. c. 20, to inquire 
 into the amount due u]Km the mortgage, and it was insisted that 
 the Master ought to be directed to take an account of the costs 
 
 Maine, 271, 276 ; Storj' Eq. PI. § 24 ; Lovell 
 V. Farrinpton, 50 Maine, 239; Asliton v. 
 Atlantic Hank. 3 AIIimi, 217; Howell v. 
 Selirincr, 1 McCarter (N. J.), 8-1; BiKlger 
 «. 15;wlger,2 Wallace U. S. 87. No facts 
 are properly in issue, unl''?R charged in the 
 bill ; and of course no proofs can generally 
 be offered of fiicts not in the Mil; nor can 
 relief he granted for matters not charged, 
 altliough iliev may lie ap()!ireiit fiom otlier 
 parts of the pleadings and evidence; for 
 the (,'ourt pronounces its dccisiou secutidiiiii 
 aUeyilu et pntb'iUi. Story Kq. PI. § 2'>7; 
 Crocket v. Lee, 7 Wheat .522; .Jackson 
 r. Asliton, 11 I'eters, 22'J; .lames v. Mc- 
 Kernon, 'i .lohti. .'j'i4; IJ.irraqiie v. Manual, 
 2 Kng. 510; Clialliu r. Kimljall, supra. 
 A trustee is not to he held for aiiv nef;lcct 
 or breach of duty, which is not cfiarged in 
 the hill. Page v. Olcott, 28 Vt. 4ti5. Hut 
 the plaintitr ne<!(l not, and indeed -Jiould 
 not, state in the hill any matters, of which 
 tlie ( 'ourt is hound judicially to take notice, 
 or is supjiosed to possess full knowledire. 
 Many ol these matters are enuiiiera'ed hy 
 Mr. JuMice Story, in Story i;f|. I'l. § 24. 
 So alfto by Mr. dreeideaf, in his work on 
 Evidence, vol. 1, §§ 4, 5, 6. Fn a bill to 
 restrain an infringement of a patent, an 
 express averment of the novelty of the 
 invention protected hy the patent is not 
 necessary. Amory v. brown, L. It. 8 Eq. 
 
 663. The allegation of the gr:uit and pro- 
 duction of the letters-patent throw upon 
 the defendant the onus of disputing the 
 novelty. The ohjection tl'at the invention 
 was not novel is one that the dofen'lant 
 should have raised bj' his answer, in which 
 it was open to him to deny the novelty of 
 the invention. Amory v. Hrown, suprn. 
 It is no longer necessary to charge the evi- 
 dence relied on, excejit for the purpose of 
 procuring' admissions, per Sir W V. Wood 
 V. C, Mansell v. Keeney, 2 .1. & 11. 313, 
 318. A hill should not set out the evidence, 
 whether oral or written, by which the 
 facts are to be proved. The ( 'amden and 
 Amboy K li. Co v. Stewart, 4 C E. 
 Creen (N..I.), 343; Wiiiehreiuier y. Colder, 
 43 Penn. St. 244. 
 
 1 6 Pri. 240, '259. 
 
 •■2 18 Ves. 3(12, 314; see al.so Powys v. 
 Mansfield, C Sim. 565. 
 
 y Ilolloway V. Millard, 1 Mad. 414. 421; 
 Scarf w. Soufhy, 1 M'X. & (J. 364,375; see, 
 however, IJaker v. Pradlev. 7 De (i.. M. & 
 a. 697; 2 .Iiir. N. S. 99;"2 Sm. iS: (J. 531; 
 1 .lur. N. .S. 489; anil pee, for cases where 
 inquiries have been directed on sugges- 
 tions in answer, M'Mahon v. liurchell, 2 
 Phil. 127, 132; r.arrett v. Stockton and 
 l>arliiigton Kailw.'iv ('<;iiipaiiv, 1 11. L. Ca. 
 34; 11 CI. ^ F. 590.
 
 328 
 
 THE BILL. 
 
 On. TI. 5 4. 
 
 WluTO case of 
 t'raiul inado. 
 n^lii't only 
 jiraiiteil on 
 Unit cii:;e. 
 
 Bill must he 
 tor adequate 
 value ; 
 
 incurred by the ])l:unti{l'in ccM-tain proceedings in an ejectment at 
 Law Avluch -were not alluded to in the bill, the Court held that no 
 such iiKiuiry cotdd be directed, but gave the plaintitf leave to 
 amend his bill in that res|)ect.^ 
 
 It is, moreover, an established doctrine of the Court, that where 
 the bill sets u]) a case of actual fraud, and makes that the ground 
 of the prayer for relief, the j^laintiif is not, in general, entitled to 
 a decree by establishing son\e one or more of the facts, quite 
 iudejjendent of fraud, but which might of themselves create a case 
 under a distinct liead of Equity from that which would be a])plica- 
 ble to the case of fraud, originally stated.^ 
 
 It is right liere to observe that, independently of the qualities 
 which have been above pointed out as necessary to bills in general, 
 it is requisite that the object for which a bill is brought should 
 not be beneath the dignity of the Court: for the Court of 
 Chancery Avill not entertain a suit where the subject-matter of the 
 litigation is under the value of 101. ;^ except in cases of charities,* 
 
 1 Millard v. Mngor, 3 Mad. 433. 
 
 2 T'riee v. Berrington, 3 M'N. & G. 486; 
 15 Jur. 999; M;icfiuire v. O'Keilly, 3 Jo- & 
 I. at. 224; Feriaby v. Holisoii, 2 Phil. 255, 
 258; Gla-cott v. Lantr. ib. 31(1, 322; Wilde 
 V. Gibs, n, 1 H. L. Ca. 605; Supd. Law 
 Prop. 632 ; Kaker v. Rradlev, nbi sup. ; 
 Burde't V. Hay, 11 L. T N. S. 259. L. C; 
 Till iif^liast i\ CiiMiriplin, 4 K. L 173; 
 Mount Vernon Bank v. Stnne, 2 R. I. 129; 
 Masterson v. Finnepan, ib. 316. The rule 
 applies only where actual or moral, as dis- 
 t;n{iui-hed" from constructive fraud, is 
 charged; but it is sufficient tlr.it such 
 actual or mnral fraud is sub-tnntially 
 charg. d, whether the word fraudulent l)e 
 used or not. Tdlii'ghast ti. Chnn|ilin. nbi 
 supra; see Grove v I'entch, 26 Md. 367, 
 377. The facts and circumstances of the 
 a;leeed fraud slu-uld be set forth. Castle v. 
 Bader,23 Cal. 75. 
 
 3 The true ground of tins rule is, that 
 the entertainment of sui's of small value 
 lias a tendency, not only to piomote ex- 
 pensive and mis<diiev()us liti^ration, but 
 al>o to consume the time of the Court in 
 uiiimportaiit and frivolous contrnversie'^, 
 to the manifest injury of other sutors, and 
 to the subversion of the public policj' of 
 the land. Moore v. Lytlle, 4 .Jdlin. Ch. 
 183; Story Kq. PI. § 500; Swede~borongh 
 Church f."Sliivers, 1 C. K. Green (N. .1.), 
 453,458. This rule seems to have been 
 of great antiquity in the Court of Chan- 
 cery. See Story Eq. I'l. § 501, and cases 
 cited. A sindhir rule, it is aiiprehended, 
 prevails in the tJourts of Ki|uity in Ameriia, 
 so far as they have been called upon to ex- 
 press anv opiiiion on the subj.ct. Story 
 Eq. PI § 502; see Williams r. Berry, 3 
 Stew. & P. 284; Swed« sb^r^ugh Church v 
 Shivers. 1 C. E. Gre.-n ( N. J ). 453. It was 
 formerly held m New Votk that the Court 
 of Chancery would not take cognizance 
 
 of a ca«e where the amount in controversy 
 was below 10/. sterling. Moore v. Lyttle, 
 4 John. Ch. 185; Fullerton v. .lacksoii, 5 
 John. Ch. 276. The anmunt was aiter- 
 wnrds increased in that State l)y .'tatute to 
 the sum of one hundred dollars; 2 Rev. 
 Stilts. New York, 173, § 37; see Vreden- 
 burg i!. Johnson, 1 IIo])k. 112; Mitchell v. 
 Tighe, 1 Ilopk. 119; Smets v. Williams, 
 4 I'aigf". 364. No such statute exists in 
 Massachuse'ts, but a similMr princi|)le is 
 applied. Cummiiigs v. Barrett, 10 Cush. 
 190. The value of the matter in dispute 
 should appear bv the record. Watson v. 
 WelU, 5 Conn. "468. But a bill for the 
 specific perfiirmance of a contract lo con- 
 vey land iieed not contain an averment 
 that the vaUie of the land exceeds $100. 
 Church V. Ide, 1 Clarke, 494. The juris- 
 diction of the (yourt does not, however, de- 
 pend upon the amount that tnay ultimate- 
 ly be found due to the plaintff', but upon 
 the claim stated bv him. Bradt v. Kirk- 
 j)atrick, 7 I'aiire, 62; W'utecottoii » Simp- 
 son, 4 J. J. Mar-h. 12; Judd v. Bushnell, 
 
 7 Conn. 205; Skinner v. Biilev, 7 Conn. 
 496; Wheat r. Gridin, 4 Dav, 419; Douw 
 V Slield<^n, 2 l'ai£fe,323; Bailej' ?;. Burton, 
 
 8 Wend. 395. These provisions seem to 
 aprdy, however, only to ca^es of bills for 
 relief, and not to case'^ of bills for disaiwry 
 meielr. Goldej' v. Becker, 1 Edw. Ch. 
 271; Sclirwi)|iel tJ. Kcdfield, 5 I'aige. 245. 
 
 At the piesent time, ill New York, there 
 is no limitation to the amount in contro- 
 ver-y recpiired to give juri-diction in ac- 
 tions of an equitable nature, the same 
 having been abolished by construction of 
 the Constiiution of 1846, and the code of 
 piocednr-. Sarsfield v. Van Vaughner, 
 15 Al). I'r. 65. 
 
 * Parmt v. Paulet, Cary, 103; Anon., 1 
 Eq. Ca. Ab. 75, margin.
 
 MATTER OF THE BILL. 
 
 329 
 
 or of frnufl,^ or of bills to establish a general right, as in the 
 case of tithes,^ or other special circumstances.^ It is said, that 
 the Court will not entertain a bill for land under the yearly value 
 of 40s.;* but instances occur in the books where bills have been 
 entertained for the recovery of ancient quit-rents, though very 
 small, viz., 2s. or 35. per annum.^ It seems, that if a bill is 
 brought for a demand Avhich, by the rule of the Court, cannot be 
 sued for, the defendant may either demur to it, on the ground 
 that the plaintift''s demand, if true, is not sufficient for the Court 
 to ground a decree upon,® or he may (which is the most usual 
 course) move to have the bill dismissed, as below the dignity of 
 the Court.^ But even if the defendant should take neither of 
 these courses, yet, when the cause comes to a hearing, if it appears 
 that, on an account taken, the balance due to the plaintiff will 
 not amount to the sum of lOL, the Court will dismiss the bill.^ 
 Thus, where, upon a bill being brought relating to tithes, it was 
 clearly admitted that the plaintiff had a right to some tithes of the 
 defendant, but the tithes which were due appeared to be only of 
 the value of 5?., Lord Harcourt dismissed the bill at the hearing ; * 
 and in Brace v. 2h)/Io)',^° a similar objection was taken, at the 
 hearing, and allowed." But in Beckett v. Bilbrough,^'^ the suit 
 was held to be sustainable, although the sum recovered was only 
 9?., on the gi-ound that the plaintiff, when he filed his bill, must 
 have been justified in supposing that a larger sum would be re- 
 covered ; and the defendant, who knew the amount, had not given 
 any intbrmation respecting it.^' 
 
 Ch. VI. § 4. 
 
 otherwise, 
 defendant 
 may demur, 
 or move to 
 dismiss ; 
 
 1 Bnnl>. 17. n. 
 
 2 Griflith v. Lewi", 2 Bro. P. C. ed. 
 Toml. 407. If a suit have no other object 
 than the mere recovery of a sum of SI. 75, 
 the liillwill be disnii'^seil ; hut if it seeks 
 to estahhsh ii rijrht of a pt'nnanent sind 
 va)u>ihle nature, it falls within the recop- 
 nized exceptions to tlie (renenil i)nnci[)le, 
 and the Omrt will innintain jurisdiction. 
 Swede-horoiifjl) Cliiirch v. Sliivers. 1 (J. 
 K. (ire. n (N. .1.), 453, 458; Story Eq. Pi. 
 §§ .'■.on. r.dl. 
 
 8 Or.l IX.l. InSentonr. Grant, r,. R. 2 
 rii. A p. 45!), 4133. Lord .lusfice Turner 
 (laid: " Atio'her ohirc'ion that li:is hecn 
 taken i« the- insifnilicance of tlie plaintiirg 
 ii,t<-rest in the suhj ct-niattir ol tlic suit. 
 lie is, how<'vpr, su n<i on lu-jinlf of liiin^elf 
 and iIk'oiIkt ><lmr.ho|dcT- ol the company, 
 and I am not prepared to siiy that the 
 f)rdinMry ride as to suits for a "uhject-mnt- 
 tr-r of li'ys value than 10/., applies to a case 
 of this kind." 
 
 * 1 K<|. (Ja. All. 75, margin; Almy v. 
 I'vcroft. rarv, 103. 
 
 "6 Cockx v. Folev, 1 Vern. 359. 
 
 « I'ox V. Krost.Hep t. Finch, 253. 
 
 T Mo*. 47, 356; l?uidj. 17; .Swedes- 
 borounh (!huri-li v. Shiver.-t, 1 C. K. Green 
 (N. J.), 463, 457. 
 
 or bill maybe 
 dismissed at 
 the hearing. 
 
 8 Coop. Fq. PI. 166; Swedesborongh 
 Church V Shivers, 1 C. E. Green (N. J.), 
 453, 457. 
 
 9 Cited 2 Atk. 253. 
 
 10 2 Atk. 253. 
 
 11 "If it appears on the f^ice of the bill, 
 that the matter in dispute, exclu^ivp of 
 costs, does I'ot exceed the amount to vvliich 
 the Jurisdiction of the Court i-; limited, the 
 defendant may either demur, or move to 
 have the bill (iisniis-eii with costs; or if it 
 does not appear on the face of the bill, it 
 mav be ple;ided in bar of the suit. Smets 
 r. William*. 4 Piiifje, 364; McEhviiin v. 
 Willis, 3 Paice, 505: S V. on iipppiil. 9 
 Wend. 548; Scbroniipel v. Redfield 5 Piiifro, 
 245; Hrndtr. Kirkpatrick, 7 l'aifre.62. By 
 " exclusive of costs," iibove, is mennt the 
 frw/.i of the suit in Chancerv. Van Tyne 
 V Bunco, 1 Kdw. t'h. 5(-3. 
 
 12 K lliire. 1H8; 14 .Tur. 238. 
 
 l« In Smith v Matthews, M. B. 2 .Tuly, 
 1859, the nsuiil decree was made to lulniin- 
 istcr real and personal estate on a bill liy a 
 creditor, suin^c on bclialf ol nil the creditorB 
 of the deceased debtor; thonirh liis indi- 
 vidual debt, as alle{,'e<l in the bill, was 
 under &/.
 
 nnr\ 
 
 THE RILL. 
 
 Cu. VI. 5 4. 
 
 Not for one of 
 two claims 
 upon same 
 defendant, 
 
 or in respect 
 of one of two 
 mortgages, 
 
 or where 
 mortgage and 
 bond. 
 
 A bill must not only be for a subject which it is consistent with 
 the (li<vnity ot'the Court to entertain, but it must also be brou<rht 
 for the whole subject. Tlie Court will not ]iennit a bill to 1)C 
 brought for ])art of a matter only,^ so as to expose a defendant 
 to be liarasscd by repeated litigations concerning the same thing; 
 it, therefore, as a general rule, requires that every bill shall be so 
 framed as to afford ground for such a decision upon the whole 
 matter, at one and the same time, as may, as far as possible, 
 prevent future litigation concerning it. It is upon this principle 
 that the Court acts, in requiring in every case, with such excep- 
 tions as we have noticed above, the presence, either as ]>laintiffs 
 or defendants, of all parties interested in the object of the suit. 
 And upon the same principle, it will not allow a plaintiff who has 
 two distinct claims iipon the same defendant, or to which the same 
 defendant may eventually prove liable, to bring separate bills for 
 each particular claim, or to bring a bill for one and omit the 
 other, so as to leave the other to be the subject of future litiga- 
 tion.^ Thus, in Pxirefoy v. Purefoy,^ where an heir, by his bill, 
 prayed an account against a trustee of two seA^eral estates, that 
 were conveyed to him for several and distinct debts, and after- 
 wards would have had his bill dismissed as to one of the estates : 
 and have had the account taken as to the other only, the Court 
 decided that an entire account should be taken of both estates : 
 "for that it is allowed as a good cause of demurrer in this Court, 
 that a bill is brought for part of a matter only, Avhich is proper 
 for one entire account, because the plaintiff shall not s])lit causes 
 and make a multiplicity of suits." And so, Avhere there are two 
 mortgages, and more money has been lent upon one of them than 
 the estate is worth, the heir of the mortgagor cannot elect to 
 redeem one and leave the heavier mortgage unredeemed, but shall 
 be compelled to take both.* Upon the same principle it is held, 
 that "where there is a debt secured by mortgage, and also a 
 bond debt : when the heir of the mortgagor comes to redeem, he 
 shall not redeem the mortgage without paying the bond debt too, 
 
 1 L(l. Red. 183. 
 
 2 Story Eq. PI. § 287. So, at Law, a 
 plainti(f cannot split an entire cause of 
 action, so as to maintain two suits upon it, 
 without the defendant's consent. If lie 
 attem])ts so to do, a recover}' in the first 
 suit, though for less than the whole de- 
 mand, is a bar to the second. Ingruliam 
 V. Hall, 11 Serg. & K. 78; Crips v. Tal- 
 vande, 4 MT'ord, 20; Smith «. .lones, 16 
 John. 22'J; Wilhirdf. Sperry, 16 John. 121; 
 Avery v. Fitch, 4 d.nn. .362; Vance v. 
 Lancaster, 3 Hayw. 130; Colvin v. C'orwin, 
 15 Wend. 557; Strike's case, 1 IJland, 
 95; James v. Lawrence, 7 Har. & J. 73; 
 Stevens v. Lockwood, 13 Wend. 644; see 
 
 also Guernsey v. Carver, 8 Wend. 492, and 
 the remarks on it in Badger ». riteonib, 15 
 rick. 415. In tliis last case it was said tli it 
 " as the law is, we think itcainiot be main- 
 tained, that a ruimintr account for goods 
 sold and delivered, money lotined, or money 
 had and received, at different times, will 
 constitute an entire demand, unless there 
 is some agreement to that eflect, or some 
 usa<;e or course of dealing from which 
 such an agreement or understanding may 
 be inferred." 
 
 8 1 Vern. 29. 
 
 * Jbid. ; Margrave v. Le Hooke, 2 Vern. 
 207.
 
 MATTER OF THE BILL. ' 331 
 
 in case the heir be boimd." ^ The ground of this rule is the Cn. VI. § 4. 
 prevention of circuity of remedy : for, as the bond of the ances- ' f ^ 
 tor, where the heir is bound, becomes, upon the death of such 
 ancestor, the heir's own debt, and is payable out of the real 
 estate descended, it is but reasonable that, where the heir comes to 
 redeem the estate by payment of the principal money and interest, 
 he should at the same time be called upon to pay oiF the bond : as 
 other^vise, the obligee would be driven to sue him for the recovery 
 of the bond, which in the result might be payable out of the same 
 property that the heir has redeemed. 
 
 When it is laid down as a rule, that the Court will not entertain Limitation of 
 a suit for part of a matter, it must be imderstood as subject to this ^here matter 
 limitation, viz., that the whole matter is capable of being immedi- [^PfjJ,'^®j^°^ 
 ately disposed of; ^ for if the situation of the property in dispute decision, 
 is such, that no immediate decision upon the whole matter can be 
 come to, the Court will frequently lend its assistance to the extent 
 which the actual state of the case, as it exists at the time of filing 
 the bill, will warrant. Upon this principle Courts of Equity act, 
 in permitting bills for the preservation of evidence in perpetuam 
 rex wemoriam : which it does upon the ground that, from the cir- 
 cumstances of the parties, the case cannot be immediately the sub- 
 ject of judicial investigation; and if it should appear iipon the bill, 
 that the matter to which the required testimony is alleged to relate 
 can be immediately decided upon, and that the witnesses are resi- 
 dent in England, a demun-er would hold.^ It is upon the same 
 principle that the Court proceeds, in that class of cases in which 
 it acts as ancillary to the jurisdiction of other Courts, by permit- 
 ting suits for the preservation of property pending litigation in 
 such Courts ; or by removing the impediments to a fair litigation 
 before tribunals of ordinary jurisdiction. In all these cases, it is 
 no ground of objection to a bill that it embraces only part of the 
 matter, and that the residue is, or may be, the subject of litigation 
 elsewhere. The ])reservation of the property, or the removal of the 
 impediments, is all that the Court of Equity can effect ; the bill, 
 theref<ire, in seeking this description of relief, seeks the whole re- 
 lief which, in such cases, a Court of E(iuity can give; but if a bill, 
 praying only this description of relief, should disclose a case in 
 
 1 Shnttleworth «. Laycock, 1 Vem. 245; times, is divisiblo initsnnture; and that 
 Anon., 2 Ch. (Ju. 1*!4; and see .lones «. an action will lie for the breach of any one 
 Smith, 2 Ves. .1. 370; see al«o Klvy v. of the stipulations, each of these stipula- 
 Norwood. 5 I)e G. & S. 240; 16 .lur. 49.3; tions bein^ considered as a sepanite con- 
 Sincliiir r. .Jackson, 17 Beiiv. 405; Kistier tract. Bailmr r. Titcomb, 15 Tick. 414. 
 on MortKaK", 3hl ; '2 Story Kq. .Jur. § 1023, a \A. Hed. 150; see 8tory Kq. I'l. § 303, 
 note; .lont-H r. Smith. 2 Sumner's Ves. and note; Moodehiy r. Morton, 1 Hro. C. 
 872. n. (c) and cases cited; Lee v. Stone, f. (Perkins's ed.) 40<t. nnd notes; jtost, 
 1 Gill & .1. 1. ("hap. XXXIV. § 4, Hilts to j)erj>et>iate Tt»- 
 
 2 The principle is well established, that timony. 
 a contract to do several things at several
 
 332 
 
 THE BILL. 
 
 Cii. \1. § 4. 
 
 \Vlu>thor bills 
 ran be siis- 
 taiiied tor 
 partnersbip 
 accounts, 
 without 
 seeking 
 dissolution. 
 
 Avliich a Court of Equity is cnpnble of tal<in£X upon itself tlic whole 
 (locisiou of the question: in such a ease, it is ai)])rehen(led, thel)ill 
 would be defective, in not seeking the relief Avlueh the plaintiff is 
 entitled to. 
 
 With referenee to this part of the subject may be noticed the 
 much litigated question, to what extent a person engaged in trade 
 in copartnership can have relief in Equity against his partners, 
 without jiraying a dissolution of the partnership ; u])on this point 
 the decisions were very conflicting.^ In l^^orman v. JTomfray^ 
 Lord p]ldon said he did not recollect an instance of a bill filed by 
 one ]>artner against another, praying the account merely, and not a 
 dissolution : proceeding on the foundation that the partnershij) was 
 to continue ; and observed upon the inconvenience that would re- 
 sidt if a partner could come here for an account merely, pending 
 the partnership, as there seems to be nothing to j)revent his com- 
 ing annually ; ^ and in Loscombe v. Hussell,* Sir Lancelot Shadwell 
 V. C. allowed a demurrer to a bill praying the account of a partner- 
 ship, because it did not pray for a dissolution. In JIarrison v. 
 Armitagc^ however, a contrary opinion was ex]iressed by Sir John 
 Leach V. C. ; and in liichards v. Davies,^ which was a bill by one 
 partner against another, praying for an account of what was due to 
 the ]ilaintiff respecting ]>ast partnership transactions, and that the 
 partnership might be carried on under the decree of the Court, Ilis 
 Honor decreed an account of past partnership transactions, but 
 said that he could make no order for carrying on the paitnership 
 concerns, unless with a view to a dissolution. In pronouncing his 
 judgment upon that case, the learned Judge observed, that a part- 
 ner, during the partnershiji, has no relief at Law for moneys due to 
 him on a partnership account ; and that, if a Court of Equity re- 
 fuses him relief, he is wholly without remedy: which would be con- 
 
 1 In I Story Eq. Jur. § 671, Mr. .Justice 
 Story says: " Courts of Equity may, per- 
 }iaps, iiiierpose aid decree an account 
 where a dis^nlution of pavtnevship bas not 
 taken place, nri'l is ni'ta>ked for; although, 
 ordinarily, they are not inclined to (le^■r^•e 
 an account, nn'ess under special circnm- 
 stani-e*, if there is not iin actual or con- 
 teuipla'ed lii-solution, so that all tlie affairs 
 of the parlnersliip may be wound np." 
 See al-io ihe cases cited in the note at the 
 place a'lovi^ ci'ed, and Waters v. Ta\lDr, 
 15 Sumner's V'es. 10, note (h) and ctises 
 ci'ed; .lud I v. Wilson, 6 Vt 185; 1 Smith 
 Ch Pr. (2d Am. ed.) &9; CoIIver I'artn. 
 (Perkins's ed ) §§ 299, SOU, 11'2H to 11:53. 
 
 2 2 V. & B. 329; and see Marshall v. 
 Colman, 2 J. & W. 2e8; Lindiey Partn. 
 752. 
 
 3 It is said by one of the learned report- 
 ers, in II note "to 2 V. & B. 330. that, in 
 the case of thea'res, iln- (,'ourt lia'^ refused 
 to take jurisdiction upon any other princi- 
 
 ple than a dissolution of partnersbip. 
 Waters v. Taylor, 15 Yes. 10. Hut it is to 
 be observed, that theatres are property' of 
 a very pecul'ar description, and tliat :tny 
 interlerence vuth the manipement of them 
 by the Court ni gbt be productive of irre- 
 parable damage and ruin to the parties 
 concerned, anil that it is upon this principle 
 that, in Wafers v. Taylor, the Court hesi- 
 tated to interfere durin^^ the existence of 
 the partnership; see 15 Ves. 20. It was 
 said by the Soliciior-tJeneral. (irr/vcntlu in 
 Loscombe v. Hussell, that it appeared from 
 the brief in Forman v. lIomfr;iy. that the 
 plaintiff there ])rayed tor an account, which 
 was to be continued until the end of the 
 term of the partMershi|). 4 Sim. 9. 
 
 4 4 Sim. 8, 10. 
 
 fi 4 Mad. 143, cited in Loscombe v. Rus- 
 sell, ubi sup. 
 
 8 2 li. & M. 347; and see observations 
 of Lord CottenI am in VViilworth v. licit, 4 
 M. & C. 639, ante, pp. 234, 235.
 
 MATTER OF THE BILL. 
 
 333 
 
 trary to the plain principles of justice, and cannot be the doctrine 
 of equity. With respect to the objection that the defendant might 
 be vexed by a new bill, whenever new profits accrued, His Honor 
 said : " What right has the defendant to complain of such new bill, 
 if he repeats the injustice of withholding what is due to the plain- 
 tiff? Would not the same objection lie in a suit for tithes, which 
 accrue de-anno in annum f " It is to be observed, that in the last 
 quoted case of Richards v. Davies, the case of Chappie v. Cadell ^ 
 was cited in argument, and is referred to by the reporters as an 
 authority for the position that a diecree may be made for partner- 
 ship accounts without the bill having prayed a dissolution ; but, 
 upon reference to the case itself, it will be found that it was one of 
 a very peculiar nature, and that the principal object of the suit 
 was, not an account of the j^artnership transactions, but, to have a 
 declaration as to the effect of a sale of some shares in a partnership 
 undertaking (the Globe newspaper) ; and that the account of the 
 profits AvhicK was decreed was merely the consequence of the dec- 
 laration of the Court upon that j)oint. The same observation 
 applies to luiowles v. Humjhton^^ Avliich is also referred to in llicli- 
 ards \. Davies :^ there, the bill was tiled to establish a partnership 
 in certain transactions, and the sole question in the case was, part- 
 nersliip or no partnership ; and the Court being of opinion that a 
 partnership did exist in part of the transactions referred to, as a 
 necessary consequence decreed an account of these transactions. 
 
 In Eoberts v. Eherhardt,^ Sir W. P. Wood V. C. said : " It is 
 certainly not the ordinary practice of this Coui't to direct an ac- 
 count between partners, except upon a bill for the dissolution of 
 the partnership concern. It is true that it is not now necessary 
 to ask for a dissolution in every case in which relief is sought 
 respecting partnership affairs; but I apprehend that when a bill 
 seeks an account, that is one of the cases in which a dissolution 
 must be prayed ; unless some special ground is raised the general 
 accounts cannot be taken, without asking for the dissolution of the 
 firm." It i.s conceived that it is now settled that, where the gen- 
 eral accounts of the partnership are sought, the bill must pray for 
 a dissoluti<m, excejtt in special cases; but that there are cases in 
 which the C<nirt will inter[)Ose, to support as well as to dissolve a 
 partnership : as by appointing a receiver, where the conduct of the 
 defendant is such as to endanger the existence of the partnership 
 concern.'' 
 
 In endeavoring to avoid the error of making a l)ill not .sulli- 
 
 Cii. TL § 4. 
 
 1 .Fac. 0.37. 
 
 2 11 Ves. 168. 
 
 8 -2 |{. & M. 347. 
 < Knv, 14H, 15H. 
 
 « Kairtliorne v. Weston, 3 Hurc, 387, 39 1 ; 
 8 Jur. 353; Hall v. Hull, 3 M'N. & U. 71), 
 
 83; 15 Jur. 3(j3, and cn^es cited in note to 
 S. C. 1'.2 Hunv. 4rj; U:iil-y r. \\w IJirkcMi- 
 luMil Kaiiway C.'oinpaiiy," iU. 4:5;), 41(); 6 
 liail. Ca. 'Ih^; 14 .lur. ll!i; t'r<i|)|icr v. 
 Coliurii, 2 (Jurlis, C. C. 465, 473 ; Uilliiiin- 
 80II V. Haycock, 11 Iowa (3 With.), 40. 
 
 Where the 
 general ac- 
 counts of the 
 partnership 
 are sought, 
 bill must pray 
 a dissolution. 
 
 Multifariouu 
 ucss,
 
 334 
 
 THE BILL. 
 
 ('H. VI.§ 4. 
 
 < >, •■ 
 
 explained : 
 
 oiently extensive to answer the purpose of complete justice, care 
 must be taken not to run into the opposite defect, viz., that of 
 attemptintx to embrace in it too many objects : for it is a rule in 
 Equity, that two or more distinct subjects cannot be embraced in 
 the same suit. The ofl'ence against this rule is termed multifarious- 
 ness, and will render a bill liable to a demurrer.^ 
 
 According to Lord Cottenham, it is utterly impossible, upon the 
 authorities, to lay down any rule or abstract projiosition as to 
 what constitutes multifariousness, which can be made universally 
 applicable. The cases upon the subject are extremely various; 
 and the Court, in deciding them, seems to have considered what 
 was convenient in particular cases, rather than to have attem])ted 
 to lay down an absolute rule.^ The only way of reconciling the 
 
 1 Story Eq. PI. § 271. " ?>y multifori- 
 ousness in a bill," says Mr. Justice Story, 
 " is meant the improperly joining, in one 
 bill, distinct and independent matters, and 
 therein- contouuding them ; as for example, 
 the uniting in one bill of several matters, 
 perfectly distinct and unconnected, against 
 one defendant, or tlie demand of several 
 matters of a distirct and independent 
 nature against several defendants in the 
 same bill." Story Kq. I'l. § 271; West v. 
 Kaiidall, 2 Mason, 201; Fellows v. Fel- 
 lows, 4 Cowen, 682 ; Brinkenhoff i: Brown, 
 6 John. Ch. 139 ; Bedsole v. Monroe, 5 Ired. 
 Eq. 313; Boyd v. Hoyt, 5 Paige, 65; 
 Richardson v. M'Kinson,Litt. Sel. Ca. 320; 
 Jackson v. Forrest, 2 Barb. Ch. 576; 
 Kyan v. Shawneetown, 14 111. 20; Metcalf 
 V. Cady, 8 Allen, 587; Warren v. Warren, 
 56 Maine, 360 ; Newland v. Rogers, 3 Barb. 
 Ch. 432; Kennebec and Portland R.R. 
 Co. i". Portland and Kennebec B.R. Co., 
 54 Maine, 173; Richards v. Pierce, 62 
 Alaine, 660, 562; Crane v. Faircliild, 1 
 McCarter (N. J.), 76; Emans v. Emans, 1 
 McCarter (N. J.), 114. To render a bill 
 multifariou'i, it must contain several (jvod 
 distinct grounds of suit in Equity, which 
 cannot properly be joined in one suit. 
 Many v. Beekman Iron Co., 9 Paige, 188; 
 McCabe v. Bellows, 1 Allen, 269; Varick 
 V. Smith, 5 Paige, 137; Pleasant v. Glass- 
 cock, 1 Sm. & M. Cii. 17; Bedsole v Mon- 
 roe, supra ; Richards v. Pierce, 52 Maine, 
 562; Emans v. Emans, 1 McCarter (N. 
 J.), 114. A bill asking for an injunc- 
 tion to restrain waste, and also an account 
 lor rent due, is demurrable on the ground' 
 of multifariousness. Heed v. Reed, 1 C. E. 
 Green (X. J.), 248, 200; .see Bed.sole v. 
 Monroe, 5 Ired. Eq. 313. If a joint claim 
 against two or more defendants is improp- 
 erly joiried in the same bill with a sep- 
 arate claim against one of the defendants 
 only, in which the other defendants have 
 no "interest, and which is wholly uncon- 
 nected with the claim against tlieni, all or 
 either of the defendants may demur to the 
 bill for multifariousness. Swift v. Eckford, 
 6 Paige, 22 ; Boyd v. Hoyt, 5 Paige, 65 ; 
 
 Richards v. Pierce, 52 Maine, 562. A bill 
 against one for a claim against him in his 
 individual character, and another claim 
 against him as heir for the debt of liis ances- 
 tor, may be objected to for multifariousness. 
 Bryan r. I'.lythe, 4 Blackf. 249; see Rob- 
 inson V. Guild, 12 Met. 323. So a bill is 
 multifarious, which mi.xes up inde|)en- 
 dentclaims made by the ])laintiff in his own 
 right with others made % him as adminis- 
 trator. Carter v. Treadwell, 3 Story, 25, 
 51, 52; see Robinson v. Guild, 12 Met. 323. 
 A bill tiled by an administrator, in conjunc- 
 tion with the heirs and distributees of the 
 intestate, to recover personal ])roperty in 
 the hands of the defendant, and to divide 
 and distribute it, is multifarious. Thurman 
 V. Shelton, 10 Yerger, 383. 
 
 If a bill does not pi ay for multifarious 
 relief, it cannot be objected to for multifa- 
 riousness, though ttie case stated would 
 support a praver for multifarious relief. 
 Dick V. Dick, 1 Ilognn, 290. 
 
 " The conclusion," says Mr. Justice 
 Story, " to which a close survey of all the 
 authorities will conduct us, seems to be, 
 that there is not any ])Ositive, inflexible 
 rule, as to what, in the sense of Courts of 
 Equity, constitutes multiiaiiousness, which 
 is fatal to a suit on demurrer." Story Eq. 
 PI. § 539; Oliver v. Piat% 3 How. U. S. 
 333, 411, 412; Per Wilde .1. in Robinson 
 v. Guild, 12 Met. 323, 328; McLean v. 
 Lafayette Bank, 3 McLean, 415. For a 
 survey of the positions and doctrines held 
 by Courts of Equity on this subject in 
 different cases, see Story ICq. PI. §§ 271- 
 289,530, 040; Bugbee v. Sargent, 23 Maine, 
 269 ; Robinson v. Cro^s, 22 Conn. 587 ; War- 
 ren V. W^arren, 56 Maine, 360; Kennebec 
 and Portland K.R. Co. v. Portland and 
 Kennebec R.ll. Co., 54 Maine, 173; Abbot 
 V. Johnson, 32 N. 11. 9; Chase v. Searls, 
 45 N. II. 511, 519-521; Camp v. Mills, 6 
 Jones Eq. (N. C.)274. 
 
 ■^ See Carroll v. Hoosevelt, 4 Edw. Ch. 
 211; Einans V. Emans,] McCarter (N. J.), 
 118, 119; Warren v. Warren, 56 Maine, 
 368; Bowers r. Keesecher, 9 Iowa (1 With.), 
 422. The substance of the rules on the
 
 MATTER OF THE BILL. 335 
 
 authorities upon the subject is, by adverting to the foct, that Cii. VL§4. 
 although the books speak generally of demurrers for multifarious- *— — y — ~-^ 
 ness, yet in truth such demurrers may be divided into two 
 distinct kinds. Frequently the objection raised, though termed 
 multifariousness, is in fact more properly misjoinder ; ^ that is to 
 say, the cases or claims united in the bill are of so difierent a char- 
 acter, that the Court will not permit them to be litigated in one 
 record.- It may be that the plaintiffs and defendants are parties 
 to the whole of the transactions which fonn the subject of the suit, 
 and nevertheless those transactions may be so dissimilar, that the 
 Court will not allow them to be joined together, but will require 
 distinct records. But what is more familiarly understood by the 
 tenn multifariousness, as applied to a bill, is where a party is able 
 to say he is brought as a defendant upon a record, with a large 
 portion of which, and of the case made by which, he has no con- 
 nection whatever.^ Thus, where a bill was exhibited by trustees jq ^in by 
 un<ler a trust for sale, against several persons, who were the trustees for 
 purchasers of the trust estates, which had been sold to them by several 
 auction in different lots, Sir Thomas Plumer V. C. allowed a de- Purchasers, 
 murrer, which had been put in by one of the defendants, on the 
 ground that the bill was multifarious. His Honor said: "This 
 Court is always averse to a nudtiphcity of suits, but certainly a 
 defendant has a right to insist that he is not bound to answer a 
 bill containing several distinct and separate matters, relating to 
 individuals with whom, he has no concern." * In a subsequent to rescind 
 
 case, where an information and bill were filed for the purpose of , ^^.f,^^ ^° 
 
 • •11 111 1 • «■ different per- 
 
 settuig aside leases, granted by the same trustees at dmerent sons by sama 
 
 times to different jjcrsons, the same learned judge held, that, if ^™3*^®S' 
 
 the case had been free Irom other objections it would have been 
 
 subject of multifar'ousncss appears to be, misjoinder of parties, and not to the mis- 
 
 tiiat each case is lo be t;uveriied by its own joinder of subjects mentioned in the text. 
 
 circpmHtances, and must be led in a. great ^ Kmans v. Emans, 1 McCarter (N. J.), 
 
 measure to tlie S'^und discretion ot tlio 114, US. 
 
 Court. Cle{,'g r. Vamell, 18 I'e.xas, 294; » Campbell v. Mackay, 1 M. & C. 618; 
 
 Gaines v. Cli w, 2 How. L'. S. Oil); Oliver Crow v. Cross, 7 Jur. IS'. S. 1298, V.C.'S.; 
 
 f. I'iatt, 3 How. U. S ;5;i;5; r.uller I!. Spann, see I'urnor « Baptist Missionary Union, 5 
 
 "27 Mis. (5 Cusli.) 2;54; M;irshali t'. Means, McLeau, 344; Swayze v. Swav/.e, 1 Slockt. 
 
 12 (iuo. Bl; Kennebec and I'ortiiind Ji.K. (N. J.) 273; New England, "^jc. Hank v. 
 
 C'). V. Portland au'l Keiiui-beo K.li. Co., Newport Steam Eaotdiv, 6 R. I. l')4. 
 
 &2 Maine, 173, lb2; Sior.v Eq. I'l. § 284; _ * limokesu. Lord Wtiitwortli, 1 Mad. 86, 
 
 Cliase t). .Searls, 4o N. 11. 020; Abbot v. 89; su'C also liayner t'. .Julian, 2 l)ick.677; 
 
 ilohnson, 32 N. 11. 26; Warren r Warren, 6 Mad. 144, u. Tlie nnnginid note to 2 
 
 {»6 Manic, 368; l'ei)|jle p. .MniTill, 26 Cal. Dick. 677 is wrong; and see linmp v. 
 
 336; (iaines v. (Jbcw, 2 How. U. S. 61>J, Ureenhill, 20 Beav. 612; 1 .lur. N. S. 123; 
 
 642. To determine whether a bill is mul- Aberyslwjtli, &c. Ii'adway Company v. 
 
 td'ari'ius, regard mu.st be li^id to the stating I'tercy, 12 W. K. lOuO, V. C VV.; 2 11. & 
 
 part of the Dill, and not tothe prayeralone. M. 6(>2; Ueiit f Vardlev, 4 N. K. 60, V. 
 
 li .mil d v. M:chij;aii liank. Walker Ch. C. W.; Hcnick v. Houck, L. li 2 E(i. 19 
 
 214. M. K.; Crane v. Kaircliild, 1 .Mc(Jnrlcr (N. 
 
 ' By the l.'> & 16 Vic. c. 86, § 49, «»/(-, .1.), 76; Mctcalt v. (Jady, 8 Allen, 6&7; 
 
 p. 303,<ibjicti>iiisli.r misjilnicr ofiilaintill's IJobinson v. Cross, 22 Conn. 171. 
 are aboli.'hed; but this section applies to
 
 33G 
 
 THE BILL. 
 
 Cii. VI. § 4. 
 
 or to sft iisiilo 
 suilos to ilirtor- 
 eiit porsoiis 
 by tru!*tci's. 
 
 Cases of ex- 
 ception. 
 
 In bills 
 ajjainst per- 
 sons with dis- 
 tinct interests 
 in same 
 transaction. 
 
 Estates of two 
 different per- 
 sons may be 
 administered 
 in same suit, 
 if the parties 
 interested in 
 both estates 
 are the same, 
 and the 
 accounts can- 
 not be taken 
 eeparately. 
 
 liable to the charge of imiltifariotisness.^ The same ])rinci])lc was 
 attorwai'ds acted upon by Lord Eldon, in /Sidvidf/e v. Jli/de,'- where 
 a bill had been filed lor an acconnt of a testator's estate, and also 
 to set aside certain sales which had been made by the executor 
 and trustee to himself and another person of the name of Laying, 
 a demurrer to which bill, jMit in by Laying, had be(Mi overruled by 
 Sir John Leach V. C* The case came on before the Lord Chan- 
 cellor, by appeal: when his Lordship reversed the judgment of 
 the Vice-Chancellor, and allowed the demurrer: observing that 
 " when there are trustees to sell, and a bill is filed against them, it 
 is not usual to make the purchasers parties, but to state the con- 
 tracts and pray an inquiry." * Ilis Lordship, however, added, that 
 " there may be cases which cannot be delayed till those inquiries 
 can be made, on account of injury that may be done in the mean 
 time." 
 
 It is to be remarked that Sir John Leach, in pronouncing his 
 judgment upon the above demurrer observed, with reference to 
 multifariousness, that " in order to determine whether a suit is 
 multifarious, or in other Avords contains distinct matters, the in- 
 quiry is not wdiether each defendant is connected with every 
 branch of the cause, but Avhether the plaintifi"'s bill seeks relief in 
 respect of matters which are in their nature separate and distinct. 
 If the object of the suit be single, but it happens that different 
 jiersons have separate interests in distinct questions which arise 
 out of that single object, it necessarily follows that such different 
 persons must be brought before the Court, in order that the suit 
 may conclude the whole subject." ^ There is no doubt that, in the 
 above observation, the learned judge stated the principle correctly; 
 though, in his a^jplication of it, he went, in the opinion of Lord 
 Eldon, too far.*^ 
 
 Although the administration of the estates of two different per- 
 sons cannot, in general, be joined in the same suit, where the par- 
 ties interested in such estates are different, yet, where the same 
 parties claim the benefit of both estates, and they are so connected 
 that the account of on3 cannot be taken without the other, the 
 joinder of them in the same suit is not multifarious.'' 
 
 R. 2 Kq. 19 ; and see Marjjetts v. Perks, 12 
 W. U. 517, M. K.; Mar.-iiail v. Gilliara, 1 
 W. N. 255; 12 Jur. N. S 483, V. C S. 
 
 7 Uiimpbell V. Mackay, 1 M. & C. 603, 
 623; Lewis r. Edmund, Sim. 201,254; 
 Kump V. Greeiiliill, 20 liciiv. 512; 1 Jur. 
 N. S. 123; Attorney-Ueneral v. Cradock, 
 3 JNI. & C. H5, U3; 1 Jur 556; Younj^ v. 
 Hodges, 10 Hare, 158; Carter v. IJalluur, 
 I'J Ala. 814. The estiites of two ])er.-on3 
 who are j"int debtors may be aduiinistered 
 in the same suit. Woods v. iSowerby, 14 
 W. li. 9, V. C. W. 
 
 1 Attorney-General v. Moses, 2 Mad. 294, 
 305. 
 
 ■^ Jac. 151, 153; and see Lund v. Blan- 
 shard, 4 Hare, 9, 19; Thomas Z). Kees, 1 
 Jur. N. S. 1^7, .M. li ; Noriis v Jackson, 1 
 J. & H. 319; 7 Jur. N. S. 540. 
 
 3 5 Mad. 138. 
 
 * St-rv E'l I'l. § 274. 
 
 6 Salv.d,<e V. Hvde, 5 Mud. 146. 
 
 6 See Turner v. Hobio.son, 1 S. & S. 313, 
 315; S. C., nwrt. Turner v. Uoubleday, 6 
 Mad. 94; iJunn v. Dunn, 2 Sim. 32'J; Mar- 
 cos V. Fel)rer, 3 Sim. 40ti; Jerdein v. 
 Bright, 2 J. & 11. 325 ; liouck v. Bouck, L.
 
 ness. 
 
 MATTER OF THE BILL. 337 
 
 This observation leads us to a distinction, pointed out by Lord Ch. YI. § i. 
 
 Eldon' in the case of Salvidge v. Hyde^ and which has perhaps ' f ^ 
 
 been extended by later cases. The bill in that case was filed by Bills against 
 persons interested under a will, and by creditors of a testator, to -j^^ under'°^" 
 set aside two contracts, one of which had been entered into by the sub-con- 
 trustees for sale of an estate to one of their own number, and the multifarious, 
 other for the sale of another estate to the defendant Laying ; and 
 Lord Eldon, although he tbought that the object of setting aside 
 the contract entered into with Laying could not be embraced in a 
 bill to set aside the contract entered into with the trustee, yet 
 held, that if the trustee had purchased for himself, and then Lay- 
 ing had bought the same estate of him, the case would have been 
 diiferent.^ 
 
 From this it may be inferred, that an objection for multiforious- Defendant, 
 ness will not be allowed, where the person making the objection "ase'with * 
 has united his case with that of another defendant, against whom that of a 
 the suit is entire and incapable of being separated.* And so, in against whom 
 Benson v. IRidJield* where the plaintiffs had appointed A., B., and the suit is 
 C. their foreign agents, and A. had retired, wherettpon the plain- ohject'for 
 tiffs had appointed B., C, and D. their agents, and then filed a bill "^''l^i'^^o"^- 
 for an account of the two agencies, A., the I'etiiing party, demurred 
 for multifariousness. In giving judgment upon the demurrer, 
 Lord Langdalc M. R. observed : " I can very well conceive a case 
 jjroperly stated, in which it would be quite necessary, and it may 
 ultimately be quite necessary in this case, to continue any person 
 who was a partner in one of those agency firms, a party to the 
 cause by whicli the accounts are to l^e taken ;" ^ but, u])on perusal 
 of tlie bill, he did not find any such allegations as apjieared to ren- 
 der it necessary to continue, as parties to the suit, the different 
 ])ersons })arties to the transactions, and consequently he allowed 
 tlie demurrer. In the case oi t\\Q Attorney- General v. The Cor- 
 2>oration of Pooled' where the case against one defendant was so 
 entire as to l>e incapable of being prosecuted in several suits, but 
 yet another defendant was a necessary party in respect of a portion 
 only of that case, it was decided, that such other defendant could 
 not ol)ject to the suit on the ground of multilariousuess. And in 
 (Jampbell \. Maekay^ J^ord Cottciiliain lidd, tli;il wlicix- tlic plaiu- 
 
 1 Jac. 151. Fill. 4011, HOW. I'urr v. Altoriioy-CJcneral; 
 
 * Salvidge i'. Myle, .lac. 15.3. sue also luinaii r. Wearing, :} lie (;. & S. 
 8 Story Kq. I'l. § :i7fci, a, and iif>tc. Nor 7'.il>, which Wiis a case olCoryclosure of three 
 
 can ailelendaiil (leiiiur lur iiiiilliiarliiusne.ss di.stiiicl estute.s, and a piaycr to set aside a 
 
 on the ground ot the jdindei' of another de- sale hy a i)rior mortgagee' of one of them, 
 
 feiidant, who does not oinect. Wartlien «. as improvident. 
 
 ISrantley, 6 (ieo. 571; VVnitbeck «. Edgar, ^ 1 M. & (J. C0.3 ; and see Attorne}-- 
 
 'i. IJarh "Cli. 100. General v. Oadock, 3 M. & C. H.'i, !(5; 1 
 
 * 5 Uoav, 64H, 553. .lur. 55ii; Waishain i'. Stiiinfon, 9 .liir. N. 
 6 See Warthen v. IJrantley, 6 Geo. 571; S. IvJiil; \l \V. R. 03, L. .1.1.; 1 De (i., J. 
 
 Story i:.]. I'l. § -iTih u, iiiid note. & S. 078, overruling S. C. 1 II. & .AI. 323; 
 
 « 4 M. & C. 17,31; 2 Jur. 1080; 8 CI. & llamp v. Kobinson, 3 De G., J. & S. 97. 
 VOL. 1. 22
 
 338 THE BILL. 
 
 Cii. VI. § 4. tills have a common iutcvost ngainst all the defondnnts in a suit as 
 to one or more of the questions raised by it, so as to make them 
 all necessary parties for the jmrpose of enforcing that common in- 
 terest, the eireumstance of some of the defendants being subject to 
 distinct liabilities, in respect to dift'erent branches of the subject- 
 matter, will not render the bill multifarious.^ IMie facts of that 
 case were as follow: Sir James Cam])bell, by a deed of settlement 
 executed on his marriage with Lady J). L. Campbell, had vested a 
 fund in tAvo trustees, A. and B., ujwn trust for his wife for life, and 
 after her decease in trust for the sons of the man-iage who should 
 attain the age of twenty-one years, and daughters who should at- 
 tain twenty-one years or marry : Avith a proviso that the persons 
 to be appointed guardians of the children by his will, together 
 with the trustees of the settlement, should have authority to a])])ly 
 the interest, and also, in certain cases, part of the ca2)ital, of the 
 children's presum])tive shares, towards their maintenance and ad- 
 vancement during their resi)ective minorities. By a second deed, 
 executed after marriage. Sir James Campbell vested another fund 
 in two other trustees, C. and D., but upon similar trusts to those 
 of the first settlement ; and by his will, after making some specific 
 bequests to his wife, he bequeathed his property to A., B., and C, 
 ujion certain trusts for the benefit of his children, and appointed 
 A., B., and C. his executors and guardians of his infant children, 
 in conjunction with their mother. After the death of Sir James 
 Campbell, Lady U. L. Campbell, the wife, together with the chil- 
 dren of the marriage, filed a bill against A., B., C, and D., for the 
 accounts and administration of the proj^erty comprised in the two 
 deeds and will, to which bill a joint demurrer was put in by A., B., 
 and C, on the ground of multifariousness. The demurrer was, 
 however, overruled, upon argument, by Sir Lancelot Shadwell V. 
 C, and afterwards by Lord Cottenliam uj^on appeal : his Lordshij) 
 being of opinion, that the result of the jirinciples to be extracted 
 from the cases was, that where there is a common liability and a 
 common interest, the common liability being in the defendants, 
 
 1 Where the purpose of the bill was to ants is a necessary party to some p;irt of 
 
 enalili; tiie iilainlirt' to obtain ■satisfaction of the case stated. In sucli case neither of 
 
 a judf^mcnt at Law out of tiic property of the defendants can demur for multifarious- 
 
 his debtor, one of the defendants; and to ness, or tor misjoinder of causes of action, 
 
 this end the plaintiti'sou{,'ht to remove out in some of wliicli he has no interest." 
 
 of his way certain fraudulent conveyances Way v. Bragaw, 1 C. E. Green (N. -J.), 
 
 and incumbr.inces, anil to bring witjiin the 213,216; Randolph v. Daly, 1 C.E. (ireen 
 
 reach of his judgment equitable interests (N. J.), 3]y; see Hoyd v. Ho.vt, 5 I'aige, 
 
 winch were not the subjects of execution 78; liriiikerhoff i;. l)rown,4 .lohn. Ch. 671 ; 
 
 at law, it was held to be no objection that Fellowes v. Fellowes, 4 Cowen, 082; Story 
 
 one or more of the defendants, to whom Eq. Tl. § 271, b ; Hicks v. Cainpbed, 4 C. 
 
 pans of the property had been fraudulently E. Oreen (N. J.), 183; Coleman i;. Barnes, 
 
 conveyed, had nothing to do with other 5 Allen, 374; Cuyler v. Moreliind, 6 I'aige, 
 
 fraudulent transactions. Chancellor Green 273; Hichards v. Tierce, 52 Maine, 560; 
 
 said: "The case against the debtor is so Chase v. Searls, 45 N. H. 511, 519, tlseq.; 
 
 entire that it cannot be prosecuted in Morton v. Weil, 33 liarb. 30. 
 several suits, and yet each of the del'end-
 
 MATTER OF THE BILL. 
 
 339 
 
 and the common interest in the j^hnintifFs, different grounds of 
 property may be united in the same record.^ 
 
 It shoiild be noticed here, that where the nght of a person to 
 call upon the Coiirt for specific relief against another is so in- 
 cumbered that he cannot assert his own right till he has got rid of 
 that incumbrance, he cannot include the object of getting rid of 
 the incumbrance, in a suit for the specific relief which, but for that 
 incumbrance, he would be entitled to ; and that, if he attempt to 
 do so by the same suit, his bill will be multifarious. Thus, it was 
 held by Lord Eldon that, when a bill is filed for specific perform- 
 ance, it should not be mixed up with a prayer for relief against 
 other persons claiming an interest in the estate : and that, if there 
 is a title in other persons which the plaintiff is bound to get in, he 
 should file a bill for specific performance only, and should fortify 
 the defect in his title, ])y such means as he can, so as to be enabled 
 to complete it by the time when the contract will have to be en- 
 forced.^ 
 
 The principle which renders it imjiroper to mix up, in the same 
 bill, demands against different persons arising out of distinct trans- 
 actions, renders it improper to include in one suit separate infringe- 
 ments of the same patent, by different defendants ; ^ and for the 
 same reason, where a coj^yright has been infringed, bills must be 
 filed against each bookseller taking spurious copies for sale.* And 
 so, joint and separate demands cannot be united in the same bill ; ^ 
 
 Cn. YI. S 4. 
 
 1 See 1 M. & C. 623. A bill is not mul- 
 tifarious wliicii unites several matters dis- 
 tinct in tiieniselves, but whicli together 
 make up tlie piaintiflf's I^iuity, aiid are 
 necessary to comjilete relief; nor, on the 
 irround of misjoinder of several pl:iiniifl'<, 
 where either of thmn would not be entitled 
 to proceed si-par.itely for relict' without 
 niakiiif,' the oUier.i defeii'laiits. Hicks ?i. 
 <:ain[.b.||, 4 (;.!•:. (irce.i (.V..J.), 16^; Ken- 
 iiebrc and I'ortliinii K.H. (Jo. v. Portland 
 and Kennebec li.K. Co., 54 Maine, 173; 
 see Coleman v Hnrnes, 5 Allen, 374; Skeel 
 V. Spraker, 8 I'aige, 1>?2; .Myers v. United 
 Guarantee, &c. (Jo., 7 l)e d', .M. & (i. 112. 
 
 - .Mole v. .Smith, .Jac. 4!i4; Ma-on v. 
 Franklin, 1 Y. & C. C. C. 239, 241; .«eo 
 also Wh.dev r. Dnwson, 2 Sch. & Let. 367 ; 
 and ri,i(e. ],'. 2.30, 231 ; .Siorv Kq I'l. § 272; 
 Whitten v. Whiiten, 36 N.'ll. 320. So a 
 bill by a mortijiifjee a^^ainsf the mortf;at;or, 
 and an adverse claimant of the land would 
 be multifarious. Hinksr. \V;ilki-r, 2 Snnlf 
 Ch. 344. A hill allcfjin); that the [-1 linliff 
 and one of the de'endauts were copartners, 
 imd praying lor a sr;ttlement of tliecopnrt- 
 nr^hip concerns; and allcKintC a fraudu- 
 lent sale of nil the property ot the limi by 
 the said defendant 1.0 a thiol party, who 
 was the other defendant, and praying that 
 such sde may he declared vul, "is bad for 
 multifariousiicss. Sawyer v. >;oble, 65 
 .Maine, 227. 
 
 3 The plaintiff should not, however, file 
 nn unnecessary number of l)ill-; if he does, 
 the (Jourt will c<insijlidute tiie suits, or 
 make some equivalent order; see Fo.vwell 
 V. VVel)ster, lu Jur. X. S. 137; 12 W. K. 
 186, L. C; 2 Dr & Sm. 250; 9 Jur. N. S. 
 1189. 
 
 4 Dillv V. Doig, 2 Ves. J. 486 ; Story Eq. 
 PI. §§ 277, 27«. 
 
 6 llarri-on v. Hogg, ?6. 323, 328; Swift 
 V. Eckford, 6 Paige, 22; Stoiv Kq. PI. 
 §§ 271, 279; McLellau v. Osborne, 51 
 Maine, 118, 120; Emau.s v. Kmans, 2 lieas- 
 ley (N. .1.), 205. Thus a bill praying for 
 an account of two di-tinct lirms, made up, 
 i/i i>-:rr, of the same i)ersons, was held Inul 
 lor inultif:iri(uisness. (irflinr. Merrill, 10 
 Md. 264. So where three per.sons had .--u-'- 
 cessiv( ly withdrawn from a lifin, reducing 
 the number from live to two, a hi I praying 
 for an account and settlement ol the part- 
 nership concerns /'i;/- l/ie wlnife lime, was 
 held to be bail for nndtlfuriousncss, and 
 was di-missed. Wliiie v White, 5 Cill, 
 309. So a prayer in a bill by one of sevei al 
 part-owiiiTs of a vos-iei against other pirt- 
 owners, who became such at several dif- 
 ferent lim(^s, for an a'count, during that 
 t)eiiod ol'lime win 11 all were owners, was 
 held correct; if the prayer were not thus 
 limited, the bill would he bad for n)ul- 
 tifaiiousne>H. McLellau v. (J-borne, 51 
 Maine, lib; see Lulling v Lultiug, 4 
 
 Bill for in- 
 fringement of 
 patent, can- 
 not include 
 •infringement 
 by ditferent 
 defendants. 
 
 Joint and 
 several de- 
 manils cannot 
 be united.
 
 340 THE BILL. 
 
 Cn. VT. § 4. and altliough tlio (loiondaiils niny l)c liable in respect of every one 
 o{' (ho demands made by (lie bill, ye( they may be of so dissiniikir 
 a charaeter as to render i( iminoper to include them all in one suit. 
 The objecdon, in these cases, is more strictly called misjoinder, and 
 has been before albided to in the quotadon from Lord Cottenhani's 
 judgment in C(())ij)fKll y. Jlackifi/ : where his Lordship observes, that 
 the distinction between misjoinder 'and multifariousness is clearly 
 exhibited in the case of Ward v. The Duke of Northumberland} 
 " In that case," said his Lordshij), " the ])Iaintift' had been tenant 
 of a colliery under the preceding Duke of Nortlunnberland, and 
 continued also to be tenant under his son and successor, the then 
 Duke ; and he tiled a bill against the then Duke and Lord Bever- 
 ley, who were the executors of their father, seeking relief against 
 them in res])ect of transactions, part of which took jdace in the 
 lifetime of the former Duke, and part between the plaintift" and the 
 then Duke after his father's decease. To this bill the defendants 
 put in separate demurrers, and the forms of the two demurrers, 
 which were very different, clearly illustrate tlie distinction above 
 adverted to. The Duke could not say there was any portion of 
 the bill with wdiich he was not necessarily connected : because he 
 was interested in one j^art of it as owner of the mine, in the other 
 as representing his father. But his defence was, that it was im- 
 proper to join in one record a case against him as representative of 
 his father, and a case against him arising out of transactions in 
 which he was personally concerned."'^ The form of his demurrer 
 was, that there was an improper joinder of the subject-matters of 
 the suit. Lord Beverley's demurrer again was totally different : it 
 was in the usual form of a demurrer for multifariousness, and 2)ro- 
 ceeded on the ground that, by including transactions which occur- 
 red between the plaintiff and the other defendant with transactions 
 between the plaintiff and the late Duke (with the latter of which 
 only Lord Beverley could have any concern), the bill was drawn 
 to an unnecessary length, and the demurring party exposed to im- 
 proper and useless expense.^ Both demurrers were allowed, and 
 both, it may be said, in a sense, for multifariousness ; but it is obvi- 
 ous that the real objection was very different in the two cases. In 
 Harrison v. llogg^* which Avas also more properly a case of mis- 
 joinder, the plaintiffs endeavored to unite in one recoi'd a demand 
 in which all the plaintiffs jointly had an interest, with a demand in 
 which only one of them had an interest ; and the demurrer was 
 
 Sandf. Ch. 31; as to suing co-executors, 2 gee Latting v. Lattinpr, 4 Sandf. Ch. 
 
 separately liable, for contribution, see 31; Van Mater r. Sickler, 1 Stockt. (N.J.) 
 
 Sin-ileton v. Selwyn, 9 .Jur. X. S. 1149; 13 4b3. 
 
 VV. K. 98, V. C. W . ; Micklettiwait v. \Vin- 3 gee Turner v. Amer. Bapt. Missionary 
 
 stiinley. 13 W. K. 210, L. .J.J. Union, 'j McLean, 344. 
 
 1 2 Anst. 4tJ9,47tJ ; see Eiuans t>. Emans, ^ 2 Ves. J. 323, 328. 
 2 Bea^ley (N. J.), 205,207; Boyd v.lioyt, 
 5 Paige, 79.
 
 MATTER OF THE BILL. 
 
 341 
 
 allowed upon the ground that the subject-matters were such as, in 
 the opinion of the Court, ought not, according to the rules of plead- 
 ing, to be included in one suit.^ In SaxtO)i v. Davis,^ the suit 
 prayed an account against the representatives of a bankrupt's as- 
 signees, and against Davis, a person who claimed through those 
 assignees, and also against a person who had been his assignee 
 under the Insolvent Debtors' Act ; and there also the bill was held 
 to be bad for multifariousness." ^ 
 
 It is to be observed, that this objection will only apply where a 
 jjlaintiff claims several matters of difierent natures by the same 
 bill ; and that where one general right only is claimed by the bill, 
 though the defendants have separate and distinct interests, a de- 
 murrer will not hold.* As where a person, claiming a general right 
 to the sole fishery of a river, files a bill against a number of persons 
 claiming several rights in the fishery, as lords of manors, occupiers 
 of lands or otherwise ; ^ so, in a bill for duties, the city of London 
 was permitted to bring several of the j^ersons before the Court, 
 who dealt in those things whereof the duty was claimed, to estab- 
 lish the plaintifts' right to it ; ® and where the lord of a manor filed 
 a bill against more than thirty tenants of the manor, freeholders, 
 copyholders, and leaseholders, who owed rents to the lord, but had 
 confused the boundaries of their several tenements, praying a com- 
 mission to ascertain the boundaries, and it was objected, at a hear- 
 ing, that the suit was improper, as it brought before the Court 
 
 Cn. ^^. § 4. 
 
 Bills to estab- 
 lish general 
 right, against 
 defendants 
 having 
 distinct 
 interests : 
 
 as a sole 
 fishery, 
 
 or a dutj', 
 
 or to ascertain 
 boundaries, 
 
 1 Storv Eq. PI. § 279; Bovd v. Uoyt, 5 
 Paige, 6o; Larkins r. Biddle" 21 Ala. 2-52; 
 Kmans r. Kmans, 2 B'-aslev (N. J.), 205. 
 
 2 18 Ves. 72, fcO. 
 
 3 1 M. & C. 619; Story Eq. PI. §§ 276, 
 28.5, 530. 
 
 •« Lil. Red. 182; Hower^ v. Keesecher, 9 
 Iowa(l With.), 422; Dimmock v. Bixby, 
 20 Pick. 3G8; Sear* r. Carrier, 4 Allen, 
 341; Tucker v. Tucker, 2!» Miss. (8 Jones) 
 350; Chase v Searles. 45 X. H. 519; Bug- 
 bee r. ^arge^t. 23 .M;tine, 209; Warren v. 
 Warren, 50 .Maine, 367 ; Ff»s r. Ilaynes, 
 31 M:iine, 81; Fcilowes r. Fellowes, 4 
 (^owen, 0*-2; Itidiard-i r. Pierce, 52 Maine, 
 502; People r. Morrill, 20 Cal. 330; Story 
 Eq. PI. § 278, note; Murniv v. Hiiy, "l 
 Bull) Cli. 59; Mix V. Ilotchkiss, 14 Conn. 
 32; p.ioh V Stamper, 10 Geo. 109; Nail 
 r Moblev, 9 (ico. 278; Win.slow t'. ])<>u-i- 
 man, 18 Wis. 450; see Wiit.son (). Cox, 1 
 Ire<l. K(]. 38!); Stuart r. (Mter, 4 iCand. 
 74; Xewl.ind v. Rogers, 3 Barb. Ch. 432; 
 Kf.hert-on c. St.-vens. 1 Ircd Cli. 247; 
 Walkiip V. Zchring. 13 I'.wa (5 Willi.), 
 800; Dchifielrl r Ander^jn, 7 Sm. & M. 
 030; Allen v. M-.ntgoniery K.R. Co., 11 
 Ala. 437; Scriiiicger r. Bucliannon, 3 A. 
 K MMr-h 2I'.<; Parish r. S'oan, 3 In.l. 
 Ch 60"; Vaim v. Ilarg«>tt, 2 Dev. & Bat. 
 Ch 31. Nor will the objection of iniilii- 
 t'uriousness prevail where the interests of 
 
 the several p'aintiflf-;, though distinct and 
 upon distinct conveyances, are yet of a 
 siinibir nature against the same defend- 
 ants, and in relation to the snnie sutject- 
 matter, and the relief proved is in cliara;'- 
 ter the same to all. Kunkel i: Markeil, 26 
 Md 390, 409; see Thomas v. Doub. 8 (Jill, 
 7; Young y. Lyons, 8 (iill, 166; Williams 
 V. West, 2 Md. 198; Peters v. Van Lfar, 
 
 4 Gill, 263, 264. But a bill is held bad 
 for multifiiriousness, where it is brouglit 
 against several defeniiants, seekini: redress 
 for injurie* arising nut of transactions with 
 them separately, at dilVerent times, imd re- 
 lating to difierent subjects.- Coe r. Turner, 
 
 5 Conn. 80; Marseli'- r. Morri" Can:d, &c. 
 1 Saxton {N. .].), 31; Me icham r. Wil- 
 liams, 9 .'Via. 842; Cnlliurn v. Bionghtoii, 
 9 Ala. 351; Ilungerford iv CushiiiL', 8 Wis. 
 332. Unconnected demands iigainst dif- 
 ferent estate- canu'it be united in the same 
 bill, though the defen-lant is executor 
 of both Daniel r. Morrison, I);ina, 1^6; 
 Kav V. Jones. 7 .1. .1. Marsh. 37; see Mc- 
 Cartnev v. Calhoun, 11 Ala. 110. 
 
 6 M;Ivor of York v. Pilki'igton, 1 Afk. 
 282. ci'ed l.d. lied. l.'^2; Smith r. Kiirl 
 Brownl.w, I.. K. 9 Eq. 241; Clia.se v. 
 Searles, 45 N. H 511. 621. 
 
 e Citv of l.onilon v. Perkins, 3 Bro. P. 
 C. ed. tomi 002.
 
 342 
 
 THE BILL. 
 
 111. VI. 
 
 or for tithes; 
 
 but objocts 
 must bo of 
 siiuiu nature ; 
 
 but bill 
 ajrainst one 
 tor separate 
 and distinct 
 causes, is 
 demurrable : 
 
 rnnny jiavties having distinct interests, it was answered that the 
 lord c'biinied one general right, for the assertion of which it was 
 necessary to ascertain the sevei'al tenements; and a decree was 
 made accordingly.^ Ujion the same princijile it is, that one snit is 
 entertained for tithes against several ])arishioners. Suits of this 
 kind, however, must all be for objects of the same nature ; and if 
 a bill is filed against several defendants for objects of a different 
 nature, although the ])laintiff claims tliem all in the same character, 
 it will be multifarious; ^ thus, if a parson should prefer a bill against 
 several jiersons, viz., against some for tithes and against others for 
 glebe, it would be liable to demurrer; and so, if the lord of a manor 
 were to })refer one bill against divers tenants for several distinct 
 matters and causes, such as common, waste, several piscary, &c., 
 this would be wrong : though the foundation of the suit, viz., the 
 manor, be an entire thing.* 
 
 It is to be remarked, that Lord Redesdale appears to confine 
 the meaning of multifiriousness to cases where a plaintiff demands 
 several matters of difiereut natures of several defendants by the 
 same bill ; * but in Attorney- General v. 27ie Goldsmiths'' Com- 
 pany,^ Sir Lancelot Shadwell V. C. said : " I apprehend that, 
 besides what Lord Redesdale has laid down upon the subject, 
 tliere is a ride arising out of the constant practice of the Court, 
 that it is not competent, where A. is sole j)laintiff, and B. is sole 
 defendant, for A. to unite in his bill against B. all sorts of matters 
 wherein they may be mutually concerned.^ If such a mode of 
 proceeding were allowed, we should have A. filing a bill against 
 B., praying to foreclose one mortgage, and, in the same bill, pray- 
 ing to redeem another, and asking many other kinds of relief with 
 
 1 Magdak-n Coll. v. Atliill, cited Ld. Ktd. 
 183. 
 
 2 West V. Randflll, 2Ma.son, 181; Cam- 
 bridge Water Works v. Sonierville Dj'eing; 
 &e. Co., 14 Gray, 193; Swift v. Eckford, 
 6 Paige, 22. 
 
 a H'lke V. Harris, Hard. 337. 
 
 4 Ld. Ked. 181. 
 
 5 5 Sim. 670, 675; and see Attf'rney- 
 General v. The Corporation of Carmarthen, 
 G. Coop. 30 ; Attorney-General v. St. Cross 
 Hosnital, 17 IJeav. 435; Huphes v. Cook, 
 34 Heav. 407; see Storv Eq. PL §§ 531, 
 532.533; Kent v. Lee, 2 Sandf. Cli. 105. 
 A bill is multifarious which seeks to re- 
 deem a mortpajie of an entire estnte. and 
 a subsequent in'irtgiige by one tenant in 
 cnmmon of his share in a part of tiie estate. 
 White V Curtis, 2 Gruy, 467. But a bill is 
 not necessarily nuiltifariou-, by reason of 
 its seekiiifr to redeem two distinct mort- 
 gages of different parcels of real estate, or 
 by reasf'n of its seeking specific [lerfonn- 
 ance of distinct contmcts rehiting to dif- 
 ferent parcel* of real estate. Robinson v. 
 Guild, 12 Met. 323; see Uolmau v. Bank 
 
 of Norfolk, 12 Ala. .369. Nor, where it 
 seeks to foreclose a mortgage of land, and 
 to redeem a prior mortgage of (.ne of the 
 trncts held bv one of the defendiints. Bell 
 V. Woodward, 42 N. II. 181. A bill for a 
 general account and settlement of a co- 
 partnership may embrace every object 
 necessary to tlie complete adju'-tmeiit of 
 the concern, without being objectionable 
 for multifariousness. Wells v. Strange, 5 
 Geo. 22; see Kent v. Lee, 2 Siindf. Ch. 
 105; 'lomlinson v. Claywell, 4 Jones Eq. 
 (N. C.)317. 
 
 B See Story Eq. PI. § 280; Brvan v. 
 Blythe, 4 BIrtckt". 249; White v. Curtis, 2 
 Gray, 467; Davoue v. Fanning, 4 John. 
 Ch. 204; Carniicliael v. Bowder, 3 Howard 
 (Miss.), 252; Hobersion v. Stevens, 1 Ired. 
 Eq. 247; Story Eq. PI. §282; Lynch v. 
 Johnson, 2 Litt. 104. Debt and "detinue 
 may be joined, and for a similar reason, a 
 cliiim for a specific tract of bind, and for a 
 sum of mone}', the parties being the same, 
 maj' be united in the same suit in Chan- 
 cery. Wiiitney v. Whitney, 5 Dana, 329.
 
 MATTER OF THE BILL. 343 
 
 respect to many other subjects of complaint." In that case, the Ch. VI. § 4. 
 
 information against the Company stated, that there was a charity "■ y ^ 
 
 for the benefit of young men, being free of the Company, and then as, bill against 
 alleged- that divers other bequests had been made to the Company ford^isdnct 
 for the purjiose of making loans to young men for their advance- cliarities, 
 ment in business or life, and prayed that tlie first-mentioned char- 
 ity, and all other (if any) like gifts and bequests to the Company 
 might be established, and that the due performance of the chari- 
 table trusts might be enforced for the future ; and the Vice-Chan- 
 cellor, upon a demurrer being put in to the information, because it 
 Avas exhibited for several and distinct matters which ought not to 
 be joined together in one information, held the information to be 
 multifarious, and allowed the demurrer.^ 
 
 It should be noticed that, in the above case, there was nothing unless they 
 in the information to show that the character of the bequests was' geneous"' 
 homogeneous, and that his Honor held, that if there had been any 
 allegation to show that they were of that character, although 
 there might be minute differences between the bequests, they might 
 all have been com})rised in the same information.'^ Thus, in the 
 case of Attorney- General v. TJie Merchant Tailors' CorniKmy^ 
 where the information prayed the establishment or regulation of a 
 great number of different charitable gifts, which were stated in the 
 information to have been made to the Company, by way of bequest 
 or otlierwise, on trust to lend out the same to freemen of the Com- 
 pany, or upon some other like or corresponding trust, for the benefit 
 and advancement of freemen in trade or business : the number of 
 charities in respect of which the relief was souglit by the information 
 was eight ; but as they were to be applied mainly and substantially 
 for the same objects, and it appeared upon the information that, 
 owing to the minuteness of the sums, each of them could not be 
 administered as the donors pointed out. Sir Lancelot Shadwell V. 
 C. tliouglit that tlie Court ouglit, at the hearing, to deal witli them 
 conjointly, and that the information was not multifarious.* On 
 apjieal. Lord Brougham concurred with this decision, as to seven 
 of the charities, and gave leave to amend the biin)y adding parties 
 or waiving relief as to the eiglith.'' 
 
 From the above cases it may be deduced, tliat a jdaintiff cannot "Where diffcr- 
 join in his l»ill, even against tlie same defen<laut, matters of dill'er- h"„",','',.iu" 
 ent natures, although arising out of the same transaction; vet, ons. hill not 
 
 1 . , , , ,.' iiiullilanous. 
 
 wlien tiie matters are hotnorjencoris m tlieir character, the intro- 
 duction of them into the same bill will not be multit'arious ; and 
 
 1 See Story Eq. PI. §§ 532, 533. Inn.l, thtit it aNo alleges that the defendant 
 
 2 See 5 Sun. 676. ptirchased the 1 md as the pl.iiwtiirs aKcnt, 
 
 * 5 Sim. '2>)8. Mild witli his innney, and therudire holds 
 
 * Story Kq. I'l. § 281. It is no objection it in trust tor ihe'plaintiff. (Jerrish v. 
 to a hill in Ki|iiiiy, prnyinf^ for the speeilic Tow ne, 3 (iray, 82. 
 
 performance of au agreement to convey '' 1 .M. & K. 1(19, 102.
 
 344 
 
 THE BILL. 
 
 m. VI. § 4. 
 
 rciiiitiiV may 
 ilaiin samo 
 riiilit by .lit- 
 t'fivul titles. 
 
 Bill l\v sev- 
 eral jJlaiiitifts 
 i-laiiiiiiiir ili^- 
 tiiKt riuhts. is 
 multifarious : 
 
 as, purchasers 
 of difterent 
 lots at an 
 auction; 
 
 or heir and 
 next of kin, 
 
 it is to 1)0 obsorvod, tliat this distinction will not be affected by 
 the eiiviinistanee of the ])laintiff claiming the same thing under 
 distinct titles, and that the statement of such different titles in the 
 same bill will not render it multifarious.^ Thus, where a bill was 
 tiled for tithes by the rector of a jiarish in London, in whicli the 
 title was laitl under a decree made pursuant to the 37th lien. 
 VIII. c. 12, by which payment of tithes was decreed in London at 
 the rate of 2s. del in the pound on the rents, with a charge that, 
 in case such decree should not be deemed binding, the plaintiff 
 w-as entitled to a similar i)ayment, mider a j)revious decree, made 
 in the year 1535, and confirmed by the same Act ; and in case 
 neither of the said decrees were binding, the bill charged that the 
 plaintiff Avas entitled, by ancient usage and custom from time 
 immemorial, to certain dues and oblations calculated according to 
 'rent at 2s. 9d. in the pound : a demurrer for multifariousness was 
 ovei'ruled.'^ 
 
 As a bill by the same plaintiff against the same defendant for 
 different matters would be considered multifaiious, so, d fortiori, 
 would a bill by several plaintiffs, demanding distinct matters, 
 against the same defendants.'' Thus, if an estate is sold in lots 
 to difterent purchasers, the purchasers cannot join in exhibiting 
 one bill against the vendor for a s])ecific performance; for each 
 party's case would be distinct, and there must be a distinct bill 
 upon each contract.* Upon the same principle, w^here the heir 
 
 1 Neither is a bill multifai ions where its 
 allegations all relate to one transaction, 
 between the same parties, to one and the 
 same subject-matter and the same injury, 
 although It mav pray for two different 
 methods of relief against that injury. 
 Wells v. Briitgeport &c. Co , 30 Conn. 
 316. Nor is a bill multifarious because 
 several groumis are set out to show the 
 pliiintift-s right to tlie relief sought. Cauley 
 V. Lawsoii, 5 .Jones Eq. N. C 132. 
 
 W'here the transactions charged are 
 parts of a series of act*, all tending to de- 
 feat the plaintiff's remedy at Law, they 
 mav properly be united in the same bill. 
 Randolfih v. Daly, 1 C E. Green (N J.), 
 313; Kennebec a'nd ]'ortl!\nd K.R. Co. ». 
 Portland and Kennebec R H. Co., 54 Maine. 
 173. A bill brought by an insurance com- 
 pany, praying that a policy of insurance, 
 ■which hiis been obtained from them by 
 fraud, may he delivered up to be cancelled, 
 and a!so that a connnission may issue for 
 the examination of witnesses, is not mul- 
 tifarious. C<innneriial Mut. Ins. Co. v. 
 McLoon, 14 Allen, 3.51. 
 
 2 Owen V. Nouin, M'Lel. 238; 13 Pri. 
 478; and spe P.oyd v. Moyle, 2 Coll. 316, 
 323; where a bill to restrain two actions 
 relating to the same matter was held not 
 to be multifarious'; .see also Davis i'. Cripps, 
 2 Y. & C. C. C. 430, 434. 
 
 3 Jones V. Garcia del Rio, T. & R. 297, 
 301; see Finley v. Harrison, 5 J. .J. Marsh. 
 158; Kay v. Jones, 7 J. J. Marsh. 37; Al- 
 len V. Miller, 4 Jones Eq. (N. C) 146 ; Mix 
 V. Hotchkiss, 14 Conn. 32 ; Kennedy v. 
 Kennedv, 2 Ala. 571 ; Armstrong i'. Athens 
 Co., 10 Ohio, 235; Ohio v. Ellis, 10 Ohio, 
 456; Marshall v. Means, 12 Geo. 61; Av- 
 ers V. Wright, 8 Ired. Eq. 229. But 'a 
 ■widow, who is administratrix of her hus- 
 band's estate, and brings a bill in Equity 
 to redeem real estate mortgaged by him, 
 does not make the bill multifarious, by 
 therein claiming to maintain her suit in 
 b'lth capacities. Robinson v. Guild, 12 Met. 
 323; see Fairly i). Priest, 3 Jones Eq. (N. 
 C.) 21. One tax-payer of a school district 
 cannot sue in behalf of himself and of the 
 other tax-payers of the district, to restrain 
 the sale of their real estate for the purpose 
 of collecting a delinquent tax assessed to 
 paj- certain judgments against the district, 
 and to have' the jud'/ments declared void, 
 on the ground tliat they were obtained on 
 illegal and void school orders, &c. Each 
 ta-v-payer desiring the relief sought, must 
 bring his general action. Newcomb v. 
 Horlon, 18 Wis 560. 
 
 4 Hargreaves v. Wright, 10 Hare, Ap. 
 56; Story Eq. PI. § 272, and notes; and 
 see Hudson v. Maddison, 12 Sim. 416, 418; 
 5 Jur. 1104, which was the case of a bill
 
 MATTER OF THE BILL. 
 
 345 
 
 and next of kin of an intestate, who was an infmt, was joined 
 with his sister, who was the other next of kin, as phiiutiff in a bill 
 against the widow, who had taken out administration to the intes- 
 tate's effects, and had also taken possession of the real estate, as 
 guardian to the infant heir, for an account both of the real and 
 pei-sonal estate, Sir Lancelot Shadwell V. C. allowed a demurrer 
 for multifariousness, on the ground that the interests in the real 
 and personal estate were distinct from each other.^ But it has 
 been decided, that a bill does not become multifarious because all 
 the plaintiffs are not interested to an equal extent ; as in Knye v. 
 Moore^ where a bill was filed by a woman and her children to 
 compel the delivery up of a deed, by which the defendant had 
 made a provision for the woman (with whom he had cohabited), 
 and her children, and which had been executed in pursuance of an 
 agreement, whereby he was bound, besides the execution of the 
 deed, to })ay to the woman an annuity for her life, an account of 
 which was also sought by the' bill : it was objected, upon demurrer, 
 that the bill was multifarious, because, besides seeking the per- 
 formance of the agreement under which the mother alone was 
 entitled, it joined to that the claim for the deed, in which she was 
 interested jointly with her children ; but Sir John Leach V. C. 
 thought that, the whole case of the mother being jjroperly the 
 subject of one bill, the suit did not become multif irious because 
 all tlie plaintiffs were not interested to an equal extent.^ 
 
 And so, where several persons claim under one general right, 
 they may file one bill for the establishment of that right, without 
 incurring the risk of a demurrer for multifariousness, although 
 the title of each plaintiff may be distinct;* thus, in Potoell v. The 
 
 Ch. VI. § 4. 
 
 by several persons to restrain a nuisance; 
 see, li'iwcver, Pollock v. Lester, 11 Hare, 
 266, where it was lielil that, in a similar 
 case, it was no misjoinder, and within the 
 provisions of lo & 16 Vic. c. SO, § 49. But 
 •where an administrator has cojlusively 
 sold separate lots to separate purchasers 
 at the same sale, a hill iif^ainst all tii(t i>ur- 
 chasers is not inultilarions. Koriiiijuet r'. 
 For-tall, 34 Miss. (5 (Jf'orf^ft), 87 ; sec 
 Coleman ?'. llariu-s, .0 .Mien, 374; Tucker 
 V. Tucker. 29 Mis. (8 .lones) 350 ; (Jaine-S 
 V. Chew, 2 How. L'. S. 61'J; Williams v. 
 Neel, 10 Uich. 1 K(|. (S. C.) 338; Ikav r. 
 Thatcher, 28 Miss. (7 .Jones) 129. A hill 
 to have certain notes delivered up and 
 canci-lled. the notes heinj^ all made liy the 
 plainlilT, and payahlc to the same (larty, is 
 not multilanouH, for joinint; "'' respondents 
 the several pers'ins holding' the<e notes. 
 (Jnrrett i.'. Missinsiiipi iS: Ala. UK. Co., 1 
 Freeman Ch. 70; see Sears v. Currier, 4 
 Allen, 339; liiirtec r. Tomiikins, 4 Sneed 
 (Tenii.), 623; IIal-tc:ul i'. Slip|,ard, 23 Ala. 
 558; Martin r Martin, 13 Mis. 36 
 
 1 Dunn f. Dunn, 2 Sim. 329; Maud v. 
 
 Not necessary 
 that all the 
 plaintifts be 
 equall}' 
 interested. 
 
 Several may 
 claim under 
 one j^eneral 
 right; 
 
 Acklom, ib. 331; Exeter College v. Row- 
 land, 6 Mad. 94; see, however, Sanders v. 
 Kelsev, 10 ,Iur. 833, Y. C. E ; limes «. 
 Mitchell, 4 Drew. 57; 3 Jur. N. S. 756; 
 Thomiis V. Rees, 1 Jur. N. S. 197, M. R.j 
 Allen V. Miller, 4 .Jones Eq. (N. C) 146. 
 
 2 1 S. & S. 61, 64. 
 
 ^ See observations on this case in Dunn 
 V. Dunn, 2 Sim. 231. 
 
 ^ Storv Eq. I'l. § 279 a ; Shields r. Thom- 
 as, 18 liow. U. S. 253. Where a bill in 
 Equity, by .several plaintifTs, to enjoin a 
 nuisance, contained also a prayer tor an 
 account and compensation tor the daiTiago 
 to each complaiiiaiit rcsiicctivcly, it was 
 held, that inuilil'aricius n-licl' ((iiild not be 
 granted as jiiayed lor; hut that tiie oljjec- 
 tion mif^ht lie obviated by strikin;.; out iho 
 prayer tor an iiccount of the diimaj^'e to the 
 pbimlitrs respectivelv. Murrav v. IImv, 1 
 Harb. Ch. 69; Brady v. Weeks, 3 Hiirb. 
 (.S. C.) 157. So in other cases, where all 
 the plaiiititls are interested in the principal 
 matter slated in the hill, but the hill slates 
 a distinct Kf"""'! for the interl'erenco of 
 Equity, which concerns only one of the
 
 346 
 
 THE BILL. 
 
 Cn. VI. § 4. 
 
 as in bill of 
 peace. 
 
 Multifarious- 
 ness may be 
 olijeofed to by 
 (leniurror nr 
 answer, but 
 not at the 
 healing, 
 
 except by the 
 Court. 
 
 J^itrl of Powis,^ Avhcre tlio froeliold ton:in1s of a lonlsliip having 
 liuhts of C'oiuiuon over certain lands, the h)r(l a)»i)roved ])arts of 
 the coninion hiiuls and granted thein to other persons, but the 
 tenants prostrated the fences, upon which actions of tresi)ass were 
 brouglit against them, and they filed a bill in the Court of Exche- 
 quer, in the nature of a bill of peace, against the lord and his 
 grantees, to be quieted in the enjoyment of their commonable 
 rights, a general demurrer was overruled : the Court being of 
 opinion, that the objection that the plaintiffs might each have a 
 right to make a separate defence to the actions at Law, was not 
 valid, as there was one general question to be settled, which 
 pervaded the whole. • 
 
 The proper way in which to take advantage of multifariousness 
 in a bill is by demurrer;'^ and it is too late to object to a suit, 
 on that ground, at the hearing.^ It seems, however, from the 
 report of the judgment of Sir John Leach M. R. in Greemoood v. 
 Chw-c/u'll,* that the objection may be taken by answer,^ and that 
 though the defendants are precluded from raising the objection 
 at the hearing, the Court itself will take the objection, if it thinks 
 fit to do so, with a view to the order and regularity of its j^ro- 
 ceedinsfs.® 
 
 plaintiffs, if there is no prayer for relief 
 toucliiniT tliis Litter matter, the bill is not 
 multifarious. Judson v. Toulinin, 9 Ala. 
 662 ; Davis v. Miller, 4 Jones Eq. (N. C.) 
 447. 
 
 1 1 Y. & J. 159; see Cornwell v. Lee, 14 
 Conn. 524. 
 
 2 For form of demurrer, see Vol. III. 
 
 8 Ward V. Conke, 5 Mad. 122 ; Wvnne 
 V. Callander, 1 Russ. 293, 206; Powell v. 
 Cockerell, 4 Hare. 557, 562; Story Eq. PI. 
 § 2^4, a. It is held, in the followinir cases, 
 that advantage must be taken of multifari- 
 ousness bv demurrer. Bivan v. Bhthe, 4 
 Blackf. 249; Grove «. Fresh, 9 Gill & ,J. 
 281: Thurmaii v Shelton, 10 Yerger, 383; 
 Luckett V. White, 10 Gill & .J. 480; 
 Bell V. Woodward, 42 N. II. 181, 189; see 
 Avery v. Kellogtr, 11 Conn. 562; Moreau IJ. 
 Saffarans, 3 Sneed (Tenn.), 595; Redmond 
 V. Dana, 3 Bosw. (N. Y )615. Filing an an- 
 swer and froing into an examination of tes- 
 timony as to the merits of the whole matter 
 in conlroversv, is a waiver of the objection. 
 Gibbs V. Ci'igett, 2 (iill & .J. 14 ; but 
 see Murdock v. Uatciiff. 7 (Jhio 119; Nel- 
 son t'. H 11, 5 How. U. S. 127; Wellborn v. 
 Tiller. 10 Ala. 305; Veghte «. The Karitan 
 Water Power Co , 4 C. E. Green (N. J ), 
 142. 144, 145. In Olivers. Piatt, 3 How. 
 U. S. 333. 412, it was held, that the objec- 
 tion of inultiiarionsness cannot, as a tuMt- 
 ter of rigtit, be taken by the parties except 
 on demurrer, plea, or answer ; if not so 
 taken, it must be resarded as -waived. 
 Wil-on V. Lynt, 30 Barb. (N. Y.) 124; Ab- 
 bot V. .Johnson, 32 N. H 9; Ve<?hte r. The 
 Karitan Water Power Co., 4 C. E. Green 
 
 (N. J.), 142; Bell v. Woodward, 42 N. H. 
 181, 193. A demurrer to a bill for multi- 
 fariousness goes to the whole bill. Boyd 
 V. Hovt, 5 Paige, 65; Mcintosh v. Alexan- 
 der, 16 Ala. 87; White v. White, 5 Gill, 
 359; Bell v. Woodward, 42 N. II. 181, 193. 
 To a bill to foreclose a mortgage of land, 
 and to redeem a prior mortgage of one of 
 the tracts, held by one of the defemliints, a 
 plea was tiled that the plaintiff's mortgage 
 did not cover the tract which was sought 
 to be redeemed, and the bill was therefore 
 multifarious. It was held that the facts, 
 if well pleaded an_d established by the 
 proof, showed the bill to be defective on 
 the ground of multifariousness. Bell v. 
 Woodward, 42 N. II. 181. As to the effect 
 of an answer, denying all the allegations 
 of the bill relating to the mat'er of the 
 plea, upon the plea, see Bell y. Woodward, 
 sujjrn. 
 
 4 1 M. & K. 559. 
 
 fi Bell V. Woodward, 42 N. H. 181, 189; 
 Abbot V. Johnson. 32 N. H. 9. To sustain 
 a demurrer to a bill for multifariousness 
 against several defendants, it is not neces- 
 sary that the defendant demurring should 
 so far answer the hill iis to dcTiy the ordi- 
 nary general charge of cfimbination. Em- 
 ans V Emans, 3 Heasley (N. J ), 205, 207; 
 see Brookes v. Whitworth, 1 Mad. 86; 
 Salvidge v. Hyde, 6 Mad. 138. 
 
 6 Greenwood v. Churchill, 1 M. & K. 
 557; Ohiou. Kllis, 10 Ohio, 456. Where 
 the defendant omits to demur for multi- 
 fariousness, the Court may, sua sponle, take 
 the objection and di-miss the bill; but the 
 Court should not interlere in this way
 
 MATTER OF THE BILL. 
 
 347 
 
 Scandal and 
 impertinence. 
 
 Definition of 
 scandal. 
 
 Great care must be taken, in framing a bill, that it does not Cn. VI. § 4 
 contain statements or charges which are scandalous or imperti- 
 nent:^ for, if it does, it may be objected to by the defendant.^ 
 Any proceeding before the Court may be objected to for scandal 
 or impertinence, and the scandalous matter expunged : with costs 
 to the party aggrieved.^ 
 
 Scandal consists in the allegation of any thing which is unbe- 
 coming the dignity of the Court to hear, or is contrary to good 
 manners, or which charges some person with a crime not necessary 
 to be shown in the cause : * to which may be added, that any un- 
 necessary allegation, bearing cruelly upon the moral character of 
 an individual, is also scandalous.^ 
 
 There are many cases, however, in which, though the words in 
 the record are very scandalous, yet, if they are material to the 
 matter in dispute, and tend to a discovery of the point in question, 
 they will not be considered as scandalous : ® for a man may be 
 stated on the record to be guilty of a very notorious fraud, or a 
 very scandalous action, as in the case of a brokerage bond, given 
 before marriage, to draw in a poor woman to marry ; or where a 
 
 Nothing 
 material is 
 scandalous. 
 
 when the trouble and expense by reason 
 ot multifariousness mislithave been saved 
 bv a demurrer. Cliew v. Bank of Balti- 
 more, U Ml. 299: Oliver r. Piatt, .3 How. 
 U. S. -333, 412; Oiiio v Kilis, 10 Ohio. 456; 
 Story Eq. Pi. §§ 2«4 a. 271 note: Hickman 
 V. Onoke, 3 Humph. (i40 ; Swavze v. 
 Swavz<3, 1 Stockt. (N. J.) 2T3; Rockwell 
 r. Morgan, 2 Beasley (N. J.), 384, 386; 
 Wales V. Xewbould, 9 Mich. 45; Kmans v. 
 Emans, 1 McCarter (X. .1.), 114. But, as 
 stated in note above, the objection of mul- 
 tifariiU'-ness, wheti apitareut on the face of 
 the bill, Clin, in general, be taken only by 
 demurrer; and in such case is waived by 
 not demurring to the bill; but, if it be not 
 api'arent upon the bill, it is open to the 
 defendant (^n his plea, or his answer made 
 cxiire-slv for liie purpose of takiuL' advan- 
 tage of 'it. Bell V. Woodward, 42 N. H. 
 Itil; Veghte i'. The Itarittm Water Power 
 Co , 4 (J. E. Green (X. .).), 142, 145, per 
 t'h.incellor Zabriskie; see Wilson v. Lviit, 
 31) Barl). (X. V.) 124 ; Oliver v. Piatt, 3 
 How. U. S. 333; Avery v. Kelhgg, 11 
 Conn. 562; Cuvler v. .Moreland, 6 I'aige, 
 273; I.nckett ». Wiiite, 10 (iill & .J. 
 4^0; Tliurman v. Shelton, 10 Yersrer, 383; 
 I'.uffalow V. Bulfd'.w, 2 Ired. Cli. 113; 
 t;rove V. Krcsh, 9 Oil! & .1. 280; (;il)bs v. 
 Cloyett. 2 Gill & .1. 14; Brvan v. Hlvtlie, 
 4 Blackf. 249; St..rv lv|. l'i.2H4 a; Veghte 
 t'. The Kiintan Wiiter Power Co., 4 C. K. 
 (ireen (N. .(.), 142. And where the bill 
 Sets forth two disiinct and independent 
 grounds of complaint, the objecti'm of 
 niultilariousness is obviated by the remov- 
 al of one of those gionnds bv the defend- 
 ant aft.r the filing of the bill and before 
 iin^wer. Whitney v. 1,'nion Railway Co , 
 11 Gray, 369; sue Emans v. Emaus, 1 
 
 McCarter {N. .!.), 114; Commerd;\l Mut. 
 Ins. Co. V. .McLoon, 14 Allen, 351; McCabe 
 V. Bellows, 1 Allen, 269. 
 
 1 See 26th Equity Rule of United States 
 Courts, post, 326 no"te, Ap. 
 
 2 Ord. VIII. 2, XVI. 21. 
 
 3 Er-kine t'. Garih^hore, 18 Ves. 114; Ex 
 parte Le Heup, ib. 221, 223; see Storv Eq. 
 PI. § 266 ; Doe v. Green, 2 Paige," 349; 
 Somers v. Torrey, 5 Paige, 64 ; Powell v. 
 Kane, 5 Paige, 265 ; The Camden and 
 Amboy R R. Co. v. Stewart, 4 C. E. Green 
 (X. .J.), 343, 346. 
 
 4 Wyatt's P. R. 38.3. 
 
 6 Per Lord I'^ldon, in Ex pnrte Simpson, 
 15 Ves. 476; and see Coffin v. Cooper, 6 
 Ves. 514; Atwool v. Ferrier, 1 W. N. 276; 
 14 W. R. 1014, V. C W. Facts not ma- 
 terial to the decision arc impertinent, andj 
 if reproachful, are scnnilnlous. Woods v. 
 Morrell, 1 .John. Ch. 103. 
 
 6 Story Eq. PI. § 269. Thus a state- 
 ment in an answer, intrnduced to show the 
 temper with which ii bill is filed, and the 
 oppressive course pur-ued by the plaintilV, 
 is not scandalous or iinp'-rtinunt, iiiasniucli 
 as it may have an etl'ect (ui the costs. 
 Desplaces v. Goris, 1 Edw. Ch 350. So it 
 has been held, that an executor, who is 
 called to account, is not subject to an ex- 
 ce])tion for scandal and impertinence, for 
 saying in his answer, that soint; of the 
 property is withhclil from him under a 
 forged deed possessed by the |il;iintili'; f 'r 
 his silence miglit pn'judice him afierwards. 
 .Jolly V. Carter, 2 Edw. Ch. 209; see So- 
 mers V. Torrev, 5 Paige, 54 ; Itees v Evans, 
 Chancerv, X.V. .Jan. 25, 1841, cited 1 Smith 
 Ch. Pr. (2d Am. el.) 567, note (b). Pcrti- 
 lumt matter cannot bo scandalous. Good- 
 ricii V. Rodney, 1 Min. 195.
 
 34S 
 
 THE BILL. 
 
 Cit.YI. 5 1- 
 
 In bill to re- 
 move trus- 
 tees, not 
 scandalous 
 to impute 
 connipt or 
 viridictivc 
 motives ; 
 
 secus, to al- 
 lege general 
 malice or 
 ]iersoiial hos- 
 tility; 
 
 or to state 
 particular 
 acts of 
 immorality, 
 •which may be 
 proved under 
 general . 
 charge. 
 
 man falsely ri'invsonts liiinself to l\avo a o-rcnt estate, when in fiict 
 lu' is a bankrupt ; or where one man is personated tor another; or 
 in the ease ot" a eonimon elieat, gamester, or shaiper about the 
 town : in these, and many other instanees, the allegations may 
 appear to be very scandalous, and not tit to remain on the records 
 of the Court ; and yet, perhaps, without having an answer to them, 
 tlie party nuiy lose liis right; the Court, therefore, always judges 
 ■whether, though matter be prima facie scandalous, it is or is not 
 of absolute necessity to state it; and if it materially tends to the. 
 point in question,^ and is become a necessary i)art of the cause, 
 and material to the defence of either party, the Court never looks 
 xi])on this to be scandalous.'- Were it otherwise, it would be lay- 
 ing down a rule that all charges of fraud are scandalous : which 
 would be dangerous.^ Upon this principle, therefore, it has been 
 determined, that if a bill be filed by a cestui que trust for the pur- 
 pose of removing a trustee, it is not scandalous or impertinent to 
 challenge every act of the trustee as misconduct, or to impute to 
 him corruj)t or improper motives, in the execution of the trust, or 
 to allege that his conduct is the vindictive consequence of some 
 act on. the part of the cestui que trust, or of some change in his 
 situation.* It is to be observed, however, that in such case it 
 woidd be impertinent, and might be scandalous, to state any cir- 
 cumstance as evidence of general malice or personal hostility, 
 without connecting such circumstance with the acts of the trustee 
 which are complained of: because the fiict of the trustee enter- 
 taining general malice or hostility against the plaintiff, affords no 
 necessary or legal inference that his conduct in any particular 
 instance results from such motive. 
 
 It has been decided, that, under a general charge of inmiorality, 
 evidence of particular instances of misconduct may be introduced.^ 
 Where, therefore, such evidence can be made use of under the 
 general charge, the specific instances should not, if it can be 
 avoided, be introduced into the bill ; thus, it is improper, in a suit 
 which is founded upon the want of chastity in a i)articular indi- 
 vidual, as in cases of bills to set aside securities given twjn con- 
 sideratione, to charge particular instances of levity which might 
 afiect the character of strangers, and. to fill the record with private 
 scandal: because evidence of those particular instances may be 
 given under the generid charge.® 
 
 • 1 Everett v. Prvthergch, 12 Sim. 365, 
 367; B.«. W., 3l"Ue;iv. 342; S. C nom. 
 A. r. B., 8 .Jur. N. S. 1141; Edmands v. 
 Lord Brougham, 1 W. N. 07, V. C S.; 12 
 Jur. X. S. 156, V. C. S. 
 
 2 Giib. For. Rom 207. 
 
 8 Fenhoult't v. Passavant, 2 Ves. S. 24. 
 
 \ Earl of Portsmouth v. Fellow.s, 5 Mad. 
 
 450; and see Anon., 1 M. & C. 78; Lord 
 St. John V. Liidv St. John, 11 Ves. 526, 
 539; Reeves v. Baker, 13 Beav. 436. 
 
 5 See Moores v. Aloores, 1 C. E. Green 
 (N. J.), 275, 277. 
 
 6 Whalev V. Norton, 1 Vern. 483 ; 
 Clarke v. Periam, 2 Atk. 333, 337.
 
 MATTER OF THE BILL. 
 
 349 
 
 From vrhtxt has been said before, it may be collected that, Ch.VL§4. 
 
 although nothing relevant can be scandalous, matter in a bill may ' < -* 
 
 be impertinent without being scandalous.^ Impertinences are Definition of 
 described by Lord Chief Baron Gilbert to be, "where the records ^^'V^'^^^''^^- 
 of the Court are stuffed with long recitals, or with long digressions 
 of matter of fact, which are altogether unnecessary and totally 
 immaterial to the matter in question : as where a deed is unneces- 
 sarily set forth in hcec verbal "^ 
 
 It is to be observed, that neither scandal nor impertinence, hoAV- impertinence 
 ever gi-oss it may be, is a ground of demurrer : it being a maxim of foi"^em^reri 
 pleading that utile 7J>e?' inutile non vitiatur? Where, however, 
 
 1 Fenhonlet v. Passavant, 2 Ves. S. 24 ; 
 Goodiicli V. Rodney, 1 Min. 195; Hood v. 
 Ininan, 4 John. Ch. 437. Impertinence is 
 the introduction of any matters into a bill, 
 answer, or otiier pleading or proceeding in 
 a suit, which are not properly before the 
 Court fir decision :it anv particular stage 
 of the suit. Story Eq. Tl. § 266 ; Wood v. 
 Mann, 1 Sumner,' 506, 578 ; see the 26th 
 and 27th Equity Kules of the Supreme 
 Court of the United States, January I'erm, 
 1842, in Story Eq. PI. § 266. The best 
 te-rt to asciMtain whether matter be im- 
 pertinent, is ti> try whether the subject of 
 the allegation could be put in issue, and 
 would be matter proper to be given in 
 evidence between the parties. Woods v. 
 Morrell, 1 John. Ch. 103. The Court will 
 not, because there are here and there a few 
 unnecessary words, treat them as imper- 
 tinent. Story Eq. PI. § 267; Hawley v. 
 Wolverton, 5 Paige, 522. A bill may 
 contain matter which is im|)ertinent, with- 
 out the matter being scandalous; but if, in 
 a technical sense, it is scandalous, it must 
 be impertinent. Storj' Eij. PI. § 270; 
 Al'Intvre v. Trustees of Union College, 6 
 PaigeJ 239. 
 
 All exception for impertinence will be 
 overrulrd if the exjiunging the matter 
 excepted to will leave the residue of the 
 clause wliich is not covered by the excep- 
 tion, either false or wholly unintelligible. 
 M'Iiit\re V. Trustees Union College, 6 
 Paige," 239. 
 
 '•* (jilb. For. Kom. 209; and see Norway 
 «. Uowe, 1 Mer, 135; Lowe v. Williams, 2 
 S. & S. 574; Hally v. Williams, 1 .M'L & 
 Y. 334; Sliick v. Evans, 7 I'ri. 278, n.; 
 G'.mpertz v. Best, 1 V. & C. Ex. 114, U7; 
 Hyde V. Mastirnian, (,'. & V. 205, 271; 5 
 Jur 043; Attornev-tJeneral v. Ilckards, G 
 Beav. 444, 44'J; \ Phil 383, 386; 7 Jur. 
 362; S. C. num. Hickai'ds v. Attorney- 
 General, 12 CI. & K. 30; » Jur. 3H3; All- 
 frey v Alllrey, 14 lieav. 235; 15 Jur. ^31; 
 Uoiidricli r. Koiln>-y, 1 Min. 195; The Cam- 
 den and Amboy KIJ. (Jo. v. Stewart, 4 (J. 
 P^. (jreen (N. J.), 343. All matters not 
 niuterial to ti,e suit, or, if material, vshicli 
 arc not in issue, or which, if both material 
 and in issue, are set forth with great and 
 unnecessary prolixity, constitute imperti- 
 
 nence. A bill in Chancer}', like a declara- ' 
 tion at Law, should contine its statements 
 to such facts as are proper to show that 
 the plaintift' is entitle! to relief, and which, 
 if proved, will entitle him to relief; and 
 should not set out the evidence, w hether 
 oral or written, by which the facts are 
 to be proved. The Camden and Amboy 
 K R. Co. V. Stewart, 4 C. E. Green (N. 
 J ), 343. In the United States Cnurts, 
 it is required that every bill shall be 
 expressed in as brief aud succinct terms 
 as it reasonably can be, and shall con- 
 tain no unnecessary recitals of deeds, doc- 
 uments, contracts, or other instruments, 
 in luec verba, or any other impertinent 
 matter, or any scantialous matter not rele- 
 vant to the suit. If it does, it may on ex- 
 ceptions be referred to a master by any 
 judge of the Court iiir impertinence, or 
 scan<lal, and if so found by him, the mat- 
 ter shall be expunged at the expense of 
 the plaintiff, and he shall pay to the defend- 
 ant all his costs in the suit up to that 
 time, unless the Court or a judge thereof 
 shall otherwise ordf-r. If the master shall 
 report that the bill is not scandalous or 
 impertinent, the defendant shall be entitled 
 to all ci.sts occasioned by the reference. 
 Equity Rule, 26. • 
 
 In New Hampshire, " Every bill and 
 ansjver shall be expressed as concisely 
 as may be, and no deed, will, agreement, 
 or other writing shall be set forth at length, 
 or annexed to any bill or answer, but sa 
 much of either as is in;iterial, and no more 
 shall be inserted." Rule of Clnincery, 4, 
 38 N. II. 606. " The idle repetitions, ' your 
 orator luriher com])laiiis, ' 'your orator 
 further showeth t(j your Honors,' and 
 the like, in bill.s; ami"' this delen>!ant, fur- 
 ther answering, s;iitli,' and the like, in an- 
 swers, shall be omitted. Where the names 
 of parties are omitted, they shall he referred 
 to as iiliihitiffs or (Itjeiidanls." Rule of 
 Chancerv of N. H. 7. 
 
 3 Sc-e Broom's .Maxims, 602; Story Eq. 
 PI. § 269. If an answer contain scanda- 
 lous or impc'rtincnt matter, it wih be re- 
 ferred, in order that it iimv be expunged 
 at the cost of the parry lifing the answer. 
 Mason V. Mason, 4 Hen. & M. 414; see 
 I.angdon i". Pickering, 19 Maine, 214. The
 
 350 
 
 THE ETLL. 
 
 Cii.VI. § 4. 
 
 how takon 
 advantage of; 
 
 old practice ; 
 
 present 
 practice ; 
 
 exceptions for 
 impertinence 
 abolished ; 
 
 but costs oc- 
 casioned by it 
 may be im- 
 posed, upon 
 application ; 
 
 or disallowed 
 by the Court 
 or Judge, 
 without ap- 
 plication- 
 
 there is scnnd.il in n Mil, the defeiKlant is entitled to have the 
 rocDnl ])urilioil liy ('\]p\m>iin<v the scanihilous matter; and it Avas 
 lonnerly the same witli reference to iinju'rliiu'iit mattci-. Jii order 
 tliat this nii<;ht be done, tlie course lonnerly was ior the defen(hnit 
 to move the Court lor an order to liave the bill referred to a master 
 to report wliether it was scandalous or impertinent. This reler- 
 ence -was obtained of course, and being general, witliout s])ecify- 
 ing the i)ai*ticular passages objected to,^ obviously precluded the 
 party, Avhose pleading was alleged to be scandalous and im])ertinent, 
 from exercising any judgment upon the sid)ject, much less from 
 submitting to have the objectionable passages expunged. To 
 remedy this it was provided by a General Order of the Court, that 
 no order should be made for referring any pleading, or other 
 matter for scandal or impertinence, unless exceptions were taken 
 in Avriting, to the particular passages complained of.'^ 
 
 The practice of excepting to bills, answers, and other pro- 
 ceedings for impertinence has been abolished : ^ the Court may, 
 however, direct the costs occasioned by any impertinent matter 
 introduced into any proceeding, to be paid by the party intro- 
 ducing the same, upon application being made to the Court for 
 that puii^ose : * such application to be made at the time when 
 the Court disposes of the costs of the cause or matter, and not at 
 any other tiine.^ The Court may also, without any application 
 being made, declare that any pleading, jietition, or affidavit, is 
 improper or of unnecessary length: or may direct the taxing 
 master to distinguish what part thereof is improper, or of unnec- 
 essary, length;® and in hke manner, the Judge may disallow im- 
 jicrtinent or unnecessary matter in proceedings in Chambers;'' in 
 
 introduction of scandalous and imperti- 
 nent matter in a bill, does not authorize 
 nor justity similar matter in an answer, 
 ttiougli introduced to meet such impijjper 
 allegations in the bill. Such matter in the 
 bill should be objected to by the defend- 
 ants in the regular way. Langdon v. 
 rickeriiig, 19 Maine, 214; see the Camden 
 and Ambnv K.li Co. v. Stewart, 4 C E. 
 Green (N. J.), 343. 
 
 1 Harr. bv Xewl. 43; 1 T. & V. 519. 
 
 2 3hth Ord. Miij', 1845; Sand. Ord. 998; 
 afterwards the 23d Ord., Nov., IfaSO, was 
 substituted. 12 lieav. xxvii. The ground 
 of tliis order is substantially covered by 
 the 27th J>iuily Rule of the United -States 
 Courts. Kxceptions for scandal or imper- 
 
 •tinence must i)'int out the exceptionable 
 matter witli sufficient certainty to enable 
 the adverse party and the officers of tlift 
 Court to ascertain what particular piirtsof 
 the pleading or proceeding are to be strick- 
 en out, if the exceptions are allowed. 
 M'hitmarsh v. Campbell, 1 Paige, 645; 
 Fraiikliu v. Keeler, 4 Paige, 3i>2 ; see also 
 
 German v. Macliin, 6 Paige, 288. In 
 Maine, exceptions for scandal and imperti- 
 nence may be taken within twenty days 
 after service of the b;ll. Chancery llule, 5. 
 
 3 153' the settled practice in New Jersey, 
 exceptions will lie tor impertinence in a 
 bill, answer, or other ph ading, and in in- 
 terrogatories, depositions, or affidavits in 
 any suit. The Oiuiiden and Ainbov K.U. 
 Co. V. Stewart, 4 (J. E. Green {N. J.), 343, 
 344, 345. But the rule to file exceptions 
 and refer them to a master, is for the re- 
 lief of the Court, and tliey may be heard 
 at his option directlj' by the Chancellors. 
 Ibid. 
 
 4 15 & 16 Vic. c. 86, § 17; seeDufour v. 
 Sigel!, 4 De 0., M. & G. 520, 526. 
 
 5 (»rd. XL. 11. 
 
 6 Ord. XL. 9. As to this Ord. see Moore 
 W. Smith, 14 Huav 396; Maj'orof Perwick 
 V Murray, 7 i'e G., M. & G. 497; 3 Jur. 
 N. S. 1, 5; lit Parrington, 33 Beav. 340; 
 and for form of Order thereunder, see Se- 
 ton 89, No. 17. 
 
 7 Ord. XL. 10.
 
 MATTER OF THE BILL. 351 
 
 the first case, the Court may deal with the costs as may be just ; ^ Ch. TI. § 4. 
 
 and in the second, the costs occasioned in respect of the matter so ""^ y ' 
 
 disallowed to the other party are to be paid by the party on whose' 
 behalf the proceeding was brought in, and his own costs in respect 
 thereof disallowed.^ Exceptions may still be taken to pleadings, Scandal in 
 and other matters depending before the Court, for scandal : they ^-c!*,' before 
 must be in writing^, and signed by counsel,^ and describe 'the ])ar- the Court 
 
 mav be 
 
 ticular passages alleged to be scandalous.* excepted to; 
 
 It appears to have been formerly the opinion that, in cases of Court itself 
 scandal, "the Coixrt itself was concerned to keep its records clean, ™a-n({'^|ij'^us ^° 
 and without dirt or scandal appearing thereon;"^ and in ^x matter. 
 parte Simpson,^ Lord Eldon said that, with reference to the sub- 
 ject of scandal in proceedings, either in causes or in bankruptcy, . 
 he did not think that any application by any person was neces- 
 sary ; and that the Court ought to take care that, either in a suit 
 or in a ]>roceeding in l)ankruptcy, allegations bearing cruelly upon 
 the moral character of individuals, and not relevant to the subject, 
 should not be put upon the record. Any party to the cause may 
 file exceptions for scandal;' hence, a defendant not served with 
 the bill may appear gratis, and file exceptions for scandal ; ^ and 
 one defendant may file exceptions for scandal in a co-defendant's 
 answer.® 
 
 There was formerly some doubt whetber, under any circum- person not a 
 
 stances, a person not a party to the cause could except to any P*"'^J' ^" ^^® 
 
 '1 I J T1111 cause mav 
 
 record for scandal.^° In the case of Williams v. Douglas^^ the except tor 
 
 authorities upon the subject were brought before Lord Langdale gp^"fa1 \qZ^^. 
 M, R., who had to decide upon the question, whether a person 
 not being a party to the cause, who alleged that the bill contained 
 matter at the same time impertinent as between the parties, and 
 scandalous as against him, was, of course, and without leave, en- 
 titled to file exceptions for scandal, with a view to have the scan- 
 dalous and imjjertinent matter expunged.^^ His Lordship said: 
 "There is but little authority on the subject; but from the terms 
 in wliich Lord Bacon's order is expressed, from the dicta of Lord 
 Kidon, expressed in a manner to show tliat he had considered the 
 subject, and from the apparent necessity of the case, there being, 
 as I conceive, no other way of doing effectual justice to an injured 
 
 1 Ord. XL. 9. Auto tbis Ord. see INfoore proreeditiK under the summnry jurisdic- 
 
 r. Siniili, 14 Heav. :ii)0; Mayor of liervvick tioii, see liv (Jornall, 1 Heiiv. 220. 
 
 V. .Murraj', 7 Oe (i., M. & (i. 4K7; i .lur. ' Collin v. Coopi-r, Yes. h\.\\ 13 & 14 
 
 iN. fS. 1, 0. For form i)t Order thereunder, Vic. c. 35, § 27; Ord XVI. 2. 
 
 «ee S'-toii fit), No. 17. * Fell v. Christ's College, Cambridge, 2 
 
 ^ Or.l. XL. 10. Bro. C. C. 27U. 
 
 8 (7nl. XVI. 2; and see Ord. VIII. 1, 2. 'J Coflin « Cooper, 6 Ves. 614. 
 
 * Ord. ,\VI.2. For form of exceptions, i" Ibid.; Anon., 4 Mad. 252; see 6 13cav. 
 
 nee Vol. III. 86. 
 
 6 2 r. Wms. 312, Arg. " 5 Beav. 82, 85; 6 .lur. 879. 
 
 « 15 Ve». 476, 477. As to scandal in a ^ Story ICij. I'l. § 270.
 
 352 
 
 THE BILL. 
 
 Cii.yi. §4. 
 
 Semble, ex- 
 emptions for 
 scandal 
 would not be 
 overruled, if 
 good in part: 
 though bad 
 in part. 
 
 Practical 
 directions as 
 to exceptions. 
 
 Office Copy. 
 
 Time to set 
 down. 
 
 ]i:irty, it would seem tliat the Court must have jurisdiction and 
 autliority lo oxpungc scandal from the record, at the instance of a 
 person \\ ho may not be a party to the cause." His Lordship, how- 
 ever, thought, that a ])erson not a party to tlie record could not ' 
 adopt this ]>roceeding Avithout special leave; and he, therefore, 
 discharged the order then in question, on the ground of its having 
 been obtained ex ^x«*ie. From this case it would appear, that a 
 stranger to the suit can, if the circumstances justify it, obtain the 
 leave of the Court to except to a record for scandal. 
 
 It has been decided tinder the former practice, that in the case 
 of exceptions for impertinence, an exception cannot be partially 
 allowed ; and therefore, if part of an exception be good, and the 
 rest bad, the whole exception must be overruled.^ It has not, 
 it is belieA'ed, ever been so held as to exceptions for scandal; 
 and if the qtiestion should arise, it is conceived that the prac- 
 tice with reference to exceptions for impertinence would not be 
 folloAved. 
 
 Exceptions must be written on paper of the same description 
 and size as that on which bills are printed,^ and be indorsed 
 with the name and place of business of the solicitor and of his 
 agent, if any,^ or with the name and j^lace of residence of the 
 party acting in person,^ by whom they are filed.^ The exceptions 
 must be filed at the Record and Writ Clerks' Oifice,® and notice 
 of the filing thereof be given, on the same day, to the solicitor for 
 the opposite jjarty, or to the j^arty himself if he acts in person ; "^ 
 but if the notice is not given at the proper time, the party will be 
 relieved from the irregularity on payment of costs.^ No time is 
 limited within which exceptions for scandal must be filed. The 
 party whose pleading is excejited to takes an office copy of the 
 exceptions.® 
 
 Exceptions for scandal must be set down for hearing before the 
 Court, ^'^ Avithin six days after the filing thereof, exclusive of 
 vacations : ^^ otherwise, they will be considered as abandoned, and 
 
 1 WagstafF v. Bryan, 1 R. & M. 30; 
 Tench v. Cheese, 1 Beav. 571, 575, and re- 
 porter's note, ibid. ; Byde ri. Masterman, C. 
 & P. 2C5, 272; 5 .jur. 643; Desplaces v. 
 Goris, 1 Kdw. C'h 353. '1 he Court, in 
 cases of itii|jertinence, ought, before ex- 
 punging the matter alleged to be imperti- 
 nent, to be especially clear, tliat it is such 
 as oug'it to be struck out of the record, lor 
 the reason, thiit the error on one side is 
 irremediable, on the other, not. See Davis 
 V. Grii.ps, 2 y. & C. (N. II.) 443; Story 
 Eq. I'l. § 267. 
 
 ■i Ord. March 6, 18G0, r. 16. The paper 
 must be cream-wove, machine-drawn, fools- 
 cap, folio paper, 19 lbs. per mill ream, and 
 have an inner margin about three-quarters 
 of an inch wide, and an outer margin about 
 two inches and a half wide. Ord. IX. 3. 
 
 8 Ord. III. 2, 
 
 4 Ord. in. 5. 
 
 6 For form, see Vol. III. 
 
 6 Urd. XVI. 3." No fee is payable on 
 filing. 
 
 ' Ord. XVI 3. The notice must be 
 served before seven o'clock in the even- 
 ing, except on Saturday, when it must be 
 served before two in the afternoon; or the 
 service will be deemed to have been made 
 on the following day, or on Monday, as the 
 case may be. Ord. XXXVII. 2. ii'orlbrm 
 of notice see Vol. III. 
 
 8 Bradstock v. Whatley, 6 Beav. 61; 
 Lowe V. Williams, 12 Beav. 482; ami see 
 Lord SutKeld c. Bond, 10 Beav. 146, 163. 
 
 'J Ord. XXXVI. 1. 
 
 10 13 & 14 Vic. c. 35, § 27. 
 
 11 Ord. XXXVIL 13 (2).
 
 MATTER OF THE BILL. 
 
 353 
 
 the person by whom sucli exceptions were filed must pay to the Cn. VL § A. 
 
 opposite party such costs as may have been incurred by such " r ' 
 
 party, in respect of such exceptions.^ It is presumed that, in 
 such case, by analogy to the practice where a demurrer or plea, 
 though filed, is not set down for argument,- the opposite party 
 may obtain an order of course, on motion, or on petition at the 
 Rolls, for the taxation of the costs of the exceptions, and.for pay- 
 ment thereof by the excepting party. 
 
 The exceptions must be set down to be heard before the Judge How set 
 to whose Court the cause is attached.^ The Registrar's Clerk at ^°^"^- 
 the order of course seat, will set down the exceptions, on production 
 to him by the solicitor of the party filing them of the Record and 
 "Writ Clerks' certificate of the filing of tlie exceptions, indorsed by 
 the solicitor with a request for that purpose.* The exceptions will 
 then be put in the paper of such Judge, for hearing on an early 
 day ; and on the day on which the exceptions are so set down, 
 notice thereof must be served pn the party whose pleading or other jjotice of 
 matter is excepted to : otherwise the exceptions will be deemed setting down, 
 not set down.* 
 
 Exceptions will not be allowed to stand over to an indefinite Exceptions 
 
 • -1 ft cannot stand 
 
 Peri0d.« overindefi- 
 
 As tliis is the first occasion upon which it has been necessary niteiy. 
 to refer to the time allowc<l in procedure, it will be convenient to General rules 
 
 , . 1 • 1 • 1 , as to compu- 
 
 statehere some general rules concernnig the manner m which such tation oftime. 
 periods are to be computed. 
 
 Where any limited time, from or after any date or event, is i^i,„itc(i time, 
 appointed or allowed for doing any act or taking any proceeding, 
 and such time is not limited by hours, the computation of such 
 limited time is not to include the day of such date, or of the 
 happening of such event, but is to commence at the beginning of 
 the next following day ; and the act or proceeding is to be done 
 or taken at the latest on the last day of such limited time, accord- 
 ing to such computation.'' 
 
 Where the time for doing any act or taking any proceeding is Months. 
 limited by months, not expressed to be calendar months, such time 
 is to be computed by lunar months of twenty-eight days each.* 
 
 1 Onl. XVI. 20. Similar provision* are ^ Ord. VF. 4. 
 made fur seciirinp an early ilecisidn of ex- ■• Ord. XVI. 10; Keg. Rcgul. 15, March, 
 ceptioii'* lor scandal or impertinence in the 18G0, rr. 1, 5. For form of request, see Vol. 
 27th Equity Kule of the United States III. 
 
 Courts. It Bccms that the party whose <> Ord. XVI. 10. The notice must be 
 
 pleading is excepted to may, if he desires given as directed by Ord. XXXVII. 2, 
 
 It, obtain an order of course to set the ex- (tnle, p. .352, n. 7. For form of notice, see 
 
 ceptions down before the expiration of the Vol. ill. 
 
 BIX (lays. Covle 1-. Alleyne, 14 Beav. 171. c Ord. XXI. 13. For further informa- 
 
 2 See Onl. 5CI V. 14, 15, 17 ; Seton, 1257; tion as to exceptions, acajKist, Cliap. XVII. 
 and ptisl. Chap. XI V. § 4, I)emitrrers ; and § 4, Kxceplinns to Answers. 
 Chap. \V. § 4, /'/en«. For forms of mo- 7 Ord. XXX VII. 9. 
 tion paper and petition, Bee Vol. III. * Urd. XXXVII. 10. 
 
 VOL. I. 23 
 
 not limited 
 by hours.
 
 ao-i 
 
 THE BILL. 
 
 rti. VI. § 4. 
 
 nays on 
 •which offices 
 closed : when 
 not reckoned. 
 
 l*lxce]itions 
 for scandal 
 may l>e taken 
 at anv time. 
 
 Scandalous 
 matter: how 
 expunged ; 
 
 when to be 
 expunged. 
 
 Scandal in a 
 proceeding at 
 Chambers, 
 how objected 
 •to. 
 
 Wlicro tlio tiiuo lor doiiin' ;iny net or takiiiL!,' any j)roeco<ling 
 o\|>iiH's oil a Smiilay or otluT day on \\liicli tlic offices ni"e closed, 
 and by ri'ason tluMcot' such act or j)rocc'oding cannot be done or 
 taken on that day, siicli act or ))roceeding is, us far as regards the 
 time of doing or taking the same, to be liehl to l)e (hily (h)ne or 
 taken, if (h)ne or taken on the (hvy on which tlic offices sliall next 
 open : ^ and where any time limited is less than six days, Sundays 
 and other days on which the offices are closed (except Monday and 
 Tuesday in Easter week), are not to be rcckoned.'- 
 
 Exceptions for scandal may be taken at any stage of the siiit.^ 
 It is to be noticed, tliat in Lady Abergavenny v. Lady Aber- 
 gavenny^ Lord King discharged an order obtained for referring a 
 bill for scandal after answer: intimating, that it should be observed 
 as a rule, for the future, not to refer a bill for scandal after the 
 defendant had submitted to answer it ; but his Lordship's deter- 
 mination to alter the old practice of the Court in this respect does 
 not appear to have been adhered to,^ 
 
 U})on the production of an order allowing exceptions for 
 scandal, it is the duty of the officer, having the custody or charge 
 of the pleading or other matter, to expunge such parts thereof as 
 the Court has held to be scandalous;® and when he has so done, 
 he usually writes a memorandum in the margin of the document, 
 opposite the ex2:)unged passages, to the effisct that tlie same have 
 been expunged pursuant to order, adding its date, and signs the 
 memorandimi. If an office copy of the document has been taken 
 at the Record and Writ Clerks' Office, it will be amended, without 
 fee, on being left there for that purpose.'^ 
 
 Where a bill had been held scandalous, the Cotu't refused to 
 hear a motion for an injunction until the scandalous matter had 
 been expunged.* 
 
 Where scandalous matter has been introduced into any pro- 
 ceedings at Chambers, any party wishing to complain of it should 
 take out a summons for the Judge to examine such matter; and, 
 if scandalous, the Judge may cause it to be expunged.^ 
 
 1 Ord. XXXVII. 12. 
 
 2 Ord. XXXVII. 11. 
 
 8 Ellison i". Burgess, 2 P. Wms. 312 n.; 
 Anon., 5 Ves. 656 ; Fenhoulet v. Pflssavant, 
 2 Ves. S. 24; Anon., ih. 631; Barnes «. 
 Saxbv, 3 Swanst. 232, n. ; Everett v- V\y- 
 thergch, 12 Sim. 363 ; Booth v. Smith, 5 
 Sim. 639; Stor>- Eq. PI. § 270; Avck- 
 bourne Ch. Pr. (Lond. ed. 1S44) 197, "198; 
 Anon., 5 Sumner's Ves. 656, and cases 
 cited in note; 1 Smith Ch. Pr. (2d Am. 
 ed.) 569, 570. 
 
 4 2 P. Wms. 311; see also Jones v. 
 Langham, Bunb. 53. 
 
 ^ Anon., 2 Ves. S. 631; Anon., 5 Ves. 
 656; see also Woodward v. Astlev, Bunb. 
 304; Everett r. Prythergch, 12 Siin. 363. 
 
 ^ Ord. XVI. 21. No tee is paj-abie. For 
 
 cases where scandalous or irrelevant docu- 
 ments have been ordered to be taken otF 
 the file, ?ce, by consent, Tiemaine v. Tre- 
 maine, 1 Vurn. 189; .lewin w. Taylor, 6 
 Beav. 120; Walton v. Broadbent, 3 Hare, 
 334; Clifton?;. Bentall, 9 Beav. 105; Jlake- 
 peace v. Komieux, 8 W. K. 687, V. C. K.; 
 and without consent, Goddard v. Parr, 24 
 L. J. Ch. 783; 3 VV. K. 633, V. C. K. ; 
 Kernick v. Kernick, 12 W. K. 335, V. C. 
 W.; and for costs, in such cases, see 7ta; 
 parte. Simpson, 15 Ves. 476. 
 
 7 Braithwiiite's Pr. 132. 
 
 ** Davenport v. Davenport, 6 Mad. 251; 
 and see Coyle v. Alleyne, 14 Beav. 171. 
 
 'J Ord. .Jf XXV. 60. Eor form of sum- 
 mons, see Vol. III.
 
 FOKM OF THE BILL. 355 
 
 As a general rule, the costs occasioned by scandalous matter, Cn. VL § 5. 
 and of the application to have it expunged, follow the decision; 
 but they should be asked for when the appKcation is lieard.^ 
 
 Section V. — The Form of the Bill. 
 
 Having thus endeavored to point out the matter of which a 
 bill in Equity ought to consist, it remains to direct the reader's 
 attention to the form. 
 
 . The form of an original bill commonly used, previously to the Bills were 
 late Act, according to the analysis of Lord Redesdale,^ consisted n""™™!? ^'^ 
 of nine parts: some of which, however, were not essential, and till late Act. 
 might be used or not at the discretion of the pei'son who prepared 
 it.^ These nine j^arts were as follows : — 
 
 I. The address to the person or persons holding the Great 
 Seal. 
 
 II. The names and addresses of the parties complainant. 
 
 III. The statement of the plaintift"'s case, commonly called the 
 stating part. 
 
 IV. The charge that the defendant unlawfully confederated 
 with others to deprive the jjlaintiff" of his right. 
 
 V. The allegation that the defendants intend to set up a par- 
 ticular sort of defence, the reply to which the plaintiff anticipates 
 by alleging certain facts which will defeat such defence. This 
 Avas usually termed the charfjing ]ku% from the circumstances that 
 the plaintiff's allegations were usually introduced by way of charge, 
 instead of statement. 
 
 VI. The statement that the plaintiff has no remedy Avithout the 
 assistance of a Court of Equity : which Avas termed the averment 
 of jurindli^tion. 
 
 VII. The interrogating ^)ar?, in Avhich the stating and 
 charging part Avere converted into interrogatories, for the pur- 
 pose of eliciting from the defendant a. circumstantial discovery, 
 upon oath, of the truth or filschood of the matters stated and 
 charged. 
 
 VIII. Thaprager of relief adapted to the circumstances of the 
 case. 
 
 IX. The prager that pt-oces.s inight issue, recpiiriiig the defend- 
 ant to ajtjicar and answer tlic liill; to wliicli sonu-tinies Avas 
 
 » Miiscoft V. HiillicH, 4 Ilro. ('. C. 222; piirtv. Kdiminds v. Lord Brouffliam, 1 W. 
 Jod.lrell I'. Jo.ldr.dl, 12 l5.-av. 210. The N. <J;J, V. ( '. S. 
 cobts urc taxeil us between party and ^ lA. UrA. 42. 
 
 8 Ld. Red. 47.
 
 356 
 
 THE BILL. 
 
 t^ii. Vi.§5. added :i prayer for a provisional writ, sncli as an injunction or a 
 711' i'.x'cat 7'c</)io, lor tlu' purpose of restraininjjf some ])r()ceedin<ifs on 
 the part of the »k'len(hint, or of ])reventint;- liis i^oinijf out of the 
 jurisdiction till he had answered the bill. And as aL!;ainst some 
 of the (h'fendants, this jiart sometimes contained a ])rayer that 
 such parties iiiinht, upon heint;- served witli a co})y of the bill, be 
 bound by all the proceedings in the cause.^ 
 
 Statiiton- 
 pmvision as 
 to form ot'liill. 
 Bills to con- 
 tain concise 
 narratives, 
 divided into 
 paragraphs. 
 
 Bills now 
 usually of 
 four parts. 
 
 The form of a bill has, however, been materially altered by the 
 Chancery Amendment Act of 1852, by Avhich, as we have seen,^ 
 it is enacted that every bill "should contain, as concisely as may 
 be, a mirrative of the material facts, matters, and circumstances,, 
 on which the jdaintiti" relies : such narrative being divided into 
 paragraphs, numbered consecutively: and each paragraph con- 
 taining, as nearly as may be, a separate and distinct statement or 
 allegation,^ and shall pray specifically for the relief which the 
 plaintitf may conceive himself entitled to, and also for general 
 relief" * 
 
 A bill, as ordinarily framed, may now be said to consist of the 
 firf t, second, third, and eighth parts above enumerated only ; the 
 charging part is, indeed, still occasionally inserted, but it is rather 
 as })art of the narrative than as a separate part, and the allegations 
 are, by most draftsmen, introduced as statements, and not by way 
 of charge ; so that practically, this part may now be considered as 
 included in the stating ])art.^ The averment of jurisdiction is also 
 still sometimes inserted, but it may also, when inserted, be con- 
 sidered as a portion of the stating part. The fourth part, or charge 
 of confederacy, gradually became disused, and is now universally 
 omitted ; the seventh, or interrogating part, is now omitted by 
 exjjress enactment ; ® and the ninth part, or prayer for process, is 
 also omitted : the writ of subjyoetia to appear and answer the bill 
 having been abolished.'' The prayer for an injunction, or a ne exeat 
 regno, or that certain fonnal parties may be bound upon being 
 served with a copy of the bill, is inserted when it fornis part of 
 the relief adapted to the circumstances of the case ; l)ut then it 
 proi)erly forms a portion ^f the eighth part.^ 
 
 1 This is still so, Ord. X. 11; see ^w.sf. 
 Chap. VII. § 1, Sei-vice of a copy of the bill 
 on t ormal Defendants. 
 
 2 Ante, p. .'51.3. 
 
 8 See Statutesof Iowa, Revision of 1860, 
 Pt. 3, c. 122, §§ 2875, § 9, p. 510. 
 
 4 15 & IG Vic. c. 86, § 10; and see form 
 of bill, as given by Ord. IX. 2, and .Sclied. 
 A., post, Vol. III. The present form of 1)111 
 appears to be a rettirji to the more iincieiit 
 form; see P;irtridge v. Ilavcraft, 11 Ves. 
 574. The fact that the frame of a bill is 
 unusual, and without a precedent, does not 
 alone constitute an objection to the relief 
 
 sought, if it can be supported upon prin- 
 ciple. Yauger v. Skinner, 1 McCarter 
 (N. -J.), .389, 395. 
 
 5 See Mansell v. Feenej', 2 .J. & II. 313, 
 318 
 
 6'l5& 16 Vic. c. 86, § 10. 
 
 V Jb. §2. 
 
 8 Every bill is intituled " in Chancery," 
 marked with the name of the judge before 
 wliom it is intended to be set down, and 
 headed with the names of the parties as 
 plaintiffs and defendants; see post, § 7, 
 Printing andjiliny tht bill.
 
 FORM OF THE BILL. 
 
 357 
 
 The attention of the reader will, therefore, be confined to the Ch. VL § 5. 
 four parts above enumerated, as the distinct parts of which a bill 
 now consists. 
 
 1. Address of the Bill. 
 
 Every 1)111 must be addressed to the person or persons who have 
 the actual custody of the Great Seal at the time of its being filed :^ 
 unless the seals are in the Queen's own hand, in which case the bill 
 must be adckessed " To the Queeiis Most Excellent Majesty in her 
 Sigh Court of Chancery P ^ 
 
 If the Lord Chancellor or Lord Keeper himself be a i)arty, the 
 bill must, in like manner, be addressed to the Queen ;^ but in all 
 other cases, including a case where the Master of the Rolls is a 
 party,* the bill must be directed to the Lord Chancellor, or other 
 person having the custody of the Great Seal. 
 
 Upon every change in the custody of the Great Seal, or altera- 
 tion in the style of the person holding it, notice of the form in 
 which bills are to be addressed is put up in the Record and Writ 
 Clerks' Office. 
 
 Address of 
 the bill: 
 
 when holder 
 of Great Seal 
 sues, or is 
 sued. 
 
 Notice of 
 change of 
 style. 
 
 2. Names and Addresses of the Plaintiffs. 
 It is not only necessary that the names of the several plaintiffs Name and 
 in a bill should be correctly stated, but the description and place j'^inUff must 
 of abode of each plaintiff must be set out, in order that the Court be correctly 
 and the defendants may know where to resort to compel obedience 
 to any order or 2)rocess of the Court, and particularly for the pay- 
 ment of any costs which may be awarded against the ])laintiffs, or 
 to punish any improper conduct in the course of the suit.*^ 
 
 1 In the United States the address of the 
 bill is to the Court from wliich it seeks re- 
 lief, by its appropriate and technical de- 
 Bcriptjon. and the Ad'lresa must be varied 
 accordinply. Story I'.t). I'l § 2G. In the 
 Circuit Courts of the United States bills are 
 addressed "Tothe Judges ot tlie Circuit 
 Couitof the United States fur the District 
 of," &c. U. States C'Uirt Kquity liule, 20; 
 Story \-.(\. I'l. § 26. In Ma-.siichusettsand 
 Maine the bill is addressed "To the Hon- 
 orable the .Justices of the Su[ireme .Iu'li<ial 
 Court." In New Ilanipshire, the addnss 
 
 i.s: "U ss. To the Supreme .Judicial 
 
 Court." Chancery Hule, 2. In New .Jer- 
 ?ey, "To tlie Iloiioralile A. O. Z., Ciian- 
 cellor of the State of New .Jersey." In 
 Vermont, "To tlie llonoralde A. H ,<'lian- 
 ccllorot the First [oc seconcf, (Sv:c.J .ludiclal 
 Circuit." 
 
 '- 2 West. Syinli. 104, 1). For forms of 
 addres.H, sec V(d. III. 
 
 a 4 Vin. Al). .3^:,; Leg .Tnd. in Ch. 44, 
 258; .lud Aiilh. M li. 170, 1S2; I,.l. lied. 
 7; Co'>p. lv|. I'l. 2.'i. Hraithwaite's I'r. 
 20. In 1 I'rax. Aim. 403, is a precedent 
 
 of a bill by Lord Clinncellor .Jofleries, ad- 
 dressed to the King's Most Excelleut Ma- 
 jesty, and ])raying his Majesty to grant tlie 
 usual process of Sii/j/xv.mi ; and in Vol. II. 
 of the same Ijook, 310, Is to be found iin 
 answer to the same l)ill. The linal decree 
 in such cases is, " Jit/ the Queen's Mosl 
 J'.xcelknt Mdjesly, in lier I/i(/h Court of 
 Cliiiiiccry," and is signed by her. Leg. 
 .Jud. in (;h. 254, 256. In Lord Keeper v. 
 Wyld,. 1 Vern. 1.39, wiiere Lord Keeper 
 (luildford and otiiers were plaintilfs, the 
 Master of the Molls and one of the Chief 
 .Justices sat to decide tlic cause. Coup. Eij. 
 ri. 2.3. 
 
 "• Sec Leg. .Tud. in Cli. 44, where it is 
 'stated that in the bilndh; of Chancery pa rch- 
 menls in the 'Idwer, there is a hill hy .More- 
 ton, Keeper of the Kdlls, directed' t" tlio 
 Wight l.'iv. i'.'itiier in God, lioliert, Hisliop 
 of iJalhand W.dls. ('nop. K(|. I'l. 2.3, n. (y)- 
 
 '' Ld. U(!d. 42; and see, as lo what is a 
 sudicient descriptfon, Grillith v. Iticketts, 
 5 Hare, 1!).'); Sibbcring J', llarl of IJalcnr- 
 ra«, 1 I)e (i. it S. 6ha; 12 Jur. 108. In 
 the United States Courts, every bill in the
 
 358 
 
 THE BILL. 
 
 til. VI. 5 
 
 unless mere 
 error. 
 
 It si'i'iiis tliMt ;i (U'liuinrr will Wv to a 1)111 wliicli docs not state 
 the ])l;u'o of abode of the ]>laiiititlV •■"i<l that if the hill describes 
 the ])laiiititf as rcsidinn" at a Avroiiy- jdace, the fact may he taken 
 advautane of hy plea: thoiiuh a defendant cannot ))ut in such a 
 plea, after a dcinurri'r, njion the same ground, has been overi'uled, 
 without leave ol' the Court.- 
 
 The modei'u ])ractice, however, in such cases, is not to demiu", or 
 plead to the bill, but to apply by special motion or summons,'^ on 
 notice to the plaintiif, that he may give security for costs, and that 
 in the mean time proceedini's in the suit may be stayed.'' Thus, in 
 >Sh)ipso/i X. Jiurton,^ Lord Langdale M. K. said : "There can be no 
 doubt, that it is the duty of a plaintiff to state his place of resi- 
 dence, truly and accurately at the time he files his bill ; and if, for 
 the purpose of avoiding all access to him, he wilfully misrepresents 
 his residence, he will be ordered to give security for costs. I do 
 not think the rule extends to a case Avliere he has done so inno- 
 cently, and from mere error." ^ It is to be observed that, in this 
 case, all the plaintiffs were incorrectly described in the bill ; but 
 there does not appear to be any decision u^ion the point, where 
 there liaA'e been several plaintiffs, one or nioi'C of whom are cor- 
 
 introfhictorv part thereof, shall contain the 
 names, pliices of abode, and citizenship, of 
 all the j)arties, plaintitl's and defendants, 
 by and against whom the bill is brought. 
 
 Thus: "A. 15., of , and a citizen of 
 
 the Stiite of , brings this, his bill, 
 
 asainst C D., of , and a citizen of the 
 
 State of , and E. F., of , and a 
 
 citizen of the State of •. And," &c. 
 
 Equity Rule, 20. See Story Eq. PI. § 26; 
 1 Smith Ch. Pr (2d Am. ed.) 82, 8-3 ; Dodge 
 V. Perkins, 4 Ma.son, 43.5. It is indispen- 
 sable in all cases where the right to bring 
 the suit in the Courts of the Ilnited States 
 is founded on the fact, that the plaintilfs 
 and defendants are citizens of different 
 States, to allege that fact distinctly in the 
 bill. See Bingham v. Cabot, 3 Dall. 382; 
 .Jackson v. Ashton, 8 Peters, 148. In New 
 Ilamifshire, " every bill in the introductory 
 part shall contain the names, places of 
 abode, and proper description of all the 
 parties, plaintitls and defendants, by and 
 against whom the bill is brought. The 
 form in substance shall be as follows : 
 ' A. 15., of, &c., complains against (J. D., 
 of, &c., and E. F., of, &c., and savs,' " &c. 
 (Jhancery Uule, 2, 38 N. H. 60.5. " 15y Rule 
 1, " The name of the county in which a, 
 suit in Equity ma}- be brought shall be 
 written in the upper margin of each pro- 
 ceeding; and the words in said county 
 shall refer to the county in the margin, 
 unless the contrarj- appears." 38 N. H. 
 605. A demurrer will be sustained to a 
 bill in Equity where one of the parties is 
 stated to be a private corporation, if it is 
 not described in substance as a corpora- 
 tion established by law in some State, and 
 
 transacting its business in some place, but 
 the defect may be amended. The Winni- 
 piseogee Lake Co. v. Young, 40 N. II. 420. 
 
 1 Winnipiseogoe Lake Co. v. VVorster, 
 29 N. H. 443; Winnipiseogee Lake Co. v. 
 Young, 40 N. H. 420. 
 
 ^ Rowley t'. Eccles, 1 S. & S. 511 ; Smith 
 V. Smith, kay Ap. 22. In Bainbrigge v. 
 OrtoM, 20 Beav. 28, however, Sir .John 
 Komilly M. R. appears to have doubted 
 whether such a plea can be maintained; 
 and if such a plea is bad, so, it is appre- 
 hended, would a demurrer be, where no 
 address is stated. It is to be observed 
 that, in Rowley v. Eccles, the demurrer 
 was overruled, and in Smith v. Smith the 
 plea disallowed. See, however, Sibbering 
 V. Earl of Halcarras, nbi sup. 
 
 3 Tynte v. Hodge, 2 ,J. & H. 692. 
 
 4 Sandys v. Long, 2 M. & K. 487; see 
 also Bailey v. Guiulry, 1 Keen, 53; Camp- 
 bell V. Andrews, 12 Sim. 578; Bainbrigge 
 ». Orton, 20 Beav. 28; Hutchinson v. S wilt, 
 13 W. R. 532, L. JJ.; Howe v. Harvey, 8 
 Paige, 73; 1 Smith (Jh. Pr. (2d Am. ed.) 
 557, and note. For forms of notice of mo- 
 tion and summons, see Vol. III. 
 
 5 1 Beav. 556. 
 
 See also Watts v. Kelly, 6 W. K. 206, 
 V. C. W.; Smith v. Cornfoot, 1 De G. & 
 S. 684; 12 Jur. 260; Griffith v. Ricketts. 5 
 Hare, 195; Player v. Anderson, 15 Sim. 
 104; Manby v. liewickc, 8 De G.. M. & G. 
 468; 2. Jur. N. S. 671; Kerr v. Gillespie, 
 7 Beav. 269; Knight v. Corv, 9 Jur. N. S. 
 491; 11 W. R. 254, V. C' W. ; Dick v. 
 ISIunder, 11 .Jur. N. S. 819; 13 W. R. 1013, 
 M. R., where the plaintiff was allowed to 
 amend, instead of giving security'.
 
 FORM OF THE BILL. 
 
 359 
 
 rectly described, and the rest not so. It is presumed, however, 
 from analogy to the practice where there are several plaintiffs, one 
 only of whom is resident abroad,^ that the Court would not, in 
 such case, require those plaintiffs who are not properly described 
 to give security. 
 
 Where a bill is filed on behalf of an infant, or person of unsound 
 mind not so found, it is not necessary or usual to describe the 
 plaintiff by his place of abode ; ^ because an infont or person of 
 unsound mind is not responsible either for costs or for the conduct 
 of the suit ; the description and place of abode of the next friend 
 must, however, be set out.^ In the case of a married woman suing 
 by her next friend, it is usual, but not essential, to set out the ad- 
 dress of the married woman, but the address of the next friend 
 must be stated ; * and where a married woman sues as a feme sole, 
 that fact must be stated in this part of the bill. 
 
 The address of a peer of the realm or of a corporate body, suing 
 as plaintiff, need not be stated in the bill.* 
 
 A plaintiff in a cross-bill is not required to give security for costs 
 on the groun<l of insufficient description of residence.^ 
 
 The defendant should apply that the ])laintiff may give security 
 for costs as soon as he becomes aware of the fact that the plaintiff's 
 addi-ess is incorrectly stated in the bill ; and if the defendant takes 
 any active stejxs in the cause after he becomes so aware, and before 
 ap])lying, it will be a waiver of his right to security." 
 
 The Order,* by which the penal sum in the bond to be given by 
 the plaintiff by way of security for costs is increased from 40/. to 
 100/., only speaks of cases where, the plaintiff is out of the jvuis- 
 <liction. It has, hoAvever, been decided that it a])])lies to the case 
 now under consideration, and to all other cases where security for 
 costs is required.^ 
 
 Where a plaintiff sues as executor or administrat(»r, it is not nec- 
 essary so to describe himself in this part of the I/ilI: though, as we 
 have seen before, it is necessary that it should a])pear in the stating 
 part that he has duly proved the will or obtained administration, 
 as the case may be.^** 
 
 Ch. VI. § 6. 
 
 Address of 
 person suing 
 by a next 
 friend need 
 not be given, 
 but address of 
 next friend 
 must be 
 stated. 
 
 Peers and 
 Corporations. 
 
 Plaintiff in 
 cross-bill not 
 required to 
 give security. 
 
 Application 
 for security 
 for costs, 
 should be 
 made without 
 delay. 
 
 Amount of 
 security. 
 
 Executor or 
 administrator 
 need not so 
 doscril)e 
 himself. 
 
 1 See ante, p. 28. 
 
 2 IJniithwiiite's I'r. 25 ; see forms in Vol. 
 III. 
 
 3 This is not altered by tlie chrinf;e in 
 practice, which rc<|uircs ii written auiiior- 
 ity from tlic next friend to be tiled witli 
 the bill. Major v. Arnott, 2 .lur. N. S. 80, 
 V.C K 
 
 * 15raithwaite'8 Pr. 21, 25. If the next 
 friend of a plaiiitifl' be undcscribed in the 
 liill, he may, on npi-cial a[)plicatioi) by mo- 
 tion or summons, be ordered to fjive secu- 
 rity for co>*t'<; Hce Kerr v. GilK-spie, and 
 Watts V. Kelly, uhi fii/>. l-'or forms of no- 
 tice of million and summons, see Vol. 111. 
 
 6 Uruilhwaite's Pr. 26. 
 
 G Wild )•. Murrny, 1 8 .lur. 892. V. C. W. ; 
 see nl-io Vincent v. Hunter, 5 Hare, 320; 
 Watteeu v. I5ilhim, 3 De G. & S. 516; 14 
 .Jur. 11)5; Sloggett v. Viant, 13 Sim. 187. 
 
 ■^ Swaii/.y V. Swanzy, 4 K. & J. 237; 4 
 .lur. N. S. 1013. 
 
 » Ord. XL. 6. 
 
 " IJailey V. Ciundrv, 1 Keen, 63, 57; but 
 see Atkins v. ("ook,'3 .lur. N. S. 2H3, V. 
 ('. K.; Pavtington )•. JJeynoIds. <; \V. U. 
 307, \'. <;. K., where it w'an held that, in 
 the case of a iietition, 40/. is the proper 
 amount. For more on tiio subject of secu- 
 ritv for costs, see uute, pp. 27-37. 
 
 io Anle,pf. 318, 31'J.
 
 31)0 
 
 TIJE BILL 
 
 C'li. VI. § 
 
 Facts n.iist 
 be alleired 
 positivtly; 
 
 except facts 
 conceriiinfj 
 whichdii-crv- 
 ery is sought. 
 
 Wl\eiv a plaiiiliir suos on lu'liall" of himscU' and of otliovs of a 
 similar i-lass, it should be so statiMl in this ])art oCtlu' bill ; and the 
 omission of sueh a statement will, in many eases, render a bill 
 liable to objeetion for want of parties,^ and in other cases will 
 deprive the j)laintiiV of his right to the Avhole of the relief which 
 he seeks to obtain. Thus, iu the case of a single-bond creditor 
 suing for satisfaction of his debt ovit of the personal and real estate 
 of his debtor, and not stating that he sues "on behalf of himself 
 and the other specialty creditors," he can only have a decree for 
 satisfaction out of the personal estate in a due course of adminis- 
 tration, and not for satisfaction out of the real estate.^ 
 
 3. Stating Part. 
 
 With respect to the manner in which the ])laintiff's case should 
 be presented to the Court, it is to be observed, that whatever is 
 essential to the rights of the ])laintiiF, and is necessarily within his 
 knowledge, ought to be alleged jiositively : ^ and it has been deter- 
 mined, u])ou demurrer, that it is not a sufficient averment of a fact, 
 in a bill, to state that a plaintiff "is so informed;"* or to say that 
 one defendant alleges, and the plaintiff believes, a statement to be 
 true ; ^ nor is an allegation, that the defendant sets up certain pre- 
 tences, followed by a charge that the contrary of such pretences is 
 the truth, a sufficient allegation or averment of the facts which 
 make up the counter statement.'' 
 
 The claims of a defendant may be stated in general terms, and 
 if a matter essential to the determination of the plaintiff's claim 
 is charged to rest within the knowledge of a defendant, or must 
 of necessity be within his knowledge, and is consequently the sub- 
 ject of a part of the discovery sought, a precise allegation is not 
 required." 
 
 1 Ante, p. '237. 
 
 2 Bedford v. Leigh, 2 Dick. 707; May v. 
 Sell)v, 1 Y. & C. <■. C. 235; Connolly v. 
 M'Dermott, 3 Jo. & Lat. 260; Ponsford v. 
 Hartley, 2 J. & H. 736; Johnson v. Comp- 
 ton, 4 Sim. 47; anie^ p. 235. If, however, 
 a defect of this description appear at the 
 hearint^, the Court -will allow the case to 
 stand over, with liberty to the plaintiff to 
 amend, ih'id. ,• Biscoe v. Waring, llolls, 7 
 Aug., 1835, MS.; see Storv E(i. PI. § 100, 
 note; Casby r. Wickliffe, 7 B. Mon. 120. 
 Or the bill ma}- be ordered to be taken 
 as a bill on behalf of the other creditors. 
 Woods V. Sowerby. 14 W. K. 9, V. C. W. 
 
 3 Ld. Ived. 41;"l)arthez v. Clemens, 
 Beav. 165, 169; Mundav v. Knight, 3 
 Hare, 497, 502; Padwick v. Hurst, 18 
 Beav. 675; 18 Jiir. 763; Baiiibri"ge v. 
 Moss, 3Jur. N. S. 58, V. C. W.; Duck- 
 worth V. Duckworth, 35 Ala. 70; Moran 
 V. Palmer, 13 Mich. 367; Mclntyre v. 
 Wright, 6 Paige, 239. An allegation in a 
 bill that the plaintiff " has been informed 
 
 and believes, and therefore avers," is a 
 sufficientlv positive averment. Wells v. 
 Bridgeport, &c. Co., 30 Conn. 316. The 
 pleader should aver the fact on his infor- 
 mation and belief, and not his information 
 and belief that the fact exists. Nix v. 
 Winter, 35 Ala. 309. 
 
 4 Lord Uxbridge v Staveland, 1 Ves. S. 
 56; Lucas V. Oliver, 34 Ala. 626; Cameron 
 V. Abbott, 30 Ala. 46; Jones v. Cowles, 26 
 Ala. 612. 
 
 5 Kgremont v. Cowell, 5 Beav. 620, 622; 
 Hodgson V. Kspinasse, 10 Beav. 473; Nix 
 V. Winter, 35 Ala. 309. 
 
 6 Flit t v. Field, 2 Anst. 543; Houghton 
 V. Ptevnolds, 2 Hare, 267; 7 Jur. 414. 
 
 ' Ld. Red. 42; Aikin v. ]5allard. Rice 
 Ch. 13; Story Eq. PI. § 255. A bill in 
 F.quiiy, brought by a partner against his 
 copiirtner, for an account, tK:c , wherein it 
 is averred that the defendant has all the 
 partnership books and papers in his pos- 
 session, or under his control, and refuses to 
 permit the plaintiff' to examine them, need
 
 FORM OF THE BILL. 
 
 361 
 
 In general, however, a plaintiff must state upon his bill a case Ch. VL § 5. 
 
 upon which, if admitted by the answer, or proved at the hearing, " ^^ ' 
 
 the Court could make a decree i^ and, therefore, where a bill was Sufficient 
 
 -, „ . i T A • must be 
 
 filed to restram a defendant li-om setting up outstandnig terms, m averred to 
 
 bar of the plaintiff's right at law : not stating that there were any io'"i'i decree, 
 outstanding terms or estates, but merely alleging that the defend- 
 ant threatened to set up some outstanding tenu, or other legal 
 estate, Su- Lancelot Shadwell V. C. allowed a demurrer, on the 
 
 not contain such certainty and particu- 
 larity of statement as would be held nec- 
 essary if the plaintiff had access to those 
 books and papers. Towle v. Pierce, 12 
 Met. 329 ; Crockett v. Lee, 7 Wheat. 522 ; 
 Storv Eq. PI. § 257; Knox v. Smith, 4 
 How. U. S 298: Capel r. McCoUum, 27 
 Ala. 461 ; Miller v. Thatcher, 9 Texas, 482; 
 Jones t". Brinker, 20 Mis. (5 Bennett) 87. 
 
 1 Perry v. Carr, 41 N. IL 371 ; Crockett 
 V. Lee, "7 Wheat. 522; Story Eq. PI. 
 § 257; Knox v. Smith, 4 How. U. S. 
 298; Capel v. McCollum, 27 Ala. 461; 
 Miller *. Thatclier, 9 Texas, 482; Jones 
 V. Brinker, 20 Mis. (5 Bennett) 87. Care 
 must be taken that every averment neces- 
 sary to entitle the plaiiitift' to the relief 
 pnij-cd for, should be contained in tiie 
 stating part of the bill. Story Eq- PI. 
 § 32; Wbite v. Yaw, 7 Yt. 357"; Peirv v. 
 Carr, 41 N. H. 371; \Yrisht v. Dame', 22 
 Pick. 55; Knnkel v. Markell, 26 Md. 408. 
 This part of the bill should be full and ac- 
 curate, for if a plea is put in, the validit)' 
 of the plea will be decided with reference 
 to the htatm<^ part of the bill, and not with 
 reference to the interrogatory part, if it 
 varies from it. Story Eq. PI. § 27; see 
 Macnamara v. Sweetman, 1 Ilofian, 
 29; Jlechanics' Bank v. Levy, 3 Paif^e, 
 606; Coles v. Buchanan, 3 Ired. Ch. 374. 
 Where the statinjr part does not show the 
 equity of the plaintitf'.s case, the defect 
 cannot be supplied by inference, or by 
 reference to averments in other pHrts of 
 the bill. Wnir\)t v. Dame, 22 Pick. 55; 
 see to the same point, Harrison v. Nixon, 
 9 Peters, 503 ; Slieimrd v. Shi'pard, 6 Conn. 
 67; Duckworth v. Duck worth, 35 .Ma. 70; 
 Ma-=on V. Foster, 3 .1. .1. Marsh. 284; Le- 
 craft V. Deiripsev, 15 Wend. S3; Yancv v. 
 Fetiwick, 4 Men. & M. 423; Mitchell v. 
 Maupin, 3 Monroe, 88: Crocker v. lUg- 
 pins, 7 Conn. 342; Hobart r. Fri^bie, 5 
 Conn. 592; Blake v. lliiikle, 10 Yerfjer, 
 218; Taliaferro r. Foot, 3 I-ei>,'h, 58; Hood 
 V. Inman, 4 .lolin. Ch. 437; Chambers y. 
 Chalni.rs, 4 Gill & .1. 420; Kstep v. Wat- 
 kins, 1 Bland, 486; Townshend u. Duncan, 
 2 Bland, 45; (Jrove « Kcnich, 26 Md. 367, 
 377; Walkinsr. Stockctt,6 llarr. & .J. 445; 
 Timnif >: .Shannon, 19 Md. 312. The plain- 
 till' will not be perinillcd to offer or require 
 evidence of any nnit'Tial fact not distinctly 
 Mated in the premiseK. See Storv Eq. PI. 
 6§ 28, 257 ; Crockett r. Lee, 7 Wlieat. 632; 
 Jackson v. Ashton, 11 Peters, 229; Rowan 
 
 V. Bowles, 21 111. 17; Sprijrff v. Albin, 6 J. 
 J. Marsh. 158; Skinner f. Bailej', 7 Conn. 
 496. He cannot recover on a case different 
 from that alleged. Sanborn v. Kittredge, 
 20 Yt. 632; Gibson v. Car-son, 3 Ala. 421; 
 Harding V. Handy, 11 Wheat. 103; Jack- 
 son V. Ashton, 11 Peters, 229. A general 
 statement or charge, however, of the mat- 
 ter-of-fact, is sufticient; and it is not 
 necessary to charge minutely all the cir- 
 cumstances which may conduce to prove 
 the general charge ; for these circumstances 
 are properly matters of evidence, which 
 need not be charged in order to let them 
 in as proofs. Story Eq. PI. § 28; Nesinith 
 V. Calvert, 1 \Vood"& M. 34 ; Lovell v. Far- 
 rington, 50 Maine, 239; Rogers v. Ward, 
 8 Allen, 387. On the other hand, the 
 charge maj' be substantially made by 
 stating the facts from which the fraud or 
 mistake would be necessarily implied. 
 Courts of Equity derive their, jurisdiction 
 from the facts alleged, not from the terms 
 used in setting them out. Grove v. Kentch, 
 26 Md. 367, 377; see Harding v. Handy, 
 11 Wheat. 103. 120, 121; see further to 
 these points, Dillv v. Heckrott, 8 Gill & 
 J. 171; Morrison "v. Hart, 2 Bibb, 4; Le- 
 master v. Burkhart, 2 Bibb, 26; Crocker 
 V. Iligsins, 7 Conn. 342 ; Buck v. McCangh- 
 trv, 5 Monroe, 220; Bank of United States 
 r." Shultz, 3 Ohio, 62; Anthony v. Left- 
 wich, 3 Rand. 263; Boone y. Chiles, 10 
 Peters, 177; Jackson v. (^artwright, 5 
 Munf 314; Aikens v. Bullard, 1 Rice Eq. 
 13; Bishop v. Bishop, 13 Ala. 475; White 
 V. Yaw, 7 Vt. 357; The Camden and Am- 
 boy R.R. (Jo. V. Stewart, 4 C. E. Green 
 (N. J.). 343. But where the facts stated 
 in the bill are disproved, or are defectively 
 stated, relief may be granted upon the facts 
 stated in the answer. Maury r. Lewis, 10 
 Yerger, 115; Rose t". Mynatt, 7 Yerger, 30; 
 M'Laughlin v. Daniel, A Dana, 184; Dealty 
 «. Murphy, 3 A. K. Marsh. 474; but see 
 Thomas i). Warner, 15 Yt. 110; Storv En. 
 PI. §§ 257. 264; West v. Hall, 3 IlnVr. &^ 
 J. 221; Edwards v. Massey, 1 Hawks. 
 359. Rule 4 of the Massachusetts Rules of 
 Practice in Chancery, requires that " tho 
 bill shall contain a clear and explicit state- 
 ment of the plaintiff's case." In Maine, 
 " the bill nni-t set l"rth clearly, succinctly, 
 and precisfdy, the facts and causes of com- 
 plaint, without circinnlocutii'n or repeti- 
 tion." Rule 1, 37 Maine, 661, Appx.
 
 362 
 
 THE BILL. 
 
 rii. VI.5 r.. 
 
 Seisin in fee, 
 how alleged. 
 
 Possession of 
 a chattel real. 
 
 Seisin of 
 tilings 
 manurabh ; 
 
 not manur- 
 able. 
 
 "Words to 
 
 enlarge 
 
 meaning. 
 
 Technical 
 expressions 
 notabsolutely 
 necessary. 
 
 uToiiud that tlic bill oiiu'lit to liavc stated what tlio outstanding 
 tonii 1)1- estate was.^ 
 
 Althouo-h tlie rules of pleadiuLi: in Courts of Equity, especially 
 in the ease of hills, are not so strict as those adopted in Courts of 
 Law, yet, in franiint;- ])leadinos in I'Ccpiity, the draftsman will do 
 "well to atlhere as closely as he can to the gcTieral rules laid down 
 in the books whiih treat of Common Law })leadin<>;s, whenever 
 such rules are applicable to the case which he is called upon to 
 present to the Court : ^ for there can be no doubt, tliat the stated 
 forms of description and alIe<:;ation which are ado)ited in pleadings 
 at Law have all been (bily dcl)ated under every possible considera- 
 tion, and settled upon solemn deliberation, and that, having been 
 established by long usage, experience has shown them to be prefer- 
 able to all others for conveying distinct and clear notions of the 
 subject to be submitted to the Court; and if this be so at Law, 
 there appears to be no reason why they slK)uld not l)e considered 
 as equally applicable to pleadings in Courts of Equity, in cases 
 where the object of the pleader is to convey the same meaning as 
 that affixed to the same terms in the ordinary Courts. Thus, as 
 at Law", if a man intends to allege a title in himself to the inheri- 
 tance or fi'eehold of lands or tenements in possession, he ought 
 regularly to say that he is seised / or, if he allege possession of a 
 term of years, or other chattel real, that he is 2>ossessed ;^ if he 
 allege seisin of things onmiwable, as of lands, tenements, rents, &c., 
 he should say that he was seised in his demesne as of fee ; and if 
 of things not manurable, as of an advowson, he should allege that 
 he is seised as of fee and right, omitting the words in his demesne* 
 so that there seems to be no reason why the same forms of expres- 
 sion should not be equally jiroper in stating the same estates in 
 Equity. It is, indeed, the general 2>ractice, in all well-drawn plead- 
 ings, to insert them, although they are frequently accomjianied 
 with other words, which are sometimes added by way of enlarging 
 their meaning, and of extending them to other than mere legal 
 estates. Thus, in stating a seisin in fee, the words " or otherwise 
 well entitled to^'' are frequently added : although it would seem 
 that, in some cases, the addition of these words Avould be incorrect, 
 and might render the allegation too imcertain.'' 
 
 In recommending the use, in pleadings in Equity, of such tech- 
 nical expressions as have been adopted in pleadings at Common 
 
 1 Stansburj' v. Arkwright, 6 Sim. 481, 
 485; see also .Jones v. Jones, 3 Mer. 161, 
 175; Barber v. Hunter, cited ih. 170, 173; 
 Frietas v. Dos Sandos, 1 Y. & .1. 574. If 
 the bill founds tlie right Against the defend- 
 ant upon the fact of his having notice, it 
 should charge such notice directly, other- 
 wise it is not matter in issue on which the 
 
 Court can act. Story Eq. PI. § 263, and 
 cases in note. 
 
 2 See The Camden and Amboy R.R. Co. 
 V. Stewart, 4 C E. (ireen (N. J.), 343, 346. 
 
 3 Stephen on PI. 233, 242; Whitworth 
 Eq. Prec. 162, n. et sea. 
 
 4 Ibid. 
 
 6 Baring v. Nash, 1 V. & B. 551.
 
 FORM OF THE BILL. 363 
 
 Law, it is not intended to suggest that, in Equity, the use of any Ch. VI. § 5. 
 particuUir fonn of words is absolutely necessary, or that the same ' i ' 
 thing may not be expressed in any terms which the di-aftsman may 
 select as proper to convey his meaning, provided they are adequate 
 for that pmi)ose.^ All that is contended for is, that notwithstand- 
 ing the looseness with which pleadings in Courts of Equity may, 
 consistently with the principles of those Courts, be worded, yet, 
 where it is intended to express things for which adequate legal or 
 technical expressions have been adopted in pleadings at Law, the 
 \ise of such expressions will be desirable, as best conducing to 
 brevity and clearness. Assuming, therefore, that even in plead- 
 ings in Equity the same form of words as are used in pleadings at 
 Law may generally be introduced with advantage, the reader's 
 attention will here be directed to some of the rules adopted in 
 legal j)leadings, which may with good effect be ado2)ted in Equity. 
 
 Thus, it is a rule in pleading, at Common Law, that the nature Legal effect 
 of a conveyance or alienation should be stated according to its should be^ 
 legal effect, rather than its form of words ;^ and this is in substance stated. 
 enjoined liy the General Order,^ which dii'ects "that deeds, wi-it- • 
 
 ings, or records be not unnecessarily set out in j)leadings in hcec 
 verba^ but that so much of them only as is pertinent and material 
 be set out or stated, or the effect and substance of so much of these 
 only a* is ]»ertinent and material be given, as counsel may deem 
 advisable, without needless prolixity." •* 
 
 It may be observed, however, that although it is desirable, in Document?, 
 stating instruments, that the above Order should be adhered to, set out m 
 and that the substance only of such instruments as are necessary Tk^c verba: 
 to be set out should be stated, without re])cating them in hcec verba, 
 yet cases may arise in which it is convenient to state Avritten docu- 
 ments in their very words. This occurs, whenever any question Wiiere quesr- 
 in tlie cause is likely to turn upon the precise words of the instru- ^''*"„ p"rticu- 
 nient, as in tlie case of bills filed for the estaljlishment of a particu- lar words; 
 lar Cf>nst ruction of a will whicli is informally or innrtificially worded: as in wills, 
 in siH'li bills, the words which are the subject of the discussion 
 ought to be accurately set out, in order more specifically to point 
 the attention of the Court to tliem. Indeed, wherever informal or informal 
 instruments are insisted on, upon the construction of which nuy "'^""'"^■"'^• 
 difficulty i.s likely to arise, as is frecpiently the case in agreements 
 
 1 See KidKly v. I'.ond, 18 Md. 433; Bol- Ilarr. & J. 363; Silver r. Kondrick, 2 N. 
 
 pinno t'. Cooke, 19 ^M. 376; Grove v. IL 160; Osborne r. Lawrence, 9 Wend. 
 
 Hcntch, 20 Md. 367, 377. 135; Crocker v. Whitney, 10 Mass. 320; 
 
 '■* Stfphen on I'l. 237; see 1 Cbitty I'l. Goodwicli r. Uodney, 1 JNliii. 195. 
 
 (9th Am. ed.) ."'»-,; Andrews v. Williams, =• Ord. VHI. 2. 
 
 11 Conn. 320; Morri« u. Fort, 2 M'Cord, * See 20th U. States Kquifv Rule; fiood- 
 
 3!iS; L.-nt r. Tadilford, 10 Muss. 230; rich r. Rodney, I'Min. 19.") ; Uule 2 of New 
 
 Ho(ikinM «. Voung. 11 Mass. 307; Walsh Jersey Chancery Kidcs, 2 ^l(•Carter(N..T.), 
 
 V. (iihner, 3 Ilarr. & .1. 407; Grannis v. 613; The Camden and Amboy K.R. Co. w. 
 
 Clark, 8 Cowcn, 36; Kidgley v. Higgs, 4 Stewart, 4 C. E. Green (N. J."), 343.
 
 364 
 
 THE BILL. 
 
 Cn. VI. 5 5. 
 
 Old practice 
 of leaving 
 document 
 ■with clerk 
 in Court, 
 
 discontinued. 
 
 Where not 
 required at 
 Common 
 Law, written 
 instruments 
 need not be 
 stated. 
 
 roilui'iMl into writinji; l>y ]iors(iiis who liavo not l)Oon professionally 
 oihu';it('il, or Avliii-li ;nv insisted on ns ri'snltinc^ from ;i AVfitton cor- 
 ivspondiMU'o : in nil such casos, t1u> writtiMi instruments relied on, 
 or at least the material ]>arts of them, shotUd be set out in hoic verba. 
 So also, in bills iiled for the jiurpose of carrying into effect written 
 articles, npon the construction of which, although they are formally 
 drawn, questions are likely to arise, such articles or so much of 
 them as are likely to give rise to questions, should be accurately 
 stated. In many cases also, the exjiressions of an instrument or 
 writing are such that any attempt to state their substance, with- 
 out introducing the very words in which they are exj)resscd, would 
 be ineffectual : in such cases, also, it is best that they should be set 
 forth; and wliere a deed or agreement, or other instrument relied 
 upon by the plaintiff has been lost or mislaid, and is not forthcom- 
 ing, it may be usefid, if it can be done, to set out the contents of 
 the instrument at length, in order to obtain an admission of the 
 contents from the defendant in his answer. 
 
 It may be observed here that, according to the old practice of 
 the Court, when a plaintiff wished to obtain from a defendant an 
 admission as to a particular deed or instrument in his, the plain- 
 tiff's, own possession, it was usual to leave the deed or other in- 
 strument in the hands of the plaintiff's clerk in Court, and, having 
 stated that foct in the bill, to j^ray that the defendant might in- 
 spect it, and after inspection answer the interrogatories applicable 
 to the subject.^ This practice, however, has been for a long time 
 discontinued ; and it is now considered sufficient to state upon the 
 bill the date, parties' naiiies, and substance of the deed or instru- 
 ment relied upon by the plaintiff, and then, by interrogatory, to 
 require the defendant to set forth whether a deed, of the natiu-e of 
 that set forth, was not duly executed by and between the 2:>arties 
 stated, or some, or one, and which of them, and whether the deed 
 does not bear the date, and is not to the purport or effect before 
 set out, or of some, and what other date, or to some, and what 
 other purport and effect. This form of statement and interroga- 
 tory is calculated to draw from the defendant, either an admission 
 or denial of the deed, and of all knowledge of it, or of its execu- 
 tion, date, and contents ; or else a statement of the defendant's 
 knowledge or belief of the parties by whom it was executed, and 
 of its date, tenor, and effect. 
 
 With reference to the subject of stating written instruments, it 
 may be observed, that it is a rule in pleading at Law, that where 
 the nature of a conveyance is such that it would, at Common Law, 
 
 1 Per Lord Eldon, in The Princess of 
 Wales v. The Karl of Liverpool, 1 Swanst. 
 123. Maps, plans, trade-marks, &c., may 
 
 however, still be deposited at the Record 
 and Writ Clerks' cilice, and referred to in 
 the bill. Braithwaitc's Pr. 25.
 
 FOEM OF THE BILL. 
 
 365 
 
 be valid without deed or writing, there no deed nor writing need 
 be averred, though such document may in fact exist ; but where the 
 nature of the conveyance requires, at Common Law, a deed or 
 other written instrument, such instrument must be alleged.^ The 
 same rule has, it would seem, been adopted with respect to plead- 
 ings in Equity; thus, in stating a conveyance by bargain and sale, 
 it is not essential to state that it was enrolled : for thougli such a 
 process is rendered necessary by statute, it was not so at Common 
 Law.2 
 
 In a bill for specific performance of an agi-eement relating to 
 land, it is liowever, necessary to allege that the agreement is in 
 writing : ^ otherwise, the bill will be demurrable ; but it is not nec- 
 essary to allege that it has been signed : * because, from the state- 
 ment that it is in writing, it is necessarily to be inferred that it has 
 been signed.^ 
 
 It may be noticed, in this place, tbat where an agreement relied 
 upon in a bill is to be collected from the letters between the parties, 
 the letters may be stated in the bill, either as constituting the al- 
 leged agreement, or as evidence of an alleged parol agreement. 
 In the first case, the defendant may insist that they do not make 
 out a concluded agreement, and that no intrinsic evidence can be 
 received ; in the latter, he may plead the Statute of Frauds.*^ 
 
 It is upon the principle above referred to, that although stamji- 
 ing is, by sundry Acts of Parliament, rendered necessary to the 
 
 Ch. VL § 5. 
 
 Secus, where 
 required. 
 
 Bargain and 
 sale, without 
 averring 
 enrohuent. 
 
 Agreement 
 relating to 
 land must be 
 alleged to be 
 in writing ; 
 
 but allegation 
 of signature 
 not necessary. 
 
 Letters 
 containing 
 agreement, 
 may be 
 stated, as 
 constituting 
 it, or as 
 evidence. 
 
 Stamp need 
 not be 
 averred. 
 
 1 Stephen on PI. 2.38, 287, 288. 
 
 2 See Harri«<m v. Hogg, 2 Ves. J. 327. 
 Where, it is alleged that a mortgngoe " by 
 his assignment in writing on said deed, 
 sealed witli hi-* seal" (date and considera- 
 tion stated), "conveyed and assigned to 
 tlie plainliflall his ri^ht, title, and interest 
 in the same, together with the debt se- 
 cured thereby, and all his claims in and to 
 the mortgage, all wliich will more fully 
 appear Ijy said deed and assignment when 
 produced in (."ourf," it was held sunTicient 
 on demurrer, aUiiough tiiere was no allega- 
 tion in the bill that the assignment was 
 acknowledj;ed nnd recorded. Lovell v. 
 rarriiigtnn, .00 Maine, 239. 
 
 3 Whitciiurch v. Hevis, 2 Rro. C. C. 559, 
 568; liedding r. Wilkes, .3 Iko.C. C 400.; 
 Barkworth r. Young, 4 Drew. 1 ; 3 .Jur. X. 
 S. 34; Woo.l r. .Mwigeley, 6 l)e C,., M. & 
 (i. 41; (see I'iercy v. Adams, 22 (Jeo. 10i». 
 I'art-perlbnnsuice of a contract within the 
 Statuje of Frauds must, in order to entitle 
 a partv to ndief, be expressly stated in the 
 bill. Se<' Mcach r St. .lie, 1 I). Chip. 182. 
 
 As to the effect of part-perf.irmaiice, iind 
 what will amount to a part-perl.irmance 
 sufticieiit to take a case out of the statute, 
 »ee Whitchurch v. IJeavis, 2 Bro. (',. C. 
 (Perkins's ed.) .OOC, note (<■«), and cases 
 cited; Whitebread v. I'rockliurst, 1 id. 
 404, and cases cited in notes; 2 Story Eq. 
 
 Jur. §§ 759-767 ; Newton v. Swasev, 8 N. 
 IL 9; 1 Sugden, Vend. & Pur. {7th Am. 
 ed.) 140 e( st(j., and notes. A trust need , 
 not be alleged to be in writing, but it is 
 sufficient it the trust is proved by writing 
 at the hearing; see Davies v. Ottv, 10 Jur. 
 N. S 506; 12 W. R. 682, M. K.': ib. 896, 
 L. J.J. ; 33 liea V. 540 ; 2 l)e G., J . & S. 238 ; 
 and see Porster v. Hale, 3 Ves. 696 ; Ran- 
 dall t' Morgan, 12 Ves. 74, and cnmp. the 
 4th and 7th sects, of Stat, of Frauds. Peas- 
 ley ('. Harncv, 1 I). Chip. 333; see Hobart 
 f." Andrews," 21 Pick. 526, 534; Ontario 
 B:.nk I', lioot, 3 Paige, 478; Coquillard v. 
 Suvdain, 8 lilackf. 24. 
 
 * Ki^t f. Hobson, 1 S. & S. 543; Bark- 
 worth V. Young. 4 Drew. 1; 3 Jur. N. S. 
 34; see Story Kq. PI. §§ 253, 762; Cosine 
 V. Graham, 2 Paige, 177; Coles t'. Boone. 
 10 Paige, 535; Ontario Ifaiik v. lUot, 3 
 Paige, 478; Hobart v. Andrews, 21 Pick. 
 534; Hichards v. Richards, 9 Gray, 314; 
 Sterm v. Drinker, 2 E. D. Smith (N. Y.), 
 401; 1 Chitty PI (9lh Am. e.l.) 303, 304; 
 Nelson V. Dubois, 13 .lohn. 177; Cleaves 
 »'. Foss, 4 Greenl. 1; Wallis v. F'razier, 2 
 N<.tt. .V McC. ISO. 
 
 6 I5arkwortli v. Young, nbi sup. 
 
 liine r. Hletchlev, 6 Mad. 17 ; Skinner 
 r. l\rDouiill, 2 De G. & S. 265; 12 Jur. 
 741; Sugd. V. & P. 149; Dart, V. & P., 
 649.
 
 366 
 
 FORM OF THE BILL. 
 
 C'li. VI. s 
 
 Instnimoiit 
 civatod liy 
 statute must 
 bo statiil, 
 with all lir- 
 cumstances 
 required. 
 
 Will must be 
 averred to 
 have been 
 dulv made. 
 
 As to state- 
 ments under 
 the Engrav- 
 ings Cop}-- 
 right Acts. 
 
 vnlulily of ;i v.irioty of instruments, it is not necessary, nor is it 
 oven usual, iu pleading'-s, to aver tliat such iustrunients liave been 
 duly stamped. 
 
 It is to be observed, also, that the nde of jdeading above re- 
 ferred to aj)]ilies only to cases in which the necessity for a con- 
 veyance or agreement being in writing, is superadded by statute 
 to things which at Common Law might have been by parol ; 
 but where a thing is originally created by Act of Parliament, and 
 re(iuired to be in Avriting, it must then be stated, Avith all the 
 circumstances required by the Act. Thus, it was necessary to 
 allege that a devise of lands (which at Common Law is not valid, 
 and Avas first authorized by the statutes 32 Hen. VIII. c. 1, and 34 
 Hen. VIII. c. 5) had been made in Avriting, which is the only form 
 in which those statutes authorize it to be made.^ 
 
 It seems, however, that it is sufficient, under the present Wills 
 Act,^ to allege, that a will has been duly made, or duly made in 
 writing ; and that it is not necessary to allege the signature and 
 attestation, as required by the Act.'^ 
 
 Some doubt apjjears to be entertained whether, in suits under 
 the 8 Geo. II. c. 13, and 7 Geo. III. c. 38,* by which the property 
 in certain prints is vested in the inventors for a certain number of 
 years from the day of publishing, it is necessary to state that the 
 name of the engraver and date of the print have been engraved 
 on the print, as required by the fii'st-mentioned Act. In Jilac/cwell 
 V. Harper,^ Lord Hardwicke was of opinion, that the clause in the 
 Act was only directory, and that the property was vested abso- 
 lutely in the engraver, so as to entitle him to sue, although the day 
 of publication was not mentioned, and compared it to the clause 
 under the statute of Anne,® which required entry at Stationers' 
 Hall : upon the construction of w^hich it had been determined that 
 the property vests, although tlie direction had not been conq)lied 
 with. Lord Ellenborough also held, at iiisi prius,'' that an action 
 might be maintained, although the proprietor's name was not in- 
 scribed: observing, that the interest was vested by the statute, 
 and that the Common Law gave the remedy.^ On the other hand, 
 it ap])eai's to have been taken for granted by the Court of King's 
 Bench, in the case of Tliompson v. Synionds,^ though it became 
 unnecessary to decide the pointy that both the name and the date 
 should appear ; an.d in Harrison v. Ilogg^^ Lord Alvanley M. R. 
 
 1 Stephen on PI. 239. 
 
 2 7 Will. IV. & 1 Vic. c. 2G. 
 
 8 Hyde v. Edwards, 12 Beav. IGO; 13 
 Jur. 7.57. 
 
 ■» These Acts are amended and ex- 
 plained by 17 Geo. III. c. 57 ; C& 7 Will. IV. 
 "c. .59, Ir.; 15 & 16 Vic. c. 12; see Phillips 
 on Copyright, Chap. VIII. 
 
 'o 2 Atk. 93, 95; liarn. 210, 213. 
 
 6 8 Ann. c. 19, repealed by 5 & 6 Vic. 
 c. 45. 
 
 7 Beckford v. Hood, 7 T. R. C20 ; and see 
 Buller V. Walker, cited 2 Atk. 94. 
 
 *> Koworth V. Wilkes, 1 Campb. 94. 
 
 'J 6 T. R. 41. 
 
 10 2 Ves. .J. .327. The Copyright Act of 
 5 & 6 Vic. c. 45, as to Books, has been 
 held to include Engravings in Books; so
 
 FORM OF THE BILL. 
 
 367 
 
 Stated that he inclined to difler from Lord Hardwicke, and that it 
 was his opinion that the insertion of the name and date was essen- 
 tial to the plaintiff's right. 
 
 It has been before stated, that it is a rnle in pleading, that 
 whenever at Common Law a written instrument was not necessary 
 to complete a conveyance,, it is not necessary in pleading to aver 
 it, although such an instrument has been rendered necessary by 
 statute, and has been executed. The converse of this is also a 
 riile, so that, whenever a deed in "sniting is necessary by Common 
 Law, it must be shown in pleading ; therefore, if a conveyance by 
 way of grant be pleaded, a deed must be alleged : because matters 
 that " lie in grant," according to the legal phrase, can pass by deed 
 only.-^ Thus in Henning v. Willis^- where the plaintiff filed a bill 
 for tithes, and set up by way of title a parol demise by the impro- 
 priator for one year, the defendant demuiTed for want of title in 
 the plaintiff, and the plaintiff submitted to the demurrer. Uj^on 
 the same gi'ound, in Jackson v. Benson^ where the bill prayed 
 an account of tithes, and merely stated that the impropriate rector 
 demised the tithes to him, a demurrer, put in by the defendant, 
 was considered to be well founded;' and in Williams \. Jones^^ 
 the same objection was taken at the hearing, and would have 
 prevailed, had it not appeared that the impropriators had origi- 
 nally been made parties to the suit, but had been dismissed in 
 consequence of theu* having disclaimed all interest in the tithes 
 in question.^ 
 
 It may be noticed here that, in stating deeds or other written 
 instruments in a bill, it is usual to refer to the instrument itself, in 
 some such words as the fallowing, viz., " as by the said indenture, 
 xohen produced, vrill appear^ The effect of such a reference is to 
 make the whole document referred to part of the record. It is to 
 be obserxed, that it does not make it evidence : in order to make 
 a document evidence, it must, if not admitted, be proved in the 
 usual way ; but the effect of referring to it is to enable the plaintiff 
 to rely upon every part of the instrument, and to prevent his 
 being precluded from availing himself, at the hearing," of any 
 portion, either of its recital or operative part, which may not be 
 inserted in tlie l)ill, or which may be inaccurately set out. Thus, 
 it seems that a plaintiff may, by his bill, state sim])ly the date and 
 general ])ur])ort of any particular deed or instrument under which 
 lie claims, and that such statement, provided it is accompanied by 
 
 Cn. VL § 5. 
 
 Instrument 
 in writing, if 
 necessary at 
 Law, must be 
 averred : 
 
 Where things 
 lie in grant, 
 
 as tithes. 
 
 Reference to 
 instruments; 
 
 makes them 
 part of record, 
 
 but not 
 evidence. 
 
 that the provisions of 8 Geo. IL c. 13, need 
 not, in sucli ta<e, be complied witli. Bopue 
 r. Houl.Hton, '> l)e G. & S. 207; lO.Iur. 372. 
 Under tliis Act, however, payment for an 
 article written for a [leriodicul must be 
 allpjjcd. UichardHdn v. (Jilburt, 1 Sim. N. 
 S. 3.3fl; 1.5 .lur. 3S<J; but see I'hiilipa on 
 Copyright, 170. 
 1 Stephen on PI. 23'J. 
 
 2 3 Wood, 29; 2 E. & Y. 188. 
 
 8 M'Clel. 62; 13 I'ri. 131. 
 
 * Youiige, 2.'j2. 
 
 '' Youn^^e, 2.'J5; and see anli, p. 211. 
 
 " Hut on the argument of a demurrer, 
 he cannot avail himself of the portion not 
 set out. llarmer v. Gooding, 3 I )e (J. & S. 
 407, 410; Cuddon i'. Tite, 1 Gill'. 305; 4 
 Jur. N. S. 679.
 
 THE BILL. 
 
 a roforence to the deed itself, will be suflleient. As in Pmmcefort 
 \. Aort? Xmco//^,^ where the ])l:iintiff's claims were founded on a 
 variety of deeds, wills, and other instruments; hut to avoid ex- 
 ])ense, or for sonu» other purpose, the dates and neneral ])urport 
 only of sueh instruments were stated in the hill, with reference to 
 them. This manner of stating the case docs not a])pear to have 
 been considered as a ground of objection to the bill; but Mdien 
 the cause was brought to a hearing. Sir Thomas Clarke ]M. R. re- 
 ferred it to the master to state the rights claimed by the plaintiff 
 under the several instruments mentioned in the bill, and reserved 
 costs and further directions until after the report, and the cause 
 was afterwards heard, and a decree made, on the report, which 
 . stated the instruments. It is obvious that the method of stating 
 the plaintitf's title adopted in the above-mentioned' case, w^as one 
 of great inconvenience ; and although it has been referred to here, 
 it is by no means from a wish to recommend its adoption as a 
 precedent. It is always necessary, in drawing bills, to state the 
 case of the plaintiff clearly, though succinctly, upon the record ; 
 and in doing this, care should be taken to set out precisely those 
 deeds Avhich are relied upon, and those parts of the deeds which 
 are most im])ortant to the case.^ 
 Of the Although the same precision of statement is not required in 
 
 required : \)i\\^ in Equity as in pleadings at Law", yet it is absolutely necessary 
 that such a convenient degree of certainty should be adopted, as 
 may serve to give the defendant full information of the case which 
 he is called uj^on to answer.^ In Cresset v. Mitton^^ Lord Tliurlow 
 observed, "special j^leading depends upon the good sense of the 
 thing, and so does pleading here ; and though pleadings in this 
 Court run into a great deal of unnecessary verbiage, yet Inhere 
 must be sometliing substantial;" and in Lord Kedesdale's Treatise 
 it is said, that the rights of the several parties, the injury com- 
 plained of, and every other necessary circumstance, as time, place, 
 manner, or other incidents, ought to be plainly, yet succinctly, 
 alleged.^ And, in several cases, demurrers have been allowed to 
 bills on the ground of the vagueness and uncertainty of their 
 statements.® Upon the same principle, a mere allegation that the 
 
 1 1 Dick. 362. dolph v. Daly, 1 C. E. Green (N. J.), 313, 
 
 2 Martin v. McBrvde, 3 Ired. Cii. 531; 318. 
 
 King V. Trice, 3 Ired". Eq. 568. ■* 1 Ves. J. 450; 3 Bro. C. C 482 
 
 8 See Kuiikcl v. Markell, 26 Md. 408; 6 L,l. Ked. 41. 
 
 Droullard r. Baxter, 1 Scam. 102; Rogers ^ Wormald v. De Lisle, 3 Bcav. 18; 
 
 V. Ward, 8 Allen, 387; Chapman v. Hunt, Boyd v. Movie, 2 Corl. 310, 323; Kelly v. 
 
 1 McCarter (N. .) ), 149; White v. lunpire Rogers, 1 Jur. N. S. 514, V. C. W.; see 
 
 A=s. Corp. L. R. 6 Eq. 23; Story Eq. PI. also Vernon v. Vernon, 2 M. & C. 145, 
 
 %t\^etitq. General certainty is'sulKcieiit 171 ; Reed v. O'Brien, 7 Heav. 32, 37, 39 
 
 in pleadings in Equity. Story Eq. I'l. §253; Darthez v. Clemens, 6 Beav. 165, 169 
 
 a«<e, 360-362, notes; I'rescott ». Everts, Parker v. Nicksoii, 4 Gift". 306; 9 Jur. N 
 
 4 Wis. 314; Paterson & Hud. R.R. Co. v. S. 190; Afld. ib. 451; 1 De G., J. & S. 177 
 
 Jersey City, 1 Stockt. (N. J.), 434; Ran- but see Chouteau v. Rice, 1 Min. 106.
 
 FORM OF THE BILL. 369 
 
 defendant is a trustee for the j^laintifF, not sui:)ported by the facts Ch. VL § 5. 
 
 stated, will not prevent a demurrer ; ^ and so, a statement that a ' y ' 
 
 defendant claimed an interest as purchaser under an alleged agree- 
 ment, but that such agreement, if any, had been long since aban- 
 doned and waived, was held insufficient to prevent a demurrer 
 by that defendant.- However, where in a bill for specific per- 
 formance of an agreement to take an assignment of a lease, the 
 plaintiif stated a covenant in the lease not to assign -wHthout 
 license of the lessor, and did not aver that the plaintiff had or 
 could obtain such a license : there being no statement of a proviso 
 for re-entry on default, the Court overruled a demurrer, and, at 
 the hearing, directed a reference to inquire whether the plaintiff 
 could make a good title.^ 
 
 With respect to the allegation of time, it is to be observed that, in aUeging 
 where it is material,* it ought to be alleged with such a degree of ^™®' 
 accuracy, as may prevent any possibility of doubt as to the period 
 intended to be defined.^ Thus, in prescribing for a modus in a 
 bill, it is necessary that a time for the payment of it should be 
 mentioned ; ® and, formerly, it appears to have been considered, 
 that not only the day of payment should be mentioned, but that 
 laying the day of payment on or about a particular day was too 
 uncertain.'' It has, however, been decided that, in ordinary cases, 
 the laying of an event on or about a certain day of a certain 
 month or year, is a sufficient specification of time. In the case of 
 Leujh V. Leiyh,^ the bill i)i-ayed that the defendant might be 
 restrained from setting up a term of 500 years, in bar of an action 
 of ejectment Avhich the plaintiff had brought against the present 
 
 1 Jackson v. The North Wales Railway it of the essence, and releases the other 
 
 Company, 6 Kail. (Ja. 11'2; Vi Jur. 69; party upon failure to comply within the 
 
 Steeduian r. Marsh, t Jur N. S. 391, V. time. Fry Specif. I'erf. §§ 711, 713; lieiie- 
 
 <-!• W. (lick V. Lynch, 1 John. Ch. 370; Wells v. 
 
 ■■^ Hodgson V. Espinasse, 10 Beav. 473, Smith, 7 Paige, '22; Grigg v. Landis, 4 C. 
 
 4'7- E.Green (N. J.), 303, 364; I'lckeriiig y. 
 
 ^ Smith i\ Capron, 7 Hiire, 1**5; 14 Jur. Pickering, 38 N. H. 400; I'ennock y. Ela, 
 
 ^'■•J- ISy, lUl. In all cases of an agreement to 
 
 ■« On the subject of the materiiility of convey lunds, where the value of the i)rop- 
 
 time, .see Seton y. Sliide, 7 Sumner's Vesey, erty concerned Inis materiallv changed, 
 
 205, Perkins's note; Marquis of llcrtlord or where great rmanci;d changes have 
 
 f. IJuore, 5 id. 7111, not^- (</), and cases materially altered the relative value of 
 
 cited; 2 Story E(|. Jur, § 770, and notes; money and land, time will be considered 
 
 Hichmond v. (ir.iy, 3 Allen, 25. material, and a party will not be allowed 
 
 In I'/puty, time is often regarded as not to lie by until the change sets in his 
 
 of the essence of a contract. Snowman v. favor, and then ask lor si)ecilic perfonn- 
 
 llarford, 55 Maine, 1!»7; Hull v. XdIiIc, 40 ance. Young y. h'athbone, 1 G. K. (Jreen 
 
 .Maine, 45U; Jt-igers y. Siiunders, 10 .Miiine, (N. J.), 224; .Merritt v. IJrown, 4 G. E. 
 
 92; but where it is of the essence, it will be Green (N. J.), 293. 
 
 insisted on as well ill Equity iis at Law. fi See Saum y. Stingley, 3 Glarke (Iowa), 
 
 Grigg y. Landis, 4 G. E.(ireen (N.J. ), 350; 514. 
 
 Mcrriit w. llrown, 4 G. E. Green (N. J.), « Goddardu. Keeble, Bunb. 105; Phillips 
 
 293. It i.s of the essence of a contract, v. S^ nies, lb. 171. • 
 
 cither when, from the nature or subject- 7 '|5l„eket r. Kinney, ii. 198. 
 
 matter of the conlract, ills materiid that « Belo re the Lord Goiuinissioncrs, Aug. 
 
 It should lie perloriiK'd at the time, or when C and 8, 1835. 
 the coniract by express stipulations, makes 
 
 VOL. I. 21
 
 370 
 
 THE BILL. 
 
 cii. vi.§r). i)ossossDr, :nnl nllriiod lli.it the jilniiitiff's title accniod on the 
 death of :m iiulix iduiil iiMincd, which h;ii)pcned on or about the 
 *2d .Iidy, ISOt). The dt'tendant demurred, on the gronnd that the 
 }>eriod alli'iied in the bill, as the time of the death of the individ- 
 ual named, was more than twenty years (the period required by 
 the Stat. 3 & 4 Will. IV. c. 27, §§ 2 and 24, to bar suits) before 
 the tilinsx of the bill, which took place in 1834. When the de- 
 murrer was first argued, Sir Lancelot Shadwell V. C. was of o])in- 
 ion, that the words, on or about the 2d July, 180G, did not lix 
 any jirecise date, and that it might mean many years before or 
 nuiny years after that time; and overruled the demurrer. Upon 
 a])j)eal, liowever, the Lords Commissioners, Pepys and Bosanquet, 
 reversed the decision : being of o])inion, that irom the knoAvn and 
 accepted use of the expression, " on or about," in all the ordiiiary 
 transactions of life, it was sufficiently definite for all the purposes 
 of demurrer, and did satisfactorily set out the fact, that the j^erson 
 named died in the year 1806.^ 
 
 With respect to the certainty reqiured, in setting out the other 
 incidents in the plaintiff's case, the following cases will serve to 
 show what degree of it is required under the circumstances to 
 which they refer. In the case of Cresset v. Mitton^ before alluded 
 to, a bill had been filed to perpetuate testimony to a right of com- 
 mon and of way, and it stated " that the tenants, owners, and 
 occupiers of the said lands, messuages, tenements, and heredita- 
 ments, in right thereof or otherwise, have, from time whereof the 
 memory of man is not to the contrary, had, and of right ought to 
 have," tfec. To this bill a demurrer was put in : one of the grounds 
 tor which Avas, that it was not stated as to what messuages in par- 
 ticular the rights of common and of way were claimed ; and, in 
 allowing the demurrer, Lord Thurlow said, " you have not stated 
 "whether the right of way and common is appurtenant and apj^end- 
 ant to the land, that you hold ; and you state it loosely that you 
 have such right as belonging to your estate, or otherwise, so that 
 your bill is to have a commission to try any right of common and 
 way wdiatever." The same doctrine appears to have been held by 
 Lord Keeper North, in Gell v. Ilayward,^ who, upon a bill to per- 
 petuate the testimony of witnesses touching a right of way, held, 
 that in such a bill the way ought to be laid exactly per et trans^ as 
 or bills for the i" ^ declaration at Law. And so, in Myves v. Hyves,* where a bill 
 discoveiy of -yygg flig^ f,)j. .^ discovery of title deeds, relating to lands m the 
 
 and other 
 incidents: 
 
 in bills to 
 etitablish a 
 right of way ; 
 
 "1 See also Richards v Evans, 1 Ves. S. 
 30; Huberts f. Williams, 12 Kast, 33; see, 
 as to words "shortly after," 13aker v. 
 Wetton, 14 Sim. 426; "o .lur. 98; and as to 
 worfis " soon after," Kdsell v. Buchanan, 
 4 Bro. C. C. 254. 
 2 3 Bro. C. C. 481; 1 Yes. J. 449. 
 
 3 1 Vern. 312. 
 
 4 3 Ves. 343; see al=o Loker v. Rolle, ib. 
 4, 7; Kast India Company v. Henclitnan, 
 1 Ves. J. 287,290; and see Houghton v. 
 Reynolds, 2 Hare, 264 ; 7 Jur. 414 ; Munday 
 V. Knight, 3 Hare, 407, and reporter's 
 note, ib. 601; S. 0. 8 Jur. 904.
 
 FORM OF THE BILL. 
 
 371 
 
 possession of the defendant, and for the delivery of the possession 
 of such lands to the plaiutifl", upon a loose allegation that, under 
 some deeds in the custody of the defendants, the plaintiff was 
 entitled to some interest in some estates in their possession, hut 
 without stating what the deeds were, or what the j^roperty was to 
 which they applied, a demurrer was allowed. 
 
 The principle which requires a sufficient degree of certainty in 
 the statement of a bill, hasbeen further illustrated in the case of 
 ^tanshury v. Arkinriyht^ before referred to, where a bill to re- 
 strain a defendant from setting up outstanding tenns in bar to 
 the plaintiff's claim at Law, was held to be demun-able, on the 
 ground that it did not allege what sort of term or estate was 
 outstanding. 
 
 The rule which prescribes that a plaintiff cannot sustain a bill, 
 unless he has employed sucli a degree of certainty in setting out 
 his case as may enable the defendant to ascertain the precise 
 grounds upon which it is filed, applies to all cases in which a 
 person comes to a Court of Equity for relief upon a general 
 allegation of error, without specifying particulars ; ^ and if a per- 
 son, seeking to open a settled account, files his bill without such 
 a specification of errors, he will not be pennitted to prove them 
 at the hearing, even though the settlement of the account is ex- 
 pressed to be, errors excepted : which is the usual form observed 
 in settling accounts.* And it should be noticed, that where a 
 I)laintiff files a bill for a general account, and the defendant sets 
 forth a stated one, the plaintiff must amend his bill : because a 
 stated account is ^>/-/??i«/«ae a bar till the particular errors in it 
 are assigned.* Ujxm the same ground it has been held, that an 
 award is a bar to a bill brought for any of the matters intended 
 to be bound l)y it ; and that if a bill is filed to set aside the award 
 as not being final, the specific objections to it must be stated upon 
 the bill.6 
 
 It is to be remarked, that in must of the cases above cited, the 
 
 Ch. VI. § 5. 
 
 or to restrain 
 the setting up 
 outstanding 
 terms ; 
 
 1 6 Sim. 4&1.4>*.5 
 
 2 Tuyl'.r r. Ilayliii, 2 Bro. C. C. 310; 1 
 Cox, 4.'i.J; J')liti-on r. Curtis, 3 Bro. C. C 
 2tiii ; Cockrell r. (Jurlev, 20 Ala. 405; 
 Pri'sliil^re r. IViidleton, '24 Mi^s. bO; Ca- 
 tim r. Willis, i> Ired. E<| 335 ; I'rescott v. 
 Kvcrts, 4 Wis. 314; Dimni' v. Dennis, 15 
 Md. 73; Mewshaw r Mew-haw, 2 M<1. (Jh. 
 l»fc. 12; Walton i'. Cody, 1 Wis. 420; 
 •Jfii.nors r. ('oiiiior'*, 4 Wis. 112; IJarlgerw. 
 IJa.lger, 2 WaiJiKC U. S. 87. 
 
 3 Johnson «. Ciirti<,j///i «?//?. ; 1 Storv Kq. 
 Jur. §§ 623, 527 ; Story lv|. I'i. §§ 251^ 800 ; 
 Ciilvit r. Markhaui, 3 How. (Mi-s ) 343; 
 Mel)»ii<; r. .Melmiie, 1 Ired. K<). 403; I)e 
 Mniiliiiorciify r. l).'vereux, 1 Dru. & W. 
 Ill'; Leavcr'att i'. Demp'icv, 15 Wend. K3; 
 Baker I. biddle, 1 Bald. 304, 41«; Bain- 
 
 bridge r Wilcoeks, ib. 530, 540; Consequn 
 V. l-'imiiing, 3 Jolm. Cli. 5fe7; S. C. 17 
 Jdin. 511; Taylor v. Hiiylin, 2 Bio. C. C. 
 (Perkin-'s cd.) 311, noie («), and c;ises 
 cited; Ji'hnsiin v. Curtis, 3 id. 267, note (n); 
 Brownell v ISrownell, 2 id. 63, note («); 
 but see Sliugart v. Tiioinpson, 10 Leigh, 
 434. 
 
 ■* Dawson v. Dawson. 1 Atk. 1; Story 
 Eq. PI. 79S; Brown v. Vamlyke, 4 Ilalst. 
 Ch. (N. .1.) 795. Tlii< rule supposes tiyit 
 an aceouiit has been given liy the del'enil- 
 iin(. Vandyke v. Brown, 4 Ilalst. Ch. 
 (N. J.) 657 ; as to wliiit are settled iic- 
 counts. see Croft v Graliam, y Jur. N. S. 
 1032, V. C. S. ; 9 L. 1'. N. S. 5b9, L. JJ.; 
 2 De (;., J. & S. 155. 
 
 ' Kouth V. Peacii, 2 Aust. 519. 
 
 or for relief on 
 the ground of 
 error ; 
 
 or to open 
 settled 
 accounts ; 
 
 or where 
 defendant 
 sets up a 
 stated 
 account; 
 
 or an award. 
 
 Objection 
 taken by 
 dcnuirrer.
 
 •■* "" o 
 
 TIIK RILL. 
 
 Ch. VI. § 5. 
 
 Ooudnsious 
 of law iici'd 
 uot, in 
 gi'iieniJ, be 
 avcrrwl. 
 
 Exccptiou. 
 
 t|iu's(u)n has coino boforo the Court upon (liiiuiricr, which seems 
 to bo tin' ]>ro|>(M- \v:iy in which a (U'fi'mhint ought to take the 
 objiH'tioii thiit .1 li'ill is (K'licicnt- in certainty: if" he neglects to do 
 so, it 8conis t hat lie cannot avail liiiusclf ot" the objection at the 
 hearing.^ 
 
 As a general rule, conclusions of law need not be averred ; but 
 where certain tacts are stated from which it is intended to draw a 
 conclusion oC law, the bill ought to be so framed as to give notice 
 to the (letendant of tlie ])laintitf's intention to insist on such con- 
 clusion : otherwise, he will not be allowed to do so. Thus, in a 
 bill for specific perfoi'mauce of an agreement to sell a leasehold, 
 the plaintiff Avas not allowed to insist that the defendant had 
 waived his right to inquire into the landlord's title : because, 
 although he had stated in his bill facts from which the waiver 
 might be inferretl, he had not alleged the waiver.^ 
 
 4. Charge of Confederacy. 
 
 It was formerly customary in almost every bill to introduce a 
 general charge of confederacy against the defendants.^ There is 
 no such statement in the model of a bill given by the General 
 Orders, and it is scarcely necessary to say that such a charge would 
 now, except under very special circumstances, be deemed idle and 
 impertinent. 
 
 5. Charrjing Part.^ 
 
 It was formerly the practice of pleaders in Equity to state the 
 plaintift''s case in the bill very concisely, and then if any matter 
 was introduced into the defendant's plea or answer, which made it 
 necessary for the plaintiff to put in issue, on his part, some addi- 
 
 1 Carew v. Johnston, 2 Sch. & Lef. 280. 
 
 2 Clive V. Heaumont, 1 De G. & S. 31*7; 
 13 Jur. 226; Gaston v. Fraukum, 2 De G. 
 & S. 561; 10 Jur. 507. 
 
 3 See I'jarton, 33, note (1) ; Cooper Eq. 
 PI. 10; 1 Hotf. Ch. I'r. 41. The general 
 charge of Iraudulent combination, &c., is 
 not suflicieiit to charge t'laud; theie must 
 be a specitic allegation of fraud, stating the 
 facts, hewi.s v. Lewis, 9 Missou. 1&3; but 
 see Farnliain v. IJrooks, 9 I'ick. 212, 219. 
 Although the charyt tj' conftderacy is now 
 u.'-ually, but not invariably, inserted in 
 biUs, yet it is treated as mere surplusage; 
 so much so, that it is said, tliat the geneial 
 charge of combination need not be (al- 
 tiiough it usually is) denied or responded 
 to in the answer, when chiirged in ilie bill; 
 
 the pjirt wliich is usuallj'' called the com- 
 mon confederacy clause of the bill, aver- 
 ring a confederacy between the liefeudants 
 to injure or defraud the plaintiH'. By the 
 7th Chancery Itule in Massachusetts, it is 
 provided, that the common charge of fraud 
 or combination shall be omitted, except in 
 cases where it is intended to charge fraud 
 and combination specifically. Sec Adams 
 V. Porter, 1 Cu^h. 170. And in New 
 Hampshire, it is lield that tlie allegation 
 of conlederacy is not essential, except 
 where it is intended to cliarge fraud and 
 combination S[)ecilically. Stone v. Ander- 
 son, 26 N. II. 500. And b}' rule of Court 
 in that State, the charge of confederacy 
 may be omitted. Rule in Chancery, 3, 38 
 N. 11. 005, Appx. In Maine it must be 
 omitted. Chancery Kiile 1, 37 Maine, 581. 
 
 for It is mere impertinence. Story Kq. I'l. _. , _. , 
 
 § 29. 15y the 21st Kquity Rule of the Su- ■* The form of such a chai'ge is given in 
 
 preme Court of the United States, January Van Meythuysen's Equity Draftsman, p. 5, 
 
 Tenn, 1842, it is provided, that the plain- and in l'»arton, p. 34; Story Eq. I'l. §§ 31, 
 
 tifi' shall be at liberty to omit at his option 33, and notes.
 
 FORM OF THE BILL. 373 
 
 tional fact in avoidance of such new matter, such new flict was Ch. VI. § 5. 
 
 placed uj^on the record by means of a special replication. In 
 
 order to avoid the inconvenience, delay, and unnecessary length 
 
 of pleading, arising from this course of proceeding, the practice 
 
 grew up, when the ]ilaintitf was aware at the time of filing his bill 
 
 of any defence which might be made to it, and had any matter 
 
 to allege which might avoid the effect of such defence, to insert 
 
 an allegation that the defendants pretend, or set up such and such 
 
 allegations by way of defence, and then to aver the matter used 
 
 to avoid it in the form of charge. This was commonly called the 
 
 charging part of the Inll, and its introduction into practice, in all 
 
 probability, led to the discontinuance of special replications, by 
 
 enabling the plaintiff to state his case, and to bring forward the 
 
 matter to be alleged in reply to the defence at the same time, and 
 
 that Avithout making any admission, on the part of the plaintiff, of 
 
 the truth of the defendant's case. Thus, if a bill were filed on 
 
 any equitable ground, by an heir who apprehended his ancestor 
 
 had made a will, he might state his title as heir, and alleging the 
 
 will by way of pretence on the part of the defen(huits claiming 
 
 imder it, make it a part of his case without admitting it. 
 
 Such was the origin of what was called the charging part in a 
 bill, and there is no doubt that in many cases it is still convenient, 
 and may be made the means of enabling the jJaintiff to state his 
 answer to some anticipated defence, or to guard his statement by 
 allegations which could not conveniently be inserted in the text. 
 The model of a bill,^ it will be observed, contains no charging 
 ])art, and such a mode of statement can never be said to l)e abso- 
 lutely necessary;'^ but there are cases where it may still l)e useful, 
 though the comparative simplicity of modern pleading will dimin- 
 ish most materially the occasions for its use.^ 
 
 > Vol. III. 3 See Aiken v. Ballard, Kice Eq. 13; 
 
 2 Story Kq. IM §§ 32, 32 a, 33, and note. M'Crea 77. Piirmort, 10 Wend. 400; Haw- 
 By the I'>|iiity Hull;" of tlie Supreme Court ley v. Wolvertoii,5 I'aige, 522; Afeclianics' 
 of tlie Unitfd Stiite'^, tiie plMintid' is ut Bank v. Levy, 3 I'aiire, GOO; Stall'ord i\ 
 liberty to omit, at liis option, wiiat is com- Brown, 4 Paiae, 88; Story Kq. I'l. § 31; 
 inonly cali-'d the (■iiarf,'inf; part of the hill, Parker v Carter, 4 MunC. 273; 1 Hod' Ch. 
 KCtiinK forth the matters or excuses which Pr. 42. If the plaintitl' wishes to obtain a 
 the delenrlant is supposed to intend to set discovery of facts to antici|)\te and rebut 
 up, by WHV of delence to the Ijill. And tlie defence which may I)e set up by the 
 the p'aintilf may, in the n:uT:itivc or defi-ndant, be. should, in the charyiina; part 
 (•taiini; p. irt iif his bill, state and avoid, by of the bill, state the :intici|iati>d defence 
 counter averments, at his option, any as a pretence of the deleniianr, and then 
 niitter or tiling; which he supftoses will be charge the real facts to lay a foundation 
 insisted upon by tlx^ deti'ndiint. by wjiy of for the discovery which is sought. Stiif- 
 fl"fencc or excu-e. to the case made by the ford r Hrown, 4 Paige, H8. 
 phiintifl' for relief. Rule 21. So in New " Another very important rule," says 
 ihimoshire. liide in Chancery, 3, 38 N. Mr. .lustice Story, '"as to the fame of 
 II. Oo.'i. I)ills, seems now esiabli-hed in I'jighml; 
 
 llule 7, of Chancery Practice in Ma-sa- and that is, i( the bill me in-^ to rely upon 
 
 cliUHctts, provi'les thai the phiintiff, when any confessions, conversatiorts, or admis- 
 
 liis case r(rf|uireH it, nny allege by wa)' of sions of the defendant, either written or 
 
 cbar;:e, any particular fact, for the purjHj.se oral, as proof of ifiiy fact clnirged in the 
 
 of putting it in isHuu. bill (as, for example, of fraud), tiie bill
 
 374 
 
 THE BILL. 
 
 Ch. VI. § r>. Bills used fomiorly to contain a prociso averment of jnrisdiction 
 ill the Court. This is now obsolete, and was never absolutely 
 recjuisite.^ 
 
 G. Ititerrogatintj I\n'L 
 
 The interropitiiiL!; ]iart of a bill was an almost invariable acoom- 
 paniment to a bill, until the recent statute to amend the ])racticG 
 of the Court of Chancery."^ It will be recollected that it is now 
 precisely enacted, " that the bill of com])laint shall not contain 
 any interrogatories for the examination of the defendant."^ 
 
 It will be convenient here to set forth the statutory rules and 
 the regulations of the Court on this subject. 
 
 By 15 tfc 16 Vic. c. 86, § 12, it is enacted, that "within a time 
 to be limited by a General Order of the Lord Chancellor in that 
 behalf, the plaintitl' in any suit in the said Court connnenced by 
 bill may, if he requires an answer from any defendant thereto, file 
 in the liecord Office of the said Court interrogatories for the 
 examination of the defendant or defendants, or such of them from 
 whom he shall require an answer, and deliver to the defendant or 
 defendants so required to answer, or to his or their solicitor,* a 
 
 must expressly charge what such confes- 
 sions, conversations, or admissions are, and 
 to wliom miide; otherwise no evidence 
 thfireot' will be aiiniitted at the hearing." 
 " Whether the hke rule will be allowed to 
 p'evail in America, nuiy be deemed open 
 to much di aibt." See Story Kq- I'l. § 265 a, 
 anil the cases cited in notes, tur a more 
 full statement of the rule and the reasons 
 of it In Smith v. Burnhiim, 2 Sumner, 
 612, it was held that the confessions, ad- 
 missions, and conversations of the defend- 
 ant need not be expressly charged in a 
 bill in Equity, in order to entitle the plain- 
 tiff to use them in proof of i'acts charged, 
 and in issue therein. See Bishop v. Bishop, 
 13 Ala 475. 
 
 If the bill is sworn to, it is perjury for 
 the plaintiff knowingly to make a false 
 charge or averment in the charging, as 
 mucii as if he makes a false statement in 
 the stating part. Smith v. Clark, 4 Paige, 
 3t;8. 
 
 1 See Story Eq. PI § 34; Botsford v. 
 Burr, 11 Conn. 309. By the 21st Equity 
 Rule ''f the Supreme Court of the United 
 States, .Ian Term, 1842, the plaintiff, in his 
 bill, sliall be at liberty to omit, at his op- 
 ti'iii, wh:it is commonly c:illi'd the jurisdic- 
 tion cbiuse of the bill, viz., "' that the acts 
 complained of are contniry to ICqiiity," 
 &c. So in New Hiimiishire. Uule in 
 Chancery, 3, 3S N. H. 005, Appx. In all 
 bills in Equity in the Courts of the United 
 Stites, the citizenship should appear on 
 the face of the bill, to entitle the Court to 
 take jurisdiction; otherwise the bill will be 
 dismissed. Dodge v. Perkins, 4 .Ma^on, 
 435; Stury Eq. i'l. 20, note; Bingham v. 
 
 Cabot, 3 Dall. 382; Jackson v. Asliton, 8 
 Peters, 148 ; Story Eq. PI. § 492; Vo'^e v. 
 Philbrook, 3 Storv,335; see Louisville and 
 R.R. Co. V. Stetson, 2 How. U. S 497; 
 Winnipiseogee Lake Co. v. Worster, 29N. 
 H. 433, 443, 444. For a form of the aver- 
 ment of jurisdiction, see Story Eq. PI. 
 § 34, in note. 
 
 2 Story Eq. PI. §§ 35-39, and notes. A 
 bill which wdiolly omits tlie interrogatory 
 p.irt, is said to be defeitive in Shedd v. 
 Garfield, 5 Vt. 39. But it is nut regarded 
 as absolutelv necessary bv Mr. .Justice 
 Story, Eq. PI. § 38, thougli often highly 
 useful to sift the conscience of the defend- 
 ant, and almost universal in practice. 
 J6iil. See also Eberlv v Gross, 21 Penn. 
 (9 Harris) 251. By Rule 7, of Chancery 
 Practice in Massachusetts, the plaintiff, 
 when his ca^e requires it, may propose spe- 
 cific interrogatories. See Belknap v. Stone, 
 1 AILn, 572. In New Hampshire, "the 
 prayer for an answer and fa- answers to 
 i terrogatories, except where the plaintiff 
 relies on the discovery of the defendant, 
 may be omitted." Rule of Chancery, 3, 
 3jS New Hamp 605, Api)X. In Maine, "a 
 general interrogatory only shall be intro- 
 (luced, and it shall be suflicient to require 
 a full an-wer to all the matters allegrt<l." 
 Rule 1, 37 .Maine, 581, Appx. As to what 
 i~, oramoimts to, the general interrogatory, 
 see Ames v King, 9 Allen, 258. 
 
 3 Ante, p. 319. 
 
 * It will be sufficient if the interrogato- 
 ries are left at the sniicitor's office without 
 beint; delivered to hiin jiersonally. Bowen 
 V. Price, 2 De G., M. &, G. 899.
 
 FORM OF THE BILL. 375 
 
 copy of such interrogatories, or of such of them as shall be appli- Ch. VI. § 5. 
 cable to the particular defendant or defendants ; and no defendant 
 shall be called upon or required to put in any answer to a bill 
 unless interrogatories shall have been so filed, and a copy thereof 
 delivered to him or his solicitor, within the time so to be limited, 
 or within such fuitlier time as the Court shall think fit to direct." 
 
 By the 15th and following General Orders of the 7th of August, 
 1852, it is directed that, — 
 
 " The interrogatories for the examination of the defendant to a 
 bill may be in a form similar to the form set out in Schedule (C.) 
 to these Orders, with such variations as the nature and circum- 
 stances of each |)artieular case may require. 
 
 " In cases in which the plaintifi" requires an answer to any bill 
 from any defendant or defendants thereto, the interrogatories for 
 the examination of such defendant or defendants are to be filed 
 within eight days after the time limited for the ai)pearance of such 
 defendant or defendants. 
 
 "If the defendant appear in person, or by his own solicitor, 
 within the time limited for that purpose by the rules of the Court, 
 the i)laintiif is, within eight days after the time allowed for such 
 appearance, to deliver to the defendant or defendants so required 
 to answer, or to his or their solicitor or solicitors, a copy of the 
 interrogatories so filed as aforesaid, or of such of them as the par- 
 ticular defendant or defendants shall be required to answer. And 
 the copy so to be delivered is to be exaTuined with the original, 
 and the number of folios counted by the Clerks of Records and 
 Writs, who, on finding that such copy is duly stamped and prop- 
 erly written, are to mark the same as an office copy. 
 
 "If any defendant to a suit commenced by bill do not aj)])ear 
 in person, or by his own solicitor, within the time allowed for that 
 purpose by the rules of the Court, and the plaintiff has filed inter- 
 rogatories for liis examination, the plaintiif may deliver a copy of 
 such interrogatories so examined and marked as aforesaid, to the 
 defemlant, at any time after the time allowed to such defen<laut to 
 appearand before his ai)pearance in person or by his own solicitor; 
 or the j)laintiff may deliver a copy of such interrogatories, so ex- 
 amined an<l marked as aforesaid, to the defendant or his solicitor, 
 after the apj»earanc(^ of such defendant in jierson or by his own 
 solicitor, but within eight days after such appearance. 
 
 "A defendant required to answer a bill must put in his plea, 
 answer, or demurrer thereto, not deraun-ing alone, within fourteen 
 days from tlie delivery to him or his solicitor of a copy of tlic 
 interrogatories wliich he is required to answer; but the Court 
 shall have fidl power to enlarge! the time, from time to time, upon 
 ajiplication being made to the Court for that purpose.
 
 376 THE lULL. 
 
 Cii. VI. §r.. "After the time allo-wod by Order IG, for (Wmp: interro,G;atorics 
 
 "^ >^ lor tlie examination ot" any defeiulant, no interrojj^atories are to be 
 
 tiled for the examination of such (U'femhtnt, without special leave 
 of the Court, to be aj)]>lie(l ibr u])on notii-e of motion." 
 
 The form of interrogatories referred to in the 15th Order, is as 
 folk)WS : — 
 
 "In Chancery. 
 
 Jolin Lee I'laintiff. 
 
 James Styles '\ 
 
 and ( Defendants. 
 
 Henry Jones. ) 
 
 Inierrogatories for the Examination of the above-named Defendants in 
 ansioer to the Plaintiff \^ Bill of Complaint. 
 
 " 1. Does not the defendant Henry Jones claim to have some 
 charge upon the farm and premises coiiiprised in the indenture of 
 mortgage of the first of May, one thousand eight hundred and 
 fifty, in the plaintiff's bill mentioned? 
 
 " 2. What are the particulars of such charge, if any, the date, 
 nature, and short effect of the security, and what is due thereon ? 
 
 "3. Are there or is there any other mortgages or mortgage, 
 charges or charge, incumbrances or incumbrance, in any and what 
 manner affecting the aforesaid premises, or any part thereof? 
 
 "4. Set forth the particulars of such mortgages or mortgage, 
 charges or charge, incumbrances or incumbrance ; the date, nature, 
 and short effect of the security ; what is now due thereon ; and 
 who is or are entitled thereto respectively; and when and by 
 Avliom, and in what manner, every such mortgage, charge, or 
 incumbrance was created. 
 
 " The defendant James Styles is required to answer all these 
 interrogatories. 
 
 " The defendant Henry Jones is required to answer the inter- 
 rogatories numbered 1 and 2.^ 
 
 " Y. Y." 
 
 (name of counsel.) 
 
 1 Bv the former English practice the any statement in the bill, unless the plain- 
 interrogatories, which each defendant was titi' desires to do so to obtiiin ti discovery," 
 required tt) answer, were specified in a in which case " the interropatories con- 
 note at the foot of the bill, and such is the tained in the interrogatinj; part of the bill 
 rnle ndopted bv the Supreme Court of the shall be divided as conveniently as may be 
 United States; 4l9t Equity Rule of the from each other, and numbered consecu- 
 Supreme Court of the United States, Jan- tively, 1. 2, 3, &c., and the interrofrntories 
 uarj- Term. 1842; Story Kq I'l. § 847, note. which each defendant is required to an- 
 The 98th, 41st, 42d." 43(1, and 44th of swer, shall be specified in a note at the 
 said Equity Rules declare, "that it shall foot of the bill, in the form anil to the efl'cct 
 not hereafter be necessary to interrogate a following; that is to say, The defendant 
 defendant specially and "particularly upon (A. B.) is required to answer the iiiterrog-
 
 FORM OF THE BILL. 
 
 377 
 
 The forai of interrogatories given is so precise, that it is scarcely Ch. yi. § 5. 
 necessary to refer to the former jjractice on the subject. Of course 
 a defendant is not bound to answer any thing in the bill to which 
 he is not precisely interrogated.^ It was always the rule that the 
 inteiTogatories must in all cases be confined to the substantive 
 charge or allegation, and that the plaintiff cannot extend his inter- 
 rogatories in such a manner as to compel a discovery of a distinct 
 matter not included in the allegation or charge ; - and there is 
 nothing in the present Orders to affect that principle. 
 
 7. The Prayer for Belief. 
 
 The prayer for relief is generally divided into two parts : viz., special and 
 the prayer for specific relief, and the prayer for general relief^ general. 
 
 atories numbered respectivelj' 1, 2, 3, &c. ; 
 and the office copy of the bill taken by 
 each defendant shall not contain any in- 
 terrogatories, except those which such de- 
 fendant is so required to answer, unless 
 such defendant shall re()uire to be furtiish- 
 ed with !i copy of the whole bill." — '■ The 
 note at the foot of the bill, specifyinj^ the 
 interrogatories, which each defendant is 
 required to answer, shall be considered and 
 treated as part of the bill, and theadilition 
 of anv such note to the bill, or any altera- 
 tion m or addition to such note after the 
 bill is fded, shall be considered and treated 
 as an amendment of tlie bill." — " Instead 
 of the words of the bill now in use, pre- 
 ceding the interrogating part thereof, and 
 beginning with the words. To the end, 
 theretbre, there Bhall hereafter be used 
 words in the form and to the effect follow- 
 ing: To the end, therefore, that the said 
 defendants may, if they can, show why 
 your orator (the plaintitT) should not have 
 the relief herel>y prayed, and may, upon 
 their several and respective corporal oaths, 
 and aecordiiie to the best and utmost of 
 thfir several knowle'lge. remembrance, 
 information, and belief, full, true, direct, 
 and perfect answer make to such of the 
 Beve^^d interrogatories hereinafter num- 
 bered and set f(irth, as by the note hereun- 
 der written, fhev are respectively required 
 to answer; that is to say, '1. Whether, 
 &c.; 2. VViietlier, &c.' " — "A defendant 
 shall lie at liberty, by answer, to d(!cliiie 
 answering any interrogatory or part of an 
 iiit<'rrot,'atr)ry, from answering which lie 
 mif(hl have [)r'ilecfed hini'-elfliy demurrer; 
 and III' shall be at liberty so to decline, 
 notwitlistan'ting he slrdl answer other 
 parts of the hill, frmi wliicli he might have 
 protected him«e|f by demurrer." These 
 ruleH are liorrowed fruni the former Kn^lii^h 
 Rules in dianeery upon the same subject. 
 Storv r,(i. I'l § s'»7, note. 
 
 J In Nlassachii'-i'ttt ("hancery Practice, 
 under IJule 4, when the case reiinin^s It, the 
 plaint It)' may propose specKic nilerrogato- 
 ries. Uule h provides that the defendant 
 
 shall be required to answer fully, directly, 
 and particularly to everj- material allega- 
 tion in the bill.' as if he had been thereto 
 particularly interrogated. See Methodist 
 Episcopal Church v. Jiiques, 1 John. Ch. 
 65. The practice in New Hampshire eon- 
 forms with the above rule in -Massachu- 
 setts. Miles V. Miles, 27 N. IT. 440, and 
 such is understood to be the practice where 
 there is no rule on the subject, lb. 445; 
 see Storv Eq. I'l. § 38 ; Hagthorp v. Hook, 
 1 Gill & .J. 270;" Salmon v. Claggett, 3 
 Bland, 125. The general interrogatory is 
 in substance as follows; viz : "That the 
 defemlant may full answer make, to all and 
 singular the premises, fully and particular- 
 ly, as though the same were repeated and 
 he speciallv interrogated," &c. See Ames 
 V. King, 9 'Allen, 258. 
 
 2 James v. M'Kernon, 6 John. 543 ; 
 Woodcock V. IJennett, 1 Cowen, 734 ; Me- 
 chanics' Hank v. Levy, 3 Paige. 606; Con- 
 sequa v Fanning, 3 Jolin. Ch. 596; Kisor 
 I'. Stancifer, Wright, 323. But a variety 
 of questions niaj- be founded on a single 
 charge, if they are relevant to it. Story 
 Ec] PI. § 37. It may be noticed here, that 
 in Attorney-General v. Whorwood, 1 Ve- 
 se}', 624, where interrogatories in a bill 
 were directed to particular facts which 
 were not charged in the preceding part, 
 and tlie defendant, though not bound to 
 answer them, did so, and the answer was 
 replied to; L<ird Ibirdwicke held that the 
 informality in the manner of charging was 
 supplied by the answer, and tliat tlie facts 
 wc're properly j)ut in issue ; " for a matter 
 nviy he put in i-^sue by the answer as well 
 as liy the bill, and, if replied to, either 
 partv mav examine to it." 1 Vesev, 538; 
 St<irv Kq! Pi. § 30. 
 
 " 'riie latter can never be properly and 
 safely omitted; because, if the phiintilf 
 should mistake the ndief, to which he is 
 enlilli'd, in hi-< 'Special i>rayer, llie Court 
 may yet alliird him the relief to which he 
 has a ri^rlit, under the prayer of general 
 relief, t>rovided it is such relic^f as is 
 agreeable to the ca.se made by the bill.
 
 378 
 
 THE iniX. 
 
 Deficioncy 
 •supplied 
 iiiuK'r prayer 
 tor general 
 relief'; 
 
 liut such 
 relief must be 
 consistent 
 with relief 
 specifically 
 prayed, and 
 case made 
 by bill. 
 
 Declaration 
 that defuud- 
 
 Altliouoli there is no doubt but that a mere prayov for general 
 vrVwi' was formerly, in most cases, suffieient to enable the ])laintiff 
 to obtain such a tlecree as his case entitled him to,^ yet it was 
 tlie usvial practice to precede the request tor relief generally, by a 
 stateinent of the specific nature of the decree Mdiich the plaintiff 
 considered himself entitled to, under the circumstances of his case; 
 and now, the ])laintiff Tuust specifically pray for the relief to which 
 lie may conceive himself entitled, as Avell as for general relief;^ 
 and where he is entitled to no other relief against any defendant, 
 he must pray for costs :^ with the one exception, that he may 
 make the servant of a corporation a defendant, for the purpose of 
 discovery.* 
 
 Tliis ]>art of the bill, therefore, should contain an accurate speci- 
 fication of the matters to be decreed; and, in complicated cases, 
 the framing of it requires great care and attention : for, although 
 w^here the j)rayer does not extend to embrace all the relief to 
 which the plaintiff may at the hearing show a right, the deficient 
 relief may be supplied under the general prayer, yet such relief 
 must be consistent with that specifically prayed, as well as with 
 the case made by the bill : for the Court will not suffer a defendant 
 to be taken by surprise, and permit a plaintiff to neglect and pass 
 over the prayer he has made, and take another decree, even though 
 it be according to the case made by his bill.^ Therefore, in /Soden 
 
 Ld. Red. 38, 45; Coop. Eq. PI. 13, 14; 
 English V. Foxall, 2 Peters, 595; Colton 
 V. Koss, 2 Paige, 396; Driver v. Fort- 
 ner, 5 Porter, 10; Thomason v. Smith, 7 
 Porter, 144; Peck v. Peck, 9 Yerger, 301; 
 Isaacs V. Steele, 3 Scam. 104; Strange v 
 Watson, 11 Ala. 324; Jordnn i'. Clarke, 1 
 C. E. Green (N. J.). 243; Simplot v. Sim- 
 plot, 14 Iowa (6 Willi.), 449; Wilson v. 
 Horr, 15 Iowa (7 With ), 4S9; Espinola v. 
 Blasco, 15 La. Ann. 426; Vandant v. All- 
 moii, 23 111.30; Graham v. Berrvman, 4 
 C. E. Green (N. .J.), 29, 34; Read\'. Cra- 
 mer, 1 Green Ch. 277; Landis v. Olds, 9 
 Min. 90. Relief not specifically praj'ed, is 
 within the general relief Beaumont v. 
 B'lultbee. 5 Sumner's Vesey, 485; Story 
 Eq. PI. § 41, note. If there is no prayer 
 of general relief, then if the plaintifi' should 
 mistake the relief to which he is entitled, 
 no other relief can be granted to hiui, and 
 his suit must fail, at least unless an amend- 
 ment of the prayer is obtained. Story Eq. 
 PI. § 41; Driver r. Fortner, 5 Porter, 10; 
 Morrison r. Bowman, 29 Cal. 337; Tho- 
 mason V. .Smith, 7 I'orter, 144; Peck v. 
 Peck, 9 Yerger, 301 ; Halsted v. Meeker, 
 3 C. E. Green (N. .J.), 136. For a form of 
 prayer for relief in a bill, see Story Fq PI. 
 § 40 no':e, 41 note: Colton v. Koss, 2 Paige, 
 396, and ca'-es there cited. 
 
 In a bill between (laitners, apraj-erthat 
 the defendunt maj- be held to render an 
 account of all moneys and ettects of the 
 
 firm received by him, and of all other 
 matters relating to the concern, is equiva- 
 lent to a prayer for general relief. Miller 
 V. Lord, 11 Pick. 11. • 
 
 In New Hampshire, the bill may con- 
 clude, " and thereupon the plaintiff prays," 
 setting forth the special relief to which he 
 supposes himself entitled, "iind for such 
 other relirf as may be just." If an in- 
 junction or other special order, pending 
 the suit, is required, it may be specially 
 asked for. Rule of Chancery, 3, 38 N. 
 Hainp. 605, 606. So also in 21st Equity 
 Rule of the United States Courts. In 
 Iniliana, the Court will grant any relief 
 ciilleii for by the case, and the issue made, 
 without regard to the prayer. Hunter v. 
 McCoy, 14 Ind, 528. 
 
 1 Cook V. Martyn, 2 Atk. 2, 3; Grimes 
 V.French, ib. 141; Partridge v. Haycrofr, 
 11 Ves. 570, 574; Wilkinson v. Beal, 4 
 Mad. 408. 
 
 2 15 & 16 Vic. 0. 86, § 10; see form of 
 bill. Vol. HI. 
 
 3 Bea<lles V. Burch, 10 Sim. 332, 337; 
 4 .Jur. 189; Bowles v. Stewart, 1 Sch. & 
 Lef. 227. 
 
 •* Dummer v. Ci^rporation of Chippen- 
 ham. 14 Ves. 245; h6 Texier v. Mar- 
 gravine of Anspach. 15 Ves. 164; Ld. Red. 
 188; itnte, pp. 142, 143, 296, 322. 
 
 5 Lamlis r. Olds, 9 Miu. 90. A particu- 
 lar prayer fur relief, although very proper 
 and convenient, is not essential, since under
 
 FORM OF THE BILL. 
 
 379 
 
 V. Sode?i,^ where a bill was filed against a woman to compel 
 her to elect between the provision made for her by a will, and that 
 to which she was entitled nnder a settlement, and the case made 
 by the bill was solely calculated to call npon her to elect. Lord 
 Eldon held, that a declaration that she had elected, so as to con- 
 clude her, could not be maintained under the prayer for general 
 relief: being inconsistent both with the case made by the bill, and 
 with the specific prayer that she should make her election. And 
 so, where a bill ^ was filed by a person in the character of mort- 
 gagee, praying a sale under a trust, to which it appeared he was 
 not entitled, the Court Avould not j^ermit him, under the general 
 prayer, to take a decree that the defendant might redeem or be 
 foreclosed ; although it was the relief which properly belonged to 
 his case,^ And in like manner, where a bill was brought for an 
 
 Ch. VI. § 5. 
 
 ant had 
 elected, not 
 granted, 
 under prayer 
 that he may 
 elect. 
 
 No decree of 
 foreclosure, 
 niider prayer 
 for sale. 
 
 a general prayer for relief a plaintiff nia}' 
 pr.iy at the bar a specilic relief not partic- 
 ularly prayed fur in the bill, if otherwise 
 entitled to tlie s^ime. Wilkinson v. Beal, 
 
 4 Mad. 408; Cook v I\Iartyn, 2 Atk. 2; 
 Grimes u. French. 2 Atk. 141; Colton v. 
 Eoss, 2 Paige, 396 ; Foster v. Cooke, 1 
 Hawks. 509; Lloyd v. Brewster, 4 Paige, 
 537; Lingan t\ Hieiulerson, 1 RInnd, 2o2; 
 Driver v. Foriier, 5 P..rter, 10; Thompson 
 V. Smithson, 7 Porter, 144; Peck v. Pi'ck, 
 9 Yerger. 301; Alien v. Coffman, 1 Bibb, 
 469; Wilkin v. Wilkin, 1 John. Ch. Ill; 
 Cook r. Mancius, 5 John. Ch. 89; Bp'wn 
 V McDonald, 1 Hill, 302 ; (Jibson v. M'Cor- 
 mick, 10 Gill & J. 66; Townsend i'. Dun- 
 can, 2 Bland 4-5; Marine and Fire Ins. &c. 
 V. Karlv l{. M. Charlt. 279; Hefplier v. 
 Buck, 5 B. M -n. 96, 98: Thomas v. Ilite, 
 
 5 B. Mon. .'(93. The relief given under the 
 general prayer mu>t be agreeable to the 
 case made 6y the bill. Story P'q. PI. § 41 ; 
 Ciialmer.s r. Chanjljers, 6 Ilarr. & .). 29; 
 Ilob-onv. .M'Arthur, 10 Peters, 1^2; Head 
 i\ Cramer, 1 (Jreen Ch. 277; Franklin t'. 
 Osj,'oud, 14 .John. 527; Englisli v. Fo.xall, 
 2 Pet'TS, 595; Kibl.r r Whiteman, 2 liar. 
 401; Pennock I-. Kla, 41 N. H. 1^9,192; 
 Ciissadyf. Woodhury. 13 Iowa (5 With ), 
 113. For Ihe (J'lui t will gr:int such relief 
 only ns the ca-^e stnted will justify, and 
 will not ordinarily be so indulgent as to 
 permit ii bill framed for one inirpose to 
 answer another, e>;peciiilly, if the defend- 
 ant may be surpriseil or prejudiced tlnTeby. 
 And where there is no olistruction to the 
 jmiiiciil'ir TcVicf ^iTnyc.d, t\Hi jilaintifT cim- 
 noc abanlon that, and ask a diHerent 
 dft-re.i: undtir the general |)rayer. Allen v. 
 Coffman. I I'.ibb, 469; Pillow v. Pillow, 5 
 Yerpcr, 420; 'I'hompson v Smithson, 7 
 I'lirier. 144; Forder v. (Jooke, 1 Hawks, 
 609; Colton c. Boss, 2 Paige, 396; Clial- 
 m'TS i». Chambers, 6 Har. & .J. 29; Gibson 
 V. M'Cormick, 10 (Jill & .1. 66; Town-end 
 r. Duncan, 2 {'.land, 45; King «. Knssett, 
 
 "2 Y. & .1. 33; M(, I'.nil.-y v. Ke' ton, 8 
 Wend. 3:59 ; 1 iloff. Ch Pr. 49, and note; 
 
 Read v. Cramer, 1 Green Ch. 277; Pleasants 
 V. (ilasscock, 1 Sni. & M. Ch. 17 ; Pennock 
 V. Ela. 41 N. H. 189. 
 
 In Treadwell v. Brown, 44 N. H. 551, it 
 Wits held, that under the praj'er for general 
 relief, the plaintiff may have such relief 
 as he is entitled to, without regard to any 
 defect in the praver for special relief, 26 
 Law Kep. 48; Franklin v. Greene, 2 Allen, 
 519; Danforth r. Smith, 23 Vt. 247; pro- 
 vided it does not conflict with that specifi- 
 callv pr ived for. Stone v. Anderson, 26 
 N. H. 506; Hillcary v. Hurdle, 6 Gill, 105. 
 Where the bill sets forth two grounds for 
 relief, and prays for special relief on one 
 ground, and also for general relief, but the 
 parties arc not sufficient for any other than 
 the special relief, the bill is not bad for 
 niultifiirioui-uess, but the special relief will 
 be granted. JIayne v. Griswold, 3 Sandf. 
 S. C. 463. 
 
 In a foreclosure suit, if the mortgiige is 
 forfeited, and the pluintitf entitled to a 
 decree of foreclosure at the time of the 
 commencement of the suit, a decree for 
 the whole amount due upon the mortgage, 
 whether it becomes due before or after the 
 tiling of the bill, is strictly within the 
 prayer for relief, and such as "the case stated 
 will justifv. Jordan v. Clarke, 1 C. E. 
 Green (N.J.), 243. 
 
 1 (;iteii by l^ord Eldon, in Hiern «. Mill, 
 13 Ves. 119. 
 
 2 i'alk V. Lord Clinton, 12 Ves. 48, 57; 
 sec iiNo Joue^i r. Jones, 3 Atk. 110, 111; 
 Cha[>mati r. Chapman, 13 Beav. 308; 15 
 Jur. 265; .Johnson i'. Fcsscnme^-er, 25 
 Beiiv. 88, 96; 3 De G. & J. 13; Story En. 
 PI. §42.' 
 
 " A bill wa.s filed to have a mortirago 
 deed recorded, wiiich had bec-n omitted to 
 1)0 recorded within si.x months, in which 
 was a general prayer for relief. A decree 
 of sal(M)f the mortgaged promises was held 
 not to be withm the relief prayed by the 
 bill. Chalmers V Chaiobei-s, 6 Ilarr. &• .L 
 29; see Cliunibers v. Chalmers, 4 Gill & J. 
 420.
 
 380 
 
 THE KILL. 
 
 On. VI. § 
 
 Specific per- 
 formance of 
 an ajireeinent 
 not decrocil, 
 ■where parol 
 variation 
 proved ; 
 
 but in suits 
 for tithes, 
 plaintiff may 
 have a decree 
 for a modus 
 proved by 
 defendant. 
 
 Plaintiff may 
 have relief 
 under general 
 prayer, when 
 the foots 
 which entitle 
 him are put 
 in issue. 
 
 niiimity ov ront-charujo uiidn- a will, and the counsel for the ])lain- 
 titf i)rayed at the bar that they niiyht droj) the demand for the 
 annuity, and insist upon the land itself, Lord llardwieke denied 
 it : because it came within the rule before laid down.^ Upon 
 the same ])rincii>le, where a vendor filed a bill for a specific per- 
 formance aoainst a purchaser, who had been in possession, under 
 the contract, for several years, but failed to establish his ri.f2;ht in 
 consequence of a defect in his title, the Court refused, under the 
 prayer for general relief, to direct an account of the rents and 
 profits against the purchaser, although he had stated by his answer 
 that he was Avilling to pay a fair rent.^ And so, where a bill 
 was filed for the specific jjerformance of a written agreement, and 
 ])arol evidence was read to prove a variation from it, the bill was 
 dismissed with costs : the plaintiff not being allowed to resort to 
 the substantial agreement proved on the part of the defendant.' 
 But though, in general, a plaintiff can only obtain the decree he 
 seeks by his bill, the case of a plaintiff in a suit for tithes is differ- 
 ent : for there, though a plaintiff may fail in establishing his right 
 to tithes in kind, he may yet have a decree for a modus admitted 
 by the defendant's answer.* 
 
 The rule, with regard to the nature of the relief which a plain- 
 tiff may have under the prayer for general relief, was laid down 
 by Lord Eldon, in Hiern v. MilU His Lordship there said, that, 
 as to this point, "the rule is, that if the bill contains charges, 
 putting facts in issue that are material, the plaintiff is entitled to 
 the relief which those facts will sustain, under the general prayer ; 
 but he cannot desert specific relief prayed, and imder the general 
 prayer ask specific rehef of another description, unless the facts 
 and circumstances charged by the bill Avill, consistently with the 
 rules of the Court, maintain that relief." ^ In that case, a bill had 
 been filed by an equitable mortgagee against the mortgagor, and 
 a person who had purchased from him with notice of the incum- 
 brance, and it prayed an account, and in default of payment a 
 conveyance of tlie estate ; and although it charged the ])urchaser 
 with notice, it did not i)ray any specific relief against him indi- 
 
 ant, upon 'the offer by the plnintiff in his 
 bill to perform the aj.jreement specifically 
 on his part; Ihid. See atso Gwynn v. 
 Lethbrigge, 14 Ves. 586. 
 
 4 Cart V. Ball, 1 Ves. S. 3. 
 
 6 1.3 Ves. 119; see mIso Brown v. Sewell, 
 11 Hare, 49, more fully reported on this 
 point, 17 .lur. 708; and Brookes j;. Boucher, 
 3 N. U. 279, M. K., where relief was grant- 
 ed under the general praver; and Hill v. 
 (ireat Northern Kailwav Company, .5 De 
 G., M. & G. GO; 18 ,Jur."685. where it was 
 refused. 
 
 6 See Casadj' v. Woodbury, 13 Iowa (5' 
 With.), 113. 
 
 1 Grimes v. French, 2 Atk. 141. 
 
 2 Williams v Sliaw, 3 Russ. 178, n. 
 
 3 Legnl r. Miller, 2 Ves S. 299; see also 
 Mortimer v. Orchard, 2 Ves. .J. 243; Legh 
 v. Haverfield, 5 Ves. 452, 457; Hanbury v. 
 Litchfield, 2 M. & K. 629, 633. But al- 
 tliough, in such a case, the plaintiff cannot 
 liave a decree for a different iigreement 
 from that set up by his bill, the defendant 
 may have a decree on the agreement, such 
 as he has proved it to be. Fife v. Cla3'ton, 
 13 Ves. 546; 1 G. P. Coop. t. Cott. 351. 
 The old course required a cross-bill, but 
 the practice now is to decree a specific 
 performance at the instance of the defend-
 
 FOEM OF THE BILL. 381 
 
 vidually. Lord Eldon, however, thought that the relief asked Cn. VI. § 5. 
 
 against him at the hearing was consistent with the case made by > ' 
 
 the bill, and accordingly decreed an account to be taken of what 
 was due to the plaintiif by the mortgagor : to be paid by the pur- 
 chaser, who was to have his election to pay the money and keej) 
 the estate.^ And so, in Taylor v. Tabrum^ where a bill was 
 filed against two trustees, alleging that only one of them had 
 acted in the trusts, and praying relief against that trustee only, 
 to which the two trustees put in an answer, admitting that they 
 had both acted in the trusts, Sir Lancelot Shadwell V. C. made 
 a decree against the two, charging them both with the loss occa- 
 sioned by the breach of trust. It is to be observed that, in order 
 to entitle a plaintiff to a decree, under the general prayer, different 
 from that specifically prayed, the allegations relied upon must not 
 only be such as to afford a ground for the relief sought, but they 
 must have been introduced into the bill for the pui-jDOse of showing 
 a claini to relief, and not for the mere purpose of corroborating the 
 plaiutifi''s right to the specific relief prayed : otherwise, the Court 
 would take the defendant by surprise, which is contrary to its 
 principles.^ Therefore, where a vendor filed a bill for a specific 
 performance, but, owing to his not being able to make out a title 
 to some part of the property, was unable to obtain a decree for 
 that purpose, it was held, that he could not, under the prayer for 
 general relief, obtain an inquiry into the management of the prop- 
 erty during the time it was in the vendee's possession, although 
 the bill did contain charges of mismanagement : which, however, 
 had been intro<luced, not with the view to obtain compensation, 
 but to establish the fact of acceptance of the title by the defend- 
 ant.* 
 
 The principle upon which the Court acts, under these circum- Fraudulent 
 stances, receives considerable illustration from what fell from Lord ^^I'^^l^ ^^ igg 
 Kedesdale, in lioche v. Morydl.^ The bill in that case stated delivered up, 
 various dealings between the plaintiff and defendant, imputing ^"general ""^ 
 fraud and unfair dealing, .and various usurious charges, overcharges account. 
 and mistakes in accounts delivered, and prayed a discovery of the 
 several transactions, and a general account, and also general relief 
 To this bill the defendant pleaded a release made by the plaintiif; 
 
 1 13 Ve». 114 123. purchase of land allcgod to be evidenced 
 
 •i (J >5iin. 281. by a written lueiiioiaiKluiii, and tliatallega- 
 
 a .S''e tlie remarks of Sir W. Paf,'e Wood tion was not .sustained by liie pnjof, it was 
 
 V. Cd.ord llatherley) in Other M .Smurtli- lield, that tlie plaintiif eould not, under the 
 
 waile, L. K. >> V.(\. 4a7, 441, quoted anlu, ])rayer lor general relief, olitiiin cninpcn-a- 
 
 3U7 note; Laiidi.s f. Olds, Mm. 90. tioii for iniprovenient.s upon the lands 
 
 * Stevens v. tJuppy, 3 Huhs. 171, \^'>\ Smith v. Smith, 1 Ired. Eq. b3. On a bill 
 
 see also Fenaby i'. llobson, 2 I'hil. 2.0.">, to resciml a contract, the Court cannot 
 
 257; Chapman f. Chnpman, 13 Bcav. 308; decree a specilic execution. Koche.stur v. 
 
 .15 .Jur. •.;•;■■.. .>(> wlnre a bill was tiled for Anderson, i>itt. Sel. Ca. 14G. 
 
 the specific execulion ol a cDntract lor the ^ 2 Sch. &, Lef. 721, 72"J.
 
 382 
 
 THE BILL. 
 
 Cii. VI.? 5. 
 
 Rule stricth' 
 enforced in 
 cases of fraud. 
 
 Interest on a 
 balance, not 
 decreed 
 under general 
 relief. 
 
 Mild a question arose, wliether, il" the release a])i)eare(l to be IbuiKled 
 on a vieious oonsuleration, and was in itself void, the Court could 
 set it aside, there l)ein<^ no s})ecitie ])rayer lor that j»urj)ose ; and 
 Lord lledesdale, in delivering his ojjinion in the House ot" Lords 
 upon (he point, expressed himself as follows: "It has been ob- 
 jected that the bill does not state the release, and pray that it 
 may be set aside. It seems doubtful whether the release has been 
 put in issue by the bill ; but whether it is so or not, if the release 
 appears to be founded on a vicious consideration, it is in itself 
 void, and the Court need not set it aside, but may act as if it did 
 not exist. The bill prays the general account, and all the relief 
 necessary for the jiurpose of obtaining that account. This jn'ayer 
 is siiHicient. It never was thought of that a bill for an account of 
 fraudulent dealings must specially pray that every bond, every 
 instrument taken by the defendant without sufficient considera- 
 tion, should be set aside. The prayer for general relief is suffi- 
 cient for the purpose; and upon that prayer, the Court may give 
 every relief consistent with the case made by the bill, and con- 
 tinually does give relief in the manner specifically prayed by the 
 bill, and sought for only by the prayer for general relief." 
 
 The rule, that the Court will only grant such relief as the plain- 
 tiff is entitled to, upon the case made by the bill, is most strictly 
 enforced in those cases where the jilaintiff relies upon fraud. Ac- 
 cordingly, it has been laid down, that where the plaintiff has rested 
 his case in the bill upon imputations of direct 2)ersonal misrepre- 
 sentation and fraud, he cannot be permitted to supjjort it upon 
 any other ground ; ^ but if other matters be alleged in the bill, 
 which will give the Court jurisdiction as the foundation of a 
 decree, the proper course is to dismiss only so much of the bill 
 as relates to the case of fraud, and to give so much relief as under 
 the circumstances the plaintiff may be entitled to.^ 
 
 It is to be observed that the Court will not, in general, decree 
 interest upon a balance, unless where it is specifically asked for by 
 the bill.** Where, howevei", from peculiar circumstances, inter- 
 est was not properly due at the time the bill was filed, and a right 
 to interest has subsequently accrued, the Court has directed interest 
 to be computed, although there was no prayer to that effect in 
 the bill. Thus, in Turner v. Turner^^ interest was, by order on 
 
 1 WilcJe V. Gibson, 1 H. L. Ca. 605; 
 Glascott V. Lang, 'l I'liil. 310, 322; I'arr «. 
 Jewell, 1 K. & J. 671; Lufi' v. Lord, 11 
 Jur. N. S. 50, L. C. Tlie use of the word 
 "fraud" does not bring tlie case within 
 this rule, unless the case alleged is one of 
 fraud properly socalleri. JMarsiiail v. Slad- 
 Oen, 7 Hare, 42», 443; 14 Jur. 106, 109; 
 M'Calmoutv. Kaukin, 8 llare, 116; 14 Jur. 
 475. 
 
 2 Archbold v. Commissioners of Chari- 
 table Bequests for Ireland, 2 H. L. Ca. 440, 
 459; Harrison v. Guest, 6 De G , M. & G. 
 424,438; 2 Jur. N. S. 911; In Head v. 
 Cramer, 1 Green Ch. 277, a bill was liled 
 for reliel'on tlie ground of Iraud, and relief 
 was grafted on the ground of mistake. 
 
 3 Weymouth v. Buyer, 1 Ves. J. 416, 
 426. 
 
 4 IJ. & W. 39,. 43, and see Hollings-
 
 FORM OF THE BILL. 
 
 383 
 
 further directions, directed to be computed upon the baUiuce in 
 executors' hands, although not prayed by the bill : because, at the 
 time the bill was filed, there did not appear to have been any 
 money in their hands, and the bill could not advert to those cu- 
 cumstances which arose subsequently. 
 
 Upon the principle that the Court will not grant a different 
 relief from that prayed by the bill, it was held by Sir John Leach 
 V. C. that where a bill merely prayed a commission to examine 
 witnesses abroad, in aid of an action at Law, the Court could not 
 grant a motion that the plaiutifl" might be at liberty to examine 
 one of the witnesses, who had come to this country and was about 
 to go aAvay again, de bene esse, but said that the bill might be 
 amended for that purpose.^ 
 
 But although the Court will not, under the general prayer, 
 grant a different relief trom that prayed by the bill, yet, when it 
 appears that the plaintiff is entitled to relief, although it be differ- 
 ent from that which he has specifically prayed, it will sometmies 
 allow the cause to stand over, with liberty to the plaintiff to 
 amend his bill.^ This point was decided by Lord Rosslyn, in 
 JBeaumofit v. Houltbee,^ in which case it appears that, after pub- 
 lication had passed, the relief prayed for specifically was thought 
 not to be that to which the plaintifi" was entitled ; he therefore 
 applied for liberty to amend, by adding an additional prayer for 
 relief^. which was resisted upon the ground that the answer put in 
 was applicable to the specific relief already prayed; but, after 
 much discussion. Lord Rosslyn determined that it was competent 
 to the plaintifi" to amend, by adding the additional prayer. In 
 I-'alk V. JLord Clinton,* above referred to, it appeared at the hear- 
 uig that the plaintiff was not entitled to the specific relief prayed 
 for, and that, in order to enable the Court to grant the relief upon 
 the case made by his bill, which might, properly, be given, viz., a 
 foreclosure of a mortgage, it wnndd be necessary to bring an addi- 
 tional party before the Court: an order was accordingly made 
 giving the plaintiff leave to amend his bill by adding parties, and 
 praying sucli relief as he might l)e advised. 
 
 The instances, however, in which this will be done are confined 
 to those where it aj»pears, from the case made by the bill, that the 
 plaintiff is entitled to relief^ although difierent from that sought 
 
 Cn. VI. § 5. 
 
 Examination 
 de bene esse, 
 not permitted 
 imder prayer 
 for commis- 
 sion. 
 
 In some 
 cases, the 
 Court will 
 allow cause 
 to stand over, 
 with liberty 
 to amend 
 prayer. 
 
 Where the 
 amendment 
 involves the 
 introduction 
 of a new 
 party. 
 
 Only done 
 where it 
 appears that 
 the plaiutitt' 
 
 worth V. Shakeshaft, 14 Heav. 492; Daveti- 
 port V. Stadbid, ih. Sl'.», 3:34 ; 2 De G., M. & 
 G. 901; .Jolinsun v. I'rendergast, 28 liuav. 
 4K0; see iilso IJovd i'. .lones, 12 Sim. 4U1; 
 Frj- V. Fry. U) ■)ut. N. S. 983, V. C. S. ; 
 and post, Chap. X,\X., Further C'ongitlera- 
 liim, 
 
 * Atkins V. Palmer, 5 Mad. li». 
 
 2 .Sf;e I'eiinock r. hla, 41 N. H. 189. 
 Where the facts tml furtli in Uie bill would 
 
 not authorize other reliefthan that speciiilly 
 prayed tur, the prayer will not be ainonded. 
 llulsted V. Meeker, 3 C. E. Ureen (N. J.), 
 13t;, I'M. 
 
 a 5 Ves. 485, 495; 7 Ves. 599, on a re- 
 hearinf; by Lord Hldoii; stilted on this 
 jjoiut, (tri/. in I'alk v. Lonl ('lintoii, 12 Ves. 
 03; see also Cook v. Martyii, 2 Aik. 2. 
 
 * 12 Ves. 48, 04, CO.
 
 384 
 
 THE BILL. 
 
 Ch. VI. § 5. 
 
 is ontitloil to 
 roliot", tlioui;h 
 not to that 
 siH'cilically 
 prayed ; 
 
 but plaiutitT 
 (.'amiot make 
 a new ease. 
 
 Greater lati- 
 tude in cases 
 of infants ; 
 
 and' informa- 
 tions for 
 charities. 
 
 Of alternative 
 prayer: 
 
 by tho specific ]>raycr : where tlie olijoet of the proposed anieiifl- 
 TiuMit is to make a new ease, it will not be })enuitte(L Tims, 
 where a bill was tiled for the specific performance of an agreement 
 for a lease to the plaintilf alone, and it was stated, by the defend- 
 ant's answer, that the agreement liail bi'cn to let to the plaintiff 
 and another person jointly, but the plaintitf nevertheless rejdied to 
 the answer, and ])roceeded to establish a case of letting to liimself 
 alone, in which he failed : Lord Kedesdtde, upon application being 
 made to him to let the cause stand over, with liberty to the plain- 
 tiff to amend, by adding the otlier lessee as a party, said that such 
 a proceeding would be extremely imi)roj)er; it was not like letting 
 a case stand over to add a party against whom a decree in a plain 
 case could be made, but for the purpose of making a new case ; for 
 a new case it would be if founded on a new agreement.^ In that 
 case, his Lordship stated that the ordinary practice, where a party 
 has mistaken his case, and brings the cause to a hearing under such 
 mistake, is to dismiss the bill, without prejudice to a new bill ; and 
 this practice was adojjted by him in Lindsay v. Lynch^ and is in 
 accordance with the decree of Sir William Grant M. K. in Wooll- 
 rtxan v. Hearn^ and has been subsequently followed by Lord Lynd- 
 hurst, in Stevens v. Gnpx>y.^ 
 
 But although the Court is thus strict in requiring that, where 
 the plaintiff prays specific relief, it must be such as he is entitled 
 to from the nature of the case made by the bill, yet where infants 
 are concerned this strictness is relaxed ; and it has been deter- 
 mined, that an infant plaintiff may have a decree upon any matter 
 arising upon the state of his case, though he has not particularly 
 mentioned or insisted upon it, or prayed it by his bill.^ 
 
 In cases of charities, likewise, the Court will give the proper di- 
 rections, without any regard to the propriety or impropriety in the 
 j^rayer of the information.*' 
 
 It sometimes happens that the plaintiff, or those who advise 
 him, are not certain of his title to the specific relief he wishes to 
 pray for ; it is, therefore, not unusual so to frame the prayer that, 
 if one species of relief sought is denied, another may be granted. 
 Bills with a prayer of this description, framed in the alternative, 
 are called bills with a double aspect.'' But, it seems that the alter- 
 
 1 Deniston ?;. Little, 2 Sch. & Lef. 11, 
 n ; Watts v. Hyde, 2 Phil. 40G; 11 .lur. 
 979; see al.«o Griggs v. Staplee, 2 l)e G. & 
 S. 572; 13 .Jur. 2'J; Phelps v. Prothero, 2 
 De G. &S. 274; 12 .lur. 733. 
 
 2 2 Sell. & Lef. 1. 
 
 3 7 Yes. 211. 222. 
 < 3 Russ. 171, 186. 
 
 6 Stapilton v. Stapilton, 1 Atk. 6; see 
 anU, p. 77. 
 
 8 Attorney-General v. Jeanes, 1 Atk. 
 355; see ante, p. 14. 
 
 7 Bennet v. Vade, 2 Atk. 325; Ld. Red. 
 39; Story K(j. 1^1. § 40, and cases in note. 
 If the plaititiir doubts his title to the relief 
 lie wishes to pray, the bill should be frained 
 with a double aspect, so that, il' the Court 
 should decide against him in one view of 
 the case, it may j'ct afford him assistance 
 in another. Stoiy Eq. PI. § 42; Colton v. 
 Ross, 2 Paige, 306; Lloyd v. Brewster, 4 
 Paige, 537; Cooper Eq. PL 14; M'Connell 
 ■0. M'Connell, 11 Vt. 290; Strange v. Wat- 
 son, 11 Ala. 324; Shields v. Barrows, 17
 
 rOR]VI OF THE BILL. 
 
 385 
 
 native prayers must not be founded on inconsistent titles ; thus, a 
 plaiutift' cannot assert a will to be invalid, and at the same time 
 claim to take a benefit on the assumption of its validity.-^ 
 
 It is a principle of Equity, that a person seeking relief in Equity 
 must himself do what is equitable ; '^ it is therefore required, in 
 many cases, that a plaintiff should, by his bill, offer to do whatever 
 the Court may consider necessary to be done on his part towards 
 making the decree which he seeks just and equitable, with regard 
 to the other parties to the suit. Ui^on this principle, where a bill 
 is filed to compel the specific performance of a contract by a de- 
 fendant, the plaintiff ought by his bill, to submit to perform the 
 contract on his part ; and it is to be observed, that the eflect of 
 such submission will be to entitle a defendant to a decree, even 
 though the plaintiff' should not be able to make out his own title 
 to relief, in the fonn prayed by his bill.'^ 
 
 Upon the same principle, it Avas formerly required, that a bill 
 for an account should contain an offer on the part of the plaintiff 
 to pay the balance, if found against him ; but it seems that such 
 an offer is not now considered necessary.* And so, where a surety 
 brought an action upon an indemnity bond against his principal, 
 to recover moneys Avhich he had been compelled to pay on his ac- 
 count, and the principal filed a bill in Equity for an injunction, 
 and to have the bond delivered up to be cancelled, suggesting 
 
 Ch. VL § 5. 
 
 entitles a 
 defendant to 
 a decree, 
 witliout 
 cross-bill. 
 
 Offer to pay 
 balance of 
 account ; 
 
 not now 
 necessary. 
 
 How. U S. l.'JO; Gerrii-h V. Towne, 3 Gray, 
 fc6, 87; Murphy v. Clark, 1 Sm. & M. Ch. 
 221; Stein v. Robertson, 30 Aliu 286; 
 Walker r. Ueverenux, 4 Paij^e, 22*j; Fos- 
 ter V. Cook, 1 Hawks, 5UU; Liugan v. 
 Henderson, 1 Bland, 252; i^k'asaiits v. 
 Glasscock, 1 Sni. & M. 17, 24, 20; Kibler 
 t'. Whiteinan, 2 llarr. 4UI; Koulkes v. 
 Davits, L. II. 7 K(). 42. The bill ui:tynot 
 only be fraiiie<i wiiti a double aspect, but 
 m ly be so amended as to' be of that char- 
 acter. The alternative case stated must, 
 however, be the louiidation lor precisely 
 the same relief. When tlie [iniyer of a bill 
 is that the Court will set aside a contract 
 on the fjround of Iraud, the piantilf cannot 
 • ameuij Ijy sub.-.ti!utinii a praver, that the 
 Court would either set it aside on the 
 ground of fraud, or, it it was valid, would 
 enforce its s-pecilic performance. Shields 
 V. IJirrow, 17 How. U. S. 130; see l^en- 
 senneau v. Penseuueau, 22 Mis. (1 Jones) 
 27. 
 
 A prayer, a.'tsigniiig several reasons for 
 vacatiii;^ a deed, is con-idered as so many 
 fieparute [irayer'*, and if one reason be valid, 
 it IS error to reject the whole prayer. 
 American K.xcliaiigii H.ink v. Inlues, 7 
 MiJ. 310. In .New York, let,Ml redress 
 and equitable r(d;ef may be demanded 
 in the xauie complaint ; and either, or both, 
 if the circumstances of the case permit, 
 may be alfonled by the Court. New Vork 
 Ice Co. V. X. \V. Ins. Co., 23 N. Y. 357; 
 
 VOL. I. 
 
 but, in order to entitle a party to one or 
 the other, he must ask it specitically in 
 his complaint. (Stevenson v. liuxton, 15 
 Ab. I'r. 355. 
 
 1 VVriglit V. Wilkin, 4 De G. & J. 141; 
 see also Kawlings v. Lambert, 1 J. & 11. 
 458; Marsh v. Keith, 1 Dr. & S. 342; 6 
 Jur. N. S. 1182; Tliomasi'. Hobler, 8Jur. 
 N. S. 125, L. C; Lett r. I'any, 1 H. & .M. 
 517; Onions v. Cohen, 13 \V. li. 426, V. C. 
 W. ; Davies v. Otty, 2 De G., J. & 8. 238. 
 Alternative relief cannot be prayed against 
 one delendaiit in case relief cannot be ob- 
 tained against aiKJther defendant. Clark v. 
 Lord Rivers, L. R. 5 Ecj. iil. 
 
 - 1 IStoiy Jvp Jur. ^ 64 c. ; Bates v. 
 Wheeler, 1 Scam. 54; Cooper o. Brown, 
 2 .M'Lean, 4U5; Dougherty v. Huinpson, 2 
 Blackf. 273. 
 
 3 Fife V. Clayton, 13 Ves. 546 ; 1 C. P: 
 Coop. t. Cott. 351; Green v. Covillauil, 10 
 Cal. 317; McKleroy v. I'ulane, 34 Ala. 78; 
 Story E(\. PI. §3SJ4,note; Bell v. Thompson, 
 34 Ala. 633; Oliver v. I'ahner, 11 Gill iSs 
 J. 426; Hatcher v. Hatcher, 1 McMulian 
 Ch. 311. 
 
 ■• (-'olumbian Government v. Rothschild, 
 1 Sim. 'Ji, 103; Clarke w. Tijiping, 4 Beav. 
 588, 503; Jur. 25; Barker c Walters, 8 
 Beav. 1)2, 06; Jur. 73; Touliiiin i.'. Reid, 
 14 Beav. 400, 505; Ininan v. Wearing, 3 
 De (i. & S. 720, 733; see 1 Smith Ch. Pr. 
 (2d Am. ed.) SB; Wells v. Strange, & Geo. 
 22. 
 
 25
 
 386 
 
 THE BILL. 
 
 Oh. VI. § 
 
 When niort • 
 pasor must 
 oflor to 
 redeem mort- 
 gii^ee. 
 
 In bills to 
 set aside 
 securities, 
 
 plaintifF must 
 oft'er to pay 
 what is due. 
 
 Secus, in 
 bankruptcy. 
 
 Waiver of 
 penalty or 
 forfeiture. 
 
 fnmd, l)ut without oflVring to iiidcinnify tlio (lofcndniit, the Court 
 oi" K.\c'ho<|ui'r (liouglil, that tlie want t)i" an oiVcr in the hill to make 
 satisfaction, was fatal to the bill, and allowed a denmrrer, which 
 had been put in by tlie defendant.^ 
 
 In like manner it has been held, that a mortgagor cannot make 
 a mortiraoee a party to a bill in respect of his mortgage estate, 
 without t)lfering to redeem him.^ 
 
 It is upon the same ground that Courts of Equity, in cases 
 where a contract is rendered void by a statute, require that a bill 
 to set aside such contract should contain an offer on the part of 
 the ])laintitf to pay to the defendant what is justly due to him. 
 Thus, where a bill was filed, praying that an instrument or security 
 given for an usurious consideration (and void under the usury laws 
 then in force) might be delivered up to be cancelled, the only 
 terms ujjou which a Court of Equity would interfere were those of 
 the plaintiti' paying to the defendant what was bond fide due to 
 hini,^ and where the plaintiif did not ofler to do so by his bill, a 
 demurrer was allowed.* It seems that there is no diiference, in 
 this respect, between a cross-bill and an original bill.^ The course 
 of proceeding in bankruptcy, however, diiFers from that in Courts 
 of Equity ; for the rule in bankruptcy is, that a debt made void by 
 statute is void altogether, and cannot be pi'oved : because the 
 creditor has no legal remedy by which he can recover ; and unless 
 the assignees and creditors voluntarily consent to the payment of 
 what is really due, neither the Court of Bankruptcy nor the Lord 
 Chancellor, or Lords Justices, have power to order it ; and appli- 
 cations of this nature have fi'equently been refused.® 
 
 It is a rule in Equity, that no person can be compelled to make 
 a discovery which may expose him to a penalty, or to any thing 
 
 1 Godbolt V. Watts, 2 Anst. 543. 
 
 2 Diilton V. Hayter, 7 Beav. 313,319; 
 Inman v. Wearing, 3 De G. & S. 729; 
 Attorney-Genernl v. Hardy, 1 Sim. N. S. 
 338, 355; 15 Jur. 441; Knebell v. White, 
 2 Y. & 0. Ex. 15, 20. If the bill does not 
 contain an offer to account, and the decree 
 does not direct plaintiff to pay what may 
 be due to defendant, the Court cannot at 
 the further hearing make such an order. 
 Mollis V. liulpett, 13 W. R. 492, V. C. K. 
 
 3 It is against conscience that the bor- 
 rower should have full relief, and at the 
 same time pocket the money, which may 
 have been granted at his own mere solici- 
 tation. He who seeks equitj' at the hands 
 of a Court of Equity, may well be required 
 to do equity. 1 Story Eq. Jur. § 301; 
 Fonb. Eq. B. 1, ch. 1, § 3, note (/(); Jordon 
 V. Trumbo, 6 Gill & J. 103; Fulton Bank 
 V. Beach, 1 I'aige, 420 ; Crawford v. Har- 
 vey, 1 Blackf. 382; M'Daniells i;. Barnum, 
 5 V't. 270; Fanning v. Dunham, 5 John. 
 Ch. 142, 143, 144; Rogers v. Rathbun, 1 
 
 John. Ch. 367; Campbell v. Morrison, 7 
 Paige, 158: Judd v. Seaver, 8 Paige, 548; 
 Cole V. Savage, 1 Clarke, 482. A Court; 
 of Equity will not aid a plea of usury, at 
 Law, by compelling a discovery, unless the 
 debtor, in his bill, tenders the sum actually 
 borrowed. Tupper v. Powell, 1 John. Ch. 
 439; Rogers v. Rathbun, 1 John. Ch. 367. 
 So the Court will not allow an answer to 
 be amended for the purpose of setting up 
 the defence of usury, unless the defendant 
 consents to pay the amount actually due. 
 Fulton Bank v. Beach, 1 Paige, 429; Story 
 Eq. PI. § 630. 
 
 * Mason v. Gardiner, 4 Bro. C. C. 436; 
 Scott V. Nesbit, 2 Bro. C. C. 641, 649; 2 
 Cox, 183; Whitmorei;. Francis, 8 Pri. 616. 
 
 5 Mason v. Gardiner, 4 Bro. C. C. ed. 
 Belt, 438, n. ; Story Eq. PI. § 630. 
 
 6 Ex parte Thompson, 1 Atk. 125; Ex 
 parte Skip, 2 Ves. S. 489; Ex parte Ma- 
 ther, 3 Ves. 373; Ex parte Scrivener, 3 V. 
 & B. 14; Archbold's Bankruptcy, 110.
 
 FORM OF THE BILL. 
 
 387 
 
 in the nature of a forfeiture. As, however, tTie plaintiff is, in 
 many cases, himself the only person who would benefit by the 
 penalty or forfeiture, he may, if he pleases to waive that benefit, 
 have the discovery he seeks.^ The effect of the waiver, in such 
 cases, is to entitle the defendant (in case the plaintiff should 
 proceed upon the discovery which he has elicited by liis bill, to 
 enforce the penalty or forfeiture) to come to a Court of Equity 
 for an injunction : which he could not do without such an express 
 waiver.*^ 
 
 It is usual to insert this waiver in the prayer of the bill, and if 
 it is omitted the bill will be liable to demurrer. Upon this 
 ground, where an information was filed by the Attorney-General, 
 to discover copyhold lands, and what timber had been cut down 
 and waste committed, and the defendant demurred, because, al- 
 though the discovery would have exposed the defendant to a 
 forfeiture of the place wasted and treble damages, the Attorney- 
 General had not waived the forfeitures, the demurrer was allowed.^ 
 And so it has been held, that a demurrer will lie to a bill by re- 
 versioner, for a discovery of an assignment of a lease without license, 
 if it does not expressly waive the forfeiture.* Upon the same 
 principle, if a rector or impropriator, or a vicar, file a bill for tithes, 
 he must waive the penalty of the treble value, to which he is en- 
 titled by the statute of 2 & 3 Edward VI. : otherwise, his bill will 
 be liable to demurrer.^ It seems, however, tliat if the bill pray an 
 account of the single value of the tithes only, such a prayer will 
 amount to an implied waiver of the treble value, and that an in- 
 junction may be granted against suing for the penalty of the treble 
 value, as well upon this implied waiver as upon the most express.® 
 It is to be observed also, that if the executor or administrator of 
 a parson bring a bill lor tithes, he need not offer to accept the 
 single value, as the statute of Edward VI. does not give to such 
 persons a right to the treble value.'' 
 
 And it seems, that if a plaintiff has made a gratuitous offer by 
 his bill, he cannot afterwards withdraw it ; •* but it is in the discre- 
 tion of the Court whether or not to enforce it." 
 
 Where no account, payment, conveyance, or other direct relief 
 is sought against a jjarty to a suit, Avho is not an infant, this portion 
 
 Ch.YL§5. 
 
 Where 
 waiver 
 omitted, bill 
 demurrable. 
 
 1 In Mason v. Lnke, 2 Hro. P. C ed. 
 Tnml. 4!i."i, 41)7, leavf; appears to have been 
 given to amend u bill, by waivinf^ penal- 
 ti''s ami lorleitiires, alter a demurrer upon 
 that gro""'! iiiiowed. See United States 
 of Anvricu v. Mcltae, L. li. 4 Kq. 327, 333, 
 338-340; S. (J. L. K. 3 Cji. Ap. 79; Attor- 
 ney-General 1". Vincent, IJiinb. I!t2. 
 
 ^ I>ord Uxbrid^je v. Staveland, 1 Ves. S. 
 66. 
 
 ' Attorney-General v. Vincent, Bunb. 
 102. 
 
 * Lord Uxbridge v. Staveland, 1 Ves. S. 
 56. 
 
 6 Ld. Red. 195; Anon., 1 Vern. 60. 
 
 Wools V. Walley, 1 Anst. 100. 
 
 "> Anon., 1 Vern. 00; see also Attorney- 
 General V. Vincent, iM sii/}. 
 
 » I'ellv r. W'atlicn, 7 Ilaro, 371 ; 14 .Tur. 
 9, 13; I'oiter r. Waller, 2 De (',. i^ S. 410, 
 420; Kendall v. Marsters, 2 Ue G., F. & J. 
 200. 
 
 >• Knigiit V. Rowyer, 2 De G. & J. 421, 
 447; 4 Jur. N. S. 56U. 
 
 Waiver 
 unnecessary, 
 when bill 
 prays single 
 value of 
 tithes ; 
 
 and in suits 
 by executors 
 of tithe 
 owners. 
 
 Gratuitous 
 otter by bill 
 cannot be 
 withdrawn. 
 
 Where no 
 direct relief 
 sought 
 against a 
 party.
 
 388 
 
 THE BILL. 
 
 Oi. VI. § 5. 
 
 Prayer for 
 provisional 
 onii'rs : 
 
 Injunction 
 not usually 
 granted 
 before decree, 
 unless 
 expressly 
 prayed tor; 
 
 Sectts, after 
 decree. 
 
 Perpetual 
 injunction. 
 
 Prayer for 
 ne exeat 
 regno. 
 
 of {]\o l)ill may also contain a prayer that sucIj party, upon being 
 served with a eopy oft lie bill, may be bouml by all tlie ])rocee(lings 
 in the eaiise.^ 
 
 For the ]nu-pose of i)reserving the property in dispxite pending 
 a suit, or to prevent evasion of justice, the Court either makes a 
 special order on the subject, or issues a jn-ovisional writ: such as, 
 the writ of injunction to restrain the defendant from ])roceeding 
 at Common Law against the plaintiff, or from committing waste, 
 or doing any injurious act ; the writ of ne exeat rer/no, to restrain 
 the defendant from avoiding the plaintiff's demands by quitting 
 the kingdom; or other writ of a similar nature. When a bill 
 seeks to obtain the special order of the Court, or a provisional writ 
 for any of these purposes, a prayer for the order or particular wiit 
 which the case requires should be inserted, and the bill is then 
 commonly named from the writ so prayed : as, an injunction bill, 
 or a bill for a writ of ne exeat regno? 
 
 As a general rule, the Court will not grant an injunction, unless 
 expressly prayed by the bill.^ A prayer for general relief will not 
 be sufficient to authorize it : * for, as against the general words, the 
 defendant might make a different case than he would against a 
 prayer for an injunction.^ It seems, however, that there are ex- 
 ceptions to this rule ; and that, in some cases, the Coui-t will grant 
 an injunction, though not prayed for,® 
 
 It is to be observed, that the rule not to grant an injunction, 
 unless specially prayed, applies only to cases where it is required, 
 provisionally, until the hearing ; but that after decree, the Court 
 will interpose by injunction, although it is not asked for by the 
 bill.^ 
 
 Where an injunction is sought, not as a provisional remedy 
 merely, but as a continued protection to the rights of the plaintiff, 
 the prayer of the bill must be framed accordingly.^ 
 
 The prayer for ne exeat regno resembles mutatis mutandis., that 
 for an injunction.^ But, though it is usual, it is not necessary that 
 the bill should pray the writ, as the intention to go abroad may 
 
 1 Order X. 11; see jfjosi, Chap. VII. § 1, 
 Sei'vice of a copy of the bill on formal de- 
 
 fendunis. 
 
 2 Ld. Red. 46. 
 
 3 Savorv v. Dver, Amb. 70; Storv Eq. 
 PI. § 41; Kden hij. (2d Am. ed.) 73, 74; 
 2 Story Eq. .Jiir §§ S-G2, 8G3; Walker v. 
 Devereaux, 4 I'aij^e, 248; Lewiston Falls 
 Maiiuf Co- r. Franklin Co., 54 -Maine, 402. 
 
 * Wriglit V. Atkyns, 1 y.& Ij. 313, 314. 
 
 6 Savory v. Dyer, ubi sup. In cases 
 where the writ of injunction is sought, it 
 shouM not only be included in the prayer 
 for relief, but also in the priiyer for process. 
 Story Kq. I'l. § 44; Kden liij. (2d Am. ed.) 
 73, 74 ; Lewiston FsilLs Manuf. Co. v. Fmnk- 
 lin Co., 54 Maine, 402, 404 ; Wood v. Ura- 
 
 deil, 3 Sim. 273; Union Bank v. Kerr, 2 
 Md. Ch. Decis. 460. 
 
 8 Blomfield v. Eyre, 8 Beav. 250, 259; 
 9 Jur. 717. 
 
 7 Wright V. Atkj'ns, ubi sup. ; Paxton 
 V. Douglas, 8 Ves. 520 ; Jackson v. Leaf, 
 1 J. & W. 229, 232; Clarke v. Earl of Or- 
 mond, .Jac. 122; Ke3'nellu. Spr^-e, I De G., 
 M. & (i. 600, 690; and 8Q& post, Chap. 
 XXXVI. Injanclions. 
 
 ^ L(i. Bed. 47; and see post, Chap. 
 XXXVI. § 3; Walker v. Devereaux, 4 
 Paige, 229. 
 
 y Upon the same bill, a.ne exeat, as well 
 as an injunction, may be granted. Bryson 
 V. Betty, 1 Bland, 182.
 
 FORM OF THE BILL. 
 
 389 
 
 arise in the progress of the cause ; and if, when the bill is filed, the Ch. VL § 5. 
 defendant does not intend to leave the kingdom, it would be high- "-^ y •' 
 ly improper to pray the writ : as a groundless suggestion that the 
 defendant means to abscond would press too harshly, and would 
 also operate to create tlie very mischief which the Court, in per- 
 mitting the motion for it to be made without notice, means to 
 prevent.^ In the case, however, of Sharp v. Taylor;^ where the 
 plain tifi" knew, at the time of the filing of the bill, that the defend- 
 ant was going abroad, Sir Lancelot Shadwell V. C. refused to 
 grant a writ of ne exeat regno^ in consequence of its not having 
 been prayed for by the bill.^ 
 
 In addition to the pai-ticulars already mentioned as necessary Bill must be 
 parts of a bill, the bill should also, in the heading, be expressed to S^'J^ t,,^ 
 be between the intended plaintiffs and defendants ; the names of parties. 
 the defendants should be rei)eated at the end, as defendants to the J^^^^"^'^.''"^' 
 bill;* and a note should be appended of the name and address of name and 
 the plaintiff's solicitor and agent, or of the plaintiff's name and ^^1;^^^^.?^^ 
 place of abode, where he sues in person.^ The branch of the Court solicitor, 
 to Avhich the cause is to be attached, must also be marked on the V^ [^[^.gonf 
 bill, previous to its being filed.*' branch of 
 
 Court. 
 
 8. Prayer for Process? 
 
 The next part of the bill consists of the prayer for process ; ^ it 
 has -before been stated that where no account, payment, convey- 
 ance, or other direct relief is sought against a party to a suit, who 
 is not an infant, the plaintiff is now enabled, if he thinks fit, to 
 pray by his bill that such a party, upon being served with a copy 
 of the bill, maybe bound by all the proceedings in the cause ;^ 
 but with res])ect to all other defendants the process prayed, in or- 
 dinary cases, is a writ oi subpoena ; and tliis j)art of the prayer is 
 
 1 Collin-on v. , 18 Vcs. .^53; Moore Ord. HI. 2, 3, 5. and post, p. 397. For 
 
 V. Hudson. 6 Mad. 21('; liarned v. Laing, forms, .see Vol. III. 
 
 13 Sim. 255; -Jur. 1050; 7 Jur. .383; 6 Onl. VI. 1; see ;ws<, p. 397 ; and form 
 
 Ilowkins V. Howkins, 1 Dr. & S. 75; 6 of bill, Vol. ill. 
 
 Jur. N. S. 490. "^ T'le bill used to conclude in England 
 
 2 11 Siin. 50; and see remarks on that with an elabonite prayer for proce>s; but 
 ca.sc in IJariied r. Laing, %ibi gup. all that is now rwiuired in the present 
 
 » Lij. It.Ml. 41;, 47; Storv Ivj. PI. § 43, Kiigli.sli pruftice is, that the names of tlie 
 
 fln'l notes; see liarl.'V w. Nicholson, 1 Dr. defendants should be set forth, and a note 
 
 & War. tit); 2 Dr. & War. 80; 1 Con. & L. api.endcMl with the names of the solicitors 
 
 207, for the principles upon which the for the pl.iintiff. In New Ilampslm-e, the 
 
 Court acts in grantiuK writs of ne exent praver for process, unless some special pro- 
 
 rer/m>; and see jMt, Chap. XXXVIII., cesi or onler shall be ie(inired. mav be 
 
 W'ritofiiefxi'iU. omitted. Rule of Cliau'eiv, 3, 3H N. \l. 
 
 * The woiils, "out of the jurisdiction," 605. The want of a prayer for process 
 
 or "to be, bounil 11(1011 service of a eopv of renters the bill defective in New .lersey. 
 
 the bill," should be luMed alter the iinme Wriglit v. Wr frJit. 4 IlaM. < Mi. ( N. • ) 
 
 of a defendant who is al>roai|, or who is 153; .see Segee v. Thomas, 3 lllatclil. O. 
 
 nieiclv a foriniil p.irty. C. 11. 
 1 Ord. IX. 2, and Sched. A.; bee also 8 See Helknnp v. Stone, 1 Allen, 07Z. 
 
 Order, 23d August, lb41.
 
 390 THE RILL. 
 
 Oil. VI. § 5. ooinmonly as follows : "May it ])lcasc your Lordship, the premises 
 (.'onsidiMvd, to orant under yom* orator his JMajesty's most gracious 
 
 writ [or Avrits] of sub/Kvna, to be directed to the said , and 
 
 to the rest of the confederates, when discovered, thereby com- 
 manding them, and every of them, at a certain day, and under a 
 ]iain therein to be limited, personally ^ to be and appear before your 
 lordship in this honorable Ct)urt ; and then and there, full, true, 
 direct, and perfect answer make to all and singular the premises ; 
 and further to stand to, perform, and abide such further order, 
 direction, and decree therein, as to your Lordship shall seem meet. 
 And your orator shall ever pray," &c.^ 
 
 It is to be observed, that the above words are not usually in- 
 serted in the draft by the draftsman who prepares the bill, although 
 they must be added when the bill is engrossed. The draitsman, 
 however, generally writes a direction, in the margin of the draft, 
 for the insertion of this prayer, specifying the names of the per- 
 sons against Avhom process is to be prayed ; and care must be 
 taken in so doing to insert the names of all the persons who are 
 intended to be made defendants ; because it has been held that the 
 mere naming of a party in a bill, without praying process against 
 him as a defendant, is not to be considered as making him a party,* 
 even where he is out of the- j urisdiction of the Court.* Some 
 doubt appears to have been thrown upon the last proposition by 
 the decision of Sir J. Leach V. C. in Haddoch v. Thoml'mson^ in 
 which his Honor expressed an opinion that where a party inter- 
 ested in the subject of a suit is charged by the bill to be out of the 
 jurisdiction of the Court, but is not named in the prayer for pro- 
 cess, the omission will not render the record defective ; although 
 it is usual and convenient that process should be prayed agaizast 
 them, in order that if they come within the jurisdiction,- process 
 may issue against them without amending the bill. In a subse- 
 quent case, however, before Sir C, Pepys M. R. the point again 
 came under the notice of the Court, when his Honor, — after re- 
 ferring to a manuscript report of another case before Sir J. Leach,® 
 in which that learned Judge had said, that it was not enough to 
 state that persons who, in respect of interest, were necessary par- 
 
 1 In the case of a corporation a proper former practice in New York, parties might 
 form would omit the word " personull}','" be treated as defendants, by a clear state- 
 and nfter the word " ay)pear,'' in this line, ment in the bill to that etiect, without 
 insert '" according to law." 1 Hoflf. Ch. 53. pnij'ing the subimna. The reason given 
 
 2 Hind. 17. wa.s, that in tliat State the subpwna was 
 3' Story Kq. PI. § 44. A person, whom issued of course, and that a formal prayer 
 
 the hill prays to be made a party, does not wa.s unnecessary to entitle the plaintiff 
 
 thereby become a pirty; to make him such, to process. Brasher v. Van Cortlandt, 2 
 
 Erocess must be issued and served upon John. Ch. 245; Elmendorf v. Delancy, 1 
 
 im. Bond v. Hendricks, 1 A. K. Marsh. Hopk. 555. 
 
 594; see Huston v. M'Clartv, .3 Litt. 274; * Windsors. Windsor, 2 Dick. 707. 
 
 Verplanck v. Merc. In.s. Co.", 2 Paige, 438; « 2 S. & S. 219. 
 
 Lyie V. Bradford, 7 Monroe, 113. By the ^ Manos v. De Tastet.
 
 FOEM OF THE BILL. 391 
 
 ties, were out of the jurisdiction, but that the bill must go on to Cn. VL § 6. 
 pray process against them, — said that he was of opinion that the 
 principle of the manuscript case ought to be followed, and there- 
 fore allowed a demurrer which had been taken ore tenus for want 
 of a necessary party, who had been charged to be out of the juris- 
 diction, but against whom no process had been prayed when he 
 should come within it.^ 
 
 If the defendant be a peer of the realm, or entitled to the privi- 
 lege of peerage, he has a riglit before a suh})cena is issued against 
 him, to be informed, by letter from the Lord Chancellor, of the 
 bill having been filed ; this letter is called a letter missive, and 
 must be accompanied by a copy of the bill. In consequence of 
 this privilege of peerage, the practice is, that in all cases, where 
 peers are defendants, the usual prayer for process is preceded by a 
 prayer for a letter missive, in the following words : " May it please 
 your Lordship to grant unto your orator your Lordship's letter 
 
 missive, to be directed to the said Earl of , directing him to 
 
 appear and answer your orator's said bill, or in default thereot^ his 
 Majesty's most gracious writ of subpoena^'' &g? 
 
 When the Attorney-General is made a defendant to a suit, as he 
 is always supposed to be in Coui-t, the bill does not pray any sub- 
 pcena against him, but merely that, upon being attended with a 
 copy of the bill, he may appear and put in an answer thereto.^ 
 
 1 Tavlor v. Fisher, Roll's Sittings after be infants under age, or otherwiise under 
 Hil. Term, 1835, MS.; see Story Eq. IM. guardianship, shall state the fact, so that 
 § 44 and note; Mitford Eq. PI. by .Jeremy, the Court may take order thereon as jus- 
 16.5; Milligan v. Milledge, 3 Cranch, 226; tice may require, upon the return of the 
 Lavihart r. Keilly, 3 Desaus. 590. The 22d process. If an injunction, or writ of ne 
 Equity Rule of tlie Supreme Court of tlie exaut regno, or any other special order 
 United States, January Term, l.'>42, lias pending tlie suit is asl<ed for in the prayer 
 provided, that " If any'persons, other th;in for relief, tiiat shall be sutUcient, without 
 those named as defendants in the bill, shall repeating the same in the prayer for pro- 
 appear to be necessary or proper parties cess." Provision is made for service of 
 thereto, the hill shall aver the reason why notice on defendants residing out of the 
 they are not made parties, by showing tliein Commonwealth, in the Kules for the Keg. 
 to be without the jurisdiction of the Court, of Prac. in Chan., in Massachusetts, 
 or tiiat thej- cannot be joined without oust- Rule 5. 
 
 ing the jurisdiction of the Court as to the 2 Hind. 18. In the case of corporations 
 other parties. And as to persons wlio are aggregate, the process of suh/xinit is the 
 without the jurisdiction, and may properly same as in ordinary cases; liut the bill 
 be made parties, the Ijiil may pray, tiiiit sometimes prays, that^ in case of their de- 
 process mav issue to make them parties to fault to appear and answer the bill, the 
 the liill, if they should come witliiii the ju- writ of distringas may issue to compel 
 risiictinn." llie 2:id Hule is as follows: them to do so. Coop. Ecj. PI. Iti, 17; 
 " The prayer for process of sf/Zy^asHrj in the Harvey r. East Ind. Co., 2 Vern. 31)6; 1 
 bill shall contain the names of all the de- Harris Ch. I'r. 149; Story Eq PI § 44. 
 feii'lants named in the introductory [lart of ^ Ld. IJ^J. 40. 
 the bill, and if any of them arc known to
 
 THE BILL. 
 
 Section VL — In what Cases the JRill must be accompanied by an 
 
 Affidavit. 
 
 In suits to 
 ohtrtiii benefit 
 of lost 
 iustrimionts ; 
 
 Thoro arc cortaiu cases in which it is necessary tliat tlie bill 
 shmiM be accompanied by an affidavit, to be filed with it, and in 
 which the omission of such accompaniment will render the bill 
 liable to demurrer.^ Thns, when a bill is filed to obtain the benefit 
 of an instrument upon which an action at Law would lie, upon the 
 ground that it is lost, and that the plaintiff in Equity cannot there- 
 fore have any relief at LaAV, the Court requires that the lull shouM 
 be accom])anied by an affidavit of the loss of the instrument.'-^ If, 
 however, the objection is not taken by demurrer, but the cause 
 proceeds to a hearing, and the answer of tho defendant admits the 
 loss or destruction of the instrument, then the Coiart has jurisdic- 
 tion, and the objection for want of the affidavit will be overruled.' 
 So, in suits for the discovery of deeds and writings, and for relief 
 founded upon such instruments, if the relief prayed be such as 
 might be obtained at Law, on the production of deeds or writings, 
 the plaintiff must annex to his bill an affidavit that they are not in 
 his custody or power, and that he knows not where they are, xuiless 
 they are in the hands of the defendant.* 
 
 But a bill for a discovery merely, or which only prays the delivery 
 of deeds or writings, or equitable relief grounded upon them, does 
 
 1 Where no preliminary order is re- 
 quired, it is not generally necessary that 
 bills should be sworn fo, although the an- 
 swer under o;ith is not waived. Atwater 
 V. Kitiinan, Harring. Ch. 243; .lerome v. 
 Jerome, 5 Conn. 352. A bill in Equity to 
 redeem mortgaged premises need not be 
 verified by affidavit. Hilton v. Lothrop, 
 46 Maine, "297; Dinsmore v. Grossman, 53 
 Maine, 441. A bill nt-ed not be sworn to 
 in Massachusetts. Burns v. Lyiide, 6 
 Allen, 306. In North Oarolinn, " an affi- 
 davit of the truth of the matters contained 
 in his bill " is necessary to give jurisdic- 
 tion to the Court of Equity, under the 
 Statute (Rev. Code, c. 7). and the want of 
 such affidavit is a good ground for a 
 general demurrer Barringerr. Andrews, 
 5 .tones Hq. (N C.) 348. There is no rule 
 in tlie United States Circuit Court for 
 Massachusetts, requiring an oath to be filed 
 with the liill. Woodworth v. Edwards, 3 
 Wood. & M. 12''. 
 
 2 Ld. Red. 124; Walmslev v. Child, 1 
 Ves. S. 341; Wright v. Lonf-Maidstone, 1 
 K. & J. 701; 1 .Jur. N. S. 1013; Whit- 
 church V. Gliding, 2 v. Wms 541; Pen- 
 ninjrton v. (ioveriMT, 1 Blackf. 78; Talia- 
 ferro V. Foote, 3 Leigh, 5b ; Peart v. Taylor, 
 
 2 Bibb, 556; Story Eq.Pl. § 288; Ld. Red. 
 123, 224; Livingston v. Livingston, 4 John. 
 Ch. 294; Le Roy v. Veeder, 1 John. Ch. 
 417; Mundiivr. Shatzell, Lift. Sel. Ca.373; 
 Lynch v. Willard, 6 John. Ch. 342, 346. For 
 the reason of the rule, see post, 394, 395, note. 
 In Thornton v. Stewurt, 7 Leigh, 128, it was 
 held that, although regularly an affidavit 
 of the loss of the bond, &c., ought to be 
 filed with a bill for relief upon a lost bond, 
 yet if such affidavit is not so filed, but is 
 filed afterwards in the progress of the 
 cause, this is sufficient. See Cabell v. 
 Megginson, 6Muiif 202; Jerome v. Jerome, 
 6 Conn 352; Hennett v. Waller, 23 111. 
 97. For the form of an affidavit in such 
 cases, see 1 Grant ('h. I'r. (2d ed.) 13; and 
 .see post. Chap. XXXIV., § 2, Bills of Dis- 
 covery, Vol. III. 
 
 8 Crosse v Bedingfield, 12 Sim. 35; 6 
 .lur. 836; Bennett v. Wnller, 23 III. 
 
 4 M'Elweer. Sutton, 1 HillCli 33; Story 
 Eq. PI. §§ 288, 313; Findley v. Hinde, 1 
 Peters, 244 ; Livingston v. Livingston, 4 
 John. Ch. 294; Campbell v. Slielilon, 13 
 I'ick. 8, 18 to 20, per Sliaw C J. For 
 form of affi lavit, see Vol III , and for form 
 of demurrer, for want of it, see 2 Van 
 Iley. 76.
 
 WHEN BELL MUST BE ACCOMPANIED BY AFFIDAVIT. 
 
 393 
 
 not require such an affidavit.^ It was decided, in King v. King^ 
 that an affidavit is also unnecessary in the case of a bill for discov- 
 ery of an instrument which has been fraudulently cancelled by the 
 defendant, and to have another deed executed : for, in such a case, 
 if the plaintiff had the cancelled instrument in his hands he could 
 make no use of it at Law, and, indeed, the relief prayed is such as 
 a Court of Equity only can give ; but, in RootJiam v. Dcmson^ the 
 authority of King v. King appears to have been questioned, and a 
 different decision come to. In that case, the bill was filed for the 
 discovery of the contents of a bond which had been given to the 
 plaintiffs, as parish officers, as an indemnification for the expense 
 of a bastard child, and which was alleged in the bill to have been 
 defaced and cancelled by tearing off the signature of the obligor, 
 so that the bond was no longer in force ; the bill also prayed an 
 account and ])ayment of what was due on the bond, as well as the 
 execution of a new one for the future indemnification of the trus- 
 tees. To this bill the defendant demurred : " for that the plaintiffs 
 ought, according to the rxiles of the Court, to have made an affidavit 
 of the bond being defaced and avoided, as stated in the bill ; " and 
 the demurrer was allowed. It is to be observed, that the L. C. B. 
 Macdonald, in his judgment, appears to have proceeded upon the 
 gi'ound that the plaintiffs had not confined themselves to seeking a 
 discovery and re-execution of the bond, but had gone on to pray 
 for payment of the sum already due : though, certainly, that dis- 
 tinction does not aj)pear to have been recognized by the learned 
 Baron Thompson, who delivered his opinion upon the occasion. 
 It is, however, submitted that the reason given for the decision in 
 King V. King is quite satisfactory : for, as the ground fof the in- 
 terference of a Court of Equity in such a case is not the loss, but 
 the cancellation of the instrument, so as to render it impossible to 
 use it at Law, no relief will be granted by the Court until it is sat- 
 isfied that the cancellation has taken place, by the production of 
 the cancelled instrument ; whereas, in the case of the loss of a doc- 
 ument, the Court has, in general, no means of satisfying itself that 
 the document has been lost but the assertion of the party himself: 
 which it consequently requires should be made upon oath. 
 
 Another case, in which it Avas required that the bill should be 
 accompanied l)y an affidavit, was, where a hill was filed under the 
 Stat. Wi*, Geo. III. c. loO, which \,'as passed ibr the ]mrj)ose of limit- 
 ing tlie responsibility of ship-owners in certain cases. This Act is 
 
 Ch. VI. §6. 
 
 I 1,(1. Red. 54; seel Ves. S. 841, 344; 
 Wliitfliiirih t'. Coldinir. 2 P. Wiiih 541; 
 Aiiiin., 3 Atk. 17; Iiormcr r. Forli'scno, 
 ih. 13-2; M'Klwcc v. Sutton, 1 Hill Cli. 33; 
 Story Kf|. I'l. § 2>^S. Wlitro tin; siibjcct- 
 matler of fli<! writing; is jiropcrly cof^niz- 
 able in Equity, uii ullidavit of tliu loss is 
 
 not necessarv. Peart v. Tavlor, 2 Bibb, 
 666; Ld. Red. 124; Liiigbt v. Morf^an, 1 
 Ciiines Ca. Kr. 345; S. C. 1 John. Ch. 9; 
 Campbell v. Sheldon, 13 Pitk. 18 to 20. 
 
 2 Mos. 192; iind see Ld. Red. 124. 
 
 3 3 Abst. 859. 
 
 No lonp:cr 
 rc(|uircd in 
 suits to limit 
 \\w, rosponsi- 
 bility of 
 ship-owners.
 
 394 
 
 THE . BILL. 
 
 On. vr. $0. 
 
 NocJ not he 
 sworn siniiil- 
 taneously 
 ■\vitli liliug 
 bill. 
 
 Affidavit 
 required in 
 suits to 
 perpetuate 
 testimony ; 
 
 and inter- 
 pleader suits. 
 
 ox|in>ssly rcpc-ilcd by llu' 17 & 18 Vie. c. 120, § 4 ; and as the Acts 
 now in lorce ^ tor the above purpose contain no provision similar 
 to tliMt contained in tbo Act of Geo. Til., with reference to an 
 artidavit accoin|)anying tlie bill, it is to be assumed that such an 
 affidavit is no longer necessary. 
 
 Even in cases in which the legislature has expressly directed 
 that the affidavit should be " annexed to the bill," it is not neces- 
 sary that the affidavit should be sworn at the same time as the bill 
 is tiled : but it is the usual practice, in all cases in which an affi- 
 davit is necessary, to have it sworn a day or two before the bill is 
 flled.2 
 
 The other cases, in which bills are required to be accompanied 
 by an affidavit, may be mentioned here, although they do not come 
 within the description of bills which are now the subject of discus- 
 sion. These are : bills for the purpose of perpetuating the testi- 
 mony of witnesses, where, from circumstances, such as the age or 
 infirmity of witnesses, or their intention of leaving the country, it 
 is probable the ])laintiff would lose the benefit of their testimony: 
 in which case, an affidavit of the circumstances, by means of which 
 the testimony may probably be lost, must be annexed to the bill : ^ 
 and bills of interpleader, which also, to avoid a demurrer, must be 
 accompanied by an affidavit by the plaintiff that there is no collu- 
 sion between him and any of the parties.'* 
 
 1 "The Merchant Shipping Act, 1854" 
 (17 & 18 Vice. 104), Part IX. §§504, 514; 
 " The Merchant Shipping Amendment 
 Act, 1862" (25 & 26 Vic. c. 63), § 64. 
 
 2 Wrtlker V. Fletcher, 1 Phil. 115; 12 
 Sim. 420, 422; 6 Jur. 4; but see Francome 
 «. Francome, 13 W. R. 355, L. C; ll.Iur. N. 
 S. 123. The affidavit is usually, but need 
 not be, attached to the bill. Jones v. Shep- 
 herd, 29 Beav. 293; 7 Jur. N. S. 250; 
 Affirmed by L. C. 7 Jur. N. S. 228 ; sub 
 nom. Shepherd v. Jones, 3 De G., F. & J. 
 56. It may be made nn exhibit to the bill. 
 See forms of affidavit in Vol. III. 
 
 3 Ld. Red. 150; Phillips v. Carew, 1 P. 
 Wms. 116; Laight ?;. Morgan, 1 Caines's 
 Cas. in Error, 344; S. C. IJohn. Oh. 429; 
 Story Eq. PI. §§ 304, 309. The reason 
 given for requiring the affidavi't is, that 
 the proceeding has a tendency to change 
 the jurisdiction of the subject-matter from 
 a Court of Law to a Court of Equity. Ld. 
 Ked. 150, 151; Story Eq. PI. 309. "This 
 reason," says Mr. Justice Story, " is per- 
 haps not quite satisfactory." — "A better 
 ground would seem to be, that the bill has 
 a tendency to create delays, and may be 
 used as an instrument unduly to retard 
 the trial; and. therefore, an affidavit, tliat 
 the bill is well founded, is required. The 
 affiilavit should be positive as to the ma- 
 terial facts." Storv Eq. PI. § 309; and see 
 post. Chap. XXXIV. § 4, Bills to Perpetu- 
 ate Testinumy. For form of demurrer for 
 ■want of such affidavit, 2 Van Iley. 78. 
 
 4 Ld. Red. 49; Bignold v. Audland, 11 
 Sim. 23; Hamilton v. IMarks, 5 De G. & 
 S. 638. Ill Larabrie v. Brown, 1 De G. & 
 J. 204; 23 Beav. 607, leave was given to 
 file an interpleader bill quantum valeat, on 
 affidavit of the plaintiffs' solicitor, the 
 plaintiffs being abroad, and time pressing; 
 but the affidavit of the filaintifl's was after- 
 wards, by leave of the Court, filed and an- 
 nexed to the bill, nunc pro tunc. Braith- 
 waite's Pr. 27. Where tliere were several 
 plaintiffs residing in distant places, leave 
 was given, on a like affidavit, and an in- 
 junction granted for a limited time, on an 
 undertaking; to file the usual affidavit. 
 Nelson v. Barter, 10 Jur. N. S. 611; 12 
 W. R. 857, V. C. W.; 2 H. & iM. 334; 
 and see post, Chap. XXXIV. § 3, Bills of 
 Interpleader ; see Wood v. Lyme, 4 De G. 
 & Sm. 16; Edrington v. AUsbrooks, 21 
 Texas, 186; Eden Inj. (2d Am. ed.) 401, 
 402; Shaw v. Coster, 8 Paige, 339; Tobin 
 V. Wilson, 3 J. J. Marsh. 67; Manks v. 
 Holroyd, 1 Cowen, 691; Ld. Red. 143. 
 Such an affidavit is not necessary in Con- 
 necticut. Nash V. Smith, 6 Conn. 421 ; 
 see Jerome v. Jerome, 5 Conn. 352. For 
 form of affidavit, see Vol. III. For form 
 of demurrer for want of such an affidavit. 
 Willis, 442; Equity Drafts (2d Am. ed.), 
 77. 
 
 A bill praying for an injunction, gener- 
 ally requires a special affidavit to support 
 it. Eden Inj. (2d Am. ed.) 380, 381; 1 
 Barb. Oh. Pr. 43, 44, 617; 1 Hoff. Ch. Pr.
 
 WHEN BILL MUST BE ACCOMPANIED BT AFFIDAVIT. 
 
 395 
 
 It is to be observed that, in cases of this nature, advantage can Ch. VI. § 6. 
 only be taken of the omission of an affidavit, by demurrer ; and "" f ^ 
 where a phiintiff, instead of demurring on this ground in the ^^1]'^^'!?"^°^ 
 first instance, put in a plea to the whole bill, which was overruled, only be taken 
 he was not allowed to demur, ore tenus, on the ground that the ^y^^^emMier. 
 necessary affidavit was not annexed.^ 
 
 78; Hatch v. Euetaphieve, 1 Clarke (N. 
 Y.), 63; Hammersley v. WyckoflF. 8 Paige, 
 72; Campbell i'. Morrison, 7 Paige, 157; 
 Holdrege r. Gwynne, 3 C. E. Green (N. J.), 
 26, 32 ; Perkins v. Collins, 2 Green Ch. 482 ; 
 Bank of Orleans r. Skinner, 9 Paige, 305; 
 Bogert V. Haight, 9 Paige, 29"; see Wood- 
 worth V. Edwards, 3 Wood. & M. 120. It 
 may be verified bv an attornev- Edrington 
 V. AlLsbrooks, 21X6X3*, 186;" Youngblood 
 V. Schamp, 2 McCarter (N. J.), 42. 
 
 In Maine, "bills of discovery, and those 
 praving for an injunction, must be verified 
 by bath." Chan. Uule 1, 37 Maine, 581. 
 ■fhis rule relates to the pure and simple bill 
 of discovery. Dinsniore t'. Grossman, 53 
 Maine, 441; Hilton r. Lothrop, 46 Maine, 
 297. 
 
 Where the facts, on which the claim 
 for nn injunction is made, are not within 
 the knowledge of the plaintiff', he should 
 state the tacts in his bill as upon his infor- 
 mation and belief, and annex the affidavit 
 of the person frum whom he obtained the 
 information, or some other person who can 
 Bwear positively to the truth of the material 
 allegations in the bill. Campbell v. Mor- 
 rison, 7 Paige, 157; Bank of Orleans v. 
 Skinner, 9 Paige, 305; 1 Hoff. Ch. Pr. 425; 
 Youngblood v. Schamp, 2 McCarter (N. 
 J.), 42, 43. But in bills charging fraud, 
 and praving a discovery, or in any case, 
 where, in the nature of things, positive 
 proof cannot be expected, the additional 
 verification may be dispensed with, and 
 the injunction may issue on the affidavit 
 of the plaintiff' founded on belief alone. 
 Youngblood V. Schamp, 2 Mc('arter (N. 
 J.), 42; Attorney-General v. liaiik of Co- 
 lumbia, 1 Paige, 511; Campbell v. Mor- 
 rison, 7 Paige, 157. In New .Jersey, the 
 affidavits of the j)laintirt', made after filing 
 tlie bill, are not competent to be read 
 upon a motion for an injunction and 
 the appointment of receivers. Such af- 
 fidavits should be subjoined to the bill, 
 and filed with it. Hrandred v. Paterson 
 Machine Shop, 3 Green Ch. 294, 309. In 
 Delaware, a creditor's bill must contain the 
 averments re(|iiired by the 109th Rule, and 
 those averments must be sworn to in the 
 jurttt. Clark i'. Davis, Ilarring. Ch. 227. 
 
 When a writ of ne exeat retjno is asked 
 for, nil affidavit is necessary as a founda- 
 tion for obt lining it. 1 Harh. Ch. Pr. 049, 
 660; Rice v. Male, 5 Cush. 23K ; 1 Hoff'. 
 Ch. Pr. 90; Porter i'. Spencer, 2Jolin.Ch. 
 109; Sevmour r. Ha/.ird, 1 John. Ch. 1; 
 Thorner. Ilalsev, 7 .John. VA\. 191; (ier- 
 noer. Boccalinc, 2 Wash. (;. C. 130; Gil- 
 bert t'. Colt, 1 Ilopk. 500; Mattocks v, 
 Tremaine, 3 .John. Ch. 75. 
 
 When a corporation aggregate is plaintiff", 
 the bill, from the necessity of the case, must 
 be verified by some officer or agent of the 
 corporation, and the bill should be signed 
 bv the officer making the oath. Bank of 
 Orleans v. Skinner, 9 Paige, 305; 1 Barb. 
 Ch. Pr. 44; 1 Hotf. Ch. Pr. 78, 79, 96; 
 Youngblood v. Schamp, 2 McCarter (N. 
 J.), 42, 43. When a bill is to be verified 
 by the oath of an aeent or attorney of the 
 plaintiff', it should be drawn in the same 
 manner as a bill which is to be sworn to 
 bv the plaintiff' himself; stating those 
 matters which are within the personal 
 knowledge of such agent or attorney posi- 
 tively; and those, which he has derived 
 from the information of others, should be 
 stated or charged upon the information 
 and belief of the plaintiff. And the oath 
 of the agent or attorney verifying the bill, 
 should state that the agent has read the 
 bill, or heard it read, and knows the con- 
 tents thereof, and that the same is true of 
 his own knowledge, except as to the mat- 
 ters which are therein stated to be on the 
 information and belief of the plaintiff', and 
 that as to those matters the deponent be- 
 lieves it to be true. Bank of Orleans v. 
 Skinner, 9 Paige, 305 ; Justices v. Cosby, 
 5 Jones Eq. (N. C.) 254. Where it is nec- 
 essary that a bill should be sworn to for 
 the purpose of calling for an answer on 
 oath, it is not necessarv that the allega- 
 tions of the bill, verified by oath merely for 
 that purpose, should be sworn to positively. 
 It is sufficient that the person verifying the 
 bill swears to his belief of the charges con- 
 tained in it. Veeder v. Moritz, 9 Paige, 
 371; Triebert v. Burgess, 11 Md. 452. 
 
 An affidavit to a bill, quia timet, stating 
 that the facts in the bill relating to the 
 plaintiff's own acts are true, and those re- 
 lating to otliers,'he believes to be true, is 
 sulficient. Collins v. Barksdale, 23 Geo. 
 602. And generally, in all bills which are 
 to be verified by "affidavit, as well as in 
 answers and petitions, the several matters 
 stated, charged, averred, admitted, or de- 
 nied, are rccpiired to be stated positively, 
 or upon information and belief only, ac- 
 cording to the fact. ISIarsh i;. Marsh, 1 C. 
 E. Green (N. J.), 390, 397; 2 Barb. Ch. 
 Pr. 680; 3 Ilotr Ch. Pr. (Appx.)371. 
 
 1 Hook V. Dorman, 1 S. & S. 227, 231; 
 Cro.sse V. Hedingtield, 12 Sim. 35; 6 Jur. 
 836; Allen v. State Rank, 1 Dev. & Batt. 
 Kfi. 6; Kindlev v. Hind, 1 Peters, 244; 
 \N oodworth r. Kd wards, 3 Wood & M. 120. 
 I''(ir the form of demurrer in such cases, see 
 Willis, 431. The affidavit niav be amend- 
 ed liy leave of the Court. llamiUon v. 
 Marks, 5 De G. & S. 638.
 
 396 
 
 THE BILL. 
 
 Cn. VI. 5 :. 
 
 If there are several jilainlilVs, all must jdin in tl>e aflitlavit, unless 
 a satisfactory explanation \>v ^ivcn tor their uou-joiuder.^ If a 
 corporation is jilaintill" the allidavit may be made hy the secretary 
 or other responsible otlicer. The aflidavit may be written or printe<l ; 
 and a copy of it, but not necessarily an office copy, should be scaled 
 at the Record and Writ Clerks' office, and annexed to each copy of 
 the bill sealed there for service,^ and served therewith. 
 
 Bill must be 
 printed ; 
 
 but if for 
 injunction, 
 tie exeat, or to 
 make ward of 
 Court, written 
 bill may be 
 filed, on 
 undertaking 
 to file printed 
 bill witiiin 
 fourteendays. 
 
 If printed bill 
 not duly filed, 
 written bill 
 will be taken 
 
 Section VII. — Printing and Filing the Bill. 
 
 After a bill has been drawn or perused, and signed by counsel, it 
 must (except in the cases mentioned below) be printed on cream- 
 wove, machine-drawing, foolscap folio paper, 19 lbs. per mill ream, 
 in pica type, leaded, with an inner margin about three-quarters of 
 an inch wide, and an outer margin about two inches and a half 
 wide.^ Dates and sums, occurring in the bill, are to be expressed 
 by figures.^ 
 
 Where a bill prays a writ of injunction,® or ne exeat regno, or is 
 filed for the purpose of making an infant a ward of Court, but in 
 no other cases,® a wiitten bill may be filed, upon the undertaking 
 of the plaintiff, or his solicitor,' to file a printed copy within four- 
 teen days.^ Written bills must be written upon paper of the same 
 description and size as that on which bills are printed ; ^ and the 
 costs of a written bill will not be allowed, unless specially directed 
 by the Court in disposing of the costs of the cause.^" 
 
 If the printed bill be not duly filed, the Record and Writ Clerk 
 is to take the written copy off the file ; ^^ and the plaintiff or his 
 solicitor, Avho has jicrsonally undertaken to file such printed copy, 
 
 1 Braithwaite's Pr. 27, and Gibbs v. 
 Gibb.s, there cited; and for form of affida- 
 vit in that case, see Vol. III. 
 
 " Braithwaite'.s Pr. 27. No fee is pay- 
 able on liling an affidavit with, or annexed 
 to, a bill. Jbid. 
 
 3 15 & 16 Vic. c. 86, § 1, but see § 9; 
 Ord. IX. 3. It is the business of the 
 plaintiff to get the bill printed, by such 
 
 Erinter as he mn^' select. The proof of the 
 ill should be very carefully examined and 
 corrected (for wliich a fee of 2d. per folio 
 is allowed by the Itetrul. to Ord. 2d Sch.), 
 as no bill will be filed as a printed bill, 
 unles8alterations(if any) are made in type. 
 Braithwaite's Pr. 25. liut a printed bill 
 with written alteriitions may be filed as a 
 written bill, where a wri'ten bill could be 
 filed. Jbid. Some directions as to the miin- 
 ner in which the proof should be corrected 
 will lie found in Vol. III. 
 
 4 Onl IX. .3. 
 
 5 Falkland Islands Co. v. Lafone, 3 W. 
 R. 561, L. JJ. 
 
 . 6 Yatev.Lightliead, 16Jur.964,V.C.T. 
 
 ■^ For form of undertaking, see Vol. IJI. 
 The undertaking may be either indorsed 
 on the copy bill intended to be filed, or 
 be written on a sei)arate paper, to be filed 
 therewith. Braithwaite's Pr. 23. 
 
 8 15 & 16 Vic. c. 86, § 6. The printed 
 copy must, of course, be a copy of the 
 written bill as it stands ;\t the time the 
 printed copy is filed. Braithwaite's Pr. 24. 
 The written and printed copies will remain 
 together on the tile. Ibid. 
 
 » Ord. 6 March, 1860, r. 16. 
 
 10 Ord. XL. 18; see VAtv. Burial Board 
 of Islington, 2 W. R. 5S4, V. 0. W. Costs 
 of written bill allowed on sulisequent ap- 
 plication ; direction having been acci- 
 dentally omitted ; hut without costs of 
 application Hewitt v. White, 12 Jur. N. 
 S. 46; 14 W. K. 220, V. C. K. 
 
 n The practice of the office is to take the 
 written bill off the file <m the fifteenth day, 
 but it is not destroyed. Braithwaite's Pr. 
 24.
 
 PEIXTING AXD FILING THE BILL. 
 
 397 
 
 is to pay to the defendant all his costs of the suit, such costs to be 
 taxed and recoverable without further order; and the certificate of 
 the Record and Writ Clerk of the non-filing of the printed bill is 
 to be sufficient authority to the taxing master to tax the costs.^ 
 
 The Court has a discretionary power, in a proper case, to allow 
 the written bill to be restored and a printed bill to be filed after 
 the expiration of the fourteen days,"^ on an application, by motion, 
 to the Judge to whose Court the cause is attached. If none of the 
 defendants have entered an appearance, the application may, it is 
 conceived, be made ex parte: otherwise, notice of the motion must 
 be served on such of them as have appeared,^ and be supported by 
 an affidavit accounting for the delay ; * and the defendants will be 
 entitled to their costs of appearing on the motion.^ 
 
 If a printed bill be filed, and there is a discrepancy between it 
 and the written bill, the defendant may move, on notice, that both 
 bills be taken oft' the file.^ 
 
 The soUcitor, or the plaintiflf suing in person, must cause to be 
 printed or written upon the bill, his name and place of business, 
 or residence, and also, if his place of business (or residence) shall 
 be more than three miles from the Record and Writ Clerks' Office, 
 another proper place, to be called his address for service (which 
 must not be more than three miles fi-om that office), where writs, 
 notices, orders, summonses, and other written communications may 
 be left for him ; and where any such solicitor shall only be the agent 
 of any other soUcitor, he must add to his own name or firm and place 
 of business the name or firm and place of business of the principal 
 solicitor.'' 
 
 Every original bill ^ must, at the option of the plaintiff, be dis- 
 tinctly marked, at or near the top or upper part thereof, either with 
 the words " Lord Chancellor," or with tlie words " Master of the 
 Rolls ; " and if with the words " Lord Chancellor," then also with 
 the name of one of the Vice Chancellors, at the plaintiff's option ; 
 and the Record and Writ Clerks are not to file any bill which is 
 not marked as above." 
 
 Ch. VI. § 7. 
 
 off the file, 
 with costs to 
 be paid by 
 the plaintitf. 
 
 Leave to file 
 after the 
 fourteen 
 days. 
 
 "Where 
 printed bill 
 differs from 
 WTJtten biU. 
 
 Bill must be 
 undcrwTitten 
 with name 
 and address 
 of plaintiff's 
 solicitor, or 
 of plaintiff 
 actjng in 
 person ; 
 
 and marked 
 for one of the 
 judges; 
 
 1 Ord. IX. 4. When proceedings were 
 stayed, however, the wriiten bill was or- 
 dered to be relaiiied on the tile. Lord 
 Abingdon v. ihoriihill,3 VV. K. 015, V. C. 
 W'. And so whi.Tc, alter an in<«77'/rt order, 
 the suit w as arranged. Garland w. Kiordan, 
 83 Beav. 448. 
 
 2 Kerrand v. Corporation of Bradford, 8 
 De G., M & <i. l»a : 2 .Jur. N. S. 300; af- 
 firming -21 IJcav. 4i2; 'I Jur. X. S. 17.5. 
 
 3 Moss r. .Svers, i» .Jur. N. S. 1219 ; 11 
 W. B. 1047, V. (J. K. 
 
 ■• Kor torm of onlcr, see Seton, 1242, No. 
 1. An indorsement, signed by tiie liegis- 
 frar, on ttie printed bill inlcnded to be 
 filed, is sufficient, without diawing up u 
 formal order, where no direction as to costs 
 
 is given; see IJank of Hindustan t'. Hodg- 
 son, lbG4, li.. No. 275; Bank of Hindustan 
 V. Hobinson, 18(34, H., No. 272. For forms 
 of motion paper, und notice of motion, see 
 Vol. HI. 
 
 6 Muss V. Syers, uhi mp. 
 
 <5 Falkland Island Co. v. Lafone, 3 W. 
 R. 5C1, L. JJ. For Ibrni of notice of mo- 
 tion, see Vol. III. 
 
 " Urd. HI. 2, 6. For forms, see Vol. 
 HI. 
 
 ** The word " bill " includes information. 
 Cons. Ord. I'rcl. Ord. 10 (4). 
 
 'J Ord. VI. 1. The Judge's name may 
 be added in writing to a piinlcii bill, if in- 
 advertently omitted. Brailliwaitc's I'r. 25.
 
 398 
 
 THE BILL. 
 
 Cii. V1.5 
 
 and will 
 thoiK'ororth 
 be att;u'lK'd 
 to his Coiu't, 
 
 until 
 
 removed by 
 special order. 
 
 Transfer of 
 causes: how 
 eflected. 
 
 Bill to bo fifed 
 at Record and 
 Writ Clerk's 
 Office. 
 
 "When the bill has boeii marked with tlio name of a Judge, the 
 cause is attaehed to his CVtiirt;^ and except in the case of or<ler8 
 made in vacation,-' or ot" orders of course,'^ all further proceedings 
 in the cause,'' and rehearings' otherwise than by way of appeal, 
 must be had before him, unless the cause or proceeding is removed 
 from his Court by any si)ecial order of the Lord Chancellor, or the 
 Lords Justices.'' 
 
 An order for the transfer of a cause from one branch of the Court 
 to another will be made, whenever there is a probability of conven- 
 ience from so doing.** The order is made upon motion,'' with notice ; * 
 but the consent of the Judges, from whom and to wiiom the cause 
 is to be transferred, and the leave of the Lord Chancellor, or the 
 Lords Justices, to give notice of the motion, must be first obtained ; 
 the consent and leave are usually given as a matter of course, on 
 the exjMrte a])plication of counsel.^ If leave is given, the motion 
 will be placed in the Court jiaper for the day appointed for the 
 hearing.^" If one of the causes is attached to the liolls Court, the 
 order of transfer must be made by the Master of the Rolls, as well 
 as the Lord Chancellor or the Lords Justices.^^ The order of trans- 
 fer, w'hen passed and entered, should be left with the Record and 
 "VVi'it Clerk, for entry in his cause book.^^ 
 
 The copy of the bill being thus prepared, it is delivered to the 
 Clerk of Records and Writs, who thereupon writes thereon the 
 date on wdiich it is brought into his office, .numbers it, and receives 
 it into his custody. The bill is then said to be filed, and of record ; 
 
 1 Ord. VL 1. 
 
 2 Ord. VL 11; see Man v. Rickets, 9 
 Beav. 4; Holloway v. Phillips, 17 Jur. 875, 
 V. C. W. ; Price v. Gardner, 1 Jur. N. S. 
 975, V. C. W.; Bean v. Griffiths, ib. 1045, 
 V. C. W. 
 
 3 Ord. VL 9; 13 & 14 Vic. e. 35, § 29 ; 
 Magan v. Magau, 16 Jur. 587, V. C. K. 
 
 4 But see Ord. XXXV. 59. 
 
 6 Ord VL 5; see Earl of Shrewsbury v. 
 Trappes, 2 De G.. F. & J. 172; Foxwell v. 
 Bostock, 12 W. R. 723, L. 0. Upon any 
 Vice-Chancellor ceasing to hold office, the 
 cause, unless removed by any special order 
 of the Lord Chancellor or Lords Justices, 
 is thenceforward attaclied to the Court 
 of his successor. Ord. VL 7. As to the 
 power of a .Judge to make an order af- 
 fecting a fund standing to the credit of a 
 cause attached to another branch of the 
 Court, see Wright v. Irving, 10 Sim. 625; 
 Bryson v. Warwick Canal Companj', 18 
 Jur. 893, V. C. W.; Weeding v. Weeding, 
 1 J. & 11. 424. 
 
 6 Curlewis v. Whidbf>rne, 10 W. R. 261, 
 L. JJ.; Sidebottom v. Sidebottom, 14 W. 
 R. 507, L. JJ.; see a?ile, p. 70; and 2>ost 
 Chap. XIX. § 1, iJismissinij Bills. 
 
 ' For forms of notice of motion, .see Vol. 
 III. 
 
 8 Bond V. Barnes, 2 De G., F. & J. 387. 
 
 9 For form of motion paper, see Vol. 
 IIL 
 
 1" As to service of the notice of motion 
 and the hearing, see post, Chap. XXXV. 
 § 2, Motions. The party giving the notice 
 must be provided, at the hearing, with 
 copies of it for the use of the Court. 
 
 ii See 5 Vic. c. 5, § 30 ; Seton, 1268 ; and 
 ante, p. 70, note. For forms of order for 
 the transferof causes, see Setpn, 1268, Nos. 
 1-4. Ttie retransfer ot a cause which has 
 been transferred under a (Jeneral Order is 
 obtained in the manner above explained: 
 as to such retransfer, see Sidebottom v. 
 Sidebottom, 7'\V. K. 104, L. C. ; Tiffin v. 
 Parker, 12 W. R. 698, L. C ; Piatt v. Wal- 
 ter, L. K. 1 Ch. Ap. 471, L. JJ. ; Pietroni 
 V. Transatlantic Company, 14 W. R. 783, 
 L. C. ; VVliittaker v. Fox, ibid.; Betts v. 
 Rimmel, ibid Semble, the order is in the 
 nature of an order nisi, and notice of the 
 application need not be given. Wilson v. 
 Gray, ibid. For form of order for retransfer, 
 see Seton, 1269, No. 5. 1 he order, in such 
 case, can only be made by the Lord Chan- 
 cellor, or Lords Justices, ibid. For form of 
 notice of motion, see Vol. III. 
 
 l'-^ Braithwaite's Pr. 566.
 
 PRINTING AND FILING THE BILL. 
 
 399 
 
 but before this process is completed it is not of any effect in 
 Court.^ 
 
 If the bill has been inadvertently filed without the signature of 
 counsel, an order as of course may be obtained, on motion or peti- 
 tion, gi-ving leave to amend by adding such signature ; ^ but any 
 defendant who has appeared may, before such amendment is made, 
 take advantage of the irregularity by demurrer, or by special motion 
 to take the bill off the file.^ 
 
 The copy of an infoiTnation intended to be filed must bear the 
 signature of the Attorney-General.* To obtain this, a copy of the 
 draft is left with him, together with a certificate of the counsel who 
 settled it, that it is proper for his sanction, and also a certificate of 
 the solicitor for the relator that he is a proper person to be relator, 
 and is able to pay costs ; ^ and if the Attorney-General approves of 
 the draft, he will then, on the copy to be filed being left with him, 
 together with a certificate that it is a true copy of the draft as 
 settled by counsel atiix his signature thereto. The information, 
 so signed, is then filed, in the same manner as a bill. 
 
 The bill being thus filed, the defendant is entitled, after appear- 
 ance, to demand from the ])laintift" any number of printed copies not 
 exceeding ten,^ on payment for the same at the rate of one half- 
 penny per folio * of seventy-two words.^ 
 
 Ch. VI. § 7. 
 
 Name of 
 counsel may 
 be added by 
 order, if 
 accidentally 
 omitted. 
 
 Information 
 must be 
 signed by 
 Attorney- 
 General. 
 
 Defendant 
 entitled to 
 ten copies 
 of bill, on 
 payment. 
 
 1 Ord. I. 35, 45, 48; Ord. VIII. 3. The 
 fee on filing the bill is 20s. higher scale, 
 and 10s. lower scale; and is paid by Chan- 
 cery Fee Fund Stamps, affixed to the bill. 
 Where a written bill has been tiled, no fee 
 is pa3'able on filmg the printed bill. Jones 
 V. Batten, 9 Hare Ap. 57 ; 2 De G., M. 
 & (). 111. As to using several stamps, see 
 Urain v. Brain, 9 Hare Ap. 00, and Ord. 
 XXXIX. 7. The Circuit Courts of the 
 United States, as Courts of Kquity, shall 
 be deemed alwaj-s open for the purpose of 
 tiling bills, answers, and other pleadings, 
 and for issuing and returning mesne and 
 final process, &C. Kquity Kule 1 ; and, by 
 Equity Kule 11, it is provided tliat no pro- 
 cess of iuhprnna shall issue from the clerk's 
 office in any s'uit in Equity, until the bill 
 is liled in the office. 
 
 In Massachusetts, the plainfiff must file 
 his bill before or at the tune of taking out 
 the sulifxena ; and no injunction or other 
 proceeiiing shall he ordered uiiiil the bill 
 is filed, unlc-s for good cause shown. Itule 
 2 of the Rules for Practice in (jliancer}'. 
 In Vermont, no injunction shall be issued 
 in any case until the bill shall have been 
 filtd. (ienl. Sts. c. 2'J, §§ o;J, 00; Howe v. 
 Willard, W Vt. 6.")4. The cause is, in fact, 
 pendiiig in the Court from the time the 
 Chancellor makes the order for issuing the 
 injunction. Howe v. Wiilard, mpra. 
 
 Before entry of a bill in Equit}- in Mas- 
 sachusetts, it the ]ilainlitVis not an iiihal)i- 
 tant of the State, it must be indorsed by 
 some sufficient person, who is such inhab- 
 itant; Geul. Sts. c. 123, § 20; unless the 
 
 failure to have it so indorsed has occurred 
 by accident, mistake, or inadvertence ; in 
 which case the plaintiff, at any stage of 
 the cause, may have leave to furnish an 
 indorser upon suitable terms. St. Mass. 
 1865, c. 45. A suit in E(iuity is commenced, 
 it seems, when the bill is iiled. McLin v. 
 McNamara, 2 Uev. & Bat. Ch. 82 ; Aston 
 V. Galloway, 3 Ired. Ch. 126. 
 
 By Chancery Kule 12, in New Jersey, 
 the clerk of the Court of Chancery is re- 
 quired to keep in his office a docket, in 
 which he shall enter the titles of all suits 
 brought in the Court, and a memorandum 
 of every pa[)er filed in the same, under the 
 title of the suit, with the time of filing and 
 the name of the solicitor of each party, and 
 also an alphabetical inde.x to the san\e ; and 
 the said docket shall be, at all proper hours, 
 accessible to the bur. By the lUth Equity 
 Bule of the United States Courts, upon the 
 return of the subjxxna, as served and ex- 
 ecuted upon any delendant, the clerk shall 
 enter the suit upon his (locket as pending 
 in the Court, and shall state the time of 
 the entr}'. 
 
 2 Hraithwaite's Pr. 23 ; and see Cop- 
 peard v. Mayhew, 22 L. J. Ch. 408, M. 11. 
 
 a Ante, J). 312. 
 
 * Hraithwaite's I'r. 25. 
 
 ^ For forms of these certificates, see Vol. 
 III. 
 
 Ibid. 
 
 t 15 & 16 Vic. c. 86, § 7; Ord. IX. 6. 
 For form of application, see Vol. III. 
 
 M Ord. XL. I'J. 
 
 Kegul. to Ord. IV. 4.
 
 400 
 
 THE BILL. 
 
 Ch. VI. § ■ 
 
 Statuton- 
 imivisioii as 
 to then-jjistiy 
 of a bill or 
 int'ormiition 
 as a Us 
 jiinJcits : 
 
 How regis- 
 tered. 
 
 Re-registry. 
 
 Satisfaction 
 on the 
 
 register: how 
 entered. 
 
 The 2 & 3 Vie. c. 11, § 7, provides, timt no lis j^endens s\\ii\\hiud 
 a inirchaser or mortgagee Avithoiit express notice thereof, unless and 
 until a nuMuoraniluni or minute ^ containing the name, and the usual 
 or last known place of abode, and the title, trade, or profession of the 
 person whose estate is intended to be atiected thereby, and the Court 
 of Equity, and the title of the cause or information, and the day when 
 the bill or information was tiled, shall be leil with the Senior Master 
 of the Court of Conunon I*leas : who is recpiired by the Act forth- 
 with to enter the same in a book, provided for that purpose, in alpha- 
 betical order, by the name of the person whose estate is intended to 
 be affected by such lis pendens? 
 
 The memorandum or minute, containing the particulars required 
 by the Act, must, by the regulations of the office, be on parchment 
 and a separate memorandum is required for every defendant or 
 other person in whose name the registry is proposed to be made.^ 
 
 The jjlaintifT's solicitor, or other joerson leaving this memoran- 
 dum Avith the Senior Master, is required to sign an admission of 
 having left it, and to take a receipt for it.* 
 
 The Act above cited also provides, that such lis pendens shall, 
 after the expiration of five years from the date of the entry thereof, 
 be null and void against lands, tenements, and other hereditaments, 
 as to purchasers, mortgagees, or creditors, unless a Uke memoran- 
 dum or minute as was required in the first instance is again left 
 with the Senior Master within five years before the execution of 
 the conveyance, settlement, mortgage, lease, or other deed or in- 
 strument vesting or transferring the legal or equitable right, title, 
 estate, or interest in or to any purchaser, or mortgagee for valuable 
 consideration, or, as to creditors, within five years before the right 
 of such creditors accrued ; and so toties quoties at the expiration of 
 every succeeding five years ; ^ and the Senior Master is forthwith 
 to fe-enter the same, in like manner as the same was originally 
 entered,^ 
 
 Until recently, no provision was made by statute for the dis- 
 charge of a Us pendens ;'' but by the 23 & 24 Vic. c. 115, § 2, 
 
 i For form of memorandum, so« Vol. 
 HI. 
 
 2 As to the doctrine of lis pendens, inde- 
 pende;itly of the Act, see Sujd. V. & 1'. 
 758, and cases cited ; Shelford's K. P. Acts, 
 694; and since the Act, iljid. ; Bellamy v. 
 Sabine, 1 De G. &.J. 5G0; 3 Jur. N. S. 943; 
 Tyler w. Thomas, 25 Beav. 47; Nortclilfe 
 f." Warburton, 8 Jur. N. S. 353, V. C. S. ; 
 ib. hoi, L. C. 
 
 3 Task's Pr. 12. 
 
 * Ihid. A fee of 2s. %d. is payable for 
 each entry. 2 & 3 Vic. c. 11, § 7. 
 
 5 By the 18 & 19 Vic. c. 15, § 6, it is 
 sufficient if the memorandum is left with 
 the Senior Master, for re-registry of j udg- 
 
 ments, decrees, orders, or rules, within 
 five years before the execution of the con- 
 veyance, &c., or, as to creditors, within 
 five years before their rights accrued; al- 
 tlKHigh more than five years have elapsed 
 since the last previous registration before 
 such memorandum is left; and so iutics quo- 
 ties upon every re-registry. As to whether 
 this provision applies to a lis pendens, see 
 2 & 3 Vic. c. 11, § 7 ; Sugd. V. & P. 543. 
 
 6 2 & 3 Vic. c. 11, §§ 4j 7. For each re- 
 entry the fee is Is. ; see ^§ 4,7. For form 
 of memorandum to be used on a re-registry, 
 see Vol. III. 
 
 7 Pask's Pr. 117.
 
 AMENDING THE BILL. 
 
 401 
 
 it is now enacted, that the Senior Master, upon the filing with him Ch. VI. § 8. 
 of an acknowledgment by the plaintiff in the form or to the effect 
 therein mentioned,^ shall be at liberty to enter a satisfaction or 
 discharge as to any registered pending suit or lis pendens ; and he 
 may issue certificates of the entry of any satisfiiction or discharge.^ 
 The practice which j^revailed prior to this Act, and which may 
 still be resorted to, for the purpose of getting the registry of a 
 lis pendens discharged, is to obtain an order in the cause, as of 
 course, at the Rolls, on a petition j^resented by the jjlaintiff,^ or 
 by a defendant or other person interested, with the consent of the 
 plaintiff's solicitor subscribed to the petition;* or, where the 
 plaintiff will not consent, by a special petition or summons ^ in 
 the cause, which must be served on the plaintiff's solicitor, and be 
 supported by evidence showing that the purposes for which the 
 suit was registered have been satisfied. This order is filed with 
 the Senior Master : and the person leaving it is required to sign an 
 admission of having left it, and to take a receipt for it. The 
 officer will thereupon enter on the register a memorandum of the 
 date of the order, and affix thereto a stamp, bearing the word 
 " satisfied." « 
 
 Section VIII, — Amending the Bill. 
 
 When a plaintiff has preferred his bill, and is advised that the 
 same does not contain such material facts, or make all such per- 
 sons parties, as are necessary to enable the Court to do complete 
 justice, he may alter it, by inserting new matter,' or by adding 
 such persons as shall be deemed necessary parties ; or in case the 
 original bill shall be found to contain matter not relevant, or no 
 longer necessary to the plaintiff's case, or to name as parties per- 
 sons who may be dispensed with, the same may be struck out; the 
 original bill, thus added to or altered, is temied an amended bill.* 
 
 1 For. the form of such acknowledgment, 
 see A'ol. III. 
 
 2 The lee for entering patisfaction is is. 
 Cfl., and for the cfertiticate U. 23 & 24 
 Vic c. 115, § 2. 
 
 8 For form of petition, see Vol III.; and 
 for form of order, see I'ask's I'r. 12.'i. 
 
 * For fr)rm of consent, sec Vol. III. 
 
 6 Fowl.;r (,'. Li|.'s, V. (J. S., in Chambers, 
 16 .June, 185.5, Ke/,'. Lib. A. 1037. 
 
 ' .See 1'a.sk's I'r. 117. 
 
 T If at the tim« of filing the hill the 
 nlaintifl' had no title to the relief |iraycd, 
 lie cannot ni;ikc out a title hy introdniing 
 by iimcndiiient facts which' have subse- 
 quetitly occurred. Attornev-JJeneral v. 
 r.irtreeve of Avon, 11 W. U.'l051, L. .1.1.; 
 see also Godfrey t;. Tucker, 33 Heav. 2MJ; 
 9 Jur. N. S. 1188; cases cited, 33 lieav. 
 
 VOL. I. 
 
 In what cases 
 done: 
 
 By inserting 
 new matter 
 or parties. 
 
 I5y omission 
 of matter or 
 parties. 
 
 26 
 
 285 n.; Beardmore v. Gregory, 2 H. & M. 
 491 ; 11 .Jur. N. S. 363. Cwitra, Talbot v. 
 Lord Hadner, 3 M. & K. 252. 
 
 « Iliode, 21. A written bill mav be thus 
 amended, as well as a printed bill; see 
 iMclJoupalii v. Willifdrd, 14 (ieo. 005; post, 
 411 to 413, note and Rules of the Courts of 
 the United States, Massachusetts, and New 
 Hampshire, tin-re stated. Amendments 
 can()nly be granted where the bill is de- 
 fective in parlies, or in prayer for relief, 
 or in the omission or mistake of a fact or 
 circumstance connected with the substance, 
 but not forming the sulistaiue itself, nor 
 repugnant thereto. The latter jiarl of this 
 princi[)le apjilies to all pleadings in K(|uity, 
 as well as to bills. Verplanck v. Merct. Ins. 
 Co.lKdw. Ch. 46; Lyon i). Tallnnidge, 1 
 John. Ch. 184; Kogers v. liogers, 1 I'uige,
 
 402 
 
 THE BILL. 
 
 rii. VI. § s. 
 
 Ameuiled 
 bill must he 
 addressed to 
 the same 
 Judge. 
 
 Suit, when 
 necessary, 
 only deemed 
 }>endent from 
 time of 
 amendment. 
 
 r>iit, Mlthouoli it is tlu' praotico to call a bill tlius allorcMl an 
 miiu'ihUmI hill, the amcndnu'iit is in tact osteoiHcd but as a con- 
 tinuation of the orininal hill, and as torniing part of it; for both 
 the orin'inal and anu'iiih'il bill constitute but one record:^ so 
 much so, that where an original bill is fully answered, and amend- 
 ments arc afterAvards made, to which the defendant docs not an- 
 swer, the whole record may be taken, ^>;'0 con/esso, generally," and 
 an order to take the bill jyro confesso as to the amendments only 
 will be irregular.'^ An amended bill must therefore, in all cases, 
 be addressed to the same Lord Chancellor, Lord Keeper, or Lords 
 Commissioners, to whom the original bill was addressed, although 
 a change has taken ])lace in the custody of the Greal Seal between 
 the times of iiling the original bill and the amendment.^ But 
 so far as the ijcndency of a suit can affect either the parties to it, 
 or strangers, matter brought into a bill by amendment will not 
 
 424; Rowcn r. Cross, 4 John. Ch. 375; 
 Renwick r. Wilson, 6 John. Ch. 81 ; Bel- 
 knap V. Stone, 1 Allen, 572; Carey v. 
 Smith, 11 Geo. 539; Larkins v. Diddle, 21 
 Ala. 252. Being regarded only with ref- 
 erence to the furtherance of Justice, amend- 
 ments, as a general rule, are in the discretion 
 of the Court, especially in matters of mere 
 form.' Smith v. Babcock, 3 Sumner, 410; 
 Garlick v- Strong, 3 Paige, 440; McKlwain 
 V. Willis, 3 Paige, 505; Howell ?;. Sebring, 
 1 McCarter (N. J.), 84. Amendments are, 
 therefore, always allowed with great lib- 
 erality, until the proofs are closed. Cock 
 r;. Evans, 9 Yerger, 287, except where the 
 bill is upon o:ith. Cock v. Evans, ubi 
 supra; Cunningham v. Pell, 6 Paige, 655. 
 In case the bill is upon oath, there is 
 greater caution exercised in reference to 
 amendments. Ibid, ; Verplanck v. JMerct. 
 Ins. Co., 1 Edw.Ch. 46; Swift r. Eckford, 6 
 Paige, 22; Lloyd v. Brewster, 4 Paige, 538; 
 Parker v. Grant, 1 John. Ch. 434 ; Kogers 
 V. Rogers, 1 Paige, 424 ; Whitmarsh v. 
 Campbell, 2 Paige, 67. So where the ob- 
 ject of the amendment is to let in new facts 
 or defences, there is greater reluctance on 
 the part of the Court to allow the amend- 
 ment where it depends upon parol proof, 
 than where it depends on written instru- 
 ments omitted by accident or mistake.* 
 Smith V. Babcock, 3 Sumner, 410 ; Callo- 
 way V. Dobson, 1 Brock. 119. And the 
 Court will not allow amendments by 
 inserting facts known to the plaintiff at 
 the time of tiling his bill, uidess some ex- 
 cuse is given for the omission. Whitmarsh 
 V. Campbell, 2 Pai<;e, 67; Prescott i'. Hub- 
 bell, 1 Hill Ch. 217. Nor where the mat- 
 ter of the proposed amendment ni'ght with 
 reasonable diligence have been in.serted in 
 the original bill. North Amer. Coal Co. 
 V. Dyett, 2 Edw. Ch. 115. 
 
 When a jjlaintitl' wishes to amend a 
 Bworn bill, he must state the proposed 
 amendments distinctly, so that the Court 
 can see that they are merely iu addition 
 
 to the original bill, and not inconsistent 
 therewith. He must also swear to the 
 truth of the proposed amendments, and 
 render a viilid excuse for not incorporating 
 them in the original bill; and the applica- 
 tion to amend must be made as soon as the 
 necessity for such amendment is di'^cov- 
 ered. Rogers v. Rogers, 1 Paige, 424 ; Whit- 
 marsh V. Campbell, 2 Paige, 67 ; Verplanck 
 V. Merct. Ins. Co., 1 Edw. Ch. 46; Altree 
 V. Horden, 3 Lond. Jurist, 81. As to the 
 stage of tlie cause at which applications 
 for leave to amend should be made and 
 acted upon, see Hewett v. Adams, 50 
 Maine, 271; Clark v. Society in Keene, 46 
 N. H. 272, anil cases cited ; Codington v. 
 Mott, 1 McCarter (N. J.), 430. 
 
 1 Vere v. Glynn, 2 Dick. 441 ; Hoyt v. 
 Smith, 28 Conn. 466; Hurd v. Everett, 1 
 Paige, 124; Walsh v. Smvth, 3 Bland, 9, 
 20 ; U'Grady v. Barry, "l Irish Eq. 56; 
 Story Eq. Pi. §§ 332, 885 ; Carey v. Smith, 
 11 Geo. 539. 
 
 2 Jopling V. Stuart, 4 Ves. 619. Where 
 the plaintitt' amends his bill after answer, 
 if a further answer of the amended bill 
 becomes necessary, and is not waived, the 
 defendant must put in a further answer to 
 the amendment; or the plaintiff will be 
 entitled to an order taking the whole bill, 
 as amended, as confessed. Trust & Fire 
 Ins. Co. V. Jenkins, 8 Paige, 589; see 
 Thomas v. Visitors Fred. Co. School, 7 
 Gill & J. 369; Cowman v. Lovett, 10 
 Paige, 559 ; Tedder v. Stiles, 16 Geo. 1. 
 
 8 Bacon v. GritHth, ib. n. ; and see Lan- 
 don V. Heady, 1 S. & S. 44. 
 
 * If the descri[)tion of the plaintiff, or 
 his next friend, is not the same as when 
 the bill was filed, the new description 
 should aj)pear in the amended bill. Kerr 
 V. (iille.spie, 7 Beav. 269, 271; 8 Jur. 50; 
 but the name of his solicitor cannot be 
 altered, unless an order to chjinge tin; so- 
 licitor has been obtained. Braithwaite's 
 Pr. 299.
 
 AMENDING THE BILL. 403 
 
 have relation to the time of filing the original bill, but the suit Ch. VL § 8. 
 
 will be so far considered as pendent only from the time of the " »• -' 
 
 amendment.^ 
 
 Where there is a bill and cross-bill, and the plaintifi'in the orig- plaintiff, by 
 
 inal suit amends his bill before ansAver, he will lose his i)rioritv ?n»en<iing, 
 
 «.,,..,, ij loses his 
 
 01 suit, and his right to have an answer before he is called u])on to priority over 
 answer the cross-bill.- cross-bill. 
 
 Amendments to a bill are of two sorts : those which relate to amending, by 
 parties, and those which afiect the substance of the case.^ Under aittration ot 
 a common order to amend, as the plaintiff may be advised, the ^"^^ ''^' 
 plaintiff may, before a defendant has appeared to the bill, strike 
 out the name of such defendant, or the name of a co-})laintiff, or 
 add plaintiffs or defendants ; * after appearance, the plaintiff, under 
 such an order, may, it seems, before answer, add the names of 
 plaintiffs or defendants; but he cannot strike out the names of 
 plaintiffs or defendants : and under a common order to amend by 
 adding parties, the plaintiff cannot, after answer, alter his bill, by 
 putting in the names of other persons as co-plaintiffs with hiniself,^ 
 or after appearance by striking out the names as plaintiffs of any 
 persons filling that character upon the original record : ^ nor can 
 he introduce any allegation, against the original defendants, which 
 is not necessary to explain the amendment^ 
 
 In some cases, special orders may, however, be obtained for the Special order: 
 purpose of altering the co-plaintiffs ; but as a diminution of the ^^'len neces- 
 number of plaintiffs has the effect of lessening the defendant's se- ''"^^' 
 curity for costs, an order will not be made to strike out the names 
 of plaintiffs without the Court also providing, at the same time, 
 tliat security for the costs of the suit shall be given,^ unless such 
 security be waived by the defendants. In the case of Brown v. 
 Saicer,^ one of two co-jdaintifis, who had authorized the institu- 
 
 218 
 
 1 Ld. Red. 330; Long v. Burton, 2 Atk. South. & North. Ind. R.R. Co., 13 Allen, 
 
 400, 406. 
 
 2 Steward v. Roe, 2 P. Wms. 434; John- * See Braithwaite's Pr. 300. 
 
 son r. Freer, 2 Cox, 371; Noel v. Kinfr. 2 5 Lock v. Baglev, 1 W. N. G.5, M. R. ; 
 
 Mad. 302; and see post, Chap. XXXIV. but see ] lichen's r. ConKreve, 1 Sim. 500: 
 
 § ], CroM Jiills. But if the jdaiiitiff see also Milligan v. Mitchell, 1 M. & C. 
 
 amends his bill before he knows of the 433, 442; see 1 C. P. Cojip. t. Cott. 35- 
 
 filing of the cross-bill, he does not lose his Story Eq. PI. § 541, note; Millerr. McCan' 
 
 priority, (jray r. Ilaig, 13 Beav. f!5. The 7 I'aige, 451. ' 
 
 rule stated in the text applies, it is con- o lellowesu. Deere, 3 Beav. 353; Slog- 
 
 ceived, to a concise statement, which, gott v. Collins, 13 Sim. 456; 7 Jur. G3!)- 
 
 under 15 & 10 Vic. c. HC, § 1!», may be see Mason v. York & Cumb. R.R. Co., 52 
 
 nubstitute.l for a cross-bill. See Mertcns Maine, 107. 
 
 *• "nigl', 1 J- & II- 231; 6 Jur. N. S. ^ Gibson v. Ingo, 5 Hare, 156; 11 Jur. 
 
 ^^*- 555; Barlow v. M'Murrav, L. R. 2 K(i. 
 
 " By Matutc in Ma.ssachusetf.«, amend- 420; 12 Jur. N. S. 51'J, V! C S. 
 
 merits may be allowed by changing suit.") « Tor fonn of order, see Seton, 1253, 
 
 at Law inin proceedings in lupiilv, or pro- No. 7; Sweeny r. Hull, Saiisse ^: S. 662. 
 
 ceedings in Kiiiuty into suits at Law, if « 3 Beav. 5!J«; 5 Jur. 500; see llart». 
 
 thp same be necessary to enable the i)!ain- Tulk, 6 Hare, 611, 613; Bather r. Kears- 
 
 t.tT to sustain his a.tiou for the cause for ley, 7 Hcav. 545; M'Leod v. l,vflIelon, 1 
 
 which It was int.nded to be brought. St. Drew. 36; Drake v. Svmes, 7 Jur. N. S. 
 
 1865, c. 179, § 1; see Williston v. Mich. 3'jy, L. JJ. ; 3 De G., i'. & J. 401. As to
 
 404 
 
 THE BILL. 
 
 Oh. VI. 5 8. 
 
 Order to 
 strike out the 
 name of a 
 plaintiff, on 
 terms of giv- 
 ing security 
 for costs, is 
 not a matter 
 of course. 
 
 Where 
 allowed. 
 
 tioii of tlio suit, i-efuscd to proceed in it; a motion was there- 
 upon ni.i(U\ on hc'linlt' of tlie other co-phiintiff, that she miglit be 
 :it lihi'ily to aiiuMid (lie bill by striking out the name of the co- 
 plainlirt" who had refused to j)roceed, and by making him a defend- 
 ant, and (hat he might be ordered to pay the costs occasioned by 
 such amendment, and also the costs of giving any security for costs 
 which the defendants or any of them might be declared entitled to 
 in consequence of such amendment, and incidental thereto, and 
 also the costs of and incident to that a])])lication, to be taxed as 
 between solicitor and client. Lord Langtlale M, R., in giving 
 judgment upon the motion, said: "The suit cannot be prosecuted 
 nnless the alteration is made, and, therefore, justice will not be 
 done unless the alteration is made ; I think, therefore, that this 
 order must be made, but on such terms as will be just toAvards the 
 defen(hints, arid by secitring the costs of suit already incurred ; and 
 the co-plaintiff having, by revoking the authority, made this ap- 
 l)lication necessary, ought therefore to pay the costs." ^ 
 
 It must not be considered as a matter of course to obtain an 
 order to strike out the name of a person who has once been made 
 a plaintiff in a cause, even upon the terms of giving security for 
 costs. In the case of the Attorney- General v. Cooper ^ an applica- 
 tion was made, by a number of relators named in an information, 
 to strike out the names of several of themselves. Lord Cottenham, 
 in refusing the motion, observed : " It cannot be justly said, that 
 all that the relators have to establish in support of such an ap- 
 plication is, that the defendants will not be prejudiced by such an 
 alteration ; they must show that justice will not be done, or that 
 the suit cannot be so conveniently prosecuted, unless the alteration 
 is made. I cannot give them such an advantage as they ask, and 
 permit them to alter the record, merely because they may have a 
 different wish at one time, from that which they may have at 
 another time: which may be the result of mere caprice." 
 
 In the case of Hall v. Lack^ where it appeared that the asso- 
 
 the course where, after decree, the solicitor 
 of the plaintiffs ceases to practice, and one 
 of them refuses to concur with the rest in 
 appointing a successor, see IJutlin v. Ar- 
 nold, 1 H. «&: M. 715. For form of notice 
 of motion in such case, see Vol. HI. 
 
 1 Ilewett c. Adams, 50 Maine, 271. It 
 is within the (iisiretion of the Court to 
 permit a bill to l)e amended, by substi- 
 tuting the name of a new for the original 
 jilaintitf, even after answer filed; but it 
 must be upon the payment of all the costs, 
 up to the lime- of the amendment, as well 
 as of the amendment it.self. .Jennings v. 
 Springs, 1 IJailey Eq. 181; Winthrop v. 
 Farrar, 11 Allen, 398. 
 
 So an amendment may be allowed even 
 
 after a hearing on bill, answer, and proofs. 
 Clark I'. Society in Keene, 4G N. H. 272; 
 Codington v. Mott, 1 McCarter (N. J.), 
 430. 
 
 The Court may impose other conditions 
 of amendment besides the payment of 
 costs. Bellows v. Stone, 14 N. H. 175; 
 Bowen v. Idley, 6 Paige, 53 ; Claris v. So- 
 cietv in Keene, 40 N. H. 275. 
 
 •'■'•i M. & C. 258, 2G1; 1 Jur. 790. 
 
 8 2 Y. & ('. C. (J. G31 ; see also I'lunket 
 V. Joice, 2 Sch. & Let. 159, mile^ p. 72; 
 Jones V. Kose, 4 Hare, 52; where leave 
 given to strike out "on behalf of them- 
 selves and all other shareholders." Hart 
 V. Tulk, G Hare, 012; Drake v. Symes, 7 
 Jur. N. S. 399, L.J J.; 3 De G. K & J. 
 491.
 
 AjViending the bill. 
 
 405 
 
 ciation of a cestui que trust and trustee, as co-plaintiifs on tlie 
 record, might materially injure the interests of the former, Sir 
 J. L. Knight Bruce V. C. gave leave to amend the record, by 
 striking out the name of the trustee as plaintiff, and making him 
 a defendant. 
 
 Leave may also be obtained to amend a bill, by the addition of 
 persons as co-plaintiffs.^ After answer, however, the addition of a 
 co-plaintiff is not a matter of course, but is discretionary in the 
 Court; and it would appear, that Avliere a plaintiff applies, after 
 answer, for leave to amend his bill, by adding a co-jjlaintiff", he 
 must, in support of his ajiplication, show that the person proposed 
 *to be added is willing to become a co-plaintiff? An order for 
 leave to amend by adding a plaintiff after replication has been 
 refused, where the plaintiff has been guilty of laches? 
 
 A bill of discovery cannot be amended by adding parties as 
 plaintiffs. This was held to be the law of the Court by Lord 
 Eldon, in Lord Chohnoncleley v. I/orcl Clinton*^ where a bill had 
 been filed by cestui que trusts, in aid of an ejectment at Law, and 
 the defendant pleaded facts to show that the legal estate Avas in the 
 trustees. The difficulty in the case was, however, got over by the 
 plaintiffs consenting to the allowance of the plea, and moving to 
 amend by inserting a statement to show that the legal estate was 
 in trustees, and that a count had been introduced in the declara- 
 tion in ejectment on the demise of the trustees. 
 
 An order made at the hearing for leave to amend, by adding 
 parties, will not authorize the introduction of co-plaintiffs ; ^ but 
 the Court will sometimes allow a bill, which has originally been 
 filed by one individual of a numerous class, in his own riglit, to 
 stand over at the hearing, for the purpose of being amended by the 
 introduction of the words : on behalf of himself, and all others 
 of the class. Thus, in Lloyd v. Loaring,^ where a demurrer was 
 allowed, because the parties affected to sue in a corporate cajiacily, 
 leave was given to amend, by making them sue in their individual 
 rights as mem]>ers of a copartnership, on behalf of themselves and 
 others. 
 
 It has been said, tliat the Court will, at any time l)efore the 
 hearing, suffer parties to be added by amen<lment, upon a ])i"<)per 
 case being sliown;^ and that even after a decree, and before it 
 
 Ch. VL§8. 
 
 Additioa of 
 plaintifts, 
 after answer, 
 is not of 
 course. 
 
 Refused, 
 where laches. 
 
 No plaintiffs 
 can be added 
 to a bill of 
 discovery. 
 
 Order to 
 amend at 
 hearin}^, bj 
 addinji; par- 
 tics, will not 
 authorize 
 introduction 
 of new 
 plaintitl's. 
 
 I'artics may 
 lie addiMJ at 
 iiiiv time 
 before the 
 liearini; ; 
 
 1 Mnn(,'hiin r. I'.iake, L. H. .'i Ch. Ap. 
 32; Wintlirop r. Farrar, II Allen, li'.m. 
 
 ■■* The Governors of I.ueton Free Seiiool 
 r. Smith, M'l^l. 17, lU; Loch v. IJagk-y, 
 1 W. N. fir,. M. R. 
 
 « Milwiinl r. Olrifield, 4 Price, 325. 
 
 * 2 Mer. 71. 74; anrl hc-c jhisI, (,'hap. 
 
 XXXIV. § 2, lillUof l)i»r„r„;,. 
 
 » Millipm r. Mireh.ll, I M.' & f. 4.(.3, 
 442; Story F^j. I'l. §511, note; Miller v. 
 
 Mef 'an, 7 Paifjo, 451 ; see Noves r. Sawvrr, 
 3 Vt. IGO; Arendel v. Blackwell, 1 I)ev. 
 Ch. 354. 
 
 6 (i Vcs. 773, 778; sec also Attorney- 
 General V. Newcombe, 14 Ves. I, 0; (iood 
 V. HIewitt, 13 Vcs. 397, 401; and nnle, pp. 
 238, 242. 
 
 " (;oodwin V. Goodwin, 3 Atk. 370; see 
 Forbes I'. Stevens, 10 Jur. N. S. SHI, V. ('. 
 \V.; 4 N. R. 380, L. J,J; Story F:q. I'l.
 
 40(> 
 
 THE BILL. 
 
 Cii. VI. § 8. 
 
 and oven 
 aftor (K'lToo. 
 
 F,\ idoiK'o 
 ;ii,Miiist ])ar- 
 tifs addod. 
 
 l'"a('ts (U'oiir- 
 riiijr since l>ill 
 lilcd, can lie 
 introduced liy 
 umendnicut : 
 
 if the cause is 
 in a state to 
 allow ol' an 
 aniendnicnt ; 
 
 has been enrolled, persons interested may, by petition, be made 
 ])arties and let into it, if their right be interwoven with the other 
 plaintitls, and settled (in general) by the decree : they paying the 
 plaintitt's a proportionable part of the charges of the suit.^ 
 
 If i>arties are added after the expiration of the time for giving 
 notice of the cross-examination of the Avitnesses, the evidence of 
 such Avitnesses cannot be read against the parties so added.*^ 
 
 It is not within the province of this work to point out tbe cases 
 in which amendments may become requisite, for the purpose of 
 altering the case upon the record as against the defendants already 
 before the Court, or to what extent they may be made. It is to 
 be observed, however, that the rule which formerly existed, that a 
 })laintiii' oxaght not to introduce facts, by amendment, which have 
 occurred since the filing of the original bill,* has been abolished ; 
 
 § 887; Cooper Eq. PI. 333; Ld. Red. 
 325; Hutchinson r. Reed, 1 Iloff. Ch. 
 31G; Gordon v. Holland, 3 Ired. Ch. 
 362; Codington v. Mott, 1 McCarter (N. 
 J.), 430; Park v. Ballentine, 6 Blackf. 
 223. In respect to amendments as to 
 parties, Courts are more liberal than in 
 respect to other amendments. A Court of 
 Equity will not dismi.ss a bill absolutely, 
 for want of proper parties, if the plaintitF 
 shows enough to give color to his claim for 
 relief against the parties not before the 
 Court. Allen t'. Smith, 1 Leigh, 331; see 
 ante, 294, note; Thorn v. Germand, 4 John. 
 Ch. 363; Pleasants i'. Logan, 4 Hen. & 
 M. 489. Upon a creditor's bill against 
 an insolvent corporation for a receiver, &c., 
 the plaintiff may pray a discovery of the 
 stockhoklers liable, and having obtained it 
 maj' amend his bill by making such stock- 
 holders parties. Morgan v. New York & 
 Albany R.R. Co., 10 Paige, 290 ; see 
 ^MclJougald V. Dougherty, 14 Geo. 674; 
 Hewett V. Adams, 50 Maine, 271; McLel- 
 lan V. Osborne, 51 Maine, 118. 
 
 1 VVyatt's P. R. 301. Amendments are 
 allowed in Equity with great liberality, 
 but, as a general rule, amendments which 
 seek to make a new case inconsistent with 
 that originally made, if allowable at all, 
 should be applied for and made before the 
 cause is at issue. But mere formal amend- 
 ments, such as the introduction of new 
 parties, or amendments to the prayer of 
 the bill, to meet the exigency of the case, 
 ■will be made up to, and at, the final hear- 
 ing. Codington v. Mott, 1 McCarter 
 (X. .J.), 430 ; see Philhower v. Tod, 3 
 Stockt. (N. .J.) .54, 312; Buckley v. Cross, 
 Saxton, 504; Mavor v. Dry, 2 S. & S. 
 113; Henry r. Brown, 4 Halst. Ch. 2-15; 
 Rodgers v. Rodgcrs, 1 Paige, 424: Wiiit- 
 marsh «. <'ampbell, 2 Paige, 67; Vcqilanck 
 V. Merct. Ins. Co., 1 Edw. Ch. 46; Pratt 
 V. Bacon, 10 Pick. 123. 
 
 2 Pratt?'. Harker, 1 Sim. 1, 5; .Tames r. 
 James, 4 Beav. 578; 5 Jur. 1148; Quan- 
 tock V. Bidlen, 5 Mad. 81. .\fter the wit- 
 ne.sses in a cause have been examined, and 
 
 the proofs closed, no amendment of the 
 bill IS allowed, except in matters of mere 
 form, unless under very special cirtnim- 
 stances. Bowen v. Idley, 6 Paige, 467; 
 Story Eq. PI. §887; Clark v. Society in 
 Keene, 4G N. H. 272; Tilton v. Tilton, 9 
 N. H. 394; Bellows v. Stone, 14 N. H. 
 175 ; Doe v. Doe, 37 N. H. 268 ; see Wil- 
 bur v. Collier, 1 Clark, 315; Shephard v. 
 MeiTill, 3 John. Ch. 423; Smith v. Burn- 
 ham, 4 Harr. & J. 331; Stewart v. Duvall, 
 7 Gill & J. 180; Ross v. Carpenter, 6 
 McLean, 382. 
 
 3 See Longworth v. Taylor, 1 McLean, 
 514. Amcndnu'uts to a bill are always 
 considered as foniiing a part of the original 
 bill. They refer to the time of tiling the 
 bill ; and the defendant cannot be required 
 to answer any thing which has arisen since 
 that time, fturd v. Everett, 1 Paige, 124; 
 Widsh V. Smyth, 3 Bland, 9, 20; O'Gradv 
 V. Barry, 1 Irish Eq. 56; Story Eq. PI. 
 §§ 332, 885. Unless, indeed, the defend- 
 ant has not put in his answer, in which 
 case the bill may be amended by adding 
 supplemental matter. Story Eq. PI. § 885; 
 Candler V. Pettit, 1 Paige, 168; Ogden «. 
 Gil)bons, Halst. (N. J.) Dig. 172. Conse- 
 quently an oriejiial l)ill cannot be amended 
 by incorporating therein any thing which 
 arose subsequently to the commencing of 
 the suit. This should be stated in a sup- 
 plemental bill. Stafford v. Howlett, 1 
 Paige, 200; Saunders v. Frost, 5 Pick. 
 276 ; see Sanborn v. Sanborn, 7 (iray, 142. 
 (ienerally, a mistake in the bill in the 
 statcnii'iit of a fact should be corrected by 
 an amendment, and not by a right state- 
 ment of the fact in a supi^lemental bill. 
 Strickland v. Strickland, 12 Sim. 253; 
 Stf.rv E... PI. §§ 332, 614; Stafford v. Hew- 
 lett,"! Paige, 200. ' 
 
 When the cau.se has proceeded so far, 
 that an amendment cannot be made, or if 
 material facts have occurred s>il)se(|nently 
 to the eommeneing of the suit, the (,'ourt 
 will give the plaintiff leave to file a sup- 
 plemental bill. And where such leave is 
 given, the Court will permit other matters
 
 AMENDING THE BILL. 
 
 407 
 
 and the facts and circumstances occumng after the institution 
 of a suit may be introduced into the bill by amendment, if 
 the cause is otherwise in .a state in which an amendment may 
 be made,^ and if not, they may be added by supplemental state- 
 ment.^ 
 
 Where an answer of a defendant states focts which are material 
 to the plaintiff's case, but which have not been stated in the bill, 
 it is not necessary that the plaintiff, in order to avail himself of 
 them at the hearing, should introduce such facts into his bill by 
 amendment, although perhaps the most convenient course would 
 be to do so.* Where, therefore, it is important to the plaintiff 
 that a fact disclosed in the answer should be further incpiired into, 
 or avoided by some further statement, the practice is often re- 
 sorted to of introducing such fact from the answer of the defendant 
 into the bill ; and where a plaintiff, not being satisfied with the 
 answer, amended his bill, stating, by way of pretence, a quotation 
 from the answer, and negativing it, and insisted that the facts 
 would appear differently if the defendant would look into his ac- 
 counts. Sir Thomas Plumer V. C. held, that the matter so intro- 
 duced was not impertinent.* 
 
 Great latitude is allowed to a plaintiff in making amendments, 
 
 Cn. YI. § 8. 
 
 and if not, by 
 supplemental 
 statement. 
 
 Amendment 
 not necessary 
 to put facts 
 stated by an- 
 swer in issue ; 
 
 unless to 
 avoid their 
 ett'ect, or to 
 found an 
 inquirj'. 
 
 to be introduced into the supplemental bill, 
 which mifiht ha%'e been incorporated in the 
 orij^inal bill bv way of amendment. Staf- 
 ford V. Ilowlett, 1 Paige, 200; see Yer- 
 planck V. Merct. Ins. Co., 1 Edw. 46; 
 Pinch f. Anthony, 10 Allen, 470. 
 
 Cases, however, do sometimes occur 
 where the introduction, by amendment, 
 of matters which have occurred since the 
 date of the original bill will l>e permitted 
 bv the Court; thus, where the plaintiff has 
 ail inchoate right at the time of prei)aring 
 ills original bill, wliich merely rei|uiies 
 some tbriiial act to render his title jpcrfect, 
 and such formal act is not coni])]ctcd until 
 atk-rwards, the introduction of that fact by 
 ameniliiM-ut will 1m' i)criiiitted. The case 
 of an e.\ecutor tiling a bill l)efore probate, 
 and afterwards obtaining probate, is an 
 instance of this kind. Humphreys v. Hum- 
 phn^VH, ;{ 1'. Wilis. ;t48: Ibadford i\ Felder, 
 2 MM'ord Ch. 170; iiiiloiit v. Morse, 2 
 Hayw. 175; Ihitbr »•. Huller, 4 l.iU. 201; 
 Ula.-kwell i: Hlackwell, .'!:! Ala. 57. A bill 
 wa.H amended so as to charge that an infant 
 defendant had attained lier full age, tiiere- 
 l)V to coiniiil her to answer as an adult. 
 Kijip >'. Ilaiina, 2 lilaiid, 20. 
 
 I 15 & HI Vic. c. 8(1, § .53; sec Tudway 
 r. .Ion. -., 1 K. \: .1. 0!)! ; "Forbes r. Stevens, 
 uhi »n/>. ; ami see .^ttorncv-difiieral ''. 
 Portreev<- of Avon, 11 W. li. 10.50, 1051, 
 L. .1,1.; (loflfn-y v. Tucker, ;J3 Heav. 280; 
 .lur. N. S. 818; I'eardmore v. Gregor>-, 
 2 H. & M. 4!)1; II .lur. N. S. .'JO.') ; aiid 
 ••ajies cited, li'.i IJcav. 2H:!, n. ; Foulkes v. 
 Davies, L. U. 7 Ivi- 42, 40; Attorney- 
 
 General r. Cambridge Consumers' Gas Co., 
 L. K. 4 Ch. A p. 71. 
 
 2 15 & 10 Yie. c. 80, § 53; see Rogers 
 V. Solomons, 17 Geo. 598; Ord. XXXII. 
 2; and see post, Chap. XXXIII., Jievivnr 
 and Snpjdemeid. An abatement cannot be 
 thus remedied. Commercll v. Hall, 2 Drew. 
 194; S. C. nam. Commerell i: Bell, 18 
 Jur. 141; Williams v. .lackson, 5 .Jur. N. 
 S. 204; 7 W. K. 104, Y. C. AY.; Webb «. 
 Wardle, 11 .lur. N. S. 278, Y. C. K. 
 
 8 Attwood V. , 1 Uuss. 353, 561; 
 
 Maury v. Lewis, 10 Yerger, 115; Rose v. 
 Mvnatt, 7 Yerger, 30; but see Thomas v. 
 "\Vanier, 15 Yt. 110; Dujiouti v. Mussv', 4 
 Wash. C. V. 128. Hut where it is impor- 
 tant to the iil,-iiiilitl'. that facts disclosed in 
 the answer should lie further in(|uired into, 
 or avoided liy some further statement, such 
 facts may be introduced into the bill from 
 the answer of the defendant, hy way of 
 amendment. Scelye v. liochm, 2 JIad. 
 170; Sjicncer »'. Yan Duzen, 1 I'aige, 555. 
 IJut no admission in an answer can, under 
 any circumstances, lay a foundation for 
 relief under anv sjiecilic head of K(|iiity, 
 unless it lie sulistantially set forth in the 
 bill. .lackson v. Ashfon, 11 Peters, 229. 
 The bill should be amended so as to state 
 the contract set up in the answer, it' that is 
 to be relicil u]ion for a decree. Hyrne v. 
 Komaine, 2 Kdw. Ch. 445. 15ut it" is not 
 necessarj' or jiroper to amend the bill for 
 the i)urposc of traversing defensive aver- 
 ments lirouglit forward by the answer. 
 Lanier r. Hill, 30 Ala. 111." 
 
 1 Seelye f. P.oelim. 2 Mad. 170, 180. 
 
 Great latitude 
 allowed in 
 amendment
 
 .[()S TIIIC BILL. 
 
 I'll. VI. §8. and the Court has even gone to tlie extent of permitting a bill to 
 
 '^ Y he eonverted into an information ; ^ it has also been held, where 
 
 strtioni.-iit a iilaintirt" tiled a bill, stating an agreement, and the defendant by 
 alomi' with ^''^ answer admitted that there was an agreement, but diUerent 
 dinvront tVoiu that stated by the plaintiif, that the plaintiff might amend 
 
 alimiuoTby his bill, td^andoning his first agreement, and praying for a decree 
 answer; according to that admitted by the defendant.^ In that case, 
 
 however, the amendment was ])ernutted, because the bill in its 
 original form might have been prepared under a mistake or mis- 
 conception of counsel,' and the plaintiff, having afterwards dis- 
 covered the error, was allowed by the Court to abandon his 
 original case, and insist upon the one alleged by the defendant ; 
 hut not by but the Court will not carry its liberality further, and permit a 
 the altcfna" l»laintifi' to amend his bill, so that he may continue to insist ui)on 
 tiyo. on such x]^q agreement originally stated, and if he fails in that, to get the 
 ajjreenieut. benefit of the One admitted by the defendant. Upon this prin- 
 ciple, Avhcre the original bill prayed the specific performance of an 
 agreement, and the defendant denied the agreement as stated in 
 the bill, but admitted a different one, whereupon the plaintiff 
 amended his bill, continuing to insist on the original agreement, 
 and praying in the alternative, if not entitled to that, to have the 
 execution of the admitted agreement : Lord Redesdale dismissed 
 the bill Avith costs, but without prejudice to any bill the plaintiff 
 might be advised to file, to obtain a performance of the admitted 
 agreement.^ 
 Bill of dis- It seems that, as a general rule, the Court will not permit a bill, 
 
 brcraverted* ^^^^ ^^^^' ^^^^ Hierc purposc of discovery, to be converted into one 
 into a bill for for relief, by the addition of a prayer for relief,^ though it has been 
 reiiet,sem e; j^j^^^^g^i -^^ some cases ; ® and it seems, that a bill for relief cannot 
 rehef,' intl) be Converted into a bill for discovery by striking out the prayer ; '' 
 thus, in Xo7'd Cholmondeley v. Zord Clmtoti,^ where the defend- 
 ants, having answered the bill, obtained an order for the plaintifi" 
 to elect whether he would proceed at Law or in Equity, where- 
 
 1 President of .St. Mary Magdalen v. « Hildyard v. Cressy, 3 Atk. 303 ; Crow 
 Sibthorp, 1 Russ. 154. v. Tyrell, 2 Mad. 397, 409 ; Lousada v. 
 
 2 Per Ld. Redesdale, Lindsay ». Lynch, Templer, 2 Russ. 561, 5G5; Severn v. 
 2 Sch. & Lef 9 ; Harris v. Kniekerbocker, Fletcher, 5 Sim. 457. 
 
 5 Wend. 638; S. C. 1 Paige, 209; see ' An application to the Court in Massa- 
 
 Bellows V. Stone, 14 N. H. 175. This has chusetts, for relief in Equity, which does 
 
 been allowed, even after a hearing on the not contain a prayer for proces.s to be 
 
 bill, answer, and evidence. Bellows v. served on the defendant, or conclude with 
 
 Stone, supra. the general interrogatory as required by 
 
 8 See McEIwain v. Willis, 3 Paige, 505. the Rules for Practice in Chancery in that 
 
 * I>indsav v. Lynch, 2 Sch. & Lef 1 ; State, may be regarded a.s a bill ; and if 
 
 see also V^Vjllam v. Ilearn, 7 Vcs. 211, properlv amended, relief may be granted 
 
 222; and Ueniston v. Little, 2 Sch. & Lef. on it. Ik'lknap v. Stone, 1 Allen, 572; see 
 
 11. n. ('(). Wright v. Wright, 4 Ilalst. Ch. (N. J.) 
 
 5 Butterworth v. Bailev, 15 Ves. 358, 143. 
 
 301; Jackson v. Strong, M'Lcl. 245; Par- « 2 V. & B. 113. 
 ker V. Ford, 1 <'<)ll. 506; and sea post, 
 Chap. XXXIV. § 2, Bills of Discovery. 
 
 bill of 
 discover)'.
 
 AMENDING THE BILL. 
 
 409 
 
 upon the plaintiff elected to proceed at Law, and moved to dismiss 
 his bill as far as it sought relief, and to amend the record by strik- 
 ing out the prayer for relief, the motion was refused : Lord Eldon 
 being of opinion, that the better course for the plaintiff would be 
 to dismiss his bill, and file another for discovery only ; which was 
 accordingly done.^ 
 
 Any amendment of a bill, however trivial and unimportant, 
 authorizes a defendant, though not required to answer, to put in 
 an answer, making an entirely new defence, and contradicting his 
 foi-mer answer.- Thus, in Bolton v. Bolton,^ Sir Lancelot Shad- 
 well V. C. on this ground refused, Avith costs, a motion to take 
 an answer to an amended bill off the file : although it m\is filed 
 nearly three years afler the bill had been amended, and eight 
 years after the original answer, and contradicted the original 
 answer, introducing no less than four new issues or defences. An 
 amendment of the bill does not, however, enable a defendant who 
 has answered the original bill to demur to an amended bill upon 
 any cause of demurrer to which the original bill was open,* unless 
 the nature of the case made by the bill has been changed by the 
 amendments.^ 
 
 No alteration can be made in any pleading, or other matter, 
 after it has been filed, and by that means become a record of the 
 Court, without the sanction of an Order.^ Orders for leave to 
 amend bills, may, subject to the rules and regulations hereafter 
 pointed out, be obtained at any period of the cause, previously to 
 the hearing.'' 
 
 An order for leave to amend a bill may be obtained at any time 
 before answer, upon motion or petition without notice ; ^ and for 
 
 Cii. VI. § 8. 
 
 After amend- 
 ment, defend- 
 ant may 
 make a new 
 defence ; 
 
 but may not 
 demur to 
 what he has 
 answered ; 
 
 unless case 
 changed 
 by the 
 amendment. 
 
 Amendment 
 only made 
 upon order. 
 
 Order is of 
 course, if be- 
 fore answer; 
 
 1 2 Mer. 71 . In the above case, Gurish 
 V. Donovan, 2 Atk. 160, was cited in arjju- 
 nient in support of the motion; liut. upon 
 reference to the Kegistrars' book, it ap- 
 [K-arcd tliat the order for strikiiij^ out the 
 prayer was made by consent, and that an 
 answer was put in l)y the defendant after 
 the order was made. 2 V. & B. 114, n. 
 (a); s<'(' mile, 402. note. 
 
 a Miller r. Whittaker, 33 III. 380; Trust . 
 & Kire [n«. Co. v. Jenkins, 8 I'ai^'c, 0811; 
 Bowcn r. Mley, I'ai^e, 40; see IJasan- 
 fjuet r. MarMham. 4 Sim. U't'^i; Hiciiardson 
 V. Kichardson, 5 I'ai^e, 'A\ Thomas r. Vis- 
 itors of Fred. Co. School, 7 (Jill it J. 
 3fi9. In this last case an additional an- 
 swer to an amended bill was ordered to be 
 taken off the tile, because not tiled with 
 leave. 
 
 » 2:»th June, 1831, MSS., ex relntkme 
 Benmei. 
 
 * Attorney-General v. Cooper, 8 Hare, 
 IfiO: see also Wyllie v. Ellice, Ilaro, 505. 
 For ra«f prior to 37 f)r(l. Au^., 1841 (now 
 Orel. XIV. 0), see F.llicc- i-. (ioodson, 3 .M. 
 &(J. 053, 001; 2 Jur. 24!). 
 
 6 Cresy v. Bevan, 13 Sim. 354. 
 
 6 See Thomas v. Visitors of Fred. Co. 
 Society, 7 Gill & .J. 30!). 
 
 "! Sec Luce r. (iraham, 4 .lohn. Ch. 170; 
 Hunt r. H.,lland, 3 Vdv^i-, 78. 
 
 « Ord. IX. 8. .\s many orders as may 
 be rc(iuircrl may be thus obtained, and if 
 interrogatories have been tiled, and it is 
 necessary to amend them, the Order may 
 give leave to do so. Hraithwaite's I'r. 31!); 
 see form of Order, Seton, 12.j2, No. 2. The 
 following rules on the sul)jcct of amend- 
 ments were adopted by the Sui)r(inc ( 'ourt 
 of the I'liited States. January Term, 1842. 
 "The ])laiutiff shall be at liberty, as a 
 matter of course, and without [jayment of 
 costs, to amend his bill in any matters 
 whatsoe^•er, before any coj)y has been taken 
 out of the Clerk's ollice, and in any small 
 matters afliTwards, such as tilling up 
 blanks, correcting errors of dates, misno- 
 mer of ])arties, misdescriptir)ii of premises, 
 clerical errors, and generally in matters of 
 form. Hut if he amend in a nuiterial |)oiut 
 (as he may do of course), after-a copy ha.s 
 been so taken, before any answer, or plea,
 
 410 
 
 THE BILL. 
 
 Cii.VT. §8. ilio purpose of addiusx parties only, an order for leave to amend 
 
 ^^ Y ' may bo obtained in like manner at any time before the eause is 
 
 or for ^luqiose set down for hearing;^ but, as we have seen, if the order is ob- 
 tained after the time for giving notice of the cross-examination 
 of the witnesses, the evidence cannot be read against the ])arties 
 so added.^ 
 
 An order for leave to amend a bill, only for the 2)urpose of 
 rectifying some clerical error in names, dates, or sums may be 
 obtained at any time, upon motion or petition without notice.' 
 The order should specify the errors which are to be corrected.* 
 
 of nddiiij; 
 parties before 
 cause set 
 down; 
 
 or of reotify- 
 iiifj clerical 
 errors. 
 
 or demurrer to the bill, he shall pay to the 
 defeiKlant the costs occasioned thereby, 
 and shall, without delay, furnish him a 
 fair copy thereof, free of expense, with 
 suitable references to the places where the 
 same are to be inserted. And il the amend- 
 ments are numerous, he sliall furnish in 
 like maimer to the defendant a copy of the 
 whole bill as amended, and if there be 
 more than one dcl'cndant, a copj' shall be 
 furnished to each defendant affected there- 
 by." Equity Rule, 28. "After an answer, 
 or ])lea, or demurrer, is put in, and before 
 rei)lication, the plaintift' may, upon mo- 
 tion or petition, -without notice, obtain an 
 order from any judge of the Court, to 
 amend his bill on or before the next suc- 
 ceeding rule day, upon payment of costs, 
 or without payment of costs, as the Court 
 or judge thereof may in his discretion 
 direct. But, after replication filed, the 
 plaintitl" shall not be at liberty to with- 
 draw it and to amend his bill, except upon 
 a special order of a judge of the Court, 
 upon motion or petition, after due notice 
 to the other party, and upon proof by affi- 
 davit, that the same is not made for the 
 pui-pose of vexation or delay, or that the 
 matter of the proposed amendment is ma- 
 terial, and could not with reasonable dili- 
 gence have been sooner introduced into 
 the bill, and upon the plaintift''s submit- 
 ting to such other terms as may be imposed 
 by the judge for speeding the cause." 
 Equitv Kule, 2t». "If the plaintiff, so 
 obtaining any order to amend his bill 
 after answer, or plea, or demurrer, or after 
 replication, shall not file his amendments, 
 or amended bill, as the case may require, 
 in the clerk's office, on or before the next 
 succeeding rule day, he shall be considered 
 to have aliandoned the same, and the cause 
 shall (inicccrl, as if no ap])lication for any 
 amendment bad Ijcenniade." I'^quity Rule, 
 30; Story Eu. PI. § 886, note. 
 
 By the Rules of Practice in Chancery in 
 Massachusetts, the plaintiff may aniend 
 his bill at anv time before answer, plea, or 
 demurrer, filed, of course, and without 
 payment of costs: but if the defendant's 
 appearance shall have been entered, the 
 plaintiff shall, at his own expense, furnish 
 the defendant with a certified cojjy of the 
 amended bill. No amendment, however, 
 ehall be allowed, as of course, to a bill which 
 
 has been sworn to by the party. If the de- 
 fendant demurs to the bill for want of ])ar- 
 ties, or other defect, which does not go to 
 the equity of the whole bill, the jilaintift' 
 may amend at any time before the demur- 
 rer is set down tor argument, or within 
 fourteen daj's after the demurrer is tiled, 
 and notice thereof given to him, upon the 
 payment of a term fee. Rules 20, 21. And 
 up()n the coming in of the answer, if the 
 plaintiff shall find it necessary to amend 
 his bill, in order to meet the case made 
 by the answer, he may do so, by furnishing 
 to the defendant a certified copy of the 
 amendment. Rule 22. See Gerrish v. 
 Black, 99 Mass. 315. For the rule in 
 Maine, see 3d Rule of Chancery Practice, 
 37 Maine, 581; see Seelye v. Boehm, 2 
 Mad. 176; 1 Barb. Ch. Pr. 208-210. 
 
 In New Hampshire, amendments may 
 be made to the bill, answer, or pleadings, 
 in proper cases, upon the order of the judge 
 in vacation, and upon such terms as he 
 may impose; the amendments being sub- 
 ject, however, to the order of the Court. 
 Rule 18, of Chancery Practice, 38 N. II. 
 608. For forms of motion paper and peti- 
 tion, see Vol. III. 
 
 1 Ante, pp. 293, 294; Goodwin v. Good- 
 win, 3 Atk. 370; Brattle v. Waterman, 4 
 Sim. 125; Brvan v. Wastell, Kay Ap. 47; 
 18 Jur. 346;"^ Gill v. Rayner, 1 K. & J. 
 395; see, however, Hitchcock i'. Jacques, 
 9 Beav. 192. 
 
 2 Ante, pp. 293, 294, 405; Quaiitock v. 
 BuUen, 5 Mad. 81; Pratt i'. Barker, 1 Sim. 
 1, 5; J;imes v. James, 4 Beav. 578; 5 Jur. 
 1148. 
 
 3 Ord. IX. 9. The signature of counsel 
 is not required to an amendment of this 
 description; but such an amendment will 
 render inoperative an order to take a bill 
 pro confesi^o; Weightman v. Powell, 2 De 
 G. & S. 570; 12 Jur. 958; see, however, 
 Cheeseborough v. Wright, 28 Beav. 173. 
 As to the necessity of reserving the bill 
 after such an amendment, see Barnes v. 
 Ri.lgway, 1 Sm. & G. Ap. 18. The de- 
 fendant may, where he apprehends danger 
 from a clerical mistake, in stating a deed 
 
 * Braithwaite's Pr. 304; and see form of 
 Order, Seton, 1251, No. 1.
 
 AMENDING THE BILL. 
 
 411 
 
 If a demurrer to the whole bill is not set down for argument 
 within twelve days, or a demurrer to part of the bill Avithin three 
 woeks, after jfiling the same, the plaintiff must, within such respec- 
 tive times, serve an order, which may be obtained on motion or 
 petition of course, for leave to amend the bill : otherwise, the 
 demurrer will be held sufficient.^ 
 
 If a plea to the whole or a part of a bill is not set down for 
 argument within three weeks after the filing thereof, the plaintiff 
 must within that time serve an order, which may be obtained on 
 motion or petition of course, for leave to amend the bill, or under- 
 take in Avriting to reply to the plea: otherwise, the plea will be 
 held good.^ 
 
 Where a demurrer has been overruled, it is irregular to obtain 
 an order of course to amend pending an appeal : and in such a 
 case, the order was discharged with costs, and the amendments 
 expunged.^ 
 
 In like manner, it is irregular to obtain an order of course to 
 amend, pending an inquiry which of two suits is most for an 
 infant's benefit.* 
 
 If, at the time the order for amendment is made, none of the 
 defendants have appeared, the plaintiff may amend without pay- 
 ment of any costs.^ If any of the defendants have appeared, but 
 have not ansAvered, or," having answered, the plaintiff requires no 
 further answer from them, the plaintiff may amend Avithout pay- 
 ment of any costs to them ; but the plaintiff must pay '20.s. to each 
 defendant, or set of defendants, who have answered, and from 
 whom the plaintiff requires a further ansAvcr.^ 
 
 Where no further ansAver is required, the order should contain 
 a recital to that effect : otherwise it is irregular.'' 
 
 It is noAv proposed to consider the circumstances under Avhich a 
 bill may be amended after answer.* Where there is a sole de- 
 lendant, or Avhere there being several defendants, they all join 
 in the same answer, the ])laintiff may, after ansAver and before 
 
 Ch. VI. § 8. 
 
 ■where plea 
 not set down. 
 
 Order of 
 course irreg- 
 ular, after 
 demurrer 
 overruled, 
 pending an 
 appeal ; 
 so also pend- 
 ing inquiry 
 as to infant's 
 suits. 
 
 Fixed costs 
 payable on 
 amendment. 
 
 Form of 
 order, where 
 no further 
 answer 
 required. 
 
 Amending 
 after answer, 
 and Iw'fore 
 replication : 
 
 or other iii'tnimrnt. in a 'ill, have the hill 
 aniciide I so a- to idciitiCy 'lie iiistniineut 
 on wh <li tlif >uit is Itroiifiht, und prevent 
 a !"•€■ lid sujf on th'' siinie. Ontario Ihink 
 V. Sch>rnierh<irn, 10 I'aig-', 100. A mere 
 clericii erior may ho nmended in m hill, 
 even nU>T (inal ilecree. llonnel'y v. I'.wart, 
 3 I.'icli. r,r| 18. ForfoiiUHof nio'tion paper, 
 and pettinn. fee Vol. III. 
 
 1 Ord. XIV. 14, ir,. As to the effect of 
 holding !i demurrer siltliciciit, see /'"<^^ 
 Chnp XIV. § •'). Fur lornis of motion 
 paper on'l petition, sec ViJ. III. 
 
 2 Ord. XIV. 17. Ah to the enect of 
 holding a ph-a .'^ulTicii-nt, see pi'Kf, Chan. 
 XV. 6 .'), Ai d xvi- Caiiipli.ll «;. .I(.\ce. I>. 
 H. 2 r.q. 37", V. O. W. For form- of mo- 
 lion I'Dper »nd petition, see Vol. III. 
 
 8 Ainslie v. Sims, 17 I?eav. 174. 
 
 * Fletcher P.Moore, 11 Ueav. G17; 1.3 Jur. 
 106.3. 
 
 6 Saunders v. Frost, 5 Pick. 259; Droul- 
 lard V. Baxter, 1 Scam, liil; Hule 20, 
 Mass. Cliancerv, ante, 410, note. 
 
 « Anie, 410, "note. 
 
 T IJudilington v. Woodley, 9 Sim. 380; 
 2 Jur. 017; Uroeze v. hnglish, 2 Hare, 
 638. 
 
 8 See DrouUard v. Baxter, 1 Scam. 191 ; 
 Itules 20fh and 30th nf the Kcpii'v Hull's 
 of the Supreme Court of the Fiii'ed 
 State'^; Hules 20;h and 22n<l of tlio Rules 
 for (Jhancery I'ractice in Massachsetts, 
 ante, 410, note.
 
 412 
 
 THE BILL. 
 
 Cii. VI. § 8. 
 
 where one 
 answer; 
 
 whore sovenil 
 answers. 
 
 Voluntary- 
 answer suffi- 
 cient, as soon 
 as put in. 
 
 Vacations 
 exchided in 
 computation. 
 
 Times of 
 vacation. 
 
 In the 
 
 Accountant- 
 General's 
 Office. 
 
 Daj-s of com- 
 mencement 
 
 roplu'ntion or undortnkinfj to reply, obtiiin one order of course for 
 le.ive to auteiul tlie bill, at any time within four weeks after the 
 answer is to be tleetued or is lield to be sufficient ; ^ and where 
 there are several defendatits who do not join in the same answer, 
 the jtlaintitV (if not precluded from amending, or limited as to tlie 
 time of amending by some former order), may, after answer, and 
 before replication or undertaking to rc})ly, at any time within four 
 weeks after the last of the answers required to be put in is to be 
 deemed or is held to be sufficient, obtain one order of com-se, for 
 leave to amend his bill.'^ An order of course cannot, however, 
 be obtained, in either of these cases, after any defendant, being 
 entitled to move, has served a notice of motion to dismiss the bill 
 for want of prosecution.^ 
 
 A voluntary answer is deemed sufficient as soon as it is put in ; 
 and therefore, in that case, the period of four weeks commences 
 to run as soon as it is filed.* 
 
 In computing the period for obtaining orders for leave to amend 
 bills, the times of vacation are not to be reckoned.'' 
 
 It will be convenient here to state the different times of vacor- 
 tion. The vacations observed in the several offices of the Court, 
 excei)t in the office of the Accountant-General, are four in every 
 year: viz., the Easter Vacation, the Whitsun Vacation, the Long 
 Vacation, and the Christmas Vacation. (1) The Easter Vacation 
 commences and terminates on such days as the Lord Chancellor 
 every year specially directs. (2) The Whitsun Vacation com- 
 mences on the third day after Easter Term, and terminates on the 
 second day before Trinity Term in every year. (3) The Long 
 Vacation commences on the 10th day of August, and terminates 
 on the 28th day of October in every year. (4) The Christmas 
 Vacation commences on the 24th day of December in every 
 year, and terminates on the 6th day of the following month of 
 January.® 
 
 The vacations in the office of the Accountant-General are the 
 same as in the other offices : except as to the Long Vacation, 
 which commences and terminates on such days as the Lord Chan- 
 cellor every year directs.'' 
 
 The days of the commencement and termination of each vaca- 
 
 1 Ord. IX. 10. Before replication, the 
 order to amend is of course. Buckley v. 
 Corsp, Saxton, 504. 
 
 2 d. IX. 11. To avoid a notice to dis- 
 miss, the order of course, under rr. 10, 11, 
 must ali^o b», served; see Ord. XXXIII. 10 
 (1). Ord IX. 11, applies to hills of dis- 
 covery, i'eile V. Stoiidart, 11 Beav. 591. 
 
 3 Ord. IX. 12; see jx-st, 41C, n. 
 
 * Kofjers v. Frver, 2 W. K. 67; 2 Eq. 
 Kep. 253, V..C. K. 
 
 6 Ord. XXXVII. 13 (1); and see j'ost, 
 p 420. 
 
 6 Ord. V. 4 (1-4). The duties of the 
 Vacation .lud^'e commence »s each Court 
 rises, altlioutih the vacation may not have 
 actually commenced. Fr;mcis v. Browne, 
 8 .lur. N. S. 7b5; 10 W. R. 811, L. C; see 
 Ord. VI. 11, as to power of one judge to 
 act for another during vacation. 
 
 ^ Ord. V. 6.
 
 AMENDING THE BILL. 
 
 413 
 
 tion are included in and reckoned part of such vacation.^ And 
 the Lord Chancellor may from time to time, by special order, 
 direct any of the vacations to commence and terminate on days 
 different from the fixed days before mentioned.*^ 
 
 When the bill has been once amended after ansAver, under an 
 order of course, the plaintiff is not, except for the purpose of 
 rectifying clerical errors in names, dates, or sums,^ or of adding 
 parties,* entitled to another order of course, giving him leave to 
 amend his bill;® and this applies, notwithstanding that some of 
 the defendants may answer subsequently to the date of the amend- 
 ment,® and that those defendants who have already answered 
 consent to the application for the order.'' 
 
 For the purpose of determining whether an order of course to 
 amend can be obtained, an answer held to be insufficient, or the 
 insufficiency of which is admitted by the defendant, must be con- 
 sidered as no answer; and, consequently, an order to amend after 
 such insufficient answer, or after a demurrer or plea overruled,^ 
 is of course, and does not preclude the plaintiflE" from obtaining a 
 further order of course for the amendment of his bill, after a suffi- 
 cient answer has been put in.^ It must, however, be recollected 
 that an answer is deemed sufficient until it has been held in- 
 sufficient ; ^° and, further, that an amendment of the bill, made 
 previously to the answer being held insufficient, operates as an 
 admission of the sufficiency of the answer ; consequently, hoAvever 
 insufficient an answer may be in fact, an amendment of the bill 
 before it is held insufficient, will have the effect of preventing any 
 fu.ther order to amend from being obtained, as of course. 
 
 After exceptions for insufficiency have been submitted to, or 
 allowed, the plaintiff may obtain an order, as of course, on motion 
 or petition," that he may be at liberty to amend his bill, and 
 that the defendant may answer the amendments and exceptions 
 together.'^ If the bill has been already amended under such 
 
 11 For forms of motion paper and peti- 
 tion, sec Vol. III. 
 
 12 Miiyiie c. Hocbin, 1 Dick. 255; Adney 
 V. Kliioil, 1 Mad. 449; Dipper r. Durant, 
 3 Mer. 4C5; see l^nwick v. Wil.son, 6 
 John. Cli. 81; M'Mectien v. Story, 1 IJland, 
 184; IJanie.s r. Dickinson, Duv" Kq. 320; 
 Head w. Cons('(|ua, 4 Wasii. C". C. 174. In 
 Massachusetts, upon the coming in of the 
 answer, if the piaintilf sliall lind it neces- 
 sarj' to amend his hill, in order to meet 
 the case nia<le by the answer, lie may do so 
 by furnishing to the ilcfeniianl acertilied 
 CO])}' of the amendment; and the ])laintilf 
 may also, at the same time, except to the 
 detciidintV- answer to the hill, iis ori(.;iiially 
 filed. And in such ca-e, if the delenilaiit 
 shall siihmit to answer further, or shall 
 be orilerc'l to answer further, he shall 
 answer the amendmenls of the hill, and 
 
 Ch. VI. § 8. 
 
 '- Y — —^ 
 and termi- 
 nation are 
 included. 
 
 In what cases 
 order of 
 course to 
 amend 
 cannot be 
 obtained. 
 
 After insuffi- 
 cient answer. 
 
 Order to 
 amend, and 
 to answer 
 amendments 
 and excep- 
 tions 
 together. 
 
 1 Ord. V. 4 (5). 
 
 2 (Jrd. V 6. 
 
 3 Oul. IX. 9; ante, p. 410. 
 
 * yinir, pp. 294, 405, 406, 409. 
 1 Old. I.\. 13. 
 
 « Ailorri.y-'ieneral v. Nethcreoat, 2 M. 
 & C. 004; 1 .lur. tj.'j.'); |)uncombe v. Lewis, 
 10 Hcav. 273; Winthrop v. Murray, 7 
 Hare. 150. 
 
 7 liainhrigge v. Baddeley, 12 Beav. 152; 
 13 .lur. 997. 
 
 * Hut pending an appeal, nn order of 
 course, alter a d'-murrcr overruled, is ir- 
 r»-guhir. Ainslie t'. Sim->, 17 Heav. 174. 
 
 » Meiidizabel v. Ilullcit, 1 li. & M. 324; 
 Bird V. Muxth-r, lA. 325; Chase v. I)un- 
 hiim, 1 I'aig'-, 572. 
 
 »• He- SihUld r. I.awric, 2 K. & .1. 277, 
 n. ; Lnfonc r. Falkland Islandu Co., 2 K. 
 & J. 270.
 
 414 
 
 THE BILL. 
 
 Ch. VL §8. 
 
 Hut further 
 answer beforo 
 the order is 
 served, ren- 
 ders it 
 irrejiidar. 
 
 Seeoiid order 
 irregular, 
 though lirst 
 not acted on. 
 
 Orders of 
 course ob- 
 tained on 
 petition at 
 tiie Kolis, or 
 motion. 
 
 Special 
 orders, when 
 necessary, 
 obtained at 
 Chambers, on 
 summons. 
 
 Ser\'ice of 
 summons. 
 
 Costs. 
 
 Afiidavit in 
 support; 
 
 nn order, nnd exceptions arc taken to the ansAver to the amended 
 bill, and are submitted to or allowed, the plaintitt' may have a 
 tiirther or(U>r, as of course, to aniciid, :iiid that the defendant 
 may answer the amendments :uid exceptions togetlier.^ If, how- 
 ever, the defendant c:ui })ut in his fiulher answer, before he is 
 served Avith the order to answer the amendments and excei)tion3 
 together, the phiintilf will lose the benefit of such order, and the 
 defendant may move, on notice, to discharge it for irregularity.^ 
 Where the plaintift" did not amend his bill M'itliin the period 
 allowed for that purpose, it was held, that a second order of course 
 for leave to amend was irregular.'' 
 
 All the applications to amend hitherto considered are of course, 
 and require no notice. They are usually obtained on a petition 
 of course at the Rolls ; but they mtiy also be made on motion of 
 course, in the Court of the Judge to whose Court the cause is 
 attached.* 
 
 In all cases, other than those above pointed out in which an 
 order may be obtained as of course, the plaintiiF must, if he desires 
 to amend his bill after answer, make a special application to the 
 Judge for leave to do so. This apj^lication is made by summons 
 at Chambers.® The summons must be served on the solicitors for 
 all the defendants who have appeared to the bill. The Judge, at 
 the time of making the order, usually disposes of the costs of the 
 a})plication.^ 
 
 If this special application is made within the period of four 
 weeks from the time when the answer, or last of the answers, 
 required to be put in is to be deemed or is held to be sufficient, 
 it will not be granted Avithout an affidavit to the effi^ct : 1. That the 
 di-aft of the proposed amendments has been settled, approved, 
 and signed by counsel ; and, 2. That such amendment is not 
 intended for the purpose of delay or vexation, but because the 
 same is considered to be material for the case of the plaintiff.' 
 
 shall furnish a sufficient answer to the 
 bill as originally tiled at the same time. 
 Rule 22 of the ISIassachusetts Rules for 
 Chancery Pjactice; see Gerrish v. Black, 
 99 Mass. 315; anle, 410, note. Under the 
 general rule allowing the plaintiff to 
 amend, upon an insufficient answer, he 
 cannot amend ]>y leaving out the name of 
 the defendant, and thus discontinue the 
 suit against him, without costs. Chace v. 
 Dunham, 1 I'aige, 072; see Wilkinson v. 
 Belsher, 2 15ro. C. C. 272. 
 
 1 Mendizalicl v. Hullett, 1 R. & M. 324; 
 Bird V. Hustler, ib. 325. 
 
 2 Mayner. Hochin, 1 Dick. 255; Bethune 
 f. Batemaii, ib. 29G; Knox v. Symmonds, 
 1 Ves. J. 87, 88; Paty v. Simp-on, 2 Cox, 
 392; Partridge v. Haycratt, 11 Ves. 570, 
 578; Pariente .t). Bensusan, 13 Sim. 522; 
 
 7 Jur. 618; Hemming?;. Dingwall, 8 Beav. 
 102. For form of notice of motion, see 
 Vol. HI. 
 
 y Dolly V. Challin, 11 Beav. 61 ; and see 
 Watson V. Life, 1 M'N.-& G. 104; 13 Jur. 
 479. 
 
 4 Ord. VL. 5. And see post, Chap. 
 XXXV. § 1, Interlomtory Applications and 
 Orders. For forms of motion paper and 
 petition, see Vol. HL 
 
 5 15 & 16 Vic. c. 80, §§ 26, 27; Order 
 XXXV. 2. For form of summons, see 
 Vol. HL 
 
 See 23 Ord. Dec, 1833; Sand. Ord. 
 781; Beav. Ord. 51; Ord. XXXV. 61. 
 And see, as to costs of amendments gener- 
 ally, Ord. XL. 7, 8. 
 
 ■^ Ord. IX. 14; for form of affidavit, see 
 Vol. HI.
 
 AMENDING THE BILL. 
 
 415 
 
 Such affidavit must be made either by the plaintiff and his solicitor, 
 or by the solicitor alone, in case the plaintitt', from being abroad 
 or otherwise, is unable to join therein.^ The affidavit of the 
 solicitor's clerk is not sufficient, although the facts be within his 
 knowledge ; and where the facts are within his knowledge only, 
 the Court requires an affidavit from him, as well as the solicitor.'-^ 
 In the case of an information, the affidavit may be made by the. 
 solicitor of the infomiant,^ or by the solicitor of the relators only.* 
 So, also, if a corporation is plaintiff, an affidavit by the solicitor of 
 the corporation is sufficient.^ Where there are several co-plaintiffs, 
 only one need join in the affidavit ; and where the sole plaintiff is 
 an infant, the affidavit should be made by the next friend and the 
 solicitor. 
 
 After the plaintiff has filed or undertaken to file replication, or 
 after the expiration of four weeks fi-om the time when the ansv>er, 
 or the last of the answers required to be put in, is to be deemed, 
 or is held to be sufficient, a special order for leave to amend will 
 not be granted without a further affidavit showing that the matter 
 of the proj)osed amendment is material, and could not, with rea- 
 sonable diligence, have been sooner introduced into the bill.® 
 The affidavit must also show the nature of the proposed amend- 
 ments, in order that the Judge may decide as to their materiality;'' 
 and must state the facts, so as to enable the Judge to determine 
 whether reasonable diligence has been used.* 
 
 If the plaintift' amends his bill after answer by adding parties, 
 the period of four weeks will still be reckoned fi-om the time when 
 the answer, or the last of the answers required to be put in to the 
 original bill, is to be deemed, or is held to be sufficient.^ 
 
 1 Ord. IX. 16; Attorney-General v. Cor- 
 poratiun of London, 13 lieav. 313. As to 
 tro.ss-exaniin;\lion upon the aflidiivit, see 
 '.'iiiliolic l'uljli>hing Company v. Wyman, 
 
 11 \v. \i -.m, V. C.W. 
 
 2 CJirist'.s llohpital v. Grainger, 1 Phil. 
 634, 639; 10 .lur. 37. 
 
 '* A itornej -General v. Corporation of 
 London, ubi sup. 
 
 * Attorney-General v. Wakeman, 15 
 Sim. 35i<; ibjur. 5.09. 
 
 ' Chri-t's Hospital ?•. Grainger, ubi sup. 
 
 * Ord. IX. li'); Tliorn v. (jerniand, 4 
 .John. Ch 3ti3. It" the phiintift" files a rep- 
 lication to the an.swer after he is iipprised 
 of the iiece^sity of an amendment to his 
 bill, he precludes himself from makinj; 
 »uch anieridment. Vetniilyea (.'. Odell, 4 
 Paige, \'i\. 1 he application to amend 
 thiiuld he mafli- as soon as the necessity 
 for an ainendiiieiit is discovered. IJogers 
 f. I{o(zcr-, 1 Paige, 4'24; Pliitt v. .Squire, 
 6 Ciish. bh'i; (Jodiiigton v. Mott, 1 McCar- 
 ter(N. ,J.), 430; Hcwell v. I.ehring, 1 Mc- 
 Carter ( N. .1 ), 84 i,o ; for foi m of alhdavit, 
 8ee Vol. IIL 
 
 T Phillips V. Coding, 1 Hare, 40; 5 Jur. 
 1105; Attorney-General v. Fishmonsers' 
 Company, 4 il. & C. 1, 8; C. P. Coop. 
 385; Stuart v. Lloyd, 3 M'N. & G. 181; 
 16 Jur. 411; Odlett v. Preston, 3 M'N. & 
 G. 432, 438; 15 Jur. 'j75; Brown r. Kick- 
 etf.«, 2 John. Ch. 425. And see as' to 
 sulKciency of attidavit, Attorney-Cieiieral 
 V. Corporation of London, 13 beav. 313. 
 In Payne v Little, 14 .lur. 358, the -M. U. 
 held tliiit it was sutlicient if some of the 
 propDsed amendments were mentioned in 
 the atfidavit. Price v- Salusbury, 32 lieav. 
 446. 
 
 « Stuart V. Lloyd, and Collettv. Preston, 
 ubi sup. Although reasonable diligence 
 cannot be thus shown, the application 
 nuist be made to the judge by sunnnons. 
 As to the jjower of the Court, and .ludge 
 at ( 'hainbers, to eidarge ih'' timi! Ibr doing 
 any net, or taking anv proceeding, see (Jrd. 
 XXXVII. 17, 18; Potts v. Whitmore, 10 
 Peiiv. IVSJ. 
 
 '•' Hcrtolacci t>. Johnstone, 2 Hare, 632; 
 8 Jur. 751. 
 
 Ch. VI. § 8. 
 
 by whom to 
 be made. 
 
 Where fur- 
 ther affidavit 
 required. 
 
 No additional 
 time obtained 
 by adding 
 new parties 
 by amend- 
 ment.
 
 416 
 
 THE BILL. 
 
 fi..VI.§8. 
 
 but nol after 
 replication, 
 seinble ; 
 
 or notice of 
 motion to 
 dismiss. 
 
 After evi- 
 dence closed. 
 
 Amendment 
 by adding 
 parties alter 
 evidence 
 closed, with- 
 out with- 
 drawing 
 replication. 
 
 The rules laid down in the Ceneral Orders, as to obtaining 
 orders of course to ainend, do not appear to have been framed 
 whh a view to meet those eases where no iinswer is required, and 
 none is put in ; consequently, it has been held, that it was not 
 irregtdar to obtain an order of course to amend after the plaintirt"had 
 served a notice of motion for a decree, and the defendant had iiled 
 his affidavits in opposition to such motion.^ It would seem, that 
 if the motion had been set down for hearing, an order of course 
 woidtl have been irregtdar.'^ It is conceived that, after replication 
 has been filed, or the plaintift' has undertaken to file it, an order 
 of course to amend cannot be obtained, even where no answer has 
 been required or put in ; ^ and where a defendant, being entitled 
 to move, has served a notice of motion to dismiss for want of ])ros- 
 ecution, the plaintiff can in no case obtain an order of course to 
 amend ; ^ but the limits above pointed out appear to be the only- 
 restraints on the right of the plaintiff to obtain an order of course 
 to amend, where no answer is put in. 
 
 After the evidence is closed, the bill cannot be amended in any 
 other respect than by adding parties ; and no new allegation can 
 be introduced, or material fact put in issue, which was not so 
 before.^ And where a plaintiff, by a false suggestion that the 
 cause was at issue only, had obtained an order for liberty to amend 
 bis bill, by the addition of a prayer which had been accidentally 
 omitted, the order was discharged, ui)on the application of the 
 defendant at the opening of the cause, when it came on for hear- 
 ing.® 
 
 It is said ' that, after publication has passed (that is, after the 
 evidence is closed), there is no instance of a plaintiff obtaining an 
 order to amend, without withdrawing liis rei)lication. The ob- 
 servation, however, appears to be a mere dictum, and it certainly 
 cannot apply to cases where the amendment is merely by adding 
 parties. In Habergham v. Vincent^ Lord Thurlow intimated an 
 opinion, that after a decree had been made, passed, and entered, 
 witliout bringing before the Court a personal representative who 
 had become so after the bill was filed, he might be added by 
 amendment, and that a motion for the purpose would be regular, 
 provided it was only for the purpose of making him a witness to 
 
 1 Gill v. Ravner, 1 K. & J. 395; and see 
 anli', tip. 411, 412. 
 
 ^ ibid. Goodwin f. Goodwin, 3 Atk. 
 370. A motion tor a decree would for this 
 purpose, it is apprehended, be considered 
 II liearinfc "f tlie cause. 
 
 3 Urd. IX. lu. 
 
 4 Old. IX. 12; but if the notice be with- 
 drawn, matters will be remitted to their 
 former condition. Briggs f. lieale, 12 VV. 
 11. 934, V. C. W. 
 
 6 Goodwin v. Goodwin, 3 Atk. 370; 
 Milligan v. Mitchell, 1 M. & C 433, 442; 
 Thompson v. .ludge, 2 Drew. 414; Horton 
 V. Brocklehurst, 29 lieav. 503; Forbes «. 
 Stevens, 10 Jur. N. S. 861, V. C. VV.; but 
 see S. C 4 N. K. 386, L. J.J. 
 
 6 Harding v. Cox, 3 Atk. 583. 
 
 7 1 Atk. 61. 
 
 8 1 Ves. ,1. 68; see, however, 1 C. P. 
 Coop. t. Cott. 40, n.
 
 AMENDING THE BILL. 417 
 
 ■what was done in the Master's office ; but that, if there was any Ch. vi. § 8. 
 
 thing in the decree afiecting him in the way of an order to pay, "" y ' 
 
 such an order would be out of the power of the Court. 
 
 Where it is intended to amend a bill, after replication filed, by in what cases 
 the addition of new facts or charges, the proper course is to apply necessary to 
 for leave to withdraw the replication and amend; and it seems replication, 
 that an order of this description may be obtained, upon an appli- amendment. 
 cation in Chambers, supported by the affidavits required by the 
 General Orders above referred to,^ at any time before the closing 
 of the evidence."^ The order may be made without prejudice to 
 the evidence already gone into being used.^ 
 
 Sometimes the Court, at the hearing, will order a cause to stand Leave to 
 over, with liberty to the plaintiff to perfect his case by amend- ^™*|."^ ^* ^^ 
 ment, upon his paying the costs of the day.* Thus, as we have 
 seen, if, at the liearing, the recoril appears to be defective for want where defect 
 of proper parties, the Court will allow the cause to stand over, for °^ parties 
 
 ... ' apparent; 
 
 the plaintiff to amend his bill by adding parties ; ^ or, where the 
 parties are too numerous to be brought before the Court, to alter 
 the form of the bill, by making it a bill by the plaintiffs, on behalf 
 of themselves and all others of the same class.^ This practice is 
 not confined to amendment, by adding parties : it will be extended 
 to permit the plaintiff to show Avhy he cannot bring the necessary 
 parties before the Court." And if the record is defective by i-ea- where mis- 
 son of a misjoinder of plaintifis, the Court may direct such amend- J*^'"*^^*"' 
 ments as may be necessary, in order to grant such relief as any of 
 the plaintiffs may be entitled to, and at the hearing, before such 
 amendments are made, treat any of the plaintiffs as if he Avere a 
 defendant.* And so, as we have seen,^ the Court will sometimes, 
 at the liearing, permit the prayer of the bill to be amended, so as where prayer 
 to make it more consistent Avith the case made by the plaintiff with"cas^"^ 
 than the one he has already introduced.^" And where a j)laintifi' made by bill; 
 had amended his bill, and by accident had omitted to insert in the or omitted by 
 
 •' accident. 
 
 1 For form of summons, see Vol. III. 9 Ante, p. 3S3. 
 
 '■^ llorton V. lirockleliurst, 2'J Beav. 503; W Clifton v Haig, 4 Desaus. 330, cited 
 
 Chainpneys v. iiuchan, 3 Drew. 5; see post. Hi), in note; Lyon v. Tallmadge, 1 
 
 Thorn f.Ui-nnand, 4. John. Ch.3C3; Story John. Ch 184. If a toriinil chargeof tniud 
 
 ¥j\. l'\. § «b7; Biai.sdell v. Stevens, 1« Vt. were necessiiry, hut hail been omitted, the 
 
 17'J; IJrown v. Kicketts, 2 John. Ch. 425. C"urt would grant have to amend even at 
 
 3 liicarlo V. Cooper, cited Seton, 1253. the hearing. Wamburzee v. Kennedy, 4 
 
 * This may be done, when the cause is J)e>aus. 4f-0. But after a defendant has 
 
 heard on motion lor decree. Thomas v. put in his answer on oath, the ijlaintilF 
 
 JWriiard, 7 W. ]l. 271, V. C. K. ciinnot amend his bill and inclu.le in such 
 
 '' /1h^^ pp. 2'.)0, 2'Jl; and see Leyland amendment a waiver of the answer of the 
 
 V. Leyland, 10 W. li. 149, V. C. K ; Story defendant on ontli, so as to deprive him of 
 
 r.q. ri. § b'jl. the benefit of his answer to the amend- 
 
 Ante, p. 244; and see Gwatkin v. ments, so tiir us it may be responsive to 
 
 Campbell, 1 Jur. N S. 131, V. C. W. the bill. IJurras v. looker, 4 l^aige, 227; 
 
 ' Milligan V. Mitchell, 1 M. & C. 511, IJingham v. Veomans, 10Cush.5b; Chace 
 
 615; (iib.son v. Ingo, 5 Mare, 150. v. Holmes, 2 (;ray, 431; Hule S, of the 
 
 » 16 & in Vie c. b(!, § 4'J; ante, p. 303; Mass. Kules for Cliuncery Practice, 
 and nee Lee v. Blackstone, Sctou, 1113, 
 No. 2. 
 
 VOL. I. 27
 
 418 
 
 THE BILL. 
 
 Ch. YT. § 8. 
 
 Not fjencrally 
 Allowed, 
 except as to 
 jMirlics : 
 
 where matter 
 not put in 
 issue with 
 sufficient 
 'certainty: 
 
 where 
 improper 
 submissions 
 on behalf of 
 infants. 
 
 where infant 
 heir-at-law 
 made co- 
 plaintiff. 
 
 At the 
 
 hearing of an 
 appeal. 
 
 amended bill the prayer for relief, altlmngh it was in the original 
 bill, the Court put otf the cause, in ordt'r that the ])laintitr might 
 have an opportunity to re-amend his bill by inserting it.-' 
 
 Usually, amendments are allowed at the hearing only for the 
 purpose of making the record complete as to parties, or adapting 
 the praver to the case made by the bill.^ Upon the question of al- 
 lowing amendments for other purposes at the hearing, Sir George 
 Turner L. J., in the case of Lord DarnUy v. The London, 
 Chatham, and Dover Railway Company,^ observed : " It is impos- 
 sible to lay down any general rule ; all depends upon the cir- 
 cumstances ; but, s])eaking generally, I should say that leave 
 should be given when the matters proposed to be introduced are 
 connected with the matters in issue, but should be refused when it 
 is not so." * Thus, where a matter has not been put in issue, 
 with suthcient precision, the Court has, upon hearing the cause, 
 given the plaintiff liberty to amend the bill, for the purpose of 
 making the necessary alteration.^ 
 
 Wherever improper submissions have been made in a bill on 
 behalf of infants, the Court will, at the hearing, order, that the 
 bill shall be amended, by striking out the submission.*^ Upon 
 the same principle, where an infant heir-at-law had been made a 
 co-plaintiff, Lord Redesdale ordered the cause to stand over, with 
 liberty to the plaintiff to amend his bill, by making the heir-at- 
 law a defendant ; '' and where a matter has not been put, by the 
 bill, properly in issue, to the prejudice of an infant, the Court has 
 generally ordered the bill to be amended.*^ 
 
 The Court has even gone to the extent of allowing the plaintiffs, 
 at the hearing of an appeal, to amend their bill, by converting it 
 from a bill into an information and bill, or information only.^ 
 
 1 Harding v. Cox, 3 Atk. 583 ; Story Eq. 
 PI. § 8b7. 
 
 2 Watts V. Hyde, 2 Phil. 406, 411; 11 
 Jur. 'J79; and see Bellnmy v. Sabine, 2 
 Phil. 425, 447. 
 
 3 9 Jur. N. S. 4.52, 453; 11 W. R. 388, 
 391; 1 De G., J. & S. 204, 219, 220; and 
 see Gossop v. Wright, 9 Jur. N. S. 692; 
 11 W. K. 032, V. C. K. 
 
 < In Walker v. Armstrong, 8 De G., M. 
 & G. 531; 2 Jur. N. S. 959, however, the 
 L. JJ. allowed a bill to be amended at the 
 bearing, by rai-ing an entirely new case; 
 viz., tlie rectification of a deed. 
 
 6 Ld. Ked. 320; Filkiii v Hill, 4 Bro. P. 
 C. ed. Toml. 040; win. Hill v. Eyre, 1 De 
 G., J. & S. 217, 21H, 220; and see observa- 
 tions of L. J. Turner on this case, in Lord 
 Darnley v. London, Cbatham, and Dover 
 Railway Comjjany, 9 Jur. N. S. 452; 11 
 \V. K. 391; see also Watts v. Lord Kglin- 
 ton, 1 C. P. Coop. t. Cott. 423; Knux v. 
 Gye, 9 Jur. N. S. 1277, V. C. W.; 12 VV. 
 R. 1125, L. JJ.; Forbes v. Stevens, 10 Jur. 
 N. S. 861, V. C. W.; 4 N. K. 366, L. JJ.; 
 
 Firth V. Kidley, ib. 415, L. JJ. ; Hume v. 
 Pocock, L. li. 1 Eq. 662; 12 Jur. N. S. 
 223, V. C. S.; see Conalley v. Peck,3 Cal. 
 75; McDougald v. Wiiliford, 14 Geo. 665. 
 For form of orders to amend at the hearing, 
 see Seton, 1113, Nos. 1, 2; and see ib. 
 1114-1116. 
 
 6 Scrle V. St. Eloy, 2 P. Wms. 386, ante, 
 p. 77. 
 
 7 Plunket V. Joice, 2 Sch. & Lef. 159. 
 
 8 Ld. Ked. 327. 
 
 9 President of St. Mary Magdalen Col- 
 lege V. Sibtliorp, 1 Kuss. 154; aide, p. 12. 
 Leave will be granted to amend in the 
 Court of Appeals, if it there be found 
 necessary, in order to let in the whole merits 
 of the case. Lenoirti. Winn, 4 Desaus. 65; 
 Kodtrers v. Jones, 1 M'Cord, Ch. 226; 
 Jl'Kim t'. Odom, 3 Bland, 407 ; Drummond 
 V. Wa^ruder, 9 Crancli, 122; I^ewis v Dar- 
 ling, 16 How. U. S. A pi-tition in Chan- 
 cery in Connecticut can be amemied after 
 the facts in the case have been found by a 
 committee. Camp v. Waring, 25 Cona. 
 520.
 
 AMEXDIXG THE BILL. 
 
 419 
 
 But, although the Court will sometimes, at the hearing, allow 
 the cause to stand over, with liberty for the plaintiflf to amend his 
 bill, the plaintifi" ought to be careful, before the cause comes on, to 
 have the record in a proper state, so as to enable the Court to 
 make a complete decree : for the plaintiif himself cannot, when the 
 cause comes on for hearing (unless under particular circumstances, 
 or w4th the consent of the defendant), obtain leave to amend his 
 bill, even upon the usual terms of paying the costs of the day; ^ 
 and if a decree were to be obtained upon pleadings which are 
 defective in a material point, it would afterwards be Uable to be 
 set aside for error.^ 
 
 It frequently happens that, upon the argument of a demurrer, 
 the Court, where the ground for demurring can be removed by 
 amendment, has, in order to avoid putting the plaintiif to the 
 expense of filing a new bill, instead of deciding upon the de- 
 murrer, given the plaintiff liberty to amend his bill, on payment 
 of the costs incurred by the defendant ; " because, after a demurrer 
 allowed to the whole bill, the bill is so completely out of Coiu't 
 that no -amendment can take place : ^ and where the demurrer 
 is for want of parties, the Court, in general, annexes to the order 
 allowing the demurrer a direction that the plaintiff shall be at 
 liberty to amend his bill by adding parties thereto.^ Where, pre- 
 viously to the filing of a general demurrer, a notice of motion for 
 an injunction had been served, leave was given, on allowing the 
 demurrer, to amend within ten days, without prejudice to the 
 notice of motion.® 
 
 The Court, in allowing a plea, frequently gives leave to amend;'' 
 
 Ch. VI. § 8. 
 
 1 Leave may be grantei to amend the 
 prayer of the bill utter hearinj;. Clitton v. 
 ilaifC, 4 Desaus. 330. It' a lornial ch;irge 
 of fraud were necessary, but had been 
 omitted, the Court would give leave to 
 nrnetid even at the hearing. Waniburzee 
 V. Keniiedv, 4 Desaus. 480. 
 
 2 Wyatt's P. K. 299. As to obtaining 
 leave t') nmend at the heiirini; of an inter- 
 locutorv application, i-ee Harnett v. Noble, 
 
 1 .). & W. a-.i7; Fare v. Clegg, 7 Jur. N S. 
 1130; 9 W. K. 216, AI. R. 
 
 8 See Marshall v. Love'ass, Cam. & Nor. 
 239, 2<j4; lieii/.ein v. Lovelass, Cam. & 
 Nor. 520; Hollid;iy ?;. IJior.ion, 12(;eo. 417. 
 After a spei-iul demurrer to a bill, the 
 plainiiir may have leave to amend, on 
 paymi-nt ot costH. Ko-e v. King, 4 lien. 
 & ,\lunf 47.^. So where a mere formal 
 objection to a bill wa.s made \)y demurrer 
 ore Unut, the phiintiff was permitteil to 
 amend. (Jarlick v. .-itroiig, 3 I'aige, 440. 
 So also npi)ii the allowiince of a deiriurrer 
 for w.mt of equity, upon the ground of a 
 fnriniil defect in" the bill. M'Klwain v. 
 Wilis, 3 l'nige,60'); Huntw. Rousmanii-re, 
 
 2 ,Ma,son, 342; lieauchainp v. (Jibbs, 1 
 Bibb, 483. 
 
 By Rule 21 of Chancery Practice in Mas- 
 sachusetts, "if the defendant shall demur 
 to the bill for want of parties, or otiier 
 defect which does not go to the equity of 
 the whole bill, the plaintiff may amend, at 
 any time before the demurrer is set down 
 for argument, or within fourteen diiys alter 
 the demurrer is tiled, and notice thereof 
 given to him, upon the payment of a term 
 fee." 
 
 * Lord Coningsby v. Jekvll, 2 P. Wms. 
 300; 2 Kq. Ca. Ab. 59, pi. 3; Smith v. 
 Barnes, 1 Dick. 67 ; .see also Mason v. Lake, 
 2 Jiro. P. (J. ed. I'otnl. 495, 497; Bre^sen- 
 den V. Decreets, 2 Clia. Ca. 197; Lloyd v. 
 l>oaring, 6 Ves. 773, 779. A different rule 
 pn^vails in Massachusetts. Merchants' 
 Bank of Newburj-port v. Stevenson, 7 
 Allen, 491; see /-)us<, note to section "of 
 the effect of allowing demurrers." 
 
 ^ As to the time allowed to amend, 
 where a demurrer or plea to the whole or 
 part of a bill is not .set down, see Ord. XIV. 
 14, 15, 17; unle, p. 373. 
 
 « Hawlings I). Lambert, 1 J. & 11. 458; 
 Harding v. Tingev, 10 Jur. N. S. b72; 12 
 W. \i. 703, V. C. K. 
 
 7 Ld. Ked. 281; Doyle v. Muntz, 5 Bare, 
 
 Leave to 
 amend; upon 
 argument of 
 demurrer; 
 
 where demur- 
 rer for want 
 of parties. 
 
 Leave to 
 amend, 
 alter plea is 
 allowed ;
 
 420 
 
 THE BILL. 
 
 Cii. VI. 5 8. 
 
 V— — Y 
 
 or overruled. 
 
 Order to 
 amend, pend- 
 ing judgment 
 of pleii, 
 irretfiilar. 
 
 Where plea 
 replied to, 
 order to 
 withdraw 
 replication 
 and amend 
 miLst be on 
 special 
 application. 
 
 Time allowed 
 to amend 
 after order 
 obtained. 
 
 it must not, liowevcr, be nudorstood that this is by any means a 
 matter of course, even "where the plea covers only part of the bill.^ 
 Leave to amend has also been given where a plea was overruled, 
 Avith leave to j)lead de novo.'^ After tlie allowance of a })lea, an 
 order for leave to amend the bill is special ; and, on the applica- 
 tion for it, the j)laintitf must sjtecify the amendment he intends to 
 make.^ 
 
 It may be observed in this place, that where a plea for want ot 
 parties was put in to a bill of discovery, which had been filed in 
 aid of an ejectment at law, on the ground that the trustees in 
 whom the legal estate was vested were not co-plaintiifs with the 
 cestui que trusts, and upon argument a case was directed for the 
 opinion of a Court of Law, but the parties not being able to agree 
 \ipon the case, the plaintiiFs moved for leave to amend the bill by 
 adding the trustees as co-plaintifis, Lord Eldon refused the motion, 
 as being irregular while the judgment on the plea was pending.* 
 Afterwards, however, \ipon the plaintiffs moving that the Vice- 
 Chancellor's order, directing the case to be stated, might be dis- 
 charged, and that the plaintiffs might be at liberty to amend their 
 bill, by the introduction of facts to show that the legal estate was 
 in the trustees, and that there was a count in the declaration in 
 ejectment on the demise of such trustees, the Lord Chancellor 
 made such an order, but upon condition of the plaintiffs consenting 
 to the plea being allowed.^ 
 
 It seems that, where a plea has been replied to, the plaintiff 
 may, in some cases, have leave to withdraw his replication and 
 amend, but that such leave is not a matter of course, and can only 
 be obtained on a special application ; ® and, therefore, where an 
 order to withdraw replication to a plea, and to amend, was ob- 
 tained on a motion of course, it was discharged for irregularity, 
 and the amended bill was ordered to be taken off the file.'' 
 
 After the plaintiff has obtained an order to amend, he has, in 
 all cases in which no other time is limited by such order, fourteen 
 days after the date of the order, within which he may amend his 
 
 509, 518; 10 Jur. 914; Tudway v. Jones, 
 1 K. & J. 691 ; and see Barnett v. Gralton, 
 8 Sim. 72. Leiive to amend given after 
 allowance, without costs, of plea of defend- 
 ant's bankruptcy. Jones v. Biniis, 3.3 
 lieav. 3«2; 10 Jur. N. S. 119. 
 
 1 Taylor v. Shaw, 2 S. & S. 12; Neck 
 V. Gains, 1 De G. & S. 223; 11 Jur. 763; 
 see also Ord. XIV. 10; aiud post, Chsip. XV. 
 § 5, Pleas. 
 
 2 Chadwick v. Broadwood, 3 Beav. 316 ; 
 5 Jur. 359. 
 
 s Taylor v. Shaw, 2 S. & S. 12 ; Neck 
 V. Gains, 1 De G. & S. 223; 11 Jur. 763. 
 
 * Lord Cholmondeley v. Lord Clinton, 2 
 Mer. 71. 
 6 lb. 74. 
 
 6 Carleton v. L'Estrange, T. & R. 23; 
 Barnett v. Grafton, 8 Sim. 72; and see 
 Ord. XIV. 18. 
 
 7 Carleton v. L'Estrange, ubi sup. It has 
 been held that, as Kule 29 of tlie Circuit 
 Court of the United States makes no pro- 
 vision for amending a bill after issue joined 
 and depositions taken, it is to be construed 
 as prohibiting it, at least except under 
 very special circumstances. Ross v. Car- 
 penter, 6 McLean, 382.
 
 AMENDING THE BILL. 421 
 
 bill.^ If he does not amend mtliin the time limited, or within Ch. VI. § 8. 
 the fourteen days, the order becomes void, and the cause, as to 
 dismissal, stands in the same situation as if such order had not 
 been made.^ The fact of the plaintiff not making his amend- 
 ment within this period will not, however, preclude him from 
 obtaining another similar order of course to amend, upon the 
 same terras, if the original order was obtained before any answer 
 was put in.' 
 
 If tl\e plaintiff is unable to amend the bill within the time lim- Enlarging 
 ited by the order to amend, or, if no time is thereby limited, with- ^™y^° 
 in the fourteen days, he should apply by summons, before the time 
 has expired, for an enlargement of the time.* The summons must 
 be served on all the defendants who have appeared to the bill ; 
 and the order is drawn up at Chambers,^ 
 
 In a proper case, an order may also be obtained, on a summons or to obtain 
 served in like manner,^ to enlarge the time allowed by the General j^j^e^^^'^ ^ 
 Orders of the Court, to obtain an order to amend.'' The order is 
 dra-WTi up at Chambers.* The usual course, however, is to obtain 
 the common order within due time, and then to apply, before the 
 fourteen days have exj)ired, for an extension of time to amend 
 under it. 
 
 In computing the time for amending tlie bill, the times of vaca- where order 
 tion are not to be reckoned : ^ if, therefore, the time would expire gj'j("I"|"jfmit 
 in vacation, and it is intended to deprive the plaintiff of this ad- a time, 
 vantage, the order should be so framed as to direct the amend- 
 ment to be made on or before some specified day. 
 
 When an order to amend has been irregularly made, the defend- in-pguiar 
 ant may move on notice to discharge it ; ^° it will, however, be aJ'I^.^Krvalid 
 considered as valid until it h;is been discharged : ^^ and the irregu- till dis 
 larity will be waived if the defendant accept costs under it.^'-^ 
 
 1 Ord. IX. 17. Tliis order applies to all Baddeley, 12 Beav. 152, 154; 13 Jur. 997. 
 orders to amend, wiietiier of course or For form of summons, see Vol. III. 
 special; .see Criijland v. Lonl de Mauley, 2 ^ For fi;rni of order, see Vol. III. 
 
 De G. & S. 500; 12 Jur. 1015; Armisteiid 6 Jbid. 
 
 V. Durham, 11 lieav. 42«; 13 Jur. 330; T Qrd. XXXVII. 17, 18; see Potts v. 
 
 Bainbri^JKC ». Baddeley, 12 Beav. 1.52; 13 Whitmore, 10 Beiiv. 177, 179. 
 
 Jur. 997. These ca.ses were decided on ** For a form, see Vol. III. 
 
 the former orders; in the existing orders, » Ord. XXXVII. 13 (1). For times of 
 
 the woriH hiive hficn somewhat altered, vacation, see ante, p. 412 
 
 apparently to meet this (|uestion. For a i" I'otts v. Whitmore, 10 Beav. 177; 
 
 ciif-e on the present orders, see Tampier v. Ilorslev v- Fawc('tt, ih. 191 ; Peile f. Stod- 
 
 Injfle, 1 N. U. 169, V. ('. K. dart, 11 i/t. 591; Bainbrigge r. Baddeley, 
 
 2 Ord. IX. 24. 12 i.i. 152; Bennett v. Iloneywood, 1 W. 
 8 Nicholson r. I'eile, 2 Beav. 497; see, li. 490, V. C. K. For form of notice of 
 
 however, where the jilaintiff had excepted, motion, see \'ol. III. 
 
 Dolly r.Chaliin, II BeiivOl. The service 'i Blake v. Blake. 7 Beav. 514; Chuck 
 
 of nn order to ani-nd does nfit prevent the v. Cremer, 2 I'hil. 113; C. P. Coop. t. Cott. 
 
 defendant from tiling his answer. Mack- 338. 
 
 erell r. Fisher. 14 Sim. (;04 ; 9 Jur. 574. 12 Tarleton v. Dyer, 1 R. & M. 1, G; 
 
 * Ord. IX. 17, 21; Ord. XXXIII. 11; King of Sjjain v. Ilullett, ib. 7, n.; see 
 
 Dolly p. Chnilin, u4» »M/i. ; Bu nbrigge v. also K<!n(lall v. Beckett, 1 Russ. 152; 
 
 Bramslon v. Carter, 2 Sim. 468. 
 
 charged; 
 but irregu- 
 larity may be 
 waived.
 
 422 
 
 THE BILL. 
 
 (^11. VI. ^ s. 
 
 Sorvioc of 
 oixler. 
 
 When reprint 
 of bill will bo 
 nocespiirv. 
 
 Amended bill 
 must be 
 signed by 
 counsel; 
 and an 
 amended 
 information 
 by Attoniey- 
 Cleneral also, 
 on certificate 
 of counsel. 
 Reprint of 
 information. 
 
 Amend- 
 ments: how 
 made; 
 
 An order to amend, whether of course or special, should bo 
 served, Avithout delay, on such of the defendants as have appeared 
 to the hill, either in person or ])y their solicitors: as the order 
 only operates from the time of service.^ 
 
 If the amendments extend, in any one place, to 180 words, or 
 two folios,^ or if the bill has been so often amended that the 
 amendment to be inserted cannot be interlined on the record, or 
 is so considerable as to blot or deface it, a reprint of the bill will 
 be necessary.^ 
 
 The draft of the amended bill is settled and signed by counsel ;* 
 and in addition to the signature of counsel, the draft of an amend- 
 ed information, or the reprint, if there be one, must be signed by 
 the Attorney-General : ^ otherwise, the defendant may move that 
 it be taken off the file.® Before signing the amended information, 
 the Attorney-General requires a certificate from the counsel who 
 settled it that the amendments are proper for his sanction.'' The 
 same rules, as regards rejn-inting, apply to informations as to bills. 
 
 If a re])rint of the bill is not required, the Record and Writ 
 Clerk will insert the amendments in the record, on the draft 
 amended bill, signed by counsel, being left with him, together 
 with the order directing the amendments, and a praecipe;^ and the 
 draft and order will be afterwards returned on application. Where 
 a reprint is necessary, the amended bill must be printed and filed 
 
 1 Price V. Webb, 2 Hare, 515. 
 
 2 A folio for tliis purpose is ninety 
 •words. Braithwaite's Pr. 305, n. 
 
 8 Ord. IX. 18; Stone v. Davies, 3De G., 
 M. & G. 240; 17 Jur. 6S5. A bill cannot 
 be amended by parth' printed and jiartly 
 written wlterations. Niivlor v. Wright, 7 
 De G., M. & G. 403; 3 .Jur. N. S. 95. As 
 lO bills filed before 2d November, 1852, 
 the old prnctice as to amending them con- 
 tinues. Ord. IX. 23. Reprint required 
 ■where the amendments, although under 
 two folios in any one place, would have 
 rendered the bill very ditficult to read; the 
 Clerks of Records and Writs have a dis- 
 cretion. Jolin V. Lloyd; L. R. 1 Ch. Ap. 
 64; 11 Jur. N. S 898. In Pierce v. West, 
 3 Wash. C. C 354, it is held, that the 
 amendment should be by a separate bill, 
 and not by interlining the original bill. 
 So in Walsh v. Smyth, 3 Bland, 9, 21. 
 This, however, is not the ))raetice in all 
 cases. See Luce v. Graham, 4 .lohn. Ch. 
 170; Willis v. Evans, 2 B & 15. 225; 
 State Bank v. Reeder, Hal.st. N. J. Dig. 
 172. Hy these cases it appears that if 
 there be not much new matter to be intro- 
 duced, it is to be done by interpolation; 
 but if much, it is to be done on another 
 engrossment, to be annexed to the bill, in 
 order to preserve tiie record from being 
 defaced. The plaintiff ma)-, however, set 
 forth in the amended bill all the charges 
 of the original Ijill. Filzpatrick v. Power, 
 1 Hogan, 24 ; but see Walsh v. Smyth, 3 
 
 Bland, 9, 21 ; Luce v. Graham, 4 John. 
 Ch. 170; Willis v. Evans, 2 B. & B. 
 225. In Walsh v. fimyth, ubi sup-a, it was 
 held, that tiie original bill should be re- 
 cited in the amended bill no further than 
 is necessary to introduce the amendments, 
 so as to avoid impertinency. See also 
 Luce V. Graham, uhi supra ; Bennington 
 Iron Co. ?,'. Campbell, 2 Paige, 159; Pierce 
 V. West, 3 Wasli. C. C. 354. When amend- 
 ments are made to a bill, if the plaintiff 
 file or serve an entire new bill, incorporat- 
 ing therein as well the original matter as 
 the amendments, he must distinctly desig- 
 nate the amendments in the new bill. 
 Bennington Iron Co. v. Campbell, 2 Paige, 
 159; see also Hunt v. Holland, 3 Paige, 
 82; Luce v. Graham, 4 John. Ch. 170. 
 Where, after a hearing, a bill was amended, 
 in order to bring in a new party, but no 
 i>ew fact was stated, it was held uiuieces- 
 sary to serve process anew upon the de- 
 fendant. Longworth v. Taylor, 1 McLean, 
 514. 
 
 4 Ante, p. 312. Ord. VIII. 1, 2; see 
 Kirkley v. Burton, 5 Mad. 378. The 
 amendments should be carefully distin- 
 guished. Braithwaite's Pr. 304. 
 
 5 Braithwaite's Pr. 25, 309. 
 
 6 Attorney-General v. Fellows, 1 J. & 
 W. 254 ; for forms of notice of motion, see 
 Vol. IH. 
 
 "^ For form of certificate, see Vol. III. 
 8 For a form, see Vol. III. The fee is 
 105. Braithwaite's Pr. 305.
 
 AMENDING THE BILL. 
 
 423 
 
 in the manner before explained in treating of original bills : ^ and 
 a like fee is payable on filing the amended bill.^ The order to 
 amend must be produced at the time the reprint is filed. 
 
 The record of the bill, when amended, is marked with the date 
 of the order, and the day on which the amendment is made ; ^ and 
 an entry of the amendment, and of the date of making it, and of 
 the order, is made in the Record and Writ Clerk's Book ; and the 
 amended bill is deemed to be filed at and from the date of making 
 the amendment.* 
 
 The like course is pursued, where the bill requires to be re- 
 amended.^ 
 
 Where the order to amend is made upon pajTnent of costs, or 
 where, by the course of the Court, fixed costs are payable on 
 amendment,® such costs should be paid or tendered before any 
 further proceedings are had : '' otherwise, the defendant may apply 
 to the Court to stay such proceedings until the plaintifli" has ful- 
 filled the condition, by making the required papnent.^ The sum 
 of 20s. being frequently veiy inadequate to remunerate the defend- 
 ant for the expense incurred by the plaintiff amending his bill, it 
 has been provided by the General Orders of the Court, that where 
 a plaintift' is directed to pay to the defendant the costs of the suit, 
 the costs occasioned to a defendant by any amendment of the bill, 
 shall be deemed to be part of such defendant's costs in the cause 
 (except as to any amendment Avhich may have been made by 
 special leave of the Court, or which shall apjK-ar to have been 
 rendered necessary by the default of such defendant) ; but there 
 shall be deducted from such costs any sum which may have been 
 paid by the plaintiff, according to the course of the Court, at the 
 time of any amendment;^ and that where, upon taxation, a })lain- 
 tiff, who has obtained a decree with costs, is not allowed the costs 
 of any amendment of the bill upon the ground of its having been 
 unnecessaiily made, the defendant's costs, occasioned by such 
 amendment, shall be taxed, and the amount thereof deducted from 
 the costs to be ])aid by the defendant to the plaintifi?'^ 
 
 If the jtlaintitf amends his ])ilj after he has obtained an injunc- 
 tion, it is usual, although not indispensable, for the order giving 
 
 Ch. VL § 8. 
 
 how recorded. 
 
 Re-amend- 
 ments. 
 
 Costs payable 
 on amending: 
 
 Defendant's 
 costs are costs 
 in the cause, 
 where plain- 
 tiff fails, 
 
 unless bill 
 amended by 
 special leave, 
 or through 
 defendant's 
 default; 
 
 and may be 
 deducted 
 from plain- 
 tiff's costs, 
 where he suc- 
 ceeds, and 
 ainiiidincnt 
 unnecessar)'. 
 
 Amend- 
 ment: after 
 injunction; 
 
 > Ante, p. 396 el geij. ; 15 & 16 Vic. c. 86, 
 §K. 
 
 2 Re^riii. to Ord. Sched. IV.; IJniith- 
 wailtt's I'r. SO."). 
 
 * Tiim: Amended — day of ,186 — , 
 
 by oriler dated day of , 186 — . 
 
 * Ord. IX. lil. 
 
 * A I lainlitl' who ha.4 amended his bill 
 by Rpcrial h'livc mny ol)lain an order of 
 c<iiir-<' to rc-ninend upon the answer to the 
 amciidi'd hill coming in. Dunn v. Ferrior, 
 L. K. 8 i:^. 248. 
 
 8 Ante, p. 411. 
 
 T liut see Thomas v. Tavlor, 14 W. R. 
 493, L. JJ. 
 
 « IJreeze v. English, 2 Hare, 638. The 
 costs of ademurrtT |irc|)arcd, hut not filed, 
 at the time of ainendinf; the hill, will he 
 costs it) the cause, haiuhrif^ge v. Moss, 3 
 K. & .(. 02; 3 .lur. N. S. 107. The cosis 
 are usually paid iit the time the order to 
 amend is -erved. 
 
 Ord. .\l.. 7. 
 1» Ord. XL. 8.
 
 424 
 
 THE BILL. 
 
 Cii. VI. § S. 
 
 after ne exeat 
 reyno ; 
 
 after iindor- 
 takiiii; liv 
 del'cudaiit; 
 
 iir after notice 
 of motion for 
 injunction, or 
 receiver; 
 
 liiin liborty to amend, to be exi)iesso(l to lie "without prejudice to 
 the injunction;" and the order of course to amend maybe ob- 
 tained in this tbnn.* AVhere, however, an injunction had been 
 obtained until answer or further order, in a suit l)y a sok> ])hiintilf, 
 it was hehl that the injunction Avas dissolved by adding a co- 
 plaintitt", under an order to amend in which those words were not 
 inserted.- 
 
 A writ of ne exeat regno is not lost by a subsequent amendment 
 of the bill ; it is, therefore, unnecessary that the order should be 
 expressed to be without prejudice to the writ.^ 
 
 Where a motion for an injunction had been, by arrangement, 
 turned into a motion for decree, times being fixed for the filing of 
 affidavits on both sides, and the defendant undertaking not to do 
 certain specified acts until the hearing, it was held, that the plain- 
 titf, by amending his bill after the time fixed for filing his affidavits, 
 broke the terms of the arrangement, and the defendant was ac- 
 cordingly discharged from his undertaking.* 
 
 If tiie ])laintifF amends his bill after he has given a notice of a 
 motion for an injunction,^ or for a receiver," he thereby waives 
 the notice ; and must pay the defendant's costs of the motion.'' 
 
 bill, but by introducing a supplemental 
 statement. Virplaiick v. Merct. Ins. Co , 
 1 Edw. Ch. 46; Carey v. Smith, 11 (ieo. 
 539; Rogers v. Rosers, 1 Paige, 424; Whit- 
 marsh V. Cnmpbell, 2 Paige, 67. An ap- 
 plication to strike an allegation from a 
 sworn bill, or to make alterations in it, 
 should be accompanied with affidavits to 
 show how the mistake occurred. North 
 River Bank v. Rogers, 8 Paige, 648; Whit- 
 marsh i? Cam|)hell, 1 Paige, 67; Everett v. 
 Winn, 1 Sm. & M. 67. And the truth of 
 the matter proposed as an amendment 
 should be sworn to in addition to Va^ jurat 
 upon the petition for leave to amend. 
 Rogers v. De Forest, 3 Edw. Ch. 171. But 
 no alteration should be made in the orig- 
 inal bill on file, but the amended bill must 
 be engrossed anew, and annexed to the 
 original. Layton v. Ivans, 1 Green Ch. 
 387. 
 
 2 Attorney-General v. Marsh, 16 Sim. 
 572; 13 ,Jur. 317; and see Sharp v. Ash- 
 ton, 3 V. & B. 144; King v. Turner, 6 
 Mad. 255; and post, Chap. XXXVI. § 2, 
 Injunctions. 
 
 '3 Grant v. Grani, 5 Russ. 189; see post, 
 Chap. XXXVIII. § 4, Ne exeat re/jno. 
 
 i Clark V. Clarke, 13 W. R. 133, V. C. 
 W. 
 
 6 Martin v. Fu.st, 8 Sim. 199; Gouth- 
 waite j;. Rippoti, 1 Beav. 54; Monypenny 
 V. , 1 VV. R. 99, V. C. K. 
 
 Smith V. Dixon, 12 W. R. 934, V. C S. 
 
 7 Monypenny v. — , ubi sup. ; Lon- 
 
 1 Mason r. IMurray, 2 Dick. 536; W^ar- 
 burton v. London and Blackwall Railway 
 Company, 2 Beav. 253; Woodroffe v. 
 Daniel, 9 Sim. 410; see Kennedy v Lewis, 
 14 Jur. 166; Seton, 873, V. C K. B. ; see 
 also Ferrand v. Hamer, 4 M. & C. 143, 145; 
 3 Jur. 236 ; Pratt v. Archer, 1 S. & S. 433; 
 Pickerings. Hanson, 2 Sim. 48S; Renwick 
 V. Wilson, 6 John. Ch. 81; Avers v. Val- 
 lentine, 2 Edw. Ch. 451. Aii injunction 
 bid will not be amended unless the pro- 
 posed amendments are distinctly stated to 
 the Court, and verified by the oath of the 
 plaintiff; nor unless a sufficient excuse 
 is rendt^rcd for not incorporating them 
 in the original hill. Rogers v. Rogers, 1 
 Paige, 424; Carey v. Smith, 11 Geo. 539; 
 see West v. Coke, 1 Murphy, 191. In 
 JlassachuseUs, '■ no amendments shall be 
 allowed, as of course, to a bill which has 
 been sworn to by the party." Rule 20, of 
 the Rules for Clmncery Practice. And so, 
 generally, where the" bill is upon oath, 
 there is "greater caution exercised in refer- 
 ence to amendments. Cock v. Evans, 9 
 Yerger, 267 ; Verplanck v. Merct. Ins. Co., 
 
 I Edw. Ch. 46; Swift v. Eckford, 6 Paige, 
 22; Lloyd v. Brewster, 4 Paige, 538; Par- 
 ker V. Grant, 1 John. Ch. 434; Rogers v. 
 Rogers, 1 Paige, 424; Whitmarsh r. Camp- 
 bell, 2 Paige, 67. And the Court may re- 
 quire the amendments to any sworn bill to 
 be themselves sworn to. Semmes v. Hoy- 
 kin 27 Geo. 27; see Latham v- VViswall, 2 
 Ired. Ch. 204; McDougald v Dougherty, 
 
 II Geo. 570. The amendments made to a 
 sworn bill must be consistent with the 
 original bill; and they must be made with- 
 out striking out any part of the original 
 
 d')n and Blackwall Railway Company v. 
 The Limehouse Board of Works, 3 K. & J. 
 123; Smith i>. Dixon, ubi sup.
 
 AMENDING THE BILL. 
 
 425 
 
 Where after notice of motion for an injunction had been served, a 
 general demurrer to the bill was allowed, leave was given to amend, 
 without prejudice to the notice of motion.^ 
 
 Where a defendant is in contempt for want of answer, the 
 plaintiff will, if he amend his bill, be considered to have, by his 
 own act, purged the defendant's contempt ; ^ but where a defend- 
 ant has been brought to the bar of the Court for his contempt in 
 not answering, and refuses or neglects to answer (not being idiot, 
 lunatic, or of unsound mind), the Court may, upon motion or 
 petition, of which due notice has been given personally to the 
 defendant, authorize the plaintiff to amend his bill, without such 
 amendment operating as a discharge of the contempt, or rendering 
 it necessary to proceed with the process of contempt de novo.^ 
 
 The amendment of the bill, even for the pui-pose of rectifying 
 a clerical error, renders a previous order to take the bill pro con- 
 fesso inoperative : * unless the amendment was made in pursuance 
 of an order, obtained under the Act last referred to. 
 
 If the plaintiff takes advantage of an order to amend, so as 
 entirely to change his case, and to make the bill a perfectly new 
 one,^ or if the amendments introduced into the bill are not, in 
 other respects, warranted by the order to amend, the defendant 
 may m6ve, on notice to the plaintiff, that the amended bill may 
 be taken off the file, or that the amendments may be struck out, 
 and the record restored to its original state ; and that the plaintiff 
 may be ordered to pay the defendant's costs occasioned by the 
 amendment, and of and consequent on the apjolication, or to place 
 
 Ch. VI. § 8. 
 
 Amendment 
 purges de- 
 fendant's con- 
 tempt in not 
 answering, 
 
 unless made 
 by special 
 order, reserv- 
 ing: plaintiff's 
 rights. 
 
 Amendment, 
 after order to 
 take bill pro 
 corij'tsso, 
 renders it 
 inoperative. 
 
 Proceedings, 
 where bill 
 in-egularly 
 amended. 
 
 Costs : 
 
 1 Rawliiigs V. Lambert, 1 J. & H. 458; 
 and see Harding r. Tingev, 10 Jur. N. S. 
 872; 12 W. K. 703, V. C 'K. 
 
 2 Ball V. Ktches, 1 U & M. 324; Gray 
 r. Campbell, lb. 323. 
 
 3 11 Geo. IV. & 1 Will. IV. c. 3C, § 15, 
 r. 10; and 8ee post, Chap. X., Process to 
 cumjiel, and in defduU iif Ansicer. 
 
 * Weightinan >;. I'owell, 2 De G. & S. 
 670; \2 .Jtir. 958. 
 
 '' A party under the pri%ilejre of amend- 
 ing, .Khali not introduce matter whicii 
 wouhl constitute a new liill. Vevplanck v. 
 Merct. Ins. Co., 1 Kdw. Ch. 40; Crabb v. 
 Thoina.i, 25 Ala. 212; Lambert ?'. Jones, 
 2 P. ^: II. 144; Shiehl.s v. Harrow, 17 
 How. r .S. 130; I'Vnno r. Coulter. 14 
 Ark. (I IJnrb.)3!t; Caiev i'. Smith, 11 (ii-n. 
 639; Siiead i'. Mc(U>u\\,'\2 How. U. .S. 407; 
 Hewett f. Adams, 50 .Maine, 271, 278. 
 After a (leci.tion upon » plea to the juris- 
 diction, that a liill in Ki|uity lietweiMi iiiem- 
 bcfH of II manufacluriiiKcoi pora'ion cannot 
 Ih; KUsta ried, the t'ourt will not grant the 
 pIxiutiD' IcHVd to amend, i)y averring that 
 til" coi[)oratif)n li.id been di.i-olveil; this 
 being in efl'ect to make a new and distinct 
 ca«e. I'riilt »•. Haron, 10 Pick. 123. Nor 
 will the Court, where a vendee of land has 
 
 brought a bill for a rescission of the con- 
 tract, permit him to change the prn-er of 
 his bill and claim a specific execution 
 thereof. Shields v. Harrow, 17 How. U. S. 
 130; Williams v. Starke, 2 R. Mon. 196, 
 197. A second mortgagee of land brought 
 a bill against the first mortgagee, to re- 
 deem tlie first mortgage, and the Court 
 postponed the iilaintifi's mortgage, on ac- 
 count of misrejircspntations made by him, 
 so as to let in and give priority to a subse- 
 quent mortiiage of a part of tiie same land 
 to the defendant; tlie (Jourt refused to 
 grant leave to the [ilaintiff tn amend his 
 bill for the pur|)ose of enabling him to 
 linceed under it tor the reileinption of such 
 subse(|U(iit mortgajre. I'latt v. Sipiire, 
 5 ( 'usii. 551. See .Sanborn r. Snnl)orn, 7 
 (iray, 142; Lambert /;. .Jones, 2 1*. & 11. 
 144.' Hut in snme cases it lias been held, 
 that a j)l:iinti(f who bus filed a bill for 
 sfiecific performance of a contract may, 
 un'ler circnm-tanccs, amend his bill and 
 prav for a rescission of the conlract, and 
 fir such other relief as he miiy be entitled 
 to I'arrill v. M( Kinley, 9 (irattan ( Va.), 1 ; 
 C')dingt<>n «. Mott, 1 McCarter (N. J.), 
 430; llewett v. Adams, 60 Maine, 271.
 
 426 
 
 THE BILL. 
 
 Cn. VI. § 8. 
 
 entiivly 
 uow liiso l>y 
 aiueudmout ; 
 
 or strikes out 
 
 important 
 
 parts. 
 
 tho (lofendant in the sanio position witli regard to costs that he 
 wouUl have boon in if tho plaint illj instead of amending, had dis- 
 missed his original hill witli costs, and filed a new one.^ Thus, 
 whore a ])laintitf originally liled his bill against the defendant as 
 his liailitr or agent, in respect of certain farms, praying an account 
 against him u))on that footing, and afterwards upon an issue being 
 directed to try whether the plaintit?" was or was not a mortgagee 
 of such farms, and the jury finding that he was, the ])laintifF 
 amended his bill by stating the mortgage, and converting his 
 former prayer for relief into a prayer for a foreclosure : upon the 
 defendant's moving that the amended bill might be taken off the 
 file. Lord Eldon hold, that the defendant Avas entitled to all the 
 costs sustained by him, beyond what he would have been jiut to if 
 the bill had been originally a bill for a foreclosure, and made an 
 order accordingly: although, as the amended bill had been set 
 down for hearing, he did not go the length of ordering it to be 
 taken off the file.^ 
 
 Upon the same principle, where a plaintiff takes advantage of 
 an order to amend, to strike out a portion of his bill : though he 
 does not alter the nature of it, yet, if expenses, have been occa^ 
 sioned to the defendant by the part which has been struck out, 
 which, in consequence of its having been so struck out, co'uld not 
 be awarded to him at the hearing, the Court will, upon motion, 
 with notice, order such costs to be taxed and paid to the defend- 
 ant.^ Thus, where a plaintiff filed a bill which was of great 
 length, and prayed relief in a variety of matters, to wdiich the 
 defendants put in answers, which were also of great length, after 
 which the plaintiff, by virtue of a common order to amend, amend- 
 ed his bill and filed a new engrossment, which was very short, and 
 confined to one only of the objects of relief prayed by the original 
 bill : upon the defendants moviiig that the order to amend might 
 be dischai-ged, and the bill dismissed with costs, or that the plain- 
 tifi" might pay to them the costs of putting in their answer to so 
 much of the original bill as did not relate to the relief prayed by 
 the amended bill. Lord Northington directed that the order for 
 
 1 Bullock V. Perkins, 1 Dick. 110, 112; 
 Dent t). Wiiniel, jV;. 3.?9; Smith v. Smith, 
 G. Coop. 141; Mavor v. Dry, 2 S. & S. 
 113, 116; Attorney-General v. Cooper, 3 
 ■M. & C. 258, 262; 1 Jur. 790; Allen v. 
 Spring, 22 Heav. 61.5; Tiiomas w. Herriard, 
 7 VV. K. 271,V. C. K.; Eagle v.Le Breton, 
 cited Setoii, 12-54; and see Ainslie « Sims, 
 17 Beav. 174; Parker v. Nicks.m, 4 Giti". 
 311; 9 .lur N S. bdi; I^irlow u. M'Mur- 
 ray, L. K. 2 Eq. 420, 424; 12 Jur. N. S. 
 519, V. C. S.; iLloydw. Brewster, 4 Paitro, 
 638. For form of order see Seton, 1253, 
 
 No. 10; and for forms of notice of motion, 
 see Vol. III. 
 
 2 Smith V. Smith, ubi sup. ; and see 
 Mavor v. Dry, and Parker v. Nickson, ubi 
 sup.; see, however, Allen v. Spring, ubi 
 sup., where such a motion was refused; 
 and it seems it will onlv bf f^ranted, where 
 the case made is entirely new. Thomas v. 
 Bernard, ubi sup. The defendant should 
 not enter into evidence, as to any cliarjres 
 struck out l)V amendment. Stewart v. 
 Stewart, 22 Beav. 393. 
 
 3 For form of notice of motion, see Vol. 
 III.
 
 AMENDING THE BILL. 
 
 427 
 
 amendins: the bill should stand, but that the plaintiff should pay- 
 to the defendants the further sum of five pounds, beyond the sum 
 of twenty shillings mentioned in the order.^ And where a cause, 
 at the hearing, was ordered to stand over, with liberty to the 
 plaintiff to amend by adding parties, and the plaintiff took advan- 
 tage of that order to strike out several charges which had neces- 
 sarily led the defendant into the examination of witnesses, and to 
 add others, the Court, upon motion, ordered that part of the 
 amendment to be discharged, and the plaintiff's bill to be restored 
 to what it Avas before : in order that, at the hearing, the costs of 
 those parts of the bill which had been abandoned by the plaintiff 
 might be awarded to the defendant.^ Where, however, a bill was 
 filed for a foreclosure of a mortgage and for a transfer of a sum 
 of stock, and, on the answer being filed, disclosures were made 
 which rendered it advisable to amend the bill by striking out all 
 that related to the mortgage, whereby nearly one-half of the bill 
 and answer was rendered useless. Sir Lancelot Shadwell V. C. 
 refused to order, on motion, the plaintiff to pay the defendant's 
 costs occasioned by the amendment, as it appeared that the amend- 
 ment was made under the advice of counsel, and not for the pur- 
 pose of vexation or oppression.* , 
 
 The fact of an irregular amendment having been made, under 
 a common order to amend, will not be a sufticient reason for 
 ordering the bill to be taken off the file, if the record can be 
 restored to the state in which it was before such irregular amend- 
 ment was made.* 
 
 Ch. VI. § 8. 
 
 1 Dent V. Wardel, 1 Dick. 339. 
 
 2 Balluck V. I'erkins, 1 Dick. 110; and 
 see Strickland v. Strickhinfi. 3 Beav. 242; 
 Leather Cloth Coinpan vv. Bressey, 3 GifF. 
 474, 494; 8 Jur. N. S. 425, 429. 
 
 8 Monck V. Earl of Tankerville, 10 Sim. 
 284; 3Jur. 1167. 
 
 4 Attoniev-Gpneral v. Cooper, 3 M. & 
 C. 258, 262;" 1 Jur. 790; and see Ainslieu. 
 Sims, 17 Beav. 174. 
 
 Amended bill 
 not ordered 
 to be taken 
 off the file, if 
 the record 
 can be re- 
 stored to its 
 former state.
 
 CHAPTER VII. 
 
 PROCESS BY SERVICE OF A COPY OF THE BILL ON FORMAL 
 DEFENDANTS, AND PROCEEDINGS BY SERVICE OF NOTICE 
 OF THE DECREE. 
 
 Section I. ^- Process by service of a Copy of the Sill on formal 
 
 Defendants. 
 
 "UTiat defend- 
 ants need not 
 be served 
 •with the ordi- 
 narj- process. 
 
 Sending copy 
 of bill on 
 person 
 against • 
 •n-hom no 
 direct relief 
 prayed. 
 
 As soon as the bill has been filed, the plaintiff may proceed to 
 bring before the Court the proposed defendants to the suit. We 
 have seen, however, that the plaintiff is enabled, as against certain 
 formal parties, to dispense with the ordinary process of the Court, 
 upon serving them with a copy of the bill under the General Order,^ 
 and thereupon, in the event of their not voluntarily appearing after 
 such service, to proceed, without further attention to their rights 
 or interests ; and that in certain other cases, the plaintiff may file 
 his bill, and obtain a decree against some or one of the persons 
 who were formerly necessary parties, upon serving the others with 
 notice of the decree that has been made.^ It will be convenient, 
 therefore, to consider, in the first place, the mode of proceeding 
 where parties are served with copies of the bill under the General 
 Order, or with notice of the decree, and then the ordinary process 
 against other defendants. 
 
 Where no account, payment, conveyance, or other direct relief 
 is sought against a party to a suit, it is not necessary for the plain- 
 tiff to require stxch party, not being an inf&nt, to appear to the bill ; 
 but tlie pLuntiff may serve such party, not being an infant, with a 
 copy of the bill, whether the same be an original, or amended, or 
 supplemental bill,^ without any indorsement requiring such party 
 to appear thereto ; and such bill, as against such party, must pray 
 that such party, upon being served with a copy of the bill, may be 
 bound by all the proceedings in the cause.* But the })laintiff may, 
 nevertheless, require a party against whom no account, payment, 
 conveyance, or other direct relief is sought, to appear to the bill, 
 
 1 Ord. X. 11; an<f, Chap. V., Parties. 
 
 2 15 & 16 Vic. c. fcC, § 42; ante, Chap. 
 v.. Partiti. 
 
 3 This includes a bill of revivor and 
 supplemeiit; Walcotw.Waleot, 10 Heav. 20. 
 * For form of prayer, soe Vol. III.
 
 SERVICE OF COPT OF BILL ON FORMAL DEFENDANTS. 429 
 
 and may prosecute the suit against such party in the ordinary way, Ch. VII. § i. 
 if he shaU think fit.^ ' ^-— y -> 
 
 This Order does not authorize service of the copy of the bill on Inapplicable 
 a defendant out of the jurisdiction;^ and if a party served dies out^ol'Tl«r°*^ 
 before the hearing, his personal representative cannot be brought jurisdiction. 
 before the Court by order of revivor, but an orginal bill must be 
 filed against him.^ 
 
 If the bill is amended after service, a copy of the amended bill Amended or 
 must also be served ; * and if a bill of revivor and supplement, or a f^^PP^*^"!"!*^'"*^ 
 supplemental bill is filed, it must be served also ; ^ and so, it is con- served, and, 
 ceived, must a supplemental statement. supplemental 
 
 A plaintiff, availing himself of the course of proceeding intro- statement. 
 
 duced by this Order, must serve a plain, unstamped, and unsealed Copy of bill: 
 . , 1 .,, (. . , . , how sen-ed. 
 
 copy of the bill,*^ without any indorsement thereon requiring the 
 party to appear thereto, upon each of the defendants to be served : 
 either personally, or by leaving the same with his servant or some 
 member of his family at his dwelling-house, or usual place of 
 abode.' 
 
 In the case of a husband and wife, where the suit does not Husband and 
 relate to the separate estate of the wife,* service upon the husband ^'^^^' 
 alone is sufficient ; ^ but where it relates to her separate estate, or 
 they are living apart, a coj>y must be served upon or for each.^" 
 
 The service must be within twelve weeks from the filing of the Time -n-ithin 
 bill," unless the Court shall give leave to make such service after which service 
 that tune.^- Such leave must be applied for by motion, without effected. 
 notice,^^ and the application must be supported by affidavits ex- 
 ])laining the cause of the delay." It seems that substituted ser- 
 vice will not be ordered.^^ 
 
 Where a plaintiff serves a defendant with a copy of the bill Entering 
 under this Order, he must cause a memorandum of such service,^^ dum o™"' 
 
 » Ord. IX. 11. The 54th Equity Rule of . 7 Rraithwaite's Pr. 31; Ord. X. 1; the s"^''<^^ = 
 
 the United States Courts is similar. As to member of the family should be an inmate 
 
 the ellect of this Order between co-defend- of the defendant's house. Edgson «. Edg- 
 
 ant.s, see Boyd v. Movie, 2 Coll. 316, 321, son, 3 l)e G. & S. 029. 
 
 323. 8 Salmon v. Green, 8 Beav. 457. 
 
 2 Lorton v. Kingston, 2 M'N. & G. 139. 9 Kent v. Jacobs, 5 Beav. 48. 
 
 This case was before the 16 & 16 Vic. c. 86, l* Bniithwaite's Pr. 516. 
 
 but it would appear still to apply; power u Ord. X. 17. 
 
 to aer\e the bill out of the jurisdiction 12 (jj-j. x. 17, 18; Horry v. Calder, 7 
 
 being confined to the copy served under Beav. 58/); Bell i'. Hastings, {6. 502. The 
 
 th^> Act; «ee I'eiifold r. Kelly, 12 VV. R. defendant need not be served with the 
 
 2S6, v. ('. K. OrJer enlarging the time. Fenton r. Clay- 
 
 8 Hardy v. Hull, 14 Sim. 21 ; 8Jur. 609. ton, 15 Sim. 82. Where a formal defend- 
 
 The reason is, tlmt he has not appeared; ant came within the jurisdiction after 
 
 Bee iilso (Jrowfoiit v. Mander, 9 Sim. 396; decree, and after the twelve weeks, leave 
 
 Edington v. Hanham, 2 Coll. 619; Bland was refused. Penfold v. Kelly, 12 W. R. 
 
 V. Davi.son, 21 Beav. 312. 286, V. C. K. 
 
 < (^)rd. X. 11; Anou., 1 De G. & S. 321 ; 13 Ord. X. 18. For forms of motion pa- 
 Vincent V. Wutts, 3 MN. & G. 248; per, sec Vol. III. 
 Braithwailc's I'r. 515. H See Horrv v. Calder, 7 Beav. 585; Bell 
 
 ' Ord. X. 11 ; Walcot v. Walcot, 10 Beav. v. Hastings, ib. 692. 
 
 20. _ 16 Thomag v. Selby, 9 Beav. 194. 
 
 • Where a printed bill has been filed, a lo For form of memorandum, eeo Vol. 
 
 printed copy will of course be served. lU.
 
 430 
 
 rORMAL DEFENDANTS. 
 
 NOTICE OF THE DECREE. 
 
 cn. vn. § 1. 
 
 Proof 
 required. 
 
 Where case 
 an improper 
 one for 
 service. 
 
 Misnomer, 
 how cured. 
 
 Where 
 Ber\'ice out 
 of time. 
 
 and of tlie time when it was eftected, to be entered in the Record 
 and Writ Clerks' OtKee. An order authorizing such entry to be 
 made is necessary, and may be obtained on motion/ witliout notice, 
 upon the Court being satisfied of a copy of the bill having been 
 served, and of the time when the service was made.^ 
 
 There have been several cases concerning the extent of informa- 
 tion demanded by the Court, upon motions of this descri])tion ; 
 but the result seems to be, that no further proof is absolutely nec- 
 essary than what is pointed out by the Order itself, namely, proof 
 by affidavit, first, that due service has been effected upon each of 
 the defendants of a copy of the bill, sworn to be a true copy of the 
 bill itself; secondly, of the time and ])lace when and where such 
 service was made, so that the Court may know that it has been 
 effected within the jurisdiction.^ Where a party served with a 
 copy of the' bill had subsequently appeared, it was considered an 
 admission of due service, and no further evidence was required ; * 
 and in such a case, a memorandum of service need not be entered.^ 
 Proof has, in some cases, been required that the person upon whom 
 such service was made was not an Jnfant, and that the bill did not 
 pray an account, payment, conveyance, or other direct relief against 
 such person ; ® but the terms of the Order do not seem to render 
 it necessary that these facts should be established upon the motion, 
 and the later cases are against the necessity for giving proof of 
 them.' 
 
 The plaintiff would seem to take the Order at his own risk ; and 
 if the case be one in which he is not entitled to proceed in this 
 manner, the whole process would be nugatory, and the defendant 
 would not be bound by any of the proceedings in the cause.^ 
 
 Where the defendant, who had been served, was misnamed in 
 the bill, leave was given to enter the memorandum, on production 
 of an affidavit showing that the person served was the same person 
 as the person referred to in the memorandum of service ; ^ and 
 where the copy of the bill had been served after the expiration of 
 the twelve weeks, without an order enlarging the time being ob- 
 
 1 For form of motion paper, see Vol. III. 
 
 2 Ord. X. 12. Memorandum of service 
 ordered ti> be entered on defendant's ac- 
 knowledgment of liaving received tlie bill 
 bv post. Burton v. Sliaw, 10 L. T. N. S. 
 292, V. C. W. 
 
 3 Wiirren v. Postlethwaite, 1 Coll. 171; 
 8 Jur. 282; and see Haigh v. Dixoii, 1 Y. 
 & (J. C. C. IfeO. For form of affidavit, see 
 Vol. III. 
 
 ■* Maude v. Copeland, 1 Coll. 505. 
 
 6 Attorney-General v. Donniiigton Hos- 
 pital, 12 Beav. 551. 
 
 6 Goodwin V. liell, 1 Y. & C. C. C. 181 ; 
 Haigh V. Dixon, ib. 180; Davis v. Prout, 6 
 Beav. 102. 
 
 T Sherwood v. Rivers, 2 Y. & C. C. C. 
 166; 7 Jur. 78; Mawhood v. Labouchere, 
 12 Sim. 362; Anon., 1 Hare, 317, n. ; Welch 
 V. Welch, ib. 593; 6 Jur. 599; Hudson v. 
 Dungworth, 3 Hare, 508; 8 Jur. 1024; 
 Jones V. 8ki])with, 8 Beav. 127. There 
 can be no doubt, that the (Jourt would now 
 act, as to the question of the prayer, on an 
 inspection of a print of the bill ; as it ap- 
 pears it would have done on an inspection 
 of an office copy iu Davis v. I'rout, 5 Beav. 
 102, if one had been iu Court. 
 
 8 Marke v. Locke, 2 Y. & C. C. C. 600, 
 506; Boreham v. Bigtiall, 4 Hare, 633; 7 
 Jur. 528. 
 
 9 Witham v. Salvin, 16 Jur. 420, M. R.
 
 SERVICE OF COPT OF BILL OX FORMAL DEFENDANTS. 
 
 431 
 
 tained, leave was given to enter a memorandum of service, on the 
 defendant served appearing and consenting.^ 
 
 The Order -^ merely confers upon the plaintiff the privilege of 
 adopting this course ; but it is not obligatory upon him, and he 
 may, if he thinks fit, compel such parties to appear, and in other 
 respects prosecute his suit against them in the ordinary manner. 
 The costs occasioned by such a course must, however, be paid by 
 the plaintiff, unless the Court shall otherwise direct.^ 
 
 The question to what parties the Order applies has fi-equently 
 arisen ; but it is not possible to deduce from the cases any clear 
 •rule upon the subject : though it appears that it is not, in general, 
 considered as applicable, where the interest of the defendant is ad- 
 verse to that of the plaintiff, even though no further relief is sought 
 against the defendant than the binding of his rights by a decree. 
 The alterations in the practice of the Court,* have rendered pro- 
 ceedings under the Order we are now considering of comparatively 
 rare occurrence ; and it is not, therefore, desirable to refer in detail 
 to the cases which have occurred ; but they are collected in the 
 note.^ It may be mentioned, however, that it has been held, that 
 the Order does not apply to the Attorney-General ; ® and it seems 
 that it does not apply to a person of unsound mind.'' 
 
 If the motion for leave to enter a memorandum of service be 
 granted, the Order made upon the motion must be drawn up, passed, 
 and entered ; and should then be left with the Record and Writ 
 Clerk in whose division the cause is.* The memorandum is then 
 entered by him in his cause book, and the order is returned to the 
 Bolicitor, with an indorsement upon it to show that the memoran- 
 dum has been entered.^ The Order should be kept for the purpose 
 of production at the hearing of the cause,^" and on bespeaking the 
 decree or order ; " and at any other period of the cause", when the 
 regularity of the service and the entry of the memorandum are 
 required to be established. The memorandum nmst be entered, 
 belbre a certificate to set down the cause can be granted ; ^'- and a 
 certificate that no appearance has been entered by the defendant, 
 
 Cn. vn. § 1. 
 
 Order not 
 
 obligatory. 
 
 To -(vhat 
 parties the 
 Order 
 applies : 
 
 Inapplicable 
 to the Attor- 
 ney-General ; 
 and to person 
 of unsound 
 mind, semble. 
 
 Mode of en- 
 tering; memo- 
 randum of 
 service. 
 
 ' TuRwell V. Hooper, 10 Beav. 19. 
 
 2 (Jrd. X. 11. 
 
 8 Ord. XL. 1«; Abram v. Ward, C Hare, 
 166, 17i). 
 
 * Ante, Cliap. V., Parlies. 
 
 6 .Marke v. Locke, 2 Y. & C. C. C 500; 
 Duncumbe v. Levy, 5 Hare. 232,236; 11 
 Jur. 262; Davi-* i'. Davi.s, 4 Hare, Shi), 3'Jl ; 
 I'owell I', (.'(ickfrell, ib. 0o7; Abram v. 
 Ward, uIh tuj>. ; Lloyd v. Lloyd, 1 V. & (J. 
 C. (;. Ibl; 6.)ur 162; Clarke v. Tip|>iiif;, 
 9 lit-av. 4!f-4, 2'j2; Jolinson v. 'I'uckur, 1.0 
 8im 485; H .lur. 3Sj; Harklay v. Lord 
 Kvav, 2 Hare, 306, 30<J; Knight v. Caw- 
 tbron, 1 De G. & b. 714; 12 Jur. 33; 
 
 Adams v. Piiynter, 1 Coll. 530, 532; 8 Jur. 
 10G3; Gaunt v. Johnson, 7 Hare, 154; 12 
 Jur. 1067; Lewellin v. Cobbold, 17 Jur. 
 1111, V. U. S. 
 
 6 Christopher «. Cleghorn, 8 Beav. 314. 
 
 ■^ I'eniberton v. Langinore, ib. 166. 
 
 8 I'or form of order, see Setun, 1244, 
 No. 3. 
 
 y Uraithwaite's Pr. 516; no fee is pay- 
 able, ib. 517. For form of indorsement, see 
 Vol. III. 
 
 10 Carter v. Bentall, 12 L. J. Ch. 369, 
 M. U. 
 
 11 Kpr. Regul. 15 March, 1860, r. 24. 
 1'^ Bniithwaite's Pr. 510.
 
 432 
 
 FORMAL DEFENDANTS. — NOTICE OF THE DECREE. 
 
 Cm. YII. § 2. 
 
 forui. 
 
 spcciiil 
 
 Within what 
 time. 
 
 Party sen-ed, 
 but not ap- 
 pearing, will 
 be bound by 
 the proceed- 
 ings. 
 
 On appear- 
 ing, will be 
 bound by 
 prior pro- 
 ceedings. 
 
 must bo loft. Avitli the Ivogistrar, on bcs]ioaking the decree or order 
 made at tlio hearing/ when the defendant has not appeared. 
 
 A party so served Avith a co])y of the bill, may, if he desires tlic 
 suit to be prosecuted against himself in the ordinary way, enter an 
 appearance for himself in the common form ; '^ and in such case, 
 the i)laintitf must proceed against such defendant in the ordinary 
 Avay ; but the costs occasioned thereby must be i)aid by the i)arty 
 so api>earing, unless the Court shall otherwise direct.^ A party so 
 served may also, if he is desirous of being served with a notice of 
 the proceedings in the cause, but not of otherwise having the suit 
 prosecuted against himself, enter a s])ocial ajipearance in the fol-' 
 lowing form : " A. B. appears to the bill for the i)urpose of being 
 served with notice of all proceedings therein." In this case, he 
 must be served with notice of all proceedings in the cause, and he 
 is entitled to appear upon them, but he will have to pay the costs 
 occasioned thereby, unless the Court shall otherwise direct.* The 
 notices to be given under this rule, must give the defendant the 
 same length of notice as if he were proceeded against in the ordi- 
 nary way.^ 
 
 Such common or special appearances may be entered within 
 twelve days after service of a copy of the bill ; but they cannot be 
 entered afterwards without leave of the Court, to be obtained on 
 notice to the plaintitt"; and tenns may be imposed by the Court 
 on such an application.*^ 
 
 If the defendant does not enter an appearance within twelve 
 days, the plaintift' may proceed in the cause as if the person served 
 w^ere not a party ; and the defendant will be bound by all the pro- 
 ceedings, in the same manner as if he had appeared and answered ; ^ 
 and if he appears, after the expiration of the twelve days, he will 
 be bound by all proceedings prior to such appearance.* An appli- 
 cation for leave to enter an appearance, without being bound by 
 prior proceedings, has been refused.^ 
 
 Serving 
 parties with 
 notice of 
 the decree: 
 statutory 
 provision. 
 
 Section II. — Proceedings by Service of Notice of the Decree. 
 
 The practice of serving, with notice of the decree, persons who 
 are not named as parties on the record, was introduced by the 42d 
 section of the Chancery Amendment Act of 1852.^° Under the 
 
 1 Reg. Kegul. 15 March, 18G0, r. 24. 
 
 2 See post, Chap. XIII., Appearance. 
 
 3 Ord. X. 14. 
 * Ord. X. 15. 
 
 6 Wilton V. Kumbali, 14 Sim. 56; 8 Jur. 
 236. 
 
 6 Ord. X. 16; Rigby v. Strang ways, 10 
 Jur. 998, V. C. E. For form of order in 
 
 such case, see Seton, 1249, No. 5 ; find for 
 form of notice of motion, see Vol. III. 
 
 7 Ord. X. 13; Toweil v. Cockcrell, 4 
 Hare, 557, 565. 
 
 8 Ord. X. 16. 
 
 9 Boreham v. Bignall, 4 Hare, 633. 
 10 15 & 16 Vic. c. 66.
 
 SERVICE OF NOTICE OF THE DECREE. 
 
 433 
 
 provisions of that section : (1.) Any residuarj^ legatee or next of 
 kin may, without serving the remaining residuary legatees or next 
 of kin, have a decree for the administration of the personal estate 
 of a deceased person.^ (2.) Any legatee interested in a legacy 
 charged upon real estate, and any person interested in the pro- 
 ceeds of real estate directed to be sold, may, -vsithout serving any 
 other legatee or person interested in the proceeds of the estate, 
 have a decree for the administration of the estate of a deceased 
 person.^ (3.) Any residuary devisee or heir may, without serving 
 any co-residuary devisee or co-heir, have the like decree.'^ (4.) Any 
 one of several cestui que trusts imder any deed or instrument may, 
 without serving any other of such cestui que trusts, have a decree 
 for the execution of the trusts of the deed or instrument.* (5.) 
 In all cases of suits for the protection of property pending litiga- 
 tion, and in all cases in the nature of waste, one jjerson may sue 
 on behalf of himself and of all persons having the same interest.^ 
 (6.) Any executor, administrator, or trustee may obtain a decree 
 against any one legatee, next of kin, or cestui que trust for the ad- 
 ministration of the estate, or the execution of the trusts." In all 
 the above cases, the persons who, according to the former practice 
 of the Court, were necessary parties, may be served with notice of 
 the decree ; and after such notice shall be bound by the proceed- 
 ings, in the same manner as if they had been originally made par^ 
 ties to the suit.'' 
 
 The notice of the decree must be served personally, unless 
 otherwise directed; and where a husband and wiie have to be 
 served, the notice must be served on each, jiersonally, notwith- 
 standing that the suit does not relate to the wife's separate 
 estate, and that they are residing together; but the Court or 
 Judge will, on a proper case being made, dispense with personal 
 serAdce.* 
 
 Unlike the course of proceeding by service of a copy of the bill 
 under the General Order, referred to in the i>receding section, the 
 process by service of notice of the decree applies to infants. 
 
 Cn. VTI. § 2. 
 
 > 10 & 16 Vic. c. 86, § 42, r. 1 ; ante, pp. 
 217, 234, 2:!7, 238. Where a residuary lega- 
 tff., who had been served with notice ot the 
 decree, settierl lier interest, tlie notice was 
 directed Ut i)e re-served on the trustee. 
 White «. Steward, 1 \V. N. 83, M. U. 
 
 '■' liule 2; unit, pp. 218, 226. 
 
 8 Kule 3; anlf, p. 218. 
 
 * JJule 4; anlf, \>. 220. 
 
 6 Kule f<; iinlr, p. V!44. 
 
 6 Rule t; ; anie, p. 226. In ail the nbove 
 Cflses, (he Court, if it j>hall see lit, uiity 
 require any other person to l)e made a 
 pBrty to the suit, and iniiy ^ive tiie conduct 
 of liie suit to such person us it may deem 
 proper, and may make such order in any 
 VOL. I. 28 
 
 particular case as it may deem just for 
 placiiif^ the defendant on the record on tlie 
 same tooting; in regard to costs as other 
 parties having a common interest with him 
 in the matters in ijuestion. Kule 7. ]iy 
 Kule U, trustees represent beiiehciaries ia 
 certain cases; see <iiilt, pp. 212, 222, 228, 
 266, 267. 
 
 " Kule 8; ante, pp. lUO, li>l, 217, 218, 
 226. It is improper to serve, under these 
 provisions, notice of the decree on any 
 other persons than those specified in 15 & 
 16 Vic. c. 86, § 42; Culyer v. Colyer, 9 .)ur. 
 N. !S. 2!t4, V. ('. K.; "iind see Knight v. 
 I'ocock, 24 Beav. 436; 4 Jur. N. .S. 1U7. 
 
 " liiaithwaite's I'r. 620, 621. 
 
 Notice to be 
 served per- 
 sonally ; 
 but personal 
 service may 
 be dispensed 
 with. 
 
 In the case of 
 infants, per- 
 sons of un- 
 sound mind, 
 and parties
 
 434 
 
 FORMAL DEFENDANTS. — NOTICE OF THE DECREE. 
 
 Cii. VII. § 2. 
 
 out of the 
 jurisdiction, 
 special onlor 
 necessary. 
 
 Summons tor 
 diriH'tions of 
 Judge as to 
 manner of 
 service : 
 
 on infant*, 
 
 on persons 
 of unsound 
 mind, not so 
 found. 
 
 Service must 
 be strictly 
 according to 
 directions of 
 judge. 
 
 Order to 
 serve out of 
 the jurisdic- 
 tion. 
 
 Judge may 
 dLipense with 
 service, or di- 
 rect suDstitu- 
 ted or special 
 service. 
 
 persons of unsound mind not so found l)y inquisition, and persons 
 out of the jurisdiction ; ^ but in the ease of infants, or persons 
 of unsotuid mind not so found by inquisition, tlie notice is to 
 be served upon such person, and in such manner, as the Judge 
 shall direct ; ^ and an order is necessary for leave to serve a person 
 out of the jurisdicticm.^ 
 
 The ap])lication for the direction of the .Judge, as to the manner 
 of serving notice of the decree on infants, and persons of unsound 
 mind not so found by inquisition, should be made by summons 
 ex parte / * and must be supported by affidavit showing, as far 
 as the ap])licant is able: (1.) With respect to infants: The ages 
 of the infants ; whether they have any parents or testamentary 
 guardians, or guardians appointed by the Court of Chancery; 
 where, and under whose care, the infants are residing ; at whose 
 expense they are maintained, and, in case they have no father or 
 guardian, who are their nearest relations; and that the parents, 
 guardians, relations, or persons on whom it is proposed to serve 
 the notice, have no interest in the matters in question, or, if 
 they have, the nature of such interest, and that it is not adverse 
 to the interest of the infants. (2.) With respect to persons 
 of unsound mind not found so by inquisition : Where, and under 
 whose care, such persons are residing, and at whose expense they 
 are maintained ; who are their nearest relations ; and that such 
 relations, or persons, upon whom it is proposed to serve the notice, 
 have no interest in the matters in question, or, if they have, the 
 nature of such interest, and that it is not adverse to the interest 
 of the persons of unsound mind.^ 
 
 The order on the summons is drawn up by the Registrar ; and 
 the service must be effected in strict accordance with the direc- 
 tions contained in the order; and copy of such order must also 
 be served, at the time of serving the notice of the decree.^ 
 
 An order to serve notice of a decree on a person out of the 
 jurisdiction may be obtained on an ex parte summons, supported 
 by affidavit showing the nature of his interest in the suit, and the 
 place or country where he is supposed to be residing.'' 
 
 The Judge in Chambers will not, in general, in the first 
 instance, direct upon whom the notice of the decree is to be 
 served ; ^ but he will entertain an application to dispense with the 
 service upon any person as to whom it appears that, from absence, 
 or other sufficient cause, it ought to be dispensed with, or cannot 
 
 1 Chalmers i'. Laurie, 10 Hare Ap. 27; 
 1 W. K. 265 ; Clarke v. Clarke, 'J Hare, 
 Ap. 13, marginal note; 1 W. K. 48; 
 Strong V. Moure, 22 L. J. Ch. 917, M. R. 
 
 2 Ord. VH. 5. 
 
 8 See Strong v. Moore, ubi sup. 
 
 * For forms of summons, see Vol. HI. 
 
 6 Regul. 8 Aug., 1857, r. 7; for forms of 
 aflidavit, see Vol. HI. 
 
 6 Braithwaite's Pr. 523; see Seton, 1212. 
 
 7 For forms of summons, and affidavit 
 in support, .see Vol. III. 
 
 ** See, however, De Balinhard v. Bul- 
 lock, 9 Hare Ap. 13.
 
 SERVICE OF NOTICE OF THE DECREE. 
 
 435 
 
 be made ; ^ or to substitute service, or give notice by advertise- Oh. VII. § 2. 
 
 ment or otherwise, in lieu of such service.^ The party having ""— — y ' 
 
 the prosecution of the decree should, therefore, in the first place, 
 consider what persons not named on the record ought, under the 
 provisions of the Chancery Amendment Act of 1852,^ to be 
 served with notice of the decree. On this subject, he is refen-ed 
 to the former part of this treatise.* He should then consider 
 whether the circumstances of the case, and the nature of their 
 interest in the suit, are such as will justify an application to the 
 Judge to dispense with service on any of them ; or to sanction 
 some special mode of service : as, on one or more for all the 
 members of a class, or by public advertisement, or through the 
 post, or on a substitute. An application of this description to 
 the Judge is usually required to be made by an ex parte sum- 
 mons,* supported by evidence of the facts on which it is founded ; 
 and where a special mode of service is directed, an order is 
 ordinarily drawn up by the Registrar, which will contain a direc- 
 tion that a copy of it shall be served with the notice. Where 
 Ben'ice is dispensed with, an order to that efiect is not usually 
 drawn up ; ® but the fact is stated in the Chief Clerk's certificate 
 of the result of the proceedings. 
 
 If service through the jjost is sanctioned, and no special Service by 
 directions are given as to the mode of authenticatine: such service, post: how au- 
 
 1-11 1 1 . . , f , , , thenticated. 
 
 it seems advisable to enclose the notice m a letter addressed to the 
 person to be served,'' and to request him to acknowledge, through 
 the post, the receipt of the notice ; and it would be well to enclose 
 a form of acknowledgment for signature." The service, in this 
 case, w^ill be deemed to have been effected at the date of the letter 
 of acknowledgment.^ 
 
 The Judge will, usually, proceed to give his directions as to the ■v\n,cro decree 
 manner in which the decree is to be prosecuted, notwithstanding 
 evidence is not adduced to satisfy him that all pi'0})er ])arties have 
 been served with notice.^'^ Indeed, it not unfre(pieiitly happens, 
 that the persons to be served cannot be known till some of the 
 inquiries under the decree have been prosecuted at Chambers: as 
 where the members constituting a class of residuary legatees, or 
 next (jf kin, have to be ascertained; and by directions being ob- 
 tained for insertion of advertisements for creditors and other 
 claimants to come in, and for the accounts to be brought in, and 
 the inquiries answered, Ijefore these class inquiries are entered 
 
 may lie ))r(isc 
 cutod before 
 service of 
 notice of it. 
 
 1 Ibul; pT<]. XXXV. 18. 
 ' Ord. .XXXV. 18; for lorm of summons 
 in »uch cane, see Vol. III. 
 ' 16 & IG Vic. c. H(j, § 42, rr. 1-8. 
 * See nn(v, pp. 21(;-2I8, 2'26, 220, 244. 
 ^ For a form, see Vol. III. 
 
 8 Hut i<t s'imctime.s; see Gavin v. Os- 
 borne, cited Setoii, 1213. 
 
 ' l"or form ot letter, .see Vol. III. 
 
 8 For l'ornisofucknr)\vledfrmeiit and affi- 
 davit I'f service, sec Vol. III. 
 
 '■> Hraitli waited I'r. 022. 
 
 10 See Ord. XXXV. 16.
 
 436 
 
 FORMAL DEFENDANTS. NOTICE OF THE DECREE. 
 
 Cm. VII. § 2. 
 
 MiMuoran- 
 iliiui to 1)0 
 indorsed on 
 notice. 
 
 Sennce of 
 copy equiva- 
 leut to ser- 
 vice of notice. 
 
 Memoran- 
 dum of 
 service to be 
 entered at 
 Record and 
 Writ Clerks' 
 Otfice. 
 
 Where 
 sen'ice 
 irregular. 
 
 Certificate of 
 entry. Copy 
 for Chambers. 
 
 Parties 
 served may 
 apply to add 
 
 upon, miu'li tiino in prosecuting tlie (Iceroe may 1)C saved, without 
 pivjudii'inL!; pevt^ons who may be subsecpiently served with notice 
 of tlie decree, and obtain orilers to attend the proceedings. 
 
 The notice of the decree must be entitled in the cause ; and a 
 nicniorandum must be indorsed thereon, giving the person served 
 notice that from the time of service lie will be bound by the 
 proceedhigs in the cause, in the same manner as if he had been 
 originally made a i)arty ; and that he may, by an order of course, 
 have liberty to attend the proceedings, and may, within one month 
 after seiwice, apply to the Court to add to the decree.^ 
 
 Service of a copy of the decree is regarded as service of notice 
 of the decree ; but the copy must be indorsed in like manner as a 
 notice.*^ 
 
 When any party has been served with notice of a decree, a 
 memorandum of ser\ace must, upon proof by affidavit that the 
 service has been duly effected, be entered in the office of the 
 Clerks of Records and Writs.^ 
 
 When it appears by the affidavit that the service has not been 
 effected in accordance with the ordinary practice in these cases, 
 and the Record and Writ Clerk refuses, in consequence, to enter 
 a memorandum of service thereon, the plaintiff may instruct 
 counsel to apply to the Court, ex parte^ for its sanction to the 
 memorandum being entered ; or, where directions for the service 
 have been given at Chambers, or the service is required for the 
 purpose of proceedings pending there, the ap})lication should be 
 made at Chambers, ex parte, by the solicitor, without summons. 
 The sanction, if given, is evidenced by an indorsement on the 
 affidavit to the following effect : " Let the memorandum of service 
 be entered on this affidavit ; " and such indorsement is signed by 
 the Registrar in Court, or by the Chief Clerk at Chambers, as the 
 case may be, and will be acted on by the Record and Writ Clerk, 
 ^v^thout a formal order being drawn up.* 
 
 'V\\Q Record and Writ Clerk will give a certificate of the entry 
 of the memorandum of service ; ^ and a copy of such certificate, 
 certified by the solicitor, is to be left at the Chambers of the Judge 
 to whose Court the cause is attached.^ 
 
 The party served may apply, within one month after service, for 
 leave to add to the decree.'' Such application is usually made 
 
 1 Ord. XXIII. 20; for forms of notice 
 and indorsement, see Vol. III. 
 
 '^ Braithwaite's I'r. 519. 
 
 8 Ord.XXlII. 19. An office copy of the 
 affidavit, together with \\\c prcecipe to en- 
 ter tlie memoramlum, and saiy exhibits or 
 orders connected with the affidavit of .ser- 
 vice, are required to be left at the office 
 for examination, but -will be returned to 
 the solicitor. For forms of prmcipt and 
 affidavits, see Vol. UI. 
 
 4 See Braithwaite's Fr. 521; and Re 
 Newbold, there cited. 
 
 6 The fee is 4a-. Regul. to Order, Sched. 
 4. For form of certificate, see Vol. III. 
 
 6 8th Ilegulation, 8 Aug., 1857. For 
 form of certificate, see Vol. III. 
 
 7 15 & 16 Vic. c. 8G, § 42, r. 8; Ord. 
 XXXIII. 18; the month is lunar, Ord. 
 XXXVII. 10. Where the party to be 
 served is out of the jurisdiction, an en- 
 larged time may be given; see Strong v-
 
 SERVICE OF NOTICE OF THE DECREE. 437 
 
 by summons : ^ which must be served on the solicitors of all parties Cn. vn. § 2. 
 
 to the cause, and of all persons who have obtained orders to attend. ' r — — ' 
 
 The party served may also obtain an order of course,^ upon to decree, or 
 petition at the Rolls, or on motion,^ for liberty to attend all pro- attend pro- 
 ceedings under the decree,* ceedmgs. 
 
 Infants, and persons of unsound mind not so found, attend the Guardians ad 
 
 proceedings by their guardians ad litem, who are appointed in the appointed of 
 
 same manner as guaraians ad litem to answer and defend suits ; ^ infants, and 
 
 ,,TT • T- T ■ r~l^ ^ persons of un- 
 
 and the Judge may, at any time during proceedings m (Jnambers, sound mind. 
 under any decree or order, require a guardian ad litem to be 
 appointed for any infant, or person of unsound mind not so found 
 by inquisition, who has been served with notice of such decree or 
 order,® 
 
 Where a person served Avith notice of the decree obtains an Order to 
 order for leave to attend the proceedings, no other evidence of cientevf" 
 service of the notice on him will be required ; the Judge must, dence of 
 
 Service or 
 
 however, be satisfied of his identity with the person on whom the notice. 
 notice ought to have been served, 
 
 A copy of every order for leave to attend proceedings should Ser\'ice of 
 
 be served on the solicitors of all parties in the cause, and of all ^^^^l ^J 
 
 persons who have leave to attend the proceedings ; and a copy, attend. 
 
 certified by the solicitor to be a true copy,'' should be left at the ^PP^f^r 
 
 / Chamber^ 
 
 Judge s Chambers.* 
 
 No appearance is to be entered at the Record and Writ Clerks' No appear- 
 office by a person served with notice of the decree ; nor is it neces- gary by party 
 sary that any order he may obtain to attend the proceedings served witii 
 should be ])roduced or entered there.^ The practitioner will, 
 therefore, be unable to ascertain from the books of that office what 
 parties have, by obtaining orders to attend the proceedings, enti- 
 tled themselves to be treated as quasi parties to the suit. He must 
 seek this inf(n-mation by search in the books kept at the entering 
 seat in the Registrar's office, at the Report office, and in the Sec- 
 retary's office at the Rolls, for tlie entry of orders, and at the 
 Chambers of the Judge ; or by inquiring of the parties in the 
 cause, what orders for leave to attend have been served on 
 tlicni. 
 
 If the party sei-ved attends, without obtaining an order giving costs of 
 him leave, he will not be allowed his costs of such attendance, parties so 
 
 ' attendnijj. 
 
 Moore, 22 L. J. (.'li. (il7, M. K. SenMf., ttiose persons who, under the former pruc- 
 
 the Attoniey-(ieiieral may iipplv to add tice, were necessary parties to the suit, 
 
 to the decree after the niontli. ./ohiistone Colver r Colyer, 9 Jur. N. S 294, V. C. K. 
 
 p. Hamilton, 11 Jnr. N. S. 777, V. C. S. fi'Ord. VI[. (i; see ante, pp. 160, 176; 
 
 * For firm of summons, see Vol. III. and (i>r tbrms of motion paper and petition, 
 2 15 & 10 Vic. v.. f-O, § 42, r, 8; Seton, sec Vol. III. 
 
 188, 1213. 8 Onl. VII. 7. 
 
 * Kor forms of |)etition and motion paper, " Kur form of certificate, see Vol. III. 
 8€e Vol. III. 8 licKui. 8 Aug., 1867. r. 8, 
 
 * The order can only be obtained by ^ Braithwaite's I'r. 520.
 
 438 
 
 FORMAL DEFENDANTS. — NOTICE OF THE DECREE. 
 
 On. TIL § 2. 
 
 AiTfjricved 
 party may 
 ]K'tition tor a 
 ri'hearing, or 
 may apply 
 for U'ave to 
 file bill of 
 review, if 
 question 
 cannot be 
 raised in the 
 suit. 
 
 Avitliout a special order for that purpose;^ and it is to be ob- 
 served, that the order giving a party served with notice of the 
 decree liberty to attend, does not si)ecify at whose costs he is to 
 attend, but his costs are dealt with at the hearing of the cause on 
 further consideration ; and it is conceived that, where the Court is 
 of ojiinion that the interest of the party in question is sufficiently 
 protected by the i)arties named on the record, or who have already 
 obtained leave to attend the proceedings, it will refuse to allow 
 him any costs.^ 
 
 A person who has been served with notice of the decree, and 
 who has obtained leave to attend the proceedings, may, if aggrieved 
 by any order in the suit, present a petition of rehearing in the 
 usual manner,* but if he is unable to raise the question on the 
 pleadings, the proper course for him to pursue is to move, on 
 notice, for leave to file a bill : which would be in the nature of a 
 bill of review.* 
 
 1 Ord. XL. 28. 
 
 2 See Ord. XXXV. 20; Seton, 187; 
 Stevenson v. Abington, 11 W. R. 936, M. 
 R. ; Jie Taylor, Daubnev ';. Leake, L. R. 
 1 Eq. 495, "M. R. ; Hubbard v. Latham, 1 
 W.N. 105; 14W. R. 553, V. C.K.; Wragg 
 V. Morley, 14 \V. R. 949, V. C W., as to 
 classes of parties appearing by different 
 solicitors ; and see Bennett v. Wood, 7 Sim. 
 522; Hutchinson v. Freeman, 4 M. & C. 
 490 ; 3 Jur. 694 ; Shuttleworth v. Howarth, 
 4 M. & C. 492; 5 Jur. 2; C & P. 228, 
 
 where persons intervening, who were not 
 made parties because they belonged to a 
 very numerous class, were allowed the 
 same costs as if they had been made par- 
 ties to the suit. 
 
 3 Ellison V. Thomas, 1 De G., J. & S. 
 13; see post, Chap. XXXIL § 2, Rehear- 
 in (/s and Appeals in the Court of Chancery. 
 
 4 Kidd V. Cheyne, 18 Jur. 348, V. C. 
 W.; seej90s«, Chap. XXXIV. § 5, Bills of 
 Review.
 
 CHAPTER VIII. 
 
 PROCESS TO COMPEL, AND PROCEEDINGS IN DEFAULT OF, 
 APPEARANCE. 
 
 Sectio?^^ I. — Service of the Copy of the Bill. 
 
 FoRiLERLY, when the bill was filed, the ordinary course of pro- 
 ceeding against the defendants was to sue out and serve a writ of 
 subpoena} This has, however, as we have seen, been abolished j^ 
 
 1 The former English practice of com- 
 pellint; the appearance of the defendant by 
 issuins and serving a writ of sulipwna is 
 still adhered to in the Circuit Courts of the 
 United States, and in Massachusetts and 
 some other State Courts. Under this prac- 
 tice the first step usually is, to sue out and 
 serve a subpcena, which is a writ issuing 
 out of the Court, and directed to the party 
 himself, commanding him to appear (ac- 
 cording to the old form of the writ), under 
 a certain penalty therein expressed (sub- 
 pcena centum librarum), and answer to the 
 matters alleged apainst him. 
 
 It is to be observed, that the writ of 
 subpmnn differs from the other writs of 
 
 E recess, in being directed to the party 
 imself, whereas the subsequent writs or 
 orders are directed, not to the party liim- 
 Belf, but certain ministerial officers, com- 
 manding them to take certain proceedings 
 against the defendant, calculated to enforce 
 hi* obe lience. 
 
 It would seem, according to the Ameri- 
 can practice, that the biUought in all cases 
 to be fileii before or at the time of issuing 
 the »u/jj/fena. 1 Hofl". Cti. I'r. 101, note; 
 
 1 Barb. Ch. I'r. SM; rin^e, 399, notes; Rule 
 
 2 of (Jhaticery Practice in Massachusetts; 
 Rule 11 of the Equity Rules of the United 
 States Courts. Howe v. Willard, 40 Vt. 
 654. 
 
 Uy the 7th I'>iuily Rule for the U. States 
 Court", If is proviled that the process of 
 $ul)p<enn shall fon«titute the prfiper mcstie 
 priicesH in all suits in E(|uit_v, in the first 
 m-<tance, to require the defendant to appear 
 and answer the exigency of the bill; 
 and by Rule 12, whenever a bill is filci, 
 the clerk shall issue the process of sub/nr.na 
 thereon, .is of course, upon the application 
 of the plaintiff, which shall be returnable 
 into the Clerk's ofTlcf; the next rule day, or 
 the next rule day but one, at the election 
 
 of the plaintiff, occurring after twenty days 
 from the time of the issuing thereof. 
 Where there is more than one defendant, 
 a writ of subpcena may, at the election of 
 the plaintiff, be sued out separately for 
 each defendant, except in the case of hus- 
 band and wife defendants, or a joint sub- 
 jxena against all the defendants. 
 
 By Chancer}' Rule 17, in New Jersey, 
 the names of all the defendants in the 
 same cause shall be inserted in one sub- 
 p(£na, utdess the defendants reside in 
 different counties, in which case the names 
 of all those who reside in the same county 
 shall be inserted in the same subpoena; by 
 Rule 18, copies of tickets served with the 
 subpcena upon the defendants shall be an- 
 nexed to and returned with the subpoena. 
 
 In Massachusetts, the subpcena on bills 
 in Equity shall be issued from the Clerk's 
 office either in term time or in vacation 
 upon a bill there filed, shall bear teste of 
 the first Justice of the Court, who is not a 
 party to the suit, and shall be under the 
 seal of the Court, and signed by the Clerk. 
 Geiil. Sts. c. 132, § 18. The process shall 
 be made returnable at the next succeeding 
 term, or at any intermediate rule day, at 
 the election of the party who takes it out. 
 Rule 4, (if the Rules of Chancery Practice. 
 
 In Maine, " a s«/>/xr,H(i in the form pre- 
 scribed shall issue on the filing of the bill 
 with the Clerk; and it may be made re- 
 turnable on a day certain in or out of term 
 time." Rule 2, of the Rules of Chancery 
 Practice. 
 
 In Connecticut, to a bill in Chancery 
 against defendants residing in that State, 
 a citation, signed by a magistrate, must 
 be annexed, which must be serveil upon 
 the defendants at least twelve days before 
 
 2 Except as to bills filed on or before 1 
 Nov., 1802; Ord. XXVIII. 10. 
 
 Defendant to 
 be served 
 with printed 
 copy of bill, 
 properly 
 stamped and 
 indorsed.
 
 l\() 
 
 COMrELLING APPEARANCE. — PROCEEDINGS IN DEFAULT. 
 
 Til. viii.§i. and, Instoiid, the dofoiulants are to bo served witli a printed copy 
 of the bilV ]>r()perly stamped by one of the Clerks of Records 
 
 the sitting ("f t'le Court to wliioh the hill is 
 pietVrred. Centrnl Miuuif. Co. v. Ilnrts- 
 liorne, 3 Conn. 100. 
 
 In ^IiissiuluisPtts. by Chancer}' Rnle 1, 
 when the bill is not inserted in nn original 
 ■writ, as provided by statute, the original 
 process to require the appearance of defend- 
 ants shall ben.<«/v"r«(i,inform following: — 
 " Commonicealih of Massachnsetls." 
 
 " , ss. To A. B., of (addition.) 
 
 CiKkkting: 
 " [l. s.] We command you that you ap- 
 pear before our Supreme Judicial Court, 
 next to be holden at , within 
 
 and for the County of , on the 
 
 day of next, then and there 
 
 to answer to abillof complaint exhibit- 
 ed against vou in our said Court, by C. 
 D., of " (addition), and to do 
 
 and receive what our said Court shall 
 then and there consider in that behalf. 
 Hereof fail not, under the ])ains and 
 penalties of the law in that behalf pro- 
 vided. 
 
 " Witness G. T. B., Esquire, the 
 day of , in the year of our 
 
 Lord 
 
 " A. H., Clerk." 
 
 When the process is made returnable 
 at a rule day, the subpoena shall be altered 
 accordingly. Rule 4, of the Rules of Prac- 
 tice in Chancery. The writ, of suhpmna 
 shall be served by the same oflicers and in 
 the same manner, and the same number of 
 days, at least, before the day on which it 
 is "returnable, as other original writs of 
 summons are by law to be served. Genl. 
 Sts. c. 123, § 31. 
 
 In New Hampshire, "bills in Equity 
 may be filed in term, or in the Clerk's 
 office in vacation. If filed in term, a 
 subpvena or order of notice may issue, re- 
 turnable at the same term, if the Court 
 sliall so order, and such further proceed- 
 ings may be had at the same term as the 
 Court may direct. If filed in vacation, a 
 svbpana or order of notice may be issued 
 by the Clerk as of course, returnable at 
 the next law term." Rule 11, 38 N. H. 
 607. I'^very such subpcenn or order of 
 notice must contain an order on the de- 
 fendants to deliver to the plaintitf s solici- 
 tor, within two months after the service 
 thereof, his jjlea, answer, or demurrer, 
 otherwise the bill to be taken as confessed. 
 Rule 15. Rule 12 provides that " subpcenas 
 shall be served by the same oflScers and 
 in the same manner as ori<rinal writs of 
 summons are bv law to be served, and the 
 plaintiff shall al-^o cause an attested copy 
 of the bill to be delivered to the defendant, 
 or left at his usual place of abode, at the 
 time of the service of the subpana, or with- 
 in fifteen days afterwards." As to the 
 service of an order of notice. Rule 13 pro- 
 vides that " due service of nn attested copy 
 »f the bill and order of notice, shown by 
 
 aflidnvit of the person giving or leaving 
 the same, or bv return of an officer, shnll 
 be deemed sufficient notice of the suit." 
 In this State, the aubpnmn is directed to the 
 defendant, and is in form similar to that 
 above for Massachusetts, with the addition 
 of a command to the defendant to deliver 
 to the plaintifi's solicitor, his answer in 
 writing to the bill, within two calendar 
 months after the service thereof; otherwise 
 the bill to be taken as confessed. See 
 Form, 38 N. H. 624. The order of notice 
 above provided for is an order, signed by 
 the ("^lerk, directing the plaintiff' to give 
 notice to the defendant to appear at the 
 next law teim of the Court, and answer 
 the bill, by serving on him an attested 
 copy of the bill and of the order, at lea.st 
 fourteen days before the term. This order 
 further directs the defendant to deliver to 
 the plaintift's solicitor, his answer in writ- 
 ing, as in the case of the subpcena above 
 referred to. vSee Form, 38 N. II. 614. 
 
 In Maine, the subpcenn is directed to the 
 sheriffs of the counties or their deputies, 
 with a command to summon the defendant 
 to appear according to the directions of 
 the subpoena, to answer to the plaintiff in a 
 bill in Equity, and to enter an appearance 
 thereto by himself or his attorney. The 
 sheriffs are also ordered to make due re- 
 turn of their proceedings. See Form, 37 
 Maine, 594, 595. When the bill is not in- 
 serted in a writ of attachment, a subpcena 
 in the form prescribed shall issue on the 
 filing of the bill with the Clerk, and be 
 served bv copy, accompanied by a copy of 
 the bill. ■ Rule 2, 37 Maine, 581. 
 
 In Massachusetts, a bill or petition in 
 an Equity suit, may be inserted in an orig- 
 inal writ of summons, or of summons and 
 attachment, and shall be returnable at the 
 terms of the Court as established in the 
 several counties, or on the rule days estab- 
 lished bv the Court. Genl. Sts. c. 113, 
 § 3, ante, 305, note. 
 
 In Maine, the bill may be inserted in a 
 writ of attachment, and when so inserted, 
 in addition to the service required by law, 
 a copy shall be left with each defendant, 
 or at his last and usual place of abode, or 
 he will not be required to file his answer 
 within sixty da3-s. Rule 2, 37 Maine, 581 ; 
 see Stephenson v. Davis, 56 Maine, 73, 76. 
 
 When a party is charged in a bill in the 
 capacity in whi('h he is liable, as executor, 
 &c., it is not ground of demurrer, that the 
 
 1 15 & 16 Vic. c. 86, §§ 2-5. In Yeat- 
 mnn v. Mousley, 2 De 6.. M. & G. 220; 
 16 .Jur. 1004, a bill was ordered to be filed, 
 although a mistaken transposition of the 
 names of one of the parties had been cor- 
 rected in ink; and see Barnes ?i. Ridgwav, 
 1 Sm. & G. Ap. 18; but now, no bill will 
 be filed, as a printed bill, unless all altera- 
 tions are made in type. Braithwaite'B Pr. 
 25; ante, p. 396. n." (e).
 
 SERVICE OF THE COPY OF THE BILL. 
 
 441 
 
 and "Writs indicating- tlie date of the filing of the bill,^ and with 
 an indorsement thereon,- directing the defendant to cause an 
 appearance to be entered for him within eight days ; ^ to which is 
 added the following note : " If you fail to comply with the above 
 directions, the plaintiif may enter an appearance for you, and you 
 ■will be liable to be arrested and imprisoned, and to have a decree 
 made against yon in your absence." * 
 
 The indorsement need not be printed ; ^ and may be partly 
 printed and partly written : ^ and such variations may be made 
 therein as circumstances may require.'' Consequently, when the 
 defendant to be served is out of the jurisdiction, the time specially 
 fixed by the Court for him to appear should be inserted in the 
 indorsement, instead of " eight days." * In such a case, the time 
 fixed for him to plead, answer, or demur, not demumng alone, 
 should also be inserted in the indorsement, if the plaintiff intends 
 to serve him with interrogatories." ^ 
 
 When the defendant is a corporation aggregate, the words " you 
 will be liable to have your lands and tenements, goods and chat- 
 tels, distrained upon, and other proceedings taken against you," 
 are substituted for the Avords, " you will be .liable to be arrested 
 and imprisoned." ^'^ 
 
 Where the Attoniey-General is served with a bill, there should 
 be no indorsement upon it." 
 
 Cn.Vin.§l. 
 
 ^- Y ^ 
 
 Ordinary 
 form of 
 indorsement. 
 
 Indorsement 
 may be 
 varied ac- 
 cording to 
 circum- 
 stances ; 
 
 as in case of 
 service out of 
 jurisdiction, 
 
 or on a 
 
 corporation 
 
 aggregate. 
 
 Ser\ace on 
 Attorney- 
 General. 
 
 suhpftna was issued to him generally, not 
 st:itiiif( the capacity in wliich he is sued. 
 WMlton r. nerbort,"3 (Jreen Oh. 73. 
 
 On the tiling of a bill in Kf|uity in the 
 Supreme Court of the Uniteii Stntes by 
 the State of Florida ngainst the State of 
 Georgia, the (Jourt directed that pro- 
 cess of subjxtwi issue against "The State 
 of Gporgia.'' Stiite of Florida v. Georgia, 
 11 Flow. U. S. 293. 
 
 The stfltnte prohibiting the service of 
 civil process in the city of New York on 
 the days of charter elections, does not 
 apply to a mihfHPnn tind injunction issued 
 out of the Court of (Chancery. Wheeler 
 V. Uartlttt, 1 Kdw. Cli. 323. 
 
 The issuing of a stthpcetid, in Xew .Jer- 
 foy, except in ca'ea to stay wa^tc, before 
 the filitig of the bill, is irregular, and if 
 promptly brought to the notice of the 
 Court, the tii/i/Mnnri, on motion for that 
 purpose, will be set aside as illegally 
 msupil ; but the irregularity i" puri'ly tpcli- 
 tiical, and is waivcij bv an appearance. 
 Crowell r. Hotsford, 1 C. E. Green (N. .1.), 
 458. 
 
 In Vermont, it has been held that a fail- 
 ure to have service; made of the in iginal 
 tubptrnri with the bill and iniuiicti'in, »-ea- 
 Bonablv for the term to which the unh/iicna 
 was made returnable, dops not operate a 
 discontinuance of the proceedings, so that 
 the order of the Chancellor, and the in- 
 
 junction issued in pursuance of it, become 
 vacated and void. Suing time having 
 expired before service could be made, the 
 plaintiffhad the right to another subpcena 
 returnable to the next term. Howe v. 
 Willard, 40 Vt. 654. 
 
 1 15 & 16 Vic. c. 86, § 3. For a case 
 where the defendant was served with an 
 unstamped copv, see Mutton v. Smith, 24 
 L. J. Ch. 147, V. C. W. As to service of 
 unstamped copies on formal parties, see 
 ante, p. 429. 
 
 2 15 & 16 Vic. c. 86, § 3, and Sched., 
 as varied by Ord. IX. 2 ; and see forms in 
 Vol. III. 
 
 8 A defendant may, however, appear 
 gratis, before service on him of a copy of 
 the bill ; see post, Chap. XIIF., Appcnrmice. 
 
 * 1.1 & 16 Vic. c. 86, Schod., as varied 
 by Ord. IX. 2. 
 
 6 Sharpe v. Hlondeau, cited 9 Hare Ap. 
 27. 
 
 Hraithwaite's Pr. 80. 
 
 7 15 & 16 Vic. c. 86, § 3; Chatfield v. 
 Berchloldt. '.» Hare A p. 28. 
 
 8 /hill. ; Sharpe v. Hloiidcau, ib. 27 ; 
 Baines r. Hidge, Ibifl. ; 1 W. R. 99. 
 
 " For forms, sec Vol. HI. 
 
 1" Hraithwaite's Pr. 29, n. As to the 
 form of the indorsement, where the de- 
 fendant is H peer, see /)iisl, p. 445. 
 
 11 Bruitliwaite's i'r. 31.
 
 442 
 
 COMPELLING APPEARANCE. PROCEEDINGS IN DEFAULT. 
 
 C'li. VlII.^l. 
 
 Letter 
 missive. 
 
 Sen-ice of 
 MTitten bill. 
 
 Teste of 
 indorsement. 
 
 Stamped 
 copy for 
 sen-ice. 
 
 Under a spe- 
 cial order. 
 
 Re-stamping. 
 
 Copy of bill : 
 how to be 
 sened. 
 
 Where affida- 
 vit has been 
 filed with 
 bilL 
 
 .Ml ])OCM-s of tho throe kinodoms, with or without ;i seat in the 
 I'^jiper llouse,^ provided they are iu)t meiubers of the House of 
 Coniiuons,'- and the widows and dowagers of tlie temporal lords,' 
 are entitled, before they are served with an indorsed coi)y of the 
 bill, to be informed by a communication from the Lord Chancellor, 
 tenned a letter missive, of the fact of the bill having been filed. 
 To obtain this letter missive, a petition for that purpose to the 
 Lord Chancellor must be left with his Lordship's secretary : who 
 will thereupon prepare the letter missive,* obtain his Lordship's 
 signature thereto, and deliver it out to the plaintiff's solicitor. 
 
 Where a written bill is filed, a written copy, stamped and in- 
 dorsed as before ex|)lained, may be served on any defendant ; and 
 such service will have the same effect as the service of a printed 
 copy.^ 
 
 The indorsement must be tested as of the day on which the co})y 
 of the bill is stamped for service ; and at the time it is presented 
 for the purpose of being stamped, a,prcecipe must be filled up, and 
 filed with the proper officer.^ 
 
 If the copy of the bill is to be stamped for service in pursuance 
 of any special order, such order must be produced at the same 
 time. The copy of the bill may be altered and re-stami)ed at any 
 time before service, on another prcecipe being left with the proper 
 officer.'^ 
 
 When the copies of the bill have been stamped and indorsed, in 
 the manner above pointed out, the next step is to serve each of 
 the defendants with one of such copies. This, unless the Court 
 directs some other mode of service, is effected, by serving such 
 copy on each defendant personally, or by leaving the same with his 
 servant, or some member of his family,^ at his dwelling-house or 
 usual place of abode ; and has the same effect as the service of a 
 subpcena formerly had.^ 
 
 When an affidavit has been filed with the bill, a copy of such 
 affidavit, but not necessarily an office copy, should be sealed at the 
 Record and Writ Clerks' office, and annexed to, and served with, 
 each copy of the bill sealed there for service.^'' 
 
 1 Robinson v. Lord Rokebv, 8 Ves. 601. 
 
 2 Ibid. 
 
 8 Harr. by Newl. 101. 
 
 * A fee of 20s. higher scale, and 5s. lower 
 scale, is payable, in Chancery fee fund 
 stamps, on eacli letter missive; Regul. to 
 Ord. Sched. 4. For forms of petition and 
 letter missive, see Vol. III. 
 
 6 15 & 16 Vic. c. 86, § 6. 
 
 8 Each copy stamped for service must 
 bear a 5s. Chancery fee fund stamp if on 
 the higher scale, and a Is. s'amp if on the 
 lower scale. Kegul. to Ord. ScheJ. 4. 
 One praecipe is sufHcient for any number 
 
 of copies. For forms of prcecipe, see Vol. 
 III. 
 
 T Braithwaite's Pr. 82. No fee is paj'- 
 able f )r restamping the copy, unless, as it 
 would seem, the application is made after 
 the expiration of twelve weeks from the 
 date of the indorsemetit. Ord. XXVIII. 
 5, 9; 15 & 16 Vic. c. 86, §§4, 5; Hraith- 
 waite's V'v. 32; Braithwaite's Manual, 190. 
 
 8 Tile member of the family should he 
 an inmate of the house. Edgson v. Edg- 
 son, 3 Ue O. & S. 629. 
 
 y Ord. X. 1 ; 15 & 16 Vie. c. 86, §§ 4, 5. 
 
 10 Ante, pp. 395, 396.
 
 SERVICE OF THE COPY OF THE BELL. 
 
 443 
 
 Service on a Sunday is not good service.^ Service of a copy 
 of the bill is either ordinary, or extraordinary. Ordinary ser\'ice 
 requires no leave fi-ora the Court ; exti-aordinary service requires a 
 special order of the Court to render it valid, and is not used ex- 
 cept under special circumstances, when the ordinary service cannot 
 be effected. 
 
 When the copy is left at the dwelling-house, it is necessary that 
 it should be the place where the defendant actually resides ; ^ and 
 the mere leaving the copy at a defendant's ordinary place of busi- 
 ness, if he does not reside there, will not be good service ; ^ and 
 
 Ch. vm. § 1. 
 
 Bill cannot 
 be served on 
 Sunday ; 
 Service is 
 either ordi- 
 nary or ex- 
 traordinary. 
 
 Sen'ice at 
 dwelling- 
 house, 
 
 1 Mackreth i'. Nicholson, 19 Ves. 367. 
 A subpwnn returnable on Sunday is irregu- 
 lar, and will not warrant the issuing of an 
 attachment for disobedience thereof, as no 
 Court can be held on that dav for any pur- 
 pose. Gould V. Spencer, 5 Paige, 541. 
 
 2 Service on tlie Deputy-Governor of a 
 prison was held to be due service on a 
 defendant, a prisoner there. Newenham 
 V. I'emberton, 2 Coll. 54 ; 9 Jur. 637. 
 
 In tiie United States Courts, the service 
 of all subpoenas shall be by a delivery of a 
 copy thereof by the officer serving the 
 same, to the defendant personalh% or, in 
 the case of husband and wife, to the hus- 
 band personally, or by leaving a copy 
 thereof at the dwelling-house or usual 
 place of abode of each defendant, with 
 some free white person, wlio is a mfmber 
 or resident in the family. 13th Equity 
 Rule. The service is to be made by the 
 marshal of the district, or his deputy, or 
 by some other person specially appointed 
 by the Court for that purpose, and not 
 otherxvlse; in the latter case, the person 
 serving the process shall make affidavit 
 thereof. 15th Equity Rule. Whenever any 
 tubixzrui shall be returned, not executed as 
 to «ny defendant, the plaintiff shall be 
 entitled to another subp(ena, Mies quodes, 
 ai^ainst such defendant, if he sh;dl require 
 it, until due service is made. 14th Equity 
 Uule. 
 
 In Massachusett", "if a party shall not 
 be f'lurid, a copy of the suhpcena may be left 
 at his usual place of abode; and, the truth 
 ofthecnse being returned by the officer, 
 if it shall be made to appear to the Court 
 that the p;irty has actual notice of the 
 SMit, no other service shall be required; 
 otIierwi.Hf, such notice shall be given as 
 the court shiiil order." Rule 4, of the 
 HuU's of Practice in Cliancery. 
 
 In -ome State • the subjxf.tin may be served 
 by any [x-rson; us in Slaryland, Iloye v. 
 Penn, 1 Itiimd, 21); Taylor w. (Jordon, 1 
 I'.land, 132; so in New .Jersey, West v. 
 Stiiilli, 1 (ireen Ch. 30'J; but the service. 
 if made bv liny person other than a legal 
 oflicer, mu--t be proved. Hove v. Penn, 1 
 Blnn<l. 20. 
 
 In Vcrtnont, service of a lubprtna can- 
 n'lt he made by an ItidifTereiit person not 
 named in it. Allyn v. Davis, 10 Vt. 547; 
 
 Burlington Bank i\ Cottin, 11 Vt. 106 As 
 to Kentucky, see Trabue v. Holt, 2 Bibb, 
 393; Barnett v. Montgomery, 6 Monr. 327. 
 In New Hampshire, where a private person 
 may make service of process by copy, he 
 may himself certify and swear to the copj'. 
 Stone V. Anderson, 25 N. H. 221. 
 
 The service of a subprena must be within 
 the jurisdiction, otherwise it is irregular. 
 Dunn V. Dunn, 4 Paige, 425; Creed v. 
 Brvne, 1 Hogan, 79; Johnson v. Nagle, 1 
 Molloy, 243; Hawkins v. Hale, 1 Beav. 
 73; Erlckson v. Smith, 46 N. H. 375. But 
 the defendant may voluntarily appear or 
 stipulate in writing to accept out of the 
 jurisdiction a service as regular. Dunn 
 V. I)\inn, ubi supra ; PIcquet v. Swan, 5 
 IMa'on, 561 ; sec Henderson v. Hopper, 
 Halst. Dig. 170. But in Tennessee, where 
 service of a subp(Bna hns been made upon 
 one material defcndunt in the proper dis- 
 trict or county, a snbpmna may be served 
 upon any other defendant out of the county 
 or district. University v. Cambreling, 6 
 Yerger, 79. 
 
 In Pratt v. Bank of Windsor, Harring. 
 Ch. 254, it was held, that the service of a 
 subpana upon a defendant out of the State 
 is irregular. In I'icquet v. Swan, 5 Mason, 
 561, the plaintiff obtained an order, ap- 
 pointing a commissioner to make service 
 on one of two defendants in Paris, and to 
 take his answer to the bill. See the mode 
 of proceeding, ib. p. 562. 
 
 8 See Smith v. Parke, 2 Paige, 298; 
 Dyett V. N. A. Coal Co.. 20 Wend. 570; 
 Johnston i'. Macconnel, 3 l?lbb, 1. A copy 
 of the snbpmna left at the residence of a 
 party di>niiclled in the State, and tempo- 
 rarily absent therefrom, is sufficient unless 
 it is made to appear that lie has been sur- 
 prised. Southern Steam Packet Co. v. 
 Roger, 1 Cheeves, 48. Where the defend- 
 ant has no family, but boards or makes it 
 his home in the family of another, the sub- 
 prrna to appear and answer may, in his 
 absence from home, l)e served ujion cither 
 of the he ids of the family, at such place of 
 his abode, although he has no wife or ser- 
 vant. Hut to maue such service regular, 
 the place of service mu-t be hi'* actual 
 place of residence at the time, and bis ab- 
 sence therefrom must l)e mend y leniporarv. 
 People V. Craft, 7 Paige, 325; seeBickford
 
 444 
 
 COMPELLING APPEARANCE. — PROCEEDINGS IN DEFAULT. 
 
 Ch.YITT. §1. 
 
 of a Jlomber 
 of Pivrlia- 
 meut. 
 
 Service at 
 town-house 
 of a peer. 
 
 Service upon 
 an infant, or 
 a person of 
 unsound 
 mind not so 
 found. 
 
 tlioroforo, Avhcre, nn(lor the old practice, a snhpama, returnable 
 iiniiuMJiati'ly,^ was moved for upon affidavit stating that the de- 
 fendant lived at Kpsoni, hut that he had chanihers in the Temple 
 and resided there, Lord Thurlow said, that as it did not appear 
 that his place of abode was in the Temple, he could not make the 
 order.- Where, however, a member of the House of Commons, 
 having a house at Southampton and no town residence, was served 
 with a subpoena, returnable imn\ediately, at a friend's house in 
 London, with whom he was upon a visit, and for default of appear- 
 ance a sequestration had been awarded. Lord Thurlow refused to 
 set aside the sequestration for irregularity : saying, that he could 
 not sup]iose that the defendant, a Member of Parliament, during 
 the session of Parliament had no town residence, or that the 
 residence above stated should not be taken as a residence quoad 
 the defendant, whose duty it was to attend, and who actually did 
 attend, the House.^ And so, where a letter missive, and subse- 
 quently a snhpmna, had been served at the town residence of a peer 
 during the sitting of Parliament, Lord Thurlow appears to have 
 been of opinion that it was good ; * and where a letter missive, and 
 afterwards a subpoena, had been served at the town residence of a 
 peer, who at the time was abroad, 'and afterwards an order nisi for 
 a sequestration was issued, a motion to discharge the order nisi 
 was refused.^ 
 
 Ordinary service upon an infant defendant, or upon a defendant 
 of weak or unsound mind, not so found by inquisition, is effected 
 in the same manner as upon an adult.® 
 
 V. Sicewes, 9 Sim. 428. The personal ser- 
 vice of a suhprenn on a defendant, who is 
 confined in the State's prison for a term 
 of vears, is ref^ular. Phelps v. Phelps, 7 
 Paige, 500. So where the service of the 
 subpoena was made on the keeper of the 
 State's prison instead of on the defendant, 
 who was confined therein. Johnson v. 
 JohnsMii, Walker Ch. 309. For service on 
 a defendnnt under criminal sentence, see 
 further, Newenham v. Pemberton, 2 Cott. 
 54. The return to a subprena against A. 
 and B., was as follows: "Executed on 
 A., — B. not found; " and this was held 
 insufficient to found a decree. Pegg v. 
 Capp, 2 Blackf. 275. In Illinois, where a 
 summons in (Jhanceryis served by leaving 
 it at the residence of the defendant, the 
 return must show that it was left with 
 some person who was a member of the de- 
 fendant's family. Townsend v. Griggs, 2 
 Scam. .365. 
 
 1 See Ilinde, 78. 
 
 2 ,j. Shaw. Hinde, 92; seeMcPher- 
 
 8on V. Horsel, 2 Bea^ley (N. .J.), .35. 
 
 3 East India Company v. liumbold, Hil. 
 Term 1781, cited Hinde, 92. 
 
 4 Attorney-General v. Earl of Stamford, 
 2 Dick. 744. 
 
 6 Thomas v. Earl of Jersey, 2 M. & K. 
 398; and see Davidson v. Marchioness of 
 Hastings, 2 Keen, 509, 513. 
 
 6 See Ord. VII. 3. In Morgan ?;. Jones, 
 4 W. R. 381, V. C. W , substituted ser- 
 vice on the medical officer or keeper of an 
 asylum in which a lunatic was confined, 
 was refused; personal service if practicable 
 being held necessary; and see Anon., 2 
 Jur. N. S. .324, V. C. W. 
 
 Process ought to be served personally 
 on infants. Massie v. Donaldson, 8 Ohio, 
 377; .Jones v. Mason, N. C. Term R. 125. 
 But service of a subpoena on the father of a 
 minor defendant, if within thejurisdiction, 
 was held sufficient, although the minor re- 
 sided out of the jurisdiction. Kirwan v. 
 Kirwan, 1 Hofraii, 264; see 1 Barb. Ch. 
 Pr. 51, 52; Bank of Ontario v. Strong, 2 
 Paige, 301. So on the surviving parent, 
 whether the minor is more or less tlian 
 fourteen years of age. Sanders v. Godley, 
 23 Ala. 473. But when the parent and 
 child are both parties, a service on the 
 parent alone is not sutficient to bring the 
 mlimt before the Court. The subpoena 
 should be served on the parent for the 
 infant, and this should appear by the
 
 SERVICE OF THE COPY OF THE BILL. 
 
 445 
 
 Where a husband and wife are defendants, ordinary service Cn.Yin.§i. 
 
 upon the husband alone is sufficient ; ^ and process of contempt ' y ' 
 
 may issue against him alone for his wife's default.'^ But if they Husband and 
 are li^dng apart, each should be served. If the husband is abroad, ^^^^' 
 or cannot be served, and the subject-matter of the suit arises in 
 rio-ht of the wife, the 2:)laintitf must obtain, on an exjxirte motion, 
 supported by affidavits, an order that service upon her may be 
 deemed good service.^ Service on her alone, in the usual man- 
 ner, will then be sufficient ; * but no compulsory process can be 
 issued against her, grounded on such service, without a previous 
 order of the Court.^ 
 
 If a corporation aggregate be a defendant, the cojiy of the bill 
 may be served upon any one of its members, or, in the case of a 
 public company, ujjon the public officer appointed to be sued on 
 its behalf, or if there be no such officer, upon the chainnan, 
 manager, or secretary*, either personally or at the office of the 
 company.® Provision is also made, by various public Acts, 
 respecting the mode in which docvmients may be served on a 
 company.'^ 
 
 If the defendant be entitled to the privilege of peerage, it has Peers. 
 previously been stated that he has a right to a letter missive, 
 before an indorsed copy of the bill is served upon him.* This 
 letter missive, with a copy of the petition for the same, and with 
 
 Corporation 
 or public 
 company. 
 
 officer's return. Hodges v. Wise, 16 Ala. 
 509. 
 
 Where a bill has been served on an in- 
 fant, there is no necessity for serving the 
 same again on the guurdiau ad litem after 
 he is appointed. Joues v. Drake, 2 Hay w. 
 237. 
 
 Upon a bill against a lunatic in the cus- 
 tody of a committee, service of process 
 upon the committee is sufficient. Oates v. 
 Wood?.on, 2 Dana, 455. 
 
 1 See Leavitt v. Cruger, 1 I'aige, 421. 
 
 2 Gee V. Cottle, 3 M. & C. IbO. The 
 affidavit of service should state that the 
 service was made on the iiusband and 
 wife, by serving the husband. IStcel v. 
 Parsons, 8 Jur. 041, V. C K. B. For an 
 order, giving leave to serve husband and 
 wife separalely out of the jurisdiction, tlie 
 fact ol the marriage being in dispute, see 
 I^oiigwoitli V. Bellamy, cited Seton, 1245. 
 
 •* For form of order, see Seton, 1240, No. 
 9; and for lorms of motion paper and affi- 
 davit, xeo Vol. 111. 
 
 < Bell V. Hyde, I'rec. Ch. 328; Dubois 
 V. Hole, 2 Veni. 6i:j; Bunyan v. Morti- 
 mer, i; Mad. 278; and see Pemberton v. 
 M'ljill, 1 .)ur. .V. S. 1045, V. C. \V.; see 
 Dvett N. A. Coal Co., 20 Wend. 570. 
 
 "t Crahiim v. Fitch, 2 De G. &. S. 246; 
 12 .Jur. 833; and see cmle, p. 183. 
 
 Where the plaintiff seeks relief out of 
 
 the separate estate of the wife, the subpmna 
 must be served on her personally, and she 
 may put in a separate answer; the hus- 
 band in such case being considered only 
 a nominal party. Leavitt v.^ Cruger, 1 
 Paige, 422; Ferguson v. Smith, 2 John. 
 Ch. 139. 
 
 In New Jersey, in cases where husband 
 and wife are made defendants, and he only 
 is served with process ol' sul)piena,thti wife 
 being out of the State, an order of publica- 
 tion shall be taken against her, unless an 
 appearance be entered for her. Chancery 
 Rule, 23. 
 
 Braithwaite's Pr. 33. The subpoena, 
 in case of a corporation, is usually served 
 on the president, cashier, secretary', or 
 other principal officer. 1 Barb. Ch. Pr. 
 52. Service on private corporators is no 
 service on the corporation. De Wolf v. 
 Mallett, 3 Dana, 214. Where the business 
 of a company had practically ceased, but 
 the company had never been di>solved, 
 service was ordered on the late chairman 
 and secretary. Gaskell v. Chambers, 26 
 Beav. 252; 5 Jur. N. S. 52. 
 
 ■ See 8 & 9 Vic. c. 16, § 135; ib. c. 18, 
 § 134; ib. c. 20, § 138; 25 & 26 Vic. c. 89, 
 §§ 62, 63. 
 
 •* Kobinson v. Lord Rokeby, 8 Ves, 601 ; 
 Vigers n. Lord Audley, 9 Sim. 409; anlK, 
 ]). 441; BraiUiwaite's Pr. 29, n.
 
 44G 
 
 COMrELLING APPEARANCE. — PROCEEDINGS IN DEFAULT. 
 
 Cii. VIIT.51. 
 
 Amended bill 
 to be served 
 on all parties 
 or their 
 solicitors. 
 
 Substituted 
 service : 
 
 an iinindorsod copy of the bill, imist be servtMl in the same man- 
 ner as a copy of the bill in onlinary cases. If the peer does not 
 enter his ap])earance within eight days, the ])laintiff must serve 
 him with a copy of the bill indorsed in the usual form : except 
 that the words, " you will be liable to have your estate seques- 
 tered, and other proceedings taken against you," must be sub- 
 stituted for the words, " you Avill be liable to be arrested and 
 imprisoned." ^ 
 
 The Attorney-General used not to be served with a subpoena^ 
 but with a copy of the bill.^ Hence, now the practice with respect 
 to the Attorney-General will be tlie same as with respect to other 
 defendants. 
 
 If the plaintiff amends his bill, he must serve a copy of the 
 amended bill on all the defendants,* or, if they have appeared, 
 on their solicitors ; * or, Avhere they have appeared in person, at 
 the place named for service ; '' and the copy served must be 
 stamped by the Record and Writ Clerk, so as to indicate the filing 
 of the amended bill, and the date of the filing. Where the plain- 
 tiff requires an answer to the amended bill, the copy served should 
 be indorsed in the same manner as the copy of an original bill : 
 other\\ise, the copy served should be without indorsement.^ It is, 
 of course, to be understood, that as to defendants added by amend- 
 ment, the bill is to be treated as an original bill. 
 
 Where the plaintiff is unable to effect ordinary service upon a 
 defendant, in the manner above mentioned, the Court will, in 
 many cases, permit service to be effected u])on the defendant him- 
 self out of the jurisdiction, or to be substituted upon his agent 
 within the jurisdiction. It is expressly enacted by the late Act, 
 that the Court shall be at liberty to direct substituted service of 
 thei bill, as it shall think fit ; "^ but it seems that this enactment 
 
 1 Braithwaite's Pr. 29, n. 
 
 2 Lord Red. 39. Wliere the United 
 States or a State is interested, tlie District 
 Attorney or the Attorney-tieneral must be 
 served with a copy of the bill. If he 
 omits to enter an appearance, an order 
 may be obtained on petition, tliat lie ap- 
 pear within a certain time, or the bill be 
 taken as confessed. 1 Hofif. Ch. Pr. 108. 
 In Grayson v. Virginia, 3 Dall. 320, it was 
 held that when process at Common Law 
 or in Equity shall issue against a State, the 
 same shall be served upon the Governor 
 or chief executive officer, and the Attorney- 
 General of such State. Kules of Supreme 
 Court of tlie United States, December 
 Term, 1868, No. 6. 
 
 In New Jersey v. New York, 3 Peters, 
 461, it was held that where the bill is 
 brought by one State against another, the 
 tvbpana must be served upon the Governor 
 
 and Attorney-General of the defendnnt 
 State, and a service on the Governor alone, 
 there being no appearance entered for the 
 defendants, will not authorize the Court 
 to proceed. See Huger v. S. Carolina, 
 3 Dall. 339. 
 
 3 Urd. IX. 20. The copy may be partly 
 printed and partly written, if the amend- 
 ment is not made by a reprint. Ibirl. 
 
 4 Ord. IX. 21. It is sufficient to serve 
 one copy on each solicitor, notwithstanding 
 he may be concerned for several defend- 
 ants. Where, however, a solicitor is 
 pmperly concerned as solicitor for one 
 defendant, and as agent for another, two 
 copies should be served. Braithwaite's 
 Pr. 308; and ib. n. 
 
 5 Ord. IX. 22. 
 
 6 Barrv v. Croskev, 2 J. & H. 130. 
 
 7 15 &■ 16 Vic. c. 86, § 5; and see 4 & 5 
 Will. IV. c. 82, § 2,post, p. 450.
 
 SERVICE OF THE COPY OF THE BILL. 
 
 447 
 
 does not extend the jurisdiction previously exercised by the Court 
 in this respect.^ 
 
 The principle upon which the Court acts in directing substituted 
 service is clearly enunciated by Lord Cranworth C, in the case of 
 Hope V. Hope : ^ in which case he says, that, where there is an 
 agent in this country managing all the aifairs of a defendant who 
 is abroad, and regularly communicating vrith. him upon his aftairs, 
 or where he has an agent here specially managing the particular 
 matter involved in the suit, the Court has felt that it might safely 
 allow service upon the agent to be deemed good service upon the 
 person abroad : because the inference was irresistible, that service 
 80 made was service on a person either impliedly authorized to 
 accept that particular service, or who certainly would communicate 
 the process so served to the party who was not in this country to 
 receive it himself The object of all service was of course only to 
 give notice to the party on whom it was made, so that he might 
 be made aware of, and able to resist, that which was sought against 
 him; and when that had been substantially done, so that the 
 Court might feel perfectly confident that service had reached him, 
 every thing had been done that was required.^ 
 
 Where a bill is filed to restrain an action at law, and the defend- 
 ant (the plaintifi' in the action) is out of the jurisdiction, or can- 
 not be found,* the Court will allow substituted service on the 
 attorney employed by him to conduct the proceedings at law, on 
 an affidavit proving those facts.^ 
 
 Substituted service of the copy of a cross-bill, upon the solicitor 
 who filed the original bill, will not be ordered ; but the Court will, 
 in such a case, stay the proceedings in the original cause until the 
 defendants have entered an appearance.® 
 
 In tlie case of Hobhouse v. Courtney^'' the cases and authorities 
 upon the subject of substituted service upon an agent were re- 
 viewed. There, the defendant, who was out of the jurisdiction, had 
 given special authority to a person within the jurisdiction to act as 
 Lis agent, with respect to the property which was the subject of the 
 
 Cn. vni. § 1. 
 
 General prin- 
 ciple on 
 which it is 
 directed : 
 
 I]o})e V. Hope. 
 
 "Wlien bill to 
 restrain 
 action, and 
 plaintitl' at 
 law is aln'oad, 
 or caimot be 
 found. 
 
 Not ordered, 
 in cross-suit, 
 on 5)laintitt''3 
 solicitor in 
 original suit, 
 but proceed- 
 ings stayed. 
 
 Upon agent. 
 
 1 See IJones v. Angier, 18 Jur. 1050, V. 
 C. \V.; Hope V. Hope, 4 De G., M. & G. 
 328, 341; and sec (Jrd. X. 2. 
 
 a 4 De G., M. & (i. .'328. 
 
 8 lb.M2. Where a bill was filed against 
 a firm, one member of which was resident 
 abroad, subntituted service on the members 
 in Kngland was directed. Henderson v. 
 Campbell, 13 W. K. "04, L. J.I. 
 
 * Seigison I', licavan, 9 Hare Ap. 29, 
 miirg.; 10 .Jur. 1111, V. (J. S. ; lianiond w. 
 Walker, 3 .Jur. N. S. 680, V. 0. \V.; and 
 Bce Seton, 877; Anderson v. Lewis, 3 Hro. 
 C. C. 42!); 6 Sim. 505; liaillie v. IJlanchct, 
 10 L. T. N. S. 305, V. C. W. 
 
 '' I he mcriti need not now be shown by 
 affidavit. Sergison v- IJeavan, ul/i aup. 
 
 6 Anderson v. Lewis, ubi sup.; and 
 Gardiner v. Mason, 4 Hro. 0. C. 478; 5 
 Sim. 606; and see Waterton v. Croft, 
 5 Sim. 602, 607. 
 
 7 12 Sim. 140, 167; C Jur. 28; approved 
 and acted on in Murray v. Vipart, 1 I'liil. 
 621; 9 Jur. 173; and see Hankier ii. I'oole, 
 8 De G. & S. 375; 13 Jur. 800; Hur.st v. 
 Hurst, 1 De G. .Sc S. 004; 12 Jur. 152; 
 Hornby v. Hohncs, 4 Hare, 306; 9 Jur. 
 225, 7{tO; Dicker v. Clarke, 9 Jur. N. S. 
 630; 11 W. U. 636, V. C. K. ; Barker v. 
 Plele, 11 W. U. 668, V. C. K.; .lackson v. 
 Shanks, 13 VV. U. 287, V.C. VV.; (iauiiier 
 V. Mcincrtzhaagci), 1 W. N. 48, V. C. W. ; 
 Brown t;. Crowe, ib. 80, V. C W.
 
 448 COMPELLING APPEARANCE. — PROCEEDINGS IN DEFAULT. 
 
 Cii.Vlil.§i. suit; and the Court onlcrod service on that person to be good 
 
 " Y ' service upon tlie defendant. An api)licution of a siniihir kind was 
 
 made to Sir James Wigram V. C, in the case of Webb v. /Salmon,^ 
 and refused by him upon the ground, that the })ersons u|)on whom 
 the substituted service was sought to be effected were not agents 
 in the matter of the suit when the correspondence with the plain- 
 tiff's sohcitor commenced, and that they refused to accept the 
 agency; tliere was not, therefore, tliat ap])ointment of thera, as 
 the solicitors or agents of the defendant, which, in the case of 
 Ilobhouse v. Courtney^ was assumed to be necessary. He also 
 observed, that he was not prepared to go beyond that case. 
 In Cooper v. TFooc?,^ Lord Langchde M. R. ordered substituted 
 service on a person who had acted as the solicitor of the absent 
 defendant, in the subject of the mortgage to which the suit related, 
 and who, there was reason to believe, was in communication with 
 the defendant. And in Weymouth v. Lambert,^ the same judge 
 ordered substituted service in a creditors' suit, on one who, acting 
 as the attorney of the executor and general devisee and legatee, 
 resident in India, had obtained administration here, and had 
 entered into receipt of the rents of the real estate ; and where an 
 infant had been taken out of the jurisdiction for the express •\)\\v- 
 pose of preventing his being served personally, his Lordship 
 ordered, that service upon the solicitor and Six Clerk of the parent 
 should be good as against the infant.* It is to be observed, how- 
 ever, that the principle, as laid down in Hope v. Hope^ seems to 
 go beyond the case of Hobhouse v. Courtney. 
 Other The Court, in the exercise of its discretion, has by special order 
 
 instances. permitted various other modes of substituted service to be adopted. 
 Thus, service at the last place of abode of the defendant's wife, 
 has been ordered to be good service." So, service by sending the 
 document under cover to the person to whom the defendant had 
 directed his letters to be sent, has been permitted.'' Again, in the 
 case of infants, substituted service upon the mother, in one case,* 
 and upon the father-in-law in another,^ was ordered to be good 
 service. 
 
 1 3 Hare, 251, 255. ^ Pultenej'^ v. Shelton, 5 Ves. 147; and 
 
 2 5 Beav. 391; and see Heald v. Hay, see Manchester and Stafford Railway 
 ■ 9 \V. R 3G0, V. 0. S.; Hope i'. Carnegie, Company v. How. 17 Jur. 617, V. C. W.; 
 
 L. R. 1 Eq. 126, V. C. S. 15 & 16 Vic. c. «6, § 5, ante, p. 445. 
 
 3 3 Beav. 333; and see Howkins v. Ben- 7 Hunt v. Lever, 5 Ves. 147; but see 
 nett, 1 Gill'. 215; 6 Jur. N. S. 948; andtlie Gatheicole v. Wilkinson, 1 De G. & S. 
 cases cited in the note to Skegg v. Simp- 681; 11 Jur. 1096. 
 
 son, 2 L)e G. & S. 454, 456 ; and as to ser- 8 Baker v. Holmes, 1 Dick. 18 ; and see 
 
 vice of bill, or order of revivor, see Norton Gam urn «. Marshal, ib. 77; S. C. nom. 
 
 V. Hepworth, 1 M'N. & G. 54; 13 Jur. Smith v. Marshall, 2 Atk. 70; Clark v. 
 
 244; Hart v. Tulk, 6 Hare, 618; Forster Waters, V. C. S., cited, 1 Smith's Pr. 378; 
 
 V. Meiizies, 16 Beav. 668; 17 Jur. 657. Hope v. Carnegie, L. R. 1 Eq. 126, V. C. S. 
 
 4 Lane v. Hardwicke, 5 Beav. 222. ^ Tiiompson v. Jones, 8 Ves. 141. 
 6 4 De G., M. & G. 328.
 
 SERVICE OF THE COPY OF THE BILL. 
 
 449 
 
 Whenever an order is made for substituted service, such order 
 must be served at the sam<e time that the bill is served, and it must 
 be stated in the order that it is to be served ; ^ care should also be 
 taken that the ser\'ice is effected in strict accordance Avith the terms 
 of the order, and it will then have the same effect as ordinary ser- 
 vice.^ The ajjplication for the order is made by an ex parte mo- 
 tion ; ^ and must be supported by an affidavit showing what efforts 
 have been made to serve the defendant, and that all practicable 
 means of doing so have been exhausted,* and how the substituted 
 service is proposed to be effected.^ 
 
 It would seem that the Court had no authority, under its original 
 jurisdiction, to serve process upon any defendant, whether a natural 
 born subject or not, who was residing out of the territorial limits 
 of its jurisdiction unless, indeed, the defendant was shown to have 
 absconded to avoid such service.® Such iJower has, however, been 
 conferred on it by statute, in all cases in which a suit has been in- 
 stituted concerning lands, tenements, or hereditaments situate in 
 England or Wales, or concerning any charge, lien, judgment, or 
 incumbrance thereon, or concerning any money vested in any Gov- 
 ernment or other public stock, or public shares in public companies 
 or concerns,^ or the dividends or produce thereof.* 
 
 By the statutes referred to, it is enacted : 
 
 First, that in any such suit, upon special motion, the Court may 
 order and direct that service in any part of Great Jirit:iin, or Ireland, 
 or in the Isle of Man, shall be deemed good service upon the de- 
 fendants, on such terms, in such manner, and at such time as to the 
 Court shall seem reasonable.® 
 
 Secondly, that in any such suit of the same descrij)tion, in case 
 tlie defentlant or defendants shall appear by affidavit to be resident 
 
 Ch. VIII. § 1. 
 
 Application 
 for order : 
 how made. 
 
 Power of the 
 Court to order 
 service out of 
 its tcrritori.al 
 jurisdiction. 
 
 Provisions in 
 the Foreign 
 Process Acts : 
 
 To what suits 
 thev extend ; 
 
 Service in 
 Great IJritain 
 or Ireland. 
 
 Service 
 abroad : 
 
 1 Jones t". Brandoiv<2 Jur. N. S. 437, V. 
 C. \V. For lorm, see Seton, l:i44, No. 4. 
 
 ^ Wilcoxoii V. VV ilkins, y Jur. N. S. 
 74:i; 11 U. K. btib, M. K. ; but see Dicker 
 r. Clarke, 11 W. H. 70o, V. C. K. 
 
 a Keed v. Barton, 4 \V. H. 793, V. C. W. 
 For lorni of motion paper, see Vol. III. 
 
 < Firtli 1-. Hush, U Jur. N. 8.431; 11 \V. 
 H. Oil, v. C. K. ; and see Barker d. Piele, 
 11 VV. li. tjob, V. C. K. 
 
 ^ For form ol allidavit, cee Vol. III. 
 
 •' I'er l^ord Weslbury, \.. C., Cookney v. 
 Anderson, 1 De ti., J. Hi. .S. 3U6, 3b2; y.Jur. 
 N. S. 73ti; and 8<.-e toley r. Maillardet, 1 
 Ue G., J. & S. 3(JU; 10 Jur. N. S. "161; 
 bamuel ». Kogers, 1 l)e G., J. & 8. 3'Jt>; 
 Norris r. Cotteriil, 5 N. K. 2ir>, V. C. W. 
 Where leave wiw given to serve proce!»8 
 out ol the juriMlietioii, the service was 
 usele'-s uiilcH-> tlieilelendaiit entered an ap- 
 pearance, lor no subsetiueiil proceeding 
 could be bused u|)on it. Cookney v. An- 
 Oer-.on, 31 Beav. 402, 4G«; 8 Jur. N. S. 
 1220, 1223; and see note to Shaw v. Lii.d- 
 
 VOL. I. 
 
 say, 18 Ves. 2d ed. 496 ; Fernandez v. Cor- 
 bin, 2 Sim. 544; Davidson v. Marchioness 
 of Hastings, 2 Keen, 60'J, 610; Wliitniore 
 V. liyan, 4 Hare, 612, 615; 10 Jur. 368. 
 
 '' See Ollicial iMaiiager ot the National 
 Association v. Carstairs, 9 Jur. N. S. 955; 
 11 W. li. 866, M. K. 
 
 8 2 & 3 Will. IV. c. 33,§ 1 ; 4 & 5 W^ill. 
 
 IV. c. 82, § 1. 
 
 « 2 & 3 Will. IV. c. 33, § 1. This Act 
 extends to Scotland. Cameron v. Cameron, 
 2 M. & K. 289, 292; Innes v. Alitchell, 4 
 Drew. 141; 1 De G. & J. 423; Maclean v. 
 Dawson, 4 De G. & J. 150; 5 Jur. N. S. 
 663; and see, for cases under this Act, 
 Hasluck V. Stewart, 6 Sim. 321 ; ,'\n<ler3on 
 
 V. Staiher, 10 ,lur. 3^3, l>. (J. ; Turner v. 
 Sowdoii, 12 W. K. 622, V. C. K., where 
 service on an infant was allowed. Suits 
 commenced by summons are within the 
 Acts. Cohen v. Alcan, 1 l)e (i., J. & S. 
 398; 10 .lur. N. b. 531, overruling Lester 
 V. Bond, 1 Dr. & S. 392; 7 Jur. N. S. 53«.
 
 450 
 
 COMrELLING ArPEAEANCE. — PROCEEDINGS IN DEFAULT. 
 
 ovidoiio 
 support 
 
 Service upon 
 receiver or 
 steward. 
 
 Substituted 
 service. 
 
 Cii. VI1I.§ 1. in ;iny spocifiod ]^lnce out of the ITnitod Kinc;(l<)iu of Great Britain 
 and Ireland, (he Court may, u])ou ojteu motion ol'any of the com- 
 plainants in any sueh suit, foumled upon an affidavit or affidavits, 
 and sueh otlier doeuments as may be a})])hcable for tlie purpose of 
 ascertaining the residence of the party, and the particulars material 
 to identify such jiarty and his residence, and also specifying the 
 means whereby such service may be authenticated, and especially 
 ■whether there are any British officers, civil or military, appointed 
 by or serving under her Majesty, residing at or near such place, 
 order that service of the bill ^ upon the party, in manner by the 
 order directed, or in case where the Court may deem fit, u])on the 
 receiver, steward, or other person receiving or remitting the rents 
 of the lands or premises, if any, in the suit mentioned, returnable 
 at siich time as the said Court shall direct, shall be deemed good 
 service upon such party .'^ 
 
 Thirdly, that if it shall be made to a])pear by affidavit that any 
 defendant, in any such suit, cannot by reasonable diligence be 
 personally served with the bill,^ or that, upon inquiry at his usual 
 place of abode, he could not be found, so as to be served with such 
 process, and that there is just ground for believing that such de- 
 fendant secretes or mthdraws himself^ so as to avoid being served 
 ^dth the process of the Court, then and in all such cases, the Court 
 may order that the service of the bill ^ shall be substituted in such 
 manner as the Court shall think reasonable, and dLcect by such 
 order.^ 
 
 Besides the provisions of the Acts above referred to, there is a 
 General Order of the Court which provides, that where a defendant 
 in any suit is out of the jurisdiction, the Court may, upon appli- . 
 cation, supported by such evidence as shall satisfy the Court in 
 what place or country such defendant is or may probably be found, 
 order that a copy of the bill under the stat. 15 & 16 Vic. c. 86, § 3, 
 and, if an answer is required, a copy of the interrogatories may be 
 served on such defendant in such place or country, or within such 
 limits, as the Court shall think fit to direct ; and that such order 
 shall limit a time afler such service within which such defendant 
 is to appear to the bill : such time to depend on the jilace or coun- 
 try witliin which the cojjy of the bill is to be served ; and where 
 an answer is required, such order shall also limit a time within 
 which such defendant is to plead, answer, or demur, or obtain from 
 
 General 
 Order X. 7 
 
 1 The Acts provided for the service of 
 the sub/Mzna to appear to and answer the 
 bill; but now, a properly stamped and in- 
 dorsed copy of the bill must be served. 
 15 & 16 Vic. c. b6, § 3, ante, p. 439-441. 
 
 2 4 & 5 Will. IV. c. 82, § 2; see, for 
 cases under this Act, Godson v. Cook, 
 7 Sim. 519; Parker v. Lloyd, 5 Sim. 508, 
 510; Dodd v. Webber, 2 Beav. 502; Green 
 
 V. Pledyer, 3 Hare. 165, 168; Cox v. 
 Bannister, 8 W. R. 206, M. K. ; Official 
 Manager of the National Association v. 
 Carstairs, 9 Jur. N. S. 955; 11 W. li. 866, 
 M. U. 
 
 3 4 & 5 Will. IV. c. 82, § 2; and see 15 
 & 16 Vic. c. 86, § 5; ante, p. 446; 11 Geo. 
 IV. & 1 Will. IV.c. 36,§§ 3,9; Ord. X.6; 
 2)0st, pp. 456-459.
 
 SERVICE OF THE COPY OF THE BILL. 
 
 451 
 
 the Court fxirther time to make bis defence to the bill ; and that 
 at the time when such copy of the bill shall be served, the plaintiff 
 shall also cause the defendant to be served with a copy of the order 
 giving the plaintiff leave to serve such copy of the bill.^ 
 
 It is to be observed, that the Acts of Parliament before referred 
 to, conferring ui)on the Court of Chancery the power of serving 
 process out of the jurisdiction, apply to suits of a particular kind, 
 and fiirther, that they fetter the exercise of the privilege by certain 
 restrictions ; but the language of the General Order above men- 
 tioned applies to suits of all descriptions, and in some respects dis- 
 jjenses with the provisions which the Legislature had required. It 
 was formerly considered, that the General Order enabled the Court 
 to direct service on a defendant who had neither a domicile nor 
 property within the jurisdiction, and in any suit whatever. This 
 interjtretation of the General Order was acted upon for a long 
 series of years ; ^ but it has been recently overruled, on the ground 
 that the General Order only applies to the cases within the Acts 
 above referred to ; and it has been held, that the statutes ^ enabling 
 the Court to make alterations in forms and mode of proceeding, do 
 not empower the Court to sanction the service of the bill out of 
 the jurisdiction, except in cases within the Acts.* 
 
 Where it is sought to serA'e ihh bill out of the jurisdiction, it is 
 usual, and in most cases desirable, to api)ly for leave to serve in- 
 terrogatories to the bill at the same time ; * indeed, if it should be 
 necessary to take the bill ]}ro confesso against the defendant out 
 of the jurisdiction, it cannot be done unless interrogatories have 
 Iteen served.® 
 
 The ai)plication for leave to eflect service out of the jurisdiction, 
 is made by an ex parte motion, or by summons at Chambers.'' The 
 affidavits in support must show the place of residence at the time 
 the apjilication is made, or as near thei-eto as is practicable ;* and 
 an affidavit showing that the defendant was resident at Calais, 
 seven weeks ])revious]y to the a]»i)]icati()n, was held insuthcient ;^ 
 but the affidavit need not, it seems, sliow more than tlie country 
 in which the defendant resides.^" 
 
 1 Ord. X. 7 (1) (2) (3). 
 
 i Whirniore r. Kyan, 4 Hare, 012, C17; 
 10 .Iiir. .'j*i><; lilfiikiiisiipp V. BItjiikiiisopf), 
 2 I'hil. 1; 1 (J. 1'. Coop. t. (Jott, 20; 8 
 Ikav. 012; .Steeli; v. Stuart, 1 11. & M. 
 7!»3,7!»r); 10. Fur. N. S. IG; Curtisst'. Uiant, 
 9 .lur. N. S. 706, M. Fv. 
 
 8 3 & 4 Vic. c. 94; 6 Vic. C. 5, § 20; 15 
 & 10 Vic. c. »G, § 03. 
 
 ■• ('o</kn<!V V. Anderson, 1 I)e G., .J. & 
 K. SOr,; O.lur. N. S. 730; Folr;y v. Miiil- 
 lardet, 1 |)e G., .1. & S. 3Mj; 10 ,Jur. N. S. 
 101; Samuel V. Ropers, 1 De G , J. cv. S. 
 390; Norris r. Cotterill, 5 N. K. 216, V. (j. 
 W.; Idil see coiiirn, Dninunond v. IJrum- 
 mond, L. H. 2 V.i\. 33.J ; 12 .lur. N. S. 081, 
 V, C. S., aflirined by L. C. & L. JJ. 1 W. 
 
 Ch. VIII. § 1. 
 
 • 1 ' 
 
 Constniction 
 of (he Acts 
 and Order; • 
 
 N. 378 ; Corv v. Jacobsen, 1 W. N. 290, V. 
 C. K.. 
 
 6 Leaman v. Brown, 7 VV. li. 322, V. C. 
 K. ; see /xw^, Cliiip. IX., /nterroaatories. 
 
 8 I'ust, Chap. XI., Taking Bills jrro con- 
 fesso. 
 
 "> For form of order, see Scton,1244, No. 
 6; and (or forms of motion paper and sum- 
 moos, sec Vol. III. 
 
 » I'restoii V. Dickinson, 9 Jur. 919; 7 
 IJeav. Wi, n. 
 
 " Kie^ke v. Buller, 7 Heav. 581. 
 1" Itli'iikiiisopp )'. Hlcnkiiisojij), 8 Bcav. 
 012; 2 I'hil. 1; 1 C. I'. Coop. I. Colt. 20; 
 I'reston v. Dickinson, »^( siij}. ; Diddulph 
 1'. Lord (Jiimoys, 7 I'.euv. 5S0; lO.Iur. 486. 
 For form of ailidavit, see Vol. 111. 
 
 Operation of 
 Order is 
 restricted to 
 suits witiiin 
 the Acts. 
 
 Interrogato- 
 ries should be 
 served at 
 same time. 
 
 Application : 
 how made, 
 and necessary 
 evidence.
 
 452 
 
 COMrELLING ArPEARANCE. rROCEEDINGS IN DEFAULT. 
 
 ('II. VIII. 51. 
 
 Priimi fticie 
 case only 
 need l>o madr 
 out. 
 
 Service 
 iiliixmd on 
 iiitiiiit and 
 person of un- 
 sound mind; 
 
 husband and 
 wife. 
 
 Order giving 
 leave must be 
 served. 
 
 Service : 
 effected. 
 
 how- 
 
 Order fixes 
 time to ap- 
 pear, and to 
 plead, an- 
 swer, or 
 demur, if 
 answer 
 required ; 
 
 Ijut not for 
 demurring 
 alone. 
 
 Principle on 
 which times 
 
 It is not noeossary to sliow, by nirulavit, tliat the ciroiunstances 
 are such as to warrant the order. The (\)urt may h)olv at the 
 jileadings for tli.it jturpose;^ and, il" necessary, may go into the 
 merits of tiie ease : it being always in the discretion of the Court 
 whi'ther to grant or refuse the ajtplieation ; '^ but it acts on ajyrima 
 facie ease being nnide out." 
 
 Leave may be granted to-serve infants,** and persons of unsound 
 mind,^ out of the jurisdiction ; and upon such service, guardians 
 ad lid in will be a)»j)ointe(l ; ami a husband out of the jurisdiction 
 may be served for himself and his wife.*' Where the fact of the 
 marri:ige is in dis]»ute, leave will be granted to serve them sepa- 
 rately." Where a father and liis infant cliildren were living to- 
 gether out of the jurisdiction, it was held, that a separate copy 
 must be served on each.* 
 
 The order giving leave to make the service out of the jurisdiction 
 must be served with the copy of the bill ; " and this requirement 
 is expressed in the order itself ^° If no directions to the contrary 
 are given by the order, the service should be effected by serving 
 the copy of the bill and a co])y of the order on the defendant per- 
 sonally, or by leaving the same with his servant, or some member 
 of his family, at his dwelling-house or usual place of abode," within 
 the limits defined by the order. The order fixes the time after 
 service of the bill within which, the defendant is to appear, and 
 also, if an answer is required, the time after service of the inter- 
 rogatories within which the defendant is to plead, answer, or de- 
 mur, not demurring alone, or obtain from the Court further time 
 to make his defence to the bill ; ^^ but it is not necessary to fix any 
 time for his demurring alone : such time being the same as in cases 
 where the defendant is served within the jurisdiction.^" 
 
 These times are fixed by the registrar; and, as a general rule, 
 
 1 Bletikinsopp v. Blenkinsopp, ubi sup. ; 
 Maclean v. Dawson, 4 L)e G. ifc J. 150; 5 
 Jur. N. S. 66:J; Official Manager of Na- 
 tional Association v Carstairs, Jur. N. S. 
 955; 11 W. K. b66, M. K. ; Steele « Stuart, 
 1 H. & -M. 793; 10 .lur. N. S. 15; Foley v. 
 Maillardet, 1 De G., J. & S. 389; 10 Jur. 
 N. S. 101; Hawarden w. Duiilop, 2 Dr. & 
 S. 155; Norris v. Cotterill, 5 N. K. 215, V. 
 C. W. 
 
 2 Lewis V. Baldwin, 11 Beav. 153, 158; 
 Whitmore v. Kyaii, 4 Hare. 612, 617; 10 
 Jur. 308; Innes v. Mitchell, 4 Drew. 141; 
 3 Jur. N. S. 991; 1 De G. & J. 423; Cook 
 V. Wood, 7 W. K. 424, V. U. K. ; Maclean 
 t! Dawson, 27 Beav. 25; 4 DeG. & J. 150; 
 5 Jur. N. S. 663. 
 
 8 Maclean v. Dawson, ubi sup. ; Meiklan 
 V Cam|.bell, 24 Beav. 100. The plaintiff 
 takes the order at his own risk. Brooks 
 r. .M<jrison, 32 Beav. 652. 
 
 * Anderson v. htather, 10 Jur. 363, L. 
 C; Turner v. Sowxien, 12 VV. K. 522; 13 
 
 W. R 60; 10 Jur. N S. 1122, V. C. K.; 
 S. C. nom. Turner v. Snowden, 2 Dr. & 
 Sm 265. 
 
 6 Biddulph V. Lord Camoys, 7 Beav. 580 ; 
 10 Jur. 485. 
 
 6 .(ones V. Geddes, 9 Jur. 1002, V. C. 
 E.; Steele v. Plomer, 2 I'hil. 782, n.; 1 
 M'N. cSc G. 83. 
 
 ■? Longwortli v. Bellamy, M. R., cited 
 Setoii, 1245. 
 
 ** Jones V. Geddes, ubi sup. 
 
 « Ord. X. 7 (3). 
 1" For form, sec Seton, 1244, No 6. 
 
 11 Ord. X. 1; Braitliwaite's Pr. 33. 
 
 12 Ibid ; Ord. X. 7 (2). The interroga- 
 tories may be served with the bill. Leaman 
 V. Br.jwn, 7 VV. K. 322, V. O. K. 
 
 13 Brown v. Stanton, 7 Beav. 582 ; Pres- 
 ton V. Dickinson, ib, n. ; Blenkinsopp v. 
 Blenkinsopp, 8 Beav. 612; Griiiiing v. 
 Piiohau, 10 Jur. N. S. 60; 12 W. R. 141, 
 M. U ; 33 Beav. 221.
 
 SERVICE OF THE COPY OF THE BILL. 453 
 
 twice the time it ordinarily takes to reach the place where the Ch. Viii. § i. 
 
 defendant is residing is allowed for appearing, and twice that ^ y ' 
 
 time for answering.^ The times so fixed should be inserted in to appear and 
 the indorsement on the bill, instead of the time inserted there when gxed!"^ 
 the bill is to be served within the jurisdiction.^ 
 
 Where a defendant has been served out of the jurisdiction under Defendant 
 this order, he cannot be attached for want of appearance, upon sened abroad 
 
 ..,.,..,.., ^^ ^ cannot be 
 
 his commg within the jurisdiction.'* attached for 
 
 A defendant, on being served with the bill, may enter an ap- ancg^^^^*'^' 
 
 pearance at the Record and Writ Clerks' Office,* whereupon the Defendant 
 
 suit wall be prosecuted against him in the ordinary way ; or he ^^Y ^^'^^ ^ 
 
 may move, on notice to the plaintiff, to set aside such service for service, on 
 
 irregularity.^ Before, however, he can so move, he must enter ^°*^^™S 
 
 what is called a conditional appearance, with the Registrar.^ appearance. 
 
 Where the plaintiff has introduced into the bill statements, as Evidence 
 
 to the subject-matter of the suit, that bring it within the Acts required in 
 
 authorizing service out of the jurisdiction, the defendant may, on motion. 
 the motion to discharge the order, read affidavits disproving such 
 statements." 
 
 All orders, writs, and other proceedings ui)on which process General rules 
 
 of contempt may afterwards be issued, require, in general, what ^^ '^^ .ser%ice 
 
 is called personal service.* The same strictness is not, however, ings: 
 necessary for the service of notice of ordinary proceedings in 
 the cause ; and it will be convenient here to state the manner in 
 which ser\'iee of such proceedings is effected. 
 
 Every solicitor of a party suing or defending by a solicitor, must Where par- 
 cause to be written or printed U])on every writ or summons which f^^'-V'"*' "'' 
 
 T di'tend bv a 
 
 he sues out, and upon every bill,'^ demurrer, })lea, answer, or other solicitor:' 
 pleading or proceeding, and all exceptions which he may leave 
 
 1 Seton, 1245; Chatfield v. Kerchtoldt, 154; Maclean v. Dawson, w^t sup.; Foley 
 9 Hare Ap. 28. v. Miiillaniet, vbi sup. ; but see Hetts v. 
 
 2 Hayries v. Kidffe, 9 Hare Ap 27; 1 Barton, .3 .Fur. N. S. 154, V. C W. The 
 W. U. U'j; Chatfield y. Uerchtoldt,«/ii »!//j. f apiiearatice is entered under an order, 
 Sliarpe r. Hlonduau, 1 W. K. 100, V. C. K., which is obtained on an ex parte motion, 
 cited 9 Hnre Ap. 27. For form of in- or on petition of course at the Hoi's. Hy 
 diir.sement, see Vol. IIF the order the defcndnnl must, by his couii- 
 
 « Hackwood r. I.*)ckerby, 7 De G., M. sel, submit to any process whidi the Court 
 
 & (i 'i'i' \ and see Pentbld u. Kelly, 12 W. mny direct to issue against liiin (ju the 
 
 IJ. 2H<i, y. (j. K. appearance. For the mode of eiiterinj,' a 
 
 ♦ See /w*/, (3hap. X[I[., Appearance. conditionul appearance, see Index, ^I/7Je«>-- 
 
 * Mucleirip. Daw.son, 27 Heiiv. 25; 4 06 «ncf ,- for form of order and appearance, see 
 I'.. Ik .1. 150; 6 .lur. N. S. W-i; OfTiciid Seton, 1240, No. 6; and lor form of raotiou 
 MHua^er of National As-^ociation r'. Car- paper, see \^oi. HI. 
 
 Htair«, 9 .Jur. N. S. 955; 11 \V. li. 866, M. 7 Folev r. .Maillardet, 1 De G., J. & S. 
 R ; Foley r. .Maillanl.-t, 10 .lur. N. S. 34; 389; lo Jur. ,\. 8. 161; and see OfliciMi 
 th. l*;i; 1 !)<■ (;.,.!. vSc .S. 3K9; Steele v. Mamiper of National Association v. Car- 
 Smart, 1 II. iKc M. 79:5; 10 .lur. N. S. 15; stairs, 9 .Jur. N. S. 966; 11 \V. U. 806, 
 nee liraithwaite's I'r. 321, and for forms of M. K. 
 
 notice of motion, and afKdavit In support, * In such cases, personal service is, iiow- 
 
 nce Vol. MI. ever, sometimes dispensed with Kider 
 
 ' M.ickri'th r. Nicliolsm, 19 Ves. 307; r. KiiMer, 12 Ves. 202; Dc Munncville v. 
 
 I»avids'>n r. .M.irchioness of lla^fin^rs, 2 De .Miiriueville. if>. 203. 
 
 Keen, 509; •loini'oii f. I'.arne«, 1 De (). & ^ This includes an information. I'rel. 
 
 S. 129; Uwis V. Baldwin, 11 Ileav. 153, Ord. X. (4).
 
 454 
 
 COMrELLINQ APPEARANCE. 
 
 ■PROCEEDINGS IN DEFAULT. 
 
 Cii. VIIT. §1. 
 
 Solicitor not 
 to bo chaiifxed 
 without au 
 order. 
 
 Notices to be 
 served at so- 
 licitor's office, 
 or address I'or 
 sendee. 
 
 Where par- 
 ties sue or 
 defend in 
 person : 
 
 wUli the Clerks of Roconl mid "Writs to 1)C filed, and upon all 
 instriu'tions wliieli lie may j::ive to tlieiu for any a|)|)earance or 
 other juirpose, liis name or firm, and place of business, and also (if 
 his place of business shall be more than three miles from the 
 Record and Writ Clerks' oftice) another })roper place (to be called 
 his address for service), which shall not be more than three miles 
 from that ofiice, where writs, notices, orders, summonses, warrants, 
 and other documents, ])r()ceedings, and written communications 
 may be left for him. And where any such solicitor shall only be 
 the agent of any other solicitor, he must add to his own name or 
 firm, and ]ilace of business, tlie name or firm, and place of business, 
 of the princi])al solicitor.^ 
 
 A party suing or defending by a solicitor is not at liberty to 
 change his solicitor, in any cause or matter, withottt an order of 
 the Court for that purpose : which may be obtained by motion 
 or petition as of course ; ^ and until such order is obtained and 
 served, and notice thereof given to the Clerk of Records and 
 Writs, the former solicitor is considered the solicitor of the party .^ 
 
 Where a party sues or defends by a solicitor, and no address for 
 service of such solicitor has been written or printed, jiursuant to 
 the directions of the General Order,^ all writs, notices, orders, sum- 
 monses, Avarrants, and other documents, proceedings, and written 
 communications, not requiring personal service upon the party to 
 be aifected thereby, are, unless the Court shall otherwise direct, to 
 be deemed sufficiently served upon the j^arty, if served upon his 
 solicitor, at his place of business ; but if an address for service of 
 such solicitor shall have been written or printed as aforesaid, then 
 all such writs, notices, orders, summonses, warrants, and other 
 documents, proceedings, and written communications, are to be 
 deemed sufiiciently served upon such party, if left for his solicitor, 
 at such address for service.^ 
 
 Every party suing or defending in person, must cause to be. 
 written or printed upon every writ which he sues out, and upon 
 
 1 Ord. Ill 2; and see ante, p. 397. 
 
 2 The application is almost invariably 
 made by petition; see post. Chap XLIV., 
 Solicitors. The application should not be 
 made as of course, when the plaintifl" in 
 a cri'iiitor's suit, whose debt is small, sells 
 his debt after decree. Topping iJ. Searson, 
 2 11. & M. 20'.. For forms of motion pa- 
 per and petition, see Vol. III. 
 
 8 On). III. 3; Davidson v. Le.slie, 9 
 Beav. 104; Wright v. King, ib. 161. This 
 order was held not to apjdj- where the suit 
 was at an eud, and a petition w;is present- 
 ed by a new solicitor for payment out of a 
 fund carried to a separate account. Wad- 
 dilove V. Taylor, 12 .lur. 598, V. €. W. 
 Where there has been any special contract 
 as to employment of solicitor, the order to 
 
 change is not of course. Jenkins v. Bry- 
 ant, 3 Drew. 70; Richards ». Scarborough 
 Miirket Company, 17 15eav. 83. And see, 
 as to this order, Ward v. Swift, 6 Hare, 309, 
 311. Service of notice of motion at solici- 
 tor's address for service held sufficient, 
 although the office was untenanted; the 
 solicitor having absconded, and the party 
 being out of the jurisdiction. Ueuben v. 
 Thompson, 16 Jar. lOOS, V. C T. 
 
 4 Ord III. 2. 
 
 s Ord. III. 4. Service, in a supplemen- 
 tal suit, upon the solicitor in the original 
 suit, has l)een held good servicf. Scott v. 
 Wheeler, 13 IJeav. 239; see also Hart v. 
 Tulk, 6 Hare, 618; Norton « Hempworth, 
 1 .M'N. & G. 54; 13 Jur. 244; Bligh v. 
 Tredgett, 5 De G. & S. 74; 15 Jur. 1101.
 
 SERVICE OF THE COPY OF THE BILL. 455 
 
 every bill,^ demuiTer, plea, answer or other pleading or proceed- Ch. viii. § i. 
 
 ino-, and all exceptions, which he may leave with the Clerks of ""^ y ' 
 
 Records and Writs to he filed, and upon all instructions which he 
 may give to them for any appearance or other purjjose, his name 
 and place of residence, and also (if his place of residence shall be 
 more than three miles from the Record and Writ Clerks' Office), 
 another proper place (to be called his address for service), which 
 shall not be more than three miles from that office, where writs, 
 notices, orders, summonses, warrants, and other documents, pro- 
 ceedino-s, and written communications may be left for him.- 
 
 Where a party sues or defends in person, and no address for How served 
 service of such party has been written or printed, pursuant to the ?'^^^ proceed- 
 direction of the General Order,^ or where a party has ceased to 
 have a solicitor, all writs, notices, orders, summonses, warrants, and 
 other docmnents, proceedings, and written communications, not 
 requiring personal service upon the j^arty to be affected thereby, 
 are, unless the Court shall otherwise direct, to be deemed to be 
 sufficiently served upon such party, if served upon him personally 
 or at his place of residence; but if an address for service of such 
 party shall have been written or printed as aforesaid, then all such 
 writs, notices, orders, summonses, warrants, and other documents, 
 proceedings, and written communications, shall be deemed suffi- 
 ciently served upon such party, if left for him at such addi-ess for 
 service.* 
 
 Where the solicitor of a party dies, the other side may sue out Subpana 
 a subpama against him to name a new solicitor ; ^ and it seems g^iidtor. 
 that substituted service of this auhpo&na will be ordered, in a proper 
 case.® 
 
 Service of all writs, notices, summonses, orders, warrants, docu- Before what 
 merits, and other jiroceedings, not requiring })ersonal service ' upon Jnug^^r^'^*^ 
 the i)arty to be affected thereby, is to be made before seven o'clock made. 
 in the evening: except on Saturday, when it is to be made before 
 two o'clock in the afternoon; and if made after seven o'clock in 
 the evening on any day except Saturday, the service is to be 
 deemed as made on the following day; and if jnade after two 
 
 1 This includes an information. Prel. C Rutcliff v. Iloper, 1 P. Wms. 420; Gib- 
 
 Ord. J0(4). son v. Ingo, 2 I'liil. 402; 12 .hir. 105; 
 
 '»■ Old. III. 6; see Trice r. Webb,2 Hare, Ward v. Swift, 6 Hare, .'Jul), 311 ; Wvatt's 
 
 511, 513; .John-on r. iJarnes, 1 De G. & I'r. 411; Ord. III. (1); Hraithwaite's I'r. 
 
 S. 120; 11 .lur. 2til. Wh.:re the Holicitor 264, 2C5; and see Hiitiin r. Ani<-lil, 1 II. & 
 
 for any narty, or any party Huing or de- M. 715. For form of mbixnia, see Ord. 
 
 feti'liri}; in person, cliaiij;<'H liin residence or Schcd. Iv, No. 5; and Vol. 111. 
 
 Bd'lrem for service, notice tlieieof should I (t\\i&onr.\n\i'i,ubisup. ; Dean v. Leth- 
 
 hf! given to the (Jlerk of Records and bridtfc, 26 Heav. .'J!)7. 
 
 Writs, and also to eaeii solicitor concerned ' Pocuincnts re(|uirinf; personal service 
 
 in the cau«e. liriiitiiwaiie's I'r. 10. i-'or may be served at any hour of the d.iy (<>n 
 
 form of notice, see Vol III. week days), and at any pliice within the 
 
 * Ord. III. 5. jurisdiction of the Court. Urailhwaite'i 
 
 « Ord. III. 6. Tr. 12.
 
 •irn) 
 
 OOMrELLTNG APPEARANCE. — PROCEEDINGS IN DEFAULT. 
 
 (,'11. V11I.$-J. 
 
 Defendant 
 not api)eiirinr 
 to bill, may 
 be served 
 personally, 
 or at his 
 dwellinj^- 
 liouse or 
 oflice. 
 
 ()\'lo('k ill tlio afternoon on Saturday, tlio service is to be deemed 
 as made on the followino: IMonday.' 
 
 Wliere a person wlio is not a ]»arly aj)pears in any pro(H'eding, 
 either before the Court or in Chambeis, service upon the solicitor 
 in London, by whom such party appears, whether such solicitor 
 act as jirincipal or as2;ent, is to be deemed good service, excej)t, in 
 matters of contempt requiring pessonal service.'^ 
 
 Tlie plaintift" is, witliout sj)ecial leave of the Court, at liberty 
 to serve any notice of motion, or other notice, or any petition or 
 summons, personally, or at the dwelling-house or office of any de- 
 fendant, who, having been duly served with a copy of the bill, has 
 not caused an apjiearance to be entered within the time limited 
 for that purpose;^ but such service cannot be made out of the 
 jurisdiction, without special leave.* 
 
 Section^ II. — Proceedings where no Service of a Copy of the 
 Bill can be effected. 
 
 Under 11 
 Geo. IV. & 1 
 Will. IV. c. 
 3G: 
 
 against 
 absconding 
 defendant ; 
 
 Proceedings 
 to take bill 
 jrro cojifesso. 
 Order to 
 appear ; 
 
 In the event of the plaintiff not being able, by any of the means 
 previously mentioned, to effect a due service of the copy of the 
 bill upon the defendant, the plaintiff is entitled to have the bill 
 taken pro confesso, without either appearance by, or service of the 
 copy of the bill upon, the defendant. In order that the plaintiff may 
 ])ursue this course, he must be able to satisfy the Court, by affi- 
 davit, that the defendant is beyond the seas, or that upon inquiry 
 at his usual place of abode he could not be found, so as to be 
 served with process ; and that there is just ground to believe that 
 he is gone out of the realm, or otherwise absconded, to avoid being 
 sensed Avith the process of the Court.'^ And if tlie affidavit shows 
 the defendant to be beyond the seas, the plaintiff must also prove, 
 by affidavit, that the defendant has been in England within two 
 years next before the bill was filed.^ 
 
 Upon ex parte motion supported by such affidavit,'^ the Court 
 may make an order, directing and appointing such defendant to 
 appear at a certain day therein to be named ; and a copy of such 
 
 1 Ord. XXXVII. 2. By Order XLII. 2, 
 any one who uses violence or abusive lan- 
 guage to a person serving the process or 
 orders of the Court, or uses scandalous 
 or contemptuous words against the Court or 
 the process thereof, is liable to be commit- 
 ted, upon motion, on notice to the person 
 so offending. 
 
 2 Ord. III. 7; .Jennings v. Devey, 4Jur. 
 858, V. C. E. With respect to the service 
 of a summons, see jtost, Chap. XXIX., Pro- 
 ctedings at Chambtra. 
 
 2 Ord. III. 8. 
 
 * Green v. Pledger, 3 Hare, 165, 168. 
 As to serving notices out of the jurisdic- 
 tion, see Davidson v. Marchioness of Has- 
 tings, 2 Keen, 509, 516; Hawarden v, 
 Dunlop. 2 Dr. & Sm. 155. 
 
 5 11 Geo. IV. & 1 Will. IV. c. 36, § 3. 
 
 6/6. § 9; and see 15 & 16 Vic. c. 86, 
 §4. 
 
 ■^ tor forms of motion paper and affida- 
 vit, see Vol. III.
 
 WHERE NO SERVICE OF COPY OF BILL CAN BE EFFECTED. 
 
 457 
 
 order must, within fourteen days after it was made, be inserted in Ch. VIII. § 2. 
 the " London Gazette," ^ and affixed to the door of the parish ' r ^ 
 church of the parish where such defendant made his usual abode 
 within thirty days next before such his absenting ; and a copy of 
 such order must also, within the time aforesaid, be posted up in 
 some public place at the Royal Exchange, in London ; and if the in default of 
 defendant do not appear within the time limited by such order, or ''PP*^^^^'^*^ • 
 within such further time as the Court shall appoint, then, on proof 
 made of such pubHcation of such order as aforesaid, the Court be- 
 ing satisfied of the truth thereof, may order the plaintiff's bill to 
 be taken pro confesso? 
 
 1 7 Will. IV. & 1 Vic. c. 45, § 2; Braith- 
 Wflite's Pr. 292, 293. 
 
 2 11 Geo. IV. & 1 Will. IV. c. 36, § 3. 
 For forms of orders under this Act, see 
 Kinf^ford v. Poile, cited Seton, 1249. 
 
 In Massachusett.s, " whenever it shall ap- 
 pear that a defendant resides out of the 
 Commonwealth, the clerk, on application 
 of the plaintiff, nt nny time after the filing 
 of the bill, shall enter an order requiring; 
 such defendant to appear and answer the 
 
 Ebintiff's bill, if in any part of the United 
 tate.s ea»t of the Mississippi River, or the 
 States of Louisiana, Missouri, Iowa, or 
 Minnesota, within one month; if within 
 any other of the United States, or New- 
 Brunswick, Nova Scotia, or Canada, with- 
 in two months; if elsewhere in the United 
 State", or in Great Britain, Ireland, or 
 France, within three months; and if in 
 other foreign parts, within six months, 
 from the rule day next succeeding the date 
 of such order. The order shall state the 
 title of the suit, and shall set forth brieflv 
 the substance of the plaintifl"'s bill. A 
 copy of the order shall be served on such 
 defendant personally or published three 
 times, in (liffcrent week«, within thirty 
 days nfter the date of the order, in some 
 newspaper published in the county where 
 the suit i« pending; and proof of such 
 service sh:ill be made by afRdavit, or in 
 such other manner as the court shall order." 
 R de r>. Chancery Practice. 
 
 In Vermont, when the defendant is out 
 of the .State, so th:it a githjirena cannot be 
 served upon him, the plaintiff mav file his 
 bill in tlie office of the Clerk of the Court, 
 and (ibtain an order of publication, (lenl. 
 St«. of Vt. c. 29, § 21; Howe r. Willard, 
 40 Vt. 6.54, 6.09. 
 
 Tliere are, undoubtedly, provisions 
 made in otiier States for giving notice to 
 non-resident defendants, and takinc t)illg 
 as confessed again'-t them upon their )iiin- 
 Bppearancp. New Y<irk, sci- 1 I'arb. (,'h. 
 Pr. 92-9ti; .Jermain r. Uaii(;doii, 8 Piiige, 
 41; Ya'atx* V Meeker, ib G06; (Jornins; v. 
 Baxter, 6 I'aigo, 178; (,'oiniecticut Central 
 M'lriuf Co. ?•. Iliirtshorrie, 3 Conn. 198. 
 
 Non-resident infants (lefeiid'ints must 
 have notice giveu them of tlie pendency 
 
 of a suit against them by publication, as 
 in the ca«e of adults. Walker v. Hallet, 1 
 Ala. (N. S.) 379; Dunning v. Stanton, 9 
 Porter. 513; Coster i'. Bank of Georgia, 24 
 Ala. 37; Sturges v. Longworth, 1 Ohio 
 (State), 544. 
 
 In New York, where there is an infant 
 absentee, the course under the statute 
 must be pursued; and on the expiration 
 of the time fixed for his appcnratice, if no 
 one applies in his behalf, the plaintiff may 
 move, as in ordinary ca«es. for a guardian 
 ad litem. Ontiirio Bank v. Strons, 2 Paige, 
 301. Proceedings may also be had under 
 the statute by publication, where the in- 
 fant is concealed. Mortimer v. Copsev, 1 
 HofT. Ch. Pr, 194. And the Court "has 
 directed the same course to be pursued 
 where the defendant was a resident of 
 another State, and a lunatic. Otis v. 
 Wells, 1 Hoff. Ch. Pr. 194. 
 
 The statutes authorizing proceedings 
 against absent defendants and unknown 
 heirs, upon constructive notice by publi- 
 cation, must be strictlv pursued. Brown 
 V. Wood, 6 J. J. Marsh. 11, 14; Hunt i'. 
 Wicklif!e, 2 Peters, 201; Lingan v. Hen- 
 derson, 1 Bland. 236; Miller v. Hall, 3 
 Monroe, 242; Tevis i\ Richardson, 7 Mon- 
 roe, 654 ; see Karr v. Karr, 4 C. E. Green 
 (N. J.), 427; Oram v. Dennison,2 Beasley 
 (N. J.), 438. 
 
 Where the statute directs an order of 
 publication to be certified by the printer 
 in whose paper the order has been pub- 
 lished, a certificate must be made by the 
 printer or projirietor. and not by a mere 
 editor. Brown v Wood, 6 .1. J. Marsh. 
 11, 19; Butler v. Cooper, 6 J. J Marsh. 
 27, .30; Brodie v. Skelton. 6 Eng. 120; 
 Sprapuc V. Sprague, 7 J. J. Marsli. 331; 
 A certificate of publication must show 
 when, and in wlint paper the order was 
 published. Hopkins v. (Miiybrook, 5 .1. .1. 
 Slarsh. 234; see Swift v Stebbins, 4 Stew. 
 & Port. 84. Where an order of publica- 
 tion has not been returned, an entry on 
 the record that it was proved to hav(; been 
 diilv executed, is insiillicicnt evidcnice of 
 publication to •authorize the rendition of 
 a decree. Green w. M'Kinney, .1. J. 
 Marsh. 193, 197; but seo contra, Swift ».
 
 458 
 
 COMPELLING APPEARANCE. — PROCEEDINGS IN DEFAULT. 
 
 Ch. VIII. § -2. The Gth rule of the 10th Order applies to the same cu'cumstances 
 as the j)rovisions of the Act hist stated; the affidavits whicli the 
 
 
 W" 
 
 Stehbins, 4 Stew. & I'ort. 447. It is not 
 sufliciont that an order of iiuhliciitioii is 
 hnd ill a Cliaiu-ory i-ause; proof of the 
 >uhHcntii)ii imist also bo made. Moore r. 
 iVrijrht. 4 Stew. .S: Tort. 84. The pro- 
 ceeding Ity publieation on thejiround that 
 the defendant does not reside in the State, 
 does not apply to tliose.sneh as mariners, 
 ■who are toniporarily absent in tlieir voca- 
 tion. M'Kim V. Ddoin, 3 Hhuid, 407; 
 Wasli r. Heard, 27 Miss. (5 Cush.) 400. 
 Publication of notice, as in the case of a 
 non-resiilent defendant, is of no effect 
 •whatever, if the defendant in fact be not 
 a non-resident. Snowden v. Snowden, 1 
 Bland, 550; see Jermain v. Langdon, 8 
 Paige, 41; Evarts v. Beeker, -8 Paige, 
 506. 
 
 In Alabama, notice to absent defend- 
 ants must be publisiied on the court-honse 
 door as well as in the newspaper. Batre 
 t'. Auze, 5 Ala. 173. So in Virginia, Mj-- 
 rick t'. Adams, 4 Munf. 366. So in Mis- 
 sissippi. Zeeharie i>. Bowers, 3 Smedes & 
 M. 641. 
 
 In Kentucky, by Act of Feb. 2, 1837, a 
 ■warning order and traverse were substi- 
 tuted for publication of notice against non- 
 resident defendants. Stump v. Beatty, 8 
 Dana, 14. A warning order is construc- 
 tive notice to a non-resident of the pen- 
 dencv of the suit. Chiles v. Boon, 3 B. 
 Hon." 82. 
 
 In New Jersey, where any of the de- 
 fendants reside in the State, and are served 
 with process, it is not necessary, imless 
 under special circumstances, that the order 
 for the appearance of absent defendants 
 should be published in an}' newspaper out 
 of the State. Foreign publication is re- 
 quired only where all of the defendants 
 reside out of the State. Wetmore v. 
 Dver, 1 Green Ch. 386; Oram v. Denni- 
 son, 2 Beasley (N. J.), 438. 
 
 A decree against non-resident defend- 
 ants upon whom process has not been 
 served, or proof of publication made, is 
 erroneous. Gale v. Cl-'irk, 4 Bibb, 415. 
 But a decree regularly made against ab- 
 sent defendants, will not be set aside of 
 course, on their coming in and answering, 
 nor unless the justice of the case requires 
 it. Dunlap v. M'Elvov, 3 Litt. 269; see 
 Pike V. McBratney. 15 111. 314. 
 
 In New York, where a defendant is pro- 
 ceeded against as an absentee, he is en- 
 titled of course without an affidavit of 
 merits, at any time before a sale under the 
 decree, to come in and make his defence, 
 if he has an}', upon payment of such cost 
 as the Court may deem reasonable. .Jer- 
 main V. Langdon, 8 Paige, 41; Evarts u. 
 Beeker, 8 Paige, 506. 
 
 In such case it i« not necessary to vacate 
 the decree in the first instance; the decree 
 may be permitted to stand until the valid- 
 ity of the defendant's defence is ascer- 
 
 tained, and proceedings for this purpose 
 may be had in the same manner as if the 
 dem'R had been opened or vacated. Jer- 
 main I'. Lansdon, nhi siijyrn. 
 
 Whore a defendant, who has a li.xed and 
 notorious domicile within the State, is pro- 
 ceeded against as an absentee, it is irreg- 
 ular, and if he ai)plies the first opportunity 
 after he has notice of the proceedings 
 against him and before a sale under the 
 decree, he will be let in to defend of 
 course, and without costs. Jermain v. 
 Langdon, 8 Paige, 41 ; Evarts v. Beeker, 
 ib. 506. 
 
 In order to obtain a decree against a 
 non-resident defendant, who does not apt- 
 pear, and who has not been personally 
 served with process, the report of a Mas- 
 ter as to the truth of the allegations con- 
 tained in the bill is necessary. Corning v. 
 l$axter, 6 Paige, 178. And the reference 
 to a Master as to the rights of an absentee, 
 must be bad, although there are other de- 
 fendants who j )in and contest the claim 
 of the plaintili'. Ibid. 
 
 In Erickson v. Nesmith, 46 N. H. 371, 
 377, Sargent J. said: "We find in all 
 the elementary books, rules for making 
 extraordinary or substituted service on 
 parties out of the jurisdiction, but upon 
 examination, we tind that the statutes 
 authorizing such service have reference to 
 those called absentees, who have a legal 
 residence in the State or country where 
 the cause is pending, but who have left to 
 avoid personal service or for some other 
 cause, but who are still considered as in- 
 habitants of such State or country, and 
 where service on tlie attorney or agent of 
 the party is held to be good service on 
 the principal, under the peculiar circum- 
 stances of the case. See Jermain v. Lang- 
 don, 8 Paige, 41 ; Evarts v. Beeker, 8 
 Paige, 506. But where no attachment of 
 property has been made within the juris- 
 diction, and where the Court can make no 
 actual service of process, and where the 
 party residing in another State refuses to 
 submit to the Jurisdiction of the Court, 
 we know of no way to acquire such juris- 
 diction over the person. A statute could 
 not give it any more than a rule of Court. 
 The legislature have no more jurisdiction 
 to make laws for the inhabitants of other 
 States, while remaining there, than the 
 Court has to execute them upon such in- 
 habitants. Hissell V. Briggs, 9 Mass. 468; 
 Kangley v. Webster, 11 N. H. 299 and 
 cases cited. This subject has recently 
 been pretty full}' considered by the Su- 
 preme Court of the United States in Bald- 
 win V. Hale, 1 Wallace U. S. 232, and 
 Baldwin v. Bank of Newbury, 1 Wallace 
 TJ. S. 234, and bv this Court in Rank v. 
 P.utler, 45 N. II. 236, 239." See Stephen- 
 son V. Davis, 56 Maine, 75, 76 ; Spurr v. 
 Scoville, 3 Cush. 578; ante, 149 note.
 
 WHERE NO SERVICE OF COPY OF BILL CAN BE EFFECTED. 
 
 459 
 
 order requires are very nearly the same as those necessary under 
 the Act ; but the order only enables the plaintiiF to obtain an ap- 
 pearance to be entered for the defendant, and does not, like the 
 Act, authorize the bill to be taken pro confe,sso at once. The 
 Order, however, dispenses with the necessity of having the notice 
 posted up at the Royal Exchange, or affixed to the door of the 
 parish church. It is as follows : " Where the Court is satisfied, by 
 sufficient evidence, that any defendant has been Avithin the juris- 
 diction of the Court, at some time, not more than two years ^ be- 
 fore the bill was filed, and that such defendant is beyond the seas, 
 or that upon inquiry at his usual place of abode (if he had any), 
 or at any other place or places where, at the time when the bill 
 was filed, he might probably have been met with, he could not be 
 found, so as to be served with a copy of the bill under the statute 
 15 «& 16 Vic. c. 80, § 3, and that, in either case, there is just ground 
 to believe that such defendant has gone out of the realm,^ or other- 
 wise absconded to avoid being served with such copy of the bill 
 or with other process,* the Court may order that such defendant 
 do appear at a certain day, to be named in the order; and a copy 
 of sucli order, together with a notice to the effect set forth at the 
 end of this rule, may, witliin fourteen days after such order made, 
 be inserted in the 'London Gazette,' antl be otherwise published 
 as the Court shall direct ; and where the defendant does not ap- 
 pear within the time limited by such order, or within such further 
 time as the Court may appoint, there, on proof made of sucli pub- 
 lication of the said order, the Court may order an ajijiearance to 
 be entered for the defendant, on the application of the plaintiff." 
 
 The notice referred to in the rule is in the following terms: 
 Notice. "A. B., take notice, that if you do not appear pursuant 
 to tlie above order, the jdaintiff may enter an ajjpcarance for you, 
 and the Court may afterwards grant to the plaintiff such relief as 
 he may appear to be entitled to on his own showing." * 
 
 Application under the General Order is made by an ex parte 
 motion,^ supported by an affidavit or affidavits, which should follow 
 th(^ language of the General Order as far as possible." One calen- 
 dar month from the date of the order is generally limited as the 
 time for apf»earance ; the limitation of time within which the ad- 
 vcrtiscnients of the order in any newsj>apers, other than tlie "Lon- 
 <lon (iazette," are to be inserted, is optional; and they all may be 
 
 CH.VIir.§2. 
 
 Order to take 
 bill pro con- 
 fesso, under 
 Ord. X. C: 
 
 terms of the 
 rule; 
 
 Notice there- 
 under. 
 
 How applica- 
 tion made, 
 and nix-essary 
 evidence. 
 
 ' Tlmrlow V. Trcehy, 27 Rcav. 624. 
 
 ' It is not necestarv to show that he 
 ha? ab<icoiid)-d to iivoid service in the jiar- 
 tifiiliir fuif. ISarton v. Whitconihc, 10 
 Hrav. 205: IT.Iur. HI; Allen v. Loder, 15 
 Jur. 420, V. C. I.d. C. 
 
 » Cope V. Kussell, 2 Phil. 404; 12 Jur. 
 
 105; and see Crosse v. Crosse, 6 Jur. N. 
 S. 36r, ; 8 W. K. 338, V. C. K. 
 
 < Ord. X. 6. For form of order see So- 
 ton, 1248, No. 8. 
 
 '• I'or form of motion paper, see Vol. 
 III. 
 
 c For form of affidavit, see Vol. III.
 
 400 
 
 COMPELLING APrEARANCE. — niOCEEDINGS IN DEFAULT. 
 
 Cit. yill.§3. (lirectod to he insortod williin fourteen" days.^ Tlie sul)se(]uoiit 
 order is also made u])on an e.v parte inotioii,'- suj)jiorted by tlie pro- 
 ♦luction of tlie Gazette, and any newspapers in Avliich the former 
 order has been inserted, and of the Reeord and Writ Clerk's cer- 
 tificate that no appearance has been entered. 
 
 Appearance 
 forili'tbndaiit, 
 bv dct'ault : 
 
 where service 
 witliin tlie 
 jurisdiction; 
 
 where with- 
 out the 
 jurisdiction. 
 
 Within what 
 time, where 
 service within 
 the jurisdic- 
 tion. 
 
 Section III. — Proceedings by the Plaintiff, where Service of the 
 Copy of the Pill has been effected. 
 
 If tlie defendant (not being an infant, or a person of unsound 
 mind) neolects to appear, within the time mentioned in the in- 
 dorsement thereon, to a bill which has been duly served on him 
 within the jurisdiction of the Court, an appearance may be entered 
 for him on the application of the plaintiif;* or the plaintiff may 
 (though this is now an unusual course)^ compel him, by utta(;hmeiit 
 or other process, to aj)))ear. 
 
 Where the bill has been served out of the jurisdiction, and the 
 defendant has not entered an appearance within the time allowed 
 by the special order under which the service was effected, an ex 
 p>aHe application, by motion for leave to enter an appearance for 
 him, must be made by the plaintiff.^ The application must be sup- 
 ported by an affidavit of due service of the copy of the bill and 
 copy of the order, and by the Record and Writ Clerk's certificate 
 of no appeai-ance having been entered by the defendant;® and the 
 Court may proceed on such service as if duly made within the 
 jurisdiction.'^ 
 
 If the bill has been served within the jurisdiction, it is provided 
 by the General Order,^ that where any defendant, not appearing 
 to be an infant or a person of weak or unsound mind unable of 
 himself to defend the suit,^ is, when within the jurisdiction of the* 
 Court, duly served with a copy of the bill under the statute 15 & 
 16 Vic. c. 86, § 3, and refuses or neglects to appear thereto within 
 eight days after such service, the plaintiff may, after the expiration 
 of such eight days,^*' and within three weeks " from the time of such 
 
 1 Seton, 1248, 1249. If the advertise- 
 ments cannot be inserted within fourteen 
 davs, the Court will extend the time. 
 Dickers. Clarke, 11 W. R. 870, V. C. K. 
 As to the proprietj' of limitinjr, by the order, 
 a time to answer, see Braithwaite's I'r. 
 336, n. 
 
 2 Hawkins v. Gathercole, 3d Nov., 1851, 
 cited 1 Smith's I'r. 380. For form of mo- 
 tion paper, see Vol. III. 
 
 3 Ord. X. 3, 4. 
 
 4 Hackwond v. Lockerby, 7 De G., M. 
 &, G. 238; and see poit, p. 462. ' 
 
 6 For form of motioij paper, see Vol. III. 
 
 6 4&5Will.IV. 0.82, §1; Urd.X. 7(4). 
 
 For form of order to enter appearance, see 
 
 Seton, 1248, No. 2; and for form of affida- 
 vit, .see Vol. III. 
 
 7 4 & 5 Will. IV. c. 82, § 1. 
 
 8 Ord. X. 4. 
 
 3 An appearance by the plaintiff for a 
 person tliu.sinca[)acitated isiriefiular and of 
 no validity. Ord X 5; Leese v. Knifiht, 8 
 Jur. N. S. 1006; 10 W. R. 711, V. C K. 
 
 1" The day of service is excluded in the 
 computation of the eight days and three 
 weeks. 15 & 16 Vic. c. 86, Scbed. ; Ord. 
 XXXVII. 9. ■ 
 
 11 Where the plaintiff accidentally omit- 
 ted to enter the appearance, the (Jourt ex- 
 tended the time. Clarkson v. Eldiidge, 8 
 W. K. 466, V. C. K.
 
 WHERE THE COPY OF THE BILL HAS BEEN SERVED. 
 
 461 
 
 ser\-ice, apply to the Record and Writ Clerk to enter an appearance 
 for such defendant ; and no appearance having been entered, the 
 Record and Writ Clerk is to enter such appearance accordingly, 
 upon being satisfied, by affida\dt, that the copy of the bill was duly 
 served. And after the expiration of such three weeks, or after the 
 time allowed to such defendant for appearing has expired, in any 
 case in which the Record and Writ Clerk is not thereby required 
 to enter such appearance, the plaintiff may apply to the Court for 
 leave to enter such appearance for such defendant ; and the Court, 
 being satisfied that the coi)y of the bill was duly served, and that 
 no appearance has been entered for such defendant, may, if it so 
 thinks fit, order the same accordingly. 
 
 Service of an amended bill, on the sohcitor of a defendant 
 who has appeared to the original bill,^ is due service within the 
 meaning of tlie General Order above referred to, Avhether the 
 defendant, at the time of such service is, or is not, within the ju- 
 risdiction ; 2 and the order applies where an order to revive has 
 been served- on a new defendant ; ^ it also applies where substi- 
 tuted service has been etiected, under an order obtained for that 
 purpose.* 
 
 An application for leave to enter an appearance, where the three 
 weeks have expired, or the bill has not in the opinion of the Record 
 and Writ Clerk been duly served, may be made by ex parte motion 
 to the Court, or by ex. parte summons at Chambers, supi)orted, in 
 either case, by an affidavit of service,* and by the Record and Wlit 
 Clerk's certificate that no appearance has been entered by the de- 
 fendant ; this certificate should bear even date with the application, 
 but should be besi)oken the day before." The order is drawn up 
 by the Registrar.'' If any delay in making the application is not 
 satisfactorily explained, the Court or Judge may require notice of 
 *the motion to be given to the defendant, or the bill to be re-served ; * 
 and in such a case, an order has been made giving leave to enter 
 an appearance at the expiration of ten days unless the defendant 
 
 CH.Vin.§3. 
 
 Special leave 
 to enter 
 appearance : 
 when neces- 
 sary. 
 
 After service 
 of amended 
 bill on 
 defendant's 
 solicitor; 
 
 after service 
 of order to 
 revive ; 
 
 or substituted 
 service. 
 
 Special leave 
 to enter 
 appearance : 
 how ob- 
 tained. 
 
 1 Under Ord. IX. 21; see ante, p. 447. 
 
 2 Zuluetai'. Vlnent, 3 M'N. & (i. 246; 
 
 16 Jiir. 277, overrulirif; Marquis of Hert- 
 ford V. Suisse, 13 Sun. 4Hy; i* Jur. 1001; 
 Sewtll V. Godden, 1 De <;. & S. 120; 11 
 Jur. 200 ; and nee .Steele v. (jordun, 3 W. 
 B. l&H, V. C K. As to ai)[)earance to an 
 amended bill, nee Index, Aji/nuranct; and 
 Chap. Xlil., AjijieuniHCt ; and also bruiih- 
 iraiie'H .Manual, ir/J. 
 
 8 Kor^ter v. ,\len/.i<;i, 10 IJeav. 568; 17 
 Jur. 007; Cro"R v lliomas, 10 IJcav. 5'J2; 
 
 17 Jur. 330. It i-i not, however, usual, in 
 practice, for the pluintilf to enter an ap- 
 pearance, by delault, in such a ca^e. 
 
 * WUcoxono. VVilkins,9Jur.N.S.742; 
 
 11 W. R. 868, M. R.; but see Dicker i-. 
 Clarke, 11 VV. R. 765, V. C. K. 
 
 6 For forms of motion paper, summons, 
 and affidavit, see Vol. III. 
 
 6 J{iaitlnvaiti:'s I'r. 334. A fee of 4*., 
 by a < 'lianctry fee fuml stamp, is payable; 
 Kegul. to Ord". Sclied 4. 
 
 ' l*'or form, see Seton, 1247, No. 1. 
 
 8 Kadford v. Roberts, 2 Hare, "JO ; 6 Jur. 
 1080; Alorf^iin v. Morgan, 1 Col. 228; Ed- 
 ninnds v. Nicliol, lienv. 334; Uradstock 
 V. Whiitley, 7 IJeav. 340; Totty v. Ingleby, 
 ib. 5U1; Walker f. Hur.^t, 13 .>im. 4:<0 ; 
 Jur. 1002; l»evenisli v. Di.'venish, 7 .liir. 
 841, L. C. ; Uointon v. I'arkinson, ilj. 307, 
 V. C. K. 15.; and see liurton v. Tebbutt, 1 
 W. N. 208, V. C. S.
 
 462 
 
 COMrELLING APPEAUANCE. 
 
 PROCEEDINGS IN DEFAULT. 
 
 Cn. viii.§n. 
 
 Appearance : 
 how entered. 
 
 Attachment 
 for want of 
 appearance, 
 
 cannot be is- 
 sued without 
 special order. 
 
 Mode of 
 prosecuting a 
 contempt : 
 
 Process to be 
 duly exe- 
 cuted; 
 Unexecuted 
 process may 
 be aban- 
 doned. 
 
 appeared in the mean lime, on tlio plaintift' undertaking to serve 
 the defenchint with the c>rder within six. days.^ 
 
 Where a hill was tiled against an officer of the Crown, wlio re- 
 fused to enter an appearance, on the ground that the Court had 
 no jurisdiction to entertain the suit, leave was given to enter an 
 a])pearance for luni.'^ 
 
 An appearance by the plaintiff for the defendant is entered by 
 filling ui> a 7^/vw»}>c,^ and leaving the same with the Record and 
 Writ Clerk, together with an oilice co])y of the affidavit of service,* 
 or, if special leave has been obtained, the order authorizing the ap- 
 pearance to be entered. Any number of defendants may be in- 
 chided in one p)-wcipe.^ The plaintiff need not give notice of liaving 
 entered the appearance.* 
 
 If, however, the plaintiff does not choose himself to enter an ap- 
 pearance for the defendant, it was formerly comjietent for him to 
 proceed, as of course, to compel the defendant, by attachment, to 
 appear ; "^ but this cannot now be done without a special order of 
 the Court,* and the practice is virtually abolished.^ 
 
 As, hoAvever, the practice of compelling appearance by attach- 
 ment is not absolutely abolished, it will be convenient here to state 
 the mode of prosecuting a contempt. A suitor prosecuting a con- 
 tempt, must use his best endeavor to procure each process to be 
 duly served and executed upon the i)arty prosecuted : otherwise 
 he will lose the benefit of the process returned, and have to ])ay 
 the costs ; ^° he must not make out process into a county in which 
 he knows that the jjarty prosecuted is not ; " but he may abandon 
 any unexecuted process he has issued, and issue fi-esh process, if 
 otherwise in a i)Osition so to do.^*^ 
 
 1 Husham v. Dixon, 1 Y. & C. C. C 203 ; 
 and see cases, ib. n. 
 
 i Felkin v. Lord Herbert, 1 Dr. & S. 608; 
 8 Jur. 9 N. S. 90. 
 
 3 For form, see Vol. III. 
 
 4 For form, see Vol. III. As to the costs 
 of such appearance, see Ord. XL. 16 ; and 
 as to a subsequent appearance by the de- 
 fendant, see Ord. X. y,post, p. 479. 
 
 6 IJraithwaite's I'r. 325. The following 
 fees are payal)le, in Chancery fee fund 
 stamps, on entering appearances: if not 
 more than three defendants, 7s ; if more 
 than three, and not exceeding six, defend- 
 ants, 14s. ; and the same proportion for 
 every like number of defendants. Wegul. 
 to Ord. Sched. 4. In this computation, 
 husband and wife are regarded as one per- 
 son. Uraithwaite's Pr. 325. 
 
 6 Uraithwaite's Pr. 337. If the appear- 
 ance is, by mistake, entered by tin; plain- 
 tiff's solicitor, as if concerned for the 
 defendant, it may be withdrMwn and en- 
 tered as Ijy the plaintiff; actibid.; and post, 
 Chap. XIll., ApfJburance. 
 
 "! Mussina v. Bartlett, 8 Porter, 277. 
 The general mode of compelling obedience 
 to the orders of the Court, is by attach- ' 
 ment. Matter of O'Reillys, 2 llogan, 20. 
 Jt always rests in the sound discretion of 
 the Court, whether the rule for an attach- 
 ment shall be absolute, or nisi, though the 
 latter is the usual and safer course. Mat- 
 ter of Vanderbilt, 4 .John. Ch. 58. 
 
 « Old. X. 10. The application will be 
 refused, unless the plamtiff can show a 
 sulHcient reason for adopting this course of 
 proceeding. Hackwood v. Lockerby, 7 De 
 G.. M & G. 238. 
 
 9 I'er V. C. Kindersley, Felkin v. Lord 
 Herbert, 1 Dr. & S. 608; 8 .lur. N. S. 90. 
 
 10 Old. XXX. 1. 
 
 11 IJoschetti V. Power, 8 I5eav. 180, 184; 
 Zulueta V. Viiient, 15 IJeav. 273; 16 Jur. 
 631; see, however, Hodgson v. Hodgson, 
 23 Ueav. 604. 
 
 12 Andrews -v. Walton, 1 Phil. 619 ; 
 Braithwaite's Pr. 147.
 
 WHERE THE COPY OF THE BILL HAS BEEN SERVED. 
 
 463 
 
 It seems that in ordinaiy cases a plaintiff may, at the same time, 
 sue out two or move attachments against the same defendant into 
 different counties ; but only one of them must be executed ; other- 
 wise the party would be Ualile to an action. Thus, where a de- 
 fendant being in contempt, the plaintiff sued an attachment into 
 Kent, and another into London, and arrested the defendant upon 
 each : upon this being showTi to the Court, costs were ordered to 
 be taxed by the Master, for the irregularity and vexation ; but, in 
 regard that the plaintiff was poor, the Court, upon his motion, 
 ordered the costs to be paid the defendant, out of a sum of 600^. 
 decreed to the plaintiff, and resting in Court ; and the defendant 
 was set at Uberty, without entering his appearance with the Reg- 
 istrar: for the Court said, none should take advantage of his own 
 wrong.^ 
 
 An attachment should be directed to the Sheriff or other officer 
 of the county or jurisdiction wherein the party, against whom the 
 writ is issued, is likely to be found.^ If the defendant resides in 
 the county palatine of Lancaster or of Durham, the attachment 
 must be directed to the Chancellor of the county palatine, or his 
 deputy, commanding him to issue his mandamus to the sheriff of 
 the county to attach the party;" and, to enforce obedience, it is 
 necessary to obtain an order upon the Chancellor to return the 
 writ, and afterwards an order u2)op the sheriff to return the man- 
 damus.'' Where the defendant is in a city or town that is a county 
 in itseltj the wi-it must be directed to the sheriff of the county of 
 the city or town ; ^ and if the party is already in prison, the writ 
 must, nevertheless, be directed to the sheriff: who will lodge it 
 with the keeper or jailer, as a detaiuer against such party.^ 
 
 According to the old practice of the Court, an attachment, as 
 well as all other process of contempt, must have been made re- 
 tuiTiable in .Term time;'' and it was also requisite, where it Avas 
 intended to proceed to a sequestration, or to take a bill ^>ro con- 
 fesso, that there should be tifteen days between the teste (or date) 
 and the return of the writ : unless the defendant lived within ten 
 miles of London, in Avhicli case, an order might be obtained, by mo- 
 tion or petition of course, to make the several processes returnable 
 immediately." With the view, however, to save the expense of 
 
 Cn.VIII §3. 
 
 By attach- 
 ment: 
 
 only one 
 attachment 
 should be 
 executed, 
 though more 
 may be 
 issued ; 
 
 To whom 
 directed. 
 
 When return- 
 able. 
 
 > Wyatt's Pr. 48. 
 
 2 Hraiiliwaite's I'r. 158. In London, where 
 there arc two .slierilfs, if one of them is an 
 interested part}-, tlie writ should be direct- 
 ed to the other; iind where both, or tiic 
 dole shenlF in otiier cases, are interested, it 
 »hnuld be directed to tlie coroner, lb. 101. 
 For forms of directions of writs, see Vol. 
 III. 
 
 ' Braithwaitc's Pr. 159; and see form in 
 Vol. III. 
 
 * See jwet, p. 470. 
 
 c Since the 18 & 10 Vic. c. 48, such pro- 
 cess as would otherwise have been direct- 
 ed to the Lord Warden of the Cinque Ports, 
 is directed U> tlie SherifTof Kent. 
 
 6 Trotter v. Trotter, .lac. 0.3:3; and sec 
 }Kist, p. 4'iO. Por forms of directions of 
 writ'*, see Vol. HI. 
 
 ' llinde, 100. 
 
 8 Ibid.
 
 464 
 
 COMPELLING ArPEARANCE. 
 
 PROCEEDINGS IN DEFAULT. 
 
 ('II. VIII.5.!. 
 
 Statuton- 
 prvvisioiis. 
 
 If returnable 
 in Term time, 
 but not im- 
 mediately, it 
 must be on a 
 return dav. 
 
 By whom 
 prepared. 
 
 Form. 
 Indorsement. 
 
 How issued. 
 
 tlio order for a Avi-i( returnable immediately, in a town cause, and 
 also to get rid ol" the delay in the process occasioned by that pro- 
 ceeding, it is provided by the 11 Geo. IV. & 1 Will. IV, c. 80, 
 § 1;'), rule o, "that tlie party j)roseeutiug any contempt shall be at 
 liberty, without order, to sue lorth the several writs in process of 
 contempt, returnable immediately, in case the party in contempt 
 resides or is in London, or within twenty miles thereof; and that, 
 in other cases, the party jirosecuting a contempt shall be at liberty, 
 Avithout order, to sue forth such several writs, returnable in vaca- 
 tiouj provided that there be fifteen days between the teste and the 
 return of each of such writs." ^ The effect of this provision is, to 
 extend the power of issuing attachments, and other process, re- 
 turnable in vacation, to all cases : with the restriction, that where 
 the party resides above twenty miles from London, there shall be 
 fifteen days between the teste and the return ; and to permit such 
 process to be issued without a previous order to that effect. 
 
 It is to be observed, that where an attachment is issued not re- 
 turnable immediately, but of which the return must take place in 
 Term time, it must still, as before, be made returnable on a general 
 return day ; thus, when the last of the fifteen days required by the 
 above rule of the 11 Geo. IV. & 1 Will. IV. c. 36, falls in Term 
 time, the attachment must be made returnable on one of the gen- 
 eral return days of the Term occuri'ing after the expiration of the 
 fifteen days." It was formerly considered, that an attachment 
 could not have a longer return than the last return of the Term 
 following that in which it was tested/ if made returnable "imme- 
 diately," it was only in force until such last return of the following 
 Tenn ; and if executed afterwards, its execution was liable to be 
 discharged for irregularity ; but it appears that there is now no 
 such rule in jn-actice.^ 
 
 A writ of attachment is made out by the solicitor or party 
 prosecuting the contemj^t,* who must indorse the name and place 
 of business or residence, and address for service (if any) thereon, 
 as in the case of other proceedings.^ 
 
 The foiin of the writ is in all cases the same ; but it must bear 
 an indorsement, stating the particular nature of the contempt in 
 respect of which it is issued.^ The names of three, but not more, 
 I)ersons can be inserted in one writ. The writ must be tested on 
 the day on which it is issued ; it is sealed at the Record and Writ 
 
 1 Braithwaite's Manual, 199 ; Wroe v. 
 Clayton, IG bim. 183; 12 Jur. 321; ijeton, 
 1231. 
 
 '•i Seton, 1231; Braithwaite's Pr. 153. 
 For list of general return daj's, see Vol. III. 
 
 8 Wroe V. Clayton, 16 Sim. 183; 12 Jur. 
 331. 
 
 * Ord. III. 1. This writ must be either 
 written or printed on parchment ; and 
 
 should have a left-iiand margin of sufTi- 
 ciuiit width to admit of the .stamp, and the 
 olhcial .seal; the writ must be stamped 
 with a Chancery tee fund .stamp of 5s. 
 I-lcgul to Ord. Sched. 4; Braithwaite's Pr. 
 133. 
 
 fi Ord. III. 2, 5; ante, pp. 453-455. 
 
 6 Braithwaite's Pr. 159. For forms of 
 indorsements, see Vol. 111.
 
 WHERE THE COPY OF THE BILL HAS BEEN SERVED. 
 
 4G5 
 
 Clerks' Office ; and the seal will be affixed, on the Clerk of Records 
 and Writs being satisfied that the wi-it is correct in fonn, and that 
 the person presenting the same is, according to the course and 
 practice of the Court, entitled to sue out the same.^ The attach- 
 ment is considered as sealed the first moment of the day on which 
 it issues.'^ 
 
 Before the writ will be sealed, a prcecipe, stating the nature of 
 the contempt in respect of which it is issued, must be entered with 
 the Registrar, and left at the Record and Writ Clerks' Office. In 
 order to enter the lyrcBcvpe^ two copies of it are prepared ; and 
 upon one being left with the Clerk at the entering seat, in the 
 Registrars' Office, the other will be marked by him as entered ; and 
 the latter copy must be filed with the Record and Writ Clerk at 
 the time the writ is sealed.^ 
 
 The manner in Avhich both original and amended bills are filed 
 has before been stated ;* and under no circumstances can an attach- 
 ment be issued for want of appearance or answer, unless the bill 
 be regularly filed.^ 
 
 A writ of attachment, for want of appearance, is indorsed, " By 
 the Court : For not appearing at the suit of A. B., complainant," 
 or as the case may be ; ^ and it will be sealed at the Record and 
 Writ Clerks' Office, upon production of the order authorizing the 
 issue of the writ ; '^ if it appears to the Clerk of Records and Writs 
 that no appearance has been entered for the defendant.^ Before 
 the writ is sealed, a prceci2)e must be entered with the Registrar, 
 and left in the manner before exjjlained.^ 
 
 It is particularly requisite that the rule, that a suitor prosecut- 
 ing a contempt, should use his best endeavor to procure process to 
 be duly servcd,^^ should be attended to in cases where it is intended 
 to proceed to take a bill ^>ro confesso, against a defendant in con- 
 tempt for want of an answer : for, by the General Orders, it is 
 necessary that the plaintiff should have exerted due diligence to 
 procure the execution of the Avrit of attachment, "in order that he 
 may proceed, under these Orders, against the defendant as having 
 absconded." And if the plaintiff does not proceed under the 
 last-mentioned Orders, then, for the purpose of obtaining a writ of 
 Bcquestration, immediately upon the return by the sherifl^" of 7ion 
 
 Ch. VIII. § 3. 
 
 Entiy of 
 proicipe. 
 
 1 Ord. I. 37. 
 
 2 Stf-phcnn I'. Nonlo, 1 Mad. 550. 
 
 8 >Sinitli V. Thoiiip-on, 4 Mad. 179; Ord. 
 I. It^; lirnitliwailo's I'r. 161. For forms 
 of prmripe^ sec \'ol III. 
 
 * Anle, pp. 39H, 3D9, 422. 
 
 * l.cman i'. Newnham, 1 Vcs. §§ 51, 63; 
 Belt .Sup. 42; Adamson v. Uluckstock, 1 
 S. & S. 118. 
 
 * For forms of indorsements, see Vol. 
 III. 
 
 7 Ord. X. 10; anle, p. 462. 
 vou I. 
 
 Attachment 
 cannot be 
 if^sued, if bill 
 filed irrejju- 
 larly. 
 
 Attachment 
 lor non- 
 appearance : 
 iiow indorsed. 
 
 Necessary 
 evidence. 
 
 How issued. 
 J'rwcipe. 
 
 Due diligence 
 must be used 
 to e.xeeule 
 writ. 
 
 8 Braithwaite's Pr. ICl. 
 '•* Sniilli t'. riionipson, 4 Mad. 179, nnle, 
 p. 405. For form ui prcecipe, see Vol. HI. 
 
 10 Ord. X.\.\. 1. 
 
 11 Ord. XX 11 2. Where the defendant 
 is out of the jurisdiction the att:iclin)ciit 
 need not be issued ; see IJutlcr v. Mnttliuwi, 
 I'J lieav. 54'J; Hodgson v. Ilodg^^on, '2.3 
 licav. 004. In other cases an afliijavit of 
 due diligence to execute the attiiclunent 
 must be made. 
 
 80
 
 466 
 
 COMPELLING APrEARANCE. 
 
 PROCEEDINGS IN DEFAULT. 
 
 Cm. Vlll. §; 
 
 Dcliven' to 
 the sheriff; 
 
 or under- 
 sheriff, or 
 deputy. 
 
 Duty of 
 slieriff, &c. 
 
 Execution, 
 where defend- 
 ant is ah-eady 
 in custody. 
 
 Execution, 
 where defend- 
 ant not in 
 custody. 
 
 M' arrant to 
 
 sheriff's 
 
 officers. 
 
 Form of 
 warrant. 
 
 Warrant 
 must be had 
 before the 
 arrest. 
 
 Execution of 
 the warrant : 
 
 <,-<f ifircnttfs to tlic nttiu'liiuciit, :ui aili<l;ivit niuist be made, tliat 
 "line tlilint-nee was used to aseertaln where sucli defendant was at 
 the time of issuing the writ, and in endeavoring to apprehend 
 liiin under the same, and that the person suing forth such writ 
 verily believed, at the time of suing forth the same, that such 
 defendant was in the county into which such writ was issued." ^ 
 
 The first thing to be done, after an attachment has been issued, 
 is to deliver it to the sheriif or other officer to whom it is directed ; 
 and it is to be observed, that although it is directed to the sheriff, 
 it may be delivered to the under-sheriff, by whom all the duties of 
 the sheriff which do not require his ])ersonal }>resence are usually 
 executed, or to the deputy-sheriff,^ The sheriff or other officer to 
 whom any writ is directed or delivered ought, with all speed and 
 secrecy, to execute such writ ; * and neither he nor liis officers 
 can dispute the authority of the Court out of which it issues ; but 
 he or his officers are, at their peril, to execute the same, according 
 to the command of such writ.* 
 
 If the defendant is already in custody, either upon a criminal 
 sentence or civil process, no further arrest is necessary ; but the 
 sheriff must give notice of the attachment to the keeper or jailer 
 in whose custody the defendant is.^ 
 
 Although all writs and processes are ordinarily directed to the 
 sheriffs, yet they never execute the same themselves, but the 
 under-sheriffs usually make out their warrants to their bailiffs or 
 officers for the execution of such writs ; ® and it is the duty of 
 such bailiffs or other officers to execute such warrants according 
 to their directions. These warrants must be made according to 
 the nature of the writ, and contain the substance thereof, and be 
 made out in the high sheriff's name, and under the seal of 
 office.'' 
 
 The w^arrant must be had before the arrest ; or the arrest will 
 be illegal, and the party aggrieved may have his action for false 
 imprisonment, and the Court will direct the bail-bond to be 
 cancelled.^ The warrant must be : " So that I may have his 
 body before the Queen, in her Court of Chancery." 
 
 The bailiff or officer to whom the warrant is directed and deliv- 
 ered ought, with all speed and secrecy, to execute the same 
 
 1 Ord. Xir. 6. 
 
 2 Impey, Off. Sheriff, 36. By 3 & 4 
 Will. IV. c. 42, § 20, the sheriff of each 
 county is required to name a deputy in 
 London for the receipt of writs, granting 
 warrants, making returns, and accepting 
 rules and orilers touching the execution of 
 process. A delivery of a writ to this deputy 
 is a delivery to the sheriff. Chiity's Arch. 
 16. A writ, if directed to the Sheriff's of 
 London, is left at the Secondary's Oliice, 
 Basinghall Street ; and if to the Sheriff of 
 
 Middlesex, it is left at his office in Red 
 Lion Square. 
 
 8 Impey, Off. Sheriff, 45. 
 
 * lb. 33. 
 
 6 See ante, p. 463. 
 
 « Impey, Off. Sheriff, 59; Chitty's Arch. 
 609. For form of warrant, see Chitty's 
 Forms, 350. 
 
 ' Impey, Off. Sheriff, 59. As to special 
 bailiffs, see Chitty's Arch. 16, 609. 
 
 8 4 liac. Abr. 600; Hall v. Roche, 8 T. 
 R. 187 ; Chitty's Arch. 610.
 
 WHERE THE COPY OF THE BILL HAS BEEN SERVED. 
 
 4()7 
 
 according as it commands him ; and he is bound to pursue the 
 effect of his warrant.^ The baihff of a hundred may execute a 
 writ out of the hundred where he is baiUff : for he is baihff all the 
 county over ; "^ it must, however, be within the county : for the 
 sheriff's baiUwick extends no further.^ It seems, that an arrest 
 may be by the authority of the bailiff, though his be not the hand 
 that arrests, nor in sight, nor within any precise distance of the 
 defendant : it is sufficient that he is arrested.* 
 
 An arrest on a Sunday is absolutely void.^ If, however, a 
 defendant arrested on a Saturday escapes, he may be retaken on a 
 Sunday : for that is not in execution of the process, but a continu- 
 ance of the former imprisonment ; ® and it is said, that a person 
 may be arrested on a Sunday on the Lord Chancellor's warrant, or 
 an order of commitment for contempt : for he is considered as in 
 custody from the time of making the order, and the warrant is 
 directed to the jailer as in the nature of an escape warrant,'' under 
 which it has been held, that a defendant may be retaken on the 
 Lord's-day.^ 
 
 The baiUff or other person to whom the execution of the process 
 has been intrusted must, as soon as he has executed the warrant, 
 return it, together with his answer to the same, to the sheriff: so 
 that he may be ready to certify to the Court how, and in what 
 manner, the warrant has been executed, when called uj^on.^ 
 
 No arrest can take place under an attachment after the day of 
 the return of the writ;^" and if the return is allowed to expire 
 before any thing is done upon the writ, the plaintiff must sue out 
 another attachment, but will, in such case, be allowed the costs of 
 only one writ." This, however, must be understood as applying 
 only to cases where the first writ has not been delivered to the 
 sheriff: for after delivery to the sheriff, the duty of executing 
 it lies upon him, and he must make his return to the Court 
 accordingly. 
 
 A sheriff or other officer employed to make an arrest under an 
 
 Ch. VIII. § 3. 
 
 i ' 
 
 may be by 
 bailiff out of 
 his hundred ; 
 liut not out of 
 the county. 
 
 Arrest on a 
 Sunday void. 
 
 Return of 
 warrant by 
 bailiff. 
 
 No arrest 
 after the 
 return day. 
 
 1 Impev, Off. Sheriff, 45. 
 
 2 Ih. 40. 
 
 8 Hammond v. Taylor, 3 B. & Aid. 408; 
 Chitty'H Arcli. 612. 
 
 * lilatcli v. Archer, Cowp. 06; Chitty's 
 Arch. 610. 
 
 ' 29 Car. II. c. 7, § 6; Chitty's Arch. 
 611. 
 
 6 Impev, Off. .Sheriff, 61; Cliitty's Arch. 
 611, II ('/); ih. 601. 
 
 ' Kx fKirlc Whitchurch, 1 Atk. 55; see 
 1 Anne, »t 2, c. 6, § 1 ; and 6 Anne, c. 'J, 
 § 3, which en^ible^ the .Juilfje of uiij' (Jourt 
 out of which process lias is^ue(l, by virtue 
 of which a parly has been committed to 
 prison and esc;ipc» therefiom, to issue a 
 warrant for his reapprchcnslon ; and see 
 
 Bac. Ab. tit. Escape, E. 3; Chitty's Arch. 
 6<J2. 
 
 » Impey, Off. Sheriff, 61. 
 
 9 Jb. 46. 
 
 10 lb. 59. 
 
 11 Harr. by Newl. 118. If the sheriff 
 does not receive the attachment in time to 
 arrest tli^^ del'endant and briii|L; him into 
 the (/ourt on the return day, at the place 
 where the attacliment is retunialile, he 
 should not arrt'st him thereon, hut should 
 return the process tnrdt. .Stall'ord v 
 Brown, 4 I'aige, 360. Where the fherilf 
 neglected to serve iin attMchment, niiiil it 
 was too late for the defendant (o ap|)far iit 
 the time and jihice where it was return- 
 able, the Oiurt set aside the arrest of the 
 defendant thereon. IbUl. 
 
 Doors cannot 
 he broken 
 open.
 
 468 COMrELLING APrEARANCE. — PROCEEDINGS IN DEFAULT. 
 
 ('II. VIII, §.!. attaclmuiit oannot justify brcakiuu; doors in executing the pro- 
 
 '" > ^ COPS ; ^ and aUliougli the arrest is by a baihil' or other othcer, it is 
 
 considered as the act ot" the sheriiK, who makes his return uccord- 
 
 ingb'- 
 Ooiirso wluTo If the defendant is taken on an attachment for want of appcar- 
 
 drroru'd"' '^ ^^^^'^ ^^'' '"^swcr, he must either go to prison for safe custody, or put 
 in bail to the sheritt": for the intent of the arrest being only to 
 compel an appearance in Court at the return of the writ, or an 
 answer to the interrogatories, that purpose is equally answered, 
 whether the shcrifl* detains his person, or takes sufficient security 
 for his ai)pearance or answer.- The sheriff, may, however, if he 
 pleases, let the defendant go at large without any sureties; but 
 that is at bis own peril : for, after once taking- him, the sheriff is 
 bound to keep him safely, so as to be forthcoming in Court.^ 
 Of putting in The method of ])utting in bail to the sheriff is by entering into 
 sheriff*''*^ a bond or obligation, Avith one or more sureties, to insure the 
 defendant's appearance at the return of the writ : which obligation 
 is called a bail-bond.* The statute 23 Hen. VI. c. 9, having 
 prescribed in what cases the sheriff may take a bail-bond in actions 
 emanating from Courts of Law, and prohibited the taking a bond 
 in all other cases, a doubt appears to have been raised whether the 
 sheriff has or has not a right to take a bail-bond upon attachments 
 issuing out of the Court of Chancery. But this question has been 
 set at rest by the decision of the Court of Common Pleas, in 
 Morris v. Hayicard,^ by which it was determined, that a sheriff 
 may take a bail-bond on an attachment out of Chancery, but that 
 he is not compellable to do so ; and that whether a bail-bond shall 
 be taken or not is in the discretion of the sheriff, as regulated by 
 the practice of that Court. The consequence is, that an action at 
 Law will not lie against the sheriff, under the above-mentioned 
 statute, for refusing to take bail from a defendant, arrested under 
 an attachment issuing out of the Court of Chancery.® 
 Form of The practice of the Court, however, seems to be, that where a 
 
 bail-bond. party is taken upon an attachment for a contempt, he may, when 
 the contempt is of a bailable nature, on payment of the costs, 
 which are 13s. Be?., be admitted to bail, by entering into a bail- 
 
 1 See Chitty's Arch. 613. answer the exigency of the writ, until the 
 
 2 3 Bla. Com. 290. return day tliereof, unless he shall, with 
 
 3 Ibid. one sufficient surety, at least, give bond, 
 
 4 Ibid. Where an attachment is in the in tlie penal sum of five hundred dollars 
 nature of mesne process, the sheriff may to the plaintiff, conditioned for his appcar- 
 take bail for the party's appeiirance; and ance on tlie return-d.iy of the attachment, 
 on a return cepi, the sheriff may be or- according to the command of such writ, 
 dered to bring in the bodj'; or he may sue and that he will not defiart thence without 
 on the bail-bond. Binney's case, 2 IJ and, leuve of the Court. Chancery Rule, 25. 
 &9; Deakins's case, ib. 808. 6 6 Taunt. 5C'J; and see Lewis v. Mor- 
 
 In New Jersey, when an attachment for land, 2 B. & Aid. 66 ; Chitty's Arch, 
 a contempt shall be served, the defendant 1709. 
 shall be retained in custody thereon, to « Studd v. Acton, 1 H. Bla. 468.
 
 WHERE THE COPY OF THE BILL HAS BEEN SERVED. 469 
 
 bond to the plaintiff, to the amount of 4:01. himself, with two Ch. Viii. §a. 
 
 sureties in 20/. each, to appear or answer, as the case may be, at ~ y ' 
 
 the return of the writ.^ 
 
 It is to be observed, however, that a contemjit in not paying Attachment: 
 costs, or in not obej-ing a decree or order, is not of a bailable ^aiUble?* 
 nature ; and that the sheriff cannot take bail to an attachment 
 issued on that account.^ 
 
 Where a sheriff, having taken a defendant into custody upon an Assifrnment 
 attachment, takes bail for his appearance, he may assign the bail- °^ bail-bond. 
 bond to the plaintiff: ^ who, if the defendant neglects to appear, 
 or to put in an answer, may put the bail-bond in suit against him. 
 If the attachment be for not answering, the plaintiff may also Action on 
 have a messenger into the county where the defendant lives, to p^elTiud"^ by^ 
 arrest the defendant, and bring up his person to the Court ; which sending a 
 is the more effectual way of proceeding.^ This, however, will ^'^**'*"ser- 
 not preclude him from bringing an action, at the same time, upon 
 the bail-bond, against the defendant and his sureties: otherwise, 
 the giving a bail-bond would be quite useless;^ and it is to 
 be observed, that if an action is brought on the bail-bond, the 
 defendant cannot obtain an order to restrain the plaintiff from 
 proceeding in it, without first clearing his contempt.® 
 
 All processes against any person, directed to the sheriff, ought Return made 
 to be duly and truly executed, and returned into the Courts out of JjJ^'^ij"^/^.^"^ 
 which they issued ;'' and all returns, although made by the under- 
 sheriff, yet must be made in the name of the high-sheriff, and his 
 name must be put thereto, or the return is void.* The sheriff must 
 also return truly, and not contrary to the record ; if he does, he must be true, 
 falsifies all his proceedings.' If the sheriff takes the party to jail, Defendant to 
 he should lose no time in so doing : as otherwise, the time may |,','',(,','i'|^.'|','ii„,,, 
 expire within which the plaintiff is bound to bring up the defend- delay. 
 ant to answer his contempt.^" 
 
 The return ought to be made before or upon the day of return Return: when 
 nametl in the writ, if a day certain is named; but if the writ be to be made, 
 returnable on a return day not certain, the sheriff need not return 
 it till the quarto post}^ An attachment returnable "immediately" 
 should be returned as soon as it is executed ; but it is in force till 
 the last return of the Tenn following the teste}"^ If executed after 
 
 1 Ilinde, 106. '' Heddall r. Pnge. 2 Sim. 224. 
 
 2 Anon., Pr.c. Cha. 3.31; flowdray v. o 1 Turn. & Vcn. 11.5. 
 CroRH. 24 Beiiv. 445. The liability of the ^ Impey, Off Sheriff. 3.33. 
 Bherifir for an e-capc, is the loss actually " Ih. 334; Chitty'a Arch. 619. 
 Ruitiimed; and the Court of Chancery ^ H/id, 
 
 will ascertain the amount. .Moore v. l" 11 Cn'o. IV. & 1 Will. IV. c. 36, § 16, 
 
 Moore, 2.5 I'.eav. H; 4 .lur. N. S. 250; r. 4 ; Ord. XII. 3. 
 
 see alto Sudden r. Hull, 28 Beav. 263. »' Makc|>eic-.- r. Dillon, Fort. 363; Impey, 
 
 » Anon., 2 Atk. 5<i7. Off. Sheriff, 33.3; BraitliWiiite's I'r. 2S',1. 
 
 « /ii'/. ; Cowdniy w. Cross, 24 Reav. 445. '2 Seton, 1231; Hruithwaite's Manual, 
 
 This cannot be done where the attachment 19'J. 
 i« to compel appearance. Ord. X. 10.
 
 470 
 
 COMPELLING APPEARANCE. — PROCEEDINGS IN DEFAULT. 
 
 (II. vin.5 !• 
 
 If ivtiirn not 
 inado, sheriff 
 iniiy lie 
 aiiiori-ed. 
 
 ()riiinarv 
 
 lIlOlU' of 
 
 compelling 
 return. 
 
 Where writ 
 issued into 
 county 
 palatine of 
 Lancaster ; 
 
 that time, it is linl)lo to bo discharirod for irrc£julanty. The party 
 jMosoiMitiiig the coiitompt, liowovor, is at liberty to call upon the 
 sheritll, by an order, for his return to an attaclnnent rettirnable im- 
 mediately, on the iit'th day ailer it is put into the sherilF's hands.^ 
 
 If the sluTilf or other officer does not make his return of the 
 writ ilireeted to him, the Court may amerce liim.'^ The amerce- 
 ments are commonly £5, and are to be levied by being estreated 
 into the Plvchequer, or by process, out of the Petty Bag, to the 
 succeeding sheriiJJ to levy and pay them into the Ilanaper ; but it 
 is usual to give the sheriff a day for that puipose ; and if he do 
 not by that time return the writ, the Court will set the amerce- 
 ment.^ 
 
 The general course of proceeding, however, to obtain or compel 
 the sheriff to return an attachment is as follows : The party pros- 
 ecuting the contempt applies, in the first instance, to the under- 
 sheriff, or deputy-sheriff,* to make a return to the writ, and either 
 to file it at the Record and Writ Clerks' Office, or to hand it to 
 the applicant." If the return is not made, the party obtains an 
 order of course, on motion, or petition at the Rolls, directing the 
 sheriff fortlnvith to make the return.® This order is served on 
 either the sheriff, under-sheriff, or deputy-sheriff;'' and if it be not 
 obeyed, the party obtains, on ex parte motion, an order nisi^ that 
 the sheriff do, in six days after personal notice of the order, return 
 the writ, or, in default, stand committed.® This order is served 
 personally on the sheriff; and should the return still be withheld, 
 an order absolute may be obtained, on ex 2ycirte motion, sup))orted 
 by affidavit of service of the order nisi, and of no retui-n.® Where, 
 however, the first order limits a time for the sheriff to return the 
 Avrit upon personal service of the order, it seems that he may be 
 attached : in which case two subsequent orders are unnecessary.^ 
 
 Where an attachment has been issued to the Chancellor of the 
 county palatine of Lancaster or Durham, and he omits to return 
 the writ, a peremptory order, which is obtainable on motion or 
 petition of course, must be made uj)on him^ to return it within a 
 certain number of days after service of the order : upon which, if 
 
 1 Braithwaite's Pr. 289. 
 
 2 Gilb. Form. K-m. 70. 
 
 3 Hnrr. l.v Newl. 118. 
 < Ante, p.' 466. 
 
 5 liniithwiiite's Pr. 289. 
 
 6 Seton. 1231. In New York, the officer 
 executinp the attiichmeiit must return the 
 same by the return day specified therein, 
 without any jirevious order fnr the purpose. 
 In ca-e of default, an attachment may 
 forthwith isi-ue against the officer; which 
 will not be bailable. People v. Elmer, 3 
 Paige, 8-5. Hut tie mav return the same 
 at any time during the actual sitting of the 
 Court on the return day thereof, unless he 
 
 is specially directed by the Court to return 
 it immediately. It is therefore irregular to 
 take out an attachment against liim ex 
 parte during the sittings of the Court on 
 that day. People v. Wheeler, 7 Paige, 433. 
 For forms of orders, see Seton, 1230, Nos. 1, 
 2, 3; and for forms of motion paper, peti- 
 tion, and affidavit, see Vol. III. 
 
 7 Ante, p. 466, n. 2. 
 
 8 Seton, 1231; Ord. XXITI. 10. 
 
 8 But where the order wms erroneously 
 made on tlie sheriff, it was held, that the 
 sheriff must obey or move to discharge it; 
 Sugden v. Hull, 28 Beav. 203.
 
 WHERE THE COPT OF THE BILL HAS BEEN SERVED. 471 
 
 he returns " that he hath sent his mandate to the sheriff, who hath Ch. viii. § 3. 
 not returned the same," another peremptory order may be obtained, ""-■ — y — — ' " 
 in like manner, to the sheriff, commanding him, within a certain and sheriff 
 number of days after service of the order upon his under-sheriff, to the nmndateT 
 return the mandate.^ 
 
 Upon an attachment, there are three ordinary returns : (1.) If Form of 
 the defendant cannot be arrested, the sheriff returns : " The with- '■'^'^"™- 
 in-named A. B. is not found in my bailiwick ; " "^ this is termed a 
 non est inventus, and upon this return, further process of contempt 
 is grounded. (2.) If the defendant is arrested, but the sheriff 
 either accepts bail for his appearance or keeps him in his own cus- 
 tody, he returns : " I have attached the within-named A. B., as 
 within I am commanded, whose body I have ready ; " this is called 
 a cepi corpus.^ (3.) If the sheriff arrests the defendant, and lodges 
 him in jail, or, finding him there, lodges a detainer against him, 
 he returns : " I have attached the within-named A. B., Avliose body 
 
 remains in Her Majesty's jail for my county of , under my 
 
 custody" (or as the case may be).* Either of the two last men- 
 tioned returns, when made, puts an end to all the ordinary pro- 
 cess : ^ unless the defendant afterwards escapes or absconds, for in 
 that case, the sergeant-at-arms may be sent, for the purpose of 
 grounding a sequestration.® 
 
 If the writ is <lirected to the Chancellor of Lancaster, command- Return by 
 ing him to issue his mandate to his sheriff to attach the party, the <^hancel!or of 
 
 I 'iiic'istcr 
 
 return is, that he has issued his mandate according to the terms of 
 the writ, and that the sheriff has made the return to him of non est 
 inventus, or as the case may be. 
 
 The costs of an attachment issued, but not executed, are ll.s. 2d.; f <>«*■'' of an 
 if executed, 1.3.S-. Sd.; and if issued against more than one party, 
 'Is. Gd. is payable for each additional party.' 
 
 When the sheriff returns non est inventus, the plaintiff may, after "Where non 
 
 * €,&t IJlVEJlttlS 
 
 the return day named in the attachment already issued, issue other returned, 
 attachments, for the purpose of obtaining the arrest of the defend- 
 ant; but as he cannot obtain an order for a messenger, or for the 
 sergeant-at-arms,* and consequently cannot have a writ of seques- 
 tration, to compel appearance, there does not seem to be any case 
 in whicli it will be for the jjlaintiff's interest to continue a compul- 
 sory process, after a return of no?i est inventus. 
 
 When the sheriff attached the party, and took bail lor hini, the Where wyw 
 old practice was for the plaintiff to move for a messenger to bring ^^"^"^gj 
 
 • CloUKh V. Cros'f, 2 Dick. 555, 568. « See Hook v. Ko.ts, 1 Hen. & M. 319, 
 2 A return, that 11 defendant Ih not to be 320. 
 
 foutid, ix had. 5 Dowl. 451. 7 Brown i». Lee, 11 Heav. 379; Urailh- 
 
 « IJraitbw.iite's I'r. 272. waite's I'r. 154. 
 
 * lit. 2hl. 8 Ord. X. 10. 
 » Frederick v. David, 1 Vcrn. 344 ; 
 
 Uinde, 100.
 
 472 
 
 COMrELLING APPEARANCE. — PROCEEDINGS IN DEFAULT. 
 
 I'll. VIII. §4. 
 
 Whore 
 
 dcfeiiiliint is 
 am.'.'itoil and 
 iinprisoiied. 
 
 Attachment 
 for want of 
 appearance is 
 now seldom 
 issued. 
 
 When de- 
 fendant enti- 
 tled to his 
 discharge, 
 where arrest- 
 ed for non- 
 appearance. 
 
 uj> tlio defendant ; but now, a messenger cannot be obtained to 
 (.•omjiel apiH'aranee ; ^ and it woidd consequently seem tbat, upon 
 such a return, the phiintili" has no other course open to him, except 
 to enter an appearance for the defendant.^ 
 
 When the sherift' actually arrests the defendant, and sends him 
 to prison for want of a])pearancc, the ])laintiff cannot brim; him to 
 the bar of the Court; and the only course that aj)])ears to be open 
 to liim is, to enter an appearance for the defendant under the 
 General Order:* the provisions of the Act of 11 Geo. IV. & 1 
 AVill. IV.,^ enabling the plaintiff to enter an appearance for the 
 defendant, in such a case, being obsolete in practice, though not 
 expressly repealed.^ 
 
 The result, therefore, in every case where the plaintiff prosecutes 
 the contempt for not appearing against the defendant, seems to be : 
 that, if the defendant does not api)ear, the plaintiff has no other 
 course than to enter an apj)earance for him ; and as the defendant 
 cannot be brought to the bar of the Court, he will, if arrested, be 
 entitled to claim and obtain his discharge at the expiration of 
 thirty days from the time of his being actually in custody or de- 
 tained ; or, if the last of thirty days shall happen out of Term, 
 then, at the expiration of the first four days of the ensuing Term ; 
 and the plaintiff must bear the costs of the process of contempt. 
 The consequence is, that, in practice, an attachment for want of 
 appearance is very seldom issued: the plaintiff, almost invariably, 
 on the time for the defendant appearing having elapsed, at once 
 taking the course of entering an aj^pearance for him, under the 
 General Order.'' 
 
 Privileged 
 persons : 
 
 A ttomey- 
 General. 
 
 Section IV. — Against particular Defendants. 
 
 Having now considered the mode of compelling the appearance 
 of a defendant upon whom service has been effected, and who is 
 not entitled to any particular privilege, or under any peculiar dis- 
 ability, the next point is, in what manner the appearance of per- 
 sons so privileged or disabled can be obtained. 
 
 In the first place, if the Attorney-General, upon being served 
 with a copy of the bill, does not appear, no personal process issues 
 against him to compel him so to do ; but if he will not appear, it 
 seems that it would be considered as a nihil dicit.^ 
 
 1 Ord. X. 10. 
 
 2 Ord. X. 4; Braithwaite's Pr. 161. 
 
 8 Ord. X. 4; and see Ord. X. 10; Braith- 
 waite's Pr. 280, 2H; and nnte, p. 460. 
 
 * Cap. 36, § 11; and § 15, r. 13. 
 
 « Braithwaite's Pr. 279; and sefi For- 
 tescue V. HaUett, 3 Jur. N. S. 806, V. C. K. 
 
 6 11 Geo. IV. & 1 Will. IV c. 36, § 15, 
 r. 5; Braithwaite's I'r. 279, 280. 
 
 7 Ord. X. 4. 
 
 8 Barclays. Russell, 2 Dick. 729. As to 
 the course, where he neglects to answer, 
 see post, Chap. X. § 2.
 
 AGAINST PARTICULAR DEFENDANTS. 
 
 473 
 
 If the defendant claim the privilege of Peerage, and do not enter 
 an appearance upon being served, in the manner before explained, 
 with a letter missive and copies of the petition and bill,^ he must 
 be served with an indorsed copy of the bill ; and if he do not then 
 appear, an appearance may be entered for him, as in the case of an 
 ordinary defendant, on an affidavit of both such ser\'ices ; ^ and 
 the same may be done for a member of Parliament who has been 
 served with a copy of the bill, and has neglected to appear him- 
 self3 
 
 The mode of proceeding in these cases was formerly by seques- 
 tration ; * and it seems that this course is still open to the plaintiff, 
 if he thinks fit to adopt it. 
 
 In order to obtain a sequestration against a peer of the realm, 
 or bishop, an affidavit must be made of the service of the letter 
 missive, and of the copy of the petition upon which it has issued, 
 and also of the service of a plain and of an indorsed copy of the 
 bill.* Where the process is required against a member of the 
 Commons' House of Parliament, the affidavit need only verify 
 the service of the copy of the bill.® An ex parte motion ' must then 
 be made for a sequestration against the defendant's real and per- 
 sonal estate : which the Court orders nisi, that is, unless the de- 
 fendant shall, within eight days after personal service of the order, 
 show unto the Court good cause to the contrary.^ The defendant 
 must be served personally with this order, and if he persist in re- 
 fusing to appear, then an affidavit of service must be made, and 
 counsel instructed to move to make the order absolute.^ It is to 
 be observed, that where an order nisi for a sequestration against a 
 peer or member of the House of Commons, for want of an answer, 
 has been obtained, it is good cause to show against making such 
 order ?iisi absolute, that the answer has been put in ; but if excep- 
 tions have been taken to the answer, the time for showing cause 
 will be enlarged, until it shall appear whether the answer is in- 
 sufficient or not.^" 
 
 Personal service of the order 7iisi may be dispensed Avith in cases 
 where the privileged defendant keeps within his own house, or is 
 
 Members of 
 Parliament. 
 
 By seques- 
 tration. 
 
 Sequestra- 
 tion: how 
 obtained. 
 
 Order for 
 sequestration 
 nisi : 
 
 and absolute. 
 
 • AnU, p. 446. 
 
 ' For form fif iiffidavit, seo Vol. HI. 
 » HraithwHite's I'r. 20, n., 337; (Jrd. X. 
 4; ante, pp. 444, 400, 401. 
 
 • Formerly, if a peer of the realm ap- 
 
 fieared arid did not answer, an iittncliiiicnt 
 iiy; but now, by order of I'arliiimont, rio 
 process lies but a sequestration. Hinde, 
 131. 
 
 • For form of affidavit, see Vol. III. 
 « Jlji.1. 
 
 ' For form of m"tion paper, see Vol. III. 
 » llinde, 81. 
 
 ^ Ibid. For form of nfFubivit of service, 
 and motion paper, see Vol. III. 
 
 10 Mutlcr y. Ha.sliliel<l,3 Atk. 740. From 
 the oli.scrvation of the reporter, appended 
 to thi.i case, it may be inferred, timt upon 
 the nutiiority of what the Kof^nstrar had 
 said in Lord Clitronl'scase, 2 1'. Wins. 3>>5, 
 Lord Hardwicke had allowed the cause 
 shown, MS hi-infr the course of the Court; 
 but ii()ori reference to the Kefjistrar's book, 
 when' tlic order is enteroil under tlie litlo 
 of llutler J". Hashleijjli, it a|)pears tli.'it the 
 time for showing; cause was enlarged till 
 the next seal. licg..Lib. 1760, A. 4'J6, (6). 
 
 Personal ser- 
 vice of order 
 nisi: when 
 dispensed 
 with.
 
 474 
 
 COMPELLING APPEARANCE. — PROCEEDINGS IN DEFAULT. 
 
 Oil. VI 11. § I. 
 
 As against 
 officers of tlie 
 Court. 
 
 Form of the 
 sequestration. 
 
 How seques- 
 tration sued 
 out, and 
 discharged. 
 
 surroumloil liy lus servants to avoid servico, or whore tlio party 
 serving tlie j)rooess is denied access, and it is very ditlicult and 
 almost impossible to servo the order personally. But to dispense 
 with personal service, it is necessary to ajiply to the Court for 
 leave to substitute a service in lieu of it : srroundinu; such a])])lica- 
 tion upon a pro]ier affidavit of the jiarticular circumstances of the 
 case ; and the Court will, on such application, exercise a discretion, 
 and make the order, if the facts stated in the affidavit are strong 
 enough to warrant such a proceeding.^ Thus, where a peer de- 
 fendant avoided the service of an order nisi for a sequestration, the 
 Court of Exchequer made an order that service thereof upon his 
 clerk in Court, and at his dwelling-house, or, if no person should 
 be met with there, by fixing a copy of the order on the door, should. 
 be good service.^ In Thomas v. Lord Jersey^ a bill was filed 
 against Lord Jersey ; upon which a letter missive, with a coj)y of 
 the bill, was served on the defendant, i)y leaving it with one of his 
 female servants at his residence in Berkeley-square. His Lordship 
 was then abroad. On his neglecting to appear to the letter mis- 
 sive, a subpoena was served in the same way ; and upon his non- 
 appearance to that, an order nisi for a sequestration was issued : 
 when, upon inquiry at his Lordship's house, it appeared that he 
 was still abroad. Thereupon, on an affidavit being made of these 
 facts, Sir Lancelot Shadwell V. C. directed that service of the 
 sequestration nisi at his Lordship's town house should be good 
 service ; and upon a motion to discharge the V. C.'s orders, Lord 
 Brougham reftised the motion.* 
 
 It seems that the same course of proceeding in suing out and 
 issuing the sequestration is observed, where it is sought against an 
 officer of the Court, as in the case of peers ; ^ with the exception, 
 that the affidavit upon which the order nisi is applied for must be 
 confined to the service of the bill : there being no letter missive, 
 as in the case of a peer. 
 
 The form of the sequestration issued against peers and other 
 privileged persons is nearly the same as that issued in cases of con- 
 tempt by ordinary persons, with the exception that it recites the 
 order nisi^ and the order for making it absolute.® 
 
 When the order for making the sequestration absolute is drawn 
 up, passed and entered, the plaintiff's solicitor must make out the 
 writ of sequestration.'' The Court will not discharge the writ till 
 the party has appeared, and paid the costs of the process ; when 
 
 1 Hinde, 81. For form of motion paper, 
 Bee Vol. III. 
 
 2 Mackenzie v. Marquis of I'owis, 19 
 Mav, 17.39; 1 Fowl. Kx. Vx. 173. 
 
 8" 2 M. & K. 398; and see Sheffield «. 
 Duchess of Bnckiiifrham, Keg. Lib. 1740, 
 fo. 15, 2G ; 2 De G. & S. 4-56, n. 
 
 ^ See Attornej'-General r. Earl of Stam- 
 ford, 2 Dick. 744. 
 
 6 Corbyn v. liirch, ih. 635. 
 
 6 Fr)r Ibrm of writ, see Vol. III. 
 
 7 Ord III. 1.
 
 AGAINST PARTICULAR DEFENDANTS. 
 
 475 
 
 he has done so, he may move to discharge the sequestration, upon 
 notice to the adverse party if it be executed.^ 
 
 Upon the return of the sequestration against a defendant having 
 priAalege of Parliament, the Court may, on the motion or other 
 application of the plaintiff, give him leave to enter an ap]:)earance 
 for the defendant, under the stat. 11 Geo. IV. & 1 Will. IV. ; ^ 
 and such proceedings may thereupon be had as if the defendant 
 had actually appeared ; * but this course of proceeding is, in prac- 
 tice, superseded by the General Order.^ 
 
 In the case of infants and persons of unsound mind not so 
 found by inquisition, it is proA'ided by the General Order, that 
 "where, upon default made by a defendant in not appeai-ing to or 
 not answering a bill, it appears to the Court that such defendant 
 is an infant, or a person of weak or unsound mind not so found by 
 inquisition, so that he is unable of himself to defend the suit, the 
 Court may, upon the application of the plaintiff, order that one of 
 the solicitors of the Court be assigned guardian of such defendant, 
 by whom he may appear to and answer, or may appear to or an- 
 swer tlie bill and defend the suit.^ But no such order shall be 
 made unless it appears to the Court, on the hearing of such appli- 
 cation, that a copy of the bill was duly served in manner provided 
 by the stat. 15 & 16 Vic. c. 86, and that notice of such application 
 was, after the expiration of the tiine allowed for appearing to or 
 for answering the bill, and at least six clear days ^ before the day 
 in such notice named for hearing the application, served upon or 
 left at the dwelling-house of tl)e person with whom or under whose 
 care such defendant was at the time of serving such copy of the 
 bill, and also (in the case of such defendant being an infant not 
 residing with or under the care of his fjither or guardian) served 
 upon or left at the dwelling-house of the father or guardian of 
 such infant:'' unless the Court, at the time of hearing such appli- 
 cation, shall dispense with such last-mentioned service."^ The 
 plaintiff may, however, obtain an order, appointing a guardian of 
 an infant, althr)Ugh no default has been made in appearing or an- 
 swering.' 
 
 With reference to the service of the notice in the case of infants, 
 it has been held that, where the infants' father was dead, service 
 
 Ch. YIU. § 4. 
 
 Appearance 
 by default, on 
 return of 
 sequestration. 
 
 Infanta, or 
 persons of un- 
 sound mind, 
 not so found. 
 
 Notice of 
 application. 
 
 What service 
 of notice is 
 suflicieut. 
 
 1 Ilinle, 80; and see ;)o»^ Clinp. XX VF. 
 § 7, h.jifiircinq iJrrrees nnil Onlers. 
 
 2 ncJco. IV. & 1 Will. IV. c. 36, § 12. 
 
 * Ord. X. 4. 
 
 '' It has been usual to urder the solicitor 
 to tb« Suitors' Fund to act upon occasions 
 of this kind ; sec Tliomas i'. 'I'li'iuias, 7 
 Ileav. 47; Shi'[p|iard v. Harris, 10 Jiir 24, 
 V. C. K. IJ. ; ante, p 162. As to llic costs 
 of the solicitor to the Suitors' Futuj, wh'Te 
 BO ap(>oinled, see Ord. XL. 4 ; iind Harris 
 V. Hamlyn, 3 De G. & S. 470; 14 Jur. 56; 
 
 Frazer V. Thompson, 1 GifT. 337; 4 Dc G. 
 & .1. 6."iri; Robinson v. Aston, 9 Jur. 2'24, 
 V. C. K. B.; and see ante, p. 162, n. 10. 
 
 8 Sundays are included ; sec Ord. 
 XXXVII. li ; and see Brewster v. Thorpe, 
 11 .lur. 6, V. C. K. 
 
 '' For form of afTidavit of service, seo 
 Vol. III. 
 
 s Ord. VII. 3. For form of order, seo 
 Seton, 12.')1 ; iind for form of notice of mo- 
 tion, sec Vol. III. 
 
 » Buntluy v. Kobinson, Hare Ap. 76.
 
 470 
 
 COMPELLING ArrEARANCE. — PROCEEDINGS IN DEFAULT. 
 
 ("n. VllI.U- 
 
 AVlioro infant 
 has appeared. 
 
 If defendant 
 is of nnsound 
 mind, Court 
 nnist be -satis- 
 fied that no 
 vi lative will 
 niidiTlake 
 (lefonce. 
 
 Appearance 
 by plaint ift' 
 for infant, or 
 person of un- 
 sound mind, 
 is void. 
 
 Married 
 women. 
 
 at the house of tlicir inother and stei)-fatlier was sufficient;^ so 
 also, service on tho head of a college, of which the infant was an 
 undergraduate, was held sufficient, where the j)laintifl' could not 
 learn where the infant's parents lived ; "^ and the general rule is, 
 that notice shoidd be served at the dwelling-house of the person in 
 whose care the infant is.' 
 
 Where the iiitimt has appeared, service on the solicitor who 
 entered the aj»])earance is sufficient.* 
 
 In the case of persons of unsound mind not so found by inquisi- 
 tion, the Court requires to be satisfied that no relative will under- 
 take his defence, before appointing the solicitor to the Suitors' Fee 
 Fund ; ^ and where the defendant's family concur in applying for 
 the appointment of some other person, whose fitness is shown by 
 affidavit, the Court will ap|)oint him.® 
 
 Any ap]:)earance entered at the instance of the plaintiff, for a 
 defendant,' who, at the time of the entry thereof, is an infant or a 
 person of weak or unsound mind, unable of himself to defend the 
 suit, is irregular and of no validity.' 
 
 If a married woman is made defendant jointly with her husband, 
 and no appearance for her is duly entered by him or her,^ the 
 plaintiff may, within three weeks after service, enter an appear- 
 ance for her, as of course, upon an affidavit of service of the bill on 
 the husband ; ^ or where no order has been obtained by her to de- 
 fend separately,^" the plaintiff may ajiply to the Court, on notice to 
 the husband, for leave to issue an attachment against him ; " and 
 where the husband is plaintiff in the suit, he may, if no appearance 
 has been duly entered for her, enter such appearance, as of course, 
 within three weeks after service of the bill on her, on an affidavit 
 of such service ; ^ or he may apply to the Court, by motion, on 
 notice to her, for leave to issue an attachment against her." 
 
 1 Hitch V. Wells, 8 Beav. 576 ; and see 
 Lane v. Hardwicke, 6 Beav. 222 ; Thomp- 
 son V. Jones, 8 Ves. 141. 
 
 2 Christie r. C:imeron, 2 Jur. N. S. 635, 
 
 V. c. w. 
 
 8 Taylor v Ansley. 9 Jur. 1055, V. C. 
 K. B., and an iiffidavit not showing that 
 this had been done was lield insuiiicient, 
 S. C; O'Brien v. Maitlaiid. 10 W. K. 275, 
 L. C ; LaiTil)ert v. Turner, ib. 335, V. C. K. ; 
 Turnery. Sowrlon, 10 .lur. N. S. 1122; 13 
 W. K. 66, V. C. K. ; S. C. nam. Turner 
 V. Snowdon, 2 Dr. & Sm. 265 ; see as to 
 service of notice, where infant out of the 
 jurisdiction, ante, pp. 162, 452. 
 
 * Cookson »i. Lee, 15 Sim. 302; Bentley 
 V. Robin-on, 9 Hare Ap. 76 ; and the 
 same rule doubtless applies to persons of 
 unsound mind not so found. 
 
 6 .Moore V. PlMtel, 7 Beav 583; Biddulph 
 V. Lord Oamovs. 9 Beav. 548. 
 
 6 Charlton I'. We.st. 3 I)e G. F. & J. 156 ; 
 7 Jur. N. S. 614; Bonfield v. Grant, 11 W. 
 R. 275, M. R. 
 
 7 Ord. X 5; see Leese v. Knipht, BJur. 
 N. S. 1006; 10 W.R. 711, V.C.K. As to 
 appointing guardians ad litem of infants 
 and persons of unsound mind, see arite, pp. 
 160, 161, 176. 
 
 8 (Jrd. X. 3; Steele v. Plomer, 1 M'N. 
 & G. 83; 2 Phil. 782. n.; 13 Jur. 177; 
 Traversal. Buckly, 1 Ves. S. 384, 386; 1 
 Uick. 138: Braithwaite's Pr. 321; and see 
 ante, pp. 179-182. 
 
 « Ord. X. 4 ; Steele v. Plomer, ubi sup. ; 
 Braitliwaite's Pr. 337. For the practice, and 
 as to applications where the three weeks 
 have expired, see ante, pp. 460-462; and 
 for forms of aflidavit and prcecipe, see Vol. 
 III. 
 
 1" Ante, p. 181. 
 
 11 Ord. X. 10 ; see I-eavitt v- Cruger, 1 
 Paige, 421. For the practice, see nnte, pp. 
 462, 464 ; and for forms of notice of motion, 
 prmcipe, attachment, and indorsement, see 
 Vol. 111.
 
 AGAINST PABTICULAR DEFENDANTS. 
 
 47 
 
 If a corporation aggregate is defendant, and due service of the 
 bill has been effected upon it, then, upon affidavit of such service, 
 an appearance may be entered for the defendant by the plaintiff; ^ 
 or a writ of distringas^^ instead of the writ of attachment, may, 
 by leave of the Court, be issued ^ by the plaintiff, directed to the 
 sheriff, or other officer having jurisdiction in the district of the 
 corporation, commanding him to distrain the lands and tenements, 
 goods and chattels, of the corporation, so that it may not possess 
 them till the Court shall make other order to the contrary; and 
 that in the mean time he (the sheriff) do answer for what he so 
 distrains : so that the defendant may be compelled to appear in 
 Chancery, on the return of the writ, and answer the contempt.* 
 If to this writ the sheiiff returns nulla bona, an alias distringas, 
 which is a writ commanding the sheriff again to distrain the lands 
 and tenements, goods and chattels, of the corporation, may be sued 
 out ; and if he returns ?iidla bona to this also, a pluries distringas, 
 to the like purj^ort, may be issued.^ 
 
 Each such writ must be prepared by the solicitor ; a praecipe in 
 duplicate must be produced to the entering clerk in the Registrars' 
 office : who will retain one copy, and mark the other as entei-ed, as 
 before explained ; ® and the writ Avill thereupon be sealed by the 
 Record and Writ Clerk, upon the entered praecipe being filed with 
 him.'' Upon scaling the alias or ptluries writ, the previous writ, 
 with the sheriff's return, must be filed or produced to the Record 
 and Writ Clerk.^ 
 
 The return days to be inserted in these writs, are the same as in 
 the case of an attachment.^ 
 
 If the sheriff returns "issues" " to the first " or second distrin- 
 gas, or " issues " or nidla bona to the third, an order nisi for a 
 commission of sequestration may be obtained against the corpora- 
 tion, on an ex parte motion by the plaintiff; and upon proof of 
 due service of such order, and of continued default, such order will 
 be made absolute, on a like motion. '- 
 
 Ante, p. 465. 
 
 ^ A fee of 5s. is payable on sealinp; each 
 writ. Kegul. to Orel. Sclied. 4. Foi- forma 
 of these writs and. pracipe, see Vol. III. 
 
 " braithwaite's I'r. la4. 
 
 9 Ante, p. 464. 
 
 1" If the corporation has property, the 
 sherilf usually levies 4(),i. under the first 
 writ; 4/. under the second; ami the whole 
 
 rroperi V of the corporation under the third. 
 Iinde,'l4i). 
 n .See Lowton v. Mayor, &c., of Colches- 
 ter, 3 Mer. 540, n.; SHon, 1227. 
 
 12 .Scton, r227 ; Hraithwiiite"? Manual, 
 CI. For form of order, see tieton, 1261, 
 No. 7; and see jioBt, Chap. XXVI. § 7, 
 Knforcinij Decrees and Ordert. For forms 
 of motion paper, see Vol. III. 
 
 CH.YIir. §4. 
 
 Corporations: 
 Distringas. 
 
 Alias distrin- 
 aas. 
 
 Plurit s dis- 
 tringas. 
 
 How prepared 
 and issued. 
 
 Filintr writs. 
 
 Return day. 
 
 Motion for^e- 
 questration. 
 
 1 Ord. X. 4; IJraithwaite's Pr. 8.37. For 
 forms of artidavit smd praecipe, f-ea Vol. Hi. 
 
 •^ McKim V. Odom, 3 Bland, 407, 426 ; 
 Angfcll & Ames, Corp. § 667 el seq. In 
 JoiR-s (•. Boslon .Mill Corp. 4 Pick. 511, it 
 was said by Parker C. ■!. that the Supreme 
 Court of .Ma.ssachusett«, as a Court of 
 Efjuity, had authority to issue such pro- 
 ce-<He-t against corporations as may be is- 
 sued by the Knf^lish Chancery Court, as 
 diitringiis,K<\\xpMr?i''wn,^c. And see Hol- 
 land IV Crufr, 20 Pick. 321 ; Grew v. Breed, 
 12 Met. 363. 
 
 ' It is conceived that the writ would not 
 now bf i'-siicd without special ordi.T ; and 
 »cc Ord X. 10. 
 
 < Hinde, 140, 142. 
 
 • Seton, 1227, 1261; Braithwaite's Pr. 
 104.
 
 478 
 
 COMPELLING ArrEARANCE. — PROCEEDINGS IN DEFAULT. 
 
 Oil. vin.5 4- 
 
 Sequostr.i- 
 tioii : 
 
 liow pR'pared 
 and issued ; 
 
 how re- 
 turned ; 
 
 how dis- 
 charged. 
 
 Tlie conmiissiou is usually diivctcHl to four or more persons,^ 
 iiatued by the plaintift': directing them, or any three or two of 
 them, to sequester the rents and profits of the real estate, and tlie 
 goods and chattels and personal estate of the corporation, until 
 they shall appear to the i)laiiiti11''s bill, or the Court make further 
 order to the contrary. The conmiission is ])repared by the plain- 
 tiff's solicitor ; and will be issued by the Record and Writ Clerk, 
 upon filing with him a prcecipe, and producing the order directing 
 the conunission to issue.'^ 
 
 The return to a writ of sequestration is indorsed thereon ; ^ and 
 upon such return being made, the party prosecuting the contempt, 
 if he wishes to have another sequestration, or any further or other 
 remedy, must apply, specially, to the Court.* It is not the practice 
 to file the return.^ 
 
 A sequestration cannot be discharged till the corporation have 
 performed what they are enjoined to do, and paid the costs of the 
 several writs of distringas, and of the sequestration, including the 
 commissioners' fees; but upon their doing this, they may, upon 
 motion, get the sequestration discharged.® 
 
 Plaintiff usu- 
 ally appears 
 by default, 
 instead of 
 issuing con- 
 tempt process. 
 
 Interrogato- 
 ries may be 
 delivered to 
 defendant, 
 though he 
 has not 
 appeared. 
 
 Contents of 
 affidavit of 
 sen'ice. 
 
 Costs of 
 entering ap- 
 pearance for 
 defendant. 
 
 By one or other of these forms of process, appearance may, in 
 almost all cases, be compelled, after service of the copy of the bill 
 has been effected ; but as the plaintiff can himself enter an appear- 
 ance for the defendant, that, as has been already observed,'^ is the 
 course which is usually adopted in practice ; and it is rarely found 
 desirable to carry out process of compelling appearance. 
 
 Moreover, the plaintiff may proceed in tlie suit, by delivering a 
 copy of his interrogatories to a defendant who has made default in 
 appearing.^ 
 
 The affidavits filed for the purpose of proving the service of 
 a copy of a bill upon any defendant must state when, where, 
 and how the same was served, and by whom such service was 
 effected.® 
 
 The plaintiff having duly caused an appearance to be entered 
 for any defendant, is entitled, as against the same defendant, to 
 the costs of and incident to entering such appearance, whatever 
 may be the event of the suit ; and such costs are to be added to 
 any costs which the plaintiff may be entitled to receive from such 
 defendant, or be set off against any costs which he may be ordered 
 
 1 It is not essential that the commis- 
 sioners should be professional persons. 
 
 2 Braithwaite's I'r. 240. The writ must 
 be engrossed on parchment, and beara20«. 
 stamp. Kegul. toOrd. bched.4. For forms 
 of /Jj-aciyae, commission, and indorsement, 
 see Vol. III. 
 
 8 For form of a return nulla bona, see 
 Vol. III. 
 
 4 Braithwaite's Pr. 291. 
 6 Goldsmith v. Goldsmith, 6 Hare, 123, 
 129; 10 Jur. 5G1. 
 
 6 Harr. by Newl. 150; Ilinde, 143. 
 
 7 Ante, pp. 4G0, 472. 
 
 8 Ord. XI. 5; seepos«, p. 438. 
 
 9 Ord. X. 8; Davis v. Hole, 1 Y. & C 
 C. C. 440; 6 J dr. 335.
 
 AGAINST PARTICULAR DEFENDANTS. 
 
 479 
 
 to pay to such defendant ; but payment thereof is not to be other- 
 wise enforced, without the leave of the Court.^ 
 
 The defendant, on the other hand, notwithstanding an appear- 
 ance may have been entered for him by the plaintiff, may after- 
 wards enter an appearance for himself in the ordinary way ; - but 
 such appearance, by such defendant, is not to affect any proceeding 
 duly taken or any right acquired by the plaintiff, under or after 
 the appearance entered by him, or prejudice the plaintiff's right to 
 be allowed the costs of the first appearance.^ A defendant cannot, 
 however, take any proceeding in a cause until he has himself en- 
 tered an appearance, notwithstanding the plaintiff has entered one 
 for him. 
 
 Ch. VIII.§4. 
 
 and must do 
 so, before he 
 can take any 
 proceeding. 
 
 1 Ord. XL. 15. 
 
 2 See post, Chap. XIII., Appearance. 
 
 8 Ord. X. 9.
 
 CHAPTER IX. 
 
 INTERROGATORIES FOR THE EXAMINATION OF THE DEFEND- 
 ANTS IN ANSWER TO THE BILL. 
 
 Former 
 practice. 
 
 Intorrosato- 
 ries no longer 
 form part of 
 the biJI ; 
 
 but may be 
 filed sepa- 
 rately. 
 
 Time allowed 
 to file, 
 
 and deliver. 
 
 Should be 
 filed, not- 
 withstanding 
 pendency of 
 a demurrer. 
 
 Leave to file, 
 after time 
 expired. 
 
 Formerly, as we have already seen, a bill in Chancery contained 
 an interrogating part, preceding tlie prayer, which consisted of a 
 repetition of the stating and charging ])arts of tlic bill, in the form 
 of questions to be answered by the defendants. This, as has been 
 before observed, is by the late Act of Parliament directed to be 
 omitted from the bill ; ^ but, if the plaintiff desires to ol)tain dis- 
 covery or admission from any defendant, he may file interrogatories 
 for the examination of such defendant, within eight days from the 
 time limited for the defendant's appearance.^ If the defendant 
 •appears within the time limited, the plaintiff must deliver an office 
 copy of the interrogatories to the defendant or his solicitor within 
 eight days after such time ; ^ but if the defendant does not appear 
 within the time allowed, the plaintiff may deliver the interroga- 
 tories at any time after the time allowed has expired, but before 
 the appearance of the defendant, or within eight days after his 
 appearance,* 
 
 The interrogatories must be filed Avithin the time limited by the 
 General Orders, notwithstanding that a demurrer may be pending.^ 
 
 If the plaintiff allows the time for filing interrogatories to 
 expire before he has filed them, he cannot file them without special 
 leave, to be applied for in Court on motion, with notice, or in 
 
 1 15 & 16 Vic. c. 86, § 10 ; ante, p. 356. 
 
 2 15 & 16 Vic. c. 86, § 12 ; Ord. Al. 2. 
 This order applies to amended, as well as 
 original bills. A defendant need not ap- 
 pear to an amended bill unless he is re- 
 quired to answer it; and the intention of 
 the plaintiff to call tor an answer is indi- 
 cated by service of a duly sealed and 
 indoi-sed copy of the amended bill ; see 
 Braithwaite's I'r. 328; Braithwiiite's Man- 
 ual, 159. The interrogatories may be tiled 
 wiih the bill: Braithwuite's Pr. 38; and a 
 sealed copy may be served at the same time 
 as a copy of the bill: Leaman *;. Brown, 7 
 ■\V. K. .322, V. C. K.; but in such case, the 
 full time for appearing and for answering, 
 namely, thirty-six daj'S, must be allowed 
 
 to expire before the attachment for not an- 
 swering can be sealed: Braithwaite's Man- 
 ual, 184 ; and see Clieeseborough v. Wright, 
 28 Beav. 173; see Genl. bts. Mass. c. 113, 
 § 4; St. 18G2, c. 40. 
 
 '■^ Ord. XI. 4. If a copy is left at the 
 office of the solicitor by whom the defend- 
 ant has entered an appearance, it is sufli- 
 cient. IJowen v. Price, 2 l)e G., M. & G. 
 8'J'J, reversing, ih. 1 Drew. 307. The ser- 
 vice is effected in the .SMUie manner as that 
 of other documents which do not require 
 personal service; see ante, p. 455. 
 
 * Ord. XI. 5. 
 
 6 Harding v. Tingey, 10 Jur. N. S. 873, 
 V. C. K.
 
 INTERROGATOKIES FOR EXAMINATION OF DEFENDANTS. 
 
 481 
 
 Chambers on summons.^ In practice, the application is usually 
 made on summons in Chambers ;2 and, as a general rule, the 
 plaintiff will have to pay the costs.^ If the application is made 
 before the time has expired, it should be that the time may be 
 extended.^ 
 
 In like manner, interrogatories cannot, without a special order, 
 be deUvered after the time limited for so -doing has expired ; but 
 leave to deliver them after the time has elapsed, or for further 
 time so to do where it has not, may in a proper case be obtained 
 on summons at Chambers.'' 
 
 The notice of motion or summons must be served on the defend- 
 ants whom it is intended to interrogate, and who have appeared. 
 The order, if made on motion, is drawn up by the Registrar ; if 
 made on summons, it is drawn up in Chambers ; and where it 
 extends the time to file, or gives leave to file interrogatories, it 
 must be produced to the Record and Writ Clerk, at the time the 
 interrogatories are presented for filing.^ 
 
 Where, the defendant is out of the jurisdiction, the Court, upon 
 application, supported by such evidence as shall satisfy the Court 
 in what place or country such defendant is, or may probably be 
 found, may order that a copy of the interrogatories may be served 
 on such defendant in such place or country, or within such limits, 
 as the Court shall tliink fit to direct : and such order must limit a 
 time within which the defendant is to plead, answer, or demur, or 
 obtain from the Court further time to make his defence to the 
 bill.* The application is made by ex parte motion or summons, 
 supported by affidavit.' The copies of the bill and interroga- 
 tories may be served together;* and therefore, one application 
 embracing both objects is ordinarily made.^ 
 
 If the interrogatories cannot be served on a defendant, within 
 the jurisdiction, in the ordinary way, an ex x>arte application 
 for leave to substitute service may be made by motion, sup- 
 ported )>y affidavit, as in the case of an ajjplication to substitute 
 service of a copy of the bill.^° 
 
 Where the j»laintilf in an original suit had neglected to file his 
 interrogatories within tlie time limited, the plaintiff in a cross-suit, 
 
 Ch. IX. 
 
 lieave, or 
 further time, 
 to deliver. 
 
 Service of 
 notice of 
 application. 
 
 Order. 
 
 Defendant 
 out of juris- 
 diction : 
 
 leave to serve 
 interrogato- 
 ries; 
 
 how obtained. 
 
 Substituted 
 service. 
 
 Suits and 
 cross suit. 
 
 • Ord. XI. 3; sec for applications of this 
 fort, Kinpsoii V. liowlev, '!. S. & (i. A p. 3; 
 DcniH w. Kochussen, 4'jur. N. S. a'Jh, V. 
 C. W.; Dakins r. (iarnitt, ib. 579, V. C. 
 K. As to liling .separate sets, sec puil., 
 p. 4Hr,. 
 
 2 Hrailhwaitc's I'r. 36. 
 
 « Dukins r. (lurrat, 4 .Jur. N. S. 579, V. 
 C. K. l-'or I'ornis of notice of motion and 
 Butninons, sec Vol. III. 
 
 * Ord. X.\.\VII. 17 ; .sec Garwood t). 
 Curteis, lO.Iur. N. S. Iii9 ; 12 W. K. 509, 
 V. (J. W.; Bignold V. Cobbold, 11 Jur. N. 
 
 vol,. 1. 
 
 S. 152, V. C. S. For form of order, see 
 Scton, 1243, No. 3; and for form of sum- 
 mons, see Vol. III. 
 
 6 Hraiiliwaitc's I'r. 36. 
 
 Ord. X. 7 (1) (2); nnie, p. 452. 
 
 7 l-'iir firms of motion paper, summons, 
 and iiflidavit, see Vol. III. 
 
 8 Lcaman v. IJrown, 7 W. U. 322, V. C. 
 K. 
 
 * See (in/e, p. 4B1. 
 
 1" Anlt, (). 449. For form of motion pa- 
 per, sec Vol. III. 
 
 81
 
 482 
 
 INTERROGATORIES FOR EXAMINATION OF DEFENDANTS. 
 
 On. IX. 
 
 May be filed 
 to written 
 bill. 
 
 How written ; 
 and intituled. 
 
 Copies for 
 service : 
 
 Should only 
 include those 
 the particular 
 defendant has 
 to answer. 
 
 Service of one 
 copy on each 
 solicitor 
 sufficient. 
 
 Indorsement. 
 
 by being tlie lirst to lilo iiitorrogatorics, was held entitled to have 
 his bill answered tiret.' 
 
 The interrogatories are settled and signed by counsel ; "^ and 
 are re(juired to he divided into paragraphs, and numbered in the 
 form givi'u in the General Orders, and the interrogatories which 
 Ciich defendant is required to answer must be specified in a note 
 at the end.^ 
 
 AVhere a written bill is allowed to be filed, on an undertaking 
 that a ]irinted bill shall be afterwards filed,'' interrogatories may 
 be filed before the filing of the printed bill.'' 
 
 Interrogatories are filed at the Record and Writ Clerks' Office;® 
 and they must be written on paper of the same description and 
 size as that on which bills are printed ; ' and be intituled in the 
 cause, so as to be in strict agreement with the names of the 
 parties as they appear in the bill, at the time the interrogatories 
 are filed.^ 
 
 The copies for service are prepared by the plaintift''s solici- 
 tor, but must be examined with the original, and the number 
 of folios counted, by the Clerks of Records and Writs : who, 
 if the copies are duly stamped and properly written, will mark 
 them as office copies.* The copy for service on any defend- 
 ant should only contain the interrogatories which such de- 
 fendant is required to answer.^" If the copies are intended 
 to be served before appearance, a copy must be served on each 
 defendant, in like manner as the copy of the bill is required to 
 be served ; " but if served after appearance, it is sufficient to 
 serve one copy on each solicitor by whom an appearance has 
 been entered, notwithstanding he may have appeared for more 
 than one defendant.^^ 
 
 The interrogatories to be filed, and each copy for service, must 
 be indorsed with the name and place of business of the plaintiff's 
 solicitor, and of his agent, if any ; or with the name and place of 
 
 1 Garwood v. Curteis, 10 Jur. N. S. 199; 
 12 W. K. 509, V. C. VV. 
 
 2 Interrogatories are not specified in 
 Ord. VIII. 1, ainonfj the documents re- 
 quiring; counsel's signature; but the form 
 of interrogatories in Ord. Sched. B. as- 
 sumes tluit the name ot counsel will be 
 attacheil. 
 
 3 Ord. XI. 1, and Sched. B. For forms 
 of interrogatories and foot-note, see Vol. 
 III. 
 
 * See 15 & 16 Vic. c. 86, § 6 ; ante, p. 
 396. 
 
 * Lambert v. Lomas, 9 Hiire Ap. 29; 
 18 ,Jur. 1008. 
 
 6 Ord. I. 35. No fee is payable for 
 filing. Braithwaite's Pr. 35. 
 
 1 Urd. 6 March, 1660, r. i6 ; as to such 
 paper, see ante, p. 306. Dates and sums 
 may be expressed by figures. 
 
 8 Braithwaite's Pr. 36. 
 
 9 Ord. XI. 4. The copies for service 
 are usually written on brief paper. A fee 
 of 6s. higher scale, or Is. lower scale, is 
 paj'able, in Chancery Fee Fund stamps, on 
 marking each ofHce copy. Kegul. to Ord. 
 Sched. 4. The stamp is impressed on, or 
 allixed to, such copy. A pratcipe is re- 
 quired to be left; for form, see Vol. III. 
 
 10 Ord. XI. 4. 
 
 11 See Old. X. 1; ante, p. 442. 
 
 12 Hraithwaite's Pr. 37 ; but if he appears 
 as properly concerned for one defend:itit, 
 and as sigent for another, two copies should 
 be served; see ib. 308, n. Any copy sealed 
 for delivery, may be resealed, at any 
 time before delivery, and without further 
 fee.
 
 INTERROGATORIES FOR EXAMINATION OF DEFENDANTS. 483 
 
 residence of the plaintiff, where he acts in person ; and, in either Ch. ix. 
 
 case, with the address for service, if any.^ " y ' 
 
 Under the former practice it was held, that as the object of the interrogato- 
 interrogatories was to compel an answer to such facts only as were founded on' 
 material to the plaintiff's case, it was necessary that every inter- biU. 
 rogatory should be founded upon statements made in the former 
 part of the bill ; therefore, if there was nothing in the prior part 
 of the bill to warrant an interrogatory, the defendant was not 
 compellable to answer it.- This practice was considered neces- 
 sary for the preservation of form and order in the pleadings, and 
 particularly to keep the answer to the matters put in issue by the 
 bill ; ^ and it is conceived that this practice still continues. But 
 a variety of questions may be founded on a single allegation, if Many qnes- 
 they are relevant to it ; thus, if a bill is filed against an executor tions may b» 
 
 *' ' ' . ° asked on a 
 
 for an account of the personal estate of his testator : upon the single 
 single allegation that he has proved the will, may be founded ^^^o^'"^"- 
 every inquiry which may be necessary to ascertain the amount of 
 the estate, its value, the disposition made of it, the situation of 
 any part remaining undisposed of, the debts of the testator, and 
 any other circumstance leading to the account required.* This 
 rule is stated and acknowledged by Lord Eldon, in Faulder v. 
 Stxuirt^ where a defendant declined, by his answer, to set forth 
 the particulars of a certain consideration, which it was alleged in 
 the bill the defendant pretended Avas paid by him for the purchase 
 of a share in a newspaper, which was the subject of the liti- 
 gation. His Lordship, upon the question of the sufficiency of 
 the answer being argued before him, said, "It all depends upon 
 this; whether there is such a charge in the bill, as to the payment 
 of the consideration, as entitles the plaintiff to an answer, not 
 only whether it was paid, but as to all the circumstances, when, 
 where, &c. I have always understood that a general charge en- 
 abled you to put all (juestions ui)on it that are material to make 
 out whether it was paid ; and it is not necessary to load the bill, 
 by adding to the general charge, that it was not paid, that so it 
 would appear, if the defendant would set forth when, where, &c. 
 The old rule was, that making that substantive charge, you may, 
 in the latter part of the bill, ask all questions that go to prove or 
 disprove the truth of the fact so stated." ^ 
 
 It is to be observed, however, that the interrogatories must, Must bo con- 
 in all cases, be confined to the substantive case made bv the ''"^!' ^? *■?"?, 
 
 ..,,,,... •' made by biU; 
 
 bill, and tliat the plaintiff cannot extend his interrogatories in 
 
 » Onl. Ill, 2, 5; nnU, pp. 3!»7, 40.'i, 454. * Ihid. 
 
 For form ol inOorsem"nt, kcc Vol. 111. t 11 Vps. 296, 801; see also Mucklcaton 
 
 '■' Atloriicv-Ocneral V. VVhorwood, 1 Vcs. «. IJrown, 6 Ves. 62, 02. 
 
 S. 634, 53H.' a 11 Vcs. aoi. 
 
 « Ld. Ked. 46.
 
 484 
 
 INTERROGATORIES FOR EXAMINATION OF DEFENDANTS. 
 
 Cii. IX. 
 
 hut if an- 
 swered, the 
 matter is put 
 ill issue. 
 
 Interrogato- 
 ries were 
 usually an 
 echo of 
 stating part, 
 under former 
 practice ; 
 
 but are now 
 frequently 
 more minute. 
 
 Defendant 
 may be inter- 
 rogated as to 
 
 siu'li :i maiiiioi- as to eoini)cl a discovery of a distinct matter, 
 not iiu'ludcd ill (hat case; and therefore, where a bill prayed a 
 discovery in aid of an action at Law nnder the Stock Jobbing 
 Act,^ as to an advance, by the i)lainlilf to the defendant, of a 
 sunt of money Avithout legal consideration, which it was alleged 
 in the bill was advanced as the premium for liberty " to put 
 upon, deliver, or refuse stock," and in consideration of certain 
 contracts relating to stock, which were void under that Act, and 
 the defendant denied, by his answer, that the plaintiff did advance 
 or pay to the defendant the sum mentioned, or any other sura, as 
 the premmm, &c. (as charged in the bill), to which answer an 
 exception was taken, because the defendant had not negatived the 
 receipt of the money in every way which had been suggested in 
 the interrogatory : Lord Eldon overruled the exception, because 
 the interrogatory pointed at a case within the fifth and eighth 
 sections of the Act, in respect of which no bill of discovery was 
 given by the Act, whereas the allegations in the bill related 
 to cases within the first section of the Act, in respect of which 
 a right to file a bill of discovery was given by the second 
 section.'-^ 
 
 It may be noticed here that, in The Attorney- General v. Wlior- 
 wood^ where interrogatories in a bill were directed to particular 
 facts which were not charged in the preceding part, and the de- 
 fendant, though not bound to answer them, did so, and the answer 
 was replied to : Lord Hardwicke held, that the informality in the 
 manner of charging was supplied by the answer, and that the facts 
 were properly put in issue ; " for a matter may be put in issue by 
 the answer as well as by the bill, and, if replied to, either party 
 may examine to it." ^ 
 
 Although, upon the authority of the cases above cited, it appears 
 that a j)laintiff might formerly ask all questions necessary to make 
 out a general allegation in the bill, yet, in point of fixct, it was the 
 common practice to make the interrogating part an exact echo of 
 the stating and charging part of the bill. Now, however, this 
 practice is not so strictly adhered to ; for modern bills, being so 
 much more concise than bills formerly were, it is often necessary 
 or desirable, in the interrogatories, to inquire after particulars in- 
 cluded in a general allegation in the bill. And it would seem 
 that, to some extent at least, the old rule requiring an allegation 
 in the bill, as a foundation of the interrogatories, has been relaxed: 
 for it has been held, that a defendant may be hiterrogated as to 
 books and pajjers, in his possession, relating to the matters in 
 
 1 7 Geo. II. c. 8, repealed by 23 & 24 
 Vice. 28. 
 
 2 Bullock V. Richardson, 11 Vcs. 373, 
 375. 
 
 « 1 Vcs. S. 534. 
 < lb. 538.
 
 INTERROGATORIES FOR EXAMINATION OF DEFENDANTS. 
 
 485 
 
 question in the suit, although there is no allegation in the bill that 
 he has any.^ This, it is conceived, would scarcely have been 
 allowed under the former practice. It has also been determined 
 that, under the new j^ractice, it is not necessary to introduce in 
 the bill allegations suggesting imaginary flicts, in order to found 
 an interrogatory; thus, Avhen a bill alleged the existence of a 
 mortgage, known to the plaintiif, but did not allege that there 
 were others, an inteiTogatory whether there were others was al- 
 lowed.^ 
 
 Interrogatories to an amended bill should, in the case of original 
 defendants from whom an answer is required, be confined to the 
 parts added by the amendment, if the amendment is made after 
 answer, or after the expiration of the time within which the plain- 
 tiif might have filed interrogatories to the original bill.^ Where, 
 however, in such a case, it is desired to interrogate the original 
 defendants beyond the amendments, a sjiecial application for leave 
 so to do must be made by motion or summons.* In the case of 
 new defendants, added by the amendments, the interrogatories 
 may extend to the whole bill : the bill being, as to them, an origi- 
 nal bill ; but a new set of interrogatories must be filed, as the old 
 interrogatories, if any, cannot be amended as to the new defend- 
 ants.* Where the plaintiff, having amended his bill after answer, 
 filed interrogatories to the whole bill, they were, on the a]){)licati(>n 
 of the original defendants, ordered to be taken off the file ; but 
 leave was given to file new interrogatories confined to the amend- 
 ments;® and where, after a defendant had put in a voluntary 
 answer, the plaintiff amended his bill, it was held that he could 
 only require an answer from such defendant to the amendments.'^ 
 A second set of interrogatories to the same bill may, if the time 
 for filing interrogatories has not expired, be filed, without order, as 
 against defendants who were not previously interrogated : for in- 
 stance, if the plaintiff files interrogatories for the examination of 
 two or more of several defendants, and afterwards desires to inter- 
 
 Ch. IX. 
 
 ^■^ Y ' 
 
 documents, 
 without alle- 
 gation that 
 he has any. 
 Suggestion of 
 imaginary 
 facts no 
 longer neces- 
 sary to found 
 interrogato- 
 ries. 
 
 Interroga- 
 tories to 
 amended bill 
 should, as 
 to original 
 defendants, 
 be contined to 
 amendments. 
 
 Leave to 
 interrogate 
 beyond 
 amendments. 
 New defend- 
 ants may be 
 interrogated 
 to the whole 
 bill. 
 
 Interrogato- 
 ries, if U)0 
 extensive, 
 may be 
 ordered oflF 
 the lile. 
 
 Separate (<et8 
 may be filed, 
 as to separate 
 defendant*. 
 
 1 I'erry r. Tur|)iii, Fvay Ap. 4!(; 18 Jur. 
 694; I'arkinson f. Chambers, 1 K.&J. 7'2 ; 
 Mansfll V. Feeney. 2 J.& II. 313,318; but 
 the Court discourages exceptions to the 
 answer, on the ground that the interroga- 
 tory a.H t'> Ijooks and papers is not sutli- 
 ciciitly answered; sucii discovery being 
 now oOtaiiialiie in Chauiber.t, under 15 iSc 
 10 Vic. c. M) § IN; see Law v. London 
 Indi.sputalile Company, 10 Hiire Ap. 20; 
 Barnard v. Hunter, 1 Jar. N. S. 1005, V. 
 C. S. 
 
 2 Marsh v. Keith, 1 Dr. & Sm. 342; 6 
 Jur. N. S. 1182; and .•'ee llu'lsoii v. (iren- 
 Ml, 3 (iiff. 38S; H .Jur. N. S. h78; I'inard 
 •. B ebv. L. H. 1 Kq. C23; 12 Jur. N. S. 
 117, V.C. K. 
 
 8 Wich V. Parker, 22 Deav. 69; 2 Jur. 
 
 N. S. 582; Denis v. Rochussen, 4 Jur. N. 
 S. 298, V. C. W. ; Drake v. Symes, 2 De 
 (i., K. & .1. 81; .Southam|)ton Steamboat 
 (Jompaiiv V. Kawlins, 10 Jur. N. S 118, 
 M. U.; i2 \V. 1{. 285. 
 
 •• See Deiiis r. Hocluissen, and South- 
 anipton Steamboat Compan)- v. l{awlins, 
 ubi sup. ; see also Attorney-Generiil v. 
 Kees, 12 IJeav. 50, 54. 
 
 6 I raitliwaite's I'r. 310. 
 
 Drake w. Symes, 2 De G., J. & F. 81. 
 For form of notice of motion in such case, 
 see Vol. III. 
 
 7 Denis V. Kochus«en, 4 Jur. N. S. 298, 
 V. C. W.; Wich V. I'arker, 22 Heav. 5;»; 2 
 .lur. N. S. 5.'i2; and seey^jsi, Chap. XVll. 
 § 4, Kxccjdions to Aniwer.
 
 486 
 
 INTERROGATORIES FOR EXAMINATION OF DEFENDANTS. 
 
 Oh. IX. 
 
 Amondmont 
 of former set. 
 
 Order to 
 anioiid : how 
 obtained. 
 
 Answer: how 
 waived. 
 
 Special order 
 to amend. 
 
 Amend- 
 inc(ite: how 
 made. 
 
 Service of 
 amended in- 
 terrofjatorie.', 
 how effected. 
 
 rognto tlio otlior doiondiiiits to tlie same bill, he may file a second 
 set of interrogatories for the examination of such other defendants.* 
 If the time has expired, an order. giving leave to tile the second 
 set of interrogatories is necessary. 
 
 If the interrogatories first tiled have not been answered by any 
 defendant, the plaintiff may, under an order, amend such inter- 
 rogatories, so as to require an answer from such other defendants ; 
 but the order to amend must express the object; and the defend- 
 ant as against Avhom the interrogatories Avere first filed, must be 
 served with a copy of the interrogatories as amended.'^ And, 
 generally, interrogatories may be amended under an order as of 
 course, to be obtained on motion, or on petition at the Rolls, at any 
 time before an answer is put in.' 
 
 If the plaintiff desires to waive an answer from the defendant, 
 for whose examination interrogatories have been filed, but who 
 has not answered them, he may, at any time before filing replica- 
 tion, or setting down the cause for hearing, obtain as of course, 
 on motion, or on petition at the Rolls, an order to amend the 
 interrogatories, by striking out so much of the heading, and of 
 the note at the foot thereof, as requires an answer from such de- 
 fendant ; * but if he has been served with a copy of the interroga- 
 tories, his consent should be obtained ; service of the interrogato- 
 ries, as so amended, upon co-defendants who have answered is 
 unnecessary. 
 
 Whei-e an order for leave to amend the interrogatories cannot, 
 under the ordinary practice, be obtained as of course, the applica- 
 tion for it must be made on summons at Chambers; if, however, 
 the defendants will consent, it may be obtained on petition of 
 course at the Rolls.^ 
 
 Amendments of interrogatories are settled and signed by coun- 
 sel ; and the amendment is made in the same manner as in the 
 case of bills,® Thus, if the amendments exceed two folios of ninety 
 words in any one place, a new engrossment of the interrogatories 
 must be made and filed : in other cases, the amendments will be 
 made by the Record and Writ Clerk, on the draft, signed by coun- 
 sel, and the order to amend, being left with him.'' 
 
 An office copy of the interrogatories, as amended, must be 
 served on each defendant who is required to answer them, or on 
 his solicitor, if he has appeared by one. The service is effected in 
 
 1 Braithwaite's Pr. 35. 
 
 2 Jhul. ; I'.raitliwaite'.s Manual, 183. 
 
 2 IJraithwiiite's I'r. 309. For form of 
 order on motion, sec Seton, 1252, No 2; 
 and for forms of motion paper and peti- 
 tion, ^ee Vol. III. 
 
 * Braithwaite's I'r. 310, 311. Where 
 the interrogatories do not extend to other 
 
 defendants, the application sliould be to 
 take them off the file. For forms of motion 
 paper and petition, see Vol. III. 
 
 5 See Braithwaite's Pr. 310. 
 
 6 Ante, p. 422. 
 
 ' Braithwaite's Pr. 311. No fee is pay- 
 able on amending interrogatories. Ibid.
 
 INTEREOGATORTES FOR EXAMINATION OF DEFENDANTS. 
 
 487 
 
 the same manner as service of the copy of the original interrog- 
 atories. A copy of the former interrogatories, which, though 
 stamped for service, has not actually been served when they are 
 amended, may be amended, re-examined, and restamped at the 
 Record and Writ Clerks' Office for service, without further fee, on 
 aprceape for that purpose being left there.-^ 
 
 Where the interrogatories are amended, each defendant pre- 
 viously served has his full time for answering again, fi-om the date 
 of the service of the copy of the amended interrogatories.^ 
 
 The costs of preparing inteiTogatories, which have not been 
 filed in consequence of admissions being subsequently entered into 
 between the parties, will be allowed on taxations as between party 
 and party.' 
 
 Ch. IX. 
 
 Time to an- 
 swer, after 
 amendment. 
 
 Where costs 
 of interroga- 
 tories al- 
 lowed, though 
 not filed. 
 
 1 Ibid. For form of vrcecipe, see Vol 
 III. 
 
 2 Braithwaite's Pr. 311. As to the time 
 allowed to answer, see post, p. 488. 
 
 8 Davies v. Marshall, 1 Dr. & S. 564; 7 
 Jur. N. S. 669.
 
 CHAPTER X. 
 
 PROCESS TO COMPEL, AND PROCEEDINGS IN DEFAULT OP 
 
 ANSWER. 
 
 Section I. — Against Defendants not privileged, nor subject to 
 
 disability. 
 
 Interrogato- 
 ries for 
 deCcndant's 
 examination: 
 
 Time for 
 answering ; 
 
 further time. 
 
 Penalties for 
 not answer- 
 ing in due 
 time. 
 
 Where tlie pLaintifF requires the defendant to put in an answer 
 to the bill, whether original or amended, he must, as we have seen, 
 file interrogatories for his examination ; and the defendant must 
 put in his plea, answer, or demurrer, not demurring alone, within 
 twenty-eight days from the delivery to him or his solicitor of a 
 copy of the interrogatories which he is required to answer ; ^ but 
 where, using due diligence, he is unable to put in his answer within 
 the time allowed, the Judge, on sufficient cause being shown, may 
 enlarge the time, as often as he deems right, on such (if any) 
 terms as to the Judge seem just.^ 
 
 If the defendant does not answer within the time allowed, and 
 procures no enlargement of the time, he is subject to the following 
 liabilities : — 
 
 1. An attachment may be issued against him.' 
 
 2. He may be committed to prison, and brought to the bar of 
 the Court, 
 
 3. The plaintiff may file a traversing note, or proceed to have 
 the bill taken pro confesso against him,* 
 
 1 Ord. XXXVII. 4. 
 
 2 Ord. XXXVII. 8. The application 
 for further time to answer is m;i(Ie on sum- 
 mons in Chambers; see post, Chap. XVII. 
 § 3, Answers. 
 
 3 See Miitter of Vanderbilt, 4 .John Ch. 
 58. If the plaintiff makes oath that a dis- 
 covery is necessary, he is entitled to an 
 order that the defendant answer the bill 
 or be attached; and the Court will not, in 
 that stage of the cause, infjuiro whether a 
 di-covery isn'-cessary. Stafford);. I5iown, 
 4 Paige, 360. A subpana returnable on 
 Sunday is irregular, and will not warrant 
 the issuing of an attiichment for dis- 
 obedience thereof, aa no Court can be held 
 
 on that day for any purpose. Gould v. 
 Spencer, 5 Paige, 541. 
 
 * This is the express provision of Art, 
 13 of the IGth Order of Mav, 1845; Sand. 
 Old. 983; 7 Peav. xxiii. ; 1 Phil. Ixviii. ; 
 but is omitted in Ord. XXXVIII. 4, cor- 
 responding to that Art., though retained in 
 Ord. XXXVII. 6, corresponding to Art. 15 
 of the ICth Order. This appears to be an 
 accidental omission; but it is clear that 
 the consequences, though not expressed in 
 the General Order, of a defendant making 
 default in answering, remain tlie sanie as 
 before; see Ord. XII., XIII., and XXII. 
 For table of process for want of answer, 
 see Setou, 1267,
 
 AGAINST UNPRIVILEGED DEFENDANTS. 
 
 489 
 
 It may be remarked, that if tlie plaintiif has to give security for 
 costs, the day on which the order to give security is served, and 
 the time thenceforward until and inchiding the day on which such 
 security is given, are not to be reckoned in the computation of the 
 time ^ allowed the defendant for answering. 
 
 Where the defendant thus becomes liable to be attached, the 
 plaintiff's solicitor may prepare a writ of attachment ; ^ the in- 
 dorsement of Avhich states it to be for not answering.^ To procure 
 the sealing of this writ, an affidavit of the service or delivery of 
 the inteiTogatories must be produced to the Record and Writ 
 Clerk ; * and a prcecipe must be entered and left in the usual man- 
 ner.^ The writ must be directed to the sheriff or other proper 
 officer, and lodged with the under-sheriff, deputy-sheriff, or other 
 proper person, as before explained.^ If the defendant is in prison, 
 the writ must be lodged with the keeper as a detainer.'^ 
 
 When there is just reason to believe that any defendant means 
 to abscond before answering the bill, the Court may, on the ex 
 parte application of the plaintiff, at any time after an appearance 
 has been entered for him by the plaintiff, order an attachment for 
 want of answer to issue against him ; and such attachment is to 
 be made returnable at such time as the Court directs.^ Such ap- 
 plication should be made by motion, supported by affidavit of the 
 grounds for believing that the defendant means to abscond before 
 answering, and by the Record and Wiit Clerks' certificate of an 
 appearance having been entered by the plaintiff.® 
 
 It is customary for the plaintiff's solicitor to write to the defend- 
 ant's solicitor, calling for an answer, before the attachment is 
 issued. The effect of such a letter is, that the plaintiff, on Avhose 
 behalf it is given, precludes himself from issuing the attachment, 
 until the defendant has had a reasonable time, either to put in his 
 answer, or to (jl>tain an order for further time so to do.^" 
 
 An order for further time cannot, in strictness, be granted after 
 an attachment ; moreover, the writ is considered to issue the first 
 moment of the day on which it is sealed and tested." An attacli- 
 
 Ch. X. § 1. 
 
 When attach- 
 ment may 
 be issued, 
 before time 
 to answer 
 has expired. 
 
 Effect of 
 giving notice, 
 before issuing 
 the writ. 
 
 After 
 
 attachment, 
 order for 
 further time 
 irregular. 
 
 1 (»rd. XXXVir. 14. 
 
 2 Sci- iivU, p. 404. 
 
 8 For form'- of attachment and indorse- 
 ment, see Vol. HI 
 
 ♦ Uraithwiiite'sPr. 164. An attachment 
 •will l)e ih^ned on an affidavit that the 
 defeiubint's sulicitnr lia^ admitted tlie de- 
 livery to him of tlie interro^at'Ties Side- 
 botlom r. .Atkins, 4 .lur. N. S. '.142, \ . V,. S. 
 If no ni)i>"«r nice ha-" l>i'eM entered, an 
 afiidiivit of the "Tvice of tlie bill i-t also 
 nfice'Piiry. Hraithwiiite's I'r. 1<;5; and if 
 th« defeii'lnnt lias nbtiiiiied an order en- 
 lar(;ii ^ the time to answer, it should be 
 tliowii l>y the aflidavit, or by an <iflice 
 copy of the order, that such time has 
 
 elapsed. Ih. 164. For form of affidavit, 
 eee Vol. III. 
 
 ^ Ante, p. 465. For form of prcecipe, 
 see Vol. III. 
 
 8 Ante, p. 46G. 
 
 7 See ante. p. 466. 
 
 8 Ord. XII. 1. 
 
 * For fdrins of affidavit and motion pa- 
 per, '^ee Vol. III. 
 
 in Hiirrilt v. lJ;irritt, 3 Swan.st. 305, 390; 
 Tavlor V. I''islier, 6 Sim. 506. Tliese cases 
 were before the iiholitioii of the Six(/lerk.s; 
 but solicitor.^ have adopti^d the practice. 
 
 11 Stephens ». Neale, 1 Mud. 550; I'etty 
 V. Lonsdale, 4 M. & C. 645, 648; 3 Jur. 
 1186.
 
 400 
 
 COMrELLINO ANSWER. 
 
 rROCEEblNQS IN DEFAULT. 
 
 Cu. X. 5 1- 
 
 Ketuni to the 
 attachment. 
 
 On sheriff's 
 return, cepi 
 corpits : 
 
 Order for 
 messenger. 
 
 Course, 
 
 ■where 
 
 defendant is 
 apprehended 
 by mes- 
 senger: 
 
 Defendant to 
 be brought 
 to the bar; 
 
 or entitled to 
 his discharge. 
 
 Where mes- 
 senger finds 
 defendant in 
 prison. 
 
 Where 
 messenger 
 returns non 
 est inventus. 
 
 On sheriff's 
 return, 
 "arrested 
 and in 
 prison : ' ' 
 
 mont is tlioroforo regular, and not to be set aside, if sealed before 
 an order i'or fiirtlier time has been obtained.^ When an attach- 
 nu'nt has been issued, but has not been executed at the time an 
 ajiplioation for further time is heard, the plaintitf may consent to 
 an order for further time beinuj made, on the condition that the 
 attachment is not to be thereby prejudiced ; but such condition 
 should appear by the order. 
 
 The sheriff may either return cepi corptts, attached and in prison, 
 or 9iO?i est inventus ; ^ and it will be convenient to consider, sepa- 
 rately, the course to be adopted by the plaintiff, in respect of each 
 one of such returns. 
 
 First : If the sheriff attach the defendant, and, taking bail, re- 
 turn accordingly,* the plaintiff is entitled, as of course, to move, 
 upon production of the sheriff's return, for an order that the mes- 
 senger attending the Court may apprehend the defendant, and 
 bring him to the bar of the Court.* The order, when drawn up, 
 is delivered by the registrar to the messenger, who thereupon pro- 
 cures the Lord Chancellor's warrant to apprehend the defendant, 
 and proceeds to execute the same. If there is a vacancy in the 
 office of messenger, the sergeant-at-arms will be ordered to bring 
 up the defendant.^ 
 
 If the plaintiff adopt this course, and the defendant is taken into 
 custody by the messenger, the plaintiff must take care that the 
 defendant be brought to the bar of the Court by the messenger, 
 within ten days after he was so taken into custody, and within 
 thirty days after his arrest by the sheriff: ® otherwise, the defendant 
 is entitled to his discharge, without payment of the costs of the 
 contempt : which, in such case, are to be paid by the plaintiff.' 
 But where such defendant does not put in his answer within eight 
 days after such discharge, the plaintiff may cause a new attachment 
 to be issued against him, for want of his answer.* 
 
 If the messenger finds the defendant in prison, he lodges the 
 order and warrant with the keeper, as a detainer, and makes his 
 return accordingly ; whereupon the plaintiff may cause the defend- 
 ant to be brought to the bar, under a writ of habeas corpus? 
 
 Where the messenger is unable to find the defendant, he makes 
 a return to that effect; and the plaintiff may then obtain an order 
 for the sergeant-at-arms to apprehend the defendant. 
 
 Secondly : If the sheriff arrest the defendant, and commit hira 
 
 1 Kirkpatrick v. Meers, 2 Sim. 16; Tay- 
 lor V. Fisher, 6 Sim. 566. No service of 
 an order for time is now necessary. 2 
 Smith's Pr. 131. 
 
 2 For an explanation of these several 
 retnrn«, see ante, pp. 470, 471; and as to 
 enforcing a return, see ib. p. 470. 
 
 8 As to bail, see ante, p. 468. 
 
 4 For form of Order, see Seton, 1260, No. 
 2 ; and for form of motion paper, see Vol. 
 III. 
 
 <> Mncnab v. Kensal, 2 Sim. 16. 
 
 6 Se« post, p. 491. 
 
 7 Ord. XII. 2. 
 
 8 Ibid. 
 
 » See post, p. 493.
 
 AGAINST UNPRIVILEGED DEFENDANTS. 
 
 491 
 
 to prison, or detain him if already in prison, and return accord- 
 ingly,^ the plaintiff is entitled, upon production of the return, to 
 an order for a writ of habeas corpus cum causis directed to the 
 keeper of the prison, or other officer in whose custody the defend- 
 ant is, commanding him to bring the defendant to the bar of the 
 Court.^ This order will be made on petition or motion, as of 
 course,^ The writ will be sealed at the Record and Writ Clerks' 
 Office, on production of the order ; and must be made returnable 
 on a day certain. Usually one of the days appointed for hearing 
 motions is named ; but if the plaintiff is limited in time, another 
 day may be fixed.* 
 
 The defendant must be brought to the bar of the Court within 
 thirty days after he is lodged or detained in prison under the at- 
 tachment, or he will be entitled to his discharge, without paying 
 the costs of contem))t ; which in such case will have to be paid by 
 the plaintiff.^ But the plaintiff may, at the expiration of eight 
 days after such discharge, issue fresh process, if the answer be not 
 filed in the mean time.^ During vacation, the prisoner may be 
 brought up to the private house of the Judge.'' 
 
 In either of these cases, whether the defendant be brouglit to 
 the bar of the Court by the messenger, or upon habeas corpus by 
 the officer in whose custody he is, the defendant, if he persists in 
 his contempt, Mall, uj)on motion of course by the plaintiff, be turned 
 over to Whitecross Street Prison ; ^ or remanded to that prison, if 
 already imprisoned or detained there.® The plaintiff may then 
 either press for an answer, or proceed to take the bill jyro confesso 
 against the defendant.^" 
 
 If the plaintiff determines to press for an answer, he sliould 
 move for an order tliat the defendant may remain in custo<ly until 
 he has answered the bill.^^ Notice of the motion should be served 
 
 Ch. X. § 1. 
 
 Order for 
 habeas. 
 
 Habeas: how 
 issued ; 
 
 return day; 
 
 Time allowed 
 to bring 
 defendant to 
 the bar. 
 
 In vacation. 
 
 Proceedings 
 on defendant 
 being 
 brought to 
 the bar: 
 
 order to turn 
 over; or 
 remand. 
 
 Proceedings 
 to detain 
 defendant in 
 custody, till 
 answer. 
 
 1 The practice here stated will aho ap- 
 ply to a cii^e where the keeper of a prison, 
 in which the defendiint is confined, certi- 
 fies thiit the defendant is in his custody. 
 
 2 For form of order, see Seton, 1262, 
 No. 8. The plaintitr, instead of adopting 
 this course, iw\y serve notice of motion, 
 under Ord. X.XIF. r. 1, to take the bill/;co 
 con/V«*j, as hereiifter explained; see /ws<, 
 p. 510. 
 
 • For forms of petition and motioti pa- 
 per, see Vol. III. 
 
 • Brailhwaite's I'r. 224, 225; and seo 
 pod/, p. 492, n. 7. Wlien the writ h;is 
 been duly exec\itnd and rcfuniod, it should 
 be tiled in the Ii<'cord atid Writ ('h^rks' 
 Offic.-. Oldficl.i V. Cohhftt, 2 I'hil. 2hl). 
 For forms of writ, indorsement, and jn-a- 
 cipe, ion Vol. III. 
 
 ' Ord XII. 3. 
 
 • Ilii'l. Vacations will he reckoned in 
 computing the thirty d:iys. Fortescuc v. 
 
 Ilallett, 3 .lur. N. S. 806, V. C K.. where 
 it was held, that the stat. 11 Geo. IV. & 1 
 Will. IV. c. 30. § 1.5, r. 5, which allowed 
 the plaintiff till the fourth (hiy of the en- 
 suing term, if the thirty days expired in 
 vacation, is superseded by the General 
 Oriler; see also Flower «. Bright, 2 J. & 
 H. 590. 
 
 7 (;lMrk V. Clark, 1 Phil. 116. 
 
 8 For form of order, see Seton, 1262, 
 No. 10. 
 
 'J J bid No. 12. 
 
 1" The phiiiitifl" may also, with leave of 
 the Court, file an answer in the nnme of 
 the <ler.-iidant, under 11 (leo. IV. & 1 
 Will. IV. c. 30, § l."), r. 11; .see /j(< p. 
 472; hut this course is practically nbol- 
 i.shed, MS the planitifi" may file a travers- 
 ing note; ncp jx)sl, p. 513. 
 
 '1 For form of order, see Seton, 1264, 
 No. 14.
 
 492 
 
 COMPELLING ANSWER. PUOCEEDINGS IN DEFAULT. 
 
 Cii. X. 5 1. 
 
 PmcocdiriRS 
 to take bill 
 pi-o confesso : 
 
 Habeas ; 
 
 how issued ; 
 
 return 
 thereto. 
 
 Remand, 
 
 Order to take 
 
 bill 
 
 pro confesso. 
 
 Practice 
 under the 
 General 
 Orders 
 preferable. 
 
 Time within 
 which order 
 to take bill 
 pro conftsso 
 must be 
 obtained. 
 
 on the iloti'iulant ; ' aiul the order will be luade, if the Court ia 
 satisfied that justice cannot be done to the plaintiff without an 
 answer to the interroo^atories from the defendant himself; and the 
 order will not })reju(lice the j)laintitf's rights to take the bill pro 
 confissor 
 
 If the plaintifi" determines to proceed to take the bill pro con- 
 fesso against the defendant, he must obtain an order for a writ of 
 habeas corpus, directed to the keeper of the prison, commanding 
 him to bring the defendant to the bar of the Court. This order 
 is made on petition or motion as of course, su))ported by tlie order 
 handing over or remanding the defendant back to the prison, and 
 the keepei''s certificate of his being in custody there.^ The appli- 
 cation for the writ may be made as soon as the defendant is or- 
 dered to be committed or remanded back to prison ; * but there 
 must be at least twenty-eight days betw^een the day on which the 
 defendant was committed or remanded back, and the return of the 
 writ.^ The Writ will be sealed at the Record and Writ Clerks' 
 Office, on ])roduction of the order.'' On the return of the writ, the 
 defendant is brought to the bar of the Court ; and if he persists in 
 his contempt, he will be remanded to prison, to remain there till 
 he answer the bill and clear his contempt ; and the bill will be 
 ordered to be taken joro confesso against him at the hearing of the 
 cause.'' 
 
 It should, however, be mentioned here, that although the prac- 
 tice above stated may still be adopted, the General Orders have 
 given the plaintiff an easier mode of obtaining an order to have 
 the bill taken pro confesso, in the event of the attachment being 
 executed upon the defendant.^ 
 
 If the plaintiff resorts to the practice above stated, no time 
 should be lost in these proceedings : for, unless the plaintiffj 
 within six weeks after the expiration of two calendar months 
 from the time the defendant was lodged or detained in prison, 
 under the attachment, obtain the order that the defendant remain 
 
 1 Aveling v Martin, 17 .lur. 271, L.JJ., 
 overruling Maitland v. llndger, 14 Sim. 
 92; 8 .lur. 371. For form of notice of 
 motion, see Vol. III. 
 
 2 11 Geo. IV. & 1 Will. IV. c. .36. § 15, 
 r. 12; Bniitliwaile's I'r. 276; Miiitland v. 
 Rodger, tibi sup.; Potts v. Wliitniore, 8 
 Beav. .317. If the (iefendant does not ap- 
 pear on the motion, an affidavit of service 
 of the notice must be produced in Court; 
 for form of affi^lavit, see Vol. HI. 
 
 8 For forms of order, see Seton, 1263, 
 Nos. 11 and 12; and for forms of petition 
 and motion, see Vol. III. 
 
 * Simpson v. Barton, 13 L. J. N. S. Ch. 
 79, M. K. 
 
 6 11 Geo. IV. & 1 Will. IV. c. 36, § 15, 
 r. 2. 
 
 G Hraithwaite's Pr. 224, 225._ For forms 
 of writ, indorsement, and prwcipe, see Vol. 
 III.; and see (intc, p 4i»l. 
 
 7 For forms of order, see Seton, 1266, 
 Nos. 5 and 6 Where, Irom pressure of bus- 
 iness or otlier cause, the m;itter is not 
 heard, the Court may direct a new writ of 
 hnbtds corpus to issue, without payment of 
 any fee; see Ord. XXX. 3. The direction, 
 in such case, is signed by the Registrar, 
 and indorsed on tlie order directing the 
 former writ to issue. Hraithwaite's Pr. 
 224. 
 
 « Ord. XXII. 1. As to taking bills pro 
 conftsso, see post, Chap. XI.
 
 AGAINST UNPRITTLEGED DEFENDANTS. 493 
 
 in custody until answer or further order, or that the bill be taken Ch. X. § i. 
 
 pro confesso, the defendant is entitled (upon application to the "^ y -' 
 
 Court) to be discharged, without payment of any costs : unless 
 the Court see good cause to detain him in custody,^ Where, how- 
 ever, the plaintiff can show that an answer is necessary, the Court 
 may refuse to discharge the defendant, although the plaintiff has 
 neglected to obtain an order to detain him in custody.^ 
 
 If the defendant, upon the return being made to the attachment when 
 by the sheriff; be in jail under sentence for a misdemeanor, he J^linimL-'* 
 may be brought up before the Court by habeas corjnis in the man- demeanor. 
 ner before explained ; ^ and thereupon he will be turned over pro 
 forma to Whitecross Street Prison : though actually carried back 
 to the prison from whence he came. Thereupon, a second wiit 
 of habeas corpus issues, similar in all respects to that before men- 
 tioned, except in being directed to the jailer or keeper of the 
 prison to which the defendant has been carried back. Upon the 
 return thereof, the defendant is brought into Court, and remanded 
 to the prison from whence he came, without being turned over 
 again to Whitecross Street Prison ; and the bill may be taken 
 pro confesso, in the same manner in all respects as if the defendant 
 had been all along in the custody of the keeper of the latter prison.* 
 
 Should it turn out that the defendant is under sentence for ^hen under 
 felony, there is apparently no power in the- Court to order his ^ent^^^'^e for 
 removal until the expiration of the sentence ; ^ and consequently, 
 in such a case, it seems that, previously to the General Order 
 above referred to,^ no order to take the bill pro confesso could 
 have been obtained, nor could any answer have been enforced, as 
 against a defendant in such a position. 
 
 There seems to have been some difference of opinion among Rjghtofde- 
 tho Judges, whether the 13th rule of the statute confers upon the Jj^J^^^g^^.''^ 
 defendant so absolute a right to his discharge that it cannot be 
 waived by any act done by him, either previously or subsequent 
 to the expiration of the period specified. Sir Lancelot Shadwell 
 V. C. decided,'' that an answer put in by a prisoner, when entitled 
 to his discharge, inasmuch as it prevents the plaintiff from having 
 the bill taken j^ro confesso, deprives the defendant of the right 
 conferred upon him by the statute, of being discharged without 
 payment of the costs of the contempt; and Sir James Wigram 
 V. C." was of opinion, that an application for time to answer, 
 made by the defendant prior to being entitled to his discharge, 
 
 > 11 Ge.). IV. & 1 Will. IV. c. 36, § 15, r. 4; 5 & 6 Vic. c. 22, § 7; 25 & 26 Vic. 
 
 r. 13. I he two months and six weekn run c. 104, § 2; IJraitlnvaite's I'r. 2b3. 
 
 in VHcalion. Simmons v. Wood, 2 Hare, <» Hokith iu Kirkpatrick, 3 Ve.s. 573. 
 
 644. 8 Onl. XXII. 1. 
 
 2 I'oiti, V. Whitmore, 8 Bcav. 317. ' Williams v. Newton, 11 Sim. 46. 
 
 2 /In^e, p. 4Sil. * Woodward V. Concbeer, 2 Hare, 606; 
 
 « 11 G.o. IV. & 1 Will. IV. c. 36, § 15, 8 Jur. 042.
 
 494 
 
 COMPELLING ANSWER. — TROCEEDINGS IN DEFAULT. 
 
 Oh. X.§ 1. 
 
 On sheriff's 
 return, HOH est 
 invtntus : 
 
 writ of 
 sequestration 
 may be 
 obtained 
 immediately; 
 
 or Sergeant- 
 at-Arms. 
 
 Order to take 
 bill pru 
 conjetso. 
 
 ami the acceptance of the time thcreuj)on given, prevented the 
 operation of the statute, and phiced the defendant in the situation 
 he would have been in liad its provisions never been enacted ; 
 whereas, according to Lord Langdale M. K.,^ a defendant obtain- 
 ing leave to answer, subsequent to the period when he becomes 
 entitled to his discharge, has still a right to the benefit of the 
 statute : which right he has neither power nor capacity to waive. 
 
 Thirdly : If the sheriff is unable to attach the defendant, and 
 return accordingly, there are different modes whereby, under 
 different circumstances, the plaintiff may proceed to take the bill 
 pro confesso. 
 
 If an affidavit can be made, that due diligence was used to 
 ascertain where such defendant wfts at the time of issuing such 
 writ, and in endeavoring to apprehend him under the same, and 
 that the person suing forth such writ verily believed, at the time 
 of suing forth the same, that such defendant was in the county 
 into which such writ was issued, then, upon ex parte motion, sup- 
 ported by such an affidavit, and the sheriff's return, the plaintiff 
 is entitled to a writ of sequestration.'^ But the affidavit must be 
 precisely in the words, or at least go to the full extent, of the 
 language just mentioned ; and hence it is often impossible, from 
 the conduct of the defendant, to frame an affidavit in the proper 
 terms.^ 
 
 Where such an affidavit can be made, another course for the 
 plaintiff to adopt is, upon the sheriff returning non est inventus^ 
 to move, as of course, upon such affidavit, for the Sergeant-at-Arms 
 to apprehend the defendant.* If the Sergeant-at-Arms arrest 
 the defendant, he must bring him to the bar of the Court within 
 ten days thereafter. If he find him in prison, he lodges the order 
 and warrant with the keeper as a detainer, and returns accord- 
 ingly, then the same course, with respect to bringing the defendant 
 to the bar of the Court, must be pursued, as if the defendant had 
 been apprehended by the messenger, and within the same time.^ 
 On the other hand, if the Sergeant-at-Arms return that the defend- 
 ant cannot be found, so as to be apprehended, then, upon motion 
 of course, supported by production of such return, the plaintiff is 
 entitled to an order for a writ of sequestration.® 
 
 In either of the above cases, that is, whether the writ of seques- 
 
 1 Havnes v. Ball, 4 Be:iv. 101. 
 
 2 Ord. XII. 6; Uraitliwuite's Pr. 287; 
 see Seton, 1260, is'o. 1 ; and lor forms of 
 affidavit, motion paper, writ of sequestra- 
 tion, -AwA irracipe, see V'ol. III. 
 
 8 Storer v. Great Western Kailway Com- 
 pany, 1 Y. & C. C. C. IbO. 
 
 * 11 Geo. IV. & 1 Will. IV. c. 36, § 15, 
 r. 1; braitliwaite's I'r. 2t'6; but see Se- 
 ton, 12C0, No. 2. The order must be de- 
 
 livered to the Sergeant, or his deputy, by 
 the Registrar. Ord. XXX. 2. For form of 
 niotiiin papei', see Vol. III. 
 
 '' btoreri). Great Western Railway Com- 
 panv, 1 Y. & C. C. C. 180; Braithwaite's 
 Pr. 2b6 ; nnte., pp. 491, 492. 
 
 6 Braitliwaite's Pr. 287. The return is 
 filed at the Report Office. For form of 
 order, see 8etori, 1261, No. 4; and for form 
 of motion paper, see Vol. III.
 
 AGAINST UNPRIVILEGED DEFENDANTS. 495 
 
 tration is ordered upon motion, supported by the affidavit men- Cn. X. § i. 
 tioned above, or upon a return of non est invetitus by the Sergeant- ' > ' 
 at-Arms, it would seem that the plaintiff may at once obtain an 
 order to take the bill jjro confesso : which is granted on motion of 
 course. 
 
 According to the old practice of the Court, independent of Execution of 
 recent Statutes and Orders, an order to have the bill taken pro for'\van"ot°'j 
 confesso was of course, upon the issuing of the writ of sequestra- answer, con- 
 tion, even though it was not executed.^ In consequence of this 
 rule, it does not seem that it ever has been the ordinary practice 
 to execute writs of sequestration upon mesne process ; and an 
 opinion appears at one time to have prevailed, that such an exe- 
 cution was irregular. The opinion seems to have arisen, in con- 
 sequence of what was said by Sir Thomas Clarke M. R.,'^ in 
 Heather v. Waterman,^ and Vaughan v. Williams,'^ where he 
 expressed an opinion, that when a bill had been taken pro confesso, 
 on a sequestration for want of an answer, the execution of the 
 sequestration was unnecessary and improper. These cases appear 
 to have been cited by Mr. Dickens, the Registrar, in the notes 
 handed up by him to the Lords Commissioners of the Great Seal, 
 in Itovoley v. Ridley^ in support of the distinction taken by him 
 between sequestration in mesne process and for a duty, namely, 
 that a sequestration in mes7ie process ought not to be executed ; 
 but upon reference to those cases, it appears that they go no 
 further than to show that, when the plaintiff intends to proceed to 
 have the bill taken pro confesso against the defendant, the execu- 
 tion of the sequestration is unnecessary, and therefore improper : 
 because the object of executing the sequestration being merely to 
 compel an answer from the defendant, the same purpose is effected 
 by taking the bill pro confesso against him (by which process the 
 plaintiff (obtains the same decree that he would have been entitled 
 to, had the defendant put in his answer and admitted the whole 
 case made by the bill) ; and this being accomplished, the process 
 drops as a matter of course, and the sequestrators become account- 
 able, not to the plaintiff or to the Court, but to the defendant.'^ 
 
 In fact, the practice ai)nears to be that a plaintiff, upon obtain- In whatcaseu 
 . . 1 ,■ 1 ^ /• . i- executed. 
 
 mg a sequestration against a defendant for want ot an answer, 
 
 1 Wyatt's P. H. 352; Ilarr. by Ncwl. that he could see no foundation, either in 
 j4(j_ ' tlie reason of the tiling, or in the iiistoryof 
 
 2 Mionrintfd " Scweil," in I iJick. 335. the Court, for supposin;; Ihiit a sequestra- 
 
 3 1 Dick. 335. ''"'• to compel an appearance or answer 
 
 * lb. 354. siiould not be executed. See nNo Goid- 
 
 * 2 l>ick. 622. It appears from the smith v. (joid.sniitii, 6 Hare, 120, 127; 10 
 Btiiteincni of thin case bv Lord Kedcdale, Jur. 501. 
 
 then the Sdlicit'ir-tJencrai, in SimmotKlsv. <> Sec (Jold.smilh v. (Jobisinitli, 5 llarc, 
 
 l^id Kinnaird, 4 Vcs. 735, 73ti, that the 123; 10 .Jur. 5ol; Ironi whicli case it a(>- 
 
 casc i« errnn'-on-ly reported; and in the pears that sequestration will be executed 
 
 note of the ^ame case, in 3 Swaii'-t. 30G, n. in u proper case. 
 (6), Lord Tliurlow is reported to have said
 
 496 
 
 COMPELLING ANSWER. — rROCEEDINGS IN DEFAULT. 
 
 Cii. X. § 1. 
 
 On return no« 
 est iiirentuit, 
 bill should 
 be taken 
 pro con/'esso, 
 under the 
 General 
 Order. 
 
 lias an option whether he will proceed to take the h'lW 2))'o confesso^ 
 or to eomjiol an answer. If the circumstances of the case are such 
 tliat justit-e can be obtained by taking the bill pro co7i/t'sso, ho 
 ought not to cause the sequestration to be executed ; l)ut it" his 
 case is such that an answer from the defendant is necessary, he 
 may. It should be observed, however, that tlie cases in which a 
 plaintitt" can have occasion to compel an answer from a defendant, 
 instead of taking the bill jjro confesso against him, are compara- 
 tively few, and arc in general confined to bills of discovery, where 
 the answer is wanted to be read at Law, or to obtain some admis- 
 sion from him on which to found some application to the Court ; 
 and that, unless in such cases, the proper course to adopt is that 
 of taking the bill pro cofifesso. For these reasons, the writ 
 of sequestration is very rarely executed, upon mesne process / and 
 it will be more convenient to treat of the practice upon the execu- 
 tion of a writ of sequestration hereafter, in the section concerning 
 the proceedings to enforce decrees.-^ 
 - If the plaintiff desires to take the bill pro confesso ag;unst a 
 defendant who has not been arrested on the attachment, or by the 
 Sergeant-at-Arms, his better course is to proceed as against an 
 absconding defendant, under the General Order on the subject of 
 taking bills pro confesso : ^ which will be considered in the next 
 chapter.'^ 
 
 Section II. — Against Particular Defendants. 
 
 Against 
 
 particular 
 
 defendants. 
 
 Peers and 
 members of 
 parliament: 
 when l)ill 
 for relief; 
 
 Sequestration 
 nisi. 
 
 Sequestration 
 absolute. 
 
 The course which has been stated, in the preceding section, is 
 applicable to the case of an ordinary defendant, not possessed of 
 any particular privilege, and not subject to any disability. It re- 
 mains to consider the practice to be adopted, for the purpose of 
 compelling an answer from defendants of particular descriptions. 
 
 First : If the defendant is privileged from arrest, either by right 
 of peerage, or as a member of parliament, and the bill is for relief: 
 as soon as the time for answering has expired, the plaintiff^ instead 
 of issuing an attachment, may move, as of course, for a sequestra- 
 tion nisi, on an affidavit of the delivery of the interrogatoiies, and 
 the Record and Writ Clerks' certificate that no answer thereto has 
 been put in.'* The order must be served personally upon the de- 
 fendant ; and at the expiration of the time limited in such order 
 nisi for showing cause,*" the plaintiff" may move, as of course, to 
 make the order absolute, upon proof by affidavit of service of the 
 
 1 Pott, Chap. XXVI. § 7. 
 
 2 Ord.XXlI. 
 
 8 Post, p. 518 et seq. 
 
 * For form of order, see Seton, 1261, 
 
 No. 5; and for forms of motion paper and 
 affidavit, see Vol. ill. 
 
 5 As to showing cause, see Magan v. 
 Magan, lb Jur. 5b7, V. C. K.
 
 AGAINST PARTICULAR DEFENDANTS. 
 
 497 
 
 order nisi, and by the Record and Writ Clerk's certificate that no 
 answer has been filed, and the Registrar's certificate that no cause 
 has been shown.^ 
 
 Upon the order for the sequestration being made absolute, the 
 plaintiff' is entitled ^ to have the bill taken j^ro confesso, as in the 
 case of unprivileged parties against whom sequestration has issued.^ 
 11^ however, the bill is for discovery,^ it is not necessary for the 
 plaintiff to obtain a sequestration ; but after the time for answer- 
 ing has expired, and an appearance has been entered by the defend- 
 ant, or by the plaintiff on his default,^ the plaintiff may apply at 
 once to have the bill taken pro confesso,^ and thereupon the Court 
 is empowered to make an order, that the bill be so taken, unless 
 the defendant shall, within eight days after being served with the 
 order, show good cause to the contrary^ The order is obtained 
 on ex parte motion, supported by an affidavit of the delivery of 
 the interrogatories, and the Record and Writ Clerk's certificate of 
 defiiult ; * and the order will be confirmed, in like manner as an 
 order for a sequestration is made absolute.^ When such order htts 
 been pronounced, the bill, or an examined copy thereof, may be 
 taken and read in any Court of Law or Equity as evidence of the 
 same facts, and on behalf of the same parties, as could an answer 
 admitting the contents of the bill.^° 
 
 Where the Attorney-General, being a defendant to a suit, fails 
 to answer within a reasonable time, an order may be obtained that 
 he put in his answer within a week after service thereof; or in de- 
 fault, that, as against him, the bill may be taken j!9ro confessoP- 
 
 In the case of a corporation aggregate, not answering within the 
 time limited, the plaintifi' may issue the same writs of distringas 
 successively, and in the same manner, as it is before stated may be 
 done to compel appearance ; ^^ and should the corporation stand out 
 
 1 Hraithwaite's I'r. 297; see M-.itter of 
 Vandfrbilt, 4 John. Oh. 68. For form of 
 order, nee Sctoii, 1261, No. 6; iind for 
 forms of motion paper and affidnvit, see 
 Vol. HI. 
 
 2 Joiios V. Davis, 17 Ves. 368; Logun t; 
 Grant, 1 .Mad. 62«. 
 
 3 See nnh', pp. 494, 495 ; and see Braith- 
 waite's I'r. 297. 
 
 ♦ .Inncs )' I) ivi.s, ubi xup. ; and see post, 
 Chap. X.X.XIV. § 2, liilU of I)h,:<,x:,ry. 
 , * Kiihf-r uiKlor II (ico. IV. & I Will. IV. 
 c. 36, § 12, or Ord. X. 4-7, it would seem. 
 Hraithwaite'i* I'r. 2U«. 
 
 9 .Spi- (J'Urinn 0. Manders, 2 Irish ICq. 
 39; WiKon r. Stniwe, Craw. & Dix, 62; 
 Stifford r. Burn, 4 I'fiiKe, r.OO. 
 
 If a defendant, after u|)|ieariiip, will not 
 answer, the hill will he tu'^en fim anifcsso. 
 <Jaines v. Usher. 1 .lohn. Oh. 8 And 
 where the hill is lor relief only, and states 
 outKeient ^riuiid, th<^ process lor contempt 
 to compi-l an answer i8 not necessary. 
 VOL. I. 32 
 
 Cn. X. §2. 
 
 Bill may then 
 be taken 
 pro cmij'esso. 
 
 When bill for 
 discovery, it 
 may, in 
 default of 
 answer, be 
 taken pi'O 
 Cimfesso, 
 without a se- 
 questration ; 
 
 and be read 
 in evidence, 
 as an answer 
 admitting 
 contents of 
 bill. 
 
 Attorney- 
 General. 
 
 Corporations 
 aggregate. 
 
 Ibid. In New .lersej', a decree pro con- 
 J'mso may be taken at any time, after the 
 time limited for the detenilant to jdead, 
 answer, or demurrer, has expired. It may 
 be taken witiiout notice, and of course, 
 unless it appear that some ])reju(lice will 
 therein' accrue to the adverse party. Oak- 
 ley V. O'Neill, 1 Green Ch 287; see Nes- 
 bic V. St. Patrick's Church. 1 Stockt. (N. 
 J.) 76. 
 
 7 1 1 Gno. IV. & 1 Will. IV. c. 36, § 13. 
 
 *< For forms of motion paper and affi- 
 davit, see Vol. III. 
 
 '•* Ante, pp. 496, 497. 
 
 10 11 Geo. IV. & 1 Will. IV. c. 36. § 14. 
 
 11 Groom V. The Attorney-General, 9 
 Sim. 325. Now, however, it is unusual to 
 ask for any answer from tliij Aliorney- 
 General. For form of motion Jiuper, see 
 Vol. III. 
 
 '■i See nnte, p. 477 ; McKim v. Odom, 3 
 Bland, 407, 4'26.
 
 498 
 
 COMPELLING ANSWER. 
 
 rROCEEDINGS IN DEFAULT. 
 
 (^11. X.5 2. 
 
 Iiitant,<>, mill 
 poisons of 
 uiisouiui 
 uiiiiil not so 
 found. 
 
 Infants not 
 usually 
 rvquircd to 
 answer. 
 
 Married 
 women. 
 
 Wife not 
 bound to join 
 in husband'3 
 
 proooss till (hf oriU-r iibsoliito tor soqui'stration issue, tlion tlic 
 pl:iintilK u|uiii obtaining sncli onlor, may move, as of course, to 
 ha\e the bill taken pro confesso.^ 
 
 Upon (letault made in answering by an inianl delendant, or l)y 
 a defendant of weak or unsound mind not so found by iiuiuisition, 
 the Court will, upon the 8i)ecial motion of the })laintitf, order a' 
 solicitor to be assigned guardian, by wliom such defendant may 
 answer the bill and defend the suit.'^ The practice as to this mo- 
 tion, and the aiii(hTvit required in support of it, are simihir to tlie 
 practice, betbre explained, in the case of default in appearance.' 
 Even when the infant is a married woman, a guardian must be 
 apj)ointed to ])ut in an answer on lier behalf.* As we have seen, 
 howevijr, no answer should now be required from an infant defend- 
 ant. 
 
 In general, when a husband and wife are made defendants to a 
 cause, and no s})ecial order has been made with respect to the 
 phiintiif 's right to demand an answer, or aiFecting the liabilities of 
 either husband or wife for not duly answering, the plaintiff is en- 
 titled to have their joint answer, within the ordinary period after 
 service of the interrogatories ; and in default of such joint answer 
 being put in, the husband alone incurs all the ordinary conse- 
 quences of contempt.^ Their respective rights and liabilities are, 
 however, often varied upon the application, either of the ])laintiff, 
 or of the husband, or the wife ; and the circumstances under which 
 such an application may be made to the Court, and the course of 
 practice in relation thereto, have been fully explained in a former 
 part of this treatise.® 
 
 When a hus'band is willing to answer jointly, it must not be 
 supposed that the wife is bound to acquiesce in any answer the 
 husband may please to put in ; nor is the husband justified in 
 
 1 Braitlnvaite'sPr. 297. Angell & Ames, 
 Corp. § 667 et seq. For form of order, 
 seeSeton, 1266, No. 4; and for form of 
 motion paper, see Vol III. 
 
 2 Ord. VII. 3. 
 
 8 j4n'e, p. 475. Where the infant had 
 appeared, service of the notice of motion 
 on the solicitor \\ ho had etiteretl the ap- 
 
 Eearance was held suflicient. (Jookson v. 
 ,ee. 15 .Sim. .302. In B<ntlcyr. Robinson, 
 9 Haie Ap. 70, a guardian was app' inted 
 for an infant not in ilefault, on the a[ipli- 
 cation of the filaintiff; no answer liemg 
 required. Where the infant has already 
 appeared by a guardian ad lilem, the 
 puardian may be |)niceeded against in the 
 .same mai.ner as other persons, to compel 
 an answer. 1 HoflF. Ch. I'r. 182. 
 
 * Cclman r. Nortlicote, 2 Hare, 147. 
 and ca-es cited, ib. 148 n. ; 7 ,Iur. .528; and 
 see ante, pp. 163, lf3. 
 
 6 Gee V. Cottle, 3 M. & C. 180; Steele 
 
 V. Plomer, 2 Phil. 782, n. (a); 1 M'N. & 
 G. 83; lietter reported 13 .Jnr. 177; see 
 Metiers. Metier, 4 C. E. Green (N J.), 
 457; Uird t;. Davis, 1 McCarter (N. J.), 477. 
 The plaintiff may stipulate to receive the 
 joint answer sworn to by the husband 
 alone. Leavitt v. Cruger, 1 Paige, 422. 
 
 « Ante, pp. IbO, 181; see Collard V. 
 Smith, 2 Bea-Jt-y (N. J.), 45. If the wife 
 be absent, the husb-md maj' obtain time 
 to issue a commission to obtain the wife s 
 oath to the answer, and if she refu-^e to 
 answ.r, the bill mav be taken pi-o con- 
 ftfsso against her. Leavitt v. Cruger, 1 
 Paige, 422; Ferguson v Smith, 2 .John. 
 Ch. 13i*. Hut in New Jersey, if the 
 husband be served, and the wife be out of 
 the State, it is necessary to have an order 
 of publication again>-t lier, unless the hus- 
 ban<l appear for her. Halst. Dig. 170- 
 174; Chancery Rule, 23.
 
 AGAINST PARTICULAR DEFENDANTS. 
 
 499 
 
 usino- menaces, to constrain her consent to an answer contrary to 
 her belief: for such conduct, a husband is punishable as for a con- 
 tempt, and the wife, thus conscientiously dissenting, may, upon 
 application to the Court, obtain an order to answer separately.^ 
 
 The separate answer of a married woman cannot (except where 
 her husband is a plaintift") - be filed without a previous order for 
 that purpose ; ^ nor can she be viewed as a substantial party to the 
 suit, until such order be obtained ; and she is entitled to compute 
 the full time for answering from tlie date of the order allowing her 
 to answer separately, without regard to any orders for time previ- 
 ously granted to her husband.* 
 
 "Where an order for a married woman to answer separately has 
 been obtained, the plaintiff may proceed to compel an answer by 
 attachment ; and this right would seem to exist in the plaintiff, 
 whatever be the object of the suit, whether relating to the separate 
 estate of the wife or not.^ The attachment will not, however, be 
 issued without an order : which may be obtained on an ex parte 
 motion,^ where the order to answer separately has been obtahied 
 by the married woman, but where it has been obtained by the 
 plaintiff, or the husband, notice of the motion should, it seems, be 
 given to her." 
 
 Where the husband is positively unable to conform to the ordi- 
 nary ])ractice of putting in a joint answer, an order will be granted, 
 ujjon his ai)iilication, for him to answer separately, and he is then 
 exonerated from all hability for his wife's default;^ but the motion 
 for this i)urpose should be made before he is in contempt, as the 
 C<nirt will not, after he has made default, give him an indulgence 
 to the prejudice of the plaintiff's interests.^ To support such an 
 application, the husband must show, by his oAvn affidavit, that his 
 wife lives aj)ai-t, and that he has no influence over her, or otherwise 
 prove his inability to answer for her.^° Notice of the motion 
 should be given to the ]»laintitF, and also to the wife." It seems, 
 too, that the order ought to direct the wile to answer separately, 
 
 Ch. X. § '2. 
 
 Separate- 
 answer of 
 wife cannot 
 be tiled with- 
 out order. 
 
 Where order 
 to answer 
 separately 
 has been 
 obtained, her 
 answer may 
 be compelled. 
 
 Husband 
 uiuible to put 
 in a Joint 
 answer, 
 
 may obtain 
 order for him 
 to answer 
 separately ; 
 
 h'W 
 obtained. 
 
 1 hxjmrte Ilalsam, 2 Atk. 50; ntitr, p. 
 Ibl. 
 
 2 Ante, p. 1R2. 
 
 •' G:irey v. Wh-tlingliam, IS. & S. 1G3; 
 but no KUili onler is necessary wiieni-vcr 
 the wife is to be considered as a fane 
 SuU ; utile, p. 17W. 
 
 * Jackson V. Haworth, 1 S. & S. 101, 
 ante, p. 1>"3. 
 
 '' Uubois V Hole. 2 Vern. 618; and sfe 
 Ollwiiy r Winf,', 12 Sim. 90; Trnvcrs v. 
 Buckly, I Ves. S. .3^4, 3h«; 1 Dick. IS.-*; 
 Kipp r Manila. 2 island, 2(>. 
 
 * lllicknes^e r. Acton, 15 .lur. 1052, V. 
 C. T. ; Home i'. I'alrick. HO Ikav. 405; 8 
 Jur. N S aoi; Uiih v. Witliey, "J .lur. .N'. 
 S. 5'.i4, v. (;. ^. I'or tbniiH ot motion pa- 
 per and ailldavit, see Vol. IH. 
 
 ^ Graham v. Fitch, 2 I)e (J. c^ S. 240; 
 12 .lur. 833; contra, Taylur v. Taylor, 12 
 lieav. 271; and see liushell v IJusheli, 1 
 S. & S. 104; and cases cited 12 Heav. 
 271, n. For form of order, see Sel on, 1250, 
 No. 7; anil for forms ol notice of motitm 
 and athdavils, see Vol. 111. 
 
 t* Gar-y v Wiiitliiifjliam, 1 S & S. 103; 
 Braiihwaite's I'r. 105; see Leavilt v. Cru- 
 ger, 1 I'aige, 422. 
 
 '■> Gee V. Cotlle, 3 .M. & C. 180, 182; 
 ante, p. 4'.tH. For form of atHdiivit, see 
 Vol. 111. 
 
 i" Hiirrv V. Cane, 3 Mad. 472; ante, j)p. 
 177, 457." 
 
 n huiiyan v Mortimer, Mad. 278; 
 Garey i'. U liittiiiKliam, iihi sup. For form 
 ofnoticu of motion, stia Vol. Hi.
 
 500 
 
 COMPELLING ANSWER. TUOCEEDINGS IN DEFAULT. 
 
 (^11. X. 5 -2. 
 
 llufhiiwd 
 slioultl ol)tain 
 onK'r, lielore 
 (ilinj; liis sf[)- 
 arato answer. 
 
 Where 
 husband a 
 lunatir, 
 plaintitf may 
 obtain order 
 for wife to 
 answer 
 separately. 
 
 Defendant 
 unable to 
 answer from 
 poverty : 
 
 inquiry 
 whether he 
 
 if true, 
 counsel and 
 solicitor are 
 assi{pied him. 
 
 ;is wi'll ;is (hi' liusbiiiul : otluM'wisc tlu' |il;iiiitllT iimy have to ii})ply 
 :i>;;iin, bi'tori- lir can l)i-in!i; tlie will' bctbre the Court. 
 
 In all casi's whciv the hnsliand wishes to answer se})aratcly, an 
 onU'r to that oft'ect ought in stiit-tness to be obtained, before his 
 answer is put in. There are cases, however, where he lias answered 
 separately without order, and then a])i)lied to the Court that he 
 might not be liable to process, on account of his wife's default in 
 answering ; and the aj>plication being made before any notice of 
 the irregularity in iiling the answer, the Court has made the order.^ 
 But such a course is irregular, and, ujion motion of the plaintiiF, 
 the separate answer of the husband will be ordered to be taken 
 off the file."'^ 
 
 If the impossibility of obtaining a joint answer arises, not from 
 the refusal of the wife, but from the lunacy of the husband, an 
 order for tin; wife to answer separately will be made, u])on a like 
 application of the plaintitt? In such a case, however, as well as in 
 other cases where it apjjears to the Court that the defendant is a 
 person of weak or unsound mind, not found such by inquisition, 
 the Court may, upon the ai^plication of the plaintiff, appoint one 
 of the solicitors of the Court guardian of the defendant, by whom 
 he may appear to and answ^er the bill : ^ but, in such a case, no 
 answer should be required. 
 
 It now remains to be considered in what manner the Statutes 
 and General Orders protect a defendant unable, from ])overty, to 
 put in an answer; and prevent a party, under such circumstances, 
 being uselessly detained in custody. 
 
 If a defendant is brought up in custody for want of his answer,^ 
 and makes oath in Court,^ that he is unable, by reason of j)overty, 
 to emjjloy a solicitor to put in his answer, the Court, if not 
 satisfied of the truth of that allegation, may direct an inquiry as 
 to the truth thereof; '' and may appoint a solicitor to conduct such 
 inquiry on the behalf of such defendant ; and if it is ascertained, 
 by means of such inquiry, or if the Court is satisfied without such 
 inquiry,** that such defendant is unable, by reason of poveity, to 
 employ a solicitor to put in his answer, the Court may assign a 
 solicitor and counsel for such defendant, to enable him to put in 
 
 1 Barry v. Cane, ubi sup. ; Pavie v. 
 A'Court, 1 Dick. 13; ante, p. 180. 
 
 2 (jee r. Cottle, ubi sup. ; and see 
 Nichols V. Ward, 2 M'N. & G. 140; atite, 
 p. 177. For tbrm of notice of motion, see 
 Vol. III. 
 
 3 Kstcourt V. Ewington, 9 Sim. 2-52; 2 
 Jur. 414. 
 
 * Ord. VII. 3; ante, pp. 176, 475. A le- 
 male defendant, uiiin:irried, above sixty 
 ytms ffoi/e, who bad been deaf and dumb 
 from her infancy, was admitted to appear 
 and defend by guardian. JMarkle v. Mar- 
 
 kle, 4.John. Ch. 168. Where a lunatic has 
 appeared by committee, the practice to 
 compel an answer b}' coiiiuiittee is the 
 same as in case of other persons. 1 IIofF. 
 Ch. I'r. 182. 
 
 ^ Ante, pp. 490, 491. 
 
 <* The oath is administered by the Regis- 
 trar; .see 11 Geo. IV. & 1 Will. IV. c. 36, 
 § 15, r. 6. 
 
 ■^ Pending tjie inquiry, it seems that 
 time does not run against the plaintiff. 
 Potts V. Whitmore, 8 Beav 317, 319. 
 
 8 Davies v. Nixon, 11 W. K. 62, V.C. K.
 
 AGAINST PARTICULAR DEFENDANTS. 
 
 501 
 
 his answer.^ It would seem, that the apphcation must be made 
 by the defendant, and not by the plaintiff.'^ 
 
 When an inquhy is thus directed, an order to that eiFect is 
 drawn up ; ' a certified copy of it is left at the chambers of the 
 Judofe to whose Court the cause is attached ; and a summons to 
 proceed on the inquiry is thei-eupon taken out,* and served on 
 the plaintiff's solicitor. On the return of the summons, an affi- 
 davit by the defendant of his poverty, or other evidence thereof, 
 is adduced on his behalf;* the plaiutiflT's counter evidence, if 
 any, is heard; and the Chief Clerk makes his certificate of the 
 result of the inquiry ; which is afterwards completed in the ordi- 
 nary way.® 
 
 If the certificate is in favor of the defendant, he may ap])ly, by 
 ex jyarte motion, that a counsel and solicitor may be assigned 
 liim to put in his answer, and defend the suit, in forma jiciuperis.'' 
 The counsel and solicitor to the Suitors' Fund are usually assigned 
 him. The order may also direct a habeas corpus to issue, to bring 
 up the defendant for the purpose of taking the bill pro confesso, 
 in the event of the answer not being put in the mean time.* 
 When the answer has been put in, the defendant may apply, 
 on motion, supported by the Record and Writ Clerk's certificate 
 of the answer being filed, that he may be discharged out of 
 custody as to his contempt in not answering, and that the 
 plaintiff's costs of such contemjjt may be paid out of the Suitors' 
 Fund.« 
 
 Wliere, however, the defendant, though the certificate is in his 
 favor, neglects to apply for the assignment of counsel and a 
 Bolicitor,^" or where the Chief Clerk certifies that the defendant 
 is not too poor to put in his answer, or where, by reason of the 
 obstinacy of the defendant in withholding information as to his 
 means, tlic iiujuiry has faileil," tbc ))laintiff may move ex parte^^ 
 
 Cii. X. § 2. 
 
 Plaintiff can- 
 not apply for 
 inquiry. 
 
 Inquiry: how 
 prosecuted. 
 
 Inquiry 
 answered : 
 
 Defendant's 
 proceedings ; 
 
 Plaintiff's 
 proceedings. 
 
 1 Ord. XII. 4; Hnd see 11 Geo. IV & 1 
 Will. IV. c. m, § I'j, r. G; see also 2-3 & 24 
 Vic. c. 140, § 4. wliirh is in nearly the same 
 words as C)rd. XII. 4. 
 
 2 See Wa'kin >v I'arker, 1 M.&C.370; 
 Garrod v. Holden, 4 Heav. 245. These 
 ca.-fs wore, however, d'-clilcd on the Gth 
 Rule of n (Jeo. IV. & 1 Will. c. 36, § 15. 
 In hiiyly v. Bayly, 11 Heav 250, it was 
 held, thiit the 7ili Itule ai)y)lied to a de- 
 fenflant ilefendint^ n a reiireseniative char- 
 acter, after a succes'*ful inquiry under the 
 Cth. 
 
 2 For frirm of order, see Seton, 1273, No. 
 12; and (or form of oder, without inquiry, 
 ih. 1272, No. 11. 
 
 * For Corni of summons,, see Vol. III. 
 By Orrl. XII. 6, notice in writing; of tlie 
 orfier, and ofevcrv summons to proceed 
 thereoti, must he serveJ on the solicitor to 
 the Suitors' Fund. 
 
 5 See Williams v. Parkinson, 5 Sim. 74, 
 75. 
 
 8 See post Chap. XXIX., Proceedings 
 in (he Jtu/(/e's Chambers. The solicitor to 
 the Suitors' Fund u^uiUly conducts the in- 
 quiry on helialldf tlie dcfendsint. 
 
 7 I'or form of mtition paper, see Vol. III. 
 
 8 Welford V. Diiniell, 9 Sim. G52 
 
 " For form of order, see Seton, 1273, No, 
 15; and for form of motion paper, see Vol. 
 Ill, Ih- Ord. XII. 5, notice in wrilinj^ of 
 the appllcati'U mu^t he served on the so- 
 licitor oltlic Suitors' l'\ind, two clear (ia>9 
 at least hefore it is intended to he made. 
 
 '" Tattershall t'. Crampton, cited Seion, 
 1273. 
 
 1' Williams v Parkinson, 6 Sim. 74. 
 
 12 For form of order, see Seton, 1273, No. 
 14; and for form of motion pap r, see Vol. 
 III.
 
 502 
 
 COMPELLING ANSWER. rROCEEDTNOR IN DEFAULT. 
 
 (^1. X. 5 '2. 
 
 Solicitor to 
 Suitors' Fee 
 Fund to visit 
 Wliitei'mss 
 Street Prison 
 four Liiues a 
 year; 
 
 examine the 
 prisoners in 
 contempt ; 
 Hiid report 
 thereon to 
 lx)rd 
 
 Chancellor, 
 who may 
 assitrn a 
 solicitor. 
 
 Jailers to 
 make reports 
 to Lord Chan- 
 cellor, of all 
 Chancery 
 prisoners in 
 other prisons. 
 
 On oath of 
 poverty, 
 
 Ix)rd Chan- 
 cellor may di- 
 rect inquiry. 
 
 for a habeas cor/w.s- to l»riii<j; tlu' dofendant to tlio bav;^ and 
 oil his being brought tip, may apply to have the bill taken pro 
 confesso; aii<l an order maybe made accordingly, in the manner 
 before explained.'- 
 
 Tn order lo j)revent the possibility of any prisoner being snffered 
 to remain in neglected ini])risonment, without reaping the benefit 
 of the ]>rovisions above mentioned, for the relief of defendants 
 whoso only reason for non-compliance with the rules of the Court 
 is ]>overty, it is enacted that, in the last Aveek of each of the 
 months of January, April, July, and October in every year, the 
 solicitor to the Suitors' Ftuid for the time being, or some other 
 officer of the Court of Chancery to be ap])ointed by the Lord 
 Chancellor from time to time, shall visit Whitecross Street 
 Prison,^ and examine the prisoners confined there for contempt, 
 and shall report his opinion on their respective cases to the Lord 
 Chancellor; and thereupon it shall be lawful for the Lord Chan- 
 cellor, if he shall think fit, to assign a solicitor to any such ))ris- 
 oner, not only for defending him in forma pauperis, but generally 
 for taking such steps on his behalf as the nature of the case may 
 re(juire ; and to make all or any such orders as the Lord Chan- 
 cellor was empowered to make, after the like report of a Master 
 un(h>r the seventh rule of the 11 Geo. IV. & 1 Will. IV. c. 36, 
 § 15." 
 
 It is further enacted, that when any person shall be committed 
 to any prison, other than Whitecross Street Prison,^ under any 
 writ or order of the Court of Chancery, the jailer or keeper of 
 the prison in which such person shall be confined shall, within 
 fourteen days after such person shall have been in the custody of 
 such jailer or keeper, make a report to the Lord Chancellor, con- 
 taining the name and description of such prisoner, with the cause 
 and date of his commitment, and a copy of the Avrit or order 
 xmder which he was committed; and if such prisoner shall make 
 oalh, before one of the visiting Justices of such jail, or a commis- 
 sioner for taking oaths in the Court of Chancery, that he is unable 
 by reason of ]joverty to employ a solicitor, the report shall contain 
 a statement to that effect; and it shall thereupon be lawful for the 
 Lord Chancellor to direct the solicitor to the Suitors' Fund to 
 ascertain the truth of such statement, and if true to take such 
 
 1 As to the mode of issuinjj the writ, see 
 /in/e, p. 4'Jl; iind for I'nrnis of the writ, in- 
 dor-ement, and pracipe, see Vnl. III. 
 
 2 Hull r. Kalkner, 11 .lur. 235, V. C. K. 
 B. For forjii of order in such CHse, see 
 Se'on, 1273, No. 14; and see ffw/e, p.-4'.)2. 
 
 8 .Suhs'ituted forthe Queen's Prison, by 
 25 & 26 Vic c. 104, § 2. 
 
 < 23 & 24 Vic. c. 140, § 2. For form of 
 order, gee Seton, 1272, No. 9; and see ib. 
 
 1284, No. 16. The solicitor to the Suitors' 
 Fund is usually as'^ign- d tlie snljcitor; and 
 the counsel to that lundi-^ usual!}' assigned 
 tht; defendani's counsel. Tlu; order may 
 also be made by the Lords .Justices. 23 
 & 24 Vic. c. 140, § 13; and it may be 
 obtained on motion of course. L.ivton v. 
 Mdrtimore, 2 De (}., F. & J. 353; iInd see 
 ante, p. 154. 
 6 See 23 & 24 Vic. c. 149, § 2.
 
 AGAINST PARTICULAR DEFENDANTS. 
 
 503 
 
 steps, on behalf of any such prisoner, as the nature of the case may 
 require ; and the Lord Chancellor may thereupon, if he shall see 
 fit, make such order or orders as he is empowered to make under 
 the second section of the Act, which is above set forth.^ 
 
 By the seventh rule of the 11 Geo. IV. & 1 Will. IV. c. 3G, § 15, 
 the Court is authorized to order that the costs of the contempt 
 of any such prisoner shall be paid out of the Suitors' Fund,^ 
 and that any such prisoner, having previously done such acts as 
 the Court shall direct, shall be discharged out of custody ; but, if 
 any such defendant become entitled to any funds out of the cause, 
 the same are to be applied, under the direction of the Court, in 
 the first instance to the reimbursement of the Suitors' Fund.^ 
 Applications to the Court under these provisions must be made to 
 the Lord Chancellor or Lords Justices ; * and as they are entirely 
 framed for the relief of defendants, no such order can be made 
 on the appUcation of the plaintiif.^ 
 
 It is also provided, that it shall be lawful for the solicitor to 
 the Suitors' Fund, or other officer visiting the prison, to examine 
 the {trisoners and all other persons whom he may think proper, 
 upon oath, and to administer an oath or oaths to any such pris- 
 oner and other persons accordingly, and to cause any officers, 
 clerks, and ministers of any Court of Law or Equity to bring 
 and produce upon oath before him any records, orders, books, 
 p.ipers, or other writings belonging to the said Courts, or to any 
 of the officers within the same, as such officers.® 
 
 If it appears to the satisfaction of the Court, that any prisoner 
 is an idiot, lunatic, or of unsound mind, the Court may appoint 
 a guardian to put in his answer and discharge the defendant : 
 I)roviding for the costs as -shall seem just; and if the Court 
 shall see fit, the defence may be made by such guardian in forma 
 pauperis!' 
 
 The above provisions prevent the possibility of a defendant 
 being detained in custody in consequence of his not being able, 
 by reason of poverty, or of insanity or imbecility of mind, to 
 put in his answei- in the ordinary way. But it frequently happens 
 
 Ch. X. § 2. 
 
 and assign 
 solicitor. 
 
 Costs of con- 
 tempt maj- be 
 ordered out 
 of Suitors' 
 Fund. 
 
 Provision for 
 its reimburse- 
 ment. 
 
 Application 
 to be made 
 to Court of 
 Appeal. 
 
 Visitor of 
 prisoners 
 may examine 
 them, or other 
 persons, on 
 oath; 
 
 and order 
 production of 
 documents. 
 
 Where 
 jirisoner is 
 of unsound 
 mind ; 
 
 or where 
 obblinate. 
 
 1 23 & 24 Vic. c. 149, § 5. The like or- 
 der asfijiiiiiK a s'-l'^^^'for "I'l counsel may 
 be mu'le in tliis ca»<> a* under § 4, 't7i/(>, pp. 
 600, 6itl -.and In- the I,or<ls .lusticcs, as well 
 a-H by the I.or.rCliancitlior. 'I'i & 24 Vic. 
 c M'>, § 13. For form of order under § 5, 
 see SetoM, 1272, No. 10. 
 
 2 And tliis mjiy be done where the de- 
 fcnUint i-" an executor. Bayly v. Bayly, 
 11 Ufav. 2r)(i. 
 
 8 S.-c also 23 & 24 Vir. c. 149, § 6, 
 which contain* simiinr provixinns as to 
 coot', iind frovidps aUo that any co«ts to 
 ■which III"' (lelcndant may becotrii! entitled 
 in the suit or proceedings, shad be paid 
 
 into the Suitors' F'und. For orders under 
 these sections, see Seton, 1273, Nos. 15,16. 
 In Wiir.i J'. Woodcock, 5 L. T. N. S 816, 
 L (J., !in ordiT for payment of the j)lain- 
 tifl's costs of dt^fi'Mdint's contempt, in dis- 
 obevintr an injunction, wms refused. 
 
 4"23 & 24 Vic. c. 149, § 13. 
 
 6 Watkin i'. Parker, 1 M. & C 370; 
 (;Mrr<Mi i;. Ilolden, 4 Beav. 245; ante, pp. 
 60(1, 501. note. 
 
 23 & 24 Vic. c. 149, § 3. 
 
 ■ 11 (;eo. IV. iS: 1 Will. IV. c. 30, § 15, 
 r. 9. As to tiie appointment of j:uardiiin« 
 ail lilfm, and as to deft-nilins in fortnd 
 pauperis, see ante, pp. 164, 156, 176.
 
 504 
 
 COJUPELLINO ANSWER. rROCEEDINOS IN DEFAULT. 
 
 Ch. X.§;5. that a (lofbndant is obstinato, :nul rofuses oitlu'r to appear or to 
 put in his answer, although he has not the excuse of poverty or 
 want of intoUoct to justify his refusal. In such cases, the phiin- 
 tift" may obtain justice, in one or other of the modes above 
 
 pointed out. 
 
 Section III. — Effect of a Contempt upon the Proceedings in the 
 
 Cause. 
 
 Party in con- 
 tempt cannot 
 make any 
 application to 
 the Court. 
 
 Where appli- 
 cation stands 
 over, and a 
 contempt is 
 incurred 
 before its 
 renewal. 
 Contemner 
 may move to 
 defend in 
 forma 
 pauperis. 
 
 Besides the personal and ])ecuniary inconvenience to which a 
 party subjects himself by a contem))t of the ordinary ])rocess of 
 the Court, he places himself in this further predicament ; viz.^ that 
 of not being in a situation to be heard, in any application which 
 he may be desirous of making to the Court.^ Lord Chief Baron 
 Gilbert lays it down, that "upon this head it is to be observed, as 
 a general rule, that the contemnor, who is in contempt, is never to 
 be heard, by motion or otherwise, till he lias cleared his contempt, 
 and paid the costs : as, for example, if he comes to move for any 
 thing, or desires any favor of the Court." ^ Thus, in Lord Wen- 
 man V. Osbaldistoti,^ where a defendant, being in contempt for not 
 putting in his examination pursuant to an order, to avoid a seques- 
 tration moved the Court that, upon his undertaking to pay in a 
 week's time what should appear to be due to the plaintiff, all 
 further process of contempt should be stayed, the Couit declined 
 making any order upon the motion, but directed the a])pellant to 
 clear his contempt, and then move ; and this determination of tlie 
 Court w^as affirmed by the House of Lords, upon appeal. 
 
 But where, after a petition had stqod over at the request of the 
 res))ondent's counsel, for his convenience, the petitioner incurred 
 a contempt, which had not been cleared when the petition came 
 on again, it was held, that the petitioner was, nevertheless, entitled 
 to be heard ; * and, it seems, that a party who is in contempt for 
 
 1 Where a party is in contempt, the 
 Court will not grant an application in his 
 favor, which is not a matter of strict right, 
 until he has purged his conteni[)t. .John- 
 son V. Pinney, 1 Paige, 4*)6; Rogers v. 
 Paterson, 4 Pnige, 450; Kllingwood v. 
 Stevenson, 4 Sandf. Ch. 3G6. He will 
 not be iiUowed to contradict the iiljeca- 
 tions in the hill, or bring forward any de- 
 fence, or allege any new fact. Mussina 
 V Biirtlett, S Porter, 277; Siiylor v. Mock- 
 bie, 9 I'lWii (1 With.), 209". Nor is he 
 allowed to appenr and contest the plain- 
 tiffs demand, bifori' the Clerk and Master, 
 to whom the hill niay be referred to take 
 an account; but the inhibition can at any 
 time be removed by tiling a full and com- 
 plete answer. Mussina v Bartlett, 8 Por- 
 ter, 277; see Kutherford v. Metcalf, 5 
 
 Hayw. 58. A defendant, against whom 
 tlipre is prima fncit evidence of being 
 guilty of a breach of an injunction, can- 
 not be heard upon a inotiorj to discharge a 
 ne exeat against him in the sann' cause, 
 until he has purged himself of the con- 
 tempt. Evans v. Van Hall, 1 Clarke, 22.3. 
 A party in contempt may move by coun- 
 sel to set aside the order afiainst him; for 
 every other purpose he must appear in 
 vincuUs. Odell v. Hart, 1 Moll. 492; ste 
 Lane v. Kllzev, 4 Hen. & M. 504 
 
 2 Gilb For. Rom. 102; Vowles ». 
 Young, 9 Ves. 172, 173. 
 
 3 2 Bro. P. C. ed. Toml. 276; 2 Kq. Ca. 
 Ab 222, PI. 1. 
 
 * Bris'owe v. Needham, 2 Phil. 190; 1 
 C. P. Coop. t. Cott. 286.
 
 EFFECT OF A CONTEMPT UPON PROCEEDINGS IN CAUSE. 505 
 
 non-payment of costs, is not thereby prevented from moving for Cn.X . § 3. 
 leave to defend in forma pauperis} '^ 
 
 The rule, that a partv in contempt cannot move till he has Rule against 
 
 ^ • . r- 1 T, V. motion by a 
 
 cleared his contempt, is, in practice, confined to cases where sucn contemner is 
 party comes forward voluntarily, and asks for an indulgence ; and, ^^^^^^l^^^'' 
 therefore, a defendant cannot ol)iect to a cause being heard be- applications. 
 cause the plaintiff is in contempt.'^ 
 
 In like manner it has been held, that a mortgagee, defendant to Contemner 
 
 . . 1 T ^ 1 *i cannot move 
 
 a bill of foreclosure, who is m contempt, could not move, under the under? Geo. 
 
 7 Geo. II. c. 20, for a reference to take an account of the principal f^l;^^;^^^^^'^ 
 
 and interest due upon the mortgage.^ And so, where a party in suit; 
 
 contempt had aj^jilied for and obtained the costs of an aljandoned "oj^Jave the 
 
 motion, under Lord Eldon's order,^ Sir Lancelot Shadwell V. C, abandoned 
 
 upon motion, discharged the order.^ "^° '°°' 
 
 So also, where a motion had been refused with costs, it was held, ^^^'^^''^r^^^^^jj 
 
 that the motion could not be renewed, though on different grounds, payment of 
 
 until the costs had been paid.* nai motion. 
 
 It is to be observed, however, that the rule, that a party cannot 
 
 ' ' . . ' . . Rule applies 
 
 move till he has cleared his contemiU, is conhned to jiroceedings m only to pro- 
 
 the same cause ; and that a party in contempt for non-obedience to ^j^fg^'^g"^ 
 an order in one cause, will not be thereby prevented from making cause. 
 an application to the Court in another cause relating to a distinct 
 matter, although the parties to such other cause may be the same i'' 
 and this privilege has been carried to the extent of allowing a de- 
 fendant, in each of two creditors' suits to administer the same 
 estate, to move in one of them, in which he was not in contempt, 
 to stay proceedings in the other, in which he was.* 
 
 And although it is the general rule of the Court that parties Contempt 
 must clear their contempt before they can be heard, yet the rule preventappli- 
 must not be understood as preventing their making application to |,'^JJ,^j'^/^^ ^^^ 
 the Court to discharge, on the ground of irregularity, the order, contempt 
 by their non-obedience to which their conteni])t has been incurred; I'^egui^rity; 
 therefore, whore a defendant, in custody for a contempt in not 
 obeying an order to ]>ay in money, applied to the Court to dis- 
 charge him out of custody, on the ground of irregularity in the 
 order (it liaving been made pending an abatement of the suit), he 
 
 1 OMfipld V ColibPtt, 1 Phil 613. 014 Coop. t. Cott. 207, wliere the cases are 
 
 2 Hick.-tts V. Moriiingtoii. 7 Sim. 200; c llcctec! as to the pioceeding^, for his own 
 and see the ciises on this suhject collected adviintii^'c, which a party in contempt 
 in 1 (',. P. Coo|). t. Co't. 208;' see also I''iit- cannot tiike. 
 
 vovc 7) Keiiniird, 2 (Jiff 110; Krv v ICrn- <> Oldfuld v. Cobbett, 12 Beav. 91, 95. 
 
 eM,i) Jur. N. 8. llol; 12 \V. U. 97, V. ' Clark v. Dew, 1 R. & M. 103, 107; 
 
 C. W.; Storv V. Oflieial M:m!iecr ..ftlio Gompertz r. Ret, 1 Y. & C. Kx. 019; 
 
 N.itionnl Insurance Society, 2 N. K. .3ol, T^vh.r v. Tavlor. 1 M'N. & G. :m, 409; 
 
 V. <;. W. 12 I5eav 220, 228; Krv v. Kinest, 9 .lur. 
 
 8 Hewitt V. MTartney, 13 Ves. 500. N. S. IK.l; 12 VV. R. 97, V. C. W. 
 
 * Oen. (}r<\ r, Anjj., 1818; Sand. Ord. « Turner i) Dorpnn, 12 Sim. 504 ; fi .Inr. 
 
 706; II av. Ord. 3, now Ord. XL. 23. 350; Morri-on v. Morpson, 4 Hare, 590; 
 
 « KiliH V. WMiii^hy. 4 L. .J. C,h. 00; 9 .lur. 103; 1 C. P. Coop. t. Cott. 216, 
 
 S. C. nom. Ellice v. Walmsley, 1 C. P. 217.
 
 500 
 
 COMPELLING ANSWER. — rUOCEEDINGS IN DEFAULT. 
 
 On. X. $ ;i. 
 
 tint I'Oll- 
 
 tfiniior must 
 not mix up 
 iiiluT niattors 
 >villi his 
 ap|ilicutioii. 
 
 PliiintifT may 
 attach for 
 want of an 
 swiT, tiioui;h 
 in custody for 
 non-payment 
 of costs to 
 same defend- 
 ant. 
 
 Contcmnor 
 may oppose 
 sjiocial 
 a]ipii(ation 
 aicainst him; 
 
 may move to 
 discharge 
 order, by 
 appeal ; 
 
 may show 
 irrcfrularity 
 of proceed- 
 ings under 
 thecontempt; 
 
 may give 
 notice of 
 motion, be- 
 fore contempt 
 cleared; and 
 may proceed 
 •with a taxa- 
 tion of costs. 
 
 Contempt not 
 incurred till 
 ■writ sealed. 
 
 w;is not only lioanl, but tlu' order for liis discliarsfo was made : 
 tlioiinh, under ihe circumstances, without costs.^ In such cases, it 
 is to be observed tl»at, in ntaldng bis application, the party in con- 
 tempt ought to confine his motion to the object of getting rid of 
 the order of which he com])lains ; and that if he eml)races other 
 matters in his notice of motion, he will not be allowed to go into 
 such other matters till he has shown tliat the order upon which 
 his contempt has been incurred was irregular.'^ 
 
 A plaintiff is entitled to sue out an attachment against a defend- 
 ant for want of answer, although he is liimself in custody for a 
 contem])t in non-i)ayment of costs to him.^ 
 
 It is also to be observed, that the circumstance of a party being 
 in contempt, will not prevent his being heard in opposition to any 
 special ap])lication which the other side may make, upon notice 
 duly served upon him ; and where a ))laintiff had obtained, fron\ a 
 Vice-Chanccllor, an order for paynuuit of a sum of money into 
 Court, against a defendant, who was in contempt, the Lord Chan- 
 cellor allowed him to move to discharge that order, on the ground 
 that it was a rehearing of the original a))plication.* So also, Avhere 
 there is any irregularity in the prosecution of the decree or order 
 obtained under the contempt, a party in contempt may be heard 
 to obtain redress.^ 
 
 Although a party cannot move until he has cleared his contempt, 
 yet he may give notice of his motion before he- has done so ; " and 
 a party to whom costs are awarded, may proceed in the taxation, 
 notwithstanding he may be in contempt.' 
 
 Although a defendant, not appearing or answering within the 
 regular time, is frequently said to be in contempt, yet it does not 
 seem that the contempt is actually incurred until the writ enforc- 
 ing obedience to the orders of the Court has been sealed. Thus, 
 after the regular time for answering has expired, provided no at- 
 tachment has issued against a defendant, he may file a joint de- 
 murrer and answei- : ® which, had process actually commenced, 
 might have been taken off the file for irregularity.^ 
 
 1 Wilson V. Metcalfe, MSS. In matfrs 
 of contempt, exceptions may be taken on 
 the question of juris<liction, where it is 
 distinctly raised and adj^idicated upon as 
 matter of law. Androscoggin and K^n- 
 nf-bec U.K. Co. v. Anriroscoggiu K.R. Co., 
 49 Miiine, 3U2. 
 
 2 Jbicl. ; 1 C. P. Coop. t. Cott. 216; 4 
 Hare. 59.5. 
 
 3 Wilson V. Bates, 9 Sim. 54; 2 .lur. 
 107; 3 M. &C. 197, 204; 2 .Jur. 319; and 
 see 1 C. P. C(Jop. t. Cott. 220, where the 
 cases are collected as to the proceedings, 
 for Ills own advantage, which a party in 
 contempt rnav tak«. 
 
 * I'arker v. Dawson, 5 L. J. Ch. 108; 
 see also Ex pavU Chad wick, 15 Jur. 597, 
 
 V. C. K. B ; Reeve v. Hodson, 10 Hare 
 Ap. 41; Bickford v. Skeeves, 10 Sim. 
 193, 196; S. C. nom. Bickford v. Skewes, 
 3 .lur. 818; Futvoye v. Kennard, 2 GifF. 
 110 
 
 5 King V. Bryant, 3 M. & C. 191, 195; 
 2 .Fur. 106. 
 
 6 Chuck V. Cremer, 1 C. P. Coop. t. 
 Cott. 247. 
 
 7 Newt(m V. Rickelts, 11 Beav. 67. 
 
 8 East India Company «. Henchman, 3 
 Bro. C C. 372; Sowerby v. Warder, 2 
 Cox, 268. 
 
 '■> Curzon V. De la Zouch, 1 Swanst. 
 1S5; 1 Wils. C C. 469: see al*o Attorney- 
 GeU'Tal V. Shield, 11 Heav. 441, wliere it 
 was held, that taking an oflice copy of the
 
 HOW CONTEMPTS CLEARED, WAIVED, OR DISCHARGED. 
 
 507 
 
 It seems, that a party in, contempt can apply for the purpose of 
 removing scandal from the records of the Court.^ Although it was 
 held hy Lord Cottenham, in Wilsoti v. JBates,"^ that a plaintiff in 
 contempt is not precluded from availing himself of the ordinary 
 process to enforce an answer, it appears that the fact of his behig 
 in contempt may be made the ground of a special application by 
 the defendant to stay proceedings in the cause, until such contempt 
 has been cleared.^ And in general, whenever a party in contempt 
 is entitled to be heard, there exists a right of appeal, and applica- 
 tions may be made with immediate reference to the motion upon 
 which he is so ])rivileged to be heard, or for the purpose of obtain- 
 ing evidence in support of it.^ 
 
 Ch. X. § 4. 
 
 Contemner 
 may appeal. 
 
 Section^ IV. — In what manner Contempts in Process may be 
 cleared, waived, or discharged.^ 
 
 An ordinary contempt in process, as it is a matter merely be- 
 tween the })arties, may be cleared by the contemnor doing the act, 
 by the non-performance of which the contempt was incurred, and 
 paying to the other party the costs he has occasioned by his 
 contumacy. 
 
 Where process has been issued against a defendant in contempt 
 for want of appearance or answer, but has not been executed, the 
 defendant should enter his appearance or put in his answer, and 
 pay or tender to the plaintiff's solicitor the costs of the contempt, 
 if the amount of such costs can be lifjuidated : as in the case of an 
 attachment;" but if the amount of the costs cannot be ascertained, 
 he sliould tender such a sum as will cover their probable amount.'' 
 If the plaintiff's solicitor accept the costs so tendered, it will be 
 at the ])laintiff's own risk if he afterwards puts the process into 
 execution. If his solicitor refuse to accept the costs when tendered, 
 it is necessary, in order that the defendant may, upon payinent or 
 tender of the plaintiff's costs of the contempt, be discharged from 
 his contempt, that he should obtain :ui onler for that purpose: 
 
 answer wms not a waiver of the objection. 
 Hut if the pliiliitiff ri^tain tlie oflice copy 
 till the time for excpting to the answer 
 for insuttici'-ncy has ehip»c<i, the contcmjit 
 will b« waived. Ilerrett v. Reynolds, 2 
 Gitr. 40'j; O.Iur. N. S. 880. 
 
 1 Kverettr. I'rvther^ch, 12 Sim. 363; 
 CatteM V. Simous, 5 IJfav. 30G; Aytk. 
 Ch. f'r. (Lond. ed. 1841) l'J7, 198; i 
 Smith, Cti. I'r. (2d Ain. ed.) fjG9, f,VO; 
 Ilowuril I- Newman, 1 Midi. 221. 
 
 2 8 M. & C. 1H7, 204; 2 .lur 319; see 
 also Hicklnrd v Skewcs, ubi sup. 
 
 ^ l«nidi>iiry r. Shawe, 14 .(iir. 1042, 
 V. C. K. 13. ; Futvoye v. Kennard, ubi sup. 
 
 Ordinary 
 contempt 
 cleared, by 
 doing- the act, 
 and paying 
 the costs. 
 
 Where 
 
 proce.ss has 
 not been 
 executed: 
 
 Payment or 
 tender of 
 costs. 
 
 If costs ac- 
 cepted, no 
 onler neces- 
 sary. 
 
 Secuf, if not 
 accepted. 
 
 For form of notice of motion in such case, 
 see Vol. III. 
 
 * ('attell V. Simons, uhi sup. 
 
 5 S(-e Lowe V. Blake, 3 l)e«aus. 209; 
 Siielliiifj «. Watrou-i, 2 I'aitre, 314. 
 
 Wilkin V. Naiiiby, 4 Hare, 473, 475; 
 10 .Iiir. 7.'i5. The amount partible to clear 
 a coiitpmi)t, on an attachment executed, 
 is I.3.S. 8r/. : Urnwii v. Lee, 11 Heav 379; 
 if not executed, ll.i. 2r/. : Uraithwaite's 
 I'r. 1.04; and 2s. 6f/. extra for each addi- 
 tioiril defendant: ibid. 
 
 ' Wdkin V. Hiuiiby, ubi sup. ; Brough- 
 ton V. Martyn, 4 Uro. C. C 296.
 
 508 
 
 COMPELLING ANSWER. PROCEEDINGS IN DEFAULT. 
 
 Cii. X. 5 4. 
 
 VThero 
 
 Eroccss has 
 ecn exe- 
 cuted : 
 
 Payment or 
 tender of 
 costs. 
 
 Order always 
 necessary-, 
 unless plain- 
 tiff accepts 
 answer and 
 the costs. 
 
 Defendant 
 may be dis- 
 charged, 
 upon putting 
 in answer, 
 though its 
 sufficiency 
 not ascer- 
 tained. 
 
 Ifinsufficient, 
 process may 
 be resumed. 
 
 utluTwisL', the coiitiMnpt. will contimic' An order of this luiturc 
 is made on motion of course, or on petition of course at the Kolls,'^ 
 upon the Kocord and AVrit Clerk's certificate of tlie defendant's 
 apjtearance or answer." 
 
 Where tl\e j)rocess has been carried into effect, and the defend- 
 ant is in actual custody, lie cannot be discharged without an order: 
 which must be obtained in a similar manner,* and which will direct 
 the defendant to be discharged, upon payment or tender of the 
 costs of the contempt. These costs are either fixed or ta.xed costs, 
 according to the stage which the contempt process has rea('he<l : 
 thus, if the defendant has merely been arrested on the attachment, 
 the costs, as we have seen,^ are of a fixed amount ; but if he has 
 been brought up by the messenger, or upon habeas corpus, or by 
 the Sergeant-at-arms,*' he is liable to pay taxed costs.' If the ))ar- 
 ties can agree upon the amount, the defendant should pay it ; but 
 if they cannot, he should tender to the ])laintiff such a sum as will 
 cover the amount which will probably be allowed on taxation. 
 
 It would appear, moreover, that strictly in all cases of contempt 
 (exce|)t where, the defendant not being in custody, the plaintiff is 
 willing to accept the answer and the costs tendered), the defend- 
 ant ought, upon filing an answer, to obtain an order for his dis- 
 charge, on jniyment or tender of costs : as otherwise, the plaintiff 
 may move to have the answer taken off the file for irregularity.^ 
 
 It is to be observed, that where process of contempt has been 
 issued against a defendant for want of an answer, he is entitled to 
 be discharged from his contempt immediately upon his putting in 
 an answer, and paying or tendering the costs of his contempt ; 
 and the Court will not detain him in custody till the sufHciency of 
 his answer has been decided upon : ^ unless he has already put in 
 three answers, which have been found insufficient.'"' If, however, 
 the plaintiff takes exceptions to the answer, and the answer is held 
 insufficient, he will be entitled to resume the process of contempt 
 where it left off;" and so he will, where the defendant submits to 
 answer the exceptions.'^ Nor will the acceptance of costs be con- 
 
 1 Green v. Thomson, 1 S. & S. 121. 
 
 2 For Corms of motion paper and peti- 
 tion, see Vol. III. 
 
 3 Green v. Thomson, and Wilkin v. 
 Nainbv. uhi sup. 
 
 * Gray v. Campbell, 1 R. & M. 323; 
 Edmonson v Ileyton, 2 Y. & (3. Kx. 3. 
 But a defendant in contempt for want of 
 answer, cannot lile an answer and de- 
 murrer. Ciirzon V. I)e In Zoucli, 1 Swanst. 
 185, 193; Vigers v. Lord Audlev, 2 M. & 
 C. 49, 52; 1 .lur. 51; Attornev-General v. 
 Shield, 11 Beav. 441, 446. For forms of 
 mr>tii)M paper and petition, see Vol. III. 
 
 5 Anie, p. 4GC, n. (w). 
 
 8 Ante, pp. 448, 449, 452. 
 
 7 Wilkin V. Nainby, 4 Hare, 473, 475; 
 10 Jur. 735; Bi aithwaite's Pr. 154. 
 
 8 Haynes I'. Ball. 5 Beav. 140; Wilkin 
 V. Niiinbv, wit swjo ; Coyle v. Alleyne, 16 
 Beav. 548. 
 
 Dupont V. Ward, 1 Dick. 133; Child 
 »). Brabson, 2 Yes. S. 110; Boehm »;. De 
 Ta^tet, 1 V. & B. 324, 327. 
 
 w Hailev v. Bailev, 11 Ves. 151. 
 
 11 Anon., 2 P. Wins. 481; Wallop v. 
 Brown, 4 Bro. C. C. 212, 223; Bromtield 
 V. Cliiche,'^ter, 1 Dick. 379; Bailey r. BmIIi-j', 
 and Bof-hm v. De Tastet, ubi. sup.; Coul- 
 son K. (iraham, 1 V. & B. 331; Taylor v. 
 Salmon, 3 M. & C. 109. 
 
 112 Waters v. Taylor, 16 Ves. 417.
 
 HOW CONTEMPTS CLEARED, WAIVED, OR DISCHARGED. 509 
 
 sidered as a waiver of the contempt by the plaintiff: for, where a Ch. X. § 4. 
 
 defendant, in contempt for want of answer, obtains, upon fihng '• y -" 
 
 his answer, the common order to be discharged as to his contempt, 
 on payment or tender of the costs thereof, or the plaintiff accepts 
 the costs without order, the phuntiff cannot be compelled, in case 
 tlie answer is insufficient, to recommence the process of contempt 
 against the defendant, but is at liberty to take up the process at 
 the point to which he had before proceeded.^ 
 
 But although a plaintiff does not now, by accepting the costs Waiver of 
 from a defendant upon his putting in an answer, forfeit his right to contempt: 
 recommence the process of contempt at the point where it left off, 
 yet if, after answer put in, he accepts the answer, or takes a step in 
 the cause, he waives the contempt, and cannot renew the process, 
 or take any other advantage of it. Thus, if a plaintiff reply to ^y accepting 
 the answer,- or move upon an admission contained in it,^ he waives answer. 
 the contempt ; and so, where a messenger had been ordered, upon 
 a return of cepi corpus, and in the mean time the defendant filed 
 his answer, which the plaintiff accepted, and then applied for his 
 costs by motion, it was heUl, that the acceptance of the answer 
 precluded him from his right to costs.* And where a defendant, 
 who was in contempt, put in an answer, without paying or tender- 
 ing the costs, and the plaintiff replied to the answer, but did not 
 proceed with the cause for three terms, whereupon the defendant 
 moved to dismiss the bill for want of prosecution : upon the plain- 
 tiff's objecting that the defendant could not make the motion, in 
 consequence of his being still in contempt. Lord Eldon held, that 
 the contempt was gone, and that the defendant was in a situation 
 to make the motion.* It has been held, however, that the mere 
 fact of the plaintiff bespeaking a copy of the answer does not 
 operate as a waiver of the contempt.^ 
 
 Where the plaintiff accepted the answer, without insisting upon After accept- 
 
 the costs of the contempt. Lord Eldon lield that the plaintiff hud ajn-^c^of ^^^^ 
 
 not thereby given up his right to the costs, as costs in the cause, of contempt 
 
 but had only waived his right to enforce them by means of the gl',"^™' J ^s^ 
 
 process of contem'pt.'' And where a defendant, in contempt for costs in the 
 
 „ ,i.-.i • ai • ^ 1 cause. 
 
 want of an answer, had put \n three nisumcient answers, and, 
 
 pending a refercuce of the lourth, put in a iifth answer, which was 
 
 accepted by the plaintiff, upon which a motion was made that the 
 
 ' Orel. XII. 7. * Anon., 15 Ves. 174; and the prnctice 
 2 Haviieft V. Ball, 5 Beav. 140. i-i the siiine, wliether the dcfemlant be iict- 
 8 lli'skinn f. Llovd, 1 S. & S. 303; unlly in cu>-l<)<ly or not. Oidlicid v. Cob- 
 Chuck r. Creiiicr, l" C. 1'. Coop. t. Cott. belt" 1 I'liil. f..'/7. 
 
 247; and nee Woodwiinl r. Twinaine. " Woodward «. Twiiiainc, and Herrett 
 
 Sim. 301; 14.1ur. 20; Ilern-tt r. Uuynolds, v. Keynoidn, «/;(»h/^. 
 
 2 (jiff. 40y; Jur. N. S. b80; (in<«,"p. 606, ' Anon., l.'i Ves. 174; see alfo Smith v. 
 
 D. 9. Bloficid, vhi lup. 
 * Smith i;. BloOeld, 2 V. & B. 100.
 
 510 
 
 COMrELLING ANSWER. — TROCEEDINGS IN DEFAULT. 
 
 Cii. X. $ l. 
 
 Ordor to 
 nnu'iKi only 
 is not, but to 
 aniciul and 
 aijsw'er 
 amendments 
 and excep- 
 tions together 
 is, u waiver. 
 
 Where 
 defendant in 
 custody, 
 plain titt' maj' 
 obtain special 
 leave to 
 amend, with- 
 out discharg- 
 ing the 
 contempt ; 
 
 and defend- 
 ant may be 
 allowed to 
 
 Filing a cross- 
 bill, nonwaiver 
 of contempt 
 incurred by 
 plaintiff in 
 original suit. 
 
 Contempt 
 discharged 
 for irregu- 
 larity, on 
 motion. 
 
 (lofoiKlant mi^lit imy the costs oi' tlu> contciiij)!, and of the lour 
 iiisutiii'ic'iit answiMs, Sir Tlioiuas IMimuT V. C'. held, ihut he eotihl 
 nut neeede to the motion.' 
 
 In the case of JAvingstone v. Cooke^-- it a|ij)eai\s tliat Sir Lance- 
 U>t Shadwell \ . C. decitled, that :i mere order to amend the bill 
 did not operate as a waiver of the contempt: upon the ground 
 that it creates no obstacle to the defendant putting in his answer ; 
 it was admitted, however, that an order to amend, and for the 
 defendant to answer the excei)tions at the same time, does operate 
 as a waiver of the coutem])t, as it ])revents the defendant from 
 putting in his answer. Where the defendant has been brought to 
 the bar of the Court for his contempt, and refuses to answer, it is 
 provided, by the 11 Geo. IV. & 1 Will. IV. c. 36, § 15, rule 10, 
 that the Court may, upon motion or petition, of which due notice 
 must be given personally to tlie defendant, authorize the plaintiff 
 to amend his bill, without such amendment operating as a discharge 
 of the contempt, or rendering it necessary to proceed with the 
 process of contempt de novo:^ but after such amendment, the 
 plaintiff may proceed to take the amended bill pro confesso, in 
 the same manner as if it had not been amended: provided, that if 
 the defendant desires to answer the amended bill, the Court shall 
 allow him such time as seems just for that purpose ; but if he 
 shall not put in a sufficient answer within the time limited, the 
 process for taking the bill j»:)ro confesso may be resumed and carried 
 • on. It would appear, that an order to discharge a defendant in 
 custody for a contem})t, nj^on the plaintiff's amending his bill, 
 where the amendment is not made under the above statute, may 
 be obtained ex parte^ and without payment of costs.^ 
 
 It is to be observed, that a step taken in the cause must, in 
 order that it may have the effect of a waiver of contempt, be in 
 the cause itself in which the contempt has been incurred ; there- 
 fore, where a plaintiff was in contempt for non-payment of some 
 costs, the filing of a cross-bill by the defendant was held not to be 
 a waiver of the contempt by the defendant, so as to permit the 
 plaintiff to make a motion in his own cause.^ 
 
 Where any of the processes of contempt before referred to have 
 been irregularly issued, the defendant should apply to the Court 
 on motion, and notice to the j)laintiff, "^ su})ported by affidavit, to 
 
 3 See ante^ p. 3S6. It is presumed the 
 ajii/licatinn cannot be nuidc by summons, 
 notwitlistandmg 15 & l(i Vic. c. «0, § 26. 
 For form of notice of motion, see Vol. III. 
 
 4 (JrHV V. Campbell, 1 \i. & M. 323; 
 Ball V. Etches, ib. 324. 
 
 6 Gompertz v. Hest, 1 Y. c& C. Ex. 619; 
 and see antu, p. 4U4. 
 
 6 For form of notice of motion, see Vol. 
 lU. 
 
 1 Const V. Ebers, 1 Mad. 530, 531. It 
 seems, however, tliat accoroing to the 
 practice, m taxation as between party and 
 party, the costs of the coiiteniiit, tven 
 where there is a decree tor the ])lainti<f 
 with costs, will not be allowed him as costs 
 in the cause. Attorm-y-Ueni-'ral v. Lord 
 Cairington, tj Beav. 454, 4G0. 
 
 ^ \i Sim. 4tj^; but see Symonds v. 
 Duchess of Cumberland, 2 Cox, 411.
 
 HOW CONTEMPTS CLEARED, WAIVED, OK DISCHARGED. 
 
 511 
 
 set them aside or discharge them with costs ; and we have seen, 
 that the circumstance of his being in contempt will not preclude 
 his making such an aj)plication.^ 
 
 Where a sole plaintiff died, leaving a sole defendant in custody 
 for contempt, he was ordered to be discharged from prison, on his 
 own motion, supported by affidavit proving these facts.'- 
 
 It is to be observed, that the Court will not permit the I'egu- 
 larity of its process to be decided upon by any other ti'ibunal; and 
 therefore, in Frowd v. Lawrence^ where a defendant, who had 
 been taken into custody upon an attachment Avhich was irregularly 
 issued, obtained an order to discharge the attachment with costs, 
 and afterwards commenced an action against the plaintiff and the 
 sheriff, for false imprisonment, and another action against the 
 plaintiff for maliciously suing out the attachment : Lord Eldon, 
 upon the authority of Bailey v. Decereux.,^ and 3Iay v. Ilook,^ 
 made an order for an injunction to restrain the defendant from 
 proceeding with his actions at Law. His Lordship, however, held 
 that, by such an injunction, the Court does not intend that the 
 persons concerned in issuing the attachment are not to make the 
 party satisfaction ; but only that it should not be done by an 
 action at Law : because " it is impossible, from the nature of the 
 thing, that they can try the regularity of an attachment in a Court 
 of Law;" and he, therefore, ordered, that the injunction should 
 be without prejudice to any a})i)lication that the defendant might 
 be advised to make for comi^ensation, or for the costs at Law. 
 The same principle was afterwards acted upon by Lord Lyndhurst, 
 in £x parte Clarke.^ It seems, however, that leave will be given 
 to y>riiig an action for the damages suffered by the irregular pro- 
 cess, if the Court considers that the question can be better adjudi- 
 cated upon at Law.'' 
 
 It is to be remarked that, in James v. Phihps,^ where the 
 irregularity in the process had been occasioned by one of the 
 Kcgistrars of the Court not entering the attachment, although he 
 or his agent liad received the usual fee for so doing, the Court 
 ordered the Master to tax the defendant's costs out of pocket, and 
 directed that they should be j)aid l)y the plaintiff, who was report- 
 ed to have Ix-en guilty of the irregularity, but that they should be 
 )i,iid over to tlic plHUiLitl" by tin; Registrar; .irtci- this the Ri'gistrar 
 
 Ch. X. § 4. 
 
 Sole defend- 
 ant in cus- 
 tody lor 
 contempt, 
 discharged 
 on sole plain- 
 tiff's death. 
 
 Injunction to 
 restrain 
 action at law, 
 upon con- 
 tempts 
 irregularly 
 issued. 
 
 Defendant's 
 costs out of 
 pncket, of 
 attachment 
 irregularly 
 issu.'d 
 
 til rough neg- 
 ligence of a 
 puMic olHccr, 
 directed to bo 
 paid l)v 
 plaintilf, and 
 
 roll 1 
 
 ■2 'rtrrell ». Soucli, 4 Hare, 535. 
 8 1 .1. & VV. 6.05. 
 
 * 1 Venn. 269; 1 J. & W. 6G0, n. 
 
 6 Cited 2 Dick. 619; reported 1 .1. & 
 W. 66;{, n. 
 
 * 1 k. & M. 063, 570; iind see .Moore v. 
 Monro, 25 lioav. H; 4 .lur. N. .S. 250; 
 Walker v. .Mirkli-tliwait, 1 Dr. & S. V.l; 
 see also Arrowsmith v. Hill, 2 Phil. tiO'J, 
 
 612; Ex parte, Van .S:indau, 1 Phil. 445, 
 44H, n.; l» .lur. l'J3. 
 
 7 WliitelieMd V. Lvncs, 11 .lur. N. S. 74; 
 13 VV. k. ;i06, M. k"; .14 \Wi\\. 101; and 
 on iippeiij, 12 L. I'. N. S. 332, L. C. 
 
 8 2 P. VVni8. 667. As to the rosponsi- 
 bilify of public officers, see Tobin v. The 
 Queen, 16 C. U. N. S. 310; 10 .lur. N. S. 
 
 iu2y.
 
 512 
 
 COMPELLING ANSWER. — PROCEEDINGS IN DEFAULT. 
 
 On. X. § 4. 
 
 Motion to 
 disohiiTfje 
 process tor 
 irrcfjuhirity, 
 must bo made 
 before com- 
 pliance. 
 
 But where 
 before, or for 
 ■want of, ap- 
 pearance, the 
 defendant 
 must enter 
 conditional 
 appearance. 
 
 Appearance 
 will not cure' 
 defect in 
 former pro- 
 cess. 
 
 (liod, aiiil tlio costs liaviiii:; Iuhmi taxctl at £58, tlic matter came on 
 a<2:Miu upon |n'tllioii, when the Court beino; of 0[)ini()ii tliat, as the 
 Iveyistrar hail lei-eived liis li'e, his t)mittitig to enter the attach- 
 ment was a breaeli of contract, and not a mere personal neglect, 
 nKule an order for payment, by the administratrix, out of the 
 Registrar's assets; and there being no one in Court to admit assets 
 for her, it was ordered that she shouUl be examined as to assets. 
 
 If a party wishes to discharge a ]>rocess for irregularity, lie tuust 
 make his application before he complies with it : otherwise, he will 
 be considered as waiving the irregularity.^ Thus, where a de- 
 fendant has been taken upon process of contempt for non-appear- 
 ance, he must not enter his appearance in the ordinary way : 
 otherwise, his appearance will cure the defect ; he must, however, 
 submit himself to the jurisdiction of the Court, in such a manner 
 that, if his objection is held invalid, the pLuntiiF shall not be de- 
 prived of the benefit of his process.^ The Court, therefore, before 
 tlie Orders of August, 1841, required the defendant, before moving 
 to discliarge the attachment, to enter a conditional ap}»earance 
 with the Ilegistrar : " the effect of which was, to enable the plain- 
 tiff, in case the Court should decide that the process had been 
 regularly issued, to send the Sergeant-at-Arms at once, without 
 any intervening proceeding ; but the 7th of those Orders * pro- 
 vided, that no order should thereafter be made for the Sergeant-at- 
 Arms to take the body of a defendant, to compel a])i)earance. 
 Accordingly, in the case of Price v. Webb,^ Sir James Wigram 
 V. C. directed, that the order for liberty to enter the conditional 
 appearance should be made, upon the consent of the defendant to 
 submit to any process which the Court might direct to be issued 
 against him, for want of appearance, in case the subpoena should 
 not be set aside for irregularity. 
 
 It is to be observed, that a subsequent appearance by a party 
 cannot be construed to have a relation back, so as to bring him 
 into contempt for disobeying a writ or other process issued before 
 his waiver of the informality had made the process valid against 
 him ; and therefore, where an attachment was issued against 
 a defendant for non-appearance to a subpcena^ which had been 
 issued against him, and in which he was described by a wrong 
 name, it was held, by the Court of Exchequer, that his appearance 
 for the purpose of discharging the attachment would not relate 
 back, so as to cure tlie defect in the subpoena, and bring him into 
 contempt for not appearing in time.® 
 
 1 Anon., 3 Atk. 567; Fl'iyd v. Nangle, ^ Davidson t'. Marchioness of Hastings, 
 ib. 569; Bound v. Wells, 3 Mad. 434 ; Rob- 2 Keen, 509. 
 
 insoii V. Nash, 1 Aiist. 76. * Now Ord. X. 10. 
 
 2 For tlie manner in wiiich a conditional 6 2H:ire, 511; and .seeBraithwaite'sPr. 
 appearance is enti-red, see pusi, p. 536; 321, ^nd past, p. 53G. 
 
 and see Seton, 1249. B Robinson v. Nash, 1 Anst. 76.
 
 PROCESS BY TRAVERSING ANSAVER, OR TRAVERSING NOTE. 513 
 
 It should be noticed also, that the principle of waiver applies Ch. X. § 5. 
 only to an irregular, and not to an erroneous order ; and therefore, " m ' 
 where an order had been made that service upon the attorney Waiver 
 should be good service, and service was accordingly effected upon fr^g^iiar" but 
 the attorney, who thereupon entered an appearance, but it was |^^-'j.^^|^"g^°g 
 found, afterwards, that the affidavit upon which the order for sub- order. 
 stituted service had been made was insufficient, whereupon the 
 defendant moved to set aside that order and all the subsequent 
 proceedings : Sir John Leach V. C. made the order, on the ground 
 that the original order was eiToneous, and not in-egular ; and that, 
 being erroneous, the defect was not cured by the subsequent 
 appearance of the party.^ 
 
 Section V. — Process by Filing a Traversing Answer, or 
 Traversing Note?" 
 
 Having considered the various means which the practice of the j^ ^^at cases 
 Court affords, for the purpose of compelling an answer from the {iJf.'^^J^'y^^^^, 
 defendant,- it remains to state particular cases in which the plaintiff ckfciidaut, or 
 may himself, if he thinks fit, file an answer for a defiiulting defend- Jj^tg'""''"^ 
 ant, or a "Traversing Xote," which has the effect of an answer. 
 
 Where the defendant is not required to, and does not answer. Traverse by 
 the plaintiff's bill, he is to be considered to have traversed the statute, 
 case made by the bill ;^ it is only in those cases, therefore, in which 
 the defendant has been required to answer, and is in default, that 
 the plaintiff can file an answer for hini, or a traversing note.* 
 
 By the 11 Geo. IV. and 1 Will. IV. c. 36, § 15, rule 11, it is Answer by 
 enacted. " That in every case where the defendant has been plaintiff for 
 brought to the bar of the Court, to answer his contempt lor not under ii Geo. 
 answering, and shall refuse or neglect to answer within the next J^. & l Will, 
 twenty-one days, the plaintiff shall be at liberty, with the leave § 15, r. 11. 
 of the Court, upon ten days' previous notice to the defendant,^ 
 after the expiration of such twenty-one days, unless good cause be 
 shown to the contrary, instead of j)roceeding to have the bill 
 taken />rc» confcsso, to })Ut in such an answer to the bill as lierein- 
 after is mentioned, in the name of tlic defendant, without oath or 
 signature ; and thereupon the suit shall proceed, in the same man- 
 ner as if such answer were really the answer of the defendant, 
 
 1 L(!vi I'. Ward, 1 S. & S. ."iSt; see sec /X)»f, p. 610; but not on bill and an.swcr. 
 Wliittiiih't'm (•. Kdwitr.lN3 l)e G.& .1. 243. Bruithw.iite's I'r. 70. 
 
 2 >Sie Stump V. buiittv, « Dana, 14; * Heatli v. Lewis, 17 Jur. 1090, M. K. ; 
 Chdfs V. Boon. 3 U. M<.n."(52. Ord. XVII. 1; &\\<1 post, Chiip. XXI.,iff;>- 
 
 8 15 & 16 Vic. c. «6, § 26. Issue is* to be liaUion. 
 joined in such case, b.v filinf; rc'iilic^itioii. * For form of order, sec Seton, 1264, 
 
 t)rd. X Vli. 1 ; or tlic caune may be set No. 13; and for form of notice of motion, 
 down to be heard on motion lor decree, see Vol. Hi. 
 YOU I. 33
 
 514 
 
 COMPELLING ANSWER. — PROCEEDINGS IN DEFAULT. 
 
 Cu. X. § r.. 
 
 Evidence in 
 support of 
 motion tor 
 leave to tile. 
 
 Traversing 
 note : 
 
 to ori£cinal, or 
 supplemental 
 bill; or hill 
 amended be- 
 fore answer; 
 
 to amended 
 bill, after 
 answer; 
 
 after excep- 
 tions. 
 
 Effect of the 
 note. 
 
 Service of 
 copy. 
 
 with wliicli tlio j)l:iiiititV was satisfied ; and the costs of the con- 
 teinjit, and ot" putting in such answer, may be provided for in like 
 manner as if the defendant liimself had put in such answer; and 
 such answer, besides the formal })arts tltereof, sliall be to tlie fol- 
 lowing ertoct : that the defendant h-aves the plaintiH' to make sudi 
 proofs of the several matters in the bill alleged, as he shall be able, 
 or be advised, and submits liis interests to the Court." 
 
 The aj>])lication must be su])ported by production of th(j con- 
 tempt orders, tlie kcepL'i"'s certificate of the defendant being in 
 custody, the Ivecord and Writ Clerk's certificate of no answer 
 having been filed, and an affidavit of service of the notice of motion. 
 
 The practice under this rule is not of so much importance as it 
 was formerly ; because tlie plaintiflT has now a remedy of a similar 
 kind, though more generally applicable : for after the expiration 
 of the time allowed to a defendant to })lead, answer, or demur (not 
 demurring alone) to any original or supplemental bill, or bill 
 amended before answer, which he has been required to answer, if 
 sucli defendant has not filed any })lea, answer, or demurrer, the 
 plaintiff may file a note at the Record and Writ Clerks' Office, to 
 the following effect : " The plaintiff intends to proceed with his 
 cause, as if the defendant had filed an answer, traversing the case 
 made by the bill." ^ In the case of a bill amended after answer, 
 upon the like deflxult, he may file a note to the folloAving effect: 
 " The plaintiff intends to proceed with his cause, as if the defend- 
 ant had filed an answer, traversing the allegations introduced into 
 tlie bill by amendment." ^ And, after the expiration of the time 
 allowed to a defendant to put in his further answer to any bill, 
 the plaintiff (if such defendant shall not have put in any further 
 answer) may file a note to the following effect : " The plaintiff 
 intends to proceed with his cause as if the defendant had filed a 
 further ansAver, traversing the allegations in the bill whereon the 
 exceptions are founded." ^ 
 
 When a co])y of the traversing note has been duly served, it has 
 the same efiect " as if the defendant against whom such note 
 is filed had filed a full answer or further answer, traversing the 
 whole bill, or those parts of the bill to which the note relates, on 
 the day on which the note was filed." ^ 
 
 When a traversing note has been filed, a copy thereof must be 
 served upon the defendant against whom the same is filed, in the 
 manner directed for the service of documents not requiring per- 
 sonal service.^ 
 
 1 Ord. XIII. 1. 
 
 2 Ord. XIII. 2. 
 2 Ord. XIII. 3. 
 
 ■* Ord. XIII. C; but it has not the same 
 effect, for the purpose of evidence, as an 
 
 answer on oath. Martin v. Norman, 2 
 Hare, .096, r/.iS. 
 
 6 Ord. XIII. 5; III. 4,0, ante, pp.454, 
 455. No time is limited within which the 
 note is to be served ; but it is in practice
 
 PROCESS Br TRAVERSING ANSWER. OR TRAVERSING NOTE. 
 
 515 
 
 service. 
 
 Service 
 ex jur. not 
 permitted. 
 
 The rule last referred to applies only to cases where the defend- Cn. X. § 5. 
 ant has appeared by a solicitor, or personally ; and not to cases 
 where the plaintift' has entered an appearance for him.^ It has 
 been held, however, that in such a case the Court can, under its 
 general jurisdiction, make a special order for service of the trav- 
 ersing note on the defendant.^ 
 
 The api)lication should be made ex parte ; and be supported by Evidence in 
 
 an affidavit of service of the bill and interrogatories, and by the support of 
 
 ^ "^ application. 
 
 Record and Writ Clerk's certificate that the plaintifl has appeared 
 for the defendant, and has filed the traversing note. It seems 
 usual, though not essential, to prove by affidavit that the defendant 
 is within the jurisdiction.^ 
 
 In a proper case, the Court will order substituted service of the Substituted 
 traversing note,* on application by exjyarte motion, supported by 
 the affidavit and certificates above mentioned;^ but leave to serve 
 the note on a defendant out of the jurisdiction will not be given.^ 
 
 A traversing note is to be intituled in the cause,'' and written Form. 
 on paper of the same description and size as that on which bills 
 are printed,* ~ It must be underwritten or indorsed with the name 
 and place of business of the plaintiflT's solicitor, and of his agent, 
 if any, or with the name and place of residence of the plaintiff, 
 where he acts in person ; and, in either case, with the address for 
 service, if any.^ The names of several defendants may be included 
 in one traversing note, notwithstanding that they have appeared 
 by separate solicitors.^*^ 
 
 After service of a copy of the traversing note, the defendant Defendant 
 cannot plead, answer, or demur to the bill, or put in any further ^^^""'^afte'jf'^*^' 
 answer thereto, without the special leave of the Court ; and the service, with- 
 cause is to stand in the same situation as if such defendant had ""' ^^^^' 
 filed a full answer or further answer to the bill, on the day on 
 which the note was filiMl.'^ 
 
 Where the plaintiff fileil a traversing note, knowing that the Traversing 
 defendant's answer was swoni, though not filed, the traversing |||f{?'./|,\'![t 
 
 answer 
 sworn, 
 though not 
 filed, ordered 
 oil' tlie file. 
 
 treated, in respect of notice, as an answer, 
 and as within th.; operation of ()rd. III. 9; 
 80 tliat the cippy should, if possible, be 
 served on the day on which the note is 
 filed. Uraithwiiite's Manual, 144; Vcal'.s 
 Pr. 24. 
 
 1 Anon, 11 Jur. 28, L. C; Braith- 
 waite's I'r. 08. 
 
 2 Mo-« r. Buckley, 2 Phil. 628; 12 Jur. 
 487; and for the oriler in that case, see 
 Seton, 1246, No. 10; an'l see Laurie v. 
 Bum, G lliirc, 308; 12 Jur. 5'j8; Horlock 
 «. Wilson, 12 Bcav. 'A^:-)-, see also Scott w. 
 Wheeler, l.'i I'.eav. -IV:). 
 
 " For forms of motion pip'-r and affi- 
 davit, see Vol. III. 
 
 4 Willis V. Darby, 6 Hare, 618; Scott v. 
 Wheeler, vh\ sup ; Hunt v. Niblett, 25 
 Bcav. 124; 4 .)ur. N. S. 444. 
 
 6 For forms of motion paper and alR- 
 diivit, see Vol. III. 
 
 6 Anderson v. Stiither, 11 .lur. 9G, V. C. 
 K. H 
 
 ■^ For forms of traversing notes, see Vol. 
 III. 
 
 8 Ord. 6 Miir., 1860, r. 16. As to such 
 paper, sec Ord. IX. 3; aiile, ]>. 361. 
 
 « Ord. III. 2, 5; atile, jip. 4'.3, 4.'')4. No 
 (<•>' i-i |)ayab!e on filing a traversing note. 
 r.riilMiwaite's Fr. 67. 
 
 1" Jhi.l. 
 
 11 Ord. XIII. 7.
 
 5 10 
 
 COMrELLING ANSWER . 
 
 PROCEEDINGS IN DEFAULT. 
 
 Cu. X. 5 .V 
 
 Traversing 
 note canuot 
 be tiled 
 a {gainst 
 iiit'aut. 
 
 Married 
 woman. 
 
 Proof of ser- 
 vice of the 
 note. 
 
 Where 
 demurrer or 
 plea to whole 
 bill over- 
 ruled. 
 
 Traversing 
 note cannot 
 be taken off 
 the file 
 tx parte. 
 
 Traversing 
 note does 
 not prevent 
 motion for 
 decree. 
 
 note \v:is onleri'd to be taken ofTtlie file, upon payment of costs by 
 the .lefendant.' 
 
 Where a defendant wishes to ])ut in a])lea, answer, or demurrer, 
 or a iurtlier answer, after a traversing note has been filed, he 
 should ajtply, on motion, with notice to the plaintiff, for leave so 
 to do, and for that purpose that the note may be taken off the file. 
 The order will only be made on payment of costs by the defend- 
 ant." The application should be suj)ported by an aftidavit ex))lain- 
 ing the delay, and that the defendant is advised to put in the 
 proposed defence. 
 
 It seems that a traversing note cannot be filed in the case of an 
 infant detendant;^ but inasmuch as it is only necessary to file it, 
 in those cases in which an answer has been required, and none 
 put in, a case could scarcely now arise in practice, in which it 
 could be desired to file a traversing note against an infant de- 
 fendant : no answer being usually required in such a case. Where 
 a married woman is co-<lefendant with her husband, a traversing 
 note cannot be filed against her separately, unless an order for her 
 to answer separately has been obtained. 
 
 Due service of the traversing note must be proved against the 
 defendant at the hearing, if he does not appear.* 
 
 Where a demurrer or plea to the whole bill is overruled, the 
 plaintiff, if he does not require an answer, may immediately file 
 his note, in manner above pointed out, as the case may require, 
 and with the same effect: unless the Court, upon overruling such 
 demurrer or plea, gives time to the defendant to plead, answer, or 
 demur ; and in such case, if the defendant does not file any jjlea, 
 answer, or demurrer, within the time so allowed by the Court, the 
 plaintiff, if he does not then require an answer, may, on the expira- 
 tion of such time, file such note.^ 
 
 When a traversing note has once been filed, the plaintiff cannot, 
 without notice to the parties afiected by it, obtain an order to 
 take it off the file.^ 
 
 The filing of a traversing note docs not prevent a cause being 
 heard on motion for decree ; but, for that purpose, the traversing 
 note is equivalent to an answer.' 
 
 1 Rigbv V. Rigbv, 6 I5eav. 265. 
 
 2 Towne V. liunnin, 1 I)e G. & S. 128; 
 11 Jur. 2(il. For form of notice of motion, 
 fee Vol. III. 
 
 8 Emery f. Newson, 10 Sim. 564. 
 
 * Evans v. Willinms, 6 Beav. 118; and 
 see Reg. Regul. 16 March, 1860, r. 25. 
 For form of afli'lavit of service of a trav- 
 ersing note, see Vol. III. 
 
 6 Ord. XIII. 4. 
 
 G Simmons v. Wood, 5 Beav. 390. For 
 form of notice of motion in such case, see 
 Vol. III. 
 
 ■? Maiiiere v. Leicester, 5 De G., M. & 
 G. 75; 18 Jur. 320. As to motions to dis- 
 miss for want of prosecution, where a 
 traversing note has been tiled, see Ord. 
 XXXlll. 10.
 
 CHAPTER XI. 
 
 TAKING BILLS PRO CONFESSO. 
 
 Section I. — Preliminary Order. 
 
 In preceding chapters, the reader's attention has been drawn to Nature of 
 the method which the Court adopts, to compel a refractory defend- |[.^''cwj-esfl). 
 ant to appear to, and answer the bill. By means of the process 
 there pointed out, the plaintiff may, if the defendant is not a priv- 
 ileged person, take his body as a security for his obedience ; or if 
 he be a privileged person, or manages to keep out of the way so 
 successfully as to avoid an arrest, the jilaintiff may proceed to com- 
 pel his submission, by taking from him the enjoyment of his prop- 
 erty and effects, until he submits. It is obvious, however, that in 
 a Court of Equity, where the nature of the relief to be granted 
 fi'equently depends upon the discovery to be elicited from a de- 
 fendant by his answer, the mere taking a party into custody, or 
 sequestrating his pro])erty, cannot always answer the object of 
 doing that justice to the plaintiff which it is the business of Equity 
 to secure. The Court has, therefore, adopted a method of render- 
 ing its process effectual, by treating the defendant's contumacy as 
 an admission of the jjlaiiitiff's case, and by making an order that 
 the facts of the bill shall be considered as true, and decreeing 
 against the defendant according to the equity arising upon the 
 case stated by tlic plaintiff. This j)roceeding is tcmicd, taking a 
 bill pro corifexso} 
 
 It seems that this practice is not of very ancient standing, and Not of 
 that the custom formerly was to put the plaintiff to make ])roof of gV'*i|j^,, 
 the suVjstance of his bill ; '^ but the course of taking the bill pro 
 coiifcHHo has now, for some time, been tlie established })ractice of 
 
 1 A rule for an answer whore process Corradine v. 0'(!(innor, 21 Aln. 1)73; Atlor- 
 
 has not Ix'cn rightly nerved, ami a decree noy (iciiernl r. f'arvcr, VI I red. ( N. ('. ) 'l'-\\ ; 
 
 pro nmfniui, for want of an answer, are ir- Smith f. 'rriinlde, 27 III. \Wl\ Strcliens v. 
 
 reeular. Treadwell v. Clcavclund, 3 Mc- I'.ichneli, 27 III. 444. 'Ihi! d« r<iid!Hit may, 
 
 Lean, 2f*3. in such case, without dl•murrin^,^ lake ad- 
 
 '^ Sec Uose e. WoodnifT, 4 .John. C'h. fi47, vaiitaee of any matter which would hn a 
 64f<; /Aid/, r.2G. note; I'ierson v. I)avid. 4 pood cause of demurrer. Wilson v. Water- 
 Iowa, 410; .lobnsou v. Dounell, IG lil. 1«7 ; man, U Uich. Eq. (!S. C.) 20&.
 
 518 
 
 TAKING BILLS TRO CONFESSO. 
 
 Cn. XI. 5 1. 
 
 rroliminan' 
 onler to 
 take bill 
 pro coiij'esso 
 necessary ; 
 and cause tx> 
 be set down, 
 to be heard 
 on a future 
 day. 
 
 Under the 
 statute : 
 against 
 defendant, 
 who has 
 absconded, 
 without 
 appearance ; 
 
 the Ci)ui-t.^ And this prnrtico lias boon voi-y niatorially extended 
 ami facilitated by Arts of Parliameiil and C4oiR'ral Orders of the 
 Court. Consideral)le ditlerenee formerly existed in the practice of 
 taking bills pro co7ifesso, in cases where the defendant was in cus- 
 t<»tly, and in those Avhere he was not ; but the General Orders have 
 so far assimilated the practice in the two cases, that it will be most 
 convenient to state the general rules a]i]ilicable to all cases in 
 which a bill is taken pi'O confesso: remarking any peculiarities re- 
 sulting from the particular circumstances in which a defendant may 
 be ])laced. 
 
 >Vliere a decree is intended to be sought against a defendant, 
 by taking the bill jyro confesso, an order for that ])urpose must be 
 obtained upon motion, of which notice must be given ; ^ and then 
 the cause must be set down to be heard ; ' and it cannot be heard 
 on the same day on which the order to have it taken joro confesso 
 is made.* 
 
 Where the defendant is beyond seas, or has absconded to avoid 
 being served, and it is intended to proceed to have the bill taken 
 pro confesso, without any appearance having been entered by him, 
 or on his belialf, the ])roceedings must be taken under the stat. 11 
 Geo. IV. & 1 Will. IV. c. 36, § 3.^ The mode prescribed by that Act 
 must be strictly complied with ; ^ and it seems that the Act applies 
 to all cases Avhere a party goes abroad, to avoid process.'' 
 
 It has already been observed, that the General Order, enabling 
 
 1 Hawkins v. Crook, 2 P. Wms. 556; 
 Johnson v. Desmineere, 1 Vern. 223 ; Gib- 
 S'ln V. Scerengton, ib. 247. In New Hamp- 
 shire, if tlie defendant, having received due 
 notice, sliall neglect to enter his appear- 
 ance at the return term, or shall neglect to 
 deliver to the plaintifli's solicitor his plea, 
 an'^wer, or demurrer, within two calendar 
 months after service of the bill, the bill 
 may he taken piv confesso, and a decree 
 entered accordingly, liule ItJ of Chancery 
 Practice. 38 N. H. 608. Rule 18 of the 
 Equity Rules of the United States Court, 
 provides for the entry of an order that a l)ill 
 De taken pro vonftsso on failure of the de- 
 fendant to file his plea, demurrer, or answer 
 to the bill, in the Clerk's office, on the 
 rule-day next succeeding that of entering 
 his apijenrance. 
 
 2 Ord. XXII. 1 ; 11 Geo. IV. & 1 Will. 
 IV. c. 36. §§ 3, 15; and see Collins?). Coll- 
 yer, 3 Beav. 600; Brown v. Home, 8 Beav. 
 607. For firms of order, see Seton, 1265- 
 1267, Nos. 1-7 ; and for forms of notice of 
 motion, see Vol. III. 
 
 8 See Pendleton v. I>ana. 4 Wash. C. C. 
 335; Rose v. Woodruff, 4 John. Ch. 547. 
 An order to take a h'\\\ pro conj'esso, unless 
 the defendant answers it by a da}' given, 
 cannot be anticipated, »n<\ a decree pro 
 confesso psissed in anticipation of such dav. 
 Fitzhugh V. .Mcpherson, 9 Gill & J. 52. 
 
 It is error to take a bill pro confesso 
 
 against several defendants, when process 
 has been served only upon one. Robertson 
 V. Crawford, 1 A. "K. Marsh. 449. As to 
 what service of the suhpmnn is necessary 
 before a bill can be taken as confessed, see 
 Sawver yj. Sawyer, 8 Paige, 263; Sullivant 
 V. Weaver, 10 Ohio, 275; Treadwell v. 
 Cleaveland, 3 McLean, 283. 
 
 4 Ord. XXII. 6 ; Brown v. Home, nbi 
 sup. 
 
 5 See ante, pp. 456, 457. 
 
 6 Short V. I)owner, 2 Cox, 84 ; see Baker 
 V. Keen, 4 Sim. 498, where the proceed- 
 ings are set out in detail. 
 
 ^ Mawer v. Miiwer, 1 Cox, 104 ; 1 Bro. 
 C. C. 388: Henderson v. Meggs, 2 Bro. C. 
 C. 127 ; James v. Dore, 1 Dick. 63. Rule 
 5, of the Rules for Practice in Chancery in 
 ftlassachusetts, provides for notice to de- 
 fendants in Equity suits, who reside out of 
 the (/ommonwealth, and tiie method to be 
 pursued to entitle the plaintiff in such 
 cases to obt;iin an order to have his bill 
 taken for confe.sse<i. In Miiine, where the 
 rights of 11 defendant in lOquity, who resides 
 out of the State, and has had notice of the 
 suit, but does not appear and answer, will 
 not be prej nil iced by the decree, the bill maj' 
 be tiiken ;;?•" confesso &9, \o him. Adams 
 r. Stevens, 49 Maine, 362; see Evarts v. 
 Becker, 8 Paige, 606 ; Christy v. Christy, 
 6 Paige, 170.
 
 PRELIMINARY ORDER. 519 
 
 a plaintiff to enter an appearance for an absconding defendant,^ Ch. xi. § i. 
 
 applies to the same circumstances as those provided for by the ^- — y ' 
 
 Act ; and although it seems that this order has not superseded the Practice 
 
 Act,2 it is undoubtedly the usual practice, in all cases where it is "tatute*^^ 
 
 intended to take a bill pro confesso against a defendant, to enter superseded 
 
 an appearance for him, and to proceed under the provisions of the oVder. 
 General Order. 
 
 Where any defendant, whether within or not within the juris- Defendant 
 
 diction of the Court, does not put in his answer in due time after P"*^ answer- 
 
 ' _• ing, and not 
 
 appearance entered by or for him,^ and the plaintiff is unable, with to be found, 
 due diligence,* to procure a writ of attachment, or any subsequent havTab-° 
 process for want of answer, to be executed against such defendant, scouded to 
 by reason of his being out of the jurisdiction of the Court, or be- 
 ing concealed, or for any other cause, then such defendant is, for 
 the purpose of enabling the plaintiff to obtain an order to take the 
 bill pro confesso, to be deemed to have absconded to avoid, or to 
 have refiised to obey, the process of the Court,^ And where any where he has 
 defendant who, under the last-mentioned rule, may be deemed to appeared in 
 
 person or by 
 
 have absconded to avoid, or to have reftised to obey the process of his solicitor, 
 the Court, appears in person or by his own solicitor, the plaintiff n°oti^on°[o 
 may serve upon such defendant or his solicitor a notice, that on a t^ike bill 
 day in such notice named (being not less than fourteen days after to brgiven! 
 the service of such notice), the Court will be moved that the bill 
 may be taken pro confesso against such defendant ; ^ and the 
 plaintiff must, upon the hearing of such motion, satisfy the Court 
 that such defendant ought, under the provisions of the last-men- 
 tioned rule, to be deemed to have absconded to avoid, or to have 
 refused to obey, the process of the Court ; and the Court, if so 
 satisfied, and if an answer has not been filed, may, if it so think 
 fit, order the bill to be taken p>ro confesso against such defendant, 
 either immediately, or at such time, or upon such further notice as, 
 under the circumstances of the case, the Court may think proper^ 
 
 1 Ord. X. 6; ante, p. 459. 6 Qrd. XXII. 2. 
 
 2 Wilkin V. N.iinby, 4 Hare, 470; 10 Jur. 6 p^r form of notice, see Vol. III. Short 
 735; Dresser V. Mnrton, 1 C. V. Coop. t. notice of motion allowed, where a defend- 
 Cott. 37G; Ri'c, howevi.T, Kortescue t". Hal- aiit, who hail obtMiiied further time, ve- 
 lett, S.Iur. N. S. HW; 5 W. K. 747. V. C. K. fused to put in his answer, and an 
 
 8 Where a defendant had been duly attachment tould not be executed against 
 
 nerved with the bill and interrogatories, him. Wcdderliurne v. Thomas, 10 Jur. 
 
 but did not anp'-ar or answer, and with- N. S. 92, V. ('. W. 
 
 drew himself beymd the jurisdiction, the " Or.l. XXII. 3. If a defendant, iifter 
 
 Court ordered notice to W given to him, appearing, will not answer, the bill will be 
 
 thnt unless an !in»wer was put in wiiliin taken i>ro nm/esso. Caines r. Fisher, 1 
 
 fourteen da\« from tin- service of the notice, John. (;h. 8. And where the bill is for 
 
 an appearance would be entered for him, relief only, and states sutHcient ground, 
 
 and proceedings taken to have the bill the process for contempt to compel an an- 
 
 taken pro ctm/egto. (Jrovor and Baker swer is not necessary. Caines v. I'isher, 
 
 Sewing Machine Company »'. Millard, 8 fuprn. In New Jer-ey, a decree pro cim- 
 
 Jur. N. S. Jl't. V. C. VV. feMO may be taken at iinv time after the 
 
 * Ord. XXII. 2. The .sherift's officer time limited for the defendant to i)le:id, 
 
 must swear, that he has used due diligence. answer, or d'-mur bus expired. It may 
 
 Yearsley v. Budgett, 11 Beav. 144. be taken without notice, and, of course,
 
 520 
 
 TAKING BILLS PRO CONFE8SO. 
 
 Ch.XI.§ 1. 
 
 Whoro tho 
 plaintitV hiis 
 eiitoivd an 
 sppoaraiK-e 
 for him, 
 notice to be 
 gazetted. 
 
 Interrog- 
 atories must 
 be filed. 
 
 Tlie last-mentioned rule gives the Court a discretion as to order- 
 ing a bill to be taken pro coxfesso ; and, in the e.xercise of this 
 discretion, the Court refused to make the order, where the defend- 
 ant had always been resident abroad, and had not absconded, and 
 tliere was no evidence of his refusal to obey the order of the 
 Court. 1 
 
 "Where any defendant who, under the above-mentioned rule, 
 may be deemed to have absconded to avoid, or to have refused to 
 obey, the process of the Court, has liad an apjiearance entered for 
 him by the plaintiff,^ and does not afterwards appear in person or 
 by his own solicitor, the plaintiff may cause to be inserted in the 
 London Gazette, a notice, that on a day in such notice named ' 
 (being not less than four weeks after the first insertion of such 
 notice in the London Gazette), the Court will be moved that the 
 bill may be taken pro con/esso against such defendant ; and the 
 plaintiff must, upon the hearing of such motion, satisfy the Court 
 that such defendant ought, under the provisions of the above-men- 
 tioned rule, to be deemed to have absconded to avoid, or to have 
 refused to obey, the process of the Court ; and that such notice of 
 motion has been inserted in the London Gazette, at least once in 
 every entire week, reckoned from Sunday morning to Saturday 
 evening, which shall have elapsed between the time of the first 
 insertion thereof, and the time for which the notice is given ; and 
 the Court, if so satisfied, and if an answer has not been filed, may, 
 if it so thinks fits, order the bill to be taken pro confesso against 
 such defendant, either immediately, or at such time, or upon such 
 further notice, as under the circumstances of the case the Court 
 may think proper.* 
 
 It seems that, where it is intended to take the bill pro confesso 
 under the foregoing rules, interrogatories must have been filed ; ^ 
 but where the defendant has absconded, or cannot be found, the 
 delivery may be dispensed with.^ 
 
 unless it appear that some prejudice will 
 thereby accrue to the adverse party. Oak- 
 ley V. "O'Neill, 1 Green Ch. 287; see Nes- 
 bit V. St. Patrick's Church, 1 Stockt. 
 (N. J.) 76. For form of order to take the 
 bill pro confesso in this case, see Seton, 
 1205, No. 2. 
 
 1 Zulueta V. Vinent, 15 Beav. 272; 16 
 Jur. 6.31 ; see, however, Hele v. O^le, 2 
 Hare, 623. under l.«t Order of April, 1842; 
 Sand. Ord. 190; Beav. Ord. 195. 
 
 2 Under Ord. X. 4, 6, or 7 ; see ante, 
 pp. 459, 460. 
 
 3 Which may be any day in term ; but 
 must, It is presumed, be on a seal day out 
 of term. Ch.ifTers v. Baker, 5 l)e G., M. 
 & G. 482 ; 1 Jur. N. S. 32. In Millar v. 
 Elwin, 25 Bei.v. 674; 4 .lur. N. S. 600, 
 however, it seems that the adverti-ement 
 van for a day out of term, which, at the 
 
 time the advertisement was issued, could 
 not iiave been known to be a seal day. 
 
 ^ Ord. XXII. 4. For furm of order, see 
 Seton, 1265, No. 3. Where the delendMnt 
 has a1)sconded, it must be shown that he 
 cannot be found at the time of making the 
 application. Wilkinson v. Turner, 14 W. 
 K. 813, M. K. 
 
 5 Battler v. Mathews, 19 Beav 649. 
 
 6 Anon., 4 .Jur. N. S 583, V. C. W.; S. 
 C. nom Baker v. Dean, 6 W. R. 719; But- 
 tler ?i. Mathews, 19 Beav. 549; Anthony v. 
 Cowper, 11 Jur. N. S. 73 ; 13 VV. R. '286, 
 M. i;.; 34 Beav. 77. Sometimes the filing 
 of the interrogatories has been directed to 
 be ailvertised ; see Anon., vbi svp. ; but tliis 
 does not seem to be necessary. Anthony 
 V- Cowper, ubi sup. ; Darlow w. Sinnock, 1 
 W. N. 154, V. C. K. ; S. C. uom. Dariovf 
 V. Simlock, 14 W. B. 383.
 
 PRELIMINART ORDER. 
 
 521 
 
 Where the defendant is out of the jurisdiction, it is not neces- 
 sary to issue an attachment, in order to take the bill pro confesso 
 against him under these rules.-^ 
 
 The plaintiff ha\4ng advertised, in the Gazette, his notice of 
 motion to take the bill pro confesso, may save it on the day men- 
 tioned in the advertisement, until next motion day, without men- 
 tioning such saving expressly to the Court.^ And where the 
 advertisement gave six weeks' notice, instead of four, it was held, 
 that the insertion of the advertisement for the first four of the six 
 weeks was sufficient.^ 
 
 Upon the motion, the plaintiff must show, by affidavit, that 
 proper inquiries have been made after the defendant, and the 
 means which the deponent had of kno^ving the parties, and the 
 facts to which he deposes,* and that the case is within the rules 
 above referred to.^ Thus, it must appear by affidavit ^ that inter- 
 rogatories have been filed, and also delivered where delivery is 
 necessary ; that due diligence has been used to execute the attach- 
 ment or other process for want of answer, where process has 
 issued ; '' and that notice of the motion has been served on the 
 defendant or his solicitor ; or, if not so served, the Gazettes con- 
 taining the notice must be produced.® The sheriff's return to the 
 process, if issued, is also required ; and also the Record and Writ 
 Clerk's certificate that the defendant has not put in his answer; 
 and if the plaintiff has entered an appearance for the defendant, 
 that fact should appear by the certificate.® 
 
 If the defendant puts in his answer, after service of the notice 
 of motion, but before the motion has been brought on, it may be 
 brought on for the purpose of obtaining the costs.^° 
 
 In determining the question, whether the bill should be ordered 
 to be taken pro confesso " immediately," or at some future time, or 
 upon some further notice, the Court is guided by the circumstances 
 of the case ; but, in general, it does not direct the bill to be taken 
 pro confesso immediately." 
 
 Where a cause had been set down to be heard ^^ro co7^fesso,^\\^ 
 had been struck out, in consequence of the absence of counsel, it 
 
 Ch. XI. § 1. 
 
 Attachment 
 unnecessary, 
 if defendant 
 ex jur. 
 
 Saving 
 motion. 
 
 Where exces- 
 sive time 
 notified. 
 
 Evidence in 
 support of 
 motion. 
 
 1 Biittlcr V. Mathews, 19 Beav. 549, and 
 cases tht^re referred to; Hodjison v. Uod^; 
 son, 23 Beav. 604 : Braithwait'''s I'r. 295; 
 and see Anon., 9 L. I'. N. S 674, M. K , 
 for practice whore there i.s delay between 
 the making im<l drawing; up of the order. 
 
 2 Torr V. Torr, .Ifihris. (iiJO. Where, lor 
 want ot businesH, tlie ( 'ourt did not sit on 
 the day in lerni mentioned in the notice, 
 the motion wiis permitted to be made 
 on the suceeedinf; <lav. I'ostletliwaitc v. 
 Travers, 1 N. K. 354, V. C. .S. dub. 
 
 * Millar ». Elwin, 25 Beav 674 ; 4 .Jur. 
 N. S. 600. 
 
 * Harrison v. Stewardson, 2 Hare, 533, 
 534, n.; see also Anstey v Ilobson, 2 \V. 
 It. 46, V. C. S. ; Kobson v. Earl of Devon, 
 ib. 485, V. C. S. 
 
 6 Ord. XXII. 2,3. 
 
 8 Kor form of allidavit, sec Vol. III. 
 
 7 Yearsley v. Budgett, 11 Beav. 144; 
 ante, p. 519, n. 4. 
 
 « See Seton, 1265, No9. 2, 3. 
 
 a Ibid. 
 
 •0 .*^pooner v. I'avne, 2 I)e G. & S. 439, 
 445: 12 Jur. 642. " 
 
 " fVuiiajjo V. Wiirdull, 4 Hare, 481 ; 9 
 .Jur. 1055. 
 
 Where 
 
 answer put in 
 after service 
 of notice. 
 
 Not usual to 
 take bill 
 pro confesso 
 immediately. 
 
 Cause struck 
 out, restored 
 oii:i]iplic;ilion 
 of plaiutitT 
 only.
 
 
 TAKING BILLS PRO CONFESSO. 
 
 Oil. XI. 51. 
 
 St riot IK'S: 
 rciiuiiX'J. 
 
 Amendinont 
 of bill will 
 vitiate pro 
 coiij'tsso pro- 
 ceedings ; 
 
 unless under 
 llGeo. IV. & 
 1 Will. IV. c. 
 3G, § 15, r. 10. 
 
 Against 
 defendant in 
 custody. 
 
 w.is penni(t«>(l to be restored to \\w j>:i])er, on tlic application of 
 thi' j)l:iiii(irt' iiloiio.^ 
 
 It is to bo observed, <j;eneially, that, in ])rocccding to take a bill 
 /);•(> co/if('s,t<i, the greatest care must be taken to bring the case 
 strictly within the General Orders;'^ and all formalities nmst be 
 scrupulously complied with. Thus, an advertisement in the 
 Gazette, which omitted the defendant's name as a party to the 
 cause, although the notice was addressed to him, and stated that 
 ap])licatiou would be made to have the bill taken pro confesso 
 against him, Avas held insufficient.^ 
 
 And so, after an order to take the bill pro confesso has been ob- 
 tained, the bill cannot be amended, even to the extent of correcting 
 a clerical error, without vitiating the proceedings, and rendering 
 the order useless.* If, however, a defendant, who has been 
 brought to the bar of the Court for his contempt in not answering, 
 refuses or neglects to ansAver (not being idiot, lunatic, or of un- 
 sound mind), the Court may, upon motion or petition, of which 
 due notice must be given personally to the defendant, authorize 
 the plaintiif to amend his bill without such amendment operating 
 as a discharge of the contempt, or rendering it necessary to proceed 
 with the process of contempt de novo / and after such amendment, 
 the plaintiff may proceed to take the amended bill joro confesso, in 
 the same manner as if it had not been amended.^ 
 
 We have before seen, that where a defendant is in actual custody 
 for contempt in not putting in his answer, it is incumbent upon 
 the plaintiff not to detain the defendant in prison beyond a certain 
 limited time, without bringing him to the bar of the Court.^ If, 
 however, the plaintiff determines at once to take the bill pro 
 confesso, he need not bring the defendant to the bar; but may, 
 upon the execution of an attachment for want of answer, or at 
 any time within three weeks afterwards, serve the defendant with 
 a notice of motion, to be made on some day not less than three 
 weeks after the day of such service, that the bill may be taken 
 pro confesso against him ; and the Court may thereu])on order the 
 bill to be taken pro confesso against him.'' The motion must be 
 supported by the sheriff's return to the attachment, the Record 
 and Writ Clerk's certificate that the defendant has not put in his 
 answer, and an affidavit of service of the notice of motion.** 
 
 1 Harvey o. Renon, 12 .lur. 445, V. C. 
 K. B. 
 
 2 Rattler v. Mathews, 19 Bf-av. 549. 
 
 3 .Jones V. Branilon, 3 Jur. N. S. 1146, 
 V. C. W. 
 
 * Weightman v. Powell, 2 De G. & S. 
 670; 12 .lur. 9.08. 
 
 6 11 Geo. IV. & 1 Will. IV. c. 3G, § 15, 
 r. 10; ante, pp. 425, 510. 
 
 8 Ante. pp. 490, 491. 
 
 ■? Oril XXII. 1. For form of order, see 
 Seton, 1265, No. 1; iind for form of notice 
 of motion, see Vol. III. The times of va- 
 cation Jirc reckoned in the three weeks, at 
 the expiration of which the motion may be 
 made. Kitchin v. Hughes, 11 ,Jur. N. S. 
 902; 14 W. R. 93, V. (J. K. 
 
 8 For form of affidavit, see Vol. III.
 
 PEELIMINARY ORDER. 
 
 523 
 
 As before stated,^ a sequestration is the first compulsory pro- 
 cess which issues against a peer or member of Parliament. Upon 
 the order for the issuing of the writ being made absolute, then, by 
 the original practice of the Court, if the defendant persists in his 
 contempt, an order to have the bill taken joro confesso may be 
 obtained, upon motion of course.^ In the case, however, of a 
 bill for discovery, upon the expiration of the time for answering, 
 an order nisi to take the bill pro confesso may be obtained at once, 
 where the defendant is in contempt for want of answer, without 
 any order for a writ of sequestration ; and such order yviW be made 
 absolute, unless the defendant shows good cause to the contrary, 
 as before explained.^ 
 
 In like manner, in the case of corporations aggregate, after an 
 order absolute for a sequestration has been made, the plaintiff 
 may obtain, upon motion of course, an order to take the bill pro 
 confesso against the corporation.* 
 
 Altliough no compulsory process issues against the Attorney- 
 General, we have seen that an order may be obtained, on ex parte 
 motion, for him to put in his answer, within a certain time, or 
 that the bill shall be taken pro confesso} 
 
 Where a hus}):ind and wife are defendants to a bill, the husband 
 is, as we have seen,^ liable to process for want of a joint answer, 
 unless he obtains an order to answer separately; and the bill 
 may be taken pro confesso against him, as against any other de- 
 fendant.'' Where the decree sought to be obtained affects the 
 wife's inheritance, and the husband does not answer, it seems 
 doubtful how far such a decree can be had against the wife.* 
 
 The preliminary order for taking the bill pro confesso, having 
 been obtained by one or other of these means, it remains only to 
 be oltserved, that the mere putting in an answer by the defendant, 
 will Jiot be a sufficient ground for moving to set it aside ; * and 
 where, upon that ground, a motion was made to discharge an 
 order for taking a bill pro confesso, it was refused with costs.^° 
 
 Notlivvitlistaiidiiig that, at one time, there seems to have been 
 some doubt upon tiie subject," it is now clearly settled that, for 
 
 Ch. XI. § 1. 
 
 Against 
 peers, or 
 M.Ps. ; 
 
 where bill for 
 discovery. 
 
 Against 
 corporations. 
 
 Against 
 Attorney- 
 General. 
 
 Against 
 husband 
 and wife. 
 
 Order not 
 discharged, 
 upon mere 
 putting in of 
 answer. 
 
 Upon insufH- 
 cient answer. 
 
 1 See nnle, pp. 473, 490. 
 
 2 Lord VVell<;«lcy v. Karl of Mornington, 
 cited Seton, 1256. For fonn of order, see 
 ib. No. 4: and for form of motion paper, 
 (tee Vol. III. 
 
 » Ante, p. 496; 11 Geo. IV. & 1 Will. 
 IV. c. .16, ^§ 12, 13. Forform, see Vol. III. 
 
 * Ante, p. 497; Hrlekwond v. Harvey, 8 
 Sim. 201; 2 .liir. 297; Hriiithwaite's I'r. 
 297. For form of order, see Scton, 1206, 
 No. 4; iind for form '>f motion paper, see 
 Vol. HI. 
 
 6 Anle,n 497; I'eto v. Attorney-Gener- 
 al, 1 Y. & J. 609; Groom v. Attorney- 
 
 General, 9 Sim. 325. F'or form of notice 
 of motion, see Vol. III. 
 
 6 Ante, pp. 180, 498. 
 
 7 Gee r Cottle, 3 M. & C. 180; and .see 
 Bilfon V. MenniU, 4 Sim. 17. 
 
 " Ante, p. 1K5; and see Alexander v. 
 Osborne, 11 .hir. 444, L. (J. 
 
 '•• GartiT ?). Toirance, 11 Geo. 654; Hun- 
 ter V. Kobbitis, 21 Ala. 585; James v. 
 Cresswickc, 7 Sim. 143. 
 
 1" Williams v. Thompson, 2 Hro. C. C. 
 280; 1 Cox, 413. 
 
 1' Hawkins v. Oook(!, 2 I'. Wms. 556; 2 
 Eq. Ca. Ab. 178, pi. 4.
 
 524 
 
 TAKING BILLS TUO CONFESSO. 
 
 Upon answer 
 bv husband 
 aloae. 
 
 Where 
 
 amended bill 
 not answered. 
 
 Oil. XI. §1. iho purpose of liaviug the bill taken pro confexso, an insufficient 
 answer is to be treated as no answer, and that the whole bill is 
 taken pi'o co7)fesso, in the same manner as it is where no answer 
 at all lias been put in.^ And so also, where a husband and wife 
 are defendants, and the husband puts in an answer without his 
 wife joining in it, and Avithout an order to warrant such a })roceed- 
 ing, the Court treats the answer as a nullity, and will make an 
 order for taking the bill pro confesso.'^ It has likewise been held, 
 that where, after a full answer, a bill has been amended, and the 
 amended bill is not answered, the plaintiff" is entitled to an order 
 to have the bill taken pro confesso generally : ^ and where an 
 order was made for the clerk in Court to attend with the record of 
 the bill, in order to have it taken pro confesso, as to the amend- 
 ments only. Lord Apsley discharged the order: being of opinion, 
 that the original and amended bills were one record, and that 
 the amendments not being answered, the record was not an- 
 swered.* 
 
 If the plaintiff" receives the costs of the contempt, or accej)ts the 
 answer, by taking a copy of it or otherwise, or takes excei)tions to 
 it, he will waive the process ; the reason of which is, that he 
 cannot, after an answer is actually filed, have a decree pro con- 
 fesso without, in the first instance, moving to take the answer 
 off" the file, which he cannot do after any of the above-men- 
 tioned acts.^ 
 
 But although the mere gratuitously putting in an answer will 
 not be sufficient to discharge the order for taking a bill pro con- 
 fesso, yet, wherever an order of this nature has been made, and 
 the defendant comes in upon any reasonable ground of indulgence, 
 and pays the costs, the Court will attend to his application, unless 
 the delay has been extravagantly long.® It is not, however, a 
 
 How process 
 waived. 
 
 Upon what 
 terms order 
 discharged. 
 
 1 Davis V. Davis, 2 Atk. 24 ; Turner v. 
 Turner, cited 4 Ves. 619; Dangertield v. 
 Claiborne, 3 Hen. & M. 17 ; Caines v. 
 l'"isber, 1 John. €h. 8; Clason v. Morris, 10 
 John. 524 ; Buckingham v. Peddicord, 2 
 Bland, 447; Mayer v. Tyson, 1 liland, 5G0. 
 A bill, answered in part only, may lie 
 taken as confessed in other parts not an- 
 swered. Weaver v. Livingston, Hopk. 
 493; Pegg v. Davis, 2 Bhickf. 184. 
 
 2 Bilton r. Bennett, 4 Sim. 17; Leavitt 
 «. Cruger, 1 Paige, 421; see New York 
 Chem. Co. v. Flowers, 6 Paige, 654; Col- 
 lard V. Smith. 2 lieasley (N. J.), 4.3, 45; 
 Allen ». Smith, ib. 45; antt, 182. Where 
 a joint answer l)y husband and wife is put 
 in, it must be sworn to by both. If not so 
 sworii to, and no valid defence is set up 
 therein, it will, on motion, be taken off the 
 files for irregularity, and the bill be taken 
 as confessed. New York Chem Co. v. 
 Flowers, 6 Paige, 654; Collard v. Smith, 2 
 Beasley (N. J.), 43. So where an answer 
 
 is not signed by the deft^ndant, although 
 an an.swer on oath is waived. Dennison v. 
 Bassford, 7 Paige, 370. 
 
 3 Jopling V. Stuart, 4 Ves. 619; Trust & 
 Fire Ins. Co. v Jenkins, 8 Paige, 589. 
 
 4 B;icon V. Grilhth, 4 Ves. 619, n. 
 
 5 Sidgier v. Tyte, 11 Ves. 202; Coyle v. 
 Alleyne, 16 Beav. 548. 
 
 6 Williams v. Thompson, 2 Bro. C. C. 
 280; 1 Cox, 413 ; see Robertson v. Miller, 
 2 Green Ch. 451, 453, 454; Wooster v. 
 Wooilhull. 1 John. Ch. 541 ; Parker v. 
 Grant, 1 John. Ch. 630; Emery v. Down- 
 ing, 2 Beasley (N. J.), 59 ; Oram v. Den- 
 nison, 2 Bea.sley (N. .!.), 438. But even 
 after a decree pro cimfesso, order of refer- 
 ence, and report of Master, the decree will 
 be opened, and tlie defendant let in to an- 
 swer, if the e(iuity of the cMse requires such 
 relaxati ^n of the rnles of the Court. Wil- 
 liamson V Sykes, 5 Beasley (N. J.), 182. 
 
 By the practice in New Jerse_v, the de- 
 fendant's application for this purpose, may
 
 HEARING, DECREE, AND SUBSEQUENT PROCEEDINGS. 
 
 525 
 
 matter of course to discharge the order for taking the bill pro con- Ch. XI. § 2. 
 
 fesso ; and the Court, before doing so, will require to see the " > ' 
 
 ansAver proposed to be put in, in order that it may form a judg- 
 ment as to the propriety of it, and will not put the plaintiff to the 
 peril of having just such an answer as the defendant shall think 
 proper to give.^ 
 
 If a defendant is in custody for want of his answer, and is Submission 
 willing to submit to have the bill taken pro confesso against him, ^j. J„ ^,?^"^ 
 he may apply to the Court, upon motion with notice to be served confesso. 
 on the plaintiff,^ to be discharged out of custody ; and there- 
 upon the Court may order the bill to be taken pro confesso against 
 such defendant, and may order him to be discharged out of cus- 
 tody upon such terras as appear to be just : unless it appears from 
 the nature of the plaintiff's case, or otherwise to the satisfaction of 
 the Court, that justice cannot be done to the plaintiff without 
 discovery, or further discovery, from such defendant.^ 
 
 Section II. — Hearing., Decree., and Subsequent Proceedings. 
 
 The preliminary order having 
 for investigation is the manner 
 the decree perfected.* 
 
 be made either by petition properly veri- 
 fied, or upon motion sustained by afiidavit. 
 Tlie former mode is more usual and I'oimal, 
 but either may be resorted to. Emer^- v. 
 Downing, '2, Beasley (N. J.), 60. 
 
 1 Hearne f. Ogilvie, 11 Ves. 77; Emery 
 V. Dowiiin;;. 2 Beasley (N. J.), 59. A de- 
 cree pro confesso will not be set iiside to 
 allow a plea to be filed. Bank of St. Mary 
 V. St. John, 25 Ala. 566. 
 
 2 For form of notice of motion, see Vol. 
 III. 
 
 8 Ord. XXII. 5; see also 11 Geo. IV. & 
 1 W'iii. IV. c. 36, § 15, r. 12; and for a 
 ca.«e where the Court thought that justice 
 required that discovery should be obtained 
 from the defendant, see Maitlund v. Kodger, 
 14 ^in^. 'J2; b Jur. 371. 
 
 * Under IHtli Equity Rule of the United 
 States Courts, iifler an order that the bill 
 be taken pro cvfcss'i, the cause proceeds 
 ex p'lile, and the matti-r of the bill may be 
 decreed by the Court at the next enduing 
 term thereof accordingly, if the same cau 
 be ilone wilhnut an answer, and i.s pniper 
 to be decreed; nr the plaintilf, if h'; re- 
 quires Hn_v discovery or answer to enable 
 him to obtain a jiroper decree, sliiill be en- 
 titled to pri cess of iittaclimcni again'^t the 
 dcit'ndaiit, to compel un aiikwei' ; and the de- 
 fendant shall not, when jirrested upon such 
 process, be discharged therefrom, unle-s, 
 upon filing his answer, or otherwise com- 
 plyirig witli such orler, as the Court or a 
 judge thereof may direct, as to pleading 
 
 been obtained, the next subject Hearing of 
 in which the cause is heard, and '^^"®®" 
 
 to, or fully answering the bill, within a 
 period to be fixed by the Court or judge 
 and undertaking to speed the same. 
 
 The bill being taken /j?'0 twj/esso against 
 a defendant does not preclude him from 
 disputing the amount of the plaintifTs 
 demand in the Master's office. Clayton v. 
 Chichester, Craw. & Dix, 73; Pendleton 
 V. Evans, 4 Wash. C. C. 3<J1. But the 
 plaintiff is not in such case bound to prove 
 the contract stilted in the liill. Douglass «. 
 pA-ans, 1 Tenii. 18. The allegations in 
 the bill are thereby impliedly admitted, 
 and tlie Court may decree thereupon. 
 Baltzel V. Hall, 1 I.itt. S8, Attorney- 
 General t'. Carver, 12 Ired. 231 ; Harmon 
 V. Campbell, 30 III. 25. Hut the neglect 
 of 11 defendant to answer a bill, upon which 
 a decree j)ro covfesso is passcii, amounts to 
 an admis-ion only ol the allegations in the 
 bill. Robinson v. Townsend, 3 (iill & J. 
 413. Il the charge in the bill be not stated 
 with suflicieiit certainly, the plaint ff can- 
 not, even after a decree pro confesso, have 
 a final decree, unless he establish his de- 
 mand by satisfactory evidence. Pegg v. 
 Davis, 2"BlMckf. 2M"; see I'latt ;•. .ludson, 
 3 Bl.-ckl. 237; Atkins v. Faulkner, 11 
 Iowa (3 With.), 326. So ujirm a bill taken 
 pro Cdifisso, and an order of n'fereiice 
 thereupon to a Master, such allegations of 
 the bill as are distinct and (losilive arc to 
 be taken as true, without proof. But not 
 such as are indefinite. Willianis f. Cor- 
 win, llopk. 471; Piatt v. Judson, 3 Blackf.
 
 526 
 
 TAKING BILLS TRO CONFESSO. 
 
 Cn. XI. §•:. 
 
 Bill may be 
 read from 
 authenticated 
 copy, without 
 Kecord and 
 Writ Clerk's 
 attendance. 
 
 A (lofondnnt, ngninst whom an order to take a bill pro confesso 
 is made, is at liberty to a])j)car at the hearing of the cause; and 
 it' 1k' waives all objection to the order, but not otherwise, he may 
 be heard to argue the case upon the merits, as stated in the bill.^ 
 
 At the hearing ot" the cause, the Court, upon reading the bill, 
 and taking it to be true, will make such decree as seems just;^ 
 and in the case of any defendant Avho has appeared at the hearing, 
 and waived all objection to the order to take the bill ^>ro confesso, 
 or against whom the order has been made after ai)]>earance by him- 
 self or his own solicitor, or uj)on notice served on him, or after the 
 execution of a writ of attachment against him, the decree is to be 
 absolute.^ 
 
 Formerly, it M-as necessary that the Record itself should actually 
 be produced and read in Court, and the Clerk of Records and 
 Writs attended in Court with the record for that purpose ; now, 
 however, the bill may be read at the hearing from a printed copy 
 (or, where amended, without a reprint, a partly written and partly 
 printed copy), stamped with a proper stamp, by one of the Clerks 
 of Records and Writs, indicating the date of the filing of such bill 
 (and of the amendment, wdien amended), without the attendance 
 of the Clerk of Records and Writs.* 
 
 235; Atkins v. Faulkner, ubi supi-n ; but 
 see Singleton v. Gale, 8 I'orter, 270; Wil- 
 kins V. Wilkins, 4 I'orter, 246, where it is 
 said, that before a decree is pionouiiced on 
 a bill pro cxmjtsso, the Court must be satis- 
 tied by sufKcient evidence, of the justice 
 of the plaintiff's demand. See also t>evert 
 V. Redwood, 9 Porter, HO. In an anony- 
 mous case, 4 Hen & M. 476, it was held, 
 that on a bill taken pi-u amj'essu, a plain- 
 tiff c.:mnot obtain a final decree with- 
 out filing his documents, and proving his 
 case; see, liowever, the quart upon this 
 point in Coleman v. L_%ne, 4 Rand. 454. 
 In Larkin v. Mann, 2 Paige, 27, it was 
 held, that if a bill be taken pro confesso, 
 the proof of the pliiintiffs title may be 
 made before a Master, on reference. But 
 if an is>ue of fact is joined in the cause, 
 the plaintiff' ma}- make the necessary proof 
 and produce the abstract of the convey- 
 ances, belbre the exiiminer. In Pendleton 
 V. Evans, 4 Wash. C. C. 391, it was held, 
 that if a bill, being for the balance of an 
 account, is taken pro cmifesso, the amount 
 must be referred to a Master. The decree 
 is always nisi. See Hobertson v. Miller, 
 2 Green Ch. 461; post, 531, note. 
 
 Where a bill against heirs does not 
 allege, that an}' estate has descended, tak- 
 ing it pro confesso will not amount to a 
 confession that anv has. Carneal v. Day, 
 2 Litt. 397. 
 
 Where, to a bill against resident and 
 non-resident defendants, the resident de- 
 fendants answer, denying all the equity of 
 the bill, and it is taken pi-o confesso against 
 
 the others, without proof, no decree can be 
 taken, even against the latter. Cunning- 
 ham V. Steele, 1 Litt. 68. It a bill is taken 
 pro co7>fesso against a defendant, who is 
 absent from the State, he may, under 
 the statute of New York, come in after 
 the decree and answer and defend the 
 suit. iJavoue ». Fanning, 4 John. Ch. 199. 
 A decree is erroneous, if taken against 
 infants, by default, without proof, thuugh 
 there be a guardian ad litem. JMa^sie v. 
 Donaldson, 8 Ohio, 377; see Carneal v. 
 Stlireshley, 1 A. K. Marsh. 471; Chaflin «. 
 Kimball, 23 III. 26. For forms of decree 
 when bill is taken /;»'0 confesso, see Brown 
 V Home, 8 Beav. 610; feeton, 1128, No. 1. 
 As to sttting down the cause lor hearing, 
 me post, Chap. XXIll. 
 
 1 Ord. XXII. 7; Greaves v. Greaves, 12 
 Beav. 422; and for form of decree in ihac 
 case, see Seton, 1128, No. 2; see note above. 
 
 2 Ord. XXII. 8. The Court will only 
 make such a decree as it would have made, 
 if the defendant had appeared. Brierly 
 V. Ward, 15 Jur. 277, V. C K. B., which 
 was a foreclosure suit; see Ilaynest;. Ball, 
 4 Beav. 103; Stanley v. liond, 6 Beav. 
 421; Simmonds v. I'alles, 2 .Jo. & Lat. 489. 
 
 8 Ord. XXII. 8; Grover & Baker Sew- 
 ing Machine Company v. Millard, 8 Jur. 
 N. S. 713, V. C W. Notice of an order 
 pro confesso must be given befire final 
 decree. Wampler v. Wolfinger, 13 Md. 
 337. 
 
 4 Ord. 13 July, 1861. No fee is paya- 
 ble, on stamping the copy.
 
 HEARING, DECREE, AND SUBSEQUENT PROCEEDINGS. 
 
 527 
 
 A decree, founded on a bill taken pro confesso, is to be passed 
 and entered as other decrees ; ^ and thereupon an office copy of it 
 must (unless the Court dispenses with service thereof) be served 
 on the defendant against Avhom the order to take the bill pro C07i- 
 fesso was made, or his solicitor ; and where the decree is not abso- 
 lute,- such defendant, or his soUcitor, is to be at the same time 
 served with a notice, to the effect, that if such defendant desires 
 permission to answer the ^plaintiff's bill, and set aside the decree, 
 application for that purpose must be made to the Court Avithin the 
 time specified in the notice, or that, otherwise, such defendant will 
 be absolutely excluded from making any such application.^ 
 
 If such notice is to be served within the jurisdiction of the Court, 
 the time therein specified for such application to be made by the 
 defendant, is three weeks after service of such notice ; but where 
 such notice is to be served out of the jurisdiction of the Court, 
 such time is to be specially appointed by the Court, on the ex parte 
 application of the plaintiff.^ 
 
 In pi'onouncing the decree, the Court may, either upon the case 
 stated in the bill, or ui>on that case, and a petition presented by 
 the plaintiff for the purpose, as the case may require, order a 
 receiver of the real and personal estate of the defendant, against 
 whom the bill has been ordered to be taken pro confesso, to be 
 aj)pointed, with the usual directions, or direct a sequestration of 
 such real and personal estate to be issued, and may (if it appears 
 to be just) direct payment to be made out of such real or personal 
 estate of such sum of money, as at the hearing, or any subsequent 
 stage of the cause, the plaintiff appears to be entitled to: pro- 
 vided that, unless the decree be absolute, such payment is not to 
 be directed without security being given by the plaintiff for resti- 
 tution, in case the Court afterwards thinks fit to order restitution 
 to be made.^ But no proceeding is to be taken, and no receiver 
 a]»pointed under the decree, nor any sequestrator, under any 
 sequestration issued in ])ursuance thereof, is to take possession of, 
 or in any manner intermeddle with any part of the real or personal 
 estate of a defendant, and no other process is to issue to comi)el 
 performance of the decree, without leave of the Court, to be ob- 
 taine<l on motion, with n(jtice served on such defendant, or his 
 solicitor, unless the Court dispenses with such service." 
 
 Ch. XI. § 2. 
 
 and notice, 
 when not 
 absolute ; 
 
 time to be 
 inserted in 
 notice. 
 
 Court may, 
 at the hear- 
 ing, direct 
 
 receiver to be 
 appointed, 
 
 or seques- 
 tration, 
 
 and paj'- 
 ment ; 
 
 upon security 
 for restitu- 
 tion, if decree 
 not absolute. 
 
 But direction 
 not to be 
 acted upon 
 without 
 leave. 
 
 1 Ord. XXII. 10. 
 
 2 (Jrd. XXII. b, »iAi«u/>. Decree against 
 a bare trustee made uosolute in the first 
 iiiR'ance, iind >'ervicc on him dispen.sed 
 will>. I.eite v. Viciiii, 12 W. K. b'j7, M. H. 
 
 8 Ord. XXII. 11 ; 8ee <inle, 0'24 and note. 
 For form "f notifi!, sec Vol. III. 
 
 * tjrd. XX ll. \2. A list ol times for the 
 different colonies, and foreign count rics, 
 according to tlieir distance fium England, 
 
 is kept in the Registrar's office; and the 
 ppiper time is inserted by the Kegistrar in 
 the order, in drawing it up. I'or tbrin of 
 order, see beti n, 1130, No. I; and for 
 fiirms of motion paper, and allidavit in 
 support, see Vol. III. 
 
 6 Ord. XXII. l»; see Lett v. Riindnll, 7 
 .Jur. 107.J; Torrr Torr, .lohn. fi60. 
 
 Ord. XXII. 13. The motion, of which 
 notice is to be thus given, is not for tlio
 
 528 
 
 TAKING BILLS TllO CONFESSO. 
 
 Cii. XI.§2. 
 
 Rohcaring 
 on merits. 
 
 "Wlien decree, 
 not absolute 
 at hearing, 
 may become 
 absolute. 
 
 What suf- 
 ficient notice, 
 under Ord. 
 XXII. 11. 
 
 Application 
 to dispense 
 with service, 
 to be made 
 after expira- 
 tion of three 
 years. 
 
 Summons to 
 proceed must 
 also be 
 served. 
 
 Any dctl'iidaiit, waiving all objection to the order to take the 
 bill pro am/esso, and submitting to pay such costs as the Court 
 may direct, may, before enrolment of the decree, have the cause 
 reheard, upon the merits stated in the bill : the ])etition for rehear- 
 ing being signed by counsel, as other jjctitions for reliearing.^ 
 
 In cases where a decree is not absolute under Rule 8, the Court 
 may order the same to be made absolute, on the motion of the 
 plaintiff, made, — 
 
 1. Ailer the expiration of three weeks from the service of a copy 
 of the decree on a defendtxnt, where the decree has been served 
 within the jurisdiction. 
 
 2. After the expiration of the time limited by the notice pro- 
 vided for by llule 11, where the decree has been served without 
 the jurisdiction. 
 
 3. Ai'ter the expiration of three years from the date of the 
 decree, where a defendant has not been served with a copy 
 thereof.^ 
 
 And such order may be made, either on the first hearing of such 
 motion, or on the expiration of any further time which the Court 
 may, on the hearing of such motion, allow to the defendant for 
 presenting a petition for leave to answer the bill.^ 
 
 Where a defendant was out of the jurisdiction, service of an 
 office copy of the order, limiting the time within which he might 
 apply for leave to answer the bill, and set aside the decree, was 
 held to be a sufficient notice under the rule above referred to.* 
 
 The application to the Court, to dispense with service of the 
 decree, should be made after the expiration of the three years 
 mentioned in Rule 15.^ 
 
 Where proceedings are to be taken in Chambers under the de- 
 cree, the defendant must be served with the summons to proceed 
 upon the decree, as well as with the decree ; and no proceedings 
 ought to be taken in Chambers, until the expiration of the time 
 limited for setting aside the decree.® 
 
 appointment of a receiver (which may be 
 done under the decree, without notice), but 
 that the receiver may take posse>^sioii. 
 Dresser v. ilorton, 2 I'liil. 286; and see 
 Brown v. Home, 10 Beav. 400, wiiere leave 
 was giVen to idaintiff, under this rule, to 
 issue process ol contempt. b"<jr forms of 
 orders under this rule, see Seton, 1131, 1132, 
 Nos. 3, 4, 5 ; and lor forms of notice of motion, 
 see Vol. III. 
 
 1 Ord. XXII. 14. And see post, Chap. 
 XXXII., Jielitariiiffs and Ajjptdls. 
 
 ^ Ord. XXII. lu. This period will not 
 be di-|;ensed with. Darlow v. ISiiinock, 1 
 W. Al. 154, V. C. K. 
 
 8 For form of order, see Seton, 1130, No. 
 
 2; and for forms of motion paper, and 
 affidavit ill support, see Vol. III. 
 
 4 frilly V. Keefe, 16 Beav 83; 16 Jur. 
 442. 
 
 6 Vaughau v. Rogers, 11 Beav. 165; 
 James v. Kice, 5 De G., M. & G. 461; 1« 
 Jur. 818. It was dispensed with before 
 the expiration of the three years, however, 
 in Kemp v. Latter, 16 Jur. 770, M. li. ; 
 Beubow V. Davies, 12 Beav. 421; and see 
 hrierly v. Ward, 15 Jur. 277, V. C K. B. 
 Tliese cases are, it is conceived, overruled 
 by James v. Kice; and see Tliurgood v. 
 Cane, 11 \V. K. 297, M. K. 
 
 6 Golden V. Newton, Johns. 720; and see 
 King V. Bryant, 3 M. & C. 191, 196; 2 Jur. 
 106.
 
 HEARING, DECREE, AND SUBSEQUENT PROCEEDINGS. 
 
 529 
 
 Where the decree is not absolute under Rule 8, and has not 
 been made absolute under Rule 15, and a defendant has a case 
 upon merits not appearing in the bill, he may apply to the Court 
 by petition, stating such case, and submitting to such terms with 
 respect to costs and otherwise, as the Court may think reasonable, 
 for leave to answer the bill ; and the Court, if satisfied that such 
 case is proper to be submitted to the judgment of the Court, may, 
 if it thinks fit, and upon such terms as seem just, vacate the en- 
 rolment (if any) of the decree, andj^ermit such defendant to answer 
 the bill ; ^ and if permission be given to put in an answer, leave 
 may be given to file a separate replication to such answer ; and 
 issue may be joined, and witnesses examined, and such proceedings 
 had, as if the decree had not been made, and no proceedings against 
 such defendant had been had in the cause,^ 
 
 The rights and liabilities of any plaintiff or defendant, under a 
 decree made upon a bill taken ^>/'o co7ifesso, extend to the re})resent- 
 atives of any deceased plaiutifi" or defendant, and to any persons 
 chiiming under any person who was plaintiff" or defendant at the 
 time when the decree was pronounced ; and with reference to the 
 altered state of parties, and any new interests acquired, the Court 
 may, upon motion or petition, served in such manner, and supported 
 by such evidence as, under the circumstances of the case, the Court 
 deems sufficient, jjermit any party, or the representative of any 
 party, to file such bill, or adopt such proceedings as the nature 
 and circumstances of the case require, for the purpose of having 
 the decree (if absolute) duly executed, or for the purpose of 
 having the matter of the decree (if not absolute) duly considered, 
 an<l the rights of the parties duly ascertained and determined.* 
 
 The Act of 11 Geo. IV. & 1 Will. IV. c. 36, is not, as has been 
 before observed, repealed ; * and although the general practice is, 
 in all cases where bills are intended to be taken pro con/esso, 
 to proceed under the General Orders which have been above 
 referred to, yet, s|)ecial cases may still occur under the Act ; ^ 
 
 Ch. XI. § 2. 
 
 How far rep- 
 resentatives 
 of parties 
 bound. 
 
 Prnecdiire 
 under 11 Geo. 
 IV. & 1 WiU. 
 IV. c. 36: 
 
 is now 
 obsolete. 
 
 1 Umler the 19fh Ikjuity Rule of the 
 I'nited States Courts, when the bill is 
 taken /wo covfegso, the Court miiy proceed 
 to a decree at the next en^^uing term there- 
 of, Hnd such decree rendered shall be 
 deemed absolute, unless tlie Court sliall, 
 at the same term, set a^ide the same, or 
 enlarge the tmie for tilinR the utiswer, upon 
 cause shown ufion motion aiui iifhilavit of 
 the (Ictendant. And no such motion shall 
 be granted, unies'* up'>n the jiaynient of 
 the cost-' of the plaintiff in the suit up to 
 that time, or such part tliereof as the Court 
 ahall deem rea-i nahjc, and unless the de- 
 fendant shall unienake to file his answer 
 within such time as the Court shall 'lircct, 
 aufi HiiUmit to su'-h other terms as the 
 Court shall direct, for the purpose of speed- 
 V(»L. I. 34 
 
 ing the cause; see Wooster w. Woodhull, 
 
 1 .)ohn. Cli. 530; Parker v. Grant, IJohn 
 Ch. (i30; Williamson t'. Sykes, "2 Beasley 
 (N. ,).), 1«2; KobertsoM r. .Miller, 2 Grot n 
 Ch. 461; Emery v. downing, 2 lieasley 
 (N. J.), 5l», 60; Oram y. Oennison, 2 IJeas- 
 ley (N. J.), 238; ante, 524, note. 
 
 •■^Ord.X.KlI 10. Inlnghsy. Cainid)ell, 
 
 2 \V. H. 3%, V. C. K., which was a fore- 
 closure suit, permission was given under 
 this rule, on payni'tit of the costs of the 
 application and of the suit. 
 
 » Urd. XXIl. 17. 
 
 ■• Ante, p. 51H; Wilkin v. N'ainbv, 4 
 Hare, 47*;; 10 ,Jur. 735. 
 
 Ml Geo. IV. & 1 Wdl. IV. c. 3(5, §§3-8 
 inclusive.
 
 aao 
 
 TAKING BILLS PRO CONFESSO. 
 
 Til. XI. §2. 
 
 Stiitutorv 
 time at which 
 decree 
 becomes 
 absolute. 
 
 Statute 
 applied only 
 to cases wliere 
 defendant 
 had 
 absconded. 
 
 General 
 Order applies 
 to all cases. 
 
 Statu torj- 
 provision, as 
 to bills for 
 discovery, 
 where 
 
 defendant is 
 privileged. 
 
 but thov will ]>vol)al)ly lie so rare tlmt it is not thought desira- 
 l)lo, in the present work, to refer to the provisions of the Act in 
 detail. 
 
 It may be observed that, under the Act, a decree did not be- 
 come absolute against a defendant who was out of the realm, or 
 had absconded, and had never been served with a copy of it, until 
 the expiration of seven years from the date of the decree;^ where- 
 as, under the 15th Rule above refeiTed to, the Court may, in the 
 same case, order the decree to become absolute, after the expiration 
 of three years from the date of the decree.^ 
 
 The ])rovisions of the statute ap[)lied only to cases where the 
 defendant absconded to avoid being served with process.' In 
 cases falling within the ordinary course of the Court, unaffected 
 by the statute, a decree made, upon taking a bill pro confesso, was 
 absolute in the first instance, and no day was given for showing 
 cause against it.* 
 
 The General Order, however, applies, as we have seen,^ as well 
 to suits where the defendant absconds, as to other cases where the 
 plaintiff is enabled to have his bill taken pro confesso for want 
 of answer. It introduces, as we have seen,^ some jieculiarities 
 into the manner of proceeding under a decree obtained by the bill 
 being taken pro confesso / but, in all other respects, a decree pro 
 confesso is executed in the same manner as a decree made upon a 
 regular hearing. 
 
 With respect to bills for discovery, the General Order does not 
 make any distinction between such bills, and bills for reUef ; '' but 
 the Stat. 11 Geo. IV. & 1 Will. IV. c. 36, gives an additional facility 
 in obtaining the order to take a bill for discovery pro confesso, as 
 against a person having privilege of Parliament : for, in the case of a 
 bill for relief, no order to take the h\[\ pro confesso can be obtained 
 against a privileged defendant, until the writ of sequestration 
 has issued ; but under the 13th section of that Act, in the case of 
 a bill for discovery, the Court may, upon the application of the 
 plaintiff, as soon as the time for answering has expired, although 
 no sequestration has issued, order the bill to be taken pro confesso, 
 unless the defendant shall, within eight days after being served 
 wdth such order, show good cause to the contrary. With this 
 exception, there does not seem to be any difference between the 
 case of a bill for discovery and one for relief, so far as regards the 
 practice in obtaining an order to take the bill pro confesso ; but 
 after the preliminary order is obtained, there does not seem to be 
 
 3C, 
 
 1 11 Geo. IV. & 1 Will. IV 
 §5,8. 
 
 2 Ord. XXII. 15. 
 
 3 Ante, p. 518. 
 
 * Landoa v. Keady, 1 S. & S. 44; Ogil 
 
 vie V. Ilearne, 13 Ves. 563; Knight v. 
 Young, 2 V. & B. 184. 
 
 5 Ante, p. 518. 
 
 6 Ante, pp. 525-528. 
 
 7 See Gaines v. Fisher, 1 John. Ch. 8. 
 
 i
 
 HEARING, DECEEE, AND SUBSEQUENT PROCEEDINGS. 631 
 
 any necessity for a ftirther hearing of the cause, unless it is ren- Cn. xi. § 2. 
 dered necessary by the General Order.^ -^ y ^ 
 
 There is a case of Logan v. Grant^ before Sir Thomas Plumer Wiiether § 13 
 V. C, by the report of which it woidd appear, that he considered appjjeslfbm 
 that the 45 Geo. III. c. 124, § 5,^ which is identical in language for relief, 
 with the 13th section, just referred to, a})plied to bills for relief, as 
 well as to those for discovery, and that he made an order to take 
 a bill pro confesso, ujDon this construction of the Act. In the case 
 before him, a sequestration had issued, so that by the ordinary 
 practice of the Court, inde])endent of the statute, the plaintiff" Avas 
 entitled to haA'e his bill taken ^:?ro confesso:^ consequently, there 
 was no occasion for any decision upon the statute. The words of 
 the 13th section seem clearly applicable only to bills for discovery; 
 and this is the construction which was jiut, by Lord El don, upon 
 the 5tli section of the former Act, above mentioned.^ 
 
 After the order has been pronounced for taking a bill 2^'>'0 corb- After order, 
 fesso. the bill, or an examined copy thereof, is to be taken and bill may be 
 
 . ^^ ' . read in evi- 
 
 read, m any Couit of Law or Equity, as BAadence of the facts, dence, as an 
 matters, and things therein contained, in the same manner as if adl'ilininff 
 such facts, matters, and tilings, had been admitted to be true, by the facts: 
 the answer of the defendant put in to such bill,® and such bill, so 
 taken pro co7\fesso^ is to be received and taken in evidence of such 
 and the same facts, and on behalf of such and so many persons, as 
 the answer of the defendant to the bill could and might have been 
 read and received in evidence of, in case such ansAver had been 
 put in by the defendant thereto, and had admitted the same facts, 
 matters, and circumstances, as in such bill stated and set forth ; 
 and in like manner, every other bill of discovery taken pro cori- 
 Jhsso, under any of the provisions of the Act, is to be taken and 
 read in evidence of the facts, and matters, and things therein con- 
 tained, to the extent aforesaid.' It may be observed, that this 
 last provision for making the bill evidence, is not confined to 
 privileged defendants, l>ut it ajtplies to all cases where the bill is ji, all cases 
 taken 2>i'0 corifesso under the provisions of the Act. It does not 
 seem that there is any direct order or statute, by which a bill 
 taken pro confesso, otherwise than under the Act, is made evidence 
 against the defendant.^ 
 
 • Ord. XXM. 6. taken as miilesseil, to rcrniire proof of all 
 2 1 Mud. (i2fJ, ex relatione. or aiiv portion of tlie allfgations in the 
 8 Uepealed by 11 Geo IV. & 1 Will. IV. hill; >iMith r. Trinihic, 27 III. ir.-.J; Sicehens 
 
 c. 31), § 1. V. Hickiifll, 27 III. 444; or tlu' Court may 
 
 * Ante, p 453. take the allegations as coiifes^i;'!, mid eii- 
 ^ .loiics I'. Diivis, 17 Ves. 808. ter the dicrte without proof. Ilarinori ?-. 
 « See Maflord v. Brown, 4 I'niee. 300; Caiiipheil, .'50 111. 25. I'.ut it is opiMi to the 
 
 Atkins r. Faulkner, 11 Iowa (3 With.), 326; defciidaiit on error to show Hint the iivcr- 
 
 iiitlc, 526, note. nu.iits in tlu' hill do not jiibtity the decree. 
 
 ' 11 (;eo. IV. & 1 Will. IV. c. 36, § 14. Gault r. lIoaKland, 25 III. 20(1. 
 
 8 Sec ante, 526, note. Hut it is fliscrc- In all .'-uits for tlie lureclosure or satis- 
 
 tionary witti the Court, wliere a bill is faction of u mortgage, in New Jersey,
 
 532 
 
 TAKING BILLS PRO CONFESSO. 
 
 Ch. XI. § 2. when the plaintiff's bill sliiill be ordereil to 
 be tiiiven as conlessed, or tlie defeiKlant 
 t shall make tlefault at tlie hearing, aiul the 
 
 wliok' ninount of" the debt intended to bo 
 secured by the mortgage shall iiave become 
 due, no order of rclerence to a Master to 
 ascertain and rcjiDrt the sum due to the 
 plaintilV shall be necessary, unless specially 
 directed by the Court ; but a report by a 
 Master being made of the amount due upon 
 tlie mortgage, the same, if no cause is 
 shown to the contrary, shall be filed of 
 course, and without any motion or rule for 
 that purpose, or for confirmation, and a 
 decree made accordingly. So, in all cases, 
 where the plaintitTs bill shall be taken as 
 confessed against the mortgagor, and other 
 
 defendants claiming to be incumbrancers 
 file their answer or answers setting up said 
 incumbrances, if tlie order of |)riority shall 
 not appear, upon the face of the pleadings, 
 to be disputed by the parties, either plain- 
 tift'or defendant, and the amounts respec- 
 tively claimed as due do not appear to be 
 denied, and a report be made upon an 
 order of reference to a Master, it shall not 
 be necessarj- to enter a rule nisi to confirm 
 the report, or to set the cause down for a 
 hearing upon it; but a decree final may 
 be entered thereon, as of course, upon the 
 coming in of the Master's report. Chan- 
 cery Rules of New Jersey, 84, 86, 88; 2 
 McCarter, 631. 
 
 I
 
 CHAPTER Xn. 
 
 THE DEFENCE TO A SUIT. 
 
 In the preceding chapters, the attention of the reader has been 
 principally directed to the case on the part of the i^laintilff, the 
 method of submitting it to the Court, and the means provided by 
 the practice of the Court for compelling the defendant to submit 
 himself to its jurisdiction ; or, in case of his refusal, of depriving 
 him of the benefit of his contumacy, by giving to the plaintiff the 
 relief to which the justice of his case appears to entitle him. The 
 line of conduct to be jmrsued by a defendant, who is willing to 
 submit himself to the authority of the Court, and to abide its 
 decision upon the matter in litigation, will now be considered. 
 
 The first step to be taken by or on behalf of a defendant who 
 intends to defend the suit, is to enter an appearance within the 
 proper time, at the ofiice of the Clerks of Records and Wiits.-' 
 Unless the suit is defended by the defendant in personj this is 
 done by his solicitor. A special authority is not necessary to 
 enable a solicitor to undertake the business ; a general authority 
 to act as solicitor for his client is sufiicient : ^ although a solicitor 
 ought not to take upon himself to enter an appearance for a de- 
 fendant without some authority; and where a solicitor, without 
 any instruction, had caused an appearance to be entered for an 
 infant d(.'feiidant, tlie a])pearance was ordered to be set aside, and 
 the solicitor to pay the costs.* The retainer need not be in writ- 
 ing ; * but if it is not, and his authority is afterwards challenged, 
 the solicitor runs a risk of having to pay the costs, if he have only 
 assertion to offer against assertion.^ 
 
 The defendant will know whether or not an appearance is re- 
 quired, by the copy of tlie bill with which he is served: if it bears 
 an indorsement commanding his aj)pearance, lie must appear; but 
 if tliere is no such indorsement, his appearance is not required.® 
 
 Course to be 
 pursued, to 
 defend a suit ; 
 
 » Ord. I. 35. 
 
 2 Wriglitu. Castle, 3 Mer. 12; ante, p. 
 307. 
 
 ' Richardft v. Dadley, Rolls, sittings 
 nftfr Trinity Term, 18.37; andsecLeese v. 
 Knight, 8 .Jur. N. S. 1000; 10 W. U. 711, 
 
 V. C. K.; see Auicr. Ins. Co. v. Diidlev, 9 
 I'aijre. 496. 
 
 * Lord V Kcllett, 2 M. & K. 1. For 
 form iif retainer, see Vol. III. 
 
 6 Wiggins V. I'eppiii, 2 Heav. 403, 405. 
 
 8 See ante, p. 440, post, p. 638. 
 
 Entry of ap- 
 pearance. 
 
 General au- 
 thority to act 
 sufficient. 
 
 Authority 
 need not be 
 in writing. 
 
 Necessity for 
 appearance : 
 how indi- 
 cated.
 
 534 
 
 THE DEFENCE TO A SUIT. 
 
 Cn. XII. 
 
 Hv answer; 
 if not inter- 
 rojiatod, not 
 bouiul to au- 
 swor. 
 
 but may put 
 in a volnn- 
 tary answer. 
 
 By demurrer, 
 or plea. 
 
 Tl\o aoft'ndMnt liavinu; iippciuv.l to the bill, tlio next point, for 
 I'onsidoratiou in tho onlinai-y course of the cause is, the nature of 
 tlie defence to be put in.' It was formerly incumbent \ipon :i de- 
 fendant, \inless he pleaded or demurred to the bill, to put in an 
 answer of some description ; but now, since the Chancery Amend- 
 ment Act of 185*2, unless interrogatories are filed, and a copy of 
 them duly served on him or his solicitor, the defendant is not 
 obliged to put in an answer.=^ He may, however, put one in, if he 
 thinks fit, even though no interrogatories are served : ^ the answer 
 in such case being called voluntary.* The propriety of putting in 
 a vohmtary answer depends ui)on the cii-cumstances of each case ; 
 and, in general, where the defendant relies upon a case which does 
 not appear upon the bill, he should put in a voluntary answer. If 
 he does not do so, he will be considered to have traversed the 
 case made by the bill.^ The defendant will therefore, in general 
 have to see whether any answer is called for from him, and if not, 
 whether the circumstances of the case require that he should put 
 in a voluntary answer. 
 
 It may, however, happen fi-om some cause, either apparent upon 
 the face of the bill itself, or capable of being concisely submitted 
 to the Court, that the plaintiff is not entitled to the relief or part 
 of the relief which he has prayed : in such cases, the defendant 
 may, according as his oljijection goes to the whole or to part of the 
 relief, submit the grounds upon which he considers the plaintiff 
 not entitled to what he seeks, in a concise form to the Court, and 
 pray the judgment of the Court whether the plaintiff is entitled to 
 the relief prayed by his bill, to which the defendant objects. 
 This species of defence, if the objection appea*} upon the face of 
 the bill itself, is made by Demurrer ; " but if it depends upon any 
 matter not in the bill, it must be submitted to the Court in the 
 form of a Plea^ If the defence submitted to the Court, in cither 
 of the above forms, is admitted, or held upon argument to be good, 
 the effect of it, if it be a demurrer, is to i)ut the bill, or that part 
 of it which has been demurred to, out of Court ; or, if it be a plea, 
 to limit the matter in dispute to the question whether the point 
 raised by it be true or not : in which case, if the defendant suc- 
 ceeds in establishing the point raised by the plea, by evidence at 
 the hearing, the bill, so far as it is covered by the i)lca, will be 
 dismissed. If the demurrer or plea be held upon argument to be 
 bad, the effect of the judgment of the Court, in general, is, that 
 the defendant must defend the cause, and put in an answer to. the 
 
 1 In Massachusetts " a defence in Equity 
 shall be made by demurrer, plea, or 
 answer." Genl. Sts. c. 113, § 5; see Story 
 Eq . ?1. § 433 tl seq. 
 
 i 15 & 16 Vic. c. 86, § 12. 
 
 8 lb. § 13. 
 
 4 See forms of answers. Vol. III. 
 
 6 15 & IS Vic. c. 86, § 26. 
 
 6 See forms of demurrer, Vol. III. 
 
 7 See forms of plea, Vol. III.
 
 THE DEFENCE TO A SUIT. 535 
 
 interrogatories, if any hare been served : lie may, however, if his Ch. XII. 
 
 iirst defence has been by demurrer, be admitted, under certain * v ' 
 
 circumstances, to dispute the right of the plauitiflf to the relief 
 prayed, by means of a })lea ; or by demurrer less extensive than 
 the first. 
 
 K the defendant thinks proper to relinquish any claim he may By disclaim- 
 have to the property in question in the suit, he can do so by put- 
 ting in a species of answer called a Disclaimer ,' by which he 
 disclaims all interest in the matters in question in the suit.^ 
 
 1 See forms of disclaimer, Vol. III.
 
 CHAPTER XIII. 
 
 APPEARANCE. 
 
 Ajipearance 
 defined: 
 
 ronditional 
 appearance. 
 
 Where entry 
 of appearance 
 dispensed 
 ■vrith. 
 
 Appearance is the process by which a person, against whom a 
 suit has been commenced, submits himself to the jurisdiction of 
 the Coui-t; and he will not be permitted to take any step in the 
 cause until an appearance has been entered on his behalf.^ Even 
 if he desires to ol)ject to the regularity of the proceeding by which 
 the plaintiff has sought to compel his appeai-ance, he must first 
 enter what is called a conditional appearance.'^ Where, however, 
 a defendant had appeared by counsel at the hearing of a motion, 
 and by the order then made all further proceedings were stayed, 
 he was allowed to apply to the Court for the purpose of having 
 the order carried into effect, without having entered any appear- 
 ance.^ 
 
 1 Even if he denies the jurisdiction of 
 the Court. Folkin v. Lord llerbert, 1 Dr. 
 & Sm. 608; 8 Jur. N. S. 90. In Maine, 
 each defendant shall enter his appearance 
 on the docket on the return day. And 
 upon proof of neglect, when there has 
 been personal notice, a default maj' be en- 
 tered, the bill be taken ns confessed, and a 
 decree be entered accordingly. Rule 4, of 
 Chancer}' Practice. In Ma-sachusetts, 
 " the day of appearance shall be the return 
 day of the writ or subpana, when personal 
 service shall be made on the defendant, or 
 he shall have had personal notice of the 
 suit ; or the return day of any order issued 
 under the fourth or fifth rule, when no 
 personal service stiall be made. And, 
 if the defendant shall not appear and 
 file his answer, plea, or demurrer, within 
 one month after the day of appearance, 
 the plaintitl' may enter an order to take 
 his bill for confessed; and the matter 
 thereof may be decreed accordingly unless 
 good cause be shown to the contniry." 
 Rule 9, of the Rules of Practice in Chan- 
 cery. Bj' tlie 17th Equity Rule of the 
 United States Courts, the appearance day 
 of the defendant shall be the rule day to 
 which the mhpfrna is made returnable; 
 provided, he has been served with the pro- 
 cess twenty days before that day; other- 
 wise, his appearance day shall be the next 
 rule day succeeding the rule day when the 
 process is returnable. V>y the 16th rule, 
 " upon the return of the subpuena, as served 
 
 and executed upon any defendant, the 
 clerk shall enter the suit upon his docket 
 as pending in the Court, and shall state 
 the time of the entry." 
 
 A demurrer to the bill, signed by the 
 Attorney-Oeneral of a State, is a sufficient 
 appearance by such State, in a suit brought 
 against it. New Jersey v. New York, 
 6 Peters, 323. Where a defendant puts in 
 an answer, which is read in (^ourt, by con- 
 sent of the opposite cdunsel, and ordered 
 to be filed, and a decretal order is made 
 thereon in favor of the defendants, it is an 
 appearance on tlie records of the Court. 
 Livingston ?'. Gibbons, 4 .Jrthn. Ch. 94. 
 
 2 Antey pp. 453, 512; Robinson v. Nash, 
 1 Anst. 76; Anon., 3 Atk. 567; Floyd v. 
 Nanglc, ib. 569; Mackreth v. Nicholson, 19 
 Ves. 367; Bound v. Wells, 3 Mad. 434; 
 Davidson v. Marchioness of Hastings, 2 
 Keen, 509; Price v. Webb, 2 Hare, 511; 
 Johnson v. Barnes, 1 De G. & S. 129; 11 
 Jur. 261; Lewis v. Baldwin, 11 Beav. 154; 
 Maclean v. Dawson, 4 De G. & J. 150, 152 ; 
 5 Jur. N. S. 663; National Assurance 
 Companv v. Ciirstairs, 9 Jur. N. S. 956, 
 M. R ; fVjley I). Maillardet, 1 De G., J. & 
 S. 389; Hinde, 144; Braithwaite's Pr. 321. 
 An appearance entered with the Record 
 and Writ Clevk would waive the irregular- 
 ity. Braithwaite's Pr. 321 ; and aiite, p. 
 512. For the mode in which a conditional 
 appearance is entered, sf impost, p. 537. 
 
 3 Hetts V. Barton, 3 Jur. N. S. 154, V. 
 
 c. w.
 
 APPEARANCE. 
 
 537 
 
 An ordinary appearance is entered in the Record and Writ 
 Clerks' Office.^ For this purpose, a prcecipe (fonns of which may 
 be obtained in the office) must be filled up with the name of the 
 defendant, and underwritten with the name and place of business 
 of his solicitor, and of the agent of such solicitor, if any, or with 
 the name and place of residence of the defendant where he enters 
 the appearance in person, and, in either case, with the address for 
 sen-ice, if any ; "^ and such proecipe must be left at the seat of the 
 Record and Writ Clerk to whose division the cause is attached.^ 
 An appearance by a defendant served \\athin the jurisdiction 
 should be entered within eight days after service of the bill ; it 
 will, however, be accepted at the Record and Writ Clerks' Office 
 at any time ; and, if before decree, without order.* 
 
 A conditional appearance is entered ^vith the Registrar.^ For 
 this purpose, an order, giving leave to enter the appearance, is 
 necessary. The order is obtained on an ex parte motion or on 
 petition of course at the Rolls ; ^ but the defendant must, by his 
 counsel, consent to submit to any process which may be issued 
 against him on such appearance.'' The appearance is entered by 
 the defendant's solicitor attending at the entering seat in the Reg- 
 istrars' office, and signing an entry in the Registrars' Book. The 
 entry will be made by the entering clerk, on the order being pro- 
 duced to him.^ If the process is discharged for irregularity, the 
 order discharging the process should also discharge the a]ipearance.^ 
 
 When an appearance has been entered, notice of it must be given 
 on the same day to the plaintiff's solicitor, or to the plaintiff if he 
 acts in person,^" before two o'clock on Saturday, and seven o'clock 
 on any other day: otlierwise, the service will stand for Monday in 
 the one case, and in the other for the next day." 
 
 Where a husband and wife are defendants, the husband should, 
 
 dofendants. Repul. to Ord. Sched. 4. In 
 tliis fomputatian, husband and wife, when 
 tliev appear jointlv, are reckoned as one 
 person. Bniithwaite's Pr. 325. For forms 
 
 Ch. XIII. 
 
 Conditional 
 appearance : 
 how entered. 
 
 1 Ord. I. 3.') Bv the 17th of the Equity 
 Rules of the United States Courts, the 
 appearance of the defendatit, eitiier per- 
 sonally or by his solicitf'r, shall be entered 
 in the order book on the day thereof by 
 the clerk. 
 
 •^ Ord. II I. 2, 5. 
 
 8 Any nuinlier of defendants may be 
 included in one prceripe; and the names 
 of all the defi-nd'.infs so included must lie 
 set forth, notwitbstainlin ■' the same so- 
 licitor at)pears for all. Where u solicitor 
 who is himself a d'-fcndant, and defend* in 
 per-on, is concerned ('or((p-iieffndant«, the 
 appearance for himself must be entered un 
 a Hcparate jirifrtpe, unless he be iti the 
 »nmc interest with them. Hraithwaite'.? 
 Pr. 32.'>. The Odlowiiif; fees are pavable, 
 in Chancery fee fund stamjis, impres"edon 
 or affixed to the jtnnri/ir, on entering,' an 
 appearance. \f not mure than three de- 
 fendatits, 7«. ; if more than three, and not 
 exceeding six defemlant", 14ji. ; and the 
 game proportion for every like number of 
 
 Notice of ap- 
 pearance. 
 
 Appearance 
 by husband 
 and wife. 
 
 person. 
 
 of pracipe. see Vol. III. 
 
 i Ord. X. 3; Rr.iithwaite's Pr. .328; and 
 see Criiiiiiif; r. I'riolean, 10 .lur. N. S. 60; 
 12 W. K. 141, M. K. ; 33 IJeav. 221. For 
 the practice as to entering an appearance 
 after decree, see ante, p. 151 ; and post, p. 
 540. 
 
 6 For when a conditional appearance 
 should be entered, see nnle, pp. 463, 512, 
 537. 
 
 For f<irm of motion jiaper, see Vol. III. 
 
 T See Price t). Webb, 2 Hare, 511. 
 
 8 For forma of order and entr}-, see 
 Seton, 1249; and see ante, p. 512. 
 
 « .lohii'^on V. Barnes, 1 I)e G. & S. 129, 
 131; 11 .lur. 201. The apjiliiation to set 
 aside tlw process is madi' by motion. 
 
 1" Ord. III. 9; nule, pp.453, 454. For 
 form of U'llice, see Vol. III. 
 
 11 Ord. XXXVU. 2; ante, p. 455.
 
 538 
 
 APPEARANCE. 
 
 Cii. XIII. 
 
 Appearance 
 bv infants, 
 and persons 
 of nnsound 
 mind. 
 
 Paupers. 
 
 Appearance 
 to bill not 
 original ; 
 
 and to sup- 
 plemental 
 statement. 
 
 No appear- 
 ance neces- 
 sary to notice 
 of "decree. 
 
 Appearance 
 to revivor and 
 supplemental 
 orders ; 
 
 imdov onliiiary circumstances, n]>)>ear for both ; and ho will bo 
 liable to process of contempt for the non-appearance of his wife, as 
 well as his own.-^ The wife may, however, in all cases, without any 
 special order, enter an ap])earance for herself,'^ and, as we have 
 seen, the ]>laintirt"is entitled, in some cases, to treat her as a /erne 
 sole in tliis respect.^ 
 
 Appearances arc entered on behalf of infants, and persons of un- 
 sound mind, in their owm names, as in the case of ordinary defend- 
 ants ; but they cannot put in their answers, or take any other step 
 in the cause, until guartlians ad litem have been appointed.* 
 
 A person intending to defend a suit in fonnd pauperis^ usually 
 enters an appearance, and pays the fee, before he petitions for the 
 order to defend in forma pauperis / but upon procuring an in- 
 dorsement, by the proper officer, upon his petition, that the affidavit 
 as to poverty has been filed, he may obtain the order before he 
 enters his appearance : in which case, on i:)roduction of the order, 
 he may enter his appearance without payment of the fee.^ 
 
 An appearance to a bill not original is subject to the same regu- 
 lations as an appearance to an original bill.'^ 
 
 In the case of a supplemental statement,' sixch proceedings by 
 way of answer, evidence, and otherwise are to be taken upon it as 
 if it were embodied in a supplemental bill ; ® and, therefore, an 
 indorsement requiring appearance must be made on a supplemental 
 statement, and an appearance entered thereto.'^ 
 
 No appearance is necessary, in the case of a party served with 
 notice of a decree, under Rule 8 of the 15 & 16 Vic. c. 86, § 42." 
 
 Where an order of Revivor or supplemental order has been ob- 
 tained,^^ the practice is to require an appearance by the defendants 
 brought before the Court by such order ; but not to require any 
 new appearance by the original defendants.-^^ This practice seems 
 
 1 Where a bill is filed against husband 
 and wife, the husband is bound to enter a 
 joint appearance, and put in a joint answer 
 for both. Leavitt v. Cruder, i Paige, 421; 
 see a/i^e, 182, note, 524, note. 
 
 2 Braithwaite's Pr. 321; Rudge v. Wee- 
 don, 7 W. R. .368 (n), V. C. K. 
 
 8 See «n?c, pp. 179, 181, 445, 476. 
 
 4 Braithwaite's Pr. 322; see anfe, pp. 
 162, 177; and see Ord. VII. 3; Ord. X. 5; 
 Leese v. Knight, 8 ,Jur. N. S. 1006; 10 W. 
 R. 711, V. C. K. Infants can only appear 
 and answer by their guardian appointed 
 for that purpose. And it is erroneous to 
 proceed against them till such appoint- 
 ment. Irons V. Crist, 3 A. K- Marsh. 143 ; 
 Bradwell v. Weeks, 1 .John. Ch. 325. It 
 is irregular, after appointment of a guar- 
 dian for an infant, to take the bill pro 
 confesso against him, for want of an ap- 
 pearance or of answer. Carneal v. Sthresh- 
 fey, 1 A. K. Marsh. 471. 
 
 A party who takes a copy of a bill filed 
 
 against him as committee of a lunatic, 
 and enters his appearance without his 
 addition of committee, &c., cannot after- 
 wards, after suffering the plaintiff to go on 
 to a final decree, object that the subpcena 
 was against him iiidividuall}'-, and not as 
 committee, &c. Brasher v. Cortiandt, 2 
 John. Ch. 247. 
 
 6 1 Turn. & Ven. 512; Braithwaite's Pr. 
 322, 563. For form of petition, see Vol. III. 
 
 6 Braithwaite's Pr. 329. 
 
 7 15 & 16 Vic. c. 86, § 53. 
 
 8 Ord. XXXII. 2. 
 
 9 Braithwaite's Pr. 81, 331. 
 W /I). 323 ; ante, p. 437. 
 
 11 Under 15 & 16 Vic. c. 86, § 52; see 
 post, Chap. XXXIII. Revivor and Supple- 
 ment. 
 
 12 Braithwaite's Pr. 331, 559; Seton, 
 1171; Cross v. Thomas, 16 Beav. 592; 17 
 .Jur. 336; For.ster «. Menzies, 17 .Jnr. 657; 
 10 Hare Ap. 30; 16 Beav. 568; Ward v. 
 Cartwright, 10 Hare Ap. 73; 17 Jur. 781.
 
 • APPEARANCE. 
 
 539 
 
 scarcely consistent with the words of the Act ; ^ and its propriety- 
 has been donbted.- 
 
 Where the plaintiff amends his bill, he must, as we have seen, 
 serve the defendants with a copy of the amended bill ; but the de- 
 fendants, if they have appeared to the original bill, need not enter 
 any appearance to the amended bill : unless required so to do by 
 the indorsement on the amended bill.^ 
 
 Where a formal defendant is served with a copy of the bill under 
 the General Order,* he may appear in common form, at any time 
 within twelve days fi-om the service of the copy of the bill :^ or he 
 may, within the same time, enter a special appearance, for the 
 purpose of being served with notice of all proceedings in the suit.® 
 After the expiration of the twelve days, neither the common nor 
 special appearance can be entered, without an order for that 
 purjjose.'' 
 
 A defendant may, if he has been informed of a bill being filed 
 against him, enter an appearance, or cause an appearance to be 
 entered for him, without waiting to be served with the copy of the 
 bill. This is called appearing gratis, and is generally resorted to 
 where a plaintiff has served some only of the defendants with the 
 yjUl, and a defendant who is not served wishes to make an imme- 
 diate application to the Court in the cause.* 
 
 In BarTdey v. Lord Reay^ Sir James Wigram V. C. decided 
 that a defendant against whom it is prayed that, upon service 
 of a copy of the bill, he may be bound by the proceedings 
 in the cause, is entitled to appear gratis, either before or after 
 service. 
 
 A defendant may, hkewise, in certain cases, appear gratis at the 
 hearing, and consent to be bound by the decree;^" but where a 
 person, not a party to the suit, who was interested in a question, 
 appeared by counsel, and submitted to be bound by the decision, 
 
 1 See 15 & 16 Vic. c. f«6, § 25; but see 
 Hanbury i'. Ward, 18 Jur. 222, V. C. S. ; 
 HhII v.. Kadclitre, 2 J. & H. 765. 
 
 2 See 1 Smith's I'r. 805. 
 
 8 ( 'heesboroufjh v. Writrht, 28 Beav. 173 ; 
 Barry v. Crosskty (No. 2), 2 J. & H. 130; 
 
 8 .Jur. N. S. 114; liraitliwaitc's Pr. 328; 
 Braitliwaitft's .Manual, 159; and see antt, 
 pp 446, 533. Whore defciidaiits have not 
 an.-*wer(,-d the 'jriKinal l)ill, tmt arc called 
 upon by an amended l)ill simultaneouslj' 
 to answer both, it is not necessary to issue 
 R new snhjxr.na. Fitzhuf^h r. McPherson, 
 
 9 (iiil & .1. 1. See Cunningham v. I'ell, 
 6 I'ai^je, 655 ; Longworth v. Taylor, 614. 
 
 * (ird. X. 11. 
 
 6 Ord. X. 14, 16; wn/p, p. 432. 
 « (»rd. X. 15; ante, p. 4.32. 
 
 7 Ord. X. 16, 16; and see anU, pp. 432, 
 433, for the practice as to entering a com- 
 
 mon or special appearance, and obtaining 
 an order for leave so to do. 
 
 8 Fell V. Christ's College. 2 Bro. C. C. 
 279; Ilume tJ Babington, 1 Hog-an, 8. So 
 where the suh/ifenn is irregularly served, as 
 where it is served out of the State, the 
 defendant may voluntarily appear. Dunn 
 f. Dunn, 4 Paige, 425; see Soebor t'. Hess, 
 5 Paige, 85. Where a plaintiff neglects to 
 serve a subpmna on a (lefeiulant in a bill 
 against whom an injunction has been 
 granted affecting his rights, such defend- 
 ant may appear voluntarih', and apply to 
 dissolve the injunction, without waiting 
 for the service of the gulipmnn. Waffle v. 
 Vanderiievdon, 8 Paige, 45; see Ilowo v. 
 Willard, 40 Vt. 654. 
 
 « 2 Hare, 309. 
 
 1" Capel V. lUitler. 2 S. & S. 457, 462; 
 Sapte V. Ward, 1 Coll. 24; see form of 
 order, ib. 25 (n.); Seton, 8. 
 
 Ch. xm. 
 
 and to 
 
 amended 
 
 biUs. 
 
 Common ap- 
 pearance by 
 fonnal party; 
 
 Special 
 appearance. 
 
 Gratis 
 appearance : 
 
 when 
 resorted to ; 
 
 by a formal 
 party; 
 
 allowed at the 
 hearing, if 
 named de- 
 fendant to 
 bill; 
 
 or by consent 
 if not.
 
 540 
 
 APPEARANCE. 
 
 Ch. XIII. 
 
 Appciimni'c 
 
 artor docroc. 
 
 Appearance, 
 by mistake, 
 in defend- 
 ant's name. 
 
 Plaintiff now 
 usually ap- 
 pears "for de- 
 fendant, on 
 default. 
 
 Appearance, 
 by mistake, 
 by plaintiff 
 for defendant. 
 
 the Court held, that he could not be heard without the consent of 
 the other defendants.^ 
 
 After decree, an appearance cannot be entered by a defendant 
 except by leave of the Court, on an application by him for liberty 
 to enter such ajijiearance, and attend the proceedings : the defend- 
 ant submitting to be bound by the decree and proceedings already 
 had. Tlie a]>])lication may be made by petition of course, if the 
 plaintiff will consent; and if he will not, by motion or summons, 
 as before explained.^ 
 
 If an appearance has been entered in the name of a defendant 
 by mistake, and no proceeding has been subsequently taken, such 
 appearance may be withdrawn, at the request of the ])arty who 
 entered it, and Avith the consent of the plaintiff; but if any pro- 
 ceeding has been taken, a special order, which may be obtained 
 either on motion, with notice, or on summons at Chambers, is 
 necessary. If it is only desired to alter the name of the solicitor 
 who has entei-ed the appearance, the common order to change so- 
 licitors is sufficient.^ 
 
 If the defendant does not enter an appearance by himself or his 
 solicitor within the time limited for that purpose, the pjlaintiff may 
 enter an ap]:)earance for him ; * and as an attachment to compel 
 appearance cannot now be issued without a special order of the 
 Court, and no order -will be made for a messenger or Sergeant-at- 
 arms to take the body of a defendant for the purpose of compelling 
 his appearance,^ it has, as we have seen," become the usual practice 
 for the plaintiff to enter an appearance for the defendant, in default 
 of such appearance being entered by the defendant. 
 
 An appearance which has, by mistake, been entered by the 
 plaintiff, as if concerned for a defendant, may be withdrawn with 
 the consent of the defendant, on the request of the plaintiff's so- 
 licitor, if the application is made before the expiration of three 
 weeks from the service of the copy of the bill ; but if the defend- 
 ant will not consent, or the application is made after such three 
 weeks, an order, which may be obtained on motion with notice, or 
 on summons at Chambers, is necessary.'' 
 
 1 Bozon V. Bolland, 1 R. & M. 69 ; Attor- 
 ney-General V. Pearson, 7 Sim. 290; Dy- 
 son V. Morris, 1 Hare, 413; 6 Jur. 297; 
 Lewis V. Clewes, 10 Hare Ap. 62; see also 
 ante. p. 153. 
 
 2 Braithwaite's Pr. 323; ante, p. 153. 
 In Morgan v Day, V. C. S. in Chnmb. 3 
 Feb., 18G5, a person not a party to the suit, 
 but claiming to be interested under the 
 will of the testator, was, by consent, per- 
 mitted to enter an appearance, and defend 
 the suit, on consentiiif; to be bound by the 
 decree, and the proceedings had there- 
 under, as if she had originally been made 
 
 a defendant. For forms of petition, notice 
 of motion, and summons, see Vol. III. 
 
 3 Uraithwaite's Pr. 323, 324; Martin v. 
 Patching, ib. 338. For forms of request, 
 consent, notice of motion, and summons, 
 see Vol. III. 
 
 4 Ord. X. 3, 4, ante, pp. 460-462. 
 
 6 Ord. X. 10; Ilackwood V. Lockerby, 7 
 Pe G., M. & G. 238. 
 
 6 Ante, pp. 460-462. 
 
 7 Braithwaite's Pr. 337, 338; and Mar- 
 tin V. Patching, there cited. For forms of 
 request, con.sent, notice of motion and 
 summons, see Vol. III.
 
 APPEARANCE. 
 
 541 
 
 We have before seen, that a defendant, notwithstanding an ap- 
 pearance has been entered for him, may afterwards appear for him- 
 self in the ordinary way : but that such appearance is not to alFect 
 any proceeding duly taken, or any right acquired by the plaintiff 
 under or after the appearance entered by him, or prejudice the 
 plaintifi"'s right to be allowed the costs of the first appearance ; ^ 
 and it seems that, in practice, wherever an appearance for a de- 
 fendant has been entered by the plaintiff, such defendant must, 
 nevertheless, enter an appearance for himself, before he can be 
 allowed to defend the suit.^ 
 
 1 Ord. X. 9; ante, p. 479. 
 
 2 Ante, p. 479. In Groome v. Spome, 
 M. R. 1863, G. No. 4, a motion by a de- 
 fendant, who had not appeared to the bill, 
 and against whom the bill had been taken 
 pro conftsso, to set aside the proceedings 
 for irregularity, was permitted to proceed. 
 
 on his entering a conditional appearance 
 with the Registrar, and undertaking, by 
 his counsel, to enter an ordinary appear- 
 ance; which was afterwards entered ac- 
 cordingly, upon the Registrar's minute, 
 without any formal order. 
 
 Ch. XIII. 
 
 After appear- 
 ance has been 
 entered by 
 plaintiff for 
 defendant, 
 
 defendant 
 must appear 
 for himself 
 before he 
 takes any 
 step in the 
 cause.
 
 CHAPTER XIV. 
 
 DEMURRERS. 
 
 Section I. — The general Nature of Demurrers. 
 
 Demurrer; 
 
 •when 
 
 appropriate. 
 
 Effect on 
 right to costs, 
 of neglect to 
 demur. 
 
 Doubtftil 
 questions of 
 title not de- 
 termined on 
 demurrer. 
 
 Whenever any ground of defence is ajjparent upon the bill 
 itself, either from the matter contained in it, or from defect in its 
 frame, or in the case made by it, the approjjriate mode of defence 
 is by demurrer.^ 
 
 Demurrers are now of much less fi-equent occurrence than for- 
 merly ; the readiness with which the Court gives the plaintiff leave 
 to amend his bill rendering it inexpedient to demur, in any case, 
 where the defect in the bill can be cured by amendment ; ^ but 
 where the question raised by the bill can be properly determined 
 on demurrer, a defendant, by neglecting to demur, injures his 
 position with respect to the costs of the suit. Thus, bills dis- 
 missed at the hearing, have often been dismissed without costs, on 
 the ground that they might have been demurred to ; ^ or the 
 defendant has only been allowed the same costs as he would have 
 received if he had demurred.* The defendant is not justified in 
 neglecting to demur to the bill, because it contains charges of 
 fraud which he is desirous of answering.^ 
 
 The Court sometimes declines to decide a doubtful question of 
 title on demuiTcr : in which case, the demurrer will be overruled, 
 without prejudice to any question.® A demurrer may also be 
 
 1 Ld. Red. 107; see Tappan «. Evans, 11 
 N. H. 311; Harris v. Thomas, 1 Hen. & 
 M. 18; Alderson v. Biggars, 4 Hen. & M. 
 472; Mitchell v. Lenox, 2 Paige, 280; 
 Brill V. Styles, 36 III. 305. 
 
 In Equity, a demmrer is only a mode 
 of defence to a bill. It is never resorted to 
 for the purpose of settling the validity of a 
 plea or answer. Traver.s r. Koss, 1 M'Car- 
 ter (N. J.), 254; Raymond v. tjimonson, 7 
 Blackf. 79; Thomas v. Brathear, 4 Monroe, 
 65; Cooper Eq. I'l. 110; Stone v. Moore, 
 26 III. 165. 
 
 2 As to the expediency of demurring, 
 see Wigi'am on Disc. 158. 
 
 8 Jones V. Davids, 4 Russ. 277; Hill v. 
 Reardon, 2 S. & S. 431, 439; Uollings- 
 
 worth V. Shakeshaft, 14 Beav. 492; Webb 
 V. h.nglaiid, 29 Beav. 44; 7 Jur. N. S. 153; 
 Ernest v. Weiss, 9 Jur. N. S. 145; 11 W. 
 R. 206, V. C. K.; Nesbitt v. Bfi ridge, 9 
 Jur. N. S. 1044; 11 W. R. 446, M. R.; but 
 see Morocco Company v. Frv, 11 Jur. N. 
 S. 76, 78; 13 W. R. 310, 312", V. C. S. 
 
 4 Godfrey v. Tucker, 9 Jur. N. S. 1188; 
 12 W. R. 33, M. R; 33 Beav. 280. 
 
 5 Nesbitt v. Berridge, uhi suj). ; but see 
 S. C. before L. C, 10 Jur N. fa. 53; 12 W. 
 R. 283. 
 
 Brownsword v. Edwards, 2 Ves. S. 
 243, 247; Mortimer v. Hartley, 3 De G. & 
 S. 316; Evans v. Evans, 18 Jur. 666, 
 L. JJ.; Cochrane v. Willis, 10 Jur. N. S. 
 162, L. J J. ; Ld. Red. 154, n. {p).
 
 GENERAL, NATURE OF DEMURRERS. 543 
 
 overruled, with liberty to the defendant to insist upon the same Ch. XIV. § i. 
 
 defence by answer, if the allegations of the bill are such that the '^- — y ' 
 
 case ought not to be decided without an answer being put in.^ 
 
 A demurrer has been so tenned, because the party demumng Origin of 
 demoratur, or will go no fiirther : '^ the other party not having ^^^^' 
 shown sufficient matter against him; and it is in substance an 
 allegation by a defendant, which, admitting the matters of fact 
 stated by the bill to be true, shows that, as they are therein set Nature of 
 forth they are insufficient for the plaintiff to proceed upon, or to ^^^ence by 
 oblige the defendant to answer ; or that, for some reason apj^arent 
 on the face of the bill, or because of the omission of some matter 
 which ought to be contained therein, or for want of some cir- 
 cumstance which ought to be attendant thereon, the plaintiff ought 
 not to be allowed to proceed. It, therefore, demands judgment of 
 the Court, whether the defendant shall be compelled to make any 
 further or other answer to the plaintiff's bill, or that particular part 
 of it to which the demurrer applies.^ 
 
 A demurrer will lie wherever it is clear that, taking the charges Demurrer 
 in the bill to be true, the bill would be dismissed at the hearing;* does not he, 
 
 ' ... *. uuless it IS 
 
 but it must be founded on this : that it is an absolute, certain, dear bill 
 
 and clear proposition that it would be so;^ for if it is a case of mbsed at the 
 
 circumstances, in which a minute variation between them as heariug. 
 
 stated by the bill, and those established by the evidence, may 
 
 either incline the Court to modify the relief or to grant no relief 
 
 at all, the Court, although it sees that the granting the modified 
 
 relief at the hearing will be attended with considerable difficulty, 
 
 will not support a demurrer.® Therefore, where a bill was filed 
 
 for the sj)ecific performance of an agreement, and the case turned 
 
 upon the point, whether the facts stated, amounted to a perfect 
 
 agreement, Lord Rosslyn thought that, although the circumstances, 
 
 1 Collingwood v. Russell, 13 W. R. 63, the plea, and expresslj' denying the fraud 
 L. JJ.; 10 Jur. N. S. 1062; Lautour v. and combination, and" the facts on which 
 Attorney-Generiil, 11 Jur. N. S. 48; 13 W. the charge is founded." Story Kq. I'l. 
 R. 305, L. J.J.; Baxendale v. Westminturn § 441 (3d ed.), note (6). A similar rule 
 R. W. Co., 8 Jur. N. S. 11G3, L. C. has been adopted in Massachusetts. Rule 
 
 2 3 Bl. Com. 314; 'i'omlins' & IJurrill's 10, of the Rules tor Practice in Chancery. 
 Law Diet. Tit. "Demurrer;" Story Yj\. 8 Ld. Hed. 1U7. 
 
 PI. § 441. A demurrer is an answer in * Utterson /•. Mair, 2 Ves. J. 95; 4 Bro. 
 
 law to the bill, though not, in a technical C. C. 270; llovcnden v. Lord Annesley, 2 
 
 sense, an answer according to the common Sch & Lef. 607, 638. 
 
 language o( practice. New .Jersey r New 6 Brooke v. Hewitt, 3 Ves. 253, 255; 
 
 York, 6 I'eterH, 323. The 32d Equity Kule Morrison r. Morrison, 4 Drew. 315. 
 
 of the L'nited StatcH Courts, declares, See Story Kq. I'l. §§ 446, 447, 478; 
 
 "The defendant may, at anytime before Lubt', l'",q. I'l." 338, 339, 340. A demurrer 
 
 the bill is taken for confessed, or alter- to a bill must be fouiuled on some strong 
 
 •wards, with the leave of the (,'ourt demur point of law, wliidi goes to the absolute 
 
 or pleiid to the whole bill or [inrt of it, and denial of the relief sought, and not on cir- 
 
 he miiy demur to [lart, plead to part, and cunistances in wliicli a mituite variation 
 
 answer as to the residue; tint iti every case, may incline tlie (Jourt either to gr:int, 
 
 in which the bill specially charges fraud modify, or refuse the application. Ver- 
 
 or combination, a plea to such part must planck v. Caines, 1 John. Cb. 68. 
 be accompanied with an answer fortifying
 
 544 DEMURRERS. 
 
 Cii.XlV. §1. as stated in the bill, nmouiiteil laore to a treaty than a complete 
 
 ' > ' agreement, the question whether it was an agreement or not 
 
 depended very much upon the effect of the evidence, and therefore 
 overruled the denmrrer.^ 
 Domurrer As a demurrer proceeds upon the ground that, admitting the 
 
 n.lmits facts f^^.^^ stated in the bill to be true, the plaintiff is not entitled to 
 'the relief he seeks, it is held that, at least for the purpose of argu- 
 ment, all the matters of fact which are stated in the bill are 
 admitted by the demurrer,^ and cannot be disputed in arguing 
 the question whether the defence thereby made be good or not ; 
 and such admission extends to the whole manner and form in 
 which it is there stated. Upon this ground, where a bill misstated 
 a deed, by alleging it to contain a proviso which it did not. Lord 
 Cottenham, upon the argument of a demurrer to the bill, refused 
 even though to allow the defendant's counsel to refer to the deed itselt; for the 
 contents of a purpose of showing the incorrectness of the manner in which it 
 mTsstatTd. ^ was set out : although the bill contained a reference " for greater 
 certainty as to its contents, &c.," to the deed, as being in the cus- 
 tody of the defendants. His Lordship said, that to hold otherwise 
 would be to give the defendants an advantage, depending upon 
 the accident of their having the custody of the document which 
 the bill purported to set out, and would in effect be to decide the 
 question raised by the demm-rer, upon matter which was dehors 
 the record.^ In this case, the object of referring to the deed was 
 to contradict a statement in the bill: and where the object is to 
 support, and not contradict, the plaintiff's case, it appears that the 
 Court will still refuse to look into the document.* 
 Where bill ^^ is also to be remarked, that where a bill professes to set out 
 
 professes to a deed inaccurately, and alleges, as a reason for so setting it out, 
 inaccurately, that it is in the possession of the defendants, a demurrer to the bill 
 because it is cannot be sustained, although, according to the terms of the deed, 
 
 in the defend- ,.■„., i • , i -^ i. 
 
 ant's posses- as stated by the plamtm, he can take no title under it : because 
 
 sion, plaintiff 
 
 1 Brooke v. Hewitt, iibi sup.; HefBeld legal effect, must be taken to be true. 
 Waterworks v. Yeomans, L. J. 2 Cli. Ap. York Manuf. Co. v. Cutts, 18 Maine, 204. 
 8; but see Reeves v. Greenwich Tanning A demurrer is a denial in form and sub- 
 Company, 2 H. & iM. 54. stance of the plaintilf's right to have his 
 
 2 li. I. Company v. Henchman, 1 Ves. J. case considered in a Court of Equity, and 
 289; and seeNesbitti;. lierridge, 9 Jur. N. an admission of all its allegations that are 
 S. 1044; 11 \V. K. 446, M. K. ; Story Eq. properly pleaded. Grithug v. Gibb, 2 
 PI. § 452; .Mills v. Brown, 2 Scam. 549; Black, U. S. 519. 
 
 Goble V. Andras, 1 Green Ch. 66; Niles v. » Campbell v. Mackay, 1 M. & C. 603, 
 
 Anderson, 5 How. (.Miss.) 365; Green v. 613; Cuddon v. Tite, 1 Gift'. 396. 
 
 Robinson, ib. 80; Smith v. Allen, 1 Saxton * Harmer v. Gooding, 3 De G. & S. 407, 
 
 (N. J.), 43; Wales v. Bank of Michigan, 410,411; 13 Jur. 400, 402; see, however, 
 
 Harnng. Ch. 308. But it cannot supply Weld v. Bonham, 2 S. & S. 91; and as to 
 
 defects in substance, or cure a defective Acts of Parliament, see Wilson v. Stan- 
 
 Btatement of title. Mills v. Brown, and hope, 2 Coll. 629; 10 Jur. 421; Apperly v. 
 
 Goble V. Andras, M supra. I'agu, 1 1'1'il. 779, 785; 11 Jur. 271; Bailey 
 
 \Vhere a cause is argued upon a demur- v. Birkenhead Junction Kiulway, 12 Beav. 
 
 rer, and plea in bar, the averments in the 433, 443; 14 Jur. 119, 122. 
 plea, for the purpose of considering their
 
 GENERAL NATURE OF DEMURRERS. 
 
 545 
 
 the Court ^vill not, under such circumstances, bind the plaintiff by 
 the statement he has made, which he alleges to be inaccurate, and 
 which the defendant, therefore, by his demurrer admits to be so. 
 In a case of this description, if the defendant means that the Court 
 should at once be called upon to detennine the true construction 
 of the deed, he must plead it.^ 
 
 On a demurrer, ambiguous statements are construed adversely 
 to the pleader : but a defendant is not entitled to press the prin- 
 ciple so far, as to draw any inference of facts he pleases which may 
 happen to be not inconsistent with the averments of the bill.'^ 
 
 But although a demun-er confesses the matters stated in the bill 
 to be true, such confession is confined to those matters which are 
 well pleaded; «. e., matters of fact.'' It does not, therefore, ad- 
 mit any matters of law which are suggested in the bill, or inferred 
 from the flicts stated ; * for, strictly speaking, arguments, or infer- 
 ences, or matters of law, ought not to be stated in pleading,^ 
 although there is sometimes occasion to make mention of them for 
 the convenience or intelligibility of the matter of fact. Thus, 
 in the case of Campbell v. Mackay^ above referred to, if the bill 
 had gone on, after stating the alleged words of the proviso, to aver 
 a legal inference from them which such words did not authorize, 
 the demurrer, although it was held to confess the existence in the 
 deed of a proviso, in the words stated, as a matter of fact, would 
 not have been considered as admitting the inference of law. alleged 
 to have arisen from it. An inference of this nature is called a 
 Repugnancy ; and it is a rule in pleading that a demurrer will not 
 admit mutters, either of law or of fact,' which are repugnant to each 
 other. Thus, where a bill Avas filed for a discovery, and for an 
 account and delivery up of the possession of land, on the ground 
 that the plaintiff could not describe the land so as to proceed at 
 Law, by reason of the defendants having got possession of the 
 title-deeds and mixed the boundaries. Lord Kosslyu allowed a 
 demurrer, because the bill was a mere ejectment bill; but he inti- 
 mated that, even if the bill had been for a discovery only, it could 
 not have been sustained : because the averment, that the plaintiff 
 couM wA ascertain the lands, was contrary to the tiu-ts disclosed 
 in the bill, in which the lands were sufficiently described." And 
 
 381; Redmond v. Dickerson, 1 Stockt. 
 (N. J.) 507; Lea v. Robeson, 12 Gray, 
 280. 
 
 ■« Lciiw. Robeson, 12 Gray, 280; Story 
 Eq. PI. §452; br^-an v. Spruill, 4 Jones 
 Kq. (N. C.) 27; Dike v. Greene, 4 R. 1. 
 285. 
 
 1 Mcnill V. riainliel.l, 45 N. II. 126; 
 Murcli V. Concord Hailioad, 29 N. 11. 33; 
 Wootttn V. Hurcb, 2 Md. Cb. Dec. 100. 
 
 c Loker v. KoUe, 3 Ves. 4, 7. 
 
 Ch. XIV. § 1. 
 
 will not be 
 bound by his 
 statement 
 upon 
 demurrer. 
 
 Ambiguous 
 statements 
 construed 
 adversely to 
 pleader. 
 
 Jlatters of 
 fact only 
 admitted by a 
 demurrer : 
 
 and not infer- 
 ences of law : 
 
 or matters 
 which are 
 rejiugnant, 
 whether of 
 fact or law. 
 
 1 Wright I). Pluniptree, 3 Mad. 481, 490. 
 
 2 Simpson V. Fogo, 1 J. & II. 18; 6 Jur. 
 N. H. "J'l'J. 
 
 8 Kord r. Peering, 1 Vcs. .1. 72, 78; 
 Commercial Bank of Manchester ». IJuck- 
 ner, 20 llr.w. U. S. 108; Piiterson's II. U. 
 K. R. Co. w. Jcrs'-v City, 1 Stockt. (N. .J.) 
 434; «ec Story Iv]. HI. § 452; Mills v. 
 Brown, 2 Scam. 64'J; Goblc v. Andras, 1 
 (Jreen Ch. Ott; Niles v. Anderson, 6 How. 
 (Miss.), 366; Baker v. Booker, C Price, 
 
 85
 
 Mt) DEMURRERS. 
 
 Til. XIV. § 1. so, whoro a rooord is pleaded, it lias been held, that a demurrer is 
 
 ■ Y never a eonfession of u thing stated in the bill, repugnant to the 
 
 reeord.' 
 wiion the It niay be noticed here, that there are some facts of which the 
 
 l)?""^Vn Court is said to tiike Judicial notice: thus, it recognizes foreign 
 
 knowjuiii- States; and when facts are averred in a bill which are contrary 
 avHTuuMir ^'^^ ''"y ^''^"t of which the Court takes judicial notice, the Com-t will 
 talso. not pay ^any attention to the averment. Thus, Avhere, in order to 
 
 prevent a demurrer, it was falsely alleged in the bill that a revolted 
 colony of Spain had been recognized by Great Britain as an inde- 
 pendent State, Sir Lancelot Shadwell V. C, upon the argument of 
 a demurrer to the bill, held, that the fact averred was one which 
 the Court was bound to take notice of as being false, and that he 
 must, therefore, take it just as if there had been no such averment 
 Fact*, of on the record.'- It is to be observed, that besides the rec- 
 which the ognition of foreign States, the Court will also take judicial or 
 
 ( ^ourt takes » , _ ... . 
 
 judicial official notice of a war in which this country is engaged ; but not 
 
 cognisance. ^£ ^ ^^.^^. j^^^^yggj^ foreign countries.^ The Court is also bound to 
 notice the time of the Queen's accession, her pi'oclamations, and 
 privileges; time and place of holding Parliaments, the time of 
 sessions and prorogation, and the usual course of proceedings ; the 
 Ecclesiastical, Civil, and Maritime Laws ; the customary course of 
 descent, in Gavelkind and Borough English tenures ; * the course 
 of the Almanac;^ the division of England into counties, prov- 
 inces, and dioceses ; " the meaning of English words '' and terms 
 of art, even when only local in their use ; legal weights and meas- 
 ures, and the ordinary measurement of time; the existence and 
 course of proceeding of the Superior Courts at "Westminster, and 
 the other Com-ts of General Jurisdiction : ^ such as the Courts of 
 the counties palatine, &c. ; and the privileges of its own officers.^ 
 It follows, therefore, from the principle before laid down, that 
 Avhei-e a bill avers any fact in opposition to what the Court is so 
 officially bound to notice, such averment will, in arguing a 
 demurrer to the bill, be considered as a imllity.^" 
 
 1 Arundel v. Arundel, Cro. Jac. 12; nipiseogee Lake Co. v. Younp, 40 N. IT. 
 
 Com. Di<T. Pleader, Q. 6; Green ?). Dodge, 420. But not the local situation, and dis- 
 
 6 Hate, 80; Mortimer v. I'Yaser, 30 Jan. tance of different places in a ciuiiity from 
 
 1837, reported upon another point, 2 M. & each other. Deybel's case, 4 B. & Aid. 243. 
 
 C. 173. ' Commonwealth v. Kneeland, 20 Pick. 
 
 ^ Taylor v. Barclay, 2 Sim. 213, 220, 239. 
 
 ante, p. 18, 19. " 8 Newell v. Newton, 10 Pick. 470; 
 
 8 Dolder v. Lord Iluntingfield, 11 Ves. Ilawkes v. Kennebeck, 7 Mat^s. 461; Kip- 
 
 292, «n<«, p. 54 ley v. Warren, 2 I'ick. 592; Despau v. 
 
 * Crosby v. Hetlierington, 4 Man. & Gr. Swindler, 3 Martin (N. S.), 705; Jones v. 
 
 946. Gale, 4 Martin, 635; Woods v. Fitz, 10 
 
 6 Mayor of Guildford v. Clark, 2 Vent. Martin, 196. 
 
 247. " '•' Taylor on Evid. Chap. IL; Stephen 
 
 6 Courts ex officio take notice of the on PI. 269; and see 1 Chitty on PI. 236 ei 
 civil divisions of the State created by pub- seq.. where further information on the sub- 
 lie laws, as counties and towns, and of its ject is to be found; see also 1 (ireenl.Evi- 
 great geograidiical features, as its large dence, §§ 4 6; Story Eq. PI. § 24. 
 lakes, river.-i, and mountains. The Win- i" Courts will not, ex officio, take no-
 
 DIFFERENT GROUNDS OF DEMURRER. 
 
 547 
 
 Ch.XIV.§2. 
 
 Sectiox II. — The different Grounds of Demurrer. 
 
 A demurrer may be either to the relief prayed, or, if discovery to the reUef, 
 is sought, to the discovery only, or to both. If the demurrer is ^y^°^^_ 
 good to the relief, it will be so to the discovery;^ if, therefore, 
 aplaintiifis entitled to the discovery alone, and goes on to pray 
 relief, a general demim-er to the whole bill will be good ; ^ and, 
 for the purposes of a demurrer, a prayer for general relief renders 
 the bill a bill for relief^ A prayer will not, however, convert a What consti- 
 
 ^ •' tutes bill for 
 
 tice of foreign laws, and roiiseqiiently 
 they must, when miiteiial. be stated in 
 pleading. Campian v. Killc, 1 McCarter 
 (N. J.), 229. 
 
 1 L(l. lied. 1S3; Loker v. Rolle, 3 Ves. 
 4, 7 ; Kyves );. Uy ves. ib. 343, 347 ; Miic- 
 klestoii V. Browii^ 6 Ves. 63; Barker v. 
 Dacie, 26. 6S6; Hoiigkin v. Longdeii, 8 Ves. 
 3; Williams r. Steward, 3 Mer. 502; Gor- 
 don V. Simpkiiisun, 11 Ve*. 509; Speer v. 
 Crawter, 17 Ves. 216: Evan v. Corpora- 
 tion of Avon, 29 Be;iv. 144. 
 
 -2 Price V. .lame?, 2 Bro. C. C. 319; Col- 
 lis V. Swavue, 4 Bro. C. C. 480; Albretcht 
 V. Sussma"n, 2 V. & B. 328; see Miller v. 
 Ford, 1 Siixton (N. J.), 360; Coombs v. 
 Warren, 17 Maine, 404; Sauza v. Belcher, 
 3 Ivlw. Ch. 117. It is s:)id by Mr. .Justice 
 Storv, in note to Storv Kq. I'l. § 412, re- 
 marking on the rule in the text, that " the 
 rule formerly adopted in lvif;land was dif- 
 ferent. It was, that if a bill was for dis- 
 covery and relief, and it was pood for 
 discovery only, a general demurrer to tlie 
 wliole bill was bal; for though the party 
 was not entitlc<l to relief, lie was not to be 
 prejudiced for having askel too mucli." 
 To this he Cites, Brandon v. Sands, 2 Ves. 
 .1. 514; Salter n. Sc.irborougli, 9 Ves. 75; 
 Attorney-General v. Brown, 1 Swanst. 
 294; Mlford ICq. PI. by Jeremy, 183, 184. 
 •' In New York," the same learned author 
 adds, •' the old Knglish rule is adhered to; 
 and indeed it h.is much to commend it." 
 Sec Laiglit v. Morgan, 1 .John. Cases, 429; 
 S. C. 2 Cainc's Ca. in Krror, 344; Le Hoy 
 V. Vecder. 1 .John C.iaes, 423; Le Hoy v. 
 Servis, 1 Gaines's Ca. in Krror, 1 ; S. G. 
 2 (Raines's Ga. in Terror, 175; Kinil)erly f 
 Sflls, 4 .John. Ch. 407; Livingston v. Liv- 
 ingston, 4 .John. ('h. 490; llif/ginljoihani 
 V. Burnet, 5 .lolin. Ch. 184. 1 he |)r.'])er 
 course is held, in New York, to be, to ilc- 
 niur to the relief and to answer to the dis- 
 covery. llig:;iiibotham v. Burnet, 5 .John. 
 Gh. 184. I he same (l.cirine was aflirmed 
 in the Supreme llourtif the United States 
 in Livingston v. Story, 9 Peters, 632, 658, 
 where Air. Justice Thompson said, " And 
 if any part f)f the bill is good, and entitles 
 the plain; iff cither to relief or to discovery, 
 a demurrer to the whole bill cannot be 
 sustained. It is an established and uni- 
 versal rule of pKM<ling in ('hani'ery, tliat 
 a defendant may meet the plamtill':! bill 
 
 by several modes of defence. He may 
 demur, answer, and plead to different 
 parts of the bill; so that if a bill for dis- 
 covery and relii-f contains ))roper matter 
 for the one and not lor the other, the de- 
 fendant should answer the proper, and 
 demur to the improper, matter. But if he 
 demurs to the whole bill, the demurrer 
 must be overruled; " see post, 584. So in 
 Wright V. Dame, 1 Met. 241, Mr. Justice 
 Putiuim, delivering the opinion of the 
 Court, said, " We adopt the old rule of 
 pleading in Equitj', that on a general de- 
 murrer to the whole bill, if there is any 
 part, either as to the relief or discovery, to 
 which the defendant ought to put in an 
 answer, the demurrer, being entire, ought 
 to be overruled." And he cites, 1 Harri- 
 son Cli. Pr. (7th ed.) 414; see Higgin- 
 botham v. Burnet, 5 John. Ch. 186; Co- 
 nant i". Warren, 6 Gray, 502; Brockway 
 r. Copp, 3 Paige, 539; Sikes v: Truitt, 4 
 Jones Kq. (N. G.) 361; Atwill v. Ferrett, 
 2 Blatch. G. C. 39; Metier v. Metier, 3 C. 
 E. Green (N. J.), 270; .Metier v. Metier, 4 
 G. E. Green (N. J ), 457; Baiita v. Moore, 
 2 McCarter (N.J), 97; Miller v. Ford. 
 Saxton (N. J.), 365; Holmes v. Holmes, 36 
 Vt. 525, 537. " The defendant should an- 
 swer as to the discover}^ and tlemur as to 
 the relief." Laight v. Morgan, 1 John. 
 Gases, 434. But where a bill seeks gen- 
 eral and special relief, and also discovery, 
 and relief is the principal object, and dis- 
 covery is sought merely as incidental to 
 the relief, if the plaintiif shows no title to 
 the relief sought, a demurrer lies to the 
 whole hill. Poole v. Llovd, 5 Met. 525; 
 see Mitchell I'. Green, 10 Met. 101; Walker 
 V. Locke, 5 Gush. 90, 93; but see Holmes 
 1;. Holmes, 30 Vt. 525, 537. A defendant 
 cannot plead or answer, and demur both, 
 to the whole bill or to tlr! same jiart of 
 a bill. (;iark v. I'helps, 6 .John. Gh. 214; 
 Beauchamj) I'. Gibbs, 1 Bibb, 481; Kob- 
 crt.son V. Bingly, 1 M'Cord Gh. 362; see 
 jxisl, 589, n. 8. 
 
 3 Angell V. Westcombo, 6 Sim. 30; 
 Ambury V. .loiies, Younge, 199; .James v. 
 Herriot't, 6 Sim. 428; Hose t'. Gannel, 3 
 Atk. 439; Baker v. Brainah, 7 Sim. 17; 
 Sonthea.stern Hallway Ciim|iany v. Sub- 
 marine felegraph Company, Ih Ilea v. 429; 
 17 .lur. 1014; and .see ;^<M<,"Gliup. XXXI V. 
 § 2, liills of JJUcovery. 
 
 relief.
 
 548 
 
 DEMURRERS. 
 
 Oil. XIV. §'2. 
 
 l)i'fi-nd;int 
 iiiiiy ili'iiHir to 
 n'licf. without 
 di'iiuirriiij; to 
 discover)- ; 
 
 But cannot 
 demur to 
 discovery, 
 witl'.out" 
 demurring to 
 relief ; 
 
 Exceptions to 
 the rule. 
 
 bill into one for ri'lu'i" iC it incri'ly prny.s for llic (M]nit:il)le assist- 
 anci' ot' till' Court, c'ousiMiiu'iitiiil upon tlic iiraycr for discovery : ^ 
 such as, a writ of iiijiinctioii, or a coiuuubtiion U) cxauiiue wit- 
 nesses abroad,'- or that, the testimony of witnesses may be 
 })eritetuated,'' or that defendant may set Ibrth a list of deeds,'* 
 
 A'otwithstamling the general rule, that if the relief ])rayed is 
 unnecessary or impro])ei', the defendant may cover himself by a 
 general demurrer, yet this will not preclude the defendant, in cases 
 where, if the bill had been for a discovery only, there would have 
 been a right to such discovery, from demurring to the relief only, 
 and answering as to the discovery, or, in other words, giving the 
 discovery required.^ 
 
 The converse of this proposition, however, will not equally hold : 
 for it has been determined, that where a bill i)rays relief as well 
 as discovery, the defendant cannot demur to the discovery and 
 answer to the relief: for then he does not demur to tlie thing re- 
 quired, but to the means by which it is to be obtained.® 
 
 There are, however, some exceptions to the last-mentioned rule : 
 as Avhere the discovery sought would subject the defendant to 
 punishment, or to a penalty, or forfeiture ; or is immaterial to the 
 relief ])rayed ; or is of matters which have been connnunicated 
 imder the seal of professional confidence ; or Avhich relate entirely 
 
 1 A mere bill of discovery cannot prop- 
 er!}' pmv for relief. Where upon (he facts 
 state(i, the relief prayed for by the bill is 
 proper, the bill is something more than a 
 mere bill of discovery. Wliere the bill is 
 for discovery nierei}', as distinguished 
 from a bill of discovery and relief, an in- 
 junction to stay proceedings in a suit at 
 Law for which the discovery is souglit, 
 must, according to the practice in New 
 Jersey, be dissolved, the Court of Chan- 
 cery in that State never having adopted 
 the principle, that because its jurisdiction 
 has once rightfully attached, it will retain 
 the cause, as a matter of right, for the 
 purpo.ses of complete relief Little v. 
 Cooper, 2 Stockt. (N. J.) 273; Brown v. 
 Edsall, 1 Stockt. (N. J.) 256; see Pool 
 V. Lloyd, 5 Met. 525. 
 
 But" in Holmes v. Holmes, 36 Vt. 525, 
 537, Poland C. J. said, " '1 he rule, as 
 ■we understand it, is, that when a bill is 
 brought seeking botli discovery and relief, 
 and material discovery is elicited, the 
 Court w ill proceed to grant the proper re- 
 lief, and will not turn the plaintilf around 
 to seek relief at Law, even if the relief 
 were such as a Court of Law iniglit grant. 
 It may not be uriiver.'ally true that obtain- 
 ing discovery will give a Court ot Equity 
 jurisdiction to grant relief, but this is the 
 general rule." And in many cases it has 
 been held, that where a party has a just 
 title to come into Equity for a discovery, 
 and obtains it, the Court will go on and 
 
 give him the proper relief; and not turn 
 him round to the expenses iind inconven- 
 iences of a doubtful suit at Law. See a full 
 discussion of this subject, and a citation 
 of the authorities, 1 Story Eq. Jur. § 64 A 
 et seq. 
 
 2 Brandon v. Sancis, 2 Ves. J. 514; 
 Noble V. Garland, 19 Ves. 376 ; Lousada 
 V. Tenipler, 2 Kuss. 561 ; King v. Allen, 4 
 ]Mad. 247; see also Uuke of Dorset v. 
 Girdler, Prec. in Cli. 532. 
 
 3 Hall V. Iloddesdon, 2 P. Wms. 162; 
 Vaughan v. Fitzgernid, 1 Sch. & Lef. 316; 
 Rose V. Gannell, 3 Atk. 43'J. 
 
 4 Crow V. Tyrell, 2 Mad. 397, 408. 
 
 6 Hodgkin v. Longden, 8 Ves. 2; Todd 
 V. Gee, 17 Ves. 273; see Story Eq. PI. 
 § 312 and cases in note; Brownell v. Cur- 
 tis, 10 Paige, 214. 
 
 e Morgiin v. Harris, 2 Bro. C. C. 121, 
 124; Story Eq. PI. § 312, in note, §§ 441, 
 546; Brownell v. Curtis, 10 Paige, 214; 
 ante, 547 note. It has been suggested that 
 this rule may possibly, in some cases, be 
 afiected by Order XIV. 8; that "no de- 
 murrer or plea shall be held bad, and over- 
 ruled upon argument, only because such 
 demurrer or plea does not cover so much 
 of the bill as it might by Law have ex- 
 tended to." But see Uell v. Hale, 2 Y. & 
 C. C. C. 1; 6 Jur. 966; and post, p. 584. 
 This rule has been adojited by the Su- 
 pieme Court of the United States. Equity 
 Rule, 38; Story Eq. PI. § 443.
 
 DIFFERENT GROUNDS OF DEMURERR. 
 
 549 
 
 to the defendant's title, and not to that of the plamtiff. In cases of Cn.XlV.§2. 
 
 this nature, the Coixrt will allow a defendant to protect himself by ' y ' 
 
 demun-er fi-om the particular discovery sought : though it will not 
 protect him fi-om the reUef prayed, if the plaintiif's title to it can 
 be established by other means than the discovery of the defendant 
 himself Thus, in a bill to inquire into the reality of deeds, on a 
 suggestion of forgery, the Coui-t has entertained jurisdiction of the 
 cause, though it does not obUge the party to a discovery, and 
 has directed an issue to try whether the deeds were forged or 
 not.i 
 
 It is proposed now to consider : first, the grounds of demurrer to 
 the relief; and then those of demurrer to the discovery only. 
 
 Demurrers to the relief may be either : To the jurisdiction ; the Different 
 person ; or the matter of the bill, either in its substance or form. demurre°to 
 
 Demurrers to the jurisdiction are either on the ground: I. That relief. 
 the case made by the bill does not come within the description of J° ig|^ij,ji^jjj . 
 cases in which a Court of Equity assumes the power of decision ; 
 or, II. That the subject-matter is within the jurisdiction of some 
 other Ct)urt.^ 
 
 I. It would be a task far exceeding the hmits of this work, and i. Because 
 not strictly within its object, to attempt to point out the cases in S^ti^eg^^tU 
 which a demurrer will hold to a bill, on the ground that the case not within 
 
 ... , -,. n ^• c • thejunsQic- 
 
 made by it does not come within the ordinary cases lor reliet m a tion of a 
 Court of Equity. It is sufticient to direct the reader's attention to jJ^Syf 
 the admirable statement of the general objects of the jurisdiction 
 of a Court of Equity, which is to be found in Lord Redesdale's 
 Treatise upon Pleading ; ^ and to observe, that if the case made 
 by the bill appears to be one on which the jurisdiction of the Court 
 does not arise, a demurrer will hold.'* And it is to be observed, where defect 
 that a derauiTcr will hold equally, where the defect arises from the the omissTon 
 omission of matter which ought to be contained in the bill, or of of a necessaty 
 some circumstance Avhich ought to be attendant thereon for the stance; 
 
 1 Per Lord Hardwicke in Brownsword 
 ». Edwards 2 Yes. S. 246 ; Attorney-Gen- 
 eral V. Sndell, I'rec. in Ch. 214. 
 
 2 A deinuiTcr for want of equity, in- 
 cludes a demtirr''r for wnnt of jurisdic- 
 tion. 'I hompson 1'. IJiiiversilv of London, 
 83 L. J. Ch. 625; 10 .lur. N.S. 669, V.(;. 
 K.; BPC also Harbor v. Barber, 4 Drew. 
 660; 5 .lur. N .S. 1107; (;(>oknev v. An- 
 d'Tson. .31 i'.eav. 452; 8 .lur. N."S. 1220; 
 1 De(i.,.f. & .S. a65; !» .lur. N. S. 7.36. As 
 to the form of ik-niuncr for wiiut of juris- 
 diction, sef Harbor v. Itiirber. ubi sup. 
 
 8 And nee I'omI). on lv|.; Coop. Eq. PI.; 
 Story Eq. .lur.; Story Ivq. I'l. 
 
 * .Stephenson v. Davis, 56 .MmIiip, 73. 74, 
 75; Story Eq. I'l. §§ 466, 467; .Mitford 
 Kq. I'l. l)y .Icromy, iio et si-r/. ; Hlomit v. 
 (jiiren, ;i Ihiyw. bH; Livinu'^toii v. J>ivinxH- 
 ton, 4 John. Ch. 2b7. Where a bill in 
 
 Equity sets forth various claims, and the 
 defendant files ii general demurrer, the de- 
 murrer will be overruled if nny of the 
 claims be proper for the jurisdiction of 
 the Court of Equitv. Ca.stieman v. Veitch, 
 3 Hand. 5',iS; Kim'bevly v. Sells, 3 .John. 
 Ch. 467; Graves v. Downey, 3 Monroe, 
 356; Hlouiit r. Giiron, 3 llayw. 8.H; Mor- 
 tone V. (li-euiula Acmleinii s, 8 Sm. & M. 
 773. A demurrer to the whole of a bill 
 contiiining some matters relieviible and 
 otiiers not, is bad, uidess the bill is multi- 
 farious. Dinimoek v. Bixl)y. 20 I'ick. 368. 
 In order to sustain n denuinTr for w.uil of 
 jurisdiction to the whole! of a lull, it niusi 
 "iippeiir that no substiuitial and es'^ential 
 part of the complaint U williin the jiirin- 
 diclion of the (Jonrt. Boston Water Tower 
 Ca>. v. Boston &c Worcester U.K., 16 Tick. 
 012.
 
 550 
 
 DEMURRERS. 
 
 Cu.XIV.§2. 
 
 where 
 
 defendants 
 are resident 
 abroad. 
 
 II. Because 
 the subject of 
 the suit is 
 within the 
 jurisdiction 
 of some other 
 Court: 
 
 1. That a 
 Court of Law 
 is the proper 
 tribunal. 
 
 ]iurposo of bfiiio-inrr tlu' case pro])orly Avilliin (lie jurisdiction ; as 
 avIkmv it a]t}io:ns tliat (lio case is such as, under no circumstance, 
 can be brounlit within tl»o ordinary scope of a C/Ourt of Equity.^ 
 Thus, where it a))i)ears on the face of tl)e bill that tlie defendants 
 were, at the time of the institution of the suit, resident in a foreign 
 country, and that the suit does not relate to any of the subjects in 
 respect of which the Court is warranted in exercising jurisdiction 
 against persons so resident, a demurrer for want of equity will be 
 allowed.'- 
 
 II. A demurrer, because the subject-matter of the suit is within 
 tlie cognizance of some other Court, may be on the ground tluit it 
 is witliin the jurisdiction either : 1. Of a Court of Common Law ; 
 2. Of the Courts of Probate or Divorce ; 3. Of the Court of Admi- 
 ralty or Commissioners of Prize ; 4. Of the Court of ]5ankruptcy ; 
 5. Of some statutory jurisdiction ; or, 6. Of some other Court of 
 Equity. 
 
 1. If it appears by the l)ill, that the plaintiff can have as effectual 
 and complete a remedy in a Court of Law as in a Court of Equity, 
 and that such remedy is clear and certain, the defendant may de- 
 mur.'^ Thus, Avhere a bill was brought by the executrix of an 
 
 1 Ld. Red. 108; see Columbine v. Chi- 
 chester, 2 Phil. 27; 1 C. P. Coop. t. Cott. 
 295; 10 Jur. 626. For forms of demurrer 
 for want of equity, see 2 Van Hej'. 74, 75, 
 80, 92; iind;wi,7, Vol. III. 
 
 2 Cookney v. Anderson, nhi svp. ; and 
 see Foley v. Maillaniet, 1 De G., J. & S. 
 389; 10 Jur. N. S. 161; Samuel v. Rogers, 
 1 De G., J. & S. 396; and ante, pp. 449- 
 451. 
 
 8 Ld. Red. 123 : Stnrv Eq. PI § 473 ; Coop. 
 Eq. PI. 124; Lyiicii r."\Vil!ar(l,6 John. Ch. 
 342 ; May v. Goodwin, 27 Geo. 352 ; Piced v. 
 Bank of Newburv, 1 I'aige, 215; Boslev v. 
 M'Kim, 7 Har. &' J. 160; Reedu Clarke, 4 
 Monroe, 19; N. London Bank t>. Lee, 11 
 Conn. 112; Coombs v. Warren, 17 Maine, 
 404; Caldwell v. Knott, 10 Yerfjer, 209; 
 Chirk V. Flint, 22 Pick. 231; Iloiire v. 
 Conten(in,l Bro. C C. (Perkin.s's cd.) 27, 
 29, note («), and cases ci'ed; ILinimond 
 V. Messenger, 9 Sim. 327; Bottorf v. Con- 
 ner, 1 Bbickf. 2S7; Foster v. Swasey, 2 
 Wood & M. 217; Pierpont v. Fowle, 2 
 Wood. & M. 23; Smith v. Moreliead, 6 
 Jones Eq. (N. C.) 360. In Finst Cong. 
 Society in Raynliam v. Trustees of the 
 Fund,"&c,., in Raynham, 23 Pick. 148, it 
 was hi'id, that, if a defendant in a suit in 
 Equity, answers and submits to the juris- 
 diction of the Court, it is too l;ite for him 
 to object, that the plaintiff has a i)Iain an<l 
 adequate remeilj- at Law. This objection 
 should be taken at the earlie-t opportunity. 
 Tlie above rule must be taken with the 
 qualification that it is competent for the 
 Court to grant the relief so*ight, and that 
 it has juri-diction of the subject-mntter. 
 Clark 'v. Flint, 22 Pick. 23 1 ; Russell v. 
 
 Loring, 3 Allen, 125,126; see also Lud- 
 low V. Simond, 2 Caines's Cas. Error, 40, 
 56; Underbill v. Van Cortlandt, 2 John. 
 Ch. 369; McDonald r. C;rockett, 2 M'Cord 
 Ch. 135; Pierpont v. I''owle, 2 Wood. & 
 M. 35; Grandiii v. Leroy, 2 Paige, 509; 
 Kobbie V. Underbill, 3 Sandf. Ch. 277; 
 Sperry v. Bliller, 2 B;irb. Ch. 632; 
 Ohling V. Luitjcns, 32 111. 23. The above 
 olijection mriy and should undoubtedly be 
 taken by demurrer, when it appears on 
 the fiice (if the liill; but vi lien a disclosure 
 is sought, " tlic Court should in no case," 
 said Mr. Justice Woodbury, " send the 
 matter to Law till nfter the answer and dis- 
 closure are completed in Equity." Foster 
 V. Swasey, 2 Wood. & M. 221 & 222; see 
 Warner 'v. Daniels, 1 id. 110, 111. In 
 Parker V. Winnipiseos'ee, &c. Co., 2 Black 
 U. S. 715, it was held that where the 
 plaintiff has a clear remedy at Law, his 
 bill may be dismissed bj' the Judges of the 
 United States Courts, sua sponle, though 
 its defects are not noticed either in the 
 pleadings or arguments. 
 
 But in New York, under the Code, there 
 is no longer any distinction between suits 
 at Law and in Eqnit}% as arising from the 
 form of the pleadings or tlie jurisdiction 
 of the Court. General iNIutual Insurance 
 Co. V. Benson, 5 Duer (N. Y.), 168. 
 
 And hi'iice, if the siifliciency of a com- 
 plaint, as not stating facts constituting a 
 cause of action, is now denied, the only 
 question is, whether, if the facts stated are 
 admitted, the plaintiff is entitled to the 
 relief he claims, witliout rolerence to it.s 
 nature as legal or equitable. Jbid.; see 
 also Foster v. Watson, 10 B. Mon. 377.
 
 DIFFERENT GROUNDS OF DEMURRER. 
 
 551 
 
 attorney, for money clue from the defendant for business done as an Cn. Xiv. §2. 
 attorney, the Court aHowed a demurrer to the relief: because the 
 I'emedy was at Law, and an Act of Parliament had pointed out a 
 summary method of obtaining it.^ And where the plaintiff had 
 contrived to purchase goods for export to America, and, after the 
 ship had sailed Avith them, it was discovered that there had been 
 fraud used in the quantity and quality of the goods, but the plain- 
 tiff, being threatened with an action, paid the original jirice under 
 a protest that he would seek relief in Equity, a demurrer was 
 allowed to a bill, Avhen it was afterwards brought for a discovery 
 and account : though it is quite clear that, if the plaintiff had not 
 paid the money, the Court would have granted him relief, by in- 
 junction, against the threatened action for the price.^ Upon the 
 same principle, if a bill is filed for an account, where the subject is 
 matter of set-off, and capable of proof at Law, it may be demurred 
 to.^ And so, if a l)ill is filed for the possession of land, or an Eject- 
 la Frev V. Demarest, 1 C. E. Green 
 (N. J.), 236, 238, Chancellor Green said, 
 " The Court of Cliancery is not deprived 
 of its original jiirisdiction in any case, 
 either by the operation of a sttitute con- 
 ferring simil cir jurisdiction upon the com- 
 mon-law Courts, or by the a(lof)tion in 
 tho-^e Courts of the principles or practice 
 of Courts of Kfiuitv." 
 
 1 Parry v. Oweii, 3 Atk. 740; Ainb. 
 109. For form of tlio demurrer, see ibid. ; 
 Beames on Costs, 376 ; also Maw v. Pear- 
 son, 28 Beav. 196. 
 
 2 Kemp V. Prvor. 7 Ves. 237, 251. 
 8 Dinwiddle v. Bailey, 6 Ves. 136, 141. 
 
 It is a difficult question to determine, 
 when there is an account between two 
 persons, consisting of items cognizable at 
 Law, umler what circum-tances a concur- 
 rent jurisdiction in Equity exists; for 
 ca«es (CI the subject, see loley ». Mill, 1 
 Phil. 3'.<'J, 403; N'orih Eastern Railway 
 Coni|)any r. .Martin, 2 Phil. 758, 763; S. 
 C. ruiiii. Sou'h Ka'^tern llail^jiy Company 
 V. Martin, 13 Jnr. 1; South E;istern Ilail- 
 way (jonipanv v. Brogden. 3 ^PN. & G. 
 8. 16, 2-); 14 .Jur. 7'J5, 707; Phillips v. 
 Phillips, 9 Hare, 471; Navul-liaw v. 
 BrownriKg, 2 De G., M. & (J. 441 ; 16 Jur. 
 079; Padwick v. llnr-t, 18 B. av. 575; 18 
 Jur. 763; I'luker -y. Taylor, 3 Drew. 183; 
 Croskej' V. Euro[)ean and Aiip'rican Shif)- 
 
 Sinj; Company. 1 J. & II. lOK; ,Jur. N. 
 . 1190; Barrv « Stevens, 31 I$eav. 258; 
 9 Jur. N. S. 'l43; Shejifird v. Brown, 4 
 Giff. 208; 9 Jur. N. .S. 195; Smith t;. 
 Leveiiux,9 Jur. N. S. 1140. L. J.I.; 12 W. 
 R. 31; 2 l)e ()., J. & S. 1; llemings v. 
 Pugh, 4 Giir. 45C; 9 Jnr. N. S. 1124; 
 Makepeace v. Kogers, 13 \V. li 450. V. 
 C. S.; 11 Jnr. N. S. 215, affirmed by L.J J. 
 ll.Iur N. S. 314; 13 W. K. 566; Kernot 
 V. Potter, 3 De O., V. & A. 447; Edwaids- 
 Wood V. Baldwin, 4 Gid. 613: '.i .lur N. 
 8.1280; iJiibbs w. Nugent, 11 Jur. N. S. 
 943; 14 W. K, 94, V.G. S.; Hocktont). 
 
 Peake, 10 L. T. N. S. 173, L. JJ. ; Hunter 
 V. Belcher, 2 De G., J. & S. 194; 10 Jur. 
 N. S. 663. It has been held that the Court 
 of Chancerv exercises a concurrent juris- 
 diction with Courts of Law in all matters of 
 account. Duncan t;. L3'on, 3 John. Ch. 
 351,361; Ludlow v. Simond, 2 Caines's 
 Ca. Error. 1, 38,52; Post v. Kimberly, 9 
 Jolin. 470, 493; Ilawley v. Cramer, 4 
 Cowen, 717: Martin v. Spiers, 1 Havw. 
 371; Stothart v. Burnet, Cooke, 420; 
 Breckenridge v. Brooks, 2 A. K. Marsh. 
 338; Fowle v. Lawrason, 5 Peters, 495; 
 Cummings v. White, 4 Blackf. 356; Power 
 V. Heeder, 9 Dana, 10; 1 Story Kq. Jur. 
 §§ 451-457; King v. Baldwin, 17 John. 
 384. In JIassachusett«, the jurisdiction 
 in Equity over accounts is limited to those 
 accounts of which the nature is such that 
 they cannot be conveniently, and properly 
 adjusted and fettled in an action at Law. 
 Genl. Sts. c. 113, § 2; see Locke v. Ben- 
 nett, 7 Cusli. 445, 449; Bartlett v. Parks, 
 1 Cush. 82. But to sustain a bill for an 
 account, there must be mutual demands, 
 or a series of transactions on one side, 
 and of payments on the other. Porter v. 
 Spencer, 2 John. Ch. 171; 1 Story Eq. 
 Jur § 458. Where all the items of account 
 are on one side, the bill cannot be sus- 
 tained; Pearl v. Corp. of Nashville, 10 
 Yerger, 179; 1 Story, Eq. Jur. §§'458,459; 
 unless u discovery is sought and oblsuned 
 in ail of the account. 1 Story Eq. Jur. 
 §§ 67, 458, 459, and cases cited; see 
 Pleasants c. (ilasscoek, 1 Sm. & M 17. 
 
 In New Jersey, the concurrent jurisdic- 
 lioii of the Court of l'L(|uity with the Pre- 
 rogative (Jourts over the adniinistralion of 
 the estates ol deceased persons, has been 
 long and well settled. Iliis jmisdiclion 
 in Equity extends to the acfvunts of ex- 
 ecutors an<l adminislr.itors, and to Iho 
 claims rif creditors, legatees, and n''.\t of 
 kin. Frev v. Demurest, 1 V,. Iv (irceii 
 (N. J.), 236, 238, 239.
 
 552 
 
 DEMURRERS. 
 
 ("n. XIV.^J. 
 
 lloimirror 
 (loos not lio, 
 wlicre Courts 
 of Law have 
 .1 coiu'urivnt 
 jurisdiction; 
 
 a,«i in cases of 
 fraud, 
 
 unless it be 
 fraud in 
 procuring the 
 execution of 
 a will. 
 
 Extension of 
 Common Law 
 jurisdiction 
 has not 
 destroyed, 
 jurisdiction 
 in Equity. 
 
 n}())t l>ill, ;is it is callod, it may 1u' (liMiuimMl to, even tll()u^•Il Ihc 
 1)111 i-hav-iTs the iU'leiulants to liavo <xot the title-deeds, and to Iwive 
 mixed the boundaries, and prays :i discovery, possession, and ac- 
 count : for the ].laintiff, though he is entitled to Ji discovery, has, 
 by praying such relict; rendered liis whole bill liable to demurrer.^ 
 
 It is to be recollect ed that, in many cases, Courts of Equity liavo 
 assumed a concurrent jurisdiction Avith Courts of Law, as in cases 
 of account, partition, and assignment of dower;* and that, where 
 an instrument on which a title is founded is lost, or fraudulently 
 suppressed or withheld from the party claiming under it, a Court 
 of Equity will interfere to supply the defect occasioned by the ao 
 cident or suppression, and will give the same remedy Avhich a 
 Court of Common Law would have given, if the instrument had 
 been forthcoming.^ In all such cases, therefore, a demurrer, be- 
 cause the subject-matter of the suit is within the jurisdiction of a 
 Court of Law, will not hold.* 
 
 Amongst other cases in which Courts of E(][uity and Courts of 
 Law entertain a concurrent jurisdiction, are those arising upon 
 frauds ; therefore, where fraud is made the ground for the inter- 
 ference of this Court, a demurrer will not hold. There is, how- 
 ever, one case in Avhit;h fraud cannot be relieved against in Equity, 
 though a discovery may be sought : namely, fi-aud in obtaining u 
 will, which, if of real estate, must be investigated in a Court of Com- 
 mon Law or the Court of Probate ; ^ and if of personal estate, in 
 the last-mentioned Court.'' 
 
 Although the extension of the jurisdiction of the Cotirts of Com- 
 mon Law has prevented the necessity of resorting to the Courts 
 of Chancery, in many cases in which it was fonnerly necessary to 
 do so, yet, the jurisdiction of the Court of Chancery is not thereby 
 destroyed.'' 
 
 1 Loker v. Rolle, 3 Ves. 4, 7 ; Ryves v. 
 Ryves, ib. 343; Vice v. Thomas, 4 Y. & 
 C. Ex. 538; see Storv Eq. PI. § 476; 1 
 Storv' Eq. Jur § 71; "Coop. Eq. PI. 125; 
 Russell V. Clark, 7 Cranch. 69, 89. 
 
 2 Ld. Red. 120, 123;, 1 Story Eq. Jur. 
 § 75 et seq. 
 
 3 Ld. Red. 113, 1 Story Eq. Jur. § 81 
 et seq. and cases in notes; Bromley v. Hol- 
 land, 7 Sumnpr's Ves. 3 and note {d). 
 
 4 1 Story Eq. Jur. § 184 et seq. and 
 notes; Anderson v. Lewis, 1 Freeman, 
 206. 
 
 6 See 20 & 21 Vic. c. 77, §§ 61-6-3. 
 
 6 Kerrick r. P.ransby. 7 Uro. P. C. ed. 
 Toml. 437: Webb r. "Claverden, 2 Atk. 
 424; Bennet v. Vade, ib. 324; Anon., 3 
 Atk. 17; Allen r. MaciJierson, 1 Phil. 133, 
 143; 7 Jur. 49; Afld. 11 Jur. 785, 11. L.; 
 Gini,'ell V. Home, 9 Sim. 539, 548; Jones 
 r. Gregorj-, 4 Giff. 468; 9 Jur. N. S. 1171; 
 2 De G., J. & S. 83; Afld. 10 Jur. N. S. 
 69; 12 VV. R. 193, L.J J.; and see Boyse 
 
 V. Rossborouffh, Kav, 71; 3 De G., M. & 
 G. 817; 18 ,Iur. 205;"(i H.L. Cn. 1; 3 Jur. 
 N. S. 373; 1 Storv Eq. Jur. § 184, note, 
 § 238; 2 ib. §§ 1445-1448; Story Eq. 
 PI. § 474; Gaines v. Chew, 2 How. U S. 
 619; Tarver v. Tarver, 9 Peters, 180. 
 
 ■> Kcmi) V. Pryor, 7 Ves. 237, 249; Brit- 
 ish ICmpire Sliipping Company v. Somes, 
 3 K. & .]. 433; Athenaeum Life Assurance 
 Society v. Pooley, 3 De G. & J. 294, 299; 
 Oriental Bank v. Nicholson, 3 Jur. N. S. 
 857, V. C. S.; Croskey v. luinpean and 
 American Steam Shipping Companj', 1 
 J. ,^ 11. 108; C .Jur. N. S. 1190; Shepard 
 V. Brown, 4 (iiil'. 208; 9 Jur. N. S. 195; 
 Erey t). Uemarcst, 1 C. E. Green (N. J.), 
 236, 238. Hut where a party has, under 
 the provisions ot the Common Law Pro- 
 cedure Act. 1854 (17 & 18 Vic. c. 125, §§ 
 83-86), pleaded equitable matter in the 
 action at Law, lie will not be permitted to 
 apply subsequcntlj' to the Court of Chan- 
 cery on the same grounds. Terrill v.
 
 DIFFERENT GROUNDS OF DEMURRER. 553 
 
 2. That the objection, on account of the jurisdiction, is not con- Ch. XIV.§2. 
 
 fined to cases cognizable in Courts of Law, is e^ddent from the ' •< ' 
 
 case ah'eady put of proceedings instituted to set aside a Avill of 2. That the 
 
 personal estate on the ground of fraud, which can only be done in Divorce '^^ 
 
 the Couit of Probate : that Court liaA-ing exclusive jurisdiction, in Court has 
 „ , . -11 T • • '' i> V • 1 jurisdiction. 
 
 all cases relating to wills and intestacies oi persons dying possessed 
 of personal property. The Court of Divorce has exclusive juris- 
 diction of the rights and duties arising from the state of marriage ; 
 but it seems that the Court of Chancery will, at the suit of the wife 
 and her trustees, restrain the husband from breaking the covenants 
 of a sejiaration deod.^ 
 
 Fomierly it was held, that a bill of discovery coidd not be filed Bill of dis- 
 in the Court of Chancery, in aid of proceedings in the Ecclesiasti- a^I'oT '^^ *° 
 cal Court ; ^ but it seems that the Court of Probate does not pes- proceedings 
 
 , , . ,. , T-i , . . , in Probate 
 
 sess the same powers to obtain discovery as the Jicclesiastical Court. 
 Court did ; and tliat such a bill may be filed in aid of jjroccedings 
 in the Probate Court.' 
 
 3. If the Court of Admiralty, or Court of Prize, is competent to 3. That the 
 decide upon the subject-matter of the suit, a demurrer will also Admiraitv is 
 hold. Upon this ])rincipk', the Court of Chancery refused to inter- the proper 
 fere, by granting a prohibition against a monition to bring in "'""^ 
 pro[)erty which had been received as a consignment to a merchant : 
 
 Lonl Eldon holding, that the Prize Jurisdiction extends to the 
 question, whether a person who received and sold the property, 
 received it as consignee for a valuable consideration, or as a prize 
 agent.* 
 
 4. The Court of Bankruptcy exercises a special jurisdiction de- 4. That the 
 fined l)y statute;^ and any bill is liable to demui-rer, the subject- Bankruptcy 
 matter of whicli is within the jurisdiction of that Court.® is the proper 
 
 5. Where a new mode of proceeding is provided by statute, and •*" Jl' '^ 
 the ordinary mode of proceeding by bill is, either expressly or im- statutory- 
 plied ly, taken away, a demurrer will lie," Thus, a demurrer will Is^rov^ded 
 lie to a bill to set aside an award made under 9 ct 10 Will. Ill, c. 
 
 15 : that statute having excluded any jurisdiction, to interfei-e with 
 
 Hi^t?^. 1 De G. & .1. 388; 4 Jur. N. S. 41; 3 Puller v. Ingram, 5 .Jur. N. S. 510; 7 
 
 Walker v Micklethwaite, 1 Dr. & Sm. 49; W. R. 302, V. C. W. 
 
 anfl see Evmiih r. ljicuiri<i?e, 2 K. & i. < Case of the Danish ship Novsomhed, 
 
 174. IRl; 8 De G.. M. & G. 100, 109; 7 Ves. 593; see also (^astelii f.' Cnok, 7 
 
 Stewart v. (Jreut We-ti-rn Kailwsiv Co., 2 Hare, 89; .larvis v. Chandler, T. & H. 319; 
 
 Dr. & Sin. 4:iH; atlirim- I 2 D" G.,'.I. & S. Storv Kq. i'l. § 490, and see 24 v'fe 25 Vic. 
 
 319; 11 .lur. N. S. t;27; Wat.nlow v. c. lo', Adinirallv Court Act, 18t;i; 27 & 
 
 Harou, L. K. 2 i:q. 514: 12 .lur. N. S. 28 Vic. c. 25, Naval Prize Act, 18(54. 
 '■'14. V. C. K. 6 12 & 1,3 Vic. e. 100; 17 & 18 Vic. c. 
 
 1 Hunt V. Hunt, 8 ,Tur. N. S. 85; 10 W. 119; 24 & 25 Vic. c. 134. 
 k. 215, L. C ; see a'so Wilson v. Wilson, •'• Saxton v. Davi", 18 Ves. 72, 82; Prcs- 
 
 1 Fl. L. On. 638; 5 II. L. Ca. 40; Kvans ton v. Wilson, 5 Hure, 185, 193; larletoii 
 
 V. CarriuKton, 1 .7. & II. 59K; (; .lur. N. v. Florniiv, 1 Y. & C. Ex. 172, 188; sco 
 
 S. 2fi«; 2 De G., V . h .1. 4«1; 7 .lur. N. ante, p. 61 el se.q. 
 
 .S. 197; and the otlier cases referred to in "^ .See Parry v. Owen, 3 Atk. 740; ante, 
 
 Hunt f. Hunt. p. 506; Frev v. Demurest, 1 C. E- Grt-ca 
 
 ■i Dunn r. Coalcs, 1 Atk. 288; Anon., 2 (N. J.), 230. 
 Ves S. 451.
 
 554 
 
 DEMURRERS. 
 
 Cn.XlV.5 2. 
 
 G. That soiiio 
 other (.'oiirt 
 ot" Kquity has 
 jurisdiction: 
 
 as the Courts 
 of the 
 counties 
 palatiuc, iScc. 
 
 tho et>roi-('oin('nl of l\\v :nv:ii-<l, Imt that, wIi'k;!! is specially i)rovi(le(l 
 by tho statute* 
 
 0. With ri's|>('c't to tho objootion, that some other Court of Equity 
 has tiio propor jmisdiction,- it is to be observed th.-it the establish- 
 luoiit of Courts of Equity lias obtaiuod throuo'liout the whole sys- 
 toui of our judicial polity, aud that uiost of tho inferior branches 
 of that system liave their peculiar Courts of E(piity : the Court of 
 Chancery assuming a general jurisdiction, in cases not within the 
 bounds, or beyond the powers, of inferior jurisdictions.* The 
 principal of tho inferior jurisdictions in England which have cog- 
 nizance of ecpiitable cases, are those of the counties palatine of 
 Lancaster and Durham,* the Courts of the two Universities of 
 Oxford and Cambridge,'^ the Courts of the city of London,^ and the 
 Stannary Courts of Devon and Cornwall,'' and wherevei- it a))pears, 
 on tlu! face of tho bill, that any of these Courts has the i)roper 
 jurisdiction, either immediately or by way of ap])oal, the defendant 
 may demur to the jurisdiction of the Court of Chanoeiy.^ Thus, 
 to a bill of appeal and revic'w of a decree in the county palatine 
 of Lancaster, the defendant demui-red, because on the face of the 
 bill, it was apparent that the Court of Chancery had no jurisdic- 
 tion, and the demurrer was allowed,^ Demurrers of this kind, 
 howevei*, are very rare ; for the want of jurisdiction can hardly be 
 apparent upon the face of the bill, at least so conclusively as to 
 deprive the Court of Chancery of cognizance of the suit : it being 
 
 1 Heming v. Swiniiertnn, 2 I'liil. 79; 1 
 C. P. Conp. t. Cott. 386; 10 Jur. 907; 
 Nicholls V. Roe, 3 M. & K. 431, 442, over- 
 riiliugS. C. 5 Sim. 150; Londoiuierry :ind 
 Eiinisi^illen Railway Company v. Leisli- 
 man, 12 Beav. 42i, 429. As to awards, 
 see now 17 & 18 Vic. c. 125, §§ 3, 5-17; 
 and as to the present jurisdiction of the 
 Court of Chancery oTer awards, see Hard- 
 ing f. \\ ickliain, 2 .1. & H. 676; Smitli v. 
 Whitmore, 10 Jur. N. S. 65; 12 W. R. 244, 
 V. 0. W.; lO.Iur. N. S. 1190; 13 W. R. 
 2, L. JJ. ; 2 De G., J. & S 297; Wakefield 
 V. Llaneilj' Railway and Dock Co., 3 De 
 G., J. & S. 11; 11 Jur. N. S. 456; and see 
 Russell on Arbitration; and post, Chap. 
 XV. § 2, Difftrent Gn/umls (if Pleas ; Ch. 
 XI.,V. Slntutory Jicrisdiclwn. 
 
 2 See Storv Kq. I'l. § 490; Ld. Red. 125, 
 12C ; Mead v. Meriitt, 2 I'aige, 402. 
 
 3 Ld. Red. 151. For a Tabular View of 
 all the Courts of Equity in England and 
 Wales, and of the Courts of Appeal there- 
 from, see Trower on Debtor and Creditor, 
 474-485, 498. 
 
 < As to the Court of Chancery of Lan- 
 caster, see 13 & 14 Vic. c. 43; 17 & 18 Vic. 
 c. 82. liy the G & 7 Will. IV. c. 19, nnlc, 
 p. 6, the palatine jurisdiction of the county 
 of Durliain has been separated from the 
 bishopric, and translerred to the Crown ; 
 but the jurisdiction of the Courts still re- 
 
 mains. See Cox's Institutes, 584; Trower, 
 4S0; and see 21 & 22 Vic. c. 45. 
 
 s See 3 Bla. Com. 83; Geldart's Civil 
 Law, 153; and the Oxford University 
 Acts, 17 & 18 Vic. c. 81; 18 & 19 Vic. c. 
 36; 19 & 20 Vic. c. 31; 20 & 21 Vic. c. 25; 
 23 & 24 Vic. c. 23; 25 & 26 Vic. c. 26; 
 and Cambridge University Act, 22 & 23 
 Vic. c. 34, and Acts cited. 
 
 6 See I'ulling's Customs of London, 
 Chap. 13. Formerly the conntv palatine 
 of Chester, the principality of Wales, and 
 the Cinque Ports hail Courts of equitable 
 jurisdiction. Ld. Hed. 151; see awie, p. 7. 
 11 Geo. IV. & 1 Will. IV. c. 70, § 14; 18 
 & 19 Vic. c. 48; 20 & 21 Vic. c. 1. 
 
 ' It was formerly held, that the Stannary 
 Courts were only Courts of Law, and not 
 Courts both of Law and Equity. 1 relaw- 
 nev V. Williams, 2 Vein. 483; but see now 
 6 & 7 Will. IV. c. 106; 2 & 3 Vic. c. 58; 
 18 & 19 Vic. c. 32; Procedure in the 
 Stannaries, Inlroduclory Notice; Trower, 
 482; Cox's Institutes, 585. 
 
 ** The County Courts have now an equi- 
 table jurisdiction. 
 
 '■> .lennct v. Hisho[)p, 1 Vern. 184. B}' 
 17 & 18 Vic. c 82, tlie Lonls Justices and 
 the Chancellor of the Duchy are created 
 the Court of Appeal in Ch;inrery for the 
 county pnlatine; and see 13 & 14 Vic. 
 c. 43"; Trower, 480; Winstanley's Pra. 
 Chap. 1.
 
 DIFFERENT GROUXDS OF DEMURRER. 
 
 555 
 
 a rule that, where a Court is a Superior Coui-t of general jurisrlic- Ch.XIV.§2 
 
 tion, the presumption will be that nothing shall be intended to be " y ' 
 
 out of its jurisdiction that is not shown and alleged to be so.^ 
 
 The general way of objecting to the jurisdiction of the Court is How objec- 
 by plea; 2 and in Boberdeau r^Jious,^ in which a bill was filed for ^'o°t^'^«°! 
 delivery of ])Ossession of lands in St. Christopher's, Lord Hard- 
 wicke held, that the objection that the Court had no jurisdiction 
 over land in that island, although right in principle, was irregu- 
 larly and informally taken by demun-er, and should have been 
 pleaded. Lord Redesdale, however, appears to have been of 
 opinion, that the rule, that an objection to the jurisdiction should 
 be pleaded, and not be taken by demurrer, can only be considered 
 as referring to cases where circumstances may give the Chancery 
 jurisdiction, and not to cases where no circumstance can have that 
 effect; and that, where all the circumstances which would be 
 requisite in a ])lea to show that the Court has no jurisdiction are 
 shown in the bill a demurrer will Ue.* What those circumstances within what 
 are, will be stated when we come to treat of pleas to the juris- 
 diction.^ In the mean time, it may be observed, that if the objec- taken-' 
 tion on the gi-ound of jurisdiction is not taken in proper time, 
 namely, either by demurrer or plea, before the defendant enters 
 into his defence at large, the Court having the general jurisdiction 
 will exercise it,® unless in cases where no circumstances whatever 
 can give the Court jurisdiction, as in the case before i)ut, of a bill 
 of appeal and review from a decree in a county palatine; in which 
 case, the Court cannot entertain the suit, even though the defend- 
 ant does not object to its deciding on the subject.'' 
 
 time objec- 
 tion must be 
 
 1 Per Lonl Hardwicke, in Earl of Derbj' 
 r. Duke of Atiiol, 1 Ves. S. 204. 
 
 ^ L<1. n<i\. 102; Bank of I'.ellows Falls 
 V. Hut. & Hiir. Il.li. Co , 2S Vt. 470; Fre- 
 mont V. MiTcfd Mining Co., 1 McAll. C. 
 C. (Cnl.) 267. 
 
 8 1 Atk. 54.3. 
 
 * Ld. Red. Iil2, 15.3. In the case of 
 HendiT.^on r. Henderson, .3 Hare, 100, 110, 
 118, a demurrer was allowed on the ground 
 that the whole of the mattf-rs were in ques- 
 tion between the parties, and niiLfht have 
 been the .subject of adjudication in a suit 
 bclore the .Supreme Court of Newfound- 
 land. 
 
 6 Post, Chap. XV. § 2. 
 
 '"' I>lvinf,'st''n I'. Livingston, 4 John. Oh. 
 287; Uiiderhill i'. Van Cortlindt, 2 John. 
 Ch. 3*Jit; White P. Carpenter,2 I'aige,217; 
 Hank of JJ.Jh.w.s Falls i- Hut. & I'.ur. li K. 
 Co.. 2^ Vt. 470. (leneraliy, an objection 
 to the jurisfliclion cannot he taken at the 
 hearing. N'iles i'. \N'illiams. 24 Conn.27'J. 
 Where the want of jurisdiction ap[iear.s cm 
 the face of the hill, advaniafrt; should l)e 
 taken of it \>y demurrer. Nicholson v. 
 l'im,5()hlo(N.S.), 25; Kendrickv Whit- 
 ficl'l, 20 Geo. 379. 
 
 In Massachusetts, there is no jurisdiction 
 
 in Efinity to enforce a trust arising under 
 the will of a foreigner, which has been 
 proved and allowed in a foreign country 
 only, and no certified copy of wliicii has 
 been filed in the Probate Court there; and 
 the objection is properly taken by demur- 
 rer. Campbell •!>. Wallace, 10 Gray. 162; 
 Campbell r Sheldon, 13 Pick. 8; JNIay v. 
 Parker, 12 Pick. 34. So in any case where 
 there is no suflicicnt ground shown for the 
 interference of a Court of Iu]uitv. Story 
 K(\. PI. §§ 14, 34, 472; Foster i'. Swasev, 2 
 Wood. & M., 217; Fierpont v. Fowie, 2 
 Wood. & M. 23; Pakerv. Piddle, 1 Bald. 
 C. C. 411, 412. 
 
 In Maine, it. is said, tlnit, as the Court 
 has not general but limited juri-dirtion in 
 Equit}', it is necessary that the bill -bould 
 show upon its fiicc, that the Court has ju- 
 risdiction o( the subject-matter complained 
 of. This may be inf|uired into under a 
 special or general demurrer. Stcplienson 
 ?'. Davis, 56 .Maii;e, 74. 
 
 7 Ld. Ped. ir,3. In all bills in Kijuity 
 in the Courts of the L'nited .<laies, the 
 citizenship should appear on the fico of 
 tlie bill to entitle ilio Court to take ju- 
 risdiction, otherwise the cmusc will be 
 dismissed. Dodge v. Perkins, 4 Mason,
 
 556 
 
 DEMURRERS. 
 
 Cii. X1Y.§-' 
 
 Domiirror to 
 the porson : 
 
 extetids to 
 the wholo bill. 
 
 Demurrer to 
 the matter of 
 the bill. 
 
 I. Demurrer 
 to the 
 
 substance : 
 
 1. That plain- 
 tiff has no 
 interest 
 
 The objiH'tioiis Mris'mLi- iVoiu the |h'|-soii:i1 (lis;il)ility of the ])l:rm- 
 tiir, liave been :ih-e:uly diseussetl.^ All, tliorelufe, that need now 
 bo said npon the snbject is, tliat if any of tliese iiieapaeities ai)])ear 
 upon the faee of the liill, tlie defendant may demur. So, also, he 
 may, if the inea|>aeity is sueh only as ))revents the ))arty from 
 suiuLj alone, as in the case of an infant or a married woman, an 
 idiot or a lunatic: in Avliich cases, if no next friend or committee 
 be named in the bill, a demurrer will lie.- 
 
 This objection extends to the whole bill ; " and ailvantage may 
 be taken of it, as well in the case of a bill for discovery merely, as 
 in the case of a bill for relief: for the defendant, in a bill for dis- 
 co^•ery, being always entitled to costs, after a full answer, as a 
 matter of course, would be materially injured by being compelled 
 to answer a bill by persons whose property is not at their own 
 disjKisal, and who are, therefore, in(;a])able of jiaying the costs.^ 
 
 We come now to the consideration of demurrers arising upon 
 objections appl}dng more specifically to the matter of the bill ; 
 these may be either : I. To the substance ; or, II. To the form in 
 which it is stated. 
 
 I. Demurrers to the substance are : 1. That the plaintiff has no 
 interest in the subject ; 2, That although the plaintiff has an in- 
 terest yet the defendant is not answerable to him, but to some 
 other ])erson ; 3. That the defendant has no interest ; 4. That the 
 plaintiff is not entitled to the relief whicli he has prayed ; 5. That 
 the value of the subject-matter is beneath the dignity of the Court; 
 6. That the bill does not embrace the whole matter ; 7. That there 
 is a want of proper parties ; 8. That the bill is multifarious, and 
 impro])erly confovmds together distinct demands; 9. That the 
 plaintiff's remedy is barred by length of time; 10. The statute of 
 frauds ; 11. That it appears by the bill, that there is another suit 
 depending for the same matter.^ 
 
 1. In a former section, in which the matter of a bill has been 
 discussed, the reader's attention has been directed to the necessity 
 of showing that the plaintiff:' has a claim to the thing demanded. 
 
 435; Story Eq. PI. § 492. The want of 
 such iin averment ni.iy l)e taken advan- 
 tafje of by demurrer; Story Eq. I'l. § 492; 
 and wliere the want of jurisdiction is ap- 
 parent on the face of the proceedings, from 
 a defective statement of the citizenship of 
 the different parties, it is fatal at all times, 
 and may be insisted on by way of motion 
 or otherwise, in any stage of the cause, and 
 even upon ap|)cal. Dodge v. Perkins, 4 
 Mason, 437; see also Story Eq. PI. § 26 
 note, §§ 10, 34, 492; Bingham v. Cabot, 
 3 Dali, 3S2; .Jackson v. Asliton, 8 Peters, 
 148; Hughes v. .Jones. 2 Md. Ch. Dec. 178; 
 Niles V. Williams, 24 Conn. 279; Ketclmm 
 c. Driggs McL'-an. 13. 
 1 Ante, Chap. III. 
 
 2 Ante, Chap. JIJ. §§ G, 7. 8. A married 
 woman may, however, under certain cir- 
 cumstances, sue without a next friend, and 
 an idiot or lunatic by his next friend, with- 
 out a c'iminittue; see ante, pp. 82, 86, 111. 
 A lunatic must be made a part}-, though 
 his connnittee is so, or a demurrer lies. 
 Harrison v. Howan, 4 VVasli. C. 0. 202. 
 But on a demurrer for his omission, leave 
 will be granted to amend. Berry v. Kogers, 
 2 B. Mon. .308. 
 
 3 Gilbert v. Lewis, 1 De G., J. & S. 38; 
 9 Jur. N. S. 187. 
 
 4 See post, Chap. XXXIV. § 2, Bills of 
 Discijvery. 
 
 6 See Davis v. Hall, 4 .Jones Eq. (N. C) 
 403.
 
 DIFFERENT GROUNDS OF DEMURRER. 
 
 557 
 
 or such an interest in the subject as gives him a right to institute 
 a suit concerning it.^ 
 
 2, 3. The same section also exhibits the nature of the privity 
 which it is necessary the bill should aver to be existing between 
 the plaintiff and defendant, and the application of the rule which 
 requires that the bill should show that the defendant has an intei-- 
 est in the subject-matter of the suit. It also points out the excep- 
 tions to the rule, in certain cases in which persons, who have no 
 interest in the subject-matter, may be made parties for the pur- 
 pose of eliciting discovery from them, and in which they are pre- 
 vented from availing themselves of a demurrer, to avoid answering 
 the bill.- 
 
 4. It has been before stated ^ as one of the requisites to a bill, 
 that it should pray proper relief: to which may be added, that if 
 for any reason founded upon the substance of the case, as stated 
 in the bill, the plaintiff is not entitled to the relief he prays, the 
 defendant may demui*. Many of the grounds of demurrer, already 
 mentioned, may perhaps be i-eferred 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, either in the whole or in part, the defect 
 thus appearing on the face of the bill is a sufficient ground of 
 demurrer.* 
 
 It is to be observed, in this place, that the question upon a de- 
 murrer of this nature is, frequently, not whether, u])on the case 
 made by the bill, the plaintiff is entitled to all the relief prayed, 
 but whether he may, under the prayer for general relief, be en- 
 titled to some relief® The question, how far the defects in the 
 relief i)rayed in the prayer for special relief may be supj)lied under 
 tlie prayer for general relief, which forms part of every bill, has 
 been before discussed ; ® it is only necessary now to remind the 
 reader, that such relief must be consistent with the special prayer, 
 as well as with the case made by the bill. 
 
 Cii.XIV.§2. 
 
 4. That plain- 
 tiff is not 
 entitled to the 
 relief prayed ; 
 
 effect of 
 prayer for 
 general relief. 
 
 1 Ante, p. 814; At will v. Ferrett, 2 
 BIat.:li. C. C. S'J; ILiskell v. Hilton, 30 
 Maine, 419; Ld. lied. 154, 158. If, of sev- 
 eral iilnintiffi, some have an interest in 
 the matter ol' the suit, and otlicis have no 
 intereHt in it, but are nierel}' the agents 
 of tiieir co-plaintiffs, a general demurrer 
 to the whole liill is a good di;fence. King 
 of .Spain v. .Maciindo, 4 Knss. 'Z2i; and 
 see (Jiiffr. I'liitett, iO. 242; Cl;irkson v. Dc 
 Feyster, .'i I'dge, 331>; Dias «. ISouchaud, 
 10 I'aije, 445. 
 
 2 Ante. p. 322. 
 
 8 Ante. pp. 325, 377, 378. 
 
 * See Uollin* v. Forbes, 10 Cal. 299. A 
 demurrer f-r wnnt of ctpiit}' cannot be 
 sustained iinlc-s the C'lurt is sitisfied tiiat 
 no di-c'»verv or proof profieriy 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. 
 Blecker v. 15inj;ham,3 I'aige, 246; Morton 
 V. Grenada Academies, 8 Sm. & M. 773; 
 Clark V. Davis, Marring. Ch. 227; Dike t;. 
 Greene, 4 K. 1. 285 ; Spnigue v. l.'liodcs, 4 ib. 
 301. See the form of a general demurrer 
 for want of equitv, Willis, 401 ; Story Kq. 
 I'l. § 483(3de<l.),"note(4); post, Vol." 111. 
 
 6 Ante. ]). 378 ; Hartley i: Kussrll, 2 S. 
 & S. 244, 253. A demurrer to the whole 
 bill does not lie merely because thepraj'er 
 for relief is too broad. Whitbeck r. lulgiir, 
 2 Harb. Ch. 100. 
 
 Ante, p. 378. The fact th:\t the plain- 
 tiff does not ask for the proper rv.Vw.f, or 
 asks for inconsistent relief, is not ground of 
 demurrer. Connor i;. Hoard of ICducation, 
 10 Minn. 439.
 
 558 
 
 DEMURRERS. 
 
 Cn.XIV. 5 2. 
 
 B. That hill 
 does not I'ln- 
 bnice tho 
 whole matter. 
 
 7. For want 
 of parties. 
 
 5. It h;is boon bof'oro obsorvod, tliat ovory bill must bo for a 
 iiiattor ofsiiilioiont value: othorwiso, it will not be cousistcnt with 
 (he dignity of the Court to entertain it.' TliQ usual method of 
 taking advantage of an objection of tliis nature is, as we have 
 seen,- by motion to take the bill oft" the file. There is no doubt, 
 liowever, that if the objeetion ajjjiears uj)on the face of the bill, a de- 
 murrer, upon the ground of inadequacy of value, will be held good." 
 
 G. A bill must not only be lor matter of a sufficient value, but 
 it must be for the whole matter. It is not, however, necessary to 
 discuss here the principle and apjilication of this rule, the reader's 
 attention having been already fully called to it.* All that need 
 be said is, that if it appears by the bill that the of)ject of the suit 
 does not embrace all the relief which the plaintifl" is entitled to 
 have against the defendant, under the same representation of facts, 
 it will be liable to demurrer, unless it comes within any of the 
 excejitions before pointed out.^ 
 
 7. The question : who are the proper parties to be brought be- 
 fore the Court, for the purpose of enabling a Court of Equity to 
 do complete justice, by deciding upon and settling tlie rights of all 
 persons interested in the subject of the suit, so as to make the per- 
 formance of the order of the Court perfectly safe to those who are 
 compelled to obey it, and to prevent future litigation, lias been 
 before so fully discussed,^ that nothing remains to be said upon it 
 here, further than to remind the reader, that wherever a want of 
 parties appears on the face of a bill, it is a cause of demurrer : '' 
 unless a sufficient reason for not bringing them before the Court is 
 suggested, or unless the bill seeks a discovery of the persons inter- 
 
 1 Ante, p. 328. 
 
 2 Ante, p. 329. 
 
 3 (Jair V. Iiiglehart, 3 Ohio (N. S.), 457. 
 If it appeiir (jii the face of the bill, that 
 the matter in di.^pute, exclusive of costs, 
 does not exceed the amount to which the 
 jurisdiction of tho Court is limited, the 
 deleiioaut may eiilier demur, or move to 
 have the Oill dismissed with costs; or, if it 
 does not appear on tlie face of the bill, it 
 ma}' be pleaded in bar of the suit. Smets 
 V. VVilliains, 4 Paiyc, 304; iMcKhvain v. 
 Willis, 3 Paige, 50o; S. C. on Appeal, 9 
 Wendell, o4b; Schroeppel v. Redtield, 5 
 I'aige, 245 ; Bradt v. Knkpatrick, 7 Paige, 
 62. By " exclusive of costs " is meant the 
 costs of ilie suit in Chancery. Van Tyne v. 
 Bunce, 1 Edw. Ch. 5fc3; see further, Moore 
 V. Ly tt le, 4 John. Cli. Ifc3 ; FuUerton v. Jack- 
 son," 5 ib. 270; iJouw v. Sheldon, 2 Paige, 
 303; Vredenburg v. Johnson, 1 Hopk. 1P2; 
 Mitchell V. 'J'ighe, 1 Hopk. 119. 
 
 * Ante, p. 330. 
 
 5 Anlt, p. 330. 
 
 6 Aide, Chap. V.; Ld. Red. 164 elseq.; 
 Story Eq. PI. §§ 72, 230. 
 
 1 Ld. Red. 160; Story Eq. PI. § 541; 
 Fambam v. Clements, 51 Manie, 426, 429; 
 
 Elmendorft'. Taylor, 10 Wheat. 152; Crane 
 V. Doming, 7 Coim. 387 ; Mitchell v. Lenox, 
 2 Paige, 280 ; Kobiiison v. Smith, 3 ib. 
 222 ; see the form of a demurrer tor want 
 of parties, W'illis, 402 and note {b) ; 2 Eq. 
 Drafts, 81 ; Edwanis on Parties, 275 ; Story 
 Eq. PI. {3d ed.) § 543, note (4); post. Vol. 
 III. A demurrer for want of parties must 
 show uliu are the proper parties; not in- 
 deed by name, ibr that might be impossi- 
 ble; but in such manner as to point out to 
 the plaintiff the olijection to liis bill, and 
 enable him to ameiid by adding the proper 
 parties. Ld. lied. 180, 181 ; Attorney- 
 General V. Poole, 4 M. & C- 17; Story Eq. 
 PI. § 543; ante, 288; Kobinson v. Smith, 3 
 Paige, 222. 
 
 It has, however, been held, that upon a 
 demurrer to a bill for want of equity, the 
 objection thtit the bill is defective for want 
 ot parties, may well be taken. Vernon v. 
 Vernon, in Chancer3-( England), Feb., 1837, 
 cited Story Eq. PI. § 543 (3ded.), note (4). 
 So the objection maj- be taken in the same 
 wa3', if persons are improperly made plain- 
 tills. Gething v. Vigurs, betiire the Vice- 
 Chancellor of England, Nov., 1836, cited 
 Story Eq. I'l. ubi supra.
 
 DIFFERENT GROUNDS OF DEMURRER. 
 
 559 
 
 osted in the matter in question, for the purpose of making them Ch.XIV. §2, 
 
 parties ; ^ but it is no answer to a demurrer that the addition of 
 
 the party wouhl render the bill multifarious.'- In consequence of 
 
 the alterations in the rules of the Court as to parties, before pointed 
 
 out, demurrers for want of parties are now of comparatively rare 
 
 occurrence.^ 
 
 8. The subject of multif iriousness has been already discussed ; * 
 and it need only be added, that a bill is demurrable on this ground ; 
 and that a demurrer for multifariousness goes to the whole bill, and 
 it is not necessary to specify the particular parts of the bill which 
 are multifarious.^ 
 
 9. In determining Avhether the length of time which has elapsed 
 since the plaintiff's claim arose is a bar to the relief which he asks. 
 Courts of Equity have considered themselves bound by the Statute 
 of Limitations, 21 Jac. I. c. 16, as to all legal titles and demands : 
 although suits in Equity are not within the words of that statute ; ® 
 and as to all equitable titles and demands, they act in analogy to 
 the statute." The modern Statutes of Limitations,* ^Pplj? for most 
 purposes, to suits in Equity, as well as actions at Law. The objec- 
 tion of lapse of time was fbiTnerly considered a proper ground for 
 a plea, and not for a demurrer;^ and in Gregor v. 3Iolesicorth,^° 
 
 8. For multi- 
 fariousness : 
 
 goes to the 
 whole bill. 
 
 9. For length 
 of time. 
 
 1 Ld. Red. 180; ante, p. 288. 
 
 2 Lumbsden v. Fraser, 1 M. & C. 589, 
 602; and as to amending in such cases, see 
 S. C. ; Attorney-General v. The Merchant 
 Tailors' Company, 1 M. & K. 189, 191, 
 and ante, p. 2S9. 
 
 " For forms of demurrers for want of 
 parties, see 2 Van ilcy. 81; ami pi>st, Vol. 
 ill. In Way v. Br^igaw, 1 C. E. Green 
 (N. .J.), 213, one ground of demurrer was 
 that the bill shouM have been for the bene- 
 fit of all I he creditors of the defendnnt 
 jointly witli the plaintilT. The Chtmcellor 
 said, " The same objection was raiseii, 
 under similar circumstances, in E Igell v. 
 Ilaj'wood, a Afk. 357. IJut Lord llard- 
 wicke said, *Tlie person who first sues 
 has an advantage by his legal ciiligence in 
 all cases. The plaintitl', by his judgment 
 and execution at law, and by his diligence 
 in this (joui t, has obtained a position which 
 entitles him to priority over tiie orlier 
 cre(iit<irs of the deb'or. lie does not stand 
 in the attitude of a pi lintiff in an ordinary 
 creditors' bill. It doet n^t appear that 
 there is any creditor of equal degree with 
 the plnintdf. ' " Clarkson v. Oepeyslcr, 3 
 I'aige, 320; I'nrmelee v. Egan, 7 I'aige, 
 f!10 ; Grosvonor v. Allen, 'J Paige, 74 ; 
 Karnham r. ("ampbell, 10 I'aige, 598. 
 
 * Ante, p. 333 tl sen. ; see Storv E(|. IM. 
 5§ 530-540 : Graves »;. Fresh, 9 GilliSi .1. 280 ; 
 Hryan v. Ulythe, 4 Blackf. 331; (Joe v. 
 Turner, 6 (;i)nn. 80 ; Mulock v. ^IuIoc'k, 1 
 Edw. 14; Thurmnn i;. .Shelton, 10 Verger, 
 383; Eninns r. lOinans, 1 Mc(Jiirter( N. .1.), 
 1 14. A demurrer to a bdl for multifuriuus- 
 
 ness should be taken before the case comes 
 to the Appellate Court. AVellborn v. Tiller, 
 10 Ala. 305. 
 
 ^ East India Company V. Coles, SSvvanst. 
 142, n. ; see Dimmock v. Bixbv, 20 Pick. 
 368; Gibbs v. Cla?gett, 2 Gdl & J. 14; 
 Boyd I'. Hoy t, 5 Paige, 05 ; White v. White, 
 
 5 Gill, 359. For forms of demurrers for 
 multifariousness; see 2 Van Uev. 79, 80 ; 
 and post. Vol. III. 
 
 c llovenden v. Lord Annesley, 2 Sch. & 
 Lef. 030, 031 ; Honv v. Hony, 1 S. & S. 568, 
 580. 
 
 7 See Bond v. Hopkins, 1 Sch. & Lef. 
 428 ; Hovenden v. Lord Annesley, ubi sup. ; 
 Stackhouse v. Barnston, 10 Ves. 460 ; l-Jx 
 parte Dewdncy, 15 Ves. 496 ; Beckturd v. 
 Wade, 17 Ves. 96 ; Lord Cholmondeley v. 
 Lord Clinton, 2 .]. & W. 1, 101, 192. 
 
 » 3 & 4 WilL IV. cc. 27, 42; 7 Will. IV. 
 
 6 1 Vic. c. 28 ; 19 & 20 Vic. c. 97, §§ 9, 
 10, 11; 23 & 24 Vic. c. 38, § 13; see, as to 
 these .Acts, Sugd. li. P. Stat. Chap. I. 
 
 " If the lapse of the period of limitation 
 appears with certainty on the f.ice of tho 
 bill, ilie objection may be taken by de- 
 murrer. Deloraine v. Browne, 3 Bn). C. 
 C. (Perkins's ed.) 633, Mr. Belt's note (I> 
 430, Mr. Eden's note (7), and cases cited ; 
 Wisner v. Barnet, 4 Wash. C. C. 631; 
 Dunlapv. (Jibb-^, 4 Yerger, 94; l'"oster «. 
 llndgMiu, 19 Ves. 180; Iloare w. Peek, 6 
 him. 51 ; Story Eq. PI. §§ 484, 751, aud 
 
 '" 2 Ves. S. 109 ; see also Apgas v. 
 Pickerel!, 3 Alk.225; Deloraine u. Browne, 
 3 Bro. C. C. 633, 046.
 
 5G0 
 
 DEMURRERS. 
 
 Cii. XIV.^-J. 
 
 Effect of 
 Statute of 
 Limitations. 
 
 Where no 
 positive limi- 
 tation ot'time, 
 question is 
 only whether, 
 upon the 
 facts, the 
 Court ■will 
 infer acquies- 
 cence. 
 
 I.onl llai-dwifko ivfusod to allow a donuirrer of this nature, alloii;- 
 in»; as his reason, tliat several exceptions might take it out of the 
 length of time, as infancy, or coverture, Avhich the l><'H'ty should 
 have the advantage of showing, but which cannot l»e done if de- 
 murred to. This, however, can liardly be a sufficient reason for 
 the distinction in this case between a ])lea and a demurrer, as the 
 plaintiff, if he lias any reason to allege to take his case out of the 
 bar, arising from the length of time, should show it by his bill ; 
 and it is now clearly the rule of the Court, that the Statute ot 
 Limitations, or objections in analogy to it, upon the ground of 
 laches, may be taken advantage of by way of demm-rer, as well as 
 
 Where there is no positive limitation of time, the question 
 whether the Court will interfere or not depends upon Avhether 
 from the facts of the case, the Court will infer acquiescence, or 
 confirmation, or a release. Such inference is an inference of fact, 
 and not an inference of law, and cannot be raised on demurrer : ^ 
 
 notes ; Hardy r. Reeves, 4 Sumner's Vcs. 
 4(36, note (6); FreaUe v. Cninfclt, 3 M. 
 & C. i'M\ Tyson v. I'ole, 3 Y. & C. 2CC; 
 Humbert v. Uector, &c.. Trinity Church, 7 
 Paiire, 195; Van Hook v. Whitlock, 7 
 Paige, 373; S. C. 24 Wend. 587; Coster r. 
 iAIurray, 5 .John. Ch. 521 ; Waller v. De- 
 mint, i I);\iia, 92; see M'Dowl v. Charles, 
 6 .tohn. Ch. 132. 
 
 1 Ld. Red. 212, n. ; Saunders v. Hord. 1 
 Ch. Rep. 184 ; Jenner v. Tracey, 3 P. 
 Wm?. 287, n.; Hovemien v. Lord Anneslej', 
 2 Sch. & i>ef. 607, 637 ; Foster v. Hoilgson, 
 19 V^es. 180; Hoare t'. Peck, 6 Sim. 51; 
 Hampton v. i5irchall, 5 Beav. 67, 76 ; 
 Prance i: Sympson, Kay, 678, 680; Smith 
 V. Fox, 6 Hare, 386, 391; liolfe v. Gregorv, 
 8 Jur. N. S. 606; 10 W. R. 711, V. 0. K. ; 
 see Jlarsh v. Oliver, 1 McCarter (N. .).), 
 259; Aclierley v. Roe, 5 Sumner's Ves. 
 565, Perkins's note (6), and cases cited, 573, 
 note (a), and cases cited; Stockhouse v. 
 Barnstr)n, 10 Sumner's Ves. 453, Per- 
 kins's notes (c) and (r^), and cases cited; 
 Hardy r. Reeves, 4 Sumner's Ves. 465, 
 notes (rt) and (6); Mitford Eq. PI. by 
 Jeremy, 272, 273 (5tb Am. ed.) , note (1) 
 and ca-es cited; Piersont). David, K'larke 
 (Iowa), 23; Sublette v. Tiniiev, 9 Cal. 428; 
 Bangs t\ Hiill, 2 Pick. (2d ed. )'372, note (1), 
 and ciises cited; Harris v. Mills, 28 HI. 44. 
 In Massachusetts, the Statute of Limita- 
 tions operates, in cases where it applies, 
 ex priijjriu vi(/ore, in Equity as well as at 
 Law. Farnam v. Brooks, 9 Pick. 243; 
 Johnson V. Ames, 11 Pick. 182 ; Bowman 
 V. Wathen, 1 How. U. S. 189. In Ken- 
 tucky, the Statute of Limitations is a bar 
 in lujuitv. M'Dowell v. Heath, 3 A. K. 
 M;irsh. 223 ; Beckenbridge v. Churchill, 3 
 J. .1. Mar-h. 15. It seems, however, that 
 it does not apfdy in luliilcm vtr/jis, but has 
 been adopted as reasonable and consistent. 
 Crain v. Prather, 4 J. J. Marsh. 77. The 
 
 principles of the Statute of Limitations, a.s 
 applied to suits in F^cpiity, are recognized 
 by the Revised Statutes of New York. 
 Before such recognition, they received the 
 same application. Kane v. Bloodgood, 7 
 John. Ch. 90 ; StMlford v. Hrvan, 1 Paige, 
 239; Bertine v. Varian, 1 Fxiw. Ch. 348; 
 see 2 Rev. Stat. N. Y. 301; and Van Hook 
 V. Whitlnck, 3 Paige, 409. In New York, 
 aside from the Revised Statutes, the bar 
 would seem to operate by the discretion 
 of the Court. Jlurra}- w. Coster, 2 .John. 
 583 ; Arden v. Arden, 1 John. Ch. 316. 
 See the same doctrine lield by F^lmendorf 
 V. Taylor, 10 Wheat. 152; Coulson v. 
 Walton, 9 Peters, 82; and see Robinson v. 
 Hook, 4 Mason, 150. In Connecticut, 
 where a debiy has been such as to be a bar 
 at Law, it will be so in Equity. Banks v. 
 Judah, 8 Conn. 145. I'he same principle 
 exists in the Courts of the United States. 
 Elmendorf v. Taylor, 10 Wheaton, 152; 
 Miller v. M'lntyre, 6 Peters, 61. In Maine, 
 the Statute of Limitations operates on suits 
 in Equity as well as on actions at Law. 
 Denny v. Oilman, 26 Maine, 149, 154; 
 Chapman v. Butler, 22 Maine, 191. Wheth- 
 er this can apply to cases purely of equita- 
 ble jurisdiction, see Robinson v. Hook, 4 
 Mason, 150 ; Murray v. Coster, 2 John. 583 ; 
 Kane v. Bloodgood, 7 John. Ch. 90; Arm- 
 strong V. Campbell, 3 Yerger, 232; Bigelow 
 V. Bigelow, 6 Ohio, 97. In case of a direct 
 trust, no length of time bars the claim be- 
 tween the trustee aiid cestui que trust. Cook 
 V. Willi;nns, 1 Green Ch. 209; Baker v. 
 Whiting, 3 Sumner, 470 ; Armstrong v. 
 Campbell, 3 Yerger, 201 ; Overstreet 
 V. Bate, 1 J. J. Marsh. 370; Trecothick v. 
 Austin, 4 Mason, 16, and other cases cited 
 in Perkins's note (i) to Aclierley v. Koe 
 5 Sumner's Ves. 573. 
 
 2 Cuthbert v. Creasy, 6 Mad. 189.
 
 DIFFERENT GROUNDS OF DEMURRER. 
 
 561 
 
 because a defendant has no right to avail himself, by demurrer, of Ch.XIV.§2. 
 an inference of fact upon matters on which a jury, in a Court of ' y ' 
 Law, would collect matter of fact to decide their verdict, if sub- 
 mitted to them, or a Court would proceed in the same manner in 
 Equity.^ 
 
 10. The non-compliance with the requirements of the Statute of lo. The 
 Frauds may also be a ground of demurrer; for there can be no frauds. 
 doubt but that a bill may contain such statements as to entitle a 
 defendant, by general demurrer, to take advantage of the want of 
 signature to an agreement : because it might appear clear that the 
 plaintiff was not entitled to the relief he asked.^ It is, however, 
 
 more usual to plead this statute, as it is seldom that the bill dis- 
 closes every tiling necessary for the defence/^ 
 
 11. If it appears, by the bill, that another suit is pending relat- ii- Another 
 ing to the same matter, a defendant may demur. Such a demurrer, foj game 
 hoAvever, will not hold, unless it appears, by the bill, that the suit matter. 
 already depending will afford to the plaintifl' the same relief as he 
 
 would have l)een entitled to under the bill which is the subject of 
 the demurrer.* 
 
 II. The grounds upon which a bill may be demurred to, by II. Demurrer 
 reason of a deficiency in matters of form, are, as we have seen, as 
 follows.^ 1. Because the plaintiff's place of abode is not stated.^ 
 
 to the form. 
 
 J Ld. Red. 213. A demurrer would un- 
 doubtedly lie to n bill for the redemption 
 of a mort^iige, after a great length of time 
 had elapsed, if the bill wa.s so framed as lo 
 pre.sent the objection without any attend- 
 ant circumstances to obviate it. Story Kq. 
 Fl. § 503, and ca.ses in note. As to the 
 length of time, which will b;ir a redemp- 
 tion of a mortf^ape, see Acherley v. Roe, 5 
 Sunmer's Vcs. iil'i, Perkins's note ('O 
 and cases cited ; Hardy v. Reeves, 4 Sum- 
 ner's Ves. 4ti*i, note («); Trash v. White, 
 .3 IJro. C. C. (I'erkins's ed.) 2'.>1 ; note ("), 
 and cases cited; Phillips v. Sinclair, 20 
 Maine, '2'VJ. 
 
 In reference to the lengtli of time which 
 will l>ar a bill tor an account, see Acherley 
 r. Roe, 5 Sumner's Ves. 0H5, Perkins's 
 note (Ij), and cases cited; Stackhouse v. 
 Barn.ston, 10 iO. 453, note {d), and cases 
 cited. 
 
 •^ Per Lord Langdale in Field v. Ilutchin- 
 '^"n, 1 IJeiiv. eOO; 3 Jur. 7iJ2; see also 
 lli)ward V. Okeover, 3 Swanst. 421, n. ; 
 liarkworth v. Yoiinj;, 4 Drew. 1 ; 3 .)ur. N. 
 S. 34; W.io.l r. iMidgley, 5 De G , M. & 
 (J. 41; Middlelironk r. i'.romley, !) .lur. N. 
 S. t;i4; II W. 1!. 712, V. (J. K.; Davi.sr. 
 Ottv, 10 .(ur. N. S. r,W, M. R. ; .33 lieav. 
 f.4i/; 2 I).- <i., .). & S. 23« ; Story Kq. PI. 
 § 503; Mcach r. Stone, 1 l>. < hip'. Wl. In 
 a suit for specific performnncc of a contract 
 in rHJatiiin to Imu'I, if the a;.'r<'emeiit a])- 
 pears in the bill tf) be <)?•'(/, unci no facts iire 
 alleged to take the case out of the Statute 
 
 VOL. I. 
 
 of Frauds, the defendant may demur to 
 the bill. Cozine r. Graham, 2 Paige, 177; 
 Walker v. Locke, 5 Gush. 90, 93. But if 
 the agreement does not appear in the bill 
 to be aral, the proper course to take advan- 
 tage of the Statute of Frauds is by plea or 
 answer. Cranston v. Smith, It. 1. 231 ; 
 Dudley v. IJachelder, 53 Maine, 403, 406. 
 If it is stated generally' in a bill that an 
 agreement or contract was made, the Court 
 will presume it was a legnl contract until the 
 contrary appears; and the defendant must 
 either plead the fact, that it w:is not in 
 writing, or insist upon that defence in his 
 answer. Dudley v. liachelder, 53 Maine, 
 403, 406 ; Farnham v. Clements, 51 Maine, 
 426. 
 
 8 For form of demurrer in this case, see 
 Vol. III. 
 
 * Law V. Rigbv, 4 Bro. C. C. 60, 63; and 
 sec pust, Chap. W., Picas ; see also Pear- 
 eth V. Peareth, .lohn. 58 ; 5 Jur. N. S. 60 ; 
 Singleton i'. Selwyn, 9 ,lur. N. S. 1149; 12 
 W. R. 98, V. CJ. \V'. As to demurrers on 
 the ground of res judicata, see Waine v. 
 Crocker, 10 W. if. 204, L. J.I.; 3 De G., 
 F. &.I. 421. 
 
 Story Ivj. PI. §§ 528. 520, and notes; 
 Ld. Ked. 206. A demurrer will not hold 
 to an irregularity of i)ractic(^ in rci;ard to 
 th(! bringing or liling of a bid, suggesting 
 matti'rs of tiict wliidi do not otherwise aj)- 
 pear bv thr bill Talliuadgc i'. Lovett, 3 
 VAw. Ch. 563. 
 
 Ante, p. 357; The Winnipiseogce Lake 
 
 3G
 
 562 
 
 DEMURRERS. 
 
 Cii.XIV. 5; 
 
 Demurrer to 
 discovery : 
 
 is now of rare 
 occurrence. 
 
 Grounds of 
 demurrer 
 to the 
 discovery ; 
 
 '2. In'caiisi' tlu> llicts cssi'iitial to tlu' jilainlilV's riu'lil, and within 
 his own knowloili;o, nro not alK'nod ])ositivoly.' 3, Because the 
 bill is lU'tii'iont in certainty.'- 4. liecause the phiintitl" does not, by 
 liis bill, otlcr to do equity where the rules of the Court require that 
 he should do so ; ^ or to waive })cnaltios or Ibrleitures, where the 
 plaint ill' is in a situation to make such Avaiver.* To these may be 
 added : 5, The Avant of counsel's signature to the bill;^ and 6. The 
 absence of the ])ropcr affidavit, in those cases in wliich the rules of 
 tho Court require that the plaintift''s bill should be accompanied by 
 one." 
 
 The grounds of demurrer before pointed out npply to the relief 
 prayed by the bill, and not to the discovery, further than as it is 
 incidental to the relief It has, however, been stated* that there 
 are cases in which a defendant may demur to the discovery sought 
 by the bill : although such demurrer will not extend to preclude 
 the plaintiff from having the relief prayed, ])rovided he can estab- 
 lish his right to it by other means than a discovery from the de- 
 fendant himself. 
 
 In consequence of the changes which have taken place in the 
 practice of the Court of Chancery, demurrers to discovery are now 
 of rare occurrence (the objection being almost always taken by 
 answer) ; ^ but in determining the question whether a party is 
 bound to give the discovery sought by the other side, the Court is 
 guided by the same rules as it formerly acted on in allowing or 
 overruling demurrers to discovery. These rules (which we shall 
 now proceed to consider), therefore, still remain of importance. 
 
 Demurrers to discovery may be arranged under the following 
 heads :^° I. That the discovery may subject the defendant to 
 pains and penalties, or to some forfeiture, or something in the 
 nature of forfeiture. II. That, in conscience, the defendant's right 
 is equal to the plaintiif' s. III. That the discovery sought is im- 
 
 Co. V. Young, 40 N. H. 42 ; see Howe v. 
 Harvey, 8 Paige, 73. It is not a ground of 
 demurrer tliat the plaintitf omits to state 
 his occupation, or iuldition. Gove v. Pet- 
 tis, 4 Sandf. Ch. 403. 
 
 '■ Ante, p. 300; on this head, see Smith ■». 
 Kaj', 7 H. L. ('a. 750, whicli decided that 
 the point must be raised on demurrer. 
 
 2 Ante, pp. 368, 371, 372. 
 
 3 Ante, p. 38.5. 
 
 * Ante, pp. 386, 387. 
 
 6 Ante, ]>. 312; see Graham v. Elmore, 
 Harring. Ch. 265. Hut in Gove v. Pettis, 
 4 Sandf. Ch. 403, it was held, that a de- 
 murrer could not be taiteii for an omission 
 of the signature of the solicitor or counsel 
 to the bdi, but that it is a fit sul>ject for a 
 motion to take the bills from the files of 
 the Court. 
 
 6 Jb. p. 3C0; Gove v. Pettis, 4 Sandf. 
 
 Ch. 403. The defendant is not bound to 
 look beyond the copy of the bill, which is 
 served on his solicitor; and if that docs 
 not contain the rer|ui>itc affidavit or verifi- 
 cation to give the i'ourt jurisdiction of the 
 case, he may demur to the bill on that 
 ground. Lansing v. Pine, 4 Paige, 364. 
 
 T A demurrer will be allowed to a bill 
 of discovery in aid of the defence to a suit 
 in & foreign Court. lieiit v. Youn?, 9 Sim. 
 180; but see c(j»<7Y(, jMitcliell v. Smith, 1 
 Paige, 287; sw. i)ost, J-iills of Discovery. 
 
 8 Ante. p. 548; see Metier f. Metier, 3 C. 
 E. Green (N. .J.), 270; S. C 4C.E. Green 
 (N.J.), 457. 
 
 Ord. XV. 4; see post. Chap. XVII., 
 Answers, and see 15 & 16 Vic. c. 86, §§ 10, 
 12. 
 
 1" For form of demurrer to discovery, 
 sec Vol. III.
 
 DIFFERENT GROUNDS OF DEMURRER. 
 
 563 
 
 forfeiture : 
 
 material to the relief prayed. IV. That the discovery would be Ch.XIV.§2. 
 
 a breach of professional confidence. V. That the discovery relates ■- y ' 
 
 only to the defendant's case. VI. That a third party has an in- 
 terest in the discovery, and ought not to be prejudiced. VII. 
 That the discovery might be injurious to public interests. 
 
 I. We have before seen, that in cases where the plaintiff is the i. That it will 
 person who is entitled to the advantage of the penalty, or of the f^'ant'to' 
 forfeiture, to which the defendant would render himself liable by penalty or 
 making the discovery sought, he may olniate a demurrer by ex- 
 pressly waiving his right to the penalty or forfeiture in his bill : ^ 
 the effect of which waiver is, to enable the defendant, in case the 
 plaintiff should sue him for the penalty, or endeavor to take ad- 
 vantage of the forfeiture, to apply to the Court for an injunction 
 to restrain him from proceeding.'-^ But where the forfeiture or 
 penalty is not of such a nature that the plaintiff can, by waiver, 
 relieve the defendant from the consequence of his discovery, a de- 
 murrer will hold,^ for it is a general rule, that no one is bound to Rule, that 
 answer so as to subject himself to punishment, in whatever manner "'^^'^ppHgd to 
 that punishment may arise, or whatever may be the nature of that subject him- 
 punishment : whether it arises by the Ecclesiastical Law, or by the ^jeut" 
 law of the land.'* This rule is not confined to cases in which the 
 discovery must necessarily subject the defendant to pains and 
 penalties, but it extends to cases where it may do so.^ If, therefore, 
 a bill alleges any thing which, if confessed by the answer, may sub- 
 ject the defendant to a criminal prosecution,^ or to any particular 
 ]>onalties, as maintenance," champerty,® simony,^ or subornation of 
 ])erjury,^" the defendant may object to the discovery," In the ap- 
 
 1 Atk. 539; 
 
 where it 
 cannot be 
 waived. 
 
 1 Ante, pp. 386, 387, and note. For form of 
 demurrer, where the penalty or forfeiture 
 is not waived, see 2 Van Hey. 82. 
 
 - Antt, \i. ob7. 
 
 8 Htorv V.i\. I'l. § 575; March r. Davison, 
 9 I'aige,"'580; Ld. lied. 194, 195; 2 Story 
 Eq. Jur. § 1494. 
 
 * BrowDSword v. Kd wards, 2 Ves. S. 
 243, 245; Harrison v. Southcote, 1 Atk. 
 528,5.39; see also I'arkhurst f. Lowten, 2 
 Swanst. 214; Mare on Discovery, 131, 132, 
 where the cii.ses are classed ; Wijrram, 
 Di^coverj- (Lst .\m. ed), 82, .S3, 193, § 127, 
 134, 270-272; IJn/wnell v. Curtis, 10 I'aige, 
 213; Livingston f. Hiirris, 3 I'aige, 528; 
 Patterson i'. I'lit'.er^on, 1 Hnyw. 107; Wolf 
 V. Wolf, 2 liar. & U. 382; Lambert v. 
 People, 9 Onven, 578; N<>rthup r. Hatch, 
 6 (.'onn. 3t!l; Li-ggott v. Posllev, 2 I'liigc, 
 599; Story K<|. IM. §§ 521-524", 579-59H; 
 United States v. Twenty-KiKh' Packages, 
 &c., Gilpin, 3UC; Ihitlef ». Catlin, 1 Hoot, 
 310; Leigh i'. Kverhnrt, 4 Monroe, 881; 
 Ocean Iiis. Co. i' Field. 2 Story, 59; Ad- 
 ams r. I'orter, 1 (Jush. 170. 
 
 Hut a party is lidund to make discovery, 
 altluiUKh ills answer may sutiject him to 
 the loss <if ligal interest. "Taylor v. Milch- 
 ell, 1 How. (Miss.) 696. 
 
 5 Harrison v. Southcote, 
 Story Kq. PI. § 575. 
 
 6 East India Company v. Campbel, 1 
 Ves. S. 246; Chetwynd v. Lindon, 2 Ves. 
 S. 450; Cartwright v. Green, 8 Ves. 405; 
 Claiidge v. lli'are, 14 Ves. 59, 65; Mac- 
 calluni V. Turton, 2 Y. & J. 163; Waters 
 V. Earl of Sliaftesburv, 12 Jur. N. S. 3; 
 14 W. It. 259, V. C. S. For form of de- 
 murrer in such case, see 2 Van Hey. 83. 
 
 ■? Penrice I'. Parker, Kep. t. Finch, 75; 
 Shiirp r. Carter, 3 P. VVms. 375; W'aliis v. 
 Duke of Portland, 3 Ves. 494; atlirmed 
 by 11. L. ib. 761; Mayor of Lon<ion v. 
 A'insley, 1 Anst. 158; Scott v. Miller. 
 Joiins. 220, 328; 6 Jur. N. S. 858. 
 
 8 Hartley r. liu-sell, 2 S. & S. 244, 252. 
 
 9 Attorney-General v. Sudel, Prec. Ch. 
 214 ; Parkh'urst v. Lowten, 1 Mer. 391, 401. 
 
 10 Selby I'. Crew, 2 Anst. 504; Haker v. 
 Pritchard, 2 Atk. 389; as to discovering 
 returns made to Income 'lax t.'ommission- 
 ers, sec Mitchell v. Koccker, 11 Ilea v. 380; 
 13 Jur. 797. 
 
 u In Livingston v. Tompkins, 3 John. 
 Ch. 452, it is said that " there are numer- 
 ous cases establishing the rule tiiat no one 
 is bound to answer so as to subject him- 
 aelf, either directly or eventually, to a for-
 
 5(54 
 
 DEMUKKERS. 
 
 Cn.XIV. ^-J. 
 
 o^tonds to 
 protect do- 
 fiMidaiit trom 
 discovery of 
 idl cin-iim- 
 staiu'os 
 tendinis to 
 crimiiiato; 
 
 and to cases 
 of moral 
 turpitude, 
 M'hicli ex- 
 pose to 
 punishment 
 in Ecclesias- 
 tical Court. 
 
 plication of this priiiciiile it li:is \)vv\\ held, tlial a iiiarnc'd woman 
 will iu)t bo coin]>elled to answer a bill wliicli would subject her 
 husband to a charge of felony.^ 
 
 It is not necessary to the validity of an objection of this nature, 
 that the facts in(juired after should have an immediate tendency to 
 criminate the defendant; lie may equally object to answering the 
 circumstances, though they have not such an immediate tendency ."■^ 
 This was very clearly hiid down by Lord Eldon, in Paxton v. 
 DovijJas^ in which his Lordship said, " In no stage of the pro- 
 ceedings in this Court can a party be compelled to answer any 
 question, accusing himself, or any one in a series of questions that 
 has a tendency to tliat effect : the rule in these cases being, that 
 he is at liberty to protect himself against answering, not only the 
 direct question, Avhethcr he did what was illegal, but also every 
 question fairly aj)])eariiig to be put with the view of drawing from 
 him an answer containing nothing to affect him, except as it is one 
 link in a chain of proof that is to affect him." 
 
 It results fi-om the principle above laid down, that a defendant 
 is not bound to make any discovery which may tend to show him- 
 self to have been guilty of any moral turjntude, which may expose 
 him to ecclesiastical censure ; thus, it has been held, that a defend- 
 ant is not bound to discover w^hether a child was born out of 
 lawful wedlock ; * nor is an unmai-ried woman bound to discover 
 whether she and the plaintiff cohabited together.^ It has been 
 
 feiture or penaltj', or any thing in the na- 
 ture of a forfeiture or penalty." See the 
 eases tliero cited; Story Kq. PI. § 583; 
 Nortimp I'. Hatch, 6 Conn. 361; Siiinncr 
 V. Judson, 8 Conn. 528; Wolf v. Wolf, 2 
 Hnrr. & G. 382; Livingston v. Harris, 
 3 P:ngc, 528; United States v. Twenty- 
 Eight Package?, Gil])in, 306. The objec- 
 tion by the deleudunts, who were officers 
 of a CI rporation, tliat a discovery of the 
 matters stated in the bill may subject the 
 corporation to n forfeiture of its charter, 
 i!> not sufficiei't to support a general de- 
 murrer to the relief as \vell as to the dis- 
 covery sought bv the bill. Robinson v. 
 Smith, 3 Paige, 222. 
 
 1 Cartwright v. Green, 8 V'es. 405, 410; 
 anit, p. 184. Story Eq. PI. § 519. 
 
 2 East India Company v. Campbel, uhi 
 tup.; see also Lee v. Head, 5 Beav. 381, 
 386. A defendant will not be compelled 
 to discover that, wliich, if answered, would 
 tend to subjfct him to a penalty or pun- 
 ishment, or which might lead to a criminal 
 accusation, or to ecclesiastical censure. 
 1 Greenl. Ev. § 451 ; Thorpe ?■. Macau lev, 
 
 5 Mad. 229; Alaccalhim v. Turton, 2 Y. 
 
 6 .L 138; Story Eq. PI. §§ 377, 524, 501- 
 598, 824, 825; Leggett v. Postley, 2 Paige, 
 699; Patterson v. Patteison, 1 IJavw. 168; 
 Wolfr. Wolf. 2 Harr. & G. 382; Lube Eq. 
 PLtAm. ed.) 246; M'Intyre v. Wancius, 
 
 15 John. 592; Sloman v. Kellev, 3 Y. &C. 
 573; Ocean Ins. Co. v. Fields, 2 Story, 59; 
 Bishop of London v. Eythche, 1 Pro. C. C. 
 (Perkins's ed.) 96 and notes; Adams v. 
 Porter, 1 Cush. 170; Marsh v. Marsh, 1 
 C. E. Green (N. J.), 391,397. 
 
 In case of witnesses, it is said that 
 " many links frequently compose that 
 chain of testimony, which is necessary to 
 convict an individual of a crime, but no 
 witness is compellable to furnish any one 
 of them against himself." Marshall C. 
 J., 1 Purr's Trial, 244; The People v. 
 Mather, 4 Wend. 229; Southard v. liex- 
 ford, 6 Co wen, 254; Bellenger v- The 
 People, 8 Wend. 595; Story Eq. PI. § 553; 
 see jwst, p. 579, n. 5. 
 
 3 19 Ves. 225, 227; and see Maccallum 
 V. Turt<jn, and Clandge v. Hoare, ubi sup.; 
 Thorpe v. Macnuley, 6 Mad. 218, 229. 
 
 ^ Attorney-General t'. Duplessis, Parker, 
 163. As lo proof of non-access and how 
 far parents can bastardize their issue, see 
 Anon. II. Anon., 22 Beav. 481; 23 Beav. 
 273; Legge v. Edmonds, 25 L. .1. Ch. 125, 
 V. C. \V. ; Plowes V. Bossey, 2 Dr. & Sm. 
 145; 8 Jur. N. S. 352; and other cases 
 collected in Taylor on Evid. § 868. 
 
 5 Franco v. Bolton, 3 Ves. 368, 371, 372; 
 see on this subject Benyon v. Nettleford, 
 3 M'N. & G. 94, and the cases collected in 
 the note, ib. 100.
 
 DIFFEEEXT GROmsTiS OF DEMURRER. 
 
 565 
 
 held, however, that a woman is bound to discover where her child 
 was bom, thoxagh it might tend to show the child to be an alien.^ 
 It has also been held, that though parties may demur to any thing 
 which may expose them to ecclesiastical censure, a defendant can- 
 not protect himself from discovery whether he has or has not a 
 legitimate son ; ^ and it is to be observed, that the objection to 
 answering upon the ground that the answer might show a defend- 
 ant to be guilty of moral turpitude, appears to be confined to 
 those cases where the moral turpitude is of such a nature as would 
 lay the party open to proceedings in the Ecclesiastical or other 
 Courts. In other cases, a defendant is bound to answer fully, not- 
 withstanding his answer may cast a very great degree of reflection 
 on his moral character ; ^ or may render him liable for fi-audulent 
 dealings ; * therefore, where a defendant demurred to such part of 
 the bill as sought a discovery fi-om her, as to a conspiracy or 
 attempt to set up a bastard child, wliich she pretended to have by 
 a person who kept her, and was desirous to have a child by her, 
 the demuiTer was oven-uled : ^ because the conspiracy, or attempt 
 to set up the bastard, not being alleged to have been for the pur- 
 pose of defeating the heir, was not of itself an ofience. 
 
 Where the discovery might subject a defendant to penalties to 
 which the plaintiff is not entitled, and which he consequently can- 
 not waive, yet, if the defendant has expressly covenanted not to 
 plead or demur to tlie discovery sought, he will be compelled to 
 answer." And where a person, by his own agreement, subjects 
 himself to a payment, in the nature of ft penalty, if he does a par- 
 ticular act, a demurrer to a discovery of that act will not hold ; "^ 
 thus, where a lessee covenanted not to dig loam, Avith a proviso 
 that, if he did, he should pay to the lessor '20s. a cart load, and he 
 afterwards dug gi-eat quantities : upon a bill being filed by the 
 lessor for a discovery of the quantities, waiving any possible for- 
 feiture, a demurrer by the lessee, because the discovery might 
 subject him to a payment by way of penalty, was overruled.* 
 Upon the same principle, where servants to a company bind 
 themselves to pay a sjiecified sura, in case of a breach of the regu- 
 lations of their service, they cannot jirotcct themselves from 
 
 Ch. XIV. § 2. 
 
 1 Attornoy-Gf-neral r. IdiplessiR, tibi 
 tup.; HOt; Storv K<|. I'l. § :<hr, hikI note. 
 
 2 Fincli t). fiiicli, 2 Ves. .S. 491. 4!»3. 
 
 3 I'er LonI Kl'lori, in I'lirkhur-t «. F,o\v- 
 ten, 1 Mer. 400. A party in ly he <;om- 
 pellfil to make discovery of any act of 
 inoril turpiTiiile, which docs nut amount 
 to a [Hihlic otlence or an imlictiiole crime. 
 Storv Ki). I'l. §§ 51)."., .O'Jii; flare Diwcov. 
 Hi;" Macaulev r Sliaekweil, 1 I'.iiKh, N. 
 S. Vi\: S. (;.'2 UuMH. fj.'.O, note: Myiin i'. 
 Houston, 1 Keen, 229. 
 
 * (Jartsi.le r. Oiitram, 3 Jur. N. S. 39, 
 
 V. c. \v. 
 
 6 Chetwynd v. Linden, 2 Ve.s. S. 450. 
 
 " South Sea Compan3' n. Bnmste'i, 1 Eq. 
 Co.. Ah. 77, pi. 16; East Indiii Conipiiny 
 V. Atkin.s, cited ibid.; 1 Stra. 1(j8; I'axton 
 I'. Douglas, 10 Ves. 239; Story Eq. I'l. 
 § 589. 
 
 ' Ld. Red 105; Morsel'. Huckworth, 2 
 Vern. 44:j; Ka-t India Coinpanv c Neave, 
 5 Ves. 173, 185; Story Eq. 1'1.'§ b'M and 
 note. 
 
 8 Ld. Red. 195, 190. 
 
 In other 
 cases, de- 
 fendant must 
 answer, 
 though dis- 
 covery may 
 reflect upon 
 his moral 
 character. 
 
 Rule does not 
 extend to 
 cases where 
 defendant has 
 covenanted 
 not to demur; 
 
 nor where 
 defendant 
 agrees to sub- 
 ject himself to 
 a payment in 
 the nature of 
 a penalty ;
 
 :)0C> 
 
 DEMURRERS. 
 
 (II XIV. §2. 
 
 I'rotection 
 raiinot be 
 waived, if 
 iliscoverv 
 rxposos 
 iloti'iuiiint to 
 i-riminal 
 charge. 
 
 IlKception to 
 Reneral rule 
 in certain 
 cases of con- 
 ••jpiracj' ; 
 
 or fraud, or 
 libel; 
 
 or where the 
 lo^i.'ilature 
 provides that 
 defendant 
 shall answer, 
 notwith- 
 .standing 
 penalties; 
 
 as in the case 
 of fraudulent 
 tru-stees, 
 
 niiswi'vinn', as \o lirraclu's, l)rrausc' llicy would Ix' s\il)jo(it to a 
 penalty.' 
 
 Upon llu' princl|iK' that the C\)iir( will uoi allow !i man to con- 
 tradiet what lie has, eitlior by liis actions or express words, asserted, 
 it has been held, that a ])erson who rejnvsents himself to be a 
 broker of the city of London, and is em])loyed in that character, 
 cannot afterwards ])rotect himself from discovery on the ground 
 that he was not licensed to act as broker, and that, })y answering, 
 he may expose himself to ])enalties.^ 
 
 It would appear, that where a defendant is entitled to the pro- 
 tection of the Court against a discovery, tending to establish a 
 criminal charge, he cannot depi'ive himself of the benefit of it by 
 any agreement whatever,'^ 
 
 The rule that a defendant is not bound to answer, in cases 
 which may subject him to punishment or penalties, appears to be 
 liable to modification, in some cases, where the facts charged in 
 the bill would amount to conspiracy ; * and also, in certain cases 
 Avhere the defendants would appear to be guilty of fraud, or of 
 })ublishing a libel which might be the subject of indictment,*^ as 
 in tlie cases mentioned by Lord Eldon, in 3Iacaiday v. Shackell,'^ 
 as having frequently occurred in the Court of Exchequer, in which 
 it was the practice with underwriters, where policies of insurance 
 were found to be afiected Avith gross frauds, to bring the parties 
 into Court, and compel them to answer, by stating in their bills 
 frauds wliich would have been indictable. 
 
 It may be mentioned here, that the Legislature has, in some 
 cases, expressly provided, that parties to transactions rendered 
 illegal by statute, shall be comjielled to answer bills in Equity for 
 the discovery of such transactions : in such cases, of course, the 
 defendant cannot ])rotect Itimself from the discovery required, on 
 the ground that it will render him liable to the penalties imj)osed 
 by the statute itself Thus, trustees and other jjcrsons who are 
 
 1 African Company v. Parish, 2 Vern. 
 244; East India Company v. Neave, «ij 
 sup. 
 
 2 Green v. Weaver. 1 Sim. 404, 432 j 
 Robinson v. Kitcbin, 21 Beav. 365; 2 Jur. 
 N. S. 57; ib. 294; 8 De G., M. & G. 88; 
 see Story E(\. PI. § 589. 
 
 8 Lea V. Heed, 6 Beav. 381, 385. This 
 appears to be confined to criminal cases; 
 see observation of Sir J. Romilly M. R. 
 in Hobinson v. Kitcbin, 21 Beav. 365, 370. 
 
 * Dumnier v. Corporation of Chippen- 
 ham, 14 Ves. 245, 251; see also ]>oid El- 
 don's observation in Miiyor of L'lndon v. 
 Levy, 8 Ves. 404; and Ibire on Di.sc. 143. 
 
 6 See Wilmot I'. Maccabe, 4 Sim. 263; 
 Story Eq. I'l. § 597. In March v. I)Mvid- 
 son, 9 Paige, 580, Mr. Chancellor Wal- 
 worth held, that in the case of a hbel, the 
 defendant could not be compelled in a bill 
 
 of discovery to discover any thing which 
 woiilii niakc him liable to an indictment 
 criminally; but he wa.s compellable to 
 discover other facts in support of the ac- 
 tion, which would not subject him to a 
 criminal prosecution, or to a penalty or for- 
 feiture. 
 
 e 1 Bligh, N. S. 96. 
 
 ■^ See post, p. 579, n. 5. The New York 
 Revised Statutes, 'and a statute passed 
 since, have provisions which compel a 
 defendant to m;ike a discovery in many 
 cases where criminal prosecutions and 
 peniilties can take place and be executed. 
 Thus the defendant must answer to a 
 gaming triinsaction at the .suit of the loser 
 or .'iny otiier person. 1 Rev. Stat. 664, 
 § 19. As to money illegallv received 
 for brokerage, ib. 709, § 4. As to mon- 
 ey and things taken u.suriously, ib. 772,
 
 DIFFEREXT GROUNDS OF DEMURRER. 
 
 567 
 
 liable to a criminal prosecvition for the fraudulent misapplication 
 of moneys intrusted to them, are, nevertheless, bound to give dis- 
 covery, in answer to a bill in Equity.^ So, also a person inMng- 
 ing a trade-mark, though liable to prosecution, must give discovery 
 in Equity.^ 
 
 If a party be liable to a penalty or forfeiture, provided he is 
 sued within a limited time, and the suit is not commenced till 
 after the limitation has expired, the defendant will be bound to 
 answer fully, even though, by so doing, he may expose his charac- 
 ter and conduct to reflection ; ^ and it seems, that the plaintiflT is 
 entitled to an answer, if the liability ceases after the defence has 
 been put in, and before it is heard, even though there was a liabil- 
 ity at the time of putting in his defence. Tliis has been decided 
 upon a plea,* and upon exceptions to an answer ; ^ and there is no 
 doubt that the same decision Avould be come to upon demurrer. 
 
 It has been before stated, that if the executor or administrator 
 of a parson bring a bill for tithes, he need not ofier to accept the 
 single value : ^ the reason of which rule is, that the treble value 
 is not given, by the statute, to the representatives ; and there can 
 be no doubt that tlie same reason will be valid against allowing a 
 demurrer, in all cases where the penalty is personal, and does 
 not survive to the representatives of the person entitled to sue for 
 it." 
 
 A defendant cajinot refuse to give discovery on the ground that 
 it will expose him to penalties in a foreign country.* 
 
 Some of the cases in which a demurrer Avill lie to a bill, on the 
 ground that the discovery required will expose the defendant to a 
 forfeiture, have been before referred to,^ for the purpose of illus- 
 trating the ))rinci])le, tliat where it is in the power of a plaintift" 
 to waive such forfeiture, his omission to do so may be taken 
 advantage of by demurrer.^" The bill, however, will be equally liable 
 to this species of objection, in cases where the plaintiif has no 
 power to waive the effects of the discovery, as in those where he 
 has such jtower, and omits to exercise it ; therefore, whore the 
 discovery sought by an infonnalion wouM have subjccteil the 
 
 Ch. XIV. § 2. 
 
 and infring- 
 ers of trade- 
 marks. 
 
 Where the 
 time within 
 which the 
 penalty may 
 be recovered, 
 has expired. 
 
 § 6. And also in all cases whf re the defend- 
 ant is ciiurtjed with liciiip a party to a fraud- 
 ulentc'iriveyaiice. New York Lawsof lh,'J3, 
 p 17. In all these cases, iiowevcr, tiieefl'ect 
 of the discovery is sfiecially limited, by 
 Btatiite, to the object of the civil |)roceed- 
 in^^H, in rofjard to which it is souj^ht. 
 Graham on Jurisdiction, 4!».3. 
 
 1 24 »<c 25 Vic. c. 06, §§ 7r,-80. 
 
 ■^ 'ir> & 26 Vic. c. ««, § 11. 
 
 8 I'arkhnrst v. Lowtcn, 1 Mer. 400; 
 Story Va\. I'l. § .'>;»k; Skitnier t'. .Indson, 8 
 Conn. f)28; l)ut see Notthup v. Hatch, 
 Conn. 301 ; Lambert v. I'uople, 9 Cowcn, 
 528. 
 
 Where bill 
 by personal 
 representa- 
 tive of person 
 entitled to the 
 penalties the 
 rif^ht to 
 which docs 
 not survive. 
 
 Where 
 
 discovery 
 will expose 
 defendant to 
 penalties in 
 ibreign 
 country. 
 
 Where 
 discovery 
 subjects 
 defendant to 
 forfeiture. 
 
 ^ Corporation of Trinity House v. Burge, 
 2 Sim. 411. 
 
 ^ Williams v. Farrington, 3 Bro. C. C. 
 88. 
 
 « Ante, p. 887. 
 
 7 See Hare on Disc. 148. 
 
 " Kinfr of the Two Sicilies V. Wilcox, 1 
 Sim. N.S. 301; 16Jur. 214; distinguished 
 in United States of America v. M'liea, L. 
 R. 4 Kq, 327; S. C. on ai)pcai, L. U. 3 Ch. 
 Ap 79. 
 
 « Ante, pp. 386, 387. 
 
 w Story Kf|. I'l. §§ 680, 5K1 ; Lansing v. 
 I'ine, 4 I'aige, 369; ante, 387.
 
 568 
 
 DEMURRERS. 
 
 Ch. XIV. § 2. 
 
 No distinc- 
 tion between 
 legal and 
 equitable 
 forfeiture. 
 
 Rule does 
 not apply, 
 where dis- 
 cover}' only 
 occasions the 
 takintc elfect 
 of a limita- 
 tion over. 
 
 Where per- 
 sonal dis- 
 qualification 
 is in the 
 nature of a 
 forfeiture. 
 
 dofomlants to a quo irarranto, a Avumvvw was allowed.^ In 
 like manner, wliere a leu:u'y was ujiven to a woman, on her mar- 
 riage, with a condition, that if she married witliont tlie consent of 
 the trustees under the will, the legacy was to be forfeited, and a 
 bill was tiled against tlu' legatee for a discovery whether any mar- 
 riage had taken ])lace, in which it was alleged she had married- 
 without consent: Lord Hardwicke allowed the denuirrer, as she 
 could not ansAver to the marriage Avithout showino^, at the same 
 time, that it was against consent.'^ In a case of this nature, where 
 the husband and Avife ])ut in separate answers, under an order for 
 that purpose, and the husband, by his answer, admitted the mar-" 
 riage -without consent, but the wife omitted to do so. Lord Talbot, 
 upon exceptions being taken to her answer, said, that he could 
 not reconcile himself to compelling a wife to confess that by which 
 she might forfeit all she had in the world, and lield the answer to 
 be sufficient.^ 
 
 The principle, that a defendant is not bound to give discovery 
 which will expose him to a forfeiture, applies equally, whether the 
 forfeiture is enforcible in Equity or at Law.^ 
 
 The rule a])plies only to cases Avhere a forfeiture, or something 
 in the nature of a forfeiture, may be incurred : Avhere the dis- 
 covery sought merely extends to the performance of a condition 
 upon failure in which a limitation over is to take effect, the defend- 
 ant cannot protect himself from the discovery, Thus, where a 
 husband, by Avill, gave an estate to his wife, whilst she continiied 
 his AvidoAV, with a limitation over in case of her second marriage, 
 and the remainder-man brought a bill against her, in which he 
 sought a discovery of her second marriage : upon the defendant 
 demurring to the discovery, as sulyjecting her to a forfeiture. Lord 
 Talbot overruled the demurrer.^ A demurrer, also, will not 
 prevail where the discovery is of a matter which shows the defend- 
 ant disqualified from having any interest or title : as whether a 
 person claiming a real estate, under a devise, be an alien, and con- 
 sequently incapable of taking by purchase.*' A distinction, 
 however, appears to exist, in this respect, between incapacities 
 wdiich are the result of general j^rinciples of Law, and those which 
 are imposed by the Legislature, by Avay of penalty or forfeiture ; 
 thus, before the repeal of the statutes imposing disabilities upon 
 
 1 Attornev-G'-neriil v. Rej'nolds, 1 Eq. 
 Ca. Ab. 13f, pi. 10; 1 Smith Ch. Vr. (2d 
 Am. ed.)20.3. note (/). 
 
 2 Chancey v. Fenlioulet, 2 Ves. S. 265; 
 S. C. nom. Chauncey v. Tahourden, 2 Atk. 
 392; see also Hainbrook v. Smith, 17 Sim. 
 209; le.Jur. 144; Cooke w. Turner, 14 Sim. 
 218; 8Jur. 703. 
 
 8 Wrottesley v. Bendish, 3 ?. Wms. 236, 
 230; ante, p. 180. 
 
 4 Attorney-General v. Lucas, 2 Hare, 
 566. 
 
 5 Cited Chauncey v. Tahourden, 2 Atk. 
 393; Chancey v. Fenhoulet, 2 Ves. S. 265; 
 Lucas V. ICviins, 3 Atk. 260; Ilambrook v. 
 Smith, ubi sup. ; sf.c, contra, Monnins v. 
 Moiinins, 2 Ch. Hep. 68; Story Eq. PI. 
 § 579, note. 
 
 6 Attornev-Genornl v. Duplessis, Parker, 
 144.
 
 DIFFERENT GROUNDS OF DEMURRER. 
 
 569 
 
 persons professing the Popish religion,^ it was held, that a de- 
 fendant was not ohUged to discover whether he was a Papist or 
 not.^ Upon the same principle, it has been held, that where a 
 bill sought a discovery, whether a clergyman had been presented 
 to a second living which avoided the first, nnder the statute 21 
 Hen. YIII., a demurrer to the discovery of that fact would lie : 
 because the incapacity of holding the first living, inc\in-ed by the 
 acceptance of the second, was in the nature of a penalty imposed 
 by the statute.^ 
 
 A defendant, in order to protect himself fi'om answering, on the 
 ground that the discovery of the matters inquired after would 
 expose, or tend to expose, him to penalties, must state upon oath, 
 his belief that such would be the case : a submission of the question 
 to the Court is not sufficient.* 
 
 II. If a defendant has, in conscience, a right equal to that 
 claimed by a person filing a bill against him, though not clothed 
 with a perfect legal title, a Comt of Equity will not compel him 
 to make any discovery which may hazard liis title,^ and if the 
 matter appear clearly on the face of the bill, a demurrer will 
 hold.® The most obvious case is that of a purchaser for a 
 valuable consideration, without notice of the plaintifl:''s claim.'^ 
 
 Cu.XIV. §2. 
 
 Defendant 
 must state 
 on oath his 
 belief tliat 
 disooverj' 
 would expose 
 him to 
 penalties. 
 
 II. That de- 
 fendant has, 
 in conscience, 
 an equal 
 right with 
 plaintiff. 
 
 1 11& 12 Will. III. c. 4, § 4. 
 
 2 Smi'h V. Read, 1 Atk. 520; Harrison 
 V. Southcote, ib. 528; 2 Ves. S. 3b9, 395. 
 
 3 lioteler v. Allington, 3 Atk. 453, 458. 
 * Scott V. Miller (No. 2), Johns. 328; 5 
 
 Jur. N. S. 858. 
 
 5 Storv Eq. PI. §§ 603 604 a; Howell v. 
 Ashmore,.! Stoekt. (N. J.) 82. 
 
 8 Ld. Kd. 109; see Glegg v. Legh, 4 
 Mad. 193, 207. 
 
 ■^ Ld. Red. 199; Jerrard v. Saunders, 
 2 Ves. J. 458; see Sweet v. Southcote, 
 2 IJro. ('. C. 66. The protection which 
 Equity throws around an innocent pur- 
 chaser, a[iplics not only to bills of relief, 
 but also to bills of discover}-. 2 Storj' Eq. 
 Jur. § 1602. Er(uity wi'.l not take the 
 least s*ep agiiinst him, and will allow him 
 to take every advantiige which the law 
 gives him; for tlii-rt; is nothing which can 
 attach it-cif upon his conscience, in such 
 11 ca.se, in favor of an adverse claim. Jb. 
 § 1505; 1 id. § 410; W.-od r .Manu. 1 Sum- 
 ner, 507; Mr.Veil t'. Magee, 5 Mason, 269; 
 Vattier v. llitide, 7 I'ctcrs, 252; I'it/.sim- 
 mons V. Ot'deii, 7 rninch, 2; Hoono v. 
 Chiles, 10 I'r-lers, 177; I'avne v. (Jom|)ton. 
 2 Y. & C 457; Storv Eq. t'l. § 603; Howell 
 V. Ashmore. 1 St'cfet. (N. J.) 82. And so 
 a purchaser, with notice from an innocent 
 
 fiurchascr witliout notic, is entitled to the 
 ike protccti"n. For otherwise, it would 
 huppen ttiiit the title of such a Ixma fulv pur- 
 chaser would tiei iiuie unmiirket:il)lc in his 
 hands. 2 Story Kq. I'L.Iur. § 150;ja; 1 irl. 
 410, and cases cited; Varick v. Hriggs, 
 6 I'aige, 323; IJennctl v. Walker, 1 West, 
 
 130 ; Jackson v. McChosney, 7 Cowen, 360 ; 
 Jackson v. Henry, 10 John. 185; Jackson 
 V. Ewer, 8 John. 573; Demarest «. Wyn- 
 coop, 3 John. 147. 15ut where a bilf is 
 brought for discovery and to set aside a 
 mortgage, which the plaintitf alleges was 
 taken by the defendant with intent to de- 
 fraud the plaintitf, the defendant cannot 
 by demurring to the bill, avoid answering 
 and disclosing the time when his mortgage 
 was e-xecuted, or whether he claims to 
 hold the land by virtue of it; or from dis- 
 closing, and, if in his power, producing the 
 note which the mortgage purports to se- 
 cure; or from stating wiien, where, and 
 in whose presence, and for what, the note 
 was given; or from whom the considera- 
 tion was received, and to whom paid. 
 Hums V. Hobbs, 29 Maine, 273; see jifi^t, 
 pp. 579, 5>-0 
 
 In Howell v. Ashmore. 1 Stockt. (N. J.) 
 82, it was held that when the defendant is 
 charged with a Iraud, and that he. has j)ro- 
 cured a title framlulently, and is fraudu- 
 lently setting it up to defeat the plaintitf, 
 the Court of Chancery may compel such 
 fraud-doer to disclose the fact alleged as a 
 fraud, and all the circumstances attending 
 it, in order that the (>)urt ma}' determine 
 whether those circumstances establish the 
 fraud. And it is a prop'T object of a bill 
 of discovery to ascertain, in a case where 
 the defendant's title can prevail oidy up in 
 the ground of his being a Ikuk'i fi<lf pur- 
 chaser, without notice of tin" plHintill"'a 
 title, whether he. had siirli notice, and to 
 call up'JD him to disclose all the circum-
 
 570 DEMURRERS. 
 
 Cii. XIV.§'2. IT|)c>ii (lie saino liToiiiul, a joinlivss may, in innny cases, (Iciiiur to 
 
 "^ > '■ a hill tilcMl n<;niiist lier fur a (lisoovci y ol' luf jointure deed, if the 
 
 plaiutitV is not c'a|»abk' of oontinnino-, or the hill does not otfer to 
 confirm, her jointui-e, and the facts appear suHiciently'upon the 
 face of the hill: thou<j,h, ordinarily, advantage is taken of tliis 
 defence hy i>lea.^ 
 III. That the III. A defendant is not compellable to discover any thing im- 
 IwMit^r material to the relief prayed by the bill.- Upon this ground, 
 immaterial upon a hill HIcmI by a mortgagor against a mortgagee to redeem, 
 praved.^ "^ :^"^1 seeking a discovery whether the mortgagee was a trustee, a 
 demurrer to tlie discovery was allowed : for, as there was no trust 
 declared upon the mortgage deed, it was inmiaterial to the plain- 
 tiff wliether there was any trust reposed in the defendant or 
 not.' So, where a bill was filed by the lord of a borougli, pray- 
 ing a discovery whether a i)erson applying to be admitted a tenant 
 was a trustee or not, a demurrer was allowed:^ and where a bill 
 was brought for real estate, and sought discovery of proceed- 
 ings in the Ecclesiastical Court u])on a grant of administration, 
 the defendant demurred, successfully, to that discovery.^ In 
 like manner, where a bill was filed to establish an agreement 
 entered into before marriage, by which a separate estate was 
 secured to the defendant's wife, and praying a discovery of several 
 nnkindnesses and hardships which the defendant, as it was pre- 
 tended, had used towards his wife, to make her recede from the 
 agreement, and the defendant demurred to the discovery, the 
 demuxTcr was allowed.^ But in general, if it can be supposed 
 that the discovery may in any way be material to the plaintilf, for 
 
 stances wliich may go to probe his con- mur to the whole bill, if it do not aver that 
 science upon that point. Howell v. Ash- a suit at Law is pending, or is about to be 
 more, 1 Stockt. (N. J.) 82; see post, p. 531, brought, in which a discovery maj' be ma- 
 note terial. Jlitciiell t'. Green, 'lO Met. 101; 
 
 1 Ld. Red. 199; Chamberlain v. Knapp, Pease ■;;. Pease, 8 Met. 395. 
 
 1 Atk. 52; Senliuuse v. Karl, 2 Ves. S. But when tlie bill seeks for discovery 
 
 450; see also Leech v. Trollop, ib. 662, only, and not for relief also, the defendant 
 
 from which it appears, that a widow is not will be compelled to make di>covery, if the 
 
 bound to di^^t■ov■er her jointure deed, by Court can suppose that it can be in any 
 
 her answer (even where the bill ofters to way material to the plaiiitift", in support or 
 
 coidirm it) till the confirmation has been defence of any suit, although the bill does 
 
 effect! d; sce/jos/, Chap. XLIL, Prof/wc^ion not aver that the right which the plaintiff 
 
 of Documents. seeks to enforce, cannot be established 
 
 2 L(i. Ked. 191. The plaintiff in a bill without the aid of the discovery sought, 
 must show the materiality of the dis- Peck n. Ashley, 12 Met. 478. 
 
 coveiy siiu^ht. Lucas v. Bunk of Da- This olijection of immateriality may be 
 
 rieii, 2 Stew. 280; Leggett v. Postley, 2 to the whole lull, or to a part of the bill, 
 
 Paige, 601; Ld. He'!. 191, 192; Graham or to a part only of the interrogatories, or 
 
 on Jurisdiction, 488-490; Hare, Disco v. 8; to a particular defendant only. Story i'"q. 
 
 Wigram, Di-!. (Am. ed.) VjSetseq.; Story PI. §568; Hare on Discov. 159-101. For 
 
 Eq. I'l. §§ 554-558; 1 Smith Ch. Pr. (2d fi'rin of a demurrer for immateriality, see 
 
 Am.ed.)204; Newkirk «. Willett, 2 Gaines Story Eq. PI. § 567 ; Willis, 475. 
 
 Ca. Kr. 290; Seymour t". Seymour, 4. John. ^ Harvey v. Morris, Rep. t. Finch, 214. 
 
 Ch. 409; Mcln'ivre v. Mancius, 3 John. ^ Lord Montague «. Dudman, 2 Ves. S. 
 
 Ch. 47; see Peck v. Ahhlev, 12 Met. 396,398. 
 
 478. Where the bill seeks relief which 5 Baker v. PrKchard, 2 Atk. 388. 
 
 the Court has no power to grant, and also 6 Hincks j). Nelihorpe, 1 Vern. 204. 
 seeks a discovery, the defendant may de-
 
 DIFFERENT GROUXDS OF DEMURREE. 571 
 
 the puqioses of the suit, the defendant will be compelled to make Ch.XIV.§2. 
 it ; ^ thus, where a bill called for a discovery of cases laid before " > -^ 
 counsel, and their opinion, Lord Eldon held, that the plaintiff had 
 no right f o a discovery of the opinions of counsel, but only of the 
 cases.- And now, the cases, if prepared subsequently to, or in 
 contemplation of, the litigation, are also protected.^ 
 
 IV. The last case brings us to the consideration of those causes rv. On the 
 of demurrer to discovery, which are the consequence of the privi- l^^fg^fjo^^l 
 lege resulting fi-om professional confidence.* The jmA-ilege con- confidence, 
 fen-ed by this species of confidence applies, though in a different 
 degree, to both the adviser and the client.^ The application of 
 the rule, with regard to professional confidence, to discovery re- 
 quired from the client, has been exemplified in the case already 
 referred to of Eichards v. Jackson, in which Lord Eldon, as we 
 have seen, held, that if the demurrer had been confined to the 
 discovery of the opinions, it would have been good ; and the rule 
 has since been extended to exempt a defendant from the discovery 
 <jf the case itself, and to all confidential communications which 
 have passed in the progress of the cause itself, and with reference 
 to it before it was instituted ; ^ and also to letters written by a 
 defendant to his solicitor, after a dispute between him and the 
 ])laintiff" had arisen, with the view to taking the opinion of counsel 
 upon the matter in question, and which afterwards became the 
 suV)ject of the suit.'^ The rule also extends to all observations, 
 notes, and remarks made by counsel upon their briefs, but the 
 l)riefi5 themselves, so far as they are copies of matter otherwise 
 publici juris,^ and counsel's indorsement, or note of any order made 
 by tlie Court,® are not privileged. 
 
 The rule has been adopted out of regard to the interests of Orij,nnofthe 
 justice, whicli cannot be upholden, and to the administration of P"nciple- 
 justice, whicli cannot go on, without the aid of men skilled in 
 jurispriKlence, in tlie practice of the Courts, and in those mat- 
 ters afl'cctiiig riglits and obligations Avhich form the subject of 
 all juflicial proceedings. If the privilege did not exist at all, 
 
 1 Ld. Red. 193. facts wlien liis professional adviser would 
 
 2 Richard-* v. .Jackson, 18 Ves. 472. be bound to withhold them. Story l':q. 
 » Poni, p. 673. I'l. § iJ9'J, note; Prt-ston v. Carr, 1 Y. & J. 
 * Wifiram, Uiscov. (1st Am. ed.) 83, 84, 175, 179; II:\re, Discov. 174, 175; Green- 
 pi. 13fi: .Story V.<\. I'l. §§ 699-002; 1 Greeiil. law v. Kinir, 1 licav. 137. 
 
 Kv. § 23') el gf^., and cases in notes; Ores- '• (Jarland v. Scott, 3 Sim. 396; IJoIton 
 
 ley Kii. Rv. 27H-2H4; Hrown v. I'nvson, v Corporation of IJverpnol, ?6. 407, 487; 
 
 N ir. 443: Foster J'. Hull. 12 Pick. 89; 1 M. & K. 88, 93; Muches v. I'.iddulrih, 
 
 Wright r. .Miivo, 6 Sumner's Ves. 280 a, 4 Kuss. 190; Woods??. Woods, 4 Hare, 8.3, 
 
 and iiotps; Aikfn r. Kilburno, 27 Maine, 86; .Jenkins v. IJushbv, I>. K. 2 Kq. 647; 
 
 261 : IJnizi<-rr. Korluno, 10 Ala. 610; I3ee- 12 Jur. N. S. 658, V. ('". K. 
 
 Hon i- I'.eeson, 9 ISarr, 279. ^ Vent v. Pacey, 4 ifuss. 193; Greenougli 
 
 '' See also, on this subject, po< Ghap. v. Gaskell, 1 M- & K. 98, 101. 
 
 XIJI., Pim/uctiiinof Documiuls ; 2 Sugd. " Walsham v. Staintoii, 2 H. & M. 1- 
 
 V. & P. (7th Am.' cd.) 1001 et neq., and » Nicholl v. .Jones, 13 W. It. 451, V. G. 
 
 notes. And it is quiti- possible that the VV.; 2 H. & M. 588. 
 clitnt may be comjicllcd to disclose the
 
 572 
 
 DEMURUEKS. 
 
 On. xn.§-2. ovory diu' would !»(' tlirowii upon his own Icg.'il resources; de- 
 ' Y i>ri\ ed of m11 ]trofossi(nial nssistanec, :i man would not venture to 
 
 eonsult Miiy skilful |)(>rson, or woidd only dare to tell Ills coun- 
 How tar sellor li.ill" his case.' Tfnless, however, tlie coniniunieati'on has a 
 
 pn.1t Oct"' direct reference to tlie subject of the dis])ute, tlie party himself has 
 (limseir by no i)rivileoe : lie is, in other resi)ects, bound to disclose all lie 
 
 knows aiul believes an<l thinks respecting his own case; and he 
 
 must disclose the cases he has laid before counsel for their opinion, 
 
 unconnected with the suit itself.'-^ 
 Histon- of Sir James AVio-ram V. C. has stated the history of the law upon 
 
 the rule. , . , . . ^ , ^ ., . .,„ „*" . -,•,-, 
 
 this subject, in the following terms: " Ihe first point decided 
 upon this subject was, that communications between solicitor and 
 client pending litigation, and with reference to such litigation, 
 were ])rivileged ; ujion this there is not at this day any question. 
 The next contest was upon communications made before litigation, 
 but in contemplation of, and with reference to, litigation which 
 was expected and afterwards arose; and it was held, that the 
 privilege extended to these cases also. A third question then 
 arose, with regard to communications after the dispute between 
 the parties, followed by litigation, but not in contemplation of, 
 or with reference to that litigation; and these communications 
 were also pi'otected.^ A fourth point which appears to have 
 called for decision, was the title of a defendant to protect from 
 discovery in the suit of one party, cases or statements of fact made 
 on his behalf by or for his solicitor or legal adviser, on the subject- 
 matter in question, after litigation commenced or in contemplation 
 of litigation, on the same subject, with other persons, with the 
 view of asserting the same right. This was the case of Combe v. 
 The Corporation of London} The question in that suit was the 
 right of the corporation to certain metage dues, and the answer 
 stated that other persons had disputed the right of the cor})oration 
 to metage, and that they had in their possession cases which had 
 been prepared Avith a view to the assertion of their rights against 
 such other j^arties, in contemplation of litigation, or after it had 
 actually commenced; Sir J. L. Knight Bruce held, that those 
 cases, relating to the same question, but having reference to dis- 
 putes with other persons, were within the privilege; and I 
 perfiictly concur with that decision." ^ 
 
 The case before Sir James Wigram was a bill for si)ecific per- 
 
 1 Per I^rd Brougham in Greenough v. Story Eql'l. § 600, Beltzhoover r. Black- 
 Gaskell, 1 M. & K. 1U3. stock, 3 Watts, 20; Foster?;. Hall, 12 Pick. 
 
 2 lb. 100, 101. 89, S2, 98, 99. 
 
 3 Holt.-n V. Corporation of Liverpool, * 1 Y. & C. C. C. 631, 650; see also 
 3 Sim. 407,487; IM.&K. 88.93; Hughes Holmes v. Baddeley, 1 Phil. 476, 480; 9 
 V. Biddulph, 4 liuss. 190; Vent f. Pacey, Jur. 289. 
 
 J6. 193; (Jlagett u. Phillips, 2 Y. &. C. (J. 6 j^ord Walsingham v. Goodricke, 3 
 
 C. 82, 86; 7 Jur. 31; 1 Greenl. Ev. § 240; Hare, 124.
 
 DIFFERENT GROUNDS OF DEMUKRER. 573 
 
 forinance bv a purchaser, and during the treaty for the sale and Ch. XIV. § 2. 
 
 purchase of the estate, but before any dispute had arisen, the ' f ■' 
 
 defendant, the vendor, fi-om time to time consulted his solicitor on Cornmuni- 
 the subject, and written communications passed between them. A goiid'torebe- 
 question arose, upon a motion for the production of documents, fore dispute, 
 whether these communications were privileged, regard being had 
 to the circumstance that they took place before any dispute arose, 
 though with reference to the very subject in respect of which that 
 dis])ute had since arisen ; and his Honor decided, chiefly upon the 
 authority of Raddiffe v. Fursma.n^ that such communications • 
 were privileged, so far only as they might be proved to contain 
 legal advice or opinions, but not otherwise.^ 
 
 This case of RadcUffe v. Fursman is commonly referred to as a Cases for 
 leading case, upon the extent to which the privilege appUes, in pro- °PJj^3°g° ^^ 
 tecting cases laid before counsel for their opinion. The defend- 
 ant, in that cause, demurred to so much of the bill as required 
 him to discover an alleged case, the name of the counsel, and the 
 opinion given upon it. The demurrer was overruled as to the first 
 point, but allowed as to the second and third by Lord King, and 
 the decision was affirmed in the House of Lords, This decision 
 has been frequently mentioned with disapprobation; but having 
 been made by the House of Lords, its authority is recognized, 
 though only to the extent to which it strictly applies. Lord 
 Brougham, in commenting upon it, observed: "Even by the 
 report, and certainly by the printed cases, which I have examined, 
 together with my noble and learned predecessor, it appears plain, 
 tliat the record did not show any suit to have been instituted, or 
 even threatened, at the time the case was stated for the opinion of 
 counsel ; and the decision being upon the demurrer, the Court had 
 no right to know any thing Avhich the record did not disclose." 
 " So far this decision rules, that a case laid before counsel is not 
 protected ; that it must be disclosed. But the decision does not 
 ruh- that disclosure nmst be made of a case laid before counsel in 
 reference to, or in contemi)l:ition of, or pending the suit or action, 
 for the purjioses of which the production is sought." ^ 
 
 The privilege arising from professional confidence, as it respects p^j^p „„t 
 tlie letral advisers, is of u more extended nature: "As regards quaiiiii'd as 
 
 . , , , . • ■•-. 11 to lo^al lul- 
 
 tliem. It does not appear that the i)rotecli(»n is quahhed l)y any visers, byany 
 reference to proceedings pending or in contemplation.'* If, touch- reference to 
 
 1 2 Hro. P C. ed. Toitil. 514; and see Railway Company, 3 M. & C. 355; 2 Jur. 
 
 MornitiKton i;. Moriiington, 2 .1. & 11. 097. 295. 
 
 ■i S"ft obs.Tvations of V. C. Wood on * Foster v. Hall, 12 Pick. 89, 93 et seq. ; 
 
 I-ord Wai«in^'liani v. fJoodrickc, in Man- 1 Green! Ev. § 240; Story Kq. PI. § 600; 
 
 s(;r V. Dix, \ K. k .1. 4.')1, 4.03. Wilson v. Troup, 7 ■Jolin" (Jli. 25, ;JK, 39; 
 
 3 P.oiton r. Corporation of Liverpool, 1 I'oltzlioovcr i'. Hlnckstock, 3 Wafts, 20; 
 
 M. & K. 95, 90; C. P. Coop. t. Brough. JIarcli r. Ludluin, 3 Sand. Cli. 35; Moore 
 
 24,25; see Nin9 v. Northern and Eastern i'. Hrav, 10 I'.arr, 519; 2 Siigd. V. & P. 
 
 (7tli Am. ed.) 1008.
 
 574 
 
 DEMURKERS. 
 
 rn.XlV.§2. 
 
 pnH-tH'diiijjs 
 poiuliiij; or 
 in I'ontoiu- 
 phitioii. 
 
 Does not 
 apply to com- 
 munications 
 to solicitor by 
 third parties. 
 
 'u\iX niMttcrs tliat coinc within the ()i-(liii;ii-y s('())>c of professional 
 ein])h)\ iiK'iit, thoy rcct'ive a i-oiiiiniinicatioii in tlicir professional 
 capacity, tW»iu a cHcnt, and tor his hcnclit, in the transaction of 
 his business, or, which an\(»uiits to the same thing, if they commit 
 to ]>aper, in the course of their em]»k)yment on his belialt^ matters 
 which they know only through their ))rofessional relation to the 
 client, they are not only justified in withholding such matters, but 
 bound to Avithhold thein ; and will not be com])elled to disclose 
 the intbnnation, or })roduce the papers, in any Court of Law or 
 Equity, either as party or as witness. If tliis j)rotection were con- 
 fined to cases where proceedings had commenced, the rule would 
 exclude the most confidential, and, it may be, the most important, 
 of all communications: those made with a view of being ])repared 
 cither for instituting or defending a suit, up to the instant that the 
 process of the Court issued." " The protection would be insufficient 
 if it only included communications more or less connected with 
 judicial proceedings : for a person oftentimes requires the aid of 
 professional advice, upon the subject of his rights and lialnlities, 
 with no reference to any particular litigation, and Avithout any 
 other reference to litigation generally than all human affairs have, 
 in so far as every transaction may, by possibility, become the sub- 
 ject of judicial inquiry. It would be most mischievous, said the 
 learned Judges in the Common Pleas,^ if it could be doubted 
 whether or not an attorney, consulted u2:)on a man's title to an 
 estate, was at liberty to divulge a flaw." '^ In Herring v. Clobery^ 
 in Avhich a solicitor was examined as a witness. Lord Lyndhurst 
 said.: "Where an attorney is employed by a client professionally, 
 to transact ])rofessional business, all the communications that pass 
 between the client and the attorney in the cause, and for the pur- 
 pose of that business, are privileged commmiications : and the 
 privilege is the privilege of the client, and not of the attorney." 
 
 Communications to a solicitor made, not by his client, but by 
 third parties, and information acquired by such solicitor from col- 
 lateral sources, are not privileged from disclosure, even though 
 such communications are made to, and information acquired by, 
 him in his character of solicitor, and solely by reason of his filling 
 that character.^ 
 
 1 Cromack v. Heathcote, 2 Brod. & 
 Bing. C. 
 
 2 Lord Brouffham in Greenough v. Gas- 
 kell, 1 M. & K. 101, 102; C. P. Coop. t. 
 Brough. 08; Story Kq. I'l. § 000, and note. 
 The attorney is not bound to produce title- 
 deeds, or oilier documents, left with him 
 by his client tor professional advice; though 
 lie may be examined to the fact of their 
 existence, in order to let in secondary evi- 
 dence of their contents, which must be 
 from some other source than himself. 1 
 
 Greenl. Ev. § 241; Wright v. Mayer, 6 
 Sumner's Ves. 280, note («); Bank of 
 Utica V. Mersereau, 3 Barb. Ch. 628. 
 
 3 1 I'hil. Sil; 6 Jur. 202; see also Carp- 
 mael v. Fowls, 1 Phil. 687, 692; and that 
 it is the ))rivilege of the client, see Re 
 Cameron's Co;dbrook, &c., Hallway Com- 
 pany, 25 Beav. 1, 4. 
 
 4 Ford I), lennant, 32 Beav. 162; and 
 see Gore v. Bowser, 5 De <{. & S. 30, 33; 
 S. C nom. Gore v. Harris, 15 .Jur. 1168.
 
 DIFFERENT GROUNDS OF DEMURRER. 
 
 575 
 
 Although the general rule is, as laid down in the above case, 
 that a counsel or solicitor cannot be compelled, at the instance of 
 a thu'd party, to disclose matters which have come to his knowl- 
 edge in the conduct of professional business for a client, even 
 though such business had no reference to legal proceedings, either 
 existing. or in contemplation: there is no doubt that the jnivilege 
 will be excluded, where the communication is not made or received 
 professionally, and in the usual course of business,^ and during the 
 existence of the professional relation. Thus, a communication 
 made to an attorney or solicitor, in the character of steward, cither 
 before the attorney or solicitor was employed as such,'- or after his 
 employment has ceased, will not be pi-otected fi-om disclosui-e ; ^ 
 and so, where an attorney had been consulted by a fi-iend, because 
 he was an attorney, yet refused to act as such,* and was, therefore, 
 appUed to only as friend,^ or Avhere the matter communicated was 
 not in its nature private, and could in no sense be termed the sub- 
 ject of a confidential disclosure.'' In all such cases, the matters to 
 be disclosed cannot be said to be matters which the professional 
 adviser has learnt by communication with his client, or on his 
 client's behalf, or as matters which were committed to liim in his 
 capacity of attorney, or which, in that capacity alone, he came to 
 know.'' And so, where an attorney is, as it Avere, a party to the 
 original transaction, as if he be the attesting witness to a deed, he 
 may be called upon to disclose facts relating to its execution, or as 
 to an erasure made by himself in a deed or will ; ^ if, also, he was 
 present when his client was sworn to an answer in Chancery, he 
 may be called upon to disclose the fact ; ^ and if he has been em- 
 jiloyed as the agent of a party, and does not gain liis knowledge of 
 the facts, as to Avhicli the discovery is required, merely in his rela- 
 tion of attorney to his client, the rule will not apply : for, in such 
 cases, tliere was no professional confidence, and he stands in the 
 same situation as any other person.^" 
 
 Ch.XIV.§2. 
 
 Applies only 
 to such com- 
 munications 
 as arc pro- 
 fessional. 
 
 Docs not 
 apply, where 
 the legal 
 adviser is a 
 party to the 
 transaction ; 
 
 or has not 
 gained his 
 knowledge in 
 his profes- 
 sional charac- 
 ter. 
 
 1 Greenoutrh v. Gaskell, 1 M. & K. 98, 
 104; Walker I'. Wildinaii. U Mad. 47; see 
 al.so Dcshorougli /'. Kawliiis, U M. & 0. 
 615; 2 Jur. Vi'i. \i\i\ the privilege is de- 
 stroyed if the information is suhseciuently 
 communicated to the f-oliciior from another 
 source. Lewis ?;. Pennington, .lur. N. 
 S. 478; 8 W. K. 40.^., M. VI. 
 
 2 Cutts V- rickf-ring, 1 Vcntris, 197. 
 
 3 WiKoii V. Hastall, 4 T. K. 753; Story 
 Kq. ri. § tiOi; 1 (Jreeiil. Kv. § 244. 
 
 •• If a party lias been re(|uested to act 
 as soliciior, and the cominunicaiion has 
 l)ecn niiKle, under tlic iiniire^si'in that tlie 
 rccjufst IniH been ncctMli.-d to, it is privi- 
 leged. .Smith I'. Yell, 2 Curtis, 0U7. 
 
 6 J/jid. 
 
 6 Hex V. Watkinson, 2Stra. 1122. 
 ' Grecnougli v. Gaskell, 1 M. & K. 98, 
 104. 
 
 8 Sandford v. Remington, 2 Ves. J. 1S9; 
 Taylor on Evid. §§ 857, 858; 1 I'hil. ou 
 Evid. 128. 
 
 " Doe v. Andrews, 2Cowp. 84U; Taylor 
 on Evid. § 857. 
 
 10 Morgan v. Shaw, 4 Mad. 54,50, 57; 
 see also i^esborough v. Ixawlins, 3 M. & C. 
 515; 2 Jur. 125. 
 
 The person, called as a witness, or made 
 defendant to a bill, must have learneil the 
 matter in question only as counsel, or 
 attorney, or solicitor, and not in any oUier 
 way. If, then-fore, lie were a i)arty to the 
 transaction, and, especially, if ho wcic a 
 [larty to a fnuid (and the ciise may In- ])nt 
 of his bec<imiiig an iiidinncr, after hiing 
 engaged in a ((insjiiracv ), thai is, if lie 
 were acting for himselt', alllioiigli he might 
 be emjiloyed lor another, bo would not be 
 protected" from the discovery; lor in such
 
 57() 
 
 DEMUKREUS. 
 
 Oh. XIV. § J. 
 
 PriviK'jjo will 
 not oxtoinl to 
 other profes- 
 sions ; 
 
 nor to agents 
 or stewjirils ; 
 
 nor to eouvey- 
 aiieers, who 
 are neither 
 counsel nor 
 solicitors. 
 
 Privilege 
 extends to 
 interpreters, 
 or agents, 
 between 
 solicitor and 
 client; and to 
 representa- 
 tives of the 
 party; and to 
 agent to col- 
 lect evidence ; 
 
 Tlio privilc'L^'i' will also ho oxcIikUmI, with regard to cominunica- 
 tioiis to incMuhers of other ])roto,ssioiis than the Jjiiw : it has, there- 
 tore, been hekl not to extend to elergynien ; ^ nor to physicians or 
 nietlical advisers ; ^ nor will it extend to mere agents or stewards ; " 
 it, however, aiti)lios to scriveners;* and also to counsel.^ It has, 
 however, been held that it does not extend to communications 
 made to persons acting us conveyancei's, who arc neitlier counsel 
 nor solicitors ; thus, in the South Sea Company v. Dollif\ referred 
 to in Vaillant v. Dodemead^ a Mr. Gambler, who had settled cer- 
 tain articles, is reported to have demurred to the discovery sought 
 from him, as to the alterations in those articles, on the ground that 
 he was counsel for the company ; and it is stated that the demur- 
 rer was overruled : " for that what he knew was as the conveyancer 
 only."'' It has also been held, that the privilege will not apply to 
 one who has been consulted confidentially as an attorney, when in 
 foct he was not one.^ 
 
 A person who acts as an interpreter,^ or agent,^" between an at- 
 torney and his client, stands in the same situation as the attorney ; 
 and the rule has also been held to apply to the clerk of the coun- 
 sel or solicitor consulted ; ^^ and the privilege extends to the 
 representatives of the party as against third persons, but not as 
 
 case his knowledge would not be acquired 
 solelv bv his being emploved profession- 
 allv." S'tory Eq. i'l. § 601 ;" 1 Greenl. Ev. 
 §§ 242, 244. 
 
 An attorney may be compelled to dis- 
 close the name of the person by whom lie 
 was retained; the character in which his 
 client employed him; the time when an 
 instrument was executed, or put into his 
 hands, but not its condition and appear- 
 ance at that time ; his client's handwriting; 
 and various other matters, for an enumera- 
 tion of which, see 2 Suj:;d. V. & P. (7th 
 Am. ed.) 1063, and notes; 1 Greenl. Ev. 
 §245. 
 
 So if an attorney put his name to an iii- 
 struineiit :.s a witness, his signature binds 
 liim to discli-se all thiit piissed at the time, 
 respecting the execution of the instrument. 
 Bank of Utica v. Mersereau, 3 Barb. (jh. 
 528; 2 Sugd. V. «&: P. (7th Am. ed.) 1063. 
 
 1 Taylor on Evid. § 838; 1 Greenl. Ev. 
 § 247 ; "Commonwealth v. Drake, 15 Mass. 
 161. 
 
 2 Duchess of Kingston's case, 11 Harg. 
 St. Tr. 243; S. C. 20 How. St. Tr. 572; 
 Greenough v. Gaskell, uhi sup. ; 1 Greenl. 
 § 248, note ; Hewitt v. Prime, 21 Wend. 79. 
 
 3 Vaillant v. Dodemead, 2 Atk. 524; 
 Wilson V. Kiistall, 4 T. K. 753. As to 
 bankers and clerks, seeLoydv. Freshfield, 
 2 Car. & P. 325. 
 
 4 Harvey v. Clayton, 2 Swanst. 221, n. 
 (a). 
 
 5 Rothwell V. King, 2 Swanst. 221, n. 
 (a); Spencer 1!. Luttrell, and Stanhope v. 
 Nott, ibid. 
 
 The privilege of clients to have their 
 communications to counsel kept secret, 
 extends in New Hampshire, not only to 
 communications made to professional men, 
 but to those made to any other person em- 
 ploved to manage a cause as counsel. 
 Bean v. (^uimby, 5 N. H. 04. 
 
 An attorne}^, who, in his professional 
 character, has received from the owner of 
 property confidential communications on 
 the subject of a transfer of it, which is 
 subsequently made, cannot be examined, 
 against the consent of the grantee, in rela- 
 tion to such communication. Foster v. 
 Hall, 12 Pick. 89. 
 
 6 2 Atk. 525. 
 
 7 Jbi<l. ; and see Turquand v. Knight, 2 
 M. & W. 100, as to certificated convey- 
 ancers. 
 
 8 Fountain v. Young, 6 E-p 113; but 
 see Galley v. Richards, 19 Beav. 401, 404. 
 
 y Bu Barr(i v. Livette, Peake, N. P. C. 
 77, 78, explained 4 T. R. 756; seeJack?on 
 V. French, 3 Wend. 337 ; Andrews v. Solo- 
 mon, 1 Peters C. C. 326; Parkers. Carter, 
 4 Munf. 273. 
 
 i« Parkins v. Hawkshaw, 2 Stark. N. P. 
 239 ; Reid v. Langlois, 1 M'N. «& G. 627, 
 638; 14 ,Jur. 467, 470; Rus.sell v. Jackson, 
 9 Hare, 387; 15 Jur. 1117; Goodall v. 
 Little, 1 Sim. N. S. 155; 15 Jur. 309; 
 Hooper V. Gumm, 2 J. & H. 602. 
 
 11 Taylor v. Foster, 2 Car. & P. 195; 
 Foote V. Hayne, 1 Car. & P. 545 ; 1 Ry. & 
 M. 165; see 1 Greenl. F:v. § 239; Foster v. 
 Hall, 12 Pick. 93; Jackson v. French, 3 
 Wend. 387.
 
 DIFFERENT GEOUN'DS OF DEMURRER. 577 
 
 bctAveen diflerent claimants under liim.^ The privilege extends to Ch.XIY.§2. 
 
 communications \rith an unprofessional agent, employed to collect "• y ' 
 
 eA'idence;^ and also to communications with a Scotch sohcitor 
 
 and law agent, resident in England.^ 
 
 The iirivilecre does not cease iipon the solicitor afterwards hecom- and does not 
 V . 1 • ^- ■ J.T -J. i cease on 
 
 mg interested m the matters m question m the suit;* nor upon golicitorbe- 
 
 his being struck off the rolls.^ iXSed. 
 
 The propriety of the distinction which has been made between pj.Qpriety of 
 
 the extent of the privilege, as it affects the client and as it affects the distinc- 
 
 the solicitor, lias been doubted." Upon this point, Sir J. L. Knight thTextent of 
 
 Bruce Y. C. said : " I confess myself at a loss to perceive any the privilege, 
 
 ^ * • • 1 flS It tllTGCtS 
 
 substantial reason, in point of diflerence, or principle, or conven- the client, 
 ience, between the liabihty of the chent, and that of his counsel, ?t°r, re^pS*"' 
 or solicitor, to disclose the client's communications made in confi- lively, 
 dence professionally to either ; " '^ and upon the same point. Sir R. 
 T. Kindersley V. C. observed: "If I could, upon authority, 
 determine the abstract point which has been argued, viz., whether 
 the privilege of the cUent is as extensive as that of the solicitor, I 
 should be glad to remove tlie anomaly l)y which it seems, that 
 where the solicitor is interrogated, and olyects, because it would 
 be calling on him to divulge matters which passed in the relation 
 of solicitor and client, then there is a jji-ivilege without more : 
 whetlier such matters relate to an actual or contemplated litigation 
 or not ; and yet, if the same questions are put to the client, then 
 when his privilege is in question, he is to be told that he has a less 
 ])rivilege than he would have through his sohcitor, if the latter 
 Avere questioned. So great an anomaly, so inconsistent and absurd 
 a rule, I should be glad to take on myself to say is not the rule of 
 tliis Court, and that there is no such distinction. When Jieid v. 
 Lanr/lois ' was cited to me, it did appear, at first sight, that it 
 establislied tlie broad proposition contended for ; and I should cer- 
 tainly liave followed that case if it did so; but, on further exami- 
 nation, th(jugh that case does not estaljlish the contrary, yet I think 
 it was not the intention of Lord Cottenham to lay doAvn the gen- 
 eral proposition: that jioint he did not decide; nor do the cases of 
 
 1 Wifjram on Disc. 82 : see also Park- prosecution of, or defence to, a claim to the 
 
 liiir!*t ?•. Lowten, 1 Mer. Vj\, 402; IJussell mutter in di.sidite, are privilej^ed. 
 
 V. .JaeltHon, uhi tup. ; (in-sley v. Mousley, '"^ Lawrence v. Cainpltell, 4 Drew. 485; 
 
 2 K. & .J. 2^f<; Tuf;w(ll r. Hooper, 10 see also IJunbury r. Ikinbury, 2 Beav. 173, 
 
 Utav. 348, 300; see 1 Grefnl ICv. §239. 176, where the riuesti<in was as to an 
 
 - Steele r. Stewart, 1 I'liil. 471, 475; 9 opinion by a Dutcii counsel. And see 
 
 .lur. 121 : Lafone i;. I'aliihiiid Islaml Com- Cliurton i-. Frewen, 2 Dr. & Sm. 390. 
 
 p.iny, 4 K. & .1. 34 ; Walsliain r. Stainton, •• Chunt v. IJrown, 7 Hare, 79. 
 
 2 11. & M. 1; pee al.to Kerr v. Gille.spie, 7 '' Lord Cholmondeley r. Lord Clinton, 
 
 i'eav. 672; Simpson r. P.rowii, 33 IJeav. 19 Yes. 268. 
 
 4H2. And in the recent decision of Ross r. <^ Ante, 611, n. b; Stor}- Eq. PI. § 599, 
 
 (.ibl)s, an<l (Jibbt r. P.oss, L. R. 8 Kq. 523, note. 
 
 it wMs held penerally that communications ^ Pearse v. Pearse, 1 Dc G. & S. 12, 26; 
 
 with an unj)rol'essional aj^ent in aiiticipa- 11 Jur. 52. 
 
 tion of litigation, and with a view to the » 1 M'X. & G. C27, 038; 14 Jur. 407, 
 
 409. 
 
 37
 
 078 
 
 DEMURRERS. 
 
 Cn. XIV. §2. 
 
 Recent cases 
 on the privi- 
 K-go as 
 atiocting the 
 client. 
 
 No difFeronce 
 between 
 cases for 
 opinion and 
 other com- 
 munications 
 of fact. 
 
 Rule confined 
 to communi- 
 cations with 
 legal advisers. 
 
 Privilege does 
 not attach 
 where solic- 
 itor is party 
 to a fraud. 
 
 Pcarsc V. JPearse ^ ami FoUctt v. Jcffcryes " so lay it down as to 
 c'liaUlo nie to say I can follow tliein. If that ])oiiit is to be (locided, 
 it uuist be by a higher authority than mine." 
 
 The more recent cases \\\wn the privilege, as it aftects the client, 
 are very numerous ; and although it is ditlicult, if not imi)ossil)le, 
 to extract any clear rules from them as to the extent of the i)rivi- 
 lege, it may be said that their tendency is to make the rules the 
 same, whether the discovery is sought from the solicitor or client ; * 
 and in matters of title, this seems to have been decided.^ 
 
 There does not seem to be any difference, in princii)le, between 
 cases stated for opinion, and other communications of matters of 
 lact between a client and his professional advisers.® 
 
 The privilege is, liowever, confined to legal advisers : for it has 
 been held, that although a defendant in a suit cannot be compelled 
 to discover or produce letters, between himself and his solicitor, 
 subsequently to the institution of the suit, and in relation thereto, 
 yet, where there are more defendants than one, they are bound to 
 discover letters, and copies of letters, which have jiassed between 
 them with reference to their defences.'^ 
 
 Where a solicitor is party to a fraud, the privilege does not 
 attach to the communications with him upon the subject : because 
 the contriving of a fraud is not part of his duty as solicitor ; ^ and 
 it seems, that it is the same where the communications are with a 
 view to effecting any illegal jourpose.^ In order, however, to pre- 
 vent the privilege attaching, the bill must contain allegations 
 specifically connecting the solicitor mth the fraud or illegal act.^° 
 Questions concerning privileged communications arise more fre- 
 quently upon applications for the production of documents, than 
 upon demurrers to discovery ; and the subject is, therefore, more 
 frilly considered under that title.^^ 
 
 1 1 De G. & S. 12 ; 11 Jur. 52. 
 
 2 1 Sim. N. S. 1; 15 Jur. 118. 
 
 3 Tliompson v. Falk, 1 Drew. 21, 25. 
 
 ^ The following are some of the more 
 recent decisions: Nias v. Northern and 
 Eastern Railway Company, 3 M. & C. 355, 
 357; 2 Jur. 295; Bunbury r. Bunbury, 2 
 Beav. 173 ; Flight v. Robinson, 8 Beav. 22, 
 33; 8 Jur. 888; Maden r. Veevers, 7 Beav. 
 489 ; Woods v. Woods, 4 Hare, 83 ; Reece 
 I'. Trj'e, 9 Beav. 316 ; Pcarse v. Pearse, 
 vJn sup. ; TugwcU v. Hooper, 10 Beav. 348; 
 Penruddock v. Hammond, 11 Boav. 59; 
 Beadon i'. King, 17 Sim. 34 ; Reid v. Lang- 
 lois, and Follett v. Jefferves, nil sup.; 
 Warde v. Warde, 3 M'N. "& G. 365; 15 
 Jur. 759; Balguy f. Broadhurst, 1 Sim. N 
 S. Ill; 14 Jur. 1105; Hawkins w. Gatlier- 
 cole, 1 Sim. N. S. 150; 15 Jur. 186; Goodall 
 v. Little, 1 Sim. N. S. 155; 15 Jur. .309; 
 Thompson v. Falk, u/ji sup. ; Bluck v. 
 Galsworthv, 2 Giff. 453; Ford v. Tennant, 
 32 Beav. 162 ; ante, pp. 570, 671, notes. 
 
 5 Jlanser v. Dix, 1 K. & J. 451 ; 1 Jur. 
 N. S. 406 ; Pearse v. Pearse, uhi sup. 
 
 ^ Lord Walsingham v- Goodricke, 3 
 Hare, 122, 129. 
 
 ' Whitbread v. Gurney, Younge, 541; 
 Goodall V. Little, vbi sup. ; Glyn y. Caul- 
 field, 3 M'N. & G. 463, 474; 15 Jur. 807; 
 Betts V. Menzies, 3 Jur. N. S. 885; 5 W. 
 R. 767, V. C. W.; see also Reynolds v. 
 Godlee, 4 K. & J. 88. 
 
 8 Follett V. Jefferyes, 1 Sim. N. S. 1 ; 15 
 Jur. 118; Russell r. .Jackson, 9 Hare, 387; 
 15 Jur. 1117; Gilbert v. Lewis, 1 l)e G., 
 J. & S. 38, 49, 50; 9 Jur. N. S. 187; Feaver 
 V. Williams, 11 Jur. N. S. 902, V. C. S. 
 
 3 liussell V. .Jackson, uhi sup. 
 
 1" Morniiigton v. Mornington, 2 J. & H. 
 697; Charlton v. Coombes, 4 Gift". 372, 
 382; 9 Jur. N. S. 534. 
 
 11 See 7»s<, Chap. XLIL Production of 
 Documents.
 
 DIFFERENT GROUNDS OF DEMURRER. 579 
 
 V. The necessity that the hill should sho^v, that a certain degree Cn. XIY. §2. 
 
 of privity exists between the plaintiff and defendant, in order to ' y ■' 
 
 entitle him to maintain his suit, has been before pointed out ; ^ and V. Because 
 
 it has been stated, that the want of such privity will afford a ground rektes^only'^ 
 
 for derauiTer to the relief prayed. It mav sometimes, however, to the defend- 
 
 .,.,,, 1 • atit s case. 
 
 happen that a plaintiff may, by his bill, show that, supposing the 
 facts he states are true (and which, as we have seen, are admitted 
 by every demurrer), he lias a right to the relief he prays, and yet 
 may not show such a privity as will entitle him to the discovery 
 which he asks for : for it is a rule of the Court that, where the 
 title of the defendant is not in privity, but inconsistent with the 
 title made by the plaintiff, the defendant is not bound to discover 
 the evidence of the title under which he claims.^ Thus, where a 
 bill was filed by a person claiming to be lord of a manor, against 
 another person also claiming to be lord of the same manor, and 
 praying, amongst other things, a discovery how the defendant 
 derived title to the manor, and the defendant demurred, because 
 the plaintiff had shown no right to the discovery, the demurrer 
 was allowed ; ^ and so, where a bill was filed by one claiming to 
 be the heir, ex parte maternd, against another claiming to be heir, 
 ex parte paternCi^ and the bill sought a discovery in Avhat manner 
 the claim ex parte paternd was made out, and the particulars of the 
 pedigree, a demurrer to that discovery was allowed.* 
 
 The principle upon which these cases proceed is : that the right Rule, that 
 of a plaintiff in equity to the benefit of a defendant's oath, is limited l]',',',^"*^^ ,|;g. 
 to a discovery of such material iacts as relate to the jjlaintiff's cwcn- is 
 case, and does not extend to a discovery of the manner in which, ta"\s''material 
 or of the evidence by means of which, the defendant's case is to be *« i"s own 
 
 established.^ This principle is recognized by Lord Brougham, in 
 
 1 Ante, p. 322. lepal proceeding, has been that of full in- 
 
 2 Ld. Keil. 190; Stroud v. Deacon, 1 quiry as to any and all facts, that may im- 
 Ves. .S. 37; Uu'lon v. Dore, 2 Ves. S. 445; peach the riglit of property in tlie part}' of 
 Sampson f. Swctteiihain, 6 Mad. 16; Tj'ler wliom tlie inquiry is made." Instances 
 f. Drayton, 2 .S. & S. 300; see also Stain- are adduced of interrogatories to sup|)Oscd 
 ton »•. Ctiadwick, 3 M'N. & (J. 575, 582; trustees in trustee processes; to persons 
 15 .Tur. 1130; Storj' Kq. Pi. § 571. clmrged with embezzling the property of 
 
 "* Ld. Ked. 190; and notes and cases deceased persons; and to persons charged 
 
 there cited, with having fraudulently rei'C'ived the 
 
 < Ivv V. Kckewick, 2 Ves. .J. 070. projicrty of an insolvent debtor, liut see 
 
 6 W'igram on I)isc. 201; Inpilbv v. Wilsnn r. Webber, 2 (irav, 55H, in which 
 Shafto, .33 Heav. 31; .lur. N. S. 1141; tiie English rule is distinctly recognized; 
 Daw r. Kiev, 2 IF. & M. 725; Ilofiman r. and the case of Adams v. I'orter is not re- 
 Post ill, I>. \\. 4 Ch. Ap. 073. ferrod to; see also Haskell v. Haskell, 3 
 
 Tile rule of the Knglisli (Jourtsof Kquitv, Cush. 540, 542, 543; iiellows v. Stone, 18 
 that the olaintifT in a bill of disco vef_y- N. M. 405, 483. 484; Story Kq. PI. §§ 672- 
 " shall only have a discovery of what is 574, c; Siiaftsluiry w Arrowsniith, 4 Snm- 
 necessnry to his own title, and sliall not iier's Ve><. 72, Mr. Hovendcn's ii(ite(l); 
 nry into the title of the defendant " ((>)op. Wigram, Discov. (Am. ed.) p. 14, §23, p. 
 Kq IM. 58), is held not to be applicable m 15, § 27, 259 e< 807., § 342, ct seq. ; Mitford 
 Massachusetts. Adams v. Porter, 1 < 'u'^h. V.i\. PI. bv .leremv, 1«9-102; ("ullison v. 
 170, 175, 170. '' Our whole system of in- I5o«som, I'.Md. ("h.'Dcc. 95; Mo well 1: Ash- 
 qiiiry," says Mr. .lustice Dewey in the more. 1 Stockt. (N. .1.) >'7, 8H. The plain- 
 above case, " by the instrumentality of u tilf must state the facts which he expects 
 
 case;
 
 580 
 
 DEMURRERS. 
 
 Til. XIV. 5 -J. 
 
 will not 
 apply, when 
 plaimirt' 
 uiaki's a case 
 vhich -woiilcl 
 disprove the 
 del'enilant's 
 case; 
 
 or where the 
 discovery 
 sought is 
 common to 
 both. 
 
 Jioltoii V. T/tc Corporation of J^in'rjwol /^ and by Lord Abiiigcr, 
 in Hellwood \. Wtthcrdlr It is true that in those cases tlic ques- 
 tion did not come heiove the Court nj)on demurrer, hut tlie ndi' is 
 the same in Avhatever way tlie (juestion may he raised : on demurrer, 
 on exce])tions to the (U'trnchint's answer, or on a])])lieation to ])ro- 
 (hice documents in tlie delendanl's possession,'* 
 
 This rule will not extend to defeat the ])laiiitiiV of his right to 
 diseovery from the defendant, Avhere he makes a case in his bill 
 which, if admitted, M'ould disprove the truth of, or otherwise in- 
 vali(hite the defence made, to the bill ; in such cases, he is entitled 
 to discovery from the defendant, of all which may enable him to 
 imi)each the defendant's case ; for the plaintiff does not rest on a 
 mere negative of the defendant's case, but insists upon some pos- 
 itive ground, entitling him to the assistance of the Court, such as 
 fi'aiid, or other circumstances of equitable cognizance, to a dis- 
 covery of which, no objection of this kind can be raised.* 
 
 If a 2)laintilf is entitled to a discovery of deeds or other docu- 
 ments for the purpose of establishing his own case, his right to 
 such discovery will not be affected by the circumstance that the 
 same documents are evidence of the defendant's case also ;^ and if 
 a defendant, bound to keej) distinct accounts for another jiarty, 
 imjaoperly mixes them with his own, so that they cannot be sejia- 
 rated, he must discover the whole.'' 
 
 to establish by the defendant's answer, 
 otherwise he cannot have a discovery, 
 merely to enable him to judge whether he 
 can prevail in a suit at Law. Deas v. 
 Harvie, 2 Barb. Ch. 448. 
 
 1 1 M. & K. 88, 91 ; see also Attorney- 
 General r. Corporation of London 2 Jl'N. 
 & G. 247, 2oG. 
 
 2 1 Y. & C. Ex. 211, 215. 
 
 3 For instances in Avhieh this rule has 
 been acted upon where the objection has 
 been taken by demurrer, see Stroud v. 
 Deacon, 1 Ves. S. 37; Ivy v. Kekewick, 2 
 Yes. J. 679; Glegg v. Legh, 4 j\Iad. 19-3; 
 Compton V. Earl Grey, 1 Y. & J. 154; 
 Wilson V. Forster, Younge, 280; Tooth r. 
 Dean and ( hajittr of Canterbury, 3 Sim. 
 49, 61. On Apjilication to "Produce: 
 Princess of Wales v. Earl of Liverpool, 1 
 Swiinst. IH, 121; jMicklethwait r. INIoore, 
 3 Mer. 292; liiigh v. liensoii, 7 I'ri. 205; 
 Tvler V. iJravton, 2 S. & S. 309; Sampson 
 f.'Swettenham, 5 Mad. 16; 2 M. & K.754, 
 n. (b); Firkins?-. Low, 13 Pri. 193; Wil- 
 .son V. P'orster, M'Lcl. & Y. 274; Tonilinson 
 f. Lymer, 2 Sim. 4*-9; Shaftsl<ury r. Ar- 
 rowsmith, 4 A'es. 66, 70; Aston r. Lord 
 Exeter. 6 A'es. 288; Worsley v. Watson, 
 cited ih. 289; Bolton v. The Corporation of 
 Liverpool, 1 M. & K. 88; Wasney r. Tem- 
 pest, 9 ]{eav. 407; Attoniey-General r. 
 Thompson, 8 Hare, 106; Manbv v. Bewicke 
 (No. 3), 8 I)e G , M. & G. 476; liumbold 
 1-. Forteith, No. 2, 3 K. & J. 748; Hunt v. 
 
 Elmes, 27 Beav. 62; 5 Jur. N. S. 645; 
 Ferrier v. Atwool, 12 Jur. N. S. 365; 14 
 AV. ]{. 597, L. .JJ. ; ib. 582. A'. C. AV. On 
 Exceptions to Answers: Buden v. Dore, 2 
 A'es. S. 445; Stainton v. ChiidHick,3 M'N. 
 & _G. 375; 15 .lur. 1139; Ingilby*. Shalto, 
 nhi Slip. ; Betliell v. Casson, 1 IL & M. 
 806; Boviil v. Smith, L. K. 2 Eq. 459, V. 
 C. W. 
 
 ■* Ilare on Disc. 201; Bellows v. Stone, 
 18 N. n. 465, 483-485; Daw i\ Eley, 2 H. 
 & I\L 725. And in answering interroga- 
 tories filed by a defendant for the exami- 
 nation of the plaintiff, under the English 
 practice, the general rule aj)plies, that he 
 who is bound to answer must answer 
 fully. Such interrogatories are on a dif- 
 ferent footing from those for the examina- 
 tion of a defendant in this respect, that a 
 plaintiff is not entitled to a discovery of 
 the defendant's case, but a defendant may 
 ask any question.s tending to destroy the 
 plaintift's claim. Hoffman v. Postell, L. 
 li. 4 Cii. Ap. 673. 
 
 5 Burrell v. Nicholson, 1 M. & K. 680; 
 AVigram on Disc. 244; Smith v. Tlie Duke 
 of Beaufort, 1 Hare, 507, 518; 1 Phil. 209, 
 218; 7 Jur. 1095; Combe v. The Corpora- 
 tion of London, 1 Y. & C. C. C 631, 650; 
 Earp V. Lloyd, 3 K. & J. 549. 
 
 6 Freeman v. Fairlie, 3 Mer. 43; Earl of 
 Salisbury v. Cecil, 1 Cox, 277; Wigramon 
 Disc. 244; Ilare on Disc. 246; and see 
 post. Chap. XLIL Production of Docmnaits.
 
 DIFFERENT GROUNDS OF DEMURRER. 
 
 581 
 
 VI. The circumstance that a party not before the Court has au 
 interest in a document which a defendant, so far as his own inter- 
 est is concerned, is bound to produce, will, in some cases, deiirive 
 the plaintiff of his right to call for its production, at least in the 
 absence of the third party, as in the instance of a person being a 
 trustee only for others. Upon this principle, a mortgagee cannot 
 
 . be compelled to show the title of his mortgagor, unless such mort- 
 gagor is before the Court ; ^ in such cases, however, a demurrer, 
 for want of proper parties, would be the proper form in which 
 to raise the objection, where the bill is for relief as well as for a 
 discovery.^ 
 
 VII. Communications which come within a certain class of offi- 
 cial correspondence, are privileged, upon the ground, that they 
 could not be made the subject of discovery in a Court of Justice 
 without injury to the public interest.^ In Stnith v. The East India 
 Company^ Lord Lyndhurst had to consider Avhether correspond- 
 ence, between the Court of Dii-ectors of the East India Company 
 and the Board of Control, came Avithin the limits of this privilege ; 
 and he decided that it could not be subject to be communicated, 
 without infringing the policy of the Act of Parliament,^ and with- 
 out injury to the public interests. 
 
 The above are the princij^al grounds upon which a defendant 
 may demur to the discovery sought by a bill ; although the i>lain- 
 tilFmay be entitled to the relief prayed, in case he could establish 
 his right to it by other means than discovery from the defendant, 
 on those points as to which the defendant is entitled to defend 
 himself from making discovery. In all other cases, a plaintiff, if 
 entitled to relief, is entitled to call upon the defendant to make 
 a full discovery of all matters upon Avhich his title to relief is 
 founded. It does not, however, very often happen that these 
 grounds affect the whole of the discovery sought ; in such cases, 
 the defendant must, if interrogated, answer all those parts of the 
 bill, tlie answer to which will not expose him, or have a tendency 
 to expose him, to the inconveniences before enumerated. A de- 
 murrer, under such circumstances, should precisely distinguish each 
 part of the bill demurre<l to, and if it does not <lo so, it will be 
 oveiTuled." 
 
 If a defendant objects to a particular pari uf the discovery, and 
 
 Ch. XIY. § -2. 
 
 VI. Because 
 a third party 
 has an inter- 
 est in the 
 discoverv. 
 
 VII. Because 
 discoverv 
 against pub- 
 lic interest. 
 
 Answer to 
 matters not 
 covered by 
 demurrer. 
 
 1 Lambert v. Rogers, 2 Mcr. 489; see, 
 however, Halls w. Murf^rave, 3 Beav. 448, 
 4 Beav. 119; Few \\ Oiippy, 13 IJeav. 457; 
 Goujjh V. Offley, 5 De (J. & S. 653; Mercy 
 r. Ferrers, 4 Hcav. 97; and /w«<, Ciiap. 
 XLII. Pniiliullnn iif /hicumenls. 
 
 ••i See rinle, pp. 278, 558. 
 
 8 See 1 Greenl.Fv. §§250-251; Bellows 
 V. Stone, 18 N. H. 4<J5, 486. 
 
 * IPhil. 50, 55; 6.Jur. 1; see also Wad- 
 eer v. Fast Intlia Con)])any, 8 De G., M. 
 & G. 1>>2; 29 Beav. 300. 
 
 5 3 & 4 Will. IV. c. 85. 
 
 « (lietwynd r. Mndon, 2 Ves. S. 450; 
 Devonslier i\ Neweiiliaui, 2 Sell. & Lef. 
 199; U'lbin'^on v. Thonipsun, 2 V. & H. 
 118; Weatherhead v. Blackljurn, i6. 121, 
 124.
 
 582 
 
 DEMURRERS. 
 
 cu. XIV. §•:. 
 
 Demurrer for 
 invitiilarity 
 in frame of 
 biU. 
 
 Benefit of 
 objection may 
 be (.laimecl by 
 answer. 
 
 Amended bill 
 may be 
 demurred to, 
 on the .same 
 grounds as 
 original bill; 
 
 llu' gnninds upon wliu-li lie lUMv tU'iiuu' ;ii)])(.';iv eloarly on the face 
 of the l)i!l, -Aud the defendant does not demur to the discovery, but, 
 nnswcriui;- iv ilu' rest of the bill, doelinos answering to so much, the 
 Court Mill not coni])el him to make the discovery ; but, in general, 
 unless it clearly a[)i)ears by the bill that the plaiiititf is not entitled 
 to the discovery he requires, or that the defendant ought not to be 
 compelled to make it, a demurrer to the discovery will not hold, and 
 the defendant, unless he can ju-otect himself by plea, must answer.^ 
 
 Any irregularity in the frame of a bill may be taken advantage 
 of by demurrer.'- Thus, il' a bill is brought contrary to the usual 
 course of the Court, a demurrer will hold ; '"' us where, after a decree 
 directing incumbrances to be paid according to priority, a creditor 
 obtained an assignment of an old mortgage, and filed a bill to have 
 the advantage it would give him, by way of priority, over tlie de- 
 mands of some of the defendants, a demurrer was allowed : * it 
 being, in effect, a bill to vary a decree, and yet neither a bill of 
 review, nor a bill in the nature of a bill of review, which are 
 the only kinds of bills which can be brought to affect or alter a 
 decree, unless the decree has been obtained by fraud.'' Where, 
 however, a supplemental bill was filed, in a case in which, accord- 
 ing to the fomier j^ractice of the Court, a supplemental bill was 
 the proper course, but by more recent practice the same object 
 had been accomplished by petition : Sir John Leach V. C. held, 
 that the supplemental bill was not rendered irregular, although the 
 circumstances would be taken into consideration upon the question 
 of costs.*' 
 
 If the plaintiff neglects to take advantage of the irregularity by 
 demurrer, he will be held to have waived the objection,' unless he 
 has claimed the benefit of it by answer.^ 
 
 An amended bill is liable to have the same objections taken to it, 
 by demurrer, as an original bill; and even where a demurrer to the 
 original bill has been overruled, a demurrer to an amended bill has 
 been allowed ; ^ and the circumstance of the amendment being of 
 the most trifling extent will not, it seems, make any difference ; 
 and, even where the bill was amended by the addition of a party 
 only, tlie demurrer was held to be regular.^* Where the defence 
 first put in is a plea, and the bill is afterwards amended, the amend- 
 
 1 Ld. Red. 200 ; Ord XV. 4 ; post, p. 583. 
 
 2 Ld. Red. 206; Hainbrigget'. Baddeley, 
 9 Beav. 5.38; Ranger v. Great Western 
 Railway Company, 13 Sim. 368; 7 Jur. 
 93.5; Ifenderson v. Cook, 4 Drew. 306. 
 
 3 Ld. Red. 206; Story Kq. PI. § 643. 
 * Wortley v. Birkliea'd, 3 Atk. 809. 
 
 5 Ld. Red. 206 ; Lady Granville r. Rams- 
 den, I'lunb. 56 ; and saepost, Chap. XXXIV. 
 § 5, /iills of Review. 
 
 6 Davies v. Williams, 1 Sim. 5. 
 
 ■^ Archbishop of York v. Stapleton, 2 
 Atk. 136; Ranger v. Great Western Rail- 
 way Company, uhi sup, 
 
 8 Milligan v. Mitchell, 1 M. & C. 433, 
 442. 
 
 2 Bancroft v. Wardour, 2 Bro. C. C. 66; 
 2 Dick. 672; 1 Hoff. Ch. Pr. 216, 217; 1 
 Smith Ch. Pr. (2d Am. ed.) 214; Moore v. 
 Armstronp, 9 Porter, 697. 
 
 10 Bosanquet v. Marsliam, 4 Sim. 573.
 
 DIFFERENT GROUNDS OF DEMURRER. 
 
 583 
 
 ed bill may still be demurred to.^ A defendant, however, cannot, 
 in general, after he has answered the original bill, put in a general 
 dem,uxTer to the amended bill : because the answer to the original 
 bill, being still on the record, will, in fact, overrule the demurrer.^ 
 The defendant must, in such case, confine his demurrer to the mat- 
 ters introduced by amendment. But where a substantially new 
 case is made by the amended bill, a general demun-er will lie.^ 
 
 A defendant may demur to part only of the relief or discovery : 
 in which case it is called a partial demmTcr.* Under the former 
 practice, a defendant demurring to part of the bill, was bound to 
 answer the rest ; and when interrogatories have been served, a de- 
 fendant may still answer such of the interrogatories as are not 
 covered by the demun-er ; but where no interrogatories have been 
 served, he may file the partial demiirrer without coupling any an- 
 swer Avith it/ It is not, however, necessary that the defendant 
 should adopt the form of a partial demun-er, for the purpose of 
 protecting himself fi-om giving discovery to which the plaintiflf is 
 not entitled: for a defendant may decHne answering any interroga- 
 tory, or part of one, from ansM'cring which he might have protected 
 himself by demurrer, notwithstanding he answers other parts of 
 such interrogatory or interrogatories from which he might have 
 protected himself by demun-er, or other part of the bill as to which 
 he was not interrogated.^ The eflTect of this rule will have to be 
 considered again in the Chapter on Answers ; ' and it may, there- 
 fore, be sufiicient here to observe, that in cases in which it is still 
 thought expedient to adopt the defence of a partial demurrer 
 against discovery, this rule does not seem to aflfect the ])ractice ; but 
 the rule which directs, that no demurrer or plea shall be held bad, 
 and overruled upon argument, only because the answer of the de- 
 fendant extends to some part of the same matter as is covered by 
 such demurrer or plea,* is important. And we have before seen, 
 that now, no demurrer or plea will be held bad, and overruled 
 upon argument, only l)ecause such demurrer or plea does not cover 
 so much of the bill as it might by law have extended to.^ 
 
 A demurrer cannot be good in part and bad in part;^" so that. 
 
 ^ Robertson v. Lord Londonderry, 5 Sim. 
 226. 
 
 - Atkinson v. Ilanwav, 1 Cox, 3C0; see 
 Kllice V. (Joodson, 3 ^L" & C. 653, 058; 2 
 Jur.24'J; Saikeld i-. lMiillips,2 Y. & C. Ex. 
 680; and see 'title, p. 40'J. 
 
 * (Jresy f. Hevan, 13 Sim. 354; see also 
 Powell V. CockercII, 4 Hare, 565, 569; 
 Wyllle r. Kllice, 6 Hare, 505, 510; Attor- 
 ney-IJtncral v. (ooner, 8 Hare, 166; (tn(e, 
 ]>. 400. 
 
 * See Emans v. Emans, 1 McCarter (N. 
 J.), 114. 
 
 6 Burton r. Robertson, 1 J. & IL 38; 6 
 •lur. N. S. 1014. The defendant must, 
 however, wait till the expiration of tho 
 
 time for filing interrogatories. Rowo v. 
 Tonkin, L. K. 1 Eri. 9; 11 Jur. N. S. 849, 
 M. R. 
 
 fi Ord. XV. 4. 
 
 T Post, cb.ip. xvn. § 1. 
 
 8 Ord. XIV. 9; Attoriiej'-General v. 
 Cooper, uIh sup. Tliis order has been 
 adopted in the iv|nity Rules of the United 
 States Courts, Rule 37. 
 
 Ante, p. 540, n. 6, post, p. 617; Ord. 
 XIV. 8. 
 
 1" In this respect, there is a difference 
 between a plea and a demurrer. Mavor, 
 &c., i.f London V. Levy, 8 Ves. 403; Uiikcr 
 V. Melliah, 11 Ves. 70. 
 
 Ch. XIV.§2. 
 
 But after 
 ans-wer to 
 original bill, 
 defendant 
 cannot demur 
 to the whole 
 amended bill; 
 unless new 
 case made by 
 amendment. 
 
 Partial 
 demurrer.
 
 584 
 
 DEMURRERS. 
 
 XI\ 
 
 In ■what case 
 leave will be 
 civeu to put 
 in less 
 extended 
 demurrer. 
 
 Separate de- 
 murrers to 
 distinct parts 
 of the bill. 
 
 Demurrer 
 may be good 
 as to one de- 
 fendant and 
 bad as to 
 another. 
 
 if a (lomurrov is LToneral to tlio whole I>il], and tlioro is any part, 
 (.'itlicv as to tho relief or the discovery, rto Avhieli the defendant 
 ought lo jnit in an answer, the demurrer, being entire, must be 
 overruled.^ 
 
 Instances are, certainly, mentioned by Lord Redcsdale,^ in which 
 demurrers have been allowed in part ; but whatever may have 
 formerly been done, the practice appears to be now more strict : 
 though sometimes the Court has, upon overruling a demurrer, 
 given the defendant leave to put in a less extended demurrer, or 
 to amend and narrow the demurrer already tiled.'' In the latter 
 case, however, the application to amend ought to be made before 
 the judgment uj^^n the demurrer, as it stands, has been pro- 
 nounced : though, even where that has been omitted, the Court 
 has, atler the demurrer has been overruled, upon a proper case 
 b.eing shown, given the defendant leave, upon motion, to put in a 
 less extended demurrer and answer.'* 
 
 A defendant may also put in separate demurrers to separate and 
 distinct })arts of a bill, for separate and distinct causes : ® for the 
 same grounds of demurrer, frequently, will not apply to diflerent 
 parts of a bill, though the whole may be liable to demurrer ; and 
 in this case, one demurrer may be overruled upon argument, and 
 another allowed.^ 
 
 Although a demurrer cannot be good in part and ])ad in ]iai't, it 
 may be good as to one of the defendants demurring, and bad as to 
 others.'' 
 
 P> 
 
 1 Per Lord Hardwicke in Metcalf v. 
 Hcrvey, 1 Ves. S. 24S; Earl of Suffolk v. 
 Green, 1 Atk. 450; To<id v. Gee, 17 Ves. 
 273, 277; Attorne3--General v. Brown, 1 
 Swanst. 304. A demurrer bad in part is 
 void in toio. Verplanck v. Caines, 1 .John. 
 Ch. .57 ; Kuypers v. Keformed Dutch (.'hurch, 
 6 Paige, 570; Forbes v. VVhitlock, 3 Edw. 
 Ch. 440; Fav v. Jones, 1 Head (Tenn.), 
 442; Shed r. "Garfield, 5 Yt. 39; Lube Eq. 
 PI. (Am. ed.) 255; Oastleman «. Weitch, 
 3 Rand. 508; Kimberley r. Sells, 3 .John. 
 Ch. 467 ; Graves v. Downey, 3 Monroe, 
 356; Chase's case, 1 IJland, 217; Blount r. 
 Garen, 3 Hayw. 88; 1 Smith Ch. Pr. (2d 
 Am. ed.) 206; Tread well v. Brown, 44 N. 
 H. 551; Metier v. Metier, 3 C. E. Green 
 (N. J.), 273; S. C. 4 C. E. Green (N. J.), 
 457; Banta v. Moore, 2 McCarter (X. J.), 
 97; Mitchell r. Green, 10 Met. 101; ante, 
 647, note; but see Pope v. Stansbury, 2 
 Bibb, 484, contra. It is a general rule that 
 a demurrer cannot be good as to a part, 
 which it covers, and bad as to the rest; 
 and therefore it must stand or fall alto- 
 gether. Story Eq. PI. § 443; Higginbot- 
 ham V. Bui net, 5 .Jfhn. Ch. 184; Burns r. 
 Hobdt, 29 Maine, 272, 277. 
 
 A demurrer to the whole of a bill, con- 
 taining some matters relievalde and others 
 not, is bad, unless the bill is multifarious. 
 Dimmock v. Bi.xby, 20 Pick. 308 ; McLaren 
 
 V. Steapp, 1 Kelly, 376; Beach v. Beach, 
 11 Paige, 161; Stuyvesant v. Ma3'or, &c., 
 of New York, 11 I^aige, 414; Robinson v. 
 Guild, 12 Met. 323. Where a demurrer to 
 a bill is overruled, because it covers too 
 much, the defendant may, on exception to 
 his answer, raise the question of the ma- 
 teriality of the discovery. Kuypers v. 
 Kef Dutch Church, 6 Paige, 570" If the 
 ground of demurrer assigned as to all of 
 the plaintiffs be bad as to one, the demurrer 
 must be overruled. Gibson v. Jayne, 37 
 Miss. (8 George) 164. 
 
 2 Ld, Red. 214; Rolt v. Lord Somerville, 
 2 Eq. Ca. Ab. 759, pi. 8; Radcliffe v. Furs- 
 man, 2 Pro. P. C. ed. Toml. 514. 
 
 8 Bilker u. Mellish, 11 Yes. 68; Gleggv. 
 Legh, 4 Mad. 193, 207; Thorpe v. Macau- 
 lay, 5 Mad. 218. 
 
 4 Baker V. Mellish, 11 Yes. 72, 70; Story 
 Eq. PI. § 459. 
 
 6 Ld. Red. 214; North v. Earl of Straf- 
 ford, 3 V. Wms. 148; Koberdeau v. Rous, 
 1 Atk. 544. 
 
 6 Ld. Red. 214; North v. Earl of Straf- 
 ford, vbi sup. ; Little V. Archer, 1 Hogan, 
 55. 
 
 T Mayor, &c., of London v. Levy, uhi 
 Slip.; Parstow v. Smith, Walk. Ch. 394; 
 Story Eq. PI. § 445; 1 Smith Ch. Pr. (2d 
 Am. ed.) 206; but not unless it is in form 
 a "joint and several demurrer;" per Sir
 
 FORM OF DEMURRERS. 
 
 585 
 
 Section III. — Tlie Form of Demurrers. 
 
 Cii. XIV. § 3. 
 
 A demurrer must be entitled in the cause, and is headed " The 
 demurrer of A. B. (or, of A. B. and C. D.), one, etc., of the above- 
 named defendants, to the bill of complaint of the above-named 
 plaintiff?' If it be accompanied by a ]:)lea, or by an answer, it 
 should be called in the title "the demurrer and plea,'' or " demurrer 
 and answer." Where it is to an amended bill, it need not be ex- 
 ])ressed, in the title, to be a demurrer to the original and amended 
 bill ; but a demurrer to the amended bill will be sufficient.^ 
 
 As a demurrer confesses the matters of fact to be true, as stated 
 by the opi)osite party, it is always preceded by a general protesta- 
 tion against the truth of the matters contained in the bill ; '^ a prac- 
 tice borrowed from the Common Law, and probably intended to 
 avoid conclusion in another suit,^ or in the suit in which the de- 
 murrer is put in, in case the demurrer should be overruled. 
 
 After the jirotestation, the demurrer, if it is a 2:)artial demurrer 
 and not to the whole bill, must ])roceed distinctly to point out the 
 parts of the bill to Avhich it is intended to apply.* The rule, as to 
 this, is laid down by Lord Redesdale in Devonsher v. Newenhani^ 
 " that where a defendant demurs to part, and answers to part of a 
 bill, the Court is not to be put to the trouble of looking into the 
 bill or answer, to see what is covered by the demurrer; but it 
 ought to be expressed, in clear and precise terms, what it is the 
 party refuses to answer ; ® and I cannot agree that it is a proper 
 way of demurring to say, that the defendant answers to such a 
 particular fact, and demurs to all the rest of a bill: the defendant 
 ought to demur to a particular part of the bill, siiecifying it pre- 
 cisely."^ 
 
 Although a demurrer, in the form above stated, namely, "to all 
 the rest of the bill which is not answered," Avould, for the reasons 
 stated by Lord Itcdesdale, be a bad form of demurrer : a demurrer 
 
 L. Sliadwoll V. C. in Glascott v. Copper 
 .Miners" Coinpniiy, 11 Sim. .305,310; .l.lur. 
 264. If too innriy persons are jolneil ns 
 ilefendanfs in a bill in M(|uity, there being 
 no misjoiiiiler of «nl)iects, one, iicainst 
 wliom II (fooii cau'^e of action is stated, can- 
 ni'f on tijis ffround, demur. N. Y. & N. 
 
 II. WW. Co. I'. Selmvkr. 17 N. Y. 502. 
 
 1 Sinitli.iv I5ryoii."3 VlmX. 42K; < )shorn 
 V. .Tidlion, 3 Drew. \>W1\ and see (Jriinviilc 
 r. Hetts, 17 .Sim. 58. Forfurins of demur- 
 rer, «ee 2 Van Hey. 74-92: and poit. Vol. 
 
 III. ■^ 
 
 2 Story F.(i. PI. §§ 452, 457; 1 Smitli 
 Cli. I'r. (2d Am. ctj.) 209. Protestations 
 in demurrers are reiuired, in New Hamp- 
 shire, to he omitted l)V I!ule6 t>f the liuie* 
 of Chancery Practice", 38 N. II. OOO. 
 
 Title of a 
 demurrer. 
 
 3 Ld. Hed. 212. 
 
 ■* In New Hampshire, the form of a de- 
 murrer is required in substance to be, — 
 " Tiiu defendant says tiie piainlilV is not 
 entitled upon such ijili to the relief [or dis- 
 covery) ]irayed for, because," &c. Ivulo 
 10 of the Pules for Chancery Practice, 38 
 N. H. 10. 
 
 5 2 Sell. v*t T.ef. 199,205. 
 
 See Atwill v. Ferrett, 2 Bhitch. C. C. 
 39. 
 
 7 (!hetwynd v. I.iiulon, 2 Ves. S. 450; 
 Salkeld t;. Science, ih. 107; Barnes r 'i'av- 
 h.r, 4 W. W. 577, V. C. K.; .lohnslon "i-. 
 .Toiinston, 2 .Moll. 414; Story K.i. IM. §§ 457, 
 45H, and notes; Niish v. Smith,!) Conn, 
 421; Clancy v. Crainc, 2 Dev. Ch. 303. 
 
 Commences 
 with a prot- 
 estation. 
 
 When to part 
 of the bill 
 only. 
 
 Answer to a 
 particular 
 part of a bill, 
 and denuirrer 
 as to the rest, 
 is bad. 
 
 Put demurrer 
 to all the bill, 
 excejit a jKir- 
 ticular part 
 specilied, 
 is good.
 
 586 
 
 DEMURRERS. 
 
 Ch.XIV. 5 3. 
 
 Wliorc two 
 or more 
 deimirror?, 
 tliey must 
 point out tlie 
 jt.irt covered 
 l)y each. 
 
 Demurrer to 
 ameudiueuts. 
 
 Must express 
 some cause 
 of demurrer, 
 either jjeneral 
 or specific. 
 
 General 
 demurrers 
 sometimes 
 cover matters 
 of form : 
 
 to all tlie l)ill, except ns to a })aiticular specified part, would not 
 be open to the same objection ; and Avliere the exception apjilics 
 to a very small i)art only of the bill, it has been lield to bo the 
 proper way of demurring.^ In framing such a demurrer, however, 
 care must be taken that it should appear distinctly, by the demurrer 
 itself, what i)art of the bill is to be included in the exception : 
 otherwise, the demurrer will be bad.^ 
 
 The above rule also api>lies to cases where there arc two or more 
 distinct demurrers to different portions of the bill; in such cases, 
 the different portions of the bill to be covered by each demurrer 
 must be distinctly pointed out. And where a demurrer is put in 
 to such i)arts of an amended bill as have been introduced by the 
 amendments, it Avill not be sufficient to say it is a demurrer to the 
 amendments, but the parts must be specifically pointed out, and 
 a. demurrer to so much of the amended bill, as has not been an- 
 swered by the answer to the original bill, will be bad.^ 
 
 A demurrer will not be good if it merely says, generally, that 
 the defendant demurs to the bill ; * it must express some cause of 
 demurrer, either general or specific.*^ A defendant is said to de- 
 mur generally, when he demurs to the jurisdiction, or to the sub- 
 stance of the bill ; or specially, when he demurs on the ground of 
 a defect in form. He may, however, in cases where he demurs 
 either to the jurisdiction or to the substance, state specially the 
 particular grounds upon which he founds his objection; and, in- 
 deed, some of the grounds of demurrer, which go to the substance 
 of the bill, require rather a particular statement; thus, a demurrer 
 for want of parties, must, as has been before stated, show who are 
 the necessary parties, in such a manner as to point out to the 
 plaintiff the objection to his bill, so as to enable him to amend by 
 adding proper parties;^ and in the case of a demurrer for mul- 
 tifariousness, a mere allegation, " that the bill is multifarious," 
 Avill 1)C informal ; it should state, as the ground of demurrer, that 
 the bill unites distinct matters upon one record, and show the 
 inconvenience of so doing.'' 
 
 Some objections, which appear to be inerely upon matters of 
 form, may be taken advantage of under general demurrers, for 
 
 1 Hicks V. Eaincock, 1 Cox, 40; Howe 
 V. Duppa, 1 V. & B. 511. 
 
 2 IJobinson v. Thompson, 2 V. & B. 118; 
 Weatherliead i'. Blackburn, ib. 121; Burch 
 V. Coney, 14 .Tur. 1009, V. C K. 1?.; Os- 
 born V. .Jullion, 3 Drew. 5.;i2; Barnes v. 
 Taylor, 4 W. R. 577, V. C. K. ; Storj' Eq. 
 pi."§§ 457, 458; and .=ee Burton v. Robert- 
 son, 1 J. &II. 38; G .Jur. N. S. 1014, for 
 case where no answer had been required. 
 
 8 Mynd v. Franc!-, 1 Anst. 5. 
 
 * Duffield V. Graves, Gary, 87 ; Offeley 
 
 V. Morgan, ib. 107; Peachie v. Twyecrosse, 
 ib. 113. 
 
 6 Nash i). Smith, 6 Conn. 422; see John- 
 ston V. Johnston, 2 Moll. 414; Howland v. 
 Kenosha (Joiinty, 19 Wis. 247. A genenil de- 
 murrer, without any special cause assigned, 
 has tlie efTect only to turn the inquiry 
 upon the equities of the bill. Wellborn v. 
 Tiller, 10 Ala. 305. 
 
 Ante, p. 278. 
 
 7 Bavner v. Julian, 2 Dick. 677; 5 Mad. 
 144, n. '{fj) ; Bitrber v. Barber, 4 Drew. 666 ; 
 5 Jur. N. S. 1197.
 
 FOEM OF DEMURRERS. 
 
 587 
 
 want of eqiiity ; ^ thus, it has been before stated - that some bills 
 may be demm-red to ou the gromid that they are not accompanied 
 by an affidavit; that objection, however, is in foct an objection 
 to the equity, because the cases in which an affida\-it is required 
 are those in which the Court has no jurisdiction, imless upon the 
 supposition that the fact stated in the affidavit is true; and the 
 Court requires the annexation of the affidavit to the bill, for 
 the puijjose of verifying that fact. In these cases, the objection 
 may be made either in the form of a special demurrer, or of gen- 
 eral demurrer for Avant of equity: because the plaintiff, by his bill, 
 does not bring his case within the description of cases over which 
 the Court exercises jurisdiction. Upon the same principle, a de- 
 fendant may take advantage by general demurrer, of the omis- 
 sion to offer to do equity, in cases where such an offer ought to be 
 made.' The objection for want of sufficient positiveness in the 
 plaintiff's statement of facts within his own knowledge, may also 
 be taken by general demurrer ; * but where a defendant to a bill 
 praying relief, demurs to the discovery only, he cannot do so under 
 a general demm-rer for want of equity : he must make it the sub- 
 ject of special demun-er;^ and so, a general demurrer does not 
 include a deniurrer on the ground that the bill (being a bill of 
 review) does not state on the face of it that it is by leave of the 
 Court ; but that ground may be taken ore tenus.^ 
 
 Care must be taken, in fi-aming a demurrer, that it is made to 
 rely only upon the facts stated in the bill ; otherwise it will be 
 what is termed a speaking demurrer, and will be overruled.'^ 
 Thus, where a bill was filed to redeem a mortgage, alleging that 
 the i)laintiff's ancestor had died in 1770, and tliat, soon after, the 
 defendant took jiossession, &c.; and the defendant demurred, and 
 lor cause of demurrer sliowed, that it apjjcared upon the face of 
 tlie bill, that from the year 1770, which is upwards of twenty years 
 before tlie filing of the bill, the defendant has been in possession, 
 etc.. Lord Ilosslyn overruled the demurrer, because the language 
 of the bill did not show that the defendant took possession in the 
 year 1770, but, that he did so, could only be collected from the 
 averment in the demurrer.^ But a demurrer, for that it appeared 
 
 1 In Marsh v. Afarsh, 1 C. E. Green (N. 
 J.), 391, 307, it is saiil that, unHer ii gener- 
 al fletniirrer for want of equity, no ohjec- 
 tion tor wnntof form cjiii j)roperly he raised. 
 
 2 Aiilf, p. 394. A demurrer for want of 
 equitv need not refer to the alleviations of 
 the hill. Mid.llfhrf)ok v. Urmnlcv, li .Fur. 
 N. S. 014, CI.-.; 11 W. IJ. 71'2, V.C. K. 
 
 3 AnU. p. 38.J; Innian v. Wcariiitr, 3 De 
 G & S. 729. 
 
 ■• Anif, pp. 300, 500. 
 
 s Whirtiri(;liatn v. I'urgoyne, 3 An.st. 
 000. 904; M^irsh v. Marsh, 1 C. K. Green 
 (N. ^.), 391, 397. 
 
 « Henderson v. Cook, 4 Drew. 306. 
 
 Ch. XIV. § 3. 
 
 as want of 
 affidavit. 
 
 7 Brownsword v. Edwards, 2 Ves. S. 
 24.5; Henderson v. Cook, 4 Drew, 30G, 315. 
 
 8 Edsell I'. Buchanan, 4 Rr-. C. C. 254; 
 2 Ves. .1. >^3. It is said in Brooks v. Gih- 
 hons,4 Paise, 375, that ''the case of R(WeU 
 V. Buchnnan, 2 Ves. ,]. 83, has h en fre- 
 quently misunderstood. The demurrer in 
 that case was not overruled as a speakin;; 
 demurrer, merelj" on account of a modest 
 sujrKesfion, that the time, stated hy the 
 complainant, ' aliout the year 1770,' was 
 upwards of twenty years hefore the filing; 
 otthe hill. Hut it was hecaiise that sufj- 
 geatii'n, from the manner in which it was 
 introduced into the demurrer, was iu tli« 
 
 Omission of 
 offer to do 
 equity. 
 
 Want of 
 sutiicient 
 positiveness. 
 
 DemuiTer to 
 discover only 
 must he 
 special. 
 
 Speaking 
 demurrers.
 
 588 
 
 DEMURUEUS. 
 
 Ch. \IV. §. 
 
 Several 
 causes of 
 doinurror 
 mav be 
 assigned. 
 
 Demurrer 
 ore tetius : 
 Is confined to 
 cases where 
 there is a 
 demurrer on 
 the record ; 
 
 but cannot be 
 upon the 
 same ground. 
 
 (Ml tlu' liill tli;i( tlio ;i<jriH'iiu'nt, tlu'fi'in nllcLi.'cd to Ikivo 1)c'('ii I'littTcd 
 intii, is not in w I'itin'j; siLiiird liy tlii' dcirnchnit, is not a spcnkint^ 
 donuirfor.^ It is matt'rial to notice that, in order to con.stitiitu ii 
 spoakinL!, deinnrrer, tlie tact or a\crnu'nt inti'odnccd must be one 
 wliicli is iiLH'ossavy to support tlie demurrer, and is not found in 
 the hill : - the introduction of immaterial facts, or averments, or of 
 ;irtj:umonts, is improper; but it is mere surplusage, ami will not 
 vitiate the demurrer,'' 
 
 A defendant is not limiti'd to show one cause of demuia-er only; 
 he may assign as many causes of demurrer as he ))leases, either to 
 the whole bill, or to each ))urt of the bill demm-red to, but they 
 must be stated as distinct and sejjarate causes of demurrer ; * and 
 if any one of the causes of demurrer assigned hold good, the de- 
 murrer Avill be alloAved.'^ Where, however, tAvo or more causes 
 of demurrer are shown to the whole bill, the Court will treat it as 
 one demurrer; and if one of the causes be considered sutlicient, 
 the order will be di'awn up, as u]ion a com))lete allowance of the 
 demurrer.® A defendant may also, at the hearing of his demurrer, 
 orally assign another cause of demurrer, ditferent or in additioti to 
 those assigned upon the record: which, if valid, will su])])ort the 
 demurrer, although the causes of demurrer stated in the demurrer 
 itself are held to be invalid. This oral statement of a cause of 
 demurrer, is called demm-ring " ore temisP"^ A defendant cannot 
 demur ore temts, imless there is a demurrer on the record ; and 
 upon this ground, where a defendant had i)leaded, and, upon the 
 plea being overruled, oifered to demur ore tenus, for want of par- 
 ties, he Vas not peniiitted to do so ; * neither can a defendant 
 demur ore tenus for the same cause that has l)een exi^ressed in the 
 
 nature of an averment, that the defoniiant 
 had been in possession of tlie innrtgaired 
 premises for more than twenty years. And 
 the fact of cuch possession was necssarv 
 to sustain tlie defence set up on the argu- 
 ment of the demurrer; which defence was, 
 that tlie phiintiff's rigiit to redeem was 
 barred Ijy the lapse of time. The precise 
 time, at wliich tlie defendant's possession 
 commenced, not appearing from the bill 
 itself, tlie averment that the heir of the 
 mortgap;pe had been in possession ' up- 
 wards of twenty years before the bill filed,' 
 should have been brouglit forwnrd by plea, 
 or answer, arid not by demurrer." 
 
 1 Wood V. Midgley, 5 De G., M. & G. 
 41 ; see also .Jones v. Charlemont, 12 Jur. 
 532, V. C. E. 
 
 2 Brooks V. Gibbons, 4 Paige, 374 ; see 
 Kuypers v. Ref. Dutcj-j Church, 6 I'aige, 
 570"; M'Comb r. Armstrong, 2 Moll. 295; 
 StorvEq. PI. § 448; Pendieburv t". Walker, 
 4 Y."& C. 424; 1 Smith Cli. Pr. (2d Am. 
 ed.) 200; TallmadL'e*;. Lovett,3 Kdw. Ch. 
 554; Saxon v. JJarksdale, 4 Desaus. 522. 
 
 3 Cawthorn v. Chalie, 2 S. & S. 127; 
 Davies v. Williams, 1 Sim. 5, 8. 
 
 4 B:\rber v. Barber, 4 Drew. 666; 5 Jur. 
 N. S. 1197. 
 
 5 Harrison v. Hoo-g, 2 Ves. -T. 323 ; .Tones 
 V. Frost, 3 Mad. 1, 9; .J;ic. 466; Cooper v. 
 E;irlPnwis, 3 De (1. & S. 688. 
 
 VVeile>lev v. Wellesley, 4 M. & C. 554, 
 558; 4 Jur. 2; see also Watts v. Lord Eg- 
 linton, 1 C. P. Coop. t. Cott. 25, 27. 
 
 ' Brinkerhoff f. Brown, 6 John. Ch. 149; 
 Storv Im]. pi. § 464; Wright v. Dame. 1 
 Met.'237; M'Di^nnot y. Hlois, K. M. Charlt. 
 281; Daly r. Kirwan, 1 Irish Kq. 157; see 
 Giirlick V. Strong, 3 I'aige, 440; Chase v. 
 Searle, 45 N. H. 512. 
 
 Under a general demurrer for want of 
 equity, a demurrer for want of parties may 
 be made ore tenus. Robinson v. Smith, 3 
 Paige, 231; Garlick v. Strong, 3 Paige, 
 452; Still well v. M'Neely, 1 Green Ch. 
 305; see Pvle v. Price, 6 Sumner's Ves. 
 781; Mr. itovenden's note (2); Ld. Red. 
 217. 
 
 « Durdant r. Redman, 1 Vern. 78; Hof>k 
 V. Dorinan, 1 S. & S. 227, 231; Story Eq. 
 PI. § 464.
 
 FORM OF DEMURRERS. 
 
 589 
 
 demurrer on record, and overruled;-^ nor can he, after a demurrer 
 to tlie whole l)ill, demnr ore temis as to }iart.- It seems, however, 
 that after a demurrer to part of the bill has been overruled, the 
 defendant may demur ore tenus to the same part.^ 
 
 It is to be noticed that, although a defendant may, either upon 
 the record, or ore tenus, assign as many causes of demurrer as he 
 pleases, such causes of demurrer must be co-extensive with the 
 demurrer upon the record; therefore, causes of demurrer, Avhich 
 ap])ly to part of the bill only, cannot be joined with causes of de- 
 murrer which go to the whole bill : * for, as we have seen before, 
 a deinurrer cannot be good in part and bad in part ; which would 
 be the case if a demurrer, professing to go to the whole bill, could 
 be supported by the allegation of a ground of demurrer Avhich 
 ajiplies to part only. 
 
 The consequence of demurring 07-e tenus, as regards costs, will 
 be discussed in a future section.^ 
 
 The demurrer, having assigned the cause or causes of demurrer, 
 then proceeds to demand judgment of the Court, whether the 
 defendant ought to be compelled to ])ut in any further or other 
 answer to the bill, or to such part thereof as is specified as being 
 the sulyect of demurrer; and concludes with a prayer, that the 
 flefendant may be dismissed with his reasonable costs in that be- 
 half sustained." 
 
 If a demurrer is to ])art of the bill only, tlie answer (if any) to 
 the remainder usually follows the statement of the causes of de- 
 murrer, and the submission to the judgment of the Court of the 
 ]»laintiff's right to call ui)on the defendant to nuike further or 
 other answer." 
 
 It was formerly an invariable rule, that an answer to any ])art 
 of a bill demurred to woulil overrule the demurrer,^ even though 
 
 1 Bowman r. Lvgon, 1 Anst. 1; but see 
 I'ratt V. Keitli, 10"jur. N. S. 305, V. C. K., 
 12 \V. ]{. 304, where a demurrer on tlie 
 record, that there were not i)roper parties, 
 hiiviiif^ been overruled, a demurrer ore 
 tmug, deccribingthe necessary parties, was 
 allowed. 
 
 ■i Shcplierd v. I.lovd, 2 Y. & J. 490; 
 Ifarr. Cli 227. 
 
 ■■' Crouch )-. I lick in, 1 Keen, 385, 389; 
 se(! ciiulrn, SiK'plierd r. Llovd, vhi mp. 
 
 * I'itis V. Short, 17 Ves."213, 21»i; Met- 
 calfe V. I{n>wn,f< I'ri. .lUO; Ifuinp r. Orecn- 
 hill. 2(» I'.eiiv. 512; 1 Jur. N. S. 123; 
 Ili'iid'Tson r. (Jook, 4 I)rew. .30t; ; Oilbert 
 f. l,.-wi., 1 De G., J. & S. 3^ 9 .lur. N. 
 S. 187 ; Thompson v. University of I.ondon, 
 10 Jur. N. H. Wj 671; 33 L. J. Ch. 625, 
 V. C. K. 
 
 fi See ;xigt, p. 549. 
 
 « See form in Vol. I IF. 
 
 ' See nnle, pp. 581, .',84,585. 
 
 8 Tidd V. Clare, 2 Dick. 712; Hester v. 
 
 Cii. XIV. § 3. 
 
 Must be co- 
 extensive 
 with demur- 
 rer ou record. 
 
 Costs. 
 
 Demand of 
 judgment. 
 
 Weston. 1 Vern. 463; Roberts r. Chiyton, 
 3 Anst. 715; see Varick v. Smith, 5 I'aipe, 
 137. A demurrer may Ije to the whole 
 bill or to a part only of the bill; and the 
 defendant may tlu'retbre demur as to one 
 part, plead as to iinothcr part, and answer 
 to the rest of tin- bill. Story K(|. 1'1.§ 412; 
 Newton r. 'rii;iyer, 17 Tick. 132," 133; 
 I'ierpont r. Fowle. 2 Wood. & JI. 23. Hut 
 a defendant cannot plead or answer, and 
 demur both, to the whole bill or to the 
 same part of a bill. Clark v. I'licljis, 
 John. Ch. 214; Henuchiimp r. Gil, lis, 1 
 Hibb, 481; KobiuMin r. ISiuKN'y, 1 M'Cord 
 Ch. 3.J2. If the di'fend;inl lU'inur to the 
 whole bill, an answer to a jiarl thereof is 
 inconsistent; and the demurrer will be 
 overruled. Story K<\. I'l. § 442. J'or the 
 same reason, if tlu^e be a demurrer to a 
 fiart of the hill, there cannol be a pica or 
 answer to the same part, without ovcrrul- 
 iiif; the demurrer. Story V.(\. I'l. § 442; 
 Clark t'. I'lieljis, John. Ch. 214; Souzer 
 
 Form of 
 demuiTer and 
 answer. 
 
 Where 
 answer will 
 overrule 
 demurrer.
 
 590 
 
 DEMURIIERS. 
 
 Cn. XIV. 5n. 
 
 Nature of 
 answer; 
 
 ■when it may 
 be excepted 
 to. 
 
 Pcmurrer is 
 put in 
 ■without oath. 
 
 iho i>:ii"t answorcd was iinmalerial.' And tliis nilo w.as carried so 
 far. tliat w lirrc tlir ilciiiurror did not in form extend to the part 
 answereil, yet, il' tlie iirincii)le iipon whicli tlie demurrer depended 
 was sneli that it ought to liavc extended to the whole bill, then 
 the answer \o such ]»art overruled the demurl-er,*^ This is still the 
 rule of the Court, hut it has been modified to this extent: that the 
 Court will not oven-ulc> a demurrei', merely on the ground that, by 
 some slip or mistake, a small or immaterial part of the bill is 
 covered by the answer or plea, as well as the dennirrer.^ 
 
 For information as to the nature of the answer (if any) to bo 
 ]>ut in to those parts of the bill to which the defendant does not 
 demur, the reader is referred to the chapter on. Answers.* If the 
 plaintiff conceives such answer to be insufficient, he may except to 
 it, but he must not do so before the demurrer has been argued : '' 
 otherwise, he will admit the demurrer to be good." It is said, 
 however, that if the defendant demurs to the relief only, and 
 answers the rest of the bill, the plaintiff may take excej^tions to 
 the answer before the demurrer is argued.'' 
 
 A demiirrer is ])repare(I, and must be signed, by counsel ; ^ but 
 it is put in ^vdthout oath, as it asserts no fact, and relies merely 
 upon matter apparent upon the face of the bill ; ^ and it need not 
 be signed by the defendant. 
 
 V. De Meyer, 2 Pais;e, 574 ; INIitfor J Eq. PI. 
 by Jeremy. 209, 210; H. K. Chase's case, 
 iBlaml, 217 ; Leacraft u. Dempsev, 4 Paige, 
 124; Spdflbrd i'. Manning, 6 Paige, 3&3; 
 Miller v. Fasse, 1 Bailey Eq. 187; Jarvis v. 
 Palmer, 11 Paige, 050; Kuypcrs v. Re- 
 formed Dutch Church, 6 Paige, 570; 
 Clinse's case, 1 Bland, 20G; Saxon v. 
 Barksdale, 4 Desaus. 522; Bull v Bell, 4 
 Wis. 54; see ante, p. 547, n. 2. 
 
 In Miissachusetts, " the defendant, in- 
 stead of tiling a formal plea or demurrer, 
 may insist on any special matter in his 
 answer, and have the same benefit there- 
 from as if he had pleaded the same or de- 
 murred to the bill." Kule 14 of the Rules 
 of Practice in Chancery; see Lovett v. 
 Longmire, 14 Ark. (IBarb.) 339. The 
 same rule exists in New Hiunpshire, Rule 
 10 of Chancery Practice. 38 N. H. 607. 
 
 By the rules in Chancery cases in Maine, 
 defendants maj' severally demur and an- 
 swer to the merits of the' bill at the same 
 time. Rule 6, 37 Maine, 582; Hartshorn 
 f. I'ames, 31 IMaine, 97; Smith v. Kellej-, 
 5G M line, 64, 65. 
 
 1 liuspini V. Vicker}', cited Ld. Red. 211 ; 
 Savage r. Smalehroke. 1 Vern. 90. 
 
 2 Dawson i-. Sadler, 1 S. & S. 542; Sher- 
 wood V. Clark, 9 Pri. 259; Hester v. Wes- 
 ton, 1 Vern. 463. 
 
 3 Ord. XIV. 9; ante. p. 583; Lowndes 
 V. Garnett and Mnselcv frold Mining Com- 
 pany. 2 .1. & II. 2S2; Maiiscll r. Feenev, 
 il. 313; Gilbert v. Lewis, 1 De G., J. & S. 
 
 38; 9 Jur. N. S. 187; see also Jones v. 
 Earl of Strafford, 3 P. Wms. 81. 
 4 Post, Chap. XVII. 
 
 6 Lo"don Assurance v. East India Com- 
 pany, 3 P. Wms. 326. 
 
 G'Ld. Red. 317; Boyd r. Mills, 13 Ves. 
 85, 86. If necessary the plaintiff may ob- 
 tain an extension of the time to file excep- 
 tions ; see post, Cbap. XVII. § 4, Exceptions 
 to Answers. 
 
 7 Ld. Red. 317; 3 P. Wms. 327, n. (c). 
 
 8 Ord. VIII. 1 ; 1 Smith Ch. Pr. {2d Am. 
 ed.) 209; Story Eq. PI. § 461. Where a 
 solicitor has appeared in a cause, and a 
 demurrer is filed, signed by solicitors who 
 have not appeared, the demurrer may be 
 treated as without signature, and as a nul- 
 lit}-. Graham r. Elmore, Ilarring. Ch. 265. 
 In Ernest v. Partridge, 11 W. K. 715, V. 
 C. VV., the costs of advising with counsel 
 as to demurring were allowed, on a party 
 and party taxation. 
 
 9 Ld. Red. 208. By the 31st Equity Rule 
 of the L'nited States Courts, no demurrer 
 or plea sliall be allowed to be filed to any 
 bill, unless upon a certificate of counsel, 
 that in his opinion it is well founded in 
 point of law, and supported by the affidavit 
 of the defendnnt that it is not interposed for 
 delay; and if a plea, thntit is true in point 
 of fact. Story Eq. PI. {3d ed.) § 441, 
 note (2). 
 
 In Massachusetts, "A demurrer shall be 
 accompanied with a certificate that it is not 
 intended for delay." Genl. Sts. of IMass. 
 0. 113, § 6. But this provision does not
 
 FLLIXG, SETTING DOWN, AND HEARING DEMURRERS. 
 
 591 
 
 A mere clerical error in a demiirrer may be amended on an Cii. XIV. §4. 
 ex parte order, before the twelve days have expu-ed,^ or at the 
 hearinof.- 
 
 Section IY. — Filing^ Setting Doiai, and Searing JDemiirrers. 
 
 ■ After the draft of the demurrer has been settled and signed, it 
 is copied on paper of the same description and size as that on 
 which bills are printed,^ and comisel's signature is copied at the 
 foot ; the demurrer is then filed at the Record and Writ Clerks' 
 Office.* The name and place of business of the plaintiff's solicitor, 
 and of his agent, if any, or the name and place of residence of the 
 plaintiff, where he acts in person, and, in either case, the address 
 for service, if any, must he indorsed, as upon other pleadings." 
 
 A separate demurrer, by a married woman, must have an order 
 to warrant it ; such a demurrer ought not, therefoi-e, to be filed till 
 an order to that effect has been procured.® A demurrer cannot 
 be filed on behalf of an infant, or a person of unsound mind not 
 so found by inquisition, until a guardian ad litem has been ap- 
 ])ointed ; and it is the same in the case of a lunatic, when his com- 
 mittee has an advei-se interest. The order appointing the guardian 
 must be produced when the demurrer is presented for filing.'' 
 
 A defendant, demurring alone to any bill,® may do so within 
 twelve days after liis appearance, but not afterwards ; ^ the day 
 of his appearance does not couut.^*^ "When he does not demiu- 
 alone, he has the same time as he has for answering." Time for 
 dcinurring runs in vacation. ^^ 
 
 Wliere, after appearance to the original bill, a defendant is 
 
 How filed. 
 
 Separate 
 demurrer 
 of married 
 woman. 
 
 Demurrer on 
 behalf of 
 infant or 
 limatic. 
 
 Time allowed 
 to demur: 
 
 apply to a statement in tlie nature of a de- 
 murrer for want of efiuity, contained in an 
 answer to a bill in ICijuttv. Mill River 
 Loan Fund As*:, v. Ciafliii, 9 Allen, 101. 
 l-"or forms of demurrer, see Vol. III. 
 
 1 Fiiciiardson r. Hastinj^s, 7 Beav. 58. 
 
 2 Osborn r. .Jullion, .3 Drew. 552, 55-3. 
 
 8 Ord. 6 Miircli, 1^60, r. 10; and Ord. 
 IX. .3, ante, \). .361. A joint demurrer and 
 iinswer must be printed in the same man- 
 ner as an iinswer, see post, (.'hap. XVII. 
 § 3, ]'nnlin;i Answers. 
 
 * (Jrd. I. 36. No fee is payable on filing. 
 
 6 Ord. III. 2, 5; ante, pp." 453, 454. 
 
 6 Ilarron v. Grillard, 3 V. & B. 1G5; 
 Braitlr.vaite's I'r. 58; except, it is pre- 
 sumed, in tho.se cases where a married 
 woman i« entitled to defend as a feme sole ; 
 see ttnU\ pp. 178, 170. 
 
 "> Hniithwaite's I'r. 58. 
 
 8 Whether ori^^inal, amended, or supple- 
 mental, lirailtiwiiite's Manual, 176. 
 
 » Ord. XXXVII. 3; 15 & 10 Vic. c. 80. 
 § 13. In tlie case of a defendant served 
 
 abroad, this rule so far overrules Ord. X. 
 7 (2), as to limit its provisions tojileading, 
 aii>werinp;, or demurrin<;, not demurring 
 alone, (iriiiiing v. PrioleMu, 10 .hir. N. 
 S. 00; 12 W. R. 141, M. 11. ; 33 Beav. 221. 
 Demurrer to part of tlie l)ill, witliout an- 
 swering or pleading to the rest, cannot be 
 filed bei'iire expiration of time for (iling in- 
 terrogatories. Kowe r. Tonkin, L. li. 1 Eq. 
 9; 11 .Jur. X. S. 849, M. U. 
 
 1" Ord. XXXVII. 9. 
 
 11 I'vH. Chap. XVII. § 3; Ord. XXXVII. 
 4, 6. As the time for demurring alone runs 
 from a|)pearancc, and that for answering, 
 pleading, or demurring, not demurring 
 alone, from the service of the interroga- 
 tories, it seems tliat, by delaying api)enr- 
 ance, the defendant may obtain a longer 
 time ior demurring alone tlian for answer- 
 ing, ]ileading, or demurring, not demur- 
 ring alone. See Griining v. Prioleau, tiW 
 sup. 
 
 1^ Ord. XXXVII. 13.
 
 592 
 
 DEMURRERS. 
 
 Cn.XIV.§4. 
 
 ^— — Y ' 
 
 to rtinoiuU'il 
 bill, wlioiv 
 dotbiulant 
 not iV(|iiire(.l 
 to answer. 
 
 Further time 
 to demur 
 alone. 
 
 Demurrer 
 cannot be 
 filed after 
 prescribed 
 time. 
 
 Demurrer 
 and answer. 
 
 Demurrer 
 and answer 
 filed after 
 attachment, 
 or after a 
 traversing 
 note, will be 
 irregular. 
 
 Difference 
 between 
 taking off the 
 file and 
 overruling. 
 
 .'served Avith, l)ut is not rc(|uiiv(l to answer, an aniendecl bill, a 
 I'urtlior aj)j)(.'arance by liini is unnecessary ; and no time is iixcd 
 for his denuirring alone by the General Orders ; but it is custom- 
 ary, in such case, to iile the demurrer M'ithin twelve days from the 
 service of the coi>y of the amended bill.^ It would seem, how- 
 ever, tliat he is entitled to demur within twelve days after the 
 ex])iratiou of the time within which lie might have appeared, if 
 required to do so : that is, within twenty days from the service of 
 the amended bill.- 
 
 The Court, under the former ])ractiee, would, on a special case 
 being made, have allowed a defendant to i)ut in a demurrer to the 
 Avhole bill, after the time for demurring alone had expired ; * and 
 it is presumed that this would be allowed under the present 
 practice,'' upon the delay being satisfactorily accounted for, and 
 upon a special application being made.^ 
 
 A demurrer Avill not be received at the llecord and Writ Clerks' 
 Office, after tw'el ve days fi-om the entry of the appearance,'' with- 
 out a special order enlarging the time, or giving leave to file it ; 
 and if, by inadvertance, it should be received, it will, on the appli- 
 cation of the plaintiff, be taken off the file.'' 
 
 A demurrer, to which is annexed an answer to any material 
 part of the bill, is considered an answer and demurrer, and may 
 be filed within the time limited for pleading, answering, or de- 
 murring, not demurring alone.^ 
 
 If an attachment for want of an answer has been issued against 
 a defendant, a demurrer, even though coupled with an answer, Avill 
 be irregular ; and in such case, the projjcr course is to move that 
 tlie demurrer and answer be taken off the file, and not that the 
 demurrer be overruled; and taking an ofiice cojjy does not waive 
 the right.^ And so, where a traversing note has been filed and 
 served, a defendant cannot demur without special leave.^" 
 
 It is right here to advert to the distinction in 2)ractice between 
 taking a demurrer and answer off the file, and simi)ly overruling 
 
 1 Rraithwiiite's Manual, 175. 
 
 2 Cheesborou^li v. Wright, 28 Beav. 173 ; 
 Braitliwaite's Manual, 175. 
 
 3 Hruce v. Allen, 1 Mild. 656; see also 
 Tavl'-r c. Miliicr, 10 Ves. 444; Bolder v. 
 Lord Huntingfiplfl, 11 Ves. 28.3,293; see 
 Davenport r. .Sniflen, 1 Barb. Ch. 223; 
 Lakens v. Fiel'leti, 11 Paijre, 044; Bedell 
 V. Bedell, 2 Barb. Ch. 99; 1 Smith Ch. I'r. 
 (2d Am. ed.) 207,208; Burrall v. Haine- 
 teaux, 2 Paige, 331 ; 2 Madd. Ch. I'r. {4th 
 Am. ed.) 264, 265; Kenrick v. Clayton, 2 
 Bro. C. C. (Perkins's ed.) 214, note (1), 
 and cases cIIimI. 
 
 •» Ord. XXXVII. 17; see, however, Ord. 
 XXXVII. 3. 
 
 5 For forms of summons in such case, see 
 Vol. III. 
 
 6 Braithwaite's Pr. 59. 
 
 7 Dyson v. Benson, G. Coop. 110; Cust 
 V. Boode, 1 S. & S. 21; Burrall v. Raine- 
 teanx. 2 Paige, 331. 
 
 8 Osborn v. Jullion, 3 Drew. 552; see 
 also Ld. Red. 208,210; Stejihenton u. Gar- 
 diner, 2 P. Wnis. 286; Tomkin v. Leth- 
 bridge, 9 Ves. 178; Taylor v. Milner, 10 
 Ves. 444,440; Baker r. Mellish, 11 Ves. 
 73; White )•. Howard, 2 Ue G. & S. 223; 
 Read v. liuvton, 3 K. & J. 100. 
 
 9 IMellor r. Hall, 2 S. & S. 321; Curzon 
 V. Lord I)e la Zouch, 1 Swanst. 185, 193 
 Attorney-General v. Shield, 11 Beav. 441 
 A'igers V. Lord Audley, 2 M. & C. 49, 52 
 Braiihwaite's Pr. 59. 
 
 10 Ord. XIII. 7; see ante, p. 510.
 
 FILING, SETTING DOWN, AND HEARING DEMURRERS. 593 
 
 the demurrer, thereby leaving the answer on the file. The former Cn.XlY.§4. 
 
 course appears to be the one adopted, in all cases where there has "■ y ' 
 
 been an irregularity in the formal parts or the filing of the de- 
 rauiTcr, whether it be accompanied by an answer or uot.^ The 
 latter course is adopted, wherever the demurrer has been properly 
 filed, but the Court is of opinion that it is insufiicient, or that it 
 has been oveiTuled by the answer. 
 
 Where a demun-er has been taken oflT the file for irregularity, it jn what man- 
 ceases to be a record of the Court, and the defendant may, there- ^^'"^gl'Jg, 
 fore, put in a plea, or another demurrer (if his time for demurring 
 has not expired), as if no demurrer had been filed ; but the de- 
 murrer is not taken off the file by the mere pronouncing of the 
 order: it must actually be withdrawn fi'om the file.^ To effect 
 this, the order, when drawn up, should be carried to the Recoi'd 
 and Writ Clerk : who will withdraw the demurrer, annexing the 
 order to it.^ 
 
 Notice of filing the demurrer must be served on the plaintiff, or Notice of 
 his solicitor, on the day on which it is filed, before seven o'clock fi'"^g- 
 in the evening, or, if on a Saturday, before two o'clock in the 
 afternoon.* Neglect to do so will not, however, render the de- Consequences 
 murrer inoperative ; but the time allowed to the opposite party togiVeSkl 
 for taking the next step in the cause will be extended, so as to 
 give liim the benefit of the time he would otherwise lose by the 
 delay in the service.^ 
 
 Upon the demurrer being filed, the plaintiff should take an riaintifT's 
 office copy ; « and if he apprehends that the demurrer will hold ^"".'^'^.'^J^^^'"^ 
 good, he should either obtain an order to dismiss his bill with nitd. 
 costs," or, if lie thinks the defect can be remedied by amendment, 
 he nuiy obtain an order of course, on motion or petition, to amend in what cases, 
 his bill, in the usual way, upon payment of 20s. costs.® This, p|!|J,Jt"ff;„ay 
 however, can only be done before the demurrer has been set anuiul after 
 down : afterwards, the plaintiff must pay the defendant's taxed fii"(i""^*^'^ 
 costs of amending, and of the demurrer;'* and must make a special 
 appUcation, by summons, for leave to ainend.^^ The 206-. cover 
 
 1 Leave to nmcnd the title of a Joint <le- Hare, 207, overruled on appeal, ib. 210; 11 
 murrer and answer luis been ffiven, cm the Jur. i'J. 
 
 hearihf; ot a motion to fake it oil' tin- file " liruitliwaite's Pr. 4K1. 
 
 forjrreguliirity. Osborn y. Jullion,3 Drew. ' See post, Chap. XIX. § 1, Dismissint/ 
 
 bi,i, hlA. Bills 
 
 2 (Just V. Boode, 1 S. & S. 21. " See antf, p. 411. For forms of motion 
 
 3 lliiil. paper and petition, see Vol. HI. 
 
 * Ord. III. 9; f)rd. XXXVII. 2; nnte, '■> Wiirburton r. London and IMackwall 
 
 pp. 4"<t, 45.0. i-'or lorm of notice, sec Vul. ItailwMy Conipiiiy, 2 Hcav. 2;'):); llfarn i'. 
 
 HI. Way, C Heav. 368; Hotlick r. Kcviiolds, 9 
 
 <■' WriKlit r. Angle, 6 Hare, 107; Lowe W.'li. 398, V. (J. K. If he n('f;lt(ts to 
 
 1). WillianiH, 12 IJeav. 482; .lones «. .lones, amind within the proper time, tlie bill is 
 
 1 .lur. N. S. HCU, V. C.S.; LInyd r .Solici- gone. Ib. 431. 
 
 turM ami (ii'iieral Life Assurance ("onipunv, >" lloflick v. RevnoMs, »<Z(t ««/>. Furfonn 
 
 3 W. K. tJ40; 24 L. .1. <;ii. 704, V. C. VV'.; of siiuunons, see Vol. HI. 
 see, however, .Mattlicws v. (Jhichester, 6 
 VOL. I. 38
 
 594 
 
 DEMURRERS. 
 
 rii.xiv. H- 
 
 EitluT party 
 
 down tlio 
 deinunvr. 
 
 Time :illowcil 
 to sot down 
 doimirror, 
 aiid conse- 
 quence of 
 neglect. 
 
 When plain- 
 titt' may set 
 down, or 
 amend, after 
 period tixed. 
 
 Costs of 
 demurrer not 
 set down. 
 
 Vacations. 
 
 Plaintiff 
 should set 
 down. 
 
 Order to set 
 down de- 
 murrer: how 
 obtained, 
 and demurrer 
 how set 
 down. 
 
 •M the costs of tlio (lonmnvr ; l)ut wlion the (lomnvrcr Ims been 
 ]>ro]):uv(l, thoiio-lt not actually on tlic lile, bctbrc tlic amoiulmeiit, 
 the costs will be costs in the cause. ^ 
 
 It was formerly necessary, after iilino- a (Icimin-cr, to enter it 
 with the rjegistrar. This need not now be done ; but u])ou the 
 liliui:: thereof by the defendant, either party may set the demurrer 
 down for argument immediately." 
 
 AVluMv a demurrer to the wliolc bill is not set down for argu- 
 ment within twelve days after the filing thereof, and where a de- 
 murrer to ])art of a bill is not set down Avithin three weeks after 
 the tiling thereotj and the plaintitf does not within such tweh^e 
 days or three weeks, as the case may be, serve an order for leave 
 to amend the bill, the demurrer will be held sufficient to the same 
 extent, and for the same purposes, and the plaintiff is to pay to 
 the demurring party the same costs, as in the case of a demurrer 
 to the whole, or part of a bill, as the case may be, allowed upon 
 argument.^ 
 
 In order to entitle a plaintiff to be relieved against the conse- 
 quences of not setting down the demurrer, or obtaining an order 
 to amend, Avithin tlie periods fixed by the General Orders, he must 
 make out a clear case of accident, mistake, or surprise.* 
 
 The order for pajTnent of the costs of a demm-rer, neglected to 
 be set down, is an order of course, and may be obtained on petition 
 at the Rolls, or on motion.^ 
 
 The. times of vacation are not reckoned in the computation of 
 time for setting doAvn demurrers.® 
 
 As, in the event of a demurrer not being set down for argument 
 within the limited period, the defendant derives the same benefit 
 as by its allowance, the duty is cast uj)on the plaintiff, if he is de- 
 sirous that it should be submitted to the judgment of the Court, 
 of having it set down.'' 
 
 The party wishing to set down a demurrer for argument must 
 obtain an order fin- that purpose. Unless specially directed by an 
 order of the Lord Chanc(;llor or Lords Justices, the demurrer must 
 be set down to be heard before the Judge to whose Comt the cause 
 
 1 I'.ainbrigge v. Moss, 3 K. & J. 02 ; 3 
 Jur. N. S. 107. 
 
 2 Ord. XIV. 11. 
 
 8 Ord. XIV. 14, 15; Matthews v. Chi- 
 chester, 6 Hare, 207; on appeal, i6. 210; 
 11 Jur. 48; Reg. Kegul., 15 March, 1860, 
 r. 4. 
 
 ■* Knight V. I^Iarjoribanks, 14 Sim. 198; 
 decided, however, on the 34th Ord. of 
 Aug., 1841; Sand. Ord. 884; 3 Beav. 
 xxii.; Matthews v. Chichester, 11 Jur. 49, 
 L. C; decided on the 46th Ord. of Ma}', 
 1845; Sand. Ord. 1000; 7 Beav. xli.; 1 
 I'hil. Ixxxvi., which was similar; over- 
 ruling S. C. 5 Hare, 207. 
 
 s Jacobs V. Hooper, 1 W. R. C. For 
 form of order, see Seton, 1257, No. 11; 
 and for forms of petition and motion pa- 
 per, see Vol HI. 
 
 6 Ord. XXXVn. 13 (3). 
 
 7 By the 33d Equity Rule of the United 
 States Courts, the phiintifi' may set down 
 the demurrer or plea to be argued, or he 
 may take issue on tlie pica, it', upon an 
 issue, the facts stated in the plea be deter- 
 mined for the defendant, they shall avail 
 him, as far as in Law and Equity ihey 
 ought to avail him.
 
 FILING, SETTING DOWN, AND HEARING DEMURRERS. 
 
 595 
 
 is attached.^ If the cause is attached to the Court of oue of the Cii. XIV. § 4. 
 
 Yice-Chancellors, this order is obtained on a petition of course, to ^- y ^ 
 
 the Lord Chancellor, being left at the order of course seat in the 
 Registrars' Office, and is dated the day the petition is left ; and 
 the demurrer is set do^\Ti by the order of course Clerk the same 
 day. If the cause is attached to the Rolls Court, the order is ob- 
 tained on a petition of course to the Master of the Rolls being left 
 vrith his under-secretaiy ; the order is then taken by the soUcitor 
 to the order of course seat in the Registrars' Office, and the de- 
 murrer will be set down by the order of course Clerk on the day 
 the order is left.^ 
 
 The petition must state to what Court the cause is attached,^ Contents of 
 the day when the demuiTcr was filed, and whether it be to the l^^\y^^ln° 
 whole, or part of the bill ; and be subscribed by the solicitor ; and, 
 if presented to the Lord Chancellor, it does not require any fiat or 
 stamp.* 
 
 If by inadvertence the demurrer is not actually set down on the where 
 day the petition or order is left at the Registrars' Office, it will f,^^"^rtentiy 
 nevertheless be considered to have been set down on that day.^ oniittcd to be 
 
 The order directs the demurrer to be set down next after the g^^^.^J^ ^'^ 
 pleas, demun-ers, and exceptions to answers already appointed for order to set 
 hearing ; and it must be served upon the solicitor for the oppo- ^'^'^^■ 
 site party, at least tAvo clear days before the day appointed for 
 hearing. 
 
 If the defendant is desirous of withdraAving his demurrer, he Withdrawal 
 may do so, even after it has been set down, on pajanent of costs." "^ tltmurrer. 
 
 A demun-er is not usually put in the paper for hearing, in Vice- Demurrer: 
 Chancellors' causes, until six clear days, and in Rolls' causes, until i^^omS'''^'^ 
 two clear days have elapsed since it was set down. paper- 
 
 Before the demun-er is heard, two printed copies of the bill, and papers for 
 a copy of the demurrer must be left with the train-bearer of the ^"^1^"- 
 Vice-Chancellor, or, in a Rolls' cause, with either the under-secre- 
 tary or train-bearer, for the use of the Court.'' 
 
 In general, the Court will not advance a demurrer ; * in cases. Advancing 
 however, of bills for injunction, as an injunction will not usually the heunug. 
 be granted ])cndiiig a demurrer, the Court will, ujjon application, 
 
 1 f)r(i. VI. 4. order, by consent, directing demurrer to 
 
 2 Ord. XXI. 9; Reg. Regul. 15 March, be withdriiwn, and extending time to an- 
 1800, rr. 1, 2, 3. For form of order, see swer, see Setoii, 1251), No. lo. 
 
 Seton, 12.07, No. 10; and for forms of pe- '' If this is neglected, the solicitor may 
 
 lition. see Vol. III. be ordered to pay costs Ord. XXI. 12. 
 
 8 {(rd. XIV. 10. Counsel's brief consists of copies of tho 
 
 * Keg- Hegui. 15 ^larch, 1800, r. 3. bill and demurrer. In I'.rnest v. I'artn.! "e, 
 
 6 Egrcmoiit V. Cowell, 5 Beav. 017; 7 11 W. U. 715, V. C \V., the clnirgo fur ob- 
 
 Jur. 52. scrvations was disallowed, on a party and 
 
 •» I )ownes?'. East India Company, 6 Ves. party taxation; see Morgiin in liuvey, 
 
 680. In KolU' causes, the onler may, l)y 354. 
 
 consent, be obtained on petition of course; " Anon., 1. Mad. 557. 
 
 for form of petition, see Vol. III. For
 
 596 
 
 DEMURRERS. 
 
 Til. XIV, U. 
 
 whore (lefoiul- 
 aiit omits to 
 appear ; 
 
 where plain- 
 titt" omits to 
 appear. 
 
 Where 
 demurrer 
 struck out. 
 
 Manner or 
 hearing. 
 
 wlicre the matter is pressing, order tlie (U'uiurrer to l)c nrgue<l im- 
 inediately.^ 
 
 When n deinnrrer is eaHed on for liearing, and tlie defendant 
 omits to appear, the demurrer will ho struek out of the jiaper, 
 unless tlie ]ilaintirti if ho has set down the demiu'rer, can produce 
 an aflithivit of service upon the defendant ov his solicitor of the 
 oi'der to set it doAvn ; or, if the defendant set down the demurrer, 
 unless the plaintiff can i:)roduce an affidavit of service upon him- 
 self of the order for setting down the demurrer.^ If the i)laintiff 
 can ])roduce such an affidavit, it is conceived that the demurrer 
 Avould be overruled, as in the case of a plea."^ It has been hold, 
 liowever, that in such a case the demurrer is not necessarily over- 
 ruled, but the plaintiff must be heard in support of the bill.* "When 
 the defendant api)cars, and the plaintiff does not, the demurix'r 
 Avill also be struck out of the pa2)er, urdess the defendant can pro- 
 duce an affidavit of service upon himself of the order for setting 
 down the demurrer ; or unless, in the event of the defendant hav- 
 ing himself set down the demurrer, he can produce an .affidavit of 
 service by him, upon the plaintiff or his solicitor.*^ On the produc- 
 tion of such an affidavit, in either case, the defendant may have the 
 demurrer allowed with costs.® 
 
 Whei*e a demurrer has been struck out of the paper, a fresh 
 order must be obtained for setting it down, which may be had upon 
 petition of course as before explained, provided the api)lication is 
 made within the time allowed to set down the demurrer.'' If 
 othei'M'ise, a special api^lication for leave to set it dow^n must be 
 made. 
 
 The usual course of j^roceeding, when the demurrer comes on 
 for hearing, and all parties appear, is for the counsel in support of 
 the demurrer to be first heard, next the plaintiff's counsel, and then 
 the leading counsel for the demurring party replies. In hearing a 
 demurrer, the argument is strictly confined to the case ap])earing 
 upon the record ; and for the purposes of the argument the matters 
 of fact stated in the bill are admitted to be true.^ 
 
 Where it has appeared, upon the hearing of a demurrer to the 
 
 1 Cousins V: Smith, 13 Ves. 164, 167; 
 Jones V. Taylor, 2 I\Iad. 181; Const v. 
 Harris, T. &. K. 510, n.; London, Chat- 
 ham, and Dover Railway Co. v. Imperial 
 Mercantile Credit Association, L. K. 3 Ch. 
 Ap. 231; and see post, Chap. XXXVl. 
 § 2, Irijiinctiiins. AVhere justice requires 
 it, an injunction will be granted pending 
 a demurrer. Wardle v. Claxton, 9 Sim. 
 412. 
 
 2 For form of afiidavit of service, see 
 Vol. III. 
 
 8 MazaiTcdo v. Maitland, 2 M:id. 38. 
 For form of order overruling demurrer, on 
 
 non-appearance of defendant, see Seton, 
 1258, No. 13. 
 
 * I'enfbld v. Ramsbottom, 1 Swanst. 
 552. 
 
 6 On an nppeal from an order allowing 
 a demuirer to the whole bill, the plaintiff 
 is entitled to begin. Attorney General v. 
 Aspinall, 2 M. & C. 613. 
 
 Jennings v. I'earce, 1 Ves. J. 447. 
 
 1 Ante, p. 5!)4; Ord. XIV. 14, 15. 
 
 8 Ante, p. 543. F<jr iorm of order on the 
 hearing of a demurrer, see Seton, 1258, 
 No. 12.
 
 EFFECT OF AIXOWING DEMURRERS. 
 
 597 
 
 whole bill, that the defendant is entitled to demur to some part C"- ^IV- § 5 
 only, the Court has permitted the demun-er to be amended, so as 
 to confine it to the parts to which the defendant has a right to 
 demur : ^ in such cases, however, the most usual course is to over- 
 rule the demurrer, and to give the defendant leave to put in a 
 new demurrer to such j^ait of the bill as he may be advised.^ 
 
 Where a demurrer is ordered to stand over, it must be for a 
 definite period.^ 
 
 Ameudmeiit 
 of demurrer 
 peniiitted at 
 the hearing. 
 
 "Where 
 ordered to 
 stand over. 
 
 Section V. — The Effect of allowing Demurrers. 
 
 Strictly speaking, upon a demun-er to the whole bill being 
 allowed, the bill is out of Court, and no subsequent proceeding 
 can be taken in the cause.'* The Court often, however, on hearing 
 the demurrer, gives leave to amend, and there are cases in which 
 it has afterwards pennitted an amendment to be made;^ and it 
 seems that, even after a bill has been dismissed by order, it has 
 been considered in the discretion of the Court to set the cause on 
 foot again.® 
 
 Where the plaintiff", after a demurrer had been allowed, im])rop- 
 erly ol^tained an order to amend his bill, and the defendant de- 
 murred, it was held, that by demurring the defendant had waived 
 the iiTcgularity, and that the course he ought to have taken Avas, 
 to apply to discharge the order to amend for irregularity.'' 
 
 Although the effect of allowing a demurrer to the whole bill is 
 to put the cause out of Court, the allowance of a partial demurrer 
 
 Amendment 
 of bill, after 
 allowance of 
 demurrer. 
 
 1 Glegg V. Legh, 4 Mad. 193, 207; 
 Marsh v. Marsh, 1 C. E. Green (N. J.), 
 3'Jl, 397, 398. 
 
 ^ Thorpe v. Macauley, 5 Mad. 218, 231. 
 In Marsh r. Marsh, 1 C K. Green (N. J.), 
 391, 398, the demurrer was overruled, with 
 leave to sunend hy stating the grounds of 
 demurrer. 
 
 « Ord. XXr. 13. 
 
 * Smitli r. Barnes, 1 Dick. 67; Watkins 
 V. Bu.ah, 2 Dick. 701; see Chuvete v. Ma- 
 son, 4 Gref-n ([own), 231. 
 
 6 Lord Coniiigsliy v. Sir .1. Jekvll, 2 P. 
 Wms. 30(1 ; I,i,Ad V. Loaring, C Ves. 773, 
 779. It is not necessary in Massiichusetts, 
 even where a demurrer poes to the equity 
 of the whole bill, that the plaintiff should 
 make a motion to amend, in anticipiition 
 of an adverse deciiion. According to the 
 practit^e in this State, after a demurrer is 
 sustained, the case is not regarded as out 
 of Court 8') that it cannot be reinstated by 
 amendmcut in mutters of substance, be- 
 cause iipjiliratinn therefor was not made 
 before the decision on tlie demurrer was 
 pronounced. The usual mode is to allow 
 the plaintiff a reasonable time after a de- 
 
 Order to . 
 amend, after 
 demurrer to 
 whole hill 
 allowed, is 
 irregular. 
 
 ^^'here a par- 
 tial demurrer 
 allowed, 
 
 murrcr has been sustained, either on the 
 ground of a defect in form or for want of 
 equity, to move for leave to amend his bill 
 for the purpose of supplying the defect, or 
 alleging new or additionni grounds for 
 the equitable relief which he seeks. And 
 such amendments are always allowed, 
 unless sufficient cause is shown to the con- 
 trary. In this respect the practice of the 
 Court is ver3' liberal. But a motion to 
 amend is not allowed as a matter of right. 
 Merchants' Hank of Newburyport r. Ste- 
 venson, 7 Allen, 489, 491. IJy the 35th 
 Rule of the United States Courts, if a de- 
 murrer shall be allowed upon the hearinsr, 
 the Court may, m its discretion, upon mo- 
 tion of the plaintiir, allow him to amend 
 his bill ui)on such terms as it shall deem 
 reasonable. See Alexander v. Moj-e, 38 
 Miss. 040. 
 
 " Per Lord Eldon in Baker v. Jlellish, 
 11 Ves. 08, 72. It is conceived that this 
 dictum would not be followed, unless in a 
 verv special case. 
 
 7" Watkins v. Ijush, 2 Dick. 701; but 
 see U). 702, n.
 
 598 
 
 DEMURRERS. 
 
 (■ii.xiv.§r.. 
 
 pliiintilVin!! 
 prxH'i'i'd in 
 
 Lilnrty to 
 aiiu'iul the 
 liill: wlion 
 i;ivou. 
 
 Where 
 demurrer 
 allowed, with 
 leave to 
 amend, eosts 
 are in tlisere- 
 tion of Com't. 
 
 Leave to 
 amend docs 
 not preelude 
 appeal hy 
 plaintit^'; 
 hut defeml- 
 ant, desirous 
 to appeal, 
 should apply 
 to stay 
 amendment. 
 
 Effect of 
 order to 
 amend upon 
 second 
 amendment 
 of bill. 
 
 When demur- 
 rer is or is 
 not a bar to 
 a new bill. 
 
 is not nltoinled with siu-li :i oonseqiK'uco. Tho hill, or that part of 
 it which \\:is not covered by the demurrer, still rciuains in Court, 
 and tho i)laintitt' may obtain an order to amend, or adopt any other 
 proceedings in the cause, in the same manner that he might liave 
 done had there been no demurrer.^ 
 
 On hearing tlio demurrer, the Court will, where it sees that the 
 dotoct pointed out by the demurrer can be remedied by amend- 
 ment, and substantial justice requires it, make a special order at 
 tho hearing of the demurrer, adapted to the circumstances of the 
 case ; ^ and where an order -was made allowing the demurrer, and 
 giving leave to amend, and no amendment was n\ade within the 
 proper time, it was held, that the bill was not out of Court.^ 
 
 "When the demurrer is alloAved, and leave is given to amend, 
 there is no rule that the defendant is to have his costs; but they 
 are in tlie discretion of the Court.* 
 
 "Where, upon allowing the demurrer, leave is given to the plain- 
 tiif to amend his bill, he is not thereby prevented from appealing 
 against the order ; ^ but if the defendant is desirous of appealing 
 from such order, he ought to apply to stay the amendment, until 
 the appeal has been disposed of; ^ or, at any rate, he ought not to 
 act upon the order giving the plaintiff leave to amend : as, for 
 instance, by demurring to the amended bill. 
 
 It may be observed, that the amendment of a bill, in pursuance 
 of an order made upon the hearing of a demurrer, if made before 
 the defendant answers, will not preclude a plaintiff from making 
 one amendment after answer, upon motion of course.'' 
 
 A demurrer, being frequently on matter of form, is not, in gen- 
 eral, a bar to a new bill ; but if the Court, on demuri-er, has clearly 
 decided upon the merits of the question between the parties, the 
 decision may be pleaded in another suit.^ 
 
 "Wliere a demurrer to the whole or part of a bill is allowed upon 
 
 i Ld. Red. 215; Emansv. Emans, 1 Mc- 
 Carter(N. J.). 114, 120. 
 
 2 Ibid. ; Wellesley v. Wellesley, 4 JI. & 
 C. 554,558; 4Jur. 2"; Schneider r. Lizardi, 
 9 Beav. 461, 468; Kawlings v. Lambert, 1 
 J. & H. 458; leave to amend is not piven 
 as a matter of course. Osborne v. Julliou, 
 3 Drew. 596; and see Watts v. Lord Kg- 
 linton, 1 C. P. Coop. t. Cott, 29, and the 
 cases there collected ; and as to leave to 
 amend given after denmrrer for want of 
 parties, see Tyler v. Bell, 2 M. & C. 89, 
 104, 110, and the cases there cited; 1 Jur. 
 20. 
 
 » Deeks v. Stanhope, 1 Jur. N. S. 413, 
 V. C K. ; see, however, Hoflick v. Rey- 
 nolds, 9 W. K. 431, V. C. K.; and Armi- 
 Ftead V. Durham, 11 Deav. 428; 13 Jur. 
 330. 
 
 * Schneiderf. Lizardi, «Wsm/7. ; Bothom- 
 ley f. Squires, 1 Jur. N. S. 694, V. U. K. ; 
 
 and see Harding v. Tingey, 12 W. R. 703, 
 V. C. K. In New Jersey, the Court has 
 no discretionary power in such a case. 
 The costs are lixed bv the Chancery Act. 
 Hicks V. Campbell, 4"C. E. Green (N. J.), 
 183, 187. 
 
 6 Lidbetter v. Long, 4 M. & C. 286; 
 Davis V. Chanter, 2 IMiil. 545, 547. For 
 form of order on appeal, see Seton, 1152, 
 No. 3; and for form of notice of appeal, 
 see Vol. IIL 
 
 6 Wellesley v. Wellesley, 4 M. & C. 554, 
 556 ; 4 Jur. 2. 
 
 ' Pesheller v. Hammett, 3 Sim. 389; 
 Bainbrigge v. BaddeU-y, 12 Beav. 152; 13 
 Jur. 997 ; and see Ord.'lX. 13. 
 
 8 L(l Red. 210; and see Londonderry 
 (Ladv) t'. I'.aker, 3 (i]ft'. 128; affirmed, 7 
 Jur. "N. S. 811, L. JJ.; Oriental Steam 
 Company v. Briggs, 8 Jur. N. S. 201, 204; 
 10 W. R. 125, L. C.
 
 EFFECT OF ALLOWING DEMURRERS. 
 
 599 
 
 argumeBt, the plaintiff, unless the Court otherwise du-ects, is to pay 
 to the demurring party the costs of the demurrer ; and if the de- 
 murrer be to the whole bill, the costs of the suit also,^ including 
 the costs of a motion for an injimction, or other motion pending 
 in the suit.^ 
 
 "Where any gi-ounds of demuiTer are urged, on arguing a de- 
 murrer, beyond the grounds therein expressed, and those grounds 
 which are so expressed are disallowed, the defendant will have to 
 pay the same costs as if the demurrer were overruled,^ although 
 the grounds of demuiTcr so newly urged may be allowed.* 
 
 In general, however, where the demurrer, ore tenus, has been 
 allowed, and the Court has given the plaintiff leave to amend his 
 bill, the course of the Court appears to be to make him liable to 
 the costs of the demurrer.^ The rule, however, with respect to 
 costs upon such occasions, is not imperative, and the Court has a 
 discretionary power ; ® and therefore, Avhere Sir Lancelot Shadwell 
 V. C. upon alloAving a demun-er ore tenus, for want of parties, 
 ordered the defendant to pay the costs of the demurrer on the 
 record, although he had given the plaintiff leave to amend his bill 
 generally, Lord Cottenham refused to interfere.'^ 
 
 Where a demun-er is put in on two grounds as to one of which 
 it succeeds, but fails as to the other, no costs will in general be 
 given.' 
 
 Where a demuiTcr to a bill is alloAved, and afterwards the order 
 allowing it is, upon re-argument, reversed, the defendant, if he has 
 received the costs fi'om the plamtiff, will be ordered to refund them, 
 upon application by the plaintiff;® and so, if a demurrer has been 
 overniled, and tlie order is reversed upon re-hearing, the plaintiff, 
 if he has received costs from the defendant, must refund tliem. 
 
 One of several defendants who has demurred successfully, is 
 entitled, as of right, to have his name struck out of the record ; 
 and may apply to the Court by motion for this purpose.^" 
 
 Ch. xiy. § 5. 
 
 where 
 demuiTcr 
 ore tenus 
 is allowed ; 
 
 where leave 
 to amend is 
 given ; 
 
 where 
 demiuTer 
 succeeds in 
 part, and fails 
 in part; 
 
 where order 
 on demurrer 
 reversed. 
 
 Name of 
 defendant, 
 successfully 
 demurring 
 struck out. 
 
 1 Ord. XIV. 13; see Rule 35 of the 
 United States Courts. For cases whore 
 the Court directed otlierwise, see Schneider 
 p. Lizard], fi IJcav. 461,408; liotlioinlev 
 r. Squires, 1 .)ur. N. S. 61)4, V. C K."; 
 Mor(<!in & I)Mvey, 21. For precedent of a 
 bill of costs for pri'p:iring and setting down 
 a demurrer, sec i/j. iVi. 
 
 2 (JIadstone I'. Ottoman Bank, 1 II. & 
 M. 505; » Jur. N. S. 246; Morgan & 
 Davey. 22. 
 
 8 jiint is to say, the costs occasioned by 
 the demurrer, uiil(".s the Court otherwise 
 directi; see Ord. XIV. 12. 
 
 * Ord. -XIV 1; Tourton v. Flower, 3 P. 
 Wms. 371; Wooil v. Thcnifison. 2 Dick. 
 610; Attorrifv-General w. Brown. 1 SwMiist. 
 205, 288; Mortimer v. Fraser, 2 M. & C. 
 
 173,174; Jl'Intyrev. Connell, 1 Sim. N. 
 S. 257, 2.J8; see also Lund v. Blanslianl, 4 
 Hare, 23; Brown v. Douglas, 11 Sim. 
 283; Thompson v. University of London, 
 10 Jur. N. S. GG9, 671; 33 L. J. Ch. 625, 
 630, V. C. K. 
 
 '' Xewton V. Lord Egmont, 4 Sim. 674, 
 685. 
 
 Ord. XIV. 1, 12. 
 
 T Mortimer v. Fraser, 2 M. & C. 173. 
 
 8 Benson ;'. Iladfiehl, 5 Beav. 646, 664; 
 and see Allan v. Iloulden, 6 Beav. 148, 
 150; Morgan & Davey, 18. 
 
 Oats V. Cliapniaii, 1 Ve.s. S. 642; S. C. 
 2 Ves. S. 100; 1 Dick. 14K. 
 
 10 Barrv v. Croskey, 2 .1. & IL 136; 8 
 .lur. N. S. 10 Seton, 1258. For form of 
 notice of motion, sec Vol. HI.
 
 GOO 
 
 DEMURREKS. 
 
 iii.XlV.5t'. 
 
 Section VT. — The Effect of overruling Demurrers. 
 
 nouuirror 
 caniiKt >t!ind 
 I'or answer. 
 
 At^or (lonuir- 
 riT to tlip 
 wlu.lo l.ill 
 ovi'rruli'cl, 
 no second 
 denuiiTor 
 nlloweil. un- 
 less it be less 
 extended ; 
 
 but no second 
 demurrer 
 without 
 leave. 
 
 After demur- 
 rer overruled, 
 defendant 
 may plead ; 
 
 but not with- 
 out leave. 
 
 If no leave, 
 defendant 
 must answer 
 
 A (li'inurror, being a iiiutc thing, cniuiot be ordered to stand for 
 an answer.' 
 
 Alter a demurrer to tlie wliole l)ill has been overruled, Ji second 
 demurrer to the same extent cannot be allowed, for it Avould be in 
 ctleet to re-hear the case on the first demurrer : as, on argument 
 iif a demurrer, any cause of demurrer, though not shown in the 
 demurrer as filed, may be alleged at the bar, and if good will sup- 
 port the demnrrer." A demurrer, however, of a less extensive 
 nature, may, in some cases, be put in ; and where the substance 
 of a demurrer was good, but informally pleaded, liberty was given 
 to take it ofi' the file, and to demur again, on payment of costs ; ^ 
 and a defendant has been allowed to amend his demurrer, so as to 
 make it less extensive.* 
 
 A second demurrer, however, though less extended than the 
 first, cannot, after the first demurrer has been overruled, be put in 
 wnthout leave of the Court ; but the case is different where the 
 first has been taken off' the file for irregularity. This leave is gen- 
 erally granted, upon hearing the first demvu-rer ; but it has been 
 permitted upon a subsequent application by motion. 
 
 Although a defendant cannot, after the Court has overruled his 
 demurrer to the Avhole bill, again avail himself of the same method 
 of defence, yet, as it sometimes happens that a bill which, if all the 
 parts of the case were disclosed, would be open to a demurrer, is 
 so artfully drawn as to avoid showing upon the face of it any 
 ground for demurring, the defendant may, in such case, make the 
 same defence by plea : stating the fiicts which are necessary to 
 bring the case truly before Court.^ As it is, however, the rule of 
 the Court not to allow two dilatories without leave, or, in other 
 words, as the defendant is only permitted once to delay his answer 
 by plea or demurrer, without leave of the Court, he must, previ- 
 ously to filing his plea, obtain the leave of the Court to do so : 
 otherwise, his plea may be taken off" the file.^ 
 
 Fi-om what has been said it results that, after a demurrer to the 
 wOiole bill has been overruled, the defendant, unless he obtains 
 leave to put in a demurrer of a less extended nature, or a jilea 
 either to the whole bill or to some part of it, must, if required, 
 put in a full answer ; and the Court, on oven-uling the demurrer, 
 
 1 Anon., 3 Atk. 530. 
 
 2 Ld. Ked. 217. 
 
 8 Devonsher v. Newenham, 2 Sch. & 
 Lef. 199. 
 
 ■» Glefig V. Legh, 4 l^Iad. 193. 207; 
 Thorpe v. Macauley, 5 Mad. 218, 231. A 
 
 clerical error may be amended, on an ex 
 parte order, before the twelve days have 
 cx|)ired. Kicliardson v. Hastings, 7 Beav. 
 58. 
 
 6 Ld. Kod. 210. 
 
 « Itowley V. Eccles, 1 S. & S. 511, 512.
 
 EFFECT OF OVERRULING DEMURRERS. 
 
 601 
 
 will, on the application of the defendant, fix a time for his so do- 
 ing ; if no time is fixed, the defendant must put in his answei' 
 within the usual time (if it has not expired), or make a special 
 application, by summons, for further time.^ 
 
 Where the demurrer is not to the whole bill, and is accompanied 
 by an answer, the plaintiff", after the demurrer is overruled, if he 
 wishes for a further answer, must except to the answer for iusuffi- 
 ciency ; and, therefore, the defendant need not put in any further 
 answer until after the plaintiff" has taken excej^tions to the answer 
 already put in, and such exceptions have been either allowed or 
 submitted to.^ Generally, the plaintiff" should not except to the 
 answer until the demurrer has been decided upon : otherwise he 
 admits the demurrer to be good.^ Where, however, the defendant 
 demurs to the relief only, and answers as to the discovery, the 
 plaintiff" may, it seems, except to the answer before the demurrer 
 is heard.^ 
 
 Although, generally, where the plaintiff amends otherwise than 
 by adding parties, he loses his right to except to the answer for 
 insufficiency, yet, where a demurrer has been overruled, he is not, 
 by amending generally, precluded from calling for an answer to 
 that part of the interrogatories covered by the demurrer.^ 
 
 Where a demurrer is overruled, and the plaintiff amends his 
 bill, the defendant is not precluded fi-om appealing against the 
 order overruling the demurrer;" but after the defendant has served 
 the ])laintiff Avith notice of the ajipeal, an order of course to amend 
 the bill is ii'regular, and will be discharged with costs, and the 
 amendments exj^unged.'' 
 
 don, 12 Beav. 217; see Kuvpers v. Ref. 
 Dutch Church, 6 Paige, 570." 
 
 * L(l. Red. 317; London Assurance v. 
 East In'li:i Company, 3 P. Wms. 325; 
 Boyd ).'. Mills, 13 Ves. 85. 
 
 4 I.d. Red. 317; 3 P. Wms. 327, n. (S). 
 
 6 Tavlor v. Bailej-, 3 M. & C. 677, 681; 
 3 Jur. 308. 
 
 « Jackson v. North Wales Railway 
 Company, 13 Jnr. 69, L. C. After de- 
 murrer to a bill was overruled, and time 
 piven to answer, the defendant was ullowed 
 to demur again without leave first obtained, 
 on the iilaintiir's amending his bill by 
 joining a new party plaintiff. Moore v. 
 Armstrong, 9 Porter, 697. So where an 
 amendment is made to a l)ill beloro an- 
 swer iilcd, even if it be immaterial and 
 trivial, a defendant may demur, <le novo, 
 to the whole bill; the defendant may 
 demur to the amendniont at anv time. 
 Booth V. Stumper, 10 (Jt-o. ion. Hut 
 when an answer has been filed, the defend- 
 ant cannot, after demurrer made and de- 
 cided, demur again to tlio whole bill, 
 unless the amendment is material. Ibid. 
 
 T Ainslie v. Sims, 17 Beav. 174. 
 
 Ch. XIV. § 6. 
 
 Where par- 
 tial demurrer 
 overruled, 
 defendant 
 need 
 
 not answer 
 further till 
 plaintiff has 
 excepted. 
 
 Time for 
 excepting. 
 
 1 Trim. v. Baker, 1 S. & S. 469; T. & 
 R. 253; Waterton v. Crofl, 6 Sim. 431, 
 438; see Atlantic Ins. Co. v. Lemar, 10 
 Paige, 385; Henderson v. Dennison, 1 
 Carter (Iiid.), ir,2\ Fleece f. Russell, 13 
 III. 31; Xorth Western Bank v. Nelson, 1 
 fJrattan, 108; Sutton i). Catewood,6 Munf. 
 398; Lafavour v. .Justice, 5 Blackf. 336; 
 Piiterbaugh v. Elliott, 22 111. 157. Where 
 a demurrer to a bill, for want of equity is 
 overruled, a final ilecree, without giving 
 the defendant an fipportunity to denv the 
 allegations in the bill, is erroneous, tjmith 
 r. Bailantyne, 10 Paige, 101; Forrest v. 
 Kobin'-on, 4 I'orter, 44; Bottorf t'. Conner, 
 1 Blackf. 287; Cole County v. Augney, 
 12 .Miss 1.32. 
 
 In .Maine, Walton J. in La?nbcrt v. Lam- 
 bert, 52 Maine, 544, 545, remarked that 
 the overruling of a demurrer in K(|uity is 
 never followed by a decree making a fmal 
 dispo'-ition of the case; the order is tliat 
 the party demurring answer further. And 
 lie added: "The entry in this case should 
 be, ' drmnrrer to crosiUjiU overruled — Jur- 
 ther niwner rrouire'l.' " 
 
 2 Cotes 1'. 'turner, Bunb. 123; and see 
 Attorney-Generttl v. Corporation of Lon- 
 
 Gcneral 
 amendment, 
 after demur- 
 rer overruled, 
 does not pre- 
 clude right to 
 an answer to 
 interrogato- 
 ries covered 
 by demurrer; 
 nor an 
 appeal ; 
 but order of 
 course to 
 amend, after 
 notice of 
 appeal, is 
 irregular;
 
 602 
 
 DEMURRERS. 
 
 Cii.XIV.§i'. 
 
 Roson-iUiun, 
 till hoariiii;, 
 of quest iou 
 raisi'il liy 
 di'uiuiTi'r. 
 
 Costs. 
 
 WTiere gen- 
 eral demurrer 
 overruled, 
 plaintirt" mav 
 lilc traversing 
 note imme- 
 diately, or 
 after time 
 given to 
 plead, &c. 
 
 .MUt a (Irimirrer lias Won ovcM'niled, and notice of appeal given, 
 the plaintitV cannot obtain an order of course to dismiss his bill, 
 with costs.^ 
 
 The Court will t)ftcn, although it overrules the demurrer, reserve 
 to the defendant the right of raising the same question at the 
 hearing of the cause ; - and Avhere there is a doubtful question on 
 a title, the Court will sometimes overrule the demurrer, without 
 prejudice to any defence the defendant may make by way of an- 
 swer.^ 
 
 "Where any demun-er is overruled, the defendant is to pay to the 
 plaintiff the taxed costs occasioned thereby: unless the Court 
 otherwise directs.* 
 
 Whei'e a denuirrer to the whole bill is overruled, the plaintiif, 
 if he does not require an answer, and proposes to file a traversing 
 note, may file such note immediately : unless the Court, upon over- 
 ruling such demurrer, gives time to. plead, answer, or demur; and 
 in such case, if the defendant files no plea, answer, or demurrer 
 within the time so allowed by the Court, the plaintiff, if he does 
 not then require an answer, may, on the expiration of such time, 
 file such note.^ 
 
 1 Lewis V. Cooper, 10 Beav. 32 ; S. C. 
 nom. Cooper v. Lewis, 2 Phil. 178, 181. 
 
 2 Wilsim V. Stanhope, 2 Coll. 629; Jones 
 V. Skipworth, 9 Beav. 237; Norman v. 
 Stihy, ib. 560, 566 ; Earl of Shrewsbury v. 
 North Staftbrdshire Hailwav Company, 9 
 Jur. N. S. 787; 11 W. R. 742, V. C. K.; 
 Baxendale v. West Midland Railway Com- 
 pany, 8 Jur. N. S. 1163, L. C. 
 
 3 "Brownswonl r. I'Mwanls, 2 Ves. S. 
 243, 247; Mortimer v. Hartley, 3 De G. 
 & S. 316; Evans v. Evans, 18 Jur. 666, 
 L. JJ. ; Cochrane v. Willis, 10 Jur. N. S. 
 162, L. JJ. ; Collingwood v. Russell, 10 Jur. 
 N. S. 1062; 13 W. li, 63, L.JJ.; ante, p. 
 642. 
 
 4 Ord. XIV. 12; see Schneider v. Li- 
 zardi, 9 Beav. 461, 468; Botliomlev v. 
 Squires, 1 Jur. N. S. 694, V. C K. ; Mor- 
 gan & Davey, 21. As to the costs: wliere 
 a denuirrer ore tenus is allowed, see Ord. 
 XIV. 1, ante, p. 599 ; and where a defendant 
 succeeds on one ground, and fails on an- 
 other, see ante, p. 599. Costs were refused 
 where the bill did not show that relief 
 must be granted at the hearing. Barber 
 V. Barber, 4 Drew. 666; 5 Jur. N. S. 1197. 
 For precedent of a bill of costs where de- 
 murrer overruled, see Morgan & Davey, 
 448. 
 
 6 Ord. XHL 4; ante,i>. 516,
 
 CHAPTER XV. 
 
 PLEAS. 
 
 Section I. — The General Nature of Pleas. 
 
 A DEMURRER has been mentioned to be the proper mode of 
 defence to a bill, Avhen any objection is apparent upon the bill 
 itself: either fi-om matter contained in it, or from defect in its 
 frame, or in the case made by it.^ When an objection to the bill 
 is not apparent on the bill itself, if the defendant means to take 
 advantage of it, he ought to show to the Court the matter which 
 creates the objection: either by answer, or by plea, which has been 
 described as a special answer, showing or rel}^ing upon one or more 
 things as a cause why the suit shoidd be either dismissed, delayed, 
 or barred.^ The object of a plea is to save to the parties the 
 expense of going into evidence at large ; and, therefore, wliere a 
 defendant neglected to raise his defence by plea, the bill has been 
 dismissed without costs.^ 
 
 The defence proper for a ])lea is such as reduces the cause, or 
 some part of it, to a single point, and from thence creates a bar to 
 the suit, or to the part of it to which the plea applies.* It is not, 
 liowever, necessary that it should consist of a single fact: for 
 thougli a defence offered by way of plea consists of a great variety 
 
 Distinction 
 between a 
 demmrer 
 and a plea. 
 
 Object of 
 a plea. 
 
 Plea: when 
 the proper 
 defence. 
 
 Need not 
 consist of a 
 single fact 
 
 1 Ante, p. 542. 
 
 2 \A. Red. ai9; Stnrv Eq. PI. § G49; 
 Liilx'- Va\. pi. 238; (Jurfoll c Wurinf,^ .3 
 Gill & .1.401; HearttiJ. Coniinj,', 3 l'aif,'e, 
 5W; Ta[.pan r. Kvans, 11 N. IL 311. If a 
 previous ilcmurrcr In- the deret)dant has 
 bi;fii overruleil, he cannot plead without 
 the leare of the Court. Rowley v. Eccles, 
 1 S. & S. .011, (inU-, p. GOO. 
 
 ' Sanders r. IJenson, 4 Heav. 360, 357; 
 Jacks'.n v. Opj,', .John. 307, 402. 
 
 < Ld. Red. 210, 205; 1 Smith Ch. Pr. 
 (2d Am. ed.) 217; (ioorlrich v. Pendleton, 
 3 Jolwi. Ch. 3H4; Story Va\. 1M. § 052; Sims 
 P. I.ylc, 4 Wai.h. C. C. 302, 304. The 
 p:ea must he jx^rfect in itself, so that if 
 true in f;ict, it will put an end to the cause. 
 Allen V. Randolph, 4 John.Ch. G03; Drog- 
 
 heda v. Malone, Finlaj-'s Dig. 449. If the 
 plea is the oidy defence, it must allege 
 some fact, which is an entire bar to the 
 suit or some substantive part of it; and, if 
 defective in this respect, whetiicr true or 
 false, the plaintiff shoidd move to set it 
 aside for iiisulliciency. Newton v. Thayer, 
 17 rick. 120; I'iatt v. Oliver, 1 McLean, 
 303; Union Hranch R.K. Co. v. Hast 
 Tenn. an<l Georgia R.R. Co., 14 Geo. 327. 
 A demurrer is never resorted to for the 
 purpose of settling the validity of a i)lea. 
 Fravcrs «. Ross, 1 McC^iirter (N. .).), 254. 
 
 A plea simply denying a fact allc^'cd 
 in the bill, and setting up no new matter, 
 is bad. Hailey v. Lc RoV, 2 Kdw. Ch. 
 514; Miilignn V. Millege, 3 (Jranch. 220; 
 Black V. Black, 16 Geo. 445.
 
 G04 
 
 PLEAS. 
 
 Vn. XV. 
 
 Affirmative 
 picas. 
 
 Negative 
 pleas. 
 
 of c-ircuinst;incos, yet, if thoy all ivud to oiu> point, the plea may 
 be good ; ^ they must, however, be material.'^ 
 
 In o-oneral, a })lea relics upon matters not api)arent on the bill, 
 and, in efteet, suggests that the phuntifF lias omitted a fact which, 
 if stated, would have rendered the bill demurrable;'' and in most 
 cases, where a defendant insists upon matter by plea which is ap- 
 parent u])on the face of the bill, aiid might be taken advantage of 
 by demurrer, the plea will not hold.* This rule, however, as will 
 be seen presently, is in some cases liable to exception. 
 
 "Where a plea merely states matter not ap])arcnt upon the bill, 
 and relies upon the eflect of such matter as a bar to the plaintirt''s 
 claim, it is called an affirmative plea. Such pleas usually proceed 
 upon the ground that, admitting the case stated by the bill to be 
 true, the matter suggested by the plea affords a sufficient reason 
 why the plaintiff should not have the relief he pi-ays, or the dis- 
 covery which he seeks ; and when they are put in, the Court, in 
 order to save expense to the parties, or to protect the defendant 
 from a discovery which he ought not to make, instantly decides 
 upon the validity of the defence : taking the plea, and the bill so 
 far as it is not contradicted by the plea, to be true.^ 
 
 Although pleas, generally, consist of the averment of some new 
 fact, or chain of facts, not apparent upon the face of the bill, the 
 effect of which is, not to deny the facts of the bill, but, admitting 
 them 2)ro hac vice to be true, to destroy their effect, there are cases 
 in which the plea, instead of introducing new facts, merely relies 
 upon a denial' of the truth of some matter stated in the bill, upon 
 which the plaintiff's right depends. A plea of this sort is called 
 a negative plea^ It seems, formerly, to have been made a question, 
 how far a negative plea could be good;'' and where a bill Avas filed 
 by an individual claiming as beir to a person deceased, and the 
 defendant pleaded that another person was heir, and that the 
 plaintiff was not heir to the deceased, Lord Thurlow >overruled 
 
 1 Ih. 296; Fox ». Yates, 24 Beav. 271; 
 Campbell v. Beaufoy, Johns. 320; Saun- 
 ders V. Druce, 3 Drew. 140, 156; and for 
 the plea in that case, see Drew. Eq. PI. 
 146, and ih. 147, n ; Story Eq. I'l. § 652; 
 Rhode Island v. Massachusetts, 14 I'eters, 
 211. But it is otherwise where the defence 
 consists of a great variety of facts and cir- 
 cumstances, rendering it necessary to go 
 into the examination of witnesses at large. 
 Laud V. Sergeant, 1 Edw. Ch. 164; Story 
 Eq. ri. §§ 653, 654. 
 
 a Andrews v. Lockwood,2 Phil. 398; 11 
 Jur. 956; Bowyer v. Beamish, 2 Jo. & 
 Lat. 228. 
 
 3 Wigram on Disc. 22, n. (e); see An- 
 drews V. Lockwood, uhi sup. 
 
 * Billing V. flight, 1 Mad. 230, 236; 
 
 Phelps V. Garrow, 3 Edw. Ch. 139; Story 
 Eq. PI. § 647, C60; Varick v. Dodge, 9 
 Pa go, 149. 
 
 6 Ld. Red. 295. 
 
 6 Story Eq. PI. § 551, note, § 657 et seq. ; 
 Wigram, Discov. (2d ed.) pp. 110-] 1 8. This 
 class of pleas lias two peculiarities: in the 
 first place it relies wholly up"n matters 
 stated in the bill, negativing such fact.s as 
 are materi<d to the rights of the phiintiff; 
 and in the next place it requires an answer 
 to be filed, which is .subsidiarj- to the pur- 
 poses of the plea. Story Eq. PI. §670; 
 see also Cosine v. Graham, 2 Paige, 177 ; 
 Robinson v. Smitli, 3 Paige, 222; Mitchell 
 V. Lenox, 2 Paige, 280; Smets v. Wil- 
 liams, 4 Paige, 304. 
 
 7 Ld. Red. 230.
 
 GENERAL NATURE OF PLEAS. 605 
 
 ihe plea, on the ground that it ^as a negative plea ; ^ bnt this Ch. XV. § i. 
 
 decision was aftei'wards doubted, by the learned Judge himself,- '•— ' y ' 
 
 when pressed by the necessaiy consequence, that any person false- 
 ly alleging a title in himself, might compel any other person to 
 make a discovery, which that title, if true, would enable him to 
 require, however injurious to the person thus imj^roperly 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 
 for as to compel an answer.^ Since that time, frequent instances 
 have occun-ed in which negative I3leas have been allowed. Thus, 
 where to a bill praying that the defendant might redeem a mort- 
 gage or be foreclosed, the defendant pleaded that there was no 
 mortgage, Lord Eldon allowed the plea ; * and so, where a bill 
 prayed that the defendant might be restrained fi*om setting up 
 outstanding terms of years in defence to an action of ejectment, 
 and the defendant pleaded that there were no outstanding terms, 
 tlie plea was held good ; ^ and where a bill prayed an account of 
 partnershii^ transactions, a negative 2^1ea that there was no part- 
 nership was allowed.® It has also been held, that negative matter 
 ought to be pleaded negatively.'' 
 
 It is proper here to mention another si^ecies of plea which often pj^^g ^f 
 occurs in the books, and is not, strictly speaking, either a plea matters 
 affinuing new matter, or negativing the i^laintilf's title as alleged by^the bUl. 
 in the bill, but one which re-asserts some fact stated in the bill, 
 and which the bill seeks to impeach, and denies all the circum- 
 stances which the jjlaintifF relies upon as the ground upon which 
 he seeks to impeach the fact so set up. Thus, where a bill is 
 brouglit to impeach a decree, on the ground of fraud used in ob- 
 taining it, the decree may be pleaded in bar of the suit, with aver- 
 ments negativing the charges of fraud.® Of the same nature are 
 pleas sotting up the award itself, to a bill filed for the purpose of 
 impeaching it on the ground of j^artiality or fraud in the arbitra- 
 tors;' or setting up stated accounts or releases, where bills have 
 been filed for the purpose of setting them aside. Pleas of this 
 nature liave been objected to, because they are in fiict excejitlones 
 cjusdrm ret cvjus petihir dlssolutio ;'^^ but tlie frame of a bill in 
 Equity, in such cases, necessarily produces this mode of jdeading: 
 for, in the instance above alluded to of a plea setthig up the decree 
 
 * Newman r. Wallis, 2 Bro. C. C. 143, Sanders v. King, C Mad. CI ; 2 S. & S. 277; 
 14C; Guiin V. I'ri'^r, 2 Dick. C57; 1 Cox, Yorker. Fry, M:id 05; Tlinnfr v. Kdgar, 
 1!<7. 2 S. & S. '274, 281; Arnold v. Heaford, 1 
 
 •'■ Hall r. Noyes, 3 Bro. C. C. 483, 489. M'F.d. & Y. 330. • 
 
 ^ \A. lied. 2^!l; Jones v. Duvis, 16 Ves. ' Roberts v. Madocks, 16 Sim. 55, 57; 
 
 20J, 204. 11 Jur. «;i8. 
 
 * Hitchcns r. Lander, G. Coop. 34, 38. « Ld. K«d. 239. 
 
 * Arnutage ?'. Wa'l.sworth, 1 Mad. J.^O, o lb. 200; Tittenson v. Peat, 3 Atk. 
 Hi5; l>awHon ». Tilling, 10 Sim 2U3, 20'.i; 529. 
 
 12 .lur. ■Am. 10 pu.sey v Dcsbourrie, 3 1'. Wms. 317. 
 
 6 Drew ». Drew, 2 V. & B. 159, 161;
 
 606 PLEAS. 
 
 On. XV. § 1. to :i l)ill seeking to iinpc:ich it, it is obvious thnt, if the bill Imd 
 
 ^■" Y ^ stilted the title under whieli the ]>l:iintilV eh-unieil, without, stating 
 
 tlie decree under "whieh the del'endant ehiinied, tlie det'enihmt 
 niiglit liave ])leaded the decree alone in bar. If the bill had stated 
 the jdaintitf's title, and also stated the decree, and alleged no fact 
 to imjieaeh it, and had yet sought relief on the title concluded by 
 it, the defendant might have demurred : because, upon the face of 
 the bill, the title of the jdaintiff would have a])peared to be so 
 concluded. But as, by the forms of pleading in Equity, the bill 
 may set out the title of the plaintiff, and, at the same time, state 
 the decree by which, if not impeached, that title Avould be con- 
 cluded, and then avoid the operation of the decree, by alleging 
 that it has been obtained by fraud : if the defendant could not 
 take the judgment of the Court, upon the conclusiveness of the 
 decree, by plea, upon whicli 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 exjiense and vexation 
 of a second litigation on the subject of a former suit, which the 
 decree, if unimpeached, had concluded. It is therefore, permitted 
 to him to avoid entering into the general question of the plaintiff's 
 title, as if it had not been affected by the decree, by meeting the 
 case made by the jjlaintiff, which can alone give him a right to call 
 for that defence, namely, the fact of fraud in obtaining the decree : 
 which he does, by negative averments in his plea.'^ It seems to 
 have been the opinion of Sir James Wigram that, in these cases, 
 a negative jilea, meeting the matter suggested in the bill, to avoid 
 the effect of the bar set up, would alone be sufficient.^ 
 
 Any matter arising between the bill and the plea, may be j^lead- 
 Pleas of ^^'^ I^ ^^^^ been before stated, that this can be done where the 
 
 matters bankruptcy of a plaintiff or of a defendant occurs after the bill 
 
 to tiie bill. has been filed ; * and so, where a bill was filed for a discovery and 
 relief, by injunction to restrain the defendant from setting up out- 
 standing terms to defeat a writ of right, and since the filing of 
 the bill, the writ of right had been tried and determined against 
 the plaintiff, a plea that it had been so tried and determined was 
 allowed to be a good plea.^ This rule has been adopted from 
 analogy to proceedings at Common Law, where any matter which 
 arises between the declaration and the plea may be pleaded in 
 bar.' But the analogy, in this respect, between Courts of Law 
 
 1 Ld. Red. 240, 242; Bailey v. Adams, * Ante, p. 63; Turner v. Robinson, 1 S. 
 6 Yes. 5bG, 5'j7; IJuvd v. Smith, 1 Anst. & S. 3; see Tarleton v. Hornby, 1 Y. & 
 258; Freeland v. Joliiison, id. 270. C. Ex. 333, 336; Lane v. Smith, 14 Beav. 
 
 2 Wigram on Disc. pp. If^o-lb'J. 49; 15 Jur. 735. 
 
 3 Sergrove v. Jlayhew, 2 M'N. & G. 97, 6 Karl of Leicester v. Perry, 1 Bro. C. 
 99; 14 Jur. 158; De Minckwit^i v. Udney, C. 305; see Ld. lied. 254. 
 
 16 Ves. 466, 468. 6 Turner v. Eobinson, ubi sup.
 
 GENERAL NATURE OF PLEAS. 607 
 
 and Equity, Avill not extend further : for at Law, any matter which Ch. XV. § i. 
 
 woukl abate the suit, or operate as a bar, may, until the verdict ""■ y ' 
 
 has been given, be offered to the Court by a plea, teimed a plea Plea, puis 
 
 2)uis darrein continuance} In Courts of Equity, however, such a cZtinlLnce, 
 
 plea does not seem admissible, but the effect of it may be obtained at Law; 
 
 1 /. I'll'' effect ob- 
 
 by means oi a cross-biil.- tamed by 
 
 It is essential to observe that, whatever the nature of the plea cross-bill in 
 may be, whether affirmative, or negative, or of the anomalous ^^"' ^' , 
 
 J ^ ' ° ' 1 1 •■* Or double 
 
 nature above alluded to, the matter pleaded must reduce the issue pleading: 
 between the plaintiff and defendant to a single point.^ If a plea 
 is double, i. e., tenders more than one defence as the results of the 
 flicts stated, it will be bad.* Thus, a plea which stated that the 
 plaintiffs, who claimed as citizens of London, never were resident 
 there, or paid scot and lot, and that they were admitted fi-eemen 
 by fraud for the purj^ose of enjo}'ing the exemption claimed, was 
 held bad : because the facts that the plaintiffs were not citizens of 
 London, and that they were admitted by fi-aud, were totally incon- 
 sistent with each other.^ And so, where a defendant to a bill for 
 the specific performance of an agreement, put in a plea, insisting 
 upon the Statute of Frauds, and another defence. Lord Rosslyn 
 would not allow it, as it was a double defence, and directed it to 
 stand over till the hearing.* Upon the same principle, where a 
 bill was filed, i)raying a reconveyance of four estates, and the de- 
 fendant jjut in a plea whereby he insisted upon a fine as to one, 
 and averred that the estate comprised in that fine, was the only 
 part of the premises in the bill in which he claimed an interest, 
 Sir Lancelot Shadwell V. C. held it to be bad, as a double plea.' 
 
 The rule, that a plea must reduce the defence to a single ground, Kule, that a 
 must be understood as not interfering with the proposition before j.g'^'J.ce^^e 
 laid do^vTi,® that a plea may consist of a variety of facts and cir- defence to 
 cumstances: all that it requires is, that those facts and circum- grollfd! 
 stances should give, as their result, one clear ground upon which 
 the whole equity of the bill may be disposed of The rule upon 
 
 1 15 & 16 Vic. c. 70, § C9; Chitty's §053. A plea is not rendered double by the 
 Arcli. 007. mere insertion therein of several aver- 
 
 2 Ld. Red. 82 ; see Rowe v. Wood, 1 .J. ments, that are necessary to exclude con- 
 & W. 315, 3-37; Wood v. Kowe, 2 IJiigh, elusions arising from ullegiitions which 
 5!i5; Hayne v. llayne, 3 Cha. Kep. 19; aremade in the l)ill, to anticipate and de- 
 Nelt. 105; Wright v. Meek, 3 Iowa, 472. foat the bur which might be .set up in the 
 
 8 Saltus V. Tobias, 1 John. Ch. 214; plea. Hopardus v. Trinity Church, 4 
 
 Storv K(|. ri. § 654 et f<rj. I'l'iKP, 178. 
 
 * ^sobkisHen v. Haxtings, 2 Ves. .1. 84, '' (Corporation of London v. Corporntion 
 
 86; .tones «,'. Frost, 3 Mad. 1, H; Van Flook of Liverpool, 3 Anst. 738, 742; Story E(i. 
 
 r. Whitlock, 3 I'aige, 409. Duplicity in I'l. § 052. 
 
 one and the same (ilea isa Tice in pleading * ( 'ooth v. .Tackson, 6 Ves. 12, 17; 
 
 in Kquity, as well as at Law. Moreton v. Whitbread v. Brockhurst, 1 Bro. C. C. 
 
 Harrison. 1 IJhind, 490; see Saltus r. To- 404,418. 
 
 bi-.is, 7 .John. Ch. 214; Rhode Island v. V Watkins ». Stone, 2 Sim. 49, 52. 
 
 Massachusetts, 14 I'eters, 211; tioodrich ylH^■, p. 003 
 r. I't-ndleton, 3 .John. Ch. 880; Ridgelev '• 
 Wartield, 1 Bland, 494; Story Iv^. "I'l 
 
 9 Ritciiie ». Aylwin, 15 Ves. 79, 82; 
 Rowe V. Teed, ib. 372; Strickland v.
 
 608 
 
 PLEAS. 
 
 C'li. XV. 5 1. 
 
 Wlicn 
 
 various f;n'ts 
 tciul to one 
 point, they 
 may be 
 pk'ailoil in 
 one plea. 
 
 Double plea : 
 in what cases 
 allowed. 
 
 tills subject, and the reasons ui)oii wliii'li it. has been established, 
 are stated with great clearness by Lord Thiirlow, in his judgment 
 in W/n'fbn(((l \. Jirocl.-/iia\^f. His Lordship there said: "I cannot 
 agree ^vith the defendant's counsel, that any two facts which are 
 not inconsistent may be pleaded in one i)lea, I think that various 
 facts can never be pleaded in one plea, unless they are all con- 
 ducive to a single point, on which the defendant rests his defence. 
 Thus, many deeds may be stated in a j)lea, if they all tend to es- 
 tablish the single point of title ; so in the case of papacy.^ In the 
 present case, the different matters pleaded do not conduce to one 
 object. The plea of the statute is of itself a bar; but the plea, 
 that the agreement was not performed, is quite distinct : because, 
 whether a part-performance take the agreement out of the statute, 
 or 1)0 considered merely as a fraud, the point of equity is quite 
 distinct fi'om the agreement. It is a plea of two matters, perfectly 
 and cleai-ly distinct : of two things which furnish two different 
 pleas to the points made in the bill. The reason why a defendant 
 is not permitted to plead two different i)leas in Equity, though he 
 is permitted to plead them at Law, is plain: it is because at law .a 
 defendant has no ojDportunity, as he has here, of answering every 
 different matter stated in the bill. The reason of pleading in 
 Equity is, that it tends to the forwarding of justice, and saves 
 great expense, that the matter should be taken up shortly upon a 
 single point; but that end is so far from being attained, if the plea 
 puts as much in issue as the answer could do, that on the contrary 
 it increases the delay and expense. But why, it may be asked, 
 should not the defendant be i^errnitted to bring two points, on 
 which the cause dei^ends, to issue by his jDlea ? The answer is : be- 
 cause, if two, he may as well bring three points to issue ; and so 
 on, till all the matters in the bill are brought to issue upon the 
 pjlea: which would be productive of all the delay and inconven- 
 ience which pleading was intended to remedy." ^ 
 
 Although the general rule of the Court is not to allow of double 
 pleading, there are cases in which the rule will be relaxed : as, 
 where great inconvenience would be sustained by the necessity of 
 setting out long accounts, which could be obviated, if the defend- 
 ant were to be allowed to plead several matters. Cases 'of this 
 nature may occur where a bill is so framed that, if the principal 
 case made by it cannot be sup])orted, it may be sustained by some 
 
 Strickl.md, 12 Sim. 2.53, 2,59; Fox v. 
 Yates, 24 IJcav. 'z7J ; Campbell v. I5eau- 
 fov, .Johns. 320 ; .Saunders i'. Druce, .3 
 Drew. 140, 1-50; Drew. Eq. PI. 146; ib. 
 147, n.; Story Eq. I'l. § 6.52. Where the 
 allegations of a plea, beinj,' taken as true, 
 do not make out a lull det'tiicc, or whore 
 the necessary facts are to be gathered by 
 
 inference alone, the plea cannot be sus- 
 tained. Meeker «^ Marsli, Saxton (N. .).), 
 108. See Davison v. Johnson, i C. E. 
 Green (N. J.), 112, 11.3, 114. 
 
 1 Harrison v. Southcote, 1 Atk. 528, 588. 
 
 2 See Sir S. Koniillv's note of this judg- 
 ment, 1 Bro. C. C. 415, IJelt's ed., cited 2 
 V. & B. 153 n.
 
 GENERAL. NATURE OF PLEAS. 
 
 609 
 
 siibsitliary matter, wliich has been introduced for the pm-jiose of Cn. XT. § i. 
 
 maintaining the suit.^ Thus, in Gibson v. Whitehead,'^ where a "^ v ' 
 
 bill was filed, by simple contract creditors, to charge the real 
 estates of a deceased debtor : alleging, first, that the testator, by 
 his will, subjected the real estates to the pa^nnent of his debts ; 
 and, secondly, that if it was not the true construction of his will, 
 then his real estates were liable under the 47 Geo. III. sess. 2, 
 c. 74,* he ha^-ing been a trader at the time of his death, Sh- John 
 Leach V. C. made an order, upon motion, that the defendant 
 might be at liberty to j^lead : first, the will of the testator, for the 
 .pui-pose of showing that he did not thereby charge his real estates 
 with the pa}-ment of his debts; and, secondly, that he was not, at 
 the time of his death, a trader -within the meaning of the Act.* 
 Although, in the above case, the necessity for a double plea arose 
 from the circumstance of there being a sort of double or alterna- 
 tive claim in the bill, this is not the only ground upon Avhich the 
 Court acts in alloAving double pleas. The principle upon which 
 the Court proceeds, depends very much upon the extraordinary 
 inconvenience that might arise, if the defendant were not allowed 
 to take this course ; and upon this })rinciple, where a bill was filed 
 to restrain the infringement of a patent, and for an account, and 
 the defendants were desirous of disputing the validity of the 
 patent, on the grounds that, so far as the invention was new, it 
 was useless, and that, so fiir as it was useful, it was not new. Lord 
 Langdale M. R. gave the defendant leave to plead: first, that the 
 invention was not useful ; secondly, that it was not new ; ^ and in 
 Bompton v. Birdiall^ the same Judge permitted the defendant, 
 in an ejectment suit, to plead: first, that the person under whom 
 the ]»laintiff claimed was not the heir; and, secondly, that even if 
 he were such heir, the plaintilf's right was barred by the Statute 
 of Limitations. 
 
 Before a defendant puts in a double plea, he must obtain an ]^r„st have 
 order, on motion, with notice, of which he will have to pay the "" oidcr to 
 
 • r-r-T'ii warrant it. 
 
 costs, for leave to do so;^ and such a j)lca, if filed without such an 
 
 order, is irregular, and lia1»le to be overruled.* 
 
 1 Storv Rq. PI. § G57, and notes Van ^ Sec also Ilanlman r. ICIlanics, 5 Sim. 
 
 Hook r."\Vliitl'K;k, 3 Paige, 40'.); Mitr.nd 640, G4r>; 2 M. & K. 732; C. P. Coop. t. 
 
 kq. PI. liv .(('remv, 2'j5, note; DiiliiT i'. JJronKli. 361. 
 
 I)avi«on, 10 Piii>,'(V-il',. Two dislintt jjleas <» Kay v. Marshall, 1 Keen, 190, 192, 
 
 in b:ir, (liiri-niu in liu-ir nature, as a plea 197. 
 
 of the statute of limitations, and ii dis- « 4 Bcav. 558; and see observations of 
 
 charge undLT the insolvent act, cannot lie Sir .John • K<>niilly M. W. in Young v. 
 
 ideailed together, without the previous White, 17 Ucav. 532, 540; 18 .lur. 277. 
 
 Ii-ave of the Court. Sallus v. Ti^hia-', 7 '' For form of notice of motion, see Vol. 
 
 .John. Ch. 214. ill- 
 
 •J 4 Mad. 241, 246; Kay ». Marshall, 1 " Kay w. Marshidl, xdn mp.; Gibson v. 
 
 Keen, 190. Wiiitt-hl'ad, 4 Mad. 241, 215; llaidnian 
 
 8 l.'.-peiile.l by 11 Geo. IV. iSc 1 Will. r. V.Wnnw*, M »uj). ; P.aniplon r. IIikIwII, 
 
 IV. r. 47. tibi iup. ; Sallus v. Tobias, 7 John. Cli. 214. 
 
 vt.u I. 39
 
 t)10 
 
 PLEAS. 
 
 Cii. XV. $ 1. 
 
 Intnxliiotiou 
 of nil imini- 
 portjint liii't 
 will not make 
 a ploa imilti- 
 tarious. 
 
 Defendant 
 may put in 
 separate pleas 
 to ditterent 
 parts of the 
 same bill. 
 
 Plea may be 
 good as to 
 Xjart, and bad 
 as to other 
 part. 
 
 Willi roforoiioo to tlio snbjoot of niultif'ivious or double ))loa<l- 
 iiiLi:, it if^ to 1)0 iiotioo(l Ihut, where tlio Incts stated in the ])le;i are 
 suttieient to constitute a good pica, the introduction into the plea 
 of a fact Avhieh, although it puts in issue a distinct matter, is not- 
 important to the validity of the 2>lca itself, Avill not vitiate the 
 jdea.^ Thus, if a defendant pleads a release, and then avers that 
 it has been acted upon : the release being of itself a bar, wlu^ther 
 it has been acted upon or not, the further allegation that it has 
 been acted upon is unimjmrtant, and will be rejected as surplusage.^ 
 Upon this ground, where a i)lea stated facts which, connected Avith 
 the statement in the bill, would have amounted to a consjiiracy to 
 prevent a prosecution for felony, and then averred that the trans- 
 actions stated in the bill,' related to a fraudulent embezzlement by 
 a banker's clerk, and suggested that the discovery sought might 
 subject the defendant to pains and penalties, it was objected that 
 the plea w' as multifarious, because, in addition to the statement of 
 facts amounting to a conspiracy, it averred that the transactions 
 related to a fraudulent embezzlement; Lord Eldon, however, over- 
 ruled the objection : saying, that he should press a harder rule in 
 Equity than prevails ^it Law by holding, that such an averment 
 made a plea bad, Avhith in other respects was good.' 
 
 The rule that a defendant cannot plead several matters, must 
 not be understood as precluding a defendant from putting in 
 several pleas to different parts of the same bill : it merely pro- 
 hibits his pleading, without previous leave, a double defence to 
 the whole bill, or to the same portion of it. A defendant may plead 
 different matters to separate parts of the same bill, in the same 
 manner that, as w^e have seen, a defendant may put in different 
 demurrers to different portions of the bill.^ A defendant may, in 
 Uke manner, plead and demur, or plead and answer, to different 
 parts of the same bill, provided he points out, distinctly, the dif- 
 ferent portions of the l)ill which are 'intended to be covered by the 
 plea, the demurrer, and the answer ; ^ he must, likewise, where he 
 puts in several pleas to the same bill, j^oint out to Avhat j^articular 
 part of the bill each plea is apjilicable. But, although the general 
 rule is, that in the case of a partial jjlea, a defendant must specify 
 distinctly Avhat part of the bill he pleads to, the rule Avdiich has 
 been stated, as applicable to a demurrer, namely, that it cannot be 
 good in part and bad in pai-t, is not api3licable with the same 
 strictness to a plea : for it has been repeatedly decided, that a 
 plea in Equity may be bad in part and not in the whole, and the 
 
 1 Story Eq. PI. § 6C.3. 
 
 2 Claridge v. Hoare, 14 Ves. 59, G5. 
 
 3 Ibid. 
 
 4 Emmott V. Mitchell, 14 Sim. 432, 4.34; 
 9 Jur. 170; ante, p. 584. 
 
 5 He may not, therefore, simultaneously 
 plead and demur to the whole bill; 
 Lowndes v. Gariiett & IMoseley Gold Min- 
 ing Company, 2 J. & H. 282; 8 Jur. N. S. 
 694.
 
 GENERAL, NATURE OF PLEAS. (Ul 
 
 Court will allow it to so much of the bill as it is properly appli- Cn. XV. § i. 
 cable to.' "^ y ■' 
 
 The rule that a plea may be allowed in j)art only, is to be un- Rule refers 
 derstooil with reference to its extent, that is, to the quantity of extent'oruie 
 the bill covered by it, and not to the ground of defence offered by pi^-a- 
 it ; and if any part of the defence made by the plea is bad, the 
 whole must be overruled." Thus, if a defendant pleads a fine and 
 non-claim, which is a legal bar, and a purchase for a Valuable 
 consideration without notice of the plaintiff's claim, which is an 
 equitable bar : if either should appear not to be a bar,- as if the 
 defendant by answer shoiild admit facts amoimtiug to notice, or if 
 the ])lea, with respect to either part, should be informal, the wlj,ole 
 must be overruled. There seems to be no case in which the Court 
 has separated the two matters pleaded, and allowed one as a bar, 
 and disallowed the other.^ 
 
 But, although it is the office of a plea to reduce the defence to Of avtrment* 
 a single j^oint, it is necessary, in order to its validity, that all mat- '" P'*^''®' . 
 ters which are essential to bring it to that point, should be stated 
 on the lace of the plea, so that the Coin-t may at once decide 
 whether the case which the plea presents to the Court is a bar to 
 the case made by the bill, or to that part of it which the plea seeks 
 to cover. Thus, if a bill is brought to recover the possession of 
 an estate, a defendant may, in cei'tain cases, protect himself by a 
 plea : stating that he was the piu'chaser of the estate, and that he 
 paid a valuable consideration for it, and that he had not, at the 
 time of the purchase, any notice of the title or claim of the plain- 
 tiff to the property. This is called " a 2)lea of purchase for val- 
 uable consideration, wdthout notice," and is, if true, a good bar to 
 the suit. It will not, however, be sufficient merely to state, by 
 way of jdca, that the defendant is a purchaser for a valuable con- 
 sideration, without notice ; he must state upon the plea, that the 
 person from whom he purchased had, or pretended to have, such 
 an interest in the property as entitled him to convey it to the 
 defendant; that it was conveyed to the defendant by the projxT 
 mo<U; of conveyance; that a valuable consideration was paid for 
 it l)y the defendant; and, that the defendant had no notice of the 
 claim of the plaintiff: for the coincidence of all these facts is 
 
 1 Ivl. Fieri. 200; Coop. F.q. Pi. 230; United States of America t'. McRiic, I.. R. 
 
 Rcames on rir^s, 45; Karl of Sufl'olk v. 3 (Jli. Ap. Ill, '.I2; Story K(|. I'l. §§ 0'J2, CIKJ; 
 
 Green, 1 Atk. 450; Diinonlf jj. IMaUe, ih. Kri-ncli v. Shotwcll, 20 .lolin. GtiS; S G. 
 
 62; Ilugf^ins I.'. York Buililinf,'s Cornjiany, 5 .loliii. (jli. 555; Kirkpatrick u. White, 
 
 2 Atk. 44; Dormer v. Fortc'-cue, ih. 284; 4 Wasli. C. C. 505. 
 
 Turner v. Mitrlioll, 1 Dick. 240; U'.fhe v. '^ Ld. Red. 297; Salmon v. Dean, 3 M"N. 
 
 M..rjc<-il, 2 Soil. & I.ef. 721, 725; Mayor of & C. .344, ;j4S; 14.1iir. 235; aiidsei^ II. wilt 
 
 London r. Levy, 8 Ves. 403; Harrii-oii «. v. ticwitt, II W. R. h40, V. O. K : s.n 
 
 Southcote, 1 At'k. 528, 530; 2 Ves. S. 3b0, Mad. I'lank Road Co. v. Wat. I'laiik Road 
 
 807 ; Karl of Derby v. Duke of Atliol, 1 Ves. Co., 5 Wis. 173. 
 S. 203, 205; 2 Ve.s. S. 337; I'.ell r. Wood- » Ld. Red. 205. 
 
 ward, 42 N. II. 103; Ld. Chelmsford in
 
 1)12 ^ PLEAS. 
 
 < M. \\ . § 1. lUH'i'ssnrv to constitute a good bar in E<juity to a suit of tlic nature 
 
 ^^ > — -^ alhuled to ; ^ ami the omission of any of tliem would render the 
 
 defenec invaUd : because, the plaint itf lias a right, by replying to 
 the plea, to i)Ut all the matters contained in it in issue, and by that 
 means to eom])el the defendant to support them, or at least such 
 oi them as are affirmatively stated, by evidence. The statements 
 of these necessary facts, in a plea, are called" " averments " ; and 
 the necessity for their introduction, points out the general distinc- 
 tion between demurrers and pleas : for, if the fact necessary to 
 constitute a good plea, appears sufficiently upon the bill, so as to 
 exclude the necessity of averments, the bill might, in most cases, 
 be. objected to by demurrer.'^ 
 In negativing Another office of averments in a plea is, to exclude intendments, 
 th' bM*r"* "^ which would otherwise be made against the pleader : for, if there 
 calouiatVd to in any chaige in the bill which is an equitable circvnnstance in 
 pLa"" ^ * '^ favor of the jjlaintiff 's case against the matter pleaded, such as 
 fraud or notice of title, the Court will intend the matters so 
 charged against the pleader, unless they are met by averments in 
 the plea.* Thus, where a bill was filed by a remainder-man 
 against a tenant for life, for an account of timber cut upon the 
 estate, embracing a period of many more than six years previous 
 to the filing of the bill, which was in 1824, and alleging that, in 
 answer to certain inquiries which the plaintiff had made as to the 
 timber, the defendant had furnished certain accounts, from which 
 it apjteareil that, since the year 179-i down to the year 1821, cer- 
 tain quantities of timber had been cut in each year, amounting to 
 sums mentioned in the bill, and the defendant pleaded the Statute 
 of Limitations in bar, confining his averments only to the date of 
 the filing of the bill : the Court overruled the plea, because it 
 held, that the alleged render of the accounts in the bill, bringing 
 the accounts down to the period within six years before the filing 
 of the bill (which was not negatived by any averment in the plea), 
 defeated the oj^eration of the statute.'* To have constituted a 
 good plea in that case, there should have been an averment, that 
 no such accounts as those alleged in the bill had been rendered. 
 
 1 Ih. 275; Jackson v. Rowe, 4 Russ. 2 Bicknellv. Gough, 3 Atk. 558; Roberts 
 
 514, 523; High v. Biitie, 10 Yerger, 335; v. IlartUv, 1 Bro. C. C. 56; Billings. 
 
 Doiinell V. King, 7 l.eigh, 3iJ3 ; GiilKth Flif;lit, IMad 230,230; Steff «. Andrews, 
 
 V. Grillitli, 1 Hoir. Cli. 153; Maloi.y v. 2 Mad. 6, 10. It is uunece^^sary to ncga- 
 
 Keriian, 2 Dru. & \\'ar. 31; Craig v. Lei- tive facts which, if stated in tlie bill, would 
 
 per, 2 Verger, 193; Jewett v. I'uliiier, 7 have defeated the plea. l.d. Red. 299; 
 
 Juhn. Cli. Co; Gidmtian v. Cunningham, Forbes v. ijkelton, 8 Sim. 336, 345; 1 Jur. 
 
 8 Cowtn, 3t;i; Simzer v. De Jleyer, 2 117; see Story Eq. 1*1. § 679 ti seq. and 
 
 Paif;e, 574; Droghed;i r. !Malone, Fiiday's notes. 
 
 Dig. 449. A p'.ea, setting up a forfeiture, 8 Ld. Red. 298; Saunders v. Druce, 3 
 
 by breach of a condition hub*ei)uent for Drew. 140, 161; Drew. Eq. PI. 146; ib. 
 
 tiie payment of money, in bur of a suit in 147, n. 
 
 Kquity for relief, inlist di-tinctly aver ■» lliny v. H<iny, 1 S. <Sc S. 568, 580. 
 
 laches on the part of the phiiutitf. liaucock 
 V. Carlton, 6 Gray, 39.
 
 GENERAL NATURE OF PLEAS. 613 
 
 Tlie necessity for the introduction of such averments into a plea is C""- ^'^'^ § ' 
 
 obWous, when we consider that a plea, for the purpose of deciding ''^ y 
 
 on the validity of it, like a demurrer, admits all the ficts stated in 
 the hill to be true, so far as they are not controverted by the 
 plea : ^ so that, whenever matters of foct ai-e introduced in the 
 bill, which, if true, would destroy the effect of the matter pleaded, 
 the plea vnl\ be overruled, unless such matters are controverted by 
 the averments. 
 
 From what has been said above it will be seen, that averments Affirmative 
 in pleas may naturally be divided into affirmative and negative ^^'^'"^e"**- . 
 averments. Affirmative averments are those Avhich are not sug- 
 gested by any matter upon the face of the bill which is inconsist- 
 ent with the matter pleaded, but are necessary in order to render 
 .the matter pleaded a complete bar. Thus, if a stated account is 
 set up by the plea, the defendant must aver that the account is 
 just and true, to the best of his knowledge and belief; and so, in 
 the instance above referred to, of a plea of purchase for valuable 
 consideration without notice, it has been stated that the defendant 
 must aver, in his plea, that the j^erson from whom he purchased 
 had, or pretended to have, such an interest as entitled him to con- 
 vey the estate to the defendant ; and that it was conveyed to the 
 defendant in a jiropcr manner ; and that a valuable consndei-ation 
 was paid for it: and that the defendant had no notice of the plain- 
 tiff's title : the concurrence of all these matters being requisite to 
 constitute a good equitable bar to the plaintiff's claiin.''^ It 
 may be objected, that the last matter aven-ed, namely, the Avant of 
 notice, being negative matter, cannot properly be called an affirm- 
 ative avennent; but it is not the mere fact of averring affirma- 
 tively or negatively which constitutes the distinction; but whether 
 the matter be introduced by way of affirmation of the defendant's 
 plea, or of negation of such of the plaintiff's statements as are in- 
 consistent with the j)lea. Thus, the very fact of want of notice, in 
 a y)lea of ])urchase for a valuable considei-ation, may be both affirm- "^' ^ 
 
 atively and negatively averred: for, if the bill merely sets out 
 the jilaintiff's title, and does not charge the defendant with having 
 any notice of it, tlie want of notice being one of tlie circumstances 
 necessary to eonstitute the equitable bar, must be averred in tlie 
 j)l('a: in Avliicli case, according to the distinction above pointeil 
 out, (he averment is affirmative. And so, if the bill actually 
 charges the defendant with notice, the notice must be equally 
 denied by Mvcnucnt; in which case the averment will be a negati\-e 
 averment. 
 
 I Plimkrt r Vcmnn, 2 Atk. 51 ; rx^rhc don v. Johnson, 1 C. E. Green (N. J.), 113, 
 »J. M »r2'-ll,2S(h.& I-ff. 721,727; MrKw.-n 114. 
 V. iJrondliead, 3 Stockt. (N. J ) 131 ; Dnvi- '^ Ante, p. 611 ; Ld. Red. 275.
 
 614 
 
 PLEAS. 
 
 111. W. 5 1 
 
 averiuents. 
 
 A noixativo nvi'rnu'nl, llicrefoiv, is tliat s])0('ios of averment 
 whicli is made use of (o contradii't any statement or cliarc;e in the 
 bill, wliieh, if uneontradicted, Avould be to do away Avith tlie eifect 
 of the matter pleaded. The most common case in wliicli this form 
 of averment is used is, where notice or fraud are alleged in the bill, 
 for the jmrpose of obviating some antiei])ated defence Avhich may 
 be set up by the defendant.^ It is to be observed, that in Meadows 
 v. TJie Duc/iess of Kingston^"^ Lord Bathurst seemed to be of 
 opinion, tliat notice and fraud were to be denied, by way of aver- 
 ment in the plea, in cases only whei'e the denial made part of the 
 equitable defence, as in the cases of purchase for valuable consider- 
 ation, where the want of notice creates the equitable bar : but in 
 Devie v. Chester,^ a decree establishing a modus having been 
 pleaded to a bill for tithes, in which the plaintiff stated that the 
 defendant set up the decree as a bar to his claim, and, to avoid the 
 effect of the decree, charged that it had been obtained by collusion, 
 and stating facts tending to show collusion, the Lord Chancellor 
 was of opinion that the defendants, not having denied the collu- 
 sion by averments in the plea, although they had done so by 
 answer in support of the plea, the plea was bad in form, and he 
 overruled it accordingly. 
 
 This brings us to tlie consideration of the cases, in which it is 
 plea must be necessary that a plea should be supported by an answer.* We 
 auswer: have before seen,^ that wherever a bill, or part of a bill, the sub- 
 
 stantive case made by which may be met by a plea, brings forward 
 facts which, if true, would destroy the effect of the plea, those facts 
 must be negatived by proper averaients in the plea: otherwise, 
 they will be considered as admitted, and so deprive the defendant 
 of the benefit of his defence. A plea, however, cannot be excepted 
 to : and, as it is not necessary that an averment in a plea should 
 do more than generally deny the facts charged in the bill,'' the 
 plaintiff might, if it wx^re not possible to require an answer from 
 the defendant, in addition to his plea, be deprived of the inde- 
 feasible right which he has to examine the defendant upon oath, 
 as to all the matters of fact stated in the bill which are necessary 
 to support his case.'' To obviate this result, the rule under the 
 
 wliich the cliarj^e is founiled." So under 
 32d Equity Rule of the Unite<i States 
 Courts, where a plea is such, that an an- 
 swer is required to sii])port it, it will he 
 overruled unless such answer is put in. 
 
 In what cases 
 
 1 Se"? Fish v. .Miller, 5 Paige, 26. 
 
 2 Ld. Hed 277, n.; Amb. 756, 761. 
 8 I.d. H'-d. 277, n.; see also Moare v. 
 
 Parker, ibid. ; 1 Bro. C C. 578, 580 ; 1 Cox, 
 224, 228. 
 
 * See Storv Kq. PI § 681 et seq., and 
 notes; Sims v. Lyle. 4 \Va<h. C. U. 303, 
 304. In Ma--acliusetts, under Rule 10, of 
 the Rules of Practice in Chani'erv, " in any 
 case, in which the bill cliarges fraud or 
 conibinaiion, a plea to ^uch part must be 
 accompanied with an answer supporting 
 the [)lea. and ex(^licitiv denyini; the 
 f. aud or coinbinalioii, and the fact on 
 
 Ilagrhorp v. Hook, 1 Gill & J. 270. 
 
 5 Ante, p. 012. 
 
 6 l.,l. Red. 275, 297. 
 
 " Wigram on Disc. 50. Where the 
 plaintifi' waives the necessitj' of an answer 
 being put in on oath, if the defendant 
 puts in a plea to the bill, he need not sup- 
 port it by answer. Ileartt v. Corning, 
 3 Paige, 506.
 
 GENERAL NATURE OF PLEAS. 615 
 
 old practice (where an answer was always necessan'), was, that any Cn. XV. § i. 
 
 statement or charge in the bill aflbrding an equitable circumstance "^ y ^ 
 
 in favor of the ]jlaiutift''s case against the matter pleaded (such as Under former 
 fraud or notice of title), must be denied by Avay of answer.^ In auswer^' 
 general, an answer in support of a plea could not be required in required, 
 
 °' . ,, , where equi- 
 
 tliose cases where such negative averments as those above stated table cireum- 
 were not necessary ; where the defence was by a pure plea, that is, chargeV^^'^^ 
 a plea merely suggesting matter in avoidance of the pkiintiff 's ijut „ot in 
 right to sue, as stated in the bill, an answer in support of the plea tasesof pure 
 was not required.^ In such a case, the defendant, by his plea, 
 admitted the plaintiff's case, and so full and complete was the ad- 
 mission, that if, after argument, issue was joined upon the truth of 
 the plea, and the plea found false, there was an end of the dispute, 
 and the plaintiff was entitled to a decree upon the imj^lied admission 
 of his case.^ Where, however, a plea was in substance negative. Required, in 
 though in fonn affirmative, it was held, that it must be accompanied p"^a in sub- 
 by an answer as to the allegations, wliich, if true, would have dis- stance nega- 
 
 •' ® tive, in form 
 
 proved the plea.* affirmative; 
 
 The same principle also required, that a negative plea should be or where bill 
 supported by an answer in those cases only in which the bill stated ij^l^'v^jiv ot'*^' 
 or charged facts by way of evidence of the jjlaintiff's right. It cvideijce of 
 Avas required in those cases, because the plaintiff, having a clear ri'^'iu/ 
 right in equity to a discovery of all matters within the knowledge 
 of a defendant which woidd enable him to sup])ort his case,^ it 
 would have been against that principle if a defendant could, by 
 merely denyhig the existence of the claim, have deprived the plain- 
 tiff of the means of proving its validity." 
 
 Un<ler the })resent practice, if no interrogatories are filed, the Under pres- 
 defendant nee<l only aver the facts necessary to render the i)lea a f-.''i'^'i?,'f!',™' 
 
 ** *' 1 It no inter- 
 
 Complete equitable bar to tlie case made by the bill, and need not rogatories, 
 
 put in any answer in support of the plea. If interrogatories are support not 
 filed, llie princiijles of the old cases, Avith respect to an answer nL-cc^^nry; 
 
 . , 1 .,1 . . „ it interioj^a- 
 
 .sujtportmg the })lea, still remain in force. tories, former 
 
 The cases in which it is necessary that a j)lea should be sup- appj-e™ 
 
 1 Ld. Red. 298; see, as to answering wards, 2 Ves. S. 243; Websteri'. Webster, 
 the siHtemeiit or charpe, Denys v. [.oeoek, 1 Sm. & G. 489; 17 Jur. 315; 4 De G., M. 
 3 M. & C. 20.-,, 234; 1 Jur. CO.j; Chiidwick & G. 437. 
 
 V. llroadwood, 3 ISeav. r,30, 539; 5 .lur. * Ilailand 4). Emerson, 8 Rligh. N. S. 62. 
 
 359; I'iiilt r. Oliver. 1 McLean, 295; IJel- c Sand'TS v. King. G Mad 61; 2 S.&S. 
 
 I'.ws V. Stj.n'-, 8 N. H. 280. Ff a l>ill srtn 277; Yorlu- r Kry, Mad. 05; Tliring v. 
 
 forth matter wli'cli may avoid a bar to the Ivlf^ar, 2 S. & S. 274, 'ihl; IJ'iniman v. 
 
 Kuit. it miiHt be piirlicubirly and "precisely Kllnmes, 5 Sim. 640, 619; 2 M. i^ K. 732; 
 
 denied in the au'^wcr. New Kiig. l{:ink i'. C. V. i'ooyt. t. Hrough. 351. , 
 
 I.ewi", 8 I'|(k. 113, 117; sec Story K(|. « Story Efi. I'l. §§ 670, 671, 681. Antiked 
 
 I'l. §§ 670. 674, 675 et seq., and note-""; Mo- negative plea denying a piirtoership is not 
 
 giinluA I,'. Triiiiiy Church, 4 I'aige, 178; siillicieiit. It mu.st be »iii)pi>rted by iin 
 
 SonzcT I'. l)e Meyer, 2 I'aige. 074. answer. Iiinesr. Kvans, 3 Ivlw. Cli. 454; 
 
 2 See Wlicclef V. Piper, 3 Jone8 Eq. see Kventt v. Watts, 3 Kiiw ('h. 480; 
 (N. (;.) 249. Hall i;. Noycs, 3 IJro. C. C. (I'erkins's ed.) 
 
 ■"• Wigrain on Disc. 56; Wood i). Strick- 483, 488, note, 
 land, 2 V. & B. 158; Urownsword v. Ed-
 
 GIG 
 
 PLEAS. 
 
 (.11. XV. ^ 1. 
 
 In wIkU iiiso'; 
 nil iiiiswi T in 
 suii|>iirt ol' 
 a i>li';i is 
 iiocos.-^arv : 
 
 1. Whore 
 I'ljuitiible cir- 
 cunistanct's 
 allfiiod, to 
 defeat a legal 
 bar. 
 
 Where bar 
 stated sub- 
 stantively, 
 and where 
 by -way of 
 I)retence. 
 
 Where bill 
 contains 
 simple denial 
 of legal bar. 
 
 2. Where no 
 legal bar i.s 
 alleged in 
 the bill. 
 
 ])ortoil by an answer, may be very conveniently divideil into: 
 1. Those where the jihiintitt' admits the existence of a leij;al bar, 
 and alleges some equitable circumstances to avoid its cfVect, and 
 interrogates as to these circunistances; and, 2. Those where the 
 jilaintitr does not admit the existence of any legal bar, but states 
 some circumstances Avhich maybe true, and to which there maybe 
 a valid ground of plea, together with other circumstances which 
 are inconsistent with the substantial validity of a ])lea, and inter- 
 rogates as to such circumstances.^ 
 
 1. With rcs})ect to the first class of cases, the limits, to which 
 the plea and answer respectively extend are plainly marked, and 
 create no difficulty. The most simple cases of this class are those 
 in Avhich ])leas are put in to bills brouglit to impeach a decree, on 
 the ground of fraud iised in obtaining it;^ to avoid the eftect 
 of a judgiiient by a Court of ordinary jurisdiction;^ to set aside 
 *a release;* or an award ;^ or to open a stated account.® In 
 all these cases, and others which fall under a similar jjrinciple, the 
 bill admits the existence of a fact Avhich, taken alone, Avould be 
 conclusive against the plaintiff, and then proceeds to state specific 
 grounds why it should not have that effect ; and the defendant, if 
 interrogated, must answer the interrogatories as to these specific 
 grounds.'^ 
 
 If the defendant be inteiTogated as to the equitable circum- 
 stances stated as the ground for relief, it makes no difference 
 whether the bill be so framed that the bar be introduced by way 
 of substantive statement, and the equitable circumstances averred 
 for the purpose of affording ground for relief, in setting aside the 
 bar ; or whether the bar be inerely suggested as a pretence set up 
 by the defendant, and the equitable matter be introduced to avoid 
 its effect.* It sometimes, however, hap])ens, that the plaintiff 
 introduces the fact which would constitute the bar, in the form of 
 a pretence, and meets it by naked denial, without interrogating as 
 to any circumstances which might disjirove it: in such cases, it- 
 seems that the defendant should merely plead the fact, and that 
 there is no need of any other answer than the averments in the 
 plea.9 
 
 2. With resjiect to the second class of cases before referred to, 
 as those inAvhich it is necessary that a plea should be accompanied 
 by an answer, the limits to Avhich the ple.a and answer are to ex- 
 tend are not so easily defined. It may, however, be laid down, as 
 a general rule, that where no ostensible bar is, by the l>ill, admitted 
 
 1 Hare on Disc. 30. 
 
 2 Lfl. Red. 243. 
 8 Ih. 255. 
 
 4 lb. 262. 
 6 76. 260. 
 
 e ]h. 259. 
 
 7 Hare on Disc. 3.3. 
 
 8 liociic V. Morgell, 2 Sch. & Lef. 721. 
 
 9 Hare on Disc. 30.
 
 GENERAL NATURE OF PLEAS. 
 
 617 
 
 to exist, and yet the defendant -wishes to plead in bar to the bill, Ch. XY. § i. 
 he must distinguish those facts which, if true, would not invalidate ""^ y ■' 
 or disprove his plea, and plead to the relief and discovery sought 
 as to them ; and then, if interrogated as to the facts, which, if true, 
 would disprove or invalidate his plea, or to matters which are 
 specially alleged as evidence of such facts, he must answer as to 
 such facts and matters,^ 
 
 In former times, the application of these rules was a matter of Foniier prac- 
 very considerable difficulty, in consequence of the Court requiring i,\'| join^J^ea 
 of a defendant the greatest accuracy in the form of a joint i)lea and answer. 
 and answer, and treating any deviation from the strict practice as 
 a fatal objection to the validity of such a defence. In the first 
 place, the defendant had to make it distinctly appear to what part 
 of the bill he pleaded, and to Avhat part he answered. Then, if it 
 appeared to the Court that the plea covered more of the bill than 
 the defendant was entitled to cover by it, it was overruled ; or, on 
 the other hand, if the answer extended to any portion of the bill 
 properly covered by the plea, it was equally liable to be overruled.^ ' 
 
 The result of this extreme strictness was, that sometimes in cases 
 to which a defence by plea and answer was strictly applicable, the 
 bill might have been so fi-amed as to render it practically im- 
 possible for the defendant to avail himself of such a fonn of 
 pleading.^ 
 
 This strict operation of the rules of pleading has, however, been rrescnt 
 njaterially modified: for now, it is provided no plea is to be held Practice: 
 bad and overruled ui)on argument, only because such plea does 
 not cover so much of the bill as it might have extended to, or be- 
 cause the answer of the defendant extends to some part of tile 
 same matter as is covered by the j)lea.* 
 
 These provisions were intended to meet the case of some part of 
 
 1 Ilare on Disc 34; and see Hunt v. 2 Rich. Eq. 259; Bogardus v. Trinity 
 
 Pcnricc, 17 Boav. 525; 18 Jur. 4 ; Young Church, 4 Paige, 178. If an answer com- 
 
 V. Wliite, 17 Bcav. 532; 18 Jur. 277. mences as an answer to the whole bill, it 
 
 ■■^ Story V.<\. ri. § C88, and notes. If the overrules the plea or demurrer to any par- 
 defendant answers to any matters covered ticular p:irt of the bill, although such part 
 bv his plea, he overrules the plea. Bolton is not in fact answered. Leacraft r Dem- 
 r^ Garlner, 3 I'uige, 27-3; f'hase's Ca^e, 1 prey. 4 Paige, 124; Summers v. Murray, 
 l{lHnd.217; Feriiuson r. O'llarra, 1 Peters 2 Kdw. (Mi. 205. An answer which is 
 C. C. 4'.t3; Chirk v. Saf;inaw City Bmk, broader tlvin the plea, in that it denies 
 Harriop. Ch. 240; Barifjs v. Strontj. 10 allefrations not denied by the plea, over- 
 I'aij^e, 11; The Bimk f. Diisan, 2 Hhinl, rules tli<' rilea. Lewis?-. Hainl, .3 McLean, 
 254. Wheji an answer contains more than GO. So wliitti there is a |dea and no answer 
 is strictly api>lic:ible to the supp'.rt of the is rec|nire<t to support it from any charges 
 tilea, it' overrules the plea. Sfearns v. in the bill requirmp a discovery ; in such 
 Page, 1 Story, 204. If the defendant ca-e iin answer is iuipf>rtinent and over- • 
 answers as to "those matters, which by his rules the plea. Story Kq. PI. § 688. 
 pl"a he his declined to answer, he over- » Denysv. Locock, 3 M. & C. 238; 1 Jur. 
 rules the plea. Souzer v. I)e Mever, 2 605. 
 
 I'aige, 374; see Bolton r. (;ardner, 3 ■• Ord. XIV. 8, 0. A defendant c:innot, 
 
 Paige, 263; fUiase's Ca.oc, 1 Bland. 217; undtr tln'se rules, simultiinecnsly plead 
 
 8inis r. I,vle. 4 Wa»h. C. ('. 303; Piatt r. and ili-uiiir to the whole bill. Lowndes v. 
 
 Oliver, 1 McLean, 2!»5; H"bertstoti f. Hing- (Jarnett & Mo^ely Cold Mining Company, 
 
 ley, 1 M'Cord Cli. 352; Joyce v. fiunnels, 2 J. & II. 282; 8 Jur. N. S. 604.
 
 01 s 
 
 TLEAS. 
 
 Cii. XV. 5 1. 
 
 as Statute of 
 Limitations ; 
 
 purchase for 
 value; 
 
 other cases; 
 
 Statute of 
 Frauds. 
 
 tlio s.'uiie <::rouiul being accidontally covevod by cacli defoncc ; and 
 do not justity two distinct defences, by pica and answer;^ nor do 
 tlioy, in any way, interfere Avith the rule wbieh renders it neces- 
 tsary, tliat tlie i)Iea should not eover a greater portion of the bill 
 than that to Avhich (he defendant is strictly entitled to a])|)ly it.^ 
 Consequently, it is still incumbent U])()n the ])leader to distinguish 
 accurately between the parts to Avhich he intends to plead, and 
 those to AA'hich lie intends to ansAver. 
 
 AVith respect to affirmative pleas, the difficulty of ascertaining 
 the i^art of the bill to be ansAvered is not, in general, very great. 
 The most simple cases of this sort are those in Avhich the bill, 
 Avithout expressly admitting or suggesting the existence of a legal 
 or equitable bar, either by direct statement or by Avay of pretence, 
 introduces and interrogates as to flicts Avhich are inconsistent Avith 
 it, obviously for the pur])Ose of anticijiating and aA^oiding such a 
 defence, if set up. As, Avhere a plaiutifl^ for the purpose of avoid- 
 ing the effect of a plea of the Statute of Limitations, Avithout 
 intimating such purjiose, states and interrogates as to circum- 
 stances Avhich have aiisen Avithin the time of limitation, by Avhich 
 his claim has been admitted or revived: in such cases, a plea of 
 the Statute of Limitations must be accompanied by an ansAver as 
 to all such circumstances : ^ otherAvise, such circumstances will be 
 considered as admitted, and Avill haAC the effect of overruling the 
 plea. And so, where a plaintiff, in order to avoid the effect of a 
 plea of purchase for valuable consideration, Avithout notice, states 
 and interrogates as to matters, the effect of Avhich Avould be to 
 show that the defendant had notice of the plaintiff's title, the de- 
 fendant must accompany his plea by an ansAver as to such facts, 
 and such facts should be excepted from the plea.* 
 
 The same rule applies to all cases of a similar description ; and 
 no distinction appears to exist between cases in which the matter 
 in avoidance of the anticipated plea is stated in the bill by Avay of 
 pretence, and those in Avhich it occurs in the statement. . Thus, if 
 a bill be filed for the specific performance of an agreement, to 
 wliich, if not in Avriting, the Statute of Frauds would be a bar, it 
 
 1 See Jlansell v. Feeney, 2 J. & H. 313, 
 ■where, to a bill for the accounts of an al- 
 leged i)artnership, a plea of no partnership, 
 accompanied Ijy an answer, raising the 
 defences of laches and the Statute of 
 Limitations, was held bad for duplicity. 
 See al-o Lowndes v. Garnett & Mosely 
 Gold Mining Conipanv, nbi svp. 
 
 2 Salmon f. Dean," 3 M'N. & G. 344, 
 348; 14 .Jur. 235; Hewitt v. Hewitt, 11 W. 
 K. 840, V. C. K. 
 
 8 Bayley v. Adams, 6 Ves. 586, 598. 
 A plea of the Statute of Limitations is 
 bad, unless accompanied by an answer 
 supporting it, by a particular and precise 
 
 denial of all the facts and civcumsfances 
 charged in the bill, and wliich in Kquity 
 mu}' avoid the statute. Goodrich (). IVn- 
 dleton, 3 John. Oh. 384; Bloodpood v. 
 Kane, 8 Cowen, 300; Lingan v. Hender- 
 son, 1 Bland, 2^2; Moreton v. Harrison, 
 1 Bland, 393; Bolton v. Gardner, 3 I'aige, 
 273. 
 
 So the answer must deny all the charges 
 in the bill, which may avoid the bar by 
 showing a new promise. Cliapin w. Cole- 
 man, 1 1 rick. 331. 
 
 * Lord Portarlington v. Soulby, 6 Sim. 
 356.
 
 GENERAL NATURE OF PLEAS. 
 
 619 
 
 is usual, in order to avoid a demurrer, to state the agreement to be 
 in writing,^ and to found an inten-ogatory on such statement, and 
 then it is necessary that a plea of the statute should be supported 
 by an answer, denying the agreement to have been in writing.- 
 And where several collateral facts are stated and interrogated to, 
 as evidence of the agreement ha^'ing been in wiiting, those col- 
 lateral facts must also be answei'ed.^ 
 
 It is true, that, in all the above cases, the bar afforded by the 
 plea appears, to a certain extent, to have been anticipated by the 
 person who framed the bill, and who, therefore, so framed it as to 
 avoid the bar, if set i;p ; but the rule applies to all cases where 
 the interrogatories are founded on matter stated in the bill, which, 
 if true, would negative the plea, and whether such matter is stated 
 incidentally, or in anticipation of any expected defence,* 
 
 The rule that allegations which, if true, would disprove the plea, 
 must, if interrogated to, be answered, ajiplies to pleas which are 
 negative in substance, if they are affirmative in form.^ 
 
 In the case of negative pleas the rule is, that when a defendant 
 puts in a jilea which has the effect of negativing the plaintiff's 
 title, he need not accompany it by an answer, as to any of the 
 facts upon which that title depends, unless discovery is specially 
 souglit by the bill, and he is required to answer interrogatories as 
 to such facts.® If, however, this is done, the defendant is bound to 
 accompany liis plea by an answer as to such facts.'' The correct- 
 ness of this rule has been questioned ; ^ but it seems to be now 
 established. 
 
 Although a defendant, pleading a negative plea, exonerates 
 liiuiself from answering to any fact to which the jslea extends, yet 
 as the plaintiff is entitled to discovery from the defendant of all 
 matters necessary to support his case, he has, consequently, a right 
 to compel the defendant to answer specifically to all the facts 
 stated in his bill, to wliich he considers it necessary to require an 
 answer, i-n order to enable him to make out his claim by means of 
 tlie evidence Avhich may be afforded by the defendant's admission.* 
 Thus, if a bill were to be filed, alleging a partnership, and insist- 
 
 Ch. XV. § 1. 
 
 Extent of 
 the rule. 
 
 In the case of 
 a negative 
 plea, 
 
 if plea nega- 
 tives plain- 
 tiff's title, 
 answer not 
 necessary as 
 to facts on 
 which that 
 title depends ; 
 
 unless dis- 
 covery- 
 sought, and 
 defendant 
 interrogated.- 
 
 But plaintiff 
 has a right to 
 discovery of 
 all facts 
 necessary to 
 rebut nega- 
 tive plea. 
 
 1 Whitchurch v. Bevi«, 2 Bro. C. C. 
 559, 5tJfi ; see Walker i;. Locke, 5 Cush. 
 90; ante, p. 5G1, n. 2. 
 
 2 /O. bW ; see also Morison v. Tur- 
 nour, 18 Ves. 175, 182; Spurrier v. P'itz- 
 geraliJ, 6 Ves. 54«, 555. Where the de- 
 femlant in a suit for sppcific performance, 
 ph'aiis f lie Statute of Frauds, and answers, 
 adniittiiif; the contract, the answer over- 
 rule* th'! plen. K[>isc(>pal Cliiirch t". Leroy, 
 Riley ('li. 156, jK;r .Johnson Ch. ; but see 
 Ash V. I>apgv, 6 Ind. 25t». 
 
 « Evun^ i;.' Harris 2 V. & R. 301, 364. 
 * Crow r. Tyrrell, 2 Mad. 397, 409; 
 Duilie V. Sibbald, 15 Ves. Itiu; Uoche v. 
 
 Morgell, 2 Sch. & Lef. 721 ; Jones r. Davis, 
 
 16 Ves. 2C2, 2G5; Hunt v. Penrice, 17 
 Beav. 525; 18 .lur. 4; Young v. White, 
 
 17 Ih-av. 532; IS Jur. 277. 
 
 6 Ilarland v. Kinerson, 8 Bligh N. S. 62. 
 « Thring t-. Edgar, 2 S. .*t 8. 274, 281. 
 
 7 Sanders v. King, 6 Mad. 61; 2 S. & 
 S. 277; Yorke v. Fry, 6 Miid. 65. 
 
 8 See ca'-es cileil, Wigrani on I)isc. 142. 
 
 ^ For a case where it was hel<l, I hat de- 
 fendant need not, under the new prncfice, 
 answer as to certain facts, because they 
 cfiiild not b(! made u.se of as evidence, see 
 Young V. White, 17 Beav. 632; 18 Jur. 
 277.
 
 G20 
 
 PLEAS. 
 
 (u. XV. 5 1. 
 
 ailinission of 
 plaintiff's 
 title is 
 alleffed, de- 
 fcnilant, if 
 interrofcatcd, 
 must answer 
 as to such 
 admission, 
 though dis- 
 covery is not 
 sought as 
 evidence. 
 
 Answer must 
 not extend 
 to facts not 
 charged as 
 evidence to 
 rebut plea. 
 
 Plea must not 
 except from 
 the bill the 
 alli-gation 
 which it is 
 the object of 
 the plea to 
 traverse. 
 
 iiig tliat the existence of sueli p.-utiiershij) w;is made out by certain 
 documents, or by settlements of accounts and admissions, it would 
 not be sutticient to ])lead to sucli a bill a mere denial of the exist- 
 ence of the ]>artnerslii]) ; ^ the defendant must go further, and 
 answer as to all the circumstances insisted upon as evidence of the 
 partnershi]>.^ This Avas the princijile acted upon by Sir John 
 Leach Y. C. in Sanders v. Junr/,^ where his Honor laid down the 
 rule, that a jtlea which negatived the plaintift''s title, though it 
 protected a defendant generally from answer and discovery as to 
 the subject of the suit, did not protect him from answer and dis- 
 covery as to such matters as were si)ecially charged as evidence of 
 the ])laintift"'s title. He afterwards repeated the same rule, in the 
 case of Hiring v. Edgar;* and it was acted upon both by 
 Lord Brougham and Su- Lancelot Shad well V. C, in Ilardman v. 
 Ellames.^ 
 
 In cases Avhere the bill alleges that the defendant has admitted 
 the })laintifr's title, the defendant, if he puts in what is in effect a 
 plea of no title, must, if interrogated, answer as to the admission, 
 although the plaintiff does not require discovery of it " as evi- 
 dence " of his title.® 
 
 In the case of Thring v. Edgar^ the plea was overruled solely 
 upon the ground that the accomjianying answer extended to facts 
 not charged as evidence to rebut the matter of the plea ; ' but it 
 appears that it was also objectionable, in that the plea excepted 
 from the bill the only allegation which constituted the title itself, 
 and which it was the object of the plea to traverse. This objec- 
 tion was not adverted to by Sir John Leach V. C. in his judgment 
 on the case, but has since been made the subject of comment by 
 Lord Cottenham, in the case of Denys v. Locock^ where he held, 
 that a similar objection was fatal to the validity of a negative 
 plea. The equity of the bill, . in that case, depended upon an 
 alleged promise : the object of the negative plea was to deny the 
 fact that this alleged promise was ever made. Upon this Lord 
 Cottenham said : " The j^lea negatives the allegation of the jiromise. 
 What I particularly observe ujion is, that, first it takes out of the 
 bill the allegation of the promise, and then denies it. Now I ap- 
 prehend that is not correct, and that no such plea can be supported. 
 A negative plea is a mere traverse ; it differs from an ordinary 
 plea, inasmuch as the ordinary plea admits the truth of the bill, 
 but states some matter dehors, which destroys the effect of the 
 
 1 Evans v. Harris, 2 V. & B. 361, 364 ; 
 Harris v. Harris, 3 Hare, 450, 453; 8 Jur. 
 978; Maiisell v. Feenej', 2 J. & H. 313. 
 
 2 See Innes v. Evan-*, 3 Edw. Ch. 454; 
 Everett r. Watts, 3 Edw. Ch. 486. 
 
 8 6 Mad 61; 2 S. & S. 277; see also 
 Yorke v. Yry, ubi sup. 
 
 4 2 S. & S. 281. 
 
 6 5 Sim. 640, 650; 2 M. & K. 732, 744; 
 C. P. Coop. t. IJroush, 351, 360. 
 6 Harland v. Emerson, 8 BlighN. S. 62. 
 T See 2 S. & S. 281. 
 8 3 M. & C. 205, 233, 235 ; iJur. 605.
 
 GENERAL NATURE OF PLEAS. 621 
 
 allegation, and which, assuming the allegation to be true, would Ch. XV. § i. 
 
 be a defence." " A negative plea, however, is a mere traverse of '^ — y •' 
 
 that which constitutes the plaintiff's title. Xow, to traverse that 
 which is not alleged on the tace of the bill, — to take out of the bill 
 an allegation, and then by plea to negative the allegation, — is a 
 mode of proceeding which leaves the record in a state which 
 renders it impossible for the Court afterwards to deal with it." 
 " Xow, in point of fact, the bill to which the plea pleads, contains 
 no allegation of promise at all ; and the only way of trying how 
 that would operate, is to suppose issue to be taken on the plea ; 
 how would it be to be tried ? It would be an issue taken on 
 the traverse only; on the negative of that which nobody has 
 affirmed." 
 
 The rule in Tkring v. Edgar is applicable only to those facts Defendant, if 
 which are covered by the plea ; and with respect to collateral facts, '^Jj^^aSw 
 or fiicts which are stated in the bill, as occurring since the title of to collateral 
 the plaintiff is alleged to have arisen, the defendant is bound to 
 answer, if interrogated, as to them. In this respect, there is no 
 distinction between negative pleas, and pleas of any other de- 
 scription. 
 
 We now come to the consideration of the cases in which it is Paile, with 
 necessary that a plea should be accompanied by an answer, as to s^,?e'ri,'IJ°ag'J' 
 deeds, papers, and other documents in the defendant's possession, documents: 
 custody, or power.^ This question is not of so much importance 
 as it formerly was : because it is no longer necessary to file interrog- 
 atories, in order to obtain a discovery of such documents ; ^ and 
 the Court has expressed its determination to discourage, as much 
 as possible, exceptions for insufficiency in answering them.^ The 
 necessity for such an answer must, generally, depend upon the 
 nature of the individual case ; so far, however, as the subject is 
 susceptible of a reduction into rules, the following are those by 
 whicli it is regulated. 
 
 Where a bill states a case for the plaintiff, and interrogatories wiierenofact 
 are filed, asking whether the defendant has in his possession docu- I|^^*j'|[l^ ^^ 
 ments, whereby the matters stated in the bill would ai>pear, and avoid liic 
 the deil-iidaiit jtleads a jfure affirnuitive plea, not denying any part pi,?^! " 
 of the plaintiff's case, he will not be required, indeed ouglit not, 
 to answer, as to llie jjossession of the documents : because tlie 
 documents, l>eing only charged in the bill to be of inq)ortance, as 
 proving the plaintiff's c:ise, which the defendant by liis ]»lea docs 
 not controvert, tlic iirofliiclion oi'the documents would be unneccs- 
 
 1 See Sti.n' Kq. I'l. § Cfe3. 8 Ki'Iecr t'. Worswick, 5 Jur. N. S. 37, 
 
 2 Such discovery iiiuy be obtained on V. C. \V.; Harn:ird i". Himter, ] Jur. N. 
 sumtiicins at < hainlierr ; .lee 15 & IG Vic. S. lotiO, V. ('. W.; Law v. l.xii.lon Inois- 
 c. l^'i, § 18; ai.d J'ec /wiit. Chap. XLII. puiable Soctetv, Jo ll.ire. .Vp. 20; see also 
 Prixluclivn irf Ducummts. Kead v. Woodrooll'e, '<J4 lieuv. 4121.
 
 (>22 
 
 PLEAS. 
 
 (11. XV 
 
 "Where facts 
 are stated or 
 cliarged in 
 the bill, to 
 avoid the 
 plea. 
 
 Rule as to 
 documents, 
 where the bill 
 
 ■ s:iry. Tims, Miiere (li'fi'iiil.ints jilemlod tlie Statute of Limitations, 
 but did not answer an allegation in the bill, " that they had in 
 their j)ossessit)n books and doeuuients relating to the matters 
 albresai<l, or some of them," Sir Laneelot Shadwell V. C held, 
 that an objeetion to the plea, on the ground of the omission of 
 such an answer, could not be sustained ; he thought, that unless 
 the allegation in the bill had gone further, and had averred that 
 by the documents, or some of them, it would appear that a ])romise 
 had been given within six years, the mere allegation that the de- 
 fendants had in their possession papers relating to the matters 
 aforesaid, and from which, if produced, the matters aforesaid would 
 appear, was immaterial : there not being any allegation in the bill 
 of any promise having been made within six years ; and that, con- 
 sequently, it was not necessary for the defendants to negative such 
 an allegation, either.' by aveniients in their jjlea, or by answer in 
 sup])ort of it.'^ 
 
 It is evident, from the above case, that if the bill had contained 
 any allegation of a promise within six years, the Vice-Chancellor 
 would have held, that the charge as to the documents ought to 
 have been answered ; and it may be laid down as a rule, that 
 wherever the bill states any facts wdiich are inconsistent with the 
 defendant's jdea, or which would take the plaintiff's case out of the 
 operation of it, and interrogatories are filed, asking whether 
 the defendant has in his possession documents relating to the sub- 
 ject-matter of the suit, it will then be necessary to accompany the 
 plea by a discovery of the documents in the defendant's possession : 
 for, as the introduction of such matter in the bill renders it impera- 
 tive on the defendant to accompany his plea by an answer as to those 
 facts, that answer, to be complete, must extend to the documents 
 inquired after : because, as they are alleged to relate to the matters 
 before mentioned, and the facias Avhich go to negative the defend- 
 ant's plea are amongst those matters, it may happen that the doc- 
 uments in the possession of the defendant will afford important 
 eA-idence, to enable the plaintili' to avoid the effect of the plea. 
 Thus, where a bill was filed by i>ersons claiming an estate, as heirs 
 of A., ex parte materna, and the defendant pleaded that another 
 person was the heir of A., ex parte paterna, the Court overruled 
 the plea : because it did not answer as to a correspondence, by 
 which it Avas charged in the bill that the defendant had admitted 
 the plaintiff's title.'^ 
 
 Although the general rule is, that an interrogatory asking 
 whether the defendant has documents in his possession, fi-om 
 
 1 MaeGregor v. Ea.^t India Companj-, 
 2 Sim. 452, 40.5. 
 
 2 Emerson v. Harland, 3 Sim. 490, 492 ; 
 
 sec also Hardman v. F.llames, 5 Sim. 640, 
 650; 2 M. & K. 732, 741; Harris v. Harris, 
 3 Hare, 450,455; 8 Jur. 978.
 
 GENERAL NATURE OF PLEAS. 
 
 621 
 
 which the matters in the bill stated would appear, must be Cn.XY. §1. 
 
 answered, whenever there are facts stated in the bill which are in- ."^ y ^ 
 
 consistent with the plea, yet, it does not apply to those cases where misstates the 
 the bill misstates the eflect of deeds which form the substance of deeds.*^ 
 the plea, and are stated in it. Thus, where a plaintiff claimed as 
 heiress-at-law of a person who had devised real estates t() various 
 persons in tail, with ultimate remainder to his own right heirs, and 
 alleged, by her bill, that the several estates tail had been determined 
 by failure of issue, and that no valid recovery had been suffered, 
 or, if it had, that the property had been so settled that she, the 
 plaintiff, was still entitled as right heir of the original testator, and 
 that it would so api)ear if the defendant would produce the deeds 
 cre?^ting the tenant to the prcecipe, and leading or declaring the 
 uses of the recovery ; and the defendant pleaded the recovery, and 
 set forth the substance of the deeds making the tenant to the 
 prcecipe^ and leading the uses of the recovery, under which it was 
 apparent that the plaintiff had no title : the plea was held, by Sir 
 John Leach V. C. to be good, although not supported by an an- 
 swer as to the deeds, which his Honor held to be unnecessary, as the 
 plea was, in fact, -a direct denial of the avennent, that the estate 
 was so settled that the plaintiff was entitled to it.^ 
 
 Perhaps the best course which a pleader can pm-sue in cases of Course to 
 this description is, in general, to consider how far any part of the 'g^J^"p^^igg_ 
 matter alleged in the bill partakes of the nature of a special repli- 
 cation. If the matter charged amounts only to a general denial 
 of the facts pleaded, the discovery is not necessary : because, then, 
 tlie documents sought foiin part of the defendant's case only, and 
 when the cause comes to be heard on the truth of the case, as put 
 in issue by the plea, the plaintiff (his case being admitted by the 
 plea) will not require the assistance of the documents in the de- 
 fendant's possession to establish his right ; and the defendant will 
 derive no benefit from his plea, unless he can prove it to be true. 
 If, on the contrary, the charge amounts to a special replication, 
 that is, to a statement of facts, Avhich, admitting the plea to be 
 true, goes to do away with its effect, there the documents required 
 may be important to assist the plaintiff in making out bis own 
 case, namely, the facts alleged in derogation of the i)lea : in such 
 cases, therefore, there must be a discovery as to those documents, 
 if ni|nired by the plaintiff. 
 
 With respect to negative ]>leas, the rule may be stated to bi' in KuIp as to 
 conformity with the principles before atlverted to : namely, that f,j",J''"p„^g'Qf 
 if a ]»Iaintiff indicates, by liis interrogatories, that he rerjuires an nonative 
 answer as to documents alleged to be in the defendant's possession, P""^" 
 
 1 IMunkctt V. Cavendish, 1 H. & ,M. 713, 718.
 
 624 PLEAS. 
 
 (11. \v. § 1. in proof of Ills tlllo, the Jefeiulant must make the discovery ; thus, 
 -^ Y ' if ihe interrogatories ask whether the defendant has in his posses- 
 sion doeuments froni wliieh the truth of the matters stated in the 
 bill wt>uld apj)ear, he must, if he negatives the jdaintiff 's title by 
 liis plra, aeeomi>any liis plea by an answer as to those documents.^ 
 Tiie plaintiff is entitled to a discovery of them, in order to enable 
 him, in the language of Lord Brougham, "to negative the negative 
 AiiMviT in itlea." - "When, on the other hand, the interrogatories ask whether 
 '"I'^i;'!*.^""' ^'' * the documents are in the possession of the defendant, but do not 
 ask w hether from such documents the truth of the matters in the 
 bill would aj)i)ear, then it is })rcsume(l that, according to the rule 
 in Hiring v. Ethjar^ they ought not to be answered.'* 
 is no part of It may be collected from the preceding observations, that an 
 the tkieucc. a^g-yyei- in Support of a plea is no part of the defence.^ The de- 
 fence is the matter set up by the plea ; the answer is that evidence 
 which the plaintiff has a right to require and to use, to invaUdate 
 the defence made by tlie plea; and the jilaiutiff is entitled to make 
 use of it, not only upon the hearing of the cause, upon the issue 
 raised by the plea, after the plea shall have been decided to be a 
 good bar upon argument, but upon the argument* of the plea itself, 
 before any evidence can be given,® for the })urj>ose of counterprov- 
 ing the plea, by reading from it any facts or admissions which may 
 Answer must negative the matters pleaded or averred in the plea.'' The answer, 
 be full aud then, being no pai't of the defence, but only what the plaintiff has 
 a right to require to enable him to avoid .that defence, it follows, 
 that it must be full and clear, otherwise it will not support the 
 plea : for the Court will intend all matters alleged in the bill, to 
 which the plaintiff is entitled to require an answer, to be against 
 the pleader, unless they are fully and clearly denied.® Thus, if a 
 bill is filed to set aside a decree, or other instrument, on the ground 
 of fraud, and the defentlant pleads the decree or instrument sought 
 to be set aside, in bar, the defendant must answer the facts of fraud 
 all( ged, so fully as to leave no doubt on the mind of the Court 
 that, upon that answer, if not controverted by evidence on the 
 part of the plaintiff, the fact of fraud cannot be established. If the 
 answer should not be full in all material points, the Court will i)re- 
 sume that the fact of fraud may be caj)able of pi-oof in the point 
 not fully answered, and will, therefoi-e, not deem the answer sufficient 
 to sup])ort the plea, and upon that ground will overrule the plea.^ 
 Although an answer in siqijKjrt of a plea is required to be full 
 
 1 ^SlaiiHell V. Feeiiev, 2 J. & H. 313. <■' Ld. Red. 244, n. 
 
 2 Hanliiian r. Eliiimes, 2 M. & K. 744; ' Ilildy:ird v. Cressy, 3 Atk. 303; ITony 
 C. P. Coop. t. Broupli. 300. V. Ilonv, 1 S. <Sc S. 5uy, 580. 
 
 3 2 S. & S. 274, 2H. 8 Ld'.lied. 2iiS; Iliidyard v. Cressy, ubi 
 * St-e, however, Kigby t). Rigby, 15 Sim. svp. ; Gordnn v. Shaw, 14 Sim. 393. 
 
 90; 10 Jur. 126. 'J Ld. Red. 244. 
 
 6 Ld. Red. 244, n.
 
 DIFFERENT GROUNDS OF PLEAS. 
 
 625 
 
 and clear, vet, if the equitable matters charged are fully and clearly 
 denied, it may be sufficient to support the plea, although all the 
 circumstances charged in the bill may not be precisely answered.^ 
 In such cases, however, the plaintiff is not precluded, by the cir- 
 cumstance of the Court having held, upon the argument of the 
 plea, that the charges in the bill are sufficiently denied to exclude 
 intendment against the pleader, from afterwards excepting to the 
 sufficiency of the answer, in any point in which he may think it 
 defective.'^ He may also obtain leave to amend his bill, and there- 
 by obtain an answer to any matter Avhich may not have been so 
 extensively stated or interrogated to as the case would warrant, 
 or to which he may apprehend that the answei", though fixll in 
 terms, may have been, in effect, evasive.* 
 
 The cases above referred to, as those in which the jilea must be 
 accomi)anied by an answer, are those only in which some fact or 
 matter is stated or charged by the bill, which, if true, would have 
 the effect of overruhng the plea. There are cases, however, in 
 which, even though no equitable cii'cumstances are alleged in the 
 bill, to defeat the bar offered by the plea, Avhen, in fact, a pure plea 
 may be pleaded," yet the defendant may support his plea by an 
 answer, touching matters not charged in the bill.* Thus, in the 
 case of a plea of purchase for valuable consideration, a defendant 
 may deny notice in his answer, as well as in his plea : because, by 
 80 doing, he does not put any thing in issue which he would cover 
 by his plea from being put in issue.^ A defendant may also, by 
 this means, put upon the record any fact which tends to corrob- 
 orate his plea, so as to enable him afterwards to prove it. An an- 
 swer of this sort is termed an answer in aid or in siibsidiwn of the 
 plea;* and differs from wliat is usually termed an answer in sup- 
 port of a plea, in being an answer which the defendant is not 
 obliged to ])Ut in, fur the purpose of avoiding the effect of any 
 equitable ground which may be alleged in the bill, fur avoitliug the 
 bar ollered by the plea. 
 
 Ch. XV. $ 2. 
 
 After plea 
 allowed, 
 plaintiff may 
 except to 
 answer : 
 
 or amend his 
 bill. 
 
 Of answering 
 in subskUum. 
 
 Skction II. — The different Grounds of Pleas. 
 
 A j)l('a mav be citlier to the relief, or tu the discovery, or to l)0th. Plea pood to 
 
 ''ef, is gofd 
 iiscovcry. 
 
 If it is a good j)lea to the reliel^ it will be also good to the discov- \a^^\l '^^'°' 
 
 » Ib.im-, Walter r. Olanvillp, 5 Bro. 
 r. C. e(l. Tritiil. 'lOO; S. C. itom. Waiters r. 
 Ulanville, (Jill). It'-p. 1*<4. I'lie ojily way 
 of tt'Rtiiif; liu! suflicieiicy of mm answer in 
 8U[>p')rt 'it' a pica is, to connidcr every iilie- 
 g;iti<>n in the i>ill which is not sutlieienlly 
 ooiiie'l by the lUiswer, as true; ami then 
 to intpiire, whctlier tliese facts being iid- 
 mittc'l, the plea is a sullicieut bar to the 
 
 VOL, I. 
 
 claim of the plaintiflf for relief. Boganlus 
 f. Trmitv (Church, 4 I'uige, 178, Vjl. 
 
 2 \A. Ked. '2i»y. 
 
 3 L.i. Ke.l. 24o. 
 
 * III. 2'J'J: Uearneson Plcns, 37; Forbes 
 V. Skelton, H Sim. 335, 346; IJur. 117. 
 6 For. Kom. 5b. 
 Ibid. 
 
 40
 
 {i26 PLEAS. 
 
 Cu. XV. § 3. cry,^ in the same nmnnor that a dciimrror ■wliicli is valid as to the 
 
 ' > ' relief prayetl, is, as has been ah-eady luentioiicd, good to the dis- 
 
 DoiVmlrtutl covery sought by the bill." In Jurnes v. iSadgrove^^ the question 
 to uHetl'mul ^^'•^'^ raised Avhether a defendant, pleading to the relief, could never- 
 ar.swor as to tlieless give the discovery sought by the bill, Avithout overruling 
 Kven! l>i« l'l^':i ; ^nit^l ^ii' J^^l'^i LeachV. C. said : "Admitting that a de- 
 fendant may, at his pleasure, answer the Avhole bill, though he 
 pleads to the reliefj it does not follow fi'om thence that he may 
 plead to the relief and part of the discovery only, and at his pleas- 
 ure, answer the rest of the bill : such a partial answer can serve no 
 useful purpose, and the rule ai)|)lies here, that he Avho submits to 
 answer at all, must answer fully ; " unless in those cases in which, 
 as will be hereafter shown, he may protect himself from such dis- 
 covery by ])lea to the discovery. 
 Division of Plcas in Equity, to the relief prayed by the bill, have usually 
 
 pleas to relief : j^^g^^ ranged imdcr the heads of pleas: To the jurisdiction ; To the 
 person of the plaintiff or defendant ; and. In bar of the suit. This 
 arrangement is the one recognized by Lord Redesdale, and Sir 
 George Cooper:^ but the learned autlior of the "Treatise on the 
 Elements of Pleas in Equity " has added another head of plea to 
 those before enumerated ; namely, pleas to the bill. It appears to 
 be the opinion of Mr. Beames, that pleas in Equity are primarily 
 divisible into : pleas in abatement, and pleas in bar. He observes, 
 that, " in a work on pleading at Law, pleas are thus described : 
 'Pleas are of two sorts — in abatement and in bar: the former 
 question the propriety of the remedy, or legal sufficiency of the 
 process, rather than deny the cause of action ; the latter dispute 
 the very cause of action itself;' and that it is imi)0ssible to read 
 this passage without perceiving how })erfectly applicable it is to 
 pleas in Equity, and how strongly appropriate, as marking the dis- 
 tinction between pleas to the jurisdiction, to the person, and the 
 bill, and pleas in bar : the three former classes, while they question 
 the propriety of the particular remedy or of the suit, tacitly con- 
 cede the existence of a cause of suit; but the latter disjjute the 
 very cause of suit itself." ^ It is, however, to be observed, that it 
 nowhere appears that any practical consequence results, in Equity, 
 fi-om the distinction between pleas in abatement and pleas in bar.^ 
 
 1 See Story Eq. PI. § 312; Chapin v. be in terms confined to the relief. King t). 
 Coleman, 11 Pick. 337. A plea may be Heming, 9 Sim. 59. 
 bad as to the relief, hut good as to the 8 i S. & S. 4, 6. 
 discoverv. United States of America v. * Ld. Red. 219; Coop. Eq. PI. 236. 
 McKmc, 'L. K. 3 Ch. Ap. 79. Where the 5 Beames on Pleas, 58. 
 defendant wishes to avoid a full discovcrv, <5 It is stated, in Merrewether ti. Mellish, 
 on the ground that tlieie is a fact which 13 Ves. 435, 437. that Lord Thurlow said 
 defeats the plaintiff's equity, he must allege he did not know what a plea in abatement 
 such fact by plea. AVeisman v. Heron in Equity was. This observation, how- 
 Mining Co., 4 Jones Eq. (N. C.) 112. ever, must have been made by his Lord- 
 
 ■■^ Ante, p. 548; but in order that a plea ship with reference to the practical results 
 
 may be good to the discover}', it must not of such a distinction ; for the use of the
 
 DIFFERENT GROUNDS OF PLEAS. 627 
 
 In the following observations, therefore, the distinction of pleas Ch. XY. § 2. 
 into pleas in abatement and jjleas in bar will not be further noticed, **- — y — ~-^ 
 but the different gi'ounds of pleas will be offered to the considera- 
 tion of the reader according to the above-mentioned arrangement.^ 
 Before we proceed, liowever, to a more minute discussioji of pleas, 
 according to the above distribution, it will assist the reader to 
 point out in what respect pleas of each class difler fi-om those of 
 the other classes, and this will be done as briefly as possible, in the 
 words of the learned writer himself: — 
 
 I. Those pleas which are commonly temied pleas to the juris- rieas to the 
 diction, do not jiroceed the length of disj^uting the light of the jimsdictiou. 
 plaintiff in the subject of the suit, nor allege any disability on the 
 
 part of the plaintiff to prosecute the suit ; but simjily assert that 
 the Court of Chancery is not the proper Court to take cognizance 
 of those rights.^ 
 
 II. Pleas to the person do not dispute the validity of the rights pieas to the 
 ■which are made the subject of the suit, or deny that the Court has P^'^®°°- 
 jurisdiction over them ; ^ but they assert that the j:)laintiff is inca- 
 pacitated to sue, or that the defendant is not the person who ought 
 
 to be sued. 
 
 III. Those pleas in Equity, also, which Mr. Beames distinguishes pieas to the 
 as i>leas to the bill, " do not dispute the validity of the right made ^'^'' 
 
 the subject of the suit," nor contend that generally tlie Court has 
 not jurisdiction over it, nor do they allege that the plaintiff is 
 under any disability to sue, or that the defendant ought not to be 
 sued ; Init they assert that the suit, as it appears on the record, is 
 defective to answer the i)urpose of complete justice, or ought not, 
 for some otlier reason, to proceed.'' 
 
 IV. Pleas in bar may be distingxiished from all other pleas, as pieas in bar. 
 they admit the jurisdiction of the Court, and do not dispute the 
 
 ability of the plaintiff" to sue, and the liability of the defendant 
 to l»e sued, and tacitly concede tliat tliere are none of those objec- 
 tions to tlie suit Avliicli constitute the grounds of pleas to the bill; 
 l>ut yet they allege matter, which, if true, destroys the claim made 
 by tlie suit, and, by sliowing that the right made the subject of the 
 suit has no existence, or that it is vested in the defendant, they 
 put an end to all litigation resjiecting it."* 
 
 Having thus stated the leading distinctions between the dillereut 
 classes of jileas above pointed out, we shall proceed to consider 
 the particular pleas to relief under each head. 
 
 tenn"))lp.i inabiitpmpnt," (iRflistin^iuisliciI i And see Story Eq. PI. § 705. 
 
 from n plea in bur, occurs in tlie rrai-tical 2 Hfunies on I'leas, 56; Story, Eq. PI. 
 
 Ke^iHter, .'12*',, eil. Wyatt, anil many otiier § 700. 
 
 books, and bus been repcato'llv nsecl in the <* Jieames, .56; Story, E(|. IM. § 700. 
 
 panic inaiiner by LonI Tbiirlow hinisell'; * Beanies, 69, CO; Storv, Ivi. I'l. § 706.] 
 
 KOft N<;wiii.in r. Wnllis, 2 IJro. C C. 14.'); 6 Beames, 62; Story, Kq. I'l. § 700. 
 
 Gun i: I'rior, 1 Cox, 10«; 2 Dick. 667; .'jec 
 
 also lieames on Pleas, 68, notU.
 
 028 
 
 PLEAS. 
 
 (11. XV. 5 -2. 
 
 I. ri.'.astotho 
 jiiri.-idU-tion. 
 
 1. That the 
 sulyect of suit 
 is not within 
 tiie juri'^dic- 
 tion of a 
 Court of 
 Equity. 
 
 2. That the 
 ( 'ourt of 
 Chancer}' is 
 not the proper 
 tribunal; 
 
 T. Pious to the jiirisiliction, :is Ave Imve seen, do not disinito the 
 fiulits of the ])huiitilV in tl\e subject of the suit, but simply assert, 
 either: I. That they are not fit ohjeets of cognizanee in a Court 
 of Etjuity ; or, 2. Tliat the Court of Clianeery is not the proper 
 Court to take cognizance of those rights. That these are the only 
 grounds of jdea which can be put in to the jurisdiction seems to be 
 generally admitted : for it is clear, that a j)lea that the subject of 
 the suit is not cognizable in any municii^al Court of justice what- 
 ever, could not ])revail ; because such a ])lea would amount to 
 nothing more than that the subject of the suit is one upon which 
 no action or suit can be maintained, which is, in effect, a plea in 
 bar; not a plea to the jurisdiction of a jtarticular Court, but of all 
 Courts : which would be absurd, and repugnant in terms,^ 
 
 1. The generality of cases in which a Court of Equity has no 
 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, a plea of the matter necessary to show that a Court of 
 Equity has no jurisdiction, will hold.^ Thus, where a bill was 
 filed to restrain the setting up outstanding terms in bar to an 
 action of ejectment, a plea that there Avere no outstanding terms 
 w\'xs allowed;^ and so, it is presumed, if the jurisdiction were 
 attempted to be founded on the loss of an instrument, a i)lea 
 showing the existence of the insti-ument, and that it is in the 
 power of the plaintiff to obtain the production of it, would be 
 admissible.* 
 
 2. A plea that the Court of Chancery is not the proper Court 
 to have cognizance of the j^laintiff's case, arises principally where 
 the suit is for land within a county palatine;^ or where the 
 defendant claims the privileges of an university ; ® or other par- 
 ticular jurisdiction, such as that of the Benchers of the Inns of 
 Court.' Of this description, also, is a plea that the defendant 
 
 1 Nabob of Arcot v. East India Com- 
 pany, 3 Bro. C. C. 292, 301; S. C. nom. 
 Nabob of the Carnatic v. East India Com- 
 pany, 1 Yes. J. 371, 388; Story, Eq. PI. 
 § 711. In ciise of a bill brought in a Court 
 of Equity of a limited jurisdiction, as to 
 
 E ergons, or as to subject-matter, if the 
 .11 should allege all the necessary facts 
 to establi-h and >upport that jurisdiction, 
 the deleiidant may al«o negative the exist- 
 ence of tliose facts by a plea to the juris- 
 diction. Story Eq. PI. § 720. If, in the 
 Courts of the United States, there are dis- 
 tin't avermi-nts of the citizenshij) of the 
 jilaiutiff, and of that of the deleiidant, 
 upon the record, so that up'in the face of 
 the bill the jurisdiction attaches, the de- 
 fendant, if he means to cmtest tlie alleged 
 citizenship, must do it by a plea to the 
 jurisdiction; for he is not at liberty to put 
 the citizenship in issue by a general an- 
 swer; as such an answer admits the juris- 
 
 diction of the Court to inquire into the 
 general merits of the suit, and put them 
 in issue. Story Eq. PI. § 721; Livingston 
 V. Story, 11 Peters, 351, 393; Dodge v. 
 Perkins, 4 Mason, 435; see Hank ot liel- 
 lows Falls V. Kut. & I5ur. K.li. Co., 28 Vt. 
 470. 
 
 2 Ld. Red. 222. 
 
 8 Annitage v. Wadsworth, 1 Mad. 189, 
 195; Dawson v. Pilling, 16 Sim. 203, 209; 
 12 Jur. 388. 
 
 4 Ld. Hod. 222. 
 
 e Jb. 223 ; see a7ite, p. 554. 
 
 Ld. Hed. 224; see Temple v. Foster, 
 Car\', 65; Cotton v. Manering, ib. 73; 
 Drapers. Crowther, 2 Vent. 362; Stephens 
 V. Herrv, 1 Vern. 212; Pratt t'. Taylor, 1 
 Cha. Cii. 237 ; Anon., ib. 258. 
 
 7 Cunningham v. VVegg, 2 Bro. C. C. 
 241. For the plea in that case, see Beames 
 on Pleas, 324.
 
 DIFFERENT GROUNDS OF PLEAS. 629 
 
 is an officer of another Court of competent jurisdiction, and, there- Ch. xv. § 2. 
 fore not to be drawn from his duties in that Court for the purpose ' -^ ' 
 of defending a suit in another.^ 
 
 It is a rule, that the Court of Chancery being a superior Court Must show 
 of general jurisdiction, nothing shall be intended to be out of its ^J^^^^ jf^^g ^^^^ 
 jurisdiction which is not shown to be so.^ It is requisite, there- jurisdiction, 
 fore, in a plea to the jurisdiction of the Court, both to allege that 
 the Court has not jurisdiction, and to show by what means it is 
 deprived of it.^ It is likewise necessary to show what Court and what 
 has jurisdiction ; * and if the plea omits to set forth these par- ^ag'^juri's"'^ 
 ticulars, it is bad in point of form.^ diction, 
 
 It is also a rule, that a plea to the juiisdiction must show that and that it 
 the particular jurisdiction, alleged to be entitled to the exclusive ^o"j,^iete, 
 cognizance of the suit, is able to give a complete remedy.^ A remedy. 
 plea, therefore, of privilege of the University of Oxford, to a bill 
 for specific performance of an agreement, touching lands in 
 Middlesex, was overruled : because the University could not give 
 comi>lete relief It is to be observed also, that if a suit be insti- 
 tuted against different persons, some of whom are privilegetl, 
 and some not,* or if one or more of the defendants are not amena- 
 ble to the particidar jurisdiction,^ a plea will not hold;^° and so, 
 if there is a particular jurisdiction, and yet the parties to litigate 
 any question are both resident within the jurisdiction of the Court 
 of Chancery : as upon a bill concerning a mortgage of the Isle of 
 Sark, both mortgagee and mortgagor residing in England: the 
 Court of Chancery will hold jurisdiction of the cause: for a Court 
 of Equity a</it in iMrsonam, and may give effect to its decree by • 
 constraining the person or property of the defendant till he per- 
 form it." 
 
 It is said, that one plea only will be admitted to the jurisdic- Only one 
 tion, and that, therefore, if the defendant plead such a plea as is j',|i!i!,(!||,,*i'(,^, 
 not sufficient in its nature, or i)lead the matter insufficiently, he admitted. 
 will be put to answer.^^ 
 
 1 See TiibRon r. Wliitacrp, 2 Vem. 8.3. 7 Draper v. Crowther, 2 Vent. 302; 
 
 2 I.d. Ue«l. 224; Karl of I)(rl)y v. Duke Stephens v. IJenv, 1 Vern. 212. 
 
 of Alhol, 1 Ve«. S. 204; 2 Vcs. S. 357. 8 White v. I.owgher, Cary, .').5; 22 Vin. 
 
 3 L(l. K.'d. 224; Naboh of Arcot r. East Ah. 9; lansiiaw v. i^'ansliaw, 1 Vern 246. 
 India Company, 3 IJio. C. C. 2'.»2, 301; S. » (irif,'(,''.« case, Mutton, .Oij; 4 Inst. 213; 
 C. nipm. .Naljoij of the Carnatic v. East Hilton v. Lawsoii, Carv, 48. 
 
 India Conipimv, 1 Vcs. .1. 871, 388. 1" r>d. Red. 22r); Hc'ndrick r. Wood, 9 
 
 < l,fl. \U-i\.'h\: Stroller. I, ittlc.l Vern. W. R. 588, V. (J. W.; Central Ce-r^^nan 
 
 h'J\ Karlof Dcrliv c. Dukeof Allu.l. 1 Vcf. Ila'lroail Coinpanv r. Mitclull, I'i W l\. 
 
 S. 20.'i; 1 Dick". 129; and see Moor v. 428. V. (3. W.; 2'll. & .M. 452; 11 .lur. 
 
 Somerset, NcN. 61. N. S. 2.58. 
 
 6 l.rl. It.'d. 224; Foster v. Vassal!. 3 " Ld. Red. 225; Toller v. Carteret, 2 
 
 Atk. 587; Naholj of .\rcot v. Kast India Vern. 494; see aNo Kiirl of Derby t'. Duke 
 
 Conipanv, j//yi (o//>. of Athol, vbi sup.; Lord Craustown v. 
 
 « I.d. l{cd. 224; N'ewdigate v. .Tohn''on,2 Johnston, 3 Ves. 170, 18-2; and ""'e Norris 
 
 f'hn. (a 170; Wilkins tj. Shalcroft. 22 r. ('h;iml>res 29 Ueiv. 240; 7 Jur. N. S. 
 
 Vin. Ah. 10; Green v. UutLerforth, 1 Ves. 69; ih. <;89, I.. C; 3 De G , V. & J. 583. 
 
 8. 4G;j, 471. " Wyatfs I'. R. 325.
 
 ()30 PLEAS. 
 
 Oil. XV. §-2. AW' h:i\o belbre sot'ii, tliat :u\ objcrlion on tlio ground of jnris- 
 
 " r ' irution must be taken litlicr by deniurror or plea, before answer : 
 
 Objeciion to Otherwise, tlie Court will entertain the suit, although the defend- 
 
 jurbdiotu.n .^ ^^ ^ . object to It at the hearing, unless it is in a case in which 
 
 must bo taken .' j ;r<' ,.-,.., 
 
 litlur by no eircuinstancc whatever can give the Court jurisiuction/ 
 
 l!k"i."""^ '''^ II. I'leas to tlie person, like pleas to the jurisdiction, do not 
 II. rioas to necessarily dispute the validity of tlie rights which are made the 
 the person: subject of the suit, but object to the plaintiff's ability to sue, or 
 the defendant's liability to be sued, respecting theni.'^ They are 
 generally divided into such as regard the pei-son of the plaintiff, 
 and such as regard the person of the defendant. 
 1. Of the 1. Of the former kind are pleas of: Alienage;* Outlawry; 
 
 plaintiti. Attainder; Infancy; Coverture ; Idiotcy or lunacy ; Bankruptcy;* 
 
 to which may be added. Fleas that the plaintiff does not sustain 
 the character he assumes.'' All the above grounds of objection to 
 the person of the plaintiff, except the last, have been before dis- 
 cussed.** With respect to the last, it is to be observed, that the 
 plea may either deny the existence of the person in whose behalf 
 the bill has been exhibited, or of the character in which the plain- 
 tiff affects to sue ; or it may show that, for some reason not dis- 
 closed in the bill, the title under which the plaintiff claims never 
 vested in him.'' Thus, a plea may show, that the alleged plaintiff, 
 or one of several plaintiffs, is a fictitious person ; ^ or was dead at 
 the time of commencing the suit.'^ So, if a plaintiff files a bill 
 stating himself to sue as administrator or executor, a plea that he 
 is not administrator or executor will be good." Where a plaintiff 
 entitled himself as administrator, and the defendant pleaded that 
 the supposed intestate was living, the plea was allowed." A i)lea 
 that the i)laintiff is not heir to the person under whom he claims 
 as heir, has also, as we have seen, been considered a good plea.^^ 
 
 1 Ante, p. 555. 8 Coop. Eq. PI. 249; Com. Dig. Abate- 
 
 2 Beames on Pleas, 99; Storj' Eq. PI. ment. E. 16; Bac. Ab. Abatement, F. ; 1 
 § 722. • Wils. 302; Gilb. C. P. 248; Chitty on PI. 
 
 2 A plea of " alien enemy " is sufficient- 464. 
 ly answered by a treat}' of peace made ^ Coop. Eq. PI. 249 ; Bac. Ab. Abate- 
 after it was filed; and there is no need for ment, L. ; Com. Dig. Abatement, E. 17; 
 the plaintiff to reply that fact; tlie Courtis 1 Chitty on PI. 464. 
 
 bound to notice it ex officio. Johnson v. i" Winn ». Fletciier, IVern. 473: Simons 
 
 Harrison, Litt. Sel. Cas. 226. v. Milman, 2 Sim. 241. Such a plea, liow- 
 
 4 The objection that the plaintiff is bank- ever, is untenable, if the plaintiff take out 
 rupt, and his assipiee not a party, should letters of administration before the hearing; 
 be taken in limine by way of plea, and Horner ?>. Horner, 23 L. J. Ch. 10, V. 0. 
 cannot be insisted on to avoid exceptions K. ; see also nnle, p. 318. 
 
 taken by the plaintiff to theanswer. Kit- ^ Ord v Huddleston, 2 Dick. 510, 512; 
 
 tred[;e v. (Jlnremont Bank, 3 Story, 591. cited 1 Cox, 198. 
 
 5 Stnn.' Kq. I'l. § 722 et sea. 1- A7ile, pp. 604, 609; see Bonrkc j>. Kelly, 
 " Ante,Vhap. ll\., SnifshyPersonsunder lIIo|^nn, 172; Gleason v Cook, 1 Hogan, 
 
 Disahilily. For fonns of pleas of alien 297; Story F^q. i'l. § 727. Formerly, it 
 
 enemy, see Beames on Pleas, 329; 2 Van was doubted whether it was not necessary, 
 
 Hey. 94; and of outlawrj-, and bankruptcy, in such ca^es, to state in the plea who was 
 
 and of plaintiff not sustaining his assumed the heir-at-law ; but now it seems that 
 
 character, ih. 90, 104, 106. such a statement is uimecessary. Jones v. 
 
 1 Story Eq. Pi. § 727. Davis, 16 Yes. 262, 264, 265.
 
 DITTERENT GROUNDS OF PLEAS. 631 
 
 In like manner, a plea that the i^laintiff is not a partner, has been Ch. XV. § 2. 
 
 allowed to a bill filed by a person claiming in that character.^ *— — 1 ■' 
 
 Upon the same principle, if, fi-om any circumstance not stated in 
 the bill, it can be shown that nothing ever vested in the plaintiif, 
 or that the title which the plaintiif had has been transferred to 
 another, the defendant may show the circumstance by way of 
 plea. 
 
 2. Pleas to the person of the defendant are more limited than 2. Of the 
 those to the person of the plaiutifi": for it is a rule at Law, that defendant: 
 persons who are disabled to sue, cannot plead their own disabili- cannot plead 
 ties, when they are themselves sued.^ This rule is equally appU- disability- 
 cable to proceedings in Courts of Equity, in all cases where the 
 suit seeks to compel the performance of a duty by the defendant. 
 
 It will not, however, apply to cases where the proceeding is in Secus, where 
 rem, and the disability is of such a nature that, besides the per- P™-,7,!j,'"f 
 sonal disqualification which it imposes, the interest in the defend- 
 ant's property which is the subject of the suit has become vested 
 in another.* Upon this principle, it is presumed that persons out- as outla^Tv 
 lawcd or attainted of treason or felony may state their outlawry '^ ^^^ *"'' 
 or attainder to the Court by way of plea, for the purpose of show- 
 ing that whatever interest they had in the property is vested in the 
 Crown ; * in the same manner that bankrupts may, if sued respect- or bank- 
 ing property which has become vested in their assignees, plead '""P'-y' 
 their bankruptcy, whether it happened before or after the bill Avas 
 filed, in abatement of the suit.^ In fact, such a plea amounts to 
 no mofe than a plea of want of interest in the subject-matter of 
 the bill. 
 
 The rule, that a person who is under disability cannot plead his Coverture. 
 own disqualification, will not extend to cases where the disquali- 
 fication is only partial ; thus, it seems that a woman, sued as a 
 feme sole, may ])]ead that she is covert.^ 
 
 A defendant may also plead that he is not the person he is Thatdcfcnd- 
 alleged to be, or does not sustain the character he is stated to ^"stain his"^ 
 bear : such as heir, executoi-, or administrator.'' He may likewise aikficd 
 show, that he is not sole heir, executor, or administrator, and that ^r'^^'^^o^Jf,]^ 
 others are joined with hini in those capacities;^ such a ]»lea, how- heir, exccu- 
 evcr, ])artakes more of tlie nature of a jdea for want of i)arties than „"[iiis[rn't<ir; 
 
 or that CD- 
 
 1 Ante, pp. f,0.-.. 620. nenmes on Pleas, 130; Storj- Eq. I'l. dell'ndant is 
 
 2 Henmcs on Pleas, 122; Story Eq. PI. § 732. dklhilitv 
 §§722.727. 7 //„■,/.; Ld. Tied. 234; Cooke r. Git- 'l'»'^'^'"'y' 
 
 8 Turner v. Robinson, 1 S. & S. 3. tin^s 21 Ueav. 4!t7; atid see .lone.s v. Wil- 
 
 * Ante, p. 156. liaiiis, lO.Iiir. N. S. IOCS; 13 \V. \l. 1, V. 
 
 'i Turner v. Mohwnon, nbi sup. f see also (;. .S. ; llii)<lc v. Skelton, 2 II. & i\I. OKO; 
 
 Turner n. Xlrholl^, 10 Sim. 565; 13 .lur. Tempest v. Lord Camoys, 1 W. N. 10; 14 
 
 203; Lane r. Smith, 14 Hcav. 49; 15 Jur. W. H. 327, M. II.; Story K.j. I'l. § 732. 
 
 736; ante, p. LIH. A similar rule applied. For forms of such plea, set- 2 Van Iley. U5. 
 
 in the cas*- of insolvent debtors; see btory " J5cames on l'lea.s, 130. 
 
 Eq. PI. § 732.
 
 i;;32 
 
 PLEAS. 
 
 (11. XV. 5 J. 
 
 Not proper, 
 where de- 
 roiidant may 
 disduim. 
 
 HI. Pleas to 
 the biU: 
 
 1. Plea of 
 another suit 
 de]iending, 
 for <amc 
 matter: 
 
 Whole effect 
 of second suit 
 must be 
 attainable 
 in first. 
 
 oC a ]>loa to tlio porsoii. He may also plead the disability of a co- 
 dotendant.' 
 
 If a deleiidaiit has not that interest in the subject of a suit 
 wliuli ran make him liable to the demands of the plaintiff, and 
 the bill, alk'ninii; that he has or claims an interest, avoids a de- 
 murrer, he may i)lead the matter necessary to show tluit he has no 
 interest,'- Thus, where a witness to a will was made a defendant 
 to a bill, brought by an heir-at-law to discover the circumstances 
 attending the execution, and the bill contained a charge of pre- 
 tence of interest by the defendant: though a demurrer for Avant of 
 interest was overruled, because it admitted the truth of the charge 
 to the contrary in the bill, yet the Court expressed an opinion 
 that the defence might liave been made by plea.^ 
 
 It is to be observed, that a plea of want of interest in the de- 
 fendant is proper only where the case is such that he cannot satisfy 
 the suit by general disclaimer.* 
 
 III. It has been already stated,^ that the object of pleas to 
 the bill is to show that, although the plaintiff may be entitled to 
 the relief he asks against the defendant, he is not entitled to have' 
 it in that suit ; or that the bill, as framed, is insufficient to answer 
 the object.® 
 
 1. Where a bill seeks relief, a defendant may plead that 
 there is another suit already depending, in this or in another 
 Court of Equity, for the same matter.'^ This plea corresponds 
 Avith the exceptio litis pendentis of the civilians, and is analo- 
 gous to the plea, at Common Law, that there is another action 
 depending.^ 
 
 But, although it is necessary that the first suit should be for the 
 same matter as the second, the second suit need not be for the 
 whole matter embraced by the first ; ^ it is, however, requisite 
 
 1 Sergrove r. Mayhew, 2 M'N. & G. 97, 
 99; UJiir. 158. 
 
 2 Ld. Ked. 235. 
 
 8 Piummer v. Mav, 1 Ves. S. 426; see 
 also Cartwright r. Hatelv, 3 Hro. C. C. 238 ; 
 1 Ves. J. 292; Story Eq. I'l. § 734. 
 
 * Ld. Ked. 235; see iJ<«/, Chap. XVI., 
 Uisclfiimers. 
 
 6 Ante. p. 627. 
 
 6 See Storv Eq. PI. § 735. 
 
 7 Ld. Red". 246; Coop. Eq. PI. 272; 
 Beames on I'lea'^, 134; Ord. XIV. 6, 7; see 
 also Lons v. Storie, 9 Hare, 542; 16 Jur. 
 349; Way v. P.ragaw, 1 C. E. Green (N. 
 .L), 213;"see John.'ion v. Bower, 4 Hen. & 
 M. 487; Curdr. Lewis. 1 Dana, 352; Cum- 
 mins V- Uennet, 8 Pai;^e, 79; Siory Eq. PI. 
 § 737 ; Matthews r. Koberts, 1 Green Ch. 
 338; Cleveland, &c.. H.K. Co. v. City of 
 Erie. 27 Perm. St. 380; Siinjison n Brew- 
 ster, 9 Paige. 245 ; P.rice v. Mallett. 2 Hay w. 
 24 1. The defendant may content himself 
 
 with stating the pendency and object of 
 tiie former snit, and averring that the pres- 
 ent suit was brouglit for the .same matters; 
 Beames on Pleiis, 830; Eq. Drafts. 658; 
 post, Vol. HI. ; or he may omit the averment 
 thnt the suits are for the same suhject- 
 matter, provided he states facts suflicient 
 to show that they are PO. Plapg*. Biinnel, 
 
 2 Stockt. (N. .J.) 82; Davison v. John- 
 son, 1 C. E. Green (N. J.), 114. A plea 
 of anotlier suit pendins should be taken 
 before the henriiig, and it can only be a 
 good objection, when the first suit is be- 
 tween all the same parties, and a full decree 
 can be therein luid. liartell v. Van Biiren, 
 
 3 Edw. Ch. 20; >-ec post, p. 635. For form 
 of such pleas, see 2 Van Hey. 117 ; Beames 
 on Pleas, 3-30. 
 
 8 Beanies on Pleas, 134; Coop. Eq. PI. 
 272; Story Kq. PI. § 736. 
 
 9 .Moor"i». Welsh Copper Company, 1 Eq. 
 Ca. Ab. 39, pi. 14. The plaintifl in'a bill in
 
 DIFFERENT GROUNDS OF PLEAS. 633 
 
 that the whole eftect of the second siiit should be attainable in the Ch. XY. § 2. 
 
 first ; ^ and if it appears upon the face of the plea that this is ''■" — y ' 
 
 not the case, the Court ^ill at once overrule it.^ It sometimes, 
 
 however, happens, that the second bill embraces the whole subject 
 
 in dispute more completely than the first: in such ^ cases, the 
 
 practice app'ears to be to dismiss the first bill with costs, and to 
 
 direct the defendants in the second cause to answer, upon being 
 
 paid the costs of a plea allowed, which puts the case upon the 
 
 second bill in the same situation that it would have been in if the 
 
 first bill had been dismissed before the fihng of the second.^ 
 
 A plea of another suit depending will be good, whether the Not good, 
 
 other suit be in this or any other Court of Equity in England.* another^ 
 
 It will not howevei-, be a good plea, if it is depending in a Court country; 
 
 in another country ; ^ therefore, such a plea will not prevail Avhere 
 
 the suit already pending is in Ireland,^ or in the colonies.'' 
 
 "Where the original suit has been commenced in a Court of in- or defendant 
 
 ferior jurisdiction, the plea will not be good if the defendant has jurisdittiou 
 
 avoided the eflect of the suit, by fjoing out of the iurisdiction of o'"uiferior 
 
 ^ „ '•'»=' ■^ Court. 
 
 that Court.8 
 
 A suit depending must, to afford a good ground for a plea in Must be a suit 
 
 Equity, be a suit in a Court of Equity;^ and therefore, where an iniquity; 
 
 infant legatee sued an executor in the Ecclesiastical Court, and 
 
 afterwards in Chancery, it was held that the suit depending in the 
 
 Ecclesiastical Court could not be pleaded to the suit in Chancery : 
 
 because there was not the same security for an infant's advantage not in an 
 
 in the Ecclesiastical Court, as in Chancery." Courtr'^''*^ 
 
 Equity to redeem, set out the mortgage, an 8 Crofts v. Wortley, 1 Cha. Ca. 241 ; Ld. 
 
 entry by the defendant sifter part of the Red. 248. 
 
 sura secured had become due, and a ten- * Ord. XIV. 6, 7; Ld. Red. 246; Beh- 
 
 der, and prayed to be restored to his title rens v. Sieveking, 2 M. & C. 602. Where 
 
 and pos.iession. and penditig tiie suit, lie two Courts have concurrent jurisdiction, 
 
 brought another similar bdl, but statiiiKan the fact tliat an apj)eal lies from one to the 
 
 additi'inal tender made after the whole other, will not authorize a proceeding in 
 
 sum had hecoine due. To this bill the the appellate Court, jiendingan action fur 
 
 defendant pleaded the pendency of a for- the same cause in the Court below. Cleve- 
 
 mer suit for the same matter, and the plea lnnd,&e., K.R. Co. v. City of Erie, 27 I'enn. 
 
 ■was Rii'-tained with costs for the defendant, St. .3S0. 
 
 on the croiind that the two bills were sub- '' The mere pendency of a suit in a 
 
 stHntially founded on the s:ime matter. foreign Court, or in a (.'ourt of the United 
 
 Saunders v. I'rost.JJ I'iek. 276, 276. VV ilde States, cannot be pleaded in abatement or 
 
 J. in this case said, " It is a sullicient ob- in bar to a suit for the .«anie cause in a 
 
 jection to the [iresent bill, that it is founded State Court. Mit(-heil f. Hunce, 2 Paige, 
 
 on matters set forth in the former hill, to 606; Salmon v. Wooton, 9 Dana, 42.3; but 
 
 which the defendant would b(! again bound see Hart v. (iranger. 1 Conn. 1.04; see Low 
 
 to answer, if the plaintilf were p(!rtnitted v. Mussey, 41 Vt. .'J'J3: IJrown v. Lexing- 
 
 to proceed." It was also held in tlii-< ca'^e, ton & Danville H.R. Co., 1 McCarter (N. 
 
 that the new right ae(|uired l>y the plain- J.), 191. 
 
 tiff while the lirst suit was [lending, was •J Lord Dillon r. Alvares, 4 Ves. 307, .359. 
 
 proper matter tor a supjjemental bill, but ^ Foster w. Vassall, .3 Atk. 587, 6H9; see 
 
 not for nn original bill. /6m/. ; sec Mann i'. also Bayley v. Edwards, 3 Swanst. 703, 
 
 Richardson, 21 I'ick. 259. 710. 
 
 J Law r. Kigby, 4 Uro. C. C. 00, 63; » Ld. Red. 240. 
 
 Piektonl r. Iliint«"r. .O Sim. 122, 12;t; Way » See Wny v. Bragaw, 1 C. K. Greon 
 
 V. ItniKaw, 1 C. I',. <;rern (N. .L), 213, 218. (N. .1 ), 213. 
 
 * rickfurd r. lluuter, x»bi tup. w lluwell p. Wuldron, 2 Cha. Ca 86.
 
 634 
 
 PLEAS. 
 
 (H. XV. 5 2. 
 
 ^Vlu■n 
 (iot'oiulant is 
 siioil boili at 
 I,.iw aiul in 
 Kiiuitv, lie 
 may, \iy 
 ordor of 
 course, re- 
 (luirc plaintiff 
 to elect. 
 
 Objection of 
 another suit 
 depending, 
 not {generally 
 taken by 
 niotiou ; 
 
 except in bills 
 on behalf of 
 infants. 
 
 It apponvs to liavo been lield iunuerly, thiit if after a suit com- 
 menccil at Common Law, a bill sliould be exhibited in this Court, 
 to be relieved for tlic same matter, tlie dependency of the action 
 at Law mii^ht be admitted as a good plea, and the defendant 
 ■would not be put to a motion for an election or dismission.^ 
 The practice in this respect, has, hoAvever, undergone a material 
 alteration ; and now, if a plaintiff sues a defendant at the same 
 time and for the same cause at Common Law and in Equity, the 
 defendant may, after full answer put in, or, in case no answer is 
 re(iuired, after the expiration of the time for the service of inter- 
 rogatories, obtain, as of course, on motion or i)etition,^ an order 
 that the plaintiff may take his election in which Court he will 
 proceed ; and he cannot ])lead the pendency of the suit at Common 
 Law, in bar of the suit in Equity.' 
 
 It is stated in an anonymous case in Moseley,* that the ob- 
 jection that another suit is depending for the same matter, may, 
 in the Court of Chancery, be taken by motion, instead of plea ; 
 but in Murray v. Shadxoell^ Loi*d Eldon said, that, according 
 to the practice, the regular way of obtaining this reference is by 
 plea. There are cases, however, in which the Court will interfere 
 to restrain a second suit brought against the defendant, for the 
 same matter, upon motion, without requiring him to plead the 
 pendency of the fonner suit ; as in the case of two or more suits, 
 instituted on behalf of an infant for the same matter : in such 
 case, the Court will, as we have seen, upon representation of the 
 fact, immediately direct an inquiry which suit is most for the 
 infant's benefit, without requiring the defendant to plead the pen- 
 dency of another suit.® It is to be observed, however, that in 
 the case of suits instituted on behalf of infants, the reference is 
 not to inquire into the fact of two or more suits having been 
 instituted, but which of them is most for the benefit of the 
 infant. 
 
 1 Beames's Orders, 177; Ld. Red. 249. 
 
 2 See poit. Chap. XIX. § 4, F.lecllon. 
 For forms of motion paper and petition, 
 see Vol. IFI. 
 
 3 See post, Chap. XIX. § 4, Election ; 
 Ld. Ked. 249; Ord. XLII. 5, 6, 7; see 
 Storv Kq. PI. §§ 741,742; Livingston v. 
 Kane, 3 John. Ch. 224; Sanger v. Wood, 3 
 John. Ch. 416 ; Rogers v. Vosburg, 4 John. 
 Ch. 84; Gibbs v. Parkinson, 4 Hen. & M. 
 415. Where a suit is pending for the same 
 cause in a Court of Law, all that the defend- 
 ant can ask, is an order putting tiie plain- 
 tiff to his election, whether he will proceed 
 at Law or in Krpiity. But the plaintiff will 
 not be put to his election, unless the suit 
 at Law is for the same cause, and the reme- 
 dy affonied co-extensive and equally bene- 
 ficial with the remedy in Equity. Way v. 
 
 Bragaw, 1 C. E. Green (N. J.), 213; see 
 Conover v. Conover, Saxton (N. J.), 409; 
 Rogers v. Vosburg, 4 John. Ch. 84; 1 Hoflf. 
 Ch. Pr. 342; Story Eq. PI. § 742. Where 
 the remedies at Law and in Equitj' are in- 
 consistent, any decisive act of the party, 
 with the knowledge of his rights and of 
 the facts, determines his election. Sanger 
 V. Wood, 3 John. Ch. 416, 421. So if he 
 neglects to make his election in proper 
 time. Conover v. Conover, I Saxton (N". 
 J.), 403, 409; Rogers v. Vosburg, 4 John. 
 Ch 84. He need not make his election 
 until after the defendunt has answered. 
 Conover v. Conover, 1 Saxton (N. J.), 409. 
 
 4 P. 208. 
 
 5 17 Ves. 853. 
 
 6 Ante, p. 09.
 
 DIFFERENT GROUNDS OF FLEAS. 
 
 635 
 
 In the case, also, of creditors suing an executor or adminis- 
 trator, after a decree for an account at the suit of other creditors, 
 the Coiu't will, upon motion by the defendant, stay the proceed- 
 ings in the second cause, M-ithout requiring him to plead the 
 pendency of the first suit ; ^ but both courses are open to him, 
 and, in some cases, that of a plea may be more advantageous.^ 
 
 It is not necessary to the sufficiency of a plea of this nature, 
 that the former suit should be precisely between the same parties 
 as the latter,^ for, if a man institutes a suit, and afterwards sells 
 part of the j^roperty to another, who files an original bill touching 
 the part so purchased by him, a plea of the former suit depending 
 touching the whole j^roj^erty will hold, although filed by a different 
 plaintiff.* So, wliere one part-owner of a ship filed a bill 
 against the ship's husband for an account, and afterwards the same 
 part-owner and the rest of the owners filed another bill for the 
 same jourpose, the pendency of the first suit was held a good plea 
 to the last ; ^ for, although the first bill was insufficient for want 
 of parties, yet, by the second bill, the defendant was doubly vexed 
 for the same cause. And where a decree has been made, upon a 
 bill brought by a creditor on behalf of himself and all other 
 creditors, and another creditor comes in, to take the benefit of the 
 decree and prove his debt, and then files a bill on behalf of himself 
 and all otlier creditors, the defendant may plead the pendency of 
 the fonner suit : for a person coming in under a decree, is quasi a 
 party,® The proper way for a creditor to proceed, if the plaintiff 
 in such original suit is dilatory, is by application to the Court for 
 liberty to conduct the cause himself^ 
 
 It was said by Sir John Leach V. C. in Houklltch v. The Mar- 
 quis of Donnegal^^ that the pendency of another suit for the 
 same object, in a court of concun-ent jurisdiction, could not be 
 pleaded in bar, before a decree in such other suit ; this observation, 
 however, can only be applicable to creditors' suits, where, as in 
 the case last put, the plaintiff in the second suit will not have 
 become quasi a party to the first till after the decree. In other 
 cases, all that seems to be necessary to a i)lea of this nature is, 
 that there should be a suit actually pending: for which purpose, 
 there need not have been more than either an a2)pearance, or pro- 
 cess requiring appearance.* Tliat one or other of such steps, at 
 least, should have been taken, is, however, absolutely necessary.^" 
 
 1 Poit, Chap. XIX., § 1, Dismissing 
 Bills nrifl Sifii/iiiff I'niceedinr/s. 
 
 2 I'irkfonrr. Hunter, 6 Sim. 122; see 
 Micrn r. ZniiCHvillc iV .Maysvillo Turnpike 
 Co., 11 Oliii), 273. 
 
 8 See Hartell v. Van Burcn, 3 Edw. 
 Ch. 20. 
 ♦ Ld. Red. 218; Moor v. Welsh Copper 
 
 Oil. XY. § 2. 
 
 Company, 1 T':q. Ca. Ab. 30, pi. 14; Story 
 En. I'l. ^ 740. . 1 . / 
 
 Dunmd ?;. Hutchinson, Ld. Ked. 248. 
 
 6 Neve i>. Weston, 3 Atk. 667. 
 
 T Ld. Red. 249. 
 
 8 1 S. i*k S. 4f»l, 402. 
 
 « L.l. Ited. 24fi; Anon., 1 Vern. 318. 
 
 1" Moor J". Welsh Copper Conii>any, 1 
 Eq. Ca. Ab. 39, pi. 14. 
 
 Former suit 
 need not be 
 between the 
 same parties. 
 
 StafTC at 
 wliicii ]>Ipa of 
 fonner suit 
 must be 
 pleaded.
 
 636 
 
 PLEAS. 
 
 Cm. XV. § -2. 
 
 CnniiiH 1hi 
 pleadi'd to a 
 cross-bill. 
 
 Averments 
 necessary. 
 
 It is to 1)0 ol)S(n'vo(l, tli;it a cross-1)ill, although between the 
 same })arties as an original suit, cannot be met by a ])lea of this 
 nature;^ thus, it has been held that, after a bill brought in the 
 ExeluHiuor to foreclose a mortgage, the defeuclant may bring a 
 bill in the Court of Chancery to redeem, and the pend(vjicy of the 
 former suit is not })leadable.'" And it seems that such a plea Avill 
 not lie, in any case where the second bill was not brought on the 
 same right as the first: so that a decree, dismissing the original 
 suit, would not be a bar to a new ])roceeding; thus, where a ])laiu- 
 titt' mistook his right, and being the execiitor of an administrator, 
 concei\XHl himself to be the personal representative of a deceased 
 person, and filed a bill in that capacity, but afterwards, finding 
 that he did not pro])erly sustain the character he had assumed, 
 obtained letters of administration de bonis non, and filed a new 
 bill, a plea of the former suit depending was overruled by Lord 
 Hardwicke;^ and we have seen, that a suit by a husband and 
 wife, against the trustees of the wife's separate property, cannot 
 be pleaded in bar to a subsequent suit by lier and her next friend 
 against the trustees and her husband, although the relief prayed 
 in both suits is the same : because the first suit is considered as 
 the suit of the husband alone, and a decree of dismission in it 
 would be no bar to the wife.* 
 
 From Avhat has been before said, it is obvious that it is neces- 
 sai-y to the validity of a plea of a former suit depending, that it 
 should contain a distinct averment that the second suit is for the 
 same matter as the first ; and, therefore, a plea which did not 
 expressly aver this, though it stated matter tending to show it, 
 was considered as bad in point of form, and was overruled upon 
 argument.^ The plea must also aver, that there have been pro- 
 ceedings in the suit : as appearance, or process requiring appear- 
 ance at the least.® It seems hkewise regular to aver, that the 
 suit is still depending : "^ though it has been held that a positive 
 averment of that fact is not necessary.* It is, however, necessary 
 that the time when the suit was instituted should be distinctly 
 
 i See Storv Eq. PI. § 400. 
 2 Lord Newbury i'. Wren, 1 Vem. 220. 
 8 HuiTf^ins V. York HuiMinEs Company, 
 2 Atk. 44; Story Eq. PI. § 739. 
 
 4 Ante, p. 108; Keeve v. Dalby, 2 S. & 
 S. 4C4; see also Stooke v. Vincent, 1 Coll. 
 527, .';29 ; 9 .Jur. 99. 
 
 5 Ld. Red. 246 ; Devie v. Lord Brown- 
 low, 2 Dick Gil. Hut in McEwen v. 
 Broadhead, 3 Stockt. (X. .1.) 131, 132, the 
 Chancellor, in giving? judgment, said: 
 '' Put, if the fMct.s stated in the plea plain- 
 ly show that the second suit is for the 
 panic suhjfct-matter as tiie first, I can see 
 no reason why it should be hcdd necessary 
 that there should be an express averment 
 
 to that effect. It would be accurate and 
 correct pleading to m.ike the averment, 
 but accuracy may demand what is not 
 required as absolutely necessary. The 
 Courts !ire not as much inclined to regard 
 mere technicality in pleading as theywere 
 three ([uarters ot a century ago." And he 
 held that a plea of another suit pending 
 might be good, though it did not contain 
 that averment. 
 8 Ld. Red. 247. 
 
 7 /IjuL 
 
 8 Urlin V. Hudson, 1 Vem. 332; see 
 the forms of such a {)lea, 2 Van Hey. 117; 
 Beames on Pleas, 330.
 
 DIFFERENT GROUNDS OF PLEAS. 
 
 637 
 
 averred ; and where a i-)lea merely stated that m or about such a 
 year the phiintiif filed his bill, praying the like account, and the 
 same relief with the present, Lord Hardwicke held the plea to be 
 defective in form.^ » 
 
 A plea of a former suit depending, being clearly a good plea, if 
 true, the plaintiff, if he dispute the truth thereof, should not set 
 it down for argument, but the plaintiff should, on motion or peti- 
 tion of course,^ obtain an order for an inquiry as to the truth 
 thereof.* If such order, and a certificate in pursuance thereof, are 
 not obtained within one month after the filing of the plea, the de- 
 fendant may obtain, as of course, an order to dismiss the bill with 
 costs.* If, instead of taking this course, the plaintiff set down 
 the plea for argument, it is considered that he admits the fact that 
 a former suit for the same matter is depending, and the plea must, 
 therefore, be allowed, unless it is defective in form.^ If, however, 
 the plaintiff considers the plea defective in form, he may set it 
 down for argument.® In the case of Jones v. Segiieira^'' the 
 plaintiff, instead of obtaining an inquiry as to the truth of a plea 
 of this kind, filed a replication ; whereupon the defendant, after 
 the expiration of a month from the filing of the plea, moved upon 
 notice, that the bill might be dismissed with costs, and an order 
 to that effect was made by Lord Lyndhurst, on appeal : who, 
 moreover, was of opinion, that the application ought to have been 
 made by a motion of course.^ Where, however, a plaintiff, after a 
 plea of another suit depending to part of the bill, and an answer 
 to the rest, without moving for the usual reference, replied gener- 
 ally to the answer, without noticing the plea, and witnesses were 
 examined on both sides, and the cause heard and decided in favor 
 of the plaintiff, the defendant, who petitioned for a rehearing, was 
 lield to have waived his ]>lea, and was not allowed to avail him- 
 self of the objection arising from the plaintiff's irregularity.^ 
 
 If the result of an inquiry into the truth of the plea is, that 
 
 Ch. XV. § 2. 
 
 Must not be 
 set down for 
 argument ; 
 but plaintitf 
 should obtain 
 order of 
 course, for 
 inquiry' as to 
 truth of plea; 
 othenvise, 
 defendant 
 may obtain 
 dismissal of 
 bill, as of 
 course. 
 
 But if plea 
 defective in 
 form, plaintiff 
 may set it 
 down for 
 argument. 
 
 Dismissal of 
 bill, after plea 
 replied to. 
 
 1 Foster t) Vassall, 3 Atk. 087; Story 
 Ef|. I'l. § 737. A plea of ])roccedings in 
 another Court, must aUo sliow that the 
 object is the same, and ihat the Court has 
 comi)Otent jurisdiction, and that the result 
 of the pr<)cei'(ling» therein would be con- 
 clusive, so as to Ijiiid everv other Court. 
 Uehrens v. Sieveking, 2 M. & C. 002, 
 603. 
 
 2 For forms of motion paper and peti- 
 tion, see Vol. 111.; and see Leigh r. Tur- 
 ner, 14 VV. K. .3»il, M. K. 
 
 8 " The correct practice is a reference 
 to a Master." McKwen v. Broadheiid, 3 
 Stockt. (N. .1.) v.yi. 
 
 * Ord. XIV. fl, 7. If tho defendant 
 takes the olyecti'in by imswcr, instead of 
 plea, it seems that he will not be allowed 
 bi4 costs, although the inriuiry be an- 
 
 swered in his favor. Long v. Storie, 9 
 Hare, 542; 10 .lur. 3J'J. 
 
 c !,d. Red. 247. 
 
 c Tarletoii v. Barnes, 2 Keen, 632, 6.30; 
 see McICwen v. Broadliead, 3 Slockt. 
 (N. J.) 132. 
 
 7 1 I'hil. 82; 6 Jur. 183. 
 
 8 See St<iry Kq. I'l. §§ 743, 744. Where 
 upon such ])lcM, the (leleiidant obtiiins the 
 Master's report in lavor of tlic truth of 
 the ])li;n, he caimot have an order to dis- 
 miss the plaintiff's bill on motion. But 
 he must bring the case on to be heurJ 
 upon the ]ilen and the Master's report, to 
 en:il)le the Court to decide uj)i)ii the va- 
 lidity of the [)lc!i. llarl v. I'lnllips, 9 
 I'aige, 293. 
 
 >» Lucas V. Holder, 1 Kq. Ca. Ab. 41, 
 pi. 3.
 
 638 
 
 PLEAS. 
 
 Plea not \mt 
 in upon oath. 
 
 2. Plea, that 
 the tiill is 
 insutHeient to 
 answer the 
 purpose of 
 complete 
 justice, 
 
 Cit. XV. § '2. hoth suits are for tlie same matter, the jilca will then be allowed ; 
 but if otherwise, the ])lea will be overruled. Where, liowever, it 
 appeared that the second suit embraced more objects than the 
 first, a special order was, as wc have seen, made, dismissing the 
 first bill with costs, and directing the defendant to answer the sec- 
 ond, upon being paid liis costs, as upon ])lea alloAved.^ 
 
 As the pendency of a former suit, unless admitted by the plain- 
 tit!', is made the immediate subject of inquiry, a plea of this kind is 
 not put in upon oath.'^ 
 
 2. A plea which olfers any matter tending to show that the 
 bill, as framed, is insufficient to answer the purposes of complete 
 justice, must, it is evident, be ranked amongst pleas to the bill ; 
 for it does not, in general, dispute the right of the plaintiff, as 
 stated in the record, but merely oflers a reason why the suit should 
 not proceed as fi-amed. The only reported cases of pleas of this 
 description are, where the objection arises fi'om want of sufficient 
 parties to the bill. There can be no doubt, however, that if it can 
 be shown to the Court that with the parties already before it, the 
 suit has been so framed as to be insufficient to answer the purpose 
 of complete justice, a plea suggesting the facts necessary to make 
 such a case Avould prevail. 
 
 The question of necessary parties to a suit has been before so 
 fidly discussed, that it is unnecessary to enter any further into it 
 in this place.^ It is merely requisite to remind the reader, that 
 when the defect is not apparent uj^on the face of the bill, it may 
 be jjointed out to the Court by plea : the peculiarities arising from 
 which course of proceeding liave been before made the subject of 
 inquiry.'* 
 
 lY. Wliatever shows that there is no right which can be made 
 the subject of suit, or whatever is a complete and j^erpetual bar to 
 the right sued for, may constitute the subject of a plea in bar ; or, 
 as it is expressed in a work on Pleadings at LaAV, " Whatever de- 
 stroys the plaintiff's suit, and disables liim for ever from recovering, 
 may be pleaded in bar." ^ 
 
 Kinds of. Pleas in bar are usually ranked under the heads of: 1. Pleas 
 
 of Acts of Parliament ; 2. Pleas of Matters of Record, or as of 
 
 by reason 
 of want of 
 parties. 
 
 rv. Pleas in 
 bar: 
 
 1 Crofts V. Wortley, 1 Ch. Ca. 241 ; ante, 
 pp. 632 G.34; and see Leigh v. Turner, 14 
 W.K. 361, M. K. 
 
 2 Urlin V. Hudson, 1 Vern. 332; Ld. 
 Red. 247. It is not very distinctly stated in 
 the books whether the rule that a plea of 
 this nature need not be upon oath, will 
 apply where the suit already pending is 
 in another Court. The reason for its 
 adoption, in cases where the suit is in the 
 Court itself, is suiiiciently evident when 
 we considfr that the pendency of it must 
 be epparent from ita own proceedings, of 
 
 ■which the Court always takes notice, with- 
 out i'urtlier evidence; but with respect to 
 proceedings in another Court (unless they 
 are in the state of perfect records, which 
 can hardly be the cnse when the suit is 
 still pending), the fact of the pendency of 
 the suit must be established by evidence 
 upon oath in the usual manner. Seej)ost, 
 § 3, Form of J'lcis. 
 
 3 Antt, Chap. V., Parties to a Suit. 
 
 4 Ante, p. 290. 
 
 6 Beames on Pleas, 160, citing Law on 
 PI. 40.
 
 DIFFERENT GROUNDS OF PLEAS. 639 
 
 Record, in the .Court itself, or some other Court ; and 3. Pleas of Cii. XV. § 2. 
 Matters inj^ids.^ ' > ' 
 
 1. Any statute, public or private, which may be a bar to the 1. pieas of 
 demands of the plaintiff, may be pleaded, with the avepnents nee- lament ^'^'^" 
 essary to bring the case of the defendant Avithin the statute, and to 
 avoid any equity which may be set up against the bar created by 
 the statute.- 
 
 Amoncfst other statutes which may be thus set up in bar of the Statute of 
 plaintiff's demands, may be mentioned the various statutes which ^"" " ^^^^' 
 have, from time to time, been passed for the limitation of the time 
 within which actions or suits at Law may be commenced. Pleas 
 of this description are called Pleas of the Statute of Limitations ; 
 and the statute which, until recent enactments, afforded the most 
 ordinary grounds for pleas of this sort, was the 21 Jac. I. c. 16.^ 
 By that Act, § 1, it is enacted that all wi-its of formedon must be in what cases 
 sued out, and all entries into lands by persons having a right of jg ^^^^. '^l' 
 entry must be made, witliin twenty years next after the title to pleadu(i: 
 the person suing out the writ or making the entry accrued ; and, 
 by § 3, that all actions upon the case (otherwise than for slander), 
 or for account (other than such accounts as concern the trade of 
 merchandise, between merchants and merchants, their factors or 
 servants), and all actions for trespass, debt, detinue, rejDlevin, &c., 
 and the action of trespass quare dausum fregit^ must be com- 
 menced within six years next after the cause of such action or suit, 
 and not after. This statute, although its provisions apply only to 
 actions or suits at Law, has, nevertheless, been considered as avail- 
 able as a bar to suits in Equity for analogous purposes, in cases 
 where they were not commenced within the period limited by the 
 Act ; * therefore, where a plaintiff's right to lands had accrued 
 thirty years before tlie filing of the bill, the Court allowed a plea 
 of the Statute of Limitations to jn-evail : the plaintiff having been 
 so circumstanced that, although he could not bring an ejectment, 
 he might liave brouglit a bill in Equity. And so it has been held, May be 
 that tlie statute may be pleaded to a bill to redeem a mortgage, if ^(^^^ *° 
 
 the m<jiigagee had been in ])osseHsion twenty years.'' Tlie statute redecMn; 
 
 or tn ]ireveiit 
 
 1 Beamea on Plea.s, 160; Coop. Eq. PI. is, that the^ will take notice of the Statute setting up of 
 
 251 ; Story Eq. I'l. § 749. The arrange- of Liinitiitioii«, and np])!}' it in the same term; 
 
 nient ndnjited by J^ord Kodesdale is some- manner as Courts of Law. Couoverv. Con- 
 
 what ditlureiit ; see Ld. Red. 230. For over, 1 Saxton (N. J.), 403; see o«/e, 500, 
 
 form of H plea in bar, see Vol. III. 500 and notes; Story \'a\. I'l. § 751, t'< Sf/ ; 
 
 '^ Ld. Red. 274. .SisWy/c, defei.daiit may Miller v. Melntirc, I'eters, 01 ; Stack- 
 have the benelit of a statute extinfjuisliinj^ a house I'. IJariiston, 10 Sumner's V'es. 453, 
 right, without pleading it. l)e Beauvoirv. note (c), and cases cited; Townsliend V. 
 Owen, 5 ICxcli. 100, Cam. Scac. Townsheml, 1 Bro. C C. (Perkins's ed.) 
 
 3 Sec aUo '.) Ceo. IV. c. 14, posl, p. C45. 556, note ('/), and American cases cited; 
 For forms of pleas under this statute, see 2 ^\'iltkins w. Ilarwood, 2 (iill iV .1 307; Car- 
 Van Hey. 11.!, 114. roll r. Waring, 3 ih. 4Jl; Harris v. Mids, 
 
 * Sec"L<l. Wed. 273, n. (2); Coop. Kq. I'l. 2s 111. 44. 
 251; 15eames ou I'lens, 101; Story Ivp I'l. 6 Ld. Red. 271, 272; Coop. Kq. I'l. 254; 
 
 § 751. The rule in Courts of lujuily now Deauies on Pleas, 102; Story Eq. PI. 757.
 
 640 
 
 PLEAS. 
 
 Cu. XV. § 
 
 or tor ilis- 
 covcry ; 
 
 or for pay- 
 ment of 
 debts; 
 
 or for 
 account. 
 
 in;iy nlso bo iiloailcd to a bill to j)rovont tlie sc'ttlnc; up of an out- 
 staiuliiig tcnn, and for discovery ; ^ and to a bill for discovery 
 only : '■^ tliouu;li it was formerly considered that the latter could not 
 be done." 
 
 The statute may also be pleaded to a bill which seeks the jiay- 
 ment of a debt, provided such debt be due upon simple contract. 
 It appears, formerly, to have been considered, that although the 
 statute is a bar to the claim of a debt, it would not oj)erate as a 
 bar to the discovery when the debt was due : for, if that had been 
 set forth, it would have appeared to the Court Avhether the time 
 linuted by the statute had elapsed ; but later decisions have been 
 to the contrary, and a defendant pleading the statute, must not an- 
 swer to that part of the bill which calls upon him to set out when 
 the debt became due.* If, however, the bill alleges that if the de- 
 fendant would discover books and papers in his possession, the 
 plaintiff would thereby be enabled to show that the debt became 
 due, or was acknowledged since the period limited by the statute, 
 the defendant must answer that part of the bill.'' 
 
 The statute 21 Jac. I. c. 16, may also be j^leaded to all bills for 
 account, except whei-e the account relates to the trade of merchan- 
 dise between merchants : which species of account is, as we have 
 seen, expressly excepted out of the statute.^ Thus, where one had 
 
 Now, however, the statutes properly appli- 
 cable to lands, rents, redemption of mort- 
 gages. &c., are the 3 & 4 Wni. IV. c 27; 7 
 Will. IV. & 1 Vic. c. 28; and see /)os<, p. 598; 
 Hardy v. Reeves, 4 Sumner's Ves. 466, 
 note (6), and cases cited; Story Eq. PI. 
 §757; Aeherley r. Roe, 5 Sumner's Ves. 
 673, Perkins's note («), and cases cited; 
 Trash v. White, 3 Bro. C C. (Perkins's ed.) 
 291, notes. If the mortgagee gets into 
 possession, and continues in possession 
 twenty years without an}' acknowledg- 
 ment of the mortgage title, the mortgiigor 
 is barred of his redemption. Gates v. Ja- 
 cob, 1 B. Mon. 308; Hatfield v. Mont- 
 gomery, 2 Porter, 58; Phillips v. Sinclair, 
 20 Ma"ine, 269 ; Demarest v. VVynkoop, 3 
 John. (Jh. 129. So when the statutory 
 period necessary to bar a recovery at Law 
 has passed, a foreclosure in lypiity will be 
 barred. Harris v. Mills, 28 HI. 44." But an 
 acknowledgment of tlie mortgage title 
 within twenty years bi'.fore filing the bill 
 for redempti'.n or lor foreclosure, maintains 
 the equity of re'lemption, or the right to 
 foreclosure. Ilodle v. Healey, 6 Aladd. 181 ; 
 liayner i'. Castlee, ib. 274 ; Cheever v. Per- 
 ley, 11 Allen, 584. As where the mort- 
 gagee has treated it as a mortgage by 
 keeping accounts, and in other ways. See 
 Glee V Manhattan (Jo., 1 Paige, 48 ; Fen- 
 wick V. llacey, 1 Dana, 279; Hughes v. 
 Edwards, 9 Wneat. 489 ; iJexter v. Arnold, 
 3 .Sumner, 152 ; Kdsell v. Buchanan, 3 Bro. 
 C C. (Perkins's ed.) 254, 256. The time 
 
 is to be computed from the last period at 
 which the parties treated the transaction 
 as a mortgage. Shepperd v. Murdock, 3 
 Murph. 218. 
 
 1 Jeremy v. Best, 1 Sim. 373, 375. 
 
 2 Beames on Pleas, 275 ; Gait v. Osbal- 
 deston, 1 Kuss. 158; Mendizabel v. Mach- 
 ado, 1 Sim. 68, 77 ; Macgregor v. Kast 
 India Company, 2 Sim. 452, 455 ; Scott v. 
 Broadwood, 2 Coll. 447, 456; 10 Jur. 214; 
 Wigram on Disc. 35 ; see also Ld. Red. 269, 
 and post, Chap. XXXIV. § 2, JJills of Dis- 
 covery. 
 
 8 Hindman v. Taylor, 2 Bro. C. C. 7, 10; 
 Scott V. Broadwood, 2 Col. 447; Hamilton 
 V. Wood, 3 Edw. Ch. 106; see the remarks 
 upon the case of Hindman v. Taylor, cited 
 in support of the text, in Wigram on Dis- 
 cov. (1st Am. ed.) PI. 66 et stq., p. 33 et 
 seq., where the learned author expresses his 
 dissent from the judgment of Lord Thuriow 
 in that case, and cites the authorities which 
 refer to ami notice it. See Mendizabel v. 
 Machado, 1 Sim. 68; Macgregor v. East 
 India Companj', 2 Sim. 452; Cork v. VVil- 
 lock, 5 Mad. 331; Story Eq. PI. § 821 
 and notes, in which the author remarks 
 that the reasoning of Mr. Wigram, dissent- 
 ing from Lord Thurlow, is very able. 
 
 4 Ld. Red. 269. 
 
 6 Ante, p. 61-8. 
 
 " Tiie accounts must be "such as con- 
 cern the trade of merciiandise," " between 
 merchant and merchant, their factors and 
 servants." See W. W. Story Contracts,
 
 DIFFERENT GROUNDS OF PLEAS. 
 
 641 
 
 To what 
 
 transactions 
 
 applicable. 
 
 received the profits of an infant's estate, and, after six years had Ch. XV. § 2 
 elapsed fi*om his coming of age, the infant brought a bill for an 
 account, tlie Court held that the Statute of Limitations was a bar 
 to such suit, as it would be to an action at Common Law for the 
 same pui-pose.^ It is to be observed, that, notwithstanding the ex- 
 ception as to merchants' accounts in the thh'd section, it has been 
 held that the Statute of Limitations will operate as a bar, where 
 the accounts have ceased six years before the filing of the bill.'^ 
 
 In Jones v. Pengrce^ it was doubted whether transactions be- 
 tween principal and agent came within the exception in favor of 
 merchants' accounts. It has been decided, that transactions with 
 a foreign Prince and his government, do not concern the trade of 
 merchandise within this statute ; * and also, that a letter of at- 
 torney from a merchant to authorize the getting in of debts, will 
 not constititte the person thereby deputed a merchant, within the 
 meaning of the exception.^ It may be mentioned, that the ex- 
 ception has been considered as api)lying only to merchants trading 
 beyond sea, and not to inland mercliants.® The clause relating to 
 m erchants' accoimts, also, is only a])])licable to cases Avhere there 
 are mutual accounts and reciprocal demands between two persons : 
 it is inapplicable to accounts between a tradesman and his custom- 
 er; and it has been determined that, in such accounts, and in all 
 
 Merchants' 
 accounts. 
 
 702; Blair r. Drew, 6 N. H. 235; Codman 
 V. Kodgers, 10 I'ick. 118; Spring y. Gray, 
 6 Mason, 528; S. C. 6 Peters, 151; Coster 
 f. .Murray, 5 John. Ch. 522, 5S3, 592, 599; 
 Chitty's Cotit. (loth Anicr. ed.) 009, 910, 
 and notes. Unliquidated accounts between 
 merchants in the capacity ot principal and 
 factor have Oeeri held to be within tlie ex- 
 ception. Stiles I'. Donaldson, 2 Dall. 2tj4; 
 S. C. 2 Y'ates, 105. The exception of n)er- 
 chiint«' account* does not apply to stated 
 accounts. Toland v. Spragiie, 12 I'et. 300. 
 1 Lockey t". Lockey, Prec. in Ch. 518. 
 hong ac(iuiescence and lapse of time are, 
 by anal<g3', or in obedienci; to tlie Statute 
 of Limitations, a bar to a hill I'or an account. 
 Acherley v. Koe, 5 Sunnier's V'es. 505, 
 Perkins's note (//I, and cases there cited; 
 Haker V. Biddle, 1 Hald. 394,418; Graham 
 V. lorrance, 1 Ired. \'a\. 210 ; Parks v. 
 Kucker, 5 Leigh, 149; Uayiier v. I'ca'sall, 
 3 Jijliu. Ch. 57>5; Burton r. ])ickiiison, 3 
 Yerger, 112; Drummoiid v. l)uke of St. 
 Albans, 5 Smnii'T's V'es. 43'j, note (3); 
 Andrew i' Wrigley, 4 liro. C. C ( I'erkins's 
 ed.J 125, 138, and notes; 1 Story \'a\ .lur. 
 § 529; Spring i'. (irjy. 5 M:i.soii, 627. 528; 
 ^herwo^ld i;. Sutton, 5 .Mason, 143; Lewis 
 t'. Marsliall, 1 .McLc;in, 17; Iviynionily. 
 Simoii.son, 4 Bhichf. 83; (ieorge i". .lobu- 
 8on, 45 N. H. 450; Atwiter t'. I'owler, 1 
 Kdw. Ch. 417 ; see also K^indoipli n. l{:in- 
 d..lph, 1 Hen. & .M. l>-0, Uoiife^.r r. Wey- 
 nian, 1 .M'(joid,('li. 101; Cave u. Saunders, 
 2 A K Marsh. 04; Love t'. White, 4 Hay w. 
 vol,. 1. 
 
 211; King.=land f. Roberts, 2 Paige, 193; 
 Mooers v. White, 6 Joliii. Ch. 360; Ives v 
 Sumner, 1 Uev. Eq. 338; Bertien v. Varian, 
 1 Edw. 343; Faruum v. Brooks, 9 Pick. 
 213. Between partners. Cowart v. I'errine, 
 3 C. E. Green (N. J.), 454; George y. 
 .Johnson, 45 N. II 456. 
 
 •■^ Weitord v. Liddel. 2 'V'es. S. 400 ; 
 Crawford u. Liddel, cited 6 Ves. 582; Jol- 
 lilfe V. I'jtt, 2 Vern. 694; BridE;es «. Mitch- 
 ell, Glib. 224 ; Bunb. 217 '; Barber v. 
 Barber, 18 Yes. 286; Coster i'. Murray, 
 5 John. Ch. 522, 531; Spring r. (hay, 528; 
 S. C. G Peters, 151; Union Kank v. Knapfi, 
 3 Tick. Sti; Jones f. Pengree, Sumner's 
 Ves 080, note (c). 
 
 But in Bass v. Bass, 6 I'ick. 362, it was 
 hehl that the Statute of Limitations could 
 not be pleaded to an account " concerning 
 the tr^ide in merchandise between mercliant 
 and mer<'hant," althougli none of the items 
 caine within six years. See also S. C. 8 
 Pick. 187 ; MaiKleville v. Wilson, 6 Cranch, 
 15; Davis v. Smith, 4 (ireeiil. 339; M;Lel- 
 lan V. (Jrofton, 6 (ircenl. SOS; ChitI}' Cont. 
 (loth Am. ed.) 909, 910, and cases cited; 
 Hancock I'. Hancock, 18 Tick. 30. 
 
 3 Ves. 580, 58'2. 
 
 < Sturt V. Mellish, 2 Atk. 012. 
 
 6 lb. 613. 
 
 8 SherniMn r. Withers. 1 Ch. Ca. 152; 
 and see Beaines on I'lens, 103, n. 3, and the 
 cases there cited; but see Farrindon v. Leo, 
 1 Mod. 209, 2 Mod. 311. 
 
 41
 
 642 
 
 TLEAS. 
 
 Cannot be 
 pleaded to 
 trusts. 
 
 Devise for 
 debts will not 
 revive debts 
 barred. 
 
 Wbether 
 riglit to 
 barred debts 
 may be 
 revived by 
 advertise- 
 ments. 
 
 otlioi-s -whoro llio ilonis are all on one side, the circumstance of the 
 last item liajiin'iiiiiii- lo bo within six years, does not draw after it 
 those which arc of a longer standing.^ In sucli cases, the proper 
 course is, to plead the statute as to all the items which are within 
 the statute, and ansAver as to the rest. 
 
 The Statute of Limitations, 21 Jac. I. c. 16, cannot be jdeaded 
 in bar to a trust ;'^ and upon tliis ground it was held, that a de- 
 mand upon the separate estate of a manied woman was not barred : 
 because rdl the separate estate of a feme covert is a trust.* Upon 
 the same princi])le, it is held, that where a debtor creates, by his 
 will, a trust or charge for the payment of his debts out of real 
 estate, such a trust will prevent the statute from operating upon 
 a debt not barred at the time of the creation of the trust,* The 
 rule does not apj)ly to a trust for the pajTnent of debts out of per- 
 sonal estate ; ^ and it seems that a devise for the payment of debts 
 will not have the eifect of reviving debts barred by the statute 
 upon the death of the devisor.*' 
 
 It may also be noticed that, in Andrev!S v. Brown^ it was held, 
 that although, if a man has a debt due to him, and has made no 
 demand of it for six years, he is barred by the Statute of Limita- 
 tions, yet, if the debtor, after the six years, publish an advertise- 
 ment in the Gazette, or any other newspaper, that if all persons, 
 who have any debts OAving to them from hira, will a23i)ly to such a 
 place they will be paid, the operation of the statute Avill be de- 
 feated ; and in Jones v. Bcott^ the question was discussed, whether 
 such a notice, by a 2)ersonal representative, would have the same 
 effect. In that case, however, the Court did not come to any ex- 
 press decision upon the point : thoitgh Lord Brougham appears to 
 have intimated an oi^inion that it would.^ It is to be observed 
 that, in Jones v. 8cott^ the advertisement requested, all persons, 
 having claims on the estate, to send in their statements prior to 
 their being laid before a particular person, by whom the persons 
 claiming were to submit them to be examined ; and that (accord- 
 ing to the reporter's marginal note) the Court appeared to think 
 that such an advertisement would not take a debt, previously 
 barred, out of the operation of the statute. It may here be men- 
 
 255; see also Frenke v. Cranefeldt, 3 M. & 
 C. 499; 2 Jur. 1080. 
 
 5 Jones V. Scott, uhi sap. ; Lyon v. Col- 
 ville, 1 Coll. 449; Evans v. Tweedy, 1 
 Beav. 55, 58. 
 
 6 Burke V. Jones, 2 V. & B. 275, ,291; 
 see also Executors of Fergus v. Gore, 1 
 Sell. & Lef 107; Stackliouse v. Bariiston, 
 10 Ves. 453, 409; Kx parte Koffey, 19 Ves. 
 468, 470; Stanton v. Knight, 1 Sim. 482. 
 
 7 Prec. in Cha. 385. 
 
 8 1 H. & M. 255; Rev. 4 CI. & Fin. 382, 
 nom. Scott v. Jones. 
 
 9 1 K. & M. 270 ; but see 3 M. & C. 502. 
 
 1 Coop. Eq. PI. 253; Bull. N. P. 149; 
 Coster ». Murray, 6 John. Ch. 522; Buntin 
 V Lagow, 1 Blackf 375; Kimbalh'. Brown, 
 7 Wend. 322; Ingram v. Sherard, 17 
 Serg. & K. 347 ; Gold v. Whitcomb, 14 
 Pick. 188. 
 
 ■■i Hollis' case, 2 Ventr. 345; Sheldon v. 
 Weldman, 1 Cha. Ca. 26; Freeni. 156. 
 
 8 Norton v. Turvill, 2 P. Wms. 144. 
 
 * Burke v. Jones, 2 V. & B. 275 ; Hughes 
 V. Wynne, T. & It. 307, 309 ; Hargreaves 
 V. Michell, 6 Mad. 32t); Kendell v. Carpen- 
 ter, 2 Y. & J. 484; Scott v. Jonei-, 4 CI. & 
 Fin. 382 ; S. C. Jones v. Scott, 1 K & M.
 
 DIFFERENT GROUNDS OF PLEAS. 
 
 643 
 
 Efl'ect on 
 barred debt 
 of proof by 
 debtor of 
 creditor's 
 ■n-iU. 
 
 In case of 
 bankruptcj'. 
 
 In case of 
 insolvency. 
 
 tioned, that where a debt had become barred by the statute after Cn. XV. § 2. 
 the death of the creditor, it was held to be revived by the debtor 
 proving the creditor's will.^ 
 
 The principle of the rule, that the creation of a trust for the 
 benefit of creditors, will prevent the application of the Statixte of 
 Limitations, extends to proceedings in bankruptcy ; and, therefore, 
 it was determined that, after a commission had issued, the Statute 
 of Limitations did not prevail against thQ creditor of a bankrupt.^ 
 It was also held, that where a man had taken advantage of the Act 
 for the relief of insolvent debtors, the statute did not apply ; and 
 that, where a person who had taken the benefit of the act twice had 
 died, leaving assets more than sufiicient to pay all the debts con- 
 tracted after his second insolvency, the debts scheduled under his 
 first insolvency were not barred by the statute." 
 
 A decree for the payment of debts, under a creditor's bill for the 
 administration of assets, is also considered as a trust for the benefit 
 of creditors, and will, in like maimer, prevent the statute from 
 barring the demand' of any creditor coming in under the decree ; ■* 
 the creditor's demand, however, must not have been barred at the 
 time when the suit was instituted : for, if the creditor's demand 
 would have been barred by the statute before the commencement 
 of the bill, the statute may be set up.^ It is to be remarked upon 
 this point, that it has been held that it was the decree only which 
 created the trust ; and that the mere circumstance of the bill hav- 
 ing been filed, although it might have been pending six years, 
 would not take the case out of the statute ; ^ but according to the 
 later decisions, it seems that the filing of the bill will 0})erate by 
 itself to save the bar of the statute, though the plaintiflf, by delay 
 in prosecuting the suit, may disentitle himself to relief And the 
 dismissal of the bill will not prevent the defendant, in a new suit, 
 from taking the benefit of the statute.* 
 
 It may be noticed in tliis place, that, in Ex iKwtc Dewdney^ it 
 was laid down by Lord Eldon, that, in the administration of assets 
 under a creditor's bill, executors are not bound to plead the Statute 
 of Limitations.^** If the statute lias not been taken advantage of 
 
 Effect of a 
 decree, in 
 preventing 
 the operation 
 of the statute. 
 
 Filing of bill 
 may prevent 
 its operation. 
 
 Executors, in 
 a creditors' 
 suit, not 
 bound to 
 plead tlie 
 statute. 
 
 1 Ingle r. Kichard.s (No. 2), 28 Beav. 36C ; 
 6 Jur. N. S. 1178. 
 
 2 /■:x/>'irte l:ns«, 2 (,\vn & J. 46. 
 
 8 Uarton v. I attersali; 1 K. & M. 237. 
 
 * Sterndale r. Ilunkinson, 1 Sim 303, 
 398; Forsfrr r. M'Kiiizie, 17 Jieiiv. 414. 
 
 * Sliewcn »;. VanderliorHt, I K. &: M. 
 347,302; Updike v. Dovle, 7 K. I. 440, 
 460-402. 
 
 Luke v. Hayes, 1 Atk.281; Anon., 2 
 Atk. 1. 
 
 ' Cr.ppin V. Gray, 1 Y. & C. C. C. 20.'., 
 207; O.lur. 312; I'urcell r. IJlennerlinssett, 
 3 Jo. & I.at. 24, 45 ; Forster v. T]ioin|;soii, 
 
 4 Dr. & War. 303, 318; Ilele v. Lord Bex- 
 ley, 20 Beay. 127. 
 
 8 Stenidale v. Ilankinson, rM sup. 
 
 9 lo Ves. 4'j8; Alston v. Trjllope, L. R. 
 2 E«|. 20.-., j\L H. 
 
 •" Lord (,'astleton v. Lord Fansliaw, 1 Eq. 
 C'a. Ab. 3or), pi. 13; Tree, in Ch. yj. In 
 Scott V. Hancock, 13 Mass. 104, it is said 
 to be settled tliiit an administrator is not 
 bound to plead the general .•statute of limi- 
 tations in bar to (in action on a d<'bl of his 
 intestate. S>e ul>o Smith's Kstatc, J A'ih- 
 mcad, 352; but see the remarks of Baylov 
 .1. in McCullock i'. iMwes, Dowl. & Kyi. 
 40, on this point.
 
 (544 PLEAS. 
 
 Cii. \V. § J. liv tlio ('xtH'utors, nii.l a dccrcH' for an accoiuit (if debts has been 
 ])!•(. 11. >unrc'(K the statute may be set up in the course of til e pro- 
 eeediuus under tlie (U>eree, as well by a ereditor or legatee, as by 
 a jH'vsonal reiuvsentative/ against all the creditors, except the 
 jdaintitf.- 
 
 The rule, that trusts are not within the tStatute of Limitations, 
 ai>}iru's only betwi'en trustees and cestui que trusts:^ not between 
 trustees or cestui que tr^ists and third persons; and, therefore, it 
 has been held, that where an executor, or administrator, or trustee 
 for an infant, neglects to sue within the time, the Statute of Limi- 
 tations will bind the infont, and prevent his suing the debtor,^ 
 although it Avould not prevent the infant from suing his trustee for 
 a breach of trust ; and so it has been determined, that the Statute 
 of Limitations will bar a bill for an account of rent of land held 
 of trustees.^ The rule also will not hold, where the claim is made 
 against a trustee by implication ; more especially where such im- 
 pUcation is raised upon a doubtful point.^ The rule, in fact, can 
 only be taken to api)ly to those cases where the possession of the 
 trustee cannot be considered as adverse to that of the cestui que 
 trust : if the possession of the trustee is adverse, the statute may 
 be pleaded ; thus, it was held, that in the case of parceners and 
 joint-tenants, they are accountable to each other, without regard 
 to the length of time, because the possession of one being the pos- 
 session of all, there is a mutual possession between them ; but it is 
 otherwise in the case of tenants in common, where the possession 
 of one may be adverse to that of the other.'' This distinction is 
 clearly pointed out by Lord Redesdale, in Jlovenden v. Lord A)i- 
 nesley^^ who lays it down as a rule, that if the trust be constituted 
 by act of the parties, the possession of the trustee is the posses- 
 sion of the cestui que trust, and no length of such possession will 
 
 1 Shewen r. Vaiulerhor>t, Jiii sii/^. ; Moo- Waniburzee v. Kennedy, 4 Desaus. 474; 
 
 dier. Bannister, 4 Drew. 432; 5 Jur. N. Pierson v. Ivey, 1 Yerger, 297; Turner 
 
 S. 402; Fuller v. Hedmaii, 26 Beav. 614. v. Debell, 2 A. K. Mar.sh. 384; Bigelow v. 
 
 ■^ Brigfis V. Wilson, 5 De G., M. & G. Bigelow, 6 Hum. 97; Kane v. Bloodgood, 
 
 12- Fuller r. IJednian, ubi sup. ; Adams v. 7 Julin. Ch. 90; Farnam v. Brooks, 9 Puk. 
 
 Waller 1 \V. N. 200; 14 W. K. 783, V. 242-244; Williams v. W'atkins, 3 I'etcr.s, 
 
 (^ \y ' 51, 52; Cowart v Perrine, 3 C E. Green 
 
 3 In rase of a direct trust, no length of ( N. J. ), 454, 457 ; Conover v. Conovcr, Sax- 
 time bars the elaim between trustte and t.n (N. .1.), 403; Wanmaker ^;. Van Bus- 
 cesttii que trust. Cook u. Williams, 1 Green kirk, //a 685; Allen v. Woolley, 1 Green 
 Cli. 209; Baker i-.Whitin-, 3 Sumner, 476; Ch. 209; Stark v. Hunt m, 2 Green Ch. 
 ArmstronK v- Campbell,' 3 Yerger, 201; 311; Burdick v. Ganick, L. K. 5 Ch. Ap. 
 Overstreet i-. I'.ate, 1 .J. J. Marsh. 370 ; Cos- 233. 
 
 ter V. Murray. 5 John. Ch. 224; Gist v. * Wjxh v. East India Company, 3 1. 
 
 Cattei, 2 Uesau-. 53; Thomas v. White, 3 Wms. 309. 
 
 Li;t. 177 ; Stephen v. Yainlle, 3 Hayw. 221 ; 6 Hercy v. Ballard, 4 Bro. C. C 468. 
 
 1 recothick v. Austin, 4 Mas^n. 16; lurrill 6 Townshend v. Townshend, 1 Cox, 28; 
 
 f Muzzv, 4 Yerger, 104; Wisner v. Bar- 1 Brn. C C. 550, 554. 
 
 net 4 W'^ash. C. C 631; Brvant v. I'ackett, ■? Prince v. Ileylin, 1 Atk. 493; Cox v. 
 
 3 ll'ayw. 252; Fisher v. Tucker, 1 M'Cord Dolman, 2 De G., M. & G. 592, 597. 
 
 Ch. "169; Van Uliyn v. Vincent, ib. 314; « 2 Sch. & Let. 633.
 
 DIFFERENT GROUNDS OF PLEAS. 
 
 045 
 
 bar ; but if a party is to be constituted a trustee by the decree of 
 a Court of Equity, founded on fraud or the Uke, his possession is 
 adverse, and the Statute of Limitations will run fro'm the time 
 that the circumstances of the fraud were discovered. 
 
 Although it is a rule in Equity that no length of time will bar 
 a' fraud, yet a transaction cannot be impeached on the ground of 
 fraud, wliere the fact of its having been committed has been within 
 the knowledge of the party for many years ; ^ if, therefore the bill 
 states circumstances of fraud, and that the plain tiif did not become 
 apprised of them till after the period limited by the statute had 
 exjjired, a plea of the Statute of Limitations will not prevail, unless 
 the defendant meets such statement by an averment and answer, 
 negativing the fi-aud ^ or the fact of the discovery within the time 
 specified in the bill.^ The same rules which are applied by Courts 
 of Equity to cases of fi-aud, will also be applied to cases of mis- 
 take ; and it has been held, where there has been a mistake, that 
 the statute will not o])erate till after the expiration of six years 
 from the discovery of it.* The principle upon which this rule is 
 founded is, that the statute runs from every new right of action or 
 suit which accrues to the plaintiff, and that the discovery of the 
 fraud gives to the plaintiff a new right ; but, if he does not pro- 
 ceed within the time limited by the statute from such discovery, 
 he will be barred.* This rule, which appears to have been the one 
 relied upon by the Courts under the old Statute of Limitations, 21 
 Jac. I. c. 16, has been distinctly embodied in the Act of 8 & 4 AVill. 
 IV. c. 27, § 26.« 
 
 Ch. XV. § 2.. 
 
 In cases of 
 fraud : 
 
 Xot if fraud 
 discovered 
 many years 
 before. 
 
 Rule in cases 
 of mistake. 
 
 1 Gould V. Gould, 3 Story, 516. 
 
 2 See Goodrich v. Pendleton, 2 John. 
 Ch. 3H4. 
 
 3 Hovenden i\ Lord Anneslev, ?^i(S"/). ; 
 Blennerhas«e(t v. Dav, 2 Hall '& U. HS; 
 Whallev r. Whalley, 3 ISIIkIi, 1, 12; Blair 
 V Hiotiilev, 2 I'hil. 3.04, 360; 11 Jur. 617; 
 Beaden r.'Kiii;.', 9 Hare, 499. 
 
 In ea^es of Ir lud the Statute of Limita- 
 tions befrin- to run from tlie time of the 
 di.scoverv of the friiud. See Homer v. 
 Fish, 1 f'ick. 43^; NVelW r. Fish. 3 l'i<k. 
 74, 70 (2rl ed ). and cnses cited in note (1); 
 Jones V. (,'onowav, 4 Yeat<'8, 109; Sher- 
 w.ioil V. Sutton, •'' Mason, 143; Ilarsell v. 
 Kellev, 2 M'C'nl, 426; Bishop v. Little, 
 3 (ireenl. 40.'i; .Mor.t'ii >\ ('litindler, 8 
 Greeiil. H: Ihimilton '•. .Shepiiani, 2 .Murph. 
 11.1; l'a>'""- '■• liathawiiv. 3 Vt. 212; 2 
 Storv F,(|. .lur. §§ l.')21, l-Vil «. and notes 
 and ca-es citcvl; Slulbv r. Sliclbv, Cooke, 
 lt'3; I'Mch r. 15.11, i J. J. Marsh. 401 ; 
 ("raiie >•. I'rather. 4 id. 77; Croft r. .\rtliur, 
 8 iJesMiiH. 323; Waml'iir/.e r. Kenncvly, 4 
 I)»!'nus. 474 : Hailix i". Oavison, 3 M<jn 40; 
 Cole r. MMila'iiry, 9 GrcnL 131; Shiehlr. 
 Ati'Ictsoii, 3 Li-iii;!!. 729; Vj\fr\o\iuri;fr r. 
 Kibhr, 1 Hill Ch. 121; Haywood r. Marsh, 
 6 YiTf,'tT, 60; I'eniiock v. Krecniaii, 1 
 Walt->, 401 ; Uertine r. Varinn, 1 Ldw.Ch. 
 342; Hunter r. Spotswood, 1 Wash. 140; 
 
 Storv En. PI. § 754; Warner r. Daniels, I 
 WooV,. ^ M. 90; Radc'iff I'. Rowlev, 2 
 Barb. Ch. 23; Baker v. Grunrlv, 1 Duv:ill 
 { Ky. ), 281 ; Gibson v. Fifer, 21 Texas, 200 ; 
 Myers v. Hanlon, 12 Rich. (S. C.) Kq. I'JO; 
 Martin !'. Martin, 35 Ala. 560; Lonj^worth 
 V. Hunt, 11 Ohio(N. S.), 194; Smith v. 
 Fly, 24 Texas, 345. But tlie bar crested 
 by the .Statute of Limitations is not avoided 
 bV mere constructive fraud. Farnam v. 
 Brooks, 9 Pick. 212. Nor is the bar 
 avoided by a fraud which the pi>i"ty has 
 the full means of di^coverinj^. Farnam r. 
 Brooks, 9 Pick. 212; Cole r. M'Glathry, 9 
 Greeni. 131; Dodge v. Essex Ins. Co., 12 
 Grav, 65, 71. 
 
 ■• ■Hrof.ksbank v. Smith, 2 Y. & C. V.x. 
 5S, CO; Dodpe v. Kssex Ins. Co, 12 Grav, 
 05, 71 ; Ilounh V . Richardson, 3 Storv, 050; 
 Thomas r. Miirshall, 36 Ala. 504; Gibson 
 r. Fifer, 21 Te.xas, 260; Smith i'. Fly, 24 
 Texas 345. 
 
 6 Hovenden v. Lord Anncsley. 2 Sch. & 
 Lef. 63ti; South SeaCom|)any i'. Wynioud- 
 sell. 3 P. Wilis. 143. 
 
 So in Mas'-Mcliusetts, where the fraud 
 is coiici'mIciI bv the jx-rsoii liable to the ac- 
 tion, (ieiil. StJ». c. 165, § 12. In Maiiir. 
 there must be proof of iiciual fraud and 
 c ncealineiit by the party sought to be 
 charged. Cole "r. MGIathry, 9 Greeni. 131.
 
 646 
 
 PLEAS. 
 
 Cii. XV. 5 
 
 where the 
 (Icinand 
 arises upon 
 simple 
 contract, 
 acknowledg- 
 ment must be 
 in writing. 
 
 9 Geo. rV. 
 c. 14. 
 
 Actiuii" upon tlio jtriiu'iple above l;ii(l down, that the period when 
 every new liulit of action or suit accrues to the party, should be 
 the ]KM-iod from which to date tlie operation of the statnte, the 
 Courts have hehl, that where any new promise or any acknowledc^- 
 nient has been given by the debtor to the creditor or his agent/ 
 it confers a new right of action upon the creditor ; and that, there- 
 fore, the time witliin which the creditor's remedy would be barred 
 must be reckoned from the time of such acknowledgment or ])romise 
 being given.- U]>on this principle the Courts have held, that pay- 
 ment of any part of the ]irincipal or interest, within the period 
 limited, is a sufficient acknowledgment to take the case out of the 
 statute.* So they have held the rendering an account, or an offijr 
 to account, to be sufficient to prevent the bar.^ 
 
 Formerly, the Courts acted with very considerable laxity in their 
 decisions upon the nature of the acknowledgment which, in the 
 case of demands arising upon simple contracts, would be sufficient 
 to take them out of the Statute of Limitations : which laxity gave 
 rise to various questions as to the proof and effi?ct of acknowledg- 
 ments and promises, offi^red in evidence, for the purpose of taking 
 the case out of the operation of the statute. These questions 
 have now, however, in a great measure, been set at rest : for, by 
 Lord Tenterden's Act, it has been declared, that, in actions of debt 
 or upon the case, grounded on any simple contract, no acknowl- 
 edgment or promise by words only shall be deemed sufficient evi- 
 dence of a new or continuing contract, whereby to take any case 
 out of the operation of the statute, 21 Jac. I. c, 16, or to deprive 
 any party of the benefit thereof, unless such acknowledgment or 
 promise shall be made or contained by or in some writing, to be 
 signed by the party chargeable thereby ; ^ and by the Mercantile 
 Law Amendment Act, 1856,® an acknowledgment or promise by 
 writing, signed by the duly aiithorized agent of the party charge- 
 able thereby, has, with reference to the provisions of Lord Tenter- 
 den's Act, the same effect as if such writing had been signed by 
 the party himself. 
 
 1 Fuller V. Redman, 26 Beav. 614. 
 
 2 See Bangs y. Hall, 2 Pick. 378; F:xeter 
 Bank V. Sullivan, 6 N. H. 135; AVliitney 
 V. Bigelow, 4 I'ick. 110; I'orter ?;. Hill, 4 
 Greenl. 41; Deslion v. Eaton, 4 Greenl. 
 413; Russell v. Copp, 5 N. II. 154; Bailey 
 V. Crane, 21 I'ick. 324; Illsley «. .Jewett, 
 2 Met. 168. Upon this subject of the revival 
 of the remedy by an acknowledgment of 
 and a new proii)ise to pav the debt, see 
 Chitty Cont (10th Am. ed ) 924 et seq.. 
 and notes, and American cases cited; Jix 
 parte Dewdney, 15 Sumner's Ves. 479, 
 note (i), and cases cite'l; Baillie v. Sib- 
 bald, ib. 185, note (a). 
 
 3 Hony V. Honv, 1 S. & S. 668, 580; 
 Briggs V. Wilson, 17 Beav. 330. 
 
 * Karl Pomfret v. Lord Windsor, 2 Ves. 
 S. 485; and see Briggs v. Wilson, 6 De 
 G., M. & G. 12. 
 
 s 9 Geo. IV. c. 14, § 1. It is also declared, 
 by the same section, that where there shall 
 be two or more joint contractors, or execu- 
 tors or administrators of any contractor, no 
 such joint contractors, execufor, or admin- 
 istrator shall lose the benefit of the 21 Jac. 
 I. c. 16, so as to be chargeable in respect 
 or by reason only of any written acknowl- 
 edgment or promise made anil signed by 
 any other or oIIhts of them To tlie same 
 efl'ect, see Genl. Sts. Mass. c. 155, § 13 et 
 seq. 
 
 c 19 & 20 Vic. c. 97, § 13.
 
 DIFFEEENT GROUNDS OF PLEAS. G47 
 
 Lord Tenterden's Act does not, however, alter or take away or Ch. XV. § 2. 
 
 lessen the effect of any payment of any principal or interest made "■ v ' 
 
 by any person whatever ; so that the payment of any interest, or Part-pay- 
 any part of the principal, within the period limited by the 21 Jac. ^^^ ' 
 I. c. 16, § 3, will still have the effect of taking the case out of the 
 statute ; but by the 14th section of the Mercantile Law Amend- 
 ment Act, 1856, it is enacted that no co-contractor or co-debtor, 
 executor, or administrator of any contractor shall lose the benefit 
 of the '21 Jac. I, c. 16, § 3, so as to be chargeable in respect, or by 
 reason only, of payment of any principal, interest, or other money, 
 by any other or others of such co-contractors or co-debtors, execu- 
 tors, or administrators.^ 
 
 It is to be observed, that the operation of Lord Tenterden's Act 9 Geo. IV. c. 
 is confined to cases of demands arisinsr upon simple contracts: in i^^i is confined 
 
 » i _ J^ to simple 
 
 which cases only it w'as held, before the passing of the Act, that contracts. 
 parol promises or undertakings would destroy the operation of the 
 statute 21 Jac. I. c. 16. Where the cause of action was a tort, sub- 
 sequent acknowledgments were held nugatory ; ^ and in actions 
 arising upon S2)ecialty, the statute did not apply. 
 
 The statute 21 Jac. I. c. 16 provides, by § 2, that if any person Persons 
 entitled to the writs therein named, or Avho shall have a right of under legal 
 
 - , , „ ^ disabilities 
 
 entry, shall be under the age 01 twenty-one years, /erne covert, non may sue, 
 
 compos mentis, imjtrisoned, or beyond the seas,^ such ])erson or his j"'^*^'"^^,^.'"^*^' 
 
 heirs may, notwithstanding the twenty years, by the preceding their disabili- 
 
 section limited as the period within which such writs might be ceL&dJ^ 
 
 sued out or entries made, bring his action or make his entry, as he 
 
 might have done before the Act, so that such action or entry was 
 
 brought or made within ten years after his disqualification ceased ; 
 
 and by § 7, that persons under any of such disqualifications may 
 
 bring the several actions enumerated in the third section,* so that 
 
 the same be brought within tlie time before limited for bringing 
 
 the same after the termination of tlie disqualification ; but now, the 
 
 absence beyond the seas, or the imprisonment of a creditor, does 
 
 not entitle him to any time within wliicli to bring his action or 
 
 suit beyond the time fixed by 21 Jac. I. c. 16, § S.^ 
 
 • See Scwger v Aston, 3 Jur. X. S. 4fil, trrin in the statutes of ntlior StHtes, see 2 
 
 V. (J. S. Section 14 is not riftrosjiective. Stark Kv. (6tli Am. ed.)4>5r), note (3), Tit. 
 
 Jackson v. Wonlley, 8 Kl. & HI. 778; 4 I.imitaiioiis. In Massachusetts, it has been 
 
 Jur. N. S O.'iO; and see Thompson v. decided that n citizen of another State, 
 
 Wai'hnian, 3 Drew. 628; 2 Jur. N. S. who has never been in tliat Coniinon- 
 
 108O; Cockrill r. Sparke, 3 F. & F. 150; wealfh, is not a person "beynnd seas, 
 
 Jur. N S. 307. without anv <>f tlu; United States," and 
 
 2 ArijiiKwln^ llony v. Hony, 1 S. & S. tliiTi-foro not within fiie saviiip clause in 
 
 6C«, hix. f|i(! Statute (if Limitations. St. 17S^6, c. 62, 
 
 2 It is helrl in Ohio that tlie term "be- § 4; see (ienl. Sts. Mass. c. 166, § 6. 
 
 yond scMH," in their statute of 1H04, is '\Vliitney v. Goddard, 20 Fick. 304. 
 
 equivalent to " withf)Ut the limits of the ■* vIh/c, p. fi3'.). 
 
 State." liichardsfin !•. Itif'hard'^oti, Ham. * Mercantile Law Amendment Act, 186(5 
 
 (Ohio) 125. As to the coubtructiouofthia (la & 20 Vic. c. 97), § 10.
 
 (!48 
 
 PLEAS. 
 
 19 & -20 Vic. 
 c. 'J7, § l-J. 
 
 WIkto ex- 
 ecutor has not 
 proved. 
 
 Wliere 
 executor 
 de son tori. 
 
 Assif:fnee in 
 like position 
 to his 
 a.ssigiior. 
 
 3 & 4 Will. 
 IV. c. 27. 
 
 Altltough the Ttli section of tho 21 J:ic. I. c. 16, provided, as 
 a1)ove mentioned, for the statute not attaching where the plaintiif 
 was imder any of the disabilities therein mentioned, no ])rovision 
 was made to prevent its ojterating as a bar, during tho time the 
 debtor niiglit be out of the jurisdiction. The 4 & 5 Anne, c. 16, 
 § 19, lias, however, remedied that defect, and the creditor has 
 under it the same privilege, where the debtor is beyond the seas, 
 as he lutd by the statute of James, wliere he was beyond the seas 
 hinisolf; ^ but no part of the United Ivingdom of Great Britain 
 an<l Ireland, nor the Islands of Man, Guernsey, Jersey, Alderney, 
 and Sark, nor any islands adjacent to any of them, being part of 
 the Queen's dominions, is to be deemed to be beyond seas within 
 the meaning of the last-mentioned Act.^ 
 
 It is right to notice here, that it has been considered, tliat 
 the 21 Jac. I. c. 16, will not be a good plea in a suit against an 
 executor or administrator, where he has not proved the will, or 
 administered: because no laches can be imputed to a plaintiff for 
 not suing, while there is no executor or administrator against whom 
 he can bring his action ; " but where the allegation of the bill, 
 upon a fair construction, was, that the defendant had possessed 
 the personal estate, and therefore might have been sued as exec- 
 utor de son tort, a plea of the Statute of Limitations, by an exec- 
 utor who had not taken out probate till some yeai-s after the 
 testator's death, was allowed.* And it may be laid down as a 
 general rule, that, wherever a party takes by assignment, from 
 another, the assignee will not be in a better position than the 
 assignor: and therefore, where the Statute of Limitations might 
 have been pleaded against the assignor, it may be equally so 
 against the assignee, whether such assignment be by act between 
 the parties, or by act of law,* 
 
 It is to be remarked, that previously to the passing of the 
 statute 3 & 4 Will. IV. c. 27,*^ neither the 21 Jac. L c. 16, nor 
 any of the other statutes for the limitation of actions, applied 
 specifically to Courts of Equity : though those Courts have, in all 
 cases where legal titles and demands were the subject of litigation, 
 held themselves bound by them, and, in respect of equitable titles 
 and demands, have been influenced in their determination by 
 analogy to them.'' The first-mentioned statute specifically men- 
 
 1 Start I'. Meilish. 2 Atk. 61a. In Genl. servations in Webster v. Wob'ter, 10 Yes. 
 Sts. Mass. c. 1-55, § 9, there are provisions 
 on this .subjpct. 
 
 2 Mercantile Law Aniendmont Act, 1856 
 (19 & 20 Vic. c 97), § 12. This section is 
 not retro'^pective. Flood v. Patterson, 29 
 Beav. 295; 7 .(ur. N. S. .324. 
 
 8 .Io!iff- f. I'itt, 2 Vern. 694; 1 Eq. Cii. 
 Ab. 305, pi. 11; see also Lord Eldon's ob- 
 
 93. 
 
 4 Web-ter V. Webster, uhi sup. ; Storv 
 F,q. PI. § 753; Burditt v. Gcw, 8 Pict. 
 108. 
 
 5 South Sei Compjiny v. Wvmnndsell, 
 3 P. Wins. 143. 
 
 6 Amended bv 7 Will. IV. & 1 Vic. c. 
 28. 
 
 ' See ante, p. 559.
 
 DIFFERENT GROUNDS OF PLEAS. 
 
 649 
 
 tions suits in Equity amongst the actions and suits to be limited Ch. XV. § 2. 
 by its operation : it does not, however, apply to any suits but those 
 relating to real property, and moneys charged iipon land, and 
 legacies.^ These provisions have since been extended by the 23 & 24 Vic. 
 23 & 24 Vic. c. 38 ^ to the case of claims on the personal estates *^" ^^' ^ ^^' 
 of intestates. The statute 21 Jac. I. c. 16, may therefore still be 
 insisted upon, by way of plea, in all cases not included in the 3 
 & 4 Will. IV. c. 27, and the 23 & 24 Vic. c. 38, in which it might 
 before have been pleaded.^ 
 
 It may be useful, in this place, to point out the cases in which Cases in- 
 the Statute of Limitations of the 3 & 4 Will. IV. c. 27, operates as 3 & 4 Will. 
 a bar to suits in Equity. By the 24th section, all suits in Equity ^^'- e- 27 : 
 are barred, as against persons claiming any land or rent (within 
 the meaning of the definitions contained in the first section of Suit concem- 
 the Act), unless within the period during which, by -virtue ot the rent; 
 provisions thereinbefore contained, they might have made an entry 
 or distress, or brought an action to recover the same respectively, 
 if they had been entitled at LaAV to such estate, interest, or right, 
 as they claim in Equity, This right, however, in the case of an 
 express trust, it is declared, by the 25th section, shall be deemed where an ex- 
 
 , - . , ,, 1 • • ii 1 press trust; 
 
 not to have accrued against the trustee, or those claiming through 
 him, until the actual conveyance to a purchaser for valuable con- 
 sideration. It is also declared, that it is only against such pur- 
 chaser, and any one claiming through him, that the right shall 
 then be deemed to have accrued : so tliat, as between the trustee 
 and the cestui que trust, the law remains the same as it did before 
 the statute.* 
 
 It is also declared, by the 26th section, that, in every case of in cases of 
 concealed fraud, the I'ight to bring a suit in Equity for the recovery f^au^f ®*^ 
 of any land or rent, shall be deemed to have accrued at, and not 
 before, the time at wliich such fraud has, or with reasonable dili- 
 gence might have been known or discovered.^ It also provides, where there 
 that nothing in that section shall enable any owner of lands or for^^^iiuabir"^ 
 rents to have a suit in Equity for the recovery of such lands or cpnsidera- 
 rents, or for setting aside any conveyance of such lands or rents, 
 on account of ti;iiiil, against any bond fide purchaser for valuable 
 consideration who has not assisted in the commission of such fraud, 
 and who, at the time that lie made the purchase, did not know, 
 
 1 See § 40. Fi.r the cnsps on this sec- Acts, 93 ft seq. Tn ense» of efpiitahlo 
 tion, pei"" Sh«-ironl K. 1'. Acts, 24H-2G'2; waste, see Duke of I.eecW v. Karl .Vniherst, 
 SitRfl U 1*. Acts, 120, e<»f<7. 2 I'hil. 117, 125; 10 .lur. !t5G; ami a- to the 
 
 2 Si-e § 13. Acf f;''ii"i""yi "ix"" "• Giiyfere, No. 1, 
 8 Tor a collrctinn of cases on the 21 .lac. 17 Heav. 421"; Siind. U. I'. Acts, 105; see 
 
 I. c. lU, atid 9 (Jeo. IV. c. 14, see Shelf.rd !'"arn>iin v. Hmoks, it I'lck. 212; Colo v. 
 
 K. F. Acts, 283-310. M'GlMlhrv, U Greenl. 131; «M/e. 043, note. 
 
 * For the cases on §§ 24, 25, see Shel- ^ Colc'tJ. M'Glatliry, 9 Grccnl. 131; 
 
 ford K. v. AcU, 211-214-222; Sugd. R. T. ante, 045, note.
 
 0)50 
 
 PLEAS. 
 
 Cu. XV. 5 
 
 or iii'iiuies- 
 coiue. 
 
 Ill oases of 
 mortgage : 
 
 No redemp- 
 tion at^er 
 twenty years' 
 jRisscssion, 
 
 without 
 acknowledg- 
 ment. 
 
 What 
 
 acknowledg- 
 ment was 
 tormerly 
 sulhcient. 
 
 Present law 
 as to 
 
 acknowledg- 
 meuts : 
 
 :iiul had no reason to believe, that any such fmiul had been com- 
 niittod; and the 27th section saves the jurisdiction of Courts of 
 Equity on tlie ground of acquiescence.^ 
 
 It has been before stated, that, previously to the passinj^ of the 
 Act now under consideration, a plea of the Statute of Limitations, 
 21 Jac. I. c. 16, was held to be a good bar to a bill for the redemp- 
 tion of a mortgage, if the mortgagee had been in possession of the 
 mortgaged premises u])wards of twenty years ; ^ and, indeed, as 
 we have already seen, demurrers upon that ground have been 
 allowed.^ The Courts, however, permitted the redemption of 
 mortgages, if, at any time within the period of twenty years, the 
 mortgagee had acknowledged that the estate was redeemable prop- 
 erty. For this purpose, a positive acknowledgment of the mortgage 
 was not re(piired ; but any act on the part of the mortgagee, or of 
 any one claiming under him, tending to show that he considered 
 the mortgage as still subsisting (such as the keejjing of accounts), 
 was considered as sufficient to keep alive the interest of the mort- 
 gagor;* nor Avas it necessary that the acknowledgment should 
 have been made to the mortgagor, or to one claiming under him : 
 any act by which the existence of the mortgage was admitted, even 
 in transactions with a third party, was held sufficient ; ^ and so 
 has a recital in a will, or any other deliberate instrument ; ® and 
 even a parol acknowledgment, provided it was clear and unim- 
 peachable, and made within twenty years, has been permitted to 
 take the case oiit of the bar created by the statute.'' The 
 statute 3 & 4 Will. IV. c. 27, § 28, has, however, made a con- 
 siderable alteration in the law, in this respect, by enacting, that 
 where a mortgagee shall have obtained the possession or receipt 
 of the profits of any land, or the receipt of any rent comprised in 
 his mortgage, the mortgagor, or any person claiming through him, 
 shall not l)ring a suit to redeem the 'mortgage, but within twenty 
 years next after the time at which the mortgagee obtained such 
 possession or receipt : unless, in the mean time, an acknowledgment 
 of the title of the mortgagor, or of his right of redemption, shall 
 have been given to the mortgagor, or some person claiming his 
 estate, or to the agent of such mortgagor or person, in writing, 
 signed by the mortgagee or the person claiming through him ; and 
 in such case, no such suit shall be brought but within twenty years 
 
 1 For the cases on §§ 26, 27, see Shel- 
 ford R. P. Acts, 222-227-229; Sugd. K. P. 
 Acts, 98. 
 
 2 Ld. Red. 271; Coop. Ei^. PI. 254; 
 Beames on Pleas, 162; Story Lq. PI 757. 
 
 3 Artie, p. 560. 
 
 * Kdsed V. liuchttnan, 4 Bro. C. C 254, 
 256; 2 Ves. J. 84. 
 
 5 Hardy v. Reeves, 4 Ves. 466, 479; 
 Sm:irt r. Hiuit, cited ib. 478. 
 
 6 Ord V. Sniitii, 2 Kq. Ca. Ab. 600, pi. 
 27; IVri-v i'. Mirst'.n, 2 Bro. C. C. 397, 
 390; Hansard v. Hnrdy, 18 Ves. 455,459; 
 Price V. (Jopner, 1 S. & S. 347, 355. 
 
 7 Havnor v. (Jastler, 6 Mad. 274; Whit- 
 ing V. "White, 2 Cox, 290, 295; Perry v. 
 Mar&ton, uOi sup.
 
 DIFFERENT GROUNDS OF PLEAS. 
 
 651 
 
 next after the time at which such acknowledgment, or the last 
 of such acknowledgments, if more than one, was giveri. So that, 
 according to that section no acknowledgment will take a suit for 
 the redemption of a mortgage out of the operation of the Act, un- 
 less it is in writing, signed by the mortgagee, or the person claim- 
 ing through him, and given to the mortgagor himself, or to the 
 person claiming the estate, or the agent of such mortgagor or 
 person.^ 
 
 The same section then proceeds to enact, that when there shall 
 be more than one mortgagor, or more than one person claiming 
 through the mortgagor or mortgagors, the acknowledgment, if given 
 to any of such mortgagors or persons, or his or their agent, shall 
 be as effectual as if the same had been given to all of them ; but 
 where there shall be more than one mortgagee, or more than one 
 person claiming the estate and interest of the mortgagee or mort- 
 gagees, such' acknowledgment, signed by one or more of such mort- 
 gagees or persons, shall be effectual only as against the party or 
 parties signing the same, and the person or persons claiming any 
 part of the mortgage money, or land, or rent, by, from, or under him 
 or them, and any person or persons entitled to any estate, or interest, 
 to take effect after or in defeasance of his or their estate or estates, 
 interest or interests ; ^ and shall not operate to give to a mortgagor 
 or mortgagors a right to redeem the mortgage, as against the 
 person or persons entitled to any other undivided or divided part 
 of the money, or land, or rent. It also provides, that where such 
 of the mortgagees or persons as shall have given an acknowledg- 
 ment, shall be entitled to a divided part of the land or rent com- 
 prised in the mortgage, or some estate or interest therein, and not 
 to any ascertained part of the mortgage money, the mortgagor or 
 mortgagors shall be entitled to redeem the same divided part of 
 the lan<l or rent, on payment, with interest, of the part of the mort- 
 gage money which shall bear the same proportion to the whole of 
 the mortgage money, as the value of such divided part of the land 
 or rent shall bear to the value of the whole of the land or rent 
 comprised in the mortgage.^ 
 
 The above Act not only limits the right of the mortgagor to 
 redeem, but it jirovidcs, by § 40, against the mortgagee, or other 
 
 Cn. XV. § 2. 
 
 where more 
 than oue 
 mortgagor ; 
 
 where more 
 than one 
 mortgagee ; 
 
 ■where mort- 
 gagee giving 
 the acknowl- 
 edgment ha.s 
 only a share. 
 
 No suit to re- 
 cover money 
 charged ou 
 
 1 The arkn'iwlcdginent need not he 
 given wilhiii twenty ye.nn alter the niorl- 
 pacee has entered info possession. StMn<s- 
 fi.-ld V. Hol.Hon, 3 l)e (J., M. & G. (120, 
 02'i; Hce 111*) I'endletoii r. Rioth, 1 (Jill'. 
 35; r, .(iir. N. S. 840; 1 De (', , !•'. & J. y\ ; 
 6 .lur. N S. 1^2; Sugd. U. 1'. Actx, Iia, 
 ax t,) efl'ei't of Hfkiiowlcdgment hy tetiant 
 in iHil and heir nf tiie niurlgiigee. 
 
 2 It JR to he ohserveij, that the abovo 
 clause renders the ucktiuwledgniuut valid 
 
 after twenty years, not only against the 
 person signing the same, ami tiiosc claim- 
 ing under, or in privity witli liiin, but 
 against all others, wlietiier clainiing by 
 descent or purchase, in rpm;iiii(U-r or re- 
 version; and that there is no saving clause 
 in the Act in favor of persons under dis- 
 abililii-x, such as infancy, coverture, &c. 
 
 » I'or tlie cases on § 28, see .Shelford 
 i:. I'. Acts, 229-230; Sugd. U. I". Acts 
 111-116.
 
 652 
 
 PLEAS. 
 
 Cii. XV. § -2. 
 
 after last 
 payment or" 
 acknowledg- 
 ment. 
 
 § 40 eannot 
 be pleaded in 
 bar to a fore- 
 closure suit. 
 
 Effect upon 
 legacies. 
 
 person ontitk'd to ;iiiy moiu'y si'curi'd l)y mortgMo-e, judo-mcnt, or 
 lii'ii, or otlicrwiso clmrncil u])oii or pMynbU^ out of any land or rent, 
 at I>aw or in Equity, or to any lei;:icy, briniiinti: any action, suit, or 
 otljor i)rooiH>din<:; to recover sucli money, but within twenty years 
 next allter a present rinht to receive tlie same shall have accrued 
 to some person capable of giving a discharge for or release of the 
 same: unless, in the mean time, some part of the princijjal money, 
 or some interest thereon, shall have been paid, or some acknowl- 
 edgment of the right thereto sliall have been given in writing, 
 signed by the person by whom the same shall be payable or his 
 agent, to the person entitled thereto or his agent : in which case, 
 no such action, suit or proceeding can be brought but within twen- 
 ty years after such ])aynient or acknowledgment, or the last of such 
 payments or acknowledgments, if more than one, was given.'' 
 
 It has been decided, that a bill of foreclosure is a suit for the 
 recovery of the estate, and not of the money, although it may lead 
 to the payment thereof; and that, therefore, this section of the 
 statute cannot be pleaded in bar to such a suit.^ 
 
 Before the passing of the 3 & 4 Will. IV. c. 27, it had been 
 repeatedly held, that the Statute of Limitations could not be plead- 
 ed to suits for the recovery of legacies : although the Court, after 
 the lapse of a great time, would, under certain circumstances, 
 presume payment.^ It is now, however, provided by § 42, that no 
 interest in respect of any legacy shall be recovered but within six 
 years next after the same shall have become due, or next after an 
 acknowledgment of the same shall have been given to the person 
 entitled thereto, or his agent, signed by the person by whoni the 
 same was payable, or his agent. In the case of PhUUpo v. 
 3Iunnings,* Lord Cottenham considered it clear, that a sum of 
 
 1 See Cheever v. Perley, 11 Allen, 584. 
 Absence beyond the seas, and imprison- 
 ment are no longer disabilities witliin this 
 section. See 19 & 20, Vic. c. 97, § 10. 
 Some doubt having arisen whether the 
 mortgagee could make an entry, or brine 
 an action at Law, to recover possession of 
 the property, after twenty j'ears had 
 elapsed f^roni the mortgage becoming ab- 
 solute, although principal an! interest 
 miglit have been paid in the mem time, 
 the 7 Will. IV. & 1 Vic. c. 28 was passed, 
 by which it was declared, that mortgagees 
 might bring iictions or suits in Equity, to 
 recover the land, &c., at any time within 
 twenty j-ears, after the hist payment of 
 any pnrt of the principal or interest se- 
 cured bv the mortgage. By the 23 & 24 
 Vic. c. .38, § 13. a provision siniilnrto § 40 
 is enncted with resfiect to the case of 
 claims on the personal estate o' intestates. 
 For the ca-es on § 40, see Shelford H. P. 
 Acts, 248-202; Sugd. R. P. Acts, 119- 
 151. 
 
 2 W'rixon v. Vize, 3 Dr. & War. 104, 
 
 120, 121; Sugd. R. P. Acts, 121, 122; see, 
 oontra, Dearnian v. Wvche, 9 Sim. 570, 
 582; see, aNo SeaHe v. C()lt, 1 Y. & C C. C. 
 SS; Du Vigierv. Lee, 2 Hare, 326, 334: 7 
 Jur. 299; Sinclair D.Jackson, 17 Beav. 
 405. 
 
 8 Anon., Freem. 22, PI. 20; Piirker v. 
 Ash, 1 Vern. 256; Fotherbv v. Ilnrtiidgre, 
 2 Vern. 21; Wood v. Briaii't, 2 Atk. 521; 
 .Jones «. Turberville. 2 Vts. J. 11, 13; 4 
 Bro. C. C. 115; cited 2 Ves. .[. 280; Big- 
 gins V. Crawfurd, if). 571 ; .Sauzer v. I)e 
 Meyer. 2 Paige, 574; Kime v. Hloodgood, 
 7 .lohn. (Jh. 90; Andrews v. Sparkliawk, 
 13 Pick. 393. Though the Statute of Lim- 
 itations is no bar tn a legac}', A-et the 
 Court, in regard to very stale dHmand-', 
 will adopt the provisions of tlie statute, in 
 the exerci-^e of their discretion. Arilen v. 
 Arden, 1 John. Ch. 313; see Iriby v. M'- 
 Creii, 4 De-^au". 422; Wilson v. Kilcannon, 
 4 Havw. 185 ; Lindsay v. Lindsay, 1 Desaus. 
 151." 
 
 4 2 M. & C. 309, 314.
 
 DIFFEREXT GROUNDS OF PLEAS. 653 
 
 money, which had been bequeathed by a testator, upon certain Cn. XY. § 2. 
 
 trusts, and which was severed from the personal estate by the ' y ' 
 
 executor, for tlie purpose of those trusts, ceased to bear the char- 
 acter of a legacy, and assumed that of a trust fund, as soon as it 
 was severed from the general estate ; consequently, he decided, 
 that the statute did not bar a suit to recover the fund from the 
 
 executor. It was doubted w hether the Act, in any case, extended Applies to 
 
 to legacies not charged upon land ; ^ but in Sheppard v. Buke^ i^pcrsomd* 
 
 Sir Lancelot Shadwell Y. C. held, that it applied to legacies pay- estate. 
 able out of personal estate. 
 
 The Act also provides, that no arrears of dower, or any damages Arrears of 
 
 on account of such arrears, shall be recovered or obtained by any recoverable 
 
 action or suit, for a longer period than six years before the com- l>eyond six 
 
 5 » 1 J ^ years; 
 
 mencement of such action or suit, and that no arrears ol rent or ^^^^ arrears 
 of interest in respect of any sum of money charged upon or pay- of rent or 
 able out of any land or rent, or in respect of any legacy, or any " '^^ ^ ' 
 damages in respect of such" arrears of rent or interest, shall be 
 recovered by any distress, action, or suit, but within six years next 
 after the same respectively shall have become due, or next after an unless an 
 acknowledgment of the same in writing shall have been given- to '^^^^l^^^^^' 
 the person entitled thereto, or his agent, by the person by whom writing, 
 the same was payable or his agent.® It is, however, provided, 
 that where any prior mortgagee, or other incumbrancer, shall have or unless 
 been in possession of any land, or in receipt of the profits thereof, yeiTharbefn 
 within one year next before an action or suit shall be brought by "\ possession 
 
 •^ . , , , 1 • -vvithinayear. 
 
 any person entitled to a subsequent mortgage or other incum- 
 brance on the same land, the person entitled to such subsequent 
 mortgage or incumbrance may recover, in such action or suit, the 
 arrears of interest which shall have become due during the whole 
 time that such prior mortgagee or incumbrancer was in such pos- 
 session or receipt as aforesaid, although such time may have ex- 
 ceeded the tenu of six years.* It has been decided, that § 4l2 does 
 not a])ply to a case where the relation of trustee and cestui que 
 trust has existed, between the person in possession of the land, ^ 
 and the parties entitled to the legacies and annuities.^ A testator, 
 
 1 See Sauzer r. De Meyer, 2 I'aige, Mason i'. Bioadbcnt, 33 Beav. 296; Mar- 
 674. ' sliall V. Smith, lu Jur. N. S. 1174: 13 W. 
 
 2 9 Sim. 507, .56'J; 3 Jur. 168; and see It 198, V. C.S. ; Ldnuimls v. Waugh, L. 
 Paget "• I'olev, 2 IJii.g. N. (J. 079. K. 1 Eq. 418; 12 .Jur. N. S. 320, V. C. K.; 
 
 83 & 4. Will IV c. 27, §§ 41,42. Ab- and bee Slieifoni, K. 1'. Acts, 202-273; 
 
 «ence beyond the seas or inipri'^onnient is Siigd. K 1'. Acts, 119, l:iO-l.jl. 
 no li;ng"er a di^nbiiity wiiiiin tliesc sec- '' Young v. Lord Walerpark, 13 Sim. 
 
 tions. 19 & 20 Vic. c. 97, § 10. 204; Jur. 000; on app. lo.lur. 1; Ward 
 
 ■• Oti tills section, see the cases of Sin- v. Arch, 12 Sim. 472, 470; ('o.x r. Dojnian, 
 cIhIf r. Jiickson, 17 IJeav. 405; Klvy v. 2 I »e G.. M. & G. 592, 597; llunierr. Nock- 
 Norwood, 5 De G. & Sm. 240; 10 Jur. olds, 1 MN. & G. 040-050; Snow c. Hooth, 
 493; (Jrcenwav t'. IJronifield, 9 Hiire, 201; 8 De G., M. & G. 69; 2 Iv. & J. 132; 
 Holding 1;. Lane, 3 (Jitr. 501; ^ .lur. X. S. Lewis ?•. Dunconibe, 29 licav. 176; 7 Jur. 
 407; Jic Asbwcll, John 112; Kound v. N. S. 095; Shaw r. .lohnsou, 1 Dr. & Sm. 
 Bell, 30 Beav. 121; 7 Jur. N. S. 1183; 412; 7 Jur.N.S. 1006.
 
 654 
 
 PLEAS. 
 
 Form of pica. 
 
 Cii. XV. § 2. by I'hargino- lii.'^ ostato Avitli tlio piiyiiu'iit of an annuity, docs not 
 make the devisee a trustee for tlu' annuitant, so as to j)revent the 
 operation ot" the statute.^ 
 
 Care must be taken, in iVaniing a ])loa of a Statute of Limita- 
 tions, to set up tlie proper statute.- Thus, in all cases where tlie 
 suit relates to a debt or money due ujjon sim])le contract, or an 
 account, the statute of 21 Jac. I. c. 16, should be pleaded ; where 
 the subject-matter of the suit is land or rent, or the redemption of 
 a mortgage, or where it relates to the recovery of the princii)al 
 money secured on mortgage, judgment, or lien, or otherwise 
 charged upon or payable out of land or rent, at Law or in Equity, 
 or to the payment of a legacy, the 3 & 4 Will. IV. c. 27, must be 
 pleaded. And this statute must also be the one pleaded, where 
 the suit is for the recovery of the arrears of dower, or for the 
 arrears of rent, or interest accrued in respect of any charges upon 
 land or rent, or in respect of any legacy.^ 
 
 The statute of 3 & 4 Will. IV. c. 27, also contains provisions 
 for the limitation of demands by ecclesiastical or eleemosynary 
 corporations sole,* and of suits for enforcing the right of presenta- 
 tion to any church, vicarage, or other ecclesiastical benefice ; ® in 
 all these cases, the Act must be pleaded. 
 
 A plea of a Statute of Limitations must contain suificicnt affirm- 
 ative averments to bring the case within the statute pleaded.® 
 Thus, a i^lea of the statute 21 Jac. I. c. 16, to a bill for a debt, 
 must aver, besides reciting the statute, that the debt accrued more 
 than six years before the filing of the bill ; and so, where a demand 
 is of any thing executory, as a note for the payment of an annuity, 
 or of money at a distant period, or by instalments, the defendant 
 must aver that the cause of action has not accrued within six 
 years : because the statute bars only what was actually due six 
 years before the action brought.'' ' It does not appear, however, 
 that a particular form of words is necessary in such averments, 
 l^rovided those made use of are suflicient to bring the case Avithin 
 the statute ; therefore, where the plea, instead of averring that 
 
 Ecclesia.?tical 
 corporations. 
 
 Positive 
 averments 
 
 1 Francis v. Grover, 5 Hare, S9, 49; 10 
 Jur. 280; and see Hargt eaves v Michell, 
 6 Mad. 326; Jacquet f. Jacquet, 27 Beav. 
 332. 
 
 2 See the form of such a plea, Willis, 
 562; 2 Eq. Drafts. 11.3, 114. In setting up 
 a defence under a public statute, it is not 
 necessan,', either in a Court of Chancery 
 or in a Court of Law, that the pleader 
 should set forth the statute in his jilea, or 
 that he should allege the existence of a 
 statute of which tlie Court is judicially 
 bound to take notice. It is suflicient for 
 bini to state tlie facts which are neces.sary 
 to bring the case within the operation of 
 the statute; and to insist that upon these 
 lacts the plaiutifl"'6 right or remedy is at 
 
 an end. The Court will then judicially 
 take notice of the existence of the statute 
 and declare its legal effect upon the case 
 as made by the pleadings. Bogardus v. 
 'I'rinitv Church, 4 I'aige, 148,197; see 
 Salter" V. Tobias, 3 Paige, 338. 
 
 ^ As to suits in respect of an intestate's 
 personal estate, see 23 & 24 Vic. c. 38, 
 §13. 
 
 4 Sect. 29. 
 
 6 Sects. 30, 31, 32, 33. For the cases 
 on §§ 29-33, see Sheltbrd R. P. Acts, 236; 
 Sugd. K. P. Acts, 152-164. 
 
 *• See Andrews v. Huckabee, 30 Ala. 
 143. For forms of such plea, see 2 Van 
 Hey. 113, 114. 
 
 ' Ld. lied. 271.
 
 DIFFERENT GROUNDS OF PLEAS. 
 
 655 
 
 the money in question was not received within the last six years, Ch. xy. § 2. 
 
 averred, that no cause of action accrued within that time, it was "— — y ' 
 
 hehl sufficient.^ 
 
 Whenever any matters are stated in the bill whicli are calculated Negative 
 to take the case out of the statute, these must be met by negative averments. 
 averments.^ Thus, if the bill charges fraud, the plea must deny 
 the fraud,^ or aver that the fi-aud, if any, was discovered above six 
 years before the filing of the bill.'* So, if the bill alleges, that the 
 fraud was not discovered till Avithin six years before the bill was 
 filed, the plea must aver that the fraud (if any) was not discovered 
 within that time,^ If, moreover, the defendant is interrogated as 
 to any statements in the bill which allege matter ancillary to, or 
 afibi'd evidence of facts directly negatived by the jjlea, such state- 
 ments ought to be met by an answer in support of the plea.® 
 Where no answer is required, the defendant has been allowed to 
 plead the statute orally at the hearing.'' 
 
 The Statute of Frauds ^ may be pleaded in bar to a suit to statute ot 
 which the provisions of that Act apply.^ Thus, to a bill for a ^^'^auds: 
 discovery and execution of a trust, the statute, with an averment 
 that there was no declaration of the trust in writing, may be 
 pleaded : ^° though, in the case cited, the plea was overruled by 
 an answer admitting in effect the trust." To a bill for the specific 
 performance of an agreement, the same statute, with an averment 
 that there was no agreement in writing signed by the parties, has 
 also been pleaded.^'^ The Statute 'of Frauds may also be pleaded 
 to a bill to enforce a parol variation of a written contract, unless 
 
 1 Sutton V. Lord Scarborough, 9 Ves. 
 71,75. 
 
 2 Ante, pp. 605, 614. 
 
 8 liicknell v. Gough, 3 Atk. 558. 
 * Ld. Ked. 269; South Sea Company 
 V. Wvmondsell, 3 P. Wins. 143. 
 
 6 /biij.; Ld. Ked. 26'.i; Sutton v. Lord 
 Scarborough, 9 Ves. 71,75. 
 
 « Dearman v. VVvclie, 9 Sim. 570, 582; 
 Foley V. liill, 3 M & C. 476, 480; 2 .Jur. 
 440. But where the plea sets up the Stat- 
 ute of Limitations in defence, it is not nec- 
 esHiiry in su'diplento deny anew promise 
 within si.x years, unless the bill alleges 
 BUch promise; but if so denied in the plea 
 it will be mere .surplusage. iJavison v. 
 Schcmerhorn, 1 Harb Ch. 480. 
 
 7 Lincln v. Wright, 4 Dc G. & J. 16; 
 5 Jur. N. S. 1142; Sneafl v. (Irecn, 8 Jur. 
 N. S. 4, .M. K. ; but see Holding v. IJarton, 
 
 1 Sm. & (i. Ap. 2r.. 
 
 8 29 Car ILc. 3. 
 
 9 Ld. Ked. 265; Story Eq. I'l. § 761 
 tt leq. ; Cozine v. (iraliam, 2 I'aigc, 177; 
 Meach ». I'erry, L). (;hi[i. 1X2; I hornton 
 V. Henry, 2 Scatn. 219; Kin/ier. Penrose, 
 
 2 Scam. 520. The defence of this statute 
 must 1)0 iii'^iste i on byiinswer, or the de- 
 fendant inu-t net it up by way of ])lia; he 
 cannot by demurrer to tue bill rely on tho 
 
 Statute of Frauds, unless it clearly ap- 
 pears, on the face of the bill, that the agree- 
 ment is within the statute. Switzet v. 
 Skiles, 3 Gilman, 529. Hut when it does 
 so appear the objection may be taken by 
 demurrer. Walker v. Locke, 5 Cusli. 90; 
 see Duilley v. liiielielder, 53 ^Liine, 403, 
 406; Farnham t'. Clements, ol Maine, 426; 
 Cranston v. Smith, 6 K. L 231 ; ante, p. 561 
 note. For forms of such [dea, see 2 V^au 
 Hey. 107, 112. 
 
 10 Cottington v. Fletcher, 2 Atk. 155. 
 
 11 Ld Ked. 265; see Dean v. Dean, 1 
 Stockt. (N. J.) 425. H' the Court can ex- 
 ecute the trust from the admissions made 
 by the answer, so that the ])laintiiris not 
 umler the necessity of resoriins; Xu parol 
 proof of the trust, to entitle him to re- 
 lief, such admissions will exclude the de- 
 fendant from the benelit of the statute, if 
 not iiisi-ted on in tho answer. Dean v. 
 Dciin, nljt sup. 
 
 1- Jlj. 260; RIu«sell v. Cooke, I'rcc. in 
 Ch. 533; Child v. (iodolpliin, 1 Dick. 39. 
 42 ;S. Ciiom. Chdd )>. (Joinber, 3 Swiinst. 
 423 n.; Hawkins c. Holmes, 1 I'. Wms. 
 770; Clerk r. Wright, 1 Atk. .12; St<iry 
 \'.i[. 1*1. §671; Stevens J?. Cooper, 1 .John. 
 Cti. 42.'). I'f)r form of such plea, 8ce 2 
 Van Hey. 112.
 
 656 
 
 PLEAS. 
 
 Ch. XV. § 
 
 Benefit of 
 statute may 
 be had by 
 answer. 
 
 Bills relating 
 to trusts. 
 
 "Where 
 
 a^eement 
 admitted, bu 
 statute not 
 set up. 
 
 Where no 
 
 answer 
 
 required. 
 
 tho vari.ilioii is siu-li ns ninouuts to a iitcMV waiver of a terin in the 
 agivi'MU'iit : siK'h as the time for tlie coiimu'iK'einent of a leuse.^ 
 
 A pkM of tliis sort must eoutaiu an averment, that there was no 
 (leehiratioii of trust or agreement in writing, duly signed;* and 
 where there are any equitable facts alleged, Avhich may have the 
 effect of taking the case out of the operation of the statute, they 
 nmst be met by negative averments in the plea,' and must also, if 
 interrogated to, be denied, by answer in support of the plea.* This 
 proposition api)ears to be strictly in conformity with the princi- 
 l>les before laid down,^ as well as with the existing authorities. It 
 is right, however, to state, that iit Lord lledesdale's treatise,*^ his 
 Lordshij) mentions it as a ])Osition Avhich was formerly considered 
 to be Avell founded, but which the decision of the Court, in one 
 case,'' had rendered it impossible now to sustain; and it cannot 
 be denied, that the point is one of considerable difficidty ; and as 
 it is now placed beyond all doubt that the benefit of the statute 
 may be had, if insisted on by answer, although a parol agreement 
 be admitted,^ there can be little use in pleading it in bar : at least 
 to bills seeking the specific performance of a contract. 
 
 AVith respect to bills relating to trusts, where there is no dec- 
 laration of trust in writing, it seems that there is some doubt 
 whethei- tlie rule which has been apjjlied to parol agreements, 
 namely, that, although the defendant confesses them by his an- 
 swer, yet, if he insists on the protection of the statute, no decree 
 can be made merely on the ground of that confession, will be 
 extended to the confession of a trust by answer. In such cases, 
 therefore, the safest course will be to meet the case made by the 
 bill by a plea of the statute, negativing any matter charged by 
 the bill which may avoid the bar: generally by way of averment 
 in the plea, and particularly and precisely by way of answer in 
 support of the plea, if discovery is required as to such matter.^ 
 
 It should be added, that if a defendant, in an answer, admits 
 the agreement, and does not claim the benefit of the statute, he 
 will be considered to have waived it, and he cannot afterwards 
 be allowed to insist upon it, although he claims it by answer 
 to the bill, when amended.^" Where no answer was required. 
 
 1 .Jord in V. Suwkins, 1 Ves. J. 402. 
 
 2 Ld. lied. 200. 
 
 3 As to negative averments, see ante, 
 pp. 605, 014. 
 
 * Coop. Eq. PI. 2.56 ; Beames on Pleas, 
 172; and for form of such plea, see 2 Van 
 Hev. 107; s^e a!s<> Denys v. Loeock, 3 M. 
 & C. 205,234; 1 Jur 605; Dearnian v. 
 Wvche, 9 Sim. 570, 582. 
 
 5 Antt,i>\>. 613,014. 
 
 6 Ld. Ktd. 268. 
 
 " Whitbreiid v. Brockhurst, 1 Bro. G. 
 C. 404, 416; 2 V. & B. 153 n. 
 
 8 Ld. Red. 207 ; Moore v. Edwnrd.s, 4 
 Ves. 23; (.'ooth v. .Jackson, Ves. 17; 
 Blagden «. BriidbR;ir. 12 Ves. 460, 471; 
 Howe r. Teed, 15 Ves. 375; Jackson v. 
 UglHiider, 2 II & M. 405. As to the mode 
 ot iiii-isting on tlie >tatute by answer, see 
 Skinner v. M'Douall, 2 Ue G. & Sni. 265; 
 12 Jur. 741. 
 
 " Ld. lied. 268 ; see Bearaes on Pleas, 
 179 e< seq. 
 
 w Beames on Plea«, 178, and notes; 
 Skinner v M"I)ouall, 2 De (i. & Sm. 205; 
 12 Jur. 741; Baskett v. Cafe, 4 De G. &
 
 DIFFERENT GROUNDS OF PLEAS. 657 
 
 the defendant has been allowed to plead the statute orally at Cn. XY. § 2. 
 
 the hearing ; ^ and if the defendant denies, or does not admit, the ' > -^ 
 
 agi-eeinent, the plaintiff" must prove that it can be enforced.^ 
 
 Before quitting the subject of the Statute of Frauds, it should statute of 
 be observed, that the Court will not allow a party to avail himself Jan^'J be 
 of the Statute of Frauds for the purpose of committing a fi-aud; ^ pleaded, to 
 and, therefore, where a mere mortgage was contemplated, and an ^ commit a 
 absolute conveyance was made by one, with the intention of a '"faud. 
 defeasance being executed by another, which was never carried 
 into eifect, the Court refused to allow a defendant to avail himself 
 of the Statute of Frauds, to protect him in the enjoyment of the 
 estate under the conveyance.* And so, where an heir-at-law filed 
 a bill against a devisee, alleging that the devise was upon a secret 
 trust, for a charitable purpose, contrary to the statute 9 Geo. II. 
 c. 36, a plea of the Statute of Frauds was overruled.^ And the 
 Court will never permit a party to protect himself, by a plea of 
 the statute, from discovering whether a devise was obtamed or 
 prevented by the undertaking of the devisee or heir to do certain 
 acts in favor of individuals." 
 
 It is to be observed here, that sales conducted under a decree or Sales by the 
 
 ^ .i-ir-(^.i?-ri 17 Court are not 
 
 order of the Court, are not withm the Statute ot Jb rauds.' ,^.iti,in the 
 
 The above statutes, namely, those for the limitation of actions statute. 
 and suits, and for the prevention of fii-auds and peijuries, have been ge^^'af °^''^'' 
 the object of particular attention in the preceding pages, because statutes: 
 they are those which have been most frequently the subject of 
 discussion before the Court ; but any other public statute, which 
 may be a bar to the demands of the plaintiff', may be taken advan- 
 tage of by a plea, containing the averments necessary to bring the 
 ease of the defendant Avitliin the statute, and to avoid any equity 
 which may be set up against the bar which the statute creates.* 
 
 Sm. 3fe8; Ridgway v. Wharton, 3 Ue G., Dean, 1 Stockt. (N. J.) 425; Ashmore v. 
 
 M. & G. t>7", (J'Jl ; Jackson v. Ogiander, a Evans, 3 Stockt. (X J.) 151 
 
 H. & M. 4<J5. It is now scttlc'l, tliiit a i Lincoln «. Wright, 4 l)e G. & J. 16; 5 
 
 party, who iidiiiits a parol iif^reement by Jur. N. S. 1142; Snead i'. Green, 8 Jur. 
 
 answer, inav nevertllele^»have the beneht N. S. 4, M. K ; S. C nnm. Green i\ Snead, 
 
 of the statute, if he, by liis answer, prays 30 IJcav. 231 ; but see Holding v. Barton, 
 
 the beiiedt of it. If he does not thus in- 1 Sin (fcG. Ap. 25. 
 
 gist on the benefit of tiie statute, he must - liidgway v. Wliarton, ubi sup. 
 
 be taken to renounce it. Woods v. Dike, " Sturv Kii- I'l. § VlJ7. 
 
 11 Oiiio, 455; 2 Storv Ivj. Jur. §§ 755-758; ■» l)i.\on v. I'arker, 2 Ves. S. 219, 224. 
 
 Flagg I' Mann, 2 Smnner, 52^, 520; New- <■' SticklMnd v. Aldridgc, Ves. 516. 
 
 ton w Swasey, 8 N- H- '■>• Tlmninson v. « //>. 51'J; Story i;<i. I'l. § 768; Chani- 
 
 Todd, 1 I'eiersC C.388; Talbot i'. IJowen, berlain r. Ager, 2 V. & 15. 25'J ; see also 
 
 1 Marsh. 4:57; Kowtn v. Kowton, 1 Hen. Hnrrow v. (ireenough, 3 Snniner'.s Ves. 
 
 &M. ill; Stearns v. Hubbard, 8 (Jnu.-nl. 152, note («); 1 Story K<1. Jur. § 256; 2 id. 
 
 320; Story Kij. I'l. § 763; Ontario Hank v. § 781; Guullalier v. Guallaher, 5. Watts, 
 
 RoMt, 3 I'liige, 478; (Jo/.ine v. (jraliain, 2 200. 
 
 Paige, 177; Thornton!!. Henry, 2 Seam. 7 Attorney-General v. Day, 1 Ves. S. 
 
 219; .Moore t'. Kdwards, 4 Sumner's Ves. 218, 221; lilagilen v. Bradbear, 12 \ eb. 
 
 23, note (<(); W'hitcliurch v. I'.evis, 2 IJro. 460, 472. 
 
 C. C. (I'erkins's e.i.) 566, 567, note (e); « Ld. lied. 274. Of this nature are 2 
 
 Van Diivne v. Vreeland, 1 l'.ea.slev (N. J ), & 3 W. IV. c 71;3 & 4 W. I\ . <•. 42; as 
 
 142; S. <;. 3 Stockt. (N. J.) 370; Deau v. to § 6 of which la,',t Act, see Moodie v. 
 
 VOL. I. 42
 
 658 
 
 PLEAS. 
 
 rii. XV. § 
 
 Apiinst Iniy- 
 int: <ir solliii}; 
 titles. 
 
 Ajrainst 
 Imnkrupts. 
 
 Pleas of 
 private and 
 focal acts. 
 
 Pleas of 
 statutes miist 
 be upon oath. 
 
 2. Pleas of 
 matters of 
 record : 
 
 Thus, in Wfr/in)s v. Lamlr} the stMliifo .H'i TTon. VTTT. c. 9, 
 ii'^ninst l>u\ iiiL;- ;in.l sclliiiu- ]ir(>(i'ii.li'(l litU's, \v:is pleaded, and the 
 ))loa allowed. And so, wlti'ie a lull waw liled ajjainst a bankrupt, 
 in respect of a demand oeeurring befoi-e his bankruptcy, the 5 Geo. 
 11. c. ;)(l,'- was pleaded, and the plea allowed.'' And so, it has been 
 lu'M, th;it where a mortgagee of an advowson apjiears and presents 
 TO the ("liiirch, wliich he is not entitled to do before foreclosure, a 
 bill bv the mortgagor, seeking to conij)el a resignation, must be 
 brouo-ht within six mouths after the death of the late incumbent: 
 being the period within which, by the Statute of Westminster 2,* 
 a quarc inipedit must be brought.^ 
 
 A ])rivate or local statute may also be pleaded in the same man- 
 ner; thus, to a bill impeaching a sale of land in the fens, by the 
 conservators under the statute for draining the fens, the defendant 
 l->leaded the statute, and that the sale was made within and ac- 
 cording to the statute, and the plea was allowed.^ It is to be 
 observed, that a plea of a private Act of Parliament must state the 
 Act, or at least so much of it as relates to the matter insisted 
 upon ; and it seems that, although an Act, which is in its nature 
 private or local, contains a clause directing that it shall be recog- 
 nized in Courts as a public Act, such a clause will not dispense 
 with the necessity of setting the Act out.'' 
 
 A plea of a statute must be put in upon oath ; for, although the 
 statute itself is matter of record, the avennents necessary to 
 bring the case within it are matters in jmis, which must be suj)- 
 ported by the oath of the party.^ 
 
 2. We come now to the consideration of those pleas in bar 
 which consist of matters recorded, or as of record in the Court 
 itself, or some other Court of Ecpiity, or in some Court not a 
 Court of Equity.^ 
 
 Bannister, 4 Drew. 432, 5 Jur. N. S. 402; 
 Koddam i'. Morlev, 1 De G. & J. 1; 3 Jur. 
 N. S. 449; 2 id. "805; 2 K. & J. 336, and 
 cases collected in SheU'ord K. P. Acts, 279- 
 281; Sugd. K. P. Acts, 149. In regard to 
 the plea of Usury, see New Orleans, G. 
 L. & B. Co. V. Dudley, 8 Paige, 452; Dyer 
 V. Lincoln, 11 Vt. 300; Lane v. Elizey, 
 4 Hen. & M. 504; S. G. C Kiind. 661; 
 (Chambers v. (Jhambers, 4 Gill &J. 420; 
 Shed V. GarlieM, 5 Vt. 39; Vroom v. Dit- 
 nias, 4 Paige, 526; New Jersey Patent 
 Tanning Co. v. Turner, 1 McCarter(N. J.), 
 226,229; Cu tis v. Master, 11 Paige, 15; 
 Kowe v. Phillips, 2 Sandf. Ch. 14. 
 
 1 G. Coop. 34, 38; see al^o Wall v. 
 Sfubbs, 2 V. & 11. 354, 357. For form of 
 pleii under this statute, see Beames on 
 P.eas, 333. 
 
 2 Rppeaied bv 6 Geo. IV. c. 16; see now 
 12 & 13 Vic. c.'l06; 24 & 25 Vic. c. 134. 
 
 3 De Tastetr. Sharpe, 8 Mad. 51, 60. 
 
 For form of plea of Bankruptcy, see 2 Van 
 Hey. 96; and as to such a plea, see ante, 
 p. 631. 
 
 4 13 Ed. I. c. 5. 
 
 5 Gardiner v. Griffith, 2 P. Wms. 405 ; 
 cited Atk. 559. 
 
 6 Brown v. Hamond, 2 Cha. Ca. 249. 
 
 ■^ Nabnb of Arcot v. East Jmlia Corn- 
 pan}', 3 Bro. C. C. 292, 308 ; Nabob of the 
 Cariiatic v. Ea'-t India Company, 1 Ves. 
 J. 371, 393; Bailey ». Birkenhead Itailway 
 Company, 12 Beav. 433, 443; 14 Jur. 119; 
 sec 13 & 14 Vic. c. 21. 
 
 8 Wall V. Stubbs, 2 V. & B. 354, 367; 
 1 Smith, Ch. Pr. (2d Am. ed.) 232. 
 
 '■> [A. Bed. 236, 237. If a former de- 
 cree is relied upon, it must be duly pleaded. 
 Galloway v. Hamilton, 1 Dana, 575; Fer- 
 guson V. Miller; 5 Oliio, 459 Or it may 
 be set up in tiie answer. White v. Bank 
 of U. States, 6 Ohio, 528; S. P. Strader v. 
 liyrd, 7 Ohio, 184.
 
 DIFFERENT GROUNDS OF PLEAS. 659 
 
 A decree or order of the Court, by which the rights, of the par- Ch. XY. § 2. 
 
 ties have been determined, or another bill for the same matter ' ■< 
 
 dismissed, may be pleaded to a new bill for the same matter ; ^ and Decree or 
 this, even if the party bringing the new bill were an infant at the eourt'^of 
 time of the former decree : for a decree enrolled can only be altered Chancery. 
 upon a bill of review.^ 
 
 Bv tlie oriscinal practice of the Court, a decree or order dismiss- Decree or 
 ing a fomier bill for the same matter could only be pleaded in bar "jj^s^h 
 to a new bill, where the dismission had been upon the hearing : ''' 
 for a dismissal was a bar only, where the Court had determined when a bar to 
 that the plaintiif had no title to the relief sought by his bill. It 
 was not, however, necessary, in order to entitle a defendant to 
 plead a former suit and decree of dismissal, that the decree should 
 have been made upon discussion of the merits : if the dismissal 
 had been merely for want of evidence, the decree would have been 
 equally a bar to another suit/ Under the present practice, if the After cause 
 plaintiff, after the cause is set down to be heard, causes the bill to [jo^n'^for'"''^ 
 be dismissed on his own application, or if the cause is called on to hearing; 
 be heard in Court, and the plaintiff makes default, and by reason 
 thereof the bill is dismissed, such dismissal, unless the Court other- 
 Avise orders, is equivalent to a dismissal on the merits, and may be 
 pleaded in bar to another suit for the same matter.^ Under the but not when 
 old practice, an order dismissing a bill upon an election by the gig^on^'to"'' 
 plaintiff to proceed at Law,^ or for want of prosecution,'' was not proceed at 
 a bar to another bill : and it does not seem that, in these cases, the ^vant of 
 Order above stated has affected the practice. prosecution. 
 
 A decree cannot be pleaded in bar of a new bill, unless it is for Decree must 
 the same matter as the bill to which it is pleaded;' therefore, a ^^attlrT""^ 
 decree in a former suit, for an account of tithes, could not have 
 been pleaded to a bill for the tithes of any subsequent year.^ It 
 
 1 Barker ». Belknap, 39 Vt. 168. A 73; and anfe, pp. 239, 240. One assignee of 
 
 bill rej^ularly dismissetl upon tlie merits, a bankrupt nciy plead the allowance of a 
 
 where the matter has been pas.scd upon, demurrer by one of his co-assignees to the 
 
 and the di-nii>sal is not without prejudice, Siiine bill. Tarleton v. lloinb}', 1 Y. & C. 
 
 may be pl-aled in bar of a new hill for the Ex. ;5;>3, 336. 
 
 »ame mutter. I'erine r. Uunn, 4.iohn. Ch. '' Ld. Ked. 237. 
 
 142; 8«e Neafie r. Neafie, 7 .John. Ch. 1; ^ lb. 238. 
 
 Storv Kq. I'l. § 793; Wilcox v. Badger, * Jones v. Nixon, Tounge, 859; ante, 
 
 eOliio, 406; l-'rench v. French, 8 (Jliio, p. 032. 
 
 214; .(enkins v. KIdn dge, 3 Story, 2'.»'.j; 6 Order XXIII. 13. See Cummins v. 
 
 Davis V. Hall, 4 .\»\m^Vj\. (N. C.) 301; Bennett, 8 I'aige, 79; Sears y. .Jack-on, 3 
 
 Mickles V. Thiyer, 14 Allen, 121, 122; Stockt. (N. J.) 40; llurubly v. Slaiulou, 
 
 Foote V. Gibbs," 1 Gray, 412; p«st " den- 24 Ala. 712. 
 
 end nature of ili'crefg mi'l oi-'lers." Such « Countes^ of Tlymouth v. Hladon, 2 
 
 a decree is conclu-ive against a new bill Vern. 32; aji<e, p. 633; ^wst, Chap. XIX. 
 
 though rendered in another State. Low § 4, KUclion. 
 
 «. .Vlu->Hey, 41 Vt. 393; see Brown w. Lex- 7 Ld. Ked 238; Brandlyn v. Ord, 1 
 
 ington and l)anville K.It. <."o., 1 McCartcr Atk. 571. 
 
 (N J), 191. Kor how lar tlie disirii^-al " Sec Neafie v. Neafie, 7 John. Ch. 1; 
 
 of a bdl, bv a plaintinsiiinj; on behalf of Lyon v. Tiilhniidge, 14 .Fohu. 501; Ale- 
 
 himsell and '>tiiers, is a bar to another suit nude r. I)(daire,3 Ue'-aus. 44. 
 
 by pcs'iiiH iiaving Ihe same interest, se'i " Minor Canons of St. Paul's u. Crick- 
 
 1 
 
 anker v. Wallers, H Beav. 92, 97; 9 Jur. ctt, Wrightw. 30.
 
 660 
 
 PLEAS. 
 
 Oil. XV. § 2. 
 
 When 
 decree mav 
 be pleaded 
 where fraud 
 aLle{;ed. 
 
 Decree must 
 be sij^ed and 
 enrolled ; 
 
 how pleaded, 
 when not 
 signed and 
 enrolled. 
 
 must also bo conclusive (if tlio riglits of (lie jilaiulitrs in the bill to 
 wbich it is pleaded, or of those under whom they claim; therefore, 
 a decree against a mortgagor and order of foreclosure enrolled, 
 will not be deemed a bar to a bill by intervening incund)rancers 
 to redeem, although the mortgagee ha<l no notice of their incum- 
 brances.' It must also be as beneficial to the plaintift' as that 
 whidi might be obtained in the second suit.^ 
 
 The decree must also be in its nature final, or afterwards made 
 so by order, or it will not be a bar;'' therefore, a decree for an 
 account of ])rincipal and interest due on a mortgage, and for a 
 foreclosure in case of non-payment, cannot be pleaded to a bill to 
 redeem, unless there has been a final order of foreclosure.* 
 
 A plea of a decree founded on a particular deed, which it is the 
 object of the second suit to set aside, on the ground of fraud dis- 
 covered since the decree made, would not be good.^ If, however, 
 a bill is brought to impeach a decree, on the ground of fraud used 
 in obtaining it (which may be done withoiit the previous leave of 
 the Court), the decree may be pleaded in bar of the suit, with 
 avemients, negativing the charges of fraud, and (if interrogated) 
 supported by an answer fully denying them.^ It is presumed also, 
 that, even in the case last put, of a bill to impeach the deed upon 
 which a decree has been founded, a plea of the decree, sup])orted 
 by similar avemients and answers, would be good. 
 
 A decree must be signed and enrolled, or it cannot be taken 
 advantage of by plea : '' though it may be insisted upon by way of 
 answer.^ Although a decree not signed and enrolled cannot be 
 pleaded directly in bar of the suit, it seems that it may be pleaded 
 to show that the bill has been exhibited contrary to the usual 
 course of the Court, and ought not, therefore, to be proceeded 
 upon ; ' for, if the decree had appeared upon the face of the bill, 
 the defendant might have demurred : '" a decree not signed and 
 enrolled being to be altered only upon rehearing, as a decree 
 signed and enrolled can be altered only upon a bill of review." 
 
 1 Morret v. Westerne, 2 Vem. 663; see 
 anU, p. 277; Ld. Ked. 238; and see At-* 
 torney General v. Sidney Sussex College, 
 Cambridge, 34 Beav. 654. 
 
 2 Pickfbrd v. Hunter, 5 Sim. 122, 129; 
 Rattenbury v. Fenton, C. V. Coop. t. 
 Brough. 60. 
 
 3 Ld. Ked. 237; see Neafie v. Neafie, 7 
 John. Ch. 1; Stoiy Eq. I'l. § 791. 
 
 4 Senhouse v. Earl, 2 Ves. S. 450. 
 
 6 Wing V. Wing, 2 Eq. Ca. Ab. 71, 
 pi. 13. 
 
 6 Ld. Red. 239; Story Y,<\. PI. § 794. 
 
 ^ Anon., 3 Atk. 809; Kinsey v. Kinsey, 
 2 Ves. S. 577; but see Pearsef. Dobinson, 
 L. R. 1 Eq. 241, V. C. K. 
 
 8 Ibid. ; Charles v. Rowley, 2 Bro. P. 
 
 C. ed. Toml. 485; Story Eq. PL § 790; 
 Davoue v. Fanning, 4 John. Ch. 199. It 
 will not be allowed on the hearing unless 
 set up in the answer, or (if enrolled) 
 pleaded. Lyon v. Tallmadge, 14 John. 501. 
 A prayer in the answer, tliat i\\e, pleadings 
 ana proofs^ in a Conner suit, may be made 
 a part of the cause, does not present the 
 dtcrte ; and although it be copied in the 
 tran.script, it will not be regarded. Gal- 
 loway V. Hamilton, 1 Dana, 576. 
 
 '•• Ld. Red. 239; Kinsey v. Kinsey, 2 
 Ves. S. 577 n. 
 
 i« VVortley v. Birkhead, 3 Atk. 809: 2 
 Ves. S. 571; Lady Granville v. Ramsden, 
 Bunb. 56. 
 
 " 1 Ld. Red. 239.
 
 DIFFERENT GROUNDS OF PLEAS. 
 
 G61 
 
 As a plea of this kind proceeds upon the ground thfit the same 
 matter was in issue in the former suit, and as every plea that is set 
 up as a bar must be ad idem^ the plea should set forth so much of 
 the former bill and answer as will suffice to show that the same 
 point was then in issue, and should aver that the allegations as to 
 the title to relief were the same in the second bill as in the first ; ^ 
 and, therefore, where the defendant pleaded only that a bill was 
 brought for an account and a decree made, Lord Hardwicke con- 
 sidered the plea as defective.^ Whei'e the bill seeks to impeach 
 the decree on the ground of fi'aud, the alleged fi-aud must, as we 
 have seen, be negatived by aveiments in the plea, supported by 
 an answer fully denying the circumstances of fi-aud as to which 
 the defendant is interrogated.* But as the averments negativing 
 the charges of fraud are used merely to put the fact of fraud, as 
 alleged by the bill, in issue by the plea, they may be expressed in 
 the most general terms, provided such tenus are siifficient to put 
 the allegations of the bill fully in issue. The answer, however, 
 must be so full as to leave no doubt on the mind of the Court 
 that, if not controverted by evidence on the part of the plaintiff, 
 the fact of fi-aud could not be established.^ 
 
 In the case of a plea of a fonner decree, the plaintifi" should 
 obtain an order, on motion or petition of course, for an inquiry as 
 to the truth thereof; ® and if the fact is certified to be true, the 
 bill will be dismissed, unless the Court should otherwise order.'' 
 The plaintifi* may, however, apply to vary the certificate, and thus 
 bring on the matter to be argued before the Court.* He may also, 
 if he conceives the plea to be defective in point of form or other- 
 wise, independently of the mere truth of the fiict pleaded, set the 
 plea down to be arguesl, as in the case of pleas in general.^ 
 
 As the ground of the defence by j^lea of a decree signed and 
 enrolled is, that the matter has been already decided, a decree of 
 any Court of Equity, in its nature final, or made so by subsequent 
 order, iiiiiy be pleaded in Ijar of a new suit.^" 
 
 fully met and denied, it wiis held that the 
 ph'ii was bad. Allen r. liandolijh, 4 John. 
 Ch. 693. 
 
 6 Ord. XIV. 6. For forms of motion 
 and petition, see Vol. III. 
 
 ■^ Ld. Riid. 305; and sec .Tones v. Se- 
 put-ira, 1 Phil. K2, 84; 6 .lur. 1H3; Tarlc- 
 ton t'. IJarnes, 2 Keen, 632, G3,'>; Morgan 
 V. Morgan, 1 Atk. 53. 
 
 8 L'i. Red 305. 
 
 « Ibid. 
 
 1" Ld. Red 245; Fitzgerald v. Fitzgcr- 
 nld, 5 IJro. !'. (J. cd. Toml. 567; sec al.^o 
 .lones r. Nixon, Vounp;e, 35!); and see 
 Ord. XIV. 7, and ante, p 632, as to plea 
 of ponding «nit in anrither Court of Kquity. 
 See FcTL'usoti (I Miller, 5 11am. 460; Hughes 
 V. Ulakc, 6 Wheat. 453. 
 
 Cii. XV. § 2. 
 
 1 Per Lord Hardwicke, in (Jhilil w. Gih- 
 iion, 2 Atk. 603; ami see .Moss w. Anglo- 
 Egvptian Xav. Co., L. R. I. Ch. Ap. 108; 
 12 Jur. N. S. 13 L. C. 
 
 ■■^ Ladv Londonderry r. Haker, 8 Giff. 
 128; 7 Jur. N. S. 652; aflfd. ib. 811; 9 W. 
 R. 763 
 
 3 Child t'. Gihfon. rJti mp. ; Bunk of 
 Michigan i\ Williams, Ilurring. Ch. 219; 
 CatPs B. Loftus, 4 Monroe, 439. 
 
 < L.l. Red. 239. 
 
 <■' I,<1. Red 239; see rin/e, p. 660. Where 
 a Inll cliarged mi-irepresentation, coercion, 
 and fr.iU'l in prr)i'uring the- r lease of ii 
 debt, and a d-M'enlant put in a plea and 
 Answer, and in his plea in-isted on thf re- 
 Icise in l>ar. wi'h >uf ii itiiing the uUegi- 
 tion of fraud, thougii in the answer it waa 
 
 Answer in 
 support. 
 
 Plaintiff 
 must obtain 
 inquiry as to 
 truth of plea, 
 
 or set it down 
 for argu- 
 ment. 
 
 Decree of any 
 other Court 
 of Equity.
 
 G()2 
 
 PLEAS. 
 
 ("II. XV. 5 -2. 
 
 Averments. 
 
 Fines abol- 
 ish.'dhv3&4 
 Will. IV. c. 
 "4, § 2. 
 
 (2.) Common 
 recoverj". 
 
 Recoverieis 
 abolished hv 
 3 & 4 Will." 
 IV. c. 74, § 2. 
 
 Form of plea. 
 
 (3.) Judg- 
 ment of a 
 Court of 
 ordinary 
 jurisdiction: 
 
 A ]ilo.a in har of mat tors ol" rooord, or of matters in the nature 
 of" matters of record in some Court, not beinsf a Court of Equity, 
 may be: (1.) Fine; (2.) Recovery; (3.) Judgment at Law, or 
 Sentence of some other Court. 
 
 (1.) A fine is a record of tlie Court in whicli it has been hn'ied, 
 an<l, if levied on or betbre tlie 81st of ])ecember, 1833,^ is equally 
 good as a bar in Equity as it is at Common Law, provided it be 
 pleaded with proper averments.^ In a plea in Equity of a fine and 
 non-claim, the same strictness is required as at Law ; therefore, 
 where a defendant, instead of averring ])ositively that the party 
 levying the fine was actually seised, averred that he was seised, or 
 pretended to be seised, the plea was held to be bad.^ A plea of a 
 fine and non-claim can now only be made use of where the fine 
 has been levied on or before the 31st of December, 1833: the 3 & 
 4 Will. ly. c. 74, having abolished that species of assurance from 
 that (bite, and substituted, in its stead, a more simple form, by 
 deed enrolled in the High Court of Chancery, within six months 
 from the date thereof; and su(^h deed and enrolment may now be 
 pleaded, instead of a fine. 
 
 (2.) A common recovery duly suffered, like a fine, is a record of 
 the Court in which it has been suflfered ; and if it has been suffered 
 on or ]u-eviously to the 31st of December, 1833, such recovery may 
 be pleaded in Equity, as well as at Law, if the estate limited to 
 the plaintiff, or under which he claims, is thereby barred.* Since 
 the statute 3 & 4 Will. IV, c. 74, common recoveries can be no 
 longer suffered ; but where an estate tail has been barred, by the 
 execution of a deed enrolled in the Court of Chancery, according 
 to the provisions of that Act, such deed and enrolment may be 
 shown to the Court, by jilea, instead of a recovery. The form of 
 a ])lea of a recovery appears to be nearly the same in Equity as at 
 Law. In Attorney- General v. /Sutton,^ the suffering of the recov- 
 ery appears to have been averred in the following forai: "That 
 Thomas Sutton, the testator's nephew, being tenant in tail by the 
 will, had suffered a common recovery, and thereby barred the 
 charities." 
 
 (3.) The judgment of a Court of ordinary jurisdiction, is also a 
 matter of record, which may, in general, be plea<led in bar to a 
 suit in Chancery, provided such judgment has finally determined 
 the rights of the parties.^ Thus, a judgment of a Court of Com- 
 
 1 S-e 3 & 4 Will, IV. c. 74, § 2. 
 
 2 Ld. Hed. 251; Thvnne v. Cary, W. 
 Jones, 410; Salisbury v. Haggot, 1 Ch. 
 Ca. 278; 2 Swansr. 603. 610; Watkins v. 
 Srone, 2 S & S. 5C0, 573; Story v. Lord 
 Wind-or, 2 Atk. 630, 632; .see Storj' Kq. 
 PI. § 771 et seq. For form of such plea 
 see 2 Van Hey. 100. 
 
 s Story V Lord Windsor, 2 Atk. C30, 
 632; Dobson v. LeMdbi-ater, 13 Ve.s. 233. 
 
 4 Ld. Ked. 253; Attorney-General v. 
 Sutton, 1 r. Wms. 753. 
 
 6 1 1'. Wms. 754; 3 Uro. P. C. ed. TomL 
 75; I'lunkett v. Cayendish, 1 R & M 713, 
 718. 
 
 8 Ld. lied. 253; see Cammiinn v. Trap-
 
 DIFFERENT GROUNDS OF PLEAS. 
 
 GG3 
 
 mon Pleas in a writ of riglit,^ or a verdict and judgment entered 
 thereon in a Court of Common Law, have been held to be a good 
 bar in a Court of Equity, for the same matter.^ So it seems, that 
 a plea of a nonsuit, in an action of trover, has been allowed as a 
 good plea.^ 
 
 In Behrens v. Paxdi^^ a plea, that a verdict and judgment in 
 the Lord Mayor's Com-t had been obtained by the defendant 
 against the plaintiif, on the same matter in respect of which relief 
 was sought by the bill, was allowed by Lord Langdale M. R. on 
 the ground that the Lord Mayor's Court was a Court of competent 
 jurisdiction to decide the case; and, although tlie decision of the 
 Master of the Rolls was afterwards overruled by Lord Cottenham, 
 in JBehrens v. iSievektng,^ it was merely upon the ground of an 
 informality in the plea, in not sho^nug that the subject-matter of 
 the suit, in the Lord Mayor's Court, was the same, and that the 
 proceedings were taken for the same purpose. 
 
 It is not necessary that the Court, the judgment of which is 
 pleaded, should be a Court of Common Law ; the sentence of any 
 Court may be a proper defence by way of plea. Thus, it seems 
 that a sentence of a Court of Admiralty will, if properly pleaded, 
 be a good plea.® And so may a sentence of a Court of Probate ; 
 therefore, a will and probate, even in the common form, may be 
 pleaded to a bill by persons claiming as next of kin to a ]>erson 
 supposed to have died intestate." If fraud in obtaining the will is 
 alleged, that is not a sufficient equitable ground to' mipeach a |>ro- 
 bate : for the parties may resort to the Court of Pro1)ate, whicli is 
 competent to determine the question of fraud,^ unless indeed the 
 case be one in wliicli the fraud has not gone to the whole Avill, but 
 only to some jtarticuliir clause, or in whicli it has been practised to 
 oVitain the consent of the next of kin to the probate: in which 
 
 Ch. XV. § 2. 
 
 Courts of 
 Common 
 Law. 
 
 Lord Mayor': 
 Court. 
 
 Other Courts: 
 
 Court of 
 Admiraltj' 
 
 Court of 
 Probate ; 
 
 wliere fraud 
 aUeged. 
 
 hagan, 1 Saxton (N. J ), 28; Story Eq. PI. 
 
 t778, and note; Standish v. Parker, 2 
 ick. (2d ed ) 22. and notes, 1,2,3, and 
 casc.i cited ; Van Wydi r. Seward, 1 Kdw. 
 327. A ju(!((n)ent on the nieritw, which 
 will liJir any other s-iiit at Law on the same 
 caii.se of action, will also bar a suit in 
 Ch;inccrv on the same cau-e of action. 
 Hunt V.' Terril, 7 J. .1. Mnr-h. 68, 70. A 
 judfjnient on either a suecial venlict or ^n 
 demurrer f« evjijcnce has this etTect /Id'l. 
 
 1 Sidnev v. I'lrn-, cited Ld. Kcl. '^!^,4. 
 
 2 Wilcox r Sfui't. 1 Vern 77; Hhick v. 
 Klliot. I!ep. t. Kinch, 13; I'itt v. Hill, ih. 
 70; THmple ?•. Ladv HaltiMf,da«.s, j6. 27">; 
 Williams i\ Lee, 3 Atk. 223; anri for the 
 Plea in that case, Hf-e H'-ames on I'leas, 
 337. I'or the eflcct of a judiiment Mt Law, 
 when piven in evidence in a suit in Ki|iiitv, 
 Bee I'earce r. Crav, 2 Y. & C C. ('. 322, 
 S'iH; I'rotheroe r. Forman, 2 Swaii.st. 227, 
 
 231; Harrison v. Nettleshin, 2 JL &. K. 
 423, 425. 
 
 3 Wilcox V. Sturt, 1 Vern. 77. 
 
 ■* 1 Keen, 4r,6, 4G3. 
 
 ''' 2 M. & C. 602, 003. 
 
 " Parkinson v. Lecras, cited Ld. Ked. 
 257. 
 
 7 Jnuncy V. Sealey, 1 Vern 397; Ld. 
 Ked. 257; see also Penvill v. Luscombe, 2 
 .1. & W. 201, 203; Harrs v. Jackson, 1 
 Phil. 5S2; t» .lur. 600; 1 Y. & C. C. C. 
 GS5, 596; 7 .hir. 54. 
 
 * Ld. lied. 257; Archer r. Mosse. 2 
 Vern. 8; Nelson v. Oldfield, ib. 76; At- 
 tornev-iJeneral I'. Pydcr. 2 Ch I. Ca. 178; 
 Plume r. liejile, IP. Wms. 3SK; Sfe- 
 I>heiiton 1'. (Janliner, 2 I'. Wins. 286; 
 P.cniiet r. Vadc, 2 Atk. 324; Kcrrick r. 
 Pratisl.y, 7 Un,. 1*. C. ed. Toinl. 437; 
 Meiidows »'. Duchess of Kinjrsti'U, And). 
 756, 761; (;ri(riths v. Hamilton, 12 Ve». 
 2118, 307; Story Eq. PI. § 782.
 
 GG4 
 
 PLEAS. 
 
 Cii. XV. 5 '2. 
 
 Forvitrn 
 probate. 
 
 Decree of 
 the Irish 
 Chancery, 
 after issue 
 (k'visavit vet 
 non. 
 
 Sentence of 
 a Ibreign 
 Court, 
 
 havinfr full 
 jurisdiction; 
 
 unless equi- 
 table circum- 
 stances 
 against it ; 
 
 where no 
 equitable 
 grounds to 
 avoid it. 
 
 oasos the Court lias l;iitl lioltl of tlieso cirenmstanccs to (loclavo tlie 
 oxei'utor a tnistco for the next of kiii.^ Where there are no such 
 eireunistanees in the case, tlie probate of tlie will is a clear bar to 
 a demand of personal estate.^ And where a testator died in a 
 foreiiiii country, anil left no goods in any other country, probate 
 of his will, according to the law of that country, was determined 
 to be a sutticient defence against an administrator appointed in 
 England : * but such foreign j)robate Avill not do, if there are any 
 goods in England : for in that case the will m\ist be proved here. 
 So also a decree of the Court of Chancery in Ireland, after a ver- 
 dict upon an issu.e devisavit vel non^ does not determine the valid- 
 ity or invalidity of the will, so far as it relates to lands in England, 
 and cannot be jileaded in bar to a suit here.^ It is not, indeed, 
 necessary in every case, that the Court whose sentence is pleaded 
 should be an English Court: the sentence of a foreign Court 
 may be a proper defence by way of ])lea ; but the plea must show 
 that the Court pronouncing the sentence had full jurisdiction to 
 determine the I'ights of the parties ;^ that the subjects in question, 
 and the issue, were the same : that the cause was decided on the 
 merits, and that the sentence pleaded was final, and not an inter- 
 locutory proceeding.^ 
 
 Although a final judgment of a Court of competent jurisdiction, 
 Avhether in this or any other country, will, as we have seen, operate 
 as a bar to a claim for the same matter in a Court of Equity, yet 
 if, from any circumstance, such as fraud, mistake, or surj)rise, it is 
 against conscience that the defendant should avail himself of such 
 a bar, a Court of Equity will interfere to set it aside.'' Where, 
 however, a bill for that purpose is filed, the defendant may plead 
 the judgment in bar, negativing by averments, and (if interrogated 
 as to them) denying by answer, the equitable circumstances alleged 
 in the bill, U2)on which the judgment is sought to be imj)eached. 
 
 It is to be observed, that where a bill itself states a sentence of 
 another Court, without alleging any equitable matter to avoid it, 
 
 1 Ld. Red. 257; Biirneslv v. Powel, 1 
 Ve^. S. 284, 28/'; Marriot v. Harriot, 
 1 Stran. 666; Jleadows v. Duchess of 
 Kingston, Amb. 762, 763; Allen v. 
 M'Plierson, 1 Phil. 133, 143; Gingell v. 
 Home, 9 Sim. 5.39, 548; Hindson r. Weafh- 
 erell, 5 De G., M. & G. 301; 18 ,Jur. 499; 
 1 Sm. & G. 604; Dimes v. Steinberg, 2 Sm. 
 & G. 75. 
 
 2 Ld. Red. 258. 
 
 8 .FauMcy v. Sealev, 1 Vem. 397. 
 
 < Uoyse V. Colclouah, 1 K. & .1. 124. 
 
 5 Ld" Red. 255; Newland r. Horseman, 
 1 Wn. 21; 2 Ch. Ca. 74; Burrows r. 
 Jemineau, Sel. Ca. in Clia. 69; 1 Dick. 
 48; Gitpe v. Bulkeley, 3 Atk. 215; White 
 V. Hall, 12 Ves. 321, 324; see aWo Hen- 
 derson V. Henderson, 3 Hare, 100, 115; 
 
 Farquharson v. Seton, 5 Russ. 45, 63 ; Mar- 
 quis of Hreadalbane v. Chandos, 2 M. & 
 C. 711,732; Storv Eq. PI. § 783; Story 
 Confl. Laws, 584-618. 
 
 6 (iarcias v. Ricaido, 14 Sim. 265, 271; 
 8 Jur. 1037; S. C. on appeal, nom. Ri- 
 cardo v. Gnrcias, 12 CI. & Fin .368; 9 Jur. 
 1019; Samuda v. Kiirt:id<i,3 Bro. (!. C. 70, 
 72; Ostell v. Lepjige, 2 De G., M. & G. 
 892, 895; 5 De G. & S. 95; 16 .lur. 404; 
 Hunter t'. Stewart, 8 Jur. N. 8 317; 10 
 W. K. 176, L. C. ; sec also Keimers v. 
 Druce, 23 I5eav. 145; 3 Jur. N. S. 147; 2 
 Seton (3d Eng ed.), 882. 
 
 ■^ As to the circuinstnnces which will be 
 suflieieiit to impe:ich a verdict and judg- 
 ment in Equity, see Wilhams v. Lee, 3 
 Atk. 223; Samuda v. Furtado, uhi sup.
 
 DIFFERENT GROUNDS OF PLEAS. 
 
 665 
 
 a plea of that sentence will not hold : because it brings forward no 
 new matter, and the defendant ought to have demurred.^ Where 
 a bill was filed by an executor, who had assented to a specific 
 bequest, to set aside a verdict and judgment in trover, obtained by 
 the specific legatee, on the ground that trover would not lie for a 
 legacy, and that the damages given by the jury were excessive, 
 and the defendant pleaded the verdict and judgment in bar, the 
 plea was allowed ; ^ but it may be doubted whether the defence 
 ought not to have been by demurrer, as there was no allegation in 
 the bill requiring averment in support of the plea.^ Upon this 
 principle, where the probate of a will is impeached on the ground 
 of fi-aud used in obtaining it, the defence should be by demurrer : 
 because fraud not being a sufl[icient equitable ground to impeach 
 the probate,* the mere setting up of a probate, which appears upon 
 the bill is not a sufficient averment of a new fact to support a 
 plea. 
 
 3. Pleas in bar of matter in pais only are, principally : (1.) A 
 stated account ; (2.) A release ; (8.) An award; (4.) An agree- 
 ment ; (5.) A title founded, either on adverse possession, or on a 
 will, or conveyance, or other instrument affecting the right of the 
 parties ; (6.) A purchase for valuable consideration, without notice 
 of the plaintiff's title. 
 
 (1.) A plea of a stated account is a good bar to a bill for an 
 account ; ^ for there is no rule more strictly adhered to in this 
 Court than that, when a defendant sets forth a stated account, he 
 shall not be oT)liged to go upon a general one.® 
 
 In order to supi»ort a plea of a stated account, it must be shown 
 to have been final ; it is not suflftcient to allege that there has been 
 a dividend made between the parties, which implied a settlement; 
 for a divi<lend may be made upon a supposition that the estate 
 \s-\]\ amount to so much, but may be still subject to an account 
 being statecl afterwards.'' A plea of a stated account must show 
 that it was in writing, and likewise the balance in writing, or at 
 least set forth what the balance was.* It does not, however, seem 
 to be necessary to aver, that the account was settled between the 
 
 Cii. XV. § 2. 
 
 3. Pleas of 
 matters 
 in pais: 
 
 (1.) Stated 
 account: 
 
 must be final ; 
 
 and in vsrit- 
 ing; 
 
 1 I,d Rod. 255. 
 
 2 Williams i\ F.ee, 3 Atk. 223. 
 8 I.. I. lied. 255. 
 
 * Ante. p. 612. 
 
 6 Ld. Hcd 25!i; I)awHon v. Dawson, 1 
 Atk. 1; Cliapfi'-dchiine r. I)echpniiux. 4 
 Crao'di, 30(i; sci; tin; form of a i)li;n of ii 
 otafMl a'T.iiint. Willis, 5')0. What will 
 COliHtitute a ^t.ileil account in the seiii-c of 
 a (lourt of Ivjiijiy. i» in <-o!ne ine:i«ure de- 
 pendent on the ciroiimsitancc'" of the case. 
 1 Story K(|. .Inr. § 52*".. A nloted account 
 properly exij-tn only where the accounts 
 have been examined, and the balance ad- 
 
 mitted as the true balnnce between the 
 parties, without Imviuf; been paid. When 
 the biilance thus admitted is ])aiil, the ac- 
 coimt is deemed a setlU'i account. Kndo 
 V. ( ^alchain. 1 Yoimj^e. 30C ; Capon v. 
 Miles, 13 Price, 7C7 ; Weed v. Small, 7 
 rai^c, 573; 1 Story Kq. IM. § 798. 
 
 '• Stunner i'. rhori)o. 2 Atk. 1; Coop. 
 r,f| I'l. 277; s(!e also Cannicliaol v. Car- 
 michuel, 2 I'hill. 101, 104; 10 .lur. 908; 1 
 Storv Kq. Jur. § 527. 
 
 "! i)awson V. Dawson, 1 Atk. 1. 
 
 8 Bulk V Brown, 2 Atk. 3'JO.
 
 1)06 
 
 PLEAS. 
 
 (11. \V. 5 
 
 and is no bar 
 to disi'overy, 
 as a protec- 
 tion ajjaiust 
 strangers. 
 General 
 release, not 
 under seal. 
 
 Stated 
 
 aeeoiiut need 
 not be 
 signed ; 
 
 but mere 
 delivery of 
 account 
 will not be 
 .■^utlicient. 
 
 Rule among 
 merchants. 
 
 Stated 
 
 account must 
 be averred 
 to be just 
 and true. 
 
 Form of plea. 
 
 jKU'tios Upon a minuto invcstipitioii ol' items: a e;(Mior:vl agreement 
 or ooiupositioii will hv suiliciont;^ nor will the circumstance of 
 the account ajipcaring to have been setlletl, errors excepted, be a 
 sufficient ground to open a settled account, unless specific errors 
 are jiointed out in tlie bill.'- 
 
 A stated account will not operate as a bar to discovery, where 
 the jilaintitt' is entitled to such discovery, not for the purpose of 
 any proceeding between him and the defendant, but to enable him 
 to protect himself from claims by other people.* A general release 
 of all demands, not under seal, may be pleaded as a stated 
 account.* 
 
 It is not essential, in order to the validity of a stated account as 
 a bar, that it should have been signed by the parties;'' it Avill be 
 sufficient if an account has been delivered and acquiesced in for 
 a considerable length of time ; ® thus, Avhere there have been 
 mutual dealings between a merchant in England and a merchant 
 beyond sea, and an account is transmitted by one to the other : if 
 the person to whom it is sent keeps it by him for a length of time 
 without making any objection it will bind liim, and prevent him 
 opening the account afterwards.'^ The mere delivery of an ac- 
 count, however, will not constitute a stated account, without some 
 evidence of acquiescence which may affi^rd sufficient legal pre- 
 sumption of a settlement.^ It has been said that, among mer- 
 chants, it is looked upon as an allowance of an account current, if 
 the merchant who receives it does not object to it in a second or 
 a third post ; ® but in Tickel v. /Short,^^ Lord Hardwicke said, that 
 if one merchant sends an account to another in a diffiirent country, 
 on which a balance is made due to himself, and the other keeps it 
 by him about two years without objection, the rule of this Court, 
 as well as of merchants, is, that it is considered as a stated account. 
 
 A defendant, pleading a stated account, must, whether error or 
 fraud be charged or not, aver that the stated account is just and 
 true, to the best of his knowledge and belief; " but it is not neces- 
 sary that the account should be annexed by way of schedule : for 
 the plea is sufficient, in case it be a fair account between the par- 
 
 1 Sewell V. Bridge, 1 Ves. S. 297. 
 
 2 Taylor v. Hayiiii, 2 Bro. C. C. 310; 
 1 Cox, 435; Johnson v. Curtis, 3 Bro. G. 
 C. 266. 
 
 8 Clarke v. Earl of Ormonde, Jac. 116. 
 
 4 Gilb For. Rom. 57. 
 
 6 Storv i:.). Jur. § 526. 
 
 6 Mur'ray v. loland, 3 .John. Ch 569; 
 Freeland v. Heron, 7 Craneh, 147; 1 Story 
 Eq. Jur. § 526; Consequa )'. Faniiinir, 3 
 John. Gh. 5fe7; Wilde v. Jenkins, 4 Paige, 
 481. In regard to acquie.scence in stated 
 accounts, altiiough it amounts to an admis- 
 sion, or presumption of their correctness, 
 it by no means establishes the fact of their 
 
 liaving been settled, even though the ac- 
 quiescence has been for a considerable 
 time. Tliere must be other irifirediuiits in 
 the case to justitV the conclusion "f a .set- 
 tlement. 1 Story Kq. Jur. § 528; Ld. 
 Glancarty r. Latouclie, 1 B. & Beat. 428; 
 Irviiitr V. Young, 1 S & S. 333. 
 
 7 Willis V. Jernegan, 2 Atk. 2-52. 
 
 8 Irvine v. Young, 1 S. & S. 333. 
 Slierm:in v. Sherman, 2 Vern. 276. 
 
 W 2 Ves. S. 2.39. 
 
 11 Anon, 3 Atk. 70; Daniels y. Tagerart, 
 1 Gill & J. 311; Schwarz v. Wendell, 
 Uaning. Gh. 395.
 
 DIFFERENT GROUNDS OF PLEAS. 
 
 667 
 
 ties.^ Wliere, however, n bill impeaches the account, and alleges 
 that the plaintiff has no countei-part of it, and it is required to be 
 set forth, the defendant must annex a copy of the account to his 
 answer by way of schedule, so that, if there are errors upon the 
 face of it the plaintiff may have an opportunity of pointing tliem out.'^ 
 
 The delivery up of vouchers is an affirmation tliat the account 
 between the parties was a stated one ; and where such a transac- 
 tion has taken place, it should be averred in the plea.^ 
 
 It has been before stated, that the effect of pleading a stated 
 account to a mere bill for an account, is to com])el the plaintiff to 
 amend his bill, and to charge either fraud or particular errors ; * it 
 remains only to observe, that if specific errors or frauds are charged 
 in the bill, for the purpose of impeaching the account, they must 
 be denied by averments in the plea, as well as by the answer in 
 support of the plea, if the defendant is inteiTogated as to them.^ 
 
 It may be observed here, that when fraud is proved to have 
 taken place in a settlement of account, it will be a sufficient ground 
 to open the whole account," and this has been done by the Court, 
 though the account had been settled for tAventy-three years, and 
 the party who was guilty of the fraud was dead.'' 
 
 Upon the same ])rinciple, where an account has been settled 
 between an attorney and his client, and it ap])ears upon the face of 
 the account that the attorney lias not given that credit, and pro- 
 <luced to his client that state of his affairs which he Avas entitled 
 to have, the Court will not permit such an account to stand.* The 
 same rule will a])ply to cases of accounts settled between principal 
 and agent,^ guardian and ward,^"^ and trustee and cestui que trust}'^ 
 
 Ch. XV. § 2. 
 
 Delivery up 
 of vouchers, 
 to be averred. 
 
 Effect of 
 pleading a 
 stated 
 account. 
 
 Where fraud 
 is proved. 
 
 In accounts 
 between 
 attorney and 
 client, 
 
 principal and 
 agent, &c. 
 
 1 Hankev v. Simpson, 3 Atk. 308. 
 
 2 HaiikeV v. Simpson. 3 Atk. 303. 
 
 8 \A. He'd. 2G0; Willis v Jerncgan, 2 
 Atk. 252; Clarke v. Ivirl of Ormoiide, .Inc. 
 IIG. Hut the delivering up of vouchers 
 on a settlement of accounts. i< not neces- 
 sary. Meeker f. Marsh, 1 Saxton (N. J.), 
 
 \m. 
 
 < Anle^ p. 371 ; Weed v. Smiill, 7 Paige, 
 573; lJri)wn v. Van Dyke, 4 Halst. Cii. 
 (N. J.)7!)5. 
 
 6 l,d. Red. 201; Phelps v. Sproulc. 1 
 M. ^: K. 231, 230; I'arker v. Alcnck. 1 Y. 
 & .). 432; Cliadwirk v. liioadwood, 3 
 IJeav. .'J30, .'i40; 5 .Jur. 3.5ti. 
 
 See 1 Stoiy Kij. .Jur. §523; Burrow 
 «. Kliitu-I>in<ler, ] .lolin. ('li. 5-'>0; Story 
 K(|. ri. §§ SOI, 802; Itaker v. Hiddic, 1 
 Uald. 3!»4; IJiiinliriilge v VVilcocks, ih. 
 630, 540. WliiTe I here has b(;pn fraud a 
 I'ourt of Kijiiity will open and examiue 
 accounts afier any length of time, even 
 though the |iervc)ii committing the fraud 
 be dead. IJotifeiir w. Wcymaii, 1 M'Cord, 
 rii. Kil. A ninninc acciimif closed liy a 
 bund may br ojiem-d by a ('mirl of j-jitiity 
 on the j^roiirid of Irani, (ir^v r. \V iisli- 
 ington, Cook, 321. If in a bill of E(juity 
 
 to open a settled account, the facts al- 
 leged and proved should show fraud actual 
 or constructive, in the settlement, the 
 I)laintiff will be entitled to relief, not- 
 withstnnding the bill contains no direct 
 averment of frMud. Farn.'im v. Brooks, 
 9 Pick. 212, 
 
 7 Vernon v. Vuudrv, 2 Atk. 119. 
 
 8 Matthews v. Wiillw.vn, 4 Ves. 118, 
 125; Middleditch v. Sharland, 5 Sum- 
 ner's Ves. 87, Perkins's note («), snd 
 cases cited; Hickson v. Aylwanl, 3 Moll. 
 1; Farnam v. IJro'iks, f) Pick. 212; 1 Story 
 K(|. .Itir. § 402, aiul notes; Pickering v. 
 Pickering, 2 Jleav 31; Graham i'. David- 
 son, 2 Dev. & Hilt. Eq. 155; l)e Mont- 
 morency V. Devereux, !)ru. & W. 119. 
 
 " Heiiumont i;. Holtliee, 5 Ves. 485, 494; 
 7 Ve". 599, 001; 11 Ves. 358; Clarke v. 
 Tipping, 9 Heav. 284, 287, where the fact 
 afipeartMl from ndmis-<ions in tiio answer. 
 
 1" Alll'rev r. Alllrcv. 10 Heav. 353. .'J57 ; 
 11 .lur. 981; 1 M'N.\Sc G. 87, 93; 13 .Iiir. 
 209; Coleman v. Mellersh, 2 M'N. & G. 
 309,315; and see Hrowneli r. Hrowncil, 
 2 J {p.. C. C. 02. 
 
 " Cljirke V. I'.arl of f)rmonde, .lac. 110. 
 As between trustee and c'i'j<(u> qut (rtwf,
 
 6G8 
 
 PLEAS. 
 
 Cii. XV. § 2. 
 
 Of surcharg- 
 ing; and 
 fals^ilyiug. 
 
 All the errors 
 need not be 
 proved at the 
 hearing. 
 
 Errors in law 
 or fact may 
 be shown. 
 
 Leave to 
 surcharge 
 and falsify 
 is mutual. 
 
 Tho o;isc\ liowovcM-, is dilll'ivnt, Avlioro errors or mistakes only are 
 shown to exist in the account : for there tlie account will not be 
 opened, but the ]r.\rty will be permitted merely to surcharge and 
 falsify it.^ This is an important distinction : because, where an 
 account is o))ened, the whole of it may be unravelled, and the par- 
 ties will not be bound by deductions agreed upon between them 
 on taking the former account ; ^ but where a party has liberty to 
 surcharge and falsify, the o?ii(s 2^^'ohancK is ahvays on the party 
 having the liberty : for the Court takes it as a stated account and 
 establishes it; but if the party can show an omission for which 
 there ought to be credit, it will be added (which is a surcharge), 
 or if any wi-ong charge is inserted it will be deducted (which is a 
 falsification).^ This, however, must be done by proof on his side.* 
 In some cases, Avhere the circumstances would justify opening the 
 account, the Court will only give leave to surcharge and flilsify, if 
 it is satisfied that it will in that manner best do justice between 
 the parties.^ 
 
 It is to be noticed here, that although a party seeking to open a 
 settled account, must sj)ecify the errors he insists upon," it is not 
 necessary that he should, at the hearing, prove all the errors speci- 
 fied in his bill.'' If he proves some of them, he entitles himself to 
 a decree, giving him liberty to surcharge and falsify.^ Where 
 parties are at liberty to surcharge and folsify, they are not confined 
 to mere errors of fact, but they may take advantage of errors in 
 Law ; ^ and where one party is allowed to surcharge and falsify, 
 the other may do so too.^° 
 
 the trustee cannot protect himself from 
 discovery of the vouchers, S. C. 
 
 1 Vernon v. Vauilrv, 2 Atk. 119; Brown 
 V. Van Dyke, 4 Iliilst. Ch. (N. J.) 795. The 
 burden of showing errors is on him who 
 receives an account without objection. 
 Baker r. Hidfile, 1 Bald. 394; Baihbridge 
 V. Wilcncks, ib. 536, 540; (Jhafipedelaine 
 V. Dechenaux, 4 CrRnch, 203; Lock v. 
 Armstrong, 2 Dev. & Bat. Eq. 147; Wilde 
 t'. Jenkins, 4 Paige, 481; Murray y. Tol- 
 land, 3 John Ch. 569; Honore v. Colmes- 
 nel, 1 J. J. Marsh. 417; Bull ck v. Bovd, 
 2 Edw. Ch. 293; Troup v. Ilaight, 1 Hojpk. 
 239; Browneli r. Biownell, 2 Bro. C. C. 
 (Perkins's ed.) 62, and notes. In the case 
 of transactions between trustee and cestui 
 que trust, or guardian and ward (Biownell 
 V. Browneli, 2 Bro. C. C. 62), or between 
 solicitor and client (Matthews v. Wall- 
 wyn. 4 Ves. 125), the Court allows a 
 greater latitude. 
 
 2 Osborne v. Williams, 18 Ves. 379, 
 382. 
 
 3 Pit V. Cholmondeley, 2 Ves. S. 565; 
 Heighington v. Crant, 1 Phil. 600. For an 
 explanation of the term.s surcharge and 
 faUify. see 1 Story Eq. Jur. § 525. 
 
 * Jlid. 
 
 6 Allfrey v. Allfrey, 1 M'N. & G. 87, 
 94; 13 Jur. 209. 
 
 <> Ante, p. 371. A general charge is 
 not sufficient, specific errors must be 
 pointed out. Calvit i;. Mnrkham, 3 How. 
 (Miss ) 343; Mebane v. Mebane, 1 Ired. 
 Eq. 403; De Montmorency v. Devereux, 1 
 I)ru. &. W. 119; Leaveraft j; Dempsev, 
 15 Wend. 83 ; Baker v. Biddle, 1 Bald. 
 394,418; Bainbridge V. Wilcox, ib. 536, 
 540; Consequii v. Fanning, 3 .John. Ch. 
 587; S. C. 17 John. 511; 1 Storv Eq. Jur. 
 §§ 523, 527; P.rownell v. Browneli, 2 Bro. 
 C. C (Perkins's ed ) 62, notes; Weed v. 
 Small, 7 Paige, 573; Hobart v. Andrews, 
 21 Pick. 576; Chappedelaine v. Deche- 
 naux, 4Cranch, 300; Bullock v. Bovd, 2 
 Edw. Ch. 293; Phillips v. Beld™, 2 Kdw. 
 Ch. 1 ; Sfoughton /■. Lynch, 2 John. Ch. 
 509; Story Eq. PI. § 809. 
 
 ' Anon., 2 Freem. 62; Chambers v. 
 Gold win, 5 Ves. 834, 837; Dawson ■!;. Daw- 
 son, 1 Atk. 1; Drew v. Power, 1 Sch. & 
 Lef. 192. 
 
 » Twogood V Swanston, 6 Ves. 485. 
 
 9 Hoberts v. Kuffin, 2 Alk. 112. 
 10 1 Mad. Ch. 144.
 
 DIFFERENT GROUNDS OF PLEAS, 
 
 669 
 
 It is to be remarked, ho-tt'ever, that although an admission by Cn. XV. § 2. 
 
 the defendant in the answer accompanying his plea, of an error in '^ y ■' 
 
 the stated account, may be sufficient evidence to induce the Court Where en-or 
 to open the account, the mere circumstance that the defendant, before suit. 
 after the account was settled, confessed that thei'e was an error in 
 the account, and before suit corrected it and paid over the 
 amount, is not a ground upon which the Court will make such a 
 decree.^ 
 
 (2.) If the plaintift^ or a person under whom he claims, has (2.) A release. 
 released the subject of his demands, the defendant may plead the 
 release in bar of the bill,^ whether executed before or after the 
 fiUug of the bill ; ^ and this will apply to a bill praying that the 
 release may be set aside : * in Avhich case, the defendant must deny 
 the equitable circumstances charged for the purpose of impeaching 
 the release, by averments in the plea, and also by the answer in 
 support of the jilea, if inteiTogated as to them.® 
 
 A release, however, to be an effectual bar to an account, must ^yij^j ;, ^ 
 be under seal : otherwise, it ought to be pleaded as a stated account good release. 
 only.® But although it is necessary that a release, when insisted 
 upon as such, should have been sealed and delivered,'^ there is no 
 autliority for saying that it must have been signed.^ It seems, 
 that where a person taken in execution on a judgment has been 
 discharged by his creditor's express order, such discharge, being a 
 release of the debt, may be pleaded in bar to a bill to have satis- 
 faction of the judgment.* 
 
 In a plea of release, the defendant must set out the consideration Yoxm of plea. 
 upon which it was made ; lor every release must be founded on 
 some consideration : otherwise fraud will be presumed.^" A plea 
 of a release, therefore, cannot extend to the discovery of the consid- 
 eration ; and if tliat is impeached by the bill, the plea must be 
 assisted by averments, covering the ground upon which the con- 
 sideration is so impeached ; " therefore Avhere there was a bill for 
 
 1 Davis p. Spurlinp, 1 R. & M. 64, 67. 
 
 2 L(l. Hed. 201; Bower v. Swudlin, 1 
 Atk. 2'j4; 'launion v. iViiler, C .Mnil. \W\ 
 Clarke ('. Karl ol'Ormoiiiii:!, Jac. ll(i;Koclie 
 «. Morf^ell, -2 Sell. & Let". 721. 
 
 8 Sergrovc v. Aluvhcw, 2 M'N & G. 97, 
 BU; 14 .lur 1.08. 
 * L<1. Kfd. 201. 
 
 6 L.I. Red. 201, n.; IJoy.l i-. Smith, 1 
 Anst. 20H; Krceland /'. .lohiisoii, ib. 270; 
 Walter /•. (;ianvi!le, .', Hro. I*. C. e.i. Toiiii. 
 60.0; I'tocher. Mor>,'ell, 2 Sch. & Let". 727; 
 SaiiderB V. Kinfj, Mad. 01,64, cited 2 S. 
 & S. 277; nee al.so I'arker r. Alcock, 1 Y. 
 & J. 4;J2. 
 
 « l.d. Ked. 20.3. 
 
 7 The plea should .state that the release 
 WHg under seal; hut this does not seem to 
 be indispensahie. I'lieips v. Sproulc, 1 M. 
 & K. 231, 2.i6. 
 
 8 Taunton v. I'epler, 6 Mad. 166. 
 
 9 Beanies on Pleas, 221; Beatuiff v. 
 Gardiner, 2 Eq. Ca. Ab. 73, PI. 20. 
 
 m Ld. Red. 261 ; Roche r. Morgell, vbi 
 sup. A plea of release to a hill for an ac- 
 count is iusuliicieiit, uidess it sets out hy 
 way ofaveinient the accounts wiiich form 
 its consideration. Brooks v. Sutton. L. R. 
 5 Kq. 361. 
 
 11 Ld. Red. 261, 262. Story Eq. PI. §§ 
 790, 797. Where the consideration lor a 
 release is the general set I lenient of ac- 
 counts, and such .settlement is impeached 
 in the l)ill, this must be met by a plea, and 
 he supported by an answer deiiyiiif; tlie 
 imputations charged in tlie hill. I'lirker 
 V. Alcock, 1 V.& J. 432; I'ish f. Miller, 6 
 l'ait;e, 2r. ; Allen i'. Randolpli, 4.lohii Oh. 
 693; Bolton v. Gardner, 3 TaiRe, 273 j 
 Storv V.n. PI. § 797; I'eck v. Burgess, 
 Walk. Ch. 486.
 
 670 
 
 PLEAS. 
 
 Cii. XV. 5 -2. 
 
 Parol agree- 
 ment to 
 waive all 
 
 accounts. 
 
 (3.) An 
 award : 
 
 WTiere the 
 matters in the 
 bill were 
 referred after 
 bill filed. 
 
 Covenant or 
 agreement to 
 refer to 
 arbitration 
 cannot be 
 pleaded. 
 
 nn account and a discovovy of (lcaliM<2:s between the parties, to 
 w liicli a release was jileaded, and it ai)i»eared tliat tlie release was 
 founded on an account of those dealing.^ made iij), Lord Ilurdwicke 
 held it to be bad : because it extended to a discovery of those 
 ile.ilings, and of the account so made up.^ 
 
 In the case of JJroion v. Perkins^^ to a bill, by the executors of 
 a deceased ])artncr, for an account of the dealings and transactions 
 of a jiartnership, the defendant pleaded a parol agreement between 
 himself and the testator, to the eiiect that all accounts between 
 them should be waived. Sir James Wigram V. C. seemed to be 
 of opinion, that such a plea might be a good defence to a bill 
 for an account ; but he was of opinion, upon the construction of 
 the agreement in the case before him, that it must be understood 
 as imjiorting that the defendant took upon himself the liabilities 
 of the partnership ; and he held the plea bad : because it was not 
 supported by negative averments, showing that the plaintiff's 
 testator's estate was discharged from all liability in respect of the 
 partnershij). 
 
 (3.) An award may be pleaded in bar to a bill, which seeks to 
 disturb the matter submitted to arbitration.^ It may likewise be 
 pleaded to a bill to set aside the award and open the account ; and 
 it is not only a good defence to the merits of the case, but likewise 
 to the discovery sought by the bill.^ 
 
 It seems doubtful whether an award, made under an agreement, 
 entered into after the bill has been filed, to refer the matter of the 
 suit to arbitration, can be set up in bar to the bill by a plea, in the 
 nature of a plea puis darrein continuance at Law ; the object in 
 view can, however, be much more effectually obtained by an ap- 
 plication to stay proceedings in the cause. ^ 
 
 Although an award duly made will be a good plea in bar to a 
 bill, for the matters concluded by it, a covenant or agreement to 
 refer disiputes to arbitration, as it cannot be made the subject of a 
 bill for a sj)ecific performance,® cannot be pleaded in bar to a bill 
 
 1 Salkeld ?;. Science, 2 Ves.S. 107, 108; 
 Roche V. Morf^ell, ubisup. 
 
 2 1 Hare, 0t>4, 569; 6 .Jur. 727. 
 
 3 Titli-nson v. Peat, 3 Atk. 529; Far- 
 ringtoii V. Chute, 1 Vern. 72. As to the 
 jurisdiction oftlie Court over awards, see 
 Harding v. Wickhani, 2 J. «Si H. 676: 
 Smith V. Whitniore, 10 Jur. N. S. 65; 12 
 W.K. 244, V.C. VV.; lOJur. N. S. 1190; 13 
 W. K. 2, L. J.J.; 2 De G., J. & S. 297; 
 Wakefiehl v. LJanellv JJailwav & Dock 
 Co.. 3 De G., J & S. 11 ; 11 .luf. N. S. 456; 
 RusSfll on Arbitration, I'art III, (Jiiap. XI. 
 ante, p. 005. An award coii.stitules no 
 valid defence unless it cleiirly appears 
 that the .><uliject-niatter of the .'•uit was 
 witnin the award. Davison v. Jolinson, 1 
 C. E. Green (N. J.), 112. 
 
 * Ld. Red. 260 ; Tittenson v. Peat, ubi 
 stip. 
 
 5 Kowe V. Wood, IJ. & W. 315, 334, 
 337; 2 Pligh, 505; see also Dryden v. Rob- 
 inson, 2 S & S. 529, the marginal note of 
 which case is incorrect. 
 
 6 Piice V, Williams, cited 6 Ves. 818; 
 Ager V. Macklew, 2 S. & S. 418; Earl of 
 Mexborougli, v. Hower, 7 Heav. 127; Tat- 
 ter-all /;. Uroote, 2 15. & 1'. 131; Copper 
 V. Wells, Saxton (N. J.), 10; Darbey v. 
 Whilaker, 4 Drew. 134; jNlarch v. Eastern 
 Railroad, 40 N. II. 571; Smithy. Boston, 
 C. & AI. R.K., 36 N. II. 487; King v. 
 Howard, 27 Miss. 21. No mere agreement 
 to refer a controversy to arbitration can 
 oust the proper courts of justice of their
 
 DIFFERENT GROUNDS OF PLEAS. 
 
 671 
 
 brought in consequence of such differences ; ^ and where a bill is 
 filed in respect of matters agi-eed to be referred to ai'bitration, the 
 proper course is for the defendant, after appearance, but before 
 plea or answer, to apply to the Court to stay the proceedings in 
 the suit.^ 
 
 If the bill impeach the award upon grounds of fraud, corrup- 
 tion, or mistake, or for any other reason, such statements must be 
 denied by averments in the plea, and (if interrogated to) by 
 answer in supj^ort of it.^ 
 
 We have already had occasion to observe, that arbitrators may 
 be made parties to a bill, to set aside an award which is impeached 
 on the ground of gross misconduct on their parts.^ In such a case, 
 they may plead the award in bar of all that part of the bill which 
 seeks a discovery of their motives in making the award ; but, they 
 must, if charged with corruption or partiality, support the plea by 
 avennents, denyhig such charges, and showing themselves incor- 
 rujit and impartial, and (if interrogated) they must also deny them 
 by answer.^ 
 
 (4.) It has been stated above, that an agreement or covenant to 
 refer matters in dispute to arbitratoi's cannot be pleaded in bar to 
 a bill, unless there has been an arbitration and award consequent 
 upon it. The reason of this is, that such an agreement is execu- 
 tory : and an executory agreement is a cause of action only, and 
 cannot be pleaded in bar to another cause of action.® Where an 
 agreement is final, and settles the whole matter, the case is differ- 
 ent ; therefore, where an administratrix, who was a defendant in a 
 bill for an account and distribution, jjleaded an inventory duly 
 
 Ch. XV. § 2. 
 
 Motion to 
 stay, under 
 Common 
 Law Proce- 
 dure Act, 
 1854. 
 
 Negative 
 averments 
 and answer. 
 
 When arbi- 
 trators made 
 parties. 
 
 jurisdiction of the case. Contee v. Daw- 
 son, 2 Hlaiid, 264; see also Allegre v. 
 Marvliind Ins. Co., 6 Ilarr. & J. 408; 
 Kaixliill V. Chesapeake, &c.. Canal Co., 
 
 1 Harring. 2.34; Gray v. Wilson, 4 Watts, 
 39; .Miles «. Stanley^ 1 .Miles, 418; Stone 
 V. Dennis, 3 Porter, 231; Story, Partner- 
 ship, § 21.1, iind notes; Storj- Ii(|. I'l. 
 § 8U4 ; Tobey v. County o( Bristol, 3 Story, 
 bOO. 
 
 1 Ld. Red. 264; WellinRton tJ. MHckin- 
 to»h, 2 Atk. M'.), 670; Michell v. Harris, 
 4 IJro C. C. 311,315; 2 Ves. .1. 120, 130; 
 Sattcrley v. KoOinson, cited 4 Bro. C. C. 
 316, n ; Street r. r{igl)y, 6 Ves. 815, 817, 
 overruling ilalfiiidi; v. Kenning, 2 Bro. 
 C- C. 336; and see Kanpcr i". Great West- 
 ern liailway Company, 5 H. L. Ca. 72; 18 
 Jur. 7U5; .^cdtt 1-. Avery, 5 II. L. Ca 843; 
 2Jur. N. S. 815; .Scolt v. Curiioratioii of 
 Liverpool, 1 IJid'. 216; 4 .Jur. N. S. 402; 
 
 2 Det;. cS: J. 324; 5 .lur. N. S. 106; lioper 
 V. Lei don, 1 E. & K. 825: 5 .lur. N S. 
 491; Ilorton v. Saver, 4 H. & N. 643; 
 6 Jur. N. S. 9>>9; Cooke v. Cooke, L. It. 
 4Eq. 87; Henrick ». Biair, IJohn. CI), lol; 
 
 Shepard v. Merrill, 2 .lohn. Ch. 27C; Un- 
 derbill V. Van Cortlandt, 2 John. Ch. 339; 
 Bouck V. Wilber, 4 John. Ch. 405 ; Tappin v. 
 Heath, 1 I'aige, 293; Ciinipbell v. Western 
 3 id. 124; l-'itzpatrick c. Smith, 1 Desaus. 
 245; Atwyn v. Perkins, 3 Desaus. 297; 
 Shernian i". Heale, iWasli. 11: I'leasants i'. 
 Kos«, 1 Wash. 156; M..rrisi'. Koss, 2 Hen. 
 & M. 171, 408; Mitcliell v. Harris, 2 Sum- 
 ner's Ves. 129, notes (e) and [d), and 
 cases cited; Tobey «. County of Bristol,- 3 
 Story, 800, 819 et seq. 
 
 '^ (Jnmnioii Law Procedure Act, 1854 
 (17 & 18 V'ic. 12.5), § 11, post. Chap. XLV. 
 HOilutory Jurisdiclion. For Ibrm of notice 
 of motion, see Vol III. 
 
 8 Ld. Ke<i. 261; Coop. Eq. PI. 280; 
 Benmes on Pleas, 231 ; Story Eq. PI. § 803; 
 and see (inte, p. 614. 
 
 ■• Ante, p. 297'; Paillev v. Lincoln Wa- 
 terworks Company, 2 il'.N. i^- (i. 68, 
 71 ; 14 Jur. 299; Ponsford v. Swaine, 1 J. 
 & H. 433. 
 
 ''Aiilc, p. 297. 
 
 c Kowc V. Wood. 1 J. & W. 315,344. 
 Wood V. Kowc, 2 Bligh, 696. 
 
 (4.) An 
 agreement : 
 
 must be final.
 
 672 
 
 PLEAS. 
 
 Ch. XV. § J. 
 
 Averments. 
 
 Agrrcement, 
 
 containing 
 
 executory 
 
 clauses, 
 
 cannot be 
 
 pleaded. 
 
 (5.) Title: 
 
 Adverse pos- 
 session : 
 
 Adverse pos- 
 session will 
 bar. 
 
 General alle- 
 gation of dis- 
 abilities will 
 not invalidate 
 plea. 
 
 takiMi ;iii(l :i]>itrovo(l, .'iiid au agrcoiiioiit (ouikIihI thereon, the plea 
 uas allowed." It is to be observed, that au agreement to put 
 an end to a suit must not be final only as between the parties 
 to the bill to "whieh it is ])leaded, but it must be final as to all 
 the ]i:iities to the suit eompromised by it. It", therefore, an agree- 
 ment be made subsequent to the filing of a bill, between the 
 parties to the suit and other parties, for the purpose of putting an 
 end to the ])roceedings in the suit, and for other ])urposes, it can- 
 not be pleaded in bar to the bill by one of the i)arties only ; at all 
 CAents, if it is so pleaded, it must contain averments that all the 
 conditions of the agreement have been performed, or from circum- 
 stances could not be performed, and that the other parties not 
 joining in the plea are ready to jierform the agreement; indeed, 
 all the circumstances by which such an agreement is aifected, 
 should be noticed in the averments. And where an agreement of 
 this sort, which has been entered into for the purpose of putting 
 an end to a suit, contains a great many stipulations and clauses 
 which are executory, it can scarcely be considered a fit subject for 
 a plea.- 
 
 (5.) If the defendant's title be paramount to the plaintiff's, he 
 may plead it in bar. ^ A plea of this nature is called a plea of title ; 
 and a title so pleaded will, generally speaking, be founded either 
 on a long peaceable possession by the defendant, and those under 
 whom he claims ; on a will ; or on a conveyance.* 
 
 As, at Law, length of time raises a presumption against claims 
 otherwise most clearly made out, so, in Equity, a long and peace- 
 able possession may be j^leaded in bar to the relief; thus, an un- 
 disturbed i^ossession of sixty years or more, was long ago held to 
 be a good subject of plea.*^ It appears to be settled, that where 
 there has been adverse possession, not accounted for by some disa- 
 bility, such as coverture, or infancj', a Court of E(puty will not 
 interfere; and when a title is so stated in a bill, that there apj)ears 
 to have been a possession adverse to it of above twenty years, 
 without any allegation of disability, the defendant may demur ; 
 but, where the title is not so stated, the defendant must plead the 
 facts necessary to show the existence of the adverse possession." 
 A mere general allegation in the bill, that there have been disabil- 
 ities arising from infimcy or coverture, will not, however, be suffi- 
 cient to invalidate such a jdea.'' 
 
 In a jjlea of adverse possession, if the possession is derivative. 
 
 1 Cocking r. Pratt, 1 Ves. S. 400; see 
 Belt's Sup. to Ves. 187. 
 
 2 Wood V. Kowe, Rowe v- Woe I vhi 
 sup. 
 
 S Wvatt's P. R. 328; Story Id PI. 
 § 811. " 
 
 * Buames on Pleas, 247 ; Story Eq. PI. 
 § 811. 
 
 6 VVyatt's P. R. 328. 
 
 6 Lord Cliolniondeley v. Lord Clinton, 
 T. & K. 107. 118. 
 
 ■7 lllewlt V. Thomas, 2 Ves. J. 669, 671; 
 Story Eq. PI. §§ 814, 815.
 
 DEFFEEENT GROUNDS OF PLEAS. 673 
 
 and has not, during the whole thne covered by the plea, been in Ch. XV. § 2. 
 
 the defendant himself, the plea must show in whom the possession ' y ■' 
 
 was, at the time when the plea sets it np, and how the defendant Form of plea, 
 deduces his possession fi"om such person ; and if the adverse pos- 
 session is to be inferred from circumstances which do not appear 
 upon the bill, the defendant must state clearly, uj^on the foce of 
 his plea, the circumstances on which he means to rely as constitut- 
 ing the adverse possession.^ 
 
 A will may also be pleaded in bar to a bill brought, on a ground A will. 
 of equity, by an heir-at-law against a devisee, to turn the devisee 
 out of possession.^ Thus, where a bill was brought to set aside a 
 will on account of fi-aud, on a suggestion that the testator was 
 rendered incapable of making it, by being j^ei-petually in liquor, 
 and particularly when he executed the will, and likewise for a re- 
 ceiver to be appointed, and the defendant pleaded the will, and 
 that it was duly executed : ^ Lord Hardwicke allowed the plea, so 
 far as it applied to that part of the bill which sought to set the 
 will aside : because " you cannot, in this Court, set aside a will for 
 fraud ; " but he would not allow it as to the receiver : for he would 
 not tie up the hands of the Court, in case it should be necessary, 
 in the progress of the suit at Law, to have a receiver appointed.* 
 A will, however, cannot be pleaded to a bill by an lieir-at-laAV, 
 jn-aying for production of documents, and an injunction to restrain 
 the defendants fi-om setting up legal impediments, in an action of 
 ejectment commenced by him against them.^ 
 
 In like manner, upon a bill filed by an heir against the person ^ convey- 
 claiming under a conveyance from tlie ancestor, the defendant may »"<=<^- 
 plead the conveyance, in bar of the suit ; ^ and so, where a bill 
 was filed by persons claiming under a will, to set aside a convey- 
 ance made by the testator, on the ground of fraud, and the defend- 
 ant pleaded a conveyance by the testator, before the date of 
 his will, of the estate Avhich the plaintifis claimed, the plea was 
 allowed.^ 
 
 In all pleas of title, whether derived under a will or a deed, if Averments to 
 the defendant is not the person taking immediately under the will P'*^^ "' '"^''• 
 or deed, V)Ut derives his title through others, the title of the defend- 
 ant must be deduced from the })ersun immediately taking, by 
 |»roper averments in the plea. And in all cases it is necessary, Must.ihow 
 wliether the title be derived from adverse ])ossession, or from aAvill title com- 
 
 * . nienccd 
 
 or conveyance, to show that it had a commencement anterior to i)pf<)rc 
 
 jiluiiillfT's. 
 
 1 Hardmnn v. Kllamc?, 2 M. & K. 732 < Anon., ^^ Atk. 17. 
 
 739,744; C. 1'. Coop. t. IJroupli. 351,354; '' Humlxdd v. l-orteatli, 2 Jur. N. S. 
 
 nee .lernrd v. SandcM, 2 Vcs. J. 187. C8C, V. C. W. 
 
 2 Ld. lied. 203. Ld. lied. 263. 
 
 8 Storv Kq. I'i. § 812. For form of such ' Howe r. Diippa, 1 V. & B. 511,613; 
 
 a plea sec Vol. III. Willis, 559. Story Eq. 1'1.§ 812. 
 vol.. I. 48
 
 Ii74 
 
 PLEAS. 
 
 Oil. XV. 5 
 
 (6.) Purchase 
 for valuable 
 considera- 
 tion, without 
 notice : 
 
 by purchaser 
 with notice 
 from a pur- 
 chaser with- 
 out. 
 
 that of tlio ]ilaiiitiir's titlr, as shown by the bill: a title posterior 
 to that of the i)laiii(iir ^\ ill not .avail as a. plea, unless it be some 
 way connected Avith the plaintiff's title. Thus, -where .1 bill was 
 filed by one claiming-, eitlier as heir ex parte materna of the per- 
 son last seised, or as a remainder-man under the limitations of a 
 prior settlement, charging that the person last seised had only a 
 life-interest in the property, and that it would so appear if the 
 contents of a certain deed, executed in 1730, and Avithin the power 
 of the defendant, were set forth ; and the defendant jtleaded that, 
 in the year 17GG, the person last seised, being tenant in tail in j)os- 
 session, had duly suffered a recovery of the est.ates in question, to 
 the use of himself in fee, and had subsequently devised them to 
 the defendant, the plea Avas overruled : because the defendant, 
 relying upon a subsequent title Avhich he had not connected in any 
 w.ay with the ground of the title upon which the plaintiff stood, 
 had not denied that title, or any subst.antial part of it, or the pos- 
 session or existence of the deed of 1780.^ 
 
 (G.) From what has been above stated it is obvious, that where a 
 conA'eyance is insisted upon by pica, as an adverse title, it must 
 bear a date anterior to the commencement of the plaintiff's title, 
 as shoAvn by the bill : though there are cases in which a convey- 
 ance may be insisted upon, posterior, in point of date, to the 
 plaintiff's titlc.^ In such cases, however, it is necessary to the 
 validity of the plea, that the conveyance should have been for a 
 valu.able consideration ; and that, at the time it was perfected, the 
 defendant, or the person to whom it was made, should not have 
 had notice of the plaintiff's right.'^ A plea of this sort is called 
 " a plea of pui-chase for a valuable consideration, without notice ; " 
 and it is founded on this principle of equity, n.amely, that where 
 the defendant has an equal claim to the protection of a Court of 
 Equity to defend his 2:)ossession, as the plaintiff has to the assist- 
 ance of the Court to assert his right, the Court will not interpose 
 on either side.* 
 
 A i^urchaser with notice from a i^urchaser without notice, may 
 shelter himself under the first purchaser ; ^ but notice to an agent 
 
 1 Hungate v. Gascoigne, 1 R. & M. 
 698; see also Jackson v. liowe, 4 Ituss. 
 514, 523. 
 
 - For an elaborate review of the cases 
 in wliich this defence can be raised, see 
 the judgment of Lord Westburj' L. C in 
 Phillips V. Phillips, 8 Jur. N. S. 145; 10 
 W. E. 236. 
 
 8 If tlie defendant has not used reason- 
 able diligence in the iuvestigsition of the 
 title, the plea is no defence. Jackson t>. 
 Kowe, 2 S>. & S. 472, 475. 
 
 ^ Ld. Ked. 274. Upon this principle it 
 has been hcM, that a purchase for valuable 
 consideration, though a good defence, is 
 
 not good as a ground for filing a cross-bill ; 
 Patterson v. Slaughter, Amb. 293; High 
 V. J3alte, 10 Yerger, 335 ; Doniiell v. King, 
 7 Leigh, 393; Story Kq. PI. § 805; Jcwcct 
 V. Palmer, 7 John. Ch. 65; Gallatinu v. 
 Cunningham, 8 Cowen, 361; Souzer «. De 
 Meyer, 2 Paige, 574; see tlie remarks of 
 Lord Chancellor Liflbrd upon this plea, in 
 Lord Drogheda v. Miilune, l''itilav's Dig. 
 449, cited in iMitlord Vj\. PI. (5th Am. ed.) 
 277, note (1). This delcnce must be raised 
 on the pleadings. Phillips v. Phillips, 3 
 (iitf. 200; 7 Jur. N. S. 1094; 8 id. 145; 10 
 W. li. 236, L. C. 
 c Ld. Ked. 278 ; Brandlyn v. Ord, 1 Atk.
 
 DIFFERENT GROUNDS OF PLEAS. 
 
 675 
 
 is notice to the principal ; ^ and where a person liaving notice, Cn. XV. § 2. 
 
 [lurchased in the name of another who had no notice, and knew '■^ y ' 
 
 nothing of the purchase, but afterwards approved it, and withoiit 
 notice paid the purchase-money and procured a conveyance, the 
 person tirst contracting Avas considered, from the beginning, as the 
 agent of the actual purchaser, who was therefore held affected 
 with notice.^ 
 
 A settlement, in consideration of marriage, is equivalent to a Effect of 
 purchase for a valuable consideration, and may be pleaded in the ^^^emliit. 
 same manner.'' If a settlement is made after marriage, in pur- 
 suance of an agreement before marriage, the agreement as well as 
 the settlement must be shown.^ A widow, defendant to a suit 
 brought by any person claiming under her husband, to discover 
 her title to lands of which she is in possession as her jointure, 
 may plead her settlement in bar to any discovery, unless the 
 plaintiff offers, and is able to confirni her jointure ; but a plea of 
 this nature must set forth the settlement, and the lands comprised 
 in it, with sufficient certainty.^ 
 
 Some doubt Avas entertained, whether a plea of purchase for Maybe . 
 valuable consideration Avill avail against a legal title. The point |'g\';!jf^ftig*' ^ 
 has been fully discussed by Lord St. Leonards, in his "Treatise 
 of the LaAV of Vendors and Purchasers," ® and it seems now to 
 be settled that there are cases in which this defence may be so 
 pleaded.'^ 
 
 571; Lowther v. Carlton, 2 Atk. 139, 242; 
 Ca. t. Talbot, 167; Sweet v. Soutlicote, 2 
 Bro. C. C GH; M'Queen r Farquhar, 11 
 Yes. 47H; Hierii r. Mill, 13 Ves. 120; and 
 see Harri-on v. Forth, Free, in Chan. 51; 
 btorj- E([. Fl. § tOb; Varick v. liriggs, 6 
 Piiipe, 329; Bennett v. Walker, We=t, 130; 
 Jackson v. McCliesney, 7 Cowen, 360; 
 Bun:pus V. Fiatiier, iJuhn. Ch.213; Deni- 
 arest V. Wynkoop, 3 John. Cli. 147; .lack- 
 Boa t;. Henry, lo John. Ibb; .laekson v. 
 Given, 8 John. 673; Alexander v. Fendle- 
 ton, » Cranch, 462; 1 Storj- Kn. .lur. §§ 40'J, 
 410, and notes; Ilagthorp v. ilook, 1 Gill 
 & J. 203; Curtis c. Lunn, Mnnf. 42; 
 Griflith r. Gntlith, 1 ll>iY. Cii. 103; 
 Lacy r. Wil''<in, 4 .Munf. 313; Lindsay v. 
 Hankin, 4 Bibb, 482; .McNitt v. Lotjan, 
 Litt. Sel. Ca. (i'J. lint if he would avail 
 himself of the want of notice in hiit vendor, 
 he must e.\|ir<!H(dy aver that ignonince in 
 pleading. ( iailatian r. Krwin, I I lopk. 58 ; 
 S. <'. on a|ipeai, H (Jowei), 3tH ; (irillitli v. 
 (irithth, 1 ilotf. Ch. 163; Cununing.s v. 
 Colenvm, 7 H'n-M. Eq. S. <>. 501*. A pur- 
 chaser without notice from one who has 
 fradulently [(urchased, is not afl'ecf«d by the 
 fraud. Buinpu» r. I'latner, 1 .Inlin. Ch. 
 213; Jackson r. Hetirv, 10 John. IHo. 
 
 ' Ld. lied. 278; Brotherlon v. Ilatt, 2 
 Vern. '')74; l,e Neve r. I.e Neve, 3 Atk. 
 646,655; Maddox i'. .Mad<lox, 1 Ves. S. 62; 
 Asiiley f. Baillic, 2 Ve.t. S. 370; lliern v. 
 
 Mill, iihi sup. ; Mountford i'. Scott, 3 JIad. 
 34, 39; Keniiedv v. Green, 3 M. & K. 699; 
 Atterbury v. Wallis. 8 De G., M. & G. 454; 
 2 Jur. N. S. 343; F>pin v. Femberton, 3 
 De G. & J. 547 ; 5 Jur. N. S. 157 ; 4 Drew. 
 333 ; 5 J ur. N. S- 55 ; Llovd v. Attwood, 3 De 
 G. & J. 614 ; 5 Jur. N. S "l322 ; Storv F:q. Fl. 
 § 808; Griffith v. Griffith, 1 Hotf. Ch. 153. 
 
 2 Ld. Red. 278; Jennings v. Moore, 2 
 Vern. 609; Blenkanie (•..leniieiis, 2 Bro. F. 
 C. ed. Tond. 278; see ilolony v. Kernan, 
 2 Dr. & War. 31. 
 
 3 Ld. Red. 278; Harding v. Hardrett, 
 Rep. t. Finch, 9; Jackson v. Royrc,ubisup. 
 
 ■* Ld. Red. 279; Lord Keeper v. Wyld, 
 1 Vern. 139. 
 
 6 Ld. Red. 279; Petre v. Petre, 3 Atk. 
 511; Fyncent v. I'vncent, ih. 571; Sen- 
 house V. Karl, 2 Ve8. S. 450; Leech v- 
 Trollop, ib. 662. 
 
 (llth Eiig. ed.) pp. 1067-1072; (7th 
 Am. ed.) vol. 2, 572-578. 
 
 7 See Juilgment of Lord Westburj', L. 
 C., in Fhillii>.s v. I'hillips, hJur. N. S. 145; 
 10 W. R. 236; Lord St. Leonard", V. & 
 P. 791, 796, where this case is reviewed; 
 Bowen v. Evans, 1 Jo. & Lat. 178, 263; 
 .lovco V. De Moleyns, 2 Jo. & Lat. 374; 
 Fenny V. Watts, 1 M'N. & G. 150; 2 De 
 G. &"S. 501 ; Altorney-(;( iieial t'. Wilkiiis, 
 17 Be'iv. 2*-5; 17 Jur' >-8.'»; Lane v. Jack- 
 con, 20 Beuv. 535; Cidver v. Finch, 6 11. 
 L. C. 920; 3 Jur. N. "S. 25; S. C. nom
 
 G76 
 
 TLEAS. 
 
 I'll. XV. § J. The rules tor the guidance of ;i pleader in framing pleas of tliis 
 
 ^— — Y ■' (lest-ri])tion have been so clearly and succinctly laid down by the 
 
 l'\>nn of jiKa. Icanu'd author of the Treatise hist referred to, that it a})pears to 
 be the best course, on the present occasion, to call the reader's 
 attention to the following extracts from that valuable work,^ 
 namely : - — 
 
 " The i)lea must state the deeds of ]nirchase : sotting forth the 
 dates, parties, and contents, briefly, and the time of their execu- 
 tion : ^ for that is the peremptory matter in bar.'* 
 
 " It must aver that the vendor Avas seised, or prejtended to be 
 seised, at the time he executed the conveyance.'' In Carter v. 
 PrUchard^ it was held, that the plea of a purchase without notice 
 must aver the defendant's belief, that the person from whom ho 
 purchased was seised in fee. If it bo charged in the bill that the 
 vendor was only tenant for life or tenant in tail, and a discovery 
 of the title be prayed, such a discovery cannot be covered, unless 
 a seisin is sworn in the manner already mentioned, or that such 
 fines and recoveries were levied and suffered as would bar an 
 entail if the vendor was tenant in tail : for if a purchase by lease 
 and release should be set forth, which would pass no more from 
 
 Deeds of jnir- 
 oliji.se to bo 
 stated. 
 
 Averment of 
 seisin. 
 
 Finch V. Shaw, 19 Beav. 500, 507; 18 Jur. 
 935; Greenslade v. Dare, 17 Beav. 502; 20 
 Beav. 284; 1 Jur. N. S. 294; Stackhouse 
 v. Countess Jersey, 1 J. & H. 721; 7 Jur. 
 N. S. 359; Wood't;. Mann, 2 Sumner, 507. 
 " The point of doubt," says Mr. Justice 
 Stor^', "has been, whether the defence 
 ought to appl}' to a case, where the plain- 
 tiff founds his bill upon a legal title, seek- 
 ing: to support it by a di'-covcry, and the 
 defendant relies soleh' on an equitable title 
 to protect himself from the discovery. 
 Upon this point the authorities are at vari- 
 ance; but upon principle, it would seem 
 diflBcult to resist the reasoning by which 
 the doctrine, that the purchaser is, in such 
 a case, entitled to protection, is sup|)orted." 
 Story Ef]. ri. § 604 a; see 3 Sugdeu V. & 
 P. (7th Am. ed.) 1067 tt set/. Snelgrove 
 V. Snelgrove, 4 Desaus. 288, where tliis 
 point is fully examined, and the Chancel- 
 lor (Desaussure) remarks: '"It should be 
 remembered, that the plea protects, by the 
 Court refusing to aid the plaintiff in setting 
 up a title. ]S^jw, when the title attempted 
 to be set up is an etjuitable one, it seerns 
 verj' rea.sonable that the Court should for- 
 bear to give its assistance in setting up such 
 equitable title against another title set up 
 by a fair purchaser. But when the plain- 
 tiff comes with a legal title, I do not see 
 how he can be refused the aid of the Court." 
 See al^^o Larrowe v. Beame, 10 (Jhio, 498. 
 1 This subject is fully discussed in Snel- 
 prove V. Snelgrove, 4 IJesaus. 286; 2 Sug- 
 den Vend. & Purch. (7th Am. ed.) 1067 
 et seq. ; Cardwell v. Cheatman, 2 Head 
 (Tenn.), 14. The same explicitness has 
 
 been held not to be necessary in setting up 
 the defence of bond fide purchase for a 
 valuable consideration, without notice, 
 when made in an answer as in a plea. 
 Servis v. Heatty, 32 Miss. (3 George) 52. 
 
 2 V. & P. 788-790 (7th Am. ed.j, 1067 
 et seq. 
 
 3 Quare this, as the plaintiff might 
 thereby be enabled to proceed ag.iinst the 
 defendant at Law ; see Anon., 2 Cha. Ca. 
 161; in Day t). Arundle, Hardres, 510, it 
 was expressly held, that the time of the 
 purchase need not be stated in the plea. 
 
 •* See Gilb. For. Kom. 58; Aston v. As- 
 ton, 3 Atk. 302; Salkehl v. Science, 2 Ves. 
 S. 107; Harrison w.Southcott, ?■(!<. 389, 396; 
 and see Walwyn v. Lee, 9 Ves. 24, and the 
 plea in that case. Beames on Pleas, 341. 
 It seems, that the practice formerly was to 
 extend the plea to the di.scover3' even of 
 the purchase deeds; and in Watkins v. 
 Hatchet, 1 Kq. Ca. Ab.'36, pi. 3, although 
 the purchaser improvidently offered to pro- 
 duce his ))urchase deeds, yet the Court 
 would not bind him to do so. 
 
 5 Storv V. Lord Windsor, 2 Atk. 630; 
 Head V. Egerton, 3 1'. Wms. 279, 281 ; and 
 see Attorney-General v. Backhouse, 17 
 Ves. 290; Jackson v. Rowe, 4 Kuss. 514, 
 523; Beames on Pleas, 342; Craig »;. I>eiper, 
 2 Yerger, 193; Lanesborough v. Kilmaine, 
 2 Moll. 403; Snelgrove v. Snelgrove, 4 
 Desaus. 287. 
 
 6 Michaelmas Term, 12 Geo. IL 1739, 2 
 Vivian's MS. liep. 90, in Lincoln'.s Inn 
 Library; see Jackson v. Rowe, 4 Ru.ss. 514, 
 519.
 
 DIFFERENT GROUNDS OF PLEAS. 
 
 677 
 
 the tenant in tail than it laAvfully may pass, and that is only an Ch. xv. § 2. 
 
 estate for the hfe of the tenant in tail/ then there is no bar against "— ^ — -" 
 the issue.2 Where, however, a fine was pleaded, the plea must 
 have averred an actual seisin of a freehold in the vendor, and not 
 that he was seised or pretended to be seised.^ 
 
 " If the convevanee pleaded be of an estate in possession, the and of pos- 
 
 ^ , . • .1 ^* ^ session; 
 
 •plea must aver that the .vendor was in possession at the time ol 
 the execution of the conveyance.* And, if it be of a particular 
 estate and not in possession, it must set out how the vendor 
 became entitled to the reversion.^ But, although a bill be brought or of rever- 
 by an heir, ttie plea need not, on that account, aver the purchase ^'^'^^ 
 to be from the plaintiff's ancestor." 
 
 " The plea must also distinctly aver, that the consideration and payment 
 money mentioned in the deed was bond fide and truly paid,^ ° P"'^®' 
 independently of the recital of the purchase deed : ^ for if the 
 money be not paid, the plea will be overruled,^ as the purchaser 
 is entitled to relief against pajanent of it. The particular con- 
 sideration must, it should seem, be stated,^'^ although this point has 
 been decided otherwise." There can, however, be no objection to 
 state the consideration : as, if it be valuable, the plea will not be 
 invalidated by mere inadequacy.^^ The question is, not whether 
 the consideration is adequate, but whether it is valuable : for if it 
 be such a consideration as wdll not be deemed fi-audulent within 
 the statute 27th Elizabeth, or is not merely noniinal,^^ or the pur- 
 chase is such a one as Avould hinder a. puisne purchaser from over- 
 turning it, it ought not to be impeached in Equity. 
 
 " The plea must also deny notice of the plaintiff's title or claim,^* 
 previously to the execution of tlie deed and payment of the pur- 
 
 and denial of 
 notice. 
 
 1 This is the doctrine of Littleton, with 
 which, it seems, Gilbert iif,'ree(l; but since 
 Littleton's time it has been held, that the 
 releasee has a base fee. det''riiiinal)lc by the 
 entrv or action of the issue; see liutler's n. 
 1, to'Co. Litt. 331 a, and the authorities 
 there referred to. But now estates tail 
 niav be barred by deed. 3 & 4 Will. IV. 
 c. 74. 
 
 2 Gilb. For. Rom. .57. 
 
 » Story I'. Lonl Windsor, 2 .\tk. C30; 
 and .see I'a;."- f. Lever. '2 Ve-> .J. 4.'jO; Uob- 
 8on V. I.cadlicater, 13 Ves. 230. 233. 
 
 * Treviinian i'. Mmse, 1 Vern. 246; 
 Strole V. Blickburne, 3 Ves. 222, 220; 
 Wallwyn v. Lee, 9 V'es. 32; Heames on 
 Pleas, 342; see idso .lackson v- Howe, 4 
 Kuss. r>14, 510; Ladv LunesborouKh r. 
 Lord Kilinaine, 2 Moll. 403; Ogilvie v. 
 JeaflVe-oii, 2 (iilT. 3.-.3; 6 .Fur. N. S. t)70. 
 
 6 llu(?hes V. (Jarth, Ami). 421. 
 
 .Sfvmer c. Nosworthv, Freem. 128; 3 
 Chtt. UV-p. 40; Xels. Hep." 135. 
 
 7 Monre r. Mayhow, 1 Clia Cii. 84; 
 Brcreton v. Ganiuf, 2 Atk 241 : Molony v. 
 Kernan, 2 Dr. & War. 31; IJi-ames on 
 
 Pleas. 344; Storv Eq. PI. § 805; Jewettr. 
 Palmer, 7 .John. Ch. 65; HiR-h v. Hatte, 10 
 Yerger, 335; Donncll v. Kin^, 7 Leigh, 
 303; Molony i'. Kernan, 3 Dr. & War. 31; 
 Sneigrovc v. Snelgrove, 4 Desaus. 286. 
 
 8 Maitland v. Wilson, 3 Atk 814; 2Sug- 
 den V. & r. (7th Am. ed.) 1069. 
 
 9 Ilardingham v. NichoUs, 3 Atk. 304; 
 as to necessity of proof, see Molonj' v. Ker- 
 nan, iibi sup. 
 
 i" Millard's case, Freem. 43; Snag's 
 case, cited ibid. ; and see Wagstatf v. Hetid, 
 2 Cha. Ca. 156; Hi<;h v. Hatte, 10 Yerger, 
 335; Donnell v. King, 7 Leigh, 393. 
 
 11 Moore v. M.\vliow, vbi sup.; Day v. 
 Arundel, Hardre, 510. 
 
 •'■^ Hasset r. Nosworthy, Rep t. Tinch, 
 102, cited .\mb. 76ii; Miidrnay v. Mildniay, 
 ciU-A ibid. ; liullock r. Sadlier, ib. 703, 767. 
 
 13 Set! Moore r. Mavliow, 1 Cha. Ca. 84; 
 Wag-ilafl'r. lieiid, 2 Cha. Ca. 150. 
 
 l* Ladv IJodmin v. VamU-nbendy, 1 
 Vern. 179; Annn., 2 Vcntr. 301, No. 2; 
 Cummings v. Coleman, 7 Kich. Ivi- (S. C) 
 509.
 
 t')78 
 
 PLEAS. 
 
 (11. XV. §2. 
 
 rjirticuliir in- 
 ^:I;^nl•cs to be 
 denied 
 .•specially. 
 
 Possession of 
 papers. 
 
 Where gen- 
 eral denial 
 sufficient. 
 
 c'liMse-inonoy ; ^ lor, till tlini, tlu- transaction is n(.)t complete; and, 
 thorotbro, if the jnirohaser iia\ o notice previously to that time, he 
 will be bound by it. And the notice so denied must be notice of 
 tlio existence of the plaintiff's title, and not merely notice of the 
 existence of a person Avho could claim under that title.^ But a 
 denial of notice, at the time of making the })urchase and l)aying 
 the purchase-money, is good ; " and notice before the purchase 
 need not be denied : because notice before is notice at tlie time of 
 the purchase ; * and the party will, in such case, on its being made 
 to appear that ho had notice before, be liable to be convicted of 
 perjury.'^ 
 
 " The notice must be positively, and not evasively, denied," and 
 must be denied whether it be or be not charged by the billJ If par- 
 ticular instances of notice, or circumstances of fraii'd, are charged, 
 the Ihcts from which they are inferred must be denied as sj)ecially 
 and particularly as charged.^ So, if the bill charges that the pur- 
 chaser has in his possession certain papex'S and documents, whence 
 it will a]:)pear that his was not a purchase without notice, the de- 
 fendant is bound to support his |)lea by an answer to that chai'ge.® 
 
 " But he need only by his ])lea deny notice generally, unless 
 where facts are specially charged in the bill as evidence of notice.-'" 
 
 " Notice must also be denied by answer ; ^° for that is matter of 
 fraud and cannot be covered by the plea ; ^^ because the plaintiff 
 
 1 Moore v. Mavhow, iibi sup. ; Story v. 
 Lord Windsor, 2 Atk. 630; Attornev-Gen- 
 eraU". Gower, 2 Eq. Ca. Ab. 685, pi. 11; 
 Beames on Pleas, 344; Aiken v. Smith, 1 
 Sneed (Tenn.), 304; Wilson v. Hillver, 1 
 Saxton (N. .].), C3; Story Eq. PI. § 80G; 
 Jewett V. Palmer. 7 John. Ch. 65; Gordon 
 V. Rockafellow, Halst. Dig. 169; Pillows. 
 Shannon, 3 Yerger, 508; Murray v. Ballon, 
 1 .John. Ch. 566; Heatley v. Finster, 2 
 John. Ch. 158; Murray v. Finster, 2 John. 
 Ch. 155; M'Giiliee v. Sneed, 1 Dev. &Bat. 
 333; Frost V. Beekman, 1 John. Ch. 288; 
 De Mott V. Starkev, 3 Barb. Ch. 403; 
 Boone v. Chiles, 10 Peters, 177, 211, 212; 
 Williinns v. Ilollingswortii, 1 Strobh. Eq. 
 103; Ellis V. Woods, 9 Rich. Eq. (S. C.) 19. 
 
 ■^ Kelsall V. Bonnet, 1 Atk. 522, which 
 has overruled Brampton v. Barker, cited 2 
 Vern. 159. 
 
 3 See Snelgrove v. Snelgrove, 4 Desaus. 
 287; Murray v. Finster, 3 John. Ch. 155, 
 157. 
 
 * To make the plea of bond fide pur- 
 chaser without notice available, the notice 
 before the whole of the purclmse-money 
 was paid and conveyance receiveil, must 
 be denied. Natz v. M'Plierson, 7 Monroe, 
 599; Frost v. Beekman, 1 John. Ch. 298, 
 303; Jewett v. Palmer, 7 John. Ch. 65; 
 High V. Batte, 10 Yerger, 385. 
 
 6 .tones v- Thomas, 3 P. W'ms. 243. 
 
 * Ca<-on V. Round, Prec. in Cha. 226; 
 and see 2 Eq. Ca. Ab. 682 (D.), n. (6). 
 
 ■^ Aston V. Curzon, and Weston v. 
 Berkeley, 3 P. Wms. 244, n. (F); and see 
 the 6th resolution in Brace v. DucheJ^s of 
 Marlborougli, 2 P. Wms. 496; Hughes v. 
 Garner, 2 Y. & C. Ex. 328, 335 ; Lowry v. 
 Tew, 3 Barb. Ch. 407. 
 
 8 Meder v. Birt, Gilb. Eq. Rep. 186; 
 Radford v. Wilson, 3 Atk. 815; and see 
 Jerard v. Sanders, 2 Ves. J. 187; 4 Bro. 
 C. C. 322, 325; 6 Dow, 230; Folev?;. Hill, 
 3 M. & C. 475, 481; 2 Jur. 440; \Vil«on v. 
 Hillycr, 1 Saxton (N. J.), 63; Deiming v. 
 Smith, 3 John. Ch. .345; Balcohn v. N. Y. 
 Life Ins. and Trust Co., 11 Paige, 454; 
 Lowry v. Tew, 8 Barb. Ch. 407; Manhat- 
 tan Co. V. Everston, 6 Paige, 457 ; Galatian 
 V. Erwin, 1 Hopk. 48; Pillow v. Shannon, 
 3 Yerger, 508. 
 
 Hardman v. Ellames, 5 Sim. 640, 650; 
 2 M. & K. 732; C. P. Coop. t. Brough. 
 351; and see Gordon v. Shaw, 14 Sim. 
 3S»8. 
 
 10 Pennington v. Beechey, 2 S. & S. 282 ; 
 Thring v. Edgar, ih. 274, 281; Beames on 
 Pleas, 348; Griffith v. Griffith, 1 Hoff. Ch. 
 163. This rule will not, however, apply 
 to an answer in support of a plea, unless 
 the plea is negative; and now, the defend- 
 ant need only answer those facts to which 
 he is interrogated; see (tide, pp. 534, 615. 
 
 11 Care must be taken in case of a plea 
 of a purchase for a valuable consideration 
 without notice, not to make an answer to 
 any statements in the bill actually and
 
 DIFFERENT GROUNDS OF PLEAS. 
 
 679 
 
 must have an opi)ortunity to except to its sufficiency if he think 
 fit ; ^ but it must also be denied by the plea : because, otherwise, 
 there is not a complete plea in Court on which the plaintiff may 
 take issue.^ Although a purchaser omit to deny notice by an- 
 swer, he will be allowed to put in the point of notice by Av^ay of 
 answer,^ and the omission will not invalidate his plea, if it is de- 
 nied by that.* If notice is omitted to be denied by the plea, and 
 the plaintiff re])ly to it, the defendant has then only to prove his 
 purchase ; and it is not material if the plaintiff do prove notice, as 
 he has waived setting down the plea for argument ; in which case 
 it would have been overruled.^ If, however, a bill is exhibited 
 against a purchaser, and he plead his purchase, and the bill is 
 therefore dismissed, a new bill will lie charging notice, if the point 
 of notice was not charged in the former bill, or examined to ; and 
 the former proceedings cannot be pleaded in bar.® But if notice is 
 neither alleged by the bill nor proved, and the defendant by his 
 answer deny notice, an inquiry will not be granted for the purpose 
 of affecting him Avith notice.'^ 
 
 " A plea of a purchase for valuable consideration without notice, 
 will not be allowed where the purchaser might, by due diligence, 
 have ascertained the real state of the title.* 
 
 " If a purchaser's plea of valuable consideration without notice, 
 be falsified by a verdict at Law, and thereupon a decree is made 
 against the purchaser, and he then carries an ajjpeal to the House 
 of Lords, it will be dismissed, and the decree affirmed, without 
 further inquiry."^ 
 
 A plea of purchase for a valuable consideration without notice 
 protects a defendant from meeting the title set up by the plaintiff; 
 but a plea of bai'e title only, without setting forth a consideration, 
 is not sufficient for that purpose.^'' It will also protect a defendant 
 from the discovery of deeds and Avritings, except of the purchase 
 
 Cii. XV. § 2. 
 
 Plea no pro- 
 tection,where 
 want of 
 diligence. 
 
 Decree after 
 verdict, and 
 then appeal. 
 
 Protection 
 afVorded by 
 plea. 
 
 Plea ore 
 ienus : when 
 not allowed. 
 
 properly covered l)y the yjloa ; for notwitli- 
 Htandin;; some <loul)ts formerly entertained, 
 itseem.Hnowe-taldished, that, in siicli a case 
 if the defen<liint answer at all to the matters 
 covered by the ph^ii, he must answer fully ; 
 and if he puts in a ;;eiieral answer, he can- 
 not protect hin)sclf hy such a defence in 
 his answer frnm Hn.swerinf^ fully. Story 
 Kfj. PI. § 000, and note, and cases cited, 
 § blO, note. The 3!»th Equity Kuies of the 
 Unifi-d Stafes Courts pives to such a per- 
 HOn the riiiht to proiect himself bv answer, 
 as he michl bv jilea. Story l'>q. I'l. § 847, 
 note, § HW, note. 
 
 1 Anon.. '2 (ha. Ca. 161 ; Price r. Price, 
 1 Vern. l*'-".; Folev v. Hill, 3 M. & C. 475, 
 481; 2.1ur. 440; now, the defendant need 
 only suiiport his plea by answer, if inter- 
 ropatoiies arc tiled; see 'iiilr, p. CI.'). 
 
 'i Harris v. [oLdedew, .'t P. Wm.-. !il, fit; 
 Meadows v. Duchess of Kingston, Ld. Ked. 
 
 370, n. (.s.); Amb. 750; .Jones v. Jones, 3 
 Mer. 101, 171. 
 
 3 Anon., 2 Cha. Ca. 101. 
 
 * Coke V. Wilcocks, Mos. 73. 
 
 6 Harris v. Infj^lcdew, ubi sup. ; Eyre v. 
 I)..Il.iiin. 2 Hall vt H. 302. 
 
 c \Viili:nnsr. Williams, 1 Cha. Ca. 252. 
 
 7 Ilardv ('. Peeves, 5 Ves. 426, 4.32. 
 
 8 .Jacks'on v. Uowe, 2 S. & S. 472, 475; 
 4 Huss. 514,523; Iliimilton v. Lj-ster, 7 
 H-. E. R. 500. If a party means to defeiul 
 hini'elf, on the {jjround, th;\t lie was a himd 
 
 Ji'lc purchaser for a valuable consideration, 
 without notice, he must deny the tact of 
 notice, and of every circutnstMnco from 
 which it can be niferred. I\Iin-rav r. lial-- 
 lou, 1 John. Ch. 575; P.alcolm v. N. V. Life 
 Ins. & Trust Co., 11 Pai^e, 454. 
 « Lewis V. Fieldinf,', Colles' P. ('. 301. 
 lo Brereton v. Gamul, 2 Afk. 241.
 
 080 
 
 PLEAS. 
 
 Ch. XV. §-J. ,1 
 
 If 
 
 (he <l(,'ien(I:int h:is tlio opportunity of 
 lis Miiswer, ami does not do so, lie cannot 
 
 dol'octs in 
 form of bill. 
 
 rioa.<! to 
 discovery. 
 
 Pleas to 
 amended bill. 
 
 deed wli'u'h is j)loadi'd.^ 
 raising this dotbiu'o by 
 jdoad it orally at the hearing.'- 
 
 There are also certain cases in whicli defects in the form of the 
 bill may be taken advantage of by jdea : such as a nusdescrij)tion 
 of the plaintiff's residence,'^ or of his name.* In these cases, as we 
 have seen,^ the present practice is to move that tlie phiintiff may 
 give security for costs ; and the Court will not encourage pleas of 
 this nature/' 
 
 All the grounds of pleas above enumerated go to the relief 
 prayed by the bill ; and, as we have seen, if they are sufficient to 
 protect the defendant from the relief prayed, they will also serve 
 to i^rotect him from the discovery sought, except so far as such 
 discovery is material to enable the plaintiff to avoid the effect of 
 the matter pleaded. There are, however, as has been already 
 stated, cei'tain cases in which, though the plaintiff may be entitled 
 to relief, the defendant will be protected from making, either the 
 whole, or some part of the discovery sought by the bill : because, 
 the situation in which he is placed renders it improper for a Court 
 of Equity to compel discovery, either because the discovery may 
 subject him to pains and penalties, or to forfeiture, or something 
 in the nature of a forfeiture ; '' or because it would betray the 
 confidence reposed in him as a legal ad\'iser, or as an arbitrator. 
 The cases in which these exemptions from discovery can be insisted 
 upon have been before pointed out, and the principles upon which 
 they rest discussed, in treating of demurrers ; ^ all that need, 
 therefore, be now said in addition is, that if the facts upon which 
 the defendant rests his claim to exemption from the discovery 
 sought do not appear upon the bill, they may be presented to the 
 Court by plea. The same principles apply in the case of bills for 
 discovery only.^ 
 
 It has been already stated, that a defendant may not only an- 
 swer an amended bill, but may also defend himself from the effect 
 of the amendments by a demurrer or plea.^** Pleas to amended 
 bills may be put in upon the same grounds as pleas to original 
 biUs ; but it i^ to be observed that, if a defendant has answered 
 the original bill, his answer may be read to counter])lead his plea 
 to the amended bill ; and that if, u})on so reading it, it should ap- 
 
 1 Salkeld v. Science, 2 Ves. S. 107; 
 Storv Eq. PI. § 809; see 1 Storv Eq. .lur. 
 § 410, and note; Lub6 Eq. PI. 2.45, 246. 
 
 2 Phillips V. Phillips, 8 Jut. N. 8. 145; 
 10 W. K. 236, L. C; 3 Giff. 200; 7 Jur.N. 
 S. 1094. 
 
 3 Rowley v. Eccles, 1 S. & S. 511; 
 Smith V. Smith, Kaj- Ap. 22; Bainbrigge 
 V. Orton, 20 Beav. 28. 
 
 * Cust V. Southee, 13 Beav. 435. 
 
 6 Ante, p. 358. 
 
 8 liatnhricT'^a v. Orton, vJn sup. 
 "> United States of America v. M'Rae, L. 
 K. 4 Eq. 327; S. (J. E. R. 3 Oh. Ap. 79. 
 
 8 Ante, pp. 5*52, 570. 
 
 9 Bulls I'. ISIar^'rave, 3 Beav. 448. For 
 form of plea tliat discovery would subject 
 defendant to penalty, see lieames on Pleas, 
 339 
 
 i« Ante, p. 682.
 
 FORM OF PLEAS. ^ 681 
 
 pear that the facts stated upon the answer to the original bill Cn. XV. § 3. 
 would operate to avoid the defence made by the plea to the 
 amended bill, the plea will be overruled.^ If the defendant answer 
 the original bill, and the amendments do not vary the case made 
 by it, he cannot plead to the amended bill.^ The mere fact, how- 
 ever, that the answer comprises matters retained in the amended 
 bill does not prevent the defendant from pleading to the latter ; ^ 
 and where the objection for want of parties arose again, in conse- 
 quence of an amendment of the bill, a second plea on that ground 
 has been allowed.* 
 
 Section III. — Form of Pleas. 
 
 A plea is intituled in the cause, and is headed as follows : " The Title. 
 ]»lea of the above-named defendant (or, of A. B., one of the above- 
 named defendants) to the bill of complaint of the above-named 
 ]>laintiff (or, i)laintiffs)." When put in by more than one defend- 
 ant, the heading runs as follows : "The joint and several plea of 
 the above-named defendants (or, of A. B. and C. D., tAVO of the 
 above-named defendants)," &c., &c.^ Where it is the ])lea of a 
 man and his wife, the words " and several " should not be inserted ; 
 but where an objection was taken to a plea by husband and wife, 
 on the ground that those words were inserted, Sir John Leach V. 
 C. considered the term "several" as meaning nothing, and that, 
 being mere surplusage, it did not vitiate the plea.° It may be ob- . 
 served, that where a plea was prepared as a joint plea of a husband 
 and wife, but the wife refused to swear to it, Avhereupon the hus- 
 band put in the plea, and a)>])lied that it should stand for himself, 
 it was so ordered.' The title of the plea nnist agree with that of 
 the cau.se at the time when the bill is iiled. 
 
 A defendant is not allowed to correct or alter tlie name of a Correction of 
 phiiutiff, or a co-defendant ; and if his own name is misspelt in the 
 ])ill, tlic title of his ]»lea must, nevertlicless, agree with that of the 
 bill, 'i'lie correction sliould l)e made in tlie beading, tlius : "The 
 [ilea (.f the above-named defendant, John Jones (in the bill by 
 inist.-ike called William Jones)."* If a female defendant marries avikiv 
 sul)sequeMtly to the filing of the bill, but before pleading, the plea J«ni.ii.' <io- 
 
 I J " ' X o J (ciiiiaiit lias 
 
 1 1,(1. Red. 20!); Ilvliarrt v. White, liiVZ. ; ■• Ticniey v. Stone, 4 Beav. 389, 391. ijH] ,•,l^.,^■ 
 Notfl f. VViiril, 1 Mafl. 322, 330; Hildynrd 6 Braitliwaitc's Pr. 61. For forins oi 
 
 r. Cre«*v, 3 ,\tk. 803. As to form of ploas ploas, see Vol. III. 
 
 to iDiiciidid IiIIIh, see Ilavnes v. IJarton, « Fitch v. Chapman, 2 S. & S. 31. 
 
 i;!.Iiir. 480, v. C. K. ' 7 I'liin v. , 1 Ch. Ca. S'.Ki; S. C. 
 
 2 Ksdiiilt! r. Molineux, 2 Coll. 030, 639; worn. I'avic v. Acourt, 1 Dick. 13; seo 
 10 ,Inr. f<.''i2. «n/c, pp. 180, 499. 
 
 8 Wvllie r. Klllce, 6 Hnrn, 605, 615; » I'.raitliwaite's Pr. 44, 02. 
 
 r.llice r. Kou[.eil (No. 1), 32 lieav. 299; 9 
 Jur. N. S. 630, 633. 
 
 misnomer ni 
 title.
 
 682 
 
 PLEAS. 
 
 Cii. XV. $ ■!. 
 
 AVhoiv I'loa 
 iH'couiiiaiiiod 
 bv answer. 
 
 Protestation. 
 
 Statement of 
 the part of 
 bill to whieh 
 plea applies. 
 
 Statement 
 of matter 
 pleaded. 
 
 sl'.oiild (^unli'ss slu' liu.s obtaiuod an oidor (o (Ictentl tlic suit by licr- 
 sclf) be he.'uU'tl thus: "The ])]v:i of A. 1>. and C. his wife, lately, 
 and in the bill called C. D., spinster (or, widow, as the case may 
 be), to the bill of complaint of the above-named ])laintiil"." ^ 
 
 AVliere a plea is accont])anied by an answer, it must be headed 
 "•The plea and answer," or, "The joint plea and answer," or "The 
 joint and several ])lea and answer," according to the circumstances. 
 
 A plea, like a demurrer, is introduced by a protestation against 
 the confession of the truth of any matter contained in the bill.'-^ 
 
 The extent of the plea, that is, whether it is intended to cover 
 the whole bill or a part of it only, and what part in particular, is 
 usually stated in the next ])lace ; and this, as before observed, 
 must 1)0 clearly and distinctly shown.^ Formerly, a plea, like a 
 demurrer, was liable to be overruled, if the answer accom])anying 
 it extended to any part of the bill covered by the plea ; and the 
 same, if not a greater degree of accuracy, was required of the 
 pleader in applying this rule. Now, as we have seen,^ this strict 
 practice is so far modified, that a plea is no longer liable to be 
 overruled only because it does not cover so much of the bill as it 
 might by laAV have extended to, or only because the answer of the 
 defendant extends to some j^art of the same matter as is covered 
 by the plea.^ 
 
 The matter relied npon as an objection to the suit or bill gen- 
 erally follows,® accompanied by such averments as are necessary to 
 supj)ort it : '' and where a |)lea is of matter which shows an imper- 
 fection in the frame of the suit, it should point out in what that 
 imperfection consists. Where, for instance, a plea is for want of 
 parties, it must not only show that there is a deficiency of parties, 
 but should point out Avho the parties are that are required. Thus, 
 in Merrewether v. Melllsh^ where a defendant pleaded a settlement, 
 for the ])urpose of showing that there were certain parties not be- 
 fore the Court who were interested in the suit, but did not aver 
 
 1 Braitlnvaite's Pr. 46, 62. 
 
 2 U\. Ited. 300; Story Eq. PI. § 694. 
 The reasons for the introduction of this 
 form have been before alluded to, ante., 
 p. .581. At Common Law, protestation in 
 pleading is now unnecessary. Protesta- 
 tions in pleas are not allowed in New 
 Hampshire. Rule 6 of Ch. Pr. 38 N. H. 
 606. 
 
 a Ld. Hed. 294, .300; MItford Kq. PI. by 
 Jeremy (.0th Am. ed.) 300, note (1), in 
 whi(,-h the editor has f^iven the opinion of 
 ChHncellor Walworth upon this point, as 
 pronounced in Leacrafty.Deinprev, 4 I'aif^e, 
 124; see .Story Kq. PI. § 604. If an an- 
 swer commences as an answer to the whole 
 bill, it overrules a plea and demurrer to 
 anv particular part of the bill, although 
 such part is not iu fact answered. Lea- 
 
 craft V. Demprey, 4 Paige, 124; Summers 
 V. Murray, 2 Edw. Ch. 205. A defendant 
 may pleiid, answer, and demur to the 
 same bill ; but those several defences must 
 each refer to, and in terms he put in as a 
 defence to, a separate and distinct part of 
 the bill, l^eacraft v. Demprey, 4 Paige, 
 124; ante, pp. 610, 616. 
 
 4 Ante, p. 617. 
 
 5 Ord. XIV. 8, 9; see ante, p. 540, note, 
 c The ]jartieular facts on wliich tlie de- 
 
 femiant intends to rely mu«t be clearly 
 stated, so that the plaintitl' may know 
 what case he has to meet. Ilardman v. 
 Ellames, 2 ^\. & K. 732, 739; Coop. t. 
 Brough. 351, 3.55. 
 
 7 \A. lied. 300; Story Eq. PI. § 694. 
 
 8 13 Ves. 435, 438.
 
 FORM OF PLEAS. ^^^ 
 
 that there was a deficiency of parties, or that the persons appearing Ch. XV. § i. 
 by the settlement to be interested were necessary parties, the plea "^ v - 
 was held to be informal, and leave was given to amend it. A plea, 
 denying a negative allegation in a bill, has also been held to be 
 informal.^ 
 
 The general requisites of a plea have already been discussed at General 
 considerable length ; it is unnecessary, therefore, now to allude to '''•'^"^* 
 tliem further tlian to remind the reader, that the plea must be 
 founded upon nuitter not apparent upon the face of the bill:"- 
 must reduce the case to a single point,^ except where leave has 
 been obtained to plead double : ^ and must be supported by proper 
 averments.^ 
 
 In addition to the abo,ve requisites it may be added, that a plea Must be 
 must be certain : it must tender issuable matter, the truth or false- 
 hood of which may be replied to or put in issue ; and that, not in 
 the form of general propositions, but specifically and distinctly.^ 
 Therefore, where a plea was put in by the East India Company, to 
 a bill filed by the Xabob of Arcot, in which they stated, that by 
 cliarters, confirmed by Act of Parliament, they had certain powers 
 under which particular acts were done, the plea was overruled, 
 because it did not set forth the contents of those charters and Acts 
 of Parliament." 
 
 A i)lea must also cover the whole case made by the bill, or by Must go to 
 that ])art of it wliich the plea affects to cover : otherwise it will be ^^5^. 
 overruled.^ Tims, where a bill was filed for a foreclosure of a 
 messuage and forty acres of land, and the defendant pleaded an 
 absolute title in himself to certain property mentioned in the 
 deeds by which he deduced his title, consisting of a messuage and 
 tenement, averring that they were the same which were meant by 
 the l>ill, the Court of Exchequer thought the plea could not be 
 considered as relating to the forty acres of land mentioned in the 
 bill, and oveiTuled it.^ And so, where, to a bill praying a recon- 
 veyance of four estates, the defendant put in a plea of a fine and 
 non-claim as to one, averring that the estate comprised in tlie fine 
 was the only part of the estates comprised in the bill to which he 
 liail or claiiiK"! a right, the plea was, in like manner, overruled.^" 
 So, also, whei-e a bill jtrayed an account of rents and ])rofits, and 
 that the defendant might be restrained from setting up outstand- 
 
 1 Lakcman v. Agiia Fria Gold Mining there is any mnttpr of equity in the bill 
 Compnnv, '22 Bcav. 70. to wliicli the plea dofS not set up a bar, 
 
 2 Ami; p. 603. and wliiili is not licnicd bj' w:iy of an- 
 8 Anlt, yip. 603, 607. .suit, tlw pli'ii n)U'-t be set aside. I'iatt v. 
 * Antr, pp. 608, 601>. Oliver, 1 MeLean, 3o3. If the pleii i.s to 
 '' Ante, p. 611. the whole bill, l)Ut does n()t e.xtend to or 
 I,d. Ked. 297, 298. ruwer the whole, the plea is bad. Hell u. 
 " Nabob of Arcot i'. East India Com- Woodward, 42 X. II. 192, 193. 
 
 panv, .". i'.ro. C. C. 292. 308. w Wcillakc v. Ilutlon, 3 X\M. 633. 
 
 « Ld. Ked. 294; Story Lq. 1M.§ 093. If ^ Wutkiiis v. Stone, 2 Sim. 49, 52.
 
 684 
 
 PLEAS. 
 
 Cm. XV. § 
 
 Liinsjimge of 
 plea. 
 
 Averments. 
 
 ing tonus, and tlic ck'Tomliint. ])le:ulctl that there were no outstand- 
 inu: terms, Sir .Tohii Leacli V. C. lield tlie plea to be bad, because 
 it Ictl part ot" tlie ease untouched.^ 
 
 With respeet to the huiguage of ]>leas, the reader's attention is 
 reealU'd to th(> observations madt' in ainither part of this work : ^ 
 in Avliieli, in tlie framing even of bills, tlie propiiety of adhering 
 to the known teehnieal language of the Courts, in all cases where 
 such langu:ige is ajiplicable to the case, has been discussed. It 
 only remains to add, th;it if such an adherence to the ancient 
 recognized forms of pleading is desirable in the case of bills, it is 
 still more so in the case of pleas, in which, as has been before 
 stated, there must, in general, be the same strictness, at least in mat- 
 ters of substance, as in ])leas at Law.^ It may, however, be repeated 
 here, that although the use in pleadings in Equity of such technical 
 expressions as have been adopted in pleadings at Common Law is 
 desirable, it is not absolutely necessary ; and that the same thing 
 may be ex])ressed in any tei-nis which the pleader may select as 
 proper to convey his meaning, i)rovided they are adequate to the 
 purpose.* 
 
 All the facts, however, Avhich are necessary to render the plea a 
 complete equitable bar to the case made by the bill, so far as the 
 plea extends, must be clearly and distinctly averred, in order that 
 the plaintiif may take issue upon it ; ^ and averments in general 
 ought to be positive.'' In some cases, indeed, a defendant has 
 been permitted to aver according to the best of his knowledge 
 and belief: as that an account is just and true;' and in all cases of 
 negative averments, and of averments of facts not within the im- 
 mediate knowledge of the defendant, it may seem improper to re- 
 quire a positive assertion.^ It is, however, the opinion of Lord 
 Redesdale, that unless the averment is positive, the matter in issue 
 appears to be, not the fact itself, but the defendant's belief of it; 
 and that, in all cases, therefore, averments should be positive, as 
 the conscience of the defendant is saved by the nature of the oath 
 
 1 B;irker v. Rav, 5 Mad. 64 ; see also 
 Hook V. Dorman, 1 S. & S. 227, 230; 
 Hoare v. Parker, 1 Cox, 224, 228; 1 Bro. 
 C. C. 578, 580; Ld. Ked. 277, n. (s.) 
 
 2 Ante, p. 362. 
 
 8 See Marselis v. Morris Canal, &c., 1 
 Saxton ( N. J. ), 3 1 ; Story Eq. PI. § 658. In 
 pleading matters of sub-tance the same 
 strictness is required in Equity as at Law. 
 Burditt V. Grew, 8 Pick. 108. 
 
 •» Ante, pp. 362, 363. 
 
 5 Ld. Red. 298; see N'ewman r. Ilutton, 
 3 Beav. 114, 117; Overton v. Banister, 4 
 Bear. 205, 208. The plea '^hould state so 
 distinctly to^what part of the bill it is 
 intended to apply, th;it thy Cnurt can de- 
 termine, on examination of the bill, what 
 
 parts are covered by it. Davison v. Scher- 
 merhorn, 1 Barb. "(3h. 4S0. Where the 
 ple;i does not <^o to the whole bill, it must 
 clcarh' point to the part of discovery or 
 relief intended to be C(jvercd by it, but, if 
 overruled for a defect in this particular, 
 the defendant will not thereby be precluded 
 from insistiiifj upon the same matter in his 
 answer as a defence pro tanlo. Jarvis v. 
 Palmer, 11 I'aiire, 650. 
 
 8 Foster V. Vassall, 3 Atk. 587; Story 
 Eq. PI. § 662. 
 
 7 Anon., 3 Atk. 70. 
 
 8 Drew V. Drew, 2 V. & B. 159, 162; 
 Kirkman v. Andrews, 4 Beav. 554, 557; 6 
 Jur. 130; see also Small v. Attwood, 1 Y. 
 & C. Ex. 39.
 
 FOEM OF PLEAS. 
 
 685 
 
 administered : which is, that so much of the plea as relates to his Cn. XV. § 3. 
 own acts is true, and that so much as relates to the acts of others ' < ^ 
 lie believes to be true.^ 
 
 The plea having stated the facts upon which it is founded, com- Conclusion: 
 monly concludes with a repetition, that the matters so offered are 
 relied upon as an objection or bar to the suit, or to So much of it 
 as the plea extends to ; and then prays the judgment of the Court 
 whether the defendant ought to be compelled further to answer 
 the bill, or such part as is pleaded to.'^ It does not appear that 
 any particular form of conclusion is necessary, in pleas in Equity. 
 Some of the old forms of pleas to the jurisdiction conclude by to the 
 praying the judgment of the Court, "whether it will hold plea J"^'* '*^*'°°' 
 upon, and enforce the defendant to answer the bill, for the cause 
 aforesaid;" whilst other precedents, with less precision, demand 
 judgment of the Court, " whether the defendant shall be compelled 
 to make further or other answer." ^ The forms of pleas in Equity to the person; 
 to the person are tolerably unifonn in concluding, by praying 
 judgment of the Court, whether the defendant shall be compelled 
 to make any further answer during the existence of the disability 
 pleaded.* The })recedents of pleas in bar, generally, conclude in bar. 
 witli pleading the matter set up, in bar of the discovery and relief, 
 or of the discovery (as the case maybe), and demand judgment of 
 the Court, whether the defendant shall be compelled to make fur- 
 tiier or other answer to the bill, praying to be dismissed with costs : 
 a prayer that is sometimes added and sometimes omitted. They 
 do not, however, alvrays state, that the matter is pleaded in bar.^ 
 
 Where a plea is accompanied by an answer, the answer must sMiere ac- 
 follow the conclusion of the plea. If the answer is merely to sup- 13°"!^^^"^^^. 
 ])ort tlie plea, it is stated to be made for that purpose, "not waiv- 
 ing the plea."® If the plea is to part of the bill only, and there is 
 m 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 the same 
 protestation against waiver of the plea.'' 
 
 A pk-a must be signed by counsel ; ^ and no counsel is to sign 
 any i)lea, unless he has drawn, or at least perused the same : and 
 he is to take care that documents be not unnecessarily set out 
 therein in hcnc verba ; and that no scandalous matter be inserted 
 
 Sifrnalure liy 
 couiisol. 
 
 1 \A. Itcd. 298; Story Eq. PI. §§ C02, 
 fiG^; IJolton r. Ganlner, 3 I'liige, 273; 
 Hfiirlt I". Corning, 'A I'aige, 600; see form 
 in Vol. III. 
 
 2 L(l. Kcl. 800. 
 
 ^ BeiiineH on Picas, 49. 
 « I hill. 
 
 " Lfl. Itcfl. 300. A question not rnii>ed 
 by the jilea cannot be raised by an answer 
 
 in support of the plea. Such an answer 
 forms no part of the defence; but is tliat 
 evidence which tlie yihiintifl' has a right to 
 require, mid to use to invalidate the de- 
 fence made by the plea. Sucii answer can 
 be used oidy to .support or disprove tlie 
 plea. Andrews v. IJrown, 3 Cusb. 133; 
 Ld. Red. 10!). 
 
 7 Ld. lied. .'300; Story Eq. PI. § 696. 
 
 « Ord. VIIJ. 1.
 
 086 
 
 PLEAS. 
 
 When- siiriia- 
 tiiiv uniiitoil 
 to I'liirross- 
 luont. 
 
 I in pert i- 
 
 IR'IK'O. 
 
 Scandal. 
 
 In what 
 i-aust's ])lca 
 must be on 
 uatli : 
 
 where plea is 
 not ot" matter 
 purely of 
 record ; 
 
 Cu. XV. § •?. tlierolii.' Tlio siij^iiMturo of counsel is usually ;vtt;iohc(l to the draft 
 
 "" 1- ■ of tlu' ]>le:i, Mild c"o]iic'(l by llic solicitor on to the enoTossment. If 
 
 a pica lias boon inadvortontly filed witliout counsers name, it is 
 conooived tliat, as in (he case of an answer, an order of course 
 may be o1)tainod to add the same to the engi-ossment.''^ 
 
 If tlio plea contain any impertinent matter,* or is of an imjiroper 
 or unnecessary length, the defendant putting it in may be ordered 
 to paj' the costs occasioned thereby.^ The application for the 
 costs of such iinpertinent matter is to be made at the time when 
 the Court disposes of the costs of the cause, and not at any other 
 titne.^ 
 
 If the plea contain any scandalous matter," exceptions should be 
 taken to such matter. The practice on such exceptions is the 
 same as in the case of exceptions to a bill for scandal, and has been 
 ab-eady described.'' 
 
 Whore the matter of the plea appears npon record, the j)lea is 
 put in without oath ; but where the matter of the plea does not so 
 appear it must be upon oath.^ 
 
 In consequence of this rule, if the matter 2"»leaded is purely 
 matter of recoixl, or, in other "words, which may be proved by the 
 record, the oath of the party is not necessary ; but if any flict in 
 pais is introduced, which would require to be proved at the hearing, 
 the plea must be upon oath. Thus, where a defendant pleaded 
 the statute 32 Henry VIII. c. 9, against selHng pretended titles, 
 with the necessary averments of want of possession, &c., and did 
 not put the plea in upon oath, it was ordered to be taken off the 
 file, because the j^lea, although it set out a statute, was, in sub- 
 stance, matter in pais? For the same reason, pleas of a Statute 
 of Limitations, or of any other statute which require averments to 
 bring the defendant's case within its operation, must be upon 
 oath. It seems, however, that a mere averment of identity will 
 
 1 Ord. Vril. 2; ante, p. 313. 
 
 '■2 Bniitlnvaite's Pr. 48;/)os?, p. 677. 
 
 3 As to impertinence, see ante, p. .349. 
 
 4 1.5 & 1*5 Vic. c. 8G, § 17; Ord. XL. 9. 
 
 5 Ord, XL. 11. For the old practice, 
 in ca.se of impertinence in a plea, see 
 Dixon V. Olmius, 1 Cox, 412. 
 
 6 As to scandal, see ante, p. 347. 
 " Ord. XVI. 2, 8, 10; untt, pp. 349-3.54. 
 8 Ord. XIV. 2. In the Courts of the 
 
 United States, no plea shall be allowed to 
 be Hied to a bill, unless upon a certificate 
 of counsel, that in his opinion it is well 
 founded in point of law, and supported by 
 the affidavit of the defendant, tlitit it is 
 n it interposed for delay, and that it is true 
 in point of fact. United States Equity 
 Kule, 31 ; see Wdd v. Gladstone, 3 I)e Gex 
 & Sm. 740. The rule is inflexible in 
 Chancery proceeding-, that a plea of mat- 
 ters in pais, and pleas in bar of matters In 
 
 pais, must be filed on oath. Dunn v. Kee- 
 zin, 3 Scam. 297. A plea must be verified 
 by oath, althouf^h the plaintili' has ex- 
 pressly waived an answer from the defend- 
 ant on oath. Heartt v. Corning, 3 Paige, 
 5(ji3; Bassetc v. Company, 43 N. II. 2.51. 
 A plea is not evidence in behalf of the de- 
 fendant, as to the facts stated in it, so as 
 to require the testimony of more than one 
 witne--s to contradict it; even where it 
 negatives a material averment in the bill. 
 Heartt v. Corning, 3 Paige, 569; see Sad- 
 dler V. Glover, 1 H. Mon. 53; Story Eq. 
 PI. § C9(i; I Smith Ch. Pr. (2d Am. ed.) 
 231, 232; Caroll v. Waring, 3 Gill & J. 
 491; Hassctt v. Company, 43 N. H. 251; 
 Story Eq. PI. § 696. A plea, if not on 
 oath, will be set aside on motion. Bassett 
 V. Company, 43 N. 11. 249. 
 '■» Wall y. Stubbs, 2 V. & B. 354, 357.
 
 FORM OF PLEAS. 
 
 687 
 
 mere aver- 
 ment of 
 ideutit}'- will 
 not render 
 oath neces- 
 sary. 
 
 not render it necessary that a plea of matter of record should be Cii. XV. § :? 
 ].ut in upon oath ; therefore, where a plea of the plaintiff's con^nc- 
 tiou for forgery was put in without oath, Lord Eldon held it suffi- 
 cient, although there was an averment of the identity of the 
 plaintiff;^ and so, the circumstances of a plea of outlawry, con- 
 taining such an averment, will not render it necessary that it 
 should he upon oath.- 
 
 To entitle a defendant to plead any matter without oath, because what is 
 it is matter of record, it must have been properly enrolled, or made ™p".^'' °o 
 a complete record in the Court out of which it comes. Records which oath^ 
 are comjdete for this pui-jiose as soon as they are delivered into the 
 Court, and there fixed as the rolls of the Court ; but before they 
 are so fixed, and do not constitute a perfect record, they are said 
 to be as of record ; afid although they may be sufficient in the 
 Courts themselves to which they belong, as ground for ulterior 
 proceedings, they have not assumed that permanent form which 
 gives them the character of records.^ Thus, a judgment at Law, 
 signed by the proper officer of the Court by which it is made, is a 
 sufficient foundation for the issue of execution by the same Court ; 
 but as it is merely the instruction for a future judgment, and the 
 judgment is no record until it is actually made up, it is not a com- 
 plete record, and is not admissible as evidence in another Court.* 
 So, also, in the Court of Chancery, a bill or other pleading, Avhich 
 has been duly filed, or even a decree, though passed and entered, 
 is not a record of the Court, of whicli a copy can be admissible as 
 evidence in another Court. A proceeding or decree does not be- 
 come a record till it has been signed and enrolled. When, there- 
 fore, it is said, that pleas of matters of record may be i)ut in without 
 oath, it must be undenstood as confined to tliose matters wliicli are 
 of record, strictly so speaking, ami which require no other evidence 
 to i)rove them tlian Avhat the Courts are in the habit of recognizing 
 upon inspection ; '' such as exemplifications under the Great Seal of 
 the Court of Chancery, or of the Court out of which it comes. 
 Upon tliis principle it is, lliat a decree of dismissal, signed and 
 enrolled, may be jileadetl without oath. Upon the same i)rinciple, 
 a plea of outlawry, or of excommunication, may be put in without 
 oath ; and so may a plea of conviction of felony." 
 
 IVIatters not so recorded may be cai)ablo of proof aliande ; but ^yi,.,, j^ „int- 
 if ldeadc(l, the plea must be acconipanieil l)y the oath of the paitv: •'•'v""''' "' 
 
 1 '1 ^ I J I . iridi'd to 
 
 unless, indeed, they consist of transactions in the Court itsell", whicli, whicii onth 
 
 ininecessury. 
 
 » r. Davics, 19 Vps. 81, 83. 
 
 2 Anle, p. f)ti; and sec Prat r. Tnyl'^r, 
 1 Glia. (a. '237, as to pica oC iinvilf^e oi 
 defciKliiiit, (IS pcholur of tlie University of 
 OxJord. 
 
 8 2 Piiillips on Evid. 2; Tiivlomn Kvid. 
 §§ 137K-i:!'Jl, 1MI7-1-}0'.I. 
 '* Taylor on Kvid. § 1407. 
 
 6 Sec Wall V. Stuijbs, 2 V. & B. 304, 
 3.'>7. 
 
 V. Davies, 19 Yes. 81, ^^3.
 
 688 
 
 PLEAS. 
 
 Cii. XV. 5 
 
 In cn?c of 
 plea of 
 outlawrv. 
 
 Where 
 accompanied 
 br answer. 
 
 Omission of 
 oath not an 
 irregularity 
 which can be 
 waived. 
 
 nlthouuh thov have not hiH'ii soloiunly and lonnally onrolled, arc 
 (jintsf of record. Pleas oi' such matters, as well as matters of rec- 
 ord, may he ])ut in without oath : for, as the Court is in the habit 
 of noticing its own ])roceedings, they are cai)able of proof witliout 
 any < it Iter evidence than the production of the ]n-oceedinf; itself, 
 or an office copy of it, signed. by the proper officer. Upon this 
 priucii)le it is, that, when a plea of a suit already depending in the 
 Court of Chancery is put in, the Court does not require that it 
 should be upon oath, but immediately directs an inquiry into the 
 existence of such a suit.^ 
 
 In the case of a plea of outlawry, the record must be pleaded 
 szfb ^:)ef?e sigilli ; - and it w^as formerly usual, as well at Law as in 
 Equity, to annex to the plea a co])y of the whole record of out- 
 lawry, duly authenticated by the seal of the Court from which it 
 issued, in order that the Court might judge immediately of the 
 truth of the plea ; ^ but it was afterwards the practice to annex the 
 capias utlagatum only, under the seal of the Court,'' or of the proper 
 office, which is, in fact, the seal of the Court. And where, instead 
 of a copy of the cajn'as utlagatum, duly authenticated, the defend- 
 ant annexed a certificate, under the seal of the Clerk of the Out- 
 lawries, the plea was held bad.^ But it seems that since the 14 & 
 15 Vic. c. 99, a copy, certified by the ]iroper officer, of the sheriff's 
 return to the Avrit of exigi facias, is sufijcient evidence of the out- 
 lawry.'^ 
 
 In all cases where a plea is accompanied by an answer, it must 
 be put in upon oath.'' A j^lea by a peer, or a ])erson having privi- 
 lege of peerage, must, in those cases where an oath would be 
 required from persons not enjoying the privilege, be put in upon 
 attestation of honor. In the case of a corporation aggregate, it 
 must be under the common seal ; and it is advisable, though not 
 indispensable, that the affixing of the seal should be attested by 
 some officer of the corporation.^ 
 
 Where a plea which ought to be upon oath, is put in without 
 one, the irregularity is not one which can be waived by the plain- 
 tifi"'s taking any proceeding upon it ; ^ and in such a case, the 
 plaintiif should move, upon notice, that the plea may be taken off 
 the file." Where, however, a joint and several plea had been 
 
 1 Ord. XIV. 6, 7; Urlin v. Hudson, 1 
 Vern. 332, nnte, p. 661. 
 
 2 Ord. XIV. 4. 
 
 3 Co. Litt. 128 b. 
 
 * 6 IJac. Ab. 67 ; and see Fox v. Yates, 
 24 Beav. 271. 
 
 6 Waters v. Mayliew, 1 S. & S. 220. 
 Leave was, however, given to amend the 
 plea, as the defect arose from the mistake 
 of the Clerk of the Outlawries, and not of 
 the defendant. 
 
 Anstruther v. Roberts, 4 W. R. 349, 
 V. C. K. ; and see Wintlirop r. Elderton, 
 15 Jur. 1028, V. (J. K.; ante, p. 55. As to 
 outlawries, see Chitty's Arch. 1295-1305. 
 
 ■? .Jefl'erson v. Dawson, 2 Cha. Ca. 208. 
 
 ** Uniitliwaite's I'r. 53. For form of at- 
 testation, see Vol. III. 
 
 9 Wall V. Stubbs, 2 V. & B. 354, 358. 
 
 10 Wild V. Gladstone, 3 De G. & S. 740; 
 15 Jur. 713. If a plea is not verilied by 
 the oath of the defendant, the plaintiff
 
 interlinea- 
 tions. 
 
 SWEARING, FILING, SETTING DOWN, AND ARGUING PLEAS. 689 
 
 sworn to by all the defendants, except one who had died, the Court Ch. XV. § 4. 
 refused to order it to be taken off the tile.^ 
 
 Section TV. — Swearing^ Filing^ Setting Down, and Arguing 
 
 Pleas. 
 
 A plea, being drawn or perused and settled by counsel, must be How 
 written upon paper of the same description and size as that on which ^^S^sse . 
 bills arc printed ; ^ and the Record and Writ Clerks may refuse to Erasures and 
 file any plea in which there is any knife erasure, or which is so 
 blotted as to obliterate any word, or is improperly written, or so 
 altered as to cause any material disfigurement ; or in which there 
 is any interlineation : unless the person before whom the same was 
 sworn duly authenticate such interlineation with his initials, in 
 such manner as to show that such interlineation was made before 
 the plea was sworn, and so as to mark the extent of such interlin- 
 eation.® A joint plea and answer must be printed in the same 
 manner as answers are printed.* 
 
 AVhere a defendant puts in a plea on oath, or attestation of How swom. 
 honor, it must be signed by him, and the signature be affixed or 
 acknowle<lged in the presence of the person before whom the plea 
 is swora.^ Pleas are sworn and taken in the same manner as 
 answers.® 
 
 A plea which does not require to be put in on oath, need only when plea 
 
 be signed by counsel : "' and in other cases, if the plaintiff will con- '"?>' ^^ ''^^ 
 
 '=' •; 1 1 • T . . without oath 
 
 Bent, an order may be obtained as of course, on petition at the or signature. 
 
 Rolls, to file the plea without oath or signature, or without oath 
 
 only.* If the order dispenses with the oath only, the defendant 
 
 must sign the plea, and his signature must be attested by some 
 
 person competent to be a witness. The order must be produced 
 
 at the time of filing the plea.^ 
 
 The plea must be indorsed with the name, place of business or Filing plea. 
 
 residence, and address for service, if any, of the solicitor or party 
 
 filing it, in the same manner as otlier pleadings;^*' and it is filed in 
 
 the Record and Writ Clerks' Office," without any other formality 
 
 than that required for iiling an affidavit.^'' Notice of the filing Notice of 
 
 thereof should be given to the solicitor for the plaintiff, or to the *'•'"&• 
 
 miiy api«lv for iin onlor to set it a^i'le, or '- Onl. 16 March, 1860, r. IC; Ord. IX. 
 
 to have it laki'ii oil' the fihs of the Court; 3; mile, p. .3!t6. 
 
 but lie caniint make tlic ohjectii>n upon •* Onl I. 36. 
 
 the argument of tlie ph'a lleiirlt r. (Jorii- < Se'- /«|/^^ j)p. 755, 756. 
 
 iiiK. 3 I'aice, 566: lins-ett t; (:.)ini.an_v, 43 » Ord XIV. 3. 
 
 N. II. 251; 1 New. Ch. I'. 117. I'or lorin o See /««»<. pji. 743. el stq. 
 
 of notice (,f motion, see V..1. III. 7 ()nl VIII. 1; XIV. 3. 
 
 ' Atti>rn»'y-(icneral v. Craijock, 8 Sim. * For form of petition, sec Vol. III. 
 
 466; 1 .lur. 4!j5; "ce also Ope v. I'nrrv. 1 " I'.raitliwjiiles I'r. 6i, 63. 
 
 Mad. 83; C<ioke i;. Westall, jA. 206; Done ^" <Jrd. III. i, 5; mite, pp. 453, 454. 
 
 V. Rnad, 2 V. & B. 310. " (Jr I. I. 35; VIII. 3. 
 
 12 15 & 16 Vice. 66, § 21. 
 
 VOL. I. 44
 
 690 
 
 PLEAS. 
 
 Cu. XV. § 4. 
 
 Coiisenuoiu'o 
 of iiegliH't to 
 give notice. 
 
 Time allowed 
 to plead. 
 
 Whether plea 
 may be tiled, 
 under order 
 for further 
 time to 
 answer. 
 
 jilaintitl liimsi'lf if ho sties in pofson, belbro seven o'clock in tlie 
 eveiiiii<j oi' tiie d.ty on \\]nch the plea is filed, or, if filed on a Sat- 
 unlay, befoiv two o'clock in the allei-noon of that day.' Neglect 
 to give the notice in dne time will not render the plea inoperative ; 
 but the time allowed to the plaintitt' for taking the next step in 
 the cause will be extended, sq as to give him the benefit of the 
 time he woidd otherwise lose by the delay in the service.^ 
 
 A defendant is allowed the same time for pleading as for answer- 
 ing; and any extension of the time must be applied for in the same 
 manner as in the case of answers; and, generally, the rules regu- 
 lating the swearing, and the reception and filing of pleas at the 
 Record and Writ Clerks' Ofiice, are the same as those which regu- 
 late the swearing, reception, and filing of answers.^ 
 
 Some doubt at one time existed whether, when the order allow- 
 ing further time, in terms gave the defendant further time to an- 
 sw^er only, he was entitled to plead ; and in the case of Brooks v. 
 J^urton,^ where the defendant's application to the Master and the 
 aflidavits in support of it had reference only to answering. Sir J. 
 L. Knight Bruce V. C. was of opinion that an order giving leave 
 to answer, plead, or demur, not demurring alone, was irregular, and 
 he ordered the words in italics to be struck out from the order ; 
 wiiereupon his Honor directed the plea to be taken ofi' the file ; 
 afterwards, the defendant filed a plea ujider the order so altered : 
 but he stated, that his judgment proceeded entirely on the circum- 
 stances of the individual case. There have, however, been several 
 cases in wdiich it has been decided, that a ]ilea was an ansAver 
 within the meaning of an order for time to answer ; ^ and in the 
 case oi Hunter v. Nockolds, Lord Cottenham decided that if it is 
 intended to limit the defendant to an answer, the order must ex- 
 pressly decliire that intention.*^ 
 
 ford, 3 P. Wms. 79, 81; Roberts v. Hart- 
 ley, 1 Bro. C. C. 56; Ue Minckuitz v. Ud- 
 nev, 16 Ves. 3.')5; Philips v. Gibbons, 1 V. 
 & B. 184; Newmnn v. White, 16 Beav. 4; 
 Heartt v. Con.iiifr, 3 Paige, 566. The 
 tiling either an utiswer, plea, or dennirrcf, 
 is Siiid to be a coinpliance with the rule to 
 answer, in Braekeu v. Kennedy, 3 Seam. 
 564. If lurther time is given to answer, 
 it is improper to tile a demurrer witliout 
 leave of the (^ourt. Ibid. Demurrer to 
 piirt is not a compliance with an order to 
 answer. Kenrick )' ("la^'ton, 2 Bro. C ('. 
 (Perkins's ed.) 214, ami notes; 8. C 2 
 Dick. 685; Lansdown v. Elderton, 8 Sum- 
 ner's Ves. 526, note (1), and cases cited. 
 Plea under an order for time to answer 
 is regular. 8 Sumner's Ves. 256, note 
 
 6 2 Phil. 540, 544; 12 Jur. 149. revers- 
 ing S. C, BHare, 12; 11 Jur. 1006; see 
 also Newman v. White, 16 Beav. 4. 
 
 1 Ord. III. 9; XXXVII. 2; ante, pp. 
 454, 455. For form of notice, see Vol. 
 III. 
 
 2 Wright V. Angle, 6 Hare, 107, 109; 
 Lowe V. Williams, 12 Beav. 482; Jones i'. 
 Jones. 1 Jur. N. S. 863, V. C. S. ; Lloyd 
 V. Solicitors and General Life Assurance 
 Company, 3 VV. K. 640; 24 L. J. Ch. 704, 
 
 • V. C VV. ; ^ee, iiowever, Matthews v. Chi- 
 chester, 5 Hare, 207, iverrukd on appeal, 
 i6. 210; 11 .lur. 49. 
 
 8 See pust, Cliap. XVII. § 3, Amwers. 
 In Massachusetts, " the defendant may, 
 at any lime before the bill is taken for 
 conle.-»ed, or afterwards, by leave of the 
 Court, demur, plead, (;r answer to the bill." 
 Kule 10 of the Kules for Practice in Chan- 
 cery. 
 
 * 1 Y. & C C. C. 278; see also Taylor 
 V. Milner, 10 Ves. 444; Newmans. White, 
 16 Beav. 4. 
 
 5 Kav V. .Marshall, 1 Keen, 190; Anon., 
 2 P. Wms. 464; Jones v. Earl of Straf-
 
 SWEARING, FILING, SETTING DOWN, AND ARGUING PLEAS. 691 
 
 If the defendant does not obtain an order for further time, but Cn. XY. § 4. 
 
 allows an attachment to issue, there does not seem to be any ' r -'. 
 
 objection to his tiling a plea ; further than that he must, as in Jlay be filed 
 the case of an answer, first tender the costs of the contempt.^ fjje^[tt 
 If, however, the defendant is in contempt for want of an answer, but not after 
 and an order has issued for the Sergeant-at-Arms, it is considered ^t-lnns"^' 
 irregular to file a plea.- After service of a traversing note, a nor after a 
 defendant cannot plead to the bill, without the special leave of the J[Qtg'"'*!||^out 
 
 Court.^ leave. 
 
 An ofl5ce copy of the plea is taken by the plaintiff";* and, as Taking office 
 a general rule, he can take no step in the cause until the plea has '"'P^- 
 been disposed of Thus, except under very special circumstances, in^i'n°cause 
 there can be no motion for an injunction till the plea has been ^'.'^ P^'^'\ 
 argued. The Court will, however, at the instance of the plaintiffj '"^^"^'^ 
 in such a case, expedite the hearing of the plea ; and will give the 
 ])laintift* leave to move on the same day that it comes on, if the 
 plea should be overruled upon argument, that an injunction may 
 issue.^ 
 
 So, also, if a defendant pleads to part, and answers to the when de- 
 residue of the bill, the ])laintiff' cannot except to the answer till pi"l|,\'"\,, .^^.^ 
 the plea has been argued : " unless in cases where the plea is con- and ans\yers 
 lined to the relief prayed, and the defendant professes to answer ^^* . ' " 
 
 , , ,. ... , . , J'.xceptiona 
 
 as to the whole discovery required ; in such cases, it seems the pending plea. 
 Court will not require the })laintitt' to sot down the ]>k'a before he 
 excepts to the answer for insufficiency.'^ 
 
 The rule which recjuires a plea to be disposed of upon argu- ^o step 
 ment, before any further proceedings are had in the cause, applies allowed in 
 
 ' •' ^ " 111- *'*'' cause by 
 
 to cases where the defendant, as well as to cases where the plain- any party 
 tiff, seeks to move in the cause. Thus, if a defendant plead in P^'^^'^S plea. 
 bar, he cannot obtain an order for the plaintiff' to make his elec- 
 tion, till the jilea has been argued : for the plea, by insisting thiit 
 the plaintiff' is not entitled to sue in Equity, denies that he has an 
 election ; * and an order for the ])laintiff' to make his election, Election, 
 made under such circumstances, will, on motion, be discharged ; ® 
 as will also be an order to elect, made where the del'endant has 
 pleaded to part, and answered to the remainder of the bill.'" 
 
 The plaintiff" may, within three weeks after the filing ot the 
 
 1 Wiiter.s V. Chambers, 1 S. & S. 225; pleii, before tlie iirgunicnt of the pleii, tlio 
 
 RandiTH v. Munu'V, (/<(>/.,- Himilton r. truth of tlie plea is admillcd. Hrownell 
 
 Ilibbfit, 2 S. &. S."22r); Mellorr. ll;ill, ih. v. (urlis, 10 I'aige, 210; and see IJocliun- 
 
 821. 322; l-'oulke-* v. Junes, 2 I'.i-av. ■.!74. nan r. ll'i<l;;soii, 11 I'eiiv. .'iUH, a-- to lu'^v- 
 
 '■^ l{riiiihwait«-'8 I'r. 63. ing tor productii'n of doenniejits, after 
 
 8 Old. Mil 7; imie, \). t>\',. joii.t [>lea and answer. 
 
 * Hraithwiiite's I'r. 4'./l. " I'igol u. Stace, 2 Diik. 4!)r, ; Sidney «. 
 
 * IlumphrcvH I'. Ilnniplircvs, 3 I'. Wm.s. I'erry, ih. (J02. 
 
 3l»f>, 3i)7; Tfiimipsoii v. Selbv, 12 Sim. « Aium., Mos. 304 ; and see ;A«^ Chap. 
 
 100. " XI.X. § 4, l-.UrJiim. 
 
 « Diirnell v. Reyny, 1 Vern. 344 ; Hraitli ■ » Vanglian r. We'sli, Most. 210. 
 
 waite'» I'r. 127, 128. Where the phiintift" l* I'islier v. Mee, 3 Mur. 40, 47. 
 excepts to the answer accompanying a
 
 1)92 
 
 PLEAS. 
 
 Cii. XV. 5 4. 
 
 Certain pleas 
 luit usually 
 set down tor 
 argument : 
 
 of outlawrj' ; 
 
 of former suit 
 depending; 
 or of decree 
 signed and 
 enrolled. 
 
 Plea need not 
 be entered ; 
 
 and either 
 party may 
 Bet il down. 
 
 |>lo:»,* obtain on motion or ]>etition ns ot course," an order to 
 MtntMul his bill. The ]utiti(tii and order should state whether the 
 jilea has or has not bei-n set down I'or arnmnent : * in the former 
 case, the order is made on ])ayment of the taxed costs, and in the 
 latter, of "Jd.v. costs.^ This course should, however, oidy be 
 adopted when the jilaintitf considers the plea to be good : for such 
 an amendment of the bill is as much an admission of the validity 
 of the plea, as if the same had been allowed on argument.'' 
 
 If the plaintiff dispute the validity of the jdea, he shoidd set it 
 down for argument. There are, however, certain pleas which are 
 not usually set down for argument; these are: 1. Pleas of Out- 
 lawry ; '2. Of a former Suit de])ending ; 3. Of a Decree signed or 
 enrolled. The first are ])leadcd sifb sigillo^'^ so that the truth 
 of the fact is ascertained by the form of pleading; and the suit is 
 consequently delayed until the disability is removed : and when 
 removed, the defendant must, on receiving his costs, answer the 
 bill as if the outlawry had not existed.'' Where, hoAvever, the 
 jilaintiff conceives such a plea, through misi)leading or otherwise, 
 to be insufficient, he may set it down for argument.** In the case 
 of the two latter kinds of pleas, an inquiry will, on motion or 
 jtetition of course, be directed into the truth of them.® The order 
 for this inquiry ought to be obtained by the plaintiff: ^° unless he 
 conceives the plea to be deficient in foi-m, in which case he may 
 set it down for argument,^^ 
 
 Formerly, after the filing of a plea, it was necessary to enter it 
 with the Registrar ; but now this need not be done ; and upon 
 the filing thereof, either party is at liberty to set the same down 
 for argument immediately ; ^^ and it is irregular to set the same 
 down after three Aveeks from the date of the filing thereof; but 
 the times of vacation are not to be reckoned.^'^ 
 
 1 Ord. XIV. 17. The vacatioiis nre nf)t 
 reckoned, Old XXXVll. 13 (3); ante, p. 
 641. 
 
 2 For forms "f motion pnper ami peti- 
 tion, see Vi'l. III. But sifter the jjlea is 
 set down, the application to amend mu'-t 
 be bj' special suniinoiis. See an<e, p 593, ii. 
 For a lorm, see Vol III. 
 
 8 Jennings v. I'earce, 1 Ves. J. 448; 
 Thorn v. Germand, 4 John. Ch. 363; 
 Brown v. Kicketts, 2 John. Ch. 4'25. 
 
 * .lones V. Wattier, 4 .Sim. 128; I'arker 
 V. Alcock, 1 Y. & J. 19.5. 
 
 5 See Spencer v. Bryan, 9 Ves. 231. 
 
 6 Old. XIV. 4; «n<e, p. 688. 
 
 7 Ord. XIV. 5. 
 
 8 Ord. XIV. o; Ld Red. 305; see also 
 Hunter v. Ayre, 23 Beiv. 15; Hunter v. 
 Nockol'ls, 6 Hare. 459, 462 ; Fox v. Yates, 
 24 Beav. 271; and .'^ee ante, p. 56. 
 
 8 Ante,\)\). 637, 661. For form of order, 
 see Seton, 1259, No. 16; and for forms of 
 motion paper and petition, see Vol. lU. 
 
 in Ord. XIV. 6; antv, pp. 637, 661. 
 
 11 Ante, pp. 587, 610; Ld. Ked. 305; 
 Thomas v. Brasher, 4 Monroe, 67. Ex- 
 ceptions are never tiled to a ph-a, hut if 
 tlie parly conceives the plea to be defec- 
 tive, either in form or snb-taiice, he may 
 on motion or petition, have the iilea itself 
 set down fnr argument. Raymond v. 
 Simiinson, 4 Blackf. 79. 
 
 If the plaintiff questions the validity of 
 a plea in bar to the wiiole bill, without le- 
 pl^ing, the defi-ndanl must set it down 
 for argument; if held bad, the del'tni'ant 
 miisr, answer; if sustainel, the plaintiff 
 must reply; if he does reply and takes 
 issue, the deterniiiiatii>n of that issue is 
 final. Flagg «. Bonne), 2 Saxtoii (N. J.), 
 82. 
 
 12 Ord. XIV. 11. 
 
 13 Neck V Gains, 1 De G. & S. 223, 11 
 Jur. 763; Ord. XXXVll. 13 (3).
 
 SWEARING, FILING, SETTING DOAAT^, AND ARGUING PLEAS. 
 
 693 
 
 The party wishing to set a plea down for argument must, where 
 the cause is attached to one of the Vice-Chancellors' Courts, 
 present a petition to the Lord Chancellor, or, where it is attached 
 to the Rolls' Court, to the Master of the Rolls, praying that the 
 plea may be set down.^ The petition which, if the cause is 
 attached to one of the Vice-Chancellors' Courts, does not require 
 any fiat from the Lord Chancellor, nor any stamp,^ is left with 
 the Registrar, or the Secretary of the Master of the Rolls, as the 
 case may be ; ^ and must state the name of the Judge to whose 
 Court the cause is attached,* the day when the plea was filed, 
 and whether it is to the whole or part of the bill, and must be 
 subscribed by the solicitor, and state for what party he acts, and 
 be dated the day it is left."^ The order for hearing the plea, Avhich 
 is as of course, is drawn up by the Registrar, or by the Secretary 
 at the Rolls, as the case may be.^ The order should then be taken 
 to the Registrar's Clerk at the order of course seat, and he will 
 set the plea down at once;'' and a copy of the order should also 
 be served, as soon as jiossible, on the solicitor of the opposite 
 party.' 
 
 Unless specially directed by the Lord Chancellor, or the Lords 
 Justices, the plea must be set down before, and heard by the 
 Judge to whose Court the cause is attac-hed.^ Previously to the 
 hearing, two copies of the bill and a copy of the plea must be left 
 with the under secretary or the train bearer at the Rolls, or 
 with the train bearer of the Vice-Chancellor, as the case may be, 
 for the use of the Court.^° If the cause is attached to the Rolls' 
 Court, the plea will not be put in the paper until two clear 
 days : if to one of the Vice-Chancellors' Courts, until six clear 
 days after it has been sot down. 
 
 If the defendant does not tliiiik he will be able to maintain his 
 plea on argument, he should, before it comes on for hearing, obtain 
 au order fijr leave to withdraw it." The order will be granted 
 on payment of the costs occasioned by the plea. 
 
 Tlie ])arties should be provided witli oftice copies of the affidavits 
 of service of, and of being served with, the order to set down tlie 
 plea. If the plea has been set down by the plaintiff, and the 
 defendant makes dcfatilt at the liearing, the plea will be over- 
 
 Cn. XV. § 4. 
 
 Plea: how- 
 set down. 
 
 Service of 
 order. 
 
 Heard before 
 what Judge. 
 
 Papers for use 
 of the Court. 
 
 When put 
 into Court 
 paper. 
 
 Api)lication 
 hy (iofi'iKiant 
 to withdraw 
 pica. 
 
 Allidavit of 
 sors'ice of 
 order; 
 default of 
 defendant. 
 
 * f)rd XX J 9. 
 
 2 It.-K. Iii(riil 15 March, 1860, r. 3. 
 
 ^ Ord .\'.\l.9. For (oi 111 of Older, sec 
 Seton, lli'i", N'li. 10; and for (oriii of peti- 
 tion, nee Vol. III. 
 
 * Ord XIV V>. 
 
 6 K.'tC Idu'iil. 1.-) Marrli, ISOO, r .3. 
 tird XXI. !t. 
 
 7 K.-L' H.-.'id. ir> March, 1>;U0, r. 1. 
 
 * IIr;>'tliwnite'8 I'r. 65. 
 « Ord. VI. 4. 
 
 1" If tlies<^ directions as to papers are 
 nejrleclC'l, and in coiise(|ucnc'c thereof the 
 plea cannot Ik; heard, the .scdicitor may bo 
 ordered to pav such costs as the ('ouit 
 tliltiks lit. Ord". XXI. 12. The M K. re- 
 quires the papers to be left two clear day.s, 
 at least, before iheplea comes on for hear- 
 ing. 
 
 " l'"or form of order to willulrnw a plea, 
 Hce Seton, l^-llt, No. l.'); and for form of 
 ])Clition f(;r that purpose, see. Vol. III.
 
 CO-4 
 
 PLEAS. 
 
 Onler in 
 wliii-li coun- 
 sel heard. 
 
 Where 
 plaintiff 
 declines to 
 argue plea. 
 
 Plea cannot 
 stand over 
 indetinitoly. 
 
 Allefrations 
 in bill taken 
 less strongly 
 against plain- 
 tiff on plea, 
 than on 
 demurrer. 
 
 Answer suj>- 
 porting plea, 
 may be read 
 to counter- 
 prove plea. 
 
 ruled, if tlio ])l;iiiititV cnii produce ;ui nHulavil, of serviee on tlie 
 tlotemlant of the order to set doAvn the plea ; ^ if he cannot 
 prodiu'i' such an atlidavit, it will be struck out of the ])aper. If 
 the plaint iff hiinsrlf makes tlefault, the j)lea will bo allowed, if the 
 defendant can produce an ailidavit of having been served with the 
 order; or will be struck out of the paper, if he cannot.^ Similar 
 rules, mxdatis mutandis, apply to the case of pleas set down by the 
 defendant.^ 
 
 On the argument of the plea, where all parties aj)]ieai', counsel 
 for the defendant are first heard ; then the counsel for the plaintiif ; 
 and lastly, the leading counsel for the defendant is entitled to rei)ly.'' 
 
 If, when the plea is called on for hearing, the j)laintiif declines 
 arguing it, and applies for leave to amend, he will, in general, be 
 allowed to do so, on i)aynient of the costs.^ 
 
 A plea, when set down, will not be allowed to stand over for 
 an indefinite period.® 
 
 It may be observed here, that on tlie argument of a plea, the 
 allegations in the bill may be taken less strongly against the plain- 
 tiff^" than they would be on a demurrer.'' 
 
 If a plea is supported by an answer, iipon the argument of the 
 plea the answer may be read to connterprove the plea ; and if 
 the defendant appears not to have sufficiently supported his plea 
 by his answer, the plea must be overruled, or ordered to stand for 
 an answer only.* Where a defendant had answered to an original 
 bill, which was afterwards amended, Avhereupon the defendant 
 put in a plea to the amended bill, the plaintiff was permitted to 
 read the answer to the original bill, to counterjn-ove the plea to 
 the amended bill.^ 
 
 Upon the argument of a plea, every fact stated in the bill, and 
 not denied by the averments in the plea and by the answer in sup- 
 port of the plea, must be taken as true.^° If a plea be set down 
 for argument by the ])l;dntiff5 without replying to it, the matter 
 contained in it must be considered as true.^^ 
 
 1 For form of order in such case, see 
 Seton, 1258, No. 13; and for form of affi- 
 davit, see Vol III. 
 
 2 Where, in either case, the plea is 
 struck out, a fresh order must be olttaiiied 
 for settin;; it down, as in the case of a de- 
 murrer; see nvte, p .096. 
 
 8 Mazarredo v. Maitland, 2 Mad. 38 
 
 ■* Counsel's brief consists of copies of 
 
 the bill and plea. 
 
 6 S'-e .Joi.es?'. Wattier, 4 Sim 128; see 
 
 also nnle, p. 420. 
 
 6 Ord. XXI 13. 
 
 7 Kumbold v. Forteath, 2 Jur. N. S. 686, 
 V. C. W. 
 
 8 I,d. Red. 303; see Kirbv v. Tavlor, 
 6 .Tohn. Cli. 242; Souzer v. be, Mever, 2 
 Paige, 574; liogardus r. Trinity Church, 
 
 4 Paifje, 178; Kuypers v. Dutch Ref. 
 Church, 6 Paif^e, 570; Leaycraft v. Demp- 
 sey, 4 Paige, 124, 126; -Story Kq. IM. § C99. 
 If a plea accompanied l)y an -.inswer, i-t 
 allowed, the answer may be read at tlie 
 hearing of the cause to counter|)rove the 
 plea Souzer ?;. I )e Meyer, 2 Paige, 574; 
 Pogardus V. Trinitv Cliurcli, 4 Paige, 178; 
 Story Kfi PI. §§ 090, 699. 
 
 'J 'Hildvard"«5. Cressy, 3 Atk 303, ante, 
 p. 680. 
 
 10 Hogardus v. Trinity Church, 4 Paige, 
 178; Lawrence v. Pool, 2 Sandf. S. C. 
 540. 
 
 11 Gallagher v. Roberts, 1 Wash. C 0. 
 320; Uowley v. Williams, 6 Wis. 151; 
 D^ivison V. Johnson, 1 C. E. Green (N. J.), 
 112.
 
 SWEARIXG, FILIXG, SETTIXG DOWN, AND ARGUIXG PLEAS. 
 
 095 
 
 A plea upon argument may be either allowed simply, or Avith 
 leave to amend, or the benefit of it may be saved to the hearing, 
 or it may be ordered to stand for an answer, or it may be over- 
 ruled,-' The consequence of each of such judgments will be con- 
 sidered in the ensuing sections. 
 
 If the plaintifi* conceives the plea to be good, though not true, 
 he should reply thereto, and take issue upon it, as in the case of 
 an answer.^ He ^ should not, however, reply to a plea of the 
 dependency of a former suit for the same matter.^ 
 
 If the plaintiff reply to the plea, he thereby makes as full an 
 admission of its validity as if it had been allowed upon argument ; 
 so that, if the defendant, at the hearing, proves his plea to be 
 true, the bill must be dismissed.* Therefore, where a defendant, in 
 a plea of purchase for a valuable consideration, omitted to deny 
 notice, and the plaintiff replied to it, and the defendant, at the 
 hearing, proved the purchase for valuable consideration, it was 
 held that the bill ought to be dismissed : for it was the plaintiff's 
 own fault that he had not set the plea down for argument, when 
 it would have been overruled.^ And it seems, that in such case 
 it will make no difference if the plaintiff should prove notice : for 
 all that is required of a defendant, in such a case, is to prove his 
 plea, which he does by proving the purchase, and the payment of 
 the consideration.® 
 
 If a jilea to the whole or ])art of a bill is not set down for argu- 
 ment within three weeks after the filing thereof (exclusive of 
 vacations), and the plaintiff does not within such three weeks 
 serve an order for leave to amend the bill, or by notice in writing 
 
 1 Ld. Red. 301. For forms of onlers in 
 audi ca'^es. See Seton. 1258, Ncs. 12, 14. 
 
 2 Ld. Red. 301. In New .Jersey, Chan- 
 cellor (ireeii, in l>avisf)n v. .lohn.-on, 1 0. 
 K. Green (N. J.), 112. 113, remarked thnt, 
 when the cause is heard ii|>'>n a plea, 
 " the ((uehtion is not strictly whether the 
 i)'ea U in [iroper form, Init whether in the 
 lanffuaKe '»f the statute, the plea he good; 
 that is, whether upon the face of the ])lea 
 it pffent". if true, a valid defence to the 
 action. The iii(|uiry, when the cause is 
 lieard upon the plea, is suh-tantiall}' as if 
 the plaint'fl' had ilemurred to the phvi. The 
 f|ii'Siioii i^ hot, " hither til'' plea i- true, 
 hut whc-ther, if true, it is a (,'oo(l defiance. 
 'I his ih the iihvi'ius ineaniii(rot the statute. 
 If the phiintitf ileem« the pica bud, th'- case 
 (joes to hearing' ii|i>>ii the pie i. If h«! con- 
 ceives tlieplca to Ik- pood, tlioiifjli not true, 
 he taken issue upon it, and ppn-ccds. as in 
 rase iif iin answer." " TIk- Mihjecl of in- 
 quiry, is not the men; technical torinof the 
 plea, hut till! sufliciency of its averinctit't 
 to sustain the deU;oce; whether it is ;;ood 
 hoth in form and in siihs'ancc; whether, 
 m., at-uiiiiiif; nil the f.ic.ts propeily set 
 out in the plea to he true, it presents a 
 
 valid defence." See Nix. Dig. 99, § 24; 
 I'lajrg V. Bonne], 3 Stockt. (N. J.) ?2; Mc- 
 I^wen V. Broadhead, 3 Stockt. (N. J.) 
 129. 
 
 8 Jones V. Segucira, 1 Phil. 82, 84 ; 6 Jur. 
 183; Ord. XIV. 6, 7; ajilc, pp. G37, 692. 
 
 * Daniels v. Taggnrt, 1 Gill & .1. 311; 
 Storv Eq. IM.§ 697; Meeker r. Marsh, 1 
 Siixfon (N. J.), 198; Dows ». McMichuel, 
 6 I'iiige, 139. Upon a replication td a plea, 
 nothing i.s in issue except wliMt is dis- 
 tinctly averred in the plea ; and if that is 
 estahlishcd at the hcjiring, the plea is a bar 
 tn so iniich of the hill as it professes tocover. 
 Fi-h I.' .Miller. 5 I'aige, 26; ('ook v. Maii- 
 ciiis, 4 .lohii. Ch. 166: McKwen v. Broad- 
 head, 3 Stockt. (N. . J.) 131. The replica- 
 tion is an admissioti of the sufficiency of 
 the facts plcinlcd, asa biir, if true Hughes 
 V. 151 ike. 6 VVheat. 472; Hogardus v. Trin- 
 itv (Miiirch. 4 I'aige, 178; (iernun r. Hoc- 
 callne, 2 Wu-h (;.(). 199: Fish i'. Miller, 
 5 I'aige, 26; I'aniels v. Taggart, 1 (Jill & 
 J. 311; Rhode Island v. Massachusetts, 
 14 IVters. 210, 207; Dows r. Mc.Michael, 
 2 I'aige, 34.5; 6 I'aige, 139; (ialliigher v. 
 Roberts, 1 Wash C. (J. 320. 
 
 '' Hams V Ingledew, 3 1'. Wms. 94. 
 
 Cn. XV. § 4. 
 
 How jilea 
 m.av be dealt 
 with on 
 argiunent. 
 
 Replication 
 to plea; 
 
 but not of 
 pendency to 
 a suit. 
 
 Effect of 
 replication. 
 
 AVhen plea 
 will be suffi- 
 cient, without 
 being set 
 down.
 
 (5J)() 
 
 PLEAS. 
 
 (^n. XV. 5 -.. 
 
 ( 'osta. 
 
 Whoii pica so 
 held suHi- 
 cient, bill to 
 be dismissed. 
 
 After under- 
 taking to 
 reply to plea, 
 no proceed- 
 ing without 
 leave. 
 
 Vacations, 
 and days on 
 which offices 
 are closed, 
 not reckoned 
 in time to set 
 pleas down. 
 
 iintlortnko to ro])ly io (lie pli'M, the pIo:i is to be hold good to the 
 s.inu' extent, :ui(l tor the same purposes, as in tlic case of a plea 
 ti> the whole or part of a hill allowed upon armuiient;^ and the 
 defendant may ohtain an order as of course for the j)laintitf to pay 
 the costs of the ph-a, and, if the i)lea is to the whoh; bill, the costs 
 of tlie suit. 
 
 Where the ]»lea is to the whole bill, the defendant by whom it 
 was tiled, may at any time after the ex]nration of the three weeks 
 obtain, as of course, an order to dismiss the bill.^ A plea to the 
 whole of the relief, but only to a part of the discovery, is not a i)lea 
 to the whole bill within the meaning of this rule.'^ 
 
 If the plaintiif undertakes to reply to a plea to the wliole bill, 
 he is not, without the special leave of the Court, to take any pro- 
 ceeding against the defendant by wliom the plea was tiled till 
 after replication ; ^ and if he does not file his replication within 
 four weeks ai'ter the date of his undertaking, the defendant may 
 move, upon notice, to dismiss the bill for want of prosecution.* 
 
 The times of vacation are not reckoned in the computation of 
 the time for setting down pleas : ^ and if the time expires on a 
 day on which the offices are closed, the plea may be set down on 
 the day on which they next open.® 
 
 Section V. — Allowing Pleas. 
 
 Of taking 
 issue upon 
 the plea : 
 
 by filing 
 replication. 
 
 If a plea is allowed simply, it is thereby deteniiined to be a full 
 bar to so mnch of the bill as it covers, if the matter j)leaded, with 
 the averments necessary to support it, be true.'' If, therefore, a 
 plea is allowed upon argument, or the plaintiif without argument 
 thinks it, though good in form and substance, not true in point 
 of fact, he may take issue upon it, and proceed to disprove the 
 facts upon which it is endeavored to be supported.^ This he does 
 
 1 Ord. XIV. 17. As to an irregular 
 amendment after ttie above time, see 
 Campbell v. Jovce. L. li. 2 Fq. 377, V. 
 C. W. IJy the .38th Kqiiity Rule of the 
 Unitcil States Courts, if the plaintiff shall 
 not reply to anv plea, or set down any 
 plea iir deiDurrer tor argument, on the rule 
 day, when the same is tiled, nr on the next 
 succeecJinL' rnle day. he sha 1 be deemed to 
 adint the truth aiul sufficiency thereof aiiil 
 his bill shall be dismissed as of course, 
 unless a judge of the Court shall allow 
 further time fr the purpose. 
 
 Roberts v. Jones, 7 Heav. 57. In Alassa- 
 chusetts, " the plaintiff may set down the 
 plea to be argued, or fake issue on the 
 plea, within fifteen days from the time 
 when the same is filed; and, if he fiiil to 
 do so, a decree, dismissing the bill, with 
 
 costs, may be entered upon motion, unless 
 good cause appear to the contrjiry." Rule 
 11 of the Rules lor I'nictice in Ciiancerv. 
 
 2 Neck V. Gains, 1 Ue G. & S. 223;"'ll 
 Jur 7G3. For forms of motion paper and 
 petition, see Vol. III. 
 
 8 Old. XIV. IH. 
 
 ■* Ord. XXXIII. 10 (2). For torm of 
 notice of motion, see Vol. III. 
 
 5 Ord XXXVII 13 (3). 
 
 6 Ord. XXXVII. 12. 
 
 7 Story Kfj. I'l § G'j7; Ra.ssctt «. Com- 
 pany, 43 N H. 2 J3. A plea may be good 
 in part and bad in part. Lord Chelmsford 
 in L'nited States of America v. McRae, L. 
 R. 3 Ch. Ap. 79, 91 ; ante, p. 561 and cases 
 in note. 
 
 8 Ld Red. 301 ; liassett v. Company, 
 43 N. U. 253.
 
 ALLOWING PLEAS. 
 
 697 
 
 by filing a replication, in the same manner that he would do if Ch. XV. § 5. 
 the defendant had simply put in an answer to the bill, in the usual " i ' 
 
 way.^ 
 
 Where the defendant pleads the pendency of another suit, the Where plea of 
 
 , , , •/> 1 T i iU another suit 
 
 plaintiff ought not to reply to the plea, even il he disputes the pending. 
 
 fact, but he should, on motion or petition of course, obtain an order 
 
 for an inquiry into the truth thereof.'^ This order, and a certificate 
 
 in pursuance thereof, should be obtained within one month 
 
 from the filing of the plea : otherwise, the defendant may obtain, 
 
 on motion or petition of course, an order to dismiss the bill with 
 
 costs.* 
 
 When the plaintiflf has replied to a plea, its validity can never If replied to, 
 be questioned, but only its truth:* in fiict, nothing but the n^ustbe^^* 
 matters contained in the plea, as to so much of the bill as the plea proved. 
 covers, is in issue between the parties.^ If, therefore, issue is 
 thus taken upon the plea, the defendant must prove the facts 
 which it suggests : ^ if he fails in this proof, so that, at the heaiing, 
 the plea is held to be no bar, and the plea extends to the dis- 
 covery sought by the bill, the plaintifi" is not to lose the benefit of 
 that discovery, but the Court will order the defendant to answer If plea found 
 the interrogatories ; '' but, if the defendant proves the truth of J^ff ma^^have 
 the matter pleaded, the suit, so fiir as the plea extends, is barred ^^l^''^^^^^^ 
 even though the plea is not good, either in point of form or ant. 
 substance.^ 
 
 Although, when a plea has been replied to, the matter in issue Plaintiff may 
 is the truth of the plea only, which must be proved by the defend- evidence to 
 ant, this will not prevent the plaintiff, if he chooses, from entering {;.'"°;;'|;'jifgg. 
 into evidence to prove the whole case made by his bill.^ It can ,^^^ ^^^^ ^' 
 scarce] V, however, be imagined, that a case should ever arise, in general, 
 
 , ,. " ,. ^i i X- il 1 • *•«■ advisable so 
 
 which such a course of proceeding, on the part of the piaintitl, ^^ ^j^ 
 
 would be advisable, especially as this Court will not, as we have 
 
 soon, in the event of the plea being found fiilse, deprive the 
 
 1 See ;)"JI^ Chap. XXI. Hiplknlion. by the proofs, or the plea will he over- 
 
 2 For forms of motion piper and peti- rul^d mh filse. Dows v. M<Mii-liaeI, 6 
 tion. see \'»\- III. I'aif^e, 139. Upon the h'>:iriiifj on tlie de- 
 
 8 Ord. XIV. f., 7 ; nnte, pp, 6.37, 692; feii'laiit'-* ph-a evidence previou'-lv taken 
 
 R:\k(>r V. Hirrl. 2 Ves. J. 672; .lone* r. by the defi-ndant cannot be coii-idercd by 
 
 Sr'KiK'irrt, 1 Phil. ^2; 6 Jur. 1>^3; I.einh »'. the (jmirt. Hancock v. Carlt')n, 6 Gray, 
 
 Turner, 14 \V. It. .361, .M. It. Kor forms .'JU. 
 of inotion paper imd pitition, s^e Vol. ill. ' I.<1 Hed 302; Browiiaword ». EdwarHs, 
 
 * I'arkrrw. Hlvtbniorc, I'rec. iiiCh. oH; 2 V.;s. S. 247; Wood v. Strickland, 2 V. 
 
 2 V.'\. Ch .\b 70, I'j '); Dmisanv*. Slinw, Sc 15- l''^- 
 
 r. lUo. I'. (J. ed. Toml. 262, '207; Mc- » \A. Ked. .302; Harris v. Inplo.lew, 3 
 
 Kw.n V. nroadhead, 3 Stockt. (N. .1.), I'- Wnis. 94; Danielsv Taf,'f,'nrt. (Jill & J. 
 
 131. 311; lisli r. Miller, .1 raige, 26; Mopir- 
 
 1 Ld. Ked. 302 Fi«h v Miller, 5 Paipe, <lus v. Trinity Cliurcli. 4 l'ai;;c. 17M; I'eay 
 
 2<?. «. Dnncaii, 20 Ark >>f); h I i>:tr v. Itonnei, 2 
 
 8 Where a plea contninR RPveral dis- St.ckt. ( N. .1 ) b2; Dows v. McMichiiel, 6 
 
 tin'-t averments or al'ojritions r)f fact. Paf^i". 144 
 all the allegationn must be supported » Ord « lludJleston 2 Dick. f.lO, 512.
 
 698 
 
 PLEAS. 
 
 Cii. XV. 5 
 
 In what cases 
 plaiiitirt' must 
 go into 
 evidence. 
 
 Effect of 
 allowing the 
 plea. 
 
 Costs: 
 
 under former 
 practice. 
 
 under present 
 practice. 
 
 Costs of two 
 pleas for want 
 of parties, by 
 same solicitor, 
 not allowed. 
 
 When plea 
 allowed, with 
 leave to 
 amend. 
 
 lil.iiiitiir of any advantage wliicli lie might liavc had from a 
 discovery by the defendant, if an answer liad been originally put 
 in. 
 
 The plaintiff may, lunvi'ver, if he pleases, go into evidenee to 
 disprove ihi' plea; and if he has, in his bill, alleged <auy matter 
 ■which, if true, may have the effect of avoiding the plea, such as 
 notice or fraud, he may, after replying to the plea, enter into evi- 
 dence in supj)ort of his allegation. And where the plea introduces 
 matter of a negative nature, such as denial of notice, or fraud, it 
 will be necessary for him, in case sufficient to show the existence 
 of the notice or fraud, is not admitted by the answei* in sup))ort 
 of the plea, to go into evidence in sup])ort of the affirmative of the 
 proposition.^ 
 
 When a plea is allowed, it is considered as a full answer; and 
 an injunction obtained till answer will be dissolved, upon applica- 
 tion, as a matter of course,^ 
 
 Where a plea to the whole or ])art of a bill is allowed, upon 
 argument, the plaintiff, unless he undertakes to reply to the plea, 
 or the Court otherwise directs, is to pay to the party by whom the 
 plea is filed the costs of the plea, and, if the plea is to the whole 
 bill, the costs of the suit also ; and in such last-mentioned case 
 the order allowing the plea is to direct the dismissal of the bill.^ 
 Formerly, upon the allowance of a plea to the whole bill, if the 
 plaintiff undertook to reply to it, he had to pay the costs of the 
 plea, but the other costs of the suit were reserved ; * now, it would 
 appear that, in the same circumstances, both the costs of the plea 
 and the costs of the suit will be reserved, unless the Court makes 
 a special order.® 
 
 A solicitor will not be allowed to act oppressively, by putting in 
 two [(leas of the same nature for two defendants ; and, where a 
 solicitor set down two pleas for Avant of parties, on behalf of dif- 
 ferent defendants, he was allowed the costs of one only.*^ 
 
 If a plea is allowed, it is not uncommon to give leave to the 
 jdaintiff to amend his bill; especially in the case of a plea for 
 w^ant of parties.'' It must not be understood that this is a matter 
 of course ; ^ it Avill, however, probably be done more frequently 
 now than formerly : because, under the present practice, a plaintiff 
 may introduce facts or circumstances which have occurred after 
 the institution of the suit, by way of anu'iidinent, into his bill, if 
 
 1 Kwe V. Dolphin, 2 Ball & H. 303; 
 Saunders v. Leslie, ib. 515. 
 
 2 Phillips V. Lan},'honi, 1 Dick. 148. 
 
 3 Ord. XIV. 16. I'lea allowed without 
 costs, ani with liberty to amend bill. 
 Jones t). IJinns, 33 Ueav. 3G2; 10 Jur. N. 
 S. 119. 
 
 * l'"rv r. Richardson, 10 Sim. 475. 
 
 5 Voun-,'?'. While, 17 Beav. 532; 18. Jur. 
 277. 
 
 Tarbuck v. Woodcock, 3 Beav. 289. 
 
 ' Ld. Ked. 281. For form of order ia 
 such ci.«e, see Seion, 1258, No. 12. 
 
 « Ante, pp. 290, 419.
 
 SAVING THE BENEFIT OF A TLEA TO TTTE HEAHTNG. 699 
 
 the caiTse is othervrise in such a state as to allow of amendment Ch. XV. § 6. 
 beinw made therein.^ After the alloAvance of a plea, an order for 
 leave to amend the bill is special ; and on the application for it, the Costs. 
 plaintiff must specify the amendments he intends to make.'^ 
 
 Where the plea went to the plaintiff's right to sue, and was 
 allowed, leave to amend the bill was given, on payment of the 
 costs of the plea ; ^ hut where it was for want of parties, the costs 
 were reserved to the hearing of the cause.* 
 
 Section VI. — Saving the Benefit of a Plea to the Hearing. 
 
 It sometimes happens that, upon the argument of a plea, the Inwhatcases. 
 Court considers that although, as far as then appears, it may he a 
 good defence, yet there may be matter disclosed in evidence which, 
 supposing the matter pleaded to be strictly true, would avoid it ; 
 in such case, the Court, in order that it may not preclude the 
 question by allowing the plea, directs that the benefit of it shall 
 be saved to the defendant at the hearing.^ The effect of such an 
 order is to give the plaintiff an opportunity of replying, and going 
 into evi<lence, without overruling the plea.^ When the benefit of 
 the ]»lea is reserved to the hearing the interrogatories to such 
 part of the bill as is covered by the plea need not be ansAvered.'' 
 
 Unless any thing is said in the order in such cases with respect Costs. 
 to the costs of the plea, they must abide the result of the hearing: 
 the order saving the benefit of the i)lea to the hearing being, in 
 fact, nothing more than an order for the adjournment of tlie dis- 
 cussion. Lord Chief Baron Gilbert, with reference to this subject, 
 observes : " But if the words are to save the benefit of the plea till 
 the hearing, no other use could ever be found by these words, but 
 that in truth it saves tlie defendant paying costs for the ovenuling 
 
 1 16&16 Vic. c. 86, §5.3; see Tmlway the benefit thereof, is, thiit tlie defeinhint 
 r. .Inne.f, 1 K. & J. 691, where such an shall not he deprived of the benefit of his 
 or'ler wa- made. plea; hut that the |)l:iiiitill' shall be at 
 
 2 Tavl'ir K. Shaw, 2 S. & S. 12; Meek liberty to file a replication, and prooi'cd to 
 V. Gain"-<, 1 l)e G. & S. 223; 11 .lur. 763; the proof ol the fict-* in reply to the plea; 
 post, p. 730 and, on such liearinj^, the plea is to bo 
 
 3 I'udway v. .lone", M sup. taken, primd f'ncie, a jrood bar to the .suit; 
 ■• I)ovle c. Muntz, 5 Hare, 603, 518; 10 but as there may possibly be circumstan- 
 
 Jiir. 914 ces, which, in ICquity, ou'ilit to preclude 
 
 <• l,d. Ked. 303. Thus in Heartt v. (.'orn- the defendant from rel> in^j upon such p ea, 
 
 in^. 3 I'aij^e. 572, a [iIm of settled i)artiier- tlie cpicstion is le(to|)en until such hearing. 
 
 idiip aec.unl was held to b- widl pleaded; Ihii.cock V. Carlton, tiriv, .04; Ast'ey v. 
 
 but a.t facts m(,'id be di-eloscd juslilyiun I'onnlaine, Cms. temp. I'inch, 4; Story 
 
 a decree to surcharKe and falsify, the bene- K<|. I'j. §698; 1 Barb. Oh. I'r. 121, 122; 
 
 fit of it w.i- saved until the hearioK- To H ssett ti. (Jonipiiii}', 43 X. II. 253, 204. 
 
 httVH allowed i'. simply, would have made Ts'i ither party recovers costs on the ar^jii- 
 
 it a conclusive bar. ' ment ol a pleM wliens the henedl of it in 
 
 8 .See Co'ith I' .lack-on, G Ves. 12, 18. saved to th^- defendant until too hearing. 
 
 When the plei covers' the whole bdl. the lleartt v. C"iriin>^, 3 I'aige, 506. 
 
 effect of the or.ler. that the pliastmd over ^ Gilb. For. Uom. 04. 
 
 till the liourin^;, saving to tlio defendant
 
 700 PLKAS. 
 
 Cii. \v.§T. lus pliM ; and, tluMvloiv, tli()Ui;h tho Court often makes use of 
 these words, yet, Avhen tlie ])lea is very faulty, or naught, though 
 the Court often saves tlie benefit thereof till the hearing, yet they 
 deelare it shall not avoid the })aynient of costs." ^ 
 
 Section VII. — Ordering a Plea to stand for an Answer. 
 
 In what cases. If, upon argument, the Court considers that the matter offered 
 by way of ])lea may be a defence, or part of a defence, but that it 
 has been inlbrmally pleaded, or is not properly supported by the 
 answer, so that the truth is doubtful, it will, in such case, instead 
 of overruling the ]>lea, direct it to stand for an answer.''^ 
 Kffectof. If a ]>lea is ordered to stand for an answer, it is allowed to be a 
 
 sufficient answer to so much of the bill as it covers, unless, by the 
 Where no order, liberty is given to the plaintiff to except ; ^ and whei-e a 
 to except)^" defendant pleaded to the whole bill, and, on arguing the plea, it 
 Avas ordered to stand for an answer, without saying, one way or 
 the other, whether the plaintiff might except, the j)laintiff was not 
 allowed to except : because, by the terms " for an answer," in the 
 order, a sufficient answer is meant, an insufficient answer being no 
 Where plea answer.^ It is to be observed, that if a plea is to part only of the 
 o iv ^f'bll ^^'^' ^"*^ ^'^ accompanied by an answer to the rest, an oi'der that it 
 may stand for an answer, without giving the plaintiff liberty to 
 except, will not preclude the plaintiff fi-om excepting to the an- 
 swer to that part of the bill wdiich is not covered by the plea.^ 
 Where lib- The order for the plea to stand for an answer is, however, fre- 
 
 erty given to qi;ently accom]>anied with a direction that the plaintiff shall be at 
 liberty to except ; '^ but the liberty is sometimes qualified, so as to 
 protect the defendant from any particular discovery which he ought 
 not to be called upon to make.'' 
 
 1 Gilb. For. Rom. 94. the answer will be con«iiiered as a full 
 
 2 Ld. Red. 303; Tempest v. Lord Ca- answer, though not necos.sarilv a perfect 
 movs, 1 W. N. 16; 14 W. R. 326, M. R.; defeiue See McCoruiick v Ohsimherlin, 
 Pearse v Uobin'^on. L. R. 1 Kq. 241, V. C. 11 Paige. 543. 
 
 K.; Mills V. Hallv.'l W. N. 348; 15 W. 3 //^. 304 
 
 R. 86. V. C W.;"()rcutt v. Orms, 3 Paige, * Sell.ni v. Lewen, 3 P. Wms. 239. 
 
 461; Lube Kq. PI. 46; French ». Shotwell, ^ cke v. Wilcocks, Mos. 73; Ld. Red. 
 
 6 .Joim.Ch. 555; Hell v WondwMrd, 42 N. 304. 
 
 H 193, 196; .larvis r. Piilmer. 11 Paige, ^ See Glover v. Weedon, 3 Jur. N. S. 
 
 6.50; .Saiiy.er v. He Mever, 2 Paiire, 574; 903, V. C. S., wliere leave to amend was 
 
 Sf'Tv Kq. i'l. § 699; Leaycraft?). Dempsev, also given; anil see Seton, 1258, No 14. 
 
 4 Paige, 129; Hrooks t; SuttDn. L. R 5 Kq. ^ LJ. |{ed. 304; Aiardes v. Campbel, 
 
 361. If a plea is ordered to stand for an nuni).265; Br*^reton w. (iamul, 2 Aik. 241 ; 
 
 answer, it is allowed to be a sutHcient Pnsey v. Do-bouvrie, 3 1'. Wins. 315, 322; 
 
 answer to so mmli of the bilhis it covers, King v. Holconibe, 4 Pro. C. C. 439, 440; 
 
 un'e-s bv the order lil)eriv is given t" the Bavlcv v Adams, 6 Ves. 586, 599; I'earse 
 
 -' ■ ■■"'" ' ' ■ ■" ' '"■ ■ V. ■l)oi)ins().i, I,. R. 1 Kq. 241, V. C. K.; 
 
 S"ll -n V. Lewen, 3 P. Wins. 239; McCor- 
 
 ^_ . -, _ - „.., . mick i>. Chaniberlin,.ll Paige. 54-}; Ha~sett 
 
 John Ch 394; Meeker v. .Marsh. 1 Sax- v. Coinp;iny. 43 N. IL 254; Bell «. Wood- 
 
 piaiiitiff to except. Lrl. Red. 303; Kirby 
 
 r. T.n'lor, 6 .John. Ch 242; (Jrcutt v. Onus, 
 
 3 Paige, 459; (Joo'lrich v. I'endleton, 3 
 
 J'llinCh 394; Meeker j;. .Marsh. 1 Sax- _ , , 
 
 ton (X. J.), 198. In Orciitt i-. Orms, it ward, 42 N. H. 195, 196. 
 
 was said, by Chancellor Walworth, that
 
 OVERRULING PLEAS. 
 
 701 
 
 "When a plea has been ordered to stand for an answer, with lib- Ch. xv. § 8. 
 
 eity to except, the plaintiff must, if the Coui't does not fix a time — — r ^ 
 
 within which he is to except, file his exceptions within six weeks Time 
 from the date of the order : otherwise the answer will be deemed ^ "^® ' 
 sufficient.^ The proceedings upon the exceptions are the same as 
 those upon exceptions to answers in general,- 
 
 When a plea is ordered to stand for an answer, the question of Costs: 
 costs ought to be decided at the time the order is made, and a 
 subsequent application for them has been refused.^ It seems that, 
 generally, the defendant is ordered to pay the costs of the plea : * 
 though they have been made costs in the cause.^ 
 
 Section VIII. — Overruling Pleas. 
 
 If the Court, upon argument, is of opinion that the plea cannot, 
 under any circumstances, be made use of as a defence, it is simply 
 overruled, and the defendant is to pay to the plaintiff the taxed 
 costs occasioned thereby, unless the Coui't otherwise directs.® The 
 plaintiff may also, if the ]ilea has been to the whole bill, and the 
 defendant's time for answering the bill has expired, issue an attach- 
 ment for want of an answer,'' unless the defendant has obtained, 
 either from Court at the hearing, or from the Judge at Chambers, 
 an extension of time to answer : in which case, the attachment 
 must not be issued till the extended time for answering has ex- 
 })ired. The plaintiff may also, if he does not require an answer, 
 immediately file a traversing note, unless the Court has given time 
 to the defendant to answer: in which case if the defendant does 
 not file his answer within the time allowed, the j)laintilf may file 
 the note at the ex])iration of the time.** 
 
 The effect of overruling a j)lea is to impose upon the defend- 
 ant the nc'cessity of making a new defence. This he may do, 
 
 Effect of. 
 
 Plaintiff 
 may issue 
 attachment, 
 
 or file travers- 
 ing note. 
 
 Defendant 
 must make 
 new defence; 
 
 ' Ord.XVI.C; secEsdaile ». Molxneux, 
 2 C'<ll 041. A less time is frequently 
 fixed; pee ALinsell v. Feeney, 2 .J. & II. 
 313, where one week only was given. 
 
 ^ Vdv the |ira>tice, see post, Chap XVII. 
 § 4, /ixcf/itioris t'l Answers. 
 
 » Yainali v Ko-e, 2 Keen, 326. 
 
 * Howling /'. Butler, 2 iMiid. 245 ; Thomp- 
 son r. Wil.l. 6 .Mad. 82, 83; Mansell v. 
 Fecnf}', ubi sii/i. 
 
 ' Hunt r. I'enrice, 17 IScav. b2^>; 18 
 Jiir. 4. 
 
 6 (»rl. XIV. 12. 
 
 ■^ liinde, 224. As to overruling [ilea as 
 frivolous, "ee liowniiinv. .Mar'<hall, 9 I'aige, 
 "6; 1 Karb. Ch. I'r. 123. In .Miissadiu- 
 •etts, " if n plea is overruled, no other plea 
 
 shall be received, but the defen<lant shall 
 proceed to answer the plaintifl"s bill; and 
 if he shiill fa:l to do so wi.hiii one 
 mouth, the plaintilf may enter an order 
 that the same, or sn nuicii llieieof as is 
 covered b}' the ()leii, be taken for confessed ; 
 and the matter thereof may be decreed 
 accordingly, unless good c;iuse appear 
 to the coiitrary." Kule 12 of the h'ulus 
 for Practice in Chanceiy. Under Kulc 13, 
 it is provided, that " ujjon a plea being 
 ovei ruled, or adiiid;;ed good, the parly pre- 
 vailing upon the question sha!l recover 
 full costs from the tune of liling such pb'a, 
 unless the (Jourt shnll otherwise s|)ecially 
 order." 
 
 » Ord. XIII. 4; ante, p. .015.
 
 '0-2 
 
 PLEAS. 
 
 Tit. XV. ^ S. 
 
 by demurrer: 
 
 by partial 
 demurrer ; 
 
 but not by 
 ore ienus ; 
 
 br second 
 plea. 
 
 oitluT by a lu'w ]>U':i, or by an answer; and tlio ])rocoo<lin_c^s 
 uiioii tin' nrw ilrtriicc will bo (ho same as if it had bocii originally 
 made.' 
 
 It is said, in some of the books ot" iiractiee, that alter a ])lea has 
 been overruled, a new defence may be made by demurrer; and, in 
 IVie J'Jattt India Company v. Campbel^^ such a demurrer (which 
 was upon the ground that the discovery would subject the defend- 
 ant to pains and })enalties) was ])ermitted. It is to be recollected, 
 however, that this occurred under the old practice, un<ler which, 
 provided a defendant was not in contempt, or had not obtained 
 an order for time, he might have put in a demurrer at any time ; 
 but, under the present practice, this would be nearly im])ossible, 
 unless by special leave of the Court : since twelve days only, from 
 a})pearance, are allowed to a defendant to demur alone to any 
 bill,* A demurrer to part of the bill may, however, still be put in, 
 in cases where the whole time allowed by the orders to plead, 
 answ^er, or demur, not demurring alone,* has not elapsed at the 
 time of the plea being overruled ; or where an order for additional 
 time for the same purpose has been obtained. But under an order 
 for time to answer alone, such a defence cannot, it is apprehended, 
 be put in.^ 
 
 We have seen before that, after a plea has been overruled, a 
 defendant cannot demur ore tenus.^ 
 
 The rule with regard to pleading again, nmst be understood 
 with this qualification, namely, that the second plea must not be 
 upon the same ground as the first ; '' therefore, it is held that only 
 one ])lea to the jurisdiction can be allowed.^ And so, where, to a 
 bill to set aside an agreement and release, stating circumstances 
 of fraud and duress, the defendant pleaded the agreement and 
 release to the whole bill, without denying the fraud and duress, and 
 the plea was, upon that ground, overruled, whereupon the defendant 
 put in another j^lea, insisting upon the same rcileasc as a bar to the 
 relief, and also to so much of the discovery as related to trans- 
 
 1 On overruling a plea, leave was given 
 to the (lefeiidant to plead de novo, and to 
 plaintiff' to amend his bill, (jliadwiciv v. 
 liroadwood, 3 I5eav. 316. 
 
 2 1 Ves. S. 240. 
 
 8 Ord. XXXVII. 3; ante, p. 691. 
 
 4 Ord. XXXVII. 4, 5. 
 
 6 Brooks v. I'urtnn, 1 Y. & C.C.C. 278; 
 Hunter v. I\ocko;ds, 2 I'hil. 540, 544; 12 
 Jur. 149; ante, p. 690. 
 
 6 Ante, p. 5b8. 
 
 7 Where a plea has been overruled on 
 the merits, the .-ame matter cannot be .set 
 up in the answer, as a bar to the suit, with- 
 out the special pennission ot the Court. 
 Towiishend v. Townshend, 3 Paige, 413; 
 see Goodrich v. I'endleion, 4 Jouu. Cli. 
 
 549; Coster v. Murray, 7 John. Cli. 167; 
 Bush V. Bush, 1 Strobh 377 ; Piatt w. Oliver, 
 1 McLean, 295; Kinggold v. Stone, 20 Ark. 
 526. 
 
 8 VVyatt's P. R. 325. It is said, in the 
 same work, p. 330, that if outlawry or other 
 matter be pleaded, and the plea is over- 
 ruled, no other plea sh.dl be after plemled; 
 but the delcndant niu-'t answer. This, 
 however, must be meant to apply to other 
 pleas of the same matter; see Rowley v. 
 Eccles, 1 S & S. 611, 513, where Sir .John 
 Leach V. C. appears to have held, that 
 after a [dea is overruled, a defendant can- 
 not put in a second plea without leave of 
 the Court.
 
 AMENDING PLEAS, AND PLEADING DE NOVO. 
 
 703 
 
 actions prior to the agreement, accompanied by an answer as to Cn. XV. § 9. 
 the circumstances of fraud and duress, this was held to be 
 irresrular.^ 
 
 Section IX. — Amending Fleas, and Pleading de novo. 
 
 It sometimes happens, that where there is a material ground of 
 defence disclosed in the plea, but owing to some evident slip or 
 mistake, the plea has not been correctly framed, the Court, in this 
 respect following the Courts of Law, will exercise a discretion in 
 allowing the plea to be amended.^ Thus, where a plea, which 
 in substance showed a defect of parties, instead of stating that 
 additional parties were necessary and naming them, prayed judg- 
 ment whether the defendant ought to be called upon for further 
 answer. Lord Erskine, upon the argument, instead of overruling 
 the plea, on the ground of informality, gave the defendant leave to 
 amend it.^ And so, Avhere an error in a plea of outlawry was 
 occasioned by the Clerk of the Outlawries, who, instead of a copy 
 of the record of the outlawry, or of the capias utlagatum, gave a 
 certificate of the outlawry, which was annexed to the plea, the 
 Court allowed the defendant to amend liis plea, by annexing to it 
 a copy of the exigent, or record of the outlawry.^ And so, where 
 the Court of Exchequer thought that the negative averments in a 
 plea were too special and precise, the same matter being also 
 denied by the answer in support of the plea, they gave the defend- 
 ant leave to amend his j)lea by striking out the special averments.^ 
 It has, however, been held, that leave to amend a plea should not 
 be given when it is sup])orted by an answer.^ A short time is 
 generally limited, within which the amendment must be made. 
 
 It has also hap])ened, that where a plea has offered a substantial 
 defence, Init has been so informally pleaded that it would be dif- 
 ficult or iinj»f»ssiljle to amend it, the Court, instead of allowing 
 the deien<lant to amend his plea, has given him leave to withdraw 
 it ultogetlier, and plead de novo within a given time.'' 
 
 in the Courts; .Jefferson v. Ciillis, 4 Dana, 
 467; Hnd depends upon tlie f^dinl faith anil 
 rc:isonableni-s8 of the urif^inal case, iind 
 the e(|uitablenes.s nf the jirupcj.sfd linicinl- 
 nient. bee (irahain I'ruc. (2d ed.) U4U- 
 070. 
 
 3 Merrewether v. Mellisli. 13 Ves. 435; 
 Sergrove v. Mavliew, 2 M. & G. 97, 09. 
 
 ■• Waters v. Mayliew, 1 S. & S. 220,224; 
 ante, p. 088. 
 
 ' I'ope V. Hi.sh, 1 Anst. 59. 
 
 <> Th()nip>on v. Wild, h Mad. 82. 
 
 7 Ni>l)ki.ssen v. Ila.'.tingM, 2 Ves. .J. 84, 
 87; 4 bro. C. C. 208; Walkins v. Stone, 2 
 
 When 
 permitted 
 
 Not where 
 supported by 
 answer. 
 Time 
 allowed. 
 
 Pleading de 
 novo. 
 
 1 Frr-eland v. Johnson, 1 Anst. 270; 2 
 Anst. 407. 
 
 ■^ Hoinies (Ml 1'loii.s, 321; see Meeker v. 
 Marsh, 1 .Siixton (N. J.), 198; Xcwl. Ch. 
 I'r. 121; Leavcratt v. Denipscy, 4 Pai^e, 
 126; 15.11 V. \V(,i.dw;ir.l,42 N. II. 181, IHO; 
 Story K(|. i'l §§ 894-890; Smith v. Bab- 
 ci ck", a >iimnfr, M'i; 1 Smith Ch. I'r. (2d 
 Am. e(l.)2y8, 'i'M\ Newman v. \Viilli.>t. 2 
 Hro. C. C. (I'erknis's ed.) M7, note (c), 
 and cascH cited. Amendments are in the 
 discretion oC the Court. Smith t). Uabcock, 
 3 .Sumner, 68.'{; but their di.Hcretioti, in 
 this respect, is regulated by rules known
 
 704 
 
 PLEAS. 
 
 Cn. XV. § 0. 
 
 Leave to 
 amend in 
 what manner 
 obtained. 
 
 Not per- 
 mitted, after 
 Elea has 
 een once 
 amended. 
 
 Costs. 
 
 T.ilxMty to nnu'Tid, or lo pleiul de novo, liowevor, will only be 
 oranli'il in (.•uses wlii'ic thciv is :u\ ;i])j)aivnt good ground of 
 di't'i'iu'o disclosod Ity tlii' |iK':i, but owing to some accident or mis- 
 take, it has been informally pleaded : where a substantial ground 
 oi' defence has been omitted, such permission will not be given. 
 Thus, in Ji^reclioul v. Johnson,^ where the bill sought to set aside 
 an agreement and release, stating circumstances of imposition and 
 equitable duress in obtaining them, and the defendant put in a 
 plea of the agreement and release to the whole bill, without 
 denying the fraud or duress, either by averments or by answer, 
 the Court of Exchequer refused to give the defendant leave to 
 amend. 
 
 Although, where the error is very pali)able, the Court will give 
 the defendant leave to amend at the argument of the plea, the 
 most usual course is for the defendant to move subsequently for 
 leave to amend his plea. This form of proceeding is rendered 
 necessary by the circumstance, that the Court always requires to 
 be told precisely what the amendment is to be, and how the slip 
 happened, before it will allow the amendment to take place ; and 
 this must, in general, be done by affidavit in support of the 
 motion.^ In The Nabob of Arcot v. The East India Company^ 
 Lord Thurlow refused to entertain the question, whether the plea 
 might be amended or not upon the argument, because no motion 
 had been made on the subject; and he said that he should expect 
 that, whenever such a motion should be made, the form of the 
 plea intended to be put in should be laid before the Court : for 
 amendments, when moved, ought to be stated, that the Court 
 may see Avhether it is material that the cause should be delayed 
 for the purpose of admitting them. It is to be remarked, that at 
 a subsequent period, after the plea in the above case had been 
 overruled, the defendants ajtplied by motion for leave to amend 
 the plea, or to plead anew, but that the Lord Chancellor refused 
 the motion on the ground, as appears from the marginal note of 
 one of the reporters, that the plea had been amended before.* 
 
 With respect to the costs to be paid by the plaintiff, upon the 
 
 S & S. 5G0, 573. On overruling a plea, 
 leave wa'^ given to defendant to plead rfe 
 novo, and painlitl' to amend liis bill. Gliad- 
 ■wick f. JJroiidwodd, 3 He:iv. 31(j. A de- 
 femliint in a IjiII ot' revivor cannot plead 
 to the original bill a plen wliicli has been 
 jdeadfd IjV tlie original det'iMidant sind 
 overruled. iJows i\ MciMichael, 2 Piiige, 
 245; Snuzer v. DeMeyer, 2 I'aige, 574; 
 but if a plea hii.s been put in, and the 
 original Hlel'etid:int lias dieil before argu- 
 ment, the defendant to a bill of revivor 
 may ple;id the sunie matter (h novo. 1 
 
 liarh. Ch. Pr. 125; 1 Hoff. Ch. Pr. 389; 1 
 Smith (Jh. Pr. (2d Am ed.) 229. 
 
 1 1 Anst. 270; 2 Anst. 407, 411; and 
 see Hewitt v. Hewitt, 11 W. R. 849, V. 
 C. K. 
 
 2 Newnmn v. Wullis, 2 Bro. C. C. 143, 
 147; Wvatt's P. K. 340; Wood v. Strick- 
 land, 2 V. & IJ. 150, 157 ; Jackson v. Kowe, 
 4 ItusR. 514, 524. 
 
 a 3 Hro. (J. (J. 292. 300; S. C nom. The 
 Nabob of the Cariialic v. The liast India 
 Compiinv, 1 Ves .1. 371, 388. 
 
 * 1 Ves. J. 372, 393.
 
 AMENDIXG PLEAS, AND PLEADING DE NOVO. 705 
 
 allowance of an amended plea, Sir James Wigrara V. C. decided, Cn. XV. § 9. 
 in the case of Clayton v. Meadows^ that the defendant is not 
 entitled to the costs of correcting his own mistake, bvit he is 
 entitled to the costs which he would have had, if the plea which 
 was allowed had been the plea which was first filed. 
 
 1 2 Hare, 26, 33. 
 
 45
 
 CHAPTER XVI. 
 
 DISCLAIMERS. 
 
 What a dis- 
 claimer is. 
 
 In what cases 
 proper. 
 
 Costs, if not 
 put in, in 
 proper case. 
 
 Must in 
 general be 
 accompanied 
 by an answer. 
 
 Defendant 
 cannot ilis- 
 claiin a 
 liability. 
 
 A DISCLAIMER IS, whevG a defendant denies that he lias or cLaims 
 any right to the thing in demand by the plaintiff's bill, and dis- 
 claims, that is, renounces, all claim thereto.-^ 
 
 It has been before stated, that Avhcre a person who has no in- 
 terest in the subject-matter of the suit, and against whom no relief 
 is prayed, is made a party, the proper course for him to adopt, if 
 he Avishes to avoid the discovery, is to demur, unless the bill states 
 that he has or claims an interest : in which case, as a demurrer, 
 which admits the allegations in the bill to be true, will not of 
 course hold, he should, except in cases of partial discovery (to 
 which, as will be presently shown, he may object by answer), avoid 
 putting in a full answer, by plea or disclaimer.^ Therefore, where, 
 instead of disclaiming he supported the plaintiff's case, but was 
 held not entitled to any part of the relief given to the plaintiff, he 
 was left to bear his own costs.^ 
 
 A disclaimer, however, cannot often be put in alone : for although, 
 if a plaintiff, from a mistake, makes a person a party to a suit who 
 is in no way interested in or liable to be sued touching the matters 
 . in question, a simple disclaimer by such person might be good, 
 yet, as it is possible that the defendant may have had an interest 
 which he may have parted with, the plaintiff has a light to require 
 an answer, sufficient to ascertain whether that is the fact or not ; 
 and if a defendant has had an interest which he has parted with, 
 an answer may also be "necessary to enable the plaintiff to make 
 the proper person a party, instead of the defendant.* 
 
 A defendant cannot shelter himself from answering, by alleging 
 that he has no interest in the matter of the suit, in cases where, 
 though he may have no interest, others may have an interest in it 
 
 1 "Wyatt's P. R. 175; Story Eq. PI. 
 § 8-38 et seq. ; Bentley v. Cowman, 6 Gill 
 & J. 1.52. 
 
 2 Ante, p. 284. A defendant may also, 
 in a suit, disclaim by his counsel at the 
 bar. Teed v. Carruthers, 2 Y. & C. C. C. 
 31, .38; .Tur. 987. It seems doubtful 
 whether lie can by such a disclaimer, in 
 the case of a petition under the statutory 
 
 jurisdiction, divest himself of an estate in 
 'lands; see lit Ellison, 2 .Jur. N. S. 62, V. 
 C. W. ; Poster v. Dawber, 1 Dr. & Sm. 
 172. 
 
 3 Rackham v. Siddall, 1 M'N. & G. 607, 
 62.5. 
 
 4 Ed. Red. .318; Oxenham v. Esdaile, 
 M'L. & Y. 540.
 
 DISCLAIMERS. 
 
 707 
 
 against him : he cannot disclaim his liability ; ^ therefore, a party Ch. XVI. 
 to an account cannot, by disclaiming an interest in the account, " y ^ 
 protect himself, by such disclaimer, from setting out the account.^ 
 Nor, when the bill seeks to charge the defendant with the costs of 
 the cause, can he, by disclaiming all interest in the subject of the 
 suit, evade giving a discovery of those fxcts by which the plaintiff 
 seeks to substantiate his charge.^ So, if fraud is charged against Disclaimer 
 the defendant seeking to disclami, and mterrogatones have been ^,.1^^.,.^ j^^ud 
 filed, a disclaimer alone is insufficient, and an answer must be given J^^'j^^^^^^- 
 to the imputed fraud ; * and it seems that, in such a case, although defiiuiant a 
 no personal decree can in general be made against a married ^'^^^''^ 
 woman, still she must answer fully : though it does not seem clear 
 how far her answer can ultimately be used as evidence against her.^ 
 
 It is to be observed also, that a disclaimer by one defendant Disclaimer 
 cannot, in any case, be permitted to prejudice the plaintiff's right (|{f°n(iant 
 as against the others : and, therefore, where a bill was filed against cannot preju- 
 the lessees of tithes, under a parol demise, tor an account, and the against 
 lessor, who was made a defendant thereto, disclaimed, the dis- others; 
 claimer of the lessor was not permitted to prejudice the rights of 
 the plaintiff against the lessees, and a decree was made against 
 them : although the plaintiff had, upon the disclaimer coming in, 
 himself dismissed the bill against the lessor with costs.^ Where a and whore he 
 defendant claims any rights against his co-defendants, though not a|arnst"l- 
 ao-ainst the plaintiff, he should reserve such rights by his dis- defendants, 
 
 o 1 ■ ' . 1 , 1 /^ •!! 1 1 he should 
 
 claimer : for if his disclaimer is absolute, the Court will only de- reserve them 
 termine the rights and interests of the other parties ; and will not ^{^I'^J^^' 
 considfr any question which may arise between him and his co- 
 defendants." 
 
 Though a disclaimer is, in substance, distinct from an ansAver, Form, 
 yet it is, in point of fonu, an answer, containing simply an asser- 
 tion that the defendant disclaims all right and title to the matter 
 in demand ; and in order to entitle the defendant to be dismissed 
 with costs, the disclaimer should state that the defendant " does 
 not and never did claim, and that he disclaims, all right and title 
 in the subject-matter of the suit.'"* Lord Redesdale observes, 
 
 1 A defendant cannot by disclaiininf,' non, 2 Y. & C. C. C. 370; 7 Jur. 548; and 
 de))rive the plaintifV of (lie rJKht torc(|uirc • aiilf, p. 185. 
 
 a full unswiT Ironi liini, unless it is evident 6 \\ iHianis v. Jones, Younfje, 252, 255. 
 
 that tin- di'fcndaiit .--hould not, alter the 7 .Jolly r. Arhuthnot, 4 De G. & .J. 224; 
 
 disclainiir, he .onlinucd a parly to the 5 Jur. >!. S. G8!i; 20 lieav. 283; 5 Jur. N. 
 
 Buit. Ell.sworth v. Curl is, 10 Paige, 105. S. 80. 
 
 2 GliLssington v. Thwaites, 2 Uuhs. 458, » Valc v. Mcrideth, 18 Jur. 092, V. C. 
 462; De lieauvoir v. Khodes, cited 3 M. & AV. A defendant having the same nitercst 
 C. 643. as tlie plaintilf, should, if he disa]>prove of 
 
 « Graham r. Toapc, 3 M. & C. 038, the suit, distinctly repudiate it : olhcrwise, 
 
 643; !) Sim. !)3, 103. t\i<- hill niav he dismissed as against him, 
 
 < JJulkelcv /•. Dunbar, 1 Anst. 37. williout r.,sts, and with costs as against 
 
 « Whiting r. Hush, 2 Y. & C Ex. 540, the other defendants. Wiuthrop r. Mur- 
 
 652; I'emlxrton r. M'tiill, 1 Jur. N. S. ray, 14 Jur. 302, V. C. Wigram. 
 
 1045, V. C. W. ; and see Silcock v. Hoy-
 
 708 
 
 DISCLAIMERS. 
 
 (11. \VI. 
 
 Other 
 requisites. 
 
 Exceptions to 
 disclaimer. 
 
 Plaintiff 
 should not 
 reply to dis- 
 claimer, but 
 may to plea 
 or answer 
 coupled 
 with it. 
 
 that in some instaiu-os, from llie iiatuio of tlio case, a sim))lo tlis- 
 clainn'i- may perhnjis 1)C siiffioicnt, but that (he forms given in tlie 
 books ofin-aolice are all of an answer and diselainier.^ 
 
 A disclaimer may, by order, be liled Avithout oath, bnt not with- 
 out oath and signature. The order is obtained on motion or pe- 
 tition of course.- If the defendant ap])lies by motion, the consent 
 of counsel for the plaintift' is necessary, and if the defendant pe- 
 titions, the written consent of the |»laintirt' must be subscribed 
 thereto.' Where the plaintift' ai)i)lies, whether by motion or 
 petition, no consent by the defendant is required,* The application 
 by a defendant is usually, if not invariably, made by petition. 
 Where the disclaimer is put in without oath, the signature of the 
 defendant must be attested by some i)erson competent to be a 
 witness.^ 
 
 The disclaimer must be signed by counsel ; " and it must be 
 sworn, filed, and printed, and an office copy taken in the same 
 manner, and within the same time, as an answer.'' 
 
 If a defendant puts in a disclaimer Avhere he ought to answer, 
 or accompanies his disclaimer by an answer w^hich is considered 
 insufficient, the plaintiff may take the ojnnion of the Court upon 
 its sufficiency, by taking exceptions to it, in the same manner as 
 to an answer.^ If, however, instead of applying in the first in- 
 stance to the Court, by motion, to take the disclaimer off the file, 
 the plaintiff delivers exceptions, he will be precluded from after- 
 w^ards moving for that purpose.^ 
 
 Where a defendant puts in a general disclaimer to the whole 
 bill, tlie plaintiff ought not to reply to it : ^° for then the defendant 
 may go into evidence in support of it." In a case where the 
 plaintiff replied, the defendant was allowed to have his costs taxed 
 against the jdaintiff for vexation.^-^ It is otherwise, however, where 
 the disclaimer is to part, and there is an answer or plea to another 
 part of the same bill : in such cases, there may be a replication to 
 such plea or answer.^^ 
 
 .1 Ld. Red. 319; see forms in Vol. III. 
 A di.sclaiiner should be full and explicit in 
 all respects. Worthington v. Lee, 2 Uland, 
 678. 
 
 2 For form of order on motion, see Paw- 
 gon V. Smith, cited Seton, 1254. 
 
 3 Braithwaite's I'r. 47, 57. For forms of 
 motion paper and petition, see Vol. III. 
 
 4 Braithwaite's I'r. 47, .57. 
 
 5 Jb. 48. For form of attestation, see 
 Vol. III. 
 
 6 Ord. VIII. 1. 
 
 7 See/)o«<, (Jhap. XVII. § 3, Answers; 
 Braithwaite's Pr. 57, 491. 
 
 8 Glassin},'ton v. Thwaitcs, 2 Russ. 458, 
 463; liulkelcv v. l)uiil)ar, 1 Anst. 37; 
 Graliam v. Coape, 3 M. &, C. 038 ; 9 Sim. 
 
 90, 103. But it has been held that where 
 a simple disclaimer is tiled, a plaintiff who 
 is entitled to an answer must move to take 
 the disclaimer off tlu' tiles, and he cannot 
 except; but if the disclaimer is accom- 
 panied by an insutHcient answer, the 
 plaintiff .should except to the answer. 
 Ellsworth V. Curtis, JO Paige, 105. 
 
 '■> (ilassington v. Thwaites, ubi supra, 
 4CI. 
 
 i« Spofford V. ISIanning, 2 Edw. Ch. 
 350. 
 
 11 See (he observations of Sir .John 
 Roniily M. li. in Ford v. Lord Chester- 
 field, 10 Beav. 520. 
 
 12 Williams v. Longfellow, 3 Atk. 582. 
 18 Ibid.
 
 DISCLAIMERS. 
 
 709 
 
 The course to be pursued by the plaintiff, after a disclaimer to 
 the whole bill has been filed, is either to dismiss the bill as against 
 the party disclaiming with costs, or to amend it ; or, if he thinks 
 the defendant is not entitled to his costs, he may set the cause 
 down upon the answer and disclaimer, and bring the defendant to 
 a hearing.^ 
 
 Where a defendant had occasioned the suit, in consequence of a 
 claim to the fund set uj) by himself, which he refused to release or 
 to verify, and afterwards put in a disclaimer, stating in his answer 
 the facts upon which he had supposed himself to be entitled, as a 
 ground for his not being ordered to pay the costs of the suit, which 
 were prayed against hhn, in consequence of which the plaintiff ex- 
 amined a great number of witnesses to falsify such statement, but 
 no witnesses were examined by the defendant : Sir Lancelot Shad- 
 well V. C. ordered him to pay the Avhole costs of the suit, as well 
 the plaintiff's costs as the costs which the plaintiff was ordered to 
 pay to the co-defendants.^ 
 
 It is to be remarked, that a defendant cannot, by answer, claim 
 that to which, by his disclaimer, he admits he has no right ; and 
 if a disclaimer and answer are inconsistent, the matter will be taken 
 most strongly against the defendant on the disclaimer;' 
 
 If a defendant puts in a disclaimer, and afterwards discovers 
 that he had an interest, which he was not apprised of at the time 
 he disclaimed, the Court Avill, upon the ground of ignorance or 
 mistake, permit him to make his claim. It will not, however, allow 
 a defendant to do so at tlie hearing of the cause : he must, in order 
 to get rid of the effect of his disclaimer, make a distinct application, 
 supi)orted by affidavit, setting forth the fact in detail on which he 
 founds his claim to such an indulgence;^ and it seems that the 
 Court will expect a strong case to be made out, before it Avill grant 
 the application.^ 
 
 If the defenilant takes no steps to get rid of the effect of the 
 disclaimer, he will be for ever barred : because it is matter of 
 record." 
 
 Questions of some nicety arise in suits for foreclosure, and in 
 other-suits of a similar description, for establishing equitable claims 
 or demands against real or personal estate, as to the right to costs 
 of persons made defeudajits in consequence of rights or interests 
 which they might have in the estate, subject to those of the plain- 
 tiff, so that his title cannot be complete without their co-operation, 
 
 Cn. XVI. 
 
 Defendant 
 ordered to 
 pay the v.-hole 
 costs of the 
 suit. 
 
 When 
 answer and 
 disclahner 
 inconsistent. 
 
 Of withdraw- 
 ing a dis- 
 claimer. 
 
 Disclaimer 
 an absolute 
 bar. 
 
 (^ists of dis- 
 claiming de- 
 fendants, in 
 foreclosure, 
 and other 
 suits; wiion 
 allowed; 
 
 1 Oasli r. ISelcher, 1 Hare, -TIO, .•!!;(; 
 Railcy r. I.aniliert, 5 Hare, J78; 10 .lur. 
 KW); Wiggiiigtoii r. I'alcman, I'i .lur. 811, 
 V. C. K.; VVyatfs I'. K. 17(J; llindc, 2()!(. 
 
 2 Deacon »'. Dea<on, 7 Sim. .178, .'IS^; 
 Kcc llutcliinson v. Keed, 1 lloll. Cli. -ilb. 
 
 3 Ld. Red. .120. 
 
 ■1 Sidden V. Lediard, 1 R. & M. 110. 
 6 Seton V. Slade, 7 Yes. 2(1.'), 2(17. 
 6 Wood j;. Taylor, 3 W. K. Ml; 3 Eq. 
 Rep. 513, V. C. K.
 
 710 
 
 DISCLAIMERS. 
 
 Til. XVI. 
 
 when not 
 allowed. 
 
 Allowed, 
 where false 
 statement of 
 application 
 in bill. 
 
 Costs of 
 ssiffnees. 
 
 h\\{ ^vl^K■h riojlits or iiitoix'sts lli(>y :il)S()lutcly disclaim. When :v 
 (loli'iulant stairs in liis disclaiimT tlial lu' iicviT had, and never 
 claimed, any right or interest in the subject-matter of the suit iit 
 or atler the filing of the bill, he is entitled to be dismissed with 
 costs.-' 
 
 Where a defendant simply states that he does not claim any 
 right or interest, he will be dismissed without costs ;^ but if, before 
 biU fded, he ofters to release his claim, or, after bill filed, to release 
 his claim, and consent to the bill being dismissed, as against him, 
 without costs, he will, if the offer be refused, and the plaintiff still 
 retain him as a party to the record, be entitled to be dismissed 
 Avith his costs, incurred subsequently to the offer.^ And it seems 
 that the plaintiff is bound to bear the exjiense of the release.^ 
 
 AVhcre the plaintifi' stated in his bill that, before the institution 
 of the suit, he had applied to the defendant to release his claim, 
 but the defendant refused to do so, and the defendant disclaimed 
 and denied that any such ai)})lication was made to him, and stated 
 that if it had been made, he would have released his interest. Sir 
 John Stuart V. C. held that he was entitled to his costs.''* 
 
 It may be here observed, that in questions of this description, 
 there is no difference between the right of an assignee in bank- 
 ruptcy and that of the party whose interest he represents.'' 
 
 1 Silcock V. Roynon, 2 Y. & C. C. C. 
 37G; 7 Jur. 548; Iliorns u. Holtom, 16 Jur. 
 1077, 1080, M. It. ; Gabriel v. Bturgis, 5 
 Hare, 97, 100; 10 Jur. 215; Teed v. Car- 
 ruther.s, 2 Y. & C. C. C. 31, 41; G Jur. 
 987; Benbow v. Davies, 11 Ikav. .369; 
 Glover v. Rogers, 11 Jur. 1000, M. R. ; 
 Higgins V. Frankis, 15 Jur. 277, V. C. K. 
 B.; Vale v. Merideth, 18 Jur. 992, V. C. 
 "W. ; Ford v. Lord Chesterfield, 16 J5eav. 
 516, .520; see, cvnlra, Buchanan f. Green- 
 ■\va}-, 11 Beav. 58. Where disclaiming 
 defendant, a satisfied judgment creditor, 
 had not entered up satisfaction, he was not 
 allowed his costs. Thompson v. Hudson, 
 34 Beav. 107. For forms of decree against 
 disclaiming defendants, in foreclosure suits, 
 see Seton, 395. 
 
 2 Cash V. Belcher, 1 Hare, 310, 312; 
 Tipping V. Power, ib. 405; Grigg v. Stur- 
 gis, 5 Hare, 93, 96; 10 Jur. 133; Ohrly v. 
 Jenkins, 1 L)e (i. & S. 543; II Jur. 1001; 
 Gibson v. Xicol, 9 Beav. 403, 406; 10 Jur. 
 419 ; Ford v. Lord (,'hesterlield, uhi mp. ; 
 Appleton V. Sturgis, 10 W. R. 312, V. 
 C. S. ; Vale v. Jleredith, vin sup.; Fnr- 
 ber V. Furber, 30 Beav. 523; Durham 
 t'. Crackles, 8 Jur. N. S. 1174, V. C. W. 
 Where the defiiudant was not content 
 simply to disclaim, but put in an answer 
 
 and appeared for the purpose of claiming 
 his costs, it was held that he was not enti- 
 tled to any costs. Maxwell v. Wightwick, 
 L. R. 3 Eq. 210. 
 
 3 Ford V. Lord Chesterfield, tibi sup. ; 
 Lock V. Lomas, 15 Jur. 102, V. C. K. B. ; 
 Talbot V. Kemshead, 4 K. & J. 93; Bel- 
 lamy V. Brickeuden, ib. 070; Bradley v. 
 Borlase, 7 W. R. 125, V. t;. K. ; Ward 
 V. Shakeshaft, 1 Dr. & Sm. 269; Dillon v. 
 Ashwin, 10 Jur. N. S. 119; 12 W. 11. 360, 
 V. C. K. ; Ridgway v. Kynnersley, 2 11. 
 & M. 505; Howkins J'. Bennet, ib. 507, n.; 
 Fogg V. James, ib. 508, n. ; Clarke v. Kaw- 
 lins," 1 W. N. 332, V. C. W. ; Maxwell v. 
 Wightwick, 1 W . N. 379, V. C. \V. ; but see 
 (iowing V. Mowl)errv, 9 Jur. N. S. 844; 
 11 W. R. 851, V. C". S. ; Davis v. Whit- 
 more, 28 Beav. 617; 6 Jur. N. S. 880. 
 
 4 I'urber v. Furber, 30 Beav. 523, 525. 
 6 (iurney v. Jackson, 1 Sm. & G. 97; 
 
 17 Jur. 204; see, however, observations of 
 the M. II. on this case, in Foi'd v. Lord 
 (.'hesterlicid, vbi sup. ■ 
 
 « Grigg V. Sturgis, 5 Hare, 93, 96; 10 
 Jur. 133; sec also ('ash v. Belcher, 1 Hare, 
 310, 312; Appleby v. Duke, 1 Phil. 272, 
 275; 7 Jur. 985; Clarke v. Wilmot, 1 
 Phil. 276; Stafiurth v. Pott, 2 De G.& S. 
 571.
 
 CHAPTER XVII. 
 
 ANSWERS. 
 
 Section I. — General Nature of Answers. 
 
 The iinsAvcr of a defendant consists of such statements, material 
 to liis case, as he may think it necessary or advisable to set forth ;^ 
 and, if inteiTOgatories liave been filed for his examination, of his 
 answers to them ; ^ or, if he has put in a demurrer or plea, to such 
 of them as relate to the parts of the bill not covered by such de- 
 murrer or plea. If no interrogatories have been filed, the answer 
 is called a voluntary answer.^ 
 
 This twofold character of an answer is peculiar to pleadings in 
 Equity, and is not found even in those that are formed on the same 
 model in the Civil and Ecclesiastical Courts: the answer which 
 the defendant is required to make, upon oath, to the allegation 
 and articles being, in those Courts, a wholly distinct instrument 
 from the responsive allegation which contains the defence.^ 
 
 An answer 
 consists of 
 statements 
 material to 
 defendant's 
 case and his 
 answer to 
 plaintiff's in- 
 terrogatories, 
 if any. 
 
 Twofold 
 character of 
 answers, 
 peculiar to 
 Equity. 
 
 1 15 & 16 Vic. c. 80, § 14. 
 
 2 Ihiil.; see Story Eq. 1*1. § 850; Ld. 
 Red. 15, 10. 
 
 8 An answer is the most usual method 
 of defence to a bill in Chancery. It may 
 be put in to the whole bill, or to such parts 
 of it as are not covered by plea or de- 
 murriT. As it is capable of embracing 
 more circumstancos than a plea, it may for 
 this reason be used with much j^nater pro- 
 priety in cahcs where the defendant is not 
 anxious to prevent a discovery, aUhouRh 
 the plea mi;;iit be a compleli' bar. l>ut 
 where, by introdnciii;; additional circum- 
 stances, "he has a j;ood opiiortunity of 
 cxliibitlnK his ca^e in a more favorable 
 lipht, the an^wer is the liest mode of 
 defence. 1 Barb. VA\. Pr. i;)0; see Youie 
 V. Hicliards, Saxton (N. .1.), 5.'J4. When 
 a defendant makes Iiis defence by answer 
 he must set up all the various grounds of 
 defence u|iom which he intends to rely. 
 Warren r. Warren, .'iO \'t hW. 
 
 In New Hampshire, by l{ule 5 of ('han- 
 rery I'ractii-e, :!S N. if. OOO, "Answ<TS 
 shall be entitled with tlie county in the 
 marf^in; the style of the Court; the title 
 of the cause, that is, the name of the lirst 
 
 plaintifl", '& a,' if more than one; and the 
 name of the first defendant, '& a,' if more 
 
 than one; and 'the answer of ,' the 
 
 party making it, — in substance as fol- 
 lows : — 
 
 "R , ss. In the Supreme Judicial 
 
 Court. 
 
 A. B. tSj a. V. C. D. & a. 
 "The answer of C. D." 
 
 "The clause in answers, reserving ex- 
 ceptions, and the protestations in answers, 
 and the connnon concluding clause in 
 answers, denying combination, and the 
 general traverse, shall be omitted. Kule 
 G of Chancery Practice in N. llamp. And 
 the "idle reyjctitions, 'tills defendant 
 further answering, sailli,' and the like in 
 answers, shall be omitli'd. Where (he 
 nann's of jiarties [defendants] are omitted 
 they shall be referred to as diJ'iiKhnits." 
 Rule 7. 
 
 For forms of answer, see Vol. III. 
 
 * Hare on Disc. 22.i; .'J l!Ia. Com. 100. 
 A defendant cannot pray any thing in his 
 answer but to be (lismissed the Court. 
 Miller v. Gregory, 1 C. K. Green (N. J.), 
 '274.
 
 ANSWERS. 
 
 C. XVll. 5 1. 
 
 Statenu'iit of 
 
 ilot'i>inl;iiil's 
 
 cusu. 
 
 Old rule is 
 niiicli re- 
 laxed, where 
 no answer 
 required or 
 put in. 
 
 Defence of 
 Statute of 
 Frauds, or of 
 Limitations, 
 allowed to be 
 set up by 
 evidence, or 
 orally at the 
 hearing; 
 but defence of 
 purchaser for 
 value, with- 
 out notice, 
 rejected at 
 hearing, 
 where not set 
 up in answer 
 to interrog- 
 atories. 
 
 Defendant is 
 not bound to 
 state the con- 
 clusions in 
 Law deduci- 
 ble from facts 
 set out; 
 but cannot 
 use facts to 
 establish a 
 different 
 
 AltliotiL!;h an answer has, in general, the twolohl i)r()])erty above 
 stated, it is seUloni jiossiljle, in training; one, to kee}) the ])arts sep- 
 arate trom each other: thongh, Avlien it is praetieable to do so, 
 sueh a course is generally desirable. It is, however, of great im- 
 portance to the pleader, in preparing an answer, to bear in mind 
 that," besides answering the plaintirt''s case as made by the bill, he 
 should state to the Court, upon the answer, all the circumstances 
 of which the defendant intends to avail himself by way of defence : 
 for a defendant ought to apprise the plaintifl", by his answer, of the 
 nature of the case he intends to set up, and that, too, in a clear, 
 unambiguous numner; and, in strictness, he cannot avail himself 
 of any matter in defence Avhich is not stated in his answer, even 
 though it should appear in his evidence,-^ The last-mentioned 
 rule was formerly, when an answer was required in every case, 
 strictly enforced. Under the present practice, however, by which, 
 if the defendant has not been required to answer, and has not an- 
 swered, he will be considered to have traversed the case made by 
 the bill,'- the rule has been much relaxed in cases where no answer 
 has been required, and none has been put in. 
 
 In such a case, the defendant has been permitted to set up the 
 Statutes of Frauds,'^ and of Limitations,* by his evidence, and orally 
 at the hearing, and not been compelled to put in a voluntary an- 
 swer for that purpose. Where, however, he had been interrogated, 
 it was held, that he ought to have set up the defence of being a 
 purchaser for valuable consideration without notice, by his answer, 
 and. he was not allowed to raise it at the hearing.^ Where the 
 facts were put in issue and proved, a defence was allowed, although 
 it was not distinctly raised on the pleadings." 
 
 A defendant is not bound to state, upon his answer, the con- 
 clusions in Law which he intends to deduce from the facts he has 
 set out : ■^ that, as has been before stated,^ would be contrary to the 
 principles of good pleading. Indeed, the most correct method of 
 pleading is, merely to state the facts intended to be proved, and 
 to leave the inference of Law to be drawn from them u])on the 
 argument of the case ; but the established rule is, that if the de- 
 fendant states upon his answer certain facts as evidence of a par- 
 ticular case, which he represents to be the consequence of those 
 
 1 Stanley v. Kobinson, 1 H. & M. 527, 
 529; Harrison v. JJorwcIl, 10 Sim. ^82; 4 
 Jur. 245; Hodgson v. Thornton, 1 Eq. Ca. 
 Ab. 228, pi. 5; liurnham v. Dalling, -3 C. 
 E. Green (N. J.), 132; Moors v. Moors, 17 
 N. H. 481. 
 
 2 15 & IG Vic. c. 80, § 20. 
 
 3 Lincoln v. Wright, 4 De G. & J. 10 ; 
 5 Jur. N. S. 1142; Jack.son v. Oglander, 
 2 H. & M. 405. 
 
 * Green v. Snead, 30 Beav. 231; S. C. 
 
 nom. Snead v. Green, 8 Jur. N. S. 4; coti- 
 tra, Holding v. Barton, 1 Sm. & G. Ap. 
 25. 
 
 s Phillips V. Phillips, 3 Giff. 200; 7 Jur. 
 N. S. 10U4; 8 id. 145; 10 W. R. 230, 
 L. C. 
 
 6 Onnes v. Boadel, 2 De G., F. & J. 333; 
 Jur. N. S. 1103, 1104. 
 
 7 Jhid. 
 
 8 Ante, p. 371.
 
 GENERAL NATURE OF ANSWERS. 
 
 713 
 
 f;\cts, and upon "which he rests his defence, he will not be permitted 
 afterwards to make use of the same facts, for the purpose of estab- 
 lishing a different defence from that to which, by his answer, he 
 has drawn the plaintiff's attention.-' 
 
 A defendant may, by his answer, set up any number of defences, 
 as the consequence of the same state of facts, which Ms case will 
 allow,- or the ingenuity of his legal advisers may suggest ; thus, 
 in setting up an immemorial payment in Ueu of tithes, a defendant 
 has been allowed to rely upon it, either as a modus, or as a com- 
 position real existing from time immemorial, or as a composition 
 undetermined by notice.^ In none of these cases were any facts 
 stated in the answers which were inconsistent with any of the de- 
 fences set up, and the evidence to prove them was, in either case, 
 the same. 
 
 Although a defendant may be permitted to set up, by his answer, 
 several defences as the consequence of the same state of facts, or 
 of facts which are consistent with each other, a defendant cannot 
 insist upon two defences which are inconsistent with each other, or 
 are the consequence of inconsistent facts.* And, in the applica- 
 tion of this rule, it makes no difference whether the inconsistent 
 defences are each substantially relied upon, or are set up in the 
 alternative ; " that answer is bad which either contains inconsistent 
 defences, or an alternative of inconsistent defences." '^ Thus, al- 
 though a defendant, in a tithe suit, might set up a payment, either 
 as a modus, or as a com])osition real existing from time immenu)ri;d, 
 he could not set up the same payment, eitlier as a modus or as a 
 composition real not alleged to be immemorial.*^ 
 
 From the cases of Jesus College v. Gibbs and Leech v. Bailey, 
 above referred to, it is to be collected, that wliere a defendant sets 
 up, by his answer, two inconsistent defences, the result will be to 
 dejjrive him of the benefit of either, and to entitle the plaintiff' to 
 a decree.'' Sometimes, indeed, the Court will, where, from redun- 
 dant expressions- or other verbal inaccuracy, a defence has been 
 rendered inconsistent, tliougli evidently not intentled to be so, 
 either reject the redundant exj>ressions as surplusage,* or direct 
 
 C. XVII. § 1. 
 
 Inconsistent 
 detVni'es not 
 allowed, 
 
 whether 
 alternative 
 or not. 
 
 When 
 defences 
 inconsistent, 
 plaintiff 
 entitled to 
 a decree; 
 
 but verbal in- 
 accuracy may 
 be rejected. 
 
 > n<-Mnett I-. Xcale, \\'iglitw. ;}24. 
 
 2 Story K(|. I'l. § «r,l. 'I'hc d.-fendant 
 may wX, u|), in lii.s answer, matters which 
 iiave orciirn-d since (lie tiling,' ol' the bill. 
 Lyons r. lirooks, 2 VAw. Cii. 110. 
 
 '* Alkyn.s e. Lord \Villoii>;hl)y dc 
 I'.rooke. 2 Anst. ;{!J7; Atkins c. Ilatton, ii. 
 .tut;; Wolhv K. IJrownhill, M'Lel. 317; 
 IJishoj) I'. cfii.hcHtcr, .'J (iwill. I.}|(;. 
 
 * A (b-fciiclani may Imth <li'ny the 
 I linri^i'H in tin- hill, and si'( up distinct 
 drii'iiii's, SI) tlii'v !»■ not wlirdly inconsist- 
 
 I III with siii-h dvnial. Ilojipcr v. Hopper, 
 
 I I I'aigc, -to. 
 
 '' I'er Alderson, 13., in 1 Y. & C. Ex. 
 100. 
 
 ^ Jesu.s College v. (iibbs, 1 V. & (I. Ex. 
 145, IGO; and see Leech y. Uailev, (> I'ri. 
 50-1. 
 
 ' But see Nagle v. Edwards, y Anst. 
 702, and the observations upon that case, 
 in .lesuH College v. Gibbs, 1 Y. & C. E.v. 
 Iti3. 
 
 8 Ellis t). Saul, 1 Anst. ;W'2, .•(41 ; .lenkin- 
 son I', lioyston, 5 I'ri. 405; see also L'hthuQ' 
 V. Lord Iliintiiiglicld, 1 I'ri. 237.
 
 14 
 
 ANSWERS. 
 
 ('. x\ 11. 5 1. 
 
 I >otoii(lant 
 ni.iy sot up 
 two I'on.-ist- 
 oiit delonccs 
 
 Of the 
 
 certaiutv 
 
 rcqiiirfd in 
 
 statin?^ 
 
 defemlani's 
 
 case. 
 
 Of iiiisisting 
 upon the 
 same benefit 
 as if defend- 
 ant had 
 pleaded or 
 demurred. 
 
 (Ix'iii to l)t^ struck (Hit : ' such iiululni'iicc, liowcvor, is confiiRMl to 
 cMsos of vi'rl);il iii:u'cur;icy only, whu'li would not luive embarrassed 
 tlio plaintiir in tlic conduct of lus c;iso. 
 
 Altlio\ii;h a (U'lcndant cannot, by his answer, set u|), in ()])])0si- 
 tion to tlic plaintitVs title, two inconsistent defences in tlie alter- 
 native, he will not be precluded from denying the ])laintift"'s general 
 title, and also insisting that, in case tlie i)laintiif establishes his title, 
 he is precluded from recovering by some other circumstance which 
 would eqiuilly serve to preclude him, or any other j)erson in whom 
 the title might be actually vested. Thus, in a tithe suit, the de- 
 fendant might have denied the plaintiff's title as rector or vicar, 
 and at the same time have set up a modus} 
 
 In stating a defendant's case, it is only necessary to use such a 
 degree of certainty as will inform the plaintiff of the nature of the 
 case to be made against him;^ it is not requisite that the same^ 
 degree of accuracy should be observed in an answer as is required 
 in a bill. 
 
 If the defence which can be made to a bill consists of a variety 
 of circumstances, so that it is not proper to be offered by way of 
 plea, or if it is doubtful whether a plea 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 ])leaded to the 
 bill.* Thus, a defendant insisting ujion the benefit of the Statute 
 of Limitations by way of answer, may at the hearing, have the like 
 benefit of the statute as if he had pleaded it.^ So also, if a defend- 
 ant can offer a matter of plea which would be a complete bar, but 
 has no reason to protect himself from any discovery sought by the 
 bill, and can offer circumstances which he conceives to be favorable 
 to his case, and which he could not offer together with a plea, he 
 may set forth the whole matter in the same manner." Thus, if a 
 purchaser for a valual>le consideration, clear of all charges of fraud 
 or notice, can offer additional circumstances in his favor which he 
 cannot set forth by way of plea, or of answer to support a plea, as 
 the expending a considerable sum of money in improvements with 
 the knowledge of the ])laintiff, it may be more prudent to set 
 out the whole by way of answer, than to rely on the single defence 
 
 1 Jesus College v. Gibbs, 1 Y. & C. Ex. 
 14.5, 157. 
 
 2 Carte v. Ball, 3 Atk. 49G, 499. 
 
 3 See Cummings v. Coleman, 7 Rieh. 
 Eq. (S. C.)509. 
 
 ■» Ld. Ked. .308. 
 
 5 Norton v. Turvill, 2 P. Wms. 144. 
 The same strictness is not requisite in an 
 answer to a bill in Equity, where the Stat- 
 ute of Limitations is relied on as a defence, 
 a.s in a plea. Maury v. Mason, 8 Porter, 
 21.3. And see, as to effect of answer insist- 
 
 ing on Statute of Frauds, Jackson %i. 
 Oglander, 2 11. & M. 405. 
 
 •i 15ut it is said by Mr. Justice Story, 
 that "it is very far from being generally 
 true, as is sometimes alleged in the books, 
 that a defendant may, by answer, avail 
 himself of, and insist upon, every ground 
 of defence, which be could use by way of 
 demuiTer, or of plea, to the bill." Story 
 Eq. PI. § 847, and notes; Portarlington v. 
 Soulby, 7 Sim. 28.
 
 GENERAL, NATURE OF ANSWERS. 
 
 715 
 
 by way of plea ; unless it is material to prevent disclosure of any 
 circumstance attending his title.^ 
 
 Where the same benefit has been claimed, by answer, that the 
 defendant would have been entitled to if he had demurred to the 
 bill, or pleaded the matter, alleged in his answer, in bar, it is only 
 at the -hearing of the cause that any such benefit can be insisted 
 upon ; and then the defendant Avill, in general, be entitled to all 
 the same advantage of this mode of defence that he would have 
 had, if he had adopted the more concise mode of defence, by de- 
 murring or pleading.- In the case, however, of multifariousness, 
 if the defendant does not take the objection in limine, the Court, 
 consitlering the mischief as already incurred, will not, except in a 
 special case, allow it to prevail at the hearing : although it may 
 protect the defendant from the costs incurred, if it should appear 
 .that he had been imj^roperly subjected to them.^ 
 
 We now come to the consideration of the manner in which the 
 interrogatories (if any) must be answered. 
 
 Under the old practice of the Court, it was necessary that the 
 defendant should answer all the statements and charges in the bill, 
 whether specially interrogated thereto or not ; but he was not 
 bound to answer any interrogatories which were not founded 
 upon the statements or charges contained in the bill : * though, 
 if he did so, he thereby put them in issue. Under the present 
 practice, a defendant may be required to answer any interroga- 
 tories wliich are pertinent to the case made by the bill, although 
 they are not founded on specific charges or statements in the 
 
 C. XVII. § 1. 
 
 Benefit can- 
 not be had till 
 the hearing. 
 
 Objection of 
 multifarious- 
 ness should 
 be taken 
 in limine. 
 
 Answer to the 
 plaintiff's in- 
 terrogatories : 
 
 defendant 
 bound to 
 answer inter- 
 rogatories, 
 pertinent to 
 case made bv 
 bill, althougii 
 not founded 
 on specific 
 statements 
 therein. 
 
 1 Ld. Red. 309. A party setting up a 
 legal right, in his answer to a bill in 
 Kiiuity, i^ Hot bound to den}' notice of a 
 suIj'Cfiucnt lien or interest, unless tlie bill 
 all''gi-s notice. King v. iMcVikar, <j Sandf. 
 Ch. r.l2. 
 
 -2 Wray v. Hutchinson, 2 M. & K. 2-35, 
 238, •24-2i see also Milligan v. Mitchell, 1 
 M. & (J. 433, 447. 
 
 a B.iison V. Hadfield, 4 Hare, 32, 39; 
 r'asli.'ll V. Kelley, 2 Dr. & War. 181; 
 Hafbiy f. King, 1 Keen, COl, 009; and 
 see <iiile, p. 34G. 
 
 ■* .Jerrard v. Saunders, 2 Vcs. J. 4.54, 
 4.58; Itiaisdelj V. IJowers, 40 Vt. 12G, 130; 
 Miller 0. Saunders, 17 (ieo. 02; Grim v. 
 Wh.cl.T, 3 Kdw. (Jh. 334; Mechanics' 
 I'.arik i\ Lew, 3 I'aige, 000; Story Eq.ri. 
 §§ 3'i. 37 ft is siillicicnt, however, if the 
 interrogatory is foun<led upon a statement 
 in the bill, wliir'h is inserted therein merely 
 an evidence m supjiort of the main chfirges. 
 Mechanics' Hatik v. Levy, 3 I'aige, liOfi. 
 Where a fact is stated in a bill by way of 
 rciital miTcly, without any interrogatory 
 calling for an answer as to that fact, the 
 defcnilant is not bound either to admit 
 or Ui deny the same. Mechanics' Bank v. 
 
 Levy, 3 Paige, 606 ; Newhall v. Hobbs, 3 
 Cash. 274, 277. The general interrogatory 
 or request in a bill "that the defendant 
 may full answer make, to all and singular 
 the premises, fully and particularly, as 
 though the same were repeated, and he 
 specially interrogated," <S:c , is sufficient 
 to entitle the plaintifi' to a full disclosure 
 of the whole subject-matter of the bill, 
 equally as if he had specially interrogated 
 the defenclant to every fact stated in the 
 bill, with all the material circumstances. 
 Method. Kpis. (,'hurch v. Jaipies, 1 .John. 
 Ch. 65, 75, 76; Neale v. Ilagthorp, 3 
 Bland, 5.51; see Story Er^. I'l. §§ 35- 
 38. Special interrogatories m a bill seem 
 not to ne absolutely necessary. Story Eq. 
 Bl. § 38; Meth. Epis. Church v. .Jaques, 1 
 .John. ('h. 65. By the 40th Ecpiity Bule 
 of the Uniteil Slates Courts, it i^ provided, 
 that "a del'endant shall not be hound to 
 answer any statement or charge in the bill, 
 unless specially and particularly inter- 
 rogateil thereto; and a (lel'enilaiit shall not 
 be bound to answer any interrogatory in 
 the hill, except those interrogatories which 
 such defendant is n^ipiired to answer," &c. 
 See Story Eq. PI. § 847, note.
 
 1() 
 
 ANSWERS. 
 
 C. XV11.5 I. 
 
 IVtondant 
 only liomul to 
 aiiswor iiiti-r- 
 rogatorii's lie 
 is rcquiivil to 
 auswor. 
 
 but may 
 answer any 
 statomiMit, 
 charge, or in- 
 terrogatory, 
 it' he thinks 
 tit; 
 
 not, however, 
 by stating his 
 ignorance of 
 the matter. 
 
 Defendant 
 may, b}' 
 answer, 
 object to dis- 
 covery sought 
 by interrog- 
 atories. 
 
 Special 
 objections to 
 discovery 
 wliicli may 
 be raised by 
 answer. 
 
 Defendant 
 must swear to 
 bis belief in 
 their validity. 
 
 bill;' lnit III' is iu)t bound to ausAvcv nny slnteincnt or cliargc in 
 till' bill, unUss specially niul i).irticiil;ii'ly interrogated thereto; 
 nor is he bound to answer any of" the interrogatories except tliose 
 Avhieli lie is reijuired to answer.'- A detenihmt is not, liowever, 
 prohibited from answering any statement, cliarge, or interrogatory 
 ■whiih lie may consider it necessary to his defence to answer ; and 
 he is left at comj)lete liberty, in this respect, to act in such man- 
 ner as may be thought advisable : subject to the restriction that 
 if he answer any statement or charge in the bill to which he is not 
 interrogated, only by stating his ignorance of the matter so stated 
 or charged, such answer will be deemed impertinent.* 
 
 The plaintiff's right to discovery is not extended, by the present 
 practice; so that all the objections which could formerly have 
 been urged by the defendant, to protect himself from a discovery 
 of any portion of the matter of the bill, can now be m-ged against 
 a discovery of that concerning Avhich the defendant is si^ecially 
 interrogated; and there have always existed certain special rea- 
 sons upon which the defendant might object to the discovery 
 sought by the plaintiff: either because the discovery might sub- 
 ject him to pains and penalties, or to a forfeiture, or to something 
 in the nature of a forfeiture ; * or because it was immaterial to the 
 relief prayed ; ^ or because it might lead to a disclosure of matter, 
 the subject of professional confidence;" or of the defendant's own 
 title, in cases where there is not a sufficient privity between him 
 and the plaintiff to warrant the latter in requiring a disclosure of 
 it.' In all these cases, although, as we have seen, the defend.'uit 
 may protect himself from discovery by plea or demurrer, yet he 
 has always been permitted to decline, by his answer, giving the 
 objectionable discovery, and to state, in that form, the grounds 
 upon which he claims protection; and he still retains the same 
 privilege.^ He must, however, swear to his belief in the validity 
 
 1 Ante, p. 48-3; Perry v. Turpin, Kay 
 Ap. 49 ; Mansell v. Feeney, 2 J. & H. 313, 
 318: Law v. London Indisputable Society, 
 10 Hare Ap. 20; Barnard v. Hunter, 1 
 Jur. X. S. lOOo, V. G. S.; Marsh v. Keith, 
 1 Dr. & Sm. 342; 6 Jur. N. S. 1182; Hud- 
 son V. Grenfell, 3 Gifl'. 388; 8 Jur. N. S. 
 878. 
 
 2 Ord. XV. 3. 
 
 3 Ord. XV. 3; see Treadwell v. Cleave- 
 land, jMcLean, 283. The above order has 
 been adopted by the Siijircine Court of 
 the United States. See 20th Equity Rule 
 of the United States Courts, January Term, 
 1842. 
 
 ^ Ante, p. 5G2. But the defendant can- 
 not object to answer, if the period fixed by 
 law witliin which he could be prosecuted 
 for the offence or the forfeiture, has elapsed 
 before the answer is filed. Dwinal v. 
 
 Smith, 25 Maine, 379; Story Eq. PI 
 § 589 ; ante, 594, 595, and notes. 
 6 Ante, p. 570. 
 
 6 Ante, 570. 
 
 7 Ante. ]). 579 ; and sec Cooke v. Turner, 
 14 Sim. 218, 221 ; 8 Jur. 703. The plain- 
 tiff is not entitled to discovery of the 
 defendant's case, mite, 579, 580, notes; 
 Hoflman v. Postill, L. R. 4 Ch. Ap. (J73. 
 Allegations of fraud in a bill must be 
 answered, and a demurrer to a bill, con- 
 taining such allegations and strong cir- 
 cumstances of e(|uity, must be overruled. 
 Burnley v. Jeffersonvillc, 3 McLean, 330. 
 Such allegations must be denied in the 
 plea as well as in the answer. Lewis v. 
 Baird, 3 McLean, 5G. 
 
 ** A defendant may in some cases answer 
 in part, and by his answer state reasons 
 why he should not be ccwipelled to make
 
 GENERAL NATURE OF ANSWERS. 717 
 
 of such grouuds ; ^ and the Court must be satisfied, from the cir- C. XVII. § i. 
 
 cumstances of the case, and the nature of the discovery which he '^ y ■' 
 
 is called upon to give, that the case falls within the above-men- 
 tioned grounds of objection.^ 
 
 The principle upon which the Court proceeds, in exempting a Principle on 
 
 „,„,. , r>ii • i which Court 
 
 defendant from a discovery under any of the above cn-cumstances, proceeds, 
 has been fully discussed, in considering the grounds upon which a 
 defendant, although he does not object to the relief, provided the 
 plaintiff makes out a case which may entitle him to it, may demur 
 to the discovery sought ; it is only necessary, therefore, to repeat in 
 this place what has been before stated, that if a defendant objects to 
 any i)articular discovery, upon any of the grounds above stated, 
 he may, even though the grounds upon which he may object 
 appear upon the bill, decline making such discovery, by submission 
 in his answer.^ 
 
 It may be observed here, that the only difiference occasioned by Difference be- 
 this method of objecting to the discovery is, that if the objection o)';Ption''i'y^ 
 be taken by demurrer or plea, the validity of it is at once decided answer, and 
 by the Court, upon argument of the plea or demurrer ; whereas, deniu^rrer!^ 
 if the objection be taken by answer, the validity of it can only 
 come before the Court in the form of exceptions to the answer, 
 which is certainly a more circuitous and expensive mode of trying 
 the question than that afforded by demurring. It has, however, 
 been held, that where the ground of objection is, that the discovery 
 would render the defendant liable to pains and penalties, the 
 ]»roiter course is to sulnnit the point by answer: because, by de- 
 murring, the defendant admits the facts to be true.* 
 
 It is a general rule, that the defendant is only required to an- Objection for 
 swer to those points which are necessary to enable the Court to aHJv^dways 
 make a decree against him;^ and the objection arising from want raisabie by 
 
 ' answer* 
 
 of materiality is one that the defendant has always been allowed 
 to raise by answer.*^ 
 
 further answer. Hunt v. Gookin, Vt. 5 .lur. N. S. 858; see I5alguy v. Broad- 
 
 4(i2; Adams i'. Fisher, .3 M. & C 52G; hurst, 1 Sim. N. S. 111. 
 
 Wi>,'ram, Discov. (Am ed.) 90 tl itq. pi. 2 Sideliottom v. Adkins, 3 Jur. N. S. 
 
 1.V2, &c.; ('iiyiiT I- IJoKiTt, 3 I'ai^fc, 108; 631; h W. II. 743, V. C. S.; see al.so Re^. 
 
 Bff- VVci.MMian c. Mining Co., 4 Jones Eq. v. Hoycs 1 V, & S. 311; 7 Jur. N. S. 
 
 112. 11.08;" I5unii f. Hunn, 12 W. R. 5(jl, L.J J.; 
 
 15ut if a defendant rest him.self upon a Taylor on Kviil § l^tll. 
 
 fact, as un objection to further discovery, '^ yl"'c, p 582; Ld. Red. 200, ;«)7. 
 
 it ou^ht to be such a fact, as, if true, ^ Hi ywood c. Sehviii, 3 Atk. 276; see 
 
 wo\iid at once be a clear, decid(-d, and Attorncy-ficneral r. Lucas. 2 Hare, .506, 
 
 inevitable bar to the iilaintiff's demand. WA\\ 7 Jur. 1080; Karl of Lichlield v. 
 
 Method. Ij.is. Church r. Jaques, 1 John. Itond, IJcav. 8S, 03; 7 Jur. 2011. 
 
 Ch. 65. If it clearly apjicars tli.-it the ^ Per Sir 'I'honias Plumer V. C., in 
 
 case is not of Ivpiity <'o;;ni/.ance, the an- Af;ar v. licf^eiit's Canal Company, <i. 
 
 swer, rcfpiired only for the purposes of Coop. 212, 214; see also Wood v. Hitch- 
 
 the particular suit, would avail nothing;, ings, 3 Heav. 504, 510. 
 
 auci ix not n<< esHarv. Morton t'. (Jrciiada « 'I'lie defendant is not bound to answer 
 
 Academics, 8 Sm v*t M. 773. any allet,'alions in the j.Iainlitf 's bill, which 
 
 » Scott r. Mill^-r (No. 2), John. 328;
 
 718 
 
 ANSWERS. 
 
 r. XVII. 5 1. 
 
 In cases of 
 account, 
 where execu- 
 tor admits 
 assets ; 
 
 Till' n]>]ilic;iti(")ii (^f" this rule has hcon bofoiv discnssod, in troat- 
 iiiii' **' (himii rcrs to diseovcry, on tlie gTouiid of want of mate- 
 riality.^ It may not bo useless, however, in addition to the 
 instances already referred to, to mention one or two cases Avliere 
 the defi'ndant's rioht to exemjit himself from answering to such 
 parts of the bill has been recognized by the Court, u))on excep- 
 tions. In Codrington. v. Codrington^^ a bill was filed by a ])ersou 
 claiming under the limitations of a settlement, to set aside an 
 aiipuintment, by Avhioli his title Avas defeated, on the ground of 
 fraud ; and tipon an answer being put in denying the fraud, the 
 plaintiff amended his bill, by inserting certain inquiries as to tlie 
 manner in which the appointment was attested, in order to show 
 that it was not executed in the manner required by the settlement. 
 These inquiries the defendant, by his answer, declined answering ; 
 and upon the question coming before the Court, Sir Lancelot 
 Shadwell V. C. held, that the defendant was not bound to ansAver 
 the interrogatories in the amended bill: because the plaintiff, 
 having by his bill set up a case of fraud, the fact, whether the 
 appointment Avas executed in conformity Avith the power or /-not, 
 Avas immaterial to the case so set up. 
 
 Upon the same principle, the Court holds that, where a bill is 
 filed by a creditor or legatee, or other person claiming a definite 
 sum out of the personal estate of a deceased person, against an 
 executor or administrator, if the defendant admits assets in his 
 hands sufficient to answer the plaintiff's demands, he need not set 
 out an account of the estate,^ or set out a schedule of the docu- 
 ments in his ])osscssion relating to the estate : * because the admis- 
 sion by the defendant that he has assets in his hands to answer 
 the plaintiff's demands, ^is sufficient to give the plaintiff all the 
 relief he can require, and any discovery Avould be useless and 
 irrelevant.^ So, also, the Court refused to compel discovery, 
 Avhere tlie executor of an executor admitted assets of the oriainal 
 
 are not material to be ansAvered. Utica 
 Ins. Co. V. Lvnch, 3 Paif:fe, 210; Butler i;. 
 Cotting, 1 Koot, 310; Davis v. Mapes, 2 
 Paige, 10.5; Hagthorpe v. Hook, 1 Gill & 
 J. 270: ^Mechanics' I'ank v. Levy, 3 Paige, 
 650; Hardeman v. Harris, 7 How. U S. 
 720; HoH'man v. Postill, L. R 4 Ch. Ap. 
 C73. Hut sec Ilogeiicamp v. Ackerman, 2 
 Stockt. (N. J.) 207; Wootton v. Burch, 2 
 Md. Ch. Dec. 100. A defendant cannot be 
 called upon to answer a mere arithmetical 
 proposition. Mi'Intyre?.'. Trustees of Union 
 College, Paige, 2.'3!l. As to this point of 
 materialitv and the tests of it, see Storv 
 Eq. PI. §§'853, 853 o, 853 b, 853 c; Kuy- 
 pers V. Reformed Dutch Church, 6 Paige, 
 670. 
 
 "It must be borne in mind that it is 
 almost impo.ssible for the Court, in a pre- 
 
 liminary stage of the proceedings, to deter- 
 mine what propositions will be material to 
 the case of one or other of the parties. A 
 certain latitude must always be allowed in 
 seeking discovery." Sir C. J. Selwyn L. 
 J. in Ilolfman v. Postill, L. K. 4 Ch. Ap. 
 673, 078. 
 
 1 Ante, p. 570. 
 
 2 3 Sim. 510, 524. 
 
 8 Agar V. Regent's Canal Company, uhi 
 sup. * 
 
 ■• Forl)cs V. Tanner, 9 Jur. N. S. 455; 
 11 AV. It. 414, V. <;. K. 
 
 5 Pullen V. Smith, 5 Ves. 21, 23. To a 
 bill for discover}' of assets and relief, an 
 answer controverting the claim, without 
 answering as to the assets, is insuflicient. 
 Carneal v. Wilson, 3 Litt. 80.
 
 GENEEAL NATURE OF ANSWERS. -719 
 
 testator came to the hands of his testator ; ^ and so, discovery was C. xvir. § i. 
 
 not enforced where, in a suit by the holder of a policy, the direc- '^-^ y ■' 
 
 tors of an insurance society admitted assets sufficient to pay the 
 claims on the policy.- 
 
 The Couit will not, in general, allow the circumstance of a Or where 
 plamtiff having a claim upon a defendant, to be used for the pur- ^l\.^<^^ x^ 
 pose of enabling the plaintiff to investigate all the private affairs doftndant's 
 of the defendant ; ^ thus, a vendor, in a bill for specific perform- aflairs. 
 ance, cannot interrogate the vendee as to his property : * even 
 though the bill should chai'ge that the defendant was insolvent.^ 
 In order to entitle a plaintiff to an answer to sjich an inquiry, he 
 must show some specific lien upon the defendant's property, and 
 pray some relief respecting it ; ® and the Court will not, even 
 then, compel the defendant to make such discovery, where the 
 interest which the plaintiff may have in it is very remote in its 
 bearings upon the real point in issue, and would be an o]iprcssive 
 inquisition.'' 
 
 The above cases, and tliose before cited, point out in what in- Defendant 
 stances the defendant may decline to make a particular discovery, "nswei-'what 
 when it is irrelevant to the general scope and object of the bill. aii«ts 
 A discovery may, however, be material to the plaintiff's general 
 case, if made by one of the defendants, which would be wholly 
 irrelevant if made by another : in such cases, the defendant from 
 whom the discovery would be immaterial, is not obliged to make 
 it ; and, in general, a defendant is only obliged to answer such of 
 the interrogatories as are necessary to enable the plaintiff to ob- 
 tain a com[)lete decree against him individiuUly. Where, how- Where he is 
 ever, the defendant is involved in the whole case, and in that "hc'ijyhole'" 
 sense relief is asked against him, he must answer : though the tase. 
 interrogatory might seem to be immaterial to the relief asked 
 against him.® 
 
 With reference to the objection oi" immateriality, it must be ]\iatier.sof 
 understood that the defendant is oiilv r((|iiired to answer as to ]"w "*■"! "ot 
 
 ' be answered. 
 
 matters wliicli are well pleaded; that is, to the facts stated and 
 cliargeil. To matters of law, or inferences of law drawn fioiii tlic 
 facts, lie need not .■iiiswer." Thus, a defendant must answer 
 
 1 Lander v. Weston, 13 Jur. 877, V. S. & S. 190, VX.\\ see also Janson v. So- 
 C. K. larle, 2 V. & <;. Ex. i:{'2, l.Xi. 
 
 2 Triehard r. Murray, 12 Jur. OIG, V. » Alursli v. Keitli, J Dr. & Sm. M1\ 
 C. E. ,Tur. N. S. 1182. On tlie suljjeet (.('iiiinia- 
 
 * See Mayer w. Galluchut, G Rich. Eq. terialitv, sec also IMcckley v. llvnuT, 4 
 
 (S. v..) 1. Drew. '248; Newton v. Dimes, U'-liir. N. 
 
 < Francis r. WiL'zell, 1 Mad. 2.')8, 200. S. .08:), V. V. W. 
 
 " See Small v. Attwood, as reported in '•' Story 1C(|. I'l. § 84G. In determining 
 
 Wi(,'ram on l)isc. 108. whether a question is one of tact, and, 
 
 8 I'rancis v. Wigzell, uAj tup. tluirefore, to l)e answered, it makes no 
 
 "^ Wip^ram on Disc. IG."); Dos Santos «. diircrencc; that it is asked with reference 
 
 Frietao, cited ibvl. ; Webster v. Threlfall, 2 to a writicn dncument. lioH'man v. I'ostill, 
 
 L. li. i Ch. Ap. 073.
 
 720 
 
 ANSWERS. 
 
 Where these 
 
 ohjections 
 
 iiiapplicahle, 
 
 (li'toiulant 
 
 must aiis^wor 
 
 luUv. 
 
 r. X\'n.§ 1. wlu'tlu'v a will, oxecntod bol'oro tlic Wills Acl,^ was jinblisbed by 
 tlie testator in the pivscMicc of thire witiiosscs ; but he need not 
 answer to an interrogatory requiring liini to say whether the pub- 
 lication Avas sueli as by hiw is required to pass freeljolds by devise. 
 Sometimes a defendant, instead of answering such interrogatories, 
 submits the ]K)int to the judgment of the Court; but it is not 
 necessary to do so. 
 
 All the objections to discovery that have hitherto been consid- 
 ered, are of a kind that the defendant has always been allowed to 
 raise by answer, upon the principle that the Court does not oblige a 
 defendant to answer such questions, even when the right to relief is 
 admitted ; but where these objections do not apply, it must be 
 i-emembered that " there is no princi]>le more clearly established 
 in the Court than this : that, when a })arty answers, he is bound to 
 answer fully, and for this, among other reasons, that if a defence 
 which a party sets up by his answer should be decided against 
 him, it is of the utmost importance that all consequential matters 
 which are material for the purpose of the decree, should receive an 
 answer." ^ 
 
 This rule is applicable to all cases whei'e the defence intended to 
 be set up by the defendant extends to the entire subject of the 
 suit : such, for instance, as that the plaintiff has no right to equi- 
 table relief — or has no interest in the subject — or that the defend- 
 ant himself has no interest in the subject — or that he is a 
 purchaser for a valuable consideration ^ — that the bill does not 
 declare a purpose for which Equity will assume jurisdiction to 
 compel discovery — or that the plaintiff is under some personal 
 disability, by which he is incapacitated from suing.^ In all these 
 
 Instances 
 where de- 
 fendant must 
 answer fullv. 
 
 1 7 Will, n^ & 1 Vic. c. 26. 
 
 2 Per Lord J^vndhurst, in Lancaster v. 
 Evors, 1 PhiL 3.51, 352; 8 .lur. 133; Hare 
 on Disc. 25.5, 256; Thorpe v. Macauley, 5 
 Mad. 218, 229; Faulder r. Stuart, 11 Ves. 
 2iJ6, 301 ; Mazarredo v. Maitland, 3 Mad. 
 66, 70; Swinhorue r. Nelson, 16 Beav. 
 416; Potter v. Waller, 2 De G. & S. 410; 
 Ambler, ed. Blunt, 353 («); Roade v. 
 Woodroofle, 24 IJcav. 421; Leigh 7'. Birch, 
 32 Beav. 39!>: 9 .lur. N. S. 1265; Swabey 
 V. Sutton, 1 IL & M. 514; 9 Jur. N. S. 
 1.321; Phillips r. Prevost, 4 .John. Ch. 
 20.j; Whitncv c. Beldcn, 1 Kdw. Ch. .386; 
 0;,^den r. ()f,'dcn, 1 Bland. 288; Kuypers 
 V Kef. Dutch Ciiurcji, 6 Paif,a-, .570; Sal- 
 mon r. ClafrKett, 3 niand. 125; (,'uyler r. 
 I3ofcert, 3 Pai{,'e, 386: llafjthorp v. Hook, 
 1 Gill & .1. 272: -Murray r. Coster, 4 
 Cowen, 640; Newliall »•. Hobbs, 3 (Jush. 
 274. 277; Hill r. Crary. 2 Knfrlish, .5.36; 
 L'tica Ins. Co. r. I^vuch. 3 Paige, 210; 
 Mansfield v. (iambril, 1 Gill & .). .503; 
 Htiiry Eq. PI. §§ 606, 609, 846, 846 fi, 847, 
 and notes. The party, submitting to 
 
 answer, must answer the whole of the 
 statements and charges in the bill, and all 
 the interrogatories properly founded upon 
 them, at least, so far as they are necessary 
 to enable the plaintiff to have a complete 
 decree against liini in case he succeeds in 
 the suit. Bank of Utica v. Messereau, 7 
 Paige, 517; I'erkinson v. Trousdale, 3 
 Scam. 380; Patterson v. Ferguson, 1 Barb. 
 490; Langdon v. Goddard, 3 Story, 13. 
 The above is the general rule, subject, 
 however, to the exceptions named in the 
 text and in the notes below. See Story 
 Eq. PI. § 847, and notes; Bank of Utica 
 V. Messereau, 7 Paige, 517. 
 
 In answering interrogatories filed by a 
 defendant for the examination of the plain- 
 tiff, the general rule applies that lie who 
 is bound to answer must answer fully. 
 Hoffman v. Postill, L. U. 4 Ch. Ap. 673. 
 
 3 See Cuyler v. Bogert, 3 Paige, 186; 
 Method. Epis. Church v. Jaques, 1 John. 
 Ch. 65. 
 
 4 Gilbert v. Lewis, 1 De G. J. & S. 38; 
 9 Jur. N. S. 187.
 
 GENERAL NATURE OF ANSWERS. 
 
 721 
 
 cases, a defendant who does not avail himself of the objection to C. XVII. § i. 
 answering, either by demurrer or plea, but submits to answer, 
 must answer fully .^ Nor is a denial of the i)laihtift*'s title a reason 
 for refusing to set out accounts required by the interrogatories ; - 
 nor a denial of fraud a reason for refusing to discover the facts 
 which are alleged to show it.^ In some cases, however, where it 
 has appeared that the discovery Avas not necessary to enable the 
 plaintiff to obtain a decree, and where the information could be 
 
 1 Hare on Disc. 256 ; Newhall f. Hobbs, 
 3 Cush. 2V4, 277. The general rule of 
 pleading iu Chancery is, that the defend- 
 ant cannot by answer excuse himself from 
 answering. Bank of Utica r. Messereau, 
 7 I'aige, 517. It is said by Mr. Justice 
 Story to be far from universally true, as 
 is sometimes alleged, that a "defendant 
 answering can take every ground of 
 defence, wliich he might insist on by way 
 of denmrrer or plea to the bill. Story Eq. 
 Fl. § 8-17. Thus, although it was formerly 
 thought otherwise, it is now settled, that a 
 defendant to a bill for discover}' and relief 
 nmst avail himself of the protection of 
 being a boiid JiUt purchaser for a valuable 
 consideration without notice, by way of 
 plea, — and that he cannot make this 
 defence by answer, for, if he answers at 
 all, he nmst answer fully. JbuL and note; 
 Portarlington v. Soulby, 7 Sim. 28; see, 
 however, the countervailing rule of the 
 Supreme Court of the United States, 
 staled in note to anle, 715. 
 
 There arc, however, a few admitted 
 exceptions to the above rule that a defend- 
 ant cannot by answer excuse himself from 
 answering, which furnish special grounds 
 for objecting by answer to the discover}' 
 sought. Some of these exceptions will be 
 found in tlie te.xt. As, where an answer 
 would tend to criminate the defendant, or 
 >ulij«-ct him to a penalty, torfeiture, or 
 punishment, lirockway v. Copp, 3 i'aige, 
 M'.); Skinner f. Judson, 8 Conn. 528; 
 Livingston f. Harris, 3 I'aige, 528; l^eg- 
 gett f. I'ostley, 2 I'aige, 5'J!i. So, where 
 an answer would involve a violation of 
 professional conlidence. Ante, 570 et .se'/., 
 and notes, 715, and notes. The del'endant 
 may by answer refuse to make discovery 
 on the ground of innnaterialily of the fact 
 o| which tlu' discovery is sought. Kuy- 
 p.rx I', lief. Dutch (liuri'h, (J I'aige, 570; 
 Davis r. .Mapfs, 2 I'aigi-, 105. S<», the 
 (|i Irndant is not bound to auswer matters, 
 which are purely srainlalous, or imperti- 
 nent or irrelevant. Story E(|. I'l- § 8Ki. 
 The Statute of Limitations and lapse of 
 time inny be relinl u|iiiu as a defence by 
 answer, us well as b\- plea and demurrer. 
 ///. § 751; Van Hook -•. Whilloek. 7 
 Taige, 373; .Maury r. >Li^on, H I'orter, 
 213. lor other ea--e.H in wllieli exeeplioriS 
 to the above rule have been taken and 
 Hustained, and the grounds of Hu<'h exci-p- 
 tions, the learned reader is referred to the 
 authorities, in which they are stated and 
 
 VOL. I. 
 
 explained. French t'. Shotwell, 6 John. 
 Ch. 235; Murray v. Coster, 4 Coweu, 641 ; 
 Phillips V. PreVost, 4 John. Ch. 205; 
 McDowl V. Charles, 6 John. Ch. 137; 
 Smith V. Fisher, 2 Desaus. 275 ; Morris v. 
 Parker, 3 John. Ch. 297; Hunt y. Gookin, 
 16 Vt. 462. 
 
 In Desplaces v. Goris, 1 VAw. Ch. 352, 
 353, it was said, that '"although it has 
 been laid down as a principle, that if the 
 defendant denies some substantial, leading 
 fact, which, if admitted, would entitle the 
 plaintiff to relief, until the truth of that 
 liict is disposed of, no further answer shall 
 be compelled. Cooper Eq. PI. 161; yet 
 this appears to be confined to the case 
 of a bill for an account of partnership 
 transactions where the defendant denies 
 the fact of partnership, as in Drew v. 
 Drew, 2 V. lit B. 15'J; and even in such 
 a case if the bill should charge that 
 the existence of the partnership would 
 appear by certain documents in the jjos- 
 session of the defendant, of which a dis- 
 covery is prayed, the defendant eoulil not 
 avoid answering as to such |)artiiular 
 charges by a general denial." See Bank 
 of Utica y. Messereau, 7 Paige, 517. The 
 plaintitt" is entitled to an answer to every 
 fact charged in the bill, the admission or 
 proof of which is material to the relief 
 sought, or is necessary to substantiate his 
 proceedings and make them regular. 
 Davis V. Mapes, 2 Paige, 105. It may be 
 taken as a general rule that if the charge 
 in the bill embraces several particulars, 
 the answer should be in the disjunctive, 
 denying each jiarticular; or admitting 
 some and denying the others, according to 
 the fact. JOid. 
 
 Where susbicious circumstances, gross 
 fraud, and collusion, are charged in a bill, 
 a deleiidant will be lield to a strict rule in 
 answering. Not only his motives, but his 
 .secret designs, his "uiiiittered thoughts," 
 must be exposed. Meehauies' Bank v. 
 l-evy, 1 Edw. Ch. 316. 
 
 ■•^"Dott V. Iloyes, 15 Sim. 372; 10 Jur. 
 628; (Jreat Lu.xembourg Ilailway Com- 
 paiiv )'. Magiiay, 23 Iteav. (i4(i; lirooki's r. 
 Boiuher, 8 Jur. N. S. 113!!; 10 W. K. 708; 
 \'. ('. \V.; Leigh v liircli, and .Swabey V. 
 Sutton, uhi iiijj. ; Uobsoii r. I'liglit, 33 
 Beav. 268. 
 
 ■' I'adley v. Lincoln Water Works C(mi- 
 jiany, 2 APN. & (i. 68, 72; 14 Jur. 2Ui); 
 V. Ilurrisoii, 4 Mud. 252. 
 
 46
 
 7l>L> 
 
 ANSWET^S. 
 
 r. XVII. 5 1. 
 
 I >ofi'iulaiit 
 may tU'ilino 
 answering in- 
 I'Tmiratorios 
 to whicii ho 
 iiiiiilit liavo 
 ilcmuTTod ; 
 
 liiit not one 
 in partii,iilar, 
 IxH'aiise 
 «liole l.ill 
 ili'mtirrable; 
 
 nor evade 
 iliscoverv, hy 
 raisins de- 
 I'ence by 
 answer, in 
 hteiul of plea. 
 
 obtrihieil in tlio proceedings under the decree, a lull answer has 
 not Ikhii I'lit'orccil.' 
 
 A delenilant may, however, as we have seen,- hy answer decline 
 answering any interrogatory, or part of an interrogatory, from 
 answering wliich he might formerly have jirotected liimself by de- 
 murrer; and he may so decline, notwithstanding he answers other 
 parts of such interrogatory, or other interrogatories from which he 
 might have ]irotected himself hy demurrer, or other parts of the 
 bill as to which he is not interrogated;" but lie. cannot decline an- 
 swering a particular interrogatory on the ground that the whole 
 bill is demurrable;'* nor can he protect himself from discovery by 
 raising by answer a defence which he might have pleaded."^ 
 
 A (lefendant must answer as to his knowledge, remembrance, 
 information, or belief^ Where, however, a special cause is shown, 
 
 1 De la Rue v. Dickinson, 3 K. & J. 
 388; Swinburne v. Nelson, refd. to ib. 
 38i); Clegg v. Edmonson, 3 Jur. N. S. 
 •2'J9, L. J.l. And see Lett v. Parry, 1 H. 
 & M. 517; Lockett v. Lockett, L. R. 4 
 Ch. Ap. 336. But a defendant cannot 
 excuse himself Irom answering fully on 
 the ground that the giving the discovery 
 sought would anticipate the decree, such 
 discovery being the same as that which 
 would be ordered at the hearing if the 
 plaintiff obtained a decree. Chichester v. 
 Marquis of Donegal, L. R. 4 Ch. Ap. 416. 
 
 2 Ante, p. 583. 
 
 3 Ord. XV. 4; Padlev v. Lincoln Water 
 Works Company, 2 M'N. & G. 08, 71; 14 
 Jur. 299; Baddcley v. Curwen, 2 Coll. 151, 
 155; Fairthorue v. Western, 3 Hare, 387, 
 391, 393; 8 Jur. 353; Molcsworth c. 
 Howard, 2 Coll. 145, 151; see, however. 
 Tipping V. Clarke, 2 Hare, 383, 392; 
 Drake v. Drake, ib. 647; 8 Jur. 642; Kave 
 V. Wall, 4 Hare, 127; Ingilby v. Shafto, 
 33 Beav. 31; 9 Jur. N. S. 1141. The 
 44th Equity Rule of the United States 
 Courts adopts in terms this English order, 
 and the 39th Equity Rule of the United 
 States Courts proceeds further, and pro- 
 vides, that "the rule, that if the defend- 
 ant submits to answer, he shall answer 
 fully to all the nuitters of the bill, shall no 
 longer apply, in cases where he might by 
 plea protect himself from such answer and 
 di.scovery. And the del'endant shall be 
 entitled in all cases, by answer to insist 
 upon all matters of defence (not being 
 matters of abatement, or to the character 
 of the parties, or matters of form) in bar 
 of or to the merits of the bill, of which he 
 may be entitled to avail himself by a pica 
 in bar; 'and in such answer lie .shall not be 
 compellable to answer anv other matters 
 than he wovild be conqiellaljle to answer 
 and discover upon fding a jilea in bar, and 
 an answer in support of .such plea, touch- 
 ing the matters, .set forth in the bill to 
 avoid or repel the bar or defence. Thus, 
 for example, a bond Jidt purchaser for a 
 
 valuable consideration, without notice, 
 may set up that defence by way of answer 
 instead of plea, and shall be entitled to 
 the same protection, and shall not be com- 
 pellable to make any further answer or 
 discovery of his title than he would be in 
 any answer in support of such plea." 
 
 '' Mason v. Wakeman, 2 i'hil. 516; 
 Fisher t'. Trice, 11 Beav. 194, 199; Marsh 
 V. Keith, 1 Dr. ct Sm. 342, 350; 6 Jur. N. 
 S. 1182; Bates v. Christ's College, Cam- 
 bridge, 8 De C, U. & G. 726; 3 Jur. N. 
 S. 348, L. J J. ; Leigh v. Birch, 32 Beav. 
 399 ; 9 Jur. N. S. 1265. 
 
 6 Lancaster v. Evors, 1 Phil. 349, 351; 
 8 Jur. 133; Swabey v. Sutton, 1 H. &, M. 
 514; 9 Jur. N. S. 132J, V. C. W.; antt, 
 720 note. 
 
 ti Tradesmen's Bank v. Hj^att, 2 Edw. 
 Ch. 195; Bailey v. Wilson, 1 Dev. & Bat. 
 Eq. 187; Norton v. Warner, 3 Edw. Ch. 
 106; see, to this point, Story E(i. PI. 
 § 854 H scq. ; Miles v. Miles, 27 N. 11. 447 ; 
 see Hall v. Wood, 1 Paige, 404; Sloan 
 V. Little, 3 Paige, 103 ; Pierson v. Meaux, 
 3 A. K. Marsh. 6; Woods v. Morrell, 1 
 John. Ch. 103; Devereaux v. Cooper, 11 
 Vt. 103; Pitts V. Hooper, 16 Geo. 442; 
 Dinsmore v. Ilazelton, 22 N. H. 535; Kit- 
 tredge v. Claremont Bank, 3 Story, 590. 
 On a bill filed charging usury, an answer 
 that the defendant does not remember the 
 terms on which the money was lent, will be 
 considered evasive, and tantamount to an 
 adnii.ssion of usury. Scotts v. Hunu", Litt. 
 Sel. Ca. 379. So, where the bill directly 
 charged upon the defendant that he had 
 made and entered into a certain agree- 
 ment, it was held that a simple denial by 
 the deft^ndant in his answer, "according 
 to lii.s recollection and belief," was insutli- 
 cient, and ought to be treated as a mere 
 evasion. Taylor v. Luther, 2 Sumner, 
 228. But where the facts are such that it 
 is i)robable that the defendant cannot 
 recollect them so as to answer more po.si- 
 tively, a denial of the facts according to 
 his knowledge, recollection, and belief,
 
 GENERAL NATURE OF ANSWERS. 
 
 723 
 
 80 positive an answer maybe dispensed with : ^ and in Hall v. 
 Bodly- it is said, that the defendant having sworn in his answer 
 that he had received no more than a certain sum, to liis remem- 
 brance, it was allowed to be a good answer. As to foots which 
 have not happened within his own knowledge, the defendant must 
 answer as to his infonnation and belief, and not as to his informa- 
 tion merely, without stating any belief either the one way or the 
 other. ** It is not, however, necessary to make use of the precise 
 words, "as to his. infonnation and belief:" the defendant may 
 make use of any expressions which are tantamount to them ; thus, 
 to say that the defendant cannot answer to facts inquired after, as 
 to liis belief or otherwise, is generally considered a sufficient de- 
 nial ; * for, though the word " information " is not used, the ex- 
 pression " belief or otherwise," is held to include it. And so, 
 where an answer was in this form : " And this defendant further 
 answering saith, it may be true for any thing he knows to the con- 
 trary that," and after going through the several statements, it con- 
 cluded thus : " but this defendant is an utter stranger to all and 
 every such matters, and cannot form any belief concerning the 
 same," Sir John Leach V. C. was of opinion, that the defendant, 
 in stating himself to be an litter stranger to all and every the 
 matters in (piestion, did answer as to his information, and did, in 
 effect deny that he had any information respecting them.* It may 
 be collected from the above case, that a defendant cannot, by 
 laerely saying "that a matter may be true for any thing he knows 
 
 C. XVTI. § 1. 
 
 will be sufficient. Hall v. Wood, 1 I'aige, 
 404; see also IJtica Ins. Co. v. Lj'ncli, -i 
 I'aii^e, 210; IJrooks y. Byam, 1 Storv, 2U(j; 
 Story iv|. I'l. § 8.j4, and notes. Wliether 
 the facts are cliarf!;f(l in a 1)111 as bi'ing tlie 
 acts of the (iitlctniiant, or within his own 
 personal knowledge, he is bound to admit 
 or deny the facts ciiargcd, either positively 
 or according to his belief, whether tliey 
 occurred within seven years, or at a 
 grcali-r *tistanc<; of time. Sloan i'. Little, 
 ;j I'aige, KW; liall y. Wood, 1 i'aige, 404. 
 
 1 Wyatf.s 1*. k. la. 
 
 2 1 Vurn. 470; and see Nelson v. I'ons- 
 ford, 4 Ikav. 41, 4J. 
 
 3 Coop. Iv). I'l. ;J14. 
 
 * S.!e Hall y. Wood, 1 I'aige, 404; Sloan 
 V. Little, a I'aige, 10.(; Woods v. .Morrell, 
 1 ,lohn. Ch. Wi; IJollon v. (Jardner, -i 
 I'aige, 27-'l; Brooks v. Jivani, I Story, 'i'M't; 
 Kittredge v. < Marcniont liank, -i .Story, h\M. 
 Kittn-dgc V. Claruniont Bank, 1 Wood. & 
 M. 244; King v. llay, 11 I'aige, 2i5; 
 If the di't'i'iidant answers, that he has 
 not any kriowlcrlgy, or intbrniation of a 
 fact chargfil in (he bill, he is not bnuiid 
 to ilcclarc his belief one way or the olliir. 
 Morris r. I'urker, :j .lohn. Ch. 21)7. If he 
 denies all knowleilge of a fact charged in 
 Uie bill, but adniitjt liis belief us lo the fact 
 
 Effect of 
 words " be- 
 lief or other- 
 ■wise." 
 
 charged, it is not necessary for him to 
 deny any inforiuation on the subject. 
 Davis V. Mapes, 2 I'aige, 105. But if he ■ 
 has any information otfier than such as is 
 derived from the bill, he must answer as 
 to such iiitoniiation, and as to his belief or 
 disbelief of the facts charged. Utica Ins. 
 Co. V. Lynch, '6 I'aige, 210; Uevereau.x. v. 
 Cooper, 11 Vt. 103. It is not sulHcient to 
 answer to certain specitic facts charged in 
 the bill, "tliat they may be true, >S:e., but 
 the detendant has no knowledge of, but is 
 a stranger to the Ibregoing facts, and 
 leaves the ])laiiititf to prove the same." 
 Smith y. Lasher, 5 .loim. Ch. 247. Nor is 
 it suliieient to say that "the defendant has 
 not any knowledge of the Ibregoing lacl.s, 
 but Iroin the statement thereof m the bill." 
 Ihiii. Nor is a denial by a defemlant "ac- 
 cording to his recollection ami helief" 
 sutlicient, where the fact is directly 
 charged, as within his knowledge. Tay- 
 lor V. Luther, 2 Sunnier, 22S. But where 
 the delendaut stales that he is "utterly 
 and enlirely ignorant" as to the laet to 
 whieli he is interrogaled, it is suliieient. 
 Morris I'. I'arker, a .loliM. Ch. 2iJ7; Norton 
 V. Wanier, a Kdw. Ch. lOli. 
 
 Amhursfy. King, 2 S. & S. l«a; Ulica 
 Ins. Co. V. Lynch, a I'aige, 210.
 
 7 1^4 
 
 ANSWERS. 
 
 C. XVII. § 1. 
 
 Pi'li'iulaiit 
 iniist uso 
 dilij^once to 
 
 inl'oruiatiuu. 
 
 As to settinj; 
 out accounts 
 
 Where de- 
 fendant has, 
 since bill 
 tiled, ceased 
 to be entitled 
 to access to 
 documents. 
 
 What 
 accounts 
 defendant 
 nijy refer to, 
 instead of 
 scheduling. 
 
 to tlio contrary," avoid stating what his recollection, inlbnuation, 
 or belief with reference to it is, or saying tliat lie lias no recollec- 
 tion or information, or that he cannot form any belief at all con- 
 cerning it; cither in these words, or in e(iuivalent expressions. 
 
 AVhere defendants haVe in their power the means of accjuiring 
 the information necessary to enable them to give the discovery 
 called for, tliey are bound to make use of such means, whatever 
 l)ains or trouble it may cost them;^ therefore, where defendants, 
 tilling the character of trustees, are called u])on to set out an ac- 
 count, they cannot frame their answer so as merely to give a 
 suflicient ground for an account ; they are bound to give the best 
 account they can by their answer : not in an oppressive way, but 
 by referring to books, etc., sufficiently to make them parts of their 
 answer, and to aiFord the plaintiff an opportunity of inspection, in 
 order that he may be able to ascertain whether that is the best 
 account the defendants can give.^ 
 
 Where, however, the defendant has, since the fding of the bill 
 lost his interest in the suit, and has no longer access to the docu- 
 ments, he will not be required to relbr to them.' 
 
 Where defendants are required to set out accounts, they may, 
 for the purpose of rendering their schedules less burdensome, 
 instead of going too much into particulars, refer to the original 
 accounts in their possession in the manner above stated;* but 
 when it is said that a defendant may refer to accounts in his pos- 
 session, it must not be understood as authorizing him to refer, by 
 his answer, to accounts made out by himself for the purposes of 
 the case, but only to accounts previously in existence.'^ 
 
 1 See Taylor v. Kundell, C. &; P. 104, 
 113; 5 Jur. 1129; Earl of Glengall v. 
 Frazer, 2 Hare, 99, 103; 6 Jur. 1081; 
 Stuart r. Lord Bute, 12 Sim. 400; Attor- 
 ney-General V. Kces, 12 Beav. 50, 54; 
 M'lntosh V. Great Western Railway, 4 
 Do G. Ik Sm. 502; Inglessi v. Spartali, 29 
 Beav. 504; Attorney-General v. Burgesses 
 of East Retford, 2 M. & K. 35, 40; and 
 seepvsl, Chap. XLII., Produciiun of Ducu- 
 mtnts; 2 Liiidlev I'artn. (1st Eng. ed.) 
 814, 815; Story Eq. li. § 850 note; Davis 
 v.Mapes, 2 I'afge, 105; Kittredge v. Clare- 
 mont Bank, 1 Wood. & M. 244, 247; Swift 
 «. Swift, 13 Geo. 140. But a defendant 
 ought not to be required to obtain informa- 
 tion so as to meet the plaintiff's wishes, 
 and thereby become his agent to procure 
 testimony. Morris v. Parker, 3 .John. (Jh. 
 301. In' Kittredge v. Glaremont Bank, 1 
 Wood. & iM. 244, Woodbury J. said, that 
 the oflicers, answering for the bank sued, 
 if they are not the same persons who were 
 in ottice at tiie time of the transaction 
 inquired about, ought to go not only to 
 the records, books, and lilis, for informa- 
 tion, but to the former oflicers, if living, 
 and ascertain, as near as may be, the 
 
 truth of the matters about which they are 
 interrogated. 
 
 2 White V. Williams, 8 Ves. 193, 194. 
 A partner bound to account, must give a 
 clear, distinct, and intelligible statement 
 of the results of the business, referring 
 also to particular books, and to the page, 
 if necessary, so that a party entitled 
 thereto may inquire into and investigate 
 its correctness. A reference to the books 
 of the concern, generally', and to former 
 accounts, is not suflicient. Gordon v. 
 Hammell, 4 C. E. Green (N. J.), 210. 
 
 a Ellwand v. M'Donnell, 8 Beav. 14. 
 
 4 White V. Barker, 5 'De G. & S. 746; 
 17 Jur. 174; Major v. Arnott, 2 Jur. N. S. 
 387, V. G. K.; Drake v. Symes, Johns. 
 G47; Telford v. Ruskin, 1 Dr. & 8m. 148; 
 ("hristian v. Taylor, 11 Sim. 401; Bally v. 
 Kenrick, 13 Pri. 291; Eockelt v. Lockett, 
 E. k. 4 Ch. Ap. 330. 
 
 5 Telford v. Ruskin, 1 Dr. c& Sm. 148; 
 ari/uvmli) Alsager v. Johnson, 4 Ves. 224. 
 If the bill reiiuires the defendant to state 
 an account between the parties, the account 
 so stated is resiwnsive to the bill. Bellows 
 V. Stone, 18 N. 11. 405. Where a defend- 
 ant, having stated an account in hia
 
 GENERAL NATURE OF ANSWERS. 725 
 
 To sticli of the interrogatories as it is necessary and material for C. XVII. § i. 
 
 the defendant to answer, he must speak directly and without eva- ' y ' 
 
 sion ; ^ and any interrogatory not intended to be admitted, ought Answer must 
 to be traversed with accuracy .^ Where a fact is alleged, with 
 divers circumstances, the defendant must not deny or traverse it 
 literally, as it is alleged in the bill ; but must answer the point of 
 substance, positively and certainly ; ^ thus, if a defendant is interro- As to posses- 
 gated whether be has in his possession, custody, or power books, ^g" °*^ '^"^"j:^ 
 papers, or writings, a statement in his answer that there are certain they are 
 books, papers, or writings in the West Indies, the particulars of which ^^"^^ad. 
 he is unable to set forth, without any answer as to the fact whether 
 they are in the defendant's possession, custody, or power, will be 
 insufficient : for if the defendant admits the books and writings to 
 be in his possession, custody, or power, the plaintiff may call upon 
 the defendant to produce them ; Avhich the Court will order within 
 a reasonable time/ The reference in the answer must describe the Description 
 books or documents with such accuracy as to enable the ]>laintifF of documents. 
 to move for their production : otherwise,.the answer will be open 
 to exceptions for insufficiency.^ 
 
 Where a defendant stated in his answer that he had not certain When con- 
 books, papers, and writings in his ])osscssion, custody, or power, |'jj\'j|!f^n|j° ^® 
 because they Avere coming over to this country. Lord Eldon held, ant's power; 
 that they were in his poAver, and that the defendant ought to have 
 so stated in his answer.® Where books, papers, or writings are in as where in 
 the custody or hands of the defendant's solicitor, tliey are consid- ^j^\\'(|g"'^^ 
 ered to be in the defendant's oAvn custody or poAver, and should be 
 stated to be so in his ansAver. 
 
 If a defendant is called upon to set out a deed or other instru- AVhere docu- 
 ment, in the Avords and figures thereof, he should do so, or give "et"ut*i'n'^^ 
 some reason for not com])lying Avith the requisition:'' he may, hac verba. 
 however, aA'oid this by admitting that he has the deed or instru- 
 ment in his possession, and offering to give the plaintiff a copy of 
 it.* Where a defendant sets out any deed or other instrument in Craving 
 liis answer, Avhetlier in here verba, or by Avay of recital, it is ahvays 
 a proper jtrecaution to crave leave to refer to it : as, by so doing, 
 
 leave to refer. 
 
 answfr. difs duriliK the pendency of the Kcnrick, I.'J I'ri. 201; Tipping «. Clarke, 
 
 diiit, and the nialttr.-. involved in the 2 Hare, .tH't, ;)'.»0. 
 
 accoiiiit are of loiij^ slaiidinf,', if there is ■• I'anjuliarson r. Halfotir, T. & R. 190. 
 
 evidence teiidinf; to support llie account, ^ Iniuan »'. Whitley, Mteav. r)4S; I'iielps 
 
 the Court may (lirect that the arcount he v. (Ilive, ih. ■'j4i) n., wiiere Lord ( (jtlen- 
 
 faken UH/;/v'/;i(i/>icii' evidence, irrespective liam iM. It. refused to order piodiiclion 
 
 of the fpiestion whether it is responsive to of ilocunients descrihed as "a hmidle of 
 
 the hill. Bellows r. Stone, ///n «u/j. ; dial- papers marked (i." 
 
 mer i'. Rradley, 1 .J. & W. (J5. " l''an|uliarson i'. Halfour, uM sup. 
 
 ' l,d. \U-i\.':im. ' Wvalfs P. li. 204. As to the cases 
 
 2 Patrick r. Hlackwell, 17 .Fur. HO.'J, V. in which it may he |u-udi'ut to set out 
 ('. W.; Karp r. Llovd, 4 K. & .1. ."iS. documents in liiec vtrlm, see ante, ]t. .'JG.'t. 
 
 3 Ord. XV. 2; Ld. lied. 30!J; UuIIy v. » llarr. hy Ncwl. 185.
 
 ANSWERS. 
 
 »'. X\ 11.5 1. 
 
 A piMipral 
 denial must 
 bo accoin- 
 panied by 
 miswcr to 
 particular cir- 
 c.ii instances. 
 
 Answer to 
 plaintifl"'s in- 
 terrogatories. 
 
 llio (liioiidniil makes it a ])ivrt of his answer, ami relieves liimself 
 iVom any c'liar>;-e in case it should be erroneously set out.^ 
 
 If the ilefcndant deny :i fact, he must traverse or deny it 
 directly, and not hy way of negative pregnant ^ as, for example, 
 Avhere he is interrogated whether he has received a sum of money, 
 he must deny or traverse that he has received that sum, or any 
 })art thereof, or else set forth what part lie has received.' 
 
 Where the defen lant is interrogated as to particular circum- 
 stances, a general denial must be accompanied by an answer as to 
 such circumstances : * for although it is true that the general 
 ansAver may include in it an answer to the particular inquiry, yet 
 such a mode of answering might, in some cases, be resorted to, in 
 order to escape from a material discovery;^ and, therefore, a 
 general denial is not enough, but there must be an answer to 
 sifting inquiries upon the general question.^ The advantage 
 of this rule is. strongly illustrated by the circumstance referred 
 to in Jlibbei't v. D%irant? In that case, the defendant was in- 
 terrogated whether he had not received certain sums of money, 
 specified in the bill, in the character of a ship's husband ; in his 
 answer, he swore that he had not received any sums of money 
 whatever, except those set forth in the schedule to his answer, in 
 which schedule the sums specified in the bill were not comprised, 
 but he did not otherwise answer the interrogatory. On the ques- 
 tion of the suflUciency of the answer. Lord Thurlow said, that a 
 man could not deny, generally, particular charges which tended 
 to falsify such general denial, and, therefore, held the answer 
 insufficient ; and it appears by a note of the reporter, that it 
 turned out in point of fact, that the defendant afterwards rec- 
 ollected the receipt of the particular sums, and admitted them by 
 his further answer. But, although the Court requires, that all 
 the particular inquiries should be answered, as well as the general 
 question, it will be no objection to the answer to the particular in- 
 terrogatory, that the defendant has not answered it so particularly 
 
 fyinpj the facts upon which it is founded, is 
 puflicient. Cowles v. Carter, 4 Ired. Kq. 
 (N. (;.) 105. 
 
 5 Wharton v. Wharton, 1 S. & S. 2;55; 
 Tipping V. Clarke, 2 Hare, 383, 389; Duke 
 of Brunswick v. I)uke of Cambridge, 12 
 Heav. 281; Jodrell v. Slanev, 10 Heav. 
 225; Patrick v. Blackwell, 17".Jur. 803, V. 
 C. W.; Earp v. Lloyd, 4 K. & .J. 58; see 
 also Anon., 2 y. & C. Ex. 310; Bridgewater 
 V. l)e Winton, '.) Jur. N. S. 1270; 12 W. 
 li. 40, V. C. K. 
 
 1 See New v. Bame, 3 Sandf. Ch. 191. 
 
 2 High V. Batte, 10 Verger, 385; Robin- 
 son v. Woodgate, 3 Edw. Cli. 422: King 
 V. Kav, 11 I'aige, 235; Walker r. Walker, 
 .3 Kelly, 302; Woods v. Morrell, IJohn. 
 Ch. 103; Morris v. Barker, 3 .John. Ch. 
 297; Smith v. I.asher, 5 .John. Ch. 247; 
 I'ettit V. Candler. 3 Wend. 018; Story Eq. 
 I'l. § 8.52; Thompson v. Mills, 4 Ired. Eq. 
 390. An answer to an interrogatory mu.'^t 
 be positive and direct, and not argumen- 
 tative. New England Bank v. Lewis, 8 
 Pick. 113, 119; Manning v. Manning, 8 
 Ala. 138. 
 
 8 Ord. XV. 2. 
 
 4 Ld. Bed. 309; Story Eq. PI. § 852, 
 note. But a general answer of denial to a 
 general allegation in a bill, without speci- 
 
 6 Per Lord Eldon, in Mountford v. Tay- 
 lor, G Ves. 792. 
 
 T Cited in Prout v. Underwood, 2 Cox, 
 135; Hepburn v. Duraud, 1 Bro. C C. 
 503; Ld. Bed. 310.
 
 GENERAL NATURE OF ANSWERS. 
 
 727 
 
 as to meet it in all its terms, provided it is, with reference 
 to the object of the bill, fairly and substantially answered.^ 
 
 It is, however, the general practice, where the defendant is 
 required to set forth a general account, or to answer as to moneys 
 received, or documents in his possession, to set forth, the account 
 or list of the sums, or documents, in one or more schedules 
 annexed to the answer, which the defendant prays may be taken 
 as part of his answer ; and such practice is very convenient, and 
 in many cases indispensable. The defendant must, however, 
 be careful to avoid any inconsistency between the body of the 
 answer and the schedule : for if there is any, the answer will be 
 insufficient, and the defendant may be required to put in a further 
 answer.'^ The defendant may also resort to a schedule for the 
 purpose of showing the nature of his own case, or of strengthening 
 it : even though there is nothing in the interrogatories which may 
 render a schedule necessary.^ 
 
 In general, a defendant must be careful not to frame his 
 schedule, in a manner which may be burdensome and oppressive 
 to the plaintiff: otherwise, it will be considered impertinent.- 
 Thus, where a bill was filed for an account, containing the follow- 
 ing interrogatory, " whether any and what sum of money was due 
 from the house of A. to the house of B,, and how the defendant 
 made out the same ? " and the defendant, by his answer, set forth 
 a long schedule, containing an account of all dealings and trans- 
 actions between the two houses, the answer was held to be im- 
 pertinent, and the Court said the defendant ought merely to have 
 answered, that such a sum was due, and that it was due upon the 
 balance of an account.* In the last case, although there was an 
 inquiry how the defendant made out that there was a balance, 
 there were no particular inquiries in the bill as to the items, 
 constituting the account, from wliich the defendant made out 
 that there was a balance due to him ; and even where there has 
 been such an inquiry, the Court has gone the length of saying, 
 that a schedule containing such items will be impertinent, if the 
 items are set out with a minuteness not called for by the nature 
 of the case. Thus, where the bill called \i\Km a defendant to set 
 forth an account of all and every the quantities of ore, metals, 
 and minerals dug in particular mines, and llic lull value thereof, 
 and the costs and expenses of working the mines, and the clear 
 profits made thereby, and the defendant i»ut in a schedule to his 
 
 C. XYII. § 1. 
 
 Schedules 
 may be used 
 to set forth 
 general ac- 
 counts, or list;? 
 of documents, 
 
 or in aid of 
 defendant's 
 case. 
 
 When 
 
 schedules will 
 be deemed 
 impertinent. 
 
 1 Ballv r. Kinrick, 1.'! I'ri. 2!I1 ; pee also 
 Readc r." Woodroodc, 24 Urav. 421. 
 
 2 IJrid^rowaKr v. |)c Winlon, !) .hir. N. 
 S. 1270: 12 W. i:. 40, V. C. K. 
 
 8 I'nrk.r r. Fairlir. T. & U. .(02; 1 S. & 
 8. 21)5; Lowe v. Williams, 2 S. & S. 574, 
 
 r.70; Story Kq. I'l. § 850, and notes. As 
 to the prodiiclion of docuiiicnis and jiapers, 
 and the jirojier mode of cILmdvitv a.s to 
 them, H.'e Stt.ry K(). I'l. §§ S.JH-HCO (i. 
 
 * As to inijirrliticnre, see iinli', p. 326. 
 
 '' I'rcnch v. Jacko, 1 Mcr. 307, n.
 
 728 
 
 ANSAVERS. 
 
 0. XVII.§1. answer, coinprisiiio; ;)4I>1 folios, wlicMvin wore sot forth all the 
 
 ^^ >^ jiartirular items o\' e\i'ry tradesinairs bill connected Avith the 
 
 mines, the Court held the schedule to be iinj»ertinent.^ In like 
 manner, it seems that in the case of an executor called upon to 
 account for his disbursements, it is not necessary to set out every 
 separate item.- It is diilicult, however, to point out any precise 
 rules with regard to what will be considered impertinent in a 
 schedule ; much must depend upon the nature of each case, and 
 the purposes for which the discovery is required. The cases above 
 referreil to, and the others which may be found in the l)ooks show, 
 however, that even though the j)laintiff, by the minuteness of liis 
 inquiries, in some measure aiFords an excuse for the defendant 
 setting forth a long and burdensome schedule, the Court will not, 
 unless in instances in which, from the nature of the case, great 
 minuteness is required, permit a defendant to load the record with 
 useless and impertinent matter, even though the introduction of 
 such matter might be justified by the terms of the interrogatories. 
 On the othei- hand, it is to be observed, that the Court will not, 
 where the defendant, in complying with the requisitions in the bill, 
 has bond fide given the information required, though in a manner 
 rather more prolix than might perhaps be necessary, consider the 
 answer as impertinent : for, although prolixity sometimes amounts 
 to impertinence,^ whether the Court will deal with it as such de- 
 pends very much upon the degree in which it occurs.* 
 
 1 Non^-a3' v. Rowe, 1 Mer. 347, 356 ; see 
 also M'Morris r'. Elliot, 8 Pri. 674; Slack 
 V. Evans, 7 Pri. 278, n.; Alsajjer v. John- 
 son. 4 Ves. 217, 225; Byde v. Masternian, 
 C. & P. 205, 272; 5 Jur. 643; Marshall v. 
 Mellersh, 6 Bcav. 558; Tench v. Cheese, 1 
 Beav. 571, 574; 3 Jur. 768. 
 
 2 Norway v. Rowe, ubi sup. 
 8 Slack V. Evans, vbi sup. 
 
 * Gompertz v. Best, 1 Y. & C. Ex. 114, 
 117. As to impertinence in an answer, 
 see Story Va\. PI. § 863. Impertinence in 
 pleading consists in settinj^ forth wliat is 
 not necessary to he set forth; as stuthnfj 
 the pleadings with useless recitals and 
 long digressions about immaterial matters. 
 Hood V. Inman, 4 John. Ch. 437. It was 
 said bv Jlr. Chancidlor Kent, in Woods v. 
 Morrell, 1 John. Ch. 103, that, perhaps 
 the best rule to ascertain whether matter 
 be impertinent, is to see whether the sub- 
 ject of the allegation could be put in issue, 
 or be given in evidence between the par- 
 ties. Where in the answer to a bill in 
 Equity, an allegation was made impeach- 
 ing the bimn Ji'k-s, and validity of a 
 codicil to a will, which had been already 
 approved and allowed by a (Viurt having 
 competent and exclusive Jurisdiction over 
 the probate thereof, it was ordered that tlie 
 allegation be expunged as being imperti- 
 nent and immaterial. Langdon v. (ioddard, 
 3 Story, 13. In reference to the above 
 
 allegation, Mr. Ju.stice Story .=aid, "It 
 is not a matter which can be tiled in con- 
 troversy, or admitted to proof." 3 Story, 
 23. If the matter of an answer is relevant, 
 that is, if it can have any influence what- 
 ever in the decision of the suit, either as 
 to the subject-matter of the controversy, 
 the particular relief to be given, or as to 
 the cost, it is not impertinent. Van Rens- 
 selaer V. Brice, 4 Paige, 174; Wood v. 
 Mann, 1 Sumner, 57!) ; Price v. Tyson, 3 
 Bland, 392. hong recitals, stories, con- 
 versations, and insihuations fending to 
 scandal, are impertinent. Woods v. Mor- 
 rell, 1 John. Ch. 103; Langdon v. (iod- 
 dard, 3 Story, 13. A short sentence is 
 said not to be impertinent, although it 
 contains no fact or material matter, and 
 may bo inserted in an answer only from 
 aljuiidant caution. A statement in an 
 answer introduced to show the temper 
 with which a bill is tiled, and the offensive 
 course pursued b}' the plaintiff, is not 
 impertinent; it mav have an effect on the 
 costs. Whatt^ver is called for by the bill 
 or will be material to the defence, with 
 n^ference to the order or decree that may 
 be made, is proper to be retained in an 
 answer. Desplaces v. Goris, 1 Edw. (!h. 
 350; Monrov v. Monroy, ib. 383; Bally 
 r. Williams,"] M'Clel. & Y. 334; Wood v. 
 Mann, 1 Sumner, 579. 
 An exception to an answer for imperti-
 
 FORM OF ANSWERS. 
 
 729 
 
 In answering an amended bill, the defendant, if he has answered C. xvn. § 2. 
 
 the orisinal bill, should ansAver those matters only which have ' 1 ' 
 
 been introduced bv the amendments. In fact the answer to an Answer to 
 
 , , , .., '• 1 •,! .1 i ii • • 1 amended bill- 
 
 amended bill constitutes, together Avith the answer to the original 
 
 bill, but one record ; ^ in the same manner as an original and an 
 
 amended bill ; hence, it is impertinent to repeat, in the answer 
 
 to the amended bill, what appears upon the answer to the original 
 
 bill, unless by the repetition the defence is materially varied.^ 
 
 Section II. — Form of Answers. 
 
 Two or more persons may join in the same answer; and where Joint or 
 their interests are the same, and they appear by the same solicitor, ^^^^^^ ^' 
 they ought to do so.^ The Court Avill not, however, before the 
 hearing, and at a time when it cannot be known how the defence 
 should be conducted, visit the defendants with costs as a penalty 
 for not joining in their answer; and it is only at the hearing, 
 when all danger of prejudice to the parties is over, that the Court 
 
 nence will be overruled, if the expunging 
 of tlie matter excepted to will leave the 
 residue of the clause, which is not covered 
 by tiie exception, either false or wholly 
 uniritel]igil)le. M'Intyre r. Trustees of 
 Union College, C Paige, 240. The plain- 
 tiff cannot except to a part of the defend- 
 ant's answer as impertinent, which refers 
 to an<l explains the meaning of a schedule 
 annexed to such answer, without also 
 excepting to the schedule itself as imper- 
 tinent, /lud. If a bill against executors 
 calls specifically and particularly for 
 accounts in all their various details, a 
 very voluminous schedule, containing a 
 cfipv from the hooks of account, specifying 
 eacii item of debt and creriit, will not be 
 inipertineut. Scudder r. Hogert, 1 VAw. 
 (,'h. ;i72. If the [)liiintilf ])Ut impertinent 
 fiuestions. he must fake the answer to 
 tliem, though it be impertinent. Woods 
 r. Morrell, 1 John. <'h. 10:j. Hut it seems 
 it wfttild hav(' been impertinent if the bill 
 had not thus calleft forit. /hiil. Cof.ies of 
 receipts taken by the d(!fendaut fur moneys 
 jinid and charged in acionnt and making 
 an imnu'n'Je schedule to an answer, arc 
 impertinent. Scudrler v. IJogert, 1 Kdw. 
 Ch. .'!72. An executor in setting forth in 
 his answer the account and inventory of 
 the estate which eame to his hands, should 
 not adrl copies of the ajipraiser's and execu- 
 tor's oaths, ami of the surrogate's certifi- 
 cate. Such matter will be impertinent. 
 Jolly r. Carter, 2 Ivlw. Ch. 2()!». 
 
 An exception for imj)ertinence must hn 
 supported in l<iti\ or it will fail altogether. 
 Wntr-tafr V. I'.ryan, 1 1{. & M. .'tO; Tench 
 r. Cbeeue, I Hi'av. .')71; Van Rensselaer v. 
 l»ricc, 4 I'aige, 174. 
 
 When an exception was taken to the 
 jurisdiction, in the answer, it was properly 
 struck out, on reference to a ^Master, for 
 impertinence. Wood v. Mann, 1 Sumner, 
 57!*; but see Tcague v. Dendy, 2 M'Cord 
 Ch. 207, 210. As to impertinence, see 
 further. Story Eq. PI. § 80;}; Jolly v. Car- 
 ter, 2 Edw. Ch. 209; Somers v. Torrey, 5 
 Paige, .54. As to scandal in an answer, 
 see Story Eq. PI. §§ 801, 802. As in a bill, 
 so in an answer, nothing relevant can be 
 deemed .scandalous. Story Va\. PI. § 862; 
 Jolly V. Carter, 2 Edw. Ch. 20!). Separate 
 exceptions to the same answer, one for 
 scandal and the other for impertinence, 
 will not be allowed; as nothing in a plead- 
 ing can be considered as scandalous which 
 is not also impertinent. M'Intyre v. Trus- 
 tees of Union College, Paige, 240. 
 
 1 Ld. Red. 318; Hildyard v. Cressy, 3 
 Atk. .303. 
 
 2 Smith V. Serle, 14 A'es. 41.5. 
 
 8 Where two defendants answer jointly, 
 and one speaks positively for himself, the 
 other may, in eases where he is not charged 
 with any thing upon bis own knowledge, 
 say, that he perused the answer and 
 believes it to be trne; but it is otherwise 
 where the defendant answers separately. 
 1 liar. 185, ed. Xewl. .\ defendant may 
 sutliciently answer by a<loj)ting the answer 
 ol' his co-defenrlant. Hinnev's Case, 2 
 HIand. it!); Warlield v. Hanks,' 1 1 Cill & J. 
 08. fJut an answer simjily averring that 
 the facts stated in a paper purj.orting to 
 be th(! answer of another dctendant in the 
 cause, "are substantially correct as far as 
 thi'sr- defendants are concerned," is for- 
 mallvand sulisfantiallv d<'fective. Cam). 
 Weld, 3C. E. Green (N. J.), 41.
 
 7;?0 
 
 ANSWERS. 
 
 (\ XVII. §-2. will iiKtl 
 
 foMs of 
 s('|>arato 
 
 tilcii In- same 
 fcolicitor: 
 
 wliorc 
 allowed. 
 
 AVhere one 
 pet of costs 
 onlv allowed ; 
 
 trustees ; 
 
 cestui que 
 trusts ; 
 
 other 
 instances. 
 
 Where costs 
 of separate 
 defences by 
 trustees 
 allowed. 
 
 '\\'Tio en- 
 titled, where 
 only one set 
 of costs. 
 
 uKtko niiy onlor uiion tlic sul)jec'(.^ Wlu'rc the sntiie sol'uritor 
 liMs bciMi omployod for two or more defendants, and separate 
 answers have been filed, or other proceedings had by or for two 
 or more of such defendants separately, the Taxing Master will 
 consider, in the taxation of such solicitor's bill of costs, either between 
 l>arty and i)arty, or between solicitor and client, whether such sepa- 
 rate answers or other proceedings were necessary or proper; and if 
 lie is of opinion that any part of the costs occasioned thereby has 
 been unnecessarily or improperly incnirred, the same will be dis- 
 allowed.'- No general rule van be laid down, determining when 
 defendants, appearing by the same solicitor, may sever in their 
 defence ; ^ practically, the Taxing Master has to exercise his 
 discretion in each particular case. 
 
 Where defendants have a joint interest only, they will not, in 
 general, be allowed to sever in their defence ; and there are many 
 cases w'here only one set of costs has been allowed by the Court 
 tofctwo defendants, whose interest was so far joint as to have made 
 a severance of their defence unnecessary. Thus, trustees Avill not, 
 in general, be allowed costs consequent u})on their separate defences, 
 unless some of them have a beneficial interest, or there is some 
 special reason for their severance.* So, trustees and cestui que 
 trusts, if they have no conflicting interests, will, in general, be 
 only allowed one set of costs.^ The same principle apjdies, as 
 betAveen a husband and his wife,® a bankrupt and his assignees,® 
 and, in an administration suit, between an assignor and his 
 assignee.'' The severance will, however, be justifiable where the 
 suit is against two trustees, one of whom only is charged with a 
 breach of trust ; ® and, in some cases, where they reside at a 
 distance from each othcr.^ 
 
 Where only one set of costs is allowed, the Court does not, gen- 
 erally, declare to whom it is to be given ; '" but where one trustee 
 
 1 Vansandan v. Moore, 1 Russ. 441, 
 454: 2 S. & S. 50!), 512; and see Woods 
 V. Woods, 5 Hare, 230; Story Eq. I'l. 
 §889. 
 
 2 Ord. XL. 12; Woods v. Woods, 5 
 Hare, 22rj, 2'il. By the (i2d Equity Rule 
 of the United States Courts, it is provided, 
 that in such a case "costs .shall not be 
 allowed for such separate answers or other 
 proceedinf^s, unless a Master, upon refer- 
 ence to him, shall certify, that such sepa- 
 rate answers and otlier proceedinj^s were 
 necessary or proper, and ought not to 
 have been joined tofrether." 
 
 3 Greedv v. Lavender, 11 Bcav. 417, 
 420; Remnant V. Hood (No. 2), 27 Reav. 
 613. 
 
 * Gaunt t). Tavlor, 2 Beav. 34fi; 4 Jur. 
 160; Dudgeon I'.Corlev, 4 Dr. & War. 1. 08; 
 Tarbuck v. Woodcock", 3 Beav. 28!J ; llod- 
 Bon V. Cash, 1 Jur. N. S. 804, V. C. W. ; 
 
 Course v. Ilumplirey, 20 Beav. 402; 5 Jur. 
 N. S. 015; I'rince v. Hine, 27 Beav. 345; 
 Attorney-General v. Wyville, 28 Beav. 
 404; and .see Morgan & Davey, 87; and 
 post, Cliap. XXXI., § 2, O'Sta. 
 
 '> Woods V. Woods, iibl sup. ; Farr v. 
 Sherifle, 4 Hare .528; 10 Jur. 630; Rem- 
 nant V. Hood, voi Slip. 
 
 6 (jarey v. Wliittingham, 5 Beav. 268, 
 270; Jur. 545. 
 
 ■? Remnant v. Hood (No. 2), 27 Beav. 
 013; Greedy v. Lavender, 11 Beav. 417, 
 420. 
 
 8 Webb V. Webb, 10 Sim. 55. 
 
 '■• Aldridge v. Wcstbrook, 4 Beav. 212; 
 Wiles V. (.'ooper, !) Bcav. 21)8; Commins v. 
 Brownfield, 3 Jur. N. S. 0.57, V. C. W. 
 
 1" (bourse V. Ilumplirey, 20 Beav. 402; 
 5 Jur. N. S. 615; Attorney-General v. 
 Wyville, 28 Beav. 464.
 
 FORM OF ANSWERS. 
 
 731 
 
 only, in obedience to an order, paid a sura of money into Court, he 
 was held entitled to the whole of the costs.^ 
 
 If the defendants are permitted to sever, they will be allowed 
 the costs of separate counsel, though they take the same line of 
 defence.^ 
 
 An answer must be divided into paragraphs, numbered con- 
 secutively, each paragraph containing, as neai'ly as may be, a sep- 
 arate and distinct statement or allegation.^ It must not refer to 
 another document, not on the files of the Court, as containing the 
 statement of the defendant's case.* 
 
 An answer must be intituled in the cause, so as to agree with 
 the names of the ^larties as they appear in the bill, at the time the 
 answer is filed.^ A defendant may not correct or alter the names 
 of the parties as they appear in the bill ; if there is a mistake in his 
 own name, he must correct it in the part following the title of the 
 cause, thus : " The answer of John Jones (in the bill by mistake 
 called William Jones)." ^ 
 
 An answer is headed: "The answer of A. B., one of the above- 
 named defendants, to the bill of complaint of the above-named 
 plaintiff." If the bill has been amended after answer, the heading 
 states that the answer is "to the amended bill of complaint of the 
 above-named plaintiff'."'' If two or more defendants join in the 
 same answer, it is headed: "The joint and several answer;" but 
 if it be the answer of a man and his wife, it is headed " The joint 
 answer." If a female defendant has married since the filing of the 
 bill, but before answering, she must either obtain an order for leave 
 to answer separately, or answer jointly with her husband, who, al- 
 though not named on the record as a defendant, may join in the 
 answer : in which case, the answer should be headed "The answer 
 of A. B. and C. his wife, lately and in the bill called C. D., spinster 
 (or widow, as the case may be)." ^ The answer of an infant, or 
 other person answering by guardian, or of an idiot or lunatic an- 
 swering by his committee, is so headed.^ 
 
 Any defect occurring in the heading of an answer, so that it 
 does not appear distinctly whose answer it is, or to what bill it is 
 an answer, is a ground for taking it off" the file for irregularity. 
 Thus, where an answer was intituled "the joint and several answer 
 of A. B. and C. D., defendants, E. F. and G. II., complainants," 
 omitting the words, "to the bill of complMint, of," it was, on motion. 
 
 C. XVII. § 2. 
 
 Title. 
 
 Correction of 
 misnomer. 
 
 Heading of 
 answer: 
 to original 
 bill; 
 
 to amended 
 bill; 
 
 of several 
 defendant''; 
 
 of husband 
 and wife ; 
 
 of female 
 defendant, 
 married since 
 filing of bill; 
 
 b}' guardian. 
 
 Whore a de- 
 fect appears 
 in heading, 
 plaintid" may 
 move to have 
 answer taken 
 oil' the file; 
 
 1 I'rince r. Iline, 27 Ueav. 345; and sec 
 MnrK.in & Duvcy, 87, 88. 
 
 - Hainbrigge ti. Mo»», 3 Jur. N. S. 107, 
 V. ('. W. 
 
 8 \r, & 10 Vic. c. m, § U; Ord. XV. 
 1; pee forms of answers in Vol. IIF. 
 
 * I'aikhiml Islundti Company v. Lafone, 
 3K. &J.2IJ7. 
 
 '> r.raithwaiti''s Pr. 44. 
 
 c //y/V/.; Attornev-CJencraJ r. Won-ester 
 Corimration, 1 ('. I'. Coop. t. Colt. IS. 
 
 7 J{igby. V. liighy, !) licuv. ;ill, 313; 
 see forms in Vol. III. 
 
 "* liraithwaite's I'r. 40. 
 
 " I'or fonns of heading.') of answerfl, soo 
 Vol. III.
 
 ANSWERS. 
 
 V. XVII. § J. 
 
 or (lofendant 
 may put in 
 a i)ropi'r 
 answer. 
 
 "Whore 
 answer not 
 sworn by all 
 the defend- 
 ants for 
 ■whom it was 
 prepared. 
 
 Must be 
 signed by 
 counsel, 
 and be per- 
 used by him ; 
 
 onliMVil to bo fakcii oW (lie lilc tor irroixularity.^ So also, where 
 [he iil.iiiitilV was niisiiaiucd in the licadinsx, an order was made to 
 take tlie aii.swor ofV (lie tilo, and for ))rocess of contompt to issue ;'' 
 and so, where the hill was Hied by six ))ersons, and (he document 
 hied purported to be an answer to the bill of five only, the answer 
 was ordered to be taken off the file.^ If, however, it is clear to 
 whose bill it is intended to be an answer, this course will not now 
 be foUoAved.* The notice of motion, in such a case, should not 
 describe the document as the answer of A. B., <fcc., but as a certain 
 pa]ier writinsf, purporting to be the answer,^ An answer with a 
 defect of this sort in the title is, in fact, a nullity, and may be 
 treated as such ; and although a defendant may, if lie pleases, ap- 
 ply to the Court for leave to take the answer off the file and re- 
 swear it, it is not necessary that he should do so, but he may leave 
 the answer upon the file, and put in another,® 
 
 Where an answer has been prepared for five defendants, it can- 
 not be received as the answer of two only;'' and where such an 
 answer had been filed, it was, upon the motion of the })laintiff, 
 ordered to be taken off the file.* In an earlier case, however, be- 
 fore the same Judge, where a joint and several answer included in 
 the title the names of persons who refused to join in it, the answer 
 was ordered to be received as the answer of those defendants who 
 had sworn to it, without striking out tlie names of those who had 
 not.® And an answer, which had been prepared as the answer of 
 several defendants, but only sworn to by some of them, may, by 
 special order, be directed to be filed as the answer of those de- 
 fendants only who have sworn to it ; and an order may be subse- 
 quently made, that a defendant who has not sworn to it (he being 
 out of the jurisdiction when the answer was filed) be SAVorn to it 
 by the Record and Writ Clerk, without the answer being taken off 
 the file, and that such answer, when so sworn, be treated as the 
 joint answer of all the defendants whose answer it purports to be.^° 
 
 An answer must be signed by counsel ; " and no counsel is to 
 sign any answer unless he has j^erused it ; and he must take care 
 
 1 Pictors V. Thompson, G. Coop. 249. 
 
 2 Griliiths I'. Wood, J 1 Ves. 02 ; Fry v. 
 Mantell, 4 Beav. 48.5; S. C. nom. Fry v. 
 Martel, 5 Jur. 1104; Upton v. Sowten, 12 
 Sim. 45; S. C. nom. Upton v. Lowten, 
 5 Jur. 818. 
 
 3 Cope V. Parry, 1 Mad. 83. As to 
 scandal and impertinence in the heading 
 of an answer, see Peck v. Peei<, Moss. 45. 
 
 ■» lialjbetli r. S(|uire, 10 Hare A p. .'}. 
 
 5 See 11 Ves. 04. For form of notice of 
 motion, sec Vol. III. 
 
 6 Griffiths V. W^ood, wAt sup. 
 
 7 Harris «. .James, 3 Hro. C. C. 399. 
 
 8 Cooke V. Westall, 1 Mad. 205. 
 
 » Done V. Read, 2 V. & B. 310. 
 
 1" Lyons v. Bead, 4 and 15 Nov., 1850, 
 cited Braithwaite's I'r. 51, 52; and see 
 Hayward v. Hol)orts (1857, H. 1.52), G 
 IMarcli, 1858; and Lane »'. London Bank 
 of Scotland (1804, L. 128), 10 March, 
 1805, iTi wiiicii like orders were made; the 
 latter on |Ktition of course, by consent of 
 the plaintiff. 
 
 11 ( )nl. VIII. 1 ; Wall v. Stubbs, 2 V. & 
 B. 358 ; Brown v. Bruce, 2 Mer. 1 ; Bishop 
 V. Willis, 5 Beav. 83 n. ; but see Sears v. 
 Hyer, 1 Paige, 483. There is no objection 
 to the same counsel signing the separate 
 answers of co-defendants.
 
 FORM OF ANSWERS. 
 
 733 
 
 that the documents are not imnecessarily set out therein in hmc 
 verba ; but tliat so much of them only as is pertinent and material 
 is set out or stated, or that the substance of so much of them only 
 as is pertinent and material be given, as counsel may deem advis- 
 able ; and that no scandalous matter ^ be inserted therein.- 
 
 The signatui-e of counsel is usually put to the draft of the an- 
 swer, and thence copied on to the engrossment or print ; and if 
 not affixed either to one or the other, the plaintift' may apply, by 
 motion, with notice to the defendant, that the answer may be 
 taken ofi' the file ; ^ but the Court will not direct such a course to 
 be adopted where the interest of the plaintiiF may be prejudiced 
 by the proceeding.* Where, by inadvertence, an answer has been 
 sworn or filed without the name of counsel being put to it, and the 
 plaintifl:' has not served a notice of motion to take the answer off 
 the file for irregularity, an order may be obtained, on motion of 
 course, or on petition of course at the Rolls, to amend the answer 
 by adding the name.* 
 
 An answer must, also, be signed by the defendant or defendants 
 putting it in,^ unless an order has been obtained to take it without 
 signature.'' Where an answer is put in by guardian or committee, 
 the signature of such guardian or committee is alone required ; 
 and if such guardian is also a defendant, and puts in an answer in 
 that character as well as in that of guardian, he need only afiix his 
 signature to the answer once.^ It is prudent, though not essential, 
 to sign each sheet of the answer. Where there are any schedules, 
 each schedule should be signed also.^ If the answer is j^ut in upon 
 
 c. xvrr. § 2. 
 
 proceedings, 
 when 
 
 omitted. 
 
 Signature of 
 dett-ndant; 
 
 or of guar- 
 dian, or 
 cununittee. 
 
 Signature to 
 schedules. 
 
 1 As to scandal, see an/e, p. 34G. 
 
 2 Ord. Vlll. 2. 
 
 8 See Wall v. Stubbs, vbi sup. A party- 
 has a right to suppose, that the pleading 
 served on him is a correct copy of tliat 
 filed ; and where the copy of an answer 
 contains neither the signature of solicitor 
 or counsel, nor has a. jural, the ])laintili° 
 may a])ply to take the answer off the files 
 for' irregularity. Littlejohn v. Munn, 3 
 I'aige, •2W. Where the an.-wer was put 
 in wiJhout the defendant's signature, it was 
 ordtTi'il to he taken off the tiles tiir irregu- 
 larity. Denison v. IJassford, 7 I'aigt!, 370. 
 l'<)r I'lrni of notice of motion, see Vol. 111. 
 
 * iiull c. (iriflin, 2 Anst. 5ti3. 
 
 ^ I'.raithwaile's I'r. 48; and see Harrison 
 V. Delmont, 1 I'ri. 1U8. 
 
 •> Ord. XV. .5; se(^ Kuli; 7 of Maine 
 (y'haiiicry rra<ti<e; 37 .Maine, .')83. 'i'he 
 answer must \>i- signed liy tlir <lrfen<lant, 
 though the oath he waived. Kimimll v. 
 Ward, Walk. < 'h. 43U. IJut it is not neces- 
 f*nry in all cases (hat an individual de- 
 fendant should writ(; his own name to an 
 annwiT. .SupiTvisDrs, v*i:c. v. Mississipjii, 
 &c. K.lt. ( o., 21 III. 338; Hatch V. Eusta- 
 jdiieve, 1 ( larki', tl3. 
 
 On a bill against husband and wife, the 
 
 husband is bound to enter a joint appear- 
 ance, and put in a joint answer, unless for 
 sufficient reason, as that the wife refuses to 
 join or to swear to a plea, he is permitted 
 by the Court to answer separately^ Leavitt 
 V. (Jruger, 1 I'aige, 421 ; t'ollard v. Smith, 
 2 IVasiey (N..I.), 43, 44, 45. 
 
 Defendants may answerjointly, or jointly 
 and severally or separately, but in either 
 case each defendant must .swear to his 
 answer, or it will be no answer as to him. 
 Hinnev's case, 2 iiland, UiJ. 
 
 7 Kiilton Bank v. IJeach, 2 I'aige, 306. 
 Although an oatli is not re(|uired. Deni- 
 son V. IJassfbrd, 7 I'aige, 370; Story Eq. 
 ri. § 87.0. Tlie signature nuiy be waived 
 by the ])laintitf; and the filing of a repli- 
 cation is evidence of such waiver ot' the 
 signature. Kulton l'.ank w. Heach, 2 I'aige, 
 30li; Collard v. Smith, 2 Beasley (N. J.), 
 43. ib. 
 
 riie answer of a corporation should be 
 signed by the ])rincipal officer. A secre- 
 tary, or cashiiT, in case of a bank, fre- 
 quently signs it also. ] Hoff. <'li. I'r. 23!»; 
 Supervisors, &c. V. Mississijipi, \c. li.K. 
 Co., 21 III. 338. 
 
 » Anon., 2, .1. & W. 553. 
 
 » Brailhwaile's I'r. 45, 342, n.
 
 "M 
 
 ANSWERS. 
 
 C. XVII. ^2. 
 
 In what cases 
 sijjnatiirf »Iis- 
 pensod with. 
 
 SijjTiatiire 
 must be 
 affixed to the 
 engrossment 
 or print. 
 
 Answer must 
 be upon oath ; 
 
 ontli, llio siii:Tinturo Tiiust hv alllxod, or acknowledcjed, in tlic pres- 
 ence ot" tlu' [lersdn Itetorc wlumi it is sworn ; ^ and he also must 
 sign oiK'h schedule, as well as the jurat.- 
 
 Sometinuvs the Court has, under sj)ecial circuTustances, directed 
 nn answer to be received, though it has not been signed by the 
 defendant ; as, Avhere a dcieiulant Avent abroad, forgetting, or not 
 having had time, to ])ut in his answer;" and where a defendant 
 had gone or was resident abroad, and had given a general power 
 of attorney to defend suits,* Where an answer was put in under 
 the authority of a power of attorney, the Court thought it better 
 to take the answer without any signature, than that the person to 
 whom the power is given should sign it in the name of the de- 
 fendant ; the poAver of attorney should be recited in any order 
 authorizing the answer to be put in under it.^ 
 
 The signature of the defendant must be affixed to th& engross- 
 ment or print, and not to the draft : the object in requiring it being 
 to identify the instrument, to which the defendant has given the 
 sanction of his oath, for the purpose of rendering a conviction for 
 perjury more easy." 
 
 Unless the Court otherwise directs, the answers of all persons- 
 (except persons entitled to the privilege of peerage, or corporations 
 aggregate) must be put in upon the oath of the parties putting, in 
 the same,' where they are not exempted fi-om taking an oath by 
 
 1 Ord. XV. 5. 
 
 2 Braithwaite's Pr. 342, n. ; and see post, 
 p. 74G, n. 
 
 3 V. Lake, 6 Ves. 171; v. 
 
 Gwillim, ib. 285 ; 10 Ves. 442 ; Dumond v. 
 Magee, 2 John. Ch. 240. 
 
 ■4 Bayley v. De Walkiors, 10 Ves. 441 ; 
 Harding v. Harding, 12 Ves. 159. 
 
 5 IJayley v. iJe \Valkiers, ubi svj>. 
 
 Harr. by Newl. 170. 
 
 " An answer should be regularly signed 
 and sworn to. Fulton Bank v. Beach, 2 
 Paige, 307; S. C. 6 Wend. 30; Trumbull 
 V. Gibbons, Halst. Dig. 172; Salmon v. 
 Claggett, 3 Bland, 125; liogers v. L'ruger, 
 7 John. Ch. 557; Van Valtenburg r. Al- 
 berry, 10 Iowa (2 With.), 2G4; Story E(i. 
 PI. § 874; Rule 7 of Maine Chancery 
 Practice. This rule in Jlainc gives the 
 sub.stance of the oath to be administered; 
 and it provides that the certihcate of the 
 magistrate must state the oath adminis- 
 tered. 37 Maine, 583. 
 
 "Answers," in New Hampshire, "un- 
 less required by the bill to be under oath, 
 need not be sworn to, and they will then 
 be regarded only as i)ieadings, and no 
 exception for insuflicieney can be taken 
 thereto." Kulc 9 of Chancery Practice. 
 See Dom v. Baver, id Md. 144; Mahaney 
 V. Cozier, 16 Md. 09 ; Shepard v. Pord, 10 
 Iowa (2 With.), .502; Blakemore v. Allen, 
 10 Iowa (2 With.), 550. 
 
 A defendant has a right to put in his 
 
 answer under oath, although not required 
 by the plaintiff. White v. Hampton, 9 
 Iowa(l With.), 181. 
 
 The 59th E([uity Rule of the United 
 States Courts, declares, "Every defendant 
 may swear to his answer before any jus- 
 tice or judge of any Court of the United 
 States, or betbre any commissioner ap- 
 jjointed by any Circuit Court to take testi- 
 mony or depositions, or before any Master 
 in Chancery appointed by any Circuit 
 Court, or before any Judge of any Court 
 of a Slate or Territory." 
 
 In New Jersey, an answer must be sworn 
 to before a Master of the Court or before a 
 commissioner authorized for that purpose; 
 and an answer sworn to betbre a iTotarj' 
 public, of the State of Connecticut, was 
 considered irregular, as filed without oath. 
 'J'rumbull v. Gibbons, supra. In Mary- 
 land, an answer sworn to before a justice 
 of the peace, in another State or in the 
 District of Columliia, who is certified to 
 be a justice of the peace at the time, is re- 
 ceived as suflicient. Chapline v. Beatty, 
 1 Bland, 197; Lingan v. Henderson, 1 
 Bland, 240; Gil)son v. Tilton, 1 Bland, 
 352. As to New York, see 1 Barb. (jli. 
 Pr. 145, 140. As to New Hampshire, 
 Chancery Rule, 30, 38 N. H 611. 
 
 A detendant pre])ared an answer admit- 
 ting the aih^gations of the plaintiff's bill, 
 and it was certified as sworn to; but the 
 person certifying did not style himself in
 
 FORM OF ANSWERS. 
 
 735 
 
 any statute in that behalf.^ Persons entitled to the privilege of C. XVII. § 2. 
 peerage answer upon protestation of honor ; and corporations 
 aggregate put in their answer nnder their common seal." The 
 Secretary of State for India, and the Attorney-General, respec- 
 tively sign, but do not swear to their answers ; and such answers 
 are received and filed without an order dispensing with the oath.^ 
 
 The oath, when administered to a person professing the Christian 
 religion, is upon the Holy Evangelists.* But persons who do not where de- 
 beUeve the Christian oath, must, out of necessity, be put to swear ^ ciTristian. 
 according to their own notion of an oath ; ° therefore, a Jew may 
 be sworn upon the Pentateuch with his hat on ; ® and a Heathen 
 
 the certificate a justice of the peace, nor 
 was he otlierivise proved to be a magis- 
 trate empowered to administer oaths; tlie 
 defendant died, and this paper so certitied 
 was alterwatds tiled in the clerk's office, 
 and it was held not to be the answer of the 
 party, nor evidence in the cause. Sitliug- 
 ton I". Brown, 7 Leigh, 271. 
 
 1 See Stat. 7 & 8 Will. III. c. 34, § 1 ; 
 8 Geo. I. c. 6, § 1; 22 Geo. II. c. 30, § 1; 
 lb. c. 4(i, § 36 ; li Geo. IV. c. 32, § 1 ; 3 & 4 
 Will. IV. c 4'J; ib. c. 82; 1 & 2 Vic. c. 77; 
 and see ib. c. 105. Parties, if conscien- 
 tiously scrupulous of taking an oath, may, 
 in lieu tliereif, make solemn affirmation 
 to the truth of the facts stated by them, 
 in the U. S Courts. Equity Rule, al. So 
 in Massachusetts, and other States, either 
 by statute or rule of Court. It is to be 
 observed, that an affirmation cannot be 
 taken under a conunission authorizing 
 the commissioners to take an answer 
 upon oath, i'arke v. Christy, 1 Y. & J. 
 533. 
 
 •^ Ord. XV. 6. The answer of a corpo- 
 ration is put in without oath, under the 
 corporate seal. 1 Ilotf. Ch. Pr 239; see 
 Vermilyca v. I'ulton Hank, 1 Paige,* 37; 
 pulton Hank v. N. Y. & Sharon Canal Co., 
 1 Paige, 311; Baltimore & Uhio U.K. Co. 
 V. (jity of Wheeling, 13' <Jratt. 40; 1 
 Grant Ch. Pr. J20; Angell & Ames Corp. 
 § liO.O vl itq.; llaight c. I'rop. otMorris 
 Aqueduct, 4 Wa.-^h C. C. 001 ; Chainplin 
 t>. Corjioration of New York, 3 Paige, 
 573. An answer of a corporation, put in 
 witliout tlii'ir seal, was suppressed aa ir- 
 ngular, in Kansoiii v. Stoinngton Savings 
 liank, 2 l!ca-l.-y (.N. J.), 212. But it was 
 hi'ld in the .^anic case that the corporation 
 may ado[it and us-e any .'■•■al, — as a bit of 
 pajicr altailied by a water, — pru hue 
 rii^ ibtd. ; Mill Dam Foundry «. Ilovey, 
 21 Pick. 417 If the feal is dispensed 
 with, it fhould be liv leave of tlu; (jourt 
 previously olitaini'd and lor good cau.se 
 shown. "iJansom v. Stonington Savings 
 Bank, uhi supra. The |>laintilf caniU)! 
 conipi-l the officers, even tlir)se who have 
 signed it, to swear to it. 1 llolf. <'h. Pr. 
 2-'W; Bnimlv i". Tin; Westchester Manuf. 
 So., 1 .loliii. Ch. :j0fj; see Kiltr.-ilgi; v. 
 Clarcmont Bank, 1 Wood. & M. 241. But 
 
 where it is the object of the corporation to 
 obtain the dis.solution of an injunction, it 
 is necessary to have the answer verilied by 
 the oath of some of the corporators, or 
 officers of the corporation, who are ac- 
 quainted with the tacts; as the injunction 
 cannot be dissolved upon an answer with- 
 out oath, denying the equity of the bill. 
 Fulton Bank v. New York and Sharon 
 Canal Co., 1 Paige, 311. 
 
 Individual members of a corporation 
 may be called upon to answer to a bill of 
 discovery under oath ; but in that case the 
 individuals must be named as defendants 
 in the bill. Brumly v. Westchester Manuf. 
 So., 1 John. Ch. 306; Bulbrd v. Kucker, 4 
 J. J. Marsh. 551; Vermilyca v. Fulton 
 Bank, 1 Paige, 37. As to making officers 
 and members of corporations parties for 
 discovery, see unle, 135, notes. The an- 
 swer of a corporation, under its seal, is 
 something more than a pleading, and 
 where it negatives the bill, warrants the 
 dissolution of an injunction, llogan v. 
 Branch Bank of Decatur, 10 Ala. 485. A 
 foreign corporation cannot be compelled 
 to tile an answer; and the want of an 
 answer, where it was not needed for the 
 purposes of discovery, was held no good 
 objection on a motion to dissolve an injunc- 
 tion. Bait. & Ohio U.K. Co. v. City of 
 Wheeling, 13 Gratt. 40. 
 
 It is desirable, though not essential, that 
 the affixing of the seal should be attested 
 by some olHcial of the corporation. Braith- 
 waite's Pr. 53. For forms of oalh, affirm- 
 ation, and attestation, see Vol. 111. Coale 
 V. Chase, 1 Bland, 137; Gibson v. Tilton, 
 1 Bland, 355. 
 
 3 For form of special attestation to the 
 signature of the Secretary of State, see 
 Vol. 111. 
 
 •• J'>xcept in ca.ses within the stat. 1 & 2 
 Vic. c. 105, jwst, p. 740. Where that Act 
 is inapplicable, a Christian, in making 
 oath, hiilds the book in his right liaml, the 
 hand l)eing uncovered, and, ni the case ot 
 a male imimiu, the head Ixing uncovered 
 also, lirailliwaite's Pr. 31.'t. 
 
 6 Omychund v. Barker, 1 Atk. 21, 40. 
 
 « llinde, 228; see 'i'ryatt r. Find", 3 
 Kdw. Ch. 23'J. But, though the head be 
 covered, the right hand in which the hook
 
 736 
 
 ANSWERS. 
 
 V. XVll. § 
 
 Oath or sig- 
 nature may 
 bo (.ii.-ipc'iised 
 with, bj' or- 
 der. 
 
 limy bo sworn in the manner most binding on his conscience. In 
 J\((/)ikisM/i{(i(i( V. JiurAcr,^ m liere the (leUiidant to a cross-bill was 
 resident in the East Indies, and professed the Gentoo religion, tlie 
 Court directed a commission to the East Indies, and em])o\vered 
 the commissioners to administer the oath in the most solemn man- 
 ner as in their discretion should seem meet, and, if they adminis- 
 tered' any other oath than the Christian, to certify to the Court 
 what was done by them. 
 
 Sometimes an answer is put in without oath, or without oath or 
 signature, and this practice is frequently resorted to in amicable 
 suits;'- such an answer, however, cannot be received, unless an 
 order to that elFect has first been obtained. This order may be 
 obtained upon motion,^ or upon petition of course at the Rolls ; * 
 the application is usually made by petition. If the answer is to 
 be put in without oath, and the plaintitt" ai)plies for the vrder, no 
 consent is necessary ; but if the defendant ai)plies, the plaintiff's 
 solicitor must instruct counsel to consent to the motion, or must 
 subscribe his own consent to the petition, as the case may be.'^ If 
 
 is held, must be uncovered. A Jew maVi 
 if he pleases, be sworn while his head is 
 uncovered. Braithwaite's i'r. oi'S. 
 
 >■ 1 Atk. 19, 20. For form ol' jurat in 
 the case of a Hindoo, see Braithwaite's 
 Oaths in Chan. 81). 
 
 2 An answer may by consent of the 
 plaintitt be received without beiiij^ sworn 
 to. Contee v. Dawson, 2 Bland, 2(j4:; 
 Fulton Bank v. Beach, 2 Paige, ^07 ; Bil- 
 lingslea v. Gilbert, 1 Bland, 5l)7 ; see lieed 
 t'. Warner, 5 Paige, 650. And in New 
 York the tiling of a replication is evidence 
 of such consent. Fulton Bank v. Beach, 
 2 Paige, 307. But it is otherwise in New 
 Jersey; Trumbull v. Gibbons, Ilalst. Dig. 
 172 ; and in Maryland, Nesbitt v. Dellani, 
 7 Gill &i J. 4!>4. 
 
 3 Hinde, 228. 
 
 4 Braithwaite's Pr. 47. For form of 
 order on motion, see Seton, 1254, No. 2; 
 and lor forms of motion paper and peti- 
 tion, see Vol. 111. 
 
 « Where the parties agix-e, that the an- 
 swer may be received without oath or sig- 
 nature, it is of course for the Court so to 
 order. Fulton Bank v. Beach, 2 Paige, 
 307; S. C. Wend. 36; Trumbull v. Gib- 
 bons, llalst. Dig. 172; Billingslea v. Gil- 
 bert, 1 Bland, 567. 
 
 It is provided by statute in Massachu- 
 setts, that an answer -shall be supported 
 by oath, unless waived by the adverse 
 party. Genl. Sts. c. 113, § 5. And the 
 rule of Court is that, "when a bill shall 
 be filed other than tor discovery only, the 
 plaintiff may waive the necessity of the 
 answer being made on the oath of the de- 
 fendant ; and, in such cases, the answer 
 may be made without oath, and shall have 
 no other or greater force a.s evidence than 
 the bill. No exception for insuliiciency 
 
 can be taken to such answer." Rule 8. 
 Answers in New Hampshire need not be 
 sworn to unless an oath is required by the 
 bill; if not sworn to they will be regarded 
 only as pleadings, and no exception tor 
 insutliciency can be taken thereto. Rule 
 'J of Chancery Practice; 38 N. II. 606. 
 This provision, authorizing the plaintitf to 
 waive an answer on oath Irom tlie defend- 
 ant, has introduced a new principle into 
 the system of Equity jjleading. 'Iliis jjro- 
 vision was intended to leave it optional 
 with the plaintiff to compel a discovery 
 from the defendant in aid of the suit, or to 
 waive the oath of the defendant, if the 
 I)laintiff was unwilling to rely upon his 
 )iou*sty, and chose to establisli his claim 
 by other evidence alone. He has no right, 
 therefore, to call upon the dereiidant lor a 
 discovery as to a part of tiie matters of his 
 bill, and to deprive the defendant of the 
 benetit of his answer on oath, as responsive 
 to other matters stated in the bill. He 
 must waive an answer on oath as to every 
 point of the bill, or to no part thereof. 
 And after the defendant has i)ut in an an- 
 swer on oath as to the whole or any part 
 of the bill, it is too late for the itlaintitf to 
 get rid of the consequences of a denial 
 upon oath of all or any of the matters of 
 the bill. An amendniciit in that stage of 
 the suit, waiving an answer on oath, is 
 irregular and cannot be allowed. If the 
 plaintiff is unwilling to rely upon an an- 
 swer on oath to the amendments, his only 
 remedy is to dismiss the bill, and com- 
 mence a new suit, in which suit he can 
 waive an answer on oath. Burras v. 
 Looker, 4 Paige, 227; 1 ll(jlf. (.'h. Pr. 
 234, 235; Bingham v. Yeoniaiis, 10 Cush. 
 58; Chace v. Holmes, 2 Gray, 431. 
 
 The plaintifl', who has waived an an-
 
 FORM OF AXSWERS. 
 
 737 
 
 the answer is to be put in without oath or signature, the consent 
 of the party not applying is requisite.^ It is usual for the jjlain- 
 tiflf's soUcitor to require to see the draft or a copy of the proposed 
 answei', before he apj^lies or consents to the defendant's a})jjlica- 
 tiou, in order that he may be satisfied that it is sufficient : - as no 
 exceptions can be taken to an answer put in without oath or sig- 
 nature, or attestation of honor.^ 
 
 If the answer is i)ut in by a guardian ad litem, or committee, 
 the order should express that the answer is to be put in without 
 the oath or signature of such guardian or committee ; and the 
 order will not be acted u])on, if it bears date antecedently to the 
 order appointing the guardian.^ So, likewise, an order to file 
 the separate answer of a married woman, without oath or signa- 
 ture, will not be acted on, if dated previously to the date of the 
 order giving her leave to answer separately.^ 
 
 The Court will not permit the answer of a defendant, represented 
 to be in a state of incapacity, to be received without oath or sig- 
 nature, though a mere trustee and without interest: the proper 
 
 C. XVII. § 2. 
 
 swer on oath, cannot apply to have the 
 answer taken otl' the lile on the ground 
 that the defendant knows it to be wliolly 
 untrue. Denison v. Bassford, 7 Faige, 
 370. All material allegations of the bill 
 may be proved as if tliey had been dis- 
 tinctly put in issue by the answer ; and if 
 no replication is filed, the matters of de- 
 fence set up will be considered as admitted 
 by the plaintiff, as in the case of a sworn 
 answer. 1 Hot}'. Ch. I'r. 235. Although 
 the plaintiff in an injunction bill waive an 
 answer on oath, the defendant may tile it 
 on oath for the purpose of moving to dis- 
 solve the injunction, or discharge a ne 
 exeat. 1 lloff. (Jh. Pr. 2:Jo; Dougrey y. 
 Topping, 4 Paige, 94; Mahaney v. Lazier, 
 10 Aid. d'J. In such case, the unsworn 
 answ(-r is no evidence on which to dissolve 
 an injiHution. Haincy r. Kainey, 35 Ala. 
 282; Mahaney I'. Lazier, lUttniprn. Where 
 the dcfenilunts are not jointly interested in 
 respect to thr; claim made against them by 
 the bill, the j)laintilf may waive an an- 
 swer on oath as to some of them and not 
 a.s to the others. Uulkley v. Van Wyck, 
 6 I'aige, h'M>\ Morse r. "Hovev, 1 IJarb. 
 (Jh. 404; S. ('. 1 .Sandf. C." 187 ; see 
 Stephenson ?'. Stcidienson, I'aige, ;J5.'J. 
 
 The ilefendant has been held entitled to 
 an.swcr und('ro;ith, although the bill waived 
 a sworn answer. White; i-. IIamj)lon, 10 
 Iowa (2 With.), 2.(«; S. (J. U Iowa (1 
 With.), 181. 
 
 Altlidiigli where an answer on oath is 
 waived, it is not (^videm-e in favor of the 
 defendant for any purpuse at the hejiring, 
 even when actually sworn to, vet, as a 
 pleading, the ]ilaintiir may avail himsidf 
 of adniisr.i<.ns and allegations made then in, 
 which establish the case macb' by his Ull ; 
 Bartlett v. Gale, 4 I'aige, 504;'Moore v. 
 VOL. I. 
 
 Hunter, 1 Oilman, 317; see Storv Eq. PI. 
 § 875; Miller v. Averv, 2 Barb.'Ch. 582; 
 Wilson V. Towle, .36 X. II. 12:); and for 
 the purpose of ascertaining what points 
 are at issue. Dorr v. Boyer, 10 Md. 144; 
 Durfee v. McClurg, C Mich. 223; Smith v. 
 Potter, 3 Wis. 432; Union Bank of George- 
 town t'. Geary, 5 Peters, 99, 110, 112; 
 Story Eq. PI. § 875 a, and note. It seems 
 to be doubted by Mr. Justice Story, 
 whether the j)laintiff should have the 
 power to deprive the defendant of the 
 effect of his answer by dispensing with 
 the oath, and at the same time use the 
 answer for the benefit of his own case. 
 Story 1^1. PI. § 875 a. 
 
 1 Braithwaite's Pr. 47; and see 
 
 V. Lake, (j Ves. 171; v. (iwillim, ib. 
 
 285; Baylev v. l)e Walkiers, 10 Ves. 441 ; 
 Codner «. Hersev, 18 Ves. 4(!8. It would 
 seem from the language of some of the 
 books, that if the plaintilf chooses to dis- 
 pense with the oath, the Court, upon his 
 nu>tion, will recjuire the (h^lendant to an- 
 swer without oath, even without the con- 
 sent of the defendant. Cooper Va\. PI. 
 325; Story E(|. I'l. § 874. But in all such 
 cases the ilis|)rnsation is supposed to be 
 made for the convenience of the defendant, 
 and upon his expressed or presinned con- 
 went. The aiiplication may be made on 
 the jtart of the ]ilaiiiliff (u-" of the defend- 
 ant, but the oilier will only be niiiile where 
 both parties consent, and not against the 
 will of either. Brown v. Bulklev, 1 .Mc- 
 ( arter ( N. .1 . ), 301! ; llinde, 228 ; Codner v. 
 llersey, iihi mi/irn. 
 
 '^ Braithwaite's Pr. 48. 
 
 3 Hill V. Earl of But.;, 2 Fowl. i:.'c. Pr. 
 10. 
 
 Braithwaite's Pr. 47. 
 
 6 Ibid. 
 
 Answer by 
 guardian ad 
 litem, or 
 committee. 
 
 Separate 
 answer of 
 married 
 woman. 
 
 Answer of 
 imbecile de- 
 fendant, not 
 to be taken 
 without oath 
 or signature. 
 
 47
 
 738 
 
 ANSWERS. 
 
 Attestation ot 
 honor mav 
 bo (ii 
 with, 
 onler. 
 
 siionsi'd 
 bv 
 
 ('. xvii.§ :\. course, in such case, being for the Court to appoint a guardian by 
 \vho!u tlio (U^fendant may answer.^ 
 
 The method of dispensing with tlic attestation of honor of a 
 peer or peeress jnitting in an answer, is, mutatis mutandis, the 
 same as the method adopted for disj)ensing witli tlie oath of a 
 commoner.^ 
 
 The signature to an answer taken without oath must be attested 
 by the defendant's soUcitor, or l)y some person coni])etent to be a 
 Avitness : otherwise, the answer cannot be filed. The attestation 
 is written on the left-hand side of the signature,' 
 
 An answer put in without oath or attestation of honor or signa- 
 ture, anil accepted without either of those sanctions, gives the same 
 authority to the Court to look to the circumstances denied or ad- 
 mitted in the answer so put in, for the purpose of administering 
 civil justice between the parties, as if it was put in upon attesta- 
 tion of honor or upon oath.* No exceptions, however, as we have 
 seen, can be taken to an answer so put in.* 
 
 Attt'Statiiin 
 off^ipiaturo 
 nocfssarv to 
 auswiT with- 
 out oatli. 
 
 Answer witli- 
 out oatii, i^c, 
 re<;ar<h'(t, 
 with rosjH'ct 
 to it.s con- 
 tents, as it" on 
 oath; 
 
 but cannot be 
 excepted to. 
 
 Section III. — Swearing, Filing, and Printing Answers. 
 
 Time for 
 answering, if 
 interrogated : 
 
 Amended 
 bill. 
 
 answering 
 amendments 
 and excep- 
 tions to- 
 gether. 
 
 Consequences 
 of not an- 
 swering the 
 same. 
 
 A defendant required to answer a bill, whether original or 
 amended, must put in his plea, answer, or demurrer thereto, not 
 demurring alone, within twenty-eight days from the delivery to 
 him, or his solicitor, of a copy of the interrogatories which he is 
 required to answer.^ If the plaintiff amends his bill, after interrog- 
 atories to the original bill have been served, but before answer, 
 the twenty-eight days will be comj)uted from the service of the 
 amended or new interrogatories ; or if no such interrogatories are 
 served, then from the service of a copy of the amended bill.'' 
 Where a defendant is required to answer amendments and excep- 
 tions together,* he must put in his further answer, and his answer 
 to the amendments of the bill, wnthin fourteen days after he shall 
 have been served with interrogatories for his examination, in an- 
 swer to the amended bill.^ If he does not, and procures no en- 
 largement of the time allowed, he will be subject to the following 
 liabilities : — 
 
 I Wilson V. Grace, 14 Ves. 172; Matter 
 of liarber, 2 .John. (Jh. 2^5; and see Order 
 YII. ;{; ante, p. 170. 
 
 ■■i Ilinde, 228. 
 
 3 Bruithwaite's Pr. 47, 48. For form of 
 attestation, see Vol. III. 
 
 * I'er Lord ICldon, in Curling v. Mar- 
 quis 'iown.shend, I'J Ves. C28, G;J0. 
 
 5 Hill V. Earl of Bute, 2 Fowl. Ex. I'r. 
 10. 
 
 « Ord. XXXVII. 4; 15 & IG Vic. c. 86, 
 § 13; ante, p. 485. 
 
 7 IJraithwaite's Manual, ITifi. Where 
 tlic (U^fi'ndant is served abroad, the times 
 are regulated by the special order direct- 
 ing such service. Ante, p. 452. 
 
 « A7ite, p. 413. 
 
 '•» Ord. XXXVII. 6.
 
 SWEARING, FILING, AND PRINTING ANSWERS. 
 
 739 
 
 1. An attachment may be issued against him,^ C. xvii. § 3. 
 
 2. He may be committed to prison, and brought to the bar of 
 the Court.^ 
 
 3. The plaintiff may file a traversing note ; or proceed to take 
 the bill pro confesso against him.^ 
 
 If the defendant, not being in contempt, submits to exceptions 
 to his answer for insufficiency before they are set down for hearing, 
 he has fourteen days from the date of the submission within which 
 he must put in his further answer.^ If, not being in contempt, he 
 submits to the exceptions after they are set down for hearing, or 
 the Court holds his first or second answer to be insufticient, he 
 must put in his further answer within such time as the Court may 
 appoint.* If he does not answer Avithin the above periods, or ob- 
 tain further time and answer within such fui-ther time, the plaintiff 
 may sue out process of contempt against him.^ 
 
 If a defendant is not required to answer a bill, he may put in a 
 plea, answer, or demurrer, not demurring alone, within fourteen 
 days after the expiration of the time within which lie might have 
 been served with interrogatories for his examination, in answer to 
 such bill ; ® but not afterwards, without leave of the Court.'^ It 
 follows from these rules, that if a defendant, served within the 
 jurisdiction of the Court, appears within the time limited, he has 
 thirty days from the service of the bill,^ or, if he does not appear 
 within the time limited, twenty-two days fi-om the time of his 
 actual appearance," within Avhich he may put in a voluntary 
 answer. 
 
 If the plaintiff amends his bill, without requiring an answer to amended bill. 
 
 Where ex- 
 ceptions are 
 submitted to 
 before the}- 
 are set down ; 
 
 or after they 
 are set down, 
 or after first 
 or second 
 answer held 
 insufticient. 
 
 Consequences 
 of default. 
 
 Time for 
 answering, if 
 not interro- 
 gated : 
 
 original bill ; 
 
 1 Ante^ Chap. X. § 1. If the defendant 
 is a peer, M. P., corporation aggregate, or 
 non coiii/jiig, or the Attorney-General, the 
 process is of a difl'erent kind; aiUe, Chap. 
 A. § '2. 
 
 '■* ibid.; see an<f, pp. 514, .518. In Massa- 
 chusetts, " if the defendant shall nf>t aj^jiear 
 and file his answer, plea or demurrer, witiiin 
 one month after tlie day of apix'urance, 
 the plaintiff may enter an order to take his 
 bill for confessed, and the matter thereof 
 shall be decreed accordingly, unless good 
 cause shall appear to the contrary." liule 
 9 of the Iliiles lor Practice in ('hancery. 
 
 As to (he course of practice in th<' Court 
 of Chancery, heretofore existing in New 
 York, in regard to the time of tiling an- 
 swers, and applications for the extension 
 of time, see 1 lloff. Ch. I'r. 2-28; 1 IJarh. 
 Ch. I'r. 140, 147. A defendant may, on 
 motion, obtain further time to answer. 
 (Carroll r. I'ars(in«, 1 Uland, \2'). .\fler a 
 demurrer overruled, an order for further 
 time to answer merely, can be obtained 
 only by a sjtecial a]>plication. Trim r. 
 Uarker", I'. & l{. 2.').'1. After a plea over- 
 ruled, an order for further time to answer, 
 
 obtained as of course, is irregular. Fer- 
 rand r. I'elham, T. & K. 404. A notice 
 of an application for time to answer, and 
 an affidavit filed in support of it, acc<u'd- 
 ing to the Irish practice, prevent all further 
 proceedings by tlie plaintiff, until the no- 
 tice is regularly disposed of I)y the Court. 
 Ormsbv r. Palmer, 1 Ilogan, 1!J1; see 
 Burralt r. Uaineteaux, 2 Paige, .'J.'il; Hunt 
 1". Wallis, 6 Paige, 371; Kurd c. Haines, 
 (t Paige, (104. After an order, allowing 
 further time to answer, it is in-egular for 
 the defendant to demur. Davenport r. 
 .Sniffen, 1 Parb. 223; Lakens r. Melden, 
 11 Paige, G44; Ikdell v. Bedell, 2 liurb. 
 Ch. !)». 
 
 3 Ord. XVI. 0. 
 
 * Ord. XVI. 14. If the defendant is in 
 contempt, on the allowances of exceptions, 
 he cannot apjily for further time, \\heat 
 r. (iraliam, .''i Sim. ij'O. 
 
 '• Onl. XVI. l."^.. 
 
 « Ord. .W.WII. 5. 
 
 •J 1.^ & Hi Vic. c. 8fl, § 13. 
 
 8 Ord. X.3; Ord. XI. 5; (Jrd. XXXVII. 
 5. 
 
 ^ Ibid. ; Braithwaitc's Manual, 150.
 
 740 
 
 ANSWERS. 
 
 C. XVII. § 3. 
 
 Whore de- 
 t'oiuiant has 
 been dis- 
 cliarijt'd from 
 custody, iKit 
 haviiif,' been 
 broujjht to 
 the bar in due 
 time. 
 
 Answer can- 
 not, except 
 by leave, be 
 tiled at^er 
 service of 
 traversing 
 note. 
 Separate 
 answer of 
 married 
 woman. 
 
 Pending the 
 giving secu- 
 rity for costs, 
 time not 
 reckoned. 
 
 Judge may 
 enlarge the 
 time to 
 
 Extension of 
 time: how 
 obtamed. 
 
 tho ainoiuliiuMits!, :i dcteiKlant who lias answered, or lias not been 
 required to niisMcr, tlie original bill, but desires to answer the 
 amended bill, musl jmt, in his answer thereto within fourteen days 
 after the expiration of the time within wliieh, if an answer had 
 been required, he mi<iht have been served with interrogatories for 
 his examination in answer to sueh amended bill, or within sueh 
 further time as the Judge may allow ; in this case, therefore, the 
 defendant has thirty days, from the service of the amended bill, 
 within which he must ])ut in his voluntary answer.^ 
 
 Where an attachment for want of answer has been executed 
 against a defendant, but he has been discharged from ])rison or 
 from the custody of the sergeant-at-arras, or messenger, because he 
 was not brought up to the bar of the Court Avithin the proper 
 time,-^ he must })ut in his answer Avithin eight days after such dis- 
 charge ; and if he does not do so, a new attachment for want of 
 answer may be issued against him.^ 
 
 After a traversing note has been filed and served, a defendant 
 cannot put in his answer without special leave of the Court.* In 
 such a case, the defendant should move to take the traversing note 
 off the file, with leave to put in an answer.^ 
 
 A married woman answering separately, under an order, has the 
 full time from the date of the order to do so.® 
 
 The day on which an order that the plaintiff do give security 
 for costs is served, and the time thenceforward, until and including 
 the day on wdiich such security is given, are not reckoned in the 
 computation of time allowed a defendant to plead, answer, or de- 
 mur, or otherwise make his defence to the suit.^ 
 
 If a defendant, using due diligence, is unable to put in his 
 answer to a bill witliin the time allowed, the Judge, on sufficient 
 cause being shown, may, as often as he shall deem right, allow to 
 such defendant such further time, and on such, if any, terms as to 
 the Judge shall seem just.^ 
 
 Applications for further time to answer are made by summons at 
 
 1 Ord. XXXVII. 7; Cheeseborough v. 
 Wriglit, 28 Beav. 173 ; Braithwaite's 
 Manual, 156. 
 
 2 See antt, pp. 400, 494. 
 
 3 Ord. XII. 2, :i. 
 
 * Ord. XIII. 7; ante, p. 515. 
 
 6 Tuwne v. Bonnin, 1 De G. & S. 128; 
 ante, p. 516. For form of notice of mo- 
 tion, see Vol. III. 
 
 6 A7ite, p. 183; Braithwaite's Manual, 
 11, 12; Jackson v. Haworth, 1 S. & S. 
 161. 
 
 ■ Ord. XXXVII. 14. 
 
 8 Ord. XXXVII. 8; 15 & 16 Vic. c. 86, 
 § 13. A defendant has the whole of the 
 last day, specified in the order to answer. 
 
 in which to serve his answer. Hoxie v. 
 Scott, 1 ('larkc, 457. And after the time 
 of answering has expired, the defendant 
 may serve an answer at any time before 
 an order to take the bill as confessed is 
 actually entered with the clerk. Hoxie v. 
 Scott, 1 Clarke, 457. But the Court may, 
 in its discretion, receive or reject an an- 
 .swer filed after the regular time for answer- 
 ing has passed, and the motion for leave 
 to tile it and the decision should appear in 
 the record. Lindsey v. Stevens, 5 Dana, 
 185; see Scales v. Nichols, 3 Ilavw. 2-iO; 
 Fisher v. Fisher, 4 Jlcn. & M. 4S'4; Daly 
 V. Duggan, 1 Irish Kq. 315; Va.ssar v. 
 Hill, 1 Hayes, 355.
 
 SWEARING, FILING, AND PRINTING ANSWERS. 
 
 741 
 
 Service of 
 summons. 
 
 Hearing of 
 application. 
 
 Chambers ; ' and should be supported by affidavit, that due dili- C. xvii. § 3. 
 gence has been used, and that fiirther time is necessary.^ If the 
 defendant has not been interrogated, he or his soHcitor must also 
 swear, that he is advised and believes that it is necessary, for the 
 purposes of his defence, that he should put in an answer, and that 
 the a])i)Iication is not made for the purpose of delay .^ 
 
 The summons must be sei"ved on the solicitor for the plaintiff 
 two days before the return thereof, exclusiA'e of Sunday,* unless a 
 shorter return be granted, by special leave, on issuing the sum- 
 mons ; and a printed copy of the bill, and the interrogatories, if 
 any, to be answered, must be produced at the hearing of the ap- 
 plication.^ An affidavit in opposition to the application may 
 be filed, and either party may use any affidavit previously filed. 
 Notice of the intention to use an affidavit must, however, be 
 given.® If the plaintiff's solicitor is not in attendance when the 
 summons is called on, an order may be made in his absence, on a 
 case for further time being shown, and subject to the production 
 of the office copy of an affidavit of service on him of the sum- 
 mons.'' This affidavit should, in strictness, be produced to the 
 Chief or Junior Clerk, before the Chambers close on the day the 
 application is heard. 
 
 The order on the summons is drawn up in Chambers, and must 
 be entered at the entering seat in the Registrar's Office.* 
 
 The written consent of the plaintiff's solicitor to further time 
 being given will be acted on at Chambers, without his attendance ; 
 but care should be taken, in draAving up an order thereon, that the 
 tenns of the consent are strictly jnirsued; thus, a consent to fur- 
 ther time "to answer," will not justify an order being drawn up 
 for time " to plead, answer, or demur." ^ 
 
 The Judge is expressly empowered to impose terms, on an ap- 
 jdication for further time : ^" and, as a general rule, the costs of the Costs, 
 first application will be made costs in the cause, but those of sub- 
 sequent flpjdications will be ordered to be paid by the defendant. 
 It may also be here observed, that if any person who has obtained 
 
 1 1.5 Si 10 Vic. c. 80, § 20. Under some 
 (tptcial rirciinisfaiices tlie application sliould 
 \>f made to tix; (.'oiirt. Manchester and 
 Shedieifl llaihvav Conipanv r. Worksop 
 Board r,f Healtfi, 2 K. & J. 25. J"or 
 fonns of HiimnionM, sec Vol. III. 
 
 2 15roun r. I.ce, 11 Ikav. 102; 12 .lur. 
 687. In practice, however, further time is 
 usually Kranteil, on the first application, 
 without an atlidavit. P"or fonn of aflidavit, 
 8ec V'ol. FII. 
 
 ' I-'or form of affidavit, see Vol. III. 
 
 * Ord. X.XXV. 7; Ord. XXXVII. 11. 
 The summons must be served lieforc two 
 o'clock rin a Saturday, and before seven 
 o'clock on any other day. Ord. XXXVII. 2. 
 
 Order. 
 
 Consent to 
 order. 
 
 5 He;,nilations, 8 Aug:., 18.57, r. 2. 
 
 6 Ord. XXXV. 27. For form of notice, 
 see Vol. III. 
 
 " Kor tiirm of affidavit, see Vol. III. 
 
 8 Ord. XXXV. .32; Ord. I. 18. No 
 service of an order for time is now neces- 
 sary. 2 Smith's I'r. i:il. 
 
 '•>' Aiiit', p. (iiiO; Newman v. White, 10 
 Heav. 4; and see Hunter v. Nockolds, 2 
 I'hil. r)4(); 1 2. lur. 14'.». 
 
 1" Ord . X X X V 1 1 . H. See on this point, 
 Zulueta r. \'incnt, lb IJeav. 57.5; see also, 
 l.ee V. Read, Ij Heav. .'IS I. ;W0 ; .lur. 
 1020; 2:i()rd Dec , 18').'); Sau<l Ord. 781; 
 licav. Ord. 51 ; Ord. XXXV. 01
 
 742 
 
 ANSWERS. 
 
 c. xvn.5 ;!. 
 
 Time granted 
 on counsel's 
 certilicate. 
 
 Return of 
 summons. 
 
 Attachment 
 irregular, 
 pending 
 decision on 
 application. 
 
 Application 
 irregular, 
 after attach- 
 ment issued. 
 
 No motion 
 for decree, 
 pending time 
 to answer. 
 
 Engrossment 
 or printing of 
 answer. 
 
 any dooree or order upon i-onditioii, doos not pei-form or comply 
 with such condition, he will be considered to h:ive waived or aban- 
 doned such order, so far as tlie same is beneficial to himself; and 
 any other person interested in the matter may, on breach or non- 
 ]ierformance of the condition, take either such ])r<)ceedin<:;s as the 
 order may in such case warrant, or such proceedings as might have 
 been taken if no such order had been made, unless the Court 
 otherwise directs.^ Under the old practice, when a defendant 
 obtained further time, or permission for any other thing upon a 
 condition, if he neglected to ])erform the condition, he lost all 
 benefit of the permission ; but the Court could not compulsorily 
 direct the performance of the condition."^ 
 
 Where the a])plication for further t'nne came on in open Court, 
 and counsel certified that he required further time, it was given.^ 
 The necessity of the defendant being enabled to state liis own 
 defence, as well as give the discovery required by the plaintiff, will 
 be taken into consideration.^ 
 
 The summons for further time to put in the answer should be 
 maile returnable before the expiration of tlie time which the de- 
 fendant already has for that purpose : ^ for, if returnable after such 
 time, an attachment may be issued, even though the summons has 
 been served,^ An attachment, however, which has been issued 
 after the hearing of an application for further time, and pending 
 the decision uj>on it, is irregular, and will be discharged.'' 
 
 The defendant cannot, in strictness, apply for further time after 
 an attachment has actually been issued against him, for he- is then 
 in contempt ; * but Avhere an application in such case is entertained, 
 and an extension of time is granted, it should appear by the order 
 that it is made "without prejudice to the attachment issued against 
 the said defendant for want of answer." 
 
 If the Court grants any further time to any defendant for ])lead- 
 ing, answering, or demurring to the bill, the ))laintifi''s right to 
 move for a decree is, in the mean time, sus))ended,^ 
 
 The answer having been drawn, or perused and settled by coun- 
 sel, must be written bookwise,^" or printed,^^ on paper of the same 
 size and description as that on which bills are printed.-^- Any 
 
 1 Ord XXIII. 22. 
 
 2 lienlev v. Stone, 4 Beav. 392, 394; 
 Judd V. W'artnaby, 2 M. & K. 813, 816. 
 
 3 Byng V. Clark, 13 Hcav. 92 
 
 4 Y(jrk and North Midland Railway v. 
 Hudson, ib m. 
 
 6 Sec, Ord. XXXVII. 18. 
 
 6 liraithwaite's Pr. 56. 
 
 "! Davi.s V. ToUemache, 2 Jur. N. S. 564, 
 V. C. S. ; see also Taylor v. Fisher, 6 
 Sim. 560; Barritt v. Barritt, 3 Swanst. 
 395, 397. 
 
 8 Wheat V. Graham, 5 Sim. 570, de- 
 cided on the 8lh (Jrd. of 3 April, 1828; 
 Sand. Ord 714; Bcav. Ord. 7. 
 
 '■> 15 & 16 Vic. c. 86, § 13; see post, 
 Chap. XX., Motion for Decree. 
 
 1" Ord. 6 March, "1800, r. 1. 
 
 11 lb. r. 5; as to printing answers, see 
 2^<>st, pp. 755, 756. 
 
 12 As to such paper, see Ord. IX. 3, ante, 
 p. 361; but an answer not so written lias 
 been allowed to be filed, under special cir- 
 cumstances'; the application in such case
 
 SWEARING, FILING, AND PRINTING ANSWERS. 743 
 
 schedules or documents annexed to the answer must be Avritten on C. XVII. § 3. 
 
 paper of the same kind as the answer itself.^ Dates and sums ' y ' 
 
 occurring in the answer should be expressed by figures, instead of Schedules. 
 
 words.- ^'^'^^ ^'^ 
 
 sums. 
 
 The Clerk of Records and Writs may refuse to file an answer in 
 which there is any knife erasure, or which is blotted so as to oblit- 
 erate any word, or which is improperly written, or so altered as to {),'Ky'^*'?h* 
 cause any material disfigurement ; or in which there is any inter- ticattd; 
 lineation : unless the person before whom the answer is sworn duly 
 authenticates such interlineation with his initials, in such manner 
 as to show that it was made before the answer was sworn, and so 
 to mark the extent of such interlineation.^ Where the answer is except where 
 sworn before one of the Clerks of Records and Writs, and is there- sworn before, 
 upon left in his custody, he does not usually authenticate the Record and ' 
 interlineations;^ and where, in the case of a joint answer, it is ^^"t clerk. 
 intended to have it sworn by some of the defendants at the Record whereaiiswer 
 and Writ Clerks' Office, and by others elsewhere, it is the practice Jo"^'^- 
 to have it sworn by such other defendants first : if this is not done, 
 and the answer is taken away from the Record and Writ Clerks' 
 Office before it is filed, it must be resworn by the defendants who 
 were sworn to it at that office.^ 
 
 If, after the answer has been sworn, there is discovered any Re-swearing: 
 defect in the formal parts, such as the title or jurat, or any un- when 
 
 , . , , . .... , \^ , necessary. 
 
 authenticated alteration or mterlineation, the answer must be 
 resworn, unless the plaintiff* will consent that the answer be filed 
 notwithstanding such defect."" The consent may be indorsed by When dis- 
 the plaintiff" or his solicitor on the answer itself; or an order of by"^ousent. ' 
 course, may, with his consent, be obtained at the Rolls, on a peti- 
 tion of course, allowing the answer to be filed ; but the defect 
 must be specified in the consent or order.'' The giving such con- f„nseniience3 
 sent will not waive the right to except to the answer for scandal ot'couseut. 
 or insufficiency ; but as it might aflfect an indictment for perjury, 
 the plaintifl^'s solicitor should, as a general rule, see the answer 
 before the consent is given.* 
 
 The answer must, as has been before stated,® unless an order has 
 been obtained to file it without oath, or without oath or signature, 
 be signed and sworn by the defendant.^" Under the old practice, 
 
 must alwavH be made to the Court. Ilarvry ^ Ihul. ; Attorncy-Oonera! r. Hudson, 9 
 
 V. liradliv, low. li. 70."), M. R.; Whale Hare Ap. (l.'t; 17 .liir. 205. 
 
 V. (iriditl'iH. 10 W. R. 571, [.. .I.I.; Mor- « Sec Sittington v. Rrown, 7 Leigh, 
 
 ris V. Ilofieycomlie, 2 N. R. Hi, V. C. W. 271 ; itnlc, p. i:\\ note. 
 
 1 Whale" w. (irilHths, uhi sup.; under '' Hrailliwaile's Fr. 48; but see Pilking- 
 
 spnrial rircum.Mtances, schedules not so ton v. Himsworth, 1 Y. & C. I'"..\. <>I2. 
 
 written were allowed to be (lied : S. C. For forniH ol" con.scut and ])etitioii, .sec Vol. 
 
 ■■^ Ord. (i .March, \HW, r. ;); Ord. IX. 3. III. 
 
 3 Ord. I. .'((i; 15 & Jfi Vic. c. 80, § 25. « Rraithwaitc's Pr. 48. 
 
 « Braithwaitc's I'r. 52. » yln^c, p. 734. 
 
 • W yln/e, pp. 734, 735 and notes. I'orNcw 
 
 How i*won).
 
 744 
 
 ANSWERS. 
 
 C\ XVII. $ ,!. 
 
 Coinini<sion!!, 
 within juris- 
 diction, 
 abolisbod. 
 
 Hotore A\ho!n 
 
 sworn : 
 
 in luiLdand. 
 
 Commis- 
 sioners to 
 administer 
 oaths in 
 Chancery. 
 
 Out of Ens- 
 land, but 
 within the 
 dominions of 
 the Queen : 
 
 it wns iieci'ssaiy, wIicm-c tlio nnsw(M- was upon oath, and was intcnd- 
 0(1 to be sworn boyond twenty miles from London, that a commis- 
 sion should issue for the purpose of taking it. Now, however, the 
 ])ractice of issuing commissions to take pleas, answers, and dis- 
 chniners, in causes jieuding in the Court, has been a])()lished witli 
 respect to pleas, answers, and disclaimers taken within the jurisdic- 
 tion of the Court ; and any such plea, answer, or disclaimer may 
 be filed, without any furtlicr or other formality than is required in 
 the swearing and tiling of an affidavit.^ 
 
 AVhere the answer is sworn Avithin the jurisdiction, it must, if 
 t.-dcen in London, or within ten miles of Lincoln's Inn Hall, be 
 sworn before a Clerk of Records and Writs,^ the Clerk of Enrol- 
 ments in Chancery," or a London Commissioner to administer oaths 
 in Chancery ; ^ and, if taken, in any ])lace in England or Wales, 
 ten miles or more from Lincoln's Inn Hall, before a Commissioner 
 to administer oaths in Chancery in England.* The Commissioners 
 to administer oaths in Chancery in London and England are 
 a]ipointed by the Lord Chancellor, and are, in practice, solicitors 
 of ten years' standing.^ The London Commissioners have power 
 to administer oaths at any place within ten miles of Lincoln's Inn 
 Hall,® and the Country Commissioners at all other places in 
 England and Wales.'' 
 
 Where the answer is taken in Scotland, Ireland, the Channel 
 Islands, the Isle of Man,^ or in any place in foreign parts under 
 the dominion of her Majesty,^ it may be sworn before any judge. 
 Court, notary public, or person legally autliorized to administer 
 oaths in such country or place respectively ; and the Court of 
 Chancery will take judicial notice of the seal or signature of such 
 judge. Court, notary public, or person attached or subscribed to 
 the answer.^" In the case of an answer taken in the Channel 
 
 Hampshire, see 38 N. 11. Oil, Chancery 
 Rule, 30. In the United States Courts, 
 every defendant may swear to liis answer 
 before any justice or judge of any Court of 
 the United States, or before any commis- 
 sioner appointed by any Circuit Court to 
 take testimony or depositions, or before 
 any Master in Clianccry ajipointcd by any 
 Circuit (Jourt, or before any judge of any 
 Court of a State or Territory. Equity 
 Rule, 59. 
 
 1 15 & 16 Vic. c. 80, § 21. The form of 
 oath to lie administered to the defendant 
 is not altered In' tlii.s enactment. Attorney- 
 General V. Hudson, 9 Hare Ap. 03; 17 
 Jur. 205. 
 
 2 Ord I. 39. 
 
 8 10 & 17 Vic. c. 78. § 2. 
 
 * lb. § 1; Ord. IV. tlic f<,llowing fees 
 are payable to the person taking an an- 
 swer: before an otiicer of tiie (nurt, l.s. 
 6c/., payable in stamps, but nothing for 
 
 marking exhibits; before a London com- 
 missioner. Is. 0'/., and Is. for marking 
 each exhibit; and before a country com- 
 missioner, 2.*!. (j(J., and Is. for eacli exhibit; 
 10 & 17 Vic. c. 78, § 2; Regul. to Ord. 
 Sched. 2, 4. 
 
 5 16 & 17 Vic. c. 78. For the course of 
 procedure to o1)tain such appointment, see 
 iJraithwaite's Oaths in (Ihiin. 4-11. 
 
 « 10 & 17 Vic. c. 78, § 2; Jie Record 
 and Writ Clerks, 3 De (J., M. & G. 723; 
 18 .Jur. 499; Hill v. Tollit, 3 De G., M. & 
 G. 725, n. 
 
 7 10 & 17 Vic. c. 78, §§ 1, 5; Ord. IV. 
 
 8 See 10 & 17 Vic. c. 78, § 6. 
 
 9 For a list of tliese places, see Braith- 
 waite's Oaths in Chan. 18-20; and jmsL 
 Vol. HI. 
 
 10 15 & 10 Vic. c. 86, § 22. This section 
 is retrospective; IJateinan v. (look, 3 De 
 G., M. & G. 39; and see Ilaggett w. luiff, 
 5 De G., M. & G. 910; 1 Jur. N. S. 49.
 
 SWEARING, FILING, AND PRINTING ANSWERS. 
 
 745 
 
 Islands, or the Isle of Man,^ or in Scotland or Ireland,^ it may also 
 be sworn before Commissioners ai^jjointed by the Lord Chancellor 
 to act in such places, respectively. 
 
 Where the answer is taken in any place out of the dominions of 
 her Majesty, it may be sworn before any British ambassador, 
 envoy, minister, charge d'affiiires, or secretaiy of legation or of em- 
 bassy, exercising his functions in any foreign country, or before 
 any British consul-general, or consul, vice-consul,^ acting consul, 
 pro-consul, or consular agent exercising his functions in any for- 
 eign place,^ w^hose seal or signature, affixed, impressed, or sub- 
 scribed on or to the answer, is admissible in evidence, without 
 proof of such seal or signature being the seal or signature of the 
 person whose seal or signature it purports to be, or of the official 
 character of such person.^ 
 
 An answer may also be sworn abroad before commissioners 
 specially appointed for that purpose, according to the former prac- 
 tice of the Court, as hereafter explained.* 
 
 If the defendant is an inAulid, and resident at any place within 
 ten miles from Lincoln's Inn Hall, one of the Clerks of Records 
 and Writs will, upon a memorandum in writing bespeaking his 
 attendance being left with him, and upon his necessary expenses 
 being paid, attend upon such defendant, for the purpose of taking 
 his answer.'' It is, however, now more i;sual to procure the 
 attendance of a London Commissioner.® 
 
 In order to relieve persons in prison from the expense of pro- 
 curing the attendance of a Commissioner to take their answer or 
 affidavit, the Lord Chancellor may appoint the Warden, Keeper, 
 or other chief officer of every prison Avithin the city of London or 
 the bills of mortality, and their deputies, to be Commissioners, for 
 the purpose of taking and receiving such affidavits and ansAvers 
 as any person or i)orsons, Avithin any such prison, shall be Avilling 
 and desirous to make, and for no other purpose.® 
 
 The jurat to an answer should be Avritten, either at the end of 
 the answer or of the schedule thereto ;" it is usually placed at the 
 right-hand comer of the end of the ansAver." It may be Avritten 
 
 1 ](; & 17 Vic. c. 78, §§ 3, G. 
 
 2 fi & 7 Vic. c. 82, § 1. 
 8 1.-, & 16 Vic. c. 8r;, §22. 
 * fi (ifo. IV. c. 87, § 20; 18 & 19 Vic. 
 
 r. 42, § 1. Tiic«c -Acts (lo not nioiitiiii) an- 
 swers, l)iit tluTc can, it ]■< cmiccivcid, he no 
 doutit that tticv applv to liicni. 
 
 6 15 & 10 Vic. c. K § 22; 18 & 19 Vic. 
 c. 42. § -.i. 
 
 « Sec p<»t, pp. 747-752. 
 
 ' IJraitliwaitc's I'r. .')14. The memo- 
 randum must l)cur a 10j(. tec fuml stani|>; 
 Rc(;m1. to Ord. Si-hed. 4. Itcasonahic pay- 
 ment for travelling expenses will be qj- 
 
 lowed ; Braithwaifc's Oaths in Than. 27. 
 For form of memorandum, sec Vol. III. 
 
 8 If a conimission(;r attends elsewhere 
 than at liis own odicc to administer an 
 oatli, lie is cntltleil to reasonalilc ])aynient 
 for his travclliiij; expenses; hut tliere is no 
 fixed fee tor Ilis attendance. IJraitiiwaite's 
 I'r. .'149. 
 
 « 1 Will. IV. c. 30, § 15, r. 20; 16 & 17 
 Vic. c. 78, §§ 1, 5; and see 23 & 24 Vic. 
 c. 149, § 3; 25 & 20 Vic. c. 104; and ante, 
 pp. .Wl, 502. 
 
 '" Hraitiiwaito'a Pr. 342, n. (n). 
 
 " See Wliclpley v. Van Kl)ps, 9 Paige, 
 332. 
 
 C. XVII. § 3. 
 
 Out of the 
 dominions of 
 the Queen: 
 before a 
 Britisli repre- 
 sentative ; 
 
 before special 
 commis- 
 sioners. 
 
 Attendance 
 on invalid 
 defend.int 
 within ten 
 miles of Lin- 
 coln's Inn. 
 
 Prisoners. 
 
 Jurat:
 
 '4G 
 
 ANSWERS. 
 
 C. XVII. § .!. 
 
 Several de- 
 feudouts. 
 
 Time and 
 place. 
 
 Siiinaturc. 
 
 Schedules to 
 be siiTued. 
 
 Oath. 
 
 Where de- 
 fendant a 
 peer, corpo- 
 ration aggre- 
 gate, or 
 Quaker, &c. ; 
 
 or blind, or a 
 marksman. 
 
 Foreigner, 
 answering 
 in foreign 
 language. 
 
 on oithor sido of tlio piigo, or on tlio in;ir<;in ; but not on a page 
 u|HMi wliic'h no ]iait of tlio statements in the answer appears. If 
 there are many defendants who are sworn together, one jurat is 
 suttieient. If the defendants are sworn at different times, there 
 must be separate jur.its for each defendant, or each set of defend- 
 ants swearing. Tlie jurat must correctly ex])ress tlie time when, 
 and the place where, the answer is sworn.^ The defendant must 
 sign his name, or put his mark, at the side of the jurat : not 
 underneath it ; ^ and the person before whom the answer is sworn 
 must sign his name at the foot thereof; to which must be added 
 his full otHcial character and description:^ not necessarily, how- 
 ever, in his own handwriting. Any schedules should be signed, 
 •both by the defendant and the person before whom the answer is 
 sworn.^ The oath must be administered in a reverent manner,* 
 and, if not administered in the usual form, the autliority for the 
 form in which it is administered should appear in the jurat.^ 
 
 The answer of a person entitled to the privilege of peerage is 
 taken npon his protestation of honor ; ® that of a corporation 
 aggregate, under their common seal ; "^ that of a Quaker, Moravian, 
 ex-Quaker, ex-Moravian, or Separatist, upon his solemn affirma- 
 tion.^ 
 
 If the defendant be blind, or a marksman, the answer must be 
 first truly, distinctly, and audibly read over to him, either by the 
 person before whom it is sworn or some other person : in the first 
 case, it must be expressed in the jurat that the answer was so read 
 over, and that the signature or mark of the defendant was affixed 
 in the presence of the person taking the answer; in the second 
 case, such other person must attest the signature or mark, and 
 must be first sworn that he has so read Over the answer, and that 
 the signature or mark was made in his presence ; and this must be 
 expressed in the jurat.® 
 
 In the case of a foreigner, not sufficiently versed in the English 
 language to answer in that tongue, and desiring to answer in a 
 foreign language, an order of course to do so must be obtained, 
 on motion, or on petition at the Rolls. The answer must be 
 
 1 Ibid. ; 18 & 19 Vic. c. 134, § 15; Ord. 
 IV. The jurat to a bill is not rendered 
 defective by the absence of a statement of 
 the county where the bill was sworn to. 
 Barnard v. Darling, 1 Barb. Ch. 218; see 
 Smith Ch. Pr. (.M ed.)352. 
 
 2 Anderson v. Slather, 9 Jur. 1085. 
 
 3 Braithwaite's Pr. 342. This has been 
 held to be unnecessary, where the answer 
 is sworn before the (Jlerk of Enrolments; 
 Wilton V. Clifton, 2 Hare, 535; 7 Jur. 
 215; and is omitted by the liecord and 
 Writ (Jlerks, where answers are sworn be- 
 fore thera. 
 
 * Ord. XIX. 14. 
 
 8 1 & 2 Vic. c. 105; see Braithwaite's 
 Oaths in Chan. 25 ; and forms, rwsl, Vol. 
 III. 
 
 6 Ord. XV. 6; ante, pp. 734, 735; see 
 form. Vol. III. 
 
 "i Ord. XV. 6 ; ante, p. 735 and note. 
 
 8 Ord. XV. G; and statutes cited ante, 
 pp. 734, 735. As to the answer of the Sec- 
 retary of State for India, or of the At- 
 torney-General, sec a7Ue, p. 735. For 
 forms, see Vol. III. 
 
 '^ The attestation may be written near 
 the jurat. Braithwaite's Pr. 380, 396; and 
 .see Wilton v. Clifton, 2 Hare, 535; 7 Jur. 
 214. For forms, see Vol. III.
 
 SWEARING, FILING, AND PRINTING ANSWERS. 747 
 
 engi'ossed on paper, in the foreign language ; and the defendant, C. XVII. § 3. 
 together with an interpreter, must then attend before a person ' <~ — ' 
 authorized to administer oaths in Chancery ; the interpreter is 
 first sworn in English that he well understands the foreign lan- 
 guage, and that he will truly interpret the oath about to be 
 administered to the defendant ; and the ordinaiy oath is next ad- 
 ministered to the latter.^ The defendant must previously sign his 
 name opposite the jurat ; and the interpreter should do the same. 
 Before the answer can be filed, it is necessary to obtain an order 
 of course, either on motion, or on petition at the Rolls,- appointing 
 the interpreter or another person to make, and swear to the truth 
 of, a translation thereof, and directing the answer to be filed, with 
 such translation annexed.^ The translator must then attend with 
 the answer, translation, and order before a person authorized to 
 administer oaths in Chancery, and be sworn to the truth of the 
 translation ; * after Avhich, the answer and translation will be filed 
 at the Record and Writ Clerks' Oflice, on production of the order.^ 
 
 A foreigner may also answer in English, although ignorant of Foreigner, 
 that language.'' No order to do so is necessary ; but where the Ensiiish"^ *° 
 defendant is not sufiiciently versed in English to understand the 
 language of the answer, and of the oath, the answer must be inter- 
 preted to him by some person skilled in a language understood by 
 both ; after wliich, both must attend before a person authorized to 
 administer an oath in Chancery. The interpreter must first be 
 sworn that he well understands the foreign language ; that he has 
 truly, distinctly, and audibly interpreted the contents of the an- 
 swer to the defendant ; and that he will truly interpret the oath 
 about to be administered to him ; after which, the ordinary oath is 
 administered to the defendant, through the interpreter.'' The 
 defendant must, and the interpreter should, first sign the answer, 
 opposite the jurat.* 
 
 In all the above cases, the jurat nuist express that the necessary Special jurat, 
 formalities have been observed." 
 
 Formalities of a similar nature, by which it may appear that the Deaf, deaf 
 defendant fully imderstands the contents of his answer before he ;"'''!'"'"''' """ 
 
 J _ bliuu pcrsou. 
 
 is sworn to it, must be adopted where the defendant is deaf, or 
 deaf and duinl», and in every like case.^° In a case, however, 
 which occurred in the ISth Geo. II. (1745), a different course 
 
 1 For foriTiH of oath and jurat, sec Vol. ' St. Katlicrine Dock Conii>anv v. 
 III. Mantzgu. 1 Coll, 94; 8Jur. 2:)7; IJiaith- 
 
 2 For forms of motion paper and petition, waitc's I'r. 45,389. For forms of oaths, 
 «ce Vol. III. see Vol. III. 
 
 ' Sinimond.H t». Du IJarri'-, 3 I5ro. C. C. » For forms of jurats, see Vol. III. 
 
 2G3; Lord lielmore v. Anderson, 4 Hro. C. " Ihi'l. 
 
 C. 90. 10 Reynolds v. Jones, Trin. Term, 1818; 
 
 * For form of jurat, see Vol. III. Ikaithwaife's I'r. 383, 395; see Vol. III., 
 '' Hniithwaitf's I'r. 45. . for forms of jurats. 
 
 • Hayes v- Deguin, 1 Hogan, 274.
 
 748 
 
 ANSWERS. 
 
 C. XV11.§ ;!. 
 
 Irre<rnlarity 
 ill jurat must 
 bo exjirossly 
 waived. 
 
 Accidental 
 cancellation 
 of jurat. 
 
 When com- 
 mission to 
 take answer 
 is necessary. 
 
 Commission 
 must be 
 grounded on 
 an order: 
 Order, how 
 obtained. 
 Commis- 
 sioners how 
 nominated; 
 
 a]))H>ars to liave boon adoptod : for thorc the Court, on motion (the 
 clofondaut being deaf, and incapable of giving instructions for liis 
 answer), ordered a coniiiiission for taking the answer to issue in 
 the old way with the bill annexed, in order that the commissioners 
 themselves might endeavor to take the answer.^ 
 
 It is an universal princij^le, in all Courts, that any irregularity in 
 a jurat may, unless expressly waived, be objected to in any stage 
 of a cause. This does not depend u])on any objection which the 
 parties in a particular cause may Avaive, but upon the general nde 
 that the document itself shall not be brought forward at all, if in 
 any respect objectionable with reference to the rules of the 
 Court ; '^ and therefore a motion to take an answer off the file, on 
 the ground of such an irregularity was allowed, notwithstanding 
 the plaintift* had taken an office copy of the answer.' If, by any 
 accident, the jurat is cancelled, the answer must be resworn, and a 
 new jurat added,* 
 
 As we have seen, the practice of issuing commissions for the 
 purj)ose of taking answers is now abolished, in all cases where the 
 answer is to be sworn within the jurisdiction of the Court ;^ and 
 the various enactments, under which answers may be sworn out 
 of the jurisdiction, have been considered ; ® but, if no person can 
 be found who is authorized, under such enactments, to administer 
 the oath, a commission under the old practice is still necessary ; ' 
 and, consequently, the mode of proceeding in such case must be 
 stated. 
 
 A commission to take an answer abroad will only be issued upon 
 an order ; ® Avliich may be obtained, as of course,'' on motion or 
 petition.^** After the order has been obtained, the defendant's so- 
 licitor must give notice in writing to the plaintiff's solicitor, to fur- 
 nish him Avith the names of commissioners to see the answer taken, 
 on the plaintiff's part." 
 
 1 Gregory v. Weaver, 2 Mad. Prac. 363. 
 
 2 Pilkiiigton V. Himswortli, 1 Y. & C. 
 Ex. 612, 616; see Barnard v. Darling, 1 
 Barb. Ch. 218. 
 
 8 Jhifl., and see ante, p. 743. 
 
 * Attorney-(ieneral v. Hudson, 9 Ilare 
 Ap. 63 ; S. ('. nam. Attorney-General v. 
 Henderson, 17 Jur. 205; and see Attorney- 
 General V. Donnington Hospital, 17 Jur. 
 206, V. C. W. 
 
 6 1.5 & 16 Vie. c. 86, § 21; ante, p. 744. 
 
 6 Ante, pp. 744, 74.5; and see 6 (Jeo. IV. 
 c. 87, § 20; 6 & 7 Vic. c- 82; IT) & 16 Vic. 
 c. 86, § 22; 16 & 17 Vic. c.'78, § 6; 18 & 
 19 Vic. c. 42, § 1. 
 
 7 When the defendant is absent from 
 the country, the oath to his answer may 
 be taken under a commission. Trumbull 
 r. Gibbon, Halst. Dig. 225; Head v. Con- 
 gequa, 4 Wash. C C. 33.5; Stotesbury v. 
 Vail, 2 Beasley (N. J.), 390, 394. An 
 
 answer by a defendant bej'ond sea, must 
 be taken and sworn to before a commis- 
 sioner, under a dedimus issued by the 
 Court in wbiih the case is pending, direct- 
 ing him to administer the oath in the most 
 solemn forms observed by the laws and 
 usages of the countrj' where the answer is 
 taken. Read v. Consequa, 4 Wash. C. C. 
 335. In New York, an answer in Enuity, 
 must, if made by a person out of the State, 
 be sworn to before a judge of some Court 
 having a seal. A Master extraordinary, 
 in tlie ICnglish Court of Chancery, had not 
 the authority to administer such oath. 
 Lahens v. Fielden, 1 Barb. Ch. .52. 
 
 8 Baron de Feucheres v. Dawes, 5 Beav. 
 144. 
 
 '■> Veal's Pr. 52. 
 
 1" Eor forms of motion paper and petition, 
 see Vol. III. 
 
 11 For form of notice, see Vol. III.
 
 SWEARING, FILING, AND PRINTING ANSWERS. 749 
 
 The plaintiff's solicitor thereupon, if he intends to join in the C. XVII. § 3. 
 commission, should send the names of two or more commissioners ^— — y — -^ 
 to the defendant's solicitor, and inform him to which of them the where plain- 
 defendant is to give notice of executing the commission. The ^'*^J*^'°s; 
 defendant adds to these commissioners the names of two or more 
 on his own part ; ^ the names of all of them, or of the four agreed 
 upon, are inserted in the commission : the defendant's commission- 
 ers being placed first in order.- Two on each side are usually where plain- 
 named.^ If the plaintili''s solicitor omits to give his commissioners' ^''^'does not 
 
 ... 11- join- 
 
 names, withm a reasonable tmie, and will not consent to the com- 
 mission being directed to the defendant's commissioners only, it 
 seems the defendant should obtain an order of course on motion, 
 or on petition at the Rolls,* requiring the plaintiff to name com- 
 missioners within two days after notice of the order, or, in default, 
 that the defendant may issue the commission directed to his own 
 commissionei's.^ The order must be served on the plaintiff's 
 solicitor; and if, within the time prescribed, the plaintiff does not 
 furnish commissioners' names, the commission is made out in favor 
 of the defendant's commissioners only. 
 
 None of the commissioners need be professional men ; and it has ^iio may 
 been held that the defendant's own solicitor may be a commis- ^^P commis- 
 
 II' R T • 1 • • siouers. 
 
 sioner to take his answer.^ It is no objection to a commissioner 
 that he is under twenty-one years of age, provided he is of suffi- 
 cient age to take an oath.'' 
 
 Care must be taken to have the commission, with the answer, Return of 
 returned before the time limited for filing the answer has expired.^ commission. 
 
 The commission is prepared by the defendant's solicitor, and is How pre- 
 sealed by the Clerk of Records and Writs, u])on a praecipe being ^'''"*^" 
 left with him.' 
 
 Where the defendant is entitled to the privilege of peerage, the Where de- * 
 Words, "upon his protestation of honor" are inserted in the com- 
 mission, instead of the words, "on his corporal oath upon the Holy 
 Evangelists." ^^ 
 
 Where the defendant is a (Quaker, Moravian, Separatist, or other Whore de- 
 
 fi'iKlant is 
 
 1 Hinde, 231; 1 Turn. & Ven. 542; Ord. ^ Wyatt's P. R. 117. a/linu- 
 
 III- 1; 8 See IIiiKhcs v. Williams, 5 Hare, 211. 
 
 ■■^ Veal's I'r. 51. Issuinfj the rominission does not, ptr sf, 
 
 3 1 Turn. & Ven. 542; Veal's I'r. 51. extend the time tor answerinj;; and therc- 
 
 * For forms of motion paper and peti- fore the plaintitf, thou;;h lie has joined in 
 
 tion, see Vol. III. the commission, may issue an attacliment 
 
 ^ Ilinde, 221); Harr. by Newl. 171; 1 for want of answer, Iiefore the ri'tiini of the 
 
 Turn. & Ven. .')42. commission, if tlu! time for aiiswerin;; has 
 
 IJinl t'. I'.raiicker. 2 S. & S. 180; see exi.ired. Hosdietti r. I'ower, 8 IJeav. 180; 
 
 contrn, as to swiariiif; atli<la\ its within the llu(;hes ?'. Williams, uhi sup. 
 
 jurisdiction before the de[)onenl's own so- 'J Ord. III. 1; Ord. I. 37; for forms of 
 
 licitor, or Ills clerk, Jii' Hopm, 3 Atk. 813; praicipe, commission, and iiidorscnieiit, see 
 
 Hopkin I'. Ilonkin, 10 Hare Ap. 2; Wood Veal's I'r. 52, 57; and ;;<«/, Vol. Hi. 
 
 r. Harpur, 3 iJeav. 290; Foster i\ Harvey , i" Ilinde, 230, n. 
 
 (1 ). 11 W. K. 800, V. C. W. ; 3 N. li. 08, 
 
 L. JJ. 
 
 fendant is a 
 peer.
 
 750 
 
 ANSWERS. 
 
 C. XVII. ^3. 
 
 or is a Jew, 
 
 or a Pau;an. 
 
 Term? of com- 
 mission must 
 be strictly 
 adhered to. 
 
 How com- 
 mission 
 executed. 
 
 Notice, when 
 necessary. 
 
 Costs in 
 default of 
 attendance. 
 
 Notice, when 
 unnecessary. 
 
 person exempted from taking an oath by statute, the writ should 
 direct the commissioners to take the answer on his solemn dechira- 
 tion or afllrniation.^ 
 
 Where the dotendant is a Jew, the words, " upon the Holy Evan- 
 gelists," may be left out of the form of the oath mentioned in the 
 commission. 
 
 And where a defendant was a Gentoo, and the answer was to 
 be taken in Calcutta, the commission was directed to be in n 
 special form, authorizing the commissioners to administer the oath 
 in the most solemn manner, as in their discretion should seem 
 meet ; or, if they should think proper, to administer another oath, 
 certifying to the Court what they did.^ 
 
 The above distinctions in the form of commissions are necessary 
 to be attended to, because a commission to take an answer in one 
 form, will not authorize the commissioners taking it in another ; 
 thus, commissioners will not, under an authority to take an answer 
 upon oath, be empowered to take the affirmation of a Quaker ; and 
 where it appeared by the caption of the answer tliat they had done 
 so, the answer Avas ordered to be taken oft' the file.^ 
 
 The commission may be sent to some pi'ofessional person in the 
 foreign country, to take care that it is properly executed. Thoxigh 
 the foreign country be at war with this country, it must be exe- 
 cuted there ; in which respect, a commission to take an answer 
 difters from a commission to examine witnesses : which it seems 
 may be executed at the nearest neutral port.* The manner of ex- 
 ecuting the commission is as folloAVs : When the plaintitt'has named 
 commissioners, notice in writing, of the time and place of execut- 
 ing the commission, signed by two of the defendant's commisr 
 sioners, must be served upon the plaintifi''s acting commissioner, 
 six days before the day ap])ointed for executing the commission.^ 
 If this notice be given on a Sunday, the commission may be exe- 
 cuted on the Saturday following.^ 
 
 If the party Avho has the carriage of the commission gives 
 notice of executing it, but neither countermands it in due time 
 (as three or four days before the time, or as the distance of the 
 place may require), nor executes it at the time, the Court, on 
 motion, will order costs to be taxed for the adverse party's attend- 
 ance.' 
 
 Where the plaintiff* has not named commissioners, no notice 
 need be given, and tlie commission may be executed by the com- 
 missioners named in the writ, ex parte} 
 
 1 See statutes cited, ante, pp. 734, 7.35 n. 
 and form of commission. Vol. III. 
 
 2 Kamkissenscat v. Barker, J Atk. 19, 
 20; ante, pp. 7-3.5, 736. 
 
 3 Parke v. Christy, 1 Y. & J. 533. 
 
 * V. Romney, Amb. 62. 
 
 5 I''or form of notice, see Vol. III. 
 Wvatt's Pr. 1J5. 
 
 7 y//llG. 
 
 8 Ilinde, 2-34; 1 Turn. & Ven. 544.
 
 SWEARING, FILING, AND PRINTING ANSWERS. 751 
 
 On the day appointed, the commissioners are to meet, and if one C. XVII. § 3. 
 
 only attends on each side it will be sufficient ; but in case none of ^ y ' 
 
 the ])laintiff's commissioners attend, the defendant must have two Twocommis- 
 commissioners present : because no fewer than two can take his be present^*^ 
 answer, and return the writ.^ 
 
 It seems, that where there is a joint coinmission, and the com- How long 
 missioners of one party only attend, the commissioners in attend- ^'!'ait™"tho 
 ance may, after waiting till six o'clock in the evening, proceed to others. 
 take the answer." 
 
 When the commissioners are ready to proceed, the answer or Form of 
 plea, properly written, as before exj)lained,^ is produced to the an'answ^r? 
 commissioners, and the defendant attends for the purpose of swear- 
 ing it ; Avhereupon one of the commissioners, having opened the 
 commission, interrogates the defendant in the following manner : * 
 " Have you heard this your answer read ? and do you exhibit it as 
 your answer to the bill of complaint of A. B. ?" upon which, the 
 defendant answering in the affirmative, the commissioner ])roceeds 
 to administer to him the oath, or affirmation, or attestation of 
 honor (as the case may be), in the same form as when the answer 
 is sworn in England.^ 
 
 It is said, that conmiissioners may refuse to execute the commis- 
 sion, unless they are allowed to read the answer ; " and where a ^j^^^ ^g. 
 commission to take a defendant's answer only has been issued, and fciuiant 
 the defendant tenders a demurrer to the commissioners, and re- 
 fuses to answer upon oath, they must return such his refusal, and 
 the reason thereof, together with the demurrer, and leave the same 
 to the consideration of the Court.' 
 
 Before the defendant is sworn, as above stated, he must sign his Signature of 
 answer and each schedule thereto, in the presence of the com- d'^**-'"'^'^"'^- 
 missioners ; * and tlie answer thus taken, t(jgether with the sched- 
 ules (if there are any), are to be annexed to the commission, and 
 the commissioners must then write and sign the caption at the Caption. 
 foot of the answer.^ Any alterations made in the answer or 
 schedules, ])revious to tlie taking thereof, must be autlienticated by 
 the cominissiojiers, according to the j)ractice in use with respect to 
 affidavits.!'^ 
 
 Tliis caption must be varied according to the nature of tlie case ; Caption must 
 thus, in the case of a peer, it must state the answer to have been ic\,';r,'i'i'„'J; ,„ 
 
 tlie nature of 
 
 1 Wyatt's P. li. Jlfi; Ilin.lf, 2:t.5; 1 ' Wy.itt's I'. It. ] 18. the case; 
 Turn. & V..-n. 044. s orli. XV. Xu Whurc the defendant ia 
 
 2 WyaK's 1'. K. 110; sec (iriggs r. Mind, or deafand dunili, or a (Wnigner, or 
 Staph-e, II .Iiir. 920, V. C. K. H. a in.irksnian, (he directions l.rlore given in 
 
 8 yl"^^ J). 74.'J. fliise r<•^pl•(•ts. niiisl of eoursc lie attended 
 
 * Ilinile, a.'i.O; 1 Turn. & Vcn. .')44. fo, and the ia|pli(in varied accordingly. 
 
 * IhUi. ; iiute, p. G88. For forms, sec « lor form of caption, see Vol. 111". 
 Vol. III. 10 15 & i(j Vic. c. 80, § 2b; uuic, i). 743. 
 
 * Ilarr. l.y Xewl. J7C.
 
 lirj 
 
 ANSWERS. 
 
 C. XVll. § 3. 
 
 and must 
 nijri>i> with 
 tin- ]iowers of 
 tlio coinmis- 
 aiou. 
 
 Return. 
 
 Second com- 
 mission not 
 issued without 
 special order. 
 
 Costs, when 
 jecond com- 
 missinn 
 issued. 
 
 Commission 
 after insuffi- 
 cient answer. 
 
 taken '' ujxtii tho attost:iti«in of lionor;" in tlio case of a Quaker or 
 ^loravian, or other person oxenipted from taking an oath by statute, 
 it must be cxiiresseil to liave been taken ii])on the " solemn affirm- 
 ation;" and the thite when, and the place "where, it was taken 
 must also aj)pear in tlie caption. Care must also be taken to ex- 
 press correctly 'whether the doi'ument be an answer, or an answer 
 coupled with a j)k'a or demurrer.^ The commissioners should 
 also be particular, when the answer is by two or more defendants, 
 to state that they are all sworn : because, where the caption of the 
 joint and several answer of two defendants exjnx'ssed only that it 
 was sworn, without stating that the defendants w'ere both sworn, 
 the answer was suppressed.'^ 
 
 The ansAver and schedules, with the caption, being thus annexed 
 to the writ, the return must be indorsed upon the writ, and be 
 signed by two commissioners.' All these documents should then 
 be folded together, in a convenient size and form, and bound round 
 with tape or string: at the crossings of which the seals of the com- 
 missioners should be affixed ; they should then sign their names in 
 the vacant spaces, near their respective seals, enclose the whole in 
 an envelope, and direct and return the same to the defendant's 
 solicitor, to be filed. The oath of a messenger is not now re- 
 quired.'' 
 
 By the old practice of the Court, no second commission could 
 be granted without the special order of the Court, upon good 
 reason to induce the same, or upon the plaintiff's own assent ; ^ 
 and it does not appear that any alteration has been made in this 
 respect. If, therefore, a commissioner dies, application must be 
 made to the Court for a new conmiission : prej)aratory to which, 
 it seems that the usual course is for the solicitor to name two 
 more commissioners, one oY whom must be struck by the solicitor 
 of the adverse party, and the Court must then be moved for a new 
 commission, 'with the new commissioner added to those who are 
 living.^ 
 
 It" by the fault of the party who has the carriage of the fii'st 
 commission, the other is put to unnecessary charges, the Court will 
 order his costs to be taxed, and, ujion cause shown, direct the j)arty 
 in fault to give security to pay tliem before he has a second com- 
 mission ; and if lie has the carriage of the second commission, to 
 pay the costs upon that also, if he again fails.® 
 
 After an answer has been reported insufficient, no new commis- 
 sion will be issued, except by order made on affidavit showing 
 
 1 Hinde, S^G; 1 Turn. & Yen. 545. 
 
 2 Anon., Mos. 2.'i8. 
 
 3 Ilinde, 2.'50; Turn. & Yen. 545. 
 form of return, see Vol. III. 
 
 For 
 
 4 15 & to Vic. c. 80, §25. 
 6 Wyatt's P. K. 115. 
 
 « jfj. lie.
 
 SWEARING, FILING, AND PRINTING ANSWERS. 
 
 Too 
 
 some good reason, and payment of the costs of the insufficient 
 answer.^ A new commission may, however, be issued, upon the 
 consent of the phiintiff's solicitor : which is seldom, if ever, refused. 
 It seems that, if the return of a commission be delayed, it may 
 be hastened by motion. It seems, also, that an attachment and 
 other process of contempt may issue against the commissioners, 
 for not returning the commission with the answer.^ Where, how- 
 ever, it appeared that the omission to make a return arose from 
 the circumstance of one of the plaintiif 's commissioners refusing to 
 join with one of the defendant's, to take the answer, the attach- 
 ment was discharged, upon payment of the ordinary fees, and a 
 new commission was granted to diiferent commissioners named by 
 the defendant.^ 
 
 Where any irregularity has taken place in the execution of a 
 commission, the proper course appears to be, to move, after the 
 return, that the commission and answer may be quashed, or that 
 the answer may be taken off the file. 
 
 Where the friends of an infant wish to defend the suit on his 
 behalf, an order appointing a guardian ad litem may, as we have 
 seen,* be obtained on motion of course, or on petition of course at 
 the Rolls ; '" and where the defence of the infant is by an answer 
 or plea requiring to be upon oath, the plea or answer must be 
 swoni to by the guardian,'' unless an order has been obtained to 
 take it without oath. The guardian, however, only swears to his 
 belief in the truth of the defence of the infant.' The order ap- 
 pointing the guardian must be produced at the time the answer 
 is sworn ; and the jurat nmst express that the answer is sworn 
 pursuant to it.* 
 
 We have before seen, that a person who has been found a lunatic 
 by inquisition, answers by his committee, and that, in such case, it 
 is not necessary that there should be any order ai)i)ointing a guar- 
 dian, unless there be a contlict of interest between the connnittee 
 and the lunatic : in which case, a guardian ad litem should be ap- 
 
 John. 581 ; and the infant is not bound by 
 it, if he dissents within a ])r()])cr time. 
 .Jiinics V. .lames, 4 I'aige, 115; I'riitzniau 
 V. I'ittsell, ;i Hair. & .1. 77; Mills v. Den- 
 nis, 'i Jiiliii. C'li. ■Mil \ Winston v. Cani])- 
 bell, 4 Hen. & M. 777 ; Mason v. Dcbow, 
 '2 llayw. 178. Sueh answer eannot be read 
 aj^ainst the infant. Stejihcnson i'. Stejtlicn- 
 !»<)n, \'i\\y!,c, .'J.Vt. Nor is it cvidenie ni his 
 favor, though it be responsive to the bill 
 and sworn to l)y liie guardian ad Utun. 
 Uidkley v. Van Wyek, 5 I'aige, W-iW; 
 Stephenson v. Stephenson, Paige, -tO;}. 
 
 f Uraithwaitc's Vr. 393 ; see form of 
 oath. Vol. III. 
 
 8 Ord. VII. 4; Uraithwaite'."* Pr. 393. 
 For form of jurat, see Vol. III. 
 
 C. XVII. § 3. 
 
 Attachment 
 to enforce 
 return. 
 
 Irregularities 
 in return, how 
 remedied. 
 
 Infant defend- 
 ant: defends 
 by guardian. 
 
 Answer or 
 plea is sworn 
 to by guar- 
 dian. 
 
 Lunatic de- 
 fendant found 
 lunatic by 
 inquisition, 
 defends by 
 committee : 
 
 1 Beames's Ord. 183; Harr. by Newl. 
 202. 
 
 2 Wvatt'sP. li. IIG. 
 
 3 IbU. 
 
 * Ante, p. IGO. 
 fi In the United States Courts, guardians 
 
 ad litem to defend a suit may be apjiointed 
 by the Court, or by any .Judge thereof, for 
 intants or other jxthohs, who are under 
 guardianshi|>, or otherwise incajiable to sue 
 for themselves; all infants and other pcr- 
 Bons so incapable, may sue by their guai^ 
 dians, if any, or by their prochtin ami, 
 Bubject, however, to such onlers as the 
 Court may direct for the protection of in- 
 fants ami other persons. i'>|uity liule, 87. 
 And it is termed his answer, ami )iot 
 that of the infant. Itogers v. Cruger, 7 
 VOL. I. 48
 
 ANSWERS. 
 
 C. XVll.^ 
 
 Marrioil 
 wiuium 
 defendant ; 
 
 where she is 
 an infant. 
 
 Distinctive 
 marks. 
 
 Answer to be 
 filed at Rec- 
 ord and Writ 
 < 'lerlis' Office. 
 
 Indorsement 
 1 if name of 
 solicitor or 
 party filing 
 answer. 
 
 pointed.^ A person of weak or luisouiul mind,- not so f»)und l>y 
 inquisition, answers by his guardian, who is appointed in the same 
 manner as the guardian ad litem of an infant defendant ; * and, as 
 in the ease of infants, tlie guardian only swears to his belief in the 
 trutli of the defence, where an oath is required,^ and the order ap- 
 pointing the guardian must be produced at the time the answer is 
 sworn; and the jurat must express that the answer is sworn pur- 
 suant to it.^ 
 
 With respect to married women, we have before seen,^ that 
 where a husband and Avife are defendants to a bill, neither of them 
 can regularly put in an answer without the other, except under an 
 order granted for that purpose.'' Where, however, the wife is 
 defendant to a bill filed by her husband,* or, being judicially sepa- 
 rated, or, having obtained a protection order, is sued as a feme 
 sole,^ no order is requisite. Where she answers separately, under 
 an order, her time for answei'ing runs from the date of the order.^" 
 Where the answer is filed under such an order, the jurat should 
 state that the answer is sworn pursuant to the order," and the 
 order should be produced at the time the answer is sworn : other- 
 wise, the order must be produced when the answer is presented 
 for filing.^^ 
 
 Where a married woman is an infant, her answer cannot be 
 taken, either jointly or separately, until a guardian has been as- 
 signed to her.^^ 
 
 An answer is filed in the Record and Writ Clerks' Office, in the 
 same manner as an affidavit ; " and is not considered of record 
 until filed.^^ The year, letter, and number by which the cause is 
 distinguished in the Record and Writ Clerks' Books,'^ and the date 
 of the filing, must be written or printed on the first page." 
 
 The name and place of business or residence, as the case may 
 be, of the solicitor or party filing the answer, and his address for 
 service, if any, must be indorsed thereon, as in the case of other 
 
 1 Ante, p. 175. 
 
 2 Superannuated persons, on proof of im- 
 becility, may appear and answer by guar- 
 dian. Matter of Barber, 2 John. Ch. 235; 
 see Murkle v. Murkle, 4 John. Ch. 168. 
 
 3 Ante, p. 17tj; Braithwaite's Pr. 393, n. 
 
 4 For form of oath, see Vol. III. 
 
 5 For form of jurat, see Vol. III. 
 
 6 Ante, pp. IbU, 1*2. 
 
 7 A joint answer of husband and wife 
 must be sworn to by both, unless the 
 plaintiff con.sents to receive such answer 
 upon the oath of the husband only. New 
 ■iork Chemical Co. v. Flowers, « Paige, 
 654; Leavitt?;. Cruger, 1 Paige, 422. 
 
 « Ante, p. 179; Earl v. Ferris, 19 Beav. 
 
 67; 1 Jur. N. S. 5. 
 
 s* Ante, p. 178. 
 
 l« Ante, pp. 183, 740; Jackson v. Ha- 
 
 worth, 1 S. & S. 1(51; Braithwaite's Man- 
 ual, H, 12. 
 
 11 If not so verified, the answer will be 
 suppressed for irregularity. But the irregu- 
 larity will be waived l)y the plaintiff's 
 filing a replication. Fulton Bank v. Beach, 
 2 Paige, 307 ; S. C. 6 Wend. 30 ; CoUard 
 V. Smith, 2 Beasley (N. J.), 43, 45; see 
 Leavitt v. Cruger, 1 Paige, 432; Ferine v. 
 Swaine, 1 John. Ch. 24; Smallwood v. 
 Lewin, 2 Beasley (N. J.), 123, 125. 
 
 1'^ Braithwaite's Pr. 45, 397, n. 
 
 13 Colman v. Northcote, 2 Hare, 147; 7 
 Jur. 528. For petition to assign guardian, 
 and afHdavit in support, see Yol III. 
 
 14 15 & 16 Vic. c. 86, §§ 21, 25; Ord. I. 
 35. 
 
 15 Ord. VIII. 3. ' 
 le Ord. I. 48. 
 17 Ord. I. 45.
 
 SWEARING, FILING, AND PRINTING ANSWERS. 755 
 
 pleadings and proceedings.^ If the answer is put in without oath C XTII. § 3. 
 
 or signature, the order must be produced at the time the answer is '^ y ^ 
 
 presented for filing, and the record is inscribed " Without oath 
 (or, without oath or signature, as the case may be), by order dated 
 the day of . " ^ Where the answer is put in by a guar- 
 dian, and the order appointing the guardian has not been previously 
 entered at the Record and Writ Clerks' Office, it must also be 
 prodiiced when the answer is presented for filing.^ 
 
 Unless the plaintifi" has taken some step which j^revents its re- where an- 
 ception, an answer will be filed bv the Record and Writ Clerk, f ^''^J, "l'"*^ .,. 
 
 J, . . . "... . . . ' be filed with- 
 
 after the expiration of the time for putting it in, where it is put in out order, 
 by a defendant who has been required to answer the bill, whether of°ime.°"*^ 
 original or amended, or where, the plaintiff having amended his 
 bill without requiring an answer, it is put in by a defendant who 
 has already answered or pleaded to the bill.* In all other cases, when order 
 an answer will not be received, after the exj^iration of the time necessary. 
 within which it ought to have been put in, except under the 
 authority of an oi'der : which must be produced at the time the 
 answer is presented for filing.^ Such order must be ap^ilied for by 
 summons.® 
 
 As an answer is not strictly reputed such until filed,'' it ought Answer not 
 not to be filed until the costs of contempt for not answering, if ^[[.^'^^'^'^ ^''^ 
 incurred, are paid. It is frequently, however, the practice to file Contempt, 
 the answer before the costs of contempt have been paid, and in ^'°^*^ waived. 
 such case, the plaintiff must be careful not to take an office copy 
 of the answer, or do any other act which may be construed into 
 an acceptance of the answer: for, if he does, he will waive the 
 contempt.* The certificate of the Record and Writ Clerk is Record and 
 conclusive evidence as to the time at which the answer was WntClerk's 
 
 certificate 
 filed.® conclusive, as 
 
 Notice of the filing of the answer must be served on the solid- h"ling!^ ^ 
 
 tor of the ])laintitt" or on the plaintiff lumself if he acts in person. Notice of 
 
 before seven o'clock in the evening of the same day that the an- ^^^"^s- 
 
 swer is filed: except on Saturday, when it must be served before 
 
 two o'clock in the afternoon.^" The omission to give due notice of Effect of 
 
 having filed the answer will not, however, render the latter inop- "'."'^'^'o" *" 
 _ o _ ' ' 1 give notice. 
 
 erative : thus, it will not deprive the defendant of his right to 
 move to dismiss the bill for want of prosecution, at the expiration 
 of the period allowed for that purpose, from the date of filing the 
 
 1 Ord. III. 2, 5; onte, pp. 453, 454. lias filed it. Giles v. Eaton, 54 IMaiiie, 18G. 
 
 2 I'iraitliwaite's Pr. 47. If the ilcfcndant dies before filing bis an- 
 2 lOid. swer, it caiiiint lie filed by his solicitor as 
 
 * III. 55, 50. au answer, (iiles v. Eaton, ubi supra. 
 
 * Jh. 51!. 8 Ante, p. 50!). 
 
 6 l-'or form of summons, see Vol. I IF. o Ik-avan v. Burgess, 10 Jur. 63, V. C. 
 
 1 Ord. VIII. .'i. An answer to a bill in E. 
 
 equity, <onii)lete in every resj)cct, caniiot !» Ord. III. !); XXXVII. 2. 
 be treated as an answer, until the |iarty
 
 756 
 
 ANSWERS. 
 
 ('. XV11.§ .1. 
 
 rriiitiii!» 
 answers: 
 
 copy for 
 printor. how 
 aullu'iiti- 
 cHtetl ; 
 
 within what 
 time readv. 
 
 How printed. 
 
 Certified 
 print to be 
 left, witliin 
 four days of 
 tiling auswer; 
 
 otlierwise, de- 
 fendant liable 
 a.s if no 
 answer filed. 
 
 Where an- 
 swer in a 
 foreign 
 language. 
 
 answer.^ It would seem th:it, in such a case, the time allowed tlie 
 ]>laintiff for taking the next step in tlie cause will, on lus motion, 
 be extended, so as to give him the benefit of the time he would 
 otlierwise have lost in consequence of the omission." 
 
 If the defendant files a written answer, he must, at the time he 
 does so, leave a copy thereof (without the schedules, if any, of 
 accounts or documents).^ This coj)y will then be examined and 
 corrected with the answer filed, and be returned, Avhcn so exam- 
 ined, by the Clerks of Kecoi-ds and Writs, with a certificate there- 
 on that it is correct, and proper to be printed.* The certified copy 
 is, generally, ready for the defendant's solicitor the day after the 
 answer is filed; and the Court will not disi)ense with the ])rinting 
 of the answer merely because the parties to the suit are poor, and 
 to save expense.^ 
 
 Tlie defendant must then cause his answer to be printed from 
 such certified copy, on jiaper of the same size and description, and 
 in the same type, style, and manner on and in which bills are re- 
 quired to be printed ; "^ and, before the expiration of four days 
 from the filing of his answer, must leave a printed copy thereof 
 with the Clerks of Records and Writs, with a written certificate 
 thereon by the defendant's solicitor, or by the defendant if defend- 
 ing in person,'' that such print is a true copy of the co])y of the 
 answer so certified by the Clerk of Record and Writs ; and if such 
 printed copy is not so left, the defendant Avill be subject to the 
 same liabilities as if no answer had been filed.^ 
 
 Under the former practice, where an answer taken in a foreign 
 language was filed with a translation annexed, it was only required 
 that an office copy should be taken of the translation.^ It is pre- 
 sumed, therefore, that now, a fair copy of the translation only need 
 be left, and that such translation only need be printed. 
 
 1 Jones V. Jones, 1 Jur. N. S. 863 ; 3 W. 
 R. G38, V. C. S. ; and see Lowe v. Wil- 
 Uains. 12 Beav. 482, 484. 
 
 2 Wright V. Angle, G Hare, 107, 109; 
 Lord SutHeld v. Bond, 10 Beav. 140, 153; 
 Lowe V. Williams, and Jones v. Jones, ubi 
 sup. ; Lloyd V. Solicitors' Life Assurance 
 Company, 3 W. II. 640, V. C. W. ; see, 
 however, Matthews v. Chichester, 5 Hare, 
 207, 209 ; overruled on appeal, 11 Jur. 49, 
 
 8 Ord. 6 March, 1860, r. 2. A copy of a 
 former bill for the same matter may be 
 printed as a schedule. Wright v. Wilkin, 
 U Jur. N. S. 195; 11 W. U. 253, V. C. K. 
 In practice, where the schedule to an an- 
 swer is very short, it is not unfrequently 
 printed with the body of the answer; in 
 such case, the fair copy should of course 
 include the sclicflule. 
 
 4 Ord. Manli, 1860, r. 2. For form of 
 certificate, see Xol. 111. 
 
 5 Meux V. Watkins, 7 N. S. 704; 9 W. 
 R. 779, V. C. W. ; but the answers of par- 
 ties suing or defendant injhrma pauperis, 
 are excluded fi-om the orders as to print- 
 ing; see Ord. 6 March, 1860, r. 15, post, 
 p. 758. 
 
 Ord. G March, 1860, r. 3; as to such 
 paper, see Ord. IX. 3, ante, p. 396; see 
 also, ante, p. 742. 
 
 ' For form of certificate, see ibid. 
 
 8 Ord. 6 March, 1860, r. 3; Bloxam v. 
 Chichester, 11 Jur. N. S. 48; 13 W. R. 
 285, L. JJ.; 34 Beav. 76; S. C. nam. 
 Bloxsome v. Chichester, 2 De G., J. & S. 
 444. An attachment, for not leaving the 
 printed copy, is usually issued in such a 
 case. 
 
 y Braitliwaite's I'r. 491. An ofiicc copy 
 of the whole might, however, be taken, if 
 desired. Ibid.
 
 SWEARING, FILING, AND PRINTING ANSWERS. 757 
 
 A defendant may, however, if he desires it, swear and file a C. xvii. § ;). 
 
 printed, instead of a written, answer ; ^ although this course, in ' y ' 
 
 consequence of the inconveniences attending it, is rarely adopted. Defendant 
 
 On receiving notice of the filing of the answer, the plaintifi" "iilf fiTeT'^ 
 should demand in Avriting, from the defendant's solicitor, or the printed 
 defendant himself if acting in person," an ofticial and certified ^^ ^ 
 
 . ^ t .. Demand by 
 
 printed copy of the answer ; and on receiving such demand, the plaintiff of' 
 defendant must get a printed copy of the answer examined by the ° "^"^ 'J"^'-^' 
 Clerks of Records and Writs with the answer as filed, and stamp copy is 
 such copy with a Chancery stamp for 5s., and the Clerks of Jlec- a"thenti- 
 ords and Writs, on finding that such copy is duly stamped and 
 correct, will certify thereon that the same is a correct copy, and 
 mark the same as an office copy,* on a prcecipe being left.* 
 
 The defendant must have this official and certified printed copy Within what 
 of the answer ready for delivery to the plaintiff*, at any time after *'"^^' 
 the expiration of four days from the filing of the answer, and 
 within forty-eight hours after the receipt of the demand for the 
 same ; ^ and must, on demand, deliver it to the plaintiff": who, on At whose 
 the receipt thereof, is to pay the defendant the amount of the n^shed!*^ "'" 
 stamp thereon, and at the rate of 4(7. jicr folio for the same.® 
 
 The Clerks of Records and Writs are not to certify or mark any No \^Titten 
 printed copy of an answer which has any alteration or interlinea- fntg^^j*,'/,'.!' "^ 
 tion in wiiting.'' Where, however, some very slight typographical tion usually 
 errors had been so corrected, they were directed to certify the pn"ited copy. 
 official copy, and to alter the copy left with them, so as to agree 
 with the written answer on the file.* 
 
 The plaintiff" is entitled to demand and receive from the defend- riaintiff 
 ant any additional numbci' (not exceeding ten) of ])rinted copies of ^"''^1*'^.^° , 
 the answer, on payment for the same at the rate of one halfpenny copies, on 
 per folio ; ^ and after all the defendants who are required to an- P"^'"^*^" ' 
 swer have filed their answers, a co-defendant is entitled to demand defendant is, 
 and receive from any other defendant, any number of printed ^'^cr all have 
 
 . •' 'J I answered, 
 
 copies (not exceeding six) of his answer, on payment after the entitled to six 
 same rate.^" It may be here mentioned, that before the practice of paynient" 
 printing answers was introduced, any defendant might take an 
 office copy of the answer of a co-defendant, as soon as he liad filed 
 his own answer, or, if he had not been required to answer, after 
 the expiration of the time within wliich he might have put in a 
 voluntary answer ; " but it is presumed the former practice is now 
 
 1 Ord. Manli, 1800. r. 5. » hoc v. Dawson, 1 J. & TT. .17. 
 
 2 For form of dcman<l, sec Vol. III. •« Ord. (i March, 18(i(), r. 8; and see At- 
 8 (»rd. (I March, 1S(;0, rr. 4, G. i'or torney-(;eneral r. Ktheridf^c, 1 IW. i:. 927, 
 
 form of certificate, see Vol. HT. V. (J. K. 
 
 * For form of/merlpe, see Vol. III. i" Ord. March, 1800, r. !). 
 
 6 Or.l. (i March, 1800, r. 4. " I'owys r. lilagrave, 18 .Jiir. 402, 404; 
 « /''■ r. 7. 2 Iv|. K<p., 475 V. C. W. ; and see Braith- 
 
 7 Ord. C March, 1800, r. 12. waitc's I'r. 4'Jl.
 
 758 
 
 ANSWERS. 
 
 ('. XVII. « .!. 
 
 OlHoo copies 
 of schedules: 
 how ob- 
 tained. 
 
 Where 
 schedule 
 printed by 
 mistake. 
 
 Uules as to 
 printinfj an- 
 swers, apply 
 to answer of 
 a plaintiff' to 
 interroga- 
 tories. 
 
 Costs of 
 written brief 
 of answer. 
 
 < )rders as to 
 printing an- 
 swers do not 
 apply to 
 paupers. 
 
 abroo-atod, ami that no (loll'iidant can require to be iurnished with 
 oojMos of a co-defendant's answer till all the defendants required 
 to answer have answered, and till the time allowed tlie others to 
 file voluntary answers has exj)ired. 
 
 Office copies of scliedules to answers of accounts or documents 
 continue to be made in the Record and Writ Clerks' Office.* 
 Where, however, by mistake a printed schedule has been attached 
 to a printed answer, the answer was allowed to be filed, and a 
 printed copy of tlie answer, witli a written office copy of the 
 scheilule, to be issued, on the solicitor for the defendant under- 
 takincc not to charge his client with the costs of printing the 
 sclunhile.^ 
 
 Where a plaintiff is required to answer interrogatories,^ he must 
 file his answer thereto, and get it printed, and furnish })rinted. 
 copies thereof, in the same manner as a defendant is required to 
 do with respect to his answer.^ 
 
 No costs will be allowed, either as between party and party, or 
 as between solicitor and client, for any written brief of an answer, 
 unless the Court directs the allowance thereof.® 
 
 The orders of 6th March, 1860, do not apply to answers filed by 
 defendants, or by plaintiffs, defending or suing m forma paujyeris, 
 except the first of them, which directs that an answer is to be 
 written on paper, instead of, as formerly, on parchment.® 
 
 SECTioisr IV. — Exceptions to Answers. 
 
 E.xceptiona If the plaintiff, upon an examination of the answer, finds that 
 
 niay ^ e , . ^^j^^^jj^g scandalous matter, or that it does riot sufficiently 
 
 for scandal or . ' . . •' 
 
 insuflicieucy ; auswcr the interrogatories, he may file exceptions to it.'' Excep- 
 
 1 Ord. 6 March, 1860, r. 10. 
 
 2 Watt V. Watt, 8 Jur. N. S. 878; 10 W. 
 R. 308, V. C. AV. Where, however, the 
 schedule is very short, it is oft(!n printed 
 with the answer. Ante, p. 750, n. 
 
 8 This practice was introduced by 15 & 
 16 Vic. c. 80, § If), and is a sulistitute for 
 a cross-bill of discovery- ; see jKist, Chap. 
 XXXIV. § }, Cross Bills; see /wsd, Evi- 
 dence. Admissions; Genl. Sts. Mass. c. 
 129, §§ 46 et se(j. ; St. Mass. 1862, c. 40. 
 
 4 Ord. 6 March, 1860, r. 11. 
 
 6 Ord. 6 March, 1800, r. 13. As to the 
 fees to which solicitors are to be entitled, 
 in the case of printed answers, see ib. r. 
 14, and sched. ; and Attornev-General v. 
 Etheridge, 11 W. R. 927, V." C. K.; see 
 alaopost, Vol. III. 
 
 8 Ord. 6 March, 1860, r. 15; ante, p. 
 756. 
 
 ' No demurrer lies to an an.swer in 
 Equity. Travers v. Ross, 1 McCarter (N. 
 
 J.), 254, 2.58; Stone v. Moore, 26 111. 165; 
 ante, p. 542, note. Under the practice in 
 New Hampshire, Massachusetts, and some 
 other Stales, an answer is open to excep- 
 tions which omits to notice material charges 
 in the bill, under the general interrogatory, 
 although no special interrogatory is thereto 
 directed. Miles v. Miles, 27 N. II. 440 
 Tucker v. Chesliire R.R. Co., 21 N. II. 29 
 ante, pp. 376, 377, note ; Story Eq. PI. § 38 
 Methodist Epis. Church v. .Jaques, 1 John 
 Ch. 05; Ilagthorpv. Hook, 1 Gill & J. 270 
 Salmon v. ('laggett, 3 Bland, 125; Hank 
 of Utica V. Mes.sereau, 7 I'aige, 517; Park- 
 inson V. Trousdale, 3 Scam. 380; Cnyler v. 
 Bogert, 3 Paige, 180; see Pitts v. Hooper, 
 16 Geo. 442; Jordan v. Jordan, 16 Geo. 
 446. In Maine, " exceptions to an answer 
 should be drawn and signed by counsel 
 and filed with the clerk, and notice thereof 
 given within thirty days after the an.swer 
 is filed." Rule 8, Chancery I'ractice, 3T
 
 EXCEPTIONS TO ANSWERS. 
 
 759 
 
 tions are allegations in writing, stating the particular points or 
 matters with respect to which the plaintiff considers the answer 
 scandalous, or those interrogatories to which he thinks there is 
 not sufficient answer given.^ 
 
 Formerly, exceptions could, in like manner, be taken for im- 
 pertinence; but this practice has been abolished, and there is 
 the same remedy for impertinence in answers as for impertinence 
 in bills, and other proceedings.^ 
 
 The nature of scandal and impertinence in pleadings has been, 
 before, so fully gone into, that it is now only necessary to inform 
 the reader, that the same rules which are there laid down for dis- 
 tinguishing scandal or impertinence, when comprised in a bill, 
 apply to pleadings in general, and consequently to answers.^ 
 The practice of the Court, also, with regard to exce])tions to 
 answers on account of scandal, is the same, mutatis mutandis, as 
 that already described with respect to exceptions to bills on the 
 same grounds.* 
 
 It has before been stated, that a bill may be excepted to for 
 scandal at any time.* In like manner, it seems that there is no 
 precise limit to the time during which an answer may be excepted 
 to for scandal ; ® and therefore, where the defendant became bank- 
 
 C. XYII.§ :i 
 
 but not for 
 impertinence 
 
 Rules as to 
 scandal and 
 impertineiu-e 
 in bills, apply 
 to answers 
 
 Answer may 
 be exci'ptt'd 
 to for scandal, 
 at anj' time. 
 
 Maine, 583; see, for^Massachusetts, Rule 17 
 of < 'liancery I'ractice : and for tlie form of 
 such exceptions, in Langdon v. Goddard, 
 3 Storv, 18, 19; Kittredge v. Claremont 
 Bank, '3 Story, GOo-OOi). 
 
 1 See Woods v. Morrell, 1 John. Ch. 
 103. 
 
 2 15 & 16 Vic. c. 80, § 17; Dufaur v. 
 Sigel, 4 De G., M. & G. 520; see ante, 
 p. .320, n. 
 
 3 Ante pp. 346-.349. 
 * Ante, J)]). 351-353. 
 6 Ante, p. 354. 
 
 8 The introduction of scandalous and 
 impertinent matter into a bill does not 
 authorize nor jiistity similar matter in an 
 answer to meet such inifiropcr allegations 
 in the liill. l'fK>n exce)iticin taken to such 
 answer, the t'ourt will order it to be ex- 
 punged. If the defendant would olijcct to 
 sucli matter in the bill, it slioidd be l)y 
 way of exceplifin. l-augdon r. riikcriiig, 
 19 Maine, 214: I.aiij;doii r. (Jcddanl. 3 
 Story, 13; Hurr r. Miirion, 18 Ark. 215. 
 
 Separate exceptinns to the same answer, 
 one ujr scandal and the other for imperti- 
 nence, will not b(' allowed, as nothing in 
 the pleading can be considiTcfl as scanila- 
 lous, which is not also ini)iertinent. M"ln- 
 tyre i'. Trustees of I'liion College, <i I'aige. 
 240. An exception for imperlinen<-e will 
 be overruled, if the ex|iuriging of the nuit- 
 ter excepted to will leave tin; residue of the 
 clause, which is not covered by tlie excep- 
 tion, either false or whollv unintelli;;ible. 
 M'Intyre I'. Trustees of I'nion f'ollegi-, 
 Paige, 240; see lialcoin v. New York Life 
 
 Ins. & Trust Co., 11 Paige, 454: Norton v. 
 Woods, 5 Paige, 260; Franklin r. Kceler, 
 4 Paige, 382; Tucker ij. Cheshire 11. H. ('o., 
 21 N. II. 36, 37. The Court, in cases of 
 impertinence, ought, before expunging the 
 matter alleged to be impertinent, to be 
 especially clear, that it is such as ought to 
 be struck out of the record, for this reason, 
 that the en'or on one side is irrenu'diable, 
 on the other not. See Davis v. ( 'ri])ps, 2 
 Y. & C. (N. R.) 443; Storv Kq. I'l. ■^267; 
 Tucker v. Cheshire R.R. Co., 21 N. H. 38; 
 Woods V. Morrell, 1 John. Ch. 106. E.x- 
 ceptions for scandal or impertinence must 
 describe the particular passages which are 
 alleged to be scandalous or impertinent. 
 W'liitmarsh v. ('ani))bell, 1 Paige, 645; 
 Franklin v. Kceler, 4 I'aige, 382. An ex- 
 ception for imptTtinence nuist be sup|)orted 
 in tolo, or it will fail altogether, 'lencli v. 
 Cheese, 1 IJeav. 571 ; Story Kq. PI. § 266; 
 see IJalconi v. New York Life Ins. & Trust 
 Co., II I'aige, 454. 
 
 If the matter of an answer is relevant, 
 that is, if it can have any intluence what- 
 ever in the decision of the suit in reference 
 to any point to be considered in it, it is not 
 inq)ertinent. Tui'kiT r. Cheshire li.K. Co., 
 21 N. II. 38. 39; Van liensselacr r. Hruce, 
 4 I'aige, 177; Ilawlcy v. Wolverton, 5 
 I'aige, .522. 
 
 It' a ))laiiil iff wishes to n-fcr an answer 
 for insutbciency as well as for impertinence, 
 he must procure the reference for imt)erti- 
 nence (irst : for it has been flecided, that a 
 reference for imi)erlini'nce can never l)0 
 contempijraneous with exceptions for iu.sul-
 
 7(>() 
 
 ANSWERS. 
 
 c. xvn.5 4. 
 
 Kxocptions 
 lor iiisiilli- 
 
 wliere answer 
 ai-coinpanics 
 :i ploii or 
 <k'inurror to 
 I)art of bill; 
 
 ni]>t alU'i- putting in liis miiswcm-, and tlic ]il:iintiff, before tlio 
 assioiiees were bro\iolit before tlie Court, obtained, under tlie old 
 practice, an order to refer tbe answer for scandal and impertinence, 
 the order was lield to have been regularly obtained,^ 
 
 If a ])]aintiff conceives an answer to interrogatories to be in- 
 sutticicnt, he should take exceptions to it : - stating such parts of 
 the interrogatoiies as he conceives are not answered, and praying 
 that the defendant may, in such respect, put in a full answer.* 
 Itl ]i()\vc\ei-, tlie answer is one which accompanies a plea, or a 
 demurrer, to ]»art of the bill, he must, unless he intends to admit 
 the validity of the plea or demurrer, wait till it has been argued : 
 for his exceptions would operate as an admission of its validity.* 
 This rule, however, will not, as we have seen, apply to cases where 
 the defendant demurs, or pleads to the relief only, and not to the 
 discovery.^ And where a demurrer and answer to interrogatories 
 were put in, and the plaintiff, mistaking the practice, excepted to 
 the answer before he set down the demurrer for argument, he was 
 permitted, 'upon payment of costs, to withdraw his exceptions, 
 without prejudice to his filing them again after the argument of 
 the demurrer.® •> 
 
 ficiencv. Raphael v. Birdwood, 1 Swanst. 
 229; Story Eq. PI. § 87(5; Livingston v. 
 Livingston, 4 Paige, IIL But by the 
 practice, under the former New York Chan- 
 cery System, exceptions for scandal or im- 
 pertinence, and exceptions for insulficiency, 
 were to be taken at the same time and in 
 the same manner. Livingston v. Livings- 
 ton, 4 I'aige, 111; Woods v. Morrell, 1 
 John. ( 'h. 103. After a reference for insuf- 
 ficiency, or any other step taken in the 
 cause, an answer cannot be referred for 
 
 impertinence. I'ellew v. , 6 Ves. 4.58 
 
 ai-f/. ; Beavan v. Waterhouse, 2 Beav. 58 ; 
 but it may be for scandal. Story Eq. PI. 
 § 876. 
 
 1 Booth V. Smith, 5 Sim. 639. 
 
 2 If the answer is evasive, it must bo 
 excepted to ; all defects in the answer must 
 be supplied by taking exceptions. Blais- 
 dell V. Stephens, 1(5 Vt. 179; see Travers v. 
 Ross, 1 iMcCarter (N. J.), 254. The an- 
 swer of a defendant is to be taken as the 
 testimony of any other witness; if not ex- 
 plicit, the defendant must be pressed Ijy 
 exceptions until he is so. Blaisdell v. 
 Stephens, ubi suj/i-a. 
 
 In Massachusetts, when an oath is 
 waived, and in New Hampshire when an 
 oath is not re(|uired, to an answer, no ex- 
 ception can be taken to it for insufticiency. 
 Rule 8 of ("hancery Practice in Massachu- 
 setts; Rule 9 in New Hampshire. 
 
 An answer to which the oatii of the de- 
 fendant is waived cannot lie excepted to 
 for insufficiency; because such answers are 
 not evidence. 1 Barb. Ch. Pr. 177; Bart- 
 lett ». Gale, 4 Paige, 504; Mct.'ormick v. 
 Chamberlin, 11 I'aige, 543; Rules for Chan. 
 
 Pr. in Mass. 8. Exceptions will not lie to 
 the answer of an infant for insuiliciency. 
 Ante, 109, n. As to the answer of a cor^ 
 poration, see Wallace v. Wallace, Ilalst. 
 Dvr. 173. 
 
 ° Where the interrogatories are substan- 
 tially, though not technically, answered, 
 exceptions will not be encouraged. Read 
 V. Woodroofl'e, 24 Beav. 421. Exceptions 
 should not now be taken for want of an- 
 swer to the interrogatory as to books and 
 papers. Law v. London Indisputable Soci- 
 ety, 10 Hare Ap. 20; Barnard v. Hunter, 
 1 Jur. N. S. 1005, V. C. S. ; Kidger v. 
 Worswick, 5 .lur. N. S. 37, V. C. W. ; see 
 however, Huflson v. Grenfell, 3 Giff. 388; 
 8 Jur. N. S. 878. An exception to an an- 
 swer for insuiliciency should state the 
 charges in the bill, the interrogatory ap- 
 plicable thereto, to which the answer is 
 responsive, and the terms of the answer, 
 verlmtiin, so tliat the Court may see, wheth- 
 er it is sufficient or not. Brooks v. Bj'am, 
 1 Stor\', 2;)0. Exceptions to answers for 
 insufHciency can only be sustained where 
 some material allegation, charge, or inter- 
 rogatory in the bill is not fully answered. 
 ■Wniere the matter of the bill is fully an- 
 swered, and the defendant sets uji new 
 matter which is irrelevant, and forms no 
 sufficient grounds of defence, t)ie jilaintitf 
 ma}' except to the answer for iu)))ertinence, 
 but he cannot except to it for insufficiencj-. 
 Stafford V. Brown, 4 Paige, 88. For form 
 of exceptions, see Vol. HI. 
 
 * Ante, pp. 589,091. 
 
 6 Ante, pp. ,590, G91. 
 
 6 Bovd V. Mills, 13 Ves. 85; Story Eq. 
 PI. § 806.
 
 EXCEPTIONS TO ANSWERS. 761 
 
 If a plea or demiiiTer to the whole bill is overruled, the defend- C. XVII. § 4. 
 
 ant must, if interrogatories have been filed, answer, without the ' r ^ 
 
 plaintiff's being driven to except ; but, where a partial plea or ^ii'''"'^ P^^a or 
 
 demurrer is overruled, the plaintiff must except: because an overruled; 
 
 answer being on the file, the defendant is not bound to answer 
 
 further till exceptions have been taken .^ Where the plaintiff had 
 
 not excepted, and the defendant put in a further answer, leave 
 
 was given to the plaintiff to file exceptions thereto, although he 
 
 had filed none to the original answer.- 
 
 A plaintiff may also, where a partial demurrer is allowed, ex- after partial 
 cept to the answer to such of the interrogatories as are not covered aiio*"'d'^-^ 
 by the demurrer ; he must not, however^ except to those which 
 are covered by the demurrer. 
 
 In the case also of a plea, which is accompanied by an answer or plea. 
 to the interrogatories, the plaintiff may, upon the allowance of 
 the plea, except to the answer, as he may if a partial plea is 
 overruled ; and the rule that a plaintiff must except to the an- 
 swer as insufficient, ap])lies even where the plea or demurrer is 
 accompanied by an answer as to a single fact.^ "Where a ])lea is 
 ordered to stand for an answer, with liberty to except, the plain- 
 tiff may file exceptions to the answer, or to that j)ai't of it to Avhich 
 he is, by the order, permitted to except, but where the plea is 
 ordered to stand for an answer without liberty to except, expressly 
 given by the order, the plaintiff cannot except.* 
 
 A plaintiff cannot except to an answer to an amended bill, on Answer to 
 the ground that the defendant has not answered matters inquired cannot be 
 after in the interrogatories to the original bill.'^ In Glassinqt07i fx^epted to 
 
 ... ^ m respect of 
 
 V. Thwaite.%^ this rule appears to have been departed from ; but m.vtters con- 
 the circumstances of that case were peculiar, and the Court made ori!r^,'mi"ijnh 
 a special order, that the Master, in considering the exceptions 
 taken by the ]»laintiff to "the thing" called an answer and dis- 
 claimer to the amended bill, should be at liberty to allow excep- 
 tions as to matters, not answered to, contained in the amended bill, 
 notwithstanding the same matters were stated in the original 
 bill, and no exceptions were taken to the answer to the original 
 bill. Where, after a defendant had answered, the ])]aintiff amend- unless new 
 ed his bill, by stating an entirely new case, it was held, that a^,^^,Xu!;ut!^ 
 exceptions would lie, although some of the interrogatories em- 
 braced in llicin were ('(julaiiied in the original bill.'' ' 
 
 1 Ante, pp. r,()(|, 0!)1; see Kuypers v. AVicli v. Parker, 22 lieav. 59; 2 .Tur. N. 
 Ref. Dutch iliiircli. lui), r,1\. S. .•)«2; Denis v. Kocluisscn, 4 Jur. N. S. 
 
 2 Alfornev (ieneral v. Corporation of 2t)8, V. C. W. 
 London, 12 "Hcav. 217, 219. o 2 Rush. 4.58, 404. 
 
 8 Cotes I'. Turner, liunb. 12.3; Storj' ' Mazarredo v. Maillahd, 3 Mad. 66, 
 
 I->i. I'l. § aOG. 72; rartridf,'e i?.. IIaycra(l(. 11 Ves. 570, 
 
 * Anif, p. 700. 5M ; see also, Kav<^ v. Wall, 4 Hare, 128; 
 
 6 Ovcry V. Lcighton, 2 S. & S. 2.'54; Duncombe v. Davis, lllare, 184, l'J3.
 
 7G2 
 
 ANSWERS. 
 
 c. XVII. U. 
 
 Wlioro iK'- 
 I'ondant, by 
 his answor to 
 amoiulod l)ill, 
 iviulers his 
 t'ornuT 
 aiiswiT 
 insutlicieut. 
 
 Amendment 
 of bill, a 
 waiver of 
 exceptions ; 
 
 Secus, where 
 the amend- 
 ment fonnal, 
 and requires 
 no answer. 
 
 Exceptions 
 • not waived, 
 by moving 
 upon ad- 
 missions in 
 the answer. 
 
 Ami so, -wlioro tlie interrogatories to tlio original bill required 
 the defendants to state certain particulars as to some goods 
 alleged to have been purchased by the defendants (such as, the 
 persons from -whom, and by whom, and at what ])rice, and in 
 whose jn-esence they were purchased), and the defendants put in 
 an answer in the terms of the interrogatories, wliereu])on the 
 plaintiff amended the bill, and the defendants availed themselves 
 of the o])]H>rtunity afforded by their being called upon to answer 
 the amended bill, to state that, since putting in their answer to 
 the original bill, they recollected that a parcel of the goods in- 
 quired after had been purchased of an individual not named in 
 the former answer, but without stating from whom, or at what 
 price, or in whose presence, the same had been purchased, and 
 the plaintiff excepted to the answer for insufficiency, in not setting 
 out those circumstances : the Court of Exchequer was of opinion, 
 that the plaintiff ought not to be precluded, by the general rule 
 above stated, from an opportunity of obtaining a sufficient answer 
 as to the point excepted to : but held that, before delivering his 
 exceptions, the plaintiff ought to have made a special application 
 to the Court for leave to do so.'^ 
 
 The reason of the rule that a plaintiff,^if he does not except to 
 the answer to the original bill, cannot afterwards except to the 
 answer to an amended bill, on the ground that the defendant has 
 not answered matters which were contained in the original bill, 
 is, that, by amending his bill, the plaintiff has admitted the 
 answer to it to be sufficient. Upon the same ground it has been 
 held, that where a plaintiff, after excepting to an answer, amends 
 his bill without Avaiting for the decision upon the exceptions, he 
 must be considered as having waived his exceptions,^ The 
 principle, however, will not be applied to cases in which the amend- 
 ment of the bill extends only to the addition of another party, 
 requiring no answer from the other defendants : ^ and where 
 a plaintiff, after answer to the original bill, changed his name, 
 and then amended his bill by substituting his new name for his 
 old one, and adding another defendant, and afterAvards took ex- 
 ceptions to the answer, a motion to take the excejjtions off the file 
 was refused.* 
 
 Some doubt was formerly entertained, whether a plaintiff did 
 not, by moving, upon admissions in an answer, either for payment 
 of money into Court, or for the production of papers, waive his 
 exceptions, if already taken, or his right to except, if he had not 
 already excepted ; and, in consequence of this doubt, a practice 
 prevailed of making such motions, "without prejudice." In the 
 
 1 Irvine v. Viana, M'Cle. & Y. 563. 
 
 2 De la Torre v. Bernales, 4 Mad. 396. 
 
 8 Taylor v. Wrench, 9 Ves. 315. 
 4 Miller v. Wheatley, 1 Sim. 296.
 
 EXCEPTIONS TO ANSWERS. 
 
 7 03 
 
 case of Lane v. Paul^ however, Lord Langdale M. R. decided 
 that the plaintiif's right to except for insufficiency, was not waived 
 by his moA'ing for the production of documents, and that it was 
 not material that the notice of motion should be made exjiressly 
 witliout prejudice to the right to except. 
 
 Exceptions to an answer for insufficiency must be in writing,^ 
 and must be signed by counsel ; ^ and if they do not appear to 
 hfive been so signed, they may be ordered, on motion, with notice 
 to the plaintiff, to be taken off tlie file : even though the defendant 
 has taken a copy of them, and the plaintiff has set them down for 
 hearing.* They must also specify, that the answer complained 
 of was an answer to the bill.^ They are intituled in the cause, 
 and care must be taken that they are properly described in the 
 heading : otherwise, they may be suppressed or taken off the file 
 for irregularity. Thus, where, exceptions having been allowed to 
 an answer, the plaintiff obtained the usual order, that he might 
 be at liberty to amend his bill, and that the defendant might 
 answer the amendments and exceptions at the same time, and 
 amended his bill, Avhereupon the defendant put in a second answer, 
 upon which the plaintiff took exceptions to the second answer, 
 and described them as exceptions to the further answer to the 
 original bill, and to the answer to the amended bill, the exceptions 
 were held to be irregularly described, and were ordei'ed to be 
 taken off the file : because new exceptions cannot be taken to a 
 further answer to an original bill.® The present practice, however, 
 in such a case, appears to be, to allow the plaintiff to amend on 
 payment of costs.'' 
 
 Formerly, exceptions for insufficiency appear to have set forth 
 tlie tenor or scope of the bill, and the substance of the answer, 
 and then to have proceeded to point out particularly in what re- 
 spect the answer was considcreil defective ;^ but, according to the 
 modern practice, the tenor of the bill and substance of the answer 
 are omitted, and the plaintiff proceeds at once to point out, specifi- 
 cally, the interrogatories or parts of the inteirogatories which are 
 unanswered, by separate excej)tions, a])])licable to each part.° Thus, 
 
 C. XVII. § 4. 
 
 Form of 
 exceptions. 
 
 Signature of 
 counsel. 
 
 Exceptions 
 must state 
 answer was 
 to the bill. 
 
 Heading. 
 
 Body. 
 
 I 3 Beav. 00, GO. 
 
 a Hcamos, 78, 181; Woods v. Morrcll, 1 
 John. V\\. 103. 
 
 3 Ord. XV[. 1. Exceptions for insiifli- 
 ciency, an wfll as thf)Sf; for iiii|jiTtiM<'nco, 
 must have the siffnutiirc of roiniscj, Ihoii/^h 
 there is no positivt-. order rccjuiririf; it. 
 Yates V. llardv. .lac. 223: Storv K(|. TM. 
 § 864; Mitfordl>|. I'l. hy .Icroniy, 313. 
 
 * YatPH r. J lardy, .lac. 223. For form 
 of notice of motion, see Vol. III. 
 
 8 Earl of Lichlii'lil v. Bond, 5 Bcav. 
 513, ."iU; .liir. 1070. For form of excep- 
 tions, see Vol. III. 
 
 Williams V. Davios, 1 S. & S. 426; 
 and !we jmii, pp. 769, 770. 
 
 " Earl of Lichfield v. liond, .''i T?eav. 
 .'i13; C.lur. 1070; Hradstock v. Wliatley, 
 lleav. 01. . 
 
 « See 2 Prax. Aim. 508 tt seq.; Curs, 
 fane. 137 et sci/. 
 
 '■> On exceptions for insufRciency, fho 
 partii-ular points or matters in the hill 
 which remain unanswered, or which are 
 imperfectly answered, should he slated in 
 the exceptions. Stafl'ovd v. Brown, 4 
 Paige, 88; Milfonl i:i|. I'l. hv .leremy, 
 315; Cooper Eq. PI. 31U; Lube Eq. PI. 87;
 
 7lU 
 
 ANSWERS. 
 
 C.XVII. 6 4. 
 
 May be 
 partially 
 allowoii. 
 
 In what 
 oases excep- 
 tions may be 
 ameuded. 
 
 Separate 
 exceptions 
 required to 
 separate 
 answers. 
 
 How en- 
 grossed, and 
 signed by 
 counsel. 
 
 wlioro sovcnil questions two ('()mi)risc(l in one numbered interrog- 
 atory, tlie unanswered questions only should be included in the 
 exceptions ; ^ and where a ]>laintiiF complains that a ])articular in- 
 terrogatory to his bill lias not been answered, he must state the 
 interrogatory in its terms, and not throw upon the Court the 
 trouble of determining whether the expressions of the exceptions 
 are to be reconciled with tlie interrogatory.^ It is not, however, 
 necessary that the exception should follow the very Avords of the 
 interrogatory,'' provided that it j)lainly points out the interrogatory 
 to which it refers,'* and does not vary therefrom in any important 
 particular.^ 
 
 An exception for insufficiency may be allowed as to part, and 
 overruled as to part.° 
 
 Care must be taken, in drawing exceptions, that no mistakes 
 happen therein : for, after they have been delivered, no new excep- 
 tion can regularly be added.'' Cases, however, have occurred, 
 where the amendment of exceptions has been permitted on the 
 ground of mistake ; ® as where the plaintiff's solicitor, for the ])ur- 
 pose of instructing his counsel in drawing the exceptions, sent him, 
 by mistake, the original draft of the bill, instead of another draft 
 from which the bill was engrossed, which differed materially, and 
 the mistake was not discovered till it was too late to rectify it.^ 
 In Northcote v. Northcote^^ it is stated, that liberty was given to 
 amend exceptions after arguing them ; it does not, however, appear 
 upon what ground such liberty was given. 
 
 In the case of several defendants answering separately, exceptions 
 must be taken to each answer ; " and if a defendant, who has an- 
 swered jointly with another defendant, dies, exce])tions may be 
 taken to the answer, as being that of the survivor only.-^^ 
 
 The exceptions, after they have been drawn or perused, and 
 signed by counsel, must be written on paper of the same descrip- 
 
 see Dexter v. Arnold, 2 Sumner, 108. 
 Material and necessary matter nuist be 
 explicitly met in an answer; but excep- 
 tions, founded on verbal criticisms, slight 
 defects, and omissions of immaterial mat- 
 ter, will l)e invariably disallowed, and 
 treated as vexatious. Baggott n. Henrv, 
 1 Edw. Ch. 7. See form in Vol. III. 
 
 1 Jliggliison V. Blockley, 1 Jnr. N. S. 
 110-1, V. C. K.; see, however, Ilambrook 
 V. Smith, 17 Sim. 209, 212, 10 Jur. 144; 
 Hoffman v. Tostill, L. R. 4 Gh. Ap. 673, 
 681. 
 
 2 Hodgson V. Butterfield, 2 S. & S. 2.30. 
 8 Brown v. Keating, 2 Beav. 581, 583; 
 
 4 Jur. 477. 
 
 4 Woodroffe v. Daniel, 10 Sim. 243. 
 
 6 Duke of Brunswick «. Duke of (Jam- 
 bridtre, 12 Beav. 279, 280 ; Esdaile v. Mo]y- 
 neaux, 1 De G. & S. 218 ; Brown ». 
 Keating, vbi sup. 
 
 ® Per Lord Ilardwicke, in East India 
 Company v. ('anipbel, 1 Ves. S. 247. An 
 exception bnd in part is not necessarily to 
 be overruled. Hotfmiin v. Postill, L. K. 4 
 (Jli. Ap. 673 ; see Van HensselHer v. Brice, 
 4 I'aige, 174; Tucker v. The Oheshire K. 
 U. Co., 21 N. H. 37; Mclntvre v. Union 
 College, 6 Paige, 240; Iligginson v. Block- 
 ley, 1 Jur. N. S. 1104. 
 
 7 Partridge v. Haycrafr, 11 Ves. 575. 
 
 8 Dolder v. Bank of England, 10 Ves. 
 
 284. The application may be made by 
 summons, which must be served on the 
 solicitors of all the defendants attected by 
 the exceptions. For form of summons, see 
 Vol. III. 
 
 9 Bancroft v. Wentworth, cited 10 Ves. 
 
 285, n. 
 
 10 1 Dick. 22. 
 
 11 Sydolph V. Monkston, 2 Dick. 609. 
 
 12 Lord Herbert v. Pusey, 1 Dick. 255.
 
 EXCEPTIONS TO ANSWERS. 
 
 7(;,') 
 
 tion and size as that on which bills are printed.^ The signature of 
 counsel is affixed to the draft, and copied on to the engrossment.^ 
 The exceptions must be indorsed with the name and place of busi- 
 ness of the plaintiff's solicitor,^ or with the name and residence of 
 the plaintiff himself, if suing in person,* and with the address for 
 service, if any, as in the case of other proceedings to be filed at 
 the Record and Writ Clerks' Office.^ Formerly, the exceptions 
 were only delivered to«the clerk in Court of the opposite party, 
 and were not of record; but noAV, they must be filed at the Record 
 and Writ Clerks' Office, and notice of the filing thereof must, on 
 the same day, be given by the plaintiff" or his solicitor to the de- 
 fendant's solicitor, or to the defendant himself, where he acts in 
 person.® If the plaintiff does not give due notice, the exceptions 
 will not be thereby rendered invalid, but further time- will be given 
 for the next step, on the application of either party, on ])ayment 
 of costs by the plaintiff.'' 
 
 The defendant whose answer is excepted to, should take an office 
 copy of the exceptions.* 
 
 After the filing of a defendant's answer, the j^laintiff has six 
 weeks within which he may file exceptions thereto for insufficiency;® 
 and if he does not file them within six weeks, such answer on the 
 expiration of the six weeks, will be deemed sufficient.^° Where the 
 plaintiff' desires to excej)t to an answer filed to an amended bill, to 
 which the plaintiff" has not required an answer, he must obtain a 
 special order for that purpose within fourteen days aft.er the answer 
 is filed." 
 
 By the original })ractice of the Court the plaintiff might obtain. 
 
 C. XVII. 5 4. 
 
 ^lust be in- 
 dorsed with 
 name, &<•., of 
 person filing; 
 
 and be filed 
 at Record and 
 Writ Clerks' 
 Offiee, and 
 notice of 
 tiling given. 
 
 Consequences 
 of not giving 
 due notice. 
 
 Copy of ex- 
 ceptions. 
 
 Time allowed 
 for excepting. 
 
 1 Ord. 6 Marcli, 1860, r. 16. As to such 
 paper, see Onl. IX. 3, ante, p. 396. 
 ■■2 Ante, p. .iVi. 
 3 Ord. III. 2. 
 < Ord. III. 5. 
 
 6 Ante, pp 453, ATA. 
 
 *> Ord XV'I. 3. The notice must be 
 served before seven o'clock in the evening, 
 exceptor) Saturday, when it uui>t be served 
 before two o'clock in the afternoon, or 
 the 8ervi(;e will be deemed to liiive been 
 made on the following day, or Monday, as 
 the case may be. (Jrd. X.\.\V'JI. 2; ante, 
 p. 455. For form of notice, see Vol. III. 
 
 7 Bradstock v. Whalley, 6 IJeav. «1, 02; 
 see also Lowe i'. Williams, 12 Ik-av. 4«2, 
 484. 
 
 « Ord. XXX VI. 1 
 
 « By the 61-t Kquity Kulcofthe United 
 States (JourtH, it is provided, that "alter 
 an answer is liied on any riil<! iiay, the 
 plaintiff shall l^e allowed until the next 
 succeeding rule day to fib; in the clerk's 
 office exceptions thereto (or iiKsufKciency, 
 and no longer, unless a lonr^er tune shall 
 be allowed fir the purpose, upon cause 
 shown, to the (,'ourt or a .Juilge thereof; 
 and if no exception shall be tiled thereto 
 
 within tliat period, the answer shall be 
 deemed and taken to be suflicient." See 
 the ITtli of the Rules for the Regulation 
 of Practice in (Jhancer^' in Massachusetts, 
 by which it is provided, that " the plaintiff 
 sIimII re])ly, or lile exceptions, or set 
 d iwn, the cause lor hearing on the bill 
 and answer, within one month after the 
 answer is required to be tiled; or if the 
 answer be lileiJ before it is required, then 
 within one month after written notice of 
 such tiling; and if he fail so to do, a de- 
 cree may be entered for the tlisinissal of 
 the bill, with costs." See for New Mamp- 
 slure^38 N. II. 6oy, Rule 20; for iMaine, 
 37 Maine, M'-i, Rule 8. 
 
 »» Ord. \X.\1II. 12(3). In New Hamp- 
 shire, exce|)tions will be deemed waived, 
 unless allowe<l and delivered to the de- 
 fend. int's solicitor within one month from 
 the delivirry of the answer, or unless fur- 
 ther time be allowed by the ju^ilice. Hulo 
 '20 of (Jhiincery Practice, 33 N. II. 0'.'!*. 
 
 n Ord. XVI. 6. The time runs strictly 
 from the filing of the answer, and not from 
 the acceptance of co-ts of a cnnlempt. 
 Nicklin v I'attcn, 4 Hiav. 120; .'i.lur. ri47 ; 
 Coyle V. Alleyne, 10 iieav. 618; but the 
 
 Leave to file 
 after time 
 expired.
 
 '66 
 
 ANSWERS. 
 
 r. XVII. 5 4. 
 
 rurthcr time 
 to tile. 
 
 Time to file, 
 where plea or 
 deraiirrer 
 overruled, 
 
 or plea or- 
 dered to stand 
 for answer. 
 
 Vacations not 
 reckoned. 
 
 Xo excep- 
 tions for 
 insufficiency 
 after replica- 
 tion. 
 
 '')n filing 
 replication, or 
 sen-ice of 
 notice of 
 motion for 
 ili.'cree, an- 
 swer deemed 
 sufficient. 
 
 Submission to 
 exceptions: 
 
 Time allowed 
 to submit; 
 
 as of course, nn order to deliver e.\'ce|)tions 7ninc pro tunc ^ but 
 tills is now expressly prohibited ; ^ and such an order will not now 
 be made even by consent. If necessary, however, a special order 
 will be made, that the i)laintifi"may be at liberty to file exceptions, 
 notwithstanding the time for filing them has expired.*^ The appli- 
 cation for such order may be made by notice of motion, or by sum- 
 mons;® and the notice or summons should be served on the 
 solicitors of those defendants only to whose answers the excep- 
 tions are to be filed. By consent, such an order may also be 
 made, on petition, as of course, at the llolls.^ Further time to file 
 exceptions may also be applied for by summons at Chambers,^ 
 which must be served on the solicitors of the defendants to whose 
 answers exceptions are in contemplation. 
 
 If a plea and answer, or demurrer and answer, have been filed, 
 and the plea or demurrer is overruled, the time for excejiting to 
 the answer for insufficiency is six weeks, reckoned from the day on 
 which the plea or demurrer is overruled.^ 
 
 If a plea is ordered to stand for an answer, with liberty to ex- 
 cept, and no time is fixed within whiph the exceptions ar« to be 
 filed, the six weeks for filing the exceptions will be reckoned from 
 the date of the order directing the plea to stand for an answer.'' 
 
 The times of vacation are not reckoned in the computation of 
 the time allowed for tiling exceptions for insufficiency.^ No excep- 
 tions can be taken to an answer for insufficiency, after replica- 
 tion ; ® in some cases, however, the Court has, on special application, 
 permitted the replication to be withdrawn, and exceptions to be 
 then filed.^'' If the jjlaintiff files re2)lication, or serves notice of 
 motion for a decree, he is considered to have admitted the answer 
 to be sufficient, and cannot compel a further answer, even though 
 the first has been found insufficient." 
 
 The defendant may, if he think it advisable, submit to the ex- 
 ceptions ; and where he does so without an order of the Court, 
 the answer will be deemed insufficient from the date of the sub- 
 mission.^-' If he desires to prevent the exceptions being set down 
 for hearing, he must submit to them within eight days after the 
 filing thereof.^® The submission is made by notice to the plaintiff's 
 
 times of vacation are excluded. Ord. 
 XXXVII. 13 (2). 
 
 1 Urd. XVl. 5. 
 
 2 IJiddulpli V. Lord Camoys, 9 IJeav. 155. 
 
 3 For fi-rrns of notice of motioii and sum- 
 mons, see Vol. III. 
 
 ■* For form of petition, see Vol. III. 
 
 fi Ord XXXVII. 17;andsee Nicklin v. 
 Patten, ubi sup. For form of summons, 
 see Vol. III. 
 
 6 Esdaiie v. Molj'neux, 2 Coll. 614 ; 11 
 Jur. 201. 
 
 ' Ante, p. 701. Every special order for 
 eave to except should specily the time 
 
 within which the exceptions are to be 
 filed. 
 
 8 Ord. XXXVII. 13 (2); but see, in 
 ca<es of election, Ord. XLII. 
 
 9 Ord. XVI. 7. 
 
 10 Wyatt's 1'. R. 202. 
 
 " Uovse V. (.'okell, 18 Jur. 770, V. C. W. 
 
 12 Old. XVI. 18. 
 
 13 Jbid. It is presumed that, in a proper 
 case, further time to submit may be ob- 
 tained on summons, to be served on the 
 plaintiff's solicitor; see Ord. XXXVII. 17; 
 and see Mayer v. Frith, 1859, M. 164. For 
 form of summons, see Vol. III.
 
 EXCEPTIONS TO ANSWERS. 
 
 767 
 
 solicitor, and payment of 20s. costs ; ^ and where a defendant, not 
 being in contempt, submits before the exceptions are set down for 
 hearing, he has fomteen days from the date of the submission 
 within which to put in his further answer;^ but he may apply for 
 further time, by summons at Chambers,^ which must be served on 
 the plaintifi"'s solicitor, but not on the solicitor of any co-defendant. 
 If the defendant does not answer within the fourteen days, or ob- 
 tain further time, and answer within such further time, the plain- 
 tiff may sue out process of contempt against him.* 
 
 Where two or more defendants put in a joint and several an- 
 swer, which is excepted to for insufficiency, and one or more of 
 them submit to the exceptions, the others may have them argued.^ 
 
 If the defendant dpes not submit to the exceptions, the plaintiff 
 may set them down for hearing.® The exceptions are not, how- 
 ever, to be set down before the expii-ation of eight days from the 
 fiUng thereof, unless, in a case of election, the defendant has, by 
 notice in writing required the plaintiff to set them down A\dthiu 
 four days from tlie service of the notice.'' The exceptions must be 
 set down within fourteen days from the iiling thereof; otherwise, 
 the answer, on the exj^iration of such fourteen days, will be deemed 
 sufficient.^ 
 
 The Court will, however, on a special case being made, allow 
 exceptions to be set down for hearing after the ex])iration of the 
 fourteen days;' and, in injunction cases, if the insufficiency of the 
 answer is shown as a cause against dissolving the injunction, the 
 Court will direct the exceptions to be set down and argued in- 
 ■ atanter}^ Any objection, on the ground that the exceptions were 
 not set down in proper time, should be taken when they come on 
 for hearing. 
 
 C. XYii. § 4. 
 
 Process, on 
 default of 
 answer. 
 
 Where one 
 of several 
 defendants 
 submits. 
 
 "Wliere de- 
 fendant does 
 not submit, 
 exceptions to 
 be set down 
 for hearing. 
 
 Time 
 allowed. 
 
 Enlarp,inf^ or 
 abridfjing 
 time tor set- 
 ting down. 
 
 1 Bniithwaite's Pr. 129; Ord. XL. 13. 
 For form ol suljiniit^^ion, see Vol. III. 
 
 2 Ord. XVI. 9. liy the 63d Equity 
 Rule of the United States Couits, '"where 
 exceptions shali be (iled to the answer for 
 iiisulficiency, within the period proscribed 
 by these ruh-s, if the defendant shall not 
 submit to the same, and file an mneii'ied 
 answer on the next succeeding rule day, 
 the plaintiff shall lorthwith set them down 
 for It hearing on the next succeeding rule 
 day tlierealter, hefore a .Judge of the 
 Court; an<l shall enter, as of course, in the 
 order b'<ok nn order lor that purpose; and 
 if he shrill ni.t set down the same for ii 
 hearing, the cxce[)tions shall be deemed 
 abandoned and the answer shall be deemed 
 sufticient. ' 
 
 3 Onl. XVI. 15; Ord. X.XXVII. 17, 18. 
 For form ol summons, see Vol. III. 
 
 * (»ri|. X\I. \'). in New Ilamp-hire. 
 " if the delendMUt, on notice of cxiepiiona 
 to his answer, shall deliver to the plainliU's 
 Bolicjtor, uetorc the day appointed for the 
 
 hearing thereon, a sufficient answer, the 
 same shall be received without costs. If 
 the excejitioiis are sustained, the defendant 
 shall deliver to the i)laintifrs solicitor a 
 full and complete answer thereto within 
 one montii, and pay such costs as the jus- 
 tice allowing such exceijtions shall order; 
 or tiie bill slia 1 be taken pro con/esso ; but 
 if the plaintiff so elects, he may move tor 
 process of contempt to Cf)mpcl an answer." 
 liule ^1 oi Chancery Practice, 38 N. H. 
 
 coy. 
 c Ilinde, 2G8; Wvatt's Pr. 204. 
 13 & 14 Vic. c."3.5, § 27. 
 
 7 Onl. XVI. 11; XLII. 6. 
 
 8 (Jrd. .\V1. 12; but see ante, p. 766, n. 
 (13); see 61st ICquily Uule of fh(! United 
 States (Jourts, and the 17tli of tin- Itulesof 
 I'ractice in Chancery in Massachusetts; 
 ayilr^ 70.0, note. 
 
 » See Tuck v. Kayment, U Ih-av. 38; 
 Old. XXX VII. 17. 
 •0 Hughes V. 'I homas, 7 Iteav. 684.
 
 ■()8 
 
 ANSWERS. 
 
 r. XVII. s 4. 
 
 Exceptions : 
 how set 
 dowu. 
 
 Notice of 
 setting dovm 
 
 Papers for use 
 of Court. 
 
 Hearing ot 
 exceptions : 
 
 where de- 
 fendant does 
 not appear; 
 
 where plain- 
 tiff does not 
 appear; 
 
 where neither 
 party ap- 
 pears; 
 
 where both 
 parties ap- 
 pear. 
 
 Tlio times of vaoatioii arc iu)t rcfkoned in the c()ni])Ut:iti()n of 
 tlio (iiiu's ai)]H)intO(l for setting down exceptions for insufficiency, 
 except where tlie time has been hmited, in a case of election, in 
 consequence of the defendant having by notice in writing, required 
 the j)hiintilf to set doAvn tlie exce2»tions witliin four days from tlie 
 service of tlie notice.^ 
 
 Excej)tions to answers for insufficiency are set down to be heard 
 before the Judge to whose Court the cause is attached,^ on produc- 
 tion to the liegistrars' clerk, at the order of course seat, by the plain- 
 titi' of a certiticate of the Clerk of Records and Writs of the filins; 
 of such exceptions, or of the filing of a further answer. The 
 plaintiff's solicitor must indorse the certificate, with a request that 
 the exceptions be set down, which will be done on the same day 
 that the certiticate and request are protluced to the liegistrars' 
 clerk.^ The exceptions will then be advanccc^, and }>ut in the 
 paper for hearing on an early day; and the plaintiff's solicitor 
 must, on the same day on which the exceptions are set down, serve 
 notice thereof on the defendant : otherwise, the exceptions will be 
 deemed not set down.* 
 
 Before the exceptions come on to be heard, the solicitor for the 
 plaiutiti' should leave with the Usher, for the use of the Court, two 
 printed copies of the bill and answer, and a coj^y of the excep- 
 tions, and of the interrogatories to the answers to which the 
 exceptions are taken.^ 
 
 If the defendant does not appear at the hearing, the exceptions 
 Avill be heard ex parte, on production by the ijlaintiff' of an office 
 copy of an affidavit of service on the defendant of the notice of 
 setting down the exceptions.^ If the plaintiff does not ap})ear, the 
 exceptions will be overruled, as of course, with costs, on produc- 
 tion by the defendant of an office copy of an affidavit of having 
 been served with the notice of setting down the excej^tions.'^ If 
 neither side appear, the exceptions will be struck out of the paper. 
 
 Where both sides appear, the plaintiff's counsel is first heard in 
 
 1 Ord. XXX VII. 13 (2); XLII. G. 
 
 - Urd. VI. 4. Exceptions to a defend- 
 ant's answer in South Carolina may be 
 heard and determined by the Court witliout 
 the interseiilioii of a Master. Satterwhite 
 V. Daveiijjort, 10 Iticli. Kq. (S. C.) 305. In 
 New Hamp>hire, exceptions to an answer 
 may be allowed by a justice, a copy there- 
 of and a notice oi the time and place at 
 which the same will be heard belore such 
 justice, being seasonably given to the de- 
 lendant's soUcitor. llule 20 of Chancery 
 
 3 Ord. XVI. 10; Reg. Regul. 15 March, 
 1860, rr. 1, 6. !■ or torm of request, see 
 Vol. III. 
 
 < Ord. XVI. 10. For form of notice, see 
 Vol. III. 
 
 6 See Davis v. Earl of Dysart, 4 W. K. 
 41, M. K.; and OrU. XXI. 12. Each coun- 
 sel should befuiiiished with printed copies 
 of the bill and answer, and brief copies of 
 the exceptions and interrogatories above 
 mentioned. 
 
 6 For torin of affidavit, see Vol. III. 
 
 ■^ For form ot order, see Seton, 1257, No. 
 9; and for lorm of affidavit, see Vol. 111. 
 In Latouche v. Sampson, cited Seton, 1257, 
 it was, however, held that the exceptions 
 being in the paper, and the defendant 
 present, was Sufficient proof of the notice 
 having been served; so that the affidavit 
 of service seems to be unnecessary where 
 the plaintitl' is the defaulter.
 
 EXCEPTIONS TO ANSWERS. 
 
 769 
 
 support of the exceptions ; then the counsel for the defendant ; 
 and the ph\intiff's counsel is entitled to a reply. The Court will 
 then dispose of the exceptions, by overruling or allowing them, in 
 whole or in part.^ 
 
 No exceptions will be allowed to stand over for an indefinite 
 period ; - and in deciding on the sufficiency or insufficiency of any 
 answer, the relevancy or materiality of tlie statement or question 
 referred to is to be taken into consideration.^ Either party has 
 a right to the judgment of the Court upon each of the excep- 
 tions.* 
 
 If, upon the hearing of the exceptions, the answer is lield suffi- 
 cient, it will be deemed to be so from the date of the order made 
 on the hearing.* 
 
 If the first or second answer is held to be insufficient, or the de- 
 fendant (not being in contempt) submits to answer the exceptions 
 after they are set down for liearing, the Court may appoint a time 
 within which the defendant must put in his further answer ; ® and 
 if the defendant does not answer within the time so appointed, or 
 obtain further time,'' and answer within such further time, the 
 plaintiff may sue out process of contempt against him.^ A defend- 
 ant, however, Avho is in contempt for want of a further answer, 
 cannot procure an enlargement of the time for putting in his fur- 
 ther answer," unless the plaintiff waives his right to object to the 
 ap})]ication on tliat ground. 
 
 If, after the exceijtions have been allowed or submitted to, tlie 
 plaintiff desires to amend his bill, he may, on petition at the 
 Kolls,^^ obtain an order, as of course, that he may be at liberty 
 to amend liis bill, and that the defendant may answer the amend- 
 ments and excej)tions at the same time." The defendant must then, 
 as we have before seen,^- put in his further answer, and his answer 
 
 1 For form of order, see Seton, 1256, 
 Ko. 8. 
 
 2 Or.l. XXI. 13. 
 
 3 Ord. XVI. 4; see on?e, pp. 717-71!t, ns 
 to (il),ci;tions on the ground of want of 
 matiTi il tv. 
 
 * liowe' o. Gu'lcfpon, 1 V. & B. 331 ; 
 Agar V. (Jurnev, 2 Mad. 389. 
 
 6 Ord. XVI. 18. 
 
 Ord. XVI. 14; see Munclicster, Slief- 
 ficld, Hiid Lincolnsliire Knilwnv Ci>. v. 
 W.'rk^o;. IJ.mpI oI Hcidlli, 2 K. Sc J. 2r,. 
 
 "^ All ajiplicalinn for riirllicr time nviy 
 be niiide iit Clriinlicrs by summon", wliicli 
 must lie served on the pl;iintin°'8 solic'tor. 
 For linni, fee Vol. III. 
 
 « Or I. XIV. 1.5. Hy the 64fli Kqnity 
 Ride of the I'nifpd Statei (,'oiirt«, it ik pro- 
 videil. that "if, sit the heiirin;,', the excep- 
 ti lis shall he allowel, lhcdelend;mt shall 
 be bound to put in a full and completii 
 nn»wiT thereto, on the lu-xt sneceerling 
 rule day; (itherwi-e the plaintiff shall, as 
 
 VOL. I. 
 
 of course, lie entitled to lake the 1.111, so fir 
 as the mntler of such e.xeeplioiH is enii- 
 cerncd, as confessed, or, iit his elei'tinn, he 
 may have a writ of atlaclimi'nt lo c nip'-l 
 the ce'endatit to make a better answer to 
 the matter of the exccjitions; and tlie de- 
 fend ilit, when he i-* in custi dy, up n such 
 writ, sliall not be ilischarged therelVon but 
 by ;rti ord>T oi the (,'ourt, or of a .lulge 
 there'if, upon his puttiii;; in such answer 
 anil rom|)lvirf; w tli siicli other terms, as 
 the Court or .)ud{,n' m ly direct " 
 
 '■' U Inat r. (iraham, 5 S m. >)~0. 
 
 1" l'"(ir form of petition, sc" Vol. 111. 
 
 11 'I'he Court (U. S'ates C ('.) may, for 
 the purpose of avo'diiij; nnneces>-iii v de- 
 lays, entertain a motion to amend a iiill in 
 lv"|nity, lit tlie same time that exccplions to 
 the answ.-r arc file I, a d mux i>i|iiir.^ the 
 defendants to answer the amended m ilter 
 and the exceptions |i gellier. Iviltredguv. 
 Claremont 15a' k, 3 Story, 600. 
 
 1- Au(e, p. 738. 
 
 C. XYII. § 4. 
 
 Exceptions 
 not to stand 
 over indefi- 
 nitely. 
 
 Relevancy of 
 the question 
 to be con- 
 sidered. 
 
 Answer held 
 sufficient on 
 argument, is 
 deemed so 
 from order 
 thereon. 
 
 If first or 
 second an- 
 swer insuf- 
 ficient, or 
 defendant 
 submits 
 after excep- 
 tions set 
 down, time 
 may be ap- 
 pointed for 
 further 
 answer. 
 
 On default, 
 process of 
 contempt 
 may issue. 
 
 Plaintiff may 
 obtain order 
 to amend, 
 and that 
 defendant 
 answer 
 amendments 
 and excep- 
 tions to- 
 gether. 
 
 49
 
 770 
 
 ANSWERS. 
 
 C. XVII. 5 1. 
 
 Hut .ll'k'iul- 
 
 aiit l>y 
 aiiswcriiii: 
 tu-roiv siTvice 
 of I ho onliT, 
 may dol'i-at 
 its object. 
 
 It" second or 
 tliini answer 
 insutiicient, 
 old excep- 
 tions must be 
 set down; 
 
 otherwise, 
 further 
 answer 
 sutHcient. 
 
 Form of 
 notice of 
 setting down 
 old excep- 
 tions. 
 
 Papers for 
 tlie Judge. 
 
 After old 
 exceptions 
 set down, 
 further time 
 to answer to 
 be applied for 
 in Court. 
 
 Where bill 
 amended, 
 new excep- 
 tions may be 
 taken to 
 answer to the 
 amendments. 
 
 to tlie luuciuliueiits, williiii loiirtceu tluys after service of the inter- 
 roijatories to tlio anu'iuU'il hill.^ The order must be served on the 
 dcfc'iulant's solicitor; and if the <k'fcndant can ])ut in his fnrtlier 
 answer before lie is served with the order, he Avill de])nve the 
 l»laintilf of the benefit of it, and it will be discharged for irregu- 
 larity,- notwithstanding the defendant has notice of the order at 
 the time, he files his further answer.^ 
 
 If, after exceptions allowed or submitted to, the defendant puts 
 in a second or third answer which the plaintiff considers insuf- 
 ficient, he may at once set down the old exceptions for hearing,* 
 and give notice thereo to the defendant.^ If the plaintiff docs 
 not set down the old exceptions within fourteen days after the 
 further answer has been ])ut in, it Avill, on the expiration of such 
 fourteen days, be deemed sufficient.'' 
 
 The plaintiff must state, in the notice of setting down the old 
 exceptions, the particular exception or exceptions to wdiich he 
 requires a further answer ; '^ and if he does not do so, he may be 
 ordered to pay the costs of the xlefcndant appearing to object 
 on account of the irregularity of the notice. Leave will, however, 
 be given to the 2)laintiff, to amend the notice, and set down the 
 exceptions again.* 
 
 The exceptions so set down come on for argument in Court as 
 before exj^lained ; and previously thereto the Judge should be for- 
 nished w'ith a printed copy of the further answer, in addition to 
 the former jjapers. 
 
 If the defendant submits to the old exceptions, Avhich have been 
 set down after a further answer has been put in, an a])plication for 
 time to put in a further answer should not be made at Chambers : 
 because, by consenting to that course, the plaintiff might be held 
 to have waived the exceptions ; but the exceptions should be 
 alloAved to come on for hearing before the Court, and a time will 
 then be fixed within which the defendant must put in his further 
 answer.^ 
 
 No new exceptions can be taken to a second or third answer. 
 Where, however, the bill has been amended, and an answer is sub- 
 sequently filed, the plaintift" may file new cxcej)tions, specifying 
 
 1 Ord. XXXVII. 6; see Bennington 
 Iron Co. V. Campbell, 2 Paige, 100. 
 
 2 Mayne v. Hochin, 1 Dick. 255 ; IJcthuen 
 V. Bateman, ib. 296; Knox v. Symmonds, 
 1 Yes. J. i>7, 88; Paty f. Simpson, 2 (Jox, 
 392; I'artriuge v. Ilaycraft, 11 Yes. 670, 
 578; Hemniing r. Dingwuli, 8 Beav. 102. 
 
 8 I'ariente v. Bensusan, 13 Sim. 522 ; 7 
 Jur. 618. 
 
 4 Ord. XYI. 13. 
 
 5 For form of notice, see Vol. III. 
 e Ord. XYI. 13, 16. 
 
 f Ord. XVl. 17. See notice in Vol. III. 
 
 8 Tanner v. Strutton, 15 Jur. 457, V. C. 
 Ld. C; Thomas v. Kawlings, 28 Beav. 
 346. 
 
 '•> Manchester, Sheffield, and Liricoln'-hire 
 Pailwav Company v. The Worksop Board 
 oflleafth, 2 K. & J. 25. It would seem, 
 however, that the plaintiff and defendant 
 may agree that, to .save expense, the appli- 
 cation shidl be made by summons at Cham- 
 bers; in which case, the order should state 
 that, by consent, the exceptions shall not 
 be deemed to be waived or prejudiced.
 
 EXCEPTIONS TO ANSWERS. 
 
 771 
 
 the inteiTogatories to the amended bill which he does not think 
 sufficiently answered ; but such new exceptions must not extend to 
 any matter which was contained in the interrogatories to the origi- 
 nal bill.-^ Where the bill has been amended, the ])laintiff must go 
 before the Court upon the old exceptions, as they apply to the 
 original bill, and upon new exceptions as to the new matter intro- 
 duced by the amendments ; in such case, however, he may have 
 the judgment of the Court upon the answer to the amendments, 
 with reference to such parts of the original bill as apply to them ; 
 and the original words apply to the amendments, the Court, in 
 considering whether the answer is sufficient as to the amendments, 
 will take into consideration every thing in the amended bill that 
 gives a construction to the amendments.^ 
 
 The proceedings in Court ujjon exceptions to a second or third 
 answer for insufficiency are precisely the same as those upon excep- 
 tions to a first. The Court, however, in deciding upon the excej)- 
 tions, will not look at the second or third answer only, but will 
 look at it in connection with the preceding answer.^ If the Court, 
 upon looking into the answers in the manner above stated, is still 
 of opinion that no sufficient answer is given to the matter origi- 
 nally excepted to, judgment will be given accordingly, and the 
 exceptions will be allowed. 
 
 If a first or second answer is eld insufficient, the Court will, as 
 we have seen, apj^oint a time within which the further answer 
 must be put in ; * but in the case of a third insufficient answer, 
 this is unnecessary : for, in such a case, the Ct)urt may order the 
 defendant to be examined upon interrogatories to the point as 
 to which it is held to be insufficient, and to stand committed until 
 he shall have perfectly answered the interrogatories; and the 
 defendant must pay such costs as the Court shall think fit to 
 award.** After a third ansAver has been lield insuflicient, a 
 fourth answer is irregular, and will be ordered to be taken otf 
 the fi]e.« 
 
 If the defeuflant is ordered to stand committed, a co])y of the 
 order of committal must be delivered to the Tij)staft' of the Court, 
 who will proceed to ifi-rest the defendant. If the defendant is 
 
 C.XVII. §4. 
 
 Proceedings 
 ill (.'oiirt, 
 upon excep- 
 tions to a 
 second or 
 tliird answer. 
 
 After a third 
 insuflicient 
 answer, de- 
 fendant to be 
 examined on 
 interrogato- 
 ries, and 
 stand com- 
 niittcd till 
 perfect 
 answer; 
 and a fourth 
 answer will 
 be irregular. 
 
 Order for 
 committal: 
 how exe- 
 cuted. 
 
 1 Partridge v. Ilaycraft, 11 Ves. 070, 
 681. 
 
 2 Jh. 5H]. 
 
 8 Fanjulmrson v. Balfour, T. & U. 189. 
 
 * Ord. XVF. 14; anle, p. 7«'J. 
 
 6 Ord. XVI. I'J. riiis order does not 
 apply to a tliinl in^uflirieiit afli<lavit as to 
 document.s. Harford r. Lloyd. "2 \V. IJ. '.37, 
 V. (;. W.; and as to the firarti'-e In the 
 case of an iiisuflicient answer to iuterroga- 
 toricB, exhibited in prosecuting a decree at 
 
 Cliambers, see Ilayward v. Ilaywnrd, 
 Ap. 31; 8ee also Allfrev v. Allln-v 
 Ueav. 020. liy the 10th Kule f^r 
 Heg. of Prac. in Ohan. in Muss., up. 
 second answer being ailjudgcd in^iillu- 
 costs shall be doubl.'d by the Coiut; 
 the defendant may be c.xamiiieil iipoi 
 terrogiitories iind commitleil until lie 
 answer them. 
 
 '' Liverpool i;. Chippendall, 14 Jur 
 V. C. E. 
 
 Iv:iv 
 
 1-, n 
 
 the 
 
 n a 
 iciit, 
 
 a 11(1 
 1 in- 
 
 ■hMll 
 
 301,
 
 ANSWERS. 
 
 C. XVII. M, 
 
 Miti,;;atoii 
 custiuiv : 
 when 
 ponuitli il. 
 
 After jiloa 
 overnili'd, 
 roiuinittal 
 will iiKt fol- 
 low on two 
 insiiliioiont 
 answers. 
 
 Interrogato- 
 ries : 
 
 how prepared 
 and settled ; 
 
 how allowed. 
 
 Examination 
 thereon: how 
 taken. 
 
 Notice of 
 filing exam- 
 ination. 
 
 nnvstoil, ho slunild, in strictness, be taken to Whitccvoss Street 
 Prison ; ^ Imt in Varquharson v. Jialfoia\- tlie det'ondant, being a 
 livntlonian advanced in years, was, by tl>c order of the Court, 
 allowed to remain at an hotel in the iiei^hborhood of Lincoln's 
 Inn, in the t'ustody <il" the 'l'i|istair, (ill his examination should 
 be completed. 
 
 If a defendant should, alter j)lea ovi'rniled, jnit in two answers 
 Avhich are insullicicnt, it seems the plea is not treated as an 
 answer, and he -will not be liable to the consequences of a third 
 insufficient ans^ver.^ 
 
 If a j)laintitl', having obtained the order that the defendant be 
 examined ui)on interrogatories, means to exhibit interrogatories, 
 he must, if the defendant is in custody, do so immediately.'' The 
 interrogatories are drawn by counsel, but must be settled by the 
 Judge : ^ care being taken that they go directly to the points as to 
 which the exceptions are sustained ; and the Judge must deter- 
 mine whether they have a direct reference to those points or not.® 
 The subsequent proceedings would seem to be as follows : The 
 interrogatories having been settled by the Judge, a fair copy 
 thereof is made by the plaintiff, on jiaper of the same description 
 and size as that on which -ImIIs are printed ; '' and the signature of 
 the Judge's Chief Clerk is obtained to a memorandum of allow- 
 ance in the margin tliereof? The cojiy so allowed is left at the 
 Judge's Chambers, and notice thereof is given to the defendant by 
 the plaintifi? The defendant may then procure a copy of the 
 interrogatories from the Chambers; and he should prepare a 
 written answer thereto ; ^^ and obtain at Chambers an ap})ointment 
 to proceed thereon. On attending such appointment, the defend- 
 ant will be examined on oath by the Judge, who will comj)are 
 the proposed answer with the interrogatories, and determine 
 whether or not it is sufficient. If the proposed answer, or exami- 
 nation as it is called, is considered insufficient in any respect, the 
 defect will be supplied by the personal examination of the defend- 
 ant by the Judge, until the Judge is of opinion that the examina- 
 tion is sufficient. The examination, when completed, will be 
 authenticated by the signature of the Judge's Chief Clerk ; and 
 he will transmit the interrogatories and examination to the Record 
 and Writ Clerks' Office, 'to be there filed;" and notice of the filing 
 
 1 25 & 26 Vic. c. 104, § 2. 
 
 2 See T. & R. 184, I'Jl, 193. 
 
 8 Ct'twnrihy V. Mellisli, I (Jlia. Ca. 279. 
 
 * Farquharson v. Hallbiir, T. & li 191. 
 
 5 See 1.5 & 16 Vic. c. 80, § 26; Il.a}'- 
 •wanl V. Hay ward, Kay Ap. 31. I'or Conn 
 ot interrojjaforie'i, see Vol. III. 
 
 Fafqutiarson v. Balfour, T. & R. 203. 
 
 1 Or.l. 6 Mar., 1800, r. 10. As to such 
 paper, see Ord. IX. 3; ante, p. 3b6. 
 
 " For form of memorandum, see Vol. 
 III. 
 y For form of nntire, see Vol. III. 
 10 For the formal paits, si'c Vol. III. 
 " See Ord X.\ XV. 31. The examina- 
 tion doe- not reipiire the signature of coun- 
 Bel; Braithwaitc's I'r. 46.
 
 EXCEPTIONS TO ANSWERS. 
 
 773 
 
 thereof must be given by the defendant to the pLiintifT.^ Tlie 
 defendant is entitled to be attended by his counsel at his examina- 
 tion, but the plaintiff is not entitled to notice of the defendant's 
 being under examination, and has no right to attend.^ 
 
 The defendant having passed his examination to the satisf iction 
 of the Judge, may apply to be discharged out of custody. He is 
 not, however, entitled to be discharged until the plaintiff has had 
 an opportvmity of perusing the examination, in order that he may 
 be satisfied that it is sufticient.^ The plaintiff has also a right, 
 before the defendant is discharged, to see all the documents men- 
 tioned in the schedules, or referred to in the examination, if they 
 are so mentioned or referred to that, in the case of an answer, they 
 would have made part of the answer.'* 
 
 The a])plication for the discharge of the defendant from custody 
 is made on motion, notice of Avhich must be given to the plain- 
 tiff;^ and the order will be made upon payment of the costs, 
 charges, and expenses occasioned to the plaintiff by the insufficient 
 answer.' 
 
 Where the defendant submits to exceptions for insufficiency 
 which have not been set down for hearing, he must pay to the 
 jilaintiff 20s. costs ; and where a plaintiff obtains a decree with 
 costs, the costs occasioned to the plaintiff by the insufficiency of 
 the answer of any defendant, who has submitted to exceptions for 
 insufficiency, will be deemed to be part of the plaintiff's costs in 
 the cause : such sum being deducted therefrom as shall have been 
 paid by the defendant, upon the exceptions to the said answer 
 being submitted to.'' It must be recollected, however, that tliis 
 rule will only apply where the question of the extra costs has not 
 been disposed of by the Court in the course of the suit.* 
 
 Under the old practice of the Court, if the answer was reported 
 insufficient, the defendant was, if it was a first answer, to pay 40s. 
 costs, when the answer was put in by the defendant in person, 
 but if put in by commission, 505. ; if it was- a second answer, the 
 defendant was to pay 60s. costs ; upon the third answer, 80s. 
 costs, and upon the fourth answer 5^.,^ with the costs of the con- 
 tempt, if the jilaintiff availed himself of the right of commitment.^'* 
 It seems, tliat the present practice is to tax the costs of exceptions, 
 and they are considered to be in the discretion of the Court." 
 Where, however, the exceptions are allowed, the costs will, in 
 
 C. XVII. §4. 
 
 Application 
 for<lischarge: 
 how made. 
 
 Costs: 
 Wliero 
 exceptions 
 submitted to, 
 before set 
 down'. 
 
 Where set 
 down and 
 allowed. 
 
 1 F'or form of notice, oec Vol. III. 
 
 2 Farijuh^ir-on v. Balfour, T. & li. 202, 
 203; Bee Hnvward v. Havwiird, Kay Ap. 
 31. 
 
 8 ^'a^f|uba^8on v. Balfour, T. & li. 201. 
 
 < /h. 202. 
 
 ' For form of notice, see Vol. III. 
 
 « T. & U. 200. 
 
 7 Ord. XL. 13. 
 
 8 I'oo'c- r. (iordnn, C. P. Coop. 433; 8 
 L. .J. X. S. Ch. 20.",. 
 
 » Iloanics' Onl. 182, 183. 
 
 10 Jbiil ; and Beanies on Costs, 227. 
 
 11 13 & 14 Vic. c. 36, § 32; Morgan & 
 Davey, 27.
 
 ANSWERS. 
 
 I'. XVll. § 4. 
 
 Wlierc 
 
 l>;irtially 
 
 allowi'il. 
 
 dots niiist l>o 
 aiii>li('ii l\>r at 
 lioariui;. 
 
 Wluro dy- 
 I'oiulaiit is a 
 married 
 woman, 
 living apart. 
 
 Set off 
 against costs 
 of bill of 
 discovery. 
 
 In what 
 manner 
 recovered. 
 
 Appeal lies 
 from order on 
 exceptions. 
 
 <:;oiuM-al, I>c ordorcd to follow the decision: liccause the defendnnt 
 e:m always i)reveiit tlu' costs, or the greater part of them, by 
 sultinitting to the exceptions.' Wliere the exce])tions are over- 
 luled, the costs will also, in L!,i'nei'al, he (lirectc(l to follow the 
 dei'isioii.- If tlicy arc p.artially allowed, and partially overruled, 
 the costs of those allowed will be ordered to be set off against 
 those overruled.'* If no direction as to the costs is given, they 
 will, under the present practice, be costs in tlic cause.* 
 
 Appiicatit)n must bo made for the costs on the hearing of the 
 exceittions ;^ and wliere the exceptions are allowed, the costs 
 may be ordered to be ])aid immediately." Where a married 
 wonuin, living separate from her husband, tiled an insutruticnt 
 se]>arate answer, leave was given to the plaintiff to apply for part 
 of the costs out of any sums which might come to her, on account 
 of her separate estate, as the order could not be personally en- 
 forced against her.'' 
 
 Where, on a sufficient answer being filed, the plaintiff has been 
 ordered to pay the costs of a bill of discovery,^ the costs of excep- 
 tions "^'liich have been allowed to the first answer, may be ordered, 
 on the plaintiff's ex ^xirte ap])lication, to be deducted from the 
 costs payable to the defendant.^ 
 
 The costs of insufficient answers are recoverable by the usual 
 process of subpoena and attachment, or hy fieri facias, or elegit ^ 
 and if a first or second answer is held insufficient, the plaintiff will 
 not, by accepting a further answer, waive his right to the costs 
 already due to him for the insufficiency of the former answer.^" 
 
 An order of the Court, allowing or overruling exceptions, may 
 be api)ealed- from in the usual manner.^^ 
 
 1 Newton v. Dimes, 3 Jur. N. S. 583, V. 
 C. W. 
 
 2 Stent V. Wickens, 5 De G. & S. 384; 
 B. V. W., 31 Befiv. 342, 346; S. C. nom. 
 A. V. B., 8 Jur. N. S. 1141. By the 65th 
 Equity Rule of the Uniti'd States Courts, 
 it is provided, that " if, upon argument, 
 the pi:iiiitift"'.s exceptions to the answer 
 shall be overruled, or the answer shall be 
 adjudged in>uf!]cient, the prevailing party 
 shall be entitled to all the costs occasioned 
 thereby, unless otherwise directed by the 
 Court, or the Judge thereof, at the hearing 
 upon the exceptions." 
 
 2 Willis V. Childe, 13 Beav. 454; Dally 
 ». Worbani, 32 Beav. 69; Bridirewater iJ. 
 De Winton, 9 Jur. N. S. 1270, 1272; 12 
 W. R. 40, V. C. K. ; see Order in Seton, 
 1256, No. 8; see as to costs, where several 
 
 questions were contained in the interrog- 
 atory and some answered. I.anf^ton ii. 
 Waite, 1 W. N. 328; 15 W. R. 53. V. C. K. 
 
 4 Crosslev v. Stewart, 11 W. R. 636, 
 V. C. K. " 
 
 5 Earp V. Lloyd. 4 K. & J. 58; Crossley 
 V. Stewart. 11 W. R. 636, V. C. K.; Betts 
 V. Rimell, 1 \V. N. 22, V. C. W. 
 
 6 Thnmas v. Rawling, 27 Beav. 375. 
 
 ■? I'embcrton v. M'Giil, 1 Jur. N. S. 
 1045, V. C. W. 
 
 8 See.^w^i, Chap. XXXIV. § 2, BiUs of 
 Discovery. 
 
 9 Hughes V. Clerk, 6 Hare, 195; but 
 see now, Thomas v. Rawling, 27 Beav. 
 375. 
 
 1" Brotherton v. Chance, Bunb. 34. 
 11 See post, Chap. XXXII., Rehearing 
 and Appeals.
 
 FURTHER ANSWERS. ANSWERS TO AMENDED BILLS. 775 
 
 C. XMI. § 5. 
 
 Section V. — Further Ansicers — Answers to Amended JSiUs. 
 
 If a defendant, not being in contempt, submits to exceptions Time for 
 to his answer for insufficiency before they are set down for hear- swer, where 
 inff, he has, as we liave seen,^ fourteen days from the date of the exceptions 
 
 ^ . . . , . 1-1 ■ 1 • n T T-r.-iT SHt)nntted to 
 
 submission withm which to put m his lurther answer ; and if lie does before set 
 not answer within such time, or obtain further time and answer '^°""' 
 Avithin such furtlier time,^ the plaintiff may sue out process of con- ot^defauit"*^*^^ 
 tempt against him.* 
 
 If the defendant is in contempt, no time is allowed him to put Where de- 
 in his further answer, beyond the eight days from the filing of the cmuempt '" 
 exceptions : before the expiration of which time the plaintiff can- 
 not, as we have seen, set them down for hearing ; * a defendant 
 may however put in a further answer, at any time, pending the 
 exceptions.^ 
 
 If, after the exceptions are set down for hearing, a defendant, If exceptions 
 not being in contempt, submits to answer, or if the Court holds court ap- 
 the first or second answer to be insuflicient, the Court may, as we P'»nts time 
 
 1 . . • 1 • 1 • 1 1 • T • ^ t for further 
 
 have seen, appoint a time within which he must put m his lurther answer. 
 answer ; and if he does not put in his further answer within the 
 time so appointed, or obtain further time and answer within such 
 further time, the plaintiff may sue out process of contempt against 
 him.^ 
 
 If the defendant submits to the exceptions after they are set Application 
 
 down, it seems that they should be allowed to come on for hear- t'ime"made to 
 
 ing, and an application be then made to the Court to appoint a the Court. 
 
 time within which the defendant must put in his further answer.'' Where 
 
 If the exceptions are allowed, the Court will, at the request of the any^^l|!(]""^ 
 
 parties, at the time of giving its decision, appoint a time within Coiirt ap- 
 
 which the defendant is to put in his further answer.^ atileann''*! 
 
 If, after the exceptions are allowed or submitted to, the defend- -^^p^e 
 
 ant desires to amend his bill, he may obtain on petition, as defendant 
 
 of course, at the Rolls, an order that he may be at liberty to a[,'swor 
 
 amend his bill, and that the defendant may answer the amen<lnu'nts ""Y"'''"^"*^ 
 
 ami exceptions together.^ The defendant must then, as we have tions 
 
 seen," put in his further answer and his answer to the amended ^''^^ther. 
 bill, within fourteen days after service on him of the interrogatories 
 
 Ante, p. 7G7. 7 Manchester, Shefiield, and Lincoln- 
 
 2 i^iie il/l'l. shire Ha Iwav (J(pni[>anv r. Worksop Honrd 
 
 3 f)rd. XVF. 9, 15; ante, p. 707 note. of Health, 2'K. & J. 25; but see ante, p. 
 
 * Orl. XVF. K, 11; imle, p. 7<i7. 77(1, n. (9). 
 
 « Ingham v. Ingham, 9 Sim. 3G3; 2 Jur. » Ante, p. 769. 
 
 8«6. Ante, p. 769. 
 
 • Ord. XVI. 14, 15; ante, p. 769. w Ante, pp. 739, 769.
 
 776 
 
 ANSWEUS. 
 
 c. XVII. §r. 
 
 Fiirtlior :in- 
 SWiT slioiiKl 
 only oxtoiul 
 to iiiiaii- 
 swerod iutor- 
 rojjatories j 
 
 not to inter- 
 rotjatories to 
 original bill; 
 
 unless en- 
 tirely new 
 case is made 
 by amend- 
 ments. 
 
 Forms of fur- 
 ther answers. 
 
 to tho :iim-nili'.l bill.^ If (ho dfil'iidant put in ;i furlluT answer 
 only, or an answiM- to tlio ainiMKk'd bill only, tli(> plaintilV may 
 inovo to havo it taki-n oil' tlio lik>, uulo.ss \w is (k'simus that it 
 slioulil ivniain tluTi': in wliicli t-aso, lie should move for leave to 
 issue an attai'hment.- Il'the defendant, after exccjitions allowed, ])ut 
 in his further answer to the original bill, before the plaintitf serves the 
 order for liim to answi r tlu' amendments and Gxce])tions at the same 
 time, he will deprive the j)laintift"of the benefit of the order." 
 
 A t\irther answer, as well as an answer to an amended bill, is in 
 every respeet similar to, and is eonsidered as part of, the answer 
 to the original bill;'' therefore, a further answer shoukl only ex- 
 tend to the interrogatories Avhich have not been answered already ; 
 and if a defendant, in a further answer, or an answer to an 
 amended bill, repeats any thing contained in a former answer, the 
 repetition, unless it varies the defence in point of substance, or is 
 otherwise necessary or expedient, will be considered as imper- 
 tinent ; ^ and the defendant may be ordered to pay the costs oc- 
 casioned by the introduction of such impertinent matter." 
 
 The defendant need not answer any interrogatories to tlie 
 amended bill which have been,'' or might have been,* put to the 
 original bill, unless the plaintiff has amended his bill, stating an 
 entirely new case : for then the defendant must answer that case, 
 even though in so doing he answers some of the interrogatories 
 Avhich were or might have been filed to the original bill.^ 
 
 The form of a further answer and of an answer to an amended 
 bill, is nearly the same as that of an answer to an original bill. 
 If it be an answer to amendments as well as to exceptions, it 
 must be entitled " the further answer of A. B., the above-named 
 defendant, to the bill of complaint of the above-named plaintiff, 
 and the answer of the same defendant to the amended bill of 
 complaint of the said plaintiff."^" If, after exceptions to the 
 original bill are allowed, the plaintiff amends his bill, and the de- 
 fendant puts in a further answer to the original bill and an answer 
 to the amended bill, and the answer is again held insufiicient, 
 whereupon the bill is again amended, the answer should be en- 
 
 1 Ord. XXXVII. 6. 
 
 2 I)e THstet r. Lopez, 1 Sim. 11. 
 
 3 Mayno v. Ilocliin, 1 Dick. 255; Be- 
 tliuen V. Batemaii, ib. 29ti; Knox v. Sym- 
 monds, 1 Yes. J. 87, 88; Piitv v. Simpson, 
 2 Cox, 392; Partridge v. Haycraft. 11 Ves. 
 570, 578; Hemming v Dirigwa'l, 8 Beav. 
 102; Pariente v Bensusan, 13 Sim. 522; 
 7 Jur. 618. 
 
 < Story Eq. PI. § 868; Bennington Iron 
 Co. V. Ciimpbeil,2 Paige, 160; Mitford Eq. 
 PI. by .leremv, 318. 
 
 6 liowen v.'idley, 6 Paige. 46; Trust & 
 Fire Ins. Co. v. Jenkins, 8 Paige, 590. 
 
 6 15 & 16 Vic. c. 86, § 17. For the prac- 
 tice as to impertinence, see ante, pp. 349, 
 3 50. 
 
 7 Wich'v. Parker, 22 Benv. 59; 2 Jur. 
 N. S. 583; anlc, p 729. 
 
 8 Drake v. Symes, 2 De G., F. & J. 81; 
 Dennis v. Kochussen, 4 Jur. N. S. 298, V. 
 C. W. 
 
 '•* Mazerredo v. Maitland, 3 .Mad. 60. 72. 
 10 Peacock v. Duke ol Ikvlfnrd. 1 V. & 
 B. 186; Braithwaite's Pr. 42; see Benning- 
 ton Iron Co. V. Campbell, 2 Paige, 160; see 
 forms in Vol. III.
 
 AMENDING ANSWERS. SUPPLEMENTAL ANSWERS. 
 
 777 
 
 titlcil " the further answer of A. B ., the above-named defendant, 
 to the orighial and first amended bill of complaint of the above- 
 named plaintiff, and the answer of the same defendant to the 
 secondly amended bill of complaint of the said plaintiff." ^ It is 
 not necessary, in answering a bill Avhich has been aniende<l before 
 answer, to call it an answer to the original and amended bill ; the 
 most correct Avay is to call it the answer to " the amended bill," or 
 to " the secondly (or thirdly) amended bill," only : as the original 
 bill lias become nugatory by the amendment, and the defendant is 
 not bound to notice it, either in an answer or a demurrer.- 
 
 Further answers, and answers to amended bills, must be pre- 
 pared, signed, taken, filed, and printed in the same manner as 
 answers to original bills.^ 
 
 If the plaintiff has vexatiously required an answer to the 
 amended bill, and the defendant claims the costs of it in such 
 answer, and asks for them at the hearing, the Court will order 
 them to be paid at once.* 
 
 A defendant who is required to answer an amended bill, must 
 put in his plea, answer, or demurrer thereto, not demurring alone, 
 within twenty-eight days fi'om the delivery to him or his solicitor 
 of a copy of the interrogatories which he is required to answer ; ^ 
 and if an answer is not required to the amended bill, a defendant 
 who has appeared to and answered, or has not been required to 
 answer, the original bill, but desires to answer the amended bill, 
 must put in his answer thereto within fourteen days after the ex- 
 piration of the time Avithin which, if an answer had been required, 
 he might have been served with interrogatories for his examina- 
 tion in answer to such amended bill, or Avithin such furtlier time 
 as the Judge may allow." An application for further time must 
 be made by special summons, in the manner before explained.'' 
 
 C. XYII. § 6. 
 
 IIow pre- 
 pared, &c. 
 
 Costs, where 
 answer to 
 amended bill 
 is vexatiously 
 required. 
 
 Time for 
 answerinj:!^ 
 amended bill : 
 when interro- 
 gated ; 
 
 when not 
 interrogated. 
 
 Section VI. — Amending Ansioers — and /Sujjjylemental 
 Ansioers. 
 
 After an answer has been put in upon oath, the Court will not, in what cases 
 for obvious reasons, readily suffer any alteration to be made in it.* aUowed"*^"'^ 
 
 1 See Braithwaite's Pr. 42, and forms 
 in Vol. MI. 
 
 2 .Smith r Bryon, .3 Mad. 428. It may 
 be c died '■ The answer to the bill of com- 
 plaint." ytighv V. \Vv^\>\\ 9 Heav. 311,313. 
 
 a Se<' «H^, §§ 2. 3, oftliis eliapter. 
 
 * ("oi-k'. )). Stanley, 4 .Jur. N. S. 942; 6 
 
 w. H. 4'.. V. (;. s. 
 
 6 Ord. X.XXVH. 4; ante, p. 738. 
 « Old. X.NXVir. 7. This piveH thirty 
 days Irom tlie date of service of the amend- 
 
 ed bill, where the service is effected within 
 the jurisdiction; see ante, p. 740. 
 
 T Ante, p. 741. 
 
 8 See Howe w. Rnssell, 36 JIaine, 115; 
 American Life Ins. & Trust (,'o. v. liavanl, 
 and Same v. Sackett, 3 Barb. Cli."610; 
 Vaiulervere 1'. Reading, 1 Stockt. (N. .1.) 
 446. In Maine, answers, ])leas, and rules 
 nia}' be amended at any time on the like 
 terms as a hill. Rule 3, Maine Chancery 
 I'raetice; but see IIowo v. Kussell, 86 
 Maine, 116.
 
 ANSWERS. 
 
 r 
 
 wl\t'i\> mis- 
 take or error 
 
 0. XVIT. §G. Till TO :\n\ however, many instances in tlie ))0()ks in wliich it np- 
 )>ears that the Court, npon special application, has allowed the 
 iletendant to reform his answer.^ Thus, where, in answer to a tithe 
 bill, the ilefemlant lias sworn that a certain close contained nine 
 acres, he was ])ennitted to amend it by statins^; the dose to contain 
 seventeen acres, even tliouoh issue had been joined;^ so, where, 
 owing to the mistake of the engrossing clerk, the words " Aer 
 shares" liad been introduced into an answer instead of "toi 
 shares," the answer was allowed to be taken off the file and 
 amended, though a service had been made;^ an<l where there 
 has been a mistake hi the title of the answer, an amendment of 
 it has been permitted,* even though opposed by the plaintiff.^ 
 
 The Court has also alloAved a defendant to amend his answer 
 wliere new matter has come to his knowledge since it was jiut in," 
 or in cases of suqirise, as where an addition has been made to the 
 draft of the answer after the defendant has perused it.'' In like 
 manner, where a plaintiff, having drawn the defendant into an 
 
 where new 
 
 matter dis- 
 covereil, 
 
 or surprise, 
 or misrepre- 
 seutation. 
 
 1 Campion v. Kille, 1 McCarter (N..I.) 
 229, 232. In matters of form, or mistakes 
 of dates, or verbal inaccuracies. Courts of 
 E(|uity are very indulgent in allowing 
 amendments of answers; but it is on!}' 
 under very special circumstances, that a 
 defendant can be allowed to make any 
 material alteration in his answer, after it 
 has been put in. See M'Kim v. Thomp- 
 son, 1 Bland, 162; Bowen r. Cross, 4 John. 
 Ch. 37o; 1 Barb. Ch. Pr. 163, 164; Smith 
 r. Babcock, 3 Sumner, 583; Burden v. 
 M'Elmovle, 1 Bailey Eq. 375; Western 
 Reserve'Bank v. Stryker, 1 Clarke, 380; 
 Cock V. Evans, 9 Yerger, 287, 288 ; Giles 
 V. (jiles, 1 Bailev Eq. 428; Caster v. Wood, 
 1 Bald. 289; Cullowav v. Dobson, 1 Brock. 
 119; Liggon v. Smith, 4 Hen. & M. 405; 
 Coffman v. Allin, Litt. Sel. Ca. 201 ; Ma- 
 son V. Debow, 2 Ilayw. 178; Mora r. Rog- 
 ers, 4 Havw. 202; Jackson r. Cutright, 
 5 IMunf. 308 ; Beach v. Fultou Bank, 3 
 Wend. 574; Hennings v. Conner, 4 Bibb, 
 299; Taylor v. Bogert, 5 Paige, 33. This 
 subject is treated at length in Story Eq. 
 Pl.§§ 896-901; also in Smith v. Babcock, 
 ubi supra ; Williams r. The Savage Manuf. 
 Co., 3 Md. Ch. Dec. 418; Tillinghast v. 
 Champlin, 4 R. I. 128; Howe v. Russell, 
 36 Maine, 115; Vandervere v. Reading, 1 
 Stockt. (X. J.) 446. 
 
 By the 60th of the Equity Rules of the 
 United States Courts, it is provided that, 
 " after an answer is put in, it ma}' be 
 amended as of course, in any matter of 
 form, or by filling up a blank, or correcting 
 a date, or reference to a document, or other 
 small matter, and be resworn at any time 
 before a replication is put in, or the cause 
 is set down for a hearing, upon bill and 
 answer. But after replication, or such set- 
 ting down for a hearing, it shall not be 
 amended in any material matters, as by 
 adding new facts or defences, or qualifying 
 
 or altering the original statements, except 
 by special leave of the ('ourt, or the Judge 
 thereof, upon motion and cause shown af- 
 ter due notice to the adverse party, sup- 
 ported, if required, by affidavit. And in 
 every case where leave is so granted, the 
 Court or the Judge granting the same, may 
 in his discretion, require that the same bo 
 separately engrossed and added as a dis- 
 tinct amendment to the original answer, so 
 as to be distinguishable therefrom." An 
 amendment changing the whole ground of 
 defence set up in the first answer will not 
 be allowed. Western Reserve Bank v. 
 Stryker, 1 Clarke, 380. Where an answer 
 is amended, the old answer must remain 
 on tile as originally put in. /bid. 
 
 Where the defendant has obtained leave 
 to file an amended answer, he is not to 
 be considered as having put in any answer, 
 until such amended answer has l)een tiled. 
 Whiter. Hampton, 9 Iowa (1 With.), 181. 
 
 2 Berney ». Chambers, Bunb. 248; but 
 
 see Montague v. , cited ib. n., and 2 
 
 Gwil. 674, n. (b). 
 
 3 Countess of Gainsborough v. Gifford, 
 2 P. Wins. 424, 427 ; but see Vandervere 
 V. Reading, 1 Stockt. (N. J.) 446. 
 
 4 White V. (iodbold, 1 Mad. 269; Pea- 
 cock V. Duke of ]$edford, 1 V. & B. 186; 
 Thatcher v. Lambert, 5 Hare, 228. 
 
 s Attorney- General v. Corporation of 
 Worcester, 2 Phil. 3; 1 C. P. Coop. t. Cott. 
 18. 
 
 6 Patterson v. Slaughter, Amb. 292; 
 Wells V. Wood, 10 Ves. 401 ; and see re- 
 marks on Patterson v. Slaughter, in Fulton 
 V. Gilmore, 1 Phil. 528; Tillinghast v. 
 Champlin, 4 R. I. 128. 
 
 '' Chute V. Lady Dacre, 1 Eq. Ca. Ab. 
 29, pi. 4, especially where the answer has 
 not been sworn to. Taylor v. Dodd, 5 Ind. 
 (Porter) 246.
 
 AMENDING ANSWERS. SUPPLEMENTAL ANSWERS. 
 
 779 
 
 agreement, whereby, for 300/., he -^-as to relinquish to the plaintiff 
 all his right and interest in a certain estate which had been left to 
 him, filed a bill to have the agreement performed, to which the 
 defendant put in an answer confessing the agreement, and submit- 
 ting to have it performed, but, afterwards discovering tliat the 
 estate was of several thousand pounds' value, he applied for leave 
 to take his answer off the file, and to put in another, leave was 
 granted.^ The Court has also permitted a defendant to amend an 
 answer, by limiting the admission of assets contained therein, 
 Avhere it was clearly established that such admission had been 
 made by mistake, and through the carelessness of the solicitor's 
 clerk.2 
 
 The Court, however, has never permitted amendments of this 
 nature, where the application has been made merely on the ground 
 that the defendant, at the time he put in his answer, was acting 
 lander a mistake in point of law ; and not on the ground of a fact 
 haAnng been incon-ectly stated.^ Thus, where a defendant, who 
 was an executor, had admitted himself accountable for the surplus, 
 and it was afterwards found that the circumstances of the case 
 were such that he would have been entitled to it himself, permis- 
 sion to amend was refused.^ So, where a defendant had, by his 
 answer, admitted the receipt of a sum of money from his father by 
 way of advancement, and reftised to bring it into hotchpot, he 
 was not pemiitted to amend his answer as to the admission, 
 although he swore that he made it under a mistake as to the law 
 of the case.^ 
 
 The Court will also refuse to permit an amendment of an answer, 
 after an indictment for poijury prefeiTcd or tlireatencd, even 
 thougli it consider it to be clear that the defendant did not intend 
 to perjure himself, and had no interest in so doing,* 
 
 From the above cases it apj^ears, that it was formerly ^hc general 
 practice of the Court, if it saw a sufticient ground for so oing, to 
 permit the defendant to amend his answei*. Lord ThurloAV, how- 
 ever, as it seems, introduced a better course in cases of mistake : 
 
 C. XYII. § 6. 
 
 By limiting 
 admission of 
 
 assets. 
 
 Not where 
 facts are cor- 
 rectly stated, 
 but law mis- 
 taken. 
 
 1 Alpha r. Payman,! Dick. 33. So where 
 nn order, tiraiitinK to tlie plaintiff the rifflit 
 to siirchartje and falsify an account, was 
 appi'alfd from, and the appellate Court 
 remanded tlic cause fortlic purpose; ofliav- 
 injj the pleadin^cs am<'iidf(l. and for furtiier 
 proceedinfjH, and extended tlio rifjhtto sur- 
 cUnriXK and falsify the account to Ijoth par- 
 ties, provided the defendant's amended 
 jiieadinjrs should warrant such extension. 
 It w:is lielil that the defenrliint could amend 
 his answer »o as to sureharpeand falsify in 
 resfieet to matters known to liim at the 
 time of fdin^; hit original answer. Wil- 
 liams V. The Savage Manuf. Co., 3 Md. 
 Ch. Dec. 418. 
 
 2 Dagly V. Crump, ih. 35; and see 
 Cooper r.'Uttoxeter IJuriiil Bonrd, 1 II. & 
 M. 680; Iluphes v. Bloomer. 9 PaiRe, 2C9. 
 
 8 Branch r. Dawson, 9 Geo. 592. So 
 where there has been a decree to account, 
 the defendant will not be permitted to 
 amend his answer so as to embrace ;he 
 defence of the Statute of Limitations. 
 McKea V David, 7 Rich. Kq. (S. C.) 375. 
 
 4 ]{iiw!ins)'. Powej, 1 P. Wms. 298; see, 
 however. Brown r. Lake, 1 De O. & S. 144. 
 
 <> I*farce r-. Grove, Amb. (!5; 3 Afk. 522. 
 
 •> Karl Vcrney v. Macnnmara, 1 Hro. (3. 
 C. 419; I'helps v. Prothero, 2 Dc G. & S. 
 274. 
 
 Nor where a 
 prosecution is 
 pending. 
 
 Supple- 
 mental an- 
 swer, in lieu 
 of amending :
 
 780 
 
 ANSWERS. 
 
 C. XVII. 5(i. 
 
 Pemiitfod 
 in cases of 
 mistake; 
 
 or of igno- 
 rance, 
 
 or of subse- 
 quent events 
 occurring'. 
 
 Court very 
 cautious in 
 allowinf^ 
 supplemental 
 answer; 
 
 not t;ikiii^' tlio answor dIV the lilo, but ponnitting a sort of sujiple- 
 monl.il .inswiT to be lilt'il, :uul by that course lesiving to tlio jmrtios 
 tlio olll'ot of wliat has bfou sworn before, with tlie explauatiou 
 given by the su])iik'niental answer.^ 
 
 This praetioe has been since adopted, in all cases in which it is 
 wisheil to correct a mistake in an answer as to a matter of fact;'* 
 and it is not confined to cases of mistake only, but has been 
 extended to other analogous cases: as where a defendant, at the 
 time of i)utting in his original answer, was ignorant of a particular 
 circumstance, he has been permitted to introduce that circumstance 
 by supplemental answer,^ even though the information was ob- 
 tained by a violation of professional conlidence.* And where a 
 del'endant had wished to state a fact in his original answer, but 
 had been induced to leave it out by the mistaken advice of his 
 solicitor, he Mas allowed to state it by supplemental answer.^ 
 Again, where, subsecpiently to the filing of the answer, events had 
 occurred which the defendant was advised ought, for the ])uri)oses 
 of his defence, to appear on the record, he was allowed to state 
 them by means of a supplemental answer.® 
 
 Although the Court will, in cases of mistake, or other cases of 
 that dcscrii)tion, jicrmit a defendant to correct his answer by sup- 
 2)leniental ansAver, it always does so with great difficulty, where an 
 addition is to be put upon the record prejudicial to the plaintiff,'' 
 
 1 Per Lord Kli'.on, in Do'der v. Bank of 
 En<rl'n(l, 10 Ves. 285; and see .lenninj^s 
 V. .Merton Tollef;?, 8 Ve^. 79; Well< v. 
 Wo' d, 10 Ves. 401; Phelps v. Protlinro, 2 
 De G. & S. 274; 12 Jur. 733; see Uoweii 
 V. Cross, 4 .lolin. Ch. 375; VandTvere v. 
 Reaflins, 1 Stockt. (N. .1.) 446; 1 Harb. 
 Ch. Pr. 165, 166; Howe v. Uussell, 36 
 Maine, 124: Edwards v. M'Lear, 2 V. & 
 B. 256; 1 Smith Ch. Pr. (2d Am ed.) 270. 
 A sufiplemetital :ins\ver, to correct an error 
 in tlie orifrinal answer, will not be allowed 
 ext-ept with great c;iuti"n, and idways on 
 ef|nitable terms a« to costs and furnishing 
 copies gratis. Western Reserve B ink v. 
 Strvker, I Clarke, 380. When a supple- 
 mental answer is put in, the ol I answer 
 must remain (uifPeasit wasoriL'in:dly put 
 in. Murdock's Ciise, 2 Bland, 261 ; West- 
 ern He~erve Bmk v. S ryker, 1 Clirke, 
 3f0. All appliciiiion will not be enter- 
 tained to lile a supp!ement;d answer to 
 change the whole ground of defence set up 
 in the first answer. Mu'dock's Case, 2 
 Bland. 261; We-tern Reserve Hank v. 
 Striker, 1 Clarke, 380. The d.-fendant 
 will not be aUowed to amend his an-wer 
 alter the oiiinion of the Court, and the tes- 
 titnony have indicMt^d in what resnect it 
 may be m"ditied so as to effect his pur- 
 pose. Colloway r. Dobson. 1 Urock 119. 
 A defend mt is not allowed to file a supple- 
 mental answer for the purpose of setiiug 
 
 up an impnrfant fact, which has arisen 
 since the filing nf the orii.'inal answer. Ho 
 should file a bill in the mture of a supple- 
 mental bill. Tavlor V. Titus, 2 Edw. Ch. 
 135; Storv Ecp PI. § 903. 
 
 •■2 Strange v. Collins, 2 V. & B. 163, 167; 
 Ta\'lor V Obee, 3 Pri. 83; Ridlev v. Obee, 
 Wi'ghtw. 32; Swallow v. Diw, 2'(;oll. 133j 
 9 Jur. 805; Bell r. Dunmore*, 7 B-av. 283, 
 287; Coofier v. Ut!o.\eter Burial Boird, 1 
 H. & M. 680; Mouncei). Byars, 11 Geo, 
 180; Tillinsha-t v. Champliii, 4 R. I. 128. 
 
 3 .Jackson v. Parish, 1 Sim. 505, 509; 
 Tiilswell V. Bowver, 7 Sim. 64; see Const 
 V. Batr, 2 Mer. 57, 60; Fran viand v. Over- 
 en I, 9 Shn. 365; 2 .lur. 886; Fulton v. 
 Gilmore, 8 Beav. 154; 9 Jur. 1; 1 Phil. 
 522,528; 9 Jur. 265; Chadwick w. Turner, 
 34 L. J. Ch. 62, M. R. ; lalmage v. Pell, 
 9 Paige, 410; Suydam v. Truesdale, 6 Mc- 
 Lean. 459. 
 
 4 Raincock v. Young, 16 Sim. 122. 
 6 Nail V. Punter, 4 Sim. 474, 483. 
 
 6 StMtnp-i (). Birmingham & Stour Val- 
 ley Railway Comp 'ny, 2 Phil. 673. 677; 
 Anon., Hopk. 27 ; Sniith v. Smith, 4 Paige, 
 132. 
 
 7 Where the purpose of the amendment 
 is not to correct any mistake or misstate- 
 ment in the original answer, but to set up 
 sulistaiitially a tn'w ground of defence at 
 the hearin'j, it will not be permitted. Cam- 
 pion v. Kdle, 1 McCarter (N. J.),229, 232.
 
 AMENDING ANSWERS. SUPPLEMENTAL ANSTNT^RS. 
 
 781 
 
 though it will be inclined to yield to the application, if the object 
 is to remove out of the plaintiff's way the effect of a denial, or to 
 give him the benefit of a material admission.^ Therefore, where 
 the a])plication was made for the purpose of enabling the defend- 
 ant to raise the Statute of Limitations as a defence, leave to file 
 a supplemental answer was refused ; ^ and where the defendant 
 had, by his original answer to a bill for the specific performance of 
 a contract, admitted that he took possession of the whole property 
 in jmrsuance of the contract, but afterwards applied for leave to 
 put in a supplemental answer to limit the admission to part of the 
 premises only, upon affidavits of mistake, the motion was refused : 
 unless the defendant would state upon oath, that when he swore 
 to the original answer, he meant to swear in the sense in which 
 he, by the application, desired to be permitted to swear to it.^ 
 
 An application for leave to file a supplemental answer is made 
 upon motion or by summons.'* The summons or notice of motion 
 must be served on the plaintiff* and must specify the facts intended 
 to be stated in the proposed supplemental answer, and be sup- 
 ported by affidavit Aerifying the truth of the proposed supplemen- 
 tal answer, specifically stating the facts intended to be placed on 
 the record,* and showing a sufficient reason Avhy they were not 
 introduced into the original answer.® The defendant must also, 
 it seems, produce a full copy of the intended supplemental answer,'' 
 for the inspection of the plaintiff? 
 
 In making an application for leave to file a supplemental an- 
 swer, the defendant must also make a case, showing that justice 
 requires that he should be penuitted to alter the defence already 
 on record ; and even where a defendant applied for leave to file a 
 supplemental answer for the pui-jDose of making -an admission in 
 
 C. XVII. § 6. 
 
 1 Edwards v. M'Leay, 2 V. & B. 256. 
 Lord KIdon in this case, as well as in 
 Strange r. (,'ollins, ib. 1C6, appears to have 
 been of f)])iiii(in, t!i!it a siipplenientiil an- 
 swer ouglii not to have any efl'ect upon an 
 indcntic' t li.r | erjury upon the orijiinal 
 an-»er; but see Kiig i'. Carr, 1 Sul. 418; 
 2 Keb 010; see I'lielp- v. I'rolhero, 2 l)e 
 (;. & .Sni. 278; Swallow v. Day, 2 Coll. 
 133; riutfhes v. Ulnoiner. 7 Paijje", 2G9. 
 
 2 I'ercival v. Cane\', 14 Jur. 473, V. C. 
 K. 11. 
 
 3 l.ive^ey f. Wilson, 1 V. & B. 149; see 
 al-o Oeenwo'd r. Atkinson, 4 Sim. 04, 
 64; .Miirdoik's Ca.xe, 2 Hhnid, 401 ; Van- 
 dcrvcre V. Itcaling. 1 Slockt. (X. J.) 440. 
 A iletcu'iant will nor be allowed to file a 
 siipplenieniMl an-wcr contradicting: the 
 nt.itenicnts in the (ir.<itiin--wer. (Jreenwood 
 r. Alkin-on, 4 Sim. CI; see llioniiis v. 
 Vi.'it rs of Frederick Co School, 7 Gill & 
 .1. 3^«. 
 
 * Vi'T form« of no'ice of motion and snm- 
 moiiB, eee Vol. 111.; for Order or Suin- 
 
 nor to qualify 
 admission of 
 possession. 
 
 Application: 
 how made. 
 
 Evidence in 
 support. 
 
 A case for 
 altering de- 
 fence must be 
 shown. 
 
 mons see Bovill v. Clark, V. C. W., at 
 Chambers, 23 Nov., 186.5, Keg. Lib. A. 
 2221; and sf e Seton, 4.5. It s-eenis, how- 
 ever, from Churton v Frewen, L. li. 1 I'-q. 
 238, V. C K., that the application should 
 be made by mitinn ( rly. 
 
 6 Culling r. .Mar(|uis Townshend, 19 
 Ves. 628, 031; Smith v. Ilartlev. 5 15i av. 
 432; Ha.-Iarf. Uuilis2 Beav. 230; Fulton 
 V. Gilmore, 8 Beav. 154; 9 .Jtir. 1; 1 I'll 1. 
 522,527; 9 Jiir. 265. Wlure the npiilica- 
 tion is founded on docnmentaiy evK cnce, 
 it iiinst be produceil. Churton t). Frewen, 
 L. li. 1 Fq 238, V. C K. 
 
 Tennant v. Wilsmore, 2 Ar.st. 362; 
 Scott V. (Jurter, 1 Y. & J. 452; I'odmoie 
 V. Skipwith, 2 Sim. 565; Sniiillwood v. 
 Lew in, 2 Bea^ley (N. J ). 123; Smith 
 t". Babcock, 3 Sumner, 585 ; Van'.ervere v. 
 Kcalm;.'. 1 St'ckt. (N. J.) 446. 
 
 ' Bell r. Dm more, 7 Beav. 283; Fulton 
 V. Gilmoie, tibi sup. 
 
 8 Fulton t'. Gi.iuorc, vbi sup.
 
 '82 
 
 ANSWERS. 
 
 t\ Wll. 5t;. 
 
 Supple- 
 mental an- 
 swer must be 
 conlined to 
 the object 
 appliiHl lor. 
 
 Defendant 
 cannot con- 
 trovert facta 
 in his an- 
 swer, bv 
 cross-bill. 
 
 Within what 
 time applica- 
 tion must be 
 made. 
 
 Where plain- 
 tiff cannot be 
 placed in 
 same situa- 
 tion. 
 
 In what cases 
 the Court will 
 still permit an 
 answer to be 
 amended. 
 
 t'avor of the plaintitV, ui)on ;ui ailidavit that, from certain circuin- 
 stanoos wlucli had since occurrccl, he was satisfied he ought to 
 have admitted a fact which he liad denied,^ Lord Khh)ii held, tliat 
 the affidavit i>iight to have stated tliat, at the time of i)utting in 
 the answer, tlie ilefenihuit did not know tlie circumstances upon 
 which lie made the a})i)lication, or any other circumstances upon 
 wliich lie ought to have stated the fact otlierwise.- 
 
 AVhere a defendant has obtained pernussion to file a sup])le- 
 mental answer, for the i)urj)ose of correcting a mistake in his 
 original answer, he must confine his supplemental answer strictly 
 to the correction of the mistake sworn to. If he goes beyond 
 that, and makes any other alteration in the case than what arises 
 from the correction of such mistake, his supplemental answer will 
 be taken off the file.'' 
 
 Where a defendant has, at the time of putting in his original 
 ansW'cr, mistaken facts, hie cannot contravene his own admission in 
 any other way than by moving to correct his answ er, either by 
 amendment or su])pleniental answer. He cannot do so by filing a 
 cross-bill.* 
 
 There appears to be no particular limit to the time within which 
 an ap]>lication for leave to file a supplemental answer, to correct a 
 mistake in an original answer, will be complied with : provided the 
 cause is in such a state that the plaintiff may be placed in the same 
 situation that he would have been in, had the answer been correct 
 at first.^ Accordingly, we find several instances in the books in 
 "which such applications have been granted after replication,® and 
 even after the cause has been set down, and in the paper for hear- 
 ing.'' Where, however-, the plaintiff cannot be placed in the same 
 situation that he would have been in, had the defence been stated 
 on the record in due time, the Court wall not permit a supplemen- 
 tal answer to be filed. Therefore, where, after the cause had been 
 set dowm for hearing, an application w^as made for leave to file a 
 supplemental answer, which set up a totally new defence, while it 
 admitted the facts as stated in the original answer to be true, the 
 Court refused the motion with costs.* 
 
 But although the rule of practice now is, that, in cases of mis- 
 take in the statement or admissions in an answer, or in analogous 
 cases, the defendant will not be permitted to amend his answer, 
 
 1 The motion for leave to file a supple- 
 mental answer must be accompanied with 
 an affidavit. Thomas v. Doub, 1 Md. 262; 
 WcKim V. Thompson, 1 IJlaiid, 150. 
 
 2 Wells V. Wood, 10 Yes. 401. 
 
 3 Strange v. (,'ollins, 2 V. & U. 163, 167. 
 Berkley r. liydtr, 2 Ves. S. 5.33, 537 ; 
 
 Graham r. 'I'ankersley, 15 Ala. 634. 
 5 Martin v. Atkinson, 5 Geo. 390. 
 
 6 Jackson v. Parish, 1 Sim. 505, 509; 
 Raincock tJ. Young, 10 Sim. 122; Parsons 
 V. Hardy, 21 L. .1. Ch. 400, V. C. T. 
 
 7 Fulton V. Gilmore, 8 Beav. 154, 158; 
 9 Jur. 1; 1 Phil. 522,525,530; 9Jur. 265; 
 Chadwick v. Turner, 34 L. J. Ch. 62, 
 M. K. 
 
 8 Macdougal v. Purrier, 4Russ. 486; see 
 Smallwood v. Lewin, 2 Beasley (N. J.), 123.
 
 AMENDING ANSWERS. SUPPLEMENTAL ANSWERS. 783 
 
 but must ap2)ly for leaA^e to file a supplemental answer, for the C. XVii. 6. 
 purpose of correcting the mistake, the old course of amending the ^— v — — ^ 
 answer may still be pursued in cases of error or mistake in niat- 
 ters of form. Thus, in White v. Godbold,^ where the title of an 
 answer was defective, a motion by the defendant to take it olf the 
 file and amend and reswear it, was granted ; and so, where, in the 
 title of an answer, the name of the plaintiflT was mistaken, a similar 
 order was made.^ The addition of the name of a party omitted in 
 the title has also been permitted.^ Where, however, an answer 
 had been prepared for certain defendants, but only sworn to by 
 some of them, it was directed to be received as the ansAver of those 
 who had swoni it, without striking out the names of those who 
 had not.* A defendant has, also, been pennitted to add the sched- 
 ules referred to in his answer, where they had been accidentally 
 omitted ; * and in several cases, where verbal inaccuracies have 
 crept into answers, they have been ordered, at the hearing, to be 
 struck out.® In like manner, where, in filing an answer, one skin 
 had, by accident, been omitted, leave was given to the defendant 
 to take it off" the file, for the purpose of rectifying the omission, 
 upon condition, however, of his reswearing it immediately.'' A 
 similar order was made, in a case where the defendant had omitted 
 to sign some of the skins ; ^ and, in general, the Court will not per- 
 mit such amendments as those above mentioned, without making 
 it part of the order that the answer shall be resworn, or, in case ot 
 a peer, again attested upon honor.® The Court has also permitted 
 an answer to be amended, by adding to the record the name of the 
 counsel who signed the draft.^" 
 
 An order to amend an answer must state the particular amend- (_)r(icr to 
 ment to be made; and may, by consent, be obtained on petition, o|J"^"*^■^1^°^ 
 as of course, at the Ilolls." If the plaintiff will not consent, it 
 seems that a special application must be made to the Court, on 
 motion, of which notice must be given, specifying the j^i'oposed 
 amendment.^^ 
 
 1 1 Mad. 269; the order was, however, see Jesus College v. Gibbs, 1 Y. & C. Ex. 
 
 made by consent in this case. 145, 162. 
 
 ■^ Peacock v. Duke of IJedford, 1 V. & " drowning v. Sloman, 6 Law J. N. S. 
 
 B. 1^6; Woodger r. Crumpton, 1 Fowl. Ex. Kq. 48; 1 Jur. 68. 
 
 Ex. I'r. .388; Lloyd v. Mytton, ib. 389; 8 Lord Moncaster ». Braithwaite, 1 You. 
 
 Keen v Stanley, iOid. ; Kabljeth f. Squire, 382. 
 
 10 Hare Ap. 3'; but see Frv v. Mantell, 4 « Peacock v. Duke of Bedford, 1 V. & 
 
 Beav. 4H5; S. C. nom. i'ry v. Martel, B. 186. 
 
 6.1ur. 11'j4. 1" Harrison v. Delmont, 1 Pri. 108; 
 
 8 Wright V. Campbell, 1 Fowl. Ex. Pr. Wliit. Ii.ad v. Cunlifte, 2 Y. & C. Ex. 3; 
 
 889. and-, ]>. 733. 
 
 * Done f. Pvead, 2 V. & B. 310; and see 'i Braithwaite's Pr. 312; and see Wy- 
 Lyons r. ItcHii, Braithwaite'8 Pr. 61; see att'.^ P. 1{. 10; Ilinde, 206. For form of 
 also ante, p. 733. petition, see Vol. HI. 
 
 * Bryan y. Truman, 1 Fowl. Ex. Pr. 389. ''^ Attorncv-Cuiieral v. Corporation of 
 Ellis r. Saul, 1 Anst. 332,338,341; and Worcester, 2 Phil. 3; I C. P. Coop. I. Cott. 
 
 18. For form of notice, see Vol. IH.
 
 784 
 
 ANSWERS. 
 
 ('. XVII. § 
 
 Anu'iidiiu'iit : 
 how uuuk'. 
 
 Whon sup- 
 
 plemontal 
 
 answer 
 
 deomod 
 
 fiUlKciont, 
 
 The ninondinont Avill be mnde by tlio Clork of Records and 
 Writs, on tho dratl of tlio answer, as aiuoiubMl and signed by 
 eonnsel, together with tlie order to amend, being left with him for 
 that ])ur])t)se. Any oHii-ial ])rlnted copies of tlie answer Avhieli may 
 ha\e been taken sliould also l)e lett, in order that they may be 
 altered, so as to agree with the amended answer.^ 
 
 A supjilemental answer cannot be excepted to without leave ; so 
 that, tor the pui-pose of determining the time at whieli the defendant 
 may move to dismiss tlie bill, a sujjplemental answer is to be deemed, 
 2^1' imd facie., sufficient when it is liled.^ 
 
 Taking an- 
 swers oft" the 
 file for irreg- 
 ularity : 
 
 On the 
 
 application of 
 plaiutift"; 
 
 waiver ; 
 
 Section VII. — Taking Answers off the File. 
 
 If any irregularity lias occurred, either in the frame or form of 
 an a'nswer, or in the taking or tiling of it, the plaintifl'may take 
 advantage of such irregularity, by moving to take the answer oflf 
 the tile."'' Instances in which such motions maybe made liave been 
 beibre pointed out.* If, liowever, the plaintili" intends to apply to 
 the Court to take an answer off the file for irregularity, he must 
 do so before he accepts the answer : otherwise, he will have waived 
 his right to make the a])i)lication ; ^ unless in the case of an irreg- 
 
 1 Braithwiiite's Pr. 312. 
 
 2 Barnes V. Twed<lle, 10 Sim. 481, 483. 
 8 jM'e l.itt!ejolin v. Munn, 3 Paige, 280; 
 
 Supervisor-, bi.c v. jMi.ssi>;-i|ipi, &c. R. R. 
 Co, 21 111. 33^; Sp;vev v Frazce, 7 Ind. 
 C61 ; Mfl.ure r Colcloilgh, 17 Ala. 89. An 
 answer, t ken In^ toniinissioii, w.ll be taken 
 off the lile, if tlie jui-Ht dues not state 
 where it was swon. Menry v. Costel'.o, 1 
 llogan, 130. 'i'he answer of a foreigner, 
 who (h es not umlerstand English, niu.si be 
 swo'ii in ihe language he speaks, and be 
 tiled with an Kng ish transl itioii ; and if 
 he tiles an iv swer in Kiiglish only, it wHl 
 be taken <if the lile. llayes v. Lequiii, 1 
 Htigan, 274. But a mistake in ihe English 
 translation of an answer is no ground fur 
 tiik.ng it otf ttie (ile. Ibid. An answer 
 was taken oft' the lile for irregularity, one 
 skin only out (jf six skins having been 
 sign' d \i\ the deCeniiant. Lord Mot. cas- 
 ter V Biaithwaitc, 1 You. 382; Carter v. 
 Bosiiufiue', 13Pr.ce, 604; B;iile}' v. Forbes, 
 jrClel. & Y. 462. So where the an- 
 swer has not t)een signed at nil. Denison 
 f Basslord, 7 I'aige, 370. A bill amended 
 without leave w;is ordered to be, taken olf 
 the tile. Thomas r. Freder ck ("o. School, 
 7 Gill & .]. 36y. If the pla'ntiff waives an 
 an>wer on oatli, liecaMiot i'luily to have 
 it laken dO' the liles on the ground thit the 
 delenlanr knows it to I e whilly untrue. 
 iJi nisnn n. Ba-sford, 7 Paige, yyi). In a 
 .'uit :.eainst hu-hand sinil uiCe, the liling 
 ol a se| iiiate answer by the husban<l, was 
 held irregular, -Mhi no act ot waiver on the 
 
 part of the plaintiff nppearing, tlie Court 
 held that it must be tfiken fff the tile. 
 I.eavitt V. Cruger et ux. 1 Puije, 422; Col- 
 laid V. Smith, 2 Beasl^sy (N. J ), 43; ante, 
 754, note. For other case-* where an an- 
 swer will be taken from the lilts, see Fer- 
 ine r. Swaine, 1 John. Ch. 24; Trumbull 
 V (iibbon-, Hal-t. Dig. 172; Nesbitt v. 
 Dellam, 7 (iill & J. 4'J4; Fidton U.mk 
 V. Beacli, 6 Wend. 36; New York Cliem. 
 Co. V. Flowers, 6 P;dge, 654. An applica- 
 tion to tidvc an answer olf the lile, in order 
 to prosecute for perjury, is made to the dis- 
 cretion ol the Court, ami will not be "ranted 
 unless some groinul is laiil to enable tho 
 Court to jud^e of the propriety ol such a 
 proceeding. Dalv v. I oole, 1 Iri-h Eq. 
 344; S. C. 2 I)ru.'& AVal 5U9. The Court 
 will not allow an answer to be taken otf the 
 file for this purpose, if it appear, that the 
 alleged perjury is in a pnrt wholly iuima- 
 terinl to the merits of the case M'Gowan 
 V. Hall, Haves, 17; .see Napier v Nupier, 
 1 liidi Eq.414; S. C. 2 \)ru. & Wal. 604. 
 
 4 AnU, pp 731, 733, 748, 753, 771; and 
 see Fry «. iMatjtell, 4 Benv. 485; S C. nom. 
 Frv V Mariel, 5 ,lur. 1194; Haisirirk v. 
 F:isworlh, 12 .lur. 782, V. C. K B.; Liver- 
 pool V. Chijipendal, 14 Jur. 301, V. C. K. 
 
 '' Taking an oilice copy of the answer, 
 does not seem to be an aecepiance lor this 
 pu pose. Fry v. Mantel!, ^lb^ sup. ; ami see 
 WoO'lward n. Twinaine. 9 Sim. 3oi ; Attor- 
 .nev-General v. Shield, 11 Beav. 441, 445; 
 13' Jur. 330.
 
 TAKING ANSWERS OFF THE FILE. 
 
 785 
 
 ularity in the jurat, or of an omission of the oath or attestation of 
 honor of the defendant, without an order to warrant such omission : 
 in which cases, as Ave have seen, there must be an express waiver 
 of the irregularity.^ 
 
 The Court has sometimes also, as before stated,^ allowed an an- 
 swer to be taken oflf the tile on an application on the part of the 
 defendant, for the purpose of enabling him to correct a mistake in 
 its form ; but it does so only, as we have seen, upon condition that 
 the defendant shall immediately cause the correction to be made, 
 and reswear and file the answer ; and it will never make such an 
 order where the plaintiff can be at all prejudiced by it. 
 
 Where an answer is evidently, on the face of it, evasive, the 
 Court will order it to be taken off the file, and not leave the plain- 
 tiff to his remedy by exceptions.^ 
 
 The appUcation to take an evasive answer off the file is made by 
 motion, of which notice must be given to the defendant.* The 
 defendant mil be ordered to pay the costs of the motion, and the 
 costs of an office co]iy of the document filed as the answer, and all 
 other costs properly incurred by the plaintiff in consequence of 
 the filing of the evasive answer.^ The plaintiff cannot apply to 
 take the answer off the file after he has excepted to it for insuf- 
 ficiency.® 
 
 Lastly, it may be here observed, that the Court will, upon the 
 consent of all parties, order pleadings, affidavits, and other docu- 
 ments to be taken off the file, where they contain matter which 
 is scandalous, or which it is desirable should not remain recorded.'^ 
 
 C. XYII. § 7 . 
 
 On the 
 
 application of 
 (letendant. 
 
 Evasive 
 
 answer 
 ordered off 
 the lile. 
 
 Application : 
 how made. 
 
 Pleadings, 
 &c., may be 
 ordered off 
 the file, by 
 consent. 
 
 1 Ante, p. 748; see Trumbull v. Gib- 
 bons, 1 Haist. l)i^. 172; Nesbitt v. Dellam, 
 7 Gill & J. 494; Scott t'. AUett, 1 Hogau, 
 375. 
 
 2 Ante, p. 732. 
 
 8 Lvnch V. Lecesne, 1 Hare, 626, 631 ; 7 
 Jur. 35; Read v. Barton, 3 K. & J. 166; 
 3 Jur. N. S. 263; see also Tomkin v. Leth- 
 bridge, 9 Ves. 179 ; Smith v. Serle, 14 Ves. 
 415; Brooks v. I'urton, 1 Y. & (J. C. 0. 
 278; see contra, .Marsh v. Hunter, 3 Mad. 
 437; W'hite v. Howard, 2 De G. & S. 223. 
 If tin answer is s-o evasive that it is obvi- 
 ously a mere delusion, — if tliere is no an- 
 swer to any ot the material tacts stated in 
 the bill, and no reason assigned for not 
 answering them, — it will be considered as 
 no answer, and the Court will order it to 
 be taken from the tile. If, on the other 
 hand, it be an answer, however defective, 
 the plaintifl must either file exceptions or 
 
 a replication, or set down the cause for 
 hearing upon bill and answer. Travers v. 
 Ross, 1 McCarter (N. J.), 254; see Finan- 
 cial Corporation v. Bristol & North Somer- 
 set Railway Co., L. R, 3 Eq. 422. 
 ^ For form of notice, see Vol. III. 
 
 5 Read v. Barton, 3 K. & J. 166; 3 Jur. 
 N. S. 263; Financial Corporation ». Bris- 
 tol »fe North Somerset Railway Co., L. R. 
 3 hq. 422. 
 
 6 Glassington v. Thwaites, 2 Riiss. 458, 
 462; Seaton i'. Grant, L. R. 2 Cli. Ap. 459. 
 
 " Tiemaine v. Tremaine, 1 Vcrn. 189; 
 Walton V. Broadbent, 3 Hare, 334: Jewin 
 r. I'aylor, 6 Beav. 120; Clifton v. Bentall, 
 9 Beav. 105; Barritt v. Tidswell, 7 \V. R. 
 85, V. C. K. ; Jlakepeace v. Romieux, 8 
 W. R. 687, V. C. K. ; see also Goddard v. 
 Parr, 24 L. J. Ch. 783, V. C. K.; Kernick 
 V. Kernick, 12 W. R. 335, V. C. VV. 
 
 50
 
 7 SI) 
 
 ANSWERS. 
 
 ('. XVII. §s. 
 
 Section VITL — 7'^roni ir/taf 7\'>ne Answer deemed sufficient. 
 
 Answor 
 
 tlot'IIU'll 
 
 priiiid f'iU'if, 
 surtu'iont on 
 tiliiii;. 
 
 When it 
 iHH'omos so 
 absolutely: 
 
 when? no 
 
 exceptions 
 
 tiled, 
 
 or set down, 
 
 or old 
 
 exceptions 
 not set down. 
 
 Vacations 
 not included. 
 
 From what 
 time answer 
 deemed 
 sutlicient if 
 excepted to. 
 
 The aii.^iwiM- of :i (U'llMulnnt is, ooiu'vally, treated ns being siif- 
 ileient \intil it is Ibuiid io be iiisutlieii'iit ; ^ and it will be deemed 
 to be sntHeient, — 
 
 1. AVhei-e no exeejjtions for insutKeiency arc filed thereto, within 
 six weeks after the filing of such answer.- 
 
 2. Where, exceptions being filed, the plaintiflT does not set them 
 down for hearing within fourteen days after tlie filing thereof.'' 
 
 o. Where, within fonrteeu days after the filing of a further an- 
 swer, the plaintift'does not set down the old exceptions.* 
 
 Vie have before seen, that the vacations are not reckoned in the 
 computation of the time allowed for filing or setting down excep- 
 tions, in cases where the time is not limited by notice given by the 
 defendant in a case of election ; ^ so that, in computing the above- 
 mentioned periods, the vacations are not included. 
 
 Where, upon the hearing of exceptions, the answer is held 
 sufficient, it will be deemed to be so from the date of the order 
 made on the hearing : and where the defendant submits to answer 
 without an order Irom the Court, the answer will be deemed in- 
 sufficient from the date of the submission.^ 
 
 It is important to fix with precision when an answer is to be 
 deemed sufficient, because as we shall see hereafter, in treating of 
 motions to dismiss,'' the date of the sufficiency of the answer con- 
 stitutes the point of time from which is to be reckoned the period, 
 at the expiration of which a motion to dismiss the bill for want of 
 prosecution may be made.* 
 
 1 Sibbald v. Lowrie, 2 K. & J. 277, n. ; 
 Lafone v. Falkland Islands Company, ib. 
 277. 
 
 2 See 61st Equity Rule of the United 
 States Courts, and ttie 17th of the Rules of 
 Practice in Chancery in Massachusetts; 
 ante, p. 7C5, note. 
 
 3 See 63d Equity Rule of the United 
 States Courts. 
 
 4 Ord. XVI. 16. 
 
 5 Ord.XXXVn.13 (2); XLII. 6; ante, 
 p. 768. 
 
 6 Ord. XVI. 18. 
 
 '^ iieeposi, p. 801 et seq. 
 8 For the manner of computing the 
 several periods, see ante, p. 786.
 
 CHAPTER XVIII. 
 
 THE JOINDER OF SEVERAL DEFENCES. 
 
 All or any of the several modes of defence before enumerated What de- 
 may be joined in the defence to a bill ; ^ thus, a defendant may de- ^T^oined*^ 
 mur to one part of the bill, plead to another, answer to another, 
 and disclaim as to another.^ A defendant may also, as we have 
 seen, put in separate and distinct demurrers, to separate and dis- 
 tinct parts of the same bill ; ' he may also plead different matters, 
 to separate parts of the same bill.* When the species of defence is 
 adopted, the same rules which have been before laid down with 
 reference to each mode of defence when adopted singly, must be 
 observed when the same modes of defence are resorted to collec- 
 tively. Lord Redesdale lays it down, that "all these defences 
 must clearly refer to separate and distinct parts of the bill ; for a 
 defendant cannot plead to that part to which he has already de- P?^^^ *^^ ^^^ 
 murred, neither can he answer to any part to which he has either 
 demurred or pleaded : the demun-er demanding the judgment of 
 the Court whether he shall make any answer, and the plea, 
 whether he shall make any other answer than what is contained 
 in the plea. Nor can the defendant, by answer, claim what, by 
 disclaimer, he has declared he has no right to. A plea or answer ^ 
 will, therefore, overrule a demurrer,® and an answer a plea,'^ and 
 
 Each must, 
 formerly, 
 have referred, 
 to separate 
 
 1 Provided each relates to a separate 
 and distinct part of the bill. Mitford Eq. 
 PI. bv .Jeremy, IOC, 319; Living.ston v. 
 Storj'", 9 Peters, 623; Lube Eq. PI. 319; 
 Clark V. Phelps, 6 John. Ch. 214; Beau- 
 champ V. Gil)t)9, 1 Bibb, 481; Robertson r. 
 Binglev, 1 M'Cord Ch. 352. 
 
 •■i Ld". Red. 319; Rule 10 of Mass. Chan- 
 cery Practice; Rule 6, Maine (]h. Prac- 
 tice. By the 32(1 Equity Rule of the 
 United States Courts, the defendant may, 
 at any time before tlie l>ill is taken as con- 
 fessed, or afterwards with the leave of the 
 Court, demur or plead to the whole bill, or 
 ta part of it; and he may demur to part, 
 plead to part, and aii'.wer as to the residue. 
 Or the defendiint, in Massachusetts, may, 
 instead of filinf^ a formal demurrer or plea, 
 insist on. any speci:il iiiaitcr in his answer, 
 and have the same benefit thereof as if he 
 had pleaded the same, or demurred to the 
 
 bill. Rule 14, Chancery Practice, Mass. 
 So in Maine, the defendant may have the 
 benefit of a plea by inserting its substance 
 in his answer. Rule 6, Chancery Practice ; 
 see 39tli Equity Rule of the United States 
 Courts ; ante, pp. 589, 590, note ; Hartshorn 
 V. Eames, 31 jlaine, 97; Smith v. Kellev, 
 56 Maiue, 64, 65. 
 
 8 Ante, p. 584. 
 
 * Ante, p. 610. 
 
 5 See Bolton v. Gardner, 3 Paige, 273. 
 
 " See Spofibrd v. Manning, 6 Paige, 383; 
 Clark V. Phelps, 6 John. Ch. 214; Miller 
 V. Purse, 1 Bailev E(|. 187; H. K. (.'base's 
 Case, 1 Bland, 217; Souzer v. De Meyer, 2 
 Paige, 574 ; R ibertson v. Binglev, 1 M'Cord 
 Ch. 352; Rule 10 of the Reg. of Prac. 
 in Chanc. in Mass ; and 23d Equity Rule 
 of the United States Courts. 
 
 7 15olton V. t;ar(lner,3 l'aigc,273; IL K. 
 Chase's Case, 1 Bland, 217 j Souzer v. Do
 
 788 
 
 JOINDER OP SEVERAL DEFENCES. 
 
 C. XVIII. 
 
 »— — > 
 
 but rule siiii' 
 
 Where now 
 applicjiblo. 
 
 ■Ktle. 
 
 it" a ilisclaiiiu'r and aiiswiT aro inconsistent tlic mat ti-r will bo taken 
 most strongly aijainst the deloudaiit ui)ou the disclaimer.''' ^ 
 
 The striet apj)lieation of these ))rinei|)les lias, as we have seen, 
 heen relaxed; and now, no deinnrrer or ])lea "will be held bad and 
 overrnled on arguinent, only beeanse siu-h demnrrer or ])lea does 
 not eover so miu-h of the bill as it might by law have extended to, 
 or only because the answer of the defendant extends to some i»art 
 of the same matter as is covered by such dennirrer or plea.*^ 
 
 In all cases not coming strictly within these rules, the i^rinciples 
 above quoted from Lord Kedesdale still apply; and, in addition 
 thereto, it is to be remarked that, where a «lefendant a(loi)ts this 
 mode of defence, not only should each defence in words be ai)pli- 
 cable to the distinct part of the bill to which it professes to a])ply, 
 but that it should also, in substance, relate peculiarly to that part of 
 the bill which it professes to cover ; so that a defence in Avords a]»j>li- 
 cable to part of a bill only, but in reality applicable to the whole l>ill, 
 is not good, and cannot stand, in conjunction with another distinct 
 defence applicable and applied to another distinct part of the bill.^ 
 Where, therefore, a defendant, put in a joint demurrer and plea, 
 each of -which went to the whole bill, the <lemurrer was overruled ; * 
 and Avhere a defendant, as to j^art of a bill, put in a j^lea that there 
 was no outstanding term, and a demurrer as to the rest on the 
 ground that the plaintiff had no title. Lord Langdale M. K., 
 although he held the plea to be good, was of oj)inion that the de- 
 murrer being applicable to the whole bill, and consequently to that 
 part of it which was covered by the plea, was bad.^ 
 
 When a demurrer is to part only of the bill, and is accompanied 
 by an ansAver or other defence to the remaindei', it should be en- 
 titled " The demurrer of A. B ,, the above-named defendant, to 
 part of the bill, and the answer of the said defendant to the re- 
 mainder of the bill of complaint of the above-named plaintiff." '^ The 
 same rule is applicable to cases where the defence is partly by plea, 
 and partly by answer ; excejjt in those cases where the answer is 
 
 Mej-er, 2 Paige, 574; Ferguson v. O'Harra, 
 1 Peters C C 4.03 ; Leaycraftv. Dempsej', 
 4 Paige, 124; Stearns r. Page, 1 Stor3',204. 
 In Maine, " demurrers, pleas, and answers 
 "will be decided on their own merits, and 
 one will not be regarded as overruling an- 
 other." Kule G of Chancery Practice, 37 
 Maine, 583. 
 
 By the rules in Chancery cases iu Maine, 
 defendants may severally demur and an- 
 swer to the merits of the bill at the same 
 time. Smith v. Kelley, 56 Maine, 64, 65. 
 In this case the defendants each put in a 
 demurrer, and at the same time answered 
 to the wh'jle bill, and the demurrers were 
 sustained. See also Hartshorn v. Earaes, 
 31 .Maine, 97. 
 
 1 Ld. Red. 319. 
 
 2 Ord. XIV. 8, 9; nwfe, pp. 584, 585, 617. 
 These orders have been adopted in the 36th 
 and 37th Equity Rules of the Supreme 
 Court of the LFnited States, January Terra, 
 1842. ^ 
 
 3 Crouch V. Hickin, 1 Keen, 385, 389. 
 
 4 Lowndes v. Garnett and Moselev Gold 
 Mining Company, 2 J. & H. 282; 8 Jur. N. 
 S. 694 ; see also Munsell v. Eeency, 2 J. & 
 H. 313. 
 
 5 Crouch V. Hickin, ubl sup. His Lord- 
 ship, however, allowed a demurrer ore te- 
 nus, for want of etpiitj', to that part of the 
 bill which was not covered I)}' the plea. 
 
 6 Tomlinson v. Swinnertoii, 1 Keen, 9 
 13; Braithwaite's Pr. 43.
 
 JOIXDER OF SEVERAL DEFENCES. 
 
 789 
 
 in support of the plea; for then, the plea and answer form but one 
 defence, and the title is properly " The Plea and AnsM-er." ^ 
 
 Where a defence of this nature has been put in, the first thino- 
 is to dispose of the demurrer, and also of the plea, if there is one 
 (unless it is intended to admit that it is a valid defence, if true), 
 and for this purpose, the demurrer and plea must be set down for 
 arfTument in the usual way.- The plaintiff must, however, be care- 
 ful not to amend his bill, or except to the answer for insufficiency, 
 before the demm-rer and plea have been disposed of: other^\ise, 
 they will be held sufficient.^ 
 
 If, upon the argument, the demurrer and plea are, or either of 
 them is, overruled, the plaintifl* may deliver excejDtions for insuffi- 
 ciency, extending not only to the answer, but to the parts of the 
 bill which were intended to be covered by the demun-er and plea ; 
 but if the deniiu'rer and plea are, or either of them is, allowed, the 
 exceptions must not extend to the parts of the bill covered by 
 them.* The pi'oper course to be pursued, where a partial demur- 
 rer has been allowed to a bill, appears to be, to amend the bill, 
 either by striking out the part demurred to, or by making such 
 alteration in the bill as will obviate the ground of demurrer. 
 Thus, after a partial demiirrer, ore temis, for want of parties, has 
 been allowed, the bill may be amended by adding the neces- 
 sary parties, or stating them to be out of the jurisdiction of the 
 Court; and it seems that such an amendment will ngt ])reclude 
 the plaintiff from excepting to the answer to those parts of the 
 bill wliich are not covered by the demurrer.^ 
 
 After a plea has been allowed, no amendment of the bill can be 
 made without a special order of the Court ; and in applying for 
 such order, the plaintiff must specify the amendments he intends 
 to make.® After the allowance of the plea, the plaintiff must reply 
 to the plea as well as to the answer, and proceed with the case in 
 the usual manner. 
 
 1 ^n<e, p. 682. If an answer commences 
 as an answer to the whole bill, it overrules 
 a plea or demurrer to any particular part 
 of the bill, althoiifjli such part is not in fact 
 answereii. Lcayeraft v. DenipHcy, 4 Paige, 
 124; Summers v. Murray, 2 tdw. Ch. 205. 
 
 2 Ante, pp. .004, 693. 
 
 8 AnU, pp. 594, 691, 760. 
 < Ante, p. 700. 
 
 6 Taylor v. Bailev, 3 M. & C. 677, 683 ; 
 3 Jur. 308; Foster v. Fisher, 4 Law J., N. 
 S. 237, M. R. In Osborne v. .lullion, 3 
 Drew. 596, 609, the Court, on allowin;^ a 
 demurrer, refused leave to amei.d the bill. 
 
 G Ante, pp. 419, 699; Tavlor v. Slmw. 2 
 S. & S. 12 ; Neck v. Gains" 1 Dc G. & S. 
 223; llJur. 763. 
 
 c. xvni. 
 
 Of setting 
 do^^^l de- 
 murrer and 
 plea. 
 
 Exceptions to 
 answer, after 
 demurrer or 
 plea ovei^ 
 ruled, 
 
 or allowed. 
 
 Amendment 
 
 of bill, after 
 
 partial 
 
 demurrer 
 
 allowed. 
 
 After plea 
 allowed, 
 application 
 to amend is 
 special. 
 
 Replication, 
 after plea 
 allowed.
 
 CHAPTER XIX. 
 
 DISMISSING BILLS, OTHERAVISE THAN AT THE HEARING, 
 AND STAYING PROCEEDINGS. 
 
 Section I. — Generally. 
 
 Before 
 appearance, 
 plaintiff may 
 dismiss bill, 
 witiiout costs, 
 on motion or 
 petition of 
 course. 
 
 After appear- 
 ance, plaintiff 
 may, in like 
 manner dis- 
 miss bill on 
 payment of 
 costs, or by 
 consent 
 -without ; 
 
 unless the 
 defendant has 
 obtained a 
 right against 
 the plaintiff. 
 
 . Before a defendant has apjieared to the bill, the plaintiff may 
 dismiss the bill, as against him, without costs : on an order to be 
 obtained upon motion of course, or upon petition of course, at the 
 Rolls.^ Where, however, such an order was obtained in breach 
 of foith of a compromise entered into with the defendant, it was 
 discharged with costs.^ 
 
 After aj^jiearance, and before decree, the plaintiff may, generally, 
 obtain an order to dismiss the bill, but only upon payment of 
 costs : ^ unless the parties against whom it is dismissed consent to 
 its being dismissed without costs.^ The order may be obtained 
 either on petition of course or motion,^ and if the defendant's 
 consent is required, it is signified by the appearance of counsel on 
 his behalf on the motion, or by his solicitor subscribing his con- 
 sent to the prayer of the petition. The application is usually 
 made by petition.^ Where, however, there has been any proceed- 
 ing in the cause which has given the defendant a right against the 
 plaintiff, the plaintiff cannot dismiss his bill as of course ; thus, 
 Avhere a general demurrer had been overruled on argument, Lord 
 Cottenham was of opinion that the plaintiff could not dismiss his 
 bill as of course : the defendant having a right to apjjeal against 
 
 1 Thompson v. Thompson, 7 Beav. 350; 
 Wyatt's Pr. 60, 61; Braithwaite's Pr. 566. 
 For form of order, see Seton, 1277, No. 1; 
 and for forms of motion paper and petition, 
 see Vol. III. 
 
 •■2 Bettsr.l5arton,3.Jur.N.S.154,V.C.W. 
 
 8 The plaintiff cannot dismiss his bill, as 
 to part of the relief prayed, and proceed 
 with the residue; he must apply to aniend. 
 The Camden & Amboy li.K. Co. x\ Stew- 
 art, 4 C. E. Green (N. J.). 69; see New 
 Jersey Rule in Chancen*, f)4. 
 
 * Dixon V. Parks, 1 Yes. J. 402; Wyatt's 
 Pr. 01 ; Braithwaite's Pr. 560. The«e" rules 
 also apply where the plaintiff is suing on 
 
 behalf of himself and others. Handford v. 
 Storie, 2 S. & S. 196, 198; Armstrongs. 
 Storer, 9 Beav. 277, 281; ante, p. 239, 240. 
 But a bill will not be dismissed "" without 
 prejudice," when the plaintiff has had 
 ample opportunity to hunt up his testi- 
 mony, and prepare his case on the merits. 
 Kuml)ly V. Staint'in. 24 Ala. 712; .see 
 Rochester v. Lee, 1 M'N. & G. 467,469, 470. 
 
 6 But a bill will not be dismissed upon a 
 mere suggestion. Wiswell v. Starr, 50 
 Maine, 381, 384. 
 
 For form of order, see Seton, 1277, 
 Nos. 1,2; and for forms of motion paper 
 and petition, see Vol. III.
 
 GENERALLY. 
 
 791 
 
 the order overruling the demurrer : which riglit he ought not to 
 be deprived of, on an ex parte application.^ 
 
 It seems once to have been the jjrivilege of the plaintiif to dismiss 
 his bill, when the defendant had answered, upon payment of '10s. 
 costs ; - but that rule was altered ; * and the Statute of Anne has 
 since enacted,'* that, upon the plaintiff's dismissing his own bill, or 
 the defendant's dismissing the same for want of prosecution, the 
 plaintiff in such suit shall pay to the defendant or defendants his 
 or then- full costs, to be taxed by the Master.^ It seems, formerly, 
 to have been considered, that the Court had no power to make an 
 order, on the application of the plaintiff, dismissing the bill with- 
 out costs, except upon the defendant's consent actually given in 
 Court.® It has now, however, been decided, that the Court has 
 power to make such an order in a proper case ; and such orders 
 have been made : where the defendant surrendered a lease, to 
 obtain an assignment of which the bill was filed, and absconded : '' 
 where the bill was filed under a mistake, under which both plain- 
 tiffs and defendants were at the time : ® where the defendants had 
 assigned their interests to co-defendants, after the bill was filed, 
 and had joined in an answer with such other defendants and dis- 
 claimed : ^ where the suit was rendered nugatory by the subse- 
 quent passing of an Act of Parliament, or by the reversal of a 
 case on the authority of which the bill was filed, or by any subse- 
 quent matter : ^'* and where the plaintiff had been misled by the 
 act of the Court." 
 
 The application to dismiss, in these cases, is usually made by 
 special motion, of which notice must be served on the defendants, 
 or such of them as are affected by the motion.^^ 
 
 1 Cooper t'. Lewis, 2 Phil. 178, 181; and 
 Pee Ainslie v. Sims, 17 Beav. 174; see also 
 Booth v. Leycester, 1 Ki'en, 247, 255, 
 where a bill and cross-b;ll had been set 
 doivn to be heard together. 
 
 2 (iilb. For. Rom. 110; 2 Atk. 288. 
 
 8 Anon., 1 Vern. 116; Anon., ib. 334. 
 
 < 4 & 5 Anne, c. 16, § 23. 
 
 5 The plaintiff .seems to have been liable, 
 notwithstanding the statute, to the pay- 
 ment of only 40«. costs where the cause 
 was set down and dismi.<soil on hill and an- 
 swer; see Newsha'n r. (Ji-av, 2 .\tk. 288; 
 but by (J(?n(TMl Onier of 27^1 April, 1748, 
 tA. 28y; Sand. Ord. 628, it is pruvidtMl, that, 
 in such a case, the Court may dismiss the 
 bill, either with 40ji. costs, or with taxed 
 costs, or without costs. This Order ap- 
 pear*, in this respect, to be abrogated by 
 the Cons. Ord. 
 
 8 Di.Koii r I'arks, 1 Ves. .1. 402; Anon., 
 Uj. 140; Fidelle v. Kvans. 1 Hro. C.C. 267; 
 1 Cox. 27; Kisher r. Quick, 1 Stockt. (N. 
 J.) 312 
 
 7 Knox V. Brown, 2 I5ro. C. C. 186; 1 
 Cox, 35y; and see (ioodday v. Sleigh, l.Iur. 
 
 N. S. 201; 3 W. R. 87, V. C. S.; Wripht 
 V. Barlow, 5 De G & S. 43; 15 .lur. 1149. 
 8 Broughton v. Lashmar, 5 31. & C. 136, 
 144. 
 
 ■' Hawkins v. Gardiner, 17 Jur. 780, V. 
 C S. 
 
 1* Sutton Harbour Companv r. Hitchens, 
 15 Beav. 161; 1 De G , .M. &" G. 161, 169; 
 and see ib 16 Beav. 381; Robinson v. Ro- 
 sher, 1 Y. & C. C. C. 7, 12; 5 .Jur. 1006; 
 but see South Staffor.lshire Railway Com- 
 pany V. Hull. L6,Jur. 160, V. C- K.;"L;inca- 
 shire and Yorkshire RaiUvay Conipaiiv 
 r. Kvaiis, 14 Heav. 529 ; Ventilation and 
 Sanitary Improvement Company v. E<lel- 
 ston, 11 U'. U. 613, V. C. S.; Klsev v. Ad- 
 ams. 10 Jur. N. S. 459; 12 VV."R. 586, 
 L. .J.I.; 2 De G, J. & S. 147; Rilev «. 
 Cr(T>'don, 10 Jur. N. S. 1251; 13 W. R. 233, 
 V. 0. K. 
 
 11 Lister )-. Leather, 1 De G. k J. 361 ; 3 
 .Jur. N. S 848. But not where the object 
 of the suit has been defeated by the plain- 
 tifl''s own act or n'-ociireuuMit. Ilauimers- 
 ley ij. IJirkcr, 2 I'aige, 372. 
 1- For form of notice, see Vol. III. 
 
 C. XIX. § 1. 
 
 Costs payable 
 by plaintiff, 
 on dismissal. 
 
 As to dis- 
 missing bill 
 without costs, 
 on special 
 application of 
 plaintiff; 
 
 has been 
 done, 
 where de- 
 fendant by 
 his o^vn act, 
 rendered suit 
 useless ; 
 where bill 
 filed under 
 mutual 
 mistake; 
 where de- 
 fendants 
 assigned 
 after bill 
 filed; 
 where, by 
 subsequent 
 Act or de- 
 cision, suit 
 rendered 
 useless ; 
 where plain- 
 tiif misled by 
 act of the 
 Court. 
 Special 
 application 
 to dismi.ss: 
 how made.
 
 '9-2 
 
 DISMISSING BILLS, AND STAYING PROCEEDINGS. 
 
 r. XIX. 5 1. 
 
 Whoro hill 
 liiis ho en 
 dismissed for 
 want ol' 
 prosecution 
 iiijainst sonio 
 ilolendants, 
 jilaiiititVean- 
 not dismiss it 
 without costs, 
 as aifaiust 
 othei-s. 
 Whether 
 jilaintiil' may 
 dismiss 
 against some 
 delbndauts 
 with costs, 
 without 
 j)rejudice to 
 ((uestion how 
 costs should 
 ultimately he 
 home. 
 
 Where plain- 
 tiff sues in 
 J'orind 
 pauj)€ris. 
 
 Where plaiii- 
 titl" disavows 
 suit. 
 
 Where one 
 of several 
 co-plaintiffs 
 desires to 
 dismiss. 
 
 Plaintiff may 
 apply to dis- 
 miss hill, at 
 any time be- 
 fore decree. 
 
 "NVlioiT, howovrr, tlio m;il(oi-s in (lisj)iite liavc been disposed of 
 by an independent proceeding, bnt the bill has been dismissed for 
 want of proseention, with costs, as against some of the defendants, 
 the j>laintitf can no longer move to dismiss it, as against the 
 others, withont et)sts : the Coiu-t not being able to adjudicate as 
 to the costs, in the absence of the dismissed ])arties, Avho might bo 
 ]»reiiidiced by the other defendants being entitled to add their 
 costs to their secnrities, or otherwise. In siieh a case, the bill can 
 only be dismissed with costs.^ 
 
 Where the plaintiff moved to dismiss the bill with costs against 
 some of the defendants who had disclaimed, withont j^rcyudice to 
 the question by whom the costs should ultimately be borne, it was 
 held by Sir James Wigram V. C. tliat the order might be made 
 without serving the other dclendants, as they could not l)e prtyu- 
 diced ; - but Sir J. L. Knight Bruce V. C. refused to make such 
 an order, unless the other defendants were served.* 
 
 Where the plaintiff has been admitted to sue in forma pauperis^ 
 he may move to dismiss his bill without costs : except in cases in 
 Avhich his iidmission in fonnd pauperis has taken j)lace subse- 
 qently to the tiling of the bill ; ■* but the motion must not be made 
 ex parte!' 
 
 The course of proceeding to obtain the dismissal of the bill by 
 a plaintiff Avho disavows the stiit, has been before pointed out.*' 
 Where the suit is not disavowed, one co-plaintiff may, with the 
 consent of the defendant, dismiss a bill with costs, so far as con- 
 cerns himself, if it will not in any way injure the other plaintiffs : 
 otherwise, the Court will refuse the order, unless upon terms so 
 framed as to protect the other plaintiffs in the suit from injury.'' 
 The mere circumstance that the rights of the plaintiff ajjjjlying to 
 be dismissed are concurrent with those of the plaintiffs who I'e- 
 main, will not be a sufficient reason for refusing the application : 
 since any defect which his withdrawal may make in the record 
 may be supplied by making him a defendant, by amendment.^ 
 
 A i)laintiff may, in general, obtain an order to dismiss his own 
 bill, with costs, as a matter of course, at any time before decree. 
 
 1 Troward v. Attwood, 27 Beav. 85. 
 
 2 Builv V. Laml)ert, o Hare, 178; 10 Jur. 
 109; and see Collis X). Collis, 14 L. J. Ch. 
 56, V. C. K. B.; Styles v. Shipton, 3 Kq. 
 Hep. 224, V. C. VV. Similar orders made 
 on ex partt motion in Clements w. Clifford, 
 11 Jur. N. S. 851; 14 W. It. 22, V. C. K. ; 
 Berndston v. Churchill, 1 W. N. 8, V. 
 C. W. 
 
 8 Wigginon v. Pateman, 12 Jur. 89. 
 
 * Ante, p. 42. 
 
 8 IbitL; Parkinsonv. Hanbury, 4 DeG., 
 M. & G. 508; and see Wilkinson v. Bel- 
 sher, 2 IJro. C. C. 272. Where an executor 
 or administrator has commenced a wrong 
 
 suit by mistake, or has ascertained that it 
 would be useless to proceed, in consequence 
 of f.icts subsequently discovered, ho will be 
 permitted to discontitme without payment 
 of costs. Arnoux v. Steinbrenner, 1 i'aige, 
 82. 
 
 6 Ante, p. 807. 
 
 7 Holkirk V. Holkirk, 4 Mad. 50; Win- 
 throp V. Murray, 7 Hare, 152; 13 Jur. 955; 
 and see ante, p. 30'J; but see Laiigdale 
 V. Langdale, 13 Ves. 1(57; see Muldrow v. 
 Du Bose, 2 Hill Ch. 375, 377; Bank v. 
 Kose, 1 Ricli. Ch. 292. 
 
 8 Holkirk V. Holkirk, vbi sup.
 
 GENERALLY. 
 
 793 
 
 and notwithstanding a pending motion which has been ordered to 
 stand over.^ Thus, in Curtis v. Lloyd^ after the cause had been 
 called on for hearing, and had stood over at the request of counsel, 
 the plaintiff obtained, as of coin-se, an order to dismiss his bill with 
 costs; the defendant afterwards objected to this course; but Lord 
 Cottenham held, that the plaintiff was entitled to the order : ob- 
 serving, that he could not see why a plaintiff should be in a worse 
 situation, because he informs the Court that he. does not intend to 
 proceed with the hearing of his cause, than if he made default. 
 
 If, however, the plaintiiJ^ after the cause is set doAvn to be heard, 
 causes the bill to be dismissed on his own appUcatiou, such dis- 
 missal is, unless the Court otherwise directs, equivalent to a dis- 
 missal on the merits, and may be pleaded in bar to another suit for 
 the same matter."^ 
 
 After a decree, or decretal order,^ however, the Court will not 
 suffer a plaintiff to dismiss his own bill, unless upon consent : for 
 all parties are interested in a decree, and any party may take such, 
 steps as he may be advised to have the effect of it.^ The proper 
 form of order after decree is not to dismiss the bill, but to stay all 
 further proceedings.*' If, however, the decree merely directs accounts 
 and inquiries,'' in order to enable the Court to determine what is 
 to be done, the bill may be dismissed.^ And where, upon the 
 hearing of the cause, the Court has merely directed an issue, the 
 plaintiff may, before trial of the issue, obtain an order to dismiss 
 the bill with costs : because the directing of an issue is only to 
 satisfy the conscience of the Court, prefatory to its giving judg- 
 ment. If, however, the issue has been tried, and determined in 
 
 V. Brett, 2 V. & B. 377 ; Bluck v. Colnadii, 
 9 Sim. 411 ; Collins v. Greaves, 5 Hare, 596; 
 Gregory r. Spencer, 11 Beav. 143. 
 
 5 Guilbert v. Hawles, 1 Cha. Ca. 40; 
 Carrington v. lioll}', 1 Dick. 2S0. 
 
 ^ Kgg V. Devev, 11 Beav. 221; see also 
 Lashley v. Hogg, 11 Ves. G02; Bluck v. 
 Colnaghi, 9 Sim. 411; Handfbrd v. Storie, 
 2 S. & S. 190, 198. 
 
 7 Barton v. Barton, 3 K. & J. 512 ; 3 Jur. 
 N. S. 808. 
 
 8 Anon., 11 Ves. 169; Barton v. Barton, 
 iM sup.; and see post, pp. SIO, 811; see 
 Clarkson v. Scrogins, 2 Monr. 52. After 
 an order to account, and report made, the 
 plaintifi" cannot dismiss on paj-ment of 
 costs. Betliia v. IM'Kmv, Cheves Cli. Ca. 
 93; see also Hall «. Mcl'lierson, 3 Bland, 
 529; but see Bassard v. Lester, 2 IM'Cord 
 Ch. 42f. A bill by trustees to marshnl as- 
 sets and call in creditors, at'ter a decree 
 made directing money to be pnid, and 
 creditors' claims established, ■will not bo 
 dismissed at the instance of one of the 
 j)iaintirts, his co-pliiintin' and the creditors 
 objecting. Muldrow v. Un Bosc, 2 Hill Ch. 
 37'o, 377 ; see Jones v. Lansing, 7 Taige, 
 583. 
 
 C. XIX. § 1. 
 
 Dismissal, 
 after cause 
 set down, 
 may be 
 pleaded to 
 another suit. 
 
 PlaintiflT can- 
 not, after 
 decree, dis- 
 miss bill, 
 unless by 
 consent ; 
 but further 
 proceedings 
 may be 
 stayed, 
 exceptions to 
 rule. 
 
 1 ifarkwiek v. Pawson, 33 L. J. Ch. 703 ; 
 4 N. 11. 528, L. .1.1. It is a matter of course 
 to permit tlie phiintitf to dismiss the bill at 
 any time before decree, upon payment of 
 costs, but the onler for sucli leave is con- 
 ditional, and the suit not absolutely dis- 
 continued so as to authorize the tiling a 
 new bdl, till the costs of the first suit are 
 paid. Cummins r. Bennett, 8 I'aige, 79; 
 see Thomas v. Thomsis, 3 Litt. 9; Bassard 
 V. Lester, 2 M'Cord Ch. 421; Smith v. 
 Smith, 2 Blackf. 232: Simpson r. Brew- 
 ster, 9 I'aige, 245; Klderkin v. Fitch, 2 
 Carter (Fnrl.), 90; Mason v. York & Cum- 
 berland li.K. Co., 52 Maine, 82, 107. After 
 a voluntary dismis>ial of a bdl by the 
 plaintiff, he will not be allowed to rein- 
 state it. Orphan Asylum v. Mc(Jartec, 1 
 Hopk. 372. In N(-w Jersey, by Uulo 
 of Chancery, when a replication has been 
 fileil, and the taking of proofs begun 
 by eith<;r party, the plaintiff sIihII not be 
 ailowcfl to dismiss Ins bill, except upon 
 special motion and notice to the defendants. 
 Ilnle 94; 2 McCarter. 5.33. 
 
 2 4 M. & Vj. 194; 2 Jur. 1058. 
 
 3 (ird. X.VIII. 13. 
 < Voil, 800; Anon., 11 Ves. 1G9; Discoo
 
 794 
 
 DISMISSING BILLS, AND STAYING TROCEEDINGS. 
 
 0. XIX. § 1. 
 
 ■VNTicn? bill 
 caiinot be 
 dismissed 
 even by eon- 
 sent, arter 
 deeive. 
 
 Application 
 by defendant 
 to dismiss or 
 stay, on sub- 
 mitting to 
 satisfs' plain- 
 tifi's" de- 
 mand, and 
 pay costs ; 
 
 what the 
 
 costs include. 
 
 Application 
 by one of 
 several 
 defendants. 
 
 tavor of tlio (U'ti'inlant, the |ilaintilV t'annot move to disiiiiss : be- 
 cause the tlefoiulaiit may lia\i' it set doM n on the Equity reserved, 
 in order to obtain a I'ormal dismissal ot" tlu' bill, so as to enrol it as 
 a iinal judgment, and thereby make it ])leadabK'.^ 
 
 Atler a decree has been made of such a kind that other persons, 
 besides the partii's on the record, are interested in the prosecution 
 of it, neither the |ilaintill" nor defendant, on the consent of the 
 other, can obtain an order for the dismissal of the bill." Thus, 
 where a ]tlaintilf sues on behalf of himself and all other j)ersons 
 of the same class: alt lu)uiih lie acts uj)on liis own mere motion, 
 and retains the absolute ilominion of the suit until the decree, and 
 may dismiss the bill at his pleasure, yet, after a decree, he cannot 
 by his condiu't de])rive other persons of the same class of the bene- 
 fit of the decree, if they think lit to prosecute it. " The reason of 
 the distinction is, that, before decree, no other person of the class 
 is bound to rely upon the diligence of him who has first instituted 
 his suit, but may file a bill of liis own ; and that, after a decree, no 
 second suit is permitted." ^ 
 
 AVhere a defendant submits to the whole, demand of the plain- 
 tift', and to pay the costs, he has a right to apply to the Court to 
 dismiss the bill, or stay all further proceedings.^ The application 
 is usually made on motion, of which notice must be given.'' The 
 Court will not, on sitch an application, go into the merits of the 
 case ; but will only consider the conduct of the parties in conduct- 
 ing the cause. It will not, therefore, entertain such an application, 
 unless the defendant submits to pay the costs, as well as comply 
 with all the plaintiff's demands : ^ though it has, in some cases, de- 
 termined the question whether particular costs, incurred in pro- 
 ceedings collateral to the suit, are to be paid by the defendant.'' 
 The costs of suit which the defendant must submit to pay, include 
 the costs of co-defendants, for which the plaintiff is liable.^ 
 
 Where there are several defendants, and the plaintiff claims only 
 part of the relief against one defendant, that defendant may apply, 
 by special motion, to stay all further proceedings, on satisfying the 
 
 1 Carrington v. Holly, I Dick. 280. 
 
 2 Updike V. Dovle, 7 R. I. 446, 462. 
 
 8 Ilnndford i% Storie, 2 S. & S. 196, 
 198; York v. White, 10 .Jur. 1C8, M. K., 
 ante, p. 239; and see post, p. 795; Up- 
 dike V. Doyle, 7 R. I. 446, 462; Collins 
 V. Taylor, 3 Green Cli. 163; William- 
 son V. Wilson, 1 Bland, 418 ; Waring 
 V. Robinson, Hoff. Ch. 524, 529, 530 ; 
 Muldrow V. Du Bose, 2 Hill Ch. 875, 377; 
 Jones V. Lansing, 7 I'aige, 583; Shewen v. 
 Vanderhorst, 2 K. & M. 75; Atlas Biink v. 
 Nahaot B:mk, 23 Pick. 480 ; Mass: St. 1862, 
 c. 21>*, § 8; ante, p. 239, and cases in note. 
 
 * Per Lord L'.ingdale in Sivell v. Abra- 
 ham, 8 Beav. 599; see also Pemberton v. 
 Topham, 1 Beav. 316; 2 Jur. 1009; Hol- 
 
 den V. Kynaston, 2 Beav. 204, 206 ; Field 
 V. Robinson, 7 Beav. 66; Hennet v. Luard, 
 12 Beav. 479; Danier «. J>ord Portariing- 
 ton, 2 Phil. 30, 35; 1 C P. Coop. t. Cott. 
 229, 234; 10 Jur. 673; Manton v. Roe, 14 
 Sim. 353; Pavuter ». Carew, Kay Ap. 36; 
 18 Jur. 417; Orton v. Bainbrigge, 22 L. J. 
 Ch. 979; 1 W. R. 487, M. R. 
 
 '' For form of notice, see Vol. III. 
 
 6 Wallis V. Wallis, 4 Drew. 458; Hennet 
 V. Luard, nbi sup. ; see, however, Holden 
 V. Kvnaston, ubi sup. 
 
 7 Penny v. Beavan,7 Hare, 133; 12 Jur. 
 936. 
 
 8 Pemberton v. Topham, and Paynter v. 
 Carew, ubi sup.
 
 GENERALLY. 
 
 795 
 
 whole demand made against him, and paying the plaintiff's costs 
 incurred up to the time of making the application.^ 
 
 In a foreclosure or redemption suit, the bill may be dismissed on 
 the special motion of a subsequent incumbrancer, as against all the 
 defendants except himself, on his paying into Court, by a specified 
 day, a sum sufficient to cover the mortgage debt and interest, and 
 the costs of the plaintiff and other defendants.^ Where discovery 
 is sought from the defendant, the plaintiff is entitled to continue 
 his suit for that purpose ; and an a})plication by the defendant be- 
 fore answer to stay proceedings, upon his submission to the plain- 
 tiff's demand and payment of the costs of the suit, is premature, 
 and will not be entertained.^ 
 
 The defendant may also, by submitting to pay the plaintiff's de- 
 mands, and his costs of the suit, obtain an order to stay the pro- 
 ceedings, under a decree in which other persons are interested, as 
 well as the parties to the suit ; but, in such a case, any one of the 
 persons so interested may subsequently, on special motion or sum- 
 mons,^ with notice to the parties to the cause, obtain an order that 
 the applicant may have either the conduct of the cause, or liberty 
 to carry on the proceedings under the decree, or the jirosecution 
 of particular accounts or inquiries.*^ 
 
 Orders to stay proceedings, on the ground that the defendant 
 has submitted to the plaintiff's demands, have also been made on 
 the application of the plaintiff, hostilely to the defendant ; ^ but it 
 seems that the defendant has a right to have the cause brought to 
 a hearing, for the purpose of determining the question of costs ; 
 and that such an application by the j^laintiff can, therefore, only be 
 made by consent.^ Where the question in dispute has been settled 
 by compromise out of Court, without providing for the costs, the 
 Court will not detennine the question of costs, either on motion or 
 at the hearinfj.* 
 
 C. XIX. § 1. 
 
 If required, 
 defendant 
 must give 
 discover\-. 
 
 Staj'ing class 
 suit, after 
 decree. 
 
 On applica- 
 tion of 
 plaintiff; 
 
 only by 
 consent. 
 
 1 SawA-er v. Mills, 1 M'N. & G. 390, 395 ; 
 13 Jur. 1061 ; see also Holdeii v. Kynaston, 
 vhi gup. For form of notice of motion, see 
 Vol. III. 
 
 2 Jones V. Tinney, Kay Ap. 45; Chal- 
 lie V. G Wynne, ib. 4tj, where the forms of 
 the orders are given ; see also I'aynter v. 
 Carcw, ib. 30; 18 .Jur. 417; and I'aine v. 
 Edwards. 8 Jur. N. S. 1200, 1202: 10 AV. 
 K. 700, V. C- iS., where the motion was 
 refused, the prinriti'-s beinj; in dispute; 
 Wainwright v. Seweil, 11 W. U. 560, V. C. 
 S. For i'orms of tiotico, see Vol. III. 
 
 « Stevens v. Hrett, 12 \V. U. 572,V. C. W . 
 
 * 15 & 10 Vic. c. 80, § 26. For forms of 
 notice of motion iinrl summons, see Vol. III. 
 
 6 See Salter ». Tihle^iev, 13 \V. U. 370, 
 M. U.; see also nnle, pp. 239, 240, 7!t4. 
 
 » Nichols r. Klford, 5 Jur. N. S. 204, V. 
 C. W.; North V. (In'ut Western liailway 
 Co., 2 (iifl'. 04; 6 Jur. N. S. 244; 'Ihomi)- 
 
 son V. Knight, 7 Jur. N. S. 704; 9 W. 
 R. 780, V. C. W.; Brooksbank v. Hig- 
 ginbottom, 31 I$eav. 35 ; and see Sivell v. 
 Abraham, 8 15eav. 598 ; Hennet v.' Luard, 
 12 lieav. 479, 480. 
 
 7 Langliam v. Great Northern Railway 
 Company, 16 Sim. 173; 12 Jur. 574; lUir- 
 gess V. Hills, 20 Beav. 244, 249; 5 Jur. N. 
 S. 233; I'.urgess n Hatelv, 20 IJeav. 249; 
 M'Nau^'hlan 1'. Ilasker, 12 Jur. 956, V. C. 
 K. 15.; Wilde v. Wilde, 10 W. li. 503, L. 
 J.I.; i\h)rgan v. Grent Eastern ISnilway 
 ('omi)any, 1 II. & M. 78; and see Chester 
 V. Metropolitan Kailwav Companv, 11 Jur. 
 N. S. 214, iM. i;.; 13 \V. It. 333;" Hudson 
 ?'. Bennett, 12 Jur. N.S. 519; 14 \V.I{.911, 
 V. C. .S. 
 
 8 (iil)son V. Lord Crnnlev, 6 Mnd. 365; 
 Roberts >\ IJcberts, 1 S. & S. 39; Whailev 
 V. Lord Sntiiolcl, 12 Meav. 402; Nicliols v. 
 Elford, 5 Jur. N. S. 264, V. C. W.
 
 796 
 
 DISMISSING BILLS, AM) STAYING mOCEEDINGS. 
 
 C. XIX. § 1. 
 
 r>y i.'i>ii!<iiit, 
 suit may Ik- 
 (lismi>si'il (ir 
 stayed, »ii 
 spcfial terms 
 finliixlioil ill 
 the order. 
 
 Staying 
 proi'oodinfcs 
 until costs in 
 tbrmer suit 
 piiid ; 
 
 dismissal of 
 second bill, 
 on default. 
 
 Exceptions 
 where both 
 suits are not 
 for the same 
 matter. 
 
 Similar rule, 
 in the case of 
 abandoned 
 proceedings. 
 
 Amount of 
 costs should 
 be first ascer- 
 tained. 
 
 By t'onsoiit, the bill luny l)c disiuisst'd or the procoedings stayed, 
 on motion of course, or jutilion ttfeourse at tlie Ivolls, or on special 
 motion or petition,^ or on summons, on any terms wliieli may be 
 aureeil n])on ; - and where an ag'reement to dismiss a bill was en- 
 ti'red into at tbo trial of an action directed to bo brou<>;ht, and 
 made a rnh' of tlu^ OMirt of LaAV, tlie Court of Chancery enforced 
 it ati'ainst tlu' parties, on motion in the cause.'' Where any of the 
 parlies are not ,^i(i Jim' f^, or are executors or trustees, the Court 
 must be satistied of the propriety of the agreement.'* 
 
 Where a plaintilf has made default in payment of the costs of a 
 former suit against the same defendant, or the person whom he 
 represents, for the same purpose, the defendant may obtain an 
 order, on motion, Avith notice to tlie ydaintifF, staying all further 
 proceedings until the plaintiff has paid such costs ; ^ and where, 
 after great delay, the costs still continue unpaid, the Court will 
 order the plaintiff to pay them within a limited time, or, in default, 
 that the second bill stand dismissed.'' Where, however, the two 
 suits are not for the same matter, and the second bill could not be 
 produced by a fair amendment of the first,, such an order will be 
 refused ; '' nor can it be obtained, where the plaintiff sues by his 
 next friend ; * nor, it seems, where the defendant has taken any 
 step in the new cause, before making the application.^ 
 
 Where the same object may be attained under two different 
 modes of proceeding : if the first is adopted, and then abandoned 
 and the second adopted, the proceedings in the second may be 
 stayed until the costs of the first are paid." It would seem that 
 the amount of the costs should be ascertained by taxation or other- 
 wdse, before the application to stay proceedings, is made.^^ 
 
 1 Where the terms are complicated, or a 
 fund in Court is dealt with, the application 
 is usually made on special petition. See 
 Winthrop r. AViiithrop, 1 C. 1'. Coop. t. 
 Cott. 201 ; IJichardson v. Evton, 2 De G., 
 M. & G. 79 ; Harrison v. Laiie, 2 Sm. & G. 
 249; Dawson?'. Newsome, 2 Gift". 272; 6 
 Jur. N. S. 625; jmsI, Chap. XXXV., § 1, 
 IntertocuUiry Applications ; or on summonsi 
 
 2 See North v. Great Western Itailvvay 
 Company, 2 Giff. 64; Troward !'. Attwood, 
 27 IJeav. 85. For forms of motion paper, 
 notice of motion, petition, and summons, 
 see Vol. III. 
 
 3 Tebbutt r. Potter, 4 Hare, 164 ; see 
 also Warwick v. Cox, 9 Hare Ap. 14 ; 
 Dasvson v. Newsome, ubi suj). ; see, how- 
 ever. Askew ». MiUiiigton, 9 Hare, 65; 15 
 Jur. 5.32. 
 
 * Warwick v. Cox, ubi sup. ; and see 
 Lippiat V. Holley. 1 Beav. 42.3; Seton,6yi. 
 
 s Pickett V. J.oprgan, 5 Ves. 706 ; Altree 
 V. Hordern. 5 Beav. 623, 628; 7 .Jur. 247; 
 Lautourr; Ilolcombe, 10 Beav. 2.56; Spires 
 r. Sewell, 5 Sim. 193; (Jnge v. Trueiock, 2 
 Moll. 41; Long v. Storie, 13 Jur. 1091, V. 
 
 C. E.; Sprye v. Ileynell, 1 De G., M. & G. 
 712 ; Ernest v. Partridge, 8 L. T. N. S. 762, 
 V. C. W.; see, however. Wild v. Hobsou, 
 2 V. & B. 105, 108; see Cummins v. Ben- 
 nett, 8 Paige, 79; Kathbone v. Eckford, 
 cited 1 Hoff. Ch. Pr. 328, n. (1); Simpson 
 V. Brewster, 9 Paige, 245. The a]jplication 
 should not be made until the amount of 
 the costs has been ascertained by taxation. 
 Ernest v. Partridge, ubi sup. For form of 
 notice of motion, see Vol. HI. 
 
 6 Princess of Wales v. Lord Liverpool, 3 
 Swanst. 567 ; Latitour v. Holcombe, 11 
 Beav. 624; Ernest v. Govett, 2 N. R. 486, 
 V. C W. For form of notice of motion, 
 see Vol; HI. 
 
 7 Budge V. Budge, 12 Beav. 385, 387. 
 
 8 Hind V. Whitmore, 2 K. & J. 458. 
 '■> Onge V. Trueiock, 2 Moll. 4t. 
 
 I'' Folev w. Smith, 12 Beav. 1.04; Davey 
 V. Uurraiit, 24 Beav. 411; 4 Jur. N. S. 398; 
 2 De (i. & J. 506 ; see also Oldfield v. Cob- 
 bett, 12 Beav. 01, 95. 
 
 11 Ernest v. Partridge, 8 L. T. N. S. 762, 
 V. C. W. ; and see Foley v. Smith, 12 
 lieav. 154 ; Davey v. Durrant, 24 Beav.
 
 GENERALLY. 
 
 797 
 
 Where a plaintiff is in contempt for non-papnent of costs in the 
 suit, an order to stay proceedings until the costs have been paid 
 may be obtained on special motion ; ^ and where he has failed to 
 give security for costs pursuant to an order, the defendant may ob- 
 tain, on motion with notice, an order that he give security within 
 a limited time, or the bill be dismissed." 
 
 There are also several cases in which, where there are two suits 
 relating to the same subject-matter, the Coiirt will, under certain 
 circumstances, make an order staying the proceedings in one of 
 them.^ Thus, as we have seen, where two or more suits are insti- 
 tuted in the name of an infant by different persons, each acting as 
 his next fi-iend, the Court, on being satisfied by an inquiry, or 
 otherwise, which suit is most for his benefit, will stay the proceed- 
 ings in the other suit.* So, also, where two suits are instituted, 
 for the administration of an estate : when the decree has been ob- 
 tained in one suit, jiroceedings will be stayed in the other. 
 
 Where the second suit embraces an object not provided for in 
 the decree pronounced in the first suit, the jn-oceedings in the 
 second suit will not be stayed : ^ as for instance, where the decree 
 is made in a creditors' suit, and a bill is filed by a legatee.^ But 
 even in this case, it is often desirable to obtain a transfer and 
 amalgamation of the two suits.'^ Where the second suit prayed 
 additional relief, the Court stayed proceedings in it, on the parties 
 to the first suit undertaking to introduce into the decree in that 
 suit, the additional relief which might be obtained in the second 
 suit.* In another case, the Court stayed proceedings in the second 
 
 illy, by whom the motion was made, and 
 the Chaucellor (Lord Eldon) speak of tlie 
 practice as a finiiiliar one. In reference to 
 this power of a Court of Ef|uity to consoli- 
 date actions, Chancellor Green said: "It 
 seems to me to be a power over the conduct 
 of suitors, restinfj upon the clearest prin- 
 ciples, and absolutely essential to prevent 
 scandalous abuses, and to protect defend- 
 ants against gross oppression." 1 C. E. 
 Green, 312. 
 
 4 Ante, pp. 69, 70. 
 • 5 Underwood v. Jee, ubi svp. ; Mcnzies 
 V. Connor, 3 M'N. & G. C48, 6.52; Anson 
 V. Towgood, 6 Mad. 874 ; Pickford i'. Hun- 
 ter. 5 Sim. 122, 129 ; Ladbroke i-. Sloanc, 
 3 l)e G. & S. 291; Smith v! (iuy,tibi sup. ; 
 Hump f. (ireenhill,20 Beav. 512; l.Iur. N. 
 S. 123; Whittington v. Edwards, 3 l)e G. 
 & J. 243; Taylor v. Southgate, 4 M. c^ C. 
 203, 20». 
 
 G Colder v. Colder, 9 Hare. 276; Earl of 
 I'ortarlington r. l)amer, 2 Phil. 262; I'lun- 
 kctt V. Lewis, J 1 Sim. 379. 
 
 ^ See Cumming v. Slater, 1 Y. & C. C 
 C. 484 ; Godfrey v. Maw, ib. 485 ; I'otl v. 
 Gallini, 1 S. & S. 206, 209; Budgen t'. 
 Sapc, 3 M. &; C. 683, 687. 
 
 « Gwyer r. i'eterson, 26 Heav. 83; Mat- 
 thews V. Palmer, 11 W. U. 010, V. C. K. 
 
 C. XIX. § 1. 
 
 Staying 
 proceedings, 
 where plain- 
 tift" in con- 
 tempt for 
 non-payment 
 of costs ; or 
 where secu- 
 rity for costs 
 not given, 
 though 
 ordered. 
 "Where two 
 suits relate to 
 the same 
 matter : 
 Infant ; 
 Administra- 
 tion. 
 
 Where the 
 objects of the 
 two suits are 
 not identical. 
 
 411; 4 Jur. N. S. 398; Altree v. Hordern, 
 5 Beav. 623, 628; 7 Jur. 247; Spires v. 
 Sewell, 5 Sim. 193; Long r. Storie, 13 Jur. 
 1091, V. C. E. 
 
 1 Bradburv r. Sliawe, 14 Jur. 1042, V. 
 0. K. B.; Wilson r. Bates, 3 M. & C 197, 
 204; 9 Sim. 54; 2 Jur. 107, 319; Eutvove 
 r. Kennard, 2 Giff. 533; 7 Jur. N. S. 958; 
 and see Wild v. Hobson, 4 Mad. 49; cited 
 3 M. & C. 202. For form of notice of mo- 
 tion, see Vol. III. 
 
 2 Kennedy v. Edwards, 11 Jur. N. S. 
 153, V. C. W. For form of notice, see 
 Vol. III. 
 
 3 Smith V. Guy, 2 C. P. Coop. t. Cott. 
 289, 296; 2 Plnl. 159; liigbv r. Sfrang- 
 •ways. 2Phil. 175. 177; lOJur.'ooS; Under- 
 wood r. Jee, I MN. & G.276; 17 Sim. 119; 
 15 Jur. 99; and see Setoii, 889: It is 
 within the power of a Court of Equity to 
 consolidate actions, with or without the 
 consent of the plaintids. linrnham r. Dal- 
 ling, 1 C. E. (ireen (X. J.), 310. Chancel- 
 lor Green, in the above case, having 
 remarked that " books of Equity Practice 
 are silent on the subject," cited, among 
 others, the case of Keighlej' v. Brown. 16 
 Ve«. 344, in which a motion was made on 
 the part of the def-Mirlants to consolidate 
 Beveral actions, and both Sir Samuel Itom-
 
 798 
 
 DISMISSING BILLS, AND STAYING PROCEEDINGS. 
 
 r. XIX. § 1. 
 
 Who may 
 apply to stay 
 concurrent 
 suit. 
 
 Residuan-'s 
 suit prcft'iTed 
 to executor's 
 suit. 
 
 Staving suit 
 in High 
 Court, after 
 decree in 
 Duchy Court. 
 
 Mode of 
 
 obtaining 
 
 order to stay 
 
 concurrent 
 
 suit. 
 
 Transfer 
 
 necessar}-, 
 
 when suits in 
 
 different 
 
 branches of 
 
 the Court. 
 
 suit, only so far as Ihc rrliof soiiolit could l)i' obtained in Iho first 
 suit ; ' and recontly, tlio Court, on the parties eonsentina; that an 
 immediate deeree sliould be made in the seeond suit, ordered the 
 two suits to be eonsolidjited, and decreed the further relief which 
 could be obtaineil in the second suit ;- but where, after a, ])ill had 
 been filed by one executor aL!;ainst his co-executor for administra- 
 tion, and asking special relief, but, before decree, the latter obtained, 
 on summons, an order against the former to administer the same 
 estate, the Court refused to discharge the order." Where a decree 
 has been made in botli suits, the Court will direct the adminis- 
 tration to i)roceed in that branch of the Com-t in which the decree 
 is in the most perfect state, notwithstanding that it may be posterior 
 in point of date.* 
 
 It is the duty of the personal representative to make tlie ajipli- 
 cation, as soon as a decree lias been made in one suit;"* but if he 
 neglects to do so, the j)laintifi^" in the suit in which the decree has 
 been made," or any person interested,'^ may obtain the order : 
 althougli he is not a party to the other suit. 
 
 Where two suits for the administration of the same estate, one 
 by the executor, and the other by the residuary legatee, come on 
 together, the j^roceedings in the executor's suit will be stayed, and 
 the decree made in the residuary legatee's suit.* 
 
 Where an administration decree has been obtained in the Court 
 of the Duchy of Lancaster, a suit for the same purpose in the 
 Court of Chancery will be stayed, if the wliole subject-matter is 
 wdthin the jurisdiction of the Duchy Court, but not otherwise.^ 
 
 Where the concurrent suits are in different branches of the 
 Court, a difference of opinion prevailed with reference to the 
 Judge by whom the order staying jiroceedings should be made ; ^^ 
 but the practice now adopted is : to obtain from the Lord Chan- 
 cellor, or Lords Justices, on special motion, with notice to the 
 other parties to the suits,^^ an order transfemng the cause in which 
 it is desired to stay further proceedings, to the Judge who has 
 pronounced the decree ; and then to obtain from him an order, 
 
 P. Coop. t. Cott. 
 
 1 Drvden v. Foster, 6 Beav. 146. 
 
 2 Hoskiris V. Campbell, 2 H. & M. 43. 
 8 Vanrenen v. Piffard, 13 W. li. 425, 
 
 V. C. S.; sed qu. if the plaintiff in the 
 summons suit was entitled so to sue; see 
 15 & 16 Vic. c. 80, § 45. 
 
 * Littlewood v. Collins, 11 W. R. 387, 
 L.J J. 
 
 5 Therry v. Henderson, 1 Y. & C. C. C. 
 481, 483; 6 Jur. 386; Stead r. Stead. 2 C. 
 P. Coop. t. Cott. 311; Pavkwood v. Mad- 
 dison, 1 S. & S. 232, 234; 2 C. P. Coop. t. 
 Cott. 312. 
 
 6 Earl of Portarlington v. Darner, 2 
 Phil. 202; and see Swale v. Swale, 22 
 Beav. 401. 
 
 7 Smith V. Guy, 2 C. 
 289 297. 
 
 s'Kelic V. Archer, 16 Jur. 605, M. R.; 
 and Miller v. Powell, V. C. K. B , 14 July, 
 1849, there referred to. 
 
 '•* Wynne v. Hughes, 26 Beav. 377; 5 
 Jur. N. S. 165; and see 26 Beav. 384 n.; 
 28 L. J. Ch. 485, L. JJ.; see also Seton, 
 88] ; Bradley v. Stelfox, 1 N. R. 221, 
 L. C. 
 
 10 Whiter. Johnson, 2 Phil. 689; Lad- 
 brooke v. Bleadon, 15 Beav. 457 ; 16 Jur. 
 851; Scotto V. Stone, 17 Jur. 588, V. 
 C. K. 
 
 11 Bond V. Barnes, 2 De G., F. & J. 387; 
 and see ante, pp. 70, n. 398. For form 
 of notice of motion, see Vol. HI.
 
 GENERALLY. 
 
 799 
 
 entitled in both causes, staying further proceedings in the trans- 
 ferred cause, and providing for the costs.^ The order to stay 
 may be obtained on special motion, or, where the decree is in 
 prosecution at Chambers, on special summons ; and notice of the 
 motion, or the summons, must be served on all parties to each 
 cause.^ 
 
 Where such an order is made, the ■ costs of all parties to the 
 second suit who are parties to the first suit, up to notice of the 
 decree, are usually made costs in that suit, and the costs of any 
 party who is not a party to the first suit, are ordered to be paid by 
 the executor, and added to his own.^ If the executor has no assets 
 to pay them, liberty will be given such party to go in and prove 
 for them in the first suit.* 
 
 *-If the plaintifi" in the second suit proceed, after notice of the 
 decree in the first suit, he will not be allowed the costs of such 
 subsequent proceedings ; but he will not be made to pay costs.® 
 Where, however, the Court considered that the second suit was 
 improperly instituted, the plahitiif in it was ordered to pay the 
 costs of the order of transfer, and of the motion to stay pro- 
 ceedings.® 
 
 The rule, that when two suits are instituted for the administra- 
 tion of the same estate, that shall be prosecuted in which the 
 earlier decree has been obtained, does not apply when it has not 
 been obtained fairly ; and the Court held this to have been the 
 case where, on the same day on which notice had been given to 
 an executor to appear to an administration summons, he appeared 
 of his own accord at an earlier hour in the Chambers of another 
 Judge, and consented to an order on a summons then, and not 
 previously, ap])lied for, by another plaintift7 But the Court, by 
 consent, made an immediate decree in a cause not in the paper, for 
 administration of the real and personal estate of an intestate, at 
 the suit of a creditor, after a summons in Chambers for the admin- 
 istration of the personal estate had been taken out by another 
 creditor, and which was returnable before the first day on which 
 the cause could be heard as a short cause.* 
 
 Where the suit in which the decree was made was instituted by 
 
 1- Duffort V. Arrowsmith, 7 De G., M. & 
 G. 434; Harris v. Gandy, 1 DeG., F. & J. 
 13; Swale v. Swale, 22 Ueav. 401; and 
 see ante, pp. 70, .398. 
 
 2 For form of order, see Seton, 887 ; nnd 
 for forms of notice of motion and sum- 
 mons, see Vol. III. 
 
 8 Seton. 688; Golder v. Golder, 9 Hare, 
 276, 279; West v. Swinburne, 14 .Jur. .300, 
 V. (J. K. It. ; and .see Tlierry v. Hender- 
 son, 1 Y. & ('. (J. (,'. 481, 48.3; I) .lur. 3H0; 
 Frowd V. I'.akcr, 4 lieav. 70, 78; Little- 
 wood V. Collins, 11 W. K. 387, L. JJ.; and 
 see form of order, Seton, 887. 
 
 C. XIX. § 1. 
 
 4 Canban v. Neale, 26 Beav. 2C6 ; 5 ,Tur. 
 N. S. 52; Ladbroke v. Sloane, 3 De G. & 
 S. 2!)1; West)'. Swinburne, «W stip. ; see 
 form oC order, Seton, 887. 
 
 "^ Karl 'of I'ortarlington v. Damer, 2 
 Phil. 202; and see Seton, 888. 
 
 Salter v. Tildesley, 13 "W. R. 376, 
 M. R. . 
 
 7 Harris r. Gandy, 1 De G., F. & J. 13; 
 and see Frost v. Wood, 12 W. H. 285, 
 L. .J.J. S. (>'. num. Frost v. Ward, 2 Do 
 G., J. & S. 70. 
 
 « Furze v. llennet, 2 De G. & J. 126. 
 
 Costs. 
 
 Where plain- 
 tiff in second 
 suit proceeds, 
 after notice 
 of decree in 
 the first. 
 
 Snatching 
 decrees. 
 
 Order to stay 
 suit by cred- 
 itor against 
 expcutdrs, 
 refused, till 
 their answer 
 put in.
 
 800 
 
 DISMISSING BILLS, AND STAYING PROCEEDINGS. 
 
 r. XIX. § 1. 
 
 Conduct of 
 (locree : 
 may be jiivcn 
 to plaint it)' in 
 i'tayed suit; 
 
 legatee 
 preferred to 
 creditor ; 
 
 ordinarily 
 pivon to 
 plaintilV in 
 lirst siut. 
 
 Stay of pro- 
 ceedings, on 
 account of 
 decree in a 
 foreign Court. 
 
 Injunction 
 against pro- 
 ceeding in a 
 foreign Court. 
 
 Pending a 
 rehearing. 
 
 two (.'xeciitors Mu-niiist n tliinl, the Court iH'fuscd to st;iy ll\c ))ro- 
 I'oetlings in :i suit liy :i civtlitor, Aviioso ciist' dciK'ndcd on vouclicrs 
 ami (loeunu'nts in tlio executors' liands, until tlu-y luul ])Ut in their 
 answer; and direetetl the motion to stay ])roeeedings to stand 
 over tuitil that liad been done : observing;, tliat tlie Court Mouhl 
 then know -who ought to have the comhiet of the litigation.^ 
 
 When tlie order staying proceedings is made, if a sufficient 
 reason for so doing ai)jiears, the Court will give the conduct of the 
 decree to the })laintitl" in tlie suit in which the j)roceedings are 
 stayed ; - hut the mere fact tliat the ])laintiif and defendants, in 
 the suit in which the decree has been made, apj)ear by tlie same 
 solicitor, is not a sufficient reason for so doing ; and where a 
 creditors' and legatees' suit are anndgamated, the Court prefers 
 giving the conduct of the cause to the legatee, who is interested 
 in reducing the exi)enses as much as possible, all persons being at 
 liberty to attend and assert their claims : considering it very 
 important that administration suits should be conducted in a 
 friendly spirit.^ AYlicre there are lio S])ecial circumstances giving 
 the preference to either plaintiff, the plaintiff in the first suit in 
 point of time will have the conduct of the iDroceedings.* 
 
 AYhere a decree or judgment has been obtained in a foreign 
 country, in respect of the same matter for which a suit has been 
 commenced in the Court of Chancery, j)roceedings in such suit 
 will be stayed, if the Court is satisfied that the decree or judgment 
 in the foreign Court does justice, and covers the Avhole subject 
 of the suit.® 
 
 A party to a suit in the Court of Chancery, wherein a decree has 
 been made under which he may obtain relief^ Avill be restrained 
 from prosecuting a suit in a foreign Court for the same object.® 
 
 Proceedings in a suit may also be stayed, pending a rehearing 
 or appeal.'' 
 
 1 Macrae v. Smith, 2 K. & J. 411; see 
 also Ijudgen v. Sage, 3 M. & C. 083, 687. 
 
 ^ See Macrae v. Smith, vbi sup.; Nor- 
 vall V. I'ascoe, 10 W. R. 338, V. C. K.; 
 Uawkes v. ISarrett, 5 Mad. 17 ; Kelk v. 
 Archer, lb .lur. 605, M. R.; M'llardy v. 
 Hitchcock, 12 Jur. 781, L. C; Smiths. 
 Guy, 2 I'hil. 159; 2 C. P. Coop. t. Cott. 
 2fcy; Wheelhouse v. Calvert, cited Seton, 
 bhb ; Frost V. Wood, vbi sup. ; Relcher v. 
 Belcher, 2 Dr. & Sm. 444, where the other 
 suit was by the personal representatives. 
 
 •* Per Sir J. Roniilly JI. R. in Penny 
 V. Francis, 7 Jur. X. S. 248; 9 W. R. 9; 
 see also Kelk v. Archer, ultl-sup. ; Harris 
 V. Lightfoot, 10 AV. R. 31, V. C. K. 
 
 ^ Morvall v. Pascoe, ubl sup.; and see 
 Salter v. Tildeslev, 13 W. R. 370, M. R. 
 
 s Ostell r. Le Page, 2 De G., .M. & G. 
 892, 894; 16 Jur. 1134, V. C. S.; see also 
 Stainton v. Carron Company (No. 3), 21 
 
 Beav. 500 ; ante, pp. 658, 659, 664,- and note ; 
 Lovfv. Mussey, 41 Vt. 393; Brown i'. Lex- 
 ington & Danville R.R. Co., 1 McCarter 
 (N. J.), 191. 
 
 6 Harrison v. Guraey, 2 J. & W. 563; 
 Bushby v. Munday, 5' Mad. 297; Beau- 
 champ V. Marquis of Huntley, Jac. 540; 
 ]5ooth V. Leycestcr, 1 Keen, 579; Wed- 
 derburn v. Wedderburn, 2 Beav. 208, 214; 
 4 Jur. 60; 4 M. & C 585, 594, 590; Gra- 
 ham V. Maxwell, 1 M'N. & G. 71; 13 Jur. 
 217; Maclaren t'. Stainton, 16 Beav. 279; 
 overruled by H. L., 5 11. L. Ca. 410; see 
 also Stainton v. Orron Company, 21 
 Beav. 152, 500; 2 Jur. N. S. 49, 1.. C. & 
 L. JJ. ; and upon conflict of jurisdiction, 
 generallv, see Venning v. Loyd, 1 De G., 
 F. & J." 193, 200; 6 Jur. N. S. 81; and 
 Seton, 881. 
 
 7 See pos<, Chap. XXX II. § 1, Rehear- 
 ings and Appeals.
 
 FOR WANT OF PROSECUTIOX. 
 
 801 
 
 It may also be mentioned here, that where an oppressive number 
 of bills has been filed, for infi-ingement of the same patent, the 
 Court will appoint some of the infringers to re2:)resent the others, 
 and stay the proceedings in the remaining suits.^ 
 
 Where a suit had been compromised, and the proceedings 
 therein stayed, the Court, on setting aside the compromise as 
 against one of the plaintiffs, gave him permission to proceed 
 with the suit, although it remained stayed as against the other 
 plaintiffs.^ 
 
 C. XIX. § 2. 
 
 Section II. — For Want of Prosecution. 
 
 Any defendant may, upon notice,^ move the Court that the bill 
 may be dismissed with costs, for want of prosecution, and the 
 Court may order accordingly, in the following cases : — 
 
 (1.) Where the plaintiff^ having obtained no order to enlarge 
 the time,* does not within four weeks * after the answer, or the 
 last of the answers, required to be put in by such defendant, is 
 held or deemed to be sufficient,® or after the filing of a traversing 
 note against such defendant,'' file replication,* or set doAvn the 
 cause to be heard on bill and answer,^ or serve a notice of motion 
 for a decree,^" or obtain and serve an order for leave to amend the 
 bill ; " or 
 
 (2.) Where the plaintiff, having undertaken to reply to a plea 
 filed by such defendant to the whole bill, does not file his replica- 
 tioTl within four weeks after the date of his undertaking ; ^^ or 
 
 (3.) Where the plaintiff, having obtained no order to enlarge 
 the time, does not set down the cause to be heard, and obtain and 
 serve a siibpoena to hear judgment, Anthin four weeks after the 
 evidence has closed.^^ 
 
 Where the i)laintift' obtains an order for leave to amend his bill, 
 and, having obtained no order to enlarge the time," does not amend 
 
 Time for 
 motion to 
 dismiss for 
 want of 
 prosecntion : 
 after suffi- 
 cient answer, 
 or after a 
 traversing 
 note; 
 
 1 Foxwell V. Webster, 10 Jur. N. S. 
 137, L. C; 2 Dr. & S. 250; 9 Jur. N. S. 
 1189. 
 
 2 Brooke v. Lord Mostvn, 13 W. R. 248, 
 L. JJ. 
 
 8 See Hoxey v. Carey, 12 Geo. 534. A 
 rule to .'■peed the cause sliould precede a 
 motion to di.-niiss for want of prosecution. 
 Dixon r. Kutlierford, 26 Geo. 153. 
 
 * Ante, p. 421. 
 
 fi These four weeks expire at 12 o'clock 
 at niplit on ihe hist ilav- i'reston v. Col- 
 lett, 20 L. .1. N. S. (•|i.'228, V. (J. Ld. (J. 
 
 8 Ante, pp. 412, 7^<); see Leite v. John- 
 Bton, L. It. 5 Kq. 2Gti. 
 
 7 Ante p. 514 tl stq. 
 
 « I'vtt, J). h-i,H tt grq. ; "ec GCth Efiuity 
 Rule of the United States Courts; and 
 VOL. I. 61 
 
 Rule 17 of the Chancery Rules in Massa- 
 chusetts. 
 
 3 Post, 828 et seq.; and Chap XXIII., 
 Stitirif/ clown Causes; see Kule 17 of the 
 Chancery liules in Massachusetts. 
 
 10 J'ost, p. fcl9 et seq. 
 
 11 Ante, p. 412. 
 1- Ante, p, 696. 
 
 13 Ord. XXXIII. 10; as varied by Ord. 
 22 Nov., 186t;, r. 1; see I'onsardin r. Stear, 
 32 Heav. CCO; 9 .Jur. N. S. 885; Ernest v. 
 Guvett, 2 X. IX. 4M>, V. C. AV. ; .see also 
 Hart f. Roberts, 32 Ik-av. 231; 7 .lur. N. 
 S. 609; post, Chap. XXIII., i>t:ttiiiii iloim 
 Causes; and see liraithwaite's Manual, 
 193, n. (135). 
 
 " Ante, p. 421. 
 
 after under- 
 taking to 
 reply to plea ; 
 
 where cause 
 not set down 
 in due time. 
 
 Effect, as to 
 dismissal, of 
 order to 
 amend not 
 acted on.
 
 802 
 
 DISMISSING BILLS, AND STAYING rROCEEDINGS. 
 
 C. \l\. 5 
 
 Artor aint'iiil- 
 iiiont of" liill, 
 and no an- 
 swer to 
 anuMulinoiits 
 roquirod ; 
 
 and time to 
 nnswor vol- 
 untarily has 
 expired ; 
 
 or further 
 time so to do 
 refused ; 
 
 after volun- 
 tar}' answer. 
 
 When vaca- 
 tions not 
 reckoned. 
 
 tlu> liill within tlu" tiino liiniU'd by the ordor to aiuoiul, or, if no 
 liiiu' he so limited, within Iburtecii (hiys iVoni the date of such 
 order, the ordor to amend is void, and the cause us to dismissal 
 stands in the same position as if the order to amend had not been 
 made.^ 
 
 Any defendant may, ui)Ou iiotieo, move to dismiss the bill with 
 costs for -want of prosecution, where the plaintiftj after answer, 
 amends his bill without requiriiiir an ansAver to the amendments 
 from any of the defendants,- and, having obtained no order to en- 
 large the time,'* docs not file the replication,* or set down the cause 
 to be heard on bill and answ^er,^ or serve a notice of motion for a 
 decree," within the times following, viz.: — 
 
 (1.) Within one week after the expiration of the time within 
 whieli the dei'endant might have put in an answer,'' in cases wdiere 
 the defendant does not desire to answer the amendments.* 
 
 (2.) Within fourteen days after the refusal to allow further time, 
 in cases where the defendant, desiring to answer, has not ptit in 
 his answer within the time allowed for that purpose, and the J udge 
 has refused to alloAV further time. 
 
 (3.) Within fourteen days after the filing of the answer, in cases 
 where the defendant has put in an ansAver to the amendments, 
 unless the plaintiff has, within such fourteen days, obtained a 
 special order for leave to except to such answer or to re-amend the 
 bill.» 
 
 In cases where the defendant puts in an answer to amendments 
 to which the plaintiff has not required an answer, vacations are 
 not reckoned in computing the times for filing rejjlication, settilig 
 down the cause, or setting down a motion for a decree.^" 
 
 If the plaintiff fails to set down a motion for decree within one 
 week after the expiration of the time allowed to him to file his afii- 
 davits in reply, in case the defendant has filed any affidavit, or 
 within one week after the expiration of the time allowed to the 
 defendant to file his affidavits in answer, in case the defendant has 
 not filed any affidavit, or in case the time allowed for either of the 
 
 1 Ord. XXXIir. 11. This order ap- 
 plies to all orders to amend, whether of 
 course or not; Armistead v. Durham, 11 
 Beav. 4-28; 13 Jur. 330; Uuiubrigge v. 
 liiiddeley, 12 IJoav. 152; 13 Jur. 997. 
 
 2 Brown v. Butter, 21 Beav. H15. This 
 case appears to be inconsistent with Bram- 
 stoti I". Carter, 2 Sim. 458; Cooke v. Da- 
 vies, 1 Kuss. 153, n. (c); and Kaistrick v. 
 Elsworth, 2 De G. & S. 05; 12 Jur. 281, 
 none of which were cited in Brown v. But- 
 ter; and see Forbes v. Preston, 11 Jur. N. 
 S. 198, V. C. S. 
 
 3 Ante, p. 421. 
 
 * Post, p. 828 et seq. 
 s Post,p. 828 et seq.; and Ch. XXIII., 
 Setting (kiwn Causes. 
 
 6 Post, p. 819 et seq. 
 
 ' See Ord. XXXVII. 7, which fixes the 
 time at thirty days from service of the 
 amended bill; and see ante, p. 740. 
 
 8 riiis applies, although an answer to 
 the amended bill may have been required 
 from another defendant. Forbes v. Pres- 
 ton, ubi sup. 
 
 '■> Ord. XXXIII. 12; as varied by Ord. 
 22 Nov., 1866, r. 1; ante, p. 765. 
 
 10 Old. XXXVU. 13 (4). It is assumed 
 tliat the words "setting down causes," in 
 Or.l. XXXVII. 13 (4), include setting 
 down motions for decree. As to the va- 
 cations, see ante, p. 412; and Braithwaite'8 
 Manual, 186, n. (109).
 
 FOR WANT OF PROSECUTION. 
 
 803 
 
 purposes aforesaid shall be enlarged, then w-ithin one week after 
 the expiration of such enlarged time, the defendant may move to 
 dismiss the bill for want of prosecution.^ 
 
 If the plaintiff" amends his bill, and requires an answer, the de- 
 fendant cannot move to dismiss the bill for want of prosecution 
 until four weeks from the exjiiration of the time when his answer, 
 or the last of his answers, to the amended bill is held or deemed 
 sufficient, except upon the same contingencies as are mentioned 
 above, with respect to answers to original bills.- 
 
 A defendant to a suit commenced by bill, who has not been re- 
 quired to answer the bill, and has not answered it, may apply for 
 an order to dismiss the bill for want of prosecution, at any time 
 after the expiration of three months from the time of his appearance, 
 unless a notice of motion for a decree has been served in the mean 
 time, or the cause has been set down to be heard ; and the Court 
 may, upon such application, if it shall think fit, make an order dis- 
 missing the bill, or make such other order and impose such terms 
 as may appear just and reasonable.^ In computing the three 
 months, vacations are reckoned.^ 
 
 Where, at the expiration of the three months, the evidence had 
 not closed, so that the plaintiff" could not set down the cause, the 
 Court, upon a motion to dismiss for want of prosecution, gave 
 the plaintiff" leave to set down the cause after the expiration of 
 the three months.* 
 
 The orders do not appear to be ft-amed to meet the case of a 
 defendant who files a voluntary answer; but it was said by Sir W. 
 P. AVood V. C, in Bentley v. Mercer^ that it must have been in- 
 tended that such a defendant should, in some way, be able to get 
 rid of a suit, after having put in a voluntary answer ; and it would 
 seem that a defendant muy, in such a case,, move to dismiss for 
 want of prosecution, after the expiration of three months from the 
 date of his aj>pearance, and four weeks from tlic filing of liis an- 
 swer, and possibly even after the expiration of the four weeks 
 although the three months have not expired.'^ 
 
 The riglit of a defendant to move to dismiss depends, in all cases, 
 upon the proceedings of the i>laintiff" relative to the ])articular de- 
 femlant making the motion, and not to the general proceedings in 
 tlie cause as to other defendants.® The form of order to be made 
 
 C. XIX. § 
 
 AVherc plain- 
 tiff amends, 
 and requires 
 an answer. 
 
 Where 
 defendants 
 are not 
 required to, 
 and do not, 
 answer. 
 
 Vacations. 
 
 Where the 
 CAidence had 
 not closed at 
 expiration of 
 the three 
 months, leave 
 given to set 
 down cause 
 after the 
 three months. 
 Wliere de- 
 fendant tiles 
 a voluntary 
 answer. 
 
 1 Onl. 22 Nov., 1866, rr. 2,3. 
 
 2 /!/.<«, p. «01. 
 
 8 Ord. X-XXIII. 13; as varied by Ord. 
 22 Nov., lh^;^i,^. 1. A bill was di^inissed 
 witli fonts under this order, in Iladdon v. 
 rej;ler, 5 .lur. N. S. Wl^, V. C. \\ . 
 
 < Hotiimil^v V. Snuire, 7 l)e G., M. & 
 G. 24t>; Ord. "XXXVII. 13 (Htli of .May, 
 lb4&, S>itid. Ord. 984) does not apply to 
 thin case. Ibid. As to the vacations, see 
 anlt, p. 412. 
 
 6 Bates V. Brothers, 2 W. K. 388, V. 
 C S. 
 
 6 4 Jur. N. S. 407; 6 \V. R. 265. 
 
 7 Bentlev v. Mercer, 4 .Jur. N. S. 407; 6 
 W. K. 205," v. C. W.; .see also Weeks v. 
 Hewar.i, 11 \V. K. 7!t, V. C. W.; Sciiiple 
 r. liolliiud, 1 N. K. 5(14, .M. U.; and Nu- 
 peiit V. Jenkinsoii, cited IJraitliwaite's I'r. 
 672. 
 
 8 See Nicholl v. Jone«, 14 W. H. T'J; V. 
 C. W.; Semntes r. Alott, 27 Geo. 1)2. A 
 
 Defendant's 
 riyht to move 
 to dismiss, 
 dejK'nds on 
 state of 
 proceedings 
 relative to 
 him only.
 
 804 
 
 DISMISSING BILLS, AND STAYING PROCEEDINGS. 
 
 c. XIX. 5 •:. 
 
 "Where 
 motUxi to 
 dismiss mav 
 be prevented 
 by aiueud- 
 ment ; 
 
 or by filing 
 replication. 
 
 Costs ia such 
 case. 
 
 No order of 
 course to 
 amend, alter 
 service of 
 notice of 
 motion to 
 dismiss. 
 
 Irreguhir 
 order to 
 amend is in 
 operation till 
 discharged. 
 
 Motion to 
 dismiss, after 
 adjournment 
 with leave 
 given to 
 amend. 
 
 Where cause 
 stands over 
 for a limited 
 time with 
 liberty to add 
 parties; and 
 in default, 
 bill to staud 
 dismissed ; 
 
 Where de- 
 fendant may 
 move that 
 bill, if not 
 amended 
 within a 
 certain time, 
 may be 
 dismissed. 
 
 upon stu'li :i motion is, Iiowovor, williin the discretion of the Court : 
 wliii-li will, of course, be ^iiidcd liy the conduct of the cause rehx- 
 tivc to all the defendants. 
 
 The jtlaintitl", by obtaining and serviiiL!: •'" order for leave to 
 antend the bill, i)reclu(U>s tlie defendant from moving to dismiss ; 
 and the orchM- to amend is in time, if drawn up and served before 
 the motion to dismiss is actually made, althougli after notice of the 
 motion has been served.^ And if, after service of the notice, the 
 l>Iaintilf tiles rei)lication, it is also a complete answer to the motion.'^ 
 But in such cases, and in others where a defendant's title to dismiss 
 is intercepted by a step taken by the phxintiff between the notice 
 of motion and its being heard, the phiintiff lias to pay the costs of 
 the defendant's application to dismiss the bill.^ It must be remem- 
 bered, however, that after service of a notice of motion to dismiss, 
 in a case where the defendant is entitled to move, an order of 
 course to amend cannot be obtained.* 
 
 An order to amend, if irregularly obtained, has been held to be 
 a nullity, and not, therefore, to stop a motion to dismiss ; ^ but this 
 decision would seem to be overruled : the rule of the Court now 
 being to treat all orders that have been made as valid, until they 
 have been regularly discharged.® 
 
 If, upon the hearing of a cause, it is ordered to stand over, with 
 liberty to the plaintiff to amend his- bill by adding parties: in 
 pursuance of which the plaintiff amends, but does not proceed any 
 further, the defendant may move specially to dismiss the bill for 
 want of prosecution, and is not bound to set the cause down again.'' 
 And where the order directs the cause to stand over for a limited 
 time, within which the plaintiff is to add necessary parties, and 
 that in default thereof the bill is to stand dismissed with costs, 
 without further order: if the plaintiff. does not add the parties 
 within the limited time, no further application need be made to 
 dismiss the bill, as it is already out of Court ; ^ but if the order 
 does not contain a direction for taxation and payment of costs, an 
 ex parte application for an order for such direction must be made.^ 
 Where the order does not direct the bill to be dismissed in case 
 
 bill cannot be dismissed for failure to 
 prosecute, if the defendants have caused 
 or acquiesced in the delay. Dixon v. 
 Kutherford, 26 Geo. 153. 
 
 i Peacock v. Sievier, 6 Sim. 553; Jones 
 V. Lord Charlemont, 12 Jur. 389, V. C E. 
 As to orders to amend, see a/j/e, p. 409 
 tt seq. 
 
 2 .Story r. Official Manager of the Na- 
 tional Insurance Society, 2 N. K. 361, V. 
 C. \V. ; and see post, p. fc05. 
 
 3 Ibid.; Waller u. Pedlington, 4 Beav. 
 124. 
 
 4 Ord. IX. 12; see Briggs v. Beale, 12 
 W. K. 934, V. C. W. ; and ante, pp. 412, 
 416. 
 
 s De Geneve v. Hannam, 1 R. & M. 
 494. 
 
 G Blake v. Blake, 7 Beav. 514; Petty v. 
 Lonsdale, 4 M. & C. 545; 3 Jur. 1186, 
 reversing ib. 1070; Chuck v. Cremer, 2 
 Phil. 113, 115; 1 C. P. Coop. t. Cott. 338, 
 342; and see observations in report last 
 cited; Whittington v. Edwards, 3 De G. 
 & J. 243, 249. 
 
 " Mitchel V. Lowndes, 2 Cox, 15. 
 
 ** See Stevens v. Praed, if/. 374. 
 
 ^ Doljede v. Edwards, 11 Sim. 454. 
 Quwre, if the api)lication should not be 
 on notice, see Seton, 1116. For form of 
 motion paper, see Vol. III.
 
 FOR WANT OF PROSECUTION. 
 
 805 
 
 the bill is not amended within the time specified in the order, and 
 the plaintiff omits to amend, the defendant may move, npon notice, 
 that unless the bill be amended within a certain time, it may be 
 dismissed with costs.^ 
 
 "Where, at the time of service of the notice upon the plaintiff, 
 the defendant had a right to move to dismiss the bill, yet, if the 
 plaintiff files a replication, or serves an order to amend the bill, 
 before the "heaiing of the motion, the defendant's right is inter- 
 cepted, and the plaintiff will be allowed to retain his bill.- 
 
 Where, however, the plaintiff adopts this course, the Court 
 usually orders him to pay the costs of the application for dismissal ; 
 and even though the defendant had notice that the plaintiff, by 
 taking a step in the cause, had prevented any order being made 
 upon the motion to dismiss, yet, where the plaintiff had not ten- 
 dered the costs of preparing and serving the notice of motion, it 
 "was held, that the defendant had a right to bring his motion before 
 the Court, for the purjiose of obtaining his costs ; where the plain- 
 tiff had tendered the costs of preparing and ser\'ing the notice of 
 motion, there seems to have been some difference of opinion as to 
 the right of the defendant to bring on the motion to obtain taxed 
 costs ; ^ Itut the jDractice would now seem to be that the defendant 
 is entitled to the costs actually incm-red, and that he may in all 
 cases, if necessary, bring on his motion for the purj^ose of obtain- 
 ing them.* It would seem, hoAvever, that if the plaintiff tenders the 
 costs which have been incurred, it is improper for the defendant to 
 bring on his motion, and that he would not be allowed subsequent 
 costs.^ 
 
 Where there is an irregularity in the notice of motion to dismiss, 
 the Court will not make the plaintiff pay the costs of the applica- 
 tion for dismissal.® 
 
 An order to dismiss a bill for want of prosecution, operates fi'om 
 the time of its V>eing pronounced ; and it w^ould seem, therefore, 
 that the filing .of rej)lication on the same day does not prevent its 
 effect ; '' although the contrary has been held, under the old prac- 
 tice, where the order was made ex parte.^ 
 
 1 Emerson v. Emerson, 6 Hare, 442; 12 
 Jur. 973. 
 
 2 Waller v. Pedlincton, 4 Beav. 124; 
 C'orry y (.'uriewis, 8 Heav. 600; Hcanlcy 
 e. Abraham, 6 Hare, 214; Young v. Quiii- 
 cej', 9 IJeav. 100; anrl pee ante, p. 804. 
 
 8 Attorney-(iencraI v. Cooper, 9 Sim. 
 379; 2 .lur. 017; I'iper v. Gitteiis, 11 Sim. 
 282; \Vri^;ht r. Anfjie, 6 Hnre, 109; 12 
 Jur. 34; lliif;lie.% r. Lewis, John. 696; C 
 Jur. .N S. 804. 
 
 * Hu;jl)eH 7'. F^ewis, 6 Jur. N. S. 442; 
 Johnt". 690, 098; an'l see note by Hf^'S- 
 triirn there «i't out. Kindlay v. Lawrence, 
 11 Jur. 70.';, V. C. K. ]5. 
 
 5 Newton V. Ricketts, 11 Ren v. 164. 
 
 « Stee<lman v. Poole, 10 Jur. 979; 11 
 Jur. r)55, V. C. W. 
 
 ' I.,orin»er r. Lorimer, 1 J. & AV. 284, 
 288; and see note of Registrars in Hughes 
 V. Lewis, John. 698. 
 
 8 R.'vnold.'! V. Nelson, 5 Mad. 60; Fox 
 V. IMorewood, 2 S. & S. 325. The lilinj^of 
 a replication after notice (^iven of a motion 
 to dismiss the bill for want thereof, is ^nod 
 cause against the motion; but it will be 
 allowed only on jiaynient of costs. Oris- 
 wold V. Iiimnn, lllopk. 80. M'lierc a 
 cause is at issue as to one of the defend- 
 ants, by filing a rejilication to liis answer, 
 
 C. XIX. § 2. 
 
 Plaintiff, by 
 replying, or 
 serving order 
 to amend, 
 may intercept 
 defendant's 
 right to 
 dismiss. 
 Costs in such 
 a case. 
 
 Defendant 
 entitled to 
 actual costs; 
 but ouglit not 
 to bring on 
 motion, after 
 sutHfient 
 tender. 
 
 Costs of 
 application, 
 where notice 
 of motion 
 irregular. 
 Order to dis- 
 missoverrides 
 replication 
 tiled on same 
 day, semble.
 
 80G 
 
 DISMISSING BILLS, AND STAYING PROCEEDINGS. 
 
 (\ XIX. 5 -2. 
 
 Motion to 
 disnii!v«, not 
 pri'vonti'it by 
 intorliH-iitory 
 application. 
 
 Onlcr of 
 rel'eronce as 
 to title, 
 prevents a 
 motion to 
 dismiss. 
 
 Notice of 
 motion for 
 too early a 
 day, not 
 cured Uy 
 postponing 
 motion. 
 Defendant, in 
 contempt tor 
 non-payment 
 of costs of 
 attachment, 
 cannot move 
 to dismiss. 
 
 Motion to 
 dismiss irreg- 
 ular, atler 
 order to stay 
 till contempt 
 cleared by 
 plain tilJ". 
 
 Where secu- 
 rity tor costs 
 ordered, but 
 not given. 
 
 Tito (lotoiidant is not ])rovoiitO(l, by :in iiiterlotnitory :i]i])licntion, 
 iVotii moviiio- to dismiss lor want, of ])fosoc'titioii ; and oven tlic ob- 
 tainiiiii- an itijiiin'tion docs not pnniMit tin' bill beino- dismissod.^ 
 The saino was also lii'ld ofsliowinn' causi', siicccssf'tiUy, ao-;iinst dis- 
 st)lving an injiint-tion ;'^ and an ofder to dismiss a bill for want of 
 pfosec'ution w:is hold to be veotilav, althoiiu;h made tifttM- a notice 
 had boon oiven by the defendant of a motion to dissolve an injunc- 
 tion, but which motion was not made, in consequence of the state 
 of business in the Court.* 
 
 There is one case, however, in which an order made ujjon an 
 interlocutory ajiplication is considered as a sufficient proceeding to 
 prevent the dismissal of a bill for want of prosecution ; viz., where 
 the bill having been filed for the specific ]ierformance of a contract, 
 and the title only being in dis])utc, a reference is made, u])on mo- 
 tion, to inquire into the title.^ In such case, the order being in the 
 nature of ;i decree, made upon the hearing of the cause, prevents the 
 dismissal of the bill. The same rule applies to all decretal orders.^ 
 
 It has always been a general rule, that if notice of motion to 
 dismiss for want of prosecution be given for too early a diiy, the 
 defect is not cured by the motion being accidentally postponed to 
 a day when it might have been regularly made.^ ' 
 
 It is to be recollected, that a defendant who is in contempt for 
 non-payment of the costs of an attachment, for not putting in his 
 answer in due time, will not be in a situation, even after answer, 
 to move to dismiss the bill for want of prosecution : unless, indeed, 
 the plaintiff has replied to the answer, or taken any other step 
 amounting to an acceptance of it.' 
 
 After an order to stay proceedings until the plaintiff had cleared 
 his contempt, a motion to dismiss Avas held to be irregular, and 
 was refused.® 
 
 Where the defendant has obtained an order for security for 
 costs, which h.'is not been complied with, lie should not move to 
 dismiss the bill for want of prosecution, but that, unless security 
 is given within a limited time, the bill may be dismissed.^ 
 
 and the pluintifF has neglected to proceed 
 ag.iiiist the other parties so that such de- 
 fendant cannot proceed to examine wit- 
 nesses and close the proofs, he may move 
 to dismiss the pluintiif's hill for want of 
 prosecution. Vermilveay. Odell, 4Paigc, 
 121; S. C. 1 Edw. Ch. G17; Whitney ?;. 
 Mayor, &c., of New York, 1 Paige, 548; 
 Hastings v. Palmer, 1 Clarke, 52. 
 
 i Day V. Snee, 3 V. & 15 170; James w. 
 Biou, 3 S«anst. 234, 231); P>liss v. Collins, 
 cited 2 Mer. 62. 
 
 2 Elari of Warwick v. Duke of Beaufort, 
 1 Cox, 111. 
 
 3 Farquhar=on v. Pitcher, 3 Russ. 383. 
 Motion refused where defendant had filed 
 interrogatories for the examination of the 
 
 plaintiff. Jackson v- Ivimej'-, L. R. 1 Eq. 
 693, V. C. W. 
 
 4 Piscoe V. Brett, 2 V. & B. 377; Collins 
 V. Greaves, 5 Hare, 596; Gregory r. Spen- 
 cer, 11 Beav. 143. 
 
 5 Bluck V. Colnaghi, 9 Sim. 411; ante, 
 p. 793; post, p. 810; Anon., 11 Ves. 169. 
 
 I>e Geneve v. Hannam, 1 R. & M. 
 494; mv\ see Ponsardin v. Stear, 32 Heav. 
 G66; 9 Jur. N. S. 885; Ernest v. Govett, 2 
 N. U. 486, V. C. W. 
 
 7 Anon., 15 Ves. 174; Herrctt v. Rey- 
 nolds, 2 Giff. 409; 6 Jur. N. S. 880. 
 
 8 Futvove V. Kennard, 2 Giff. 533: 7 
 Jur. N. S. 958. 
 
 9 Konnedv v. Edwards, 11 Jur. N. S. 
 153, V. C. W.; ante, pp. 35, 36.
 
 FOR WANT OF PROSECUTION. 807 
 
 A defendant can only have the bill dismissed as against himself: C. Xix. § 2. 
 
 not as against all the defendants ; ^ and the notice of motion should ""^ y ' 
 
 be framed accordingly. onh'^i^"**^'^ 
 
 An order to dismiss a bill can only be druAvn up on the produc- against the 
 tion of the Record and Writ Clerk's certificate of the proceedings J'o'",'Jg"^ 
 in the cause, for the purpose of showing what proceedings have How order 
 been had. This certificate ought to be produced in Court at the ^'■'^^*'° 'up- 
 time of the motion being made, or at all events before the rising 
 of the Court on that day ; "^ and the Registrar will not draw up 
 the order until he sees that the certificate has been granted.^ Some- 
 times, the certificate has been applied for, and obtained, after the 
 order has been pronounced by the Court; so that it was dated 
 subsequently to the order : which, although drawn up and entered 
 afterwards, is always dated on the day that it is pronounced by 
 the Court.* This practice would seem to have been irregular, and, 
 if objected to, not now to be peiTuitted.^ 
 
 Where either party does not appear on the motion, an oflice Where eithtn- 
 copy of the affidavit of ser^dce of the notice of motion « must also ^ppe^?""*""' 
 be in Court ; and where the defendant fails to moA'e, the plaintift' 
 may obtain an order for i^ayment of liis costs of the abandoned 
 motion.^ 
 
 Upon hearing the motion, the Court usually either dismisses the On liearing 
 
 ,.,,., - , ,..,,. , i !• xi motion, Court 
 
 bill With costs, or orders the plaintiiT to i:)ay the costs ot the usually 
 motion, and to enter into an undertaking to amend the bill, file allows it with 
 
 ' '^ • !■• costs, or 
 
 replication, or set down the cause to be heard on motion lor orders plain- 
 decree, or on bill and answer, Avithin a limited period, according co^/s°amf 
 to the state of the suit : ^ or, as it is usuallv expressed, to " speed undertake to 
 the cause. cause. 
 
 The Court, however, sometimes directs the motion to stand Motion some- 
 over, in order to give the plaintiff an opportunity of taking a step to"stand over, 
 in the cause, and so preventing the bill being dismissed ; and ^"^ plaintiff 
 
 . ^ =■ "^ . to proceed. 
 
 Upon his doing so, makes no other order on tlie motion than that 
 the plaintiff pay the costs ; " or, if satisfied that the plaintiff 
 has used reasonable diligence, it has refused to make any order on 
 
 1 Ward V. Ward, 11 Beav. 159, 162; 12 386; Earl of Morninptoii v. Smith, 9 Beav. 
 
 Jur. &'j2. 251; Hiirdy r. Hardy. 1 C. P. Coop. t. 
 
 - Freeston ». Claydon, 17 Jur. 435, V. Cott. 16; Uillianis r.'ltowland, 3 .fur. N. 
 
 C. W. S. 658, V. C. W.; Hancock v. h'oUison, 5 
 
 3 Wills V. Pugh, 10 Ves. 402, 403. Jur. N.» S. 1199; 8 W. K. 18, V. C. S.; 
 
 * Ihvl; APMahon r. Sisson, 12 Ves. Hand r. King, 10 .Jur. N. S. 91, V. C. W.; 
 
 465; Attornev-GeiK-rid /•■ Kincli, 1 V. & Junes j;. .tones, 10 .Jur N. S. 1 107. I.. JJ. ; 
 
 B. 368; King!-. Noel, 5 .Mad. 13; lln Itisca I'orbes v. Preston, 11 .Jur. N. S. 198, V. C. 
 
 Coul Compaiiv, 10 \V R. 701,L. (.'. S. ; .Southampton, &c. Steamlioat Com- 
 
 6 Hell V. IJeli, 14 .lur. 1129, V. C Ld. paiiv (Limited) r. Kawlins, 13 W. U. 512, 
 C. ; Freeston r. (Jlavdon, vbi sun. L. .J.F. 
 
 For form.s of aflVlavil, see A ol. III. '■> Young v. Quincv, 9 IJenv. ICO; Stin- 
 
 7 Hfc. //"Hi, Chap. XXXV. § 2, Motions ; ton v. Taylor, 4 Hare, 608, 609; 10 Jur. 
 Ord. XI.. 23. 386. 
 
 8 Stinlon v. Taylor, 4 Hare, 608; 10 Jur.
 
 808 
 
 DISMISSING BILLS, AND STAYING PROCEEDINGS. 
 
 r. XIX. § '2. 
 
 V- y ^ 
 
 Flirt lior time 
 
 sonietiiiu's 
 
 fCivon. 
 
 Costs. 
 
 aro in the 
 
 discretion of 
 
 the Court. 
 
 Costs: whore 
 plaintitl" 
 oecomes 
 bankrupt, or 
 sues in forma 
 paupeAs ; 
 
 or where 
 defendant 
 becomes 
 bankrupt. 
 
 Court -will 
 not enter 
 into merits, 
 on motion to 
 dismiss. 
 
 Where 
 defendant 
 knows plain- 
 tiff has 
 used due 
 diligence. 
 
 tlio motion;^ ami aftrv ivpl'u-ation lias boon filod, the Court will, 
 in a pro]>ov case, give the jilaintitt* further time.* 
 
 Xot-Nvithstandini; the onactniont tliat, upon tlic defendant's 
 dismissing a bill for want of proseeution tlie plaintiff shall pay to 
 the defendant his eosts, to 1)0 taxed by the ]\[aster,^ the Court has 
 a disoretion to make sueh order in respect of costs, as well as in 
 other respects, as it thiidvs fit; and though, in most cases, where 
 the defendajit was in a ])osition to move to dismiss at the time the 
 notice was served, the Court orders the plaintitf to i>ay the costs, 
 whatever order it may make in other resjioets, it has refused to 
 make any order upon the motion :* has dismissed the bill, Avithout 
 costs:® and has even gone the length of dismissing the motion 
 Avith costs.® 
 
 "Where the plaintiff becomes bankrupt,'' or has filed his bill 
 in forynu 2Kiu2yeris,^ \\\Q x\\\e is to dismiss the bill without costs. 
 "Where the defendant becomes bankrupt, it seems to liave been 
 formerly considered that the bill, if dismissed for want of prose- 
 cution, ought to be dismissed without costs;' but it has since 
 been held, that the fi^ict of a defendant becoming a bankrupt, is 
 not of itself a suflicient reason for departing from the ordinaiy 
 rule that, a bill dismissed for want of prosecution, is dismissed 
 with costs.^° 
 
 The Court will not enter into the merits of the case, for the 
 puqiose of determining whether the bill shall be dismissed Avith 
 or without costs ; but will, for that purpose, only consider the 
 conduct of the parties in the prosecution of the cause.-'^ 
 
 Where a defendant, knowing that the plaintiff has used due 
 diligence and been unable to get in the answers of other defend- 
 ants, moves to dismiss the bill for want of prosecution, the motion 
 will be dismissed Avith costs ; -^^ and it is, therefore, prudent on the 
 
 6 Partington v. Baillie, 5 Sim. G67 ; Win- 
 thrnp V. Murray, 7 Hare, 150; 13 Jur. 32; 
 Ingle V. Partridge, 33 Beav. 287. 
 
 ■^ Ante. p. 64, post, p. 813; Meiklam v. 
 Elmore, 4 De G. & J. 208; 5 Jur. N. S. 
 904; nnd see/)os<, p. 814. 
 
 8 Ahte, p, 792; and see p. 42. 
 
 9 Blanchard t'. Drew, 10 Sim. 240; Mon- 
 teith 1'. Tavlor, 9 Ves. 615; 1 M'N. & G. 
 81, n.; Kemball v. AVaMuck, 1 Sm. & G. 
 Ap. 27; 18 Jur. 69; Findhiy v. Lawrence, 
 2 De G. & S. 303. 
 
 1" Blackmore v. Smith, 1 M'N. & G. 80; 
 13 Jur. 218; Itob'^on v. Earl of Devon, 3 
 Sm. & G. 227; 2 Jur. N. S. 565; Levi v. 
 Hetitafje, 26 Beav. 560; S. C. nom. Lever 
 V. IIf'ritat,fe, 5 Jur. N. S. 215. 
 
 11 Sta{,'K V. Knowles, 3 Hare, 241, 244; 
 Soutli Staffordshire Kailwav Compnny v. 
 Hall, 16 .lur. 160, V. C. K. ; VVallis v. \Val- 
 lis, 4 Drew. 458. 
 
 12 Partington*. Baillie, 5 Sim. 667; AVin- 
 throp V. Murray, 7 Hare, 150; 13 Jur. 32; 
 
 1 Ingle V. Partridge, 12 W. R. 65, M. R. ; 
 33 Beav. 287. 
 
 2 Pollard V. Doyle, 2 W. R. 509, V. C. 
 K. ; and see Forbes v. Preston, 11 Jur. N. 
 S. 198, V. C. S. 
 
 3 4 & 5 Anne, c. 16, § 23, ante, p. 791. 
 As to the form of order, where the suit is 
 by an official manager or liquidator, see 
 Grand Trunk Company ". Brodie, 3 De G., 
 M. & G. 146; 17 .Jur." 309; 9 Hare, 823; 
 
 17 Jur. 205; Official Manager of Consols 
 Insurance Compaiij- v. AVood, 13 W. R. 
 492, V. C. K. ; 2 Dr. & Sm. 353; and see 
 Morgan & Davey, 226. 
 
 ■* A'ent r. Pacey, 3 Sim. 382; and see 
 Ingle V. Partridge, nhi sup. 
 
 6 Pinfold V. Pinfold, 9 Hare Ap. 14; 16 
 Jur. 1081, V. C. T. ; and see South Staf- 
 fordshire Railway Company r. Hall, 16 Jur. 
 160, V. C. K.; Lancashire and Yorkshire 
 Railway Company v. Evans. 14 Beav. 529; 
 Kemball v. AValdiick, 1 Sm^ & G. Ap. 27; 
 
 18 Jur. 69, V. C, S.
 
 FOR WAXT OF PROSECUTION. 
 
 809 
 
 part of the plaintiff to give a defendant who is in a position to 
 move to dismiss, notice that the other answers have not been got 
 in, if such is the fact.^ 
 
 TVhere the plaintiff undertakes to speed the cause, the order 
 ought to go on to provide that, in default of his taking the 
 appointed step within the prescribed period, the bill shall be 
 dismissed with costs, without further notice.'^ 
 
 If the plaintiff makes default in taking the next step within 
 the time limited, no further indulgence will in general be granted 
 him.^ Where, however, the plaintiff considers he has a case 
 entitling him to ask for further indulgence, he should make a 
 special application for flirther time, by motion or summons, before 
 the expii-ation of the period limited;* or if the time has ex- 
 pired, the application must be to have the bill restored.^ It is 
 not, howevei-, the ordinary course of the Court to restore a bill 
 which has once been dismissed ; it must be shown that substantial 
 justice requires that it should be done, and then, upon the paitic- 
 ular circumstances, the Court will make the order.® The Court 
 will not restore a bill, which has been regularly dismissed, for the 
 mere purpose of agitating the question of costs.'' 
 
 It has been held, that it is no answer to a motion to dismiss 
 that the plaintiff has not been able to get in the answers of other 
 defendants;^ or that the delay of the plaintiff was occasioned 
 by difficulties in drawing up an order allowing a demurrer by 
 other defendants, with leave to amend ; ^ or that the plaintiff has 
 applied for the production of documents, unless the application 
 was made without delay : ^° or that proceedings had been stayed, 
 against other defendants, till the plaintiff should pay them certain 
 
 C. XIX. § 2. 
 
 Form of 
 order, where 
 plaintiff 
 undertakes 
 to speed. 
 
 Where plain- 
 tiff' makes 
 default, no 
 further 
 indulgence 
 generally 
 granted. 
 
 Bill may be 
 restored, on 
 special 
 grounds; 
 
 but not for 
 the purpose 
 of costs. 
 
 "What is not 
 an answer to 
 a motion to 
 dismiss. 
 
 and see Ingle v. Partridge, 12 W. R. 65, 
 M. R.; 3.3 Uenv. 287; Nicholl v. Jones, 14 
 W. K. 79. V. C. W.; Barker v. Piele, 12 
 W. K. 460, V. C. K. 
 
 1 Ad;tir v. Barrington, 2 W. R. 361; 2 
 Eq. Rep. 408, V. C W. 
 
 2 Emerson v. Emer'on, 6 Hare, 442; 12 
 •Jur. 97.3; Stephenson v. Mackaj', 24 Beav. 
 2.52; Pearce v. Wrigton, i6. 253; and see 
 Bartlett v. Harton, 17 Beav. 479; 17 Jur. 
 1019; Stevens v. Praed, 2 Cox, 374; Do- 
 bede v. Edwards, 11 Sim. 454. For form 
 oforder in such case, see .Seton, 1278, No. 4. 
 
 8 Lamert t'. Stanhope, 5 De G. & S. 
 247; Stephenson v. Mackav, ubisiip. ; Wil- 
 liHms V. Page, 24 Beav. 490; Bartlett v. 
 Harton, u/u sup. 
 
 * La Mert i.'. Stanhope, vhi sup. In an 
 ordinary case the application should be 
 mnde by summons. For forms of notice 
 of motion and summons, sou Vol. III. 
 
 '' Hartlett v. Harton, 17 Beav. 479; 17 
 Jur. 1019; .r.ickson r. Purnell, 16 Ves. 204; 
 the a|)pl:ciitioii, in this case, should be 
 made by motion. For form of notice of 
 motion, see Vol. III. 
 
 • See Southampton Steamboat Com- 
 
 pany V. Rawlins, 11 Jur. N. S.230; 13 W. 
 K. 512, L. JJ., where the delay had been 
 occasioned bj* a mistake. 
 
 ■^ Hannam v. South London Water 
 Works Company, 2 Mer. 63, 64; Stone v. 
 Locke, 48 Maine, 425. Where a bill has 
 been dismissed from the docket, for want 
 of prosecution, on motion of the defendant, 
 the suit cannot properly be brought for- 
 ward at a subsequent term, on motion, to 
 obtain an order for costs. It seems the 
 proper proceeding for the defendant, after 
 dismissal for want of prosecution, is to 
 apply for an order to discharge the decree 
 dismissiifg the bill. Stone v. Locke, wii 
 siiprtt. 
 
 8 Lester »'. Archdale, 9 Beav. 156; Earl 
 of Morniiigton j;. Smith, ib. 251; Baldwin 
 V. Darner, 11 Jur. 723, V. C. E. ; Stinton 
 r. Taylor, 4 Hare, 008, 609; 10 Jur. 386; 
 Ad:iir V. Barrington, 2 W. K. 301; 2 Eq. 
 Bep. 408, V. C. W. ; Briggs v. Beale, 12 
 W. li. 934, V. C. W.; but see an/e.p. 808. 
 
 9 Jones V. Morgan, 12 Jur. 388, V. C. E.; 
 see also Drioli v. Sedgwick, 15 Jur. 284, 
 V. C. I.d. C. 
 
 i» Franco t;. Meyer, 2 H. & M. 42.
 
 810 
 
 DISMISSING BILLS, AND STAYING PROCEEDINGS. 
 
 C. XIX. § 2 
 
 Nogotiatious 
 with 
 
 dofendant 
 moving may 
 be an answer. 
 
 PdViulant 
 may iiun-o, 
 although lie 
 lias omittml 
 to give notice 
 of tiling his 
 answer. 
 
 Where plain- 
 tiff outlawed. 
 
 Abatement 
 by detond- 
 aiifs death. 
 Bills to 
 perpetuate 
 testimony, 
 cannot be 
 dismissed for 
 want of 
 prosecution. 
 
 Bills of 
 discovery. 
 
 Suit for 
 receiver, 
 pendente lite. 
 
 costs :^ or that the plaintilV had onVrcMl to dismiss the bill with- 
 out t'osts : the deeision on whieh it had l)een filed having been 
 overruled;'-^ or that the detenthmt lias beeonie baid<ni|)1.'' 
 
 Where, however, in eonsi'quence of negotiations with the prin- 
 cijial defendant, the plaintiff' did not get in tlie answers of the 
 other defendants, and the principal defendant, during the absence 
 of the ]>laintiff abroad, moved to dismiss for want of prosecution, 
 Lord Cottenham gave the ]d;iintilf (on the 7th of July) till the 
 1st day of the ensuing Michaelmas term, to file replication.* The 
 omission on the part of the defendant to give notice of the filing 
 of his answer,^ does not affect his right to move to dismiss the 
 bill for want of prosecution: though, of course, it may materially 
 atlect the order which the Court will make upon the motion.''' 
 
 A bill may be dismissed for want of prosecution, while the 
 plaintiff is an outlaw.' 
 
 A defendant is not prevented from moving to dismiss by the 
 suit having abated, through the death of another defendant.^ 
 
 In bills to perpetuate testimony, it does not seem that the de- 
 fendant has hitherto had, under any circumstances, a right to 
 have the bill dismissed for want of prosecution. In J3eavan v. 
 Carpenter^ a cause of this kind, a motion to dismiss before 
 I'eplication, was refused ; but Sir Lancelot Shad well V. C. made 
 an order, that the plaintiff should file a replication forthwith, and 
 proceed to the examination of his witnesses, as prayed by his bill, 
 and procure such examination to be con^pleted on or before a cer- 
 tain day; and that, in default thereof, he should pay to the defend- 
 ant his costs of the suit. And a similar order was made, on a like 
 motion after replication.^" 
 
 So, in the case of a bill for discovery, the defendant should 
 not move to dismiss for want of prosecution, but should, after 
 the time for excepting to his answer has elapsed, obtain, on peti- 
 tion as of course, an order for the j^ayment of his costs by the 
 plaintiff." And in a suit for a receiver, pendente lite., the motion 
 
 T Knowles v. Rhvdydefed Colliery Com- 
 panv, John. 630; 6 Jur. N. S. 291. 
 
 8 "Williams v. Page, 24 Beav. 490. 
 
 9 11 Sim. 22. 
 
 10 Wright V. Tathani, 2 Sim. 459 ; and 
 Barham v. Longman, ih. 460; see also 
 Brigstocke v. Roch, 7 .Jur. N. S. 03, V. C. 
 S.; and /)os^ Chap. XXXIV. § 4, Bilh to 
 Perpetuate Testimony. 
 
 11 Woodcock V. King, 1 Atk. 286; Attor- 
 nev-General v. Burch, 4 Mad. 178; Rhodes 
 V. Hayne, 9 .lur. 175, V. C. K. B. ; South 
 Eastern Kailwaj' Company v. Submarine 
 Telegraph Company, 18 "Beav. 429; 17 
 Jur. 1044; Fitzgerald v. Butt, 9 Hare Ap. 
 6.5; f.eepost, Chap. XXXIV. § 2, 7:li.lls of 
 Discovery. J)'or form of petition, see post, 
 Vol. III. 
 
 1 Lautour v. Holcombe, 10 Beav. 256. 
 
 2 Lancashire and Yorkshire Railway 
 Company v. Evans, 14 Beav. 529; the bill 
 was, however, in this case, afterwards dis- 
 missed without costs. South Stafibrdshire 
 Railway Company v. Hall, 16 Jur. 160, V. 
 C. K. 
 
 8 Levi V. Heritage, 26 Beav. 560, and 
 cases there cited; S. C. nom. Lever v. 
 Heritage, 5 Jur. N. S. 215; or that a 
 cross-bill at the suit of another defendant 
 is pending. Windham i>. Cooper, 14 W. 
 R. 8, V. C. W. 
 
 4 Hardy v. Hardy, 1 C P. Coop. t. Cott. 
 16. 
 
 5 Ord. III. 9; see ante, p. 755. 
 « Jones V. Jones, 1 Jur. N. S. 863; 3 
 
 W. K. 638, V. C. S.
 
 FOR WANT OF PROSECUTION. 
 
 811 
 
 should be for payment of costs, to stay proceedings, and, if neces- 
 sary, to discharge the receiver.^ 
 
 After a decree, or even a decretal order, has been made, a bill 
 cannot be dismissed for Avant of prosecution ; thus, in the case of 
 Uluck V. Cohiagki^- which was a suit for winding up the aflairs of 
 the partnership between the plaintiff and defendant, and in Avhich 
 an order had been made, by consent on motion, for taking the 
 accotmts of the partnership, but had not been drawn up, Sir 
 Lancelot Shadwell V. C. said, that the order which had been pro- 
 nounced was a decretal order ; and though it had not been drawn 
 up, yet, cither party was at liberty to draw it up ; and that an order 
 in the nature of a decree haA-ing been made in the cause, the bill 
 could not be dismissed. But after a decree merely directing 
 accounts and inquiries, to enable the Court to determine what is 
 to be done, a bill can always be dismissed.^ 
 
 It has been before stated, that an order to dismiss a bill for 
 want of prosecution cannot be pleaded in bar to a new bill for the 
 same matter.* Where, however, after a bill has been so dis- 
 missed, the plaintiff files another bill for the same purpose, the 
 Court will suspend the proceedings on such new bill till the- costs 
 of the former suit have been paid ; and where the defendant, in 
 the suit which had been dismissed, died before he had received 
 his costs, and the i:)laintiff filed a new bill against his executor 
 for the same object, Sir Lancelot Shadwell V. C. ordered the 
 proceedings on the new bill to be stayed, until the plaintiff had 
 paid the executor the costs of the dismissed suit.^ This rule does 
 not apply, Avhere the plaintiff sues by a next fi-iend.® 
 
 An order to dismiss a bill for want of prosecution, effectually 
 puts an end to every proceeding in the suit which has been dis- 
 missed, and no subsequent stej) can be taken in it, except such as 
 may be necessary for carrjnng into effect the order of dismissal.'' 
 TlKTcfore, where a defendant obtains an order to dismiss a bill 
 for want of prosecution, without the plaintiff's having made a 
 motion of which he has given notice, the defendant cannot 
 
 C. XIX. § 2. 
 
 After decree, 
 or decretal 
 order, a 
 motion to 
 di.<iuiss for 
 want of 
 prosecution 
 cannot be 
 made. 
 
 Dismission 
 cannot be 
 pleaded to a 
 new bill; 
 
 but second 
 suit may be 
 staj-ed, till 
 costs paid. 
 
 No proceed- 
 ing, after 
 order to 
 dismiss. 
 
 1 Edwards v. Edwards, 17 Jur. 826, V. 
 r. W . ; Anderson r. Gnicliar', 9 Hare, 275 ; 
 Barton r. liock (No. 2), 22 Heav. 37G; see 
 now 20 & 21 Vic. c. 77, §§ 70, 71; but 
 see Williams v. Attorney-General, Seton, 
 1003. 
 
 2 9 Sim. 411; Krk v. Deve}', 11 Beav. 
 221; nee also ante, [in. 793, 806; and Col- 
 Hdh v. Greaves, 5 Mare, 59G; Gregory v. 
 Spencer, 11 Ilea v. 143. 
 
 * Anon., 11 Ves. 169; Bnrton i; Barton, 
 3 K. & J. .512; 3 .Jur. N. S. 808; ami see 
 anlr, p 793. 
 
 * Ante, p. 659; Story Y.<\. V\ § 793; 
 MitfonI Ivj. 1*1. by Jeremy, ^''; see Byrne 
 V. Fre>c, 2 Moll. 107. When a bill is" dis- 
 
 missed for want of prosecution, it operates 
 as a discontinuance, and is no more than 
 a nonsuit, at law, and does not prevent tiie 
 bringing of a new bill. M'Broom v. Som- 
 mervillft, 2 Stewart, 51.') ; Porter v. Vaughn, 
 26 Vt. 624. The dismissal absolutely of a 
 bill by a Court which had no jurisdiction 
 of the case, is no bar to another suit. Lan- 
 caster V. Lair, 1 Dana, 109. 
 
 6 Long V. Storie, 13 Jur. 1091, V. C. E. ; 
 and see mile. p. 796. 
 
 Mind V. Whitmore, 2 K. & J. 458. 
 
 ■^ See Lorimer v. Lorinier, 1 J. & W. 
 284; Biirtlett v. Ilarton, 17 Jur. 1019, 
 M. it.
 
 812 
 
 DISMISSING BILLS, AND STAYING rROCEEDINGS. 
 
 C. XIX. 5 3. 
 
 yriicre offi- 
 cial manager 
 has been 
 substituted 
 as plaiutilV. 
 
 Order dis- 
 missing bill 
 may be 
 enrolled. 
 
 Dismissal of 
 bill, where 
 plea held 
 sufficient. 
 
 nlK'r\v:inls obtain the costs of llio motion, ns nn abandoned 
 ini>tion.^ 
 
 Where a bill is tlisiuissed with costs, thoy maybe taxed witli- 
 out any order referring- tliem for taxation, unless the Court i)ro- 
 liibits tlie taxation; and they will be recoveriible hy subpoena, in 
 the usual manner.'- Where the dismissal takes place before the 
 hearing, only those costs which arc costs in the cause are in- 
 cluded : ■'' therefore, when the costs of a motion or other a])])lication 
 in the cause are reserved, they should be made costs in the cause, 
 or reserved " until the hearing or further order," and not simply 
 "until the hearing." * 
 
 Wliere a bill was dismissed for want of prosecution, in ;i suit 
 in which the official manager of a company under process of wind- 
 ing up had, after institution of the suit, been substituted as 
 ])laintiff, the order provided that the defendants should be at 
 liberty to i^trove for their costs in the winding up.^ 
 
 The order dismissing a, bill for want of prosecution, may be 
 enrolled, although the only object in doing so be to prevent an 
 a]>peal.® 
 
 Where a plea to the whole bill is not set down for argument 
 within three weeks after the filing, and the jolaintift* does not 
 within such three weeks serve an order for leave to amend the 
 bill, or by notice in writing undertake to reply to the plea, the 
 defendant by whom such plea was filed may obtain, as of course, 
 an order to dismiss the bill.'' 
 
 Where 
 abated bv 
 death of sole 
 plaintiff: 
 notice to his 
 legal repre- 
 sentative, to 
 revive. 
 
 Section III. — Where the Suit has Abated, or become otherwise 
 
 Defective. 
 
 Where a suit abates by the death of a sole plaintiff, the Court, 
 upon motion of any defendant, made on notice served on the legal 
 representative of the deceased i:)laintiff, may order that such legal 
 representative do revive the suit within a limited time, or that the 
 bill be dismissed.® 
 
 ring before decree. As to proceedings in 
 the suit, after an abatement, but in igno- 
 rance of it, see Smith v. Horsfall, 24 IJeav. 
 331; Houston v. Briscoe, 7 W. K. 394, V. 
 C. K. In Massachusetts, " when the 
 death of auy party shall be suggested in 
 writing, and entered on the docket, the 
 clerk, upon application, may issue process 
 to bring into court the representative of 
 such deceased part}-." Rule 25 of the 
 Rules for I'ractice in Diancery; see also 
 56th and 57th Equity Ruhis of the United 
 States Courts. For form of order under 
 r. 4, see Seton, 1278, No. 5; and for form 
 of notice of miition, see Vol. III. 
 
 1 As to abandoned motions, see post, 
 Chap. XXXV. § 2, Motions; and Ord. 
 XL. 23. 
 
 2 Ord. XL. 38. 
 8 Stevens v. Keating, 1 M'N. & G. 659, 
 
 663; 14 Jur. 157. 
 * Kumbold v. Forteath, 4 Jur. N. S. 608, 
 
 V. c. w. 
 
 5 Caldwell V. Ernest (No. 2), 27 Beav. 
 42; S.Iur. N. S. 667. 
 
 6 Williams r. Page, 1 De G. & J. 561. 
 
 7 Ord. XIV. 17; ante, p. 695. As to 
 Inches in applvinsr, see Campbell i'. Joj-ce, 
 L. K. 2 Krj. 377, V. C. W. 
 
 8 Ord. XXXII. 4. This rule is only ap- 
 plicable to an abatement or defect occur-
 
 WHERE SUIT HAS ABATED, OR BECOME DEFECTIVE. 
 
 813 
 
 The words legal representative mean heir, or devisee, or execxi- 
 tor, or administrator, according as the suit relates to real or personal 
 estate.^ 
 
 Where the sole plaintiff died after decree, and after an injunc- 
 tion to restrain waste, Lord Langdale M. R. made an order, that 
 all ftirther proceedings should be stayed, and the injunction dis- 
 solved, unless the suit were revived within a limited time ; ^ but 
 Sir R. T. Kindersley V. C. declined to follow this case,^ on the 
 ground that the defendant could himself revive.* And where an 
 injunction had been obtained, restraining an action at law, and the 
 sole plaintift' died, Su- John Romilly M. R. said he had no jurisdic- 
 tion to make an order that the suit be revived by the plaintifi''s 
 representatives, or the bill be dismissed.^ If the bill is dismissed, 
 it will be dismissed without costs.® 
 
 A suit does not abate by the death of a sole plaintiiF, who is the 
 public officer of a joint-stock comj^any : "^ in such a case, therefore, 
 the defendant should apply to dismiss the bill in the usual form, 
 and not that it may be revived within a limited time or dismissed.* 
 
 Where a suit abates by the death of one of several co-plaintiffs, 
 the defendant may, on motion,® obtain an order that the surviving 
 plaintiffs do revive within a limited time, or, in defxult, that the 
 bill stand dismissed with costs ; ■'° and it is no answer to such an 
 application that there is no personal representative of the deceased 
 plaintiff,^^ No order will be made as to the costs of the motion.^^ 
 
 Where a suit abates by the marriage of a female sole plaintiff, a 
 similar order may be obtained against her husband ; ^^ and it seems 
 that the order will be made with costs." 
 
 Where the abatement is caused by the death of a defendant, his 
 representatives may move that the plaintiff do revive the suit 
 
 C. XIX. § 3. 
 
 Meaning of 
 ' ' legal repre- 
 sent .live." 
 Whore sole 
 plaintirt' dies 
 after decree : 
 
 Defendant 
 may revive. 
 
 Costs, on 
 dismissal. 
 
 Where plain- 
 till' sues as 
 public olHcer. 
 
 Death of one 
 co-plaintitl': 
 notice to sur- 
 vivor to 
 revive. 
 
 Marriage of 
 female solo 
 plaintif}". 
 
 Death of 
 defendant: 
 
 1 See Price v. Berrington, 11 Beav. 90. 
 
 2 J/ji'l. 
 
 8 Mills V. Dudgeon, 1 W. R. 514, V. 
 C. K. 
 
 * See Deva3'nes v. Morris, 1 M. & C. 
 in, 225. 
 
 6 OldHeld V. Cobbett, 20 Beav. 563. 
 
 C Chowick r. Dimes, 3 Beav. 2'JO, 492, 
 n. ; and cases in i/j. 294, n. ; Hill v. Gaunt, 
 7 Jur. N. .S. 42; 9 W. R. 68, V. C. W. 
 
 7 See 7 Geo. IV. c. 46, § 9. 
 
 8 Burinester V. Von Steiiz, 23 Beav. 32. 
 
 * For form of notice, see Vol. III. 
 
 10 Adatnson v. Hall, T. & R. 258, over- 
 ruling S- C. nom. Adainson v. Hull, 1 S.& 
 S. 249; Chichester i\ Hunter, 3 I'.eav. 491; 
 Lord Huiitiiigtower v. Sherborn, 5 Beav. 
 380; Holcombe v. Trotter, 1 Coll. 6.04; 
 Norton f. W'iiite, 2 De G., M. & G. 678; 
 Powell V. Powell, i/j. n.; Pudge r. Pitt, 3 
 W. It. 100, V. C. S.; Peaice i'. Wri^ton, 
 24 Beav. 253; Hinde i>. Morten, 13 W. H. 
 401, V. C. W. See Pells f. Coon, 1 Hopk. 
 450, in which it was held in New York, 
 
 that upon the abatement of a suit, by the 
 death of one of several co-plaintiti's, it is at 
 the election of the surviving co-plaiiitifrs 
 whether they will revive the suit. The 
 Court will limit the time within which 
 they shall make that election. And if 
 the}' do not revive the suit within the time 
 limited, the Court will order that they be 
 precluded from any further prosecution 
 of it. 
 
 11 Saner v. Deaven, 16 Beav. 30. 
 
 i''^ lliiide V. Morton, ubi svp. According 
 to the report of Hiiide v. Morton, in 2 11. 
 & M. 308, the order in the ca^e of the 
 death of a co-plaintiff, one of several resid- 
 uary legatees, shoulci be that the remain- 
 ing plaintiffs proceed, or the bill be dis- 
 mi>sed with costs; the death of the co- 
 phiintiff being marked on the record. 
 
 18 .(ohnson V. llorlock, 3 Heav. 294, n.; 
 Wilkinson v. Ch'.irlesworth, ih. 297, n. 
 
 * .lohnson v. Horlock, tiOi sup.; Boe, 
 however, Wilkinson t'. Charlesworth, ubi 
 sup , contra.
 
 814 
 
 DISMISSING BILLS, AND STAYING PROCEEDINGS. 
 
 C. XIX. § 3. 
 
 or of a co- 
 plaintirt". 
 
 After decree. 
 
 Distinction 
 between 
 order upon 
 abatement, 
 and order to 
 dismiss for 
 want of 
 prosecution. 
 
 Bankruptc}- 
 of defendant: 
 
 Ordinary 
 motion to 
 dismiss for 
 ■want of pros- 
 ecution may 
 be made. 
 
 Avitliiii a liinitod timo, or, in (k-tauU, that the bill may bo dismissed 
 as against them; and the order is, it seems, for the dismissal Avith- 
 oiit eosts.^ 
 
 Where a suit beeonies deteetive by the lianknqitey of a solo 
 plaintiff, the tlefeiidant may obtain, on speeial motion,- an order 
 that the assignee do witliiii a limited timo (usually three weeks) 
 take ])roper supplemental j)roeoedings for the purpose of prosecut- 
 ing the suit against the defendant, or, in default, that the bill bo 
 (.lismissed, without costs.' And where one of several co-plaintiffs 
 becomes bankrujtt, a similar order may be obtained against the 
 other co-plaintitfs ; ^ but in this case, the dismissal will be with 
 costs.^ 
 
 If the i)laintiff become bankrupt after decree, the Court will, on 
 the motion of the defendant, order that the assignees elect, within 
 a limited time, whether they will prosecute the suit, and, in default, 
 that all further proceedings be stayed,® And a similar order has 
 been made, with respect to a trustee under the act to facilitate 
 arrangements Avith creditors.'' 
 
 The order to tlismiss on occasions of abatement, or of the suit 
 becoming defective, must not be confounded with an ordinary 
 order to dismiss for want of prosecution. The two orders differ 
 from one another materially, both in the circumstances in which 
 they may be obtained, and the form of the order when it is made. 
 After a suit has abated, or after it has become defective by the 
 bankruptcy of the plaintiff, it is irregular to move for the ordinary 
 order to dismiss the bill for want of prosecution ; ^ and such an 
 order, if made, will be discharged for irregularity.^ 
 
 Where a suit becomes defective by the baidcruptcy of a defend- 
 ant, he may, as we have seen, notwithstanding his bankruptcy, 
 obtain the usual order to dismiss the bill for want of prosecution, 
 
 1 Buriiell V. Duke of Wellington, 6 Sim. 
 461 ; Norton v. White, 2 De G., M. & G. 
 67S; Powell «'. Powell, ib. n. ; Cross v. 
 Cro-s, 11 VV. R. 797, V. C. S.; Reeves v. 
 Baker, 13 Beav. 115, is incorrectly report- 
 ed; see 2 De G., iM. & G. 67'J, n. (6). So 
 the survivors up in the death ol one of 
 several defendants msiy move that the 
 plaintiff revive, or the bill be dismissed. 
 Harrington v. Becker, 2 Barb. Ch. U47. 
 
 ■•^ As to serving notice of the motion on 
 the bankrupt, as well as on the assignees, 
 see Vestris v. Hooper, 8 Sim. 570. 
 
 8 Ante, pp. 64, 608; Sharp v. Hullett, 
 2 S. & S. 496; Wheeler v. Malins, 4 Mad. 
 171; Porter j;. Cox, 5 Mad. kO; Lord Hun- 
 tingtower v. Sherborn, tibisup. ; Robinson 
 t\ Norton, 10 Beav. 4b4; Fisher v. l-'isher, 
 6 Hare, 628; 2 I'hil. 236; Meiklam v. El- 
 more, 4 De G. & J. 208; 5 Jur. N. S 004; 
 Jack.son V. Riga Railway, 28 Beav. 75; 
 Boucicault (!. Delatield, 10 Jur. N. S. 937; 
 12 W. R. 1025, V. G. W.; 10 Jur. N. S. 
 
 1063 ; 13 W. R 64, L. JT. ; where the bank- 
 ruptcy has occurred in a foreign country, 
 see Bourbaud v. Bourbaud, 12 \V. R. 1024, 
 V. C. W. As to the effect of a trust ileed 
 by the plaintiff, under 24 & 25 Vic. c. 134, 
 see § 197. For form of order, see Seton, 
 1278, No. 6; and for form of notice of mo- 
 tion, see Vol. 111. 
 
 4 Ward V. Ward, 8 Beav. 397; 11 15eav. 
 159; 12 Jur. 592; Kilminster v. Pratt, 1 
 Hare, C32; see, however, Caddick v. Mas- 
 son, 1 Sim. 601. 
 
 6 Ward r. Ward, and Kilminster v. 
 Pratt, itbi Slip. 
 
 6 Wliitmore v. Oxborrow, 1 Coll. 91; 
 Clarke v. Tipping, 16 Beiv. 12. 
 
 V Hanlv v. Dar,n.-ll, 4 De G. & S. 568; 
 see 7 & 8' Vic. c. 70; 24 & 25 Vic. c. 134, 
 § 107. 
 
 « liobinson v. Norton, 10 Beav. 484. 
 
 9 lioddy V. Kent, 1 Mer. 361, 365; Sel- 
 lers V. Dawson, 2 Dick. 738; S. C. num. 
 Sellas V. Dawson, 2 Anst. 458, n.
 
 CASES OF ELECTION. 
 
 815 
 
 with costs ; ^ but he cannot obtain an order of a similar kind to C. XIX. § 4. 
 that granted on the bankruptcy of a jilaintiff".^ 
 
 Section IV. — Cases of Election. 
 
 Where the plaintiff is suing both at Law and in Equity, at the 
 same time, for the same matter, the defendant is entitled to an 
 order that the plaintiff do elect whether he will proceed with the 
 suit in Equity, or with the action at Law.^ Thus, the Court will 
 generally compel a plaintiff to elect between a suit in Equity for 
 the specific performance of an agreement, and an action at Law 
 brought in respect of the same agreement.* So also, as a general 
 rule, a party suing in Equity will not be allowed to sue at LaAV for 
 the same debt. The case of a mortgagee is an exception to this 
 rule ; it is frequently said, that he may pursue all his remedies con- 
 currently ; at any rate, he can proceed on his mortgage in Equity, 
 and on his bond or covenant at Law at the same time.^ In the 
 case of Barker v. SmarJc,^ however, Lord Langdale M, R. refused 
 to extend the exception to the case of a vendor, who had com- 
 menced an action at Law upon a bond for his unpaid purchase- 
 money, and at the same time was suing in Equity to establish a 
 lien upon the estate for the same sum. 
 
 The principle of election has also been apphed where there was 
 one suit in this country, and another for the same matter in a for- 
 eign Court of competent jurisdiction ' 
 
 It seems that, in a particular case, the plaintiff may be allowed 
 to proceed partially in Equity, and partially at Law, and com2>ellcd 
 to enter into a special election.® 
 
 In ■what cases 
 plaintitt" is 
 compellable 
 to elect 
 between his 
 suit and 
 action: 
 
 Specific per- 
 formance : 
 
 Mortgagee ; 
 
 Vendor. 
 
 Where one 
 
 suit is 
 
 in a 
 
 foreign 
 
 country. 
 
 Special 
 
 election. 
 
 1 Blackmore v. Smith, 1 M'N. & G. 80; 
 13Jur. '21^; Hobsoii v. Karl of Devon, 3 
 Sni. & G. 227; 2 Jur. N. S. 665; Levi v. 
 lleiitage, 26 Beav. 560; S. C. num. Lever 
 V. Heritiige, 5 Jur. N. -S. 215; but see 
 Kemb.ill v. Walduck, 1 Sm. & G. 27; 18 
 Jur. ii'j, V. C. S., where the dismissal was 
 without costs. 
 
 2 Mauson v. Burton, 1 Y. & C. C. C. 626. 
 
 3 \A. lied. 249; Carlisle v. Cooper, 3 C. 
 E. (ireeti (N. J.), 241; Livingston v Katie, 
 a.Johii. Ch. 224; Sanger v. Wood, ib. 410; 
 Koiicrs r. Vosburgh, 4 Ji.hn. (,'h. 84; Gibbs 
 t. I'erkin'^on, 4 Hen. & .NL 41."); (uitt, 634 
 note. Wheie the; remedies at Law and in 
 E(|Uity ure inconsistent, any decisive act 
 of the party, under either juiisdiciion, 
 with knowle(i(;e of his rijjhls and of the 
 fact-*, determines liis election. Sanger v. 
 W'o'.d, x,f)i sriprn; see Combs v. larlt^n, 
 2 B. Mon. 1!J4; fintt, p. 034, note. l'"or form 
 of order, tee 2 Seton Dec. (3d Eng. ed.) 
 1*47. 
 
 * Currick v. Young, 4 Mad. 437; Am- 
 
 brose V. Nott, 2 Hare, 049, 051; see also 
 Fennings v. Hum])hery, 4 Beav. 1; 5 Jur. 
 455; Faulkner ?•. Llewellyn, 10 W. R. 
 506, V. C. K. ; Gedve i'. Duke of Mon- 
 trose, 5 W. K. 537; S. C. 26 Beav. 45, 47. 
 "Where the plaintiff sued at Law and in 
 Equity for the same debt, "but the iiction 
 was dismissed on (layment of the debt and 
 costs at Law, the Court ordered the suit to 
 be stayed on payment of costs by the de- 
 fendant. Deane v. Ilamber, 14 \V. li. 107, 
 V. C. S. 
 
 5 Schf)ole V. Sail, 1 Sch. & Lef. 176; 
 Booth V. Booth, 2 Atk. 343; Willes v. 
 Levett, 1 De G. & S. 31)2. 
 
 3 Beav. 64. 
 
 7 Bieter.s v. Thompson, (J. Coop. 204. 
 
 8 Barker v. Dumare^cjue, 2 Aik. 119; 
 Seton, 949; Ancn., 1 Vern. 104; 3 Atk. 
 129; Trinileslon v. Kenimjs, LI. & Ciooid. 
 29; Mills 0. Fry, G. Coop. 107; 19 Ves. 
 277. For form ot' the order, see 3 Seton, 
 Dec. (3d Eng. ed.) 948.
 
 816 
 
 DISMISSING BILLS, AND STATING TROCEEDINGS. 
 
 C. XIX. § 4. 
 
 
 T 
 
 Time 
 
 • when 
 
 application 
 
 for v\ 
 
 I'oti.m 
 
 order 
 
 ■ may be 
 
 made 
 bow. 
 
 ", iUld 
 
 Where bill 
 amended. 
 
 Where no 
 
 answer 
 
 required. 
 
 Plea, or joint 
 plea and an- 
 swer will not 
 entitle de- 
 fendant to 
 election 
 order. 
 
 Effect of the 
 order. 
 
 If the ilolViulaiit's answor is not oxcoptod to, or set down for 
 hearing; on fonner exceptions, he may, on an allegation that the 
 j)laintiff is i)roseeuting liini in this Court, and also at Law, for the 
 same nmtter, ohtain, at the expiration of eight days after his 
 answer, or further answer is filed, as of course, on motion or jteti- 
 tion, the usual order for tJie plaint itl" to make his election in which 
 •Court lie will proceed. If his answ^er is excepted to, he may, 
 by notice in wiiting, require the plaintiff to set down the excep- 
 tions, within four days from the service of the notice;^ and if the 
 plaintiff does not set dow^i tlie exceptions within such four days, or 
 if they are not allowed, the defendant is entitled as of course, on 
 motion or petition, to obtain the usual order for the })laintiff to 
 make his election in which Court he will proceed.^ Where the 
 plaintiff has amended his bill, the defendant cannot ol)tain 
 the order to elect until the time for excepting to his answer to the 
 amendments has expired, notwithstanding the time for excej)ting 
 to his answer to the original bill has expired.^ 
 
 If the defendant is not recpured to answer, he may, at the expi- 
 ration of the time within which he might have been served with 
 interrogatories to the bill, in like manner obtain a similar order to 
 elect.* 
 
 "We have before seen that, for some purposes, a plea is included 
 in the term answer ; ^ but under the old practice it was decided, 
 that neither a plea nor a joint j^lea and answer was so fiir an 
 answer to the bill as to entitle a defendant to move for an order 
 for the plaintiff to elect ; ® and it does not seem that there is any 
 thing in the present practice to affect this decision. 
 
 The order must be served on the plaintiff or his solicitor, and 
 attorney at Law ; and within eight days after such service, the 
 plaintiff must make his election in which Court he will proceed ; '' 
 and if he elect to proceed in this Court, then his proceedings at 
 Law are thereby stayed by injunction ; but if he elect to proceed 
 at Law", or in default of his making his election within the sj)ecitied 
 time, then his bill from thenceforth stands dismissed out of this 
 Court, with costs to be taxed by the Taxing Master, without further 
 order : such costs to be paid by the plaintiff to the defendant,^ It 
 
 1 For form of notice, see Vol. III. 
 
 2 Ord. XLII. 5, 6; ante, pp. 766, 767; 
 Royle V. Wynne, C. & P. -252, 255 ; 5 Jur. 
 1002 ; the vacations are not excluded. Ord. 
 XXX Vn. 13. For t'orni of order to elect, 
 see Seton, 947, No. 1; and for forms of 
 motion paper and petition, see Vol. III. 
 
 3 Leicester v. Leicester, 10 Sim. h7, 89; 
 Affd. lb. 'Jl, n.; 3 Jur. 308. 
 
 * Ord. XLII. 7; and see Braithwaite's 
 Manual, 106, n. (5). For forms, see Vol. 
 III. 
 
 6 See ante, p. 690. 
 
 6 Fisher v. Mee, 3 Mer. 45, 47 ; Vaughaa 
 V. Welsh, Mos. 210. 
 
 ■^ The Court will allow the party a rea-' 
 sonable time to make his election. Crocken 
 V. Martin, 3 Yerger, 55; see Houston v. 
 Sadler, 4 Stew. & Port. 130; Kogers v. 
 Vosburg, 4 John. Ch 84. 
 
 8 See the order in Seton, 947, No. 1; 
 see also lioyd v. Heinzelman, 1 V. & B. 
 381 ; Moui^lev v. Basnett, ib. 382, n. ; Jones 
 V. Earl Strafford, 3 P. Wms. 90, n. (B.); 
 see Livingston v. Kane, 3 John. Ch. 224; 
 Kogers v. Vosburg, 4 John. Ch. 84.
 
 CASES OF ELECTION. 
 
 817 
 
 is not the practice to issue an injunction : the service of the order C. XIX. § 4. 
 being sufficient.^ ' r •—' 
 
 When the defendant has obtained such an order, the i>huntiif Application 
 
 . . ,• to ilischarge 
 
 may move, on notice to the defendant, to discharge it, either tor order. 
 
 iiTegularity or upon the merits confessed in the answer, or proved 
 
 by affidavit.- If^ upon such a motion, there should be any doubt Inquiry may 
 
 as to whether the suit in Equity, and the action at Law, are for the 
 
 same matter, it is the usual course to direct an inquiiy into that fact.^ 
 
 In the event of such an inquiry being directed, it seems that all Stay of pro- 
 
 the proceedings in both Courts are stayed in the mean time,* unless pending' 
 
 the plaintiff can show that justice "svill be better done by permitting mquiry- 
 
 proceedings to some extent : in which case, special leave will be 
 
 given him to proceed.^ 
 
 If the common order cannot, under, the circumstances, be ob- Special 
 tained, it seems that the Court will, if necessary, make a special to^to!'"" 
 order, and grant an injunction in the mean time.® 
 
 The election must be in writing, and signed by the plaintiff or iMannerof 
 his solicitor,^ and be filed at the Report Office ; and notice thereof «^^®c''"e- 
 must be given to the defendant's solicitor : who thereupon obtains 
 an office copy.^ 
 
 Tlie dismissal of the bill, in consequence of an election by the Dismissal, 
 plaintiff to proceed at Law, cannot be pleaded m bar to anotliei- cannot be 
 suit for the same matter.^ t*^'*^ ^ 
 
 If the plaintiff requires further time to make his election, he Further time 
 must apply to the Court by motion, on notice, to have the time o^fai^Jg^.^"^^ 
 enlarged. ^"^ 
 
 x\.fter decree, it is not the practice to make an order to elect ; After ^^ecree, 
 but the plaintiff will be restrained, on the motion of the defendant, not he put to 
 from proceeding in another Court, in respect of the same matter : '-'•'^^V ^^ 
 even though such proceedings are merely auxiliary to the proceed- 
 ings in P^quity.^^ 
 
 If the plaintiff elect to proceed in Equity, the defendant will Costs, on 
 either be allowed to recover the costs of the action in the Court of 
 
 1 Braithwalte's Pr. 229 ; see Fennings ^ For forms of election and notice, see 
 V. Humpliery, 4 Beav. 1, 7, 8; 5 Jur. 455. Vol. III. 
 
 2 (jrd. XLII. 8. For form of notice of '•• Grmntess of Plymouth v. Bhulon, 2 
 motion, .see Vol. III. Vern. 32.» 
 
 3 Mousley v. Bnsnett, 1 V. & B. 382, i* For form of order enlarging the time, 
 n. ; and for form of order for inquiry, see see Seton, U48, No. 2; and for form of 
 Setoti, 'J48, No. 3. notice ot motion, see Vol. HI. 
 
 < MMJsi'. Frv, 3 Ves. & B. 9; Anon., 2 n Wiis<.n v. Wetlierlierd, 2 Mcr. 406, 
 
 Mad. 395. ■ 408; Frank v. Ba.snctt,2 M.^c K. 018,620; 
 
 5 Aniory r. Brodrick, Jac. 530, 533; Wedderhurn r. Wedderburn, 2 Beav. 208, 
 
 Ciirwick V. Young, 2 Swanst. 239, 243; 213; 4 .Iiir. 00; 4 M. & C. 585, 596; Phelps 
 
 Mousley v. Basnetf, ubi sup.; see, how- v. I'rotliero, 7 I)c G., M. & G. 722; 2 Jur. 
 
 ever, Kennings v. llumphcrj-, 4 Beav. 1, N. S. 173. Going in under an a'iniinis- 
 
 8; 6 Jur. 455. tration decree to prove a del)t, is not sucli 
 
 8 Hogue r. Curtis, 1 J. & W. 449. an election to proceed in Kcjuily as ])re- 
 
 ■' Ord. III. 1. vents an action at Law. Sexton v. Smith, 
 
 3 Dc G. & S. 094. 
 
 52
 
 818 DISMISSING BILLS, AND STATING TROCEEDINGS. 
 
 r. XIX. § 4. L:nv,^ or the plaintitt'will l>o dircotcd by tlio Court of Cliaiiccry to 
 
 *■ >i ' pay tlioin ; - niul if ho cloct to procood at Law, tlie bill is, us we have 
 
 soon, by tlu' ordtM- dismissod with costs.** 
 
 1 Simpson r. Siuld, 3 W. K. 191, L. C; 2 gee Carwick v. Young, 2 Swanst.239, 
 
 SCO also S. C. 10 C. H. 20; 1 Jur. N. S. 242. 
 
 730; and Moitimore r. Soarcs, 5 Jur. N. » Ante, p. 81G. 
 S. 674, Q. B.
 
 CHAPTER XX. 
 
 MOTION FOR A DECREE. 
 
 At any time after the expiration of the time allowed to the 
 defendant for answering,^ but before replication, the plaintiff may- 
 move the Coiii-t for such decree or decretal order as he may think 
 himself entitled to.- Of this motion, one month's, or twenty-eight 
 days' notice must be given to the defendant.^ 
 
 If further time is granted to the defendant for pleading, answer- 
 ing, or demurring, the plaintiff cannot move for a decree until such 
 ftirther time has expired ; * and where there are several defendants, 
 and the plaintiff is in a position to serve a notice of motion for a 
 decree, or to file replication, or set down the cause on bill and an- 
 swer, as to some of them, but the time for so doing as to the 
 others has not arrived, he should, to avoid an application to dismiss 
 the bill for want of prosecution,'' obtain further time, on special 
 summons, to serve the notice or file the replication.^ 
 
 The filing of a traversing note against a defendant, does not 
 preclude the plaintiff from moving for a decree.'' 
 
 Where, at the hearing, a cause was ordered to stand over for 
 the purpose of adding parties by amendment, the cause was 
 allowed to be heard on motion for decree against the new defend- 
 ants : though repUcation had been filed against the original 
 defendants.^ 
 
 An order of course to amend the bill may be obtained after 
 notice of motion for a decree has been served, but before it has 
 been set down: although the defendant has filed affidavits in 
 opposition.^ 
 
 When it may 
 be made: 
 
 one month's 
 notice 
 required. 
 Where 
 further time 
 granted for 
 defending. 
 Further time 
 to serve the 
 notice. 
 
 Where 
 traversing 
 note has been 
 filed. 
 
 Cause may 
 be heard on 
 motion for 
 decree as to 
 defendants, 
 added after 
 replication. 
 Order of 
 course to 
 amend bill, 
 after service 
 of notice. 
 
 1 Or, by consent, before the expiration 
 of the time. IJraithwaile's I'r. 429. For 
 form of consent, see \'ol. III. 
 
 •■i 15 & IG Vic. c. 80, § 10. If the plain- 
 tifl' moves for a decree, replication need 
 not afterwards be file<l. Duflield v. Sturges, 
 9 Hare Ap. 87; lilake v. Cox, 1 W. R. 
 124, V. C. W. 
 
 8 Ord. XXXIII. 4; XXXVII. 10. 
 
 * 15 & K; Vic. c. b(J, § 13. 
 
 '' See finle, ]> Hni ct seq. 
 
 Ord. X X X \ 1 1 . 17. For form of sum- 
 mons, sec Vol. III. 
 
 '' Maniere v. Leicester, Kay Ap. 48; 18 
 Jur. 320; 5 De G., M. & G. 75; Jones v. 
 Howell, 3 W. K. 559, V. C W. As to 
 traversing notes, see ante, p. 513, tt seq. 
 The causes of Gohegiui v. Harlow (1863, 
 G. 132), and Leite v. Vicini (1803, h. 40), 
 ■were set down on motion for decn-e as to 
 some of the defendimts, and on orders to 
 take the h\\\ ])ro coii/esso as to others. 
 
 8 Gwyoi) V. Gwyon, 1 K. & .1. 211. 
 
 9 Gill V. Kayner, 1 K. & J. 396.
 
 820 
 
 MOTION FOR A DECREE. 
 
 C. \X. 
 
 Scn-ico out 
 of the 
 
 jurisdiction: 
 onliT for, liow 
 obtjiiued. 
 
 Form. 
 
 Notice of mo- 
 tion cannot be 
 Gazetted, as 
 suljstituted 
 service. 
 
 Notice of mo- 
 tion admits 
 sufficiency of 
 answer. 
 
 Tlio form of iiotico of motion for (Iihmto commonly ndo])to(l is 
 to tlu' oflbft, thnt till' Court will be movi'd for ;i diH'roo, "according 
 to the ])r:iyer of tlio jiliiintitfs bill;'" .ind wlicit' this form is used 
 the j)laintitf is cntitliMl to luivo the same relief as lie miglit have 
 liad if the lause had been l>ron<i-ht to :i hearing in tlie ordinary 
 way.^ 
 
 The notice of motion may be serveil ont of the Jurisdiction; but 
 an order allowing this to be done is necessary.^ Such an order 
 may be obtained on an ecc ^:)rtr^e motion or summons, supjiorted by 
 an afhdavit showing where the defenchmt is resident, or may 
 ])robably be found.^ In such a case, the order giving leave to serve 
 the notice out of the jurisdiction must specify the time allowed 
 for filing affidavits in answer and reply, and must be drawn up and 
 served wdth the notice of motion ; * and the notice of motion must 
 be given for a day sufficiently distant to include the wdiole time 
 limited for service, and the times limited for the defendant to file 
 affidavits in answ^er, and the plaintiff to file aft'davits in reply, and 
 so as to allow the defendant proper time to obtain cojiies of the 
 plaintiff's affidavits in support and in reply. These times must, 
 therefore, be regulated by the place where the service is to be 
 effected.*^ In some cases, the order giving leave to effect the ser- 
 vice has directed copies of the plaintiff's affidavits in support of 
 the motion for decree to be served with the notice ; ® but it seems 
 this cannot be* required.'' 
 
 Where an apj^lication was made to the Coitrt for leave to adver- 
 tise in the Gazette a notice of motion for a decree, against an 
 absconding defendant, for whom an appearance had been entered,^ 
 it was refused by Sir John Komilly M. R. : who observed, that the 
 6th Rule of the lUth Consolidated Order had no application to 
 such a case ; but he gave leave to advertise the filing of replication 
 in the Gazette.® 
 
 By giving notice of motion for a decree, the plaintiff abandons 
 his claim to a further answer: although the answer has, upon ex- 
 ceptions, been held insufficient.-^" 
 
 The plaintiff and defendant respectively are at liberty to file 
 affidavits in suj^port of, and in opposition to, the motion ; and to 
 
 1 Norton v. Steinkopf, Kay, 45; ib. Ap. 
 10. For form of notice, see Vol. III. 
 
 2 Meek v. Ward, 10 Hare Ap. 55; 1 W. 
 R. 504; and see Jliddleton t". Chichester, 
 1 N. R. 255, M. R. 
 
 8 For form of order, see Seton, 1246, 
 No. 11 ; . and see ib. 1247 ; and for forms of 
 motion paper, summons, and affidavit, see 
 Vol. III. 
 
 * Meek V. Ward, nbi sup.; Seton, 28, 
 1247; as to evidence of the service, see 
 Mendes v. Guedalla, 5 L. T. N. S. 308, V. 
 C. W. 
 
 6 Seton, 28, 1247, where a list of times 
 is given. 
 
 6 Meek v. Ward, 10 Ilarc Ap. 55. 
 
 7 Seton, 28, 1247; and for form of order 
 containing such direction, see Seton, 1246, 
 No. 11. 
 
 8 Under Ord. X. 6. 
 
 9 Lechmere v. Clapp, 29Beav. 259; see 
 2)0St, pp. 831, 832. 
 
 10 Boyse v. Cokell, 18 Jur. 770, V. C. 
 W.
 
 MOTION FOR A DECREE. 
 
 821 
 
 use the same on the hearing thereof.^ The evidence in chief on 
 such motion is ordinarily taken upon affidavit ; ^ and where motion 
 is made after answer filed, the answer is, for the purposes of the 
 motion, to be treated as an affidavit ; " and the plaintilf has been 
 allowed to cross-examine the defendant thereon.* 
 
 The plaintiff must file his affidavits, in support of the motion 
 for decree, before he serves the notice, and must set forth a list of 
 the affidavits he intends to use at the foot of the notice.^ Where 
 an answer has been filed, the plaintiff* may read it on the motion 
 against the defendant by whom it was filed, without giving any 
 notice of his intention to do so; but he cannot- read it against any 
 other defendants, unless he has included it in the list at the foot 
 of his notice of motion.*^ 
 
 The defendant must file his affidavits, in support of his defence, 
 within fourteen days after service of the notice of motion, and 
 deliver to the plaintiff or his solicitor a list thereof' 
 
 The time for filing the defendant's affidavits will, however, be 
 enlarged, on special ap2>lication to the Judge in Chambers, by 
 summons,^ where a sufficient reason is shown for so doing ; ^ but 
 the desire of the defendant to cross-examine the plaintifl*'s wit- 
 nesses on their affidavits, before filing his own, on the ground that 
 by so doing it might not be necessary for him to file any, is not a 
 sufficient reason.^" 
 
 Where the defendant is served out of the jurisdiction, the special 
 order allowing such seiwice will, as we have seen,^^ fix the time 
 within which the defendant's affidavits are to be filed ; but further 
 time may, in a proper case, be obtained on special application by 
 summons at Chambers. 
 
 If, after the times allowed for filing affidavits have elapsed, it is 
 desired to file an affidavit, or a further affidavit, an order for leave 
 to do so will be necessary. Such order may be obtained on a 
 special application by summons,^'-^ supported by an affidavit showing 
 a case for the indulgence ; and the applicant will usually have to 
 pay the costs of the apidicution. 
 
 1 15 & IC Vic. c. 8G, § 15. 
 
 2 See/>os<, Chap. XXn. § 10, AJldnvils 
 for general rules as to the form, and mode 
 of friiniiiifj iiflidavits. 
 
 3 15 & 10 Vic. c. 86, § 15. Semble, an 
 answer put in by a deceased defendant 
 cannot Ix; roiid. Moore v. Harper, 1 W. 
 N.56; 14 W. li. .3(tO,V. C. W. 
 
 * WlRlitnian v. \Vhcv\Um,'Z:i Hcav. 397; 
 3.Jur. N. S. 124; Ktlnlcn v. We.slev, 26 
 Heav. 432; Brumfit v. Ilart, <J Jur. N. S. 
 12; 11 W. K. 63, V. C. S.; and see post, 
 p. 822. 
 
 ^ Oni. XXXIII. 5, see form of notice, 
 Vol. III. 
 
 " Cou.sin8 V. Vasey, 9 Uare Ap. Gl; 
 
 $J 
 
 Dawkins v. Mortan, 1 J. & H. 339; Ste- 
 iheiis «. Heathcote, 1 Dr. & S. 138; 6 Jur. 
 '. S. 312. 
 
 7 Ord. XXIII. 6. As to the defences 
 which may be set up, wliere an answer has 
 not been liled, see ante, pp. 056, 712; and 
 (ireen v- Snead, 30 Heav. 231; S. U. noin. 
 Snoad r. (ireen, 8 .Jur. N.S. 4. 
 
 8 l'"()r form of summons, see Vol. III. 
 
 9 Onl. XXXIII. 17, IK; Marchioness of 
 Londonderry v. Uraniwell, 3 K. &. J. 102. 
 
 n Ante, p. 820. 
 
 12 Ord. XXXVII. 17, 18. For form of 
 summons, see Vol. III. 
 
 C. XX. 
 
 Evidence on 
 motion for 
 decree ; 
 usually by 
 affidavit. 
 
 Plaintiff's 
 affidavits : 
 when to be 
 liled ; 
 
 When answer 
 may be read 
 by plaintiff. 
 
 Defendant's 
 affidavits : 
 when to be 
 filed; 
 
 enlarged 
 time: how 
 obtained. 
 
 Where 
 defendant 
 served out of 
 the jurisdic- 
 tion. 
 
 Leave to file 
 affidavits, 
 after time 
 elapsed.
 
 822 
 
 MOTION FOR A DECREE. 
 
 ('. XX. 
 
 Enlarged 
 time: how 
 obtained. 
 
 Xotice to 
 Re.icistrar of 
 enlargement 
 of time; 
 
 how given. 
 
 Where time 
 expires in 
 the long 
 vacation. 
 
 No further 
 evidence 
 without 
 leave, except 
 cross-exam- 
 inations. 
 
 If tlio (li'Tcndnnt dosiros to read his own, or a co-dofendant's 
 niiswor in supiiort t)f his caso, ho must give notice thereof to tlie 
 lihiiutillV l)nt if the phiintitV reads i)art of a defendant's answer 
 auainst liini, withont notiee, (he defendant may read the whole of 
 liis answ er, m ilhont notiee.- 
 
 Tlie defenihmt liavinu; tiled his aflidavits, tlie ])laintiff has seven 
 days from (he exjiiration of the fourteen days, or, if (he time has 
 been enlarged, from the expiration of such enlarged time,^ within 
 wliich he may file affidavits in reply: which affidavits must be 
 confined to matters strictly in rei)ly. The plaintiff must deliver a 
 list of these affidaA'its to the defendant or his solicator ;^ and except 
 so fiir as such aifidavits are in rejtly, they will not be regarded by 
 the Court, unless, upon the hearing of the motion, the Court gives 
 the defendant leave to answer them: in which case, unless the 
 Court otherwise directs, the plaintiff is to pay the costs of such 
 affidavits, and such further affidavits in answer.^ The time can, 
 however, be enlarged by the Judge in Chambers, on a special ap- 
 plication by summons.® 
 
 Where either the time for the defendant's filing his affidavits, or 
 for the ])laintiff's filing his affidavits in reply, is enlarged, notice 
 thereof is to be given to the Clerk of Records and Writs by pro- 
 duction of the order for such enlargement.'^ Such notice is ordi- 
 narily given by producing to the Order of Course Clerk the order 
 enlarging the time, and he will thereupon make a note of such 
 enlargement, opposite the entry of the notice of motion in the 
 cause list. 
 
 Where either the fourteen days for the defendant's filing his 
 affidavits, or the seven days for the plaintiff's filing his affidavits 
 in reply, expire in the Long Vacation, the time is extended to the 
 fifth day of the ensuing Michaelmas Term, and Avill expire on that 
 day, unless enlarged by order; and if the fourteen days are thus 
 extended, the seven days commence to run from the expiration of 
 such extended period.^ 
 
 No further evidence, on either side, will be allowed to be used 
 on the hearing of the motion without leave of the Court,^ except 
 
 7 Ord. 22 Nov., 1866, r. 5. 
 
 8 Ord. XXXVir. 15. A doubt has 
 arisen whether this rule applies to a case 
 where the fourteen days, or the seven 
 da\'s, are enhirged before the Long Vaca- 
 tJi/n to a day occurring in the Vacation; 
 see Morgan, 553, and Clark v. Malpas, 
 there cited, and see Braithwaite's Manual, 
 167, n. (46). 
 
 9 Ord. XXXril. 8. For cases in which 
 special leave was given, see Watson v. 
 Cleaver, 20 Beav. 137; 1 .Jur. N. S. 270; 
 and Richards v. Curlewis, 18 Beav. 462, 
 where it was held, that the application 
 roust not be exjmrte. 
 
 1 Stephens v. Heathcote, 1 Dr. & S. 
 138; 6 Jur. N. S. 312, and see Barrack 
 V. M'Cullock, 3 K. & J. 110; Rushout v. 
 Turner, 1 Dr. & S. 140, n. ; Wightman v. 
 Wheelton, 23 Beav. 397; 3 ,Jur. N. S. 124. 
 For form of notice, see Vol. III. 
 
 2 Stephens v. Heathcote, it/ji sup. 
 
 3 Where the defendant is served out of 
 the jurisdiction with the notice, the time 
 to reply will be regulated bj' the service 
 order; see ante, [>. 810. 
 
 * For form of li^t, see Vol. III. 
 
 5 Ord. XXXIII. 7. 
 
 6 See Ord. XXXVII. 17, 18. For form 
 of summons, see Vol. III.
 
 MOTION FOR A DECREE. 823 
 
 tlie cross-examinations of such witnesses as have been cross- C. XX. 
 
 examined.^ ' y — — ^ 
 
 All \vitnesses wlio have made affidavits, either on behalf of the Cross-exam- 
 
 plamtilF or the defendant, are Uable to cross-examination ; - and the ^jj^e^gg^g^. 
 
 party desii'ing to cross-examine any of them, may, at any time Notice to 
 
 before the expiration of fourteen days next after the end of the produce 
 
 . . . . . . deponent. 
 
 time allowed for the plaintiif to file affidavits in reply, or within 
 such time as the Court or Judge in Chambers may specially ap- 
 point,'' give notice in writing* to the party on whose behatf the 
 affidavit is filed, or his solicitor, to produce the witness for cross- 
 examination before the examiner ; and unless •the witness is pro- 
 duced accordingly, the affidavit cannot be used as evidence, without 
 special leave of the Court.^ The plaintiif is entitled to cross- Cross-exam- 
 
 -, ^ ^ ,. . ,, , i-,-jv> ination of de- 
 
 examine any defendant upon his answer;" and where the plaintiii tendant upon 
 gives notice of Ms intention to use a defendant's answer against a "^^ answer. 
 co-defendant, the co-defendant may cross-examine upon the an- 
 swer ; ^ and Avhere a defendant gives notice to use his or a 
 co-defendant's answer against the plaintiff, he, or the co-defendant, 
 as the case may be, may be cross-examined by the plaintiff: ^ the 
 answer in such cases being treated as an affidavit. And even 
 where the plaintiff had given notice to use the defendant's 
 answers as affidavits, in su])port of his motion for a decree, he was 
 allowed to cross-examine the defendants on the answers, without 
 prejudice to the right of the other defendants to object to the 
 cross-examination being used against them ; ® but when no notice 
 is given of the intention to read the answer of the defendant, and 
 it is read as an admission, and not as an affidavit, he cannot be 
 cross-examined upon it.-^" 
 
 According to the practice introduced by the Order of 5th Feb., Wliether 
 1861, it seems that all the evidence in chief on motions for decree chief can 'be 
 must be taken by affidavit." The Court has, however, i)ower, it is taken orally, 
 
 T . . , 1 • • 1 1 0^ motion for 
 
 presumed, in any case, upon special application, to order the decree. 
 evidence of any particular witness or witnesses to be taken viva 
 voce. Such an aj)plication could only be made on the part of the 
 defendant, as the plaintiff would, of course, ascertain, before 
 
 I Bedwell f. Prudence, 1 Dr. & S. 221, Beav. 432; Brunifit v. Hart, 9 Jur. N. S. 
 
 223. 12; 11 AV. U. 53, V. C. S. 
 
 '■^ 15 & 16 Vic. c. 86, § 40; Williams v. 7 Keluien v. Wesley, nnd Wightman 
 
 VVilliiinis; 17 Beav. 15G; 17 .lur. 434. v. Wlieelton, iibi sup.; Dawkins c. Mor- 
 
 8 TIk; application is usually made by tan, IJ. & H. 339. 
 
 gumnioiis; for a form, see Vol. III. 8 See llehden r. Wesley, and Wiglitmai 
 
 * For a form, see Vol. III. v. Wheelton, ul^i sup. 
 
 6 Old. 5 Feb., 1861, r. 19. As to the » Kehden »,'. Wesley, ?<i( sj//;. 
 
 conrse to be i)ur-uod by either party after w See Dawkins v. Mortaii, 1 .1. & H 
 
 such notice, see /»«<, "Cliap. XXII. § 10, 339, 341; (Jousins v. Vasey, 9 Hare Ap. 
 
 Affifliivils, and Braithwaito's Manual, 178, 61; Stevens v. Ileathcote, 1 Dr. & S. 138, 
 
 n. (8.1). 6 Jur. N. S. 812. 
 
 8 Wiffhtmanr. WheeKon, 23Boav. 397; " See Ord. 6 IVb., 1861, particularly r. 
 
 3 Jur. N. S. 124; Hehden v. Wesley, 26 19, and see Smith v. Uaker, 4 N. K. 321, 
 
 V. C. W.j 2 II. & M. 498.
 
 824 
 
 MOTION FOR A DECREE. 
 
 r. XX. 
 
 Cross-oxnin- 
 iiintion on 
 ilrtidavits: 
 how taken. 
 Time for 
 cross-exam- 
 ining. 
 
 Suit and 
 cross-suit. 
 
 Suipcena 
 duces tecum. 
 
 Setting down 
 motion. 
 
 sorviiii; his iiotioo of motion for a decree, Avhetlicr it Avns necessary 
 or desirable to ex.nniine any Mitness on liis belialf orally, and if so, 
 would l)rino- the cause to a hearinu; in the ordinary way, instead of 
 serving- tlu> notice. In'fore the Order of 5th February, 18G1, it 
 seems to liave l»een thouiiht, that the evidence in support of a 
 motion for decree might be taken orally, by specifyinu; the names 
 of the witnesses to be cxamhied, in the notice of motion, and 
 sumnu>nini>: them before the examiner;^ but, whether this could 
 then have been done or not, it is conceived that it cannot be done 
 nnder the jn-esent practice. 
 
 The cross-examwiation of Avitnesses on their affidavits must, on 
 motion for decree, be taken befoi-e the examiner;'^ the Court has, 
 however, jiower to order it to be taken viva voce at the hearing.^ 
 No time has been limited for the cross-examination, but it must, it 
 seems, take place within a reasonable time.* 
 
 Where a suit is brought on by motion for decree, and replication 
 has been filed in a cross-suit, and the i)laintitf in the original suit 
 has obtained an order for leave to use, in the cross-suit, the affida- 
 vits filed in the original suit, the plaintiff in the cross-suit may 
 either treat the affidavits filed in the cross-suit as if they were 
 filed in the original suit, and give notice to cross-examine the wit- 
 nesses before an examiner, or he may treat them as evidence filed 
 in the cross-suit, and give notice of cross-examination in open 
 Court at the hearing.^ 
 
 A subpoena duces tecum, for the production of a will or other 
 document at the hearing of a motion for a decree, may be issued,^ 
 and, it seems, as of course.'' 
 
 Motions for decree are set down with the Registrar in the cause- 
 book, with the causes, and come on accordingly, unless the Court 
 otherwise directs.^ They must be set down within one week after 
 the expiration of the time allowed to the plaintiff for filing his 
 affidavits in reply, in case the defendant has filed any affidavit, or 
 within one week after the expiration of the time allowed to the 
 defendant to file his affidavits in answer, in case the defendant 
 has not filed any affidavit ; but in case the time alloAved for either 
 of the puqioses aforesaid shall be enlarged, then within one week 
 after the expiration of such enlarged time.^ In order to set down 
 
 1 Pellatt V. Nicholls, 24 Beav. 298 ; Reh- 
 den V. Wesley, 26 Beav. 432, and see 15 
 & 16 Vic. c.'se, §40; and Williams v. 
 Williams, 17 Beav. 156; 17 .lur. 4.34. 
 
 2 Ord. 5 Feb., 1861, r. 19; Bodger v. 
 Bodger, 11 \V. R. 80, V. C. K. For mode 
 of taking the cross-examination, see post, 
 Chap. XXir. § 10, Affidavits. 
 
 3 See 15 & 16 Vic. c. 86, § 39. 
 
 4 Bedwell v- Prudence, 1 Dr. & S. 221; 
 Morey v. Vandenbergh, 1 W. N. 197, V. 
 C. S. 
 
 6 Neve V. Pennell, 1 H. & M. 252. 
 
 6 Wigram v. Rowland, 10 Hare Ap. 18; 
 Raworth v. Parker, 2 K. & .J. 163. For 
 form of subpoena, sec Vol. HI. 
 
 7 Wilhem v. Reynolds, 8 W. R. 625, V. 
 C.K. 
 
 8 Ord. xxxrii. 9. 
 
 9 Ord. 22 Nov., 1866, r. 2.; see Boyd v. 
 Jaggar, 17 Jur. 655; 10 Hare Ap. 54, L. C. 
 & L. J.J.
 
 MOTION FOR A DECREE. 
 
 825 
 
 a motion for decree, the Record and Writ Clerk's certificate tliat 
 the cause is in a fit state to enable the plaintifi" to move for a 
 decree, indorsed by the plaintifi''s solicitor with a memorandum 
 of the date when the notice was served, and when it will expire, 
 and, if there be any infimt defendant, stating tliat a guardian ad 
 litem has been appointed, or, if there be not, stating that there is 
 not any iniant defendant, must be produced at the oi'der of course 
 seat in the Registrar's ofiice.^ The cei'tificate is not to be given until 
 after the expiration of the time allowed to the plaintiff to file his 
 affidavits in reply, in case the defendant shall have filed any affi- 
 davits, or until after the expiration of the time allowed to the 
 defendant to file his affidavits in answei", in case the defendant has 
 not filed any affidavit ; but in case the time allowed for either of 
 the purposes aforesaid shall be enlarged, then not until after the 
 expiration of such enlarged time."^ After the expiration of the week, 
 the motion M'ill not be set down Avithout the consent in writing 
 of the defendant's solicitor.^ If the plaintiff fails to set down the 
 motion within the time above limited, the defendant may either 
 move to dismiss the bill with costs, for want of prosecution, or set 
 the motion down at his own request.* 
 
 In a proper case, a motion for decree may be marked^ and 
 heard as a short cause ; ^ and it will be so marked, on production 
 of the certificate of the plaintiff's counsel that the motion is fit to 
 be so lieard, without the consent of the solicitors of any of the 
 defendants ; but notice of the cause having been so marked, must 
 be given to the defendant ; "^ and the motion will not be heard 
 before the day for which notice is given, except by consent of all 
 parties.^ 
 
 If a motion for injunction is, by consent, turni'd into a motion 
 for decree, it should be set down " by order," that the month's 
 delay may be saved.^ 
 
 All affidavits and depositions to be used on the hearing of the 
 motion must be ])rinted, under the regulations hereafter explained.^" 
 
 Two printed copies of the bill, and of each of the answers, must 
 also be left with the Train-bearer of the Master of the Rolls, or 
 
 c. XX. 
 
 Motion may 
 be heard 
 short; and, 
 by consent, 
 before the 
 month 
 expires. 
 
 Where 
 motion for 
 injunction 
 turned into 
 motion for 
 decree. 
 Printing 
 evidence. 
 Papers for 
 use of the 
 Court. . 
 
 1 Reg. Regul. 15th Mar . ISGO, r. 0; and 
 see Bovd v. Jaggar, xihi suj). For forms of 
 certilicatc and niemorandntn, see Keg. 
 Kegul. 15 .Mar., 1860, r. G, and Vol. MI. 
 The certificate of the Recurd and Writ 
 (Jlerk will not be granted hefore the ex- 
 piration of the time for answering, unless 
 a written consent hy tiie defendant's solic- 
 itor is left witii him. For a form, see Vol. 
 
 in. 
 
 - Ord. 22 Nov., 1868, r. 4. 
 
 3 For a form of conxcnt, see Vol. III. 
 
 * Ord. 22 Nov., 18C6, r. 3. 
 
 * Ames V. Ames, 10 Mare Ap. 54; 17 
 
 Jur. C(J4; Drew v. Long, 17 .Tur. 17.3, V. 
 C. K. ; see jiost, Chap. XXV., Hearing 
 C'luses. 
 
 Re?. Rcgul. 15 Mar.. 18G0, r. 10. For 
 form of certificate, see Vol. III. 
 
 T Molesworth V. Snead, IJ W. R. 9.34, 
 
 V. c. \v. 
 
 8 Ibid. ; Loinswortli ti. Rowley, 10 Hare 
 Ap. 55. For form of consent, see Vol. III. 
 
 " (irecn r, I,ow, 22 Beav. 396. The 
 Record aii(l Writ Clerk's certificate will be 
 required in such case. 
 
 in Ord. 16 May, 18G2; jmt, Ch. XXII 
 § 10, Ajjidavils.
 
 826 
 
 MOTION FOR A DECREE. 
 
 C. XX. 
 
 Ntijloct at 
 the hearing: 
 
 l>.v plaint irt"; 
 
 by dptend- 
 uit; 
 
 bj the 
 solicitor. 
 
 What order 
 may be made 
 on the 
 hearing. 
 
 Amendment 
 of bill, aliter 
 motion. 
 
 Right to 
 begin, on 
 appeal. 
 
 ol'tho Vioo-Chiuu'olK)!-, ;is in:iy bo, lor llio use of the Court ;iud the 
 Ko^istrar, Itoloro tlu' mot ion comes ou tor hcariuii;.^ 
 
 If the plaintilV fails to appear when the motion is called on, tlie 
 delendant's counsel may ap])ly to have the hill ilismissed with 
 costs, and need not, it seems, for this purpose ]>roduce an ailidavit 
 of the defendant's having been served with the notice of motion.'^ 
 AVhii-e the deleiidant fails to appear, tlie plaintiif may move for 
 the decree in his absence, subject to the production of an aftidavit 
 of service of the notice;" but the Court has, in such case, allowed 
 the decree to be reopened on motion.'' The affidavit, in either 
 case, shoukl be filed at the Record and Writ Clerk's Office, and 
 an office copy be produced to the Registrar, at the latest before 
 the rising of the Court on tlie day on which the a])])lication is 
 made.^ If neither party appears on the motion, it will be struck 
 out of the paper. 
 
 Where the motion cannot conveniently proceed by reason of the 
 solicitor for any party neglecting to attend personally, or by some 
 proper person on his behalf, or omitting to deliver any ])aper 
 necessary for the use of the Court, and which according to its 
 practice ought to have been delivered, such solicitor is personally to 
 pay to all or any of the parties such costs as the Court may award.® 
 
 Upon hearing a motion for a decree, it is discretionary with the 
 Court to grant or refuse the motion, or to make an order giving 
 such directions with respect to the further prosecution of the suit 
 as the circumstances of the case may require, and to make such 
 order as to costs as it may think right.''^ The decree or order is 
 drawn up, passed, and entered in the manner hereafter explained, 
 in treating of decrees made on the hearing of the cause.® After 
 an unsuccessful motion for a decree, the bill has been allowed to 
 be amended.^ 
 
 Ul)on an appeal from the whole decree, made on motion for 
 decree, the plaintiff has the right to begin.^" 
 
 1 Reg. Regul. 15 March, 1860, r. 22; 
 Reg. Notice, 23 Nov., 1861; and see Ord. 
 XXI. 12. The plaintiff's briefs consist of 
 printed copies of the bill, and answers, 
 affidavits in support, opposition, and reply, 
 and of the depositions of the witnesses on 
 their cross-examination, and of written 
 copies of such exhibits or other documents 
 as may be necessary. A defendant's briefs 
 are the same, except that copies of only 
 the answer, and of such answers of co-de- 
 fendants as the plaintilT lias notified liis 
 intention to read against him, or as he has 
 si<;nified his intention to re;id against the 
 plaintifl'or co-defendants, should be fur- 
 nished. Each brief should be accompanied 
 with observations. 
 
 '■2 Marter v. Marter, 12 W. R. 34, M. R. 
 
 8 For form of affidavit, see Vol. III. 
 
 4 Hughes V. Jones, 26 Beav. 24. 
 
 5 Lord Milltown v. Stuart, 8 Sim. 34; 
 Seton, 29. 
 
 6 Ord XXI. 12. 
 
 M5 & 16 Vic. c. 86, § 16; see Thomas 
 V. Bernard, 5 Jur. N. S. 31; 7 W. R. 86, 
 V. C. K.; Warde v. Dickson, 5 Jur. N. S. 
 698; 7 W. R. 148, V. C. K. ; Raworth v. 
 Parker, 2 K. & J. 163; Norton v. Stein- 
 kopf, Kav, 45; »6. Ap. 10; Robinson v. 
 Lowater, 2 Eq. Rep. 1072, L. JJ. 
 
 8 See post, Chap. XXVI. § 3, Drawing 
 ■up Decrees. For form of decree on motion, 
 see Seton, 26. 
 
 fl Thomas v. Bernard, 5 Jur. N. S. 31; 
 r W. R. 86, V. C. K. 
 
 1" I'.irkeiihead Docks v. Laird, 4 De G., 
 M. &G. 732.
 
 advisable. 
 
 MOTION FOR A DECREE. 827 
 
 Where a decree, made on a motion for a decree, is appealed C. XX. 
 from, a petition of appeal must be presented.^ "— — y — ' 
 
 By bringing a cause to a hearing on a motion for a decree, con- Appeal must 
 siderable delay is saved ; it is, therefore, the better course for a ^ion ^^'^' 
 plaintiff to follow, where he expects to be able to prove his case Where notice 
 by affida\'it ; but where he desires to examine witnesses in chief, ^ecre^^T ^"^^ 
 orally, he should file replication.'^ It is also to be observed, that replication, is 
 on motions for a decree, the plaintiff's e^'idence is known to the 
 defendant before he prepares his proofs, the cross-examination 
 of witnesses takes place before the examiner,^ and the plaintiff 
 has an opportunity of adducing evidence in reply; but that if 
 replication has been filed, both parties have to prepare their proofs 
 before the evidence of the other side is known, the cross-exami- 
 nation of witnesses must take place before the Court itself,* and 
 there is no opportunity of adducing evidence in reply. 
 
 1 Ord. XXXI. 8. For form of petition, * Ord. 5 Feb., 1861, r. 7; with certain 
 see Vol. III. exceptions, for which see Ord. 5 Feb., 1861, 
 
 2 See ante, p. 823. rr. 10, 11, 16. 
 
 3 Ord. 2 Feb., 1861, r. 19.
 
 CHAPTER XXI. 
 
 RErLICATION. 
 
 In what cases 
 to be filed. 
 
 When cause 
 should be 
 heard on bill 
 and answer; 
 
 Seldom now 
 done. 
 
 After the dcftnidant, if required to answer, has fully answered 
 the bill, or, if not required to answer, the time allowed for putting 
 in a voluntary answer has expired, the plaintiff, if he determines 
 not to move for a decree, or his motion has been refused, must file 
 a replication : ^ unless, where an answer has been filed, he decides 
 to go to a hearing of the cause on bill and answer. 
 
 If^ upon the answer alone, without further proof^ there is suffi- 
 cient ground for a final order or decree, the plaintiff must proceed 
 to a hearing on bill and answer, without entering into evidence : ^ 
 as where the plaintiff makes his title by aAvill or other conveyance 
 in the defendant's hands, and the defendant, by his answer, con- 
 fesses it, or where a trust is confessed by the answer, and nothing 
 further is required than to have the accounts taken,^ 
 
 A cause is now, however, rarely heard on bill and answer. 
 
 1 Ord. XVII. 1; 15 & 16 Vie. c. 86, 
 § 26; Duffield v. Sturges, 9 Hare Ap. 
 87 ; Blake v. Cox, 1 W. R. 124, V. C. W. 
 If the plaintiff" wishes to prove any fact on 
 the hearing, not admitted by the answer, 
 he must file a replication. Mills v. Pit- 
 man, 1 Paige, 490. 
 
 In Maine, " within thirty days after the 
 answer is tiled, unless exceptions are taken, 
 or within fifteen days after it is perfected, 
 the plaintiff's counsel shall file the general 
 replication, and give notice thereof; or give 
 notice of a hearing at the next term on bill 
 and answer." Rule 9 of Chancery Prac- 
 tice; see Rule 17, N. Hamp. Chancery 
 Practice, 38 N. H. 608 ; Rule 17, Mass". 
 Chancerj' Practice; 6Gtli Rule, United 
 States Courts. A special replication can- 
 not be filed without leave of Court. Storms 
 V. Storms, 1 Edw. Ch. 3.58. 
 
 B3' 4.5th Equity Rule of the United 
 States Courts, no special replication to 
 any answer shall be filed. Put if any 
 matter alleged in the answer shall make 
 it necessarj- for the plaintiff to amend his 
 bill, he may have leave to amend the same 
 with or without payment of costs, as the 
 Court, or a Judge thereof may in his dis- 
 cretion direct. 
 
 In Massachusetts, "the form of the 
 general replication shall be that the plain- 
 tiff joins issue on the answer. No special 
 replication shall be filed, but by leave of 
 the Court. Rule 16, of the Rules for 
 Practice in Chancery. In New Hamp- 
 shire, a replication 'shall be entitled as 
 an answer, iind shall be in substance, 
 "The plaintiff' says his bill is true, and 
 the defendant's answer, as set forth, is 
 not true, and this he is ready to prove." 
 Rule 22 of Chancery Practice; see Story 
 Eq. PI. § 878; Storms v. Storms, 1 Edw. 
 Ch. 358; Dupote v. Massy, Cox's Dig. 
 146; Brown v. Ricketts, 2 John. Ch. 425; 
 Lyon V. Tallmadge, 1 John. Ch. 184; Liv- 
 ingston V. Gibbons, 4 John. Ch. 94; Thorn 
 V. Germand, ib. 363; Pratt v. B;icon, 10 
 Pick. 123. Matters in avoidance of a plea, 
 which have arisen since the suit began, 
 are properly set up by a supplemental bill, 
 not by a special replication. Chouteau v. 
 Rice, 1 Min. 106. A special replication, 
 denying part of the matter of the plea, and 
 reasserting the substance of the bill, is in- 
 admissible. Newton v. Thayer, 17 Pick. 
 129. 
 
 2 Ord. XIX. 1. 
 
 8 Wyatt's P. R. 374.
 
 REPLICATION. 
 
 829 
 
 The only advantage in doing so, instead of hearing it on motion 
 for decree, is, that the month's notice is thereby saved ; but, on 
 the other hand, where a cause is heard upon bill and answer, the 
 answer must be admitted to be true in all points, and no other 
 evidence will be admitted ; ^ unless it be matter of record to which 
 the ansAA''er refers, and which is provable by the record itself,^ 
 or documents proved as exhibits at the hearing.^ It therefore 
 behoves the plaintift'to look attentively into the answer; and if he 
 finds that the effect of the defendant's admissions is avoided by 
 any new matter there introduced, he should serve notice of motion 
 for a decree,^ or reply to the answer, and proceed to establish his 
 case by jjroofs.^ If the plaintiff" decides upon haA-ing the cause 
 heard upon bill and answer against one or all of the defendants, 
 he must proceed in the manner hereafter pointed out.*' 
 
 A replication must also be put in by the plaintiff" where the de- 
 fendant has ])leaded to the bill, whether his plea be accompanied 
 by an answer or not J It is, however, to be recollected, that, if the 
 plaintiff" replies to a plea before it has been argued, he admits the 
 plea to be valid, if true ; ® and that he cannot afterwards object to 
 it, on the ground of its invalidity or irregularity.^ 
 
 We have seen before, that a replication to a general disclaimer 
 to the Avhole bill is improper : although, when a disclaimer to part 
 of the bill is accompanied by a plea or answer to another part, 
 there may be a replication to such plea or answer." 
 
 A replication is the plaintilf's answer or re])ly to the defendant's 
 plea or answer. By re})lying to the answer, the plaintiff' does not 
 j)reclude himself from reading any part of the answer he may con- 
 sider essential to assist his case. 
 
 Only one replication is to be filed in each cause, unless the Court 
 otherwise directs." 
 
 The Court Avill not as of course, or excej^t m cases of necessity, 
 
 C. XXI. 
 
 Evidence. 
 
 When an- 
 swer should 
 be replied to ; 
 
 After plea. 
 
 1 Contee v. Dawson, 2 Bland, 264; 
 Childs V. Horr, 1 Clarke (Iowa), 432; Rog- 
 ers V. Mitchell, 41 N. H. 154; fierce v. 
 West, 1 I'eters C. C. 351; Pickett v. Chil- 
 ton, 5 Munf. 407; Scott v. Clarkson, 1 
 iJibb, 277. But wliere tlie cause is set 
 down for hcariuf; on bill, answer, and 
 depositions, the replication is mere form, 
 and the Court will sutler it to be filed nu?ic 
 pro tunc. Scott v. Clarkson, 7ibi supra ; 
 Demaree t;. I)riskill,.'5 lihickl'. 115; I'icrce 
 V. West, v/ji suprn ; (ilcnn ?•. Hebb, 12 
 Gill & .J. 271; Arniistea'l r. Bo/man. 1 
 Ired. Ch. 117; Smitlu;. West, 3 John. Ch. 
 303; see Itending v. Ford, 1 I'.ibb, 338. 
 
 2 Ord. XI.X. 2; Le^ard v. Sheflield, 2 
 Atk. 377; see, however, Stanton v. I'er- 
 cival 3 W. K. 3t)l ; 24 L..I.('h. 300, II. L. 
 
 8 PiiM, p. ^74 et sc'j.; Hfiwhind v. Slur- 
 gis, 2 Ilarc, 520; Chalk r. Uaine, 7 Hare, 
 3S»3; laJur. 'JKl; Neville I'. I'itzgenild, 2 
 
 Dr. & War. 530; contra, Joneg,?;. Griffitli, 
 14 Sim. 262; 8 Jur. 733. 
 
 4 See ante, p. 819. 
 
 6 Wj-att's P. R. 375. 
 
 8 Seepost, Chap XXV. Hearinij Cm/ses. 
 
 "> Ante, p. 604. A plea may beset down 
 to obtain judgment of its sutliciency and 
 formality, without a replication. Moreton 
 V. Harrison, 1 Bland, 491. 
 
 8 Hughes V. Blake, 6 Wheat. 472; S.C. 
 1 Mason, 516; Daniels v. Tagpart, 1 Gill 
 &. 1.312; Brooks t'. .Mead, Walk. Ch. 389; 
 Bellows J'. Stone, 8 N. H. 280; Newton v. 
 Thayer, 17 I'ick. 129; Ilurlburt w. Britain, 
 Walk. 454. Upon a replication to a plea, 
 nothing is in issue except what is distinctly 
 averred in the plea. Fish v. Miller, 6 
 Paige, 26. 
 
 " lln,l. 
 
 1« Ih. |). 055. 
 " Ord. XVII. 2. 
 
 After 
 disclaimer. 
 
 Nature of 
 replication : 
 does not pre- 
 clude plamtiiF 
 from reading 
 answer. 
 Generally, 
 only one 
 replication to 
 be tiled ; 
 exceptions.
 
 830 
 
 REPLICATION. 
 
 C. XXI. 
 
 On filing 
 replication, 
 cause is 
 deemed at 
 issue. 
 
 Form of 
 replication. 
 
 givo till' plaintilV Icmvc 1o file more ilian one replii-ation ; ^ but 
 wliorc (lu- n'i>lii'atioii only ai)i)lied to some (U'tVndauts, and as to 
 tho otlii'is (ho cause was not at issue, leave was given to tile a 
 second reiilieation against such other deieiidants ;'^ and Avhere, 
 u]>on notice of motion to dismiss for want of prosecution, by one of 
 two defendants, the plaintift' filed replication against sucli defend- 
 ant alone, the otlier defendant not liaving apj)eared, the Court 
 refused the motion, on the iilaintilf undertaking to dismiss the bill 
 against the defendant who had not appearetl, but ordered the 
 plaintiff to jiay the costs of the motion.* ■ 
 
 Upon filing the replication, the cause is deemed to be completely 
 at issue;* and each detendant may, without any rule or order, 
 proceed to verify his case by evidence ; and the })laintitf may, in 
 like manner, proceed to verify his case by evidence ; so soon as 
 notice of the replication being filed has been duly served on all the 
 defendants Avho have filed an answer or plea, or against whom a 
 traversing note has been filed, or who have not been required to 
 answer and have not answered the bill.^ 
 
 The fonu of the replication in the General Orders assumes a 
 case where the plaintiff desires to join issue as to one of the defend- 
 ants ; to hear the cause on bill and answer as to another ; and to 
 take the bill as confessed as against a third.® Where, however, 
 the plaintiff does not desire to join issue with any defendant, no 
 replication can be filed.' The full title of the cause, as it stands at 
 the time the replication is filed, must be set forth in the heading 
 of the replication, but only the names of such of the defendants as 
 have appeared should be inserted or referred to in the body. If a 
 defendant's name has been misspelt by the plaintiff, and such de- 
 fendant has coiTected the same by his answer, but the plaintiff has 
 not afterwards amended his bill with respect to such name, the 
 correction should be shown in the title of the replication ; ^ in the 
 body of the replication, however, the correct name only should be 
 inserted. Where any defendant has died since the bill was filed, 
 the words " since deceased " should follow his name in the title, 
 but his name should be omitted in the body of the replication. If 
 the plaintiff joins issue with all the defendants, their names need 
 not be repeated in the body ; it is suflicient, in such case, to desig- 
 
 1 Stinton v. Taylor, 4 Hare, 608, 610; 
 10 Jur. 386. 
 
 - Rogers v. Hooper, 2 Drew. 97. 
 
 3 Heanley v. Abraham, 5 Hare, 214. 
 As to when a second or further replication 
 may be filed, witiiout special leave, see 
 Braithwaite's Pr. 73. 
 
 ■* In America, generally, if not univer- 
 sally, the pleadings terminate with the 
 replicatinii, and no rejoinder is filed; and 
 the case is deemed at issue upon the tiling 
 of the replication. This is the general 
 
 practice in the Courts of the United States. 
 Story Eq. PI. § 879, note; 66th Equity 
 liule of tl)c United States Courts. 
 
 5 Ord. XVli. 2, where the form of repli- 
 cation is given, and which is to be adopted, 
 as near as circumstances admit and re- 
 quire, ibid. ; and see form, Vol. 111. 
 
 Ord. XVII. 2. 
 
 ■^ IJraithwaite's Pr. 72. 
 
 8 Thus: "John Jones (in the bill called 
 William Jones)."
 
 REPLICATION. 
 
 831 
 
 nate them as " all the defendants ; " but if he does not join issue 
 ■with all, the names of the defendants must be set out in the body. 
 The names of those defendants who are stated in the bill to be out 
 of the jurisdiction, and who have not appeared, must be inserted 
 in the title, but not in the body ; and the names of such fonnal 
 defendants as have been served with a copy of the bill must be in- 
 serted in the title of the replication, but only such of them as have 
 entered a common appearance should be named in the body.^ 
 
 The replication is prejjared by the solicitor of the plaintiff: it 
 must be written on paj^er of the same description and size as that 
 on which bills are printed,^ and be underwritten with the name 
 and place of business of the plaintiff's solicitor, and of his agent, if 
 any, or with the name and place of residence of the plaintiff where 
 he acts in person, and, in either case, with the address for serAice, 
 if any ; ^ and the replication must then be filed at the Record and 
 Writ Clerks' Office.* It does not require the signature of counsel. 
 
 Any error in the repUcation, except the omission of the names 
 of any defendants, may be corrected by amendment ; but an order 
 to amend is necessary. The order may be obtained on sjjecial 
 summons at Chambers, or, by consent, on petition of course at the 
 RoUs.^ Against the defendants whose names have been omitted, 
 another replication must be filed, or leave obtained to withdraw 
 the existing replication and file another ; and an order for leave so 
 to do, in either ease, must be obtained in like manner, or upon 
 special motion with notice.® 
 
 The solicitor must give notice of the filing of the replication to 
 the solicitor of the adverse party, or to the adverse party himself 
 if he acts in person, on the same day on which it is filed.'' If he 
 neglects to do so, the opposite i^arty should move that the time for 
 him to take the next step, may be extended ; * not that the replica^ 
 tion may be taken off the file. 
 
 The notice must be served before seven o'clock in the evening, 
 except on Saturday, when it must be served before two o'clock in 
 the afternoon. If served after these hours, the service will be con- 
 sidered to have been made on the following day, or Monday, as 
 the case may be.® 
 
 C. XXI. 
 
 1 Braithwaite's Pr. 75. 
 
 2 Ord. 6 March, 18G0, r. IG; as to such 
 paper, .see Ord. IX. 3. ante, p. 396. 
 
 8 Ord. III. 2, 6, ftute, pp. 453, 454. For 
 a form, see Vol. III. Story K<\. IM. § 878, 
 note; IJarton Suits in Kquity, 144, 145; 
 Chouteau v. Hice, 1 Min. lOG. 
 
 * Ord. I. 35. No fee is piiyablc. 
 
 6 Braithwaite's I'r. 318. For forms of 
 summons and petition, see Vol. III. 
 
 8 Stniton V. Taylor, 4 Hare, 008, 610; 
 10 Jur. 3bC; Braithwaite's Pr. 318. For 
 
 forms of notice of motion, summons, and 
 petition, see Vol. III. 
 
 ' Ord. III. 9. In practice, it is usual to 
 serve the notice on ail the defendants, 
 or their solicitors, who have appeared. 
 Braithwaite's Pr. 79. 
 
 » Wright i\ An{j;le,6 Hare, 107; llJur. 
 9f^7; Lloyd r. Solicitors' Life Assurance 
 Company, 3 W. li. 640, V.C. W. ; ccmtra, 
 .Johnson v. Tucker, 15 Sim. 599; 11 Jur. 
 4GG. For form of notice of motion, see 
 Vol. III. 
 
 9 Ord. XXXVII. 2; ante, p. 456. 
 
 How pre- 
 pared ; 
 
 and filed. 
 
 Amendment : 
 ■when 
 allowed; 
 order for : 
 howobtained. 
 
 Notice of 
 filing: 
 
 consequences 
 of neglect 
 to serve; 
 
 when to be 
 served.
 
 832 
 
 REPLICATION. 
 
 r. XX T. 
 
 Sorvici' ot' 
 notice 
 
 rtllowod to be 
 iiuulo out of 
 tlu> jurisdio- 
 tioii ; 
 
 or on a sulisti- 
 tuto witliiii; 
 or by public 
 advertise- 
 ment. 
 Onlei- to 
 serve : how 
 obtained. 
 Fonn of 
 notice. 
 
 Row soon 
 replieatidii 
 may be tiled: 
 
 "Where formal 
 defendants 
 have been 
 served with 
 copy of bill. 
 
 Where bill 
 taken pro 
 covfesso 
 against anj- 
 defendants. 
 
 In propor casi-s, tlir notice will he allowed to bo servoil out of 
 tlie jurisdiction ; ' and lor (his jnirposc, tin' time for service will be 
 exteiuled;"^ service of the notice may also be substituted; and 
 this has been doi\e by allowing- tlie notice to be advertised in tlie 
 (lazetlc. .uitl in two newspapers circidating in the county in wliieh 
 the defeiitlant was last known to have resided.^ An order for 
 lca\ e to St r\ c notice of the replication, in any of the modes above 
 incut iiniotl, may be obtained on ex jxirte motion, supported by an 
 allidavit of the facts ; and a copy of the order must be served witli 
 the notice.'' 
 
 In giving notice of tlie filing of replication, the most convenient 
 course is to serve a copy of the re])lication ; but it is not essential 
 to do so; and if not done, the notice must show the ])ur))ort of the 
 replication.^ The time for closing the evidence is computed from 
 the day on which the i-eplication is filed. 
 
 The plaintiff may file replication immediately after the answers 
 have been put in, or a traversing note has been filed and served ; 
 or, where no answer is required, immediately after the time allowed 
 for answering has exi^ired ; *^ and when he desires to file replication, 
 "Without waiting till all the answers required by him have been put 
 in, or till the time has expired for defendants to answer voluntarily, 
 he should amend the interrogatories,'' by striking out so much of 
 the heading and foot-notes as requires an answer from the particular 
 defendants who have not answered ; ^ and should obtain the con- 
 sent of the solicitor of those defendants whose time to answer 
 voluntarily has not elapsed, to such replication being filed, not- 
 withstanding the time to file a voluntary answer has not ex- 
 pired.^ 
 
 Where any formal defendants have been served with a copy of 
 the bill, replication may be filed, notw^ithstanding a memorandum 
 of such service may not have been entered : it being sufficient if 
 such memorandum is entered before the certificate to set down the 
 cause is granted.^" 
 
 If the plaintifi" proposes to take the bill joro confesso against any 
 defendant, he cannot file replication until the order to take the bill 
 pro confesso has been obtained ; and such order must be produced 
 to the ofiicer when the replication is presented for filing : unless it 
 
 1 Lanliam v. Pirie,2 Jur.N. S. 1201, V. 
 C. S.; Heaths. Lewis, 2 W. R. 488, M. K. 
 
 2 Kooper v. Harrison, 2 W. K. 510; 2 
 Eq. Kep. 1085, V. C. W. 
 
 « Barton v. Whitconib, 17 .Jur. 81, L. C. 
 & L. J.J.; 16 Beav. 206, n.; see also Jen- 
 kin V. Vaufrhan, 3 Drew. 20; Lechmere v. 
 Clamp, 29 Beav. 259. 
 
 ^ For forms of motion paper and affi- 
 davit, see Vol. III. 
 
 5 Braithwaite's Pr. 79. For form of 
 notice, see Vol. III. 
 
 G Braithwaite's Pr. 74, 76; andseeOrd. 
 XXXIII. 10, 12; ante, p. 828. 
 
 ■? As to amending interrogatories, see 
 ante, p. 486. 
 
 8 Braithwaite's Pr. 76. 
 
 9 Ibid. The consent should be indorsed 
 on the proposed replication. For form of 
 consent, see Vol. 111. 
 
 10 Braithwaite's Pr. 74.
 
 EEPLTCATIOX. 
 
 833 
 
 has been pre^•iously left for entry, in the cause-book kept by the 
 Clerks of Records and "Writs. ^ 
 
 Replication must be filed within the times following : within 
 four weeks after the answer, or the last of the answers required to 
 be ]mt in by a defendant, is held or deemed to be sufficient ; ^ or, 
 where the plaintiif has undertaken to reply to a plea, -ttdthin four 
 weeks aft,er the date of his undertaking ; ^ or, where a traversing 
 note has been filed, within four weeks after the filing of the trav- 
 ersing note ; * or, where he has amended his bill without requiring 
 an answer, witliin one week after the expiration of the time within 
 which the defendant might have answered, but does not desire to 
 answer,^ or within fourteen days after the reftisal of further time 
 to put in his answer,® or within fourteen days after the filing of 
 the answer: unless the plaintiff has, within such fourteen days, 
 obtained a special order to except to such answer, or to reamend 
 the bill.^ 
 
 The plaintiff may, however, in all these cases apply by motion, 
 or by summons in Chambers, upon notice to the defendants, for an 
 order to enlarge the time for filing replication.^ 
 
 In computing the fourteen days,^ within which the plaintiff must 
 file replication, in cases where he has amended his bill, without 
 requiring an answer to the amendments, and the defendant has 
 answered the amendments, vacations are not reckoned ; ^° but in 
 computing the time in all other cases, they are reckoned." 
 
 By not filing replication within the time allowed for so doing, 
 the plaintiff subjects himself to an application for the dismissal of 
 his bill for want of prosecution ; ^^ but the re})lication Mall be re- 
 ceived and filed at any time at the Record and AVrit Clerks' Office, 
 if it ap]>ears by the books of that office that the cause is in a state 
 to admit of its being filed, even after notice of motion to dismiss 
 has been served ; and, indeed, to do so, and tender the costs of the 
 motion, is generally the best Avay of meeting it.^* 
 
 In reference to extending the time to 
 reply, in New York, see The Sen Ins. Co. 
 1'. Day, 9 Paige, 247 ; Kane v. Van Vran- 
 ken, 5 Paifje, 63. 
 
 Ifllie plaintiff wishes to amend his bill, 
 and a special application to the Court for 
 leave to do so is necessarv, he should not 
 file 11 re[dic:itioii, l)ut should <ititain an or- 
 der to extend the time for fiMiif,'- the rep- 
 lication, until after the decision of the 
 Ciitirt upon the application to amend. 
 Vermilyea v. Odell, 4 Paiffc, 722. If the 
 jilaiiitifV filfs a reiilicatioii to the answer 
 alter he is ajjprised of the necessity of an 
 amendment of his hill, he prcchides him- 
 Helf from making' such amendment. Vcr- 
 inilyc:i r. Odell, ufii supra. 
 
 •"■ IJraithwaite'a Pr. 78; and sec antu, 
 p. 805. 
 
 C. XXI. 
 
 Times limited 
 for filing ; 
 
 after a suffi- 
 cient answer ; 
 
 after under- 
 taking to 
 reply to plea; 
 
 after a trav- 
 ersing note ; 
 
 after time to 
 voluntarily 
 answer 
 amendments : 
 
 and answer 
 not in; 
 
 and fiirther 
 time refused; 
 
 or answer in. 
 
 Extension 
 of time for 
 tiling. 
 
 Vacations : 
 when reck- 
 oned in time 
 for filing 
 replication. 
 
 Consequences 
 of not filing, . 
 within time. 
 
 1 Hraithwaite's Pr. 74. 
 
 2 Ord. XXXIH.lO(l); an/e,p. 828,note. 
 8 Ord. XXXIII. 10(2). 
 * Ord. XXXIII. 10(1). 
 6 Ord. XXXIII 12 (1); XXXVII. 7. 
 
 6 Ord. XXXIII 12 (2). 
 
 7 Old. XXXIII. 12 (3). As to filing 
 replication in anticip;ition of some of the 
 answf-rs, see Praithwaitc's Pr. 74. 
 
 « Ord. XXXIII. 10. 12; Ord. XXXVII. 
 17; see Stintnn v. Taylor, 4 Hare, 608, 
 610; lO.Iur. 8t-6; Dalton r. Ibiyter. 9Jur. 
 1000, M. K. For form of summons, see 
 Vol. III. 
 
 '■< InderO-d XXXIII. 12 (3). 
 
 10 Ord XXXVII. 13 (4). 
 
 11 STln'on r. Tavlor, uhi sup. 
 
 12 .See OGIh Ivjiiity Rule of the United 
 States Courts; liulc 17, Mass. Chancery 
 Kules. 
 
 63
 
 834 
 
 REPLICATION. 
 
 C. XXI. 
 
 or of petting 
 down cau.*o 
 on bill and 
 answer ; 
 
 or without 
 prejudice to 
 evidence 
 taken. 
 
 Where repli- 
 cation is 
 omitted to be 
 filed before 
 evidence 
 entered into. 
 
 No excep- 
 tions to 
 answer, after 
 replication. 
 Replication to 
 answer to 
 supplemental 
 statement. 
 Effect of 
 Bankruptcy 
 Act, with 
 respect to ' 
 rejoinder. 
 
 AVo liavo soon l)oloro, tli;il .•iltor a roiilic:iti(Mi 1i:is Ixmmi filod, a 
 plaiiititV, it" ho wishes to wilh.liaw it ami aniciKi liis bill fuither 
 than by addiiiLj parties, must niako a special application by suni- 
 nu>ns for U'ave to (U> so : ^ in whicli case, in aihlition to the affi(hivit 
 ordinarily re(iuireil npon an application to amend, a lurther adidavit 
 is necessary, showinu: that tlie matter of tlie ])roposetl amendment 
 is mati'rial, and could not, with reasonable diligence, have been 
 sooner introducotl into the bill.- Afler the evidence is closed, the 
 ap])lication will bo refused ; " but where, during the time for tak- 
 ing the evidence, the ])laintift* discovered an important mistake of 
 flicts in the bill, the Court, thinking that the plaintiff had not shown 
 such want of diligence as to preclude it from giving him leave to 
 amend, gave liberty to withdraw reidication and amend the bill, 
 on the terms of the plaintiff paying the costs of the suit then in- 
 curred, including the costs of the application.* 
 
 A plaintiff has also been pennitted, on motion, to withdraw 
 his replication, and set his cause down for hearing upon bill and 
 answ^er.^ 
 
 Where replication is withdrawn, after evidence under it has been 
 entered into, the order should provide that the withdrawal is to be 
 without prejudice to such evidence. 
 
 It has sometimes happened that, even after witnesses have been 
 examined, it has been discovered that, owing to a mistake, no rep- 
 lication has been filed : in such cases, the Court has permitted the 
 replication to be filed nunc pro tunc.^ And it seems that the Court 
 has permitted this to be done after the cause has come on for hear- 
 ing, and the reading of the proofs has been commenced.'' 
 
 After replication has been filed, exceptions cannot be taken to 
 the answer for insufiiciency.^ 
 
 Replication may be filed to an answer put in to a supplemental 
 statement.® 
 
 By the Bankruptcy Consolidation Act, it is enacted that, in all 
 suits in Equity, other than a suit brought by the assignees for any 
 debt or demand for which the bankrupt might have sustained a 
 suit in Equity had he not been adjudged bankrupt, and whether 
 at the suit of or against the assignees of a bankrupt, no proof 
 
 1 Woods V. Woods, 1.3 L. J. Ch. 98, V. 
 C. E.; Wilson r. Parker, 9.Tur.709, V. C. 
 K. B.; Ord. XXXV. 61; rtH<e, p. 417. For 
 form of summons, see Vol. III. 
 
 ^ Ord. IX. 15. For form of affidavit, see 
 Vol. III. 
 
 8 Gascovne v. Chandler, 3 Swanst. 418. 
 420, n.; Bousfield v. Moiilii, 1 De G. & S. 
 347; 11 Jur. 902; Ilorton v. Brocklehurst 
 (No. 1), 29 Beav. .503. 
 
 ^ Cliampiiej'.o v. Buchan, 3 Drew. 5. 
 
 5 K()(;ers V. Gore, 17 Ves. 130; Brown 
 r. liicketts, 2 John. Ch. 425. 
 
 6 Wvatt'sP. R. .376; Armistead v. Boz- 
 man, 1 Ired. Eq. (N. C) 117. 
 
 7 iiodne}' V. Hare, Mos. 296; see also 
 Ilealey v. Ja<;ger, 3 Sim. 494, 497. The 
 like permis'^ion has also been given after 
 the cause has been set down for hearing 
 on bill and answer, and a reference ordered. 
 Pierce v. West, 1 Peters C. 0. 351; Smith 
 V. West, 3 John. Cli. 363; Doody v. Pierce, 
 9 Allen. 141. 143, 144. 
 
 8 Ord. XVI. 7; nnte, p. 695, note. 
 
 9 Braitliwaite's Pr. 74.
 
 REPLICATION. 835 
 
 shall be required, at the hearing, of the petitioning creditor's debt, C. XXI. 
 or of the trading or act of bankruptcy respectively, as against any 
 of the parties in such suit, except such parties as shall, Mathin ten 
 days after rejoinder, give notice in writing to the assignees of their 
 intention to dispute some and which of such matters.^ Rejoinder 
 beino- abolished in Equity,^ it seems that the notice must be given 
 within ten days after the filing of replication.* 
 
 1 12 & 13 Vic. c. 106, § 235. s Pennell v. Home, 3 Drew. 337 ; see, 
 
 2 Ord. XVII. 2; ante, pp. 829, 830, note. however, Lee v. Dounistoun, 29 Beav. 465.
 
 CHAPTER XXII. 
 
 EVIDENCE. 
 
 Section I. — Admissions. 
 
 tiled. 
 
 Course to be The causc being at issue, by tlie filing of the replication, the 
 r "iilioatiou "^ next Step to be taken by the plaintiff is to prepare his proofs. The 
 defendant also, if he has any case to establish in opposition to 
 that made by the ]»laintiff, must, in like maimer, prepare to sub- 
 stantiate it by evidence.^ For this })urpose, both parties must first 
 consider : what is necessary to be proved ; and then, the manner 
 in which the ])roof is to be effected; and, in treating of these sub- 
 jects, it will be convenient to consider, shortly, the general rules of 
 e^'idence. With respect to the first point, it may be laid down as 
 an indisputable proposition, that whatever is necessary to suj^port 
 the case of the plaintiff, so as to entitle him to a decree against 
 the defendant, or of a defendant, to support his own case against 
 . that of the [)laintiff, must be proved : ^ unless it is admitted by 
 the other party .^ 
 
 1 In New Hampsliire the rules in Chan- 
 cery provide for the trial of the cMU«e on 
 depositions. " The plaintiff's depositions 
 in chief shall be taken within two months 
 from the expiration of the time allowed 
 for the delivery of the replication, and the 
 defendant's depositions in chief within 
 three months from the same time, unless 
 further time shall be allowed by the Court, 
 or by a .Justice on petition and notice to 
 the other partv." Rule 2.3 of Cliancery 
 Practice. " Rebutting evidence may be 
 taken by either party, within one month 
 after the expiration of the time allowed 
 for taking tlie depositions in chief of tlie 
 defendant. Special orders may be made 
 by the Court or by a Justice, upon peti- 
 tion and due notice, enhirging or reducing 
 tlie time of taking testimouv of either or 
 both the parties." Rule 24, 38 N. H. 606, 
 610. 
 
 In Maine, " all testimony is to be taken 
 in writing, by virtue of a commission is- 
 sued on interrogatories filed with the 
 clerk," &c. The f)rmalities to be ob- 
 Ber\-ed in taking, filing, abstracting, and 
 producing the evidence are minutelv point- 
 ed out in Rules 1-3, 14, 1.5, 16, 17, 18, 
 Chancery Rules, Maine, 37 Me. 585, 586. 
 
 In Massachusetts, the evidence in pro- 
 ceedings in Equity is required to be taken 
 in the same manner as in suits at Law, 
 unless the Court for special reasons other- 
 wise directs; but this does nut prevent the 
 use of affidavits where they have hereto- 
 fore been allowed. Genl. Sts. c. 131, § 60. 
 In this latter State, the plainiiff and the 
 defendant, at any time after the filing of 
 the answer, in a suit in Kquity, maj- file 
 in the clerk's office interrogatories for the 
 discovery of facts and documents material 
 to the support or defence of the suit, to be 
 answered on oath bv the adverse party. 
 St. 1SG2, § 40. The" rules of the Court of 
 Chancery in New Jersey provide for the 
 filing of interrogatories to the plaintiff". 
 Rule 59; 2 McCarter, 525; so in England 
 such interrogatories for the examination 
 of the plaintiff' may be filed under 15 & 
 16 Vic. c. 86, § 19. See ante, p. 758, and 
 post, p. 840. 
 
 '^ Eor what is sufficient to throw upon 
 the defendant the 07ins of denying the 
 plaintiff's case, see Hell v. Wilson, 11 
 Jur. N. S 437, V. C. K. 
 
 8 Nelson v. Pinegar, 30 111. 473.
 
 ADMISSIONS. 
 
 837 
 
 Our object at present, therefore, miist be to consider what ad- 
 missions by the parties will preclude the necessity of proofs ; and 
 it is to be observed that, if evidence is gone into to prove what 
 is admitted, or at an unnecessary or improper length, the costs 
 of such evidence will be disallowed.^ 
 
 Admissions are either: I. Upon the Record ; or, II. By Agree- 
 ment between the Parties.- 
 
 I. Admissions on the Record may be : Constructive, namely, 
 those which are the necessary consequence of the form of pleading 
 adopted ; or, Actual, namely, those which are positively contained 
 in the pleading. 
 
 With respect to constructive admissions, the most ordinary 
 instance of them is, where a plea has been put in by a defendant, 
 either to the whole, or part of the bill : in that case, as we have 
 seen,' the bill, or that part of it which is pleaded to, so far as 
 it is not controverted by the plea, is admitted to be true.^ A 
 plaintiff, thei'efore, where he has replied to a plea, may rest sat- 
 isfied with that admission, and need not go into evidence as to 
 that part of his case which the plea is intended to cover ; ^ unless 
 the plea is a negative plea: for in that case it wdll be necessary for 
 him to pi'ove the matter negatived, for the pui^pose of disproving the 
 plea, in the same manner as he may enter into evidence, for the 
 purpose of dispi'oving matter which has been pleaded affirmatively.® 
 
 Division of 
 admissions. 
 
 I. Admis- 
 sions on the 
 record : 
 
 Constructive 
 admissions : 
 
 In the case 
 of pleas. 
 
 1 Ord. XIX. 1; Harvey v. Mount, 8 
 Beav. 439, 453; 9 Jur. 741; Smith v. 
 Chambers, 2 Phil. 221, 226; S. C. nom. 
 Chambers v. Sniith, 11 Jur. 359; .Mayor, 
 &c., of Berwick v. Murrav, 7 l)e G., M. 
 & G. 497, 514; 3 Jur. i\. S. 1, 5. 
 
 2 As to admissions generally, see the fol- 
 lowing works on evidence; Taylor, § 653 
 tt seq. ; Best, §§ 543, 632 ; Gresley, I't. I. 
 Chaps. 1,2; I'owel), 151. 
 
 8 Ante, p. 614. 
 
 * Gresley Eq. Ev. (Am. ed ) 9. Where 
 the bill charges a lact to be within tlie 
 kiiowleilge ot the defendant, ur which may 
 fairly be presumed to be so, it the answer 
 is silent as to the fact, it will be taken as 
 admittcil. It is otherwise, where the fact 
 is not within tlie knowledge of the de- 
 fendant, nor presumed to be so. Moore v. 
 Lockett, 2 Bibl), 07, 69; .Mitciiell v. Mau- 
 pm, 3 Monioe, lb7; Hardy r. Heard, 15 
 Ark. Ie4; Hooth v. Bootii, 3 Litt. 57; 
 Moseley c. Ga.ssett, 1 .1. J. .Mar-li. 212, 
 215; M'Campbell v. Gill, 4 J. .1. Marsh. 
 HI, 90; Keniiedv /■. .M>.re'litli,3 Hiblj, 466; 
 Pierson i-. Meau.x, 3 A. K. .Marsh. 6; Wil- 
 8<in V. (Jarvcr, 4 llayw. 92; Neal v. Hag- 
 thorp, 3 island, 551; Hank r)f Mobile r. 
 I'liinters' and AlerclianU' Bank, b Ala. 
 772; Sniilie r. Siler, 35 Ala. b>^. But see 
 Ganiiile r. .lohiison, '■) .Mis'iou. 6(i5; Nel- 
 son r. rinegar, 3n HI. 473; De Wolf v. 
 Long, 2 (iilman, 679. liy Kuli^ >•, Cliari- 
 cery Practice in New llainp^hire, all I'afts 
 Weil ulleged in the bill, and not denied or 
 
 explained in the answer, will he held to 
 be admitted." Where a fact is admitted 
 by the answer, the defendant cannot ques-' 
 tion or deny it bv the proofs. Lippencott 
 r. Kidgwaj', 3 Stockt. (N. J.) 526; Wel- 
 der V. Clark, 27 111. 251. The answer of a 
 defendant in Chancerj', being a confes- 
 sion, is always evidence against him, when 
 pertinent, wjioever may have been the 
 parties in the cause in which it was inter- 
 posed. Kiddie r. Debrutz, 1 Havw. 420; 
 Alims r. Mims, 3 J. J. Marsh. "l03, 109, 
 110; Roberts v. Tennell, 3 Jlunroe, 247, 
 249; Hunter v. Jones, 6 Hand. 541; 1 
 Phil. Ev. (Cowen and Hill's ed. 1S39) 
 359, note 642, in 2 ibid ; Cowen and Hill's 
 notes, 926. An answer, ::dmittin<; the cor- 
 rectness of a copy of a deed made bj' an- 
 other person, and to which there was no 
 subscribing witness, is evidence, both of 
 the contents and ol the execution of the 
 deed, against the person making such ad- 
 mission. Adams V. Shelby, 10 Ala. 47h; 
 see Clark v. Sjiears, 7 Bla'ckf 96. The 
 answer, not under oath, may, in relation to 
 its ailmissions, be u.sed aijanist the defend- 
 ant as if it were under oatli. Smith r. 
 Pott'-r, 3 Wis. 432. And tie plaintiff may 
 avail himself of such adnii-sions without 
 thereby makmg the denials evidence tor 
 the ilnlendant. //W. 
 
 '> Tne plaintiH may, however, a.s wc 
 have seen, go into evidence as to his wiiolu 
 ca.se; nntt, p. 014. 
 
 Ante, p. 614.
 
 838 
 
 EVIDENCE. 
 
 c.xxn.§ 1. 
 
 Wlien bill 
 niav bo read. 
 
 Effect of ref- 
 erence to 
 document 
 itself, "for 
 g^reater cer- 
 tainty." 
 
 When de- 
 fendant may 
 read plain- 
 tiff's bill at 
 Law; 
 
 and in 
 Equity. 
 
 Actual luhuissioiis on (he rocofd ;ue those which iippc:ir, either 
 in the bill, or in the answer. 
 
 Tile facts allegetl in a bill, where they are alleged jiositively, 
 are admissions in favor of the defendant, of the facts so alleged ; 
 and, therefore, need not be j)roved by other evidence; for, whether 
 they arc true or not, the plaintiff, by introducing them into his 
 bill, and making them part of the record, precludes liimself from 
 af\er\vards disj>uting their truth. 
 
 The j)Iaintilli of course, cannot read any part of his own bill as 
 evidence in support of his case, unless where it is corroborated by 
 the answer;^ as, where the bill states a deed, or a will, and the 
 delendant, in his answer, admits the deed or will to have been 
 pro})erly executed, and to be to the tenor and effect set forth in 
 the bill : in such case, the jjlaintiff, having read the admission 
 from the answer, may read his bill, to show the extent of the 
 admission made by the defendant. In strictness, however, this 
 can hardly be called reading the bill on the part of the plaintiff: 
 since the reading is only allowed because the defendant, by ad- 
 mitting the statement to be true as set forth in the bill, has, to 
 that extent, made that portion of the bill a part of his answer.^ 
 
 In general, where a defendant refers to a document for greater 
 certainty, he has a right to insist ujjon the document itself being 
 read;^ but the plaintiff need not, on that ground, reply to the 
 answer, but may set the cause down for hearing on bill and answer, 
 and obtain an order to prove the document viva voce or by affi- 
 davit at the hearing : * provided it be such a document as by the 
 rules of the Court hereafter to be noticed, can be proved in that 
 manner.^ 
 
 With respect to the right of a defendant to make use of the 
 plaintiff's bill as an admission of the facts therein stated, it is to 
 be observed, that, at Common Law, the general rule is, that a bill 
 in Chancery will not be evidence, excej)t to show that such a bill 
 did exist, and that certain facts were in issue between the parties, 
 in order to introduce the answer, or the depositions of witnesses ; 
 and that it cannot be admitted as evidence to prove any facts, 
 either alleged or deriied in the bill." In Courts of Equity, how- 
 
 1 The answer of a party in Chvincery is 
 proper evidence sigiiiust him, and so much 
 of tlie bill as is necessary to explain the 
 answer. iMcGoweu v. Young, 2 Stewart, 
 276. 
 
 2 Where, however, an order has been 
 obtained to take tlie bill pro confesso, 
 the bill ma}- be rend in evidence, as an 
 aiiswer admitting the facts. 11 Geo. IV. 
 & 1 Will. IV. c. 36, § 14; ante, p. 531. . 
 
 8 Cox V. Allingham, Jac. 337, 339; Lett 
 V. Morns, 4 Sim. 307, 611; and see ante, 
 p. 726. 
 
 4 Fielde v. Cage, cited Wyatt's P. R. 
 219; cmte, p. 82S. 
 
 6 Post, p. 908 et seq. 
 
 6 Buileau v. Ruilin, 2 Exch. 665; 2 
 Phil, on Evid. 37, 38; Taylor on Evid. 
 § 786; 1 Ptiil. Ev. (Cowen and Hill's ed. 
 1839) 368, 359, note 640 in 2 ihul. ; Cowen 
 and Hill's notes, 923, 924; Rankin «. Max- 
 well, 2 Marsh. (Ken.) 48», 489; Belden v. 
 Davies, 2 Hall (N. Y.), 444; Owens v. 
 Dawson. 1 Watts, 149, 150; Rees v. Law- 
 less, 4 Litt. 218.
 
 ADMISSIONS. 
 
 839 
 
 ever, a different rule prevails, and the bill may be read as evidence, 
 for the defendant, of any of the matters therein positively averred.^ 
 
 But although a defendant has a right to read the plaintiff's bill 
 as evidence against him, such right is confined to the bill as it 
 stands on the. record. If the bill has been amended, the amended 
 bill is the only one upon the record, and the defendant has no 
 right, in that case, to read the original bill in evidence.^ It seems, 
 however, that where the consequence of the amendment has been 
 to alter the effect of the answer to the original bill, or to render it 
 obscure, the defendant has a right to read the original bill, for the 
 purpose of explaining the answer ; * and in a cause in the Court of 
 Chancery in Ireland, Sir Anthony Hart L. C, in deciding upon the 
 question of costs, read from the defendant's oflice copy certain 
 charges in the original bill wliich had been expunged by amend- 
 ment, for the purpose of ascertaining quo animo the bill had been 
 filed.* 
 
 A bill may also be read in evidence against a plaintiff, although 
 filed by him in another suit. In such case, however, it will be 
 necessary to prove that it was exhibited by the direction, or with 
 the privity, of the party plaintiff in it : " for any person may file a 
 bill in another person's name." ^ 
 
 Although a plaintiff, by his replication, denies the truth of the 
 wliole of the defendant's answer, he does not thereby preclude 
 himself from reading whatever portion of it he thinks will supjDort 
 his case : except the answer be that of an infant, which, as we 
 have seen, can never be read to establish a fact which it is against 
 the infant's interest to admit.® The answer of the person under 
 whom he derives title, may, however, be so read; and there- 
 fore it has been held, that itj in a suit to establish a will against the 
 heir, the heir puts in his answer admitting the will, and dies before 
 the hearing, the derivative heir, though an infant, will be bound by 
 the admission, and the execution of the will need not, in such case, 
 be proved.' Of course, if an infant heir is bound by the admission 
 of his ancestor, such an admission will be equally binding \\\)ow an 
 adult. » 
 
 Where a plaintiff proposes to read a passage from the defend- 
 ant's answer as an admission, he nnist read all the circumstances 
 stated in the ])assage ; and if the passage contains a reference to 
 any (^ther ])assage, that other passage must be read also.** But 
 
 C. XXII.§ 1. 
 
 Where, after 
 amendment, 
 original bill 
 may be read. 
 
 Where bill in 
 another suit 
 may be read. 
 
 Admissions 
 by answer; 
 
 but not of an 
 infant. 
 
 When pas- 
 sages of 
 answer, in 
 qualKication, 
 must be read. 
 
 1 Ives V. Medcalfc, 1 Atk. 63, 65. 
 
 2 Hales ». I'orafret, Dan. 141. 
 8 Ibid. 
 
 < Fitzgerald v. O'Kliiherty, 1 Moll. 347. 
 
 6 Wollet V Roberts, 1 Ch. Ca. 64. 
 Ante, p. loy. 
 
 7 Kobin-oii V. Cooper, 4 Sim. 131; 
 Lock V. Foote, ih. 13'2; anlt., p. 172. 
 
 8 Bartlett v. Gillanl, 3 Russ. 149; see 
 also Liid3' Orinond r. lluti.'liin--i)ii, 13 Ves. 
 47,53; Rude «. Wliitciiurcii, 3 Sim. 562; 
 Nurse V. Jlunu, 5 ,Sim. 225; Freeman t). 
 'J'athain, 5 Hare, 3'2!i, 335; 10 .lur. 6b5; 
 and see 'i'aylor on I'ivid. § 060; 1 I'hil. 
 Ev. (Cowen & Mill's ed. 183y) 359, 360, 
 uote 643 in 2 id. 'J26-U28. If on excep-
 
 840 
 
 EVIDENCE. 
 
 C. XXII. § 1 
 
 Answer to 
 i-n.)ss-bill of 
 di.si'ovcrv, or 
 to cross-mter- 
 rt>gatorit's, 
 may be used, 
 like answer 
 to bill tor 
 relief. 
 
 Admissibility 
 of luiswer, as 
 evidenee for 
 defendant. 
 
 What is suffi- 
 cient admis- 
 sion of a fact 
 by answer: 
 
 belief; 
 
 information 
 
 without 
 
 belief. 
 
 wluTO a jtlaiiitift* in reading a passage from a defendant's ansAver, 
 lias Ihh'u oliliged to read an allegation whicli makes against his 
 ease, he will be permitted to read ovidenee to disprove sueh allega- 
 tion.^ 
 
 There was formerly a distinction between bills for relief and bills 
 for discovery, in the right of tlie jdaintiff to read tlie answer of 
 the defendant ; but now, where a defendant in Ecjuity tiles a cross- 
 bill for discovery only against the jdaintilf in Kcjuity, or exhibits 
 interrogatories for his examination, the answer to such cross-bill 
 or interrogatories may be read and used by the party lihng such 
 cross-bill, or exhibiting such interrogatories, in the same manner, 
 and under the same restrictions, as the answer to a bill praying 
 relief may be read and used.^ 
 
 Formerly, when the parties to a cause, could not be witnesses, 
 questions as to reading the answer of the defendant frequently 
 arose ; ^ but they are now of no practical imi>ortance : the answer 
 being almost invariably made evitlence in the cause.* 
 
 With respect to what will be considered as such an admission 
 by an answer as will dispense with the necessity of other prool^ it 
 may be stated, that, besides those expressions which in words 
 admit tlie fact alleged to be true, a statement by the defendant 
 that " he believes," or that he has been " informed and believes," 
 that such fact is true, will be sufficient : unless such statement is 
 coupled by some clause to prevent its being considered as an 
 admission.^ A mere statement, however, in an answer, that a 
 defendant has been informed that a fact is as stated, without an 
 answer as to his belief concerning it, will not be such an admission 
 as can be read as evidence of the fact.® Such an answer is, in 
 eifect, insufficient ; and if the plaintiff, upon reading the pleadings, 
 finds such a statement as to a fact with respect to which it is im- 
 portant to have the defendant's belief, he should except to the 
 answer for insufficiency. 
 
 tions being taken, a second answer is put 
 in, the defendant may insist upon luiviug 
 that also read, to explain what he swore in 
 his first answer. 1 i'hil. Ev. 359, note t>44, 
 in 2 id. 928. 
 
 1 Trice v. Lytton, 3 Russ. 206; see 1 
 Phil. Ev. (Cow'en & Hill's ed. 1839) 359, 
 note, 643 in 2 id. 926, 927. Where an an- 
 swer admits a fact and insists on a distinct 
 fact by wiiy of discharge or avoidance, the 
 latter, even if part of tiie same traii.-action, 
 must be proved by evidence aliunde. 
 Parkes v. Gorton, 3 li. 1. 27 ; Walker v. 
 Berry, 8 Kicli. (». C) 33; Cunnniiis v. 
 (Jummins, 15 111. 33; Stevens v. I'ost, 1 
 Beasley (N. J.), 408, 410, 411; Hart v. 
 Ten Eyck,2 John. Ch. 62; Milieri;. VVack, 
 Saxt, (N. J.) 209; Beckwith v. Butler, 1 
 
 Wash. 224; Thompson v. Lamb, 7 Ves. 
 587. 
 
 2 Old. XIX. 6. 
 
 3 Davis V. Spurling, 1 K. & M. 64, 68; 
 Miller v. Gow, 1 y. & C. C. C. 66, 69; 
 Coniiop V. Hay ward, ib. 33, 34; AUfrey v. 
 Allfrey, 1 M'N. & G. 87, 93; 13 Jur. a69. 
 
 ■* See ]}Ost, p. 843, n. 3. 
 
 6 See Potter v. Potter, 1 Ves. S. 274; 
 Hill V. Biniiey, 6 Ves. 738; and see Wood- 
 hatcii V. l-ree"land, 11 W. U. 398, V. C. K.; 
 see also Bird v. Lake, 1 11. &. M. 111. An 
 answer aamitting a verbal agreement al- 
 leged in the bill, but insisting on the Stat- 
 ute ut Frauds, cannot be read as an ailiuis- 
 sionoftiieaf^reement. Jackson u. Ugiander, 
 2 11. cSi iM. 465. 
 
 6 1 Piul. Ev. (Cowen & Hill's ed. 1839) 
 360, note.
 
 ADMISSIONS. 
 
 841 
 
 It has been before stated, that the answer of an infant, being in 
 fact the answer of his guardian, cannot be read against him.^ The 
 answer, however, may, it seems, be read against the guardian ; and 
 in Beasley v. Magraih^ the answer of an infant, by his mother 
 and guardian in another cause, was read against the mother in her 
 own capacity. And it seems, that where a defendant, being an 
 infant, answers by guai-dian, and, at full age, neither amends nor 
 makes a new answer, as he may do, but prays a hearing of the 
 cause de novo^ his answer is evidence against him.® 
 
 The answer of an idiot or lunatic, put in by his committee, may 
 be read against him ; and it has been held, that the answer of a 
 person of Aveak intellect, put in by his guardian, could also be read 
 against him;* but it is doubtful if this decision would now be 
 followed.® 
 
 For the rules of practice with regard to reading the answer of 
 married persons, the reader is referred to a former portion of this 
 Treatise.^ 
 
 The plaintiff cannot, of course, read the answer of one defendant 
 against a co-defendant as an admission : "^ and, as a general rule, it 
 cannot be read as evidence, except on motion for a decree, where 
 
 C. XXII. § I. 
 
 1 Ante, p. 169; Gresley Eq. Ev. (Am. 
 ed. ) 323. 
 
 - 2 Sch. & Lef. 34. 
 
 8 Hinde, 422. 
 
 * Levin^ V. Caverley, Piec. in Ch. 229. 
 
 6 Ante, pp. 177, 178; Micklethwaite v. 
 Atkinson, 1 Coll. 173; Percival v. Caney, 
 4 De G. & S. 610; 14 Jur. 1056, 1062; S. 
 C. nom. Stanton r. I'ercival, 3 W K. 391; 
 24 L. J. Cb 369, H. L. 
 
 6 Ante, pp. 184, 185. 
 
 " .Jones V. Turberville, 2 Sumner's Ves. 
 Jr. II, note (6j; 4 Bro. C. C. 115, S. 
 C. ; 1 Greeul. Ev. § 178; 1 Phil. Ev. 
 (Cowen & Hill's ed. 1839), 362, note 
 650, in 2 id. 931; I'orter v. Bank of 
 Rutland, 19 Vt. 410; Blodget v. Hobart, 
 18 Vt. 414. It seems to be a well estab- 
 li'ihed general princi|)le, that tlie an- 
 swer of one defendant cannot be read in 
 evidence again-'t a co-defemlant, il there 
 is no joint interest, privity, fraud, collu- 
 sion, or combination betwet-n them. Jones 
 r. Jones, 13 Iowa (5 With.), 276; Kust ». 
 Mansfield, 25 111. 336; Williamson v. llav- 
 cock, 11 Iowa (3 With.), 40; .MobleyV. 
 Dubuque, &c., Co., 11 Iowa(3 With.), 71; 
 Judd V. Seaver, 8 I'aige, 64«; Hay ward «. 
 Carroll, 4 ilarr. Ik, .1. 518; SinKielon v. 
 (i.iyie, 8 TortiT, 271; Connvr )'. Ciiase, 15 
 Vt. 764; rii'imas^un v. Tucker, 2 Blackf. 
 172; Ai-'Seli-y v. Armstrong, 3 .Monroe, 
 389; Kobin-oii v .Snnipsnii, 23 .Maine, 388; 
 Webb ('. Pell, 3 I'aigc, 36>i; Collier v. 
 Cnnpmaii, 2 Stew. 163; Cliaml)liHS v. 
 Smith, 30 .\l:i. .366; Graham »'. Sublett, 6 
 J. .1. Marsh. 115; M'Kiin j^ Thompson, 1 
 Bland, 160; Calwell v. Boyer, 8 Gill & J. 
 
 136; Dexter v. Arnold, 3 Sumner, 152; 
 Felcli -e. Hooper, 20 Maine, 159; Clarke v. 
 Van Iteimsdyk, 9 Craiich, 152, 156; Leeds 
 V. Mar. Ins. Co. of Alex , 2 Wheat. 380, 
 383; Dade v. Madison, 5 Leigh, 401 ; Dan- 
 iel (I. Bouliard, 2 Dana, 296; Field v. Hol- 
 land, 6 Crancli, 8; Fanning v. Pritchett, 
 6 Moniod, 79, 80; Roundlett v. Jordan, 3 
 Gieenl. 47; Mills v. Gore, 20 Pick. 34. 
 The answer of one defendant is not evi- 
 dence against the other defendant, though 
 ])rior to tlie filing of the answer the former 
 may have transferred to the latter all his 
 interest in the subject-matter ol' the con- 
 troversy. Jones V. Hardesty, 10 (Jill & .1. 
 404; see also Ha worth v. Bo^tock, 4 Y. 
 & C. 1; Lewis r. Owen, 1 Ired. Eq. 290; 
 Iloare v. Johnstone, 3 Keen, 553; Osborne 
 V. U. States Bank, 9 Wheat. 738. But 
 the answer of a defendant, which is re- 
 sponsive to the bill, is admissible as evi- 
 dence in favor of a co-defendant, more 
 especially where sucli co-defendant, being 
 the dejio-^itarv of a chattel claimed by the 
 plaintitf, defends himself under the title 
 of tlie other defendant. Mills v. Gore, 20 
 Pick. 28; but see Morris v. Nixon, 1 How. 
 U. S. 118; Cannon «». Norton, 14 Vt. 
 17><. Tlie deposition of a party in Chancery, 
 read without objection, is evi<lL'nce lor his 
 co-iiefendant. i'letclier v. Wier, 7 Dana, 
 354; see Wolley y. Brownliill, 13 Price, 
 600; S. (J. 1 M'Lel. 317. If a defend:int 
 in his argument relies on the answer of 
 his co-ilelend;int, he thereby makes it evi- 
 dence against himself. Chase v. Man- 
 hardt, 1 Bland, 336. 
 
 nunst 
 
 guardian ; 
 where evi- 
 dence against 
 infant. 
 
 Answer of 
 person of 
 weak 
 
 intellect, or 
 idiot, or 
 lunatic. 
 
 Answer of 
 husband and 
 wife. 
 
 In what 
 cases the an- 
 swer of one 
 defendant 
 may be read 
 against 
 another.
 
 842 
 
 EVIDENCE. 
 
 r.xxil. §1. notice of tlio intention to rend it lias boon given. ^ Tlius, in 
 '— — N ' Morse v. Jioyal^' tlie answer of an executor was oftered as evi- 
 dence against the residuary legatee, wlio liud been made a j)arty 
 to the suit; but Lord Krskine refused to receive it for any otlier 
 purpose than tliat of showing wliat funds came to tlie liands of the 
 executors, what debts there were, and the vahie of tlie estate. In 
 cases, however, where the right of tlie phiintitf, as against one 
 defendant, is only prevented from being (H)mplete by s(mie ques- 
 tion bi'tweeii the jilaintitf and a second defendant, the |)lnintiff is 
 permitted to read the answer of such second defendant, for the 
 purpose of completing his claim against the first ; * and where 
 several persons are mutually interested as partners, or jointly 
 liable as the co-obligors of a bond, the declarations or answers of 
 one may be admissible against the others.* 
 
 Cases, moreover, have occurred, in which a defendant has, by 
 the form of his answer, made the answer of a co-defendant evi- 
 dence against himself; as, where a defendant stated in his answer 
 that he w^as much in years, and could not remember the matter 
 charged in the bill, but that J. S. was his attorney and transacted 
 the matter, whereupon J. S. w^as made a defendant, the answer 
 
 "WTiere 
 answer of 
 another de- 
 fendant is 
 relerred to. 
 
 1 15 & 16 Vic. c. 86, § 15 ; Cousins v. 
 Vasey, 9 Hare Ap. 61; Dawkins v. Mor- 
 tan, i J. & H. 339; Stephens «. Heathcote, 
 1 Dr. & S. 138; 6 Jur. N. S. 312; ante, p. 
 821; see Fielden v. Shiter, L. R. 7 Eq. 
 523. 
 
 2 12 Ves. 355, 361; see also M'Intosh v. 
 Great Western Railway Companv, 4 De 
 G. & S. 544 ; VVych v. Meal, 3 P. Wms. 
 310; and Gibbons i'. Waterloo Bridge 
 Company, 1 C P. Coop. t. Cott. 385, 
 where the answer of the officer of a cor- 
 poration was not allowed to be read 
 against the corporation. Taylor on Evid. 
 § 684. 
 
 3 Green v. Pledger, 3 Hare, 165, 170; 
 8 Jur. 801; and generally, concerning 
 the circumstances in which the Court 
 will try and decide a case between co-de- 
 fendants, see Cottingliam v. Lord Shrews- 
 bury, 3 Hare. G27, 638; Lord Cliamley v. 
 Lorii Dunsany, 2 Sch. & Lef. 690. 706, 709, 
 H. L. ; Farquharson v. Seton, 5 Russ. 45, 
 62; Smith v. Baker, 1 Y. & C. C. C. 223, 
 228; Fletcher «. Green (No. 2), 33 Beav. 
 513. 
 
 4 Crosse v. Bedingfield, 12 Sim. 35, 39; 
 5 Jur. 836; but the answer of a defendant 
 who has become bankrupt, and ceased to 
 be a partner, cannot; Parker v. Moirell, 2 
 Phil. 453, 463; 12 Jur. 253; see 1 Greenl. 
 Ev. § 178; Clarke v. Van Reimsdvk, 9 
 Cranch, 153, 156; Williams v. Hodgson, 2 
 Harr. & J. 474, 477; Van Reimsdvk v. 
 Kane, 1 Gall. 630; Hutchins v. Childless, 
 4 .Stew. & P. 34; Gilmore v. Patterson, 
 36 Maine, 544; Clayton v. Thompson, 13 
 Geo. 291. Upon a bill in Equity by one 
 partner against his copartners for an ac- 
 
 count, the answer of one of the defendants 
 will not be evidence to charge another. 
 Chapin v. Colman, 11 Pick. 331. But if 
 it appears that the defendants, as consti- 
 tuting a partnership among themselves, of 
 the one part, were in [lartnership with the 
 plaintifl" of the other part, the answer of 
 one of the defendants would be evidence 
 to charge the others. Jbid. ; see also Judd 
 V. Seaver, 8 Paige, 548; Van Reimsdyk v. 
 Kane, 1 Gall. 630; Winchesters. Jackson, 
 3 Hayw. 310; Rector «. Rector, 3 Gilman, 
 lOo. The answer of a wife is not evidence 
 against her husband. '1 he City Bank v. 
 Bangs, 3 Paige, 36. Nor is the answer of 
 an obligee, evidence against his previous 
 assignee, a party in the same suit. Fan- 
 ning V. Pritchett, 6 Monroe, 79; furner v- 
 Holman, 5 Monroe, 411. Nor is the an- 
 swer of a principal debtor, admitting his 
 insolvency, evidence against his surety, 
 a co-defendant, at the suit of a co-suret}- 
 for contribution. Daniel v. Bullard, 2 
 Dana, 296. A fortiori, it follows that the 
 mere silence of one defendant is no evi- 
 dence against his co-defendant. Timber- 
 lake ». Cobbs, 2 J. J. Marsh. 136; Blight 
 V. Banks, 6 Monroe, 192; Harrison ». John- 
 son, 3 Litt. 286. 
 
 The rule that the answerof one defend- 
 ant cannot lie read in evidence against 
 his co-defendant, does not apply where the 
 latter claims through him whose answer is 
 ofliered in evideoce. 1 (ireenl. Ev. § 178. 
 Nor where one defen<lant in his answer 
 refers to the answer of his co-defendant. 
 Anon., 1 P. Wms. 301; Dunham v. Gates, 
 3 Barb. Ch. 196; Blakeney v. Ferguson, 
 14 Ark. 641.
 
 ADMISSIONS. 
 
 843 
 
 was allowed to be read against the original defendant : Lord 
 Cowper being of opinion, that the words in the first answer 
 amounted to a reference to a co-defendant's answer.^ 
 
 Interpleader suits form an exception to this rule ; and the answer 
 of one defendant may be read against a co-defendant, to show that 
 adverse claims are made.^ 
 
 It is to be observed, that where an answer has been replied to 
 generally, it cannot (except by consent) be read as evidence on 
 the part of the defendant himself.^ In disposing of the question 
 of costs, however, the Court will permit the defendant's answer 
 to be read in his own behalf; * and it has been held, that a peer's 
 answer upon protestation of honor. may also be read on the ques- 
 tion of costs, on behalf of the defendant who has put it in.^ 
 Moreover, the Court itself will look at the answer: not as evi- 
 dence, but as what may regulate its discretion with respect to the 
 further investigation of particular facts.® 
 
 Although a defendant cannot read his own answer as evidence 
 for himself, as to any other point than that of costs, he is entitled 
 to have the benefit of his answer, so far as it amounts to a denial 
 of the plain tiflf's case, unless the denial by the answer is contra- 
 dicted by the evidence of more than one witness : the rule of 
 Courts of Equity Ijoing, that where the defendant, in express terms, 
 negatives the allegations in the bill, and the evidence is that of 
 only one person affirming what has been so negatived, the Court 
 will not make a decreed The denial, however, by the answer, 
 
 C. XXII. § 1. 
 
 In intei^ 
 pleader suits. 
 
 Answer 
 replied to, 
 cannot be 
 read by 
 defendant 
 himself; 
 except on 
 question of 
 costs. 
 
 Where only 
 one witness 
 in opposition 
 to defend- 
 ant's answer: 
 
 1 Anon., 1 P. VVm'!. 301. 
 
 2 Mastermaii v. Price, 1 C. P. Coop. t. 
 Cott. 3b3; Chevet v. Jones, ibid. ; 6 Mad. 
 267; and see post. Chap. XXX IV. § 3, 
 BilU of Inttrpltadtr. 
 
 8 \\ here a defendant has filed an an- 
 swer, and it has been re[)lied to, it is now 
 a common practice to file a short affidavit 
 by him, verifying the statements of liis an- 
 swer, in order to make it evidei.ce on his 
 own behalf. Barmck v. M'Culloch, 3 K. 
 & J. 110; 3 .Jur. N. S. IfeO; imd si;e Wil- 
 liams V. VVilliiims. 10 .Jur. N. b. 608; 12 
 W. H. 663, V. (J. K. For forms of atlida- 
 vit, see Vol. HI. 
 
 ■* Vancouver v. Bliss, 11 Ves. 458; 
 Howell V. George, 1 Mad. 1, 13; and see 
 Mori^an c& Davey, 85; and jMSt, Chap. 
 X.\XI. § 1, Cost's. 
 
 '> Oaw-on t'. Klhs, IJ. & W. 624, 626. 
 
 6 Miller r. (iow, 1 Y. & C. C. C. 66, 69. 
 
 ' I'emlier v. Mather^, 1 Bro. C. C. 52; 
 see al.-<o Kinglome r. lioakes, Prec. in Cli. 
 19; Wak.-hn v. VSalthal, 2 Cli. Ca. 8; 
 Alain i". .luurdan, 1 Vern. 161; Christ's 
 Coll. <.'am. r. Widdrington, 2 Vern. 283; 
 Hine V. Dodd, 2 Atk. 276; (Jlyiin v. Hank 
 of England, 2 Ves. S. 38; Mortimer «. Or- 
 chiird, 2 Ves. .J. 243 ; Lord Cranst'iwn v. 
 Johnston, 3 Ves. 170; ('ooth v. .JiK-kHon, 6 
 Ves. 40; livans v. Bicknell, ib. 174, 183; 
 
 Cooke V. Clav worth, 18 Ves. 12; Holder- 
 nesse v. Rtnkiii, 2 De G., F. & J. 258, 272; 
 6 Jur. N. S. 903; and see Williams v. 
 Williams, 10 Jur. N. S. 60S; 12 W. U. 663, 
 V. C. K. Where a replication is put in, 
 and the parties proceed to a hearing, all 
 the allegations of tiie answer which are 
 responsive to the bill, shall be taken as 
 true, unless they are disproved bj' evidence 
 of greater weight than the testimony of a 
 single witness. This maj' result from the 
 testiinonj' of two witnesses, or of one witli 
 coiTOt)oratiiig circumstances; or from cor- 
 roboitiiing ciicumstances alone; or from 
 documentary evidence alone. Pierson v. 
 (Sutler, 5 V t. 272; Dunham v. Gates, 1 
 H.;tf. Ch. 188 ; Hart v. Ten K^-ck, 2 
 John. Ch. 92 ; Watkins v. Stockett, 6 
 Uarr. & J. 435; Hughest'. Blake, 6 Wheat. 
 468; Piersi>n V. Clayes, 15 Vt. 93; Gould 
 V. Williamson, 21 Maine, 273; Johnson i'. 
 Richardson, 38 N. H. 353; Moors v. Aloors, 
 17 N. H. 483; Robinson v. Stewart, 10 N. 
 Y. 189; Miles v. Miles, 32 N. II. 147; 
 ('amp V. Simon, 34 Ala. 12(); Davis ». 
 Sti^vens, 3 (JIarke (Iowa), 108; I'anton v. 
 Tefff, 22 III. 366; Pusey v. Wright, 31 
 I'l-iiii. (State) 387; Speiice v. Dodd, 19 
 Ark. 166; Hill v. Bush, 19 Ark. 522; 1 
 Greenl. Kv. § 260; (inslcy Iv). Kv. 4; 
 Clarke v. Van Reimsdyk, 9 Crunch, 160; 
 
 no decree, if 
 answer posi- 
 tive,
 
 844 
 
 EVIDENCE. 
 
 (\ XXII. § 1. n\ust ill such cases be ])ositive : otlienvise, the rule will not apply ; 
 
 ■J Storv Kq. .liir. § ir)2S; Hollistor f. Rnrk- 
 loy, 11 N. II. Ml; Liinf,'<i«ii i". CodilunI, 2 
 Storv, 2ii7; KnlnTts r. Siilisbuiv, ;( (Jill & 
 .1. 425; I'liircll r. I'urci-li, 4 IIlmi. & M. 
 (ioT: M'C'uw.ii r. Younj;, 2 Sti'w. & 1'. 
 Itil ; Alc.>ciuuler r. WaliiK-c, 10 YtTiiiT, 116; 
 Daiiii'l ('. Miii-lii'll, 1 Storv, 172; i^eviller. 
 l>iMiiiMitt, 1 liri'on Ch. 322; Hetty r. Tay- 
 lor, 5 Pana, ^>!»^; limy c. Fan.s, 7 Yor. er, 
 155; .lohn.'ion i". Sliiwsen, 1 IJailcv Kq. 463; 
 Mason r. I'eck, 7 .1. .). MmpsIi. a'oi; Story 
 V.q. \'\. §§ ^4it rt,K75 a; Statrordr Hryaii, 
 1 raig»','28ii; Clark i'. Diiklfy, 4 Ark. "2;3tj; 
 Towiic V. Siiiith, 1 Wood. 1.^ .\1. 115; (ireen 
 V. laiiiier, 8 Mot. 422; Ciisliiiin; r. .Smith, 
 8 Story, 656 ; Hough r. Uioli»rd>on, 3 Story, 
 e5U, 6y2; Gould r. Gould, 3 Story, 51C, 540; 
 Joiie'« t'. Holt, 2 tiill, 10(i; Monilee r Meni- 
 fee, 3 English, d; Murg:in v. 1 ilUon, 3 
 McLean, 339 ; Ajipieton v. Morton, 25 
 !Maine, 23; Eastman v. McAlnice, 1 Kelly, 
 157; Tobev v. Leonard, 2 WiiUiice U. S. 
 423; O'Hannun v. Myer, 36 Ala. 551; 
 Benson r. Wuoiverton, 2 McCarter (N. J.), 
 15S; Hird v. Styles, 3 C. E. Ureen (N. J.), 
 297; Vandegntt v. Herbert, 3 C. K. Green 
 (N.J.),466; Hvnsoii ». Voshell,26 Md. 83, 
 94; De Hart v. Haird, 4 C. E. Green (N. 
 J.), 423; Hughes v. Blackwell, 6 Jones 
 Eq.. (N. C.) 73; Hill v. \\'illiaiiis, 6 Jones 
 Eq. (N. C) 242; Stephen.s v. Onnan, 10 
 Elorida, 9 ; Barton v. Moss, 32 111. 50 ; Dun- 
 lap r. Wilson, 82 111. 517; .Myers r. Kinzie, 
 26 III 36; White v. ilamp"ton, 10 Iowa, 
 238; Gilk-tt t'. Kobbins, 12 Wis. 319. The 
 right ot a defendant in a bill in Chancery 
 to have his answer thereto taken in evi- 
 dence, is co-extensive with his obligation 
 to answer. Blaisdell v. Bowers, 40 Vt. 126. 
 The statute of Vermont, providing that 
 parties .shall not testily in their own behah, 
 in certain cases, does not apply to an an- 
 swer to a bill in Chancery, but the an- 
 swer, when responsive, is evidence, and is 
 rot affected by that statute. Blaisdell v. 
 Bowers, ubi supra. The plaintiff is not 
 allowed to impeach the eliaracter of the 
 defendant, for truth and veracii}', but must 
 overcome his answer by .stronger evidence. 
 Vandegrift v. Herbert, 3 C. E. Green (N. 
 J.), 469; Brown v. Bulklev, 1 McCarter 
 (N. J.), 294; Chambers?;. VVarren, 13 III. 
 321; Butler v. Catling, 1 Root, 310; Sal- 
 mon V. Glaggett, 3 Bland, 165; but see Mil- 
 ler?;. Tolleson, 1 Harp. Ch. 145. The opera- 
 tion of the defendant's answer is the same, 
 although the equity of the plaintiff's bill is 
 grounded on the wllegation of fraud. Dilly 
 V. Barnard, 8 Gill & J. 171; M'Uouald v. 
 M'Cleod, 1 Ired. Eq. 226; Lewis j;. Owen, 
 1 Ired. Eq. 290; Murray r. Blatchford, 1 
 Wend. 683; Cunninghuin v. Freeborn, 3 
 Paige, 557 ; Graham v. Berr3'nian, 4 C. E. 
 Green (N. J), 29; Blanton v. Brackett, 6 
 Coll. 2.32; Green v. Vaughan, 2 B.ackf. 
 324; Hart v. Ten Evck, 2 John. Ch. 92; 
 Wight V. I'rescott, 2 Barb. Ch. 196. The 
 defendant is as much boui.d to answer 
 the charging part as the stating part of the 
 bill; and his answer to the charging part, 
 
 if responsive thereto, is evidence in his 
 own favor, if an answer on oath has not 
 been waived by the plaintilf. Smith v. 
 Clnrk, 4 I'aige, 368; Uich v. Austin, 40 Vt. 
 416; Adams v. Adams, 22 Vt. 68. Wiiere, 
 however, the answer i^f the defeudant is 
 not responsive to the bill, or sets up allirm- 
 ative allegations of now matter not slated 
 or inquired of in the hill, in o])position to, 
 or in avoidance of, the plaintiff's demand, 
 and is replied to, the imswer is of no avail 
 iu respect to such allegations; and the de- 
 fendant is as much bound to establish the 
 allegations so made, by independent testi- 
 mony, as the plaintiff is to sustain his bill. 
 Bellows V Stone, 18 N. H. 466; Wakeman 
 V. Grover, 4 I'aige, 23; New England Bank 
 V. Lewis, 8 rick. 113; Hart v. Ten Eyck, 
 
 2 John. Ch. 89; Dickey v. Allen, 1 Green 
 Ch 406; Bradley v. Webb, 53 Maine, 462; 
 O'Brien i'. Elliot, 15 Maine, 126; Lucas v. 
 Bank of Darien, 2 Stewart, 280; Wirians 
 V. Winans, 4 C. I'^. Green (N. J.), 220; 
 Pierson v. Clayes, 15 Vt. 93 ; Wells v. 
 Houston, 37 Vt. 245; M'Daniel?;. Barnam, 
 5 Vt. 279; Tobin v. Walkin.shaw, 1 McAU. 
 C. C. (Cal.) 26 ; Pusey v. Wright, 31 Penn. 
 St 387; Garlick r. McArthur, 6 Wis. 450; 
 Ives V. Hazard, 4 K. 1. 14 ; Dease v. Moody, 
 
 31 Aliss. (2 George) 617; Fisleri;. Porch, 2 
 Stockt. (N.J) 243 ; Voorhees v. Voorhees, 
 
 3 C. E. Green (N. J ), 223; Miles v. Miles, 
 
 32 N. H. 147; Busbv r. Littlefield, 33 N. 
 H. 70; Rogers v. Mi'tchell, 41 N. II. 157; 
 Leach t'. hobes, 11 Gray, 509; M'Donald 
 V. M'Donald, 16 Vt. 630; Randall v. Phil- 
 lips, 3 Mason, 378; Gordon v. Suns, 2 
 M'Cord Ch. 156 ; Clarke i'. Whito, 12 
 Peters, 178; Lampton v. Lampton, 6 Mon- 
 roe, 620'; Purcell v. Purcell, 4 Hen. & M. 
 511; Hagthorp I'. Hook, 1 Gill &. J. 272; 
 Alexander v. Wallace, 10 Y'erger, 105; 
 Carter v. Sleeper, 5 Dana, 263; Elagg v. 
 Mann, 2 Sumner, 487 ; Cocke v. Trotter, 10 
 Y'erger, 213 ; Gould v. Williamson, 21 
 Maine, 273; Story Eq. PI. § 849 a; Jones 
 V. Jones, 1 Ii-ed. Eq. 332; Johnson v. Pier- 
 son, Dev. Eq. 364; Miller y. Wuck, 1 Sa-x:- 
 ton (N. J.), 204 ; Pierce v Gates, 7 
 Biaekf 162; Dunn v. Uunu, 8 Ala. 784; 
 Sanborn 0. Kittredge, 20 Vt. 632; Fitzhugh 
 V. M'Pherson, 3 Gill, 408 ; Patton v. Ash- 
 ley, 3 Engli.sh, 290; Brooks v. Gillis, 12 
 Sm. & M. 53^. The bill set out an agree- 
 ment, and called upon the defen lant to 
 admit or deny it, but not to state what it 
 Was, and the defendant in his answer set 
 forth another agreement ; such statement of 
 the latter agieemenc is not responsive to 
 the bill, and is not evidence for the de- 
 fendant. Jones P. Beet, 2 Gill, 106. An 
 answer, in stating the particulars of a 
 transaction charged and inquired into by 
 the bill, is responsive. Merritt v. Brown, 
 4 C. E. Green (N. J.), 286, 289 ; Youle 
 V. Richards, Saxton (N. J.), 639. If 
 the bill requires the defendant to state 
 an account between the parties, the ac- 
 count so stated is responsive to the 
 bill. Bellows V. Stone, 18 N. II. 465. If
 
 ADMISSIONS. 
 
 845 
 
 as where a defendant, by his answer, denies a fact as to his belief C. xxii. § i. 
 
 the defendant might have fully answered 
 the plaintiff's bill, and left out any par- 
 ticular allegations of new matter in his 
 answer, then those allegations are not re- 
 sponsive, but all allegations are responsive, 
 the absence of which in the answer would 
 furnish just ground for exception. Bellows 
 V. Stone, 18 N. H. 465. But when the 
 case is heard upon the bill and answer 
 alone, the answer must be taken as true, 
 whether responsive to the bill or not, be- 
 cause the defendant is precluded from 
 proving it. Lowrv v. Armstrong, 2 Stew. 
 & P. 297: Cheny' r. Belcher, 5 Stew. & 
 P. 134; M'Gowen v. Young, 3 Stew. 
 & P. 161; Paulling v. Sturgis, 3 Stew. & 
 P. 95; Stone v. Moore, 26 111. 165; Doo- 
 little V. Cooking, 10 Vt. 275; Slason i'. 
 Wright, 14 Vt. 208 ; Wright v. Bate.s, 13 
 Yt. 341; Dale tv M'Evers, 2 Cowen, US ; 
 Reed v. Keed, 1 C. E. Green (N. J.), 248 ; 
 Jones V. Mason, 5 Hand. 577; Kennedy v. 
 Savior, 1 Wash. 162; Copeland v. Crane, 
 9 Pick. 73; Tainter i'. Clark, 5 All-n, 66; 
 Perkins v. Nichols, 11 Allen, 542; Russell 
 r. Moffit, 6 Hnward (Miss.), .303; Trout v. 
 Emmons, 29 III. 433; Buntain r. Wood, 29 
 III. 504 ; Gaskill r. Sine, 2 Bea.^lev { N. .1. ), 
 130; Mason v. McGore, 28 111. 3225 DeWolf 
 V. Long, 2 Gilman, 679 ; Rogers v. Mitchell, 
 40 N. H. 154; Rogers v. Mitchell. 41 N. H- 
 154. Still, general allegations in an an- 
 swer, containing matters of btdief and con- 
 clusion< from facts not particularly stated, 
 are said bv VVilde J. in Copeland r. Crane, 
 9 Pick. 73", 78, to b^' entitled to little or no 
 weight in a hearing on the bill and answer. 
 See Beford v. Crane, 1 C. E. Green (N. J.), 
 265. Such an answer, however, is sufli- 
 cient to put the plaintiff to the proof of his 
 case; the Court in such a case, will believe 
 what the defendant believes, nothing being 
 found to the contrary Buttrick v. Holden, 
 13 Met. 355, 357. -And so far as his answer 
 is a mere denial of the plaintiffs case, of 
 cour-e it prevails. It is for the plaintiff to 
 prove the allegations in the bill which are 
 denied by the answer. But wlieti the 
 answer admits the plaintiffs case, and 
 seeks to avoid it, by general allegations of 
 the character above alluded to by Mr. .Jus- 
 tice Wilde, then the question of its effect, 
 as an answer, properly arises, and un- 
 douhteillv, in such a case, it would be en- 
 titled to liut little weight. See Givens v. 
 Tidniore, 8 Ala. 745. An answer, which 
 alleges as facts what the defendant could 
 not personally know, though responsive to 
 the bill, merely jiuts the plaintiff upon the 
 pr'iof of his own allegations. Diigan v. 
 Gittings, 3 Gill, 138; see Ururv i'. Conner, 
 6 Marr. & .1. 288, 2'Jl. So of'a denial by 
 the defendant ujion information and belief, 
 not founded on the personal knowledge 
 of the "lefendant. (Jolctnan v. Ross, 46 
 I'enn. St. 1><0; Newman v. .lames, 12 
 Ala. 2'J; Townsend i". Mclnlosh, 14 Iiid. 
 57; llartwell «. VMiitmaii, 36 Ala. 712; 
 itee B<-llows v. Stone, 18 N. II. 46.'), 
 479. As to the effect of the answer of 
 
 a corporation being put in, not under oath, 
 but under the common seal of tlie corpora- 
 tion, see Haight i\ Proprietors of Morris 
 Aqueduct, 4 Wash. C. C 601; Angell & 
 Ames Corp. § 665; Lovett r. Steam Saw 
 Mill Ass., 6 Paige, 54 ; State Bank v. Ed- 
 wards, 20 Ala. 512: Union Bank v. Geary, 
 5 Peters, 99 Such answer has no other 
 force and effect than that of an individual 
 not under oath. Maryland and New York 
 Coal and Iron Co. v. Wingert, 8 Gill, 170. 
 As to the effect of an answer, made by one 
 incompetent to give testimony in any case, 
 and incapable of making oath, see Salmon 
 V. Clagett, 3 Bland, 125. The oaths of 
 two plaintiffs in the same cause, made, by 
 the statute of New Jersey, competent wit- 
 nesses for themselves, will not be considered 
 as destroying the effect of the responsive 
 denial of the answer, unless thev seem to 
 the Court to be entitled to the weight of 
 the oaths of two credible witnesses; and, 
 in considering their weight, the fact of the 
 interest of these witnesses as parties to the 
 suit, must be taken into coiisidevatii n. 
 Vandegrift v. Herbert, 3 C. E Green (N. 
 J.), 466. It has been stated above, in this 
 note, that the plaintiff will not be allowed 
 to discredit the answer by impeaching the 
 character of the defendant for truth and 
 veracitv. This subject was very fully ex- 
 amined by Chancellor Green, in Brown v. 
 Bulkley, 1 MeCarter (N. J.). 294, and he 
 entirely sustains this position But in the 
 arguinent of the point he said: '• Perhaps 
 the most plausible reason in favor of a 
 ciiange of the practice will be found in the 
 fact, that now by statute the parties may 
 offer themselves as witnesses. And as the 
 defendant may discredit the plaintiff s evi- 
 dence by impeaching his character, the 
 plaintiff should have the like privilege of 
 discrediting the defendant's answer by 
 impeaching his character. But it must be 
 borne in mind that the liberty of being a 
 witness for himself, is a privilege accorded 
 to the plaintiff, and he can surely ask no 
 greater advantage on that account, nor 
 can he ask to stand in a better position 
 than a disinterested witness. It is obvious, 
 moreover, that as the rule was established 
 and J^cted upon when the plaintiff was ex- 
 cluded from being a witness, there is less 
 reason for a change now that the plaintiff 
 has the benefit of his own testimonv." I 
 MeCarter, 307. 
 
 Under the Practice Act in California, 
 a sworn answer is no evidence ha- the 
 defendant. Goodwin t\ Hammond, 13 
 Cal. 168; Bostic tv Love, 16 Cal. 69. 
 And in .Mi.ssouri the old rule with re- 
 s])ect to the weight of an aii-wer in Chan- 
 cery has been done aw'V with by the 
 new code. Walton v. Walton, 17 Mis8. 
 (1 Bennett), 376. So in Iowa, the rule 
 requiring two witnesses, or one ami strong 
 corroborating circumstances, to overcome 
 tin- answer, doifs nut exist; thongli such 
 answer throws upon the plaintilf the (iriiit 
 of sustaining bis material charges by coin-
 
 846 
 
 EVIDENCE. 
 
 r. XX11.§ 1. 
 
 only ; ^ or wlierc it is a more constructive doninl, by the filing of 
 a traversing note.'"^ 
 
 Tlie reason for the adojition of this rule, by the Courts, was : 
 because, there being a single deposition only, against the oath of 
 the defendant in his answer, the denial of facts by the answer was 
 equally strong with the afUnnation of them by the deposition.^ 
 Where, tlieri'tore, there were any corroborative circumstances in 
 favor (if (he ])laintiff''s case, which gave a preponderance in his 
 favor, the Court departed from the rule, and either made a decree, 
 or directed an issue.* Thus, where a bill was filed for the specific 
 
 petent proof. Graves v. .Aldeii, 13 Iowa 
 (!'i With), 573: Jones i\ Jones, 13 Iowa (5 
 With ), 276; Cheuvette v. Mason, 4 Green 
 (lowii), 231; Cnlbertsoii v. Liu'kev, 13 
 Iowa (5 With.), 12; AVhite v Hampton, 10 
 Iowa, 238; Gilbert v. Mosier, 11 Iowa, 498. 
 A sworn answer in Chancery, it' not de- 
 niamled, only puts in issue the allegations 
 of the bill. Wilson r. llolconib, 13 Iowa 
 (5 With.), 110; Connelly v Carlin, ih 383. 
 An answer in Chancery without an oath is 
 a mere pleading, and of no effect as evi- 
 dence. Monis V. Ho3't, 11 Mich. 9. 
 
 1 Arnot V. Biscoe, 1 Ves. S. 95, 97. 
 Hughes V. Garner, 2 Y. & C. Ex. 328, 
 335. Where the answer does not state 
 facts positively, or as within the defend- 
 ant's own knowledge, or does state them 
 inferentiiiliy merely, or only according 
 to the defendant's best knowledge and 
 belief, the rule requiring two witnesses, or 
 one witness with corroborating circum- 
 stances, to counteract its eff'ect, does not 
 apply. The only eff'ect of the answer in 
 such case is, to put the plaintiff' to the 
 necessity of proving the facts alleged in 
 his bill" Waters v. Creach, 4 Stew. & 
 P. 410; Hughes v. Garner, 2 Y. & C. 
 127; Knickerbacker v Harris, 1 Paige, 
 209; Stevens v. Post, 1 Bensley (N. J.), 
 408; Pe.'irce v. Nix, 34 .\la. 183; Wiitson 
 V. Palmer, 5 Ark. 501, 505. 506 ; Drurv v. 
 Conner, 6 Har. & J. 288; Phillips v. Rich- 
 ardson, 4 J. .1. Marsh. 213; Copeland w. 
 Crane, 9 Pick. 73. 78; Piirkman v. Welch, 
 19 Pick. 231; Norwood v. Norwood, 2 
 Harr. & J. 328; Pennington v. Gittings, 
 2 Gill & J. 208; Bellows iJ. Stone, 18 N. 
 H. 465; Hunt v. Rousmanier, 3 Mason, 
 294; Brown v. Brown, 10 Yerger, 84; 
 Combs ?). Buswell, 2 Dana, 474; Young 
 V. Hopkins, 6 Monroe, 22; Martin v. 
 Greene, 10 Missou. 652. The same is 
 true where the answer is evasive, or so ex- 
 pressed as not to amount to a positive 
 denial. Wilkins v. Woodfin, 5 Munf. 183; 
 M'(;ampbell t' Gill, 4 Monroe, 90; Sallee 
 V. Duncan. 7 .Monroe, 383; Hutchinson v. 
 Sinclair, 7 Monroe, 293; Neal v. Ogden, 5 
 Monroe, 362; Lyon v. Hunt, 11 Ala. 295; 
 Hartwell «. Whitman, 30 Ala. 712; Mar- 
 tin V. Greene, 10 Missou. 652. So where 
 the answer is merely formal to put in issue 
 the allegations of the bill. Reynolds v. 
 Pharr, 9 Ala. 560. The answer of a cor- 
 
 poration, being put in under its common 
 seal only, cannot be used as evidence, but 
 puts in issue the allegations to which it 
 responds, and imposes on the plaintiff the 
 burden of proving such allegations. Balti- 
 more & Ohio R. H. V. Wheeling, 13 Gnit- 
 tan (Va.), 40. Where an answer on oath 
 is waived, the answer is not evidence in 
 favor of the defendant for any purpose. 
 Patterson v. Gaines, 6 How. 'U. S. 550; 
 Larsh v. Brown, 3 Ind. 234; Moore v. 
 McClintock, 6 Ind. 209; Doon v. Bayer, 
 16 Md. 144; although in fact put in under 
 oath; Gerrish v. Towne, 3 Gray, 82; 
 Armstrong v. Scott, 3 Iowa, 433; Wilson 
 V. Holcomb, 13 Iowa, 110; Connelly v. 
 Carlin, ib. 383; but as a pleading, the 
 plaintiff may avail himself of the admis- 
 sions and allegations contained therein, 
 which establish the case mjide bv the bill. 
 Bartlett v. Gale, 4 Paige, 503;"Miller v. 
 Avery, 2 Barb. Ch. 582; 'Wilson w. Towle, 
 36 N. H. 129; Durfee v. McClurg, 6 Mich. 
 223; Smith v. Potter, 3 Wis. 432; see 
 also Union B:ink of Georgetown v. Gearj-, 
 5Peters, 99, 110-112; Story Eq. PI § 875a, 
 and note. It seems to be doubted by Mr. 
 Justice Story, whether the plaintiff" should 
 have the power to deprive the defendant 
 of the eff'ect of his answer by dispensing 
 with the oath, and at the same time use 
 the answer for the benefit ofjiisown case. 
 Story Eq. PI. § 875 a; see also as to the 
 effect of the answer of an infant, who is 
 not compellable to make answer under 
 oath, Bulkley v. V. Van Wyck, 5 Paige, 
 536. 
 2 See ante, p. 514. 
 8 Walton V. Hobbs, 2 Atk. 19. 
 ■* Pember V. Mathers, Walton v. Hobbs, 
 Hine v. Dodd, nbi supra, and Jiinson v. 
 Rany, 2 Atk. 140; see also Re Barr's 
 Trust, 4 K. & J. 219; Dunn v. Graham, 
 17 Ark. 60; 1 Greenl. Ev. § 260: 1 Phil. 
 Ev. (Cowen & Hill's ed.) 154, 155, and 
 notes referred to; Sturtevant v. Water- 
 bnrv, 1 Edw. Ch. 442; Columbia B;ink v. 
 BlMck, 2 M'Cord Ch. 344, 350; Smith 
 D.Shane, l' M'Lean, ;J7; iHurk v. Van 
 Reimsdyk, 9 Cranch, 160; Neilson v. 
 Uickinscjn, 1 Desaus. 163; Union Bank of 
 Georgetown v. Geary, 5 Peters, 99; Clark 
 V. Hunt, 3 ,T. J. Marsh. 560; Young v. 
 Hopkins, 6 Monroe, 22 ; Watson v. Stock- 
 ett, 6 Harr. & J. 435 ; Roberts v. Salisbury,
 
 ADMISSIONS. 847 
 
 performance of nn agreement, which the defendnnt denied by his C. XXll. § i. 
 
 answer, but the agreement was proved by one witness, and there ' y ' 
 
 was also evidence to prove the defendant's confession of it, besides 
 other corroborative circumstances, a decree was made.^ So, where 
 a defendant had denied notice of a previous mortgage, which, how- 
 ever, was proved by a single witness, and it was also proved, by 
 other evidence, that upon an application being made to the defend- 
 ant on behalf of the previous mortgagee for an account, he ob- 
 served : " You have no right, for your mortgage is not registered," 
 Lord Redesdale held, that the testimony of the witness, who 
 proved the notice directly, was confirmed by that observation, 
 which showed that the defendant had investigated the subject, 
 and relied on the neglect to register the mortgage.^ 
 
 Upon the same principle, where a parol agreement, with part- as where 
 performance, is insisted upon in a bill, and the agreement is denied performance 
 by the answer, yet, if it is proved by one witness, and supported of a parol 
 by circumstances of part-performance, such as delivery of posses- 
 sion, the specific performance of the agreement has been decreed.^ 
 In such cases, however, if the defendant, by his answer, denies the 
 agreement set up by the bill, and his denial is confirmed by cir- 
 cumstances, the Court will not decree a specific perfoi*mance, 
 although the case made by the bill is corroborated by one wit- 
 ness.^ And where a particular agreement by parol, namely, an 
 agreement to grant a lease for three lives, was stated in the bill, 
 and proved by one witness, and confirmed by acts of part-per- 
 formance, but the answer admitted an agreement for one life only, 
 and was supported by the testimony of one witness, the Court 
 refused to decree for the plaintift': the evidence of part-perform- 
 ance being equally applicable to either agreement.^ 
 
 Sometimes, the Court gave the defendant an opportunity of try- issue, 
 ing the case at Law, when the plaintifr s case was supported by fo"""^y> 
 
 directed ; 
 
 3 Gill & J. 425 ; McNeil v. Magee, 5 Mason, edge. Long v. White, 5 J. J. Marsh. 238; 
 
 244; I'ierson v. Catlin, 3 Vt. 272; Dunhnni Robinson v. Stewart, 10 N. Y. 189; Robin- 
 
 ». Jackson, 6 Wend. 72; Turner v. llol- son o. Hardin, 26 Geo. 344; Roberts «. 
 
 man, 6 Monroe, 410; Hutchin.son v. Siii- Kellv, 2 1'. & H.390; see also Sturtevant 
 
 clair, 7 Monroe, 294; Drurv i'. Connor, 6 v. \Vaterburv, 1 Ed. 442; Brown «. Brown, 
 
 IIarr.&.J.288; \ViIkinsr.Woodlln,5Muiif. 10 Yerger, 8"4; Dunham v. Gates, 1 Hoff. 
 
 183; Love I'. Braxton, 5 Call, 527; Vance Ch. 188; Cunningham v. Freeborn, 3 
 
 r. Vance, 5 Monroe, 523; CunriiuL'ham w. I'aige, 564; S. C. on appeal, 11 Wend. 
 
 Freeborn, 3 Paige. 557; Estep u. \Vatkins, 251; Gould «;. Williamson, 21 Maine, 270 ; 
 
 1 Bland, 488. The answer that denies, Presclibaker v. Fieeniun, 32 111. 475. 
 
 may contain the circumstances to corrobor- l Only «. Walker, 3 Afk. 407, 408. 
 
 ate the pl.iintifTs proof, so as to overcome 2 Biddulph t). St. John, 2 Sch. & Lef. 
 
 itself, when taken in connection with tliMt 532. 
 
 proof. Pierson f. Catlin, 3 Vt. 'J72; Maury 8 Morphett v. Jones, 1 Swanst. 172, 
 
 V. Lewis, 10 Yerger, 115; Savre r. Fn-d'- 182. 
 
 ericks. 1 C. K. Green (N. J.'), 205. Cir- ■« Pilling v. Armitage, 12 Yes. 78,79; 
 
 cumstances nlone, in the iihsence of a Money v. Jordan, 2 l)e G., M. & G. 318; 
 
 [(O.sitive wi'nesH, may be sudicieut toover- S. C. 7*oni. Jordan «. Money, 5 IL L. Ca. 
 
 come the denial of the answer, even of a 185. 
 
 person who answers on his own knowl- * Lindsay v. Lynch, 2 Sell. & Lef. 1, 7.
 
 848 
 
 EVIDENCE. 
 
 C. XXll. § 1. 
 
 Question now 
 of rare 
 occurrence. 
 
 II. Admis- 
 sions by 
 agreement : 
 
 Should be 
 clear and 
 distinct. 
 
 Are generally 
 in writing, 
 and signed 
 by the par- 
 ties, or their 
 solicitors; 
 whether 
 necessarily 
 in writing, 
 qucere. 
 
 tlio ovidonoo of only oiu' witiirss and covroboratinff cirounistnnccs;^ 
 ami sonu'times the Court diroctiMl llio answer of the deteiidant to 
 be read as evideuee.'- As the i)ra('tice of direetintij an issue, in a 
 ease of this descri]»tion, was intended solely for the satisfaction of 
 the defendant, it was by no means compulsory upon tlie defendant 
 to take one; and if the defendant declined an issue, the Court 
 itself was bound to ijive judgment upon the question Avhether the 
 circumstances outweigluMl the eflect of the rule, so as to authorize 
 a decree against the denial in the answer. 
 
 It must be remembered, that the parties to a cause can now be 
 witnesses on their own behalf;' so that such questions as we 
 liave just been considering, are of very rare occurrence, in modern 
 practice. 
 
 II. Admissions by agreement between the parties are those 
 which, for the sake of saving expense or preventing delay, the 
 jiarties, or their solicitors, agree upon between themselves.^ 
 
 With resjiect to admissions of this description, as they must de- 
 pend entirely upon the circumstances of each case, little can now 
 be said respecting them beyond drawing to the practitioner's notice 
 the necessity there exists that they should be clear and distinct. In 
 general, they ought to be in writing and signed either l)y the par- 
 ties or their solicitors ; and the signature of the solicitor employed 
 by the party is considered sufficient to lijnd his principal ; the 
 Court inferring that he had authority for ttiat purpose.^ It does 
 not, however, appear to be necessary that an agreement to admit 
 a particular fact should be in writing ; and where, at Law, the 
 plaintiff's attorney swore that he had proposed that the defendant 
 should acknowledge a waiTant of attorney, so as to enable the de- 
 ponent, if it should become necessary, to enter up judgment 
 thereon, and that the defendant had accepted his ofter, it was con- 
 sidered well proved that the defendant had agreed to acknowledge 
 
 1 East India Company ». Donald, 9 Ves. 
 275, 283, 284 ; Ibbottson ». Rhodes, 1 Eq. 
 Ca. Ab. 229, pi. 13; 2 Vern. 554; Pember 
 V. Mathers, 1 Bro. C. C. 52; Savage v- 
 Brocksopp, 18 Ves. 335-337; post, " Trial 
 of Questions of Fact ; " Lancaster v. Ward, 
 Overton, 430; Smith v. Betty, 11 Gratt. 
 Va. 752. 
 
 2 Ibbottson V. Rhodes, ubi sup. The 
 an'^wer cannot be read unless an order is 
 made to that efteot. Ulack v. Lamb, 
 1 Heasley{N. .1.), 108; Gresley Kq. Ev. 
 227; see'Kule 33 of the Rules of Practice 
 in Chancery in Massachusetts; Gamble 
 V. Johnson, 9 Missou. 605; Kinsey v. 
 Grimes, 7 Blackf 290. In Marston v. 
 Brackett, 9 N. II. 350, the Court re- 
 niarkeil that "the manner of proceeding 
 to the trial of issues from Chancery is 
 under the control of the Court. Orders 
 may be made respecting the admission of 
 
 testimony, and an order may be made for 
 the examination of one or both of the 
 parties ; but this may be refused. If the 
 party, after the evidence has been taken 
 for the hearing, moves for a trial by the 
 Jury, we are of opinion the case should be 
 tried there upon the same evidence upon 
 which It would have been tried had it taken 
 the usual course of cases in Chnncery, and 
 been examined by the Court; unless the 
 Court, upon cause shown, make an order 
 perniittins further evidence to be intro- 
 duced. Any other course would lead to 
 great abuse," &c; see post, Trials of 
 Questions of Fact. 
 
 3 See 14 & 15 Vic. c. 99, § 2. 
 
 * Greslev Kq. Ev. (Am. ed.) 38 et seq. 
 
 6 Young" V. Wright, 1 Camp. N. P. 139; 
 Gainsford v. Gammer, 2 id. 9; Laing v. 
 Kaine, 2 Bos. & P. 85. For form of ad- 
 mission, see Vol. III.
 
 ONUS PROBAXDI. 
 
 849 
 
 the instrument for all purposes, and that the plaintiff was at liberty 
 to act upon the instrument Avithout the necessity of producin"- the 
 subscribing witness.-^ 
 
 It is to be remarked, that although the Courts are disposed to 
 give every encouragement to the practice of parties or their solici- 
 tors agreeing upon admissions among themselves, they "v\411 not 
 sanction an agreement for an admission by Avhich any of the known 
 princijiles of Law are evaded ; and, therefore, where a husband 
 was willing that his Avife should be examined as a witness, in an 
 action against him for a maHcious prosecution. Lord Hardwicke 
 refiised to allow her examination : because it was against the policy 
 of the law to allow a woman to be a Avitness, either for or against 
 her hiisband.2 L'pon the same principle, AA'here the law requires 
 an instrument to be stamped, the Court A\'ill not give efiect to an 
 agreement between the solicitors to waive the objection arising 
 fi'om its not being stamped.^ 
 
 To save exjDense, it has been recently enacted, that where all 
 the parties to a suit are competent to make admissions, any party 
 may cull on any other, by notice, to admit any document, saving 
 all just exceptions.* 
 
 All written admissions of evidence, Avhereon any order is founded, 
 must be indorsed by the Registrai-,^ and be then filed at the Re- 
 port Office,® and a note thereof made on the order, by the Clerk of 
 Reports." 
 
 C. XXII. § 2. 
 
 Must not be 
 contrary to 
 policy of the 
 law ; 
 
 therefore 
 agreement 
 to waive 
 objection for 
 want of a 
 stamp, is 
 void. 
 
 Admissions, 
 under 21 & -22 
 Vic. c. 27. 
 
 Identity and 
 preser\-ation 
 of written 
 admissions. 
 
 Section II. — The Onus Prohancli. 
 
 Having ascertained what matters are to be considered as admitted 
 between the parties, either by the pleadings or by agreement, the 
 next step is to consider Avhat proofs are to be adduced in suj)port 
 of those points Avhich are not so admitted.^ 
 
 In considering the question of: what matters are to be jn-oved Onm 
 in a cause, the first point to be ascertained is, upon Avhom the bur- i^'"'^*""''* • 
 den of the proof lies V And here it may be laid duAvn, as a gen- ^csts, in gen 
 
 eral upon the 
 6 Reg. Regul. 16 Murch, 1860, r. 23. party assert- 
 
 1 Marshall r. Cliff, 4 Camp. N. P. 133; 
 but it may be doubted whedier it is not 
 necessHry, in Chancery, thiit sill adiiii.s- 
 siousshuuld be iu writing, see Ord III. 11. 
 
 '•^ Barker r. liixie, Kep. t. ManJwicke, 
 2C4. As to ttie present law, with reg;^rd 
 to husband anil wife givirjg evidence Ibror 
 against each other, see 10 & 17 Vic. c. b3. 
 
 8 Owen V. Thomas, 3 M. & K. 353, 
 357; see, however, Oningc v. I'ickford, 
 anil Tliompson v. AN'elister, cited fSeton, 
 10; see a.Uo inst, p. 8S0, and Cha)). XXV. 
 Ucwin;/ Cnuifg. 
 
 * 21 '& 22 Vic. c. 27, § 7; see pml, p. 
 879. 
 
 For form of entering admissions, see Se- mg the 
 to", 24. allinnative. 
 
 « Urd. I. 44. 
 
 7 Ord. XX III. 2.3. 
 
 ** 'I'hernle-i of evidence are the s;mie in 
 Courts of K(|uit3- jis in Courts ot \m\/, 
 Morrison f. Hart, 2 IJibb, 5; i^enmsler v. 
 Hurckhart, 2 Bibb, 28; Dwiglit v. I'ome- 
 roy, 17 Mass. 3U3; Keed i'. Clark, 4 Mon- 
 roe, 20; Stevens u. Cooper, 1 .loim. Ch. 
 425; ISaugh r. llamsey, 4 Monroe, 137; 
 Kveleih c. W'il-on, 15 Xlass. lU'J. 
 
 64
 
 850 
 
 EVIDENCE. 
 
 C. XXII. 5 2. 
 
 Where a, 
 prima facie 
 case is made, 
 onus probancH 
 is upon the 
 opposite 
 party ; 
 as a person 
 disputing a 
 deed or 
 instrument. 
 
 ('r:il pr(>i)osition, tliat tlu' jioint in issue is to be proved by tlio 
 p.uty who iissorts the atlinuutivo, acronlino" to tlie maxim of the 
 Civil Law : " £Ji incumbit probaUo qui dicit, non qui negate ^ 
 This rule is common, as well to Courts of E(iuity as to Courts of 
 Law : anil aoeonlingly, when a defendant insists upon a purchase 
 for a valuable consideration, without notice, the fact of the defend- 
 ant, or those untler whom ho claims, having had notice of the 
 l)laintiff's title, must be proved by the plaintiff.'^ So where a, feme 
 covert, having a sejiarate property, had joined with her husband in 
 a security for money which it was the object of the bill to recover 
 from her (her husband being dead), and the defendant, by her 
 answer, admitted that she had signed the security, but alleged that 
 she had done so, not of her own free-will, but under the influence 
 of her husband, Sir John Leach M. R. held, that it lay uj)on the 
 wife to repel the efiect of her signature, by evidence of undue influ- 
 ence, and not upon the plaintiff' to prove a negative.'* 
 
 In general, it may be taken for granted, that wherever a prima 
 facie right is proved, or admitted by the pleadings, the onus pro- 
 handi is always upon the person calling such right in question.* 
 And here it may be observed, that a Court will always treat a 
 deed or instrument as being the thing which it purports to be, 
 unless the contrary is shoAvn ; and, therefore, it is incumbent upon 
 the party impeachbig it, to show that the deed or instrument in 
 question is not what it purports to be ; thus, where a bond, which 
 was upon the face of it a simple money bond, Avas im])eached as 
 being intended merely as an indemnity bond, it was held, that the 
 burden of proving it to be an indemnity bond, lay on the party 
 
 1 On this subject, see the following 
 works on evidence: 1 Phillips, 552; Tay- 
 lor, § 337 H seq. ; Best, § 271; Gresley, 
 38b; Starkie, 58G; I'oweil, ISO. This is 
 a rule ot convenience, adopted, not be- 
 cause it is impossible to prove a negative, 
 but because a ni-gative does not admit of 
 the liircct and simple proof of which the 
 atfirma'ive is capable. 1 Greenl. Ev. §74; 
 Draiiquet v. I^rudtiomme, 3 La. 83, 86; 
 see 1 Stark. Ev. (5th Am. ed.) 362-865; 
 1 Phil. Ev. 194-200; 2 Phil. Ev. (Cowen 
 & Hill's notes, ed. 1839) 475 et seq.; 
 Phelps V. Hai'twell, 1 Mass. 71; Blaney v. 
 Sargeaui, 1 Mass. 335; Loringw. Steinman, 
 1 .Met. 204, 211; Phillips ». Ford, 9 Pick. 
 39. Regard is to be had in this matter to 
 the substance of the issue rather than to 
 the form of it; for in many ca=es the parly, 
 by inakmg a sliglit change in his pleading, 
 may give the issue a negative or atiirnia- 
 tive form, at his pleasure. 1 (irecnl. Ev. 
 § 74. To this general rule, that tlie bur- 
 den of pi^oof is on the party holaiiig the 
 alfirmative, there are some exct-ptiims. 
 1 Greenl. Ev. § 78. One class ot these 
 exceptions will be found to include those 
 
 cases in which the party groundsills right 
 of action upon a iiegati\c allegation, and 
 whereof course the establishment, of this 
 negative is an essential element of his 
 case. 1 Greenl. Ev. § 78; Lane v. Crom- 
 bie, 12 Pick. 177 ; Kerr v. Freeman, 33 
 Miss. (4 George) 292. So where the neg- 
 ative allegation involves a charge of crim- 
 inal neglect of dutv, whether otKcial or 
 otherwise; or fraud; or the wrongful vio- 
 lation of actual lawful possession of prop- 
 erty, the party making the allegation must 
 prove it. 1 Greeid. Ev. § 80. I'liere is 
 no difference in respect to the burden of 
 proof, between proceedings at Law and 
 in Equity; in both the party maintaining 
 the aflirmative of the issue has it c;ist 
 upon him. Pusey v. Wright, 31 Peiui. 
 St. 387. A party in Equity, [deading 
 matter in avoidance, takes upon himself 
 the burden of proof of the matter so 
 pleaded. Peck v. Hunter, 7 Ind. 295. 
 
 ^ Eyre v. Dolphin, 2 Ball & B 303; 
 Saunders v. Leslie, ib. 515; aiile, p. 098. 
 
 3 Field V. Sowle, 4 Russ. 112. 
 
 4 Banbury Peerage, IS. & S. 153, 155.
 
 OXDS PROBAXDI. 
 
 851 
 
 impeaching it.'^ So, if a party claims two legacies under two difFer- 
 ent instruments, the burden of showing that he is only entitled 
 to one, will lie upon the person attempting to make out that prop- 
 osition : for the Court will assume that the testator having given 
 the two legacies by different documents, meant to do so, till the 
 contrary is established.- 
 
 Indeed, in all cases where the presumption of Law is in favor of 
 a party, it will be incumbent on the other joarty to disprove it : 
 though in so doing he may have to prove a negative,^ therefore, 
 where the question turns on the legitimacy of a child, if a legal mar- 
 riage is proved, the legitimacy is presumed, and the party assert- 
 ing the illegitimacy ought to prove it* for the presumption of Law 
 is, that a child born of a manied woman whose husband is within 
 the four seas, is legitimate, unless there is irresistible evidence 
 against the possibility of sexual intercourse having taken place.^ 
 
 It is important, in this place, to notice, that in cases where it is 
 sought to impeach a will, or other instrument, on the ground of 
 insanity, the rule as to the onus/prohandi is : that " where a party 
 has ever been subject to a commission, or to any restraint permit- 
 ted by Law, even a domestic restraint, clearly and plainly imposed 
 upon him in consequence of undisputed insanity, the proof, show- 
 ing sanity, is thrown upon him." On the other hand, where in- 
 sanity has not been imputed by relations or friends,. or even by 
 common fame, the proof of insanity, which does not appear to have 
 ever existed, is thrown upon the other side : ' which is not to be 
 
 C. xxn. § 2. 
 
 Where pre- 
 sumption of 
 Law is in 
 favor of one 
 party, 
 burden of 
 proof must be 
 upon the 
 other. 
 
 Where an 
 instrument is 
 impeached for 
 insanity, &c. ; 
 
 1 Nicol u. Vauglian, 6 Bligh X. K 104; 
 1 CI. & F. 4y. 
 
 ■- l.ee V. Pain, 4 Hare, 216; liooley v. 
 Hatton, -l Dicii 461. Where two legacies 
 are given to tlie same K'gatee, by lliesume 
 instrument, the presumption is the other 
 way. lb. 46".i. 
 
 *> Whenever there is a presumption that 
 a fact exists, he who m;iices an allegation to 
 tlio contrary must prove it. Higdon v. 
 liigilon, 6 J. J. Marsh. 51. Deeds aro 
 pre-iumed to be delivered on tlie day of 
 tlieir date. An all'-gation of another day 
 must be proved. Ihid 
 
 < 1 Phil, on Evid. 197; 1 Gree.d Kv. 
 § Bl. So where infancy is alleged. Ibid. 
 So in case a party once proved to be living 
 is alleged to be dead, the presumption of 
 life not yet being worn out by lapse of 
 time; thehiirden of pro)f is on the party 
 making the allegation, notwithstanding its 
 negative character. Ih'uL 
 
 6 Head V. Mea<l, 1 S. .So .S. 150; T. & R. 
 13«; set- al-o liury v. I'liibp 't, 2 M. & K. 
 34'J, <I.J2; Margrave f. llargrave, D IJeav. 
 hhL\ 1(1 .J ur. 1>.J7 ; I'lowes «. liosscy, 2 Dr. 
 &S. 145; h.Iur. N.S. a52, V. CK. ; Atch- 
 ley n. Sprigu, 10 .Jur. M. S. 144, V. C. K. 
 As 10 olIuT iiistai.ces of pre-tumplions of 
 law, see the following works on evidence: 
 
 1 liiillips, 467 lit seq. ; Taylor, § 61 ct 
 seq. ; Best, § 305 et seq.; Gresley, 473; 
 Powell, 47. 
 
 •J Where one is under guardianship as 
 non compos, the presumption is that he is 
 incapat)le of making a will. Breed v. 
 Pratt, IS Pick. 115. Vet this dues not 
 prevent his making a will it his mind is 
 actually sound. Ibid; Stone y. Damon, 12 
 Mass. 4feb; 2 Grceul. Ev. § OUO; Crowii- 
 ingshield v. Crowningshield, 2 Gray, 531; 
 sea StB" arc iJ. Lispeuard, 26 Wend. 255. 
 The commission oi suicide bj' the testator 
 is not conclusive evidence of insanity. 
 Brooks v. Bairett, 7 Pick. 94; DuiUeld v. 
 Kobcfon, 2 liarring. 583; see 2 Greenl. 
 Ev. §§ 089, 690. 
 
 7 See 2 Greenl. Ev. §§ 689, 090; I'helps 
 V. llartwell, 1 Mass. 71; Hubbard r. Hub- 
 bard, 6 .Mass. 397 ; Breed v. Piatt, IS Pick. 
 115; Kogers v. 1 homas, 1 B. Monroe, 
 394; .Morse i'. Slasun, 13 Vt. 296; Jackson 
 V. King, 4 Cowen, 207; Stevens i\ Van 
 t;ieve,4 Wash. V,. G- 262; Uuiton v. Scott, 
 3 Rand. 39y; Jackson v. Van Duseii, 6 
 John. 144; Mo-e v. lisher, 1 I'eteis G. C. 
 163; I'ettesy. Bmgliain, 10 N. ll.514;Ger- 
 rish V. Mason, 22 Maine, 438; Brooks y. 
 Barrett, 7 I'ick. 94, 99; Gommonwuulih 
 V. Eddy, 7 Gray, 583; Haxter f. Abbott,
 
 852 
 
 EVIDENCE. 
 
 C. XXII. § 3. nuulo out \>y rambling tlirouoh (lie whole life of the ]>arty, but must 
 be apjilieil to tlie jiarlii-ular tlato of the transaction.^ 
 
 It has also been lu'lil, that where general lunacy has been estab- 
 lisheil, and a party insists uj)on an act done during a lucid interval, 
 the ] roof is thrown ujion the i>arty alleging the lucid interval ; and 
 that, in order to establish such an interval, he must prove not 
 merely a cessation of violent symptoms, but a restoration of mind 
 to the i>arty, sutticient to enable him to judge somidly of tlie act.^ 
 
 It may also be stated, generally, that whenever a person obtains 
 by voluntary donation a benefit from another, the onus j>robcmdi is 
 u])on the former, if the transaction be questioned, to prove that the 
 transaction was righteous,^ and that the donor voluntarily and de- 
 liberately did the act, knowing its nature and eiFect. Moreover, 
 where the relation of the jiarties is such that nndue influence might 
 have been used, the onus jyrohandi, to show that such influence was 
 not exerted, is upon the jjcrson receiving the benefit.* 
 
 ■where a lucid 
 iiiten-al is 
 alleged. 
 
 Where a 
 voliiiitan' 
 donation is 
 impeached. 
 
 Facts, not 
 noticed in 
 pleading;?, 
 cannot be 
 proved ; 
 
 Section III. — Confined to Matters in Issue. 
 
 It is a fundamental maxim, both in this Court and in Courts of 
 
 *^® Law, that no proof can be admitted of any matter which is not 
 
 noticed in the pleadings.^ This maxim has been adopted, in 
 
 7 Gray, 71. Under the statutes of Massa- 
 chusetts, it has been held that the burden 
 of proving the sanity of the testator is 
 upon liim who offers the will for probate. 
 Crowningshield V. Crowiiingshield, 2 Gray, 
 524; see Comstock v. Hndlyine, 8 Conn. 
 261. But in the absence of evidence to 
 the contrary, the legal presumption is in 
 favor of the sanity ot the testator. Baxter v. 
 A!)bott, 7 Gray,' 71 ; see the notes on this 
 subject of presunip'ion of saiiit}' on proof 
 ot wills in 1 Jarnian W'ills (4th Am. ed.), 
 75-81. If it is alleged that the testator had 
 no knowledge of the contents of the will he 
 has executed, or that he was induced to 
 execute it by misrepresentation, the bur- 
 den of proof is on those who object to the 
 will. Pettes V. Bingham, 10 N. H. 514. 
 
 1 Whiter. "Wilson, 13 Ves. 87, 88; and 
 see the Attorney-General lu Parnther, 3 
 Bro. C. C. 441, 443; Jacobs v. Eichiirds, 
 18 Beav. 300; 18 Jur. 527. 
 
 2 Hall V. Warren, 9 Ves. 605, 611; 
 Clark V. I'isher, 1 Paige, 171; Halley v. 
 Webstir, 21 Maine, 461; B^.yd i). Eby, 8 
 Watts, 66; .Jackson v. Van Dusen, 5 .lohn. 
 144, 159; 2 Greenl. Ev. § 689; Goble v 
 Grant, 2 Green Ch. 629; Whitenach v. 
 Stryker, 1 Green Ch. 8; Duflield r. Kobe- 
 son, 2 HHrring. 375; Harden v. Hays, 
 9 Barr, 151; 1 .larman Wills (4th Am. 
 ed. ), 67 etseq., and notes; Jencks v. Pro 
 bate Court 2. R. I. 255. The rule does 
 not apply to a case of insanity caused by 
 
 violent disense. Hix v. Whittemore, 4 
 Met. 545; Townshend V- Townsheud, 7 
 Gill, 10. 
 
 !* Cooke V. Lamotte, 15 Beav. 234. 
 
 4 Hoghton V. Iloghton, ib. 278; Not- 
 tidge V. Prince, 2 Gitf. 246; 6 Jur. N. S. 
 1066; Walker t;. Smith, 29 Beav. 394. 
 
 6 Whaley ». Norton. 1 Vern. 484; Gor- 
 don ». Gordon, 3 Swanst. 472; Clarke v. 
 Turton, 11 Ves. 240; Williams v. Llewel- 
 lyn, 2 Y. & J. 68; Hidl V. Maltby, 6 
 Pri. 240, 259 ; Powys v. Mansfield, 6 Sim. 
 565; see Story Kq. PI. §§ 28, 257; 
 Langdon i>. Goddard, 2 Story, 267; James 
 t'. M'Keinon, 6 John. 543; Lyon v Tall- 
 maclge, 14 John. 501; 1 Phil. Ev. (Coweu 
 & Ildl's ed. 1839) 169 et seq. and notes, 2 
 ib. (Cowen & Hill's notes) 429 et seq. and 
 cases cited; 1 Greenl. Ev. § 51 et seq. ; 
 Greslev, Eq. Ev. 159 et seq.; Barque Chu- 
 san, 2 Story, 456; Barrett v. Sargeatit, 18 
 Vt 365; Pinson v. Williams, 23 Miss. (1 
 Cush.) 64; Kidd v. Manley, 28 Miss. (C 
 Cush.)156; Surget V. Byers, 1 Hemp. 715 ; 
 Craigev. Craige, 6 Ired. Eq. 191; Moores 
 V. Moores, 1 C. E. Green (N. J.), 276; 
 Chandlers. Herrick, 3 Stockt (N. J.)497; 
 Burnliam v. Dulling, 3 C. E. Green (N. 
 J.), 134. Proofs taken in a cause mu.'^t be 
 pertinent to the issue in that cause, secun- 
 dum alley a la. Underbill t'. Van Cortlandt, 
 2 John. Ch. 339; Parsons v. Heston, 3 
 Stockt. (N. J.) 165. Evidence relative to 
 matters not stated in the pleadings, nor
 
 CONFIXED TO MATTERS TX ISSUE. 
 
 853 
 
 order to obAinte the gre:^.t inconTeiiience to -vrhicli parties would 
 be exposed, if they were liable to be affected by evidence at the 
 hearing, of the intention to produce which they had received no 
 notice. In a former part of this Treatise, the operation of this 
 rule, in requiring the introduction into a bill of every fict which 
 the plaintiff intends to prove, has been pointed out.^ It has also 
 been shown, that the same rule applies to answers, and that a 
 defendant who has put in an answer, cannot in strictness avail 
 himself of any matter in his defence which is not stated in his 
 answer, although it appears in his evidence.^ In certain cases, 
 however, cAndence of particular facts may be given under general 
 aUegations, and, in such cases, therefore, it is not necessary that 
 the particular tacts intended to be proA'ed should be stated in the 
 pleadings.^ The cases in which this exception to the general rule 
 is principally applicable, are those where the character of an indi- 
 vidual, or his general behavior, or quality of mind comes in ques- 
 tion : as where, for example, it is alleged that a man is non com- 
 pos, particular acts of madness may be given in evidence, and not 
 general evidence only that he is insane* So, also, where it is 
 alleged that a man is addicted to drinking, and liable to be imposed 
 upon, the evidence should be confined to his being a drunkard, 
 but particular instances may be given.^ In like manner, where 
 the charge in a bill was, that the defendant was a lewd Avoman, 
 evidence of particular acts of incontinence was allowed to be read.® 
 In cases of this nature, however, it is necessary, in order to enti- 
 tle the party to read eA^idence of particular facts, that they should 
 point directly to the charge ; and therefore, it has been held, that 
 an allegation in a bill, that a wife had misbehaved herself, did not 
 imply that she Avas an adulteress, and that a deposition to j^i'ove 
 her one ought not to be read.' And so, the mere saying that a 
 wife did not behave herself as a virtuous Avoman, Avill not entitle 
 her husband to proA'C that she has committed adultery, unless there 
 is an express charge of tlie kind : ^ for the virtue of a Avoman does 
 not consist merely in her chastity.^ 
 
 The question, how far particular acts of misconduct can be given 
 
 C. XXII. § 3. 
 
 exceptions: 
 
 where charac- 
 ter, behavior, 
 or quality of 
 mind is in 
 question ; 
 as, insanity; 
 
 or a habit of 
 drinking ; 
 
 or lewdness ; 
 
 but special 
 facts must be 
 pointed to 
 the general 
 charge. 
 
 fairly within their general allegations, is 
 impertinent, and cannot be inaile the 
 foundiition of a decree. Vansciver v. 
 Bryan. 2 Beaslev (N. J), 434; an'l see 
 the following works on evidence: Taylor, 
 § 239 et seq. ; Best, § 253 ttsi-q. ; Greslev, 
 230; Powel,220. 
 
 1 Ante, p. 320. 
 
 2 Ante, |). 711; Smith v. Clarke, 12 Ves. 
 477, 4«0. From the case of the London 
 and BirminKliam liailway (^"ompaiiy v. 
 Winter, C. iV 1'. ',7, '12, it neeins, tliat a 
 fact l)rou;.'lit tn the attention of the Court 
 by the evidence, but not stated upon the 
 answer, will, under some circumstances, 
 
 jifford a ground for inquiry, before a final 
 decree. 
 
 3 Moores v. Moore";, 1 C. K. Green (N. 
 J.). 27.5; Hewett v. Adams, 50 Jlaine, 271, 
 276; Greslev Kq. Kv. (Am. ed.) 101 etseq. ; 
 St- TV Kq. I'l. §§ 28,2.52. 
 
 * Clarke v. Pcriam, 2 Atk. 333, 340. 
 
 6 JfAd. 
 
 8 Chirke v. Periam, ubi sup., and the 
 cases there cited. 
 
 7 J/jiil. ; Sidney v. Sidnev, 3 P. Wm't. 
 209, 270; 1 (;. P.' Coop. t. ('ott. 511. n. 
 
 •* Lord Donerail v. La'ly Doneruil, cited 
 2 Atk. 338. 
 
 9 I'er Lord Ilardwicke, in 2 Atk. 339. 
 
 When mis- 
 behavior in 
 otHce is 
 charged.
 
 80-i EVIDENCE. 
 
 ('. XXII. § ;>. ill c'\ idt'iu'o uiulor a general ehargc of inisbelKivior, a|)])ears to have 
 " >^ ' liecn much iliscusseil before Lord Talbot, in Wheeler \. Trotter:^ 
 ■\vhieli was the case of a bill filed for the sjHH-ific ]>erforniance of an 
 agreement to grant a de)>utation of the oiliee of Registrar of the 
 Consistory Conrt ; and, amongst other defences set up by the 
 defendant's answer, it was alleged that the plaintiff was not en- 
 titled to tlie assistance of the Court because he had not accounted 
 for divers fees which he had received under a deputation author- 
 izing liim to execute the office, and had taken several fees which 
 were not due, and concealed several instruments and writings 
 belonging to the office. Upon the defendant's attempting to read 
 proofs as to the misbehavior alleged in such general terms by his 
 answer, it Avas objected, on the ])art of the ])laintiff, that the 
 charges were too general, as the plaintiff could not tell what proof 
 to make against them, unless he examined every particular fee he 
 had received, and also every instrument that had come to his 
 hands ; and that the defendant shoidd have pointed out the jiar- 
 ticular facts in his answer, so that the plaintiff might be enabled, 
 to know how to clear himself by his proof; and the case was 
 assimilated to that of an action at Commou Law for a breach of 
 covenant to repair, where, if the defendant pleads that he left the 
 premises in repair, the plaintiff must, in his re})lication, show 
 particularly what part is out of repair ; and to an indictment for 
 baiTatry, which may be general, yet the prosecutor is always 
 obliged to give the defendant a list, upon oath, of the particular 
 matters that are intended to be 2:)roved : but the Lord Chancellor 
 held, that although the matters intended to be proved might have 
 been more precisely put in issue, by enumerating the particular 
 facts, yet, as they were not intended to charge the plaintiff with 
 any particular sums received more than were accounted for, but to 
 show a general misbehavior of the plaintiff in his office, so that a 
 Court of Equity should not help him, he thought that, for this 
 purpose, they were sufficiently put in issue. 
 Where notice The cases in which evidence of particular facts may be given 
 is charged, under a general allegation or charge, are not confined to cases in 
 which the character, or quality of mind, or general behavior of a 
 party comes in issue. The same thing may be done, where the 
 question of notice is raised in the pleadings by a general allega- 
 tion or charge. Thus, where the defence was a purchase for a 
 valuable consideration, without notice of a particular deed, but, in 
 order to meet that case by anticipation, the bill had suggested 
 that the defendant pretended that she was a purchaser for a valu- 
 able consideration, without notice, and simply charged the con- 
 
 1 3 Swanst. 174, n.
 
 CONFINED TO MATTERS IN ISSUE. 
 
 855 
 
 trary : the deposition of a witness, who 2:)i'0ved a conversation to 
 have taken place between himself and a third jjerson, who Avas 
 the solicitor of the defendant, and the consequent production of 
 the deed, was allowed to be read as evidence of notice.^ In such 
 a case, the question whether the party has notice or not, is a foct, 
 which should be put in issue, but the mode in which it is to be 
 proved need not be put upon the record: for the rule that no 
 evidence will be admitted, in support of any facts but those which 
 are mentioned in the pleadings, requires that the facts only in- 
 tended to be j^roved should be put in issue, and not the materials 
 of which the j^roof of those facts is to consist.^ Thus, in a case of 
 pedigree, if Robert Stiles is alleged to be the son of John Stiles, 
 that fiict may be proved in any mode which the rules of e\ddence 
 will allow, and it is not necessary to state that mode upon the record. 
 
 It is upon this principle that documentary evidence, or letters 
 themselves, are not specifically put in issue.^ Indeed, a party may 
 prove his case by written or parol evidence, indifferently, and 
 is under no more restrictions in one case than in another. It is 
 not necessary to put every written document in issue;* thus, 
 where a bill charges an agreement for the purpose of establishing 
 a lien, the general rule has been laid down that whatever would 
 be evidence of the agreement at Law is evidence in Equity ; sub- 
 ject to this : that if one party should keep back evidence which 
 the other might explain, and thereby take him by surprise, the 
 Court will give no effect to such evidence, without first giving the 
 party to be affected by it an opportunity of controverting it.^ 
 
 Although letters and writings in the hands of a party may be 
 proved and used as evidence of facts, yet, if they are intended to 
 be used as admissions or confessions of facts by the opposite party, 
 they ought to be mentioned in the pleadings,® in order that the 
 party against whom they are intended to be read, may have an 
 opportunity to meet them by evidence or explanation.'^ In 
 M'Mahon v. Burchell,^ however. Lord Cottenham allowed certain 
 letters to be used as evidence of admissions, though not men- 
 tioned in the pleadings: observing, that "he isould not go the 
 length of saying that evidence of an admission was not admissible, 
 merely because it was not jtut in issue." 
 
 This principle is not confined to writings, but applies to every 
 
 1 Huglies V Garner, 2 Y. & C Ex. 328, 
 335. 
 
 '^ Filacker v. Phepoe, 1 M'lU. 354; see 
 Storv i:q. I'l. §§ 2b, 252, 263, 265, a. 
 
 3 'Ibid 
 
 * I'f-r Sir Anthony Ilnrt, in Fitzsenild 
 V. (rKiiili.;rty, 1 Mi>n. 350; see al^-o Lord 
 Cranstown v. Johnston, 3 Ves. 170, 176; 
 Dey V. Dunham, 2 John. Ch. 188; I'ardce 
 
 V. DeCola, 7 Paige, 132; Kellogg v. Wood, 
 6 Paige, 578. 
 
 6 Malcolm v. Scott, 3 Hare, 63; S. C. 
 nom. Scott v. Miilcolin, 8 .Inr. 1059. 
 
 " Iloulditch V. Marquis oC Uoi.egal, 1 
 Moll. 364; Whitley r. Martin, 3 IJeav. 226. 
 
 ■7 Ulacker v. Phepoe, ubi sup. 
 
 « 2 Phil. 127, 133; 1 C. P. Coop. t. Cott. 
 475. 
 
 C. XXII. § 3. 
 
 the fact only 
 should be put 
 iu issue ; 
 
 not the 
 materials of 
 proof. 
 
 Letters, and 
 other docu- 
 mentarv 
 evidencc 
 admitted as 
 evidence, 
 without being 
 specifically 
 noticed in the 
 pleadings. 
 
 Letters not, in 
 general, used 
 as admis- 
 sions, if not 
 mentioned 
 in the 
 pleadhigs. 
 
 Same rule 
 applies to all 
 admissions.
 
 Sad 
 
 EVIDKXCE. 
 
 C. XXII.§ 3. 
 
 Convorsii- 
 tions, when 
 ivlioil upon as 
 I'ontossious, 
 niust bo 
 .stated in the 
 pleadings; 
 
 but not ■where 
 the conversa- 
 tion is in 
 itself evidence 
 of the fact. 
 
 Substance of 
 the case must 
 be proved ; 
 
 but only so 
 much of the 
 allegations as 
 will entitle 
 the plaintiff 
 to a decree. 
 
 c:iso whore tho admissiou or coulc'ssiou of :i party is to be made 
 use of against him ; thus, it has been held, tliat evidence of a con- 
 fession by a party that ho was t>uiUy of a fraud, could not be read: 
 because it was not distinctly put in issue.^ So, also, evidence of 
 allciied conversations between a witness and a party to the suit, 
 in which such j^arty admitted that he had defrauded the other, 
 was rejected: because such alleged conversations had not been 
 noticed in the pleadings.^ "No man," observes Sir Anthony Hart, 
 '' woidd be safe, if he could be affected by such evidence. Lord 
 Talbot said, long ago, that if you are to oust a defendant for fraud 
 alleged against him, and the fraud is proved by the acknowdedg- 
 ment of the defendant that he had no right to the matter in litiga- 
 tion, the plaintiff must charge that, on the record, to give him the 
 opportunity to deny or exj)lain and avoid it." * 
 
 It is only when conversations are to be used as admissions, that 
 the rule which requires them to be stated on the record applies. 
 Where the conversation is in itself the evidence of the fact, it need 
 not be specially alluded to : as in the case of Hughes v. Garner^* 
 where the notice was comniunicated to the defendant by a conver- 
 sation, which was made use of to })rove the fact of the conversa- 
 tion having taken place, and not as an admission by the party that 
 he had received notice. 
 
 Another rule of evidence, which may be noticed in this ])lace, 
 is, that the substance of the case made by the pleadings must be 
 proved; that is, all the facts alleged upon the, pleadings which are 
 necessary to the case of the party alleging them, and which are 
 not the subject of admissions, either in the pleadings or by agree- 
 ment, must be established by evidence.^ In the case of a plaintiff, 
 however, it is sufficient to prove so much only of the allegations 
 in the bill as are necessary to entitle him to a decree.^ Thus, 
 
 1 Hall V. Maltbv, 6 Pri. 240; Mulholland 
 V. Hendrick, 1 Moll. 359. 
 
 2 F;irre:l v. , 1 Moll. 363; M'Mahon 
 
 V. Burcliell, 2 Phil. 127; 1 C. P. Co'.p. t. 
 Cott 47-5; Langlev v. Fisher, 9 Beav. 90, 
 101; Graham v. Oliver, 3 Beav. 124, 129. 
 But it Iris been held in the United States 
 by Mr. Justice Story, up m full considera- 
 tion, that the confessions, conversations, 
 and admissions of the defendant need not 
 be expresslv charged in a bill in Equitv, in 
 order to enable the jilaintiff to use them in 
 proof of facts charized, and in issue therein. 
 Smith 1". Burnham, 2 Sumner, 612; Jen- 
 kins??. El(lredge,3 Story, 183, 283, 284; see 
 Story Eq. I'l. § 265, a, and note; Brown 
 V. Chambers, Hayes Exch. 597; Malcolm 
 V. Scott, 3 Hare, 39, 63; Brandon v. (Jabin- 
 ess, 10 Ala. 155; Camden & Amboy U.lt. 
 Co. V. Stewart, 4 C. E. Green (N. J.), 343, 
 346, 347. 
 
 8 Farrell v. , vhi sup. 
 
 4 2 Y. & C. Ex. 328, 335; Graham v. 
 Oliver, ubi sup. 
 
 5 See the following works oa evidence: 
 Taylor, § 173 et seq. ; Best, § 280 tt seq. ; 
 Powell, 185 et seq. ; 1 Phil. Ev. (Cowen & 
 Hill's ed. 1839) 200 ei seq. and notes; 1 
 Greenl. Ev. § 56 et seq. ; Gresley Eq. Ev. 
 (Am. ed.) 167 et seq. The rule at Law, that 
 the evidence must substantially support 
 the plaintitTs declaration, is applicable to 
 bills in Chancery. MofFet v. Claberts, 1 
 Scam 384; Mansv v. Mason, 8 Porter, 111; 
 Shelby V Shelby,' 1 B. Mon. 278; Thomp- 
 son )'. Thompson, 2 B. Mon. 174; Beers v. 
 Botsford, 13 Conn. 146; Simplot v Sim- 
 plot, 14 Iowa (6 With.), 449; ChaflSn v. 
 KimbMll, 23 111. 36. 
 
 G See, however. Edneyv. Jewell, 6 Mad. 
 165, where an unnecessary statement was 
 required to be proved. Gresley Eq. Ev. 
 (Am. ed.) 167-169, 172.
 
 CONFINED TO MATTERS IN ISSUE. 
 
 857 
 
 ■vrhero the svat is for an account, all the evidence necessary to be C. XXII. § 3 
 read at the hearing is that which proves the defendant to he an 
 accounting party, and then the decree to account follows of course ; 
 and any evidence as to the particular items of an account, how- 
 ever useful they may be in a subseqiient stage of the cause, would 
 be irrelevant at the oi'iginal hearing.^ For this reason, where the 
 suit is agamst an administrator, or an executor, all that it is neces- 
 sary tc prove, on the part of the plaintiff, is, that the defendant 
 fills and has acted in that character. This point was much dis- 
 cussed before Lord Giiford M. R. in Laxo v. Hunter? There the 
 defendant, who had principally acted as executor of the testator, 
 admitted that he had received personal estate of the testator to 
 the amount of from 35,000?. to 45,0007. : and the plaintiff, having 
 gone into very voluminous e^adence to show how much of the 
 personal estate of the testator had come into the defendant's hands, 
 in order to prove that he had received assets to a much larger 
 amount than that admitted by the answer, proposed to enter such 
 evidence as read ; but the Master of the Rolls would not permit it 
 to be done, as the only tendency of such evidence was to show the 
 state of the account, which the Court itself could not inquire into, 
 but must refer to the Master, as the proper person for taking the 
 account.^ The same j^rinciple was afterwards acted upon, by the 
 same learned Judge, in ~Walker v. Wbodicard,* where, upon a bill 
 for an account, the liability to account having been admitted by 
 the defendant, he had entered into evidence to prove items of his 
 discharge, but was not suffered to read them at the hearing. 
 
 Where, however, through inadvertence or negligence, the 
 plaintiff has omitted to prove some particular fact which is nec- 
 essary to support his case, the Court sometimes Avill permit him times given 
 to supply the defect, by giving him leave to prove the fact ^g^ct. 
 
 Where proofs 
 deficient, 
 leave some- 
 
 1 Gresley Eq. Ev. 168 ; Dubourg De St. 
 Colombe v. United States, 7 Peters, 625, 
 626; Hudson v. Trenton, &c, Manuf. Co., 
 1 C. K. Green (N. J ), 47'); Lockett v. 
 Lockett, L K. 4 Ch. Ap. -336. Tlie Court 
 should be satisfied that the plaintiff' is en- 
 titled to have Hn account taken. If the 
 Court is satisfied upon that point the prac- 
 tice is tf) refer the ciise to a Master to state 
 the details of the account, and ascertain 
 tlie balance. Hut the Chancellor may, if 
 he sees fit, take tlie iiccount him«elf. He 
 not only may, however, Imtouglit to refuse 
 an ac<-iiuni, if he is sutistied u|)on the evi- 
 dence that nothitip is due the plaintiff', or 
 that for any cau-^e sin account ought not 
 to hf. d'-creed. (Jampbell v. (Jatni)l>ell, 4 
 Iliilst. Ch. (X. .1.) 74;i; see VVriglit v. Mc- 
 K.;:in, 2 Hea-ley (N .1.), 259. Where the 
 evidence has liecri tnken on hoth sides ht- 
 fore th<? heirin^j, without ohjcctinn, it may 
 be u'-ed by the Court, so far as inav he 
 necessary, in giving directions to the Slas- 
 
 prove 
 
 ter, as to the manner of taking the account, 
 and the principles by which he should be 
 governed in taking it. The decree must 
 direct to what matters the account shall 
 extend, an<l ill decreeinga general account, 
 special directions will be rendered proper 
 and necessary by the particular circum- 
 stances of the case. Hudson v. Trenton, 
 Sec. Manuf. Co., 1 C. E. Green (N. J.), 
 47.5, 477, 478; Izard v. Bodine. 1 Stockt. (N. 
 J.), 311; Shurpt' Morrow, 6 Monroe, 300; 
 lieinsen v. Rem^en, 2 .lohn. Ch. 501. 
 
 2 1 Russ. 100, 102. 
 
 2 Hudson V. Trenton, Sec. Manuf. Co., 1 
 C. K. Green (N. J.), 475, 477. 
 
 4 1 Russ 107, 110; Smith v. Chambers, 
 2 I'hil. 221, 22G; S. C. nom. Chambers v. 
 Smith, 11 Jur. 359; see, however, the ob- 
 servations of Sir J. VVigram V. C. in Tom- 
 lin V. Tomlin, 1 Hare. 241,245; and sec i6. 
 241, n.; see also Forsyth v. Kllice, 2 M'N. 
 & G. 209, 214.
 
 858 
 
 EVIDENCE. 
 
 C. XXII. $ ;!. 
 
 Application 
 to supply 
 proot: liow 
 made. 
 
 Mode of 
 proof. 
 
 Inquiry into 
 the fact; 
 
 innittf.l.i Tliis is froquoiitly done in the case of wills tlisj^sing 
 of ii'nl ostato,- wlierc oitlKT the i^laintiif has relied ii])pn an 
 athnission of tlie will by answer, whieh the Court thinks not suf- 
 lieiently tull,** or where the absenee or death of one of the wit- 
 nesses to the will,* or the testator's sanity,'^ has not been proved.^ 
 The ])raetice of the Court, in this res])eet, is not confined to cases 
 of wills: a cause has been ordered to stand over, for the purpose 
 of allowing: jiroof of the due execution of a deed, or the death of a 
 l^arty," or the fact of trading; « and we have before seen,« that 
 where the i)laintiff has omitted to give due proof at the hearing 
 of the fact of the defendant being out of the jurisdiction, lie has 
 been allowed to prove it. So, Avhere the ])laintifr had relied ui)on 
 the admission of facts by the answers, and it was held that, some 
 of the defendants being married women, the admissions in their 
 ansAvers would not bind them, the Court of Exchequer allowed 
 the cause to stand over, Avith liberty to the plaintiff to suj)j)ly the 
 requisite proof^'^ And Avhere the evidence read at the hear- 
 ing, to prove the loss of a deed, was held not sufficiently strong to 
 entitle the party to read secondary evidence of its contents, Sir 
 Thomas Plumer M. R. gave the plaintiff leave to prove the loss 
 of the deed more stilctly." 
 
 In general, orders of this nature are made upon a sim])le a])pli- 
 cation by counsel at the hearing of the cause; the application 
 may, however, be made before the hearing :^^ in which case it 
 was foiTuerly made on motion ;^^ or by petition;" and, it is 
 presumed, may now be made, either by motion,^^ or by summons 
 in Chambers.^^ Formerly, when the evidence in causes Avas taken 
 on interrogatories, the plaintiff was permitted to exhibit an in- 
 terrogatory to prove the fact desired; now, he is permitted to 
 prove it, either viva voce, or by affidavit.^" 
 
 In Edney v. Jewell,^'' the Court, instead of directing an inter- 
 rogatory to be exhibited to prove the fact omitted, directed an 
 
 1 See Seton, 1118. 
 
 2 Lecliinere v. 15rasier, 2 J. & W. 288; 
 Chichester v. Chichester, 24 Beav. 2S'9. 
 
 3 Potter V. Potter, 1 Ves. S. 274; Belt's 
 Sup. 147; and see Hood v. Pimm, 4 Sim. 
 101, 110. 
 
 * Wood V. Stane, 8 Pri. G13. 
 
 5 Abrams r. Winsliup, 1 Russ. 526; 
 Wallis V. Hodgson, ib 527 n. ; 2 Atk. 56. 
 
 6 See Giesley. Eq. Ev. (Am. ed ) 132- 
 138, where many instances are given of 
 relief in cases of defects or omissions, 
 whether they are hroupht to light and be- 
 come material in consequence of something 
 which arises unexpectedly in the course of 
 the proceeilings, or were caused hy acci- 
 dent or inadvertence 
 
 " Moons V. De Bernales, 1 Russ. 301. 
 8 Lechmere v. Brasier, vbi sup. 
 
 9 Ante, p. 152; Hughes «. liaJes, 1 Hare, 
 486,488; 6 .lur. 455. 
 1" Hodgson V. Merest, 9 Pri. 663. 
 
 11 Cox V Allingham, Jhc. 337, 341, 345. 
 
 12 Douglas V. Archbutt, 23 Beav. 2^3. 
 
 13 Attorney-General!; Tliurnall,2 Cox, 2. 
 
 14 Cox V. Ailinpham, tihi sup. 
 
 15 See 15 & 16 Vic. c. 80, § 26; 15 & 16 
 Vic c. 86, § 38. For forms of notice of 
 motion and summons, see Vol. III. 
 
 18 See 13 & 14 Vic. c. 35, § 28; 15 & 16 
 Vic. c. 86, §§ 38-41; Onl- XIX.; Onl. 5 
 Feb., 1861. In Smith v. Bhickman, cited 
 Seton, 1117, the Court would not allow the 
 testator's will to be proved at the hearing 
 by atiidavit; Init gave leave to exhibit an 
 interrogatorv for that purpose. 
 
 l'^ 6 Mad. 165.
 
 CONFINED TO MATTERS IN ISSUE. 859 
 
 inquiry into the fact : and it seems that, in some cases, the C. XXII § 3. 
 
 deficiency of proof against infants may be supplied in the same ' * ' 
 
 manner.^ It is not, hoAvever, the practice to direct inqi;iries '^"t not as to 
 
 as to any facts which are the foundation of the relief: such as the tN";^ch are the 
 
 execution of a will, or the fact of trading:.^ The course, in such fo""fJatiun ot 
 
 ■^ reuet. 
 
 case, is to order the cause to stand over, and direct the proofs to 
 be supplied : in which case, the cause must be again set down.^ 
 In Miller v. Priddon; * however, where the plaintiffs claimed to 
 be the children of a certain marriage, but did not j^rove that they 
 were so, an inquiry was directed. 
 
 In some cases, the Court, instead of ordering the cause to stand 
 over for the purpose of supplying the deficient evidence, will 
 make a decree as to all that part of the case which is in a situa- 
 tion to be decided upon, and give liberty to prove the rest. This I" '^^^^ ^^'^'r^ 
 has been frequently done in the case of a will, where, although it make a par- 
 was not sufficiently proved to afiect the real estate, the Court has ^'^ decree. 
 decreed an account of the personal estate, with liberty to supply 
 the deficiency of proofs In Martin v. 'Whichelo^ Lord Cotten- 
 ham, in reference to the cases on this subject, said : " It is im- 
 possible to reconcile the cases, or to extract any principle upon 
 which any fixed rule can be founded. The Court has exercised 
 a wide discretion in giving or refusing leave to supjily the defect 
 of e\idence : in doing which, the merits of the case, upon the 
 plaintiff's own showing, ought to have a leading influence." The 
 last-mentioned case was a creditor's suit, where the plaintiff had 
 taken the bill pro confesso against one of the defendants, who was 
 the executor, but had adduced no evidence of his debt as against 
 the other defendants, who were the devisees of the testator's real 
 estate, and who did not sufficiently admit the debt; and his Lord- 
 ship refiised to allow the plaintiff an opportimity of going into 
 new evidence against the devisees, and dismissed the bill with 
 costs against them : as the plaintiff, on her own statement, ap- 
 peared to be a simple contract creditor, suing the devisees of the 
 real estate more than six years after the debt accrued : although 
 the personal representative had received amjile assets, and a 
 judgment de bonis testatoris, et^ si non de bonis propriis^lv.xd been 
 obtained against him. In Davies v. Davies^ Sir J. L. Knight 
 Bruce V. C. allowed evidence of the due execution of a will to be 
 supplied ; but thought that the defendants were entitled to have 
 
 1 See Qiiantofkr. I'.uHt.n, n Mad. SI, 82; of Lonl Truro in Fowler r. Uevniil. 3M'N. 
 Gflseovne v. Laiiilj, 1 1 Jiir. WZ, V. C K. 15. & <i. 500, oil ; lo .Iiir. lOlli, 1021. 
 
 2 Leclimcre r. Hra.Mer, 2 .1. & W. 2>-9; 5 I.echmere r. IJiasier, 2 J. & W. 289; 
 Holdun r. Ilearri, 1 Hcmv. 445, 45C; Chap- Rossiter v. Pitt, 2 :\Ia(i. 165. 
 
 man V. Chapirian, 13 Beav. 308. 6 C. & 1'. 257, 261; see also Simmons i'. 
 
 8 Leehinere r, IJrasier, vln sup. Simmons, 6 Hare, StiO; 12 .Fur. 8, 11 ; WiU 
 
 * 1 M'N. & G. 687 ; and see obsen-ations Jiams ?•. Knipe, 5 IJcnv. 273, 276. 
 
 7 3 De G. & S. 69«.
 
 800 
 
 EVIDKXCE. 
 
 c\ XXII. §4. (l;e OAidcnoo sup]'lio;l it; -wlintevor lunnnor tlicy niiy;lit elect ; and, 
 
 * y ' in neeonlance witli tlieir desire, directed the plaintiffs to bring an 
 
 action of eji'i'tnicnt.^ 
 
 Section IV. — Of the J^fect of a Variance. 
 
 Of variance 
 between the 
 statement 
 and proof. 
 
 Where rights 
 founded on 
 prescription. 
 
 It is not only necessary that tlie substance of tlio case made by 
 each party should be proved, but it must be substantially the 
 same case as that Avhich he has stated u])on the recoi'd : ^ for the 
 Court will not allow a ])arty to be taken by surprise, by the other 
 side proving a case ditierent from that set up in the pleadings.^ 
 Thus, the specific performance of an agreement, to grant a lease 
 for three lives, cannot be decreed upon what amounts to evidence 
 of an agreement to grant only for one life.* The principles 
 which guide the Court, in matters of this description, are clearly 
 stated by Lord Redesdale, in his judgment in Deniston v. Little^ 
 where his Lordship observes, that the general practice of the 
 Court is to compel parties, who come for the execution of agi-ee- 
 ments, to state them as they ought to be stated, and not to set 
 up titles which, when the cause comes to a hearing, they cannot 
 support. 
 
 We have seen, in a former part of this Treatise, that, in bills 
 where the rights asserted are founded on prescription, a con- 
 siderable degree of certainty is required in setting out the plain- 
 tiff's case ; ^ to which may be added, that, in general, the proof 
 must correspond in certainty with the case so set out.'' Thus, 
 the Court of Exchequer, in deciding upon tithe questions, was 
 in the habit of requiring that the proof of a modus should cor- 
 respond with the modus as laid in the bill.^ And so, in other 
 cases, where particular customs are prescribed for, the evidence is, 
 
 1 See Seton, 1117, where the eases on 
 the subject of supplying defective evidence 
 are collected. 
 
 2 Greslev Eq. Ev. (Am. ed.) 170-173; 
 
 1 Greenl.'Ev. § 63 et seq. ; 1 I'hil. Ev. 
 (Cowen & Hill's ed. 1839) 205 et seq. tmd 
 notes; Hobart v. Andrews, 21 Pick. 526, 
 634; Bellows v. Stone, 14 N. H. 175; Cro- 
 thers V. Lee, 29 Ala. 337; Bowman v. 
 O'Reilly, 31 Miss. (2 George) 261; Hev- 
 nolds V. Morris, 7 Ohio (X. S.), 310; Wil- 
 liams t'. Starr, 5 Wis. 534; Gurney w. Ford, 
 
 2 Allen, 576; Andrews v. Farnham, 2 
 Stockt. (N. J.) 91; McWhorter v. McMa- 
 han, 10 Paige, 386; Sears v. Barnum, 1 
 Clark. 139; Simplot v. Sitnplot, 14 luwa 
 (6 With.), 449; Feckhan v. Buffum, 11 
 Mich. 529; Holman v. Vallejo, 19(jal. 498; 
 Singleton v. Seoft, 11 Iowa (3 With.), 589; 
 Ohling V. Luitjeiis, 32 111. 23. 
 
 3 As to variance generallj', see the fol- 
 
 lowing ■vt'orks on evidence: 1 Phillips, 569 
 et seq. ; Pavlor, § 172 et seq. ; Best, § 287; 
 Gresley, 242; Powell, 193. 
 
 4 Lindsay v. Lynch, 2 Sch. & Lef. 1; 
 see also Mortimer v. Orchard, 2 Ves. J. 
 243 ; Legh v. Haverfield, 5 Ves. 453, 457 ; 
 Woollam V. Hearii, 7 Ves. 211; Deniston 
 V. Little, 2 Sch. & Lef. 11, n.; Savage v. 
 Carroll, 2 Ball & B. 451 ; Daniels v. Davi- 
 son, 16 Ves. 249, 256; Story Eq. PI. § .394, 
 n.; Harris v. Knickerbocker, 5 Wend. 638. 
 
 5 2 Sch. & Lef. 11, n. 
 
 6 Ante, p. 369. 
 
 7 1 Greenl. Ev. §§ 71, 72. 
 
 8 Scott 17. Fenwick, 3 Eagle & Y. 1318; 
 Uhthoff V. Lord Huntinglield, 2 ib. 649; 
 cited 1 Pri. 237; Prevost v. Benett, 3 
 Eagle & Y. 705; 1 Pri. 236; Blake v. 
 Veysie, 3 Dow, 189; 2 Eagle & Y. 699; 
 Miller v. Jackson, 1 Y. & J. 65.
 
 EFFECT OF A VARIANCE. 
 
 801 
 
 in general, required to be in conformity witli the statement in the 
 pleadings. In The Dean and Chapter of Ely v. Warren^ how- 
 ever, Lord Hardwicke said, that the Court of Chancery woukl not 
 put jiersons to set forth a custom with so much exactness as is 
 requisite at Law, or with so much nicety as the Court of Excheq- 
 uer expects. 
 
 "We have seen before that, in some cases, where a plaintiff has 
 alleged a different agreement, in his bill, from that which has been 
 admitted by the answer, the Court has permitted the plaintiff to 
 amend his bill, by abandoning the first agreement and insisting 
 u2>on that stated upon the answer;^ and when the defendant sets 
 up a parol variation from the written contract, it will depend on 
 the particular circumstances of each case whether that is to defeat 
 the plaintiff's title to specific i^erfonnance, or whether the Court 
 will perfomi the contract : taking care that the subject-matter of 
 this parol agreement or understanding is carried into effect, so 
 that all parties may have the benefit of what they contracted 
 for.^ When, however, there is a material variance in a written 
 agreement, it is the ordinary practice to dismiss the bill with costs, 
 without prejudice to the plaintiff's bringing anew bill.* In Morti- 
 mer V. Orchard,^ hoAvever, where the plaintiff had prayed the s\)Q- 
 cific performance of an agreement stated in the bill, but proved a 
 parol agreement which was quite different. Lord Rosslyn, although 
 he thought the bill ought to be dismissed, yet, as thei-e had been a 
 partial execution of some agreement between the parties, by the 
 building of a house, directed a reference to the Master, to settle a 
 lease pursuant to the agreement confessed in the answer. 
 
 The rules which have just been discussed, relate to the general 
 aim or tendency of the j^roof to be adduced. There ai'e other 
 rules relating to the medium of proof, independently of its ten- 
 dency, which might properly be introduced in this place, such as 
 the General Rules : that the best evidence which the nature of the 
 case admits, ought to be produced, and that hearsay of a fact is 
 not admissible ; but a discussion of these rules would extend this 
 Treatise beyond all reasonable limits. The reader is, therefore, 
 referred to the Treatises on the Law of Eviilonce ; *' and it is to be 
 observed, that what he will find to be laid down in any of those 
 
 C. XXII. § 4. 
 
 "Where parol 
 variation 
 from written 
 contract set 
 up. 
 
 Other general 
 rules: 
 
 best evidence 
 must be pro- 
 duced; 
 hearsay not 
 admissible. 
 
 1 2 Atk. 190. 
 
 2 AiUt:, p. 408; Bellows v. Stone, 14 N. 
 H. 175; such iiineiidineut may be allowed 
 even after h hearing upon bill, answer, and 
 cvid«[ice. Ibi'l. 
 
 * London and Hirmingham Railway 
 Coni|)any v. Winter, C. &. 1'. t;2; and see 
 Ben^orl v. (ilastonhurv Cmal (Jompany, 1 
 C. P. Coop. t. Cott. 360; C. P. C<.op. 42. 
 
 * Lindsay v. Lynch, 2 Sch. & Lef. 1 ; 
 
 WooUam i'. Hearn, 7 Ves. 211, 222; Denis- 
 ton V. Liitle, 2 Sch. & Lef. 11, n. 
 
 6 2 Ves. J. 243; sec Mory Etj. PI. § 394 
 and note. 
 
 As to iiEST evidence: see 1 Phillips, 
 Cli;ip. IX.; Taylor, §§ .3(;3-397 ; Hesf, 
 §§ 87-107 ; Gresley, 247. As to iikaksay : 
 see 1 Phillips, Chap. VllL; Taylor, §§ 507- 
 642; Best, § 497; llubback, 048-711; 
 Gresley, 304-325 ; Powell, 84-U3.
 
 862 
 
 EVIDENCE. 
 
 C. XXII. § 5. Tivatisos to bo the rule of oviilcMico in Courts of Law, will gener- 
 ally bo npplioablo to oasos in Courts of Equity.^ 
 
 Section V. — Documentary Evidence w/nch proves itself. 
 
 Genera] na- 
 ture of proofs. 
 
 Doeumentar}- 
 evidence : 
 does not 
 include 
 depositions of 
 witnesses ; 
 
 nor evidence 
 bv aflidavit. 
 
 Division of 
 
 documentary 
 
 evidence. 
 
 Documents 
 which prove 
 themselves : 
 
 copies of Acts 
 of Parlia- 
 ment; 
 
 Having ondoavorotl to direct the praotitioner''s attention to the 
 matters which it will be necessary for him to prove in the cause, 
 the next thing to be considered is the evidence by which such 
 matters are to be substantiated. This evidence may be either : 
 I. ]3ocnmontary ; or, II. The testimony of witnesses. 
 
 Documentary evidence consists of all those matters which are 
 submitted to the Court in the shape of written documents. It is 
 not, of course, intended to include in this donnition the depositions 
 of witnesses examined in the cause : for although, by the practice 
 of Courts of Equity, the evidence to be derived from the parol 
 examination of witnesses is set down in writing, and brought be- 
 fore the Court in that form, yet this does not vary the nature of 
 the evidence itself: which, being spoken by the witness viva voce 
 to the person by whom he was examined, does not, from the cir- 
 cumstance of its being committed to writing, for more convenient 
 use before the Judge, lose its parol character. Neither is it in- 
 tended to include evidence by affidavit: which is now the most 
 usual form in which the evidence of the witnesses is adduced. 
 Such evidence is, in tact, a sim2)le and easier mode by which the 
 parol evidence of witnesses is communicated to the Court. 
 
 Some descriptions of documentary evidence are admitted by the 
 Court, without the necessity of any proof being gone into to 
 establish their validity ; whilst others require the supj^ort of parol 
 testimony, before they can be received. It is proposed, in this 
 section, to consider documentary evidence of the first description ; 
 and, in the next section, to treat of documents which require parol 
 proof 
 
 All cojjies of public or iDrivate Acts of Parliament, puqjorting 
 to be printed by the Queen's printer, and all coj^ies of the journals 
 of Parliament, and of Royal proclamations, pui-jiorting to be printed 
 by the Queen's printer, or by the printers of either House of Par- 
 liament, are admitted as e\'idence thereof.^ And it is to be observed, 
 
 1 Manning v. Lechmere, 1 Atk. 453; 
 Glj-nti V. Bank of England, 2 Ves. S. 41; 
 Morrison v. Hart, 2 bibb, 5 ; Lemaster v. 
 Burckhart, 2 liibb.2i); Dwiglitv. i'otneroj', 
 17 Al.iss. 3o3; 1 (ireenl. Ev. § 98 et seq. ; 
 Gresley Eq. Ev; (Am. ed.) 218 el seq. 
 
 2 8 & 9 Vic. c. 113, § 3; 13 & 14 Vic. c. 
 21, § 7; Taylor on Evid. §§ 1368, 1371, 
 
 1372; 2 riiil. on Evid. 135, 194. Private 
 Acts of Parliament, not printed by the 
 Queen's printer, are proved by an examined 
 copy, compared with the original in the 
 Parliament Oliice at Westminster Taylor, 
 § 13e38; llubback, U13; see 1 Greenl. Ev. 
 §§ 479,482.
 
 DOCUMENTARY EVIDENCE WHICH PROVES ITSELF. 
 
 863 
 
 that copies of the statutes of Great Britam and of Ireland respec- 
 tively, before the Union, are received as conclusive evidence of the 
 several statutes, in the Courts of either kingdom.^ 
 
 Exemplified copies of records in other Courts of Justice under 
 the Great Seal of Great Britain, or under the seals of the Courts 
 themselves,^ and the seal of the Queen, and of the superior Courts 
 of Justice, and of the Courts established here by Act of Parlia- 
 ment, are admitted in evidence, Avithout extrinsic proof of their 
 genuineness.^ 
 
 In like manner, all proclamations, treaties, and other acts of 
 State, of any Foreign State, or of any British colony : and all judg- 
 ments, decrees, orders, and other judicial proceedings of any 
 Court of Justice in any Foreign State, or in any British colony, 
 and all affidavits, pleadings, and other legal documents filed or 
 deposited, in any such Court : may be proved by examined or 
 authenticated copies : that is to say, in the case of a proclamation, 
 treaty, or other act of State, the authenticated copy must puq^ort 
 to be sealed with the seal of the Foreign State or British colony to 
 which the original document belongs ; but if the document sought 
 to be proved be a judgment, decree, order, or other judicial pro- 
 ceeding of any Foreign or Colonial Court, or an affidavit, pleading-, 
 or other leading document, filed or deposited in any such Court, 
 the authenticated copy, to be admissible in evidence, must purport, 
 either to be sealed with the seal of the Foreign or Colonial Court, 
 to which the original document belongs, or, in the event of such 
 Court having no seal, to be signed by the Judge, or if there be 
 more than one Judge, by any one of the Judges ; and the Judge 
 must attach to his signature a statement in writina; on the said 
 
 c. xxn. § 5. 
 
 Copies of 
 records under 
 seal. 
 
 Foreign and 
 colonial acts 
 of State, 
 judgments, 
 &c. 
 
 1 41 Geo. III. c. 90, § 9; 1 Greenl. Ev. 
 § 480; Young V. Bank of Alexanilria, 4 
 Cranch, 388; Biddis v. James, G binney, 
 321,320; Gresley Eq. Ev. (Am. ed.) 302- 
 30.i; 1 Ptiil. Ev. (Cnwen & Hills ed. 
 lt^.39) 317 tt st'j. It is n.-t tiie duty uf 
 Coifi'ts to taki' judicial iioiice ol the execu- 
 tion of a public statute. Canal Cumpauy 
 V. Railroad Company, 4 Gill & .J. 7; see 1 
 Gre^nl. Ev. § 481. In Massachusetts, the 
 printed copies of nil statutes, act.s, and 
 resolves of the Commonwealth, whether of 
 a public or a private ii:itur>', which siiall 
 be published under the authority of the 
 government, shall be admitted as sufficiint 
 evidence tlienof, in all Courts of haw, and 
 on all occasiuns whatever. Genl. Sts. c. 
 131, § 02. 
 
 As to the proof of foreiijn laws, of the 
 lawsol sister States, of the hiws of Congress 
 in the State Courts, and of the laws of the 
 States in the Courts of the United Stale-', 
 flee 1 (Jreeid. Ev. §§ 480, 4s7, 4kk, 48'J, 4U0. 
 In Mass;i(:husetls, printed copies of tlie 
 Statute Laws ol any other State, and of 
 
 the United States, or of the territories 
 thereof, if purporting to be published under 
 the authi>rity of the respective govern- 
 ments, or if coniuioiily iidmitied and re;id 
 as evidence in their Courts, shall be admit- 
 ted ill all Courts of Law, and on all other 
 occasioi:s, in that State, f\& prima facie evi- 
 dence of such laws. Gt'ul. Sts. c. 131, § 63. 
 For the mode of authenticating tiie records 
 and judicial proceedings of one State to be 
 usea in the Courts of other States, see 1 
 Greeid. Ev. §§ 5U4-506. 
 
 ^ See 1 Greenl. Ev. § 501. 
 
 3 2 Phil, on Evid. lu"; Taylor, §§ 409, 
 1378; 1 Greenl. Ev. § 003." As to the 
 proof, of British treaties, charters, letters- 
 patent, grants from the Crown, pardons, 
 and commissions, see Taylor, § 1371; of 
 the general rec<;rds of the realm, in the 
 custody ol the Master of the Uolls, see I 
 & 2 Vic. c. 94, §§ 12, 13; Taylor, § 1377; 
 and of docnnieiiis belonging to the Com- 
 mon Law side of tiie Court of Chancery, 
 see 12 & 13 Vic. c. 109, §§ 11, 13; Tavlor, 
 § 1386.
 
 864 
 
 EVIDENCE. 
 
 C. XXII. 5 5. 
 
 Foreign law. 
 
 Ireland. 
 
 Rejjisters, 
 and certifi- 
 cates of 
 register, of 
 British 
 vessels. 
 
 Certified 
 copies or ex- 
 tract: when 
 admissible in 
 e^-idence : 
 
 copy, '' tliMt tlie Cotirt wlioreoflio is ;i Judge, lias no sen]." And 
 wlu'ie the authentieatetl eopies ]>iirj)ort to be sealed oi" signed 
 as alH»ve nieiitii)ned, tlie same are to be a(bnitted as evidence, in 
 every ease in m liicli tiie original docnnient eonld have been re- 
 eeived in e\ idenee, \vitlu)nt any })roof of tlie seal, where a seal is 
 nei-essary, or oi" the signature, or of the truth of the statement 
 attaehed thereto, where sueh signature and statement are neces- 
 sary, or of the judicial character of the person ai)i)earing to have 
 made such signature and statement.-^ 
 
 It may be obsei-ved liere, that (juestions of F'oreign Law are 
 questions of fact, which must be determined, in each case, oil the 
 evidence adiluced in it: and for this purpose, a decision on a Ibr- 
 mer case, or the evidence then made use of, is not available.'^ 
 
 Documents which ai'c admissible without formal T>roof in Eno-- 
 land, are also admissible in Ireland, and vice versa /^ and such 
 documents are in like manner admissible in Colonial Courts.* 
 
 Registers of British vessels, and certificates of register, purport- 
 ing to be duly signed, are received in evidence as prima facie 
 proof of all the matters contained or recited in such register, and 
 of all the nuitters contained or recited in or indorsed in such cer- 
 tificate of registry, without proof of the signature.^ 
 
 Whenever any book or other document is of such a })ublic 
 nature as to be admissible in evidence, on its mere production 
 from the proper custody, any copy thereof or extract therefrom is 
 
 1 14&15Vic.c. 99,§7; Tavlor,§§ 1372, 
 1398; see 1 Greenl. Ev. §"514. Il the 
 foreign document sought to be proved by a 
 copy does not fall within the lui.guage (if 
 section 7, evidence must be given that it 
 is a public writing, deposited in some regis- 
 try or place, whence, by tiie law, or the 
 established usage of the country, it cannot 
 be removed ; and the copy must then be 
 shown to have been duly examined. Tay- 
 lor, § 1398. 
 
 2 Earl Nelson v. Lord Bridport, 8 Beav. 
 527, 504; M'Cormick v. Garnett, 5 De G., 
 M. & G. 278; and see Sussex Peerage 
 Case, 11 CI. lis: ¥. 85; Di Sora v. Phillips, 
 10 H. L. Ca. 024; Taylor, §§ 1280, 1281, 
 1370; United states of America «. M'Rae, 
 L. R. 3 Ch. Ai>. 85, 86. English Courts 
 may now ascertain what the foreign law is, 
 by sending cases for the opinion of foreign 
 Courts; but, unless they are in countries 
 under tne government of tiie (^ueen, a con- 
 vention must first be eiiteied into with tlie 
 foreign government. 22 & 23 Vic. c. 63; 
 24 & 25 Vic. c. 11; and see post, Chap. 
 XXVII. Trials of Questions of I'act. Itis 
 believed that no such convention has yet 
 been made. In Massachusetts, the unwrit- 
 ten or common law of any oiherof the Uni- 
 ted States, orol the territnries tliereol', may 
 be proved as facts by pand evidence ; and 
 the books of reports of cases aojudged in 
 
 their Courts may al.so be admitted as 
 evidence of such law. Genl. Sts. c. 131, 
 § 64. The existence, tenor, or etfect, of 
 all foreign laws, may be proved as facts, by 
 parol evidence; but if it appears that the 
 law in question is contained in a written 
 statute urcod-', the Court may in its dis- 
 cretion reject any evidence of such law 
 that is not accompanied b3- a copy thereof. 
 
 y^. §05. ^■^ 
 
 Where the plaintiff relies upon a con- 
 tract made in another State, and tlie de- 
 fendant claims that it is void by the 
 laws of that btiite, he must show its 
 invalidity as well by his pleadings as 
 by his proof. It is not sufficient for the 
 defendant to allege in his answer that the 
 contract is void by the laws of the land; 
 because that only draws the attention of 
 the Court to the laws of the State in which 
 the proceedings are pending. Courts will 
 not tx iijjicio take notice ot foreign laws. 
 Ciiiniiioii V. Kille, 1 iMcCarter(N. J.), 229. 
 For form of case, see Vol. III. 
 
 8 14 & 15 Vic. c. 99, §§ 9, 10 ; Ite Mahon, 
 9 Hare, 459. As to Scotch Bankruptcy 
 proceedings, see 19 & 20 Vic. c. 79, §§ 47, 
 73,140, 147,174; Taylor, 10 B. 1400 A. 
 
 4 14 & 15 Vic. c. 99, § 11. 
 
 6 14 & 15 Vic. c. 99, § 12; 17 & 18 Vic. 
 c. 104, § 107; Taylor, § 1451.
 
 DOCTIMENTAEY E\^DE^CE WHICH PRO^^:S ITSELF. 
 
 865 
 
 parish 
 registers. 
 
 admissible in evidence, if it be proved to be an examined copy or C. XXII. § 5. 
 extract, or if it pui-jjort to be signed, and certified as a true copy 
 or extract, by the officer to whose custody the original is intrusted.^ 
 Thus, extracts from parish registers, certified by the rector, vicar, 
 or curate to be true extracts, are evidence of the baj^tism, mar- 
 riage, or burial referred to ; and it is not necessary to prove that 
 the rector, vicar, or curate is the person entitled to have the cus- 
 tody of the register.'^ 
 
 Certified copies of entries, purporting to be sealed or stamped Under Gen- 
 with the Seal of the General Register Office, are evidence of the Act. 
 birth, death, or marriage to which the same relate, without any 
 further proof of such entry ; but no certified copy, purporting to 
 be given in the office, is of any force or eflect, unless it is so sealed 
 or stamped.^ 
 
 Copies or extracts, certified and sealed with the s^l of the Com- 
 missioners, of letters-patent, specifications, disclaimers, and memo 
 randa of alterations, and all other documents recorded and filed in and other 
 the Commissioners' Office, or in the Office of the Court of Chan- |j°^er Patent 
 eery appointed for the filing of sj^ecifications, are to be received in -^^ts. 
 evidence, in all proceedings relating to letters-patent for inven- 
 tions, without further proof or production of the originals.* 
 
 Whenever, by any Act now in force, or hereafter to be in force, Certain docu- 
 any certificate, official or public document, or document or pro- ments to be 
 
 •' ' ... received m 
 
 ceeding of any corporation or joint-stock or other company, or any evidence, 
 
 without proof 
 
 Patents, spe- 
 cifications, 
 disclaimers, 
 
 1 14 & 15 Vic. c. 99, § 14; Dorrett v. 
 Meux, 15 C. B. 142; Scolt v. Walker, 2 
 E. & B. 555. Section 14 alj^o provides, 
 tliat the officers shall furnish certitied 
 copies or extracts, on payment of not more 
 ttian 4(/ per folio of ninety words; see, for 
 cases under this section. Keg. v. 31 linwar- 
 iiig, 1 Dears. & B. 132; 2 ,Jur. N. S. 12-36; 
 Reeve V. Hodson, 10 Hare Ap. 19. For a 
 list of public books and documents, the 
 contents of which are now piovabie, 
 either by examined or by certified copies, 
 umler 14 & 15 Vic. c. 99, § 14, -ee Taylor, 
 § 1438. I'or a list of the principal public 
 registers and documents, certilieil co|)ies 
 ol wliich are receivable in evidence by vir- 
 tue of some enactment hnving special 
 reference to them, see ib. §§ 1439-1440. 
 As to the stiituaOle method^ of proof of 
 recordi or other proceedings of particular 
 tribunals, or of public records and docu- 
 ments, see ih. § 1391 tt scq. ; and sis to 
 the proof of certificates, under statutes 
 having 8[)ecial reference to tliem, see ib. 
 1441 tt ttq. ; sec Geiil Sts. Mass. c. 21, 
 § 6; St. Mhks. I)5ti7,c. 213. 
 
 •^ He Neiidy Hall's Kstate, 17 .lur. 29, 
 L. JJ.; 1 Greeiil. Kv. §§ 483-485, 4y3, 498, 
 507, 508. The case appears to be incor- 
 rectly reported in 2 1)« G , M. & G. "4'i; 
 see lit I'orier's Trusts, 2 .Jur. N. S. 349, 
 V. C. \V.; Seton, 10. The certificate 
 
 VOL. I. 
 
 should express that the person signing it is 
 the rector, &c., of the parish or pbice; see 
 Rt Neddy Hall's Estate, 2 Ue G.,M. & G. 
 749; Sugd. V. & P. 420, n. As to burials 
 in cemeteries, see 10 & 11 Vic. c. 65, §§32, 
 33; 27 & 28 Vic. c. 97. A stamp duly of 
 one penny is imposed, by 23 & 24 Vic c. 
 15, §§ 1, 2, and Sched., on every certificate 
 of birth, baptism, marriage, d'-ath, or bur- 
 ial; it is payable by the party requiring 
 the certificate, and is to be denoted by an 
 impri'ssed or adhesive stamp, to be can- 
 celled by the person who grants the cer- 
 tificate. For form of certificate, see Vol. 
 III. 
 
 3 6 & 7 Will. IV. c. 86, § 38. The iden- 
 tity of the person named in the certificate 
 must, 01 course, be proved. Parkinson v. 
 Francis, 15 Sim. 160; Seton, 15. E.Kiracts 
 from the district registries were not f >r- 
 merly received as evidence by the Court, 
 but they are now generally a'Imittfd : ibid. ; 
 IJeg. V. Mainwaiing, 1 Dears. & 15. 132; 2 
 .Jur. N. S. 1136; and see 6 & 7 Will. IV. 
 c. 80, §30; not however, it seems, at the 
 Rolls. As to the stamp duty on the certifi- 
 cate, .see supra. As to extracts from non- 
 parochial registers, (leposite<l with the 
 Hegistrar-General, under the 3 & 4 Vic. c. 
 92, see §§ 9-15; 2 Phil, on Fvid. 145; 
 Taylor, § 1440 
 
 of seal or 
 signature. 
 
 16 & 17 Vic. c. 115, § 4. 
 
 55
 
 866 
 
 EVIDENCE. 
 
 c.xxn. §5. 
 
 Judicial no- 
 tice to be ta- 
 ken of sijjna- 
 tureofF.(]uity 
 or Common 
 Law Judges. 
 
 Depositions 
 of witnesses 
 in other 
 Courts. 
 
 Depositions 
 of witnesses 
 in other 
 Courts: how 
 introduce d ; 
 
 where the 
 depositions 
 have been 
 taken under a 
 commission. 
 
 ('(.'vtlfiod copy of any (locnnuMit, by-l:uv, entry in any register or 
 otlier book, or of any otlier proceeding, is »)r sliall be receivable in 
 evidence of any particular in any Conrt of Justice, or in any judicial 
 proceeding, the same are respectively to be admitted in evidence, 
 provided they respectively purport to be sealed or imj)ressed with 
 a stamp, or sealed and signed, or signed alone, as recjuired or im- 
 j)ressed with a stamj) and signed, as directed by the respective 
 Acts, without any proof of the seal or stamp, where a seal or stamp 
 is necessaiy, or of the signature, or of the official character, of the 
 perscni ai)pearing to have signed the same.^ 
 
 All Courts, Judges, and other judicial officers, are bound to 
 take judicial notice of the signature of any of the Equity or Com- 
 mon Law Judges of the Superior Courts at Westminster, where 
 such signature is attached, or appended to any decree, order, cer- 
 tificate, or otl)^r judicial or official document.'^ 
 
 Amongst the records of other Courts of Justice, co})ies of which 
 the Court of Chancery is in the habit of receiving as evidence, 
 may be ranked the depositions of witnesses, and proceedings taken 
 in causes in other Courts of Equity of concurrent jurisdiction. The 
 rules by which the Court is governed, in receiving evidence of 
 this description are the same as those adopted by it in cases where 
 depositions taken in the Court of Chancery in one cause are of- 
 fered to be read in another ; * but no depositions taken in any other 
 Court are to be read, unless by order.* 
 
 The method of proving dejiositions taken in one Court of Equity, 
 upon the hearing of a cause in another, is, by producing a certi- 
 fied copy of the bill and answer, if one has been put in : unless the 
 depositions are so ancient that no bill and answer can be forth- 
 coming, or unless the defendant has been in contempt, or has had 
 an op])ortunity of cross-examining, which he chose to forego : in 
 which case the depositions may be read after proving the bill only.^ 
 Where the dejDOsitions have been taken on interrogatories, under 
 a commission issuing out of another Court, they are not admissi- 
 ble Avithout the production of the commission, under the authority 
 of which they were taken : unless the depositions are of long stand- 
 ing, so that the commission may be presumed to have been lost.^ 
 It is to be noticed, however, that depositions may be used as evi- 
 dence against a party to the suit, or for the purjiose of contra- 
 
 1 8 & 9 Vic. c. 113, § 1. 
 
 2 8 & 9 Vic. c. 113, § 2. 
 
 3 See post, p. 867. 
 * Ord. XIX. 4; see, however, Good- 
 
 enouf,'li V. Alway, 2 S. & S. 481 ; Williams 
 V. Broadbead, 1 Sim. 151; M;tnbv v. Be- 
 wicke, 3 Jur. N. S. 685, V. C. W. ;" in Lake 
 V. Peisley, L. K. 1 Eq. 173; 11 Jur. N. S. 
 1012, M. I{., an order to read depositions 
 taken in bankruptcy was made on an ex 
 
 parte motion ; and in Stephens v. Biney, 
 L. K. 2 Kq. 303; 12 Jur. N. S. 428, V. C. 
 W., ati order of course to read depositions 
 taken in the Palatine Court of Lancaster, 
 was discliarged as irregular. 
 
 5 2 Pbil. on Kvid. 210, 211; Taylor, 
 § 1413; Goodenougb v. Alway, ubi snp. 
 
 G 2 I'bil. on Evid. 210, 211; Taylor, 
 § 1415; 1 Greenl. Ev. § 517.
 
 DOCUMENTARY EVIDENCE WHICH PROVES ITSELF. 
 
 867 
 
 Proceedings 
 in Chancery. 
 
 dieting the witness, -u-ithout proof of the bill and answer, although C. XXII. § 5 
 some proof of the identity of the person will be required.^ 
 
 It has been before stated, that the Court of Chancery pays atten- 
 tion to its own proceedings, although they are not actually re- 
 corded : ^ in illustration of which it may be stated, that all the 
 proceedings ©f the Court, in the cause, which are requii-ed as evi- 
 dence, may be used as such, without further testimony to establish 
 them than the production of the proceeding itself, or of an office 
 copy of it, signed by the officer in whose custody such proceed- 
 ing properly is, according to the practice of the Court. 
 
 According to the former practice of the Court, it was necessary Proceedings 
 
 ,. . ^ 1 • • •i„ in another 
 
 when any proceedings m one cause were to be given m evidence ^.^^gg 
 in another, that the foundation for the production of them should 
 be laid, by proving the bill and answer in the cause in which they 
 were taken. Gradually, however, this rule has been relaxed ; and 
 the Court will now dispense with the strict proof of the bill and 
 answer,^ and make an order, that the party shall be at liberty, at 
 the hearing, to read the proceedings in the fonner cause. Such 
 an order is not, however, necessary to entitle a party to read a de- 
 cree or order.* 
 
 A decree or order of the Court of Chancery, determining a mat- 
 ter of right, is good evidence as to that right, not only against the 
 party against whom the decree was made, but against all those 
 claiming under him.^ But although a decree between other par- 
 ties cannot be read as evidence, yet it may be read as a precedent.^ 
 And it is not in any case necessary, in order that it should ])e ad- 
 missible as evidence, that the parties to it should have tilled the 
 relative situations of plaintiff and defendant : if the present plain- 
 tiff and the defendant were co-defendants in the former cause, the 
 decree in that cause may be read, though not as conclusive evi- 
 dence.'' " It frequently hapi)ens," observes Lord Ilardwicke, " that 
 there are several defendants, all claiming against the plaintift', and 
 having also different rights and claims among one another : the 
 Court then makes a decree, settling the rights of all the parties ; 
 
 Decrees or 
 orders in 
 another suit: 
 
 •when they 
 are evidence. 
 
 1 2 Phil, on Evid. 210, 211; Taylor, 
 § 141.3; see Davison v. Kobinson, 3 .Jur. N. 
 S. 791, V. C. VV.; 6 W. K. C73, L. C. ; 1 
 Greenl. Ev. § 15G. 
 
 ■■' Anlt, p. 688. The final decree of a 
 Court of Equity may be given in evidence 
 in another suit, akliougli such decree has 
 not been formally enrolled, bates v. Uela- 
 van, 1 Paige, 2'M. 
 
 8 Ord. XIX. 4; Seton, 980 e< seq. ; Tay- 
 lor, § 1413. 
 
 ■» Ord. XIX. 4; Brooks v. Taylor, Mos. 
 188; see Green v. Green, 6 Hum. 278. 
 
 f' Borough V. VVhichcote, 3 Hro. P. C.ed. 
 Toinl. 095; Maule v. IJruce, 2 C. P. Coop. 
 
 t. Cott. 215; see 1 Greenl. Ev.§§ 522, 523, 
 536; 1 Phil. Ev.(Cowen& Hill's ed. 1839) 
 358, note, 639 in 2 ib. 915 et seq. For the 
 mode of proving decrees and answers in 
 Chancery, see 1 Greenl. Ev. §§ 511, 512. 
 A decree in Chancery, being the act of a 
 Court of a sister State, must be authentica- 
 ted according to the statute of the l.'nited 
 States, 1790, May 26, 1 IJ. S. Stat, at 
 Large, 122 (1 Greenl. Ev. § 604), to be ad- 
 missible in evidence, liarbour v. Wiitla, 
 2 A K. Marsh. 290. 
 
 Austen v. Nichola.s, 7 i6. 9. 
 
 1 Askew V. Poulterers' Conipuny, 2 Ves. 
 S. 89; Belt's Sup. 299.
 
 SGS 
 
 EVIDENCE. 
 
 «\xxii.§r.. 
 
 Depositions 
 of witnesses, 
 in another 
 aiuse, be- 
 tween same 
 parties. 
 
 Depositions 
 in anotlior 
 cause cannot 
 be read, 
 unless person 
 against whom 
 they are to be 
 read was par- 
 ty or privy. 
 
 but .T (lec-laratiou for that ])iiij)oso. could not l)c made, if tliis ob- 
 joi'tion (('/.:., to rooiMviug tlio docroe as c'vidoiico, because made 
 between co-defendants) liolds : wliich would be very fatal, as it 
 would occasion tlie s))litting one cause into several."^ 
 
 The depositions of witnesses, which have been taken in another 
 cause, may, as well as other ])roceedin<is, be read at» the hearing, 
 under an order to be obtained for tliat imrpose,-' if the two suits 
 are between the same parties or their privies, and the issue is the 
 same ; '' and such depositions are admissible in evidence in the 
 former cause.* Tints, evidence which has been taken in a cross- 
 cause may, by order, be read at the hearing of the original cause,^ 
 and vice versa, provided the point in issue is the same in each case. 
 Where the matter in issue is not the same, the depositions taken 
 in one cause cannot be read in the other ; " and even where two 
 suits related substantially to the same matters, one suit being in- 
 stituted by the first tenant for life in remainder, and the other by 
 the lirst tenant in tail in remainder; Sir J. L. Knight Bruce V. C. 
 refused to allow the evidence, taken in one suit, to be used in the 
 other.' Where the person, against whom the evidence is offered, 
 was neitlier a party to such other cause, nor privy to a person who 
 was a party, the depositions taken in that cause cannot be read ; 
 thus, where a father is tenant for life only, depositions taken in a 
 cause to which he was a party, cannot be read against his son who 
 claims as tenant in tail.* The rule with regard to reading deposi- 
 tions in another suit, appears to be the same as that with resi^ect 
 to reading verdicts at Common Law, namely : " that nobody can 
 take a benefit by it, who had not been prejudiced by it had it gone 
 contrary."^ Thus, it has been held, that if A. prefers his bill 
 against B., and B. exhibits his bill against A. and C, in relation to 
 the same matter, and a trial at Law is directed, C. cannot give in 
 
 1 Ibid. ; see also, Chamlev v. Lord Diin- 
 sany, 2 Sch. & Lef. 710, H. L.; Farquhar- 
 son V. Seton, 5 Russ. 45, 63. 
 
 2 See post, p. 871; Leviston v. French, 
 45 N. H. 21. 
 
 3 Mack worth v. Penrose, 1 Dick. 50; 
 Lade i'. Lingood, 1 Atk. 203; Humphreys 
 V. I'ensam, 1 M. &, C. 580, 5&6; Hope v. 
 Liddell (No. 2), 21 Beav. 180; Williams 
 V. Williams, 10 Jur. N. S. 608; 12 W. li. 
 663, V. C. K. ; Maule v. Bruce, 2 C. 1'. 
 Coop. t. Cott. 215; Brooks v. Cannon, 2 A. 
 K. Marsh. 525; Leviston v. French, 45 N. 
 H. 21; Gresley Eq. Ev. (Am. ed.) 185, 186; 
 1 Phil. Ev. (Cowen & Hill's ed. 183.0) 364, 
 and notes in 2 j6. 934, 935; Harrington v. 
 Harrington, 2 Howard, 701 ; Payne v. 
 Coles, 1 Munf. 373; Dale v. Rosevelt, 1 
 Paige, 36; Roberts v. Anderson, 3 John. 
 Cb. 376 ; see Luke v. Peisley, L. li. 1 Eq. 
 173; 11 Jur. N. S. 1012, M. R. ; Stephen- 
 son V. Biney, L. R. 2 Eq. 303; 12 Jur. N. 
 
 S., V. c. w. 
 
 4 Williams v. Williams, 10 Jur. N. S. 
 608 ; 12 W. K. 663, V. C. K. 
 
 5 Lubiere v. Genou, 2 Ves. S. 579, in 
 which case the cross-bill had been dis- 
 missed. Holcombe v. Holcombe, 2 Stockt. 
 (N. J.) 284; seepost, Ch;ip. XXXIV. § 1, 
 Cross Bills. For form ol Order, see Seton, 
 1275, No. 2. The order does not extend 
 to an answer not put in evidence. Moore 
 V. Harper, 1 W. N. 56; 14 W. R. 306, V. 
 C. VV. 
 
 6 Christian v. Wrenn, Bunb. 321. 
 
 '' Blagrave v. Blagrave, 1 De G. & S. 
 252, 259; 11 Jur. 744; and see Hope v. 
 Liddell, 21 Beav. 180. 
 
 8 Peterborough v. Norfolk, Prec. in Ch. 
 212; Coke v. Fountain, 1 Vern. 413; and 
 see Rhodes v. Rhodes, 14 W. R. 515, V. 
 C. W. 
 
 9 Gilb. on Evid. 28; Buller, N. P. 229; 
 2 Phil, on Evid. 8.
 
 DOCUMENTARY EVIDENCE WHICH PROVES ITSELF. 869 
 
 evidence the depositions in the cause between A. and B., but tlie C. XXII. § 5. 
 trial must be entirely as of a new cause.^ '■^ y ■' 
 
 This rule appears to be somewhat at variance with what is stated -Sec«s, in the 
 in Coke v. Fountain^ to be a common one, namely, that where ^^y\ L^tee 
 one legatee has brought his bill against an executor, and proved a'^er ikcree 
 assets, and afterwards another legatee brings his bill, that the 
 last-named legatee should have the benefit of the depositions in 
 the former suit, though he was not a party to it ; but it is to be 
 observed, that the case of the legatee is different from the case of 
 a plaintiff in ordinary circumstances ; for although the legatee was 
 not actually a pai'ty to the original suit, yet he was so virtually : 
 his interest in the first suit having been represented by the executor. 
 In fact, in the case of the legatee, the suit is in pari materia ; and, 
 with respect to the subject in dispute, the plaintiff in the second 
 suit stands in the same situation, with regard to the defendant, as 
 the plaintiff in the first. 
 
 The same principle appears to have been acted upon in other and m other 
 cases, besides those of legatees. Thus, in Terwit v. G-resham,^ <^^s*^s- 
 depositions taken in an old cause, where the same matters were 
 under examination and in issue, were permitted to be read, al- 
 though the plaintiff and those under whom he claimed were not 
 parties to the former cause : inasmuch as the terre tenants of the 
 same lands were then parties ; and so even at Law, in the case, of 
 tithes, an answer to a bill filed in the Court of Exchequer, in a suit 
 instituted by a vicar against the rector and others, owners of the 
 lands, was evidence in an action for tithes, by a succeeding rector, 
 against the owners or occu])iers of the same lands.* In like man- 
 mer, in a case before Sir Anthony Hart, in Ireland,^ dej^ositions 
 which had been taken in a suit by one tenant in common against 
 another were admitted in evidence, in a suit by another tenant in 
 common, against the same defendant. In such cases, however, it 
 must be proved, that the depositions are touching the same land 
 or tithes.^ 
 
 It seems not to be important what character the individual, R„]e as 
 against whom the depositions in the former suit are offered, filled ''etween ro- 
 in that suit, whether that of ])laintiff or defendant, provided he 
 had, in such character, an opportunity of cross-examining the wit- 
 ness. If he was a party to the first suit as a co-defendant, and 
 becomes a plaintiff in the second suit, making his co-delemlant in 
 
 1 Rushworth v. Countpss of Peml)roke, 334; see also Travis v. Clmllenor, 3. (iwill. 
 Ilardres, 472. For tlie reason, wliy a ver- 1237; Astiby r. I'owor, /V;. 123i); IJenson 
 diet is not evidence for or against a person v. Olive, 2 Gwill. 7ltl ; I'-iui of Sussex v. 
 wlio was not a party to it, see 2 pliil. on 'lV'in|)!c, 1 Lord Kayni. 310. 
 
 Evid. 8. 5 Myrne r. I-'icri'", 2 ^[(lll. 157; and see 
 
 2 IJlii git/i. Bishop of Lincoln v. ICIlis, Hiiiib. 111). 
 
 3 1 (lia. Ca. 73. Benson v. Olive, Uunb. 2b4. 
 * Lady Dartmouth v. Roberts, 16 East,
 
 870 
 
 EVIDENCE. 
 
 C. XXII. §5. 
 
 Examination 
 of dot'ondant, 
 in another 
 cause, may be 
 used against 
 him, on 
 motion for 
 decree. 
 Not neces- 
 sary that 
 witnesses 
 shoidd be 
 dead, qumre. 
 
 Rule, where 
 the bill has 
 been dis- 
 missed. 
 
 the first suit a dotoTulntit, ho inny, if sncli oo-dofoiiditnt sots tip the 
 sMino (lotoiu'c th.l1 hi' diil in the original snit, iviid tlic evidence 
 taken in that suit against such co-defendant. Thus, where the 
 creditors of a testator tiled their bill ag.ainst the residuary legatees, 
 and also against a jiurchaser from the testator, ])raying to have 
 their dehts paid, and the conveyances, alleged to have been exe- 
 cuted by the testator to the purchaser, set aside for fraud, and 
 obtained a decree accordingly, and afterwards the residuary lega- 
 tees filed another bill against the jmrchaser, praying for an account 
 of the residue, and to set aside the conveyances : upon the question 
 arising, whether the depositions taken in the former cause, as to 
 the fraud in obtaining the conveyances, could be read in the second 
 cause, for the legatees against the purchasers, who were co-defend- 
 ants in the former cause, it was held, that as there was the same 
 question and the same defence in both the causes, the depositions 
 ought to be read.^ 
 
 Where a cause had been set down for hearing on motion for a 
 decree, the Court allowed the plaintiff to use the examination of 
 the defendant, taken in another cause ; but gave leave to the 
 defendant to file affidavits in explanation, subject to the right of 
 cross-examination.^ 
 
 It may be stated here, that where the depositions of witnesses 
 in another suit are offered to be read at the hearing, against per- 
 sons who were parties to such other suit, or those claiming under 
 them, it does not ajipear to be necessary that the witnesses, whose 
 depositions were offered to be read, should be proved to be dead. 
 This appears to have been the effect of the determination of the 
 House of Lords in the City of London v. Perhin^^ and of Sir 
 John Leach V. C. in Williams v. Broadhead^ In the subsequent 
 case of Carnngton v. Gornoch^ however. Sir Lancelot Sliadwell 
 V. C. seems to have entertained a different opinion from that ex- 
 pressed by Sir John Leach, in Williams v. Broadhead ; and it is 
 to be remarked, that at Law, the depositions of a witness, taken in 
 a suit in Chancery, cannot, without a special order, be read, if the 
 witness is alive, even though he is unable to attend by reason of 
 sickness.® 
 
 Some doubt seems to have been, at one time, entertained whether 
 the depositions of witnesses, taken in a cause where the bill had 
 been subsequently dismissed, could be read at the hearing of another 
 cause ; and the rule appears to have been -laid down, that if the 
 
 1 Nevil I'. .Johnson, 2 Vern. 447 ; and see 
 Askew %}. Poulterers" Company, 2 Ves. S. 
 89, 90. 
 
 2 Watson V. Cleaver, 20 Beav. 137. 
 8 3 Bro. P. C. ed. Toml. 602. 
 
 * 1 Sim. 151. 
 
 6 2 Sim. 567; and see Blagrave v. Bla- 
 grave, 1 De G. & S. 252; 11 .Jur. 744; 
 Lawrence v. Maule, 4 Drew. 472, 480. 
 
 8 2 Phil, on Evid. 124; Taylor, § 445; 
 Gresley Eq. Ev. (Am. ed.) 186", 187.
 
 DOCUMENTARY EVIDENCE WHICH PROVES ITSELF. 871 
 
 dismissal was upon merits, evidence of the facts which have been C.xxii. § 5. 
 
 proved in the cause may be used as evidence of the same facts, in "^ y ' 
 
 another cause between the same parties ; ^ but where a cause has 
 been dismissed, not upon merits, but upon the gi'ound of iireo-u- 
 larity (as, for instance, beuiuse it comes on by revivor, where it 
 ought to have come on by )riginal bill), so that regularly there was 
 no cause in Court, and consquently no proofs properly taken, such 
 proofs cannot be used.^ IF, however, upon a bill to perpetuate 
 testimony, the cause shoull be set down for hearing, and the bill 
 dismissed because it ought lot to have been set down, the plaintiff 
 may, not\\'ithstanding the lismissal, have the benefit of the depo- 
 sitions.^ 
 
 An order for leave to Bad, at the hearing, the depositions or Order to read 
 proceedings in another caue, is granted uj^on motion of course, or <^epogitions or 
 
 /. -r* Hi proceedings : 
 
 on petition of course at tie Kolls ; * and must be served upon iiow ob- 
 the adverse party : who my, if there is any irregularity in it, or *^"^®*^- 
 in the mode in which it has been obtained, apply by motion to 
 discharge it. As, howevei it is possible that the irregularity of 
 such an order may not appar till it is acted upon at the hearing, 
 when it would be too lat to discharge it, the order is always 
 made "sa\nng all just excptions:"^ the effect of which is, to 
 leave it open to the party,against whom the evidence is offered, 
 to make any objection to te reading of e^^dence under it which 
 the nature of the case willadmit, in the same manner that he 
 might have done had no sue, order been made. 
 
 Where either party, plaintf or defendant, obtains an order to ^ , 
 use the depositions of witnesis taken in another cause, the oppo- able by oppo- 
 site party may likewise use tl same Avithout motion: unless, ujjon *'^*^ ^^^^^' 
 special reason shown to theCourt by the party obtaining such 
 order, the opposite party be p)hibited by the same order fi-om so 
 doing.® 
 
 When proceedings or deposions in another cause, in the Court Office copies 
 of Chancery, are ordered to bread as evidence at the hearing, it amrprocccd- 
 Avill be sufficient to produce thoffice copies of them. Such office '"J-'-^ >" *'han- 
 copies, however, must be signe by the jiroper officer: other\nse, Led'h/an- ° 
 thev cannot be read ; " and if athe hearing of a cause, it is found ".!'"''" '"V^^' 
 
 •' ° ' il properly 
 
 sijfued. 
 
 1 Lubiere ». Genou, 2 Ves. S. 579 6 Hand. 114, 115; see form of order, 
 M'lntosli r. Great Western Kailway Com Setoii, 1275, Nos. 1, 2. 
 
 pany, 7 I)e (i., M. & G. 737. 6 o,.j. XIX. 5. 
 
 2 Backliouse r. Middleton, 1 Gha. Ca 7 Attorney-General i'. Milward, 1 Cox, 
 17a-175; 3 Cha. Rep. 22; (Jresley Kii. Ev 437. Since 18 & 19 Vic. c. 134, § 6,oflice 
 (Am. ed.) Ib7 ; Hopkins i'. Strump, 2 Ilarr copies of decrees and orders fmni tbe Rejiis- 
 & .1. 301. trars' books, are to be ci-rtilied bv the 
 
 8 Hail t). Hoddesdon. 2 P. Wms. 1C2 Clerks of Kecords niid Writs. Seton. 16. 
 gee also Vauglian i'. Fitzgerald, 1 Sch. & The office copy of an order, or of a report 
 Lef. SK). confirmed by 'fiat, si>,'n''d by the Kcf^i^trar 
 
 ■• Ynx forms of order on motion, see Se- in Lunacy, and si'aled or stamped witii the 
 ton. 1275, Nos. 1, 2; and for forms of mo- seal of liis oflice, is ii<hnissil)le as evidence 
 lion paper and petition, see Vol. III. of such order or report, without further
 
 872 
 
 EVIDENCE. 
 
 C. XXII.§ 5. 
 
 Production of 
 (locunioiits in 
 tlio Court of 
 riiiiiu-ery or 
 its ollioos: 
 liDW ob- 
 tained. 
 
 Production of 
 Chancery 
 documents at 
 Law: how 
 obtained. 
 
 Proceedings 
 in Chancery; 
 how proved 
 at Law ; 
 distinction 
 between 
 criminal and 
 civil cases. 
 
 tliat the office copy of a proqcciling, wlticli one party relied upon 
 as eviilence, has not been ])roi)erly signed, tlie Court Avill allow 
 the cause to stand over tor the piirpo^^e of procuring the pro})er 
 signature.^ 
 
 No person may lake out of the office of the Clerks of Records 
 and AVrits any record or document tiled there, excejit by direction 
 of the Court.- Where any record or (|ther document, tiled or de- 
 posited in that office, is required to hi ])roduced in the Court of 
 Chancery, or in any. of its offices, a munorandum bespeaking an 
 attend tinee therewith should be left rith the Record and Writ 
 Clerk, and tlie proper fee be paid, oi arranged to be })aid ; an 
 attendance in Court with records, hotover, is made only at the 
 request of the Judge.^ 
 
 Where a i-ecord or other document, a the custody of the Record 
 and Writ Clerks, is required to be pi'^duced out of the Court of 
 Chancery or its offices, an order autliorir,iiig such production must 
 be obtained, on motion of course, or on;)etition of course at the 
 Rolls, supported by an affidavit to the efect that such production 
 is necessary as evidence ; * but, as a rle, no such order will be 
 made for production of original docuients, if certified or exam- 
 ined copies will answer the purpose.^ .o stibpcena need be issued; 
 but the officer will attend, on the ordj", and a memorandum be- 
 speaking his attendance, being left wit him, and on the office fees, 
 and his reasonable expenses (if any) bing paid.® 
 
 AVith respect to the production i' proceedings in Chancery, 
 upon trials in Common Law Courts, i may here be observed, that 
 there is a difference between crimtal and civil cases: in the 
 former, it is necessary that the oi^inal record should be pro- 
 cured ; in the latter, a copy signed >d certified by the officer to 
 whose custody the original is intrufsd,'' or proved by the person 
 putting it in to have been examiitl with the original record, is 
 
 proof. 16 & 17 Vic. c. 70, § 100; and see 
 i6. § 101 ; and 25 & 26 Vic c. 86, § 29. 
 
 1 Attornev-General v. Milward, ubi sup. 
 
 2 Orel. L 42. 
 
 3 Braithwaite's Pr. 512. A fee of 10s., 
 in fee fund stamps, is payable upon every 
 application for the officer's attendance in 
 a Court tjf Equity, and for his attendance, 
 pel- diem. Hegul. to Ord. Sched. 4. For 
 fi.rm of memorandum bespeaking the at- 
 tendance, see Vol. in. 
 
 4 Bndthwaite's l^r. 614; Gresley, 192. 
 For forms of motion paper, petition, and 
 affidavit, see Vol. III. 
 
 5 Braithwaite's Pr. 514; Attorney-Gen- 
 eral V. Kay, Bear. 335; Anon., 13 Beav. 
 420 ; Biddulph v. Lord Camoys, 19 Beav. 
 467. 
 
 6 Braithwaite's Pr. 513, 514. A fee of 
 ll. is payable on every application for the 
 officer's'attendance in Courts of La.vi,ptr 
 
 an, and for his attendance, besides his 
 
 isonable expenses. Reg. to Ord. Soiled. 
 
 i These expenses are : one guinea per 
 
 t^. and travelling expenses (first class), 
 
 the attendance is in the country; and 
 
 If a guinea [jer day, without travelling 
 
 .l)enses, if the attendance is in a Court of 
 
 aw in London or Middlesex. Braith- 
 
 aite's Pr. 513, 514. The office fees are 
 
 lid in stamps; the officer's fees are paid 
 
 I him in moni^y: ibid.; and he may re- 
 
 uire the solicitor or party desiring his 
 
 tteiidance to deposit with him a sufficient 
 
 um to cover his just fees, charges, and 
 
 xpenses, and undertake to [lay anv further 
 
 tes, &c., not full}' answered thereby. Ord. 
 
 . 43. For form of memorandum bespeak- 
 
 iig attendance, see Vol. IIL 
 
 7 14 & 15 Vic. c. 99, § 14; Reeve v. 
 lodson, 10 Hare Ap. 19 ; cmte, p. 865.
 
 DOCUMENTARY EVIDENCE WHICH PROVES ITSELF. 873 
 
 sufficient ; ^ and for this reason, an- application for production C. XXII. § 5. 
 
 of the original depositions, at the trial of a civil action, was ^ ir — ~^ 
 
 refiised.- 
 
 The documents which have been before enumerated as requiring Pe*?^^, &c., 
 
 . , , 11 • 1 • 1 thirty vears 
 
 no evidence to prove them, are all, either m a greater or less old, if brought 
 degree, public documents. Private documents which are thirty ci^"odv'^'^'^ 
 years old from the time of their date, also prove themselves.^ 
 This rule aj^plies, generally, to deeds concerning lands, and to 
 bonds, receipts, letters, and all other writings: the execution of 
 which- need not be proved, provided they have been so acted upon, 
 or brought from such a place, as to afford a reasonable presump- 
 tion that they were honestly and fairly obtained and preserved for 
 use, and are free from suspicion of dishonegty.* Lord Chief Baron 
 Gilbert, however, upon this point, says, that " if possession hath 
 not gone along with a deed, some account ought to be given of 
 the deed ; because the presumption fails where there is no posses- 
 sion ; " ^ and he adds a caution, that " if there is any blemish in an 
 ancient deed, it ought to be regularly proved ; or where it imports 
 a fraud : as, where a man conveys a reversion to one, and after- 
 wards conveys it to another." ^ 
 
 The rule of comjniting the thirty years from the date of a deed, K»1p applica- 
 is equally ap})licable to a will.'^ Some doubt appears formerly ' 
 
 to have been entertained on this point, on the ground that deeds 
 take effect from their execution, but wills from the death of the 
 testator,* In Mandiff v. Parkins^^ Lord Eldon observes, that, 
 in a Court of Law, " a will thirty years old, if the possession has 
 gone under it, and sometimes without the possession, but always 
 with possession, if the signing is sufficiently recorded, proves 
 itself But if the signing is not sufficiently recorded, it would 
 be a question whether the age proves its validity ; and then, 
 possession under the will, and claiming and dealing with the 
 
 ^ 2 Phil, on I^vid. 208, 209; Taylor, §§21,570: Jackson v. Blanshan, 3 John. 
 
 §§ 1379,1382-1384. 292; Winn v. Patterson, 9 Peters, 674, 
 
 2 Attorney-General v- Ray, 6 Beav. 335; 675; Bennet v. Runyoii, 4 Dana, 422, 424; 
 
 see 3 Hare, 335. Cook v. Torton, 6 Dana, 110; Thurston v. 
 
 8 2 Pliil. on Evid. 245; Taylor, §§ 74, Masterton, 9 Dana, 233; Hinde v. Viittier, 
 
 75. 1 M'Lean, 115; Northop v. Wright. 24 
 
 ♦ 2 Phil, on Evid. 246; Taylor, § 75; Wend. 221; 1 Phil. Ev. (Cowen & Hill's 
 
 Bee also, as to letters, Fenwick v- Reed, 6 ed. 1839) 478. 
 
 Mad. 7, 8; Attornev-General v. Steithens, 6 Gilb. on Evid. 89; and see Tavlor, 
 
 6De G., M. & G. I'll; 2 Jur. N. S. 51. §74; 1 Phil. Ev. (Cowen & Hill's ed. 1839) 
 
 6 Gilb. on Evid. f-O; and K-e Taylor, 478, note 90G, in 3 //>. 1317, 1318; 1 Greenl. 
 
 §§ 74, 599, GOO; (Jreslev Eq. Ev. (Am. ed.) Ev. § 21, 570; Gresley Eq. Ev. (Am. ed.) 
 
 124, 125; 1 Phil. Ev. (Cowen & Hill's ed. 124, 125. 
 
 1839) 477, note 903, in 2 ib. 1310 tt ieq., 7 Man v. Ricketts, 7 Beav. 93, 101; 
 
 and ca«es cited; 1 Greenl. Ev. §§ 21, 570, Orange v. Pickford, 4 Jar. N. S. 649, V. 
 
 and cases cited; .\rKenire v. Eraser, 9 C. K.; Doe v. Biirdett, 4 Ad. &E1. 1; Doe 
 
 Sumner's Ves. 5, note {<i). It is not nee- v. Wolley, 8 B. & (,'. 22. 
 
 es^ary to call the subscriljing witn(•^•ses, » 2 Phil, on ]'>vid. 246; M'Kcuire v. 
 
 though thev be living. .Inckson v. Christ- Fraser, 9 Ves. 6. 
 
 man, 4 We'nd. 277, 282, 283; Fetherlv v. « 6 bow, 202. 
 Waggoner, 11 Weud. 603; 1 GreeuJ. Ev.
 
 874 
 
 EVIDENCE. 
 
 but not to 
 souls of 
 corporations, 
 SiDible. 
 
 C. XXII. § c. pvojHM-ty as if it had passed under (lio will, would be coo-ont 
 o\ idouoe to })rove llio due signing of the will, though it should 
 not be recorded." • 
 
 It appears to be doubted, whether the seal of a Court or corpo- 
 ration is within the rule as to thirty years; and in Hex v. 17i,e 
 hihahitioitx of Jiartliiru'l\- Lord Tenti'rden said, " that it might 
 be argued that it was not within the principle of the rule: because, 
 although the "witnesses to a private deed, or persons acquainted 
 with a ]irivate seal, may be sup]>osed to be dead, or not capable of 
 l)eing accounted for, after such a lapse of time, yet the seals of 
 Courts and of corporations, being of a permanent character, may 
 be proved by persons at any distance of time from the date of the 
 instrument to Avhich they are affixed." ^ 
 
 Sectioj" VI. — Documentary Evidence lohich does not prove itself. 
 
 Proof of doc- 
 uments, gen- 
 erally the 
 same as at 
 Law. 
 
 Eules in 
 Eijuity with 
 res])ect to 
 wills of real 
 estate : 
 
 Having ])ointed out the species of documentary proofs which 
 may be used in Courts of Equity, without the aid of any other 
 e\ddence to authenticate them, or which, in other words, " prove 
 themselves :" the next subject for consideration is the nature of 
 the proofs requisite, to enable a party to make use of documents 
 which do not come under the same description. The rules upon 
 this subject are, in general, the same in Equity as at Common Law; 
 and will be fovmd more fully set forth in any Treatise upon the Law 
 of Evidence,* 
 
 With respect to the cases in which diffi^rent rules prevail in 
 Courts of Equity, from those Avhich are adopted at Law, the most 
 important are those of wills devising real estates.^ At Law, it is 
 sufficient to examine one witness to prove a will, if he can prove 
 
 1 1 Phil. Ev. (Cowen& Hill's ed. 1839) 
 603 ; 1 Greenl. Ev. § 21, and cases in notes, 
 § 570, and note; Jackson v. Blanshan, 3 
 John. 3<J2; Doe v. Deakin, 3 U. & P. 402; 
 Doe V. WoUev, 8 B. & C. 22. 
 
 2 2 B. & Ad. 648. 
 
 8 2 Phil, on Evid. 247; Taylor, § 74; 1 
 Greenl. Ev. § 570. 
 
 4 2 Phil, on Evid. 242 et seq. ; Tavlor, 
 §§ 1368-1472, 1660-1679; Best, §§ 245- 
 250; Gresley, 173 et seq. 
 
 5 The Courts of Probate in Massachu- 
 setts liave complete jurisdiction over the 
 probate of wills, of both real and personal 
 estate, and their decrees are conclusive 
 upon all parties, and notre-examinable in 
 any other Court. Tompkins v. Tompkins, 
 1 Story, 547; see Osgood v. Breed, 12 
 Mass. 525, 533, 534; Laughton v. Atkins, 
 1 Pick. 535, 547, 548, 549. So in Connect 
 icut. Bush V. Sheldon, 1 Day, 170; 
 
 Brown v. Lannan, 1 Conn. 476. So in 
 Rhode Island. Tompkins v. Tompkins, 1 
 Story, 547. So in New Hampshire. Pop- 
 lin V. Hawke, 8 N. H. 124. So in Ohio. 
 Bailey v. Bailey, 8 Ohio, 239. See as to 
 Kentuck}', Robertson v. Barbour, 6 Monr. 
 527; Case of Wells's Will, 5 Litt. 273. In 
 North Carolina, »&\i\iohe, prima facie evi- 
 dence. Stanley v. Kean, Taylor, 73. Illi- 
 nois, see Itobortson v. Barbour, 6 Monr. 
 527, 528. Alabama, see Tarver v. Tarver, 
 9 Peters, 174. It is not necessary' in Vir- 
 ginia that a will should be proved in a 
 Court of Probate in order to give it valid- 
 ity as a will at Law. Bogwell v. Elliot, 2 
 Kand. 196. As to New York, see Dubois 
 V. Dubois, 6 Cowen, 494; 2 Rev. St. 57, 
 § 7, ih. 58, § 15; see further on this sub- 
 ject, 1 .larman on Wills (Perkins's ed.), 
 23, note (2), and cases cited.
 
 DOCUMENTARY EVIDENCE WHICH DOES NOT PROVE ITSELF. 
 
 875 
 
 the due execution of it, unless it is impeached ; ^ but, in Equity, in 
 order to establish the will against the heir, all the witnesses must 
 be examined.- 
 
 This rule, although general, admits of necessary exceptions, and 
 perhaps does not apply where the will is not wholly, but only 
 partially, in question,^ The rule also does not apply, in cases 
 where one of the witnesses is dead, or is abroad : ^ in which cases, 
 proof of his hand^vTiting has been held sufficient.^ It seems, how- 
 ever, that in such a case, the more regular course is not to declare 
 the will proved, but to enter the evidence of the witnesses as read, 
 and then to direct the trusts of the ^vill to be carried into execu- 
 tion." Where a witness has become insane,'^ or has not been heard 
 of for many years, and cannot be found, his evidence has been 
 dispensed with.* It is also necessary, in Equity, where the object 
 of the suit is to establish a will against the heir, to prove the 
 sanity of the testator.^ 
 
 We have seen before,^° that in some cases, where the proof of a 
 will is defective, leave will be given to supply the defect at the 
 hearing;" and we have also seen, that it is the common practice 
 of the Court to carry the trusts of a will into execution, without 
 declaring the will well proved.^^ Where the heir admits the will, 
 
 C. XXII. §6. 
 
 where suit is 
 to establish 
 it; 
 exceptions. 
 
 Proof of 
 sanity. 
 
 Course, 
 where proof 
 is defective. 
 
 Admission of 
 will by heir. 
 
 1 Seton, 227, citing Peake's Evid. 
 401; 2 Greenl. Ev. § 694; Jackson v. La 
 Grange, 19 John. 386; Dan v. Brown, 4 
 Cowen, 483; Jackson v. Betts, 6 Cowen, 
 377; Turnipseed v. Hawkins, 1 M'Cord, 
 272. In Pennsylvania, two witnesses are 
 required in proof of every testa mentary 
 writing, whether in the general probate, 
 before the Register of Wills, or upon the 
 trial of an issue at Common Law ; and each 
 witness must sepMrately depose to all the 
 facts necessarv to complete the chain of 
 evidence, so that no link may depend upon 
 the crediliilitv of but one. Lewis v. Maris, 
 1 Dall. 27H; Hock v. Hock, 4 Serg. & K. 
 47. And if there are three witnesses, and 
 the proof is fully made by two only, it is 
 enough without calling the third. Jackson 
 V. Vandyke, 1 Cox, 28; Fox v. Evans, 3 
 Teates, 506. Hut if one or both witnesses 
 are dead, the will may be proved by the 
 usual secondary evidence. Miller v. 
 Caruthers, 1 Serg. & li. 20.0. 
 
 2 Bootic V. iJlundell, 19 Ves. 505; G. 
 Coop. 136, 137; see also Ogle y. Cook, 1 
 Ves. S. 177; Townshend v. Ives, 1 Wiis. 
 216; Bullen v. Michel, 2 Pri. 491; 2 
 Greenl. Ev. § 694, and note. Any person 
 interested in the estate of the testator, nniy 
 insist upon tlie production of all the sub- 
 scribing witnesses to a will, at the [irobate 
 thereof, if they are living, and subject to 
 the process of the C'lurt. Chase v. Lin- 
 coln, 3 Muss. 236. If it be impossible to 
 procure any one of the witnesses, or he 
 iiMB become incompetent, the Court will 
 proceed without him ex necessitate rei, and 
 
 resort to the next best evidence of which 
 the case will admit. Ibid. ; Sears v. Bel- 
 lingham, 12 Mass. 358; Brown v. Wood, 
 17 Mass. 68; see Swift v. Wiley, 1 B. 
 Monr. 116; Brown v. Chambers, Ha3'es, 
 tlxch. 597; Powell v. Cleaver, 2 Bro. 
 C. C. (Perkins's ed.) 504, note {fi); Lord 
 Carrintrton v. Payne, 5 Sumner's Ves. 404, 
 Perkins's note (a), and cases cited. 
 
 '■^ Per Lord Eldon, in Bootle v. Blundell, 
 ubi sup. 
 
 4 Jbid. 
 
 6 Lord Carrington v. Payne, 5 Ves. 404, 
 411; see also Billing v. Brooksbank, cited 
 19 Ves. 505 ; Fitzherbert v. Fitzlierbert 4 
 Bro. C. C. 231 ; and (irayson v. Atkinson, 
 2 Ves. S. 454, where it was held, that a 
 commission should have been sent to 
 examine the witness abroad; but the 
 rule in Lord Carrington v. Payne seems to 
 be the one now acted upon. Seton, 227. 
 
 Hare v. Hare, 5 Beav. 529, 630; 7 Jur. 
 336. 
 
 ' Bernett v. Taylor, 9 Ves. 381. 
 
 8 James v. Pariiell, T. & R. 417; M'Ken- 
 irc V. Fraser, 9 Ves. 5. 
 
 9 Harris v. Ingledew, 3 P. Wms. 93; 
 Wallis V. Ilodgeson, 2 Atk. 56; Seton, 
 228. 
 
 1" Ante, p. 858. 
 
 11 Chichester?;. Chichester, 24 Beav. 289. 
 where the will was allowed to be proved 
 viva voce at the hearing; sec, however, Se- 
 ton, 228, and Smith v. Blackmail, ante, 
 p. 794, n. (»•)• 
 
 '•^ See imte, p. 232; Ord. Yll. 1; Seton, 
 228; Biiificld v. Liinibert, 1 Dick. 337;
 
 876 
 
 EVIDENCE. 
 
 C. XXII. § 0. 
 
 Will niado 
 ami proved in 
 the colonies. 
 
 AViierc suit 
 i.-i not to 
 ebtubllsh will. 
 
 Right of heir 
 to an issue. 
 
 Court has 
 now power, 
 and, semble, 
 is bound, to 
 determine 
 itself the 
 validity of 
 will. 
 
 Wills of copy- 
 hold estates. 
 
 tlio Court will establish it, without declaring it well proved ;^ but 
 the adniission of a will iu the se})arate answer of a married wo- 
 man, who was the heiress-at-law, has been held insufficient to 
 enable the Court to declare the will established.^ 
 
 The Coiu't of Cliancery will establish a will made and proved in 
 the colonies, on the production of a duly authenticated copy of it : 
 })rovided the due execution and attestation of the original are 
 ]>i'oved by the attesting witnesses.^ 
 
 The rule that, where a will is to be established against an heir, 
 it must be i)rt)ved by all the witnesses, or by producing evidence 
 of their death and handwriting, does not apply when proof of the 
 will is required for other purposes : in such cases, one witness to 
 prove it is sufficient.* 
 
 The rule, that all the witnesses must be examined, extends also 
 to the trial of an issue devisamt vel non before a jury.^ In 
 Tatham v. 'Wright^ however, where the bill was not filed by the 
 devisee to establish the will, but by the heir to set it aside, the 
 defendant called one tvitness, and produced the other two, offering 
 them to the plaintiff to call and examine them, which he declined, 
 not wishing to make them his own witnesses : upon a motion for a 
 new trial, the cause was held to have been sufficiently tried.' 
 
 Formerly, whenever the heir-at-law was a party to the suit, he 
 was entitled, as a general rule, to an issue devisavit vel non ; ^ but 
 under the present practice, the Court of Chancery has power,^ and 
 it would seem is bound,^*^ to determine the question itself, either 
 with or without a jury, as it may think fit : ^^ though it may direct 
 the question to be tried at the assizes, or at a sitting in London or 
 Middlesex, where it apjDears to the Court that the question may be 
 more conveniently so triecl.^^ 
 
 With respect to wills of copyhold estates, it seems that it is not 
 the practice to establish them against the heir-at-law ; but what 
 
 Bird V. Butler, ib. n. ; Fitzherbert v. Fitz- 
 herbert, 4 Bro C. C. 231 ; Wood v. Stane, 
 8 Pri. 613; Bo3'se v. Rossborough, Kav, 
 71; 3 DeG,M. & G. 817; 18 Jur, 205; 
 S. C nom. Colclough v. Boyse, 6 II. L. Ca. 
 1; 3Jur. N. S. 373. 
 
 1 Seton, 228. For form of decree in 
 case, see ib. 224, No. 2. 
 
 2 IJrown V. Hayward, 1 Hiire,432; ante, 
 pp. 184, 185. 
 
 8 Hand v. Macmahon, 12 Sim. 553; 6 
 Jur. 450. 
 
 * Concannon v. Cruise, 2 Moll. 332. 
 
 5 I'emberton v. Peinberton, 11 Yes. 53; 
 Bootle V. Blundell, 19 Ves. 505 ; G. Coop. 
 137. 
 
 6 2 R. & M. 1, 17. 
 
 7 Greslev f:q. Ev. (Am. ed.) 123,124; 
 2 Greenl. Ev. § G93. 
 
 8 Seei>os<, Chap. XXVII. § 1, Trials of 
 
 Questions of Fact ; and see Man v. Ricketts, 
 7 Beav. 93, 102; 8 Jur. 159; S. C. nom. 
 Ricketts v. Turquand, 1 H. L. Ga. 472. 
 
 '•> 21 & 22 Vic. c. 27, §§ 3, 4; and see 
 Oni. XLI. 26, 52; and post, Chap. XX VII. 
 § 1, Trials of Questions of Fact. 
 I W 25 & 26 Vic. c. 42, § 1; post. Chap. 
 XXVII. § 1, Trials of Questions of Fact ; 
 Bavlis V. Watkins, 8 Jur. N. S. 1165, 
 L. JJ.; Esmoiit v. Darell, 1 H & M. 563; 
 Eaden v. Firth, ib. 573; Young v. Fernie, 
 1 De G., J. & Sm. 353; 10 Jur. N. S. 58; Re 
 Ciitliolic Publishing Companv, 10 Jur. N. 
 S. 192, 51. K.; Williams W.Williams, 12 
 W. R 140 M. R.; 33 Beav. 306; and see 
 Curie wis v. Cniter, 9 Jur. N. S. 1148; 12 
 W. R. 97, V. C. S. 
 
 " 21 & 22 Vic. c. 27, § 5 ; and 25 & 26 
 Vic. c. 42, § 3 
 
 12 25 & 26 Vic. 42, § 2.
 
 DOCUMENTARY EVIDENCE WHICH DOES NOT PEOYE ITSELF. 
 
 877 
 
 will be a sufficient proof to induce the Court to act upon them, when 
 their validity is not admitted by the heir-at-law, does not seem 
 quite clear.' 
 
 The Ecclesiastical Courts had no jurisdiction to determine the 
 validity of wills of real estate; and the production of probate was, 
 therefore, no evidence of the vaUdity of the will as to real estate.^ 
 But the Court of Probate has such jurisdiction conferred upon 
 it ; ^ and when probate of a wUl, not confined to personalty, has 
 been granted in solemn fonn, the probate is conclusive evidence, 
 in all Courts, of the validity of the will as to real, as well as to 
 personal estate.* And when the will is not proved in solemn 
 form, if ten days' notice of the intention to read the probate of 
 the will, or copy thereof, stamped with any seal of the Court of 
 Probate,^ as evidence, is given, it will be conclusive evidence 
 against the person to whom notice is given : unless such per- 
 son, within four days after receiving such notice, gives notice 
 that he disputes the validity of the devise.® The consequence 
 of the above-mentioned alterations in the law is, that the practice 
 of estabUshing a will in Chancery is of comparatively rare oc- 
 currence. 
 
 "Where an original will is required to be produced in the Court 
 of Chancery, the attendance with it of the proper officer, in whose 
 custody it is deposited,'' may be procm-ed, as in the other cases 
 where the production of an original record, or instrument m the 
 nature of a record, is required. Formerly, however, the practice 
 was for the Court to make an order upon the officer of the Eccle- 
 siastical Court to deliver the original will to the solicitor in the 
 cause, upon his giving security (to be approved by the Judge of 
 that Court) to return it safe and undefaced within a particular 
 
 C. XXII. § r,. 
 
 Court of 
 Probate can 
 determine 
 validitj- of 
 ■will of realty. 
 
 Effect of pro- 
 bate in sol- 
 emn form, as 
 to realty. 
 
 EflFect of 
 notice in 
 other cases, 
 of intention 
 to read. 
 
 Establishing 
 will in 
 Chancery is 
 now rare. 
 
 Production of 
 original will: 
 how obtained. 
 
 1 Archer v. Skter, 10 Sim. 624; 11 Sim. 
 607; Jervoise r. Duke of Northumberland, 
 1 J. & VV. 570. 
 
 2 Taylor on Evid. 1.565, A. 
 
 8 20 & 21 Vic. c. 77, §§ 61-65; Dodd & 
 Bro'ike, 595, 641; see also 21 & 22 V'lc. 
 0. 95. As to wills of personal estate, the 
 Court of Chancery has l(joked at the orig- 
 inal, for the purp ise of determining the 
 con^itruction, in i'hilhp-! v. Chambeilaine, 
 4 V'es. 57; (Jomjiton v. Bloxham, 2 Coll. 
 201, 204; Upptiiheim v. Martin, 9 Hare, 
 802, n.; Manning r. Pursell,7 De G., Si.Sc 
 G. 55; see, h'.wever, Gann v. Gregory, 3 
 De G., M. & <i. 777, 780; IS .lur. 1063. 
 
 * 20 & 21 Vic. c. 77, § 62. As to the ad- 
 vantage of proving a will in solemn form, 
 see Dod'l & Hruoke, 641, n. («); and for 
 the practice, ib. 641-652. 
 
 * The stamp is only required for the 
 copy. Hippon v. Prie^'t, 3 F. & F. 644. 
 
 620 & 21 Vic. c. 77, § 64; see Danbv i'. 
 Poole, 10 W. It. 515, V. C. S.; 15. mi- 
 ciuugli V. Grecnaugh, 1 W. N. 319; 16 
 
 \V. R. 21, Q. B. OiEce copies of wills are 
 not collated with the original, unless spe- 
 cially required; every copy so required to 
 be examined will be ceriilied under the 
 hand of one of the principal Kcgi.-triirs lo 
 be an examined copy; and the se:d of the 
 Court is not to be affixed to an office copy 
 unless the same has been so certified. 
 Court of Probate Hules, 30 July, 1862, 
 rr. bO, 81 ; Dodd & Brooke, 1U76. An 
 office copy not so certitied and sealed is 
 not, therefore, usually received in evi- 
 dence. An extra fee of 7s. 6(/. is cluirged 
 lor a certilied office copy; and see 20 & 21 
 Vic. c. 77, § 69. F'or forms of notice, 
 under section 64, see Vol. III. 
 
 ■? A suhpamn duces tecum will be issued 
 for this purpose. Wigan r. Howland, 10 
 Hure Ap. 18, 19; 17 .Jur. 816. For the 
 fees paj'able to the officer of the Court ot 
 I'robate attending with the will, see Oiurt 
 of Probate liules, 30 .July, 1862; Dodd & 
 Brooke, 1151, 1230; 8 Jur. N. S. Pt. 2, 
 392, 397.
 
 878 
 
 EVIDENCE. 
 
 C.XXll.§ I!. 
 
 AVIien the 
 orij;iiial 
 cnniiot bo 
 obtained : 
 
 Proof of 
 execution. 
 
 Secondary 
 evidence of 
 contents. 
 
 Secondary 
 evidence of 
 written docu- 
 ments : 
 
 Practice at 
 Law ; 
 
 Notice to 
 produce. 
 
 timo.^ In Fauquier v. Ti/nte," Loi\l Eldon seemed at n loss 
 to aei'ount for this Joviation Iroiu the onliuary course, whidi lie 
 thought might be ino])erativc if the officer of the Ecclesiastical 
 Court refused to obey the order; and he declined to extend it to 
 any other case than that of a will. 
 
 There are several eases in Avhieh a Court of Equity h.as estab- 
 lished a will, without the production of the original, where the 
 fact of the will having been proved and retained abroad, or other 
 circumstances,^ have rendered it im])ossible to bring the original 
 before the Court ;* but it seems that, in such cases, strict proof of 
 the execution and attestation must be given, unless they are 
 admitted, or unless the will is old enough to prove itself^ The 
 contents of the will must be proved to the satisfaction of the 
 Court ;^ and, in the absence of the original, there are various 
 means of secondary evidence applicable for this purpose. In 
 Pullan V. Hmolins^ sufficient secondary evidence was given, by 
 means of a copy admitted to probate in this country, certified by 
 the Registrar of the place where the original was deposited. 
 
 Secondary evidence of the contents of written documents is 
 admitted, both at Law and in Equity, when the party has not the 
 means of producing them, because they are either lost or destroyed, 
 or in the jjossession or power of the adverse j)arty. At Law, 
 where it is not known till the time of trial what evidence will be 
 offisred on either side, a party, in order to entitle himself to give 
 secondary evidence of the contents of a written document, on the 
 ground of its being in the j^ossession of his adversary, ought to 
 give him notice to produce it : for otherwise, non constat that the 
 best evidence might not be had.^ But even at Law, when, from 
 the nature of the proceeding, the j^arty must know that the con- 
 tents of a Avritten instrument in his possession will come into 
 question, it is not necessary to give any notice for its production ; 
 and, therefore, in an action of trover for a deed,^ or upon an in- 
 dictment for stealing a bill of exchange,^'' it has been held, that, 
 without previous notice, parol evidence may be given of the 
 
 1 Morse v. Roach, 2 Strange, 961; 1 
 Diclc. 65 ; Frederick v. Aynscombe, 1 Atli. 
 627; Peirce ». Watliin, 2 iJick. 485; Lake 
 f. Oaustield, 3 Bro. C C. 263 ; Forder v. 
 
 Wade, 4 Bro. C. C. 476; llodson v. , 
 
 6 Ves. 135; Ford v. , ib. 802; see 
 
 also Setoii, 226; and for forms of orders, 
 see 2 Van Hey. 361, 362. 
 
 2 7 Ves. 292; and see 6 Ves. 135; ib. 
 802. 
 
 3 Ellis V. Medlieott, cited 4 Beav. 144. 
 
 4 A codicil destroyed without the testa- 
 tor's consent was established in Clark v. 
 Wright, 3 Pick. 67 (2d ed.), 69, note (1), 
 and cases cited. 
 
 6 Rand v. Macmahon, 12 Sim. 553, 556; 
 6 Jur. 450. 
 
 6 Ihe evidence of the entire contents of 
 the will must, in such cases, be most clear 
 and satisl'actory. Davis v. Sigourney, 8 
 Met. 487; Durfee v. Durfee, 8 Met. 4'JO, 
 note; Huble v. Chirk, 1 Hagg. F2ccl. 116. 
 
 " 4 Beav. 142, where the cases are col- 
 lected. 
 
 8 1 Phil. Ev. (Cowen & Hill's ed. 1839) 
 439 et stq. ; 3 ib. 1182, note, 834, and 
 cases cited ; 1 Grccnl. Ev. § 560. 
 
 9 How V. Hall, 14 East, 274. 
 1" Aickles's case, 1 Leach, 294.
 
 DOCUMENTARY EVIDENCE WHICH DOES NOT PROVE ITSELF. 
 
 879 
 
 contents of the instrument which is the foundation of the pro- 
 ceeding.^ 
 
 The same exception to the general ride appears to be equally 
 applicable in Courts of Equity : for there it is lield, that when, 
 either fi-om the pleadings or depositions, a j^arty is apprised that 
 it is the intention of the opposite party to make use of secondary 
 evidence of the contents of a document in his possession, such 
 secondary e^ndence may be used at the hearing, without serving 
 the party in whose possession it is with notice to produce it.^ 
 This point was much considered by Sir WilUam Grant M. R. in 
 Wood V. StricJcland^^ where a witness, who had been examined on 
 the part of the defendant, deposed to the contents of a certain 
 letter which had been written by the plaintiff to the witness, 
 which the A\'itness stated that he had himself siibsequently re- 
 turned to the plaintiif, who immediately thi*ew it into the fire and 
 destroyed it. At the hearing, an objection was taken, on the part 
 of the plaintiff, to the admissibility of this evidence, on the ground 
 that there was no proof of the letter being lost or destroyed, nor 
 of any notice given to the plaintiff to produce it; but the objection 
 was overruled by the Master of the Rolls, on the ground that the 
 plaintiff must have seen, by the depositions, that the evidence 
 of the case, set up as a defence to the bill, consisted of certain 
 written communications which had taken place on the subject of 
 the suit, ^nd that it was impossible, therefore, that he could have 
 been taken by surprise, or could not be prepared to produce any 
 letter that might be in his possession. It is right, however, to state, 
 that, in Hawkesworth v. Dexosnap^^ Sir Lancelot Shadwell V. C. 
 came to a decision which was contrary to that in Wood v. StricJc- 
 land ; ^ and that, in Stidz\. /Stulz,^ he referred with apjjrobation 
 to his own decision in IlaxKhesworth v. Dewsnap : though he ex- 
 pressed himself willing to have the i)oint again argued, in order 
 that the practice might be settled. The jioint, however, was not 
 argued, the objection having been Avaived. 
 
 It may be mentioned, Avith reference to this subject, that, in 
 Parkhurst v. Lowten^ Lord Eldon apj^ears to have thought, 
 that when a defendant admitted a deed to be in his possession, 
 but declined to produce it, on the ground that it might convict 
 him of simony, or any other criminal offence, secondary evidence 
 of its contents might be received. 
 
 Where written documents are not admitted, and do not prove 
 
 1 Sec Taylor on Kvid. §§ 379,379; 1 
 Greenl. Kq. § 5G1. 
 
 '^ See Gresley Kq. Ev. (Am. ed.) 118. 
 
 8 2 .Mer. 461,405; and seeLyiie r. Lock- 
 woo:!, 'i. Moll. Vl\\ Davison u. Kobinson, 
 e W. U. 073, L. C. 
 
 < Cited 5 Sim. 460. 
 6 2 Mer. 461. 
 
 6 5 Sim. 460. 
 
 7 2 Swanst. 213. 
 
 C. XXII. § 6. 
 
 Practice in 
 Equity, where 
 party is 
 apprised of 
 the intention 
 to prove the 
 contents. 
 
 Production of 
 document, 
 where it may 
 convict the 
 party of a 
 crime. 
 
 In what man- 
 ner written 
 doeuuK'nts 
 are proved.
 
 880 
 
 EVIDENCE. 
 
 C. XXII. § 6. 
 
 Pmof of 
 execution by 
 attostiiig wit- 
 ness, IU>t lU'C- 
 cssjirv whore 
 nt testation 
 unnecessary ; 
 except on 
 tx parte 
 applications. 
 
 Notice to 
 admit under 
 21 & 22 Vic. 
 c. 27. 
 
 Objections 
 for want of 
 stamp. 
 
 themselves, they must be ])rc)vetl hy the same evidence as at 
 Law : ^ tlte evidenee, however, being taken aceording to the prac- 
 tiet' ol" tlie Court of Chancery. 
 
 ^Vlu'^e an instrument, to the varulity of a\ hicli attestation is not 
 requisite, has been attested, such instnimciit may be proved by 
 admission, or otlierwise, as if tliere had been no attesting witness 
 thereto;- an«l it is not requisite to prove it by the attesting wit- 
 ness, except in tlie case of ex parte applications : on which the 
 evidence of the attesting witness will still be required,^ \inless it 
 can be shown that there is a diiticidty in procui-ing it.* 
 
 To avoiil unnecessary expense in the proof of documents, it has 
 been enacted that, where all parties to a suit are competent to 
 iiiake admissions, any party may call on any other party, by notice, 
 to admit any document saving all just exceptions ; and that, in 
 case of refusal or neglect to admit, the cost of proving the docu- 
 ment shall be paid by the party so neglecting or refusing, whatever 
 the result of the cause may be : unless the Court shall certify that 
 the refusal to admit was reasonable ; and that no costs of proving 
 any document shall be allowed, unless such notice be given : ex- 
 cept in cases where the omission to give the notice is, in the 
 opinion of the Taxing Master, a saving of expense.^ 
 
 Any document requiring to be stamped will not be received in 
 evidence, until it has been stamped,® except for a collateral pur- 
 pose ; '' and upon the production of any document (except such 
 as cannot be stamped after execution, on payment of the duty and a 
 penalty,* as evidence at the trial of any cause, it is the duty of the 
 officer of the Court, whose duty it is to read such document, to 
 call the attention of the Judge to any omission or insufficiency of 
 the stamp ; and the document, if unstamped, or not sufficiently 
 stamped, will not be received in evidence until the Avhole, or the 
 deticiency of the stamp duty, and the penalty required by statute, 
 together with the additional penalty of one pound, has been paid ; 
 and thereupon such document is admissible in evidence, saving all 
 
 i See ante, p. 874, and note; 1 Greenl. 
 Ev. § 5b9 et seq. and note; Gresley Eq. Ev. 
 (Am.ed.) ll.'<, 119 et seq. 
 
 !2 17 & 18 Vic. c. 125, § 26; see Homer 
 V. Wallis, 11 iMa's. 309. 
 
 3 Jie Keav, 1 Jur. N. S. 222; 3 W. R. 
 312, V. C. "K.; Pedder v. Pedder, cited 
 Setoii, 16. 
 
 4 Jie Dierdon, 10. Jur. N. S. 673; 12 W. 
 R. 978, V. C. W.; Jearriird v. Tracv, 11 
 W. R 97, V. C. K. In lie Hall, 9 W. R. 
 776, V. C. K., where no .solemnities were 
 requireil fur tlie execution of a power, a 
 fund wa.s directed to be piiid out of Court, 
 without the evidence of the attesting wit- 
 ness ; and see Taylor, § 1640. 
 
 6 Arrte, p. 849; 21 & 22 Vic. C. 27, § 7; 
 Ord. XLl. 39, and Sched. N. No. 6; Tay- 
 
 lor, § 707 A. Section 7 is, in terms, gen- 
 erjtllj' applicable, and has been so acted 
 upon; &eton,21; it is franit-d on the Com- 
 mon Law Proceduje Act, 1852 (15 & 16 
 Vic. c. 76), § 117; and .see Coinmun L;iw 
 Rules of H. T. 1853, r. 30; 17 Jur. Pt. 2, 
 9; Taylor, § 703. For the ciises at Law 
 on the construction to be put <jn § 117, 
 and the practice thereunder, see Taylor on 
 Evid. §§ 7U4-707; Chitty's Arch. 319-323; 
 Chitty's Forms, 140-145. For forms of 
 notice, admission thereunder, and affidavit 
 of service, see Vol. III. 
 
 G Smith V. Henlej', 1 Phil. 391,396; 8 
 Jur. 434. 
 
 "! Hhiir V. Bromley, 11 Jur. 617, L. C, 
 and cases there cited. 
 
 8 See Selon, 16.
 
 PROVING EXHIBITS AT THE HEARING, UNDER AN ORDER. 
 
 881 
 
 just exceptions on other grounds.^ Xo new trial will be granted C. xxii. 
 by reason of the ruling of any Judge that the stamp upon any 
 document is sufficient, or that the document does not require a 
 stamp.- 
 
 Section VII. — Proving Exhibits at the Hearing^ under an Order. 
 
 "Written documents, essential to the justice of the cause, may 
 in certain cases be proved at the hearing as exhibits, viva voce, or 
 by affidavit.^ This course may be adopted, where the cause is 
 heard on bill and answer,^ or where the documents have not been 
 proved before the evidence in the cause is closed. 
 
 Amongst the documents which may be thus proved, may be 
 classed : " all ancient records of endowments and institutions, 
 whether they are oiFered to be proved as original instruments, or 
 as they are found collected and recorded in register books of great 
 antiquity, deposited in the registries of the archbishops and bishops, 
 
 Proving 
 exhibits at 
 the heariiiff. 
 
 What ex- 
 hibits may 
 be proved, 
 viva voce, 
 and by 
 affidavit: 
 
 1 The Stamp Act, 1870 (33 & 34 Vic. c. 
 97j, § 16, on and after 1 Jan. 1871. The 
 17 & 18 Vic. c. 125, §§ 28, 29, is repealed 
 on and from that date, hy 33 & 34 Vic. c. 
 99. It seems there is no officer of the 
 Court, strictly answering the description 
 in § 16; the Registrar clearly does not. 
 Seton, 16. The practice in the Court of 
 Chancery is to direct the cause to stand 
 over, or to allow it to proceed on the 
 undertaking of the solicitor to procure 
 the document to be properly stamped ; see 
 Seton, 16; and see nnte, pp. 848, 849; 
 Owen V. Thomas, 3 M. & K. 353 ; Coles 
 V. Trecothick, 9 Ves., 234,239; Carring- 
 ton V. Pell, 2 De G. & S. 512 ; Browne v. 
 Savage, 5 Jur. N. S. 1020, V. C. K.; see 
 also Nixon v. Albion ^Marine Insurance 
 Company, L. K. 2 Exch. 338. Receipts 
 for payments not duly stamped, and 
 which could not be stamped either with 
 or without a penalt}', were received in 
 evidence by consent, in Orange v. Pick- 
 ford, and Thompson v. Webster, cited 
 Seton, 16. 
 
 2 17 & 18 Vic. c. 125, § 31. In Carpen- 
 ter ». Snelling, 07 Mass. 452, it was held 
 that the provision of the United States 
 Sts. 1860, c. 184, § 9, that no instrument 
 or document not duly stamped, as required 
 by the internal revenue laws of the I nited 
 Slates, shall be admitted or used as evi- 
 dence in any Court until the requisite 
 stamps shall have been afiixcd thereto, 
 applies only to the (Jourts of the United 
 States. IJigelow C.J. in this case said: 
 " We entertain grave doubts whether it is 
 within the constitutional authority of Con- 
 gress to enact rules regulating the com- 
 petency of evidence on the trial of cases 
 in the Courts of the several States which 
 shall be obligatory ujioii them." See also 
 Lynch v. Morse, 07 JIass. 458 in note; 
 Disbrow r. .Johnxon, 3 (J. E. (Jreen (N. .1.), 
 36; Davy v. Morgan, 56 Barb. (N. Y.) 
 218. 
 
 8 The practice of proving such docu- 
 ments by affidavit was introduced by the 
 
 VOL. I. 
 
 43d Order of August, 1841; Sand. Ord. 
 886; 3 Beav. xxv., which directed that, 
 " In cases in which any exhibit may, bj' 
 the present practice of the Court, be 
 proved viva voce at the hearing of a cause, 
 the same may be proved by tlie affidavit 
 of the witness who would be competent to 
 prove the same viva voce at the hearing." 
 This order is not included in the Consol- 
 idated Orders; but the Prel. Ord. r. 5, 
 which preserves any established practice 
 originated in, or sanctioned by, the Orders 
 therebj- abrogated, ■would, it is conceived, 
 authorize the adoption of the practice, 
 ■where necessarv; see Seton, 14; see also 
 13 & 14 Vic. c. 35, § 28; and orders to 
 prove exhibits viva voce or by affidavits 
 are frequently made; for recent instances, 
 see Jegini i'. V'ivian, M. R., 17 Dec., 1869, 
 Rolls' Lib.; Feltham v. Turner, M. R., 
 2 July, 1870, HoUs' Lib. Courts of Chan- 
 cery have always had the power to ex- 
 amine witnesses viva voce, for the purpose 
 of proving certain written instruments. 
 Levert v. Ixedwood. 9 Porter, 80; Hughes 
 V. Phelps, 3 Bibb. 199 ; Gresley Eq.' Ev. 
 (Am. ed.) 120; Latting r. Hall, 9 Paige, 
 483; Dana r. Nelson, 1 Aiken, 254; see 
 De I'ej'ster v. Golden, 1 Edw. Cli. 63; 
 Nesmith i'. Calvert, 1 Wood. & M. 34; 
 Gafnev v. lieeves, 6 Ind. (Porter) 71; Mor- 
 ton r." White, 5 Ind. (Porter) 338. 
 
 It is provided, that the late change in 
 the mode of taking evidence in l'",qiiity in 
 Massachusetts shall not prevent the use 
 of affidavits where they have heretofore 
 been allowed. Genl. Sts. c. 131, § 00. 
 
 By Chancer}' Rule 9 of New Jersey, no 
 documentary evidence, which is not made 
 an exhibit before the blaster, shall be read 
 at the hearing of the cause. 2 McCarter, 
 529. 
 
 ■• Ante, p. 828; Rowland v. Sturgis, 2 
 Hare, 520; Chalk v. Raiiie, 7 ILire. 393; 
 13 Jur. 981 ; Neville i'. Fitzgerald, 2 Dr. 
 & War. 530; Wvalt's P. K. 219; contra, 
 Jones V. Griffith,"l4 Sim. 202; 8 Jur. 733. 
 
 50
 
 S82 
 
 EVIDENCE. 
 
 C. XXII. § 
 
 !uu-u'nt 
 reoonls and 
 writini;s. 
 
 Copies of 
 UHonls 
 
 by iirojier 
 oilii-or. 
 
 Deeds, 
 k'tters, and 
 vouchers. 
 
 Nothing can 
 be proved 
 viva vuce 
 that requires 
 any evidence 
 besides that 
 of signature ; 
 
 or of tlio (loans and chaptcM-s of colloiilad' clmrclios, or of tlu' Ec- 
 cK'siastioal Courts, bulls of the Pojji's, records from the l>o<lleiaii, 
 Ilarleiau, and Museum libraries, or iVoiii any ol'the ]>ublie libraries 
 belon<i;ing to the two universities, or Iroui the library at l^tnubeth : 
 all or any of whieii aniient doeunients must be produced by those 
 perscMis in whose iiuniediate custody they are, who must be swoi'n 
 to identify the jiarticular record produced in his custody, before the 
 same can be read." ^ 
 
 So, in like manner may be proved, as exhibits, office copies of 
 records- fnini any of the Courts at Westminster, or of o;rants or 
 enrolments from the rolls or other records deposited in the Pid)lic 
 Kecord Offices, or of records or proceedings from Courts of inferior 
 jurisdiction in England : as those of the counties palatine of Ches- 
 ter, Lancaster, or Durham, or of the Courts of Great Session in 
 Wales, or of the Courts of the universities of Oxfoi-d and Cam- 
 bridge, or of the City of London, or of the Cinque Ports." 
 
 Deeds, bonds, promissory notes, bills of exchange, letters, or 
 receipts, of Avhich proof must be made of the liandwriting of the 
 persons writing or executing the same, are all considered as ex- 
 hibits, and may be proved at the hearing.* 
 
 With the exception of documents coming out of the custody of 
 a public officer having the care of such documents (which are 
 j)roved by the mere examination of the officer to that fact), no 
 exhil)it can thus be jn-oved that requires more than the ])roof of 
 the execution, or of handwriting, to substantiate it : ** if it be any 
 thing that admits of cross-examination, or that requires any evi- 
 dence besides that of handwriting, it cannot be received.® This 
 rule is strictly adhered to ; and in many cases, Avhere an instru- 
 ment which, ^^r^'ma yacie, appears to be an exhibit, requires more 
 formal proof, it cannot be received as one.'' Thus, the Court re- 
 
 1 2 Fowl. Ex. Pr. 157. 
 
 2 Tiie olHce copies here mentioned are 
 tlie copies of tliose ncords of which it is 
 the duty of proper (officers, appointed by 
 the law, to furnish copies for general use, 
 and are not tliose copies which it is ihe 
 duly of the otiicer of the Court to make 
 for the convenience of suitors in tiiat 
 Court, such as tlie ordinary otlice ci>pies 
 of pleadings and depositions in the Court 
 of Chance\y ; wiiich, although they are 
 adini-sible in the Courts to v\hich the 
 officer belongs, are not admissible in oiher 
 Courts without further proof ot their ac- 
 curacy. 2 Pliil. on Evid. 107 ; Taylor, § 
 1382. 
 
 3 2 Fowl. Ex. Pr. 158. 
 
 4 2 Fowl. Ex. Pr. 158; Hinde. 370. 
 
 5 See Ellis v. Deane, 3 Moll. 62; Emer- 
 son V. lierklev, 4 Hen. & M. 441. 
 
 6 L-,ike f.Skinner, 1 .J. & W. 0, 15; 
 Bowser t'. Colby, 1 Hare, 109, 132. It 
 seems, however, iliat the Court will, up- in 
 the suggestion of counsel, put questions to 
 the witness; see Turner v. Burleigh, 17 
 Ves. 354. 
 
 T Bloxton V. Drewit, Prec. in Cha. 64; 
 Ellis V. Deime, 3 Moll. 03; Emerson r. 
 Ikrkh'V, 4 Hen. & M. 441; Gre.sley Eq. 
 Ev. (.\m. ed ) 132 [190]. It is said not to 
 be, strictly spenking, correct to Siiy, that no 
 questions, which will admit of a cross- 
 examination, may be asked a wiiness thus 
 proving exhibits; but the fact is, that the 
 examination is restricted to three or lour 
 very simple points, such as the custody 
 and identity of an ancient flociiment pro- 
 duced In' a Iibr;)rian or registnr, the ac- 
 curacy of an office copy produced by the 
 proper officer, the execution of a (bed 
 where the ex:iniiiiant is the attesting wit- 
 ness, the haiuh 
 or promissory 
 Ev. (Am. ed ) 120. 
 
 Wiiere a minor is a party, tlie Court 
 will not permit a witness to he examined 
 viva vuce at' the hearing of the can.se, to 
 prove a deed or exhibit, which must be 
 proved at the office, by an examination 
 of the witness upon interrogatories. White 
 V. Baker, 1 Irish Eq. 282. 
 
 .iiiniiiciiiL in iiic aiLc^iiii^ vtju- 
 
 1 writing of a letter, or receipt, 
 f ni'te, &c , &c. Gresley Eq.
 
 PROVING EXHIBITS AT THE HEARING, UNDER AN ORDER. 
 
 883 
 
 fused to admit certain receipts to be proved viva voce, altliougli 
 ordinarily they might be taken as exhibits: because, in order 
 to make them evidence of the fact they were intended to sub- 
 stantiate, a further fact must have been proved, whicli the other 
 side would have had a right to controvert and to cross-examine 
 upon.^ So also, where a power was required to be exercised by 
 a deed executed in the presence of, and attested by witnesses, it 
 was held that the deed by which the power Avas exercised could 
 not be proved viod voce at the hearing of the cause ; - and where a 
 book, in wdiich the collector of a fornier rector had kept accounts 
 of the receipt of tithes, was offered to be proved viva voce, it was 
 rejected, because, besides jiroving the handwriting, it would be 
 necessary to prove that it came out of the projser custody, and that 
 the writer was the collector of the tithes.^ 
 
 For the same reason, a will of real estate cannot be proved as 
 an exhibit at the hearing : because, besides the mere execution of 
 the will, the sanity of the testator must be established, and the 
 heir has a right to cross-examine the witnesses.* Under the pres- 
 ent practice, however, a will has been allowed to be proved at the 
 hearing, with liberty to the heir to cross-examine the witnesses.^ 
 
 If a document is impeached by the answer of a defendant, it can- 
 not be proved viva voce, on the part of the plaintiff, against such 
 defendant. Thus, where the answer of one of the defendants in a 
 cause insisted that a covenant was fraudulently inserted in a deed, 
 the Court refused to admit such deed to be proved viva voce 
 against that defendant : although it was held, that it might have 
 been so proved against the other defendant, who had not im- 
 peached its authenticity.® So, where a bill was filed for the pay- 
 ment of an annuity, the circumstances under which the annuity 
 deed was executed being disputed by the parties, the j)laintitf was 
 not allowed to prove the deed viva voce as an exhibit ; but leave 
 was given to file interrogatories for that purpose.'' 
 
 It is only, however, where the execution or the authenticity of 
 a deed is impeached, that it cannot be proved as an exhibit : if 
 the validity of it only is dis])uted, it may be so proved ; ^ and 
 upon this principle, the plaintiff, in a foreclosure suit, was allowed 
 to prove by affidavit the mortgage deed under which he claimed, 
 where it was neither admitted nor denied by the defendant.'' 
 
 It is, howevever, necessary, in onler to autliorize the jiroving of 
 
 C. XXII. §7. 
 
 or that admisj 
 of cross- 
 examination. 
 
 Will cannot, 
 in general, be 
 thus proved ; 
 
 but has been 
 proved at 
 hearing, with 
 liberty to 
 heir to cross- 
 examine. 
 
 Documents 
 inipi-achod, 
 cannot ho 
 proved viva 
 voce. 
 
 Secuf, where 
 the validity 
 only is in 
 ([uestion. 
 
 Mortgage 
 deed, in Tore- 
 closure suit. 
 
 1 Earl Pomfret v. Lord Windsor, 2 Ves. 
 S. 47'i, 47'.*; and see IJIoxton t". Urewit, 
 I'reu in (Jh. 64. 
 
 2 Brace v. Uijck, 7 Sim. GIO. 
 
 8 Like V. Skinner, 1 J. & W. 9. 15. 
 * Ilarrii v Inglcil.w, ."3 1'. Wnis. 0.3; 
 Nibli-lt V. Daniel, Uiinl). 310; 2 Fo«l. Ex. 
 
 IV. l.jH; <inli', p|(. h~'\, H~r,. 
 
 6 CliicliCMter I'. Cliicliexter, 24 Heav. 
 289; 8ce also Hope v. Liddell, 20 lieav. 
 438. 
 
 BarfieUl v. Kcliv, 4 liuss. 355, 357; 
 Joly V. SwiCt, 3 .)(). & Lat 120; Hitchcock 
 V. C^irew, Kay A p. 14. 
 
 7 Maber v. Houbs, 1 Y. & C. Ex. 685, 
 586. 
 
 8 Attorney-General v. Pearson, 7 Sim. 
 30:t. 
 
 '■' Rowland v. Sturgis, 2 Hare, 520; 
 amtrit .Jones r. Grillitli, 14 Sim. 2t'>2; 8 
 Jur. 733; an<l ^ee Chalk v- liiiinc, 7 Hare, 
 393; 13 Jur. 981,
 
 884 
 
 EVIDENCE. 
 
 C. XXII. §7. 
 
 V. Y ' 
 
 Ox\\qx to 
 pmvo : how 
 ol)t;iiiUHi : 
 
 only liv party 
 inteiulinj; to 
 uso oxlul>its. 
 
 When onlor 
 lias not ln'Cii 
 olitainod be- 
 t'oro hearing. 
 
 I'OIMU of 
 
 ordor. 
 
 I'root': how 
 adduced ; 
 
 is confined to 
 the docu- 
 ments 
 mentioned, 
 saving just 
 exceptions. 
 
 Attendance of 
 ■witness: how 
 enforced. 
 
 ;in oxhibit at the hoarino- of a cause, that the party intending to 
 make use of the exliibit shouhl previously ol)tain an order for tliat 
 purpose.! Tliis order may he obtained, by the party requiring it, 
 on motion of eoiu-se, or on petition of course, at the Rolls,- and it 
 may be granted during the hearing of the cause : ^ in which case, 
 the cause will either be ordered to stand over for the purpose of 
 enabling the order to be served and acted U]>on, or, if the witness 
 is in Court, it may be acted upon immediately.'' 
 
 Tlie order, when drawn up, must describe minutely tlic exhibits 
 to be proved ; ^ and it is always made, as of course, " saving all 
 just exceptions." ® 
 
 The order, being drawii up, passed, and entered, a copy thereof 
 must be served, in the usual manner, upon the adverse solicitor, 
 two days previous to the hearing of the cause.'' 
 
 When the cause is called on, the original order, the exhibit 
 described therein, and the witness to prove the same, must be pro- 
 duced in Court; and the Registrar then administers the oath 
 and examines the witness ; ^ or, if proved by affidavit, the order 
 and exhibit must be produced wdth the affidavit.^ 
 
 No documents but those mentioned or described in the order, 
 can be thus proved at the hearing ;^° and as the order saves just 
 exceptions, all objections which can be taken to the admissibility of 
 the document as e\idence, may then be urged by the opposing party. 
 
 The attendance of an unwilling witness, to prove an exhibit at 
 the hearing, may be enforced by su'bx)mia^'^ and, unless an order 
 to prove viva voce at the hearing has been obtained, an order for 
 leave to issue the suhjycena appears to be necessary, and may be 
 obtained on ex parte motion.^- The s%thp(xna is prepared and 
 issued in the manner hereafter explained : ^^ and is made return- 
 
 1 Hinde, 370; Clare v. Wood, 1 Hare, 
 314; see Emerson v. Berklej', 4 Hen. & 
 M. 441; Barrow v. Khinelfinder, 1 John. 
 Ch. 559; Gresley Eq. Kv. {Am. ed.) 131 
 [188]. The order may be obtained after 
 the affidavit, in proof of the exhibits, is 
 made. S. 0. 
 
 2 See Graves v. Budgel, 1 Atk. 444. 
 For form of order, see Seton, 1237, No. 3. 
 
 3 Bank r. Eariiues, Amb. 145. 
 
 4 But see Bird v. Lake, 1 H. & M. 
 111. 
 
 6 As, if a deed, the date and parties' 
 names; if a letter, the date, and the 
 names of the persons by whom it was 
 written, and to whom it was addressed. 
 Gresley, 188; Gresley Eq. Ev. (Am. ed.) 
 131 [188]. To authorize a party to produce, 
 at the hearing, documentary evidence 
 which is not made an exhibit before the 
 Examiner, nor distinctly referred to in the 
 pleadings, the notice of intention to make 
 use of Such evidence should state suflicient 
 of the substance of the document intended 
 to be produced to enable tlie adverse 
 party to see that it is evidence of some 
 
 fact ajainst him. Miller v. Avery, 2 Barb. 
 Ch. 582. 
 
 6 Hinde, 370. 
 
 7 Hinde, 370; Gresley, 188; Ord. III. 1. 
 
 8 Hinde, 371; Bowser v. Colby, 1 Hare, 
 132 n. («). A witness may be examined 
 to prove exhibits, though examined be- 
 fore in the cause. Neep v. Abbot, C. P. 
 Coop. liJl. For form of oath, see Vol. III. 
 
 'J The order sliould be entered as read 
 in the decree. Seton, 14; i6. 24, No. 9. 
 The Registrar will indorse each exhibit 
 produced in evidence; for a form, see 
 Seton, 26. 
 
 10 Hinde, 371; Wyatt's P. K. 186. 
 
 n Iliude, 371. 
 
 i'.^ Hinde, 371; Gresley, 191; Seton, 14; 
 but see Holden v. Ilolden, 5 W. K. 217, V. 
 C. K.; 7 De G., M. & G. 397; Seton, 14; 
 Vorley v. Jerram, 6 W. K. 734; no formal 
 order is drawn up; a note signed by the 
 liegistrar of tlie direction of the Court 
 being sutficient; Raymond v. Brown, 4 
 De G. & J. 530. 
 
 18 See^^os^, pp. 905 tt seq.
 
 "\^TIO MAY BE WITNESSES. 
 
 885 
 
 able at the time and place specified in an accompanying notice ; C. xxii. § 8. 
 being usually the day on which the cause will be in the jiaper for ^ 
 
 hearing, and the Court of the Judge who is to hear it.^ The 
 order to prove viva voce, or to issue the subjjcena, as the case may 
 be, must be produced at the time the subpcena is sealed. Personal 
 ser'S'ice is necessary, and a tender of expenses, as in the case of an 
 ordinary sitbpoena ad testificandum? 
 
 The adverse party has no right, in the absence of special cir- As to produc- 
 cumstances to compel the production, before the hearing, of an g°hibits 
 exhibit, however it has been proved : ^ unless, perhaps, where the 
 deposition proving it sets it out verhati^n ; * nor even to inspect it : 
 for he is not, before the hearing, to " see the strength of the cause, 
 or any deed to pick holes in it." ^ 
 
 Section VIII. — IVho may he Witnesses. 
 
 Formerly, persons intei-ested in the matters in question in the Removal 
 suit, or 2)arties thereto ; ® or who had been found guilty of certain restrk^tions. 
 
 1 Sched. to Ord. E. No. 2. 
 
 2 See post, p. 906. 
 
 8 Forrester v. Helme, M'Cl. 558; Lord 
 V. Colvin, 2 Drew. 205; 5 De G., M. & G. 
 47; 18 Jur. 253. 
 
 * Hodsoa V. Earl of Warrington, 3 P. 
 Wms. 34. 
 
 6 Gresley, 192, citing Davers v. Davers, 
 2 P. Wms. 410; 2 Str. 764; Wiley v. 
 Pistor, 7 Ve«. 411; Feiicntt v. Clarke, G 
 Sim. 8; Lord r. Colvin, ubi sup.; and see 
 post, p. 896; Bell «. Johnson, 1 J. & H. 
 682. 
 
 6 In Chancery, parties to the record 
 were always subject to examination, us 
 witnesses, much more freely than at Law. 
 A plaintiff might obtain an order as of 
 course, to examine a defendant, and a de- 
 fendant a co-defeiuiaiit, as a witness, upon 
 aflidavit that he was a material witness, 
 and was not interested on the side of the 
 applicant, in tiie mat'er to wiiicli it was 
 proposed to examine him; tlie order being 
 made subject to all just exceptions. If tlie 
 answer of the defendant iiad been replied 
 to, the repHcation must be witlidrawn be- 
 fore the plaintill' could examine liim. But 
 a plaintiff couM not be examined by a 
 dcli'ndant, except by consent, unless ho 
 was merely a trustee, or liad no beneficial 
 interest in tiie matter in (juestion. Nor 
 could a co-plaintiff be examined by a 
 plaintiff, without the consent of the de- 
 fendant. The course in the latter of sucii 
 cases was to strike out liis name as plain- 
 tiff, and make him a defendant, and in the 
 fonncr to file a cross-liill. 1 (ireenl. !•>. 
 § 361; 1 Sniilii Ch. I'r. .■{•»•'!, .■i44; K<klord 
 r. J>ekav. 6 fai^e, 56.'.; see Hill v. Hill, :> 
 Gill &'.I. 81; l;e\Volf V. .lolmson, 10 
 Wheat. 307; (;resley Kq. Kv. (Am. ed.) 
 242 et seq.; Second r. First Cong. Society 
 
 ill Hopkinton, 14 N. H. 315. Where one 
 party was examined as a witness against 
 another party in the same cause, he 
 niiglit be cross-examined like any otlier 
 witness by the party against whom lie 
 was called, and his evidence could not be 
 used in his own favor. Benson v. Leioy, 
 
 1 Paige, 122. But where a party was ex- 
 amined before a Master in relation to his 
 own rights, and the examination was in 
 the nature of a bill of discovers, he could 
 not be cross-examined by his own coun- 
 sel, nor could he give evidence in his own 
 favor, any further tlian his answers were 
 responsive to the questions put to him. 
 Ibid. lie must, however, accompany his 
 answer by explanations responsive to the 
 interrogatory, which might be necessary- 
 to rebut any improper inference arising 
 from such answer. Ibid.; see Annsby v. 
 Wood, 1 Ilopk. 229. 
 
 If there were more defendants tliauone, 
 an examination of a defendant might be 
 had, and a decree obtained against an- 
 other defendant upon the facts elicited by 
 such examination; but a decree could not 
 be liad against the party examined, em- 
 bracing such facts. Palmer v. Van Doren, 
 
 2 Edw. Ch. 192; Bradley v. Hoot, 5 Paige, 
 633. Where a defendant had l)een exam- 
 ined under the usual order, as a witness, 
 a plaintiff might have a decree against 
 him upon other matters, to which he was 
 not examined. Palmer r. Van Doren, 2 
 VAw. CI). 192. The rule that a plaintiff 
 cimid not have a decree against a defen<l- 
 ant, whom he had examined as a witness 
 in the cause, cljd not ajiply to the case of a 
 mere formal dcdi'mlant, as an executor or 
 trustee, against whom n<j personal. <iecreo 
 was sought, and who had no personal in- 
 terest in the (juestion, as to which he was
 
 886 
 
 EVIDENCK. 
 
 Witnossos: 
 how sworn 
 
 or artinnoil. 
 
 A poor mu 
 bo sworn. 
 
 ('. XXII. § S. crimes,^ m-cvo inoomiiotont to give oviilcneo ; l)iit these rcstvictions 
 Imvo boon iviiiovihI.- 
 
 Tho witiu'ssos should be swoni in sucli Ibnii, niid witli such 
 ccromouii's, as thoy may doi'laro to be bhuliiiL!; on theii" con- 
 scienees;^ and any jierson conii)(.'tent to be a witness may, if he 
 objeets to take an oatli, or is objected to as incom])etent to take an 
 oatlu and the presiding Judge '' is satisfied that the taking of an 
 oath wiudd liave no binding effect on his conscience, give evidence 
 t ujion liis ]>romise and dechivation.'' A peer, altliough privileged to 
 
 State I'. DeAVolf, 8 Conn. 9.3; Common- 
 wealth r. Hill, 14 Muss. 207; 1 Phil. Ev. 
 (Coweii & llill'.s cd. 1S39) 19, and note 
 (49). As to the competeiioy of ciiiklren, 1 
 Groenl. Ev. § 367 ; (ireslevEq. Ev. (Am. 
 ed,) 237; 1 Phil. Ev. (Cowon & Hill's ed. 
 1S39) 19, 20, iintcs (50), (51), (52). 
 
 - 3 & 4 Will. IV. c. 42, §§ 26, 27 ; 6 & 7 
 Vic. c. 85; 14 & 15 Vic. c 99; 16 & 17 
 Vic. c. 83; see Taylor, §§ 1211-1219. As 
 to the cnmpetencv of witnesses, see Tnvlur, 
 §§ 1210-1257; Best, §§ 1S7-271; Powell, 
 25 et seq. By a late statute of INIassachu- 
 setts, no person of sufficient understanding 
 shall be excluded from giving evidence as 
 a witness, in any civil proceeding, in Court 
 or before a person having authority to re- 
 ceive evidence; suhject to the qualificiition 
 that neither husband nor wife .sh'.dl be 
 allowed to testify as to private conversa- 
 tions with each other; and the conviction 
 of a -witness of any crime may be shown 
 to afiect his credibility. A party to a 
 cause who shall call the adverse party as 
 a witness, shall be allowed the same liberty 
 in the examination of such witness, as is 
 now allowed upon cross-examination. St. 
 Mass. 1870, c. 393, §§ 1, 3, 4; see Metier v. 
 Metier, 3 C E. Green (N. J.), 270, 276; S. 
 C. 4 0. E. Green (N. J), 457; Harrison v. 
 Johnson, 3 C. E. Green (N. J), 42U ; Bird 
 V. Davis, 1 McCarter (N. J.), 467; Marlott 
 V. Warwick, 3 C E. Green (N. J.), 108; 
 Doodv V. Pierce, 9 Allen, 141; Bailey v. 
 Mvriek, 52 Maine, 132. 
 
 3 1 & 2 Vic. c. 105. Such is the law by 
 statute of Massachusetts. Genl. Sts. c. 
 131, § 12. In this State, the oath is ordi- 
 narilv administered, with the ceremony of 
 holding up the hand. Genl. Sts. c. 131, § 8. 
 But where tlie witness is a Roman Catho- 
 lic, the oath is administereil to him on the 
 lit I}- Evangelists, on the ground that those 
 who profess that faith, generally regard 
 this to be the most solemn form of admin- 
 istering an oath. Commonwealth v. Buz- 
 zell, 16 Pick. 153. So in any case where 
 the Court or magistrate before whom a 
 person is to be sworn, is satisfied that such 
 person has any peculiar mode of swearing 
 which is in his opinion more sfilemn or 
 obligatory than holding up the hand, they 
 may adopt that mode of administering'the 
 oatli. (ieid. Sts. c. 131, § 9. 
 
 * This expression includes any person 
 or persons having by law authority to ad- 
 minister an oa;h for the taking of evidence; 
 see The Evidence Amendment Act, 1870 
 (33 & 34 Vic. c. 49), § 1. 
 
 6 The Evidence Further Amendment 
 
 examined as a witness against his co-de- 
 fendants; nor to the case of a defendant, 
 who, by liis answer, admitted his own lia- 
 bility, or who suffered tiie bill to be taken 
 as confessed Against him. Bradley v. 
 Koot, 5 Paige, 633; Pingree v. Coffin, 12 
 Gray, 288. AVhcre a defonilant admitted 
 that he was jirimarily liable to the plain- 
 tirt" for the paynitnt of the demand, for 
 which the suit was brought, he might be 
 examined either by the plaintitf or l)y his 
 co-defendants, as a witness in the cause. 
 Bradley v. Root, 5 Paige, 033; see Regan 
 V. Echols, 5 Gen. 71; Palmer r. A'an 
 Doren, 2 Edw. Ch. 192; Fulton Bank v. 
 Sliaron Canal Co., 4 Paige, 127; Ormsbj' 
 V. Bakewell, 7 Ohio, 98. 
 
 An order allowing a defendant to ex- 
 amine his co-defendant as a witness 
 would ahvays be granted upon a sugges- 
 tion that the party to be examined had no 
 interest in the cause, leaving the question 
 of interest to be settled at the hearing, 
 upon the proofs. Nevill v. Demerit t, 1 
 Green Ch. 321; Ch. Rule of Xew Jersey, 
 78, 2 JlcCarter, 529; see Harrison v. John- 
 son, 3 C. E. Green (N. J.), 420; Graham 
 V. Berrynian, 4 C. E. Green (N. J.), 29. 
 The adverse party might at the hearing 
 object to the competency of a defendant's 
 examination, and if he appeared to be in- 
 terested in the matters to which he was 
 examined, the objection might be taken 
 at the hearing, though it had not been 
 made before. Mohawk Bank v. Atwater, 
 2 Paige, 54. 
 
 The evidence of a co-defendant is not 
 rendered incompetent by the fact that no 
 order was made for his examination. 
 Since the Xew Jerse)' Act removing the 
 disqualification of interest in a witness, as 
 a party or otherwise, no oriler for his ex- 
 amination is necessan,' in that State. Giv- 
 eans v. McMurtry, 1 C. E. Green (N. J.), 
 468. Nor is it any objection to the com- 
 petency of a co-defendant to testify', that he 
 has net answered the bill, but has suffered 
 a decree pro conj'esso against him. The 
 plaintiff" ma}-, at liis discretion, require 
 him to answer. But if he do not, the de- 
 fendant, by failing to answer, cannot de- 
 prive his co-defendant of his testimony, or 
 disqualify him as a witness in the cause. 
 Giveans v. JIcMurtry, nbi supra. 
 
 1 As to persons laboring under defect of 
 understanding, see 1 Greeid. Ev. § 305; 
 Greslev'Eq. Ev. (Am. ed.) 237; 1 Phil. 
 Ev. (Cowen & Hill's ed. 1839) 18, 19, notes 
 (47), (48). As to the competencj' of deaf 
 and dumb persons, see 1 Greenl. Ev. § 36(5;
 
 MAJfNER OF, AND TIME FOR, TAKING EVIDENCE. 
 
 887 
 
 put in his answer upon liis attestation of honor, must, when called C. xxii. § !). 
 
 upon to give evidence as a witness, do so upon oath.^ ' '^ ' 
 
 It is a contempt of Court to publish, Avhile a cause is pcndino-, Publication of 
 
 comments upon the evidence which, beino; calculated to iniure the '''l*/*'^'^ "" 
 
 ^ ... witnesses: 
 
 litigants' cases, or to create ill feeling against the witnesses, may when a 
 
 tend to hinder the course of justice,- ''"'^ ^™'''" 
 
 Section IX. — Manne7' of, and Time for, talcing Evidence. 
 
 Fonnerly, tlie general mode of examining witnesses in Equity Former 
 was by interrogatories in writing, exhibited by the party, plaintiff practice; 
 or defendant, or directed by the Court to be proposed to or asked 
 of the witnesses in a cause.^ This practice has been abolished, 
 and a new system substituted in its j^lace.* The Court may, how- may still be 
 ever, if it shall think fit, order any particular witness, either within particukr*' ^" 
 or out of the jurisdiction, to be examined upon interrogatories; cases; 
 and Avith respect to such Avitness or witnesses, the former jiractice 
 of the Court in relation to the examination of Avitnesses continues 
 in full force, save only so far as the same may be varied by any 
 General Order of the Lord Cliancellor in that behalf, or by any 
 
 Act, 1869 (32 & 33 Amc. c. 68), § 4; and 
 see before tliis Act. 7 & 8 Will. III. c. 31, 
 § 1 ; 8 Geo. I. c. 6. § 1 ; 22 (}eo. II. c. 30, § 
 1; xh. c. 46. § 36; 9 Geo. IV. c. 32, § 1 ; 3 
 & 4 Will. IV. c. 49. 'lb. c. 82; 1 & 2 AHc. 
 c. 77; ib. c. 105; 17 & 18 Vice. 12.5, § 20; 
 Taylor, § 12.56. In Massachusetts, every 
 person who declares that he has conscien- 
 tious scruples sifjainst takinir an oatli, shall, 
 when called upon for that purpo-e, be per- 
 mitte'l to atfirin in the manner prescribed 
 for (Quakers, if the Cnurt or magistrate on 
 inrjuirv is satisfied of the truth of such 
 declaration. Geiil. Sts. c. 131, §§ 10,11. 
 Conscientious scruples furnish <;roiind for 
 substituting an affirmation for an oath in 
 the United .States Courts. Rule 91 of the 
 Equity Hules for United States Courts. 
 As to the effect of a want nf religions be- 
 lief, see Madeii v. Catanach, 7 II. & N. 
 360; 7 .Jur. N. S. 1107; Gre>lev Hq. Kv. 
 (Am. ed.) 237, 238; 1 Greeiil. Ev. §§ 
 368-370, and notes and cases cited; 1 
 Phil. Kv. (Cowen & Iliirs ed. 1839) 20- 
 27, and notes; Smith v. Coffin, 18 Maine, 
 1.07. 
 
 In M:issachusett«, every person not a 
 believer in any religion shall be rc(|uired 
 to testily tridy, under the [)ains and peual- 
 ties of perjury; and the evidence of such 
 per'-on's di-b^jlief in the existence of God 
 may be received to affect his credibility as 
 a witne-s. Gonl. Sts. c. 131, § 12. 
 
 1 Taylor, § 121.'>. 
 
 2 Anon., 2 Aik. 409; S. C, nom. Roach 
 V. Garviin, 2 l)ick. 794; Littler v 'I'lionip- 
 80n. 2 Ik-av. 129; Felkin v. I^ord Herbert, 
 10 Jur. N. S. 62; 12 W. R. 241, V. (J. K. ; 
 
 Tichborne v. Mostyn, L. R. 7 Eq. 55, r. (i), 
 V. C. AV. 
 
 3 Ante, p. 836, note. 
 
 4 In Massachusetts, " in proceedings in 
 Equity, the evidence shall be taken in the 
 same manner as in suits at Law, unless the 
 Court fur special reasons otherwise directs; 
 but this shall not prevent the use of afK- 
 davits where thev have heretofore been 
 allowed." Genl."Sts. c. 131, § 60. Under 
 the above statute, the evidence " is to be 
 taken vita voce wiien it can be so taken, 
 and when depositions would be allowed in 
 an action :it Law, they may be taken in 
 Equity; and all the rules of Law, ;is to the 
 taking and tiling of depositions at Law, will 
 apply in Equity. And this statute neces- 
 sarily supersedes the rules of Court, as to 
 the taking and filing of depositions in 
 Chancery." And, in a suit in Kquity, 
 where a commis--ion was applied for to 
 take the testimony of a witness residing 
 out of the Connnonwealth, after the lime 
 fi.xed by the rules of Court for setting the 
 cause down f r iiearing, the Court said: 
 "The plaintifl", is, therefore, entitled to 
 have a commission issue, as he would have 
 been according to the estahlished rule and 
 practice at Law, where testimony is to bo 
 tMken out of the jurisdiction of the (Jourt." 
 Per Shaw C. J. in Piiigree v. Collin, 12 
 Cush. 600, 601. 
 
 In \\'isconsin, each party to a suit in 
 Equity has a right to have his witnesses 
 examine<l in opi'tt Court, suliject to tho 
 ('C(;asioinil exci-ptions provided for in cases 
 at Law. Noonaii v. Orton, 5 Wis. 00; 
 Brown v. Runals, 14 AVis 093.
 
 888 
 
 EVIDENCE. 
 
 C. XXII. §0. 
 
 liiit raivly, if 
 evor, is. 
 
 rii'sent iiuhIc 
 oftakiiij; 
 eviiloiK'o, 
 oil iiitorloi'U- 
 tory applica- 
 tions. 
 
 AtUT lU'crec. 
 
 On motion for 
 ileiToo. 
 
 Where issue 
 has been 
 joined. 
 
 Evidence in 
 chief. 
 
 In-e,iriilar to 
 examine wit- 
 nesses for 
 hearinp, be- 
 fore notice of 
 motion for 
 decree, or 
 replication. 
 
 Cross- 
 examination. 
 
 order of the Court with reference to any jiartieuhir cnse.^ The 
 Court lias rarely, if ever, availed itself of this jiower to resort to 
 the former practice in the examination of jjarticular Avitnesscs.'^ 
 It is, therelbre, thought undesirable to state the former practice in 
 detail. 
 
 The evidence on interlocutory ai)i)lications, in causes and 
 matters depentling in the Court, is usually taken by ailidavit; 
 but it may be taken by oral examinatio'n before an Examiner.^ 
 And after a decree in a cause, the evidence may be taken, either 
 by alhdavit, or by oral examination before an Examiner, or Chief 
 Cierk of the Judge.* 
 
 We have already seen,^ that a cause may be brought to a hear- 
 ing on motion for decree, instead of replication being filed in the 
 ordinary way. If this is done, the evidence is adduced by affidavit," 
 and in such case an answer, if one has been filed, may be treated 
 as an affidavit." 
 
 If the cause is brought to a hearing by filing replication, the 
 evidence is taken by affidavit, or by ex parte examination before 
 an Examiner, except as to any facts or issues ordered to be proved 
 by evidence taken viva voce, at the hearing:* the parties having 
 the advantage, which they have not on motion for decree, that 
 they may thus have an ex parte oral examination of a witness who 
 refuses to make an affidavit.^ 
 
 Unless an order to take his evidence de bene esse ^^ has been ob- 
 tained, it is irregular to examine a Avitness, for the pui-poses of the 
 hearing, previously to serving a notice of motion for a decree or 
 the filing of reiilication,^^ and the power to examine a witness for 
 the i^urpose of using his evidence on any claim, motion, petition, 
 or other proceeding before the Court,^- is confined to those cases 
 in which the evidence is to be used on a claim, motion, petition, 
 or proceeding which is actually pending.^^ 
 
 Witnesses Avho have made affidavits, or been examined ex parte 
 before the Examiner, are liable to cross-examination at the hear- 
 ing ; " and where a party has given notice to read an affidavit, he 
 wall not be allowed to withdraw the affidavit, and so j^revent the 
 
 1 15 & 16 Vic. c. 86, § 28. So under 
 the amendment of the 67th of the Rules in 
 Kquityof the Supreme Court of the United 
 States. 
 
 2 See London Bnnk of jNIexico v. Hart, 
 L. K. 6 Kq. 467, V. G. G.; wliere a com- 
 mission according to former practice was 
 refused. 
 
 3 15& 16 Vic. c. 86, § 40; Ord. 5 Feb., 
 1861, r. 22; see post, p. 905 and note; ante, 
 p. 821, note. 
 
 4 15 & 16 Vic. c. 86, § 41 ; 15 & 16 Vic. 
 c. 80, § 30; Ord. 5 Feb., 1861, r. 15. 
 
 5 Ante, pp. 819 et stq. ; 15 & 16 Vic. c. 
 86, §§ 15, 16. 
 
 6 Coles V. Morris, L. R. 2 Ch. Ap. 701, 
 705, L. C. 
 
 7 Ante, 821; 15 & 16 Vice. 86, § 15; 
 Ord. XXXIII. 5, 6, 7. 
 
 8 Ord. 5 Feb., 1861, r. 4. By con.^ent, 
 under, r. 10, the examination, or cross-ex- 
 amination, of any particular witness may 
 be taken in manner provided bj' 15 & 16 
 Vic. c. 86; see jwst, p. 904. 
 
 '■' Coles V. Morris, L. R. 2 Ch. Ap. 701, 
 704. L. C. 
 
 1" As to taking evidence de bene esse, see 
 post, pp. 932-941. 
 
 11 Kendle v. Metropolitan & Provincial 
 Bank, W. N. (1867), 239; 16 W. R. 1068, 
 V. C. S. 
 
 1^ See 15 & 16 Vic. c. 86, § 40. 
 
 13 Coles V. Morris, L. R. 2 Ch. Ap. 701, 
 704. 
 
 " 15 & 16 Vic. c. 86, § 38 ; Ord. 5 Feb., 
 1861, rr. 7, 19; and see Fielden v. Goschen, 
 18 W. R. 85, V. C. S.
 
 MANNER OF, AND TIME FOR, TAKING EVIDENCE. 
 
 889 
 
 witness from being cross-examined npon it.^ There can be no 
 cross-examination, however, xipon an affidavit of documents.- 
 
 No affidavit or deposition filed or made before issue joined in 
 any cause will, without special leave of the Court, be received at 
 the hearing thereof, unless within one month after issue joined, 
 or within such longer time as may be allowed by special leave of 
 the Court, notice in writing has been given by the party intending 
 to use the same, to the opposite party, of his intention in that behalf.^ 
 An application to enlarge the month may be made by summons : * 
 which must be served on the other parties with whom issue is 
 joined. "Where the affidavit has been sworn before, but filed after 
 issue was joined, it was allowed to be iised, though the notice had 
 not been given." Where, in consequence of the opposite party 
 ha^dng absconded, the notice could not be served upon him, leave 
 was given to advertise it.® 
 
 The evidence in chief on both sides, in any cause in which issue 
 is joined, in respect of fiicts and issues not included in any order 
 for taking e\adence in chief viva voce at the hearing, whether taken 
 by affidavit or before an Examiner (and including the cross-exami- 
 nation and re-examination of any witness or other person) must 
 be closed within eight weeks after issue joined, unless the time be 
 enlarged by any special order.'^ And no further evidence, ex- 
 cept the cross-examination and re-examination of a witness who 
 has made an affidavit, or been examined ex parte before the Ex- 
 aminer, will be received, without special leave of the Court, pre- 
 A^ously obtained for that j^irpose.^ 
 
 Where the eight weeks expire in the long vacation, the time for 
 closing evidence is extended by a General Order, to the fifth day 
 of the ensuing Michaelmas Term.° 
 
 As a general rule, new evidence is only allowed to be received 
 after the evidence is closed, in the following cases : where the 
 party who desires to file an affidavit has not had an opportunity of 
 seeing the evidence on the other side; where, though he has seen 
 the evidence, he finds that it raises a new issue, not raised by the 
 pleadings, and which is material to the decision of the case; where 
 an affidavit has been filed impeaching the character of a witness, 
 in which case the person whose character is assailed is entitled to 
 
 r. XXII. 5 0. 
 
 Evidence in 
 chief: when 
 to be closed. 
 
 Where the 
 time expires 
 in the long 
 vacation. 
 
 Principles on 
 which affida- 
 vits tiled after 
 closing of 
 evidence are 
 received. 
 
 1 riarke r. Law, 2 K. & .1.28; 2 Jiir. N. 
 S. 221 ; National Iii'-iirance Association «. 
 Carstairs, ;» .hir. X. S. 055, M. li. 
 
 2 Miinl.yr. liewicke (No. 2), 8 I)e G., 
 M. & (i.470; 2 .lur. N. S. 672; overruling 
 Krty I'. Smith, 20 15eav. 56G. 
 
 a'Ord .\I.\. 12. 
 
 < S.-e Ord. XX.WII. 17. 
 
 6 Niclioll V. Jones, 36 L. J. Ch. 554, V. 
 C. W. 
 
 « Miir[.hv v. Vincent, W. N. (1870), 
 217, V. <;. W. 
 
 7 Ord. 5 Feb., 18G1, r. 5; see po»l, p. 
 890. Where tlie time is enlarged, after 
 the cause has been set down for heating. 
 
 the order should bo produced to the Order 
 of Oiurse t'lerk in the itigislrars' office, 
 wiio will make a note liierfuf in tiie causo- 
 bi'ok kept there; see Keg. Kegul. 21 Jan., 
 1801. 
 
 « 15 & 16 Vic. 0. 86, § 38; Ord. 5 Feb., 
 1801, ir. 5, 19; see Tiicxton v. Kdmonston, 
 L. M. 5 K(.. 373. 
 
 '•' Ord. XXX VII. 15; and it seems the 
 ruh; a])plies wlieie tlie eight necks iiavo 
 been enlarged, ami the enlarged time ex- 
 pires in th(r long vac'ilioii ; see (^Inrk «. 
 Malpns, cited Morgan, 553; and see Braith- 
 waite'.s .Manual, 107, n. '40).
 
 890 
 
 EVIDENCE. 
 
 r. XXII. § 9. 
 
 At the 
 hearing. 
 
 Leave to use 
 affidavits: 
 how obtained. 
 
 Application 
 to enhirge 
 time to take 
 evidence : 
 how made. 
 
 Service of 
 summons. 
 
 Insufficient 
 grounds for 
 the applica- 
 tion. 
 
 Xotice to 
 produce 
 witness or 
 deponent 
 for cross- 
 examination. 
 
 ailtluoo ovulcnco to meet llio olinvijos; niul where new f;icts ma- 
 torinl to (he issue have arisen after the eU)sin<>; of the evi(U^nee> 
 AVhere, by inailvertenee, an atlithivit, tluninh prcitared, was not 
 tiled until nine days after the time tor takin;;- evidenee was ek)sed, 
 the Court, (»u motion, gave leave to use it, on payment of the eosts 
 of the motion;- and it is eoneeived that the Court Mill grant such 
 speeial leave, in all eases Avhere, under the eireumstanees, it thinks 
 that justice requires it." Such special leave was refused where the 
 api^lication was made on the ground that a material witness had 
 been discovered, whose evidence the applicant had no means of 
 })reviously knowing to be attainable.^ 
 
 The Court has also power, if it thinks fit, to allow such evidence 
 to be used at the hearing, although no special leave has been pre- 
 viously obtained; "5 and it has allowed a motion fbr this purpose to 
 be brought on with the cause." 
 
 The a])plication for leave to nse affidavits, filed after the evi- 
 dence is closed, may be made in Chambers by summons, or in 
 Court by motion ; it has, however, been usually made in Court. The 
 summons, or notice of the motion, should be served on all ])arties.'' 
 
 The a])plication to enlarge the time for taking evidence is made 
 in Chambers by summons,^ supported by affidavit, showing the 
 grounds of the application. The costs of the application should be 
 disposed of at the time it is heard ; and will in general be made 
 costs in the cause. The summons, Avhether taken out by the ])lain- 
 titf or by a defendant, must be served by the applicant upon all the 
 other parties to the cause with whom issue is joined. 
 
 The fact that the evidence of the other party was filed at the 
 last moment allowed for so doing, is no ground for enlarging the 
 time for taking evidence, if it is confined to matters distinctly put 
 in issue by the pleadings.^ 
 
 Whenever any party desires to cross-examine any witness who 
 has made an affidavit, or been examined ex parte before the Ex- 
 aminer, he must give notice, within certain limited times, to the 
 party by whom the affidavit was filed or the witness examined, to 
 produce the witness for cross-examination ; ^° or he may serve the 
 witness with a suhpcejia, requiring him to attend for the same pur- 
 
 1 Thexton v. Edmonston, L. K. 5 Eq. 
 373, 375, M. R.; and see Scott v. Maj-or of 
 Liverpool, 1 I)e G. & J. 369; 3 Jur N. S. 
 832, L. 33. \ ib. 533, V. C. S.; Poupard v. 
 Fardel], W. N. (1869), 236, 18 W. H. 37, 
 59, V. C. M.; Philips v. Warde, 2 Jur. N. 
 S. 608, V. C. S. 
 
 2 Doughis V. Archhutt, 23 Beav. 293. 
 
 8 Scott V. ^^Favor of Liverponi, 1 I)fi Ti. 
 & J. 369; 3 .lur.'N. S. 832, I;. .J.J.; Philips 
 V. Warde, 2 .Jur. N. S. 608, V. G. S. ; Wat- 
 son V. Cleaver, 20 i5eav. 137; 1 .lur. N. S. 
 270; Hope v. Thr-lfill, 1 Sm. & G. App. 
 21; 17 . lur. 1021; McLachl m v. Lord, 14 
 L. T. N. S. 98, V. C. S. ; Hodges v. Doul- 
 ton, 18 W. li. 58, V. C. M. 
 
 4 Thexton v. Edmonston, L. R. 5 Eq. 
 373, M. R. 
 
 5 Bovse V. Colclough, 1 K. & J. 124. 144; 
 Biiyley w. Ca-^s, 10 W. R. 370, where V. C. 
 Stuart said that this is the proper time. 
 See iilsD I'oupard v. Kiirdcil, W . N. (18U9), 
 236; 18 W. R. 37. 59, V. C. M. 
 
 G [lope V. Threh'all, 1 Sm. & G. App. 21; 
 17 Jur. 1021. 
 
 ■? See Richards v. Curlewis, 18 Beav. 462. 
 
 8 15 & 16 Vic. c. 80, § 26. 
 
 '•* Thompson v. I'iirtridije, 4 De G., M. & 
 G. 794; 17 Jur. IIOS; see Scott v. Miivor 
 of Liverpool, 1 De G & J. 371; 3 Jur.'N. 
 S. 832; and S. C, before V. C. Stuart, 3 
 Jur N. S 5.33. 
 
 10 Ord. 6 Feb., 1861, r. 19.
 
 AFFIDAVITS AND EX-PARTE EXAMINATIONS BEFORE EXAMINER. 
 
 891 
 
 pose.^ For the details of the practice on the subject of cross- C XXII. §10. 
 examination, the reader is referred to the section on viva voce 
 evidence. - 
 
 A ph^intiff cannot, without giving notice, use the evidence ad- 
 duced on behalf of a defendant against a co-defendant.^ 
 
 Sectiox X. — Affidavits and ex-parte Examinations before an 
 
 Examiner. 
 
 An affidavit is a statement in writing sworn to, or affirmed,'' 
 before some person having authority to adniinister oaths.^ It 
 must, except in the case of a bill which is required to be accom- 
 panied with an affidavit,'' be made in some cause or matter actually 
 pending at the time it is sworn : otherwise it cannot be received.'^ 
 An affi(h^vit will be received, although the deponent has died since 
 it was sworn ; but the Court will not attach so much Aveight to it 
 as it would have done, if an opportunity for the cross-examination 
 of the deponent thereon had been afforded.^ 
 
 Affidavits may be sworn before any of the persons authorized to 
 take answers in Chancery. Who these persons are, and the nature 
 and extent of their authority, has been already stated.^ 
 
 The commissioner before whom the affidavit is sworn, must not 
 be a solicitor in the cause." In a case before Lord Hardwicke, 
 where tlie affidavits, in support of a petition, had been sworn before 
 the petitioner's solicitor, the petition was dismissed, and the costs 
 were directed to come out of the solicitor's pocket.^^ And in the case 
 of Wood V. Harpur^'- Lord Langdale M. R. rejected affidavits, be- 
 
 Riflht of 
 plaintiff to 
 use against 
 a defendant 
 evidence 
 taken by a 
 co-defendant. 
 
 Nature of 
 atfi davits : 
 
 Must be made 
 in a pending 
 suit. 
 
 Effect of 
 death of 
 deponent. 
 
 Affidavits: 
 before whom 
 they niaj' be 
 sworn. 
 
 Commis- 
 sioner must 
 not be a 
 solicitor in 
 the cause. 
 
 1 Singer's Sewing Machine Manufac- 
 turing Companv v. Wil>on, 2 H. & M. 
 5(-4; U .lur. N." S. 58, V. C. W.; :iiid pee 
 Cox V. Stephens, 9 .Jur. N. S. 1144; 11 W. 
 R. 929. V. C. K. 
 
 2 Pos^ pp. 837 tl seq. 
 
 8 Fielden v. Slater, L..R. 7 Eq. 523.529, 
 V. C. .1. ; but see Lord v Colvin, 3 I-)rew. 
 222; Sturgis t). Morse, (No. 2), 26 Beav. 
 662. 
 
 * 17 & 18 Vic. c. 125, § 20; and ante, p. 
 887. 
 
 6 In Hiiight V. Jforris Aqueduct, 4 Wash. 
 C. C. 601, it wa^ heM that an affidavit in 
 Chancery, not sworn before ;i .Judge of the 
 Court, or a commissioner appointed to nd- 
 miiiister nn oath, could not l)e received in 
 evidence. Anaffiiirtvit in New York may 
 be sworti to before a State senator, he 
 being vx '•JjUin n .Judge of t lie Couvt for the 
 Correction of Hrrnrs. which i< a (Jourt of 
 record, f.'raig »•. Hriirgs, 4 I'aige, 548. 
 An atlidtvvit taken before a commissioner 
 of deeds (kfncln, for a city, who is exer- 
 cising such office urxler color of an ap- 
 pointment by tlie (lovernor and .Senate, 
 may Ijc read in a suit l)etwenn otlier per- 
 sons; and the (^ourr will iKit inf|uire col- 
 hitiraliy into the leg-ilifj- of such appoint- 
 ment. I'arker t;. linker, 8 I'aige, 428. 
 Oaths are to be a'lministered in a reverent 
 miinncr. C)rd. XIX. 14. 
 
 « Ante, 392-396. 
 
 " Francome v. P'rancome, 11 Jur. N. S. 
 123; 13 \V. li. 355, L. C; overruling Ken- 
 nail V. Brown, 18 Jur. 1051, V. C. W. 
 Affidavits filed after piiyment in of fund, 
 but before presentation of petition tiir pay- 
 ment out, were received, lit Varlf-v, 14 
 "W. R. 98, V. C K; and see Re Western 
 Benefit Building Society, 33 Ben v. 368. 
 
 8 Abadom v AI)adoni, 24 Beav. 243; 
 AVilliams v. Williams, 10 .Jur. N. S. 608; 
 
 12 W. H. 663, V. C. Iv.; Diivies v. Ottv, 
 
 13 W. R. 484, M. R.; Ridley v. Kidlej-, 34 
 Be;iv. 329; and see Morlev v. Morlev, 5 
 Do G, M. & G. 610, 013, 614; 1 .Jur." N. 
 S. 1097, 1098; see al-o T;mswell v. Scur- 
 rah, 11 L. T., N. S. 701, M. R.; Moore 
 V. Harper, W. N. 56; 14 W. R. 3u6, V. 
 C. \V.; Braithwaite v. Kearus, 34 Beav. 
 202. 
 
 '■> Ante, pp. 743, 744. 
 
 W But this rule is confined in New York 
 to the solicitor on record. An atfilnvit 
 may be sworn to before iiny projier otVu'cr, 
 although he is counsel for one "I' the par- 
 ties, or is a purtner of the solicitor in the 
 Ciiuse. The I'eople v. Spahling. 2 I'aige, 
 326. M'Laien v. Chavrier, 5 l':iige, 6.')0. 
 
 11 In re Hogan, 3 Atk. 812; but see ante, 
 p. 749. 
 
 12 3 Benv. 290; llopkin r. Ilopkin, 10 
 Hiire Ap. 2; and see cases collected, 2 G 
 1*. Coop. t. CoU. 174, n.
 
 892 
 
 KVIDENCE. 
 
 Roforo other 
 ruiK-tiouaries 
 
 c'.\xn.§io cause tlio.v hnd boon sworn Lotbro :i solloitor -who aotod as clork to 
 tho ]>laintitr's solioitor; but au aOidavit may bo sworn before a 
 conunissionor aotiuij; as a olork (o the plnintill" in tlio cause, wlicre 
 tho i)laiutirt", tbouo-h a solioitor, (U)os not act as sucli in the cause.^ 
 It is not irro<j:uhir to swear an afHdavit before a solioitor, to Avhoni 
 it lias boon sent for the ])ur|)Oso of o-ettinti; it sworn by the solioitor 
 of tlio applicant, and who is the agent of the latter for that pur})ose 
 oidy.'- 
 
 The Court of Chancery is also in tlie habit of receiving aftida- 
 vits made by parties resident out of the jurisdiction, though not 
 sworn to boibi-e any of the functionaries before referred to, pro- 
 vided it is shown that the i^ersons before whom they are sworn 
 arc pei-sons who, by the law of the country in which the affidavit 
 is sworn, are authorized to administer an oath, and the signature 
 of such person is ])roiiorly vcriiied.'^ Thus, in Chicot v. Lequesne^ 
 the Court ordered an affidavit to be sworn before a notary public 
 in Amsterdam, with the intervention of a proper magistrate, if nec- 
 essary, by the law of Holland, to the administration of the oath. 
 
 Although the Court will, in cases of this description, give credit 
 to the fact, as certified under the seal or signature of a notary 
 public or other person authorized to administer an oath,^ it will re- 
 quire some evidence that the person, whose seal or signature is 
 affixed, actually fills the character he assumes. This may be ef- 
 fected, either by the production of an affidavit by some person 
 resident in this country who can depose to the fact of his filling 
 that character, or by the certificate of some British minister or 
 consular agent, or of some public officer of the country in which 
 the transaction took place, competent to give such certificate ; and 
 in the latter case, the certificate must be verified by the qertificate 
 of some -British minister, or consular agent, or by the affidavit of 
 some impartial person, cognizant of the fact that such public officer 
 is what he assumes to be.° 
 
 Proof of their 
 
 assumcfl 
 
 character. 
 
 1 Per Turner L. J. in Foster v. Harvej-, 
 3 N. K. 98; iiffirming S. O. 11 W. K. 899, 
 V. C. W.; diss. Knight Bruce L. J. 
 
 2 Re, Gregg, Re Prance, L. K. 9 Eq. 137, 
 M. R. 
 
 2 An affidavit taken before a ISIaster of 
 the Court of Chancery in Xew Jersey, at a 
 place out of tiie State, will not be allowed 
 to be read in thiit Court; the Master has 
 no authority to take an atiidavit out of the 
 State. Lambert v. Maris, IlaUt. Dig. 173. 
 But an affidavit sworn to befor.' a Master 
 in Cliancery in another State, wlio was not 
 a commissioner appointed by the State 
 where the affidavit was offered, was held 
 regular, in Allen v. State Bank, 1 l)ev. & 
 Bat. 7; in Kamy v. Kirk, 9 Dana, 207, an 
 affidavit made out of the State was held 
 not admissible. 
 
 * 1 Dick. 1.50; see also Warren v. Swin- 
 burne, 9 .Jur. .510, Bail Court; Pinkerton v. 
 The Barnsley Canal Company, 3 Y. & J. 
 277, n; Hutcheon v. Mannington, 6 Ves. 
 823; Garvey v. Hibbert, 1 J. & W. 180. 
 
 If there is a difficulty in taking the affidavit 
 before the foreign authority, the Court 
 will, it seems, appoint a special Examiner, 
 and the evidence must be taken as a depo- 
 sition. Drevon v. Drevon, 12 \V. R. 60, V. 
 C. K. As to the mode of taking evidence 
 before an Examiner, see post, pp. UOietseq. 
 
 ^ Hutcheon v. Mannington, 6 Ves. 823; 
 see Raney v. Kirk, 9 Dana, 267, as to an 
 affidavit sworn to before a Justice of the 
 Peace of anotlier State. 
 
 c Haggett V. Initf, 5 De G., M. & G. 
 910; 1 Jur. N. S. 49; Re Earl's Trust, 4 
 K. & J. 300; Seton, 20; sec Re Davis, 
 L. R. 8 Eq. 98; Mayne v. Butler, 13 
 W. R. 12K. Thus, in Purkis v. Date, 
 M. K. in Chambers, 6 May, 1804, an affi- 
 davit was received and tiled, which had 
 been sworn before II., the clerk of the Cir- 
 cuit Court of Burton County, in the State 
 of Indiana, America; wlio had subscribed 
 his name to the jurat, and affixed thereto 
 the seal of tliMt Court; to which was ap- 
 pended a certilicate under the hand of A.,
 
 AFFIDAVITS AXD EX-PAETE EXAMINATIONS BEFORE EXAMINER. 
 
 893 
 
 An affidavit must be con-ectly intituled in the cause or matter in 
 which it is made ; ^ it will, however, be sufficient, if it was correctly 
 entitled when it was sworn, although the title of the cause may 
 have been subsequently altered by amendment.- Where a mis- 
 take occuiTed in the title of affidavits, by omitting the name of 
 one of the defendants, they were received, on its being shown by 
 affidavit that there was no other suit pending to which they could 
 relate;^ and where the names of the i^laintifls and defendants were 
 reversed, the Court allowed, the affidavits to be taken off the file 
 and re-sworn, and then filed without affixing fresh stamps.* In 
 another case," the affidavits were allowed to be made exhibits to 
 an affidavit jiroperly intituled. 
 
 An affidavit made in one cause or matter cannot be used, to 
 obtain an order in another cause or matter. The Court will, how- 
 ever, in some cases, specially direct this to be done : thus, where 
 affidavits have been filed in a cause proving a pedigree, they were 
 allowed to be used on the hearing of a petition under the Trustee 
 Ac;, 1850.« 
 
 After an affidavit has been read at the hearing by any i)arty, it 
 cannot be withdrawn without the consent of the other jiarties.'' 
 
 In all affidavits, the true place of residence, description, and 
 addition of every person swearing the same must be inserted.^ 
 This rule, however, will not apply to affidavits by parties in the 
 
 C.XXII.§10. 
 
 Fomi of 
 atiidavit. 
 
 Title. 
 
 Affidavit 
 made in one 
 cause, cannot 
 ordinarily be 
 used in 
 another. 
 
 "Withdrawal 
 of affidavit. 
 
 Names and 
 description of 
 deponents. 
 
 as Secretary of that State, and the seal 
 thereof, that 11. was such clerk, and was 
 authorized to administer oaths; iind a cer- 
 tificate, under the hand and seal of office 
 of the British acting Consul at Chicago, 
 that A. was sucli Secretary, and that his 
 signature and the State seal were genuine. 
 In Mayne v. Butter, 13 W. R. 128, V. C. 
 K., the verification of the .signature of a 
 foreign notary was dispensed witii; the 
 fund being small, and the solicitor person- 
 allv undertiiking to apply it; see also 
 Smith V. Davies, \V. X. (1808), 209; 17 W. 
 R. 69, V. C. yi. ; where the veritication 
 was dispensed with. In Levitt v. Lev- 
 itt, 2 H. & M. 026, a certificate under 
 seal of the Supreme Court of the United 
 State.s of America, was received as sufK- 
 cienl evidence that the ofhcial had power 
 to administer an oath. In Re Scriven, 17 
 L. T. N. S. 641, V. C. M., an affidavit 
 under the great seal of one of the United 
 States ot America, and attested by tiie 
 governor of the State, was received. In 
 Lees V. Lees, W. N. (1808), 208, M. K., 
 it appearing that the offici i| was named 
 in the list of judicial otTicers of the 
 United States, the affidavit whs received. 
 Where the atiidavit is sworn within the 
 dominions of the Crown, no verification 
 of the seal or signature of the official is 
 required. Havward r. Ste[)hens, 1 W. N. 
 31 M, V. C. S; 'Rt Go.ss, Lid.lall v. Nichol- 
 son, W. N. (18G6), 266; 12 .Jur. N. S. 595, 
 
 V. c. w. 
 
 I May V. I'rinsep. 11 Jur. 1032, V. C. K. 
 B. ; Mackenzie v. Mackenzie, 5 De G. & 
 
 S. 338; as to waiver of the irregularity, 
 see Blackmore v. Glamorganshire Canal 
 Company, 5 Russ. 151. Although in ordi- 
 nary cases, the Court will disregard the 
 miseutitling of a paper, which could not 
 hiive misled the opposite part^-, it is other- 
 wise as respects affidavits; because the 
 misentitling of an affidavit will exempt; 
 the defendant from the punishment of per- 
 jury, although his oath is false. Ilawley 
 V. Donnelly, 8 Paige, 415; see Stafford v. 
 Brown, 4 'Paige, 300. Where there are 
 several defendants and there is but one 
 suit pending between the plaiiitilf and the 
 defendant first named therein with others, 
 it is sufficient in the entitling of an affi- 
 davit, to entitle It in the mime of the pbtin- 
 tiff against the first defendant and others, 
 without setting forth the names of all the 
 defendants at length. White i'. He.ss, 8 
 Paige, 544. Under special circumstances 
 affidavits may be ordered to be filed though 
 not intituled in anv cause; Salvidge v. 
 Fulton, 20 L. T. N. S..300; V. C. M. 
 
 - lluwes V. Haniford, 9 Sim. 053. 
 
 3 Fisher v. ColTev, 1 .lur. N. S. 956, V. 
 C. W.; and see Re Harris, 8 ,Iur. N. S. 
 166, V. C. K. 
 
 ■» Pearson v. Wilcox, 10 Hare Ap. 35. 
 
 6 Re Varteg Ciiapel, 10 I lure Ap. 37. 
 
 " Re Pickance, 10 Ilaro Ap. 35; Jones 
 V. Turnlnill, /n re Tiirnbull, 17 .lur. 851, 
 V. C. W. ; which is ajiparenlly the same 
 ca.sc, under a difierent nauie. 
 
 ^ Prole V. Soadv, L. K. 3 Ch. Ap. 220, 
 L. C. 
 
 8 Ilinde, 451; Wyalfs P. R. 9.
 
 894 
 
 EVIDKNCE. 
 
 C.XXII.510. 
 
 Sfust be cx- 
 prossed in 
 first pi'rson. 
 
 Must express 
 that (lepoiieiit 
 makes oath. 
 
 Affidavits to 
 be divided 
 into num- 
 bered 
 
 paragraphs ; 
 and each 
 statement to 
 show means 
 ofknowledge. 
 
 Scandalous 
 and irrelevant 
 matter may 
 be ordered to 
 be expunged. 
 
 Impertinent 
 or unncces- 
 sarj' matter. 
 
 I'rmso : Avlio tn:iy describo tluMiisolvos, in tlu> nffidavlt, ms tlio nhoA'C- 
 n;imt.Ml |il:uutifV, ov (U'H.'Mil:ni(, willuxit spccilying any residence, or 
 addition, or other deserijition ; and even where a i)laintiiV so 
 described liiniself in an allichivit, and it appeared, npon ins]>ecting 
 tlie office copy of the bill, that no addition had been j^iven to him 
 in the bill, the affidavit was considered snfficient.'' In that ease, 
 also, there were st'veral plaintiffis, and the plaintiil" making the affi- 
 davit described liimself as "the above-named jdaintiffi;" whereas, 
 it was ol)Jected, tiiat he ought to have called himself "one of the 
 above-named plaintiffs;" but the objection was overruled. 
 
 All affidavits are to be taken and expressed in tlie first person 
 of the deponent:'- otherwise the solicitor, party, or person, filing 
 the affidavit, is not to be allowed the costs of preparing and filing 
 the same.'' 
 
 The affidavit must commence by stating, that the party "makes 
 oath and says :" for even though the jurat express that the party 
 was sworn, it will not be sufficient, unless the affidavit also state 
 that tlie party makes oath.^ 
 
 Every atHdavit must be divided into paragraphs, and every 
 paragra{)h numbered consecutively, and, as nearly as may be con- 
 fined to a distinct portion of the subject;^ and each statement 
 in an affidavit must show the means of knowledge of the person 
 making such statement.*' 
 
 An affidavit must be pertinent and mateiial,'' Scandalous and 
 irrelevant matter should be carefully avoided, and, if any is in- 
 serted, the affidavit may be ordered to be taken off the file ; ^ or if 
 the affidavit is intended to be used before the Court, the scandalous 
 matter may be expunged, by the same process as scandal in a bill 
 or other ])leading ; ^ or if it is intended to be used in Chambers, 
 a summons may be taken out to have the matter examined and 
 expunged.^" 
 
 If an affidavit contain imi)ertinent matter, or be of improper 
 length, the Coui't may, when it is used in Court, at once disallow 
 
 1 Crockett v. Bi.-hton, 2 Mad. 44G; and 
 see Boddiiigton v. Woodley, 12 L. J. Ch. 
 15, M. 11. 
 
 ' Or'l. XVIII. 1; see New Jersey Rule 
 in CliMiicerv, 71. 
 
 3 Uid. XVIII. 2; /n re Ilusbiind, 12 L. 
 T. N. h. 303, V. C. W , affidavits sworn 
 in America, were received, though ex- 
 pres^eil in the third peison. 
 
 •* Phill ps V. I'renlice, 2 Hare, 542; Re 
 Newton, 2 De G-, 1*'. & J. 3; Allen v. Tav- 
 l.r, L. R. 10 Eq. 52, V. C. J. In the case 
 of an iiflirmatiun, the wordi?, "do snlenm- 
 ly, s.ni ert-ly, and truly iitlirm an'l decare," 
 are usually substituted tor '' make oath 
 and sav." 
 
 5 1.5 & 18 Vic. c. 86, § 87. 
 
 « Urd. 5 I-"eb. Ifc61, r. 23; and see 
 Woodhatch v. Freeland, 11 W. It. 398, V. 
 C. K; Meach v. Cliappell, 8 I'liige, 135; 
 Sea lus. Co. v. Stebbins, 8 I'aige, 503. 
 
 7 See Meach v. Chiippcll, 8 Paige, 133. 
 
 8 (joddard V. P;irr, 2-i L. J. Ch. 783; 3 
 W. R. 633. V. C. K. ; Kernick v. Keruick, 
 12 W. R. 335, V. C. W. 
 
 '■* See mile, pp. 347, 354. It is cumpetent 
 for Ihe C'ouit, ui)on the mere e.xaniina- 
 tion of an idhdavit or other paper read be- 
 fore if, oil a niotjon, to onlei' scandalous or 
 impertinent maiter contained ii it to be 
 expunged without reference to a Master, 
 and to charge the [iroper party with the 
 costs. Powell V. KaiiH, 5 I'a'ge, 205. A 
 party who makes an affidavit to oppose a 
 motion, is only authorized to slate the 
 facts; anil it is scandalous aiul impertinent 
 to draw inference^ or state aivuments in 
 the affidavit, reflecting on the character 
 or impeaching toe motives of the adverse 
 party or his solicitor. I'owell v. Kane, 5 
 I'aige, 265. 
 
 10 Ord. XXXV. 60 ; ante, p. 354.
 
 ArriDAYITS AND EX-PARTE EXAMIXATIOXS BEFORE EXAMIKER. 
 
 895 
 
 the costs of the impi'oper part, or may disallow the costs of the 
 part which the Taxing Master may distinguish as being im- 
 proper;^ and where it is used in Chambers, the Judge may at 
 once disallow all unnecessary matter; and the part disallowed is to 
 be distinguished by the initials of the Chief Clerk in the margin.- 
 
 The aj)plication for the costs of impertinent matter in an affi- 
 davit should be made when the affidavit is used.^ The Court gen- 
 erally leaves it to the Taxing Master to determine wh:it i:»artofthe 
 affidavit is unnecessary : merely expressing an opinion that it is of 
 improper length.* 
 
 Affidavits ought to be foirly written upon foolscap j^aper book- 
 wise ; but the Clerks of Records and Writs may receive and file 
 affidavits written otherwise, if in their opinion it is, under tlie cir- 
 cumstances, desirable or necessary.^ The Clerks of Records and 
 Writs may refuse to file any affidavit in which there is any knife 
 erasure, or which is blotted so as to obliterate any word, or Avhich 
 is improperly written, or so altered as to cause any material dis- 
 figurement ; or in which there is any interlineation : unless the 
 person before whom it is sworn authenticate such interlineation 
 with his initials, so as to show that it was made before the affi- 
 davit was sworn, and to mark the extent of the interlineation.® 
 
 An affidavit in which there are interlineations or alterations, not 
 so marked, may, however, be filed Avith the consent of the solicitors 
 of all parties against Avhom it is intended to be used : such consent 
 being indorsed on the affidavit and signed by the solicitors.'' And 
 where two affidavits, by A. and B., were written on the same paper, 
 and there were unauthenticatcd alterations in the affidavit of A., 
 the document was allowed to be filed as the affidavit of B. : that of 
 A. being rejected,^ 
 
 Dates and sums may be written, either in words or in figures;^ 
 but every quotation should be placed between inverted commas. 
 
 Schedules referred to in an affidavit as " hereunder written," 
 
 1 Onl. XL. 9; a« to tliis order, see 
 Moore V Smith, 14 Beav. 3U3, S'M; Mavor 
 of Berwick v Miiriav, 7 De li., U. & G., 
 4'j7, 514, 015; 3 .Jur.' N. S. 1. u; Hanslip 
 f. Kitf.ii, 8 .lur. X. S. 635, i-41, V. C. S. ; 
 il/ 1113, I.. C; Jie. F;irrinf;toii, 33 Beav. 
 34(j; (ju<'st V. bmyihc, L. K. 5 Cii. Ap. 551, 
 658. L. .J a.; Jit Skidinore, 1 .lur. N. S. 
 6!)t5; 3 W, K. 584, V. C. S; Scotiisli 
 Union Insurance Company *•. Steele, 9 L. 
 T. N. S 077, V. ('. W.; (inte, p. 3J0. If a 
 solicitor is compelled to piij- the costs of 
 expiin;;inf{ scan^lalous or impertini'nt mat- 
 ter, he has no le{,'al or eipiiialile cl lini 
 upon iiis client to relund the amount. 
 Powell V. Kane, 5 Paige, 2G5. l*"or form 
 of orler, t-ee Se'on, H'J, No. 17. 
 
 a Old. XL. 10. 
 
 8 See Ord. XL. 9; Horner v. Wheel- 
 wrifihf, 2 .Jur. N. S 367, V. C. S. 
 
 * Moon- V. Smith, 14 Heav. 3!).3, 390; Re 
 Kadclille, Sctou, 89, No. 17 ; Jie Skidmoro, 
 
 r.xxn.§io. 
 
 Costs thereof: 
 when to be 
 applied for. 
 
 Affidavits : 
 how to be 
 written. 
 
 Erasures and 
 interline- 
 ations. 
 
 Consent to 
 tile adidavit, 
 containinj^ 
 unauthenti- 
 cated inter- 
 lineations or 
 alterations. 
 
 Dates and 
 sums. 
 
 Schedules. 
 
 1 Jur. N. S. 696, V. C. S.; Hanslip v. Kit- 
 ton, 8 .lur. N. S. 835, 841, V. C. S ; on 
 appenl,?'i. 1113; Scottish Union Insurance 
 Company v. .Steele, ubi sup.; Guest v. 
 Smvthe, L. It. 5 Ch. Ap. 551, 558, L. J. G. 
 
 6"Ord. 6 March, 1800, r. 10; Biaitli- 
 waite's Uatlis in Chan. 42. 
 
 fi Ord. I. 36; and see 15 & 16 Vic. c. 86, 
 § 25. 
 
 T Braithwaite's Pr. 340. But an irregu- 
 larity in the jurat cannot be waived, see 
 ]jo.if, p. 897. 
 
 » Gill V. Gilbard, 9 Hare A|). h'>. 
 
 '-' Th"' iiresent practice in the Record and 
 Writ Clerks' Office of ..llo wing alii. lavit* to 
 be tiled, notwiihstaudiiig that dates and 
 sums lire written ttierein m (iiiures, instead 
 of ill wonl*', was adopted w.Ih the sauction 
 of Lord ("hancellor Camphell. \ previou.s 
 usage ill the office to the conir^ry was 
 recognized in ('r> ik v. Cro 'k, 1 lur. N. S. 
 C54, V. C. S. ; Braithwaite's Pr. 340.
 
 896 
 
 EVIDENCE. 
 
 rxxTl.§io. should 1)0 plai-oil aftor the jurat; nud the coinmissiouev, or other 
 jiorson botbro whom the atlidavit is swoni, must sit2,n his name at 
 the end of eaeh sehedule. If a schedule is j)laoed before the jurat, 
 it should not be referred to as " hereunder Avritten," but as " the 
 soheilule (or, first, ike, sehedide) set forth in this my affidavit." 
 The schedules may also be embodied in the atlidavit.^ 
 
 Alterations in schedules, or in accounts made exhibits to affi- 
 davits, should be authenticated in the same manner as in the body 
 of the affidavits.- 
 
 A document may be referred to in an affidavit, either as an ex- 
 hibit, thus: "produced and shown to me at the time of swearing 
 this my affidavit, and marked -with the letter A," or as "hereunto 
 annexed." If " produced and shown," the document is not filed 
 with the affidavit ; if " hereunto annexed," the affidavit cannot 
 l)rt)i)erly be filed without it ; and it is therefore generally more 
 convenient not to refer to it as " hereunto annexed ; " ^ and if in- 
 tended to be used in Chambers, it must not be so referred to.* 
 
 Any document referred to, must be distinguished by some mark 
 placed ui)on it, and signed by the person before Avhom the affidavit 
 is sworn .^ 
 
 It is the usual practice, in all cases, to write the short title of 
 the cause or matter on the exhibit; and this must be done in the 
 case of documents made exhibits, and intended to be used in 
 Chambers." 
 
 Where a document is refei-red to as being produced and sho-\vn 
 to the deponent, the person before Avhom the affidavit is sworn 
 must inquire whether the deponent has seen the document, and is 
 aware of the contents thereof; but this need not be done where 
 the document is referred to as hereunto annexed: the document 
 being annexed at the time the affidavit is sworn.'' 
 
 "Where one party has proved written documents in a cause, the 
 other side has no right, upon that ground, and in the absence of 
 special circumstances,^ to require them to be produced before the 
 hearing; unless, perhaps, where the affidavit proving them sets 
 them out verbatim:^ for a party can have no right to see the 
 strength of his adversary's case, or the evidence of his title before 
 the hearing.^" The documents may, however, be ordered to be pro- 
 duced, in order that the other side may cross-examine upon them." 
 Jurat. The jurat should be written at the end of the affidavit, and is 
 
 usually placed at the right-hand corner ; it may, however, be writ- 
 
 Alterations in 
 schedules, or 
 in exhibits. 
 
 Distinction 
 
 Iictweon 
 
 liocunionts 
 
 annexed and 
 
 documents 
 
 exhibited. 
 
 Identifying 
 documents 
 referred to. 
 
 Certificate 
 on exliibit. 
 
 Production of 
 exhibit to the 
 deponent. 
 
 Production of 
 exhibits alter 
 proof. 
 
 1 Braithwaite's Pr. 341. 
 
 2 See Kcgul. 8 Aug. 1857, r. 10. 
 
 3 Braithwaite's Pr. 341. 
 
 4 Kegul. 8 Aug. 1857, r. 11; and see 
 Ord. XXIV. 3. 
 
 5 Ilewetson v. Todhunter, 2 Sin. & Gift. 
 Ap. 2. 
 
 G Kegul. 8 Aug. 1857, r. 12. 
 
 ' Braitliwaite's Pr. 341. 
 
 8 Lord V. Colvin, 2 Drew. 205; 5 De G., 
 
 M. & G. 47; 18 Jur. 253; see also For- 
 rester V. Helme, ISPClel. 558. 
 
 '•* Ilodson V. Earl of Warrington, 3 P. 
 Wms. 34. 
 
 1" Davers v. Davers, 2 P. Wms. 410; 
 Hodson V. Earl of Warrington, ubi sup.; 
 Wiley V. Pistor, 7 Ves. 411; Fencott v. 
 Clarke, 6 Sim. 8; Lord v. Colvin, ubisup.; 
 Greslev, 192; anle^ p. 885. 
 
 11 Bell V. Johnson, 1 J. & H. 682.
 
 ATFIDAVITS AND EX-PARTE EXAMINATIONS BEFORE EXAMINER. 
 
 897 
 
 ten on either side of the page, or, if necessary, in the margin ; hnt 
 not on a page upon wliich no part of the statements in the affidavit 
 appears.-^ It must also correctly express the time when, and the 
 place where, the affidavit is sworn, including the name of the city, 
 borough, or county.^ 
 
 The dejionent must sign his name, or make his mark, at the side 
 of the jurat : not underneath it.* The person before whom the 
 affidavit is sworn must sign his name at the foot of the jurat ; to 
 which must be added his full official character and description, not 
 necessarily, however, in his own handwriting.* 
 
 If the deponent be a marksman or blind, the affidavit must be 
 first truly, distinctly, and audibly read over to him : either by the 
 person before whom the affidavit is sworn, or by some other per- 
 son. In the first case, it must be expressed in the jui-at that the 
 affidavit was so read over, and that the mark or signature was 
 affixed in the presence of the jjerson taking the affidavit : in the 
 second case, such other person must attest the mark or signature, 
 and must be first sworn that he has so read over the affidavit, and 
 that the mark or signature was made in his presence, and this must 
 be expressed in the jurat.^ 
 
 If the deponent be a foreigner, the contents of the affida\dt 
 must be interpreted to him ; and the interpreter must be sworn 
 that he has truly, distinctly, and audibly done so, and that he will 
 truly interpret the oath about to be administered, and then the 
 deponent may be sworn ; and that these formalities have been 
 complied with, must be expressed in the jurat.® 
 
 Fonnalities of a similar kind, by which it may appear that the 
 deponent has fully understood the contents of his affidavit, before 
 he is sworn, must be adopted in the case of a deaf, or deaf and 
 dumb person, or in other similar cases.'' 
 
 c.xxn.§io. 
 
 Signature 
 and attesta- 
 tion. 
 
 Mark?men 
 and blind 
 men: 
 
 special jurat. 
 
 Foreigners. 
 
 Deaf and 
 dumb per- 
 sons. 
 
 1 Braithwaite's Pr. 342. 
 
 2 Jbid. ; 18 & 19 Vic. c. 134, § 15, Ord. 
 IV.; but see Gates v. Buckland, 13 W. K. 
 67, V. C. S. 
 
 * Anderson v. Stather, 9 Jur. 1085, V. 
 C. K. B. 
 
 * Braithwaite's Fr. 342; but see Gates 
 V. Buckland, 13 W. R. 67, V. C S. The 
 words " before me " must precede the com- 
 missioner's signature. See Grah;im v. 
 Ingleby, cited Braithwaite's Oaths in 
 Chan. 46. For forms of jurats, see Vol. 
 III. 
 
 6 If the deponent is blind, the officer 
 should certify in the jurat, that the affi- 
 davit was carefully and correctly read over 
 to him, in tlie |)resence of such officer, be- 
 fore he swore to the same. Matter of 
 Christie, 5 I'aigc, 242. tjo where the affi- 
 ant lias been found by tiie inquisition ot 
 a jury to be a lutjatic, the oflicer before 
 
 VOL I. 
 
 whom the affidavit is sworn, should state 
 in the jurat, that he has examined the 
 deponent for the purpose of ascertaining 
 the state of his raiud, and that he was ap- 
 parently of sound mind, and capable of 
 understanding the nature and contents of 
 the affidavit. Matter of Christie, 5 Paige, 
 242. Tlie attestation should be written 
 near the jurat. Wilson v. Clifton, 2 Mare, 
 535; 7 Jur. 215; Braithwaite's Pr. 380. 
 Where a marksman signed an affidavit 
 with his name at length, his hand having 
 been guided on the occasion, it was ordered 
 to be taken off the file. i; Christo- 
 pher, 11 iSim. 409. For forms of special 
 jurats, see Vol. III. 
 
 •> Braithwaite's Oaths ill Chan. 35. For 
 form'', see Vol. 111. 
 
 " Reynolds v. Jones, Trin. Term, 1818; 
 Hraitliwaite's Pr. 383. For forms, see 
 Vol. HI. 
 
 57
 
 898 
 
 EVIDENCE. 
 
 r.xxiT.§io. 
 
 Irn^jiularity 
 in jurat 
 cannot bo 
 waived. 
 
 Omission in 
 jurat to 
 affidavit 
 sworn abroad. 
 
 Irregularity 
 in aftidavit of 
 service. 
 
 Aflidavit not 
 to be u.sed till 
 tiled. 
 
 Tlio oath must bo administorod in a reverent manner;^ and, if 
 not athninistered in the usual lonn, tlie authority for administering 
 it should aj)j)ear in the Jurat.'- 
 
 Cjuakers, JNIoravians, and Separatists <;ive their evidenee on 
 tlieir solemn aihrmation;" and any person who objects, from con- 
 seientious nuitives, to he s\\n)rn, may no"\v give his evidenee upon 
 his solemn at!irniation ;■* but the ])erson quahtied to take the aftirma- 
 tion, must be satisiied of the sincerity of tlie objection, and this 
 must a]>pear in the attinnat.^ 
 
 It is an universal jirineiple in all Courts, that jurats and affi- 
 davits, when contrary to i)raetiee, are open to objection in any stage 
 of a cause. This does not dei)end u])on any objection whicli the 
 parties in a particular cause may waive, but upon the general rule 
 that the document itself shall not -be brought forward at all if in 
 any respect objectionable with reference to the rule of the Court. 
 Where, therefore, there was an irregularity in the jurat of an 
 answer, a motion by the plaintiif to take it off' the file, on the 
 ground of such irregularity, was allowed, notwithstanding that he 
 had taken an office copy of the answer.^ Where, however, in the 
 case of an affidavit sworn abroad, before a notary, the place where 
 it was sworn Avas omitted in the jurat, it was ordered to be filed : 
 the Vice-Chancellor observing, that he thought the Court must 
 assume that the notary was acting in pursuance of his duty, and 
 thaj, he would not pei'form a notarial act out of the jurisdiction in 
 which alone he had aiithorityJ 
 
 It is to be observed, particularly, that every affidavit of service 
 of writs, or of orders, upon which process of contempt is to be 
 founded, must truly and fully prove good service ; and that if the 
 plaintiiF's name, the Court, the return of the writ, or any thing 
 material, be omitted, no attachment can be thereupon regularly 
 issued : for, until a due service be shown, no contempt appears to 
 the Court.* 
 
 Before any affidavit is used for any purpose, it must have been 
 filed in the Office of the Clerks of Records and Writs, and an 
 office copy be produced.^ Sometimes in vacation, however, when 
 
 1 Ord. XIX. 14; ante, p. 887, note. 
 
 2 1 & 2 Vic. c. 105; see Braithwaite's 
 Pr. 3S3, 384. For forms, see Vol III. 
 
 3 7 & 8 Will. III. c. 34, § 1; 8 Geo. I. 
 c. 6, § 1 ; 22 Geo. II. c. 30, § 1 ; ib. c. 46, 
 § 36; 9 Geo. IV. c. 32, § 1 ; 3 & 4 Will. 
 IV. c. 49; ib. c. 82; 1 & 2 Vic. c. 77; and 
 see ib. 105. For forms of affirmation in 
 these cases, see Vol III. 
 
 * Ante, p. 887, note. 
 
 6 17 & 18 Vic. c. 125, § 20. Where the 
 afEduvit is on affirmation, and the person 
 taking it does not certify tlnit the aliirni- 
 ant is a Quaker or other person allowed 
 
 by law to make affirmation, the affidavit 
 can be of no avail. Kinggold v. Jones, 1 
 Bland, 90. For forms, see Vol. III. 
 
 6 Filkingfon v. Himsworth, 1 Y. & C. 
 Ex. 612, 616; but see Braithwaite's Pr. 48, 
 and ante, pp. 743, 895. 
 
 7 Meek v. Ward, 10 Hare Ap. 1 ; Gates 
 V. Buckland, 13 W. K. 67, V. C. S. 
 
 8 Hinde, 453; Ord. XXVIII. 8. 
 
 9 Onl. XVIII. 5; Jackson v. Cassidv, 
 10 Sim. 326; Uarleyt;. Nicholson, 1 Dr. & 
 War. 66, 70; Elsey v. Adam.s, 4 Giff. 398; 
 9 Jur. N. S. 788; see Bloodgood v. Clark, 
 4 Paige, 574, 576.
 
 AFFIDAVITS AND EX-PARTE EXAMINATIONS BEFORE EXAMINER. 
 
 899 
 
 Expedition 
 copies. 
 
 Time -within 
 which affi- 
 davits to be 
 filed, on 
 interlocutory 
 applications. 
 
 the matter was pressing, the Court has taken affidavits into its C.xxil §10. 
 own hands, and then considered them as filed.^ 
 
 No affidavit, filed on or after the first day of Easter Term, 1861, 
 is to be used as evidence, on any proceeding in any cause or 
 matter, unless there be wiitten at the foot thereof, at the time of 
 filing the same, a memorandum stating by whom the same is filed, 
 which memorandum is to be in the fonn following, or as near 
 thereto as circumstances will admit (that is to say) : " This affi- 
 davit is filed on the part and behalf of the plaintifis " (or, " of the 
 •defendants M. and N.").^ 
 
 Sometimes, when expedition is required, the solicitor filing the 
 affidavit, instead of waiting until an office copy is made by the 
 Clerk of Records and Writs, takes a copy of the affidavit to 
 the office, at the same time that he takes the original affidavit 
 to be filed, and then the Clerk of Records and Writs examines 
 and marks the copy as an office copy, at the same time that he 
 files the original.^ 
 
 Where affidavits are filed in support of interlocutory applica- 
 tions, or to be used in proceedings under decrees, there is no 
 particular time fixed for filing them ; but they should be filed in 
 time enough, before the application or proceeding on which they 
 are intended to be used is brought on, to enable the adverse party 
 to obtain copies: otherwise, the application or proceeding will 
 generally be directed to stand over ; and where it is intended to 
 make use of affidavits filed before the particular petition, notice 
 of motion, or summons, was presented, served, or issued, express 
 notice of such intention should be given in due time to the op- 
 posite party, as he is not bound to search for affidavits filed before 
 those respective periods.^ 
 
 The party filing an affidavit should, in all cases, take an office 
 copy of it, except in the case of an affidavit filed by a claimant 
 coming in pursuant to advertisement, under a decree : in which 
 case, the office copy is to be taken by the party prosecuting the 
 cause, unless the Judge otherwise dii-ects.^ Upon filing an affi- 
 davit, it is the usuid practice of solicitors in all cases to give notice 
 of the filing to the adverse party ; and such notice must be given 
 by a claimant in the exceptional case just referred to.® 
 
 Formerly, any party who required a copy of an affidavit, had to 
 obtain an office copy at the Record and Writ Clerks' Office; but 
 now, where any party re(piires a copy of an affidavit file<l by the 
 adverse party, he is to make written appUcation to the party by 
 
 1 Per Lord LanKdalc, in Attorney-Gen- XXIX., Proceedinr/s in Chnmbers ; (Jliap. 
 
 eral v. Lewis, H I'.eav. 179. XXXV. § 2, Mulinns; § 3, Ptlitums. 
 
 ■i Ord. 5 Fel.., 1h;1. r. 18. ^ Ord. XXXVI. 1; Onl. XXXV. 39. 
 
 « HraithwaiteH I'r. 4'Jl. " Ord. XXXV. 38. For form of notice, 
 
 « See Ord. XXXV. 27; and post, Chap. see Vol. 111. 
 
 Office copies: 
 by whom to 
 be taken. 
 
 Notice of 
 filing affi- 
 davit. 
 
 Copies of 
 affidavits: by 
 whom to be- 
 furnished.
 
 i)00 
 
 EVIDENCE. 
 
 How copies 
 furnished by 
 parties are to 
 ite written, 
 and indorsed. 
 
 (\XXII.§10. Avhom the copy oxight to be delivered, or his solicitor, with an 
 uiulertakiuii; to pay the j)r()per charges;^ and thereu})on such 
 party, or his solicitor, is to make such copy,'^ and deliver the same 
 on demand within tbrty-eiLrht hours ; ^ and is to produce the office 
 coj)y in Court, or in Chambers, when required.* In cases of ex 
 parte applications tor injunctions, or writs of 9ie exeat rcffno, the 
 copies must be delivered innnediately upon the receipt of the 
 request, or within such time as may be specified therein, or may 
 have been directed by the Court.^ 
 
 All copies to be delivered by parties or their solicitors, are to 
 be written on paper of a convenient size, Anth a sufficient margin,® 
 and in a neat and legible manner, similar to that which is usually 
 adopted by law stationers ; and, unless so written, the parties or 
 solicitors delivering them will not be entitled to be paid for the 
 same.' The folios of all copies are to be numbered consecutively 
 in the margin, and the name and address of the party or solicitor, 
 by whom the same are made, is to be indorsed thereon, in like 
 manner as upon the proceedings in the Court ; * and such party 
 or solicitor is to be answerable for the same being true copies of 
 the originals, or of the office copies, of which they purport to be 
 copies.® 
 
 "Where any party or solicitor who is required to deliver any 
 such copy, either refuses or does not deliver the same within the 
 period allowed for that purpose, the person making such applica- 
 tion may procure a copy from the office in which the original has 
 been filed, in the same way as if no such application had been 
 made to the party or soUcitor; and, in such case, no costs will be 
 due or payable to the party or solicitor so making default, in 
 respect of the copy so applied for.^° 
 
 If a party or solicitor by whom any copy ought to be delivered, 
 refuses, or does not deliver the same, within forty-eight hours, an 
 addition of two clear days is to be made to the period within 
 which any proceeding which may have to be taken after obtaining 
 such copy ought to be taken ; so that the person requiring such 
 copy may be as little prejudiced as possible by the neglect of the 
 party or solicitor to deliver such copy.-^^ 
 
 The Taxing Master is not to allow any costs in respect of any 
 copy so taken, unless it shall appear to him to have been requisite, 
 
 Proceedings, 
 in case of 
 refusal or 
 neglect to de- 
 liver copies. 
 
 Effect of 
 omitting to 
 deliver copies. 
 
 "When costs 
 of copies will 
 not be 
 allowed. 
 
 1 Ord. XXXVI. 4. The ordinarj' 
 charges are IJrf. per folio to a pauper, and 
 id. per folio to other persons. Kegul. to 
 Ord. Sched. 4. For forms of application 
 and undertaking, see Vol. III. 
 
 2 Ord. XXXVI. 5. 
 8 Ord. XXXVI. 6. 
 * Ord. XXXVI. 10. 
 » Ord. XXXVI. 9. 
 
 6 Foolscap paper, with a quarter mar- 
 gin, is ordinarily used. 
 V Ord. XXXVI. 11. 
 
 8 See cmte, pp. 453, 454; Ord. III. 2, 5. 
 
 9 Ord. XXXVI. 8. Each copy delivered 
 should include a copy of the jurat, and 
 should state the day on which the original 
 aflidavit was filed. 
 
 10 Ord. XXXVI. 12. 
 
 11 Ord. XXXVII. 16.
 
 AFFIDAVITS AND EX-PAETE EXAMINATIONS BEFORE EXAMINER. 
 
 901 
 
 and to have been made with due care, both as regards the con- 
 tents and the writing thereof.^ 
 
 Parties requiring copies of affidaA-its should proceed in the 
 manner above pointed out; but office copies of affidavits will, 
 nevertheless, be made by the Clerks of Records and "Writs, at any 
 time, for any person, whether party to the cause or matter or not, 
 who may prefer that course, at the risk of such copies being dis- 
 alloAved on taxation.^ 
 
 Expenses incurred, in consequence of affidavits being prepared 
 or settled by counsel, are to be allowed only when the Taxing 
 Master, in his discretion, and on consideration of the special cir- 
 cumstances of each case, thinks such expenses properly incurred ; 
 and in such case, he is to be at liberty to allow the same, or such 
 parts thereof as he may consider just and reasonable, whether the 
 taxation be between solicitor and client or between party and 
 party.* 
 
 Where a witness, of whose e^ddence a party desires to avail 
 himself on the hearing of a cause in which issue has been joined,* 
 refuses to make an affidavit, the i^arty may examine him ex 
 parted before an Examiner.^ The attendance of the witness is 
 procured, and his examination conducted, in the same manner as 
 in the case of other examinations before the Examiner ; '^ but no 
 party has a right to be present at such examination, except the 
 party producing the witness, his counsel, solicitor, and agents.^ 
 When the examination is concluded, the Examiner transmits it to 
 the Office of the Clerks of the Records and Writs : ha\ang marked 
 it as taken ex parte; and it will be deemed and dealt with by 
 them as an affidavit.^ The party requiring the attendance of the 
 witness, whether a party or not, must give to the opposite party 
 forty-eight hours' notice at least of his intention to examine such 
 
 1 Ord. XXXVI. 13. 
 
 2 See Braithwaite's Pr. 494. 
 
 3 Ord. XL. 17. Costs of settling an 
 affidavit (which was an eclio of the bill) 
 bv counsel were allowed in Davies v. 
 Marshall (No. 2), 1 Dr. & S. 564; 7 Jur. 
 N. S. 669. 
 
 •* An ex parte examination cannot, in 
 strictness, be had where a notice of motion 
 for decree has been f^iven. Ante, pp. 823, 
 824. In Smith v. Baker, 4 N. K. 321, V. 
 C. W.. 2 H. & M. 498, however, it was 
 allowed to be used, on terms as to cross- 
 exammation thereon. 
 
 fi Ord. 5 Feb., 18G1, rr. 4, 6. 
 
 8 See (Jresley, Ivj. Kv. (.\m. ed.) 50 et 
 teq. Under tiie practice heretofore exist- 
 ing in New York, each party had a rifjht 
 to select his own Examiner, and the Court 
 would not, on motion of the opposite party, 
 interfere with thiit rif^ht. liut a direct 
 examination mif^ht be had before one 
 Examiner, and a crosg-examination before 
 
 C.XXII.§10. 
 
 Office copies 
 may be ob- 
 tained, in any 
 case, at the 
 Record and 
 Writ Clerks' 
 Office. 
 
 Costs of prep- 
 aration or 
 settlinrr of 
 affidavits by 
 counsel. 
 
 Ex parte 
 examination 
 of person 
 refijsiu}^ to 
 make affi- 
 davit. 
 
 Notice of 
 examination. 
 
 another. Troup v. Haight, 6 John. Ch. 
 335. 
 
 The Circuit Courts of the United States 
 have power to appoint Examiners in suits 
 in Eouity, and it is a matter of discretion 
 whetner they be standing Examiners, or 
 be designated as the occasion arises for 
 their services in anv cause. Van Hook v. 
 Pendleton, 2 Blatch. C. C. 85; ~H\\ of the 
 United States Equity Rules. Hut in the 
 Circuit Courts of the United States, an 
 oral examination of witnesses before an 
 Examiner, previous to the amendment of 
 the 67lh Kule in Marcli, 1H(!2, was irregu- 
 lar, unless there was an agreement between 
 the parties to waive written iiitermgato- 
 ries; and such agreement ought to l)e in 
 writing. Van Hook v. Pendleton, 2 Blatch. 
 C. C. 85. 
 
 "< As to examinations before an Exam- 
 iner, sec past, p. 903 et teq. 
 
 8 Ord. 6 Feb., 1861, r. 6. 
 
 » Ibid.
 
 W'2 
 
 EVIDENCE. 
 
 1\XX1I.§10. 
 
 Aftichivits 
 aud deposi- 
 tions: whou 
 to bo printod. 
 
 lliiw printed. 
 
 Copy for the 
 printer. 
 
 Where issue 
 joined. 
 
 On motion 
 or decree. 
 
 Application 
 to have 
 affidavits and 
 depositons 
 printed : 
 when to be 
 made. 
 
 witness; and such notice must contain the name ami (loscription 
 of the witness, and tlic time and place of tlie examination: unless 
 the Court thinks fit to dispense Avith such notice.^ 
 
 All affidavits and depositit)ns to be used on tlie hearing of any 
 cause, or motion for a ilecree, must be printed i'^ except such as 
 have been, tiled for the i)urpose of any interIocutt)ry application, 
 and of which otlice copies have been taken.* 
 
 Such affidavits and depositions are printed under tlie direction 
 and su])enntcndence of the Clerks of Records and Writs, upon 
 pai)cr of the kind and dimensions, and with the type prescribed 
 for the ])rinting of Bills, and in all other respects in such form and 
 manner as the Clerks of Kecoi-ds and Writs deem most conven- 
 ient.* 
 
 Solicitors and parti(\s, on filing affidavits required to be printed, 
 must leave with the Clerks of Records and Writs a fair copy of 
 each aflSdavit filed, written on draft paper, on one side only, and 
 certified by the solicitor or party to be a correct copy.^ 
 
 In a cause in which issue is joined, the Clerks of Records and 
 Writs will, upon the application of any party to the suit, cause 
 such aftidavits and depositions (other than depositions taken on 
 the oral cross-examination of witnesses who have made such affi- 
 davits) to be printed after the expiration of the time fixed for 
 closing the evidence ; and such last-mentioned depositions, after 
 the expiration of the time allowed for the oral cross-examination 
 of such witnesses.® 
 
 In a cause in which a notice of motion for a decree has been 
 given, the Clerks of Records and Writs will, upon the application 
 of any party to the suit, cause the affidavits filed on behalf of the 
 plaintiffs, the affidavits filed on behalf of the defendants, and the 
 affidavits of the plaintiffs in reply, to be printed after the times 
 respectively allowed for filing each set of such aflS,davits, and the 
 depositions taken on the oral cross-examination of the witnesses 
 who have made such affidavits, after such depositions have been 
 filed.' 
 
 It is desirable that the affidavits to be thus printed should be 
 all presented for filing together at one time, and, if possible, on the 
 last day of the time allowed for filing the same, that is to say, — 
 where issue has been joined : on the last day of the time fixed for 
 
 1 Ord. 5 Feb , 1861, r. 22 ; and see Ford 
 f. Tennnnt, 11 W. R. 275, M. R., where it 
 was held that this rule applies to ex parte 
 examinations. 
 
 2 Ord. 16 May, 1862, r. 1. This order 
 applies to cases where issue has been 
 joined, or notice of motion for decree 
 Berved, since the 18th June, 1862. 
 
 3 Ord. 16 Mav, 1*^62, r. 9. 
 < Ord. 16 May, 1862, r. 2. 
 
 5 Ord. 16 May, 18G2, r. 3. The copy 
 should have the usual margin on tlie lett- 
 hand side of each page. R. & W. Clerks' 
 Suggestions, No. 7. The certificate should 
 be uritteii on the left-hand margin of the 
 first page of each copy, before being left at 
 the office. /6. No. 8. For form of certifi- 
 cate, see Vol. III. 
 
 6 Ord. 16 May, 1862, r. 4. 
 
 7 Ord. 16 May, 1862, r. 6.
 
 VIVA VOCE EVIDENCE. 903 
 
 closing the evidence ; and where notice of motion for a decree has C.XXii.§ii. 
 
 been served : on the last day of each of the respective times al- *- >• — — ^ 
 
 lowed to the plaintiff and defendant for filing the affidavits ; and 
 that the fair copies left with such affidavits sliould be numbered 
 consecutively (at the top of the first page) in the order in which 
 it is desired that they should be printed.^ Where the foregoing 
 suggestion is complied with, the application to have the evidence 
 printed may be made at the time the evidence is filed.^ The ap- 
 plication to have any evidence printed, which has been taken orally, 
 may be made at any time after such evidence is filed : except that, 
 in cases where a time for taking any oral examination has been 
 specially fixed, and also in cases where issue has been joined, the 
 application is not to be made until the time fixed for taking the 
 examination, or for closing the evidence, has expired.^ A written 
 or printed application to have the e^ddence printed, must be made ; * 
 and it is desirable that the number of pi-inted copies of the evi- 
 dence which may be required for general use in the cause, should 
 be stated in such application.^ 
 
 Every party who files an affidavit, or causes depositions to be what printed 
 taken, must take fi-om the Clerks of Records and Writs a printed ^^P'^^ "^"^^ 
 copy of every affidavit filed by him, and of all such depositions : 
 for which he is to j^ay, in stamps, at the rate of twopence per folio ; 
 and unless such copy is taken, he is not to be allowed any thing in 
 the taxation of costs, in respect of such affidavit or depositions.* 
 As a rule, such printed copy will be ready for delivery within 
 forty-eight hours after the application to have the evidence printed 
 is made.'' 
 
 All parties are to be at liberty to take from the Clerks of Records and what 
 and Writs as many other printed copies of their own and of their ™ay be taken, 
 opponents' affidavits and depositions as tliey may require, on pay- 
 ing for the same, in stamps, at the rate of one penny per folio.* 
 These copies may be had at the same time as the official coj)y.^ 
 
 Section XI. — Of viva voce Evidence. 
 
 The viva voce examination of witnesses may take place, either I7ra voce. 
 before the Court, tlie Judge, or his Chief Clerk, in Chambers, or Xn'h'niuJ' 
 an Examiner of the Court, or an Examiner specially appointed. take place. 
 
 1 It. & W. Clerks' Suggestions, No. 2. 5 R. & W. Clerks' Suggestions, No. 6. 
 
 2 Ih. No. 3. f)r,l. 16 Mav, 1862. r. 6. 
 
 8 llj- No. 4. V K. & \v. (Berks' Suggestions, No. 6. 
 
 * I'rinted conies of the form of applica- 8 Ord. 16 Alay, 1S62, r. 7. As to the 
 
 tioti may be lia I, on aijpiicatioii at the allowances to solicitors, see r. 8. 
 
 divi.sioiiiii seat in tiie Kecord and Writ » I{. & \\. Clerks' Su^^gestions, No. 6. 
 Clerks' Office, lb. No. 9. For such form. 
 Bee Vol. 111.
 
 904 
 
 EVIDENCE. 
 
 r.x\ii.§n. 
 
 A tier issue 
 joined. 
 
 Taking 
 oxaniiiiation 
 acooniina: to 
 15 & It! Vie. 
 f. SG, by con- 
 sent or W 
 direction of 
 Court or 
 Judire. 
 
 According to 
 15 & l(i Vic. 
 c. 86, wit- 
 nesses ex- 
 amined by 
 ordinary 
 or special 
 Examiner of 
 the Court, in 
 the presence 
 of the parties. 
 Conduct of 
 examination. 
 
 Depositions 
 to be taken in 
 writing, and 
 read over to 
 the witness: 
 who is to sign 
 the same. 
 
 Whore issue lias been joiiietl, there can be no viva voce examina- 
 tion of witnesses in cliief for the purposes of the hearing, except 
 tlie t'.r parte examination before tlie Examiner, in maimer before 
 pointed out,^ and except the evidence as to ]>articnlar facts or 
 issues, if so directed by special order j'^ and all cross-examinations 
 of witnesses must take place before the Court itself at the hearing.' 
 The parties may, however, by consent in writing, which must be 
 filed in the Kecord and Writ Clerks' Office, agree to take the ex- 
 amination or cross-examination of any witness, in manner ])rovided 
 by the 15 & 16 Vic. c. SG;* and, further, the Court, or Judge in 
 Chambers, may dii-ect, that the examination or cross-examination 
 of any witness shall be taken in this manner, where by reason of 
 the age, infirmity, or absence out of the jurisdiction of the witness, 
 or for any other sufficient cause, it is expedient that such direction 
 should be given. Such direction may be obtained on application 
 to the Court, or the Judge in Chambers, on notice." 
 
 According to the Act, above referred to, all witnesses to be 
 examined orally are to be so examined by or before one of the 
 Examiners of the Court, or by or before an Examiner to be specially 
 appointed by the Court : ® the Examiner being furnished by the 
 plaintiff with a copy of the bill, and of the answer, if any, in the 
 cause ; and such examination is to take place in the presence of 
 the parties, their counsel, solicitors, or agents ; and the witnesses 
 so examined orally are to be subject to cross-examination and re- 
 examination; and such examination, cross-examination, and re- 
 examination, are to be conducted, as nearly as may be, in the 
 mode in use in Courts of Common Law, with respect to a witness 
 about to go abroad, and not expected to be present at the trial of 
 a cause.'' 
 
 The depositions so taken are to be taken down in wilting by 
 the Examiner : not ordinarily by question and answer, but in the 
 form of a narrative ; * and, when completed, are to be read over to 
 the witness, and signed by him ® in the presence of the parties, or 
 
 1 Ante, p. 901. 
 
 2 Ord. 5 Feb., 1861, r. 3. 
 
 3 Ord. 5 Feb., 1861, r. 7; BodgeriJ. Bod- 
 ger, 11 W. R. 80, V. C. K. Infirm wit- 
 nesses (r. 11), and suits to perpetuate tes- 
 timoiij' (r. 16), are excepted from this rule. 
 
 * Ord. 5 Feb., 1861, r. 10. For form of 
 consent, see Vol. III. 
 
 6 Ord. 5 Feb., 1861, r. 11. For forms 
 of notice of motion and summons, see Vol. 
 III. 
 
 6 The rules of Chancery in New Jersey 
 provide, that every person who shall be 
 appointed an Examiner of the Court of 
 Chancery shall, before he enters upon the 
 execution of his office, take, before the 
 Chancellor or Clerk, an oath or affirmation 
 
 impartially and justly to perform all the 
 duties of the office, according to the best 
 of his abilities and understanding. Rule 
 13; see State v. Levy, 3 Har. &McH. 591. 
 
 7 15 & 16 Vic. c. 86, § 31. For the 
 mode in use at Law, see Chitty's Arch. 
 329-336. 
 
 8 See New Jersej' Rule 71 of Chancery 
 Practice. 
 
 'J In Pennsylvania, a deposition taken 
 under a commission need not be subscribed 
 by the witnesses. Moulson v. Hargrave, 1 
 Serg. & R. 201. In Kentucky, it is no 
 objection to a deposition that the witness 
 omitted to subscribe his name. Mobleyy. 
 Ilamit, 1 A. K. Marsh. 590. So in North 
 Carolina. Rutherford v. Nelson, 1 Hayw.
 
 VIVA VOCE EVIDENCE. 
 
 905 
 
 such of them as may think fit to attend ; but if the witness refuses 
 to sign, then the Examiner is to sign the depositions; and the 
 examiner may, upon all examinations, state any special matter to 
 the Court, as he shall think fit. It is in the discretion of the 
 examiner to put down any particular question or answer, if there 
 should appear any special reason for doing so; and any question 
 or questions which may be objected to are to be noticed or re- 
 ferred to by the Examiner in the depositions, and he is to state his 
 opinion thereon to the counsel, solicitors, or parties, and to refer 
 to such statement on the fiice of the depositions ; but he is not to 
 have power to decide upon the materiality or relevancy of any 
 question or questions. The Court deals with the costs of imma- 
 terial or irrelevant depositions as may be just.^ 
 
 ' There are two Examiners of the Court,- before whom the exam- 
 ination of witnesses is usually taken ; but where, on account of the 
 distance from London at which the witnesses reside,^ the pressure 
 of business,* or other sufiicient reason,^ the examination cannot be 
 conveniently taken before one of the Examiners of the Court, a 
 Special Examiner may be appointed ; but the Court is lan willing to 
 appoint a Special Examiner, except in cases of absolute necessity.® 
 Any fit person may be a Special Examiner ; but a barrister, or solic- 
 itor, is usually appointed.'' There was formerly a rule, that wit- 
 nesses residing more than twenty miles fi'om London could not be 
 compelled to attend before an Examiner in London ; but this rule 
 no longer exists.^ 
 
 The application for the appointment of a- Special Examiner may 
 
 C.XXII.§11. 
 
 105 ; Murphy v. Work, 1 Ilayw. 105. So 
 in Virginia. Barrett v. \V:\tBim, 1 Wash. 
 372. So in Alubaina. Wiggins i;. Prvor, 
 3 Porter, 430. A deposition taken under 
 a commission to take the deposition of 
 John Priestly, may be read in evidence, 
 though signeil .lohn G. Priestly. Brooks 
 V. M'Kean, Cooke, 162; see Breyfogle v. 
 Becklev. 10 Serg. & R. 264. 
 
 1 15 "& 16 Vic. c. 86, § 32; Surr v. 
 Walmsley, L. K. 2 Eq. 439, V. C. W. The 
 Rules of Practice for the Courts of Kqiiity 
 of the United States prescribe that eitlier 
 party may give notice to the other tliat he 
 desires the evidence to be ailduced in the 
 cause to be taken orally, and thereupon 
 Bubttantially the same course of proceed- 
 ing is to be pursued as that directed bv 
 15 & 16 Vic. c. 86, §§ 31. 32. stated in the 
 te.xt. Rule 95,!imending I'ule C", see Vol. 3, 
 Ap()'x. By the same rule it is prescribed 
 thaf'Noticc shall lie given by the re>|)ective 
 counsel or solicitors to the oppoHite coun- 
 sel or solicitors or parties, of the time and 
 place of the cxumination, for such rea.son- 
 able time as the Kxamim-r m;iy ti,\ by order 
 in each cause." Under this rule ulso " testi- 
 mony may be taken on commission, in 
 
 the usual way. by written interrosatories 
 and cross-interrogatories, on motion to the 
 Court, in term time, or to a Judge in vaca- 
 tion, for special reasons satisfactory to the 
 Court or Judge." For formal parts of 
 depositions, see Vol. III. 
 
 2 Appointed under 16 & 17 Vic. c. 22; 
 see ante, p. 901, note. 
 
 8 Be Foster's Trusts, 2 W. R. 679, V. C. 
 K. ; Ogilby i'. Gregory, 4 W. R. 67, V. C. 
 \V. ; and see Rawlins v. Wickham, 4 Jur. 
 N. S. 990, V. C. S. 
 
 •1 Brennan v. Preston, 10 Hare Ap. 17. 
 
 5 Pillan V. Thompson, 10 Hare Ap. 76. 
 
 G Brocas v. Lloyd, 21 Beav. 519; 2 Jur. 
 N. S. 655; Altree v. Sherwin, 2 De G. & 
 J. 92; Townsend v. Williams, 6 W. R. 
 734, V. C. W. 
 
 ^ Henderson v. Phillipson, 17 Jur. 616, 
 V. C. W. ; Reed v. Prest, Kay Ap. 14; 
 and see 10 & 17 Vic. c. 22, § 2. His fees 
 are 5 guineas a day, iind 5.«. for his clerk. 
 Regul. to Ord. Schcd. 1; Payne v. Little, 
 21 Beav. 65. 
 
 8 Altree r. Sherwin, and Brocas*. Lloyd, 
 ubi sup., overruling Reed v. Prest, ithi sup. ; 
 and sec Townsend v. Williams, ubi sup. 
 
 Examiner 
 
 not to decide 
 on relevancy 
 of questions. 
 
 Special Ex- 
 aminers : 
 when ap- 
 pointed. 
 
 How 
 appointed.
 
 906 
 
 EVIDENCE. 
 
 \\ll.§ 11. 
 
 I'oiKtsitions 
 lo lit> wriltoii 
 l>v I'lxaininor. 
 
 l>i.-iTi>tion of 
 Kxaminer. 
 
 Attendance 
 ot" witiiessses: 
 lutwprocured. 
 
 Siibpana nd 
 Ustificandum. 
 
 Siibpcena 
 duces tecum. 
 
 l>o made ill Clianil>ers by summons, or in Court by motion on 
 notice;^ and should be sui)|)ortod by an atVidavit of his iitness, and 
 that he has no adverse interest.'^ 
 
 The whole of the depositions of tlie witnesses must be written 
 by tlie Examiner, witli his own hand.* 
 
 The Kxaminer has no discretion to allow a witness to be treated 
 as hostile by the party ealling him;'* or to determine the relevancy 
 of the evidence.^ Such questions must be determined by the 
 Court; and, for that purpose, the Examiner should take down the 
 questions and answers in writinc;.'' The Examiner has i)Ower to 
 a(biiit or exclude the )>ublic, as he thinks fit.'' 
 
 AVhere it is intended to examine witnesses before an Exan\iner, 
 an ajipointment must be obtained from him,* and notice thereof 
 given to the wdtness;^ and wdiere there is reason to suppose a 
 witness will not voluntarily attend to be examined, recourse must 
 be had to the compulsory process of a writ of subpoena ad testi- 
 ficandum : which commands the witness to whom it is directed to 
 appear before the Examiner, to testify on behalf of the jjarty 
 requiring his testimony,^" In case tlie witness is required to bring 
 
 ^ Reed v. Prest, uhi sup. ; Williams v. 
 Williams, 10 Hare Ap. 45; 17 Jur. 434; 
 17 Reav. 156. 
 
 2 Where the examination was to be 
 taken ex parte, the Judge said that if the 
 parties could not agree upon an Examiner, 
 he would name one. Davenport v. Gold- 
 bery, 2 H. & M. 286. For forms. of sum- 
 mons, notice of motion, and affidavit, see 
 Vol. HI. 
 
 3 Stobart r. Todd, 18 Jur. 618, V. C. K. 
 A witness should <ro before the Examiner, 
 free to answer all interrogatories, and not 
 with a deposition alroadv preparer!. Un- 
 derhill't;. Van Cortlandt, 2 .Tohn. Ch. 339. 
 A deposition, prepared and written by the 
 party for whom it is taken, cannot be re- 
 ceived as evidence. Amorv v. Fellows, 5 
 Mas«. 219; see Kay v. Walton, 2 A. K. 
 Marsh. 71. Although it is copied by a 
 third person. Griswold v. Griswold, 1 
 Root, 259. The deposition is equally in- 
 admissible, if drawn bv the agent of the 
 party. Smith v. Huntington, 1 Root, 226; 
 Allen V. Rand, 5 (Jonn. 322; Patterson v. 
 Patterson, 2 Penii~yl. 200; Addleman v. 
 Mastersoii, 1 ib. 454; see Unite<l States v. 
 Smith, 4 Dav, 121; Logan v. Steele, 3 
 Bibb, 230. The practice of having the 
 questions shown to the witness, and his 
 answers prepared beforehand, and reduced 
 to writing and examined bj' counsel before 
 coming before the Master to testify, was 
 severely reprehended in Hickok v. Far- 
 mers' and Mechanics' Bank, 35 Vt. 476, 
 490. 
 
 4 Wright V. Wilkin, 4 Jur. N. S. 804; 
 6 W. R. 643, V. C. K. 
 
 8 See 15 & 16 Vic. c. 86, § 32. 
 
 6 Buckley v. Cooke, 1 K. & J. 29; see 
 form in Vol. HI 
 
 7 Wright V. Wilkin, ubi sup. 
 
 8 Anie, pp. 904, 905, note. 
 
 ^ When the examination takes place 
 before an Examiner of the Court, 3/. must 
 be deposited with the Examiner's clerk, by 
 the party obtaining the apixiiiitnient. This 
 is returned to him if he duly attends; but, 
 if he does not, and was not" ])revented by 
 death, illness, or unavoidable accident, it 
 is paid to the opposite party ; or if the oppo- 
 site party also fails to attend, or tlie exami- 
 nation was to have been ex pmte, the 31. is 
 paid to the suitors' fee fund*. Ord. 1 Jan., 
 1862. The order does not apply to a plain- 
 tiff suing in fiirmd pauperis. Skeats v. 
 Hurst, 1 N. R. 50, V. C. W. For form of 
 notice to the witness, see Vol. HI. 
 
 in Hinrie, 236. See 78th Equitv Rule of 
 the United States Courts, bv which it is 
 provided that witnesses who live within the 
 district, may, upon due notice to the oppo- 
 site p:irty, be summoned to appear before 
 the commissioner appointed to take testi- 
 mony, or before a .Master or Examiner ap- 
 pointed in any cause, by subpmnn in the 
 usual form, which may be issued by the 
 Clerk in blank, and filied np by the party 
 praying the same, "r b}' the commissioner. 
 Master, or Examiner, requiring the attend- 
 ance of the witnesses at the time and 
 place specified, who shall be allowed for 
 attendance the same compensa'ion as for 
 attendance in Court. The compulsory at- 
 tendance of witnesses before the Examiner 
 is provided for in New Jersey, bj^ Chan- 
 cery Rule 74. For form of writ, see Ord. 
 Sched. E. No. 3; and jml, Vol. IH.
 
 VIVA VOCE EVIDENCE. 
 
 907 
 
 with him any written document in his possession, then the writ 
 must be a subpoena duces tecum} 
 
 Every subpoena, other than a subpoena duces tecum, is to contain 
 three names, where necessary or required ; ^ and no more than three 
 persons are to be included in one subpoena duces tecum, but the 
 party suing out the same is at liberty to sue out a subpoena for 
 each person, if it is deemed necessary or desirable to do so,^ In a 
 subpoena of this nature, a husband and his wife are considered as 
 two distinct persons, and her Christian and surname must be in- 
 serted accordingly.* 
 
 The subpoena must be indorsed with the name or fimi, and place 
 of business of the solicitor issuing the same, and of his agent, if 
 any, or with the name and place of residence of the party issuing 
 the same, when he acts in person ; and, in either case, with the 
 address for service, if any.^ 
 
 On presenting a subpoena to be sealed, a ^^rcec^^je, in the usual 
 form, must be filed at the Record and Writ Clerks' Office.® 
 
 The service of any subpoena, except a subpoena for costs, is to be 
 of no validity if not made within twelve weeks after the teste of 
 the writ ; '' and in the interval between the suing out and service of 
 any subjyoena, the party suing out the same may correct any error 
 in the names of parties or mtnesscs, and may have the writ re- 
 sealed, upon leaving a corrected praecipe of such subpoetia, marked, 
 "Altered and resealed," and signed with the name and address of 
 the solicitor or solicitors suing out the same.^ 
 
 The service of this subpoena must, in all cases, be personal ; ^ and 
 is effected by delivering a copy of the writ and of the indorsement 
 thereon to the witness, and at the same time producing the original 
 writ.^° At the time he is served Avith the writ, the witness 
 should be served with a notice in writing, specifying the time when 
 he is to attend the Examiner in pursuance of it.^^ 
 
 c.xxii.§n. 
 
 Indorsement. 
 
 How issued. 
 
 Time for 
 serving. 
 
 Correction of 
 mistake. 
 
 Mode of 
 service. 
 
 Notice of time 
 to attend. 
 
 1 As to the degree of particularity with 
 which the documents must be descrilied, 
 see Attorney-General v. Wilson, 9 Sim. 
 526. For form of writ, see Ord. Sched. E. 
 No. .3 ; and/^"s<, Vol. III. When served with 
 a snhpienn duces tecum, the witness must 
 atteml l)efore the Kxaininer and produce 
 the instrument required, unless he has 
 some lepal or reasonable excuse for with- 
 holdinf; it. Upon trials in Courts of Law, 
 the (Jouit and not the witness is the Judge 
 of the valiiitv <if tlie "bjection. Amev v. 
 Lonir, Ka-t. 47.'J; Hull v. Lovelaml' 10 
 Pick. 9. In Courts of Kquity, the validity 
 of the objection is considered, upon the 
 witness being brought up, on an attach- 
 ment for refusing to produce the instru- 
 m'-nl. liradsiiaw v. Hradshaw, .3 8ini. 
 28.0; see M'l'herson r. Kathbone, 7 Wend. 
 216; .Inckson r. I)i'nis<in, 4 Wend. •'i.O)-; 
 Newland v. Starr, 11 Jur. N. S. 69G; 13 
 
 W. R. 1014, V. C. K.; Lee v. Angus, L. 
 R. 2 Eq. 59, V. C. W. A party cannot, 
 by a suhpmnn duces tecum, procure the 
 production of documents; the proper 
 course is to npply for an order for tliat pur- 
 pose. Newl md V. Starr, vbi supra. 
 
 2 Ord. XXVIIl. 3. In New Jersey, the 
 names of any number of witnesses may be 
 inserted in the same subpana. Rule 74. 
 
 3 Ord XXVIlI. 4. 
 
 * llinde. 327; Braithwaife's Pr. 264, n. 
 
 6 Ord. III. 2, 5, ante, pp. 453, 454. For 
 form of indoi-senifut, sec Vol. III. 
 
 s Ord. XXV'lll. 1. For form of ywwciy^c, 
 see Vol. III. 
 
 7 Ord -XXVIlI. 9. 
 
 8 Ord. XXVIlI. 5. 
 
 Spicer r. Dawson, 22 Bcav. 282. 
 1" Or.l. XXVlll. 0. 
 
 " Where tile examination is adjourned, 
 the witness is bound to attend the adjourn-
 
 908 
 
 EVIDENCE. 
 
 Whcro wit- 
 ness a mar- 
 ried woman 
 
 Praotico.with 
 
 C.x\ii.§ii. Xo witness is bouiul to attend, unless his reasonable expenses 
 are jiaid or tendered to liini ; nor, if lie appears, is he boxind to 
 give evidence until such i-liaro'es are actually paid him;^ and 
 the rule is the same, where the witness is a }>arty to the cause.'^ 
 
 If tlie witness whose attendance is required is a married woman, 
 the sul>p(vna should be served upon her personally, and the tender 
 of the expenses made to her, and not to her husband.^ 
 
 If the witness, upon being duly served with the sulrpoena and 
 respect to wit- noticc, ncolects or refuses to attend to be examined, a certificate of 
 
 nesses mak- , . ' -, , , . i ti • i <•, -i 
 
 iug default. his non-attcndance must be procured irom the iLxamnier, and nled 
 in the Record and Writ Clerks' Oi^ice ; * and an application made 
 to the Court, that the witness may be ordered to attend and be 
 sworn and examined, at such time and place as the Examiner may 
 appoint.^ This application is made by motion, Avhich may be either 
 ex parte, or on notice to the witness.® The application must be 
 supported by an affidavit of due service of the subpoena and notice,'' 
 and by production of the Examiner's certificate of non-attendance, 
 or an oiiice copy thereof.^ When the order is made ex parte, it 
 contains a clause that in default of attendance the witness do stand 
 committed to Whitecross Street Prison ; ^ and should not direct 
 him to pay the costs of the application.^" A further appointment 
 must next be obtained from the Examiner, and notice thereof, and 
 a copy of the order, duly served on the witness." If the witness 
 still neglect or refuse to attend, a further certificate of non-attend- 
 ance must be obtained from the Examiner, and filed, as before 
 exjilained. An attachment may then, if the order has been made 
 
 ment, without being served with a new 
 subpoena ; but he should be served with 
 notice of the adjourned time; and see Law- 
 son V. Stoddart, 10 Jur. N. S. 33; 12 W. 
 R. 286, V. C. K. For forms of notice, see 
 Vol. III. 
 
 1 The amount payable is according to 
 the scale fixed by the Common Law .Judg- 
 es; see Directions to Masters, Hilary 
 Term, 1853; 17 Jur. Ft. 2, 41; Tavlor on 
 Evid. § 112(5, n. ; Chittv's Arch. 1765; see 
 also Clark v. Gill, 1 K.' & J. 19 ; Nokes v. 
 Gibbon, 3 Jur. N. S. 282, V. C. K.; Bro- 
 cas V. Llovd, 23 Beav. 129; 2 Jur. N. S. 
 555; Turner v. Turner, 5 Jur. N. S. 839; 
 7 W. R. 573, V. C. K. ; Morgan & Davev, 
 29 ; Wiltshire v. Marshall, 1 W. N. 80, V. 'C. 
 W. For scale of allowances, see Vol. III. 
 
 2 Davey v. Durrant, 24 Beav. 493; 4 
 Jur. N. S. 230, a case of cross-examination 
 on affidavit. 
 
 3 2 Phil, on Evid. 428; Taylor on Evid. 
 § 1129. 
 
 ^ Seton, 1234; but see Cast v. Peyser, 
 3 Sm. & G. 369, where an attachment was 
 held regular, though the certificate had not 
 been filed. 
 
 6 Braithwaite's Pr. 144. See 78th Equity 
 
 Rule of the United States Courts, by 
 which it is provided, that if any witness 
 shall refuse to appear, or.to give eviileiice, 
 it shall be deemed a contempt of the Court, 
 which being certified to the Clerk's office 
 by the commissioner, Master, or Examiner, 
 an attachment may issue thereupon by 
 order of the Court or of any Judge thereof, 
 in the same manner as if the contempt 
 were tor not attending, or for refusing to 
 give testimony in the Court. For forms of 
 orders nisi and absolute, see Seton, 1233, 
 1234. 
 
 « Wisden v. Wisden, 6 Hare, 549, 550. 
 For forms of motion paper and notice of 
 motion, see Vol. III. 
 
 T For form of affidavit, see Vol. III. 
 
 8 Seton, 1234. 
 
 9 Ibid. 
 
 10 Nokes V. Gibbon, 3 Jur. N. S. 282, V. 
 C K. ; Brook v. Biddall, 2 Eq. Rep. 637; 
 2 W. R. 443, V. C. K. 
 
 11 The copy of the order must be indorsed 
 according to the provisions of Ord. XXIII. 
 10, and served in the same manner as in 
 other cases ; see post, Chap. XXVI. § 7, 
 Knforcinff Decrees and Orders. For form 
 of indorsement, see Vol. III.
 
 VIVA VOCE EVIDENCE. 
 
 909 
 
 on notice, be issued against him on production to the Record and 
 Writ Clerk of an affidavit ^ of due service of the order and notice, 
 and the examiner's certificate of non-attendance, or an office copy 
 thereof." If the order has been obtained ex parte^ an order for 
 the committal of the witness to Whitecross Street Prison will be 
 made, on an ex parte apjjlication by motion, supported by the 
 same evidence.^ This order, when drawn up, passed, and entered, 
 must be delivered to the tipstaff attending the Court : who will 
 procure a warrant from the Lord Chancellor, and will then appre- 
 hend and lodge the witness in Whitecross Street Pi-ison, where he 
 must remain in custody, not only till he has been examined, but 
 also until pajinent of taxed costs to the party requiring his testi- 
 mony, and UkcAnse the tipstaff's and keeper's fees for taking and 
 detaining him.* 
 
 After the witness has been examined, he will, upon his motion 
 or petition, and jiroduction of the Examiner's ceilificate of his 
 examination being complete, be ordered to be discharged by the 
 Court, on pa}ing or tendering the costs of his contempt ; or he 
 may be discharged by the party at whose instance he was 
 committed, if the jailer can be prevailed upon to take such 
 discharge.^ 
 
 The method is, mutatis mutandis^ the same where a witness, 
 having attended in obedience to the subpoena^ refuses to be sworn, 
 or to wait till his examination can be taken.® 
 
 If a witness, attending upon a subpoena duces tecimn, refuse, 
 without sufficient cause, to produce the document mentioned in 
 the writ, when required, he may be ordered, upon sjjeciul motion, 
 to attend again and produce it, and to pay the j^laintiff all the 
 costs occasioned by his refusal.' 
 
 If a witness is in prison, under a common-law process, he may 
 be brought up under a writ of habeas cor]ms ad testificandum^ 
 Formerly, the 2>ractice was, for the Examiner to attend the prison, 
 if within twenty miles of London ; ® and this practice may, it is 
 presumed, still be followed : though it would probably be the more 
 expensive course. The writ of habeas corpus is never issued 
 without an order : the order may be obtained upon motion of 
 course, or on petition of course at the Rolls, supported by an 
 
 C.XXII.§11. 
 
 1 For form, see Vol. III. 
 
 ^ Ord. XXIX. 3; Setoii, 1234. Forfur- 
 ther iiitbrniation us to utt:ichinents, .see 
 anU, j>. 403 tl se'j., ami post, (Jliap. XXVI. 
 § 7, l:nJ'orcinij JJtcrees and OrJtis. 
 
 3 For form ol order, see Seton, 1234; 
 and lor form of motion paper, see Vol. III. 
 
 * Hindi;, 3TJ. 
 
 '> Ih. 330; Seton, Vl^l . 
 
 ^ Ilenne^al t). Kvance, 12 Ves. 201 ; sfe 
 Hulc Mb, amending Kule 67, of the Eiiuity 
 
 Rules of the United States Courts for the 
 methdd of proceeding in such case. 
 
 ' Brad.sliaw v. Hradslmw, 1 K. & M. 
 3t3«; Hope v. Lidilell, 20 IJeav. 438; 7 De 
 G., M. & G. 331 ; lie Cameron's Coldbrook 
 Railway Company, 2.') lieav. 1. 
 
 » Huckeridge v. VVlialley, 6 \V. K. 180, 
 V. C. Iv., wliere the olliccr was ordered to 
 attend with the witness dc die in diem. 
 For lorm of writ, see Vol. III. 
 
 >' llinde, 331. 
 
 Discharge 
 from custody. 
 
 Course, where 
 witness re- 
 fuses to be 
 sworn; 
 
 or to produce 
 a document. 
 
 Course, where 
 witness is a 
 prisoner.
 
 910 
 
 EVIDENCE. 
 
 C.XX1I.§11, 
 
 Examination 
 of witnesses 
 who art' old, 
 intinn, &c. 
 
 Attendance 
 of Examiner 
 in such cases. 
 
 Original 
 depositions to 
 be tiled in 
 Kecord and 
 Writ Clerks' 
 Office; 
 
 whence copies 
 may be 
 obtained. 
 Effect of 
 death of 
 Examiner; 
 
 nftitlavit of tlic facts, mid imist bo produced at the time the writ 
 is sealed.^ 
 
 The Court, or tlie Judge in Chambers, may direct that the oral 
 examination and cross-examination of any witness (whetlier a party 
 or not), or the cross-examination of any j)erson who has been ex- 
 amined c.v jHtrh' before an Examiner, or made an atli(hi\it, sliall be 
 taken before an Examiner of the Court or a S])ecial Ex:iminer, in 
 the manner j)rescribed by the 15 & 16 Vic. c. 86,^ in case it shall 
 aj)pear to tlie Judge that owing to the age, infirmity, or absence 
 out of the juiisdiction of such witness or person," or for any other 
 cause which to the Judge shall api)ear sufficient, it is expedient 
 that such direction should be given. Such direction may be ob- 
 tained on application to the Court or the Judge in Chambers, on 
 notice.^ And in case the examination or cross-examination of any 
 ])erson in England or Wales is so directed, the party requiring such 
 examination or cross-examination may apply to the Court or the 
 Judge in Chambers for an order that one of the Examiners of the 
 Court may attend, for the purpose of such examination or cross- 
 examination, at any place or places in England or Wales to be 
 named in such order.^ 
 
 When the examination of witnesses before the Examiner has 
 been concluded, the original depositions, authenticated by his 
 signature, are transmitted by him to the Record and Writ Clerks' 
 Office, to be there filed ; and any party to the suit may have a copy 
 of the whole, or any part.® 
 
 If the Examiner dies before signing the depositions, they must 
 be signed by his successor.'' Where the Examiner omits to sign 
 
 1 Brailhwaite's Pr. 224. For form of 
 order, see Seton, 1275, No. 3; und for 
 forms of motion paper, petition, and affi- 
 davit, see Vol. III. 
 
 2 A7ile, p. 904. 
 
 3 For mode of taking evidence when the 
 witness is out of the jurisdiction, see post, 
 p. 848. 
 
 4 Ord. 5 Feb., 1861, r. 11; ante, p. 904. 
 For form of notice of motion and summons, 
 see Vol. 111. 
 
 5 Ord. 5 Feb , 1861, r. 12. The Exam- 
 iner is entitled, on production to him of 
 the Older, to one guinea a diy for his ex- 
 penses, and Is. tit2. per mile for travelling 
 expenses. These sums are to be paid liiin 
 by the party obtaining the order, and, 
 subject to any direction of the Court or 
 Judge to the contrary, will be costs in tlie 
 cause. Ord. 5 Feb., 1861, r. 13. Foinier- 
 ly the Examiner did not attend at any 
 place fiirther than twenty miles from Lon- 
 don; ilinde, 831; and tlie upplication was 
 made ex parte ; Anon., 4 i\laii. 463; I'illaii 
 V. Tliompson, 10 Hare Ap. 76; Watkinsr. 
 Atchison, ib. 46. 
 
 6 15 & 16 Vic. c. 86, § 34. All inter- 
 lineations or alterations in the depositions 
 should be authenticated by tlie initials of 
 the Examiner, and il the depositions are 
 not U'l't bj- him personally at tlie Kecord 
 and Writ Clerks' Office, they should be 
 sent there under a sealed cover. Brailh- 
 waite's Fr. 126. For the fees payable, see 
 Kegul to Ord., Sclieds. 1, 4. By the Rules 
 of Practice tor the Courts of E(|uity of the 
 United btates, when the examination of 
 witnesses before theExaminer is concluded, 
 the original depositions, authenticated by 
 tlie signature of tiie Examiner, shall be 
 transmitted by him to the Clerk of the 
 Court, to be there filed of record in the 
 same mode as prescribed in the thirtieth 
 section of the Act of Congress, Sept. 24, 
 1789, Hule 95, amending Kule 67. Tlie 
 duty of Examiners to transmit depositions 
 and examinations to the Clerk of the 
 Court is lixed by Rule 73. 
 
 " liryson v. Warwick and Birmingham 
 Canal Company, 1 W. U. 124, V. C S. ; 
 Fehhouse v. bailey, 14 W. li. 827, M. K.
 
 VIVA VOCE EVIDEXCE. 
 
 911 
 
 the depositions, the Court has power, if it thinks fit, to order them 
 to he filed. ^ An Examiner, before whom ^vitnesses who have made 
 affidavits are being cross-examined, for the purpose of obtaining 
 evidence upon an interlocutory motion, may return part of these 
 depositions at a time ; but if the evidence is being taken for the 
 hearing of the cause, it seems that he cannot return any until the 
 examination is closed.'^ 
 
 The depositions are to be written on foolscap paper, bookwise 
 or briefwise, as the Examiner thinks fit ; but the Clerks of Records 
 and Writs may receive and file depositions otherAose written, if, 
 in their opinion, the circumstances of the case render such reception 
 and filing desirable or necessary.^ 
 
 Where issue has been joined, if either party desires the evidence 
 as to any facts or issues to be taken viva voce at the hearing, he 
 may, at any time within fourteen days after issue joined, apply to 
 the Judge in Chambers, by summons,* to be served on the opposite 
 party, for an order that the evidence in chief as to any facts or 
 issues (such flicts and issues to be distinctly and concisely specified 
 in the summons) may be taken viva voce at the hearing of the 
 cause ; and the Judge may make an order that the evidence in 
 chief as to such facts and issues, or any of them, be taken viva voce 
 at the hearing accordingly ; and the facts and issues as to which 
 any such order dii'ects the evidence in chief to be taken viva voce 
 at the hearing, must be distinctly and concisely specified in such 
 order ; but in case the Judge is satisfied that such application is 
 unreasonable, or made for the purpose of delay, oppression, or vex- 
 ation, he may refuse to make any such order ; and where any such 
 order has been made, the examination in chief, as well as the cross- 
 examination and re-examination, will be taken before the Court at 
 the hearing, as to the facts and issues specified in such order ; and 
 no affidavit or evidence taken before an Examiner will be admis- 
 sible at the hearing of any such cause, in respect of any fact or issue 
 included in any such order.^ 
 
 Where an order for the taking of the evidence as to any fiict or 
 issue viva voce at the hearing has been made, the Clerk of Records 
 and Writs makes, in the certificate that the cause is ready for 
 hearing, an entry showing that such an order has been made ; and 
 ti»c Registrar, in setting down the cause for hearing in the cause- 
 book of the Judge to whose Court the same is attaclied, marks tlie 
 same, so as to indicate that the taking of evidence in chief viva 
 
 C. XXII. §11. 
 
 or omission 
 to sign. 
 In what cases 
 part of depo- 
 sitions may 
 be tiled. 
 
 Depositjons: 
 how to be 
 wTitteu. 
 
 Order to take 
 evidence rivcL 
 voce, at the 
 hearing. 
 
 Setting down 
 and licaring, 
 where evi- 
 dence is to 
 be taken 
 viva rcjfc. 
 
 1 Stephens v. Wankiin, lit Heiiv. 585. 
 Ah to what error in the title will invalidate 
 dt'pn.sitions, see Hariord v. Itecves, 1» Hare 
 Ap. <5H, anil the cas.; there referred to. 
 
 ■i (lark »;. (ill!, 1 K. & J. I'J. For for- 
 mal parUt of depositiuns, see Vol. III. 
 
 8 Ord. G March, 1800, r. IG. 
 
 ^ I'or form of .sununoiis, see Vol. III. 
 
 6 Ord. 5 Feb., IbOl, r. 3; lulnuinds v. 
 Urongham, il Jur. N. S. aS*, 16 W. K. 
 84, V. C. S.
 
 912 
 
 EVIDENCE. 
 
 I'.xxii.^n. 
 
 ^lode of 
 compelling 
 attendance of 
 witnesses. 
 
 Judge's notes 
 to be evidence 
 on appeal. 
 
 Court may 
 require the 
 production 
 and oral ex- 
 amination 
 bet'ore itself 
 of any wit- 
 ness, and de- 
 termine as to 
 payment of 
 the costs. 
 In what 
 cases. 
 
 I'oce at tlie hearing has been onlered ; and the cause will not be 
 allowed to come on to be heard without a s])eoial direction of the 
 Court : which may be obtained ujxui an application to the Court, 
 by either party upon notice, or to the Judge in Chambers, by sum- 
 mons, upon notice,* to fix a day for the hearing.^ No order is 
 drawn up on this application ; but the Registrar, or the Chief 
 Clerk, as the case may be, will deliver a note of the result of the 
 application to the ap]>licant\s solicitor ; and on })roduction thereof 
 to the Order of Course Clerk in the Registrars' Office, he will mark 
 against the entry of the cause, in the cause-book, the day fixed for 
 the hearing. 
 
 AVIiere any such order has been made, each party is at liberty 
 to sue out, at the Record and Writ Clerks' Office, subpoenas ad 
 testijicanduni and suhpcenas duces tecum, to compel the attendance, 
 at the hearing, of witnesses whom he may desire to produce, on 
 any issue or matter of fact included in such order.^ 
 
 Upon any appeal, rehearing, or further proceedings, the Judges' 
 notes of the viva, voce evidence w'lW, prima facie, be deemed to be 
 a sufficient note thereof.* 
 
 Upon the hearing of any cause, the Court, if it sees fit, may re- 
 quire the production and oral examination before itself of any 
 witness or party in the cause ; and may direct the costs of and 
 attending the production and examination of such witness or party, 
 to be paid by such of the parties to the suit, or in such manner, as 
 it may think fit.^ This power will only be exercised by the Court 
 at the hearing ; ® and it seems doubtful whether the mode of ex- 
 ercising it is by an order directing the attendance of the witness,'' 
 
 1 For forms of notice of motion and sum- 
 mons, see Vol. III. 
 
 2 Ord. 5 Feb., 1861, r. 8. 
 
 3 Ord. 5 Feb., 1861, r. 9; see also post, 
 Chap. XXVII. § 2, Trials of Questions of 
 Fact. For forms (jf subpoena, see Vol. III. 
 
 * Ord. 5 Feb., 1861, r. 14. By consent, 
 a short hand writer is often employed to 
 take down the evidence; and his notes are 
 then used, instead of the Judge's. The 
 costs of such notes will be allowed on taxa- 
 tions as between party and party, if taken 
 at the suggestion of the Judge. Clark v. 
 Malpus (No.2),31 Beav. 654; 9 Jur. N. S. 
 612; and see Flockton v. Peake, 12 W. K. 
 1023, V. C. W., and Morgan & Davy, 356. 
 By Rule of Chancery in Massachusetts, 
 ■when a case is heard before a single justice 
 of the Court upon any interlocutory ques- 
 tion, or for a final decree, the evidence 
 shall not be reported to the full Court, un- 
 less one of the parties, before any evidence 
 is offered, shall request that tlie same be 
 80 reported; or the justice shall, for special 
 reasons, so direct; and the justice will 
 appoint a suitable dismterested person 
 
 to take the evidence. The expense of tak- 
 ing the evidence shall be paid by tiie party 
 requesting the taking of the same, to 
 be allowed in the taxation of costs, if 
 costs are decreed to him. The allowance 
 to the person appointed to take the evi- 
 dence shall be fixed by the Court, and 
 shall not exceed ten dollars a day. Kule 
 35. See Granger v. Bassett, 98 Mass. 462. 
 
 5 15 & 16 Vic c. 86, § 39. For cases on 
 this section, besides the cases mentioned 
 below, see Oliver v. Wright, 1 Sm. & G. 
 Ap. 16 ; Wilkinson v. Stringer, 9 Hare, 
 Ap. 23; 16 Jur. 1033; Deaville v. Dea- 
 ville, 9 Hare Ap. 22; Chichester v. Chi- 
 chester, 24 Beav. 589; Ferguson ». Wilson, 
 1 W. N. 324; 15 W. K. 27, L. JJ. 
 
 6 Kavmond r. Brown, 4 De G. & J. 350; 
 5 Jur. "N. S. 1046; May v. Biggenden, 1 
 Sm. & G. 133; 17 Jur. 252; and see Hope 
 V. Liddell, 20 Beav. 438; East Anglian 
 Railway Company v. Goodwin, 6 W. R. 
 664, V. W. ; but see ante, p. 820. 
 
 7 May V. Biggenden, nbi sup. ; Nichols 
 V. Ibbetson, 7 W. R. 430, V. C. W.
 
 VIVA VOCE EVIDENCE. 
 
 913 
 
 or by directing a subpce?ia to issue.^ The jDower is analogous to 
 that of a Judge at nisi prius to recall a witness ;^ and is confined 
 to witnesses who have been examined in the cause.^ The Court of 
 Appeal may examine orally before it, a witness who has not been 
 orally examined before the Court below.* 
 
 All witnesses who have made an aifidavit or been examined ex 
 parte before the Examiner are, as has been before stated, liable to 
 cross-examination.^ If the affida\'it is to be used at the hearing of 
 a cause in which issue has been joined, the cross-examination takes 
 place before the Court at the hearing ; ® in other cases, before the 
 Examiner : "' except that, after decree, the cross-examination on an 
 affidavit used' in Chambers may be before the Chief Clerk.® 
 
 An ex parte examination before an Examiner can, as we have 
 seen,^ only take place in causes where issue has been joined ; and 
 the cross-examination upon it takes place at the hearing ; ^^ but in 
 other cases, as we have seen, where witnesses are examined before 
 the Examiner, the cross-examination follows immediately upon the 
 examination in chief ^^ 
 
 Where in any cause or matter a party has filed an affidavit, or 
 where in any cause in which issue has been joined a party has ex- 
 amined a Tvitness e^c ^?ar?e before the Examiner, any ojjposite party, 
 desiring to cross-examine the deponent or witness, is not obliged to 
 procure the attendance of such deponent or witness for cross-ex- 
 amination, either before the Examiner or before the Court ; but 
 any such opposite party may serve upon the party by whom such 
 affidavit has been filed, or witness examined, or his solicitor, a 
 notice in writing ^- requiring the production of such deponent or 
 witness for cross-examination belbre the Examiner, or before the 
 Court, as the case may be : such notice to be served within the 
 time mentioned below, or within such time as, in any case, the 
 Court or the Judge in Chambers may specially apjioint ^^ (that is 
 to say) : where such cross-examination is to be taken before the 
 
 1 Braithwaite's Pr. 254. A note or 
 tnemoranduin, sii^ned by the Registrar, is 
 evidence of the direction of the Court on 
 which the Record and Writ Clerk will act. 
 
 '^ See <'hitty's Arch. 395; Taylor on 
 Evid. § 1331. 
 
 8 East Anglian Railway Company v. 
 G'lodwin, 6 \V. R. 504, V. C. W. 
 
 * Hope V. Threlfall, 23 L. .J. Ch. 631; 2 
 Eq. Rep. 307, I.. .J.J. ; Langford v. il;ij,22 
 L. .J. Ch. 978; 1 \V. l:. 484, L. .J.I. ; and 
 see llincJson v. Weatherwill, 5 De G., M. 
 & G. 301, 312; 18 .Jnr. 4'J9; Martin v. l*y- 
 crott, 2 Oe G., M. & G. 785, 797 ; 16 .lur. 
 112.5. 
 
 6 15 & 16 Vic. c. 86, §§ 38, 40; Ord. 5 
 Feb., 1861, r. 6; unit, p. 888. 
 
 « (Jrd. 5 Feb., 1861, r. 7. 
 
 ^ Ord. 5 Feb. 1861, rr. 7, 15. 
 
 c.xxn.§n. 
 ' Y 
 
 Cross-exami- 
 nation of 
 aliidavit wit 
 nesses, and 
 examinants. 
 
 In what cases 
 an ex parte 
 examination 
 may be had. 
 
 Notice to pro- 
 duce witness 
 for cross- 
 examination. 
 
 8 15 & 16 Vic. c. 80, § 30. 
 
 9 Ante, pp. 824, 901; Smiih v. Baker, 4 
 N. R. .321, V. C. W.; -2 H. & M. 498. 
 
 10 Ord. 5 Feb , 1861, r. 7. 
 
 u Ante, p. 904. 
 
 i2 For form of notice, see Vol. III. 
 
 13 Where an affidavit, which had been 
 used in Court, was subsequently used in 
 Chambers, the Court specijilly appointed a 
 time witiiin which tiie cross-e.xaminution 
 was to take place. Si)itlle v. Hughes, 11 
 .lur. iN. S. 151, V. O. K.; S. C. noni. 
 Hughes V. Si)ittal, 13 W. R. 251. Where 
 the cross-examination of a witness was 
 proceeded with, without giviufr notice of it 
 to the party who had tjiven notice to read 
 the aliidavit, it was licld void. I'eunull 
 V. Davison, 14 W. K. 174, V. C. W. 
 
 68
 
 JU-l 
 
 EVIDENCE. 
 
 r.\xii.§ii. 
 ^— — -Y - —^ 
 
 Expenses of 
 
 producing 
 
 witness. 
 
 Old practice 
 may still be 
 resorted to. 
 
 Further time 
 to pive 
 notice: how 
 obtained. 
 
 ]Mode of com- 
 pelling at- 
 tendance for 
 cross-exam- 
 ination. 
 
 Court at tlio hearings of a causo in wliicli issue is joined, tlien at 
 any time belorc the exjiiration of lourleeu days next after the 
 closing of the eviilenee ; .iml where sueh cross-examination is to be 
 taken helore the Exainiiier in a cause in wliieli a notice of motion 
 for a decree or (K'cretal ludcr lias been serve*!, and to be used at 
 the hearinj:; of such motion, then at any time before tlie ex])iration 
 of fourteen days next after the end of the time allowed for the 
 plaintiff to tile affidavits in reply; and in every other case, within 
 fourteen days next after the filing of the affidavit or examination 
 upon which such deponent or witness is to be cross-examined ; ^ 
 and unless such deponent or witness be j)roduced accordingly, such 
 affidavit or examination cannot be used as evidence : unless by the 
 special leave of the Court.'^ The party producing such deponent 
 or witness is entitled to demand the ex])enses thereof in the first 
 instance from the party requiring such production ; but such ex- 
 penses will ultimately be borne as the Court shall direct/* 
 
 It has been held, that the foregoing rule does not prohibit the 
 party desiring to cross-examine fi-om taking the course provided 
 by the Act;* and that, therefore, a deponent served with a sub- 
 poena., under the Act, is bound to submit himself for cross-exami- 
 nation on his affidavit in opposition to a motion for an injunction, 
 notwithstanding the lapse of fourteen days from the time when it 
 was filed.^ 
 
 An enlargement of the fourteen days, in any of the above cases, 
 may, on sufficient reason being shown, be obtained on an applicii- 
 tion at Chambers, by summons : the summons must be served on 
 the opposite parties.® 
 
 Where the notice to produce a watncss is given, the party to 
 wdiom it is given is entitled to compel the attendance of the de- 
 ponent or witness for cross-examination before the Court at the 
 hearing of the cause, or before the Examiner, as the case may be, 
 in the same way as he might compel the attendance of a witness 
 to be examined, if an order had been made for taking evidence 
 
 1 Where a petition came on for hearing 
 before the expiration of the fourteen days, 
 and the affidavit was withdrawn, it was 
 held that the opposite party could not re- 
 quire the hearing t'l be postponed because 
 the deponent was not produced for en ss- 
 examination. lie Sykes Trusts, 2 J. & H. 
 415. 
 
 2 Ord. 5 Feb., 1861, r. 19. Where the 
 witness was unable from illness to attend 
 on the day fixed for the hearing of a cause, 
 it was held that the defendant might insist 
 on the affidavit being withdrawn, or the 
 cause standing over. Nason v. Clamp, 12 
 W. K. 973, M. K.; but see Tanswell v. 
 Scurrah, 11 L. T. N. S. 761, M. K. Affi- 
 davit allowed to be read, though no cross- 
 
 examination. Simpson v. Malherbe, 13 
 W. K. 887, V. C. S. ; Braithwaiteii. Kearns, 
 34 Beav. 202. Leave given to use affida- 
 vits, but order made saving all just excep- 
 tions. Ridley v. Kidley, 34 Beav. 329. 
 
 3 Ord. 5 Feb., 1861, r. 19. As to whether 
 the costs of cross-examination are costs in 
 the cause, see Hunt v. PuUen, 34 Beav. 
 301. 
 
 4 15 & 16 Vic. c. 86, § 40. 
 
 5 Singer Sewing Machine Manufacturing 
 Company v. Wilson, 11 Jur. N. S. 58, V. 
 C. W. ; 2 II. & M. 584; and see Cox v. 
 Stephens, 9 Jur. N. S. 1144; 11 W.Ii. 929, 
 V. C. K. 
 
 6 See Ord. XXXVII. 17. For forms of 
 summons, see Vol. III.
 
 VIVA VOCE EVIDENCE. 
 
 915 
 
 viva voce at the hearing ; ^ and if the notice is given for the C.XXII. § ii. 
 
 production of any deponent or witness, for cross-examination at ' r ' 
 
 the hearing of a cause in Avhich issue is joined, either party may, Hearing, 
 
 upon notice, apply to the Court, or to the Judge in Chambers, to ^^f ^ross^x-^ 
 
 fix a day for the hearing of the cause.^ • amination 
 
 ■^ • • 1 • 1 r. given. 
 
 Any party in any cause or matter, requirmg the attendance ot Notice of ex- 
 any witness, whether a party or not, before the Court, or before amination or 
 one of the Examiners of the Court, or a Special Examiner, lor the uatTon.' 
 purpose of being examined, or of being cross-examined, must give 
 to the opposite party forty-eight hours' notice, at least, of his in- 
 tention to examine or cross-examine such witness : such notice to 
 contain the name and description of the witness, and the time and 
 place of the examination or cross-examination, unless the Court in 
 any case thinks fit to dispense with such notice.^ So far, how- 
 ever, as the witness himself is concerned, the notice to be given 
 must be according to circumstances ; and if he resides in London, 
 or has his oftice there, twenty-four hours' notice is ample.'* 
 
 Where a witness is out of the jurisdiction, a commission, as we witnesses 
 have seen, may still be issued,^ under an order : which may be 
 obtained on special motion or summons, supported by affidavit ; ^ 
 but the ortliuary and more convenient course is to appoint a 
 Special ExaniinerJ 
 
 Where a cqmmission is directed to issue, it is prepared by the Commission 
 applicant's solicitor ; and will be sealed at the Record and Writ ifow^lrepared 
 
 out of 
 jurisdiction. 
 
 and issued. 
 
 1 Ord. 5 Feb., 1S61, r. 20; (mle, p. 911. 
 A -witness will not be compelled to attend, 
 if, from the matter liein^ disposed of, or 
 other cause, his cross-examination would 
 be useless. Hooper v. Campbell, 13 W. R. 
 1003, L. C. 
 
 2 Ord. 5 Feb., 1861, r. 21; see ante, p. 
 911. 
 
 3 Ord. 5 Feb., 1861, r. 22; Braithwaite's 
 Manual, 178, n. (85). For Ibrm of notice, 
 see Vol III. 
 
 * Re North Wheal Exmouth Mining 
 Company, 31 IJeav. 628; 8 Jur. N. S 116b:. 
 
 6 15 & 16 Vic. c 86, § 28; see ante, p. 
 888. In reference to the tiikm^ of df po-i- 
 tioiis either at home or abroad, niiiny ca^-es 
 will be found collected in note (42) to 2 
 I'hil. Fv. (Cowen & Hill's note-) pp. 32- 
 41 ; see also 1 (Jreeiil. Kv. §§ .320-325. 
 To entitle depositions to be read in evi- 
 dence, the rules of Court and statutes re- 
 spectinf: them must be strictly complied 
 with. Widlace v. Mea'-e, 4 Veates, 520; 
 JJell )•. Morrison, 1 I'eters, 351 ; Wino ski 
 Tump. (,'r). r. Ilidlev, « Vt. 404; Hrad- 
 street r. Baldwin, ll'.Mass. 220; The Ar- 
 po, 2 Wlieiit. 287; Evans v. Eatmi, 7 
 Wheat. 3.j«; Sunders r. llo«e, 1 Chip. 363; 
 Collins V. Klliot. 1 llarr. &: .J. 1 ; Den r. 
 Farley, 1 South. 124; ll<iidricks r. Cniig, 
 2 ib. 567; Wor-huni v. (iove, 4 I'orler, 441 ; 
 AViggins »• I'ryor, 3 I'orler, 430; Shepherd 
 
 T. Thompson, 4 N. H. 213; AVeiles v. Fish, 
 3 Pick. 74; Burroughs v. Booth, 1 Chip. 
 106. 
 
 6 Hinde, 304. By 67th Equity Rule of 
 the Supreme Court of the United States, 
 after a cause is at i=sue, commissions to 
 take testimony may be taken out in vaca- 
 tion as well as in term, jointly by both 
 parties, or severally by either pnrty, upon 
 interrogatories filed by the party taking 
 out the same, in the Clerk's otKce, ten 
 days' notice thereof being given to the ad- 
 verse pnrty to lile cro-s-interrogatories be- 
 fore the issuing of tlie commission; and if 
 no cross-interrogatories are tiled at the 
 expiration of the time, the commission 
 m.i_\ is'-ue ex parte ; and Since the amend- 
 ment of this rule, March 17, 1862, testimony 
 mav still be taken on commission, in the 
 u^ual way, by written interrogatories and 
 cross-interrogatories, on motion to the 
 Court ill term time, or to a Judge in vaca- 
 tion, for s])ecial reasons satisfactory to the 
 Court or Judge. For forms of notice of 
 motion and summons, see Vol. MI. 
 
 ■? Crofts V. Middletoii, U Hare Ap. 18; 
 and form of order in that case, see tb. 75; 
 Rawlins r. Wickhain, 4 Jur. N. S. OUO, V. 
 C. S.; Edwards v. Si)!ii(;ht, 2 J & H. 617; 
 and see Drevon r. Drevon, 12 W. R. 60, 
 V. C. K.
 
 \nG 
 
 EVIDENCE. 
 
 > 
 
 Form of 
 i<oiiiinii«iou. 
 
 (".XXII. §11. Clorks' Oftieo, on i>votliu'tion of tlio order iiinler wliicli it is issued, 
 and on a jmrripe boiuLT U'l't tluMV.^ 
 
 'Phi' I'onunission is dirccti'il to not less tli;in four cx)niinis- 
 sionors," and conunaiids tiu'in, any t w o or more of them, to sum- 
 mon tlie witnesses and examine tliem upon inti'i'rogatories, on 
 their oaths, u])on the Holy Evangelists, or in such other solemn 
 manner as is most biiulinsi; on their conscienees : and to take 
 tlu'ir examinations and reduce them into writing in the English 
 language; and to send the same to the Court of Chancery without 
 delay, or by the return day, if any, named in the order, closed up 
 under their seals, or the seals of any three or two of them, to- 
 gether with the interrogatories and the commission, and a certifi- 
 cate in what manner the oath is administei'ed to such witnesses as 
 cannot speak or understand the English language. The com- 
 missioners are further commanded that, before any one of them 
 acts in, or is present at, the swearing or examining of any witness, 
 they severally take the oath first specified in the schedule to the 
 commission ; ^ and which they, any three or two of them, are 
 empowered to administer to the rest or any other of them, upon 
 the Holy Evangelists ; and all clerks employed in taking, 
 Avriting, transcribing, or engrossing the depositions of the witnesses 
 are, before they act, required to take the oath last specified in the 
 schedule : ^ to be administered by the commissioners or any 
 
 1 Braithwaite's Pr. 186. The commis- 
 sion must be stumped with a 11. Chancery 
 fee fund stamp. Kegul. to Ord. Sched. 4. 
 For furms of comuiissiun, indorsement, 
 prcEcipe, and oaths of the commissioners 
 and tiieir clerl<, see Vol. III. 
 
 ^ By the 67th Equity Kule of the Courts 
 of the" United States, tlie commissioner or 
 commissioners to take depositions, shall in 
 all cases he named by tlie Court, or by a 
 Judge thereof. But this rule has been so 
 amended as to allow the presiding Judge of 
 any Court exercising jurisdiction, either in 
 term time or in vacation, to vest in the clerk 
 of said Court, general power to name com- 
 missioner.- U> take testimony in like man- 
 ner that the Court or Judge" thereof could 
 do by the said 67th Rule. 
 
 For cases touching the competency of 
 persons to act as commissioners, see Hea- 
 cock v. Stoddard, 1 Tyler, 344; and Chan- 
 dler ». Brainaid, 14 l^ick. 285. 
 
 Under the provision that no person 
 interested shall draw up a deposition to be 
 used in a cause, &c., a son-in-law of a 
 party was held not disqualified, in Heac<ick 
 V. Stod'iard, 1 Tyler, 344. But a de]iosi- 
 tion taken before the uncle of a party to a 
 suit was held inadmissible in New Hamp- 
 sijire. Bean v. Quimby, 5 N. 11. 94 ; see 
 Smith V. Smith, 2 Green). 408; (Joilin v. 
 Jones, 13 Pick. 441; Wood v. Cole, 13 
 Pick. 279. 
 
 In Pennsylvania, a commission was is- 
 
 sued to four commissioners, jointly, to 
 take the depositions of witnesses in Kng- 
 laiid. It was executed and returned by 
 three of the commissioners only; two of 
 w^hom, however, were of the defendant's 
 nomination, and it was held inadmissible 
 in evidence. Guppy v. 15rowii,4 Dall. 410; 
 see -Marshall v. Frisbic, 1 Munf. 247. Hut 
 depositions taken under a joint and several 
 coniniissioii were held admissible, though 
 tlie defendant's commissioners did not at- 
 tend. Penucock v. Freeman, 1 Watts, 401. 
 AVliere a commission was directed to live 
 persons, or any one of them, and the ex- 
 amination was taken in conjunction with 
 another person, not named in tiie commis- 
 sion, the deposition was held inaiimissible. 
 Williiigs V. Consequa, 1 Peters C. C. 301; 
 sec further as to connnissions. Cage 1). 
 Courts, 1 Harr. & M'H. 239. A commis- 
 sion to take depositiniis, issued in blank as 
 to the persons to wliom directed, is in- 
 admissible. VVorsham v. Goar, 4 Porter, 
 441. 
 
 3 For form of oath, see Vol. III. 
 
 ■* It is not necessary, in the United 
 States, that there should be a clerk to the 
 commission. Beard v. Heide, 2 llarr. & J. 
 442. The commissioner should himself 
 examine the witness, and not leave so 
 weighty an aflair to jiis clerk or others. 
 Prac. Keg. 124 ; llinde, 348 ; Cappeau V. 
 Baker, 1 Harr. & G. 154.
 
 VIVA VOCE EVIDENCE. 
 
 917 
 
 one of them. The commissioners are histly commanded, if C.xxii.§ii. 
 
 necessary, to swear an inteii:)reter or interpreters, to intevjiret ' ^' ' 
 
 the oaths and interrogatories to those witnesses who do not 
 understand English, into the language of the witnesses, and. 
 also to interpret the depositions out of the language of the wit- 
 nesses into the English language, and to keep such depositions 
 secret.-^ 
 
 As a commission for the examination of witnesses is rarely, if Practice, ou a 
 ever, resorted to under the present practice of the Court, it has '^*'™™'^*'°"- 
 not been thought necessary to set out the practice relative to the 
 execution of such commission. The reader will, however, find such 
 practice fully detailed in the second edition of this treatise.- 
 
 1 See form of commission in Braith- 
 waite's Pr. 183. The recent alterati"n« in 
 the mode of taking evidence may render 
 some alteration necessary in the terms of 
 the commission ns sibove stated, in future 
 cases. 
 
 2 See pp. 872-908 ; 3d Am. ed. 924- 
 953. Tlie prnctice in Chaiiceni' in the 
 several Stntes in relation to the issuing, 
 execution, and return of commissions, is 
 in general regulated by statute or by local 
 rules, which could not usefully be set out 
 in these notes. ^Fany of the enses and 
 rules will be found referred to in 2 Phil. 
 Ev. (Coweii & Mill's notes) pp. 32-41, in 
 note (42) : see also 1 Greenl. Hv. §§ 320- 
 325; 1 Hoff. Ch. Pr. 363, 474; Hunter v. 
 Fletcher, 5 Rand. 126; Edgell v. Lowell, 4 
 Vt. 412. Depositions in a foreign country 
 must be taken by commission. Stein v. 
 Bowman, 13 l'eters,209. 
 
 In Xew .Jersey, wlien a cause is at issue, 
 a commission for the ex;imination of a 
 witness out of the State may be applied 
 for, either in vacation or in term time, 
 upon afiidavit stating that the \Yitness is 
 material, und tliMt tlie partv applying cnn- 
 not safely proceed to u hearing of tlie cnuse 
 witliout his testimony. A stipuItUod notice 
 is to be given; and the name or naines of 
 the witnesses, their residence, and the 
 name or names and residences of such 
 person or t'crsons as the piirtv npplyiiig 
 intends to nominnte as commi.ssioner or 
 commissioners. Chnncery Rule 75. If the 
 party to whom notice is given of the in- 
 tendeil application for a connnission intend 
 to join in the commission, and to name 
 any other commissioner or commissioners, 
 he shill ;.:ivc notice to the ndveise j)aitv, 
 two davs before the intended application, 
 of the name or names, additions, and resi- 
 dence of the person or per-ons whom he 
 proposes for a commissioner or connnis- 
 sioners; ;ind the Chan(!cllor shall iippoiiit 
 the commissioner or ccjinmissioners to 
 execute the commission; nnd the partv 
 who shall (irst give notice of his intention 
 to move lor a commission, sIimII sue; out 
 and lorward the same; Ijiit if he sh.ill un- 
 rea.oouMbly delay to do so, the other parly 
 may forward, and cause it to be executed 
 
 and returned; and every order for a com- 
 mission shall fix a time for its return, and 
 it shall not be used if not returned within 
 said time, unless the time be extended by 
 an order for that purpose. Rule 76. See 
 Barrett v. Pardow, 1 Edw. Ch. 11. The 
 name of every witness to be examined 
 sliall be inserted in the commission, and 
 the interrogatories to be put to the wit- 
 nesses iinnexed to the commission; and 
 copies of the interrogatories slnill be fur- 
 nished to the opposite party, that is to say, 
 copies of all djrect interrogatories shall be 
 furnished six daj's, and copies of the cross- 
 interrogatories two days, before the time 
 of submitting the same to the Chancellor 
 for his approval; and notice of the time 
 and place of sucli submission shall be 
 served with the interrogatories, at which 
 time and place the cross-interrogatories 
 shall also be submitted. Rule 77; 2 Mc- 
 Carter, 528, 529. 
 
 In Massachusetts, where the testimony 
 of witnesses, residing out of the juiisdiction 
 of the Court, is to be taken, the plaintiH'is 
 entitled to have a commission for that 
 purpose; and all the Rules of Law as to 
 the time and manner of faking and filing 
 depositions at Law, will applv in Equity. 
 Pingree v. Cof?in, 12 Cush 600. 
 
 No notice of the time and place of exe- 
 cuting a commission out of the State is 
 necessary to be given to the opposite jjiirtj- 
 in Maryland. Owings v. Norwood, 2 Ilarr. 
 & .1. 96. But time shoidd be given, to 
 allow the ojiposite P;irty to exhibit iutc- 
 rogatories. ll/id. The services of copies 
 of tin; interrogatories, which accompany a 
 commission, on the adverse i)arty, a suf- 
 ficient time befoic the i-sning of the 
 commission, to enable him to tile cross-in- 
 terrogatories, is sufficient notice of the 
 issuuig of the commission, and of the time 
 and )ilaci; of executing it. Law v. Scott, 
 .'■) Ilarr. & .L 438. 
 
 I'uiier the New York Act of 17th of 
 Ajiril, 1S23, parties and their counsel have 
 a rifiht to he present at the examination of 
 witnesses and to cross-examine in all cases; 
 and this as well upon commissious issued 
 to examine witnesses out ol' tlie State as in 
 other cases. Steer t". Steer, llopk. 3C2.
 
 918 
 
 EVIDENCE. 
 
 ^■.XXIT.§11. 
 
 Where wit- 
 ness does 
 not sjieak 
 English. 
 
 Tho coiumlssionors liavc power in Scotland and Ireland, to call 
 in tlu' aid of tlie Courts of those ('(ni'ntries to compel the attend- 
 aiu'e o\' any witness Avho may m'<;-U'ot to obey their notice to 
 attend ; ' ami it is cont-ei\ I'll that Special Kxannners have the 
 same j)ower.- 
 
 Wliere the witness is resident at any place in her Majesty's 
 dominions, the eonnnissioners, or Special Examiner, may obtain an 
 order from tlie Court having jurisdiction in such jdace, that the 
 examination may proceed in accordance Avith the order of the 
 Court of Chancery ; and may obtain from such first-mentioned 
 Court such furtlier orders as may be necQssary, for the purpose of 
 compelling the attendance of the witness.' 
 
 It may be noticed in this place, that, Avhere the Examiner has to 
 examine witnesses who cannot speak English, the usual and proper 
 course is to take down the depositions from an interpreter in 
 English.* This, however, does not appear to be absolutely neces- 
 sary : since, in some cases, examinations taken down in a foreign 
 language have been recognized by the Court. If the depositions 
 are taken down in the language of the witness, they must after- 
 
 For the practice in New Hampshire on 
 this subject, see Marston v. Brackett, 9 N. 
 H. 345, 34G. 
 
 It is not necessnrv in Alabama, that, 
 previous to the is;-uing or' a commission to 
 tnke the dep'sitioii of a non-resident wit- 
 ness, the interrogatories should be filed in 
 the clerk's ottice. The party may exam- 
 ine the witness before the commissioners. 
 Wigsrins v. Pryor, 3 Porter, 430. 
 
 Ill Pennsylvania, a deposition taken 
 under a comnnssion need not be subscribed 
 by the witness. JMoulson v. Hargrave. 1 
 Sevg. & R. 201. In Kentucky, it is no 
 objection to a deposition that the witness 
 omitted to subscribe his name. Moblev v. 
 H;imit, 1 A. K MMrsh. 590. So in North 
 Carolina. Rutherford v. Nelson, 1 Havw. 
 105; iMurphy r.. Work, 1 liayw. 105. 
 So in Virjrinia. Barrett v. Watson, 1 
 Wash. 372. So in Alabama. Wiggins 
 V. Pryor, 3 Porter, 430. A deposition 
 taken under m commission to take the dt^p- 
 osit'on of .lohn Priestly, may be read in 
 evidence, though signed .John G. Priestly. 
 Brooks «. M'Kean, Cooke, 162; see Brey- 
 fogle V Beckley, 16 Serg. & R. 264. 
 
 A deposition, to which the witness i.s not 
 sworn till his testimony is reduced to 
 writing, is irregular. Armstrong v. Bur- 
 rows, ti Warts, 266. 
 
 The magistrate who takes a deposition 
 is to judge of the mental capacity of the 
 witness. Hough v. Lawrence, 5 Vt. 209. 
 
 It will be presumed that commissioners 
 have done their duty in keeping and for- 
 waidiiig de|)Obitions. unless the contrary 
 appear. Glover tJ. Millings, 3 Stew. & P. 
 28. Commissioners to take depositions 
 should certify, in their return, tlmt they 
 caused the witness to be examined on oath 
 
 upon the interrogatories annexed, and that 
 they caused the examination to be reduced 
 to writing; otherwise the depositions can- 
 not be read. Bailis v. Cochran, 2 John. 
 417; see Glover v. Millings, nbi supra; 
 Petti bone v. Derringer, 4 Wash. C. C. 215. 
 It is sufficient that the commissioners cer- 
 tity, in their return, that the oath has been 
 duly taken by them. Wilson v. Mitchell, 
 3 rtarr. & J. 91 ; Glover v. Millings, ubi 
 supra. 
 
 As to objections to the deposition, see 
 Strike V. M''Donald, 2 Hiirr. & .1. 29, 192. 
 
 1 6 & 7 Vic. c. 82, § 5; Taylor on Evid. 
 §§ 1183, 1183 A. For the practice at Law 
 under this Act. see Chitv's Arch. 341-344. 
 
 2 See 15 & 16 Vic. c. '86, § 35. 
 
 8 22 Vic. c. 20, § 1; Taylor on Evid. 
 §§ 1183 B. Commissioners may summon 
 a witness to attend before them; and the 
 Court will compel the witness to do so; but 
 a commission should be issued so as to 
 have the examinution at a ri-asonable dis- 
 tance from the residence of the witness. 
 Maccubl)in v. Matthews, 2 Bland, 250; see 
 78th Equity Rule of the United States 
 Courts, by which it is provided thiit wit- 
 nesses niMy be summoned to appear before 
 the commission by subpoena in the usual 
 form, which may be issued in blank by 
 the (derk. and filled up by the part}- [ray- 
 ing the same, or by the commissioner. See 
 Rule 74 of the New .Jersey Chancer}' Rules. 
 
 •* Lord Belniore v. Anderson, 4 Bro. C. 
 B 90. In Gilpins r. Consequa. 1 Peters C. 
 C. 86, it was held no objection, that the 
 deposition was in English, though taken 
 before Du'climen, who did not appear to 
 have been assisted by a sworn interpreter. 
 See Amory v. Fellows, o xVlass. 219.
 
 VIVA VOCE EVIDENCE. 
 
 919 
 
 wards be translated out of that lancruage into English, by a per- 
 son appointed by an order of the Court : who must be sworn to 
 the truth of his translation ; ^ and must either make such trans- 
 lation before the depositions are filed, or afterwards attend at the 
 Record and Writ Clerks' Office for that purpose : for the Court 
 will not make an order for the record of tlie deposition to be 
 delivered oxxt, in order that they may be translated.- 
 
 The translation, after the truth thereof has been sworn to, is 
 annexed to the depositions, and an office copy made of it : which 
 will be pei-mitted to be read at the hearing, saving all just excep- 
 tions, when, as is usually the case, the order so directs. The order 
 for the appointment of a translator of the depositions, and for leave 
 to use them at the hearing, is. obtained by motion of course, or by 
 petition of course at the Rolls.^ Where a witness disputed the 
 correctness of an alleged translation of letters in a foreign language, 
 on which translation he was being cross-examined before an 
 Examiner, but as to the correctness of which there was no evidence, 
 it was held that the witness should be cross-examined at the hear- 
 ing in open Court, and if any difficulties then arose, the Court 
 would, if necessary, consider how to dispose of them.* 
 
 It seems that an examination of witnesses abroad will not be 
 affected by an abatement of the suit; and that the depositions 
 (pro\'ided neither the Examiner nor the witnesses have received 
 notice of the abatement) will be good evidence.^ The same prin- 
 ciple has been ai)plied to an abatement, pending an examination 
 of witnesses in this country.*^ 
 
 In all cases whatever, the re-examination of a witness is to 
 follow immediately upon his cross-examination.'' 
 
 The evidence, when taken, whether by affida^-it or otherwise, 
 and whether in chief or on cross-examination, is ojjen to all 
 parties ; * and a defendant has, consequently, a right to cross- 
 examine his co-defendant's witnesses.^ 
 
 The costs of a commission, or Special Examiner, to take evi- 
 dence abroad, will be taxed in this country : but on the scale 
 allowed in the country where the evidence was taken.^'' The 
 costs of the solicitor here, of attending the examination abroad, 
 will not be allowed." 
 
 C.xxii.§n. 
 
 Translation of 
 depositions. 
 
 1 1 Xewl. 439. For form of affidavit, 
 Bee Vol. III. 
 
 '^ Fauquier v. Tynte, 7 Ves. 292; see 
 Gilpins /;. Con^equii, 1 Peters C. C. 85. 
 
 8 P'or forms of motion paper and petition, 
 Bee Vol. III. 
 
 * Fo.ster v. Glad.stone, 12 W. K. 52-5, V. 
 C. W. 
 
 '' Tliompson'.s case, 3 1'. Wms. 195; 
 WiiiftT V. bancic, Totliill, 99. 
 
 8 Curtis V. Fulbrook, 8 Iliire, 29. 
 
 7 Ord. XIX. 8. 
 
 8 Lord V. Colvin, 3 Drew. 222; Sturgis 
 V. .Morse (No. 2), 26 Beiiv. 502. 
 
 " Lord V. Colvin, ndi sup. ; Feilden r. 
 Slater, L. H. 7 E<\. f.23, 529. 
 
 1" Wentworth r. Lloyd, 13 W. K. 486, M. 
 Ii. ; 34 Heuv. 455 ; see iis to costs of pe- 
 rusing the depositions, 'S. C. L. It. 2 Va\. 
 609; 12 Jur. N. S. 5«1, M. R. 
 
 11 Hammond v. Wordsworth, 1 Dick. 381. 
 
 Correctness of 
 translation: 
 how disputed. 
 
 Abatement of 
 suit. 
 
 Re-examina- 
 tion of wit- 
 nesses: when 
 to take place. 
 Evidence 
 open to all 
 parties: and 
 defendant 
 may cross- 
 examine co- 
 defendant's 
 witnesses. 
 
 Scale of taxa- 
 tion as to 
 evidence tak- 
 en abroad. 
 Costs of so- 
 licitor.
 
 :"J0 
 
 EVIDENCE. 
 
 » .X\Il.§12. 
 
 Section XII. — Of Interrogatories. 
 
 iJonoral nilo 
 to oxnmino 
 u]M>n iiitcr- 
 roy,'atoriL'S. 
 
 Nature of in- 
 terrogatories. 
 
 Original ; 
 Cross. 
 
 Must be 
 pertinent and 
 not leading. 
 
 The <;cMU'i:il niodo of oxMiniiiiiitr witm^sscs in E(|Viity fonnerly 
 was by intt'rrotiatories iti writiiii!;", exliibiteil by tlie ])Mrty, ]»lain- 
 titt' or (ioibiidant, or directed by tlie Court to be proposed to 
 or asked of the witness in a cause touching tl»e merits thereof or 
 some incident therein. Tlie practice is now, however, almost en- 
 tirely abolished ; but, as it may still be resorted to with respect to 
 any particular witness within the jurisdiction of the Coiu't, and 
 with respect to all witnesses in the cause out of the jurisdiction of 
 the Court,^ and as it continues to prevail in some Courts in the 
 United States,^ it is proper here to consider and state the rules by 
 which it is governed. These interrogatories are questions in writ- 
 ing, adapted to sustain the case made by the })arty exhibiting them, 
 and are administered to the -wdtnesses either by the regular Ex- 
 aminers of the Court, or through the medium of commissioners 
 sj^ecially appointed for the purpose.^ They are termed original., 
 when exhibited on the part of the person who produces the wit- 
 ness ; or cross interrogatories, if filed on behalf of the adverse party, 
 to examine a witness produced on the other side.* 
 
 Interrogatories should be short and pertinent, and necessarily 
 they must not l)e leading.^ If they are leading, the deposition 
 taken thereon will be suppressed ; and so it will be where the in- 
 teiTOgatories are too particular, and point to one side of the ques- 
 tion more than the other.® 
 
 1 Ante, pp. 887, 888. 
 
 2 See 37 Maine, 585, Chancery Rule, 14. 
 8 Ilinde, 317. 
 
 4 Ihid. 
 
 5 As to the forms of interrogatories, see 
 Gresle3' Eq. Ev.*(Am. ed.) 44-48. Lead- 
 ing questions are those which suggest to 
 the witness the answer desired. See 1 
 Greenl. Ev. §§ 434, 435; 1 Stark. Ev. 149; 
 1 Phil. Ev. (Cowen & Hill'.s ed. 1839) 
 268-272, and notes referred to; Parkin v. 
 Moore, 7 C & P. 408. In some cases lead- 
 ing questions are permitted, even in a 
 direct examination; namely, where tlie 
 witness appears to be hostile to the p!irty 
 producing him or in the interest of the 
 other party, or unwilling to give evidence; 
 or where an omission in his testimony is 
 evidently caused b)' want of recollection, 
 which a suggestion mu_v assist. Thus 
 where the witness .stated, that he could not 
 recollect the names of the component mem- 
 bers of a firm, .so as to repeat them, with- 
 out suggestion, but thought he might 
 
 Eossibly recollect them if suggested to 
 im, this was permitted to be done. So 
 where the transaction involves numerous 
 
 items or dates. So where, from the nature 
 of the case, the mind of the witness cannot 
 be directed to the subject of inquiry, with- 
 out a particular specification of it. So 
 where a witness is called to contradict 
 another, who has testified to particular 
 expressions, the contradicting witness may 
 be asked whether such expressions were 
 used. When and under what circumstan- 
 ces a leading question may be ])ut, is a 
 matter resting in the sound discretion of 
 the Court, and not a matter which can be 
 assigned for error. 1 Greenl. Ev. § 435; 
 Clarke v. Saffery, Ry. & M. 126, per Best 
 C. J. ; Regina v. Chapman, 8 C. & P. 558; 
 Acerro v. Petroni, 1 Stark. 100; 2 Phil. 
 Ev. 404, 405; Moody v. Kowell, 17 Pick. 
 498 
 
 6 1 Harr. ed. Newl. 259. Objections to 
 interrogatories, filed before the issuing of 
 a commission to take a deposition, should 
 specify the ground of the objection, in or- 
 der tiiat the adverse party may have an 
 opportunity to vary the interrogatories. 
 Allen V. Babcock, 15 Pick. 56; see Crad- 
 dock V. Craddock, 3 Litt. 77; Jones v. 
 Lucas, 1 Rand. 268. A leading interroga-
 
 IXTEREOGATORIES. 921 
 
 Leading questions are such as instruct a -vntness how to answer C.XXII.§12. 
 on material points, such as, " Did you not see or do such a thing ? " ^ ' ^v- — ' 
 or which, embodying a material fact, admit of an answer by a J;rrogatories, 
 simple negative or affirmative, though the question does not sug- what i 
 gest which.^ " Such questions, as well as those which fall more 
 directly under the denomination of leading questions, ai-G objec- 
 tionabie, because the evidence elicited by them is presented to the 
 Court, which is to judge of the effect of it, not as it would be if 
 it were the unassisted testimony of the witness, but in the form, 
 and with the coloring, that are prompted by professional skill and 
 a previous knowledge of the case which it is desired to prove. If 
 such a mode of proof were admitted, there would not be the same 
 probability that a witness would state the whole transaction, and 
 part only might be elicited ; the chance too, of detecting discre- 
 pancies in perjured or mistaken testimony would be diminished ; 
 nor are those objections removed by the power of cross-examina- 
 tion, which, as it often must be conducted without previous 
 knowledge of the answers which the witnesses will give, is not a 
 counterbalance to the focility afforded of presenting a selected 
 portion of the evidence in chief." ^ 
 
 It is to be observed, that, in order to render an interrogatory Must relate 
 objectionable, on the ground of its being leading, it must relate to ^^1 pomt. 
 some material point in the cause. " Questions which are intended 
 merely as introductory, and which, whether answered in the affirm- 
 ative or negative, would not be conclusive on any of the points in 
 the cause, are not liable to the objection of leading. If it were 
 not allowed to approach the points in issue by such questions, the 
 examination of witnesses would run to an immoderate length. 
 For example, if two defendants are charged as partners, a witness 
 may be pro[)erly asked whether the one defendant has interfered 
 in the business of the other." ^ 
 
 It is difficult, however, to suggest any rules, in the abstract, with Rules with 
 regard to what will or will not be considered as a leading ques- H^^^^^ 
 tion, as much, in every case, must depend upon the peculiar 
 circumstances attending it ; nevertheless, the avoiding such ques- 
 tions as may be c(msidered leading, is a point very important to be 
 attended to in the framing of interrogatories, as the consequences 
 of them may be a motion to su]»])ress the evidence taken upon 
 them, whereV)y the party Avill, in all probability, be de]n-ived of an 
 important part of the evidence upon wliich lie intends to rely. 
 
 tory in a deposition, taken when l)olh l See r'raddock r f Vaddock, 3 Litt. 77. 
 
 parties are present, must be objecte.i to at 2 i \\n\r. ed. Newl. 2.')!i; see also Phil 
 
 the time it is put to the witness, if at all. & Amos, 880; Lincoln v. Wright, 4 IJcav. 
 
 Woodman r. Coolhn.th, 7 (Jie.'nI. IH1; 106. 
 
 Slieeler v. Spear, a IJinn. 130; see Anon., » Phil. & Amos, 887. 
 
 2 Pick. 105. * Iftid.
 
 922 
 
 EVIDENCE. 
 
 r.xxii.§v2. 
 
 Objection 
 doi's not 
 njiply to 
 rross-inter- 
 ropitories. 
 But cross- 
 interrogato- 
 ries must not 
 apply to uew 
 facts. 
 
 Interrogato- 
 ries may be 
 referred for 
 scandal ; 
 but not for 
 impertinence 
 alone. 
 
 TiUe. 
 
 Tmlecd, it soonis tli;it, wIuto inlfrro^-.-iloric's arc o1)\iously Icfulins:, 
 tlio Court will, without any motion bi'iiio- made to su]i])ross the 
 deposit ion, think it a <::ood <;Tonnd to rejoct the evidence taken 
 upon it at the hi'arino;.i It may be observed, however, that where 
 de})ositions arc oticrcd in evidence in a trial at Law, they may be 
 i-ead notwithstanding the interrogatories on which tliey were taken 
 are leading ; — the other side ought to have a]i]>lied to the Court in 
 which they were taken to have them su])i>rcsscd.- 
 
 Cross-interrogatories are not sulyect to the same objections, on 
 account of their leading the witness, as interrogatories for exam- 
 ination in chief; care must be taken, how^ever, in framing them, 
 not to adajit them to the }>roof of new facts which it is not likely 
 the party examining in chief will attempt to substantiate by his 
 evidence ; for, although the adverse party may cross-examine as to 
 the points upon which a witness has been examined in chief, he 
 cannot make use of the same process to prove a different fact.^ If, 
 therefore, there should be any parts of a case which can only be 
 proved by a witness examined on behalf of the adverse party, the 
 proper course is, not to endeavor to establish them by cross- 
 examining that witness, but to exhibit original interrogatories for 
 the examination of such witness in chief; otherwise there will be 
 a risk that the evidence of the witness, as to these points, will be lost ; 
 for, if the reading of the deposition of the witness to the cross- 
 interrogatory be objected to at the hearing as involving new points, 
 the other party may also j^revent the reading of the cross-deposi- 
 tion by refusing to read the examination in chief.^ 
 
 Interrogatories, like all other proceedings in the Court, may be 
 the subject of a reference for scandal.^ It seems, however, that 
 they cannot be refeirecl for imj^ertinence alone.^ If the witness 
 himself objects to the interrogatory upon this ground, he should 
 do so, by demurrer, before he answers it.'' 
 
 Interrogatories for the examination of witnesses in a cause are 
 entitled, "Interrogatories to be exhibited to witnesses to be pro- 
 duced, sworn, and examined in a certain cause now depending and 
 at issue in the High Court of Chancery, wherein A. B. is plaintiff, 
 and C. D. is defendant, on the part and behalf of the above- 
 named plaintiff" (or defendant, as the case may be). Care must 
 be taken, in framing the interrogatories, that the title of the cause * 
 
 1 Delves v. Lord Bagot, 2 Fowl. Ex. 
 Pr. 129. 
 
 2 4 M. & S. 497. For the method of 
 suppressing depositions, see post. 
 
 3 Dean and Chapter of Ely v. Stewart, 
 2 Atk. 44. 
 
 * Smith V. Biggs, 5 Sim. 392; see 1 
 Greenl. Ev. § 440 et seq. ; 1 I'iiil. Kv. 
 (Co wen & Hill's ed. 1839) 272 et setj. and 
 
 notes referred to; Gresley Eq. Ev. (Am. 
 ed.) 49. 
 
 5 Cox V. Worthington, 2 Atk. 236. 
 
 6 White V. Fussell, 19 Ves. 113; see 
 Pvneent v. Pvncent, 3 Atk. 557. 
 
 "7 Jeffris V.' Whittuck, 2 Pri. 486; but 
 see Ashton v. Ashton, 1 Vern. 165; 1 Eq. 
 Ca. Ab. 41, S. C 
 8 Jones V. Smith, 2 Y. & 0. 42; Lincoln
 
 INTERROGATORIES. 523 
 
 is properly set out; as any mistake in this particular may he fatal r.XXii. §12. 
 
 to the depositions. Thus, where the plaintiff's Cln-istian name was ' v ' 
 
 mistaken in the title of the interrogatories, the depositions could 
 not be read, nor would the Court permit the title to be amended, 
 though most of the witnesses had, since their examination, gone 
 to sea.^ The reason of requiring this particularity, in the -title, is 
 the imjiossibility there would be of maintaining an indictment for 
 perjury, if such variance between the title of the cause and that of 
 the interrogatories should appear. 
 
 It is usual to prefix to all interrogatories, a general inquiry " as pi^st inter- 
 to the witness's knowledge of the parties, and the time when the rogatory as to 
 witness first became acquainted with each," &c. Orders appear to the parties. 
 have formerly been promulgated by the Court, to restrict this 
 practice, by which it is directed "that the articles which are 
 usually thrust into the beginning of every schedule of interroga- 
 tories, as it were of foi-m or course, touching the witness's knowl- 
 edge of the parties, plaintiffs or defendants, of the lands, towns, 
 and places in the pleadings, and the like, be not so needlessly used 
 as they are ; " ^ but, notwithstanding this order, the practice of 
 introducing a general inquiry of this nature is almost invariably 
 resorted to.^ 
 
 The interrogatories are broken into distinct inteiTOgatories, ac- Di\'ision of 
 cording to the subject-matter or the witnesses to be examined, but 'nten-ogato- 
 each interrogatory concludes Avith the following words : " Declare 
 the truth of the several matters in this interrogatory inquired Conclusion. 
 after, according to the best of your knowledge, remembrance, and 
 belief" These words, however, are mere matter of form, and are 
 not generally inserted in the draft, but are supplied in the engross- 
 ment. 
 
 It has frequently hapj)cned, that, in framing the interrogatories. Last inteiTog- 
 sorae point to which it is important that a witness should depose, ^^°''y; 
 has been omitted ; or else it has been found that a witness is capa- 
 ble of deposing as to some matter as to which it was not, at the 
 time, known that any witness could speak, in consequence of 
 which, evidence which would be important to the party would be 
 omitted, from the circumstance of no question being a<ldressed to 
 the witness calculated to elicit it ; it therefore became the practice under the old 
 to add to each set of interrogatories a general interrogatory calling pra^^t'^'c- 
 upon the witness to state whether he knew or could set forth any 
 matter or thing which might in any wise tend to the benefit or 
 .advantage of the party for whom he appeared, other tlian what lie 
 li.id l)('en interrogated to? And the witness, being examincil upon 
 
 r. Wright. 4 Heiiv. 166; Tritdiard t-. 2 Henmes's Ord. 71. 
 
 l-oiiik<'M, '2 I'.eav. 133. » Uresiey Eq. Ev. (Am. ed.) 48, 49. 
 
 1 White V. 1 aylor, 2 Vern. 435.
 
 924 
 
 EVIDENCE. 
 
 C.XXI1.§12. 
 
 Need not be 
 used 
 
 unless a gen- 
 eral interrog- 
 aton^ is 
 required. 
 
 Filing of with 
 Examiner. 
 Where there 
 is also a com- 
 mission. 
 
 Selection of 
 interrogato- 
 ries. 
 
 Allowed be- 
 fore Exam- 
 iner. 
 
 tills intorrogatorv, tluMi sI.iIim] wlind'vtT ni:ittor he had to proA'e, to 
 whidi no sjiecial inten-Doatory had Ik'oii addrossod, Tliis form 
 lias, howovor, hi'en alti'ird; and nOAV, by the 82d Order, of l)e- 
 eeiiiber, 1S;>;{, it has been directed, "that the last interroo-atory 
 now eoiinnoiily in use be in future altered, and shall stand and be in 
 the words or to the elleet lollowiiii;' : '•])o you know or can you set 
 forth any other matter or tliiuo- which may be of benelit or advan- 
 tage to the parties at issue in this cause, or either of them, or that 
 may be material to the subject of this your examination, or to the 
 matters in question in this cause?' If yea, set forth the same 
 fully and at larg-e in your answer."* 
 
 l>ut although the order directs Avhere a general interrogatoiy of 
 the nature of that formerly used as the last, is made use of, the 
 form shall be that jirescribed, it does not compel a party to use it.^ 
 So that it is optional witli the draftsman to insert a general inter- 
 rogatory or not. Where, however, he does insert one, it must be 
 in the form jirescribed by the 32d Order, otherwise the deposition 
 taken ujion it may be suj^jiressed upon motion.^ 
 
 The interrogatories being drawn and signed by counsel, must be 
 copied upon paj-chment, and, if intended for the examination of 
 witnesses in London, or within twenty miles of it, they must be 
 left with one of the Examiners of the Court, which is termed filing 
 interrogatories ; * but if any of the witnesses are to be examined 
 by commission, the plaintiff should file, with the Examiner, such 
 interrogatories only as apply to witnesses resident within the 
 jurisdiction of the Examiner's office.^ 
 
 The practice is, to draw all the original interrogatories exhibited 
 on behalf of one party in one set or schedule, leaving the selection 
 of such as are j^roper for the particular witnesses to the solicitor,^ 
 and where some of the witnesses of a party reside in London, and 
 some in the country, it is necessary to have one set of interroga- 
 tories only drawn by counsel ; and the solicitor, in jirocuring the 
 same to be engrossed, distinguishes and copies those intended tor 
 the examination of town witnesses, sejDarate from those intended 
 for country witnesses. 
 
 If the interrogatories are to be exhibited in the Examiner's 
 office, and witnesses are examined thereon, either party may, with- 
 out application to the Court or order for that purpose, exhibit one 
 or more interrogatories, or a new set of interrogatories for the fur- 
 
 1 This last interrogatory is the same as 
 that adopted by the Supreme Court of the 
 United States in Rule 71 of tlie Equity 
 Rules of that Court. See Greslev Eq. Ev. 
 (Am. ed.) .49. It is a fatal defect if this 
 general interrogatory does not appear to 
 be answered. Kichardson v. Golden, 3 
 
 Wash. C. C. 109; Dodge i;. Israel, 4 Wash. 
 C. C. 323. 
 
 2 Cover V. Lucas, 8 Sim. 200. 
 
 8 Jbid. 
 
 4 ] r. & V. 191. 
 
 6 Ibid. ; Ilinde, 320, n. 
 
 c See Beames's Ord. 71.
 
 INTERROGATORIES . 
 
 925 
 
 ther examination of the same or other witnesses.^ But when a 
 commission is taken out, the practice has been difierent. In Camp- 
 hell V. Scoiigal^- it appears to have been represented at the bar, 
 that the practice in country causes is to feed the commissioners 
 fi'om time to time with interrogatories for the examination, as 
 they can be presented either for original or cross-examination, 
 until the commissioners find that the supply of witnesses is ex- 
 haiisted; and although Lord Eldon observes that thex-e was no 
 doubt, that of late, interrogatories had been sent down into the 
 country, fi-om time to time, as often as prudence required, and 
 were returned, and that the Court had acted upon examination so 
 taken and returned, yet his Lordship said .the practice was not so 
 formerly ; and that he had frequently, when at the bar, drawn in- 
 terrogatories guessing at what any witness to be examined to any 
 fact in issue, could possibly represent, and that the interrogatories, 
 both for the cross-examination and for the original examination of 
 the defendants' fatnesses, wei'e prepared before the commission 
 was o]>ened : and, notwithstanding the representation made at the 
 bar, the practice of the Court appears to have been in conformity 
 with his Lordship's ^-ecollection. Indeed it obviously must have 
 been so, fi-om the nature of the oath which was administered to 
 the commissioners, Avhich was limited to the examination of wit- 
 nesses upon the interrogatories — " Now {i. e., at the time of ad- 
 admiuistering the oath), " produced and left with you." ^ This 
 word " Now " has been left out of the oath hereafter to be ad- 
 ministered to the commissioners, iinder the 104th Order of May, 
 1845; whethei', therefore, hereafter new interrogatories may be 
 exliibited before a commission, remains to be seen. 
 
 Lender the former practice, Avhere additional interrogatories were 
 required to be exhibited after the commission had been opened, 
 an order for that purjiose must have been oljtained.* 
 
 It is to be observed, liowever, that notwithstanding a commission 
 has been issued, and the parties have joined in it, and witnesses 
 have been examined, new interrogatories may be exhibited into 
 Court (/. e. before the Examiner), for the examination of new wit- 
 nesses at any time before ])ublication;'' but if a witness has been 
 examined by commissioners in the country, he cannot be examined 
 again before the Examiner, without a special order." 
 
 Interi'ogatories for the cross-examination of witnesses differ 
 very little iu form from original interrogatories; they may be filed 
 
 C.XXII.§12. 
 
 "Whether new 
 interrogato- 
 ries may be 
 exhibited be- 
 fore a com- 
 missioner. 
 
 "Whether an 
 order must 
 be obtained. 
 
 New inter- 
 rogatories 
 may be ex- 
 hibited tiefore 
 Examiner 
 notwith- 
 standing 
 commission. 
 
 Cross-inter- 
 rogatories. 
 
 1 Smith <'b I'r. rd. 1838, 354. 
 •■' lU \K».bi)i. 
 8 Poil. 
 
 * Carter v. Draper, 2 Sim. 63; King of 
 Hunover v. Wheatley, 4 IJeav. 78. 
 
 '' Lewis V. Owen, 1 Dii-k. 0; Ucames's 
 Ord. iif), S. C; Ilinde, 333. 
 « Ilinde, 333.
 
 926 EVIDENCE. 
 
 r.\Xll.§i;i. with tlio Exaiuinor wlio oxMinincs in cliief.^ Fonnorly tliis could 
 not be done without a s])eeial onler.'- 
 
 Section XITI. — Of the E.mminntion of Witnesses by the Ex- 
 aminer on Literroijatories.^ 
 
 Examination Witnesses in Chancery are examined either hy .in Examiner or 
 l>v Kxaminer, |)y oomniissioncrs specially ap})ointed for that j)urpose by com- 
 mission under the Great Seal.^ 
 Otfixin"-ihe '^\\<i tirst thing to be done by the party intending to examine 
 '""'^- witnesses before the Examiner, is to file his interi'ogatories, or 
 
 such of tliem as apply to the witnesses to be examined, in the 
 manner before pointed out.® lie must then procure the attend- 
 ance of his witnesses at the Examiner's office ; for which purj^ose 
 he ought to fix a day with the Examiner, when he will be able to 
 examine them, and to give notice of such day to the witnesses.® 
 Where wit- If the witness be in prison, his situation must be represented to 
 
 the Examiner, who will fix a day for attending at the prison to 
 swear and examine the witness. The Examiner (with whom the 
 interrogatories for the examination of such witness should have 
 been previously left) will then proceed to the prison, taking the 
 interrogatories with him, and, tlie witness being sworn thereto in 
 the common ibi-m, the examination is taken in the usual manner, 
 and the dej^ositions and interrogatories are returned by the Ex- 
 aminer to the office, to be kept, as in ordinary cases, until publica- 
 tion pass in the cause.' 
 ^j. gj^.j. In like manner, if a witness be incapable, by reason of sickness, 
 
 of attending at the Examiner's office to be examined, and it is not 
 thought necessary to sue out a commission to take his examina- 
 tion, the Examiner may go to the place of the witness's residence 
 
 ness IS m 
 prison, 
 
 1 Orel. 26, 1833. 6 Notice that witnesses will be examined 
 
 2 'I'unier v. Burleigh, 17 Ves. 354. at a particular tuveru in a city named m 
 8 By rule of Chancerj- in New Jersey, the notice, without naming the Ciiristian 
 
 ■when any cause shall be at issue, &c., it name ot the tuvein-keeper, is gond, unless 
 
 shall be the duty of the parties to proceed it is sho^n that there were in the same 
 
 and examine their witnesses within a city two tavern-keepers of the same sur- 
 
 reasonable time thereafter; and on a no- name. Overstreet v. Thompson, 1 Litt. 
 
 tice lor the examination of witnesses given 120. An irregularity in the service of 
 
 by either party, both parties may produce notice of examination will be considered 
 
 and examine iheir witnesses; but tlie as waived by a neglect to complain of it 
 
 Examiner, if required so to do, shall lirst in due season. Skinner fj. Dayton, 5 .John, 
 
 examine the witne-ses of the party wlio Ch. I'Jl. 
 
 first gave notice. Kule 60. 7 Before the Stat. 3 & 4 Will. IV. c. 94, 
 
 4 In the United States Courts the com- it was necess^ary that the Master should go 
 
 mi.ssioneror commissioners sliall be named to the jjrison, as well as the Examiner, for 
 
 by the Court or a Judge thereof in all the purpose of administering the oath, 
 
 cases. Equity Kule 67. llinde, 330. 
 
 6 Supra, p. 914.
 
 EXAMINATION BY EXAMINER ON INTERROGATORIES. 
 
 927 
 
 and administei" the oath and take the deposition of the witness.^ 
 In either of the above cases notice must be giA^en in the usual 
 manner to the other party of the time and place of examination. 
 
 The form of the oath administered to witnesses in Chancery is as 
 follows : — 
 
 " You shall true answer make to all such questions as shall be 
 asked of you on these interrogatories, without favor or affection to 
 either party, and therein you shall speak the truth, the whole 
 truth, and nothing but the truth : So help you God." 
 
 After the witness has been sworn to the interrogatories, a jurat 
 stating the producing and swearing of the witness to the interrog- 
 atories, with his name, and the day and year when sworn, is in- 
 scribed upon the interrogatories, and signed by the Examiner.^ 
 If, after the witness has been sworn, any alteration is made in the 
 title, or any part of the interrogatories, they must be re-sworn, 
 but not re-produced.^ 
 
 . When new interrogatories are added, the witness must be sworn 
 to them in the same form. 
 
 Before the witnesses are examined, the Examiner ought to be, 
 and generally is, furnished with instructions as to which of the 
 interrogatories each witness is to be examined upon. The solici- 
 tor also supplies a minute of the evidence he expects his witness 
 to give ; but of such minute no use can be made in the examina- 
 tion.'* 
 
 After the examination is begun, the Examiner ought not to con- 
 fer with either party touching the examination, or take new 
 instructions resjiecting the same.^ 
 
 With respect to the method of examining a witness,*' Lord Clar- 
 endon's orders, which have been before referred to, direct, that 
 " the Examiner is to examine the deponent to the interrogatories 
 directed seriatim, and not to permit him to read over, or hear i-ead, 
 any otlier interrogatories, until that in hand be fully tiuished; 
 much less is he to suffer the dejDonent to have the interrogatories, 
 and pen his own depositions, or depart, after he hath heard an in- 
 terrogatory read over, until he hath perfected his examination 
 thei'eto. And if any witness shall refuse so to conform himseltj 
 the Examiner is thereof to give notice to the clerk of the otlier 
 
 C.XXII.§13. 
 
 Form of the 
 oath. 
 
 Proceediiif^ 
 after witness 
 has been 
 sworn. 
 
 Instructions 
 for Examiner. 
 
 Method of ex- 
 amination. 
 
 1 An order for this purpose seems to be 
 necessiiry. See Anon., 4 JIad. 403. ibi-i/ 
 (jvcere, if the Examiner is willing to go 
 ■without an order. 
 
 2 lliride, 322. 
 
 8 See .Mr. I'luiner's ri'turn of tlu; duties 
 of Kxiimiiiers to tlie (Jhaiiecry Commis- 
 sion, Cliiin. Hep. A|ipx. 15. No. 22, ]> .'>42. 
 
 ■• Mr. I'lumer's stati-ment, uIh supra. 
 
 6 Ilinde, 32.0; 4 In-t. 2"«. 
 
 lu the United Stales Courts, these 
 
 examinations may now be conducted 
 orally, and the testimony taken clown in 
 writing by the Kxiiminer, the examina- 
 tion andcross-exuniinatioii to beconducteil 
 in the mode pursued in Common Law 
 Courts. Aniv., p. 'J05, m-te; United States 
 Courts Equity lliile, 1)7, and the amend- 
 ment tin re"r,\M:inli 17, 1HU2, 24 Lmw Kep. 
 3b0, 3M. In iMa>sacliusett8, see I'ingree 
 V. Collin, 12 Cusli. 000.
 
 1)28 
 
 EVIDENCE. 
 
 C.\XlI.§t.{. 
 
 Examiner 
 may explain 
 niterroga- 
 torj'. 
 
 Depositions, 
 how to be 
 taken down. 
 
 Use of notes 
 bv witness. 
 
 Kiile the same 
 as at Law. 
 
 sulo, and to proceed no fiu-tlu'v in his examination without the 
 consent ot" tlie said ck'vk or order made in Court to warrant liis so 
 doing." * The same Orders afterwards direct, that " the Examin- 
 ers, in whom tiu' Court reposeth great conli(K'nce, are themselves 
 in person to be diligent in the examination of witnesses, and not 
 to intrust the same to nu'an and inferu)r clerks, and are to take 
 care and hold the witness to the })oint interrogated, and not to run 
 into extravagances and not pertinent to the question." ^ " More- 
 over, tliey are not to use any idle repetitions or needless circum- 
 stances, nor to set down any answer to a question to which the 
 examinant cannot depose other than thus, 'to such an interrogatory 
 this examinant cannot de])ose ;' and in case such imi»ertineiices be 
 observed by the Court, the Examiner is to recompense the charge 
 thereof to the party grieved, as the Court shall direct.^ 
 
 The Examiner is not strictly bound to the letter of the interrog- 
 atories, but ought to explain every matter or thing which ariseth 
 necessarily thereupon ; ■* and forasmuch as the witness, by his oath, 
 which is so sacred, calleth Almighty God (who is truth itself, and 
 cannot be deceived, and hath knowledge of the secrets of the 
 heart) to Avitness that which he shall depose, it is the duty of the 
 Examiner gravely, tem})crately, and leisurely to take the deposi- 
 tions of witnesses, without any menace, disturbance, or interrup- 
 tion of them in hinderance of the truth.^ 
 
 The Examiner, having read an interrogatory to the witness, 
 takes down the answer in writing uj^on paper, concluding the an- 
 swer to each interrogatory before the following one is put. 
 
 A witness may be permitted to use such short notes as he brings 
 with liim to refresh his memory, but not the substance of his depo- 
 sitions ; nor may he transcribe such notes verbatim.^ The rule at 
 Law is, in this respect, the same ; and in an anonymous case in Mr. 
 Ambler's reports,^ Lord Hardwicke said, " that, at Law, a witness 
 is allowed to refresh his memory by notes as to dates and names, 
 because there is notliing to guide the memory as to them ; but he 
 never knew a Court of Law admit the whole evidence to be given 
 from writing. There is no certain rule how far evidence may 
 be given from notes ; some Judges had thought, and he* was (he 
 said) inclined the same way, that the witness might speak from 
 notes which Avere taken at the time of the transaction in question, 
 but not if they were written afterwards." * 
 
 1 Beames's Ord. 187; see Hickok v. 
 Farmers' and Mechanics' Bank, 35 Vt. 
 476. 
 
 2/6. 188. 
 
 3 Jb. 190. 
 
 ■* lliude, 325; 4 Inst. 278; see also Pea- 
 cock's Case, 9 Uep. 70. 
 
 6 Hinde, 325; 4 Inst. 278. 
 
 6 (Jurs. Cane. 260; ante, p. 906, liote. 
 
 "! Anon. Amb. 252. 
 
 8 bee Pliil. & Amos, 891 ; see Hickok v. 
 Farmers' and Mechanics' Banlc, 35 Vt. 
 476; p. ante, 906, note.
 
 EXAMINATION BY EXAMINER ON INTERROGATORIES. 
 
 929 
 
 In that case, a motion was madt to sujjpress a deposition taken C.XXIT. §13. 
 before commissioners, because the attorney for the plaintifl* had 
 written down the whole in the exact form of the deposition before 
 it was taken ;. and, though it appeared that the witness had told 
 him the lacts and circumstances mentioned in it, yet his Lordship 
 said it would be of dangerous tendency to permit it to be read ; 
 for in depositions, it is natural to state the evidence as given by 
 the witnesses, but that, in the case in question, the attorney had 
 methodized and worded it ; and that it was, therefore, no more 
 than an affidavit.^ 
 
 In order to secure the statement of the evidence upon the dep- 
 ositions in the very words of the witness, the stat. 3 & 4 Will. IV. 
 c. 94, § 27, has enacted, that all depositions of witnesses examined 
 in the High Court of Chancery are to be taken in the first person ; 
 formerly the practice was to take them in the third person.- 
 
 If a witness to be examined does not understand Englisli, an 
 order should be obtained to appoint an interpreter to interpret the 
 interrogatories and depositions.^ The person so appointed must 
 be sworn to intei-2:)ret truly, and the depositions of the witnesses 
 are to be taken down by the Examiner, from the interpretation, in 
 Enorlish.^ It was Lord Nottingham who established the rule that 
 " no aUen should be examined as a witness without a motion first 
 made in Court to swear an interpretei*, that the other side might 
 know him, and take exceptions to the interpreter." ^ 
 
 When all the interrogatories, upon which the Examiner has 
 been instructed to examine the witness, have been gone through, 
 the Examiner carefully reads over the whole deposition to the wit- 
 ness, who, if he be satisfied with it, signs each sheet of it in the 
 presence of the Examiner. 
 
 If the witness wishes to vary his testimony, or to make any al- 
 teration in or addition to it, he must do so before signing the 
 deposition; for, by an order of the Court, when witnesses are 
 examined in Court, they are to perfect and subscribe their deposi- 
 tions to such interrogatories as they have answered, before tliey 
 depart fyom the Examiner or his deputy ; and tliey are not to be 
 pennitted to make any alteration thereof at any time thereafter 
 
 Depositions 
 to be taken in 
 tlie first per- 
 son. 
 
 "Where the 
 witness does 
 not undei^ 
 stand 
 English. 
 
 Depositions 
 to be read 
 over to wit^ 
 ness. 
 
 wlien witness 
 may alter or 
 add to depo- 
 sition; 
 
 not after 
 signature ; 
 
 1 Phil. & Amos, 891; see also Shaw v. 
 Liiidsev, 15 Ves 380; Ferrv «• l'"is>lier, 
 cited lb. 382; I'hil. & Amos, 806; St. 
 Catherine Dock Co. v. Alant/,;;u, 1 Col. "J4; 
 see hickok v. I'anner^' iin'l Jlecliaiiics' 
 Bank, 36 Vt. 470; (inlt, p. 'JU6, note. 
 
 ■^ Uy Cliiiiicery liule m, in New Jersey, 
 the Examiner shall wmuhcT each page of 
 tlic examination laketi liy him, and also 
 every tenth line of the ^ame, leaving sulli- 
 cient margin lor the purpose; and where 
 more I ban one wilnes-4 is examiiic<l, he 
 shall annex aiieparate leal to tlie exaniiiia- 
 
 VOL. I. 
 
 lion, containing a list of the names of the 
 witiiesse.-*, and u reference to the pages on 
 which their examination respectively com- 
 mences; and no cusfs are to be t:ixed lor 
 any examination where this rule is not 
 strictly comjjlied with. 
 
 " .-lee Ciilpins v. Consequn, 1 Peters C. 
 C. 8.j; Aiiiory v. I'ellows, 5 Ma^s. 2r.». 
 
 < Smith r. Kirk|)atnck, 1 Dick. 103; see 
 also Lord IJelmorc v. Anderson, 2 Cox, 
 288, and 4 Bro. C C. 90, S. C 
 
 6 2 Swanst. 261, n. 
 
 69
 
 i)30 
 
 EVIDENCE. 
 
 (\XXIl.§i;V 
 
 IVath of 
 witness 
 bot'ore cross- 
 oxMuiinntion 
 will not artect 
 ili'posiUoua. 
 
 Cross-exami- 
 uution. 
 
 Object of 
 notice of 
 name and 
 description 
 of witness. 
 
 without lo:ivo of the Court, unless it be in some circunistaiu'e of 
 tiiiu" or the like, or for tiKikiui; jierfeet of :i sum upon view of any 
 deed, l)ooi<, oi- writiiiu', whirh tht' witness shall show to the Exam- 
 iner before Ite permits siieh alteration.^ 
 
 It is to be notieed, that the signature of a witness to his exami- 
 nation is absoluti'ly necessary, and that if a witness should die after 
 his examination is completed, but before it is signed, the dep- 
 osition cannot be made use of- It seems, however, that if a- 
 witness, having signed his examination in chief, dies before he is 
 cross-exaniined, his depositions may be read as evidence ; the 
 Court, however, bearing in mind the fact that the cross-examina- 
 tion has- not taken elfect, esi)eeially if it should appear tliat the 
 party had lost any material fact Avhich was Avithin the knowledge 
 of the witness, and cortld not liave been proved by other means.^ 
 
 If a witness refuses to be cross-examined, his deposition cannot 
 be read.* 
 
 By the 'iGth of the Orders of 1828,^ the Examiner who takes tlie 
 examination in chief is at liberty to take his cross-examination 
 also; before that time, the cross-examination of a witness was 
 taken before a cUiferent Examiner from the one who examined him 
 in chief; ^ a practice whicli appears to have been sanctioned by 
 the Stat. 50 Geo. III. c. 8, by which it was directed, that the wit- 
 nesses on ditiereut sides of the same cause, should (if tlie same 
 was practicable) be examined by different Examiners.'' 
 
 We have seen before, that, previously to the examination of a 
 witness, a notice in writing of the name and descri])tion of the 
 
 1 Beames's Ord. 74. A witness may 
 expl;iin or correct a mistake made by him 
 at any time before his examination is 
 finally closed; but no part of liis tesli- 
 moi.y, previously reduced to writing, can 
 be erased or altered. 1 Iloff. Ch. Pr. 463. 
 Under the foruier practice in Chancery in 
 >Cew York, amendments of testimony were 
 allowed in open Court, after publication 
 and at the hearing, on an allegiition of 
 mistake in taking down the testimony. 
 Denton v. .Jackson, 1 .John. Cb. &:i6. So 
 a re-examination has been allowed on the 
 affidavit of the witness that his testimoiiy 
 in material parts was not truly taken 
 down. Kingston v. Tappen, 1 John Ch. 
 36«. The existence of the mistake ouglit 
 to be made out to the perfect satisfaction 
 of ihe Chancellor. • Gray v. Murray, 4 .John. 
 Ch.413; .see Ilalloch f.Smith, 4.lolin. Cli. 
 C4a; Newman r. Kendall, 2 A. Iv. Marsh. 
 236. A witness examined while incom- 
 petent, bj' reason of intertst, may be re- 
 examined :ifter hii competency is restored. 
 Iladdix V. Iladdix, 5 Litt. 202; .see Dun- 
 ham V. Winans, 2 Paige, 24. 
 
 - Co;.eland v. Stanton, 1 P. VVms. 414. 
 The signature of the witness seems not to 
 be held necessary to a deposition in man}- 
 
 of the States; see Moulson v. Hargrave, 1 
 Serg. & R. 201; Mob ley v Hamit, 1 A. 
 K. Marsh. 590; Rutherford v. Nelson, 1 
 Haj'w. 105; Barnett v. Watson, 1 Wash. 
 37'i; Wiggins v. Pryer, 3 Porter, 430. 
 
 8 O'Callaghan v' Murphy, 2 S. & L. 
 158. A witness became interested by a 
 death while undtr examination. The 
 death occurred during his cross, but before 
 further direct, examination. 1 he Court 
 allowed the deposition to stand so as to 
 embrace the direct and cruss-examination, 
 but struck out the lurtlier direct. Freara 
 V. Dickinson, 3 Kdw. Ch. 300. 
 
 4 Prac. Reg. The testimony o? the 
 witness is complete, so far as the party 
 calling hira is concerned, when the direct 
 exam nation is finished and signed by the 
 witness; but the parly calling him is 
 bound to keep the witness before the 
 J'^xauiiner a sufficient length of time after- 
 wards, to enalle the adverse party to com- 
 plete the examination, or the deposition 
 may be suppressed. Watertown v. Cowen, 
 5 Paige, 510. 
 
 5 Ord. 1828. 
 
 See iioup V. Ilaight, 6 .John. Ch. 335. 
 7 Turner v. liurleigh, 17 Ves. 354.
 
 EXAMINATION BY EXAMINER ON INTEEEOGATORIES. 
 
 931 
 
 witness is to be served upon the adverse solicitor. The object of 
 this notice is, that in case the adverse party shall have occasion to 
 cross-examine the witness, he may have an opportunity of doing 
 so. The cross-inteiTogatories ought to be filed before the exami- 
 nation in chief is completed ; and if they are so filed the party 
 producing the witness is obliged to procure him to stay or return 
 to be examined.-^ 
 
 Where the inteiTogatories for cross-examining a witness are not 
 filed, or the witness is not required to be cross-examined whilst he 
 is under original examination, but is allowed to depart about his 
 business, the party who intends to cross-examine that witness must 
 procure his examination in the best manner he can : the adverse 
 party is not bound to produce him again ; but as it is usual after 
 the witness is sworn, if he be resident in' London, for the Exam- 
 iner to aj)point some other day for him to attend to be examined,- 
 the party intending to cross-examine has generally sufiftcient oppor- 
 tunity to prepare and file his interrogatories. In the mean time, 
 however, to prevent the examination being taken without the 
 cross-examination, a note in Aviiting may be stuck up in the Exam- 
 iners oftice, that if such a person comes to be examined in such a 
 cause, let him be cross-ex:imined.^ 
 
 In the case of Keymer v. Pering,* it is stated, that " the practice 
 of the Examiner's office is, that where a party produces a witness 
 to be examined by one of the Examiners, the opposite party hav- 
 ing notice, and intending to cross-examine the witness, makes an 
 appointment with the other Examiner for that purpose, and then 
 gives notice of the time apjiointed to the witness, and also to the 
 solicitor of the i)arty producing the Avitness." It appears from the 
 case, that if the i)arty intending to cross-^examine neglects to make 
 the aj)pointment, he loses the right to cross-examine. 
 
 If a witness refuses to attend to be cross-examined, an applica- 
 tion may be made to the Court (it is presumed in the same manner 
 already pointed out in the case of a witness refusing to be exam- 
 ined in chief),^ which will compel the witness to do what the 
 j)arty has a right to require of him.*' 
 
 Some doubt appears to exist whether a subpoena will lie to com- 
 pel a witness to attend for the purpose of being cross-examined. 
 
 If a party examining a witness does not allow a sutlicient time 
 for cross-examination before the time for passing publication ex- 
 pires, and cross-interrogatories are left, such party must either 
 enlarge jniblicatiun or tlie dej>osition will be sup])ressed.' 
 
 C.XXII.§13. 
 
 1 llinde, 32.3. 6 Ante, p. 'J2G. 
 
 2 Hindi!, 323. I lit- deposition-', how- 6 (Jourteimy v. lloskiiis, 2 Uiiso. 25! 
 ever, ulwaVK bear dale, liie day ot ihe ' 1 Siiiitli's (y'h .I'r. 3d ed. 470; iiiid 
 ►wearing. Kiviiierj;. rerui;,', 10 Sun. 17U; ««/«, p. 1 
 
 8 Hindu, 323. uule. 
 
 8 Hind.!, 323. 
 * 10 Siui. Ibl. 
 
 53. 
 .Heo 
 p. U30, 
 
 Where cross- 
 interrogato- 
 ries not tiled 
 before exam- 
 ination ter- 
 minated. 
 
 Where wit- 
 ness rofuses 
 to be cross- 
 cxamiued.
 
 *l.'^'2 
 
 EVIDENCE. 
 
 f.\\ll.§14. 
 
 How lone; 
 coiitimiea 
 under present 
 practice. 
 
 A witiioss who is cross-examined must be SAVorn to the cross- 
 inti'irouMtoric's :is wi'll :is to the originiil iuterrogMtories. 
 
 I'luU'r [\\v |ir;utir(.', hrlore the Orders ol' Muy, 1845, came into 
 operation, where the Kxaniiner was served with a copy of a rule 
 to jtass ])ul)lieation, lie eould not, alter the day fixed by such rule 
 for passing publication, examine any more witnesses, even though 
 the witnesses had been already sworn,^ unless he w'as served with 
 an order to enlarge })ublieation ; in which case either j)arty might 
 examine his witnesses as long as the publication continued en- 
 largeil.- Where, however, a witness was examined, by mistake, 
 two days after publication had passed, and was cross-examined by 
 tlie defendant, the Court would not suppress the deposition.' 
 Xow, as we have seen, publication })asses without rule at the expi- 
 ration of two months' after the filing of the replication, unless 
 such time exjjires in the long vacation, or is enlarged by order. It 
 is presumed, that, under the present practice, any examination of 
 witnesses alter the time for publication has arrived, will be irregu- 
 lar, w^hether notice be served upon the Examiner or not.* 
 
 Section XIV. — JEkcamination of Witnesses de bene esse. 
 
 Origin of the 
 practice. 
 
 The Court of Chancery, in its original institution, participated 
 much in the practice adopted by the Courts of Civil Law. The 
 civilians had a manner of examining witnesses, in perpetiiam rei 
 memoriani, which w^as twofold : either the common examination, 
 or in meliori forma. The common examination was where the 
 witnesses were very old and infirm, sick, in danger of death, or 
 were going into distant countries. In this case, it was usual to 
 file a libel, and, without staying for the litis contestation the plain- 
 tiff examined his witnesses : immediately giving notice, if it were 
 possible, to the other side, of the time and j)lace of the examina- 
 tion, that he might come and cross-examine such witnesses, if he 
 thought fit ; and these depositions stood good in case the witnesses 
 died, or went abroad; but the plaintiff was obliged edere actionem 
 within a year : otherwise, the depositions went for nothing. If 
 the witnesses hved, or did not go abroad into distant countries, then 
 they were to be examined ^os< litem, contestatam.^ The examination 
 in perpetuam, rei rnemoriam in meliori forma was ad transumenda 
 
 1 Heames's Ord. 73, 186. 
 
 2 Anon., 1 Vern. 253. 
 
 3 Hammond v. , 4 Dick. 50. 
 
 ■* In the case of Green v. Wheeler, de- 
 cided New York Chancery, Aug. 16, 1842, 
 Mr. Chancellor Walworth held, tliat where 
 aa examination of witnesses is commenced 
 
 before tiie time for taking testimony ex- 
 pires, it may be continued by the Kxam- 
 iiier, if necessary, alter tiie expiration of 
 such time; and until an order to close the 
 proofs is actually entered. 
 
 6 Gilb. For. Kom. 118, 119; Hinde, 365.
 
 EXAMINATIOX OF WTTNTESSES DE BENE ESSE. 933 
 
 instnimenta ; and in that case, there must have been a litis con- C.XXII. § 14. 
 
 testatio . before the examination : because there was no need of ^^ > ' 
 
 so much celerity in proving the instruments as there was where 
 the witnesses were likely to die, or were going into remote parts. 
 In these cases, the plaintiff was not bound to proceed in any action 
 upon those instruments within the year. But in both cases, it 
 seems that lyublicatio testium took place, when the judgment was 
 begun before the ordinary Judge, or, Avhich is the same thing, when 
 there was a litis contestatio} The examination i«joer/jeiMa?n ?'ei 
 memoriam in meliori formdy has been adopted by the Court of 
 Chancery ; and the practice with regard to it will be considered 
 when we treat of suits instituted for the purpose of perpetuating 
 the testimony of witnesses.'^ The common examination in i^erpet- 
 uam rei tnemoriam has likewise been adopted by Courts of Equity, 
 in their practice of examining Avitnesses de bene esse : ® which forms 
 the subject of the present section. 
 
 The examination of a witness de bene esse ordinarily takes place : In what cases 
 where there is danger of losing the testimony of an important wit- resOTt^d t 
 ness fi'om death, by reason of age (as where the witness is seventy 
 years old and upwards;* or dangerous illness) ; ^ or where he is 
 about to go abroad;® or where he is the only witness to an im- 
 portant fact.'' In such cases, the Court, to prevent the party from 
 being deprived of the .benefit of his evidence, will permit his depo- 
 sitions to be taken before the cause is at issue, in order that, if 
 the witness die, or be not forthcoming to be examined after issue 
 joined, the depositions so taken may be used at the hearing.* 
 
 The examination of a witness de bene esse may be incidental to incidental to 
 
 1 Gilb. For. Rom. 118; Hinde, 365. 77; Pearson v. Ward, 2 Dick. 648; Han- ^^'^^ ^^^' 
 
 2 See /J0«^ Chtip XXXIV. § i. Bills to kin v. Middleditch, 2 Bro C. C. 641; 
 Perpetuate Teftimwiy. Brydgp.s r. Hatch, 1 Cox, 423. In Karl 
 
 8 Hinde, 368. ot'Chohnondely v. P'arl of Orf'ord, 4 Bro. 
 
 * KowR V. , 13 Ves. 201 ; Forbes v. C. C. 157, two witnesses were ordered to 
 
 Forlies, 9 Hare, 46], where the witness be examined de bene esse: being the only 
 
 was a pjirtv to the cause. Liiigan v. Hen- persons who knew the material fncts. 
 
 derson, 1 "Bland, 238; Ails v. Sublit, 3 » Hinde, 368; Gilb. For. Horn. 140; 2 
 
 Bibb. 204 I'hil Ev. (Cowen & Hill's notes) note (42) 
 
 ' Belliimv tv .Tones, 8 Ves. 31; see Clark pp.38 and 39, and cases cited; 2 S'ory 
 
 V. Dibble. 16 Wend. 601. Kq. ,Tur. §§ 1.513-1.516; Storv Kq. I'l. §"§ 
 
 6 Bown V. Child, 3 Sim. 457; Grove v. 307-310. By the 70th Equitv Rule of the 
 Young, 3 De G. & S. 397: 13 .lur. 847; United States Courts, it is pVovided that • 
 M'Infosh »' Great Western Railway Com- "After any bill is filed, and before the 
 
 pany, 1 Hare, 328. Where a witness is defendant liath answered the same, upon 
 
 about to depart from the State, to reside affidavit made, that any of the plaiiitifT's 
 
 abroad, the Cdurt, on petition, vi-rified by witnesses are aged, "r inlirm, or goini; out 
 
 affidavit and motion for that purpf)se, will of the country, or that, any of iIkmii is a 
 
 (ir'ler him to be examined ile bene, esse, single witness to a material fact, the clerk of 
 
 without previous noticf of the motion. the Court sliall, as of course, upon the appli- 
 
 Kockwell r. Folsom, 4 .lohn. Ch. 165. In cation of the plaintiff, issue a commission 
 
 South Carolina, an attorney, prevented to such commis'^ioner or commissioners, 
 
 from being a witness by duties in another as a .Judge of tin- (,'ourt may direct, to 
 
 Court, mav be examined tie bene esse, l)y fake the examination of >uch witiu-ss or 
 
 commission. Huffman r. Barklny, 1 Hai witnesses i/e bene esse, upon giving due 
 
 ley, 34. So if the witness is going from notice to the adverse party of the time and 
 
 one St.ife to another. Story K(|. I'l. § .'!0S. place of taking the testimony." 
 
 7 Shirley v. Karl Ferrers, 3 ]'. Wins.
 
 934 
 
 EVIDKNCE. 
 
 C.X\I1.U4. 
 
 ■when to bills 
 to porpotuate 
 te^timouv. 
 
 I'aniiot bo, 
 after evi- 
 dence closed; 
 
 unless after 
 triiil of issue. 
 
 "Where evi- 
 dence of 
 witness is 
 required 
 at Law. 
 
 every suit; wljoreas tlie exaininaliou for (lie purpose of per])etu:it- 
 ing tlu' testiiuony, is the I'ruit oI'm suit iiistituti'd tor that, partie- 
 ular jmr])Ose. It may even be ineith'ulal to a suit to i)erpetuate 
 testimony, wluu-e tliere is danuer of the evidence of tlie witnesses, 
 whose testimony is intended to be j)erpetuated, being lost before 
 the suit lor j>erpetunting is ripe for a reguhu- examination,^ 
 
 In general, the Court will uot allow the examination of a wit- 
 ness de bene esae after the I'losing t)f the evidence; and, therefore, 
 wla-re, upon a hearing, an issue liad been directed, and an order 
 made that the dejiositions of the plaintiff's witnesses might be 
 read at the trial, in ease such witnesses, or either of them, shoidd 
 be dead, and an application was afterwards made that' the trial 
 should be postponed, and that the plaintiff slundd be at liberty to 
 examine another witness de bene esse: Lord Eldon, after consult- 
 ing with Sir William Grant M. R., said, that the motion Avas one 
 ■which could not be made with effect, without laying before the 
 Court very strong circumstances to induce it to permit the exam- 
 ination ; and although he would not say that it could not be granted 
 in any case, he refused it in the one before him,^ It seems, how- 
 ever, that where a witness, who has not been before examined in 
 this Court, has been produced at a trial at Law, and another trial 
 of the same matter is to be had, the Court will entertain a motion 
 for the examination of such witness de bene, esse, w\t\\ a view to 
 such second trial.'' And so, after the trial of an issue in the cause, 
 an application on the part of the plaintiff, for liberty to examine a 
 witness, who Avas above seventy years old, de bene esse, for the 
 purpose of securing his testimony in case of his death, upon the 
 ground that it was intended to move for a new trial, was granted.* 
 
 Sometimes it is required to examine a witness de bene esse, 
 either in support of, or iii defence to, an action at Law ; in such 
 case, it was formerly necessary that a bill should be fded in this 
 Court, Avith the proper affidavit annexed to it, praying specifically 
 that the witness might be examined de bene esse/^ and this may 
 still be done, although the Courts of Law have now power them- 
 selves to take such evidence.^ It is to be observed that an order 
 of this nature in aid of a proceeding at LaAV cannot be obtained 
 u})on a bill filed for any other i)urpose ; and that Avhere a bill Avas 
 filed for a commission to examine witnesses abroad in aid of a trial 
 at Law, and a commission had been sent out accordingly, but, be- 
 
 1 Frere v. Green, 19 Ves. 319; Camp- 
 bell V. Attorne\ -General, 11 Jur. N. S. 
 922; 14 W. K. 45. V. C. S. 
 
 2 Palmer v. Lord Avlesburv, 15 Ves. 
 299. 
 
 * Anon., cited by Lord Eldon, 10 Ves. 
 300. 
 
 * Anon., 6 Ves. 573. 
 
 6 Ld. Red. 150; Philips?;. Carew, 1 P. 
 Wms. 116; Andrews v. Palmer, 1 V. & B. 
 21, 23; 1 Newl. 450; ante, p. 394; post, 
 CI lap. XXXIV. § 4, Bills to Ptrpetuate 
 Testimony. 
 
 6 1 Will. IV. c. 22, § 4; see Taylor, 
 4; 72 c< sejf. ; Chitiy's Arch. 329 et seq.
 
 EXAMINATION OF WITNESSES DE BENE ESSE. 
 
 935 
 
 fore it reached its destination, one of the witnesses returned to Eno;- 
 hind, whereupon an application was made for leave to examine luni, 
 (h bene esse, ujion the ground that he Avas ahoiit to leave the country 
 again before tlic trial could be had, Sir John Leach V. C. refused 
 the motion : observing that this was a different relief, and that the 
 bill must be amended.^ 
 
 The cases in which the Court will make an order for the exami- 
 nation of witnesses de bene esse are not confined to those of age or 
 sickness, or in which the Avitness is the only person who can sj)eak 
 to the fact intended to be proA^ ed. The Court will give permission 
 for such an examination of witnesses in other cases which come 
 within the same principle ; indeed it will do so, whereA^er the justice 
 of the case ap])ears to require it. Thus, where an application was 
 made to examine the surviving witness to a will, de bene esse, on 
 the ground that the parties concerned all lived in America, 
 and that the surviAing witness Avas greatly afflicted Avith the 
 gravel, the order Avas made, although the Avitness Avas only stated 
 to be " upAvards of sixty years old." ^ So, also, where the age of 
 the witness Avas not stated, but the affidavit, upon Avhich the ap- 
 plication Avas made, alleged only that the witness Avas subject 
 to violent attacks of the gout, and from these attacks Avas un- 
 der the ajtprehension of dying, and that he Avas a material Avit- 
 ness, his testimony being required to prove the draft of a bond 
 which he had pre])ared, but AAiiich Avas lost, the Court of Exche- 
 quer made an order for his examination de bene esse? In like 
 manner, where a Avitness is about to go abroad, an order may be 
 obtained for his examination de bene esse.* The Court however, 
 will not permit the examination of witnesses de bene esse, on the 
 ground of their being about to go abroad, where it is in the power 
 of the party a]>plying to detain them till they have been examined 
 in the ordinary course. Upon this ground, the Court of Exchequer 
 refused to make an order, on the application of the East India 
 Comj)any, for the examination of witnesses de bene esse, who were 
 going to the East Indies : because they Avere the Company's ser- 
 vants, and they might have kept them at home,^ 
 
 It seems also, that, in a question of pedigree, Avhere the case de- 
 pends upon a chain of distinct circumstances in the knoAvledge of 
 different individuals, the death of one of whom would destroy the 
 whole chain, the Court Avill permit the examination of such individ- 
 uals d€ bene esse, although none of them come Avithin the de- 
 
 * Down V. Child, 3 Sim. 467; M'Intosh 
 V. GroMt Western Railway Company, 1 
 Harn, 328; MKctina v. Kvcritt, 2 Heav. 
 
 C.XXII. § 14. 
 
 Not confined 
 to cases 
 where the 
 witness is old 
 or sick, or 
 the only 
 witness ; 
 
 but allowed, 
 where no age 
 is stated, nor 
 immediate 
 death appre- 
 hended. 
 
 and where 
 
 witness is 
 about to go 
 abroad ; 
 Secus, where 
 the party 
 may detain 
 him. 
 
 Allowefl, 
 where death 
 of one wit- 
 n<'ss would 
 destroy a 
 whole chain 
 of evidence. 
 
 1 Atkins V. Palmfer, 5 JIad. 10. 
 
 2 Fit/.liugh V. \a:c, Ainb. 05; but, in 
 such cases, an ex pnrte fird'T is irregular; 
 Bfte M'Keniia v. Kveritt, 2 lieav. 188; 
 Hope I'. Hope, 3 Heav. 317, 323; ih n. 
 
 8 .Inpson V. Greenawav, 2 Fowl. E.\. 
 Pr. 103. 
 
 188; 'Orov'e v. Young, 3 De U. & S. 397; 
 13.lur. 847. 
 
 820. 
 
 Kast India Company v. Naish, l?unb.
 
 93 G EVIDENCE. 
 
 i\X\ll.§i4. siM-iption of witnesses -whose testimony is in d.-niger of being lost, 
 
 ' >- -' either from Mye t>r serious ilhiess.^ 
 
 K.'riiseil. Thr rule, however, th:it the I'xnniiiialioii ol'ii Avitness de bene esse 
 
 is'luu iho""^* will he iHMinitteil where the individual proposed to be examined 
 
 only witiioss is the oidv witness, Avill not be extended to eases Avhere tliere is 
 
 to till' saiiio , ' . , (• 1 1 1 
 
 ftut. jnore than one witness to the same tact, unless upon the ground 
 
 of the age or infirmity of the witness : therefore where an appli- 
 cation was made for leave to examine de bene esse one of two 
 sm-viving witnesses to a Avill, who was neither of the age of sev- 
 enty nor in a state of dangerous illness, on the ground that he was 
 a i>risoner in the Castle of York, charged with a capital felony, 
 no order was made.^ 
 
 Immediately From an observation Avhieh appears to have been made by Lord 
 
 anerbill Eldon, in Frere v. Green^ it may be inferred that an order of this 
 
 tiled. . •' 
 
 nature cannot be obtained before appearance, unless the defendant 
 is in contempt ; but the practice is not so, and an order to examine 
 a witness de bene esse, upon either of the grounds above stated will 
 be granted, upon an affidavit of the facts, immediately after the 
 filing of the bill, without waiting either for the defendant's appear- 
 Where de- «^nce, or for his being in contempt for non-appearance.* Tliere 
 fendant is in seems however, to be no doubt that the contempt of a defendant, 
 
 contempt. . . . „ . 
 
 in not appearing, would at any time be a reason for giving per- 
 mission to a plaintiff to examine his witnesses de bene esse, where 
 a proper ground is laid for it, even where the case does not come 
 within any of the three instances above mentioned.^ 
 „ , ^ , In JBown v. Child,^ an order to examine, de bene esse, a witness 
 
 ant's appiica- about to go abroad, was made on a sj^ecial application by the de- 
 answer."'*^ fendants, before answer. 
 
 Order for ex- ^'^ Order for leave to examine a witness de bene esse, upon the 
 
 amination : ground of the witiiess being seventy years of age, or dangerously 
 
 granted with- '^^^i o^* about to go abroad, may be obtained either by motion in 
 
 out notice. Court, without notice, or upon petition of course at the Rolls ; ^ 
 
 J, . but where the application is not made on the ground of the age or 
 
 required in dangerous illness of the witness, or that he is about to go abroad, 
 
 spec cases; ^j^^ Court will not make an order for his examination de bene esse, 
 
 as of course : so that, if a party wishes to examine a witness de 
 
 bene esse, upon a ground Avhieh cannot be arranged under either of 
 
 those classes, he must apply by motion in Court, of which notice 
 
 1 Shelley v. , 13 Ves. 56, 58; Shir- « Coveny v. Athill, 1 Dick. 355; Prich- 
 
 lev V. Earl Ferreri?, 3 P. Wms. 77 ; Hope ard v. Gee, 5 Mad. 364. 
 
 r.'Hope, 3 l$eav. 317, 323. o 3 Sim. 457. 
 
 2 Anon., 19 Ves. 321. 7 Belliimv v. Jones, 8 Ves. 31; Tom- 
 « 19 Ves. 320. kins t; Hai fison, 6 .Mad. 315; M'Kenna «. 
 * Dew V. Clarke, 1 S. & S. lOS, 115; Kveritt, 2 Reav. 188; M'Intosh v. Great 
 
 Fort r. Ra<rusin, 2 John. Ch. 146; see Western Uailwav Coinpiinv, 1 Hare, 328, 
 
 Wilson V. Wilson, cited 1 Newl. Ch Pr. 330; Grove v. Youn^', 3 De G. & S. 397; 
 
 287; Allen r. Annesley, 2 Jones Exch. 13 Jur. 847. For forms of motion paper 
 
 260. and petition, see Vol. III.
 
 EXAMINATION OF WITNESSES DE BENE ESSE. 
 
 937 
 
 must be given to the other side.^ In the case of Ilope v. Hope"- c.XXir. § 14. 
 
 Lord Langdale M. R. had to consider, whether an order for the ■ ., ' 
 
 examination de bene esse of a person alleged to be the sole wit- as where sole 
 
 . - „ 111 11^1-T J J .Witness to a 
 
 ness to a material fact, could be regularly obtamed ex parte, and material fact. 
 he came to the conclusion, that, in such a case, the application 
 should be made on notice; and it seems that the affidavit,. in sup- 
 port of such an application, ought to shoAV the facts as to which it 
 is proposed to exapiine the witness. If the order has been ob- 
 tained as of. course, in a case where a special application for it 
 should have been made, the adverse party may move, on notice, to 
 discharge it.^ 
 
 It seems, however, that, where a defendant is in contempt for J[J^/"^j;^. 
 non-appearance, such an order may be obtained without notice, ticc, when 
 and this even where the defendants are infants. Thus, in Frere contempt- "^ 
 V. Green* where the defendants were infonts and in contempt, and 
 it appeared by the messenger's return that they had absconded 
 and were not to be found. Lord Eldon, upon the usual affidavit of 
 the mateiiality of the evidence of the witnesses, and the plaintiffs' 
 undertaking to proceed with all due diligence, and with as much 
 expedition as the course and practice of the Court and the con- 
 tempt of the defendants would admit, to bring the cause to an 
 issue, and examine their witnesses in chief, made an order that the 
 ])laintifls should be at liberty to examine them de bene esse ; but 
 he provided, by the order, that, before ]uiblication of the deposi- 
 tions of such witnesses should be allowed to pass, proper evidence 
 should be produced to satisfy the Court that the plaintiffs had 
 complied with the above undertaking. 
 
 Althoii<di, in the instances above mentioned, an order to exam- Notice of 
 
 ■"^ ,• ii-T i- +• + • examination 
 
 ine a witness de bene esse may be obtamed upon motion or petuion of witness. 
 without notice, notice of the examination of the witness must, in 
 all cases, be given, in order that the other side may have the 
 power of cross-examination.*^ 
 
 The ajtplication for leave to examine a witness de bene esse must, Atiuhivit in 
 in every instance, whether made by a petition at the Rolls or by -^'j^^p^'i^llon . 
 motion to the Court, with notice or wdthout, be supported by an 
 affidavit of the facts which fonn the ground of the application : 
 such as, the age of the witness, and that he is a material witness 
 for the party making the application;" and also by the Record 
 
 1 Bellamy v. .Tones, 8 Ves. 31. For 
 form of notice of motion, see Vol. III. 
 
 2 3 Hfav.317,.T23, n.,an(l see Pearson v. 
 WanI, 1 Cox. 177. 
 
 8 See M'Kinna v. Kveritt, vbi sup. ; 
 Hope t>. IIo()f, 3 Beav. 317; for form of 
 notice of motion, cee Vol. III. 
 
 * 19 Vp«. 319, 320; see also Shelley v. 
 , 13 Ves. m. 
 
 6 Lovedeii v. Milfonl, 4 Bro. C C. 540; 
 
 Orel. 5 Feb, 1861, r. 22; ante, pp. 901, 
 91.5; for form of notice, see Vol. 111. 
 
 6 Grove V. Younp. 3 De G. & S. 897 ; 
 13 Jur. 847; see Kocitweli v. Kolsom, 4 
 .John. CM. IG.-j; Storv V.(\. I'l. § 309. For 
 form of am.lavir, see Vol. III. The iifli- 
 (lavit slioul'l tiive tlic place of residetice 
 and <k'scription of the witnesses whom it 
 is soufrht to have examined de bene esse. 
 O'Farrel v. O'Farrel, 1 Moll. 304.
 
 938 
 
 EVIDKNCE. 
 
 C\X\ll.§M. 
 
 Form of 
 order 
 
 Ser\'ice of 
 oixler. 
 
 l^Iethod of 
 examination. 
 
 Notice of 
 examination. 
 
 After exami- 
 nation de bene 
 esse, due dili- 
 gence must 
 be used to 
 examine in 
 chief. 
 
 :nul Writ Clerk's oorlificate tli.it Itic bill luis boon filod, wlioro (!io 
 tIot"oiul:uU has not :n»i>oari'(I, or ol" such appoaranoo, wliorc an a|i- 
 ]ioaranoo lias boon ontoroil b_v him. Wlu'ro .'ni ai(]»licat ion is niado 
 lor an onlor to oxaniino a witnoss on tho liround that he is the 
 only porson who knows the fact, tho artidavit should state the par- 
 ticular points to which his evidence is meant to ap])ly i'' and should 
 show tho ground which the ])erson who makes it has for believing 
 that the witnoss is tho only person.^ 
 
 The order to examine witnesses de bow esse names tho witnesses 
 to bo examined, and only authorizes the examination of the ]ier- 
 sons named therein. Where the order is obtained without notice, 
 after appearance, it must be served upon the solicitor on the other 
 side ; but where it has been obtained before appearance, so that 
 there is no adverse solicitor upon whom it can be served, tho order 
 usually directs, that notice of the order be given to the defendant, 
 or a copy tliereof be loft at his dwelling-house, or usual place of 
 abode, with his servant, agent, or other person residing there, a 
 specified number of days before the examination of the witnesses.' 
 This is done, in order to afford the adverse party an opportunity 
 for cross-examination of the witnesses. 
 
 The examination of witnesses de bene esse is taken before an 
 Examiner of the Court, or Special Examiner, in the manner pre- 
 scribed by the 15 & 16 Vic. c. 86;* and tho depositions are trans- 
 mitted by him to the Record and Writ Clerks' Office to be there 
 filed.5 
 
 Formerly, it was necessary to give three days' notice of the tinae 
 and ])lace of the examination to the other side.^ Now, it is pre- 
 sumed, forty-eight hoiirs Avill be sufficient ; but the notice must 
 also state the name and description of the witness to be examined, 
 and the time and place of examination.'' 
 
 As the examination of witnesses de bene esse is only a provi- 
 sional measure, to guard against the loss of important evidence 
 before the cause is in a state in which a regular examination can 
 take place, it is the duty of the party examining to take the 
 earliest o])portunity to examine in tho ordinary course, and if he 
 is guilty of any laches in so doing, the benefit of the examination 
 
 1 Pearson v. Ward, 1 Cox, 177 ; 2 Dick. 
 648; Hope v. Hope, 3 Beav. .317, 322. 
 
 2 Rowe V. , 13 Ves. 261. 
 
 3 See order in Hope v. Hope, 3 Beav. 
 317; but see form of order in Seton, 1236, 
 No. 2, wiiicli differs as to the notice. Tlie 
 statute of Illinois authorizes a person 
 filinff a bill, before i=sue joined, to take 
 depositions substantiating its averments; 
 and witbout an oriler to that effect, he 
 may proceed to takf his depositions de 
 bene esse. Doyle v. Wiley, 15 111. 576. 
 
 * Sects. 31, 32; see ante, pp. 903, 904; 
 and see Ord. 5 Feb., 1861, r. 11; Cook v. 
 Hi.ll, 9 Hare Ap. 20. 
 
 ^ Odiee copies of the depositions may 
 be obtiiined at that ofRci% as soon as they 
 are filed. Braithwaitc's Pr. 122. 
 
 8 Tomkins v- Hurrison, 6 Mad. 315; 
 M'Intosh V. Great Western Railway Com- 
 pany, 1 Ilare, 328. 
 
 7 "Ord. 5 Feb, 1861, r. 22; for form of 
 notice see Vol. HI.
 
 EXAMINATION OF WITNESSES DE BENE ESSE. 939 
 
 de bene esse Avill be forfeited.^ In the Did-e of Hamilton v. Jfei/- C.XXII.§14. 
 
 nal,^ however, Lord Hardwicke made an order for the pubHcation ' > ' 
 
 of depositions taken de bene esse, although the original bill was 
 filed, and the examination taken, above thirty years before the 
 cause was brought to an issue ; but it seems that this was done 
 under particular circumstances, and that the delay was accounted 
 for. We have seen before,^ that in the instance of an application 
 to examine witnesses de bene esse, to prove a case against infant 
 defendants who were in contempt for non-appearance. Lord Eldon 
 made the order, upon the plaintiffs' expressly undertaking to pro- 
 ceed with all due diligence to bring the cause to issue, and to 
 examine the witnesses in chief. 
 
 Depositions, taken de bene esse, cannot be made use of without Order neces- 
 
 an order. The ordinary course of the Court is not to allow of l^^^' *°."*^ 
 . .*' .,-. ... depositious. 
 
 their use unless the witness dies before issue is joined in the cause, 
 
 so that there has been no opportunity to examine him in the ordi- 
 nary course ; or unless he is at a great distance, so that it is impos- 
 sible to have him examined again. These, however, although the 
 usual, are not the only cases in which the Court M-ill order deposi- 
 tions taken de bene esse to be used. It is in the discretion of the Where there 
 Court to determine whether the order shall be made or not ; and if„p,""^Sj,'iiJty 
 whenever it can be established, to the satisfoction of the Court, ti>'>f exami- 
 that there is a moral impossibility in the examination of witnesses can take*^ 
 in chief taking i)laco, it will make the order. Therefore, in Gasoti P'^'-"'^- 
 V. Wbrdsicort/i,* where a commission was sent to Sweden, to exam- 
 ine witnesses there, wliich the Government of Sweden refused to 
 permit, the Court allowed the depositions of those witnesses who 
 had been examined de bene esse to be read at the hearing : because 
 it was morally impossible to have tliem examined in chief. So ^ 
 also the Court has permitted depositions taken de bene esse to be 
 read, althougli there has been no strict proof of the death of the 
 witnesses : because the length of time which has elapsed since the 
 depositions were taken, hfis afforded a just ground for presuming 
 them to bo dead.^ 
 
 Sometimes the Court will allow depositions taken de bene esse to -where wit- 
 be made use of upon 'a trial at Law, on the ground that the witness, "css cannot 
 though alive, will be unable, from age or sickness, or other infirm- at Law. 
 ity, to attend at the trial.® In such cases, however, the more usual 
 course is (especially where there is any doubt whether the grounds 
 upon which the api>lication is to be made are such as will be suffi- 
 
 1 See Forsvth v. Ellice, 2 M'N. & G. 6 Anon., 2 Ves. 497; S. C. nom. Duke 
 209, 213; overruling S. C 7 Hare, 290. of HMinilton v. M.-vnal, 2 Dick. 788; 
 
 2 2 Dick. 788; S. C. nom. Anon., 2 "Ves. MnrMlon r. i'.oiina. l" Vcrn. a."?! ; .see also 
 S. 497. M'lntosii V. (Jicat Western Kailwa}- Coin- 
 
 8 Ante, p. 937; Frere v. Green, 19 Ves. panv, 7 De (i. M. &, G. 737. 
 319. Bradley r. Crackcnthorp, 1 Dick. 183. 
 
 * 2 Ves. S. 326, 33G; Amb. 108.
 
 iUO 
 
 EVIDENCE. 
 
 r.xxii.§u. 
 
 Depositions 
 can only be 
 used to sup- 
 ply place of 
 examination 
 in chief. 
 
 Order for 
 leave to use : 
 how ob- 
 tained, where 
 witness dead; 
 
 on other 
 grounds. 
 
 When to be 
 obtained. 
 
 oitMit. in .-i Court of L;nv, to authorize tho admission of the evi- 
 (hMU'o), to make an onlor tliat tlio officer, in wliose possession the 
 oriiiinal deposition is, sliall atti'ud with il at the trial, in order 
 tliat. if it slioidd be ]>roved to the satisfaction of the Court of Law 
 that the witness is unable to attend, the dej)ositions should be ten- 
 dered to be read : ^ it being the province of the Judge who tries 
 the cause at Law, and not of this Court, to decide on the admissi- 
 bility of the evidence, ujion the facts as they a]>pear before him.'^ 
 U))on this ground the Court has frequently refused to make an 
 order that the depositions, taken de bene esse, of a witness who 
 was alive, though sworn by affidavit to be unable to attend at the 
 trial of an issue at Law, should be read at the trial.^ 
 
 Depositions of a witness, examined de bene esse, can only be used 
 for the purpose of su]i]ilying the want of an examination in chief. 
 Applications for leave to use them, for other purposes, have been 
 refused.^ In Pegge v. Burnell^ an application was made to the 
 Court to allow a dejiosit-ion de bene esse to be read at Law, in order 
 to confront the witness and invalidate his testimony viva voce, 
 upon a new trial, on the ground that on his examination, at the 
 first trial, his evidence differed materially from what he had before 
 uniformly declared the fact to be ; and as the case made in su])]>ort 
 of the motion was a very strong one, and abundantly sufficient to 
 justify a departure from the strict practice, if it Avero possible in 
 any case to dispense with it, Lord Thurlow at first made the order, 
 but upon further consideration, and before the order was delivered 
 out, he altered his opinion, and refused it. 
 
 An order for leave to use a deposition, taken de bene esse, of a 
 witness dying before he could be examined in chief, may be ob- 
 tained on special motion with notice, supported by evidence prov- 
 ing his death, in the ordinary way.® 
 
 Where the application is made upon the ground that a witness 
 is gone to parts beyond sea, or upon any other grounds, it must be 
 supported by an affidavit of the facts relifed upon as the foundation 
 of the application. 
 
 The proper stage of the suit Avherein this application should be 
 made, seems to be after the closing of the evidence,'^, unless it is in 
 a suit, the sole object of which is the examination of a witness de 
 bene esse, for the purpose of using his depositions on a trial at Law : 
 in which case, the application should be made before the trial of 
 the action. The party moving should be jirepared with an affi- 
 
 1 Andrews v. Palmer, 1 V. & 15. 21; 
 see al'o Corbett v. Corbett, ib. 335; Palm- 
 er V. Lord Aj'lesbury, 15 Ves. 170; At- 
 torney-General V. Kay, 2 Hare, 518, and 
 form of order, ib. 519, n.; Gompertz v. 
 Ansdell, 1 Smith's Pr. 876. 
 
 2 Jones V. Jones, 1 Cox, 184. 
 
 3. Hinile, 390. 
 
 4 Cann v. Cann, 1 P. Wms. 567. 
 
 5 Cited, Itinde, 391; Pasch. 1781. 
 
 '' Iliiide, 388; for forms of notice of 
 motion and nffidavit, see Vol. III. 
 7. Hiiide, 388.
 
 EXAMINATION OF WITNESSES DE BENE ESSE. 941 
 
 davit of service of the notice of motion, in order that, if the other C.XXII. § 14. 
 
 side does not attend, the order may, notwithstanding, be obtained.^ ' r ' 
 
 If any irreguhirity be discovered, or the adverse party be advised Irregularity 
 
 of any ground of objection to the reading of the depositions, he !"}'■'" ^^, 
 
 ". .... . •"■ taUen advan- 
 
 snould give notice in writing to the adverse soHcitor, and move to '"J^'t- of before 
 
 discharge the order immediately upon the service of it, or on the ^'^'^"^s- 
 
 earliest opportunity : for it seems that, although depositions taken 
 
 de bene esse are irregular, yet it is too late to object to them, on 
 
 the ground of u-regularity, at the hearing of the cause ; ^ and on 
 
 this account, when the time- between the closing of the evidence 
 
 and the hearing of the cause is short, the Court wdll extend it, for 
 
 the purpose of allowing the party, an opportunity of examining 
 
 whether the depositions are regularly taken or not.^ And so, 
 
 where depositions taken de bene esse are read at the hearing of the 
 
 cause, it is a matter of course, if an issue is directed, to order them 
 
 to be read at the trial of the issue, notwithstanding an irregularity 
 
 in the examination.* 
 
 With resjject to the costs of examinations de betie esse, no spe- q^^^^ 
 eific rule appears to have been laid down, which makes any dis- 
 tinction between them and the costs of examinations under ordinary 
 circumstances : except, indeed, in the case of bills filed for the 
 purpose of having witnesses examined de bene esse, in order to 
 render their evidence available on a trial at Law. In such cases, 
 it is presumed, the costs must be regulated by the rule of the Court 
 with regard to bills of a similar description, namely, bills to examine 
 witnesses iti jyeij^etuam rei memoriam : in which case, a defendant 
 is entitled to apply for his costs immediately after the examination 
 of the witnesses has been perfected, upon the simple allegation that 
 he did not examine any witnesses himself.^ It niay be mentioned, 
 that in Deio v. Clarke,^ where the plaintiff had filed a bill for the 
 purpose of obtaining the examination of witnesses de bene esse in 
 aid of a proceedhig at Law, and obtained an order, ex parte, for the 
 examination of such witnesses, but afterwards the bill was demurred 
 to, and the demurrer allowed, the Court, besides the usual costs of 
 the demurrer, allowed the <lefendant his costs of the examination, 
 but not those occasioned by his cross-examination of the witnesses. 
 
 1 I'or form of affidavit, see Vol. III. 6 Foulds «. Midgley, 1 V. & 15. 138 ; iw»t, 
 
 2 Dean and X'hiipterof Ely v. Warren, Chap. XXXIV. § 4, H'dh to Peipttuate 
 2 Alk. IJ-ti; Hind.-, 2H'J. Teslimomj ; Morgan & Davey, 53, 14S). 
 
 8 Gordon v. Gordon, 1 Swanst. 171. '^ 1 ti. 6i H. lu», 115. 
 
 * lb. 166.
 
 EVIDENCE. 
 
 Section XV. — Demwi'crs by Witnesses. 
 
 llow a -wit- 
 ness can jiro- 
 tect himself. 
 
 (Grounds on 
 which he 
 may protect 
 himseh". 
 
 1. That the 
 answer may 
 subject wit- 
 ness to pun- 
 ishment, or to 
 forfeiture. 
 
 2. That the 
 answer may 
 lead to a 
 breach of 
 professional 
 confidence. 
 
 A Avitnoss (.'Ximiim'd botoro :m Exniiiiiicr iii.iy jirdlcct himsclfj by 
 donuuTor, from answering any question to Avliicli lie has a legal 
 objeetion.^ Tlie Avord "demurrer," however, is not, in this in- 
 stance, used in a very ajiprDjiriate sense : since it here signifies 
 merely the witness's tender of reasons why he shouhl not answer 
 the questit)n ; - and is not, like a demurrer in jileading, confined to 
 tlie facts appearing upon the record, but states the facts uj)on 
 which the witness relies as the ground of his objection. 
 
 The grounds upon wliich a witness may protect himself from 
 answering are, ])rincipally : 1, That tlie answer may subject him 
 to pains and penalties, or to a forfeiture, or something in the nature 
 of a forfeiture ; 2. That he cannot answer the qxiestion without a 
 breach of professional confidence. 
 
 1. "With respect to the first ground of objection, namely, that 
 the answer may expose the witness to pains and penalties, or to a 
 forfeiture, or something in the natui-e of a forfeiture, the reader is 
 referred to a former part of this Treatise,^ where the privilege of a 
 defendant,' to be protected from making the discovery i-equired by 
 the bill on this ground, has been discussed. It will be there found, 
 that the i^rivilege in such cases arises from an acknowledged 
 principle of Law, that no man is bound to answer, so as to subject 
 himself to punishment ; and as this principle is applicable as well 
 to witnesses as to defendants, the rules which are there found laid 
 down Avith regard to its a})plication to the latter case are equally 
 applicable to the former.^ • 
 
 2. The rules of exemption from discovery, on the ground of pro- 
 fessional confidence, proceed upon the same principles as are ap- 
 plicable to the case of defendants ; and the reader is, therefore, 
 
 1 15 & 16 Vic. c. 86, § 33. A witness 
 ma}", on assigning cause, demur to tiie 
 questions propounded ro him; upon which 
 the examiiiiition must be suspended until 
 the Court decides. Winder v. Difien- 
 dei-fler, 2 Bland, 166. Counsel have no 
 right to advise a witness that he is not 
 bound to answerii p;'.r(i:-ular intei rogator3'. 
 It is the duty of the Kxaiiiiiier to inform 
 a witness ot his legal rights. Tiivlor v. 
 Wood, 2 Kdw Ch. 94; 1 Uoif. Ch. I'r. 
 466. A witness who demurs to a question, 
 i> not the projjer person t^ br;ng it Lelbre 
 the Court. If the party putting the ques- 
 tion does not ask ior an attachment, nor 
 ill any way bring tlie pnint belore the 
 Court, no one else can. Tlie question 
 will be considered as waived, or the de- 
 murrer well taken, unless he who puts the 
 
 question persists in it, iind takes measures 
 tv liave the demurrer disponed of. Movv- 
 att V. Gridiiini, 1 Edw. Ch. 13. 
 
 2 Piukhuist V. Lowten, 2 Swanst. 194, 
 203. 
 
 8 Ante, p. 562. 
 
 4 See 2 Phil, on Evid. 487 et seq. ; Tay- 
 lor on Evid § 13Q8 el seq. ; Best on Evid. 
 § 126 et seq. ; Gresley on Evid. fcO et seq. ; 
 Osborne v. The London Dock Company, 
 10 Exch. 698, 701; 1 Jur. N. S. 93; Side- 
 bottom V. Adkins, 3 Jur. JM. S. 631; 5 W. 
 It. 743, V. C. S.; Heg. v. Boves, 1 B. & 
 S. 311; 7 Jur. N. S. 1158; Jie Aston, 27 
 Beav. 474; 5 Jur. N. S. 615; 4 De G. & 
 J. 320; 5 Jur. N. S 779; £x parte Fer- 
 nandez, 10 C. B. M. S. 3, 39, 40; 7 Jur. 
 N. S. 571.
 
 DEMURRERS BY WITNESSES. 
 
 943 
 
 referred for information upon this head to a former portion of this 
 Treatise, where these rules have been discussed witli reference to 
 the protection of a defendant from answering the bill.^ It may, 
 however, be noticed here, that the refusal of a client to allow his 
 solicitor to disclose professional communications is not a reason 
 for treating him as if he had kept a mateiial witness out of the 
 way, or refused or prevented the production of a document in his 
 possession.- 
 
 Where the witness is served \^^.th a subpoena duces tecu7n to pro- 
 duce a deed or other document, and, upon being asked to produce 
 it, objects to do so, either u})on the ground of his having an interest 
 in the deed, or upon any other ground,^ he may refuse, without a 
 formal demurrer. The course to be adopted by the party seeking 
 production, in such case, is to move, on notice to the witness, that 
 he do attend and produce the deed, and pay the costs occasioned 
 by his pi'evious refusal : upon the hearing of which motion, the 
 Court will decide whether the reasons alleged by the witness, for 
 his refusal, are satisfactory or not.^ 
 
 The question or questions put, and the demurrer or oljjection of 
 the Avitness thereto, must be taken down by the Examiner,^ on 
 paper, separate and distinct from the evidence ; but there does not 
 seem ever to have been any particular form for a demurrer by a 
 witness.** The witness should state clearly the gro^uds of his re- 
 fusal to answer ; thus, a witness, demurring on the ground that his 
 answer would violate the confidence reposed in him as a solicitor, 
 must name the party to whom he was solicitor.^ He must also 
 swear that the facts, from the discovery of Avhich he desires to be 
 protected, came to him in his capacity of solicitor to a particular 
 person : for a solicitor, like any other Vvitness, is bound to discover 
 all secrets of his client which he did not come to the knowledge of 
 in his relation of solicitor to his client.** It must also appear, that 
 the knowledge came to him in the character of a protessional ad- 
 viser, and in such character only ; and, therefore, where a demurrei- 
 stated that the witness was the attorney or agent for a person, it 
 
 C.XXII. § 15. 
 
 Demurrer 
 not neces- 
 sary, where 
 witness 
 declines to 
 produce a 
 document 
 under a 
 subpana duces 
 tecum. 
 
 Form of 
 demurrer. 
 
 1 Ante, pp. 571 et. scq. 715, 71G; see also 
 <>reenougli v. Ga kill, 1 M. iSi: K. !(^, lul; 
 (J. 1'. C''Op. t. Broujjii. 'Ji>; Lord \Val>iiig- 
 liiini V. Goooricke, :i Hare, 122, laO; Gore 
 V. iJi.wser, 6 Ue G. & S. SO ; S. G. nnm. Gore 
 t'. Harris, 15.Jur. Jl'!!;; (jarpmael r. I'owis, 
 1 I'hil. Ot"; 'J IJeav. IG; i iKjuias t'. liaw- 
 ling-, 27 iJeav. IJU; 5 .Jur. N. S. U07 ; 
 Marsh v. Keitli, 1 iJr. & S. :ii2\ G Jur. is'. 
 S. Ut'i; I'ord v. 'Icnnanl, 32 Ueav. 162; 
 9 Jur. N S. 21j2; Charlton v (Joomljes, 4 
 Giff. 372; 'J Jur. N. S. 534, V. C. &. 
 
 •^ Wentwor li r. Llovd, 10 II. L. (Ja. 
 (>h'J\ 10 .)ur. .N. S. Uii"l; and see Tiiylor 
 on Kvid. § lni; IJoltoJi «. Goifior.ition of 
 Liverpool, 1 M. ik. K. h«, 'ji, 'jo. 
 
 3 Siicli as, tliat the production of it nniy 
 prove him to Ijc guilty of a crime: see 
 rarkhur>t v. Lowteii, 2 Swanst. 214. 
 
 ■* liradshaw v. liiadsliaw, 1 K. & M. 
 35S; Hope v. Liddell, 2U beav. 438, 439; 
 1 Jur. i\. S. Otio; 7 De G., M. & G. 331. 
 lor form of notice see Vol III. 
 
 fi 15 & lU Vic. c. bti, § 33. Fyr the 
 former practice, see Tippiiia v. CiJates, 6 
 Hare, 10; 11 Jur. luiu; and lor lurinai 
 parts of tiie demurrei-, see Vol HI. 
 
 6 .Morns t>. WiHimiii-, 2 .Moll. 342. 
 
 ^ I'arkhur-t i". Low. en, 2 Swansr. 201. 
 
 "* iM' r^an t>. hliaw, 4 xSlad. 64, OS; 
 Tlionuw I'. Kawlings, 27 Ueav. 140; 5 Jur. 
 K. 5). 007.
 
 [)U 
 
 EVIDKNCE. 
 
 t\X\lI.51- 
 
 Must bo uyow 
 OiUli. 
 
 Must be filed. 
 
 How set 
 down for 
 hearing. 
 
 Service of 
 order to set 
 down. 
 
 Overruling 
 demurrer; 
 
 without 
 prejudice to 
 another; 
 
 or partially. 
 
 was cousiilerod not to bo sutlii-untly |nv<.'iso : for :iii nu;;i'iit may be 
 only a steward or sorvanl.^ 
 
 Ill taking down a di'iniiniT, (lie IvKjim'nu'r oun'lit to take t]»c 
 witness's statement n|n)n oatli ; and it was held, under the tbrnier 
 })raetiee, that where this was not done, the deinurrer must be suj)- 
 ported by atKdavit : as it is neeessaiy the Ct)urt should, in some 
 way or otlier, have the sanction of an oath to the facts on wliich 
 the objection is ibunded.'- 
 
 The demurrer is transmitted by the Examiner to the Record and 
 Writs Clerks' Ottice, antl there tiled ;** aii«l an office copy shoulil be 
 taken by the party to the cause who put the question objected to.* 
 Tlie demurrer may then be set down for liearing, under an order 
 of course, to be obtained on petition, in like manner us demurrers 
 to bills ; * and the validity of the demurrer will be decided by the 
 Court.'' The order to set down the demurrer need ordy be served 
 on the witness demurring,'' except where the witness, being the 
 solicitor of the party in the cause, claims ])rivilege on behalf of his 
 client : in which case, it would seem, the client should also be 
 served with the order.^ 
 
 If the Court, upon argument, considers the demurrer to be bad, 
 it will overrule it: in which case, an order will be made that 
 the witness attend the Examiner, and be examined, or stand 
 committed.^ 
 
 Sometimes, however, where the ground for overruling the de- 
 murrer has been its informality, and the Court has considered that 
 the witness may have a good reason to be excused from answering, 
 it has ordered the demurrer to be overruled, without i)rejudice 
 to the witness, ujjon his re-examination, objecting or demurring to 
 the question, as he may be advised, upon such grounds as he shall 
 state in such objection or demun-er.^" 
 
 Sometimes the Court will allow a demurrer partially ; thus, in 
 Davis V. lieid,^^ where a demurrer was put in to two interroga- 
 tories. Sir Lancelot Shadwell V. C. allowed the demurrer as 
 to one, and part of the other ; and directed that half the costs 
 should be paid by the witness : in analogy to the practice when 
 
 1 Vaillant v. Dodemead, 2 Atk. 524; 
 and see Keid v. I^anglois, 1 M'M. & G. 
 tj27, e37; 14 Jur. 407. 
 
 - I'arkliurst v. Lowten, 2 Swanst. 201 ; 
 Muigaii f. Shaw, 4 Mud. 54; Bowman v. 
 Kodwell, 1 Mad. 2titj; Davis v. Heid, 5 
 ttiiu. 443; lioodale v. Ciawthoin, 4 Ue G. 
 & S. ItT. As to tlie course, where a wit- 
 ness aumuioiiea before a (Jhiet Clerk re- 
 fuses to be sworn, see The Electric Tele- 
 graph Company' of Ireland, Ex parte 
 Buiin, 24 Beav. 137; 3 Jur. N. S. 1013. 
 
 a 15 & 16 Vic. c. bO, § 33. 
 
 ■* Braitliwaite's I'r. 53y. 
 
 6 Braithwaite's I'r. 639; ante, p. 504. 
 
 For form of order to set down, see Seton, 
 1257, No. 10; and for tbrni of petition, see 
 Vol. 111. 
 
 ti 15 & 16 Vic. c. 86, § 33. 
 
 ' Braithwaite's I'r. 53U; 6 Hare, 22,24. 
 
 s Marriott v. Anchor Keversionary 
 Company (Limited), 3 (Jiff. 304; S Jur. 
 N. !S. 51; and see Tipjiins v. Coates, 6 
 Hare, 16, 23; 11 Jur. 1U75. 
 
 "^ I'iirKhurst v. Lowten, 2 Swanst. 205, 
 206 
 
 1" Morgan v. Shaw, and Parkhurst v. 
 Lowten, ubi sup. 
 
 11 5 Sim. 443, 448.
 
 PUBLICATION. 
 
 945 
 
 witness 
 atteud the 
 Examiner 
 again. 
 
 two exceptions are taken, one of which succeeds and the other C.XXII.§16. 
 
 Instead of setting down the demurrer for liearing, the party who Jiotion, that 
 asked the question objected to may move that the witness may 
 attend the Examiner at his own expense, and be further examined. 
 Notice of this motion must be served uj^on the witness.^ Upon 
 hearing this motion, the Court either allows the objection ; - or 
 directs the witness to attend before the Examiner at his own 
 expense.* 
 
 The costs of and occasioned by the demurrer, or objection, are ^^g^g 
 in the discretion of the Court ; * and will be disposed of at the 
 hearing of the demurrer or motion : the general rule being, that 
 they follow the result.^ 
 
 Section XVI. — Publication. 
 
 Publication, in a legal sense, is the oj^en showing of depositions, ^y^iat, 
 and giving cojiies of them to the parties, by the clerks or Exam- 
 iners in whose custody they are.^ 
 
 By the Orders of the Court the depositions of witnesses are not 
 to be disclosed by any of the persons before whom they were taken 
 or by their clerks, but are to be closely kept, if taken in town, by 
 the Examiners at their office; if by commissioners in the country, 
 by the sworn clerk to whom the commission, after its execution, 
 was delivered, until publication passes. 
 
 We have seen that noAV, under the Orders of May, 1845, publi- At what time 
 
 cation is to pass without rule or order on the ex))iration of two ""der Order 
 ^ , /.!• /.I 1- • 1 1 • • of May, 1845. 
 
 months after the filing oi the replication, unless such time expires 
 in "the long vacation or is enlarged by order.'^ And that if the 
 
 1 Re Aston, 27 Beav. 474; 5 Jur. N. S. 
 61.5; 4 1)6 G. & .J. 3:20; 5 .Jur. N. S. 779; 
 Marriott v. Anchor UevLTsioniiry Compa- 
 ny (Limited), 3 Uitr. 304; b Jur. N. S. 
 51. A.s to service, wliere the witness is 
 a .solicitor claiming privilege lor his client, 
 see ibid. ; ante, p. 944. For form of notice, 
 see V'ol. 111. 
 
 2 Marriott v. Anchor Reversionary Com- 
 panj' (Limited), uJn sup. 
 
 3 Jit Aston, ubi sup. 
 
 * i'j & 16 Vic. c. 86, § 33; and sec 
 Sawyer i'. liircliniure, 3 .M. & K. 572; 
 Laiiglcy V. I'lsher, 5 Beav. 443; 7 Jur. 
 1.J4; 14 L. J. N. S. Ch. 302, L. C. 
 
 6 Wright V. Wilkin, 4 Jur. N. S. 527, 
 V C. K.; Lee u. llammerton, 12 \V. K. 
 1*75, V. (J. K. 
 
 I'rac. l{i;g. So-i. 
 
 7 nth Ord. May, 1«4'j. In Massachu- 
 settt, the opeiiin;; and tiling, in the Clerk's 
 olhce, a deposition taken in a suit in Chan- 
 
 VOL. I. 
 
 cerj', is equivalent to a publication in. the 
 English practice. A particular rule for 
 publication is not necessary. Charles 
 kiver Bridge v. Warien Bridge, 7 Pick. 
 344. In Maryland, there is no publication 
 of depositions, but all objections are open, 
 and may be taken at tlie liearing. Strike's 
 Ca.-e, 1 Bland, 06. By Rule 60 of the 
 Equity Kules of the Supreme Court of the 
 United States, it is provided that " imme- 
 diately upon the return of the commissions 
 and deiiusitions containing the te.>-timony, 
 into the Clerk's ollice, jjublicatiuii thereof 
 may be ordered in the (.'lerk's ollice by 
 any Judge of the Ct>urt, upmi due notice 
 to the parties, (jr it may be enlarged, as he 
 may deem rea>oiiable under nil the cir- 
 cumstances. Hut by consent of tlie jiarties, 
 publication of the testimony may at any 
 time puss in the (.lleik's ollice, such con- 
 sent being in writing, and a copy thereof 
 entered in the order book, or indorsed 
 
 tiO
 
 946 
 
 EVIDENCE. 
 
 C.XXII.§10. 
 
 Former 
 practice. 
 
 Rule to pass 
 publication. 
 
 Rule to pro- 
 duce wit- 
 nesses. 
 
 Wiien publi- 
 cation passed. 
 
 Applications 
 to enlarge: 
 when made. 
 
 two montlis after the filing of tho roi>lic':\tion oxj^ire in the long 
 vacation, jniblication is to })ass on the second day of the ensuing 
 iNIiehaehnas Term, unless the time is enlarged by order.^ And 
 that, " if the time is enlarged by order, publication is to pass with- 
 out rule or order, on the e\'}>iration of the enlarged time, unless 
 the enlarged time ex])ires in the long vacation, in Avhich case j)ub- 
 lication is to ])ass without rule or order on the second day of the 
 ensuing Michaehu.is Term, indess the time is further enlarged by 
 order.''"^ 
 
 As these Orders fix precisely the time at which publication is in 
 all cases hereafter to pass, it will not be necessary to enter at 
 length into the details of the practice by which the time of publi- 
 cation has hitherto been determined. 
 
 It is desirable, however, to state that before these Orders came 
 into operation publication passed either by consent or rule. 
 
 A rule to pass publication was in the nature of an order of the 
 Court, directing that publication should pass unless cause was 
 shown by the other side. Before a rule to pass publication could 
 be entered, it was necessary, in most cases, that there should have 
 been a previous order or rule, called a rule to produce witnesses. 
 This rule, which was in fact, a notice giyen by one side to the other 
 to proceed with the examination of his witnesses, was sometimes 
 called the ordinary rule. 
 
 When the prescribed period fi-om the date of the rule to pass 
 publication expired, publication passed as of course, unless the 
 Examiner or the clerk in whose custody the depositions were, had 
 been served with an order to enlarge publication; or unless a 
 commission had been issued at the instance of a defendant, 
 under the provisions of the 17th Order, for the examination of 
 witnesses in the country, the time allowed for the return of which 
 had not expired, in which case publication was directed by 'the 
 17th Order, to stand enlarged until the commission was re- 
 turnable. 
 
 The recent Orders of May, 1845, do not appear to have made 
 any alteration in the practice according to which applications of 
 this kind are hereafter to be made; but care must be taken in 
 ftiture in every case, that the application to enlarge publication 
 be made before the expiration of two months from the filing of the 
 
 upon the deposition or testimony." A 
 commission may be opened liy a Judge in 
 vacation in New Jersey. Den v. Wood, 5 
 Halst. 62. It is a fatal objection to a dep- 
 osition taken under the Judiciary Act of 
 1798, c. 20, § 30, that it was opened out 
 of Court. Beale v. Thompson, b Cranch, 
 7u. A deposition opened by mistake out 
 of Court, may be received and hied in 
 Maine on athdavit of the fact. Law v. 
 
 Law, 4 Greenl. 167. In Massachusetts, a 
 deposition taken under a commission, so 
 opened, may be used in the discretion of 
 the Court, notwithstanding the rule, that 
 " all depositions shall be opened iind filed 
 with the Clerk." Burrell v. Andrews, 16 
 Pick. 561; Goffi'. Golf, 1 Pick. 475. 
 
 1 112th Ord. May. 1845. 
 
 2 113th Urd. May, 1845; Moody v. 
 Payne, 3 John. Ch. 294.
 
 PUBLICATION. 
 
 947 
 
 replication.^ If this j^eriocl has expired, it would appear, fi-om the C.XXII. § 16. 
 
 old j^ractice, that the Master has no longer jurisdiction to allow '~- — y ^ 
 
 any further examination of witnesses, as any subsequent applica- 
 tion, although, in form, one to enlarge publication, is in effect one 
 for leave to examine witnesses notwithstanding pubUcation has 
 passed.^ 
 
 It has before been stated, that the Master has no jurisdiction whenappli- 
 to allow of the further examination of witnesses after the i>eriod fn^,'"^" ^^^^"^^ 
 
 ' bctove pub- 
 has aiTived at which pubucation, accordmg to the general Order, Ucation has 
 
 8 passed, 
 
 passes. ^ 
 
 The Orders of May, 1845, have now, as we have seen, changed Under Orders 
 the manner m which publication passes, and it remains to be seen of May, 1845. 
 whether hereafter any terms or conditions will be annexed to the 
 order to enlarge publication. 
 
 Hitherto in most cases publication would have been enlarged, 
 and a party have had an opportunity given him of examining wit- 
 nesses, even though publication had been enlarged by a precedent J^(^^J ^m 
 order, if any gi-ound for doing it was shown and verified by affi- 
 davit ; * as where witnesses resided in parts of the kingdom at any 
 distance from each other, or where the party applying had not been 
 able to examine all his witnesses under a joint commission, exe- 
 cuted in the cause, by reason of some of the witnesses residing at 
 a gi-eat distance from the party, and others at a great distance from 
 the place of executing the commission; or where witnesses have 
 refused or neglected to attend before the commissioners; or by 
 any accident have not been examined at the execution of the com- 
 mission.^ In Barnes v. Abram,^ publication, though often enlarged 
 before, was enlarged again in order to enable the defendant in a 
 tithe cause to search for records in the Vatican upon affidavit as to 
 the probability of success there. 
 
 Under the practice before the Orders of 1845 came into oper- -when com- 
 ation, when any of the parties were desirous of obtaining a com- mission 
 
 •' • -, 1 ii'i souf^nt to he 
 
 mission returnable at a period subsequent to that at which made retum- 
 
 I)ubhcation would have passed, the proper coxu-se seems to have "|.'i'j,fjJJj'\iino 
 
 been first to ai.ply to the Master to enhirge ])ublication, and then of publica- 
 tion. 
 
 order for en- 
 largement. 
 
 1 To enlarge publication is to stay or 
 postpone the rule for passinf^ publication, 
 and a motion for tiiat purpose may be 
 granted, on reasoiialde cause shown ; but 
 this is ver)- dillerent from a motion to 
 examine witnesses after publication has 
 actually passed llamersley f. Lambert, 
 2 .John".(;h. 432; /xj»<, \t. 948, note, it is not 
 of course to enhirge the rule to pass ]iubli- 
 cation, and it will be refused where there 
 has been great delay. Underhill v. Van 
 Cortlandt, 1 .John. C'li. &00. 
 
 2 Carr v. Appleynrd, 2 M. & C. 470; 
 Anon , 6 15eav. 92; Str'ckland v. Strick- 
 land, 4 Beav, 146. 
 
 8 In New Jerse}', if either party canm.t 
 complete his testimony within the pre- 
 scribed period, his time may be enlarged 
 upon motion, on notice served before the 
 expiration of said time, for reasons veiitied 
 by proof satisfactory to the Chancellor. 
 'J'he time limited for taking testimony 
 shall not be extendeil, except by written 
 consent, or by order ol llie Court, made 
 upon notice. Rules G6, G7. 
 
 ■♦ IIinde,383; Moody v. Leaming, 1 Mad. 
 86. 
 
 6 Hinde, 383. 
 
 c 3 Mad. 103.
 
 048 EVIDENCE. 
 
 ('.XXIl.§lt). an onlor might have been obtained from the Court for tlie com- 
 ^— — Y~ -•' mission.^ Tlie same praetiee ajtpears to eoutinue, except that now 
 the blaster has jurisdiction to lu'ar applications for aihlitional 
 commissions, and to tletermine questions rehiting thereto, 
 Whoroa Where a cross-bill has been tiled before the original suit has 
 
 cross-bill been i)roceeded in, and the defendant to the cross-suit (who is the 
 
 til -tl 
 
 j)laintitf in the original suit) has not ])ut in an answer to the cross- 
 bill, the plaintilf in tlic cross-suit may have publication enlarged 
 in the original suit till a fortnight after the answer to the cross-bill 
 shall have come in, as the discovery afforded by such answer may 
 be of service to him in framing his interrogatories.- But we have 
 before seen, that if publication has been allowed to pass in the 
 original suit, Avitnesses can no longer be examined in the cross- 
 cause concerning matters in issue in the original one." 
 
 It seems, however, that after 2:»i"oceedings have been taken in the 
 original cause, publication can only be enlarged where the defend- 
 ant in the cross-cause is in contempt, unless a special ease is made. 
 In Cook V. JSroomhead,* where the cross-bill was not filed till 
 after a rule to pass publication had been entered in the original 
 suit, and the defendant in the cross-suit was not in contempt, 
 a motion by the plaintiff in the cross-suit to enlarge publication, 
 which was not founded upon any special grounds, was refused with 
 costs.^ 
 
 It may be mentioned here, that the Court of Exchequer has de- 
 In a cross temiiuetl', that an order to enlarge publication till the coming-in 
 of the answer in a cross-cause, shall not be granted, unless upon 
 affidavit of the truth of the facts stated in the cross-bill, and that 
 the answer may furnish a good defence to the original bill." It 
 is not necessary, however, that such affidavit should be made 
 by the party himself, but if made by his solicitor, it will be 
 sufficient.'^ 
 
 Sometimes, when, by accident or surprise, publication passes 
 
 Afterpublica- , ,. ' '•'.-,,.. n , i i 
 
 tion has before a party has examined his witnesses, and ttiere has been no 
 
 passed. blamable negligence, publication will be enlarged ** even after the 
 
 i Maund v. Allies, 4 M. & C. 503. according to the rules of the Court, pro- 
 
 2 Creswick v. (Jreswick, 1 Atk.. 291; see vided some good cause is sliown therefor 
 also Kamkissenseat v. Barker, 1 Atk. 19. upon aiiidavit, as surprise, accident, or 
 
 3 Pascall V. bcott, 1 Ph. 110. other circumstances, which repel the pre- 
 •* 16 Ves. 133. sumption of liiches. Tlie affidavit is indis- 
 
 5 See Uiiderhill v. Van Cortlandt, 1 .John. peusable except in cases of fraud practised 
 Ch. 500; Govenieur «. Klmendorf, 4 .lolin. by the other party. Wood i'. Aliinn, 2 
 Cti. 357; Field D. Schietielin, 7 John. Ch. Sumner, 310. In Hamersley v. Lambert, 
 250. 2 Ji.hn. Ch. 432, it was held, that alter 
 
 6 Edwards v. Morgan, 11 Pri. 939. publication witnesses cannot be examined 
 
 7 Lowe V. Firkins, M'Lel. 10; 13 Pri. unless under verj' special circumstances. 
 21, S. C. hee also iiamersley v. Brown, 2 John. Ch. 
 
 B The time for publication will be en- 428. The deposition of a witness, whose 
 
 large<l, or more pro|)i-rly, the time for examination was not closed until alter 
 
 taking testimony will be enlarged, after publication had passed, was allowed to be 
 
 publication passed, though not in fact made read; behaving been cross-examined b3'
 
 PUBLICATION. 
 
 949 
 
 depositions have been delivered out, upon affidavit that they have 
 not been read. Such an order, however, cannot be made ^ except 
 upon appHcation to the Court itself,^ nor unless some cause is 
 shown why tlie witness was not examined before. And it is a rule 
 of the Court, that the party, as well as his solicitor, must make 
 oath that they have never seen, read, nor been informed of the 
 contents of the depositions taken in the cause, nor will they, &c., 
 till publication is duly passed.^ 
 
 An instance is mentioned in the books, having occuiTcd in Lord 
 Somers's time, in which the Court granted an order to enlarge 
 publication after it had actually passed, although the rule of the 
 Court above stated could not be complied with ; but in that case 
 the solicitor on the other side, being an artM man, having pro- 
 cured copies of his client's depositions, immediately went with 
 them to the adverse solicitor, and showed him the depositions, and 
 read them over to him; the solicitor, being ignorant of the rule, 
 told him he must, notwithstanding, have an opportunity of exam- 
 ining his witnesses, and soon after took his witnesses to the Ex- 
 aminer's office, where he was told they could not be examined, 
 because publication was passed and the depositions delivered out. 
 The solicitor, surprised at this, went to his clerk in Court; to know 
 what he was to do, and told him the whole story, which being laid 
 before the Court, it enlarged publication, and gave the party an 
 opportunity to examine his witnesses, and the adverse party nar- 
 rowly escaped commitment for his misconduct.* 
 
 Where a defendant obtained an order to enlarge publication 
 upon an allegation that it had not passed, which was untrue, the 
 order was held to be informal, and an ap])lication, upon the usual 
 affidavit, that jiublication might be again enlarged, or the evidence 
 taken under the informal order, read at the hearing of the cause, 
 was dismissed with costs.^ 
 
 It seems that the Court will iiot only enlarge publication, upon 
 the proper affidavits, after publication has actually passed, but it 
 will, if a proper case is made, even grant a second commission to 
 examine witnesses, upon being satisfied, by affidavit, that the 
 
 C.XXII. § 16. 
 
 Upon affi- 
 davit that 
 party, &c., 
 has not seen 
 the deposi- 
 tions. 
 
 Granted in 
 one case with- 
 out tlie usual 
 affidavit. 
 
 Publication 
 enlarged upon 
 an untrue 
 allepition, 
 iutormal. 
 
 Commis.iion 
 granted al"ler 
 publication. 
 
 thp opposite p^irty, and no actual abu.se 
 appearing; but sucli practice is irregular. 
 UnderlnU ». Van Corllandt, 2 John. Ch. 
 339. The Court, by extreme rigor, en- 
 deavors to guard agairi.st the nbuse of in- 
 troluciiig lestmiouv to meet tliat which 
 has been produced; and iiccordingly it has 
 been lielil. that if, after publicaiion has 
 pas«ed, the sultstance of the testimony 
 taken on amatei-ial point, ujion which fur- 
 tlier testimony is souirht. lias Iteen dis- 
 closed to the party ii|)i)'yinir, it is too hite 
 to mov(' to o|)en or en ar^'u the rule on 
 affidavit. Moody v. I'aync, 3 John. Cli. 
 
 294. See this subject discussed in Wood 
 V. Mann, 2 Sumner, 31C. 
 
 1 1 Ilarr. (ed. Newl.) 289. 
 
 2 .Viion.. T) Beav. 92; Maund u. Allies, 4 
 M. & C. 503. 
 
 8 Jliirl. ; bnt see LawrcU v. Titchborne, 
 2 Cox, 289; Ilatnerslcv c. Lambert, 2 .lohn. 
 Ch. 432. In this la-'t case the Chancellor 
 remarks, that " such iin oath ought not to 
 be much encouraged. It is jiartly pri>m- 
 issory, it may he dillicull to be strictly 
 kept, and is of dangerous and susi)icious 
 tendencv," p. 433. 
 
 ■» 1 M'arr. (ed. Newl.) 2«9. 
 
 6 Conettiard i-. Ilsisted, 3 Mad. 429.
 
 950 
 
 EVIDENCE. 
 
 C.XXII.§17 
 
 Sorvicc of tho 
 order. 
 
 Afterpublica- 
 
 tion t'lilarf^ed, 
 the other s^ide 
 may exaiuiue 
 at larire. 
 
 Adjournment 
 of cause, 
 where 
 necessary ; 
 
 how procured. 
 
 Copy of inter- 
 rogatories 
 annexed to 
 deposition. 
 
 party njiplying, niul his solicitor, are ignorant, of the contents of 
 tilt.' depositions.^ 
 
 Tho order lor enlarginu; ])ul»Iicat ion- is signed and entered by 
 the Master, and a copy of it must then be served, not only upon 
 the other side, but upon the E.\aminer who took the depositions, 
 and the Clerk of Records and Writs in whose custody the deposi- 
 tions, if taken by commission, are, on or before the (hiy on which 
 publication actually passes." 
 
 This is necessary, as well to authorize the giving out copies of 
 the dej)ositions, and to preclude further examination after the 
 period to which publication has been enlarged, as to authorize the 
 examination of further witnesses.* 
 
 It is a fixed rule of the Court, that if one of the parties, after 
 jiulilicntion has passed, obtains an order to enlarge publication, 
 upon the usual affidavit, the other party may not only cross-exam- 
 ine, but may examine at large, even though he has seen and read 
 the former depositions.^ 
 
 Where a cause has been set down for hearing, and publication 
 is enlarged beyond the day on which the same is set down to be 
 heard, the proper course, if the cause is likely to come on before 
 the depositions are ready, is to apply to the Court for an order to 
 adjourn the hearing for a certain time. An application for this 
 purpose must be made to the Court ° upon motion, of which notice 
 has been duly served, and the order made thereon should be 
 served, in the usual manner, upon the adverse solicitor, before the 
 day on which the cause is to be heard, otherwise the cause, when 
 called on, Avill be struck out of the paper.'' 
 
 Publication being passed, the Examiner or Clerk of Records 
 and Writs, in whose custody the depositions are, is at liberty to 
 permit them to be examined, and to deliver copies of them to the 
 parties. 
 
 When an office copy of the depositions taken on behalf of an 
 adverse party is delivered out, a copy of the interrogatories 
 whereon such depositions were taken is always annexed.® 
 
 Section XVII. — Suppression of Depositions. 
 
 Upon what 
 grounds 
 depositions 
 will be sup- 
 pressed. 
 
 The ground upon which the Court suppressed depositions has 
 been either that the interrogatories upon which they were taken 
 were leading; or that the interrogatories and the dejjositions taken 
 
 1 Turbot V. -, 8 Ves. 315; see also 
 
 Dingle v. Rowe, Wightw. 99; Cutler v. 
 Cremer, 6 Mad. 254; but see Mineve v. 
 Kowe, 1 Dick. 18, 
 
 2 24th Ord. 1833. 
 8 Hinde, 381. 
 
 4 Ibid. 
 
 6 Anon.. 1 Vern. 253. 
 
 6 1 Smith's Ch. Pr. 388. 
 
 7 Hinde, 385, 38C. 
 
 8 Hiude, 395.
 
 SUPPRESSION OF DEPOSITIONS. 
 
 951 
 
 upon them, or the depositions alone, were scandalous ; or else C.XXII. § 17 
 that some irregularity has occurred in relation to them.^ A 
 deposition may also be suppressed, because a witness has disclosed 
 some matter which has come to his knowledge as sohcitor or 
 attorney for the party applying.^ 
 
 The objection that the inteiTogatories are leading can scarcely 
 now be taken, as the Examiner himself either jjuts the questions, 
 or controls those by whom the witnesses are examined. 
 
 Formerly, when any valid objection could be taken to the depo- 
 sitions, it was the practice to move for a reference to the Master, 
 and upon his report to move to suppress the depositions. Xow 
 that the Master's office is abolished, the j^roper course would be to 
 move the Court at once, if any objection could be taken, for an 
 order to suppress the depositions. 
 
 Leading in- 
 terrogatories. 
 
 Keference 
 before Mas- 
 ter. 
 
 1 In such cases tlie depositions are sup- 
 pressed prior to the hearing, and the wit- 
 ness will be permitted to be re-examined. 
 Brown v. Bulkier, 1 McCarter(N. J.), 294, 
 307, 308; Van Naniee t'. Groot, 40 Vt. 74, 
 80; see 1 Hoff. Ch. Pr. 495; Underbill v. 
 Van Cortlandt, 2 John. Ch. 345; Stubbs 
 V. Burwell. 2 Hen. & M. 536 ; Pillow v. 
 Shannon, 3 Terser, 508 ; Gresley Eq. Ev. 
 (Am. ed.) 147-154; Ringpold v. Jones, 1 
 Bland, 90; Perine r. Swiiine, 2 John. Ch. 
 475; Hemphill v. Miller, 10 Ark. 271. It 
 is a fatal defect, if the general interrogatory, 
 " Uo you know any thing further," &c., 
 does not appear to be answered. Richard- 
 son V. Golden, 3 Wash. C C 109; ante, 
 p. 924, note. So if the deposition is taken 
 before persons not named in the commis- 
 sion. Banertr. Day, 3 Wash. C. C.243. So 
 if all proper interrogatories do not appear 
 to have been answered, on each side, sub- 
 stantially. Bell V. Davidson, ib. 328; 
 Nelson v. United States, 1 Peters C. C. 
 235. A deposition was rejected because a 
 witness refused to answer a proper ques- 
 tion; also because it was in the hand- 
 writing of the plaintifTs attorney. Mosely 
 V. Mosely, Cam. & Xor. 522. Depositions 
 taken without notice will be rejected. 
 Honore v. Colmesnil, 1 J. J. Marsh. 525. 
 So a deposition taken after argument of 
 the cause, without special order, will be 
 suppressed. Dangerlield v. Claiborne, 4 
 Hen. & M. 397. Kvidence of a fact not in 
 issue, may, upon motion, before the hear- 
 ing, be suppressed, or it may be rejected 
 at the hearing. Trumbull v. Gibbons, 
 Hal.st. Dig. 174: see Butman v. Ritchie, 6 
 Paige, 390. According to the practice 
 pursued in New York by Cliancelif)r Kent, 
 motions to suppress depositions, jilthough 
 permitted to be made before the hearing, 
 usually resulted unless the point was very 
 clear, in permitting the evidence to stand 
 de bene eM',, and rescrvinj tlie question. 
 1 HoflT. Ch. I'r. 495. It is not in acconl- 
 ance with tlie practice of the Court to 
 suppre.sM testimony as incompetent, before 
 the hearing. Williamson v. More, 1 Barb. 
 
 S. C. 229; Brown v. Bulkley, 1 McCaiter 
 (N. J.), 307. " The question, whether the 
 deposition shall be suppressed," it was re- 
 marked by the Chancellor, in Underbill v. 
 Van Cortlandt, 2 John. Ch. 345, " is a 
 matter of discretion; and in Hammond's 
 Case, Dickens, 50, and in Debrox's Case, 
 cited in 1 P. Wms. 414, the deposition of 
 a witness examined after publication was 
 admitted in the one case, because the 
 opposite party had cross-examined; and in 
 the other, because the testimony would 
 otherwise have been lost for ever." A 
 deposition having been taken after a cause 
 was set down for hearing in the Superior 
 Court of Chancery, and no objection hav- 
 ing been made in that Court, the Court of 
 Appeals will presume that good cause was 
 shown for admitting it. Stubbs v- Bur- 
 well, 2 Hen. & JI. 536; Pillow v. Shannon, 
 3 Yerger. 508. Exceptions to the reading 
 of depositions taken by virtue of commis- 
 sions, issued after the cause in which they 
 may be required is set down for hearing, 
 may be made at any time before the cause 
 is gone into, when called; after which 
 such exceptions would come too late. 
 Foster v. Sutton. 4 Hen. & M. 401 ; see 
 further as to irregularities in faking, &c., 
 depositions, and when they will or will 
 not cause their rejection, Gresley Eq. Ev. 
 (Am. ed.) 147-154; Cravens v. Harrison, 
 3 Litt. 92; Clarke v. Tinsley, 4 Rand. 250; 
 Stubbs V. Bunvell, 2 Hen. & M. 536; 
 Ringgold f. Jones, 1 Bland, 90: Perine v. 
 Swaine, 2 John. Ch. 475; Underbill v. 
 Van Cortlandt, 2 .lohn. Ch. 345. A party 
 is too late to move to suppress a deposi- 
 tion for irregularity after having c.xhihited 
 articles to discredit the witness. Malonn 
 V. A[orris, 2 Moll. 324. The suppression of 
 depositions is a matterofdiscrction. Hrown 
 V. Bulkier, 1 McCarter (N. J.), 294, 308; 
 Underbill v. Van Cortlandt, 2 John. Ch. 
 345. 
 
 2 Sandford v Remington, 2 Ves. J. 189; 
 Bernard v. Papineau, 3 l)c G. & Sm. 498; 
 Attorney-General v. Dew, 3 De G. & Sm. 
 493.
 
 952 
 
 EVIDENCE. 
 
 r..\xii.§i8. 
 
 V ' Skction XVIII. — lie-examination of Witnesses. 
 
 In what cases 
 pcrmitlud. 
 
 ■Where depo- 
 sitions have 
 lit'on sup- 
 iMvsscd tor 
 irroirularitv. 
 
 Because in- 
 terrogatories 
 leading ; 
 
 or where 
 
 some impor- 
 tant fact has 
 been omitted 
 in the orig- 
 inal deposi- 
 tions. 
 
 The Court is ahvnys di'sirous tli.il \\\v examination of witnesses 
 should bo fonipk'tcMl, as nnu-li as })ossible, uno actu, and that, 
 Avhonovor it can be aoconijtlished, no oj)])ortunity should be nf- 
 lorded, allev a witness has once signed his de|)osition,^ and " turned 
 liis back upon the Examiner," ■^ of tampering with him, and in- 
 ducing liim to retract or contradict or explain away what he has 
 stated in his first examination upon a second ; but, notwithstand- 
 ing this unwillingness to allow a second examination of the same 
 witness, there are cases in which, if justice requires that a second 
 examination of the same witnesses should take place, an order 
 will be made to permit it.' 
 
 Thus, where the whole depositions of the witnesses in a cause 
 are supi)ressed, on account of some irregularity in the conduct of 
 the cause, or in the examination of the witnesses, the Court will, 
 when it is satisfied that the iri-egularity has been accidental and 
 unintentional, direct the witnesses to be re-examined and cross- 
 examined upon the original interrogatories.* 
 
 The cases, however, in Avhich the Court will permit the re-ex- 
 amination of the same witnesses after publication, are not confined 
 to those in which the original depositions have been su])pressed 
 for irregularity ; it has, as we have seen, j)ermitted it to be done 
 in a special case, where the dej^ositions had been supi)ressed, 
 because the interrogatories upon which they were taken were 
 leading.^ 
 
 But, even where the original depositions have not been sup- 
 pressed, the Court has frequently made an order, after publication, 
 for the re-examination of witnesses, for the 'purpose of proving 
 
 1 Beames's Ord. 74. 
 
 2 Lord Abergavenny v. Powell, 1 Mer. 
 130. 
 
 8 The re-examination of a witness in 
 Chanceiy rests in discretion, and though 
 granted under ppculiar circumstances, is 
 atraiiist the ordiiiaiy practice of that Court. 
 Be;ich V. Fulton Bank, 3 Wend. 573; 
 Phillips V. Thompson, 1 .John. Ch. 140. A 
 witnes-s, examined while incompetent by 
 reason of interest, may be re-exiimincd 
 after his competency is restored. Haddix 
 V. Haddix, 6 Litt. 202. But a purty will 
 not be allowed to re-exiimine a witness 
 whose memory has been refreshed since 
 his examination closed, exci-pt as to docu- 
 mentary evidence. Noel v. Fitzgerald. 1 
 Hogan, 136; see Byrne v. Frese, 1 Moll. 
 31)6. Nor can a witness, after a hearing 
 and final decree in a cause, be re-examined 
 to explain or correct his testimony taken 
 
 on his examination in chief, and read at 
 the lienring, unless under very special cir- 
 cumstiinces. Grav v. Murrav, 4 John. Ch. 
 412; IliiUock V. Smith, 4 .John. Ch. G49; 
 Sterry v. Arden, 1 iti. 02; Newman v. Ken- 
 dall, 2 A. K. Marsh. 236. 
 
 4 Fresh interrogatories and re-examina- 
 tion have been permitted after publication, 
 where depositions have been suppre-ssed 
 from the interrogatories being leading, or 
 for irregularit}-, or where it has been dis- 
 covered that a proper release has not been 
 given, to make a witness competent. Wood 
 V. Mann, 2 Sumner, 316; see Healey v. 
 Jagger, 3 Sim. 404; Chameau, 6 Beav. 419; 
 Sliaw V. Lindsey, 15 Ves. 380 ; Attorney- 
 General V. Nethercote, 9 Sim. 311. 
 
 6 See Spence v. Allen. Prec. in Chan. 
 493 ; 1 Eq. Ca. Ab. 232 ; Lord Arundel v. 
 Pitt, Arab. 685; Hinde, 398.
 
 RE-EXAMFNATION OF WITNESSES. 
 
 953 
 
 some fact which has been omitted to be provefl u])on the original 
 deposition. This is frequently done upon inquires in the Master's 
 office, under decrees ; -^ and even before the cause has been heard, 
 the Court will entertain applications for the purpose of allowing 
 fresh interrogatories to be administered to ^'ituesses who have been 
 already examined in the cause.^ 
 
 In a case before Lord Erskine,^ an order was made, on the appli- 
 cation of the witness himself, after publication, for his re-examina- 
 tion as to a point, upon which it appeared, by his affidavit, he had 
 made a mistake. The order, however, was confined to permit his 
 re-examination as to that particular point only, and it directed 
 that the other side should have an opportunity of cross-examining 
 him. 
 
 It is to be remarked, that the Court will not only entertain an 
 application for this purpose, after publication has taken place in 
 the cause, but will even at the hearing, where the defect in the 
 eAridence of a particular witness has not been discovered before, 
 permit the cause to stand over, to enable the party to make an 
 application to the Court for permission to re-examine the witness.* 
 
 Sometimes, in cases of this nature, the Court, instead of having 
 the witness i-e-examined, will, if the mistake involves only a verbal 
 alteration, permit the original deposition to be amended.^ 
 
 But before the Court makes an order, either for the re-examina- 
 tion of a witness, or for amending a deposition after publication, it 
 will examine very strictly into the circumstances of the case; and 
 if, upon such examination, it is not satisfied that the error has been 
 wholly accidental, or the effect of mistake or omission either on 
 the part of the witness or of the Examiner, it will refuse the ap- 
 plication.' And, in general, l)efore making an order for the amend- 
 ing of the deposition, it will, unless the- case is very clear, examine 
 both the witness iin(\ the Examinei'.'^ 
 
 In all the cases where a correction has been peiTaitted in the 
 deposition itself, a direction that the witness should reswear his 
 depositions after the alteration, has formed part of the order. 
 
 It was stated IjyLord ITardwicke, in Bishop v. Church,^ that 
 the Court had sometimes directed a witness to attend personally 
 when it had a doubt ; but in that case the witness, having sjjoken 
 
 C.XXTI.§18. 
 
 On the appli- 
 cation of wit- 
 ness himself. 
 
 On applica- 
 tions at the 
 hearing. 
 
 Amendment 
 of deposi- 
 tions, in what 
 cases per- 
 mitted. 
 In what cases 
 the Court will 
 order the at- 
 tendance of 
 the witness 
 and Exam- 
 iner. 
 
 Depositions 
 must be 
 resworn. 
 
 Re-examina- 
 tion by the 
 Court itself. 
 
 1 See post, " Proceedings in Master's 
 office." 
 
 2 Cox V. Allinfrham, .Jac. 337; Turner 
 r. Trelawnev, S> Sim. 453; Bvrne v. Frese, 
 1 Moll. 39fi;' Potts V. Turts, Younge, 343; 
 Bridge v. Hridge. 6 Sim 3"»2. 
 
 8 Kirk r. KtU, 13 Ve«. 286. 
 
 < fox »• AHlTiL'baiii. .Inc. 337. 
 
 6 Howlev V. Kidl.-v, 1 Cox. 281 : 2 Dick. 
 687, S. C; Griells i'. Can^-cll, 2 P. Wnis. 
 646. After pulilicatiou pa^^ned iind the 
 cause set down for hearing, the deposition 
 
 of a witness was allowed to be amended on 
 examination of the witness by tlie (^>urt, 
 he being iiged and very di'af, and a mistake 
 mitde in taking down'liis testimony bv tlie 
 F.xam'ner. Denton v. Jackson, 1 .lohn. 
 Ch. 526. 
 c Ingram v. Mitchell, 5 Ves. 200. 
 
 7 Ihi'L; Cridls (•.(;:insoll.2 P.Wms. 640; 
 Darling r. Stanilord, 1 Dick. 358; Pender- 
 cl V. I'enderel. Kel. 25. 
 
 8 2 Ves. S. 100.
 
 954 
 
 EVIDENCE. 
 
 I'.XXll.^lS. 
 
 ^r 
 
 OnU-r not in 
 i;>'iH'ral in;ulo 
 ln'uuv pulili- 
 cation. 
 
 lU'toro piiMi- 
 i-ation, por- 
 niittod ill 
 Kxaniiuor's 
 otHce. 
 
 Put not after 
 witness lias 
 conchuU'tl 
 his oxaniiiia- 
 tion 
 
 unless by 
 order; 
 
 upon affidavit 
 that he has 
 not commu- 
 nicated tlie 
 eflect of liis 
 cross-exam- 
 ination; 
 
 but he may- 
 be examined 
 by the oppo- 
 site party, 
 
 either before 
 the Exam- 
 iner; 
 
 or before a 
 commis- 
 sioner; 
 
 so tjonerally in his (lojiositioiis as to leave a (loul)t in his mind upon 
 a particular point, he ri'tused to proceed in the cause till the wit- 
 ness had heen e\'aniine(l upon interrogatories before the Master, 
 
 An order to re-(>\ainiiu' a witness, for the purpose of su])plying 
 a defect in Iiis fonncr examination, Avill not, in general, be made 
 before ]iublicatii>n has passed in the cause; the reason of which is 
 the difficulty the Coiut, without seeing the depositions, woidd have 
 in coming to a correct conclusion as to the propriety of granting 
 or refusing the ap])lication.^ 
 
 The reader is reminded here, that where the examination of a 
 Avitness is before an Examiner, either i)arty may, up to the period 
 of jniblication, exhibit new interrogatories for the further exami- 
 nation of the same or of other witnesses there, without an order to 
 warrant it ; but that Avhen a commission is taken out, the practice 
 has hitherto been different.^ It is, however, to be here observed, 
 that the power of exhibiting additional interrogatories for the 
 further examination of a witness already examined before the Ex- 
 aminer is confined to the period of a witness being under examina^ 
 tion. If the examination of the witness has been closed, and he 
 has perfected and signed his deposition (althougli he may be per- 
 mitted to perfect his deposition in some circumstances of time or 
 the like, or by correcting a sum upon view of any deed, book, or 
 writing, to be shown to the Examiner),^ he cannot be again exam- 
 ined on behalf of the party producing him without an order of the 
 Court ; and it seems that such order cannot be obtained, unless 
 upon affidavit that the witness, if he has been cross-examined, has 
 not communicated the effi?ct of his cross-examination to the pasty 
 examining in chief.* Nor will such an order be made, at least be- 
 fore publication, for the purpose of permitting a witness to alter 
 or explain what he has stated upon his first examination, although 
 he may be re-examined as to different matter.' 
 
 But although a witness, after he has closed his examination, can- 
 not be re-examined, on behalf of the party producing him, without 
 an order, he may, if he has been examined before the Examiner, 
 be examined again by the adverse party without an order.^ He is, 
 in fact, in such case, a new witness for the other party proposing 
 to re-examine him, and may not only be examined by such party, 
 but may be cross-exanuned by the party originally producing him. 
 The same rule will also apply to examinations under a commission, 
 where a witness who has been examined by one party may after- 
 
 1 Lord Abergavenny v. Powell, 1 Mer. 
 131; 15att v. Birch, 5 Madr. 66 ; Asbee v. 
 Shipley, ib. 467; Randall v. Hichford, 1 
 Cha. Ca. 25; but see Kn-k v. Kirk, 13 Ves. 
 280; Stanney v. Walmslev, 1 M.&C 361. 
 
 2 Ante, pp. 924, 925; see also Andrews 
 V. Brown, 1 Eq. Ca. Ab. 929. 
 8 Ante, p 929. 
 
 4 Cockorell v. Cholmeley, 3 Sim. 313. 
 fr Turner v. I'relawney, 9 Sim. 453. 
 6 Vauglian v. Worrall, 2_Mad. 322.
 
 EXAMINATION OF ^VITNESSES AFTER PUBLICATION. 
 
 955 
 
 wards be examined by the other party, in chief, as his witness, with- 
 out an order, provided such examination be upon interrogatories 
 which have been produced before the commissioners were sworn. 
 When it is necessary to examine him upon fresh interrogatories, 
 an order to that effect must, as we have seen, be first obtained.^ 
 Thus, where a motion was made on the part of the defendant, that 
 he might be at liberty to exhibit fresh interrogatories for the ex- 
 amination of the phiintiff's witnesses in the suit, on the ground 
 that, after the ■witnesses had been examined, it was discovered that 
 they were interested, Sir Thomas Phmier V. C. made the order,^ 
 which was afterwards confirmed on ap])eal.^ 
 
 It is to be observed, also, that in the above case, a new commis- 
 sion was necessary for the pui-pose of taking the examination of 
 the witnesses to the interrogatory. But even if no new commis- 
 sion had been required, it would have been necessary to have ob- 
 tained an order for the exhibition of the interrogatory before the 
 Examiner; for, as we have seen before, the rule of the Court is, 
 that if a witness has been examined by commissioners in the 
 country, he cannot be examined again before the Examiner, with- 
 out a special order.* 
 
 It is to be mentioned here, that where the Court makes an order 
 for permitting the re-examination of witnesses, it is always coupled 
 with a direction that the other side shall have liberty to cross-ex- 
 amine them,* and that the proceedings upon such re-examination 
 are suVtject to the same rules as those upon ordinary examination. 
 In Bridge v. Bridge^ however, the V. C. of England, upon making 
 an order for re-examination of a witness to part of an interroga- 
 tory (his deposition as to which the Examiner had omitted to take 
 down), made it part of the order, "that publication should pass 
 immediately after t\ie examination or cross-examination (if any) 
 should be concluded, and that the cause should be adjourned, with 
 liberty to the plaintiff to apply to have it restored to the paper 
 when publication should have passed." 
 
 C.XXII.§19. 
 
 unless new 
 interroga- 
 tories are 
 necessary. 
 
 Witness 
 examined 
 before com- 
 missioner 
 cannot be 
 examined 
 before Exam- 
 iner without 
 order. 
 
 Order for 
 re-examina- 
 tion. 
 
 Section XIX, — Examination of Witnesses after Publication. 
 
 After the depositions of witnesses have been published and read jfustbcbr 
 by the parties, a new witness cannot be examined without an ^^'^^'^^^ «rderj 
 order of the Court, which will not be granted unless warranted by 
 
 1 Ante, pp. 924, 025. 
 
 2 Vaualian v. Worrall, ubi supra. 
 
 8 2 Swanst. 39.0; and see Selway v. 
 Chappell, 12 Sim. 1052. 
 
 * See Pearson v. Kowland, 3 Swanst. 
 260, n 
 
 6 See order in Cox v. Allingliani, .lac. 
 345; Stanncy v. Walmsley, 1 M. & C. 
 3C1. 
 
 8 Sim. 352.
 
 956 
 
 EVIDENCE. 
 
 Ni't irraiitfil 
 uitlioiit dilH 
 cultv: 
 
 C.xxii.§io. special circumstances,^ cxccj^t for llio ]nir])ose of providing an ex- 
 ''"" V ' hibit ririi voce at tlic liearing, in wliicli case, as we have seen, an 
 iiiiKss It is order for the examination ot" tlie witness may he obtained on motion 
 i>r..vi«" exhibit or ]>etition ot course.'"' 
 
 rii;iroc,: j^^^ Order for the examination of a fresh witness after publica- 
 
 tion, excejit it be for the purj)ose of discrediting a witness already 
 examined, is not obtained without tiivat difficulty." Cases, how- 
 ever, do frequently occur, in which the Courts will allow the exam- 
 ination of Avitnesses after the dejiositions have been seen ; and even 
 at the hearing of the cause, leave has been given to the parties to 
 examine witnesses to facts which have been omitted to be proved 
 in the ordinary course. This, as Ave have seen, has been frequent- 
 ly done in the case of wills disi^osing of real estates,^ but the prac- 
 tice is not confined to those cases, and other cases have already 
 been mentioned in which the Court has permitted such examina- 
 tions as to different points, either by order made at the hearing, 
 or upon petition or motion, su])ported by ])roper affidavits.*^ In 
 addition to which it may be stated, that an order tor this purpose 
 may be obtained, even where the same point has been examined' 
 to before.*' 
 
 In Neioland v. Horsman^ an order was made for the examina- 
 tion of witnesses abroad, upon new matter stated at the hearing, 
 and not in issue before, upon terms of not delaying an action di- 
 rected to be tried at Law; and in Gage v. -ffi^wfer,* leave was 
 given, after publication, to examine a witness as to a particular 
 fact viva voce, the defendant being at liberty to cross-exami<|^.^ 
 
 It is to be observed, that, in general, if leave is given to examine 
 a witness after publication, and before hearing, a Master is some- 
 times ordered to settle the interrogatories, that they may be con- 
 fined to such points only as were omitted before, and as are now 
 ordered to be examined unto.-*" This, however, is not always done ; 
 and when the object is merely to prove an exhibit, and the inter- 
 rogatory was before filed, it is unnecessary. 
 
 Though, by the orders of the Court, the parties are to make 
 their proof before publication and hearing of the cause, yet after 
 
 iipon refer- 
 ence to the 
 Master. 
 
 1 Willan V. Willan, 19 Ves. 590-592; 
 Hamersley v. Lambert, 2 .John. Ch. 4.32. 
 It seems that new testimony may be taken 
 after publication, to (acts and conversa- 
 tions, occurring after tlic ori)^inal cause is 
 at issue, and publication has passed. The 
 Court may, in the exercise of a sound dis- 
 cretion, allow the introduction of newly- 
 discovered evidence of witnesses to facts 
 in issue in the cause, after publication and 
 knowledge of the former testimony and 
 even after the hearing. But if will not 
 exercise this discretion to let iVi merely 
 corroborative testimony. Wood v. Mann, 
 2 Sumner, 316. 
 
 2 Ante, p. 881; see Wood v. Mann, 2 
 Sumner, 316. 
 
 8 Willan V. Willan, vbi supra. 
 
 4 Ante, p. 858. 
 
 5 Ante, p. 858; Clarke v- Jennings, 1 
 Anst. 173; Gage v. Hunter, 1 Dick. 49. 
 
 8 Coley V. Coley, 2 Y. & J. 44; Green- 
 wood V. Parsons, 2 Sim. 229. 
 V 2 Cha. Ca. 74. 
 8 1 Dick. 49. 
 
 3 See Holies v. Carr, 3 Swanst. 638, 
 where a similar order appears to have been 
 made upon consent. 
 
 10 1 Harr. (ed. Newl.) 274.
 
 EXA3UNATI0X OF WITNESSES AFTER PUBLICATION. 
 
 957 
 
 hearing, if there be a reference to the Master for stating an ac- C.XXII.§19 
 
 count or such like matter, and he shall find any particular point or 
 
 circumstance needful to ground his report upon, which were not 
 
 fully proved, nor could be-properly examined to before the Master, 
 
 he may direct the parties to draw interrogatories to such points or 
 
 circumstances only, and the witnesses are usually examined before 
 
 the Master ujDon such intei-rogatories, if the witness be or reside 
 
 within ticenty miles of London, but, if further otf, and the parties 
 
 desire it, he may by certificate, direct a commission into the 
 
 country.^ 
 
 The most usual cases in which witnesses are required to be 
 examined after jjublicatiou, are those in which their testimony is 
 required for the i:)urpose of showing that a witness already exam- 
 ined is unworthy of credit."^ An examination for this purpose is 
 not, however, a matter of course ; it must have the sanction of an 
 ordei", the leading step towards obtaining which, is the preparing 
 or filing of objections, or "articles" in the Examiner's ofiice (if 
 the depositions impeached be taken in town), or in the Record 
 and Writ Clerks' office (where the depositions have been taken 
 by commission).^ 
 
 These articles may be in the follo^nng form, viz : — 
 
 Articles exhibited by A. B., complainant in a certain cause, noio depending porn, ^f 
 and at issue in the High Court of Chancery, icherein the said A. B. is articles. 
 plaintiff, and C. D. defendant ; to discredit the testimony of E. F., O. H., 
 and J. K., three witnesses examined [before Thomas Halt I'lumer, Esquire, 
 one of the Examiners of the Court'] ,* on the part and behalf of the said 
 defendant. 
 
 1st. The said A. B. doth charge and allege, that the said E. F. 
 hath, since his examination in the said cause, owned and acknowl- 
 edged that he is to x'eceive or be paid, and also, that he doth ex- 
 pect, a considerable reward, gratuity, recompense, or allowance, 
 trom the said defendant, in case the said defendant recovers in the 
 said cause, or the said cause be determined in his favor, and that 
 the said E. F. is to gain or lose by the event of the said cause. 
 2d. The said A. B. doth charge and allege, that the said G. II. 
 
 To discredit 
 another wit- 
 ness 
 
 not granted, 
 unless upon 
 articles pre- 
 viously filed. 
 
 1 1 Harr. (ed. Newl.) 274. 
 
 2 Althougli tlie usual time for examining 
 as to the credit ot'ii witness, is after publi- 
 cation, it seems that it may be done before, 
 [irovided an order tur that purpose be ob- 
 tained. Mill V. Mill, \2 Ves. 4utJ. A wit- 
 ness may be examined to the mere creiiit 
 of the other witn'"ises, whose iletiosition* 
 have be'.ii a;ieady taken and nubli-lied in 
 the cause, but he will not be allowed to be 
 e.\amin<-d, to prove or disprove any fact, 
 material to the merits of the case. Wootl 
 r. Mano, 'i .Sumner, :ilK; Ciresley Kq i^v. 
 (Am. ed.) 13U-144; Jenkins v. t"ldre(lge,3 
 
 Story, 312, 313; Troup v. Sherwood, 3 
 ■lolin. Cli. 558. 
 
 3 Hinde, 374. 
 
 * If the witnesses have been examined 
 by cfimmis.sion, the following words are to 
 be substituted for those witiiin brackets: 
 '• by virtue of a commission, issued out of 
 tlie'sai<l Court, to X. V. and others, direct- 
 ed for the examination of witnesses in the 
 said cause upon certain interrogatories ex- 
 hibited before them, lor that purpose, and 
 which said witnesses were examined in the 
 said cause." Hiude, 375.
 
 958 
 
 EVIDENCE. 
 
 C.XXII.§10. aiul J. K. are persons of bad morals, and of evil fame and character, 
 and that they arc licncrally re|mted antl esteemed so to be ; and 
 tliat the said G. 11. and ,1. K. are persons who have no regard for 
 the nature and eonsecpiences of an oath ; and that they arc persons 
 whose testimonv is not to be credited or believed.'^ 
 
 Use of 
 articles. 
 
 To give notice 
 to the other 
 party, ot" the 
 ground of 
 objection. 
 
 All examina- 
 tions as to 
 credit with- 
 out articles, 
 impertinent. 
 
 Course of 
 proceedings 
 upon articles. 
 
 Oder for 
 leave to 
 examine 
 
 witnesses, 
 motion for 
 must be 
 Epecial. 
 
 The exhibition of these articles is rendered necessary by one of 
 Lord Clarendon's Orders,- winch directs, that the Examiner shall 
 not examine any witnesses to invalidate the credit of other wit- 
 nesses, but by special order of the Court, which is sparingly to be 
 granted, and upo?i excejjtions first put into writing, and filed with 
 the Examiner, tcithoutfiee, and notice thereof given to the adverse 
 party or his clerk, together with a true copy of the said exceptions, 
 at the charge of the party so examining. 
 
 The object for which these articles are required, is to give notice 
 to the party whose witnesses are to be objected to, of the ground of 
 the objection, in order that he may be prepared to meet it. With- 
 out some notice of this description, it would be impossible for the 
 other party to cross-examine the witnesses to be adduced, for the 
 purpose of discrediting the character of his witness ; for as the 
 rule of the Court is, that you cannot examine to any points not 
 put in issue by the pleadings, and as the character of a witness 
 could not by that means be put in issue, it would be impossible 
 that the party should know, that the witnesses examined by his 
 adversary were for the purpose of discrediting his own. For this 
 reason, the Court MJt only requires notice to be given of an inten- 
 tion to discredit a witness, in the form of articles as above stated, 
 but it considers all examinations, as to the character of witnesses, 
 wdthout the previous exhibition of such articles, as impertinent, 
 and will order them, and the interrogatories upon which they are 
 taken, to be suppressed.^ 
 
 The articles having been filed, a certificate thereof must be pro- 
 cured from the Examiner, or fi-om the Record and Writ Clerk with 
 whom they are filed, and an application must be made to the 
 Court, grounded upon the certificate, for leave to the party apply- 
 ing to examine witnesses thereon, and if necessary for a commis- 
 sion, to take their depositions in the country.^ 
 
 Although by Lord Clarendon's Order, .above referred to,^ an 
 order for leave to examine witnesses to credit, is termed a special 
 order, it is usually granted as a matter of course ; "^ and may be 
 obtained either by motion, or by petition at the Rolls, without 
 
 1 Hinde, 376. 
 
 2 Beames's Ord. 187. 
 
 3 Mill V. Mill, 12 Ves. 406. 
 
 4 Hinde, 377. 
 
 6 Beames's Ord. 187. 
 
 6 Kussell V. Atkinson, 2 Dick. 532.
 
 EXA3IIXATI0N OF WITNESSES AFTER PUBLICATION. 959 
 
 affidavit, upon the certificate of articles being filed.^ It seems, C.XXII. §19. 
 
 however, that if made by motion, it should be upon notice ; - and '— — y ' 
 
 that if the application is made after considerable delay, and the 
 healing of the cause will thereby be deferred, the Court will refuse 
 the order, or quahfy it, by dkecting that it shall not delay the 
 hearing of the cause.^ There is, however, no precise time Avithin 
 which the application must be made.* 
 
 Where a commission is required, it has generally been directed "Where com- ' 
 to the same commissioners as w^ere named in the fonner conimis- ™qi^eVr 
 sion,* but a commission will not be dh-ected for the purpose of not granted 
 examining witnesses abroad, for which purjjose, Ireland is con- abroad, 
 sidered as a foreign part, unless in case of great emergency ; and 
 where it is sworn, that no person in England can prove any thing 
 as to the witness's credit.* If a party, who has obtained a com- Must be ese- 
 mission to examine a Tsitness to credit, delays the execution of it hearbig!*"'^^ 
 till after the decree, he A^all be made to pay the costs.'' The 
 method of proceeding under an order of this nature, whether be- 
 fore the Examiner or under a commission, is precisely similar to 
 that pointed out in ordinary cases. 
 
 The order usually directs, that the party applying be at liberty Nature of 
 to examine witnesses, " as to credit, and as to such particular facts pej^^j^ed ^"^ 
 only as are not material to what is in issue in the cause ; " ^ and 
 under it the party is at liberty to examine witnesses, not only to 
 the general character of the witness whose credit is impeached, 
 but also for the puipose of contradicting particular tacts sworn to 
 by the witness, provided such facts are not material to the issue 
 in the cause,^ as in Purcell v. M^^Namara^^ where the matter to be 
 examined to was, whether the witness had not been a woollen- 
 draper and insolvent, which, upon his cross-examination, he had 
 denied ; or in Chioers v. Bax,^^ where the articles charged, that 
 though the witness, in her deposition for the plaintiiF, had deposed 
 that she lived with him as his milkmaid in 1775, she did not live 
 with him in that or any other capacity till 1786, and that she had 
 confessed to that eflect, and that she had been prevailed ui)on so 
 to depose at the instigation of the plaintiff's tithing-man, who was 
 another witness for the plaintiff, and for a reward. In Ambrosio 
 
 1 Hinde, 377 ; Watmore v. Dickson, 2 V. taken after publication and before hearing, 
 & B. '207. but the interrogatories mu>t be so shaped, 
 
 2 ll)id. as to prevent the party, umicr color of an 
 8 White V. P'ussell, 19 Ves. 127. exMniination as to crcdil, lioni procuring 
 * I'iggotl V. Croxhali, 1 S. & S. 467. testimony to overcome tliat already taken 
 
 6 Wood V. Ilaiiimertoii, 9 Ves. 145. and publisheil in the cause. Gass v. Slin- 
 « CallitRhan y. Uochfort, 3 Atk. 043. son, 2 Sumner, OOO; Wood v. Maim, 2 
 
 7 White V. Fussell, 1 V. & B. 151. Sumner, 310; Iroup v. Sherwood, 3 John. 
 
 8 Purcell V. M'Namara, 8 Ves. 324 ; Cli. 55«. 
 Wood V. Hammerton, l» Ves. 140; Piggott l» U hi supra. 
 
 V. Croxhiill, 1 .S. & .S. 407. " Scacc; cited 8 Ves. 324. 
 
 " This proceeJing may, ordinarily*, bo
 
 960 
 
 EVIDENCE. 
 
 When? to ]iar- 
 tii-iilar l":u't, it 
 must he con- 
 lined to facts 
 not in issue. 
 
 O.xxir. §10. V. Francia^^ the articles elinrged tlint one of the witnesses who 
 hail been examined lor a defemhint, to nine out of seventeen hiter- 
 rogatories, by the description of Mary AVhite, widow, was the wife 
 of the di>fen(hint, and known to be such at the time of the exam- 
 ination, suggested that if slie was not his wife, she lived with him, 
 and an iniitro[ier intimacy subsisted between them, and the order 
 was that the iilaintilf should be at liberty to examine to that fact, 
 anil also to the competence and credit of the witness. 
 
 It seems, also, that witnesses maybe examined to discredit other 
 witnesses, by })roving that })reviously to their examination, they 
 had made declarations contrary to their depositions.'^ 
 
 But, although the order permits the examination of witnesses to 
 j)articular facts as well as to general credit, for. the purpose of con- 
 tradicting a witness jji-eviously examined, such facts must be 
 strictly confined to those not in issue in the cause/ ^ and you can 
 only, in examining as to the credit of the witness, put general ques- 
 tions, as "wliether you would believe the witness upon his oath."* 
 It is not coni])etent, even at Law, to ask the ground of that opinion, 
 but only the general question is permitted.^ The regular mode of 
 examining into general character, is to inquire of the witnesses 
 whether they have the means of knowing the former witness's 
 general character, and whether up)on such knowledge they would 
 believe him upon his oath.** 
 
 It is to be noticed, that although articles may be exhibited as to 
 the credit of witnesses after publication, they are never allowed 
 as to their cotyipetency^ because it is said this might have been 
 examined to and inquired into upon the examination ; "^ and it is 
 for this purpose that a notice of the wdtuess's name and place of 
 abode is left with the solicitor of the opposite party before exam- 
 
 1 oth of Auo;ust, 1746; cited ihid. 
 
 2 Piggott V. CroxhiiU, 4 8. & S. 477. 
 <* Aiioii., 3 v. vfc M. 94; see Troup V. 
 
 Sherwood, 3 John. Ch. 55^, and next note 
 above; Jeiiivins v. Khiredge, 3 Story C. U. 
 31:i, 313; \\ooa v. Mami, 2 Sumner, 316. 
 
 * Anon , 3 V. &, B. 94. Upon sueh ex- 
 amination, ihe rule of evidence, as to iui- 
 peaciiing the credit of witnesses, is the 
 same iu Equity as at Law. Ihe inquiry 
 nmst Oe geneial as to the general chai acter 
 of the witness for veracity. Trou[) v. Sher- 
 wood, 3 Jotin. Ch. 558. The practice in 
 reference to the extent of inquiry that may 
 be m-.ide respecting the character of the 
 witness to impeach his credit, and the 
 questions that may be put, is not uniform 
 ill ttie American States. See 1 Greenl. 
 Ev. § 461; Anon., 1 Hill (S. C), 251, 258, 
 ^59; Hume c Scott, 3 A. K. Alarsli. 261, 
 26-.i; State t. iioswell, 2 Dev. Law, 209, 
 210; I'eople v. Mather, 4 Wend. 257, 258; 
 Phillips V. Kinglield, 19 Maine, 375; Gass 
 ». Stinson, 2 Sumner, 610; W ike o. Light- 
 
 Articles never 
 allowed as to 
 competency. 
 
 ner, 11 Serg. & R. 198; 1 Phil. Ev. (Cow- 
 en & Hill's ed. 1839) 291-293, notes (530) 
 (531); 2 id.(Cowen& Hill's notes) p. 763- 
 770. 
 
 5 Carlos V. Brook, 10 Ves. 49, 50. 
 
 <> Phil. & Amos, 925. The regular mode 
 of examining into the general reputation 
 is to inquire of the witness, whether he 
 knows the general reputation of the person 
 in question, among his neighbors ; and what 
 that reputation is, whether it is good or 
 whether it is bad. In tlie English Courts 
 the course is lurther to inquire, whether 
 (romsuch knowledge, the witness would be- 
 lieve that person upon his oath. In the 
 American Courts the same course has been 
 pursued; but its propriety has been ques- 
 tioned, and perhaps the weight of authority 
 is now against permitting the witness to 
 testify to his own opinion. 1 Greenl. Ev. 
 § 461; Gass v. Stinson, 2 Sumner, 610; 
 Kimniel v. Kinimel, 3 Serg. & \\.. 337, 338; 
 Phillips V. Kinglield, 19 Alaine, 375. 
 
 7 Callaghan v. Uochfort, 3 Atk. 643.
 
 EXAMENATIOX OF WITNESSES AFTER PUBLICATION. 
 
 961 
 
 Fumi of inter- 
 rogatories. 
 
 ination ; and that, under the old practice, the "witness himself was C.xxii. §19 
 produced.^ 
 
 Interrogatories adapted to the inquiry intended, must be drawn 
 and filed in the same manner as upon examination in chief, and 
 the witnesses examined thereon, either by commission or at the 
 Examiner's office. The other party may cross-examine those wit- 
 nesses, as to their means of knowledge and the grounds of their 
 opinion, or may attack their general character, and, by fresh e\'i- 
 dence, support the character of his own witness.- 
 
 The rules as to passing publication, &c., are the same, 7niitatis Publication, 
 mutandis^ as those to be observed in ordinary cases. 
 
 Where an objection is established to the competency of a wit- 
 ness, his dejiosition cannot be read ; ^ but, where the objection is 
 only to his credit, it must be read and left to the consideration of 
 the Court on the whole evidence of the case.^ 
 
 &c. 
 
 1 Hinde, 375. 
 
 2 Hinde. 375, 377. If the witness be im- 
 peached, evidence of his general good 
 character has been held admissible. Rich- 
 mond f. Kichmond, 18 Yerger, 343; 1 
 Greenl. Ev. § 461 ; see People v. Davis, 21 
 Weud. 309. 
 
 3 The deposition of a disinterested per- 
 son who afterwards becomes interested, 
 mav be read. Hitchcock v. Skinner, 1 
 Ho'ff. Ch. 21. 
 
 4 Dixon V. Parker, 2 Ves. 219, 220. 
 
 END OF VOL. I. 
 
 61
 
 
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